Bangalore District Court
Smt.Sharadamma vs Smt.Shankaramma on 9 June, 2020
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT:
Dr. KASANAPPA NAIK.
M.A., LL.M., Ph.D.
XLI Addl. City Civil & Sessions Judge
Dated this the 9th day of June, 2020
O.S.No.5011/2012
PLAINTIFF : Smt.Sharadamma
W/o Late.Boraiah
Aged about 75 years
Residing at No.2
2nd Cross Road, 4th Main Road
S.R.Nagar
Bangalore560 027
(By Sri.N.B.Shankarappa, Advocate)
V/s.
DEFENDANTS : 1. Smt.Shankaramma
W/o Late.Nagaraj
Aged about 46 years
2. Smt.M.B.Leelavathi
D/o Late Boraiah
Aged about 53 years
3. Smt.Pushpavathi
D/o Late.Boraiah
Aged about 51 years
2 OS.5011/2012
Since deceased by LRs
a) K.N.Mahesh
S/o Late.Neelaiah
Aged about 25 years
R/at No.239/1, 4th Main, 5th Cross
6th Phase, Mahaganapathinagar
Rajajinagar
Behind Pride Pavilion Apartment
Bangalore560 010
4. Shankar
S/o Late Boraiah
Aged about 46 years
5. Devaraj
S/o Late Boraiah
Aged about 40 years
6. Smt.B.N.Rukmini
W/o Late.M.S.Siddaraju
Aged about 40 years
7. M.S.Murthy
S/o Late Siddaiah
Aged about 33 years
All the defendants are
R/at No.2, 2nd Cross Road
4th Main Road, S.R.Nagar
Bangalore560 027.
(D1, 2, 5 to 7 By Sri.S.Prabhu,
D3 & 4 By Sri.H.N.Ramesh, Advocates)
Date of Institution of the Suit: 16.07.2012
Nature of the suit
3 OS.5011/2012
(Suit on Pronote, suit for Partition, separate
declaration & possession, suit possession & injunction
for injunction)
Date of commencement of 09.09.2015
recording of evidence:
Date on which the Judgment 09.06.2020
was pronounced:
Total Duration: Year/s Month/s Day/s
07 10 23
JUDGMENT
This suit is filed for the relief of partition of suit schedule property and allot plaintiff's legitimate 1/6 th share with separate possession by metes and bounds, further for an order of injunction directing the defendants not to alienate/encumber/create charge over the suit schedule property, till the disposal of the suit and to award costs of the suit.
2. The facts of the case are as under:
The plaintiff is the mother of defendants No.2, 3, 4 and 5 and wife of Late.Boraiah. Defendant No.1 is the daughterinlaw of plaintiff and Late.Boraiah. Late.Boraiah 4 OS.5011/2012 and father of defendant No.7 - Late.Siddaiah were the brothers. Defendant No.6 is the daughterinlaw of said Siddaiah. The plaintiff claims that her husband Boraiah during his lifetime, purchased the House property bearing New No.2, Old No.14, measuring extent of 30 X 30 feet, coming under Bruhat Bengaluru Mahanagara Palike (BBMP) Ward No.77, Old PID No.7772 situated at No.2, 2nd Cross Road, 4th Main Road, S.R.Nagar, Bangalore560 027 (herein after 'suit property' for short) under sale deed dated 08.02.1962. Said Boraiah during his lifetime constructed ground floor, 1st floor and 2nd floor in the suit property and was residing along with his family members.
It is alleged that the defendants No.6 and 7 have no right, title and interest in the suit property. The plaintiff and defendants No.1 to 5 constitute Hindu Joint Family. After the death of Boraiah, the plaintiff and defendants No.1 to 5 are in joint possession and enjoyment of suit property. It is alleged that after the death of her husband, the plaintiff demanded her share in the suit property, but defendants 5 OS.5011/2012 have not obliged the same. Said Boraiah died on 26.09.2010 and Siddaiah died on 15.10.1991. The defendant No.3 died during the pendency of the suit and her legal heir Sri.K.M.Mahesh was brought on record. Thus, cause of action arose and suit is filed for the relief referred above.
3. The defendants No.1, 2, 5 to 7 on the one hand, whereas defendants No.3 and 4 on the other, have filed their respective joint written statement.
