Bangalore District Court
Sri. G.R.Balaraj vs Smt. Rajamma on 10 August, 2018
IN THE COURT OF THE PRINCIPAL CITY CIVIL AND SESSIONS
JUDGE, AT BENGALURU
DATED THIS THE 10th DAY OF AUGUST, 2018
PRESENT: SRI. SHIVASHANKAR B. AMARANNAVAR,
B.Com., LL.M.,
Principal City Civil and Sessions Judge,
Bengaluru.
O.S.No.3452/1991
PLAINTIFF : Sri. G.R.Balaraj
S/o. Late. Dr. G.N. Ramachandraiah
Major,
R/at. No.131, 4th Main Road,
9th Cross, Chamarajpet,
Bangalore - 560 018.
[By Sri. K.P. Advocate]
Vs.
DEFENDANTS : 1. Smt. Rajamma
(Since dead deleted and the
Defendants 2 to 10 being the
LRs are already on record.)
2. Smt. G.R. Lakshmikanthamma
Asst. Mistress,
Housing Board Quarters,
Srirangapatna Taluk.
3. Sri. G.R. Shanthamma
Since deceased by her LRs.
3a. Sri. Madhusudana
Aged about 41 years,
S/o. N. Lakshmi Narayana and
Shanthamma.
3b. Smt. Kusuma
Aged about 39 years,
D/o. N. Lakshmi Narayana and
Shanthamma.
2 O.S.3452/1991
Defendants 3(a) and (b) are
R/at. No.36/2, 9th Cross,
Wilson Garden,
Bangalore - 560 027.
4. Smt. G.R. Leelamma
No.5, Annayyappa Galli,
Cottonpet Main Road,
Bangalore - 560 053.
5. Dr. G.R. Shyamalamma
C/o. G.R. Ambuja,
Door No.672/C-24,
9th Cross, 7th Block,
K.R. Road, Jayanagar,
Bangalore - 560 082.
6. G.R. Kodandarama
No.5, Annayappa Galli,
Cottonpet Main Road,
Bangalore - 560 053.
7. G.R. Prameelamma
No.183, Indiranagar I Phase,
N.G.E.F. Quarters,
Indiranagar,
Bangalore - 560 038.
8. G.R. Sathyanarayana
No.5, Annayappa Galli,
Cottonpet Main Road,
Bangalore - 560 053.
9. G.R. Sadananda
Since deceased by his LRS.
9a. Smt. Nagarathna
Aged about 53 years,
W/o. Late. G.R. Sadananda.
9b. Sri. G.S. Ramachandraiah
Aged about 29 years,
S/o. Late. G.R. Sadananda.
9c. Smt. G.S. Navitha
Aged about 23 years,
D/o. late. G.R. Sadananda.
3 O.S.3452/1991
The defendants 9(a) to 9(c)
Are R/at. No.43, 2nd Main,
5th Cross, Rudrappa Garden,
Mysore Road,
Bangalore
And permanently
R/at. No.115, 11th A Cross,
Vittal Nagar,
Near Rajiv Gandhi Sports Complex,
Chamarajpet,
Bangalore - 560 018.
10. G.R. Ambuja
Major,
No.672/C24, 9th Cross,
7th Block, K.R. Road,
Jayanagar,
Bangalore - 560 082.
[D.1 - Sri. PMR Advocate]
[D.2 - Exparte]
[D.3(a)to (c), 4, 5, 10- SGH, Advocate]
[R.6 - Sri. SRR, Advocate]
[R.7 - Sri.VVG Advocate]
[R.8 - Sri. KSM Advocate]
[R.9 - Sri. SKJ Advocate]
Date of Institution of Suit 7.6.1991
Nature of the suit For possession, partition and
separate possession
Date of commencement of 24.06.2004
recording of evidence
Date on which the judgment 18.04.2007
was pronounced
Date of remand of the suit for 12.08.2014
fresh disposal
Date on which the judgment 10.8.2018
was pronounced after the
remand
Total duration 27 years 2 months 2 days
4 O.S.3452/1991
JUDGMENT
This is the suit filed by the plaintiff under Order 8 Rule 1 of CPC seeking the relief of partition and separate possession of his 1/11th share in all the properties described in 'A' and 'B' schedule of the plaint and for enquiry into the future mesne profits and also to declare that the gift deed dated 13.2.1992 is null and void and not binding on the plaintiff.
2. The plaintiff has contended that Late Dr. G.N. Ramachandraiah was a doctor serving in the Government as well as practicing privately. Subsequent to his retirement from service, he practiced privately till his death. He dies on 30.10.1975 leaving behind him, the plaintiff as well as the defendants No.1 to 10 as his legal representatives. The father of the plaintiff died intestate and the plaintiff as well as the defendants 1 to 10 are the class-I heirs of deceased Dr. G.N. Ramachandraiah. The plaintiff has further submitted that the property bearing Khanesumari No.43 situated at Sira Village, described in the Schedule-A hereunder originally belonged to one Sri. S.R. Narayanaswamy, who is the paternal grand father of the plaintiff. In a partition which took place among the father of the plaintiff and his brothers, schedule 'A' property had fallen to the share of the father of the plaintiff. It is further contended by the plaintiff that the Item Nos.1 to 3 of Schedule 'B' property were acquired out of the earnings of the father of 5 O.S.3452/1991 the plaintiff and also the proceeds of the schedule 'A' property, but the same were registered in the name of the defendant No.1 being the mother of the other defendants and the plaintiff as she was looking after the domestic affairs of the entire family. The defendant No.1 had no independent avocation or earnings whatsoever as she was the housewife, looking after the family and entirely depending upon the earnings of her husband and other members of the family. The said properties were acquired in the name of the defendant No.1 by her husband and the father of defendants No.2 to 10 and the plaintiff for the benefit of the plaintiff and the defendants No.2 to 10. Hence, the said properties are available for partition as the defendant No.1 has no independent or absolute right or interest over the same. The father of the plaintiff Dr.G.N.Ramachandraih being in Government service had thought it fit to register the properties in the name of his wife, the defendant No.1 for the benefit and for the sake of their children and to avoid any difference in the family and particulars among the sons.
3. It is further contended by the plaintiff that at the time when item No.2 of the schedule 'B' properties were purchased, it was a vacant site. Since there was shortage of funds, some amount were borrowed from a co-operative society for the purposes of constructing a residential building and for the purpose of discharging the loan, the plaintiff, out of his 6 O.S.3452/1991 earning had contributed monthly a sum of Rs.200/-. It is further contended by the plaintiff that the father of the plaintiff mortgaged the suit schedule 'A' property, situated at Sira having borrowed the loan to put up construction on the suit item II of schedule 'B' property by executing mortgage deed dated 10.12.1969 and also utilized the funds earned by him from his private practice and also his savings and he having retired in the year 1960, received retirement benefit of Rs.11,000/- and out of the said amount and also savings, he paid the sale consideration in respect of suit item No.1 of 'B' schedule property and he got the same registered in the name of defendant No.1 to avoid any disharmony in the family. It is the further case of the plaintiff that the plaintiff stayed along with the defendants 1, 4, 6 and 9 in item no.1 of the 'B' schedule property till the year 1984 and as misunderstanding arose amongst the womenfolk of the family, the plaintiff was compelled to stay separately for the convenience sake. The plaintiff requested and made a demand from the defendants 1 to 10 to effect the partition by metes and bounds of all the suit schedule properties and the defendants 1 to 10 agreed to effect a partition but postponed the same on one pretext or the other. It is the case of the plaintiff that all the suit schedule properties are the sale-acquired properties of the father of the plaintiff and the defendants 1 to 10 have no exclusive right in respect of all 7 O.S.3452/1991 the suit schedule properties. It is the case of the plaintiff that item No.2 of the 'B' schedule property was in the occupation of a tenant and after the tenant vacated the premises it was released from the rent controller on the ground that it is required for the self occupation of the defendant No.8. The defendant No.8 stayed for some time in that property and later on, the same has been let out. The defendant No.1 having no absolute right, title, interest colluded with the defendant No.8 and created a sham document in respect of item No.2 of schedule 'B' property for no consideration. The said transaction which is a created one is not binding on the plaintiff or the other defendants. It is the case of the plaintiff that the suit item 2 of 'B' schedule property, without paying any consideration, the defendant No.8, by playing fraud on the defendant No.1 got created the sale deed on 16.10.1985 without the consent and concurrence of other members of the family as he had taken undue advantage of his residence in the said house. As such, the said sale deed dated 16.10.1985 is a fabricated, concocted and fraudulent document got created by the defendant No.8 and therefore, the same is not binding on the plaintiff. The defendant No.10 herein has creaed a fraudulent gift deed said to have been executed by the defendant No.1 in her favour in respect of schedule item No.III property of 'B' schedule measuring 6 acres 11 guntas in 8 O.S.3452/1991 Sy.No.381/2 situated at Hulikal Village, Kudur Hobli, Magadi Taluk, Bengaluru District during the pendency of the sut as the said gift deed bears the date 13.2.1992. It is the case of the plaintiff that neither the defendant No.1 nor the defendant No.10 resided at Hulikal Village at any point of time and however, the said gift deed shows the residence of the defendant No.1 and defendant No.10 at Hulikal Village and as such the said document is a concocted and fraudulent document and the defendant No.1 never executed any such document in favour of the defendant No.10. The said gift deed being a fraudulent document is liable to be declared as null and void and not binding on the plaintiff.
4. It is the further case of the plaintiff that defendant No.1 died intestate and there is no any testamentary disposition of any of the property and however the defendant No.4 herein making false claim in respect of schedule item No.1 of B property stating that the defendant No.1 bequeathed the same in her favour under the Will dated 29.8.1989. The said registered Will is a concocted and fabricated Will as the defendant No.1 had no intention whatsoever to dispose of the property either by way of Will or gift in favour of any of the persons as she wanted to settle all the properties amongst her children. The defendant No.4 herein having deserted her husband started living with the plaintiff and defendants along 9 O.S.3452/1991 with her child and she continued to reside in the suit item No.1 of 'B' property along with other members of the family and however, the defendant No.8 moved to schedule item No.2 of 'B' property in the year 1974 and the plaintiff moved to separate house in the year 1984. The defendant No.4 being closely associated with the defendant No.1 and having domination over the defendant No.1 and other members of the family got created the Will said to have been executed by the defendant No.1. The defendant No.1 never executed any such Will much less the one referred to by the defendant No.4. The said Will being a concocted and fabricated one has no probative value. With these contentions, the plaintiff is seeking a declaration declaring that he has got 1/11th share in all the suit schedule properties ; to declare that the transaction entered into between the defendants No.1 and 8 in respect of the item No.2 of the schedule 'B' property dated 16.10.1985 said to be a sale deed is null and void and void ab-initio and not binding on the plaintiff ; a direction to the defendants to partition all the suit schedule properties by metes and bounds and to direct an enquiry into the actual mesne profits as contemplated under Order 20 Rule 12 of CPC ; to declare that the gift deed dated 13.2.1992 as null and void and not binding on the plaintiff by allowing the suit.
5. Upon service of suit summons, the defendant No.1 appeared in the Court through her counsel and filed her written 10 O.S.3452/1991 statement. Defendant No.3(a) to (c), defendant Nos.4 to 10 have appeared through their counsel and filed their written statement. Though the defendant No.2 was served with suit summons, she has not appeared before the Court and remained absent and hence placed ex-parte.
6. The defendant No.1 has contended in her written statement that Dr. G.N. Ramachandraiah was in Government Service who passed away on 30.10.1975. She has specifically denied the allegations that the suit schedule properties described in the schedule 'B' at item No.1 and item No.2 are the properties of Dr. Ramachandraiah and further states that these item Nos.1 and 2 property described in the schedule 'B' are the self-acquired properties of the defendant no.1 and therefore the plaintiff has no locus-standi to seek for a right of inheritance. She has further contended that A schedule property was inherited by her husband and the property was not yielding any income and it was in a neglected state on account of various inter-se disputes amongst the members of the family. She has further denied that the schedule 'B' property was purchased from the income derived from the A schedule property. She has further specifically denied that the plaintiff had contributed money towards money towards the construction or towards purchase of the schedule 'B' property. She has further contended that items in schedule 'B' property 11 O.S.3452/1991 were purchased out of her savings, hand loans and by pledging and selling her jewellery and other valuable movable items. It is further contended by the defendant No.1 that the plaintiff has no joint possession as he was ousted from the joint family on account of his indifferent behaviour even during the lifetime of Dr. Ramachandraiah and the plaintiff has no manner of right, title or interest over the schedule property described in the schedule. Defendant No.1 has further contended that the father of the plaintiff had never acquired movables as alleged by the plaintiff, on the other hand, he had contracted liabilities on account of the responsibility of shouldering a huge family wherein even the daughters were forced to take up employment on account of financial constraints. Defendant No.1 has further contended that the plaintiff used to come to her house every now and then in a totally drunken state and was habitually holding threats against her and at times used to break the articles and other items found in the house if his illegal demands are not met by her and even the plaintiff had held threats to murder her. Defendant No.1 has further contended that there is no cause of action for the suit and hence with all these contentions, defendant No.1 has prayed to dismiss the suit.
12 O.S.3452/1991
7. The defendant Nos.3, 4, 5 and 10 have filed their written statement contending that the suit filed by the plaintiff is not maintainable either in law or on facts, the suit is not properly valued, there is no cause of action for filing the above suit, the plaintiff is not in the joint possession of the suit schedule properties with the defendants. It is further contended that the plaint A schedule property is their ancestral property which is a old house and the father of these defendants viz., Dr. G.N. Ramachandraiah was holding the said property and there was no income derived from the A schedule property. The item No.1 of the plaint 'B' schedule property is the self-acquired property of the defendant No.1 i.e., Late. Rajamma as she purchased the same under the registered sale deed dated 9.7.1962 out of her own earnings and out of the amount given to her by her parents. Late. Rajamma had executed a Registered Will dated 29.8.1989 in favour of the defendant No.4. It is further contended by these defendants that the defendant No.4 is in peaceful possession and enjoyment of the said property after the death of Rajamma. The khatha of the said property has been changed in the name of defendant No.4 and she is paying the tax to the said property up to the date. Item No.2 of the 'B' schedule property is also a self-acquired property of Late. Smt. Rajamma as the same was allotted to her from City Improvement Trust Board on 13 O.S.3452/1991 3.10.1966. After allotment C.I.T.B. executed a registered Sale Deed dated 2.1.1969 in favour of Late. Smt. Rajamma. The said property was sold by Late. Smt. Rajamma to defendant No.8 for a valuable sale consideration by way of registered sale deed dated 16.10.1985 and now he has also sold the said property to one Mahaveer K. Ranka.
8. It is further contended by the defendants 3, 4, 5 and 10 that the property bearing Sy. No.366 to an extent of 28 guntas of land at Hulikal Village, Kudur Hobli, Magadi Taluk was purchased by the defendant No.5 i.e., Smt. Dr. G.R. Shyamala by her self-earned money, which was registered in the name of the plaintiff herein. The plaintiff had no income at the said point of time when the property was purchased by the defendant No.5 in the name of the plaintiff. The plaintiff has also promised to return the said property to the defendant No.5 as and when she demands the same. Further, they have contended that the item No.3 of the 'B' schedule property was purchased by the defendant No.5 out of her hard earned money in the name of Late. Smt. Rajamma. Smt. Rajamma bequeathed the said property to the defendant No.10 herein i.e., Smt. Ambuja by way of registered gift deed dated 13.2.1992 with the consent of defendant No.5. From the date of gift deed to till today, the defendant No.10 is in peaceful possession and enjoyment of the said property. The defendant No.10 is paying 14 O.S.3452/1991 the taxes to the said property and the khatha stands in her name. These defendants have further contended that the plaintiff is not in the joint possession of the schedule properties. It is also contended that the above suit has been filed by the plaintiff to harass these defendants and to snatch the property bearing Sy. No.366 to an extent of 28 guntas of land at Hulikal Village, Kudur Hobli, Magadi Taluk from the defendant No.5. It is further contended that all the ornaments were sold by Late. Rajamma during her lifetime. When she died there were no jewels of whatsoever, though she had mentioned about the jewels in the Will. The marriages of plaintiff, defendant No.6 to 10 were performed by defendant No.4 and Rajamma. It is also contended that the suit schedule properties described in the schedule 'B' at item No.1, 2 and item No.3 are the properties of Dr. Ramachandraiah. These defendants have denied that the plaintiff out of his earning had contributed monthly a sum of Rs.200/-.
9. The legal heirs of defendant No.3 viz., defendant Nos.3(a) and 3(b) and defendant No.4, 5 and 10 have taken up their contentions in their counter claim as, the item No.1 of the plaint 'B' schedule property is self-acquired property of the defendant No.1 i.e., Late. Rajamma as she purchased the same under the registered sale deed dated 9.7.1962. The late Rajamma towards the love and affection had executed a 15 O.S.3452/1991 Registered Will dated 29.08.1989 in favour of the defendant No.4 bequeating item No.1 of the plaint 'B' schedule property. After the death of Rajamma, the defendant No.4 is in peaceful possession and enjoyment of the said property. The katha of the said property has been changed in defendant No.4's name and she is paying the tax to the said property up to date. The above defendants have thus prayed to dismiss the suit so far in respect of item No.1, 2 and 3 of 'B' schedule properties and C schedule properties and decree the suit in respect of A schedule property and the counter claim schedule property granting 4/10th share to the defendant Nos.3(a), 3(b), 4, 5 and 10 i.e., one share to defendants 3 (a), 3(b) and one share each to defendants 4, 5 and 10 in the interest of justice and equity.
10. The defendant No.7 has filed her written statement and has admitted that the averments made at para 2 of the plaint are all true and correct. She has further admitted that both items of 'B' schedule properties are self-acquired properties of G.N. Ramachandraiah and also that the father of the plaintiff and defendants 2 to 10 died intestateand the plaintiff is entitled for 1/11th share in the suit schedule properties and this defendant is also entitled to her 1/11th share in the suit schedule properties. She has contended that she has no knowledge about the shortage of funds for constructing a residential building and borrowing some amount 16 O.S.3452/1991 from the co-operative society and plaintiff had contributed Rs.200/- per month for discharging the said loan. Therefore, she has no objection to pass a preliminary decree as prayed for by the plaintiff and to allot 1/11th share to the plaintiff and also in favour of her.
11. The defendant No.8 has filed his written statement admitting the fact that Dr. G.N. Ramachandraiah, the father of this defendant was in the Government service and died on 30.10.1975. He has denied that Late. Dr. G.N. Ramachandraiah left behind the plaint schedule properties in which the plaintiff is entitled for 1/10th share. The defendant No.8 has specifically denied the allegation that the properties described in schedule 'B' to the plaint at item No.1 and item No.2 are the properties of Dr. G.N. Ramachandraiah. Item No.2 property described in the schedule 'B'is the self-acquired property of this defendant and further denied that schedule 'B' property was purchased from the income derived from the A schedule property. He has further contended that suit 'B' schedule item No.2 is owned and possessed solely and absolutely by him and the said property was purchased from defendant No.1 on 17.10.1985 for a valuable consideration. On 19.02.1968 the plaintiff and other defendants have given a declaration stating that they have no right, title and interest over the above said property. The defendant No.8 has produced a copy of the said 17 O.S.3452/1991 declaration as annexure A. Therefore, it is contended that none of the other parties have any right, title or claim or interest in the said property which is also not available for partition. ing that
12. Defendant No.8 has also filed additional written statement contending that as per the Hindu Succession Act, 1956, even if only a life interest has been conferred in accordance it would enlarge into a full estate. Hence the defendant is competent to deal with the house property as she likes and the property in question is the separate property of Smt. Rajamma. The schedule 2(b) property was the absolute property of the defendant No.1. The limited interest or the life estate vested in Smt. Rajamma would blossom into an absolute estate, as per Section 14(1) of the Hindu Succession Act, 1956. The defendant No.1 has absolute rights in the suit schedule 2(b) property to deal with in any manner she deems fir. The property was possessed by Smt. Rajamma and was of her full ownership. The plaintiff's contention that the said property was acquired by Late. Dr.G.N.Ramachandraiah for the benefit of the family is stoutly denied. The suit filed by the plaintiff is hopelessly barred by limitation since the plaintiff had the knowledge of the sale of the property in favour of this defendant way back in the year 1985 and the suit is admittedly filed on 7.6.1991. It is further contended by the defendant No.8 that he 18 O.S.3452/1991 was in possession of the property and later put up constructions at his cost investing his hard earned money and also cleared a loan taken on the property by Smt. Rajamma and also cleared the loan he had taken to put up construction on the suit schedule item No.2 of B. The khatha also stood exclusively in the name of this defendant. It is further contended that Dr.G.N.Ramachandraiah had purchased a fertile agricultural land in the name of the plaintiff, when he was not even earning. The plaintiff ought to have disclosed and put this property in the hotchpotch along with Schedule 'A' property and sought for an equitable partition along Schedule 'A' property. The plaintiff not having brought in Agricultural land bearing Sy.No.366 of Magadi Village, Kudur Hobli, Hulikal Grama, entire joint family properties have not been brought into the common hotchpotch. It is further contended by the defendant No.8 that the said properties were absolute properties of the defendant No.1 and the sale deed, gift deed and the testamentary document under which she has transferred the properties are binding and valid documents and plaintiff cannot contend such transfers made by here are invalid or void. Defendant No.8 has further contended that he had let it out and was collecting the rent which has never been objected by the plaintiff or any of the defendants. This fortifies the fact that he has purchased the said property for valuable 19 O.S.3452/1991 consideration. It is further contended that the sale deed dated 16.10.1985 under which the property has been conveyed is a valid document and for valuable consideration and therefore, the plaintiff is not entitled to any of the prayer claimed.
13. After the defendant Nos.1 and 7 filed their written statement, issues were framed on 4.7.1996. After the defendant No.8 filed his written statement, one additional issue came to be framed. Issues were further recasted on 5.4.2016 and on 2.7.2018 During the trial, the plaintiff tendered his evidence by way of affidavit which was accepted as evidence of PW.1 and he was cross-examined. The defendant Nos.2, 6 and 9 tendered their evidence on behalf of the plaintiff by way of affidavit and they were accepted as evidence of P.Ws.2 to 4 and they were cross-examined on behalf of the other defendants. Thus, the defendants 2, 6 and 9 though have not filed written statement supported the case of the plaintiff during the trial. The plaintiff got marked Exs.P.1 to P.14. On the other hand, the defendant No.8 tendered his evidence by way of affidavit, which was accepted as evidence of DW.1 and defendant No.10 tendered her evidence by way of affidavit, which was accepted as evidence of DW.2. Both of them were cross-examined at length by the learned counsel for the plaintiff. On behalf of the defendants Exs.D.1 to 67 were marked.
20 O.S.3452/1991
14. After hearing the arguments of the learned counsel appearing for both the sides, this court has passed its Judgment on 18.04.2007 partially decreeing the suit by granting 1/10th share to the plaintiff and held that in view of the sale deed executed by the defendant No.1 in favour of defendant No.8 in respect of item No.2 of the plaint 'B' schedule, the defendant No.8 became the absolute owner of the said property. Aggrieved by the judgment and preliminary decree passed in O.S.No.3452/1991, the plaintiff and defendant No.4 have challenged the said judgment in RFA No.1651/2007 and RFA No.1850/2007 respectively. After hearing the matter, the Hon'ble High Court has observed at para No.16 thus;
"The Trial court has rejected the written statements filed by defendant Nos.3, 4, 5 and 10 on the ground that the same was filed at a belated stage. Considering the complications in these appeals, as proper pleadings were not available to consider the case of all the parties and as proper issues were also not framed, this court is of the opinion that the matter requires to be reconsidered by the Court below afresh by giving reasonable opportunity for all the parties.
It is further observed in para No.17 that;
In addition to that, defendant No.8 has claimed suit item No.2 of 'B' schedule property as his self-acquired property having purchased the same from first 21 O.S.3452/1991 defendant. Though the sale deed is challenged by the plaintiff as a sham document, no issue has also been framed by the court below on this."
With this and also with the consent of all the learned counsel for the parties, the judgment and decree dated 18.4.2007 in O.S.No.3452/1991 has been set aside and the matter has been remanded to the trial court for fresh consideration in accordance with the law with a direction to grant reasonable time for all the parties to amend their pleadings and based on the same, additional issues or fresh issues shall be framed and thereafter the to proceed with the trial and the entire process shall complete within 9 months from the date of the appearance.
15. After the remand, this court has received the records from the Hon'ble High Court of Karnataka on 7.10.2014. The plaint was amended and the LRs of deceased defendant No.3 came on record as defendant No.3(a) and 3(b), the LRs of deceased defendant No.9 also came on record as defendant Nos.9(a), 9(b) and 9(c). Thereafter, this court has framed fresh issues on 5.4.2016.
16. Thereafter, PW.1 has filed his affidavit and was further examined-in-chief and he was also cross-examined by the advocate for defendant No.8 and also cross-examined by the 22 O.S.3452/1991 advocate for defendant Nos.2, 4, 7 and 10. PW.1 was also cross-examined by the advocate for the defendant Nos.3 to 5 and 10 and was further recalled and cross-examined by the advocate for the defendant No.8 on 21.04.2017 and 30.8.2017. PW.1 was further recalled by order dated 28.5.2018 and was further examined-in-chief to produce the documents marked at Ex.P.15 to 17. This witness was cross-examined by the advocate for defendant No.3 to 5 and 10 and also by the advocate for defendant No.8 on 4.6.2018.
17. DW.1 who is defendant No.8 was further examined- in-chief on 19.04.2018. This witness was recalled by order dated 28.5.2018 for further examination-in-chief and has produced the documents which are marked as Ex.D.73 to 76. DW.1 was further cross-examined by the advocate for the plaintiff on 5.6.2018.
18. On 9.1.2018 DW.3 who is defendant No.5 has filed her affidavit in lieu- of examination-in-chief and on 24.01.2018 she has produced the documents which are marked as Ex.D.68 to 71. DW.3 was recalled for the purpose of further cross- examination by the advocate for the plaintiff on 23.2.2008, 28.2.2018 and closed their side.
19. DW.4 has tendered his evidence affidavit on 19.3.2018 and was examined in-chief. DW.4 was further 23 O.S.3452/1991 examined-in-chief on 19.3.2018 to identify his signature on Ex.D.3 marked as Ex.D.3(a) and also to identify the signatures of Rajamma as Ex.D.3(b) to (f). DW.4 was further cross- examined by the advocate for the plaintiff on 24.03.2018.
20. At the time of hearing arguments, it is noticed that fresh issues framed on 5.4.2016 are not proper. With the consent of counsels on record, the issues were recasted, which are as under;
ISSUES (RE-CASTED)
1. Whether the plaintiff proves that item No.1 to 3 of plaint 'B' schedule properties were acquired by his father Dr. G.N. Ramachandraiah benami in the name of his wife namely defendant No.1 ?
2. Whether the defendant No.4 proves that Rajamma (defendant No.1) executed registered WILL dt.29.8.1989 in her favour bequeathing item No.1 of schedule 'B' property ?
3. Whether defendant No.8 proves that item No.2 of 'B' schedule property was the absolute property of the first defendant and he purchased the same under the sale deed dt.17.10.1985 by paying valid consideration ?
4. Whether defendant No.10 proves that Rajamma executed Gift Deed dt.13.2.1992 gifting item No.3 of schedule 'B' property in her favour ?
24 O.S.3452/1991
5. Whether defendant No.5 proves that she has purchased out of her self earned money, the property bearing No.366 measuring 28 guntas at Hulikal Village, Magadi Taluk in the name of plaintiff ?
6. Whether the plaintiff is entitled to share in suit schedule properties ? If so, how much ?
7. What Order or Decree ?
21. Both side advocates submit no further evidence on issues (recasted). Heard the arguments on both sides. My answers the above issues are as under;
Issue No.1:- In the negative.
Issue No.2:- In the affirmative.
Issue No.3:- In the affirmative Issue No.4:- In the affirmative.
Issue No.5:- In the negative Issue No.6:-The plaintiff is entitled to 1/10th share in schedule 'A' property .
Issue No.7: As per final order, for the following:
REASONS
22. Issue No.1:- According to the plaintiff item Nos.1 and 2 of plaint 'B' schedule were acquired out of the profit earned from 'A' schedule property and also from the savings and earnings made by his father Dr.G.N.Ramachandraiah. However, the defendant No.1 in her written statement has denied this case of the plaintiff and has contended that item 25 O.S.3452/1991 Nos.1 and 2 of plaint 'B' schedule are her self acquired and separate properties. There is no dispute that the husband of defendant No.1 and father of plaintiff as well as defendant Nos.2 to 10 was a Doctor by profession and he was in Government service. As noticed earlier initially the plaintiff did not plead that "B" schedule properties were acquired by his father benami in the name of defendant No.1. However by way of amendment he contended that item Nos. 1 to 3 of "B" schedule were acquired by his father benami in the name of defendant No.1, and such acquisitions were for the benefit of all the children. From this, it is clear that the title deeds in respect of item Nos.1 to 3 of the plaint 'B' schedule stand in the name of first defendant. The copies of the sale deeds in respect of item Nos.1 to 3 of plaint 'B' schedule have been produced by plaintiff and are marked in evidence. Ex.P.4 is the certified copy of the sale deed dated 2.1.1969 executed by the CITB, Bangalore in favour of defendant No.1 in respect of item No.2 of plaint 'B' schedule. Ex.P.5 is the certified copy of the sale deed dated 9.7.1962 executed by one Anusuyamma in favour of defendant No.1 in respect of item No.1 of plaint 'B' schedule. Ex.P.8(a) is the certified copy of the sale deed dated 6.6.1975 executed by one Smt. Gangamma in favour of first defendant in respect of portion of item No.3 of the plaint 'B' schedule i.e., with regard to the extent of 4.00 acres. Ex.D.66 is the original sale deed of 26 O.S.3452/1991 Ex.P.8(a) i.e., in respect of purchase of 4.00 acres of land in item No.1 of plaint 'B' schedule. Ex.D.67 is the original sale deed dated 6.1.1979 executed by Smt. Gangamma in favour of first defendant in respect of remaining 2.00 acres of land in item No.3 of plaint 'B' schedule. Thus, from the documentary evidence it is clear that the sale deeds under which item Nos.1 to 3 of the plaint 'B' schedule were acquired stand in the name of first defendant. The recitals in all these sale deeds clearly indicate that the sale considerations have been paid by the purchaser. In the case of Valliammal (deceased by L.Rs.) -Vs- Subramaniam and others, reported in 2004 AIR SCW 4948, relied upon by the learned counsel for the plaintiff the Hon'ble Supreme Court has stated thus:
"There is a presumption in law that the person who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami holder".
Again in para-16 their Lordships have stated thus:
"In law title to the property vests in the person in whose favour the sale deed has been executed".27 O.S.3452/1991
Thus, from the above principles laid down by the Hon'ble Supreme Court it is clear that the initial presumption under law is that the person whose name appears in the document is the real owner and the title to the property vests in such person unless that presumption is displaced by the person who alleges that the person whose name appears in the document is not the real owner, but only benami. In such cases, the heavy burden lies on such person who pleads that the recorded owner is not the real owner, but he is only benami. Of course, the provisions of Benami Transactions (Prohibition) Act, 1988 prohibits any benami transaction. According to sub-section (1) of Section 3 no person shall enter into any benami transaction. However, sub-section (2) of Section 3 of this Act makes exception in the case of purchase of property by any person in the name of his wife or unmarried daughter. In other words, the purchase of any property by a person in the name of his wife or unmarried daughter is permitted and it is outside the bar created by the Act. However, though such purchase in the name of wife or unmarried daughter is kept outside the prohibition contained in sub-section (1), as per clause (a) of sub-section (2) if such transaction takes place it should be presumed that the property has been purchased either for the benefit of the wife or unmarried daughter, as the case may be, unless the contrary is proved. In other words, the reading of sub-sections (1) and (2) of 28 O.S.3452/1991 Section 3 as a whole makes it clear that though benami transaction is prohibited, purchase of property by a person in the name of his wife or unmarried daughter is permitted. In the event of such transaction, it should be presumed that the property so purchased is for the benefit of wife or unmarried, as the case may be, unless the contrary is proved. The contrary to be proved as stated in clause (a) of sub-section (2) would be that the property purchased was not for the benefit of the wife or unmarried daughter, as the case may be, but for the benefit of the acquirer. According to sub-sections (1) and (2) of Section 4 of this Act, no suit or claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property and no defence based on such right shall be allowed in any suit, claim or action by or on behalf of the person claiming to be the real owner of such property. However, the Hon'ble Supreme Court in the case of Nand Kishore Mehra Vs Sushila Mehra, reported in AIR 1995 SUPREME COURT 2145 had an occasion to consider as to whether the prohibition in respect of benami transaction imposed by Section 4 of the Act applies to purchase of property by a person in the name of his wife or unmarried daughter. The Hon'ble Supreme by considering the various provisions of the 29 O.S.3452/1991 Act, has answered the said question in the negative. In this regard, the Hon'ble Supreme Court has stated thus in para-6 and 7:
"6. We find it difficult to hold that a person permitted to purchase a property in the name of his wife or unmarried daughter under sub-section (2) of Section 3 notwithstanding the prohibition to enter into a benami transaction contained in sub-section (1) of Section 3 cannot enforce his rights arising therefrom, for to hold so would amount to holding that the statute which allows creation of rights by a benami transaction also prohibits the enforcement of such rights, a contradiction which can never be attributed to a statute. If that be so, there can be no valid reason to deny to a person, enforcement of his rights validly acquired even in the past by purchase of property in the name of his wife or unmarried daughter, by making applicable the prohibition contained in respect of filing of suits or taking up of defences imposed in respect of benami transactions in general by sub-sections (1) and (2) of Section 4 of the Act. But it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in sub-
section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter as the case may be, was for her benefit.
30 O.S.3452/1991
7. Therefore, our answer to the question under consideration is that neither the filing of a suit nor taking of a defence in respect of either the present or past benami transaction involving the purchase of property by a person in the name of his wife or unmarried daughter is prohibited under sub-sections (1) and (2) of Section 4 of the Act".
(Emphasis is supplied by underlining).
In the light of the above principles laid down by the Hon'ble Supreme Court, it is not open to the defendants to contend that the suit is barred under Section 4 of Benami Transactions (Prohibition) Act, 1988. In the light of the law laid down by the Hon'ble Supreme Court in the aforesaid case, since the plaintiff has contended that item Nos.1 to 3 of plaint 'B' schedule were acquired by his father Dr. G.N. Ramachandraiah benami in the name of his wife namely first defendant, the Court is required to find out as to whether the plaintiff has proved the said case. Even if this Court accepts that these properties were acquired by Dr. G.N. Ramachandraiah benami in the name of his wife, still the plaintiff will have to prove that such acquisition was not for the benefit of defendant No.1, but for the benefit of real owner. As noticed above, the defendant No.1 has denied the case of the plaintiff that she is only benamidar and she has contended that she has acquired those properties out of her own source, as such, these properties are her self acquired and separate properties.
31 O.S.3452/1991
23. As noticed above, the presumption in law is that the title of the property vests in the person in whose name the sale deed is executed. The Allahabad High Court in the case of Smt.Sunder Devi and another -Vs- Jhaboo Lal and others, reported in AIR 1957 ALLAHABAD 215, has observed thus in para-6:
"It has to be noted that there is no presumption that the property owned or held by a woman necessarily belongs to her husband or that the funds for the acquisition of such a property had been supplied to her by her husband or by somebody else".
The Madras High Court in the case of Nagayasami Naidu -Vs- Kochadai Naidu, reported in AIR 1969 MADRAS 329 has held thus in paragraph-18-A:
"There is an essential distinction as to the scope of the presumption in the case of acquisitions in the names of male members of a joint family and the female members of a joint family. In the case of male members of a joint family, there is a presumption that if the joint family had sufficient ancestral nucleus, the properties standing or acquired in the name of junior members are joint family properties unless the presumption is rebutted by showing that the properties are the separate properties of the particular member or members in whose names the properties stand or were acquired. There is no such presumption in the case of properties standing in the name of the female members. In the latter case, it is for the party who claims properties as joint family properties to specifically plead the particulars and details, in the pleadings and establish the same by adducing necessary evidence. If there is no pleading and if on the side of the 32 O.S.3452/1991 plaintiffs there is no evidence, there is no need for detailed scrutiny of the case of the female members or persons claiming through them, as to the resources of the female members and has to how they acquired the properties in question. If the plaintiff on whom the burden lies adduces no evidence, no further question arises and the female member in whose name the property stands, must be held to be the beneficial owner of the property in question."
(Emphasis is supplied by underlining) This decision of Madras High Court has been followed by the Division Bench of Orissa High Court in Smt. Manohari Devi and others -Vs- Choudhury Sibanava Das and others reported in AIR 1983 ORISSA 135.
24. The Hon'ble Supreme Court in the case of Bhim Singh (dead) by L.Rs. and another, Vs Kan Singh and vice versa, reported in AIR 1980 SUPREME COURT 727 has laid down the principles governing the determination of the question as to whether the transaction is benami or not. The principles laid down in the said decision are contained in para para-18, which reads thus:
"The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: 1) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction: 2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the 33 O.S.3452/1991 purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; 3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and 4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in brining about the transaction and their subsequent conduct, etc.".
25. Again the Hon'ble Supreme Court in Valliammal's case referred to supra after referring to various decisions including the decision in Bhim Singh's case has stated thus in para-13:
"This court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges that transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often such intention is shrouded in a thick veil which cannot be easily pierced through. But difficulties do not relieve the person asserting the transition to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. Referred to Jaydayal Poddar Vs. Bibi Hazra 1974 (1) SCC 3; Krishnanand Vs. State of Madhya Pradesh 1977 (1) SCC 816; Thakur Bhim Singh Vs. Thakur Kan Singh 1980 (3) SCC 72; His Highness Maharaja Pratap Singh Vs. Her Highness Maharani Sarojini Devi & Ors., 1994 (Suppl (1) SCC 734; and Heirs of Vrajlal J. Ganatra Vs. Heirs of Parshottam S Shah 1996 (4) SCC 490. It has been held that in the judgments referred to above that the question 34 O.S.3452/1991 whether a particular sale is a benami or not, is largely one of fact and for determining the question no absolute formulas or acid test uniformly applicable in all situations can be laid. After saying so this Court spelt out following six circumstances which can be taken as a guide to determine the nature of the transaction:
"1. the source from which the purchase money came;
2. the nature and possession of the property after the purchase;
3. motive, if any for giving the transaction a benami colour;
4. the position of the parties and the relationship if any between the climants and the alleged benamidar;
5. the custody of the title deeds after the sale ; and
6. the conduct of the parties concerned in dealing with the property after the sale."
In para-14 their Lordships have stated that the above indicia are not exhaustive and their efficacy varies according to the facts of each case. It is further observed that, nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another".
26. Keeping the principles laid down in these decisions and in the light of the specific case of the plaintiff, let me find out as to whether item Nos.1 to 3 of plaint 'B' schedule were acquired by Dr. G.N.Ramachandraiah in the name of his wife.
According to the learned counsel for the plaintiff the following are the circumstances which would show that item 35 O.S.3452/1991 Nos.1 to 3 of plaint 'B' schedule were acquired by Dr. G.N Ramachandraiah benami in the name of his wife:
i) The defendant No.1 was only housewife and she had no independent source of income of her own;
ii) Dr. G.N Ramachandraiah was a Government Servant, therefore he could not have easily acquired the properties in his name;
iii) After the purchase of the properties more particularly item No.2 of the plaint 'B' schedule, constructions have been put up thereon by Dr. G.N Ramachandraiah by mortgaging 'A' schedule property and raising loan and later he discharged the said loan;
iv) After purchase of the properties Dr. G.N Ramachandraiah was in actual possession and enjoyment of all these properties.
27. On the other hand, learned counsel for the defendant Nos4, 8 and 10 contended that as held in the decisions referred to above, it is not necessary to find out as to whether the defendant No.1 had any independent source of income or not, but it is for the plaintiff to show the source from which the purchase money came and that it is only if plaintiff by cogent and satisfactory evidence prove that purchase money flew from his father, then only the burden shifts on to the defendant No.1 or any one claiming under first defendant to disprove the same. According to the learned counsel in the case on hand the plaintiff has not placed any evidence to show the 36 O.S.3452/1991 source from which the purchase money came, as such, the plaintiff has miserably failed to prove that the properties were acquired by Dr. G.N Ramachandraiah benami in the name of his wife. In the light of the rival contentions let me consider the evidence on record.
28. As noticed earlier, in none of the sale deeds executed in respect of item Nos.1 to 3 of plaint 'B' schedule, there is any recital to indicate that the sale consideration has been paid by Dr. G.N.Ramachandraiah and not by purchaser. On the other hand, the recitals contained therein clearly indicate that the sale consideration has been paid by the purchaser to the vendor. In the plaint, the plaintiff has not specifically pleaded as to the source from which the purchase money came, nor in his examination-in-chief filed by way of affidavit the plaintiff has stated as to the source from which the purchase money came. No doubt, Dr. G.N Ramachandraiah was a Government servant and he was getting salary. However, on this ground alone it cannot be presumed that the purchase money came from the account of Dr. G.N Ramachandraiah. The plaintiff has not produced any document to show the source from which the purchase money came. The plaintiff has not produced any document to show as to how much salary his father was drawing at or about the time of acquisition of these properties. There is no evidence on the part of the plaintiff as to 37 O.S.3452/1991 whether his father was in a position to save money and if so where he had kept the money. Thus, there is neither pleading nor evidence on the part of the plaintiff with regard to the source from which the purchase money came. As observed by the Hon'ble Supreme Court in Valliammal's case the source from where the purchase money came is one of the most important test for determining whether the sale transaction standing in the name of one person is in reality for the benefit of another. As held by Madras High Court in Nagayasami Naidu's case referred to supra, if there is no pleading and if on the side of the plaintiffs there is no evidence, there is no need for detailed scrutiny of the case of the female members or persons claiming through them, as to the resources of the female members and as to how they acquired the properties in question and if the plaintiff on whom the burden lies adduces no evidence, no further question arises and the female member in whose name the property is held, must be held to be the beneficial owner of the property in question. These observations made in the said decision squarely applies to the facts of this case. The plaintiff has neither pleaded nor adduced any evidence as to the source from where the purchase money came. Therefore, there is no need to go into the question as to whether the defendant No.1 had any independent income of her own for acquiring plaint 'B' schedule properties. Of course, the 38 O.S.3452/1991 plaintiff has produced the original mortgage deed dated 10.12.1969 executed by Dr.G.N.Ramachandraiah in favour of one Smt.Yellamma mortgaging the property described in 'A' schedule to the plaint as security for the loan of Rs.2000/- borrowed from the said Smt. Yellamma. As per the recitals contained in Ex.P.2 Dr. G.N Ramachandraiah borrowed a sum of Rs.2000/- from the mortgagee for the purpose of construction of house in Bangalore. The recitals in Ex.P.2 do not indicate as to the property on which Dr. G.N Ramachandraiah was intending to put up construction for which purpose he borrowed money. As Dr.G.N Ramachandraiah was the absolute owner of plaint 'A' schedule property, he was competent to create mortgage in respect of plaint 'A' schedule property. Merely because he executed mortgage deed in respect of 'A' schedule property stating that he has borrowed a sum of Rs.2000/- from mortgagee for the purpose of construction, it cannot be said that he has exercised the right of ownership over any of plaint 'B' schedule properties. There is no other documents produced by the plaintiff to show that Dr.G.N Ramachandraiah by his own money and by the money borrowed on the security of 'A' schedule property put up construction on any of the plaint 'B' schedule properties. As could be seen from Ex.P.5, the sale deed relating to item No.1 of the plaint 'B' schedule, even on the date of purchase i.e., on 39 O.S.3452/1991 9.7.1962 the property comprised of buildings with ground and first floor. Item No.2 of plaint 'B' schedule was allotted in favour of defendant No.1 on 27.10.1966 and by the sale deed was executed in favour of defendant No.1 on 2.1.1969. The defendant No.1 obtained loan from Chickpet House Building Co-operative Society Ltd., Bengaluru for construction of house over item No.2 of 'B' schedule property. Ex.D.11 is passbook and Ex.D.12 to 43 are receipt of repayment of loan. Portion of item No.3 was purchased in the year 1975 and it is an agricultural land. The plaintiff has not produced any document to show as to when the licence was obtained for the purpose of construction of building on item No.2 of plaint 'B' schedule and form where the money for construction of building came. Therefore, from Ex.P.2 no sustenance can be drawn by the plaintiff nor this document indicates that Dr.G.N Ramachandraiah has exercised right of ownership over any of the plaint 'B' schedule properties. Ex.P.3 is the redemption deed in respect of Ex.P.2. It would only show that Dr.G.N Ramachandraiah has discharged the loan amount and got the mortgage redeemed on 24.11.1975. Admittedly, khata of all these properties stands in the name of defendant No.1. At no point of time, any attempt was made by Dr.G.N. Ramachandraiah to get his name mutated in respect of item Nos.1 and 2 of plaint 'B' schedule in the revenue records 40 O.S.3452/1991 pertaining to item No.3 of plaint 'B' schedule. It may be noted here that only 4.00 acres of land in item No.3 of plaint 'B' schedule was purchased before the death of Dr. G.N Ramachandraiah. The remaining 2.00 acres has been acquired after the death of Dr. G.N Ramachandraiah. Therefore, it can never be said that the entire item No.3 of plaint 'B' schedule was acquired by Dr. G.N Ramachandraiah. Therefore, there is no acceptable evidence to show that Dr. G.N Ramachandraiah during his lifetime has exercised the right of ownership over any of the plaint 'B' schedule properties.
29. No doubt, Dr.G.N.Ramachandraiah was a Government servant. However, it cannot be said that no Government servant could acquire property in his name nor it can be said that if a Government servant wants to acquire property he should acquire only in the name of his wife or in the name of his family members. No doubt, if the Government servant wants to acquire immovable properties he has to seek necessary permission from the competent authority. Therefore, Dr.G.N. Ramachandraiah if really wanted to acquire the properties he could have applied for permission and thereafter he could have acquired the properties in his name. Therefore, there is no clear evidence as to the motive for acquiring the properties benami in the name of defendant No.1 or to give the transactions a benami colour. At this stage, it is necessary to note that it is an undisputed fact that Dr.G.N. 41 O.S.3452/1991 Ramachandraiah retired from the Government service in the year 1960 and he died on 30.10.1975. From this it is clear that Dr.G.N. Ramachandraiah survived for nearly 12 years after his retirement. If really item Nos.1 to 3 of plaint 'B' schedule had been acquired by him benami in the name of his wife and for such acquisition he had certain motives or reasons, after his retirement, before his death, he would have certainly taken some action to get the property into his name or he would have executed any document indicating the benami nature of the acquisition. It is an admitted fact that Dr. G.N Ramachandraiah after his retirement till his death did not execute any document nor he has indicated anywhere in writing that these properties were acquired by him benami in the name of his wife. It is further necessary to bear in mind that even as on the date of death of Dr.G.N Ramachandraiah there was no prohibition for benami transactions. The benami transactions were permitted in India. It was open for the real owner to get declaration for his ownership or it was open for him to dispose of such properties in any manner he likes. From these facts, it is manifestly clear that there are no circumstances indicating that Dr.G.N Ramachandraiah was the acquirer of the properties nor to indicate that the acquisitions were benami in nature. In the light of the discussions made above, I am of the considered opinion that the plaintiff has miserably failed to establish that 42 O.S.3452/1991 item Nos.1 to 3 of plaint 'B' schedule were acquired by his father Dr. G.N Ramachandraiah benami in the name of defendant No.1. Therefore, there is no difficulty in holding that the defendant No.1 is the absolute owner of item Nos.1 to 3 of the plaint 'B' schedule.
30. Assuming for the purpose of argument that item Nos.1 to 3 of plaint 'B' schedule were acquired by Dr. G.N Ramachandraiah benami in the name of his wife and in the light of sub-section (2) of Section 3 of Benami Transactions (Prohibition) Act, such benami transaction is permitted, let me consider as to whether the plaintiff has been able to prove the contrary intention. As noticed earlier, according to clause (a) of sub-section (2) of Section 3 of the Act, in case of acquisition of property by a person in the name of his wife, the presumption is that it is for the benefit of the wife unless the contrary is proved. The "contrary is proved" as stated in clause (a) of sub- section (2) of Section 3 means that the acquisition is for the benefit of the real owner and not for the benefit of the wife. As noticed above, Dr. G.N Ramachandraiah during his life time and even after his retirement has not indicated nowhere in writing that the properties have been acquired not for the benefit of his wife but for the benefit of himself or for the benefit of any of his family members. The learned counsel for the plaintiff drew the attention of the Court to the admissions made 43 O.S.3452/1991 by D.W.1 during the course of cross-examination contained in para-5, which reads as under:
"It is true that item-2 in 'B' schedule measuring 30x40 feet was allotted in the name of my mother. It is false to suggest that my father paid the consideration for allotment of item-2 of B schedule. My father pursued the matter regarding the application for allotment of said item in 'B' schedule in favour of my mother. It is true that the said property was acquired in the name of my mother to avoid disharmony in the family. As my father had become old he got the allotment of item-2 of 'B' schedule in favour of my mother. All the properties were acquired for the benefit of the family. House was constructed in item-2 of 'B' schedule by borrowing loan from Chickpet Housing Board Co-operative Society, Bangalore. The rental income from the said house was used for repayment of loan. It is false to suggest that schedule-A property was mortgaged and the mortgage amount was used for construction of house in item-2 of B -schedule".
31. No doubt, the reading of this evidence of D.W.1, to some extent indicates that the properties were acquired for the benefit of the family. However, in the absence of any cogent and acceptable evidence to indicate the positive action on the part of Dr. G.N Ramachandraiah indicating his intention that these properties were acquired not for the benefit of his wife, but for the benefit of himself or any other member of the family, astray answer elicited during the cross-examination of D.W.1 cannot be a basis to hold that presumption under Section 3 (2) 44 O.S.3452/1991
(a) of Benami Transaction (Prohibition) Act has been rebutted. In a case of this nature, there should be positive evidence as to the contrary intention so as to rebut presumption. Therefore, I am of the considered view that the plaintiff has utterly failed to establish the contrary intention on the part of Dr. G.N Ramachandraiah in acquiring the properties in the name of defendant No.1. Under these circumstances, as per the presumption contained in clause (a) of sub-section (2) of section 3 of Benami Transaction (Prohibition) Act, the properties have been purchased for the benefit of defendant No.1. Therefore, she is the absolute owner of these properties. The advocate for the plaintiff has contended that the defendant No.1 Rajamma was holding item Nos.1 to 3 properties in fiduciary capacity for the benefit of the children of Dr.G.N.Ramachandraiah. On that point, he placed reliance on the decision of the Hon'ble Supreme Court reported in 2012 AIR SCW page 3007 between Marcel Martin Vs. M. Printer and others, wherein in para Nos.23 and 24, it is held as under;
"23. In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the Court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence or otherwise of a fiduciary relationship can be deducted in a given case. Having said that, let us turn to the facts of the present case once more to determine 45 O.S.3452/1991 whether the appellant stood in a fiduciary capacity vis-? Is the plaintiffs-respondents."
"24. The first and foremost of the circumstance relevant to the question at hand is the fact that the property in question was tenanted by Smt. Stella Martins-mother of the parties before us. It is common ground that at the time of her demise she had not left behind any Will nor is there any other material to suggest that she intended that the tenancy right held by her in the suit property should be transferred to the appellant to the exclusion of her husband, C.F-Martins or her daughters, respondents in this appeal, or both. In the ordinary course, upon the demise of the tenant, the tenancy rights should have as a matter of course devolved upon her legal heirs that would include the husband of the deceased and her children (parties to this appeal). Even so, the reason why the property was transferred in the name of the appellant was the fact that the Corporation desired such transfer to be made in the name of one individual rather than several individuals who may have succeeded to the tenancy rights. A specific averment to that effect was made by plaintiffs-respondents in para 7 of the plaint which was not disputed by the appellant in the written statement filed by him. It is, therefore, reasonable to assume that transfer of rights in favour of the appellant was not because the others had abandoned their rights but because the Corporation required the transfer to be in favour of individual presumably to avoid procedural complications in enforcing rights and duties qua in property at a later stage. It is on that touchstone equally reasonable to assume that the other legal representatives of the deceased-tenant neither gave up their tenancy rights in the property nor did they give up the benefits that would flow to them as legal heirs of the deceased tenant consequent upon the decision of the 46 O.S.3452/1991 Corporation to sell the property to the occupants. That conclusion gets strengthened by the fact that the parties had made contributions towards the sale consideration paid for the acquisition of the suit property which they would not have done if the intention was to concede the property in favour of the appellant. Superadded to the above is the fact that the parties were closely related to each other which too lends considerable support to the case of the plaintiffs that the defendant-appellant held the tenancy rights and the ostensible title to the suit property in a fiduciary capacity vis-? Is his siblings who had by reason of their contribution and the contribution made by their father continued to evince interest in the property and its ownership. Reposing confidence and faith in the appellant was in the facts and circumstances of the case not unusual or unnatural especially when possession over the suit property continued to be enjoyed by the plaintiffs who would in law and on a parity of reasoning be deemed to be holding the same for the benefit of the appellant as such as the appellant was holding the title to the property for the benefit of the plaintiffs.
The facts of the present case and the facts of the said decisions are different. In the said case, the suit property was given on rent to mother of the parties. Corporation decided to sell the property to the mother. The mother died. The property has been sold in the name of defendant i.e., one of the sons as Corporation wanted to sell it to one person rather than to several persons who have succeeded to tenancy. The plaintiffs, husband and daughters of original tenant making contribution towards the sale consideration paid for acquisition of suit 47 O.S.3452/1991 property. The said making of contribution clearly shows that plaintiffs have not given up their tenancy rights in property nor did they give up benefits that would flow with them as LRs. of original tenant. The parties are all closely related. Therefore, in the said circumstances of Hon'ble Supreme Court has held that defendant holds the property in fiduciary capacity and prohibition u/Sec.4 would not apply and suit for declaration that plaintiffs are co-owners is maintainable. The facts in the present case are different. Therefore, the law laid down in the above decision is not applicable to the case on hand. In view of the above discussion, I hold that the plaintiff has proved that plaint 'A' schedule property was the property of Dr. G.N Ramachandraiah and upon his death all his heirs namely plaintiff and defendants 2 to 10 have equal share in the said property. I further hold that the plaintiff has miserably failed to establish that item Nos.1 to 3 of the plaint schedule were acquired by his father Dr. G.N Ramachandraiah benami in the name of defendant No1. Therefore, those properties are the separate properties of defendant No.1. Accordingly, I answer Issue No.1 in the negative.
32. Issue No.2:- The defendant No.1 Rajamma died during the pendency of the suit in the year 2003. Defendant No.3(a) and 3(b), 4, 5 and 10 have got amended their written statement. The defendant No.4 has taken up the contention 48 O.S.3452/1991 that item No.1 of plaint 'B' schedule is the self-acquired property of defendant No.1 Rajamma and she has purchased the same under the registered sale deed dated 9.7.1962 and the said property was purchsed out of her earnings and the amount given to her by her parents. She has further contended that Late. Rajamma out of love and affection had executed a registered Will dated 29.8.1989 in favour of defendant No.4 bequeathing item No.1 of plaint 'B' schedule property. The plaintiff in his amended plaint has contended that defendant No.4 being closely associated with the defendant No.1 and having dominion over the defendant No.1 and other members of the family got created the Will said to have been executed by the defendant No.1 and defendant No.1 never executed any such Will and the said Will is a concocted and fabricated one. The plaintiff has denied that the defendant No.1 executed the Will in favour of defendant No.4. The registered Will is marked at Ex.D.3 and it is dated 29.8.1989. Ex.D.3 Will has been marked in the evidence of DW.1 who is defendant No.8. Defendant No.4 has not entered the witness box. The defendant No.4 is the propounder of the Will. Subsequent to remand, the attesting witness has been examined as DW.4 and in his evidence the Will is marked as Ex.D.3. The learned Advocate appearing for plaintiff has contended that the propounder ought to have 49 O.S.3452/1991 entered the witness box and got marked the Will in her evidence.
33. The learned Advocate appearing for defendant No.4 has contended that the examination of the porpounder is not essential and the Will has to be marked in evidence of attesting witness. He has further contended that propounder need not be examined if she is not present at the time of execution of the Will. It is not the case of the defendant No.4 that she was present at the time of execution of the Will. The learned Advocate appearing for the defendant No.4 has placed reliance on the decision of the Hon'ble High Court of Delhi in the case of Narendra Nath Nanda vs. State and Others in FAO (OS)2/2011 dated 15.2.2017, wherein it is held that, "the propounder of the Will need not examine himsef, and especially if it is not the case of the propounder that he was present when the deceased executed the Will". In view of the ratio laid down in the aforesaid decision, the contention of the plaintiff that defendant No.4 has not entered the witness box and Will is not marked through her is mis-conceived.
34. The attesting witness to the Will viz., Sri. C.S. Selvarathinam has been examined as DW.4. DW.4 in his affidavit evidence has stated that he knew Late. Smt. Rajamma as her daughter Smt. G.R. Leelamma was working in HAL and 50 O.S.3452/1991 he used to visit the house of Rajamma. He has further stated that Late. Smt. Rajamma had more love and affection towards G.R. Leelamma as she was living with her and her husband had deserted her. G.R.Leelamma was taking care of Smt. Rajamma.
He has further stated that once Rajamma had met him near HAL Hospital and asked him to be a witness to the Will that she wanted to execute and he agreed and he had been to the Sub-
Registrar Office on 29.8.1989. He has further stated that Smt. Rajamma was hale and healthy and she was speaking. He has further stated that on the said date, when he reached the Sub-
Registrar Office along with Rajamma, one Sri. R. Srinivasan and Advocate were present. He has further stated that the Advocate read over the Will and explained to them in Kannada and made us to understand. The Sub-Registrar read over the contents of the documents and explained in Kannada. Smt. Rajamma, after understanding the contents of the documents signed the Will before the Sub-Registrar. He has further stated that R. Srinivasan is no more. He has further stated that Smt. Rajamma had bequeathed the property out of her own will and volition and love and affection towards Smt. G.R. Leelamma.
He has identified his signature which is marked at Ex.D.3(a) and he has also identified signatures of Rajamma which are marked as Ex.D.3(b) to (f). DW.4 in the cross-examination has stated that he has studied 8th standard in Tamil medium and 51 O.S.3452/1991 he has studied Tamil, Kannada and English languages in School and he can read and write English to a little extent and he affixes his signature in English. He has further stated that he does not know the name of the husband of Rajamma. He has further stated that he is not the relative of Rajamma. He has stated that Rajamma was little fat and he does not know her height. He has further stated that Rajamma told him that she is giving her property to her daughter Leelamma and Rajamma told him that she is bequeathing her property and asked him to affix his signature. He has further stated that Rajamma asked him to come to the Court to affix his signature and he went to the Court and in the Court premises, he was given a document for affixing his sgnature and he asked what it contains and the lawyer present there has told him that Rajamma is bequeathing her property to her daughter and at that time, Rajamma, himself, Srinivas and Lawyer were present.
He has further stated that he knew Srinivas as he was working as Grade-II Officer in HAL Aero Engine Factory and Leelamma was working as Typist in HAL Factory and he was working as a Turner in HAL factory. Leelamma was taking attendance and therefore he knows her. He has further stated that he is affixing the same signature which he was fixing earlier. He has further stated that he does not know the date when Rajamma executed the Will and he does not know the week day on which 52 O.S.3452/1991 the said Will was executed and he does not know at what time the said Will was written and he does not know whether Rajamma was literate or not. He has further stated that he has affixed the signature on the Will may be after 12 noon. He has further stated that he came to the Court on a working day of HAL and he does not know whether he had applied leave or not on that day and he might have applied leave. He has further stated that he does not know at which place Rajamma had given instruction to write Will and who wrote the Will. He has further stated that he does not know whether anybody told Rajamma what is written in the Will. He has denied the suggestion that Rajamma had not executed the Will Ex.D.3.
35. Regarding the proof of Will, the learned Advocate appearing for the plaintiff has relied upon the following decisions:
1. (2015) 12 SCC Page, 301 in the case of Dhannulal and Others Vs. Ganeshram and anr. wherein it is held as under;
"19. Proof of a will stands in a higher degree in comparison to other documents. There must be a clear evidence of the attesting witnesses or other witnesses that the contents of the will were read over to the executant and he, after admitting the same to be correct, puts his signature in presence of the witnesses. It is only after the executant puts his signature, the attesting witnesses shall put their signatures in the presence of the executant."53 O.S.3452/1991
2. ILR 2006 KAR 4213 in the case of V.M. Neelakantaiah and another vs. State of Karnataka by Chief Secretary and others, wherein it is held as under;
"Para.4. So far as the submission of the learned counsel for the petitioners that mere marking of a document does not amount to proving of a document. There cannot be any two opinion. But the question is that if Sec.68 of the Indian Evidence Act requires a party to produce the said document in evidence by examining an attestor, petitioners cannot be permitted to mark such document in their examination-in- chief without marking a Will through an attestor. In such circumstances, by seeking permission of the court to lead further evidence on the document in question, petitioners can examine the attestor to the Will and mark the Will through an attestor and thereafter if necessity arises petitioners can request the court to lead further evidence on the Will in question by the petitioners ."
3. AIR 1959 SC 443, in case of H. Venkatachala Iyengar vs. B.N. Thimmajamma and others, wherein it is held as under;
"The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss.45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that 54 O.S.3452/1991 such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions it would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory 55 O.S.3452/1991 and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law."
In a decision referred to above i.e., ILR 2006 Karnataka, Page 4213, Hon'ble High Court has held that Will has to be marked in the evidence of attesting witness. In the present case, even though initially the Will is marked in the evidence of DW.1 (defendant No.8), but subsequently the attesting witness has been examined as DW.4 and Will is marked in his evidence along with the signatures of the testator and the attesting witness.
36. The learned Advocate appearing for plaintiff has contended that there are suspicious circumstances surrounding the execution of the Will. He has further contended that the defendant No.1 Rajamma has 10 children and she has bequeathed item No.1 of schedule 'B' property in favour of defendant No.4 and deprived the other natural heirs in one of the suspicious circumstances. The learned counsel appearing for defendant No.4 has contended that deprivation of a due share by the natural heir itself is not a factor which would lead to the conclusion that there exist a suspicious circumstance. On that point, he has placed reliance on a decision of the Hon'ble Supreme Court, reported in CDJ 2007 S.C. 1117 in case of Savithri and others Vs. Karthyayani Amma & others, wherein it is held as under;
56 O.S.3452/1991
"Para.19. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant."
"Para 20. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring."
The reason behind bequeathing item No.1 of schedule 'B' property in favour of defendant No.4 Leelamma has been mentioned in the Will. In the Will, it is mentioned that her daughter Smt.G.R. Leelamma has been deserted by her husband and she is residing with her son aged 16 years with the testator and she is looking after the testator in her old age by spending for all her medical expenses and other expenses 57 O.S.3452/1991 and she has given all her jewels for the marriage of her other children out of natural love and affection and also because the said G.R. Leelamma does not have anybody else to lookafter her and also because there should not be any difficulty for the said Smt. G.R. Leelamma to get the schedule property after the death of testator.
37. PW.1 in his cross-examination has admitted the fact that defendant No.4 G.R. Leelamma has been deserted by her husband and she is residing with her mother Rajamma i.e., defendant No.1. Therefore, there is a reason for defendant No.1 Rajamma to bequeath item No.1 of schedule 'B' property in favour of defendant No.4 G.R. Leelamma depriving the due share by the natural heirs. Therefore, the said aspect of deprivation of due share by natural heir itself is not a fact leading to the conclusion that there exists a suspicious circumstance. DW.4 in his affidavit evidence has stated that Smt. Rajamma was hale and healthy and she was speaking. The very said aspect goes to show that the said Rajamma was possessing sound disposing state of mind. The said aspect has not been challenged or denied in the cross-examination of DW.4. The Will is executed on 29.8.1989. The defendant No.1 Rajamma has appeared through counsel in the present suit in the year 1991 and filed her written statement. The very said 58 O.S.3452/1991 aspect goes to show that Smt. Rajamma was hale and healthy and possessing sound disposing state of mind.
38. The learned counsel appearing for the plaintiff has contended that the defendant No.1 has appeared in the suit through counsel and filed her written statement and the said written statement of defendant No.1 does not contain any averment regarding execution of the Will by her. Therefore, he contends that the said Will Ex.D.3 is created one. In the written statement, the defendant No.1 Rajamma has not at stated regarding execution of the Will dated 29.8.1989. The Will will come into effect only on the death of a person. As the Will will come into effect only after the death, defendant No.1 Rajamma might have not stated regarding execution of the Will in her written statement. The defendant No.1 might not have mentioned regarding the Will in her written statement to prevent the disharmony in the family during her lifetime. Therefore, only because the defendant No.1 has not pleaded in her written statement regarding the execution of the Will is not a suspicious circumstance to come to the conclusion that Will is created one.
39. There are two attesting witnesses to the Will Ex.D.3. One is DW.4 and another one is Sri. R.Srinivasan. The said R. Srinivasas is no more and the same has been stated in 59 O.S.3452/1991 the evidence affidavit of DW.4 and it is also not challenged in the cross-examination of DW.4. Examination of one of the attesting witnesses to the Will is sufficient to prove the Will. DW.4 has stated in his evidence affidavit that the Advocate read over the Will and explained to all of them in Kannada and made them understand. He has also stated that the Sub-Registrar read over the contents of the document and explained in Kannada. He has further deposed that Smt. Rajamma after understanding the contents signed the Will and thereafter he and Srinivasan signed the document. Therefore, the said aspect goes to show that the testator Smt. Rajamma affixed her signature after understanding the contents of the Will in the presence of two attesting witnesses. The said two attesting witnesses affixed their signatures on the Will in the presence of the testator Rajamma. The learned counsel appearing for the plaintiff has contended that Rajamma was illiterate and she was not knowing English language and the contents of the Will are in English. DW.4 has specifically stated in his affidavit evidence that the Advocate read over the Will and explained to all of them in Kannada and made them to understand. The said aspect goes to show that even though the contents of the Will are in English, they have been read over and explained to the testator and the attesting witnesses. Merely because there is no endorsement in the Will regarding explaining its contents 60 O.S.3452/1991 in Kannada to the testator is not a ground to disbelieve the evidence of DW.4 that the contents of the Will are read over and explained in Kannada to the testator and attesting witnesses. The said Ex.D.3 is a registered Will. Rajamma has presented the said Will for registration and admitted its execution before the Sub-Registrar and there is an endorsement to that effect on the backside of page No.1 of Ex.D.3 Will.
40. A copy of identity card of DW.4 has been got produced in the cross-examination as he has brought the said identity card and it is marked as Ex.D.72. There is a signature in Ex.D.72. The learned advocate appearing for the plaintiff has contended that the said signature on Ex.D.72 differs from the signature of DW.4 in Ex.D.3 Will and his affidavit evidence. It is not elicited in the cross-examination of DW.4 that signature on Ex.D.72 Identity Card is his signature. The signature on Ex.D.72 and signature on affidavit evidence of DW.4 are entirely different. The signature of DW.4 in evidence affidavit tallies with the signature on Ex.D.3 Will. Therefore, the said contention of the plaintiff that Ex.D.3 does not contain the signature of DW.4 is misconceived. There are no suspicious circumstances surrounding the execution of the Will. It is already held in Issue No.1 that item No.1 of schedule 'B' property is the property of defendant No.1 Rajamma. Therefore, the defendant No.1 Rajamma had capacity and right 61 O.S.3452/1991 to dispose of the said property by Will. Therefore, I hold that the defendant No.4 has proved that Rajamma (defendant No.1) executed a registered Will dated 29.8.1989 in her favour bequeathing item No.1 of schedule 'B' property. Accordingly, I answer Issue No.2 in the affirmative.
41. Issue No.4:- The plaintiff has contended in para 8(c) of his plaint that the defendant No.10 has created a fraudulent gift deed said to have been executed by defendant No.1 in her favour in respect of item No.3 of 'B' schedule measuring 6.11 guntas in Sy.No.381/2 situated at Hulikal Village, Kudur Hobli, Magadi Taluk, Bengaluru during the pendency of the suit as the gift deed bears the date 13.2.1992. It is the further contention of the plaintiff that neighter the defendant No.1 nor defendant No.10 at any point of time and however, the said gift deed shows the residence of the defendant No.1 and defendant No.10 as Hulikal Village and as such, the said document is a concocted and fraudulent document and the defendant No.1 never executed any such document in favour of defendant No.10. He has further contended that the said gift deed is to be declared as null and void and not binding on the plaintiff. The plaintiff has sought the relief of declaration that the gift deed dated 13.2.1992 is null and void and not binding on the plaintiff. PW.1, in his examination-in-chief filed by way of affidavit, the plaintiff has stated that he came to know that 62 O.S.3452/1991 the first defendant had executed certain document dated 13.2.1992 in favour of 10th defendant in respect of item No.3 of plaint 'B' schedule. He has further stated that the said document being sham one created during pendency of the suit is not binding on him. The certified copy of the said document dated 13.2.1992 came to be produced and marked as Ex.P.9. Perusal of this Ex.P.9 indicates that it is a Gift Deed executed by the defendant No.1 in favour of defendant No.10 in respect of item No.3 of plaint 'B' schedule. Thus, the plaintiff during the evidence admits that the defendant No.1 has gifted item No.3 of plaint 'B' schedule in favour of 10th defendant. No doubt, the 10th defendant did not file her written statement soon after she appeared in the case. However, it is necessary to note that item No.3 of plaint 'B' schedule was not included initially in the plaint. The said property was included only on 26.11.1998. Therefore, there was no need or necessary on the part of defendant No.10 to file written statement, as item No.3 which is purported to have been gifted to her was not the subject matter of the suit as on the date when she appeared in the Court. Of course, even after the amendment by including item No.3, the 10th defendant has not filed any written statement. Similarly, the defendant No.1 in her written statement has not disclosed anything about this Gift Deed. However, this circumstance also cannot be used by the plaintiff to attack the Gift Deed for the 63 O.S.3452/1991 reason that when the defendant No.1 filed her written statement in the case on 17.11.1994, item No.3 of plaint 'B' schedule had not been included. Therefore, the plaintiff cannot draw any sustenance from that fact. Of course, after the amendment of the plaint by including item No.3, the defendant No.1 has not filed her additional written statement. However, in my considered view, that cannot be a basis to hold that the Gift Deed is sham document. It is only during evidence the plaintiff introduced these facts and has contended that it is the sham document. Through DW.1 the original Gift Deed came to be produced and it is marked as Ex.D.46. Thus, the original Gift Deed has been produced for the inspection of the Court and thus the requirement of Section 64 of the Indian Evidence Act is complied with. No doubt, the Gift Deed is compulsorily attestable document. Section 68 of the Indian Evidence Act directs that a document required by law to be attested, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. However, according to the proviso to Section 68, it shall not necessary to call an attesting witness in proof of execution of any document, not being a Will if it is registered in accordance with the provisions of Indian Registration Act, unless its execution by the person by whom it purports to have been executed is specifically denied. 64 O.S.3452/1991 Therefore, the rigor of Section 68 to call at least one of the attesting witnesses for the purpose of proving its execution is not nullified in respect of all other documents except the Will, provided such document is registered in accordance with the Indian Registration Act and the purported executant has not specifically denied its execution. In the case on hand, the Gift Deed is registered in accordance with the Indian Registration Act. The defendant No.1 is the purported executant of the Gift Deed. This document has been executed on 13.2.1992. The defendant No.1 died on 16.12.2003. Thus, the defendant No.1 was surviving for nearly 11 years after the execution of the Gift Deed. During her lifetime, she has not denied the execution of the Gift Deed. Therefore, there was no need on the part of defendant No.10 to prove the Gift Deed by examining the attesting witness. PW.1 in para No.31 of his cross-examination has given admission which reads thus;
"During the lifetime of my mother Rajamma has gifted item No.3 of 'B' schedule property in favour of defendant No.10 Ambuja, but during her life time I have not been denied the signature of my mother in respect of the Gift deed because no situation has been arose."
The above said admission clearly goes to show that the plaintiff has admitted the execution of the gift deed of item No.3 of 'B' schedule property in favour of defendant No.10. 65 O.S.3452/1991
42. The learned Advocate appearing for the defendant No.10 has contended that the executant has not denied the execution of the gift deed during her lifetime and the plaintiff admits the execution of the gift deed and therefore, the question of examining the attesting witnesses does not arise. On that point, he placed reliance on the decision of the Hon'ble High Court of Karnataka reported in CDJ 2006 Karnataka High Court, page 113 between Hanumantappa Vs. Bhimawwa & Others, wherein it is held as under;
"In the decision of the Supreme Court in Surendra Kumar vs. Nathulal (Supra) the Hon'ble Supreme Court held that where the executant had admitted execution of gift deed, question of examining attesting witness does not arise and the decision of Balappa Tippanna vs. Asangappa Mallappa cited above, this Court has held that when the executant has not denied the execution of gift deed the document can be proved although it may not be in the same manner as indicated under Section 68 of the Act itself that is by examining the attestator and the decision relied upon in the case of Kumbara Narasimhappa vs. Lakkanna this Court has laid down that defendants who are interested in the denial of execution can deny the execution of the document and in the present case both the defendants have denied the execution of the document in the written statement, the truth has come out in the evidence of DW.1 wherein he has admitted that he was put in possession of the property as the minor guardian as the plaintiffs were minors at the time of execution of the gift deed and his witness DW.2 has also admitted the execution of the gift deed and 66 O.S.3452/1991 wherefore the question of examining attestator in the present case does not arise and the finding of the Courts below that the gift deed has been proved in accordance with law, is justified and the same do not give rise to any substantial question of law to be decided in this appeal.
Thus, in view of the above discussion, I hold that the defendant No.1 during her life time had divested her right of ownership in respect of item No.3 of plaint 'B' schedule by executing gift deed in favour of defendant No.10 and therefore, the defendant No.1 was not the owner of the said property as on the date of her death. Accordingly, I answer Issue No.4 in the affirmative.
43. Issue No.3: It is the case of the defendant No8 that item No.2 of plaint 'B' schedule property was self acquired property of his mother Smt. Rajamma as she was allotted the same from the City Improvement Trust Board on 3.10.1966 and after allotment CITB executed a registered sale deed dated 2.1.1969 in favour of his mother. It is the further case of the defendant No.8 that his mother Late. Rajamma had sold the property for a valuable consideration in his favour by virtue of a registered sale deed dated 16.10.1985. It is the further case of the defendant No.8 that the khatha of the said property has been changed into his name and he paid the property tax at regular intervals. It is the further case of the defendant No8 that, his mother had obtained a loan from Chickpet House 67 O.S.3452/1991 Building Co-operative Society by virtue of original title deeds of the said property for development and construction of a house over the said property and the said loan was cleared by him. It is the further case of the defendant No.8 that thereafter he obtained a loan from Mahila Co-operative Bank, Malleswaram by depositing the original title deeds of the said property and thereafter he sold the said property to one Mahaveer K. Ranka for discharge of the said loan. It is the case of the plaintiff that item No.2 of schedule 'B' property has been purchased by Dr.G.N.Ramachandraiah in the name of his wife Rajamma and it is a benami transaction and it is to maintain harmony in the family. Ex.D.10 is the possession certificate issued by CITB in favour of defendant No.1 Rajamma in respect of item No.2 of schedule 'B' property and the said possession has been given on lease for 10 years. The said Ex.D.10 bears the signature of Rajamma. Ex.P.4 is the certified copy of the sale deed dated 2.1.1969 executed by CITB in favour of Rajamma in respect of item No.2 of schedule 'B' property. There is a gap of more than two years in between the handing over of possession and execution of sale deed by CITB in favour of defendant No.1 Rajamma. It is the case of defendant No.8 that his father Dr.G.N.Ramachandraiah and his four brothers along with the brothers and father of Rajamma have sworn to the disclaimer affidavit in respect of item No.2 of schedule 'B' property. 68 O.S.3452/1991 Ex.D.76 is the zerox copy of the said disclaimer affidavit. It is the case of defendant No.8 that in the year 2017, when he was travelling in an autorickshaw, he lost the original of Ex.D.76 and he intimated the same to Malleswaram Police Station on 18.6.2017. Even earlier, the defendant No.8 has referred to the said disclaimer affidavit in his evidence but has not chosen to produce the original either before the remand or after remand of the case. Therefore, the defendant No.8 has not made out a case for producing secondary evidence in respect of this disclaimer affidavit. Even though the defendant No.8 has not made out a case for leading secondary evidence, but the said Ex.D.76 can be taken into consideration for a limited purpose. The said disclaimer affidavit Ex.D.76 is dated 19.2.1968. Under the said disclaimer affidavit, the father and two brothers of Rajamma, husband and four sons of Rajamma have sworn that they have no right, title or interest jointly and severally in respect of item No.2 of schedule 'B' property and Rajamma is the absolute owner of the said property. This disclaimer affidavit is on the date i.e., 19.2.1968 i.e., the date between the allotment of the site on 3.10.1966 by CITB and the date of registration of the sale deed dated 2.1.1969 by CITB. Therefore, it appears that the said disclaimer affidavit has been submitted to CITB and thereafter, CITB has executed a registered sale deed dated 2.1.1969 in favour of Rajamma. In Ex.P.4 sale deed, 69 O.S.3452/1991 the consideration has been paid by Rajamma to the CITB. Therefore, item No.2 of schedule 'B' property is absolute property of Rajamma. Rajamma availed loan from Chickpet House Building Co-operative Society Ltd., for the purpose of construction of building over item No.2 of schedule 'B' property. Ex.D.11 is the passbook of the account of Rajamma and Ex.D.12 to D.43 are receipts for having paid the loan instalments. The said receipts bear the signature of defendant No.8 for having made the payment to the said co-operative society. The said Rajamma has let out the building constructed over item No.2 of 'B' schedule property and out of the rent received, she has paid the loan instalments obtained for the purpose of construction of the house. Therefore, item No.2 of the plaint 'B' schedule property is the absolute property of defendant No.1 Smt. Rajamma. It is also considered in the Issue No.1 regarding the contention of the plaintiff that his father has purchased the said property in the name of his mother and held that item No.2 of schedule 'B' property is the absolute property of Smt. Rajamma.
44. Defendant No.8 has purchased item No.2 of schedule 'B' property from defendant No.1 Rajamma under the sale deed dated 16.10.1985 for a sale consideration of Rs.80,000/-. Ex.D.9 is the certified copy of the said sale deed dated 16.10.1985. After Ex.D.9 sale deed, the defendant 70 O.S.3452/1991 continued in possession of item No.2 of schedule 'B' property. Defendant No.8 obtained a loan from Mahila Co-operative Bank Ltd., Malleswaram, Bengaluru for construction of first and second floor of the building in item No.2 of schedule 'B' property. Ex.D.44 is the loan passbook of defendant No.8. The defendant No.1 Rajamma was the absolute owner of item No.2 of schedule 'B' property. She has got right, title and interest to transfer the same. The defendant No.8 has purchased the said property under the sale deed dated 16.10.1985 for sale consideration of Rs.80,000/-. Therefore, the defendant No.8 has acquired title to item No.2 of schedule 'B' property. The defendant No.8 has sold the said property to one Mahaveer Ranka. The plaintiff has filed an application to implead the said Mahaveer Ranka. The said Mahaveer Ranka is not a necessary party as the said transaction amounts to lis-pendence u/Sec.52 of the Transfer of Property Act and the decree to be passed in this case is binding on the said Mahaveer Ranka. The defendant No.8 has proved that he has purchased item No.2 of schedule 'B' property from the defendant No.1 as she was the absolute owner of it under the sale deed dated 17.10.1985 by paying valid consideration. Accordingly, I answer issue No.3 in the affirmative.
45. Issue No.5: The defendants 3 to 5 and 10 in their written statement have contended that the property bearing 71 O.S.3452/1991 Sy.No.336 to the extent of 28 guntas of land at Hulikal Village, Kudur Hobli, Magadi Taluk, Bengaluru District described under the schedule in the written statement which is referred to as counter claim schedule property was purchased by the defendant No.5 i.e., Dr. G.R.Shyamalamma by herself earned money which was registered in the name of the plaintiff by way of registered sale deed dated 13.09.1974. It is further contended that the plaintiff had no income at the said point of time when property was purchased by the defendant No.5 in the name of the plaintiff. The plaintiff had also promised to return the said property to defendant No.5 as and when she demands the same. They have further contended that till date the original sale deed is in the custody of defendant No.5 and she is in possession and enjoyment of the same. They have further contended that the defendant No.4 remained spinster and she does not want exclusive right over the said property and same has to be divided in between her brothers and sisters. The plaintiff in his rejoinder has denied that 28 guntas of land in Sy.No.336 of Hulikar Village was purchased by defendant No.5 i.e., Dr. G.R.Shyamalamma by her self-earned money and the same was registered in the name of plaintiff by way of registered sale deed dated 13.9.1974. The plaintiff further contended that he being in employment in the year 1970 purchased the said property out of his earnings and the same is his self-acquired 72 O.S.3452/1991 property and it is not liable to be partitioned. He has further contended that the claim of the defendant No.5 is hit by the provisions of Sec.4(1) of Benami Transactions (Prohibition) Act, 1988. The provisions of Benami Transactions (Prohibition) Act, 1988 have been discussed in detail under issue No.1. The Hon'ble Supreme Court in Valliammal's case has held that the question whether a particular sale is a Benami or not is largely one of the fact and for determining the question no absolute formulas or acid test uniformly applicable in all situations can be laid. After saying so, the Court spelt out following six circumstances which can be taken as a guide to determine the nature of the transaction. They are;
"1. the source from which the purchase money came;
2. the nature and possession of the property after the purchase;
3. motive, if any for giving the transaction a benami colour;
4. the position of the parties and the relationship if any between the climants and the alleged benamidar;
5. the custody of the title deeds after the sale ;
and
6. the conduct of the parties concerned in dealing with the property after the sale."
In para 14, their Lordships have stated that the above indicia are not exhaustive and their efficacy varies according to the facts of each case. It is further observed that nevertheless, the 73 O.S.3452/1991 source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. It is not necessary to find out as to whether the plaintiff had any independent source of income or not but it is for the defendant No.5 to show the source from which the purchase money came and only if defendant No.5 by cogent and satisfactory evidence proves that purchase money flew from her, then only the burden shifts on the plaintiff to disprove the same. Ex.D.68 is the original sale deed in respect of counter claim schedule property. In Ex.D.68, there is no recital to indicate that sale consideration has been paid by defendant No.5 and not by purchaser. On the other hand, recital contained therein clearly indicate that the sale consideration has been paid by the purchaser to the vendor. Further, on this ground alone, it cannot be presumed that the purchase money came from the account of defendant No.5. The defendant No.5 has not produced any document to show the source from which the purchase money came. The defendant No.5 has not produced any document to show as to how much salary she was drawing at or about the time of acquisition of the written statement schedule property. There is no evidence on the part of the defendant No.5 as to whether she was in possession of self- 74 O.S.3452/1991 money and if so, where she had kept the money. Thus, there is neither pleading nor evidence on the part of defendant No.5 with regard to the source from which the purchase money came. As observed by the Hon'ble Supreme Court in Valliammal's case, the source from where purchase money came is one of the most important test for determining whether the sale transaction standing in the name of one person is in the reality for the benefit of another. The defendant No.5 has neither pleaded nor adduced any evidence as to the source from where the purchase money came. The plaintiff has produced Ex.P.15 to P.17 to show that he was employed in NGEF Ltd.,
46. DW.1 in the cross-examination at page No.16, para 12 has stated that in the year 1974, plaintiff was working as an Electrician in NGEF and he does not know his monthly salary in the year 1974. DW.3 in her cross-examination at para 15 has stated that she had paid the sale consideration of Rs.5,000/- for sale deed dated 13.9.1974 (Ex.D.68) and she was not present at the time of registration of the sale deed Ex.D.68 and she handed over the sale consideration of Rs.5,000/- to S.Lakshminarasimha Shetty in Hulikar on 20.9.1974. But the recitals of the Ex.D.68 goes to show that consideration has been paid on the date of registration of the sale deed i.e., on 13.9.1974. Therefore, defendant No.5 has failed to prove that she paid sale consideration of Rs.5,000/- to the vendor. 75 O.S.3452/1991
47. PW.1 in para 11 of his affidavit evidence dated 14.6.2016 has stated that he was employed in the year 1970 and purchased the counter claim schedule property from his earnings. The said fact has not been denied in the cross- examination. PW.1 in para 13 of the cross-examination has stated that in the year 1970 he joined as an Electrician in NGEF based upon the ITC course and he was drawing the salary in a sum of Rs.220/- approximately and in the year 1978, he got married. The above said evidence goes to show that the plaintiff was employed in NGEF as an Electrician as on the date of sale deed Ex.D.68 and he was not married then. The defendant No.5 has produced the original sale deed which is at Ex.D.68 in respect of the counter claim schedule property. The defendant No.5 claims that she has purchased the counter claim schedule property and therefore she is in possession of the title deeds. The plaintiff contended that himself, defendant No.5 and other family members were residing in the Cottonpete house together and defendant No.5 has taken away the registered sale deed. Looking to the close relation of the parties, the contention of the plaintiff appears to be proper and acceptable. The defendant No.5 has not got produced the revenue paid receipts of counter claim schedule property. She has produced only one revenue paid receipt Ex.D.71 and it is dated 14.9.2017 for the years 2017-18. The said document has come into existence during 76 O.S.3452/1991 the pendency of the present suit. Defendant No.5 has not produced the revenue paid receipts of the period prior to the date of filing the suit from the date of purchase of the property to show that she is in possession of the said property. The counter claim schedule property is an agricultural property. The RTC of the said property is at Ex.D.70 which shows the mutation of the name of plaintiff in column No.9 as owner and possessor of the said property. The name of the plaintiff is also mentioned in Column No.12 as a cultivator. Therefore, I hold that defendant No.5 has failed to prove that she has purchased the counter claim schedule property in the name of plaintiff. Accordingly, I answer issue No.5 in the negative.
48. Issue No.6 :- During the course of arguments, the learned counsel appearing for plaintiff fairly submitted that plaintiff is not able to prove the existence of 'C' schedule property. Therefore, the question of claiming any share does not arise. Schedule 'A' property is the property of Dr.G.N.Ramachandraiah. Therefore, the sons and daughters of Dr.G.N.Ramachandraiah are having equal share in the said property. The item Nos.1 to 3 of schedule 'B' property are the separate properties of defendant No.1 and she, during her lifetime has bequeathed / transferred and gifted the said properties. Therefore, item Nos.1 to 3 of schedule 'B' properties are not available and plaintiff is not entitled to any share in 77 O.S.3452/1991 those properties. The plaintiff is not entitled to any reliefs with regard to Will Ex.D.3, Sale Deed Ex.D.9 and Gift Deed Ex.D.46 as he has failed to prove that they are void and not binding on him. The plaintiff is entitled to 1/10th share in schedule 'A' property. Issue No.6 is answered accordingly.
49. Issue No.7: In view of the above discussion, I proceed to pass the following;
ORDER The suit of the plaintiff is partly decreed. The plaintiff is entitled to partition and separate possession of his 1/10th share in plaint 'A' schedule property.
The defendant No.2, 4 to 8 and 10 are also entitled to 1/10th share each in schedule 'A' property.
The defendant No.3(a) and 3(b) together entitled to 1/10th share in schedule 'A' property.
The defendant No.9(a) to 9(c) are together entitled to 1/10th share in schedule 'A' property.
The suit of the plaintiff in respect of item Nos.1 to 3 of Schedule 'B' properties is dismissed.
The counter claim of defendant No.5 is
dismissed.
78 O.S.3452/1991
The parties are directed to bear their own
costs.
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, the same is corrected, signed and then pronounced by me in the open Court on this the 10th day of August, 2018).
(SHIVASHANKAR B. AMARANNAVAR) Principal City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of the Plaintiff:
PW-1 Sri. G.R. Balaraj. PW-2 Smt. G.R. Lakshmikanthamma. PW-3 Sri. G.R. Kodandarama. PW-4 Sri. Sadananda.
List of Documents marked on behalf of the Plaintiff:
Ex.P-1 Original partition deed dated: 10.3.1966. Ex.P-2 Original mortgage deed dated: 10.12.1969. Ex.P-3 Redemption of mortgage deed dated: 24.7.1975. Ex.P-4 Certified copy of Sale deed dated: 2.1.1969. Ex.P-5 Certified copy of registered sale deed dt: 9.7.1962. Ex.P-6 Certified copy of encumbrance dated: 9.1.2002. Ex.P-7 Certified copy of encumbrance certificate. Ex.P-8 Certified copy of house tax demand register extract pertaining to item No.1 of plaint 'B' schedule Ex-P-8(a) Certified copy of sale deed dated 6.6.1975. Ex.P-9 Certified copy of gift deed dated 13.2.1992.
Ex.P-10 Certified copy of the sale deed dated: 16.10.1985
Ex.P-11 Copy of Legal notice
Ex.P-12 Reply notice.
Ex.P.13 Certified copy of the index of lands.
Ex.P.14 Certified copy of mutation register extract.
Ex.P.15 Memo dt.27.5.1996 issued by NGEF Ltd.,
Ex.P.16 Service Certificate dt.31.5.1996 issued by NGEF Ltd.
Ex.P.17 Final Bill for voluntary retirement
79 O.S.3452/1991
List of Witnesses examined on behalf of Defendants:
DW-1 G.R. Sathyanarayana DW-2 Smt. G.R. Ambuja DW-3 Dr. G.R.Shamala DW-4 C.S. Selvarathinam
List of Documents marked on behalf of Defendants:
Ex.D-1 Sale deed dated: 9.7.1962 Ex.D-2 Khata endorsement. Ex.D-3 Registered Will. Ex.D-4 Tax paid receipt Ex.D-5 Katha Certificate Ex.D-6 to P.8 Encumbrance certificates Ex.D-9 Certified copy of the sale deed Ex.D-10 Original possession certificate Ex.D-11 Pass book
Ex.D-12 to D-43 Receipts for having repaid the loan.
Ex.D-44 Relevant pass book
Ex.D-45 Certified copy of the sale deed
Ex.D-46 Gift deed
Ex.D-47 to D.53 Tax paid receipts
Ex.D.54 to D-64 RTC extracts
Ex.D-65 Mutation Extract
Ex.D-66 Original Sale deed dated: 6.6.1975
Ex.D-67 Original Sale deed dated: 6.1.1979
Ex.D.68 Original Sale Deed dt.13.9.1974
Ex.D.69 Receipt Patta Book
Ex.D.70 RTC of Sy.No.366/1
Ex.D.71 Revenue paid receipt.
Ex.D.72 The photocopy of the badge of DW.4 issued
by HAL Factory.
Ex.D.73 Disability assessment certificate of Deft.No.8
issued by Mallige Medical Centre.
Ex.D.74 Medical Certificate dt.29.1.2003 of defendant
No.8 issued by Jain Institute of Vascular
Sciences.
Ex.D.75 Lost article report issued by Police Sub-
Inspector Malleswaram P.S., Bengaluru.
Ex.D.76 Photocopy of disclaimer affidavit SHIVASHANKAR
dt.19.2.1968. BASAPPA
AMARANNAVAR
(SHIVASHANKAR B. AMARANNAVAR) Digitally signed by
SHIVASHANKAR BASAPPA
Principal City Civil & Sessions Judge, AMARANNAVAR *pst/- Bengaluru. DN: cn=SHIVASHANKAR BASAPPA AMARANNAVAR,ou=HIGH COURT OF KARNATAKA,o=GOVERNME NT OF KARNATAKA,st=Karnataka,c =IN Date: 2018.08.15 12:57:52 IST