Bangalore District Court
Vasantha Jagadesh vs Dr. Rajaiah on 3 February, 2026
KABC0A0011952008
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
Dated this the 3rd day of February, 2026.
PRESENT:
Sri BALAPPA APPANNA JARAGU, B.Sc., LL.M.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.25632/2008
PLAINTIFFS : 1. Smt. Vasantha Jagadish,
Aged about 72 years,
Since deceased by Lrs.
1(a). Smt. Suchitra Latha,
Aged about 58 years,
W/o. Sudhakar,
Residing at Old No.3, New No.5,
"Munishwara Nilayam", 19th
Street, Nanganallur,
Chennai - 600 061.
1(b). Smt. Sumithra,
Aged about 56 years,
W/o. Krishna Murthy P.R.,
Residing at No.17, Annai
Theresa Street, Balu Avenue,
Phase - 1, Chitalapakkam
Main Road, Selaiyur,
Chennai - 600 073.
Cont'd..
2 O.S.No.25632/2008
1(c). Smt. J. Padma,
Aged about 54 years,
W/o. Julius Aravind,
Residing at No.17C, Plot - 6,
Sabapathy Street, Narmadha
Nagar, Ullagaram, Chennai-600091.
1(d). Srinivasa Raghavan B.P.J.,
S/o. Late B.P. Jagadish,
Residing at No.17C, Plot - 6,
Sabapathy Street, Narmadha
Nagar, Ullagaram, Chennai-600091.
(By Sri G. Sukumaran, Advocate)
-VERSUS-
DEFENDANTS : 1. Dr. Rajaiah,
Aged about 68 years,
S/o. Late V. Kodandarama,
Residing at No.40, 4th Main Road,
3rd Stage, Rajarajeswari Nagar,
BEML Layout, Bengaluru - 560 098.
2. R. Vijay Krishna,
Aged about 34 years,
S/o. Dr. Rajaiah.
3. Shravan Krishna,
Aged about 8 years,
S/o. R. Vijay Krishna,
Since minor
represented by the defendant No.2
being the father and natural
Guardian.
Defendants No.1 to 3 are resident
of No.40, 4th Main Road, 3rd
Stage, Rajarajeshwari Nagar,
BEML Layout, Bengaluru- 560 098.
4. R. Sadagopan Rajamani,
Aged about 55 years,
S/o. Late Rajamani Jaganathan Iyengar.
5. Smt. Mumtaj Begam @
Rajalakshmi Sadagopan,
Aged about 48 years.
3 O.S.No.25632/2008
6. Smt. Gayathri Thamizharasan,
Aged about 26 years,
W/o. Thamizharasan.
Defendants No.4 to 6 are residing
at No.48, Miller Tank Bund Road,
Bengaluru - 560 052.
7. S. Natarajan,
Aged about 68 years,
S/o. Late Subramania Pillai,
Resident of Sri Krishna Coffee
Works, No.20-A, Andar Main
Road, Kulitalai, Trichy District.
8. Subramanya Bhat,
S/o. Late Narayana Bhat,
Aged about 59 years,
Singapore Garden, Flat No.271,
Gubbalala Gate, Kanakapura
Main Road, Bengaluru - 560 062.
9. N. Kannan,
S/o. Late S. Narayana,
Aged about 57 years,
Resident of Nalaja, C-4, 269,
3rd Main Road, Domlur II Stage,
III Phase, Bengaluru - 560 071.
10. The Senior Manager,
Canara Bank, Cunnigham Road
Branch, Bengaluru - 560 052.
11. The Senior Manager,
Syndicate Bank,
Millers Road Branch,
Bengaluru - 560 052.
12. The Senior Manager,
State Bank of Mysore,
Cunnigham Road Branch,
Bengaluru - 560 052.
(D.1, 2 and 3 by Sri S.G. Bhagavan,D.4 by
Sri H.V. Shyame Gowda, D.5 by Sri G.A.
Srekante Gowda, D.6 by Sri G.R. Mohan,
D.7 to D.9 by Sri A. Venkatareddy, D.10 by
Sri Vijayan N., D.11 by Sri N. Shashi
Bhushan, Advocates) (D12 -Absent)
4 O.S.No.25632/2008
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Date of Institution of the Suit : 09-04-2008.
Nature of the Suit (Suit on : Partition Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
Date of the commencement : 19-10-2019.
of recording of the evidence
Date on which the Judgment : 03-02-2026.
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 17years, -9months, 24days.
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(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
JUDGMENT
This suit is instituted by the plaintiffs against the defendants for relief of partition and separate possession of plaintiffs legitimate half share in suit properties as per Will dated 20.12.2006. Further, plaintiffs sought for declaration to declare that, registered Will dated 27.09.2006 alleged to have been executed by Late. K. Kuppuswamy in favour of defendants No.4 to 6 is null and void, same is not binding on plaintiffs. Plaintiffs sought for consequential 5 O.S.No.25632/2008 relief of permanent injunction, restraining defendants from interfering with plaintiffs' possession of suit schedule properties and restrain them from transferring suit properties in any manner. Further, restrain defendants No.10 to 12 from paying any amount or entering into any transaction with defendants No.4 to 9 in respect of various bank accounts held by late K. Kuppuswamy except original plaintiff and original defendant No.1, who are jointly entitled from defendants No.10 to 12 held under different accounts. Direct the defendant No.1, defendants No.4 to 6 to pay damages by way of mesne profits to plaintiffs from date of suit, till date of delivery of possession of suit 'A' schedule property to plaintiffs.
2. The case of the plaintiff in brief is as under:-
That, original plaintiff, original defendant No.1, late K. Kuppuswamy, Smt. Saraswathi, Smt. Taramurgayyan are children of late N. Kodhandarama Naidu and Smt. Ranganayaki Ammal. Original plaintiff and original defendant No.1 are only survivors of late K. Kuppuswamy. Sri. K. Kuppuswamy was remained 6 O.S.No.25632/2008 unmarried and passed away on 04.03.2007 by bequeathing his movable and immovable properties under Will dated 20.12.2006 in favour of original plaintiff and original defendant No.1 as joint beneficiaries in respect of suit properties. As per terms of Will dated 20.12.2006, original plaintiff and original defendant No.1 are entitled to equal shares in suit properties. After death of K. Kuppuswamy. Original plaintiff and original defendant No.1 become absolute owners of suit properties. The defendants No.1, 4 to 6 are in joint occupation of suit 'A' schedule properties. Defendant No.1 is father of defendant No.2 and grandfather of defendant No.3. Defendant No.5 wife and defendant No.6 is daughter of defendant No.4. Defendants No.7 to 9 are friends of defendants No.4 and
5. The defendants No.4 to 9 have jointly and fraudulently created Will dated 27.09.2006 in favour of defendants No.4 to 6. The defendant No.4 was caretaker of K. Kuppuswamy. Defendants No.4 and 5 being couple having been enjoyed as caretaker during lifetime of K. Kuppuswamy and knowing all position of property of deceased cunningly and systematically created 7 O.S.No.25632/2008 alleged Will dated 27.09.2006. These defendants have suppressed real and true Will dated 20.12.2006 left behind by K. Kuppuswamy in order to knock of entire suit properties of deceased. In the month of January 2008 elders have interfered for amicable settlement at that time, defendants No.4 to 9 have proclaimed that, defendants No.4 to 6 are only entitled for suit properties, based on sham and created document which is Will dated 27.09.2006. Will dated 27.09.2006 has been caused by cause and coercion. On these pleadings, the plaintiffs have prayed to decree suit as prayed in plaint.
3. In response to the service of suit summons, the defendants No.1 to 111 have tendered their appearance before the court through their respective counsels and contested the case and filed written statement. Even after service of summons, defendant No.12 has not tendered his appearance before court through his counsel and contested suit, consequently he was absent.
4. The contents of written statement of defendant No.4 in brief are as under:-
8 O.S.No.25632/2008
That, suit of the plaintiffs is not maintainable either in law or on facts. It is admitted that, original plaintiff and defendant No.1 and late K. Kuppuswamy are children of Kodhandarama Naidu. It is also admitted, K. Kuppuswamy died on 04.03.2007 as bachelor. It is denied that, K. Kuppuswamy executed his last Will dated 20.12.2006 in favour of original plaintiff and original defendant No.1 and bequeathed suit properties. It is specifically contended that, Will dated 27.09.2006 is registered Will executed by K. Kuppuswamy while he was in a sound and disposing state of mental and bodily health. Defendant No.5 had been taken into household of K. Kuppuswamy as his caretaker. Will dated 20.12.2006 is concocted and same is handiwork of both original plaintiff and original defendant No.1. There was no need or necessity for K. Kuppuswamy to disown registered Will dated 27.09.2006 executed by him. Will dated 27.09.2006 is last Will of K. Kuppuswamy. Attempt made by plaintiff to over come said registered Will with help of another created document dated 20.12.2006. Defendants No.1 9 O.S.No.25632/2008 to 3 did everything to displease deceased K. Kuppuswamy. Soon after death of K. Kuppuswamy, they started unholy litigation. Suit is bad for non-
joinder of parties. Plaintiffs have not paid proper court fees. On these grounds, defendant No.4 has requested to dismiss the suit filed by plaintiff.
5. The contents of written statement of defendants No.5 in brief are as under:-
That, the suit of the plaintiff is not maintainable either in law or on facts. Suit filed by plaintiffs on the basis of alleged Will dated 20.12.2006 said to have been executed by K. Kuppuswamy is not maintainable. Plaintiff deliberately described name of defendant No.5 as Smt. Mumtaj Begum @ Rajalakshmi Sadagopan. Though she has no such alias name. It is denied, original plaintiff and original defendant No.1 are only surviving members of K. Kuppuswamy. It is further denied, K. Kuppuswamy executed Will dated 20.12.2006 and thereby bequeathed all his movable and immovable properties in favour of original plaintiff and original defendant No.1. Alleged Will relied by plaintiffs is fraudulent one concocted by original 10 O.S.No.25632/2008 plaintiff and defendant No.1 only to grab suit properties which belongs to K.K. Foundation Trust and defendants No.5 and 6 and Chamundeshwari Studio. The defendants No.4 to 6, K.K. Foundation Public Charitable Trust and Chamundeshwari Studio are in possession and enjoyment of properties as per terms of registered Will dated 27.09.2006 executed by Late K. Kuppuswamy. Defendants No.7 to 9 are executors appointed by Late K.Kuppuswamy under Will to execute terms and conditions of Will dated 27.09.2006.
Defendant No.4 is nephew of Late K. Kuppuswamy. Will dated 27.09.2009 executed by Late K. Kuppuswamy while he was in sound and disposing state of mind. There is no such Will dated 20.12.2006 alleged to have been executed by Late K. Kuppuswamy. Signatures found on alleged Will varies from page to page both in style, size and pattern. Signatures on alleged Will are forged. After death of K. Kuppuswamy, defendant No.1 filed number of complaints before various authorities and series of cases before civil court, company board making false allegation and false claim. The plaintiff has no right or interest in suit properties. 11 O.S.No.25632/2008 There is no cause of action for the plaintiff to file present suit. Plaintiff has not paid proper court fees. On these grounds, defendant No.5 has requested to dismiss the suit filed by plaintiff.
6. The contents of written statement of defendants No.6 in brief are as under:-
That, the suit of the plaintiff is not maintainable either in law or on facts. Plaintiff not entitled for any relief as claimed in plaint. Present suit filed by plaintiff is after thought and in collusion with defendant No.1. Defendant No.1 after death of K. Kuppuswamy had filed various suit against defendants No.4 to 12. It is denied, Late K. Kuppuswamy executed Will dated 20.12.2006 and thereby bequeathed suit properties in favour of plaintiff and defendant No.1. Alleged Will is forged and concocted document. In terms of registered Will dated 27.09.2006 through executors of Will, this defendant has been allotted portion of immovable property bequeathed to her under Will. There is no cause of action for the plaintiff to file present suit. On these 12 O.S.No.25632/2008 grounds, defendant No.6 has requested to dismiss the suit filed by plaintiff.
7. The contents of written statement of defendants No.7 to 9 in brief are as under:-
That, the suit of the plaintiff is not maintainable either in law or on facts. It is admitted K. Kuppuswamy passed away on 04.03.2007. It is denied K. Kuppuswamy executed Will dated 20.12.2006 in favour of plaintiff and defendant No.1. Will dated 27.09.2006 is registered Will. Under specific terms of said Will, defendants No.7 to 9 have been appointed as executors. So far no judicial order against these defendants from performing their duties as executors of Will. By reading of plaint, it is clear that, plaintiff has forged a document calling it as Will and thereby calling in question legal acts and valid documents executed by K. Kuppuswamy. On these grounds, defendant No.7 to 9 has requested to dismiss the suit filed by plaintiff.
8. The contents of written statement of defendants No.10 in brief are as under:-
That, the suit of the plaintiff is not maintainable either in law or on facts. There is no cause of action for 13 O.S.No.25632/2008 the plaintiff to file suit against this defendant. Suit of the plaintiff is barred by law of limitation. Plaintiff is not entitled for relief claimed in the plaint. K. Kuppuswamy during his life time has submitted nomination form in respect of his accounts maintained in bank of this defendant. Except those accounts as mentioned in present written statement, there are no accounts of K. Kuppuswamy with this defendant. On these grounds, defendant No.10 has requested to dismiss the suit filed by plaintiff.
9. On the basis of above pleadings of both parties, this court has framed the following :-
ISSUES
1. Whether the plaintiff proves that late Kuppuswamy executed a Will on 20.12.2006 bequeathing his immovable and movable property in favour of plaintiff and defendant No.1, after his death, plaintiff is entitle for his share in the suit properties?
2. Whether the plaintiff entitled for 1/2th share?14 O.S.No.25632/2008
3. Whether the plaintiff proves that Will dated 27.09.2006 is null and void not binding on plaintiff?
4. Whether the plaintiff is entitle for mense profits?
5. Whether suit is hit by non-joinder of necessary parties?
6. Whether suit is valued property and CF paid is sufficient?
7. Whether the defendant No.4 proves that late Kuppuswamy executed a Will on 27.09.2006 bequeathing the suit properties in favour of defendants No.4 to 6, by creating a trust who became the absolute owner of the suit properties?
8. What order or decree?
10. To substantiate the case of the plaintiffs, the plaintiff No.1(d) examined himself as PW1 and two attesting witnesses as P.W.2 and P.W.3 and produced in 15 documents as Exs.P1 to Ex.P.15. The defendant No.4 examined himself as D.W.1 and produced in 5 documents as Exs.D.1 to D.5.
15 O.S.No.25632/2008
11. I have heard the arguments of learned counsel for plaintiff and learned counsel for defendants and I have perused the case records.
12. My answers to the above issues are as under-
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 affirmative;
ISSUE No.6 - In the affirmative;
ISSUE No.7 - In the affirmative;
ISSUE No.8 - As per final order, for the following -
REASONS
13. ISSUES No.1, 2 AND 7 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid repetition of facts and for convenience sake, both issues are taken together for common discussion.
14. On proper perusal and careful appreciation of pleadings as well as evidence of parties on record, the 16 O.S.No.25632/2008 real dispute between original plaintiff, original defendant No.1 and defendants No.4 to 6 is about their respective claim in respect of suit schedule properties which were owned and possessed by late K. Kuppuswamy. There is rival claim between original plaintiff, original defendant No.1 and defendants No.4 to 6 in respect of properties held by deceased K.Kuppuswamy based of Will relied by them.
15. It is claim of original plaintiff that, herself and original defendant No.1 being sister and brother of late K. Kuppuswamy, they are legatee/ beneficiaries under Will dated 20.12.2006 said to have been executed by K. Kuppuswamy in their favour. Accordingly they claimed that, they are entitled for ½ share each in suit schedule mentioned properties. On the other hand, contesting defendants No.4 to 6 have claimed or asserted their right over suit schedule properties as legatees under earlier registered Will dated 27.09.2006.
16. In the light of above dispute between parties, when there are two Will in respect of suit schedule properties said to have been executed by K. 17 O.S.No.25632/2008 Kuppuswamy, in present suit, it has to be decided by the court which of two Will relied by parties is true and genuine one. Further original plaintiff or present plaintiffs being able to prove Will 20.12.2006 as required under mandatory provisions of relevant law can claim right or interest in suit schedule properties.
17. Before adverting attention to disputed Will relied by respective rival parties, it is better to first consider admitted facts between parties. It is not in dispute between parties that, original plaintiff and original defendant No.1 are sister and brother of late K. Kuppuswamy. It is also not in dispute between parties that, K. Kuppuswamy was bachelor and he died on 04.03.2007. It is further not in dispute that, properties shown in schedule to plaint are self acquired properties of K. Kuppuswamy.
18. In plaint, as well as in examination of chief of P.W.1, it is specifically alleged against defendants that, these defendants No.4 to 9 have jointly concocted and created alleged Will dated 27.09.2006. In para -13 of plaint, it is pleaded that, defendant No.4 was caretaker 18 O.S.No.25632/2008 of deceased K. Kuppuswamy and accordingly defendants No.4 and 5 being couple have been employed as caretaker during lifetime of deceased K. Kuppuswamy, defendants No.4 and 5 have taken undue advantage of situation, cunningly as well as systematically concocted documents in their names alleging to be beneficiaries of properties held by K. Kuppuswamy.
19. It is further pleaded by plaintiff that, said concocted and fraudulent Will created by suppressing real and true Will dated 20.12.2006 which was executed by K. Kuppuswamy. It further specifically pleaded by plaintiffs that, these defendants with active support of defendants No.7 to 9 have created alleged Will.
20. Taking into note of aforesaid facts pertaining to respective claim of plaintiffs as well claim of defendants No.4 to 6, plaintiffs have to prove due execution of Will dated 20.12.2006 and satisfy conscience of court to accept it as true and genuine one and same is prevailing over earlier registered Will dated 27.09.2006 relied by defendants No.4 to 6. 19 O.S.No.25632/2008
21. It is pertinent to note here that, to prove due execution of Will dated 20.12.2006, plaintiff has produced same before court as per Ex.P.2. P.W.2 by name G. Venkatesan S/o. Late Sri G. Govindan and P.W.3 by name K.P. Kumara Pandian S/o. Late Sri Pachiyappan who are attesting witnesses to Ex.P.2 have been examined before court to prove due execution of Ex.P.2-Will executed by late K. Kuppuswamy in favour of original plaintiff and original defendant No.1. The P.W.2 and P.W.3 in their examination-in-chief have deposed, K. Kuppuswamy made request and in their presence executed Will dated 20.12.2006 and they are attesting witnesses to said Will.
22. Based on evidence of P.W.2 and P.W.3, it is argued on behalf of learned counsel for plaintiff that, Will as per Ex.P.2 executed by K. Kuppuswamy in favour of original plaintiff and original defendant No.1 has been duly proved by examining P.W.2 and P.W3 who are attesting witnesses to Will. Further it is argued on behalf of plaintiff that, any Will existed canceled by Ex.P.2 and latest Will prevail over alleged earlier Will relied by defendants No. 4 to 6.
20 O.S.No.25632/2008
23. The learned counsel for plaintiffs in support of his arguments has relied upon decision of Hon'ble Supreme Court reported in Civil Appeal No.3351/2014 in case of Meena Pradhan and Others Vs. Kamla Pradhan and another, wherein it is held that, i. The court has to consider two aspects:
firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;21 O.S.No.25632/2008
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator; vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
22 O.S.No.25632/2008viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier. ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence etcetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind' 1. Whether a 23 O.S.No.25632/2008 particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
24. The learned counsel for plaintiffs has further relied upon the decision of Hon'ble Supreme Court reported in Civil Appeal No.7576/2023 in case of Leela and Others Vs. Muruganantham and others, wherein it is held that, the Trial Court rightly held that the propounder of the Will has to establish by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound disposing state of mind and that he understood the nature and effect of the dispositions and put his signature out of his own free will.
25. The learned counsel for plaintiffs has further relied upon the decision of Hon'ble Supreme Court reported in AIR 1959 SCC 443 in case of 24 O.S.No.25632/2008 Venkatachala Iyengar Vs. B.N. Thimmajamma and others, wherein it is held that, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the documents propounded is proved to be the law Will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will.
26. The learned counsel for plaintiffs has further relied upon the decision of Hon'ble Supreme Court 25 O.S.No.25632/2008 reported in (1977) 1 SCC 369 in case of Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, wherein it is held that, in cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally, is an adversary proceeding becomes in such cases a matter of the court's conscience. Then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.
27. The learned counsel for plaintiffs has further relied upon the decision of Hon'ble Supreme Court reported in AIR 1962 SC 567 in case of Rani Purnima Debi and another Vs. V. Kumar Khagendra Narayan deb and Another wherein it is held that, testator in habit of signing blank papers signature of testator not in same ink and not with same pen with 26 O.S.No.25632/2008 which body of Will was written. Held propounder was required to satisfactorily explain suspicious circumstances before the could get letters of administration- witnesses examined in court being interested - evidence given by them not sufficient to dispel suspicion as to due execution and attestation of Will.
28. The learned counsel for plaintiffs has further relied upon the decision of Hon'ble Supreme Court reported in (2012) SCC 387 in case of Mahesh Kumar (dead) by Lrs Vs. Vinod Kumar and Others, wherein it is held, Once execution of subsequent Will is proved former will is automatically rendered redundant. Hence, no categorical recital regarding cancellation of the former will is needed in subsequent Will.
29. The learned counsel for plaintiff has further relied upon the decision of Hon'ble Supreme Court (2005) 1 SCC 280 in case of Meenakshiammal (dead) through LR's Vs. Chandrasekaran and another, wherein it is held that, in absence of suspicious circumstances surrounding the execution of Will, proof 27 O.S.No.25632/2008 of (a) testamentary capacity, and (b) signature of testator, as required by law, sufficient to discharge the onus. In presence of suspicious circumstances, however, onus is on propounder to explain said circumstances to satisfaction of court before it accepts will as genuine, suspicion must be such as is inherent in transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on investigation of transaction.
30. The learned counsel for plaintiffs has further relied upon the decision of (2021) 11 SCC 277 in case of Shivakumar and Others VS. Sharanabasappa and Others, wherein it is held that, the Will being a solemn document that comes into operation after the death of the testator, special provisions are made in the statutes for making of a Will and for its proof in court of law. The elaborate provisions made for construction of wills further make the intention of the legislature clear that any irrelevant mis-description or error is not to operate against the will and the approach is to give effect to will once it is found to have been executed in 28 O.S.No.25632/2008 the sound state of mind by the testator while exercising his own free will. However, when the will is surrounded by suspicious circumstances, the court would expect the legitimate suspicion be removed before the document in question is accepted as the last Will of the testator.
31. The learned counsel for plaintiffs has further relied upon the decision of (2014) 15 SCC 570 in case of Leela Rajagopal and others Vs. Kamala Menon Cocharan and Others, wherein it is held that, A Will may have certain features and may have been executed in certain circumstance which may appear to be somewhat unnatural. Such unusual features appearing in a Will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the court on the basis of such scrutiny the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious 29 O.S.No.25632/2008 circumstance put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration.
32. On the other hand learned counsel for the defendants No. 4 to 6 has vehemently argued that, plaintiffs have to prove their case of Will positively as required under relevant laws by removing all suspicious circumstances attached to its due execution and thereby satisfy conscious of court to accept alleged Will as true and genuine one.
33. It is further argued by learned counsel for defendants that, mere weakness in case of defendant or weakness in defence set up by defendants itself not to say plaintiffs have proved their case. The learned counsel for defendants No.4 to 6 in support of his argument has relied upon the decision of Hon'ble Supreme Court 1958 SCC Online SC31 in case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, wherein it is held that, Section 68 deals with the proof of the execution of the document required 30 O.S.No.25632/2008 bylaw 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 requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Section 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these 31 O.S.No.25632/2008 provisions. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will.
34. The learned counsel for defendants has further relied upon the decision of Hon'ble Supreme Court reported in (2011) 12 SCC 220, in case of Rangammal Vs. Kuppuswami and another, wherein it is held that, onus is on the plaintiff to positively 32 O.S.No.25632/2008 establish its case on the basis of the material available and it cannot rely on the weakness or absence of defence to discharge the onus.
35. The learned counsel for defendants has relied upon the decision of Hon'ble Supreme Court reported in (2010) 2 SCC 114 in case of Dalip Singh Vs. Sate of Uttar Pradesh and Others, wherein it is held that, for many centuries, Indian society cherished two basic values of life i.e., `Satya' (truth) and `Ahimsa' (non- violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre- independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over- shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court 33 O.S.No.25632/2008 proceedings. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
36. The learned counsel for defendants No.4 to 6 has also relied upon the decision of Hon'ble Supreme Court reported in 2004 SAR (Civil)1 in case of Ram Chandra Singh Vs. Savitri Devi and Others, wherein it is held that, Fraud on the court- vitiates every solemn act. Fraud and justice never dwells together. It is also well settled that, misrepresentation itself amounts to fraud. An act of fraud on court is always viewed seriously.
37. In the light of principles laid down in case of Mahesh Kumar, once plaintiffs able to prove execution 34 O.S.No.25632/2008 of subsequent Will former will is automatically rendered redundant. It is pertinent to note here that, original plaintiff and original defendant No.1 cannot claim they are unaware about earlier registered Will dated 27.09.2006 said to have been executed by K. Kuppuswamy in favour of defendants No.4 to 6 because they are parties earlier suit in O.S.No.25413/2008 filed by original defendant No.1 seeking letter of administration in respect of entire suit schedule properties.
38. The plaintiff No.1(d), who examined as P.W.1 in his evidence before court has deposed that, defendants No.4 to 9 have jointly concocted document fraudulently alleged to have been executed Will dated 27.09.2006 in favour of defendants No.4 to 6 and defendants No.7 to 9 claimed as executor appointed under alleged Will.
39. It is worth to note here that, P.W.1 in his cross-examination has clearly deposed, he is aware about registered Will dated 27.09.2006. It is clearly and categorically admitted by P.W.1 in his cross- 35 O.S.No.25632/2008 examination that, original plaintiff is party to O.S.No.25413/2008 filed by original defendant No.1 seeking letter of administration in respect of entire suit schedule properties.
40. The contesting defendants have specifically contended, there was no necessity for K. Kuppuswamy to disown a registered Will dated 27.09.2006 executed by him. Certified copy of judgment in O.S.No.25413/2008 has been produced by defendants as per Ex.D.3. On careful perusal of cause title of judgment, it is very much clear that, said suit seeking for preliminary decree for administration entire estate of deceased K. Kuppuswamy and consequential relief of permanent injunction and mandatory injunction filed by original defendant No.1 herein Dr. Rajaiah. In said suit, original plaintiff herein was arrayed as defendant No.10 therein.
41. It is evident from evidence of P.W.1 and contents of Ex.D.3 that, original plaintiff and original defendant No.1 herein were parties to earlier suit in O.S.No.25413/2008. Present defendants No.4 to 6 36 O.S.No.25632/2008 herein in earlier suit being contesting defendants have specifically contended, late K. Kuppuswamy during his lifetime when he was sound state of mind on his own volition, he executed a registered Will dated 27.09.2006 and said Will is genuine one.
42. It is evident from judgment passed in earlier suit filed by original defendant No.1 as per Ex.D.3 that, said suit filed by original defendant No.1 was dismissed. It is fact that, as defendants No.4 to 6 therein, who are defendants No. 4 to 6 herein have set up their specific contention with regard to registered Will dated 27.09.2006 in their written statement. Consequently specific issue in said suit framed "Whether defendants No.4 to 9 prove execution of genuineness of the Will dated 27.09.2006 executed by K. Kuppuswamy?
43. It is evident from findings recorded in Ex.D3 judgment by court that, said additional issue has been answered in affirmative. It is fact that, the court in earlier suit after having given findings that, registered Will dated 27.09.2006 has been proved thereby declined to issue Letter of Administration in favour of plaintiff 37 O.S.No.25632/2008 therein, who is original defendant No.1 herein in respect of suit properties is held by K. Kuppuswamy.
