Bangalore District Court
Gayathri Chittiappa vs Sujatha Chittiappa on 22 April, 2015
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, BANGALORE.
Title sheet for
Judgment in suits
(R.P.91)
Present: Sri. A.S.SADALAGE, B.A.,LL.B.(Spl),
(Name of the presiding judge)
Original suit No.25391/2008
(CCCH-29)
Plaintiff: - Gayathri Chittiappa, d/o.Maneyapanda Harish
Chittiappa, aged 36 years, r/at Flat No.4, # 36, Parliament Street,
Liverpool L8 1TE, United Kingdom, rep. by her mother and duly
constituted Attorney Dr.Cavery Bopaiah, 155, Suryamukhi, Garden
Apartments, No.21, Vittal Mallya Road, Bangalore 560 001.
(By Pleader Sri.K.T.Sebastain & Co.)
V/s.
Defendant: - Sujatha Chittiappa, w/o.late M.Harish Chittiappa,
aged about 46 years, r/at.Trupti, 122/2, Varthur Road,
Nagavarpalya, Bangalore 5600 093.
(By pleader Sri.NAK)
Date of Institution of the suit 28.2.2008
Nature of the (Suit or pro-note, suit for Partition &
declaration and possession, suit for separate
injunction, etc.) possession.
Date of the commencement of recording of 13.10.2014
the Evidence
Date on which the Judgment was pronounced 22.4.2015
2 O.S.No.25391/2008
Year/s Month/s Days
Total duration 7 1 24
XXVIII ADDL.CITY CIVIL JUDGE
BANGALORE
3 O.S.No.25391/2008
JUDGMENT
This is a suit for partition and separate possession of plaintiff's 75% share in the suit property and also for declaration to declare that the Will dt.12.6.2006 executed by late Maneyapanda Harish Chittiappa as void and illegal and consequently declaring that the agreement dt.11.8.2006 is void and illegal, also for 75% of the share of the plaintiff left by her father in his name and in joint account with the plaintiff and also to direct the defendant to pay to the plaintiff 50% of the interest and other income accrued on the instruments made from out of the sale proceeds of ancestral properties of the plaintiff and her father from 2.2.98 upto 27.7.2007 and 75% thereof from 27.7.2007 onwards and also directing the defendant to render full and true account and inventory of the income realized by her as profits from 27th July 2007 upto date and awarding the plaintiff her share of the said income from 27.7.2007 upto date and also awarding the plaintiff's future mesne profits with interest at 18% p.a. until actual partition, etc. 4 O.S.No.25391/2008
2. The brief facts of the case of the plaintiff are as under:- The plaintiff and defendant are Hindus, governed by the Hindu Law of Mitakshara. The plaintiff is the daughter of late Maneyapanda Harish Chittiappa. The plaintiff's father inherited ancestral properties known as 'Basavancove and Chenevarkote' estate comprised and forming part of Nokya Village, Ponnampet Nad, Virajpet Taluk, situated at Thithimathi, South Kodagu, Karnataka. The plaintiff's father has also received monies for relinquishing his interest in other ancestral properties being the ancestral residence of the plaintiff's family at Thithimathi, South Kodagu, the said monies shall be treated as ancestral. The plaintiff's father Maneyapanda Harish Chittiappa did not have any substantial personal income and has not acquired any properties out of his own earnings. The plaintiff's father has sold the ancestral properties in Coorg. The plaintiff had also a right in those properties. Hence the plaintiff's father has requested the plaintiff to permit him to sell the property and to deposit an amount of Rs.51 lakhs from out of the sale proceeds in the joint account with the plaintiff. The said amount put into 5 O.S.No.25391/2008 fixed deposits with the Karnataka Bank Ltd. earning interest at 12% p.a. from 2.2.98 to 2.11.2003. The income from the said fixed deposit was to be used by the plaintiff's father for his needs during his lifetime and would come to the plaintiff after his death. The plaintiff has never relinquished her right, title and interest in or to the said ancestral properties or the proceeds thereof and was and is always entitled to the said ancestral properties and to the assets purchased with the proceeds of the sale thereof. The plaintiff further contended that her father divorced her mother on 23.1.1981 and married the present defendant after some years. The plaintiff is the only child of said Maneyapanda Harish Chittiappa. It is further contended that the plaintiff was residing out of India for more than 12 years. In the year 1997 when the plaintiff was residing in USA, her father sent an agreement stating that an amount of Rs.51 lakhs out of the sale proceeds of the sale of the ancestral properties would be kept in fixed deposit jointly with the plaintiff and the interest thereof would accrue to the plaintiff's father. The plaintiff agreed to this since it was her father she was dealing with. She did not ask for any 6 O.S.No.25391/2008 kind of account or settlement since she thought that her father needed the money more than her. She did not really look into the contents of the agreement at the time of signing. It is further contended that due to the fiduciary relationship of the plaintiff's father with her and the influence he had over her, the plaintiff agreed to whatever her father said. The plaintiff's father with a portion of the balance of sale consideration of the said estates purchased the properties bearing No.122/2 and 122/1, New No.60 and 60/1 of Varthur road, Nagavarapalya, Bangalore comprising of a two storied house and a vacant site adjacent thereto, which was bought later, which are more particularly described in the schedule hereto out of the sale proceeds of the said estate, other inherited properties. The said properties though bought out of the proceeds of the sale of ancestral properties, in the sale deed the defendant's name is also shown as co-purchaser, but the defendant has not contributed any amount for the purchase of the properties, the entire sale consideration of the property came out of the proceeds of the sale of the ancestral properties of the plaintiff's father. It is further contended that the plaintiff has 7 O.S.No.25391/2008 been given to understand that her father had on 12.6.2006 allegedly executed a Will bequeathing the suit schedule properties in favour of the defendant including the rest and residue of his estate along with monies, fixed deposits, shares, etc. even though the plaintiff's father had no right to bequeath the entire properties. It is further contended that the said Will purported to be the Will of the deceased is not a genuine document, it does not reflect the wishes of the deceased in the matter of inheritance of the estate. The fact that the said document is not genuine is evident from other surrounding circumstances such as the fact that the same is unregistered and appoints the main beneficiary as the executrix thereof. So the said document has come with suspicious circumstances and it is not genuine. The plaintiff further contended that the relationship between the plaintiff and her deceased father was always cordial. There was no reason for the plaintiff's father to bequeath the entire suit properties to the defendant. The plaintiff's father had no right to transfer or bequeath any properties purchased by him from the sale proceeds of the ancestral properties. It is further contended that the defendant 8 O.S.No.25391/2008 immediately after the death of plaintiff's father procured an agreement from the plaintiff to the effect that Rs.50 lakhs jointly held by the plaintiff's father and the plaintiff, in Government of India 6.5% Savings Bonds held with ICICI bank limited and an amount of Rs.25 lakhs from the huge accrued interest would be paid to the plaintiff even though the plaintiff was entitled to all the properties and other assets acquired by the plaintiff's father from out of the sale of the ancestral properties. The plaintiff's father Maneyapanda Harish Chittiappa died on 27.7.2006 after a long illness. The agreement mentioned above was made within two weeks of the said date ie. on 11.8.2006. The plaintiff was still mentally distraught due to the loss of her father and in an emotionally traumatic period agreed to the above proposal to receive only Rs.25 lakhs from out of the interest accrued on Rs.50 lakhs held in the joint account of the plaintiff's father and the plaintiff. The defendant has paid a sum of Rs.5 lakhs pursuant to the said agreement. Though this arrangement was agreed upon at considerable financial loss, the defendant by her letter dt.29.4.2007 resiled from the above agreement, stating that no 9 O.S.No.25391/2008 further amounts whatsoever would be paid to the plaintiff even in terms of the said agreement, hence the plaintiff has constrained to issue a reply dt.29.6.2007 asking for a statement of accounts of the administration of the estate of her father and for partition of the properties in accordance with law. But the defendant has not chosen to reply. The plaintiff had 50% interest in the said ancestral properties and also a share in the estate of her father purchased out of the ancestral funds. The plaintiff is also entitled to 50% in her father's personal estate, which was not acquired from the proceeds of ancestral properties or the income therefrom. The plaintiff's father was terminally ill and physically and mentally very weak at the time of making the alleged Will. He suffered from the illness that lead to his death and at the time of making the Will was totally dependant on the defendant for his needs and was susceptible to undue influence and pressure. Hence the said Will is not enforceable. So the plaintiff's father died intestate and plaintiff is entitled for a share in the suit properties as prayed. But the defendant has refused to effect partition in the schedule properties, hence the plaintiff is 10 O.S.No.25391/2008 constrained to file this suit, accordingly the plaintiff prayed for a decree.
3. The suit summons was issued to the defendant, the defendant appeared through a counsel and filed the written statement wherein she has denied all the allegations and assertions made in the plaint and contended that at the very outset the plaintiff's claim against defendant is false, vexatious and the plaintiff has deliberately with held some material facts and approached the court with unclean hands. The defendant contended that there was a partition between the plaintiff's father, his brothers, sisters and plaintiff's grandfather in the family properties in the year 1959 and as per the said partition deed the father of the plaintiff who is the husband of defendant was allotted certain coffee and wet lands together with the sheds, buildings and supporting structures located thereon. At the time of the said partition said Harish Chittiappa was a minor and unmarried. The properties allotted to him under partition are his individual and separate properties. It is further contended that Harish Chittiappa inherited some more coffee and wet lands through the Will executed by the father 11 O.S.No.25391/2008 in the year 1973. So the properties acquired by Harish Chittiappa were his individual properties. During the minority of Harish Chittiappa and the initial years of his corporate employment in Mumbai and Bangalore, the administration and management of his properties were undertaken and carried out by his parents. After he resigned from his employment he came to his native place and assumed the administration and management of his properties by himself. Due to some financial constraints he was made to sell his property to discharge his financial obligations. The plaintiff's uncle agreed to purchase the properties. At that time the plaintiff's uncle persuaded the plaintiff's father to obtain the plaintiff's confirmation for the proposed conveyance. At that time the plaintiff was studying in USA and she was unable to be present in India for any confirmation, so the plaintiff has executed a general power of attorney in favour of the plaintiff's father to deal with the properties. So accordingly the plaintiff's father friends along with the PA holders of the plaintiff have executed a sale deed in favour of the plaintiff's uncle and in order to keep a good relationship between the 12 O.S.No.25391/2008 plaintiff and her father, they have decided to keep some amount in the joint account of the plaintiff and her father and accordingly there was an agreement on 18.12.97 and as per the said agreement an amount of Rs.50 lakhs has been kept in the bank in fixed deposit in the joint names of plaintiff and her father and out of the remaining sale proceeds of his properties after discharging his other outstandings, Harish Chittiappa has purchased residential property situated at bearing No.122/1, New No.60, Varthur Road, Nagavarapalya, Bangalore for his personal residence. The said property has been purchased in the joint names of Harish Chittiappa and his wife the present defendant. It is further contended that in the year 2003 a vacant residential site immediately adjacent to the above property was offered for sale to the defendant and her husband. The defendant and her husband were desirous of purchasing the same as it was immediately adjacent to their existing house, but they did not possess sufficient funds to purchase the said property. Hence the defendant and her husband approached Kishin Lalchand Chulani a trusted and close friend for financial assistance to enable them to purchase 13 O.S.No.25391/2008 the said property. The said person agreed to provide as a loan to the defendant and her husband and accordingly he has paid Rs.15 lakhs loan to the defendant and her husband for purchase of the schedule II property. By borrowing said amount the defendant has purchased the property in the name of her husband and herself. The defendant throughout her marital life supplemented her husband finances by her own independent income, she has been an income tax assessee in her own individual right. It is further contended that in the month of January 2006, the defendant's husband was diagnosed of being afflicted with cancer of the lungs and was placed under oncological treatment. During his hospitalization and treatment, Harish Chittiappa desired to draw up a testamentary document, specifying therein the devolution of his properties after his demise in accordance with his personal wishes. With a view to avoid any controversy or dispute regarding his testamentary capacity, said Harish Chittiappa obtained from his physician who was attending on him a certificate to the effect that he is in a sound mind and regarding his testamentary capacity. Accordingly on 14 O.S.No.25391/2008 12.6.2006 Harish Chittiappa has executed a Will bequeathing the suit properties in favour of the defendant and the amount deposited in the bank in favour of the plaintiff, etc. and the said Harish Chittiappa died on 27.7.2006. After his death, at a gathering of the plaintiff's family on 9.8.2006 and in the presence of the plaintiff's two paternal uncles, their wives, the paternal aunt and others, the last Will and testament of Manyapanda Harish Chittiappa was opened and read. Being resentful and unhappy at the bequest made in favour of the defendant, the plaintiff frequently expressed that the terms of her father's will were unfair and inequitable. Not being willing to implement the wishes of her deceased father in letter and spirit, the plaintiff repeatedly sought an alteration in the terms thereof, obviously aimed at obtaining a larger share of her father's properties than what was given to her under the Will. The defendant had nursed her husband through a long and painful illness and had seen her husband waste away and die before her very own eyes. The defendant was understandably in great emotional and mental distress, as a result of the trauma of her husband's illness and her recent 15 O.S.No.25391/2008 widowhood. Being this fact the plaintiff's paternal uncles and their wives repeatedly prevailed upon the defendant to give a go-by to the terms of her husband's Will and to pay to the plaintiff a fixed sum of money, in addition to the bequest under the Will. Under the intense and continuous pressure of her late husband's family which she was unable to withstand, the defendant agreed under great duress to pay to the plaintiff a sum of Rs.25 lakhs which sum was quantified by her late husband's brothers, although this was contrary to the terms of her husband's will. Accordingly on 11.8.2006 an agreement was drawn by the defendants sister-in-law, specifying not only the terms of above payment, but also altering the terms of the deceased Will relating to his mother's jewellery. The defendant was pressurized to sign this agreement, without obtaining any advice thereon of her family or well-wishers. Being unable to withstand such continuous and intense psychological pressure and without the benefit of counsel and advice, the defendant signed the agreement offered to her, in terms whereof she agreed to pay to the plaintiff a total sum of Rs.25 lakhs. The defendant was not possessed with sufficient 16 O.S.No.25391/2008 funds of money to make payment of the sum of Rs.5 lakhs stipulated therein in the agreement. The defendant has obtained transfer of the khatas concerned to the properties in her name after the death of her husband. So as per the Will the defendant is the absolute owner and in possession of the suit properties, the plaintiff has no right, title and interest over it. As the alleged agreement dt.11.8.2006 was against the wishes of defendant's husband and defendant was in a financial crisis, she wrote a letter to the plaintiff stating that the said agreement has been cancelled and requested the plaintiff to refund an amount of Rs.5 lakhs which was paid to her under the said agreement. But the plaintiff has given false reply making certain claims. It is further contended that as the defendant was not possessed with sufficient amounts to repay the loan amount obtained from Kishin Lalchand Chulani she has mortgaged the property to the State Bank of India and borrowed loan and repaid the loan amount taken from Kishin Lalchand Chulani. The plaintiff knowing all these facts has filed a false suit. The court fee paid by the plaintiff is not proper and correct and there is no cause of action for the 17 O.S.No.25391/2008 plaintiff to file the present suit. On all these grounds the defendant prayed for dismissal of the suit.
4. In the light of the rival contentions of both the parties, the following issues have been framed for consideration:-
1) Whether the plaintiff proves that the suit schedule properties are joint family properties?
2) Whether the plaintiff further proves that the Will dt.12.6.2006 executed by her father is null and void?
3) Whether the plaintiff further proves that the agreement dt.11.8.2006 is also null and void?
4) Whether the plaintiff further proves that she is entitled for 75% share in the suit schedule properties along with interest accrued on instruments?
5) Whether the court fee paid is sufficient?
6) What order or decree?
5. The plaintiff to prove her case examined herself as P.W.1 and one witness is examined as P.W.2 and in support of oral evidence got marked 58 documents at Ex.P.1 to P.58, closed her side. The defendant to prove her case examined 18 O.S.No.25391/2008 herself as D.W.1 and 3 witnesses are examined as D.W.2 to D.W.4 and in support of oral evidence got marked 19 documents at Ex.D.1 to D.19, closed her side.
6. I have heard the arguments of both the sides and perused the oral and documents evidence and written arguments and the records.
7. My findings on the above issues are as follows :-
1) In the negative.
2) In the negative.
3) In the negative.
4) In the negative.
5) In the affirmative.
6) As per final order for the following :-
REASONS
8. Issue No.1:- The learned counsel for the plaintiff submitted that the plaintiff's father had inherited the ancestral properties known as 'Basavanacove and Chenevarkote Estate' comprised in and forming part of Nokya village, Ponnampet Nad, Virajpet taluk, situated at Thithimathi, South Kodagu. He has acquired the said property through a registered 19 O.S.No.25391/2008 partition deed which was effected by his father between himself, his wife and his sons and daughters. The plaintiff has produced a copy of the partition deed which is marked as Ex.P.1 which clearly shows that the plaintiff's father had inherited the ancestral properties at Kodagu district. She further submitted that by virtue of Sec.6(a) of Hindu Succession Act, 1956 (Karnataka Amendment Act 1990) the plaintiff became a co-parcener in respect of the ancestral lands inherited by her father Harish Chittiappa from her grandfather. The plaintiff married only in October 2004. So at the time of Karnataka Amendment Act the plaintiff was an unmarried daughter, so she was a co-parcener. She further submitted that the plaintiff's father and the plaintiff represented by her power of attorney have sold the properties situated at Kodagu District in favour of the plaintiff's uncle and his family members through a registered sale deed during the year 1988 and copies of the sale deeds are produced which are marked at Ex.P.2 to P.5 wherein it is clearly stated that the plaintiff and her father constituted a Hindu undivided family. So these documents clearly prove that the properties situated at Kodagu 20 O.S.No.25391/2008 District were the joint family properties of plaintiff and her father. The recitals of the registered partition deed clearly goes to show that the plaintiff's father has acquired the said properties through a partition deed from her grandfather. Under such circumstances, against the terms and conditions & contrary to the recitals of the said document the defendant cannot contend that those properties were the exclusive properties of plaintiff's deceased father. It is further submitted that the plaintiff's father has purchased the suit properties involved in this case out of the sale proceeds ie. the amount received by selling the properties situated at Kodagu, so the suit properties are the joint family properties of the plaintiff and her father. She further submitted that the defendant in the written statement at para 4(xi) as well as in her examination- in-chief clearly admitted that schedule I property has been purchased out of the sale proceeds of the properties in Kodagu. She further contended that out of the sale proceeds of the properties in Kodagu Rs.51 lakhs has been deposited initially in the Karnataka Bank in the joint name of the plaintiff and her father and her father was receiving interest 21 O.S.No.25391/2008 from that deposit amount and out of the interest amount he has purchased the schedule II property, but the sale deeds with respect to both the schedule properties are in the name of her father and the defendant. But as both the properties have been purchased out of the sale proceeds of sale of properties in Kodagu, they are the joint family properties. In support of her contention she relied on decisions reported in AIR 2010 Karnataka 124 (Pushpalatha Vs.Padma), (2013) 9 SCC 419 (Rohit Chauhan Vs. Surinder Singh and others), (2009) 15 SCC 184 (M.Yogendra Vs. Leelamma), (2006) 8 SCC 581 (Sheela Devi Vs.Lal chand and another), (1982) 1 SCC 4 (Gangabai Vs. Chhabubai) and (2013) 4 MLJ 4 (V.Baskaran Vs. Manjula, Varalakshmi). On the other hand, the learned counsel for the defendant submitted that the grandfather of the plaintiff has effected partition in his properties in the year 1959 between himself, his wife and children and as per the said partition the plaintiff's father has acquired the properties at Kodagu District. Those properties were the self acquired properties of the plaintiff's grandfather and as he has effected partition and given share to his sons, the plaintiff's father has 22 O.S.No.25391/2008 become the absolute owner of the said properties. He further submitted that the plaintiff has executed a general power of attorney in favour of her father's friends authorizing them to alienate the said properties and that power of attorney is produced an marked as Ex.D.3 and there is also an agreement between the plaintiff and her father as per Ex.D.4. In these two documents the plaintiff has clearly admitted that her father was the sole owner of the properties situated at Kodagu District. So the plaintiff has failed to prove that the suit properties and the properties situated at Kodagu district were the joint family properties of the plaintiff and her father. He further submitted that the plaintiff's father has purchased the properties described at schedule 1 in the year 1998 in his name and his wife's name the defendant jointly and during the year 2003 the plaintiff's father who is the husband of the defendant and defendant have jointly borrowed a loan of Rs.15 lakhs from one Kishin Lalchand Chulani and purchased the property described at Schedule 2, that sale deed is also in the joint names of plaintiff's father and defendant, so it is clear that the 23 O.S.No.25391/2008 suit properties are not the joint family properties, accordingly he submitted that plaintiff has failed to prove this issue.
9. I have gone through the evidence of P.W.1 who is the plaintiff in this case. In her examination-in-chief by way of affidavit evidence she has re-iterated the plaint averments. The defendant examined herself as D.W.1, in her examination- in-chief by way of affidavit she has deposed as per the contention taken in the written statement. I have carefully perused the documents produced by both the parties. It is an admitted that that the plaintiff is the daughter of Harish Chittiappa. It is also an admitted fact that the plaintiff's father has divorced the plaintiff's mother in the year 1981. It is also an admitted fact that thereafter in the year 1985 the plaintiff's father has married the defendant. So it is clear that the defendant is the step mother of the plaintiff. Ex.P.1 is the CC of the partition deed. On perusal of this document it is clear that the grandfather of the plaintiff has effected a partition in the properties in the year 1959 between himself, his wife and children. The said partition deed is a registered one. On perusal of the recitals it clearly reads that the property is more 24 O.S.No.25391/2008 fully described in the schedules attached to the partition deed, some having fallen to plaintiff's grand father's share as per the partition effected by his father dt.7.3.1930 and some of the properties acquired by the plaintiff's grandfather and some of the properties is acquired from his deceased brother. I have also perused the CC of the sale deeds marked at Ex.P.2 to 5 under which the plaintiff and her father have jointly alienated the properties situated at Kodagu District in favour of the plaintiff's uncle and his family members. The present plaintiff was represented by her general power of attorney in the sale deeds wherein the recitals of the said documents reads that whereas the vendors above named constitute a Hindu undivided family with Mrs.Sujata Chittiappa, wife of the first vendor Mr.M.Harish Chittiappa and the properties described in the schedule below are a portion of the properties that belong to them. The document marked at Ex.P.1 clearly goes to show that the plaintiff's father has inherited the properties which were situated at Kodagu District from his father. The recitals of the sale deeds also goes to show that those properties belonged to the plaintiff's father and plaintiff. 25 O.S.No.25391/2008 Considering the above said documents and the decisions relied upon by the learned counsel for the plaintiff, I am of the opinion, that the properties situated at Kodagu district were the joint family properties of the plaintiff and her father. I have perused the documents produced by the defendant which are marked at Ex.D.3 and D.4. Ex.D.3 is the GPA executed by the plaintiff in favour of Harish J.Padmanabha and R.Premachandran who are the friends of her father authorising them to deal with the properties of Kodagu. Ex.D.4 is the agreement entered between the plaintiff and her father. Nodoubt in these documents it is stated that those properties are the sole properties of the plaintiff's father, but the partition deed marked at Ex.P.1 and the sale deeds marked at Ex.P.2 to 5 clearly proves that the properties situated at Kodagu district were not the exclusive properties of the plaintiff's father, they are the properties of the plaintiff's grandfather. It is the specific case of the plaintiff that out of the proceeds of the sale of the above said properties, her father had purchased suit schedule properties involved in this case. But the sale deeds are in the name of the plaintiff's father and defendant and as 26 O.S.No.25391/2008 the said properties have been purchased out of the proceeds of the sale of joint family properties, the suit properties are also the joint family properties. On perusal of the written statement filed by the defendant as well as the evidence of D.W.1 in the examination-in-chief it is clear that the defendant has admitted that schedule I property has been purchased out of the sale proceeds of properties situated at Kodagu. I have carefully perused the document marked at Ex.D.3 ie. the GPA executed by plaintiff in favour of one Harish J.Padmanabha and Premachandran as well as the agreement entered into between the plaintiff and her father which is marked at Ex.D.4. Both the documents have been executed on 18.12.1997. Admittedly during the year 1997 the plaintiff was studying in USA. It is the contention of the plaintiff that the advocate of her father and defendant has drafted Ex.D.3 and D.4 and her father has sent those documents to her to USA and she has simply put her signature on those documents and the power of attorney has been notarized and she sent the said documents to her father. So it clearly goes to show that the plaintiff has admitted that she has signed on both the 27 O.S.No.25391/2008 documents ie. on Ex.D.3 and D.4. But her contention is that believing her father without going through the contents of the documents she has singed on Ex.D.3 and D.4. Admittedly during that period the plaintiff was studying in USA and she is a well educated lady. Under such circumstances, it is very difficult to believe that without going through the contents of the said documents she has signed on it. During that period the plaintiff's father was residing at Bangalore and plaintiff was residing at USA, so the question of using any influence by her father does not arise. I have carefully gone through the document marked at Ex.D.4. It is an agreement entered between the plaintiff and her father. Clause 1 reads that the parties hereto shall, as soon as is practicable after the sale of the said property but not later than six months therefrom, place a sum of Rs.51,00,000/- from out of the proceeds of such sale in fixed deposit, as enumerated and stipulated hereunder. Clause 2 reads that the aforesaid fixed deposit shall be placed for a period not less than three years, in a nationalized bank, a schedule Bank, a foreign Bank or such other institution or Company as the parties hereto may decide, in the joint names 28 O.S.No.25391/2008 of both the parties hereto. So it is clear that the plaintiff and her father have entered into an agreement to the effect that after selling the properties situated at Kodagu district, an amount of Rs.51 lakhs shall be deposited in the joint names of plaintiff and her father. Admittedly after selling those properties an amount of Rs.51 lakhs has been deposited in the joint name of plaintiff and her father in the Karnataka Bank. The document marked at Ex.P.8 proves the said fact. It is also clear that after the maturity period the said amount has been withdrawn and it has been invested in the joint name of plaintiff and her father in a Government of India 6.5% savings bonds. The document marked at Ex.P.9 clearly proves the said fact and it is not under dispute. Clause 3 of Ex.D.4 reads that the interest accruing and payable on the amount of the aforesaid fixed deposit shall, in its entirety, be taken and utilized solely by the First party for the entire duration of his lifetime. This clearly shows that the interest on the fixed deposit shall be exclusively taken and used by the plaintiff's father. So she has authorized her father to receive the interest and utilize during his lifetime. The Clause 6 of the document 29 O.S.No.25391/2008 Ex.D.4 reads that it is further expressly agreed and distinctly understood by and between the parties hereto that the remaining part of the proceeds from the sale of the said property as hereinabove mentioned shall be taken, used, utilized and/or applied by the First party at his sole and absolute discretion as he deems fit, with no restrictions whatsoever by or from the second party and/or any person or persons claiming through or under or in trust for the second party. Those recitals also clearly goes to show that the plaintiff has authorized her father to use the remaining sale proceeds of the properties of Kodagu district as per his will and wish. So it is clear that the plaintiff has given up her rights in the remaining sale proceeds. Ex.P.10 is the CC of the sale deed under which the schedule I property has been purchased in the name of the plaintiff's father Harish Chittiappa and the defendant during the year 1998. Nodoubt the defendant in the written statement contended that out of the sale proceeds of Kodagu properties, the schedule I property has been purchased. On perusal of the sale deeds Ex.P.2 to P.5 it is clear that the properties situated at Kodagu 30 O.S.No.25391/2008 district were sold for total consideration amount of Rs.60 lakhs and this fact has been admitted by the parties in the evidence. It is an admitted fact that out of that amount initially Rs.51 lakhs has been deposited in Karnataka Bank in the joint names of plaintiff and her father and subsequently Rs.50 lakhs has been invested in the Government of India 6.5% Savings bonds in the joint name of the plaintiff's father and the plaintiff. It is an admitted fact that after the death of plaintiff's father, the plaintiff has taken the entire amount of Rs.50 lakhs. The recitals in Ex.D.4 clearly shows that the plaintiff permitted her father to use the remaining sale proceeds as per his convenience. So it is clear that she has given up her rights in the remaining sale proceeds. Under such circumstances, even though schedule I property has been purchased out of the sale proceeds it cannot be said that it is a joint family property of the plaintiff and her father. It is the further case of plaintiff that her father alone has received the interest of the amount deposited in the joint name and out of that interest amount her father has purchased schedule II property in the joint names of plaintiff's father and defendant. 31 O.S.No.25391/2008 She further contended that her father did not have any independent income of his own. Nodoubt the defendant has not produced any documentary evidence to show that her husband was having independent source of income and she is also having independent source of income. In her oral evidence she deposed that she was carrying on business of selling paper bags and honey and her annual income was around Rs.3-4 lakhs. But except the oral evidence, there are no sufficient material to show that the defendant and her husband were having their independent source of income. The properties of Kodagu were sold during the year 1998. The schedule II property has been purchased in the year 2003. The documentary evidence produced by the plaintiff marked at Ex.P.11 proves the said fact and it is not under dispute. As the plaintiff herself has contended that her father has no independent source of income, under such circumstances, it appears that he might have spent the interest amount for his day-today expenses. It is an admitted fact that the plaintiff's father was suffering from a disease and later it was diagonised as Carcinoma ie. he was suffering from lung cancer and he 32 O.S.No.25391/2008 was admitted in the hospital. Under such circumstances, a portion of interest amount might have been used for medical treatment. It is an admitted fact that the plaintiff's father has received the interest on the deposit amount, but except the oral evidence of P.W.1, there is nothing on record to show that out of the interest amount schedule II property has been purchased. It is the specific case of the defendant that herself and her husband have raised a loan of Rs.15 lakhs from one Kishin Lalchand Chulani and she has purchased the schedule II property and after the death of defendant's husband she has repaid the said loan amount by raising money from the bank by mortgaging the suit schedule properties. The D.W.1 in her evidence deposed accordingly and she has examined the said Kishin Lalchand Chulani as D.W.4. D.W.4 in his evidence deposed that he knew late Harish Chittiappa from his school days, they were the classmates and he also knows the defendant. In the month of February 2003 a property adjacent to Harish Chittiappa bearing No.122/2 was offered for sale for them, but they were not possessing sufficient amount at that time, so he has offered them the required 33 O.S.No.25391/2008 amount as a hand loan to enable them to purchase the suit property, accordingly he had paid Rs.15 lakhs by cheque to them and they have agreed to repay the loan with interest at the rate of 9% p.a. After the death of Harish Chittiappa the defendant has repaid the amount by way of demand drafts. I have gone through the cross-examination of this witness, but nothing has been elicited to disbelieve his version. In support of oral evidence, the defendants have produced the letter marked at Ex.D.5, that letter is written by one Kishin Lalchand Chulani to Harish Chittiappa ie. the father of the plaintiff, the contents goes to show that he had agreed to give a hand loan of Rs.15 lakhs to the defendant and her husband Harish Chittiappa. Nodoubt the defendant admitted that the said letter is in her handwriting. The D.W.4 has clearly stated that as per his dictation to the defendant she has written the letter, he has identified his signature on Ex.D.5 and got it marked as Ex.D.5(a), that letter is dt.9.3.2003. The defendant has also produced the attested copies of the DDs which are marked at Ex.D.14 and 15 as well as the letter written by the defendant to Kishin Lalchand Chulani. The recitals of the said letter as 34 O.S.No.25391/2008 well as the DDs clearly proves that the defendant has repaid the loan amount to D.W.4. The schedule property has been purchased in the year 2003 and the loan transaction is of the year 2003, so it clearly goes to show that the defendant and her husband by borrowing loan from D.W.4 have purchased schedule II property. The plaintiff has failed to prove that out of the interest derived from the fixed deposit amount the schedule II property has been purchased. Under such circumstances, it cannot be said that the suit schedule properties were the joint family properties of the plaintiff and her father. Hence I hold that plaintiff has failed to prove this issue, accordingly I answer Issue no.1 in the negative.
10. Issue No.2 :- It is the contention of the defendant that her husband has executed a Will bequeathing the suit schedule properties in her favour and the fixed deposit amount in favour of the plaintiff and some amount in favour of the son of his male servant, etc. But it is the contention of the plaintiff that the alleged Will marked at Ex.D.2 is not valid, it is void document. The plaintiff's father was not mentally healthy, he was not in a capacity to understand what has been written in 35 O.S.No.25391/2008 the Will. The learned counsel for the plaintiff contended that the schedule properties were purchased from the funds acquired solely from the sale proceeds of ancestral properties, under such circumstances, the plaintiff's father has no right to bequeath the entire properties by way of Will to the exclusion of the plaintiff as per the alleged Will dt.12.6.2006. She further submitted that admittedly the relationship between the plaintiff and her father was very good and cordial. The evidence available on record clearly proves the said fact. It has also come in the evidence that the plaintiff's marriage has been solemnized during the year 2004 and after the marriage the plaintiff's father has given a grand party to celebrate his daughter's wedding at Bangalore by spending huge amount. This aspect goes to show that the relationship between the plaintiff and her father was cordial and there was no any reasons for him not to give the immovable properties to his daughter, the present plaintiff, so the said Will is a suspicious document. She further submitted that the scribe of the alleged Will is the advocate for the defendant. When the plaintiff's father was admitted in the hospital the defendant was looking 36 O.S.No.25391/2008 after him and there is every possibility that the defendant by using influence got prepared the alleged Will through her advocate and might have obtained the signature of the plaintiff's father. She further submitted that admittedly the plaintiff's father was suffering from lung cancer and he was under Chemotherapy treatment. The evidence of D.W.2 in the cross-examination clearly goes to show that if the Chemotherapy treatment is given the patient will loose the memory and he would suffer from fogginess. Under such circumstances, it is very difficult to hold that her father as per his will and wish has executed the alleged Will. She further submitted that the Will is not a registered one, it has also come in the evidence that the brothers of the plaintiff's father were ofently visiting the hospital and they were also taking care of her father, but the deceased father has not told regarding the execution of the Will to his brothers. That aspect also creates a suspicious circumstance. So the alleged Will is not valid and it is a void document. In support of her contention she has relied on the decisions reported in (1990) 3 SCC 364 (Ram Piari Vs. Bhagwant), (1977) 1 SCC 369 (Jaswant Kaur Vs. 37 O.S.No.25391/2008 Smt.Amrit Kaur), AIR 1959 SC 443 (Venkatachala Iyengar Vs. B.N.Thirnmajamma), (2009) 3 SCC 687 (Bharpur Singh Bs. Shamsher Singh) and (2006) 13 SCC 433 (Niranjan Joshi Vs. Mrudula Jyoti Rao). Relying on these decisions she submitted that the alleged Will came under the suspicious circumstances, the defendant has not removed that suspicious circumstances, so it is clear that the said Will is only a void document.
11. I have gone through the evidence of D.W.1 wherein she has clearly stated that her husband has executed the Will dt.12.6.2006 bequeathing his properties as per Ex.D.2. To prove the said Will the defendant has examined the Medical Officer who has attended the deceased Harish Chittiappa. The D.W.2 Dr.Poonam Patil in her evidence deposed that she has been working as a consulting Medical Oncologist in Manipal Hospital, Bangalore since 1999 and she has 16 years experience in the field of Oncology and she has given treatment to hundreds of patients. Late Harish Chittiappa was admitted to Manipal hospital in April 2006 and was diagnosed to have Non small cell lung cancer, stage IIIB. 38 O.S.No.25391/2008 He had undergone chemotherapy and she has given treatment to him in the hospital. She further clearly stated that she was told by Harish Chittiappa that he wanted to execute a Will and sought her advice in that regard. Accordingly she has examined him on 6.6.2006 on a specific request and she was satisfied that Harish Chittiappa was in a sound state of mind and was capable of exercising his own judgment and discretion and he was also capable of taking his own independent decision, accordingly she has issued a certificate. She further deposed that said Harish Chittiappa was again admitted in the hospital as inpatient from 26.6.2006 to 28.6.2006. During that period he informed that he has executed a Will on 12.6.2006, he was in sound state of mind and memory at the said point of time. She further stated that till about 4 days prior to his death ie. till 22nd July, 2006 he was able to speak to people and recognize them. His state of mind was clear and only for a period of 4 days prior to his death he was unable to speak more than a few words and she has identified the certificate issued by her which is marked at Ex.D.6 and got her signature marked at Ex.D.6(a). I have 39 O.S.No.25391/2008 perused the document marked at Ex.D.6 ie. the certificate issued by D.W.2 wherein she has certified that she has been attending upon Mr.Harish Chittiappa from time to time for the past 2 months, she has examined at his specific request today at Manipal hospital and she is satisfied that he is of sound mind to the best of her knowledge, he is fully capable of exercising his own judgment and discretion and capable of taking his own independent decisions. She is given to understand that he is proposing to execute a Will and that he wants this certificate to avoid any future dispute regarding his testamentary capacity. So accordingly she has issued a certificate after satisfying herself about the soundness of his mental health and alertness. Nodoubt in the cross-examination she has stated that she is not qualified as a psychologist or psychiatry and if the Court sends any person who is suffering from mental illness she has no authority to examine him and give report. She has also deposed that on 5.6.2006 chemotherapy treatment was given to the deceased Harish Chittiappa and she also stated that due to chemotherapy treatment the patient will become weak and to some extent it 40 O.S.No.25391/2008 will have an effect on his mind and nerves and he will have confusion and fogginess. But she further deposed that, that is temporary. The chemotherapy treatment was given on 5.6.2006, but the D.w.2 has examined deceased Harish Chittiappa on 6.6.2006 and given a certificate. Admittedly she has given treatment to the deceased Harish Chittiappa, under such circumstances, even though D.W.2 is not a psychiatrist, but she is a competent person to say about the sound state of mind of a patient and her evidence is required to be accepted.
12. The defendant has also examined the scribe as well as the attested witness to the Will marked as Ex.D.2 as D.W.3. The D.W.3 is an advocate S.Nagaraj. In his evidence he deposed that in the middle of April 2006 he met Mr.Harish Chittiappa at his request at Manipal hospital when he was an inpatient in the company of Mr.Harish J.Padmanabha a trusted mutual friend. At the said meeting Mr.Harish Chittiappa expressed his desire to draw up his last Will and testament and requested him to draft the same. Having obtained his instructions as to the devolution of his properties after his demise he prepared a draft of his will in accordance with his 41 O.S.No.25391/2008 personal wishes and delivered the same to him together with a note which he wanted to append to his Will, for his perusal and finalization. Inview of his anxiety to avoid any unseemly controversy after his demise, he advised him to obtain certificate from his attending physician as to his testamentary capacity. He further deposed that about six weeks thereafter Mr.Harish Chittiappa sought to meet him again at which meeting he informed that upon consideration, he required certain changes in the draft and wished to execute his Will without any delay. He also informed that he had obtained from his oncologist the suggested certificate. Accordingly he re-drafted his Will and having ascertained his final approval of the same and the proposed date of execution, engrossed the same for his signature. He further deposed that on 12.6.2006 he met Harish Chittiappa by prior arrangement at his residence in the company of Harish J.Padmanabha, Harish Chittiappa went through his Will in detail and having satisfied himself that it was in accordance with his express personal wishes, signed the same in the presence of both Harish J.Padmanabha and himself. Mr.Harish J.Padmanabha and himself affixed 42 O.S.No.25391/2008 their signatures to the document as attested witnesses. Thereafter Harish Chittiappa placed the same together with the oncologist's certificate, in an envelope which he sealed with his signature. He delivered the envelope to him with express and specific instructions that he should retain the same in his personal custody and produce the same only after his demise. He further deposed that after the demise of Harish Chittiappa at a gathering of his family on 9.8.2006 in the presence of the parties hereto Mr.Chittiappa's two brothers, their wives, his sister, the defendant's brother-in-law, Mr.Harish J.Padmanabha and himself, his last Will and testament was together with the doctor's certificate read out. The originals were delivered to the defendant, the proceedings were recorded on the envelope and signed by all present. A certificate in respect of Savings Bond for a sum of RS.50 lakhs was delivered to the plaintiff by the defendant. The proceedings were also confirmed and circulated to all present by a letter addressed to them by him. I have gone through the cross-examination of D.W.3, nodoubt he deposed that since 30 years he knows the defendant and there is a cordial 43 O.S.No.25391/2008 relationship between his family and the defendant's family and he knows Harish Chittiappa since beginning and Harish Chittiappa as well as the defendant used to have his legal advice. But that itself is not a ground to discard the evidence of D.W.3. The D.W.3 is a scribe as well as an attesting witness to the Will marked at Ex.D.2. He clearly deposed that as per the instructions given by Harish Chittiappa he has drafted the Will and in his presence as well as in the presence of other attested witness, deceased Harish Chittiappa has read over the contents of the Will and then put his signature in their presence and then he has signed as attesting witness. The evidence of D.W.2 clearly shows that at the time of execution of the Will Harish Chittiappa was in a sound mind and he was in a capacity to understand what he is doing. The evidence of D.W.3 clearly proves that as per the instructions of Harish Chittiappa he has drafted the Will and after going through the contents of the Will Harish Chittiappa signed in their presence. I have carefully gone through the cross-examination of P.W.1. Ex.D.1 cover and Ex.D.2 Will has been got marked by the defendant's counsel by confronting the P.W.1. In her 44 O.S.No.25391/2008 cross-examination she has clearly stated that ¤±Á£É r 2gÀ ªÉÄÃ¯É ºÀjñï eÉ ¥ÀzÀä£Á§ ªÀÄvÀÄÛ £ÁUÀgÁdÄ ªÀQîgÀÄ ¸ÁQëzÁgÀgÁV ¸À» ªÀiÁrgÀĪÀÅzÀÄ £À£U À É UÉÆwÛzÉ. She further stated that the contents of the Will which is marked at Ex.D.2 were read over in her presence and the cover which is marked at Ex.D.1 has been brought by D.W.3 Nagaraj, advocate. She further deposed that Dr.Poonam Patil was giving treatment to her father. She further admitted that she has signed on the cover marked at Ex.D.1. She further admitted that the advocate has written letter to her as per Ex.P.12. I have carefully gone through the document marked as Ex.D.2 the Will dt.12.6.2006. Nodoubt it is an unregistered Will, but that is not a ground to say that it is one of the suspicious circumstances to say whether the Will is genuine or not. On going through the recitals of Ex.D.2 it is clear that Harish Chittiappa has appointed his wife ie. the present defendant as the sole executrix to his last Will and under the said Will he has bequeathed both the suit properties in favour of the defendant and he has bequeathed Rs.50 lakhs amount which was invested in Government of India 6.5% Savings bond in the joint name of himself and his daughter in 45 O.S.No.25391/2008 favour of the present plaintiff. Under such circumstances, it cannot be said that no property has been bequeathed in favour of the plaintiff. Rs.50 lakhs which was standing in the joint name of the plaintiff and her father has been bequeathed to the plaintiff, the plaintiff admitted that after maturity of the bond she has taken the said amount. The said Will also discloses that the deceased bequeathed Rs.2,66,665/- in favour of one Yuvarajan, who is the son of personal maid servant Satyakumar and he has bequeathed the Cockswell & Harrison 12 bore shotgun in favour of the son of his brother and he has also bequeathed Pichaykatthi to the another son of his brother. If the entire property including the amount has been bequeathed only in favour of the defendant, then some suspicion would have arisen, but under the Will Rs.50 lakhs has been bequeathed in favour of the plaintiff. Under such circumstances, it cannot be said that the said Will is null and void. Ex.D.1 is the cover under which the said Will was kept and handed over to D.W.3. It has come in the evidence that on 9.8.2006 in the presence of the plaintiff, defendant and other family members the cover was opened and the contents 46 O.S.No.25391/2008 of the Will has been read over to all the concerned. The plaintiff has clearly admitted the said fact. So it is clear that on 9.8.2006 itself the plaintiff came to know about the Will marked at Ex.D.2. If really it is created or null and void document, the plaintiff could have filed this suit immediately, but she kept quiet for 2 years and then filed this present case. That aspect also goes to show that the said Will is genuine. Nodoubt the deceased has not stated regarding the execution of the Will to his brothers, but that is not a ground to say that the said document is not genuine.
13. The P.W.2 who is the uncle of the plaintiff in his evidence deposed that he has made the payment towards the hospital bill of his brother to the extent of Rs.6,75,000/- and he has got marked the said bill at Ex.P.39 to 52. He further deposed that the Will of his late brother came to light only after his death when his lawyer one Mr.Nagaraj informed him that his brother had left behind a Will bequeathing his estate. He further deposed that the contents of the Will were read over to their family members at his house on 9.8.2006 by himself and they were surprised that the Will is one sided. 47 O.S.No.25391/2008 Keeping in mind the interests of the plaintiff and the defendant in particular and the family at large, he suggested that an agreement be drawn up between the parties whereby the defendant would pay Rs.25 lakhs to the plaintiff to balance the contents of the Will and Rs.5 lakhs has been paid by the defendant to the plaintiff on 11.8.2006 and the agreement has been entered into between the plaintiff and defendant. On perusal of the evidence of P.W.2 he has not at all stated that the Will is null and void and it is a created document, etc. But it is his evidence that as the Will is one sided he has tried to make an arrangement and accordingly the defendant agreed to pay Rs.25 lakhs to the plaintiff and on 11.8.2006 an agreement was entered into between the plaintiff and defendant and they have signed as the attested witness, on that day the defendant has paid Rs.5 lakhs to the plaintiff. In the cross-examination also he has stated that as the Will is one sided he has prepared an agreement and obtained the signature of plaintiff and defendant on 11.8.2006 as per Ex.P.31. The plaintiff has produced the said agreement which is marked at Ex.P.31. I have gone through the said document. The recitals of the said 48 O.S.No.25391/2008 document also goes to show that Harish Chittiappa died on 27.7.2006 leaving behind the Will dt.12.6.2006. The plaintiff admitted that she has signed on the said document, the defendant has also admitted that she has also signed on the said document. Nodoubt the plaintiff contended that the document marked at Ex.P.31 was executed on 11.8.2006 only after few days after the death of her father, so due to loss of her father and pressure of the family members she has signed on the document. The plaintiff is a well educated lady, she has studied in USA, under such circumstances, it cannot be said that the plaintiff has signed on Ex.P.31 under pressure. Nodoubt Ex.P.32 discloses that the defendant has written a letter on 29.4.2007 to the plaintiff stating that as per the contents of the Will the plaintiff is not entitled for the interest on fixed deposit amount and she is facing financial difficulties and she is unable to pay Rs.20 lakhs to the plaintiff, so she has cancelled the said agreement which is marked at Ex.P.31. But both the parties have admitted the execution of the said document wherein the plaintiff has admitted regarding the Will executed by her father and defendant has agreed to pay 49 O.S.No.25391/2008 additional Rs.25 lakhs to the plaintiff and out of that, on the same day Rs.5 lakhs has been paid and she has agreed to pay the remaining Rs.20 lakhs after sometime on installment basis. It appears that if the defendant had paid the amount of Rs.20 lakhs, the plaintiff would not have filed this suit. As the defendant has refused to pay the balance amount of Rs.20 lakhs the plaintiff has filed the present suit. Considering the evidence of D.W.2, D.W.3 and evidence of P.W.1 in the cross- examination and the document marked at Ex.D.2, it is clear that Harish Chittiappa was in a sound state of mind and he has bequeathed his property as per the Will marked at Ex.D.2. Under such circumstances, it cannot be said that the said Will is null and void. Hence I hold that plaintiff has failed to prove this issue, accordingly I answer Issue No.2 in the negative.
14. Issue No.3 :- The plaintiff further contended that the agreement dt.11.8.2006 is null and void. It is the contention of the plaintiff that her father expired on 27.7.2006 and she was under mental pressure and as per the advice of the family members she has signed on the agreement dt.11.8.2006. The learned counsel for the plaintiff submitted 50 O.S.No.25391/2008 that the plaintiff had not executed the agreement dt.11.8.2006 voluntarily, under the pressure she has signed on it, the defendant has also resiled the said agreement and she has also written a letter to the plaintiff canceling the said agreement, so it is clear that the said agreement is null and void. The P.W.2 who is the uncle of the plaintiff in his examination-in-chief clearly stated that as the Will was one sided and keeping in mind the interest of the plaintiff and defendant in particular and the family interest at large, he suggested that an agreement be drawn up between the parties whereby the defendant would pay the plaintiff a sum of Rs.25 lakhs and to that effect the agreement has been prepared on 11.8.2006 and the defendant has paid Rs.5 lakhs to the plaintiff, plaintiff and the defendant signed and they have all signed on the said document. So it is clear that in the presence of the family members the document marked at Ex.P.31 has come into existence. Under such circumstances, it cannot be said that under pressure the plaintiff has signed on Ex.P.31. As the defendant has written a letter to the plaintiff stating that the said agreement is cancelled, it does not mean that the said document is null and 51 O.S.No.25391/2008 void. Hence I hold that plaintiff has failed to prove this issue, accordingly I answer Issue No.3 in the negative.
15. Issue No.4:- The plaintiff contended that the properties situated at Kodagu district were the joint family properties of herself and her father, they have sold the same and out of the sale proceeds her father has purchased the suit schedule properties in the name of her father and defendant. Her father and herself were entitled to 50% each in the suit properties and after the death of her father in his 50% share again herself and defendant are entitled for 50% each, so she is entitled for 75% share in the suit properties. I have already discussed in the above issues and held that the plaintiff has given up her right over the balance sale proceeds in favour of her father and in that amount her father has purchased the schedule I property and the defendant and her husband have borrowed a loan from D.W.4 and purchased the schedule II property. Under such circumstances, it cannot be said that the suit properties are the joint family properties of the plaintiff and her father. I have already discussed in Issue No.2 and held that the deceased Harish Chittiappa has bequeathed his 52 O.S.No.25391/2008 properties through a Will dt.12.6.2006 and under the said Will both the suit schedule properties were bequeathed in favour of the defendant, so the defendant is the absolute owner of both the properties. Admittedly the plaintiff's father died on 27.7.2006. So he was alive for more than one month after the execution of the Will. On that ground also it cannot be said that the Will is not a valid document. It has come in the evidence that the defendant had mortgaged the schedule properties one in favour of the SBI and another in favour of Corporation bank and borrowed the loan. This fact is not under dispute. It is also an admitted fact that as the defendant has not repaid the loan, the Corporation bank has taken possession of the schedule II property and sold in the auction and recovered its loan amount and out of the remaining sale consideration, Rs.18 lakhs has been paid to the defendant, the defendant has paid that amount to the SBI and discharged the loan and the remaining amount of Rs.73 lakhs and odd has been deposited in the corporation bank and as I have held that the defendant is the absolute owner of the suit schedule properties, the defendant is entitled for that amount. Hence 53 O.S.No.25391/2008 the plaintiff is not entitled for any reliefs. Accordingly I answer this issue in the negative.
16. Issue No.5 :- The plaintiff earlier had filed this suit for partition and the court fee has been paid under Sec.35(2) of K.C.F & S.V.Act. Subsequently she got amended the plaint and sought the relief to declare that the Will as well as the agreement dt.11.8.2006 are void and illegal and after amendment the plaintiff has valued this suit for Rs.1,00,45,539/- and court fee has been paid on the market value of the suit schedule properties. The office has noted that the suit is properly valued and court fee paid is proper and correct. Hence I hold that the court fee paid is sufficient, accordingly I answer this issue in the affirmative.
17. Issue No.6 :- In view of my findings on the above issues, I proceed to pass the following :-
ORDER The suit of the plaintiff is dismissed with costs.
Draw the decree accordingly.54 O.S.No.25391/2008
[Dictated to the Judgment-Writer, computerized transcript thereof corrected, signed and then pronounced by me in the open court on this the 22nd day of April, 2015].
[ A.S.SADALAGE ], XXVIII Addl. City Civil Judge, Mayohall, Bangalore.
SCHEDULE Schedule I :- All that piece and parcel of immovable property bearing No.2 (2-C/1) measuring 3372.60 sq.ft. together with a residential building thereon, in plot no.2 of Survey No.142/2 in Benniganahalli village, Bangalore South taluk, currently bearing No.122/2, New No.60, Varthur Road, Nagavarapalya, Bangalore 560 093 bounded on the East by plot No.3B, West by 25 ft.wide road, North by plot No.2B and South by remaining portion of plot No.2C.
Schedule II :- All that piece and parcel of immovable property bearing No.1-2B/1 in property No.142/2, measuring 2600 sq.ft.situated in Benniganahalli village, Bangalore South taluk, currently bearing No.122/1, New No.60/1, Varthur road, Nagavarapalya, Bangalore 560 093, Bangalore and bounded on the East by plot No.3B, West by 25 ft. road, North by plot No.2B/1, and South by plot No.2C/1.
ANNEXURE List of witnesses examined for the plaintiffs :-
P.W.1 : Gayathri Chittiappa.
P.W.2 : Manyapanda Nachaiah Chittiappa.
List of documents marked :-
Ex.P 1 : CC of partition deed.
Ex.P 2 CC of sale deed.
Ex.P 3 CC of sale deed.
55 O.S.No.25391/2008
Ex.P 4 CC of sale deed dt.15.1.98.
Ex.P 5 CC of sale deed dt.15.1.98.
Ex.P 6 CC of release deed dt.22.11.2000.
Ex.P 7 CC of release deed dt.25.8.2004.
Ex.P 8 Letter of Karnataka bank.
Ex.P 9 Certificate of holdings.
Ex.P 10 CC of sale deed.
Ex.P 11 CC of sale deed dt.11.7.2003.
Ex.P 12 Letter dt.10.8.2006.
Ex.P 13 to Photos.
18
Ex.P 19 to Hospital bills in respect of
29 plaintiff's father.
Ex.P 30 Death report.
Ex.P 31 Sale agreement dt.11.8.2006.
Ex.P 32 Letter dt.29.4.2007.
Ex.P 33 Letter dt.29.6.2007.
Ex.P 34 Power of attorney dt.1.6.2012.
Ex.P 35 Application dt.1.6.2012.
Ex.P 36 Letter of corporation bank.
Ex.p 37 RTI application dt.26.9.2012.
Ex.P 38 Letter of corporation bank dt.22.10.2012.
Ex.P 39 CC of statement of hospital bill.
Ex.P 40 CC of hospital bill dt.28.4.06.
Ex.p 41 CC of hospital bill dt.28.6.06.
Ex.P 42 CC of hospital bill
Ex.P 43 CC of hospital bill dt.21.5.06.
Ex.P 44 CC of hospital bill dt.25.5.06.
Ex.P 45 to CC of hospital bills.
49
Ex.P 50 CC of statement of accounts.
Ex.P 51 CC of receipt.
Ex.P 52 CC of statement of Manipal hospital/
Ex.P 53 Receipt dt.21.7.06.
Ex.P 54 Estimate memo.
Ex.P 55 Bills dt.2.8.06.
Ex.P 56 Receipt dt.27.7.06.
Ex.P 57 Receipt dt.27.7.06.
Ex.P 58 CC of bank a/c.extract.
List of witnesses examined for the defendants :- 56 O.S.No.25391/2008
D.W.1 : Sujatha Chittiappa.
D.W.2 : Dr.Poonam Patil.
D.W.3 : S.Nagaraj.
D.W.4 : Kishin L.Chulani.
List of documents marked :-
Ex.D 1 : One big envelope (cover)
Ex.D 1a Signature of P.W.1.
Ex.D 2 Will dt.12.6.2006.
Ex.D 2a Signature of D.W.3
Ex.D 3 General power of attorney.
Ex.D 4 Agreement.
Ex.D 5 Letter dt.9.3.2003.
Ex.D 5a Signature of D.W.4.
Ex.D 6 Certificate.
Ex.D 7 to 10 Discharge summary.
Ex.D 11 Discharge summary (Department of
Cardiology).
Ex.D 12 I.P charge checklist.
Ex.D 13 Bill
Ex.D 14,15 Xerox copies of cheques of SBI.
Ex.D 16 Xerox copy of pass book.
Ex.D 17 Letter dt.4.4.2008.
Ex.D 18 Letter dt.27.8.2006.
Ex.D 19 Letter.
[ A.S.SADALAGE ],
XXVIII ACCJ.
57 O.S.No.25391/2008