Bangalore District Court
Mr. Glen Fredric Picardo vs Mr. Rodney Picardo on 23 December, 2020
1
O.S. 2900/2002
IN THE COURT OF I ADDITONAL CITY CIVIL &
SESSIONS: JUDGE AT BENGALURU (CCH.NO.2)
Dated this 23 rd day of December 2020.
O.S. No. 2900/2002
Present :- Sri. Jaishankar. B.Sc.,LL.M.
C/C I Additional City Civil &
Session Judge, Bengaluru.
Plaintiff :- Mr. Glen Fredric Picardo
Aged about 38 years,
S/o late Peter Vincent Picardo,
Post Box No. 1696, UM AL
QUWAIN, UAE.
Reptd. By his GPA Holder
M/s Steven Thomas Lobo
S/o Late P.S. Lobo
Aged about 36 years,
Residing at No.17,
43rd Main, Ideal Homes,
Rajarajeswarinagar,
Bangalore-560038.
(Rep. By H.S.V., Advocate)
V/s
Defendants :- 1. Mr. Rodney Picardo,
Since deceased Reptd by Lrs
1(a) Mrs. Prathibha Rodney
Picardo and another
Aged about 33 years
1(b) Baby Rodney Picardo
Aged about 4 years
Minor by natural guardian mother
Mrs. Prathibha Rodney John
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Picardo
Both residing at #165, 4th Main
Road, Vyalikaval,Bangalore-
560003
(Rep. By H.S.S., Advocate)
2. Mr. Edward Raj Picardo
Since deceased Reptd by LR's
D2 1) Mrs. June Marlene Picardo
Aged about 57 years,
W/o late Edward Raj Picardo.
(Exparte)
D2. 2) Mr. Aaron Peter Picardo
S/o Late Mr. Edward Raj Picardo,
Aged about 24 years,
Both residing at No.312,
Tal Cauvery Layout, I floor,
60 Feet Road, Amruthahalli,
Byatarayanapura,
Bangalore -560092.
(Exparte)
Date of Institution of the 20.04.2002
suit
Nature of the Suit (suit
for pronote, Suit for
declaration and Suit for partition and separate
possession, Suit for possession
injunction, etc.):
Date of the
commencement of 27.03.2012
recording of the Evidence:
Date on which the
Judgment was 23.12.2020
pronounced:
3
O.S. 2900/2002
Total duration: Year/s Month/s Day/s
18 08 03
JU D GM E N T
The plaintiff has filed this suit for partition and
separate possession of his 1/3rd share in the suit
schedule properties and for accounts. He has also prayed
to declare that the Will dated 09.07.1998 executed by Ms.
Helen Bibiana Picardo as null and void and it is executed
by use of force and undue influence.
2. The brief averments of the plaint are as follows:-
That the first defendant is his younger brother and
the 2nd defendant is his elder brother. During the life time
of his parents, the suit schedule item No.1 property was
purchased by his father in the name of his mother, as his
father was gainfully employed overseas. After the death of
his father, his mother continued to enjoy the said
property and she was residing in the ground floor while
the 1st and 2nd floor were rented out. His father while
continued to be employed as the Chief Executive built the
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O.S. 2900/2002
first floor of the said premises in the year 1979 at his cost
as his mother was unemployed and she was the house
wife. After the death of his father, family was put to
disarray and their education was also disturbed. The 2 nd
defendant being the eldest son had to take on the role of
breadwinner. His father at the time of his death left
behind several debts and liabilities which he had to
discharge and he also provided for the sustenance of his
mother. He has also taken care of the defendant No.1 and
his education. All of this was done solely from and out of
the funds sent by him from his employment overseas.
The family having prospered, his mother had purchased
another piece of immovable property at Vidyaranyapura
as well as jewelleries. He was compelled to step in and
aid the sustenance of the family along with his elder
brother who is the 2nd defendant. Thereafter, his mother
moved back to India to educate the defendant No.1, who
was just 14 years old. They came to India since they were
not able to make their ends meet with the meager income
from item No.1 of the plaint schedule property. His
mother kept on telling them that the item No.1 of the
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O.S. 2900/2002
plaint schedule be equally divided amongst the children.
During her life time she sold the property situated at
R.M.V 2nd Stage which was allotted by BDA and
purchased sites at A.M.S Layout in the name of
defendant No.1, herself and she also purchased two sites
in his name at Kasuvanahalli on Sarjapur Road and one
site in the name of defendant No.1 at K.C.P Layout on
Sarjapur Road. The said properties are described in 'A'
schedule. His mother was fond of jewelleries and during
her lifetime she was in possession and enjoyment of the
same. He estimates them to be of the value of Rs.10
Lakhs and they are shown in 'B' schedule. His mother
possessed and also the substantial sums of money which
was deposited in Syndicate Bank, Palace Orchards
branch, Bangalore and Canara Bank at Sadashivanagar
Branch which are shown in 'C' schedule of the plaint. The
purported Will executed by Mrs. Helen Bibiana Picardo
on 09.07.1998 has taken birth under suspicious
circumstances and has been drawn under the undue
influence of the defendant No.1 and without a free state
of mind. Hence, it is shrouded in mystery and the
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O.S. 2900/2002
circumstances under which it has come into existence
looks improbable, which warrants a detailed examination
at the hand of this Court. Without proving the
genuineness of the alleged Will, the LR's of the defendant
No.1 are not legally entitled to claim any benefits there
under. There has been no partition of any kind or nature
during the life time of Mrs. Helen Bibiana Picardo. The
defendant No.1 who continued to live in India of his
earnings has refused to share the property left behind by
the mother. He and the defendants are in joint possession
of the property mentioned in the schedule. The defendant
No.1 has refused to part with his share of the estate of
his mother and to give accounts of the transactions.
Hence, the suit.
3. The LR's of defendant No.1 have filed written
statement and have contended as follows :-
That the suit is not maintainable. It is barred by
limitation in so for as claim for item No.1 of suit schedule
'A' property is concerned. It is false that the father of the
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O.S. 2900/2002
plaintiff has purchased the said property in the name of
his mother in the year 1976. The father of the plaintiff
died on 25.10.1984. The partition is claimed in the year
2002 i.e., after lapse of more than 18 years. As such,
claim of the plaintiff is barred by law of limitation. The
parents of the plaintiff and defendants were residing in
Muscat, ever since 1973 and Mr. Peter Vincent Picardo
was an employee in a private company and Mrs. Helen
Bibiana Picardo was also in private employment and she
was also running a Novelty Gift Shop owned and
managed by her independently, at Muscat. She had her
own independent source of income. Mrs. Helen Bibiana
Picardo with an intention to purchase a residential house
property at Bengaluru for a total consideration amount of
Rs.70,000/- had executed a Power of Attorney in favour
of Ms. Sulochana Fernandez to enter into an agreement
of with respect to item No.1 of schedule 'A' property and
she had paid advance of Rs.10,000/- through her Power
of Attorney Holder. Since she was present in Bengaluru
during November 1976, the said property was got
registered in her name. The entire sale consideration of
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O.S. 2900/2002
Rs.70,000/- was paid solely by Mrs. Helen Picardo, out of
her own source of income. She also put up additional
construction to the existing structure, out of her own
income. Mr. Peter Vincent Picardo who was employed in
the Gulf Country, had applied for allotment of a
residential site to BDA and he was allotted a residential
site No. 283, 2nd Block, Rajmahal Vilas Extension, 2 nd
Stage, Bangalore measuring 50X80 feet, for a
consideration of Rs.79,450/- which was entirely paid by
him as per the receipt issued by the BDA dated
26.06.1984. Mr. Peter Vincent Picardo died on
25.10.1984 and after that the plaintiff, defendants and
their mother made an application to BDA for re-allotment
of the site No. 283 in their names and accordingly BDA
allotted the same and the khatha was also transferred in
favour of the 2nd defendant. Later, they jointly sold the
said property for Rs.35 Lakhs during the year 1995 in
favour of Mr. M. Gopal Raju. Out of the said sale
consideration of Rs.35 Lakhs, sites were purchased in
the name of plaintiff, deceased defendant No.1 and Mrs.
Helen Bibiana Picardo. The sites bearing Nos. 57 and 58
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O.S. 2900/2002
situated at Kasavanahalli Village measuring 5240 Sq.ft
were purchased for a consideration of Rs.11,07,038/- in
the name of the plaintiff during September 1995. The
property bearing No.31 formed in Sy. No. 5/4 V.P. Khata
No. 487 of Chikkabettahalli Village measuring 60X40 feet
was purchased in the name of the defendant No.2 for a
consideration of Rs.3,60,000/- and cash of Rs.5,00,000/-
was paid to him for the purpose of his business. Site Nos.
