Bangalore District Court
Is Now Working As A Clerk In Indian Postal ... vs No.1 And 3 Are The Sisters. He Had A ... on 16 September, 2019
Government of TITLE SHEET FOR JUDGEMENTS IN SUITS
Karnataka
Form No.9
[Civil] Title Sheet IN THE COURT OF V ADDL.CITY CIVIL COURT AT
for Judgement
in Suits BENGALURU
Present: Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 16th day of September, 2019.
O.S.1884/2014
BETWEEN
Sri. Narasimha Murthy,
S/o A. Subbanna,
Aged about 48 years,
R/at No.84, 11th Main Road,
Venkatappa Layout,
Kerekodi Hoskerehalli,
Banashankari 3rd stage,
Bengaluru South,
Bengaluru. Plaintiff
( By Sri. KNN Adv.,)
AND
1.Smt. Shobha,
W/o Sri. Balaji,
Aged about 45 years,
R/at No.38, Ground Floor,
Mallathalli village,
YPR Hobli,
Bengaluru.
2. Smt. Lakshmi.D.
W/o Late Sri. Manjunath.S.
Aged about 40 years
2a. Ms. Sadhana,
D/o Late Sri. Manjunath.S.
Aged about 19 years
2b. Ms. Spandana
D/o Late Sri. Manjunath.S.
Aged about 10 years
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O.S. No.1884/2014
{2b is minor, Rep.
By mother and natural guardian
Smt. Lakshmi.D}
Defendant No.2, 2a and 2b are
R/at No.38, I Floor,
Mallathahalli village,
YPR Hobli,
Bengaluru.
3. Smt. S. Uma,
W/o Nagendra Kumar,
Aged about 42 years,
R/at Vartur,
Opp. To Chowdeshwari Temple,
Bengaluru.
Defendants
( D.1 &3 by Sri. SVR
D.2, 2(a)&(b) by Sri. HM advocate)
Date of institution of the Suit : 06/03/2014
Partition, Declaration and
Nature of the Suit :
permanent injunction
Date of commencement of
: 10/03/2018
recording of evidence
Date on which the Judgment was
: 16/09/2019
pronounced
Year Months Days
Total Duration :
05 06 10
[ C.D. KAROSHI ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
-: J U D G E M E N T :-
This is a suit filed by the plaintiff against the defendants for the
relief of partition, declaration and permanent injunction along with
cost of the suit.
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O.S. No.1884/2014
2. The brief facts are as under :
That, plaintiff is the first son of Late Sri. A. Subbanna. The
plaintiff is now working as a clerk in Indian Postal Department.
Defendant No.1 and 3 are the sisters. He had a younger brother by
name Sri. Manjunath who is no more and represented by his wife
defendant No.2 and children. Further it is averred that, plaintiff's
father Sri. A. Subbanna was working as school teacher in a
government school and he was the absolute owner of the house
property bearing municipal No.38 constructed by him out of his own
income on a site at Mallathalli village, Yeshwanthpura hobli by virtue
of registered sale deed dated 18/10/2001 which is the schedule
property. But, plaintiff also contributed Rs.70,000/- in constructing
the suit schedule property by availing the loan from the post office
employees society. His father died intestate on 15/04/2008 and his
wife Smt. S. Nagarathnamma succeeded the suit schedule property
who was in the joint possession and enjoyment of the same with
plaintiff and defendants. The plaintiff being the first son is taking care
and maintaining the schedule property by paying utility bills and
property tax and also shouldered the burden of getting his sisters
marriage. This being the fact, his mother Smt. S. Nagarathnamma
died on 21/01/2014, he performed funeral and last rites of his
parents out of his own funds. Thereafter he started to reside in a
separate house just close to the schedule property, but after three
months of the death of his mother, when he proposed towards his
share in the schedule property, he came to know that, his mother
died leaving behind a registered Will dated 27/09/2013 wherein she
has divided the schedule property between the defendants 1 to 3
floor wise stating that ground floor will go to first defendant, the first
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O.S. No.1884/2014
floor to the 2nd defendant and her minor daughters, the second floor
to the 3rd defendant. Further stated that her first son i.e. the plaintiff is
currently working in Indian Postal Department, he is well educated
and well settled in his life, as such, he is not entitled for any share in
the suit schedule property. Further it is averred that, his mother
Smt. Nagarathnamma had lot of gold ornaments i.e. two rows gold
chain, four gold bangles, pearl chain, single row chain and two finger
rings, four sets of ear rings as mentioned in the schedule 'B' of the
plaint. But, all the gold ornaments are in the care and custody of
defendants. Late Sri. Subbanna had got monetary benefits by
way of P.F and gratuity when he retired from the service and given
the same to Smt. Nagarathnamma. Late A. Subbanna being the
father of the plaintiff was the absolute owner of the schedule property
had only right to execute Will in respect of the schedule property
along with schedule 'B' property but he died intestate and Smt.
