Bangalore District Court
Master Suhas S vs Sri. K.S.Nagaraj on 15 September, 2020
1
O.S.No. 2567/2011
IN THE COURT OF THE XXX ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH.31)
DATED THIS THE 15 th DAY OF SEPTEMBER 2020
PRESENT:
SRI. MAANU K.S., B.Sc., LLB.
XXX Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.NO.2567 /2011.
PLAINTIFF/S : 1. Master Suhas S,
S/o N.Subramanya,
Aged about 9 years.
2. Master Hemanth S.,
S/o N.Subramanya,
Aged about 4 years.
No.1 and 2 are minors
Represented by their mother
and natural guardian
Smt.R.Rajeshwari,
W/o N.Subramanya,
Aged about 35 years,
R/a No.171/3,
7th 'A' Cross, Thyagarajanagar,
Bengaluru-560 038.
(By Pleader Sri.M.Maheshwarappa,
Adv.)
/VS/
DEFENDANT/S: 1. Sri. K.S.Nagaraj,
S/o Late Subbanna,
Since deceased rep.by his Lrs.
1(a). Smt.K.H.Prabhavathamma,
W/o Late K.S.Nagaraj,
Aged about 71 years,
R/at No.104, 6th Main,
Thyagarajanagar,
Bengaluru-560 028.
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O.S.No. 2567/2011
1(b). Smt.Subbalakshmi,
W/o Kush Raj,
Aged about 52 years,
R/at Kamakya Theater Road,
9th Cross, Kathriguppe,
Bengaluru.
1(c). Smt.Lakshmi,
W/o Nagaraj,
Aged about 42 years,
R/at "Kaveri Nilaya",
Saibaba Temple Road,
N.R.Colony,
Bengaluru-560 028.
2. Sri.N.Subramanya,
S/o K.S.Nagaraj,
Aged about 49 years,
R/at No.171/3,
7th 'A' Cross, Thyagarajanagar,
Bengaluru-560 028.
3. Sri.N.Vishwanath,
S/o K.S.Nagaraj,
Aged about 34 years,
R/a No.104, 6th Main, 3rd Block,
8th Cross, Thyagarajanagar,
Bengaluru -560 028.
4. Sri.Sudarshan,
S/o R.Kanakaraj,
Aged about 32 years,
R/a No.42, 6th Cross,
Hanumaiah Layout, Kodihalli,
Bengaluru -560 092.
(By Pleader Sri. B.G., Adv. for D1 to 3
Sri.H.M.D., Adv. for D.4)
*****
3
O.S.No. 2567/2011
DATE OF INSTITUTION : 06-04-2011.
NATURE OF THE SUIT (Suit on : Suit for
Pronote, Suit for declaration and Partition & Separate
Possession, Suit for injunction, etc.) possession.
DATE OF THE COMMENCEMENT
OF RECORDING OF THE EVIDENCE : 12-01-2015.
DATE ON WHICH THE JUDGEMENT
WAS PRONOUNCED : 15-09-2020.
TOTAL DURATION YEAR/S MONTH/S DAY/S
09 05 09
(MAANU K.S.),
XXX ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
4
O.S.No. 2567/2011
JUDGEMENT
1. This is a suit for partition and separate possession of the plaintiffs' 1/3rd share each over the suit schedule property and for permanent injunction along with the costs of the proceedings.
2. The brief facts of the case of the plaintiffs are as follows:
(a). It is the case of the plaintiffs that the 1 st defendant happened to be their grandfather, 2nd defendant is their father and 3rd defendant is their paternal uncle. That the suit schedule property originally belonged to one Smt.Rangamma who happened to be the mother of the 1st defendant, grandmother of the defendants No.2 and 3 and great grandmother of themselves and she purchased the same through a registered sale deed dtd.08-07-1959 and was in possession and enjoyment of the same till her death. That during her lifetime, she had executed a registered Will dtd.08-06-1988 bequeathing the suit schedule property in favour of the defendants No.1 to
3 and died on 25-08-1989. After her demise the defendants No.1 to 3 have become the absolute owners in possession and enjoyment of the suit schedule property by recording khatha transferred to their names and have constructed a residential building having ground + 3 floors.
