Bangalore District Court
Smt. Kanthammal vs Sri.M.Govindaraj on 31 January, 2020
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 31st day of January 2020.
PRESENT: Smt.PREETHI K.P B.A.,LL.M.,
XI Addl.City Civil Judge, B'lore city.
O.S.No.6078 of 2009
C.C.H.8
Plaintiff/s: Smt. Kanthammal
aged about 49 years,
D/O Late Manickam,
W/O C.Govindan,
residing at No.19, 39/2,
10th "C" Main Road, 6th Block,
Rajajinagar, Bengaluru -10
(By Sri. H.S.S Advocate)
Vs.
Defendant/s: 1. Sri.M.Govindaraj,
aged about 47 years,
S/O Late Manickam, Residing at
NO.118/8-1, 2nd stage, 3rd Cross,
Okalipuram, Bengaluru -21
2. Smt. Kasiyamma,
aged about 56 years,
D/O Late Manickam,
W/O Rajamani,
residing at No.146,
2nd Main Road,
Narasimhaswamy extension,
Nandini Layout, Bengaluru
(By Sri. E.G.K. advocate for D.1 and
Sri. B.J. for D.2. )
Date of the institution of suit: 15.9.2009
Nature of the suit: Partition
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O.S.No.6078 of 2009
Date of the commencement of 20.7.2011
recording of evidence:
Date on which the judgment was 31.01.2020
pronounced:
Total duration Year/s Month/s Day/s
10 04 16
XI Addl.City Civil Judge,
B'lore city.
JU DG M E NT
This is a suit filed by the plaintiff for the relief of
partition and separate possession of the suit schedule
properties by metes and bounds granting 1/3rd share to
plaintiffs in the suit schedule properties by dividing the
metes and bounds in the suit schedule property and put
the plaintiff into her exclusive possession of her share and
direct to enquire into the mesne profits and grant the
plaintiff mesne profits of the income derived by the
defendants from the rents and other returns from the suit
schedule properties and and decree for permanent
injunction restraining the defendants from alienating ,
dispossessing or otherwise creating any sort of third party
rights over the suit schedule property and such other
reliefs.
2. The case of the plaintiffs is that the relationship
between the plaintiff and defendant No.1 and 2 as shown
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O.S.No.6078 of 2009
in the genealogical table and the plaintiff and defendant
No.1 and 2 are all members of undivided Hindu Joint
Family who are in the joint possession and enjoyment of
the joint family immovable properties. As mentioned in the
genealogical table, deceased late Silumbu Goundar was
the propositus of the joint family of the plaintiff and
defendant No.1 and 2. The parties are all children of late
Manickam and his wife Late Smt. Thayamma. Late
Manickam died intestate on 16.9.2005 and likewise,
Smt. Thayamma died intestate on 27.7.2009 and the
parties are the legal heirs to inherit movable and
immovable properties of late Manickam and his wife late
Smt. Thayamma. The father of the parties late Manickam
was doing the business of milk diary and was also a
building contractor. Late Manickam and the 1st defendant
were jointlyh doing the business. The father of parties i.e.,
Late Manickam during his life time had purchased an
immovable property bearing old No.119 situated at 2 nd
cross and 3rd cross, 2nd stage, Okalipuram, Bengaluru
measuring an extent of east-west 40 ft., and north-south
60 ft., and herein after called as suit schedule "A"
property. Late Manickam had purchased the suit
schedule "A" property by the joint family funds through a
registered absolute sale deed dated 27.3.1968 registered
before the Sub Registrar, Srirampuram, Bengaluru. The
katha and other revenue records pertaining to the suit
schedule property is in the name of late Manickam. During
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O.S.No.6078 of 2009
the lifetime of late Manickam had purchased an immovable
property bearing Municipal No.51 situated at 2 nd Main
Road, Ramachandrapuram, Bengaluru measuring an
extent of east-west 60 ft., and north-south 30 ft., which is
herein after called as suit schedule "B" property and this
property was purchased in the name of the mother of the
parties i.e.,late Smt. Thayamma by the joint family funds
through a registered absolute sale deed dated 19.10.1960
registered before the Sub Registrar office, Srirampuram,
Bengaluru . The katha and other revenue records
pertaining to the suit schedule property is in the name of
Late Smt. Thayamma. It would be pertinent to state that
the late Smt. Thayamma was only a house wife and was
having no independent income of her own and apart from
having the immovable properties as aforesaid the joint
family of the plaintiff and defendant No.1 and 2 also
possess certain valuable movable articles which are
ancestral, articles such as gold jewelry of about 60 savaran
and silver articles of 15 kg and joint family funds of more
than Rs.5,00,000/- by way of cash which is called as suit
schedule "C" property . The 2 nd defendant is also mother-
in-law of 1st defendant. The 1st defendant is married to the
daughter of the 2nd defendant by name R.Vijaya. It is
submitted that subsequent to the death of father of the
parties i.e., late Manickam, the plaintiff and defendants
along with their mother Late Thayamma were living as the
members of the Hindu undivided joint family by jointly
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O.S.No.6078 of 2009
enjoying the suit schedule properties and furhter it was the
will and wish of late Manickam and also Late Thayamma
that all the joint family properties be equally divided
between their children, but unfortunately she suddenly
passed away leaving behind the parties to inherit and
succeed all the properties and subsequent to the death of
Late Thayamma the defendants have developed a strange
kind of neglected attitude and disliking towards the
plaintiff. The plaintiff in the last week of August 2009
approached the defendants and sought for an explanation
for their strange behaviors and demanded the defendants
to give plaintiff her share in the joint family properties by
affecting an equal partition in the movable and immovable
properties of late Manickam and his wife late Smt.
Thayamma. The defendants flatly refused and declined to
give the plaintiff any share in the joint family property and
on the other hand the defendants have asked the plaintiff
not to step into the suit schedule properties as the same
absolutely belongs to them and the defendants hatching a
conspiracy to deprive the plaintiff of her share in the joint
family properties. The 2nd defendant intends and wants to
see that all the properties left behind by late Manickam
and his wife late Smt. Thayamma is only enjoyed by her
and her son-in-law i.e., the 1st defendant. The defendants
have no right to deny the share of the plaintiff rights and
share in the suit schedule properties. The defendants are
exclusively enjoying the rents accrued from the suit
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O.S.No.6078 of 2009
schedule "A" and "B" properties since from the death of
Late Manickam. Therefore the defendants are liable to pay
mesne profits to the plaintiff and the plaintiff is entitled to
1/3rd share and the defendant No.1 and 2 are also entitled
for 1/3rd share each in the suit schedule properties as the
successors and legal heirs of the deceased late Manickam
and his wife Late Smt. Thayamma. Once again on
5.9.2009 asked and demanded for partition and separate
possession of the suit schedule properties to the defendant
No.1 and 2. Shockingly, the defendants told the plaintiff
that she has no share in the suit schedule properties.
Thereafter plaintiff reliably learnt that the defendants have
got created certain sham, nominal and fictitious
documents in respect of the suit schedule properties only
with a sole intention to deny this plaintiff her legitimate
share in the suit schedule properties. However the same is
not binding over the plaintiff and nor it can take away the
share of the plaintiff in the suit schedule properties. The
defendant No.1 and 2 are in the joint possession and
enjoyment of the suit schedule properties as the co-owners
and members of the Hindu undivided joint family.
Therefore, plaintiff has brought this suit for partition and
separate possession of her 1/3rd share in the suit schedule
properties. The plaintiff is under an imminent and serious
threat of alienation of the suit schedule properties by
defendants and if the defendants are not prevented from
alienating or creating any third party rights over the suit
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O.S.No.6078 of 2009
schedule property. The plaintiff would be put to
irreparable loss, injury, hardship and grave injustice which
cannot be compensated in terms of money, at a later stage.
Further it may also further lead to multiplicity of
proceedings. The balance of convenience is completely in
favour of plaintiff and the plaintiff has made out a prima
facie case for granting exparte ad-interim order of
temporary injunction against the defendants. The cause of
action for the suit arose on 5.9.2009 when the plaintiff
finally demanded for partition and separate possession of
the suit schedule properties to the defendants and when
the defendants told the plaintiff that she has no share in
the suit schedule properties and subsequently within the
jurisdiction of this court. All the original title deeds and
records pertaining to the suit schedule properties are in
the custody of defendants. Hence, plaintiff prayed to
decree the suit.
3. In response to the summons issued in this case,
defendant No.1 and 2 appeared through counsel and filed
their written statement separately. Defendant No.1 admits
tht the parties are all children of late Manickam and his
wife late Smt. Thayamma and late Manickam died on
16.9.2005 and smt. Thayamma died on 27.7.2009 and he
admits that late Manickam was doing business of milk
diary and the milk diary business was the family business
of the parties, wherein not only late Manickam but his wife
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O.S.No.6078 of 2009
late Thayamma and their children were also involved in the
milk diary business, the 1st defendant, plaintiff and the 2nd
defendant were also working in the said dairy business,
and 1st defendant and late Manickam were both exclusively
doing the business of building construction as contractors.
This defendant is instrumental in development of the so
purchased property and he has taken lot of pains to
improve the schedule properties. He admits that 1 st
defendant is married to the daughter of 2 nd defendant by
name R.Vijaya after the death of the parents, all the
parties have succeeded as legal representatives and it was
the desire of the parents that all their childrern shall enjoy
the property amicably and peacefully. And this defendant
has no objection to give nominal share to the plaintiff as it
was the desire of the parents of the parties that the plaintiff
shall also get some share in the suit schedule movable and
immovable properties. 1St defendant contends that the
plaintiff has got a share in the suit schedule property, but
not an equal share and plaintiff and the 2 nd defendants are
both entitled for nominal share as their marriage was
performed in a grand manner by spending huge sum at the
time of marriage and they were given gold jewelries and
other costly gifts and 1 st defendant is entitled for an
equityable share for the hard work which he has
undertaken for improvement of the schedule properties and
1st defendant contends that the parties to the suit are in
joint possession of the suit schedule properties as legal
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O.S.No.6078 of 2009
representatives and class-I heirs of their parents and he
specifically denied the other allegations made in the
plaint. Hence, he prayed to dismiss the suit.
3(a) 2nd defendant has filed his written statement
separately and she admitted that the plaintiff and the
defendants are the children of late Thayamma and late
Manickam and his father and mother i.e., Late
S.Manickam died on 169.2005 and his mother Thayamma
died on 27.7.2009 and he admits that the father of the
parties late S.Manickam was doing the business of milk
diary and was also doing a building contractor and he
admits that during the lifetime of late S.Manickam he had
purchased an immovable property bearing No.119 situated
at 2nd cross and 3rd cross, 2nd stage, Okalipuram,
Bengaluru measuring east-west 40 ft., and north-south 60
ft., which is herein after called as suit schedule "A"
property and he admits that late Manickam had purchased
the suit schedule "A" property which is registered in the
office of Sub Registrar Srirampuram, Bengaluru and he
contends that S.Manickam was earning money from milk
dairy business and had acquired the suit schedule "A"
property on 27.3.1968 of his own self acquired property
and said property purchased from his own savings and
funds. During the life time of S.Manickam, he had
executed a Will dated 29.1.2003 in respect of the suit
schedule "A" property bequeathing in favour of his grand
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O.S.No.6078 of 2009
son i.e., G.Vinod son of defendant No.1 and his daughter in
law of Smt. E.Vijaya equally. The said Will dated
4.11.1992 registered in the office of Sub Registrar,
Srirampura, Bengaluru . After the death of Manickam,
Sri. G.Vinod and Smt. R.Vijaya became to absolute owner
of the suit schedule "A" property and they are equal
possession of suit schedule "A" property and the
arrangement regarding the katha transfer in respect of the
suit schedule "A" property is in progress. In the other
words, suit schedule "A" property cannot be taken into
consideration for partition and it is self acquired property
of S.Manickam. The defendant No.2further contended
that his mother Thayamma was also doing milk dairy
business along withg her husband S.Manickam. In the
said business, Thayamma earned money and saved money
for herself. Out of the said savings and funds, Thayamma
acquired the suit schedule "B" property from Smt.
