Bangalore District Court
Abhinethra S/O Thrinethra M.V vs M.V.Vrishabhendra S/O Late on 23 June, 2016
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.(CCH.NO.2)
Dated, this the 23rd day of June 2006.
PRESENT
Sri. RAVI M. NAIK,B.Com,LL.M.,
I Addl.City Civil & Sessions Judge, Bangalore.
O.S. NO.11308/2006
PLAINTIFF Abhinethra s/o Thrinethra M.V., aged about
22 yeas, r/a No.275, 14th 'E' cross, 2nd
stage, 2nd phase, West of Chord road,
Bangalore - 86.
(By Sri.B.S.Nataraj - Advocate)
- V E R S U S -
DEFENDANT M.V.Vrishabhendra S/o late
M.V.Veerabhadrappa, aged about 66years,
r/a no.783, 2nd 'D' cross, 8th main, 3rd stage,
3rd block, Basaveshwaranagara, Bangalore-79.
(By Sri.MPP - Advocate)
Date of institution of the suit : 29.8.2005
Nature of the suit (suit on Suit for grant of Succession
pronote, suit for declaration and Certificate
possession suit for injunction,etc) :
Date of the commencement of 7.8.2006
recording of the evidence :
Date on which the Judgment was 23.6.2016
pronounced :
Total duration Year/s Month/s Day/s
10 09 06
(RAVI M. NAIK),
I Addl.City Civil & Sessions Judge,
Bangalore.
2 O.S.No.11308/2006
J U D G M E N T
Initially the plaintiff filed a petition under Sec.276 of Indian Succession Act. Thereafter, the said petition was converted into suit as per the order of this court dated 19.12.2006.
2. The brief averments of the plaint are that one Smt.Gangamma who is the paternal grand mother of the plaintiff was the absolute owner of the suit schedule property and she acquired the title to the said property under a registered sale deed dated 16.9.1971. Other than Smt.Gangamma, no other had any right, title or interest over the suit property. She died on 20.4.2005. During her lifetime, she bequeathed the suit schedule property under a registered Will dated 22.10.2001 in favour of the plaintiff.
3. It is further stated that Smt.Gangamma died leaving behind six children. Among them, the defendant is her first son. It is further stated that after the death of Smt.Gangamma, the plaintiff by virtue of the Will, 3 O.S.No.11308/2006 approached the Bangalore Mahanagara Palike with a request to enter khata of the suit schedule property in his name. The defendant objected. Thereafter the Bangalore Mahanagara Palike authorities directed the plaintiff to obtain Probate of the Will.
4. It is further stated that at the time of executing the Will, the paternal grand mother of the plaintiff was physically and mentally fit and she executed the same without any coercion or undue influence. The plaintiff succeeded to the suit property as her legatee under the Will. Hence, the plaintiff has prayed to decree the suit.
5. After registering the suit, the suit summons was issued to the defendant. The defendant appeared through his counsel and filed written statement. The sum and substance of the contention of the defendant in the written statement is that the suit is not maintainable either in law or on facts. The defendant has admitted that the deceased Smt.Gangamma is the grand mother of the plaintiff and mother of the defendant. The defendant 4 O.S.No.11308/2006 has denied the description of the suit schedule property. It is contended that the defendant is in possession and enjoyment of the suit schedule property over a period of 30 years. It is contended that deceased Smt.Gangamma never executed any Will bequeathing the suit schedule property. The Will alleged to have been executed by her is a fabricated document. It is further contended that the testator under the said Will has no right, title or interest over the suit property. Smt.Gangamma did not have a sound state of mind at the relevant time. It is further contended that since Smt.Gangamma was in the custody of the father of the plaintiff, there was a chance of she being forced to make such bequeath. It is further contended that the defendant has taken up construction over the suit schedule property at his own cost and has been in possession and enjoyment of the same and he has been paying the taxes to the concerned authorities. The possession of the defendant in respect of the suit schedule property was open to the knowledge of the true 5 O.S.No.11308/2006 owner. It is further contended that by virtue of the legal notice dated 24.6.1979, Smt.Gangamma called upon the defendant to quit and deliver the vacant possession of the suit schedule property which was duly replied by the defendant. Thereafter, she did not choose to take any legal action against the defendant. By virtue of continuous possession over the suit property, the defendant has perfected his title by way of adverse possession. In para-7(a) of the written statement, the defendant has contended that the plaintiff has to pay the court fee on the market value of the suit schedule property. Plaintiff has not valued the same as per prevailing market value. Hence, the court fee paid is insufficient. In para-7(b) of the written statement, it is contended that the issue relating to the execution or otherwise of the Will has to be adjudicated in the suit. The plaintiff has not impleaded all the successors in estate of the deceased Smt.Gangamma. Therefore, the suit is bad for non-joinder of necessary parties. In para- 6 O.S.No.11308/2006 7(c) of the written statement, it is contended that the defendant is using the suit schedule property as office cum small scale industry being run by the defendant along with his wife under the name and style of M/s Ajay Sensors and Instruments. After filing the written statement, the plaintiff has filed rejoinder. The sum and substance of the contention taken in the rejoinder is that the paternal grand mother of the plaintiff after acquiring the suit property in the year 1975 constructed a building over the suit schedule property. During the lifetime of Smt.Gangamma, naturally she lived with her two sons i.e., father of the plaintiff and the defendant in the said house. Therefore the defendant cannot contend that he has perfected the title over the suit schedule property by adverse possession. It is further contended that Smt.Gangamma was paying the taxes to the local authorities and khata stood in her name and she constructed building in the suit schedule property. The defendant all along kept mum till Smt.Gangamma was 7 O.S.No.11308/2006 alive and after her death, with a sole intention to betray the plaintiff, he has taken such a false plea. Hence, the plaintiff has prayed to issue Probate of the Will executed by Smt.Gangamma dated 22.10.2001 in favour of the plaintiff.
6. On the basis of the above pleadings, his court has framed the following issues:
1. Whether the plaintiff proves that late Smt.Gangamma was the absolute owner in possession of the suit schedule property ?
2. Whether the plaintiff proves that late Smt.Gangamma had executed a Will in his favour ?
3. Whether the defendant proves that he has perfected his title over the suit property by adverse possession as contended in his written statement ?
4. Whether plaintiff is entitled to the relief sought ?
5. What decree or order ?
7. The plaintiff has been examined as PW.1 and the attesting witness to the Will Sri.B.H.Veeresh was examined as PW.2 and one witness by name 8 O.S.No.11308/2006 K.C.Prasanna was examined as PW.3 and got marked Exs.P.1 to P.6 documents. On the other hand, the defendant got examined himself as DW.1 and also got examined one witness as DW.2 and got marked Exs.D.1 to D.26 documents.
8. The learned Counsel appearing for the plaintiff has relied on the following decisions:
1. AIR 2006 SC 786 - Mathew Ommen V. Suseela Mathew.
2. AIR 1994 Gujarat 42 - Smt.Multivahuji Vs. Smt. Kalindivahuji & others.
3. AIR 1995 SC 895 - Annasaheb Bapusaheb Patil and others, Vs. Balwant @ Balasaheb Babu Saheb Patil (dead) by LRs & heirs etc.
4. ILR 2003 KAR 194 - Smt. Severine D'Souza & another Vs. Felix Ambrose D'Souza.
5. AIR 1992 Madras 136 - Alagammai & others Vs. Rakkammal.
6. The decision in RSA 66/2014 of Hon'ble High Court of Delhi - Ramesh Chander Gupta Vs. Kanta Gupta.
9. On the other hand, the learned Counsel appearing for the defendant has relied on the following decisions :
9 O.S.No.11308/2006
1. 2005(9) SCC 375 - Crystal Developers Vs. Archit Vanijya & Viniyog(P) Ltd.
2. 2002(1) SCC 33 - Ghulam Qadir Vs. Special Tribunal & others.
3. (1993) 2 SCC 507 - Chiranjilal Shrilal Goenka Vs. Jasjit Singh & others.
4. AIR 1997 KAR 75 - M.A.Kadakani Vs. M.T.Narvekar.
10. My findings on the above issues are as follows: -
Issue nos.1 & 2 : In the affirmative Issue no.3 : In the negative Issue no.4 : In the affirmative Issue no.5 : As per final Order for the following:
REASONS
11. Before answering the issues, I would like to state the admitted facts of this case. The father of the plaintiff Sri.Trinetra and defendant are the sons of late Veerabhadrappa and Smt.Gangamma couple. The suit schedule property was purchased by the deceased Smt.Gangamma on 16.9.1971 from one Subbanna and others under Ex.P.2 registered sale deed. The plaintiff is the paternal grand son of deceased Smt.Gangamma and 10 O.S.No.11308/2006 she died on 20.4.2005. It is clear from ExP.4 i.e., Death Certificate.
12.Issue no.1 : The defendant is the son of deceased Smt. Gangamma in his written statement at para-3 he has categorically stated that deceased Smt.Gangamma was the owner of the suit schedule property and that is corroborated by Ex.P.2 i.e., registered sale deed dated 16.9.1971. The recitals of the said document clearly disclose that the suit schedule property was purchased by deceased Smt.Gangamma. No doubt, in the chief examination of DW.1 i.e., the defendant at para-5, it is stated that the allegation made in the plaint that the deceased Smt.Gangamma was the owner of the suit property is incorrect. In his cross- examination at page-10 para-3, it is categorically stated by the defendant i.e., DW.1 that there is no recital in the sale deed that the sale consideration was paid by the defendant to purchase the suit property and he has not produced bank statement to show that he has paid the 11 O.S.No.11308/2006 sale consideration. In view of the categorical admission made by the defendant in para-3 of his written statement and in view of the recitals of Ex.P.2 sale deed, it is clear that Smt.Gangamma was the owner of the suit schedule property. It is also clear that during her lifetime, she was in possession of the suit schedule property. Hence, I answer Issue no.1 in the affirmative.
13. Issue no.2 : According to the plaintiff, his paternal grand mother late Smt.Gangamma executed Ex.P.1 Will in his favour and bequeathed the suit schedule property. On the other hand, the defendant who is the son of Smt.Gangamma has contended that Ex.P.1 is a fabricated document. His mother i.e., deceased Smt.Gangamma was residing with the father of the plaintiff. Taking advantage of that, by using coercion and undue influence, Ex.P.1 came to be executed. The defendant has further contended that the defendant is in possession and enjoyment of the suit schedule property. He has been paying the taxes to the concerned 12 O.S.No.11308/2006 authorities in respect of the suit schedule property. The plaintiff has no right, title or interest over the said property by virtue of the alleged Will. PW.1 i.e., the plaintiff in consonance with the plaint averments in his chief examination has stated regarding the execution of Ex.P.1. In his cross-examination at page-2 para-2, PW.1 has stated that the defendant is running an industry in the suit property and lives in the suit schedule property. The heavy burden is on the plaintiff to prove the execution of Ex.P.1 Will. PW.2 is an attesting witness to the Will i.e., Ex.P.1. On oath he has stated that Smt.Gangamma executed Ex.P.1. He identified his signature on Ex.P.1 at Ex.P.1(a) and the signature of the testator Smt.Gangamma on all sheets of Ex.P.1 at Ex.P.1(b) to P.1(f). One H.B.V.Patil is the scribe of the Will. In his cross-examination at page-4, PW.2 has stated that two months prior to the execution of the Will, Smt.Gangamma over telephone told PW.2 that she wants to execute a Will and requested PW.2 to sign the Will as a 13 O.S.No.11308/2006 witness and on the date of registration of the Will, scribe of the Will telephoned PW.2 and asked him to come to Rajajinagar Sub-Registrar's Office. When he reached the Sub-Registrar's office, the Will was already typed and in his presence Smt.Gangamma affixed her signature first and thereafter he affixed his signature and thereafter another attesting witness Siddappa put his signature on the Will.
14. The learned Counsel appearing for the defendant vehemently contended that this court cannot go into the enquiry regarding the title. In the Will, executor and administrator are not appointed. He drew the attention of this court to Sec.222 and 224 of Indian Succession Act and contended that said provisions have to be read conjointly. Sec.222 of the Indian Succession Act reads as under:
(1) Probate shall be granted only to an executor appointed by the Will.
(2) The appointment may be expressed or by necessary implication.14 O.S.No.11308/2006
Sec.224 of the Indian Succession Act reads as under:
"Grant of Probate to Several Executors simultaneously or at different times-When several executors are appointed, Probate may be granted simultaneously or at different times."
15. Further, the learned Counsel appearing for the defendant drew the attention of this court to the decision reported in 2005(9) SCC 375, (Head Note-B) which reads as under:
Sections 211, 212 and 213 bring out a dichotomy between an executor and an administrator. In the case of letters of administration, intermediate acts of the grantee are not protected whereas in the case of probate, all such acts are treated as valid. Further, Sec.227 states that a probate proves the will right from the date of the death of the testator and consequently all intermediate acts are rendered valid. It indicates that probate operates prospectively. It protects all intermediate acts of the executor as long as they are compatible with the administration of the estate. Therefore, Section 221 read with sec.227 brings out the distinction between the executor and holder of letters of administration; that the executor is a creature of the will; that he derives his authority from the will whereas the administrator derives his authority only from the date of the grant in 15 O.S.No.11308/2006 his favour by the court."
16. He further drew the attention of this court to another decision reported in (2002)1 SCC 33-Head note 'C', wherein the Hon'ble Apex Court has held as under:
"Succession Act, 1925, S.227 - Probate - Grant of probate, held does not decide question of title or of the existence of the property mentioned in the will -Probate does not establish more than the valid execution of the will and the appointment of the executor - Therefore, if after issue of probate a question arises as to its effect on the property of a third party."
17. He has further relied on another decision reported in (1993)2 SCC 507 wherein the Hon'ble Apex Court has held as under:
"Succession Act, 1925 - Ss.211(1), 217, 222, 223, 224, 227, 273, 276,280, 294, 295 and 299 - Grant of Probate - Court of Probate has exclusive jurisdiction - Civil court in original side or arbitrator, even on consent of parties, has no jurisdiction to adjudicate upon proof or validity of will propounded by the executor..."
18. On the other hand, the learned Counsel appearing for the plaintiff relied on a decision reported in 16 O.S.No.11308/2006 ILR 2003 KAR 194 wherein the full Bench of Hon'ble High Court of Karnataka has held as under:
"The proceedings for probate or letters of administration made to the decision of the Supreme Court in Chiranjilal Srilal Goenka Vs. Jasjit Singh 1993 SCC 407. The Division Bench in Maria Bai's case does not appear to have noticed in the true legal position as settled by the pronouncements of Hon'ble Apex Court. The observations made by the Division Bench that once a probate application is converted into a civil suit, the court gets jurisdiction to determine the question of title to the property etc., cannot therefore be said to be stating the legal position correctly. The Division Bench decision in Maria Bai's case is a judgment per incuriam and shall stand accordingly overruled."
19. In the instant case, initially the plaintiff had filed an application under Sec.276 of the Indian Succession Act. Since the said petition was contested by the respondent i.e., the defendant, it was converted into a regular suit. Under these circumstances, the civil court gets jurisdiction regarding the genuinity of the Will. The argument advanced by the learned Counsel appearing for the defendant that the civil court has no jurisdiction and 17 O.S.No.11308/2006 the executor of the will is not appointed is not a ground to come to a conclusion regarding the genuinity of the Will. Said technicalities cannot come in the way of giving substantial justice to the parties. More so, when the petition under sec.276 of the Indian Succession Act was converted into suit and the issues are framed and evidence led by both the parties.
20. On careful perusal of Ex.P.1, it discloses that Smt.Gangamma-paternal grand mother of the plaintiff executed the Will in favour of the plaintiff. One of the attesting witnesses to the Will PW.2 has categorically stated the due execution of the Will. He has stated that at her request he went to Sub-Registrar's office and in the presence of advocate Mr.Patil i.e., the scribe of the Will and another attesting witness Mr.H.S.Siddappa, he signed the will as an attesting witness. In his cross- examination at page-5, he has stated that the father of the plaintiff Sri.Trinetra had not come to the Sub- Registrar's office. No doubt, a suggestion is made to him 18 O.S.No.11308/2006 that the father of the plaintiff Sri.Trinetra and PW.2 are close friends, but he has denied it. Nothing is elicited in the cross-examination of PW.2 that under coercion and undue influence of the father of the plaintiff, his paternal grand mother Smt.Gangamma executed Ex.P.1. No doubt, the recitals of Ex.P.1 disclose that at the time of execution of the Will, Smt.Gangamma was aged about 80 years. But, nothing is elicited in the cross-examination of PWs.1 & 2 that at the time of executing the said document, Smt.Gangamma was not in a sound disposing state of mind. PW.2 on oath has stated that at the time of executing the said document, Smt.Gangamma was hale and healthy. Under these circumstances, mere non- certification by the medical officer regarding the health of testator-Smt.Gangamma is not fatal to the case of the plaintiff.
21. The recitals of Ex.P.2 is clear that the suit schedule property was purchased by the testator deceased Smt.Gangamma on 16.9.1971. In para-4 of the 19 O.S.No.11308/2006 written statement, the defendant has categorically admitted that his mother Smt.Gangamma was the absolute owner of the suit schedule property. No doubt, in para-5 of his chief-examination, DW.1 i.e., the defendant has denied that Smt.Gangamma was the owner. But there is no recital in Ex.P.2 that the defendant has contributed any amount for the purchase of suit schedule property and that is also admitted by DW.1 in his cross-examination at page-10 para-3. Ex.D.1 is the notice issued by the deceased Smt.Gangamma i.e., the mother of the defendant at an undisputed period of time prior to the execution of Ex.P.1 will. In the said notice, she has clearly stated that the suit property is owned by her and she constructed the house out of her own funds and permitted the defendant to occupy the house situated in the suit property temporarily. Para-2 of Ex.D.1 further disclose that the defendant has neglected her after the death of his father and she further requested to quit and deliver the vacant 20 O.S.No.11308/2006 possession of the suit schedule premises to her. In Ex.D.2 reply to the said Ex.D.1, the defendant has contended that the suit property never belonged to his mother Smt.Gangamma. The defendant financed the entire transactions, he being the eldest member of the family only to see that the family name is spoil and to keep a security for himself. Smt.Gangamma adopted a hostile attitude at the instance of the father of the plaintiff. The defendant has produced several documents i.e., Ex.D.3 acknowledgement for the cheques presented dated 28.3.1982 issued by the Corporation of City of Bangalore. Quotation issued by M/s Geetha Electricals at Ex.D.4, notice issued by the Bangalore Mahanagara palike in the name of Smt.Gangamma as per Ex.D.5, Intimation of property tax due issued by BMP in the name of Smt.Gangamma as per Ex.D.6. First deposit receipt issued by BWSSB at Ex.D.7, triplicate copy of the notice issued by BMP at Ex.D.8, Special notice issued by BMP at Ex.D.9, cash bill issued by Bhoruka Steels Ltd., 21 O.S.No.11308/2006 at Ex.D.10, Bill issued by Sree Raghavendra Water Supply & Sanitary stores at Ex.D.11, tax paid receipts at Ex.D.12 to D.15, show cause notice issued by the BMP at Ex.D.16 & 17, tax paid receipt at Ex.D.18, acknowledgement at Ex.D.19, property tax receipts at Ex.D.20 & 21, acknowledgement at Ex.D.22, D.23, property tax receipt at Ex.D.24, acknowledgement at Ex.D.25 and receipt at Ex.D.26.
22. The recitals of the aforesaid documents produced by the defendant clearly show that his mother Smt.Gangamma is the owner in respect of the suit schedule property and tax is being paid in the name of Smt.Gangamma. At the most, the defendant can be a licensee under his mother to reside in the suit schedule property. Since Smt.Gangamma has executed Ex.P.1 will in favour of the plaintiff, in view of the said testamentary document, since the suit schedule property was the absolute property of Smt.Gangamma, the defendant even though a class-I legal heir, cannot claim any right 22 O.S.No.11308/2006 over the suit property. Smt.Gangamma was the absolute owner of the suit schedule property. She had every right to execute the Will in respect of the said property. The attesting witness to the will PW.2 has categorically stated regarding the execution of the will in his presence. Nothing is elicited in the cross-examination of PW.2 that at the time of executing Ex.P.1, Smt.Gangamma was not in a sound disposing state of mind. On the contrary, the version of PW.1 coupled with the recitals of Ex.P.1 clearly shows that out of love and affection on her grand son, testator Smt.Gangamma executed Ex.P.1 in his favour. Page-2 of Ex.P.1 reads as under:
"FUÀ £À£U À É ªÀAiÀĸÁìVzÀÄÝ, £À£Àß PÀtÄÚU¼ À ÀÄ ¸ÀjAiÀiÁV PÁt¸ÀÄwÛgÀĪÁUÀ¯ÃÉ , £À£Àß Q«AiÀÄÄ ¸ÀjAiÀiÁV PÉý¸ÀÄwÛgÀĪÁUÀ¯ÃÉ ºÁUÀÆ £À£Àß ¥ÀAZÉÃA¢æAiÀÄUÀ¼ÀÄ ¸ÀjAiÀiÁV PÉ®¸À ªÀiÁqÀÄwÛgÀĪÁUÀ¯ÃÉ £À£Àß ¸Àé§Ä¢Ý¬ÄAzÀ £À£Àß ¸Àé EZÉÒ¬ÄAzÀ AiÀiÁgÀ ¥ÉÃæ gÀuÉ MvÀÛqª À ÀÇ E®èzÃÉ ºÁUÀÆ £À£Àß 3£Éà ªÀÄUÀ£ÁzÀ wæ£ÃÉ vÀæ EªÀ£ÃÉ £À£Àß DgÉÆÃUÀåªÀ£ÀÄß FUÉÎ ¸ÀĪÀiÁgÀÄ 25 ªÀµð À UÀ½AzÀ®Æ ZÉ£ÁßV £ÉÆÃrPÉÆAqÀÄ ªÀÄÄAzÉ £À£Àß fëvÁªÀ¢A ü iÀĪÀg« É UÀÆ £À£ÀߣÀÄß ZÉ£ÁßV £ÉÆÃrPÉÆAqÀÄ §gÀÄvÁÛ£A É § ¨sg À ª À ¸ À ¬É ÄAzÀ®Æ ºÁUÀÆ £À£Àß ªÉƪÀÄäU£ À ÁzÀ CAzÀgÉ £À£Àß 3£Éà ªÀÄUÀ£ÁzÀ wæ£ÃÉ vÀæ gÀªg À À ªÀÄUÀ£ÁzÀ C©ü£ÃÉ vÀæ ªÉÄÃ¯É £À£U À É ºÉZÀÄÑ ¦æÃw «±Á鸫 À zÀÄÝzj À AzÀ F PɼPÀ A À qÀ µÉqÀÆå®Ä ¸ÀévÀÛ£ÀÄß EªÀgÀ 23 O.S.No.11308/2006 ºÉ¸jÀ UÉ F «¯ï AiÀiÁ ªÀÄgÀt ±Á¸À£À ¥Àvz Àæ À ªÀÄÆ®PÀ §gɹnÖgÀÄvÉÛãÉ. F «¯ï AiÀiÁ ªÀÄgÀt ±Á¸À£À ¥Àvª Àæ ÀÅ £À£Àß ªÀÄgÀuÁ £ÀAvÀgÀ eÁjUÉ §gÀvPÀ ÀÌzÀÄÝ."
The aforesaid recitals of Ex.P.1 is clear that testator without any coercion or undue influence, voluntarily executed Ex.P.1 bequeathing the suit schedule property in favour of her grand son. Thus, the execution of Ex.P.1 is proved as contemplated under Sec.63 of the Succession Act and Sec.68 of the Indian Evidence Act. Hence, I answer Issue no.2 in the affirmative.
23. Issue no.3 : According to the defendant, he has been in possession and enjoyment of the suit schedule property continuously without any interruption and thereby he has perfected the title over the suit schedule property by way of adverse possession. On the contrary, the plaintiff has contended that the principles of adverse possession are not applicable to the facts of the case on hand. He has relied on a decision of the Hon'ble High Court of Delhi reported in RSA no.66/2014 - Rameshchandra Gupta Vs. Kanta Gupta. At para-15 of 24 O.S.No.11308/2006 the said Judgment, the Hon'ble High Court of Delhi has held as under:
"..The mere fact that one of the coparceners is not in joint possession does not mean that he has been ousted. The possession of the family property by a member of the family cannot be adverse to the other members but must be held to be on behalf of himself and other members. The possession of one, therefore, is the possession of all.."
24. Article 65 of the Limitation Act defines adverse possession. Adverse possession means 'hostile possession, i.e., possession which is expressly in denial of title of the true owner. The denial of title is sign of adverse possession. To be adverse must be possession by a person who does not acknowledge the other's right and denies them. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. In the instant case, in the written statement at page-2 para-4 dated 27.8.2006, the defendant has categorically 25 O.S.No.11308/2006 admitted that his mother Smt.Gangamma was the absolute owner of the suit schedule property. Thus, there is an unequivocal admission by the defendant regarding the ownership of his mother over the suit property. There is no denial of title of the suit property by the defendant. Added to that, the defendant is none other than the son of Smt.Gangamma who is family member. In the aforesaid decision, the Hon'ble High Court of Delhi has clearly held that "the possession of the family property by a member of the family cannot be adverse to the other members but must be held to be on behalf of himself and other members." Under these circumstances viewing from any angle, the possession of the defendant over the suit schedule property cannot be treated as adverse possession as contemplated under Article 65 of the Limitation Act. Therefore, the defendant has failed to establish that he is in adverse possession of the suit schedule property. Hence, I answer Issue no.3 in the negative.
26 O.S.No.11308/2006
25. Issue no.4 : In view of my findings on foregoing issues, since the testator executed Ex.P.1 in favour of plaintiff, by virtue of the said document, he became the owner of the suit schedule property. Hence, the plaintiff is entitled for the relief sought for. Accordingly I answer Issue no.4 in the affirmative.
26. Issue no.5 : In the result, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed declaring that the plaintiff is the absolute owner of the suit schedule property by virtue of the will dated 22.10.2001 executed by Smt.Gangamma in his favour.
Office is directed to issue Probate in respect of the said will dated 22.10.2001 attached to the plaint executed by Smt.Gangamma in favour of the plaintiff, on his paying requisite fee and executing indemnity bond with one solvent surety for the value in respect of which the Probate is being granted.27 O.S.No.11308/2006
Considering the relationship between the parties, no order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open Court on this the 23rd day of June 2016).
(RAVI M.NAIK), I Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF PW.1 Abhinethra PW.2 B.H.Veeresha PW.3 K.C.Prasanna LIST OF DOCUMENTS MARKED FOR PLAINTIFF Exs.P-1 Will " P-2 Sale deed " P-3 Khata extract " P-4 Death Certificate " P-5 Endorsement " P-6 Copy of the Caveat LIST OF WITNESSES EXAMINED FOR DEFENDANTS 28 O.S.No.11308/2006 DW.1 M.V.Vrushabhendra DW.2 A.Srinivasa reddy LIST OF DOCUMENTS MARKED FOR DEFENDANTS Exs.D-1 Legal notice " D-1(a) Postal envelope " D-2 Reply notice " D-3 Acknowledgement " D-4 Quotation " D-5 Special notice " D-6 Intimation " D-7 Deposit receipt " D-8 Notice " D-9 Special notice " D-10 Cash bill " D-11 Quotation " D-12 to 15 Tax paid receipts " D-16 Notice " D-17 Show cause notice " D-18 Tax paid receipt " D-19 & 20 Receipts " D-21 Property tax receipt " D-22 Acknowledgement " D-23 & 24 Receipts " D-25 Acknowledgement " D-26 Receipt (RAVI M. NAIK), I Addl.City Civil & Sessions Judge, Bangalore.29 O.S.No.11308/2006