5O.S.No. 2567/2011
(b). It is their further case that while executing the registered Will dtd.08-06-1988, Smt.Rangamma, the mother of the 1st defendant and the grandmother of the defendants No.2 and 3 has incorporated a clause to the effect that the defendants No.1 to 3 will have only life interest and they shall have no manner of right, title or interest either to alienate or encumber the schedule property in favour of anybody except enjoying the fruits of the schedule property and despite having the knowledge about the said clause, the defendants No.1 to 3 have entered into a registered agreement of sale dtd.21-04-2010 agreeing to sell the suit schedule property in favour of defendant No.4 for a sale consideration amount of Rs. 70 lakhs in contravention of the non-alienation clause mentioned in the registered Will executed by Smt.Rangamma. As per the said Will, they have got equal share over the schedule property and the defendants No.1 to 3 had no manner of right, title or interest either to alienate or encumber the schedule property and as such, the said sale agreement is not binding on them. Therefore, immediately after getting the knowledge about the same, they have approached this Court seeking for partition and separate possession of their 1/3rd share each over the schedule property and for permanent injunction and prayed to decree the suit with costs.
6O.S.No. 2567/2011
3. After service of summons, the defendants No.1 to 3 appeared through a common Advocate and filed their common written statement almost admitting the entire plaint averments including the rights of the plaintiffs over the suit schedule property and conceded to decree the above suit by granting the appropriate relief while setting up another sort of defence as against defendant No.4 without even making any counter claim against defendant No.4. In their written statement, they have mainly set up a defence against the 4th defendant contending that they have constructed the house over the suit schedule property by raising hand loans from the friends and relatives and to repay the said loans, they approached a person by name Sri.Vijaya Kumar @ S.K.S.Shastry and one Sri. N. Srinivasachar and sought for a financial assistance of a sum of Rs. 10 lakhs and offered the suit schedule property as a security for the repayment of the said loan at which point of time, the said persons introduced a private money lender by name Sri.R.Kanaka Raju and his son, who is the 4 th defendant herein, who agreed to lend a sum of Rs. 11 lakhs as loan to them on 19-08-2009 upon the condition that they shall issue blank signed cheques and blank signed stamp papers and since they were in dire need of the money, they agreed for the same and received a sum of Rs. 5 lakhs by way of cash on 19- 08-2009 and after 7 months i.e. on 20-04-2010, the father of the 4th defendant called them to receive the 7 O.S.No. 2567/2011 balance sum of Rs. 6 lakhs on next day subject to the condition that they shall execute an agreement of sale as a security for the amount borrowed by them and further assured that the said agreement will not be misused at any circumstances, at which point of time, they have executed an Agreement of Sale owing to their dire need of money and the 4th defendant after paying a sum of Rs.5 lakhs to them further assured that he will pay the balance amount of Rs. 1 lakh shortly. It is their further defence that they have been forced to enter into an Agreement of Sale only as a collateral security for repayment of loan and when the draft Agreement of Sale was given to him, the amount shown was Rs. 11 lakhs only, but at the time of registration of the same, the defendant No.4 and his father ventured to knock of the valuable property by playing fraud on them by showing that a huge amount of Rs. 37,80,000/- has been received by them as advance sale consideration and fixing the total sale consideration at Rs. 70 lakhs which they never received.
4. By further making several allegations against the 4 th defendant regarding the fraud, mis-representation, etc. they tried to contend that on 18-08-2010 the defendant No.4 and his father visited their house and paid the balance sum of Rs.1 lakh and without making any endorsement on the said registered sale agreement took the signature of the 1st defendant on 8 O.S.No. 2567/2011 the back portion of the said sale agreement despite their resistance to do so and thereafter, the 4 th defendant has manipulated the said document by making endorsements stating that the time stipulated for execution of the sale deed is extended till 31-03- 2011 and as such, they disputed the said sale agreement in its entirity by further contending that the same was executed only as a security for the repayment of the loan of Rs. 11 lakhs borrowed by them and that they are willing to repay the said sum of Rs. 11 lakhs to the 4th defendant, but the 4th defendant has not come forward to execute the cancellation deed of agreement pertaining to the suit schedule property and as such, they prayed for disposal of the above suit by granting appropriate relief to them. However, no specific prayer has been sought by them in the form of counter claim against the 4th defendant nor they have paid any Court Fees.
5. After his appearance, the 4th defendant has filed a separate written statement admitting the relationship of the plaintiffs with the defendants No.1 to 3 and also the ownership of the defendants No.1 to 3 over the suit schedule property including the ownership of late Smt.Rangamma and also the execution of the registered Will dtd.08-06-1988 by the said Smt.Rangamma in favour of defendants No.1 to 3, but denied the allegations that the defendants No.1 to 3 have executed the sale agreement in his favour by 9 O.S.No. 2567/2011 forgetting the non-alienation clause mentioned in the Will dtd.08-06-1988 and further contended that the aforesaid restrictions imposed by Smt.Rangamma in the registered Will dtd.08-06-1988 regarding the rights of defendants No.2 and 3 to alienate the suit schedule property is hit by the provisions of Sec.10 to 13 of Transfer of property Act, 1882 and therefore, the same is null and void and the same cannot be enforced. He further contended that the defendants No.1 to 3 have got every right to sell the suit schedule property in his favour and accordingly, they have entered into a registered sale agreement with him for a sale consideration of Rs. 70 lakhs on 21-04-2010 and have received an advance amount of Rs. 47,80,000/- agreeing to complete the sale transaction within 4 months from the date of agreement by receiving a balance sale consideration amount of Rs. 22,20,000/- and when they did not come forward to execute the sale deed, he demanded them to execute the same by receiving the balance sale consideration amount, at which point of time, the defendants in collusion with the minor plaintiffs herein represented by the wife of the 2nd defendant have got this frivolous suit filed against him only with an intention to stall the execution of the sale deed in his favour and to harass him and thereby to make unlawful gain. He further contended that the plaintiffs have got no manner of right, title or interest over the suit schedule property and there is no cause of action for 10 O.S.No. 2567/2011 them to file the above suit and the suit is not properly valued and the Court Fees paid in insufficient and sought for dismissal of the suit.
6. On the basis of the rival contentions taken up by the respective parties, the following issues have been framed by my Learned predecessor in office for disposal of the case:
ISSUES
1.Whether the plaintiffs prove that under the Will dtd.08-06-1988 the defendants No.1 to 3 had only life interest in the schedule property?
2.Whether the plaintiffs prove that they have got equal share in the schedule property?
3.Whether there is cause of action for the suit?
4.Whether the valuation of the suit is proper and Court Fees paid is sufficient?
5.Whether the plaintiffs are entitled for the reliefs claimed?
6.What order or decree?
7. In order to substantiate the case made out by the plaintiffs, the mother and natural guardian of plaintiffs got examined herself as P.W.1 and got marked the documents as per Ex.P.1 to P.10. On the other hand, the defendants No.1 to 3 have examined defendant No.2 as D.W.1 and closed their side evidence. The defendant No.4 examined himself as D.W. 2 and got marked one document as Ex.D.1 and 11 O.S.No. 2567/2011 closed his evidence. Thereafter, the case was posted for arguments.
8. I have heard the arguments of the counsel for the plaintiffs. In spite of granting sufficient opportunity, the counsel for defendants No.1 to 3 has not addressed his arguments, hence, the arguments on the side of the defendants No.1 to 3 was taken as nil.
But later, the counsel for defendant No.3 has filed a written arguments along with three decisions. The counsel for the defendant No.4 has filed his written arguments with decisions. Perused the written arguments and the decisions relied by the counsels for the defendants No.3 and 4 and the materials on record.
9. My findings on the above issues are as follows:
Issue No.1: In the negative.
Issue No.2: In the negative.
Issue No.3: In the negative.
Issue No.4: In the affirmative. Issue No.5: In the negative.
Issue No.6: As per the final order for the following:
REASONS
10. ISSUES NO.1:- The relationship of the plaintiffs with the defendants No.1 to 3 as shown in Ex.P. 4 Genealogical Tree is not in dispute. It is an admitted 12 O.S.No. 2567/2011 fact that late Smt.Rangamma happened to be the mother of the 1st defendant, grandmother of the defendants No.2 and 3 and great grandmother of the plaintiffs herein. It is also not in dispute that originally the suit schedule property belonged to late Smt.Rangamma having purchased the same through a sale deed dtd.08-07-1959 which is marked as Ex.P.
7. It is also not in dispute that as on the date of filing the suit, the khatha of the suit schedule propety is standing in the joint names of defendant No.2 and 3 as per Ex.P.3 and defendants No.1 to 3 were paying the tax to BBMP as per Ex.P.1 and P.2. Construction of the building over the suit schedule property as per Ex.P.5 is also not in dispute.
11. Execution of a registered Will dtd.08-06-1988 by late Smt.Rangamma as per Ex.P. 6 in respect of the suit schedule property bequeathing the same in favour of the defendants No.1 to 3 has also not been disputed by any of the defendants. However, the defendant No.4 has specifically contended that though the execution of the Will is not disputed by any one, there is a bar for relying on the alleged Will as per Sec.68 of Indian Evidence Act, 1872 if the said Will is not proved by examining at least one of the attesting witnesses to the said Will in terms of Sec.68 of Indian Evidence Act, 1872 and since the plaintiffs have not complied the mandatory provisions of Sec.68 of The Indian Evidence Act, the said Will marked as Ex.P.6 13 O.S.No. 2567/2011 cannot be relied by the plaintiffs for any purpose and this Court cannot look into the said Will.
12. He further contended that even if it is presumed that Ex.P.6 Will dtd. 08-06-1988 is proved based on the admissions made by the parties, then also the said bequest itself is void as per Sec.114 of The Indian Succession Act, 1925 in view of the existence of a Clause in the said Will imposing absolute restraint against the defendants No.1 to 3 and their successive generations without absolute vesting of rights on any person at any point of time, thereby rendering the whole bequest void. During the course of his written arguments, the counsel for defendant No.4 while quoting the relevant provision of Sec.114 of The Indian Succession Act, 1925, under the caption Rule against perpetuity which states that "No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.", has further argued that since there is no vesting of absolute right at any point of time in favour of a person living at the time of testator's death, there is a breach of prohibition contained under Sec.114 of The Indian Succession Act, 1925, and therefore, the said Will dtd.08-06- 1988 marked as Ex.P. 6 is a void document and 14 O.S.No. 2567/2011 cannot be looked into by this Court and relied on a decision of the Hon'ble High Court of Karnataka rendered on 27-02-2020 in the matter between Smt.Gowramma & others and Smt.Padmamma & others in RFA No.19/2013 c/w WP No.35239/2013 (GM-CPC).
13. On the other hand, the counsel for the defendant No.3 in his written synopsis tried to contend that the title to the suit schedule property vests with the plaintiffs and that the defendants No.1 to 3 had no right to alienate the property except enjoying the usufructs of the estate and since the plaintiffs were not born as on the date of the Will, a life estate has been created in favour of defendants No.2 and 3 under the said Will, which is a valid bequest and relied on the decision reported in AIR 1965 SC 1323 in the matter between Ramachandra Shenoy & another Vs. Mrs.Hilda Brite & others, AIR 1989 AP 34 in the matter between Puli Bandala Venkatasubbanna & Others Vs. Devasani Chinnapanayya & another and AIR 2004 SC 2665 in the matter between F.M.Devaru Ganapathi Bhat Vs. Prabakar Ganapathi Bhat.
14. Admittedly, the plaintiffs have not ventured to prove the due execution of the Will dtd.08-06-1988 in terms of Sec.68 of Indian Evidence Act, 1872 by examining any of the attesting witnesses of the same as witnesses in this case. Except marking the said Will 15 O.S.No. 2567/2011 as Ex.P. 6 through P.W. 1 who happened to be the next friend of the minor plaintiffs and reiterated the plaint averments, the mandatory requirements of Sec.68 of Indian Evidence Act, 1872 has not been complied by the plaintiffs. Even though the execution and existence of the Will has not been denied by any of the parties to the proceedings, it is the bounden duty of the propounder of the said Will or the parties relying on the said Will to prove the due execution of the same in terms of Sec.68 of Indian Evidence Act, 1872 as rightly contended by the defendant No.4 in the written arguments placed before this Court. Unless the due execution of Ex.P. 6 Will is proved, none of the parties can rely on the terms of the said Will nor this Court can look into the terms of the said Will as held by the Hon'ble Supreme Court and various High Courts in plethora of decisions. Therefore, on the sole ground of non-examination of any of the attesting witnesses to the said Will itself, the case of the plaintiffs must fail apart from answering issue No.1 the negative as the entire case of the plaintiffs is dependent on the Will dtd. 08-06- 1988.
15. That apart as rightly contended by defendant No.4, for the sake of arguments, even if it is held that Ex.P. 6 Will can be looked into without proving the same in terms of Sec.68 of Indian Evidence Act, 1872 based on the admission of the parties, then also perusal of 16 O.S.No. 2567/2011 Ex.P. 6 Will, discloses that the bequest is hit by the Rule against perpetuity enumerated under Sec.114 of The Indian Succession Act rendering the said bequest as null and void. No doubt, under the said Will late Smt.Rangamma had bequeathed the suit schedule property in favour of defendants No.1 to 3 by creating a life interest in favour of defendant No.1 and after his death upon the defendants No.2 and 3, but imposed restrictions on defendants No.2 and 3 also from alienating or creating any charge over the suit schedule property perpetually without vesting the absolute rights in them at any point of time as could be seen at pages No. 2 and 3, which reads as follows:
ನನನ ಉಯಲನ ಅಥವವ ಮರಣ ಶವಸನದ ಪಪಕವರ ನನನ ಮರಣವನನತರ ಸದರ ಸಸತತತ ಅನದರರ ನನನ ಸಸಯವರರತವವದ ಆಸತ ಮನರ ನನನ11, 2 ನರನ ಅಡಡ ರಸರತ, ಸಸರವಷಷ ಪರನಟರ, ಬರನಗಳಳರತ 560 053 ರ ಮನರಯತ (ಮಹಡಯಯ ಸರನರದನತರ) ನನನ ಮರಣ ನನತರ ಈ ಮನರಯನದ ಬರತವ ಉತತನನಗಳಳ ನನನ ಒಬಬನರನ ಮಗನವದ ಕರ.ಎಸ. ನವಗರವಜತ ಮತತತ ಆತನ ಇಬಬರರನ ಗನಡತ ಮಕಕಳವದ ಹರಯಮಗ ಎನ.ಸತಬಪಹಹಣಣ ಮತತತ ಕರಯ ಮಗ ಎನ.ವಶಸನವಥರವರತ ಅನತಭವಸತಕಕದತದ. ಅಲಲದರನ ಅವರಗಯ ಸಹ ನನನ ಮನರಯನತನ ಮನಲನವರತ ಅಥವವ ಯವರತ ಯವವವದರನ ರನತಯಲಯಲ ಯವರಗಯ ಯವವ ಸಮಯದಲಯಲ ಪರಭವರರ, ಕಪಯ, ಅಡಮವನ, ಭರಯನಗಣ, ಆಧವರ, ವಗರಗರರ ಇತವಣದಗಳನತನ ಮವಡಲತ ಹಕಕರತವವದಲಲ. ಹವಗರ ನನನ ಮಗ ನವಗರವಜತ ಮತತತ ಆತನ ಮಕಕಳಳ ಸತಬಪಹಹಣಣ ಮತತತ ವಶಸನವಥರವರತ (ಅನದರರ ನನನ ನನತರದ ಅಧಕವರದನದ) ಇವರಗತವ ಸಹ ನನನ ಸಸಯವರರತವವದ ಮನರಯನತನ ಅನದರರ ನನನ11, 2 ನರನ ಕವಪಸತ, ಸಸರವಷಷ ಪರನಟರ, ಬರನಗಳಳರತ.53 ಇನದನ ವಳವಸದ ಮನರಯನತನ ಯವರಗಯ ಅಡಮವನ, ಪರಭವರರ, ಕಪಯ, ಭರಯನಗಣ, ಆಧವರ, ವಗರಗರರಗಳಳ ಮವಡಲತ ಅಧಕವರವರತವವದಲಲ (ಹಕಕಲಲ).
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17O.S.No. 2567/2011 ಅಲಲದರ, ನನನ ಮಗನ ಮರಣವನನತರ ಆತನ ಇಬಬರರನ ಗನಡತ ಮಕಕಳವದ ಎನ. ಸತಬಪಹಹಣಣ (ಹರಯಮಗ) ಮತತತ ಕರಯ ಮಗನವದ ಎನ.ವಶಸನವಥ ಮವತಪವರನ ಆ ಮನರಯ ಪಪತರ ಹಕತಕದವರರವಗರತತವತರರ. ಆದರಯ ಅವರಯ ಸಹ ನನನ ಸಸಯವರರತ ಸಸತವತದ ಮನರಯ (ಮಹಡಯಯ ಸರನರದನತರ) ಉತತತತಯತ ಮವತಪ ಅನತಭವಸಬಹತದರನ ವನಹ ಅವರಗಯ ಸಹ ಯವವ ವಧವವಗಯಯ, ಯವವ ಸಮಯದಲಯಲ ಸಹವ ಪರಭವರರ, ಕಪಯ, ಅಡಮವನ, ಭರಯನಗಣ, ಆಧವರ, ವಗರಗರರ ಇತವಣದಗಳನತನ ಮವಡಲತ ಹಕಕರತವವದಲಲ. ಈ ಸಸತತತ ಅಥವವ ನನನ ಮನರಯನತನ ವನಶಪವರನಪಯರವವಗ ಅನತಭವಸಕರಯನಡತ ಬರತಕಕದತದ.
16. The above said recitals found in Ex.P.6 makes it clear that there is a restriction on the absolute rights of the beneficiaries under the Will, thereby creating only a life interest in favour of the beneficiaries, who were living on the date of death of testator i.e. defendants No.1 to 3 and also in favour of successors in the interest of defendants No.2 and 3 who were not yet born and not even existed as on the date of death of the testator Smt.Rangamma which is in clear contravention of prohibition imposed under Sec.114 of The Indian Succession Act, 1925, rendering the bequest itself void and as such, the same cannot be looked into for any purpose. In this regard, it is relevant to quote the decision relied by the counsel for the defendant No.4 rendered by the Hon'ble High Court of Karnataka on 27-02-2020 in the matter between Smt.Gowramma & others and Smt.Padmamma & others in RFA No.19/2013 c/w WP No.35239/2013 (GM-CPC), wherein at paragraph No.17, it has been observed and held by the Hon'ble High Court of Karnataka as follows:
18O.S.No. 2567/2011 "It is further provided expressly that the property would be enjoyed in perpetuity ('Vamshaparamparyavagi') by successive generations without absolute vesting of rights in any person at any point of time. It has been reiterated that any sale of the schedule property if made, would not convey any right.
...........
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In the present case, as there is no vesting of absolute right at any point of time, clearly, the vesting of the thing bequeathed is postponed in perpetuity and accordingly, the bequest itself would be void as being impermissible in light of the mandate of Section 114 of The Indian Succession Act, which provides "no bequest is valid", if there is a breach of the prohibition contained.
The 'Rule against perpetuity' embodies the principle of public policy and is stated to have taken note of various apprehensions which affect, free trade of property, optimum development of property till vesting occurs and postponement of vesting for large periods of time leading to uncertainty as regards succession amongst the heirs amongst other justifiable causes.
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The intention of the testator as reflected in the bequest, of postponing vesting indefinitely is in violation of the 'Rule against perpetuity' engrafted in Sec.114 of the Indian Succession Act and accordingly, the bequest is void and permits of no effort by courts to save the bequest. The bequest 19 O.S.No. 2567/2011 being void, the exercise of rights by the children as reflected in Exhibit-P1 cannot be found fault with, as rights have flowed to the sons and daughters of late L.Rangappa as per the rule of succession which right has been asserted by execution of sale deed in favour of defendant No.5.
17. The above said decision relied by the defendant No.4 clearly applies to this case as the facts and circumstances of this case and the facts and circumstances of the above case are similar. On the other hand, the decisions relied by the counsel for the defendant No.3 are not applicable to the case on hand as two of the said decisions are with respect to Sec.13 and 20 of Transfer of Property Act, which dealt with the transfer for the benefit of unborn person by means of execution of Settlement Deed and Gift Deed and the facts of the said cases are entirely different to the case on hand. The other decision relied by the counsel for defendant No.3, though relates to the Will, the same is also not applicable as the facts and circumstances of the said case also different to the facts and circumstances of the present case.
18. Therefore, from the above said cited decision relied by the counsel for defendant No.4, it is clear that there cannot be any bequest in violation of Sec.114 of The Indian Succession Act, 1925. As such, when the bequest itself is void, it cannot be held that defendants No.1 to 3 had only life interest in the 20 O.S.No. 2567/2011 schedule property and that the plaintiffs accrued right over the suit schedule property by virtue of the said recitals found in Ex.P. 6 quoted above. Therefore, there is no hesitation for this Court to hold that plaintiffs have miserably failed to prove the due execution of the Will dtd.08-06-1988 and that under the said Will, the defendants No.1 to 3 had only life interest in the schedule property. Accordingly, I answer issue No.1 in the negative.
19. ISSUES NO.2, 3 and 5:- Since these issues are interconnected with each other, to avoid repetition of averments and appreciation of evidence, these issues are taken up together for discussion.
20. It is the specific case of the plaintiffs that since defendants No.1 to 3 had only the life interest in the property as per the recitals found in Ex.P. 6-Will executed by late Smt.Rangamma, the defendants No.1 to 3 had no manner of right, title or interest to alienate or encumber the suit schedule property in favour of anybody muchless to enter into an agreement of sale with defendant No.4 and since a right has been created in their favour under Ex.P. 6 to the effect that after the lifetime of defendants No.1 to 3, the suit schedule property shall vest with them and the legal heirs of defendant No.3, they have got equal right, title and interest over the suit schedule property and are entitled to get their share over the 21 O.S.No. 2567/2011 same. This Court while answering issue No.1 in the negative, has clearly held that the plaintiffs have failed to prove the due execution of Ex.P. 6 Will as required under Sec.68 of Indian Evidence Act, 1872 and that the bequest under the said Will made by late Smt.Rangamma is hit by Sec.114 of The Indian Succession Act, 1925 rendering the said bequest void and that under the said Will, the defendants No.1 to 3 have not acquired any right or life interest over the suit schedule property as contended by the plaintiffs. Since the bequest itself is void, neither the defendants No.1 to 3 had acquired absolute right over the suit schedule property nor the plaintiffs can claim any right of beneficiaries as legatees under the said Will.
21. Since the suit schedule property happened to be the absolute property of late Smt.Rangamma, the mother of deceased 1st defendant, in the absence of testamentary succession, the only scope for the plaintiffs to acquire their right over the suit schedule property is by way of intestate succession. Though it is proved that deceased Smt.Rangamma passed away in the year 1989 itself, as per Ex.P. 9 death certificate, the recitals of Ex.P. 6 reveals that late Smt.Rangamma was survived by not only the 1st defendant, but also by some of her daughters who have not been made as parties to this suit. Presuming for the sake of arguments that the 1st defendant alone was only legal heir of late Smt.Rangamma, then also by virtue of 22 O.S.No. 2567/2011 intestate succession under Secs.15 and 16 of The Hindu Succession Act, 1956, the 1 st defendant alone became the absolute owner of the suit schedule property. In view of the death of 1 st defendant during the pendency of this suit, his Class-I legal heir including defendants No.2 and 3 alone had the right to succeed to the suit schedule property by virtue of Sec.8 of The Hindu Succession Act, 1956 and at no stretch of imagination, it can be held that the plaintiffs being the children of the 2nd defendant, who is still alive, have succeeded to the suit schedule property during his life time. Hence, this Court is of the opinion that no right has been accrued in favour of the plaintiff over the suit schedule property and there is no cause of action for them to file this suit.
22. Moreover, perusal of the nature of the defence set up by the defendants No.1 to 3 coupled with the admission made by P.W.1 during her cross- examination to the effect that she along with the plaintiffs are happily residing with the 2 nd defendant in the suit schedule property and that there is no quarrel between herself and the 2nd defendant, makes it clear that the present suit is a collusive suit filed in collusion with defendants No.1 to 3, who have set up the plaintiffs to file the suit against themselves only with an intention to avoid the execution of the sale deed in favor of defendant No.4 in terms with Ex.D.1 Sale Agreement relied by defendant No.4.
23O.S.No. 2567/2011
23. Though the defendants No.1 to 3 have set up a separate defence against defendant No.4 contending that the defendant No.4 has obtained a sale agreement in his favour by playing fraud, mis- representation, etc., since the defendant No.4 has already filed a suit in O.S.No.3120/2013 for specific performance of contract which is pending on the file of CCH-76, the defence set up by the defendants No.1 to 3 against defendant No.4 cannot be taken in to consideration and this Court cannot express its opinion about the due execution of Ex.D.1 and its enforceability in this proceedings as the same is the subject matter of the said suit and no issue pertaining to the execution of the said agreement of sale and its enforceability has been framed in this suit.
24. Viewed from any angle, the plaintiffs have failed to prove that they have got a right of succession over the suit schedule property giving raise to a cause of action to file this suit and that they have got an equal share over the suit schedule property. Hence, the plaintiffs are not entitled for any reliefs claimed in this suit. Therefore, there is no hesitation for this Court to answer all these three issues in the negative. Accordingly, I answer issues No.2, 3 and 5 in the negative.
24O.S.No. 2567/2011
25. ISSUE NO.4:- Though the defendant No.4 has contended that the plaintiffs have not properly valued the suit and the Court Fees paid is insufficient, absolutely no material has been placed by him to show that the suit is not properly valued and the Court Fees paid is insufficient. On the other hand, the plaintiffs by contending that they are in joint possession of the suit schedule property, have valued the suit under Sec.35(2) of The Karnataka Court Fees and Suits Valuation Act, 1958 and have paid fixed Court Fees which is proper and correct. Therefore, without much discussion, this Court proceeds to answer issue No.4 in the affirmative.
26. ISSUE NO.6:- In view of my above discussion and findings on the above issues, the suit of the plaintiffs is liable to be dismissed. Accordingly, I proceed to pass the following:
ORDER The suit of the plaintiffs is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this THE 15 th DAY OF SEPTEMBER 2020).
(MAANU K.S.), XXX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
25O.S.No. 2567/2011 ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W.1 Smt.R. Rajeshwari.
WITNESSES EXAMINED FOR THE DEFENDANTS/S:
D.W.1 Sri.N.Subramanya. D.W.2 Sri.Sudharshan K.
DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 & P.2 Tax paid receipts.
Ex.P.3 Assessment Register Extract.
Ex.P.4 Genealogical Tree.
Ex.P.5 Sanction plan.
Ex.P.6 Will dtd.08-06-1988.
Ex.P.7 Original Sale Deed dtd.08-07-1959.
Ex.P.8 Certified copy of Agreement of
Sale dtd.21-04-2010 .
Ex.P.9 Death Certificate.
Ex.P.10 Encumbrance certificate.
DOCUMENTS MARKED FOR THE DEFENDANTS/S:
Ex.D.1 Agreement of Sale dtd.21-04-2010.
(MAANU K.S.), XXX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.