Bangalore District Court
Smt.Gangamma vs Sri K.M.Basvaradhya on 3 November, 2020
IN THE COURT OF THE XLI ADDL. CITY CIVIL JUDGE
AT BENGALURU (CCH No.42)
PRESENT:
Dr. Kasanappa Naik,
M.A., LL.M., Ph.D.
XLI Addl. City Civil & Sessions Judge
Dated 3rd November, 2020
OS.No.3151/2004
PLAINTIFF/S : 1. Smt.Gangamma
W/o.Late K.P.Mallikarjunaiah
D/o Late.R.N.Mallikarjunaiah
@ R.N.Mallikarjuna Aradhya
Since dead by LRs
1A) Smt.M.Neelambika
W/o.S.V.Nadesh
Aged about 50 years
No.453, AMS Layout,
3rd Cross, Vidyaranaypura
Bengaluru560 050.
1B) Smt.Umadevi
W/o.K.N.Basavaradhya
Since deceased by LRs
1B(a) K.N.Basavaradhya
S/o Late.K.N.Nanjunda
Aradhya
Aged about 63 years
No.1189/C, 1st Floor, 14th
Cross, M.C.Layout
2 OS.3151/2004
Bangalore560 040.
1B(b) Smt.K.B.Manjula
W/o Chandrashekar
Aged about 43 years
No.149, 2nd Cross
5th Main, KPSC Layout
Bengaluru560 056
1C) M.Savandappa
S/o.Late
K.P.Mallikarjunaiah
Aged about 45 years
No.47, A.D.Halli,
Magadi Main Road
Bangalore560 079.
1D) Smt.K.M.Sowbhagya
W/o.T.S.Devanath Aradhya
Since deceased by LRs
1D(a) T.S.Devanth Aradhya
S/o Late T.S.Siddalinga
Aradhya
Aged about 63 years
No.54, 9th B Cross
1st Floor, A.D.Halli
Magadi Main Road
Bengaluru560 079.
1D(b) D.Amaresh
S/o T.S.Devanth Aradhya
Aged about 29 years
No.54, 9th B Cross
1st Floor, A.D.Halli
Magadi Main Road
3 OS.3151/2004
Bengaluru 560 079.
1E) K.M.Sachindanandamurthy
S/o.Late K.P.Mallikarjunaiah
Aged 42 years
No.47, A.D.halli
Magadi Main Road,
Bangalore560 079.
1F) K.M.Rudramurthy
S/o.Late K.P.Mallikarjunaiah
Aged 40 years
No.1188, 1st Floor, 1st Main
Road, 3rd Cross, Vijayanagara,
Bangalore560 040.
1G) K.M.Hemalatha
W/o.B.R.Hullappaswamy
Aged 33 years
R/a.No.315/7
"Roopashree Nilaya"
Behind KVV High School
Subbanna Garden
Vijayanagar, Bangalore.
(By Sri.Praveen Prabhakar,
Advocate)
V/s.
DEFENDANT/S : 1. Sri K.M.basvaradhya
Adoped son of
R.N.Mallikarjunaiah @
R.N.Mallikarjuna Aradhya
Aged about 66 years
4 OS.3151/2004
2. Smt.C.M.Nagarathna @
Nagarathnamma
W/o.K.M.Basavaradhya
Aged about 60 years
3. Sri K.B.Girisha
S/o.K.M.Basavaradhya
Aged about 46 years
4. Sri K.B.Guruprasad
S/o.K.M.Basavaradhya
Aged about 44 years
Defendants No.1 to 4 are
R/o.No.3, Old No.60/1, 4th
Main, 5th Cross, Chamarajpet,
Bangalore560 018.
5. The Commissioner
Bangalore Development
Authority
Kumarapark West
Bangalore
6. Sri K.B.Rajashekar
S/o.K.M.Basavaradhya
Aged about 46 years
R/o.Old No.3, New No.60/1,
4th Main road, 5th Cross,
Chamarajpet,
Bangalore560 018.
7. K.B.Geetha
W/o Manjunath
Aged about 49 years
R/at No.48/1, Benaka Clinic
5 OS.3151/2004
Kommaghatta, Sulikere Post
Kengeri Hobli,
Bengaluru South560 060.
