Bangalore District Court
H.N. Geetha vs K. Bhagya on 27 April, 2019
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, (CCH-29) BENGALURU.
Title sheet for
Judgment in suits
(R.P.91)
Present: Sri. J.R.Mendonca, B.A.L., LL.B,
(Name of the Presiding Judge)
Dated: This the 27th day of April 2019
Original suit No.27388/2009
Plaintiffs:- 1. H.N. Geetha,
W/o Late Lakshminarayana,
Aged about 52 years,
R/at No.535, 4th Main Road,
West of Chord Road, II Phase,
Mahalakshmipuram,
Bangalore-560 086.
2. Late B.L. Shobha,
D/o Late Lakshminarayana,
Aged about 32 years,
(Since dead by her LR the Plaintiff
No.1)
(By Pleader : Sri. GSP Advocate)
V/s
Defendants:- 1. K. Bhagya,
W/o Late S. Varadaraju,
Aged about 50 years,
2. V. Sanjeevaraju,
S/o Late S. Varadaraju,
Aged about 34 years,
2 O.S.No.27388/2009
3. V. Krishnaraju,
S/o Late S. Varadaraju,
Aged about 32 years,
Defendants 1 to 3 are
R/at No.535, West of Chord Road,
II Phase, Mahalakshmipuram,
Bangalore-560 086.
4. Channamma,
D/o Late Sanjeeva Shetty,
W/o K. Krishna,
Aged about 50 years,
R/at No.A-12, II Cross,
Pipeline, Malleshwaram,
Bangalore.
(Pleader by: Sri. MHS Adv., for D.1 to D.3,
Sri. PMN Adv., for D.4)
Date of Institution of the suit 1.12.2009
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Partition
injunction, etc.)
Date of the commencement of recording of 28.1.2012
the Evidence
Date on which the Judgment was 27.4.2019
pronounced
Year/s Month/s Days
Total duration 09 04 26
3 O.S.No.27388/2009
JUDGMENT
This suit is filed by the Plaintiffs for partition and separate possession of their 1/3rd share in the Plaint 'A' and 'C' Schedule Properties by metes and bounds and put them in possession and to declare that the Will dtd: 4.5.1989 purported to be executed by Sanjeeva Shetty as null and void and not binding on the Plaintiffs and to declare that the Gift Deed dtd: 21.4.2006 executed by Sanjeeva Shetty in favour of the Defendant No.1 to 3 as null and void and not binding on the Plaintiffs and for permanent injunction restraining the Defendant No.1 to 3 from interfering with the peaceful possession of the Plaint 'B' Schedule Property and for costs of the suit.
2. The description of the Suit Schedule Properties is as under:
SCHEDULE 'A' PROPERTY All that piece and parcel of the residential property bearing No.535, situated at 4th Main Road, West of Chord Road, II Stage, Mahalakshmipuram, Bangalore-86, measuring East to West: 45 feet and North to South: 30 feet in all measuring 1350 sq.ft., and bounded on:-
East by : 4th Main Road.
West by : Property No.520.
4 O.S.No.27388/2009
North by : Property No.534.
South by : Property No.536.
SCHEDULE 'B' PROPERTY
All that piece and parcel of the portion of the residential property bearing No.535, on the Eastern side, situated at 4th Main Road, West of Chord Road, II Stage, Mahalakshmipuram, Bangalore-86, measuring 11 X 9 feet and bounded on:-
East by : 4th Main Road.
West by : Remaining Property No.535
['A' Schedule Property].
North by : Property No.534.
South by : Property No.536 and remaining
portion of property No.535.
SCHEDULE 'C' PROPERTY
House No.164 and land Sy.No.23/2A measuring 0-11 guntas and survey No.80/2B measuring 24 guntas of Ungra Village, Yadvani Gram Panchayath, Kunigal Taluk, Tumkur District are described as follows:
SCHEDULE 'C (1)' PROPERTY House No.164, of Ungra Village, Yadvani Gram Panchayath, Kunigal Taluk, Tumkur District and bounded by:
East by : Oni Road.
West by : Private Property.
5 O.S.No.27388/2009
North by : Road.
South by : Private Property.
SCHEDULE 'C(2)' PROPERTY
Survey No.80/2B measuring 24 guntas assessed Rs.1.20 paise situated at Ungra Village, Amrathuru Hobli, Kunigal Taluk, Tumkur District.
SCHEDULE 'C(3)' PROPERTY Sy.No.23/2A measuring 0-11 guntas situated at Ungra Village, Amrathuru Hobli, Kunigal Taluk, Tumkur District.
3. The case of the plaintiffs in brief are as follows:-
(i) The original propositus of the family is Sanjeeva Shetty.
He had three sons by name S. Varadaraju, Lakshminarayana and Janakiram and one daughter who is the Defendant No.4. All the three sons of Sanjeeva Shetty are no more. The Plaintiffs are the widow and the daughter of Late Lakshminarayana. The Defendant No.1 to 3 are the widow and children of Late Varadaraju. It is stated that the other son Janakiram died intestate as a bachelor. It is stated that Varadaraju has passed away on 17.3.2002, Lakshminarayana on 12.2.2001 and Sanjeeva Shetty has passed away on 5.12.2008. The Plaintiffs have stated that Late Sanjeeva 6 O.S.No.27388/2009 Shetty had acquired the Plaint 'A' Schedule Property by way of Lease cum Sale Agreement executed by the CITB on 4.12.1973 and thereafter the absolute Sale Deed was executed in his favour on 6.4.2006. The Plaintiffs are staying in the portion of the Plaint 'A' Schedule Property which is described as the Plaint 'B' Schedule Property. Late Sanjeeva Shetty had also acquired the ancestral properties which are described in the Plaint 'C' Schedule Properties. The Plaintiffs and the Defendants have succeeded to the said properties on the death of Sanjeeva Shetty.
(ii). The Plaintiffs have stated that recently they came to know that the Defendants have created a registered Will dtd:
4.5.1989 of Late Sanjeeva Shetty. It is stated that Late Sanjeeva Shetty was not in a sound state of mind and he was aged more than 70 years and his eye sight was poor.
(iii). The Plaintiffs have also stated that the Defendants No.1 to 3 have created the Gift Deed dtd: 21.4.2006 in respect of the Plaint 'A' Schedule Property under which they have taken the major share in the Plaint 'A' Schedule Property. The said Gift Deed is created and fraudulent document and Late Sanjeeva Shetty was not in a sound state of mind at the time of execution of the said Gift Deed.
7 O.S.No.27388/2009
(iv) The Plaintiffs demanded the Defendant No.1 to 3 their 1/3rd share in the Plaint Schedule Property. But, the Defendants have not come forward to partition the Plaint Schedule Property. They have tried to dispossess the Plaintiffs from the Plaint 'B' Schedule Property and also to disconnect the water connection to the Plaint 'B' Schedule Property. The Will dtd: 4.5.1989 and Gift Deed dtd: 21.4.2006 are concocted and fraudulent documents only to deprive the legitimate right of the Plaintiffs over the Plaint Schedule Properties. Therefore, the Plaintiffs have prayed to decree the suit.
4. In pursuance of the suit summons the Defendants have appeared through their counsels and the Defendant No.1 to 3 have filed common written statement and the Defendant No.4 has filed the separate written statement.
5. In the written statement the Defendant No.1 to 3 have stated that the suit is not maintainable as it is filed without having the cause of action and the same is barred by time. The property is not properly described. The valuation and the court fee paid is not correct. The Plaint 'A' Schedule Property is the self-acquired property of Late Sanjeeva Shetty. The wife of Sanjeeva Shetty died 8 O.S.No.27388/2009 on 16.11.1994. The sons of Sanjeeva Shetty predeceased him. Sri.Sanjeeva Shetty was residing with the Defendant No.1 to 3. The Defendant No.1 to 3 were looking after him with love and affection. The Plaintiffs and the fourth Defendant never looked after Late Sanjeeva Shetty. Under these circumstances Late Sanjeeva Shetty executed a registered Gift Deed dtd: 21.4.2006. Under the said Gift Deed the property to an extent of 33 X 26 feet which is described in the schedule to the written statement was gifted to the Defendant No.1 to 3 and by virtue of the Gift Deed the Defendants No.1 to 3 have changed the khatha and have been paying the taxes in respect of the property. They have denied that the Will dtd:4.5.1989 and the Gift Deed dtd: 21.4.2006 are concocted and fraudulent documents.
6. In the additional written statement the Defendant No.1 to 3 have denied that the Plaint 'C' Schedule Properties are the ancestral properties. They have stated that the said properties are the self-acquired properties of Late Sanjeeva Shetty. The house property which is Plaint 'C' Schedule Property is gifted in favour of the Defendant No.2 as per the Gift Deed dtd: 13.11.1996. The land bearing Village Assessment No.55, Khatha No.48, No.88, Eastern Portion measuring 40 X 50 situated at Laggere, Bengaluru, is the 9 O.S.No.27388/2009 property of Late Sanjeeva Shetty. The Defendant No.1 to 3 are also having the joint right in the said properties. The suit without including the said lands is not maintainable. Therefore, the Defendant No.1 to 3 have prayed to dismiss the suit.
7. In the written statement the Defendant No.4 has admitted the claim of the Plaintiffs and has prayed to grant her the 1/3rd share in the Plaint Schedule Properties.
8. On the basis of the above pleadings, the following issues have been framed:-
1. Whether the Plaintiffs prove that the Plaint Schedule Properties are the joint family properties liable for partition?
2. Whether the Plaintiffs are entitle for 1/3rd share?
3. Whether the Will dated: 4.5.1989 and Gift Deed dated: 21.4.2006 are null and void?
4. What order or decree?
Additional Issues
1. Whether the Defendants 1 to 3 prove that Late Sanjeeva Shetty has duly executed the Registered Will dtd: 13.11.1996 and he was in a sound disposing state of mind?
2. Whether the Defendants 1 to 3 prove that Late Sanjeeva Shetty has duly executed the Registered Gift Deed dtd: 21.4.2006?
10 O.S.No.27388/2009
3. Whether the Defendants 1 to 3 prove that the suit is bad for non-inclusion of all the joint family properties?
9. To prove the case of the plaintiffs, the Plaintiff No.1 got examined herself as PW.1 and got marked the documents as per Ex.P.1 to Ex.P.12 and the side of the Plaintiffs was closed. The Defendant No.1 got examined herself as DW.1 and five more witnesses as DW.2 to DW.6 and got marked the documents as per Ex.D.1 to Ex.D.41 and closed their side.
10. Heard, the learned counsel for the Plaintiffs and the Defendants.
11. My answers to the above issues is as follows:-
Issue No.1 : The Plaint Schedule Properties except the property covered under Ex.D.41 are the joint properties of the Plaintiffs and the Defendants and are liable for partition.
Issue No.2 : The Plaintiff is entitled for 1/3rd share in the Plaint Schedule Properties except the property covered under Ex.D.41.
Issue No.3 : The Plaintiffs have proved that the Will dtd: 4.5.1989 is null and void and have failed to prove that the Gift Deed dtd: 21.4.2006 is null and void.11 O.S.No.27388/2009
Addl.Issue No.1 : In the Negative.
Addl.Issue No.2 : In the Affirmative. Addl.Issue No.3 : In the Negative.
Issue No.4 : As per the final order
for the following:-
REASONS
12. Additional Issue No.1:- This issue, Issue No.3 and the additional issue No. 2 have to be taken up first for consideration as the findings on these issues will have the bearing on the Issue No.1.
13. The Defendant No.1 to 3 have contended that Late Sanjeeva Shetty has executed the Will dtd: 13.11.1996 and has bequeathed the portion of the Plaint 'A' Schedule Property in favour of the Defendant No.1 to 3. The said Will is produced and marked as Ex.D.24. It is a registered Will. The Plaintiffs have contended that Late Sanjeeva Shetty was not in a sound disposing state of mind and he was aged more than 70 years and his eye sight was poor.
14. The said Will Ex.D.24 which is a registered Will and as per the said Will the property which is bequeathed is as follows: 12 O.S.No.27388/2009
«¯ïUÉ ¸ÉÃjgÀvÀPÀÌ D¹ÛAiÀÄ ±ÉqÀÆå¯ï «ªÀgÀ PÀĤUÀ¯ï vÁ®ÆèÃPÀÄ CªÉÄÊPÀÆgÀÄ ºÉÆç½ GAUÀæ UÁæªÀÄzÀ°è £À£Àß ¸ÀéAiÀÄÁfðvÀªÁV §AzÀ ºÁ° £À£Àß C£ÀĨÀsªÀzÀ°ègÀĪÀ jøÀªÉð MAzÀÄ£ÀÆgÀ JAl£Éà £ÀA§gï «¹ÛÃtð DgÀÄ UÀÄAmÉUÉ DPÁgÀ E¥ÀàvÉåzÀÄ ¥ÉʸɪÀżÀî vÀjd«ÆäUÉ ZÀPÀÄ̧A¢ ¥ÀǪÀðPÉÌ aPÀ̪ÀgÀzÀ±ÉnÖ, ¥À²ÑªÀÄPÉÌ £ÁgÁAiÀÄt, GvÀÛgÀPÉÌ ¸ÀAfêÀ±ÉnÖ, zÀQëtPÉÌ ªÀgÀzÀ£ÁgÁAiÀÄt±ÉnÖ FªÀÄzÉåªÀżÀî ¸ÀévÀÄÛ ªÀAzÀÄ. rmÉÆ UÁæªÀÄzÀ SÁ£É±ÀĪÀiÁj MAzÀÄ£ÀÆgÉʪÀvÉÛgÀqÀ£É £ÀA§gÀÄ ªÀÄAUÀ¼ÀÆgÀÄ ºÀAa£ÀªÀÄ£ÉAiÀÄ «¹ÛÃtð ¥ÀǪÀð¥À²ÑªÀÄ E¥ÀàvÉÊzÀÄ Cr GvÀÛgÀzÀQët ªÀÄƪÀvÀÄÛCrAiÀÄļÀî ªÀÄ£ÉAiÀÄ DPÁgÀ JgÀqÀÄgÀÆ¥Á¬ÄªÀżÀî ¸ÀéwÛUÉ ZÀPÀÄ̧A¢ ¥ÀǪÀðPÉÌ gÀ¸ÉÛ, ¥À²ÑªÀÄPÉÌ C¥ÀÅà±ÉnÖ, GvÀÛgÀPÉÌ ¤ÃgÀUÁ®ÄªÉ, zÀQëtPÉÌ ªÀÄdæªÀÄä£ÀªÀÄ£É, FªÀÄzsÉåªÀżÀî ¸ÀévÀÄÛªÀAzÀÄ.
15. Out of the above properties only the property bearing House No.164 is involved in this suit which is described as schedule 'C(1)' property.
16. Our Hon'ble High Court in the case of J.T. Surappa and another V/s Sri. Sachidhananadendra Saraswati Swamiji Public Charitable trust and others, reported in 2008(3) K.C.C.R. 1484, has discussed the various aspects that the Court has to bear in mind in a case where the execution and proof of the Will. It is observed by the Hon'ble High Court as follows:-
"Therefore the Court has to tread a careful path in the enquiry to be conducted with regard to Will. The said path consists of five steps "PANCHA PADI". The path of enquiry and steps to be traversed are as under:-
(1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will? 13 O.S.No.27388/2009 (2) Whether the natural heirs have been disinherited? If so, what is the reason?
(3) Whether the testator was in a sound state of mind at the time of executing the Will?
(4) Whether any suspicious circumstances exist surrounding the execution of the Will?
(5) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act?
17. In this case, the Defendant No.1 to 3 have produced the Will. The perusal of Ex.D.24 shows that it contains the signature stated to be of Late Sanjeeva Shetty on all the pages and it is attested by two witnesses. The second attesting witness is Sri. Jayaramalu is examined as DW.4. Therefore, the first requirement is fulfilled by the Defendant No.1 to 3.
18. The Plaintiffs have stated that Late Sanjeeva Shetty was not in a sound disposing state of mind and his eye sight was poor. PW.1 in her cross-examination has stated that her marriage was performed on 10.8.1986. She has denied that Late Sanjeeva Shetty was of good health during that time. She has stated that Late Sanjeeva Shetty had poor eye sight and impaired hearing during the year 2005. She has admitted that during his lifetime he never taken treatment in the hospital. The Plaintiff is relying on the Will 14 O.S.No.27388/2009 stated to be executed by Late Sanjeeva Shetty on 4.5.1989. The said Will is also registered, but it is in respect of a different property. It is also admitted that in the year 2006 Late Sanjeeva Shetty obtained the Sale Deed in respect of the Plaint 'A' Schedule Property as per Ex.D.5. It shows that Late Sanjeeva Shetty had been to the Office of the Sub-Registrar for the purpose of registration of this Sale Deed. This fact is also admitted by PW.1. It is admitted by DW.3 Channamma who is the Defendant No.4 and the daughter of Late Sanjeeva Shetty that Late Sanjeeva Shetty was receiving the pension up to the date of his death. DW.4 has stated that Late Sanjeeva Shetty had come to the Office of the Sub- Registrar for the registration of the Will and he had given instructions to draft the Will. It is not suggested to DW.4 that Late Sanjeeva Shetty was not in a sound disposing state of mind at the time of execution of this Will. Therefore, under the above circumstances it can be safely concluded that Late Sanjeeva Shetty was in a sound disposing state of mind at the time of execution of the Will.
19. The second and the fourth points as to whether the legal heirs are disinherited if so, what is the reason and whether there 15 O.S.No.27388/2009 are any suspicious circumstances surrounding the execution of the Will are considered together.
20. The Plaintiffs and the Defendants are the legal heirs of Late Sanjeeva Shetty. The property is bequeathed to Defendant No.2 who is the grand son of Late Sanjeeva Shetty. It is stated that the Defendant No.2 was looking after Late Sanjeeva Shetty and therefore he is bequeathing the property in his favour. It is true that in the year 1996 the age of the Defendant No.2 was around 11 years. Therefore, the recital that the Defendant No.2 was looking after Late Sanjeeva Shetty may not be correct.
21. DW.1 who is the Defendant No.1 and the mother of Defendant No.2 who is the beneficiary of the Will has stated in her evidence that after the death of the wife of Sri. Sanjeeva Shetty herself and Defendant No.2 and 3 took care of Sri. Sanjeeva Shetty. She has stated that in the year 1994 the wife of Sanjeeva Shetty passed away. In her cross-examination she has stated that Sanjeeva Shetty was residing independently and she was looking after him. She has stated that Late Sanjeeva Shetty was residing along with his another son separately.
16 O.S.No.27388/2009
22. The Plaintiff No.1 who herself examined as PW.1 has stated in her evidence has denied that Sanjeeva Shetty was residing along with the family of Varadaraju during his last days. She has stated that Late Sanjeeva Shetty was residing with Janakiram. It is an admitted that fact that Janakiram passed away on 12.2.2001 and he was a bachelor. The other son Varadaraju who is the father of Defendant No.2 passed away on 17.3.2002. Therefore, it is difficult to believe that during the lifetime of the adult sons a grand son who is aged around 11 years would look after his grand father. No other reasons are given as to why no property is bequeathed in favour of the other grand children or the sons. Therefore, this recital in the Will is wrong and creates a suspicion about the genuineness of the Will. Therefore, this Court holds that there is suspicious circumstance surrounding the execution of the Will as the reason given for the bequest is unacceptable and no reason is given as to why no property is given to the other legal heirs. Therefore, this raises a doubt about the execution of the Will.
23. Therefore, it has to be held that the due execution of the Will is not proved by the Defendant No.1 to 3. Hence, Additional Issue No.1 is answered in the Negative.
17 O.S.No.27388/2009
24. Additional Issue No.2:- The Defendant No.1 to 3 have contended that Sanjeeva Shetty has duly executed the Gift Deed dtd: 21.4.2006. They have stated that after the death of his sons and wife Late Sanjeeva Shetty resided with the Defendant No.1 to 3 and the Defendant No.1 to 3 have looked after him with love and affection and therefore due to the love and affection towards the Defendant No.1 to 3 Sanjeeva Shetty has executed the Gift Deed dtd: 21.4.2006 in respect of the property described in the schedule to the written statement which is the portion of the Plaint 'A' Schedule Property. The Plaintiffs have stated that Late Sanjeeva Shetty was not of sound mind and had poor eye sight and the Gift Deed was obtained by the Defendant No.1 to 3 with collusion.
25. The said Gift Deed is produced as per Ex.D.41 by the Defendant No.1 to 3. The certified copy of the same is produced by the Plaintiffs as Ex.P.2. The description of the property in the Gift Deed is as follows:
-B zÁ£ÀzÀ ¸ÀéwÛ£À ¥ÉëqÀÆå®Ä «ªÀgÀ B-
¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀzÀ ¥À²ÑªÀÄ PÁqïð gÀ¸ÉÛ 2£Éà ºÀAvÀ «¨sÁUÀzÀ°è ¨ÉÆAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Ý ¥Áæ¢üPÁgÀzÀªÀgÀÄ ¤«Äð¹gÀĪÀ §qÁªÀuÉAiÀÄ°ègÀĪÀ «AUÀr¹gÀĪÀ ¤ªÉñÀ£ÀUÀ¼À ¥ÉÊQ ¤ªÉñÀ£À ¸ÀASÉåB 535 (LzÀÄ£ÀÆgÀÄ ªÀÄƪÀvÉÛÊzÀÄ)£Éà £ÀA§gÀÄ ¸ÀévÁÛVzÀÄÝ, ºÁ°Ã ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ 14£Éà ªÁrð£À ªÁå¦ÛUÉ M¼À¥ÀnÖgÀĪÀ, ¥À²ÑªÀÄ PÁqïð gÀ¸ÉÛ, §¸ÀªÉñÀégÀ£ÀUÀgÀ, 2£Éà ºÀAvÀ zÀ°ègÀĪÀ 11£Éà CqÀØgÀ¸ÉÛ, 4£Éà ªÀÄÄRågÀ¸ÉÛ AiÀÄ°ègÀĪÀ ªÀÄĤ¹¥À¯ï 535 (LzÀÄ£ÀÆgÀ ªÀÄƪÀvÉÛÊzÀÄ) £Éà £ÀA§gÀÄ 18 O.S.No.27388/2009 (¦.L.r.£ÀA§gÀÄ 14-74-535), 45-0 x 30-0 CrUÀ¼À C¼ÀvÉAiÀÄļÀî ¥ÀÇgÁ ¸ÀéwÛ£À ¥ÉÊQ ¥ÀǪÀð ¨sÁUÀzÀ 33-0 x 26-0 CrUÀ¼À C¼ÀvÉAiÀÄļÀî ªÀÄ£É ¸À»vÀªÁzÀ ¸ÀéwÛUÉ ZÀPÀÄ̧A¢B ¥ÀǪÀðPÉÌ B gÀ¸ÉÛ.
¥À²ÑªÀÄPÉÌ B EzÉà £ÀA§gÀÄ ¥ÉÊQ £Á£ÀÄ £À£Àß ªÀÄUÀ ¢ªÀAUÀvÀB®QëäãÁgÁAiÀÄt£À ªÀÄUÀ½UÉ «¯ï ªÀÄÆ®PÀ ©nÖgÀĪÀ 12-0 x 26-0 CrUÀ¼À C¼ÀvÉ ªÀÄ£É ¸À»vÀªÁzÀ ¸ÀévÀÄÛ.
GvÀÛgÀPÉÌ B EzÉà £ÀA§gÀÄ ¥ÉÊQ £Á£ÀÄ ©nÖgÀĪÀ 4-0 Cr CUÀ¼À®zÀ ¥Áå¸ÉÃdÄ.
zÀQëtPÉÌ B 536£Éà £ÀA§gÀÄ ¸ÀévÀÄÛ.
26. Therefore, it is clear that the Gift Deed is in respect of the portion of the Plaint 'A' Schedule Property. The Gift Deed is duly registered. It contains the photograph of Late Sanjeeva Shetty. It is stated that he is gifting the property to the widow and the children of his son S. Varadaraju. As already stated the evidence on record clearly establishes that Late Sanjeeva Shetty was of sound health till his death. Ex.D.5 shows that the Sale Deed was executed by the BDA in favour of Late Sanjeeva Shetty and Late Sanjeeva Shetty had been to the Office of the Sub-Registrar for registration of the said Gift Deed.
27. The Gift Deed is a compulsorily attestable document. It is attested by two witnesses. The Defendant No.1 to 3 have examined DW.6 D.S. Siddegowda who is one of the attesting witness to Ex.D.41. His evidence proves due execution of the Gift Deed. 19 O.S.No.27388/2009
Sri.Sanjeeva Shetty passed away two years after the execution of the Gift Deed i.e., on 5.12.2008. Ex.D.21 the order passed by the BBMP on 3.12.2007 shows that during the lifetime of Sanjeeva Shetty the Defendant No.1 to 3 have changed the khatha in their name and they have been paying the taxes.
28. The said property is acquired by Late Sanjeeva Shetty during his lifetime from the BDA. Therefore, it is his self-acquired property. Hence, Late Sanjeeva Shetty had the right to execute the Gift Deed and the Defendant No.1 to 3 have acquired valid right over the said property. Hence, this Court holds that the Defendant No.1 to 3 have proved that Late Sanjeeva Shetty has duly executed the registered Gift Deed dtd: 21.4.2006. Hence, Additional Issue No.2 is answered in the Affirmative.
29. Issue No.3:- The Plaintiffs have pleaded that the Will dtd: 4.5.1989 is null and void. The said Will is produced by the Plaintiffs as Ex.P.1. No party to the suit is relying on the said Will. The said Will is also not duly proved. Therefore, it has to be held that the Plaintiffs have proved that the Will dtd: 4.5.1989 stated to have been executed by Late Sanjeeva Shetty is null and void. 20 O.S.No.27388/2009
30. The Plaintiffs have pleaded that the Gift Deed dtd:
21.4.2006 is also null and void. This Court while discussing Additional Issue No.2 has held that the Gift Deed is valid.
Therefore, it has to be held that the Plaintiffs have failed to prove that the Gift Deed dtd: 21.4.2006 is null and void. Hence, this Issue is answered as above.
31. Issue No.1:- There is no dispute that the Plaint Schedule Properties belonged to Late Sanjeeva Shetty. This Court has held that Late Sanjeeva Shetty has executed the Gift Deed in respect of the portion of the Plaint 'A' Schedule Property in favour of Defendant No.1 to 3. This Court has held that the Will dtd:13.11.1996 is not duly proved. The Plaintiffs have referred to the particulars of the western boundary in the property in Ex.D.41, it shows that on the East - is the portion measuring 12 X 26 feet with a house given to the daughter of Late Lakshminarayana under the Will. But, the said Will is not on record, the Plaintiffs have also not pleaded about the said Will. Therefore, it has to be held that there is no testament left behind by Sanjeeva Shetty in respect of the remaining portion of the Plaint 'A' Schedule Property.
32. Therefore, it has to be held that Late Sanjeeva Shetty has died in respect of all the properties except for the property covered 21 O.S.No.27388/2009 in the Gift Deed Ex.D.41. The Plaintiffs and the Defendants being the legal heirs succeed to the said property as joint owners. Therefore, this Court holds that the Plaint Schedule Properties except the property covered under Ex.D.41 are the joint properties of the Plaintiffs and the Defendants and are liable for partition. Hence, Issue No.1 is answered accordingly.
33. Issue No.2:- There is no dispute that Late Sanjeeva Shetty had died leaving behind the Plaintiffs and the Defendants as his only legal heirs. He had three sons and one daughter, the Defendant No.4. All the three sons predeceased him and one son Janakiram has died as a bachelor. Therefore, the legal heirs of the sons would collectively take 1/3rd share each and the Defendant No.4 would be entitled for 1/3rd share in the properties left behind by Sanjeeva Shetty. The Plaintiff No.1 being the legal heir of Late Lakshminarayana son of Sanjeeva Shetty would be entitled for 1/3rd share and the Defendant No.1 to 3 being the legal heirs of Late Varadaraju son of Sanjeeva Shetty would be collectively entitled for 1/3rd share and the Defendant No.4 is entitled for 1/3rd share in the properties left behind by Sanjeeva Shetty. The Plaintiff is entitled for 1/3rd share in the Plaint Schedule Properties except 22 O.S.No.27388/2009 the property covered under Ex.D.41. Hence, Issue No.2 is answered as above.
34. Additional Issue No.3:- The Defendant No.1 to 3 have contended that the suit is bad for non-inclusion of the property bearing Khatha No.48 situated at Laggere, Bengaluru. It is stated that the property was purchased out of the money given by Sanjeeva Shetty to the Plaintiffs. The Defendants have produced the certified copy of the Sale Deed in respect of these properties as per Ex.D.18 which is dtd: 9.6.2010. This Sale Deed is in favour of the Plaintiff. It is executed after the death of Late Sanjeeva Shetty. There is no material produced to show that the amount is paid by Late Sanjeeva Shetty to the Plaintiffs and the sale consideration for this Sale Deed is paid out of the said amount. During the course of trial it is also suggested that there is a property at Malleshwaram which belonged to Late Sanjeeva Shetty. But, no documents in respect of the same are produced. There is no pleading regarding this property. DW.3 has denied that the property at Malleshwaram is the property belonged to Late Sanjeeva Shetty. Therefore, this Court holds that the Defendants have failed to prove that the suit is bad for non-inclusion of all the properties. Hence, Additional Issue No.3 is answered in the Negative.
23 O.S.No.27388/2009
35. Issue No.4:- Considering the relief claimed and the relief granted and the relationship between the parties, the parties must be directed to bear their respective costs. In the result this Court proceeds to pass the following:
ORDER The suit of the plaintiffs is decreed in part with no order as to costs as follows:
It is declared that the Plaintiff No.1 and Defendant No.4 are entitled for 1/3rd share each in the Plaint Schedule Properties except the portion of the Plaint 'A' Schedule Property covered under Ex.D.41 the registered Gift Deed dtd: 21.4.2006 executed by Late Sanjeeva Shetty in favour of Defendant No.1 to 3 which is registered as document No.459-2006-07 of Book-I, CD No.RJND89 of Office of the Sub-Registrar, Rajajinagar, Bengaluru.
It is declared that the registered Will dtd: 4.5.1989 stated to have been executed by Sanjeeva Shetty is null and void and not binding on the Plaintiffs.
The suit of the Plaintiff praying for declaration that the Gift Deed dtd:21.4.2006 executed by Sanjeeva Shetty in favour of the 24 O.S.No.27388/2009 Defendant No.1 to 3 as null and void and not binding on the Plaintiffs is dismissed.
The partition in respect of the Property shall be effected as per Section 54 of CPC.
Draw up preliminary decree accordingly.
[Typed to my dictation on computer by Stenographer, thereof corrected, signed and then pronounced by me in the open Court on this the 27th day of April 2019].
[ J.R.MENDONCA ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bengaluru.
ANNEXURE
1. List of witnesses examined for the plaintiff :-
P.W.1 : Smt. H.N. Geetha.
2. List of documents marked:-
Ex.P.1 : Will dtd: 4.5.1989 executed by Sri. Sanjeeva
Shetty.
Ex.P.2 : Certified copy of the Gift Deed dtd: 21.4.2006
executed by Sri. Sanjeeva Shetty in favour of Smt. Bhagya and others.
Ex.P.3 : Death Certificate of Sanjeeva Shetty. 25 O.S.No.27388/2009 Ex.P.4 : Death Certificate of V. Janakiram.
Ex.P.5 : Encumbrance Certificate. Ex.P.6 : Khatha Certificate. and Ex.P.7 Ex.P.8 : Certified copy of the house extract No.164 of
Ungara Village, Yadawani Hobli, Kunigal Taluk.
Ex.P.9 : RTCs. and Ex.P.10 Ex.P.11 : Two photographs. and Ex.P.12
3. List of witnesses examined by the defendant:
DW.1 : K. Bhagya. DW.2 : V. Sanjeearaju. DW.3 : Channamma. DW.4 : Jayaram. DW.5 : C. Varadaraju. DW.6 : B.S. Siddegowda.
4. List of documents marked by the defendant:
Ex.D.1 : Sanction Letter dtd: 4.6.1973 issued by Bangalore City Improvement Trust Board. Ex.D.2 : Certified copy of the Lease cum Sale Agreement dtd: 4.12.1973 executed by CITB in favour of Sanjeevappa Shetty.26 O.S.No.27388/2009
Ex.D.3 : Memo dtd: 1.1.1974 of CITB in the name of Sanjeevappa Shetty regarding possession of the property.
Ex.D.4 : Official Memorandum dtd: 3.1.1983. Ex.D.5 : Certified copy of the absolute Sale Deed dtd:
6.4.2006 entered into between Sanjeevappa Shetty and BDA.
Ex.D.6 : Khatha Extract. Ex.D.7 : Khatha Certificate. Ex.D.8 : Tax paid receipt. Ex.D.9 : Khatha Extract. Ex.D.10 : Khatha Certificate. Ex.D.11 : 10 Tax paid receipts.
Ex.D.12 : Official Memorandum dtd:3.1.2009 of BESCOM.
Ex.D.13 : Encumbrance Certificate.
Ex.D.14 : Four Bills issued by BWSSB.
Ex.D.15 : Electricity Bill.
Ex.D.16 : Certified copy of the Sale Deed dt: 26.3.1962. Ex.D.17 : Three RTCs standing in the name of Sanjeevappa Shetty.
Ex.D.18 : Certified copy of the Sale Deed dtd: 9.6.2010 entered into between Smt. H.N. Geetha and Smt. Hanumakka and another.
Ex.D.19 : SSLC Marks Card of Sanjeevappa Shetty. Ex.D.20 : Cumulative Record of Sanjeevappa Shetty. 27 O.S.No.27388/2009 Ex.D.21 : Intimation given by Corporation dtd: 3.12.2007. Ex.D.22 : Two tax paid receipts.
Ex.D.23 : Form No.22.
Ex.D.24 : Will dtd: 13.11.1996 executed by Sanjeevappa Shetty.
Ex.D.25 : Sale Deed dtd: 15.6.1969 executed by Sanjeevappa Shetty in favour of Dolla Shetty. Ex.D.26 : Sale Deed dtd: 15.6.1969 executed by Sanjeevappa Shetty in favour of Dolla Shetty. Ex.D.27 : Three Revenue paid receipts.
to Ex.D.29 Ex.D.30 : Tax Demand Register Extract.
Ex.D.31 : Tax Assessment Extract.
Ex.D.32 : Receipt.
Ex.D.33 : Tax Demand Register Extract.
Ex.D.34 : Mutation Register Extract.
Ex.D.35 : Notarized copy of Voter's Identity Card of Jayarama.
Ex.D.36 : Notarized copy of Voter's Identity Card of C. Varadaraju.
Ex.D.37 : Notarized copy of Voter's Identity Card of Chikkavaradashetty.
Ex.D.38 : Certified copy of the Sale Deed dtd: 14.12.1981 in the name of Chikkavaradashetti.
Ex.D.39 : Death Certificate of Chikkavaradashetti. 28 O.S.No.27388/2009 Ex.D.40 : Notarized copy of driving license of DW.6. Ex.D.41 : Will dtd: 21.4.2006 executed by Sri. Sanjeeva Shetty in favour of Smt. K. Bhagya and others.
5. List of witnesses examined by the Court Witness:
CW.1 : Manjunath.N.
6. List of documents marked by the defendant:
Ex.C.1 : Letter dtd: 2.9.2014.
Ex.C.2 : General Power of Attorney dtd: 26.7.1996
executed by Smt. H.N. Geetha.
(J.R.Mendonca),
XXVIII ACC & SJ, B'luru.
29 O.S.No.27388/2009
Judgment pronounced in open Court
as under :- (vide order separately)
ORDER
The suit of the plaintiffs is decreed in part with no order as to costs as follows:
It is declared that the Plaintiff No.1 and Defendant No.4 are entitled for 1/3rd share each in the Plaint Schedule Properties except the portion of the Plaint 'A' Schedule Property covered under Ex.D.41 the registered Gift Deed dtd: 21.4.2006 executed by Late Sanjeeva Shetty in favour of Defendant No.1 to 3 which is registered as document No.459-2006-07 of Book-I, CD No.RJND89 of Office of the Sub-Registrar, Rajajinagar, Bengaluru.
It is declared that the registered Will dtd: 4.5.1989 stated to have been executed by Sanjeeva Shetty is null and void and not binding on the Plaintiffs.
The suit of the Plaintiff praying for declaration that the Gift Deed dtd:21.4.2006 executed by Sanjeeva Shetty in favour of the Defendant No.1 to 3 as null and void and not binding on the Plaintiffs is dismissed.30 O.S.No.27388/2009
The partition in respect of the Property shall be effected as per Section 54 of CPC.
Draw up preliminary decree accordingly.
(J.R.Mendonca), XXVIII ACC & SJ, B'luru.
Office is directed to return the original documents except Ex.P.1 to the parties who have produced the same under property identification and after obtaining the due acknowledgement.
XXVIII ACC & SJ, B'luru.31 O.S.No.27388/2009
Govt. Of Karnataka C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS Form No.9(Civil) AT MAYOHALL UNIT, (CCH-29) BENGALURU. Title sheet for Judgment in suits (R.P.91) Original suit No.27388/2009
1. List of witnesses examined for the plaintiff :-
P.W.1 : Smt. H.N. Geetha.
2. List of documents marked:-
Ex.P.1 : Will dtd: 4.5.1989 executed by Sri. Sanjeeva
Shetty.
Ex.P.2 : Certified copy of the Gift Deed dtd: 21.4.2006
executed by Sri. Sanjeeva Shetty in favour of Smt. Bhagya and others.
Ex.P.3 : Death Certificate of Sanjeeva Shetty. Ex.P.4 : Death Certificate of V. Janakiram.
Ex.P.5 : Encumbrance Certificate. Ex.P.6 : Khatha Certificate. and Ex.P.7 Ex.P.8 : Certified copy of the house extract No.164 of
Ungara Village, Yadawani Hobli, Kunigal Taluk.
Ex.P.9 : RTCs.
and
Ex.P.10
Ex.P.11 : Two photographs.
and
Ex.P.12
(J.R.Mendonca),
XXVIII ACC & SJ, B'luru.
32 O.S.No.27388/2009
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, (CCH-29) BENGALURU.
Title sheet for
Judgment in suits
(R.P.91)
Original suit No.27388/2009
3. List of witnesses examined by the defendant:
DW.1 : K. Bhagya. DW.2 : V. Sanjeearaju. DW.3 : Channamma. DW.4 : Jayaram. DW.5 : C. Varadaraju. DW.6 : B.S. Siddegowda.
4. List of documents marked by the defendant:
Ex.D.1 : Sanction Letter dtd: 4.6.1973 issued by Bangalore City Improvement Trust Board. Ex.D.2 : Certified copy of the Lease cum Sale Agreement dtd: 4.12.1973 executed by CITB in favour of Sanjeevappa Shetty.
Ex.D.3 : Memo dtd: 1.1.1974 of CITB in the name of Sanjeevappa Shetty regarding possession of the property.
Ex.D.4 : Official Memorandum dtd: 3.1.1983. Ex.D.5 : Certified copy of the absolute Sale Deed dtd:
6.4.2006 entered into between Sanjeevappa 33 O.S.No.27388/2009 Shetty and BDA.
Ex.D.6 : Khatha Extract. Ex.D.7 : Khatha Certificate. Ex.D.8 : Tax paid receipt. Ex.D.9 : Khatha Extract. Ex.D.10 : Khatha Certificate. Ex.D.11 : 10 Tax paid receipts.
Ex.D.12 : Official Memorandum dtd:3.1.2009 of BESCOM.
Ex.D.13 : Encumbrance Certificate.
Ex.D.14 : Four Bills issued by BWSSB.
Ex.D.15 : Electricity Bill.
Ex.D.16 : Certified copy of the Sale Deed dt: 26.3.1962. Ex.D.17 : Three RTCs standing in the name of Sanjeevappa Shetty.
Ex.D.18 : Certified copy of the Sale Deed dtd: 9.6.2010 entered into between Smt. H.N. Geetha and Smt. Hanumakka and another.
Ex.D.19 : SSLC Marks Card of Sanjeevappa Shetty. Ex.D.20 : Cumulative Record of Sanjeevappa Shetty. Ex.D.21 : Intimation given by Corporation dtd: 3.12.2007. Ex.D.22 : Two tax paid receipts.
Ex.D.23 : Form No.22.
Ex.D.24 : Will dtd: 13.11.1996 executed by Sanjeevappa Shetty.
34 O.S.No.27388/2009Ex.D.25 : Sale Deed dtd: 15.6.1969 executed by Sanjeevappa Shetty in favour of Dolla Shetty. Ex.D.26 : Sale Deed dtd: 15.6.1969 executed by Sanjeevappa Shetty in favour of Dolla Shetty. Ex.D.27 : Three Revenue paid receipts.
to Ex.D.29 Ex.D.30 : Tax Demand Register Extract.
Ex.D.31 : Tax Assessment Extract.
Ex.D.32 : Receipt.
Ex.D.33 : Tax Demand Register Extract.
Ex.D.34 : Mutation Register Extract.
Ex.D.35 : Notarized copy of Voter's Identity Card of Jayarama.
Ex.D.36 : Notarized copy of Voter's Identity Card of C. Varadaraju.
Ex.D.37 : Notarized copy of Voter's Identity Card of Chikkavaradashetty.
Ex.D.38 : Certified copy of the Sale Deed dtd: 14.12.1981 in the name of Chikkavaradashetti.
Ex.D.39 : Death Certificate of Chikkavaradashetti. Ex.D.40 : Notarized copy of driving license of DW.6. Ex.D.41 : Will dtd: 21.4.2006 executed by Sri. Sanjeeva Shetty in favour of Smt. K. Bhagya and others. 35 O.S.No.27388/2009
5. List of witnesses examined by the Court Witness:
CW.1 : Manjunath.N.
6. List of documents marked by the defendant:
Ex.C.1 : Letter dtd: 2.9.2014.
Ex.C.2 : General Power of Attorney dtd: 26.7.1996
executed by Smt. H.N. Geetha.
(J.R.Mendonca),
XXVIII ACC & SJ, B'luru.