Bangalore District Court
Canara Bank vs Smt.Malathi R. Prasad on 2 June, 2022
KABC010008202018
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.KASHIM CHURIKHAN.
B.A., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 2nd day of June 2022.
O.S.No.241/2018
PLAINTIFFS : 1. Canara Bank,
A body corporate constituted under
the Banking Companies (Acquisition
& Transfer of Undertakings) Act, 1970,
having its Head Office at No.112,
J.C.Road, Bengaluru.
And one of its Branch Offices called as
"Wills Department, Executor, Trustee &
Taxation Section",
Bengaluru Stock Exchange Towers,
No.51, 1st Cross, J.C.Road,
Bengaluru.
Represented by its Law Officer
Sri.Manoranjan.
(By Sri.K.A., Advocate)
2. Smt.Malathi R. Prasad,
W/o.Late Rajendra Prasad,
(also known as R.R.Prasad)
59 years,
R/at.No.139, 7th Cross,
O.S.No.241/2018
2
23rd Main, J.P.Nagar 2nd Phase,
Bengaluru.
3. Mrs.Anisha Prasad,
D/o.Late Rajendra Prasad,
(also known as R.R.Prasad)
39 years,
R/at.No.4812, 192nd
DR Sammamish,
WA 98074 - USA.
4. Mrs.Ashwini Prasad,
D/o.Late Rajendra Prasad,
(also known as R.R.Prasad)
34 years,
R/at.No.1440,
Green Field DR,
PLANO TX 75025 - USA.
5. Mr.Airudh Prasad,
S/o.Late Rajendra Prasad,
(also known as R.R.Prasad),
32 years,
R/at.No.1045, Brook Circle,
Folsom-95630 CA. - USA.
(By Sri.B.S.R., Advocate)
.Vs.
DEFENDANTS : 1. Smt.Malathi R. Prasad
2. Smt.Anisha Prasad
3. Smt.Ashwini Prasad.
4. Sri.Airudh Prasad.
(Defendant Nos.1 to 4 transposed as
Plaintiff Nos.2 to5 as per the order,
dated:5.06.2018 by this Hon'ble
Court)
O.S.No.241/2018
3
5. Smt.Sowmya Prakash,
D/o.Late K.S.Ramamurthy,
W/o.Dr.Murthappa N. Prakash,
60 years,
R/at.No.65, Cliffwood Drive,
South Windsor, CT 06074 - USA.
(By Sri.S.K., Advocate)
Date of institution of suit : 08.01.2018
Nature of Suit : Suit for Probate
Date of commencement of 22.08.2019
evidence :
Date on which the judgment 02.06.2022
is pronounced:
Duration taken for disposal : Year/s Month/s Day/s
04 04 24
JUDGMENT
The present suit proceeding earlier was registered in P & SC No.26/2017. As the respondent No.5 has filed objections to the main petition, my predecessor in office had passed an order to convert P & SC proceeding into suit proceeding.
The plaintiff No.1 has filed this proceeding to grant probate of Last Will, dated:25.06.1987 of Sri.K.S.Ramamurthy to have effect to the State of Karnataka in its favour as Executor.
2. Brief facts of the case are as under :
The plaintiff No.1 has contended that one Sri.K.S.Ramamurthy, S/o.Late K.V.Subba Rao, aged O.S.No.241/2018 4 about 75 years was the resident of No.62, 23 rd Cross, III Block East, Jayanagar, Bengaluru and he was working as Divisional Engineer in P & T Department. Sri.K.S.Ramamurthy was the absolute owner of the schedule property and it is his self acquired property. Sri.K.S.Ramamurthy and his wife Smt.R.Saraswathi were living in the said schedule house. Sri.K.S.Ramamurthy was died on 15.11.1992 at Mayya Nursing Home, Bengaluru and his wife Smt.R.Saraswathi died on 2.04.2016.
Sri.K.S.Ramamurthy had executed his Last Will and Testament, dated:25.06.1987 at plaintiff No.1's "Will Department, Executor, Trustee & Taxation Section", Bengaluru Stock Exchange Towers, No.51, 1 st Cross, J.C.Road, Bengaluru and appointed the plaintiff No.1-Canara Bank as his Executor to carryout his wishes in accordance with the terms of the Will. Sri.K.S.Ramamurthy wrote a letter, dated:25.06.1987 in favour of the plaintiff No.1 annexed with his Last Will. Sri.K.S.Ramamurthy was hale and healthy and was in sound disposing state of mind. The Will was attested by two witnesses. It is contended that the plaintiff No.1's responsibility as Executor or Trustee will come into effect on the demise of the Testator. The Testator's family consists of himself, his wife-Smt.R.Saraswathi, his son Sri.Rajendra Prasad, living at Hyderabad and his daughter Smt.Soumya Prakash. As per Clause 13 of O.S.No.241/2018 5 the Will, the Testator bequeathed the schedule property in favour of his wife Smt.R.Saraswathi for her life interest with all rights, privileges and powers attached thereto (save and except that of alienation in any manner) for the enjoyment of the same without any let or hindrance from anyone. As per the terms of the Will, his wife Smt.R.Saraswathi had no right to mortgage or let out or transfer, in any manner the schedule property during her life time. As per Clause 14 of the Will, after the death of Testator's wife, the schedule property was bequeathed in favour of his son Sri.R.Rajendra Prasad, who is also known as Sri.R.R.Prasad. The Legatee Sri.R.Rajendra Prasad died on 27.05.1998 in Andhra Pradesh leaving behind him his legal heirs wife and 3 children, who were respondent Nos.1 to 4 in P & SC proceedings. Therefore, bequeathed property devolved on wife and children of Sri.R.Rajendra Prasad. The daughter of Testator was respondent No.5 in P & SC proceedings. It is contended that the plaintiff No.1 is being Executor of the Will appointed by Testator, who reposed faith and confidence with the plaintiff No.1 to carry out his wishes and accordingly, the plaintiff No.1 is constrained to file proceedings seeking for probate of Will. The petition schedule property is situated within the limits of this court. Hence it has been filed before this court. Prays to grant probate as prayed.
O.S.No.241/2018 6 The wife and children of Sri.R.Rajendra Prasad, who is son of Testator were designated as respondent Nos.1 to 4 in P & SC proceedings. They have filed their objection statement and have not denied the plaint averments. It is contended that the Testator had executed his Last Will in respect of the schedule property and nominated the plaintiff No.1 Canara Bank as Executor of the Will. It is contended that the Testator bequeathes the schedule property to his wife Smt.R.Saraswathi for her life interest, thereafter the property to be bequeathed to his son Sri.R.Rajendra Prasad with a condition that he shall pay half of the fair value as fixed Rs.4,00,000/- and as Rs.20,000/- every year cumulative upto the year of death of his wife. Similarly, in the event Sri.R.Rajendra Prasad is unable to pay the said value as fixed, then similar payment of default, the respondent No.5 would get similar right to pay to Sri.R.Rajendra Prasad. In the event, both the children fail to honour the bequeath, the Executor has to dispose off the property equally among the Testator's children. It is contended that after the death of Testator, his wife Smt.R.Saraswathi got katha transferred in her name in BBMP Records. It is contended that the son of Testator Sri.R.Rajendra Prasad expired on 27.05.1998 leaving behind these respondent Nos.1 to 4. As per the Will of the Testator, the original Will is in the custody of the plaintiff No.1 Bank. The bank has sought probate of the Will. It is O.S.No.241/2018 7 contended that any disposition of the property by any person is void ab-initio. Thus, disposition of the property by Smt.R.Saraswathi is void as it is contrary to clause of the Will. Hence, any person claiming any right through Smt.R.Saraswathi cannot claim any right in terms of the Will. Prays to grant probate as prayed by the bank.
3. The respondent No.5/daughter of the Testator filed her statement to the main petition. She has admitted the execution of the Will by the Testator and appointment of the plaintiff bank as Executor of the Will. It is contended that the Testator has conferred an absolute estate, right, title and interest unperturbed and unhindered by any of the limitations in favour of her wife Smt.R.Saraswathi. So, Smt.R.Saraswathi becomes absolute owner of the schedule property in view of Section 14(1) of Hindu Succession Act. It is contended that once the Testator has given absolute right in favour of his wife, all other words were superfluous and redundant. It is contended that Smt.R.Saraswathi was competent to let out the property. The restrictions placed by the Testator gets annulled of absolute ownership on the bequeathed property. It is contended that Smt.R.Saraswathi had right to let out and collect rents from tenants. The municipal records changed in her name. She paid municipal tax until the property was gifted to his O.S.No.241/2018 8 daughter/respondent No.5. It is further contended that Smt.R.Saraswathi is being the absolute owner of the schedule property had gifted the said property in favour of respondent No.5 under registered Gift Deed, dated:7.12.2004. Thus, the respondent No.5 is in possession and enjoyment of the schedule property as absolute owner. It is contended that the respondent Nos.1 to 4 have not taken care of the Testator or his wife Smt.R.Saraswathi. It is contended that the Executor has deliberately not stated about the alleged correspondence between the Executor and other respondents. The Executor is guilty of suppression of material facts. The correspondence between the Executor and other respondents subsequent to the death of Smt.R.Saraswathi is of no consequences and has no bearing or effect of the rights of late Smt.R.Saraswathi, which she got under Will.
4. Looking to the statement of respondent No.5, my predecessor in office had passed an order to convert P & SC proceedings into suit proceedings. The respondent Nos.1 to 4 have been transposed as plaintiff Nos.2 to 5.
5. On the basis of pleadings of the parties, my learned predecessor in office had framed the following issues.
1. Whether the plaintiff proves that the Will, dated:25.06.1987 is the Last Will O.S.No.241/2018 9 duly executed and attested by Late K. S. Ramaswamy bequeathing the suit schedule property in favour of the plaintiff Nos.2 to 5 ?
2. Whether the plaintiff further proves that under the Will, dated:25.06.1987 late K.S. Ramaswamy has appointed the plaintiff No.1 as the Executor ?
3. Whether the plaintiff proves that the Testator of the Will was of sound and disposable state of mind when he executed the Last Will and Testament dated 25.06.1987 ?
4. Whether the plaintiffs are entitled for grant of probate of the aforesaid Last Will & Testament dated:25.06.1987 executed by the Testator bequeathing the schedule property ?
5. Whether the plaintiffs prove that the Gift Deed dated:7.12.2004 executed by Smt. R. Saraswathi W/o.Late K.S.Ramamuthy in favour of Smt. Sowmya Prakash-Defendant is not binding on the plaintiff Nos.2 to 5 and not valid in law ?
6. What Order or Decree ?
6. In order to prove their case, the authorised person by the Executor Bank is examined as P.W.1 and one Attesting Witnesses P.W.2 and got marked the documents Exs.P.1 to 8. On the other hand, the defendant No.5-Daughter of the Testator has appointed her G.P.A.Holder to defend her case. He is examined as D.W.1 and got marked the documents Exs.D.1 and 2.
O.S.No.241/2018 10
7. Heard arguments. The learned counsel for defendant No.5 has filed written argument.
8. The learned counsel for plaintiff No.1 has relied on the following dictums.
1. (2006) 8 SCC 75 ;
2. (2018) 12 SCC 1.
9. The learned counsel for defendant No.5 has relied on the following dictums :
1. AIR 1977 SC 1944 ;
2. AIR 1983 Karnataka 67 ;
3. AIR 1996 SC 1697 ;
4. (1997) 9 SCC 613 ;
5. AIR 1998 SCC 2401 ;
6. AIR 1999 SCC 1147 ;
7. AIR 1996 Madras 436 ;
8. AIR 2001 Madras 320 ;
9. Copy of Judgment in Crl. Appeal No.1543- 1544/2019 of Hon'ble Supreme Court ;
10. Copy of Judgment in Crl. Appeal No.5894/2019 of Hon'ble Supreme Court .
10. My findings to the above issues are as under:
ISSUE No.1 - Affirmative, ISSUE No.2 - Affirmative, ISSUE No.3 - Affirmative, ISSUE No.4 - Affirmative, ISSUE No.5 - Affirmative, ISSUE No.6 - As per the final order, O.S.No.241/2018 11 for the following :
REASONS
11. ISSUE Nos.1 TO 3 : Since all these issues are interconnected, they have been taken up together for my discussion in order to avoid the repetition of reasonings.
The plaintiff No.1-Canara Bank claims that it is Executor and Trustee of the Will, dated:25.06.1987 executed by late K.S.Ramamurthy, its case that it is the Last Will of Sri.K.S.Ramamurthy. Under the said Will, the bank has been appointed as Executor. At the time of execution of Will, the Testator was in sound and disposable state of mind. The respondent Nos.1 to 4, who later has been transposed as plaintiff Nos.2 to 5 having not objected to the plea taken by the plaintiff No.1. Even the contested party defendant No.5 has not denied the execution of the Will by Sri.K.S.Ramamurthy and appointment of plaintiff No.1 as Executor and the Testator was of sound and disposable state of mind at the time of execution of the Will.
12. P.W.1-G.P.A.Holder of plaintiff No.1 has deposed on oath that Sri.K.S.Ramamurthy had executed the Will and appointed the plaintiff No.1 bank as Executor to carry his will and wish as per the terms of the Will. He has stated that the Testator was sound and disposable state of mind. In support of the version of P.W.1, the attesting witness has been examined as P.W.2. His O.S.No.241/2018 12 version corroborates with the version of P.W.1 as well as the pleadings of the plaintiff No.1. He has stated that at the time of execution of the Will, dated:25.06.1987, the Testator was of sound and disposable state of mind, in his presence Testator put signature on the Will-Ex.P.2 and he has identified the same, it marked at Ex.P.2(a) and the witness signature is marked at Ex.P.2(b). Nothing has been elicited from the mouth of P.Ws.1 and 2 to discard the execution of Will by Sri.K.S.Ramamurthy and appointment of plaintiff No.1-Bank as Executor and sound state of mind of the Testator at the time of execution of Will. Apart from in the written argument filed by the learned counsel for defendant No.5, wherein at para No.13, it is stated that there is no dispute as to execution of the Will by Sri.K.S.Ramamurthy and appointment of plaintiff No.1 as Executor and sound disposing state of mind of Sri.K.S.Ramamurthy as to execute the Will. Under the circumstances, I am of the opinion that the plaintiffs prove these Issue Nos.1 to 3 in their favour. Accordingly, I answer the Issue Nos.1 to 3 in the Affirmative.
13. ISSUE Nos.4 & 5 : Since both these issues are interconnected, they have been taken up together for my discussion in order to avoid the repetition of reasonings.
The plaintiffs claim that the plaintiff No.1-Bank has O.S.No.241/2018 13 to carry out the will and wish of the Testator Sri.K.S.Ramamurthy as per the terms of the Will, dated:25.06.1987. So, pray to issue probate in favour of plaintiff No.1-Bank.
Contrary to it, the defendant No.5 claims that the Testator Sri.K.S.Ramamurthy bequeathed the schedule property in favour of his wife Smt.Saraswathi. He was dead on 15.11.1992. After the death of Testator, his wife Smt.Saraswathi becomes absolute owner of the schedule property as per Section 14(1) of Hindu Succession Act, 1956. Therefore, mother of defendant No.5 had executed the Gift Deed, dated:7.12.2004 in favour of defendant No.5 in respect of the schedule property. Smt.Saraswathi was dead on 2.04.2016. As per the Gift Deed executed by Smt.Saraswathi, the defendant No.5 became absolute owner of the schedule property. Accordingly, her name has been entered in the records of the schedule property and she is in possession.
14. Per contra, the plaintiffs have contended that the Testator Sri.K.S.Ramamurthy has bequeathed the schedule property in the name of his wife Smt.Saraswathi for her life interest. Therefore, Smt.Saraswathi was not become absolute owner of the schedule property. She had no right to transfer the schedule property in any way or kind that too by way of gift in favour of defendant No.5. Therefore, the Gift O.S.No.241/2018 14 Deed, dated:7.12.2004 alleged said to have executed by Smt.Saraswathi in favour of defendant No.5 in respect of the schedule property is not binding on the plaintiffs.
15. P.W.1-Employee of the plaintiff No.1-Bank, who has authorised to institute the proceeding to carry the will and wish of the Testator as per the contents of the Will has given his evidence by way of affidavit. He has categorically stated about the execution of the Will by Sri.K.S.Ramamurthy in respect of the schedule property in favour of his wife Smt.Saraswathi. As per the contents of Ex.P.2-Will, only life interest provided to Smt.Saraswathi. She has no right to alienate the schedule property. It is not her absolute property to alienate by way of gift in favour of defendant No.5. He has further stated that Ex.P.2-Will has been deposited in plaintiff No.1-Bank. In this regard, he has produced the letter written by Testator Sri.K.S.Ramamurthy, it is marked at Ex.P.1. He has further stated that as Smt.Saraswathi had no right to alienate in any kind, the alleged Gift Deed is not binding on the plaintiffs. He has produced the Death Certificates of Testator, his wife and his son, these are marked at Exs.P.3 to 5. The Survival Family Members Certificate of deceased son is in Telugu language and its translation copy are marked at Exs.P.6 and 7. Accordingly, the plaintiff Nos.2 to 4 O.S.No.241/2018 15 are the survival members of the deceased son of Testator.
During the course of cross examination by the learned counsel for defendant No.5, he has denied that on the basis of Will, the wife of Testator namely Smt.Saraswathi becomes absolute owner of the schedule property. He has further denied that Smt.Saraswathi had right to alienate the schedule property. He has further denied that Smt.Saraswathi was being absolute owner of the schedule property had gifted the schedule property in favour of defendant No.5 and it is binding on the plaintiffs.
16. On the other hand, the G.P.A.Holder of defendant No.5 has given his evidence by way of affidavit as D.W.1. He has reiterated the facts of written statement. He has stated that the schedule property is self acquired property of the Testator, he bequeathed the same by way of Will in favour of his wife Smt.Saraswathi and after the death of Testator, Smt.Saraswathi became absolute owner of the schedule property and she had every right to alienate the schedule property. She had executed the Gift Deed
-Ex.D.2 in favour of defendant No.5, it is binding on the plaintiffs. However, in the cross examination by the learned counsel for the plaintiffs he has admitted the fact that the suit property is being the self acquired O.S.No.241/2018 16 property of Testator Sri.K.S.Ramamurthy bequeathed the schedule property in the name of his wife Smt.Saraswathi for the life interest. He has further admitted that as per the terms of Ex.P.2-Will, after the death of Smt.Saraswathi, the property would go to son of the Testator. He has denied that Smt.Saraswathi by violating clause No.13 of Ex.P.2-Will had executed the Gift Deed in respect of the schedule property in favour of defendant No.5.
17. The learned counsel for plaintiff No.1 has argued that the plaintiff No.1-Bank is Executor of the Will, does have duty to carry the will and wish of the Testator as per the terms of Ex.P.2-Will. Smt.Saraswathi had limited interest over the schedule property as per the terms of Ex.P.2. The transfer of property by Smt.Saraswathi by way of Gift Deed in favour of defendant No.5 is not binding on the plaintiffs. He has further argued that the defense taken by defendant No.5 that once the property acquired by Hindu Female, she become absolute owner of the said property, any kind of terms and conditions are become null and void and the defense case fallen under Section 14(1) of Hindu Succession Act is not correct. He has submitted that the Testator did not bequeath the schedule property in favour of his wife Smt.Saraswathi in lieu of maintenance or arrears of maintenance. Therefore, as per the terms of Ex.P.2-Will, the provision under Section O.S.No.241/2018 17 14(2) of Hindu Succession Act, 1956 does attract to the case on hand. Therefore, the alienation made by Smt.Saraswathi by way of gift as per Ex.D.2 in favour of defendant No.5 in respect of the schedule property is not binding on the plaintiffs. In support of his case, he relied on the above said dictums.
18. The learned counsel for defendant No.5 has argued that the Testator had bequeathed the schedule property as maintenance to his wife Smt.Saraswathi. Such being the fact, if falls under Section 14(1) of Hindu Succession Act, 1956 and not under Section 14(2) of Hindu Succession Act, 1956. Therefore, Smt.Saraswathi was being absolute owner of the schedule property had executed the Gift Deed in favour of defendant No.5 in respect of the schedule property and it is binding on the plaintiffs. In this regard, he has relied on the above said decisions.
19. Before I would go for appreciation of materials placed on record, I would like to re-produce Section 14 of Hindu Succession Act, 1956, which reads thus :
14. Property of a female Hindu to be her absolute property.--
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
O.S.No.241/2018 18 Explanation.--In this sub-
section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
20. On careful perusal of the materials placed on record, it postulate that nowhere in Ex.P.2, it is mentioned that the Testator Sri.K.S.Ramamurthy had bequeathed his self acquired property in favour of his wife Smt.Saraswathi for her maintenance. Such being the fact, Section 14(1) of Hindu Succession Act, 1956 does not attract to the case of defendant No.5, it falls O.S.No.241/2018 19 under Section 14(2) of Hindu Succession Act, 1956. As such, Smt.Saraswathi did not have absolute right over the schedule property to execute the Gift Deed-Ex.D.2 in favour of defendant No.5 in respect of the schedule property. Therefore, I respectfully submit here that the above decisions relied by the learned counsel for defence would not come to support the defendant's case. In the decisions relied by the learned counsel for defendant No.5, it is held that if the property is bequeathed in lieu of maintenance or arrears of maintenance, etc., then Section 14(1) of Hindu Succession Act, 1956 does attract or otherwise Section 14(2) of Hindu Succession Act, 1956 is attracted.
In this context, I would like to refer the dictums of the Hon'ble Supreme Court relied by the learned counsel for plaintiff No.1 reported in
1. (2006) 8 SCC 75 (Sadhu Singh .Vs. Gurdwara Singh Narike & Others), wherein Their Lordships have held as under :
"Hindu Succession Act, 1956 -
Section 14(2) - Applicability -
Testamentary disposal of self acquired property - Widow's right - Testator having his wife and two nephews but no children, executing Will in respect of his self acquired property, giving only life estate to wife and stipulating that during her lifetime she was not entitled either to testamentarily dispose of the O.S.No.241/2018 20 property or two mortgage or sell it to anyone and that after her death the property would devolve on his nephews in equal shares - After testator's death in 1977, his widow had no pre-existing right in the self acquired property of her husband - Therefore, life estate given to her under the Will cannot get enlarged into absolute estate under Section 14(1)"
"Hindu Succession Act, 1956 -
Sections 30 and 14 - A male Hindu has a right to testamentarily dispose of his self acquired property - On execution of Will bequeathing the property, legatee receives it subject to restrictions, if any, stipulated in the Will and in that case succession provided under the Act will not operate -
Testator can bequeath his self acquired property by providing in the Will only a life estate to his wife and in such case Section 14(2) instead of Section 14(1) will apply".
2. (2018) 12 SCC 1 (Ranvir Dewan .Vs. Rashmi Khanna & Another), wherein Their Lordships have held as under :
" Family and Personal Laws -
Hindu Succession Act, 1956 -
Section 14(1), 92) and 30 -
Property of a female Hindu to be her absolute property - Provision under Section 14(1) of H.S.Act, 1956 in respect of, and exception thereto under Section 14(2) of the O.S.No.241/2018 21 said Act - Principle of law laid down by V.Tulasamma (1977) 3 SCC 99 and Sadhu Singh, (2006) 8 SCC 75 in this regard - Reiterated
- As per that principle, the ambit of Section 14(2) of H.S.Act is confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, Will, instrument, decree, order or award, the terms of which prescribe a "restricted estate" in the property".
The above said dictums are aptly applicable to the present case of plaintiffs.
21. In terms of Ex.P.2-Will, I am of the opinion that the Testator Sri.K.S.Ramamurthy had bequeathed the schedule property to his wife for her limited interest i.e., till her life, she had no right of alienation. For better appreciation of the terms of Ex.P.2-Will, I would like to refer Clause Nos.13, 14, 15, 16, 17, 19 and 20 of Ex.P.2.
"13. I hereby give, devise and bequeath to my wife smt.R.Saraswati for her life, the "Bequeathable Property"
with all rights, privilege and powers attached thereto (save and except that of alienation in any manner) for the enjoyment of the same, without any let or hindrance from anyone.
My wife shall have no right to mortgage, let out or transfer in any manner the house property during her life time. In case the house is let O.S.No.241/2018 22 out by my wife, the Bank shall not have any responsibility of collection of rent or getting the house property vacated.
14. After the life time of my wife Smt.R.Saraswathi, I hereby give, devise and bequeath the "Bequeathable Property" to my son Sri.R.Rajendra Prasad (also known as Sri.R.R.Prasad) on the following conditions all of which shall apply cumulatively, that is to say :-
(a) One half of the fair value of the "bequeathable property"
which is to be ascertained as laid down in Paragraph 17 hereunder, shall be due and payable to my daughter Smt.Sowmya Prakash.
(b) The amount due to the Executors towards "Administration Charges" as morefully referred to in Paragraph 9 above shall be due and payable to the Executors.
(c) The aforesaid sums in their entirety but not through part payments, shall be deposited with the Executors within six (6) months of receipt of the communication from the Executors in this behalf; and until then my son shall not be entitled to the possession or the user of the "bequeathable property".
(d) No interest will be due for O.S.No.241/2018 23 the duration of six months time granted in sub-clause (c) above.
(e) The amounts payable as per sub-clauses (a) & (b) above shall constitute the first charge against the property until they are discharged in full.
(f) The option of my son to accept the bequest with these conditions will lapse automatically if he fails to fulfill in all respects the aforesaid conditions within the time limit laid down above.
15. In the event of the bequest of my son, as detailed in para 14 above, failing to take effect for any reason, as soon as may be after the lapse of option as specified in para 14(f) above, the "bequeathable property" shall stand bequeathed to my daughter Smt.Sowmya Prakash and her descendants on the following conditions all of which shall apply cumulatively, that is to say :-
(a) One half of the 'fair value' of the "bequeathable property"
(which is to be ascertained as laid down in para 17 hereunder), shall be due and payable to my son Sri.R.Rajendra Prasad (also known as Sri.R.R.Prasad) by her.
(b) The amount due to the Executors towards O.S.No.241/2018 24 "Administration Charges" as morefully referred to in Paragraph 9 above shall be due and payable to the Executors.
(c) The aforesaid sums in their entirety but not through part payments, shall be deposited with the Executors within six months of receipt of the communication from the Executors in this behalf and until then my daughter shall not be entitled to the possession or the user of the "bequeathable property".
(d) No interest will be due for the duration of six months time granted in sub-cause (c) above.
(e) The amount payable as per the sub-causes (a) & (b) above shall constitute the first charge against the property until they are discharged in full.
(f) The option of my daughter to accept the bequest with these conditions will lapse automatically if she fails to fulfill in all respects the aforesaid conditions within the time limit laid down above.
16. In the further event of the bequest to my daughter also failing to take effect for any reason, the Executors, as expeditiously thereafter as may be O.S.No.241/2018 25 expedient and prudent, shall dispose of the 'bequeathable property' at a 'fair value' as morefully provided in paragraph 17 hereunder and after reimbursing themselves reasonable expenses incidental to the proper dischare of the duties and other fees and charges as Executors and "the administrative charges" as referred to in Paragraph 9 above, distribute the net proceeds absolutely and equally between my son and my daughter.
17. In the matter of 'fair value of the hosue' :-
(a) for the purpose of paragraphs 14 and 15 supra, the fair value of the "bequeathable property"
should be taken as Rs.Four Lakhs, as increased by as many units of Rs.Twenty Thousand as the number of completed calendar years intervene between December 31, 1986 and the date of demise of my wife.
(b) For the purpose of paragraph 16, it shall be the highest offer received and found acceptable by my Executors after the scrutiny and consideration, on their inviting bids, valid for atleast sixty days for the purchase of the "bequeathable property" through advertisement in the local newspaper and in the 'Hindu' of Madras notifying the sale of the aforesaid 'bequeathable property'.
18. xxxxxxxxxxxx O.S.No.241/2018 26
19. I give devise and bequeath all and every movable together with all rest and residue and in particular all jewellery, silver ware, bank balances, deposits with banks and societies to my wife Smt.R.Saraswathi absolutely. But it shall not be responsibility of the Executors in any way to take any action in respect of any such assets.
20. The expression my son and my daughter wherever occurring in this WILL shall include, their respective heirs, descendents, administrators and Executors as the circumstance may be".
22. Clause-13 of Ex.P.2-Will reflects the right of Legatee Smt.Saraswathi. Accordingly, she had given only life interest. Nowhere it is mentioned that the property is given to Legatee in lieu of maintenance or arrears of maintenance. Therefore, there is no force in the contention taken by the defendant No.5 and the arguments advanced by her learned counsel that the schedule property is given to Smt.Saraswathi in lieu of maintenance or arrears of maintenance, thus she become absolute owner.
She was being given life interest in the schedule property, she had no right to mortgage, let out or transfer by way of gift the schedule property.
As per Clause-14 of Ex.P.2 that after the death of Smt.Saraswathi, the schedule property would go to their son or his heirs and he has to pay half of the price O.S.No.241/2018 27 of the schedule property to the defendant No.5 within six months. If he fails, as per Clause-15 of Ex.P.2, the daughter is entitle to have the property and half of the price of the property to be paid to the son or his heirs. If she fails Clause-16 of Ex.P.2 says that it is the duty of the Executor that he shall dispose off the schedule property and distribute the amount equally to son and daughter. Clause-17 of Ex.P.2 described how to fix the price of the property. As per Clause-19 of Ex.P.2, only all movables would go to the wife Smt.Saraswathi. This clause falsify the case of the defendant No.5 that as per Ex.P.2, the schedule property was bequeathed to Smt.Saraswathi as maintenance. It is mentioned here that nowhere in Ex.P.2, we do not find the fact that the schedule property was given to Smt.Saraswathi for her maintenance. Clause-20 of Ex.P.2 demonstrates that the son and daughter including their heirs. Therefore, the wife and children of deceased son claims their right as per Clause-14 of Ex.P.2.
23. On perusal of the materials placed on record, the plaintiffs bring home their case successfully that Sri.K.S.Ramamurthy had executed Ex.P.2-Will in favour of Smt.Saraswathi for her life interest and the plaintiff No.1 is being Executor shall have the duty to carry out the will and wish of the Testator as per the terms of Ex.P.2-Will. It is further proved by the plaintiffs that O.S.No.241/2018 28 Smt.Saraswathi by violating the terms of Ex.P.2-Will, had executed the Gift Deed-Ex.D.2, dated:7.12.2004 infavour of the defendant No.5. On the other hand, the defendant No.5 fails to prove that the said Gift Deed is binding on the plaintiffs. Therefore, the plaintiff No.1-Bank is entitled for probate. Accordingly, I answer the Issue Nos.4 and 5 in the Affirmative.
24. ISSUE No.6: In view of my findings on Issue Nos.1 to 5 as above, I proceed to pass the following:
ORDER The suit of the plaintiffs is decreed. The plaintiff No.1 is entitled for Probate to execute the will and wish of the Testator as per the terms of Ex.P.2-Will.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment-writer, transcript thereof is corrected, signed and then pronounced by me in the open court on this the 2nd day of June 2022) (KASHIMN CHURIKHAN) LXVII Addl.City Civil & Sessions Judge, BENGALURU.
SCHEDULE All that piece and parcel of the House Property bearing Municipal No.3 (Old No.62), situated at 23 rd 'B' Cross Road, 3rd Block, Jayanagar East, Bengaluru, Ward No.60, Pattabiramanagar Ward, having BBMP PID No.6- O.S.No.241/2018 29 128-3 measuring East to West: 41 feet and North to South: 63 feet, totally measuring 2583 sq. feet together with the building measuring 800 sq. feet in the Ground Floor and bounded as follows:
East by : Site No.62,
East by : Site No.63,
North by : Site No.57,
South by : 23rd Cross Road.
ANNEXURE
1. WITNESSES EXAMINED IN FAVOUR OF THE PLAINTIFF:
P.W.1 Uday Shan Bhag P.W.2 Puttaraju.M.T.
2. DOCUMENTS MARKED IN FAVOUR OF THE PLAINTIFF:
Ex.P.1 Letter given by late Ramamurthy Ex.P.2 Original Will, dated:25.06.1987 Ex.P.2(a) Signature of Ramamurthy Ex.P.2(b) Signature of P.W.2 Ex.P.2(c) Signature of Bank Officer Sri.Chinnakrishna. Ex.P.3 Death Certificate of Ramamurthy Ex.P.4 Death Certificate of Saraswathi Ex.P.5 Death Certificate of R.R.Prasad Ex.P.6 Survival Certificate in Telugu Ex.P.7 English translation version of Ex.P.6 Ex.P.8 Notarized copy of G.P.A. (Original is in Bank)
3. WITNESSES EXAMINED IN FAVOUR OF THE DEFENDANT :
D.W.1 K.S.Hanumantha Rao
4. DOCUMENTS MARKED IN FAVOUR OF THE DEFENDANT :
Ex.D.1 Notarized copy of Power of Attorney Ex.D.2 Copy of Gift Deed, dated:7.12.200 O.S.No.241/2018 30 (KASHIMN CHURIKHAN) LXVII Addl.City Civil & Sessions Judge, BENGALURU.