Hanumakka registered before the office of Sub Registrar,
Bangaluru North Taluk and it is self acquired property of
Thayamma and during the life time of Thayamma, she had
executed a two Will both dated22.5.1981 in respect of the
schedule "B" property registered in the office of Sub
Registrar, Srirampuram, Bengaluru. Subsequently, on
1.11.1987 Smt. Thayamma revoked the aforesaid two Wills
and the revocation of Will was registered in the office of
Sub Registrar, Srirampuram, Bengaluru and thereafter,
Smt. Thayamma executed another Will dated 29.1.2005
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O.S.No.6078 of 2009
registered in the office of Sub Registrar, Srirampuram,
Bengaluru under which she has revoked the earlier Will
dated 1.11.1987 and further bequeathing the schedule
"B" property in favour of Sri.M.Govindaraj. Subsequently
Smt. Thayamma revoked the Will by way of revocation of
Will dated 18.12.2006 and on the same day
Smt.Thayamma executed two separate Wills i.e.,
"(a) A Will dated 18.12.2006 registered as document
No.SRI-3-00250-2006-07 in Book III, stored in CD No.SRID
60 registered in the office of Sub Registrar, Srirampuram,
Bengaluru bequeathing the southern portion of schedule
"B" property measuring east-west 60 ft., and north-south
15 ft., in favour of Sri.M.Govindaraj i.e. defendant No.1
(b) A Will dated 18.12.2006 registered as document
No.SRI-3-00250-2006-07 in Book III, stored in CD No.SRID
60 registered in the office of Sub Registrar, Srirampuram,
Bengaluru bequeathing the northern portion of schedule
"B" property measuring east-west 60 ft., and north-south
15 ft., in favour of Smt. G.Kavitha (grand daughter of
Smt.Thayamma and daughter of Smt. R.Vijaya and
Sri.M.Govindaraju.)"
3(b) Defendant No.2 further contended that
S.Manickam died on 16.9.2005 and Smt.Thayamma died
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O.S.No.6078 of 2009
on 27.7.2009 and the two Wills dated 18.12.2006
registered have come into operation and under which the
schedule "A" property has been acquired by Sri.Vinod and
Smt. R.Vijaya and schedule "B" property has been
acquired by Smt. G.Kavitha . In the circumstances, the
plaintiff do not get any manner of right, title and interest
either in respect of schedule "A" property or in respect of
any portion of schedule "B" property. In other words, the
schedule "A" and "B' properties mentioned in the schedule
cannot be taken into consideration for partition and it is
the self acquired property of Smt. Thayamma and during
the marriage of the plaintiff, Sri.Manickam and Thayamma
have given gold jewelery and silver articles as per the
customs and she admits that she is also the mother-in-
law/sister of defendant No.1. and defendant No.1 is
married to the daughter of defendant No.2 by name
R.Vijaya and defendant No.2 further submits that plaintiff
is very much aware that a Will dated 29.1.2003 has been
executed by S.Manickam bequeathing the suit schedule "A"
property in favour of his grand son G.Vinod measuring
east-west 40 ft., and north-south 30 ft., to his daughter in
law and plaintiff is also aware that another Will dated
18.12.2006 has been executed by Thayamma bequeathing
the suit schedule "B" property in favour of his grand
daughter G.Kavitha. The schedule "A" and "B' properties
mentioned in the schedule cannot be taken into
consideration for partition. In virtue of the above Wills,
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O.S.No.6078 of 2009
G.Kavitha became the absolute owner of the schedule "B"
property and R.Vijaya and G.Vindo are the absolute owners
of the schedule "A" property possessing valid marketable
right, title and interest over the same and 2 nd defendant
specifically denied all the allegations made in the plaint
and prays to dismiss the suit with costs.
4. On the basis of the above pleadings of the parties,
my predecessor in office has framed the following issues
and additional issues. While going through the pleadings it
is noticed that alleged will dated 29.1.2003 by Manickam
is favour of G.Vinod and R.Vijaya and not in favour of
defendant No.2 1 but by my learned predecessor in office in
additional Issue it was mentioned in his favour instead of
in favour of G.Vinod and R.Vijaya. But parties by
understanding the pleadings have led their evidence.
Therefore this clerical mistake has to be corrected since it
is observed during the course of judgment. Hence, it is
accordingly corrected as of G.Vinod and R.Vijaya in the
place of his favour in additional Issue . The issues and
additional issues are as follows:-
1. Whether the plaintiff prove that plaintiff and
defendants along with their mother late
Smt. Thayamma were the members of Hindu
undivided joint family and the suit schedule
properties are the undivided joint family
properties?
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O.S.No.6078 of 2009
2. Whether the plaintiff proves that she is
entitled for 1/3 share in the suit schedule
properties?
3. Whether defendant No.2 proves that the suit
"A" schedule property was the self acquired
property of S.Manickam and therefore the
same is not liable for partition?
4. Whether defendant No.2 proves that Smt.
Thayamma had executed a Will dated
18.12.2006 bequeathing the southern portion
of "B" schedule property measuring east-west
60 ft., and north-south 15 ft., in favour of
defendant No.1 M.Govindaraj?
5. Whether defendant No.2 proves that Smt.
Thayamma had executed a Will dated
18.12.2006 bequeathing the northern portion
of "B" schedule property measuring east-west
60 ft., and north-south 15 ft., in favour of
Smt. G.Kavitha i.e., the granddaughter of
Smt. Thayamma and daughter of defendant
No.1?
6. Whether the plaintiff is entitled for partition
and separate possession of her 1/3rd share
from the suit schedule properties?
7. Whether the plaintiff is entitled for mesne
profits?
8. What decree or order?
Additional issue framed on 28.6.2017:-
"Whether defendant No.2 proves that late
S.Manickam executed Will in favour of G.Vinod
and R. Vijaya on 29.1.2003 as contended in the
written statement?"
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O.S.No.6078 of 2009
5. In order to prove the case of plaintiffs , plaintiff
herself is examined as P.W.1 and got marked Ex.P.1 to
P.4. On behalf of defendants, defendant No.2 is examined
herself as DW.1 and two more witnesses are examiend as
DW.2 and 3 and got marked Ex.D.1 to D.9
6. Heard arguments of both respective counsel.
7. My findings on the above issues are as under:-
Issue No.1: Partly in affirmative
Issue No.2: Partly in affirmative
Issue No.3: Partly in affirmative
Issue No.4: In negative
Issue No.5: In negative
Issue No.6: Partly in affirmative;
Issue No.7: Kept open for adjudication in Final Decree
Proceedings
Additional Issue: In negative
Issue No.8: As per final order for the following reasons:
R E A S ON S
8. Issue No.1: The plaintiff who was examined as
P.W.1 by filing examination-in-chief by way of affidavit and
got marked Ex.P.1 to P.4(a). Ex.P.1 is genealogical tree,
Ex.P.2 death certificate of Smt. Thayamma, Ex.P.3 certified
copy of registered sale deed, Ex.P.3(a) typed copy of sale
deed, Ex.P.4 certified copy of sale deed, Ex.P.4(a) is typed
copy of sale deed. PW.1 asserts that the defendant No.1 and
2 are all members of undivided Hindu Joint Family and they
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O.S.No.6078 of 2009
are in joint possession and enjoyment of joint family
immovable property i.e., the suit schedule property. P.W.1
also asserts that her grandfather late Silumbu Goundar was
the propositus of their joint family. The parties are all
children of late Manickam and his wife Late
Smt. Thayamma. Late Manickam died intestate on
16.9.2005 his wife , Smt. Thayamma also died intestate on
27.7.2009 and plaintiff and defendants are the legal heirs
of successors to inherit movable and immovable properties
which are left behind by late Manickam and his wife late
Smt. Thayamma. The father of P.W.1 i.e., late Manickam
was doing the business. During the life time of Manickam
he had purchased an immovable property situated at 2 nd
cross and 3rd cross, 2nd stage, Okalipuram, Bengaluru
measuring an extent of east-west 40 ft., and north-south 60
ft. which was described as suit schedule "A" property. PW.1
also asserts that his father during his life time had also
purchased an immovable property bearing Municipal
No.51 situated at 2nd Main Road, Ramachandrapuram,
Bengaluru-21 measuring an extent of east-west 60 ft., and
north-south 30 ft., which is described as suit schedule "B"
property . The said schedule "B" property was made in
name of Smt. Thayamma by the joint family funds . The
said Thayamma was a house wife and having no
independent income of her own and she was depending on
Manickam ie.., father of plaintiff and defendant. Apart from
immovable property, the joint family property of th plaintiff
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O.S.No.6078 of 2009
and defendant had also possessed valuable movable articles
of 15 kg silver , gold jewelry and joint family funds of
Rs.5,00,000/- by way of cash. The 2 nd defendant's daughter
Vijaya was married to first defendant. After the death of her
father Manickam, the parties with their mother
Smt.Thayamma are living as a member of Hindu undivided
joint family by jointly enjoying the suit schedule property.
The plaintiff asserts that the plaintiff and defendants were
entitled 1/3rd share in the suit schedule property as the
successor and legal heir of late Manickam and late
Thaymma.
9. The issue cast upon the plaintiff to prove whether
plaintiff and defendants and their mother Smt.Thayamma
were the members of Hindu Joint Family. The plaintiff and
defendant No.1 and 2 are the children of late Manickam and
Smt.Thayamma. The relationship of plaintiff and defendants
is not in dispute . Under Hindu Law, every hindu family is
presumed to be the joint family. They are joint in food,
residence and worship, but there is no presumption that the
property held by the Hindu Joint family is a joint family
property. The question of whether the property is joint
family property is one of the fact to be decided on evidence
without reference to any presumption. The party asserting
that a property is a joint family property must establish
that at the time of acquisition of said property, the joint
family had sufficient nucleus to purchase suit schedule
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O.S.No.6078 of 2009
property. When once the possession of adequate nucleus to
purchase the property is established and proved the onus
shifts on person who claims the property is self acquisition.
As the relationship between the plaintiff and defendants are
admitted it is proved that the plaintiff and the defendants
along with their mother Smt. Thayamma were the members
of Hindu joint family, but the burden of proving that the
suit schedule properties are the joint family properties is on
the plaintiff, who asserts the suit schedule property are
purchased out of joint family funds . The burden cast upon
the plaintiff to prove and establish her alleged contribution
in acquisition of suit schedule property and so also she is
under obligation to show that the suit schedule property
was acquired out of joint family nucleus. Therefore the
plaintiff has to establish before the court that the joint
family had sufficient nucleus at the time of purchase of suit
schedule property. The plaintiff asserts that late Manickam
was doing the business of milk diary and also a building
contractor. Late Manickam and first defendant were jointly
doing the business. The said late Manickam during his life
time had purchased immovable property bearing old
No.119(New No.119/8 & 119/8-1) situated at 2 nd cross,
and 3rd cross, 2nd stage, Okalipuram, Bengaluru -560021
measuring an extent of east-west 40 ft., and north-south 60
ft., which is described as "A" schedule property. The late
Manickam had purchased schedule "A" property by the joint
family funds through a registered absolute sale deed dated
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O.S.No.6078 of 2009
27.3.1968. It is also asserted by the plaintiff that her father
late Manickam during his life time had also purchased an
immovable property bearing Municipal No.51 situated at
2ND Main Road, Ramachandrapuram, Bengaluru -560021
measuring an extent of east-west 60 ft., and north-south 30
ft., which is described as "B" schedule property, but the
purchase of the said property is made in the name of her
mother Smt.Thayamma by joint family funds through a
registered sale deed. At this juncture, it is relevant to refer
some of the statement of P.W.1 made during the course of
her cross-examination, wherein P.W.1 states as follows:-
"ನನನ ತತದದ ಮಮಣಕಕತ ಮತತತ ತಮಯ ತಮಯಮಮ ಇಬಬರರ ಸದಸರ
ಹಮಲನ ವಮಕಪಮರ ಮಮಡತತತದದರತ ಅತದರದ ಸರ. ಆದದರತದ ಅವರಗದ ಒಳದಳ
ಸತಪಮದನದ ಇತತತ ಅತದರದ ಸರ. ನಮಮ ತತದದಯವರತ ಗತತತಗದದಮರರಮಗ
ಕದಲಸ ಮಡತತತದದರತ ಅತದರದ ಸರ. ಆದದರತದ ನಮಮ ತತದದ ಒಳದಳ
ಸತಪಮದನದ ಮಮಡತತತದದರತ ಅತದರದ ಸರ.
ದಮವಮ ಎ ಷದಡರಕಲಲ ಸಸತತನತನ ದನಮತಕ 23 -7-1968 ರಲಲ
ನಮಮ ತತದದ ತಮಯ ತಮಮ ಸಸತತ ಆದಮಯದತದ ಕದರತಡತಕದರತಡದದರತ
ಅತದರದ ಸರ . ದನಮತಕ 19-3-1960 ರಲಲ ನಮಮ ತಮಯ
ಹನತಮಕಕನವರತದ ದಮವಮ ಬ ಷದಡರಕಲಲ ಸಸತತನತನ
ಕದರತಡತಕದರತಡದದರತ ಅತದರದ ಸರ."
10. Therefore as per the admission made by P.W.1 her
parents Sri.Manickam and Smt.Thayamma had sufficient
income by milk vending business and her father late
Manickam was also contractor. P.W.1 specifically admits
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O.S.No.6078 of 2009
"A" and "B" schedule property purchased by their parents
are self acquired properties of Manickam and Thayamma
and she also specifically admits that on 19.3.1960 her
mother Smt. Thayamma has purchased "B" schedule
property from one Hanumakka.
11. On perusal of Ex.P.4, which is a registered sale
deed dated 19.3.1960 which was purchased by Smt.
Thayamma from one Hanumakka and ExP3 also a
registered sale deed dated 27.3.1968 executed in favour of
Sri.Manickam. The suit was filed in the year 2009. The age
of the plaintiff as per the cause title is 49 years and the age
of the defendant No.1 is 47 years and the age of defendant
No.2 is 56 years at the time of filing the suit . whereas the
plaintiff contends that "A" and "B" schedule properties were
purchased out of the joint family funds and they have also
involved in the milk diary business so contributed to the
said joint family funds. By looking into the pleadings, it
clearly shows that the plaintiff was only 8 years at the time
of purchase of schedule "A" property by her father late
Manikyam through registered sale deed dated 27.3.1968 .
Defendant No.1 and 2 are also minor at the time of purchase
of "A" schedule property. Whereas B schedule property is
concerned it was purchased by late Thayamma through
registered sale deed dated 19.3.1960. Therefore, even during
the purchase of a schedule Plaintiff and defendant no 2 were
minors and defendant no 1 was not born at the time of
purchase of B schedule property . Plaintiff and also
21
O.S.No.6078 of 2009
defendants were minors at the time of purchasing the "A"
and "B" schedule properties by late Manickam and late
Thayamma. Such being the case, their contribution to
purchase the property at the age of their minority cannot be
accepted at all. In order to prove that the suit schedule
property is a joint family property , first the plaintiff has to
prove that at the time of purchase of suit schedule property
there was a sufficient joint family nucleus to purchase the
property and they have all contributed by joint labour.
When plaintiff and defendant No.1 and 2 were minors during
1960 and 68 at no stretch of imagination it can be believed
that they are capable to contribute the joint funds. It is an
admitted fact that late Manickam doing contract and also
a mason and the mother of plaintiff and defendant
Smt. Thayamma was doing milk vending business. Palinitff
not all proved with cogent evidence that joint family has
sufficient nucleus at the time of acqusition of A and B
scheduel property . Therefore it clearly shows that
Manickam and Thayamma had separate source of income
and capacity to purchase "A" and "B" schedule properties .
Such being the case, the suit schedule property is not at all
a joint family property and these "A" and "B" schedule
properties were purchased by late Manickam and Late
Smt.Thayamma by their own self exertion. Though the
plaintiff has taken the contention that "A" schedule property
was purchased by joint family funds, but no materials are
placed on record to show that the suit schedule "A" and "B"
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O.S.No.6078 of 2009
properties are joint family properties . Such being the case,
it cannot be accepted that the suit "A" and "B" schedule
properties are the joint family properties . Therefore I answer
Issue No.1 partly in affirmative.
12. Issue No.3 to 5 and Additional Issue: The P.W.1
has clearly admitted that late Manickam and Thayamma
had sufficient source of income to purchase "A" and "B"
schedule properties. It is also an admitted fact that schedule
"A" property is self acquired property of Smt. Thayamma,
whereas defendant No.2 in her written statement contends
that "A" and "B" properties are the self acquired property of
Sri.Manickam and Thayamma .Late Manickam had
executed a Will dated 4.11.1992. Again late Manickam
revoked the said Will and executed last Will dated 29.1.2003
in respect of "A" schedule property bequeathing the said
property in favour of his grand son i.e., G.Vinod and Vijaya
became the absolute owner of "A' schedule property and they
are in possession of "A" schedule property. Therefore "A"
schedule property cannot be taken into consideration for
partition. During life time of Thayamma, she had also
executed a registered Will dated 29.1.2003 and has revoked
the earlier Will dated 1.11.1987 and further bequeathed
schedule "B" property in favour of M.Govindaraju defendant
No.1. Subsequently Smt.Thayamma has revoked the
aforesaid Will by way of revocation of Will dated 18.12.2006
by a registered document and on the same day Smt.
Thayamma has executed two separate Wills, one Will in
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O.S.No.6078 of 2009
favour of M.Govindaraju in respect of southern portion of
schedule "B' property measuring east-west 60 ft., and north-
south 15 ft., and another Will dated 18.1.2006 measuring
east-west 60 ft., and north-south 15 ft., in favour of Kavitha
the daughter of defendant No.1 and grand daughter of
Thayamma and Vijaya the wife of defendant No.1 and
daughter-in-law of Smt. Thayamma. Sri.Manickam by a
Will dated 18.2.2006 has come into operation and schedule
"A" property has been acquired by Vinod and Vijaya and
schedule "B" property was been acquired by Kavitha in
respect of northern portion of "B" schedule property with
respect to southern portion of "B" schedule property .
Govindaraj i.e, defendant no 1 has acquired right. Therefore
"A" and "B" schedule properties cannot be taken into
consideration for partition. Therefore the burden to prove
execution of Will by late Manikaym in respect of "A"
schedule property in favour of Vinod and Vijaya, the wife and
son of defendant No.1 and due execution of Will by
Smt.Thayamma in respect of southern portion of "B"
schedule property in favour of defendant No.1 and
northern portion in favour of Kavitha and Vijaya, the
daughter and the grand daughter of 2 nd defendant lies
heavily upon the defendant No.2.
13. The Hon'ble Apex Court as well as Hon'ble High
Court of Karnataka has time and again lay down the ratios
which has to be considered and appreciated in order to
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O.S.No.6078 of 2009
ascertain with respect to proof of Will. In this regard, I am
relying upon the judgment reported by the Hon'ble High
Court of Karnataka in CDJ 2008 Karnataka High Court 220
in the case of J.T. Surappa and another Vs.
Sri Sachhitananda Saraswathi Swamiju Public
Charitable Trust and others . Wherein the Hon'ble High
Court of Karnataka has held that with respect to the proof of
Will, the courts have to read careful path in the enquiry to
be conducted with regard to the Will, the Hon'ble High Court
has specifically held that the said paths consist of 5 steps
"Panchapadi". The Hon'ble High Court in the said judgment
has held that the path of enquiry and steps to be traversed
as under:-
(1) Whether the will bears the signature or
marked of the testator and is duly attested by two
witnesses and whether any attesting witness is
examined to prove the Will?
(2) Whether the natural heirs have been dis
inherited? If so, what is the reason? Whether the
testator was in sound state of mind at the time of
executing the Will?
(3) whether the testator was in a sound state of
mind at the time of executing the Will ?
25
O.S.No.6078 of 2009
(4) Whether any suspicious circumstances exists
surrounding the execution of the Will?
(5) Whether the Will has to be executed in
accordance with Sec.63 of Indian Successions Act
read with Sec.68 of Indian Evidence Act?
14. In order to prove the alleged "Will", the defendant
No.2 has examined the attesting witness to the "Will", who
was examined as DW.3. At this juncture, it is relevant to
refer some of the statement of DW.2 made during the course
of her cross-examination, wherein she deposed that
late Thayamma had made two "Wills" on 18.12.2018 and
later on she deposed that she has signed the two "Wills"
executed on 18.12.2006 and she expressed her ignorance
that she do not have any knowledge about the deceased
Thayamma was suffering from any disease. She also
expressed ignorance that she do not know how late
Thayamma had acquired immovable property bearing No.51
situated at 2nd Main Road, Ramachandrapuram, Bengaluru.
She also deposed that the deceased Thayamma was doing
milk dairy business and makes voluntary statement that she
has signed as attesting witness on two documents on
18.12.2008 and she also admits that she has given
instructions to prepare the evidence affidavit. The DW.1
has produced the alleged "Will" at Ex.D.7 and D.8 and 9.
On perusal of Ex.D.7, 8 and 9 it clearly shows the date of
"Will" is 18.12.2006, but whereas the DW.2 in her cross-
examination, she depose that she has signed "Will" as
26
O.S.No.6078 of 2009
attesting witness on 12.8.2008 later she also deposed that
she has signed the two "Wills" executed on 18.12.2006 and
she also deposed that late Thayamma had made two Wills
on 18.12.2008. Therefore in order to believe the evidence
of attesting witness, the first and foremost the attesting
witness must be able to say the date of execution of "Will"
and she has seen the testator has subscribed her signature
on the "Will". In the present case, DW.2 has attesting
witness was not able to say the date of execution of alleged
"Will" and also when she subscribed her signature as a
attesting witness whether in the year 2006 or 2008. On
perusal of evidence affidavit of DW.2 it clearly shows that in
para No.4 she has stated that the late Thayamma during her
life time had acquired immovable property bearing municipal
No.51, situated at 2nd Main road, Ramachandrapuram,
Bengaluru out of her own savings and funds and she also
admits in cross-examination that she had instructed to
prepare her evidence affidavit. But during the course of
cross-examination DW.2 expressed her ignorance as to how
late Thayamma had acquired the immovable property
bearing No.51 situated at 2nd Main road,
Ramachandrapuram, Bengaluru. Even the witness is not
able to say whether late Thayamma was suffering from any
disease . Defendant was also examined one more witness
as DW.3. DW.3 is not an attesting witness to the "Will". At
this juncture, it is relevant to refer some of the statement of
DW.2 made during the course of cross-examination, wherein
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O.S.No.6078 of 2009
he admits that the 2 nd defendant father late Manickam use
to infer him that he is writing "Will" in favour of his
daughter. D.W.3 expressed his ignorance that he does not
know through whom said Manickam and late Thayamma
prepared the "Will" and he did not remember whether said
"Will" is registered "Will" or not. But he depose that he has
seen the said "Will". The said "Will" was shown to him by
Smt. Vijaya. It is an admitted fact that DW.3 is not the
attesting witness to the "Will" as per the statement made by
DW.3 he do not know on which date late Manickam
executed the "Will" and he also does not know who is the
witness to the said "Will" and also in favour will was
executed . Though he states that he had seen the "Will" but
he is not able to say whether the said "Will" is registered or
not. If a person had seen the "Will" it cannot be believed
that he is unable to say whether the said document is
registered document or unregistered . The DW.3 also admits
that Late Manickam used to inform him that he is writing
"Will" in favour of his daughter. The statement of the DW.3
during the course of cross-examination is totally contrary to
the statement made in his evidence affidavit. Therefore the
evidence of DW.3 does not inspire the confidence of this
court.
15. It is an undisputed fact that suit schedule "A"
property standing in the name of late Manikyam. Schedule
A property is a self acquired property of late manikyam and
B schedule property is self acquired property of late
28
O.S.No.6078 of 2009
Thayamma . Therefore after the demise of late Manikyam,
suit schedule "A" property has devolved upon his children
as per Sec.8 of Hindu Successions Act . In the normal
course and in that event all the children of late Manikyam
gets equal share in "A" schedule property as per Sec. 8 of
Hindu Successions Act, but now according to defendant
No.2 "A" schedule property is not available for partition,
because of alleged "Will" executed by her father late
Manikyam. Defendant No.2 by stating this contention made
an attempt to establish that late Manikyam has left behind
testament in respect of "A" schedule property, whereas in
respect of "B" schedule property according to the defendant
No.2 her mother late Thayamma had executed two "Wills"
on 18.12.2006, half portion in respect of 1 st defendant and
remaining half portion in respect of Kavitha , the daughter
of 1st defendant. According to the defendant No.2 "A"
schedule property was bequeathed by late Manikyam in
favour of her grand son Vinod and her daughter Vijaya, who
are the grand son and daughter-in-law of late Manikyam.
Since the defendant No.2 has contended that the "Will"
alleged to be executed by late Manikyam and late
Thayamma, the entire burden lies on her to establish not
only the due execution of the "Will", but also the
circumstances which made late Manikyam and late
Thayamma to bequeath their self acquired property i.e., "A"
and "B" schedule property under the alleged "Will". As per
Ex.D.2 "Will" alleged to be executed in favour of Vinod and
29
O.S.No.6078 of 2009
Vijaya the grand son and daughter-in-law of late Manikyam.
It is a crucial in case of a "Will" as per Sec.68 of Indian
Evidence Act for the requirement of due execution of the
"Will" is attestation by two or more witnesses is mandatory.
It is also mandatory that either of one attesting witnesses
has to be necessarily examined before the document
required by law to be attested can be used in an evidence.
None of the attesting witnesses to Ex.D.2 alleged "Will" were
examined by the defendant No.2. According to the
defendant No.2 late Thayamma has executed "Will" in
favour of defendant No.1 and his wife and son. At this
juncture, if the written statement of defendant No.2 is
perused, she has no where pleaded the circumstances
under which the alleged "Will" came into explained. As
already it is stated the "Will" has to be proved in
accordance with Sec.68 of Indian Evidence Act, which
requires the examination of atleast one attesting witness to
the "Will" defendant No.2 in compliance of Sec.68 of Indian
Evidence Act has led evidence of DW.2 but this witness has
given inconsistent evidence before the court. Attesting
witnesses ie., DW.2 was not able to say the date of
execution of alleged "Will". Therefore the evidence of DW.2 is
not believable and it does not inspire the confidence of the
court. The "Will" is a solemn document known to the law.
The testator cannot be called to speak about the "Will" in
question and to explain the circumstances under which he
has executed the "Will". Therefore high standard of evidence
30
O.S.No.6078 of 2009
is required in proof of the "will", which is totally lacking in
the present case. As such, this court has no hesitation to
disbelieve the evidence of the attesting witness and I have
no hesitation to hold that defendant No.2 has failed to prove
the due execution of "Will" by late Manickam and late
Thayamma. When once the "will" is not proved, the "A" and
"B" schedule properties devolves by inheritance and
becomes liable for partition. The "B" schedule property is
self acquired property of late Thayamma. Such being the
case, Sec.14 of Hindu Successions Act is applicable.
Therefore on the death of late Thayamma, the property by
inheritance devolves upon the Class-I heir i.e., the plaintiff
and defendant No.1 and 2. Under the above facts and
circumstances, this court is of the considered opinion that
the defendant No.2 fails to prove execution of "Will" dated
18.12.2006 in respect of southern portion of Property in B
schedule property in favour of defendant no 1 and will dated
18.12.2006 in respect of northern portion of Property in B
schedule property by late Thayamma in favour of smt.
Kavitha and also fails to prove and establish alleged will
dated 29.1.2003 by late Manikyam in favour of G. Vinod
and R. Vijaya . As per Ex.D.7 a registered "Will" in respect of
"B" schedule property measuring east-west 30 ft., and north-
south 15 ft., towards southern portion of "B" schedule
property was bequeathed in favour of defendant No.1 i.e.,
the son of late Manickam and Thayamma. Though the
defendant No.1 has filed the written statement, but the
31
O.S.No.6078 of 2009
defendant No.1 is totally silent about bequeathing
property in his favour in respect of southern portion of "B"
schedule property and also in northern portion of "B"
schedule property in favour of his daughter Smt. Kavitha .
In normal course of phenomenon , if a person gets
property under the "Will", he tries to prove "Will" after the
demise of testator but whereas in the present case, though
Ex.D.7 alleged "Will" in favour of defendant No.1, but it was
not produced by the defendant No.1 and it was produced by
defendant No.2. Therefore, in case of a "Will" it is also
necessary to ascertain from whose custody the "will" was
produced . All the alleged will are produced by defendant
No.2, but defendant No.2 is not a beneficiary under the
"will" though defendant No.1 is beneficiary under the "will",
but he is totally silent . Therefore all these factors creates
suspicious and does not inspire the confidence of this court.
One additional issue is also framed to prove whether Late
Manickam has executed "Will" dated 29.1.2003. As per
Sec.68 of Indian Evidence Act, it is mandatory that one of
the attesting witnesses has to be examined before the court,
but none of the attesting witnesses to Ex.D.2 i.e., the
alleged "will" dated 29.1.2003 were examined by the
defendant No.2 before the court . Such being the case,
defendant No.2 failed to prove "will" dated 29.1.2003. under
the above facts and circumstances of the case this court is of
the consider opinion that the defendant no 2 fails to prove
two will dated 18.12.2006 in favour of defendant no 1 in
32
O.S.No.6078 of 2009
respect of southern portion of B schedule property and Smt
G Kavitha in respect of northern portion of B schedule
property . And also fails to prove will dated 29.1.2003 in
favor of vinod and vijaya in respect of A schedule property
by late Manikyam . Hence, I answer Issue No.3 partly in
affirmative, Issue No.4 and 5 in negative and Additional
Issue in negative.
16. Issue No.2, 6 and 7: It is an admitted fact that
the plaintiff and defendants belongs to the joint family, but
plaintiff fails to prove that the suit schedule property is
undivided joint family properties. The suit schedule
property is a self acquired property of late Manickam and
Smt Thayamma, who have purchased schedule "A" and "B"
properties through a registered sale deed. Though defendant
No.2 has alleged that late Manickam and Smt.Thayamma
have executed "Will" in respect of "A" and "B" schedule
properties in favour of defendant No.1 and his wife and
children, but defendant No.2 failed to prove "will"
bequeathing schedule properties in favour of her daughter ,
grand daughter , grand son and defendant No.1. As per
Sec.8, a male who died intestate, upon his death the
property devolves by inheritance to his class-I heirs.
Whereas in case of woman died intestate as per Sec.14, the
property acquired by such female Hindu devolves upon her
Class-I heir. The plaintiff and defendant No.1 and 2 are
Class-I heir of late Manikyam and Smt.Thayamma. When
the defendant No.2 has not discharged the burden cast upon
33
O.S.No.6078 of 2009
on her to prove will , the onus does not shift on the plaintiff
to disprove the execution of the "Will" . Late Manickam and
Thayamma died intestate, the "A" and "B" schedule
properties devolves upon the Class-I heirs i.e., plaintiff and
defendant No.1 and 2. Therefore plaintiff and defendant No.1
and 2 are entitled for equal share in the "A" and "B"
schedule properties. The plaintiff has also included
schedule "C" property. Schedule property "C" is with respect
to movable property i.e., gold jewelry of about 60 savaran
and silver articles of 15 kg and joint family funds of more
than Rs.50,00,000/-. In order to prove that there was a joint
family fund of Rs.50,00,000/- and jewelery and silver
articles, there is no iota of evidence placed on record in this
regard by the plaintiff . Except, bald avermetns, there is no
material on record to show that there was a gold jewelry of
about 60 savaran and silver articles of 15 kg and joint family
funds of more than Rs.50,00,000/-. Such being the case,
the plaintiff failed to prove the existence of C schedule
property ie., gold jewelry of about 60 savaran and silver
articles of 15 kg and joint family funds of more than
Rs.50,00,000/-. Therefore the plaintiff is not entitled for the
relief as claimed in "C" schedule property. The plaintiff has
also sought for mesne profit . The question of mesne profits
is kept open for adjudication at the time of final decree
proceedings. Under the above facts and circumstances, this
court is of the consider opinion that the plaintiff and
defendants are entitled for 1/3 share in suit schedule "A"
34
O.S.No.6078 of 2009
and "B" properties by metes and bounds. Hence, I answer
Issue No.2 , 6 partly in affirmative and Issue No.7 kept
open for adjudication in Final Decree Proceedings.
17. Issue No.8: In view of my above discussions
and my finding on Issue No.1 to 7 and additional issue, I
proceed to pass the following:-
ORDER
Suit is hereby partly decreed with costs. Plaintiff is entitled for partition and separate possession of her 1/3rd share in suit schedule "A" and "B" properties by metes and bounds.
The question of mesne profits is kept open for adjudication at the time of final decree proceedings.
Draw preliminary decree accordingly. {Dictated to the Judgment Writer transcribed by her, corrected and then pronounced by me in open court this 31st day of January 2020} (PREETHI K.P) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
35
O.S.No.6078 of 2009 ANNEXUERE List of witnesses examined for plaintiff:-
PW.1 Smt.Kanthammal List of documents exhibited for plaintiff:-
Ex.P.1 Genealogical tree Ex.P.2 : Death certificate Ex.P.3: Certified copy of sale deed Ex.P.3(a): Typed copy of Ex.P.3 Ex.P.4: Certified copy of sale deed Ex.P.4(a): Typed copy of Ex.P. 4 List of witnesses examined for defendants :-
D.W.1: Smt. Kashiyamma DW.2 Mangala DW.3: Smt. Lakshmi List of documents exhibited for defendants :-
Ex.D.1 to 9: WILL Ex.D.8(a) Signature in Ex.D.8
XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 36 O.S.No.6078 of 2009 s 37 O.S.No.6078 of 2009 37