Bangalore District Court
Govindraju B R vs Kumaraswamy B R on 12 June, 2025
KABC010199662014
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
DATED THIS THE 12th DAY OF JUNE 2025
PRESENT: SRI GANAPATI GURUSIDDA BADAMI,
B.A. LL.B.(Spl)
(Name of the Presiding Judge)
O.S.No.7161/2014
PLAINTIFF Sri B.R. Govindaraju
S/o Late A. Ramaiah,
Aged about 58 years
R/o Channapura,
Kalinganahalli Post,
Bellur Hobli,
Nagamangala Taluk,
Mandya District.
[By Sri B.G.T., Advocate]
/Vs/
DEFENDANTS 1. Sri B.R. Kumaraswamy,
S/o Late A. Ramaiah,
2
OS.No. 7161/2014
Aged about 54 years
R/o No.21, 11th 'A' Cross,
Swimming Pool Extension,
Parsi Garden,
Malleshwaram,
Bangalore - 560 003.
2. Smt. B.R. Ramamani
W/o Puttaswamy,
Aged about 60 years
No.36, "Nayana",
First Cross,
Swatantra Yodara Nagara,
Laggere, Bangalore-560058.
3. Sri Raghavaiah
S/o Late Thammannagowda,
Aged about 81 years.
4. Smt. Thimmamma,
W/o Late Kenchegowda,
Aged about 61 years.
5. Sri Kantharaju
S/o Late Kenchegowda,
Aged about 41 years.
6. Sri Dasegowda,
S/o Late Kenchegowda,
Aged about 36 years.
7. Smt. Jayamma,
W/o Late Rangegowda,
Aged about 66 years
8. Sri Ramakrishna
S/o Late Rangegowda
Aged about 51 years.
9. Sri Dasegowda @ Murthy,
S/o Late Rangegowda,
Aged about 49 years.
3
OS.No. 7161/2014
10. Sri Suresh,
S/o Late Rangegowda
Aged about 46 years.
11. Smt. Bhagyamma,
W/o Late Revanna
Aged about 52 years.
All are residing in Channapura
Village, Kalinganahalli Post,
Bellur Hobli, Nagamangala Taluk,
Mandya District.
[For D-1 by Sri K.S.N., Advocate]
[For D-2 by Sri J.R.M., Advocate]
[For D-3 by Sri L.A.B., Advocate]
[For D-4 to 11 by Sri N.C.N., Advocate]
Date of Institution of the suit : 17-09-2014
Nature of the Suit : Suit for Partition
& separate possession
Date of commencement of recording
of evidence : 14-12-2021
Date on which the Judgment was
pronounced : 12-06-2025
Year/s Month/s Day/s
Total Duration : 10 08 25
(GANAPATI GURUSIDDA BADAMI)
VI ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
4
OS.No. 7161/2014
JUDGMENT
Plaintiff has filed this suit against the defendants seeking the relief of partition and separate possession of his share in the suit schedule properties. He has also sought the relief of declaration that, unregistered will deed dated 05.09.1998 executed by his deceased father in favour of defendant No. 1 is not binding on him.
2. It is averred in the plaint that, the plaintiff and defendants are the sons of late A. Ramaiah and late H.L.Gangamma. Smt. B.R.Ramamani is daughter of late A. Ramaiah and late H.L.Gangamma. Plaintiff and defendants are brothers and they are coparceners of undivided family of late A.Ramaiah. Plaintiff is joint owner of suit schedule A and B properties shown in the plaint schedule. Suit schedule A property is purchased by their father and B schedule property was received by virtue of 5 OS.No. 7161/2014 Panchayat Palupatti and since from the date of purchase and Panchayat Palupatti, the plaintiff and defendant's father was in joint possession of the said properties along with plaintiff and defendants. The plaintiff and defendants are having equal right, title and interest of late A.Ramaiah who died on 22.09.1998 leaving behind the plaintiff and defendants to succeed to his estate and suit properties. There has been misunderstanding between plaintiff and defendants in day to day life and on several occasions, plaintiff requested the defendants to effect partition in the suit schedule properties and to give his 1/3rd share in the suit properties which was not responded by the defendants and they used illegal methods by colluding with revenue authorities and got mutated their names in the revenue records in respect of the suit schedule properties. The father of the plaintiff purchased property measuring 21 x 60 for ₹ 4,000 from Lakshman Raju under sale deed dated 6 OS.No. 7161/2014 11.06.1968 vide reg. No..531/1968-69 in Book No.1, Volume No. 2125, Page No. 206 which is bounded by East: Nanjundaswamy property, west: house of Dasharath, North: Road and South: late Ramasing and others' houses. The said sale deed has been registered in the office of Sub-Registrar Gandhinagar, Bangalore on 11.06.1968. The land bearing Survey No.2 measuring 3 acre 07 gunta is acquired by him under the Panchayat Palupatti dated 15.04.1954. But defendant no. 1 and 2 colluded with each other and created an unregistered will deed dated 05.09.1998 in the name of their father with an intention to deprive the share of the plaintiff in the suit properties and forged the signatures of his father. The said will deed is created, concocted and forged document and not binding on the plaintiff. Plaintiff decided to separate himself from the joint family by taking his share in the suit properties for which he is constrained to file the suit against the defendants seeking the relief of partition and 7 OS.No. 7161/2014 separate possession of his share in the suit properties.
3. The defendant No.1 has filed his written statement and denied the contents of plaint. It is contended that, suit of plaintiff is not maintainable either in law or on facts and liable to be dismissed. The suit of plaintiff is bad for non joinder of necessary parties. It is also barred by law of limitation. The valuation made and court fee paid is not correct and plaintiff has to pay the court fee under Section 35(2) of Karnataka Court Fees and Suits Valuation Act. Late Ramaiah possessed various other agricultural properties and he executed the will deed dated 05.09.1998 bequeathing all properties amongst his children who are plaintiff, defendants and their sister by name Ramamani. After execution of will deed, plaintiff, defendant and their sister have been living separately and said fact is well within the knowledge of plaintiff and he has suppressed 8 OS.No. 7161/2014 material facts intentionally and deliberately and filed false suit with malafide intention. There is no existence of joint family and plaintiff has been living separately and they are not in joint possession and enjoyment of suit properties. The suit schedule B property is residential property and there cannot be any record of rights in respect of said property. Late Ramaiah was an employee of Government Press Bangalore who joined the service in the year 1950-51 and he was living in Bangalore and maintaining the family. In the year 1954, there was family partition between him and his family members and in the said partition, the land bearing R.S.No.2 measuring 3 acre 5 gunta, R.S.No.9 measuring 13 gunta, R.S.No.27 measuring 25 gunta and R.S.No.9 measuring 1 acre of Channapura village, Kelinganahalli post, Bellur Hobli, Nagamangala Taluk in Mandya District and Hullu Koppalu and land left for construction of residential house fell to the share of Sri. A.Ramaiah. Since then, he was in the peaceful possession and 9 OS.No. 7161/2014 enjoyment of said properties. He raised loan from his department and purchased residential site bearing No.21, 11th A cross, Parsi Garden, Swimming Pool extension, Malleshwaram, Bangalore under registered sale deed dated 11.06.1968 and in the year 1969, he constructed house consisting of ground floor and started to reside there along with his family members. In the year 1978, he constructed first floor. He paid loan installments towards loan raised for purchasing B schedule property. At the time of purchasing the said property, plaintiff was aged about two years. The said property is neither joint family property nor ancestral property. A.Ramaiah repaid entire loan amount in the year 1980 in respect of B schedule property and retired from service in the same year and he was living in the said house till his death. The father of the plaintiff and defendant executed will deed dated 05.05.1998 bequeathing properties to the plaintiff, defendant and their sister Ramamani. After his death 10 OS.No. 7161/2014 on 22.09.1998, they become owners of their respective properties mentioned in the will and they have been living separately and there is no existence of joint family of plaintiff and defendants. Hence, question of partitioning suit schedule properties does not arise at all. But, the plaintiff has made baseless and false averments with sole intention to knock off the properties belonging to the defendants. Suit schedule B property is a residential property and there cannot be any record of rights in respect of said property. The said property was purchased by Ramaiah under registered sale deed dated 06.11.1968 and suit Schedule A property fell to his share in the Panchayat Palupatti dated 15.04.1954 which is admitted fact. Apart from the said two properties, Ramaiah had possessed various other properties and he bequeathed them to the plaintiff, defendants and their sisters under will deed and they are in peaceful possession and enjoyment of the said properties after his death. The khata and other 11 OS.No. 7161/2014 records pertaining to the properties bequeathed in favour of the defendants have been changed in their names long back and said fact is well within the knowledge of the plaintiff. But he has deliberately and intentionally suppressed the said fact with an intention to mislead the court. Therefore, it is prayed to dismiss the suit of plaintiff with costs.