Nagarathanamma being the wife succeeded the same as legally
wedded wife. But, she had no right to make any Will in respect of
movable and immovable property left by the late father
Sri. A. Subbanna. The defendants in collusion with each other had
deceitfully got the Will registered from their mother, as such, the
same is void and not binding on the plaintiff. Now the defendants
are making efforts to sell the suit schedule properties. Therefore,
plaintiff has filed the above numbered suit and prayed for decreeing
the suit.
3. The defendants appeared through their respective
counsels and filed written statement. It is the written statement that,
filed by defendant No.1 and 3 that, suit of the plaintiff is not
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O.S. No.1884/2014
maintainable ei not binding ther in law or on facts and liable to be
dismissed with cost. The plaintiff has no right or locus standi to seek
for partition in the schedule property and to declare the registered
Will dated 27/09/2013 as not binding on him. The plaintiff has
suppressed the true and material facts and not come to the court
with clean hands. There is no joint family status between the plaintiff
and defendants. Without prejudice to the above the averments made
in para 2 to 4 of the plaint are true, but it is false to say that plaintiff
contributed Rs.70,000/- for construction of the schedule property by
taking loan from the post office employees society. Further it is
denied that, late Subbanna died in testate, but during his life time
executed un registered Will dated 15/01/2008 bequeathing the
schedule property in favour of his wife Smt. Nagarathnamma. It is
true that, after the demise of A. Subbanna his wife Smt.
Nagarathnamma succeeded the schedule property as a legally
wedded wife and also as beneficiary of the said Will as an absolute
owner. It is denied that plaintiff being the first son is taking care and
maintaining entire schedule property and also shouldered the burden
of getting his three sisters marriage. The plaintiff be put to strict
proof of the same. Further it is false to say that after death of Smt.
Nagarathanamma, plaintiff proposed the defendants to share the
schedule properties, but, it is true that Smt. Nagarathanamma has
left the registered Will dated 27/09/2013 and bequeathed the
property floor wise to the defendants. It is also true that, plaintiff is
working in Indian Postal department and well settled in his life. The
averments made in para 6 of the plaint regarding gold ornaments
held by the late Nagarathnamma is denied, but what ever jewelry left
by her were the Sthridhana properties and equally divided among the
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O.S. No.1884/2014
defendants 1 and 3. Further, it is true that, on retirement from service
A. Subbanna had got monetary benefits and utilized the same for
construction of the building on the property and for his medical
expenses. The late Subbanna being the absolute owner of the
schedule property had executed an unregistered Will dated
15/01/2008 and bequeathed schedule 'A' property in favour of his
wife Smt. Nagarathanamma, accordingly after his demise his wife
Nagarathanamma became the absolute owner of the schedule 'A'
property by virtue of the said Will and in turn she executed registered
Will dated 27/09/2013. The plaintiff be put to strict proof of the
averments made in para 8 to 10 of the plaint. No cause of action
arose to file the suit. Court fee paid is not proper. The schedule
properties are not available for partition. On these grounds prayed
for dismissal of the suit with costs.
4. It is contended in the written statement filed by defendant
No.2, 2(a)&(b) that, the suit filed by the plaintiff is totally false and
not maintainable in the eye of law. The plaintiff has filed the suit with
sole intention to harass the defendants. The plaintiff has not come to
the court with clean hands. No cause of action arose to file the suit.
The plaintiff is not in possession of the schedule property, as such,
court fee paid is insufficient. The suit is barred by limitation as the
plaintiff's father died on 15/04/2008 and mother succeeded the
schedule property, but suit is filed in the year 2014. Further though
these defendants admits that plaintiff's father was working as teacher
in government school and was the absolute owner of the schedule
property by virtue of the sale deed dated 18/10/2001 out of his own
earnings, but 1st floor and 2nd floor was constructed on the schedule
7
O.S. No.1884/2014
property by the late husband of defendant No.2 out of his own funds
and no one including the plaintiff has contributed as alleged in the
plaint. Further it is true that, mother of the plaintiff succeeded the
schedule property as the absolute owner after the death of her
husband, but it is false to say that plaintiff being the elder son of late
Subbanna is taking care and maintaining the schedule property. The
plaintiff has not produced supporting documents. On the other hand
defendants 2, 2(a) &(b) have contributed the amount for performing
funeral rights of the plaintiff's father. Further the date of death of
plaintiff's father and mother is admitted. Further, it is true that, late
Nagarathanamma has left behind the registered Will dated
27/09/2013 and bequeathed the property to the defendants. It is
also not disputed that, plaintiff is working in postal department and
well settled. The averments regarding the fact that,
Nagarathanamma had lot of gold ornaments as per the description in
the schedule 'B' of the plaint and father of the plaintiff had got
monetary benefits are denied as false and baseless. The plaintiff be
put to strict proof of the same. The plaintiff is not entitled to the relief
sought for by him and the suit is liable to be dismissed as not
maintainable with exemplary cost.
5. Basing on above narrated pleadings my predecessor in office
has framed the following issues.
1) Whether the plaintiff proves that the suit
schedule properties are the joint family
properties of plaintiff and defendants?
2) Whether the defendant proves that the suit
of the plaintiff is not maintainable?
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O.S. No.1884/2014
3) Whether the defendant proves that court
fee paid is insufficient?
4) Whether the suit of the plaintiff is barred by
time?
5) Whether the defendant proves that this
court has no jurisdiction to try this suit?
6) Whether the plaintiff is entitled for the relief
as sought for?
7) What order or decree?
6. In order to prove his case, the t plaintiff examined himself
as PW.1 and got marked the documents at Ex.P1 to P8. On the
other hand the defendant No.2 examined herself as DW.1, no
documents marked on her behalf. Defendant No.3 examined herself
as D.W.2 and got marked the documents at Ex.D1 to Ex.D10. The
defendants also examined two witnesses as D.W.3 and 4.
7. Heard and perused the written arguments along with
material on record.
8. My findings on the above issues are as under.
Issue No.1 Partly in the Affirmative.
Issue No.2 In the negative.
Issue No.3 In the negative.
Issue No.4 In the negative
Issue No.5 In the negative
Issue No.6 Partly in the Affirmative.
Issue No.7 As per final orders for the following,
9
O.S. No.1884/2014
-: R E A S O N S :-
9. Issue No.1 and 2 :- I take these issues together for my
discussion as the facts overlap and for the sake of convenience.
10. It is worth to note that the plaintiff has filed the above
numbered suit for the relief of partition, declaration & permanent
injunction in respect of the suit schedule properties. In this regard,
plaintiff filed an affidavit in lieu of the oral evidence and examined
himself as P.W. 1 stating that, his father late A. Subbanna was
working as teacher in a government school and retired from the
service. Further states that during his life time he has purchased the
schedule property and constructed a house out of his own earnings,
but he has also contributed an amount of Rs.70,000/-. Further states
that, his father died in testate on 15/04/2008, accordingly his mother
Smt. Nagarathnamma succeeded the property as legally wedded
wife. Further states that, his mother also died on 21/01/2014, as
such, he made a separate residence close to the schedule property,
but when he demanded his legal share in the schedule property 'A'
and 'B' property the defendants revealed the fact that said
Nagarathanamma died leaving behind a registered Will dated
27/09/2013 and thereby bequeathed the schedule property to the
defendants floor wise and also she had gold ornaments, but he has
been excluded for the reason that, he is working in Postal
department and well settled in his life. Further states that his father
was the absolute owner of the schedule property only he had right to
execute the Will, but he died intestate, as such his mother had no
right to make any Will in respect of movable or immovable property
left by his father and alleged Will is not binding, as such, he is
10
O.S. No.1884/2014
entitled for 1/4th share in entire suit schedule property. In order to
support his oral testimony, P.W. 1 got marked documents at Ex.P.1 to
P.8.
11. During the course of cross-examination of P.W. 1 it has
been elicited that, his father was a retired teacher, purchased the
schedule site and constructed a house in the schedule 'A' property
out of his earnings. Further it has been elicited that he joined postal
service in the year 1991 and drawing monthly salary of Rs.1,200/-
and now he is getting monthly salary of Rs.40,000/-. Further though
he states that, he has also contributed sum of Rs.70,000/- by
availing loan from postal employees co-operative society for
construction of the house in schedule 'A' property, but he admits that,
he has not produced supporting documents before this court. Further
admits that, prior to construction of the house in question they were
residing at Bapuji Nagar on rent basis. Further admits that he has not
contributed any financial help to purchase gold ornaments by his
father and himself and his father have performed marriage of his two
sisters. Again though he admits that, now his elder sister is residing
at ground floor, defendant No.2 and his children are residing at first
floor and he is not residing in the schedule property. Further when a
suggestion was put to the witness that as per recital in the Will his
father has constructed the house out of his self earnings, accordingly
he bequeathed the same in favour of his daughters, he has denied
the same and volunteers that, the same has been created.
11
O.S. No.1884/2014
12. On the other hand, in order to substantiate their
contentions the defendant No.2 filed an affidavit in lieu of oral
evidence and examined herself as D.W.1 by reproducing entire
contentions taken in the written statement as stated in para 4 supra,
as such, I feel that, again it is not necessary to reiterate the same.
13. During the course of cross-examination of D.W. 1 it has
been elicited that, her father-in-law had purchased the property in
dispute out of his self earnings and died in the month of April 2008
and her mother-in-law died in the month of January 2014 and there
is no partition in the schedule property, but she pleads ignorance
about the execution of the alleged Will dated 27/09/2013 said to
have been executed by her mother-in-law and denied the suggestion
that schedule 'B' movable property i.e. gold ornaments are in the
custody of defendants.
14. So also defendant No.3 examined herself as D.W. 2 by
reproducing the entire contentions taken in the written statement
referred at para 3 supra and got marked the documents at Ex.D.1 to
D.10 as such, I feel that, again it is not necessary to reiterate the
same, in her cross-examination states that, she has produced
unregistered Will dated 15/01/2008 said to have been executed by
her father in favour of her mother. Further when a suggestion was
put to the witness that, her father has neither executed said Will nor
she has produced it before the court, she denied as false. Further
admits that, there is no mention in Ex.D.3 Will dated 27/09/2013
about the alleged Will said to have been executed by her father in
favour of her mother. Further admits that, soon after death of her
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O.S. No.1884/2014
father, her mother inherited the same and got mutated her name as
'B' katha and the schedule property is not the self acquired property
of her mother. Further though admits that during the life time of her
father had constructed a house in the schedule property and plaintiff
is working in postal department, but, denied the suggestion that he
has also contributed some amount for construction of the said house
and Ex.D.3 has been falsely created.
15. So also defendants examined two witnesses as D.W.3 and
4. The D.W.3 states that the 1st defendant is the younger sister,
plaintiff are the children of defendant No.1 and plaintiffs are residing
under his care and custody. Further states that, suit schedule
property is the self acquired property of late Subbanna and his wife
Smt. Nagarathnamma was in possession and enjoyment of the
property, has executed Will dated 27/09/2013 and thereby
bequeathed the property to her legal heirs floor wise. Further states
that, plaintiff's mother has not made any bequeath of the property in
favour of the plaintiff as he is gainfully employed as a central
government employee and he has been separated from the joint
family and never cared for the welfare of his parents and family.
Further in para 6 of his evidence he states that, he signed the
registered Will dated 27/08/2013 as attesting witness along with
other witness Sri. M.I. Rudresh and late Smt. Nagarathnamma
affixed her signature in their presence. Further he has also identified
Ex.D.3 Will in question and signatures thereon.
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O.S. No.1884/2014
16. During the course of cross-examination of D.W.3 who is
none other than one of the attesting witnesses to the Will in question
states that, two years prior to the death Smt. Nagarathnamma was
suffering from ill health, but pleads ignorance to the suggestion that,
she was bed ridden for about a year before her death. Further
admits that, on Ex.D.3 Will in question though his name has been
mentioned as one of the witnesses, but it does not disclose his
signature, but denied the suggestion that, Smt. Nagarathnamma was
not in a position to make any Will due to her ill health and Ex.D.3 has
been created.
17. So also D.W.4 states that the suit schedule property
bearing municipal No.38 situated at Mallathalli village, measuring
40x30 feet belongs to A. Subbanna which was his self acquired
property by virtue of sale deed dated 18/10/2001. Further states that,
Smt. Nagarathanamma was in possession and enjoyment of the
property, has executed Will dated 27/09/2013 and thereby
bequeathed the property to her legal heirs floor wise. Further states
that, plaintiff's mother has not made any bequeath of the property in
favour of the plaintiff Narasimhamurthy as he is gainfully employed
as a central government employee and he has been separated from
the joint family and never cared for the welfare of his parents and
family. Further in para 5 he states that, he signed the registered
Will dated 27/08/2013 as attesting witness along with other witness
Sri. M.I. Rudresh and late Smt. Nagarathnamma affixed her
signature in their presence. Further he has also identified Ex.D.3 Will
in question and signatures thereon.
14
O.S. No.1884/2014
18. During the course of cross-examination of D.W.4 who is
none other than the another attesting witness to the Will dated
27/09/2013 states that, late Nagarathnamma has executed the said
Will in favour of the defendants and at that time himself and one
Rudresh were present, but he denied the suggestion that,
Smt. Nagarathnamma was not in a position to make any Will due to
her ill health and Ex.D.3 has been created and deposed falsely in
order to help the defendants. In such circumstances, this court has
to see that, in whose favour preponderance of probability lies.
19. It is pertinent to note here that, on careful evaluation of
oral and documentary evidence on record, it is clear that, so far as in
respect of relationship between the plaintiff and defendants is
concerned there is no dispute. It is also not in dispute that, plaintiff's
father late Sri. A. Subbanna was a retired teacher purchased the
schedule site No.38, measuring 30 x 40 feet situated at Mallathalli
village, Yeshwanthapura Hobli, Bengaluru North Taluk under
Ex.P.2/Ex.D.1 sale deed dated 18/01/2001 out of his self earnings
and also constructed the ground floor in the schedule 'A' property. It
is also not in dispute that, suit schedule 'A' property was the self
acquired property of the plaintiff's father. It is an admitted fact that,
plaintiff was and is working in Indian Postal department and thereby
getting monthly salary. Further, none of the parties have disputed
that during the life time of late Subbanna has performed the marriage
of defendant No.1 and 3 daughters. It is also not in dispute that, as
per Ex.D.2 and D.4 death extracts late A. Subbanna and his wife are
no more.
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20. It is the specific case of the plaintiff that, the suit schedule
property is the self acquired property of his father and he has also
contributed some amount for construction of the house in schedule
'A' property and schedule 'B' gold ornaments are in the custody of
the defendants, as such he is entitled for his legal share. Per
contra, as stated in para 10 of the written statement filed by
defendant No.1 and 3 during the life time of late A. Subbanna, has
executed an unregistered Will dated 15/01/2008 and thereby
bequeathed schedule 'A' property in favour of his wife
Smt. Nagarathnamma and thereby she became absolute owner of
the said property. In turn during her life time their mother also
executed a registered Will dated 27/09/2013 in favour of the
defendants, as such after the death of their parents plaintiff has no
right or locus standi to question the said act, as such, he is not
entitled for any share.
21. It is to be noticed that, the plaintiff would contend in the
plaint and written arguments that, suit schedule property is the self
acquired property of his father and after the death of his parents,
himself and defendants are enjoying the same as joint family
properties, accordingly, issue No.1 lies on the plaintiff to prove the
same. Further though there is no specific issue regarding execution
of both alleged Will in question, but based on the aforesaid pleadings
the defendants would contend that they became absolute owners in
possession of the schedule property by virtue of aforesaid both the
Will of the year 2008 and 2013, accordingly the burden of proof to
prove Issue No.2 lies on the defendants that, suit of the plaintiff is
not tenable.
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22. It is pertinent to note here that admittedly suit schedule
property was the self acquired property of plaintiff's father late A.
Subbanna. Further during the life time of plaintiff's father also
constructed a house in the schedule 'A' property. In this regard the
plaintiff would contend that, he contributed Rs.70,000/- for the
construction of the house in the schedule 'A' property, but during the
course of cross-examination P.W. 1 has specifically admitted the fact
that, he has not produced supporting documents to show that he
contributed the said sum by availing loan from the postal employees
credit co-operative society or out of his salary savings. Further
admits that, he has not contributed any amount to purchase
schedule 'B' property i.e. gold ornaments. In such circumstances,
without there being supportive oral and documentary evidence
contention of the plaintiff that, he contributed the said sum for
construction of the house in the schedule 'A' property cannot be
accepted.
23. It is also worth note that, as per the case of the defendant
No.2 and her children her husband has constructed first floor in the
schedule 'A' property and she pleads ignorance about execution of
alleged both the Will as relied by the defendant No.1 and 3. But,
during the course of cross-examination of P.W. 1 admits that, late
Manjunath.S. being the husband of defendant No.2 has constructed
the first floor and after his death, defendant No.2 and her children
are residing in the said floor. It is also not in dispute that, defendant
No.1 is residing in ground floor, defendant No.3 and her husband are
residing in the 2nd floor. P.W. 1 admits that, he is not residing in the
schedule 'A' property, but he has been residing in a rented house.
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24. This being the fact, whether the plaintiff is entitled for any
share in his father's self acquired property or not? So, as per the
provisions of Section 8 of the Hindu Succession Act, the property of
a male Hindu dying intestate shall devolve according to the
provisions of said chapter, i.e. firstly upon heirs, being the relatives
specified in Class-I of the schedule. The said schedule says that,
son, daughter, widow, mother and other persons who are being the
class-I heirs are entitled their legal share in a property of a male
Hindu i.e. late A. Subbanna who said to have died intestate as per
the case of the plaintiff equally.
25. It is an another contention of the defendants that, plaintiff
is in service and has been residing separately since long, as such,
he never took care of his parents or the property in dispute, as such,
he is not entitled. But, it is settled that in matters of Succession the
act does not differentiate between a divided son and a son who had
remained joint with his father or his father and other co-parceners
except in cases falling under Section 6 of the Act to the undivided
interest of a father in a Mithakshara coparcenery, as such the
separate or self acquired property of the father will devolve by
succession upon his heirs specified in Class-I of the schedule
including the plaintiff as referred supra.
26. Now it is clear that, again the burden shifts on the
defendants to show that, plaintiff's father A. Subbanna during his life
time has executed an unregistered Will and thereby bequeathed the
entire schedule property in favour of his wife Smt. Nagarathnamma.
But in this regard though when a suggestion was put to D.W.1 and 2
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that they have not produced the said Will before this court they
denied as false, but, as could be seen from the perusal of material
on record that, except a vague plea in the written statement the
defendants/D.W.1 and 2 have neither produced the alleged
unregistered Will dated 15/01/2008 nor produced its copy or able to
establish that late Smt. Nagarathnamma became the absolute owner
in possession of the schedule property by virtue of the said
unregistered Will by adducing cogent, oral and documentary
evidence before this court. In such circumstances, contention of the
defendants that, late Smt. Nagarathnamma, W/o Late A. Subbanna
became the absolute owner in possession of the disputed property
by virtue of alleged unregistered Will dated 15/01/2008 cannot be
accepted as worthy of credence.
27. Further, another question that arises at this juncture is as
per the case of the defendant No.1 and 3 late Smt. Nagarathnamma
executed Ex.D.3 registered Will dated 27/09/2013 in their favour as
such, defendants became absolute owners in possession of the
schedule premises floor wise. As could be seen from the perusal of
pleadings, oral and documentary evidence viz., Ex.D.3 original Will
dated 27/09/2013 in question that, absolutely there is no recital in the
said Will for having acquired the property in question by virtue of
alleged unregistered Will dated 15/01/2008. On the other hand the
2nd para of the said Will depict that late A. Subbanna who acquired
the schedule property under Ex.D.1 registered sale deed dated
18/10/201 died on 15/04/2008, accordingly, the late
Smt. Nagarathnamma furnished relevant documents before the
BBMP and got entered her name in the records as 'B' katha, as such,
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O.S. No.1884/2014
how the plaintiff's mother Smt. Nagarathnamma has acquired
absolute right, title and possession over the property in dispute? So,
as observed supra admittedly the late A. Subbanna being the
absolute owner of the self acquired property in question died
intestate. So, now it is clear that late Smt. Nagarathnamma had no
absolute right, title, interest or possession over the schedule property
so as to bequeath the same in favour of her daughter defendant
No.1 Smt. Shobha, the son i.e. the husband of defendant No.2
Sri. Manjunath or in the name of another daughter Smt. S. Uma in
respect of the schedule premises situated in 'A' schedule floor wise.
28. However even otherwise the alleged unregistered Will
dated 15/01/2008 which has not been produced before this court and
Ex.D.3 registered Will dated 27/09/2013 are to be proved in
accordance with law. Admittedly, executors of the alleged Wills are
no more. It is settled that, propounders/beneficiaries of the Will
have to prove the legality of the execution and genuineness of both
the Will by proving absence of suspicious circumstances surrounding
the Wills in terms of the provisions of Section 63(c) of the Indian
Succession Act, 1925 and Section 68 and 69 of the Indian Evidence
Act, 1872.
29. In order to substantiate their contentions regarding
execution of Ex.D.3 registered Will in question the defendant No.2
and 3 examined themselves as D.W.1 and 2 as referred supra and
got marked the documents at Ex.D.1 to D.10. But, during the course
of cross-examination of D.W.1 states that, she cannot say the fact
that, soon after the death of her father-in-law how the name of her
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mother-in-law Smt. Nagarathnamma came to be entered in the
records as shown in Ex.D.5 and 6. Further she pleads ignorance
about execution of alleged Will dated 27/09/2013 by her mother-in-
law. So also, D.W.2 in her cross-examination admits that the
schedule property is not the self acquired property of her mother
and there is no mention in the said Will to the effect that, how her
mother Smt. Nagarathnamma acquired the property in question, on
the other hand she admits that, soon after the death of her father
name of her mother came to be entered as one of the legal heirs.
30. It is also worth to note that, though the defendants
examined two witnesses as D.W.3 and 4 stating that, they are the
attesting witnesses to the alleged Will in question, but in para 5 and
6 of their evidence state that, "they are the witnesses to the
registered Will dated 27/08/2013 executed by Smt. Nagarathnamma
and they signed the same, thereafter she put her signature in her
presence", which indicates that, the date of execution of the alleged
Will in question as stated by D.W.3 and 4 is contrary to the date of
execution as relied by the defendants in Ex.D.3 registered Will dated
27/09/2013. In this regard, there is no explanation on the part of the
defendants through out the proceedings. Moreover, during the
course of cross-examination of D.W.3 it has been elicited that,
Ex.D.3 does not disclose his signature as one of the attesting
witnesses. Further admits that, late Smt. Nagarathnamma was
suffering from ill health about two years prior to her death. But,
D.W.3 and 4 denied the suggestion that, Ex.D.3 Will in question has
been created and they deposed falsely in order to help the
defendants.
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31. So on careful evaluation of oral and documentary
evidence on record now a question that arises for my consideration
is whether the defendants are able to prove the legal requirements
as stated in the case of J.P. Surappa and another reported in
2008(3)KCCR 1448?
32. The defendants would contend that Smt. Nagarathnamma
acquired the schedule property by virtue of unregistered Will dated
15/01/2008 and thereafter she executed Ex.D.3 registered Will as
referred supra. It is settled that, the Will is registered or not it makes
no difference. But this court has to appreciate the fact that whether
plaintiff being one of the natural heirs of late A. Subbanna and
Smt. Nagarathnamma has been disinherited. In this regard, it is the
contention of the defendants that, since the plaintiff is serving in
postal department and he has been well settled in his life. But as
observed supra when the defendants failed to prove that late
Smt. Nagarathnamma had no absolute title or possession over the
schedule property to bequeath the same in favour of the defendants
excluding the plaintiff from entitlement of his legal share in the self
acquired property of his father, then the said disposition appears to
be unfair in the light of relevant circumstances like exclusion of the
plaintiff who is one of the natural heirs.
33. Further, whether the late Smt. Nagarathnamma being the
testator was in sound state of mind at the time of executing the Will
or not. In this regard though Ex.D.3 Will reveals that, she was in a
sound status of mind, but during the course of cross-examination of
attesting witnesses admit that, she was suffering from ill health for
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about two years prior to her death. Ex.D.3 Will in question has been
executed on 27/09/2013. Ex.D.4 reveals that, she died on
21/01/2014. Ex.D.7 to 11 cash advance receipts, prescriptions,
medical bills and in patient bill indicates that, Smt. Nagarathnamma
being the executor of the alleged Will was admitted into Aryan Multi
Specialty Hospital on 12/01/2014 and discharged on 20/01/2014.
Thereafter she died on the very next day. So the aforesaid facts and
circumstances indicates that the propounders of the Will have failed
to show by satisfactory evidence that the said Will was signed by the
testator by understanding the nature and effect of disposition and
then put her signature on Ex.D.3 of her own free will.
34. It may be noted that whether any suspicious circumstances
exist surrounding the execution of said Will or not. It is evident that, as
observed supra late Smt. Nagarathnamma executed Ex.D.3 Will on
27/09/2013. Further within four months she was being admitted by the
defendants themselves in the said hospital. The plaintiff submits that
he was also taking care of his mother and property in dispute till her
death. This being the fact why the beneficiaries of the Will kept mum till
the demand to effect partition made by the plaintiff and filing their
written statement in the above numbered suit. So, what prevented
them to disclose about the said fact at the earliest point of time is not
explained. Further, Ex.P.7 and 8 encumbrance certificates and Ex.D.5
property extracts reflect the name of parents of the plaintiff, then why the
beneficiaries did not get their names entered in the records based on the
alleged Wills has not been explained which indicates that alleged Wills in
question of the year 2008 and 2013 did not see the light of the day till the
year 2014 and have not been acted upon in accordance with law.
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35. Therefore having regard to the facts and circumstances of
the case, I am of the opinion that the defendants being the
beneficiaries of the Wills not only failed to rebut the claim of the
plaintiff, but also failed to remove all these suspicious circumstances
in accordance with law to the satisfaction of this court so as to accept
Ex.D.3 as a genuine document in respect of the schedule properties.
However plaintiff has failed to prove that schedule 'B' movable
properties i.e. gold ornaments are in the custody of defendants by
adducing cogent, oral and documentary evidence before this court,
as such, it can be held that, though plaintiff is entitled for his share in
the schedule 'A' property, but not entitled for any share in the
schedule 'B' property. Consequently, alleged registered Will dated
27/09/2013 executed by late Smt. Nagarathnamma in favour of the
defendants is not binding on the plaintiff. For these reasons, written
arguments filed by the learned counsel for the plaintiff partly holds
good. On the other hand, the written arguments filed by the learned
counsel for the defendants to the extent as referred supra is to be
accepted. Hence, I answer Issue No.1 partly in the affirmative and 2
in the Negative.
36. Issue No.3 :- With regard to the payment of court fee is
concern, it is contended in the written statement that, valuation
made and the court fee paid by the plaintiff is insufficient. So, in a suit
for partition, if the plaintiff averred in the plaint that, they are in joint
possession and enjoyment of the suit schedule properties along with
defendants then he can file the suit by paying court fee as required under
Section 35(2) of the Act, accordingly the court fee paid by the plaintiff is
proper. Hence, I answer Issue No.3 in the negative.
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37. Issue No.4 and 5:- It is another contention of the
defendants that, the suit of the plaintiff is barred by time and this
court has no jurisdiction to try this suit. But in para 9 of the plaint it is
averred that cause of action arose to file the suit on 27/09/2013
when his mother executed the Will in question and on 23/02/2014
when he sought for partition of the schedule properties situated
within the jurisdiction of this court and defendants refused. It is
evident that, plaintiff has filed the above numbered suit in the year
2014 which is well within the time and within the jurisdiction of this
court. Hence, I answer Issue No.4 and 5 are in the negative.
38. Issue No.6 :- It is worth to note that, in view of my
discussion made supra, while dealing with Issue No.1 and 2, it is
held that, plaintiff is entitled for his legal share in the schedule 'A'
property and not entitled for any share in the schedule 'B' movable
properties. It is evident from perusal of material on record along
with Ex.P.1 family tree that late A. Subbanna died leaving behind the
plaintiff and husband of defendant No.2 as sons and defendant No.1
and 3 as daughters. It is not in dispute that, late A. Subbanna and
his wife Smt. Nagarathnamma are no more. It is also not in dispute
that, Sri. S. Manjunath died leaving behind him the defendant No.2
wife and defendant No.2(a)&(b) daughters. As observed in para 24
supra late Subbanna died leaving behind the schedule property as
his self acquired property acquired by him out of his own earnings.
Therefore, the plaintiff is entitled for partition and separate
possession of 1/4th share in the schedule 'A' property. Similarly
defendant No.1 to 3 altogether entitled for remaining 3/4th share in
the schedule 'A' property. Plaintiff is not entitled for any share in the
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schedule 'B' movable property. It is to be noticed that, the material
on record indicates that the suit site No.38 has been purchased by
the plaintiff's father and also constructed ground floor out of his own
earnings. P.W.1 admits that, he has produced any documents for
having contributed any amount towards construction of the building
floor wise. It is not in dispute that, he was and is in service in postal
department and getting monthly salary of Rs.40,000/- and above. So
what about the expenditure made by the defendants towards
construction of ground floor, first floor and second floor in schedule
'A' property. So, if the plaintiff is directed to pay a sum of Rs.75,000/-
each to the defendants and to bear cost of the proceedings till
effecting partition by metes and bounds, then it can meet the ends of
justice to both the parties. Though the plaintiff has sought for the
relief of permanent injunction, but, has failed to show that,
defendants are trying to alienate schedule 'A' property. Therefore,
having regard to the facts and circumstances of the case and
considering the relationship between the parties, I am of the opinion
that, the suit of the plaintiff deserves to be partly decreed without
cost. Hence, I answer Issue No.6 partly in the affirmative.
39. Issue No.7 :- For the foregoing reasons, I proceed to
pass the following :
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ORDER
The suit of the plaintiff is partly decreed, holding that plaintiff is entitled for partition and separate possession of his 1/4th share in the schedule 'A' property.
Further, defendant No.1 and 3 being the daughters of late A. Subbanna are together entitled for 2/4th share in the schedule 'A' property.
Similarly defendant No.2, 2(a)&(b) being the wife and daughters of late Sri. Manjunath.S altogether entitled for remaining 1/4th share in the schedule 'A' property.
Consequently, it is declared that, the alleged Will dated 27/09/2013 executed by late Smt. Nagarathnamma in favour of the defendants is not binding on the plaintiff.
The relief claimed by the plaintiff in respect of schedule 'B' property and the relief of permanent injunction stands rejected.
It is made clear that, the plaintiff shall pay a sum of Rs.75,000/- each to the defendants1, 2 and 3 and to bear cost of the proceedings till effecting partition by metes and bounds in the schedule 'A' property.
There shall be no order as to cost. Draw decree accordingly.
[ Dictated to the Stenographer, transcribed and typed by her, corrected by me and then pronounced in the Open Court on 16 th day of September 2019 ].
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 27 O.S. No.1884/2014 ANNEXURE List of witness examined on behalf of Plaintiffs PW.1 Narasimha Murthy List of documents exhibited on behalf of Plaintiffs Ex.P1 Family tree by way of affidavit Ex.P2 Certified copy of sale deed dated 18/10/2001 Ex.P3 Death certificate of S. Nagarathna Ex.P4 Certified copy of the Will dated 27/09/2013 Ex.P5 Tax paid receipts Ex.P6 Copy of letter dated 25/02/2014 issued to BBMP Ex.P7&8 Two encumbrance certificates List of witness examined on behalf of Defendants DW.1 Smt. Lakshmi.D DW.2 Smt. S. Uma DW.3 M.Y. Rudresh DW.4 M. Elavarasan List of documents exhibited on behalf of Defendants Ex.D1 Original copy of registered sale deed dated 18/10/2001 Ex.D2 Death certificate of A. Subbanna Ex.D3 Original copy of the registered Will dated 27/09/2013 Ex.D3(a) to (g) Signature of Nagarathnamma Ex.D.3(h) Signature of D.W.4 Ex.D4 Death certificate of Nagarathna.S Ex.D5 Property register extract (Form No.B) Ex.D6 Receipt issued by BBMP Ex.D7 to 9 Cash receipt issued by Aryan Multi Specialty Hospital (3) Ex.D10 Medical bills (22 Nos.) [ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 28 O.S. No.1884/2014 Judgment pronounced in Open Court vide separate order:-
ORDER The suit of the plaintiff is partly decreed, holding that plaintiff is entitled for partition and separate possession of his 1/4th share in the schedule 'A' property.
Further, defendant No.1 and 3 being the daughters of late A. Subbanna are together entitled for 2/4th share in the schedule 'A' property.
Similarly defendant No.2, 2(a)&(b) being the wife and daughters of late Sri. Manjunath.S altogether entitled for remaining 1/4th share in the schedule 'A' property.29
O.S. No.1884/2014 Consequently, it is declared that, the alleged Will dated 27/09/2013 executed by late Smt. Nagarathnamma in favour of the defendants is not binding on the plaintiff.
The relief claimed by the plaintiff in respect of schedule 'B' property and the relief of permanent injunction stands rejected.
It is made clear that, the plaintiff shall pay a sum of Rs.75,000/- each to the defendants1, 2 and 3 and to bear cost of the proceedings till effecting partition by metes and bounds in the schedule 'A' property.
There shall be no order as to cost. Draw decree accordingly.
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU