Bangalore District Court
O.S./2015/2009 on 2 April, 2019
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BANGALORE CITY
Dated on this the 2nd day of April, 2019.
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 2015/2009
Plaintiff :-
Smt.C.Sumithra Bai W/o.Guruduth, 50
Years, R/o.C/o.C.Susheela Bai,
W/o.Late N.Nagesh Rao, No.17, 1st
Main Road, Behind Flour Mill, Kaval
Byrasandra, Bengaluru - 560 032.
[By Sri. Mylaraiah Associates, Advocate]
/ VERSUS /
Defendants :-
1. Vasant K.Kolhapurkar S/o. Late
K.Krishnamurthy Rao, 69 Years.
2. Arun K.Kolhapurkar S/o. Late
K.Krishnamurthy Rao, 67 Years.
3. Smt. Rajini Rao W/o.Umeshnath Rao
D/o. Late K.Krishnamurthy Rao.
4. Smt.Hemalatha W/o.Late K.Vijaykumar,
65 Years.
5. K.Muralidhar S/o. Late K.Vijakumar,
29 Years.
6. K.Srinivas S/o. Late K.Vijakumar, 27
Years.
7. K.Yeshwant S/o. Late K.Vijakumar,
24 Years.
8. Smt.Shailaja Acharya W/o. Ramesh
Acharya, 54 Years.
9. Smt.Girija Srinivasa W/o.Dr.J.K.
Srinivas, 52 Years.
10. K. O. Shivakumar S/o. Late
K.Krishnamurthy Rao, 48 Years.
11. K.Nagaraja Rao S/o. Late
K.Krishnamurthy Rao. Since dead by
LRs :
11(a) Smt.Jayanti S.Ravi W/o.Late S.Ravi,
55 Years.
11(b) Smt.Sugadhi Ashok W/o.Dr.Ashok
Kumar, 51 Years.
12. K.B.Shankar S/o. Late K.Bhujanga
Rao, 57 Years.
13. Shanthi Nagaraj W/o. C.V. Nagaraja
Rao, 55 Years.
14. Smt. Kalpana Prahlad W/o. D.N.
Prahlad, 48 Years.
All R/o.No.6, Karnik Road,
Shankarpuram, Bengaluru - 560 004.
(Sri.K.R.R., Advocate for D.1 to 11, 13.
D.12 and 14 - Ex-parte)
Date of Institution of the suit : 13.03.2009
Suit for permanent
Nature of suit : and mandatory
injunctions
Date of commencement of : 30.08.2010
evidence
Date on which the judgment is : 02.04.2019
pronounced
Years Months Days
Duration taken for disposal :
10 00 19
***
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of mandatory injunction directing the defendant No.11 to accept Rs.31,000/- and to return the original unregistered Will dated 5.3.2008 executed by K.Prabhakar Rao in favour of plaintiff along with the other title deeds in respect of the suit schedule property and for the relief of permanent injunction restraining the defendants from creating any encumbrance over any portion of the suit schedule property.
2. It is the case of plaintiff that, one K.Prabhakar Rao S/o. Late K.Subhramanya Rao was working as a Branch Manager of Muthodi Finance Bank, Infantry Road, Bengaluru. The said K.Prabhakar Rao used to reside at Bengaluru and he has earned the suit schedule property by his own earnings. The father of the said K.Prabhakar Rao i.e., K.Subhramanya Rao married one K.Shakuntala Bai. The said Shakuntala Bai died in the year 1967 and K.Subhramanya Rao died in the year 1981. The said Subramanya Rao had four children, namely K.Krishnamurthy Rao, K.Nagaraja Rao, Late K.Bhujanga Rao and K.Prabhakar Rao. The said Krishnamurthy Rao died on 5.9.2003 leaving behind his wife K.Susheela Bai, Daughter Vasantha K.Kolhapurkar (defendant No.1), Arun K.Kolhapurkar (defendant No.2), Rajini Rao (defendant No.3), K.Vijayakumar, Shylaja Acharya (defendant No.8), Girija Srinivasa (defendant No.9) and Shivakumar (defendant No.10), among them K.Vijayakumar died leaving behind his wife Hemalatha (defendant No.4) and three children namely K.Muralidhara (defendant No.5), K.Srinivasa (defendant No.6) and K.Yashawanth (defendant No.7). Plaintiff further contended that K.Nagaraja Rao (defendant No.11) is alive. K.Bhujangarao died during March 1999. His wife K.Malathi Bai also died on 4.2.2002. They had 3 children namely defendant No.12- K.B.Shankara, defendant No.13 - C. Shanthi Nagara and defendant No.14 - Kalpana Prahlad. The said K.Prabhakar Rao died on 20.3.2008. The said K.Prabhakar Rao was a bachelor. To the extent of the self acquired property of K.Prabhakar Rao either his parents or his brothers or children of his deceased brothers could have no right, title, interest or possession to the extent of any portion of the properties which includes the suit schedule properties. The suit schedule properties are absolutely vested with the said K.Prabhakar Rao during his lifetime. Plaintiff further contended that during the lifetime of K.Prabhakar Rao he has come across several financial crisis and also faced administrative action from his employer in connection with the employer's verification of gold ornaments pledged in the bank found fake. In view of all these ultimately he was removed from service.
3. The plaintiff further contended that K.Prabhakar Rao during his lifetime found that Smt. C.Sumitra Bai i.e., plaintiff who is a far related and she helped him in all his days when he was put in difficulties and since she has not received back in financial help from him, he with a free will and voluntarily has bequeathed the suit schedule properties in favour of plaintiff through an unregistered Will dated 5.3.2008. The said K.Prabhakar Rao by executing the said Will deposited the same with his elder brother defendant No.11 - K.Nagaraja Rao. During the lifetime of K.Prabhakar Rao the first item of the suit schedule properties was let out in favour of one Arun Singh on monthly rent. Now in the first item of the suit schedule properties it is the said tenant Arun Singh is residing. In the said Will said K.Prabhakar Rao made it clear that the plaintiff has to pay a sum of Rs.31,000/- to his brother defendant No.11 - K.Nagaraja Rao which is the only loan amount and liability of repayment owed by K.Prabhakar Rao. In the said Will the plaintiff was directed to pay an amount of Rs.31,000/- to the defendant No.11 - K.Nagaraja Rao and get back the original Will and all other title deeds which are lying with said K.Nagaraja Rao with respect to suit schedule properties. The item No.2 of the suit schedule properties was with the possession of K.Prabhakar Rao and after his death, the plaintiff has taken possession of the said property and she is in possession of item No.2 property.
4. The plaintiff further contended that she was not aware of the fact of executing the Will dated 5.3.2008 in her favour by the said K.Prabhakar Rao. But, she came to know about the said Will in view of the letter written by defendant No.11 on 9.9.2008. In the said letter he put forth so many aspects of the matter, but he communicated the fact of the Will and thereby put forth his unwarranted financial demands. In the said Will it is written that defendant No.11 is entitled only to the extent of Rs.31,000/. The defendant No.11 taking advantage of the weakness of the plaintiff now making all sorts of demands and out of which he is now trying to exploit the money from the plaintiff. The plaintiff further contended that she requested the defendant No.11 for return of the said Will by receiving Rs.31,000/-, but the defendant No.11 flatly refused to the request made by the plaintiff. The plaintiff further contended that the defendants are making hectic attempts to create encumbrance over the suit schedule property with a sole intention to deprive the plaintiff from claiming the same. Therefore, the plaintiff lodged a complaint before the jurisdictional police. Hence, plaintiff prays for decreeing the suit.
5. After institution of the suit, suit summons were issued to the defendants, defendants No.1 to 11 and 13 appeared through their counsel and defendants No.10 and 11 have filed their written statement and defendants No.1 to 9 and 13 have adopted the same. Though the suit summons were duly served upon defendants No.12 and 14, but they remained absent. Hence, defendants No.12 and 14 placed ex-parte.
6. The defendants have contended that the suit filed by the plaintiff is not maintainable either in law or on facts. The defendants further contended that the plaintiff is not the owner of the property nor in actual possession of the suit schedule property. The plaintiff has not produced any document showing the vesting of title in favour of her in respect of the suit schedule property. The defendants further contended that plaintiff is not related to Late K.Prabhakar Rao. Late K.Prabhakar Rao never executed any Will much less the Will dated 5.3.2008. The question of depositing a non-existing Will with the defendant No.11 does not arise at all. The defendant No.11 never wrote letter either on 9.9.2008 or any other day to the plaintiff informing the plaintiff about the execution of the alleged Will dated 5.3.2008 to the plaintiff. The alleged letter dated 9.9.2008 is also concocted and created by the plaintiff for the purpose of making the claim over the property left behind by Late K.Prabhakar Rao. The signature if any found on the alleged letter is not the signature of the defendant No.11. The alleged unregistered Will dated 5.3.2008 is concocted, created, fabricated and sham document. There is no liability created on defendant No.11 by the Late K.Prabhakar Rao and the defendant No.11 is not obligated in any manner to hand over the title deeds to the plaintiff. Therefore, the plaintiff has no locus standi to file the suit. The defendants further contended that the plaintiff is trying to knock off the property belonging to the defendants. The plaintiff in collusion with one Arun Singh and G.V.Venkatarao filed the present suit only to harass the defendants and to make unlawful gain. The plaintiff is totally stranger to Late K.Prabhakar Rao and Late K.Prabhakar Rao is not event acquainted with the plaintiff. the plaintiff is not even a distant relative of Late K.Prabhakar Rao. The plaintiff never helped the Late K.Prabhakar Rao at any point of time. The facts stated in the plaint regarding the affairs of the property of Late K.Prabhakar Rao and his family members are on the basis of the facts disclosed by defendant No.11 in a suit O.S.No.26302/2008 filed by Mr. Arun Singh represented by G.Venkatarao. The plaintiff is not even has got personal knowledge regarding the family of Late K.Prabhakar Rao or his properties. The plaintiff is trying to play fraud on the defendants only to knock off the properties.
7. The defendants further contended that they are the absolute owners of suit schedule properties. The suit schedule properties are originally belongs to Late K.Prabhakar Rao. The said Late K.Prabhakar Rao was unmarried and living alone in the house till 20.3.2008. On his death the defendants who are his brothers and relatives have performed the funeral rituals. The defendants have succeeded to the estate of the deceased K.Prabhakar Rao as per the provisions of Hindu Law. The khatha in respect of the suit schedule properties are yet to be changed in favour of the defendants. The defendants further contended that the plaintiff has created the alleged Will dated 5.3.2008 which is not in existence. The plaintiff has filed the present suit only with an intention to cause harassment to the defendants and to knock off the properties belonged to Late K.Prabhakar Rao, which is not permissible under law. Hence, they pray for dismissal of suit.
8. On the basis of the pleadings and documents of the parties, the following issues were framed by my predecessor in office on 20.2.2010 and additional issues on 9.12.2010 :
(1) Whether the plaintiff proves that she is in possession and enjoyment of the plaint schedule property as on the date of suit, as contended ?
(2) Whether the plaintiff proves the
interference of the defendants, as
alleged?
(3) Whether the plaintiff is entitled for the relief of permanent injunction as sought?
(4) What order or decree?
Additional Issues framed on 9.12.2010 :
(1) Whether the plaintiff proves that the deceased K.Prabhakar Rao had executed an un-registered Will dated 5.3.08 and deposited the same with K.Nagaraja Rao?
(2) Whether the plaintiff proves that Sri.K.Nagaraja Rao i.e., 11th defendant in this case had to accept Rs.31,000/- as per the Will dated 5.3.08 and he has to return the original Will to the plaintiff ? (3) Whether the plaintiff proves that the defendants illegally trying to create an encumbrance over the suit schedule property ?
(4) Whether the plaintiff is entitled for mandatory injunction as prayed ?(5) Whether the defendants No.10 and 11
prove that the suit is not maintainable as contended in the written statement ?
9. Both the counsels submitted on 29.3.2019 that Issue Nos.1 and 2 (5 and 6) framed on 20.2.2010 does not survive for any consideration. Hence, they prayed for deletion of the said issues. On considering the entire pleadings, the plaintiff has not at all claimed the relief of permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit schedule property. Therefore, Issue Nos.1 and 2 (5 and 6) framed on 20.2.2010 have been deleted on 29.3.2019.
10. In order to prove her case, the alleged power of attorney holder of plaintiff namely one Gurudath has been examined as P.W.1 and got marked documents as Exs.P.1 and P.7. The defendant No.11 examined himself as D.W.1, but before cross-examination he died. Hence, his evidence has been expunged. The defendant No.10 examined himself as D.W.2 and got marked documents as Exs.D.1 to D.28. The forensic Director of Truth Lab namely Shankarappa S/o. Shivalingappa has been examined as C.W.1 and the documents got marked as Exs.C.1 to C.3.
11. Heard the arguments.
12. My findings on the above issues are as follows:
Issue No.3 : In the negative.
Addl.Issue No.1: In the negative.
Addl.Issue No.2 : In the negative.
Addl.Issue No.3 : In the negative.
Addl.Issue No.4 : In the negative.
Addl.Issue No.5 : In the affirmative.
Issue No.4(8) : As per final order,
for the following :-
REASONS
13. Additional Issues No.1 to 3 and 5 :- As
these issues are interlinked with each other, in order to void repetition of facts and evidence, these issues are taken up together for discussion.
14. This suit is filed by the plaintiff against the defendants for the relief of mandatory injunction directing the defendant No.11 to accept Rs.31,000/- and to return the original unregistered Will dated 5.3.2008 executed by K.Prabhakar Rao in favour of plaintiff along with the other title deeds in respect of the suit schedule property and for the relief of permanent injunction restraining the defendants from creating any encumbrance over any portion of the suit schedule property.
15. The counsel for the defendants argued that the plaintiff is no way concerned with K.Prabhakar Rao and the plaintiff is claiming the rights on the basis of the alleged un- registered Will dated 5.3.2008, which is not at all in existence. The plaintiff has filed the present suit only with an intention to knock off the properties of said Late K.Prabhakar Rao. The plaintiff is not at all related with K.Prabhakar Rao. Hence, the suit of the plaintiff is not maintainable. Therefore, he prays for dismissal of the suit.
16. The entire claim of the plaintiff is based upon the alleged un-registered Will dated 5.3.2008 executed by K.Prabhakar Rao in favour of plaintiff, Ex.P.1 - Letter allegedly written by defendant No.11 and Ex.P.4 - lawyer's notice allegedly got issued by the defendant No.11 through his counsel to the plaintiff.
17. In order to prove the plaintiff's case, the alleged power of attorney holder Gurudath has been examined as P.W.1 and he reiterated the plaint averments in his examination-in-chief and contended that K.Prabhakar Rao has executed un-registered Will dated 5.3.2008 in favour of plaintiff. The said Will is deposited with defendant No.11, but the defendant No.11 is not ready to handover the same to the plaintiff by receiving Rs.31,000/-. Hence, he prays for decreeing the suit.
18. Though P.W.1 deposed in his examination-in- chief that K.Prabhakar Rao has executed an un-registered Will on 5.3.2008, but in his cross-examination at page No.12 clearly deposed that, neither himself nor his wife have verified the documents in respect of property situated at B.S.K. II Stage. P.W.1 further deposed at page No.15 that himself and his wife have visited the suit schedule property and requested the defendants for delivery of Will executed by said K.Prabhakar Rao and in his cross- examination at page No.13 deposed that he saw defendant No. 10 - Shivakumar, but he failed to identify defendant No.10 who was present before the Court. If at all P.W.1 had visited the house of the defendants and if he and his wife had made any request to the defendants No.10 and 11, he can easily identify defendant No.10. But, he failed to identify defendant No.10 who was very well present before the Court on 16.6.2012, which clearly goes to show that P.W.1 deposing falsely.
19. In order to prove the case of the plaintiff either she has to examine herself or she may authorise any person to depose on her behalf. But, in this case, neither plaintiff nor her authorised agent have stepped into witness box. Though, P.W.1 deposed that he is deposing on behalf of plaintiff as a power of attorney holder, but he has not at all produced any power of attorney allegedly executed by the plaintiff. P.W.1 deposed without any authorization. Hence, his evidence is not at all admissible one. The plaintiff also not stepped into the witness box. The non-stepping of the plaintiff into the witness box is fatal to the plaintiff's case. Hence, in this case there is no evidence on behalf of plaintiff.
20. Though the plaintiff in her plaint contended that, she is relative of said K.Prabhakar Rao, but has failed to produce any documents to show that she is relative of the said K.Prabhakar Rao. Besides, plaintiff contended that said K.Prabhakar Rao has executed an unregistered Will in her favour on 5.3.2008, but the plaintiff has failed to produce copy of the said Will. Another contention of the plaintiff is that, said K.Prabhakar Rao has executed a Will on 5.3.2008 in her favour and same was deposited with the defendant No.11, during the lifetime of K.Prabhakar Rao has availed a loan of Rs.31,000/- from defendant No.11. In the said Will he has directed plaintiff to pay the said Rs.31,000/- to his brother and get back the original Will and other title deeds in respect of the suit schedule property which are lying with the defendant No.11. Therefore, after the death of said K.Prabhakar Rao the defendant No.11 has wrote a letter as per Ex.P.1 to the plaintiff calling upon the plaintiff to pay Rs.31,000/- and to receive the said Will executed by the said K.Prabhakar Rao and even the defendant No.11 has got issued a lawyer's notice as per Ex.P.4, but, the defendants have denied both Ex.P.1 - Letter as well as Ex.P.4 - lawyer's notice. In order to ascertain the truth as per the request of the plaintiff, Ex.P.1 as well as the admitted signatures of defendant No.11 were sent to forensic laboratory for scientific analysis. Accordingly, the Truth Lab, Bengaluru has submitted its report as per Ex.C.1. The plaintiff has objected for the said report. Accordingly, as per the request of the plaintiff, witness summons was issued to the Director of Truth Lab, Bengaluru who has examined the questioned document i.e., Ex.P.1 as well as admitted signatures of the defendant No.11. The said Director Shankarappa i.e., C.W.1 clearly deposed that, the signature mentioned in questioned document i.e., Ex.P.1 does not tally with the admitted signatures of defendant No.11. In Ex.C.1 it is clearly mentioned that, "The person who wrote standard signatures marked as S.1 to S.10 did not write the questioned signature marked Q." S.1 to S.10 are the admitted signatures and Q is the disputed signature of defendant No.11. On perusal of the evidence of C.W.1 as well as Truth Lab Report - Ex.C.1 clearly goes to show that, the defendant No.11 has not at all written Ex.P.1 - Letter.
21. In order to prove that defendant No.11 has got issued lawyer's notice as per Ex.P.4, the plaintiff has failed to examine the said Lawyer i.e., Dr.S.Vijayakumar, resident of Bengaluru. The non-examination of material witness is fatal to the case of the plaintiff. Hence, as per Section 114
(g) of the Indian Evidence Act, an adverse inference is drawn against the plaintiff for non-examination of said lawyer.
22. It is well settled law that, one who alleges the existence of certain things, he/she has to prove such things. But, in this case plaintiff pleaded that, K.Prabhakar Rao has executed a Will on 5.3.2008 in her favour, but she has not at all produced any document to show that said K.Prabhakar Rao has executed a Will in her favour.
23. The plaintiff has produced Ex.P.2 - Complaint lodged against defendant No.11, in which at page No.2 it is mentioned that the copy of the Will dated 5.3.2008 executed by K.Prabhakar Rao has been annexed. If at all the plaintiff is having the copy of the Will, she can very well produce the same before the Court, but the plaintiff has utterly failed to produce the copy of the said Will. There is no document to show that the said K.Prabhakar Rao has executed Will in favour of plaintiff.
24. In order to establish the defence the defendant No.11 examined himself as D.W.1, but before cross- examination he died, hence, evidence of D.W.1 was expunged. Subsequently the defendant No.10 examined as D.W.2. D.W.2 clearly deposed that plaintiff is no way concerned with the said K.Prabhakar Rao and during his lifetime he not at all executed any Will either in favour of plaintiff or anybody else, even D.W.2 denied Exs.P.1 and P.4. In order to establish the case of the plaintiff, the counsel for the plaintiff cross-examined D.W.2 in full length, but nothing worth has been elicited from the mouth of D.W.2. In the cross-examination of D.W.2 at page No.9 the counsel for plaintiff specifically put a question that, "that the Prabhakar Rao had not made any documents in respect of bequeathing his moveable and immoveable property in favour of anybody", which clearly goes to show that the said K.Prabhakar Rao has not at all executed any Will either in favour of plaintiff or anybody else. The plaintiff herself admitted that said K.Prabhakar Rao has not at all executed any Will. As per Section 58 of the Indian Evidence Act, admitted facts need not be proved. Hence, it is clear that K.Prabhakar Rao has not at all executed any Will.
25. Besides, there is no document to show that the defendants are making an attempt to create an encumbrance over the suit schedule property. The plaintiff has filed the present suit on imaginary cause of action without any lawful cause only with an intention to gain the property by unlawful means, which is not permissible under law and hence, the suit of the plaintiff itself is not maintainable. Injunction is an equitable relief and it is settled law that equity acts in personam, therefore injunction is a personal matter. The purpose of mandatory injunction is to restore a wrongful state of things to their former rightful order, but in this plaintiff has utterly failed to establish her case. Accordingly, I answer Additional Issues No.1 to 3 in the negative and Additional Issue No.5 in the affirmative.
26. Issue No.3 and Additional Issue No.4 : -
As the plaintiff has utterly failed to prove that the said K.Prabhakar Rao has executed a Will in her favour, hence, the plaintiff is not at all entitled for any relief as sought.
Hence, I answer Issue No.3 and Additional Issue No.4 in negative.
27. Issue No.4 :- For the foregoing reasons I proceed to pass the following:
ORDER Suit filed by the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 2nd day of April, 2019.) (KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : Gurudat
2. List of documents exhibited for plaintiff:
Ex.P.1 : Letter written by K.Nagarajarao Ex.P.2 : Police Complaint.
Ex.P.3 : Postal Receipt
Ex.P.4 : Notice given by Shivakumar.
Ex.P.5 : Postal cover
Ex.P.6 : Report of laboratory given by
Abhaya hospital.
Ex.P.7 : Report by Scan Centre.
3. List of witnesses examined for the defendants :
D.W.1 : K.Nagaraja Rao.
D.W.2 : Shivakumar K.O.
4. List of documents exhibited by the defendants:-
Ex.D.1 C/c of the plaint in O.S.26302/08 Ex.D.2 C/c of the written statement in O.S.26302/2008 Ex.D.3 C/c of IA U/o 39 R 1 and 2 of CPC in the said OS. Along with affidavit.
Ex.D.4 C/c of objection to IA No.1 filed by
defendant No.1
Ex.D.5 C/c of order passed on IA.No.1 in the
said suit dated 1/1/2009
Ex.D.6 C/c of orders in the said suit
Ex.D.7 Genealogical tree of defendant
Ex.D.8 Copy of complaint to Banashankari PS
Ex.D.9 to 15 7 share certificates in the name of my late uncle by name K.Prabhakar Ex.D.16 Another share certificate IFCI Ltd Ex.D.17 Another share certificate of SBI Ex.D.18 Another share certificate from Gammon India Ltd., Ex.D.19 Accounts statement of Prabhakar in 5 pages Ex.D.20 Deposit certificate in GNSL ltd Ex.D.21 C/c of Certificate issued by Vijaya Bank Ex.D.22 Another certificate issued OBC Ex.D.23 Certificate issued by Syndicate Bank Ex.D.24 Another certificate of Indian bank Ex.D.25 Original pass book of UCO bank Ex.D.26 Original pass book of Syndicate bank Ex.D.27 Original pass book of Maharastra bank Ex.D.28 Original pass book of Vijaya bank (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City. ***