Bangalore District Court
Sri.K.A.Ramnathsa vs Sri.A.Nagaraj on 5 February, 2021
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. MALLIKARJUNA., B.Com., LL.M.,
XIV ADDL. CITY CIVIL JUDGE
Dated this the 5th day of February, 2021
O.S.No.6398/2008
Plaintiff/s : Sri.K.A.Ramnathsa,
aged about 47 years,
S/o late Sri.K.R.Ashwathnarayan,
residing at No.16, K.V.Lane,
Cottonpet Cross,
Bangalore-560 053,
(By Sri.MNRV., Advocate)
- Vs -
Defendant/s : 1. Sri.A.Nagaraj,
Aged about 26 years,
S/o Sri.Annaaiahchar,
2. Sri.N.Annaiahchar,
Aged about 65 years,
S/o Sri.Nrayanachar,
Both residing at Old No.10,
and New No.10/1, 5th Cross Road,
Magadi Road, K.P.Agrahara,
Bangalore-560 023.
3. Sri.Ravi,
Major in age,
Father's name not known to the plaintiff,
carrying on business in T.V.Rapairing
in the shop located in the Grond Floor,
2 O.S.No.6398/2008
of property bearing Old No.10,
and New No.10/1, 5th cross road,
Magadi Road, K.P.Agrahara,
Bangalore-560 023.
4. Sri.Murthy,
Major in age,
Father's name not known to the plaintiff,
carrying on business along with 5th
defendant in Electric Motor Rewinding
in the shop located in the Ground Floor
of property bearing old No.10 and New
No.10/1, 5th Cross Road, Magadi Road,
K.P.Agrahara, Bangalore-560 023.
5. Sri.Sampath,
Major in age,
Father's name not known to the plaintiff,
carrying on business along with 4th
defendant in Electric Motor Rewinding
in shop located in the ground floor of
property bearing old No.10 and new
No.10/1, 5th Cross Road, Magadi Road,
K.P.Agrahara, Bangalore-560 023.
(By Sri.SR., Advocate for defendant No.3
By Sri.VPB., Adv., for Defendant No.5,
Deft No.4 exparte, D1 & 2 compromised)
Date of institution
of the suit : 15-09-2008
Nature of the suit
[suit on pronote, suit : Declaration and
for declaration and other consequential
possession, suit reliefs.
for injunction]
Date of the commencement
of recording of the evidence : 29-07-2016
Date on which the
Judgment was pronounced : 05-02-2021
3 O.S.No.6398/2008
Year/s Month/s Day/s
Total Duration 12 04 20
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of declaration, possession, permanent injunction, mesne profits and other consequential reliefs.
2. The brief facts of the plaintiffs' case are as under:
That late Smt.Lakshmidevamma wife of late N.Channaswamachar was the absolute owner of the suit schedule 'A' property, she has acquired it under registered sale deed dated: 19.6.1991, she was in actual possession of said property till her death i.e. 11.4.2008. During hr life time. The husband of Lakshmidevamma i.e. late N.Channaswamachar died intestate on 19-06- 1991 leaving behind him his wife Lakshmidevamma as only heir and legal representative, they had no issues. The 3rd defendant is in occupation of one of the shop 4 O.S.No.6398/2008 which form part of 'A' schedule property. Since Lakshmidevamma had no issues she had depended upon others for any kind of help, the plaintiff is one among them to help Smt. Lakshmidevamma. His factory is located exactly opposite to the schedule 'A' property wherein Smt. Lakshmidevamma was residing, since the plaintiff use to help Lakshmidevamma regularly, so he became close to her. He used to provide food and medial treatment and expenses. Therefore she inevitably depended for financial helps on others. Since Lakshmidevamma has received enormous help from the plaintiff she develop feeling of indebted towards plaintiff and kind affection, therefore she executed a will on 12-3-2008 bequeathing her property including 'A' schedule property infavour of plaintiff. Smt.Lakshmidevamma died on 11-04-2008. After demise of Lakshmidevamma will executed by her dated 12.3.2008 has been registered according to law. The plaintiff has incurred funeral as well as other rituals expenses through 2nd defendant. That after demise of 5 O.S.No.6398/2008 Lakshmidevamma one B.N.Shanta kumar handed over the will of Lakshmidevamma to the plaintiff. Thereafter plaintiff approached the Corporation office for getting khatha of the schedule property in his name by virtue of said will, then he learnt that defendants are making false claim over the suit schedule property. Hence the present suit is filed prayed for decreeing the suit in favour of the plaintiff and against the defendants declaring the decreeing plaintiff as absolute owner of the entire 'A' schedule property, further directing the defendant to vacant and hand over vacant possession of the suit 'B' 'C' and 'D' properties in favour of the plaintiff, also prayed for granting permanent injunction restraining the defendant No.1 and 2 from alienating the suit schedule 'A' property and order for granting mesne profit in respect of B' to 'D' schedule properties and costs of the suit.
3. After service of summons yhr defendant No.4 remained absent, hence he has been placed exparte, other defendants have appeared before the court through their counsel and filed their written statements. 6 O.S.No.6398/2008 Brief facts of the written statement filed by the defendant No.3 are as under.
The suit of the plaintiff is not maintainable either in law or on facts of the case. It is not correct to say that plaintiff was one amongst the persons who were helping Smt.Lakshmidevamma. It is true that plaintiff factory is exactly located to schedule 'A' property. It is false to say that plaintiff used to render help to Smt.Lakshmidevamma providing food for her and financial help for day to day requirements further provide medical expenses while she was hospitalized same is denied, the plaintiff be put to strict proof of the same. The suit is not properly valued, court fee paid is insufficient. True facts of the case which as under.
This defendant is having T.V. repair shop in the suit schedule premises since more than 10 years. He had cordial relationship with Smt.Lakshmidevamma, so out of love and affection she had executed a Will on 28.3.2008 in his favour bequeathing plaint schedule property. This defendant is continued to be in possession of the said 7 O.S.No.6398/2008 shop even after demise of Lakshmidevamma. Now this defendant is in possession and enjoyment of the same as a statutory tenant under Lakshmidevamma and by virtue of will executed by said Lakshmidevamma, he is entitle to receive rent from the defendant No.5. That without conceding to the genuineness of the 'Will' stated to be executed in favour of the plaintiff this defendant submit that even otherwise the Will dated: 28.03.2008 in his favour is the last Will executed by Smt.Lakshmidevamma and it alone shall prevail The alleged Will dated 12-03-2008 came to be registered only after demise of Smt.Lakshmidevamma give room of suspicious about its genuineness. This defendant denies the execution of alleged will dated: 12-03-2008 by Lakshmidevamma in favour of plaintiff, plaintiff has not derive any right, title and interest by virtue of said Will in respect of the suit schedule property. That other defendants have fabricated the Will dated: 7-12-2007 only with an intention to knock of the valuable property belonging to 8 O.S.No.6398/2008 Smt.Lakshmidevamma. Hence suit of the plaintiff is not maintainable prayed for dismissal of the suit.
4. The brief facts of the written statement of defendant No.5 which as under.
It is true that Lakshmidevamma was original owner of suit schedule 'A' property. This defendant is tenant under said Lakshmidevamma over 'A' schedule property paying monthly rent of Rs.500/- and paid advance amount of Rs.80,000/-, to Lakshmidevamma. This defendant is statutory tenant entitle to be in possession of the said property. The plaintiff has to put strict proof of the contention set up by him. It is false to say that Smt.Lakshmidevamma was depended others to meet out her day to day necessities. The plaintiff got created story to knock off the property of Smt.Lakshmidevamma, plaintiff is making false claim over the suit schedule property. This defendant categorically denied the fact that plaintiff has become owner of the suit schedule property by virtue of alleged Will stated to be executed by Lakshmidevamma,\ on 12-3-2008, suit of the plaintiff is 9 O.S.No.6398/2008 not at all maintainable, hence prayed for dismissal of the suit with costs.
5. On the basis of the above pleadings, materials and documents, my predecessor in office has framed the following issues:
1. Whether the plaintiff proves to be the absolute owner of the entire Schedule 'A' property?
2. Whether the plaintiff is entitled for vacant portion of Schedule 'B' property from defendants No.1 and 2 ?
3. Whether the plaintiff is entitled for the vacant portion of Schedule 'C' property from defendant No.3?
4. Whether the plaintiff is entitled for the vacant portion of schedule 'D' property from defendants No.4 and 5 ?
5. Whether the plaintiff is entitled for enquiry of mesne profits u/O 20 R 12 of CPC as sought for?10 O.S.No.6398/2008
6. Whether defendant No.3 proves the Will dated 28.03.2008?
7. Whether the plaintiff proves the Will dated 12.03.2008 to be genuine Will?
8. Whether defendant No.5 proves to be in possession of suit schedule 'D' property?
9. Whether Will dated 07.12.2007 is fabricated?
10. What order or decree?
6. During pendency of the suit the plaintiff entered into compromise with the defendant No.1 and 2 and got partial decree in terms of the compromise petition. Since the very claim of the plaintiff is based on the alleged Will stated to be executed by deceased Lakshmidevamma in respect of suit schedule property. He has failed to due execution of the Will. Therefore he cannot acquired right under said Will. Therefore the partial decree passed by my learned predecessor in office in respect of the suit schedule property has no relevancy for acquiring title of 11 O.S.No.6398/2008 the plaintiff over the suit schedule property. The evidence placed by the plaintiff miserably failed to gain confidence of the court in establish due execution of Will deed, dated: 12-03-2008. Even the documents relied under Ex.P-11 to 13 katha got changed in the name of plaintiff during pendency of the suit that too based on unproved will. Therefore they themselves create title of the plaintiff over the suit schedule property.
7. On perusal of the pleadings and issues framed by my predecessor in office, it appears that the way in which they have been framed and the construction of words are incorrect. It may be due to typographical and clerical mistake error has been crept it has been issue No.2 to 4 wrongly typed as vacant portion instead of typed it as 'vacant possession' it is nothing but typographical clerical error it has to be corrected otherwise it will leads to ambiguity. Soto avoid ambiguity requires to be re-casted, If it is not corrected then it may leads to ambiguity which will create hurdles for fair adjudication of the case on 12 O.S.No.6398/2008 hand. Therefore they are required to be recasted to avoid ambiguity. Therefore as per inherent powers envisaged under Order 14 Rule 5 of CPC, I proceed to recaste the issues No.2 to 4 as under.
Recasted Issue No.2 to 4:
2. Whether the plaintiff is entitled for vacant possession of Schedule 'B' property from defendants No.1 and 2 ?
3. Whether the plaintiff is entitled for the vacant possession of Schedule 'C' property from defendant No.3?
4. Whether the plaintiff is entitled for the vacant possession of schedule 'D' property from defendants No.4 and 5 ?
8. In order to prove these issues, plaintiff over all got examined and examined witnesses on his behalf as P.W.1 to 4 and got marked 10 documents as Ex.P-1 to 13. On the other hand on behalf of defendants the defendant No.3 examined 5 witnesses as D.W.1 to 5 and got marked 13 O.S.No.6398/2008 124 documents as Ex.D.1 to 124 and closed their side evidence, hence case is posted for argument.
9. Heard the arguments of both sides. Perused pleading, evidence and documents relied by both parties.
10. My findings to the above issues are as follows :
Issue No.1 : In the negative,
Recaste Issue No.2 : In the negative,
Recaste Issue No.3 : In the negative,
Recaste Issue No.4 : In the negative,
Issue No.5 : In the negative,
Issue No.6 : In the negative,
Issue No.7 : In the negative,
Issue No.8 : In the affirmative,
Issue No.9 : In the affirmative,
Issue No.10 : As per final order
for the following;
14 O.S.No.6398/2008
REASONS
11. ISSUE No.1 & 7 : Both the issues are inter related and connected to each other to avoid repetition, I have taken them jointly for discussion.
It is the case of the plaintiff that one
Smt. Lakshmidevamma wife of late
Sri.N.Chinnaswamachar was the owner of suit 'A'
schedule property. She acquired it under the registered sale deed, dated 19-06-1991. Her husband N.Chinnaswamachar predecessor to her, They had no issues, there were nobody to look after Smt.Lakshmidevamma, since she age old unable to maintain herself, so she use to seek help of others. She was also not having sufficient source of income for her livelihood hence she use to seek financial assistance. The plaintiff Is having factory situated opposite to the suit 'A' schedule property and used to meet Smt.Lakshmidevmma regularly and provide her necessary help including providing food and financial help thereby developed intimacy, love and affection. The 15 O.S.No.6398/2008 plaintiff use to bear medical expenses and whenever she was required. Therefore Smt.Lakshmidevamma with an intention to discharge her obligation executed Will on 12-03-2008 bequeathing 'A' schedule property in favour of plaintiff. Later Smt. Lakshmidevamma died on 11-6-2008. So the plaintiff has become absolute owner of 'A' schedule property by virtue of the said Will executed by Lakshmidevamma. These facts have been flatly denied by the defendants in their written statement contended that plaintiff never helped late Smt.Lakshmidevamma during her life time nor he has given any financial assistance to her at any point of time. The Plaintiff with an intention to grab valuable property of late Smt.Lakshdevamma got created the Will, dated 12-03-2008 by forging her signature. It is also denied that plaintiff used to help said Smt.Lakshmidevamma and used to bear her medical expenses and used to provide food and other necessary things at any point of time. These facts have been created by plaintiff only with an intention to knock off the property of 16 O.S.No.6398/2008 Smt.Lakshmidevamma. That late Smt.Lakshmidevamma never executed Will, dated: 12-3-2008 bequeathing suit 'A' schedule property in favour of plaintiff. On the other hand the defendant No.3 has set up plea that he was leaving with Smt.Lakshmidevamma in the suit schedule property during her life time, and he use to help her in all respect thereby she developed love and affection with him,out of said love and affection she had executed Will dated 28-03-2008 bequeathing entire 'A' schedule property in his favour. Hence prayed for rejection of the claim of plaintiff.
12. To prove the case of plaintiff over all five witnesses have been examined. He himself got examined as PW.1. In his affidavit filed in the form of examination-in-chief he has reiterated the plaint averments. In support of his oral argument he has relied Ex.P-1 to 13 documents on behalf of the defendants, over all examined 5 witnesses got marked Ex.D.1 to 124 documents. Though the PW-1 in his affidavit filed in the 17 O.S.No.6398/2008 form of examination-in-chief reiterated the plaint averments. In the course of cross-examination he has deposed as under.
" On 11-4-2008 Shivakumar handed over to me the will Ex.P-1 I do not remember the exact date of will it is march 2008. Shivakumar hand over to me Ex.P-1 prior to the completion of obsequies ceremonies of Lakshmidevamma. I do not remember time when the will was given to me at that time defendant No.1 and 2 present."
13. On perusal of the above evidence it clearly reveals that plaintiff has contended that the alleged will dated 12-03-2018 was in possession of Shivakumar who handed over it to him on 11-4-2008. It is the contention of the PW-1 that he has his factory just opposite to the suit schedule property and use to meet Smt.Lakshmidevamma frequently and render his help including providing food and medical assistance, but he has not produced single piece of document to show that 18 O.S.No.6398/2008 he had helped deceased during her life time, except oral evidence there is no other material placed on record. The PW-2 stated to be attesting witness to Ex.P-1 the will of Lakshmidevamma dated 12.03.2008 has been examined to prove its due execution. In his affidavit filed in the form of examination in chief he has deposed supporting the case of the plaintiff and also identified his signature as well as signature of Smt.Lakshmidevamma alleged to be available on Ex.P-1 will. In his cross examination the PW.2 has deposed as under.
"It is true to suggest that I was present each and every date of hearing along with plaintiff in this case. I am running cloth business at Balepete, Bangalore. Since the plaintiff is relative and I put signature hence I used to come with him. I myself come to the court with own not at the instance of the plaintiff for all the hearing dates. "19 O.S.No.6398/2008
14. That on perusal of the above evidence of PW- 2, it clearly reveals that he is close relative of plaintiff, he use to attend the Court on each and every date of hearing, though his presence is not required. The very conduct of the witness clearly shows that he is very much interested to help the plaintiff. Further the PW.2 deposed as under.
"I was signed to the Will and concerned register of Sub Register Office. I was not remember the date of Will but it is executed in the year 2008. I was put my signature on the said Will at Gandhinagar Sub Register office on stamp paper. It was near about 2 p.m. at the time of putting my signature stamp paper Ashwath, Shivakumar and Ramanath were present.
15. That the above evidence of PW-2 states that he has signed he Ex.P-1 will i.e. on Stamp paper at Gandhinagar Sub-Register office at 2.00 p.m. in presence 20 O.S.No.6398/2008 of one Ashwath, Shivakumar and Ramanath. If this evidence is taken into consideration it is quite clear that the PW-2 has signed the Ex.P-1 in the Sub-Registrar office and not in presence of Smt.Laxmidevamma. Further the PW.2 deposed as under.
"The said draft was drafted by one Ashwath. I was not read over document, but Ashwath stated that Smt.Lakshmidevamma executed will in favour of Ramanatha, Lakshmidevamma was not present in the Sub-Register office. I am not talking with Lakshmidevamma at Sub Register office. It is true to suggest that prior to put the signature on the will Ex.P-1, I was talking with the Lakshmidevamma. The Lakshmidevamma was explained before me that I intend to execute the will in favour of Ramanatha. It was explained before me before her death, witness again stated that approximately 7-8 months back from the 21 O.S.No.6398/2008 date of registration of Ex.P-1 she was expressed before me."
16. That on perusal of the above evidence of PW.2 it clearly reveals that the witness has no personal knowledge of execution of Will by Smt.lakshmidevamma on the other hand he was heard about it from Ashwath. Further he has stated that Lakshmidevamma told about her intention of execution of Will prior to 7-8 months of her death. Therefore it clearly reveals that doubt arises about the PW-2 whether he has the attesting witness to ExP-1 Will dated: 12-03-2008.
Further P.W.2 has deposed as under:
"I do not remember the contents of the affidavit. I do not know who has prepared the affidavit. I do not know whether I have seen the signature of Lakshmidevamma. I have seen Ex.P-1 after registration." 22 O.S.No.6398/2008
17. That on perusal of the above evidence it appears that PW.2 has no knowledge that who has prepared his affidavit filed in the form of examination-in- chief and he could not remember its contents. Further he hs categorically admitted that he has seen Ex.P-1 after registration. If such would be facts then how it can be believed that Smt.Lakshmidevamma had executed Ex.P-1 Will in his presence and he has attested the said document. It is also one of the doubt circumstance about his presence at the time of execution of Ex.P-1 Will.
The PW.3 has also been examined to prove due execution of Ex.P-1 Will by late Smt.Lakshmidevamma. He has deposed supporting case of the plaintiff in his affidavit filed in the form of examination-in-chief but in the cross examination he has deposed as under.
" I studied up to S.S.L.C. at the instance of my advocate I deposed. I have not filed sworn affidavit in lieu of chief-examination. I know the plaintiff since long time. I am residing at 23 O.S.No.6398/2008 Mudulapalya, Bangalore. I put my signature on one document in the year 2008. I do not know the exact date. The said document is said to have been Will executed by Lakshmidevamma in favour of plaintiff. I do not know the contents of the said document. I do not know the name of scribe. At the time of putting my signature Lakshmidevamma, Ramu and plaintiff were present, it was 11 to 11.30 a.m. I put my signature in the house of Lakshmidevamma,. After signature I went to my home. After putting my signature on Ex.P- 1 I have seen as there is no necessity for me. Now I have seen the sworn affidavit i.e. evidence of PW-3. The signature of it belongs to me which was put in the house of Lakshmidevamma. I do not know the contents of my affidavit.".
[
18. That on perusal of the above evidence of PW-3 it is clearly appears that the witness has no knowledge 24 O.S.No.6398/2008 about due execution of alleged Will under Ex.P-1 by late Smt.Lakshmidevamma. According to him he has signed said document in the house of Lakshmidevamma at about 11 - 11.30 a.m. on the other hand according to PW-2 all were gathered in the house of late Lakshmidevamma at about 2.00 p.m. on the date of excution of Ex.P-1 will by Lakshmidevamma, so one point is clear that there is no corroboration in the evidence of PW.2 & 3 they are contradictory to each other particularly about timing of execution of he Will. Moreover it is the specific case of the plaintiff that Lakshmidevamma executing the will hand over it to the Shivakumar who was holding it till demise of Lakshmidevamma and after her demise on 11.4.2008 PW-3 has handed over it in favour of plaintiff. But evidence of PW-3 is quite contrary to the said contention. There is no corroboration in the evidence of PW-3 with Pw-1 and 2.
25 O.S.No.6398/2008
19. Further according to Pw-3 plaintiff was also present at the time of execution of Ex.P-1 Will, if such would be the fact it cannot be called as Will is executed with free will and consent without any influence and duress. On the other hand it gives room for doubt that the beneficiary of the said Will has control over the executant. Therefore it is also one of the suspicious circumstances about due execution of Ex.P-1 arguments seems to be reasonable. PW.4 stated to be scribe of the Will deposed supporting the case of plaintiff in his affidavit filed in the form of examination-in-chief. In his cross examination he has deposed as under.
"I was signed both signatures at the house of Lakshmi Devamma, one Pream Kumar or Ved kumar, I have not remembered exactly but one Kumar and Lakshmidevi called me to prepare the draft. As per the instructions the Lakshmidevi. After read over the said draft the said Lakshmidevi confirmed that it is true and correct and she has put her thumb 26 O.S.No.6398/2008 impression, witnesses also put their signatures. The witnesses name is one Ramanath and another one is Kumar. I cannot say the exact time when the witnesses put their signatures on Ex.P.1 but approximately afternoon. The Kumar was handed over the death certificate of Lakshmidevamma along with Ex.P.1 to me."
20. That on perusal of the above evidence of PW-4 it clearly reveal that he had been to house of Lakshmidevamma on the request of either Lakshmidevamma or one Kumar he could not remember exactly. According to him he has prepared the draft of the Will and handed over it to Lakshmidevamma and she read it and confirmed. Further it is his contention that one Ramanath and Kumar alone are the witnesses present at the time of execution of said Will. So evidence of PW-3 and 4 categorically states that the plaintiff Ramanath who claiming to be beneficiary of Ex.P-1 Will was present at the time of it's execution. The doubt 27 O.S.No.6398/2008 circumstances further strengthen by the evidence of PW-3 and 4. Further the PW-4 identified his two signatures alleged to be available on Ex.P.1 same are marked as Ex.P.1 (e) and (f). According to him as deposed in the cross examination he has signed both signatures at the house of Lakshmidevamma. But the contents Ex.P-1 the disputed Will it reveals that the signature marked as Ex.P.1 (f) appears to be made before Sub Register Gandhinagar at the time of registration of the Will admittedly Ex.P-1 has been registered after death of Lakshmidevamma. So the very evidence of PW.4 that he has drafted will as per the instructions of late Lakshmidevamma and he has signed the said document as scribe in presence of Lakshmidevamma and witnesses appears to be false and unacceptable. The PW.4 himself sure about the names of the witnesses who were present at the time of execution of Will, even he has not definite who called him to draft the Will. Such being the case his evidence is not sufficient to come to conclusion about due execution of Will by Smt.Lakshmidevamma. The oral 28 O.S.No.6398/2008 evidence of PW.1 to 4 are not corroborating to each other on the other hand they are having full of contradictions with regard to place, time presence of witnesses and due execution of Will Ex.P.1. Therefore the evidence of PW-1 to 4 have failed to gain the confidence of court to arrive to the conclusion of about execution of the Ex.P1 Will. The contents of Ex.P1 also not been established by plaintiff with cogent and convincing evidence Therefore the plaintiff contention that Smt. Lakshmidevamma had executed the Ex.P-1 Will dt.12.3.2008 bequeathing 'A' schedule property in his favour, and after her demise he has become absolute owner of 'A' schedule property does not holds good. He has failed to prove issue No.1 and 7, no reason is available to deny the same. Therefore I have answered it in the negative.
21. Issue No.6: According to the defendant No.3 Smt.Lakshmidevamma had no issues. The suit schedule property belongs to her, she requested him to stay with her in her residence and she had helped him to establish T.V. repair shop. He lived with 29 O.S.No.6398/2008 Smt.Lakshmidevamma since more than 10 years and has cordial relationship with her therefore out of said cordial relationship she had develped love and affection. She had executed a will on 28-03-2008 bequeathing suit schedule property in his favour. On account of death of Smt.Lakshmidevamma the defendant No.3 acquired right over the suit schedule property. These facts have been denied by the plaintiff. The defendant No.3 to prove his contention over all examined 5 witnesses. He himself got examined as DW-1, in his affidavit filed in the form of examination-in-chief he has reiterated his written statement averments and in support of his oral contention he relied over all Ex.D.1 to 124 documents. In his cross-examination he has deposed as under.
ನನನನ ದನವ ಸ ಷಷಡಡಡಲಲನ ಒಒದನ ಅಒಗಡಯಲಲ ಬನಡಗಷದನರನನಗದಷದ ಎಒದರಷ ಸರಯಲಲ ಆದರಷ ಮನಷಯಲಲ ವನಸವದಷದ . ನನನನ 1998 ರಲಲ ವನಡಪನರ ಮನಡನವ ಉದಷದದಶದಒದ ಅಒಗಡ ಹನಡನಕನತದಷದ ಆಗ ನನಗಷ ಲಕಕಕದದಷದವಮಮ ನವರನ ಪರಚಯ ಆಗ ಅವರನ ತಮಮ ಅಒಗಡ ಬನಡಗಷಗಷ ಇದಷ ಅದನನನ ಬನಡಗಷಗಷ ತಷಗಷದನಕಷಡಳಳ ಎಒದನ ತಳಸದರನ . ಅಒದನಒದ ನನನನ ಸದರ ಅಒಗಡಯಲಲ ಬನಡಗಷಗಷ ಇದಷದ ಆಗ ತಒಗಳಗಷ ರಡ.500 ಬನಡಗಷ ಕಷಡಡನತತದಷದ .
30 O.S.No.6398/2008
22. On perusal of the above evidence, it clearly reveals that D.W.1 in an unequivocal terms admitted that in the year 1988 he was searching for a shop on rent for his business purpose and he came with contact to Lakshmidevamma and she has given one of the suit schedule shop on monthly rent of Rs.500/-. On the contrary to this admission the D.W.1 in his further cross- examination made an attempt to deny his own contentions and tried to set up new plea that he is residing in the suit schedule property as owner. That the new plea set up by the DW.1 in the course of cross- examination is nothing but beyond his own pleadings and there is no base for it arguments seems to be reasonable. Further D.W.2 has been examined on behalf of defendant No.3, he stated to be one of the attesting witness to the alleged Will of Smt.Lakshmidevamma dated 28-03-2009. In his affidavit filed in the form of examination-in-chief not only he has deposed supporting the case of the defendant No.3, also he has gone beyond 31 O.S.No.6398/2008 the contention of defendant No.3 and tried to say that defendant No.3 is in possession and enjoyment of the suit schedule property from 1998 till date as owner of the property. D.W.2 has shown more interest rather than deposing about due execution of the Will, he has tried to establish ownership of the defendant No.3 over the suit schedule property. In his further cross examination he has deposed as under.
"ನನನ ಮನಖಡ ವಚನರಣಷ ಶಪಥ ಪತತದಲಲ ಹಷದಳರನವ ಎಲನಲ ಸಒಗತಗಳನ ಗಷಡತತರನತತವಷ . ಹದಗನಗ ನನನಷದ ಹಷದಳ ಬರಷಸರನತಷತದನಷ . ಈ ಪತಕರಣದ ಕಡತವನನನ ನನನನ ನಷಡದಡರನವವದಲಲ . ನನನ ಮನಖಡ ವಚನರಣಷ ಶಪಥ ಪತತದಲಲ 3 ನಷದ ಪತತವನದ ಈ ಪತಕರಣದಲಲ ಸಲಲಸದ ಪತತವನದ ಪತತ ನಷಡದಡರನತಷತದನಷಒದನ ಹಷದಳದನದ ಅದನನನ ನನನನ 3-4 ವರರಗಳ ಹಒದಷ ನಷಡದಡರನತಷತದನಷ. ನ.ಡ. 124 ವಲಲ ನನಮ ನನನಷದ ಬರಷದರನತಷತದನಷ. ಅದನನನ ನನನನ ಲಕಕಕದಷದವಮಮನವರ ಹಷದಳಕಷಯಒತಷ ಒಒದನ ತಒಗಳನ ಮದಲಷದ ಬರಷದದನದ ನಒತರ ದದ 28-03-2008 ಅದನನನ ಅಒತಮಗಷಡಳಸರನತಷಷತದನಷ. ವಲಲ ನನವಷನ ಬರಷಯನವಒತಷ ಲಕಕಕದಷದವಮಮ ಪತತ ಬರಷಯನವ ಒಒದನ ತಒಗಳ ಮನಒಚಷ ತಳಸದರನ . ಆ ರದತ ಲಕಕಕದಷದವಮಮ ವಚನರ ತಳಸದ ಸಒದರರದಲಲ ನನನನ ಮನರನರ ಮತನತ ಅನಒತಸಒಗ ಹನಜರದಷದವವ . ಅದನನನ ಅವರನ 2008 ರ ಜನವರ 32 O.S.No.6398/2008 ಅಥವನ ಫಷಬತವರಯಲಲ ತಳಸರಬಹನದನ . ನ.ಡ. 124 ತಯನರಸನವ ಮದಲನ ಅದರ ಕರಡನ ಪತತ ತಯನರಸ ಅವರಗಷ ಕಷಡಟಟದಷದ . ಸದರ ಕರಡನ ಪತತಯನನನ ಅವರನ ಹಷದಳದ 10-12 ದವಸದಷಡಳಗಷ ಕಷಡಟಟರನತಷತದನಷ . ಅದನನನ ಲಕಕಕದಷದವಮಮ ನನನ ಜಷಡತಷ ಮನರನರ , ಅನಒತಸಒಗ ರವರ ಸಮನಮಖದಲಲಯದ ಓದ ಅವರಷ ಇಟನಟಕಷಡಒಡರನತನತರಷ. ನಒತರ ವಲಲ ನನಮಯನನನ ಲಕಕಕದಷದವಮಮನವರಷದ ಬಷರಳಚನಚಪಡಸ ಇಟಟದದರನ . ಲಕಕಕದಷದವಮಮ ವಲಲ ಗಷ ಸಹ ಮನಡನವನಗ ನನನನ ಮನರನರ ಅನಒತಕಕರಷಸಒಗ ಮತನತ ಲಕಕಕದಷದವಮಮ ಹನಜರದಷದದವವ. ನನವವ 4 ಜನರವನನನ ಹಷಡರತನ ಪಡಸ ಬಷದರಷ ಯನರನ ಇರಲಲಲ .
23. On perusal of the above evidence of D.W.2 it is quite clear that according to D.W.2 Lakshmidevamma called him and told to prepare the Will. Thereafter he got prepared the draft of the Will and handed over it to Lakshmidevamma in presence of one Murari, Anand Singh thereafter she read over and got confirmed herself and kept it with her. Thereafter she herself got it typed thereafter called upon PW-2 and other two persons to her house and executed the original Will. If this version of 33 O.S.No.6398/2008 D.W.2 is considered to be true then he cannot be called as scribe of the document unless the draft stated to be prepared by him has been produced along with original Will. Admittedly in this case th original draft prepared by D.W.2 and stated to be handed over to Lakshmidevamma has not been produced. According to D.W.2 the original Will got typed by Smt.Lakshmidevamma herself. The witness is no knowledge where it has been got typed. Such being the case he cannot be called as scribe of the Ex.D.124 Will arguments holds to be good. On perusal of entire evidence of D.W.2 it clearly reveals that he has shown personnel interest to help the defendant No.3 beyond the scope. Even he has gone to the extennt say the things which have not been pleaded by defendant No.3, that itself clearly goes to show that he has much interest in him. Therefore it leads to suspicious circumstance arguments seems to be reasonable.
24. That D.W.3 is also examined to prove the contention of defendant No.3, he is also stated to be attesting witness, he deposed supporting the case of the 34 O.S.No.6398/2008 defendant No.3. In his cross examination he is deposed as under.
"Defendant No.3 Ravikumar is acquainted with him since from 20 years and he is a good friend of him."
25. On perusal of the above evidence of D.W.3 it clearly reveals that he is close friend of defendant No.3, so with an intention to help his close friend he might have deposed supporting his case arguments appears to be reasonable. He has not stated in his entire evidence that why Smt.Lakshmidevamma chosen him to be a attesting witness to her Will. If the entire evidence of DW.3 is taken into consideration it clearly reveals that he is a good friend of defendant No.3, so to help his friend he might be deposing on behalf of defendant no.3 argument seems to be reasonable. The D.W.4 stated to be another attesting witness of Ex.D.124 also deposed supporting case of the defendant No.3. In his cross examination he has deposed as under.
35 O.S.No.6398/2008
"ನನಗಷ ಸನಕಕ ಹಷದಳಲನ ನನಡಯನಲಯದಒದ ಸಮನಲನ ಬಒದರನತತದಷ . ಅದನನನ ಇಒದನ ನನನನ ತಒದರನವವದಲಲ . ನನಗಷ ಇಒದನ ನನಡಯನಲಯಕಷಕ ಯನರಡ ಕರಷದನಕಷಡಒಡನ ಬಒದರನವವದಲಲ ಆದರಷ ವಚನರಣಷ ದನನಒಕ ಇರನವವದರಒದ ಬಒದರನತಷತದನಷ . ನನಗಷ ಇವತನತ ಪತಕರಣ ವಚನರಣಷ ಇರನತತದಷಒದನ ಒಒದನ ವನರದ ಹಒದಷ ಪತತವನದ ಪರ ವಕದಲರನ ತಳಸರನತನತರಷ . ನನನನ ನನನ ಮನಷ ಡಷಡದರಲ ನಒ.53 , ಕಷಒಪಮಮ ಅಗತಹನರ 5 ನಷದ ಕನತಸಲನ ಮನಗಡ ರಸಷತಯಲಲ ವನಸವರನತಷತದನಷ .
But on perusal of address of D.W.4 given in his affidavit filed in the form of examination-in-chief he is stated as under.
"Anantha Krishna Singh S/o M.S.Hanuman Singh, aged about 61 years, now residing at Vidayanagar, Nanjunguru, Mysore District having come to Bangaluru.
26. That on perusal of the above evidence it appears that in one breath the D.W.4 contends that he is residing in the house situated opposite to the suit schedule property since more than 20 years in another 36 O.S.No.6398/2008 breath the witness in his affidavit filed ijn the form of examination-in-chief he has stated given a different address where he is stated to be residing both are not having nexus to each other on the other hand they are quite contrary so which version of the witness has to be taken into consideration. Why he has given different version out his residential address has not been explined. In his further cross examination he has deposed as under.
"ಈ ದನವಷಯ ವನದ ರನಮನನಥ ಸನ ನನಗಷ ಗಷಡತತಲಲ, ಅವರನ ಈ ದನವಷಯನನನ ಯನಕಷ ಹನಕರನತನತರಷಒದನ ನನಗಷ ಗಷಡತತಲಲ. ಅವರನ ಯನರ ವರನದದ ದನವಷ ಹನಕರನತನತರಷಒದನ ಸಹ ನನಗಷ ಗಷಡತತಲಲ. ಅವರನ ಈ ದನವಷಯನನನ ನನಗರನಜ, ಅಣಷಯಡಚನರಲ, ರವ , ಮಡತರ ಮತನತ ಸಒಪತಲ ಎನನನವ 5 ಜನರ ವರನದದ ಹಡಡರನತನತರಷಒದರಷ ನನಗಷ ಗಷಡತತಲಲ ."
27. On perusal of the above evidence, it is clear that witness has categorically stated that he do not know about the plaintiff, and he has no knowledge that against whom he has filed present suit and for what relief. On the other hand if the affidavit of the witness is considered 37 O.S.No.6398/2008 he has made several allegations against plaintiff Ramantha Sa and denied the contention of the plaintiff. So if at the D.W.4 does not know the plaintiff and case of plaintiff then has made all these allegations against the plaintiff is a pint for consideration, it creates doubt about the very conduct of D.W.4, he has deposed as mouth piece of defendant no.3 and stated that defendant No.3 is not the tenant in occupation of the sit property on the other hand he is the owner of it. Therefore his oral testimony is not trust worth arguments cannot be rejected. According to D.W.4 the Will was written by Janardhan Rao Magar i.e. D.W.2 at about 2 p.m. it has been written by somebody in handwriting. But on perusal of Ex.D-124 it is very clear that it has been typed on computer. In the examination-in-chief D.W.4 though contend that at the first instance when he was visited house of Lakshmidevamma along with D.W.2 and 3. but in his cross examination he has deposed contrary to his own affidavit as under.
38 O.S.No.6398/2008
"ನನನನ ಅವರ ಮನಷಗಷ ಮದಲನಷದ ಸಲ ಹಷಡದದನಗ ಲಕಕಕದಷದವಮಮ ಮತನತ ನನನನ ಮನತತ ಇದಷದವವ. 2 ನಷದ ಸಲ ಹಷಡದದನಗ ಮನರನರರನವಲಮತನತ ನನನನ ಇದಷದವವ ."
28. That as per above evidence when D.W.4 visited house of Lakshmidevamma at the first instance she was alone present, this evidence is contrary to his own statement made in the affidavit filed in the form of examination-in-chief. According to this witness Lakshmidevamma initially talked with them, thereafter got prepared Ex.D.124. In his further cross examination he has categorically contend that he has not stated or instructed to prepare his affidavit filed in the form of examination-in-chief, on the other hand he had put his signature to the said affidavit before notary. Such being facts of the case the entire evidence of D.W.4 appears to be not within his knowledge and he has not instructed or got prepared it. Therefore it has no evidenciary value argument cannot be rejected. That DW.5 has been examined, to prove the due execution of the Will under 39 O.S.No.6398/2008 Ex.D.124 dated 28.3.2008 The D.W.5 in his affidavit filed in the form of examination -in-chief has not only deposed about execution of Will under Ex.D-124 by Lakshmidevamma, also deposed about alleged relation of defendant no.3 with Smt.Lakshmidevamma. In his cross examination he has deposed as under.
"ಲಕಕದದಷದವಮಮ ರವರನ ರವಯವರಗಷ ವಲಲನನಮ ಮನಡರನತನತರಷಒದನ ಹಷದಳದದರನ . ಸದರ ವಲಲಅನನನ ನನನನ ನಷಡದಡರನತಷತದನಷ. ಅದನನನ ನನಗಷ ಲಕಕದದಷದವಮಮ ದದ 28-3-2008 ರಒದನ ನನಗಷ ತಷಡದರಸರನತನತರಷ. ಅವರನ ವಲನನಮ ತಷಡದರಸದನಗ ನನನ ಹತತರ ಅವರನ ಒಬಬರಷದ ಇದದರನ . ಅದನನನ ಅವರನ ಆ ದನ 3 ಗಒಟಷಯ ಮದಲಷ ನನನ ಅಒಗಡಗಷ ತಒದನ ತಷಡದರಸರನತನತರಷ. ಲಕಕಕದದಷದವಮಮ ದದ 11-4-2008 ರಒದನ ತದರಕಷಡಒಡರನತನತರಷ. ಆಗ ಅವರನ ಆರಷಡದಗಡವನಗ ಓಡನಡಕಷಡಒಡನ ಇದದರನ. ಲಕಷಕಕದದಷದವಮಮನವರನ ಸಸತತನ ದನಖಲಷಗಳನನನ ಎಲಲ ಇಟಟದದರನ ಎನನನವ ವಚನರ ನಮಗಷ ಗಷಡತನತ? ಎಒದರಷ ಸನಕಕ ವಲನನವಷನ ಯನನನ ಜನನರರನವರ ಬಳ ಇರನವವದನ ಮನತತ ಗಷಡತನತ. ಉಳದ ದನಖಲಷಗಳನ ಎಲಲ ಇಟಟದದರಷಒದನ ಗಷಡತತಲಲ .
29. On perusal of the above evidence, it is quite clear that on 28.3.2008 Smt.Lakshmidevamma was hale 40 O.S.No.6398/2008 and healthy she was capable to walk for herself, she herself came to his shop on that day at about 3.00 p.m. and shown the Will to him. Further in his affidavit filed in the form of examination-in-chief he has deposed about many other things, his evidence appears to be a copy paste stereography type evidence like D.W.2 to 4, all of them have gone to the maximum extent to help the defendant No.3 , even they have gone one step more than D.W.1, admitted all the witnesses are very close friends of defendant No.3 they have tried to extend their helping hand beyond the contention of of defendant No.3. Admittedly the defendant no.3 appeared in this case much earlier but not chosen to file his written statement at the earliest stage of the case. On the other hand he has filed his written statement after entering into the compromise between plaintiff and defendant no.1 & 2. So according to the plaintiff the defendant No.3was observing the proceedings silently their after he has filed his written statement with plea of concocted Will. If entire circumstances is taken into consideration 41 O.S.No.6398/2008 the contention of plaintiff that defendant No.3 in collusion with D.W.2 to 5 got created Ex.D.124 Will seems to be reasonable. Admittedly late Lakshmidevamma had her close relatives from her husband side as well as from her brother such being the facts what circumstances arisen to her to bequeath suit schedule property in favour of defendant no.3 under Ex.D.124 Will. The evidence placed on behalf of defendant no.3 are totally insufficient to establish the fact of due execution of Ex.D.124 Will, so also the compelling circumstances arises to deceased to execute said Will. That learned counsel for defendant No.3 has relied following decisions in support of his oral arguments.
1. IlR 1999 KAR [SN 95] 198 H.Devaraju Vs Halappa
2. 2009 [3] SCC 687 Bharpur Singh and others Vs Shamsher Singh
3. AIR 2001 MADRAS 370 p.sIVASUBRAMANIAM Vs Kathikumar and Another
4. AIR 2001 Raj. 338 Surendra Bhatia V/s Smt.Punam and others.
5. AIR 2002 Punjb & Haryana 243 Parshada Singh V/s Mewa Singh and others. 42 O.S.No.6398/2008
6. ILR 2003 Kar 3153 Robert D Mello V/s D.Mello and another
7. ILR 2008 KAR 2115 Sri.J.T.Surappa and naother V/s Sri.Satchdhnandendra Saraswathi Swamiji.
30. I have gone through the principles laid down in the above referred cases. Though he has relied these citations to disprove the contention of plaintiff but same principles are applicable to defendants case also, that as per the principles laid down in the above case the defendant No.3 has miserably failed to prove that deceased Lakshmidevamma had executed Will under Ex.D.124 on 28.03.2008. It is unreasonable to come to conclusion that Lakshmidevamma had executed Ex.D- 124 Will deed, hence defendant has miserably failed to prove this issue. Accordingly, I have answered this issue in the negative.
31. Issue No.8: According to the defendant No.5 he is in possession of 'D' schedule property as tenant under Lakshmidevamma. Even this fact is not dispute by 43 O.S.No.6398/2008 the plaintiff. The plaintiff in his plaint page No.24 para 24 stated as under.
"Similarly the 4th and 5th defendant are jointly in the occupation of the other shop forming portion of schedule 'A' property more fully described in schedule 'D' as a tenant."
Such being the case, the contentions of the defendant that he is in occupation of the suit 'D' schedule property as tenant is admitted fact. Therefore he has proved this issue. Accordingly, I have answered it in the affirmative.
32. Issue No.9: According to defendant No.1 and 2 Lakshmidevamma had execute Will on 7.12.2007, but defendant No.3 is flatly denied this fact since the matter was settled between plaintiff and defendant No.1 and 2 before commencement of evidence and the defendant No.1 and 2 have not produced said document in this case. The alleged Will, dated: 7-12-2007 has not seen the day light. No efforts have been made to prove the said 44 O.S.No.6398/2008 document. Therefore the contention of the defendant No.3 that it is fabricated created document appears to be reasonable. No reason is available to deny the same. Therefore defendant has proved this issue. Accordingly, I have answered it in the affirmative.
33. Recasted Issue No.2 to 4 and issue No.5:
All the issues are inter related and connected to each other to avoid repetition, I have taken them jointly for consideration.
According to the plaintiff, Smt.Lakshmidevamma during her life time had executed Will dated: 12.3.2008 and after her demise he has become absolute owner of the suit schedule property by virtue of said Will. Therefore he is entitle for vacant possession of 'B, C, and D schedule property also entitle for mesne profits from defendants for use and enjoyment of the said properties. That as already discussed in the above issues it is quite clear that plaintiff has miserably failed to establish due execution of Will under Ex.P-1 stated to be executed by 45 O.S.No.6398/2008 deceased Smt.Lakshmidevamma, and he has became the absolute owner of the suit schedule property by virtue of said Will does not holds good. Therefore he is entitle for vacant possession of "B.C.D." schedule property from respective defendants does not arise at all. Learned counsel for the plaintiff vehemently argued and contended that since defendant No.1 and 2 have entered into compromise with plaintiff accordingly partial decree is passed. That on perusal of the records, it appears that before commencement of evidence and without proving the Will under which plaintiff is claiming his right he has entered into compromise since he has failed to prove due execution of Will itself the partial decree passed by my predecessor in office has no relevancy, under which plaintiff cannot claim any right. That taking into consideration of all these facts and circumstances the plaintiff has failed to prove these issues, he is not entitle for the relief sought in the suit, hence I have answered them in negative.46 O.S.No.6398/2008
34. Issue No.10 :- In the result, I proceed to pass the following;
ORDER The suit of the plaintiff is dismissed with costs.
Draw the decree accordingly.
[Some portion dictated directly on-line to the judgment writer and some portions dictated to the Judgment writer, transcribed & computerized by him, corrected on computer and signed by me then pronounced in the Open Court, dated this the 5th day of February, 2021] (MALLIKARJUNA) XIV Addl. City Civil Judge Bangalore.
ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : Sri.K.A.Ramnathsa
P.W.2 : Sri.K.L.Rama
P.W.3 : Sri.B.N.Shivakumar
P.W.4 : Sri. L.Ashwath
47 O.S.No.6398/2008
List of documents marked on behalf of the plaintiff/s:
Ex.P.1 : Original Will dated: 12-03-2008 Ex.P.2 : Death Certificate of Smt.Lakshmidevamma Ex.P.3 : Death Certificate of Sri.Chinnaswamachar Ex.P.4 & 5 : Khata Extracts Ex.P.7 & 8 : Encumbrance Certificates Ex.P.8 to 10 : Three Tax paid receipts. List of witnesses examined on behalf of the defendant/s:
D.W.1 : Sri.Ravikumar D.W.2 : Sri.N.Janardhan Rao Magar D.W.3 : Sri.Murahari.N. D.W.4 : Sri.Ramanathsha D.W.5 : Sri.Sampath.N.
List of documents marked on behalf of the defendant/s :
Ex.D.1 : Notarized copy of Driving License Ex.D.2 : Insurance certificate Ex.D.3 : Letter issued by ICICI Bank Ex.D.4 to 20 : 17 receipts issued by PGS Insurance company Ex.D.21 to 24 : LIC Receipts Ex.D.25 : Notice issued by LIC Ex.D.26 to 38 : Receipts issued by BWSSB 48 O.S.No.6398/2008 Ex.D.39 to 85 : Electricity Receipts for taking electricity supply Ex.D.86 to 108 : Electricity Bills Ex.D.109 : Report Ex.D.110 : Objection copy Ex.D.111 : Copy of objection Bescom Ex.D.112 & 113 : 2 LIC bonds Ex.D.114 : Notarized copy of Income certificate Ex.D.115 t 120 : Receipts pertains to Gas collection Ex.D.121 : Notarized copy of Gas Pass book Ex.D.122 : Death certificate of Lakshmidevamma Ex.D.123 : Endorsement issued by BBMP Ex.D.124 : Will, dated: 28-03-2008 XIV Addl. City Civil Judge Bangalore.