44. The learned counsel for plaintiffs herein has vehemently argued that, no notice to beneficiaries by executor of Will dated 27.09.2006 issued and same is sham document. Further, it is argued that, who are the defendants No.4 to 6 to contest or question Ex.P.2 Will executed by K. Kuppuswamy. It is also argued that, Will dated 27.09.2006 not upheld by any court of law. There is no probate in respect of alleged Will relied by defendants No.4 to 6 it is not genuine Will.
45. The learned counsel for the plaintiffs in support of argument has relied upon decision of Hon'ble Supreme Court reported in 2008 (4) KCCR SN 313 in case of Krishna Kumar Birla V/s Rajendra Singh Lodha and Others, wherein it was held that, questions relating to construction of Will or title relating to right, title and interest of any person is beyond the scope of probate court.
46. As already discussed, admittedly suit in O.S.No.25413/2008 filed by original defendant No.1 38 O.S.No.25632/2008 herein against present defendants No.4 to 6 and others claiming letter of administration i.e Testamentary Suit in respect of properties left behind by K. Kuppuswamy. The court while deciding said suit filed by defendant No.1 herein has come to conclusion defendants No.4 to 9 therein have proved due execution of registered Will dated 27.09.2006 executed by K. Kuppuswamy in favour of defendants No.4 to 6 and thereby proceed to dismissed suit by defendant No.1 herein. Under such circumstances, plaintiffs herein are estopped from contending Will dated 27.09.2006 not uphold by any court of law and no probate was sought by executor or beneficiaries under said Will.
47. As already discussed, it is fact that, in earlier proceedings court in its decision as per Ex.D.3 having come to conclusion about due execution of Will dated 27.09.2006 proceeded to dismiss suit filed by original defendant No.1. Admittedly, earlier suit filed by defendant No.1 is in respect of letter of administration. Such being the facts, the judgment on letter of 39 O.S.No.25632/2008 administration/probate proceedings operate as a judgment in rem and is conclusive in subsequent suits.
48. The findings recorded in earlier suit as per Ex.D.3 indicates that, proceeding seeking letter of administration by defendant No.1 dismissed because Will dated 27.09.2006 proved by defendants. As such it is legal position that, K. Kuppuswamy while he was alive executed Will dated 27.09.2006 and same is proved in accordance with law.
49. It is material to note here that, when court in Testamentary Suit, which was filed seeking Letter of Administration by defendant No.1 and original plaintiff was also party to said suit, in said suit court explicitly held that, Will relied by defendants No.4 to 6 proved as genuine and valid said findings bindings on parties in present subsequent suit because parties in present subsequent suit are same as in suit in Letter of Administration. Findings in respect of Will in earlier proceedings binding on them.
50. Fact to be noted here, plaintiff herein being party to earlier suit has not contested said suit. It is 40 O.S.No.25632/2008 also fact that, either plaintiff herein or original defendant No.1 have not challenged judgment and decree passed in earlier suit in O.S.No.25413/2008. It is not case of either original plaintiff or original defendant No.1 that, in such appeal filed challenging judgment and decree in O.S.No.25413/2008 Hon'ble Appellant court reversed the findings recorded by court in said suit thereby observed Will dated 27.09.2006 relied by defendants No.4 to 6 not proved in accordance with law and same is not genuine one.
51. Unless and until judgment in O.S.No25413/2008 is set aside by Hon'ble Appellant Court, findings recorded on issue with regard to Will, wherein it is held Will dated 27.09.2006 relied by defendants No.4 to 6 herein is genuine is definitely binding on plaintiff, defendant No.1 as well as against whole world. As such, contention of plaintiff that, no probate obtained in respect of Will dated 27.09.2006 by executor appointed under Will and beneficiaries is not sustainable. In earlier proceedings itself by considering due execution of Will dated 27.09.2006, court has 41 O.S.No.25632/2008 proceeded to dismiss claim of Letter of Administration by defendant No.1 in respect of entire estate held by K. Kuppuswamy.
52. It is true, as contended by learned counsel for plaintiffs that, P.W.2 and P.W.3 claiming to be attesting witnesses to Will as per Ex.P.2 before court deposed about execution of Will by late K. Kuppuswamy. It is well settled law as per principles laid down in above decisions relied by both side counsels that, evidence of P.W.2 and P.W.3 must inspire confidence of the court so as to accept Will as per Ex.P.2 is true and genuine one. Further the propounder of Will has to remove all suspicious circumstance attached to due execution of Will.
53. Now, coming to evidence of P.W.2-G. Venkateshan in his cross-examination he has deposed, he is retired Government Servant and he served as Deputy Collector. It is further say of P.W.2 that, it is Srinivasan P.W.1 requested him to come and deposed before court. It is specifically stated by P.W.2 that, he did not know said Srinivasan is plaintiff in present case. 42 O.S.No.25632/2008
54. The P.W.2 in his further cross-examination has deposed, he knows K. Kuppuswamy. He did not know original plaintiff is sister of K. Kuppuswamy and original defendant No.1 is brother of said K. Kuppuswamy. It is specific say of P.W.2 that, he come in contact with K. Kuppuswamy in early 1990's through late Sudhakar. It is specifically deposed by P.W.2 that, he visited Chamudeshwari Film Studio 4 to 5 times. Witness not able to say which are other properties adjacent to Chamudeshwari Film Studio.
55. The P.W.2 further deposed, when Will executed by testator it was working day. He come to Bengaluru from Chennai by applying leave. It is further deposed by P.W.2 that on that day, he himself and Kumar Pandiyan- P.W.3 come to Bengaluru from Chennai. It is specifically deposed by P.W.2 that, he has not participated in any of functions organized by late K. Kuppuswamy.
56. The P.W.3 K. Kumar Pandiyan in his evidence has deposed, it is the P.W.2 - G. Venkateshan asked him to come to court and give evidence. It is specific say 43 O.S.No.25632/2008 of P.W.3 that, at the time of preparation of his examination-in-chief by way of affidavit, the plaintiffs gave Will to him, then he come to know about date of its execution of Will. This witness has also stated, he did not know history of K. Kuppuswamy and he did not know parents of K. Kuppuswamy, his brothers and sisters.
57. The P.W.3 has deposed, on so many occasions and in functions he met K. Kuppuswamy. The P.W.3 who is claiming on many occasions and in functions he met K. Kuppuswamy but he is not able to say original plaintiff and original defendant No.1 are siblings of K. Kuppuswamy.
58. The P.W.3 having claimed he knows K. Kuppuswamy since 1990's and having met K. Kuppuswamy in so many functions, he was not able to say K. Kuppuswamy was running Film Studio as well as K.K. Trust. Contrary to his earlier statement, P.W.3 in his further cross-examination has deposed, he has not participated in any functions organized by K. Kuppuswamy during his lifetime.
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59. The P.W.2 has deposed in his cross-
examination on that day around 10.00 to 10.30 a.m., he reached house of K. Kuppuswamy. On that day, he himself K. Kuppuswamy and Kumara Pandiyan were present at the time of execution of Will. The P.W.2 has specifically stated, at that time someone was present in the house of K. Kuppuswamy. Contrary to evidence of P.W.2, the P.W.3 has deposed, he come with Venkateshan to the house of K. Kuppuswamy. He singed Will in the afternoon in between 12.00 to 12.30 p.m., Further contrary to evidence of P.W.2, the witness has further deposed, at the time of execution of Will K. Kuppuswamy alone was in house. It is specific say of P.W.3 that, when he went to the house of K. Kuppuswamy these defendants No.4 to 6 and two nurses were not there.
60. It is pertinent to note here that, the P.W.3 has deposed, Will as per Ex.P.2 was written on stamp paper. He cannot say, face value of stamp paper. On careful perusal of Ex.P.2 it is not prepared on stamp paper as stated by P.W.3. On the other hand, it is prepared on white paper.
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61. As already discussed, P.W.3 has deposed at the time of preparation of his examination-in-chief plaintiffs gave Will to him. At least P.W.3 having seen Will at the time of preparation of his examination-in- chief, he might be in position to say whether it was written on stamp paper or not. Herein the case, P.W.3 contrary to very Ex.P.2 wherein was prepared on blank paper, he has deposed, it is prepared on stamp paper. The P.W.2 not in position to say, whether Will was prepared on bond paper or white paper. The P.W.2 has deposed, he do not remember whether it was typed in bond paper or white paper.
62. The P.W.3 has deposed, he did not know, who prepared Ex.P.2 and where it was prepared. On careful perusal of Ex.P.2, name of scribe of document not mentioned and there is no signature of scribe of document to Will. The P.W.2 in his cross-examination has specifically stated, he gone through the contents of Will. It is specific say of P.W.2 that, in said Will names of Sadagopan and Smt. Rajalakshmi not mentioned.
63. On careful perusal of contents of Ex.P.2, the names of defendants No.4 and 5 who are Sadagopan 46 O.S.No.25632/2008 and Smt Rajalakshmi mentioned in said document and there is specific allegation against them that, they are capable of creating any kinds of fabricated document. The P.W.3 is also not in position to say, whether Ex.P.2 is registered document or not.
64. It is worth to note here that, it is not in dispute that, since 1969 K. Kuppuswamy resided in Bengaluru and started Chamudeshwari Film Studio. The P.W.2 and P.W.3 are claiming, they come in contact with K. Kuppuswamy in early 1990's and they have attended so many functions organized by K. Kuppuswamy. These witnesses have not produced any material to show, they have close intimacy with K. Kuppuswamy and they have attended any of functions arranged by K. Kuppuswamy. There is contradiction in evidence of P.W.2 and P.W.3 in respect of whether Will as per Ex.P.2 prepared on stamp paper or it preferred on white paper, whether it is registered or not. Further there is contradiction in evidence of P.W.2 and P.W.3 with regard to time of execution of Will by K. Kuppuswamy. Further there is also contradiction in evidence of these witnesses whether any persons in the 47 O.S.No.25632/2008 house of K. Kuppuswamy at the time of alleged execution of Ex.P.2 were present or not. These witnesses who are claiming since 1990's they are aware about K. Kuppuswamy, they are not in position to say, who are all family members of K. Kuppuswamy and who are persons taking care of him.
65. Further it is to be noted here, it is not case of plaintiffs or it is say of P.W.2 and P.W.3 that, just before execution of Will Ex.P.2 late K. Kuppuswamy shifted to Bengaluru and he do not know anybody in Bengaluru who are very close to him as such he called P.W.2 and P.W.3 from Chennai as witnesses to Ex.P.2. On the other hand, as admitted by P.W.1 himself, K. Kuppuswamy shifted to Bengaluru in 1969 itself and he started Chamudeshwari Film Studio. Under these circumstances, say of P.W.2 and P.W.3 that, K. Kuppuswamy called them from Chennai to sign Ex.P.2/ Will as witnesses itself creates doubt with regard to said Will.
66. In view of above made discussion an evidence of P.W.2 and P.W.3 does not inspire confidence of court 48 O.S.No.25632/2008 to accept Will as per Ex.P.2 as genuine document, which said to have been executed by K. Kuppuswamy by canceling earlier Will as per Ex.D.2.
67. Further, non producing of Will in earlier proceedings or while filing complaint against defendants No.4 to 6 by late defendant No.1 as well as not making any efforts to get properties under Will either by original plaintiff or original defendant No.1 itself create doubt with regard to due execution of Will as per Ex.P.2. If really Will as per Ex.P.2 is genuine one, in all probabilities it would have produced in earlier proceedings initiated by defendant No.1.
68. The P.W.1 in his cross-examination has deposed that, it is the defendant No.1, who furnished Will and REC bonds to original plaintiff. Further it is admitted by P.W.1 that, original defendant No.1 had filed nearly 8 to 10 suits against defendants No.4 to 6 in respect of properties left behind by K. Kuppuswamy. Under these circumstances, inference can be drawn that, original defendant No.1 having lost all suits filed against defendants No.4 to 6 and his complaint filed 49 O.S.No.25632/2008 against them not entertained and ended in filing 'B' final report, defendant No.1 created Ex.P.2 Will and got filed suit through original plaintiff.
69. In view of aforesaid facts, when original plaintiff was party to earlier suit filed by defendant No.1 and it is inferred she filed suit at behest of original defendant No.1 in present subsequent suit plaintiffs cannot be permitted to contend Will relied by defendant No. 4 to 6 is invalid after failing to same in earlier proceedings. Having had regards to these peculiar facts and circumstance of case on hand, no circumstances made out to examine witnesses to Will by contesting defendants.
70. Now coming to whether plaintiffs able to remove all suspicious circumstances attached to due execution of Will as per Ex.P.2 or not to be looked into. It is pertinent note here that, there is no details either in pleadings or in evidence of P.W.1 in whose custody said Will, till it was produced before the court. As per order dated 13.02.2012 it is clear that, original Will not produced before the court from date of filing of suit, till date of said order.
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71. The P.W.1 in his cross-examination dated 24.03.2025 has specifically stated, now he is seeing Ex.P.2-Will first time. The P.W.1 has claimed his ignorance about, only after direction issued by Court said document has been produced before the court. As per office note dated 24.06.2013, it is forthcoming original Will produced before court and kept in safe custody. It means to say, original Will as per Ex.P.2 not produced along with plaint and in the year 2013 which is after five years from date of filing suit it was produced before court.
72. Further it is to be noted here, as already discussed name of scribe not mentioned in Ex.P.2-Will. Further, in para-3 of Ex.P.2, it is mentioned, Sri N. Kothandarama Naidu and Smt. Ranganayaki Ammal got two sons and three daughters. Said fact as mentioned in Ex.P.2 is against true facts. The P.W.1 in his cross- examination has deposed, Smt. Vasantha Jagadish, Smt. Susheela, Smt. Saraswathi and Smt. Taramurgayyan are daughters and K. Kuppuswamy and Rajaiah are sons of N. Kothandarama Naidu mand Smt. Ranganayaki Ammal.
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73. As already discussed, P.W.1 has stated Will and Bonds have been furnished by original defendant No.1. If really, Will as per Ex.P.2 was genuine and it was existed and original defendant No.1 had possession of same, it would have been produced by defendant No.1 in earlier suit as per Ex.D.3 or in other suits filed by him against defendants No. 4 to 6.
74. It is not case of plaintiff and same is stated by P.W.2 and P.W.3 that, they have informed either to original plaintiff or original defendant No.1 about alleged execution of Ex.P.2 by late K. Kuppuswamy. It is also not come in evidence of these P.W.2 and P.W.3, they had possession of Will and after death of K. Kuppuswamy, they handed over same in favour of original defendant No.1. Nothing has been stated in pleadings or evidence of P.W.1, how original plaintiff come in possession of Ex.P.2. It is in cross-examination P.W.1 has deposed, said Will has been furnished by original defendant No.1.
75. Fact to be noted here, original defendant No.1 or defendants No.2 and 3 have not filed their written 52 O.S.No.25632/2008 statement. Hence there is no opportunity to come to conclusion by taking into note of contents of written statement of these defendants, how defendant No.1 come custody of Ex.P.2. Further it is to be noted here, from date of alleged execution of Ex.P.2, till said document has been produced before court it has not seen light of the day.
76. It is to be noted here, P.W.1 in his cross- examination has stated, he is not aware that, original defendant No.1 filed complaint against defendant No.4 to 6 alleging they are responsible for death of K. Kuppuswamy and they have created Will. The witness has further deposed, he is not aware police after thorough investigation filed 'B' final report. It is also stated by P.W.1 that, he is not aware 'B' report filed by police challenged by defendant No.1 and same is also dismissed.
77. It is worth to note here that, P.W.1 has not denied filing of complaint by original defendant No.1 against defendants No.4 to 6 and filing of 'B' final report by police, he has only claimed he is not aware about those facts.
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78. It is pertinent to note here that, in case the defendant No.1 has filed complaint against defendants No.4 to 6 alleged they have created Will and police have taken up investigation based on complaint filed by original defendant No.1, definitely either along with complaint or during investigation of case by police, original defendant No.1 would have produced Will as per Ex.P.2 before police. Such steps not taken by original defendant No.1.
79. It is pertinent note here that, contesting defendants have contended, Will as per Ex.P.2 is created and signature of late K. Kuppuswamy forged on said alleged document. P.W.1 in his cross-examination admitted, signature of testator in Ex.P.2 ended with down direction. It is denied by P.W.1 that, signature of K. Kuppuswamy in Exs.P.9 and P.10 is in upper direction. It is suggested to P.W.1 in his cross- examination that, signature on Ex.P.2 are forged.
80. It is pertinent note here that, P.W.2 in his cross-examination has deposed, he cannot say last letter of alleged signature of K. Kuppuswamy in 54 O.S.No.25632/2008 Ex.P.2(b) ended with down word direction. It is further denied by P.W.2 that, all signatures of testator on each page of Ex.P.2 are different.
81. The P.W.3 in his cross-examination has deposed, K. Kuppuswamy signed document as per Ex.P.2 in his presence. It is denied by witness that, Ex.P.2(b) signature is not signature of K. Kuppuswamy. The witness has further deposed, he do not know all signature in each page of Ex.P.2 are different.
82. The P.W.1 in his cross-examination has deposed, in order to sent registered documents of K. Kuppuswamy and Ex.P.2 for Expert opinion, he has to consult his advocate. P.W.2 has deposed, he do not have any answer to refer signature of K. Kuppuswamy Ex.P.2 for Expert opinion.
83. The learned counsel for plaintiffs has argued that, even in Ex.P.10 and P.12 signatures of K. Kuppuswamy defers from page to page. It is further argued that, over the time, there may be change in signature style, stroke, slant, pressure etc. It is also argued that, as per Section 73 of Evidence Act, court 55 O.S.No.25632/2008 can compare disputed signatures on document with admitted signature of person.
84. It is true, as per provisions of Section 73 of Indian Evidence Act, court empowers to compare disputed signatures with admitted signatures on documents, but, though court is expert of Experts cannot take such risk of comparing signatures on documents when there is serious allegation about forgery of documents. The plaintiffs having aware that, contesting defendants have seriously disputed signature of K. Kuppuswamy on Ex.P.2 and when defendants have contended, those signatures have been forged and created by defendant No.1 and witnesses, plaintiffs would have taken steps to refer Ex.P.2 with documents having admitted signature of K. Kuppuswamy for Expert opinion. Such steps not taken by plaintiffs to prove it is the late K. Kuppuswamy who signed Ex.P.2.
85. It is to be noted here, the court while deciding suit in O.S.No.25413/2008 as per Ex.D.3 has recorded findings that, as per final report filed by police under Section 173 of Cr.P.C. by virtue of complaint lodged by 56 O.S.No.25632/2008 plaintiff therein, who is original defendant No.1 herein CBI/police had taken custody of Will and other documents executed by K. Kuppuswamy for sending them to FSL for obtaining handwriting Expert opinion.
86. The plaintiffs having aware how in earlier proceedings Will relied by contesting defendants as per Ex.D.2 was proved would have taken necessary steps to refer Ex.P.2 with documents containing admitted signature of K. Kuppuswamy for Expert opinion to disprove contention of contesting defendants that, signature of K. Kuppuswamy forged on Ex.P.2.
87. As already discussed, an evidence of P.W.2 and P.W.3 who are said to be attesting witnesses to Ex.P.2-Will does not inspire confidence or conscience of court to accept said Will as true and genuine one, which said to have been executed by late K. Kuppuswamy.
88. The P.W.1 has clearly stated, it is defendant No.1 who handed over Will to original plaintiff. It is to be noted here that, in earlier proceedings in O.S.No. 25413/2008 present defendant No.1 being plaintiff has taken specific contention that, K.Kuppuswamy had no 57 O.S.No.25632/2008 capacity to execute Will that too at the age of 82 years and he was physically and mentally weak, so he was not in fit state of mind to dispose of his properties by executing Will because he was suffering from ill health and he was suffering from untreated cataract.
89. The defendant No.1 having taken such contention in earlier suit, now he cannot support plaintiff because Will relied by plaintiff is subsequent to Ex.D2. Now defendant No.1 cannot say his brother K.Kuppuswamy was in fit state of mind and health while executing Ex.D.2 and thereby support case of plaintiff. Such contention or supporting case of plaintiff would go counter to his own pleadings in earlier suit filed against defendants. As such defendant No.1 furnished Will to original plaintiff thereby got filed suit through her and though appeared before court in pursuance of service but conveniently not contested suit just to support case of plaintiff, if same is succeeded, he would get half share in suit properties.
90. It is pertinent to note here that, plaintiffs have failed to remove all suspicious circumstances as 58 O.S.No.25632/2008 discussed above which attached to due execution of Ex.P.2 - Will. Suspicious circumstances referred supra are inherent in transaction itself taking into note of facts and circumstances of case. As such, plaintiffs failed to prove, due execution of Will as per Ex.P.2 dated 20.12.2006 said to have been executed by late K. Kuppuswamy in favour of original plaintiff and original defendant No.1. On the other hand, contesting defendants have by virtue of findings recorded by court in earlier suit as per Ex.D.3 have sufficiently proved late K. Kuppuswamy executed Will dated 27.09.2006 bequeathing suit properties in favour of defendants No.4 to 6.
91. The defendant No.1 cannot say though issue No.2 in earlier suit as per Ex.D.3 was answered affirmative ultimately suit filed by him was decreed, as such he has no opportunity to challenge final result of said suit. It is evident from Ex.D.3 that, court has recorded findings that, Will as per Ex.D.2 proved in accordance with relevant law and by removing all suspicious circumstances. Judgment and decree as per Ex,D3 not challenged by either defendant No.1 or 59 O.S.No.25632/2008 plaintiff before appellate court. As such, judgment and decree wherein Will as per Ex.D2 held to be duly proved binding on defendant No.1 and plaintiffs. Hence, I answer Issues No.1 and 3 in the negative and Issue No.7 in the affirmative.
92. ISSUES NO.2 AND 4 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid repetition of facts and for convenience sake, both issues are taken together for common discussion.
93. The claim of original plaintiff that, she herself and original defendant No.1 are entitled for ½ share each in suit schedule mentioned properties mainly rest on proving of Ex.P.2 Will said to have been executed by K. Kuppuswamy bequeathing suit properties in their favour.
94. As already discussed, the plaintiffs have failed to prove due execution of Ex.P.2 by late K. Kuppuswamy as required under law. Once, plaintiffs failed to establish due execution of Ex.P.2 by removing 60 O.S.No.25632/2008 all suspicious circumstances attached to it due execution, plaintiffs cannot claim, they entitled for ½ share in suit schedule mentioned properties.
95. It is to be noted here, when plaintiffs failed to prove due execution of Ex.P.2 by late K. Kuppuswamy in respect of suit properties, they cannot claim they entitled for joint possession of suit properties being nearest legal heirs of deceased K. Kuppuswamy.
96. As already discussed, the contesting defendants have proved due execution of Ex.D.2 in accordance with law in earlier proceedings and competent court of law in proceeding filed by original defendant No.1 for letter of administration. Further, contesting defendants have taken properties under Will as per Ex.D.2 and have possession of the same. As such plaintiffs are not entitled for mesne profits as prayed in plaint. Hence, I answer Issues No.2 and 4 in the negative.
97. ISSUES NO.5 :- It is specific contention of contesting defendants that, suit of plaintiffs is bad for non-joinder of necessary parties. It is extracted from the 61 O.S.No.25632/2008 mouth of P.W.1 that, Smt. Vasantha Jagadish, Smt. Susheela, Smt. Saraswathi and Smt. Taramurgayyan are daughters and K. Kuppuswamy and Rajaiah are sons of N. Kothandarama Naidu mand Smt. Ranganayaki Ammal.
98. It is fact that, Smt. Susheela, Smt. Saraswathi and Smt. Taramurgayyan are not made as parties to present suit. It is argued on behalf of learned counsel for plaintiffs that, plaintiff and defendant No.1 are only survivors of late K. Kuppuswamy as such suit is not bad for non-joinder of necessary parties.
99. It is worth to note here that, it is other sisters of K. Kuppuswamy, whose names referred as above got every right to challenge Will said have been executed by K. Kuppuswamy. P.W.1 has deposed Smt. Susheela had son, Smt. Saraswathi had five children, Smt. Taramurgayyan had two children. These persons being nearest legal heirs of K. Kuppuswamy got right to challenge alleged Will as per Ex.P.2 executed by K. Kuppuswamy. P.W.1 has clearly admitted these persons 62 O.S.No.25632/2008 are not arrayed as parties to present suit. As such, suit is bad for non-joinder of necessary parties.
100. The learned counsel for defendants has argued that, Trust is not made as party to the suit as such suit is not maintainable. It is to be noted here, A trust is generally not considered a necessary party to a suit because it is not a legal or juristic entity that can sue or be sued in its own name. Instead, the trustees are the legal entities required to represent the trust and must be impleaded in all legal proceedings. Herein case trustees are parties to suit. Hence, I answer Issue No.5 in the affirmative.
101. ISSUE NO.6 :- Contesting defendants have contended, plaintiff has not paid proper court fees. It is pertinent to note here that, this issue was treated as preliminary issue and court by its order dated 12.06.2017 held that valuation of suit for the purpose of court fees in respect of relief No.1 for partition is not correct. Plaintiffs were directed to value suit as per Section 35(1) of Karnataka Court Fees and Suits Valuation Act and to furnish fresh valuation slip. 63 O.S.No.25632/2008
102. As per order dated 30.08.2018 counsel for plaintiffs filed memo with DD for Rs.3 lakhs towards court fees. Further on 12.10.2018 another memo filed with DD for sum of Rs.2,95,400/- and fresh valuation slip. It is also fact that, said memo and DD filed towards court fees was in compliance of order of the court dated 16.11.2018.
103. In view of above facts, contention of contesting defendants that, suit is not properly valued and plaintiff has not paid proper court fees not sustainable. Hence, I answer Issue No.6 in the affirmative.
104. ISSUES No.8 :- In view of the above said findings on Issue Nos. 1 to 7, I proceed to pass the following:-
ORDER The suit of the plaintiffs is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, typed & computerized by her, corrected and signed by me and then pronounced in the open Court on this the 3rd day of February, 2026.) (BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru. 64 O.S.No.25632/2008 ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:-
Examined on:
P.W.1 : B.P.J. Srinivasa Raghavan 19-10-2019.
P.W.2 : G. Venkatesan 17-09-2025. P.W.3 : K.P. Kumara Pandian 10-10-2025.
2. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:-
Ex.P.1 : General Power of Attorney dated 19.04.2008.
Ex.P.2 : Will dated 20.12.2006.
Exs.P.2(a): Signatures.
to P.2(c) Ex.P.3 : Certified copy of sale deed dated 22.8.1940. Ex.P.4 : Certified copy of sale deed dated 5.4.1956. Ex.P.5 : Certified copy of sale deed dated 25.8.1969. Ex.P.6 : Certified copy of lease deed dated 15.02.1985.
Ex.P.7 : Certified copy of deed of concellation of mortgage dated 28.03.2003.
Ex.P.7(a) : Certified copy of sale deed dated 24.10.1970.
Ex.P.8 : Certified copy of lease deed dated 16.05.1996.
Ex.P.9 : Certified copy of sale deed dated 05.07.2004.
Ex.P.10 : Certified copy of Deed of Partial Surrender of lease dated 02.07.2004.
Exs.P.11 : Encumbrance certificates. to P.13 65 O.S.No.25632/2008 Ex.P.14 : General Power of Attorney dated 10.07.2019.
Ex.P.15 : Death certificate of Smt. B.P.J. Vasantha.
3.LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:-
Examined on:
D.W.1 : R. Sadagopan 08-04-2025.
4.LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:-
Ex.D.1 : Certified copy of Deed of Declaration of a Public Charitable Trust dated 21.9.2005. Ex.D.2 : Will dated 21.09.2005.
Ex.D.3 : Certified copy of judgment in O.S.No.25413/2008.
Ex.D.4 : Certified copy of deposition of K. Kuppuswamy in HRC No.10166/1992. Ex.D.5 : Typed copy of Ex.D.4.
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru.