Bangalore District Court
Mr. S. Sachidanandaswamy vs Mr. V Devanesan on 9 February, 2023
KABC0A0024922015
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri. P. G Chaluva Murthy,
M. A. L.L.M
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 9th day of February, 2023.
O.S.No.25581/2015
Plaintiffs:- 1. Mr. S. Sachidanandaswamy,
S/o Late R. V Shankar,
Aged about 31 years,
R/at No.11, Aditya Soigne,
Panache Block, Shivananda Nagar,
New Thippasandra Post,
Bangalore-560 075.
2. Mr. S. Mahadevaswamy,
S/o Late R. V Shankar,
Aged about 28 years,
R/at No.11, Aditya Soigne,
OS No.25581/2015
2
Panache Block, Shivananda Nagar,
New Thippasandra Post,
Bangalore-560 075.
[By Sri. M. A Sebastian -Adv]
V/s
Defendants:- 1. Mr. V Devanesan,
S/o Late R. Vasudevan,
Aged about 65 years,
R/at No.18/25, Chakravathy Nagar,
Ayanavaran, Chennai-23,
Since Defendant No.1 died on
11.04.2021 represented by Lrs;
1(a). Smt. Alamelu,
Aged about 67 years,
W/o Late V. Devanesan,
R/at No.18/25, Chakravathy Nagar,
Ayanavaran, Chennai-23,
Tamil Nadu-600023.
1(b). Mr. D Karthikeyan,
Aged about 39 years,
S/o Late V. Devanesan,
R/at No.18/25, Chakravathy Nagar,
Ayanavaran, Chennai-23,
Tamil Nadu-600023.
1(c). Mr. D Shanmugapriyan,
Aged about 36 years,
S/o Late V. Devanesan,
R/at No.18/25, Chakravathy Nagar,
Ayanavaran, Chennai-23,
Tamil Nadu-600023.
OS No.25581/2015
3
2. Mr. Anjan Karunakaran,
Aged about 34 years,
S/o Late Karunakaran,
No.373, 2nd Floor,
100 Feet Road, Indiranagar,
HAL II Stage,
Bangalore-560 008.
3. Mrs. Lojan Karunakaran,
Aged about 35 years,
S/o Late Karunakaran,
No.373, 2nd Floor,
100 Feet Road, Indiranagar,
HAL II Stage,
Bangalore-560 008.
4. Mr. D Sundarrajan,
Aged about 44 years,
S/o Late Mr. Durai & Shakthi,
No.67, Vakil Marina Layout,
(Opp. Janapriya Lakeview Apts.)
Kodichikkanahalli,
Bangalore-560 076.
[Defendant No.3- Exparte]
[By B. M Associates- Adv]
[By BGS- Adv for LR of D1, MS Adv for
D2 & SA Adv for D4]
Date of Institution of the suit 27.06.2015
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Partition Suit
for injunction, etc.)
Date of the commencement of
13.12.2018
recording of the Evidence.
OS No.25581/2015
4
Date on which the Judgment was 09.02.2023
pronounced.
Year/s Month/s Day/s
Total duration 07 07 13
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
The plaintiffs are before this court seeking partition of the property bearing No.373, situated at 2nd Stage, Indiranagar, Bangalore, for mesne profits and for other consequential reliefs
2. The epitome of the case of the plaintiffs is that, they are children of Late R. V Shankar S/o Late R Vasudevan and Late Dhanabhagyam. The defendant No.1 is the brother of plaintiffs father and the defendant Nos.2 and 3 are the children of Late Karunakaran and another brother of plaintiffs father and defendant No.4 is the son of Late Shakthi- sister of plaintiffs father. According to plaintiffs, their grandfather R. Vasudevan had three sons and a daughter, who are referred to above. The property in OS No.25581/2015 5 question was formed by BDA in HAL 2nd Stage, Indiranagara, Bangalore and the same was belonged to their grandfather R. Vasudevan, who purchased the same under the condition sale deed dtd.20.01.1979. R Vasudevan died intestate on 19.06.1980, leaving behind his wife Mrs. Dhanabhagyam and children and later wife Dhanabhagyama died on 16.02.1998 leaving behind a registered Will dtd.16.12.1997. The said Will was executed by Smt. Dhanabhagyam under a misconception of law and the katha got transferred in her name, after the death of R Vasudevan. Therefore the said Will dtd.16.12.1997 is void as Smt. Dhanabhagyam had no absolute right to execute the Will. The plaintiffs and the defendants are in possession and enjoyment of the suit schedule property. There is no partition between the parties by metes and bounds and the defendants inspite of repeated demands have not come forward to effect partition and equitable distribution of the property. Therefore the plaintiffs approached this court seeking partition and allotment of their 1/4th share in the suit schedule property.
OS No.25581/2015 6
3. Pursuant to summons, the defendant No.3 remained exparte. The other defendants entered appearance through their respective counsels. The defendant No.1 in his written statement while admitting the relationship of the parties and also the mode of acquisition of the property by his father R Vasudevan under the registered sale deed dtd.21.01.1979, contended that, the mother of the defendant No.4 predeceased R. Vasudevan in the year 1973 and as such the defendant No.4 is not having any share in the suit schedule property. The defendant No.1 while admitting the execution of Will by Smt. Dhanabhagyam contended that, interms of the Will the schedule properties were partitioned by metes and bounds into three different portions and respective katha transferred in their names and they are enjoying their respective shares individually by paying taxes to the respective portions. The plaintiffs also developed their southern portion of the property, which was allotted to the share of their parents and they are running stay accommodation in the said portion and deriving income and they are in peaceful possession and enjoyment of their share of the OS No.25581/2015 7 property. The defendant No.1 has also leased out his share to the third parties and getting monthly rentals.
It is further stated by the defendant No.1 that, the father of the plaintiffs had purchased the property at Yelahanka from the income of his mother and the defendant No.2 father and mother. The plaintiffs father also purchased immovable property in Kumaraswamy Layout by borrowing money from the defendant No.2's father. But the plaintiffs failed to repay the said amount. When the said amount was demanded by the defendant Nos.2, the above false suit is filed by the plaintiffs. According to defendant No.1, the suit schedule property was divided in the year 1998 itself by metes and bounds and suit is filed after lapse of 17 years and as such there is no cause of action for this court and therefore the defendant No.1 sought for dismissal of the suit.
4. The written statement of the defendant No.2 is replica of the written statement filed by the defendant No.1. On perusal of the written statement of defendant No.2, it is verbatim repetition of written statement of defendant No.1. The defendant No.2 OS No.25581/2015 8 also while contending that the suit schedule property was partitioned in the year 1998, sought dismissal of the suit.
5. The defendant No.4 in his written statement while admitting the mode of acquisition of the property by R Vasudevan and the relationship of the parties, he also contended that the alleged Will executed by Smt. Dhanabhagyam on 16.12.1997 is invalid, since she had no absolute right over the property. No share was allotted to the mother of defendant No.4 in the suit schedule property and as such defendant No.4 is also entitled for 1/4th share in the suit schedule property. Therefore the defendant No.4 while supporting the case of the plaintiff sought a share in the suit schedule property.
6. During the pendency of the suit, the defendant No.1 died and his legal heirs were brought on record. The legal heirs of defendant No.1 filed memo adopting the written statement of their father.
OS No.25581/2015 9
7. Based on the pleadings of the parties, my learned Predecessor has framed the following issues:
1. Whether plaintiffs prove that the suit schedule property is their ancestral property, belonging to their grandfather Sri. R. Vasudevan S/o.
Chinnappa Mudaliar?
2. Whether the plaintiff proves that the registered Will deed dt.
16.12.1997 is void abinitio, as their grandmother Smt. Dhanabhagyam did not have absolute right to bequeath the suit scheduled property as on the death of Mr. R.Vasudevan?
3. Whether the defendant No.1 proves that Mrs. Shakti (mother of the 4th defendant) predeceased R. Vasudevan in the year 1973, before the purchase of the suit schedule property by R. Vasudevan and hence 4th defendant is not entitled for any share in the suit schedule property?
4. Whether the defendant No.1 proves that already there is partition in respect of suit schedule property as per the Will of Mrs. Dhanabhagyam inbetween the father of the plaintiff's, 1st defendant and father of the defendant Nos. 2 and 3 as averred in para Nos.9 and10 of the written statement?
OS No.25581/2015 10
5. Whether the suit of the plaintiff is bad for not bringing all the properties on the hotch-pot?
6. Whether the plaintiffs prove that they are entitled for collective 1/4th share in the suit schedule property, as prayed for by them in the suit plaint?
7. Whether the plaintiff proves that they are entitled for mesne profits from the date of filing of this suit till its realization?
8. What order or decree?
8. The plaintiff No.1 got himself examined as PW1 and got marked 14 documents and closed their side.
The defendant No.1 got himself examined as DW1 and got marked Ex.D1 to Ex.D17. Defendant No.4 was got himself examined DW2 and no documents are marked. One of the independent witness was examined as DW3 and the defendants closed their side.
OS No.25581/2015 11
9. Heard the counsel for both the parties and both parties filed citations. The defendant No.4 filed written arguments.
10. Perused the evidence and documents on record. On appreciation of the evidence on record, my findings on the above issues are as under:
Issue No.1 : In the Affirmative;
Issue No.2 : In the Negative;
Issue No.3 : In the Affirmative;
Issue No.4 : In the Affirmative;
Issue No.5 : In the Affirmative;
Issue No.6 : In the Negative;
Issue No.7 : In the Negative;
Issue No.8 : As per final order for the following:
REASONS
11. Issue No.1:-
The case of the plaintiffs is that, the suit schedule property bearing No.373, formed by the BDA in HAL 2nd Stage, Indira Nagar, Bangalore, measuring east to west 90 feet and north to south 60 feet was allotted to the father of the plaintiffs by name R. Vasudevan S/o Chinnappa Mudaliar, under the conditional sale deed dtd.20.01.1979. But said R Vasudevan died intestate on 19.06.1980 leaving OS No.25581/2015 12 behind his wife, a daughter and three sons. The plaintiffs are claiming to be the children of R Shankar, the last son of R Vasudevan. According to plaintiffs, the suit schedule property is the self acquired property of their grandfather R Vasudevan.
12. The defendants not disputed the relationship of the parties with the defendants. Infact the defendant Nos.1 and 2 in their written statement at Para No.7 specifically pleaded that the suit schedule property was purchased by R Vasudevan under the conditional sale deed dtd.20.01.1979. Therefore absolutely there is no dispute between the parties, in so far as mode of acquisition of the property is concerned. Even in the affidavit of the witnesses on both the sides, there is no dispute between the parties regarding purchase of the suit schedule property by R. Vasudevan.
13. Ex.P4 is the certified copy of the sale deed under which R Vasudevan purchased the suit schedule property from BDA. Even otherwise the defendants also produced the certified copy of sale deed at Ex.D4 executed infavour of R Vasudevan by OS No.25581/2015 13 the BDA in the year 1979. Therefore without much discussion, Issue No.1 is answered in the Affirmative.
14. Issue Nos.2 and 4:-
These two issues are very material and Since finding on one issue is having bearing on the other, inorder to avoid repetition of facts, the above issues have been taken up together for consideration.
These two issues revolve around a Will dtd.16.12.1997 said to have been executed by Smt. Dhanabhagyam. Having regard to the nature of dispute between the parties, it is necessary to disuses both the issues together. The plaintiffs pleaded that the Will dtd.16.12.1997 is viod abinitio since their grandmother Smt. Dhanabhagyam did not have absolute right to bequeath the suit schedule property infavour of her children. According to defendant No.1, pursuant to Will, the parties have partitioned the properties interms of the Will and they are in possession and enjoyment of their respective shares by getting katha transferred in their respective names and the said partition has been acted upon by OS No.25581/2015 14 all the parties. Therefore according to defendant No.1, the suit of the plaintiffs is not maintainable.
15. The arguments of the learned counsel for the parties is on the aforesaid lines. The learned counsel for the plaintiffs contended that, the origin of the property is not in dispute and equally the relationship of the parties. The learned counsel submits that R Vasudevan died on 19.06.1980 leaving behind his wife and three sons, his wife died in the year 1998 and the father of the plaintiffs died in the year 2003. The plaintiffs specifically contended that, since the suit schedule property was the self acquired property of R Vasudevan, his wife Smt. Dhanabhagyam had no absolute right to execute Will infavour of her sons. U/Sec.8 of the Indian Succession Act, all the children being class-1 heirs are entitled for equal share in the suit schedule property. Without the consent of the plaintiffs or the defendant No.4, the alleged Will was executed by Smt. Dhanabhagyam and therefore the said Will is void abinitio. The learned counsel for the plaintiffs while referring to the cross examination of DW1, contended OS No.25581/2015 15 that, there is no partition or family arrangements as contended by the defendant Nos.1 and 2 and therefore the plaintiffs are entitled for 1/4th share in the suit schedule property.
16. Percontra, the learned counsel for the defendant Nos.1 and 2 contended that, the plaintiffs have not sought for the relief of declaration declaring the Will as void abinitio. The father of the plaintiffs not challenged the family arrangement during his lifetime. The learned counsel while referring to the cross-examination of PW1 contended that, the family arrangement was acted upon and the Will has been proved in accordance with law. The PW1 categorically admitted regarding acting upon the family arrangement by the parties. Even the plaintiffs got the katha transferred in their names and they are enjoying their respective property. The learned counsel while referring to several documents produced at Ex.D1 to Ex.D17 contended that the documents and the conduct of the parties clearly establish that the family arrangement of the year 1998 has been acted upon by the respective parties OS No.25581/2015 16 and the existence of the Will was within the knowledge of the plaintiffs, which is evident from the admissions in the cross-examination of PW1. No one has questioned the Will all these years and as such the plaintiffs cannot maintain the above suit. It is also the submission of the learned counsel for the defendant Nos.1 and 2 that, there is no pleadings regarding inequitable partition and allotment of shares by the plaintiffs and when the parties have acted upon the family arrangement, they cannot question the same at this length of time. The learned counsel for the defendant Nos.1 and 2 relied on the following rulings:-
1. (1976) 3 SCC 119; 2. 1969 (3) SCC 330; 3.
(1976) 1 SCC 214; 4. RFA No.313/2008; 5. (2007) 6 SCC 120; and 6. AIR 2004 SC 2421.
17. The learned counsel for the defendant No.4 contended that, her mother was entitled for 1/4th share in the suit schedule property and the alleged Will or family arrangement is not binding on the share of the defendant No.4. According to defendant No.4 there was no reason to exclude the mother of the OS No.25581/2015 17 defendant No.4 from the Will and her grandmother had no absolute right to execute the Will. It is further contended that the family arrangement has not been proved by the defendant Nos.1 and 2 and as such the defendant No.4 is also entitled for share in the property. The defendant No.4 also relied on couple of rulings while referring to the evidence of the parties.
18. Bearing in mind the rival contentions let me appreciate the evidence and documents on record. After the death of R Vasudevan, his wife Smt. Dhanabhagyam and her children i.e., Devanesan, Karthikeyan and R V Shankar had inherited the suit schedule property. The mother of the defendant No.4 admittedly died in the year1973. R V Shanker, the father of the plaintiffs died in the year 2003. Now the question before this court is whether the defendants are relying on the Will said to have been executed by Smt. Dhanabhagyam or on the basis of the family arrangements entered into between the parties in the year 1998. The learned counsel for the defendant Nos.1 and 2 as aforesaid contended that after the death of R Vasudevan, Smt. OS No.25581/2015 18 Dhanabhagyam executed the Will and on the basis of the Will there was family arrangement entered into between the parties and it is acted upon.
19. The plaintiff No.1 filed his affidavit in lieu of oral evidence and reiterated plaint averments, regarding relationship of the parties and acquisition of the property by his grandfather R Vasudevan and the execution of the Will by Smt. Dhanabhagyam dtd.16.12.1997 without authority of law and their right in the suit schedule property to an extent of 1/4th share etc. He relied on 14 documents, Ex.P1 is the death certificate of R Vasudevan, who died on 19.06.1980, which is not in dispute, similarly Ex.P2 is the death certificate of father of the plaintiffs, who died on 11.05.2003, which is also not in dispute, Ex.P3 is the death certificate of Smt. Dhanabhagyam, who died on 16.02.1998, Ex.P3(a) is the translated copy of death certificate of Smt. Dhanabhagyam, Ex.P4 is the certified copy of the sale deed of the year 1979 under which the R Vasudevan purchased the suit schedule property from the BDA, Ex.P5 is the certified copy of the Will OS No.25581/2015 19 said to have been executed by Smt. Dhanabhagyam in the year 1979, Ex.P6 is the legal notice issued by the plaintiffs to the defendants calling upon them to effect partition and allot their shares in the suit schedule property. Ex.P6(a) to (h) are the postal receipts, postal acknowledgments and unserved postal envelope. Ex.P7 is the katha extract which is standing in the joint names of plaintiffs inrespect of property bearing Municipal No.372/2, Ex.P8 is the tax paid receipt, Ex.P9 to12 are the photographs, Ex.P13 is the CD and Ex.P14 is certificate U/Sec.65B of Evidence Act. Issuance of notice is not in dispute and the existence of the suit schedule property is also not in dispute. Therefore it is unnecessary to discuss all the above documents placed on record.
20. Coming to the cross-examination of PW1, the witness admitted that he came to know about the existence of Ex.P5 Will in the year 2014, after the death of his mother and he obtained the same from the office of Sub-Registrar. Admittedly he has not pleaded as to in whose possession the original Will is. PW1 stated that he is not beneficiary under the OS No.25581/2015 20 Will and his father is the beneficiary. The PW1 further states that he is residing in the address shown in the plaint schedule, since last six years. According to witness, he has purchased the said property in the month of December 2012 and the same is purchased by the plaintiff No.2. Of-course the said property is not the subject matter of the above suit. In the further cross-examination the PW1 stated that in the year 1986-87, his father shifted to Yelahanka and he was serving in ESCORTS company. The fact admitted by PW1 is that, the father of the defendant No.2 was staying with his grandmother in the suit schedule property. The cross-examination at 2nd paragraph in Page No.10, is inrespect of the property purchased by the father of the plaintiff - R V Shankar, which is not the subject matter of the above suit. However the witness pleaded ignorance regarding, suggestion that his grandmother and father of the defendant No.2 have contributed to purchase the said building, found in Ex.D1.
OS No.25581/2015 21
21. In so far as the Will is concerned, there is cross-examination from Page No.13 onwards. When it was suggested to the witness that, his grandmother on discussion with her three sons i.e., father of the PW1, the father of the defendant No.2 and 3 has made family arrangement and in the consequences had got written the Will dtd.16.12.1997, the witness has not denied the suggestion, but pleaded ignorance. However the witness voluntarily stated that he was aware about the Will executed by his grandmother at Ex.P5. The fact admitted by this witness is that, at the time of writing of the Will, his father R Shankar was also possessing a property and equally the defendant No.1. However the witness pleaded ignorance when suggested that his grandmother by considering the circumstances and the situation in the family with consent of all her sons has made family arrangement by writing a Will at Ex.P5. It is significant to note that the PW1 has not denied the execution of the Will with the consent of all her sons, but only pleaded ignorance. Similar suggestion that, the defendant No.4 had received amount in cash at the time of execution of the Will at OS No.25581/2015 22 Ex.P5 and has signed the said document, the witness pleaded ignorance.
22. The important suggestion that, pursuant to Will, the three sons of Smt. Dhanabhagyam got partitioned the property amongst themselves, got transferred the katha in their respective names has not been denied by PW1, but only feigns ignorance. When it was specifically suggested to the witness that, 900 Sq.ft property on the southern side of the suit schedule property was fallen to the share of his father in the said partition and the name of his father was entered inrespect of the property, the witness denied the same. However the witness voluntarily stated that the said property was standing in the name of his mother and the witness does not know the reason for entering the name of his mother as kathedar of the property to an extent of 900 sq.ft bearing katha No.373/2. Equally the suggestion that the northern portion of the suit schedule property measuring 900 sq.ft was fallen to the share of defendant No.1 as per katha No.373/1, the witness pleaded ignorance.
OS No.25581/2015 23
23. At this stage it is necessary to refer couple of documents produced by the plaintiffs themselves at Ex.P7 and 8. Ex.P7 is the katha certificate inrespect of property No.373/2 which is exclusively standing in the names of plaintiffs. Ex.P8 is the tax paid receipt for the year 2018-19 by the plaintiffs to the BBMP inrespect of the said property. No explanation is offered by the plaintiffs as to how they are paying taxes to a portion of the suit schedule property bearing No.373/2. In the pleadings nowhere the plaintiffs have stated that they are in possession of a portion of property bearing No.373/2.
24. Be that as it may. When it was suggested to the witness that, after the death of their mother, the plaintiffs got transferred the katha pertaining to the property bearing katha No.373/2, the witness categorically admitted the same. It is the specific admission that they are in possession of the said portion of the property since January 2003 and they had given the said property on rent and collecting rents since 2012. Prior to that, his mother was collecting rents. The said admissions could be found OS No.25581/2015 24 at Page No.15, Para No.2 of the cross-examination. Similarly the witness admitted that the defendant No.1 is in possession of the northern portion of the suit schedule property bearing katha No.373/1 and he had also given said property on rent. The further admissions of PW1 is that, the defendant Nos.2 and 3 are in possession of the western portion of the suit schedule property measuring 45 X 50 feet, bearing Katha No.373 and they have given the said property on rent.
25. Ex.D2 is a color photo print shown to the witness, wherein he had admitted that building shown in the said photograph was allotted to the share of his father. Admittedly the property bearing No.373/2 was consisting of a ground level floor when it was allotted to the share of his father, thereafter his mother got constructed first level floor and 2 nd level floor over it. Similarly the witness admitted that in the property allotted to the defendant No.1, a Dental Care Clinic is existing in the building shown at Ex.D3- photograph. Similarly, the building which was allotted to father of the defendant No.2 is leased out OS No.25581/2015 25 to one Samsonite Showroom and it was constructed by the father of the defendant No.2 admittedly. In the cross-examination the witness admitted that the southern portion and the northern portion was fallen to the share of his father and defendant No.1 is having separate access to the property from 100ft Indiranagara Road.
26. In the further cross-examination dtd.19.07.2019, again there are several suggestions regarding family arrangement in the year 1998 and the parties applying to the BBMP authorities for transfer of katha in their respective names. The important admissions of PW1 is that, after the death of his mother, himself and the plaintiff No.2 had filed an application to get their names mutated in the records of the property standing in the name of their mother. The application submitted by the plaintiffs are marked at Ex.D4. In so far as Will is concerned, the witness at Page N.19 the PW1 admitted that alongwith the Ex.D4-application which was given to the BBMP authorities seeking transfer of katha in their names, they had given the copy of Will also OS No.25581/2015 26 executed by their grandfather in addition to encumbrance certificate and two endorsements issued by the BBMP dtd.26.10.2012 etc. The said enclosures are marked in the cross-examination of PW1 at Ex.D4(b) to (l). The witness also admitted the joint affidavit filed by the plaintiffs on 28.02.2005 which is confronted and marked at Ex.D5. It is admittedly no objection affidavit sworn to by the plaintiffs expressing no objection to enter the name of his mother inrespect of the property bearing No.373/2 by deleting the name of their father. Admittedly his father has not challenged the Will executed by his grandmother and the family settlement taken place inbetween father and his siblings.
27. At this stage it self it is necessary to refer some of the material documents produced by the defendants. Ex.D4 is letter addressed to the ARO, Jeevanbheemanagar and the plaintiff herein under the said letter produced the copy of Will and endorsement certificate to transfer the katha. Ex.D4(a) and (b) is the copy of the Will attached to the said letter by the plaintiffs herein. This letter is OS No.25581/2015 27 dtd.27.11.1998. As on the said date the plaintiffs were aware of the Will executed by Smt. Dhanaghayam and on the basis of the said Will, they got the katha transferred in their names. Ex.D4(c) is the encumbrance certificate inrespect of property No.373/2 which is in the name of plaintiffs. Ex.D4(d) is the endorsement issued by the BBMP directing the plaintiffs herein to produce title documents to transfer katha in the names of plaintiffs. This endorsement is dtd.26.10.2012, much prior to filing of the above suit by the plaintiffs. Ex.D4(e) is the application for katha registration submitted by the plaintiffs inrespect of property No.373/2, Ex.D4(g) is the conditional sale deed for vacant site under which R Vasudevan purchased the suit schedule property which is not in dispute, Ex.D4(h) is the family tree produced by the plaintiffs before the authorities, Ex.D4(i) is the affidavit of legal heirs sworn by the plaintiffs, Ex.D4(j) is the death certificate of Uma Devi- the mother of the plaintiff, Ex.D4(k) is the katha certificate which was standing in the name of mother of the plaintiff, Ex.D4(l) is the tax paid receipt in the name mother of plaintiffs, Ex.D5 is the no objection OS No.25581/2015 28 affidavit sworn by the plaintiffs stated that they have no objection to transfer the katha inrespect of property bearing No.373/2 in the name of their mother by deleting the name of their father.
28. The aforesaid documents were submitted by the plaintiffs seeking transfer of katha in the names of their mother, after the death of their father and subsequently in the names of plaintiffs, after the death of their mother. From these documents coupled with the admissions of PW1, it could be gathered that, the plaintiffs are enjoying independently bearing property No.373/2 by getting katha transferred in their names on the strength of the Will executed by Smt. Dhanabhaygam. Infact admittedly the plaintiffs produced the copy of Will before the BBMP authorities.
29. Coming to the evidence of defendants, the defendant No.1 filed his affidavit in lieu of oral evidence and reiterated written statement averments regarding execution of the Will by Smt. Dhanabhaygam dtd.16.12.1997 and subsequent family arrangement entered into between the parties OS No.25581/2015 29 and their enjoying their respective shares since 1998 independently. It is further stated that, the family arrangement was acted upon etc and relied on Ex.D6 to Ex.D17. Ex.D6 is the bunch of documents consisting of proceedings sheet, special notice U/Sec.149, 147 submitted to the BDA authorities under Right to Information Act, relating to bifurcation of katha inrespect of property No.373, in the year 1998-99 and the documents obtained under the Right to Information Act relating to the katha transfers as per Ex.D7 and 8, certified copy of the registered partition deed dtd.07.02.2004 as per Ex.D9 and four katha certificates and four katha extracts inorder to establish that there was family settlement in the year 1998 and all the parties acted upon the family settlement. Ex.D7 is the proceeding of BBMP under which the katha transferred in the names of plaintiffs inrespect of property bearing No.373/2 and necessary fee was collected by the BBMP. Ex.D8 is the proceedings of the BBMP for having transferred the katha inrespect of property No.373 in the name of defendant No.2 subsequent to death of his father. Ex.D9 is the certified copy of the partition deed OS No.25581/2015 30 entered into between the defendant No.2 and 3 inrespect of property which was allotted to the share of deceased Karunakaran in the year 2004. Ex.D10 to 17 are the katha certificates and katha extracts inrespect of property bearing No.373. 373/1 and 373/2 and 373/4. The aforesaid documents clearly establish that the plaintiffs and the defendant Nos.1 and 2 are enjoying their respective shares after the partition entered into between the parties, independently.
30. Coming to the cross-examination of Dw1, it is suggested to DW1 in the cross-examination that, somebody has forged the signature of the plaintiffs on Ex.P6 etc. All these suggestions have been denied by DW1. The cross-examination of DW1 in so far the Will is concerned could be found at last paragraph of the Page No.10, wherein the witness stated that his mother instructed a lawyer to write the Will and he was personally present at the time of writing the Will. There is suggestion to witness that, his brother R V Shankar has not given any written consent to his mother to write the Will. The said suggestion is OS No.25581/2015 31 denied by DW1. According to witness, the father of the plaintiffs had taken lead for writing the Will. In the further cross-examination again the witness was cross examined on the Will, suggesting that, an area measuring 916 sq.ft with a house was given to R V Shankar in the suit schedule property under the Will. Mr. Karunakaran is given 2250 sq.ft open space in the suit schedule property under the Will. A portion which was given to Karunakaran is facing 100 ft road at Indiranagar, which is also admitted by the witness. It is suggested to the witness that, the allotment made under the Will was not an equitable partition, for which the witness answered stating that since they were allotted houses, less area was given to them.
31. It is significant note that, nowhere in the pleadings the plaintiffs contended that there was unequal or no equitable partition of the properties under the Will. However the plaintiffs pleaded that their grandmother had no absolute right to execute the Will and therefore they are entitled for equal share in the suit schedule property. Nowhere the plaintiffs OS No.25581/2015 32 wishpered regarding their possession of portions of residential houses in the suit schedule property, after getting the katha transferred in their names that too in the year 2012, much prior to filing of the above suit. Of-course no share was allotted to his sister Shakthi under the Will. The remaining cross- examination are only stock suggestions, which are denied by DW1.
32. The DW3, one of the independent witnesses examined on behalf of the defendants, in his examination in chief stated regarding his aunt Smt. Dhanabhagyama executing a Will dtd.16.12.1997 bequeathing the different portions of properties to her sons etc. He was cross examined by the learned counsel for the plaintiffs and first two paragraphs of the cross-examination is regarding acquisition of the properties by R Vasudevan etc. At the end of the first page, the witness stated that he is not a witness to the Will and approximately Smt. Dhanabhagyam was aged about 70 years at the time of execution of the Will and the father of defendant Nos.2 and 3 was living with Dhanabhagyam. Of-course the witness OS No.25581/2015 33 has stated that, front portion of suit schedule property is having more market value that the rare portion. The witness also admitted that there is no equitable partition of the property amongst all the legal heirs. The suggestion that, the signatures of R V Shankar and V Devanesan were forged at the time of getting katha transferred, has not been denied by the witness, but pleaded ignorance. The remaining cross- examination is of no consequence, since he is not witness to the Will.
33. It is settled principle of law that, it is the propounder of the Will, who has to prove the valid execution of the Will in accordance with law. Now the defendant Nos.1 and 2 have set up the Will executed by Smt. Dhanabhagyam bequeathing the properties amongst three sons. The original Will has not been produced by the defendants. The attesting witness requires to be examined as contemplated U/Sec.68 of the Indian Evidence Act. Atleast one of the attesting witnesses was required to be examined before court to establish the valid execution of the Will. It is consistently observed by the Honb'le Apex Court and OS No.25581/2015 34 the Hon'ble High Court of Karnataka, that even if the execution of the Will is admitted by the otherside, the Will requires to be proved in accordance with law as provided under the India Evidence Act.
34. In the case on hand, the defendants neither produced the original Will before court nor examined any one of the attesting witnesses to the Will. Only certified copy of the Will is placed on record at Ex.P5. Therefore the Will has not been established in accordance with law and as such the defendants failed to prove the valid execution of the Will executed by Smt. Danabhagyama.
35. Issue No.4 framed by this court is to the effect whether there was family arrangement between the parties and it is acted upon by the parties. The said fact is to be gathered from the conduct of the parties and on basis of oral and documentary evidence placed on record. There were several admissions in the cross-examination of PW1 regarding plaintiffs father and the father of defendant Nos.2 and 3 enjoying the properties independently during their lifetime. It is significant to note that the OS No.25581/2015 35 father of the plaintiffs R. V Shankar died in the year 2003 and he never questioned the division of the properties at any point of time. On the other hand, from the conduct of the plaintiffs, it could be seen that after the death of their father, through Umadevi got the katha transferred in her name. The plaintiffs submitted several documents before the BBMP authorities to get the katha transferred inrespect of property bearing Katha No.373/2 in their names. At no point of time, the plaintiffs raised their little finger regarding under alleged unequitable partition. It is the definite case of the defendant Nos.1 and 2 that, the partition or family arrangement was acted upon since 1998. The said fact is established by the conduct of the parties. The several documents placed on record by the defendant No.1 and 2 clearly establish that the three sons of Smt. Danabhagyam got the katha transferred in their respective names by producing documents before the BBMP authorities and they are in possession and enjoyment of their respective shares. Infact the PW1 in unequivocal terms admitted that, the defendant Nos.2 and 3 have let out their portion of the properties and collecting OS No.25581/2015 36 rents. Equally the plaintiffs are collecting rents inrespect of the properties which was allotted to their share. Nowhere in the pleadings, the plaintiffs pleaded that the partition of the year 1998 was unequitable partition. For the first time in the cross- examination of defence witness, a suggestion is made that there was unequitable partition. As stated supra, during his lifetime the father of the plaintiffs had no grievance in so far allotment of the shares to the parties, is concerned.
36. Now whether this court can set the clock back, after lapse of several years when the partition has been acted upon in terms of family arrangement. Infact the children of Late Karunakaran, who are defendant Nos.2 and 3 got partitioned their share of the properties in the year 2004 and they are enjoying their respective shares. Sufficient water has flown under the bridge, since 1998. Now all of a sudden, the plaintiffs woke up and filed the above suit seeking partition of the properties by suppressing material fact that they are also enjoying a portion of the suit schedule property even from the lifetime of OS No.25581/2015 37 their father. The sons of Dhanabhagyam never questioned the family arrangement during their lifetime.
37. The learned counsel for the defendants relied on, a ruling reported in (1976) 3 SCC 119 (Kale and Ors V/s Deputy Director of Consolidation and Ors), wherein the Honb'le Apex Court at Para No.9 observed thus:-
"9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise "Kerr on Fraud" at p. 364 makes the following pertinent observations regarding OS No.25581/2015 38 the nature of the family arrangement which may be extracted thus;
"The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honesty made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to that their rights actually are, or of the points On which their rights actually depend."
The object of the arrangement is to protect the family from long drawn litigation cr perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family."
38. In another ruling the Honb'le Apex Court, reported in 1968 (3) SCC 330 (Deo Chand and Ors V/s Shiv Rama and Ors), at Para No.11, observed thus:-
"11. It was stated that there is no receipt from Raghunathrao on the record but there can be none, because Raghunathrao would not be giving a receipt to himself. It may be that the partition was not quite equitable because OS No.25581/2015 39 Raghunathrao earned to himself considerably more lands than were given to the other branches; but if that was so, the partition would have been questioned long time ago as an inequitable partition either by Sadasheorao or by any of the other parties. That this was not done, shows that the parties were satisfied with what had taken place. Indeed the actings of the parties immediately after partition prove the case of the plaintiffs that they had accepted the partition and begun acting upon it."
39. The Honb'le Apex Court in another ruling reported in (1976) 1 SCC 214 (Ratnam Chettiar and Ors V/s S. M Kuppuswami Chettiar and Ors), at Para No.19 observed thus:-
"19. Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge:
(1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.
OS No.25581/2015 40 (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is bindig on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.
(3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.
(4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times. If it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.
40. Similar is the veiw of the Hon'ble High Court of Karnataka in a judgment dtd.09.09.2014 in OS No.25581/2015 41 RFA No.313/2008, which followed the judgment referred to above.
41. In so far as the conduct of the parties is concerned, the learned counsel for the defendant Nos.1 and 2 relied on ruling reported in (2007) 6 SCC 120 (Arunima Baruah V/s Union of India and Ors), wherein it is held at Para No.14 observed thus:-
"14. In Halsbury's Laws of England, Fourth Edition, Vol. 16, pages 874- 876, the law is stated in the following terms:
"1303. He who seeks equity must do equity. In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to OS No.25581/2015 42 judgment, the law must take its course; no terms can be imposed."
42. In the case hand also, as stated above, the father of the plaintiffs deceased R V Shankar had no grievance in so far as allotment of shares in the suit schedule properties is concerned during his lifetime. Even thereafter also the plaintiffs mother was enjoying the fruits of the property allotted to the share of her husband and infact collecting rents from share of her property. After her death, the plaintiffs are collecting rents since 2012 and have come up in the above suit in the year 2015, for obvious reasons.
43. In another ruling reported in (2008) 14 SCC 2421, (M/s S.J.S Business Enterprises (P) Ltd., V/s State of Bihar and Ors), the Honb'le Apex Court, while considering the conduct of the litigant in suppression of the material fact, at Para No.13 observed thus:-
"As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the OS No.25581/2015 43 suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court may have taken."
44. In the case on hand also nowhere the plaintiffs in their pleadings wishpered regarding their possession over a partition of suit schedule property and collecting rents during the lifetime of their father. Equally the plaintiffs did not wisher regarding the allotment of unequitable partition of the properties. For the first time during the course of trial a suggestion was made to the DW3 regarding unequitable partition. However only in the cross- examination of PW1, the witness went on admitting several facts regarding previous partition and the parties acting upon the same. Therefore without any hesitation, it could be held that the plaintiffs have not approached this court with clean hands.
45. The learned counsel for the plaintiffs also relied on three rulings. In the ruling reported in AIR 1980 SC 1173 ( Kalyani (Dead) by Lrs V/s OS No.25581/2015 44 Narayanan and Ors), the Honb'le Apex Court observed thus:-
"A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject- matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv 41 I. A. 151. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense."
46. The said ruling is infact more helpful to the case of the defendant Nos.1 and 2 rather than the case of the plaintiffs. In the case hand, on consideration of conduct of the plaintiffs herein and admissions of PW1 regarding their enjoyment of their portions of the properties individually, it could be said without any hesitation, that there was severance in status between the parties long back. Infact there was defacto actual division of the subject matter in the year 1998 itself.
OS No.25581/2015 45
47. In another ruling reported in AIR 2014 SC 1304 (Prathima Chowdhury V/s Kalpana Mukherjee and Ors), the Honb'le Apex Court at Para No.27, considered Sec.115 of the Indian Evidence Act regarding estoppel. I have gone through the principle laid down in the said ruling and I am in respectful agreement with the same. The plaintiffs failed to establish as to how the principle laid down in the said ruling is applicable to the case on hand, particularly having regard to the admissions given by PW1 in his marathon cross-examination regarding the allotment of property and enjoyment of their respective shares individually.
48. The last ruling reported in 2013 (5) KCCR 4461 DB by the Hon'ble High Court of Karnataka, which is also on the aspect of estoppel. I am in respectful agreement with the principle laid down in the said ruling. Here again the learned counsel for the plaintiffs failed to establish as to how the principle laid down by the Honb'le Apex Court, is applicable to the facts of this case. On the other hand, the admissions of PW1 in the cross-
OS No.25581/2015 46 examination would suffice to know the acquiescence, of the plaintiffs regarding partition of the properties in the year 1998, during lifetime of their father.
49. Thus looking from any angle, though the Will has not been proved in accordance with law, the defendant Nos.1 and 2 have been able to establish family arrangement in the year 1998 and parties enjoying their respective shares individually without interference by the others. Therefore all these years no one has questioned the family arrangement, infact they are receiving rents inrespect including their shares. Under the above circumstances, Issue No.2 is answered in the Negative and Issue No.4 is answered in the Affirmative.
50. Issue No.3:-
The contention of the defendant No.1 is that, the mother of the defendant No.4 predeceased R Vasudevan in the year 1973 prior to purchase of the suit schedule property and as such the defendant No.4 has no right to claim any share in the property. It is also the contention of the defendant that, the mother of the defendant No.4 ousted from the joint OS No.25581/2015 47 family after her marriage and the defendant No.4 had the knowledge of execution of the Will infavour of defendant Nos.1 and 2 and therefore defendant No.4 cannot claim share in the suit schedule property.
51. The arguments of the learned counsel for the defendants is on the aforesaid lines and relied on couple of rulings reported in (2008) 14 SCC 445 and ILR 2009 KAR 1524.
52. Percontra, the learned counsel for the plaintiffs contended that, there was no reason to exclude the plaintiffs from the Will and his mother had no absolute right to execute the Will and as such the defendant No.4 is also entitled for 1/4th share in the suit schedule property.
53. Inorder to appreciate the contention of the defendants, it is necessary to refer the evidence of DW2, who is the defendant No.4 in the above suit. In his examination in chief the defendant No.4 contended that, R Vasudevan died on 19.06.1980 and his wife Dhanbhagyam died on 16.02.1998 and OS No.25581/2015 48 the mother of the defendant No.4 died on 23.02.1973. According to defendant No.4, the Will executed by his grandmother is invalid. His mother was entitled for a share in the suit schedule property.
54. In the cross-examination of this witness by the defendant Nos.1 and 2, the evidence of this witness was impeached. In the cross-examination the witness categorically admitted that he is one of the witnesses to the Will executed by his grandmother at Ex.P5. The fact admitted by the witness is that, his grandmother has written the Will in the presence of her three sons and divided the property as mentioned in the Will with the consent of her children and the witness was also present at that time. Admittedly this witness has not raised any dispute for not allotting any share to him under the Will at Ex.P5. The said admissions could be found at last para Page No.7 and first para of Page No.8. Similarly at the last para of Page No.8 of his cross-examination, the witness deposed regarding possession of the respective properties by the respective shareholders and their getting katha transferred in their names OS No.25581/2015 49 and enjoyment of their respective properties by constructing residential houses. At Page No.9 of the cross-examination, the witness in unmistakable terms admitted that, his uncles have acted upon the Will as per the recitals of the Will and infact this witness admittedly resided in the suit schedule property, till 1999, after execution of the Will in the year 1997.
55. From the evidence of this witness, it could be gathered that, the defendant No.4 was aware of the execution of the Will and his maternal uncles acting upon the said Will. Therefore the defendant No.4 did not raise his little finger all these years. From the admissions of this witness, it could be seen that, the mother of the defendant No.4 was excluded from the joint family after her marriage and she was never in joint possession of the suit schedule property at any point of time with the defendants. The witness does not know the date of his mothers marriage. Admittedly after the marriage his mother was residing at Chennai. The mother of the defendant No.4 never sought partition of the properties at any point of time.
OS No.25581/2015 50
56. In the ruling referred to by the learned counsel for the defendants reported in ILR 2009 Kar 1524 (Shanthappa and Ors V/s Channabasavaiah and Ors), the Hon'ble High Court while considering the Art.110 of Limitation Act, was pleased observe as follows:-
Suit by a person excluded from a joint family property to enforce a right to share therein. Suit filed by the plaintiff after lapse of 12 ears. Held, Article 110 of Limitation Act provides for a period of limitation of 12 years for a person excluded from a joint family property to enforce a right to share therein, and the said period begins to run from the date of knowledge of plaintiff of such exclusion. Thus, in the instant case, no suit came to be filed by Chanabasavaiah or the deceased original plaintiff within the said period of 12 years, the courts below were right in holding that the suit of plaintiff is barred by limitation."
57. Similarly in the other ruling reported in (2008) 14 SCC 445 (Noharlal Verma V/s District Cooperative Central Bank Limited, Jagdalpur), the Hon'ble Apex Court at Para No.32 observed thus:-
"32. Now, limitation goes to the root of the matter. If a sit, appeal or application OS No.25581/2015 51 is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits."
58. In the case on hand, as stated above, the defendant No.4 being one of the attesting witnesses to the Will of the year 1997 slept over the alleged right of his mother in the property and admittedly the family arrangement was acted upon by the parties and therefore the claim of the defendant No.4 is barred by limitation. Under the above circumstances, Issue No.3 is answered in the Affirmative.
59. Issue No.5 It is the contention of the defendants that, the plaintiff failed to incorporate all the properties in the above suit and therefore the suit is bad for partial partition. In the cross-examination of PW1 at Page No.8, Para No.2, he has stated that, he is residing in the property at Shivananda Nagar, New Thippasandra Post, Bengaluru and according to PW1, it is purchased by Mahadevaswamy the plaintiff No.2 herein. When it is the case of plaintiffs that, there is OS No.25581/2015 52 no partition of the properties and they are in joint possession and enjoyment of the suit schedule properties, the plaintiffs ought to have incorporated all the joint family properties in a suit for partition. Admittedly the property in which the plaintiffs are residing is not included in the above suit. Similarly at Page No.11, Para No.2, the witness admitted that, the property situated at No.2047, MIG, 3 rd Stage, Newtown Yelahanka is also the property of his father. There is a suggestion to the witness that, his grandmother and father of the defendant No.2 by name Karunakarana had contributed to his father to purchase the said building. However the PW1 has not denied the suggestion but only pleaded ignorance. The said property is also not included in the above suit for partition. One more site bearing No.3932 is also existing at Kumaraswamy Layout, 2nd Stage, Bengaluru and according to plaintiffs it is standing in the name of his mother, which was allotted by BDA authorities. Whether it was independently acquired by his mother or otherwise has not been stated in the pleadings. The said property is also not included in the above suit.
OS No.25581/2015 53 Therefore, as rightly contended by the defendants the suit of the plaintiffs is bad for partial partition. Accordingly, Issue No.5 is answered in the Affirmative.
60. Issue No.6:-
The plaintiffs have claimed 1/4th share collectively in the suit schedule property. While considering Issue Nos.2 and 4, this court has already observed that, there was a family arrangement between the sons of Dhanbhagyam and the same was acted up by the all the legal heirs of R Vasudevan and Dhanabhgyam. Therefore the question of partitioning the property again does not arise. Infact admittedly the plaintiffs are enjoying their share of the property from the date of family settlement by getting the katha transferred intheir respective names. Therefore the plaintiffs are not entitled for the relief of partition, as claimed in the above suit. Accordingly, Issue No.6 is answered in the Negative.
OS No.25581/2015 54
61. Issue No.7:-
The plaintiffs have sought for mense profits from the date of filing of the suit, till its realization. However nowhere in the pleadings the plaintiffs have stated as to what is the mense profits available from the suit schedule property and who is enjoying the properties from the suit schedule property. Infact no material worth its names is produced by the plaintiff to establish the availability of any mense profits from the suit schedule properties. On the other hand, the defendants and the plaintiffs are in possession and enjoyment of their respective shares and therefore the question of awarding mense profits in the above suit does not arise. Hence, Issue No.7 is answered in the Negative.
62. Issue No.8:-
In view of findings on the above Issues, the suit of the plaintiffs deserves to be dismissed. Accordingly, I proceed to pass the following:
OS No.25581/2015 55 ORDER The Suit of the Plaintiff is hereby dismissed.
Keeping inview the relationship of the parties, there is no order as to costs.
Draw decree accordingly.
----
(Dictation given to the Stenographer, transcribed by her, after correction, signed and pronounced by me in the open court on this the 9th day of February, 2023) Digitally signed by P G P G CHALUVA CHALUVA MURTHY MURTHY Date: 2023.02.20 15:47:48 +0530 [P. G Chaluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) Schedule Property All that piece and parcel of immovable property bearing No.373, formed by the Bangalore nd Development Authority in HAL 2 Stage, Indiranagar, Bangalore- 560 008, measuring east to west 90 feet and north to south 60 feet, totally measuring 5400 Sq.ft., with building constructed therein and bounded on the;
East by: Site No.398, 399, West by: Road, North by: Site No.372, South by: Site No.374, PG Digitally signed by P G CHALUVA MURTHY CHALUVA Date: 2023.02.20 MURTHY 15:48:04 +0530 [P. G Chaluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) OS No.25581/2015 56 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: S. Sachidanandaswamy.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF: Ex.P1 & 2: Death certificates. Ex.P3 & 3(A): Xerox copy of the death certificate and translated copy.
Ex.P4: Certified copy of the sale deed dtd.20.01.1979.
Ex.P5: Certified copy of the registered Will. Ex.P6, 6(A) to 6(H): Office copy of the notice dtd.25.11.2014 with 4 postal receipts and three postal acknowledgment and one returned postal envelope.
Ex.P7: Katha extract.
Ex.P8: Tax paid receipt for the year 2018-19. Ex.P9 to 14: 4 positive photographs, with CD and Certificate U/Sec.65-B of Evidence Act.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT: DW1: Mr. V. Devanesan.
DW2: D. Sundarrajan.
DW3: K. Udaya Kumar.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D1 to 3: Color photo print. Ex.D4: Copy of the application. Ex.D4(A) to (L): Witness signatures. Ex.D5: Copy of joint affidavit dtd.28.02.2005. Ex.D5(A) & (B): Signatures. Ex.D6: Proceedings sheet.
Ex.D7 & 8: Proceedings of katha transfers.
OS No.25581/2015 57 Ex.D9: Certified copy of the registered partition deed dtd.07.02.2004.
Ex.D10 to 17: 4 katha certificates & 4 katha extracts.Digitally signed by
PG P G CHALUVA
CHALUVA MURTHY
Date: 2023.02.20
MURTHY 15:48:13 +0530
[P. G Chaluva Murthy]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73)