(D1 to 4, 6 & 7 by
Sri.V.B.Shivakumar,
D5 by Sri.A.Zaheer Ahmed,
Advocates)
Date of Institution of the Suit 26.04.2004
:
Nature of Suit :
(Suit on Pronote, suit for Partition and separate
declaration & possession, suit possession
for injunction)
Date of commencement of 09.07.2009
recording of evidence :
Date on which, the Judgment 03.11.2020
was pronounced :
Total Duration : Year/s Month/s Day/s
16 06 07
JUDGMENT
The suit is filed for the relief of partition and separate possession of plaintiff's half share in 'A' and 'B' 6 OS.3151/2004 Schedule properties and further, for the relief of half share in the award amount passed by BDA and also proportionate share in Site Nos.171, 172 and 173, which are item Nos.2(a) to 2(c) of 'B' Schedule property and so also, for incentive sites to be allotted by BDA by virtue of acquisition of 2 acres of land bearing Sy.No.48/3 of Ramasandra Village. The plaintiff also claimed for an order of mesne profit from the date of suit till the date she put in separate possession of schedule properties and with costs.
2. The facts of the case are as under:
The plaintiff Smt.Gangamma is the daughter of R.N.Mallikarjunaiah @ R.N.Mallikarjuna Aradhya and Smt.Savandamma. The plaintiff - Gangamma died on 29.11.2004 during the pendency of the suit and her legal heirs are brought on record. The plaintiff No.1(a) -7 OS.3151/2004
Smt.M.Neelambika, plaintiff No.1(b) - Smt.Umadevi, plaintiff No.1(d) - Smt.K.M.Sowbhagya and plaintiff No.1(g) - K.M.Hemalatha are the daughters and plaintiff No.1(b) - Sri.K.N.Basavaradhya, plaintiff No.1(c) - M.Savandappa, plaintiff No.1(e) - K.M.Sachidananda Murthy and plaintiff No.1(f) - K.M.Rudramurthy are the sons of deceased plaintiff - Smt.Gangamma. The plaintiff No.1(b) - Smt.Umadevi, plaintiff No.1(d) Smt.K.M.Sowbhagya died during the pendency of the suit and their children, plaintiff No.1(b)(a) and 1(b)(b) are brought on record. Whereas, plaintiff No.1(d)(a) to (c) are brought on record in view of death of plaintiff No.1(d). The defendant No.1 Sri.K.N.Basavaradhya is the adopted son of father of the plaintiff namely, R.N.Mallikarjunaiah. Defendant No.1 is the son of elder brother of R.N.Mallikarjunaiah. Defendant No.2 - 8 OS.3151/2004 Smt.C.M.Nagarathna is the wife and defendant No.3 - K.M.Girish, defendant No.4 - K.B.Guruprasad and defendant No.6 - K.B.Rajashekar are the sons and defendant No.7 - Smt.K.B.Geetha is the daughter of defendants No.1 and 2. The husband of plaintiff Gangamma is the brother of her mother.
As per the plaintiff, her parents and defendant No.1 were doing cattle business and so also money lending business and that her father was an independent earning member of the family even though he was not separated from the joint family consisting of himself and his brothers. Her father purchased a house site (Schedule 'A' property) at Chamarajpet in the name of defendant No.1, when defendant No.1 was aged about 20 years. The said site was purchased under sale deed dated 21.02.1963 for Rs.16,500/. Defendant No.1 was not 9 OS.3151/2004 having independent source of income. The father of the plaintiff, thereafter constructed a house on the said site, which is 'A' Schedule property in this suit.
There was dispute between the father of the plaintiff and his brothers and same was ended in compromise in OS.No.57/1964 under Arbitration Agreement dated 22.09.1964. Under the said Arbitration Agreement, joint family properties and ancestral properties owned by her father and his brothers was divided under said agreement and 15 items of properties were allotted to the share of father of the plaintiff. The father of the plaintiff was kartha and Manager of Hindu Joint Family and that plaintiff and defendant No.1 along with their parents formed Hindu Joint Family governed by Mithakshara School of Law. It is further contended that the father of the plaintiff died on 27.04.1992 and the mother died on 10 OS.3151/2004 12.12.1991 leaving behind plaintiff and defendant No.1 as their legal heirs. It is the case of the plaintiff that after the death of their father, the plaintiff along with defendant No.1 succeeded to the estate of her father. The defendant No.1 as a Kartha of the joint family has acquired several properties after the death of her father and that all the joint family properties, which are mentioned as 'B' Schedule properties in the suit. The plaintiff and defendant No.1 to 4 are all members of joint family and are in joint possession of suit properties. It is contended that after the death of her father, the 1 st defendant as a Kartha of joint family, purchased property at Vijayanagar (item No.1 of 'B' Schedule property) in the name of his wife/defendant No.2 out of joint family funds. The plaintiff being classI heir of her parents is entitled to equal share along with defendant No.1. She 11 OS.3151/2004 also contended that the property acquired by defendant No.1 in his individual name are also out of joint family funds. The property acquired in the name of her parents is self acquired property. Her parents died intestate and they have not alienated or conveyed their property and they had no intention to alienate or convey their properties in favour of anybody.
It is alleged that 1st defendant, with a malafide intention, has gifted a portion of 'A' Schedule property under gift deed dated 20.12.2001 in favour of his son defendant No.3. The said gift deed is invalid and null and void. The defendant No.1 has no right or authority to gift the joint family properties and the same is not binding on the plaintiff. Further, defendant No.1, with the malafide intention, has transferred khatha with respect to item No.3 in favour of his son defendant No.4 12 OS.3151/2004 in the year 200304. The said transfer of katha is also illegal as defendant No.1 had no title to transfer the property. The defendant No.5 - Bengaluru Development Authority (BDA) has acquired 2 acres of land in Sy.No.48/3 of Ramasandra Village, which belongs to joint family of plaintiff and defendant No.1. The 1 st defendant as a kartha of joint family has received award amount of Rs.12,00,000/, which he is not entitled to receive entire award amount. The plaintiff though initially trusted the 1st defendant, but he denied legitimate share of the plaintiff in the award amount. In view of the same, the plaintiff alone is now entitled for incentive sites to be allotted by defendant No.5 in connection with acquisition of Sy.No.48/3 / item No.3 in the suit property. The BDA under its special scheme has allotted sites item No.2(a) to 2(c) as described in 'B' 13 OS.3151/2004 Schedule. The plaintiff is entitled for equal share in the award amount and so also in the said 3 sites. The plaintiff came to know about the fraudulent transfer of property in the name of defendants No.3 and 4, in the month of January 2004, when the defendant No.1 refused to give award amount to her. The plaintiff demanded her legitimate share in the suit properties and when the defendant refused for the same, the cause of action arose and suit is filed for the relief as mentioned above in detail.
3. The defendants No.1 to 4 have filed their common written statement, whereas, defendants No.5, 6 and 7 have filed their distinct written statement. When the plaint was amended, the defendants No.1 to 4 have filed additional written statement. Opposing the same, 14 OS.3151/2004 the plaintiff filed her rejoinder.
4. The defendants No.1 to 4 in their written statement have admitted their relationship with the plaintiff as pleaded by her. But they have denied specifically all other allegations and claim of the plaintiff. While admitting about the compromise between R.N.Mallikarjunaiah and his brothers on 22.09.1964, it is stated that some properties were allotted to the share of R.N.Mallikarjunaiah. They have denied that the properties so allotted were jointly alloted in favour of R.N.Mallikarjunaiah and 1st defendant. On the other hand, the said properties were allotted only in favour of R.N.Mallikarjunaiah. They have denied that the plaintiff was a member of joint family consisting of her father, 1 st defendant and mother Savandamma. The plaintiff was 15 OS.3151/2004 residing with her father till her marriage and thereafter, she is residing in the house of her husband. They have disputed about the correctness of date of death of parents of plaintiff. As per them, Savandamma died on 28.12.1990 and R.N.Mallikarjunaiah died on 28.04.1992. They have denied that the plaintiff succeeded to the estate of R.N.Mallikarjunaiah after his death and that she is the legal heir of her father. They also denied that the plaintiff was a member of the family of 1 st defendant. They have contended that the plaintiff has included the properties belonging to Savandamma, 1st defendant and properties belonging exclusively to the three sons of 1st defendant including properties belonging to 2 nd defendant. As per them, the suit 'B' Schedule properties are not the joint family properties. As per them, property bearing Kaneshumari No.18/18, Old No.48 (item No.3) 16 OS.3151/2004 belongs to defendant No.4 and the khatha of said property has been changed in his name in pursuance of oral partition among the concerned persons. The defendants admitted that the property bearing Sy.No.48 or 48/3 has been acquired by the BDA and compensation has been awarded. The 1st defendant has received the compensation since khatha was standing in his name. The plaintiff has no right to receive the compensation awarded. They have denied that the defendant No.1 has received the award amount as kartha of joint family. As per them, the 1st defendant has executed gift deed dated 20.12.2001 in favour of defendant No.3 with respect to a portion of premises situated in Chamarajpet, 4th Main Road, Bengaluru City and defendant No.3 is in possession of the said property as its owner. The said property is self acquired property of 1st defendant and he has every right 17 OS.3151/2004 to execute the same.
It is further contended that the property mentioned in the 'A' Schedule of the plaint is the self acquired property of 1st defendant and he has acquired the same under sale deed dated 21.02.1963 executed by one T.S.Arunachalam. The 1st defendant being the owner of the same, has gifted portion of the same in favour of defendant No.3 under gift deed dated 20.12.2001 and thereafter, defendant No.3 is in possession of the said property. Item No.1 in 'B' Schedule property is the self acquired property of defendant No.2 and she has acquired the same from BDA under sale deed dated 24.08.1983 and that she is in possession of the same as its owner. Defendant No.2 has put up construction on the said property out of her own money. Item No.7 of the 'B' Schedule property is the absolute property of 1 st 18 OS.3151/2004 defendant. As per him, the said property was earlier belonging to temple of Lord Beeradevaru and subsequently, it came to R.N.Mallikarjunaiah and later, it was devolved upon the 1st defendant as his self acquired property. Further, item No.9 of 'B' Schedule property is self acquired property of 1st defendant as he purchased the same under sale deed dated 13.05.1992 from Smt. Mahadevamma and others and that the said property is not a joint family property as alleged by the plaintiff. Further, item No.10 of 'B' Schedule property belongs to Smt. Savandamma and she purchased the same under sale deed dated 26.04.1971 from one Venkatappa and others. Savandamma being owner of the said property has executed registered Will dated 14.06.1984 and has bequeathed the said property in favour of three sons of 1st defendant. After the death of 19 OS.3151/2004 Savandamma, the three sons of 1st defendant, are in possession of said property.
It is contended that some properties were allotted to the share of R.N.Mallikarjunaiah in the registered partition deed dated 22.09.1964 and said R.N.Mallikarjunaiah was in possession and enjoyment of the said properties till his death. R.N.Mallikarjunaiah sold some of the properties during his lifetime and he executed Will deed dated 16.02.1984 bequeathing all the properties possessed by him in favour of sons of 1 st defendant namely, K.B.Girish/defendant No.3, K.B.Rajashekar (defendant No.6 and K.B.Guruprasad (defendant No.4). R.N.Mallikarjunaiah died on 28.04.1992. The properties bequeathed under said Will were land bearing Sy.No.108 situated at Ramasandra, Sy.No.13, Sy.No.77/1 and Sy.No.75 in favour of 20 OS.3151/2004 Rajashekar. The properties bearing Sy.No.148 of Ramasandra Village, Sy.No.77/2, 77/1, 75 and 13 of Kommaghatta Village were bequeathed in favour of Girish. Land bearing Sy.No.75, Sy.No.111, Sy.No.48, Thippe and Ottara in Sy.No.48, Sy.No.107 all situated at Ramasandra and Sy.No.75, 76, 11, 12 and Kaneshumari No.48 of Kommaghatta Village were bequeathed in favour of Guruprasad. After the death of R.N.Mallikarjunaiah, the legatees under the Will are in possession of the properties bequeathed in their favour.
