Bangalore District Court
Lavanaya Prasad A D vs Uma Devaraj on 10 September, 2024
1 O.S.No.62/2015
KABC010001872015
Presented on : 02-01-2015
Registered on : 02-01-2015
Decided on : 10-09-2024
Duration : 09 years, 08 months, 08 days
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF LXXV ADDL. CITY CIVIL AND
SESSIONS JUDGE, AT: BENGALURU (C.C.H.76)
PRESENT : Sri. SHIVANAND MARUTI JIPARE,
B.A., LL.B. (Spl.)
LXXV Addl. City Civil and Sessions
Judge, Bengaluru
Dated this the 10th day of September, 2024
ORIGINAL SUIT No.62/2015
PLAINTIFF : Smt. A.D.Lavanya Prasad,
D/o. late A.N.Devraj,
W/o. Sri G.V.R. Prasad
Aged about 56 years,
Residing at No.73/3, 'Manasa'
Millers Road, Vasanthnagar,
Bengaluru-560052.
Represented by her
husband and GPA holder
2 O.S.No.62/2015
Sri. G.V.R. Prasad
S/o. late G.V.S Marulaiah,
Aged about 64 years,
Residing at No.73/3, 'Manasa',
Millers Road,
Vasanthnagar,
Bengaluru- 560 052.
(By Sri.T.V.Vijay Raghavan, Advocate.)
:Versus:
DEFENDANTS : 1. Smt.Uma Devaraj
W/o. late A.N.Devaraj,
Aged about 73 years,
2. Sri A.D.Suroop
S/o. late A.N.Devraj,
Aged about 53 years,
No.1 and 2
Residing at No. 73 'Maya'
Millers Road, Vasanthnagar,
Bengaluru- 560 052.
(By Sri. K.N.Dayalu, Advocate for D-1 and D-2.)
-----------
Date of Institution of the : 02.01.2015
suit.
: Suit for Partition and
separate possession,
Nature of the suit Declaration, Permanent
Injunction and Mesne
Profits.
Date of Recording of :
Evidence 23.01.2021.
3 O.S.No.62/2015
Date of Judgment : 10.09.2024.
Total Duration : Years Months Days
09 08 08
(SHIVANAND MARUTI JIPARE)
LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU.
JUDGMENT
The plaintiff has filed this suit against the defendants seeking the reliefs of partition and separate possession in the suit schedule properties by metes and bounds declaring that she is entitled for 1/3 rd share in the suit schedule properties, for order of conducting an inquiry regarding Mesne profits out of the suit schedule properties, for declaring that the Gift deed dated:
22.12.2006 executed by late A.N.Devaraj in favour of the defendant No.2 pertaining to Item No.3 of the suit schedule property is not binding on the plaintiff, for permanent injunction restraining the defendants, their agents, representatives, assigns, executors etc., from alienating or encumbering or creating any charge on the 4 O.S.No.62/2015 suit schedule properties in any manner whatsoever, for declaring that the partition deed dated: 13.06.1974, registered as document No.868/1974-75 in book 1 and Volume 1806 pages 138 to 145, registered in the office of the Sub-Registrar, Shivajinagar, Bengaluru is not binding on herself and for declaring that Will dated: 04.04.2005 is null and void and not binding on herself and for costs.
2. During pendency of this suit, the plaintiff got amended the plaint.
3. The defendants have filed Writ Petition No.134 of 2024 (GM-CPC) against the plaintiff and Assistant Revenue Officer, Bruhath Bengaluru Mahanagara Palike, Bengaluru before the Hon'ble High Court of Karnataka, Bengaluru praying to quash the Order dated: 1812.2023 passed by IX Addl. City Civil and Sessions Judge, Bengaluru C/C LXXV Addl. City Civil and Sessions Judge, Bengaluru and to allow all three applications filed by the petitioners. The Hon'ble High Court of Karnataka, Bengaluru has disposed of said Writ Petition 5 O.S.No.62/2015 No.134/2020(GM-CPC) and has held that, "the trial court is directed to hear the final arguments and dispose of the suit on or before 26.04.2024" and further time is extended.
4. The brief facts averred in the plaint are as follows:
That defendant No.1 is the mother and defendant No.2 is the brother of plaintiff. The father of plaintiff by name Sri.A.N.Devaraj got married Smt.Uma Devaraj (Defendant No.1) and out of the wedlock two children were born i.e., (1) A.D.Lavanya (Plaintiff) and (2) A.D.Suroop (Defendant No.2). Her father Sri.A.N.Devaraj (Husband of defendant No.1 and father of defendant No.2) was the absolute owner of the entire immovable property bearing old site No.8, Municipal No.73, situated at Miller Road, Bengaluru- 560 052 measuring East to West: 250 feet, North to South: 80 feet on the Western side and 76 feet on the Eastern side, having acquired the same by virtue of the partition deed dated: 30.10.1954, registered as document No.1273 of 1954-55 book 1, 6 O.S.No.62/2015 Volume 806, at pages 74 to 105 registered in the office of the Sub -Registrar, Chikkamagaluru. The father of the plaintiff Sri.A.N.Devaraj had released and relinquished in respect of the immovable property bearing No.73/3, situated at Miller Road, Bengaluru, measuring 1826 Sq.ft in favour of his daughter i.e., plaintiff vide a Release deed dated: 23.11.1991, registered as document No.2970 of 1991-92, book 1 Volume 3173, registered in the office of the Sub - Registrar, Shivajinagar, Bengaluru. Her father Sri.A.N.Devaraj died on 20.03.2012 leaving behind his wife defendant No.1 and children i.e., defendant No.2 and the plaintiff as his legal heirs to succeed to his estate.
After the death of Sri.A.N.Devaraj, his wife and children i.e., plaintiff and defendants succeeded to his estate by operation of Law constituting the Hindu Joint Family. Thus the plaintiff and the defendants have seized absolute right, title and interest over the same. During life time of her father, he had transferred the property bearing No.73/1 situated at Miller Road, Bengaluru -52 measuring 2952 Sq.ft, as per the Item No.1 to the defendant No.2 7 O.S.No.62/2015 only for avoiding income tax purpose. But, the defendant No.2 has misused said property without giving the plaintiff share and got transferred the khatha in his name and he has let out one portion of the Item No.1 of the suit schedule property for rent to a tenant. It is further averred by the plaintiff that after the death of her father A.N.Devaraj the plaintiff's brother i.e., defendant No.2 without the knowledge and consent of the plaintiff illegally and unlawfully and also misrepresented and fabricated the documents in the revenue authorities got the khatha of the property bearing No.73 situated at Miller Road, Bengalure, measuring 9403 Sq.ft which is Item No.2 of the suit schedule property. The defendant No.2 also let out one portion of Northern side in the first floor of the Item No.2 of the suit schedule property to a tenant on rent and he has also been running a P.G. in the second floor of the Item No.2 of the suit schedule property illegally and unlawfully without taking permission from the concerned authority. The plaintiff's father was the absolute owner of property bearing 8 O.S.No.62/2015 Sy.No.146, after pode Sy.No.146/2 in Kelgur village, Aldur hobli, Chikkmagaluru, which is Item No.3 of suit schedule of property. After the death of father of the plaintiff, the defendant No.2 transferred/mutated the khatha in his name in respect of the Item No.3 of the suit schedule property without the knowledge and consent of the plaintiff. The plaintiff recently found out from the RTC that the defendant No.2 has got the Item No.3 of the suit schedule property in his favour by way of Gift said to have been executed by late Sri.A.N.Devaraj vide Gift deed dated: 22.12.2006. Her father had no intention of making any such gift and the plaintiff suspects that the defendant No.2 might have got the Gift deed executed in his favour by practicing fraud, coercion and undue influence and the said Gift deed dated: 22.12.2006 is not binding on the plaintiff. It is further averred by the plaintiff that after the death of her father, the plaintiff approached the defendants several times for effecting partition of the suit schedule properties and directing them to give her share, but they have postponed the 9 O.S.No.62/2015 same and never bothered to give legitimate share to the plaintiff. Till today the defendants are not cooperating with the plaintiff for effecting partition. Recently on July, 2014 when the plaintiff came to know that the defendant No.2 has applied for amalgamating the Item No.1 and 2 of the suit schedule properties and obtained single khatha of the same without the knowledge and consent of the plaintiff in the office of the Bruhat Bengalure Mahanagara Palike, Bengaluru only with malafide intention and to deprive the plaintiff legitimate share in the suit schedule properties. The plaintiff is entitled for 1/3rd share in the suit schedule properties. The plaintiff recently learnt that the defendants trying to alienate the Item No.1 and 2 of the suit schedule properties without the knowledge and consent of the plaintiff to third party.
The defendants have no right to alienate the plaintiff's share in the suit schedule properties. It is further averred by the plaintiff that during the course of this proceedings, the defendant No.2 has filed his written statement contending that the plaintiff and defendant No.2 and their 10 O.S.No.62/2015 father executed Partition deed dated: 13.06.1974 registered as document No.868/1974-75 in book 1 and Volume 1806 pages 138 to 145 registered in the office of the Sub- Registrar, Shivajinagar, Bengaluru. On scrutiny of the said Partition deed, it is found that the said partition deed was executed by the plaintiff's father when the plaintiff was a minor. The share of the plaintiff is shown as Rs.75,000/- to be paid at later date. It was a great shock to the plaintiff on seeing the Partition deed and there was no necessity for the father of the plaintiff to execute such a deed of partition that too when the plaintiff was a minor. The said Partition deed is made to suit their convenience and as such said partition is not binding on the plaintiff. Further, there was also no payment of Rs.75,000 made to the plaintiff as stated in the Partition deed. In other words the Partition deed referred by the defendant No.2 is unenforceable in law and the same has been made without any legal capacity to make the same. Thus the said Partition/ transaction is illegal and fraudulent transactions and as such said 11 O.S.No.62/2015 transaction / partition deed is null and void and not binding on the plaintiff's share. The suit schedule properties are joint family properties of the plaintiff and defendants. It is further averred by the plaintiff that the defendant No.2 contends that the father of the plaintiff and defendant No.2 has executed a Will dated:
04.04.2005 in which the property bearing No.73, Miller Road, Bengaluru is bequeathed in favour of defendant No.2 and said Will is also forged, illegal and fraudulent and as such said transaction/Will is also null and void not binding on the plaintiff's share. The Will produced by the defendant No.2 is bogus Will created for the purpose of grabbing the said schedule properties. Hence, this suit.
5. In pursuance of the suit summons, defendant No.1 and 2 have appeared through their learned Counsel.
The defendant No.2 has filed written statement. The defendant No.1 has adopted said written statement filed by the defendant No.2. Further, the defendants have filed additional written statement. The defendants have got 12 O.S.No.62/2015 amended the written statement. Further, the defendants have filed additional written statement.
6. The defendants have denied the plaint averments in toto in written statement. The defendants contend that suit filed by the plaintiff is not maintainable. Since the 2nd defendant had proposed to develop the property bearing No.73 and 73/1, Miller Road, Bengaluru within the revenue administrative jurisdiction of Bruhat Bengaluru Mahanagara Palike which is described in the schedule of the written statement. It is further contended by the defendants that the suit schedule properties are not available for partition as sought for by the plaintiff. The plaintiff is neither in possession of any portion of the plaint schedule properties nor in joint possession and that Item No.1 and 2 of the plaint schedule properties are in the possession of the 2nd defendant and is not tenanted and Item No.3 of the plaint schedule property is a coffee estate, which is under the personal cultivation and management of 2nd defendant and therefore, the suit is 13 O.S.No.62/2015 not properly valued. The plaintiff has filed false petition before the Joint Commissioner BBMP Bengaluru in case No.JC(E)/KMC/114A/16/14-15 on 14.10.2014 for the cancellation of khatha made in the name of the 2 nd defendant. Wherein 2nd defendant on 21.12.2014 has filed a detailed statement before the Joint Commissioner BBMP, Bengaluru stating that there is a registered Partition deed dated: 13.06.1974 and the properties were divided. Thereafter, A.N.Devaraj has executed a Will dated: 04.04.2005 bequeathing his estate. As per the terms of the Will the property bearing No.73, Millers road, Bengaluru has been bequeathed in favour of the 2 nd defendant. The petition filed by the plaintiff was dismissed by the Joint Commissioner BBMP in JC(E)/KMC/114A/16-14-15. The plaintiff is very well aware about the Partition deed dated: 13.06.1974 and the Will dated: 04.04.2005 prior to the filing of the above suit. The father of plaintiff and defendant No.2 and husband of the defendant No.1 is died on 20.03.2012 and that during his life time Partition deed was executed between 14 O.S.No.62/2015 plaintiff, the 2nd defendant and the father Mr.A.N.Devaraj in terms of the Partition deed dated: 13.06.1974, document No.868/1974-75 Book I volume 1806 pages 138 to 145 and registered at the office of the Sub
-Registrar, Shivajinagar, Bengaluru in respect of the property bearing Corporation No.73/1, Millers Road, Bengaluru. The defendants contend that plaintiff was paid Rs.75,000/-. It is further averred by the defendants that the Partition deed has been acted upon by the plaintiff and the plaintiff has acquiesced the rights of 2 nd defendant and therefore the plaintiff is barred under the principles of acquiescence and the plaintiff has not sought for reopening the partition under Partition deed. The defendants contend that Mr. A.N.Devaraj during his life time has executed a Will dated: 04.04.2005, in which the property bearing No.73, Millers Road, Bengaluru has been bequeathing to the 2nd defendant along with the coffee land situated at Sy.No.146, Kelegur village, Aldur Hobli, Chikkmagaluru. After the demise of Mr.A.N.Devaraj on 20.03.2012, the 2nd defendant has acquired 15 O.S.No.62/2015 testamentary title to the said property and even since then, the 2nd defendant has been exercising absolute right without any let or hindrance from anyone. The plaintiff who is the elder sister of the 2nd defendant has been allotted a residential property bearing No.73/3, Millers road, Bengaluru and is in possession and enjoyment of the same and which was given by Mr. A.N.Devaraj during his lifetime. The plaintiff and the first defendant have voluntarily have executed an affidavit dated: 21.06.2012 and 13.08.2012, respectively declaring the existence and execution of the Will dated:
04.04.2005. The properties bearing No.73 and 73/1, Millers Road are included within the revenue administrative jurisdiction of the BBMP and the name of 2nd defendant has been recorded as Khatedar in the revenue registers of the BBMP. The defendants contend that the coffee plantation is located at Kelegur village, Aldur Hobli, ChikKamagaluru and during the lifetime of Mr.A.N.Devaraj, he has executed the Gift deed dated:
31.10.2006 No.2381/2006-07 Book I, recorded in CD 16 O.S.No.62/2015 No.CKMD 27 and registered at the office of the Sub-
Registrar, Chikkmagaluru. The defendants contend that 2nd defendant is in lawful possession and enjoyment of the schedule property as absolute owner and has been exercising exclusive right of ownership to the exclusion of the plaintiff and that the plaintiff has no manner of right, title and interest to claim partition of any portion of the schedule properties. The first partition was effected in the year 1974 and the Will was executed in the year 2004 and the Gift deed was executed in the year 2006 and that the suit as brought about by the plaintiff for partition in respect of the plaint schedule properties, without admitting the claim of the plaintiff, the suit of the plaintiff is barred by limitation. It is further averred by the defendants that the family genealogical tree produced by the plaintiff is substantially correct and it is true that Mr. A.N.Devaraj have acquired the property bearing Corporation No. 73, Millers Road, Bengaluru under the said partition and that the schedule property were settled by Mr. A.N.Devaraj during his life time by way of Partition 17 O.S.No.62/2015 deed, bequeath and Gift deed and therefore no property is available for partition. Mr.A.N.Devaraj did not die intestate and therefore the suit for partition is not maintainable. Mr.A.N.Devaraj during his lifetime has executed the Gift deed in favour of the 2 nd defendant and since 2006, the 2nd defendant is in lawful possession and has been exercising exclusive right of ownership and the plaintiff cannot claim partition of the plaint schedule properties. It is admitted that 2 nd defendant in order to develop the property No.73 and 73/1 as a composite properties had submitted an application to the BBMP and the said application is pending. The plaintiff is not entitled for any share in the plaint schedule properties and the claim of the plaintiff for 1/3 rd share in the plaint schedule properties is not within the scope of the law of partition as the plaintiff has not established that the plaint schedule properties had been left behind by late A.N.Devaraj for partition, since the said properties had already vested with the 2nd defendant. The defendant No.2 has executed a Lease agreement in respect of the 18 O.S.No.62/2015 properties bearing No.73 and 73/1, Millers Road, Bengaluru and the said document is duly registered. The plaintiff has suppressed material facts. There is no cause of action for the suit. Hence, defendants pray to dismiss the suit with exemplary costs of Rs.1,00,000/-.
7. The defendants have filed additional written statement. The defendants contend that the plaintiff has suppressed material facts. As per the Hindu Succession Act (Amendment) 2005, under Section 6 "Devolution of interest in coparcenary property - (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu Family governed by the Mitakshara law, the daughter of a coparcener shall,-
a) by birth became a coparcener in her own right in the same manner as the son;
b) have the same rights in the coparcenary property as she would have had if she had been a son;
c) be subject to the same liabilities in respect of the said coparcenary property as that of a Son, and any reference 19 O.S.No.62/2015 to Hindu Mitakshara coparceners shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this Sub-Section shall affect or invalidate and disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20 th day of December, 2004."
The defendants contend that there is a registered partition before 20th December 2004 i.e., Partition deed dated: 13.06.1974 registered as document No.868/1974- 75, in book No.1 Volume 1806, pages 138 to 145 registered in the office of Sub-Registrar Shivajinagar and a suit for partition deed for declaring that the registered Partition deed dated: 13.06.1974 which is more than 40 years old document is not binding on the plaintiff and other reliefs in the manner as sought for by the plaintiff does not lie as there arose no cause of action and the suit is hopelessly barred by law of limitation. The plaintiff is not in possession of the suit schedule properties. Under the circumstances, the plaintiff is duty bound to seek 20 O.S.No.62/2015 appropriate relief of declaration of her right, title and interest over the suit schedule properties and seek possession of the same by paying the Court fees on the market value of the suit schedule properties and by filing the suit correctly for complete / proper reliefs. The plaintiff is therefore duty bound to value the above suit under Section 24(a) of the Karnataka Court Fees and Suits Valuation Act and pay the required Court fees on the market value of the suit schedule properties. The defendants have denied that the plaintiff on seeing the Partition deed produced by the defendant No.2 took it by surprise and shocked to see the contents of the same and there was no necessary for father of the plaintiff to execute such a deed of partition that too when plaintiff was a minor and the said partition deed is not binding on plaintiff and the said partition transaction is illegal and fraudulent transaction. The defendants contend that the plaintiff is a party to the registered Partition deed dated: 13.06.1974 and she has acted upon it and the plaintiff has received the cash of Rs.75,000/- and now seeking 21 O.S.No.62/2015 declaring the above said registered Partition deed is not binding on plaintiff is not maintainable. The plaintiff is well aware of the Partition deed dated: 13.06.1974 and Will dated: 04.04.2005. Hence, the defendants pray to dismiss the suit with heavy costs.
8. The plaintiff has filed rejoinder. The plaintiff contents that, averments of para No.4(a) of additional written statement is not correct. The plaintiff has denied that, as per Will, the property bearing No.73, Millers Road, Bengaluru has been bequeathed in favour of defendant No.2. The plaintiff has denied that, she is very well aware of Partition deed dated: 13.06.1974 and Will dated: 04.04.2005 prior to filing of this suit. Hence, the plaintiff prays to decree suit.
9. The defendants have filed additional written statement. The defendants contend that, suit of the plaintiff is not maintainable. The father of the plaintiff and the defendant No.2 acquired said suit schedule property and other properties by virtue of registered Partition deed 22 O.S.No.62/2015 dated: 30.10.1954 and 13.06.1974. The A.N.Devaraj is having other properties and in an ingenious method, the suit is filed only for the relief of partition which is acquired by the defendant No.2 excluding the other family properties. All family properties have been to the included in suit for partition and suit for partial partition is not maintainable without adding all the ancestral joint family properties. The A.N.Devaraj during his life time along with plaintiff and defendant No.2 have entered into registered Partition deed dated: 13.06.1974. The Section 6(5) of the Hindu Succession Act clearly states that a partition taken place before 20th day of December 2004 is saved. The said partition came into effect on 13.06.1974 and therefore, the amended provisions are not applicable. To the said Partition deed dated: 13.06.1974, the father of the plaintiff and defendant No.2 is also a party. Since the amendment provision are not applicable in these set of circumstances and as on the date of Partition deed dated:
13.06.1974, the plaintiff cannot claim herself to be coparcener and plaintiff has no share in ancestral 23 O.S.No.62/2015 properties as on the date of the Partition deed dated:
13.06.1974. There is no pleading of fraud in respect of the Partition deed. The defendant No.2 has acquired suit schedule Item No.1 property by Partition deed dated: 13.06.1974 which are acquired prior to 20.12.2004 would not be available for partition. The Item No.3 of suit schedule property is self acquired property of Mr.A.N.Devaraj and it is not a joint family property. Hence, the defendants pray to dismiss the suit with heavy costs.
10. The plaintiff has filed counter statement as against the additional written statement filed by the defendants on 04.10.2023. The plaintiff contends that, the Item No.4 of suit schedule property has been included at the instance of the defendants seeking for inclusion of not only the Item No.4 of the suit schedule property, but also the property which has been sold under the registered sale deed dated: 26.10.1977 to one Mr. Amarjeet Singh shown as Item No.5 in the said application dated: 20.06.2023. The aforesaid application 24 O.S.No.62/2015 was dismissed by Court by an order dated: 12.07.2023. As against the said order the defendants filed a Writ Petition before the Hon'ble High Court of Karnataka in W.P.No.15609/2023. The said Writ Petition came to be disposed of on 14.09.2023 wherein under the said order the Item No.4 now included in the suit was directed to be included and the property bearing No.73/2 sold to Sri.Amarjeet Singh on 26.10.1977 vide Item No.5 has been excluded solely on the ground that the defendants conceded that they would not press the said property to be included since the third party right has been created by virtue of the said sale. But however, in the said order passed by the Hon'ble Court it has been held that the Item No.4 sought to be included in the suit does not amount to sale nor any third-party right is created. It has also been observed in the said order whether the relinquishment in favour of the Daughter/ Plaintiff would amount to alienation or under what circumstances such relinquishment has taken place is a matter for trial. Under said order this Court has also been asked to examine as 25 O.S.No.62/2015 to whether such a direction sought in the application to include one item would be necessary to decide the real controversy involved. That on mere inclusion of an Item to the plaint schedule it would be not available for partition. The defendants have not revealed anywhere as to which are other properties which are available for partition and they should also be a subject matter of partition. In absence of any such pleading or information available mere making statement that A.N.Devaraj has acquired other properties does not arise. The defendants are trying to introduce new pleading. The partition deed dated: 13.06.1974 under which document the defendant No.2 came in possession of suit schedule 'A' property being Item No.1 is not a sale nor an alienation and no third-party right is created. Therefore, under the circumstances the defendants cannot blow hot and cold at the same time. The Hon'ble High Court has also concluded that whether the said property is available for partition or not is to be decided by this Court in the present suit. Hence, plaintiff prays to decree this suit. 26 O.S.No.62/2015
11. On the basis of above pleadings, following Issues and Additional Issues have been framed by my learned predecessor in office.
ISSUES
1. Whether the plaintiff proves that the suit schedule property are joint family properties?
2. Whether the plaintiff proves that the defendant No.2 created or fabricated gift deed dated: 22/12/2006 by fraud, coercion and undue influence?
3. Whether the plaintiff proves that the Registered partition deed dated: 13/6/1974 is null and void and not binding on her?
4. Whether the plaintiff proves that the defendant No.2 forged and created bogus will dated: 4/4/2005 and it is not binding on her?
5. Whether the defendants prove that the suit is barred by limitation?
27 O.S.No.62/2015
6. Whether the defendants prove that the will dated: 4/4/2005 is valid?
7. Whether the defendants prove that the suit is not maintainable?
8. Whether the defendants prove that the gift deed dated: 22/12/2006 is valid?
9. Whether the defendants prove that the valuation of the suit is improper and court fee paid is insufficient?
10. Whether the plaintiff proves that she is entitled for partition of 1/3rd share?
11. What order or decree?
ADDITIONAL ISSUES
1. Whether the defendants prove that, item No.4 is a joint family properties of the plaintiff and defendants?
12. In support of the case, the General Power of Attorney holder of the plaintiff is examined as P.W.1 and marked Ex.P.1 to Ex.P.45 and closed her side of evidence. 28 O.S.No.62/2015 In rebuttal, witness by name B.S.Vijayakumar is examined as D.W.1, the defendant No.2 is examined as D.W.2, witness by name Rajendra Prasad.J is examined as D.W.3, witness by name B.V.Veena is examined as D.W.4 and witness by name A.C.Santosh S/o.A.N.Chandre Gowda is examined as D.W.5 and got marked at Ex.D.1 to Ex.D.47 and closed their side of evidence.
13. Heard the arguments of both Counsels of both parties at length and perused the materials on record. Further, the learned Counsel for plaintiff and defendants have filed written arguments.
14. My findings on the above Issues and Additional Issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : In the Affirmative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Addl. Issue No.1 : In the Negative
Issue No.7 : In the Negative
29 O.S.No.62/2015
Issue No.8 : In the Negative
Issue No.9 : In the Negative
Issue No.10 : In the Affirmative
Issue No.11 : As per the final order
for the following:
REASONS
15. ISSUES NO.1 TO 4, ISSUE NO.6, ISSUE NO.8 AND ADDITIONAL ISSUE NO.1: These Issues are interrelated to each other and involve common appreciation of facts and evidence. Hence, to avoid repetition of facts, I have taken these Issues together for common consideration.
16. The plaintiff has contended that, the defendant No.1 is the mother and defendant No.2 is the brother of plaintiff. The father of plaintiff by name Sri.A.N.Devaraj got married Smt.Uma Devaraj (Defendant No.1) and out of the wedlock two children were born i.e., (1) A.D.Lavanya (Plaintiff) and (2) A.D.Suroop (Defendant No.2). Her father Sri.A.N.Devaraj is died on 20.03.2012 leaving behind his wife defendant No.1 and children i.e., 30 O.S.No.62/2015 defendant No.2 and the plaintiff as his legal heirs to succeed to his estate. After the death of Sri.A.N.Devaraj, his wife and children i.e., plaintiff and defendants succeeded to his estate by operation of Law constituting the Hindu Joint Family. Thus the plaintiff and the defendants have seized absolute right, title and interest over the same. The plaintiff has contended that after the death of her father, the plaintiff approached the defendants several times for effecting partition of the suit schedule properties and directing them to give her share, but they have postponed the same and never bothered to give legitimate share to the plaintiff.
17. The defendants have contended that, suit schedule properties are not available for partition as sought for by the plaintiff. The plaintiff is neither in possession of any portion of the plaint schedule properties nor in joint possession and that Item No.1 and 2 of the plaint schedule properties are in the possession of the 2nd defendant and is not tenanted and Item No.3 of 31 O.S.No.62/2015 the plaint schedule property is a coffee estate, which is under the personal cultivation and management of 2 nd defendant. Mr. A.N.Devaraj has executed a Will dated:
04.04.2005 bequeathing his estate. As per the terms of the Will the property bearing No.73, Millers road, Bengaluru has been bequeathed in favour of the 2 nd defendant. The plaintiff is very well aware about the Partition deed dated: 13.06.1974 and the Will dated:
04.04.2005 prior to the filing of the above suit. The defendants have contended that the Partition deed has been acted upon by the plaintiff. The plaintiff who is the elder sister of the 2nd defendant has been allotted a residential property bearing No.73/3, Millers road, Bengaluru and is in possession and enjoyment of the same and which was given by Mr. A.N.Devaraj during his lifetime. The plaintiff and the first defendant have voluntarily have executed an affidavit dated: 21.06.2012 and 13.08.2012, respectively declaring the existence and execution of the Will dated: 04.04.2005. The defendants have contended that the coffee plantation is located at 32 O.S.No.62/2015 Kelegur village, Aldur Hobli, ChikKamagaluru and during the lifetime of Mr.A.N.Devaraj, he has executed the Gift deed dated: 31.10.2006. The plaintiff is not entitled for any share in the plaint schedule properties and the claim of the plaintiff for 1/3rd share in the plaint schedule properties is not within the scope of the law of partition as the plaintiff has not established that the plaint schedule properties had been left behind by late A.N.Devaraj for partition, since the said properties had already vested with the 2nd defendant. The defendant No.2 has executed a Lease agreement in respect of the properties bearing No.73 and 73/1, Millers Road, Bengaluru and the said document is duly registered.
18. The defendants have contended in additional written statement that there is a registered partition before 20th December 2004 i.e., Partition deed dated: 13.06.1974 registered as document No.868/1974-75, in book No.1 Volume 1806, pages 138 to 145 registered in the office of Sub-Registrar, Shivajinagar and a suit for 33 O.S.No.62/2015 partition deed for declaring that the registered Partition deed dated: 13.06.1974 which is more than 40 years old document is not binding on the plaintiff and other reliefs in the manner as sought for by the plaintiff does not lie as there arose no cause of action. The plaintiff is not in possession of the suit schedule properties. The plaintiff is well aware of the Partition deed dated: 13.06.1974 and Will dated: 04.04.2005.
19. The plaintiff has contended in rejoinder that she has denied that, she is very well aware of Partition deed dated: 13.06.1974 and Will dated: 04.04.2005 prior to filing of this suit.
20. The defendants have contended in additional written statement that A.N Devaraj during his life time along with plaintiff and defendant No.2 have entered into registered Partition deed dated: 13.06.1974. The Section 6(5) of the Hindu Succession Act clearly states that a partition taken place before 20th day of December 2004 is 34 O.S.No.62/2015 saved. The said partition came into effect on 13.06.1974 and therefore, the amended provisions are not applicable.
Since the amendment provision are not applicable in these set of circumstances and as on the date of Partition deed dated: 13.06.1974, the plaintiff cannot claim herself to be coparcener and plaintiff has no share in ancestral properties as on the date of the Partition deed dated:
13.06.1974.
21. The plaintiff has contended in counter statement as against the additional written statement filed by the defendants on 04.10.2023 that the defendants have not revealed anywhere as to which are other properties which are available for partition and they should also be a subject matter of partition. In absence of any such pleading or information available mere making statement that A.N.Devaraj has acquired other properties does not arise. The defendants are trying to introduce new pleading.35 O.S.No.62/2015
22. In order to substantiate the contention, the General Power of Attorney holder of the plaintiff has filed an affidavit as examination-in-chief and he is examined as P.W.1. The P.W.1 has reiterated the contents of plaint.
The defendant No.2 has filed an affidavit as examination- in-chief and he is examined as D.W.2. The D.W.2 has reiterated the contents of written statement. The defendants have adduced evidence of witness by name B.S.Vijayakumar is examined as D.W.1, witness by name Rajendra Prasad.J is examined as D.W.3, witness by name B.V.Veena is examined as D.W.4 and witness by name A.C.Santosh S/o.A.N.Chandre Gowda is examined as D.W.5.
23. The plaintiff has relied on documentary evidence at Ex.P.1 to Ex.P.45.
24. The defendants have relied on documentary evidence at Ex.D.1 to Ex.D.47.
25. The plaintiff has relied on Ex.P.1 - General Power of Attorney, Ex.P.2 - Release deed, Ex.P.3 - 36 O.S.No.62/2015 Certified copy of Partition deed, Ex.P.3(a) - Kannada version of Ex.P.3, Ex.P.4 - RTC extract, Ex.P.5 - Death certificate, Ex.P.6 - RTC Extract, Ex.P.7 and Ex.P.8 - Khatha certificates, Ex.P.9 and Ex.P.10 - Khatha extracts, Ex.P.11 - Certified copy of Gift deed, Ex.P.12 - RTC extract, Ex.P.13 - Mutation Register extract, Ex.P.14 - Passport, Ex.P.15 - Certified copy of lease deed, Ex.P.16 - True copy of deed of Amalgamation, Ex.P17 - True copy of affidavit, Ex.P.18
- Endorsement, Ex.P.19 - True copy of Information, Ex.P.20 - Khatha certificate, Ex.P.21 - Khatha extract, Ex.P.22 - Khatha certificate, Ex.P.23 - Khatha extract, Ex.P.24 to Ex.P.31 - Property Tax receipts, Ex.P.32 - Gift deed, Ex.P.33 - Special intimation letter, Ex.P.34 - Khatha certificate, Ex.P.35 - Khatha extract, Ex.P.36 - Khatha certificate, Ex.P.37 to P.41 - Property Tax receipts, Ex.P.42
- Encumbrance certificate, Ex.P.43 - Sanction plan, Ex.P.44 - Sanction letter for rectification of sketch and Ex.P.45 - Receipt for the sanction plan.
26. The defendants have relied on Ex.D.1 - Certified copy of sale deed, Ex.D.2 - Original Partition 37 O.S.No.62/2015 deed, Ex.D.2(a) and Ex.D.2(b) -Signatures, Ex.D.3 - Certified copy of Order passed by Joint Commissioner, BBMP, Bengaluru, Ex.D.4 - Certified copy of Order sheet in C.C.No.3764/2017, Ex.D.5 - Certified copy of complaint in C.C.No.3764/2017, Ex.D.6 - and Ex.D.7 - True copies of affidavits, Ex.D.8 - Certified copy of Tippani, Ex.D.9 - Endorsement, Ex.D.10 - Certificate, Ex.D.11 to Ex.D.22 - Tax paid receipts, Ex.D.23 to Ex.D.30 - Income Tax paid Challans, Ex.D.31 - Aadhaar card, Ex.D.32 - Original will, Ex.D.32(a) to Ex.D.32(g) - Signatures, Ex.D.33 - RPAD cover, Ex.D.34 - Summons, Ex.D.35 - General Power of Attorney, Ex.D.36 - Death certificate, Ex.D.37 - Notarized copy of Election ID, Ex.D.38 - Certified copy of sale deed, Ex.D.39 - Certified copy of Judgment in O.S.No.4021/1993, Ex.D.40 - Certified copy of Decree in O.S. No.4021/1993, Ex.D.41 - Certified copy of plaint in O.S. No.4021/1993, Ex.D.42 - Certified copy of written statement of 1st defendant in O.S.No.4021/1993, Ex.D.43
- Certified copy written statement of 2 nd defendant in O.S.No.4021/1993, Ex.D.44 - Original Gift deed, 38 O.S.No.62/2015 Ex.D.44(a) -Signature, Ex.D.45 - True copy of letter, Ex.D.46 - List of the scanned documents attested by the ARO and Ex.D.47 - Notarized copy of Aadhaar card.
27. The learned Counsel Sri.T.V.Vijay Raghavan appearing for plaintiff has vehemently argued that the suit schedule properties are joint family properties and father of plaintiff had no intention of making any gift in favour of defendant No.2 and there was no necessity for father of plaintiff to execute Partition deed that too when plaintiff was minor and Will is created by the defendant No.2 for grabbing suit schedule properties and the plaintiff is entitled for 1/3rd share in suit schedule properties. The learned Counsel Sri.K.N.Dayalu, appearing for defendants has vehemently argued that the General Power of Attorney of the plaintiff can not depose in place and instead of principal and Mr. A.N.Devaraj during his life time, a Partition deed dated:
13.06.1974 was executed between the plaintiff, the defendant No.2 and Mr.A.N.Devaraj and further, 39 O.S.No.62/2015 A.N.Devaraj had executed Will dated: 04.04.2005 bequeathing his estate and Mr. A.N.Devaraj during his life time has executed Gift deed dated: 31.10.2006 in favour of the defendant No.2 and the plaintiff was aware of Partition deed dated: 13.06.1974 and Will dated:
04.04.2005 and Partition deed is acted upon by the plaintiff herself and suit for partial partition is not maintainable and the plaintiff is not entitle for 1/3rd share in suit schedule properties.
28. The learned Counsel for the plaintiff has relied on the following decisions:
1. AIR 1976 Supreme Court 1, in case of Ratnam Chettiar and Others, -Vs- S.M.Kuppuswami Chettiar and Others.
2. 2013 0 AIR (KAR) 200, in case of Kalsegowda and Others, -Vs- Mrs. K.S. Jayamma and others.
3. AIR 2013 Supreme Court 3525, in case of Rohit Chauhan -Vs- Surinder Singh and Others.40 O.S.No.62/2015
4. (2006) 8 SCC 656, in case of Danamma @ Suman Surpur and another -Vs- Amar and others.
5. 2020 (2) Kar. L R 161, in case of Vineeth Sharma
-Vs- Rakesh Sharma and Others.
6. AIR 2009 Supreme Court 951, in case of K. Lakshmanan -Vs- Thekkayil Padmini and others.
7. ILR 2008 KAR 2015 220, in case of J.T Surappa and another -Vs- Sri. Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others.
8. AIR 1959 Supreme Court 443, in case of H. Venkatachala Iyengar -Vs- B.N.Thimmajamma and others.
9. AIR 2017 Hyderabad 125, in case of Smt.R. Seethamma @ Seetha Lakshmi -Vs- M.Thimma Reddy.
10. AIR 1990 Supreme Court 1742, in case of Ram Piari -Vs- Bhagwant and others.
11. AIR 2008 Supreme Court 2485, in case of Babusingh and others., -Vs- Ram Sahai @ Ram Singh.41 O.S.No.62/2015
12. Live Law 2021 Supreme Court 726, in case of Murthy and Others -Vs- C. Saradambal and others.
13. 2021-Supreme Court (KAR) 280, in case of Smt.Ramamani W/o. Late Ashok Khulyalkar
-Vs- Smt. Sudha W/o. MohanRao Sulibhavi.
14. AIR 1995 SC 1789, in case of Vidya Devi @ Vidyavati (Dead by LRs.) -Vs- Prem Prakash and Others.
15. (2019) 14 SCC 220, in case of Chennadi Jalapathi Reddy -Vs- Baddam Pratapa Reddy (Dead), through Legal Representative and another.
16. AIR 1992 Patna 40, in case of Triloki Vishwakarma @ Triloki Mistri -Vs- Zaitun Nis.
17. (1997) 7 SCC 137, in case of Balwant Singh and another -Vs- Daulat Singh (Dead) by Lrs., and Others.
18. (2009) 5 SCC 591, in case of Narasamma and Others -Vs- State of Karnataka and Others.
19. ILR 2012 KAR 4129, in case of S.K Lakshminarasappa, since deceased by his LRs.
-Vs- Sri. B.Rudraiah and Others.
42 O.S.No.62/2015
20. (2021) 14 SCC 500, in case of Raj Kumari and Others -Vs- Surinder Pal Sharma.
21. 2011 (4) KCCR 2930, in case of Sri.Malipatil Basavarajappa, Bangalore -Vs- Smt. Sarvamangalamma and Others.
22. AIR 1969 SC 1076, in case of Mudigowda Gowdappa Sankh and Others -Vs- Ramchandra Revgowda Sankh (dead) by his Legal representative and another.
23. 1990 1 SCC 266, in case of Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur -Vs- Smt. Chhoti and Others.
24. Judgment of Hon'ble Supreme Court of India in Special Leave Petition (C) No.13146/2021, in case of Jitendra Singh -Vs- The state of Madhya Pradesh and Others.
25. 2023 Live Law (SC) 262, in case of Prasanta Kumar Sahoo and Others -Vs- Charulata Sahu and Others.
26. 2006 (3) KCCR 1684, in case of Bhimappa and others -Vs- Allisab and others.
43 O.S.No.62/2015
27. 1999 0 Supreme (Bom) 680, in case of Shri. Humberto Luis and another -Vs- Shri. Floriano Armando Luis and another.
I have bestowed my anxious considerations to the principles emerges from these respected decisions.
29. The learned Counsel for the defendants has relied on the following decisions:
1. AIR 2005 Supreme Court 439, in case of Janki Vashdeo Bhojwani and another -Vs- Induslnd Bank Ltd. and Others.
2. AIR 2004 Andhra Pradesh 309, in case of Smt. S.Padmavathamma -Vs- Smt.S.Sudha Rani and Others.
3. 2010 AIR SCW 6198, in case of Man Kaur (deceased by Lr's) -Vs- Hartar Singh Sangha.
4. 2017 (3) AKR 161, in case of Smt. A.C Nagaveni and Others -Vs- Smt. Akkamma and Others.
5. AIR 2024 Supreme Court 1947, in case of Manisha Mahendra Gala and Others -Vs-
Shalini Bhagwan Avatramani.
6. AIR 1999 Supreme Court 1441, in case of Vidhyadhar -Vs- Mankikkrao and Another. 44 O.S.No.62/2015
7. Laws (KER)-2005-3-22(DB), in case of Ratheesh Kumar -Vs- Jitendra Kumar.
8. Laws (KER)- 2007- 7- 97, in case of Rekha Rani
-Vs- Prabhu.
9. AIR 1916 Calcutta 374, in case of Brahmadat Tewari -Vs- Chaudan Bibi.
10. AIR 1955 Supreme Court 363, in case of Naresh Charan Das Gupta -Vs- Paresh Charan Das Gupta.
11. AIR 1941 Privy Council 93, in case of A.L.N Narayanan Chetyar -Vs- Official Assignee.
12. AIR 1981 Allahabad 50, in case of Chhuttan Lal
-Vs- Shanti Prakash and others.
13. AIR 1983 Orissa 24, in case of Dhruba Sahu and after him Nalumoni Sahu and another -Vs- Paramananda Sahu.
14. Judgment of Hon'ble High Court of Karnataka, Bengaluru in W.P.No.39982/2018 (GM-CPC), in case of Smt.Hemalatha W/o. Sri.Jayaramaiah
-Vs- Venkatesh S/o. Late. Kambegowda @ Kambaiah.
45 O.S.No.62/2015
15. Judgment of Hon'ble High Court of Karnataka, Bengaluru in Civil Revision Petition No.39/2017(IO), in case of Sri. Sooryanarayana Sharma -Vs- Smt. Padmini R. Bhat and Others.
16. AIR 2009 Bombay 27, in case of Abdul Kayyum
-Vs- Puranalal Harinarayan Jaiswal and another.
17. Judgment of Hon'ble High Court of Karnataka, Bengaluru in Regular Second Appeal No.209/2007, in case of Rangahanumaiah (Since deceased by his Lrs.) G.R Rangahanumaiah and Others -Vs- Devaraj S/o. Kemparangaiah and Others.
18. Judgment of Hon'ble High Court of Karnataka, Dharwad Bench in Writ Petition No.105400/2023 (GM-GPC), in case of Kadappa since deceased by his LR.'s- Malagouda S/o.Kadappa Madagouda and Others -Vs-
Laxmi Bai, since deceased by her LR's, Sidram S/o. Ratnappa Chougala and Others.
19. AIR 1999 Supreme Court 876, in case of Bailochan Karan -Vs- Basant Kumari Naik and another.
46 O.S.No.62/2015
20. (2020) 9 Supreme Court Cases 1, in case of Vineeta Sharma -Vs- Rakesh Sharma and Others.
21. (2020) 11 Supreme Court Cases 715, in case of Ganesan (Dead) through Legal Representatives -Vs- Kalanjiam and others.
22. (1976) 4 Supreme Court Cases 554, in case of Seth Beni Chand (since dead) now by LR's -Vs- Smt. Kamla Kunwar and others.
23. (2022) 1 SCC 115, in case of V.Prabhakara -Vs-
Basavaraj. K. (Dead) by Legal Representatives and another.
24. (2020) 11 SCC 103, in case of M.Arumugam -Vs-
Ammaniammal and others.
25. (2019) 3 SCC 611, in case of Radhamma and others -Vs- H.N Muddukrishna and others.
26. 1962 SCC Online SC 38, in case of Ladli Parshad Jaiswal -Vs- Karnal Distillery Co. Ltd., Karnal and others.
27. (2022) 2 SCC 573, in case of Electrosteel Castings Ltd -Vs- UV Asset Reconstruction Company Ltd. and Others.
47 O.S.No.62/2015
28. (2020) 13 SCC 143, in case of Canara Bank
-Vs- P. Selathal and Others.
29. (2021) 5 SCC 241, in case of H.S Goutham -Vs-
Rama Murthy and another.
30. Judgment in Hon'ble High Court of Karnataka, Bengaluru in Regular First Appeal No.2208/2018 (PAR), in case of Nishanth D.Shekar S/o. M.C.Dhayashekar and another
-Vs- Sri.M.C.Dayashekar S/o.
S.M.Chandrashekar and others.
I have bestowed my anxious considerations to the principles emerges from these respected decisions.
30. On perusal of Ex.P.1 which shows that, the plaintiff has executed General Power of Attorney in favour of her husband by name Mr.G.V.R.Prasad, as mentioned in respect of schedule properties. On perusal of Ex.P.2 which reflects that, father of plaintiff and defendant No.2 has executed the release deed dated: 23.11.1991 in favour of plaintiff in respect of Item No.4 of suit schedule property. The plaintiff has relied document at Ex.P.3- Certified copy 48 O.S.No.62/2015 of Partition deed dated: 30.10.1954. On perusal of Ex.P.4 which shows that, name of defendant No.2 is appearing as possessor and cultivator column in respect of Item No.3 of suit schedule property for year 2019-2020. On perusal of Ex.P.5 which shows that, the father of plaintiff and defendant No.2 by name A.N.Devaraj is died on 20.03.2012. On perusal of Ex.P.6 which shows that, name of defendant No.2 is appearing as possessor and cultivator column in respect of Item No.3 of suit schedule property for year 2014-2015. On perusal of Ex.P.9 which shows that, Item No.2 of suit schedule property is standing in name of defendant No.2. On perusal of Ex.P.10 which shows that, Item No.1 of suit schedule property is standing in name of defendant No.2. On perusal of Ex.P.11 which shows that, the father of plaintiff and defendant No.2 has executed Gift deed in favour of defendant No.2, dated: 31.10.2006 in respect of Item No.3 of suit schedule property. On perusal of Ex.P.12 which shows that, name of defendant No.2 is appearing as possessor and cultivator column in respect of Item 49 O.S.No.62/2015 No.3 of suit schedule property for year 2014-2015. On perusal of Ex.P.13 which reflects that, the defendant No.2 got mutated his name in respect of Item No.3 of suit schedule property from M.N.Devaraj as per M.R.No.32/2006-2007. On perusal of Ex.P.15 which reveals that, the defendant No.2 has executed deed of lease in favour of M/s. Unishire Constructions LLP, dated:
14.03.2014 in respect of Item No.1 and 2 of suit schedule properties. On perusal of Ex.P.16 which reflects that, the defendant No.2 has executed deed of Amalgamation dated: 05.06.2014 in respect of Item No.1 and 2 of suit schedule properties. On perusal of Ex.P.21 which shows that, Item No.4 is standing in the name of plaintiff. On perusal of Ex.P.23 which shows that, Item No.4 is standing in the name of plaintiff. The plaintiff has relied Ex.P.24 to Ex.P.31- Property Tax paid receipts in respect of suit schedule properties. On perusal of Ex.P.32 which shows that, the plaintiff has executed Gift deed dated:
25.03.2010 in favour of Mr.G.V.R.Prasad in respect of Item No.4 of suit schedule property. On perusal of Ex.P.35 50 O.S.No.62/2015 which shows that, property No.73/3-2 is standing in favour of G.V.R.Prasad.
31. On perusal of Ex.D.2 which shows that, Partition deed is executed between A.N.Devaraj, defendant No.2 and plaintiff in respect of Item No.2 and 1 suit schedule properties. On perusal of Ex.D.3 which shows that, petition is filed by the plaintiff before Joint commissioner as case No.JC(E)/KMC/114A/16/14-15 is rejected. On perusal of Ex.D.6 which shows that, plaintiff has executed affidavit that she has no objection to transfer khatha of property of Item No.2 of suit schedule property. On perusal of Ex.D.7 which shows that, defendant No.1 has executed affidavit that she has no objection to transfer khatha of property of Item No.2 of suit schedule property.
The defendants have relied Tax paid receipts as per Ex.D.11 to Ex.D.22 - Tax paid receipts and Ex.D.23 to Ex.D.30 - Income Tax paid Challans. On perusal of recitals of Ex.D.32 which shows that, A.N.Devaraj has executed Will, dated: 04.04.2005 in respect of Item No.2 51 O.S.No.62/2015 and Item No.4 of suit schedule properties. The defendants have relied document at Ex.D.38- Certified copy of sale deed. On perusal of Ex.D.39 which shows that suit in O.S.No.4021/1993 is filed by Amarjit Singh as plaintiff against Sri.A.N.Devaraj and plaintiff and another as defendants before XVI Addl. City Civil and Sessions Judge, Bengaluru, was dismissed. On perusal of Ex.D.44 which shows that, A.N.Devaraj had executed gift deed in favour of defendant No.2 in respect of Item No.4 of suit schedule property.
32. So far as oral evidence is concerned to lis that General Power of Attorney holder of plaintiff is examined as P.W.1 and P.W.1 has reiterated the contents of plaint. The P.W.1 has admitted in cross examination that: "Above 2 years black plaintiff fell down from the stairs case and sustained injury on her head and she is unable o walk." Further, P.W.1 has stated in cross examination that: "I do not know the registered partition taken place in the family of plaintiff and defendants on 13.06.1974." 52 O.S.No.62/2015 Further, P.W.1 has stated in cross examination that: "It is false to suggest that partition deed dated: 13.06.1974 is acted upon." Further, P.W.1 has stated in cross examination that: "It is false to suggest that plaintiff has no personal knowledge about the contents of Ex.P.1. It is false to suggest that I have created Ex.P.1 for the purpose of this suit .It is false to suggest that plaintiff has got no right or title with respect to the schedule properties mentioned in Ex.P.1. It is false to suggest that the plaintiff has no right to execute Ex.P.1 in my favour. I have no personal knowledge about the handling over any document by A.N.Devaraj to plaintiff prior to her marriage or after her marriage." Further, P.W.1 has stated in cross examination that: "The plaintiff has knowledge about the said will earlier filing of the present suit is not correct." Further, P.W.1 has stated in cross examination that: "It is true to suggest that plaintiff is in possession of property bearing No.73/3. It is true to suggest that plaintiff is not in possession of property bearing No.73/1. It is false to suggest that transfer of Khata of suit Item 53 O.S.No.62/2015 No.2 in the name of 2nd defendant the plaintiff has submitted no objection affidavit to the concerned authorities." Further, P.W.1 has stated in cross examination that: "It is false to suggest that suit properties are not joint family properties as on the date of filing of this suit. It is true to suggest that there was no such gift deed is in existence alleged to have been executed on 22.12.2006. It is false to suggest that the will dated 04.04.2005 is also applicable to the plaintiff. I do not know suit filed by one Amarjith Singh against the plaintiff in year 1993." The defendants have adduced evidence of witness by name B.S.VijayaKumar, as D.W.1 who has stated in examination- in- chief that:
"A.N.Devaraj executed a last Will and testament dated 04.04.2005 in the presence of C.Jadiyappa and myself. I further submit that, at the behest of A.N.Devaraj, Jadiyappa and myself signed as a witness in his presence to the Will, dated: 04.04.2005 executed by A.N.Devaraj. I submit A.N.Devaraj was hale, healthy and was in sound mind read over and explained the contents of the Will 54 O.S.No.62/2015 dated 04.04.2005 to me and C.Jadiyappa. A.N.Devaraj signed the Will dated 04.04.2005 in the presence of myself and C.Jadiyappa. Thereafter simultaneously I and C.Jadiyappa attested signature to the Will dated 04.04.2005 in the presence of A.N.Devaraj at the same time. I further submit that, I can identify my signatures as well as signature of A.N.Devaraj and C.Jadiyappa."
The D.W.1 has admitted in cross examination that: "I came to know that Ex.D.32 is a will after it was notarized which was informed to me in the residence of Devaraj. Prior to that I have no knowledge that Ex.P32 is a Will." The defendant No.2 is examined as D.W.2 and D.W.2 has reiterated averments of written statement and additional written statement. The D.W.2 has admitted in cross examination that: "ನ.ಡ 32 ಎ.ಸ. ದದದವರರಜಜ ಎನನನವವರ ಹದಸರನಲಲದದ ಎಎದರದ ಸರಕಕ ಹಹದನ ಆದರದ ಅದನ ಬದರಳಚನಚ ತಪಪನಎದ ಆಗದದ. ನ.ಡ.32 ರ ಕದಕನದಯ ಪಪಟದಲಲ ದನರಎಕವನನನ ತದದ ಬರದಯಲರಗದದ ಎಎದರದ ಸರಕಕ ನನಡಯನತರತರದ ಅದನನನ ನದಕದಟರಯವರನ ಬರದದರನತರತರದ. ಸದರ ನದಕದಟರಯವರ ಹದಸರನ ಪರಮದಶಶರಪಪ ಎಎದನ ಇರನತತದದ. ಸದರ ಪರಮದಶಶರಪಪರವರನನನ ಇದನವರದಗಕ ನರನನ ನದಕದಡಲಲ ಎಎದರದ ಸರಯಲಲ, ನರನನ ನದಕದಡರನತದತದನದ. ನರನನ ಯರವ ವರರ ಮತನತ ತಎಗಳನ 55 O.S.No.62/2015 ನದಕದಡದದದದನದ ಎಎದನ ಹದದಳಲರಗನವಪದಲಲ. ನ.ಡ.7 ಮತನತ 32 ರಲಲ ಪರಮದಶಶರಪಪನವರ ಸಹಗಳನ ವವತರವಸ ಇವದ ಎಎದರದ ನನಗದ ಗದಕತತಲಲ." Further, D.W.2 has admitted in cross examination that: "ನ.ಡ.2 ನನನ ಮರಡನವ ಸಎದರರದಲಲ ನನನ ಅಕಕ ಲರವಣವ ಪಪಸರದಜ ಅಪರಪಪದತಯರಗದದಳನ. ನ.ಡ.2 ರಲಲ ಲರವಣವ ಪಪಸರದಜ ರವರಗದ ಕದಕಡಬದದಕದಎದನ ಹದದಳದ ಭರಗವನನನ ಇವತತನವರದಗದ ಕದಕಟಟಲಲ ಎಎದರದ ಸರಯಲಲ." Further, D.W.2 has admitted in cross examination that: "ನ.ಡ.32 ರಲಲರನವ ನದಕದಟರ ವಕದಲರರದ ಪರಮದಶಶರಪಪ ರವರ ಸಹಗಕ ನ.ಡ.6 ಮತನತ 7 ರಲಲರನವ ಅಫಡವಟಜ ನಲಲರನವ ನದಕದಟರ ಪರಮದಶಶರಪಪರವರ ಸಹಗಕ ಹರಗಕ ನ.ಪ.19 ರಲಲರನವ ನದಕದಟರ ವಕದಲರರದ ಪರಮದಶಶರಪಪರವರ ಸಹಗಕ ವವತರವಸವದದ ಎಎದರದ ಸರಕಕಯನ ಅದನನನ ಪರರಎರರಸ ಇರಬಹನದನ ಅದನನನ ಬದದರದ ಬದದರದ ವರರಗಳಲಲ ಮರಡರನತರತರದ ಎಎದನ ನನಡಯನತರತರದ . ನ.ಪ.19 ರಲಲರನವ ನದಕದಟರ ವಕದಲರರದ ಪರಮದಶಶರಪಪರವರ ಸಹಯನ ಅಸಲಯರಗದನದ ನ.ಡ.6, 7 ಮತನತ ನ.ಡ.32 ರಲಲ ಕಎಡನಬಎದರನವ ನದಕದಟರ ವಕದಲರರದ ಪರಮದಶಶರಪಪರವರ ಸಹಯನ ಸಸಷಟಸದನದ ಎಎದರದ ಸರಯಲಲ. ನ.ಡ.32 ಮರಣ ಶರಸನವನನನ ನನನ ತಎದದಯವರನ ಮರಡಕದಕಟಟಲಲ ಮತನತ ಅದನನನ ನರನನ ಸಸಷಟ ಮರಡದದದದನದ ಎಎದರದ ಸರಯಲಲ". The defendants have adduced evidence of witness by name Rajendra Prasad as D.W.3. The defendants have adduced evidence of witness by name B.V.Veena as D.W.4. The defendants have adduced evidence of witness by name A.C.Santosh S/o. 56 O.S.No.62/2015 A.N.Chandre Gowda as D.W.5. The D.W.5 has admitted in cross examination that: "ದದದವರರಜನರವರಗದ ಅವರ ಸಶಎತ ಮಗಳರದ ವರದಗದ ಯರವಪದದದ ಸಶತತನನನ ಕದಕಡಬರರದನ ಎಎಬ ಉದದದದಶವತನತ ಎಎದರದ ಸರಕಕಯನ ಅದದಲಲದರ ಬಗದಗ ನನಗದ ಗದಕತತಲಲ ಎಎದನ ನನಡಯನತರತರದ. ಮಗಳಗದ ಕದಕಡಬರರದನ ಎಎಬ ಉದದದದಶದಎದಲದದ ಪಪತವರದಯವರಗದ ದದದವರರಜನರವರನ ದರನಪತಪ ಮರಡದರದರದ ಎಎದರದ ಆ ಬಗದಗ ನನಗದ ಗದಕತತಲಲ. ದದದವರರಜನರವರಗದ ಈ ಸಶತನತ ಖರದದಸಲನ ಯರವ ಮಕಲದಎದ ಹಣ ಒದಗಸದರದರದ ಎಎಬ ಬಗದಗ ನನಗದ ಗದಕತತಲಲ. ದರನಪತಪದ ತಪಶದಲನ ಆಸತಯನ ಒಟನಟ ಕನಟನಎಬದ ಆಸತ ಎಎದರದ ನನಗದ ಗದಕತತಲಲ."
33. The defendants have contended that plaintiff did not step into witness box and her husband as General Power of Attorney holder of plaintiff is examined as P.W.1 and GPA holder cannot depose in place and instead of principal. The plaintiff has denied this fact. Looking to nature of this suit, facts and circumstances of this case, the contention of defendants is not unacceptable.
34. The defendants have contended that the father of plaintiff and defendant No.2 and husband of the defendant No.1 is died on 20.03.2012 and that during his life time, Partition deed was executed between plaintiff, 57 O.S.No.62/2015 the 2nd defendant and the father Mr.A.N.Devaraj in terms of the Partition deed dated: 13.06.1974, document No.868/1974-75 Book I volume 1806 pages 138 to 145 and registered at the office of the Sub -Registrar, Shivajinagar, Bengaluru in respect of the property bearing Corporation No.73/1, Millers Road, Bengaluru and said partition deed is acted upon by the plaintiff herself. The plaintiff has contended that she was a minor at that time of execution of Partition deed - Ex.D.2. The plaintiff has contended that there was no necessity for her father to execute such a deed of partition that too when she was a minor and there was also no payment of Rs.75,000/- made to the plaintiff as stated in the Partition deed. On perusal of Ex.D.2, it is clear that plaintiff was minor at time of execution of Partition deed.
35. The defendants have contended that Mr.A.N.Devaraj during his life time has executed a Will dated: 04.04.2005, in which the property bearing No.73, Millers Road, Bengaluru has been bequeathing to the 2 nd 58 O.S.No.62/2015 defendant along with the coffee land situated at Sy.No.146, Kelegur village, Aldur Hobli, Chikkmangaluru and after the demise of Mr.A.N.Devaraj on 20.03.2012, the 2nd defendant has acquired testamentary title to the said properties and even since then, the 2 nd defendant has been exercising absolute right without any let or hindrance from anyone. The plaintiff has contended that said Will produced by the defendant No.2 is bogus Will created for the purpose of grabbing the said schedule properties.
36. The Will has to be executed in accordance with Section 63 of Indian Succession Act R/w/Section 67 and 68 of Evidence Act. Disposition must be in writing. It should be signed by testator. The execution of the Will must be attested by at least two witnesses. There is no particular form for the Will.
37. It is the primary duty of the Court to ascertain the intention of the testator. That has to be ascertained 59 O.S.No.62/2015 from the Will itself and it has to be gathered from the language of the Will.
38. The propounder has to prove the Will. There are two types of onus on the propounder:
1. he is to discharge the burden as regards the legal and valid execution of the will;
2. he is to remove the suspicious circumstances surrounding the execution of the Will so as to satisfy the consciously of the Court.
39. In order to establish the proper execution of the Will the propounder has to adduce evidence to convince the Court:
(a) the testator was in sound and disposing state of mind;
(b) the testator was free from the external influence;
(c) the testator understood the nature and effect of disposition;
(d) the testator put his signature on his own free Will;
(e) the testator signed the Will in presence of two attesting witnesses;60 O.S.No.62/2015
(f) the Will was signed by the attesting witnesses in presence of the testator;
(g) the Will was the last Will of the testator.
40. The mode of proving a Will does not ordinarily differ from that of proving any of documents except as to the requirement of attestation prescribed in case of Will by Sec. 63 of Indian Succession Act. The evidence of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the Will, proof of testamentary capacity and the signature of the testator is sufficient to discharge the onus.
41. In ascertaining the genuineness of the will, the court must satisfy its conscience that will have been executed by the testator out of his free will. The law in regard to proof of unprivileged will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. In this regard it is useful to refer Sec. 63 (C) of Indian Succession Act: 61 O.S.No.62/2015
"Section 63,-execution of unprivileged Wills- Every testator, not being a solider employed in an expedition or engaged in actual warfare, (or an airman so employed or engaged,) or a mariner at sea, shall execute his will according to the following rules:-
a ) and b).........
c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."62 O.S.No.62/2015
42. Sec. 63 of Indian Succession Act lays down the mode and manner in which the execution of an unprivileged will be to be proved. Sec. 68 of Indian Evidence Act postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that, execution of will must be proved by examining at least one attesting witness is alive subject to the process of the court and capable of giving evidence.
43. What is meant by the word attestation is defined in Sec. 3 of Transfer of Property Act, which reads as under:
"Section 3-Interpretation-clause-In this Act, unless there is something repugnant in the subject or context,-
xxx xxxx xxx "Attested", in the relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses 63 O.S.No.62/2015 each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no part icular form of attestation shall be necessary."
44. There is long line of decision bearing on the nature and standard of evidence required proving a will. It is held by the Hon'ble Supreme Court of India in AIR 1959 Supreme Court page 443 (H.Venkatachala Iyenger -Vs- B.N.Thimmajamma and others), which reads thus:
64 O.S.No.62/2015
"Evidence Act (1872), Ss. 45 and 47-
Proof of will-Onus of proof on propounder-Nature- Appreciation of
evidence-Duty of Court- (Succession Act (1925), Ss. 59 and 63)-Wills).
The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 57 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concern are made relevant. Section 68 deals with the proof of the execution of the document required 65 O.S.No.62/2015 by law to be attested; and it provides that such a document shall not be used as evidence until lone attesting witness at least has been called for the purpose of proving its execution.
These provisions prescribe the requirements and the nature of proof, which must be satisfied by the party who relies on a document in a court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the 66 O.S.No.62/2015 satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propound or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; land this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature 67 O.S.No.62/2015 and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
There may, however, because in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be 68 O.S.No.62/2015 very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document, as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to 69 O.S.No.62/2015 be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounder themselves take a prominent part in the execution of the wills which confer on them
substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that 70 O.S.No.62/2015 present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience.
The test merely emphasizes that, in determining the question as to whether an instrument produced
before the court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said 71 O.S.No.62/2015 suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties: AIR 1946 P C 156, Rel. on.
It is no doubt true that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case: Air 1929 Cal 484, Ref."72 O.S.No.62/2015
45. At this juncture it is further useful to refer the ratio laid down by Highest Court of the land in 2009 SAR (Civil) Page 173 (Lalitaben Jayantilal Popat -Vs- Pragnben Jamnadas Kataria and others) held as under:
"A) Indian Succession Act, 1925, Sec.
63 (C )- Indian Evidence Act, Sec. 68-
Requirements for proving a will-
Suspicious circumstances surrounding the execution of the will-Not explained by propounder-Will can not be said to have been legally proved-A declaration is made by the testator that he had signed before both the witnesses and only before him both the witnesses had put their signatures-Attesting witness does not say so-According to him, the testator had already put his signature-He was alone with the testator-It is evident that at that point of time another witness had to put his signature that at that point of time another witness had not put his signature on the Will-
Still his name appears at serial No.1- Held: attestation, which is mandatory 73 O.S.No.62/2015 is not proved- Will has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances.
B) Will-Proof of valid Will-It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances-Testator's declaration that he had signed before both the witness- Attesting witness does not say so-According to him the testator had already put his signature-He was alone with the testator-Suspicious circumstances surrounding the execution of the will-
Not explained by propounder-Will cannot be said to have been proved-
Held: inferences of suspicious circumstances can be drawn having regard to the evidence of attesting witness."
74 O.S.No.62/2015
46. The Hon'ble Supreme Court of India in Ramabai Padmakar patil (Dead) through LRs. And others
-Vs- Rukminibai Vishnu Vekhande and others in (2003) 8 SCC 537, has held thus:
"Before we advert to the submissions made by the learned counsel for the parties, it will be useful to briefly notice the legal position regarding acceptance and proof of a Will.
Section 63 of the Indian Succession Act deals with execution of unprivileged Wills. It lays down that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. It further lays down that the Will shall be attested by to or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and on the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. Section 75 O.S.No.62/2015 68 of the evidence Act mandates examination of one attesting witness in proof of a Will, whether registered or not".
47. Further the Hon'ble Supreme Court of India in Janki Narayan Bhoir -Vs-Narayan Namadeo Kadam-(2003) 2 SCC 91 has held thus:
"8. The say will has been duly executed the requirement mentioned in clauses (a), (b) and (c) of Section 63 of the succession Act are to be complied with i.e.(a) the testator has to sign of affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place form which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two 76 O.S.No.62/2015 or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sign the will in the presence and by the direction of the testator or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks of as to now a document required by law to be attested can be proved.
According to the said Section, a document required by law to be attested 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 77 O.S.No.62/2015 Court and capable of giving an evidence. It flows from this section that if there been an attesting witness alive capable of giving evidence and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act, does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63, Although 78 O.S.No.62/2015 Section 63 of the Succession Act re- quires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will, to put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63, viz., attestation by two 79 O.S.No.62/2015 attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also if falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under section 63 of the succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution supplement his evidence to make it complete in all respects. Where one attesting 80 O.S.No.62/2015 witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of section 68 of the Evidence Act."
48. On perusal of recitals of Ex.D.32 which demonstrates that A.N.Devaraj during his life time has executed a Will dated: 04.04.2005, in which the property bearing No.73, Millers Road, Bengaluru has bequeathed to the 2nd defendant along with the coffee land situated at Sy.No.146, Kelegur village, Aldur Hobli, Chikkmangaluru. The defendants have to prove that A.N.Devaraj had executed the Will in sound disposing state of mind. At least one attesting witness should be examined before the court. On perusal of Ex.P.19 and Ex.D.32, the signature of B.M.Parameswarappa, Advocate and Notary are different. Therefore, there are suspicious circumstances surrounding the Will. In view of Ex.P18 and Ex.P.19 and principles laid down from above referred Judgments, the defendants have not proved 81 O.S.No.62/2015 that A.N.Devaraj during his life time has executed a Will dated: 04.04.2005, in which the property bearing No.73, Millers Road, Bengaluru has bequeathed to 2nd defendant along with the coffee land situated at Sy.No.146, Kelegur village, Aldur Hobli, Chikkmangaluru.
49. The defendants have contended that during the lifetime of Mr.A.N.Devaraj, he has executed the Gift deed dated: 31.10.2006 No.2381/2006-07 Book I, recorded in CD No.CKMD 27 and registered at the office of the Sub- Registrar, Chikkmagaluru. The plaintiff has contended that the defendant No.2 has got the Item No.3 of the suit schedule property in his favour by way of Gift said to have been executed by late Sri. A.N.Devaraj vide Gift deed dated: 31.10.2006 and her father had no intention of making any such gift and the plaintiff suspects that the defendant No.2 might have got the Gift deed executed in his favour by practicing fraud, coercion and undue influence and the said Gift deed dated:
31.10.2006 is not binding on the plaintiff. On perusal of 82 O.S.No.62/2015 Ex.D.44 which shows that, A.N.Devaraj had executed gift deed in favour of defendant No.2 in respect of Item No.4 of suit schedule property. The defendants have not proved that the Gift deed dated: 31.10.2006 is valid.
50. By considering entire evidence of P.W.1 and D.W.1 to D.W.5 and documents exhibited on both sides, on close scrutiny of pleadings of both parties and on careful appreciation of evidence, the plaintiff has proved that, the suit schedule properties are joint family properties. The plaintiff has proved that the defendant No.2 created or fabricated Gift deed dated: 31.10.2006 by fraud, coercion and undue influence. The plaintiff has proved that the Registered partition deed dated:
13.06.1974 is null and void and not binding on her. The plaintiff has proved that the defendant No.2 forged and created bogus Will dated: 04.04.2005 and it is not binding on her. The defendants have not proved that Will dated:
04.04.2005 is valid. The defendants have not proved that the Gift deed dated: 31.10.2006 is valid. Further, the 83 O.S.No.62/2015 defendants have not proved that, Item No.4 is a joint family property of the plaintiff and themselves. Hence, I answer Issue No.1 to Issue No.4 in the Affirmative, Issue No.6 in the Negative, Issue No.8 in the Affirmative and Addl. Issue No.1 in the Negative.
51. ISSUE NO.5: It is the contention of defendants that the suit is barred by law of Limitation. Further, the defendants have contended that the first partition was effected in the year 1974 and the Will was executed in the year 2004 and the Gift deed was executed in the year 2006 and that suit as brought by the plaintiff for partition in respect of the plaint schedule properties, the suit of the plaintiff is barred by law of limitation. The plaintiff has denied this fact. There are no materials to prove that suit is barred. The defendants have not proved this Issue. Hence, I answer Issue No.5 in the Negative.
52. ISSUE NO.7: It is the contention of defendants that the suit is not maintainable. Further, the defendants have contended that partial partition suit is not 84 O.S.No.62/2015 maintainable. The plaintiff has denied this fact. Looking to nature of this suit, facts and circumstances of this case, the suit is maintainable. The defendants have not proved this Issue. Hence, I answer Issue No.7 in the Negative.
53. ISSUE NO.9: It is the contention of defendants that the valuation of the suit is improper and Court fee paid is insufficient. Further, the defendants have contended that the plaintiff is duty bound to value this suit under Section 24(a) of the Karnataka Court Fees and Suits Valuation Act and pay the required Court fees on the market value of the suit schedule properties. The plaintiff has denied this fact. The defendants have not proved this Issue. Hence, I answer Issue No.9 in the Negative.
54. ISSUE NO.10: The plaintiff has proved that, the suit schedule properties are joint family properties. The plaintiff has proved that the defendant No.2 created or 85 O.S.No.62/2015 fabricated Gift deed dated: 31.10.2006 by fraud, coercion and undue influence. The plaintiff has proved that the Registered Partition deed dated: 13.06.1974 is null and void and not binding on her. The plaintiff has proved that the defendant No.2 forged and created bogus will dated:
04.04.2005 and it is not binding on her. The defendants have not proved that Will dated: 04.04.2005 is valid. The defendants have not proved that the Gift deed dated:
31.10.2006 is valid. Further, the defendants have not proved that, Item No.4 is a joint family property of the plaintiff and themselves. The principles laid down in the respected Judgments relied by the learned Counsel for plaintiff are applicable under the facts and circumstance to this case. The principles laid down in the respected Judgments relied by the learned Counsel for defendants are not applicable under the facts and circumstance to this case. Hence, by applying the principles emanating from decision of Hon'ble the Supreme Court of India in (2020) 9 Supreme Court Cases 1, in the case of Vineeta Sharma -Vs- Rakesh Sharma and Others, 86 O.S.No.62/2015 the plaintiff is entitled for 1/3 rd share in the suit schedule properties. Hence, I answer Issue No.10 in the Affirmative.
55. ISSUE NO.11: The plaintiff have contended that she recently learnt that the defendants are trying to alienate the Item No.1 and 2 of the suit schedule properties without the knowledge and consent of herself to third party. The defendants have no right to alienate the plaintiff's share in the suit schedule properties. The defendants have denied these facts. The plaintiff has proved that she is entitled for 1/3 rd share in the suit schedule properties. In a suit for permanent injunction what are required are, the possession of the plaintiff and interference by the defendants. It is also well-settled legal principles that, possession is nine points in law. A person who is in possession of the immovable property can very well protect the same by seeking an injunction against any person in the world other than, the true owner. This proposition finds support from the ratio laid down by the Hon'ble Supreme Court of India in 1999 (4) 87 O.S.No.62/2015 SCC page 403 (Prataprai N.Kothari -Vs- John Braganza) wherein it is held that:
"A. Specific Relief Act, 1963-Ss. 5 and 38-Possessory title-It is a principle of law that a person who has been in long continuous possession of an immovable property can protect the same by seeking an injunction against any person in the world other than the true owner-It is also well settled that even the owner of the property can get back his possession only by resorting to the due process of law-Held, the conclusions of the Single Judge of the High Court were vitiated, on facts, by his view that defendant-appellant had title and that possession followed title-
Thus the Division Bench of the High Court in LPA rightly set aside the appellate judgment of the Single Judge and restored that of the trial court partly decreeing the suit-Doctrines- Possession is nine points in law-Words and phrases-"Possession."88 O.S.No.62/2015
56. Hence in view of the above referred decision and well-settled legal principles and totality of circumstances, the plaintiff has proved that she is in possession and enjoyment of the suit schedule properties. Hence, the plaintiff is entitled for the relief of permanent injunction. Further, the plaintiff is entitled for the relief of Mesne profits. In the result, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed.
The plaintiff is entitled for 1/3rd share in suit schedule properties.
Parties are directed to bear their own costs.
Office to draw preliminary decree and thereafter, register a petition under Order XX Rule 18 C.P.C for drawing final decree, in terms of direction of Hon'ble Apex Court in the judgment of Kattukandi Edathil Krishnan and another Vs. 89 O.S.No.62/2015 Kattukandi Edathil Valsan and others (2022 SCC Online SC
737).
The defendants, their agents, representative or assigns are hereby restrained by way of permanent injunction from alienating or encumbering or creating any charge on the suit schedule properties in any manner.
There shall be an enquiry with regard to mesne profits under Order XX Rule 12 of C.P.C. in separate proceedings, if the plaintiff so desires.
(Dictated to the Stenographer Grade-III directly on computer online, typed by her corrected by me and then pronounced in the open court on this the 10th day of September, 2024) (SHIVANAND MARUTI JIPARE) LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU.90 O.S.No.62/2015
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:
P.W.1 : G.V.R.Prasad S/o. late G.V.S.Marulaiah. LIST OF WITNESSES EXAMINED FOR DEFENDANTS:
D.W.1 : B.S.Vijayakumar.
D.W.2 : A.D.Surop.
D.W.3 : Rajendra Prasad. J.
D.W.4 : B.V.Veena.
D.W.5 : A.C.Santosh
S/o. late A.N.Chandre Gowda.
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P.1 General Power of Attorney.
Ex.P.2 Release deed.
Ex.P.3 Certified copy of Partition deed.
Ex.P.3(a) Typed copy of Ex.P.3.
Ex.P.4 RTC extract.
Ex.P.5 Death certificate of A.N.Devaraj.
Ex.P.6 RTC extract.
Ex.P.7 and 8 Khatha Certificates.
Ex.P.9 and 10 Khatha extracts.
Ex.P.11 Certified copy of the Gift deed.
Ex.P.12 RTC extract.
Ex.P.13 Mutation Register extract.
91 O.S.No.62/2015
Ex.P.14 Passport of the plaintiff.
Ex.P.15 Certified copy of deed of Lease.
Ex.P.16 True copy of deed of
Amalgamation.
Ex.P.17 True copy of Affidavit.
Ex.P.18 RTI letter.
Ex.P.19 Letter of returns of
B.M.Parameshwarappa.
Ex.P.20 Khatha certificate.
Ex.P.21 Khatha extract.
Ex.P.22 Khatha certificate.
Ex.P.23 Khatha extract.
Ex.P.24 to 31 Property Tax receipts.
Ex.P.32 Gift deed.
Ex.P.33 Special intimation letter dated:
10.06.2010.
Ex.P.34 Khatha certificate.
Ex.P.35 Khatha extract.
Ex.P.36 Khatha Certificate.
Ex.P.37 to 41 Property Tax paid receipts.
Ex.P.42 Encumbrance certificate.
Ex.P.43 Sanctioned plan.
Ex.P.44 Letter for rectification of sketch.
Ex.P.45 Receipt issued by BBMP.
92 O.S.No.62/2015
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:
Ex.D.1 Certified copy of the Sale Deed.
Ex.D.2 Original partition deed.
Ex.D.2(a) &(b) Signatures.
Ex.D.3 Certified copy of the orders passed by
Joint Commissioner of BBMP.
Ex.D.4 Certified copy of the order sheet in C.C.
No. 3764/2017.
Ex.D.5 Certified copy of complaint in P.C.R
No.12846/2016.
Ex.D.6 & 7 True copies of Affidavits.
Ex.D.8 Certified copy of proceeding before
Joint Commissioner of BBMP.
Ex.D.9 Endorsement.
Ex.D.10 Certificate.
Ex.D.11 to 22 Tax paid receipts.
Ex.D.23 to 30 Income tax paid challans.
Ex.D.31 Aadhaar card of D.W.1.
Ex.D.32 Will dated: 04.04.2005.
Ex.D.32(a) to (g) Signatures.
Ex.D.33 Postal cover.
Ex.D.34 Copy of summons.
Ex.D.35 General Power of Attorney.
93 O.S.No.62/2015
Ex.D.36 Death certificate.
Ex.D.37 Notarized copy of Election ID card.
Ex.D.38 Certified copy of Sale deed dated:
29.10.1977.
Ex.D.39 Certified copy of Judgment in O.S.
No.4021/1993.
Ex.D.40 Certified copy of decree in
O.S.No.4021/1993.
Ex.D.41 Certified copy of plaint in
O.S.No.4021/1993.
Ex.D.42 Certified copy of written statement of
defendant No.1 in O.S. No.4021/1993.
Ex.D.43 Certified copy of written statement of defendant No.2 in O.S. No.4021/1993 Ex.D.44 Original Gift deed dated: 31.10.2006.
Ex.D.44(a) Signature.
Ex.D.45 Letter for producing scanned copies.
Ex.D.46 List of the scanned documents attested
by the ARO.
Ex.D.47 Notarized copy of Aadhaar card.
(SHIVANAND MARUTI JIPARE)
LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU.