Bangalore District Court
Sri. V. R.Subramanyam vs Smt. Parvathi Ranganathan on 16 September, 2022
1 O.S.4335/2004
KABC010140852004
IN THE COURT OF I ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU (CCH.No.2)
Present: - SRI.SREENIVASA, B.A., LL.B.
I Addl. City Civil & Session Judge,
Bengaluru.
Dated this the 16 th day of September 2022
O.S.No.4335 / 2004
Plaintiff: Sri. V. R.Subramanyam,
Aged about 49 years,
S/o. Late Sri. S. Ranganathan,
No.176/4, 3rd Main, Bhuvaneshwari
Nagar, Bengaluru-560 093.
(By Dr.P.Ravishankar, Adv.)
- VS -
Defendants: 1. Smt. Parvathi Ranganathan,
W/o. Late Sri.S.Ranganathan.
Since dead by her LRs.
2. Sri. V.R.Sreenivasan,
Aged about 54 years,
S/o. Late Sri.S.Ranganathan,
518, 3rd Cross, 11th Main, HAL 2nd Stage,
Indiranagar, Bengaluru-560 038.
3. Smt. Sharada Ramachandran,
Aged 52 years,
W/o. Late Sri. Ramachandran,
2 O.S.4335/2004
1822, 2nd Main, HAL 3rd Stage,
New Thippasandra, Bengaluru-75.
4. Smt.Thangammal,
Aged 48 years,
No.16, Anugraha, Teachers Colony,
Kamalanagar, Bengaluru-560 075.
5. Smt.Vijayalakshmi,
Aged about 46 years,
W/o. N.Raman,
No.209, 2nd Floor, Ramya Regency,
Jeevanbhimanagar, Bengaluru-560 075.
6. Sri. S.Karthik,
Aged about 20 years,
S/o. V.R.Sreenivasan,
518, 3rd Cross, 11th Main, HAL 2nd Stage,
Indiranagar, Bengaluru-560 038.
(By Sri.T.Rajaram, Adv.)
Date of Institution of the suit 23.06.2004.
Nature of the Suit (suit for pronote, Partition suit.
Suit for declaration & possession,
Suit for injunction, etc.):
Date of the commencement of 22.11.2008.
recording of the Evidence:
Date on which the Judgment was 16.09.2022.
pronounced:
Year/s Month/s Day/s
Total duration:
18 02 23
(SREENIVASA)
I Addl. City Civil & Sessions Judge,
Bengaluru.
3 O.S.4335/2004
JUDGMENT
This suit is filed by the plaintiff against the defendants for a judgment and decree of partition in respect of the suit schedule properties by metes and bounds declaring his 1/6th share; or in the alternative direct the defendants to pay the market value of the 1/6th share of the suit schedule property in his favour; or in the alternative sell the suit schedule property through Court and hand over the value of 1/6th share in his favour; and further to direct the 1st defendant to pay 1/6th value of rental proceeds received by her from the joint schedule property w.e.f. 19.01.1994; further to declare that the Will dated 02.09.1991 alleged to have been executed by Late Ranganathan bequeathing the entire schedule property in favour of Parvathy Ranganathan is not valid as it is a forged one and to declare that the gift deed alleged to have been executed in favour of S.Karthik S/o. Srinivasan on 19.01.2004 is valid only to the extent of 1/6th undivided share in the suit schedule property as the 1st defendant is entitled to gift only to that extent.
2. The brief facts of the plaintiff's case are that:
a) That, the plaintiff and the defendant Nos.2 to 5 are the children of the 1st defendant and Late Sri.S.Ranganathan. One V.S.Nagarajan is the brother of Late S.Ranganathan.
V.S.Nagarajan died as a bachelor and he was residing with his brother Ranganathan till his death on 21.02.1985. Further, Sri.Nagarajan was the owner of an immovable property bearing No.518, situated at 11th Main, 3rd Cross, HAL 2nd Stage, Indiranagar, Bengaluru-560 038 having purchased the same vide 4 O.S.4335/2004 sale deed dated 23.08.1979. During his lifetime, V.S.Nagarajan had constructed a ground floor measuring 4 squares and a first floor consisting of a single room in the suit schedule property and lived there with his brother and his family. During the lifetime of V.S.Nagarajan, he executed a Will dated 26.06.1975, under which, he bequeathed all his movable and immovable properties in favour of his brother S.Ranganathan.
2b) It is further submitted that, in pursuance of the Will, S.Ranganathan derived title of the suit schedule property after the death of his brother as Nagarajan had bequeathed the suit schedule his properties to his brother Ranganath. Accordingly, Ranganathan applied for probate certificate to administer the Will of V.S.Nagarajan in P & SC No.10028/1985 and the same was granted by X Addl. City Civil Judge on 03.09.1985. Thus, Ranganathan became the absolute owner of the suit schedule property and continued to live in the said property with his family. The plaintiff was also living in the suit schedule property along with family members and continue to live therein with his wife even after his marriage in the year 1983. during 1985, on the instructions of his father Ranganathan, the plaintiff put up further construction in the 1st floor by using his savings and taking loans and shifted to the 1st floor with his family. Subsequently, during 1988 since the plaintiff's father needed more financial help, on his advice, the plaintiff shifted to another premises so that the rent from the 1st floor can be utilized by the parents. The other defendants continued to live in the ground floor. Meanwhile, the defendant Nos.3 and 4 got married and settled happily with their 5 O.S.4335/2004 respective families. The defendant Nos.1, 2 and 5 continued to live in the suit schedule premises along with Ranganathan. After the death of his father in the year 1991, intestate, the defendant Nos.1, 2 and 5 continued to live in the ground floor of the suit schedule premises.
2c) It is further submitted that, after the demise of his father Ranganathan, the defendants along with the plaintiff succeeded to his estate with equal shares. Accordingly, the plaintiff is entitled for 1/6th share in the suit schedule property and continued to be in joint possession of the same along with the defendants. The katha of the suit schedule property was transferred in the name of the 1st defendant for easy administration of the property with no objection affidavit executed by all the LRs. The 1st defendant has been collecting the rent of Rs.5,000/- from the 1st floor and Rs.2,500/- from the shop in the front portion of the ground floor on behalf of the joint owners. His father had not executed any Will during his lifetime. A will if any in the possession of the 1st defendant is a forged one. The 1st defendant has no absolute right over the suit schedule property and is entitled to deal with only to the extent of 1/6th share in the property. Recently, the plaintiff came to know that, defendant Nos.1 and 2 are trying to take steps to identify third parties to transfer the suit schedule property without informing the plaintiff as well as defendant Nos.2 to 5 and without offering the same to the joint owners. The 1st defendant has no right, title or interest in the entire property to transfer the same by way of a gift / sale in favour of any other person except to an extent of /6 th share. The transfer if any 6 O.S.4335/2004 made by the 1st defendant by way of gifts is any valid to the extent of her share. It is further stated that in the event of the property cannot be partitioned by metes and bounds, then the plaintiff is entitled to get the property sold to get his share in the property in spite of the gift / sale made in favour of the 3rd parties.
2d) It is further submitted that, the plaintiff got issued the legal notice to all the defendants seeking for the partition of his 1/6th share in the suit schedule property by metes and bounds or in the alternative to compensate him by paying the market value of his share in the property as it has become impossible for the plaintiff to continue the joint enjoyment of the suit schedule property. The said notice was duly received by defendant Nos.1, 2, 3 and 5. The notice to the defendant No.4 returned as not claimed. The 1st defendant replied the notice with untenable contentions, whereas, defendant Nos.2, 3 and 5 have not replied. Hence, the plaintiff approached this Court for partition of the suit schedule premises.
3. a) After receipt of suit summons, the defendants have appeared through their respective counsels and filed written statements. The defendant Nos.1, 2, 4 and 5 have filed common written statement and defendant No.6 has filed separate written statement.
The defendant Nos.1, 2, 4 and 5 in their written statement have admitted the relationship and taken contention that, the plaintiff after his marriage developed animosity with all the members of the joint family including his father and these defendants. On account of this, he got separated from the joint 7 O.S.4335/2004 family during the year 1985 and started living separately with his wife. The plaintiff after his separation from the joint family never participated in any of the affairs of the joint family. The plaintiff did not even bother to visit the joint family even to see his parents. Further, they have taken contention that, the plaintiff developed ill will that, even when his father fell ill and when he was admitted to the hospital at Bengaluru for treatment neither visited him nor helped him in any manner. The plaintiff did not help financially or in any way for the performance of marriage of defendant No.5. The father of the plaintiff during his last days was not happy with the attitude of the plaintiff shown towards him. In fact, he expressed openly about his resentment towards the plaintiff. Further, they have taken contention that, the father of the plaintiff who was working in ITI was getting handsome salary and was never in need of financial assistance and therefore, he did not ask the plaintiff to shift from the 1 st floor of the suit schedule premises. It is the plaintiff who on his own and for his own benefit shifted from the 1st floor of the suit schedule premises to another premises.
3b) It is further submitted that, the husband of the 1 st defendant became the absolute owner of the suit schedule property by virtue of the Will executed by his brother V.S.Nagaraj. The husband of the 1st defendant had thus became the absolute owner of the suit schedule property and till his last breath, it was his absolute and separate property and no one had any share, right, title or interest over the suit schedule property. The father of the plaintiff during his lifetime executed a Will dated 02.09.1991 8 O.S.4335/2004 bequeathing the entire suit schedule property in favour of the 1 st defendant. After the demise of husband of the 1 st defendant, the 1st defendant by virtue of the said Will dated 02.09.1991 executed by her husband, got transferred the katha of the suit schedule property to her name and thus, she became the absolute owner of the same. The plaintiff is not a co-sharer or the joint holder of the property along with the defendants in order to claim a share of the suit schedule property. The suit schedule property has gone to the hands of the 1st defendant by virtue of the Will executed by her husband and therefore, neither the plaintiff nor the defendant Nos.2, 3, 4 and 5 have any share, right and title over the suit schedule property. The katha of the property was transferred in the name of the 1st defendant on account of she being the absolute owner by virtue of the above said Will. There is no joint possession of the plaintiff along with the defendants in respect of the suit schedule property since the suit schedule property does not belong to the joint family of the plaintiff and defendants.
3c) It is further submitted that, the 1st defendant was collecting the rent from the tenants in occupation of the suit schedule property. However, the same is out of the absolute right, she had derived from the bequeath made by her husband in her favour. The 1st defendant as absolute owner of the suit schedule property out of love and affection towards her grandson S.Karthik Swaminathan has gifted the same in his favour on 19.01.2004 by executing a registered gift deed. Therefore, the 6th defendant has become the absolute owner of the suit schedule property and neither the plaintiff nor any of these defendants have right, title or 9 O.S.4335/2004 interest over the suit schedule property jointly or individually. The defendant Nos.1 and 2 who have no right over the suit schedule property cannot think of disposing the suit schedule property and therefore, there is no question of they indulging in disposing of the suit schedule property. They have admitted that, the plaintiff got issued the legal notice to these defendants and the 1 st defendant has suitably replied to the same and has asserted that, she is the absolute owner of the suit schedule property. Therefore, they prayed to dismiss the suit.
4. The 6th defendant has filed his written statement contending that, the suit is not maintainable and it is highly illegal and unsustainable. The suit schedule property is the self-acquired property of Nagaraj. Nagaraj had executed a Will in favour of S.Ranganathan and by virtue of the said Will, Ranganathan became the absolute owner of the suit schedule property. Said Ranganathan had executed a Will dated 02.09.1991 bequeathing the entire suit schedule property in favour of Parvathi Ranganathan, who is none other than the wife of Ranganathan and grand mother of 6th defendant. In view of the Will dated 02.09.1991, 1st defendant became the absolute owner of the said property and katha was also got transferred into her name. The 1st defendant who is the grand mother of the 6 th defendant has executed a registered gift deed in his favour on 19.01.2004. By virtue of the execution of the gift, the 6th defendant became the absolute owner of the suit schedule property. In view of the Will neither the plaintiff nor any of the defendants who has arraigned herein cannot be the owner of the suit schedule property.
10 O.S.4335/2004Absolutely, there is no cause of action for the plaintiff to file this suit for partition. Since, the 6th defendant is the absolute owner and none of the defendants or plaintiff do not have any right, interest or share in the suit schedule property. In this regard, when the 6th defendant has made an application for change of katha into his name, the Corporation Authorities after obtaining legal opinion have transferred the katha in to his name. There also the plaintiff raised objection regarding transfer of katha into the name of 6th defendant. The objection was also over ruled by the Corporation and katha transferred in to his name. In such an event the 6th defendant is the absolute owner of the suit schedule property. The plaintiff after filing the suit has sought for declaration declaring that the Will dated 02.09.1991 has to be set aside and further sought for 1`/6th share in the suit schedule property. In such an event a separate valuation memo was suppose to be annexed to the plaint. The same was not done by the plaintiff. The Court fee was not paid by the plaintiff. On these grounds, the 6th defendant prays for dismissal of the suit.
5. Based on the pleadings, my learned predecessor-in- office framed the following issues are as under :-
ISSUES
1. Whether the plaintiff proves that one Sri.Nagarajan, brother of father of the plaintiff Late S.Ranganathan, purchased the suit schedule vacant site under a sale deed dated 23.08.1979 ?
2. Whether the plaintiff further proves that during the life time of Nagarajan, he constructed the ground floor as contended in para-3 of the plaint ?11 O.S.4335/2004
3. Whether the plaintiff further proves that said Nagarajan executed Will dated 26.6.1975 bequeathing all his movable and immovable properties in favour of his brother S.Ranganathan, father of the plaintiff, as such it is the joint family property of the plaintiff and defendants ?
4. Whether the defendant Nos.1, 2, 4 & 5 prove that the plaintiff after his marriage, separated during the year 1985 and started living separately with his wife, as contended in para-3 of the written statement ?
5. Whether they further prove that Late S. Ranganathan, father of plaintiff and defendant Nos.2 to 5, husband of defendant No.1, exeucted the Will dated 02.09.1991 and bequeathed the suit schedule properties in favour of his wife-first defendant as contended in para-8 of the written statement ?
