Bangalore District Court
Sri. Nanjappa vs Sri. M.Krishnappa on 2 March, 2020
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 2 nd Day of March, 2020
Present: Sri. R. Ravi,
B.Sc., LL.B.
XVII Addl. City Civil & Sessions Judge.
O.S.No. 6722/2008
Plaintiff/s : 1. Sri. Nanjappa
Since dead by his LRs.
1a) Muniyamma
W/o Late Nanjappa
Aged about 85 years,
1b) Muniraju
S/o Late Nanjappa
Aged about 62 years,
1c) Iyappa @ Raju
S/o Late Nanjappa
Aged about 55 years,
1d) Babu
S/o Late Nanjappa
Aged about 47 years,
All are R/at at No.73/1,
Ward No.94, Nagavara Main Road,
Kadugondanahalli, Bengaluru -45
1e) Sarojamma
W/o Kadiresh
D/o Late Nanjappa
Aged about 43 years,
2 OS.No.6722/2008
1f) Narayanamma
W/o Shiva
D/o Late Nanjappa
Aged about 41 years,
Both are R/at Chokkasandra,
Yeshwanthpura Hobli,
Bengaluru.
1g) Saraswathi
W/o Govindaraj
D/o Late Nanjappa
Aged about 38 years,
R/at Kogilu Village,
Yelahanka Hobli, Bengaluru
[By Sri.V.R., Adv.]
-Vs-
Defendant/s : 1. Sri. M.Krishnappa
S/o Late Muthappa
Aged about 70 years,
2. Hemakka
Since dead by her LRs
2a) Sri. Doddanarayana
S/o Late Myhimanna
Aged about 60 years
2b) Sri. Iyappa @ Chikkaiayappa
S/o Late Myhimanna
Aged about 53 years
2c) Sri. Chikkanarayana
S/o Late Myhimanna
Aged about 44 years
2d) Sri. Babu
S/o Late Myhimanna
3 OS.No.6722/2008
Aged about 35 years
All are R/at Ward No.94,
Nagawara Main Road,
Kadugondanahalli,
Bengaluru - 560 045.
2e) Manjula
W/o Gopala
D/o Late Myhimanna
R/at Kannur Village,
Bidarahalli Hobli,
Bengaluru North Taluk.
3. Dodda Narayan
S/o Late Mahimanna
Aged about 55 years
4. Chikkaiahappa
S/o Late Mahimanna
Aged about 45 years
5. Chikka Narayana
S/o Late Mahimanna
Aged about 70 years
6. Babu
S/o Late Mahimanna
Aged about 35 years
D3 to 6 are R/at Opp. Vinayaka
Temple, Vinayaka Temple Street,
Mukthi Nagar, Kadugondanahalli
Arebic College Post, Ward No.94,
Bengaluru - 560 045.
7. Manjula
D/o Late Mahimanna
W/o Gopal
Aged about 31 years
R/at Kannur Village,
Bidarahalli Hobli,
4 OS.No.6722/2008
Bengaluru East Taluk.
8. Thirumalamma
W/o Late Hemanna
D/o Late Muthappa
Aged about 85 years
R/at No.106, 5th Cross,
Ramaiah Layout, Kammanahalli
Kalyananagar Post,
Bengaluru - 560 084.
9. Muni Hanumakka
Since dead by her LRs
9a) Gangappa
S/o Late Kempaiah
Aged about 85 years
R/at Chokkasandra Village,
Near Kunthiyamma Temple,
Old Gramtana T.Dasarahalli,
Bengaluru - 560 057.
10. Smt. Rathnamma
W/o H.Govindaraju
Aged about 42 years
R/at No.106, 5th Cross,
Ramaiah Layout, Kammanahalli,
Kalyananagar Post,,
Bengaluru - 560 043.
11. Smt. Lakshmamma
D/o Late Dodda Puttamma &
Late Hemanna
W/o Sri. Venkatesh
Aged about 50 years
R/at Vinayaka Temple Street,
10th Main Road,Mukthi Nagar,
Kadugondanahalli
Arebic College Post,
12. Smt. Narayanamma
5 OS.No.6722/2008
D/o Dodda Puttamma &
Late Hemanna
W/o Goklesh
Aged about 48 years
R/at No.105, Gokul Nilaya
Nelagadaranahalli,
Nagasandra Post
Bengaluru - 560 073.
13 Sri. Narayana H.
D/o Dodda Puttamma &
Late Hemanna
Aged about 41 years
R/at No.72, Nishal Yadav Nilaya
Maruthi Badavane, Chokkasandra
T.Dasarahalli Post
Bengaluru - 560 058.
14. Sri. Nanjappa
S/o Late Kurulappa &
Late Muniyamma
Aged about 63 years
R/at No.784, Kurlappa Building
6th Cross, Maruthi Layout,
Chokkasandra
Bengaluru - 560 058.
15 Smt. Puttamma K.
W/o Maimappa
D/o Late Kurlappa & Muniyamma
Aged about 60 years
R/at No.14G, 9th Street,
Jogupalya Ulsoor,
Bengaluru - 560 008.
[D1,8,9(a),10 to15 - By Sri. T.S.M.,
Adv]
[D2 to 7 - Exparte]
Date of institution of the suit 04.10.2008
Nature of the suit Partition
Date of commencement of 26.7.2014
6 OS.No.6722/2008
recording the evidence
Date on which the judgment 02.03.2020
was pronounced
Total duration Years Months Days
11 04 27
(R. Ravi),
XVII Addl. City Civil & Sessions Judge.
***************
JU DG M E NT
This is a suit for Partition & separate possession.
2. The case of the original plaintiff is that, he and
the defendants are the members of Hindu undivided joint
family and they are in joint possession in respect of the land
bearing Sy.No.141 measuring 20 guntas situated at
Kacharakanahalli Village, Kasaba Hobli, Bangalore North
Taluk and Sy.No.93, New Sy.No.93/1 measuring 3 guntas
and Sy.No.93/3 and 94/2 totally measuring 13 guntas of
Kadugondanahalli Village, Kasaba Hobli, Bangalore North
Taluk which is the suit schedule properties and
T.B.R.Shivaram, T.B.R.Boranna, T.B.R.Borojanna, T.H.Rama
Murthy and T.H.Lakshmana Prasad have executed a Gift
deed dated 23.4.1980 in favour of the plaintiff's father and
the 1st defendant in respect of the land bearing Sy.No.141
measuring 2 acres situated at Kacharakanahalli Village,
7 OS.No.6722/2008
Kasaba Hobli, Bangalore North Taluk and since the date of
execution of the gift deed they are in joint possession of the
suit schedule property and the plaintiff's father died in the
year 1986 and after his death, the plaintiff and the 1 st
defendant have succeeded to the properties in question and
even during the life time of the plaintiff's father, the 1 st
defendant was closely moving with his father and taking
undue advantage he collected the signatures of the plaintiff's
father to the sale deeds and he had sold the properties to an
extent of 1 ½ acres in favour of the purchasers in respect of
the property bearing Sy.No.141 of Kacharakanahalli Village,
but the plaintiff's father had retained only to an extent of 20
guntas and the same was in possession of the plaintiff's
father and subsequently after realizing the fact, the plaintiff's
father has not permitted the 1 st defendant to sell away the
sites in respect of the land bearing Sy.No.141 and he had
retained 20 guntas and therefore, the plaintiff and the
defendants are entitled for their legitimate shares in respect
of the said property and the defendants 2 to 7 have filed a
suit for partition and separate possession against the plaintiff
and the other defendants in OS.No.10361/1980 in respect of
the land in Sy.No.141 measuring 20 guntas and Sy.No.93/1
8 OS.No.6722/2008
measuring 3 guntas, 93/3 and 94/2 totally measuring 13
guntas and other properties and the plaintiff's sisters are the
parties to the said suit and they have taken a contention that
the plaintiff's father had executed a Will dated 23.7.1980 in
their favour in respect of the land bearing Sy.No.93/1, 93/3
and 94/2 to an extent of 16 guntas of Kadugondanahalli
Village and in the said Will the said survey numbers has been
shown as Sy.No.93 measuring 16 guntas of
Kadugondanahalli Village and as per the said Will the Hon'ble
court has framed the issues whether the defendants prove
that the Will executed by the plaintiff's father namely
Muthappa dated 23.7.1980 in favour of the plaintiff's sisters
i.e., defendants 8 and 9 in respect of Sy.No.93 to an extent of
16 guntas and the Hon'ble Court has given a finding that the
defendants have not proved the said Will and about one
month back, the plaintiff has requested the 1 st defendant and
other defendants to effect partition and at the first instance
they have agreed to effect division by metes and bounds and
once again about a week back when the plaintiff has
approached the 1st defendant and requested to divide the
properties and to get the partition deed registered before the
concerned Sub-Registrar, but the 1st defendant hand in glove
9 OS.No.6722/2008
with the other defendants has refused to give the share of the
plaintiff and now taking undue advantage of the Gift deed
dated 23.4.1970 the 1st defendant is trying to alienate the
suit schedule properties in favour of the third parties to
create third party rights over the suit schedule properties and
hence he has filed this suit for partition and separate
possession.
3. On the other hand, the defendant No.1, 8 & 9
have filed their written statement and denied the averments
of the plaint as false and incorrect and further contended
that it is false that the plaintiff and defendants are the
members of the Hindu undivided family and they are in joint
possession in respect of the land in Sy.No.141 of
Kacharakanahalli measuring 20 guntas and 3 guntas of the
land in Sy.No.93 and 93/1 and 13 guntas of the land
Sy.No.93/3 and 94/2 of Kadugondanahalli village, Kasaba
Hobli, Bengaluru North Taluk and the lands owned by late
Muthappa was in his exclusive possession and enjoyment till
his death in the year 1986 and after his death, his daughters
being legates under his Will dated 23.7.1980 are in exclusive
possession and enjoyment of the properties as stated in
OS.No.10361/1980 by the defendant No.2 and
10 OS.No.6722/2008
OS.No.8306/2003, the plaintiff was also contesting
defendant and as such the present suit is barred by
limitation, hit by the principles of res-judicata and
constructive res-judicata. The defendants 2 to 7 have filed a
suit for partition in OS.No.10361/1980 in respect of the land
in Sy.No.141 and other properties and the defendants 7 and
8 have stated that their father had executed a Will dated
23.7.1980 in their favour bequeathing all his properties and
the point of validity of Will was not at all in question in the
said suit and the findings of the said suit with regard to
validity of the Will was questioned in RFA.No.1593/2003 and
the Hon'ble High Court has set aside the said finding as it is
unwarranted and not within the scope of the suit. The 2 nd
defendant and others have filed a suit in OS.No.8306/2003
for partition and separate possession of the suit properties
and the plaintiff is the 1st defendant in that suit and the
plaintiff has also appeared in the said suit and filed his
written statement and insisted for his share in the property
and in a suit for partition, the defendants are also in a
position of plaintiff seeking his share and the
OS.No.8306/2003 was dismissed on 3.11.2007 and the said
suit suit the 1st defendant is the 2nd defendant and Smt.
11 OS.No.6722/2008
Tirumalamma and Munihanumakka are the defendants 3 &
4 and having failed to prosecute that suit after completion of
all the pleadings and dismissed the claim of the plaintiff
amounts to res-judicata and hence the present suit is barred
in law and accordingly prayed for dismissal of the above suit.
4. And whereas the defendant No.9(a) has filed his
written statement that the suit is not maintainable either in
law or on facts and further contended that Smt.
Munihanumakka died on 7.6.2016 and he is the legal heir as
they had no issues and she owned immovable properties
which was bequeathed to her by her father Sri.Muthappa and
as absolute owner she bequeathed her properties in favour of
Smt. Rathanamma who is none other than her sister's
daughter-in-law by execution of a Will dated 22.4.2016 and
she has bequeathed the properties formed in Sy.No.93/1 of
Kadugondanahalli village measuring 40 x 29 ½ feet and
property formed in Sy.No.93/3 and 94/2 of Kadugondanahall
Village measuring 17.33 x 280 feet along with shops and
staircase and she has also bequeathed her rights in the land
in Sy.No.142 of Kacharakanahalli Village which is not
partitioned and the share of Smt.Munihanumakka in the
land in Sy.No.142 is also bequeathed in favour of Smt.
12 OS.No.6722/2008
Rathnamma and by virtue of the Will, Smt. Rathnamma has
become the absolute owner of the properties bequeathed to
her and this defendant has no objection for her to enjoy the
bequeathed properties.
5. And whereas the defendant No.10 has filed her
written statement that the suit is not maintainable either in
law or on facts and further contended that, it is false that the
plaintiff and defendants are the members of the Hindu
Undivided family and they are in joint possession in respect
of the land in Sy.No.141 of Kacharakanahalli Village
measuring 20 guntas and Sy.No.93/1, 93/3 and 94/2 of
Kadugondanahalli Village totally measuring 16 guntas and
the said lands owned by Late Muthappa and it was in his
exclusive possession and enjoyment till his death in the year
1986 and after his death his daughters being legates under
his Will dated 23.7.1980 are in exclusive possession and
enjoyment of the properties as stated in OS.No.10361/1980
by the defendant No.2 and OS.No.8306/2003, the plaintiff
was also the contesting defendant and the suit is barred by
limitation, hit by the principles of res-judicata and
constructive res-judicata. The defendants 2 to 7 have filed a
suit for partition in OS.No.10361/1980 in respect of the land
13 OS.No.6722/2008
in Sy.No.141 and other properties and the defendants 7 and
8 have stated that their father had executed a Will dated
23.7.1980 in their favour bequeathing all his properties and
the point of validity of Will was not at all in question in the
said suit and the findings of the said suit with regard to
validity of the Will was questioned in RFA.No.1593/2003 and
the Hon'ble High Court has set aside the said finding as it is
unwarranted and not within the scope of the suit. After the
death of Muthappa in the year 1986 the defendants 8 & 9
enjoyed the properties bequeathed to them as its absolute
owners and taxes were paid by them and the BBMP has
issued notice demanding property tax and defendants 8 & 9
paid the property taxes and the 10 th defendant being the
legatee under a Will of 9th defendant Smt. Munihanumakka
who died on 7.6.2016 is entitled to properties bequeathed to
her and as per the Will the 10 th defendant he has become the
absolute owner of the portions of the suit schedule properties
which was owned by 9th defendant Smt.Munihanumakka and
accordingly prayed for dismissal of the above suit.
6. And whereas the defendants No.11 to 15 have
filed their written statement that the suit is not maintainable
either in law or on facts and further contended that, the
14 OS.No.6722/2008
defendants 2 to 7 have filed a suit for partition in
OS.No.10361/1980 including the suit schedule properties
wherein the plaintiff's sister who was also parties to the said
suit have taken up a contention that the plaintiff and the 1 st
defendant and their father had executed a Will dated
23.7.1980 in respect of the land bearing Sy.No.93 of
Kadugondanahalli village measuring 16 guntas and the
Hon'ble Court had given a finding that the defendants have
not proved the said Will and this finding was challenged in
RFA.No.1593/2003 questioning the finding in the said suit to
the validity of the Will as it is not the question to be
determined and the Hon'ble High Court has set aside the said
finding with regard to validiy of the Will as unwarranted as it
is not within the scope of the said suit and as per the Will
dated 23.7.1980 executed by Sri. Muthappa, legatees have
taken possession of the properties bequeathed to them and
constructed buildings and even let out the newly constructed
buildings and these defendants are grandchildren of Late
Muthappa and defendants 11 to 13 are children of Late
Doddaputtamma and Late Hemanna and Sri. Nanjappa and
the 14th defendant is the son and 15th defendant Smt.
Puttamma is the daughter of Late Kurulappa and Late
15 OS.No.6722/2008
Muniyamma and Smt. Muniyamma died on 6.3.2002 leaving
behind her children Smt.Doddaputtamma, Sri.Nanjappa and
Smt. Puttamma and her husband Sri. Hemannaa and Smt.
Munihanumakka also died on 7.6.2016 leaving behind a Will
dated 22.4.2016 in respect of her portion of the property
bequeathing the same to Smt. Rathnamma being her sister's
daughter-in-law the 10th defendant in the suit and the
legatees of the above property thought it fit to partitiion the
property on 4.11.2016 and partitioned the property amongst
the defendants No.11 to 15 and after coming to know about
the pendency of the suit the defendants 11 to 15 got
themselves impleaded. The 2nd defendant and others have
filed a suit in OS.No.8306/2003 for partition and separate
possession of the suit properties and the plaintiff is the 1 st
defendant in that suit and the plaintiff has also appeared in
the said case and filed his written statement and insisted and
claimed his share. The suit in OS.No.8306/2003 was
dismissed on 3.11.2007 and the plaintiff failed to agitate his
claim after claiming the same and the 1 st defendant in the
said suit Sri. Krishnappa is the 2 nd defendant and Smt.
Tirumalamma and Smt. Munihanumakka are defendants 3 &
4 and having failed to prosecute that suit after completion of
16 OS.No.6722/2008
all the pleadings and dismissed the claim of the plaintiff
amounts to res-juicata as in a partition all the parties to the
suit is in a position of plaintiff and hence prayed for
dismissal of the above suit.
7. On the basis of the pleadings, one of my learned
predecessor has framed the following issues : -
1) Whether the plaintiff proves that the suit
schedule properties are joint family
properties?
2) Whether the defendants prove that suit
of the plaintiff is barred by resjudicata?
3) Whether the plaintiff is entitled for reliefs
as sought for?
4) What order or decree?
Addl. Issues:
1) Whether the defendant No.8, 9(A), 10 to
15 prove that during his life time
Muthappa had bequeathed all his
properties in favour of his daughters
namely Smt.Munihanumakka, Smt.
Thirumalamma and Smt. Muniyamma
through a registered Will dated
23.7.1980?
2) Whether the defendant No.(a) proves that
Smt. Munihanumakka had bequeathed
the property bearing Sy.No.93/1
measuring 40 x 29 ½ feet, Sy.No.93/3 &
Sy.No.94/2 measuring 73.33 x 280 feet
through a Will dated 22.4.2016?
3) Whether the defendant No.1 proves that
he has restrained to an extent of half an
17 OS.No.6722/2008
acre in respect of land bearing Sy.No.141
as a owner thereof?
8. In order to prove the above issues, the GPA holder
of the plaintiff got himself examined as PW.1 and got marked
the documents at Ex.P1 to P16. On the other hand, the 1 st
defendant got examined himself as DW.1 and got marked the
documents at Ex.D1 to D57 & Ex.S1 & S2 and also got
examined 5 more witnesses as DW.2 to 6 and thereafter the
matter was posted for arguments.
9. And I have heard the arguments of both sides
perused the entire materials placed on record.
10. And my findings on the above issues are as
under:-
Issue No.1: In the partly affirmative
Issue No.2: In the negative
Issue No.3: In the partly affirmative
Addl. Issue No.1: In the negative
Addl. Issue No.2: In the negative
Addl. Issue No.3: In the affirmative
Issue No.4: As per final order, for the following:
R E A S ON S
11. Issue No.1 to 3 and Addl. Issue No.1 to 3 :-
Since these issues are inter-related then they are hereby
discussed commonly in order to avoid repetition of facts.
18 OS.No.6722/2008
12. On perusal of the plaint pleadings, it is found that
the plaintiff has filed this suit against the defendants for the
relief of partition and separate possession of his 1/3rd share
over the suit schedule(1) land bearing Sy.No.141 measuring
20 guntas of Kacharakanahalli Village, Bangalore North
Taluk and so also the (2) land bearing Sy.No.93 measuring
16 guntas of Kadugondanahalli Village, Bangalore North
Taluk.
13. And as regards the suit item No.1 property i.e.,
land bearing Sy.No.141 measuring 20 guntas of
Kacharakanahalli Village, Bangalore North Taluk is
concerned, the plaintiff at para-4 of his plaint has clearly
pleaded that originally the said property was gifted by one
T.B.R.Shivaram, T.B.R. Boranna, T.B.R. Borojanna,
T.H.Rama Murthy and T.H.Lakshmana Prasad through a
registered gift deed dated 23.4.1980 in favour of his father/
Muthappa and defendant No.1/M.Krishnappa.
14. Now it is the specific case of the plaintiff that
during the life time of his father, the defendant No.1 was
closely moving with his father and taking undue advantage of
his closeness he collected the signatures of his father to the
19 OS.No.6722/2008
sale deeds and likewise he had sold the properties to an
extent of one and half acres in respect of the said suit
property bearing Sy.No.141 of Kacharakanahalli Village and
as such his father had retained the remaining 20 guntas of
land i.e., suit item No.1 property and since his father/
Muthappa had died intestate then he is having 1/3rd share
over the same.
15. In order to prove the above facts though the GPA
holder of the original plaintiff who is none other than his son
namely plaintiff No.1(d) got himself examined as PW.1 and
got marked the certified copy of the said Gift deed dated
23.4.1980 at Ex.P12 and also produced the RTCs of the same
at Ex.P10 and though the same corroborated the above facts
that suit item No.1 property measuring 2 acres originally
belonged to the plaintiff's father/Muthappa and defendant
No.1/M. Krishnappa, the same are of no help to the case of
the plaintiff as the said oral and documentary evidence does
not prove the retention of suit item No.1 property measuring
20 guntas by the father of the plaintiff namely Muthappa.
16. And even the other documentary evidence of the
plaintiff also does not prove the retention of suit item No.1
20 OS.No.6722/2008
property measuring 20 guntas by the father of the plaintiff
namely Muthappa as on the date of filing of the suit.
17. On the other hand the contesting defendant No.1
by clearly pleading and leading his oral evidence at DW.1 and
further producing the documentary evidence of
Ex.D6/conversion order of 1 acre in Sy.No.141 in favour of
Muthappa and the partition deed dated 20.5.1982 in between
the said Muthappa and defendant No.1 at Ex.D22 has clearly
rebutted the case of the plaintiff and further proved that
he/defendant No.1 and his father Muthappa have partitioned
the said land bearing Sy.No.141 measuring 2 acres as per
Ex.D22 and in the said partition he/defendant No.1 got one
acre and his father Muthappa also got one acre and
thereafter his father Muthappa got converted his share of one
acre as per Ex.D6 and sold the same to the purchasers
during his life time only and as such he is in possession of 20
guntas of suit item No.1 property as its absolute owner and
as such the plaintiff and other defendants have no right to
seek any partition over the same.
18. And it is interesting to note at this stage that
though the said defendant No.1 has not at all pleaded the
21 OS.No.6722/2008
whereabouts of the said partition deed of Ex.D22 dated
20.5.1982, the same is not at all fatal to his case as the
plaintiff No.1(d)/PW.1 at page-8 of his cross-examination has
clearly admitted that "as per the gift deed his grandfather/
Muthappa had got 1 acre in Sy.No.141 and so also his uncle/
M.Krishnappa/defendant No.1 had got one acre in the said
Sy.No.141".
19. And since the plaintiff himself has clearly pleaded,
deposed and admitted that out of the said 2 acres of land
bearing Sy.No.141, one and half acres were already sold in
favour of the purchasers and since the plaintiff has only
objected for marking of said partition deed of Ex.D22 with
regard to the payment of duty and penalty and since the
defendant No.1 has paid the said duty and penalty and got it
cured the objection one raised by the plaintiff and in the
admitted proceedings of Ex.P15 & 16/judgment and decree of
OS.No.10361/1980 this Hon'ble Court has already held that
the plaintiffs of the said suit are not at all entitled for share
in the said Sy.No.141 of Kacharakanahalli Village and since
the said finding has not at all been set aside in the judgment
and decree of Ex.D11 & 12/RFA.No.1593/2003 and since the
said property bearing Sy.No.141 of Kacharakanahalli Village
22 OS.No.6722/2008
is excluded in the admitted partition deed of Ex.D2 dated
25.3.2010 [marked in the cross-examination of PW.1] and
since nothing worthwhile has been elicited in the cross-
examination of defendant No.1/DW.1 with regard to the due
execution of the said partition deed of Ex.D22 and since in a
ruling of 2019 SAR (Civil) 732 one relied on by the
defendant No.1 the Hon'ble Supreme Court of India has
clearly held that "Family settlement - though not
registered would operate as a complete estople against
the parties thereto and such document can be looked as
corroborative evidence" and since the plaintiff has not at all
produced any cogent material evidence to prove the retention
of suit item No.1 property measuring 20 guntas of Sy.No.141
of Kacharakanahalli Village by his father Muthappa then it
has to be held in unequivocal terms that the plaintiff and his
LRs are not at all entitled to any share over the said suit item
No.1 property.
20. And as regards the suit item No.2 property i.e.,
land bearing Sy.No.93 measuring 16 guntas of
Kadugondanahalli Village is concerned, it is the specific case
of the plaintiff that the said property belonged to his father
Muthappa and he has not at all executed the alleged Will
23 OS.No.6722/2008
dated 23.7.1980 in respect of said suit property in favour of
defendant No.8 & 9 and even in the proceedings of
OS.No.10361/1980 this Hon'ble Court has also given a
finding to that effect and as such he is entitled to 1/3rd
share over the same.
21. On the other hand it is specific case of the
contesting defendants 1, 8 & 9 that the said suit schedule
property bearing Sy.No.93 measuring 16 guntas of
Kadugondanahalli Village is concerned, the same is
bequeathed by Late Muthappa in favour of defendant No.8 &
9 through a registered Will dated 23.7.1980 and even though
in the proceedings of OS.No.10361/1980 this Hon'ble Court
has given a finding that the said Will is not at all proved by
the parties, the same do not hold any water as in the
proceedings of Ex.D11 & 12/RFA.No.1593/2003 the Hon'ble
High Court of Karnataka has expunged the above findings
and as such the plaintiff and his LRs are not at all entitled to
seek any share over the suit said schedule item No.2
property.
22. In view of the above specific defence, the burden
of proving the due execution and attestation of the said Will
24 OS.No.6722/2008
of Muthappa dated 23.7.1980 is rather casted on the
defendants 1, 8 & 9 and other defendants.
23. And in order to prove the due execution and
attestation of the said Will of Muthappa dated 23.7.1980,
though the defendant No.1, defendant No.10 and defendant
No.14 got themselves examined as DW.1, DW.2 and DW.5
and further examined a witness at DW.6 and also got marked
the above said alleged Will at Ex.D24 & so also got marked
the certified copy of the said Will at Ex.D25, the same do not
hold any water as admittedly the above said alleged Will of
Ex.D24 is not at all a completed document and the said
document does not contain the most importent pages of due
execution and attestation by Muthappa & other witnesses.
24. Even though the said defendants have allegedly
produced the certified copy of the said Will dated 23.7.1980
at Ex.D25, the same is of no help tot he case of the above
defendants as it neither shows the alleged signature of Late
Muthappa nor shows the signatures of any attesting
witnesses.
25. And even otherwise since the said contesting
defendants 1, 8, & 9 have not at all laid any foundation in
25 OS.No.6722/2008
their written statement with regard to the production of the
said secondary evidence of Ex.D25/certified copy of Will
dated 23.7.1980 in terms of section 65 of the Indian Evidence
Act, 1872 and since the said defendant No.1, 8 & 9 have also
not at all stated the destruction of the material pages of the
original Will of Ex.D24 and since section 68 of the Indian
Evidence Act, 1872 clearly says that "Proof of execution of
document required by law to be attested - 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, unless its execution by the person by
whom it purports to have been executed is specifically
denied" and since in a ruling of ILR 2006 AIR 4213 our
Hon'ble High Court of Karnataka has clearly held that
"Section 68 of the Evidence Act requires a party to
produce the document in evidence by examining an
26 OS.No.6722/2008
attestor on the document and the document shall not be
used as evidence until one attesting witness has to be
called for the purpose of proving its execution " then the
production of the incomplete Will of Ex.D24 and certified
copy of Ex.D25 are of no help to the case of the said
defendants 1, 8 & 9 to prove the due execution and
attestation of the said Will of Muthappa dated 23.7.1980.
26. And moreover in order to prove the due execution
and attestation of the said Will of Muthappa dated 23.7.1980
in terms of Section 68 & 69 of Indian Evidence Act, though
the defendants have lead the oral evidence of a witness at
DW.6 to prove that his late father namely S.Muniswamappa
was an attesting witness to the above said Will of Ex.D24 &
D25 and even though the said witness of DW.6 has allegedly
produced a GPA of his father at Ex.S1, the same do not hold
any water as the remaining pages of Will of Ex.D24
containing the signatures of the Muthappa and attesting
witnesses are not at all available on record for comparison.
27. On the above point the plaintiffs have relied upon
a ruling ILR 2007 KAR 247 wherein our Hon'ble High
Court of Karnataka has clearly held that "Though the
27 OS.No.6722/2008
court has got power to compare the disputed signature
as per section 73 of the Evidence Act still when the court
entertains a slightest doubt with regard to the signature
then the court shall hesitate to compare the signatures ".
28. And since the said oral evidence of DW.6 does not
meet the mandatory requirements of section 68 of the Indian
Evidence Act and since the said defendant No.1, 8 & 9 have
not at all proved the due execution and attestation of the said
Will of Muthappa dated 23.7.1980 by means of other
evidence as enumerated under Section 71 of the Indian
Evidence Act and since the said DW.6 at page-7 of his cross-
examination has clearly admitted that "he has not at all
stated any thing with regard to the whereabouts & tracing of
another attesting witness Kannaiah in his examination-in-
chief affidavit and since DW.5 also at page-6 of his cross-
examination has clearly admitted that "he has not at all
personally seen the execution of the Will of Muthappa dated
23.7.1980" and since in a ruling of (2003) 2 SCC 91 one
relied on by the plaintiff the Hon'ble Supreme Court of
India has clearly held that "Attestation of Will by two or
more witnesses - Proof - Only one of the two attesting
witnesses examined but he failing to prove attestation of
28 OS.No.6722/2008
the Will by the other attesting witness who though
available not examined - Held, mandatory requirements
of S.63 of Succession Act and S.68 of Evidence Act not
satisfied and S.71 of Evidence Act not attracted in the
circumstances" then it has to be held in unequivocal terms
that the due execution and attestation of the said Will of
Muthappa dated 23.7.1980 is not at all proved by the
defendants.
29. And lastly though the said defendant No.1, 8 to 15
by relying upon the rulings of LAWS [APH] 1999 9 45 and
2012 (4) KLJ 501 [DB] has argued that since the said
registered Will of Muthappa dated 23.7.1980 is more than 30
years old & if the attestors and scribe of the Will are not alive
then as per Section 90 of the Indian Evidence Act it has to be
presumed that the Will has been proved, the same are of no
help to the case of the above defendants as in the ruling of
AIR 2013 SC 2088 one relied on by the plaintiffs the
Hon'ble Supreme Court of India has clearly held that
"Evidence Act, S.90 and S.68 - Will - Presumption as to
due execution of 30 years old - Does not apply to Will -
Will has to be proved in terms of Section 63(c) of
29 OS.No.6722/2008
Succession Act read with section 68 of the Evidence
Act".
30. And above all though the defendant No.10 to 15
have allegedly contended that by virtue of the registered Will
of Ex.D30 dated 22.4.2016 and by virtue of registered
partition deed dated 4.11.2016 they have become the owners
and possessors of suit item No.2 property measuring 16
guntas of Sy.No.93 of Kadugondanahalli Village, the same do
not hold any water because as discussed above the above
defendants and so also the other defendants have failed to
prove the bequeathing of the suit item no.2 property by the
said Muthappa in favour of defendant No.8 & 9 through the
alleged Will dated 23.7.1980 with cogent material evidence.
31. And since the title of suit item No.2 property has
not at all been passed in favour of the defendant No.8 & 9
then naturally the defendant No.10 to 15 will not get any title
through the alleged registered Will of Ex.D30 dated 22.4.2016
and so also through the alleged registered partition deed
dated 4.11.2016 and as such the oral evidence of DW.3 to 5
are of no help to the said defendant No.10 to 15.
30 OS.No.6722/2008
32. Even though the said oral and documentary
evidence of the defendants allegedly shows the possession of
the defendants over the suit item No.2 property and even
though the same does not show the possession of the
plaintiffs over the same, the same is not at all fatal to the
case of the plaintiffs as in the rulings of ILR 2007 KAR 3454
and 2015 (2) KCCR 1437 [DB] one relied on by the
plaintiffs our Hon'ble High Court of Karnataka has clearly
held that "When once the parties are co-owners, their
right to partition cannot be resisted - The co-sharers in
possession would become constructive trustees on behalf
of the co-sharer who is not in possession and right of
such co-owner would be deemed to be protected by the
trustees - The defendants are in possession of the
schedule properties as trustees on behalf of the plaintiff
- Though the plaintiffs are not in physical possession of
the properties, they are in constructive possession of the
suit schedule properties through their co-sharers i.e.,
the defendants - Therefore, the plaintiffs as co-owners
are entitled to maintain a suit for partition against the
defendants".
31 OS.No.6722/2008
33. So in view of the discussion made above I am of
the opinion that since the plaintiffs have failed to prove that
the suit item No.1 property bearing Sy.No.141 measuring 20
guntas is the joint family property of themselves and the
defendants and since the plaintiffs have partly proved that
suit item No.2 property bearing Sy.No.93 measuring 16
guntas is the joint family property of themselves and the
defendants with cogent material evidence and since the
defendant No.1, 8, 9 and 10 to 15 have failed to prove that
during his life time Late Muthappa had bequathed the said
suit item No.2 property in favour of defendant No.8 & 9
through a registered Will dated 23.7.1980 with cogent
material evidence then the plaintiffs are partly entitled to the
relief of partition and separate possession over the suit item
No.2 property only and accordingly I have answered the issue
No.1 in the partly affirmative, issue No.2 in the negative,
issue No.3 in the partly affirmative, additional issue No.1 & 2
in the negative and additional issue No.3 in the affirmative.
34. Issue No.4:- In view of the discussion made on
issue No.1 to 3 and additional Issue No.1 to 3 and further
holding issue No.1 in the partly affirmative, issue No.2 in the
negative, issue No.3 in the partly affirmative, additional issue
32 OS.No.6722/2008
No.1 & 2 in the negative and additional issue No.3 in the
affirmative, I proceed to pass the following order:-
ORDER
The suit of the plaintiffs for the relief of partition & separate possession in respect of suit item No.2 property bearing Sy.No.93 measuring 16 guntas is hereby partly decreed.
And It is further decreed and declared that the plaintiff No.1(a) to 1(g) are jointly entitled to 1/5th share over the said suit item No.2 property.
And It is further decreed and declared that the defendant No.1 is also entitled to 1/5th share over the suit item No.2 property.
And It is further decreed and declared that the defendant No.2(a) to 2(e) & defendant No.3 to 7 are jointly entitled to 1/5th share over the suit item No.2 property.
And It is further decreed and declared that the defendant No.8 is entitled to 1/5th share over the suit item No.2 property.
And 33 OS.No.6722/2008 It is further decreed and declared that the defendant No.9(a) is entitled to 1/5th share over the suit item No.2 property.
And It is further decreed and directed the defendants to effect partition of suit item No.2 property by metes and bounds and allot 1/5th share in suit item No.2 property to the plaintiffs.
In view of the peculiar circumstances the parties are directed to bear their own costs.
Draw a preliminary decree accordingly.
(Dictated to the judgment writer on computer, corrected and then pronounced by me in the open court, on this the 2nd day of March, 2020).
(R. Ravi), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiffs:
P.W.1 Babu List of documents exhibited for plaintiffs:
Ex.P1 S.P.A.
Ex.P2 Family tree
Ex.P3 Certified copy of Order sheet in Case
No.45/58-59
Ex.P4 Certified copy of the endorsement
Ex.P5 Certified copy of Hissa Tippani
Ex.P6 Certified copy of Hissa Mojani Hakku
34 OS.No.6722/2008
Ex.P7 Certified copy of Form No.5
Ex.P8 to 11 RTCs
Ex.P12 Certified copy of Gift deed
Ex.P13 Certified copy of the Will dtd.23.7.1980
Ex.P14 Death certificate
Ex.P15 & 16 Certified copy of judgment & decree in
OS.No.10361/1980
List of witnesses examined for defendants:
DW.1 M.Krishnappa DW.2 Rathnamma DW.3 Abdul Mallik @ S.A.Malik DW.4 Susheela DW.5 Nanjappa DW.6 M.Narayan
List of documents exhibited for defendants:
Ex.D1 Certified copy of WS in OS.No.10361/80 Ex.D2 Certified copy of Partition deed dtd.25.3.2010 Ex.D3 & 4 2 Tax assessment register extracts Ex.D5 Tax receipt Ex.D6 Letter Ex.D7 4 Tax paid receipts Ex.D8 & 9 Certified copy of plaint & WS in OS.No.10361/80 Ex.D10 Certified copy of written statement Ex.D11 & 12 Certified copy of judgment & decree in RFA.No.1593/03 Ex.D13 Certified copy of plaint in OS.8306/03 Ex.D14 Certified copy of WS in OS.8306/03 Ex.D15 Certified copy of WS in OS.8306/03 35 OS.No.6722/2008 Ex.D16 Certified copy of issues in OS.8306/03 Ex.D17 Certified copy of order sheet in OS.No.8306/2003 Ex.D18 Certified copy of Agreement of sale dated 28.2.1983 Ex.D19 Certified copy of encumbrance certificate Ex.D20 4 Tax paid receipts Ex.D21 Certified copy of affidavit Ex.D22 Partition deed dtd.20.5.1982 Ex.D23 Certified copy of issues in OS.10361/80 Ex.D24 Copy of registered Will dtd.23.7.1980 Ex.D25 Certified copy of Will dtd.23.7.1980 Ex.D26 Death certificate Ex.D27 Copy of agreement of sale Ex.D28 Rental agreement dtd.31.1.2004 Ex.D29 Copy of rental agreement dtd.15.3.2002 Ex.D30 Original Will dtd.22.4.2016 Ex.D30(a to d) Signatures Ex.D31 Death certificate Ex.D32 Copy of final notice Ex.D33 BBMP notice dtd.21.7.2014 Ex.D34 Registered partition deed dtd.4.11.2016 Ex.D35 to 56 22 Tax paid receipts Ex.D57 Paper publication Ex.S1 Registered GPA Ex.S1(a to d) Signature Ex.S2 Election identity card.
XVII Addl. City Civil & Sessions Judge, Bengaluru.