Bangalore District Court
In O.S.742/2009 vs In O.S.742/2009 on 1 September, 2018
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri.G.A.Mulimani, M.A., LL.B. (Spl.)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 1st day of September, 2018
O.S.742/2009 C/w O.S.No.6616/2011
Plaintiff/s in O.S.742/2009:
1. Sri.Prasad,
S/o Sri.R.Nagendra,
Aged about 18 years,
2. Sri.Pramod,
S/o Sri.R.Nagendra,
Aged about 18 years,
Both are residing at No.99,
2nd floor, III Cross,
K.S.R.T.C. Layout,
II Phase, J.P.Nagar,
Bangalore-78
(By Sri.H.N.Prakash, Advocate)
Vs
Defendant/s in O.S.742/2009:
1. Smt.A.Sharavathy,
W/o Late Sri.H.S.Krishna Murthy,
2 O.S.No.742/2009
C /w O.S.6616/2011
Aged about 70 years,
R/at No.99,
Ground Floor, III Cross,
K.S.R.T.C. Layout,
II phase, J.P.Nagar,
Bangalore-78
Since dead, represented by LRs,
2. Smt.K.Usha,
W/o Venkatesh,
Aged about 51 years,
R/at No.1138,
26th B- main Road,
9th Block,
Jayanagar,
Bangalore-69.
3. Smt.Jyothi,
W/o Srinath,
Aged about 49 years,
R/at No.310,
Vth Block, Sky Line City,
Chandra Layout,
Nagarbhavi,
Bangalore-72
4. Sri.B.Venkatesh,
Father's name not known,
Aged about 55 years,
R/at No.1138,
26th B-Main Road,
9th Block, Jayanagar,
Bangalore-69.
(By Sri.BGS., Advocate.for D2 to 4
Def.No.1 -deleted)
3 O.S.No.742/2009
C /w O.S.6616/2011
Plaintiff/s in O.S.6616/2011:
Mrs.K.Usha,
Aged about 53 years,
W/o Mr.Venkatesh,
R/at No.1138,
26th 'B' Main Road,
9th Block, Jayanagar,
Bangalore-560 069
(By Sri.B.G.Sriram, Advocate)
V/s
Defendant/s in O.S.6616/2011:
1. Mr.Prasad,
2. Mr.Pramod,
Both aged about 18 years,
Both sons of Mr.R.Nagendra,
3. Mr.R.Nagendra,
Aged about 52 years
S/o Late A.Raja Rao,
All residing at No.99, II floor,
KSRTC Layout, II Phase,
J.P.Nagar,
Bangalore-560 078.
(By Sri.K.S.,Advocate)
Date of institution 1. O.S.742/2009 - 28.01.2009
of the suits: 2. O.S.6616/2011 - 12.09.2011
4 O.S.No.742/2009
C /w O.S.6616/2011
Nature of the suit : 1. O.S.742/2009
[suit on pronote, suit Partition & S.possession and for
for declaration and P.Injunction.
possession, suit 2. O.S.6616/2011
for injunction] : Declaration & Mandatory Injun
Date of the commencement 5.07.2013
of recording of the evidence:
Date on which the
Judgment was pronounced : 01.09.2018
Year/s Month/s Day/s
Total Duration : 1. O.S.742/2009 :- 09 07 03
2. O.S.6616/2011:- 06 11 19
COMMON JUDGMENT
Both suits were clubbed together as per order
dt. 17.09.2015 in O.S.No.742/2009. Subsequent to
17.09.2015 parties in both suits have lead common
evidence.
2. The suit bearing O.S.742/2009 is filed by the
plaintiffs against the defendants for the relief of partition
and separate possession of plaintiffs 1/3rd share in the 'A'
schedule property and for permanent injunction restraining
the defendants, their agents, their henchmen or any person
claiming through or under them from interfering with the
peaceful possession and enjoyment of the plaintiffs 'B'
5 O.S.No.742/2009
C /w O.S.6616/2011
schedule property and other reliefs and with mesne profits,
costs in the interest of justice and equity.
3. The suit bearing O.S.No.6616/2011 is filed by the
plaintiff against the defendants for the relief of declaration,
declaring that she is the absolute and exclusive owner of
the schedule property, direct the defendant to quite and
deliver the vacant possession of the suit schedule property
and other reliefs.
4. The brief facts of the plaintiffs' case in
O.S.No.742/2009 are that.
The plaintiff No.2 and 3 are sons of plaintiff No.1, the
defendant No.2 and 3 are daughters of 1st defendant , the
husband of the first defendant and father of defendant No.2
and 3 are no more, Kala and Srinath are sons of
Krishnamurthy and first defendant, Kala expired in the year
2000 leaving behind her husband Nagendra and 2 sons i.e.
plaintiff in this suit as Lrs, Srinath expired in 1999, he was
not married, the defendant No.4 is the first son in law of
late H.S.Krishnamurthy, who was an employee of the
KSRTC who retired as A.T.S. in 1984, he was a member of
the KSRTC Employees co-op.Housing society, who allotted
site bearing No.275 from the society, then he sold the site
to Dr.Venkatesh in 1983, out of the sale consideration he
6 O.S.No.742/2009
C /w O.S.6616/2011
purchased the site bearing No.99 in the said layout and he
is in possession and enjoyment of the property and his
name is entered in the revenue records, later he
constructed a ground floor residential unit on the site out of
his funds in the year 1984, in the year 2002 first floor was
built and the Krishnamurthy was provided the funds, hence
the said property is a joint family property, the son of
H.S.Krishnamurthy, Sri.K.Srinath met with an accident and
succumbed to death, the compensation amount received by
H.S.Krishnamurty and same was utilized for construction of
first floor, H.S.Krishnamurthy and first defendant opinioned
that all his three daughters should have equal share in the
property No.99, J.P.Nagar, Bangalore, however no
documentation was done at that time, after expiry of
Smt.Kala, the first plaintiff was residing at No.6/2, Triveni
cross, Kadirenahally Main Road, Bangalore, along with other
plaintiffs, at that time Krishnamurhty and first defendant
decide that their grandsons plaintiff No.2 and 3 should not
cause to hardship, because of loss of their mother, they
expressed their love and affection to the grand children and
they suggested that the plaintiff could construct a
residential unit in property No.99, 3rd cross, KSRTC layout ,
J.P. Nagar, Bangalore, and resides there, so that the
plaintiffs 2 and 3 could be near to them, heeding to their
wishes the first plaintiff constructed residential unit
consisting of 2 rooms, a hall, kitchen and bath room, totally
7 O.S.No.742/2009
C /w O.S.6616/2011
measuring 5.3 squares in the year 2005, this residential
unit consist the 2nd floor of property No.99, 3rd cross,
KSRTC Layout 2nd phase , J.P.Nagar, Bangalore, ever since
the construction of the 2nd floor the plaintiffs are residing in
the said portion. The entire property bearing No.99, of J.P.
Nagar, Bangalore is described as schedule 'A ' property and
2nd floor portion is described as schedule 'B' schedule
property.
5. According to the plaintiffs they have invested huge
amount for construction of the 2nd floor structure on the
advise and representation of the first defendant and her
husband, the first plaintiff disposed off site No.32 situated
at KSRTC Employees Co.Operative Housing Society Ltd., in
Sy.No.61/2 and Sy.No.61/3 Chikkakalsandra which was
owned by him and putting up plaint 'B' schedule property,
therefore the plaintiffs pleaded their inability to vacate the
'B' schedule property which is in their occupation. However
when the pressure of the defendants persisted having
regard to the attitude of the defendants, the plaintiffs
sought for partition and the separate possession of their
share in the schedule property as which they have inherited
from Smt.Kala. As a counterblast of this and to deprive the
legitimate share of the plaintiffs over the property first
defendant got issued notice setting up a tenancy and called
upon the plaintiff No.1 to vacate the premises, the said
8 O.S.No.742/2009
C /w O.S.6616/2011
notice has been suitably replied by the plaintiffs, now all the
defendants have joined and are attempting to dispossess
the plaintiffs by unlawful means, one such attempt was
made by the defendants in the last week of December
2008, however the illegal attempt of the defendants was
foiled by the first plaintiff with the help of supporters and
well wishers, the defendants have plan to evict the plaintiff
from 'B' schedule property forcibly, hence have filed this
suit.
6. In pursuance of the suit summons defendants No. 1
to 4 appeared through their counsel, and the defendant
No.1 filed written statement, the other defendants have
filed the memo to adopt the written statement, thereafter
as per order dt.23.2.2012 defendant No.1 is ordered to be
deleted, however in written statement the defendant No.1
has contended that, she has denied all the contents leveled
against her as false and further contended that, the plaintiff
has not produced any documents to show that selling the
property and hold the property by her husband. The
plaintiffs taking undue advantage of her helpless situation
as she is a widow, other plaintiffs are minors. She was
working as a school teacher and had independent source of
income to acquire the schedule property, the property
originally belonged to the KSRTC Employees co-operative
Housing Society Limited, it has sold in favour of its member
9 O.S.No.742/2009
C /w O.S.6616/2011
Sri.G.H.Gangadhar through registered Sale Deed
dt.12.9.1983, who has sold the schedule property in favour
of the first defendant under sale deed dt.20.12.1984, after
acquiring the suit schedule property, she requested for
transfer of katha in her name and also issued a khata
certificate to the said effect on 10.1.1995, in order to put
up construction over the suit schedule property he has
taken estimate from qualified Engineer, and also sought the
financial assistance from Bharath Housing Co.Op.Society
Ltd., she has made necessary loan application to the bank,
she also sworn to an affidavit to that effect and she has
repaid the entire loan by way of monthly installment to the
said bank, the said bank has executed document before
Sub Registrar with regard to discharge of loan on 4.10.95
and issued discharge certificate dt.11.10.1985, and for
execution of discharge deed bank has addressed a letter to
Sub Register authorizing to execute the document before
the Sub Registrar in favour of 1st defendant on behalf of the
bank, the bank also issued a letter with regard to the
discharge of mortgage.
7. Further has stated that her husband owned a site
bearing No.275 which was sold by her husband
H.S.Krishnamurthy in order to perform the marriages of 3
daughters, as such what he got by way of sale
consideration is part sufficient to perform the marriage of
10 O.S.No.742/2009
C /w O.S.6616/2011
one of his daughter, said Krishnamurthy was compelled to
make use of the retirement benefit and also to perform the
marriage of his daughters, who working in KSRTC, after
his retirement there is no provision for payment of monthly
pension to him, as such H.S.Krishnamurthy was also
financially depending upon his wife namely the first
defendant. H.S.Krihnamurthy did not contributed any
money for 1st for acquiring site or for putting up
construction over the schedule property as alleged by the
plaintiff, and it is the first defendant was acquired the
schedule property by her herself and has put construction
much before her husband was sold his property, the theory
put forth by the plaintiffs that the 1st defendant's husband
has acquired the schedule property in favour of his wife is
not correct, the first defendant neither authorized nor
permitted the first plaintiff to put any construction namely
'B' schedule property as averred in memorandum of plaint.
8. Further has stated that, it will not be out of place
to mentioned here that no gentlemen will sell his property
and put up construction on some others property without
there being any document to the said effect. The 1st plaintiff
is none other than her 3rd son in law and unfortunately she
last her daughter Smt.Kala, thereafter first plaintiff was
remarried, he has also got one child out of the 2nd wife, and
he started betraying the plaintiffs 2 and 3 who were born
11 O.S.No.742/2009
C /w O.S.6616/2011
from his first wife Kala, it is at that stage the plaintiff No.2
and 3 have developed lot of attachment with their
grandmother i.e. 1st defendant, since the first plaintiff
pleaded financial problems and he could not locate a
suitable premises near the schedule property, it is at that
stage the 1st plaintiff occupied leased premises i.e. 'B'
schedule property along with his 2nd wife and plaintiff No. 2
and 3, it will not be out of place to mention here that on
the date of leasing the premises to the 1st plaintiff, the
reasonable rent that would have fetched to her if it was
leased to any other 3rd person was a minimum sum of
Rs.4,500/- and today it fetches a monthly rent of
Rs.8,000/- on the other hand the 1st plaintiff was paying
only Rs.3000/- till November 2008, after issuance of legal
notice to the 1st plaintiff he has stopped paying the monthly
rent to her and filed this suit as a counter blast to silence
her and also create unhealthy atmosphere in the family
members, she has no personal knowledge, that first plaintiff
sold site No.32 and reason for such sale, the 2nd floor was
constructed by the 1st defendant and it was not
constructed by 1st plaintiff as alleged by first plaintiff,
similarly the defendant is not permitted the 1st plaintiff to
put up any construction in the 'B' schedule property as
indicated by him in the memorandum of plaint, even today
it is the first defendant is maintaining the 'B schedule
property and paying the tax as and when it falls due, suit
12 O.S.No.742/2009
C /w O.S.6616/2011
schedule property is the exclusive property of first
defendant, the plaintiff is jealous about her first son in law
and unnecessary is trying to create bad image against him
due to her old age she is not in a position to move out from
the house freely, and the plaintiffs have not acquired any
semblance of right, title and interest over the suit schedule
property, the first plaintiff is residing along with his family
members in the leased schedule 'B' property as a tenant
and not as co-owners as alleged by them. Hence prayed
for dismiss the suit.
9. On the other hand the learned counsel for the
plaintiff filed rejoinder to the amended written statement,
inter alia contending that, the will alleged to have been
executed fraudulently obtained by the defendant No.2 and
3, the suit schedule property is not the self acquired
property of the 1st defendant, but was acquired by the
grandfather of plaintiff No.2 and 3 Sri.Krishnamurthy, as
such the 1st defendant could not have bequeathed the
property in favour of defendant No.2 and 3. However the
execution of will by the first defendant is not admitted and
is disputed by the plaintiff. The first defendant would not
have bequeathed the entire property only in favour of
defendant No.2 and 3, as the plaintiff No.2 and 3 are the
children of first daughter of defendant who predecessor the
first defendant. The defendant had no right, title and
13 O.S.No.742/2009
C /w O.S.6616/2011
interest over the 2nd floor of schedule 'B' property was
constructed by first plaintiff for the benefit of first daughter
of first defendant and her children without any help or
assistance from the 1st defendant or her late husband, as
such the will said to have been executed by the first
defendant as no legal sanctity and therefore is not legally
enforceable it will take away the right and interest of
plaintiff in the suit schedule property as admitted by the
defendant in the suit O.S.6616/2011 filed by the 2nd
defendant for the relief of declaration and possession is
pending for adjudication in respect of the schedule
property, hence he prayed for reject the claim the
defendant No.2 and 3.
10. The brief facts of the plaintiff's case in
O.S.No.6616/2011 are that:-
The immoveable property bearing No.99 situated at
3rd cross KSRTC layout, which was acquired, owned,
possessed and enjoyed by Smt.A.Sharavathi w/o late
Sri.H.S.Krishnamurthy, who is none other than the mother
of the plaintiff and grandmother of the defendant No.1 and
2, originally it was vacant land, which was allotted in favour
of G.H.Gangadhara S/o H.Gangappa by the K.S.R.T.C.
Employees Co.Operative Housing Society Limited, (for the
sake of convenience it is referred as Society), thereafter the
14 O.S.No.742/2009
C /w O.S.6616/2011
society executed the sale deed in favour of G.H.Gangadhara
through regd.sale deed dt.12.9.1983, thus conveying
absolute, right and interest, and his name is entered in the
concerned revenue records and has paid up to date tax.
thereafter G.H.Gangadhara sold the said property in favour
of A.Sharavathi through registered Sale deed
dt.20-12-1984, thereafter katha stands in her name and
she has paid up to date tax and she applied and obtained
license and plan from the competent authority and availed
loan of Rs.6,00,000/-from Bharath Housing Cooperative
society by mortgaging the property, and as she is a
Teacher, hence she availed a sum of Rs.39,000/- from the
Karnataka State Housing Maha Mandali and put up a
construction residential house comprising of a ground, first
and 2nd floor, thereafter she has discharged the loan.
11. Further it is the case of the plaintiff that, one of
the daughter of Smt.Kala is none other than the mother of
the defendants had an ultimately death on 10.6.2000, at
that time the defendants were very young and their father
Mr.R.Nagedra husband of the deceased Smt.Kala,
approached the A.Saravathi, and requested her to occupy
the 2nd floor of the premises, taking into consideration of
the tender age of the defendants permitted the R.Nagendra
to occupy the 2nd floor premises as a tenant on a monthly
rent of Rs.3000/-, since Mr.Nagendra was none other than
15 O.S.No.742/2009
C /w O.S.6616/2011
her son in law, taking him into confidence, the said
Smt.A.Sharavathi did not prefer any document in this
regard, the said portion occupied by the defendant is
referred as schedule property. The said Sharavathi was
advancing in age and she required a constant care taker,
for which one of the daughter were ready, she requested to
quit and deliver the vacant possession of the schedule
property, but the defendant did not to do so, and she got
issued legal notice dt.19.1.2009 demanding vacant
possession of the schedule property, infact the defendant
denied the relationship of landlord and tenant, thereafter
the said Sharavathi preferred a HRC petition before the
Small Cause Court in HRC No.122/2009 for eviction of the
tenant, the said R.Nagendra filed application under Sec.43
of H.R.C. Act, disputing the relationship of landlord and
tenant, the said petition came to be dismissed,
12. Further it is the case of the plaintiff is that,
doubting on R.Nagendra, A.Sharavathi executed her last
regd. Will and testament, concerning the said referred
property on 17.12.2008, and the said R.Nagendra filed
partition suit through the defendants representing the
minor defendants as father and natural guardian against
Smt.A.Sharavathi in O.S.No.742/2009 the same is pending
before CCH-39, the defendants having attend the age of the
majority have come on record in the said suit, during the
16 O.S.No.742/2009
C /w O.S.6616/2011
pendency of the said suit, Sharavathi died testate, under
the last will she bequeathed the ground floor and the 2nd
floor portion of the aforesaid property in favour of her elder
daughter Smt.Usha i.e. the defendant and first floor portion
in favour of her 2nd daughter Jyothi, after the death of
A.Sharavathi they become the absolute beneficiaries with
regard to portion bequeathed in their favour have acquired
the title accordingly, as per the ground floor portion and
first floor portion bequeathed in terms of the Will as
referred above, there is no problem, as per the 2nd floor
portion of the aforesaid property which is in occupation of
A.Nagendra and his sons i.e. defendants, hence it has
become necessary for the plaintiff to file the suit for
declaration and possession of the same. Hence, prayed for
decree the suit.
13. On the other hand defendants 1 to 3 have
appeared through their counsel and filed their written
statement inter-alia contending that they have denied all
the allegations leveled against them as false and further
contended that, the defendant No.1 to 3 are the father and
children, the plaintiff is the daughter of one Sharavathi and
late H.S.Krishnamurthy, Krishnamurthy expired in the year
2006, Krishnamuhty and Sharavathi had one more
daughter by name Smt.Kala and son by name Srinath, the
Kala expired in the year 2000 leaving behind her husband
17 O.S.No.742/2009
C /w O.S.6616/2011
Sri.Nagendra who is the third defendant, the defendant
No.1 and 2 are his sons, H.S.Krishnamurthy was an
employee of K.S.R.T.C. he retired as A.T.S. in the year
1984, he was a member of K.S.R.T.C. Employees Housing
Society, who was allotted site No.275 in the layout formed
by the Society, since the site was big site and he sold the
said site to Dr.Venkatesh in the year 1983, out of the sale
consideration he purchased site No.99 in the same layout in
the name of his wife Smt.Sharavathi, but the entire sale
consideration of the site was paid by her husband, he
retired in the year 1984 and after his retirement benefits he
constructed a ground floor residential unit on the site out of
his fund in the year 1984 , in the year 2002 first floor was
built on his own fund, thus the said property is a joint
family property. The son of H.S.Krishnamurhty, K.Srinath
met with an accident near Puna and succumbed to death,
the compensation amount received by H.S.Krishnamruthy
also utilized for construction of first floor.
14. Further it is the case of the defendant is that,
3rddefendant married Smt. Kala D/o H.S.Krishnamurthy in
the year 1991, in the wedlock the defendant No.1 and 2 are
born to the defendant No.3 and Smt.Kala, unfortunately
Kala also expired in the year 2000 leaving behind the
defendants as her only legal heirs, when the defendant
No.1 and 2 were 7 years when they lost their mother, after
18 O.S.No.742/2009
C /w O.S.6616/2011
expiry of their own son Srinath Sri.H.S.Krishnamruhy and
his wife Smt.Sharavathi opinioned all their 3 daughters
should have equal share in the property No.99, 3rd cross
KSRTC Layout, J.P.Nagar, Bangalore, however after expiry
of Smt.Kala, the 3rd defendant was residing at No.6/2,
Triveni Cross, Kadirenahally main road, Bangalore along
with his children, at that time Sri.H.S.Krishnamurthy and
his wife decide that their grandsons namely defendant No.1
and 2 should not be put to hardship because of loss of their
mother they expressed their love and affection to their
grand children and they suggested that the 3rd defendant
could construct a residential unit in property No.99, 3rd
cross, K.S.R.T.C. layout, 2nd stage, J.P.Nagar, Bangalore,
and reside there, so the defendant No.1 and 2 could be
near to them, heeding to their wishes the 3rd defendant
constructed the 2nd floor unit consisting of 2 rooms , a hall ,
kitchen and bathroom totally measuring 5.3 squares in the
year 2005 which is suit schedule property, this residential
unit constitute of 2nd floor of property No.99, 3rd cross,
KSRTC layout , JP Nagar , Bengaluru, which is the suit
schedule property. Ever since the construction of 2nd floor
the defendants are residing in the 2nd floor portion.
15. According to the defendants H.S.Krishnamurthy
expired on 10.3.2007, thereafter defendants have
succeeded to the schedule property as co-owners, late
19 O.S.No.742/2009
C /w O.S.6616/2011
Sharavathi heeding to the ill advise of one V.Venkatesh who
is none other than the husband of the plaintiff and certain
other persons have changed her mind and started insisting
the defendants to vacant the 2nd floor portion of their
occupation, the defendants have invested huge amount for
construction of 2nd floor structure on the advise and
representation of the H.S.Krishnamurthy and Sharavathi,
the 3rd defendant disposed off site bearing No.32, situated
at KSRTC Employees Co-operative Housing society housing
Ltd., in Sy.No.61/2 and 61/3 Chikkakalasandra, Uttarahally
hobli, Bangalore South Tq, which was owned by him and
invested the amount for putting up construction over the
suit schedule property, hence the defendants sought for
partition and separate possession of the share in the suit
property as they are inherited from Smt.Kala. As a
counterblast Sharavathi got issued notice setting up a
tenancy, hence defendants have filed O.S.No.742/2009
during the life time of Sharavathi who filed HRC No.122/09
which came to be dismissed as there is no landlord and
tenants relationship and the plaintiff have suppressed the
material facts, hence prayed for dismiss the suit.
16. On the basis of the above pleadings, materials and
documents, my learned predecessor in office has framed
the following issues:
20 O.S.No.742/2009
C /w O.S.6616/2011
Issues in O.S.No.742/2009
1. Whether plaintiffs prove that suit schedule "A"
property is self acquired property of late
Sri.H.S.Krishnamurthy?
2. Whether plaintiffs prove that it is plaintiff No.1
who had constructed 2nd floor of the building,
morefully described in schedule "B" of the plaint?
3. Whether plaintiffs prove that they are entitled to
1/3rd share in suit schedule "A" property?
4. Whether defendant No.1 proves that suit schedule
properties are her self acquired properties?
5. Whether Plaintiffs are entitled to the reliefs sought
for?
6. What Decree or Order?
Additional Issues
1. Whether the defendant No.2 proves that the
defendant No.1 has bequeathed the schedule
property in favour of defendant No.2 and 3
under a will dated 17.12.2008?
21 O.S.No.742/2009
C /w O.S.6616/2011
ISSUES IN O.S.6616/2011
1. Whether the plaintiff proves that she has invested
Rs.60,000/- and Rs.39,000/- for the construction
of residential house comprising of a ground floor,
1 Floor an II Floor in the suit schedule property?
(Issue No.1 is recasted)
Re-Casted Issue:
1. Whether the plaintiff prove that her mother
Smt.A.Sharavathi has invested Rs.60,000/- and
Rs.39,000/- for the construction of residential
house comprising of a ground floor, 1 floor and II
floor in the suit schedule property?
2. Whether the plaintiff further proves that her
mother Smt. A.Sharvathi had executed a Will in
favour of the plaintiff bequeathing the ground
floor and 2nd floor portions in the suit schedule
property?
3. Whether the 3rd defendant proves that the suit
schedule property was purchased by one
H.S.Krishnamurthy the father of plaintiff in the
year 1984 and his wife one late Smt.Kala is the
22 O.S.No.742/2009
C /w O.S.6616/2011
daughter of said Sri.H.S.Krishnamurhty and
Smt.A.Sharavathi?
4. Whether the 3rd defendant further proves that
with the permission of father of plaintiff, he
constructed 2nd floor residential unit consisting of
two rooms, a hall, kitchen and bathroom?
5. Whether the 3rd defendant proves that 1st & 2nd
defendants are the co-owners of the schedule
property?
6. Whether the plaintiff is entitled for the relief of
declaration?
7. Whether the plaintiff is entitled for the relief of
possession of the suit schedule property?
8. To what order or decree the parties are entitled
to?
17. In order to prove the case of the plaintiff in
O.S.No.742/2009 the minor guardian of the plaintiffs i.e.
plaintiff No.1 was examined as P.W.1 got documents
marked Ex.P1 to 7. Subsequently plaintiff No.2 and 3
become major, hence the plaintiff No.1 was discharged
from minor guardian, the plaintiff No.2 become plaintiff
No.1, who examined as P.W.2 and no documents got
marked as Exhibits and in order to prove the case of the
plaintiff in O.S.6616/2011 the plaintiff No.1 is examined as
23 O.S.No.742/2009
C /w O.S.6616/2011
P.W.1 got documents marked Ex.P1 to 14 and one attesting
witness is examined as P.W.2 and got documents marked
Ex.P15 (a) to (c). In the meanwhile both suits are clubbed,
hence another attesting witness is examined as P.W.3 and
scribe is examined as P.W.4 got marked Ex.P15 (d) (e) (f).
and the minor guardian of the defendants was examined as
P.W.5, and got documents marked as Ex.P16 and 17, again
after clubbing the matter he himself examined as D.W.1 on
behalf of defendant No.1 and 2 and no documents got
marked as exhibits, but during the cross examination of
P.W.1 has marked the documents Ex.D1 to 8 by way of
confrontation. The defendant No.3 in O.S.No.742/2009 is
examined as D.W.2 and no documents got marked as
exhibits and closed both side evidence and case is posted
for arguments.
18. Heard the arguments of both the parties in both
the suits.
19. My answers on the above issues are as follows :
Issues in O.S.742/2009
Issue No.1 : In the negative,
Issue No.2 : In the negative,
Issue No.3 : In the affirmative,
24 O.S.No.742/2009
C /w O.S.6616/2011
Issue No.4 : In the affirmative,
Issue No.5 : In the affirmative,
Issue No.6 : As per final order for the
following:
Additional.Issue No.1: In the negative,
Issues in O.S.6616/2011
Recast issue No.1: In the affirmative
Issue No.2 : In the negative,
Issue No.3 : Partly in affirmative,
Issue No.4 : In the negative,
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
REASONS
20. ISSUE No.1, 2 & 4 IN O.S.742/2009, ISSUE
No.3, 4 AND RECASTED ISSUE No.1 O.S.6616/2011:
These issues are inter-linked, hence, to avoid the repetition
of the same facts, I have discussed these issues
simultaneously for my common consideration.
25 O.S.No.742/2009
C /w O.S.6616/2011
21. It is the specific case of the plaintiffs in
O.S.No.742/2009 are that, the plaintiff No.2 and 3 are
sons of plaintiff No.1, the defendant No.2 and 3 are
daughters of 1st defendant, the husband of the first
defendant and father of defendant No.2 and 3 are no more,
Kala and Srinath are sons of Krishnamurthy and first
defendant, Kala expired in the year 2000 leaving behind her
husband Nagendra and 2 sons i.e. plaintiff in this suit as
Lrs, Srinath expired in 1999, he was not married, the
defendant No.4 is the first son in law of late
H.S.Krishnamurthy, who was an employee of the KSRTC
who retired as A.T.S. in 1984, he was a member of the
KSRTC Employees co-op.Housing society, who allotted site
bearing No.275 from the society, then he sold the site to
Dr.Venkatesh in 1983, out of the sale consideration he
purchased the site bearing No.99 in the said layout and he
is in possession and enjoyment of the property and his
name is entered in the revenue records, later he
constructed a ground floor residential unit on the site out of
his funds in the year 1984, in the year 2002 first floor was
built and the Krishnamurthy was provided the funds, hence
the said property is a joint family property, the son of
H.S.Krishnamurthy, Sri.K.Srinath met with an accident and
succumbed to death, the compensation amount received by
H.S.Krishnamurty and same was utilized for construction of
first floor, H.S.Krishnamurthy and first defendant opinioned
26 O.S.No.742/2009
C /w O.S.6616/2011
that all his three daughters should have equal share in the
property No.99, J.P.Nagar, Bangalore, however no
documentation was done at that time, after expiry of
Smt.Kala, the first plaintiff was residing at No.6/2, Triveni
cross, Kadirenahally Main Road, Bangalore, along with other
plaintiffs, at that time Krishnamurhty and first defendant
decide that their grandsons plaintiff No.2 and 3 should not
cause to hardship, because of loss of their mother, they
expressed their love and affection to the grand children and
they suggested that the plaintiff could construct a
residential unit in property No.99, 3rd cross, KSRTC layout ,
J.P. Nagar, Bangalore, and resides there, so that the
plaintiffs 2 and 3 could be near to them, heeding to their
wishes the first plaintiff constructed residential unit
consisting of 2 rooms, a hall, kitchen and bath room, totally
measuring 5.3 squares in the year 2005, this residential
unit consist the 2nd floor of property No.99, 3rd cross,
KSRTC Layout 2nd phase , J.P.Nagar, Bangalore, ever since
the construction of the 2nd floor the plaintiffs are residing in
the said portion. The entire property bearing No.99, of J.P.
Nagar, Bangalore is described as schedule 'A ' property and
2nd floor portion is described as schedule 'B' schedule
property.
22. Further it is the case of the plaintiffs is that, they
have invested huge amount for construction of the 2nd floor
27 O.S.No.742/2009
C /w O.S.6616/2011
structure on the advise and representation of the first
defendant and her husband, the first plaintiff disposed off
site No.32 situated at KSRTC Employees Co.Operative
Housing Society Ltd., in Sy.No.61/2 and Sy.No.61/3
Chikkakalsandra which was owned by him and putting up
plaint 'B' schedule property, therefore the plaintiffs pleaded
their inability to vacate the 'B' schedule property which is in
their occupation. However when the pressure of the
defendants persisted having regard to the attitude of the
defendants, the plaintiffs sought for partition and the
separate possession of their share in the schedule property
as which they have inherited from Smt.Kala. As a
counterblast of this and to deprive the legitimate share of
the plaintiffs over the property first defendant got issued
notice setting up a tenancy and called upon the plaintiff
No.1 to vacate the premises, the said notice has been
suitably replied by the plaintiffs, now all the defendants
have joined and are attempting to dispossess the plaintiffs
by unlawful means, one such attempt was made by the
defendants in the last week of December 2008, however
the illegal attempt of the defendants was foiled by the first
plaintiff with the help of supporters and well wishers, the
defendants have plan to evict the plaintiff from 'B' schedule
property forcibly.
28 O.S.No.742/2009
C /w O.S.6616/2011
23. It is the specific case of the defendant in
O.S.No.742/2009 is that, the plaintiff has not produced any
documents to show that selling the property and hold the
property by her husband. The plaintiffs taking undue
advantage of her helpless situation as she is a widow, other
plaintiffs are minors. She was working as a school teacher
and had independent source of income to acquire the
schedule property, the property originally belonged to the
KSRTC Employees co-operative Housing Society Limited, it
has sold in favour of its member Sri.G.H.Gangadhar
through registered Sale Deed dt.12.9.1983, who has sold
the schedule property in favour of the first defendant under
sale deed dt.20.12.1984, after acquiring the suit schedule
property, she requested for transfer of katha in her name
and also issued a khata certificate to the said effect on
10.1.1995, in order to put up construction over the suit
schedule property he has taken estimate from qualified
Engineer, and also sought the financial assistance from
Bharath Housing Co.Op.Society Ltd., she has made
necessary loan application to the bank, she also sworn to
an affidavit to that effect and she has repaid the entire loan
by way of monthly installment to the said bank, the said
bank has executed document before Sub Registrar with
regard to discharge of loan on 4.10.95 and issued discharge
certificate dt.11.10.1985, and for execution of discharge
deed bank has addressed a letter to Sub-Register
29 O.S.No.742/2009
C /w O.S.6616/2011
authorizing to execute the document before the Sub
Registrar in favour of 1st defendant on behalf of the bank,
the bank also issued a letter with regard to the discharge of
mortgage.
24. Further it is the case of the plaintiff is that, her
husband owned a site bearing No.275 which was sold by
her husband H.S.Krishnamurthy in order to perform the
marriages of 3 daughters, as such what he got by way of
sale consideration is part sufficient to perform the marriage
of one of his daughter, said Krishnamurthy was compelled
to make use of the retirement benefit and also to perform
the marriage of his daughters, who working in KSRTC,
after his retirement there is no provision for payment of
monthly pension to him, as such H.S.Krishnamurthy was
also financially depending upon his wife namely the first
defendant. H.S.Krihnamurthy did not contributed any
money for 1st for acquiring site or for putting up
construction over the schedule property as alleged by the
plaintiff, and it is the first defendant was acquired the
schedule property by her herself and has put construction
much before her husband has sold his property, the theory
put forth by the plaintiffs that the 1st defendant's husband
has acquired the schedule property in favour of his wife is
not correct, the first defendant neither authorized nor
30 O.S.No.742/2009
C /w O.S.6616/2011
permitted the first plaintiff to put any construction namely
'B' schedule property as averred in memorandum of plaint.
25. Further it is the case of the plaintiff is that, it will
not be out of place to mentioned here that no gentlemen
will sell his property and put up construction on some
others property without there being any document to the
said effect. The 1st plaintiff is none other than her 3rd son in
law and unfortunately she last her daughter Smt.Kala,
thereafter first plaintiff was remarried, he has also got one
child out of the 2nd wife, and he started betraying the
plaintiffs 2 and 3 who were born from his first wife Kala, it
is at that stage the plaintiff No.2 and 3 have developed lot
of attachment with their grandmother i.e. 1st defendant,
since the first plaintiff pleaded financial problems and he
could not locate a suitable premises near the schedule
property, it is at that stage the 1st plaintiff occupied leased
premises i.e. 'B' schedule property along with his 2nd wife
and plaintiff No. 2 and 3, and she has no personal
knowledge that first plaintiff sold site No.32 and reason for
such sale, the 2nd floor was constructed by the 1st
defendant and it was not constructed by 1st plaintiff as
alleged by first plaintiff, similarly the defendant is not
permitted the 1st plaintiff to put up any construction in the
'B' schedule property as indicated by him in the
memorandum of plaint, even today it is the first defendant
31 O.S.No.742/2009
C /w O.S.6616/2011
is maintaining the 'B' schedule property and paying the tax
as and when it falls due, suit schedule property is the
exclusive property of first defendant, the plaintiff is jealous
about her first son-in-law and unnecessary is trying to
create bad image against him due to her old age she is not
in a position to move out from the house freely, and the
plaintiffs have not acquired any semblance of right, title and
interest over the suit schedule property, the first plaintiff is
residing along with his family members in the leased
schedule 'B' property as a tenant and not as co-owners as
alleged by them.
26. It is the specific case of the plaintiff in
O.S.6616/2017 is that, the immoveable property bearing
No.99 situated at 3rd cross KSRTC layout, which was
acquired, owned, possessed and enjoyed by
Smt.A.Sharavathi w/o late Sri.H.S.Krishnamurthy, who is
none other than the mother of the plaintiff and
grandmother of the defendant No.1 and 2, originally it was
vacant land and was allotted in favour of G.H.Gangadhara
S/o H.Gangappa by the K.S.R.T.C. Employees Co.Operative
Housing Society Limited, for the sake of convenience it is
referred as Society, thereafter the society executed the sale
deed in favour of G.H.Gangadhara through regd.sale deed
dt.12.9.1983, thus conveying absolute, right and interest,
and his name is entered in the concerned revenue records
32 O.S.No.742/2009
C /w O.S.6616/2011
and has paid up to date tax. thereafter G.H.Gangadhara
sold the said property in favour of A.Sharavathi through
registered Sale deed dt.20-12-1984, thereafter katha
stands in her name and she has paid up to date tax and she
applied and obtained license and plan from the competent
authority and availed loan of Rs.6,00,000/-from Bharath
Housing Cooperative society by mortgaging the property,
and as she is a Teacher, hence she availed a sum of
Rs.39,000/- from the Karnataka State Housing
Mahamandali and put up a construction residential house
comprising of a ground, first and 2nd floor, thereafter she
has discharged the loan.
27. Further it is the he case of the plaintiff is that,
one of the daughter of Smt.Kala is none other than the
mother of the defendants had an ultimately death on
10.6.2000, at that time the defendants were very young
and their father Mr.R.Nagedra husband of the deceased
Smt.Kala, approached the A.Saravathi, and requested her
to occupy the 2nd floor of the premises, taking into
consideration of the tender age of the defendants permitted
the R.Nagendra to occupy the 2nd floor premises as a tenant
on a monthly rent of Rs.3000/-, since Mr.Nagendra was
none other than her son in law, taking him into confidence,
the said Smt.A.Sharavathi did not prefer any document in
this regard, the said portion occupied by the defendant is
33 O.S.No.742/2009
C /w O.S.6616/2011
referred as schedule property. The said Sharavathi was
advancing in age and she required a constant care taker,
for which one of the daughters were ready, she requested
to quit and deliver the vacant possession of the schedule
property, but the defendant did not to do so, and she filed a
HRC petition before the Small Cause Court in HRC
No.122/2009 for eviction of the tenant, the said petition
came to be dismissed.
28. It is the specific case of the defendants in
O.S.No.6616/2011 is that, the defendant No.1 to 3 are the
father and children, the plaintiff is the daughter of one
Sharavathi and late H.S.Krishnamurthy, Krishnamurthy
expired in the year 2006, Krishnamuhty and Sharavathi had
one more daughter by name Smt.Kala and son by name
Srinath, the Kala expired in the year 2000 leaving behind
her husband Sri.Nagendra who is the third defendant, the
defendant No.1 and 2 are his sons, H.S.Krishnamurthy was
an employee of K.S.R.T.C. he retired as A.T.S. in the year
1984, he was a member of K.S.R.T.C. Employees Housing
Society, who was allotted site No.275 in the layout formed
by the Society, since the site was big site and he sold the
said site to Dr.Venkatesh in the year 1983, out of the sale
consideration he purchased site No.99 in the same layout in
the name of his wife Smt.Sharavathi, but the entire sale
consideration of the site was paid by her husband, he
34 O.S.No.742/2009
C /w O.S.6616/2011
retired in the year 1984 and after his retirement benefits he
constructed a ground floor residential unit on the site out of
his fund in the year 1984 , in the year 2002 first floor was
built on his own fund, thus the said property is a joint
family property. The son of H.S.Krishnamurhty, K.Srinath
met with an accident near Puna and succumbed to death,
the compensation amount received by H.S.Krishnamruthy
also utilized for construction of first floor.
29. Further it is the specific case of the defendant is
that, the 3rddefendant married Smt. Kala D/o
H.S.Krishnamurthy in the year 1991, in the wedlock the
defendant No.1 and 2 are born to the defendant No.3 and
Smt.Kala, unfortunately Kala also expired in the year 2000
leaving the defendants are his only legal heirs, the
defendant No.1 and 2 were 7 years when they lost their
mother, after expiry of their own son Srinath
Sri.H.S.Krishnamruhy and his wife Smt.Sharavathi
opinioned all their 3 daughters should have equal share in
the property No.99, 3rd cross KSRTC Layout, J.P.Nagar,
Bangalore, however after expiry of Smt.Kala, the 3rd
defendant was residing at No.6/2, Triveni Cross,
Kadirenahally main road, Bangalore along with his children,
at that time Sri.H.S.Krishnamurthy and his wife decide that
their grandsons namely defendant No.1 and 2 should not be
put to hardship because of loss of their mother they
35 O.S.No.742/2009
C /w O.S.6616/2011
expressed their love and affection to their grand children
and they suggested that the 3rd defendant could construct a
residential unit in property No.99, 3rd cross, K.S.R.T.C.
layout, 2nd stage, J.P.Nagar, Bangalore, and reside there, so
the defendant No.1 and 2 could be near to them, heeding to
their wishes the 3rd defendant constructed the 2nd floor unit
consisting of 2 rooms , a hall , kitchen and bathroom totally
measuring 5.3 squares in the year 2005 which is suit
schedule property, this residential unit constitute of 2nd
floor of property No.99, 3rd cross, KSRTC layout , JP Nagar ,
Bengaluru, which is the suit schedule property. Ever since
the construction of 2nd floor the defendants are residing in
the 2nd floor portion.
30. Further it is the case of the defendants is that,
H.S.Krishnamurthy expired on 10.3.2007, thereafter
defendants have succeeded to the schedule property as co-
owners, late Sharavathi heeding to the ill advise of one
V.Venkatesh who is none other than the husband of the
plaintiff and certain other persons has changed her mind
and started insisting the defendants to vacant the 2nd floor
portion of their occupation, the defendants have invested
huge amount for construction of 2nd floor structure on the
advise and representation of the H.S.Krishnamurthy and
Sharavathi, the 3rd defendant disposed off site bearing
No.32, situated at KSRTC Employees Co-operative Housing
36 O.S.No.742/2009
C /w O.S.6616/2011
society housing Ltd., in Sy.No.61/2 and 61/3
Chikkakalasandra, Uttarahally hobli, Bangalore South Tq,
which was owned by him and invested the amount for
putting up construction over the suit schedule property,
hence the defendants sought for partition and separate
possession of the share in the suit property as they are
inherited from Smt.Kala. As a counterblast Sharavathi got
issued notice setting up a tenancy, hence defendants have
filed O.S.No.742/2009 during the life time of Sharavathi
who filed HRC No.122/09 which came to be dismissed as
there is no landlord and tenants relationship and the
plaintiff have suppressed the material facts.
31. In order to prove the case of the plaintiffs in
O.S.No.742/2009 the minor guardian of the plaintiffs i.e.
plaintiff No.1 was examined as P.W.1 has filed his sworn
affidavit in lieu of the chief-examination as P.W.1, wherein
he has reiterated the same contents, which he has narrated
in his plaint, hence, in order to avoid repetition of the same
facts, I have not discussed once again. In support of his
oral evidence he has produced documents Ex.P1 to 7. For
the sake of convenience I have summarized these
documents as Ex.P-1 is the Marriage Invitation Card, Ex.P-
2 is the Marriage Certificate, Ex.P-3 & 4 are the Birth
Certificates, Ex.P-5 is the S.S.L.C. Marks card, Ex.P-6
is the Demand Notice, Ex.P-7 is the Khata Extract.
37 O.S.No.742/2009
C /w O.S.6616/2011
Subsequently, the plaintiff No.2 and 3 become major, hence
plaintiff No.1 was discharged from minor guardian, the
plaintiff No.2 become plaintiff No.1, who examined as P.W.2
and no documents got marked as exhibits.
32. The Power of attorney holder of plaintiff No.1
and 2 in O.S. 742/2009 and S.P.A. holder of defendant No.1
and 2 O.S.6616/2011 is filed his sworn affidavits, in view of
the chief examination as P.W.5, wherein he has reiterated
the same contents, which he has narrated in the plaint as
well as written statement, hence, in order to avoid
repetition of the same facts, I have not discussed once
again. In support of his oral evidence he has produced 17
documents as Ex.P-1 to 17 for the sake of convenience I
have summarized these documents as Ex.P1 & 2 are the
Death certificates, Ex.P-3 is the Sale deed dt.20.12.84,
Ex.P-4 is the Mortgage deed, dt.04.10.85, Ex.P-5 is the
Mortgage discharge certificate, Ex.P-6 is the Letter of
Housing Federation Ltd, Ex.P-7 is the Affidavit, Ex.P-8 is the
Certificate issued by BDA, Ex.P-9 is the Discharge of
mortgage, Ex.P-10 & 11 are the demand notices, Ex.P-12 &
13 are the Encumbrance Certificates, Ex.P-14 is the
Summons to witness, Ex.P15 is the Will, Ex.P-15 (a) to ( c)
Signature identified by P.W.2, Ex.P-15 (d) to (f) mark
through P.W.4, Ex.P-16 & 17- documents mark through
P.W.5
38 O.S.No.742/2009
C /w O.S.6616/2011
33. On the other hand in order to disprove the case
of the plaintiff the S.P.A. holder of defendants No.1 and 2
has filed his sworn affidavit in lieu of his chief examination
as D.W.1 and no documents marked as exhibits, however
Ex.D1 to 8 are marked during the course of cross
examination of P.W.1 by way of confrontation. For the sake
of convenience I have summarized these documents i.e.
Ex.D.1 is the Certified copy of the sale deed dt.20.12.1984,
Ex.D-2 is the Certified copy of the mortgage, deed
dt.4.10.1985, Ex.D-3 is the Discharge certificate, Ex.D-4
is the certified copy of affidavit in O.S.6616/2011, Ex.D-5
is the Certified copy of Ex.P9 (discharge of mortgage deed)
in O.S.6616/2011, Ex.D-6 to 8 are the certified copy of the
Ex.P10 to 12 marked in O.S.No.6616/2011.
34. The defendant No.3 in O.S.No.742/2009 has filed
her sworn affidavit in lieu of her chief examination as
D.W.2, wherein she has reiterated the same contents which
she has narrated in her written statement and she has not
got marked any documents as exhibits.
35. During the cross examination of P.W.1 and P.W.5
by name Nagendra, has stated that, it is true that
defendant purchased the suit property prior to his marriage,
the details of the written statement and by the first
39 O.S.No.742/2009
C /w O.S.6616/2011
defendant he is not enquired with his Lawyer, he don't
know the documents submitted by the defendant. He can
read and write English, he can see the document
dt.20.12.1984 executed in favour of the 1st defendant by
G.H.Gangadhar, the O.S.No.6616/2011 is also pertaining to
the suit property of the above suit, he can identified the
signature of his mother in law, (both counsels submit that
the above case is connected with O.S.6616/2011 and that
documents have also produced in O.S.6616/2011) witness
is shown the original Ex.P3 of O.S.6616/2011 and the
witness admits that document and signature of the first
defendant in that document, the certified copy of the said
document is marked at Ex.D1 and signature is marked at
Ex.D.1(a). Further stated that, Ex.D1 to 8 indeed is in the
name of first defendant Sharavathi, he has not read the
contents of Ex.D1 and he has not produced any documents
to show that Krishnamurthy to have sold and purchased the
said property.
36. Further has stated that, he has not produced any
documents to show that the construction of 2nd floor. There
is no documents to show that the first defendant has
permitted for the construction of the 2nd floor. He has
spend Rs.5 ½ lakhs to construct the 2nd floor and he has
not produced any documents regarding this. It is true the
hat as on the date all the documents of the entire property
40 O.S.No.742/2009
C /w O.S.6616/2011
stands in the name of first defendant. At the time of
construction of 2nd floor the 2nd defendant has aged about
12 years, therefore his children did not have any income to
contribute to the construction of the 2nd floor.
37. During the cross examination of P.W.1 who is
defendant No.2 in O.S.No.6616/2011 has categorically
stated that, it is true that the said site measuring 60 x 40 ft
was allotted prior to the execution of Ex.P3. There was
permission for construction of 3 floor granted in the suit
schedule property, it was her mother who constructed the
house at first ground floor was put up and subsequently
remaining floors was constructed, it is true that after the
construction of the first floor, her parents shifted to grounds
floor, and first floor was rented out, after her marriage she
was visiting her parents house, but when her mother fell
sick she got resided with her. The 2nd floor was constructed
in the year 2004-05, the defendants have residing from the
year 2005, it is true that after death of her son, her parents
were residing in the ground floor of the suit schedule
property, and the 3rd defendant has been working in the
KSRTC department, it is false that the 3rd defendant being
related and also son in law therefore decided along with the
parents to look after them and further had put up the
construction of the 2nd floor, he don't know if the 3rd
defendant had allotted the site by the KSRTC Housing
41 O.S.No.742/2009
C /w O.S.6616/2011
society, it is false that the 3rd defendant had sold their site
and out of the sale proceeds had constructed the 2nd floor,
it is false that her parents not constructed financially for the
construction of 2nd floor.
38. During the cross examination of D.W.1 in
O.S.No.6616/2011 by name Nagendra has stated that, it is
false that his children are not having any right over the suit
property, witness voluntary states that the suit schedule
property was the plaintiff's grand fathers property, hence
they are having right over it. It is true that he has not
produced any documents to show that, schedule property
stands in the name of H.S.Krishnamurthy, it is true that all
the documents produced in this case are stands in the
name of first defendant who is wife of
Sri.H.S.Krishnamurthy. He has not produced any
documents to show that who has constructed the 2nd floor
of the schedule property, witness voluntarily stated that he
don't know if disputes will arise, he has spent Rs.6,00,000/-
for construction of 2nd floor in the year 2005, he sold his
site and constructed the 2nd floor, he has not shown the
said Sale of site and construction of the 2nd floor by
spending Rs.6,00,000/- in his income tax statement.
39. D.W.2 in O.S.No.6616/2016 by name Smt.K.Jyothi
D/o defendant No.1 has stated in her cross examination
42 O.S.No.742/2009
C /w O.S.6616/2011
that, in the year 1991 she got married, in between 1 ½
year she was residing with her maternal house due to her
pregeny and medical aid. Since 1995 she was residing in
the address shown in the chief affidavit, she is aware that
her mother was a teacher who retired in the year 1990.
her father purchased the site in which her mother had
constructed. Further has stated that, she don't have any
document to show that property was purchased by her
father, witness voluntarily states that she know the facts by
way of conversation, from 1983-2007 she was a Bank
Employee she don't have any document to show that
defendant No.3 Nagendra constructed the 2nd floor, it is
true that during the life time of her father her relationship
with her mother in good terms, witness voluntarily states
that some time she used to get angry, it is true that she is
a party to the proceedings in O.S.742/2009, she don't
remember that whether she filed written statement or not.
40. The plaintiff has produced the documents which
are marked at Ex.P1 to 7. Ex.P1 is the marriage invitation
card of Kala and Nagendra, Ex.P2 is the marriage Certificate
of Kala and Nagendra, Ex.P3 & 4 are the birth certificates,
ExP5 is the SSLC marks card of Kala, Ex.P6 is the demand
notice of BBMP, Ex.P7 is the katha extract of the suit
property. On perusal of Ex.P1 to 5 which are no way
concerned to the suit schedule property. Ex.P6 and 7 are
43 O.S.No.742/2009
C /w O.S.6616/2011
demand notice issued by the BBMP in favour of
A.Sharavathi and khata stands in the name of Sharavathi in
respect of the suit schedule property. On perusal of the
above documents produced by the plaintiff which are no
way helpful to the plaintiff in respect of the contentions
taken by him that suit schedule property was allotted to
one H.S.Krishnamurthy, subsequently he sold the said
property and out of the said sale proceedings has
purchased the suit schedule property.
41. On perusal of the Ex.D1 which is certified copy of
the sale deed dt.20.12.1984 in respect of the property
bearing No.99 situated at K.S.R.T.C Layout at Sy.No.8, 9,
10, 17/1-2 and 21 of Malenahally village, and 95, 98/1-2-3-
4 of Nayanappasetty Palya (Sarakki), Bangalore South
Taluk, Bangalore, measuring East to West: 30 feet or 9.14
meters, North to South : 40 feet or 12.19 meters in total
111.41 square meters bounded towards East - site No.98,
West - Site No.100, North- site No.53 and South - by
Road. The said property was purchased by
Smt.A.Sharavathi w/o Sri. H.S. Krishna Murthy from one
G.H.Gangadhara. Ex.D2 is the mortgage deed, dt.4.10.1985
executed in between Smt.A.Sharavathi and her husband
H.S. Krishna Murthy in favour of Bharath Housing
Co.Operative Society Ltd, showing to raise the loan of
Rs.39,000/- by mortgaging the suit property. Ex.D3 is the
44 O.S.No.742/2009
C /w O.S.6616/2011
Discharge Certificate issued by the Bharath Housing
Co.Operative Society Ltd., regarding payment of loan from
the said society, Ex.D4 is the Discharge Certificate issued
by the Karnataka State Housing Federation Ltd., Bangalore
regarding discharge of the registered assignment deed
executed in favor of the Karnataka State Housing
Federation Ltd., Bangalore, are clearly demonstrate that the
suit schedule property stands in the name of A.Sharavathi
and she has purchased the said property.
42. It is pertinent to note that, though the plaintiff in
O.S.742/2009 contended that, husband of Sharavathi was
working at K.S.R.T.C., and he was a member of the KSRTC
Housing Society, and he was allotted site bearing No.275 by
the said society, since the said site was big, and hence he
sold the same to one Dr.Venkatesh in the year 1993, and
out of the said sale consideration amount husband of the
Sharavathi by name H.S. Krishnamurthy who purchased the
site bearing No.99 in the same layout, and the sale
consideration was paid by H.S.Krishnamurthy, later
H.S.Krishnamurthy constructed ground floor residential unit
on the site out of his funds in the year 1984, and in the
year 2002 , 1st floor was built and the fund was provided by
H.S.Krishnamurthy only, thus the said property which is
now bearing property No.99 is a joint family property. In
order to prove these contentions the plaintiff in
45 O.S.No.742/2009
C /w O.S.6616/2011
O.S.No.742/2009 was not produced any documents to show
that the site was allotted to H.S. Krishnamurthy from
K.S.R.T.C. Housing Cooperative Society and also he has not
produced any document to show that he sold the same to
Dr.Venkatesh, out of the sale proceeds he purchased the
suit schedule property. In the absence of such material
evidence the contention taken by the plaintiff in
O.S.No.742/2009 is not accepted. So far as relationship of
the plaintiff and defendant is concerned, it is admitted fact
that the Kala, Usha, Jyothi and and Srinath are the Lrs of
the deceased A.Sharavathi, It is admitted fact that
A.Sharavathi was the wife of Sri.H.S.Krishnamurthy. Ex.D4
is the affidavit in respect of Genealogical tree which clearly
demonstrate that A.Sharavathi died leaving behind her Lrs
as Kum.K.Usha, and Kum.K.Kala and K.Srinath, this
document is not questioned or challenged by both parties,
more over parties of both the suits have admitted that Kala
is the daughter of Smt.A.Sharavathi. Therefore, the
defendant No.3 in O.S.No.6616/2011 proved that Smt.Kala
is the daughter of H.S.Krishnamurthy and
Smt.A.Sharavathi.
43. As could be seen from the oral and documentary
evidence adduced by both the parties as discussed in supra
paras, I am of the opinion that the suit schedule property
was purchased by one Sharavathi through the regd. Sale
46 O.S.No.742/2009
C /w O.S.6616/2011
deed dt.20.12.1984, there after her name stands in the
concerned revenue records and subsequently she has
constructed the house in the suit schedule property by
raising the loan. The defendant in O.S.No.6616/2011 and
plaintiff in O.S.742/2009 have not produced any documents
to show that he has spent more than Rs.5 lakhs in order to
construct the 2nd floor. Therefore, taking into consideration
of the above discussion, I am of the opinion that the
plaintiff in O.S.No.742/2009 have failed to prove that suit
schedule 'A' property is the self acquired property of
H.S. Krishna Murthy, on the other hand the 3rd defendant in
O.S.6616/2011 failed to prove that the suit schedule
property was purchased by one H.S.Krishnamurthy the
father of the plaintiff in the year 1984 and his wife, but
proved that Smt.Late Kala is the daughter of said
H.S.Krishnamurthy and Smt.A.Sharavathi, on the other
hand the plaintiff in O.S.6616/2011 proves that her mother
has invested a sum of Rs.60,000/- and 39,000/- for
construction of residential house comprising of ground floor,
first and 2nd floor in the suit schedule property. And the
defendant No.1 in O.S.742/2009 proves that the suit
schedule properties are defendant No.1's self acquired
properties, and the third defendant in O.S.No.6616/2011
failed to prove that with the permission of father of plaintiff
he constructed 2nd floor residential unit consisting of 2
rooms, hall , kitchen and a bath room, and the plaintiffs in
47 O.S.No.742/2009
C /w O.S.6616/2011
O.S.No.742/2009 fails to prove that the plaintiff No.1 who
had constructed 2nd floor of the building i.e. schedule 'B' of
the plaint. Hence, I answer issue No.1, 2 in
O.S.No.742/2009 and issue No.4 in O.S.No.6616/2011 are
in the negative, and issue No.4 in OS.No.742/2009 and
recasting issue No.1 in O.S.No.6616/2011 are in answered
in the affirmative, issue No.3 in O.S.No.6616/2011 is
answered partly in affirmative.
44. Issue No.2 in O.S.6616/2011 & Additional
Issue No.1 in O.S.No.742/2009: These issues are
interlinked, hence, to avoid the repetition of the same facts,
I have discussed these issues simultaneously for my
common consideration.
It is the specific case of the plaintiff in
O.S.No.742/2009 and defendants in O.S.No.6616/2011 are
that, the Will alleged to have been executed fraudulently
obtained by the defendant No.2 and 3, the suit schedule
property is not acquired by the self acquired property of the
1st defendant, but was acquired by the grand father of
plaintiff No.2 and 3 Sri.Krishnamurthy. As such the first
defendant could not have bequeathed the property in
favour of defendant No.2 and 3, however the execution of
Will by the first defendant is not admitted and is disputed
by the plaintiff. The first defendant would not have
48 O.S.No.742/2009
C /w O.S.6616/2011
bequeathed the entire property only in favour of defendant
No.2 and 3, as the plaintiff No.2 and 3 are the children of
first daughter of defendant, the defendant had no right,
title, interest over the 2nd floor of schedule 'B' property was
constructed by 1st plaintiff for the benefit of first daughter
of first defendant and her children without any help or
assistance from the first defendant or her husband, as such
the Will said to have been executed by the first defendant is
no legal sanctity and therefore, is not legally enforceable it,
will take away the right and interest of the plaintiff in the
schedule property.
45. It is the specific case of the plaintiff in
O.S.6616/2011 and defendant in O.S.No.742/2009 are
that, the HRC No.122/2009 was came to be dismissed,
hence doubting on the R.Nagendra the A.Sharavathi
executed her last registered Will and testament, concerning
the said referred property on 17.12.2008, and the said
R.Nagendra filed partition suit through the defendants
representing the minor defendants as father and natural
guardian against Smt.A.Sharavathi in O.S.742/2009, the
same is pending before CCH--39, the defendants having
attend the age of the majority have come on record in the
said suit, during the pendency of the suit Sharavathi died
testate, under the last Will she bequeathed the ground floor
and the 2nd floor portion of the aforesaid property in favour
49 O.S.No.742/2009
C /w O.S.6616/2011
of her elder daughter Smt.Usha i.e. the defendant and first
floor portion in favor of her 2nd daughter Jyothi, after the
death of A.Sharavathi they become the absolute
beneficiaries with regard to portion bequeathed their
favour, have acquired the title. Accordingly, as per the
ground floor portion and first floor portion bequeathed in
terms of Will. In this stage it is necessary to go through
the legal provisions of proving the will as provided under
Section 63 of Indian Succession Act, the will compulsorily
attestable document. It reads as under:
" Every testator nor being a soldier
employed in an expedition or engaged in
actual warfare or a mariner at sea, shall
execute his "Will" according the following
rules:-
(a) The testator shall sign or shall
affix his mark to the Will, or it shall be
signed by some other person in his
presence and by his direction.
(b) The signature or mark of the
testator, or the signature of the person
signing for him, shall be so placed that it
shall appear that it was intended thereby
to give effect to the writing as a Will;
(c) The "Will" shall be attested
by two or more witnesses, each of
whom has seen the testator sign or
affix his mark to the "Will" or has
been some other person sign the "Will" in
50 O.S.No.742/2009
C /w O.S.6616/2011
the presence and by the direction of the
testator or has received from the testator
a personal acknowledgment of his
signature or mark, or of the signature of
such other person and each of the
witnesses shall sign the " Will" in the
presence of the testator, but it shall not
be necessary that more than one witness
be present at the same time and no
particular form of attestation shall be
necessary."
From the plain reading of above provisions of law it is
clear that the " Will" is compulsorily attestable document
and at least two witnesses shall sign and attest the "Will"
Sec.68 (a) of Indian Evidence Act, which reads as
under:-
"if a document is required by law to
be attested, it shall not be used as
evidence until one attesting witness the
least has been called for the purpose of
proving its execution, if there be an
attesting witness alive and subject to the
process of the Court and capable of giving
evidence.
Provided that it shall not be necessary
to call on attesting witness in proof of the
execution of any document, not being a
Will, which has been registered in
accordance with the provisions of the
Indian Registration Act unless is execution
by the person by whom it purports to
51 O.S.No.742/2009
C /w O.S.6616/2011
have been executed is specifically
denied."
46. From the plan reading of Sec.68 of Indian
Evidence Act, it is clear that in case of compulsorily
attestable document in order to prove the said document,
at least one witness has to be examined. Provisions under
Section 68 made it clear even if the document is registered
and execution of the will is not denied by executants, then
also in case of will at least one of the attesting witness has
to be examined in order to prove the will under Section 68
of Evidence Act.
47. In order to prove the due execution of Will the
attesting witness has examined as P.W.2 in
O.S.No.6616/2011, wherein he has stated that he was
present at the time of prefer and its registration, and also
he was present at the time of signing the said will by
A.Sharavathi, thereafter he put his signature. Further has
stated that after its registration the said Will was handed
over to him, now has produced the Will before this court
which was marked as Ex.P15 and he has identified the
signatures of himself and Sharavathi and another attesting
witness by name Sriranga which are marked at Ex.P15 (a)
to (c).
52 O.S.No.742/2009
C /w O.S.6616/2011
48. And in order to prove the due execution of Will,
another attesting witness has filed his sworn affidavit in lieu
of his chief examination as P.W.3 in O.S.No.6616/2011,
wherein he has stated that, he know the A.Sharavathi and
he signed witness to the Will dt 17.12.2008, and he know
the contents of the will and he has identified his signature
and signature of A.Sharavathi which are already marked at
Ex.P15 (a) and ( c).
49. And the scribe has filed his sworn affidavit in lieu
of his chief examination as P.W.4 in O.S.No. 6616/2011,
wherein he has stated that, on the basis of the instructions
of A.Sharvathi has preferred Ex.P15.
50. During the cross examination of P.W.2 he has
categorically stated that, he knows the mother of the
plaintiff Sharavathi from 30 to 35 years, as she is his
relative, she requested him to sign on the will, he don't
remember who had prepared the will, he don't know who
were present at the time of preparation of the will, she had
taken him to Sub Registrar Office to sign on the will. He
don't remember who were present at that time along with
Sharavathi, Further stated that, Advocate and witness were
present when he signed the will, Ranga is the brother in law
of Sharvathi, it is false that Sharavathi was not in a good
state of health at the time f execution of the will, he don't
53 O.S.No.742/2009
C /w O.S.6616/2011
know if the will was not voluntarily executed by Sharavathi
and that Sharavathi was obligated to execute the Will at the
instance of her daughter and son in law, it is false that
Sharavathi was not aware that the documents preferred to
be the will.
51. During the cross examination of P.W.3 has
categorically stated that, at the time of registration of the
will, Ex.15 Sharavathi was at her residence, it is true that
Sharavathi was not healthy at the time of execution of
Ex.P15 due to Diabetic, Sharavathi had poor vision, it is
true that Sharavathi had undergone heart surgery, it is true
that Sharavathi was not able to understand the things at
the time of execution of Ex.P15. At the time of signing the
Ex.P15 Sharavathi had stated to give one share to the 3rd
defendant and also construction expenditure of the 2nd
floor. During the last days Sharavthi was looked after by
her 2nd daughter, Ex.P15 has been got obtained by the
daughter and son in law of Sharavathi in order to avoid the
share of the property of the 3rd defendant.
52. And P.W.4 is the scribe who has stated that, he
has prepare the Will at the instruction of Smt.A.Sharavahi.
during his cross examination he stated that, it is false that
Sharavathi has not come to his office on that day for the
purpose of ex.P15, he don't draft any Will without the
54 O.S.No.742/2009
C /w O.S.6616/2011
presence of party concerned. On the basis of original oral
instruction of Sharavthi only he preferred Ex.P15. in order
to prove he due execution of will the evidence of the scribe
is restricted, and has categorically stated that, he has
prepare the will on the basis of oral instructions of
A.Sharavthi, on taking into consideration of thhe above
evidence of P.W.4 it clearly speaks that he is only a scribe,
in order to prove the due execute of the will evidence of
attesting witness is must.
53. The P.W.3 who is one of the attesting witness has
categorically stated that, A.Sharavathi has not healthy at
the time of execution of the Will, due to diabetic, poor
vision, also she had undergone heart surgery, it is true that
Sharavathi was not able to understand the things at the
time of execution of Will. And also has stated that , at the
time of signing of Ex.P15 Sharavathi had stated to give one
share to the 3rd defendant and also the construction
expenditure of the 2nd floor. It is true that taking
advantage of the ill health of Sharathi Ex.P15 has been got
obtained by the daughter and son-in-law of Sharavathi in
order to avoid the share of the property of 3rd defendant,
therefore on the basis of the above admissions given by
P.W.3 which create some suspicious circumstances with
respect to the due execution of Ex.P15. further it clearly
speaks that A.Sharavathi has not having a good state of
55 O.S.No.742/2009
C /w O.S.6616/2011
mind at the time of execution of Ex.P15, as the P.W.3 has
categorically stated that, Sharavathi was unable to
understand the things at the time of execution of Ex.P15 ,
and also has stated that at the time of signing of Ex.P15
Sharavathi had stated to give one share to the 3rd
defendant, which itself clearly goes to show that the
intention of the Sharavathi is not executed the alleged Will
as contended by the defendant in O.S.No.6616/2011.
Therefore the above said evidence clearly goes to show that
there is a suspicious while executing the Ex.P15, and which
clearly speaks that dispossessions made in the Will being
unnatural, improbable or unfair. When there is suspicious
circumstances surrounded the alleged will before accepting
the said document as a genuine will the Court must
ascertain that whether the such suspicious circumstances
removed or not.
54. In this juncture the learned counsel for the
defendants in O.S.6616/2011 has relied the ruling reported
in AIR 1964 Supreme Court 529 in Shashikumar Banerjee
and others Vs Subodh Kumar Banerjee since deceased and
after him his legal representatives and others. Wherein it
has been held that;
"(A) Succession Act-(39 of 1925),
S.63, S.289 - Will - Mode of proof - Onus
56 O.S.No.742/2009
C /w O.S.6616/2011
- Principles indicated- When Court would
grant probate".
Further it has been held in paragraph No.4 is that;
"The principles which govern the
proving of a will are well settled; (see
H.Venkatachala Iyengar v.
B.N.Thimmajamma, 1959 Supp (1) SCR 426
: (AIR 1959 Supreme Court 443) and Rani
Purniama Devi v. Khagendra Narayan Dev,
(1962) 3 SCR 195 : AIR 1962 Supreme
Court 567). The mode of proving a will
does not ordinarily differ from that of
proving any other document except as to the
special requirement of attestation prescribed
in the case of a will by S.63 of the Indian
Succession Act. The onus of proving the
will is on the propounder and in the absence
of suspicious circumstances surrounding the
execution of the will, proof of testamentary
capacity and the signature of the testator as
required by law is sufficient to discharge the
onus. Where however there are suspicious
circumstances, the onus is on the
propounder to explain them to the
satisfaction of the Court before the Court
accepts the will as genuine. Where the
caveator alleges undue influence, fraud and
coercion, the onus is on him to prove he
same. Even where there are no such pleas
but the circumstances give rise to doubts, it
is for the propounder to satisfy the
conscience of the Court. The suspicious
circumstances may be as to genuineness of
the signature of the testator, the condition of
the testator's mind, the deposit is made in
the will being unnatural improbable or unfair
57 O.S.No.742/2009
C /w O.S.6616/2011
in the light of relevant circumstances or
there might be other indication in the will to
show that the testator's mind, the
dispositions made in the will being unnatural
improbable or unfair in the light of relevant
circumstances or there might be other
indication in the will to show that the
testator's mind was not free. In such a case
the Court would naturally expect that all
legitimate suspicion should be completely
removed before the document is accepted as
the last will of the testator. If the
propounder himself takes part in the
execution of the will which confers a
substantial benefit on him, that is also a
circumstance to be taken into account, and
the propounder is required to remove the
doubts by clear and satisfactory evidence. If
the propounder succeeds in removing the
suspicious circumstances the Court would
grant probate, even if the will might be
unnatural and might cut off wholly or in part
near relations. It is in the light of these
settled principles that we have to consider
whether the appellants have succeeded in
establishing that the will was duly executed
and attested".
55. Further has relied the ruling reported in AIR 1965
Supreme Court 354 in Ramachandra Rambux Vs Champa
Bai and others. Wherein it has been held that;
"(A) Succession Act (39 of 1925), S.61,
S.63 - Burden of proof- Will prepared under
suspicious circumstances-Propounder should
remove suspicion".
58 O.S.No.742/2009
C /w O.S.6616/2011
Further it has been held that;
" In all cases in which a will is prepared
under circumstances which arouse the
suspicion of the Court that it does not
express the mind of the testator, or that it
was prepared under highly suspicious
circumstances, it is for the propounder of the
will to remove that suspicion"
Further it has been held that;
"(B) Evidence Act, (1 of 1872), S.5,
S.118- Credibility of witnesses - It is open
to Court to look into surrounding
circumstances".
Further it has been held in paragraph No.9 of the said
judgment;
" (9) Dealing with the made of proof of a will, this
Court has observed in H.Venkatachala Iyengar V.
B.N.Thimmajamma, 1959 Supp (1) SCR 426 at p.443: (AIR
1959 Supreme Court 443 at p.451 -452):
" As in the case of proof of other
documents so in the case of proof of wills it
would be idle to expect proof with
mathematical certainty. The test to be
applied would be the usual test of the
satisfaction of the prudent mind in such
matter."
59 O.S.No.742/2009
C /w O.S.6616/2011
However, there is one important feature
which distinguishes wills from other
documents. Unlike other documents the will
speaks from the death of the testator, and so,
when it is propounded or produced before a
court, the testator, who has already departed
the world cannot say whether it is his will or
not at all maintainable in law or on facts. And
this aspect naturally introduces an element of
solemnity in the decision of the question as to
whether the document propounded is proved
to be the last will and testament of the
departed testator. Even so, in dealing with
the proof of the wills the court will start on
the same enquiry as in the case of the proof
of documents. The propounder would be
called upon to show by satisfactory evidence
that the will was signed by the testator, that
the testator at the relevant time was in a
sound and disposing state of mind, that he
understood the nature and effect of the
dispositions and put his signature to the
document of his own free will. Ordinarily
when the evidence adduced in support of the
will is disinterested, satisfactory and sufficient
to prove the sound and disposing state of the
testator's mind and his signature as required
by law, courts would be justified in making a
finding in favour of the propouner. In other
words, the onus on the propounder can be
taken to be discharged on proof of the
essential facts just indicated.
There may, however, be cases in which
the execution of the will may be surrounded
by suspicious circumstances. The alleged
signature of the testator may be shaky and
doubtful and evidence in support of the
propounder's case that the signature in
60 O.S.No.742/2009
C /w O.S.6616/2011
question is the signature of testator may not
remove the doubt created by the appearance
of the signature;...... the dispositions made in
the will may appear to be unnatural,
improbable or unfair in the light of relevant
circumstances; or, the will may otherwise
indicate that the said dispositions may not be
the result of the testator's free will and mind.
In such cases the court would naturally expect
the all legitimate suspicious should be
completely removed before the document is
accepted as the last will of the testator. The
presence of such " suspicious circumstances
naturally tends to make the initial onus very
heavy and unless it is satisfactorily
discharged, courts would be reluctant to treat
the document as the last will of the testator."
This Court also pointed out that apart
from suspicious circumstances of this kind
where it appears that the propounder has
taken a prominent part in the execution of the
will which confers substantial benefits on him
that itself is generally treated as a suspicious
circumstance attending the execution of the
will and the propounder is required to remove
the suspicion by clear and satisfactory
evidence. In other words, the propounder
must satisfy the conscience of the Court that
the document upon which he relies is the last
will and testament of the testator".
56. Further has relied the ruling reported in 2010
AIR SCW 3935 in S.R.Srinivasa & Others Vs
S.Padmavathamma, wherein it has been held;
61 O.S.No.742/2009
C /w O.S.6616/2011
"(A) Succession Act (39 of 1925), Ss.
63, 68-Will-Proof-None of attesting witnesses
examined - Scribe has not stated that he had
signed Will with intention to attest - He
merely stated that he was scribe of Will -Even
admitted that he could not remember names
of witnesses to Will-Thus mere signature of
scribe cannot be taken as proof of
attestation".
57. I have carefully gone through the supra
decisions, in the instant case as per the evidence of P.W.3
has categorically stated that, Sharavathi was not healthy at
the time of execution of will due to diabetic , poor vision ,
also she had underwent heart surgery and she was not able
to understand the things at the time of execution of will,
and at the time of signing the Ex.P15 Sharavathi was stated
to give one share to the 3rd defendant which clearly goes to
show that the will is not executed by the Sharavathi with
her free will which creates a suspicious circumstances with
respect of the Ex.P15. Therefore the principles involved in
the supra decisions and the facts of the present case are
one and same, and aptly applicable to the present case in
hand, hence this court reluctant to treat the Ex.P15 as the
1st Will of testator. Therefore, I am of the opinion that the
Plaintiff in O.S.NO.6616/2011 has failed to prove that her
mother A.Sharavathi had executed a will in favour of the
plaintiff bequeathing the ground floor and 2nd floor portion
in the suit schedule property and the defendant No.2 in
62 O.S.No.742/2009
C /w O.S.6616/2011
O.S.No.742/2009 has failed to prove that the defendant
No.1 has bequeathed the schedule property in favour of
defendant No.2 and 3 under a Will dated 17.12.2008, hence
I answers issue No.2 in O.S.No.6616/2012 and additional
issue No.1 in O.S.No.742/2009 in the negative.
58. Issue No.5 in O.S.No.6616/2011:- It is the
specific case of the 3rd defendant in O.S.NO.6616/2011 is
that, H.S.Krishnamurthy expired on 10.3.2007, thereafter
defendants have succeeded to the schedule property as co-
owners, late Sharavathi heeding to the ill advise of one
V.Venkatesh who is none other than the husband of the
plaintiff and certain other persons have changed her mind
and started insisting the defendants to vacant the 2nd floor
portion of their occupation, the defendants have invested
huge amount for construction of 2nd floor structure on the
advise and representation of the H.S.Krishnamurthy and
Sharavathi, the 3rd defendant disposed off site bearing
No.32, situated at KSRTC Employees Co-operative Housing
society housing Ltd., in Sy.No.61/2 and 61/3
Chikkakalasandra, Uttarahally hobli, Bangalore South Tq,
which was owned by him and invested the amount for
putting up construction over the suit schedule property.
59. It is the specific case of the plaintiffs in
O.S.No.6616/2011 that, doubting on R.Nagendra,
63 O.S.No.742/2009
C /w O.S.6616/2011
A.Sharavathi executed her last regd. Will and testament,
concerning the said referred property on 17.12.2008, and
the said R.Nagendra filed partition suit through the
defendants representing the minor defendants as father and
natural guardian against Smt.A.Sharavathi in
O.S.No.742/2009 the same is pending before CCH-39, the
defendants having attend the age of the majority have
come on record in the said suit, during the pendency of the
said suit, Sharavathi died testate, under the last will she
bequeathed the ground floor and the 2nd floor portion of the
aforesaid property in favour of her elder daughter Smt.Usha
i.e. the defendant and first floor portion in favour of her 2nd
daughter Jyothi, after the death of A.Sharavathi they
become the absolute beneficiaries with regard to portion
bequeathed in their favour have acquired the title.
60. It is pertinent to note that, since already
discussed in supra paras that the defendant No.2 in
O.S.No.742/2009 has failed to prove the additional issue
No.1 and plaintiff in O.S.No.6616/2011 has failed to prove
the issue No.2, and if the will is proved, then they will not
become the co.owners of the suit schedule property, and in
view of non proving the due execution of will under Ex.P15
it is undoubtedly clear that the defendant No.1 to 3 are the
co.owners of the schedule property, hence I answer issue
No.5 in O.S.No.6616/2011 is in the affirmative.
64 O.S.No.742/2009
C /w O.S.6616/2011
61. Issue No.6 & 7 in O.S.6616/2011 and Issue
No.3 and 5 in O.S.No.742/2009:-
Since the plaintiffs in O.S.No.6616/2011 have filed
this suit against the defendants for the relief of declaration,
declaring that she is the absolute and exclusive owner of
the schedule property directing the defendant to quit and
vacant possession of the suit schedule property, on the
other hand the plaintiff in O.S.No.742/2009 have filed this
suit against the defendants for the relief of partition and
separate possession of plaintiff's 1/3rd share in the 'A'
schedule property and sought the permanent injunction.
On taking into consideration of both suits if the alleged will
i.e. Ex.P15 is proved, the plaintiff in O.S.No.742/2009 are
not entitled any relief, in the instant case as discussded in
supra paras the Ex.P15 Will is not proved as the suspicious
circumstances surrounded by the Ex.P15 is not removed.
Therefore, in view of non proving of Ex.P15 Will the
plaintiffs in O.S.No.742/2009 are entitled to get the share.
Admittedly, the plaintiffs in O.S.No.742/2009 are the
childrens are deceased Kala who is thhe daughter of
A.Sharavathi and H.S.Krishnamurthy. This is admitted fact,
none of the parties have denied the relationship between
the Kala and Sharavathi as well as the plaintiffs in
O.S.No.742/2009. when the Kala , Usha and Jyothi are the
Lrs of deceased A.Sharavathi, except them none of them
65 O.S.No.742/2009
C /w O.S.6616/2011
are claimed as clause-I heir. If any clause-I heirs are
claimed, the daughters will have get the notional partition.
Admittedly, the male son of A.Sharavathi by name Srinath
died in the accident, therefore the plaintiffs iand defendant
No.2 and 3 in n O.S.No.742/2009 are entitled equal share,
therefore the plaintiffs are entitled 1/3rd share in the suit
schedule property, consequently in view of non proving the
will i.e. Ex.P15 the plaintiffs in O.S.No.6616/2011 are not
entitled any relief, hence I answer issue No.6 & 7 in
O.S.No.6616/2011 are in the Negative and issue No.3 & 5
in O.S.No.742/2009 are in the affirmative.
62. Issue No.6 in O.S.No.742/2009 and issue
No.8 in O.S.No.6616/2011:- In the result, I proceed to
pass the following:
ORDER
The Suit of the plaintiffs in O.S.No.742/2009 is hereby decreed.
And the plaintiffs in O.S.No.742/2009 are entitled 1/3rd share in the suit schedule 'A' property.
Draw the preliminary decree accordingly.
66 O.S.No.742/2009C /w O.S.6616/2011 The Suit of the plaintiff in O.S.No.6616/2011 is hereby dismissed.
Under these peculiar circumstances both parties have bear their own costs.
Draw the decree accordingly.
Keep the copy of this Judgment in O.S.No.6616/2011.
(Dictated to the judgment writer directly on computer, corrected by me and then pronounced by me in the open court, on this 1st day of September, 2018).
(G.A.MULIMANI) XIV Addl. City Civil Judge Bangalore.
A N N E X U R E:
List of witnesses examined on behalf of Plaintiff side in O.S.742/2009:
P.W.1 : Nagendra
P.W.2 : Prasad
67 O.S.No.742/2009
C /w O.S.6616/2011
List of witnesses examined on behalf of Plaintiff side in O.S.No.6616/2011:
P.W.1 : K.Usha P.W.2 : K.N.Keshawarao P.W.3 : H.S.Ranganath P.W.4 : Pavamana P.W.5 : Nagendra
List of witnesses examined on behalf of defendants side in O.S.No.6616/2011:
D.W.1 : Nagendra D.W.2 : K.Jyothi
List of documents exhibited on behalf of plaintiff in O.S.No.742/2009:
Ex.P-1 : Marriage Invitation Card Ex.P-2 : Marriage Certificate Ex.P-3 &4 : Two Birth Certificates.
Ex.P-5 : S.S.L.C. Marks card,
Ex.P-6 : Demand Notice
Ex.P-7 : Khata Extract
68 O.S.No.742/2009
C /w O.S.6616/2011
List of documents exhibited on behalf of defendant in O.S.No.742/2009:
Ex.D1 : Certified copy of sale deed, dt.20.12.1984 Ex.D2 : Mortgage deed, dt,4.10.1985 Ex.D3 : Discharge Certificate Ex.D4 : Certified copy of affidavit (Ex.P7) in O.S.6616/11 Ex.D5 : Certified copy of Ex.P9 in O.S.No.6616/2011 Ex.D6 & 7: Certified copy of Ex.P10 &11 in O.S.No.6616/2011 Ex.D8 : Certified copy of Ex.P12 in O.S.No.6616/2011 List of documents exhibited on behalf of plaintiff in O.S.6616/2011 Ex.P1 & 2 : Death certificates Ex.P-3 : Sale deed dt.20.12.84 Ex.P-4 : Mortgage deed dt.04.10.85 Ex.P-5 : Mortgage discharge certificate Ex.P-6 : Letter of Housing Federation Ltd.
Ex.P-7 : Affidavit, Ex.P-8 : Certificate issued by BDA Ex.P-9 : Discharge of mortgage
Ex.P-10 & 11 : Demand notices Ex.P-12 & 13 : Encumbrance Certificates Ex.P-14 : Summons to witness Ex.P15 : Will Ex.P-16 : Power of Attorney Ex.P-17 : C/c of the Sale deed, dt.20.01.1984.69 O.S.No.742/2009
C /w O.S.6616/2011 List of documents exhibited on behalf of defendant in O.S.6616/2011 Ex.D-1 : Certified copy Ex.P3 in O.S.No.6616/2011 Ex.D-2 : Certified copy Ex.P4 in O.S.No.6616/2011 Ex.D-3 : Certified copy Ex.P5 in O.S.No.6616/2011 Ex.D-4 : Certified copy Ex.P7 in O.S.No.6616/2011 Ex.D-5 : Certified copy of Ex.P9 in O.S.6616/2011 Ex.D-6 to 8 : C/c of the Ex.P10 to 12 in O.S.No.6616/2011 XIV ADDL.CITY CIVIL JUDGE BANGALORE Digitally signed by GOLLALAPPA AYYAPPA MULIMANI DN: cn=GOLLALAPPA GOLLALAPPA AYYAPPA MULIMANI,ou=HIGH AYYAPPA COURT OF MULIMANI KARNATAKA,o=GOVE RNMENT OF KARNATAKA,st=Karn ataka,c=IN Date: 2018.09.06 11:15:20 IST