625 and 626 situated at Kasavanahalli Village measuring
60X40 feet were purchased for Rs.3,78,150/- in favour of
the deceased defendant No.1. The site No. 85 situated at
Chikkabettahalli Village measuring 1960 Sq.ft was
purchased in the name of Mrs. Helen Bibiana Picardo
for Rs.4,00,000/-. Mrs. Helen Bibiana Picardo also paid
Rs.4.00 Lakhs towards income tax, besides incurring
other expenses like stamp duty, registration expenses,
brokerage etc., out of the sale consideration of Rs.35.00
Lakhs. As such, the said property left behind by Mr. Peter
Vincent Picardo was partitioned amongst his legal heirs.
Mrs. Helen Bibiana Picardo and the defendant No.1
resided together in item No.1 of the suit schedule 'A'
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O.S. 2900/2002
property which was absolutely belonged to Mrs. Helen
Bibiana Picardo and the plaintiff and defendant No.2
used to visit the family only during holidays. Mrs. Helen
Bibiana Picardo during her life time had executed a Will
in favour of the plaintiff and the defendant No.1 in
respect of item No.1 of suit 'A' schedule property on
17.12.1997, as it was her self-acquired property. Later,
16.09.1998 she cancelled the earlier Will and made
another Will bequeathing item No.1 of suit schedule 'A'
property in favour of the deceased defendant No.1 and
the said Will is registered on 09.07.1998. Mrs. Helen
Bibiana Picardo died on 23.04.1999 and ever since then
the defendant No.1 became the absolute owner of item
No.1 of schedule 'A' property and he was in possession
and enjoyment of the same. The katha was also
transferred to his name by virtue of the Will and he was
paying taxes. The firs LR of the defendant No.1 married
the first defendant on 14.01.2001 and since then she has
been residing in her marital home, which is the item No.1
of suit schedule 'A' property and out of the said marriage,
a baby was born posthumously on 10.09.2007 as the
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O.S. 2900/2002
first defendant died of natural causes on 19.08.2007.
They have succeeded to the item No.1 of the suit
schedule 'A' property. Mrs. Helen Bibiana Picardo
partitioned the property of her late husband during her
life time and in respect of the item No.1 of 'A' schedule
property she has executed the Will bequeathing the same
in favour of the defendant No.1. It is false that the first
floor was built by the father of the plaintiff. The
averments made in para Nos. 8 and 10 of the plaint are
all false. It is false that the mother of the plaintiff had
purchased the immovable property at Vidyaranyapura.
The property at Vidyaranyapura and several other
properties were purchased in the names of the sons as
their rightful shares from and out of the sale proceeds of
the immovable property of their late father. It is false that
late mother was telling the plaintiff that item No.1 of
schedule 'A' property will be equally divided among the
children. The recitals in the Will left behind Mrs. Helen
Bibiana Picardo speaks contrary to the said averment. In
the earlier Will which was cancelled by her, the first floor
of the property was given to the plaintiff, but later since
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the plaintiff was given a lion share from out of the
immovable property left behind by her husband, she
changed her mind and left the item No.1 of 'A' schedule
property absolutely, in favour of the defendant No.1 as he
was given a very small portion out of the sale of the
property that belonged to her late husband. The
averment made in para 16 is false. The sale proceeds of
Rs.30 Lakhs was partitioned and the properties were
purchased in the individual names of plaintiff and
defendants. The averments made in para 17 are not
within their knowledge. The allegation that the mother
had left substantial amounts of money is not within their
knowledge. LR 1(a) being a teacher, used to earn about
Rs.5,000/- per month at the time of her marriage and
she was using the same for the family expenses and her
parents have regularly helped her to tide over certain
expenses which her husband could not do. The
averments made in para 19 are not within their
knowledge. It is false that the defendant No.1 refused to
share the property left behind his mother. Despite the
Will left by their mother, the plaintiff and the defendant
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No.2 used to often quarrel with her late husband on every
trip that they made to India and having realized that they
will not be able coerce him into parting with item No.1 of
the suit schedule 'A' property, they have colluded
together with malafide intention to make unlawful gains.
It is false that the plaintiff and defendants are in joint
possession of the property described in the plaint. The
marriage of LR 1(a) was not welcomed into the family as
the defendant No.1 married out of their own community.
After the death of defendant No.1, the defendant No.2
tried to forcibly enter into the item No.1 of the suit
schedule 'A' property and a police complaint was also
lodged. An application was also made for change of
khatha and the defendant No.2 has filed objection to the
same. There is no cause of action to file the above suit
since a registered Will has been executed in favour of the
defendant No.1. They are entitled for 1/3rd share in the
plaint 'A' schedule item No.2 property and they claim the
share in the said property as Counter claim. On all these
grounds, they have prayed to dismiss the suit and to
grant them 1/3rd share in the item No.2 of suit schedule
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'A' property.
4. They have also filed additional written statement
after the plaint was amended and have contended as
follows :-
That the plaintiff has not paid proper Court fees in
respect of the relief of declaration with respect to the Will
dated 09.07.1998. It is false that the Will is executed
under suspicious circumstances and under undue
influence of the defendant No.1, without a free state of
mind. The defendant No.1 was the only son living with
his mother and taking care of her and other two sons
were living separately along with their family. As such,
out of natural love and affection Mrs. Helen Bibiana
Picardo has executed the Will bequeathing her property
in favour of the defendant No.1. There is no joint
possession as alleged. It is false that there is no partition
during the life time of Mrs. Helen Bibiana Picardo. On all
these grounds, they have prayed to dismiss the suit of
the plaintiff.
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5. The defendant No.2 has filed his written statement
and has contended as follows :-
That his mother never had avocation as she was a
house wife. Item No.1 of the suit 'A' schedule property
was purchased out of the earnings of their father as he
was gainfully employed in Muscat. After the death of his
father, his mother moved to India as the defendant No.1
was a minor so that he could be properly educated. Ever
since his mother and the defendant No.1 returned to
India, he and the plaintiff have supported them to
upkeep the family and they have provided the materials.
The averments made in para 5 to 7 are true. His mother
through the BDA obtained a property at Raj Mahal Vilas,
2nd Stage in his name and later at her insistence it was
sold and the properties which are described as item Nos.
2 to 4 of schedule 'A' came to be purchased. Neither the
defendant No.1 nor his mother have contributed any sum
of money to purchase the said properties. Since
defendant No.1 has not made any contribution, he is not
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entitled to any share in the said properties. The
defendant No.1 who was living with the mother
apparently importuned on the Will of the mother to
purchase the properties described as item No.4 of the
plaint schedule 'A'. He has constantly supported his
studies at the Dayanada Sagar Engineer College besides
providing all the comforts. The property purchased by
him are shown in the schedule of the written statement.
The defendant No.1 did not complete his education, but
carelessly squandered their hard earned money while
their mother purchased several items mentioned in the
'B' schedule of the plaint. The defendant No.1 did not
have any gainful employment at the time of purchase of
the property which are described in the plaint schedule.
He is entitled for 1/3rd share in the item No.1, 2 and 4 of
schedule 'A' property. The property described as item
No.3 is his absolute property and neither the plaintiff nor
the defendant No.1 is entitled to any share in the said
property. After the death of his mother, the defendant
No.1 continued to occupy the suit schedule item No.1
property and he is in possession of all the immovable
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property described in his written statement. The
defendant No.1 has also leased out all the portions of
item No.1 of 'A' schedule for huge rents. He is also liable
to pay mesne profits in respect of the same. The
averment made in para 16 to19 of the plaint are correct.
Despite the lenience shown by him, the defendant No.1
continued to be indifferent to his request to apportion the
properties equally amongst the three of them. Without
their consent, the defendant No.1 has let out the property
for a monthly rent of Rs.10,000/-. He is also entitled for
share in the rents. The defendant No.1 is likely to sell the
movable properties during his absence from India. He is
entitled for 1/3rd share in the 'A' to 'C' properties. Hence,
prayed to allot his share in the said properties.
6. The plaintiff has filed rejoinder to the amended
written statement filed by the LR's of defendant No.1 and
he has reiterated some of the averments made in the
plaint and further contended as follows :-
That the amendment to written statement of L.R's of
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defendant No.1 is full of surmises and not maintainable
in law. Mrs. Helen Bibiana Picardo was not educated
much and had no prior work experience and she could
not do any business as an expatriate. The advance money
of Rs.10,000/- was belonged to Peter Vincent Picardo
and Mrs. Helen Bibiana Picardo had no income of her
own. The cost of additional construction to the existing
structure was met out of the funds of Mr. Peter Vincent
Picardo and out of the borrowed money which was repaid
by him. As for as the sale of the property mentioned in
the written statement and the details of the transaction
was known only to the defendant No.1 and Mrs. Helen
Bibiana Picardo as the plaintiff and the defendant No.2
were away from India. The amount received from the sale
of the said property was utilized for acquiring certain
properties such as gold, deposits in Bank and cash in
hand. A motor bike was also procured for the first
defendant out of the sums received from the said sale.
After the death of Mrs. Helen Bibiana Picardo gold
Jewelleries, deposits in Banks and cash were taken away
by the defendant No.1 without his consent or the consent
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of defendant No.2. The money required for the
transactions mentioned in the written statement of the
defendant No.1 was contributed by him. The Will
mentioned in the written statement has come into
existence under suspicious circumstances. The first
defendant nor his LR's did not derive any right, title and
interest under the Will dated 16.06.1998. The jewelleries,
cash also Bank Locker have been misused by the
defendant No.1. The LR's of defendant No.1 are liable to
accounts for all those valuables and assets. They are
also liable to accounts regarding rents received from item
No.1 of schedule 'A' property. It is false that the suit is
barred by limitation as for as item No.1 of schedule 'A'
property is concerned. Since the suit is for partition, it is
not barred by limitation. The amendment to the written
statement is only an afterthought designed for some how
to deprive the other joint family members of their due in
the property held jointly by them. It is false that Mrs.
Helen Bibiana Picardo was the absolute owner of the item
No.1 of property. On all these grounds he has prayed to
decree the suit as sought in the plaint.
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7. Basing on the above pleadings, the following
issues have been framed in this case:-
I SSU E S
1.Whether the plaintiff proves that item No.1 of the suit schedule 'A' property was purchased by his late father in the name of his mother Smt. Helen Bibiana Picardo and that he is entitled for the share in the item No.1 of the suit schedule property ?
2. Whether plaintiff further proves that item Nos. 2 to 4 including the 'B' and 'C' schedule properties are the properties of his late mother and as such they are also the joint family properties of plaintiffs and defendants ?
3. Whether the defendant No.2 proves that the item Nos. 1 of 'A' schedule property is the exclusive property of this defendant ?
4. Whether the defendant No.2 is entitled to partition and separate possession of suit schedule 'A' to 'C' properties ?
5. Whether the defendant No.1(a) and 1(b) proves that the mother of plaintiffs and defendant late Mrs Helen Bibiana Picardo executed a Will in respect of item No.1 of 'A' schedule property in favour of defendant No.1 as contended in para No.37 of the written statement ?
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6. Whether the defendants No.1(a) and 1(b) further proves that late Snt. Hellen Bibiana Picardo-mother of the plaintiff and defendants had partitioned the par belonged to her husband Mr. Peter Vincent Picardo, during her lifetime among themselves ?
7. Whether the defendant Nos. 1(a) and 1(b) further proves that they are entitled to 1/3rd share in item No.2 of the suit schedule 'A' property ?
8. Whether plaintiff is entitled to the partition and separate possession in the suit schedule properties? If so, to what quantum ?
9. What order or decree ?
ADDITIONAL ISSUES
1. Whether the defendant Nos.1(a) &(b) proves that the suit is barred by Law of Limitation ?
2. Whether defendant is liable to furnish accounts of rents and profits accrued as pleaded by the plaintiff ?
8. In order to prove his case, the plaintiff has examined his P.A. Holder as P.W.1 and got marked 6 documents as Exs.P.1 to P.6. Later, he got himself examined as P.W.2. The LR No.1 of the defendant No.1 has examined herself as D.W.1 and got marked 19 22 O.S. 2900/2002 documents on their behalf as Ex.D.5 to D.23. They got marked 4 documents during the cross examination of P.W.2 as Exs.D.1 to D.4. The defendant No.2 has not lead any evidence.
9. I have heard the arguments of both sides and perused the entire materials on record. Having regard to the arguments heard and the materials on record, I answer the above points as hereunder :-
Issue No.1 :- In the negative
Issue No.2 :- Partly in the affirmative
Issue No.3 :- In the negative
Issue No.4 :- Partly in the affirmative
Issue No.5 :- In the affirmative
Issue No.6 :- In the affirmative
Issue No.7 :- In the affirmative
Issue No.8 :- Partly in the affirmative.
He is entitled for 1/3rd
share in item No.2 of 'A'
schedule properties.
Addl.Issue No.1 :- In the negative
Addl.Issue No.2 :- In the negative
Issue No.9 :- As per final order
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R EA S ON S
10. Issue No.1 :- It is the case of the plaintiff that during the life time of his parents, the plaint 'A' schedule item No.1 property was purchased by his father in the name of his mother. His father had also put up additional construction over the said property. His mother was residing in ground floor while 1 st and 2nd floor were rented out. His mother was unemployed and a house wife. He and the defendant No.2 were helping his mother in taking care of the family. He and the defendants are in joint possession of the said property and he is entitled for 1/3rd share in the same. The plaintiff who is examined as P.W.2 has reiterated the above facts in his affidavit filed in lieu of his examination in chief. His GPA Holder was examined earlier as P.W.1. He has got marked the certified copy of the Sale Deed dated 11.11.1976 pertaining to item No.1 of plaint 'A' schedule property as Ex.P.6. The said sale deed reveal that the property has been sold for a sale consideration of Rs.70,000/-. The 24 O.S. 2900/2002 defendant No.2 has also contended in his written statement that his mother never did have any avocation and item No.1 property of schedule 'A' property was purchased by his father. The defendant No.2 has not entered the witness box. The defendant No.1 has denied the case of the plaintiff. The LR's of the defendant No.1 have contended in their written statement at para Nos.3 to 6 that Mrs. Helen Bibiana Picardo was in private employment and she was also running a Novelty Gift Shop has purchased the plaint schedule item No.1 of schedule 'A' property out of her own income. The entire sale consideration of Rs.70,000/- was paid solely by Mrs. Helen Bibiana Picardo out of her own source of funds and she also put up additional construction to the existing structure.
11. The first LR of defendant No.1 who is examined as D.W.1 and has reiterated the above facts and has further stated that Mrs. Halen Bibiana Picardo during her stay with her husband at Muscat, she got engaged in private service right from 1975 and also commenced her 25 O.S. 2900/2002 own business by running a Novelty Gift Shop independently which was solely managed by her. She had substantial independent income both from private service as well as business run by her. The change of profession was entered by the Pass Port Authorities in her Passport in the year 1975 as Private Service as against House Wife. During the year 1979-80, her mother in law had put up additional construction out of her independent income. Item No.1 of the plaint 'A' schedule was exclusively belonged to Mrs. Helen Bibiana Picardo. No amount towards the purchase of the said property was contributed by late Mr. Peter Vincent Picardo. The LR's of defendant No.1 have got marked the Passports of Mrs. Helen Bibiana Picardo as Exs.D.1 and D.2 by confronting the same to P.W.2 during his cross examination. Further, D.W.1 has got marked the original sale deed dated 11.11.1976 with respect to suit 'A' schedule item No.1 property as Ex.D.7. She has also got marked the Tax paid receipts and Uttara Pathra pertaining to the said property as Exs.D.8 to D.15.
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12. As such, it is the case of the plaintiff and the defendant No.2 that item No.1 of suit 'A' schedule property was purchased by their father in the name of their mother Mrs. Helen Bibiana Picardo. On the other hand, the defendant No.1 has contended that the said property was the self-acquired property of his mother and she has paid the sale consideration amount out of her own earnings and the additional construction was also made by her out of her own earnings.
13. During the course of the arguments, the Counsel for the plaintiff argued that the father of the plaintiff and defendants was employed in Abroad and he was an NRI. He was gainfully employed in a Company at Muscat and after the marriage his wife also joined him. She was a house wife and she was not doing any work at Muscat. The suit 'A' schedule item No.1 property was purchased by the father in the name of the mother and the additional construction was also made by him. In the Passports marked as Exs.D.1 and D.2, it can be clearly seen that the entries are made that Mrs. Helen Bibiana 27 O.S. 2900/2002 Picardo was a house wife and she was not permitted to work. Though, it is contended by the LR's of defendant No.1 in their written statement that the mother was employed and she was also running a Novelty Gift Shop at Muscat, no documents are produced to prove the same. When the defendant No.1 has taken a contention that item No.1 of suit 'A' schedule property is the self- acquired property of his mother, it is for him to prove the same. D.W.1 is the wife of defendant No.1 and she has no knowledge about the sale transaction made in the year 1976. Hence, her evidence has to be discarded and it cannot be considered at all. Either the Bank account extracts nor any other documents regarding the payment of sale consideration by the mother are not produced. The entry as Private services entered in the Passport is not explained. No documents are produced regarding the income of the Novelty Shop. Since the said shop was alleged to be run in the Muscat, there should be some documents regarding the registration of the shop or the documents regarding the income of the shop. But, no documents are produced to prove the same. D.W.1 has 28 O.S. 2900/2002 stated in her cross examination that Mrs. Helen Bibiana Picardo was doing private services right from 1979. But, no materials are produced to show the establishment of the business or about the income. The entries in the Passport are not the proof of income. The defendant No.1 has failed to prove that his mother had her own income. Neither the salary slip or receipt are produced to show that the mother was working. Absolutely, there are no documents to show that his mother was allowed to do business at Muscat. The documents marked as Exs.D.1 to D.23 does not establish the source of funds. As such, it cannot be held that the item No.1 of 'A' schedule property was belonged to the mother. It is an admitted fact that father was working abroad. As such, it has to be held that the said property was purchased by the father in the name of mother of the plaintiff and defendants.
14. On the other hand, the Counsel for the LR's of defendants No. 1 argued that both Mr. Peter Vincent Picardo and Mrs. Helen Bibiana Picardo were staying at Muscat since 1973. Mrs. Helen Bibiana Picardo was 29 O.S. 2900/2002 doing private service and she was running a Novelty Gift Shop at Muscat and out of the said income she purchased the item No.1 of suit 'A' schedule property from one Srinivasaiah for a sale consideration of Rs.70,000/-. A sum of Rs.5,000/- was paid by cash as advance and another sum of Rs. 5,000/- was paid by way of Cheque thorough her Power of Attorney at the time of execution of sale agreement. Subsequently she obtained the sale deed dated 19.11.1976 as she had come to India. The plea of the plaintiff that the father has invested the money for purchase of the said property is not acceptable. The said property was continuously standing in the name of Mrs. Helen Bibiana Picardo from 1976 till her death on 23.04.1999. Though, the plaintiff is examined as P.W.2, nothing is placed on record to show that his father acquired the item No.1 of suit schedule 'A' property in the name of the mother. No supporting documents are produced to show that the amounts were drawn from the account of the father. Admittedly, another property bearing No. 283, RMV 2 nd Stage was allotted to Mr. Peter Vincent Picardo in the year 1978 by 30 O.S. 2900/2002 the BDA. BDA would not have allotted the site in his name, if he had any property in Bangalore. The said site was allotted subsequent to purchase of item No.1 of 'A' schedule property. As such, it has to be held that the said property was not belonged to the father. The recitals in Ex.P.6 would reveal that the entire sale consideration amount was paid by Mrs. Helen Bibiana Picardo. If the property was belonged to the father, he would have purchased the same in his name and there was no necessity to purchase in the name of his wife. The burden of proving that the property was purchased by his father in the name of the mother is on the plaintiff. But, the plaintiff has failed to establish the same. Even if the father had purchased the said property out of his funds in the name of the mother, the same would become absolute property of Mrs. Helen Bibiana Picardo after the death of the husband and since the parties are Christians and it does not get the characteristic of the joint family. The mother has executed the Will in favour of the defendant No.1. It also show that the property was belonged to her. As such, the plaintiff has no right to 31 O.S. 2900/2002 claim share in the said property.
15. It is not in dispute in this case that the sale deed with respect to item No.1 of plaint 'A' schedule property was executed in the name of mother of the plaintiff and defendants. The plaintiff has got marked the certified copy of the said Sale deed as Ex.P.6 and the LR's of defendant No.1 have got marked the original sale deed as Ex.D.7. The said sale deed also reveal that the sale deed has been executed in the name of the mother of the plaintiff and defendants. Though, the plaintiff has alleged in the plaint that the said property was purchased by his father in the name of his mother, no documents are produced by him to prove that the money for purchase of the said property was paid by his father. Admittedly, his father was working Abroad in Muscat. There should have been some documents regarding drawing of money from his Bank account or the transfer of funds to the Bank account of Mrs. Helen Bibiana Picardo. But, no such documents are produced by the plaintiff. Further, when the plaintiff alleges that the said property was purchased 32 O.S. 2900/2002 by his father in the name of his mother, the burden lies on him to prove the same. But, he has not produced any such documents to prove his contention. On the other hand, the sale deed marked as Ex.D.7 is executed in the name of Mrs. Helen Bibiana Picardo. In the said sale deed it is recited that, on 09.06.1976 an agreement of sale was executed in favour of the Power of Attorney Holder of Mrs. Helen Bibiana Picardo and an advance of Rs.10,000/- was paid at that time. It is also recited that a sum of Rs.5,000/- was paid through Cheque No.74/B115568 dated 25.06.1976 for Rs.5,000/- and the remaining amount of 5,000 was paid in cash. As such, the said document reveal that a sum of Rs.5,000/- was issued through a Cheque of the Bank account of the mother of the plaintiff. If really the father had purchased the said item No.1 of suit 'A' schedule property, he would have executed a Power of Attorney and would have purchased the same through the Power of Attorney Holder. As such, this fact also creates doubt regarding the case of the plaintiff.
33
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16. Further, the item No.1 of suit 'A' schedule property was purchased in the year 1976 and from the said year till 1998 it was standing in the name of mother of the plaintiff till her death. Either the father or the plaintiff and defendant No.2 have never questioned her right over the said property. The father expired in the year 1984 and he did not claim ownership over the said property during his life time. Hence, absolutely there are no materials to believe that the said property was purchased by the father in the name of mother. Further, there is no concept of joint family in the Christian Religion and the concept of putting a property to the hotch pot and consider it as a joint family property does not arise. In the decision relied on by the Counsel for the defendant reported in (2014) 10 SCC 731 in the case of Lalitha Theresa Sequeria (dead) by legal representatives Vs. Dolfy A Pias Alias Adolphys Joseph Pais and another, it is held that "Concept of joint family property or coparceners under Hindu Law is not applicable to Christians". He has also relied on another decision reported in 2019 SCC Online Mad 28035 in the case of 34 O.S. 2900/2002 Lourthunathan Vs. Pathinathan and Others, the similar principle is laid down". As such, the concept of Hindu Law regarding joint family cannot be applied with respect to item No.1 of schedule 'A' property.
17. Further, the LR's of defendant No.1 have got marked two Passports of the mother of the plaintiff as Ex.D.1 and D.2 by confronting the same to PW-2. Ex.D.1 Passport is issued on 18.08.1973. At page 14 of the said Passport, there is an entry that the profession of the mother Mrs. Helen Bibiana Picardo is changed from "dependent" which was noted at page 2 to "private service" from 28.12.1975. At page 11, there is an entry which show that she left in India in the year 1974. Both Ex.D.1 and D.2 reveal that several times the mother of the plaintiff has traveled to Muscat. Ex.D.2 is issued on 14.09.1978 and at page 2 profession is mentioned as private service. The LR's of defendant No.1 have contended in their written statement that the mother of the plaintiff was working in Muscat and she was also running a Novelty Gift Shop. D.W.1 has also stated the 35 O.S. 2900/2002 same in her evidence. Since she is the daughter-in-law of Mrs. Helen Bibiana Picardo and since her marriage took place long back after return of Mrs. Helen Bibiana Picardo to India, she is not having any knowledge about the purchase of item No.1 of suit 'A' schedule property. She has stated the same in her evidence at para 17. As such, the evidence of D.W.1 is not of much importance with regard to the same. The entries made in Ex.D.1 that Mrs. Helen Bibiana Picardo was permitted to do private services itself show that she was permitted to work. The said entry is made on 28.12.1975 and the suit schedule item No.1 property was purchased on 11.11.1976. As such, the said entry show that prior to purchase of the said property she was doing work at Muscat. The said entry strongly support the case of the LR's of defendant No.1 that the mother of the plaintiff has purchased the plaint 'A' schedule item No.1 property.
18. Further, P.W.2 has stated in his cross examination at para 3 page 7 that his parents were residing in Muscat from 1973 onwards. He has further 36 O.S. 2900/2002 stated at page 16 para 11 that his mother joined his father at Muscat in the year 1974. At page 17, he has admitted that in the Passport marked as Ex.D.1 that earlier his mother was shown as dependent and later the avocation of his mother is shown as private service. At page 18 of his cross examination he has admitted that his mother had executed a Power of Attorney in favour of Sulochana Fernandez for purchasing the suit 'A' schedule item No.1 property. He has further very clearly admitted that it is true to suggest that on 11.11.1976 by paying remaining balance sale consideration of Rs.60,000/- an absolute sale deed was obtained from original owner.
19. As such, if we carefully peruse the evidence of P.W.2 and the document marked as Exs.D.1 and D.7, they clearly show that the property was purchased by the mother of the plaintiff. Only because, no documents are produced regarding the running of Novelty Gift Shop at Muscat and regarding the income of the mother, it cannot be said that the defense taken by the LR's of defendant No.1 cannot be believed at all. Even the plaintiff has not 37 O.S. 2900/2002 produced any documents to show that his father has paid the sale consideration amount for purchase of item No.1 of suit 'A' schedule property. As such, the more degree of probability lies in favour of the LR's of defendant No.1. The plaintiff has failed to establish that the suit item No.1 of 'A' schedule was purchased by his late father in the name of his mother Mrs. Helen Bibiana Picardo and he is entitled for share in the said property. Hence, I answer Issue No.1 in the negative.
20. Issue No.5 :- The LR's of defendant No.1 have taken a contention in para 14 and 15 of their written statement that Mrs. Helen Bibiana Picardo during her life time had executed a Will in favour of the plaintiff and defendant No.1 in respect of item No.1 of suit schedule 'A' property on 17.12.1997. Later on 16.06.1998, she cancelled the earlier Will and executed another Will bequeathing item No.1 of suit schedule 'A' property in favour of the deceased defendant No.1 and the same was registered on 09.07.1998. Mrs. Helen Bibiana Picardo passed away on 23.04.1999 and since then the defendant 38 O.S. 2900/2002 No.1 became the absolute owner of item No.1 of suit schedule 'A' property. The LR's of defendant No.1 have got marked both the said Will's during the cross examination of P.W.2 by confronting the same to him as Exs.D.3 and D.4. When the Will dated 17.12.1997 was confronted to P.W.2, he has admitted the same at para 13 of his cross examination that the said Will was executed by his mother. The same was marked as Ex.D.3. Further, he has also admitted that Ex.D.3 is a registered Will and as per the recitals of the said Will he is entitled for first and second floor of the suit 'A' schedule item No.1 property and his brother - defendant No.1 was entitled for the ground floor. Then, when another Will dated 16.06.1998 which is marked as Ex.D.4 was confronted to him, he also admitted the same and has stated that it bears the signatures of his mother.
21. Further, P.W.2 has very clearly admitted in his cross examination that at the initial stage of filing the suit, he has not questioned the validity of both Exs.D.3 and D.4 Will's. He has further stated that at the time of 39 O.S. 2900/2002 executing Exs.D.3 and D.4, his mother was suffering from little bit of blood pressure and sugar and her general health condition was good. As such, P.W.2 has clearly admitted that the said Will's have been executed by his mother and at the time of execution of the Will's general health condition of his mother was good. D.W.1 has also stated in her evidence about the execution of Will by her mother-in-law. The LR's of defendant No.1 have also examined one of the attesting witness to Ex.D.4 Will as Ex.D.2. He has stated in his examination in chief that on 17.06.1998 one Advocate by name Venkappaiah requested him to sign as a attesting witness to a Will and he also introduced him to Mrs. Helen Bibiana Picardo. Thereafter, they went to the Sub-Registrar Office and Venkappaiah Advocate explained the contents of the Will to the executant in the presence of the witnesses including him. Having satisfied about the same Mrs. Helen Bibiana Picardo affixed her signatures on both pages of the Will. After that, he also put his signatures to the Will. He has identified the Will marked as Ex.D.4 and also identified the signature of Mrs. Helen Bibiana 40 O.S. 2900/2002 Picardo and another witness. They are marked as Ex.D.4(a) and 4(j). His signature is at Ex.D.4(c). As such, in order to prove the Will the LR's of defendants have examined an attesting witness as D.W.2.
22. The plaintiff has seriously disputed the said Will and has contended in para 18(a) of the plaint that the Will executed by his mother was executed under suspicious circumstances and it was executed under the undue influence of the defendant No.1. He has also contended that the Will was executed without free state of mind and it is shrouded in mystery which warrants a detailed examination. The plaintiff who is examined as P.W.2 has reiterated the same in his evidence.
23. During the course of the arguments, the Counsel for the plaintiff argued that there are suspicious circumstances with regard to the Will. The date mentioned in the Will is 16.12.1997, but the stamp paper is purchased on the next date i.e., 17.12.1997. As such, the Will is antedated and it creates a serious doubt with 41 O.S. 2900/2002 regard to the same. The execution of the Will is not the bone of contention. Will has to be free from suspicious circumstance and it should be executed with free Will. Two sons have been disinherited and there is no explanation in the Will regarding the same. Further, D.W.1 has no personal knowledge about the execution of the Will. She has stated in her evidence that she has no idea about the execution of the Will. The Will is not probated and administrator is not named in the Will. The attesting witness is a stranger to the family and to the executant. The evidence of D.W.2 does not have clarity. He says that he has put his signature as an attesting witness at the instance of his Advocate. It is common that the only the persons who are close relatives or friends will be the attesting witnesses to a document. In this case witness is a stranger. This itself creates a serious doubt regarding Ex.D.4 Will. He further argued that, the reason for cancellation of the earlier Will is also not mentioned in the subsequent Will. The spelling of the name of defendant No.1 is also wrongly mentioned. If the Will was executed by the mother, such a mistake would not have 42 O.S. 2900/2002 happened. The registration Will itself is not sufficient to prove that the Will is genuine. As such, the Will is not proved by the LR's of defendant No.1.
24. On the other hand, the Counsel for the LR's of defendant No.1 argued that Ex.D.3 and D.4 Will's have been marked during the evidence of P.W.2 by confronting the same to him. He has admitted the signatures of his mother on the Will's. He has also admitted the execution of the earlier Will marked as Ex.D.3 under which he is also a beneficiary. The defendant No.1 was a student at the time of execution of Will and he stayed with his mother all along. The plaintiff and defendant No.2 were employed in abroad and their earning was good. As such, the mother with an intention of helping her youngest son and since he was a student, she later changed her mind and executed Ex.D.4 Will in favour of the defendant No.1 with respect to item No.1 of suit 'A' schedule property. As such, there are no suspicious circumstances. The Will's are executed only to change the regular course of inheritance. As such, some persons would like to 43 O.S. 2900/2002 maintain secrecy. As such, the attesting witness is not a relative or friend of Mrs. Helen Bibiana Picardo. Only because the person who has nothing to do with the family has attested the Will, it cannot be held that the execution of the Will is not proved. The attesting witnesses is examined and he is a known person to the Advocate who has drafted the Will who is known to the executant. D.W.2 has clearly stated about the execution of the Will by Smt. Helen Bibiano Picardo and also about the registration of the same. Nothing is elicited in his cross examination to disbelieve his evidence. Further, P.W.2 has admitted the signature of his mother on the Will and as such there is no doubt with regard to the execution of the Will. P.W.2 has also admitted that the health condition of his mother was good at the time of execution of the Will. He further argued that since two sites were purchased in the name of the plaintiff and a bigger site was purchased by defendant No.2 after selling the site of the father, the mother thought of giving the suit 'A' schedule item No.1 property to her younger son who is defendant No.1 and as such it is not a suspicious 44 O.S. 2900/2002 circumstance. The said contention can be accepted as the said probability can be accepted and the said probability cannot be ruled out. Since the plaintiff has taken a contention that by undue influence, it is for him to prove the same by placing cogent and convincing materials. Absolutely, there is no evidence with regard to undue influence. As such, the Will has been proved as per law.
25. The Counsels of both sides have relied on several decisions with regard to proof of execution of Will and also removal of doubts regarding the suspicious circumstances. In the decision relied on by the Counsel for the plaintiff reported in (2008) 15 SCC 365 in which in the case of Lalitaben Jayntilal Popat Vs. Pragnaben Jamnadas Kataria and Others, it is held that "Whether a will is surrounded by suspicious circumstances or not is essentially a question of fact. Inferences of suspicious circumstances must be drawn having regard to the evidence on record. It is trite law that execution of a will must be held to have been proved not only when the statutory requirements for proving the will are satisfied 45 O.S. 2900/2002 but the will is also found to be ordinarily free from suspicious circumstances. When such evidence is brought on record, the Court may take aid of the presumptive evidences also". He also relied on another decision rendered by the Hon'ble Supreme Court of India in Civil Appeal No.5050/2009 in the case of Jarnail Singh and another Vs. Bhagwanti (D) Thr. LRs. and Ors. in which similar principles are laid down.
26. He has also relied on another decision reported in (2005) 1 SCC 280 in which in the case of Meenakshiammal (Dead) through LR's and Others Vs. Chandrasekaran and Others it is held that "if the propounder takes a prominent part in the execution of the will, which confers a substantial benefit on him, the propounder is required to remove the doubts by clear and satisfactory evidence. It is well settled that the propounder of a Will must establish the competence of the testator to make the will, at the time when it was executed". He has also relied on another decision reported in (2016) 13 SCC 449 in the case of B. 46 O.S. 2900/2002 Venkatamuni Vs. C.J. Ayodhya Ram Singh and Ors., in which it is held that "where there are suspicious circumstances, the onus is on the propounder to remove the suspicious circumstances by leading appropriate evidence".
27. He has also relied on a decision reported in 1962 AIR 567 in the case of Rani Purnima Devi and another Vs. Kumar Khagendra Narayan Dev and Others, in which it is observed that "there is no doubt that if a will has been registered, it is a circumstance which may, having regard to the circumstances, prove its genuineness. But, the mere fact that a will is registered will not be itself be sufficient to dispel all suspicions regarding it. The mere fact of registration may not be itself be enough to dispel all suspicion that may attach to the execution and attestation of a will". He has also relied on another decision reported in 1982 AIR 133 in the case of Indu Bala Bose and Others Vs. manindra Chandra Bose and Another, in which it is held that "no body would normally invite a stranger or a foe to be a 47 O.S. 2900/2002 scribe or a witness of a document executed by or in his favour; normally a known and reliable person, a friend or a relation is called for the purpose".
28. He has also relied on another decision reported in AIR 1989 SCR Supl.(2) 356 in the case of Kalyan Singh, London Trained, Cutter, Johri Bazar, Jaipur Vs. Smt. Chhoti and Others, in which it is observed that "where there are suspicious circumstances, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator". He also relied on another reported in AIR 1959 SCC 443 in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others., in which it is held that "the mode of proving a will does not ordinarily differ from that of proving any other document, except as to the special requirement of attestation of prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will, 48 O.S. 2900/2002 proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will can be accepted as genuine".
29. In the decision relied on by the Counsel for the LR's of defendant No.1 relied reported in AIR 1951 SC 280 in which in the case of Bishundeo Narain and another Vs. Seogeni Rai and Jagernath it is held that "in the case of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient. There should be clear averment as to fraud and the same applies to undue influence and coercion in view of Order 6 Rule 4 of CPC". He has also relied on another decision reported in AIR 1955 SC 363 in which in the case of Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta in which it is held 49 O.S. 2900/2002 that "it is elementary law that it is not every influence which is brought to bear on a testator that can be characterized as "undue". It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion, the will cannot be rejected on the ground of undue influence".
30. He has also relied on another decision reported in (1995) 4 SCC 459 in which in the case of Rabindranath Mukherjee and another Vs. Panchananbanerjee (dead) by LR's and others, in which it is held that "Deprivation of natural heirs by testatrix is not by itself a suspicious circumstance, identification of testatrix before Sub-Registrar by an Advocate who had acted as a lawyer of one of the executors in some cases also not suspicious circumstance. The circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of will is to interfere with the normal line of succession. So 50 O.S. 2900/2002 natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in other only partially". He has also relied on another decision reported in (1974) 2 SCC 600 in which in the case of Surendra Pal and Others Vs. Dr. Mrs. Saraswati Arora and another, it is held that "the propounder has to show that the Will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But, there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and 51 O.S. 2900/2002 unfair, or where there are other persons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases ,where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. In the cases, where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. Ultimately, it is the conscience fo the Court that has to be satisfied, as such the nature, and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. Where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same". 52
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31. He has also relied on another decision reported in (2005) 2 SCC 784 in the case of Sridevi and others Vs. Jayaraja Shetty and others, it it held that "Onus of proof is on the propounder to prove testamentary capacity and signature of the testator and to explain suspicious circumstances, if any. But, the onus to establish allegation of undue influence, fraud or coercion is on the persons making such allegations and the proof in either case should be one of satisfaction of a prudent man". He has also relied on another decision reported in (2014) 15 SCC 570 in which in the case of Leela Rajagopal and Others Vs. Kamala Menon Cocharan and Others, in which it is held that "the decision regarding all the unusual features and suspicious circumstances put together have to be taken into consideration and not on the basis of impact of any single feature or a singular circumstance. The participation by the beneficiary in the execution and registration of the will would not necessarily lead to an adverse conclusion. Testator not knowing English in which will drafted is inconsequential since Sub-Registrar would have explained the contents as 53 O.S. 2900/2002 per normal practice. Exclusion of sons is not a suspicious circumstance when reasons for the exclusion apparent from the Will itself". He has also relied on another decision reported in 2020 SCC Online SC 464 in which in the case of Kavita Kanwar Vs. Pamela Mehta and Others, in which it is held that "Ordinarily, a will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents. As per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounder is the last Will of the testator".
32. From the above decisions it is clear that the 54 O.S. 2900/2002 execution of the Will has to be proved as per Section 63 of Indian Succession act and section 68 of Indian Evidence Act. It is also clear that burden of proving the execution of the Will is on the propounder of the Will and if there are any suspicious circumstances, the same have to be removed by the propounder of the Will. It is also clear that when an allegation of fraud or undue influence is made, it is for the person who makes the allegation to prove the same.
33. In this case, the two Wills have been alleged to be executed by the mother which are marked as Exs.D.3 and D.4. Both the Wills have been marked by confronting the same during the cross examination of the plaintiff who is examined as P.W.2. He has identified the signatures of his mother on the Wills and he has clearly stated that her general health condition was good at that time. Further, LR's of defendant No.1 have examined the attesting witness as D.W.2 and he has clearly deposed about the execution of the Will by Mrs. Helen Bibiana Picardo and he has also also identified his signature on 55 O.S. 2900/2002 the Will marked as Ex.D.4. As such, as for as the execution of the Will by the testator and the signature on the same, there is no serious dispute. Further, the the said Will Ex.D.4 is a registered document. Though, the date of the Will is mentioned as 16.06.1998 and the stamp paper is purchased on 17.06.1998, if we carefully peruse the same, it can be seen that on the date of the purchase of the stamp paper, the Will has been registered. As such, on the same day it might have been typed. Only because the date is mentioned as 16.06.1998, the Will cannot be doubted or discarded. The counsel for the LR's of defendant No.1 has argued that since a draft was prepared on the previous day, the date might have been typed as 16.06.1998, As such, there is no doubt with regard to the same.
34. Further, only because the attesting witness is a stranger, the Will cannot be discarded on that ground. D.W.2 is known to the Advocate who has drafted the Will and he has clearly stated about the same in his evidence. P.W.2 has admitted that Ex.D.3 Will was executed by his 56 O.S. 2900/2002 mother. Under the said Will he was also the beneficiary and the first and second floor of item No.1 of 'A' schedule property was given to him. Later, under the second Will Ex.D.4, the property was only given to defendant No.1. As for as disinheritance of other two sons are concerned, it is not in dispute in this case that the plaintiff and the defendant No.2 are employed in Abroad. The defendant No.1 was a student at that time of death of his mother. P.W.2 has admitted in his cross examination regarding to the same. Further, he has also admitted that all along the defendant No.1 was residing with his mother . He has stated at page 21 of his cross examination that at the time of execution of both the Wills he was away from Bengaluru and he was staying in Dubai. He has stated at page 21 para 14 that till the death of his mother, the defendant No.1 was depending upon his mother and he was also depending on him. At page 22 of his cross examination he has admitted that at the time of death of his mother, the defendant No.1 was pursuing B.E. He has also admitted that at the time of death of his mother, he and defendant No.2 were having independent 57 O.S. 2900/2002 avocation and staying along with their families at Dubai. As such, he has clearly admitted that he and the defendant No.2 were working at abroad and defendant No.1 was a student at the time of death of his mother . Further, the defendant No.1 was staying all along with his mother till her death. As such, naturally the mother would be having some inclination and affection towards her younger son. As such, there are no suspicious circumstances regarding the disinheritance of other two children by the mother. Though, the plaintiff has taken a defense that there was undue influence by the defendant No1, there is no evidence to believe the same. There is also no pleading with regard to the alleged undue influence. Further, the plaintiff did not even say anything at the time of filing of the suit about the Wills executed by his mother. Though, he admits that under Ex.D.3 Will, a share was also given to him, he has not pleaded about the same earlier. It appears that intentionally he did not plead about the same and later by way of amendment, he denied the execution of the Ex.D4 Will. As such, if we peruse the entire materials on record absolutely there are 58 O.S. 2900/2002 no materials to disbelieve Ex.D.4 Will. The execution of the Will is proved in accordance with law and absolutely there are no suspicious circumstances surrounding the Will. Hence, I answer issue No.5 in the affirmative.
35. Issue Nos. 2, 3 and 6 :- Since these issues are interconnected, they are taken up together for discussion to avoid repetition. The plaintiffs have alleged in para 16 of the plaint that during her life time, Mrs. Helen Bibiana Picardo sold the property situated at RMV, II stage, which was allotted by the BDA for an over all consideration of Rs. 30 Lakhs and purchased sites at A.M.S Layout in the name of defendant No.1 and herself and two sites in the name of the plaintiff at Kasavanahalli on Sarjapur Road and one site in the name of defendant No.1 at K.C.P Layout on Sarjapur Road. In the schedule 'A' of the plaint three properties are shown as item Nos. 2 to 4. They are the site Nos. 85 and 31 situated at Chollabettahalli Village, Yelahanka Hobli and the site No. 625 and 626 situated at Kasavanahalli Village which are shown as item No.4. The plaintiff has got marked the 59 O.S. 2900/2002 certified copy of the sale deed with respect to plaint 'A' schedule item No.2 property and the same is marked as Ex.P.3. It reveal that the said sale deed is executed on 17.11.1995 in the name of mother of the p; Smt. Helen Bibiano Picardo. The plaintiff has not produced the documents pertaining to plaint 'A' schedule item Nos. 3 and 4 properties. The plaintiff has also not included the site purchased in his name at Kasavanahalli though he states that it was purchased by selling the site situated at R.M.V. II Stage which was allotted by the BDA in favour of his father.
36. The LR's of defendant No.1 have given details about the allotment of BDA site and about the purchase of sites after sale of the said property. In para 7 of their written statement they have contended that Mr. Peter Vincent Picardo who was employed in the Gulf Country, had applied for allotment of a residential site under the Dollar Scheme and the BDA allotted a residential site No. 283, 2nd Block, Rajmahal Vilas Extension measuring 50 X 80 feet for consideration of Rs.79,450/- and the said 60 O.S. 2900/2002 amount was entirely paid by Mr. Peter Vincent Picardo as per the receipt issued by BDA on 26.06.1984. He died on 25.10.1984 and subsequent to his death, the plaintiff, defendants and their mother made an application to BDA for re-allotment of the said site No. 283 and the said site was allotted in the name of the 2nd defendant and the khatha was also transferred to his name. They have further pleaded at para 9 that the plaintiff, defendants and their mother jointly sold the said property in favour of one M. Gopal Raju for valuable consideration of Rs.35 Lakhs during the year 1995 and out of the said sale consideration of Rs.35 Lakhs site bearing Nos. 57 and 58 situated at Kasavanahalli Village measuring 5240 Sq.ft was purchased in the name of plaintiff during September 1995. The property bearing No. 31 measuring 40 X 60 feet situated at Chikkabettahalli, Yelahanka Hobli, was purchased in the name of defendant No.2 on 27.09.1995 for a total sale consideration of Rs.3,60,000/- and an amount of Rs.5,00,000/- in cash was also given to him for his business. They have further contended that site Nos. 625 and 626 situated at Kasavanahalli Village were 61 O.S. 2900/2002 purchased in the name of defendant No.1 for Rs. 3,78,150/- and site No.85 measuring 1960 feet was purchased in the name of Mrs. Hellen Bibiana Picardo for Rs.4,00,000/-. Some amount was also spent towards income tax , Stamp duty, registration expenses and other incidentals by the mother Mrs. Hellen Bibiana Picardo. As such, the property left behind Mr. Peter Vincent Picardo was partitioned amongst the legal heirs of late Mr. Peter Vincent Picardo.
37. The LR No.1 of defendant No.1 who is examined as D.W.1 has reiterated the above facts in her evidence and she has also got marked the certified copy of the sale deed under which the said site No. 283 situated at R.M.V. was sold to one Gopal Raju and it is marked as Ex.D.19. She has also got marked the certified copies of the sale deeds through which other properties purchased by selling the said site and they have been marked as Exs.D.20 to D.23. Further, the defendant No.2 has also contended in his written statement at para 6 that out of the contribution made by him and plaintiff and his 62 O.S. 2900/2002 mother the property was obtained from BDA and after that it was sold at the insistence of his mother and the properties described as item Nos. 2 to 4 were purchased. As such, he has also admitted that a site was alloted by the BDA and it was sold and some properties are purchased. Though, he has contended that item No.3 of 'A' schedule is his absolute property, in view of the above pleading the same cannot be accepted. He has also not stepped into the witness box to prove that the suit 'A' schedule item No.3 property is his absolute property.
38. As such, the materials on record show that the father of the plaintiff and defendants was alloted site No. 283 of Rajmahal Vilas Extension II Stage measuring 50 X 80 feet by BDA and the plaintiff and defendants together along with their mother have sold the said site in favour of one Gopal raju during the year 1995 by executing the sale deed as per Ex.D.19. The LR's of defendant No.1 are contending that out of the sale consideration amount received from selling the site No. 283 of Rajmahal Vilas Extension, 6 sites have been purchased in the name of 63 O.S. 2900/2002 plaintiff, defendants and their mother. But, the p; has included only 3 sites in the 'A' schedule of the plaint. The plaintiff has not included the sites purchased in his name though he admits the purchase of sites in the plaint at para 16.
39. The LR's of defendant No.1 have specfically contended at para 26 of their written statement that the property situated at R.M.V. 2nd stage was sold and the sale proceeds were partitioned and the sites were purchased in the individual names of plaintiff, defendants and their mother. As such, they have contended that the property belonged to their father was sold and sale proceeds were divided during the life time of the mother and sites were purchased in the individual names of the plaintiff, defendants and their mother.
40. During the course of the arguments, the Counsel for the plaintiff argued that, selling of a property and purchase of some other property, does not amount to partition. The sale proceeds are not divided as 64 O.S. 2900/2002 contended by the defendant No.1. The properties are individually purchased and there is no evidence to believe that they were purchased out of the sale proceeds of the sale of the property situated at R.M.V. Extension. Though, it is alleged that the said site was sold for Rs.35 Lakhs, the sale consideration of sale deeds marked as Exs.D20 to D.23 does not amount to Rs.35 Lakhs. As such, there is no evidence to believe and accept the said contention.
41. On the other hand, the Counsel for the defendant No.1 argued that one site was alloted to the father of the plaintiff and defendants and he died before the execution of the Sale deed by the BDA in his favour. As such, the BDA executed the sale deed in favour of all the family members and the sale deed was registered in the name of defendant No.2. The plaintiff and defendants and their mother have jointly sold the said property and the sale proceeds were partitioned and sites have been purchased in the individual names of plaintiff, defendants and their mother.
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O.S. 2900/2002 42 . I have perused the entire material on record. On perusing the sale deed executed with respect to site No. 283, R.M.V. 2nd stage which is marked as Ex.D.19, it can be seen that the said sale deed was jointly executed by plaintiff, defendants and their mother in favour of one Gopal Rao. The L.R's of defendant No.1 have contended at para 26 of their written statement that, properties situated at R.M.V. 2nd stage was sold and the sale proceeds were partitioned and properties have been purchased in the individual names of plaintiff, defendant and their mother. As such, they have contended that the property belonged to their father was sold and the sale proceeds were distributed and sites were purchased in the individual names of Plaintiff, defendants and their mother.
43. D.W.1 has also got marked the Certified copy of sale deeds with regard to the purchase of sites as Exs.D.20 and D.23. It can be seen that Ex.D.22 is executed on 14.09.1995, Ex.D.23 is executed on 66 O.S. 2900/2002 21.09.1995, Ex.D.21 is executed on 27.09.1995 and Ex.D.20 is executed on 17.11.1995. As such, all the said sale deeds have been executed on the dates which were near to the sale deed marked as Ex.D.19. Though, the sale consideration amount in the sale deeds are different and though the extents and the location of the sites are different, it can be seen that they are purchased almost at the same time during which site No. 283 is sold as per Ex.D.19. Further, when there is a clear admission by the plaintiff in his evidence and when he has clearly alleged in the plaint that by selling the site alloted by BDA, sites have been purchased in his name and in the name of defendants and his mother, it has to be held that the sale proceeds have been divided among the sharers and after that the sites have been purchased in their individual names. These facts also show that the sale consideration amount received from sale of site no. 283 has been distributed among the children and mother and the sites have been purchased by them in their individual names.
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44. Further, the plaintiff who is examined as P.W.2 has admitted in his cross examination at page 7 that it is true to suggest that under NRI scheme his father applied for BDA site in Bengaluru in the year 1978. In pursuance of the said application to the BDA, the site measuring 50 X 80 was allotted to his father in the year 1978 at R.M.V Extension, 2nd stage. He has also admitted that his father had paid the entire cost of that site. Further, at page 9 of his cross examination he has admitted that it is true to suggest that on 11.09.1995 BDA executed the sale deed in favour of all the legal heirs of his father including him and his brothers and his mother. He has also admitted that the said property was sold and an absolute sale deed was executed in favour of Gopal Raju on 20.09.1995. Further, at page 13 of his Cross examination at para 8 he has admitted that out of the sale proceeds of his father's property, site no. 57 and 58 are purchased at Sarjapur Road in his name on 21.09.1995. He has also admitted that on 27.09.1995, site No. 31 was purchased in the name of defendant No.2 out of the sale proceeds of his father's name. He has also 68 O.S. 2900/2002 admitted that site Nos.625 and 626 of Kasavanahalli Village were purchased in the name of defendant No.1 out of the sale proceeds. He has further admitted that it is true that his mother purchased site No. 85 out of Chikkabettahalli was purchased in the name of his mother on 17-9-1995 out of the sale proceeds of his father's property. As such, there is clear admission by the plaintiff that out of the sale proceeds of the site alloted by the BDA infavour of his father suit 'A' schedule item Nos. 2 to 4 properties and other sites were purchased. As such, the materials on record show that only the item No.3 was purchased in the name of mother and other sites are purchased in the name of plaintiff and defendants. As such, as for as the suit 'A' schedule items No.2 to 4 properties are concerned, the plaintiff has clearly admitted that, they were purchased out of the sale proceeds of the site which was allotted to their father by the BDA. There is clear admission in the plaint itself. As such, the plaintiff and defendants will have the right to claim share only in the plaint 'A' schedule item No.2 property which is standing in the name of the mother. 69
O.S. 2900/2002 The materials on record clearly show that the property which was alloted to the father of the plaintiff and defendants was sold and sale price was distributed and sites have been purchased in their individual names. As such it has to be considered as the division of the father's property.
45. As for as suit schedule 'B' and 'C' properties are concerned, the plaintiff has not produced any documents regarding the existence of the same. Though, he has contended that his mother had possessed gold jewelleries, movable properties and also the Bank accounts and deposits which are mentioned in the 'B' and 'C' schedule of the plaint, he has failed to prove the existence of the same. In his cross examination at page 24 para 16 he has stated that he has not produced any data with regard to 'C' schedule property before the Court. He admits that item No.1 of 'C' schedule property is in the name of his mother. He has further stated at page 25 that item Nos. 2 and 3 of 'C' schedule properties are in the name of the mother and defendant no.1 cannot 70 O.S. 2900/2002 operate the said accounts. As such, since no documents are produced pertaining to existence of properties shown in the 'B' and 'C' schedule of the plaint, it cannot be held that the plaintiff is entitled for share in the said properties. Hence, I answer issue No.2 partly in the affirmative, Issue No.3 in the negative and Issue No.6 in the affirmative.
46. Issue No.7 :- As observed above, the materials on record clearly show that except the suit 'A' schedule item no.2 property, the other properties are not available for partition. The said suit item No.2 property is purchased in the name of mother after selling the site alloted to father by the BDA. As such, the plaintiff and defendants are entitled for equal share in the said property. Hence, LR's of defendant No.1 and defendant No.2 are also entitled for 1/3rd share in the said property. Hence, I answer Issue No.7 in the affirmative.
47. Addl. Issue No.1 :- The LR's of defendant No.1 have contended that the mother of the plaintiff 71 O.S. 2900/2002 purchased the item no.1 of 'A' schedule property in the year 1976 and the father died on 25.10.1984. The partition is claimed in the year 2002 after lapse of more than 18 years. As such, the suit is barred by limitation. But, for filing a suit for partition, there is no limitation. As such, the question of limitation for filing the partition suit does not arise. Hence, I answer Addl. Issue No.1 in the negative.
48. Addl. Issue No.2 :- The plaintiff has alleged in the plaint that the defendant No.1 is getting rents from item No.1 of 'A' schedule property. As such, he is entitled for accounts, rents and profits accrued from the said property. But, the materials on record clearly show that the said property was the self acquired property of the mother and she has bequeathed the same in favour of the defendant No.1 under the registered Will marked as Ex.D.4. As such, the question of rendering the accounts and mesne profits does not arise. Hence, I answer Addl. Issue No.2 in the negative.
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49. Issue Nos. 4 and 8 :- In view of the above finding on issue Nos. 1 to 3, 5 and 6 the plaintiff is entitled for 1/3rd share only in item No.2 of plaint 'A' schedule property. He is not entitled for any share in other properties shown in the schedule of the plaint. Hence, I answer issue No.4 partly in the affirmative and issue No.8 accordingly.
50. Issue No.9 :- In view of the above finding on Issue Nos. 1 to 8 and Addl. Issue No.1 and 2, the plaintiff is entitled for partition and separate possession of 1/3rd share only in item No.2 of 'A' schedule properties. Hence, the following is made :-
OR D ER The suit of the plaintiff is decreed in part.
The plaintiff is entitled for partition and separate possession of 1/3rd share in item No.2 of 'A' schedule properties by metes and bounds.73
O.S. 2900/2002 The suit filed by the defendant with respect to item Nos. 1, 3 and 4 of 'A' schedule properties and also 'B' and 'C' schedule properties is dismissed.
Both the parties are directed to bear their own costs.
Office is directed to draw decree accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 23rd day of December 2020.) (Jaishankar) C/C I Addl.City Civil & Sessions Judge, Bengaluru.
A N N E X U R E WITNESSES EXAMINED FOR THE PLAINTIFFS :-
PW.1 : MR. Steven Thomas Lobo PW.2 : MR. Glen Fredrick Picardo 74 O.S. 2900/2002 DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:-
Ex.P.1 GPA Ex.P.2 Genealogical Tree Ex.P.3 Sale Deed dated 17.11.1995 ExP.4 Certified copy of the Will executed by Helen Bibina Picardo dated 17.12.1997 Ex.P.5 Certified copy of the Will dated 09.07.1998 Ex.P.6 Certified copy of the Sale Deed dated 19.11.1976.
WITNESSES EXAMINED FOR THE DEFENDANTS:-
D.W.1 : Prathibha Rodney John Picardo D.W.2 : R.V. Giri DOCUMENTS MARKED ON BEHALF OF THE DEFENDANTS:-
Exs.D.1 Passports and 2 Ex.D.3 Will Ex.D.4 Ex.D.5 Marriage Certificate Ex.D.6 Death Certificate pertaining to Rodney John Picardo Ex.D.7 Original Sale Deed dated 11.11.1976 ExD.8 17 Tax paid Receipts Ex.D.9 Khata Certificate dated 04.12.1999 75 O.S. 2900/2002 Ex.D.10 8 Tax paid Receipts Exs.D.11 Property tax receipt for the year 2011 to D.15 to 201..
Exs.D.16 Pass Book pertaining to Helen B. and 17 Picardo Ex.D.18 Pass Book pertaining to Rodney John Picardo Ex.D.19 Certified copy of the Sale Deed dated 20.09.1995 Ex.D.20 Certified copy of the Sale deed dated 17.11.1995 Ex.D.21 Certified copy of the Sale Deed dated 27.09.1995 Ex.D.22 Certified copy of the Sale Deed dated 14.09.1995 Ex.D.23 Certified copy of the Sale Deed dated 21.09.1995 (Jaishankar) C/C I Addl.City Civil & Sessions Judge, Bengaluru.