4. Defendant No.1 filed additional written statement and contended that, plaintiff has not produced record of rights pertaining to Item Nos.1 to 8 of suit schedule A to show the existence of the said properties and he has failed to comply Section 132 of Karnataka Land Revenue Act. Sri A.Ramaiah was absolute owner of B schedule property which was acquired by him under the registered sale deed and he was in peaceful possession and enjoyment of the said property. The Khata of the said property is standing in his name and he had been paying taxes in respect of the said property. He exercised absolute 12 OS.No. 7161/2014 ownership over the said property and executed will deed in favour of defendant No.1 and bequeathed said property and bequeathed other properties in favour of the plaintiff. The plaintiff is also a legatee under the said will deed and he has no right to seek the relief as prayed in the additional prayer column. Therefore, he prayed to dismiss the suit with exemplary costs.
5. Defendant No.2 filed written statement and repeated same contents of the written statement filed by defendant No.1 in her written statement and prayed to dismiss the suit of plaintiff with costs.
6. The defendant No.3 has filed separate written statement and admitted the contents of plaint with regard to the relationship in Para No. 2 of the written statement. He has also admitted the contents of paragraph No. 4 to 6, 6(A), 7 and 7(A) of the plaint. He has contended that, his deceased father 13 OS.No. 7161/2014 Thamannagowda had two blood brothers by name Ramaiah @ Ramegowda who is deceased father of plaintiff and Krishnappa. During his lifetime, Thamannagowda and his two deceased brothers partitioned the ancestral joint family landed properties under Panchayath Paluparikath dated 15.04.1954 and Schedule A Item No. 1 to 8 landed properties along with three items of landed properties sold by Ramaiah long back fell to the share of father of the plaintiff by name Ramaiah. After the death of Ramaiah, 8 item properties are in joint possession of the plaintiff and defendant No.1 and 2. In Item Nos. 2 to 8 of suit schedule, Item No. 3 bearing Survey No.9 of Chennapura Village of Suit Schedule A is standing in the name of defendant No.3. The landed properties fallen to the shares of respective parties according to the Panchayat Paluparikath are in their enjoyment and possession even though in the record of rights, their names are not correctly mentioned as per the allotment of shares given to them in the Panchayat 14 OS.No. 7161/2014 Paluparikath dated 15.04.1954. The names of defendant No.4 to 11 are wrongly mentioned in the columns of the Record of Rights in respect of Item Nos. 2 and 4 to 8 of Suit Schedule A which are to be rectified and transferred in the name of plaintiff as well as in the name of defendant No.3. Even though the said lands belonged to the share of deceased father of plaintiff in Item No.2 and 3 of the suit schedule A, they are wrongly standing in the name of defendant No. 3 and defendant No.4 to 11. Defendant No.3 has no objection to mutate joint names of plaintiff and defendant No.1 and 2 in the revenue records of Item No. 3. But due to non co-operation of the defendant No.1 and 2 to mutate their names along with name of the plaintiff, it has not been done so far. The names of defendant No.4 to 11 are wrongly mentioned in the columns of record of rights in respect of Item Nos.4 to 7 of suit schedule A even though they are fallen to the share of father of the defendant No. 3 Thamannagowda as per Panchayat 15 OS.No. 7161/2014 Paluparikath. After the death of father of defendant No.3, it should have been entered in the name of defendant No.3. The lands bearing R.S.No.20 measuring 1 acre 7 Gunta and 1 acre 14 Gunta are wrongly standing jointly in the name of the deceased Rangegowda who is husband of defendant No.7 and father of defendant No.8 to 10 and in the name of deceased Kenchegowda who is husband of defendant No.4 and father of defendant No.5 and 6 which should have been transferred in the name of defendant No.3 after the death of his father as per the Panchayat Paluparikath dated 15.04.1954. The defendant No.3 is ever willing to co-operate to mutate the name of plaintiff and defendant No.1 and 2 in the revenue records in respect of Item No.2 and 3 of the suit schedule A for which defendant No.4 to 7 have to co-operate by giving their consent for mutating his name in respect of Item No.4 to 7 which are fallen to the share of his father. Therefore, he prayed to decree the suit of the plaintiff.
16
OS.No. 7161/2014
7. Defendant No.4 to 11 have filed their separate written statement and denied the contents of the plaint. They have also contended that, suit is not maintainable either in law or on facts and it is barred by law of limitation and it is liable to be dismissed for want of cause of action. The plaintiff has not paid proper court fee. He has not approached the court with clean hands. They have contended that, originally suit was filed against defendant No.1 to 3 by the plaintiff with regard to the properties fallen to the share of his father Ramaiah. Late Ramaiah comes under the branch of his father Thamannagowda and Thamannagowda is the son of Anna Mestri who is the son of male propositus Raghav Mestri. Late propositus Raghav Mestri had three sons by name Rangegowda, Dasegowda and Anna Mestri. The defendant No. 4 to 11 are belonged to the branches of Rangegowda and Dasegowda. After the death of male propositus Raghav Mestri, his three sons orally partitioned the properties left behind by male 17 OS.No. 7161/2014 propositus Raghav Mestri about 70-80 years back and they have been in possession and enjoyment of their respective shares in the properties left behind by the Raghav Mestri without any obstruction. The defendant No.4 to 11 are the grandchildren and great grandchildren of Dasegowda and Rangegowda. The defendant No. 1 and 2 are belonged to the branch of Anna Mestri who is their great grandfather. The defendant No.4 to 11 are no way concerned to the branch of plaintiff and defendant No.1 and 2 and they have been impleaded without any cause or reason with an intention to harass them. Therefore, it is prayed to dismiss the suit of the plaintiffs.
8. On the basis of pleadings of the parties, my predecessor in office has framed the following issues:
ISSUES
1) Whether Plaintiff proves that the suit schedule properties are the coparcenery properties ? 18
OS.No. 7161/2014
2) Whether plaintiff further proves that plaintiff and the 1st defendant are in joint possession and enjoyment of the suit schedule properties ?
3) Whether the 1st defendant proves the alleged Will dated 05-09-1998 alleged to be executed by his father late Sri A. Ramaiah ?
4) Whether the 1st defendant proves that 'B' schedule property is the self acquired property of his father late Sri A. Ramaiah ?
5) Whether the plaintiff is entitled to the relief as prayed for ?
6) What Order or Decree ?
ADDITIONAL ISSUES DATED 09-12-2019
1) Whether defendant No.1 proves that court fee paid by plaintiff is improper ?
2) Whether defendant No.1 proves that suit is barred by limitation ?
3) Whether defendant No.1 proves that suit is bad for non-joinder of necessary and proper parties ?
ADDITIONAL ISSUES DATED 28-10-2021
1) Do defendants No.4 to 11 prove that suit of plaintiff is barred by limitation ?
2) Do defendants No.4 to 11 further prove that plaintiff has no cause of action to file this suit ?
3) Do defendants No.4 to 11 also prove that suit is not properly valued and court fee paid is insufficient ?
19
OS.No. 7161/2014
4) Do defendants No.4 to 11 prove that the three sons of late Raghava Masthri orally partitioned the properties left by him around 70-80 years ago and that the sons of late Raghava Masthri have been in separate possession and enjoyment of their respective shares ?
9. Plaintiff himself examined as PW-1 and got marked ExP-1 to 16 documents and closed his evidence. The defendant No.1 himself examined as DW.1 and got marked Ex.D-1 to D-4 and closed his evidence. The defendant No.3 by name Thammana Gowda himself examined as DW.2 and got marked Ex.D-5 and closed his evidence. One Puttaswamy S/o Late Muniyappa is examined as DW.3 and Ex.D- 4(a) to 4(c) are marked and closed his evidence. The defendant No.8 himself examined as DW.4 and documents Ex.D-6 to D-10 are marked and closed his evidence.
10. Heard arguments of learned counsels for both parties. Learned counsel for the plaintiff, learned counsel for the defendant No.1, learned counsel for 20 OS.No. 7161/2014 defendant No.3 and learned counsel for defendants No.4 to 11 have filed written arguments and also filed Memo of citations. I have gone through the pleadings, oral and documentary evidence and written arguments submitted by both parties.
11. My findings on the above issues are as follows:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Negative.
Issue no.4 : In the Negative
Addl. Issue No.1
dated 9-12-2019 : In the Negative
Addl. Issue No.2
dated 9-12-2019 : In the Negative
Addl. Issue No.3
dated 9-12-2019 : In the Negative
Addl. Issue No.1
dated 28-10-2021 : In the Negative
Addl. Issue No.2
dated 28-10-2021 : In the Negative
Addl. Issue No.3
dated 28-10-2021 : In the Negative
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OS.No. 7161/2014
Addl. Issue No.4
dated 28-10-2021 : In the Negative
Issue No.5 : As per the final order,
for the following:
REASONS
12. ISSUES NO.1 TO 3 :- These issues are taken together for discussion to avoid the repetition of facts and evidence.
13. It is the pleadings and evidence of plaintiff that, he and defendants No.1 and 2 are children of late A. Ramaiah and H.L.Gangamma and they are coparceners of undivided family of Ramaiah and he is joint owner of suit schedule 'A' and 'B' properties. He has further stated that, his father purchased 'B' schedule property and inherited 'A' schedule property as per the Panchayath Vibhaga Parikath dated 15- 04-1954 and after death of his father, he and defendants No.1 and 2 are in joint possession and enjoyment of suit schedule 'A' and 'B' properties. He is having equal right, title and interest in 'A' and 'B' 22 OS.No. 7161/2014 schedule properties and his father died intestate on 22-09-1998. He has further stated that, his father sold 3 items of landed properties under the registered sale deeds dated 27-10-1969 and 17-06-1970 for the purpose of construction of house in 'B' schedule property.
14. The plaintiff has produced family tree, death certificate of his father, death certificate of his mother, records of rights of Sy.No.2 of Channapura village, certified copy of sale deed dated 15-05-1968, khata extract, certified copy of sale deed, typed copy of Ex.P-7, certified copy of sale deed dated 17-06- 1970 and its typed copy, letter dated 21-01-2020 issued by Canara Bank, records of rights of Sy.No.2 of Channapura village for the year 2018-19, records of rights of Sy.No.9 of Channapura village for the year 2018-19, records of rights of Sy.No.17 of Channapura village for the year 2018-19, records of rights of Sy.No.18 of Channapura village for the year 23 OS.No. 7161/2014 2018-19, records of rights of Sy.No.27 of Channapura village for the year 2018-19, records of rights of Sy.No.123/8A of Channapura village for the year 2018-19, which are marked as Ex.P-10 to 15. Plaintiff produced copy of Panchayath Palu Parikath dated 15-04-1954 and its typed copy which is marked as Ex.P-16 and P-16(a).
15. On the other hand, defendant No.1 himself examined as DW.1 and he has stated that, there is no joint family consisting of plaintiff and defendants No.1 and 2. But, he has stated that plaint 'A' schedule property is ancestral property of late A. Ramaiah. According to his evidence, his father late A. Ramaiah was working in Government Press and he purchased 'B' schedule property out of his earnings as Government servant and executed Will deed dated 05-09-1998 bequeathing the properties in favour of his children and accordingly, he, plaintiff and his sister Ramamani are living separately and he is in 24 OS.No. 7161/2014 exclusive enjoyment and possession of 'B' schedule property and he has got mutated his name in respect of 'B' schedule property as per Will Deed and plaintiff is not in joint possession of said properties. He has produced alleged Will Deed dated 05-09-1998, which is marked as Ex.D-4.
16. On appreciating the oral evidence of DW.1, in his cross-examination, he has stated that, his father was being called as Ramegowda in the village, but in the official records, his name is mentioned as A. Ramaiah and he was working as Binder in the Government Press and he joined service in the year 1953. He has voluntarily stated in his cross-examination that, his parents were running Provision Store. It is clear from the evidence of DW.1 that, father of plaintiff and defendants No.1 and 2 was working as Binder in the Government Press and his name for the official records as A. Ramaiah and he is being called as Ramegowda. Though he has stated in his cross- 25
OS.No. 7161/2014 examination that, his parents were running provision store and there may be documents and he undertook to produce the document in case they are available, he has not produced any documents to that effect. His further cross-examination shows that, his father was having ancestral landed property measuring 3 acres 7 guntas in Sy.No.2 of Channapura village. According to his evidence, in the year 1954, there was partition between his father and brothers and in the Panchayath Parikath, 3 acres 7 guntas land came to the share of his father. In the cross-examination, Ex.P-16 - Panchayath Vibhaga Parikath was confronted to the DW.1 and he admitted that, 8 items of properties shown in suit schedule 'A' property came to the share of his father. The concerned cross-examination portion is as under :
"ಸದರಿ 3 ಎಕರೆ 7 ಗುಂಟೆ ಜಮೀನು ಚೆನ್ನಾ ಪುರ ಗ್ರಾ ಮದ ಸರ್ವೇ ನಂ.2 ರಲ್ಲಿ ಇತ್ತು . ನನ್ನ ತಂದೆ ಮತ್ತು ಅವರ ಸಹೋದರರ ನಡುವೆ 1954 ರಲ್ಲಿ ಆದ ಪಂಚಾಯತ್ ಪಾರಿಕತ್ ನಲ್ಲಿ ಸದರಿ 3 ಎಕರೆ 7 ಗುಂಟೆ ಜಮೀನು ನನ್ನ ತಂದೆಯ ಪಾಲಿಗೆ ಬಂದಿರುತ್ತ ದೆ. ಸದರಿ ದಾಖಲೆಯು ಪಂಚಾಯತ್ ವಿಭಾಗ ಪಾರಿಕತ್ ಇರುತ್ತ ದೆ ಎನ್ನು ವುದು ಸರಿ. 26
OS.No. 7161/2014 ನಿ.ಪಿ.16 ಪಂಚಾಯತ್ ವಿಭಾಗ ಪಾರಿಕತ್ ನ್ನು ನೋಡುತ್ತಿ ದ್ದು ಅದರ ಅಡಿಯಲ್ಲಿ ಈ ಕೇಸಿನ ವಾದ ಪತ್ರ ದಲ್ಲಿ ನಮೂದಿಸಿರುವ ಎ ಷಡ್ಯೂ ಲ್ ನ 8 ಐಟಂ ಆಸ್ತಿ ಗಳು ನನ್ನ ತಂದೆಯ ಪಾಲಿಗೆ ಬಂದಿರುತ್ತ ವೆ ಎನ್ನು ವುದು ಸರಿ."
17. It is clear from Ex.P-16 and admission of DW.1 that, 8 item properties of suit schedule 'A' came to the share of father of plaintiff and defendants No.1 and 2 in the Panchayath Vibhaga Parikath. Even DW.1 in his chief-examination itself, he has admitted that, plaint schedule 'A' property is ancestral property of late A. Ramaiah. The concerned portion of chief-examination affidavit is as under :
" Plaint 'A' schedule property is the ancestral property of Late A. Ramaiah."
When it was suggested in cross-examination that, as per Ex.P-16 Panchayath Vibhaga Parikath, his father has got 3 item properties other than 8 item properties, for which he has answered that, his father has got 2 item properties in the partition. In further cross-examination, when it is suggested that, his 27 OS.No. 7161/2014 father has sold 3 item properties to his brothers under registered sale deed for which he has deposed that, sale deed executed in respect of 2 item property and said property ought to had gone to the share of his father's brothers and they came to the share of his father and his brothers told him to give share of 2 properties and without taking amount or by receiving Rs.100/- or Rs.200/-, his father executed sale deed. Ex.P-7 and P-8 are the sale deeds produced by the plaintiff and they are confronted in the cross- examination of DW.1 and he admitted that on 27-10- 1969 2 items sold by his father under Ex.P-7, but, he has admitted document and denied that it is sale transaction and it is related to only one item. He has also admitted Ex.P-8, but, denied that it is sale transaction. As per the contents of Ex.P-8, on 17-06- 1970, father of the plaintiff and defendants sold one item property. It is surprise to note that DW.1 admitted Ex.P-7 and 8, but, denied that, said transaction is sale transaction. He has to admit the 28 OS.No. 7161/2014 documents in entirety and not in piecemeal. He has to admit about Ex.P-7 and 8 or deny the said documents. But, he has neither totally denied Exs.P- 7 and 8 nor admitted that, it is sale transaction. Such piecemeal admissions are not acceptable under law. Even Exs.P-7 and 8 are 30 years old documents and said documents have got evidentiary value unless it is rebutted. Hence, the contention taken by DW.1 in his cross-examination is not acceptable. As per his own admission, there was partition between his father and brothers and 8 items in schedule 'A' fallen to the share of his father as per Ex.P-16 and said fact is admitted by him in cross-examination at page No.2. In further cross-examination, he has also admitted that, his father has purchased suit schedule 'A' property site on 15-05-1963. He has denied that, his father was having agricultural income other than the salary. But, according to his version, his father was getting income from provision store and vegetable shop. Admittedly, no documents 29 OS.No. 7161/2014 have been produced to show that, his father was running provision store and having income.
18. Learned counsel for the plaintiff has cross- examined DW.1 and in the cross-examination, he admitted that, defendant No.2 born in the year 1959 and his parents did not have children for 13 years for which they have foster daughter by name Rangamma. In further cross-examination, it is suggested that, his father sold property in 'A' schedule to one Sannamarigowda for the purpose of construction of building in 'B' schedule property and he has answered and admitted the sale of property, but it was not for the purpose of construction of building. In further cross-examination, it was suggested and denied by the DW.1 that, at the time of his marriage, Rs.60,000/- was spent by his father for which his father mortgaged the property for the purpose of marriage. When it was put in the form of questions that, on 10-04-1991, 'B' schedule property 30 OS.No. 7161/2014 was mortgaged by his father for the purpose of his marriage, he has admitted that, property was mortgaged and it was signed by him and plaintiff as witnesses, but according to him, said mortgage was not for his marriage expenses. His evidence shows that, in the year 1983-98, plaintiff worked as staff in Vyalikaval and Yeshwanthapura Canara Bank branches. It is put in the form of question to DW.1 that, from year 1983 to 1999, all family members were residing in the joint family 'B' schedule property for which he has answered that, plaintiff was residing in the first floor of the building and himself and his parents are residing in the second floor of 'B' schedule building. When it was suggested that, son of plaintiff by name Bharath Gowda who is studying in Vidyamandira school, Malleswaram, he is attending the school from 'B' schedule property, for which he has stated that, address of 'B' schedule property was given in the school records, but, he was not residing in 'B' schedule property. 31
OS.No. 7161/2014
19. Learned counsel for plaintiff has cross-examined DW.1 on the Will Deed. Ex.D-4 is the alleged Will Deed executed by father of plaintiff and defendants No.1 and 2. On perusal of Ex.D-4 document, the alleged Will Deed is executed on 05-09-1998. DW.1 admitted that, his father died on 22-09-1998. The concerned cross-examination portion is as under :
"My father was passed away on 22.09.1998. Ex.D.4 the alleged Will dated 05.09.1998."
Ex.P-2 is the death certificate of late A. Ramaiah and as per the said document, Ramaiah died on 22- 09-1998. It is clear that, he died within 17 days from the date of execution of alleged Will Deed. On appreciating the cross-examination of DW.1, he has admitted that, his father passed away on 22-09-1998 due to health issues and one year before death of his father, he came to know that, his father was suffering from Lungs cancer. The concerned cross- examination portion is marked as under :
"It is true on 22.09.1998 my father was passed away. My father was died due to health 32 OS.No. 7161/2014 issues. One year before death of father I came to know my father was suffering from lungs cancer."
He has denied the suggestion that, for the first time, at the final stage, it was diagnosed in May 1998 that, his father was suffering from Lungs cancer and he was diagnosed in Laxmi Nursing Home, Sheshadripuram and plaintiff admitted him in the said hospital and after diagnose plaintiff admitted him to the Bengaluru Institute of Oncology. He has also denied that, in the said hospital, chemotherapy treatment was provided by the plaintiff. He has admitted that, his father was referred to Kalasa Nursing home, Chamarajpet and he was taken treatment. The concerned cross-examination portion is as under :
"It is true my father referred to Kalasa Nursing Home, Chamarajapete and he was taken treatment."
He has denied that, after coming to know about lungs cancer, his father became depressed and 33 OS.No. 7161/2014 he was not talking to anybody and he was losing memory power. He has further denied the suggestion that, as on 05-09-1998, his father was bedridden and lost memory and he was physically and mentally not sound and unable to execute any will.
20. DW.3 has stated in his evidence that, father of plaintiff and defendant No.2 by name A. Ramaiah executed Will Deed by bequeathing all his properties in favour of his two sons and one daughter and deceased requested him to attest the Will Deed as attesting witness and he has signed the said Will as a witness. On appreciating the cross-examination of DW.3, he has stated that, he has not purchased stamp paper to prepare Will in the name of his father-in-law and he does not know that, who has purchased the stamp paper to prepare the Will and he does not know that, whether Kumaraswamy had prepared the Will and when he had prepared the Will. Even he does not know the date of preparation of Will 34 OS.No. 7161/2014 as per Ex.D-4. He does not know that, who has purchased the stamp paper or whether Kumaraswamy had prepared the Will or when he prepared Will and date of preparation of Will. In further cross-examination, he has deposed that, at the time of signing Will, his father-in-law and mother-in-law were present and another attesting witness by name Srinivas had also signed to the Will in his presence who is known to him through his father-in-law and mother-in-law. His evidence shows that, at the time of signing the Will, witness Srinivas and his father-in-law and mother-in-law were present. He has admitted that, prior to 1998, his father-in-law was admitted in hospital for lungs cancer treatment and he was taking treatment in Cancer hospital. The concerned cross-examination portion is as under :
"It is true prior to 1998 my father in law was admitted to hospital for lung cancer treatment. It is true my father in law was taking treatment in cancer hospital."35
OS.No. 7161/2014 Even he has also admitted that, the alleged Will executed on 05-09-1998 and his father-in-law died on 22-09-1998. The concerned cross- examination portion is as under :
"It is true my father in law was died on 22.09.1998, the alleged Will at Ex.D.4 is dated 05.09.1998."
He has denied the suggestion that, one month prior to death of his father-in-law, he lost his memory and he was under Coma due to lungs cancer and bedridden in the hospital. He has also denied suggestion that, after the death of his father-in-law, he, defendants No.1 and 2 have created the Will by forging signature of his father-in-law and Srinivas is not residing at all in the address mentioned in the Will and the Will Deed is created by colluding with defendant No.1 to help his wife.
21. Now the question arising for my consideration is whether the Will Deed has been proved beyond 36 OS.No. 7161/2014 doubt? In a decision of Hon'ble Supreme Court reported in Kavita Kanwar vs Mrs. Pamela Mehta Hon'ble Supreme Court has laid down the principles that, the executor should provide satisfactory evidence that, the testator signed the Will on their own free will, he was having sound and disposing mind when making Will and understood the nature and effect of disposition. Section 63 of the Indian Succession Act speaks about execution of un-previlaged Wills. In the decision reported in Meena Pradhan and others v. Kamla Pradhan and Another (2003) 9 SCC 734 and Shivakumar and Others v. Sharanabasappa and Others (2021)11 SCC 277, in which the principles are summarized as under :
"...10.1. The court has to consider two aspects :
firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him;
10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.37
OS.No. 7161/2014 10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; 10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;
10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with; 38
OS.No. 7161/2014 10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence; 10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier;
10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will;
10.10. One who alleges fraud, fabrication, undue influence etc has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation;
10.11. Suspicious circumstances must be "real, germane and valid" and not merely "the fantasy of the doubting mind "Whether a particular feature would qualify as "suspicious" would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself 39 OS.No. 7161/2014 taking a leading part in the making of the will under which he receives a substantial benefit, etc."
The principles laid down in the said decisions are referred by Hon'ble Supreme Court in the decision reported in Gopal Krishan and others v. Daulat Ram and others in 2025 INSC 18.
22. Now appreciating the evidence of PW.1, he has stated in his cross-examination that, his father was working as Binder in the Government Press, Bangalore and in the partition between his father and brothers, 8 to 10 item properties came to the share of his father. He has admitted that, in the year 1968, his father purchased schedule 'B' property and at that time, he was in the Government service. But, he has voluntarily stated that, the said 'B' schedule property is purchased by his father out of the income from joint family. The concerned cross-examination portion is as under :
40
OS.No. 7161/2014 "ನನ್ನ ತಂದೆಯು ಬೆಂಗಳೂರಿನಲ್ಲಿ Government press ನಲ್ಲಿ binder ಆಗಿ ಕೆಲಸ ಮಾಡುತ್ತಿ ದ್ದ ರು. ನನ್ನ ತಂದೆ ಮತ್ತು ಅವರ ಅಣ್ಣ ತಮ್ಮ ಂದಿರ ನಡುವೆ ಆದ ವಿಭಾಗದಲ್ಲಿ ನನ್ನ ತಂದೆಯ ಪಾಲಿಗೆ 8 ರಿಂದ 10 ಐಟಂ ಆಸ್ತಿ ಗಳು ಬಂದಿರುತ್ತ ವೆ. 1968 ರಲ್ಲಿ ನನ್ನ ತಂದೆಯು ದಾವಾ ಬಿ ಷಡ್ಯೂ ಲ್ ಆಸ್ತಿ ಯನ್ನು ಕೊಂಡುಕೊಂಡಿದ್ದಾ ರೆ ಎನ್ನು ವುದು ಸರಿ. ದಾವಾ ಬಿ ಷಡ್ಯೂ ಲ್ ಆಸ್ತಿ ಯನ್ನು ಕೊಂಡುಕೊಳ್ಳು ವಾಗ ನನ್ನ ತಂದೆಯು ಸದರಿ ಹುದ್ದೆ ಯಲ್ಲಿ ಇದ್ದ ರು ಎನ್ನು ವುದು ಸರಿ. ಮುಂದುವರೆದು ಪಿತ್ರಾ ರ್ಜಿತ ಆಸ್ತಿ ಯಿಂದ ಬಂದ ಆದಾಯದಿಂದ ನನ್ನ ತಂದೆಯು ದಾವಾ ಬಿ ಷಡ್ಯೂ ಲ್ ಆಸ್ತಿ ಯನ್ನು ಕೊಂಡುಕೊಂಡಿದ್ದಾ ರೆ ಎಂದು ಸ್ವ ತಃ ನುಡಿಯುತ್ತಾ ರೆ."
But, he is unable to say what was the income derived from the ancestral property by his father and he has approximately stated that, annual income of his father was Rs.1,000/-. In further cross- examination, he has given the details of the properties came to his father from his ancestors which are as under :
"ಚೆನ್ನಾ ಪುರ ಗ್ರಾ ಮದ ಸರ್ವೇ ನಂ.2 ರಲ್ಲಿ 3 ಎಕರೆ 7 ಗುಂಟೆ ಜಮೀನು; ಸರ್ವೇ ನಂ.9 ರಲ್ಲಿ 15 ಗುಂಟೆ, 1 ಎಕರೆ ಮತ್ತು 13 ಗುಂಟೆ ಹೀಗೆ ಮೂರು ಜಮೀನುಗಳು; ಸರ್ವೇ ನಂ.17 ರಲ್ಲಿ 9 ಗುಂಟೆ ಜಮೀನು; ಸರ್ವೇ ನಂ.18 ರಲ್ಲಿ 35 ಗುಂಟೆ ಜಮೀನು; ಸರ್ವೇ ನಂ.20 ರಲ್ಲಿ 1 ಎಕರೆ ಜಮೀನು; ಸರ್ವೇ ನಂ.27 ರಲ್ಲಿ 25 ಗುಂಟೆ ಹಾಗೂ 8 ಗುಂಟೆ ವಡೆರಾ ಹಳ್ಳಿ ಎಲ್ಲೆ ಹೊಲ ಎಂಬುದಾಗಿ 2 ಜಮೀನುಗಳು; ಹಾಗೂ ಅಟ್ನಾ ಸರ್ವೇ ನಂ.123/8 ಎ ರಲ್ಲಿ 29 ಗುಂಟೆ ಜಮೀನು ಇವುಗಳು ನನ್ನ ತಂದೆಗೆ ಪಿತ್ರಾ ರ್ಜಿತವಾಗಿ ಬಂದಿದ್ದ ಆಸ್ತಿ ಇರುತ್ತ ವೆ."
Though he has stated that, his father was growing some crops in the land bearing Sy.No.3 41 OS.No. 7161/2014 measuring 3 acre 7 guntas, Sy.No.9 measuring 15 guntas and 1 acre 13 guntas, he is unable to say the expenses made by his father for growing crops and how much crop was used for self and how much was sold. He has denied the suggestion that, since his father was in Government service, he was not doing cultivation of the lands and he was not growing the said crops and he was not having income shown in the plaint. He has further admitted in his cross- examination that, he has not produced any documents to show that, what was the income of his father from suit schedule 'A' property. The concerned cross-examination portion is as under :
"ದಾವಾ ಎ ಷಡ್ಯೂ ಲ್ ಆಸ್ತಿ ಗಳಿಂದ ನನ್ನ ತಂದೆಗೆ ಎಷ್ಟು ಆದಾಯ ಬರುತ್ತಿ ತ್ತು ಎನ್ನು ವ ಬಗ್ಗೆ ಈ ಕೇಸಿನಲ್ಲಿ ದಾಖಲೆಗಳನ್ನು ಹಾಜರು ಮಾಡಿಲ್ಲ ಎನ್ನು ವುದು ಸರಿ."
In further cross-examination, he has denied the suggestion made by the learned counsel for the defendant. It is clear from his evidence that, schedule 'B' property has been purchased by his father. In the cross-examination of PW.1, one 42 OS.No. 7161/2014 mortgage deed has been confronted and PW.1 admitted his signature on the said document and signatures of his father which are marked as Ex.D- 2(a) and (b). Though he has denied the suggestion that, his father mortgaged schedule 'B' property in Malleswaram Co-operative Bank and borrowed loan of Rs.50,000/-, said document bears the signature of plaintiff and his father and PW.1 has admitted his own signature on the said document. It establishes that, the said property was mortgaged by executing mortgage deed in favour of Malleswaram Co-operative Bank. In further cross-examination by learned counsel for the defendant, he has confronted one receipt Ex.D-3 which is receipt for redemption of mortgage by paying mortgage amount to the Malleswaram Co-operative Bank and PW.1 has admitted the said document. It is suggested in the cross-examination that, the defendant No.1 has paid mortgage loan amount to Malleswaram Co-operative Bank and got redeemed mortgage for which he has 43 OS.No. 7161/2014 answered that, his father has given the said amount. However, it has been proved that, the said property was mortgaged by the father of the plaintiff and defendant and said amount is repaid and it was redeemed by father of plaintiff and defendant No.1 which is clear from the admissions of PW.1.
23. On appreciating documentary evidence on record, the relationship is not in dispute. Hence, Ex.P-1 Genealogical tree is not so important document. As per Ex.P-2, father of the plaintiff and defendants No.1 and 2 died on 22-09-1998. Ex.P-3 is the Death Certificate of Gangamma, who died on 02-07-2013 and she is mother of plaintiff and defendants No.1 and 2. He has produced Ex.P-4, which is Record of Rights of Sy.No.2 measuring 3 acre 9 guntas, out of which 12 guntas has been acquired under Hemavathi Dam Scheme and 2 acre 33 guntas is standing in the name of 1 st defendant as per M.R.No.15/1998-99. He has produced Ex.P-5 44 OS.No. 7161/2014 which is the certified copy of sale deed dated 15-05- 1968 and as per the said document, the site measuring 21' x 60' has been sold for consideration of Rs.2,000/- by its owner K. Narayan Rao and T.M. Varadarajulu and K. Shivappa in favour of Nanjundaswamy. Ex.P-6 is the Khata extract in respect of property No.21/23 measuring 1260 sq.ft., standing in the name of defendant No.1 and said property is situated in Ward No.5 of Kodandaramanagar. He has also produced certified copy of sale deed dated 27-10-1969. Ex.P-7 executed by A. Ramegowda in favour of Sannamarigowda in respect of land bearing Sy.No.18 measuring 33 guntas bounded by East - Land of Gollara Mariyanna ; West - Land of purchaser ; North - Land of Krishnappa and South - Land of purchaser and Mudgeregowda and it is shown in the said sale deed that, the said property came to him in Panchayath Palu Parikath. He has also produced certified copy of sale deed dated 17-06-1970. Ex.P-8 executed by A. 45 OS.No. 7161/2014 Ramegowda and plaintiff B.R. Govindaraju, second son B.R. Kumar in favour of Hanumamma W/o Mudageregowda S/o Dasegowda of Channapura Village and under the said sale deed, the land bearing Sy.No.9 measuring 15 guntas bounded by East - Land of purchaser (Mudageregowda land) ; West - Land of Thammanagowda ; North - Land of vendors and South - Land of Rangaiah. He has produced one letter issued by Canara Bank, Belluru branch, Mandya and as per the said document, plaintiff B.R. Govindaraju has availed housing loan from the said bank and mortgaged his lands and original documents are deposited by way of simple mortgage and original Panchayath Paluparikath dated 15-05-1954 is with the Bank. He has produced Records of Rights of Sy.No.2 measuring 2 acre 33 guntas in the name of defendant No.1 for the year 2018-19. He has produced Record of Rights of Sy.No.9 measuring 7 acre 14 guntas, out of which 4 acre 38 guntas is in the name of Raghavaiah S/o 46 OS.No. 7161/2014 Thammannagowda and remaining land has been acquired for Hassan-Bangalore New Railway Broad guage Scheme. He has produced Records of Rights of Sy.No.17/6 of Channapura village and as per the said document, the said land is standing in the name of defendants No.5 to 9. He has also produced Ex.P- 13 Record of Rights of Sy.No.18 of Channapura village measuring 17.08 guntas in the name of Kenchegowda S/o Mudagirigowda. He has also produced Record of Rights of Sy.No.27 measuring 3 acres 30 guntas and the name of Rangegowda S/o Kenchegowda is entered in the revenue records column No.9 as per IHC 1/88-89. He has also produced Ex.P-15 which is Record of Rights of Sy.No. 23/8A measuring 5 acre 11 guntas out of which 18 guntas is in the name of Revanna S/o Rangegowda as per MR No.3/94-95 and remaining 4 acre land has been acquired by KIADB. He has produced Ex.P-16, which is Panchayath Paluparikath effected between father of plaintiff and defendants No.1 and 2 by name 47 OS.No. 7161/2014 Ramaiah and his brothers and in the said partition deed, the details are given about properties divided in between them. These documents are clearly admitted by the defendants in their written statement and they have also admitted that as per Panchayath Paluparikath, schedule 'A' properties came to the share of their father.
24. Ex.D-1 is the Mortgage deed executed by father of the plaintiff and defendants by borrowing advance loan amount of Rs.8,370/- on 06-08-1969. Ex.D-2 is the document executed by Ramaiah in favour of Malleswaram Co-operative Bank for having borrowed loan of Rs.50,000/- and agreed to repay the said amount along with interest at the rate of 15% per annum and penal interest at the rate of 2% per annum and agreed to pay installment of Rs.835/- each. Ex.D-3 is the document which is issued by Malleswaram Co-operative Bank and as per the said document, Ramaiah cleared the loan amount of 48 OS.No. 7161/2014 Rs.50,000/-. Though defendant Nos.1 and 2 contended in the written statement and suggested in the cross-examination of PW.1 that defendant No.1 has cleared the loan amount, but Ex.D-3 document clearly shows that, the said loan is cleared by Ramaiah and not by the defendants No.1 and 2. Defendants have much relied upon Ex.D-4 which is alleged Will Deed executed by Ramaiah in favour of plaintiff and defendants No.1 and 2 and their sister. It is executed on 05-09-1998 and he died on 22-09- 1998 as per the Death certificate. Ex.D-6 is the Record of Rights of Sy.No.2A of Channapura village which is in the name of B.R. Govindaraju S/o Ramaiah. Ex.D-7 is Record of Rights of Sy.No.2 standing in the name of B.R. Kumaraswamy to the extent of 2 acre 33 guntas. Ex.D-8 is the Record of Rights of Sy.No.2B measuring 3 acres 8 guntas in the name of Raghavaiah S/o Thammegowda. Ex.D-9 is the Record of Rights of Sy.No.9/6 measuring 4 acre 38 guntas the name of Raghavaiah S/o 49 OS.No. 7161/2014 Thammegowda is entered as per MR No.2/98-99 by way of inheritance (pavathi khatha). Ex.D-10 is Record of Rights of Sy.No.29 and it is in the names of Raghavaiah, A. Ramaiah, Jayamma, Deviramma and their names are entered as per MR No.5/98-99.
25. Learned counsel for the plaintiff filed his written arguments and submitted that, Exs.P-7 and 8 Sale deeds dated 27-10-1969 and 17-06-1970 in which it is clearly mentioned that, A. Ramaiah sold some of ancestral landed properties for the purpose of construction of house in Bangalore.
26. Learned counsel for the defendants No.4 to 11 filed written statement and contended that, the plaintiff has not produced any document to show that, he and defendants No.1 and 2 are in possession and enjoyment of the properties belonged to defendants No.4 to 11 and he has admitted that he or his grand father have not claimed the properties 50 OS.No. 7161/2014 belonged to the defendants No.4 to 11 before Tahsildar or Assistant Commissioner and not filed any application before the said authorities. It is further contended in the written arguments that, plaintiff has admitted in his cross-examination that, Panchayath Paluparikath is not a registered document. On appreciating cross-examination of DW.4, he has admitted that, Raghava Mestri had 3 sons by name Range Gowda, Dasegowda and Anna Mestri. Raghava Mestri is the propositus of plaintiff and defendants family and Dasegowda had only son by name Mudigeregowda and Mudigeregowda had two sons by name Range Gowda and Kenchegowda. Even in the cross-examination, he has admitted that Anna Mestri had three sons by name Thammanna Gowda, Ramaiah and Krishnappa. He has denied rest of the suggestions of the plaintiff counsel. He has denied the suggestion that, revenue documents in respect of property bearing Sy.No.17/6, Sy.No.18, Sy.No.20, Sy.No.27 and Sy.No.123 are belonged to 51 OS.No. 7161/2014 Ramaiah and defendant No.3 are standing in the names of defendants No.4 to 11. He has also denied that, children of Anna Mestri are in possession and enjoyment of their share as per Ex.P-16. On appreciating Ex.P-16 documents, there was partition between Thammanagowda, Ramaiah and Krishnappa on 15-04-1954 as per Ex.P-16 and defendants No.4 to 11 are children of Kenchegowda and Range Gowda. As per the admission of DW.4 in his cross- examination, Mudigeregowda had got two sons by name Rangegowda and Kenchegowda and daughters by name Kenchamma and Kalamma and Mudigeregowda is the son of Dasegowda and Dasegowda is son of Raghava Mestri and genealogical tree establishes the relationship between family. In the said partition, shares have been effected between Thammannagowda, Ramegowda and Krishnappa, who are the sons of Anna Mestri. After the partition between Thammannagowda, Ramaiah and Krishnappa, they have been separated and 52 OS.No. 7161/2014 defendants No.4 to 11 are not concerned to the said family. There is already partition between sons of Raghava Mestri and Thammannagowda and Ramaiah and Krishnappa have got their shares. As per Ex.P- 16 in the year 1954, the partition effected between Thammannagowda, Ramaiah and Krishnappa and they have separated from the main branches and partition has to be effected only between plaintiff and defendants No.1 and 2 as father of the defendant No.3 has got his share and separated from the said family and partition is required to be effected only between the plaintiff and defendants No.1 and 2 in respect of the share of their father A. Ramaiah.
27. In the arguments of learned counsel for the defendant No.1, it is contended that, defendant No.1 has cross-examined PW.1 with regard to the income of late Ramaiah and PW.1 was minor when 'A' schedule property came to the share of Ramaiah. But, this contention is not acceptable, because 53 OS.No. 7161/2014 whether PW.1 was minor or not is not the question to be decided about entitlement of the plaintiff to the share of his father and he acquired right in the property by birth. It is clear from Ex.P-16 and the evidence and pleadings of defendant No.1 that, suit schedule 'A' properties are the ancestral properties and this fact is admitted by DW.1 in his cross- examination. It is further contended in the written arguments that, when PW.1 was cross-examined with regard to the income of the joint family, he has not asserted definite income from agricultural properties and he is unable to tell the expenses of the cultivation and net profits after deductions received by A. Ramaiah from the suit schedule 'A' property. It is further contended that, defendant has produced Mortgage Deed and redemption of mortgage of 'B' schedule property from the Malleswaram Co- operative Bank done by the defendant No.1 by paying mortgage debt amount, which has been redeemed as per the Will Deed dated 05-09-1998. But, this 54 OS.No. 7161/2014 contention is not at all acceptable. Because as per Ex.P-3 document, mortgage loan has been repaid and loan redemption receipt about payment of loan amount is in the name of A. Ramaiah and there are no document to show that, said loan amount is repaid by the defendant No.1. It is further argued that, late A. Ramaiah did not spend money from joint family nucleus on 'A' schedule property and it was purchased and construction was put up on 'B' schedule property by late Ramaiah out of his salary who was working in Government Press and entire mortgage debt of suit schedule 'B' property was redeemed by the defendant No.1 and he is entitled for the said property. But, this contention is not at all acceptable. Because amount has been redeemed by late Ramaiah and said loan redemption receipt is issued in the name of late Ramaiah and there are no document to show that, said amount is paid by defendant No.1.
55
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28. In further arguments, it is submitted that, deceased Ramaiah bequeathed 'A' schedule property to plaintiff and defendants No.1 and 2 and beneficiaries have acted upon and enjoying their respective shares. He has relied upon decision of Hon'ble High Court reported in Sri J.T. Surappa and another vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and others ILR 2008 KAR 2115 in support of his arguments regarding Will Deed. In the said decision, the executant of Will Deed was suffering from ill-health and Hon'ble High Court has made observations about health condition of testator in para Nos.37 to 40 and clearly observed in para 40 that, the testator was not in a sound state of mind as well as physically from 22-1-2003 till his death on 24-1-2003 at 8.30 a.m., and Will came into existence at 8.30 a.m., on 21-04-2003 and Hon'ble High Court has disbelieved the Will. In this case also, the facts and circumstances are not so different. Because the alleged Will was executed on 05-09- 56 OS.No. 7161/2014 1998. DW.1 admitted in his cross-examination that, his father was referred to Kalasa Nursing Home, Chamarajpet and he was taking treatment and one year before the death of his father, he was suffering from lungs cancer. Person who was suffering from lungs cancer and admitted in the hospital and bedridden cannot be expected to have sound mind to execute the Will Deed. Even DW.3 admitted in his cross-examination that, prior to 1998 his father was admitted in the hospital for lungs cancer treatment and taking treatment in Cancer Hospital. It creates doubt about the execution of Will out of love and affection and with conscious mind of the testator at the time of execution of Will. Hence, execution of Will is not proved beyond suspicious circumstances. So, I hold that, the plaintiff has proved that, the suit properties are the ancestral joint family properties and he and defendants No.1 and 2 are in joint possession and enjoyment of the said properties. So, 57 OS.No. 7161/2014 I answered issues No.1 and 2 in the Affirmative and issue No.3 in the Negative.
29. ISSUE NO.4:- Even though defendant No.1 has taken contention that, schedule 'B' property is self- acquired property of his father, after his death, the said property is inherited by the plaintiff and defendants No.1 and 2 as Class-I heir and it is joint family property in the hands of plaintiff and defendants No.1 and 2 and it has lost the status of self-acquired property after the death of their father. Hence, the contention taken by the defendant No.1 is not acceptable. So, I answered issue No.4 in the Negative.
30. ADDITIONAL ISSUE NO.2 DATED 09-12-2019 AND ADDITIONAL ISSUE NO.1 DATED 28-10-2021:-
Though defendant Nos.4 to 11 have taken contention that the suit of the plaintiff is barred by limitation, they have not produced any materials that 58 OS.No. 7161/2014 how the suit of the plaintiff is barred by law of limitation. Plaintiff has filed the suit for partition and in the suit for partition, there will be recurring cause of action and there is no partition between plaintiff and defendants No.1 and 2. Hence, bare contention taken by the defendants No.4 to 11 is not acceptable. So, I answered additional issue No.2 dated 09-12-2019 and additional issue No.1 dated 28-10-2021 in the Negative.
31. ADDITIONAL ISSUE NO.2 DATED 28-10-2021:-
Defendant Nos.4 to 11 have contended that, there is no cause of action to file the suit. But, this contention of the defendants No.4 to 11 is not acceptable for the reason that, the plaintiff has not got his share in the suit properties and his oral evidence shows that, he asked the defendants No.1 and 2 to effect partition and to give share in the suit properties and share is not given to him, which has given raise to the cause of action to file the suit. 59
OS.No. 7161/2014 Hence, this contention is not acceptable. So, I answered additional issue No.2 in the Negative.
32. ADDITIONAL ISSUE NO.3 DATED 09-12-2019:-
Defendant No.1 filed his written statement and taken contention that, the suit is bad for non-joinder of necessary parties. Defendant No.1 has not stated that, who are the proper and necessary parties to the suit. Since suit is for partition and separate possession, plaintiff is defendant and defendant is plaintiff and the defendants would have also filed application for impleading necessary parties to the suit. Even plaintiff got amended the original plaint and impleaded defendants No.3 to 11 in the suit and there are no documents to show that, there are any other joint family members left by the plaintiff. In the absence of any materials to that effect, the bare contention taken by defendant No.1 is not acceptable. So, I answered additional issue No.3 in the Negative.60
OS.No. 7161/2014
33. ADDITIONAL ISSUE NO.1 DATED 09-12-2019 AND ADDITIONAL ISSUE NO.3 DATED 28-10-2021:-
These issues are framed on the pleadings of the parties regarding Court fee and valuation of the suit. Plaintiff has filed this suit against the defendants seeking the relief of partition and separate possession of his share in the suit schedule properties and he has valued the suit for Rs.10 lakhs and paid maximum Court fee of Rs.200/- under Sec.35(2) of Karnataka Court Fees and Suits Valuation Act. Though the defendant No.1 has contended that, the Court fee is required to be paid under Sec.35(1) of the Karnataka Court Fees and Suits Valuation Act, he has not produced any document to show about ouster of plaintiff from the suit schedule properties. Hence, plaintiff has rightly valued the suit under Sec.35(2) of Karnataka Court Fees and Suits Valuation Act and he has paid proper Court fee. Hence, contention taken by defendants No.1, 4 to 11 is not acceptable. So, I answered additional issue 61 OS.No. 7161/2014 No.1 dated 09-12-2019 and additional issue No.3 dated 28-12-2021 in the Negative.
34. ADDITIONAL ISSUE NO.4 DATED 28-12-2021:-
Though defendants No.4 to 11 have taken contention that, sons of Raghava Mestri orally partitioned properties left by him and they have been in separate possession and enjoyment of their respective shares, there are no materials or evidence to that effect. Even there was already partition between sons of Anna Mestri by Panchayath Palu Parikath dated 15- 04-1954. But, defendants No.4 to 11 have not produced any materials about oral partition. So, this contention of the defendants No.4 to 11 is not acceptable. So, I answered additional issue No.4 in the Negative.
35. ISSUE NO.5: For the reasons discussed above, I proceed to pass the following: 62
OS.No. 7161/2014 ORDER The suit of the plaintiff is hereby decreed with costs.
Plaintiff is entitled for 1/3rd share in the suit schedule 'A' and 'B' properties.
Defendant No.1 is entitled for 1/3rd share in the suit schedule 'A' and 'B' properties.
Defendant No.2 is entitled for 1/3rd share in the suit schedule 'A' and 'B' properties.
The suit against defendants No.3 to 11 is dismissed as not maintainable.
It is hereby declared that the unregistered Will Deed dated 05-09-1998 alleged to have been executed by deceased A. Ramaiah in favour of plaintiff and defendants No.1 and 2 is not genuine Will and not binding on the plaintiff. Draw preliminary decree accordingly. (Dictated to the Stenographer Grade-I, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 12th day of June 2025) (GANAPATI GURUSIDDA BADAMI) VI Addl.City Civil & Sessions Judge Bengaluru City.63
OS.No. 7161/2014 ANNEXURE
1. LIST OF WITNESSES EXAMINED BY PLAINTIFF:
P.W.1 Sri B.R. Govindaraju - dated 14-12-2021
2. LIST OF WITNESSES EXAMINED BY THE DEFENDANTS:
D.W.1 Sri B.R. Kumaraswamy - dated 12-12-2023 D.W.2 Sri Thammana Gowda - dated 22-08-2024 D.W.3 Sri Puttaswamy - dated 20-09-2024 D.W.4 Sri Ramakrishnaiah - dated 29-10-2024
3. LIST OF DOCUMENTS MARKED ON BEHALF OF PLAINTIFF Ex.P.1 Affidavit relating to family tree Ex.P.2 Death certificate of A Ramaiah Ex.P.3 Death certificate of Gangamma Ex.P.4 Record of right bearing Sy.No.2 of Chennapura village for the year 2013-2014 Ex.P.5 Certified copy of Sale Deed dated 15-05-1968 Ex.P.6 Khata extract dated 04-12-2013 Ex.P.7 Certified copy of Sale Deed dated 27-10-1969 Ex.P.7(a) Typed copy of Ex.P.7 Ex.P.8 Certified copy of Sale Deed dated 17-06-1970 Ex.P.8(a) Typed copy of Ex.P.8 Ex.P.9 Letter dated 21-01-2020 issued by Canara Bank Ex.P.10 Record of Right bearing Sy.No.2 of Chennapura village for the year 2018 and 2019 Ex.P.11 Record of Rights of land bearing Sy.No.9 of Chennapura Village for the year 2018-2019 Ex.P.12 Record of Rights of land bearing Sy.No.17 of Chennapura Village for the year 2018-2019 Ex.P.13 Record of Rights of land bearing Sy.No.18 of Chennapura Village for the year 2018-2019 Ex.P.14 Record of Rights of land bearing Sy.No.27 of Chennapura Village for the year 2018-2019 64 OS.No. 7161/2014 Ex.P.15 Record of Rights of land bearing Sy.No.123/8A of Chennapura Village for the year 2018-2019 Ex.P.16 Panchayathi Vibhaga Parikath dated 15-04-1954.
Ex.P.16(a) Typed copy of Ex.P-16
4. DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 Mortgage deed
Ex.D.2 Mortgage deed
Ex.D-2(a) Signature of PW.1 and his father.
& (b)
Ex.D.3 Receipt
Ex.D.4 Original Will dated 05-09-1998
Ex.D.4(a Signature of DW.3 in Ex.D-4
& b)
Ex.D.4(c) Signature of A. Ramaiah
Ex.D.5 Special Power of Attorney dated 7-8-2024
Ex.D.6 RTC in respect of Sy.No. 2 for the year 2024-25
Ex.D.7 RTC in respect of Sy.No. 2 for the year 2024-25
Ex.D.8 RTC in respect of Sy.No. 2B for the year 2024-25
Ex.D.9 RTC in respect of Sy.No. 9/6 for the year 2024-25
Ex.D.10 RTC in respect of Sy.No. 29 for the year 2024-25
VI Addl. City Civil & Sessions Judge
Bengaluru City.
65
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