Bangalore District Court
Narayan Kumar V J vs Jayagopal N on 1 April, 2024
O.S.No.3691/2016 O.S. No.7939/2016
KABC010116342016 KABC010269662016
IN THE COURT OF LXIV ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU CITY
Dated this 1st day of April, 2024
-: P R E S E N T :-
Smt. Kalpana M.S.,
B.Sc., LL.M.,PGD-CLCF.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
O. S. No.3691/2016 AND
O.S.NO.7939/2016
PARTIES IN O. S. No.3691/2016
PLAINTIFF : Sri. V.J. Narayan Kumar,
Aged about 51 years,
S/o. Late N.V.Jayagopal,
31/1, 4th Main, 4th Block,
Tyagaraja Nagar,
Bengaluru-560 028.
(By Sri.Achappa, A.B Advocate)
/Vs/
DEFENDANT : Sri. N.V. Jayagopal,
Since deceased represented by
his legal heir
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O.S.No.3691/2016 &
O.S.No.7939/2016
1(a) V.J. Bobby Gayathri @
Yashashwini @ Bobby
Gayathri Sujay,
Aged about 48 years,
D/o N.V. Jayagopal,
Having her permanent
address at No.2, 1st Floor,
Jagadishwarnagar,
Jwalapur, Haridwar,
Uttarakhand.
Temporarily r/at No.31/1,
1st Floor, 4th Main, 4th Block,
Thyagarajnagar,
Bengaluru-560 028.
(By Sri. AGNP., Advocate )
1. Date of institution of the : 18.05.2016
suit
2. Nature of the suit : Injunction Suit.
3. Date of commencement : 02.11.2023.
of recording of evidence
4. Date on which the : 01.04.2024.
judgment was
pronounced
5. Duration : Years months days
07 10 13
3
O.S.No.3691/2016 &
O.S.No.7939/2016
PARTIES in O. S. No.7939/2016
PLAINTIFF : Sri. V.J. Narayan Kumar,
Aged about 44 years,
S/o Late N. Jayagopal,
31/1, 4th Main, 4th Block,
Tyagaraja Nagar,
Bengaluru-560 028.
(By Sri.Achappa. A.B Advocate)
/Vs/
DEFENDANT : V.J.Bobby Gayathri @
Yashashwini @ Bobby Sujay,
Aged about 42 years,
D/o. Late N.V.Jayagopal,
Having her permanent
address at No.52, 1st Floor,
Jagadishwarnagar,
Jwalapur, Haridwar,
Uttarakhand.
Temporarily staying at
one of the Bed room
of the premises bearing No.31/1,
1st Floor, 4th Main, 4th Block,
Thyagrajnagar,
Bengaluru-560 028.
(By Sri. AGNP., Advocate )
1. Date of institution of : 18.11.2016
the suit
2. Nature of the suit : Suit for Injunction and
declaration
4
O.S.No.3691/2016 &
O.S.No.7939/2016
3. Date of : 02.11.2023
commencement of
recording of evidence
4. Date on which the : 01.04.2024.
judgment
was pronounced
5. Duration : Years months days
06 11 13
JUDGMENT
Suit in O.S.No.3691/2016 is fled by the plaintiff V.J. Narayan Kumar against his father N.V.Jayagopal for the following reliefs;
a) Permanent injunction restraining the defendant or any person claiming under the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over the schedule property.
1.a) Declaration to declare that, execution and registration of the Gift Deed dated 04.10.2016 in favour of the defendant No.1(a)by the defendant is null and void and not binding on the right of the plaintiff pertaining to 5 O.S.No.3691/2016 & O.S.No.7939/2016 the suit schedule property bequeathed in his favour under the Will dated 24.02.2005 by the mother of the plaintiff.
1.ab) Declaration to declare that, all or any right created including but not limited to having registered and or executed any deed of conveyance or transfer under the Transfer of Property Act by the defendant No.1(a) in favour of any third party based on the strength of the Gift Deed dated 04.10.2016 are null and void not binding on the plaintiff.
1.ac) Declaration to declare that, the plaintiff is not liable for repayment of loan, charge or encumbrance created over the property by the defendant No.1(a) subsequent to the registration of the Gift Deed pertaining to the suit schedule property.
1.ad) Declaration to declare that, defendant No.1(a) shall not relay and claim on the suit schedule property based on any Will if executed and registered by the defendant (i.e. Late N.V.Jayagopal) on behalf of the defendant No.1(a).
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O.S.No.3691/2016 & O.S.No.7939/2016
1.ae) Declaration to declare that, the defendant No.1(a) and or her agent, henchmen, or any person claiming, through, for and on behalf of the defendant No.1(a) from interfering with the peaceful possession of the suit schedule property and in the alternate if the defendant No.1(a) or at her instance if any person has taken possession of the suit schedule property during the pendency of the captioned case to hand over the same to the plaintiff and put him in possession of the suit schedule property.
b. For permanent injunction restraining the defendant, any person claiming any right, title or interest through, for and on behalf of the defendant from interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule property and or consequently, evict the plaintiff from the suit schedule property without observing due process of law. 7
O.S.No.3691/2016 & O.S.No.7939/2016
2. The factual matrix of the case of the plaintiff is as under;
The plaintiff is the son of the defendant. The mother of the plaintiff Late Smt. Lalitha Lakshmi @ Lalitha Jayagopal being the absolute owner of the suit schedule property executed registered Will dated 24.02.2005 bequeathed suit schedule property in favour of the plaintiff with life interest to the defendant. After the death of plaintiff's mother, sister of the plaintiff has been insisting the defendant to transfer schedule property to her name in order to enable her to live a peaceful life without being harmed by her husband. The defendant is more attached to his daughter than that of the plaintiff as he got married against the wish of his parents. Therefore, the defendant was insisting the plaintiff to relinquish/release his right over the suit property in favour of his sister. In the first week of March 2016, the defendant informed the plaintiff that, he is not keeping a good health. Even during the said period, the defendant once again insisted the plaintiff to 8 O.S.No.3691/2016 & O.S.No.7939/2016 release the suit property in favour of his daughter. Plaintiff refused to release the said property. However, he is continuing to take care of the defendant by meeting his day to day necessities including medical needs. The defendant has also expressed his intention of alienating the schedule property to third parties in order to defeat the legitimate right of the plaintiff over the suit schedule property. In pursuance of the said intention, during pendency of suit, he gifted the suit schedule property in favour of defendant No.1(a)/ his daughter vide Gift Deed dated 04.10.2016 registered before Basavanagudi Sub- Registrar, Bengaluru. As per the Will of the mother of the plaintiff, the suit schedule property is bequeathed in favour of the plaintiff. The defendant has no manner of right to gift the said property in favour of defendant No.1(a). The cause of action arose for the suit on the date of death of mother of the plaintiff and when the defendant expressed his intention to create third party rights over the suit 9 O.S.No.3691/2016 & O.S.No.7939/2016 schedule property. On these set of facts, plaintiff has sought for the reliefs sought in the suit.
3. In response to the summons, defendant has appeared through advocate and filed written statement admitting the relationship and that Smt. Lalitha Jayagopal was the absolute owner of the suit schedule property. This defendant categorically denied plaint averments. It is specifically denied that, the suit schedule property was bequeathed in favour of the plaintiff with life interest to the defendant to use and enjoy the property and rents there from during his life time. The averments that defendant is more attached to his daughter rather than the plaintiff due to his inter caste marriage is denied. In fact, the plaintiff was pressurizing the defendant to transfer the suit schedule property in his favour. The defendant did not agree to his demand and came out of his house and started residing in the suit property. That on 07.05.2016 the defendant came to the suit property and asserted and 10 O.S.No.3691/2016 & O.S.No.7939/2016 prevented the defendant from taking food, water and abused with filthy language and threatened to kill him. When the defendant was in helpless situation, plaintiff carried away all the documents of the immovable properties and key of the house, income tax assessment returns, medical reports. The defendant has lodged the police complaint. The plaintiff is not in possession of the suit schedule property. He left the house in the year 2000 after marrying other caste girl. Plaintiff has no right over the suit schedule property. Subsequent to the death of his wife the defendant has become absolute owner of the suit property by mutating khata in his name. Being an absolute owner, he voluntarily executed registered Will bequeathing the suit property in favour of his daughter without anybody's force and coercion or pressure. There is no cause of action for the suit. The suit is under valued for the purpose of court fee and jurisdiction. Plaintiff is not in possession of the property and hence not entitled to the 11 O.S.No.3691/2016 & O.S.No.7939/2016 prayer sought in para (a) and (b) of the suit. On all these grounds, prays for dismissal of the suit with costs.
3(1): During the pendency of the suit, defendant died and his daughter was brought on record. She has filed written statement denying the plaint averments except relationship of the parties. She re-asserted the contentions taken by her father in his written statement by stating that, her mother Smt. Lalitha Lakshmi @ Lalitha Jayagopal was the original owner of the suit property. She bequeathed the property in favour of her husband i.e., defendant through registered Will dated 24.02.2005. After the death of Smt. Lalitha Jayagopal, deceased defendant succeeded the suit schedule property as absolute owner. He executed registered Gift Deed dated 04.10.2016 in favour of defendant No.1(a). The plaintiff has filed this suit with malafide intention to knock off the property. He has twisted the facts of the case to suit his ulterior motives. Plaintiff is claiming his illusionary ownership and 12 O.S.No.3691/2016 & O.S.No.7939/2016 possession of the suit schedule property. He is not entitled to seek restraint order against alienation of the suit property against true owner of the suit property. This suit is not maintainable against the deceased defendant, who was absolute owner under the registered Will and also against the defendant No.1(a) to become the owner of the property under registered Gift Deed. This suit for bare injunction will not survive against the defendant No.1(a). The plaintiff is required to pay the court fees on the market value of the property. The court fee paid by the plaintiff is insufficient. On all these grounds, prayed for dismissal of the suit.
4. Suit in O.S.No.7939/2016 is fled by the plaintiff V.J. Narayan Kumar against his sister Bobby Gayathri Sujay for the following reliefs;
4(1): For permanent injunction restraining the defendant, any person claiming any right, title or interest through for and on behalf of the defendant from alienating 13 O.S.No.3691/2016 & O.S.No.7939/2016 or creating any third party right over the suit schedule property including but not limited to encumbering the property in any manner.
4(2): For permanent injunction restraining the defendant, any person claiming any right, title or interest through, for and on behalf of the defendant from interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule property and or consequently evict the plaintiff from the suit schedule property without observing due process of law and to award costs.
