Bangalore District Court
Smt. M.K. Sumitra vs Smt. M.K. Suchitra on 3 July, 2019
IN THE COURT OF THE LXIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT:SRI. SHUBHAVEER B., B.Com.,LL.B.
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
DATED: THIS THE 3RD DAY OF JULY, 2019
O.S.No.8066/2003
Plaintiff- Smt. M.K. Sumitra,
W/o H.S.Siddaraju,
Hindu,
Aged about 40 years,
Residing at No.1793,
7th Main, 'E' Block,
Rajajinagar 2nd Stage,
Bengaluru-10.
(By Sri. K.S.N.R.)
-VS-
Defendants: 1. Smt. M.K. Suchitra,
W/o Dayananda Sagar,
Hindu,
Aged about 45 years,
Residing at No.522,
8th Cross, 7th Block West,
Jayanagar, Bengaluru-80.
2 O.S.No.8066/2003
2. Dr. M.K. Sudarshan
S/o Late M. Kalappa,
Hindu,
Aged about 50 years,
Residing at No 192,
Block 19, Jeevan Mitra
(LIC) Apartments,
J.P.Nagar 1st Phase,
Bengaluru-78.
(D-1, by Sri.T.B.P,
D-2 by Sri.B.N.J )
Date of Institution of the suit : 11/11/2003
Nature of the suit : Partition & possession
Date of commencement of
recording of the evidence : 24/07/2008
Date on which the Judgment was
pronounced : 02/07/2019
Total Duration Years Months Days
: 15 07 22
(SHUBHAVEER B.)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
J U D G M E N T
The above suit is filed for partition and separate possession.
3 O.S.No.8066/2003
2. The brief facts of the case of the plaintiff are that the plaintiff and defendants are the children of Kalappa and his wife-Pramila. The said Kalappa died on 11.12.2002 intestate, leaving behind him the plaintiff and defendants, as his successors. The said Pramila predeceased Kalappa.
3. Father of plaintiff and defendants, namely- Kalappa, acquired suit 'A' schedule item No.1 property, i.e., residential property No.522 as well as suit schedule 'B' property, from and out of his own income.
4. The mother of the plaintiff and defendants, namely- Pramila, had acquired suit schedule 'A' item No.2 property, i.e., residential property No.423, from M/s. Ideal Homes Co- Operative Society. The said site was the self acquired property of the above said Kalappa and the said property nominally stood in the name of his wife- Pramila. The entire contribution was made by Kalappa to acquire the said site. After the death of the mother-Pramila, a consent was given by the plaintiff to change the 4 O.S.No.8066/2003 khatha of the suit schedule 'A' item No.2 property in the name of 1st defendant and to hold the same as a member of Hindu Undivided family. After the death of father and mother, the plaintiff and defendants succeeded to the suit schedule properties. The demand made by the plaintiff, by issuing legal notice, dated 13.06.2003 also, was of no use. Hence the above suit.
5. In the written statement of defendant No.1, except the relationship between the plaintiff and defendants, the 1st defendant has denied all the allegations made in the plaint. The 1st defendant contends that the movables that were in the family had been disposed of and dealt with during the lifetime of the father and none of the articles shown in the suit 'B' schedule property is in the hands of the 1st defendant.
6. It is further contended that so far as the item No.2- (A) of schedule property is concerned, the same has been disposed of by her mother, during her lifetime, by surrendering 5 O.S.No.8066/2003 the property and getting the possession certificate issued in favour of the 1st defendant and by execution of a will, dated 29.08.1984, wherein the mother has bequeathed the said property in favour of the 1st defendant. The said will was executed only for the purpose of confirmation of title, in order to avoid unnecessary controversy as the necessary proceedings for the purpose of allotment, namely- execution of lease-cum- sale deed, issuance of possession certificate. The said property, being made out in the name of the 1st defendant, which has taken place in between the Ideal Homes Co-operative Building Society and the 1st defendant. Hence the said property is self-acquired and personal property of the 1st defendant. After the allotment of suit schedule item No.1-B property, the mother had put up the construction therein.
7. Without prejudice to the contentions raised in the written statement, alternatively the 1st defendant has contended, in so far as suit 'A' schedule item No.1 is concerned, the plaintiff 6 O.S.No.8066/2003 will be entitled to only ½ share as the father of the plaintiff and defendants had executed a will, dated 23.09.1989, bequeathing his property in favour of the 1st defendant as well as the plaintiff. Therefore, the plaintiff has got ½ share in the said property. Hence prayed for dismissal of the suit and in the alternate, the suit schedule item No.1 (A) may be divided and half share may be given to the 1st defendant.
8. The 2nd defendant in his addl. written statement denied all the contentions taken by the 1st defendant, in her written statement. But the 2nd defendant has not denied the allegations made in the plaint. The 2nd defendant has contended that the father had founded a public charitable Trust mainly health foundation of which he was one of the founders and managing Trustees. Hence prayed to decree the suit and allot 1/3rd share to him.
9. In the rejoinder, the plaintiff has denied all the contentions taken by the 1st defendant, in her written statement 7 O.S.No.8066/2003 and contends that the father of the plaintiff had founded public charitable Trust, of which he was one of the founders and managing Trustees. Hence prayed for decreetal of the suit.
10. From the pleadings the following issues are framed-
1. Whether plaintiff proves the existence of the plaint schedule properties, which according to her are the joint family properties?
2. Whether the 1st defendant proves that she has become the absolute owner of the 2nd item in the plaint ''A' schedule, by virtue of a Will executed by her month on 29.08.1984, as contended?
3. Whether the 1st defendant proves the Will, dated 23.02.1989, executed by her father, M. Kalappa ?
4. Whether the plaintiff proves that she is in joint possession of the suit properties as claimed?
5. Whether the plaintiff is entitled to 1/3rd share in all the suit properties?
6. To what relief?
8 O.S.No.8066/2003
11. On behalf of the plaintiff, the plaintiff herself got examined as P.W.1, who deposes in accordance with the allegations made in the plaint. Ex.P1 to Ex.P7 are marked. The 1st defendant got herself examined as D.W.1, who deposes almost in accordance with the contentions taken by defendant No.1 in her written statement. Ex.D1 to Ex.D61 are marked. D.W.2, an attester to the will/Ex.D7, alleged to be executed by the mother-Pramila, mainly deposes with regard to execution of the will/Ex.D7 by said Pramila, when she was in sound and disposing state of mind, capable of understanding pros and cons, signing by this witness therein as Ex.D7(a), Pramila signed therein at Ex.D7(b) and another witness's signature therein is at Ex.D7(c). D.W.3, an attester of the will/Ex.D1, alleged to be executed by the father- Kalappa, mainly deposes with regard to the execution of the said will by said Kalappa, when he was of sound and disposing state of mind, capable of understanding the pros and cons, singing of the said will by Kalappa therein at Ex.D1(a), the signature of this 9 O.S.No.8066/2003 witness therein at Ex.D1(b). Defendant No.2 got himself examined as D.W.4, who almost deposes in accordance with the contentions taken by him in his addl. written statement, mainly deposes in his examination-in-chief that the mother- Pramila and father-Kalappa had not executed any will. Ex.D62 to Ex.D65 are marked.
12. The Asst. Director of FSL is examined as C.W.1, who opines that signature marked Ex.D7(b) and the signature found in Ex.D60 are not written by one and the same person. The signature marked at Ex.D7(b) is produced by means of imitation forgery and his report is marked Ex.C-1. Another Asst. Director of FSL is examined as C.W.2, who opines that all the documents are written by one and the same person and Ex.C-2 is marked. Arguments heard. Written arguments are also filed.
13. The answers to the above issues are-
Issue No.1 In the negative
Issue No.2 In the positive
Issue No.3 In the positive
Issue No.4 In the negative
10 O.S.No.8066/2003
Issue No.5 Partly positive
Issue No.6 As per final order, for the following-
REASONS
14. Issue Nos. 1 to 4 - Since these four issues are inter- related, the same are considered together. The admitted facts in this case are that the plaintiff and defendant No.1 are the daughters and defendant No.2 is the son of Kalappa, who died on 11.12.2002 and his wife, namely -Pramila, who died on 20.12.1984. It is also an undisputed fact that the suit schedule 'A' item No.1 property, i.e., residential property, bearing No.522, was purchased by the father/Kalappa. It is also an admitted fact that suit schedule 'A' item No.2 property, i.e., residential site No.423, was initially allotted to the mother of the plaintiff and defendants, namely- Pramila, by M/s. Ideal Homes Co-Operative Society ( hereinafter called as Society, for brevity)
15. Ex.D63, registered sale deed, dated 08.10.1993, shows father- Kalappa purchased suit schedule 'A' item No.1 property from BDA. With regard to suit schedule 'B' properties, 11 O.S.No.8066/2003 i.e., jewellery etc., absolutely there is no material with regard to existence of the said properties. Even there is no inventory to that effect. Hence it appears to the court that suit 'B' schedule properties were/are not in existence. Hence none of the parties to the suit is entitled to any share in suit 'B' schedule properties, i.e., jewelleries etc., It is also an undisputed fact that except plaintiff and defendants, there is no other legal heir to deceased Kalappa and his wife- deceased Pramila.
16. Even though the plaintiff contends that suit schedule 'A' item No.1 property, i.e., residential property No.522, was purchased by the father- Kalappa, who died intestate, the same is specifically denied by the 1st defendant. The 1st defendant contends that with regard to suit 'A' schedule item No.2 property, the father/Kalappa executed a will, bequeathing the said property in favour of plaintiff and defendant No.1 only, as per unregistered will, dated 23.02.1989. The 2nd defendant has denied the said contention of the 1st defendant. Even the 12 O.S.No.8066/2003 plaintiff has filed rejoinder and denied the said contention of 1st defendant.
17. With regard to execution of the will, by the father, dated 23.02.1989, the plaintiff/ P.W.1 in her cross-examination has specifically admitted, in page-8, by identifying the signature of Kalappa in the will-Ex.D1 and the said will/Ex.D1 was executed by her father, bequeathing the suit schedule item No.1 of 'A' property equally to plaintiff and the 1st defendant. D.W.3- attester of the said will/Ex.D1 deposes with regard to execution of the said will by Kalappa, signing of the said will by Kalappa in his presence and he identifies the signature of Kalappa in the said will at Ex.D1(a) and the signature of D.W.3 therein is marked as Ex.D1(b). Further D.W.3, in his examination-in-chief has specifically deposed that the said will was executed by Kalappa in his sound disposing capacity and knowing the pros and cons of the said will. Nothing is elicited in the cross-examination of either 13 O.S.No.8066/2003 D.W.1/defendant No.1, or D.W.3 to discard their evidence in that regard.
18. Ex.D1-unregistered will, reads as follows-
"WILL Whereas I am the absolute owner of house No.522, 8th cross, 7th Block-West, Jayanagar, Bengaluru city.
s is my last will and testament concerning the property described in the schedule, during the period of my life.
By way of this will, I want to bequeath my property mentioned in the schedule to the said Smt.M.K.SUCHITRA and Smt.M.K.SUMITHRA, daughters of Smt.M.Prameela and Sri.M.Kalappa. The property is to be equally shared with mutual consent and convenience.
The will executed by me this day will come into effect only after my death.
Schedule House No.522, 8th Cross, 7th Block-West, Jayanagar, Bengaluru -560082, bounded as follows-
East by : House No.521
West by : House No.523
North by : Road
South by : House No.527
14 O.S.No.8066/2003
Measuring East to West 40 feet and North to South 60 feet.
Witnesses:- Signature
sd/-( M. Kalappa )
Dated.23.2.89
(1) sd/- (S.Ananda Rao)
(2)(sd/- (B.N.Chandra Shekhar)"
19. There is no proper format for writing the will. In the said will/ Ex.D1 also it is specifically shown that suit 'A' schedule item No.1 property is bequeathed in favour of plaintiff and defendant No.1.
20. Even though the Asst. Director of FSL/C.W.2 opines that the signature marked Ex.D1(a) in the will and signatures found in Ex.D65- sale deed, i.e., Ex.D65(a) as well was the signatures found in Ex.D64, Ex.D64(a) to Ex.D64(i) are written by one and the same person; the evidence of C.W.2 cannot be accepted, because, in his cross-examination, he has clearly admitted "I have not mentioned the procedure followed by me in the report. I have taken assistance from my colleagues. I have 15 O.S.No.8066/2003 not mentioned how my assistants assisted me in preparing the report. I have discussed with my colleagues. The said discussion made with my colleagues is not mentioned in report. In respect of signatures, there is no hurdle to mention the same in the report.--
---- We have to compare the similarities admitted in the writing and dissimilarities as well as the similarities and dissimilarities in disputed writing. I have noted only in respect of similarities in the admitted as well as in the disputed signatures.------- The resolution of the photograph is very necessary to compare the signatures. I have not noted the resolution of photographs------- I have not identified the admitted signature, or disputed signature. -----Depending upon the size of the signature , the range of magnifying instrument is required. I have not mentioned in my work sheet, the size to which signature had to be magnified.------ While comparing the signatures, the person who compares the signatures shall make notes of the observations found by him. It is false to suggest that I have not made notes 16 O.S.No.8066/2003 of the observation. There is no impediment for me to produce the said notes. ----- In my report, I have not specifically mentioned the natural variation for each of the characters.------ Specifically I have not mentioned pen pressure on Ex.D1(a) on one side and Ex.D65(a) and Ex.D64(a) on the other side. --- I have not mentioned with regard to method adopted for comparing the admitted and disputed signatures in the report. ------ The job of a person for identifying the signatures is he has to first point out the similarities and dissimilarities and then to compare and analyse." From these admissions, it is clear that he has not compared the admitted and disputed signatures properly. Hence his evidence has no much relevance. From the evidence of D.W.1 and particularly, evidence of D.W.3, it appears to the court that there are no suspicious circumstances relating to execution of the will.
21. As discussed above, there is no hard and fast rule how the will is to be written. Even though the said will -Ex.D1 does not 17 O.S.No.8066/2003 show why nothing is given to the plaintiff, or the 2nd defendant, who are also the children of Kalappa; from the evidence on record, it cannot be said that the will is unfair, unnatural and impossible.
22. Even though in the cross-examination of D.W.1/defendant No.1, it has come that the father -Kalappa used to write documents clearly so as to understand by himself, he used to write letters so as to understand by person receiving it; just because prefixing 'Smt' is written in the will- Ex.D1, while mentioning the names of the legatees, it cannot be made much Ex.D1- will, is dated 23.02.1989. Even Ex.D2, letter, written before the date shown in Ex.D1 is dated 18.02.1989, written by the father- Kalappa to the Society, it is shown "Smt."
M.K.Suchitra.
23. Further, except the contention of defendant No.2, that father/Kalappa has not executed any will, as discussed above, nothing has been elicited in the cross-examination of D.W.3 to discard his evidence with regard to execution of the will 18 O.S.No.8066/2003 Hence viewed from any angle, it appears to the court that Kalappa, the father of plaintiff and defendants, has executed a valid and legal will-Ex.D1, bequeathing suit 'A' schedule item No.1 property, i.e., property No.522, in favour of his daughters only, i.e., plaintiff and 1st defendant.
24. It is the contention of the plaintiff that suit schedule 'A' item No.2 property, i.e., residential site No.423, was acquired by the mother Prameela from the Society. The said site was the self acquired property of Kalappa and the same was nominally stood in the name of his wife N.Prameela. The said contention cannot be accepted as per Sec. 3 and 4 of the Benami Transactions(Prohibition) Act 1988. The said contention can only be taken by the husband/Kalappa.
25. Ex.D61, particulars furnished by mother -Prameela to the Society on 17.03.1965; Ex.D60-letter written by the mother/ Prameela to the Society, sending demand draft for Rs.2406/-, in favour of the Society as well as Ex.D58, Ex.D59, letters, dated 19 O.S.No.8066/2003 7.2.1974, written by the Society to Prameela, for having received the said sum of Rs.2406/-. Ex.D10, intimation, dated 13.2.1989, (after the death of mother/Prameela) intimating the said Prameela with regard to releasing of site by the said Society in favour of Prameela; Ex.D21, dated 01.06.1991, letter, issued by the Society, informing transfer of said site and site deposit of Rs.4806/- as well as share amount of Rs.100/-, from the name of late Prameela, in favour of 1st defendant; clearly show that the said site was allotted in favour of mother/Prameela.
26. Sec.119 of Indian Succession Act, states-
"119 - Date of vesting of legacy when payment , or possession postponed- Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator's death, and shall pass to the legatee's representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator's death said to be vested in interest." 20 O.S.No.8066/2003
Hence even though the suit schedule 'A' item No.2 property was not in possession of mother/Prameela, as on the date of the execution of the will, she could execute a will with regard to the said property, since the same was allotted to her by the Society.
27. Even though it is contended by the plaintiff that she is also having right/share in suit schedule 'A' item No.2 property, i.e., site No.423, the same is denied by the 1st defendant. Whereas the 1st defendant has contended that the mother/Prameela executed unregistered will, dated 29.08.1984, bequeathing the said property, in favour of the 1st defendant. By filing rejoinder, the same is denied by the plaintiff. The 2nd defendant, in his written statement, has also denied the said contention of the 1st defendant.
28. With regard to execution of said will- Ex.D7, by Prameela, it was known to the plaintiff, defendant No.1, defendant No.2 and their father- Kalappa. Because when the Society informed by a letter, dated 13.02.1989, after the death 21 O.S.No.8066/2003 of mother-Prameela, as per Ex.D10, intimating the said Prameela with regard to releasing of site by the said Society; afterwards, as per Ex.D11, dated 20.02.1989, the 1st defendant/ Suchitra has written a letter to the said Society, requesting to transfer the said site in her favour by enclosing the copy of the will - Ex.D7. Ex.D12 is the intimation by the said Society, dated 5.3.1989, requesting the 1st defendant to produce certain documents and pay the fees etc., As per Ex.D15, dated 9.1.1991, letter written by the said Society to defendant No.1, requesting for compliance of the requirements. On 04.04.1991, the 1st defendant has written a letter, as per Ex.D16, to the said Society, enclosing (1) affidavit, (2) joint affidavits of plaintiff, defendant No.1 and defendant No.2 and father Kalappa and the payment of Rs.1598/-.
29. Further Ex.D17/D51, sworn by the father Kalappa, defendant Nos.1, 2 and plaintiff, swearing that they are the only legal heirs of mother/Prameela.
22 O.S.No.8066/2003
30. Ex.D18/D52, joint affidavit, sworn by the plaintiff, defendant No.1, defendant No.2 and father/Kalappa on 04.04.1991, shows swearing with regard to the execution of the will by Prameela on 29.08.1984, bequeathing the suit item No.2 of 'A' schedule property, in favour of defendant No.1 and defendants 1 and 2 and the father Kalappa had no objection to transfer of the said site No.423(suit schedule 'A' item No.2 property) in favour of defendant No.1.
31. Further the signatures of the plaintiff, defendants and their father, Kalappa are marked Ex.D51(a) to Ex.D51(h) in the affidavit, Ex.D51 as well as Ex.D52(a) to Ex.D52(h), in the affidavit Ex.D52. Since there is no cross-examination to that effect, the unchallenged testimony to that effect has to be accepted. Hence Ex.D51 and Ex.D52 affidavits, sworn by plaintiff, defendant No.2 and their father are considered to be proved.
23 O.S.No.8066/2003
32. On the basis of said affidavits, Ex.D17/D51 and Ex.D18/D52 and complying with other requirements, as per Ex.D20, letter issued by the Society, to defendant No.1, informing acceptance of her membership. As per Ex.D21, dated 01.06.1991, letter written by Society, to defendant No.1, informing the transfer of site, site deposit of Rs.4806/-(it appears which was deposited by mother/Prameela) as well as share amount of Rs.100/- from the name of mother - Prameela, to defendant No.1. These transactions were taken place at an undisputed point of time.
33. Further with regard to the said swearing of joint affidavit, the plaintiff, in para-6 of the plaint as well as para-6 of her examination-in-chief has stated that after the death of their mother, a consent as given by the plaintiff to change the khatha of the said property in the name of 1st defendant and to hold the same as a member of Joint Hindu Undivided family. But the said documents, Ex.D17/D51 and Ex.D18/D52, affidavits, do not show 24 O.S.No.8066/2003 that the same were sworn to hold the said property by defendant No.1 as a member of Joint Hindu Undivided family. Further, D.W.4, in his cross-examination, in page-2, has specifically admitted that Ex.D18, (joint affidavit), bears his signature and he has not appeared before the Notary. He put his signature on Ex.D18/joint affidavit, at the request of mother's brother, Mr. N.Kumar, in good faith. He has not shown any will at that time. He has not given him the copy of the will. However, to corroborate his said contentions, defendant No.2 has not examined his maternal uncle, the said N.Kumar. Absolutely there is no cross-examination in the evidence of D.W.1 with regard to swearing of affidavit -Ex.D17/D51 and joint affidavit, Ex.D18/D52 by the plaintiff, defendants and their father Kalappa; on behalf of the plaintiff, or defendant No.2.
34. At an undisputed point of time, i.e., on 04.04.1991, the defendants 1 and 2(including their father) executed the said joint affidavit, Ex.D18/D52, admitting and swearing that the 25 O.S.No.8066/2003 mother/Prameela executed a will, on 29.08.1984, bequeathing the suit schedule 'A' item No.2 property to defendant No.1 and thus 3 persons had no objection to transfer of the said site, in favour of defendant No.1. From the said declaration of the plaintiff and defendant No.2, caused, or permitted, the 1st defendant to believe the thing to be true and the 1st defendant acted upon such belief and hence the plaintiff, or defendant No.2, is estopped from denying the said truth of that thing, as per Sec.115 of Indian Evidence Act, after lapse of 12 years, i.e., as on the date of filing of the suit.
35. D.W.2, attestor of the will/Ex.D7, executed by the mother/Prameela deposes with regard to execution of the will, Ex.D7- by Prameela, when she was in sound disposing capacity, signing of the said will, by said Prameela, as per Ex.D7(b) and signature of this attestor at Ex.D7(a). Even he has identified the signature of another witness at Ex.D7(c). Nothing is elicited in his cross-examination to discard his evidence. 26 O.S.No.8066/2003
36. The Asst. Director of FSL- C.W.1, in his evidence, by comparing Ex.D7- the will executed by Prameela, dated 29.08.1984 as well as the signature of said Prameela found in Ex.D16, i.e., the letter written by Prameela to the said Society on 4.2.1974, opined that the signatures are not written by one and the same person, who filed his report- Ex.C-1.
37. It is to be seen that Ex.D60, letter, was signed by Prameela on 4.2.1974. Whereas the will- Ex.D7 shows the date 29.08.1984, i.e., after lapse of 10 years the same was written. However, in the cross-examination of C.W.1, he deposes " If it is suggested that in the normal course of human nature, the signature varies, I say natural variation will occur from one signature to other signature of same person, but basic handwriting habits will not change." However, in his examination- in-chief, he has only deposed "I have examined the documents. After thorough scientific examination of signature marked as Ex.D7(b) and S1, I came to the opinion that the signatures 27 O.S.No.8066/2003 marked as Ex.D7(b) and S 1 are not written by one and same person. The signature marked as Ex.D7(b) is produced by means of imitation forgery. Accordingly I submitted my report along with reasons." He has not deposed, in his examination-in-chief with regard to the grounds to come to a particular opinion. As per Sec.51 of Evidence Act, whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant. When grounds are not stated, opinion has no relevance. Mere stating the grounds in the report is not sufficient. The witness has to depose to that effect. Hence the opinion of C.W.1/handwriting expert cannot be accepted.
38. At the cost of repetition, the evidence of D.W.2 is not shaken with regard to execution of the will by Prameela. There is no evidence, or admission, to show suspicious circumstances with regard to execution of the will. Further the will-Ex.D7,will, reads as under-
"WILL 28 O.S.No.8066/2003 Whereas I am the absolute owner of house site No.423, situated in Ist Phase of Idea Homes Cooperative Building Society Ltd., Bengaluru to be released by BDA Bengaluru.
And whereas I am already aged and this is my last will and testament concerning the property described in the schedule, during the period of my life.
By way of this will, I want to bequeath my property mentioned in the schedule to the said Smt.M.K.Suchitra the eldest daughter of Smt.M.Prameela and Sri.M.Kalappa.
The will executed by me this day will come into effect only after my death.
Schedule Site No.423, situated in the Ist stage of layout made by Ideal Homes Co-operative Building Society Ltd., Bengaluru bounded as follows-
East by : Site No.424 West by : Road North by : Road South by : Site No.412
Measuring East to West 40 feet and North to South 60 feet.
Signature Sd/- (M.Pramila) Dated ;29.08.84 Witnesses:-
(1) sd/- (S.R Rao) (2)(sd/- (S.Saroja)"29 O.S.No.8066/2003
39. At the cost of repetition, there is no specific format for writing the will. It is true that in the said will, why nothing is bequeathed in favour of other children of Prameela, is not shown. Just because the same is not shown, it cannot be considered that the said will is not a genuine one. Hence with due respect to the rulings relied on behalf of defendant No.2, i.e., (1) ILR 2007 KAR 1484 (2) AIR 2007 SC 2025 (3) AIR 1990 SC 396 (4) AIR 2006 SC 1895 (5) AIR 1990 SC 1742 (6) 2016 (2) Kar.L.R.269, the same are not applicable to the present set of facts.
40. Hence it appears to the court that mother/Prameela, executed Ex.D7-will, in her sound state of mind, with an intention to bequeath the property in favour of defendant No.1 alone and the court feels that the said will is genuine and legal. Hence the 30 O.S.No.8066/2003 1st defendant/M.K.Suchitra alone is entitled to the suit schedule 'A' item No.2 property.
41. Further, if really the plaintiff and defendant No.2 were interested to deny the said will, they would have not kept quiet after swearing joint affidavit, as per Ex.D18/D52. Further Ex.D22 to Ex.D57, showing paying of balance amount by the 1st defendant to the Society; execution of lease-cum-sale agreement, in favour of the 1st defendant in respect of suit schedule 'A' item No.2 property by the Society; possession certificate issued on 17.10.1994, in favour of the 1st defendant, by the Society in respect of the said site; transfer of suit schedule 'A' item No.2 property, from the name of mother, in the name of 1st defendant and transfer of site deposit of Rs.4806/-, which was deposited by the mother, in favour of the 1st defendant; clearly establish that plaintiff and defendant No.2 very well knew that their mother executed the will-Ex.D7, bequeathing the suit schedule 'A' item No.2 property, in favour of 1st defendant. Even khatha in respect 31 O.S.No.8066/2003 of the said property has been transferred in the name of the 1st defendant and the 1st defendant has been paying the taxes in respect of the said property. From these evidence, it appears that the 1st defendant has become the absolute owner of suit schedule 'A' item No.2 property, i.e., residential property No.423, based on the will-Ex.D7, executed by the mother, Prameela.
42. To show that the suit schedule item Nos. 1 and 2 are joint family properties, except the oral evidence, no material is produced. Ex.P1 and Ex.P6, khatha extracts, in respect of suit schedule 'A' item No.1 property, stands in the name of father- Kalappa. Ex.D9-property extract, in respect of suit schedule 'A' item No.2 property, i.e., site No.423, stands in the name of defendant No.1. From all these evidence, it appears to the court that suit schedule 'A' properties are not joint family properties.
43. From the evidence on record, it appears to the court that the plaintiff is not in possession of the suit 'A' schedule 32 O.S.No.8066/2003 item No.2 and suit schedule 'B' properties. Hence these four issues are answered accordingly.
44. Issue No.5- As discussed in issue Nos. 1 to 4, the plaintiff is entitled to half share in the suit schedule 'A' item No.1 property, i.e., residential property No.522, as per the will, Ex.D1- executed by the father and the 1st defendant has got half share in the said site. However, the 2nd defendant has no right whatsoever over the said site, or suit schedule 'A' item No.1 property. At the cost of repetition, no material is produced to show the existence of suit schedule 'B' properties. Hence the plaintiff is entitled to half share in suit schedule 'A' item No.1 property only. Hence issue No.5 is answered accordingly.
45. Issue No.6 - Considering the special facts and circumstances of this case, there is no order as to costs. In view of the answers to issue Nos. 1 to 5, the following-
ORDER The suit is partly decreed.
33 O.S.No.8066/2003No order as to costs.
The plaintiff is entitled to ½ share in the below shown suit schedule 'A' item No.1 property and separate possession of the same shall be delivered to the plaintiff.
The 1st defendant has got ½ share in the below shown suit 'A' schedule item No.1 property and separate possession of the same shall be delivered to her, if the required fee is paid.
Suit schedule 'A' item No.1 property.
The residential property bearing No.522, 8th cross, 7th block, Jayanagar West, Bengaluru
-80, approximately measuring 18 squares built on 60x40 ft. site consisting of ground and first floors and bounded on:
East by : Property bearing No.521;
West by : property bearing No.523;
North by : 8th cross road;
South by : property bearing No.529.
34 O.S.No.8066/2003
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 3rd day of July, 2019) (SHUBHAVEER B.) XLIII Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE I. List of witnesses examined on behalf of plaintiff P.W.1 - M.K. Sumithra II. List of witnesses examined on behalf of defendants-
D.W.1 - Smt. M.K. Suchitra D.W.2 - Smt. S. Saroja D.W.3 - Sri. B.N. Chandrashekar D.W.4 - Dr.M.K. Sudarsan III. List of Court witnesses-
C.W.1- Syed Asgar Imam C.W.2- Dr.V.R.Aravindan IV. List of documents exhibited on behalf of plaintiffs-
Ex.P1 Property extract
Ex.P2 Legal notice
Ex.P3 Postal Receipt
Ex.P4 Postal acknowledgement
35 O.S.No.8066/2003
Ex.P5 Endorsement
Ex.P6 khatha extract
Ex.P7 Lease cum sale agreement
V. List of documents exhibited on behalf of defendants:-
Ex.D1 Unregistered Will 23.02.1989
Ex.D1(a) Signature of M.Kalappa
Ex.D1(b) Signature of witness/
B.N.Chdnrashekara
Ex.D2 Letter dated 18.2.1989
Ex.D2(a) Signature of M.Kalappa
Ex.D3 Letter dated 20.2.1989
Ex.D3(a) Signature of M.Kalappa
Ex.D4 Certificate dated 30.07.1986
Ex.D 5 Certificate dated 01.12.2006
Ex.D6 Pay slip
Ex.D7 Unregistered Will dated 29.8.1984
Ex.D7(a) Signature of D.W.2
Ex.D7(b) Signature of Prameela
Ex.D7(c) Signature of S.R.Rao
Ex.D8&D9 Death extracts
Ex.D10 Intimation letter dated 13.02.1989
Ex.D11 Letter dated 20.2.1989
Ex.D12 Letter dated 5.3.1989
Ex.D13 Letter dated 9.3.1989
Ex.D14 Letter dated 12.3.1989
Ex.D15 Letter dated 09.1.1991
Ex.D16 Letter dated 4.4.1991
Ex.D17 Joint affidavit sworn by Kalappa,
plaintiff, defendants No.1 and 2
Ex.D18 Joint affidavit sworn by Kalappa,
plaintiff, defendants No.1 and 2
36 O.S.No.8066/2003
Ex.D19 Endorsement issued by Tahsildar
Ex.D20 Letter dated 1991
Ex.D21 Letter dated 1.6.1991
Ex.D22 Letter dated 27.06.1991
Ex.D23 Letter dated 10.07.1991
Ex.D24 & 25 Postal acknowledgements
Ex.D26 Letter addressed to defendant
No.2 by the society
Ex.D27 Letter addressed to the society
Ex.D28 Passbook
Ex.D29 Receipt
Ex.D30 Lease -cum-sale agreement
Ex.D31 Possession certificate dated
17.10.1994
Ex.D32 NOC for transfer of khatha
Ex.D33 Khatha patra
Ex.D34-D40 Tax paid receipts
Ex.D41 -D44 Challan cum receipt of property tax
Ex.D45 Share certificate issued by Ideal
Homes Co-operative Building Society
Ltd.,
Ex.D46&47 Encumbrance certificates
Ex.D48 Khatha Certificate issued by BBMP
Ex.D49 Extract of tax assessment register
by BBMP
Ex.D50 Indemnity bond dated.27.3.89
Ex.D51 Joint affidavit dated 04.04.1991
Ex.D51(a & b) Signatures of Kalappa
Ex.D51(c & d) Signatures of defendant No.1 Ex.D51(e & f) Signatures of plaintiff Ex.D51(g&h) Signatures of 2nd defendant Ex.D52 Affidavit Ex.D52(a &b) Signatures of Kalappa Ex.D52(c&d) Signatures of defendant No.1 37 O.S.No.8066/2003 Ex.D52(e&f) Signature of plaintiff Ex.D52(g&h) Signatures of 2nd defendant Ex.D53 Membership application Ex.D54 Letter dated 17.6.93 Ex.D55 Original lease cum sale agreement Ex.D56 Office copy of the letter dated 5.1.2004 Ex.D56(a) Postal receipt Ex.D57 Original share certificate Ex.D58 Letter dated 7.2.1974 Ex.D59 Receipt issued in favour of Prameela Ex.D60 Letter dated 4.2.1974 Ex.D61 Particulars of Prameela Ex.D62 Office copy of the application filed in FDP 2/1979 Ex.D62(a) Signature of prameela Ex.D63 Sale deed Ex.D63(a-d) Signatures of Kalappa Ex.D64 Declaration of Trust Ex.D64(a-h) Signatures of Kalappa Ex.D65 Original sale deed Ex.D65(a) Signature of M.Kalappa Ex.D65(b) Signature of D.W.4 VI. Documents marked through court witnesses -
Ex.C1 Expert's report
Ex.C2 Expert's report
Ex.C2(a) Attachments to the reports
(SHUBHAVEER.B)
XLIII Addl.City Civil & Sessions Judge, Bengaluru 38 O.S.No.8066/2003 (Judgment pronounced in open court) ORDER The suit is partly decreed.
No order as to costs.
The plaintiff is entitled to ½ share in the below shown suit schedule 'A' item No.1 property and separate possession of the same shall be delivered to the plaintiff.
The 1st defendant has got ½ share in the below shown suit 'A' schedule item No.1 property and separate possession of the same shall be delivered to her, if the required fee is paid.
Suit schedule 'A' item No.1 property.
The residential property bearing No.522, 8th cross, 7th block, Jayanagar West, Bengaluru -80, approximately measuring 18 squares built on 60x40 ft.
site consisting of ground and first floors and bounded on:
East by : Property bearing No.521;
West by : property bearing No.523;
North by : 8th cross road;
South by : property bearing No.529.
Draw preliminary decree
accordingly.
39 O.S.No.8066/2003