6. Whether they further prove that thereafter the said defendant No.1 by virtue of the Will executed by her husband, she executed a Gift deed in respect of the suit property in favour of Sri. S.Karthik Swaminathan on 19.1.2004, as such Karthik Swaminathan became the absolute owner of the suit property, as contended in para 12 of the written statement ?
7. Whether the plaintiff is entitled to the partition and separate possession of his 1/6th share in the suit property or in the alternative, entitled for valuation of the 1/6th share in the suit schedule property or again in the alternative, sell the suit property through the Court and hand over 1/6th share to the plaintiff ?
8. Whether the plaintiff is entitled to the declaration that Will dated 2.9.1991 executed by Late S. Ranganathan in favour of defendant No.1 is null and void ?
9. Whether the plaintiff is entitled to the declaration that the Gift deed executed by defendant No.1 in favour of Karthik Swaminathan is not binding on the share of the plaintiff ?12 O.S.4335/2004
10. Whether the plaintiff is entitled to the value of the rental proceeds from the 1st defendant w.e.f. 19.1.1994 ?
11.What decree or order ?
6. In order to prove the case, the plaintiff examined himself as PW.1 and got marked the documents at Ex.P.1 to Ex.P.17. On the other hand, the 2nd defendant and two witnesses namely Sri.M.G.Bhaskaran and Sri.V.L.Dorairaj examined as DWs.1 to 3 and got marked the documents at Ex.D.1 to Ex.D.7. The Hand Writing Expert Dr.Bhavana Desai examined as CW.1 and got marked Ex.C.1 to Ex.C.6.
7. Heard the arguments from both the sides. Perused the entire record.
8. My findings on the above issues are as under :-
Issue No.1 & 2 :- In the affirmative,
Issue No.3 :- Partly in the affirmative,
Issue No.4 :- In the affirmative,
Issue No.5 & 6 :- In the affirmative,
Issue No.7 to 10 :- In the negative,
Issue No.11 :- As per final order;
for the following :-
REASONS
9. ISSUE Nos.1 to 10: All these issues are
interconnected with each other, hence they are taken together for discussion in order to avoid repetition of facts.
13 O.S.4335/200410. The plaintiff in order to prove his case examined himself as PW.1 and he has reiterated the plaint averments in his examination-in-chief. He has stated that, he and the defendant Nos.2 to 5 are the children of the 1 st defendant and Late Sri.S.Ranganathan. One V.S.Nagarajan is the brother of Late S.Ranganathan. V.S.Nagarajan died as a bachelor and he was residing with his brother Ranganathan till his death on 21.02.1985. Further, he has stated that, Sri.Nagarajan was the owner of the suit schedule property by virtue of the sale deed dated 23.08.1979. During his lifetime, V.S.Nagarajan had constructed a ground floor measuring 4 squares and a first floor consisting of a single room in the suit schedule property and lived there with his brother and his family. During the lifetime of V.S.Nagarajan, he executed a Will dated 26.06.1975, under which, he bequeathed all his movable and immovable properties in favour of his brother S.Ranganathan, Accordingly, Ranganathan applied for probate certificate to administer the Will of V.S.Nagarajan in P & SC No.10028/1985 and the same was granted by X Addl. City Civil Judge on 03.09.1985. Thus, Ranganathan became the absolute owner of the suit schedule property and continued to live in the said property with his family. Further, he has stated that, during 1985, on the instructions of his father Ranganathan, he put up further construction in the 1st floor by using his savings and taking loans and shifted to the 1st floor with his family. Subsequently, during 1988 since his father needed more financial help, on his advice, he shifted to another premises so that the rent from the 1 st floor can be utilized by the parents. The other defendants 14 O.S.4335/2004 continued to live in the ground floor. Meanwhile, the defendant Nos.3 and 4 got married and settled happily with their respective families. The defendant Nos.1, 2 and 5 continued to live in the suit schedule premises along with Ranganathan. After the death of his father in the year 1991, intestate, the defendant Nos.1, 2 and 5 continued to live in the ground floor of the suit schedule premises. After the death of his father, all the children succeeded to the estate of Ranganathan and Ranganathan did not execute any Will in favour of the defendant No.1 and if any, in the possession of the 1st defendant is a forged one. The 1 st defendant had no right to execute the gift deed in favour of the defendant No.6 and it is created one.
11. The defendants in their written statement have admitted the relationship and also admitted that, V.S.Nagarajan who is the brother of Ranganathan was the owner of the suit schedule property and he had constructed the ground floor and portion of the 1st floor of the suit schedule property was constructed by the father of plaintiff and also admitted that, during 1988, the plaintiff shifted to another premises from the 1 st floor of the suit schedule property in order to enable his father to let out the same for his financial needs. They have also admitted that, Ranganathan was working in ITI. Further admitted that, the father of the plaintiff and defendant Nos.2 to 5 become the owner of the suit schedule property by virtue of the Will executed by V.S.Nagarajan. Further, they have taken contention that, Ranganathan put up construction in the first floor of the suit schedule property out of his retirement benefits. And taken 15 O.S.4335/2004 contention that during the life of lifetime of Ranganathan, he executed the Will dated 02.09.1991 bequeathing the entire suit schedule property in favour of the 1st defendant and the concerned authority accepted her name in the records. Thereafter, she executed the gift deed dated 19.01.2004 in favour of her grand son defendant No.6. In view of the specific defence taken by the defendants, the burden of proof is casted upon the plaintiff to prove the issue Nos.1, 2, 3, 7, 8, 9 and burden of proof is casted upon the defendant Nos.1, 2, 4 to 6 to prove issue Nos.4 to 6.
12. Discussion on issue Nos.1 and 2 is not required since, the defendants themselves have admitted that, V.S.Nagarajan, the paternal uncle of the plaintiff and defendant Nos.2 to 5 had purchased the suit schedule vacant site under the sale deed dated 23.08.1979 and also they have admitted that, during the lifetime of Nagarajan, he constructed a ground floor measuring 4 squares and a first floor consisting of a single room as contended in para 3 of the plaint. Even the defendants have also admitted that, Nagarajan had executed the Will dated 26.06.1975 bequeathing all his movable and immovable properties in favour of his brother Ranganathan, the father of the plaintiff and defendant Nos.2 to 5. The admitted facts need not be proved under Section 58 of the Indian Evidence Act. Under the said circumstances, discussion on issue Nos.1 and 2 does not arise.
13. Further, In order to prove that, after the Will executed in favour of the father of the plaintiff in respect of the suit schedule property, it become the joint family property, the plaintiff has 16 O.S.4335/2004 produced the documents at Ex.P.1 to Ex.P.17. Ex.P.1 is the certified copy of the sale deed dated 20.08.1979 in favour of V.S.Nagarajan. The land acquired by V.S.Nagarajan is not in disputed by the both the parties . Ex.P.2 is the copy of the order passed in P & SC No.10028/1985 by the X Addl. City Civil Judge, Mayohall, Bengaluru on 03.09.1985, wherein it shows that, Ranganathan had applied for probate by virtue of the Will executed by V.S.Nagarajan. The Court granted probate in favour of the father of the plaintiff, ownership of the Ranganathan is not in dispute Ex.P.3 is the legal notice dated 06.04.2004 issued to the defendant Nos.1 to 5 calling upon them to allot his share. Ex.P.4 to Ex.P.7 are the postal acknowledgements. Ex.P.8 is the returned postal envelop. All these documents disclose that, the notices have been duly served on the defendants. Ex.P.9 is the reply notice given by the 1st defendant. Ex.P.10 is the affidavit stating that, subscriber Sri.S.Ranganathan expired on 11.9.1991 at Bengaluru. The said subscriber Late Sri.S.Ranganathan has not left any Will. Further, this document discloses the names of LRs of S.Ranganathan, in that document, it is stated that, all the LRs have given their absolute consent to the transfer of the telephone No.541322 to the name of Sri.V.R.Srinivasan. Ex.P.11 is the Form of consent dated 16.12.1991 by the LRs of Late S.Ranganathan subscriber of telephone No.541322 given to the General Manager, Bengaluru Telecom District, consenting to transfer the telephone No.541322 to the name of V.R.Srinivasan, 2nd defendant. Ex.P.12 is the form of undertaking given to the General Manager, Telephones by the 2nd defendant V.R.Srinivasan undertaking to pay all the dues of the telephone No.541322.
17 O.S.4335/2004Ex.P.13 is the affidavit. Ex.P.14 is the certified copy of the petition in P & SC No.10028/1985 filed by S.Ranganathan. Ex.P.15 is the certified copy of the gift deed dated 19.01.2004 executed by the 1st defendant in favour of 6th defendant. Ex.P.16 is the order sheet of BBMP. This document discloses that, one Karthik applied for transfer of katha by virtue of the gift deed executed by the 1 st defendant. BBMP had given finding that, all the LRs of Ranganathan have right and only the defendant No.1 has executed the gift deed and the Assistant Law Officer put up the records to reject the application. Further, the order sheet discloses that, the Assistant Law Officer IV over ruled the objections of the plaintiff and considered the application of the defendant No.6. Ex.P.17 is the application dated 26.10.2004 by the 6th defendant to the Assistant Revenue Officer, Bengaluru Mahanagara Palike. The documents are not helpful to the plaintiff to establish that the suit schedule property is the joint family property of the plaintiff and defendants.
14. Further, in order to disprove the case of the plaintiff and also to establish the facts in issues, the 2nd defendant examined himself as DW.1. In his evidence, he has stated the facts, which are narrated in his written statement. Further, he has admitted that, V.S.Nagarajan was the owner of the suit schedule property and he bequeathed the suit schedule property in favour of his brother V.S.Ranganathan, the father of plaintiff and defendant Nos.2 to 5 by virtue of the Will dated 26.06.1975, thereby, Ranganathan become the owner of the suit schedule property. Regarding this aspect is concerned, there is no dispute 18 O.S.4335/2004 between the parties as discussed above . Further, DW.1 has stated that, his father Ranganathan bequeathed the suit schedule property in favour of the 1 st defendant by virtue of the Will dated 02.09.1991 and she become the owner of the suit schedule property. After that, she executed the gift deed dated 19.01.2004 in favour of the 6th defendant. To establish the facts in question, DW.1 has produced documents at Ex.D.1 to Ex.D.7. Ex.D.1 is the unregistered Will dated 02.09.1991 executed by Sri.S.Ranganathan in favour of his wife 1st defendant. Ex.D.2 is the agreement dated 22.05.1985 executed by Ranganathan in favour M/s.Sakti Engineers and Contractors for construction of the building. This document is also not in dispute. Ex.D.3 is the another agreement dated 03.01.1988 executed by V.S.Ranganathan in favour Sri.Vijay K. Mulgund for construction of the building. As per Ex.D.2 and Ex.D.3 Ranganathan agreed to pay the estimated construction amount towards construction work. Ex.D.4 is the probate obtained by S.Ranganathan in P & SC No.10028/1985. This document is not in dispute. Ex.D.5 is the affidavit dated 25.01.1980, in this document, Ranganathan given declaration before the Metropolitan Magistrate that, V.S.Nagarajan is the owner of the suit schedule property and he has no right over the said property. Ex.D.6 is the another affidavit dated 25.01.1980 executed by V.S.Nagarajan stating that, the suit schedule property is his self-acquired property having purchased and acquired the same out of his self-earned money and he has no family and there are no other legal heirs to the said immovable property, he intend to construct a residential building on the said vacant land. Ex.D7 is the agreement dated 18.06.1979 executed 19 O.S.4335/2004 by S.Gopalakrishna in favour of S.Ranganathan. From the documents, it discloses that, Nagarajan was the owner of the suit schedule property. He bequeathed the suit schedule property in favour of Ranganathan by virtue of the Will, thereby, he become the owner of the suit schedule property. Further, Ex.D1 discloses that, S.Ranganathan executed the Will in favour of his wife 1 st defendant. Ex.D.1 is disputed by the plaintiff on various grounds.
15. To prove the Will in question, the defendants examined the signatory to the Will Ex.D.1 by name Sri.M.G.Bhaskaran as DW.2. In his evidence, he has stated that, he is the close friend of Mr.S.Ranganathan. He has signed as witness to the Will dated 02.09.1991, which was executed by S.Ranganathan. S.Ranganathan has summoned him to his house and he has gone to his house on the said day. On the said day, he told him about the Will, which is likely to be executed in favour of his wife Smt.S.Parvathi Ranganathan, who is none other than his wife. Sri.V.L.Dorairaj also came to his house. Himself, Dorairaj and S.Ranganathan went to notary's house whose name is R.Lalithamma at Malleshwaram. When they reached the house of the notary, V.Sathyanarayana who has drafted and identified them was also present before the notary. In front of notary, himself and Dorairaj were signed as witnesses to the said Will along with S.Ranganathan. When he has executed the said Will, S.Ranganathan is aged about 66 years and is in good health. On his own volition, he has execution the Will in respect of House property bearing No.518, situated at 11th Main Road, 3rd Cross, HAL 2nd stage, Indiranagar, Bengaluru-560 038 belongs to 20 O.S.4335/2004 S.Ranganathan and the same was bequeathed in favour of his wife through the said Qill. S.Ranganathan has told him about the contents of the Will and his intention of executing this Will in favour of his wife.
16. Further, one more signatory to Ex.D.1 by name Sri.V.L.Dorairaj examined as DW.3. In his evidence, he has stated similar facts, which are stated by DW.2. The evidence of DWs.2 and 3 are supporting to the case of the defendants.
17. The plaintiff has contended that, the Will in question i.e., Ex.D.1 is a created document. To prove it, he has filed an application for appointment of a handwriting expert to find out the genuineness of the Will marked as Ex.D.1, which is produced by the defendants and to be scrutinized and compared with the signatures in Ex.D.2, Ex.D.3 and Ex.P.14. This Court rejected the said application. Aggrieved by the same, the plaintiff preferred W.P.No.47344/2015. The Hon'ble High Court of Karnataka has allowed the said Writ Petition and given permission to take steps for appointment of handwriting expert. Thereafter, this Court sent the documents to handwriting expert and the handwriting expert given her report. The Handwriting expert examined before this Court as CW.1 and got marked documents at Ex.C.1 to Ex.C.6. In the report at Ex.C.4, the Commissioner has given opinion that, the person who wrote admitted signatures marked as A1 to A4, A12, A13 also wrote the questioned signature marked as Q1. From the report Ex.C.4, it is crystal clear that, the signatures made by S.Ranganathan on Ex.D.1 Will is proved,.
21 O.S.4335/200418. During the course of cross-examination of CW.1, though the learned counsel for the plaintiff tried to elicit that, fashion of writing of Ranganathan in Q.1 is different in A.1 to A.4, but not succeeded. In the instant case, the defendants have proved the Will in accordance with Sec.68 of Indian Evidence Act. On the other hand, the plaintiff himself taken steps to appoint the handwriting expert to prove that, Ex.D.1 is a created document, but in the cross-examination, he has suggested that, in order to help the defendant, she has given false report. It is disputed by the witness. If really, to help the defendant, the Commissioner given false report, the plaintiff could have filed an application to reject the report of the Commissioner and to appoint a fresh Commissioner, but no application is filed, under such circumstances, it cannot be said that, to help the defendants, the Commissioner has given false report.
19. At the time of argument, the learned counsel for the plaintiff has argued that, in the instant case, the plaintiff issued the notice as per Ex.P.3 and the same has been served on the defendants and the 1st defendant given reply as per Ex.P.9. In Ex.P.9 reply, the Will executed by S.Ranganathan in favour of 1 st defendant has not been disclosed, if really, S.Ranganathan executed the Will in favour of 1st defendant, she could have mentioned regarding the Will executed by S.Ranganathan in favour of 1st defendant, it shows that, it is only after the service of notice, Ex.D.1 is created. To accept the case of the plaintiff, in the instant case, two witnesses i.e., DWs.2 and 3 to Ex.D.1 have categorically stated that, S.Ranganathan executed the Will and 22 O.S.4335/2004 they have signed on the document, and nothing is elicited from the mouth of the witnesses. Further, Dws.1 and 2 are not the family members of the plaintiff, they have no personal interest in the property, he has not explained why these witnesses given evidence against to him and moreover, he has not elicited regarding ill-will between these witnesses and plaintiff to arrive a conclusion that to take revenge against him, they have given false evidence. There is no reason to disbelieve the evidence of DWs1 and 2. On the other hand, the report of the commissioner is also not supporting. Under the said circumstances, it cannot be said that, Ex.D.1 Will is a created document after the death of S.Ranganathan.
20. Further, the learned counsel for the plaintiff has argued that, the documents at Ex.P.10 and Ex.P.11 disclose the names of LRs of S.Ranganathan and that, all the LRs have given their absolute consent to the transfer of the telephone to the name of Sri.V.R.Srinivasan and the 1st defendant has also put her signature and in Ex.P.11 the Form of consent dated 16.12.1991 by the LRs of Late S.Ranganathan subscriber of telephone given to the General Manager, Bengaluru Telecom District, consenting to transfer the telephone to the name of V.R.Srinivasan, 2 nd defendant and in the said document, they have stated that, Ranganathan has not left any Will, it is sufficient to draw inference that, Ranganathan has not executed any Will, it is prepared and concocted the same only for the purpose of this case. The argument of the learned counsel for the plaintiff has no merit, since in the instant case the plaintiff has failed to prove that, 23 O.S.4335/2004 S.Ranganathan has not executed the Will. Merely on the ground that, the word he has not left any Will as mentioned in the affidavit at Ex.P.11 is not a ground to arrive at a conclusion that, Ranganathan has not executed Will in favour of the 1st defendant.
21. Further, the learned advocate for the plaintiff has vehemently argued that, Ex.D.1 is the unregistered document and it has no sanctity in the eye of law. The argument submitted by the learned advocate for the plaintiff has no merit since an unregistered Will is valid, if it confirms to the legal requirement of two witness, who have signed the Will in the presence of the testator and testator has signed the Will in their presence. Further, in India registration of Will is not compulsory. A will is not a compulsorily registrable document under Sec.17 of the Registration Act, 1908, and according to Sec.8(e), it is the testator's choice as to whether he wishes to register it and even the document is also not required to pay stamp duty. In the instant case, the witnesses, who are examined as Dws.2 and 3 have stated that, the testator has signed on the Will in their presence, after that, they have signed on the Will. To rebut the said evidence, not placed any cogent evidence from the side of the plaintiff. So, I am of the opinion that, the plaintiff has failed to prove that, S Ranganathan died intestate. On the other hand, the defendants have proved that, S.Ranganathan executed the Will Ex.D.1 in favour of defendant No.1. Further, when the defendants satisfactorily establish that, Ranganathan executed the Will in favour of the 1st defendant, then the 1st defendant become the absolute owner of the suit schedule property by virtue of Sec.14(1) 24 O.S.4335/2004 of Hindu Succession Act. Sec.14(1) of the Hindu Succession Act says that; "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as a limited owner". In the instant case, the 1st defendant acquired the property by way of Will executed by her husband S.Ranganathan. The suit property was the self-acquired property of the husband of the 1 st defendant and he transferred the right under the Will and she become the absolute owner of the said property by virtue of Will executed by her husband and also under the proposition of law, she become the full owner. As a owner of the property, she has every right to execute the gift deed in favour of the 6 th defendant and nobody including the plaintiff have no right over the self-acquired property of the 1st defendant.
22. In view of my above discussions, I am of the opinion that, the plaintiff has proved that, Sri.Nagarajan who is the brother of father of the plaintiff Late S.Ranganathan, purchased the suit schedule vacant site under a sale deed dated 23.08.1979 and during the life time of Nagarajan, he constructed the ground floor and also proved that, said Nagarajan executed the Will in favour of his father S.Ranganathan and by virtue of the Will and probate, he become the owner of the suit property and the plaintiff failed to prove that, the suit schedule property is the joint family property of the plaintiff and defendants.
23. Further, the defendants have proved that, the plaintiff has started to live separately with his wife after his marriage. The 25 O.S.4335/2004 defendants have also proved that, S.Ranganathan, father of the plaintiff and defendant Nos.2 to 5, husband of defendant No.1 executed the Will dated 02.09.1991 and bequeathed the suit schedule property in favour of his wife 1st defendant, thereafter, the 1st defendant executed the gift deed in favour of the 6th defendant. Under such circumstances, the plaintiff is not entitled for the reliefs as sought in the suit. Accordingly, I answer issue Nos.1 and 2 are in the affirmative, issue No.3 partly in the affirmative. issue No.4 is in the affirmative, issue Nos.5 and 6 are in the affirmative and issue Nos.7 to 10 are in the negative.
24. ISSUE NO.11: In view of my aforesaid discussions, I proceed to pass the following: -
ORDER The suit of the plaintiff is hereby dismissed with cost.
Draw the decree accordingly.
(Dictated to the Stenographer, transcription computerised by her, corrected and then pronounced by me in the open court on this the 16 th day of September 2022.) (SREENIVASA) I Addl. City Civil & Sessions Judge, Bengaluru.26 O.S.4335/2004
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW.1 : Sri.V.R.Subramanyam.
DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P.1 : Certified copy of the sale deed dated
20.08.1979 in favour of V.S.Nagarajan.
Ex.P.2 : Copy of the order passed in P & SC
No.10028/1985 by the X Addl. City Civil
Judge, Mayohall, Bengaluru on 03.09.1985
Ex.P.3 : Legal notice dated 06.04.2004 issued to
the defendant Nos.1 to 5
Ex.P.4 to 7 : Postal acknowledgements.
Ex.P.8 : Returned postal envelop.
Ex.P.9 : Reply notice given by the 1st defendant.
Ex.P.10 : Affidavit.
Ex.P.11 : Form of consent dated 16.12.1991
Ex.P.12 : Form of undertaking
Ex.P.13 : Affidavit.
Ex.P.14 : Certified copy of the petition in P & SC
No.10028/1985 filed by S.Ranganathan.
Ex.P.15 : Certified copy of the gift deed dated
19.01.2004 executed by the 1st defendant in
favour of 6th defendant.
Ex.P.16 : Order sheet of BBMP.
Ex.P.17 : Application dated 26.10.2004 by the 6th
defendant to the Assistant Revenue Officer,
Bengaluru Mahanagara Palike.
27 O.S.4335/2004
WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 : Sri. V.R.Sreenivasan.
DW.2 : Sri.M.G.Bhaskaran.
DW.3 : Sri.V.L.Dorairaj.
DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 : Unregistered Will dated 02.09.1991 executed
by Sri.S.Ranganathan in favour of his wife 1st defendant.
Ex.D.2 : Agreement dated 22.05.1985 executed by Ranganathan in favour M/s.Sakti Engineers and Contractors Ex.D.3 : Another agreement dated 03.01.1988 executed by V.S.Ranganathan in favour Sri.Vijay K. Mulgund Ex.D.4 : Order of the probate obtained by S.Ranganathan in P & SC No.10028/1985.
Ex.D.5 : Affidavit dated 25.01.1980.
Ex.D.6 : Another affidavit dated 25.01.1980 executed by
V.S.Nagarajan
Ex.D.7 : Agreement of sale dated 18.06.1979 executed
by S.Gopalakrishna in favour of
S.Ranganathan.
(SREENIVASA)
I Addl. City Civil & Sessions Judge,
Bengaluru.