Bangalore District Court
Armstrong vs Susainathan J Williams on 12 November, 2025
1 O.S.No.1503/2014
KABC010107782014
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH NO.23)
DATED THIS THE 12th DAY OF NOVEMBER 2025
PRESIDING OFFICER
PRESENT : Shri. GOPAL KRISHNA RAI. T
XXV ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE.
O.S.No.1503/2014
PLAINTIFF/S : 1. Armstrong,
S/o Late Theras Raj,
Aged about 42 years.
2. S. Leofelix,
S/o Late Socratos,
Aged about 22 years,
Both ar residing at,
No.53, II Stage,
Gowthampuram,
Halasoor,
Bengaluru - 560008.
(Rep.by G.M.R., Advocate)
V/s
DEFENDANT/S : J. Susainathan @ Williams,
S/o Late Joseph,
Aged about 48 years,
2 O.S.No.1503/2014
No.54, II Main Road,
II Stage, Gowthamapuram,
Halasoor,
Bengaluru - 560008.
(Rep.by C.P.R., Advocate)
Date of institution of suit 21.02.2014
Nature of suit Declaration and Possession
Date of commencement of 15.07.2019
recording of evidence
Date on which the judgment was 12.11.2025
pronounced
Duration of the suit Year/s Month/s Day/s
11 08 19
JUDGMENT
The Plaintiffs have filed the suit for the relief of declaration of their title over the suit schedule property as its absolute owners, for the recovery of physical possession of the same and also for the relief of permanent injunction restraining the defendant from interfering with their peaceful possession and enjoyment of the same.
The suit schedule property is all that piece and parcel of immovable property including asbestos sheet house bearing Municipal No. 54, 2nd mine, 2nd stage, situated at Gauthamapura, Halasuru- 3 O.S.No.1503/2014 Bengaluru measuring east to west. 16 feet and north to south 16 feet in all 256 square feet and the same is bounded on east by road, west by private property, north by private property and south by private property.
2. Briefly stated the case of the plaintiffs is that the second plaintiff is the son of late Socrates and the first plaintiff and Socrates are brothers. The second plaintiff's mother is no more, late Socrates and the first plaintiff are the sons of Therasraj and Lily Theras raj. The above said Socrates was died on 16.01.2004 and the second plaintiff had no natural guardian except the first plaintiff. The suit schedule property originally belonged to Subramani and he was in possession and enjoyment of the same and for long standing physical possession and enjoyment of the same, Bengaluru City Corporation had recognized the same and accordingly issued notice dated 18.11.1972 calling upon him to pay tax in respect of said property to regularize his possession. This notice clearly establishes the right of Subramani over the said property. But, BCC has not issued any possession certificate to late Subramani. The first plaintiff's paternal uncle, late Subramani had changed entire revenue records such as katha certificate, katha extract in his name and during his lifetime, he had paid upto date taxes to BCC and now BBMP. 4 O.S.No.1503/2014 Said Subramani was in physical possession of the suit property during his lifetime and as he had no issues, subsequently first plaintiff's father was in physical possession and enjoyment of the same during his lifetime. Father of plaintiff No. 1 and grandfather of plaintiff No. 2 was in physical possession of the property upto 20.10.2020. All the documents such as notice dated 18.11.1972, BCC Kata Extract dated 29.09.1992, Khata Certificate of BPMP, Khatha extract, tax paid receipts and Encumbrance certificates clearly reflect that Subramani was the absolute owner of the suit schedule property. The other portion bearing immovable property No. 53 was allotted by Bangalore City Corporation to Theresraj and father of plaintiff No. 1 and second plaintiff's grandfather and presently the plaintiffs are in physical possession and enjoyment of the same and the same has nothing to do with the suit property and the same is not in dispute. The plaintiff's paternal uncle Subramani had executed a Will dated 10.06.1975 in favour of the plaintiffs. The defendant who is relative of plaintiff's family and with this relationship, the plaintiffs have let out the suit property to him to his family on 20.10.2000 free of cost and to pay maintenance charges at the rate of Rs.500 per month as he has no house in Bengaluru. The plaintiffs have not changed revenue records into their 5 O.S.No.1503/2014 names upto 2012 pertaining to the suit schedule property and same is standing in the name of Subramani. When the plaintiffs have filed application before BBMP Domaluru Division for change of revenue records, the defendant has filed objection stating that the property was his grandfather's property i.e. N Subramani, but this defendant is in no way related to the family of the plaintiffs by blood. Thus, above version made by defendant is a fabricated version to knock off the suit property. The plaintiffs are having every right, title, and interest over the suit property as their paternal uncle had no issues automatically, they become owners of the property by way of Hindu Succession Act. On 21.12.2013, the plaintiffs have personally approached the defendant and demanded to vacate and deliver vacant possession of the same but he has behaved in a rude manner and told them that he is in physical possession and enjoyment of the suit property and he cannot be evicted. Hence, prayed for the relief of declaration, possession and also for the relief of permanent injunction.
3. Per contra, the defendant has filed written statement and contended that the suit filed by the plaintiff is not maintainable either on law or on facts. The contention that second plaintiff is son of Socrates 6 O.S.No.1503/2014 and that first plaintiff and late Socrates are brothers is true and admitted. The fact that Socrates was died on 16.01.2004 and the second plaintiff had no natural garden except first plaintiff may be true. However, family tree produced by the plaintiffs is denied. The contention that Subramani was in physical possession and enjoyment of the suit property and Bengaluru Corporation had issued notice to him on 18.11.1972 are all admitted as true. It is true that Subramani had changed entire revenue records such as Khatha Certificate and Khata Extract in his name and he has been paying upto date tax to BBMP is admitted. It is true that Subramani was in physical possession and enjoyment during his lifetime and he had no issues is true. The contention that plaintiff's father was in possession and enjoyment of the suit property until 20.10.2000 is denied. The documents narrated in plaint para 7 are all admitted. The contention that other portion of property in No.53 was allotted to Theres raj and that the plaintiffs are in peaceful possession and enjoyment of the same is true. The contention that Subramani had executed Will dated 10.06.1975 in favour of the plaintiff's in respect of suit schedule property is denied and the Will is forged and created by the plaintiffs. The contention that the plaintiffs have let out the property to the family of the defendants on 20.10.2010 on payment of maintenance 7 O.S.No.1503/2014 charges of Rs.500 per month are all absolutely false and denied. The other contentions taken in the plaint paragraph No.11 are all denied. The contention that the plaintiffs have got right over the suit property under Hindu Succession Act are absolutely false. The contention that on 21.12.2013, the first plaintiff and father of second plaintiff have personally approached the defendant and demanded vacant possession of the suit property and he had behaved in a rude manner are all denied as false. The plaintiffs have not valued the suit properly and court to paid is insufficient. The suit is not maintainable for non-joinder of necessary parties since Subramani is having a brother by name Ramu, who died leaving behind his LRs and his sister Smt.Sampangiamal. Late Subramani was the absolute owner of property bearing number 54 more fully described in the written statement. N. Subramani and his wife Sampangiamal had no issues and therefore, they have adopted defendant and brought up him from the past 48 years from his age of 4 years he has been residing in the written statement property with his grandfather and after their death, he is in occupation of the same. Subramani had performed Baptism on 03.01.1962 and he is the God Father of the defendant and Baptism Certificate is also produced after taking the defendant in adoption, The family of the defendant is settled in written 8 O.S.No.1503/2014 statement schedule property and Subramani and his wife have taken care of education of the defendant. The last rites of late Subramani and Sampangiamal was done by the defendant, who were died on 18.05.1980 and 07.08.1992. The defendant has been paying tax to the written statement schedule property to the Corporation. The defendant has performed his sister's marriage and birthday of Master Rajkiran in the written statement said property. The marriage of the defendant has been performed on 14.10.1998 in the written statement said property and he continues to be in possession of the written statement said property. The defendant has been residing in the written statement schedule property from the age of 4 years from 1965 till date. The original documents pertaining to the written statement schedule property was pledged by the defendant as per the advice of his grandmother, after death of grandmother, he pledged the same with one Smt. Kanchana Joseph on 13.10.1993, from whom the first plaintiff fraudulently taken original documents and filed the false and frivolous suit. The document was cunningly obtained by the plaintiff for transferring khatha from the name of Subramani and this defendant has protested by filing the objection. The defendant was taken in by adoption when he was aged 4 years. The defendant has become the owner of written statement 9 O.S.No.1503/2014 schedule property by way of adverse possession. By knowing fully well that the plaintiffs have no manner of right, title and interest over the suit schedule property, they have filed the suit with an intention to knock off the property described in the written statement schedule. Hence, prayed to dismiss the suit by imposing costs.
4. Based on rival pleadings, this Court has framed the following issues.
1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
2. Whether the plaintiffs prove the relationship of landlord and tenant between the plaintiffs and the defendant?
3. Whether the plaintiffs prove the legal and valid termination of tenancy of the defendant in respect of the suit schedule property?
4. Whether the plaintiffs are entitled for the relief of declaration as prayed in the plaint?
5. Whether the plaintiffs are entitled for the possession of the schedule property?
6. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed?
7. What order or decree?
10 O.S.No.1503/2014
5. My findings to the above said issues :
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
Issue No.7 : As per final order
for the following
R EAS O N S
6. Issue No. 1 :- Here in this case, at the earliest point of time, the suit schedule property belonged to Subramani who died on 18.06.1978 is specifically pleaded by the plaintiffs. However, it is the contention of the Defendant that Subramani was died on 18.05.1980. This suggestion directed to P.W.1 at the time of his cross-examination, is contrary to the death certificate produced at Ex.P.10. This is because the genuineness or otherwise of Ex.P.10 is not at all denied or disputed by the defendant. A perusal of Ex.P.10 would show that Subramani was died on 18.05.1978. It is relevant to note that the defendant has produced death certificate of M. Subramanyam as per Ex.D5. A perusal of this document would show that M. Subramanyam, son of Muthyalappa, was died on 18.05.1980 11 O.S.No.1503/2014 and this death was registered on 14.06.1980. Further, place of death is shown as No.54, 2nd Main Road, Gautampuram, Halsoor, Bengaluru 8. Whereas, Ex.P.10 would show that Subramani was died on 18.05.1978 and his death was registered on 23.06.2011. The entry that is made in Ex.P.10 is much subsequent to the date of entry found in Ex.D.5. Thus, it is for the plaintiffs to establish that Subramani was died on 18.05.1978. But as has been contented by the defendant, he has shown to the satisfaction of the court that Subramani was died on 18.05.1980 and not as has been contented by the plaintiffs. In this view of the matter, entry made at the earliest point of time more precisely on 14.06.1980 is to be accepted and accordingly it is held that Subramani was died on 18.05.1980 and not as has been contented by the plaintiff that on 08.05.1978 Subramani was died.
7. It is the contention of the plaintiff that the suit schedule property was originally belonged to late M. Subramani and he was in physical possession and enjoyment of the same and Bangalore Corporation has recognized him as owner by virtue of his long physical possession and accordingly notice was issued on 18.11.1972 calling upon him to pay the tax to the schedule property to regularize his possession over the 12 O.S.No.1503/2014 same. Here in this case it is relevant to make a note that the defendant being the contesting party has not at all denied or disputed the fact that at the earliest point of time, M Subramani was in a physical position and enjoyment of the suit schedule property and accordingly Bengaluru Corporation had issued notice dated 18.11.1972 calling upon him to pay property tax to regularise his possession over the schedule property. Thus in the given circumstances, it is shown to the satisfaction of the court that the parties to the litigation trace their title over the suit schedule property through M. Subramani.
8. The fact that Subramani had a brother by name Theras raj and said Theras raj had a wife by name Lily Theras raj who was died on 06.02.1989 is not in dispute. Further, the fact that Theras raj and Lily Theras raj had two sons by name Socrates and Armstrong is also not denied or disputed by the defendant.
9. It is the contention of the plaintiff that plaintiff No. 2, Leo Felix is son of Socrates and Sagaya Mary and whereas, plaintiff No.1 is the son of Theres raj. Here in this case from the contention of the plaintiffs it is clear that Socrates and Armstrong are children of Theresa Raj and Lily 13 O.S.No.1503/2014 Theresa Raj, whereas plaintiff No.2 is the son of Socrates. The plaintiffs have claimed their right over the suit schedule property not only as blood relatives of Subramani, but also according to them, during his lifetime, Subramani had executed a Will dated 10.06.1975 bequeathing the suit schedule property in their favour. Whereas, it is the contention of the defendant that Subramani and Sampangiammal taken him on Adoption and therefore, they have inducted him to the suit schedule property and he has been possession and enjoyment of the same since from 48 years. In this view of the matter, it is for this Court to appreciate ocular evidence placed on record in a proper perspective.
10. Further, it is the contention of the plaintiffs that as the defendant is not their blood relatives but they have inducted him in the suit property on 20.10.2000 and he was asked to pay Rs.500/- per month towards maintenance charges. They have stated as if, the defendant is their relative. Thus, according to the plaintiffs, the defendant is tenant in respect of the suit property as he was not having any house in and around Bengaluru. Further, the contention taken by the plaintiffs would also show that it was for the defendant to pay Rs.500 per month pertaining to the suit schedule property towards maintenance charges. In 14 O.S.No.1503/2014 this view of the matter, it is the responsibility/burden on the part of the plaintiffs to show that the defendant is a tenant under them in respect of the suit schedule property.
11. Here in this case, in order to substantiate the case of the plaintiffs, plaintiff No.1 Armstrong is examined as P.W.1. His evidence is that Subramani was the absolute owner in lawful possession and enjoyment of the suit schedule title property and on 10.06.1975, he had executed a Will in favour of the plaintiffs. Therefore, it can be gathered from the evidence of P.W.1 that the plaintiffs claim their right over the suit schedule property by virtue of will dated 10.06.1975. Further, the evidence of the P.W.1 would also show that on 20.10.2010, they have inducted the defendant to the suit schedule property as he had no house of his own at Bengaluru. However, it was for him to pay maintenance charges of Rs.500/- per month. Hence, it is for this Court to appreciate as to whether, the plaintiffs have proved the factum of execution of Will dated 10.06.1975.
12. In their plaint, the plaintiffs have also pleaded that they are the owners of the suit property under Hindu Succession Act. This averment 15 O.S.No.1503/2014 made in paragraph No.12 of the plaint is not applicable to the plaintiffs because they are governed by Christianity and the applicability of Hindu Succession Act to the Christians is not known to law. In view of the above, it is for the plaintiffs to prove due execution of Will dated 10.06.1975 and thereby to establish their title over the suit property.
13. Further, it is also for them to establish the fact that they have inducted the defendant to the suit schedule property on 20.10.2010. If they could able to establish the execution of Will dated 10.06.1975 and induction of defendant on 20.10.2010, definitely they are entitled for the possession of the suit schedule property as well as declaration of their title over the same.
14. It is the contention of the defendant, Subramani and Shampangiamal have adopted him when he was aged about 4 years and accordingly, Subramani had performed Baptism and therefore, he is his god father and Baptism certificate issued accordingly. However this court is reminded the fact that certificate of Baptism Certificate is issued only when a Hindu converted into Christian, or the time of removal of sin and not at the time of giving a Christian child on adoption. 16 O.S.No.1503/2014 Therefore, mere production of Baptism certificate will not lead to the conclusion that Subramani and Sampangiamal during their lifetime, have adopted the defendant and inducted him to the suit schedule property.
15. Since because the plaintiffs have approached this Court for relief of declaration of their title and possession over the same, as provided under Section 101 and 102 of the Evidence Act, it is for them to prove their title as well as the permissive possession of the defendant over the suit schedule property.
16. It is relevant to note that as has been stated herein above, the evidence of P.W.1 is in tune with the facts that are pleaded by the plaintiff. His evidence would also show that Subramani had executed a Will on 10.06.1975. In fact during the course of cross examination of P.W.1, it was suggested to him that Ex.P.9 is a document concocted by the plaintiffs, but denied.
17. Further, the evidence of P.W.1 in cross examination would show that based on Ex.P.9, they have given application to BBMP to mutate the khatha in their name during 2012. The cross examination directed to 17 O.S.No.1503/2014 P.W.1 would show that the defendant has categorically denied due execution of Ex.P.9 Will by M. Subramani. In this view of the matter, it is for the plaintiffs to prove due execution of Ex.P.9 as required under Section 68 of the Evidence Act and Section 63 of Indian Succession Act of 1925.
18. In fact, the plaintiff has produced notice issued by Bengaluru City Corporation in the year 1972 as per Ex.P.1. A perusal of this document would show that Bengaluru City Corporation has called upon M Subramani to pay tax to the Corporation. Further Ex.P.2 is the show cause notice issued by Corporation of the City of Bengaluru calling upon Subramani to pay tax for the year 1976-77 to the tune of Rs.39.49.
19. In addition to it, khatha extract is produced as per Ex.P.3 and katha certificate is produced at Ex.P.4. A conjoint reading of these two documents would show that katha of property number 54 was mutated in the name of Subramani. Here in this case the parties to the litigation categorically admitted that Subramani was the absolute owner of the suit schedule property.
18 O.S.No.1503/2014
20. Further to show that Subramani has been paying to the Corporation, tax paid receipts are produced at Ex.P.5. Here in this case the fact that at the earliest point of time, khatha of the suit property was mutated in the name of Subramani and he has been paying tax to Bengaluru City Corporation is not in dispute. In addition to it, encumbrance certificates are produced at Ex.P.6. These documents demonstrately indicate that Subramani was the was in settled possession of the property bearing No. 54 and he has been paying tax to the Bangalore City Corporation.
21. It is the contention of the plaintiffs that before 20.10.2010, they were in possession and enjoyment of the suit schedule property. According to them on 20.10.2010, they have inducted the family of the defendant to the suit schedule property and it was for them to pay maintenance charges of Rs.500/- per month. In fact, P.W.1 during the course of his cross-examination has in categorical terms deposed that he does not possess any document to show that prior to 20.10.2010 they have been in possession and enjoyment of the suit schedule property and they have been residing therein. If really the contention of the plaintiffs that they have inducted the defendant and his family to the suit property 19 O.S.No.1503/2014 on 20.10.2010 were to be true, it was for the them to prove and establish the fact that prior to that they were in possession and enjoyment of the suit property. But the evidence of PW1 would show that they do not possess any document to show that the they have been in possession and enjoyment of the suit schedule property prior to 2010. Hence, the evidence of P.W.1 itself is sufficient to hold that prior to 20.10.2010, the plaintiffs were not in possession and enjoyment of the suit schedule property. This is because the defendant has produced undisputed clinching evidence to show that much possession prior to 20.10.200, he was in possession of the suit schedule property.
22. Further, it is relevant to note that the claim of the plaintiffs is based on Will dated 10.01.1975. Therefore, it is just and necessary to appreciate other evidence produced by the plaintiffs which do fall within the purview of Section 69 of the Evidence Act.
23. Here in this case, the fact that plaintiff No. 1 Armstrong is the son of Theres raj and that plaintiff No.2 Leo Felix is the grandson of Theres raj and that Theres raj is brother of owner of the property by name Subramani is not in dispute. The evidence of P.W.1 with regard to inter- 20 O.S.No.1503/2014 se relationship by and between the plaintiffs and Subramani is not denied. Though the plaintiffs have contended that the defendant is their relative, they have not narrated the genealogy. However, it is made clear that the defendant is not blood relative of the plaintiffs or deceased Subramani. It is relevant to note that P.W.1 has deposed that his paternal uncle Subramani had executed joint Will dated 10.06.1975. In fact this Will is produced by the plaintiffs as per Ex.P.9. A reading of Ex.P.9 would show that Subramani had bequeathed Property bearing number 54, measuring 16 X 16 feet to the plaintiffs in the presence of Theres Raj and Govindamal.
24. Now, it is the contention of the plaintiffs that Theres Raj and Govindamal are the attesting witnesses to Ex.P.9. Further, a perusal of Ex.P.9 would show that M.Murthy Advocate Bengaluru has drafted the said Will. In this view of the matter, it is for the plaintiffs to prove the due execution of the Will.
25. The evidence of P.W.1 that Subramani had executed Ex.P.1 dated 10.06.1975 is in accordance with the facts that are pleaded in the plaint. A perusal of evidence of P.W.1 in cross-examination would show that in 21 O.S.No.1503/2014 the year 2000 he came to know about the execution of Ex.P.9. However, his evidence would show that immediately they have not filed any application to BBMP to transfer the khatha of the suit schedule property in their name. His evidence would show that during 2012 they have given application to BMP. If really, the contention of Subramani had executed Will as per Ex.P.9 were to be true and the plaintiffs came to know the same in the year 2000, they ought to have applied for probate and at least filed application to BBMP to mutate the khata of the suit schedule property in their name. But, they have not chosen to do so. In this view of the matter, non-filing of application to mutate katha of the suit schedule property by virtue of Ex.P.9 Will is one of the circumstances to believe that as has been contented by the plaintiffs, Will at Ex.P.1 was not executed by Subramani on 10.06.1975. Further, it is the evidence of P.W.1 that in so far as Ex.P.9 is concerned, Theres raj and Govindammal are the two attesting witnesses.
26. The fact that said Teresa Raju is the father and Govindamal is the grandmother of the plaintiff No.1 / P.W.1 is not in dispute. Therefore, both the attesting witnesses shown in Ex.P.9 are father and grandmother of plaintiff No.1. In this view of the matter, there is justification in the 22 O.S.No.1503/2014 submissions of the counsel for the defendant that only relatives are shown as attesting witnesses and therefore, inference is that Ex.P.9 is a document concocted by the plaintiffs to knock off the property.
27. Further, the evidence of P.W.1 would show that Theres Raj and Govindamal were residing with them. Therefore, it can be gathered that beneficiaries under Ex.P.9, are aware of execution of the same. The contents of Ex.P.9 would show that one M. Murthy had drafted the said Will. But, when a suggestion was directed to the effect that no such advocate by name M. Moorthy is available in Bengaluru, P.W.1 has stated that he does not know. In this view of the matter, the evidence of P.W.1 being the profounder/beneficiary under Will is of no consequences because it is for the plaintiffs to prove due execution of the Will as provided under Section 68 of the Evidence Act.
28. The fact that Teres Raj and Govindramal are no more is not in dispute. In this view of the matter, it is just and necessary to appreciate the evidence of P.W.2. This P.W.2 Mrs. Paulina has deposed that, she is the wife of Mohan Kumar and she has personally witnessed the execution of the Will. . The fact that Theras raj and P.W.2 are brother 23 O.S.No.1503/2014 and sister by relation is not disputed. This witness during the course of her evidence has deposed that Ex.P.9 (a), (b) and (c) are the LTM of Subramani. Similarly, it is her evidence that Ex.P.9(d) is the signature of Theras Raj. In this view of the matter, it was argued by the learned counsel for the plaintiffs that PW2 being the person acquainted with the signature of Theras Raj, is the right person to depose the same and her evidence do fall within the purview of Section, 69 of the Evidence Act.
29. In fact this P.W.2 is subjected to the process of cross-examination and she has deposed that advocate had drafted Ex.P.9 and Subramani has brought the same. Further according to her, Ex.P.9 was drafted in the house of Subramani. If really this evidence of P.W.2 were to be true, there was no impediment for her to sign on Ex.P.9. Further, the evidence of P.W.2 would show that she does not know as to whether at the time of execution of Ex.P.9, the defendant was residing in the suit schedule property or not. Further, the evidence of P.W.2 would show that at the time of Subramani giving instruction to the advocate, she was not present at the spot. So, inference is that she was not present at the spot. 24 O.S.No.1503/2014
30. It is also her evidence that at the time when she had gone to the house of Subramani, Subramani, Sampangiamma, Govindammal and Valli are present. It is not her evidence that Theras raj was also present. However, the evidence of P.W.2 is only relied to the extent of identifying the signature of Theras raj and LTM of Govindammal and not more than that. Therefore, the evidence of P.W.2 to the effect that she was present at the time of execution of Ex.P.9 is of no consequences.
31. Further, from the perusal of evidence of P.W.2, one thing is clear that her evidence does not inspire confidence in the mind of the court. This is because, when a specific suggestion was directed to the effect that at the time of alleged execution of Ex.P.9, the defendant was residing in the suit schedule property, she has deposed that she is not aware of the same. Further, her evidence is very much silent with regard to the fact that she is acquainted with the signature of Theras raj. Therefore, as has been contented by the Learned counsel for the defendant, the evidence of P.W.2 does not qualify the requirement of Section 69 of the Evidence Act.
32. In fact Learned counsel for the plaintiffs has argued that under Section 67, if a document is alleged to be signed by any person, the 25 O.S.No.1503/2014 signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Section 45 and 47 of the Act, the opinion of the expert and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirement and the nature of proof which must be satisfied by the party who relies on a document in a court of law.
33. Here in this case in order to comply the above requirement of law, P.W.2 is examined. But P.W.2 has given evidence as if she was very much present at the time of execution of Ex.P.9. Her evidence does not qualify the requirement of Section 69 because she has nowhere stated that she is acquainted with the signature of Theres raj and hence she has identified the signature on Ex.P.9.
34. Further Learned counsel for the plaintiff has relied on the decision of our Hon'ble High Court of Karnataka in ILR 2017 26 O.S.No.1503/2014 Karnataka 5433 in the case between Vasanth H. Jaywant Bhasme and others v/s Shankarrao Bhimarao Bhasme, since dead by LRs. In this decision it was held that the principles governing the proof of execution of a will are well settled. Section 68 of the Act is very much clear about the procedure to be followed for proving the Will if attestors are available. The purport of Section 69 of the Act is that anybody acquainted with the handwriting of the attestor and the execution can be examined. If a son or a daughter is examined, his or her evidence may be given due weightage. If none of them is available, any person acquainted with handwriting of the testator or executor can be examined.
35. Here in this case, the evidence of P.W.2 is not sufficient to hold that she is acquainted with signature of Theresraj. Furthermore, Ex.P.9 contains LTM of Subramani and Govindammal. Therefore, under such circumstances, evidence of P.W.2 is of no assistance to the plaintiffs. Furthermore, there is no explanation from the side of the plaintiffs as to what is the impediment for them to examine advocate who had drafted Ex.P.9. Furthermore, it is not their contention that Advocate M. Moorthy who had drafted Section P9 is no more. Thus, in the given 27 O.S.No.1503/2014 circumstances, though the ratio of the above decision is well settled, the same is not applicable to the facts and circumstances of this case because the evidence of P.W.2 is very much silent to the effect that she is acquainted with the signature of Theras raj.
36. Further learned counsel for the plaintiff is has placed reliance on the decision reported in 2008 AIR SCW 3429, wherein it was held that proof of execution of will, where no attesting witnesses found, relaxation from strict proof available, party must have taken steps to compel attendance of attesting witnesses and no such steps taken, on mere statement of party made through counsel that this witness no more, is not sufficient.
37. Here in this case, learned counsel for the plaintiff has invited the attention of this Court with regard to Section 69 of the Evidence Act. Further he has placed reliance on the decision reported in AIR 1981, Calcutta 83, AIR 1959 Supreme Court 443 and AIR 1972 Supreme Court 2492 and argued that by examining P.W.2, the provisions of Section 69 of Evidence Act is complied with and therefore, Ex.P.9 is proved. But here in this case, the evidence of P.W.2 itself would show 28 O.S.No.1503/2014 that she was very much present at the time of execution of Ex.P.9. But there is no explanation from her side as to what was the impediment for her to sign on it. Furthermore, her evidence is very much silent to the effect that she had seen the signature of Theras Raj and therefore, she is acquainted with the same.
38. Here in this case, in order to disprove the contention of the plaintiffs, the defendant is examined as D.W.1. His evidence would show that Ex.P.9 is a document concocted by the plaintiffs to knock off the suit schedule property. However, based on this denial itself, it cannot be said that Ex.P.9 is a document concocted. The learned counsel for the plaintiff has invited the attention of this Court with regard to the facts that are elicited from the mouth of D.W.1 during the course of his cross- examination. The evidence of D.W.1 would show that he is aware as to what are all the documents produced by the plaintiff. His evidence would show that he has seen Ex.P.9 Will produced by the plaintiffs. His evidence would also show that the suit property belonged to Subramani. It is also his evidence that the same is the absolute property of Subramani.
29 O.S.No.1503/2014
39. His evidence would show that Govindammal is the mother of Sampangiamma and she is no more and she was a illiterate lady and she used to put her LTM. Further, he has admitted that in Ex.P.9, Teresa Raj has affixed his signature. By placing reliance on this portion of evidence of D.W.1, it is argued that D.W.1 has admitted that Theras raj signed on Ex.P.9. But it is relevant to note that at the time of elicitation of such evidence, signature available in Ex.P.9 as per Ex.P.9(d) was not confronted to D.W.1. Therefore, above stray sentence in the evidence of D.W.1 will not come to the rescue of the plaintiffs to prove that Ex.P.9 contains signature of Theras raj. Thus, in the given circumstances, the facts that are elicited from the mouth of D.W.1 is not sufficient to prove due execution of Ex.P.9.
40. In fact, Sri, GMR advocate appearing on behalf of the plaintiffs has argued that there is no effective cross-examination to P.W.1 and P.W.2. According to him, nothing is suggested to P.W.1 and P.W.2 to the effect that Will at Ex.P.9 is a document concocted by the plaintiff. But, in the absence of such suggestion also, it is for the plaintiffs to prove due execution of the Will. Further, it is argued by the learned counsel for the plaintiffs that Ex.P.9 is of the year 1975 and the same is a anicient 30 O.S.No.1503/2014 document within the meaning of Section 90 of the Evidence Act and the same is produced from proper custody and hence, presumption as provided under Section 90 of the Evidence Act is to be drawn. Since because Ex.P.9 is a Will, it is for the plaintiffs to prove the same in accordance with Section 68 of the evidence Act. No doubt the evidence of P.W.2 would show that she was present at the time of execution of Ex.P.9. But her evidence is very much silent with regard to the fact that she was acquainted with the signature of Theras raj. Furthermore, the plaintiffs have not examined M. Moorthy who has drafted Ex.P.9. In addition to it, though the plaintiffs came to know about Ex.P.9. in the year 2010, they have not applied for change of khatha in their name. In addition to it, both the witnesses to Ex.P.9 are the father and grandmother of the plaintiff No.1. Therefore, it is highly improbable to believe the contention of the plaintiffs that Ex.P.9 is a genuine document. Furthermore, in the given circumstances, the provisions of Section 90 of the Evidence Act are of no application because the mode of proving the Will is altogether different. Therefore on re-appreciation of evidence on record this Court is of the opinion that the plaintiffs have failed to prove due execution of Ex.P.9 by Subramani during his lifetime.
31 O.S.No.1503/2014
41. Further, it is elicited from the mouth of P.W.1 that Subramani has got a brother by name Ramu and he is no more and his Lrs are alive. Further more, Subramani has got a sister by name Sampangiyamma. Lrs of Ramu and Sampangiyamma are not parties to the litigation. Since because the plaintiffs have failed to prove due execution of Ex.P.9, it is for them to establish their title over the suit schedule property as LRs of Subramani. But all the LRs of Subramani are not made as parties. In addition to it, they have not given any authority to the plaintiffs to file the suit for the relief of declaration and possession of the property. In this view of the matter, as the plaintiffs have failed to prove due execution of Ex.P.9 Will, they have failed to prove that they are the absolute owners of the suit schedule property. Accordingly, Issue No.1 is answered in the negative.
42. Issue No.2 :- It is the contention of the plaintiffs that the defendant who is their relative and with this relation, they have let out the suit schedule property to his family on 20.10.2010 for free of cost. However, it is for him to pay monthly maintenance charges at R.500/-. By contending so, the plaintiffs have contended that the defendant is a tenant under them. Whereas, it is the contention of the defendant that 32 O.S.No.1503/2014 Subramani and Sampangiammal were having no issues and therefore they have adopted him. His evidence is that from the age of 4 years, he has been residing in the suit schedule property for the past 48 years. Further according to him, M Subramani had performed Baptism on 03.01.1962 and accordingly baptism certificate is being issued. It is also the contention of the defendant that as he has been residing in the schedule property, ration card, voters list and other documents including school certificate is standing in the name and he is the adopted son of Subramani and Sampangiyamma. In this view of the matter, it is for the plaintiffs to prove that the defendant is a tenant under them and it is for him to pay maintenance charges of Rs.500 per month.
43. As has been stated herein above, first plaintiff is examined as P.W.1 and he has reiterated that the plaintiffs have inducted the defendant's family to the suit schedule property on 20.10.2010. However here in this case the fact remains that the defendant is not blood relative of Subramani who admittedly the owner of the suit schedule of property.
33 O.S.No.1503/2014
44. In fact, it was suggested to P.W.1 to the effect that since defendant is adopted son of Subramani and he has been residing therein from last 50 years. Further, it was suggested to P.W.1 that there is no nexus between the schedule property and the plaintiffs however, they by obtaining document from Kanchana, have filed the false suit to knock off the property from the hands of the defendant, but denied.
45. Here in this case, it is relevant to note that the documents that are produced by the plaintiffs at Ex.P.1 to Ex.P.6 and Exs.P.12 to 14 are appreciated by this Court and has come to the definite conclusion that the suit property originally belonged to Subramani.
46. In order to disprove the contention of the plaintiffs, defendant J. Susainathan alias Williams is examined as D.W.1 and he has deposed that M. Subramani was his adopted father and adoption was taken place on 03.01.1962. In order to substantiate this aspect of the matter, D.W.1 has produced baptism certificates as per Ex.P.1 to Ex.P.3. As per Ex.P.1, Baptism was taken place on 18.07.1954 and god father is shown as M.A. Santiago. Further, Ex.P.2 would show that Baptism had taken place on 07.08.1954 and God father is Robert. Ex.P.3 is the baptism 34 O.S.No.1503/2014 dated 03.01.1962, pertaining to Susaiathan and God father is Antony Swamy. But a meaningful reading of Ex.D.1 to D.3 would show that there is no mention of Subramani being the god father of the defendant performed Baptism. Therefore, Ex.D.1 to D.3 is not sufficient to hold that during his lifetime, more precisely on 03.01.1962, Subramani had adopted the defendant and therefore, the defendant become adopted son of Subramani and Sampangiammal.
47. It is the definite contention of the defendant that since from 1962, he has been residing in the suit schedule property and necessary documents are there to substantiate the same. In fact, Ex.D.6 is the cumulative record issued by Department of Public Education. A perusal of this document would show that Susainathan. J.J has been residing in No. 54, II Main Road, II Stage, Gautampura-Bengaluru. In this document, the name of father is known as Thomas Joseph. If really, subramani had adopted the defendant, in the school records, name of subramani must have been shown as father. But, the contents of Ex.D.6 which is dated 15.12.1961 would show that the defendant has been residing in property No. 54 i.e. the suit schedule of property. 35 O.S.No.1503/2014
48. In addition to the above, the defendant has produced the savings pass book issued by Canara Bank which would show that the defendant has been residing in property number 54, II Main road, II stage Gautam for a Bangalore. This document was issued on 18.08.1986. Therefore, this document is also much prior to the date which the plaintiffs contend that they have inducted the defendant to the suit schedule property. This is because, the plaintiffs have taken the specific contention that they have inducted the defendant to the suit schedule property on 20.10.2010. If this contention of Plaintiff's were to be true, it is for them to show as to how, from 1961 the defendant has been residing in Property No.54. The fact that addresses found in Ex.D.6 and D.7 are pertaining to the suit schedule property is not in dispute.
49. Further, the defendant has produced Canara Bank Passbook at Ex.D.6 and Andhra Bank Passbook at Ex.D.9. Ex.D.8 is dated 18.08.1986 and whereas Ex.D.9 is pertaining to the year 1992. Therefore, these two documents also disclose the fact that much prior to 20.10.2010, the defendant has been residing in the suit schedule property.
36 O.S.No.1503/2014
50. Further, the plaintiff has produced ESI Corporation Identity card as per Ex.D.10 which would show that Victor is the resident of property No.54. Further, the defendant has produced telegram dated 18.01.1991 as per Ex.D.11, which would show that Vimala is the resident of Door No. 52. Further, Ex.D.12 is the death certificate of Sampangiammal and she was died on 07.08.1992. Ex.D.13 is the Cabinet maker's receipt, which would show that Williams, residing in property number 54, had paid a sum of Rs.700. The fact that Williams found in Ex.D.13 is the defendant is not in dispute. In addition to it, Ex.D.15 is the outpatient slip issued by ESI Hospital, Indiranagara-Bangaluru. These documents would show that after the death of Sampangiammal, it is the defendant who had performed their last rites. These document falsify the contention of the plaintiffs tat they have inducted the defendant to the suit schedule property on 20.10.2010.
51. In addition to it, the defendant has produced affidavit sworn by him on 27.05.1995 . This document is also not denied or disputed by the plaintiffs. Discharge report issued by BBMP Maternity Hospital in respect of wife of the defendant. As per this document also as on 28.03.2000, the defendant has been residing in property number 54. 37 O.S.No.1503/2014
52. Further, the defendant has produced passport of his wife as per Ex.D.20. A reading of this document would show that Mala Wife of Susainathan is the resident of Door No. 54. It is not at all the contention of the plaintiffs that the documents relied by the defendant are contracted by him only to make a wrongful gain. Further, the defendant has produced voter's identity card of Malar as per Ex.D.21. This document would also show that the defendant has been residing in Property No. 54 as on 01.01.1994. The defendant has produced a declaration of physical fitness as per ExD2 which would show that as on 08.12.2007, the defendant has been residing in the suit property. Furthermore, the defendant has produced the family records as per ExD4 and ExD.25. These two documents would also demonstatively indicate that As on 08.07.1954, Antony Swami and Shantamal along with the defendant were residing in property number 54. In addition to this, the defendant has produced Ex.D.26 receipt issued by the Employees State Incidents Corporation which would show that Susainathan is the resident of Property No. 54. In addition to it, he has produced Eagle Eye security identity card as per Ex.D.27. Further, he has also produced Aadhar card at Ex.D.31. Thus, on appreciation of these undisputed documents, one thing can be gathered that much prior 38 O.S.No.1503/2014 to 2010, the defendant has been residing in the suit schedule property. Therefore, by producing above referred undisputed documents, the defendant has falsified the contention of the plaintiffs that he is a tenant under them. On the contrary, the documents now produced by the defendant which are not subjected to the process of dispute, would establish that much prior to 20.10. 2010 he has been residing in the suit schedule property. Hence, the defendants have failed to prove that there is relationship of landlord and tenant between them and the defendant. Accordingly Issue No. 2 is answered in the negative.
53. Issue No.3 :- Here in this case, the plaintiffs have contented that they have inducted the defendant to the suit schedule property on 20.10.2010. Whereas it is the contention of the defendant that he has been in settled possession of the suit schedule property from the age of 4 years for last 48 years and Subramanian had performed Baptism on 03.01.1962. This Court has already observed that the documents produced by the defendant would establish the fact that he has been in possession and enjoyment of the suit schedule property from 1962 onwards.
39 O.S.No.1503/2014
54. In this case, the plaintiffs have utterly failed to prove that the defendant is a tenant in respect of the suit schedule property. Further more as contemplated under Section 106 of TP Act, the plaintiffs have not issued any notice calling upon the defendant to quit, vacate and deliver vacant possession of the suit schedule property to them. Here in this case, there is no landlord and tenant relationship by and between the plaintiffs and the defendant. Therefore, termination of tenancy does not arise at all. In other words, this Court is of the opinion that the plaintiffs have failed to prove Legal and valid termination of tenancy. Accordingly, Issue No. 3 is answered in the negative.
55. Issue Nos. 4 to 6 :- Here in this case, the plaintiffs have failed to prove due execution of will at Ex.P.9 by Subramani in their favour. Furthermore, though Ex.P.9 is dated 10.06.1975, till 2010 it has not seen the light of the day. Furthermore, it is the evidence of P.W.1 that they came to know about the Will in the year 2010. However, the present suit is filed in the year 2014. In this view of the matter, since because the plaintiffs have failed to prove due execution of Ex.P.9 and acquisition of their right over the suit schedule property, they are not entitled for declaration of their title and also possession from the hands of the 40 O.S.No.1503/2014 defendant.
56. It is relevant to note that the plaintiffs have taken the contention that they have inducted the defendant and his family to the suit schedule property in the month of October 2010. But the documents which are subjected to discussion makes this Court to feel, believe and hold that since from 1962, the defendant and his family members have been residing in the Suit Schedule property No. 54 of Dommaluru.
57. It is not the contention of the plaintiffs that Subramani had inducted the defendant's family to the suit schedule property and by virtue of Will at Ex.P.9 they are seeking possession. The contention of the plaintiffs as if they have inducted the defendant to the suit schedule property. This contention is falsified by the defendant by producing cogent and convincing piece of evidence. Therefore, landlord and tenant relationship as has been pleaded by the plaintiffs is also not established. Furthermore, it is not the contention of the plaintiffs that on behalf of other members of the family they have filed suit for the relief of declaration and possession of the property. Therefore, on the score also, the suit of the plaintiffs is not maintainable. Since because the plaintiffs 41 O.S.No.1503/2014 are not entitled for the relief of declaration and possession of the suit schedule property, they are not entitled for the relief of permanent injunction. In view of the same, Issue Nos.4 to 6 are answered in the negative.
58. Issue No.7 :- In my findings on Issue Nos.1 to 6, as has been given herein above, I proceed to pass the following :
ORDER The suit of the plaintiffs is dismissed.
Under the circumstances, parties to the suit shall have to bear their own costs.
Draw decree accordingly.
(Dictated to Adalat AI with the assistance of Stenographer Grade-III formatted by her and corrected by me then pronounced by me in the open court on this the 12th day of November 2025.) (Shri. GOPAL KRISHNA RAI. T) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.42 O.S.No.1503/2014
AN N E XU R E Witnesses examined for the plaintiff/s :
P.W.1 - Armstrong P.W.2 - Mrs. A. Paulina Documents marked for the plaintiff/s : Ex.P.1 Notice Ex.P.2 Show-cause notice Ex.P.3 Khatha Extract Ex.P.4 Khatha Certificate Ex.P.5 Receipts Ex.P.6 Encumbrance Certificates Ex.P.7 Death Certificate Ex.P.8 Death Certificate Ex.P.9 Last Will and Testament Ex.P.9(a) to Signatures (d) Exs.P.10 & 11 Death Certificates Ex.P.12 Notice Ex.P.13 Property Tax Receipt Ex.P.14 Notice Witness examined for the defendant/s D.W.1 - J. Susainathan @ Willams 43 O.S.No.1503/2014 Documents marked for the defendant/s : Ex.D.1 Original Register of Baptisms of Antony Swamy dated 18.07.1954 Ex.D.2 Original Register of Baptisms of Shantamma dated 18.07.1954 Ex.D.3 Original Register of Baptisms of Susainatha dated 03.01.1962 Ex.D.4 Original Pension Receipt of Deputy Commissioner Ex.D.5 Original Death Certificate of M.Subramaniyam Ex.D.6 Original Cumulative Record of Susainathan Ex.D.7 Original Bank Pass Book of J. Susainatha from Canara bank Ex.D.8 Original Bank Pass book of J.Susainathan at Canara Bank Savings Bank Account Ex.D.9 Original Bank Pass book of J.Susainatha @William from Andra Bank Ex.D.10 Original ESI Corporation Identity Card of Victor Ex.D.11 Original Telegram from Plaintiff's sister-in-law Ex.D.12 Original Death Certificate of Sampangamma 07.08.1992 Ex.D.13 Receipt Ex.D.14 Receipt Ex.D.15 Out Patient Slip Ex.D.16 Original Bangalore Mahanagar Palaike Tax Receipt 44 O.S.No.1503/2014 Ex.D.17 Original Affidavit Ex.D.18 Original Government Hospital Discharge Receipt Ex.D.19 Original Notice From Bangalore Mahanagar Palike Ex.D.20 Original passport of Defendant's wife Ex.D.21 Original Electoral Identity Card of J.Malar Ex.D.22 Original Application of Physical Fitness of J.Susainathan Ex.D.23 Himbaraha Ex.D.24 Original Family records Ex.D.25 Original Family Record From SS.Peter and Paul's Church Ex.D.26 Original ESIC Identity Card of J.Susainatha Ex.D.27 Original Identity Card of J.Susainathan
Exs.D.28 & 29 Original Tax paid receipt for the years 2016-2017 & 2021-2022 (2No's) Ex.D.30 Notarised copy of Family Ration Card Ex.D.31 Notarised copy of Aadhaar Card of J.Susainathan @ Williams (Shri. GOPAL KRISHNA RAI. T) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.