Bangalore District Court
Subramani K vs Vijaya K on 13 June, 2024
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O.S.No.913/2012
KABC010143532011
IN THE COURT OF IX ADDL.CITY CIVIL AND SESSIONS JUDGE
AT BENGALURU (C.C.H.5)
Dated: This the 13th day of June 2024
Present : Mamtaz, M.A., LL.B., P.G.D.C.A.
IX Addl. City Civil & Sessions Judge,
Bengaluru
O.S. NO.2474/2011 CLUBBED WITH O.S.NO.913/2012
O.S.No.2474/2011
Plaintiff : Smt.K.Vijaya, w/o. M.Kodandaram,
aged about 40 years,
r/at portion of 769/13,
80 feet road, 5th cross, 6th Block,
Dr.Rajkumar Road, Rajajinagar,
Bengaluru-10
[By Sri.S.G.Venkatachalpathi,
Advocate]
- Vs -
Defendant : Sri.K.Subramani,
s/o. Late Kandaswamy,
aged about 50 years,
r/at portion of No.769/13/1,
80 feet road, 5th cross, 6th Block,
Dr.Rajkumar Road, Rajajinagar,
Bengaluru-10
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O.S.No.913/2012
(By Sri.N.S.B. Advocate)
Date of institution
of the suit : 01.04.2011
Nature of the suit : Injunction
Date of the commencement
of recording of the evidence : 26.06.2014
(Since
O.S.No.2474/2011
clubbed with
O.S.No.913/2012
evidence is
commenced on
26.06.2024)
Date on which the
Judgment was pronounced : 13.06.2024
Year/s Month/s Day/s
Total Duration -13- -02- -12-
O.S.No.913/2012
Plaintiff : K.Subramani, s/o. Kandaswamy,
aged about 53 years,
r/o. No.769/13/1, 5th cross,
6th Block, Dr.Rajkumar road,
Rajajinagar, Bengaluru-560010.
[By Sri.N.S.B. Advocate]
- Vs -
Defendants : 1. Smt.K.Vijaya, w/o. M.Kodandaram,
Hindu, aged about 41 years.
2. Sri.M.Kodandaram @
Kodandaramam
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O.S.No.913/2012
Since dead by LRs
a. Smt.K.Vijaya,
w/o. Late M.Kodandaram @
Kodandaraman
b. Sri.Santosh,
s/o. Late M.Kodandaram @
Kodandaraman,
aged about 27 years
c. Smt.Lakshmi,
D/o. Late M.Kodandaram @
Kodandaraman,
aged about 24 years
d. Sri.Prabhu,
s/o. Late M.Kodandaram @
Kodandaraman,
aged about 24 years
All are r/o. A portion of
No.769/13, 5th cross, 6th Block,
Dr.Rajkumar Road, Rajajinagar,
Bengaluru-560010.
3. The Commissioner,
Bruhat Bengaluru Mahanagara
Palike, N.R.Square,
Bengaluru-560001. (DELETED)
(By Sri.K.S. Advocate for
defendant and Sri.R.C. for D-3)
Date of institution
of the suit : 30.01.2012
Nature of the suit : Declaration and
Possession
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O.S.No.913/2012
Date of the commencement
of recording of the evidence : 26.06.2014
(Since
O.S.No.2474/2011
clubbed with
O.S.No.913/2012
evidence is
commenced on
26.06.2024)
Date on which the
Judgment was pronounced : 13.06.2024
Year/s Month/s Day/s
Total Duration -13- -02- -12-
(MAMTAZ)
IX Addl. City Civil & Sessions Judge,
Bengaluru.
-----
COMMON JUDGMENT
This is a suit for injunction.
2. Brief facts of the plaintiff case is that, in O.S.No.2474/2011
the plaintiff is the absolute owner of the house property bearing
BDA No.769, Municipal No.13, BBMP Ward No.108, situated at 6 th
Block, 80 feet road, Dr.Rajkumar Road, Rajajinagar, Bengaluru
consisting of RCC roofed house property, measuring East to West
25 feet and North to South 15 feet. Originally the suit schedule
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O.S.No.913/2012
property have acquired by the father in law of plaintiff viz., late
Mayandhi through registered sale deed dated 06.09.1996 issued
by the BDA during the life time of late Mayandhi he was in lawful
and enjoyment of the same. But the plaintiff father in law have
died in the year 1998 leaving behind the plaintiff husband
Kodandarama and the suit schedule property. After the death of
plaintiff's father in law the husband of plaintiff succeeded the
suit schedule property and he was been in lawful possession and
enjoyment of the suit schedule property being the absolute
owner the husband of the plaintiff have executed a registered
gift deed in favour of the plaintiff dated 22.08.2007 in respect of
the suit schedule property out of love and affection and also the
plaintiff husband have executed a rectification deed of gift since
there is a some mistake in the gift deed and also the husband of
the plaintiff have put the plaintiff in physical possession of the
suit schedule property. Thus the plaintiff have been in lawful
possession of the suit schedule property. After the plaintiff have
acquired the suit schedule property under the said registered
gift deed the khatha in respect of the suit schedule property
have changed in favour of the plaintiff and also the plaintiff have
been paying revenue taxes to the concerned authority. On the
suit schedule property there exists four residential houses, the
plaintiff is residing in one portion and the plaintiff have let out
three residential houses to the tenements on lease basis. The
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plaintiff is the absolute owner in enjoyment of the suit schedule
property have acquired under registered gift deed. But the
defendant who is utter stranger to the suit schedule property
came to the suit schedule property along with anti social
elements and started interfere with the plaintiff peaceful
possession and enjoyment of the suit schedule property on
26.03.2011 and claiming his unlawful rights over the same and
told that the suit schedule property belongs to defendant and
the plaintiffs have requested defendants not to interfere with
plaintiff possession of the suit property. The plaintiff have
explained that, the suit schedule property belongs to the plaintiff
having acquired under registered gift deed executed by her
husband and she has been residing in the suit schedule
property. But the defendant who are a professionally land
grabber have not heeded the words of the plaintiff but the
plaintiff with great difficulty have resisted the illegal interference
of defendant with the help of neighbours and well wishers but
the defendant left the place by uttering that, at any point of time
they will come again and to take possession of the suit schedule
property. The plaintiff have approached the jurisdictional police
to give protection against the defendant for illegal interference
in respect of the suit schedule property but the police have not
taken any action against the defendant, since matter is in civil in
nature and advised plaintiff to approach Court of law. The
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defendant is politically, financially sound and physically and
capable of doing anything at any time. The defendant is capable
of doing anything at any moment. If the defendant allowed to
do so the plaintiff will be put to irreparable loss, hardship and to
lose his property. Hence the plaintiff is unable to resist the
illegal acts of the defendant and constrained to file the suit to
safeguard his property. The cause of action for the suit arose on
26.03.2011 when the defendant tried to interference with the
plaintiff suit property and subsequently defendant have been
trying to do the same. Hence, this suit.
3. After receipt of the suit summons, the defendant
appeared through his counsel. The defendant filed written
statement contending that, the averments made in para No.3
and 4 are denied as false in toto. It is further contended that,
the suit is not maintainable either in law or on facts. It is further
contended that, late Mayandi during his life time has executed a
Testamentary Will dated 12.04.1996, wherein late Mayandi has
bequeathed southern portion measuring East to West 40 feet
and North to South (19 + 15)/2 feet (demarcated as 'B' schedule
property in the said Testamentary Will), to the plaintiff's
husband Kodandarama @ Kodandaram @ Kodandaraman and
the remaining portion which this suit schedule property forms
part of northern portion measuring East to West 40 feet and
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North to South (19 + 15)/2 feet) (demarcated as 'C' schedule
property in the said Testamentary Will) to the plaintiff's sister in
law, i.e., her husband's sister and late Mayandi's daughter
P.Vanitha, wife of T.Pasupathi. During his life time and before
the Testamentary Will could take effect, the father in law of the
plaintiff, late Mayandi has sold the southern portion bequeathed
to his son Kodandarama @ Kodandaram @ Kodandaraman, the
plaintiff's husband for a consideration in favour of defendant,
vide sale deed dated 11.10.1996. The husband of the plaintiff,
Kodandarama @ Kodandaram @ Kodandaraman has signed as a
witness to the sale deed dated 11.10.1996, thereby accepting his
father's intention to exclude him in the Will dated 12.04.1996
which came into effect on his death, the suit schedule property
has fallen to the share of the plaintiff's sister in law Vanitha wife
of Pasupathi who on becoming the absolute owner of the same
by testamentary succession has executed two sale deeds in
favour of the defendant for valuable consideration, sale deed
dated 25.06.2001 in respect of the portion adjoining the suit
schedule property and sale deed dated 02.11.2007 in respect of
suit schedule property. An error in the sale deed dated
02.11.2007 has been rectified by executing rectification deed
dated 28.05.2009. The husband of the plaintiff, Kodandarama @
Kodandarama @ Kodandaraman has confirmed the recitals of
the sale deed dated 25.06.2001. After the execution and
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registration of the sale deed dated 11.10.1996 and sale deed
dated 25.06.2001, the defendant has applied for and has
obtained the transfer of the khatha in his name in the revenue
records the jurisdiction municipal authority, the BBMP and the
BBMP has issued new Municipal NO.769/13/1. It is pertinent to
note that, though the defendant has become the absolute owner
of the entire property bearing CITB site No.769, Rajajinagar,
Bengaluru Municipal No.769/13, Dr.Rajakumar Road,
Corporation though the three conveyance deeds, sale deed
dated 11.10.1996 and sale deed dated 02.11.2007, the plaintiff
has got the khatha transferred only in respect of the properties
purchased by the defendant under sale deed dated 11.10.1996
and the sale deed dated 25.06.2001 and not under sale deed
dated 02.11.2007. In the meanwhile, before the execution and
registration of the sale deed dated 02.11.2007, the plaintiff's
husband Kodandarama @ Kodandaram @ Kodandaraman, who
is aware of the testamentary Will of his father, Mayandi and who
has witnessed the execution of the sale deed dated 11.10.1996
and sale deed dated 25.06.2001 with an intention to cheat the
defendant and with an intention to defeat the intention of his
father late Mayandi in his testamentary bequeathal of the suit
schedule property to his daughter, Vanitha has fabricated and
created a false gift deed dated 22.08.2007, gifting the suit
schedule property in favour of his wife, the plaintiff and getting
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the same and its subsequent schedule East to West boundary
rectification, rectification deed dated 06.10.2007 respectively.
The defendant reserves his right to file a suit for declaration,
possession and consequential cancellation of the gift deed and
its rectification. In this manner, the defendant has become the
absolute owner of the suit schedule property which is a part of
entire property earlier belonging to the plaintiff's father in law,
late Mayandi and the plaintiff has no manner of right, title or
interest in the suit schedule property and the gift deed dated
22.08.2007 and its rectification deed dated 06.10.2007 are null
and void in view of the testamentary bequeathal by the
plaintiff's father in law, late Mayandi in his Will dated 12.04.1996
and the suit does not survive. Hence, the defendant deserves to
be dismiss the suit.
4. Heard the arguments.
5. On the above pleading of the parties, this Court has raised
issues as follows :
1. Whether the plaintiff to that the plaintiff is lawful
possession of the schedule property?
2. Whether the plaintiff is entitled for the relief of
permanent injunction, restraining from interfering
with the suit schedule property?
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O.S.No.913/2012
3. What order and decree?
6. After hearing arguments and considering the oral and
documentary evidence on record, my findings on the above
issues are here under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : As per final order
for the following:
7. Brief facts of the plaintiff case in O.S.No.913/2012 is that,
the plaintiff is the absolute owner of the house property bearing
new Municipal No.769/13, (old No.769), Dr.Rajkumar Road,
Bengaluru comprising of a dwelling unit of 3 squares ACC sheet
roof house with brick wall red oxide flooring, jungle wood doors
and windows with water, light and sanitation having acquired
the same for a valuable consideration from the 2 nd defendants'
sister Vanitha vide sale deed dated 25.06.2001. The 1 st
defendant is claiming ownership by way of a gift from her
husband, the 2nd defendant herein, gift deed dated 22.08.2007,
gifting the suit schedule property in favour of his wife, the 1 st
defendant and getting the same. One Mayandi during his life
time has executed a Testamentary Will dated 12.04.1996
wherein Mayandi has bequeathed southern portion measuring
East to West 40 feet and North to South (19 + 15)/2 feet ('B'
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schedule property in the said Testamentary Will) to the 2 nd
defendant and the remaining portion which this suit schedule
property which forms part of northern portion measuring East
to West 40 feet and North to South (19 + 15)/2 feet ('C' schedule
property in the said Testamentary Will) to the 1 st defendant's
sister in law, that is, the 2nd defendant's sister and late
Mayanthi's daughter Vanitha wife of Pasupathi. During the life
time of late Mayandi and before the Testamentary Will could
take effect, late Mayandi has sold the southern portion
(bequeathed to his son the 2 nd defendant under the Will), for a
consideration in favour of the plaintiff. The husband of the 1 st
defendant, 2nd defendant has signed as a witness to the sale
deed dated 11.10.1996. It is further submitted that, late
Mayandi died on 15.09.1998. as per the wishes expressed by
late Mayandi in the Testamentary Will dated 12.04.1996, which
came into effect on his death, the suit schedule property (which
forms part of the northern portion measuring East to West 40
feet and North to South (19 + 15)/2 feet demarcated as 'C'
schedule property in the said Testamentary Will) has fallen to the
share of the 1st defendant's sister in law P.Vanitha, wife of
Pasupathi, who on becoming the absolute owner of the same by
testamentary succession, has executed two sale deeds in favour
of defendant for valuable considerations, sale deed dated
25.06.2001 in respect of the portion adjoining the suit schedule
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property and sale deed dated 02.11.2007 in respect of the suit
schedule property. An error in the sale deed dated 02.11.2007
has been rectified by executing rectification deed dated
28.05.2009. The husband of the 1 st defendant, 2nd defendant has
confirmed the recitals of the sale deed dated 25.06.2001. After
the execution and registration of the sale deed dated 11.10.1996
and sale deed dated 25.06.2001, the defendant has applied for
and has obtained the transfer of the khatha in his name in the
revenue records the jurisdiction municipal authority, the BBMP,
the 3rd defendant and the 3rd defendant has issued New
Municipal No.769/13/1. It is pertinent to note that, in this
manner, though the defendant has become the absolute owner
of the entire property bearing CITB site No.769, Bengaluru
Municipal NO.769/13, Dr.Rajkumar road, Corporation though the
three conveyance deeds, sale deed dated 11.10.1996. the
plaintiff has got the khatha transferred from the 3 rd defendant in
his favour only in respect of the properties purchased by the
plaintiff under sale deed dated 11.10.1996 and sale deed dated
25.06.2001 and not sale deed dated 02.11.2007. In the
meanwhile, before the execution and registration of the sale
deed dated 02.11.2007, the 2 nd defendant who is aware of the
testamentary will of his father, late Mayandi and who has
witnessed the execution of the sale deed dated 11.10.1996 and
sale deed dated 25.06.2001 with an intention to cheat the
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plaintiff and with an intention to defeat the intention of his
father late Mayandi in his testamentary bequeathal of the suit
schedule property to his daughter, Vanitha has fabricated and
created a false gift deed dated 22.08.2007, gifting the suit
schedule property in favour of his wife, 1 st defendant and getting
the same and its subsequent schedule property rectification
deed dated 06.10.2007. In this manner, the plaintiff has become
the absolute owner of the suit schedule property which is a part
of entire property earlier belonging to the 1 st defendant's father
in law, late Mayandi and the 1 st defendant has no manner of
right, title or interest in the suit schedule property and the gift
deed dated 22.08.2007 and its rectification deed dated
06.10.2007 are null and void in view of the testamentary
bequeathal by the plaintiff's father in law, late Mayandi in his
Will dated 12.04.1996.
8. It is further submitted that, the 1 st defendant has filed a
suit for bare injunction to refrain the plaintiff from interfering
with the suit schedule property in O.S.No.2474/2011 on the file
of Hon'ble City Civil Judge, Bengaluru and the plaintiff on being
served with the summons and notice of the said suit has filed his
detailed written statement and objections to the application for
temporary injunction and the same is pending adjudication.
Since the 1st defendant is not enjoying any interim order of
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temporary injunction against the plaintiff has resorted to
troubling the plaintiff by getting the plaintiff unlawfully detained
in the police station on 14.07.2011 and trying to force the
plaintiff into signing a document denouncing his ownership over
the suit schedule property. The suit is one for the relief of
declaration of title, consequential possession and consequential
injunction against the defendants and Court fee is paid on the
plaint under section 24(a) of KCF & SV Act. The cause of action
for the suit arose on 14.07.2011 when the defendants have
made an attempt to get some documents forcibly signed in the
police station against the wishes of the plaintiff and on
16.07.2011 when the defendants have threatened to lease out
the schedule property. Hence, this suit.
9. After receipt of the suit summons, the defendants
appeared through their counsel. The defendant No.3 filed
written statement contending that, the suit is not maintainable
either in law or on facts. It is further contended that, no suit
shall be instituted against the Corporation or any municipal
authority, Corporation Officer or servant or any person acting
under the direction of the same, in respect of any act done in
pursuance or in execution, or any rule, bye law, regulation or
order made under it or in respect of any alleged or neglect or
default in the execution of the Karnataka Municipal Corporation
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Act or any rule, bye law, regulation or under made under it until
the expiration of (60 days) after a notice has been delivered or
left at the Corporation office or at the place of abode of such
officer, servant or person stating the cause of action the relief
sought, and the name and place of abode of the intending
plaintiff and the plaint shall contain a statement then such
notice has been so delivered or left. In the case on hand the
notice has been served on the defendant. The real dispute with
regard to the suit schedule property is between the plaintiff and
the defendants No.1 and 2. The suit filed is for declaration,
possession and injunction in respect of the suit schedule
property. In case the plaintiff succeeds in the suit, then only the
plaintiff is entitled to the relief sought against the 3 rd defendant.
There is a dispute with regard to title of the suit schedule
property. There are rival claims between the plaintiff and the
defendants No.1 and 2. It is open to the plaintiff to seek review
of entry on basis of out come of the result of the suit. As such
the suit against the 3rd defendant is not maintainable.
10. It is further submitted that, originally the BDA has
executed a lease cum sale agreement on 19.08.1968 in favour of
Mayandhi in respect of the site property bearing site No.769,
Rajajinagar Extension, measuring East to West 30 feet and North
to South 38 feet + 40 feet. The said Mayandi was put in
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possession of the property 19.08.1968, ever since enjoyed the
property as owner thereof. On payment of the entire value of
the site, BDA executed the sale deed dated 06.09.1996, in favour
of said Mayandi. The said Mayandi built a building on the said
site. The said property was assigned Municipal No.769/13,
Dr.Rajkumar Road, Rajajinagar, Bengaluru Division No.14. The
said Mayandi bequeathed the said property in favour of his
children Kothandaram and Vanitha in the Will as 'B' schedule
property and 'C' schedule property respectively. The entire
property is described as 'A' schedule property. The said Mayandi
expired on 15.09.1998. The said Kothandarama executed a gift
deed dated 06.10.2007 in favour of his wife Vijaya in respect of
'B' schedule property of the said Will. The case of the plaintiff is
that he is the absolute owner of the suit schedule property by
virtue of the sale deed dated 25.06.2001 executed by Vanitha,
sister of the defendant No.2. The contention of the plaintiff is
that the said Mayandi has sold a portion of the property bearing
NO.769/13 before Testamentary Will could take effect in his
favour and the plaintiff is the owner of the same by virtue of the
sale deed dated 11.10.1996. At present as per the records
maintained, the khatha of the suit schedule property is in the
name of Vijaya. The PID number allotted to the said property is
22-34-13. The plaintiff made an application for change of khatha
on 11.02.2009, for which Vijaya has filed objections 28.03.2009.
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Consequent to it, the 3rd defendant issued endorsement dated
01.04.2009. There is no cause of action as against the 3 rd
defendant. Hence this suit of the plaintiff deserves to be
dismissed.
11. In support of the case of plaintiff in both the case, the
plaintiff (K.Subramani) has got examined himself as P.W.1 got
documents marked at Ex.P.1 to Ex.P.17. On the other hand, the
defendant (Vijaya) got examined herself as D.W.1 got documents
marked at Ex.D.1 to Ex.D.4.
12. Heard the arguments.
13. On the above pleading of the parties, my predecessor in
office has framed the following Issues:
1. Whether plaintiff proves that he has title to the
schedule property?
2. Does he prove that gift deed dated 22.08.2007
executed by 2nd defendant in favour of 1 st defendant
is null and void?
3. Does he prove that khatha in respect of schedule
property transferred by 3rd defendant in favour of 1st
defendant is null and void and not binding on him?
4. Does he entitle for the relief of declaration,
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possession as prayed for?
5. Whether the 3rd defendant proves that suit filed by
the plaintiff without prior issue of notice is not
maintainable?
6. Does he prove that Mayandi was put in possession
of the property on 19.08.1968 and BDA executed
sale deed in his favour on 06.09.1996?
7. What order and decree?
14. After hearing arguments and considering the oral and
documentary evidence on record, my findings on the above
issues are here under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : As per final order
for the following:
REASONS
15. ISSUE NO.1 AND 2 IN O.S.No.2474/2011 AND ISSUE
NO.1 TO 6 IN O.S.No.913/2012 : These issues are taken
together for discussion, since they are interconnected with each
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other and so also they require common discussion.
16. I am of the opinion that, I need not repeat the contention
raised by the plaintiff here also, since I have already narrated the
inception of this judgment.
17. Again I repeat, to substantiate their contentions the
plaintiff has adduced evidence.
18. The plaintiff Vijaya.K filed suit against the defendant
Subramani vide O.S.No.2474/2011 and prayed for the order of
permanent injunction as against the defendant restraining from
interfering with the plaint schedule property.
19. Subramani filed suit as against Vijaya, Kodandaram and
Commissioner of BBMP, Bengaluru as per O.S.No.913/2012
seeking declaration, possession and their consequential reliefs
as against defendants. The defendant No.3 the Commissioner of
BBMP was deleted as per the order of this Court dated
07.08.2014.
20. On 25.02.2015 the plaintiff Vijaya's counsel in
O.S.No.2474/2011 filed application to club O.S.No.913/2012 in
this suit for record of common evidence for the purpose of
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recording common findings on merits and it was allowed and
directed the office to discontinue order sheet in
O.S.No.913/2012 and continue common order sheet in
O.S.No.2474/2011 to avoid misplacing of records or
inconvenience. On the day of order in O.S.No.913/2012 plaintiff
Subramani was already examined as P.W.1 and Ex.P.1 to Ex.P.11
were marked, hence it was continued with same rank and
plaintiffs in O.S.No.2474/2011 Vijaya are continued as
defendants for the purpose of recording common evidence and
Issue No.5 was deleted on 28.07.2021. It is pertinent to note
that, two documents were marked as Ex.P.11 due to oversight.
To overcome that difficulty in identification of the same, Ex.P.11
office note of BBMP (ನನ ಬಬಗಳರ ಮಹನಗರ ಪಲಯವರ
ಆಸಸ ಸಖಖ ನ.769/13 ಕಕ ಸಬಧಸ ಖತವನನ
ಕಕದಡರಮನ ಹಸರಗ ಬದಲಯಸವತ ಕಕರದ
ಮಡನಯ ದಢಕಕತ ಪಪ ತಯನನ ನ.ಪ.11 ಎಬದ
ಗರತಸಲಯತ.) is noted as Ex.P.11(a).
21. The plaintiff Vijaya's counsel (O.S.No.2474/2011)
vehemently argued that K.Subramani is a third party and he
cannot ask gift deed as null and void and the plaintiff Vijaya has
not executed any sale deed, but instead of that, Subramani
(O.s.No.913/2012) could have asked cancellation of gift deed and
the plaintiff counsel (O.S.No.2474/2011) further submitted that,
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Vijaya is in lawful possession and Subramani in O.S.No.913/2012
could have prayed for vacate and hand over the possession.
22. The plaintiff Vijaya's counsel (in O.S.No.2474/2011) further
submitted that, P.W.1 Subramani has admitted that Vijaya is in
lawful possession and he prays to declare khatha as null and
void but deleted BBMP as party from the case. The counsel
further submitted that, after execution of 'Will' the sale deed
was executed and 'Will' does not stand and gift deed of
Subramani was executed on 22.08.2007 and after that Vanitha
sold the property to Subramani but Vanitha has not made as
party nor as witness. After execution of the 'Will' the Testator
has sold half property and Subramani not told when he got the
portion of the property and further submitted that, Subramani
in evidence deposed that, he does not know for what reason he
has filed the suit and Vanitha got power upon the 'Will' and she
cannot sell the property upon the 'Will' and this fact not
mentioned in the sale deed and Vanitha got power upon the will
and she cannot sell the property upon the Will and he had not
inquired the register about khatha and he had knowledge from
2000 and they have not made probate upon the Will.
23. The plaintiff Subramni in O.S.No.913/2012 and defendant
in O.S.No.2474/2011 submitted that, Vijaya sought for bare
23
O.S.No.2474/2011
C/W
O.S.No.913/2012
injunction in O.S.No.2474/2011. The plaintiff counsel in
O.S.No.913/2012 submitted that, Mayandi is the father in law of
plaintiff Vijaya (O.S.No.2474/2011) and father of Kodandarama
was the original owner of the plaint schedule and other portions
of the property and he bequeathed his property through Will
dated 12.04.1996 and he bifurcated the property in which
southern portion of the property was bequeathed to
Kodandarama and northern portion was bequeathed to Vinutha
who is the daughter of Mayandi and sister of Kodandarama.
24. The plaintiff Subramani counsel further submitted that,
prior to the testamentary Will taking place during the life time of
Mayandi had effectuated the sale deed of the southern portion
which was designated for 2nd defendant Kodandaram (husband
of Vijaya) (O.S.No.913/2012) in the Will to the plaintiff Subramani
through a registered sale deed dated 11.10.1996 and
Kodandaram has signed to the same as consenting to it.
Subsequent to the execution of the sale deed Sri.Mayandi
demised on 15.09.1998 and as per Will northern portion of
properties devolved to Vanitha (sister of Kodandarama)
precluded to execute a registered sale deed on 25.06.2001
whereby she diverted herself of a portion of her entitlement,
specifically the area measuring East to West 15 feet and North to
South 15 feet total 225 sq. feet and like wise Vanitha having
24
O.S.No.2474/2011
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O.S.No.913/2012
inherited the remaining expanse measuring East to West 25 feet
and North to South 15 feet, amounting to 375 sq. feet., pursuant
to the provisions of the Will vended this portion to the plaintiff
through a registered sale deed dated 02.11.2007. The plaintiff
Subramani acquired legal ownership of the entire property in
CITB No.769 through three lously registered documents: a sale
deed dated 11.10.1996, another sale deed dated 25.06.2001 and
preceding the execution of the sale deed dated 02.11.2007 and
he diligently pursued the Mahanagara Palike and effectively
manage the transfer of khatha into his name pertaining to the
first two sale deeds. However, prior to the plaintiff's Subramani
execution of the third sale deed dated 02.11.2007, the 2 nd
defendant Kodandaram herein, who is the son of Mayandi and
the sibling of Vanitha purportedly and without legal basis,
executed a gift deed dated 22.08.2007, purportedly transferring
ownership to his wife K.Vijaya. The plaintiff Subramani contends
that the 2nd defendant Kodandaram possesses no rightful claim,
title or interest in CITB No.769 New Municipal No.769/13,
particularly with regard to the portion encompassed within the
sale deed dated 02.11.2007, which was validly made and
executed by the actual owner, Vanitha, in favour of the plaintiff
Subramani.
25. In this case, the 'Will' was marked as Ex.D.1. While
25
O.S.No.2474/2011
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O.S.No.913/2012
perusing the same, it was bequeathed by Mayandi on
10.03.1997 and in the 'Will' he bequeathed the properties as
follows :
"ಎ ಷಡಖ ಲವವರ
ಕಕದಡರಮ ಮತಸ ಮಕಕ ಳಗ ಸರರವ
ಸಸ ತಸ ನ ವವರ
ಬಬಗಳರ ಮಹನಗರ ಪಲಕ,
ಕರರರಷನ ಡವಜನ 14, ರಜಜನಗರ,
ಹ 6 ನ ಬಬ ಕ 80 ಅಡ ರಸಸ , ಡ ರಜ ಕಮರ
ರಸಸ , ಮನನ ಪಲನಬರ 769 13 ರಲಬ ವಸಸ ಕರರ
ಪವರ ಪಶಶ ಮ 25-0 ಅಡಗಳ ಮತಸ ಉತರ
ದಕಕ ರ 15-0 ಅಡಗಳಳಳ ಸಸ ತಸ ಗ ಚಕಕ ಬದ
ಪವರಕಕ ವನತ
ಪಶಶ ಮಕಕ ರಸಸ
ಉತಸ ರಕಕ ಶಪ ಕಧರ
ದಕಕ ರಕಕ ಸಬಪ ಮಣ
ಈ ಮದಖ ಇರವ ಸಸ ತಸ ಮಲಕ ಬಡ ಎ ಷಸಡಖ ಲ
ದರರ ಭಗಕಕ ಸರರತಸ ದ.
ಬ ಷಡಖ ಲವವರ
ಶಪ ಕಮತ ವನತರವರ ಭಗಕಕ ಸರರವ
ಸಸ ತಸ ನ ವವರ
ಬಬಗಳರ ಮಹನಗರ ಪಲಕ,
ಕರರರಷನ ಡವಜನ, 14 ನದದ
ರಜಜನಗರ, 6 ನ ಬಬ ಕ, 80 ಅಡ ರಸಸ ಡ ರಜ
26
O.S.No.2474/2011
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O.S.No.913/2012
ಕಮರ ರಸಸ ಇಲಬ ರವ ಪವರ ಪಶಶ ಮ 15-0
ಅಡಗಳ ಮತಸ ಉತಸ ರ ದಕಕ ರ 15-0 ಅಡಗಳಳಳ
ಸಸ ತಸ ಗ ಚಕಕ ಬದ
ಪವರಕಕ ಕಕದಡರಮ
ಪಶಶ ಮಕಕ ಮಯರಣ
ಉತಸ ರಕಕ ಶಪ ಕಧರ
ದಕಕ ರಕಕ ಸಬಪ ಮಣ
ಈ ಮದಖ ಇರವ ಸಸ ತಸ ಈ ಮಲಕ ಬಡ
ಬ.ಷಡಖ ಲದ ರರಗ ಸರರತಸ ದ. ಅಬತ ಈ
ಮಲಕ ಬಡ ಸಸ ತಸ ಗಳ ಸದರ ವಲ ಯ ಮರರ
ಶಸನ ಪತಪ ಕಕ ಒಳಪಟಟ ದದ ಇದ ನನನ ಕಲ
ನತರವ ಜರಗ ಬರತಕಕ ದದ ಗರತಸ ದ."
Thus, in the Will it is specifically stated that, he has
cancelled the Will dated 12.04.1996.
26. Ex.P.1 is the sale deed which was executed on 06.11.1996
by Bengaluru Development Authority, Bengaluru in favour of
Mayandi pertaining to site No.769, Block No.VI in Rajajinagar
Extension measuring East to West 30 feet and North to South 38
+ 40 / 2 feet. Thus, it is clear that Mayandi is the absolute owner
of the above property.
While perusing Ex.P.3 which is the Will bequeathed by
27
O.S.No.2474/2011
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O.S.No.913/2012
Mayandi on 12.04.1996 and he bequeathed his property to his
two children Kodandaram and Vanitha.
Para 12 of Ex.P.3 reads as follows :
"12. That I hereby bequeath the
southern portion of the 'A' schedule property
in favour of my first son
Mr.M.Kodhandararaman which is morefully
described in the 'B' schedule hereunder and
the northern portion of 'A' schedule property
in favour of my daughter Smt.P.Vanitha,
which is morefully described in the 'C'
schedule hereunder and my beneficiaries
shall use and enjoy their respective shares
allotted under this Will absolutely and shall
be entitled to all profits, rents, benefits
accrued thereof and that my beneficiaries
shall be at liberty to deal with their
respective shares in any manner they may
choose, as and when their respective shares
devolves upon them."
27. In this a 'Will' Mayandi bifurcated his property between his
two children. But it is pertinent to note that, there are two Wills
executed by Mayandi one is Ex.P.3 which is the first Will which
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O.S.No.2474/2011
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O.S.No.913/2012
was executed on 12.04.1996 and Ex.D.1 the second Will was
executed on 10.03.1997 and Mayandi was died on 15.09.1998 as
per Ex.P.12 death certificate. In the 2nd Will he clearly stated
that, 1st Will is cancelled. But these two Wills to be proved by
both the parties as per provisions laid down in Indian Evidence
Act and Indian Succession Act.
28. While perusing Ex.P.4 which is the sale deed executed on
11.10.1996 executed by Mayandi in favour of Subramani
(plaintiff in O.S.No.913/2012) pertaining to the schedule
residential moveable property being the southern portion of
Municipal No.769/2013 situated in Dr.Rajkumar Road,
Rajajinagar, Bengaluru together with structure thereon of 2
squares of RCC roofing brick wall with cement, jungle wood
doors and windows redoxide flooring with separate water and
common electricity and sanitary connection including all rights.
It is pertinent to note that, during the life time of Mayandi this
sale deed Ex.P.4 was executed and it is well settled law that Will
only comes to effect only after the death of the testator
Mayandi. Thus, this sale deed becomes valid and K.Subramani
became the absolute owner of that property mentioned in
schedule of Ex.P.4. It is pertinent to note that, Vanitha was also
signed as a witness to this sale deed.
29
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O.S.No.913/2012
29. While perusing Ex.P.5 which is the absolute sale deed
executed on 25.06.2001 executed by Vanitha in favour of
Subramani pertaining to eastern portion of residential
immovable property bearing corporation NO.769/2013(formerly
being the northern portion of old site No.769 assigned
Corporation No.769/13) situated in 80 feet road, 5 th cross, VI
Block, Rajajinagar, Bengaluru together with the building thereon
comprising of one square of ACC sheet roofing, brick wall with
cement mortar, jungle wood doors and windows, redoxide
flooring and East to West 15 feet and North to South 15 feet total
225 sq. feet. This property is sold to Subramani.
30. It is pertinent to note that, both the parties in both the
cases they are depending their case upon their own will.
O.S.No.913/2012 plaintiff K.Subramani depended his case upon
'Will' i.e., Ex.P.3 dated 12.04.1996. In O.S.No.2474/2011 the
plaintiff Vijaya depended her case upon 'Will' i.e., Ex.D.1 which
was executed on 10.03.1997. It is pertinent to note that, these
Ex.P.3 and Ex.D.1 Wills are marked through the beneficiaries and
both parties have not examined any witness or scribe of these
Will's. It is pertinent to note that, there is a settled law stating
that, Will to be proved through witness as per section 68 of
Indian Evidence Act or else he has to prove under section 68, 69,
70, 71 of Indian Evidence Act and also as per section 63 of Indian
30
O.S.No.2474/2011
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O.S.No.913/2012
Succession Act. But here in this case both the parties not proved
the Will i.e., Ex.P.3 and Ex.D.1. Even though the parties agree the
Will then also they have to prove the Will as per the provisions
laid down in the law through witnesses or as per provisions laid
down in above mentioned law.
I rely upon a citation that was rendered in J.T.Soorappa
and another - Vs -Sri.Sachidanandenadra Saraswathi Swamiji
Public Charitable Trust and others, ILR 2008 Karnataka page
2115, wherein it has been held that,
"(A) INDIAN SUCCESSION ACT, 1925 -
SECTION 2(h) - Will - Proof of - Legal
requirements - Duty of the Court - Five steps
to be considered - HELD, Under the Act, the
Will to be valid, should be reduced into
writing, signed by the testator and shall be
attested by two or more witnesses and
atleast one attesting witnesses shall be
examined. If these legal requirements are
not found, in the eye of law there is no Will at
all. Therefore, the first step is that if the
documents produced before the Court
primafacie do not satisfy these legal
requirements, the Court need not make any
31
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O.S.No.913/2012
further enquiry, in so far as its due execution
is concerned and can negative a claim based
on the said document - FURTHER HELD, The
second step is that when the legal heirs are
disinherited, the Court has to scrutinize the
evidence with greater degree of care than
usual - The third step would be to find out
whether the testator was in a sound state of
mind at the terms of executing the Will - The
fourth step would be to find out whether
there exists any suspicious circumstances
surrounding the execution of the Will - The
fifth step is to consider whether the Will that
is executing is in accordance with Section 63
of the Act read with section 68 of the
Evidence Act.
(B) INDIAN SUCCESSION ACT, 1925 -
SECTION 63 R/W SECTION 68 - Execution of a
Will under - Attestation and Execution -
Procedure - HELD, The Will that is executed in
accordance with section 63 of the Act read
with section 68 of the Evidence Act. The Will
is a document required by law to be attested.
The execution of Will must include both
32
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O.S.No.913/2012
execution and attestation . "Attestation" and
"execution" are different acts, one following
the other. There can be no valid execution
without due attestation, and if due
attestation is not proved, the fact of
execution is of no avail - The Court has to
find out whether the Will bears the signature
of the testator and the said signature is
placed at the place with the intention of
giving effect to the Will. Further the said Will
has been attested by two witnesses and
whether the witnesses have seen the testator
affixing his signature to the Will in their
presence and if not atleast they receive from
the testator a personal acknowledgement of
the signature or mark and each of them shall
sign the Will as attesting witness in the
presence of the testator though is shall not
be necessary that both of them should be
present at the same time - FURTHER HELD,
Section 68 of the Evidence Act deals with
proof of execution of documents required by
law to be attested. A Will is a document
which requires to be attested under section
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O.S.No.2474/2011
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O.S.No.913/2012
63(c) of the Act. Therefore, the said
document shall not be used as evidence until
at least one attesting witness has been called
for the purpose of proving its execution, if
there be an attesting witness alive and
subject to the process of the Court and
capable of giving evidence. Whether such a
Will is registered or not registered, in the eye
of law it makes no difference. Even if the said
Will is registered under the provisions of the
Indian Registration Act, 1908 whether the
execution of the Will is admitted or denied, it
is necessary to call an attesting witness in
proof of the execution of the said Will. Under
no circumstances the proof of execution of
the Will is dispensed with in law - It is only
after the Court is satisfied that all these tests
are successfully passed, the Court can declare
that Will is executed in accordance with law,
as such it is valid and enforceable.
(C) INDIAN SUCCESSION ACT, 1925 -
SECTION 63 Execution of unprivileged Wills -
Three rules to be the complied with - HELD,
The first Rule is the said Will should be signed
34
O.S.No.2474/2011
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O.S.No.913/2012
by the testator. If he is incapable of signing,
his mark is to be affixed. If some other
person is signing the Will, the other person
shall affix his signature in the presence that
the Will should contain the signature or mark
to authenticate the same, without which it
cannot be said to be the Will of the testator -
The second rule is the signature or the mark
shall be so placed on the Will, that it shall
appear that it was intended thereby to give
effect to the writing as a Will - The signature
of the testator may be found on all pages at
the end also. According to sub-section (b)
the signature need not necessarily be at the
end of the Will. It does not matter in which
part of the Will the testator signs. If a Will is
written on several sheets of paper, with all
sheets severally signed, one signature on the
last sheet made with the intention of
executing the whole is sufficient - Mere
signature found on the Will at some place is
not sufficient. If the signature is found at
some place of the page and it does not appear
that such a signature was put with any such
35
O.S.No.2474/2011
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O.S.No.913/2012
intention or giving effect to the Will, then the
signature or mark has no value. The test is
whether the said signature found on the Will,
conveys the intention of the testator to give
effect to the writing as a Will - The third rule
is the Will requires the persons, who have
affixed their signature as attesting witness,
saw the executant, (in the case of a Will a
testator), attesting witness should sign the
Will in the presence of the testator, but they
should also see with their eyes the testator
signing the instrument or if they are not
present at the time of signing the instrument,
the testator should acknowledge to them his
signature or mark to the said instrument.
(D) INDIAN SUCCESSION 1925 - CLAUSE (C)
OF SECTION 63 - Requirement of due
attestation to prove the Will - HLED, to prove
due attestation under section 63(c) it is open
to the propounder of the Will to examine a
person who was present at the time of
attestation, who saw the testator
acknowledging to such attesting witness who
was not present at the time of the testator
36
O.S.No.2474/2011
C/W
O.S.No.913/2012
affixing his signature to the Will,
acknowledging his signature or mark and
then the attesting witness signing the Will in
the presence of the testator. That would
meet the requirement of clause (c) of Section
63. If an attesting witness is not present
when the testator affixed his signature and if
the testator does not acknowledge his
signature to the said attesting witness,
before the attesting witness affixes his
signature to the Will, then this requirement
of law is not fulfilled and the Will is not
proved. In those circumstances, if the other
attesting witness is not examined or other
evidence is not adduced regarding due
attestation, the requirement of Section 63(c)
is not complied with, Will is not proved - ON
FACTS, HELD, Evidence on record clearly
discloses that testator was not in a sound
state of mind at the time when the Will come
into existence and it has come into existence
under suspicious circumstances - The
propounder of the Will has failed to remove
the suspicious circumstances - Petitioners
37
O.S.No.2474/2011
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O.S.No.913/2012
are not entitled to the letters of
administration sought for."
I rely upon a judgment rendered by the Hon'ble Apex
Court in Civil Appeal No.9683/2019 in Rajkumari and others - Vs-
Sureendarpal Sharma, at para No.22 it is observed as :
"The expression 'attesting witness'
within the meaning of Section 3 of the
Transfer of Property At and Section 63 of the
Indian Succession Act means 'bearing witness
to a fact'. The two valid conditions of
attestation of documents are - (i) two or more
attesting witnesses have seen the executant
signature the instrument; (ii) each of them
has signed the instrument in the presence of
the executant. Further and importantly,
attestation requires animus attestandi, that
is, a person puts his signature on a document
with the intent to attest it as a witness. If a
person puts his signature on a document only
in discharge of a statutory duty, he may not
be considered as an attesting witness as was
held in Dharam Singh - Vs - Aso and Another.
Similarly, a scribe or an advocate who has
38
O.S.No.2474/2011
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O.S.No.913/2012
drafted the document may not be the
attesting witness as was held by the Court in
Jagdish Chand Sharma (supra), for attestation
requires that the witness should have put his
signature animus attestandi that is, for the
purpose of attesting that he has seen the
executant sign or has received from him a
personal acknowledgement of his signature."
Thus as per above dictum case "Will" to be proved through
witnesses. Here no such attempt is made by both the parties.
Here both are relying upon their own "Will" but not proceeded to
prove the same.
This Court opines it is better to glance at provisions of
Section 68 of Indian Evidence Act and Section 63 of Indian
Succession Act.
While perusing section 68 of Indian Evidence Act it reads
as follows :
Section 68 in The Indian Evidence Act,
1872
68. Proof of execution of document
required by law to be attested.
39
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O.S.No.913/2012
If a document is required by law to be
attested, it shall not be used as evidence until
one attesting witness at least has been called
for the purpose of proving its execution, if
there be an attesting witness alive, and
subject to the process of the Court and
capable of giving evidence :
[Provided that it shall not be necessary
to call an attesting witness in proof of the
execution of any document, not being a Will,
which has been registered in accordance with
the provisions of the Indian Registration Act,
1908 (XVI of 1908), unless its execution by the
person by whom it purports to have been
executed is specifically denied.]"
While perusing section 63 of Indian Succession Act, it
reads as follows :
"Section 63. Execution of
unprivileged wills.
Every testator, not being a soldier
employed in an expedition or engaged in
actual warfare, [or an airman so employed or
engaged,] or a mariner at sea, shall execute
40
O.S.No.2474/2011
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O.S.No.913/2012
his will according to the following rules:--
(a) The testator shall sign or shall affix
his mark to the will, or it shall be signed by
some other person in his presence and by his
direction.
(b) The signature or mark of the
testator, or the signature of the person
signing for him, shall be so placed that it shall
appear that it was intended thereby to give
effect to the writing as a will.
(c) The will shall be attested by two or
more witnesses, each of whom has seen the
testator sign or affix his mark to the will or
has seen some other person sign the will, in
the presence and by the direction of the
testator, or has received from the testator a
personal acknowledgment of his signature or
mark, or of the signature of such other
person; and each of the witnesses shall sign
the will in the presence of the testator, but it
shall not be necessary that more than one
witness be present at the same time, and no
particular form of attestation shall be
necessary."
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31. As per the above provisions the 'Will' should be proved
through any one of the witnesses. Here both the parties even
tried to prove neither Ex.P.3 nor Ex.D.1 'Will' of Mayandi. When
'Will' are not proved then all the children of Mayandi are entitled
for the equal shares which was left behind him after his death.
Even though any documents were executed on the basis of Will
are not sustainable without proving the Will. All the documents
executed after the death of the Mayandi on the basis of Ex.P.3 or
Ex.D.1 are do not have any value in the eye of law.
I rely upon a citation that was rendered in Ramesh Varma
- Vs - Lajesh Saxena, 2017 (1) SCC page 257, wherein it has been
held that,
"13. A Will like any other document is to
be proved in terms of the provisions of
Section 68 of the Indian Succession Act and
the Evidence Act. The propounder of the Will
is called upon to show by satisfactory
evidence that the Will was signed by the
testator, that the testator at the relevant
time was in a sound and disposing state of
mind, that he understood the nature and
effect of the disposition and put his signature
to the document on his own free will and the
42
O.S.No.2474/2011
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O.S.No.913/2012
document shall not be used as evidence until
one attesting witness at least has been called
for the purpose of proving its execution. This
is the mandate of Section 68 of the Evidence
Act and the position remains the same even
in a case where the opposite party does not
specifically deny the execution of the
document in the written statement.
14. In Savithri v. Karthyayani Amma
reported as (2007) 11 SCC 621 at page 629, this
Court has held as under:-
"A Will like any other document is to be
proved in terms of the provisions of the
Succession Act and the Evidence Act. The
onus of proving the Will is on the propounder.
The testamentary capacity of the testator
must also be established. Execution of the
Will by the testator has to be proved. At least
one attesting witness is required to be
examined for the purpose of proving the
execution of the Will. It is required to be
shown that the Will has been signed by the
testator with his free will and that at the
relevant time he was in sound disposing state
43
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O.S.No.913/2012
of mind and understood the nature and effect
of the disposition. It is also required to be
established that he has signed the Will in the
presence of two witnesses who attested his
signature in his presence or in the presence
of each other. Only when there exists
suspicious circumstances, the onus would be
on the propounder to explain them to the
satisfaction of the Court before it can be
accepted as genuine."
32. As per the above dictum laid down in the above citations,
the Will cannot be marked even through the executors. But it
should be marked and proved through witness only. Here in this
case both are not specifically denied the "Will" at still they have
to prove the "Will" as it is mandatory to prove so. Neither parties
tried to olige the provision.
33. It is pertinent to note that, as per Ex.P.1 Mr.Mayandi is the
absolute owner of site No.769, Block No.VI, Rajajinagar
Extension, measuring East - West 30 feet and North - South 38
feet 40 / 2 feet together with all rights and on 11.10.1996 the
said Mayandi had executed absolute sale deed in favour of
Subramani as per Ex.P.4 pertaining to the residential immovable
44
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O.S.No.913/2012
property the southern portion of Municipal No.769/13 situated
in Dr.Rajkumar Road, (formerly 5 th cross, 6th Block) Rajajinagar,
Bengaluru together with structures there were 2 squares of RCC
roofing brick wall with cement, jungle wood doors and windows,
redoxide flooring with separate water connection and it comes
East - West 38 feet and North - South 15 feet total area 570 sq.
feet. This document is executed when Mayandi was alive. It
means after the death of Mayandi the children of Mayandi are
entitled for the equal shares as successors to the left out
properties only as the property is self acquired property of
Mayandi.
34. Ex.P.5 which is the absolute sale deed executed by
P.Vanitha and K.Subramani on the basis of Will dated 12.04.1996
i.e., Ex.P.3 will not stand as the parties not proved the Will Ex.D.1,
but to this sale deed Vijaya the plaintiff in O.S.No.2474/2011 was
signed as witness and to Ex.P.6 which is the absolute sale deed
executed on 02.11.2007 by Vanitha in favour of Subramani on
the basis of the 'Will' i.e., Ex.P.3 will not stands as Subramani not
proved the Ex.P.3 'Will'. When both the parties not proved their
own Will Ex.P.3 and Ex.D.1 under the Will, if they have executed
any document then these documents do not have value under
law.
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It is pertinent to note that, both the parties not obtained
probate upon the Will Ex.P.3 and Ex.D.1. I rely upon a judgment
that was rendered by Hon'ble High Court of Patna reported in
Mosmat Susheela Devi - Vs - Chandra Bhushan Choudary
reported in AIR Online 2019 Pat page 1777 wherein it has been
held that,
"Succession Act (39 of 1925), S.213 -
Right of executor or legatee - Suit for
declaration of sale deed to be void - Based on
Will which was not probated by competent
Court - Will required to be probated by
competent Court for getting rights of
executor or legatee - Plaintiff can exercise his
rights after Will is probated."
As per the above dictum the Will should be probated by
the competent Court. Here Will Ex.P.3 and Ex.D.1 was not
probated nor proved through witness.
I also rely on citation rendered in Delhi High Court by
Hemant Verma - Vs - Mithilesh Rani reported in AIR Online 2021
Delhi page 463, wherein it has been held that,
"(E) Specific Relief Act (47 of 1963), S.34
- Transfer of Property Act (4 of 1882), S.122 -
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Suit for declaration - Plaintiff claiming
declaration of title on basis of registered Will
and testament by owner in favour of plaintiff
in respect of the suit property - Said Will not
been probated till date and no petition for
seeking probate of said Will filed by plaintiff
- In absence of any probae, plaintiff cannot
claim Will to be valid - Declaratory reliefs
based on such Will, not maintainable."
The ratio laid down in the above dictum is also applicable
to the case in hand, 'Will' not been 'probated' till date and no
petition was filed seeking probate upon the 'Will' Ex.P.3 and
Ex.D.1. Hence, both the parties cannot claim Will to be valid.
It is pertinent to note that, the counsel for Subramani in
O.S.No.913/2012 in the cross-examination of Vijaya D.W.1 at
page No.11, line No.14 deposed as :
"ನನ ವಸವಗರವತಹ ಸಸ ತಸ
ವನತರವರ ವದಯವರಗ ಕಪ ಯ ಪತಪ ವನನ
ಮಡಕಟಟ ಬತಹ ಸಸ ತಸ ಎಬದರ ಸರಯಲಬ ."
It is specifically suggested that, Vijaya was residing in the
property which was sold by Vanitha in favour of Subramani.
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Thus, it clearly shows that, Vijaya is in possession and enjoyment
of the property. In the cross-examination of Subramani in
O.S.No.913/2012 is specifically stated in page No.11, line No.4
deposed that,
"ಈ ದವಯನನ ಯವ ಕರರಕಕ ಗ
ಹಕದದ ಕರ ಎಬಬ ಪಪ ಶನ ಗ ಸಕಕ ಯ ಮನ ಖಲ
ಮಡಸಬಕ ಅಬತ ಮತಸ ಗಫಟ ಸಲ ಡಕಡ
ಕಖ ನನ ಲ ಮಡಬಕ ಅಬತ ಹಕದದ ಕನ ಎಬದ
ನಡಯತಸ ರ."
He had filed the suit to vacate Vijaya from the plaint
schedule property.
P.W.1 Subramani in OS.No.913/2012 further deposed in
page NO.12, line No.3 as :
"ನ.ಪ.6 ರ ದನ ಸದರ ಸಸ ತಸ ನನ ನನನ
ಸಸ ಧಕನಕಕ ಕಡಲಲಬ ಸಕಕ ಯ ಮಬದವರದ
ಖಲ ಮಡಕಡತಸ ಕವ ಅಬತ ಹಳದದ ರ.
ನ.ಪ.6 ರಲಬ ಸಸ ತಸ ನನ ಅವತಸ ಕ ಖಲ ಮಡ ನನನ
ಸಸ ಧಕನಕಕ ಕಟಟ ದದ ಕನ ಅಬತ ಬರದದದ ರ ಎಬಬ
ಪಪ ಶನ ಗ ಸಕಕ ಯ ಖಲ ಮಡಕಡತಸ ಕನ ಅಬತ
ಹಳದರ ಎಬದ ನಡಯತಸ ರ."
Thus it is pertinent to note that, Vijaya P.W.1 still in
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possession and enjoyment of the property.
P.W.1 Subramani also further deposed that, in page No.12,
line No.14 as follows :
"ದ.25.08.1999 ರಲಬ ಯ ದವ ಸಸ ತಸ ನ ಖತ
ಕಕದಡರಮರವರ ಹಸರನಲಬ ಆಗತಸ
ಎಬಬದ ನನಗ ಗತಸ ಲಬ . 2000 ರಬದ ಈವರಗ
ಕಕದಡರಮರವರ ದವಸಸ ತಸ ಗ ಟಖ ಕ ನ
ಕಟಟ ತಸ ಬದದದ ರ ಎಬಬ ಪಪ ಶನ ಗ ಸಕಕ ಯ
ಟಖ ಕ ನ ಕಟಟ ತಸ ಬದದದ ರ ಮತಸ ನವ ಟಖ
ಕ ನ ಕಟಟ ಲ ಹಕದಗ ಆಕಕ ಕಪಸದರ ಎಬದ
ನಡಯತಸ ರ. "
It means since from 1999 Kodandarama who is the
husband of Vijaya D.W.1 was paying the tax till today. It means
D.W.1 Vijaya is in possession and enjoyment of the property.
P.W.1 Subramani in the cross-examination deposed in page
No.14, line No.8 as follows :
"ನ.ಪ.5 ಮತಸ 6 ಪಡಯವ ಮನನ ನನ
ಕಕದಡರಮರವರನನ ಕಳಲಲಬ . ಅವರ
ಪಕಕ ದಲಬ ಕ ಇರವದರಬದ ಅವರನನ ಕಳಲ
ನಮಗ ತಬದರ ಇತಸ ಕ ಎಬಬ ಪಪ ಶನ ಗ ಸಕಕ ಯ
ಅವರ ಬಹಳ ಜಗಳ ಮಡತಸ ದದ ರ ಮತಸ
ವನತರವರ ಖಲ ಮಡಸಕಡವದಗ
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ಹಳದರ. ವನತರವರ ತದನತರ ಖಲ
ಮಡಸಕಟಟ ಲಬ ."
35. As per the above version even though sale deed was
executed in favour of Subramani by Vanitha the possession of
the property was not given to P.W.1 Subramani and it is clear
that Vijaya and her family are residing in the plaint schedule
property and are in possession and enjoyment of the same.
36. Here Subramani in O.S.No.913/2012 has not proved his
case and also Will Ex.P.3 and Vijaya in O.S.No.2474/2011 also not
proved Will Ex.D.1 but she proved that she is in possession and
enjoyment of the plaint schedule property and to prove the
same he has given oral and documentary evidence. Hence, issue
No.1 and 2 in O.S.No.2474/2011 in the AFFIRMATIVE and issue
No.1 to 6 in O.S.No.913/2012 are answered in the NEGATIVE.
37. ISSUE NO.3 IN O.S.NO.2474/2011 AND ISSUE NO.7 : In
view of my findings to the above issues, I proceed to pass the
following :
O R D E R
O.S.No.2474/2011 The suit of the plaintiff (Smt.K.Vijaya) is hereby allowed with costs.
50O.S.No.2474/2011 C/W O.S.No.913/2012 The defendant, his agents, or anybody acting on his behalf are hereby restrained by permanent injunction from interfering with the plaint schedule property.
Draw decree accordingly. O.S.No.913/2012 The suit of the plaintiff (Sri.K.Subramani) is hereby dismissed.
Draw the decree accordingly. The original judgment shall be kept in O.S.No.2474/2011 and copy of the judgment shall be kept in O.S.No.913/2012. (Dictated to the Judgment Writer, transcript thereof is corrected and then pronounced by me in the open court on this the day of 13th day of June 2024) (MAMTAZ) IX Addl. City Civil & Sessions Judge, Bengaluru
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A N N E X U R E List of witnesses examined for plaintiff:
P.W.1 Subramani 51 O.S.No.2474/2011 C/W O.S.No.913/2012 List of documents exhibited for plaintiff:
Ex.P-1 Absolute sale deed Ex.P-2 Khatha extract Ex.P-3 Will Ex.P-4 Deed of absolute sale Ex.P-5 Deed of absolute sale Ex.P-6 Deed of absolute sale Ex.P-7 Rectification deed Ex.P-8 Khatha certificate Ex.P-9 Property tax receipt Ex.P-10 Certified copy of gift deed Ex.P-11 Certified copy of rectification of gift deed Ex.P-11(A) Office note of BBMP Ex.P-12 Certified copy of application Ex.P-13 Certified copy of affidavit Ex.P-14 Uttara pathra Ex.P-15 Certified copy of tippani Ex.P-16 Certified copy of application Ex.P-17 Uttara pathra List of witnesses examined for defendant:
D.W.1 K.Vijaya 52 O.S.No.2474/2011 C/W O.S.No.913/2012 List of documents exhibited for defendant:
Ex.D.1 Registered Will Ex.D.2 Khatha certificate Ex.D.3 Khatha extract Ex.D.4 Property tax receipt (MAMTAZ) IX Addl. City Civil & Sessions Judge, Bengaluru
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