Bangalore District Court
Sri. Burjor Homi Dandiwala vs Sri. Mala Chowdhari on 16 December, 2020
IN THE COURT OF THE IV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH21)
Dated this 16th Day of December 2020
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G. (B.A. LL.B.,)
LXXIV Addl. City Civil and Sessions Judge, Bengaluru
(CONCURRENT CHARGE)
ORIGINAL SUIT NO. 26787/2010
PLAINTIFF: SRI. Burjor Homi Dandiwala,
S/o. Late Homi B. Dandiwala,
Aged about 46 years
R/at: Aashiana,
Flat No.402, 3 Gun Powder Lane,
Mazgaon, Mumbai400 010.
Rept by Mulla & Mulla, Advocates.
V/s
DEFENDANT: 1 SRI. Mala Chowdhari
W/o Late Khurshed Homi Dandiwala,
Aged about 45 years,
R/at. Flat No. 402, Land Mark
Apartments, No.1, Moyenville Road,
Longford Town,
Bangalore560 25.
Date of Institution of the suit 21.10.2010
2
OS.26787/2010
Nature of the Suit (Suit on pronote, suit for
DECLARATION &
declaration and possession, suit for
INJUNCTION
injunction, etc.)
Date of the commencement of recording of the
27.02.2012
Evidence.
Date of pronouncement of Judgment 16.12.2020
Total duration Year/s Month/s Day/s
10 01 26
JUDGMENT
Plaintiff has filed the instant suit for administration of estate of his brother Late Homi B. Dandiwala (also referred to as 'deceased') claiming the following reliefs:
a). Declare that all the assets, properties and effects which comprise the estate of the Deceased Sri. Khurshed Homi Dandiwala, including the suit schedule property devolve upon the plaintiff as the sole heir and legatee of the dec3eased under the Will dated: 22.12.2005;
b). Decree that the defendant forthwith handover vacant, peaceful and unencumbered possession of the suit schedule property to the plaintiff;
c). The defendant be ordered and decreed to disclose, on oath, the estate, assets, properties and effects 3 OS.26787/2010 forming, comprising and belonging to the estate of the deceased Sri. Khurshed Homi Dandiwala and to which the estate of the deceased is entitled, wholly or in part.
d) The defendant be ordered and decreed to render a true, correct and faithful account in respect of the estate properties, assets and effects of the deceased Sri. Khurshed Homi Dandiwala including all dealings and transactisons relating thereto;
e) On accounts being taken, in the event of this
court coming to the conclusion that the
defendant is liable to the estate of the deceased Sri. Khurshed Homi Dandiwala such amount be ascertained and the defendant be ordered and decreed to make payment of such sum to the estate of the deceased together with interst thereon at the rate of 18% per annum or such other rate as this court may deem fit;
f) The estate properties, assets and effects of the deceased Sri. Khurshed Homi Dandiwala be collected, recovered and realised and the liabilities, if any of the estate of the decease3d be ascertained and discharged;4
OS.26787/2010
g) The net realised amount of the estate or charges standing to the credit of the deceased be made over or paid or handed over to the plaintiff being the sole heir of the deceased Sri. Khurshed Homi Dandiwala
h) Temporary Injunction restraining the defendant, either by herself, or through her agents, servants, employees, attorneys, assignees or any person acting for or on behalf of defendant transferring, alienating, selling, disposing off, creating 3rd party rights, dealing with or any way encumbering the suit schedule property or any part thereof, or any part of the assets or properties which belong to the estate of deceased Sri. Khurshed Homi Dandiwala
i) for costs
2. The administrative suits are to be valued as per section 37 of Karnataka Court Fee and Suit Valuation Act ( KCF & SV Act). A perusal of valuation slip filed by the plaintiff would show that he has not made valuation as per section 37 of KCF & SV Act . Plaintiff has valued the suit for the relief of declaration 5 OS.26787/2010 and possession and paid court fee on the market value of the suit property. After conclusion of the trial and hearing arguments on both side, when the case was posted for hearing regarding the scope of administrative suit, plaintiff filed memo dated:30.11.2020 stating that he confined the instant suit for the relief of declaration and possession of suit property. FACTS OF THE CASE:
3. The suit property is the selfacquired property of deceased Sri. Khurshed Homi Dandiwala. He purchased the said property under the registered sale deed dated: 27.11.1996.
Since the date of purchase, he had been in possession and enjoyment of the said property. Defendant who was residing with deceased in the suit property has been contending that she married the deceased on 30.05.1997. Plaintiff contends that defendant is the legally wedded wife of one John Stevens. Through him she had two children namely Prithviraj and Devraj. Plaintiff contends that after he and his family members came to know about marital status of defendant, they demanded 6 OS.26787/2010 her to produce decree of divorce obtained from the competent court of law for annulment of her marriage with John Stevens to contract legal marriage with deceased. Defendant has not produced any valid document to prove that she has taken divorce from her husband John Stevens before contracting the alleged marriage with deceased on 30.05.1997. Plaintiff contends that defendant during subsistence of her marriage with John Stevens, cannot contract marriage with the deceased. Thus, there is no valid marriage between defendant and deceased. Plaintiff contends that his brother deceased Sri. Khurshed Homi Dandiwala died on 13.06.2010. About 8 months prior to his death, he had acute back problem in view of ruptured discs in the spine. In addition to that, he had high Blood Pressure, Cholesterol and also having tumor in the liver. Defendant who was living with deceased was not taking care of his health. Despite the deceased was suffering from above serious ailments, defendant left him alone in Bengaluru and went to her native place. Plaintiff contends that he provided 7 OS.26787/2010 medical aid to the deceased. He contends that immediately after the death of deceased, defendant came to Bengaluru and start residing in the suit property. Plaintiff contends that the deceased made a Will dated: 22.12.2005 bequeathing his estate in his( plaintiff) favour and also appointed him as executor of the said Will. As per the terms of the said Will, he performed the last rites of deceased and also death ceremony. He contends that some days after the death of deceased, he informed the defendant about the Will made by deceased. Defendant after came to know about the said will, turned hostile towards him( plaintiff ) and filed O.S. No. 26060/2010 seeking the relief of injunction by making false and vaxatious allegations against him and obtained exparte adinterim order of Temporary Injunction. Plaintiff contends that he has no intention to vacate the defendant from the suit property otherwise in due course of law. He informed the same to the Court. Therefore, the said case was ended in settlement as per the Joint Memo with an undertaking that he shall not evict the defendant from the suit 8 OS.26787/2010 property otherwise in due course of law. Plaintiff contends that he being the sole legatee and executor of the Will made by deceased would succeed to the suit property. In addition to that, as a sole surviving legal heir of deceased, he would succeed to the suit property. Defendant is not the legally wedded wife of deceased. Therefore, she has no manner of any right, title or interest over the suit property. Therefore, she is liable to vacate and handover the vacant possession of the suit property to him. On these and other grounds stated in the plaint plaintiff prays to decree the suit and to grant the relief of declaration and possession.
4. Defendant resisted the suit by filing written statement. She admits that plaintiff is the brother of deceased and the suit property was the selfacquired property of deceased. She denied that deceased made Will dated: 22.12.2005 bequeathing his estate in favour of plaintiff. She contends that the said Will was created by the plaintiff to knock off the suit property. Defendant admits her marriage with John Stevens and having two sons 9 OS.26787/2010 through him namely Prithviraj and Devraj. She contends that after annulment of her marriage with John Stevens, she married the deceased on 30.05.1997. Since marriage, she had been living with deceased. She denied that she was not looking after the deceased property, therefore, deceased was not happy with her and their relationship was strained. Defendant contends that she being the legally wedded wife of deceased would succeed to his estate. Plaintiff has no right over the suit property. Nevertheless he made attempts to vacate her from the suit property. Therefore, she filed O.S. No. 26060/2010 and obtained temporary injunction. She contends that her relationship with deceased was very good and they were in cordial terms. Therefore, absolutely there was no necessity for the deceased to make a Will in favour of plaintiff. Defendant contends that as a legal heir of deceased, she is in possession of the suit property. Therefore, she is not liable to vacate and handover the vacant possession of the suit property to the 10 OS.26787/2010 plaintiff. On these and other grounds stated in the written statement, defendant prays to dismiss the suit.
5. On the basis of the afore said pleadings, on 01.12.2011 the then presiding officer has formulated the following:
ISSUES
1.Whether the plaintiff proves his title over the suit schedule property?
2.Whether the plaintiff proves
execution of Will dated:
22.12.2005?
3.Whether the plaintiff is
entitled for possession of suit
schedule property?
4.Whether the defendant is liable
to furnish the details of
property owned by late Kursheed
Homi Dandiwala?
5. Whether the defendant is liable
to render account in respect of
properties of late deceased Sri.
Khurshed Homi Dandiwala?
11
OS.26787/2010
6.Whether the plaintiff is
entitled for mesne profits?
7. Whether the plaintiff proves
that the defendant has received
rent in respect of properties of
late deceased Sri. Khurshed Homi
Dandiwala?
8.If so, whether the plaintiff is
entitled for the rent collected
by the defendant?
9.Whether the plaintiff is
entitled for permanent
injunction claimed?
10. What order or decree?
6. Plaintiff examined himself as PW1 and a witness as PW.2 and produced documents marked at Ex.P.1 to Ex.P.62.
Defendant examined herself as DW1 and produced document marked at Ex.D.1 to Ex.D.20.
7. Heard the arguments on both side.
8. My findings on the above issues are as under:
ISSUE NO.1: In the . In the Affirmative 12 OS.26787/2010 ISSUE NO.2: In the .In the Affirmative ISSUE NO.3: In the .In the Affirmative ISSUE NO.4to 9: Do not survive for consideration ISSUE NO.10:As per the final order for the following:
REASONS
9. ISSUE NO.1 & 2: These issues are in respect of title over the suit property. Therefore, to avoid repetition of facts & evidence and also for convenience they are taken together for consideration.
10. In the instant case, there is no dispute that, suit property was the selfacquired property of deceased, plaintiff and deceased are direct brothers, deceased died on 13.06.2010 in Bengaluru. Plaintiff claims right over the suit property as a sole legatee of the Will of the deceased and also as his legal heir. Defendant denied the execution of Will by deceased. She contends that Ex.P. 2 Will was created and concocted by the plaintiff to knock off the suit property. She contends that she 13 OS.26787/2010 being the legally wedded wife of deceased succeeded to the suit property as his legal heir.
11. Plaintiff who was examined as PW1 has reiterated and reaffirmed the plaint averments. He produced Ex.P.2 Will dated: 22.12.2005, Ex.P. 3 letter of deceased addressed to plaintiff appended with 9 documents, Ex.P. 9 to 15 medical bills, Ex.P. 16 khata certificate, Ex.P. 17 khata extract, Ex.P. 18Tax paid receipts, Ex.P. 20 to 24 letters of deceased addressed to plaintiff, Ex.P.25 to Ex.P. 37 bills, invoices, estimate for doing electrical and other works in the suit property, Ex.P. 38 certificate issued by Standard Chartered Bank, Ex.P. 39 to 59 account statements, Ex.P. 60 certified copy of deposition of defendant in O.S. No. 26060/2010, Ex.P. 61 joint memo and Ex.P. 62 certified copy of decree in O.S. No. 26060/2010.
12. PW.2 V.S.Hanumanthu has stated that deceased was his friend. On 22.12.2005 deceased made Ex.P. 2 Will. After deceased put his signature on Ex.P. 2 Will, he and another witness by name Jayaram put their signatures by mentioning 14 OS.26787/2010 their addresses and phone numbers. PW.2 has stated that at the time of making Ex.P. 2 Will, the deceased was hail and healthy.
13. Defendant who was examined as DW1 has reiterated and reaffirmed the written statement averments. During the course of crossexamination of PWs1 and 2 by confronting defendant got marked Ex.D.1 to 20. Ex.D.1 to 17 are the photographs, Ex.D.18 is passport and Ex.D.19 is Insurance Policy of deceased and Ex.D.20 is the marriage certificate.
14. As I have already stated above, in the instant case, plaintiff is claiming right over the suit property on 2 counts. As legatee of the Will and also as legal heir of deceased. Defendant disputed Ex.P. 2 Will. It is settled positition of law that a 3 rd party who is not the heir of deceased would have no locus standi to question the Will that too made in favour of a heir of the deceased who would succeed to the estate of deceased even in the absence of the Will. Therefore, it is necessary for the court first 15 OS.26787/2010 to consider about the relationship of defendant with the deceased.
15. Admittedly, plaintiff is the direct brother of deceased. Plaintiff and deceased are Parsis. Therefore the estate of deceased would devolve as per chapter III of Succession Act. As per Sec.55 of Succession Act, plaintiff being the brother of deceased would succeed to his estate if the deceased had no lineal descendants or a widow or children. Admittedly, deceased has no issues. Defendant contends that, she being the widow of the deceased would succeed to his estate. Plaintiff contends that, defendant by suppressing that, she is the wife of John Stevens and through him, she is having two sons contracted second marriage with deceased. Therefore her 2 nd marriage with deceased as per Ex.D.20 marriage certificate is void.
16. Defendant to prove that, she is the wife of deceased is placing reliance on her testimony and the documents marked at Ex.D.1 to Ex.D.20. Ex.D.1 to 18 are the photos. During the course of cross examination of Plaintiff, when the learned 16 OS.26787/2010 counsel for the defendant confronted Ex.D.1 to 18 photos, plaintiff has admitted the said photos, therefore they were marked as Ex.D.1 to D.18. In the instant case, plaintiff is not denying that, defendant was residing with deceased by contending that, she is his wife. The contention of the plaintiff is that, defendant contracted marriage with deceased during the subsistence of her first marriage with John Stevens. Therefore the marriage of defendant with deceased as per Ex.D.20 Marriage Certificate is void.
17. Defendant in the written statement and also in her evidence has admitted that, she married to John Stevens and through him, she is having 2 sons namely Prithviraj & Devraj. In the cross examination she stated that, she married to John Stevens on 16/06/1989 as per the Hindu rights & customs. Therefore, the Hindu Marriage Act 1955 will apply to the marriage of defendant with John Stevens and therefore, for annulment of marriage, she has to take divorce as per section 13 of Hindu Marriage Act. Admittedly, defendant has not taken 17 OS.26787/2010 divorce from her husband John Stevens by filing divorce petition in the competent court of law. DW.1 in the cross examination has stated that her marriage with John Stevens was dissolved in the year 1992. But, she has not stated how the said marriage was dissolved. As I have already stated above in view of the statement of DW.1 that her marriage with John Stevens was solemnised at Kali Temple in Kolkatta as per Hindu rites and customs, for annulment of the said marriage, she has to take decree of divorce as per section 13 of Hindu Marriage Act. DW.1 in the crossexamination has fairly admitted that she is not having any document to show that her marriage with John Stevens was dissolved in accordance with law. DW.1 in the crossexamination at para No.2 has stated that on 30.05.1997 on which day, she contracted marriage with deceased, her 1st husband John Stevens was alive. She voluntarily stated that in the year 1996 her husband John Stevens contracted 2nd marriage with one Stella. Except the above voluntary statement of DW.1, defendant has not produced 18 OS.26787/2010 any document to show that in the year 1996 her husband John Stevens contracted second marriage with one Stella. For the sake of arguments, if the statement of DW.1 that in the year 1996 her husband John Stevens contracted 2 nd marriage with one Stella is believed, that itself is not sufficient to substantiate that on 30.05.1997 during the life time of her 1st husband John Stevens without obtaining divorce from the competent court, she was entitled to contract marriage with deceased on 30.05.1997. A perusal of Ex.D. 20 would show that the marriage of defendant with deceased was solemnised on 30.05.1997 as per provisions of Special Marriage Act 1954. Section 4 of the Special Marriage Act states about conditions relating to solemnisation of special marriage and it reads thus:
Conditions relating to solemnisation of special marriages:Notwithstanding anything contained in any other law for the time being in force relating to the solemnisation of marriages, a marriage between any two persons may be solemnised under this Act. If at the time 19 OS.26787/2010 of the marriage the following conditions are fulfilled, namely:
(a) Neither party has a spouse living:
(b) neither party
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind, or
(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity or epolepsy
(c) the male has completed the age of twentyoneone years and the female the age of eighteen years;
(d) the parties are not within the degrees of prohibited relationship;
Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and] 20 OS.26787/2010 [(e) where the marriage is solemnised in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends] [Explanation In this section, "custom", in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, group or family;
Provided that no such notification shall be issued in relation to the members of any tribe, community, group or family, unless the State Government is satisfied
(i) that such rule has been continuously and uniformly observed for a long time among those members;
(ii) that such rule is certain and not unreasonable or opposed to public policy; and
(iii) that such rule is applicable only to a family has not been discontiued by the family]
18. From the evidence of DW.1, it is clear that on 30.05.1997 her 1st husband John Stevens was alive and there is no document to prove that her marriage with John Stevens was 21 OS.26787/2010 dissolved in accordance with law. Section 24 of the Special Marriage Act deals regarding void marriages. As per section 24 of Special Marriage Act, if marriage is solemnised in contravention of section 4(a ) of Special Marriage Act ie., either party having spouse living at the time of marriage, the said marriage is void.
19. DW.1 in the crossexamination has stated that at the time of registration of her marriage with deceased on 30.05.1997 she orally informed the Registrar of Marriages about her 1 st marriage with John Stevens and she has not submitted any declaration in that regard.
20. Section 11 of Special Marriage Act deals regarding declaration by parties and witnesses to the marriage. It says that before solemnising of marriage the parties and 3 witnesses shall present before the Marriage Officer and they have to sign a declaration in the form specified in the III schedule of the Act and the declaration shall be countersigned by the Marriage Officer. A perusal of III schedule to the Special Marriage Act 22 OS.26787/2010 would show that there are 2 declarations in the said schedule. One declaration is by bridegroom and another by bride. The declaration of bride reads thus:
1. I am at the present time unmarried(for a widow or a divorcee, as the case may be)
2. I have completed...................years of age.
3. I am not related to the Bridegroom within the degree of prohibited relationship.
4. I am aware that if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to be true, I am liable to imprisonment and also to fine.
21. Thus, from section 11 of Special Marriage Act, declaration in the III schedule to the said Act, it is clear that before solemnisation of a marriage under Special Marriage Act, the bride has to give declaration that she is unmarried or widow or divorcee. Therefore, the say of DW.1 that at the time of solemnisation of her marriage with deceased on 30.05.1997, she orally informed the Marriage Officer about her first marriage with John Stevens and she has not submitted any declaration in 23 OS.26787/2010 this regard appears to be perse false. Thus, on evaluation of the fact stated by DW.1, it is clear that she contracted marriage with deceased by suppressing her first marriage with John Stevens. Therefore, as per section 24 of Special Marriage Act, her marriage with deceased is void. Therefore, defendant cannot be considered as legally wedded wife of deceased. Therefore, she cannot be considered as his heir to succeed his estate.
22. The learned counsel for the defendant has strenuously contended that from the facts stated by PW.1 and 2 in their crossexamination it is evident that during the lifetime of deceased, he and defendant lived as husband and wife. In Ex.D 18 passport and Ex.D 19 Insurance Policy of the deceased, he shown the defendant as his wife. When the deceased during his lifetime has considered the defendant as his wife and led marital life with her, plaintiff cannot dispute the legality of marriage of defendant with deceased.
23. PW.1 and 2 in the crossexamination have admitted that during the lifetime, deceased and defendant lived as 24 OS.26787/2010 husband and wife and the name of defendant was entered in Ex.D 18 passport and Ex.D 19 Insurance Policy as wife of deceased . Ex.D 18 and 19 are not the documents regarding the proof of the legality of marriage of defendant with deceased. Defendant is claiming right over the suit property on the count that she is the widow of deceased. To prove that she is the widow of deceased, she has to prove that her marriage with deceased was legal and valid. In the foregoing paras I have opined that at the time of contracting marriage with deceased on 30.05.1997 the marriage of defendant with her 1 st husband John Stevens was subsisting. Therefore, as per Section 24 of Special Marriage Act, her marriage with the deceased was void. In view of my said finding,the entry made in Ex.D 18 passport and Ex.D 19 Insurance Policy is not helpful to the defendant to substantiate her contention that she is the legally wedded wife of deceased. The defendant relying upon the entry made in Ex.D 18 passport and Ex.D 19 insurance policy could have file a suit for maintenance and other reliefs against the deceased 25 OS.26787/2010 during his life time. But, the said document would not help her to prove that she is the legally wedded wife of deceased to claim right in the property of decesed. In a suit in respect of title over the immovable property, the defendant has to establish that she is the legally wedded wife of deceased. Therefore, the contention of the defendant that during the lifetime deceased considered her as his wife and lead marital life, therefore, the plaintiff cannot question the legality of her marriage with deceased is not sustainable.
24. Admittedly plaintiff is the direct brother of deceased. The deceased has no issues and his parents predeceased him. Therefore, as per section 55 and scheduleII of Succession Act, plaintiff being the direct brother of deceased would succeed to his estate. Thus, the plaintiff proved that as a sole surviving legal heir of deceased, he would succeed to the suit property.
25. As I have already stated above in the instant case plaintiff in addition to his contention that he would succeed to the suit property as a sole surviving legal heir of deceased 26 OS.26787/2010 would contend that deceased has bequeathed his estate in his favour by making Ex.P. 2 Will. In view of my finding in the foregoing paras that plaintiff as sole surviving heir of the deceased would succeed to the suit property the proof or otherwise of Ex.P 2 Will would not disinherit him from succeeding to the suit property. Therefore, the finding on proof of Will does not assume much importance.
26. To prove Will, plaintiff has examined PW.2 the attesting witness to Ex.P. 2 Will. Defendant contends that the said Will was created by the plaintiff to knock off the suit property. In the foregoing paras I have opined that defendant is not the legally wedded wife of deceased. In view of my said finding, she would not succeed to the estate of deceased by succession. Therefore, she has no locus standi to dispute the will made by the deceased.
27. The Hon'ble Suprme Court of India in the case of M.B.Ramesh(Dead by LRs) Vs K.M. Veeraje Urs(Dead by LRs and others)(Civil Appeal No.1071/06, DD. 3.05.2013) reported 27 OS.26787/2010 in 2013(8) SCR 573, while dealing with the standard of evidence required to prove the Will has held as under:
A Will has to be proved like any other document, except that the evidence should additionally satisfy the requirements of sec.63 of Indian Succession Act and Sec.68 of Evidence Act.
28. In the instant case, the plaintiff to prove that the deceased has bequeathed his estate in his favour has produced Ex.P 2 the original Will. PW.2 on oath has stated that in his presence deceased executed Ex.P 2 Will by putting his signature and after the deceased put his signature on the said Will, he and another witness by name Jayaram P subscribed their signatures as attesting witnesses and also mentioned their phone numbers and addresses. The statement of PW.2 on oath is the direct evidence to prove that the deceased has made Ex.P 2 Will. DW.1 in the crossexamination has admitted that PW.2 and another witness of Ex.P 2 Will namely Jayaram P were the friends of the deceased. A perusal of deposition of PW.2 a senior citizen would 28 OS.26787/2010 show that he stated true facts before the court. In the cross examination of PW.2 nothing has been elicited to disbelieve his testimony that in his presence the deceased put his signature on Ex.P 2 Will and he and another witness namely Jayaram have put their signatures in presence of the deceased. Thus the plaintiff by examining PW.2 has complied the requirement of section 68 of Evidence Act to prove the due execution of Ex.P 2 Will.
29. PW.2 on oath has stated that at the time of making Ex.P 2 Will, the deceased was hale and healthy and he was having a sound disposal state of mind. In the cross examination of PW.2, nothing has been elicited to disbelieve the said testimony. It is not the contention of defendant that as on the date mentioned in Ex.P 2 Will the deceased was not having sound state of mind.
30. The Learned counsel for the defendant submits that the signature of testator on Ex.P 2 Will would not tally with the signature of deceased on Ex.D 18 passport. The evidence of 29 OS.26787/2010 PW.2 who is admittedly the friend of deceased is a direct evidence to prove that signature on Ex.P 2 Will is the signature of the deceased. The defendant who contends that the signature on the Ex.P 2 Will is not the signature of the deceased, has not taken steps for appointment of handwriting expert. Therefore, there is no expert evidence on record about the signature of the deceased on Ex.P 2 Will. When such is the case, as per sec.73 of Indian Evidence Act, the court is having power to compare the admitted signature of the deceased on Ex.D 18 passport with the disputed signature on Ex.P 2 Will. In the instant case, plaintiff has produced Ex.P 3 and Ex.P 20 to 24 letters of the deceased addressed to plaintiff. The defendant in the cross examination has admitted that the said letters were written by deceased . In Ex.P 3 and Ex.P 20 to 24 the deceased signed as Dr. Dandiwala. In Ex.D 18 passport he signed as Kurshed Dandiwala. In Ex.P2 a full signature as Khurshed Homi Dandiwala was made. The stroke and basic features of signatures of the deceased on Ex.P 3, Ex.P 20 to 24 letters , 30 OS.26787/2010 Ex.D 18 passport and Ex.P 2 Will appear to be similar and alike.
31. The learned Counsel for the defendant placed reliance on the following judgments;
1) AIR 1982 SC 133(Smt. Indu Bala Bose and others Vs Manindra Chandra Bose and another)
2) AIR 1977 SC 74(Jaswant Kaur Vs Amrit Kaur)
3) AIR 1962 SC 567(Rani Purnima Debi and another Vs Kumar Khagendra Narayan Deb and another)
32. I went through above cited judgments regarding suspicious circumstances, burden of proof and the effect of propounder taking part in execution of the Will to get the entire estate of the deceased or lion share in the estate of the deceased.
33. Except plaintiff there are no any other legal heirs to deceased. Therefore, the question of executing will with an intention to disinherit any of the legal heir of the deceased would not arise. A perusal of Ex.P 3 and Ex.P 20 to 24 letters would show that deceased was in good terms with plaintiff , 31 OS.26787/2010 therefore, he was writing letters to him. Defendant in the cross examination has admitted that plaintiff was providing financial assistance to deceased. Plaintiff (PW.1) on oath has stated that about 8 months prior to the death, the deceased had acute back problems due to rupture of discs in the spine. In addition to that he had high blood pressure, cholesterol and also having tumor in the lever. In the crossexamination of PW.1 nothing has been elicited to disbelieve the above testimony regarding the health condition of deceased. Plaintiff has produced Ex.P 9 to 15 medical bills and receipts regarding providing medical aid to the deceased. Therefore, the contention of defendant that the deceased was not in good terms with the plaintiff , therefore, there was no reason for the deceased to make a Will in favour of plaintiff does not hold water.
34. Admittedly, defendant had filed O.S.No. 26060/2010 against plaintiff seeking the relief of injunction. Ex.P 60 is the deposition of defendant in the said case. A perusal of cross examination of defendant in the said case would show that at 32 OS.26787/2010 the time of death of deceased, the defendant was not with him and she had been to her native place. Defendant(DW.1) in the crossexamination of this case at page No.3 has stated that one month prior to the death of the deceased, she went to Gowhati to visit her parents. The above statement of DW.1 would support the contention of the plaintiff that defendant was not looking after the deceased properly and when he was unwell she went to her native place leaving him alone in the suit property. A perusal of Ex.P3 letter would show that the deceased sent the documents of suit property to the plaintiff through courier service. A perusal of Ex.P 16, khata certificate, Ex.P 17 khata extract, Ex.P 18 and 19 tax paid receipts, would show that after the death of deceased, the name of plaintiff was entered in the BBMP records of the suit property. Defendant in the cross examination has admitted that plaintiff has been paying tax of the suit property and also maintenance charges. Thus, the evidence on record would support the case of the plaintiff that immediately after the death of the deceased, he acted upon on 33 OS.26787/2010 Ex.P 2 Will. Thus, there is sufficient evidence to prove that deceased has executed Ex.P 2 Will bequeathing his estate in fvour of plaintiff. In view of my finding that the defendant is not the legally wedded wife of deceased, therefore, she would not succeed to the estate of deceased, hence, she has no locus standi to question Ex.P 2 Will I am of the view that the contention of the defendant that the Will is surrounded by suspicious circumstances in view of nothing was given to her does not hold water. In view of the above I hold that plaintiff by examining himself as PW.1 and PW.2 the attesting witness has proved that the deceased has executed the Ex.P 2 Will when he was in a sound state of mind bequeathing his estate in his favour and also appointed him as executor of the Will. In view of the above, I hold that plaintiff proved that he became the owner of the suit property by succession and also as a legatee of the Will. In view of the above, I answer Issue No.1 and 2 in the Affirmative.
34
OS.26787/2010
35. ISSUE NO.3: While answering Issue No.1 and 2, I have held that plaintiff proved that he is the owner of suit property . The defendant failed to prove that she is the legally wedded wife of the deceased, therefore, after his death, she would succeed to the suit property. Defendant except putting the contention that as a widow she would succeed to the suit property which she failed to establish has not putforth any other contention to substantiate that she is having legal right to continue in possession of suit property after the death of deceased. Therefore, she has no option except to vacate and handover the vacant possession of the suit property to the plaintiff, the owner of the suit property. In view of the above I hold that the plaintiff is entitled for the possession of the suit property. Accordingly, I answer Issue No.3 in Affirmative.
36. ISSUE NO.4 TO 9: On 30.11.2020 the counsel for the plaintiff filed memo stating that the plaintiff restricts the suit for the relief of declaration and possession. In view of the said memo, issues No.4 to 9 would not survive for consideration. 35
OS.26787/2010 Accordingly they are answered as would not survive for consideration.
[
37. ISSUE NO.10: In view of my reasons and findings on the above issues, I pass the following:
ORDER Plaintiff's suit is decreed.
Plaintiff is declared as the absolute owner of the suit Property.
Defendant is directed to vacate and handover the vacant possession of the suit property to the plaintiff within a month. On her failure, plaintiff is at liberty to take possession of the suit property through court process.
No order as to costs.
****** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 16 th day of December 2020) (MOHAMMED MUJEER ULLA C.G.) 36 OS.26787/2010 C/C. IV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) ANNEXURES: LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 SRI. Burjor H. Dandiwala PW2 Sri. V.S.Hanumanthu
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Death certificate of deceased Sri. Khurshed Homi Dandiwala Ex.P.2 Will dated: 22.12.2005 Ex.P.3 Letter Ex.P.4 Sale deed dated: 27.11.1996 Ex.P.5 Certificate issued by BBMP Ex.P.6 Notice issued by Ex.P.7 property tax assessment Ex.P.8 Article of agreement Ex.P.9to 15 Medical bills Ex.P.16 Khata certificate Ex.P.17 Khata extract Ex.P. 18 & 19 Tax paid receipts Ex.P.20 to 24 Letters Ex.P.25 to 36 Bills Ex.P.37 Estimate Ex.P.38 Certificate issued by Standard Chartered Bank Ex.P.39 to 59 Statements of Standard Chartered Bank 37 OS.26787/2010 Ex.P. 60 Certified copy of deposition of defendant in O.S. No. 26060/2010 Ex.P. 61 Certified copy of Joint memo of undertaking in O.S. No. 26060/2010 Ex.P. 62 Certified copy of decree in O.S. No. 26060/2010 LIST OF WITNESS EXAMINED FOR THE DEFENDANTS:
DW1 Smt. Mala Chowdhary Dandiwala LIST OF DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D.1to 17 Photographs
Ex.D.18 Passport
Ex.D.19 Insurance policy
Ex.D.20 Marriage certificate
(MOHAMMED MUJEER ULLA C.G.)
C/C. IV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) 38 OS.26787/2010 39 OS.26787/2010