Bangalore District Court
Sri.H.Sathyanarayana vs H.Vishwanath on 10 February, 2017
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.BAILUR SHANKAR RAMA,
B.Sc., M.A., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 10th day of February 2017.
O.S.No.3052/2010
PLAINTIFF:- Sri.H.Sathyanarayana,
S/o.Late H.Venkataramaiah,
Aged about 57 years,
R/at No.174/71,
2nd B Main Road,
6th Block, Jayanagar,
Bangalore-560 082.
(By Sri.G.Nagaraja, Adv.)
v.
DEFENDANTS:- 1. H.Vishwanath,
S/o.Late H.Venkataramaiah,
Aged about 64 years,
R/at in a portion of
Premises bearing No.206/19,
23rd A Cross, 6th Block,
Jayanagar,
Bangalore - 560 082.
2. H.Ramkumar,
S/o.Late H.Venkataramaiah,
Aged about 59 years,
R/at No.174/7-1,
2nd B Main Road,
6th Block, Jayanagar,
Bangalore-560 082.
2 O.S.No.3052/2010
3. H.Umadevi,
D/o.Late H.Venkataramaiah,
W/o.Ananthapadmanabha,
Aged about 61 years,
R/at No.110, 4th Cross,
Radhakrishna Layout,
Padmanabhanagar,
Bangalore.
4. Sri.Srinivasaraju,
Father name not known
to the plaintiff,
Aged about 58 years,
R/at No.339, 41st Cross,
8th Block, Jayanagar,
Bangalore -560 082.
5. Sri.Mukkod,
Father name not known
to the plaintiff,
Aged about 52 years,
R/at in a portion of
Premises at 1st Floor, No.206,
23rd A Cross,
6th Block, Jayanagar,
Bangalore - 560 082.
6. Sri.Chinnaswamy,
Father name not known
to the plaintiff,
Aged about 50 years,
R/at in a portion of
Premises at 1st Floor, No.206,
23rd A Cross,
6th Block, Jayanagar,
Bangalore - 560 082.
7. Smt.Manjula,
Husband name not known
to the plaintiff,
Aged about 46 years,
R/at in a portion of garage
3 O.S.No.3052/2010
Premises in Property No.206,
23rd A Cross, 6th Block,
Jayanagar, Bangalore - 82.
8. Smt.Yashodamma,
Husband name not known
to the plaintiff,
Aged about 48 years,
R/at in a portion of
Ground Floor at No.206,
23rd A Cross,
6th Block, Jayanagar,
Bangalore - 560 082.
9. Sri.Vigneshwara,
Father name not known
to the plaintiff,
Aged about 50 years,
R/at in a portion of out-house
Premises in bearing No.206,
23rd A Cross, 6th Block,
Jayanagar,
Bangalore - 560 082.
10. Sri.Shankar,
Father name not known
to the plaintiff,
Aged about 53 years,
R/at in a portion of
Premises of out-house
In No.206, 23rd A Cross,
6th Block, Jayanagar,
Bangalore - 560 082.
11. The Manager, DELETED
State Bank of Mysore,
Wherein the running
Account under name and
Style of Sri Venkateshwara
Seva Kendra, 7th Block,
Jayanagar Branch,
Bangalore.
4 O.S.No.3052/2010
12. The Manager, DELETED
Syndicate Bank,
3rd Block,
Jayanagar Branch,
Bangalore.
13. The Manager, DELETED
State Bank of Mysore,
Kanakapura Road Branch,
7th Block, Jayanagar,
Bangalore.
14. The Post Master, DELETED
Office of Post Office,
4th Block, Jayanagar,
Bangalore.
15. Sri Venkateshwara Seva Kendra Trust,
Situated at No.206, 23rd Cross,
6th Block, Jayanagar, Bangalore.
Represented by its Managing Trustee
Mr.H.Vishwanath (1st defendant)
(D1-Sri.T.P.Rajendra Kumar Sougay, Adv.
D2 & D3 - Sri.C.R.Pandurangappa, Adv.
D6 - Sri.K.P.Asokumar, Adv.
D4, D5, D7 to D10 & D15 - Absent
D11 to D14 - Deleted as per Order
dated 04.06.2011
Date of institution of the suit : 30.04.2010
Nature of the suit : Declaration & Partition
Date of commencement of : 12.01.2015
Recording of the evidence
Date on which the Judgment : 10.02.2017
was pronounced
5 O.S.No.3052/2010
Total Duration : Years Months Days
06 09 10
(BAILUR SHANKAR RAMA)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
Bengaluru.
JUDGMENT
This is a suit filed by the plaintiff against the defendants for declaration, partition, enquiry regarding mesne profits and costs.
2. The brief facts as averred in the plaint are that:-
The plaintiff and defendants 1 to 3 are brothers and sister and children of late Sri.H.Venkataramaiah and Smt.Alumelamma. Originally, father of the plaintiff was a native of Honganur Village, Chennapatna Taluk, Ramanagara District. The father of the plaintiff born to late Sri.Venkataramana Shetty was given in adoption to his aunt
- Smt.Venkatalakshmamma, who was none other than elder sister of late Sri.Venkataramana Shetty. Thereafter, father of the plaintiff came down to Bangalore and got employment in Health Department as an Inspector in the 6 O.S.No.3052/2010 year 1944. The plaint A-schedule property i.e., site bearing No.206, extent 40' x 65' was allotted to father of the plaintiff by the then C.I.T.B. in the year 1954. The father of the plaintiff has also inherited sites in his native place - Honganur, Channapatna Taluk, bearing Kaneshumari No.136 and 100/136, in all measuring 20' x 30' and 80'x 30' morefully described in B-schedule. The father of the plaintiff also having savings account and current account in State Bank of Mysore, Jayanagar Branch and SBN Current Account in Syndicate Bank, Jayanagar and Fixed Deposits in the above said Banks and also in Post Office Branch at Jayanagar, morefully described in C-schedule. With the help of his adoptive parents, the father of the plaintiff had constructed main house and 2 out-houses in plaint A- schedule property and later on, additions were made to the ground floor, main such as a first floor and a hall in second floor and a first floor was constructed upon the out-houses. Thus, in all 7 houses were put in plaint A-schedule property. It was let out to the tenants, who are arrayed as defendants 5 to 10 and defendant No.1 is collecting rentals from the tenants amounting to Rs.23,500/- per month from A- 7 O.S.No.3052/2010
schedule property. The father of the plaintiff had inherited vacant house, another house site and one agricultural land at Honganur Village, Chennapatna Taluk. The agricultural land inherited by him has been alienated during 1994, for which the plaintiff and defendants 1 to 3 have consented. The ancestral house property and vacant land at Honganur Village was gifted in favour of defendant No.4 by the father of the plaintiff, who is totally stranger to the plaintiff's family and properties, morefully described in plaint B- schedule. The plaintiff submits that his father retired from service in the year 1975 and after retirement he stayed alone in a portion of A-schedule property for few years. He had developed abnormal activities and unsound mind, lost his remembering capacity. The plaintiff came to know that, his father had executed an alleged Registered Will dated 27.11.1986 bequeathing plaint A-schedule property in favour of defendant No.1 and totally excluded the plaintiff. He has also made provisions for charity and donated 3 portions of A-schedule property. He had founded a Trust which is totally contrary to the alleged Will dated 27.11.1986. He had executed a Registered Gift Deed in 8 O.S.No.3052/2010 respect of Item No.2 of B-schedule in favour of Sri.Srinivasaraju i.e., defendant No.4, who is no way concerned with the family of the plaintiff. Therefore, as it is the ancestral property, execution of Gift Deed is totally illegal. As the plaintiff and defendants 1 to 3 are members of Hindu Undivided Joint Family, having right over plaint A and B-schedule properties and A-schedule property was purchased by utilizing joint family nucleus derived from B- schedule and also amount derived by selling the ancestral properties at Honganur Village. Therefore, the alleged Will dated 27.11.1986 and Gift Deed are null and void and not binding on the rights of the plaintiff. The father of the plaintiff died on 10.09.2009. No partition is effected in all the properties between the plaintiff and defendants 1 to 3. As it is their ancestral and joint family properties, the plaintiff is having 1/4th share in all the properties. He has demanded share during the lifetime of his father, though he had agreed, but not obliged. Thereafter, also he has demanded partition with the defendants 1 to 3, they also refused. He has finally demanded partition on 01.02.2010 9 O.S.No.3052/2010 with defendants 1 to 3, as they refused to effect partition the plaintiff has filed the instant suit.
3. After the service of suit summons, defendant No.1 has appeared before court through his advocate Sri.T.P.Rajendra Kumar Saugay, defendants 2 and 3 through their advocate - Sri.C.R.Pandurangappa and defendant No.6 through his advocate - Sri.K.P.Asokumar. The defendants 4, 5, 7 to 10 and 15 though served, remained absent. The plaintiff got deleted the defendants 11 to 14. The defendant No.1 in his written statement admits the relationship, denied all the allegations made by the plaintiff. The suit is hopelessly barred by limitation. All the parties in the Registered Will Deed dated 27.11.1986, Registered Public Trust dated 07.10.1989, Registered Gift Deed dated 07.06.2004 as plaintiff has sought for a declaration that these are not binding on his right, without arraying them as parties. The present suit is bad for non- joinder of parties. The plaintiff is not at all in possession of the suit schedule property. As such, he ought to have paid court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act. As such, suit is not properly valued 10 O.S.No.3052/2010 and court fee paid is insufficient. Sri.H.Venkataramaiah - father of the plaintiff and defendants 1 to 3 did not inherit anything from his father - Sri.Venkataramana Shetty by survivorship. The said Sri.Venkataramana Shetty was a self made man and from out of savings of his own petty business he had acquired 28 guntas of barren land in Sy.Nos.17 and 18 of Honganur besides a site measuring 32' x 40' at Honganur, morefully described in plaint B-schedule. As father of the plaintiff and defendants 1 to 3 - Sri.H.Venkataramaiah was working as a Health Supervisor in Government of Karnataka, from out of savings of his salary purchased Item No.1 in B-schedule measuring 32' x 40' through a Sale Deed dated 16.05.1956 for a paltry sum of Rs.50/-. From out of his own savings he also purchased from the then C.I.T.B. the site bearing No.206 at Jayanagar, Bangalore and constructed ground floor and part of first floor in A-schedule property. His children were minors then, did not contribute in acquisition of the property or construction of the building. Further, father of the plaintiff was paid a sum of Rs.25,000/- by way of arrears of salary from 1964 to 1969 treating his absence 11 O.S.No.3052/2010 from duty in lumpsum. He retired from service in the year 1975 and got substantial amount by retirement benefits. By using it he had constructed part of first and second floors in A-schedule property and all these constructions were completed before 1986. The plaintiff and defendant No.2 joined service only in 1973-74 and they started residing separately and their earnings were just sufficient for their maintenance and they never rendered financial assistance to improve the properties. The defendant No.1 submits that since 28 guntas of barren land in Sy.Nos.17 and 18 of Honganur was not yielding anything, their father being absolute owner sold it in the year 1993. As his children doesn't have any right in the said property, have rightly gave no objections. By utilizing the said amount and out of his savings and retirement benefits he had constructed building in A-schedule and it is his self acquired property. He submits that after selling Honganur property his father was magnanimous enough to distribute a major portion of the sale consideration received amongst his 4 children. The description given in A-schedule property is wrong. By virtue of Trust Deed dated 07.10.1989, he had made arrangement 12 O.S.No.3052/2010 in respect of A-schedule property. He has executed Gift Deed in respect of Item No.2 of B-schedule property dated 07.06.2004 in favour of defendant No.4. The detail given about accounts and deposits in Banks and Post Office in C- schedule is wrong and imaginary. The rentals received from the tenant, what is alleged is also wrong and imaginary. Out of the advance/mortgage amount which belongs to Sri.Venkateshwara Seva Kendra Trust, a sum of Rs.4,38,000/- is kept in FD besides a sum of Rs.33,130/- in savings Bank in the name of the Trust - Sri Venkateshwara Seva Kendra Trust in Jayanagar 7th Block. Yoganarayana Trust is crediting the rent of Rs.3,000/- per month directly to the account of Sri Venkateshwara Seva Kendra Trust. The occupants of different portions of A-schedule property have to vacate and Trust will have to return them, a sum of Rs.6,50,000/- received by way of advance/mortgage amount. The Trust will have to add Rs.2,00,000/- to FD amount to make good the amount due to the occupants of A-schedule property. Therefore, defendant No.1 contends only a sum of Rs.5,129/- and Rs.19,547/- is standing in the name of Sri.H.Venkataramaiah in his S.B. Account in 13 O.S.No.3052/2010 Jayanagar Branch besides FD of Rs.1,50,000/- in Jayanagar Post Office and a sum of Rs.11,262/- in the very same Post Office. In the said FD in Post Office and Bank, Sri.H.Venkataramaiah bequeathed the same under the Will dated 27.11.1986 for performing annual poojas in Sri.Gopoalakrishna Temple at Magadi and for feeding the devotees and for performing annual Birthday Celebrations in Ramakrishna Ashrama, Basavanagudi, Bangalore and for providing fruits and medicines to poor patients in Government Hospitals on festival days. Rs.5,129/- and Rs.19,547/- standing in S.B.Account is concerned, same has got vested in Sri Venkateshwara Seva Kendra Trust in terms of Trust Deed dated 07.10.1989 executed by Sri.H.Venkataramaiah. Therefore, the claim made by the plaintiff as regards C-schedule property is misconceived. His allegation that Sri.H.Venkataramaiah lost his memory, mental imbalance and Gift Deed and Will Deed executed by him are ab-initio void is false and baseless. He is having 1/4th share in all the items of the properties is false. In fact, Sri.H.Venkataramaiah was hale and healthy, keeping sound mental health and he never suffered mental disability 14 O.S.No.3052/2010 at any point of time in his lifetime. In fact, in the year 1994 he has filed O.S.No.220/1994 against Sri.Thirumalegowda for possession in the Court of Civil Judge (Jr.Dvn.) & JMFC, Chennapatna and gave evidence in the said suit and got decree and successfully conducted R.A.No.58/1997 before the Court of Civil Judge (Sr.Dvn.), Ramanagaram, R.S.A. No.2/2002 before Hon'ble High Court of Karnataka, gave evidence in O.S.No.8/2006 filed by him against Smt.Chikkammani before the Court of Civil Judge (Jr.Dvn.) & JMFC., Chennapatna. He was a man of sound mind throughout. The plaintiff for the reasons best known to him falsely branded him as a man of unsound mind. The father never acted as Kartha of the joint family nor the plaintiff in possession of the property. He never demanded partition during the lifetime of his father or after his death, with defendants 1 to 3. His say that the defendants have refused to effect partition is false. Sri.H.Venkataramaiah being absolute owner of schedule properties having full testamentary power and capacity executed the Will and created Public Trust, executed Gift Deed, are all valid documents, binding on the plaintiff. As such, the claim 15 O.S.No.3052/2010 made by the plaintiff is not sustainable and sought for the dismissal of the same.
4. The defendant No.2 in his written statement admits the plaint genealogy and other averments by the plaintiff. He has further submitted that as regards the allegations made by the plaintiff that deceased father Sri.H.Venkataramaiah executed the alleged Will is concerned, this defendant No.2 was also not in a position to restrain his father from executing the alleged Will as his father was in unsound mind and defendant No.2 has got right to defend his right will only be after the death of his father i.e., on 10.09.2009. The defendant No.2 supports the case of the plaintiff that he is also coparcener with the plaintiff and defendants 1 to 3, they are the joint family members and Class-I heirs of Sri.H.Venkataramaiah and are in joint possession plaint A and B schedule properties. After the death of his father, the plaintiff demanded for partition of his legitimate share in all the suit schedule properties, is admitted by him. The plaint A and B schedule immovable properties and plaint C movable property i.e., cash held in the name of his father, in which the plaintiff and defendants 16 O.S.No.3052/2010 1 to 3 are having share. The defendant No.2 submits that Sri.H.Venkataramaiah during his lifetime has sold the ancestral properties and out of the joint family funds he purchased and improved suit A and B schedule properties and further generated schedule C movable properties out of the income derived from sale of ancestral properties. During his old age and taking undue advantage of his unsoundness of mind, schedule properties have been begotten to the beneficiaries by acts of undue influence, fraud, coercion for the purpose of wrongful gains, without the knowledge, consent and signature of defendant No.2. Since the schedule properties are ancestral joint family properties purchased and developed by utilizing the joint family nucleus, Sri.H.Venkataramaiah had no exclusive independent right to execute Will Deed dated 27.11.1986, alleged Trust Deed dated 07.10.1989 and alleged Gift Deed dated 07.06.2004, as such the above said documents are not binding on the rights of defendant No.2. He further submits that he is also having 1/4th share in the suit schedule properties and seeks an order to declare his share and also enquiry regarding mesne profits.
17 O.S.No.3052/2010
5. The defendant No.6 in his written statement contends that he is not a tenant in respect of portion of first floor of A-schedule property on monthly rental of Rs.3,000/- as alleged by the plaintiff. In fact, Sri.H.Venkataramaiah collected a lumpsum amount of Rs.2,00,000/- from him and allowed him to stay in the property in question on an understanding that he need not pay any rent to the same and would not be entitled for any interest on the sum of Rs.2,00,000/- and would get it back at the time he surrenders the vacant possession of the same to Sri.H.Venkataramaiah. As such, he has not been paying any rentals. After the death of Sri.H.Venkataramaiah, since A-schedule property was vested to Sri Venkateshwara Seva Kendra Trust by virtue of the Registered Will left by Sri.H.Venkataramaiah dated 27.11.1986, same having been confirmed by Registered Trust Deed dated 07.10.1989, he is entitled for refund of Rs.2,00,000/- from the Trust and has agreed to hand over possession to them.
6. The defendant No.12 - Manager, Syndicate Bank, Jayanagar Branch, Bangalore, in his written statement contends that late H.Venkataramaiah had S.B.A/c.0409-203 18 O.S.No.3052/2010 89 (ID No.592876) and a balance of Rs.19,547.35 is with the Bank in the said account. He had not made any person as nominee and no one has claimed the said amount till today and same will be disbursed to the person as directed by the court. He further submits that other than the S.B. Account late Sri.H.Venkataramaiah had the following accounts:-
Sl.
A/c No. Amount Nominee
No.
i 0409 403 5216/3 Rs.1,35,915.00 Vinay M.D.
ii 10407 5216/2 Rs.1,60,000.00 Vishwanath
iii 10407 5216/5 Rs.50,000.00 Vishwanath
iv 0409/404/1858/2 Rs.1,25,550.00 Vinay M.D.
No.9415
v CD 409/251/8398 Rs.40,273.49 Vishwanath
Nom No.10099343
19-12-2009
He has made respective nominees and all these aforesaid amounts have been settled and paid to nominees as per the Banking Rules.
7. Likewise, defendant No.14 - Post Master, Jayanagar Branch Post Office, in his written statement submitted that late H.Venkataramaiah has invested money in following accounts:-19 O.S.No.3052/2010
a) Senior Citizen Savings Scheme Account No.60331 for a sum of Rs.2,00,000/- with nomination in the name of Sri.H.Viswanath was closed on 06.11.2009.
b) Senior Citizen Savings Scheme Account No.60568 for a sum of Rs.1,06,000/- with nomination in the name of Sri.H.Viswanath was closed on 06.03.2010.
c) Senior Citizen Savings Scheme Account No.61054 for a sum of Rs.1,50,000/- with nomination in the name of Sri.H.Viswanath was closed on 01.12.2009
d) The Monthly Income Scheme Account No.219152 for a sum of Rs.72,000/- with nomination in the name of Sri.H.Viswanath was closed on 01.12.2009
e) Senior Citizen Savings Scheme Account No.61031 for a sum of Rs.1,50,000/-
without nomination and account is not closed as on the date.
f) Savings Bank Account No.2421485 without nomination with the balance of Rs.14,637/- and the account is not closed as on the date.
contends that allegations made are false. Court fee paid is insufficient and prayed that suit be dismissed with costs. 20 O.S.No.3052/2010
8. Basing on the rival pleadings the following issues are framed:-
ISSUES
1. Whether the plaintiff proves that, the suit schedule properties are the joint family properties?
2. Whether defendant No.1 proves that, the suit is bad for non-joinder of necessary parties?
3. Whether defendant No.1 proves that, the suit is barred by limitation?
4. Whether defendant No.1 proves that, the suit is not properly valued and court fee paid is insufficient?
5. Whether the plaintiff is entitled for relief as sought for?
6. What order or decree?
9. The plaintiff got himself examined as PW-1 and got marked Ex.P1 to P20. The defendant No.1 got himself examined as DW-1 and defendant No.2 as DW-2 and got marked Ex.D1 to D25.
10. After the closure of the evidence, arguments were heard.
21 O.S.No.3052/2010
11. My answers to the above issues are as under:-
Issue No.1:- In the negative.
Issue No.2:- In the affirmative.
Issue No.3:- In the affirmative.
Issue No.4:- In the affirmative.
Issue No.5:- In the negative.
Issue No.6:- As per final Order.
For the following:
REASONS
12. Issue Nos.1 & 2:-
For the sake of convenience these two issues are taken up together for discussion to avoid repetition of facts and evidence.
13. The pleaded case of the plaintiff is that, suit schedule properties are the joint family properties of the plaintiff and defendants 1 to 3. Plaint A-schedule property was purchased by the father of plaintiff -
Sri.H.Venkataramanaiah and by utilizing the joint family funds and nucleus he has constructed building in A-schedule property. The plaintiff and defendant No.2 started earning from the year 1973-74 and they also contributed for 22 O.S.No.3052/2010 construction of the building. Plaint B-schedule property was derived by Sri.H.Venkataramanaiah through his adoptive mother - Smt.Puttalakshmamma @ Smt.Venkatalakshmamma and also with the financial assistance by the natural father of Sri.H.Venkataramanaiah by name Sri.Venkataramana Shetty. Therefore, that is also ancestral joint family property. C-schedule fixed deposits in the Banks, Post Offices, Savings Bank Accounts are the money invested by Sri.H.Venkataramanaiah from out of his savings from his earnings and as well as income derived from agricultural lands and ancestral properties. Therefore, C-schedule property is also joint family property. As such, in all the plaint A, B and C-schedule properties, the plaintiff is having 1/4th share.
14. The contention of the plaintiff is fully supported by defendant No.2 i.e., one of his brother. The defendant No.3 is the married sister of the plaintiff and defendants 1 and 2. The defendant No.1 denied the contention of the plaintiff and according to him, his father was the adopted son to Smt.Puttalakshmamma. In 1944, his father Sri.H.Venkataramanaiah joined service in Health 23 O.S.No.3052/2010 Department as Supervisor and in the year 1954, he had applied for a site at Jayanagar and purchased site from the then C.I.T.B. out of his own savings and also by raising loans from the Society and Bank, he had constructed house in A-schedule property and construction was taken out in a phased manner and completed in the year 1986. At the time when ground floor and first floor was constructed and acquisition of site, all his children were minors, they did not contribute anything. Though through his adoptive mother - Smt.Puttalakshmamma he had one site and house and one agricultural land, but they are barren land, doesn't yield any income. Therefore, suit A-schedule property is the exclusive self acquired property of his father. He retired from service in the year 1975. Out of his savings and retirement benefits received C-schedule deposits were made. Only half portion in plaint B-schedule property that was derived from Smt.Puttalakshmamma and remaining half was purchased by him from his natural father, therefore that property is also absolute property of Sri.H.Venkataramanaiah. He further stated in his evidence that during his lifetime his father - Sri.H.Venkataramanaiah 24 O.S.No.3052/2010 had executed Registered Will Deed dated 27.11.1986 and he has given share to defendants 1 to 3. The plaintiff married a girl from different caste against the Will of the father and started residing separately long back after marriage, therefore he has not given any share in his property. Further, he has given major portion of A-schedule property by creating a Trust by name Sri Venkateshwara Seva Kendra Trust and confirmed by Registered Trust Deed dated 07.10.1989. Even in respect of B-schedule property, he has gifted the said property through a Registered Gift Deed dated 07.06.2004. Therefore, he had every right to execute Will Deed, creating Trust and Gift Deed in respect of his absolute properties. The plaintiff cannot question his propriety. During the lifetime of his father himself PW-1 and defendant No.2 were aware of the creating of Trust by the father and execution of Gift Deed and Will Deed. Without challenging the same during the lifetime of the father, on imaginary cause of action, without having any manner of right, now filed the instant suit for partition. In fact, no property is available to effect partition as alleged by 25 O.S.No.3052/2010 the plaintiff and according to defendant No.1, suit is liable to be dismissed.
15. PW-1 in his examination-in-chief has deposed the facts on par with the plaint averments and he has produced documents at Ex.P1 to P20 in support of his contentions. The very same documents were produced by the DW-1 also in his evidence and DW-1 has produced Ex.D1 to D12. DW.2 is the elder brother of the plaintiff i.e., one Sri.H.Ramkumar, in his evidence has supported the case of the plaintiff and has produced Ex.D13 to Ex.D25 in his evidence.
16. If we read the evidence of PW-1 and DW-2, they assert that their deceased father - Sri.H.Venkataramanaiah was not having any right to execute Registered Will Deed - Ex.D3 dated 27.11.1986 and Registered Gift Deed in respect of B-schedule property as per Ex.D5 dated 07.06.2004 and Registered Public Trust Deed dated 07.10.1989 as per Ex.D10. Even DW-2 has deposed that they are not binding on the rights of legal heirs of deceased Sri.H.Venkataramaiah. For the reasons that, all A, B and C- 26 O.S.No.3052/2010 schedule properties are the joint family properties of the plaintiff and defendants 1 to 3. The deceased father did not have any independent exclusive right to execute the above said documents. It doesn't bind on the right of DW.2 and PW.1. DW.2 also claimed share in all the plaint schedule properties. Therefore, heavy burden is on the plaintiff to establish that plaint A and C schedule properties are the joint family properties, acquired, developed by utilizing the joint family funds, income derived from ancestral properties and B-schedule property is also a joint family property derived through Smt.Venkatalakshmamma and they are entitled to get 1/4th share in it.
17. The plaint genealogy as per Ex.P1 is as follows:-
Sri.H.Venkataramanaiah (Deceased) Smt.Alumelamma (Deceased)
------------------------------------------------- H.Vishwanath H.Umadevi H.Ramkumar H.Sathyanarayana
18. The genealogy as per Ex.D23 is as follows:-
Smt.Puttalakshmamma Elder sister of Sri.Venkataramana Shetty Sri.H.Venkataramanaiah (Late) (Adopted son of Smt.Puttalakshmamma) 27 O.S.No.3052/2010 Smt.Alumelamma (Late)
------------------------------------------------- H.Vishwanatha H.Umadevi H.Ramakumar H.Sathyanarayana (Def.No.1) (Def.No.2) (Def. No.3) plaintiff Though in Ex.D23 DW-2 has also given the Genealogical Tree of the natural father Sri.H.Venkataramanaiah by name Sri.Venkataramana Shetty. But as it is an admitted fact that Sri.H.Venkataramanaiah was given in adoption to Smt.Venkatalakshmamma @ Smt.Puttalakshmamma, who is the elder sister of Sri.Venkataramana Shetty, who was the widow, after the death of her husband - Sri.Venkata Setty, had taken adoption of Sri.H.Venkataramanaiah, son of Sri.Venkataramana Shetty, as Sri.Venkata Setty died issueless. DW-2 in the cross-examination has clearly admitted that when his father was 3-4 years old he was given in adoption to Smt.Puttalakshmamma through Registered Adoption Deed and he has clearly admitted that his natural grand-father - Sri.Venkataramana Shetty had other sons and daughters apart from his father. He hasd admitted that after the adoption of his father - Sri.H.Venkataramanaiah, he had no connection whatsoever with his natural father's family. Quite obviously 28 O.S.No.3052/2010 Smt.Puttalakshmamma, who was the widow, had taken him in adoption through Registered Adoption Deed when he was hardly 3-4 years old and sever all relationship with his natural family. Therefore, question of deriving any income from Sri.Venkataramana Shetty by the father of PW-1 doesn't arise at all. It is only from the side of his adoptive mother, whatever the property he has derived only need be taken into consideration to appreciate, whether plaintiff and defendant No.2 are justified in contending that he had sufficient joint family nucleus to purchase A-schedule site and to construct building and also sufficient money in his hands to deposit in FD what is stated in C-schedule.
19. It is not in dispute that Sri.H.Venkataramanaiah joined service in the Health Department in the year 1944 and came to Bangalore and retired from service in the year 1975 and he died while residing in A-schedule house on 10.09.2009 as evidenced by his Death Certificate - Ex.P2. PW-1 has produced Ex.P3 - Katha Extract obtained from BBMP in respect of A-schedule property situated at Jayanagar, Old No.206, New No.19, measuring 40' x 65', comprising 10 pavements with garage, bounded on 4 sides, 29 O.S.No.3052/2010 morefully described in the schedule, is standing in the name of Sri.H.Venkataramanaiah as evidenced by Katha Extract - Ex.P3. In respect of plaint B-schedule property bearing Khaneshumari 100/136, measuring East to West:80 feet and North to South:32 feet, within the boundary morefully described in the schedule, was standing in the name of Smt.Puttalakshmamma W/o. Sri.Venkata Shetty i.e., adoptive mother of Sri.H.Venkataramanaiah. Therefore, the contention of the plaintiff and DW-2 that, as far as plaint B- schedule property is concerned, as it was derived through the adoptive mother of Sri.H.Venkataramanaiah, as such he has no right to execute the Gift Deed in respect of the said property.
20. In the evidence of PW-1 he has stated that his father - Sri.H.Venkataramanaiah succeeded an agricultural land bearing No.17/4, measuring 28 guntas, present B- schedule property bearing No.100/136 situated at Honganur Village, Chennapatna Taluk, Ramanagara District, as such it is an ancestral property, he is having right in the said property. Equally he contends that Sy.No.17/4 was an agricultural bagayath land Sri.H.Venkataramanaiah derived 30 O.S.No.3052/2010 income from agricultural land, by utilizing it he has constructed building in A-schedule property. His evidence is supported by DW-2 in his evidence by stating that at the time of acquiring site from C.I.T.B. i.e., A-schedule property in the year 1954, Sri.H.Venkataramanaiah was deriving salary of hardly Rs.45/- per month, that was not sufficient to purchase the property. Therefore, notices were issued to him. In his cross-examination at page No.20 and 21, he has deposed that during 1952 allotment was made in respect of A-schedule property by the then C.I.T.B. in favour of Sri.H.Venkataramanaiah, at that time his father had paid Rs.1,445/- in instalments. His father was working as Health Inspector, joined service in the year 1944 itself. He admits that in the year 1954 when the site was acquired by father, he was hardly a boy of 4 years. Therefore, his say that his father was hardly drawing Rs.45/- per month and from agricultural source from the ancestral property he has derived income, that was utilized for acquiring the property as well as for construction of the building, cannot be appreciated. As he was a boy of 4 years, may not be in 31 O.S.No.3052/2010 a position to understand what are all the facts transpired at the relevant point of time.
21. DW-2 in his evidence has produced Ex.D19 - certified copy of the Gazette dated 31.01.1957, to show the pay-scale of deceased Sri.H.Venkataramanaiah at the relevant point of time. According to him, on the date of acquisition of A-schedule property at Jayanagar, Bangalore, in the year 1954, he was hardly drawing salary of Rs.45/- per month. Ex.D20 is the Notification dated 29.06.1961. Ex.D21 is the Notification dated 16.02.1970 issued by Finance Department, showing Mysore Civil Services Revised Pay Rules, 1970. These documents are produced to show that sufficient money was not with the Sri.H.Venkataramanaiah to purchase A-schedule site and also put up construction therein. No doubt, DW-2 has produced Ex.D15 - Notice dated 27.05.1953 issued by Chairman, C.I.T.B., Bangalore, directing him to pay cost of the site within 15 days of receipt of the notice. Ex.D16 is the Notice dated 31.05.1954, stating that inspite of giving final warning notice as a last chance requesting him to pay the balance amount and directing him to pay it within a 32 O.S.No.3052/2010 week, failing which allotment will be cancelled or forfeiting 12½% of his value site. May be, as he was a Government Servant, has not paid the balance amount of site amount to C.I.T.B. and such notices were issued. It doesn't mean that, he doesn't have sufficient money even to pay the value of the site. DW-2 has deposed to the effect that, for that his natural father Sri.Venkataramana Shetty, who was owning sufficient properties and was running business, has financially helped him in acquiring the property. Because, in the cross-examination of DW-2, he has deposed that natural father of Sri.H.Venkataramanaiah had possessed vast properties and rich agriculturist in Alagoor Hobli, Doddagowdadoddi Village and even till today his grand- father's property was in existence. He was running a business in cloth and textile and also doing money lending business. Therefore, DW-2 wanted to say that natural father of Sri.H.Venkataramanaiah had financially helped him in purchase of A-schedule property, as the salary drawn by him was insufficient. Here, it is an admitted fact that after Sri.H.Venkataramanaiah was given in adoption at a very tender age to Smt.Puttalakshmamma, he had no concern 33 O.S.No.3052/2010 whatsoever with his natural father's family. Apart from it, PW-1 has not at all pleaded anything in this regard, not produced any documents. It is only improved in the evidence of DW-2 and it is an admitted fact that the natural father of Sri.H.Venkataramanaiah by name Sri.Venkataramana Shetty had sons and daughters, morefully described in the separate Genealogical Tree annexed to Ex.D23. May be, natural father of Sri.H.Venkataramanaiah possessed several properties and agricultural lands, now in possession of his legal heirs, Sri.H.Venkataramanaiah has nothing to do with those properties. When he himself admits that after adoption Sri.H.Venkataramanaiah did not had any concern with the natural father's family. Until and unless, there is a foundation in the pleadings and sufficient proof is given that natural father had financially contributed money in acquiring the site as well as construction of house in suit schedule property, neither PW-1 nor DW-2 cannot claim that ancestral joint family nucleus was utilized in acquiring A-
schedule property. For the simple reasons, the effect of
adoption of Sri.H.Venkataramanaiah by
34 O.S.No.3052/2010
Smt.Puttalakshmamma, who was widow, no doubt she was the elder sister of natural father of Sri.H.Venkataramanaiah. But already her husband - Sri.Venkata Shetty died issueless, she had chosen to take father of plaintiff in adoption while he was 4-5 years old through Registered Adoption Deed. Adoption is an admitted fact. Therefore, the effect of adoption to the family of Smt.Puttalakshmamma and Sri.Venkata Shetty, severing the relationship with his natural father's family. Therefore, DW-2 cannot contend that as the natural father of Sri.H.Venkataramanaiah financially assisted, therefore joint family nucleus was utilized. Because, as he was being given in adoption, he was not the member of the family of Sri.Venkataramana Shetty. In the first place, plaintiff and defendant No.2 have failed to prove that natural father of Sri.H.Venkataramanaiah had financially helped him in acquiring the property. Even under law, there is no justification for them to contend as the natural father of Sri.H.Venkataramanaiah financially helped, therefore ancestral joint family nucleus was utilized in acquiring A- 35 O.S.No.3052/2010 schedule site and construction of building therein and it is a joint family property.
22. DW-2 in his cross-examination admits the contents of Ex.P20 - Certified copy of Sale Deed pertains to A-schedule property. Therefore, A-schedule site was allotted to him and he has paid Rs.1,445/- towards the value of the site. Equally, Ex.D17 - Certified copy of Application submitted for grant of site by Sri.H.Venkataramanaiah dated 23.06.1949, shows that he was working as a Health Inspector in Municipal Office, Bangalore City. He has stated in Column No.7 that he had divided from the family and in Column No.10 he has stated that out of his income from his land produce at his native. DW-2 wanted to take advantage of the said narration that his salary was insufficient and he himself has declared that out of income from the land at Chennapatna, he intends to get the site as well as construct the house. Here, as he came to Bangalore in the year 1944 and joined service, applied for grant of site to construct a house at Bangalore. Because he was not having any residential site at Bangalore then, while showing it he made mention about the property 36 O.S.No.3052/2010 held by his adoptive mother. May be, the properties held by adoptive mother yield income, mere giving such declaration we can't draw an inference that, that income was utilized in acquisition of A-schedule site and construction of the building. When it is the specific case of defendant No.1 that the landed properties of adoptive mother - Smt.Puttalakshmamma in Honganur Village, Chennapatna was only a barren land, was not the property yield income. Even otherwise, it is considered that as per the admission in the cross-examination the adoptive mother
- Smt.Puttalakshmamma had resided in the house at Honganur and was in possession of landed property i.e., 28 guntas in Sy.No.17/4. The plaintiff and DW-2 must prove before the court that Sy.No.17/4 held by adoptive mother was actually being looked after by Sri.H.Venkataramanaiah and he derived income out of it. Because, 14 guntas of land in Sy.No.17/4 by creating usufructuary mortgage in favour of Rahaman Sab Rs.300/- was taken and loan was availed for Rs.2,800/- on 25.12.1958 and Rs.5,000/- was availed from Mysore Provisions Co-operative Society, Shankar Mutt Road, for the purpose of construction of building is not 37 O.S.No.3052/2010 disputed. It has come in the evidence that those loans were cleared by Sri.H.Venkataramanaiah by the year 1986. Because these facts are suggested by the learned counsel for the plaintiff to DW-1. PW-1 in the cross-examination while confronted the Registered Mortgage Deeds dated 17.12.1957 and 28.12.1958 by the Sri.H.Venkataramanaiah. It indicative of the fact that for the purpose of construction of building he had availed the loan by mortgaging the property, thus stands proved. PW-1 in the cross-examination admits the availment of such loans by mortgaging the property for construction of ground and portion of first floor. It has come in the evidence that he started construction in the year 1956-57 and according to DW-1 he has completed the building in a phased manner in the year 1986. Whereas, DW-2 is over enthusiastic by stating that even though his father has constructed the building in a phased manner is true, but he has completed the building according to him in the year 1994. It is elicited from the mouth of DW-2 that after completion of their education, plaintiff and DW-2 joined job and started earning from 1974-75 onwards. It is also elicited that DW-2 after 38 O.S.No.3052/2010 marriage started residing separately and even in the cross- examination he has stated that as there was some difference of opinion between himself and his father, till his death he did not visit A-schedule property and he doesn't know about display of boards and other things in A-schedule property. That means, admitted fact in this case is that Sri.H.Venkataramanaiah had performed the marriage of his daughter - defendant No.3 with a bridegroom of their own caste and she has been residing in her husband's house. DW-1 has stated that abutting to the suit A-schedule property, she has purchased another property and now residing therein, because father has given one portion of A- schedule property under the Will in favour of defendant No.3 i.e., his daughter. Likewise, the father had performed the marriage of DW-1 and DW-2 with the bride of their own caste, is not in dispute. It is only the plaintiff had married inter-caste marriage with a girl of his choice against the wish and will of the father. Though he resided along with the father in one portion of the house and it has come in the evidence that as he had married with the girl of different caste, father did not like it, that is the reason he had driven 39 O.S.No.3052/2010 him out from suit A-schedule property. Though he wanted to say that till 2004, he resided in the suit schedule property, but has not produced any electoral card, voters list and ration card to prove that he resided even after marriage in the portion of suit A-schedule property. Whatever may be, sufficient evidence is not let in by DW-2 and PW-1 that they contributed money in construction of the building in A-schedule property. No cogent evidence worth to believe the said contention of PW-1 and DW-2 is brought on record. DW-1 has stated that PW-1 and DW-2 started residing separately, they did not contribute any money while construction of the building. They themselves failed to prove and establish that they resided along with the father till the completion of the building in the year 1986 and evidence goes to show that they resided separately. Obviously, Sri.H.Venkataramanaiah was in Government Servant, retired in the year 1975, he had received sufficient amount towards pensionary benefits. Also it is an admitted fact by DW-2 and PW-1 that from 1964 to 1969 Sri.H.Venkataramanaiah did not attend the duty, subsequently period of absence was treated as 40 O.S.No.3052/2010 absence and lumpsum amount of Rs.25,000/- was paid to him. It has come in the evidence that in the year 1957-58 he had raised loan for construction of the building and thereafter also in a phased manner he has constructed. After the retirement also by utilizing the pensionary benefits received by him and amount received towards rentals from tenants and lease amount received, he had put up second floor and third floor to the main building and first floor in the out-house. The plaintiff and defendant No.2 are not justified in contending that joint family nucleus was utilized in acquisition of A-schedule site and construction of the building.
23. In the cross-examination of PW-1, he admits that 28 guntas of agricultural land in Honganur Village was sold by his father in the year 1993. But denied the suggestion that as it was not produced any yield and income his father had sold it. In the evidence of DW-1, he has deposed that the said 28 guntas of land was a barren land and in the year 1962 Smt.Puttalakshmamma came and started residing along with her adopted son, nobody were there to look after the property and doesn't yield any income, that is the 41 O.S.No.3052/2010 reason his father has sold the property for a consideration of Rs.32,000/-. From out of the consideration received, he was gracious enough to distribute the major portion of it amongst his sons. Though DW-2 had denied the suggestion, but documents produced would go to show that the said 28 guntas of land was sold for a consideration of Rs.32,000/-. DW-2 wants to say that, that amount was utilized in construction of the building, but not given any independent evidence to prove the same. Merely because to Ex.D13 - Registered Sale Deed the consent signatures of all his sons were taken, doesn't mean that it is the ancestral property and their right in the property was recognized by the father. To avoid further consequences with abundant caution their signatures were taken. As it is the positive case of DW-1 that construction was completed in 1986 itself, there was no question of utilizing that money for construction of the building by him as it was sold in the year 1993. It appears that only to cover that DW-2 has deposed that building was completed in the year 1994. But he was not residing along with his father then, is an admitted fact. Further, when evidence both oral and documentary are 42 O.S.No.3052/2010 sufficient to gather that Sri.H.Venkataramanaiah had sufficient income out of his job, savings, pensionary benefits and in a phased manner he has constructed the building. Therefore, by selling 28 guntas of land, derived from his adoptive mother in the year 1993 for a consideration of Rs.32,000/-, that was utilized in construction of building by Sri.H.Venkataramanaiah, doesn't arise at all. Such contentions cannot be believed. On the contrary, it supports the case put forth by DW-1.
24. In the cross-examination of DW-2, he has deposed that construction of A-schedule building was completed by 1994 based on Ex.D13 recitals, wherein it is only stated that 28 guntas of land was derived by him through his ancestors and in his possession and the said bagayath land was a barren, that is the reason he sold it as it is not possible for him to cultivate and to utilize it where he is residing. It doesn't mean that for the purpose of construction of building in A-schedule property that was sold. Because he has completed the building in the year 1986 itself. Such an inference cannot be drawn. More over, even DW-2 doesn't know what exactly is the B- 43 O.S.No.3052/2010 schedule property. According to him 28 guntas of garden land, a house and vacant site is the B-schedule property. in page No.23 of the cross-examination, he has deposed that B-schedule property situated at Honganur, Chennapatna Taluk consists of garden land of 28 guntas and a residential house. But in fact, B-schedule property is the khaneshumari house site and not a garden land, because 28 guntas of land in Sy.No.17/4 was sold on 02.12.1993 as per Ex.D13. In the over anxiety of supporting the case of PW.1, DW-2 has deposed a false story can be gathered.
25. Even B-schedule property bearing No.136 of Honganur Village was leased to the tenant and Sri.H.Venkataramanaiah filed a suit at O.S.No.220/1994 for seeking vacant possession of the said property and lease amount. After contest that was decreed as evidenced by certified copy of judgment - Ex.D9. It reveals that, Sri.H.Venkataramanaiah had executed Mortgage Deed in favour of one Sri.H.R.Usman Khan dated 22.10.1962, delivering the possession of the mortgaged property and it was in his possession till 12.06.1985. On 12.06.1985 after redemption of mortgage, plaintiff - Sri.H.Venkataramanaiah 44 O.S.No.3052/2010 took possession. Again on 18.06.1985 it was leased to Sri.Manchegowda on monthly rental of Rs.200/- and on his death, it was in possession of the defendants in that suit. That is the reason, for recovery of possession he has filed the suit.
26. Ex.P7 is the certified copy of Mortgage Deed dated 19.12.1972 in favour of Sri.Rahaman Khan S/o.Mastan Khan is produced. That means, that property was not in possession since 1962 till O.S.No.220/1994 was reached its finality. That RA.No.58/1997 before Sr.Civil Judge, Ramanagar, RSA.No.2/2002 before the Hon'ble High Court of Karnataka. That means, income from plaint B- schedule property was not there in the hands of Sri.H.Venkataramanaiah, what is alleged by DW-2. Ex.D18 is the certified copy of the Registered Sale Deed dated 16.05.1956, which reveal that in respect of B-schedule property is concerned, the western half portion of the house and courtyard was sold by natural father of Sri.H.Venkataramanaiah i.e., Sri.Venkataramana Shetty for Rs.50/- in favour of Sri.H.Venkataramanaiah. That means, remaining half portion was of the adoptive mother - 45 O.S.No.3052/2010 Smt.Puttalakshmamma. It indicative of the fact that, half portion of B-schedule property was also purchased by Sri.H.Venkataramanaiah and it is his absolute property as he has sufficient funds in his hands. Only eastern half portion of suit B-schedule property was derived by him through his adoptive mother. As such, the say of plaintiff and DW-2 in particular that their natural grand-father had purchased B-schedule property in the name of Sri.H.Venkataramanaiah and it was given with a condition that he should not alienate the property to others, cannot be appreciated at all. Therefore, one thing can be gathered from these documents that he is the absolute owner of half portion of B-schedule property and remaining half portion is derived through his adoptive mother -
Smt.Puttalakshmamma.
27. DW-2 has also stated that his father was not keeping sound mental health. He was arrogant, every time he was bossing on his wife and children, because of his torture in the year 1975 his mother - Smt.Alumelamma committed suicide. The said Smt.Alumelamma has brought Rs.5-000/- as Stridhan at the time of marriage. After the 46 O.S.No.3052/2010 death of his mother jewellery left by her were in the hands of the father, by selling it, utilizing the said amount Sri.H.Venkataramanaiah constructed the house also, cannot be appreciated. Because no evidence is produced to show that his father was not keeping sound mental health or his bossing nature, no independent witness is examined. He has not given records to show that Smt.Alumelamma brought Rs.5000/.- as Stridhan at the time of her marriage. Because there is no basis for him to depose the said fact, which happened even much previous to his birth. He has not given any particular details in the written statement schedule about the ornaments in the hands of his father belonged to his deceased mother. Imaginarily a story is knitted. The plaintiff has not stated anything in this regard. Therefore, that allegation also cannot be appreciated at all.
28. Even DW-2 in his cross-examination has admitted that Smt.Puttalakshmamma came to Bangalore leaving B- schedule property, thereafter nobody had cultivated. Therefore, one thing is clear that 28 guntas of agricultural property that was sold for Rs.32,000/- by Sri.H.Venkataramanaiah in the year 1993 under Ex.D13, 47 O.S.No.3052/2010 because as nobody have cultivated and not attended, it doesn't yield any income. But DW-2 cannot take advantage that he has recited that the reasons showed for selling the property was to utilize the same at the place at Bangalore to his convenience. Even though, he had denied that father had distributed the sale proceeds amongst his sons. But DW-1 has stated the said fact. Whatever may be, the evidence is not sufficient to gather that there was sufficient income from agricultural source from ancestral property to construct house in A-schedule property. There is no income from B-schedule property can also be gathered. Because the western potion was purchased by Sri.H.Venkataramanaiah and Smt.Venkatalakshmamma @ Smt.Puttalakshmamma is having eastern half portion and it devolved on him on her death in the year 1962. Therefore, the cumulative effect of entire evidence brought on record disproves the contentions raised by DW-2 that joint family nucleus was utilized in acquisition of A-schedule site and to construct the building. It can be said that it is the absolute property of Sri.H.Venkataramanaiah, he himself has acquired the site out of his own money and constructed the 48 O.S.No.3052/2010 house. Even from B-schedule property, there was no income worth to believe that, that was utilized for construction of building. For the reasons discussed hereinabove.
29. As he was the adopted son to Smt.Puttalakshmamma, while he was hardly about 3-4 years old and in the previous litigation and in Sale Deeds also, there is reference with regard to adoption and it is an undisputed fact. Therefore, once he has severed from the family of his natural father - Sri.Venkataramana Shetty by virtue of adoption by Smt.Venkatalakshmamma @ Smt.Puttalakshmamma. Even if the alleged say of DW-2 is concerned, natural father had financially helped, defendant No.2 or the plaintiff cannot contend that nucleus from the ancestral joint family property was utilized.. In the first place, that has not been proved. Even otherwise also such defence is not available.
30. Next question is that in Honganur, Chennapatna Taluk 28 guntas of agricultural land was possessed by Smt.Puttalakshmamma. Till her death she has enjoyed the 49 O.S.No.3052/2010 property. Here, she is the wife of late Venkata Shetty. She has taken Sri.H.Venkataramanaiah in adoption after the death of her husband - Sri.Venkata Shetty. Therefore, the property derived by her through her husband, who died issueless, devolved on her and such property by virtue of Section 14(1) of the Hindu Succession Act becomes her absolute property. Even the eastern half portion in B- schedule property was held by her as her absolute property. Therefore, even if in the previous litigation in the evidence before the court what is made much by the learned counsel for the plaintiff in Ex.P13 that it was the ancestral property and he has succeeded the suit property from his mother, cannot be taken advantage by defendant No.2. As he being the son of adoptive mother - Smt.Puttalakshmamma even if any property derived from her source, as it is her absolute property, subsequently Sri.H.Venkataramanaiah was adopted by her. Therefore, though he has become member of family of Smt.Puttalakshmamma and her husband - Sri.Venkata Shetty, but automatically property cannot devolve on him. In this view of the matter, half of B- schedule property was purchased by him, remaining half 50 O.S.No.3052/2010 was derived by him on the death of his adoptive mother as he is the sole surviving heir, being adopted son under Section 15(1) of the Hindu Succession Act. As such, grandsons cannot lay hands to inherit that property. Because, it was held by adoptive mother as her absolute property. Even, agricultural land that was sold in the year 1993, the plaintiff and DW-2 cannot claim that they inherited the property and that amount was utilized for construction of house and joint family nucleus was utilized. Because, the effect of adoption severing the status from the natural father - Sri.Venkataramana Shetty, the present children of Sri.H.Venkataramanaiah cannot inherit any property through Sri.Venkataramana Shetty. Even otherwise, their contention that ancestral joint family nucleus was utilized in purchase of A-schedule property and construction of the house, thus falls to the ground.
31. Therefore, even with regard to B-schedule property is concerned, on the death of Smt.Puttalakshmamma he has become absolute owner of that property, having every right to dispose the property according to his whims and wish. Likewise, for the detailed 51 O.S.No.3052/2010 reasons recorded hereinabove suit A-schedule property also is the exclusive absolute property of Sri.H.Venkataramanaiah, has got every right to deal with it in accordance to his whims and wish.
32. Very strangely even in the pleadings of the plaintiff and in the written statement fled by defendant No.2, it is not their case that they have inherited the property from their ancestors. Cleverly it was stated that joint family nucleus was utilized in construction of the house and in acquisition of suit schedule site. No such joint family was existed. Therefore, it is needless to say that the arguments canvassed by the learned counsel for the plaintiff that suit property was purchased with the assistance of adoptive parents and also financial assistance given by natural father of late Sri.H.Venkataramanaiah, cannot be appreciated. The plaintiff failed to prove that the suit schedule properties are the joint family properties.
33. In the evidence of PW-1, he has stated that after the death of father, he has learnt that his father Sri.H.Venkataramanaiah had executed Registered Will Deed 52 O.S.No.3052/2010 dated 27.11.1986. He has produced the certified copy of the Will Deed as per Ex.P18. On the strength of Will Deed, subsequently he has executed a Registered Trust Deed as per Ex.P5 dated 07.10.1989 in respect of major portion of A-schedule property was given to Trust to carry out its activities. Again in respect of B-schedule property, he has executed Registered Gift Deed dated 07.06.2004 in favour of Trust. He has produced the certified copy of same as per Ex.P19. He has deposed that all these three registered documents executed by his late father -
Sri.H.Venkataramanaiah are at the instigations of the defendants 1 to 10 by threat, coercion etc., As such, same are null and void in the eyes of law and not binding on his rights in the suit schedule properties. The thinking of DW-2 about the joint family and the ancestors itself doesn't have backing of Hindu Law. For the simple reason, they claim that suit B-schedule property derived from the adoptive mother of Sri.H.Venkataramanaiah by name Smt.Puttalakshmamma and income from the ancestors property was utilized in acquiring A-schedule property. But in the cross-examination to a question put to him according 53 O.S.No.3052/2010 to him who were all his ancestors, he has stated that his adoptive grand-mother i.e., Smt.Puttalakshmamma, natural grand-father i.e., Sri.Venkataramana Shetty, Sri.Pillai Shetty, who is his mother's father, wife of natural grand- father i.e., Smt.Venkatalakshmamma, are all his ancestors. Therefore, some how the plaintiff and defendant No.2 are bent upon to say that income from the ancestral property was utilized. But not proved to the satisfaction of the court.
34. In this case, the relief at para 16(b) was claimed by him seeking declaration to that effect. Likewise, in the evidence of DW-2, he has deposed that his father - Sri.H.Venkataramanaiah was very arrogant person and dominating nature, he used to ill treat his mother Smt.Alumelamma. Due to his harassment, she has committed suicide in the year 1975. His elder brother - DW.1 - Sri.H.Vishwanath spoiled the mind of the father by biting his ears and creating enemity between the members of the family. Taking advantage of old age of Sri.H.Venkataramanaiah, his loneliness, mental unrest and utilizing the opportunity, defendant No.1 has created Will Deed dated 27.11.1986 according to his convenience and 54 O.S.No.3052/2010 based on the Will Deed, he has created Trust Deed dated 07.10.1989. Even forging the signatures of Sri.H.Venkataramanaiah at page No.2 of the Trust Deed by manipulating the page and forging the signatures in order to grab entire A, B and C schedule properties with a sole intention to deprive the legitimate shares of the plaintiff and defendants 2 and 3. Hence, he has deposed that the Will Deed, Trust Deed and Gift Deed are all false and fabricated documents. He has further deposed that Sri.H.Venkataramanaiah has no authority to deal with the ancestral properties. Even the above said registered documents are assumed to be true, it doesn't bind the rights of defendant No.2 in the suit schedule properties.
35. Here, the evidence goes to show that the plaintiff and defendant No.2 have started residing separately. Even according to the evidence of DW-2, as DW-1 has created infusing bad things in the mind of his father against him, their relationship was strained and he started residing separately. He has not produced any documents such ration card, voters list, gas connection, electoral card to show that he had resided in A-schedule property. As 55 O.S.No.3052/2010 already discussed, PW-1 had married with a girl of other caste against the wish and will of the father, he had driven him out from A-schedule property. Therefore, they were not residing in A-schedule property during the lifetime of their father, can be gathered.
36. Ex.D7 is the ration card pertains to deceased Sri.H.Venkataramanaiah shows that he alone had resided in one portion of A-schedule property. Ration card was issued on 17.11.2001. Ex.D8 is the ration card pertains to DW.1- Sri.H.Vishwanath. Along with his wife and children, he is residing in the first floor of the out-house in A-schedule property which was bequeathed in his favour under Registered Will Deed - Ex.D3 executed by the father dated 27.11.1986. Though half heartedly PW-1 and DW-2 have stated that Will Deed was created by defendant No.1 by force, exercising coercion and threat, PW-1 has stated that defendants 1 to 10 have created the Will Deed, whereas DW-1 has stated that it is defendant No.1 just to knock off the properties was instrumental in creating these documents and they are fabricated one. It is has come in the evidence of DW-1 and PW-1 in the cross-examination 56 O.S.No.3052/2010 that, during the lifetime of deceased Sri.H.Venkataramanaiah there was no partition took place in their family and they never claimed or demanded partition during the lifetime of their father. Even under Ex.D13, the property derived from adoptive grand-mother 28 guntas of agricultural land in Sy.No.17/4 of Honganur Village sold under Ex.D13 - Registered Sale Deed in the year 1993, they were all majors, they did not question the alienation made by the father during his lifetime. More so, in the year 1986 itself he has executed Registered Will Deed and also created a Trust - Sri Venkateshwara Seva Kendra Trust as per - Ex.P5 dated 07.10.1989. Ex.D4 is the Gazette Notification issued that in the Trust property at the portion in possession of the Trust the Government has started Primary Health Centre subject to the condition stated in the Gazette Notification. It is admitted by PW-1 and DW-2 that such Health Centre was being run in that portion of A- schedule property and Board was displayed. Therefore, the say of PW-1 and DW-2 that they were totally unaware of the fact of creating Trust by their father and execution of Will Deed and Gift Deed by him was not within their 57 O.S.No.3052/2010 knowledge, is far from truth. No doubt, the plaintiff is not the beneficiary under Will Deed - Ex.D3 and Gift Deed - Ex.P19. PW-1 has stated that only after the death of the father in the year 2009, subsequently he started collecting the documents and came to know about the Will Deed, Gift Deed and creation of Trust by the father, what DW-2 has stated in the cross-examination. He admits that in the Will Deed - Ex.D3 portion of A-schedule property was bequeathed in favour of defendants 1 to 3, but nothing is given in favour of PW-1. DW-2 has admitted that he was not residing along with his father. A specific question was put in the cross-examination page No.26 of DW-2 that in the year 1989 his father has formed a Trust by executing Trust Deed - Ex.P5. Witness states that only after the death he came to know about the said fact. Even he has exhibited his ignorance about the fact that since 1989 main house in A-schedule was given to the Trust and running by displaying the Board, for that it is his say that as there was difference of opinion with his father, he is not in the habit of visiting A-schedule house and he came to know about the fact only after the death of his father. He admits Gazette 58 O.S.No.3052/2010 Notification - Ex.D4 evidencing that part of A-schedule property was given to run a Government Hospital. He further admits that in Ex.D4 it is mentioned that it was a Trust property, on free of cost it was given to Hospital. He has deposed that later on the Government has discontinued to run and surrendered the building as per the conditions of the Trust Deed. The said Gazette Notification is the public notice. For what purpose Trust was established and even in the Gazette Notification Government has allowed to run Primary Health Centre in the schedule property, if it is not required they agreed to hand over the vacant possession to Trust while shifting the said Hospital. Obviously, surrendering the same by the Hospital to the Trust was within the knowledge of DW-2, can be gathered.
37. The entire cross-examination of DW-2 if it is properly analysed, we can gather that creation of Trust by the father in respect of A-schedule property was within his knowledge and it is equally important to note herein that he was a signatory as a consenting witness to the Sale Deed - Ex.D13 of 28 guntas of land at Honganur Village Chennapatna Taluk in Sy.No.17/4. The other two brothers 59 O.S.No.3052/2010 are also signatories. That means, their contention that their relationship was strained, that is the reason they were not in the habit of visiting A-schedule property or talking with the father, cannot be appreciated. Therefore, knowing fully well that father alone is residing in portion of the house in A-schedule property and first floor in out-house in A- schedule was allotted to the share of DW-1 and he has been residing therein. As regards the portion of the property allotted to defendant No.3 - Smt.Umadevi, she has been collecting the rent is an admitted fact. That means, what arrangement was made by the father by creating a Trust and also B-schedule property was gifted to the Trust to carry out its function was certainly within the knowledge of the plaintiff and defendant No.2. That is the reason, they did not dare enough to question the father during his lifetime. They were aware of the fact that plaint A-schedule property is the absolute self acquired property of the father. Even B-schedule property was also his separate property, he is having every right to deal with it in the manner as he likes. Further more, if we read the original Will Deed - Ex.D3, he has divided it into 6 portions and first 3 portions 60 O.S.No.3052/2010 were given to Trust. By making an arrangement that the income derived through that portion shall be utilized for the public good to help the poor and to carry out the functions of the Trust. He has made arrangement by giving portions of the house and out-house, 4th schedule was given to defendant No.3, 5th schedule was given to son of defendant No.2-Sri.Ramkumar by name Vinay and 6th schedule was given to Sri.H.Vishwanath and Will has been acted upon as Sri.H.Vishwanatha was residing in the portion allotted to him and defendant No.3 - Smt.H.Umadevi is in possession of portion alloted to her and has been recovering the rentals and this fact was within the knowledge of plaintiff and DW-2 can be gathered from the evidence.
38. DW-1 in the evidence has stated that plaintiff, defendants 2 and 3 were aware of the fact that Sri.H.Venkataramanaiah had executed Registered Will Deed under Ex.D3 immediately after execution of the same. Even he has deposed that execution of the Trust Deed and Gift Deed was also within the knowledge of the plaintiff and defendants. They did not chosen to challenge the same during the lifetime of the father itself goes to show that they 61 O.S.No.3052/2010 were quite aware that it is the property belonged to the father and they don't have any right in the said property.
39. Even in the Will Deed - Ex.D3 in respect of movable properties also he has made arrangement that all his 4 children should distribute themselves. Why he has not given any share to PW-1 in the said Will Deed was only because he had married a girl from different caste against his will and he has even driven him out from A-schedule property and the plaintiff has been residing separately, can be gathered from the evidence. Therefore, exclusion of one of the son from the property in the said Will Deed - Ex.D3 cannot be a ground to take a view that it is a suspicious circumstance and unnatural disposition, DW-1 had taken role to prevail over or threaten the father in getting the Will excluding the plaintiff. Because father had taken the view that why he has not inclined to give any share to plaintiff in the Will Deed itself. As it is his self acquired property, he has got every right to bequeath the property in favour of whosoever he wish to do. Further more, it is the contention of DW-2 and plaintiff that the father was not keeping sound mental health, he was arrogant and taking undue 62 O.S.No.3052/2010 advantage of his age, by threatening and exercise of coercion, DW-1 has created the Will Deed. Here, father was alive for another 20 years even after execution of the Will Deed.
40. No doubt, Will is a sacrosanct document has to be proved by examining one of the attesting witnesses in accordance to Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Here, PW-1 has stated that both the attesting witnesses to the Will Deed are no more. To evidence the same, he has produced the Death Certificate of Chandrashekar.A.N. as per Ex.D11, who died on 30.10.1989 and another witness - Sri.Haseeb Ahmed, who died on 14.10.2009 as per Ex.D12 his Death Certificate. Therefore, both the attesting witnesses are not alive to give evidence. But, it is not the case of defendants that father did not execute any Will Deed. It is their allegation that by exercising coercion and threat, to knock off the property DW.1 got obtained that Will Deed. Further, the intention of the testator was to give his property to run Sri Venkateshwara Seva Kendra Trust and to achieve its objectives what is stated in Ex.P5 - Trust Deed dated 63 O.S.No.3052/2010 07.10.1989. Therefore, he has made arrangements for the Trust in the Will Deed itself and subsequently Registered Trust Deed came into existence. The residential premises i.e., A-schedule property was given to the Trust to run its objectives and office, of which Sri.H.Venkataramanaiah was a Founder Trustee. There is a mention that after his death, his eldest son should be the Managing Trustee and to constitute the Trust who should be other members and what are all the activities need be carried out, with a clear vision he has created the said Trust. In Ex.P5 - Trust Deed, Clause No.6 he has made it clear the Board of Trustees shall have no power to sell, mortgage or lease the Trust property in any manner and in Clause No.14 there is a mention that Founder of the Trust - Sri.H.Venkataramanaiah has bequeathed the sufficient portion of his schedule property to the Trust by means of Will registered on 28.11.1986 before Sub-Registrar, Jayanagar. The schedule property accordingly shall vest in the Trust when the Will become effective in law. Therefore, the intention of Sri.H.Venkataramanaiah in execution of Will Deed, he has made arrangement about the Trust and major portion of A- 64 O.S.No.3052/2010 schedule property was given to Trust and it started functioning in A-schedule property since the year 1989, can very well be gathered.
41. Further, as he was owning B-schedule property, he had executed Registered Gift Deed as per Ex.P19 dated 07.06.2004, clearly stating that it is his self acquired property and half portion was derived through his adoptive mother. This court has given finding that as it was the absolute property of adoptive mother, on her death it devolved on Sri.H.Venkataramanaiah under Section 15(1)(a) of the Hindu Succession Act and it is the separate property of Sri.H.Venkataramanaiah. That is the reason, he has executed Gift Deed in favour of the Trust. On behalf of Trust, Dharmadarshi - Sri.K.Srinivasaraju had accepted the gift and taken possession of the property.
42. Therefore, though in the cross-examination of DW-2 he has deposed that page No.2 of the Trust Deed - Ex.P5 the signature of his father - Sri.H.Venkataramanaiah was forged, however he admits the signature on other pages of the Trust Deed belonged to his father. It is only 65 O.S.No.3052/2010 because in page No.2 at its obverse names were written in handwriting, he wanted to take that defence. But in reality, as it is a registered document and registered before the Sub-Registrar, there is no chance for defendant No.1 to tamper the document as alleged by DW-2. More over, the typed matter written on the document and its continuation clearly goes to show the aspiration and intention of the father to carry out functions of the Trust by providing the immovable property and also arranged money which are in deposits, how the Trustees can use it, it shows his foresighted thinking and arrangements made, that cannot be allowed to defeat by PW-1 and DW-2 by taking contentions that he did not had any right to create Trust or to execute Will Deed or Gift Deed. The facts stated in the Will Deed, what is found in Ex.P5 - Trust Deed and Ex.P19 - Gift Deed that how he intends to dispose of the property and to see that even after the death, how properties and money left by him should be used to provide services to the Society, aged persons, who are helpless and also to perform pooja viniyogas in the temple and to achieve the object of the Trust, what is stated in Ex.P5. Therefore, execution of 66 O.S.No.3052/2010 Will Deed - Ex.D3 by the father can be considered that there is no circumstances worth to believe or brought on record in evidence that it was obtained by DW-1 or Trust Members by exercising coercion or force. Because Sri.H.Venkataramanaiah, he was an educated person, had worked in a good position in Health Department since 1944 to 1975 and under what circumstances he has thought of to create Trust and make arrangement to carry out his intention in creation of Trust and he has not forgotten to provide portion of A-schedule property to his married daughter - defendant No.3 and 2 sons - defendants 1 and
2. Why he has not chosen to give any share to PW-1 can also be gathered, what is stated in the Will Deed itself. Therefore, it is needless to say that all the circumstances probabalise that Sri.H.Venkataramanaiah had executed the Will Deed - Ex.D3 dated 27.11.1986 and also Registered Trust Deed dated 07.10.1989 - Ex.P5 and Gift Deed - Ex.P19 dated 07.06.2004.
43. PW-1 and DW-2 have stated that father was not in a position to understand because of his age and he lost his mental balance, just they wanted to cast aspersions on 67 O.S.No.3052/2010 the father. But father had survived another more than 20 years even after execution of Will Deed- Ex.D3.
44. The very documents produced by the plaintiff - Ex.P8 the order sheet in O.S.No.220/1994 filed by Sri.H.Venkataramanaiah against Sri.H.N.Thirumalagowda and another, in respect of B-schedule property, that was contested, he had appeared before the court on adjourned dates. Certified copy of the plaint is produced at Ex.P9. Ex.P10 is the written statement filed by the defendants in that suit. Ex.P11 is the judgment passed by the Civil Judge & JMFC, Chennapatna. Ex.P13 is the evidence of Sri.H.Venkataramanaiah recorded in that suit. Ex.P14 is the evidence of Sri.Thirumalegowda recorded in that suit. Ex.P15 is the certified copy of evidence of Sri.Yallegowda, who was examined as DW-2. Ex.P16 is the evidence of one Sri.Ningegowda examined as DW-3 in that suit. It is not in dispute that said judgment has been challenged before Appellate court in Ramanagar at R.A.No.58/1997 and again in R.S.A.No.2/2002 before the Hon'ble High Court of Karnataka Sri.H.Venkataramanaiah had fought the litigation by giving instructions to the advocates. He had also has 68 O.S.No.3052/2010 given evidence in O.S.No.8/2006 filed by him against Smt.Chikkammani before Civil Judge Court, Chennapatna. Even under Ex.D13 - Registered Sale Deed he has sold 28 guntas of land in Sy.No.17/4 of Honganur dated 02.12.1993 for which plaintiff, defendants 1 and 2 are witnesses. Trust Deed - Ex.P5 of 1989 and Gift Deed - Ex.P19 of 2004 goes to show that he was active and participated in so many litigations and he has carried out the objectives of the Trust created by him as a Founder Managing Trustee till his death, which falsifies the say of PW.1 and DW-2 that at the time of execution of the Will Deed Sri.H.Venkataramanaiah was not keeping sound mental health. Only for defence sake such a plea was taken, but that is far from truth, can very well be gathered. Therefore, execution of Will Deed - Ex.D3 through which he has made arrangements of his movable and immovable properties. He has even given share to the son of defendant No.2 i.e., Sri.Vinay. Though DW-2 in his cross-examination admits that he had a son by name Vinay, but PW-1 has stated that DW-2 is issueless, he doesn't have son by Vinay. It also shows that how the plaintiff is interested in disputing the acts done by his 69 O.S.No.3052/2010 father. But in the first place, he has failed to prove that the father did not had any right to execute the Will to dispose of A-schedule property and he has no right to execute Gift Deed as per Ex.P19 in favour of the Trust and also to create Trust Deed. Circumstances goes to show Trust is actively functioning, therefore the evidence of DW-2 cannot be appreciated. As DW-1 being the eldest son in view of the conditions of the Trust Deed, he is acting as Managing Trustee and it cannot be said that his intention was to knock off the property by him alone. Because other Trustees are there, they are expected to abide by the conditions of the Trust Deed. Therefore, DW-2 has come before the court only to support PW-1, in the written statement he has not come with clear defence. A vague denial was made. But in the evidence he wanted to improve what is not stated by PW-1 and pleaded by him in the written statement. But PW-1 and DW-2 have failed to substantiate their contentions disputing the Will Deed - Ex.D3 and Trust Deed
- Ex.P5 and Gift Deed - Ex.P19 executed by deceased Sri.H.Venkataramanaiah. On the contrary, all the circumstances probabalise under what circumstances father 70 O.S.No.3052/2010 had taken such a view to create a Trust and to provide major property to the Trust and FD amounts that is invested by him should also be utilized by the Trust as it is his own property, he has done in his own right, that cannot be questioned by PW-1 and DW-2 that it is null and void and not binding on the rights of the plaintiff.
45. In respect of C-schedule fixed deposits in Post Office and banks is concerned, PW-1 has stated that after constructing building in A-schedule property, same was leased and rents derived from A and B schedule properties, portion was deposited in the Bank and Post Office, as such amounts lying in such deposits are joint family properties, he is entitled to share in it. Even DW-2 also supports his contention.
46. But in this case, defendant No.12 Manager, Syndicate Bank, in his written statement has clearly stated that other than the S.B. Account, other accounts in the name of Sri.H.Venkataramanaiah.
Sl.
A/c No. Amount Nominee
No.
i 0409 403 5216/3 Rs.1,35,915.00 Vinay M.D.
71 O.S.No.3052/2010
ii 10407 5216/2 Rs.1,60,000.00 Vishwanath
iii 10407 5216/5 Rs.50,000.00 Vishwanath
iv 0409/404/1858/2 Rs.1,25,550.00 Vinay M.D.
No.9415
v CD 409/251/8398 Rs.40,273.49 Vishwanath
Nom No.10099343
19-12-2009
All these aforesaid amounts have been settled and paid to the respective nominee as per the Bank Rules. In S.B. Account Rs.19,547.35 is available.
47. Likewise, in the written statement filed by the defendant No.14 - Post Master, has stated in the written statement about the deposits held with them as follows:-
a) Senior Citizen Savings Scheme Account No.60331 for a sum of Rs.2,00,000/- with nomination in the name of Sri.H.Viswanath was closed on 06.11.2009.
b) Senior Citizen Savings Scheme Account No.60568 for a sum of Rs.1,06,000/- with nomination in the name of Sri.H.Viswanath was closed on 06.03.2010.
c) Senior Citizen Savings Scheme Account No.61054 for a sum of Rs.1,50,000/- with nomination in the name of Sri.H.Viswanath 72 O.S.No.3052/2010 was closed on 01.12.2009
d) The Monthly Income Scheme Account No.219152 for a sum of Rs.72,000/- with nomination in the name of Sri.H.Viswanath was closed on 01.12.2009
e) Senior Citizen Savings Scheme Account No.61031 for a sum of Rs.1,50,000/-
without nomination and account is not closed as on the date.
f) Savings Bank Account No.2421485 without nomination with the balance of Rs.14,637/- and the account is not closed as on the date.
The details of investment what is stated in C-schedule doesn't tally with facts stated by defendants 12 and 14 in their written statement.
48. DW-1 has categorically stated in his evidence that imaginary claim was made. In para No.7 of examination-in-chief affidavit he had made mention about advance received from different persons on different terms, which are belongs to Sri Venkateshwara Seva Kendra Trust a sum of Rs.4,38,000/- is kept in F.D. besides a sum of Rs.33,130/- in Savings Bank in the name of Trust - Sri Venkateshwara Seva Kendra Trust in S.B.M., Kanakapura 73 O.S.No.3052/2010 Road Branch and denied the allegations that A-schedule property is monthly fetching rentals of Rs.23,500/- per month. He has clarified that Yoganarayana Trust is crediting rent of Rs.3,000/- per month directly to the account of Sri Venkateshwara Seva Kendra Trust. When the occupants of different portions of A-schedule property vacate, the Trust will have to return them a sum of Rs.6,50,000/- received by way of advance/mortgage amount.
49. If we read Trust Deed - Ex.P5 he has made specific condition that Board of Trustee shall not directly or indirectly any favour or benefit or money, gift either from Government or from public and they shall maintain the regular account, duly audited and even they don't have any right to modify or alter the provisions of the Trust and objectives of Trust for which it has been established.
50. In the Will Deed - Ex.D3, he has specifically stated that the amount deposited in the post office, fixed deposits and in future till he alive, the investment made in National Savings Certificates and the interest amount shall 74 O.S.No.3052/2010 be utilized for the pooja and other viniyogas i.e., feeding people at the time of Sri.Gopalakrishna Temple Rathosthava and during festive occasions to provide fruits to the patients in the hospital. The amount after maturity shall be withdrawn and again continued by reinvestment. Therefore, his intention was to see that the investments made in the post office and bank is self earned money, interest should be utilized to achieve the objectives of the Trust. DW-1 has deposed the very same thing in his evidence.
51. Further, in Ex.P19 - Gift Deed in favour of Trust in respect of B-schedule property is concerned, he has clearly stated that to achieve the objectives of Sri Venkateshwara Seva Kendra Trust he has gifted the said property. as presently DW-1 is the Managing Trustee as per the conditions of Trust Deed - Ex.P5. The amount that is found in deposits which are the self acquired property of deceased Sri.H.Venkataramanaiah. The interest amount shall be used to achieve the functions of the Trust. They shall give proper account after auditing annually. Therefore, allegation that DW-1 has swallowed the amount, defeating the interest of other sharers, what is alleged 75 O.S.No.3052/2010 cannot be appreciated at all. Trust has every right to monitor it, whatever the amount deposited in bank and post office. Therefore, even in C-schedule property also it is held that the plaintiff and defendant No.2 have failed to prove that they hare having share in it. It is DW-1 being the Managing Trustee of Trust and other Trustees of Sri Venkateshwara Seva Kendra Trust shall monitor the amount left behind by deceased Sri.H.Venkataramanaiah and responsible for giving proper accounts for the same. Therefore, the say of plaintiff and DW-2 that C-schedule amount is also joint family property and they are having share in cannot be appreciated at all. On the contrary, it can be said that the plaintiff and defendant No.2 have failed to prove that suit schedule properties are the joint family properties and they are having share in it.
52. The suit is also bad of non-joinder of necessary parties for the simple reason that in the written statement filed by defendant No.14 grand-father had deposited certain amount in the post office showing son of defendant No.2 Vinay as nominee. Even under the Will Deed - Ex.D3 Item No.5 in A-schedule was bequeathed in favour of his grand- 76 O.S.No.3052/2010 son Vinay s/o. defendant No.2 - Sri.H.Ramkumar, a specific condition was imposed creating life estate in favour of defendant No.2 - Sri.H.Ramkumar that he is entitled to enjoy the said property and doesn't have any right to alienate, mortgage or execute Gift Deed in favour of others. But the plaintiff has stated that no such son is available to defendant No.2. Whereas, defendant No.2 himself admits that he had a son by name Vinay. When father had bequeathed the portion of the property in favour of Vinay, he is necessary party to the present suit. Major portion of A-schedule property and entire B-schedule property was given to Sri Venkateshwara Seva Kendra Trust and B- schedule property was gifted under Gift Deed - Ex.P19, Trust Deed was created under Ex.P5 and Trust has taken possession and functioning as per the conditions stated in the Trust Deed - Ex.P5. Till his death, Sri.H.Venkataramanaiah was the Founder Managing Trustee has looked after management and thereafter, defendant No.1 continued the management as Managing Trustee. Though Sri Venkateshwara Seva Kendra Trust was subsequently arrayed as defendant No.15. They got 77 O.S.No.3052/2010 deleted relief against defendants 11 to 14 for the reasons best known to them. Therefore, no specific case is made out by the plaintiff and defendant No.2 in respect of C- schedule property. Equally son of DW-2 Vinay was the beneficiary under the Will and also nominee certain fixed deposits in the post office and bank, as such suit is bad for non-joinder of necessary parties. Accordingly, I answer Issue No.1 in the negative and Issue No.2 in the affirmative.
53. Issue No.3:-
In this suit, defendant No.1 and defendant No.14 have specifically raised the contention that suit is not maintainable as it is barred by limitation. For the detailed discussions while deciding Issue Nos.1 and 2 it is held that suit schedule properties are the self acquired absolute properties of Sri.H.Venkataramanaiah. The plaintiff and defendant No.2 have failed to prove that it the joint family properties and they are having right to claim share in it. During his lifetime, while he was hale and healthy and in sound disposing state of mind Sri.H.Venkataramanaiah had 78 O.S.No.3052/2010 executed the Will Deed - Ex.D3 dated 27.11.1986, bequeathing the property and has created a Trust and his intention to see that his earnings should be properly utilized to serve the people and needy aged persons and also the patients in the hospital, children and in pooja viniyogas of the temple, what are categorically stated in the objectives of the Trust created under Ex.P5 - Trust Deed dated 07.10.1989. Subsequently, he has executed the Registered Gift Deed dated 07.06.2004, through which he has gifted B-
schedule property in favour of Sri Venkateshwara Seva Kendra Trust founded by him to achieve its objectives. The plaintiff has claimed that he was excluded without giving any share in A-schedule property under Will Deed, therefore same is not binding on him. Whereas defendant No.2 has contended that the said Will Deed is concocted, forged and fabricated document. Equally Trust Deed - Ex.P5 and Gift Deed - Ex.P19 also are created documents, not binding on the rights of the plaintiff and defendant No.2 and they came to know about these facts only after the death of the father, who died on 10.09.2009. It is held that the say of defendant No.2 and plaintiff that they were totally unaware 79 O.S.No.3052/2010 of execution of Will Deed, Gift Deed and Trust Deed by Sri.H.Venkataramanaiah in respect of A to C schedule properties and they did not had the knowledge of creating Trust by the father and to achieve the objects of the Trust he had made arrangements by executing Gift Deed - Ex.D3 and Will Deed - Ex.P19, cannot be appreciated at all. The say of the plaintiff and defendant No.2 that only after the death of their father, they came to know, cannot be believed at all. Because father was alive more than 23 years even after execution of Will Deed - Ex.D3. In the A- schedule property Trust was carrying out its activities and these activities cannot be done in a secret way.
54. The very contention taken by defendant No.2 in his written statement para No.9 by stating that as regards execution of Will Deed is concerned "this defendant was also not in a position to restrain his father from executing the alleged Will as his father was in unsound mind and this defendant's right to defend the same will be only after the death of his father i.e., on 10.09.2009" speaks that the plaintiff and defendant No.2 were aware of the execution of the Will Deed by the 80 O.S.No.3052/2010 father in respect of A-schedule property, immediately after execution of Ex.D3. As they were aware that they don't have any right in the property and throughout till the death of the father, they did not raise any little finger against the acts done by the father. Even they did not demand partition during the lifetime of the father. They were aware of creation of Trust, execution of Trust Deed as per Ex.P5 in the year 1989 and execution of Gift Deed in respect of B- schedule property under Ex.P19 in the year 2004, because father was alive till 2009. Therefore, merely saying that father was arrogant and was suffering from unsoundness of mind, cannot be a ground to say that why they sat silent. When father has done all these things were within their knowledge and pursuant to Will Deed, he has established the Trust and it starts functioning in A-schedule property. It was within the knowledge of the general public. Even though, the plaintiff and defendant No.2 were aware of the said fact, deliberately by stating that only after the death of the father they came to know, is just stated to save the limitation. But the say of defendant No.2 in the written statement that he could not stop his father in executing 81 O.S.No.3052/2010 Will and right to defend would arise only after his death, he has not objected speaks volume. Therefore, whole thing was within the knowledge of the plaintiff and defendant No.2 on the respective dates the father had executed Will Deed in the year 1986, Trust Deed in the year 1989 and Gift Deed in the year 2004. But they waited till the death of father on 10.09.2009 to raise their claim that they are having share in it. In fact, evidence brought on record are sufficient to take view that it is not joint family properties, it is the self acquired absolute properties of late Sri.H.Venkataramanaiah and during his lifetime he has executed the Will Deed and also established the Trust and to achieve the objects of the Trust amount invested in FDs in Bank and Post Office was arranged by him, not as alleged by the plaintiff. But what is borne out from the written statement filed by defendants 12 and 14 and also what is stated by DW-1 shows that Sri Venkateshwara Seva Kendra Trust is expected to deal with the amount to fulfill the objectives of the Trust and also the intention of Sri.H.Venkataramanaiah in creation of the Trust and also execution of the Will Deed. The defendant No.1 being the 82 O.S.No.3052/2010 Managing Trustee and Trustees of Sri Venkateshwara Seva Kendra Trust are expected to give proper account with regard to the amount and expenditure to achieve the objectives of the Trust as well as conditions of the Will. Therefore, within 3 years from the date of knowledge, declaratory suit shall have to be filed challenging the documents, as such it is held that the relief claimed by the plaintiff and defendant No.2 is hopelessly barred by limitation. Accordingly, I answer Issue No.3 in the affirmative.
55. Issue No.4:-
In this case, defendant no.1 has contended that the plaintiff and defendant No2. are not in possession of the suit schedule properties, as PW-1 had married a girl of different caste against the wish of his father, that is the reason he was driven out from A-schedule property by the father. On 27.11.1986 he has executed a Will Deed, wherein he has made arrangements by 6 schedules and major portion of the property was bequeathed in favour of Sri Venkateshwara Seva Kendra Trust and schedule Nos.4, 83 O.S.No.3052/2010 5 and 6 were given to defendants 1 to 3, only life estate was created in favour of defendant No.2 and his son - Vinay was given schedule Item No.5. Therefore, atleast Will has come into operation on the death of Sri.H.Venkataramanaiah on 10.09.2009. Further, Trust started functioning from the year 1989 itself and they are in possession of the same and father had excluded the plaintiff from out of the schedule properties, that is not disputed by the plaintiff. It is not his case that, he is in joint possession along with the father till his death. When father with manifest intention excluded him much previous to the year 1986, it is the clear case that he was ousted from the properties. Further, evidence goes to show that suit A, B and C properties are the self acquired absolute properties of Sri.H.Venkataramanaiah and it is not a joint family properties. The plaintiff has failed to prove that it is the joint family properties and he is having share in it.
Therefore, as he was out of possession, he has filed the suit on 29.04.2010 contending that he is entitled to get 1/4th share in the suit schedule properties, valuing plaint A- schedule property at Rs.40,00,000/-, B-schedule property 84 O.S.No.3052/2010 at Rs.4,00,000/- and C-schedule property at Rs.25,00,000/- Thus in all 69,00,000/-, out of it plaintiff's share is 1/4th comes to Rs.17,24,000/- and paid maximum court fee of Rs.200/- under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act. He has paid court fee of Rs.25/- on relief No.2 under Section 24(b) of the Act. Here, while filing the suit court should be guided only by the pleadings in the plaint and reliefs in the suit and should not unduly guided or influenced by the contentions raised the defendants in the written statements. But after the trial, if evidence goes to show that it is not the case for computing the court fee fall under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, in fact it falls within the ambit of Section 35(1) of the Act, certainly court can direct the party to pay court fee or proceeded to dismiss the suit for want of non payment of court fee properly. In the present suit, after appreciation of the evidence, this court is of the considered view that suit A, B and C schedule properties are the self acquired absolute properties of deceased Sri.H.Venkataramanaiah and it is not the joint family properties as contended by the plaintiff. During the lifetime 85 O.S.No.3052/2010 of deceased Sri.H.Venkataramanaiah he has made arrangements by creating Trust Deed and how, properties should go after his death and also to carry out the objectives of the Trust created by him, placing responsibility on defendant No.1 i.e., his eldest son. Therefore, certainly it can be said that the plaintiff is out of possession. Therefore, he is expected to pay advolerm court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act. As such, it is held that court fee paid by the plaintiff is insufficient and on this score, suit is liable to be dismissed. Accordingly, Issue No.4 in the affirmative.
56. Issue No.5:-
In view of my detailed findings on Issue Nos.1 to 4, the plaintiff has failed to prove that the suit schedule properties are joint family properties of the plaintiff and defendants 1 to 3 and he is entitled to get 1/4th share. On the contrary, evidence goes to show that it is the self acquired absolute separate properties of Sri.H.Venkataramanaiah and during his lifetime he has executed Registered Will Deed - Ex.D3 dated 27.11.1986, 86 O.S.No.3052/2010 Ex.P5 - Registered Trust Deed dated 07.10.1989 and Ex.P19 - Registered Gift Deed dated 07.06.2004. He has executed all these registered documents out of his own right to arrange how his properties should be utilized after his death with the noble intention to provide service to the old aged people, infirm, sick, children and also for charitable purpose. As such, the said Deeds cannot be said that they are null and void. The plaintiff and defendant No.2 cannot seek that these documents are null and void and not binding on their rights for the relief of declaration as prayed in the suit. It is also held that suit is barred by limitation and also on the ground of court fee paid is insufficient suit is liable to be dismissed. Accordingly, it is held that the plaintiff's claim is liable to be dismissed, holding that he is not entitled to any of the reliefs claimed in the suit. Equally defendant No.2 also not entitled to any reliefs as claimed in the written statement filed by him. Accordingly, I answer Issue No.5 in the negative.
57. Issue No.6:-
For the forgoing reasons, I proceed to pass the following:-87 O.S.No.3052/2010
ORDER Suit filed by the plaintiff against the defendants is hereby dismissed.
Under the circumstances, parties to bear their own costs.
Draw a decree accordingly.
(Dictated to the Judgment Writer on computer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 10th day of February 2017) (BAILUR SHANKAR RAMA) 42ND ADDL. CITY CIVIL & SESSIONS JUDGE, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiffs' side:
PW.1 - Sri.H.Sathyanarayana
(b) Defendants' side:
DW.1 - Sri.H.Vishwanatha DW.2 - Sri.H.Ramkumar II. List of documents exhibited on behalf of:88 O.S.No.3052/2010
(a) Plaintiffs' side:
Ex.P1 : Genealogical Tree
Ex.P2 : Death Certificate of H.Venkataramanaiah
Ex.P3 : Katha Extract
Ex.P4 : Demand Register Extract
Ex.P5 : Certified copy of Declaration of Trust
Ex.P6 : Encumbrance Certificate
Ex.P7 : Certified copy of Mortgage Deed dated
19.12.1972
Ex.P8 : Certified copy of Order Sheet in
O.S.No.220/1994
Ex.P9 : Certified copy of Plaint in
O.S.No.220/1994
Ex.P10 : Certified copy of Written Statement in
O.S.No.220/1994
Ex.P11 : Certified copy of Judgment in
O.S.No.220/1994
Ex.P12 : Certified copy of Decree in
O.S.No.220/1994
Ex.P13 : Certified copy of Deposition of PW.1 -
Sri.H.Venkataramanaiah in
O.S.No.220/1994
Ex.P14 : Certified copy of Deposition of DW.1 -
Thirumalegowda in O.S.No.220/1994
Ex.P15 : Certified copy of Deposition of DW.2-
Yallegowda in O.S.No.220/1994
Ex.P16 : Certified copy of Deposition of DW.3-
Lingegowda @ H.M.Raju in
O.S.No.220/1994
Ex.P17 : Certified copy of Mortgage Deed dated
24.06.1962
Ex.P18 : Certified copy of Will Deed dated
27.11.1986
Ex.P19 : Certified copy of Gift Deed dated
07.06.2004
Ex.P20 : Certified copy of Sale Deed dated
30.09.1954
(b) Defendants' side:
89 O.S.No.3052/2010
Ex.D1 : Mortgage Agreement dated 17.12.1957
Ex.D2 : Mortgage Agreement dated 25.07.1958
Ex.D3 : Will Deed dated 27.11.1986
Ex.D4 : Karnataka Gazette dated 22.06.1995
Ex.D5 : Certified copy of Gift Deed dated
07.06.2004
Ex.D6 : Certified copy of Sale Deed dated
16.05.1956
Ex.D7 & 8 : Ration Cards
Ex.D9 : Certified copy of Judgment in
O.S.No.220/1994
Ex.D10 : Certified copy of Declaration of Trust
dated 07.10.1989
Ex.D11 : Death Certificate of Chandrashekar.A.N.
Ex.D12 : Death Certificate of Haseeb Ahmed
Ex.D13 : Certified copy of Sale Deed dated
02.12.1993
Ex.D13(a) : Typed copy of Ex.D13
Ex.D14 : Letter dated 03.06.2015
Ex.D15 : Notice dated 27.05.1953
Ex.D16 : Notice dated 31.05.1954
Ex.D17 : Application dated 23.06.1949
Ex.D18 : Certified copy of Sale Deed dated
16.05.1956
Ex.D19 : Certified copy of The Mysore Gazette
dated 31.01.1957
Ex.D20 : Notification dated 23.06.1961
Ex.D21 : Notification dated 16.02.1970
Ex.D22 : Certified copy of Village Map
Ex.D23 : Genealogical Tree
Ex.D24 : Pension Payment Order pertains to
Sri.Ramakumar.H.
Ex.D25 : Pension Payment Order pertains to
Sri.Sathyanarayana.H.
42nd ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU.