Bangalore District Court
S/O.Late Sri.V.K.Janardhan vs S/O.Late Sri.V.K.Janardhan on 11 February, 2015
C.R.P. 67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgement in Suits
(R.P.91)
IN THE COURT OF THE XXII ADDL.CITY CIVIL JUDGE, BANGALORE.
PRESENT:-Sri.H.M.Nanjunda Swamy B.Com.,LL.B.,
XXII ADDL.CITY CIVIL JUDGE.
O.S.No.10382/2006
Dr.V.J.Arun Kumar,
Plaintiff S/o.late Sri.V.K.Janardhan,
Aged about 53 years,
Residing at B-3, Asst.Professor
Quarters, S.S.Institute of Medical
Sciences and Research, NH-4, By-Pass
Road, Davangere, Represented by his
power of attorney holder Smt.Nirupa
Arun Kumar, w/o.Dr.V.J.Arun Kumar,
aged about 48 years, Residing at
NO.11, Sarodhan, 4th main, 5th Cross,
Malleshwaram,
Bangalore-560 003.
(By Sri.H.S.Dwarakanath, Advocate)
Vs
Sri.V.J.Prem Kumar,
Defendant: S/o.late Sri.V.K.Janardhan,
Aged about 49 years,
Residing at No.116, Kelleway Ave,
Nicholls (Harcourt Hill), ACT 2913,
AUSTRALIA.
(By Sri.D.N.Manjunath, Advocate)
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O.S.No.10382/2006
Date of the institution of the suit
27.11.2006
Nature of the suit Partition and separate possession.
Date of the commencement of 22.10.2009
Recording of evidence
Date on which the Judgment 22.4.2010.
was pronounced.
Total Duration years months days.
3 4 25
(H.M.Nanjunda Swamy)
XXII Addl.City Civil Judge,
Bangalore.
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O.S.No.10382/2006
JUDGMENT
The suit is one for partition of half share in the suit properties at 'A' to 'E' schedule and for cost.
'E' schedule properties are movables, while 'A' to 'D' schedule properties are immovables.
2. There is no dispute about the existence of properties. There is also no dispute about the relationship between the plaintiff and defendant, who are brothers and children of late V.K.Janardhan and his wife late Smt.Sarojini Janardhan. According to plaintiff, 'D' schedule property, which is landed property, belonged to Smt. Sarojini, who admittedly died intestate and therefore, the plaintiff and defendant have equal right over the same.
3. Late.V.K.Janardhan died on 17.8.2006. According to the plaintiff, V.K.Janardhan died intestate, while according to defendant, he died testate, having executed Will dated 29.5.1995 and codicils dated 25.6.1997 and 31.3.2000, and all are registered. According to plaintiff, the plaintiff and defendant are the only children of Janardhan and his wife. Janardhan had filed O.S.No.212/64 against 4 O.S.No.10382/2006 his family members for partition and at that partition, he got property No.246, which is having new No.11 of Malleshwaram and also shop No.1 of Ranga Bazaar, which is in new No.78, as well one room in the first floor and four shops in the first floor at Nos.58 to 61 of Krishna Bazar. He had also got a shop in No.2 of Ranga Bazaar after the death of his mother. These properties allegedly constitute the properties of the Hindu un-divided family of plaintiff and defendant. However, Janardhan sold the property at Krishna Bazar during his life time. There was a partition between plaintiff, defendant and their father Janardhan in the year 1982, which was reduced into writing on 29.8.1988. At the same partition, property No.11 of Malleshwaram known as Jai Leela and another shop No.78 at 5th cross, Malleshwaram were allotted to late Janardhan. The defendant was allotted property No.14 at Rajajinagar, while plaintiff was allotted site No.166 of R.V.Extension, Bangalore. Apart from the said immovables, movable properties were also shared by them. As a result of the said partition, late Janardhan had become absolute owner of property No.11 known as Jai Leela and the shop bearing No.1 at No.78 and shop No.2 at No.78. Subsequently, Janardhan gifted portion of property No.11 to plaintiff - Arun Kumar under registered sale deed dated 7.10.1999 and it was made due to care, love and 5 O.S.No.10382/2006 affection towards Arun Kumar. It is also alleged by plaintiff that Janardhan was unhappy with defendant Prem Kumar and his wife, as they exploited Janardhan emotionally and had made persistent demands against the wishes of Janardhan. The defendant was unhappy because of the gift in favour of the plaintiff and therefore, Janardhan was isolated. Mother Sarojini died on 31.8.1995, leaving behind 'D' schedule property, while Janardhan died leaving behind 'A' to 'C' schedule property. 'D' schedule property also has a farm house. The plaintiff has allegedly constructed a new farm house of two bed rooms in 1998 by spending more than Rs.5,00,000/-, besides spending huge amount for the up-keeping and development of the said property. Due to the death of Sarojini and Janardhan, the plaintiff and defendant allegedly have half share each in the said property of Sarojini. The said couple has left behind huge movables, including jewels, which were kept in the locker of Janardhan. He has also left behind paintings, Santro car No.KA-04 Z 5763, Maruthi Van in No.KA 04 M 5673 and a bazaz scooter, besides locker at U.C.O bank, Malleshwaram. The said movables are described at 'E' schedule property. The defendant is the permanent resident of Australia and had come to Bangalore some time prior to the filing of the suit. The defendant leased eight shops at 'A' schedule property, without the 6 O.S.No.10382/2006 consent of plaintiff and had also appointed security in respect of the house at 'A' schedule property. This act is in violation of right of the plaintiff and therefore, the suit was filed. It is specifically stated that plaintiff was working at Davanageri and the defendant had taken advantage of the same and has so leased the property and engaged watchman. Hence, the suit was filed.
4. The defendant has appeared through his advocate and filed the written statement, admitting the relationship as well admitting the death of the parents. He pleads ignorance about filing of the suit for partition by father Janardhan in O.S.No.212/64. However, he admits entering into memorandum of partition dated 29.8.1988, as well the allotment of properties under the same. He admits that premises No.11, shop No.1 were allotted to the share of father Janardhan, besides ten tholas of gold and 2 kgs of silver and Standard car. The defendant has given the description of various properties given to him and the plaintiff with which I am not worried too much in this case and therefore, I am not reproducing the same.
5. There is no dispute that late Janardhan possessed suit items 'A' to 'C' and 'E', while mother possessed 'D' schedule property. The 7 O.S.No.10382/2006 defendant Prem Kumar contends that Janardhan had executed a registered Will on 25.9.1995 under which he has allocated the properties to plaintiff and defendant. He has also stated that Janardhan had also executed registered codicils on 25.6.1997 and 31.3.2000. The said testamentary documents were attested by an advocate Sri.D.S.Chandrashekar Rao. Under the registered Will dated 25.9.1995, Janardhan had bequeathed schedule 'A' to 'D' properties of the said Will according to his wish and under the said Will, the residential house Jai Leela, bearing No.11 and shop No.76, besides a small house in the 5th Cross of Malleshwaram, measuring 105 x 110', was involved. He had allotted the northern 105 x 30' in favour of plaintiff Arun Kumar and the southern portion, measuring 105 x 80' to defendant Prem Kumar. He had also bequeathed two shops - one in favour of the son of defendant namely, Karthik @ Vikas and the other shop to the daughter of plaintiff namely, Kum.Durga @ Thrishna. He had also distributed the fixed deposits and amount in bank accounts equally between the plaintiff and defendant. It is further stated that subsequent to execution of the Will, there were certain developments in the family. Janardhan had executed registered codicil dated 25.6.1997, effecting changes to the earlier registered Will dated 25.9.1995. He had formed a passage in 8 O.S.No.10382/2006 between the property allotted to plaintiff and defendant at property No.11 styled Jai Leela. Except the said change, there was no other amendment to the Will dated 25.9.1995. There were further developments subsequent to execution of registered codicil dated 25.6.1997 and accordingly, Janardhan had executed another registered codicil dated 31.3.2000, effecting certain changes to the Will dated 25.9.1995. There was execution of registered gift deed in favour of plaintiff on 7.10.1999, which resulted in the execution of this codicil dated 31.3.2000. He wanted to clear terms pertaining to his disposition and accordingly, executed registered codicil dated 31.3.2000. During the said codicil, he had bequeathed property No.76 of Malleshwaram, measuring 110 x 75' consisting of a bungalow and 8 shops to the defendant. The defendant had attended the funeral of his father with his wife and the expenses were shared by plaintiff and defendant. The plaintiff and the defendant with their wives and the sister of V.K.Janardhan had opened the safe in the house and found the testamentary documents and other documents. The copies of the same were given to the plaintiff, while originals were given to the defendant. The plaintiff though aware of such Will and codicils of father, had suppressed the same in filing the present suit. During 1996 Janardhan himself had handed over sealed envelops, containing 9 O.S.No.10382/2006 the Will to each of the plaintiff and defendant with a direction to open after his demise. Consequently, in pursuant to the testamentary disposition of Janardhan, the defendant Prem Kumar has become the absolute owner of 'A' schedule property in the plaint, while his son has become the owner of 'B' schedule property and therefore, the plaintiff is not entitled for any share in the same. In view of the Will, the daughter of plaintiff has become the owner of 'C' schedule property and therefore, also the plaintiff is not entitled for a share in the same.
6. The defendant further alleged that the mother Sarojini died intestate on 21.8.1995, leaving behind her widower and plaintiff and defendant as legal heirs and therefore, they had succeeded to the estate of Smt.Sarojini at 'D' schedule property equally. Subsequent to death of Sarojini , in view of the disposition by Janardhan, the plaintiff and defendant are equally entitled to a share in 'D' schedule property. That the plaintiff has been taking care of the 'D' schedule property without accounting for profits. So far as 'E' schedule property, locker is to be opened and jewels need to be checked. It is also stated that plaintiff and his wife did not co-operate in opening the locker and the plaintiff and his wife, being in possession of house 10 O.S.No.10382/2006 No.11, adjacent to 'A' schedule property, have filed false suit. Hence, it is prayed to dismiss the suit.
7. This court had framed the following issues.
1.Whether the plaintiff proves the existence of 'E' schedule property?
2.Whether the plaintiff proves he has ½ share in 'A' to 'E' schedule properties?
3.Whether the defendant proves that there was already a partition as per memorandum dated 29.8.1988?
4.Whether the defendant proves that late V.K.Janardhan has executed registered Will dated 29.5.1995, registered codicil dated 25.6.1997 and 31.3.2000 out of free will and sound mind?
5.Whether the defendant proves that 'D' schedule property belonged to Smt.Sarojini Janardhan and she died intestate?
6.What decree or order?
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8. However, in view of the admitted facts, by order dated 17.9.2009, Issue Nos.3 & 5 have been deleted and the issues are renumbered and therefore, we have now only Issue Nos.1 to 4 on record, which are as follows:
1.Whether the plaintiff proves the existence of 'E' schedule property?
2.Whether the plaintiff proves he has ½ share in 'A' to 'E' schedule properties?
3.Whether the defendant proves that late V.K.Janardhan has executed registered Will dated 29.5.1995, registered codicil dated 25.6.1997 and 31.3.2000 out of free will and sound mind?
4.What decree or order?
9. For the proof of the case, the power of attorney holder of plaintiff was examined as P.W.1 and Ext.P.1 to Ext.P.20 were marked.
For defendant, he was examined along with two witnesses and Ext.D.1 to Ext.D.4 were marked. With that, the parties have closed their sides.
10. Heard arguments and perused records.
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11. It was argued for plaintiff that there is no dispute about the relationship and nature of the properties and there is no dispute about 'D' & 'E' schedule properties and therefore, suit has to be decreed directly about the admitted properties. The defendant has failed to prove the execution of Will by late Janardhan and also the codicils by him, in accordance with law and in view of the same, the defence is to be ignored and suit has to be decreed. It was also argued that when the Will itself is not proved, the codicils, even if proved, is of no consequences. Per contra, it was argued that attending circumstances should be examined for the proof of the Will. The defendant has placed the best possible evidence on record. The proof of codicil amounts to proof of the Will also. The non-examination of plaintiff before the court is fatal and particularly when he had identified Janardhan before the Sub-Registrar at the time of registration of a codicil. The Will and codicils are acted upon and therefore, the suit has to be dismissed. This was again repelled in the reply.
12. Let me consider the various contentions raised by parties during the course of my judgment.
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13. In view of the evidence and the materials on record, my findings are:
Issue No.1 & In the affirmative.Issue No. 2
Issue No. 3: In the negative.
Issue No.4: As per final order for the following:
REASONS
14. Issue No.1:-There is no dispute about the existence of 'E' schedule property. An inventory was also made at the time of institution of the suit. It was fairly conceded by the counsel for the defendant that there is no dispute about 'D' & 'E' schedule properties and the dispute is only pertaining to the 'A' to 'C' schedule properties. Consequently, I hold this Issue in the affirmative without any further discussion.
15. Issue No. 3:-This is the pivotal issue in the case. This decides the fate of the case.
16. How a Will is to be proved is by now more than well settled. Right from the decision of Hon'ble Supreme Court reported in A.I.R 14 O.S.No.10382/2006 1959 S.C. 444 in Venkatachalaiah Iyengar .vs. Thimmajamma up to I.L.R.2008 Karnataka,Page 2115, we have case law on the point. Before adverting to some of the important aspects of the Will and proof of a codicil, about which there was a huge canvass in this case, let me meet some ancillary argument raised in the case, particularly for the defence.
17. Though in the plaint it is stated by the plaintiff that he has developed the 'D' schedule property by constructing a guest house etc., no claim is made in the relief column of the plaint, much less it is assessed to separate court fee . There is no evidence let in, in that behalf. As a result, I can simply ignore the said plea of improvement made by the plaintiff. This, I am doing as a part of my job, despite no canvass in that regard by both the parties, only to answer a plea raised in the case.
18. There was also a canvass that the plaintiff has not been personally examined in this case, who has been represented by his wife, who is the power of attorney holder and examined as P.W.1 and there are no reasons for execution of such power of attorney and therefore, the evidence of P.W.1 is of no avail to plaintiff and on this 15 O.S.No.10382/2006 score alone, the suit has to be dismissed. It was also argued that for what ever the acts personally done by plaintiff, he alone is competent to depose and not his power of attorney holder.
19. There could be little doubt that a fact, which is personal to the party, should be testified by him and not by his power of attorney holder. However, when power of attorney holder has some facts in his own knowledge or has got the personal acknowledgment, then, there is no prohibition under law for a power of attorney holder to testify on behalf of the party to the suit. The reliance on A.I.R 2005 S.C.439 by defendant in the famous case of Janaky that a power of attorney holder cannot depose about the facts personally known to the party to the suit, is of no avail in the present case. The relationship between the parties is admitted. It is for the defendant to establish the valid execution of a Will and two codicils at Ext.D.1 to Ext.D.3 and defeat the case of the plaintiff. The learned counsel for the plaintiff was justified in replying that there is no need to lead any evidence by the plaintiff, in view of burden of proof of Will on the defendant. Besides, he has also relied upon I.L.R 2006 Karnataka, 3129 in which the Hon'ble High Court has graphically narrated to what extent a power of 16 O.S.No.10382/2006 attorney holder could depose before the court. It is very clearly held at Head Note-B, under Sec.118 of Indian Evidence Act, that a power of attorney holder is a competent witness and his evidence cannot be refused on the ground that the party to the suit is not examined. It is a different aspect as to what is the quality of evidence that a power of attorney holder has given before the court. But, nevertheless, there could be no rejection of evidence of power of attorney holder. In this case, I am totally satisfied that non-examination of plaintiff is not fatal, particularly when the burden of proof is on the defendant only.
20. There was also a canvass that no rebuttal evidence is led by the plaintiff to dis-prove the Will and codicils relied by the defendant and therefore, the evidence led by the defendant has to be accepted. I am afraid that such a canvass is not available to the defendant. Question of rebuttal evidence is the choice of the plaintiff and only when the plaintiff feels that the defendant has proved an issue, which is on the defendant, the question of plaintiff leading any rebuttal evidence arises and not otherwise. There is no law, which is brought to my notice that in the absence of rebuttal evidence, 17 O.S.No.10382/2006 the evidence led by defendant becomes final and has to be accepted by the court. Therefore, the said canvass is only to be rejected and rejected.
21. There was also a canvass that when P.W.1 is not having any personal knowledge of the Will, the evidence of defendant on proof of the Will, has to be accepted. Again, I am unable to concede unfortunately, to the said canvass. When the burden of proof is squarely on the defendant to prove the Will, the negative aspect can not come into his aid. Whether P.W.1 has or has no knowledge, makes no difference for the proof of the Will, in view of Sec.68 of Indian Evidence Act coupled with Sec.63 of Indian Succession Act. This is also the law in I.L.R 2008 Karnataka 2115. Therefore, the said canvass is also not accepted by me.
22. There was another canvass that there is no rejoinder filed, challenging the Will and codicils, pleaded by the defendant and therefore, it amounts to admission. Again I am unable to concede to the said canvass at all. It is not mandated by law that there should be a counter to the written statement filed by the defendant or else such non-filing of the counter, amounts to an admission. Again no 18 O.S.No.10382/2006 any law or commentary in any text is brought to my notice in that behalf. There is no need for filing any counter to the written statement and non-filing of counter to the written statement, never amounts to an admission, is my clear opinion.
23. There was also a canvass that a gift was executed on 7.10.1999 as per Ext.P.4 by Janardhan in favour of plaintiff and plaintiff had put up construction on the gifted property even prior to the said gift came into being and therefore, the said gift cannot be accepted. First of all, there is no relief sought either by the plaintiff or by the defendant by raising any counter claim about the said gift deed. There is nothing, which prevents a person from orally permitting another to put up construction on the property of other and later ratify the same by execution of a gift deed. Therefore, the said canvass also fails.
24. There was a canvass that rents have been received by the daughter of plaintiff and son of defendant on the basis of the Will and therefore, by such conduct, Will is proved. I am afraid such a canvass is too imaginary. If rents are collected by the major children of plaintiff and defendant, the same does not amount to proof of the 19 O.S.No.10382/2006 Will. Proof of the Will is required to be within the para meters of Sec.68 of Evidence Act r/w Sec.63 of Indian Succession Act and not otherwise.
25. It was also argued for defendant that the registration of Will and codicils is another circumstance, which supports the execution of the Will. I am unable to comprehend again the said canvass. There is a catena of decisions in that behalf, which say that registration of a Will does not amount to proof of the Will. In that behalf the plaintiff has relied upon (1) 1994 (5) SCC 135; (2) I.L.R 2008 Karnataka, 2115 at head note B. There are other citations and it is un-necessary to reproduce them here. Therefore, registration of the Will is of no avail to the defendant.
26. There was also another canvass for the defendant that no suspicious circumstances are either pleaded or proved in the case by the plaintiff, surrounding the execution of Ext.D.1 - Will and codicils at Ext.D.2 and Ext.D.3 and therefore, the Will has to be accepted. Again, it is a fascinating argument, but without substance. Question of examination of suspicious circumstances surfaces only if due and valid execution of the Will and codicils, as required by law, is 20 O.S.No.10382/2006 established and not otherwise, as rightly argued for plaintiff. Therefore, the only question is whether defendant is able to establish valid execution of the documents, he is relying upon.
27. The above said answers, now take me to the pivotal controversy about proof or otherwise of a Will and codicils at Ext.D.1 to Ext.D.3 in the case.
28. It was argued for plaintiff that the defendant has utterly failed to prove valid execution of Will at Ext.D.1 by placing reliable evidence and the evidence of D.W.3.Dr.Ramappa, the only attesting witness examined in the case, has not proved the Will at Ext.D.1. That the said witness is honest and truthful and his evidence does not prove the valid execution of Will at Ext.D.1 by late Janardhan. It was argued for defendant that the scribe - advocate Chandrashekar Rao, who was also an attesting witness to all these documents, is no more and could not be examined. D.W.3.Ramappa is very honest in his evidence and his evidence has established Ext.D.1. There was also a canvass that Ext.D.2 has been proved with the evidence of D.W.2.Ramesh, attesting witness to Ext.D.2 and that Ext.D.3 could not be proved by examining Chandrashekar Rao, advocate, who is no 21 O.S.No.10382/2006 more and the other attesting witness - Mr.Kuddus is hostile to the defendant. That with the proof of Ext.D.2 - the Will at Ext.D.1 has been proved as there was only a minor change introduced by Janardhan in Ext.D.2 and Ext.D.3 to the original Will at Ext.D.1. Per contra, it was argued for plaintiff that there is no proof of Ext.D.1 and as a result, Ext.D.2 and Ext.D.3 - codicils will have to be ignored by the court.
29. The defendant has also made a canvass that the attending circumstances would be a guiding factor in proof of a Will and inherent probabilities and improbabilities will have to be looked into by the court. Reliance is placed on A.I.R 1990 S.C.396 at Head Note B. However, that does not seem to be the law. If valid execution of the Will is proved, then the question of considering suspicious circumstances arises and then court has to consider the inherent improbabilities, surrounding the Will and not otherwise.
30. The defendant has relied upon A.I.R 2002 S.C.637 in which it is held that merely because a rank trespasser disputes the Will, the court cannot reject the Will on suspicion and conjectures. The said law is inapplicable, as the plaintiff in the case is not a rank trespasser, but the brother of the defendant only.
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31. The defendant has also relied upon I.L.R 2006 Karnataka 3129 in which the Hon'ble High Court has explained the difference between oral and direct evidence, the competency of a power of attorney holder to depose in the case and what is primary and secondary evidence. That is a well settled and well laid proposition of law, which can entertain any quarrel.
32. The plaintiff has relied upon many citations, which deal with what is valid attestation and what is due execution of a Will. He has relied upon A.I.R 1995 S.C.W 4631, which deals with the attesting witness either personally viewing the executant, subscribing his signature to the Will or having a personal acknowledgment from the executant before he attests the Will. To the same effect is the decision in 1994 (5) S.C.C 135. In A.I.R 2003 S.C 761, it is held that mere proof of signature of testator on the Will, is not proof of the Will. In I.L.R 2008 Karnataka 2115, the Hon'ble High Court has graphically laid what amounts to attestation and how a Will is to be proved. It has laid the panchashala for proof of the Will. The plaintiff has also relied upon 2007 (9) S.C.C.728; (2) A.I.R 1977 S.C.63; 23
O.S.No.10382/2006 (3) A.I.R 2007 S.C.311; (4) A.I.R 2009 S.C.1389; (5) 2009 (3) S.C.A.L.E 508; (6) 2009 (4) S.C.C 780; (7) A.I.R 1955 S.C.347; (8) A.I.R 1972 S.C.1471 and (9) I.L.R 2008 Karnataka at Page -87. It is un-necessary for me to go into details of these decisions, which are on the well established principle as to how a Will is to be proved. However, the last decision is an important one.
33. The Hon'ble High Court in I.L.R 2008 Karnataka at page 87 in S.Jagadeesh .vs. Dr.S.Kumar Swamy, dead by legal representatives and others has held under Sec.63 R/W Sec.70 of Indian Succession Act that even the revocation of a Will or codicil is to be established by calling one of the attesting witnesses when it has been attested by two or more witnesses and also by proving the sound state of mind of the executant and then only the said Will or revocation of the Will takes effect.
34. There is little doubt that defendant has to establish the valid execution of Ext.D.1 - Will and not only that the valid execution of Ext.D.2 and Ext.D.3 - codicils, in accordance with law. 24
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35. I am of the considered opinion that if the original Will is not established in accordance with law, then question of considering codicils does not arise at all. When primary aspect of a matter is not established, the other factors cannot be accepted by the court at all.
36. For the proof of Ext.D.1 - Will, only D.W3 is examined in the case. He has neither stated, as conceded by the defendant, that Janardhan executed Ext.D.1 - Will in his presence, nor that he gave the personal acknowledgment of his executing Ext.D.1 - Will to D.W.3. Both the advocates have held D.W.3 in the high esteem and urged this court to accept his evidence as truthful. In view of the same, it is manifest that D.W.3.Dr.Ramappa is a truthful witness, but he has not satisfied the requirement of valid attestation of the Will by late Janardhan. As a result, Ext.D.1 - Will is not proved at all. In view of the same, consideration of Ext.D.2 and Ext.D.3 - codicils is also out of consideration. However, I make an attempt to consider them also in order to avoid any ultra canvass for non-examination of these two documents in appeal. Suffice to conclude that Ext.D.1 has not been proved to have been validly executed by late Janardhan with the evidence of D.W.3.
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37. With the execution of Ext.D.3 - codicil on 31.3.2000, the execution of Ext.D.2 - codicil dated 25.6.1997, has to be held as eclipsing Ext.D.2 by Ext.D.3, as the last of the Will survives. If really Janardhan had executed any Will, if the version of defendant is to be accepted, then Ext.D.3 amounts to be the last Will of Janardhan. In fact, Ext.D.3 amounts to revocation of Ext.D.2 - codicil and Ext.D.1 - Will, in view of the I.L.R 2008 Karnataka at Page
- 87.
38. No doubt, D.W.2 has supported execution of codicil at Ext.D.2 by late Janardhan. However, he seems to be a highly interested witness. Unfortunately, the other attestor - an advocate Chandrashekar Rao, is no more. The evidence of D.W.2, to say the least, is very shaky. His cross-examination reveals that he does not know before whom he had sworn to the affidavit and he says he never appeared before the notary, who has attested his affidavit evidence. The evidence of such a witness, I am of the opinion, is very difficult to accept. On a reading of evidence of D.W.2, it is doubtful that he got his affidavit evidence prepared and sworn to before the Notary, before it was submitted to the court. Besides, he is 26 O.S.No.10382/2006 the close friend of defendant. He has admitted that he had even helped defendant in tracing the F.D receipts and other documents. He seems to be a highly interested witness. Anyway, Ext.D.1 itself has not been proved in accordance with law. The evidence of D.W.2 on Ext.D.2 is of no consequence at all. Even otherwise, when Dr.Ramappa was close friend of Janardhan admittedly, why he chose D.W.2.Ramesh as an attesting witness to Ext.D.2, also raises a serious doubt. A perusal of Ext.D.2 would show that as on 25.6.1997, the date of Ext.D.2, Janardhan was aged 69 years. D.W.2.Ramesh was aged about 53 years, as on his evidence on 15.12.2009. Obviously, Ramesh was aged 41 years on the date of Ext.D.2. It is doubtful that Janardhan has chosen Ramesh as his attesting witness to Ext.D.2. There is no any explanation offered by Ramesh in that behalf, though he attempted to say that Janardhan used to visit his office to submit income tax returns, he being a chartered accountant. However, there is no material placed in that behalf to show that Janardhan ever submitted any returns through D.W.2. Suffice to say, with these circumstances, even Ext.D.2 has not been proved by the defendant, as required under Sec.63 of Indian Succession Act read with Sec.68 of Indian Evidence Act.
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39. Be it so. Ext.D.3 is allegedly the last codicil of late Janardhan. It is dated 31.3.2000. Chandrashekar Rao was the scribe and attestor, who is admittedly no more. Another witness was Mr.Kuddus. Neither in the written statement nor in the evidence of defendant examined as D.W.1, we have any evidence to show that at any point of time, Mr.Kuddus was hostile to defendant Prem Kumar. It is admitted that Mr.Kuddus is alive. Without any cause or reason, the said attesting available witness has not been examined. I have to draw an adverse inference in that behalf for non-examination of Kuddus under Sec.114 of Indian Evidence Act. There was no attempt to secure the presence of Kuddus before the court to elicit anything about Ext.D.3. The only inference I can draw is that Ext.D.3 was not executed by Janardhan or that it was not voluntarily executed by Janardhan and therefore, Kuddus has not been examined before the court, though he was available.
40. It is also relevant to note that in Ext.D.1 to Ext.D.3, there is a very mechanical mentioning of fact as follows:-
"Signed by testator and acknowledged by him to be the second codicil, in the presence of us, present at the same time, who at his request, in 28 O.S.No.10382/2006 his presence and in the presence of each other, have hereto subscribed our names as witneses."
41. The only modification in Ext.D.1 and Ext.D.2 is reference to the Will and first codicil. D.W.3.Dr.Ramappa's evidence shows that such mentioning is wrong. So far as Ext.D.3 also, the same inference could be drawn for non-examination of Kuddus.
42. Under the above circumstances, I am of the clear opinion that when Ext.D.1 to Ext.D.3 are not proved, the case of the defendant cannot be accepted at all. Therefore, I hold that defendant has failed to prove the valid execution of Ext.D.1 to Ext.D.3, as required by law and as required per ratio in I.L.R 2008 Karnataka at page
- 87. Consequently, I hold this Issue in the negative.
43. Issue No. 2:-In view of my findings above, it is obvious that the plaintiff is entitled for half share in suit 'A' to 'D' schedule properties and so far as 'E' schedule property, as reported by an advocate, who has prepared the inventory about existence of movables. Consequently, I hold this Issue in the affirmative. 29
O.S.No.10382/2006
44. Issue No.4:-In view of my findings above, I proceed to pass the following:
ORDER The suit of the plaintiff is partly decreed, with cost.
It is held that plaintiff is entitled for half share in suit 'A' to 'D' schedule properties and also entitled for enquiry into mesne profits.
It is also held that the plaintiff is entitled for half share in movables, as reported in the inventory.
There shall be a partition and separate
possession of the said share of plaintiff and
handed over to him.
Advocates fee is fixed at Rs.2,000/-.
Draw preliminary decree accordingly.
Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this the 22nd day of April, 2010.
(H.M.Nanjunda Swamy) XXII Addl. City Civil Judge, Bangalore.30
O.S.No.10382/2006 Appendix Plaintiff's Witness:
1. P.W.1 Nirupa Arun Kumar.
Defendant's Witnesses:
1. D.W.1 V.J.Premkumar.
2. D.W.2 Ramesh.
3. D.W.3 Ramappa.
Plaintiff's Exhibits:
1. Ext.P.1 G.P.A.
2. Ext.P.2 Death certificate.
3. Ext.P.3 Deed of partition.
4. Ext.P.4 Gift deed.
5. Ext.P.5 To Credit bills.
Ext.P.8
6. Ext.P.9 To Dividend and interest warrants.
Ext.P.20 Defendant's Exhibits:
1. Ext.D.1 Original Will.
2. Ext.D.2 & Codicils dated 25.6.97 and 31.3.2000 Ext.D.3
3. Ext.D.4 G.P.A (H.M.Nanjunda Swamy) XXII Addl. City Civil Judge, Bangalore.31
O.S.No.10382/2006 22.4.2010 P-H.S.D D-DNM Judgment pronounced in open court.
(Vide separate Judgment) The suit of the plaintiff is partly decreed, with cost.
It is held that plaintiff is entitled for half share in suit 'A' to 'D' schedule properties and also entitled for enquiry into mesne profits.
It is also held that the plaintiff is entitled for half share in movables, as reported in the inventory.
There shall be a partition and separate
possession of the said share of plaintiff and
handed over to him.
Advocates fee is fixed at Rs.2,000/-.
Draw preliminary decree accordingly.
XXII Addl.City Civil Judge.