Bangalore District Court
Narayanamma vs B.N. Sathyanarayana Swamy on 16 November, 2015
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 16th Day of November 2015.
Present: Sri. M.S.Patil, B.Sc., LL.B.
XXII Addl.City Civil & Sessions Judge.
Bengaluru.
O. S. No. 6708 /2008
PLAINTIFFS:- 1. Narayanamma,
Since deceased by her L.Rs.
1(a) Smt. Thungamma,
D/o Late. Narayanamm,
Aged about 65 years,
R/at No.23, 2nd Cross,
Bendre Nagar, Chikkalsandra,
Bengaluru-61.
1(b) Smt. Annapoorna,
D/o Late Narayanamma,
Aged about 53 years
1(c) Smt. Manjula,
D/o Late Narayanamma,
Aged about 45 years
Sl.No.1(b) and 1(c) are R/at
Venkateshwara Krupa, 10th Cross,
Viunayakanagar, Annasandrapalya
Extension, HAL Post, Bengaluru-17.
2. Srinivas Murthy,
S/o Late. Lakshmamma,
Aged about 60 years,
R/at No.19/2, Sapthagiri Krupa,
KGN Nivas, 3rd Main,
Palace Guttahalli,
Bengaluru.
2 O.S.No.6708/2008
3. N. Yellappa,
S/o Late. Lakshmamma,
Aged about 58 years
4. Smt. Rajamma,
D/o Late. Lakshmamma,
Aged about 55 years
5. Smt. Rajeshwari,
D/o Late.Lakshmamma,
Aged about 53 years,
Plaintiffs No.3 to 5 are R/at No.15,
Gajendra Nagar, Avalahalli Main
Road, Benglauru-26.
6. R. Sathyanarayan,
S/o Late. Sri. Ramaswamy and
Yellamma, Aged about 60 years,
R/at No.239, 3rd 'B' Cross,
Tolasamma Layout, Manarayana
Palya, R.T. Nagar, Bengalur-32.
7. R. Rajagopal,
S/o Late Sri. Ramaswamy and
Yellamma, Aged about 57 years,
R/at No.285, 9th Cross,
Raghu Nivas, BMK Nagar,
New Byappanhalli,
Bengaluru.
By Sri.Pradeep Naik.K, Advocate.
Vs.
DEFENDANTS:- 1. B.N. Sathyanarayana Swamy,
Since dead by his L.R.s
1(a) Smt. Nirmala,
W/o Nanjundeshwara,
D/o Sathyanarayanaswamy,
R/at No.243, 26th Cross,
Kagadaspura Main Road, C.V. Raman
Nagar, Bengaluru.
3 O.S.No.6708/2008
1(b) Smt. Sathyavathi,
W/o Vasanth Kumar,
D/o Sathyanarayana Swamy,
R/at No.48, CPRI Colony,
Ramaiah Hospital Road,
Bengaluru.
1(c) Smt. Kalavathi,
W/o Raghu,
D/o Sathyanarayana Swamy,
R/at No.20, 21st cross, Cubbonpet,
Bengaluru.
1(d) Jayaprakash,
S/o Sathyanarayana Swamy,
R/at No.9, 30th Cross, Kilari Road,
Bengaluru.
1(e) Badrinath,
S/o Sathyanarayana Swamy,
R/at No.9, 30th Cross, Kilari Road,
Bengaluru.
1(f) Smt. Shylaja,
W/o Sudesh Babu,
D/o Sathyanarayana Swamy,
R/at No.13, Indira Kuttir,
Annai Reddy Street,
Bengaluru.
1(g) Smt. Bharathi,
W/o Mohan Kumar,
D/o Sathyanarayana Swamy,
R/at No.25-26,
1st Main Road, J.P. nagar 1st phase,
Bengaluru.
By. Sri. P.V.D , Advocate.
Date of institution of suit 03-10-2008
Nature of the suit Partition and separate
possession
4 O.S.No.6708/2008
Date of commencement of 06-01-2014
recording of evidence
Date on which Judgment 16/11/2015
was pronounced
Total duration Days Months Years
13 01 07
JUDGMENT
This suit filed by the plaintiffs is for partition and separate possession of their 3/4th share in the suit property together with mesne profit from the date of the suit till the plaintiffs are put to actual possession of their respective shares together with costs and any other reliefs which court deems fit in the circumstances of the case.
2. The brief facts of the plaint averments are that, Veeranagappa @ B. Nagappa being original propositor had a wife by name Smt. Veeramma and that, Veeranagappa @ B. Nagappa had four daughters by name Kempamma, Narayanamma, Lakshmamma and Yellamma and one son by name Sathyanarayana Swamy and that, Kempamma died about 40 years back without issues and the other three daughters have also died leaving behind their legal heirs and that, Sathyanarayana Swamy being 5 O.S.No.6708/2008 the defendant in this case has also died during pendency of this suit and that, plaintiffs 1(a) to 1(c) are the legal heirs of Smt. Narayanamma and plaintiffs 2 to 5 are the legal heirs of Smt. Lakshmamma and plaintiffs 6 and 7 are the legal heirs of Yellamma and defendants 1(a) to 1(g) are the legal heirs of deceased defendant and that, the suit property is self acquired property of Veeranagappa @ B. Nagappa who had purchased the same from Thimmaiah - erstwhile owner under registered sale deed dated 22/12/1916 and that, said Veeranagappa @ B. Nagappa has died intestate and consequently, plaintiffs and defendants succeeded to the suit property as his legal heirs and thus, plaintiffs 1(a) to 1(c) being the legal heirs of Narayanamma have got 1/4th share jointly, and plaintiffs 2 to 5 being the legal heirs of Smt. Lakshmamma have jointly got 1/4th share and plaintiff No.6 and 7 being the legal heirs of Smt. Yellamma have jointly got 1/4th share and defendants 1(a) to 1(g) being the legal heirs of deceased defendant have got jointly 1/4th share in 6 O.S.No.6708/2008 the suit property and that, neither defendant nor legal heirs of defendant have given the share to the plaintiffs on demand. Hence this suit by the plaintiffs.
3. The defendant has filed his written statement wherein he admits the relationship between the plaintiffs and defendants and admits that, the suit property is self acquired property of his deceased father Veeranagappa @ B. Nagappa and admits that, Veeranagappa @ B. Nagappa and his wife Smt. Veeramma have died on dated 06/10/1968 and 30/11/1972 respectively and contend that, the plaintiffs have no share in the suit property on the ground that, Veeranagappa @ B. Nagappa has executed a registered Will Deed dated 08/03/1962 bequeathing the suit property in favour of defendant during his life time. On this ground the defendant has prayed for dismissal of this suit with costs.
4. The defendant has died during the pendency of the suit. Therefore, defendants 1(a) to 1(g) being the legal heirs of deceased defendant 7 O.S.No.6708/2008 have also filed additional written statement wherein they have averred almost all the averments of written statement of defendant.
5. On the basis of these rival contentions taken by the parties, following Issues are framed:
1. Whether the plaintiffs prove that, suit property is un-divided joint family property of the plaintiffs and defendant?
2. Whether plaintiffs have a share in the suit property?
3. Whether plaintiffs are entitled for mesne profit?
4. Whether the legal representatives of defendant prove that suit property was self acquired property of late Veeranagappa @ B. Nagappa?
5. Whether the legal representatives of defendant prove that the said B. Nagappa had executed the Will dated 08/03/1962 out of free will and sound mind?
6. Whether legal representatives of defendant prove that, plaintiffs are not entitled for a share in the suit property?
7. What Decree or Order?
6. In order to prove their case, the plaintiffs have examined 6th plaintiff as P.W. 1 and relied upon five documents marked as Ex.P.1 to P.5 and closed their side.
8 O.S.No.6708/2008
On the other hand, the Defendants examined defendant 1(b) as D.W.1 and relied upon 9 documents marked as Ex.D.1 to D.9 and closed their side.
7. Heard arguments of Learned Counsels for both the parties.
8. My answer to the above Issues are as under:
Issue No.1 - in the affirmative Issue No.2 - in the affirmative Issue No.3 - in the negative Issue No.4 - in the affirmative Issue No.5 - in the negative Issue No.6 - in the negative Issue No.7 -as per Final Order below; for the following:
REASONS
9. The relationship between the parties is admitted and it is also an admitted fact that, Veeranagappa @ B. Nagappa and his wife Smt. Veeramma have died on 06/10/1968 and 30/11/1972 respectively and it is also an admitted fact that, the suit property was purchased by 9 O.S.No.6708/2008 Veeranagappa @ B. Nagappa under registered sale deed dated 22/12/1916 from vendor- Thimmaiah.
10. Issue No. 1 and 5: For the sake of convenience and to avoid repetition of facts and that, these Issues are inter-linked and inter- connected with each other, these two Issues are taken-up together for common consideration.
11. The plaintiffs contend that, the suit property is joint family property of plaintiffs and defendants, as the same was purchased by their propositor by name Veeranagappa @ B. Nagappa under registered sale deed dated 22/12/1916 from Thimmaiah and after his death, the plaintiffs and defendants succeeded to the suit property as legal heirs of Veeranagappa @ B. Nagappa and that, plaintiffs 1(a) to 1(c) being the legal heirs of Narayanamma are entitled to 1/4th share jointly, and plaintiffs 2 to 5 being the legal heirs of Smt. Lakshmamma, are entitled jointly to 1/4th share and plaintiff No.6 and 7 who are the legal heirs of Smt. Yellamma are jointly entitled to 1/4th share and 10 O.S.No.6708/2008 defendants 1(a) to 1(g) being the legal heirs of deceased defendant are jointly entitled to 1/4th share in the suit property and defendants have refused and denied to give share to the plaintiffs on demand. Hence, this suit.
12. In order to substantiate these contention, the plaintiffs have examined 6th plaintiff as P.W. 1, who has reiterated the same facts in his evidence. Further, plaintiffs have relied upon Ex.P.2 to P.4 with Ex.P2(a) which are Certified copy of sale deed dated 22/08/1916, Typed copy of Ex.P.2, Death certificate of B. Nagappa and Katha Extract respectively.
13. On the other hand, the defendants though admit the relationship between the parties and admit that, the suit property is self acquired property of deceased Veeranagappa @ B. Nagappa on the ground that, the same is purchased by Veeranagappa @ B. Nagappa under registered sale deed from its erstwhile owner on dated 22/12/1916, Veeranagappa @ B. Nagappa has executed a registered sale deed dated 08/03/1962 in favour of 11 O.S.No.6708/2008 defendant bequeathing the suit property in his favour.
14. In order to substantiate their contentions, the defendants have examined D.1(b) as D.W.1 who has reiterated the same facts in her evidence before the court. Further, the defendants have relied upon Ex.D.1 original Will deed dated 08/03/1962 executed by Veeranagappa @ B. Nagappa in favour of defendant bequeathing the suit property.
15. Ex.D.1-original Will Deed dated 08/03/1962 said to have been executed by Veeranagappa @ B. Nagappa in favour of defendant is required to proved by defendants as per the provisions of Sec.63 of Indian Succession Act and under Sec.68 of Indian Evidence Act, by examining at least one of the attesting witnesses in to Court and in the event if attesting witnesses cannot be examined for the reasons of their death, or for similar reasons, then the person who is acquainted with the signature and handwriting of the attesting witnesses is to be examined in to Court to 12 O.S.No.6708/2008 prove the handwriting and signature of these attesting witnesses in the alleged Will Deed.
16. My view is supported by the decisions of Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka held in the decisions produced by the plaintiffs which are as follows:-
It is held in 2013(4) KCCR 2945 (SC) in case of M.B. Ramesh (D) by L.R.s Vs. K.M. Veeraje Urs (D) by L.R.s and others as under:-
"C- Succession Act-
Sec.63-Evidence Act, 1872-
Secs.90 and 68- Presumption relating to due execution of a 30 years old document does not apply to a Will and a Will has to proved as per Sec.68 by examining the attesting witnesses.
"D- Sec-63- Evidence Act, Secs.71 and 68- Sec.71 of Evidence Act enables party to produce other evidence to prove Will but the party is absolved from examining the attesting witness".
It is held in ILR 2009 KAR 992 in case of Smt. Giddamma and another Vs. Smt. Venkatamma (D) by L.R.s and others as under:-
13 O.S.No.6708/2008
"Secs. 67 to 69- Proof of execution of the document-
Mandatory requirement- Sec.69- Proof of a document where no attesting witness found- HELD- Sec.68 of the Act lays down the mode of proof of a document. The mandatory requirement is that, at least one of the attesting witnesses should be examined. Sec.69 provides for proof of a document where no attesting witness is found. The provision of Sec.69 contemplates that, the handwriting of at least one attesting witness and the signature of the person executing the document is required to be identified and proved through the witnesses. The proof of handwriting and /or the signature of a scribe is not the stipulation under Sec.69................ "Genuiness of Will - Proof of- Held, when the genuiness /execution of the Will is questioned, the due execution has to be proved by the person who produces the document to make or establish any claim. Hence, to prove the execution of the Will, the examination of at least one attesting witness is necessary. However, though a Will, ordinarily must be proved, keeping in view the provisions of Sec.63 of the Succession Act and Section 14 O.S.No.6708/2008 68 of the Act, in the event of unavailability of the attesting witnesses on account of death or similar circumstances being brought on record, the proof of execution of the will and attestation can be considered in the relaxed manner by having recourse to the exceptions provided under Secs.69, 70 and 71 of the Act.
Mere identifying the handwriting of the testator and signature of the scribe of the Will is of no legal consequences in proof of will and does not meet the stipulation under Sec.69. On the facts held - Ex.D.1 has neither been proved in terms of Sec.68 nor Sec.69 of the Act and hence, the courts below are justified in holding that the defendants have failed to prove the due execution of Ex.D.1 by late Narasamma.
It is held in ILR 2008 KAR 2115 in case of J.T. Surappa and another Vs. Sri. Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and others as under:-
"Sec 2(h)- Will- proof of - legal requirements- Duty of the court- Five steps to be considered- Under the Act, the Will to be valid, should be reduced in to writing, signed 15 O.S.No.6708/2008 by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. If these legal requirements are found, in the eye of law there is no Will at all"
17. In the instant case, deceased defendant and defendants being the legal heirs of defendant who contend that, Veeranagappa @ B. Nagappa has executed a registered Will Deed dated 08/03/1962 in favour of deceased defendant during his life time is not proved in to Court, since none of the attesting witnesses nor the person who is acquainted with the handwriting and the signature of these attesting witnesses (in case where it is shown that, attesting witnesses are dead or cannot be produced for similar reasons) is not examined in to Court. In view of this reason, the alleged Will Deed said to have been executed by Veeranagappa @ B. Nagappa in favour of defendant on dated 08/03/1962 bequeathing the suit property in his favour remained unproved.
16 O.S.No.6708/2008
18. Defendant and his children have got partitioned in respect of suit property during the life time of defendant vide Ex.D.2 copy of partition deed dated 20/08/2008. There is a recital in the said partition deed (Ex.D.2) that, Veeranagappa @ B. Nagappa has died intestate. In view of this recital in the partition deed dated 20/08/2008 which is effected after filing of this suit, doubt arises about the genuiness of the alleged Will Deed dated 08/03/1962 said to have been executed by Veeranagappa @ B. Nagappa in favour of defendant.
19. Defendant 1(b) who is examined as D.W.1 admits in her cross-examination that, "Ex.D.1 Will Deed do no bear the signature or thumb impression of her grand father on overwriting at page 2 of the Will Deed and that, " I do not know who has executed, who has dictated and who has signed Will Deed executed by my grand father in favour of my father and it is true that, the Will Deed is dated 08/03/1962 and it was in possession of my father (defendant) and these admissions go to show 17 O.S.No.6708/2008 the suspicious circumstances about the genuiness of the execution of Will Deed dated 08/03/1962 said to have been executed by Veeranagappa @ B. Nagappa.
20. The Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka have stated in the below following citations relied upon by the plaintiffsthat, though Will is proved through one of the attesting witnesses to the said Will as required under Sec.63 of Indian Succession Act and under Sec.68 of the Indian Evidence Act, however, the Will has also to be proved that, it is free from all the suspicious circumstances as to its genuiness.
It is held in AIR 2007 SC 2219 in case of Apoline D'Souza Vs. John D' Souza as under:-
"............... Several cuttings and over writings in Will- Establishing suspicious circumstances- Due execution of Will, cannot be said to be proved................ " ...............Suspicious circumstances- Has to be removed by propounder of Will- Having not done so, execution of Will, is not proved- Order declining to 18 O.S.No.6708/2008 grant letters of administration, proper It is held in 2013 (2) KCCR 1394 in case of Ramakrishnappa and others Vs. Rudramma and another as under:-
"............. In order to prove the Will, the propounder of the Will has to prove that on the date of the execution of the Will, the executant was in a sound state of mind. Further, if there are any suspicious circumstances surrounding the execution of the Will, it is his duty to dispel all the suspicious circumstances. If these two material factors are not established, notwithstanding the fact that the requirement of Sec.68 has been complied with, it cannot be said that the Will is proved. Mere examining of an attesting witness and the scribe would not prove the due execution of the Will. Similarly, because the Will is registered, no weight could be given to it. A Will is not a compulsory registerable document".
It is held in 2010 (2) KCCR 992 in case of Shanthinath Vs. Deputy Commissioner, Gulbarga Su- division and others as under:-
19 O.S.No.6708/2008
"Secs. 67 and 68- Will- Proof of- suspicious circumstance-
presence of disputed
registered Will- Whether
khata could be changed in to the name of the legatee under the Will- Held, No. Mere fact that Will is registered will not by itself be sufficient to dispel all suspicions regarding it where suspicion exists".
In Hindu Succession Act, 1956, Hindu Law and usage, at para No.8 it is held as under:-
"8. General Rules of Succession in the case of Males:- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-
(a) Firstly, upon the heirs, being the relatives specified in Class -I of the schedule.
(b) Secondly, if there is no heir of Class-I, then upon the heirs, being the relatives specified in Class-II of the schedule.
(c) Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
21. In view of my conclusion that, the Will Deed on which the defendants rely is not proved as 20 O.S.No.6708/2008 per the provisions of Sec.63 of Indian Succession Act and under Sec.68 of the Indian Evidence Act and that, it is not free from suspicious circumstances to contend that, it is a genuine document, I hold that, Will Deed remained unproved as of doubt and suspicious. Therefore, I am declined to accept the Will Deed as a genuine document and I hold that, the same is not proved as per the provisions of law.
22. After excluding Will Deed as genuine document and failed to prove as per the provisions of law as stated supra, I hold that, the defendants have not produced or put forth any other evidence to show that, the plaintiffs are not entitled to share in the suit property. In the light of admissions by the defendants and deceased defendant that, the plaintiffs are the legal heirs of deceased Narayanamma, Lakshmamma and Yellamma and that, Narayanamma, Lakshmamma and Yellamma are the sisters of deceased defendant, I hold that, the legal heirs of deceased sisters and deceased defendant have got share in the suit property. 21 O.S.No.6708/2008
23. The learned counsel for the plaintiffs has relied upon the following citations:-
It is held in 2013(4) KCCR 2945 (SC) in case of M.B. Ramesh (D) by L.R.s Vs. K.M. Veeraje Urs (D) by L.R.s and others as under:-
"C- Succession Act-
Sec.63-Evidence Act, 1872-
Secs.90 and 68- Presumption relating to due execution of a 30 years old document does not apply to a Will and a Will has to proved as per Sec.68 by examining the attesting witnesses.
"D- Sec-63- Evidence Act, Secs.71 and 68- Sec.71 of Evidence Act enables party to produce other evidence to prove Will but the party is absolved from examining the attesting witness".
It is held in ILR 2009 KAR 992 in case of Smt. Giddamma and another Vs. Smt. Venkatamma (D) by L.R.s and others as under:-
"Secs. 67 to 69- Proof of execution of the document-
Mandatory requirement- Sec.69- Proof of a document where no attesting witness found- HELD- Sec.68 of the Act lays down the mode of 22 O.S.No.6708/2008 proof of a document. The mandatory requirement is that, at least one of the attesting witnesses should be examined. Sec.69 provides for proof of a document where no attesting witness is found. The provision of Sec.69 contemplates that, the handwriting of at least one attesting witness and the signature of the person executing the document is required to be identified and proved through the witnesses. The proof of handwriting and /or the signature of a scribe is not the stipulation under Sec.69................ "Genuiness of Will - Proof of- Held, when the genuiness /execution of the Will is questioned, the due execution has to be proved by the person who produces the document to make or establish any claim. Hence, to prove the execution of the Will, the examination of at least one attesting witness is necessary. However, though a Will, ordinarily must be proved, keeping in view the provisions of Sec.63 of the Succession Act and Section 68 of the Act, in the event of unavailability of the attesting witnesses on account of death or similar circumstances being brought on record, the proof of execution of the will and 23 O.S.No.6708/2008 attestation can be considered in the relaxed manner by having recourse to the exceptions provided under Secs.69, 70 and 71 of the Act.
Mere identifying the handwriting of the testator and signature of the scribe of the Will is of no legal consequences in proof of will and does not meet the stipulation under Sec.69. On the facts held - Ex.D.1 has neither been proved in terms of Sec.68 nor Sec.69 of the Act and hence, the courts below are justified in holding that the defendants have failed to prove the due execution of Ex.D.1 by late Narasamma.
It is held in ILR 2008 KAR 2115 in case of J.T. Surappa and another Vs. Sri. Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and others as under:-
"Sec 2(h)- Will- proof of - legal requirements- Duty of the court- Five steps to be considered- Under the Act, the Will to be valid, should be reduced in to writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. If these legal requirements are found, in the 24 O.S.No.6708/2008 eye of law there is no Will at all"
It is held in AIR 2007 SC 2219 in case of Apoline D'Souza Vs. John D' Souza as under:-
"............... Several cuttings and over writings in Will- Establishing suspicious circumstances- Due execution of Will, cannot be said to be proved................ " ...............Suspicious circumstances- Has to be removed by propounder of Will- Having not done so, execution of Will, is not proved- Order declining to grant letters of administration, proper It is held in 2013 (2) KCCR 1394 in case of Ramakrishnappa and others Vs. Rudramma and another as under:-
"............. In order to prove the Will, the propounder of the Will has to prove that on the date of the execution of the Will, the executant was in a sound state of mind. Further, if there are any suspicious circumstances surrounding the execution of the Will, it is his duty to dispel all the suspicious circumstances. If these two material factors are not established, notwithstanding the fact that the requirement 25 O.S.No.6708/2008 of Sec.68 has been complied with, it cannot be said that the Will is proved. Mere examining of an attesting witness and the scribe would not prove the due execution of the Will. Similarly, because the Will is registered, no weight could be given to it. A Will is not a compulsory registerable document".
It is held in 2010 (2) KCCR 992 in case of Shanthinath Vs. Deputy Commissioner, Gulbarga Su- division and others as under:-
"Secs. 67 and 68- Will- Proof of- suspicious circumstance-
presence of disputed
registered Will- Whether
khata could be changed in to the name of the legatee under the Will- Held, No. Mere fact that Will is registered will not by itself be sufficient to dispel all suspicions regarding it where suspicion exists".
In Hindu Succession Act, 1956, Hindu Law and usage, at para No.8 it is held as under:-
"8. General Rules of Succession in the case of Males:- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-26 O.S.No.6708/2008
(a) Firstly, upon the heirs, being the relatives specified in Class -I of the schedule.
(b) Secondly, if there is no heir of Class-I, then upon the heirs, being the relatives specified in Class-II of the schedule.
(c) Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
24. On the other hand, the learned counsel for the defendants has relied upon the following citations:-
It is held in air 2005 sc 2897 in case of N.V. Srinivasa Murthy and others Vs. Mariyamma (D) by Lrs. as under:-
"O7, R.2 Rejection of plaint- Plaintiff borrowing money from defendant- sale deed to secure loan executed - Re- conveyance on repayment agreed- Repayment made by plaintiff - receipt with oral promise of re-conveyance obtained form defendant- subsequently mutation of land under sale deed made in favour of defendant- Suit thereupon filed by plaintiff for declaration that he is absolute owner and for 27 O.S.No.6708/2008 injunction- suit in fact is based on sale deed and not on order of mutation- cause of action arose when repayment was made- plaint liable to be rejected as barred by limitation- suit also held barred by O.2 R.2- costs imposed".
It is held in AIR 2008 SC 1786 in case of Jagat Ram Vs. Varinder Prakash as under:-
"Limitation Act- Art.65- suit for possession based on title- limitation -fit of suit property by father in favour of plaintiff, daughter- mother allowed to enjoy suit property for her life time under compromise decree- death of mother- possession of defendant becomes adverse from that date- plaintiff has to file suit for possession within 12 years of death of mother- Fact that litigation between plaintiff and her mother relating to adoption deed and gift deed executed by mother was pending at time of mother's death- does not postpone running of limitation as possession was not claimed by plaintiff in that suit".
It is held in AIR 2010 SC 2807 in case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others as under:-
28 O.S.No.6708/2008
"Court fee- suit for declaration that sale deed executed by plaintiff's father is null and void and for joint possession- is not a suit for cancellation of sale deed-
court fee need not be paid on sale consideration mentioned in sale deeds- court fee payable is computable under Sec.7(iv)(c)".
It is held in AIR 2011 Patna 40 in case of Jagdish Tiwary and others Vs. Lalita Kuer and others as under:-
"Limitation Act- Suit for declaration of gift deed as void- Limitation- it was not case of plaintiff that gift deed was void ab initio- Art.113 would not be applicable- period of limitation would be three years in terms of Art.59 form date of plaintiff's knowledge about the deed".
It is held in 2008 (3) KCCR 1465 in case of N. Hanumantharaya Vs. Smt. Mariyamma and others as under:-
"B. Limitation Act- Sec.59- Suit for setting aside of an instrument or decree- Limitation -held the period of limitation in such a suit is three years form the date of such instrument or decree or 29 O.S.No.6708/2008 from the date of its knowledge".
It is held in 2008 (5) KCCR 3546 in case of Siddalingaiah (D) by lrs Vs. H.K. Kariappa as under:-
"B. Limitation Act- Sec. 3- plea of suit being barred by limitation- can question of bar of limitation to suit be raised even without pleading- Held- Yes".
It is held in 2009 (2) KCCR 893 in case of Shanthappa and others Vs. Channabasavaiah and others as under:-
" Limitation Act- Art.110- suit for partition and separate possession- partition was effected among two brothers without joining another brother to the knowledge of the left out brother- partition had took place about fifty years back- held, the suit filed in the year 1982 was barred by limitation".
It is held in 2009 (2) KCCR SN 44 in case of Muniyappa Vs. Kendamma and another as under:-
"C. suit for partition-
Limitation- suit well with in period of limitation- the relationship admitted- mere fact that,- the revenue entries shows the name of other 30 O.S.No.6708/2008 members could be a ground to deny partition?- No".
It is held in 2011 (1) KCCR 421 in case of Kanteppa and other Vs. Smt. Vimalabai and others as under:-
"C- Sec.30- Will- execution of- whether the will executed by the deceased Gurubassappa and defendant No.3, Mahadappa, can be negated?- Held- No- in the absence of any prayer in the suit, to declare the Will executed by Gurubasappa and Mahadappa as null and void, the trial court has without jurisdiction, proceeded to declare the same as null and void".
It is held in 2012 (4) KCCR SN 193 (DB) in case of Basappa Vs. Smt. Nagarathnamma and others as under:-
"A. Partition- unregistered palupatti made under threat and coercion- parties not action upon- not getting entries in revenue records changed in accordance therewith- trial court directing to divide properties as per such palupatti- Not proper- more so when a registered partition deed is in exercise".31 O.S.No.6708/2008
It is held in 2014 (2) KCCR 1587 in case of H.M. Rudraradhya Vs. Uma and others as under:-
".......... Trial court dismissed the suit as barred by limitation on the ground that Art.60 of the Limitation Act is applicable to suit and that suit was not filed within 3 years from the date of attaining majority- first appellate court held that, it is Art.109 of Limitation Act which is applicable and decreed the suit for 1/3rd share- Held, suit land was not a joint family property- Provisions of Secs. 6 and 8 of Hindu Succession Act are not applicable as the said provisions either deal with a joint family property or succession to the property of a male".
25. The citations which are relevant to the facts of the case have been followed by me.
26. The learned counsel for the defendants contend that, the suit is barred by limitation as the plaintiffs have not filed the suit within stipulated time from the date of execution of Will Deed by Veeranagappa @ B. Nagappa in favour of defendant, although the plaintiffs were knowing about the execution of Will Deed by Veeranagappa @ B. 32 O.S.No.6708/2008 Nagappa in favour of defendant. This contention of defendants cannot be accepted in view of the citations referred by the plaintiff which are cited below:-
It is held in 2015 (2) KCCR 1437 (DB) in case of Smt. Nanjamma Vs. Smt. Akkayamma since dead by her L.R.s and others as under:-
"D. Suit for partition-
Limitation- Limitation Act
prescribes no time limit for filing a suit for partition by a co- sharer or co-owner. However, under Article 1120, 12 years is the period prescribed for filing a suit by person who is excluded from a joint family property to enforce a right to a share and the starting point for limitation is when the exclusion becomes known to the plaintiff".
It is held in ILR 1988 Karnataka 1095 in case of Indira Bai Vs. Prof. Shyamasundar as under:-
"C- Limitation Act- Article 65- Governs suit for share in properties which are not joint family properties- Unity of interest and possession continuing, suit only when there is threat to right- Refusal to be maintained, although in joint possession 33 O.S.No.6708/2008 properties, is occurrence of such threat".
It is held in AIR 1986 SC 79 in case of Bhagwant.P. Sulakhe Vs. Digambar Gopal Sulakhe and others as under:-
"A. Joint family property- Severance of status of joint family- It has no effect on joint family property- Property continues to be joint until partitioned.
The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so loan as the joint family property is in existence and is not partitioned amongst the co- sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property in to his personal property".
27. In view of the foregoing discussions and reasons stated supra, I hold Issue No.1 in the affirmative and Issue No.5 in the Negative.
28. ISSUE Nos.2, 4 AND 6:- In view of my answer to Issue No.1 in the affirmative I hold issue 34 O.S.No.6708/2008 No.2 and issue No.4 in the affirmative and issue No.6 in the negative.
29. ISSUE No.3:- Plaintiffs have not adduced any evidence to substantiate this issue. Further, it is on record that, one of the plaintiffs is residing in portion of suit property. Hence, this issue is held in Negative.
30. ISSUE No.7:- In view of the foregoing reasons and in the result, I proceed to pass the following:
ORDER Suit of the plaintiffs is decreed. The plaintiffs are together entitled to 3/4th share in the suit property i.e., Plaintiffs 1(a) to 1(c) are jointly entitled to 1/4th share in the suit property. Plaintiffs 2 to 5 are jointly entitled to 1/4th share in the suit property and plaintiff No.6 and 7 are jointly entitled to 1/4th share in the suit property.
The defendants 1 (a) to 1(g) shall handover the share of the plaintiffs as stated above in the suit property within two months from the date of decree, failing which the plaintiffs are entitled to take 35 O.S.No.6708/2008 their respective shares by taking recourse to law.
The parties are directed to bear their own costs.
Draw preliminary decree accordingly.
(Dictated to the Stenographer, computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 16th day of November 2015.) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.36 O.S.No.6708/2008
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 R. Sathyanarayan List of witnesses examined for defendants:
D.W.1 Smt. S. Sathyavathi List of documents exhibited for the plaintiff:
Ex.P1 - Genealogical tree Ex.P2 - Certified copy of sale deed dated 22/08/1916 Ex.P2(a) - Typed copy of Ex.P.2 Ex.P3 - Death certificate of B. Nagappa Ex.P4 - Katha Extract Ex.P5 - Certified copy of partition deed dated 20/08/2008 List of documents marked for defendants:
Ex.D1 - Original Will deed dated 08/03/1962 Ex.D2 - Copy of registered partition deed dated 20/08/2008 Ex.D3 - Death certificate of defendant Sathyanarayana Ex.D4 - Katha certificate Ex.D5 - Katha extract Ex.D6 - Tax paid receipt Ex.D7 - Encumbrance Certificate 37 O.S.No.6708/2008 Ex.D8 - Electricity bill Ex.D9 - Water bill (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.38 O.S.No.6708/2008
16/11/2015 Judgment passed and pronounced in Open Court. (vide separate). Operative portion thereof reads as under:
Suit of the plaintiffs is decreed. The plaintiffs are together entitled to 3/4th share in the suit property i.e., Plaintiffs 1(a) to 1(c) are jointly entitled to 1/4th share in the suit property. Plaintiffs 2 to 5 are jointly entitled to 1/4th share in the suit property and plaintiff No.6 and 7 are jointly entitled to 1/4th share in the suit property.
The defendants 1 (a) to 1(g) shall handover the share of the plaintiffs as stated above in the suit property within two months from the date of decree, failing which the plaintiffs are entitled to take their respective shares by taking recourse to law.
The parties are directed to bear their own costs.
Draw preliminary decree
accordingly.
XXII A.C.C. & S.J., Bengaluru.39 O.S.No.6708/2008