5. The factual matrix of the case of the plaintiff is as under;
The plaintiff is the son of the defendant. The mother of the plaintiff Late Smt. Lalitha Lakshmi @ Lalitha Jayagopal being the absolute owner of the suit schedule property executed registered Will dated 24.02.2005 and bequeathed suit schedule property in favour of the plaintiff 14 O.S.No.3691/2016 & O.S.No.7939/2016 with life interest to the father of plaintiff and defendant to use and enjoy the property and rents there from during his life time. After the death of plaintiff's mother, defendant has been insisting his father to transfer schedule property to her name in order to enable her to live a peaceful life without being harmed by her husband. Father is more attached to defendant than that of the plaintiff as he got married against the wish of his parents. Therefore, father of the plaintiff, was insisting him to relinquish/release his right over the suit property in favour of defendant. Plaintiff refused to release the said property. Father of the plaintiff has also expressed his intention of alienating the schedule property to third parties in order to defeat the legitimate right of the plaintiff over the suit schedule property. Thus, plaintiff has filed O.S. No.3691/2016 against the father of the plaintiff seeking restraint order against alienation. However, during the pendency of the suit, he gifted the suit schedule property in favour of defendant vide Gift Deed dated 04.10.2016 registered before Basavanagudi Sub- 15
O.S.No.3691/2016 & O.S.No.7939/2016 Registrar, Bengaluru. As per the Will of the mother of the plaintiff, the suit schedule property is bequeathed in favour of the plaintiff. The father of the plaintiff and defendant has no manner of right to gift the said property in favour of defendant. Plaintiff has been continuous possession of the suit schedule property in addition to the father of the residing therein with his limited right vested by virtue of the Will.
5(1): After the death of the father on 29.10.2016, the defendant all of a sudden demanded the plaintiff to vacate the premises and hand over the possession of the suit schedule property, on the guise of the Gift Deed executed by the father. The alleged Gift Deed executed by the father of the plaintiff in favour of the defendant fraudulently to defeat the legitimate right of the plaintiff accruing to his benefit under the Will of the mother of the plaintiff. The said Gift Deed was conveyed during the pendency of O.S.No.3691/2016. Since father of the plaintiff had limited life interest over the suit schedule property under the Will 16 O.S.No.3691/2016 & O.S.No.7939/2016 of the mother of the plaintiff, he had no right to convey the suit property to any third party including the defendant. The defendant is attempting to forcefully vacate the plaintiff from the suit schedule property and alienate the said property in favour of third parties. The high handed acts of the defendant cannot be controlled without indulgence of this court. Hence, it is pleaded that the cause of action for the suit arose on 11.11.2016, the date when the defendant attempted to restrain the plaintiff from entering into the suit schedule property and continuous till the day when the police personnel forcefully took the plaintiff out of the suit schedule property at the instance of the defendant, further on 11.11.2016, when the defendant expressed her intention of creating third party right over the suit schedule property. On these set of facts, plaintiff has sought for the reliefs sought in the suit.
17
O.S.No.3691/2016 & O.S.No.7939/2016
6. In response to summons, defendant has appeared through advocate and filed written statement admitting the relationship that plaintiff is elder brother of the defendant. This defendant has also admitted the existence of the registered Will dated 26.02.2005 and also gift deed executed by the father of the plaintiff in favor of Defendant on 04.10.2016. She denied other averments of the plaint. It is stated that the schedule property was purchased by the mother of the defendant and the katha stands transferred in her name and after her death, the katha stood in the name of the father of the defendant. Father of the defendant who acquired absolute right of the schedule property by virtue of the Will executed by the mother of the defendant, has gifted the schedule property and put the defendant in possession. The possession of the defendant is valid legal and sustainable. The plaintiff claiming his rights on the basis of the Will and the said Will is manifestly clear that the plaintiff is residing separately with his wife and child. Therefore, the plaintiff 18 O.S.No.3691/2016 & O.S.No.7939/2016 was never in the possession of the property, at any point of time. The plaintiff admits in the plaint that, he visits only during weekends and frequent intervals. He has made false allegations regarding his continuous possession of the suit property with malafide intention and ulterior motive for the purpose of this case. The defendant has acquired the rights over the schedule property on basis of the gift deed executed by the father of the defendant and is in possession of the schedule property and she has no intention to alienate the property. The plaintiff has no manner right, title or interest over the schedule property nor in the possession of the said property. When the schedule property was conveyed under the Gift deed to the defendant by her father, rights contended by the plaintiff is imaginary. Relief of injunction for protecting the possession and from alienating the schedule property is neither available in law or on facts of the case. The plaintiff to create hurdles and unwarranted problems attempted to tress pass into the schedule property claiming to be a 19 O.S.No.3691/2016 & O.S.No.7939/2016 practicing advocate. The defendant to protect the illegal interference had to file Police complaint and a case was also registered. In spite of indifferent attitude of the plaintiff, the parents of the defendants has provided high rent earning properties situated at Lalbagh, Fort Road, Bengaluru. A registered Will executed by the father of the defendant goes to show the bequeathing of the said properties and also indifferent attitude of the plaintiff with his father. The plaintiff has admitted in para No.11 of the plaint that he was taken away from the schedule property and thus, the plaintiff has admitted that, he is not in possession of the schedule property. There is no cause of action to the suit. The plaintiff having produced the gift deed ought to have sought for declaration to cancel the said deed and therefore, the suit is not sustainable in the present form. The suit is liable to be rejected for non payment of the proper court fee. On all these contention, the defendant has sought for dismissal of the suit with exemplary costs.
20
O.S.No.3691/2016 & O.S.No.7939/2016
7. Considering the averments made in the plaint and denials made in the written statements, my learned predecessor -in-office has framed the following;
ISSUES IN O.S. NO.3691/2016
1. Whether the plaintiff proves that he is entitled to the decree of permanent injunction restraining the defendant or anybody claiming on behalf of the defendant from alienating or creating any 3rd party right over suit schedule property ?
2. Whether the plaintiff proves that he is entitled to get the relief of permanent injunction restraining the defendant or anybody claiming on behalf of the defendant from Will being created by the defendant opposed to the Will of the plaintiff's mother pertaining to suit schedule property ?
3. Whether the plaintiff proves that he is entitled to the relief of permanent injunction restraining the defendant or any person claiming on behalf of the defendant from interfering with peaceful possession and 21 O.S.No.3691/2016 & O.S.No.7939/2016 enjoyment of the plaintiff over the suit schedule property?
4. Whether the plaintiff proves that he is in lawful and peaceful possession of suit schedule property as on the date of suit?
5. Whether the plaintiff proves that he is entitled to the relief of permanent injunction against the defendant restraining from eviction from suit schedule property without observing due process of law?
6. Whether plaintiff is entitle for the relief sought for?
7. What Order or Decree?
ADDITIONAL ISSUES IN O.S. NO.3691/2016
1. Whether the plaintiff proves that, the registered Gift Deed dated 04-10-2016 executed by the defendant in favour of defendant No.1(a) is null and void and not binding upon him?
22
O.S.No.3691/2016 & O.S.No.7939/2016
2. Whether the suit is properly valued and court fee paid is sufficient?
3. Whether the defendant No.1(a) proves that, suit in the present form is not maintainable without seeking declaratory relief as contended in her written statement ? ISSUES IN O.S. NO.7939/2016
1. Whether plaintiff proves that, he is in actual and lawful possession over the suit property as on the date of suit?
2. Whether plaintiff further proves that, defendant illegally trying to alienate suit property to third person in order to defeat the right of plaintiff in respect of suit property?
3. Whether plaintiff further prove that defendant caused illegal interference in his peaceful possession and enjoyment of suit property?
4. Whether suit in the present form is maintainable without seeking declaratory 23 O.S.No.3691/2016 & O.S.No.7939/2016 relief as contended in written statement of defendant?
5. What Order or Decree?
9. During the pendency of the suit in O.S.No.7939/2016, the plaintiff has filed an interim application U/s.151 of CPC to club this suit with O.S.No.3691/2016. Considering the no objection by the defendant, this court vide order dated 21.08.2017 allowed I.A. No.IV and clubbed O.S. No.7939/2016 with the O.S. No.3691/2016 with an observation to record common evidence in O.S. No.3691/2016.
10. In order to prove their case, plaintiff examined himself as PW.1 and got marked 20 documents at Ex.P.1 to Ex.P.20(a). Defendant herself has examined as DW.1 and got marked 14 documents from Ex.D.1 and Ex.D.14.
11. Heard arguments. Perused the materials on record.
24
O.S.No.3691/2016 & O.S.No.7939/2016
12. On appreciation of oral and documentary evidence and on hearing both sides, my findings on the above issues are as follows:
IN O.S. NO.3691/2016 Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3: In the Negative;
Issue No.4 In the Negative;
Issue No.5: In the Negative;
Issue No.6: In the Negative;
Addl.Issue No.1: In the Negative;
Addl.Issue No.2: In the Affirmative;
Addl.Issue No.3: In the Affirmative;
IN O.S. NO.7939/2016
Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3 : In the Negative;
Issue No.4 : In the Negative;
25
O.S.No.3691/2016 &
O.S.No.7939/2016
Issue No.7 in : As per final order
O.S.No.3691/16 for the following:
and Issue No.5
in O.S.No.7939/16
REASONS
13. ISSUE NO.1 :- Initially O.S. No.3691/2016 is
filed by the plaintiff against his father for the relief of permanent injunction restraining him from alienating suit schedule property and also from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property as consequent relief of injunction against eviction from the suit schedule property without observing due process of law.
14. During pendency of the suit, defendant died, plaintiff filed I.A. No.III under Order XXIII Rule 3 of C.P.C.
seeking permission to bring the daughter of the defendant on record on the contention that, right to suit survives against her. My learned predecessor in office vide order dated 03.07.2017 allowed the I.A.No.3 permitting the plaintiff to bring defendant No.1(a) on record.
26
O.S.No.3691/2016 & O.S.No.7939/2016
15. Further,the plaintiff has filed I.A.No.5 under Order VI Rule 17 of CPC r/w Section 151 of CPC which came to be rejected by this court vide order dated 02.02.2018 on the ground that if the plaintiff is permitted to implead new facts, not only the nature of the suit but also cause of action will be changed.
16. Being aggrieved by the said order, the plaintiff has preferred W.P.No.30837/2018 before the Hon'ble High Court of Karnataka. The said Writ Petition came to be allowed by the Hon'ble court vide Order dated 16.08.2023 directing this court to decide this suit on merits on or before March 2024 by allowing the application filed under Order VI Rule 17 of CPC., by seeking additional prayer to declare that execution and registration of the Gift deed dated 04.10.2016 in favour of the defendant No.1(a) by he defendant is null and void and not binding on the right 27 O.S.No.3691/2016 & O.S.No.7939/2016 of the plaintiff pertaining to the suit schedule property bequeathing in his favour under the Will dated 24.02.2005 by the mother of the plaintiff and consequent reliefs. Accordingly, the plaintiff caused amendment to the plaint. The defendant No.1 (a) filed additional written statement the basis of the pleadings, additional issues were framed on 13.10.2023.
17. The plaintiff has filed instant suit seeking permanent injunction against the defendant. Subsequently after the death of the father, sister of the plaintiff was brought on record as legal representative of the plaintiff and sought for additional relief to bequeath the gift deed executed by the original defendant in favour of her daughter i.e., defendant 1(a) as null and void and not binding on the rights of the plaintiff.
18. To substantiate his case, plaintiff placed his oral testimony reiterating the plaint averments and relied 28 O.S.No.3691/2016 & O.S.No.7939/2016 on Ex.P.1 - certified copy of the Will dated 24.02.2005 executed by plaintiff's mother to show that suit schedule property is bequeathed in his favour with life interest to the original defendant. Ex.P.2 is Death certificate of Smt. Lalitha Jayagopal issued by Chief Registrar of Birth and Death dated 03.11.2016 shows that the mother of plaintiff died on 14.09.2008. He placed reliance on Ex.P.3 - certified copy of Will dated 24.02.2005 executed by plaintiff's father to contend that in the said Will, father has expressed the intention of his mother to bequeath the suit property in his favour. Ex.P.4 is another Will dated 02.06.2012 executed by the plaintiff's father to show that original defendant has also bequeathed the schedule property in his favour. Ex.P.5 is encumbrance certificate for a period of 34 years from 01.04.1970 to 31.03.2004 which shows that mother of the plaintiff has purchased the schedule property from the original owner Pankajamma on 21.05.1981. Exs.P.6 and P.7 both dated 31.05.2016 are the original khata certificate and Khata extracts of the 29 O.S.No.3691/2016 & O.S.No.7939/2016 schedule property standing in the name of original defendant (father of the plaintiff). Ex.P.8 is death certificate of the father of the plaintiff. Ex.P.9 is the acknowledgment issued by the Thyagarajanagar police for the complaint filed by the plaintiff requesting to give protection to his father and to inform that he is fixing CCTV camera to the schedule property for the purpose of protection of his father. Ex.P.10 is acknowledgment dated 12.11.2016 issued by the Thyagarajanagara Police for another complaint filed by the plaintiff herein against his sister - defendant No.1(a). Ex.P.11 is the letter dated 16.05.2016 written by the plaintiff requesting Assistant Revenue Officer, BBMP to cancel the khata standing in the name of his father. Ex.P.12 is another letter addressed to the BBMP dated 15.11.2016 filing objections to transfer khata in favour of defendant No.1(a) in respect of schedule property. Ex.P.13 is the certified copy of the order sheet in O.S. No.3691/2016. Ex.P.14 is the complaint filed by defendant No.1(a) against plaintiff. Exs.P.15 to P.18 are 30 O.S.No.3691/2016 & O.S.No.7939/2016 the certified copies of the FIR, charge sheet, order sheet and judgment in C.C. No.17142/2019. These documents are produced to show that even though defendant No.1(a) has filed a complaint, but, in her evidence she has not supported the prosecution case and deposed contrary to the complaint lodged by her. Ex.P.19 is the certified copy of the Gift Deed dated 04.10.2016 executed by the original defendant. Ex.P.20 is the certified copy of sale deed dated 21.05.1981.
19. On the other hand, to substantiate her case, defendant No.1(a) placed her oral testimony reiterating the written statement averments and relied on Ex.D.1 - certified copy of Codicil dated 24.02.2005 executed by original defendant. Ex.D.2 - Will dated 11.02.2015 executed by original defendant. Ex.D.3 - Will dated 05.10.2016 executed by original defendant. Ex.D.4 - Khata Endorsement dated 16.11.2023 issued by Assistant Revenue Officer, (Basavanagudi) Sub-Division, BBMP in 31 O.S.No.3691/2016 & O.S.No.7939/2016 respect of schedule property. Ex.D.5 - Encumbrance Certificate issued for the period from 01.04.2015 to 13.11.2023 in respect of schedule property. Ex.D.6 - Tax paid receipt for the year 2023-24 in respect of schedule property. Ex.D.7 - Police complaint dated 13.05.2016 filed by the original defendant along with statement given before the police on 09.05.2016 and postal acknowledgment. Exs.D.8 to D.10 are the BBMP Trade licences for the year 2017-18 to 2019-20 to carry on canteen in the schedule property by the husband of the defendant No.1(a). Ex.D.11 is the certified copy of the judgment and decree in S.C. No.600/2018. Ex.D.12 is the certified copy of the plaint and joint memo in S.C. No.601/2018. Ex.D.13 is the certified copy of the judgment and decree in S.C. No.602/2018. Ex.D.14 is the original registered Will dated 05.10.2016 executed by original defendant.
20. The plaintiff traces his right, title and possession upon the suit schedule property under the Will 32 O.S.No.3691/2016 & O.S.No.7939/2016 executed by her mother on 24.02.2005 as per Ex.P.1. The defendant denied acquiring any right by the plaintiff under Ex.P.1 - Will. The parties have not disputed that the suit schedule property was self acquired property of mother of the plaintiff i.e., Smt. Lalitha Jayagopal. The katha of the said property was standing in her name till her death. It is also not in dispute that, Smt. Lalitha Jayagopal is no more and died on 14.09.2008. It is worth to note that the plaintiff is claiming absolute right over the suit property based on Ex.P.1 - Will by asserting that, her mother has bequeathed the suit schedule property absolutely in his favour by giving life interest in favour of his father Sri.Jayagopal (original defendant). Whereas, the original defendant pleads and asserts that, the schedule property is absolutely bequeathed in his favour by his wife with all rights to alienate and encumber or deal with the said property. Both parties have placed heavy reliance on the covenants of Ex.P.1 - Will to assert their respective rights upon the suit schedule property.
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O.S.No.3691/2016 & O.S.No.7939/2016
21. At this juncture, it is worth to note that none of the parties have challenged the Will before any forum. At the same time, Will has not been probated. In this backdrop, this court has been called upon to interpret to the covenants of the Will so as to gather the intention of the testatrix. If at all the plaintiff successfully establishes that the testatrix has bequeathed / intended to bequeath the suit property absolutely in his favour and only life interest was provided to the defendant only to enjoy the property during his life time, certainly he is entitled for the suit reliefs. Otherwise, the suit fails.
22. In this scenario, let us examine the evidence placed by both parties to prove their respective pleas. Since both parties are harping upon the Ex.P.1 Will, it is profitable to give a careful reading to the covenants of the said Will. Relevant paragraphs read thus:
"Unfortunately, my husband and myself have no compatibility and 34 O.S.No.3691/2016 & O.S.No.7939/2016 healthy relationship and not in cordial terms with my son and daughter-in-law. My son has been residing separately with his wife at Bangalore from the date of his marriage. He is not supporting me or my husband in any manner."
............
"My husband and myself have been residing in the said property from the last 20 years. Myself and my Husband are aged and my husband became weak in health due to the fact that he suffered from Hear Attack in the past. He is not able to work normally. Further, we are not getting any support either morally or financially from our on. I want to support my husband towards future living. Since my marriage, my husband has looked after me with lot of love and affection. He has been kind to me right from the time of my marriage. I am interested in the well being of my husband."35
O.S.No.3691/2016 & O.S.No.7939/2016 ..............
I hereby bequeath and device all my immovable and movables property described in the schedule whatsoever and wheresoever to my husband Sri. N.V. Jayagopal absolutely and appoint him as sole executor of my WILL and ESTAMENT with a right to sell, convey, alienate, transfer, encumber-mortgage, lease-out, receive rents, advances and pass receipts etc.,as an absolute owner. If in case, my husband predeceases me, the immovable schedule property is bequeathed to my son Sri.V.J.Narayan Kumar absolutely with a right to transfer, the khatha in his favour and pay revenue axes to the corporation, which is contingent on the demise of my husband. When my husband is alive, till then he will have no manner of right over the Schedule 'A' immovable property.
SCHEDULE"
Immovable Property Bequeathed to my son Sri.Narayan Kumar.V.J 36 O.S.No.3691/2016 & O.S.No.7939/2016 SCHEDULE 'A' Part and parcel of residential and non- Residential property bearing No.31/1, 10th Cross, 4th Main, 4th Block, Thyagarajanagar, Bangalore-560 028. consisting of Shops in the Ground Floor and Residential portions in the First and Second Floor, in all measuring East to West 17 feet and North to South 60 feet bounded on the:
EAST BY: Subramani's and Dhanapal's house WEST BY: 4th Main Road, NORTH BY: 10th Cross Road SOUTH BY: Dr.Guptha's Property"
23. The learned counsel for the plaintiff vehemently contend that the extracted last paragraph and schedule of the Will clearly provide that suit schedule immovable properly was bequeathed by the testatrix in favour of her son i.e., plaintiff. The rule of interpretation insist that the conclusive para of the Will has to be taken into 37 O.S.No.3691/2016 & O.S.No.7939/2016 consideration to gather the intention of the testatrix. In a Will, latter of the two inconsistent clauses will prevail over the former. To fortify this line of argument, the learned counsel invited the attention of the court to Section 88 of Indian Succession Act. The said provision reads thus:
"88. The last of two inconsistent clauses prevails.- Where two clauses of gifts in a Will are irreconcileable, so that they cannot possibly stand together, the last shall prevail."
Accordingly, the learned counsel would contend that the last paragraphs of the Ex.P.1 - Will prevails over, under which, the schedule property was absolutely bequeathed in favour of the plaintiff.
24. To fortify this line of argument, the learned counsel placed reliance on following decisions mentioned in the notes on final arguments:
1) Hammond vs. Treharne (1938(3) All ER
308) 38 O.S.No.3691/2016 & O.S.No.7939/2016
2) Kalvelikkal Ambunhi vs. H. Ganesh Bhandary (AIR 1995 SC 2491)
3) Rameshwar Baksh Singh vs. Balraj Kaur (1935)37 BOMLR 862 and would contend that when there is inconsistencies in the clauses of the Will, the last clause will prevail over the former ones. Further, the learned counsel also placed reliance on the following decisions:
1) Veerattalingam & Ors. vs. Ramesh & Ors.
(AIR 1990 SC 2201)
2) Ram Gopal vs. Nand Lal & Ors. (AIR 1951 SC 139)
3) Gambal Ammal vs. Raju Ayyar & Ors.
(AIR 1951 SC 103)
4) Raj Bajrang Bahadur Singh vs. Thakurain Bakhtraj Kuer (AIR 1953 SC 7)
5) Pearey Lal vs. Rameshwar Das (AIR 1963 SC 1703)
6) Ramchandra v. Hilda Brite (AIR 1964 SC 1323)
7) Navneet Lal v. Gokul (AIR 1976 SC 794)
8) Uma Devi Nambiar & Ors vs. T.C. Sidhan (Dead) (SC) Appeal (Civil) 9726 of 2003, 39 O.S.No.3691/2016 & O.S.No.7939/2016 Special Leave Petition (Civil) 9026 of 2002, Date of Judgment : 11/12/2003) and contend that the Hon'ble Courts have clearly laid down the principles to appreciate the intention of the testatrix and construction of the Will.
24(a) It is further argued that the assertive language used in the Will dated 24.02.2005 executed by Smt. Lalitha Jayagopal ought to be given due significance. At running page No.5 of the registered Will dated 24.02.2005 at para No.2, 3 and 5 and last paragraph of page No.6, it is written as under:
"....When my husband is alive, till then he will have no manner of right over the Schedule 'A' immovable property"
"My son V.J. Narayan Kumar will have a right to convey, transfer, alienate, draw a will, encumber and deal with tenants as an absolute owner as he likes and desire"40
O.S.No.3691/2016 & O.S.No.7939/2016 "My son shall repay the advance deposits received from the Tenants by me at the time of handing over the possession by the tenants. As an absolute owner he can lease out, enter into agreement, receive advance, rent and evict the tenants as landlord and also as an absolute owner. ......"
"......He has to forego the complete rights in the immovable property and he is entitled to get 50% and my daughter will entitled to get 50% in the schedule 'A' property along with the other bequeathed movable properties to her under this WILL."
Relying on the above extracted clauses of the Will, it is vehemently contended that the testatrix has intended to create life interest in her husband and the same can be evidenced by reading aforesaid extracted recitals. Wherein, she is specifically mentioned about staying in the schedule property for a period of more than 20 years and 41 O.S.No.3691/2016 & O.S.No.7939/2016 her husband suffering heart attack and being weak. The usage of words in the subsequent parts of the Will dated 24.02.2005 makes it abundantly clear that the intention of the testatrix was to create only the life interest in favour of the former defendant and not to convey the suit schedule property absolutely.
24(b) It is further line of arguments that, the intention of the parents most specifically the mother of the plaintiff is to bequeath the suit schedule property to the plaintiff absolutely, which is resonated in the Will of the father executed on very same day as per Ex.P.3. The learned counsel invited the attention of the court to the relevant recitals of Ex.P.3 - Will at page No.8 unnumbered para Nos.1 and 2, which is extracted hereunder:
"I declare that my son that he will be happy about the bequeathing of the valuable full property bearing No.31/1, 4th Main, 4th Block, Thyagarajanagar, Bangalore - 560 028 by my wife under 42 O.S.No.3691/2016 & O.S.No.7939/2016 her WILL without giving any share to my daughter. This is more benefited to you in terms of getting Rents and Free Residential Accommodation........."
"I direct my son Narayana Kumar V.J. to be happy about the bequeathing of my Wife's complete big property at No.31/1, 4th Main, 4th Block ...... I hope, you are more benefited in getting better accommodation for Residential purposes and also in terms of Rent under the WILL executed by your mother and to co-operate......"
Relying on the above extracts, it is further argued that original defendant (father of the plaintiff) being a practicing Advocate having exhaustive practice and great reputation, made it abundantly clear in his Will that suit schedule property is bequeathed in favour of plaintiff absolutely. However, the very same defendant subsequently changes his version and proceeded to deal with the suit schedule property as if testatrix intended to 43 O.S.No.3691/2016 & O.S.No.7939/2016 create absolute title over the suit schedule property, which is bad in law.
25. On the other hand, the learned counsel for the defendant No.1(a) argued that the parents of the plaintiff were dehearted by the conduct of the plaintiff after his marriage and more concerned with the well being and safety of each other in the absence of any of them. The recitals of Ex.P.1 - Will of mother and other Ex.P.3 - Will of the father executed on the same day resonates that they are not happy and compatible relationship with the son and daughter-in-law. Therefore, parents of the plaintiff were interested in the well being each other.
25(a) The learned counsel further argued that, in the Will executed by the mother of the plaintiff, it is clearly mentioned that the schedule property should go to her husband absolutely with all rights to sell, convey, alienate, transfer, encumber the property as absolute owner. The further clauses of the said Will only provides 44 O.S.No.3691/2016 & O.S.No.7939/2016 the scenario in the event the former defendant predeceased the testatrix. That clauses loses its importance as the testatrix died before original defendant. Immediately after death of testatrix, the first clause of the Will granting absolute rights to her husband (original defendant) in the schedule property to the exclusion of all other legal heirs, came into effect. The plaintiff with malafide intention and for unlawful gain placing reliance upon the subsequent clauses which state about the situation arises in case the defendant died before testatrix. Both Ex.P.1 - Will of the mother and Ex.P.3 - Will of the father executed together. No additional weightage could be attached to the recitals of Ex.P.3 relied by the plaintiff. Accordingly, it is argued that plaintiff has no manner of right upon the suit schedule property.
25(b) Learned counsel further argued that the plaintiff is not in possession of the suit schedule property at any point of time. The attention of the court is invited 45 O.S.No.3691/2016 & O.S.No.7939/2016 to the affidavit filed by the plaintiff in lieu of examination- in-chief and contend that his residential address is shown as No.F-21, Diamond District Apartment, Old Airport Road, Kodihalli, Bengaluru. Even though, he is residing in the said address, in the cause title of the plaint, suit schedule property is shown as residential address with an ulterior motive and for the purpose of this suit. Further, the address of the original defendant in O.S. No.369/2016 is shown as suit schedule property. Such being the case, he is not entitled under law to seek injunction against the person who is in lawful and actual possession of the suit schedule property as on the date of the suit. It is further line of arguments that in plaint of O.S. No.7939/2016, it is clearly stated that on 11.11.2016, police personnel forcibly took the plaintiff out of the suit schedule property. From this part of pleadings it could be gathered that as on the date of said suit, the plaintiff was not in possession of the suit schedule property. Accordingly, it is argued that plaintiff is not having title and possession upon the suit 46 O.S.No.3691/2016 & O.S.No.7939/2016 schedule property. Whereas, the documents placed by the defendant No.1(a) / defendant clearly establishes her lawful possession and enjoyment of the suit schedule property by transferring khata in her name and to obtain eviction order from the competent court of law against tenant in occupation of the said property which is very much evident from Ex.D.11 to D.13. The suits in the present form are not maintainable. The learned counsel for the defendant contend that both the cases deserves for dismissal.
26. In the backdrop of the rival submissions, this court has given anxious consideration to the oral and documentary evidence placed by both the parties. At the cost of repetition, there is no dispute regarding the relationship of the parties and that mother of the plaintiff was original owner of the suit schedule property. Both parties have also not disputed the fact that their mother died leaving behind Ex.P.1 - Will dated 24.02.2005. 47
O.S.No.3691/2016 & O.S.No.7939/2016 Plaintiff is claiming absolute right, title and interest upon the suit schedule property based on the recitals of the said will and also placing reliance on Section 88 of Indian Succession Act. Whereas, the defendant No.1(a) assert that the entire construction of the Will has to be appreciated to gather the intention of the testatrix in the light of the facts and circumstances.
27. In this scenario, a short question for consideration of this court is whether the suit property was absolutely bequeathed in favour of plaintiff with life interest to the original defendant (father of the plaintiff)? A cojoint reading of the above extracted recitals of Ex.P.1 - Will in the light of the subsequent registered Wills and Codicil executed by the original defendant, it is obvious that there was no cordial relationship between the plaintiff and his parents. Both mother and father of the plaintiff were very much concerned about the safety of one another, which prompted the mother of the plaintiff to execute 48 O.S.No.3691/2016 & O.S.No.7939/2016 Ex.P.1 - Will bequeathing the suit property in favour of her husband keeping concern of his safety and wellness during his last days. Similarly, on the same day, father of the plaintiff has executed Ex.P.3 - Will keeping in mind the safety of his wife i.e., mother of the plaintiff. In all these testamentary documents it is glaring fact that plaintiff and his wife were not looking after their parents.
28. To fortify this opinion, it is profitable to refer the relevant portion of evidence of PW.1, wherein he has unequivocally admitted that in all testimentary documents referred above, his parents have complained about his ill- treatment and indifferent attitude towards their wellness and safety. They have also concerned about the aspect that plaintiff might object their daughter to get her legitimate share. For better appreciation the relevant portion of evidence of PW.1 is culled out as under:
"".....ನಿಪಿ-1 ರಲ್ಲಿರುವ ಮರಣ ಶಾಸನದಲ್ಲಿ ನನ್ನ ತಾಯಿಯವರು ನನ್ನೊಂದಿಗೆ ಸೌಹಾರ್ದಯುತ ಸಂಬಂಧ ಹೊಂದಿರಲಿಲ್ಲ ಎಂದು ಬರೆದಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ. ನಿಪಿ-3 49 O.S.No.3691/2016 & O.S.No.7939/2016 ಮತ್ತು 4 ರಲ್ಲಿರುವ ಮರಣ ಶಾಸನಗಳಲ್ಲಿ ನನ್ನ ತಂದೆಯವರು ನನ್ನೊಂದಿಗೆ ಸೌಹಾರ್ದಯುತ ಸಂಬಂಧ ಹೊಂದಿರಲಿಲ್ಲ ಎಂದು ಬರೆದಿದ್ದಾರೆ ಎಂದರೆ ಸರಿಯಲ್ಲ....."
""..........ನಿಪಿ-3 ರಲ್ಲಿರುವ ಮರಣ ಶಾಸನದ ಪುಟ ಸಂಖ್ಯೆ 1 ರಲ್ಲಿ "Unfortunately, my wife and myself have no compatibility and healthy relationship and not in Cordial terms with my son and daughter-in-
law. My son has been residing separately with his wife at Bangalore from the date of his marriage. He is not supporting me or to my wife in any manner' ಎಂದು ಬರೆಯಲಾಗಿದೆ ಎಂದರೆ ಸಾಕ್ಷಿ ನಿಪಿ- 3- ರಲ್ಲಿ ನನ್ನ ತಂದೆ ಮೇಲ್ಕಂಡಂತೆ ಬರೆದಿದ್ದಾರೆಂದು ಒಪ್ಪುತ್ತಾರೆ.....'' ""........ನಿಪಿ-4 ರಲ್ಲಿರುವ ಮರಣ ಶಾಸನದ ಪುಟ ಸಂಖ್ಯೆ 2 ರಲ್ಲಿ "Unfortunately, my wife and myself have no compatibility and healthy relationship and not in Cordial terms with my son and daughter-in- law. They have not supporting me or to my wife in any manner whatsoever' ಎಂದು ಬರೆಯಲಾಗಿದೆ ಎಂದರೆ ಸಾಕ್ಷಿ ನಿಪಿ-4- ರಲ್ಲಿ ನನ್ನ ತಂದೆ ಮೇಲ್ಕಂಡಂತೆ ಬರೆದಿದ್ದಾರೆಂದು ಒಪ್ಪುತ್ತಾರೆ.....'' 50 O.S.No.3691/2016 & O.S.No.7939/2016 ""......ನಿಪಿ-1 ರಲ್ಲಿರುವ ಮರಣ ಶಾಸನದ 2 ನೇ ಪುಟದ 2 ನೇಯ ಕಂಡಿಕೆಯಲ್ಲಿ ನನ್ನ ತಾಯಿಯವರು, ಮಗನಿಂದ ಯಾವುದೇ ನೈತಿಕ ಅಥವಾ ಆರ್ಥಿಕ ಸಹಾಯ ದೊರಕುತ್ತಿಲ್ಲ ಎಂದು ಬರೆದಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ....."
"".....ನಿಪಿ-3 ಮತ್ತು 4 ರಲ್ಲಿರುವ ಮರಣ ಶಾಸನಗಳಲ್ಲಿ ನನ್ನ ತಂದೆಯವರು, ಮಗನಿಂದ ಯಾವುದೇ ನೈತಿಕ ಅಥವಾ ಆರ್ಥಿಕ ಸಹಾಯ ದೊರಕುತ್ತಿಲ್ಲ ಎಂದು ಬರೆದಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ...."
As rightly contended on behalf of the defendant No.1(a) / defendant, the parents of the plaintiff have stated in their respective Wills that plaintiff had no cordial relationship with them. They have not obtained any moral and financial assistance from their son. Plaintiff has admitted this aspect in his evidence.
29. Further more, there was complaint lodged by the original defendant against the plaintiff regarding the high handedness and forceful acts to pressurize him to part with the suit schedule property. Same recitals find place in Ex.D.5 - Codicil and Ex.D.2 - Will dated 51 O.S.No.3691/2016 & O.S.No.7939/2016 11.02.2015 and Ex.D.3/D14 - Will dated 05.10.2016. Viewing from any angle, this court could arrive at a definite conclusion that mother of the plaintiff is intended to give schedule property absolutely in favour of her husband. No doubt, there is further recitals stating that the rights of the plaintiff upon the said property. However, it is very much clear that the said situation of absolute bequeath in favour of plaintiff arises only in the event the original defendant pre-deceased testatrix died before original defendant. Admittedly, mother of the plaintiff i.e., testatrix of Ex.P.1 - Will died before the original defendant. Such being the case, it is undoubtedly clear that, the schedule property absolutely belongs to the original defendant with all rights to alienate, encumber and deal with the property as per his wish.
30. To fortify his opinion it is profitable to rely on the decisions referred by defendant No.1(a) as under: 52
O.S.No.3691/2016 & O.S.No.7939/2016 (1) In a decision reported in (1976)1 Supreme Court Cases 630 Naveen Lal Vs. Gokul and others it is held as under:
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.
(2) In construing the language of the will the court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense...... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document.
(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.53
O.S.No.3691/2016 & O.S.No.7939/2016 (4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by he testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of construction which does not create any such hiatus.
(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every 54 O.S.No.3691/2016 & O.S.No.7939/2016 testamentary intention contained in the will.
(2) In a decision reported in (2017)13 Supreme Court Cases 15 K.S. Palanisami (Dead) through Legal Representatives V. Hindu Community in General and Citizens of Gobichettipalayam and others it is held as under:
8. From the earlier decisions of this Court the following principles, inter alia, are well established:
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.
(2) In construing the language of the will the court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense...... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document.55
O.S.No.3691/2016 & O.S.No.7939/2016 (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by he testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of construction which does not create any such hiatus.
(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant 56 O.S.No.3691/2016 & O.S.No.7939/2016 provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will.
(3) In (2001)9 Supreme Court Cases 562 (Bramha Vart Sanatan Dharm Mahamandal Vs. Kanhaiya Lal Bagla and others) it is held as under:
"A. Will - Interpretation of - Considerations required in - Held, it is necessary to get at the intention of the testator by reading the will as a expression therein some effect rather than rendering any of the expressions inoperative - Further, the words occurring more than once in a will are to be presumed to be used always in the same sense unless contrary intention appears from the will - Also, the circumstances under which the testator makes his will such as the state of his property, family etc., should be considered while interpreting the will - Moreover authorities or precedents are of no 57 O.S.No.3691/2016 & O.S.No.7939/2016 help since each will has to be interpreted on its own terms and the setting in which the clauses occur - Deeds and Documents - Will
- Necessary considerations in interpreting the will."
"11. Further, in interpreting the wills, it is settled law to get at the intention of the testator by reading the will as a whole; if possible such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative is to be accepted. Another rule which may be useful in context of the will is that the words occurring more than once in a will are to be presumed to be used always in the same sense unless contrary intention appears from the will. The court may also consider the circumstances under which the testator makes his will such as the state of his property, or his family and the like."
31. The gist of the ratio laid down in all these decisions is that to gather the intention of the testatrix, the recitals of the Will have to be read as a whole in 58 O.S.No.3691/2016 & O.S.No.7939/2016 the light of the circumstances emerges from it. As stated earlier, in all the testament documents the parents have expressed unhappiness in respect of the conduct of the son in not providing moral and financial support and in some circumstances treating the father in inhuman manner by not providing food and water to pressurize him to part with the property. Such being the case, it is far from truth to believe that the testatrix has intended to bequeath the suit schedule property absolutely in favour of the plaintiff by giving only life interest to her loving husband. It is also to be noted that, father of the plaintiff has left behind high value fetching properties in Bengaluru.
32. No doubt, the learned counsel for plaintiff has mentioned the decisions in his notes for final arguments. But, the principles laid down in those decisions was taken into consideration by the Hon'ble 59 O.S.No.3691/2016 & O.S.No.7939/2016 Supreme Court of India in Navneet Lal @ Rangi's case and K.S. Palanisami's case referred supra and observed that the intention of testator (testatrix), therefore, Will have to be gathered from all the relevant and material contends in the entire Will made in the situation in which the testator was faced in the life in the back ground of his property, his inclinations, wishes, desires and attitudes as can be clearly and unambiguously found from the recitals of the instrument. Also, the circumstances under which the testator makes his Will such as the state of his property, family etc., should be considered while interpreting the Will. By applying the principles laid down by the Hon'ble Apex Court to the facts and circumstances of this case, it is abundantly clear that absolute ownership of the schedule property was bequeathed in favour of the husband of the testatrix. 60
O.S.No.3691/2016 & O.S.No.7939/2016 Therefore, the decisions relied by the plaintiff is of no avail to his case.
33. To sum up, from the careful consideration of the pleadings and evidence on record, this court arrive at an irresistable conclusion that the contention of the plaintiff that original defendant has got only life interest in the suit schedule property under the Ex.P.1
- Will is far from truth to believe. Whereas, the material documents clearly establish that, original defendant has got absolute right to deal with the said property after the death of testatrix. At this juncture, it is worth to note that, none of the parties have sought for the relief of declaration of their title flown from the said Will. However, when the plaintiff is sought the reliefs on the basis of the Will, it is incumbent upon this court to incidentally examine the Will to ascertain the rights of the respective parties. In that view of the 61 O.S.No.3691/2016 & O.S.No.7939/2016 matter and in the light of discussion made supra, this court opined that, plaintiff is not entitled for the restraint order against original defendant or defendant No.1(a) from alienating or creating third party right over the suit schedule property. Accordingly, Issue No.1 under consideration is answered in the Negative.
34. ISSUE NO.2 in O.S. NO.3691/2016: From the detailed discussion on the above Issue, it is obvious that the covenants of the Ex.P.1 - Will relied by the plaintiff does not confer any right, title or interest upon the suit schedule property in favour of plaintiff. Per contra, the documentary evidence placed by the defendant No.1(a) coupled with the oral testimony clearly shows that former defendant (father of the defendant) has acquired absolute right upon the suit property by virtue of Ex.P.1 - Will. In other words, the former defendant has got absolute right to deal 62 O.S.No.3691/2016 & O.S.No.7939/2016 with the schedule property in any manner including to execute Will or gift deed in favour of any persons much less defendant No.1(a). At no stretch of imagination, any documents executed by the former defendant in his own rights acquired under the Ex.P.1 - Will oppose any such right allegedly created in favour of plaintiff under the said Ex.P.1 - Will. More specifically, due to non-happening of contingency mentioned in Ex.P.1 - Will such as the death of the former defendant even before the death of testatrix, plaintiff will not acquire any right and interest upon the suit schedule property under the said Will. Therefore, he is not entitled to question any testamentary document or the gift deed executed by the former defendant in favour of defendant No.1(a). Hence, without discussing much, this court opined that plaintiff has not proved that he is entitled to get the relief of injunction restraining the 63 O.S.No.3691/2016 & O.S.No.7939/2016 defendant or anybody claiming on behalf of the defendant from Will being created by the former defendant opposed to the Will of the plaintiff's mother pertaining to the suit schedule property. Accordingly, this Issue No.2 under consideration is answered in the Negative.
35. ISSUE NO.4 in O.S. NO.3691/2016 AND ISSUE NO.1 in O.S. NO.7939/2016: Plaintiff pleads and asserts that he is in lawful possession and enjoyment of the suit schedule property as on the date of filing of both the suits. On the other hand, former defendant and defendant No.1(a) in O.S. No.3691/2016 and defendant in O.S. No.7939/2016 plead and assert that after marriage of the plaintiff against the wishes of the parents, he started residing separately along with his wife. He never taken care of his parents. The learned counsel for the defendant 64 O.S.No.3691/2016 & O.S.No.7939/2016 No.1(a) invited the attention of the court to the affidavit evidence placed by the plaintiff and contend that the residential address mentioned in the said affidavit reads as under:
No.F-21, Diamond District Apartment, Old Airport Road, Kodihalli, Bengaluru - 560 008.
This clearly shows that he has been residing in some other address and former defendant alone was staying in the suit schedule property till his death.
Thereafter, admittedly plaintiff stayed in the property for a period of 15 days to perform last rites of former defendant. Whereas, defendant No.1(a) / defendant came down from Haridwar to lookafter his father and after the death of father, she has taken the possession of the said portion of the property and also filed eviction suit against the tenants in that property, which is evident from the documents at Exs.D.11 to 65 O.S.No.3691/2016 & O.S.No.7939/2016 D.13. So also trade licence was obtained from BBMP to conduct canteen business in the suit schedule property which is also forthcoming from the documents at Exs.D.8 to D.10.
36. In this scenario, this court has given thoughtful consideration to the pleadings and evidence on record. As rightly contended that, the affidavit evidence of PW.2 shows that he was staying in separate residence along with his wife and children. The former defendant was alone staying in the suit property. It is forthcoming from the complaint dated 12.11.2016 annexed to Ex.P.10 that, plaintiff himself has stated in the said complaint that, after his mother's demise, his father (original defendant) was residing in the suit schedule property bearing No.31/1, Thyagarajanagar. It could be gathered from this statement that as on the date of the suit in O.S. 66 O.S.No.3691/2016 & O.S.No.7939/2016 No.3691/2016 the original defendant was residing in the suit schedule property. The plaintiff has sought the relief of permanent injunction against the former defendant who was admittedly staying in the said property. Whereas, the plaintiff was residing in some other address. Further more, Exs.P.6 and P.7 documents show that the original khata certificate and khata extract of the suit property stands in the name of the former defendant. This fact is admitted by the plaintiff in his evidence, which is extracted as under:
"2008 ರಲ್ಲಿ ನನ್ನ ತಾಯಿ ಕಾಲವಾದ ನಂತರ ನಿಪಿ-1- ಮರಣ ಶಾಸನ ಜಾರಿಗೆ ಬಂತು ಎಂದರೆ ಸರಿ. ಆ ಪ್ರಕಾರ ದಾವಾ ಅನುಸೂಚಿ ಸ್ವತ್ತಿನ ಖಾತೆ ನನ್ನ ತಂದೆಯ ಹೆಸರಿಗೆ ದಾಖಲಾಯಿತು ಎಂದರೆ ಸರಿ."
37. Subsequently, after demise of former defendant, khata of the schedule property has been transferred in the name of defendant No.1(a) on the basis of the gift deed. This aspect is not denied by the 67 O.S.No.3691/2016 & O.S.No.7939/2016 plaintiff. In fact, plaintiff has admitted that he has not repaid advance amount to the tenants. For better appreciation the relevant portion of evidence of PW.1 is culled out as under:
""ಈಗ ಅಂಗಡಿ ಮಳಿಗೆಗಳಲ್ಲಿ ಯಾರು ಬಾಡಿಗೆಗೆ ಇದ್ದಾರೆ ಎಂದರೆ ಗೊತ್ತಿಲ್ಲ. ಯಾವುದೇ ಬಾಡಿಗೆದಾರರಿಗೆ ಮುಂಗಡ ಹಣ ವಾಪಾಸ್ಸು ಕೊಟ್ಟಿಲ್ಲ ಎಂದರೆ ನಾನು ಹಿಂತಿರುಗಿಸುವ ಅವಶ್ಯಕತೆ ಇಲ್ಲ. ನನ್ನ ತಂಗಿ ಎಲ್ಲಾ ಬಾಡಿಗೆದಾರರು ಪಾವತಿಸಿದ್ದ ಮುಂಗಡ ಹಣವನ್ನು ಹಿಂತಿರುಗಿಸಿ ಅಂಗಡಿ ಮಳಿಗೆಗಳನ್ನು ದಾವೆ ದಾಖಲಿಸುವ ಮೂಲಕ ಖುಲ್ಲಾ ಮಾಡಿಸಿದ್ದಾರೆ ಎಂದರೆ ಗೊತ್ತಿಲ್ಲ."
38. At this juncture, it is worth to note that, the recitals of Ex.P.1 reads thus:
"My son shall repay the advance deposits received from the Tenants by me at the time of handing over the possession by the tenants. As an absolute owner he can lease out, enter into agreement, receive advance, rent and evict the tenants as a landlord and also as an absolute owner."68
O.S.No.3691/2016 & O.S.No.7939/2016 If at all plaintiff acquired absolute rights in the suit property under the Will as contended, there could have no hindrance for him to comply the above covenants of Will. Non-performance of the same leads to draw adverse inference.
39. No doubt, the learned counsel for the plaintiff would submit that though former defendant was staying in the suit schedule property after demise of his mother, the plaintiff is in deemed possession of the schedule property by virtue of the right acquired under Ex.P.1 - Will of his mother. It is difficult to accept this line of argument. This court already opined that Ex.P.1 - Will does not convey any manner of right, title and interest upon the plaintiff pertaining to the suit schedule property. Therefore, the question of deemed possession of the plaintiff does not arise. 69
O.S.No.3691/2016 & O.S.No.7939/2016
40. That apart, in the plaint in O.S. No.7939/2016, plaintiff has clearly pleaded that the cause of action for the said suit arose when the defendant has evicted him with the help of the police personnel. This fact further fortifies the contention of the defendant that the plaintiff was/is not in possession of the suit schedule property. Viewing from any angle, there is absolutely nothing on record to believe that plaintiff has been in continuous possession and enjoyment of the suit schedule property. Hence, Issue No.4 in O.S. No.3691/2016 and Issue No.1 in O.S. No.7939/2016 under consideration are answered in the Negative.
41. ISSUE NO.2 in O.S. NO.7939/2016: The plaintiff has pleaded and asserted that he has been in possession and enjoyment of the suit schedule property having acquired right upon the said property 70 O.S.No.3691/2016 & O.S.No.7939/2016 under Ex.P.1 - Will executed by his mother bequeathing the said property absolutely in his favour. It is the further case of the plaintiff that under the said Will, father of the parties has got only life interest in the suit schedule property. Whereas, defendant asserted that her mother has bequeathed the suit schedule property absolutely in favour of their father with right to alienate the said property. Both parties have let in evidence. On due consideration of the materials on record, this court opined that defendant has proved the absolute right acquired by her father under Ex.P.1 - Will. The learned counsel has invited the attention of the court to the recitals at Ex.P.1, wherein it is clearly mentioned that the testatrix is bequeathing the suit schedule property along with other properties to her husband Sri N.V. Jayagopala absolutely and appoint him as sole executor of her will 71 O.S.No.3691/2016 & O.S.No.7939/2016 and estament with right to sell, convey, alienation, transfer, encumber, mortgage, lease out, receive rents, advance and pass receipts etc., as absolutely and contend that accordingly the father of the defendant was well within power to execute the gift deed in her favour. By virtue of the gift deed, she became absolute owner of the suit schedule property. The absolute ownership includes all rights attached to the property including right of alienation. However, the defendant has clearly pleaded that she has no intention to alienate the schedule property. Nevertheless, right of ownership includes all other rights. The plaintiff having no manner of right upon the suit schedule property is not entitled to restrain the defendant who acquired valid right, title and possession upon the suit schedule property under the registered gift deed dated 04.10.2016 executed by the father in her favour. 72
O.S.No.3691/2016 & O.S.No.7939/2016 Therefore, the question of defeating the rights of the plaintiff who is having no manner of right in the suit schedule property does not arise. Hence, this court opined that the plaintiff has not proved that, the defendant is illegally trying to alienate the suit schedule property to the third person. Accordingly, this Issue No.2 in O.S. No.7939/2016 is answered in the Negative.
42. ISSUES NO.3 AND 5 in O.S. NO.3691/2016 AND ISSUE NO.3 in O.S. NO.7939/2016: Since these Issues are interconnected, I have taken up them together for common discussion to avoid repetition of facts and evidence.
Plaintiff pleads and asserts his lawful title and possession upon the suit schedule property and accordingly sought for relief of permanent injunction restraining the defendant for any person claiming on 73 O.S.No.3691/2016 & O.S.No.7939/2016 behalf of defendant in both the suits from interfering with peaceful possession and enjoyment of the plaintiff. Per contra, defendants in both the suits claim that former defendant in O.S. No.3691/2016 acquired absolute right upon the suit schedule property after demise of mother of the plaintiff. The said defendant has got unblemished right to alienate the suit schedule property as per his wish. Accordingly, he has executed gift deed in favour of defendant No.1(a) out of love and affection. It is further contended that after the death of plaintiff's mother, khata of the plaint schedule property transferred in the name of original defendant. Thereafter, by virtue of gift deed, the khata has been transferred in the name of defendant No.1(a) and accordingly she has initiated eviction proceedings in S.C. No.602/2018 against the tenants and also 74 O.S.No.3691/2016 & O.S.No.7939/2016 obtained trade license to run canteen in the suit schedule property. Accordingly, the gift deed is acted upon and defendant No.1(a) has been in peaceful possession and enjoyment of the suit schedule property.
43. From the evidence on record, it is obvious that admittedly after the demise of plaintiff's mother, khata of the schedule property was transferred in the name of former defendant. He has executed gift deed in favour of defendant No.1(a). On the strength of the said document defendant No.1(a) transferred khata and also filed ejectment suit against the tenants which is very much clear from the documents on record. It is also ordered in the judgment in S.C. No.600/2018 that the defendant No.1(a) is entitled for the arrears of rent of the schedule property. It appears that plaintiff has neither impleaded himself in that suit nor questioned 75 O.S.No.3691/2016 & O.S.No.7939/2016 the locus standi of defendant No.1(a) to file said suit. It appears that said judgment has attained finality. Accordingly, the plaintiff has allowed the defendant No.1(a) to exercise her rights acquired under the gift deed. Thus, it could be gathered that plaintiff has admitted her ownership upon the suit schedule property. For better appreciation relevant portion of evidence of plaintiff is culled out as under:
""ನನ್ನ ತಂದೆ ಸಲ್ಲಿಸಿರುವ ಲಿಖಿತ ಹೇಳಿಕೆಯ ಪ್ರಕಾರ ಸಹ ನಾನು ದಾವಾ ಅನುಸೂಚಿ ಸ್ವತ್ತಿನ ಸುಬರ್ದನಲ್ಲಿರಲಿಲ್ಲ ಎಂದರೆ ಸರಿ.'' ""ನನ್ನ ತಂದೆ-ತಾಯಿಯವರ ಜೀವಿತಾವಧಿಯಲ್ಲಿ ಅವರ ವೈದ್ಯಕೀಯ, ಆಸ್ಪತ್ರೆಯ ಮತ್ತು ಇತರೆ ವೆಚ್ಚಗಳನ್ನು ನಾನು ನೋಡಿಕೊಂಡಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನನ್ನ ತಂದೆ-ತಾಯಿಯವರ ಕೊನೆಗಾಲದಲ್ಲಿ ಅನಾರೋಗ್ಯ ಪೀಡಿತರಾಗಿದ್ದಾಗ ನನ್ನ ತಂಗಿ ಹರಿದ್ವಾರದಲ್ಲಿ ವಾಸವಾಗಿದ್ದರೂ ಸಹ ಆಕೆಯೇ ಬಂದು ಅವರನ್ನು ನೋಡಿಕೊಳ್ಳುತ್ತಿದ್ದರು ಎಂದರೆ ಸರಿಯಲ್ಲ. ನನ್ನ ತಂದೆಯವರೇ ದಾವಾ ಅನುಸೂಚಿ ಸ್ವತ್ತಿನ ಸಂಪೂರ್ಣ ಮಾಲೀಕರಾಗಿದ್ದ ಕಾರಣ ಸದರಿ ಸ್ವತ್ತನ್ನು ಪ್ರತಿವಾದಿ ನಂ.1(ಎ) ರವರಿಗೆ ನಿಪಿ-19 ರಂತೆ ದಾನಪತ್ರ ಬರೆದುಕೊಟ್ಟು ಸ್ವತ್ತನ್ನು ಆಕೆಯ ಸುಬರ್ದಿಗೆ ಕೊಟ್ಟಿದ್ದಾರೆ 76 O.S.No.3691/2016 & O.S.No.7939/2016 ಎಂದರೆ ಸರಿಯಲ್ಲ. ದಾನಪತ್ರ ಬರೆದುಕೊಟ್ಟ ನಂತರ ನನ್ನ ತಂಗಿ ದಾವಾಸ್ವತ್ತಿನ ಖಾತೆ ಮಾಡಿಸಿಕೊಂಡಿರುತ್ತಾರೆ ಎಂದರೆ ಮಾಡಿಸಿಕೊಂಡಿರಬಹುದು. ದಾನಪತ್ರ ಬರೆದುಕೊಟ್ಟ ನಂತರ ನನ್ನ ತಂಗಿ ದಾವಾಸ್ವತ್ತಿನ ಸ್ವಾಧೀನದಲ್ಲಿದ್ದಾರೆ ಎಂದರೆ ಗೊತ್ತಿಲ್ಲ.'' Plaintiff has not even denied the suggestion of defendant's possession upon the suit property. If at all he is in possession of the suit property, certainly he could have denied the above suggestion and assert his possession. This aspect further throws shadow on his claim.
44. From the discussion made supra it is clear that plaintiff has not proved his possession upon the suit schedule property as on the date of the suit and subsequent dates. Whereas, defendant has proved that she is in possession. Thus, when the plaintiff is not in possession of the property the question of restraining the defendant No.1(a) / defendant from causing 77 O.S.No.3691/2016 & O.S.No.7939/2016 interference does not arise. So also, question of restraining the defendant No.1(a) from evicting the plaintiff from the suit schedule property without observing due process of law, does not arise at all. Hence, these Issues No.3 and 5 in O.S. No.3691/2016 and Issue No.3 in O.S. No.7939/2016 under consideration are answered in the Negative.
45. ADDITIONAL ISSUE NO.1 in O.S. NO.3691/2016:The plaintiff is tracing his title upon the suit schedule property. Under the Ex.P.1 - Will and disputed the registered Gift deed dated 04.10.2016 executed by the former defendant in favour of defendant No.1(a). It is plaintiff's specific case that, former defendant has acquired only life interest in the suit property under Ex.P.1 - Will executed by the mother of the plaintiff. Such being the case, he has not entitled under the law to alienate the property in 78 O.S.No.3691/2016 & O.S.No.7939/2016 any manner in favour of any of the properties including the gift deed dated 10.04.2016 in favour of defendant No.1(a). The defendant has opposed this claim of the plaintiff.
46. As discussed in the foregoing issues, plaintiff's title right, and interest upon the suit property allegedly flown from Ex.P.1 - Will has not proved by preponderance and probabilities. So also, the contention of the plaintiff that the former defendant has acquired only life interest in the suit property is also not acceptable for the reasons discussed supra. Such being the case, plaintiff is not entitled under law to question the gift deed executed by the former defendant in favour of his daughter defendant No.1(a) out of love and affection. The covenants / recitals of Ex.P.1 - Will of the mother of the plaintiff does not come in the way of the former 79 O.S.No.3691/2016 & O.S.No.7939/2016 defendant to execute the gift deed. Moreover, plaintiff has not questioned the change of khata done by the defendant No.1(a) on the basis of the said gift deed, which is very much obvious from the evidence of PW.1. Further more, he has not questioned the title of the defendant No.1(a) acquired under the said gift deed in the ejectment suit in S.C. No.601/2018. Therefore, the contention of the defendant No.1(a) that the suit schedule property was absolutely bequeathed in favour of defendant under Ex.P.1 - Wll by Smt. Lalitha Jayagopala and the former defendant was well within his power to execute registered gift deed in her favour inspires the confidence of this court. It is worth to note that plaintiff himself has produced Exs.P.3 and P.4 to show that former defendant has bequeathed the suit schedule property in his favour. It could be gathered from the said documents that even according to the 80 O.S.No.3691/2016 & O.S.No.7939/2016 plaintiff, former defendant has acquired absolute right upon the suit property under Ex.P.1 will, so as to bequeath the same in favour of plaintiff under Ex.P.4 will. If at all former defendant had only life interest in the property, then the question of bequeathing the said property to the plaintiff would not have arisen. Such being the case, this court find substance in the contention of the defendant No.1(a) that the contention of the plaintiff that former defendant has right to bequeath the suit property under Ex.P.4 - will, said right it can also be extended to execute the registered gift deed in favour of defendant No.1(a). Viewing from any angle, this court is of the opinion that the plaintiff has not proved that the former defendant has no right to execute gift deed dated 04.10.2016 in favour of defendant No.1(a). Hence, question of declaring said registered gift deed as null and void does not arise. 81
O.S.No.3691/2016 & O.S.No.7939/2016 Accordingly, this Addl. Issue No.1 in O.S. No.3691/2016 is answered in the negative.
47. ADDITIONAL ISSUE NO.2 in O.S. NO.3691/2016: It is the definite contention of the defendant No.1(a) / defendant that plaintiff is not in possession and enjoyment of the suit schedule property. Such being the case, he has to pay court fee on the market value of the property to make any claim on the suit schedule property. Moreover, the plaintiff has sought for the relief that gift deed is not binding on him. The court fee paid on the said relief is insufficient. The plaintiff has opposed this contention of the defendant.
48. It is pertinent to note that plaintiff has valued the additional relief of declaration to declare that the gift deed is null and void and not binding on 82 O.S.No.3691/2016 & O.S.No.7939/2016 him under Section 24(d) of Karnataka Court Fee and Suits Value Act, most specifically he has valued the prayer No.1(a), 1(ab), 1(ac), 1(ad) and 1(ae) under Section 24(d) of Karnataka Court Fee and Suits Value Act Act and paid court fee of Rs.125/-. He has also valued the original plaint under Section 26(c) of Karnataka Court Fee and Suits Valuation Act, for the relief of permanent injunctions and paid the court fee of Rs.50/-.
49. No doubt, the learned counsel for the defendant would contend that the plaintiff has to value the suit on the market value of the subject matter and ought to have paid the court fee. This contention is not acceptable, because no consideration is passed under the registered gift deed dated 04.10.2016. It is settled point of law that consideration amount passed under the deed has to be taken into consideration for the 83 O.S.No.3691/2016 & O.S.No.7939/2016 purpose of computation of court fee. Since no consideration amount is passed under the gift deed, Section 38 of Karnataka Court Fee and Suits Valution Act Act has no application and the suit has to be valued suit for the relief of declaration has to be valued under Section 24(d) of Karnataka Court Fee and Suits Valuation Act.
50. In support of this opinion, reliance can be placed on the decision of the Hon'ble High Court of Karnataka reported in LAWS (KAR) 2018 530 ; Venkatesh S Vs. State of Karnataka, Principal Secretary wherein the Hon'ble Court pleased to held that:
"It is settled position of law that where a person who is not a party to the instrument seeks for a declaratory relief to the effect that the said instrument is not binding on the plaintiff, the valuation under Section 84 O.S.No.3691/2016 & O.S.No.7939/2016 24(d) of the Act can be resorted to........."
In a decision reported in W.P. NO.361/2013 (Sri Jaware Gowda and another Vs. Sri Basavaraju N.J. and others) wherein the Hon'ble Court pleased to held that:
"As set out above, though the suit is styled as a 'declaration', Section 24(a) and (b) of the Act is not attracted. In substance, the relief sought being cancellation, it is Section 38 which is attracted but since no value is mentioned in the instrument, it cannot be valued under Section 38 of the Act. Therefore, Section 24(d) of the Act is attracted. Therefore, the plaintiff in the absence of the value of the subject matter being mentioned in the instrument and as the case does not fall under Section 24(a) and (d), they have no obligation to value the suit on the basis of the market value. The plaintiffs have rightly valued the suit under Section 24(d) of the Act and have given their valuation as rupees one thousand. In the facts and circumstances of this case, the said valuation cannot be found fault with."85
O.S.No.3691/2016 & O.S.No.7939/2016 On the application of the ratio laid down in the referred decisions to the facts and circumstances of this case, it is obvious that plaintiff has properly valued the suit and paid sufficient court fee. Accordingly, this Issue No.2 in O.S. No.3691/2016 is answered in the Affirmative.
51. ADDITIONAL ISSUE NO.3 IN O.S. NO.3691/2016 AND ISSUE NO.4 IN O.S. NO.7949/2016: Since both these Issues are interconnected, I have taken up them together for common discussion to avoid repetition of facts and evidence.
It is the specific contention of the defendant No.1(a) / defendant in the suits that, the plaintiff was never in possession of the suit schedule property. 86
O.S.No.3691/2016 & O.S.No.7939/2016 The allegations of his forcible dispossession after the death of the father is specifically denied. It is apparent that the plaintiff is not in possession of the suit schedule property and as such suit for bare injunction is not maintainable. It is further contended that plaintiff has neither filed suit for declaration of his title derived under Ex.P.1 - Will nor filed suit for cancellation of the gift deed. It is settled point of law that when the plaintiff is not in possession of the property and there is cloud on his title upon the said property, suit for bear injunction is not maintainable.
52. To fortify this line of argument, learned counsel for the defendant relied on the decision of the Hon'ble Supreme Court in (2008)4 SCC 594 (Ananthula Sudhkar v. P. Buchi Reddy it is held that:
87
O.S.No.3691/2016 & O.S.No.7939/2016 "21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession,with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference has to be established on the basis of the title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.88
O.S.No.3691/2016 & O.S.No.7939/2016
(c) But a finding on title cannot be recorded in a suit for injunction. Unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit or mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and 89 O.S.No.3691/2016 & O.S.No.7939/2016 possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
...........
.............
"13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."90
O.S.No.3691/2016 & O.S.No.7939/2016 In view of the law laid down in the above decisions these suits for injunction simplicitor are not maintainable.
53. Admittedly, the defendant has disputed the title of the plaintiff pertaining to the suit schedule property. As discussed earlier, plaintiff's possession upon the suit schedule property is not established. As rightly contended, under the facts and circumstances, suit for injunction simpliciter is not maintainable. The line of arguments that in order to avoid the court fee plaintiff has cleverly drafted plaint by seeking the relief of declaration that the gift deed is null and void and not binding on him, instead of seeking cancellation of the gift deed, cannot be brushed aside. Nevertheless, when there is cloud on the title of the plaintiff pertaining to the suit schedule property, and his possession upon the suit property is 91 O.S.No.3691/2016 & O.S.No.7939/2016 admittedly not established, suit for injunction without seeking possession or declaration of title is not maintainable. Hence, without discussing much this court has no hesitation to hold this Additional Issue No.3 in O.S. No.3691/2016 is in the affirmative and Issue No.4 in O.S. No.7949/2016 is in the Negative.
54. ISSUE NO.6 IN O.S. NO.3691/2016:
Initially, plaintiff has filed filed this suit against his father/ former defendant for the relief of permanent injunction against alienation and interference. Subsequent to the death of father, he has brought his sister on record as legal representative of the defendant and sought additional relief of declaration to declare that registered Gift deed executed by the former defendant in favour of the defendant No.1(a) is null and void and not binding on him. Former defendant and defendant No.1(a) opposed 92 O.S.No.3691/2016 & O.S.No.7939/2016 the claim of the plaintiff. Both parties have let in evidence. After due consideration of the pleadings, evidence, both oral and documentary and for the reasons discussed in detail on the foregoing Issues, this court arrived at an irresistable conclusion that, the plaintiff has not proved his possession of the suit schedule property as on the date of the suit and subsequent dates. So also, no material is placed to substantiate the claim of the plaintiff that he acquired absolute ownership rights upon the suit schedule property under the Ex.P.1 - Will. On the other hand, it is evident from the documents on record that Smt. Lalitha Jayagopal has bequeathed the suit schedule property along with other properties absolutely in favour of Sri. Jayagopal / former defendant with all rights to deal with the property as absolute owner.
On the basis of the said right, he has executed 93 O.S.No.3691/2016 & O.S.No.7939/2016 registered Gift Deed dated 0410.2016 in favour of defendant No.1(a) out of love and affection. Plaintiff has not established his right to question said registered gift deed dated 04.10.2016. Therefore, this court opined that plaintiff is not entitled for the relief of declaration and permanent injunction as sought for in the plaint. Accordingly, this Issue No.6 is answered in the Negative.
55. ISSUE NO.7 in O.S. NO.3691/2016 AND ISSUE NO.5 in O.S. NO.7939/2016:- For the reasons stated and discussed in detail in the foregoing Issues, this court arrived at a considered opinion that the plaintiff in both the cases has not proved his possession of the suit schedule property. At the same time, he has also not established acquisition of absolute right upon the suit schedule property under Ex.P.1 - Will. Therefore, he is not entitled for the relief of declaration and permanent injunctions. Before parting, it is worth to note 94 O.S.No.3691/2016 & O.S.No.7939/2016 that suit O.S. No.3691/2016 is filed on 18.05.2016. In spite of pendency of the said suit, other suit in O.S. No.7939/2016 is filed in respect of same property for the relief of injunction on 18.11.2016. This conduct of the plaintiff in filing one after other suit during the pendency of the former suit for the same relief in respect of the same property is nothing short of abuse of the process of law and attracts penal cost. Hving regard to the relationship of the parties in O.S. No.3691/2016, it is proper to direct them to bear their respective costs. With these observations, it is held that both suits are liable to be dismissed. Accordingly, this court proceed to pass the following:
ORDER Suit in O.S. No.3691/2016 is dismissed.
Suit in O.S.No.7939/2016 is dismissed with costs of Rs.10,000/-.
Parties in O.S. No.3691/2016 shall bear their respective costs.95
O.S.No.3691/2016 & O.S.No.7939/2016 Original judgment shall be kept in O.S. No.3691/2016 and copy of the same shall be kept in O.S. No.7939/2016.
Draw decree accordingly.
(Dictated to the Stenographer Grade-I, transcribed, computerized by her, corrected and then pronounced by me in open court on this the 1st day of April, 2024).
(KALPANA M.S.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.
SCHEDULE All that piece and parcel of the property bearing No.31/1, 4th Main, 4th Block, Thyagaraja Nagar, Bengaluru consisting of shops in the ground floor and residential premises in the First Floor and a building in the second floor along with all appurtenants and fixtures attached thereto. Bounded on the;
East by : Private property;
West by : Road;
North by : Private property;
South by : Road.
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O.S.No.3691/2016 &
O.S.No.7939/2016
ANNEXURE
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 V.J. Narayana Kumar WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1 Smt. V.J. Bobby Gayathri DOCUMENTS MARKED FOR THE PLAINTIFF:
Ex.P.1 Certified copy of Will dated 24-02-2005 executed by plaintiff's mother.
Ex.P.2 Original death certificate of Plaintiff's mother.
Ex.P.3 Certified copy of Will dated 24-02-2005 executed by plaintiff's father.
Ex.P.4 Certified copy of Will dated 02-06-2012 executed by plaintiff's father.
Ex.P.5 Certified copy of encumbrance certificate standing in the name of plaintiff mother.
Ex.P.6 Original Khata Certificate.
Ex.P.7 Original Khata Extract.
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O.S.No.3691/2016 &
O.S.No.7939/2016
Ex.P.8 Original death certificate of Plaintiff
father/defendant.
Ex.P.9 Original acknowledgment dated 09-05-
2016 issued by Thyagaraj Nagar Police and copy of the police complaint.
Ex.P.10 Original acknowledgment dated 12.11.2016 and copy of police complaint.
Ex.P.11 Letter dated 16-05-2016 submitted by the plaintiff addressed to Assistant Revenue Officer for cancellation of Khata. Ex.P.12 Letter dated 15-11-2016 submitted by the plaintiff addressed to Assistant Revenue Officer for transfer of Katha. Ex.P.13 Certified copy of order sheet in O.S.No.3691/2016.
Ex.P.14 Certified copy of the complaint dated 13.11.2016.
Ex.P.15 Certified copy of FIR in crime No.134/2016.
Ex.P.16 Certified copy of charge sheet in
C.C.No.17142/2019 and annexed
documents.
Ex.P.17 Certified copy of order sheet in
C.C.No.17142/2019.
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O.S.No.3691/2016 &
O.S.No.7939/2016
Ex.P.18 Certified copy of judgment dated
19.04.2023 in C.C.No.17142/2019.
Ex.P.19 Certified copy of the Gift deed dated 04.10.2016.
Ex.P.20 Certified copy of the Sale deed dated 21.05.1981.
Ex.P.20(a) Typed copy of Ex.P.6 Sale deed dated 21.05.1981.
DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D.1 Certified of copy of Codicil dated
22.10.2008.
Ex.D.2 Certified of copy of Will dated 11.02.2015 executed by the deceased Defendant ( Late N.V. Jayagopal).
Ex.D.3 Certified of copy of registered Will dated 05.10.2016 executed by the deceased defendant (Late N.V. Jayagopal).
Ex.D.4 Khata endorsement dated 16.11.2023 issued by the BBMP in respect of the suit schedule property.
Ex.D.5 Digitally certified copy of the 99 O.S.No.3691/2016 & O.S.No.7939/2016 Encumbrance certificate of the suit schedule property from 01.04.2015 to 13.11.2023.
Ex.D.6 Computer generated property Tax paid receipt of the suit schedule property for the year 2023-24.
Ex.D.7 Police complaint dated 13.05.2016 filed by the defendant (N.V. Jayagopal) along with statement given before the police on 09.05.2016 and postal acknowledgment. Ex.D.8 BBMP Trade License for the year 2017-18 to carry on canteen in the suit schedule property by the husband of the defendant No.1(a) i.e. Sri. Sujaya Babu.
Ex.D.9 BBMP Trade License for the year 2018-19 to carry on canteen in the suit schedule property by the husband of the defendant No.1(a) i.e. Sri. Sujaya Babu.
Ex.D.10 BBMP Trade License for the year 2019-20 to carry on canteen in the suit schedule property by the husband of the defendant No.1(a) i.e. Sri. Sujaya Babu.
Ex.D.11 Certified copy of the judgment and decree passed in S.C.No.600/2018.
Ex.D.12 Certified copy of the plaint and joint memo in S.C.No.601/2018.
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O.S.No.3691/2016 & O.S.No.7939/2016 Ex.D.13 Certified copy of the judgment and decree passed in S.C.No.602/2018.
Ex.D.14 Original registered Will dated 05.10.2016 executed by the deceased defendant (Late N.V. Jayagopal).
(KALPANA M.S.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.
101 O.S.No.3691/2016 & O.S.No.7939/2016 Judgment pronounced in open court, vide separate Judgment by passing the following:
ORDER Suit in O.S.No.3691/2016 is dismissed.
Suit in O.S.No.7939/2016 is dismissed with costs of Rs.10,000/-.
Parties in O.S.No.3691/2016 shall bear their respective costs.
Draw decree accordingly.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.