4. The defendants No.1, 2, 5 to 7 in their written statement have admitted the relationship between the parties, but denied all other claim and allegations. After the death of Boraiah, plaintiff and defendants succeeded to the estate of Late.Boraiah. As per them, said Boraiah has executed the Will dated 25.03.2010 and same was suppressed by the plaintiff. As per them, the suit property is not self acquired property of Late.Boraiah. Said Boraiah 6 OS.5011/2012 and his elder brother Late.Siddaiah's family constituted joint family and suit property was purchased under the joint efforts of Boraiah and his brother Siddaiah. Due to the love and affection, the suit property was registered in the name of Boraiah and this fact is mentioned in the Will. The building on the suit property was constructed by the joint efforts of Boraiah and his brother Siddaiah. As per them, the plaintiff has not approached the Court with clean hands. The plaintiff has only right to claim maintneance from her husband and children under Section 22 of Hindu Adoption and Maintenance Act, 1956 or under Section 125 of Cr.P.C. The plaintiff never alleged that her husband never looked after her during his lifetime or that her children defendants No.2 to 5 have deserted her or not providing basic amenities for livelihood. As per them, the plaintiff and defendants No.1 to 5 are never in joint possession and enjoyment of suit property. The said Boraiah executed the Will dated 25.03.2010 and divided the suit property into two parts making Schedule I and II. 7 OS.5011/2012 The I Schedule consists of ground floor, first floor and second floor as per the last desire of Boraiah. The first portion towards eastern side was allotted to his sons namely, deceased 1st son Nagaraju's family consisting of his wife and her two children, who would get entire ground floor of the I Schedule and entire first floow would be fallen to the share of 2nd son M.B.Shankar/defendant No.4 and entire second floor is fallen to the share of 3 rd son M.B.Devaraj/defendant No.5. The II Schedule, which was constructed towards share of his elder brother Siddaiah consists of ground floor, first floor and second floor. Entire ground floor has been allotted to the share of his brother Siddaiah's son namely, Siddaraju, who was predeceased him and his share was allotted to his wife Smt.Rukmini/defendant No.6 and children Kiran and Sushma. The second floor has been allotted equally to his deceased brother's son Sri.Murthy(defendant No.7) and legal representatives of Siddaraju i.e. Smt.Rukmini and children Kiran and Sushma. The suit property is not a self 8 OS.5011/2012 acquired property of Boraiah, which was built in two portions and partitioned under said Will. The khatha of the share of heirs of Siddaiah was transferred in their names. It is further contended that in view of said Will the respective beneficiaries are in possession of Schedule I and II of the property and khatha has been changed and tax being paid to the concerned authorities and therefore, the plaintiff cannot pay fixed Court Fee under Section 35(2) of Karnataka Court Fee and Suit Valuation Act, 1958. The suit is liable to be dismissed for nonjoinder of necessary parties.
5. The defendants No.3 and 4 in their written statement have admitted all the material claim of the plaintiff and almost consented the claim of the plaintiff. They stated that said Boraiah during his lifetime constructed ground, first and second floor in the suit property and that no partition effected in the suit property so far. They alleged that defendant No.1, 2 and 5 have 9 OS.5011/2012 colluded with defendants No.6 and 7 and have illegally got changed the khatha of the suit property in their names and said khatha has no any validity under law. They contended that they being coparceners of Late.Boraiah, the plaintiff and defendants No.1 to 5 are entitled to share in suit property. They also stated that said Boraiah has not executed any document in favour of anyone impliedly denying the execution of Will by Boraiah. They have stated categorically that suit property is exclusively belonging to family members of Late.Boraiah and that defendants No.6 and 7 have no right in the suit property. Thus, defendants No.1, 2, 5 to 7 have prayed to dismiss the suit and defendants No.3 and 4 have prayed to dispose off the suit in accordance with law.
6. On the basis of the above pleadings, the following issues have been framed:
1) Whether the plaintiff proves that suit schedule properties were self 10 OS.5011/2012 acquired properties of her husband Late.Boraiah?
1) Whether the defendants prove that, on 22.03.2010 the deceased Boraiah had executed the Will in their favour? (Recasted Issue No.1)
2) Whether the defendants prove that the suit schedule properties are self acquired properties of Boraiah and Siddaiah?
3) Whether defendants prove that
suit schedule Boraiah had
executed Will 22.03.2010?
4) Whether the defendants prove
that suit is bad for nonjoinder of
necessary parties?
5) Whether defendants No.1, 2 and
5 to 7 prove that suit is not
properly valid and court fee paid
is insufficient?
6) Whether the plaintiff is entitle for
reliefs as sought for?
7) What order or decree?
11 OS.5011/2012
7. In support of her claim, the plaintiff examined herself as PW1 and produced documents as per Ex.P.1 to P.27 in evidence. On the other hand, the defendants No.5 and 6 examined themselves as DW1 and DW2 respectively and examined one witness as DW3 and produced in all 25 documents as per Ex.D.1 to D.25.
8. I have heard the learned counsel for the parties and perused the materials on record.
9. My findings to the above issues are as under:
Recasted Issue : In the affirmative
No.1 and Issue
No.6
Issue No.2 to 5, : In the negative
Issue No.7 As per the final order,
for the following
12 OS.5011/2012
REASONS
10. RECASTED ISSUE No.1, ISSUE NOs.2 TO 6:
Since these issues are interconnected with each other, they are taken together for common discussion in order to avoid repetition of facts and evidence.
11. The learned counsel for the plaintiff argued that there is sale deed to show that Boraiah has purchased the suit property for valuable consideration and when this is so, it is doubtful whether said Boraiah executed Will in this case. The learned counsel submitted that after the death of Boraiah, his wife and children being classI heirs, are entitled to inherit the property left by him. It is further argued that Will propounded by defendants is full of suspicious circumstances as said Boraiah has not made any provision for his wife regarding her maintenance. It is further argued that it is there on the record that there was no quarrel between Boraiah and plaintiff and they were 13 OS.5011/2012 living cordially. Thus, when the Will was surrounded by suspicious circumstances, the same cannot be accepted.
The defendants have not produced documents to show that suit property was purchased by Boraiah and Siddaiah together. Thus, prayed to decree the suit. In support of his arguments, the learned counsel for the plaintiff relied upon the following decisions reported in:
1) 2017(1) AKR 327 (Arjun Basappa
Kumatagi v. Smt.Gangawwa)
2) 2017(2) AKR 142 (Channabasappa
Shivappa Sannanagashetti and others v.
Ningavva Shivappa Sannanagashetti and others)
3) AIR 2009 SC 1389 (Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria and others)
4) 2010 AIR SCW 3131 (Balathandayutham and another v. Ezhilarasan) 14 OS.5011/2012
12. On the other hand, the learned counsel for the defendants No.1, 2, 5 to 7 contended that the sons of Boraiah themsleves admitted that suit property was purchased by joint efforts of Boraiah and his elder brother Siddaiah and such being the case, the plaintiff cannot contend that it is the self acquired property of Boraiah alone. The evidence on hand clearly indicate that Will produced by the defendants is genuine document and executed out of free will of Boraiah. The defendants have complied the provisions of Section 63 of Indian Succession Act, 1925 and so also by examining one attesting witness, they have even complied provisions of Section 68 of Indian Evidence Act. There is no evidence to disbelieve the evidence of DW3, who is attesting witness. Thus, contended that the plaintiff has failed to establish her case with the help of relevant oral and documentary evidence and whereas, the defendants have produced voluminous oral and documentary evidence to indicate that the suit property was joint family property of Siddaiah and Boraiah 15 OS.5011/2012 and consequently, the suit of the plaintiff was liable to be dismissed and thus prayed to dismiss the suit. In support of the arguments, the learned counsel for the defendants No.1, 2, 5 to 7 has relied upon the following decisions reported in:
1) 2007 (4) KCCR 2363 (K.S.Basavarajappa and another v. Veerabhadrappa)
2)2010 (4) KCCR 2587 (DB) (B.Y.Narasimha Prasad v. Smt.H.S.Saraswathi)
3) AIR 1964 MP 168 (Gowardhan Sheocharan and others v. Smt.Gangaba)
4) AIR 2006 Bom. 351 (Smt.Janabai Ramchandra Barge v. Mahadeo Manyaba Barge (Since deceased through LRs) and others)
5) AIR 1982 Ker. 137(Pachi Krishnamma v. Kumaran Krishnan)
6) 2004(4) ALD 889 (Paka Venkaiah v. Taduri Buchi Reddy and others)
7) 2017(2) KAR.LR. 580 (Veerabhadrayya and another v. Mytra bai W/o Rachayya Mallikarjunmath)
8) ILR 1987 KAR 1751 (K.R.Ramaswamy Rao v.
Prema Bai) 16 OS.5011/2012
9) AIR 1955 SC 363 (Naresh charan Das Gupta v. Paresh Charan Das Gupta)
10) AIR 2007 Ker 77 (Jose s/o Immatty Anthony v. Ouseph and others)
11) AIR 1971 SC 2236 (Smt.Sushila Devi v.
Pandit Krishna Kumar Missir and others)
12) AIR 1969 SC 1147 (M.L.Abdul Jabbar Sahib v. H.Venkata Sastri and sons and others)
13) AIR 1955 SC 346 (Girja Datt Singh v.
Gangotri Datt Singh)
13. Keeping in mind the rival submissions, I carefully perused the materials on record. In this case, as I already narrated, PW1 has filed his evidence affidavit narrating material facts of the plaint. PW1 has deposed categorically that her husband was exclusive owner of suit property and after his death, herself and defendants No.1 to 5 are entitled to 1/6th share each in the suit property. She also deposed that she has filed the suit when the defendants refused to partition the suit properties. She has also deposed categorically that the Will profounded by the 17 OS.5011/2012 defendants is a created document and the same is unregistered Will and not a genuine document. The plaintiff in support of her case, has produced the documentary evidence. Ex.P.1 is certified copy of sale deed dated 08.02.1962 executed by Sri.Ganga Naidu S/o G.Gurappa Naidu selling suit property i.e. Site No.14, which is formed in Sy.No.25/1 of Sampigehalli Village. Further, Ex.P.2 is khatha certificate of suit property standing in the name of Boraiah, who is husband of plaintiff, Ex.P.3 is khatha extract dated 13.01.2009, which was also standing in the name of Boraiah. Ex.P.4 is tax paid receipt in the name of Boraiah, Ex.P.5 is death certificate of Boraiah, who died on 26.09.2010, Ex.P.6 is encumbrance certificate also standing in the name of Boraiah with respect to suit property as on 17.11.2004. This document is for the period 01.04.2004 to 08.02.2012. Ex.P.7 is certified copy of sale deed dated 29.03.1951 executed by Cheluvappa in favour of T.H.Krishnappa, whereunder, the suit property was sold for Rs.2,000/. 18 OS.5011/2012 Ex.P.8 is certified copy of sale deed dated 13.06.1960 executed by said T.H.Krishnappa in favour of G.Ganga Naidu S/o Gurappa Naidu with respect to suit property. It is seen that under Ex.P.1, said Boraiah purchased the suit property from this Ganga Naidu. Ex.P.9 is certified copy of mortgage deed dated 29.09.1965 executed by Boraiah S/o Siddaiah (husband of plaintiff), in favour of Sundar Sa S/o H.Paru Sa and the document reveals that earlier, the said Boraiah leased the suit property to said Sundar Sa for Rs.2,500/ on 08.02.1962 and Ex.P.9 was executed for Rs.1,000/, apart from earlier amount of Rs.2,500/ for construction of house by Boraiah. Ex.P.10 is certified copy of discharage deed dated 14.05.1975, whereunder, the property was discharged by Boraiah by paying Rs.2,500/ to Sundar Sa. Ex.P.11 to P.24 are tax paid receipts and Ex.P.25 is Discharge Certificate, whereunder, Boraiah being member of Textile Cooperative Bank Ltd., Devanga Market, Jumma Masjid Road, Bengaluru has paid his entire loan borrowed by him under simple mortgage deed 19 OS.5011/2012 dated 23.10.2000 and the property was discharged. The property mortgaged was nothing but suit property. Ex.P.26 is copy of complaint filed by plaintiff before the S.R.Nagara Police Station against defendants No.6 and 7 and her son inlaw Shamanna.
14. A careful reading of this documentary evidence, clearly goes to show that the husband of plaintiff Boraiah was exclusive owner of suit property and he has dealt with the properties independently. The defendants though taken a contention that though Boraiah and his brother Siddaiah jointly purchased the suit property, but there is no evidence to establish the same. It is there in the evidence that said Siddaiah is elder brother of Boraiah and when this is so, normally, the property would be purchased in the name of elder brother, if at all there was cordial relationship between both the brothers.
20 OS.5011/2012
15. The PW1 was crossexamined by learned counsel for the defendants, wherein she has stated that Siddaiah died around 1415 years back. Though she has stated that she does not know in which year the house was constructed, but as I already indicated, there is mention by Boraiah in Ex.P.9 that the property was mortgaged by Boraiah to construct house. She has deposed that her fatherinlaw and motherinlaw were owning nearly 4 acres of land and that a portion of Siddaiah was sold by him. She has denied that she has filed false case at the instance of defendants No.3 and 4. She has even denied that Siddaiah and Boraiah have constructed the house and residing therein and she has even denied that her husband/Siddaiah purchased the suit property in his name as she has even denied that as per the same, her husband has executed the Will.
16. On the other hand, the defendant No.5 Devaraj has also filed his evidence affidavit as DW1 and 21 OS.5011/2012 narrated material facts of joint written statement filed by himself and defendants No.2, 5 to 7. He deposed categorically that suit property was jointly purchased by his father and his uncle Siddaiah and sale deed was registered in the name of his father, who is younger brother of Siddaiah. As per him, this fact is reflected in the last Will executed by Boraiah. He also deposed that suit property was constructed with the joint efforts of his father Late.Boraiah and his uncle Siddaiah. He deposed that the plaintiff was aware of all these facts and filed this false suit. He also deposed that the suit property was partitioned as per the averments of the Will. Ultimately, he deposed that himself and soninlaw of Boraiah were the witnesses to the Will and that one Sri.Prabhu, Advocate has drafted the Will at the instruction of Boraiah. As per him, the Will was read over to Sri.Boraiah and who, after admitting the contents, has signed the Will in their presence and then, they have affixed their signature in the presence of Boraiah. He deposed that after execution of Will by Boraiah, the same 22 OS.5011/2012 was handed over to him and it was in his custody and that after the death of Boraiah, he has handed over the Will to defendant No.6. Even this witness produced documentary evidence. Ex.D.1 is the election identity card of defendant No.7. Ex.D.2 is election identity card of husband of defendant No.6 namely, M.S.Siddaraju. Ex.D.3 is election identity card of defendant No.6 - Rukmini. Ex.D.4 is photograph said to have been taken during House Warming Ceremony. Ex.D.5 is death certificate of Gowramma W/o Siddaiah, who died on 15.10.1991. Ex.D.6 is Death Certificate of Siddaiah, who died on 19.04.1996. Ex.D.7 is Death Certificate of husband of defendant No.6 M.S.Siddaraju, who died on 21.05.2001. Ex.D.8 is Death Certificate of Boraiah, which is already produced by plaintiffs. Ex.D.9 is unregistered Will dated 25.03.2010 said to have been executed by Boraiah in favour of defendant No.1 to 7 with respect to suit property, Ex.D.9(a) is signature of Boraiah. Ex.D.10 is ration card of defendant No.6 and 7. Ex.D.11 is receipt executed by husband of 23 OS.5011/2012 defendant No.6 namely, M.S.Siddaraju in favour of one Sri.P.D.Sunny for having received Rs.15,000/ towards house rent advance. Ex.D.12 is khatha certificate with respect to suit property standing in the name of defendants No.6 and 7. Ex.D.13 is khatha extract in the name of defendants No.6 and 7, Ex.D.14 is notice issued by BBMP dated 27.03.2012 for having permitted transfer of khatha in favour of defendants No.1 to 7 as per the portions mentioned in the Will. Ex.D.15 to D19 are tax paid receipts in the name of defendants No.6 and 7 with respect to suit property. Ex.D.20 is khatha Certificate with respect to suit property standing in the name of defendant No.5. Ex.D.21 is khatha extract in the name of defendant No.5. Ex.D.22 is 25 photographs. Ex.D.23 is CD of said photographs.
17. DW1 was subjected to crossexamination by the learned counsel for the plaintiff, wherein, he has denied that suit property was self acquired property of his father. 24 OS.5011/2012 He was not even knowing whether suit property was vacant site or house at the time of purchase by his father. But, he admits that from 1962, all the documents of suit property are standing in the name of his father. He has maintained that his father and his senior uncle have jointly constructed the building in the suit property, but he deposed that he does not know how they constructed. He admits that his father had mortgaged the suit property in Textile Cooperative Bank. He has admitted that on 17.11.2004 his father repaid the loan and there is discharge in the name of his father. He also admitted that prior to that, his father had mortgaged the suit property in favour of H.B.Sundar Rao. He has admitted that there was proper relationship between his parents. He has even admitted that his father was properly looking after his mother and that there was no difference of opinion between them. He has denied that in the suit property, his mother and her 5 children have equal right. Though he stated that there is document to show that his father and senior uncle 25 OS.5011/2012 were living jointly, but no such document has been produced in this case. He has denied that his father has not executed Ex.P.9/Will and that himself and children of his senior uncle have created the same. For a question that why his father has not given any share to his wife, the witness answered that they will lookafter her. He admitted that he was there with his father, while executing the Will and that after executing the Will, his father handed over the Will to him. He has denied that himself and defendant No.6 have created Will to avoid giving share to his mother. He admits that his elder brother Nagaraju died prior to death of his father. He has given clear admission that from the beginning, his parents were in cordial terms. He has denied that the signatures Ex.D.9(a) to (h) are not the signatures of his father. As per him, his brotherinlaw Shamanna and his father went to the office of Advocate. He also admits that his mother has not signed the Will as attestor. Ultimatley, he has given the admission that his father was the absolute owner of the suit property. 26 OS.5011/2012
18. Further, even defendant No.6 has filed her evidence affidavit narrating material facts of the written statement jointly filed by them. She has given evidence in the line of evidence given by DW1. She has also deposed categorically that Late.Boraiah executed the Will in favour of his legal heirs and legal heirs of his Late brother Siddaiah. She deposed that in view of the Will, the respective beneficiaries are in settled possession of Schedule I and II of properties.
19. DW2 has also produced documentary evidence. Ex.D.24 is original RC book in the name of Siddaiah S/o Siddaiah. Ex.D.25 is original cumulative record in the name of M.S.Siddaraju. In both these documents, the address is shown as No.2, 2nd Cross, 4th Main Road, Sampangiramnagar.
27 OS.5011/2012
20. The defendants also examined S.Shamanna S/o Siddaiah as DW3, who is husband of defendant No.6. He is attesting witness to the Will and given evidence by filing affidavit that his fatherinlaw Boraiah was hale and healthy and he was in a sound state of position and executed the Will. He also deposed that himself and third son of Boraiah namely, M.B.Devaraj/defendant No.5 were the witnesses to the Will. The witness identified his signature on the document, which is Ex.D.9(j). He has identified the sigantures of Boraiah, which are Ex.D.9(a) to
(h). The signature of defendant No.5 is marked as Ex.D.9(i) and finally, the signature of the scribe Advocate Sri.Prabhu is marked as Ex.D.9(k).
21. In the crossexamination by the learned counsel for the plaintiff, it is elicited that he is retired PSI. He admits the relationship between the plaintiff and her husband was cordial. The plaintiff was depending upon the income of her husband and her children. He deposed that 28 OS.5011/2012 himself and Boraiah went to the office of Advocate. He deposed that when they went to the office of Advocate, the Will was ready. He has denied that Boraiah was not having sound disposing state of mind at the time of execution of Will. He has denied that himself and defendants have got created the Will after the death of Boraiah in order to avoid giving share to plaintiff in the suit property. He has even denied that the signature purported to be of Boraiah on the Will, is not belongs to him.
22. Thus, a careful perusal of the oral and documentary evidence available on hand reveal that the defendants contended that Boraiah and Siddaiah have together purchased the suit property and constructed the house by joint labour. But, as I already narrated, based on the documents that suit property was purchased only by Boraiah and name of Siddaiah has nowhere been mentioned in the sale deed. Admittedly, the defendants have not produced any documents to show that Siddaiah 29 OS.5011/2012 contributed to purchase the suit property and so also to construct the same. The defendants are heavily banking upon Ex.D.9 alleged to have been executed by Boraiah. The Will Ex.D.9 was seriously disputed by the plaintiff. The learned counsel for the plaintiff has seriously argued that Boraiah was aged about 7580 years at the time of his death and if alleged signature is perused, the same create suspicion considering the clarity of handwriting. The learned counsel contend that the man aged about 7580 years if affixes his signature, definitley there will be hand shaking and it is not possible to affix signature so neatly. The learned counsel also contended that there is evidence on record to show that Boraiah and plaintiff were in cordial terms and Boraiah has nowhere made any arrangement for the maintenance of his wife, which creates serious dispute. I have carefully perused the Will Ex.D.9, wherein, except acknowledging that plaintiff is his wife, there is nothing mentioned about the maintenance of plaintiff. This fact create suspicion regarding genuineness of Will. The 30 OS.5011/2012 Hon'ble High Court of Karnataka in Arjun Basappa Kumatagi's case (supra) has held as under:
"Succession Act S.63 - Will - Suspicious circumstances - Plaintiff claiming title of landed property on basis of Will executed by deceased owner in favour of plaintiff - Deceased and his wife (defendant) not having any issues - No reasons forthcoming in alleged Will for deceased excluding his wife from being bequeathed any share in property - No provision made for her livelihood in Will - Neither case that either wife of deserted husband during his lifetime nor she was not looking after him property or there was enmity between two - Due execution fo Will not proved by plaintiff beyond suspicion - Plaintiff not entitled to declaratory relief."
23. Thus, even in this case, there is clear evidence that there was no dispute between Boraiah and his wife/plaintiff and even Boraiah has also not mentioned any reasons for excluding his wife from being bequeathing any share in the suit property. Said Boraiah has not even 31 OS.5011/2012 made any provision for livelihood of his wife/plaintiff. It is not the case of the defendants that Boraiah deserted plaintiff during his life time nor there is any allegation that plaintiff was not looking after Boraiah properly or that there was any enimity between the two. Therefore, there arise serious suspicion shrouded around the Will and the defendants have not produced any cogent evidence to dispel the said suspicion. Further, the Hon'ble High Court of Karnataka in Channabasappa Shivappa Sannanagashetti's case (supra) has held as under:
"B) Succession act (39 of 1925) S. 63 -
Execution of Will - Suspicious circumstances - Will fraudulently prepared by procuring stamp papers - Executor not providing any property of his only son -
Suspicious circumstances involved execution of Will - Execution of Will, not proved."32 OS.5011/2012
24. Thus, the Hon'ble High Court of Karnataka in the above said decision has held that, Shivappa in that case, did not provide any property to his only son namely, the father of defendant No.2 and 3 and the said circumstance was held as suspicion circumstances.
25. The facts of the case involved in decision of Hon'ble Supreme Court in Balathandayutham case (supra) is also applicable to the facts of the case on hand. In the above said decision, not making any provision in the Will for the appellant therein, the other son of the testator was held as one of the suspicion circumstance. Thus, even in this case, I find that nonmaking of any provision for the wife of Boraiah/plaintiff, which is strongest suspicion circumstance, which creates serious doubt about genuineness of Will/Ex.D.9. Further, in this case, DW3, who claimed to be one of the attesting witness to the Will in the crossexamination has stated that when they went to 33 OS.5011/2012 office of Advocate, the Will was ready, which goes to show that the Will was not executed in the presence of this witness. Thus, the evidence on hand reveal that there are suspicion circumstances in execution of Will and there is no clear evidence to show as to why Boraiah has not made any provision for his wife/plaintiff. There is no reason forthcoming as to why Boraiah did not take signature of his wife, if at all he has executed the Will in favour of defendants. Therefore, I find that it is not safe to accept the Will, which is suspicious document. I have carefully perused the decision relied upon by the learned counsel for the defendants, but in view of facts and circumstances of the case, the said decisions are not applicable to the facts of the case on hand. The plaintiff based on documentary evidence has clearly established that the suit property is self acquired property of her husband Late.Boraiah. As I already indicated, the defendants have not produced any document to show that the suit property is jointly acquired by Boraiah and his elder brother Siddaiah. The defendants 34 OS.5011/2012 failed to establish through cogent evidence that Will/Ex.D.9 was executed by Boraiah on 22.03.2010.
26. In this case, the defendants have taken up a contention that suit is bad for nonjoinder of necessary parties, but a careful perusal of written statement of defendants No.1, 2, 5 to 7 indicate that the defendants have not stated who are the necessary parties and whom the plaintiff has not made as parties. The said averment in the written statement is baseless and even in the evidence also the defendants have not stated who are the other parties ought to have joined in the suit. Therefore, it is to be held that the defendants have failed to prove Issue No.4. In the same way, the defendant in para No.15 of the written statement have stated that the Court Fee paid under Section 35(2) of the Karnataka Court Fees and Suit Valuation Act, is bad in law, but the defendants have not disclosed what was the court fee ought to have been paid 35 OS.5011/2012 by the plaintiff. Therefore, there is no evidence produced by the defendants to prove Issue No.5.
27. Thus, on careful perusal of entire oral and documentary evidence, it is seen that the plaintiff has established with the help of oral and documentary evidence that the suit property is self acquired property of her husband Boraiah and when such being the case, she is entitled for 1/6th share in the schedule property being classsI heir of deceased Boraiah as per the schedule to the Hindu Succession Act, 1956. Further, the defendants No.1, 2, LRs of defendant No.3, defendants No.4 and 5 are entitled for 1/6th share each in the suit property and hence the suit has to be decreed. Hence, Recasted Issue No.1 and Issue No. 6 are answered in the affirmative and Issue No.2 to 5 are answered in the negative.
28. ISSUE NO.7: In view of my findings on above said issues, I proceed to pass the following : 36 OS.5011/2012
ORDER The suit of the plaintiff is decreed with costs.
The plaintiff, defendants No.1, 2, LRs of defendant No.3, defendants No.4 and 5 are entitled for partition and separate possession of their 1/6th share each in the suit property by metes and bounds. Draw preliminary decree accordingly. (Dictated to the Judgment Writer, transcribed and typed by her, thereafter corrected and then pronounced by me in the open court, on this the 9th day of June, 2020).
(Dr.KASANAPPA NAIK ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 37 OS.5011/2012 ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Sharadamma
b) Defendants' side:
D.W.1 Devaraj
D.W.2 B.N.Rukmini
D.W.3 S.Shamanna
II.List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 C/c of sale deed dated 08.02.1962 Ex.P.2 Khatha Certificate Ex.P.3 Khatha extract Ex.P.4 Tax paid receipt Ex.P.5 Death Certificate of Boraiah Ex.P.6 Encumbrance certificate Ex.P.7 C/c of sale deed dated 29.03.1951 Ex.P.8 C/c of sale deed dated 13.06.1960 38 OS.5011/2012 Ex.P.9 C/c of mortgage deed dated
29.09.1965 Ex.P.10 C/c of Discharge Mortgage Deed dated 14.05.1975 Ex.P.11 to 24 Tax paid receipt Ex.P.25 Discharge Certificate dated 16.11.2004 Ex.P.26 Police complaint Ex.P.27 Acknowledgement
b)Defendants' side :
Ex.D.1 Election card of defendant No.7 Ex.D.2 Identity card of husband of defendant No.6 Ex.D.3 Identity card of defendant No.6 Ex.D.4 Photo of House Warming Ceremony Ex.D.5 Death Certificate of Gowramma Ex.D.6 Death Certificate of Siddaiah Ex.D.7 Death Certificate of M.S.Siddaraju Ex.D.8 Death Certificate of Boraiah Ex.D.9 Original Will dated 25.03.2010 39 OS.5011/2012 Ex.D.9(a) to Signatures
(k) Ex.D.10 Ration card Ex.D.11 Receipt Ex.D.12 Khatha Certificate Ex.D.13 Khatha Extract Ex.D.14 Notice by BBMP dated 27.03.2012 Ex.D.15 to 19 Tax paid receipts Ex.D.20 Khatha Certificate Ex.D.21 Khatha Extract Ex.D.22 25 Photos Ex.D.23 CD Ex.D.24 Original RC Book Ex.D.25 Original cumulative record (Dr.KASANAPPA NAIK ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 40 OS.5011/2012 41 OS.5011/2012