The remaining property in Sy.No.48 of Ramasandra after acquisition from BDA is in possession of Guruprasad/defendant No.4. The property now bearing Kaneshumari No.18/18, Old No.48 of Kommaghatta Village is in possession of defendant No.4, who acquired 21 OS.3151/2004 the same under Will executed by R.N.Mallikarjunaiah. The properties bearing No.75, 115 and 116 are also in possession of 4th defendant having acquired the same under Will executed by R.N.Mallikarjunaiah. It is contended that Sy.No.77/1 measuring 1 acre 19 guntas, Sy.No.77/2B measuring 3 acres 30 guntas both situated at Kommaghatta Village. There is no Sy.No.77P and 77/2. Said two properties are in possession of defendant No.6, who is one of the son of 1 st defendant and the portion of the same is in possession of defendant No.3. Item No.5 mentioned in the 'B' Schedule is in possession of defendant No.6 and defendant No.3. It is further contended that property bearing Sy.No.108 of Ramasandra Village is in possession of defendant No.6, who acquired the same under Will executed by R.N.Mallikarjunaiah. Property bearing item No.11 22 OS.3151/2004 mentioned in 'B' Schedule, Sy.No.48/1 or Sy.No.48 is in possession of defendant No.4, who acquired the same under Will executed by said R.N.Mallikarjunaiah. Item No.12 of 'B' Schedule property in Sy.No.148/1 is also in possession and enjoyment of defendant No.3. The 1st defendant is the Manager of the family consisting of himself, his wife and children. Defendants No.3 and 4 have allowed the khatha of the property to remain in the name of 1st defendant. The plaintiff is not in joint possession of said properties. The plaintiff married long back and she is residing in the house of her husband ever since the date of her marriage. The death of R.N.Mallikarjunaiah or Smt.Savandamma does not give any cause of action to the plaintiff to file the suit. The suit is bad for nonjoinder of necessary parties and for misjoinder. The plaintiff is not in joint possession of 23 OS.3151/2004 the suit property and therefore, the court fee paid is not sufficient.
5. The defendants No.1 to 4 have also filed additional written statement in view of amendment to the plaint, wherein, they have denied that item No.4, 5 and 6 are joint family properties. The earlier property number of item No.4 was No.20, which was belonging to defendant No.4 and same was allotted in his favour in the year 1981 by the Area Development Officer and now it is Plot No.59. Item No.5 is the property bearing No.60 of Kommaghatta Village, which was allotted to defendant No.2/Nagarathna in the year 1981 from Block Development Officer. The said property was in possession of defendant No.2 from the date of grant. The property number of said property at the time of grant was 24 OS.3151/2004 21 and now it is bearing No.60. In a oral partition between defendant No.2 and defendant No.4, the property was fallen to the share of defendant No.4. Item No.6 of 'B' Schedule property belongs to R.N.Mallikarjunaiah and same was bequeathed by him in favour of defendant No.4 and he is in possession of the same. It is contended that the plaintiff is not entitled to any share in the properties mentioned above.
6. Defendant No.5 in its written statement has contended that the land bearing Sy.No.48/3 was acquired in accordance with law for public purpose i.e. for formation of Sir.M.Visveswaraiah layout under preliminary notification dated 14.12.2001 and another preliminary notification dated 15.04.2002. The final notification was issued on 31.10.2002. The notified 25 OS.3151/2004 khatedars/anubhavdars were K.G.Shankararadhya, K.G.Puttananjundaradhya, K.M.Basavaradhya, K.N.Nanjundaradhya, K.N.Shivakumararadhya, M.G.Nagarathna and N.Ravishankar. The acquisition proceedings has been completed and compensation has been determined. The suit is to be dismissed since no relief claimed in favour of this defendant.
7. The defendant No.6 has also filed his written statement taking similar contentions as taken up by defendants No.1 to 4 in their written statement. He has stated that there is no cause of action to the suit and plaintiff has no right, title or interest in any of the properties including the properties belonging to this defendant. He has also stated that the plaintiff has no right in any of the properties belonging to 26 OS.3151/2004 R.N.Mallikarjunaiah and Savandamma.
8. The defendant No.7 in her written statement has contended that properties mentioned in the 'A' Schedule is self acquired property of father of 1 st defendant. Defendant No.7 has also taken similar contentions as taken up by defendants No.1 to 4 and 6, supporting all their contentions and stated that the plaintiff has no claim, right or share in the property of 1 st defendant.
9. The defendants No.1 to 4 have also filed their additional written statement in view of amendment of plaint. They have denied the right of the plaintiff in the compensation granted in view of acquisition of properties item No.2(a), 2(b) and 2(c). As per them, the property 27 OS.3151/2004 Sy.No.48 of Ramasandra Village, khatha was transferred in the name of 1st defendant as 'pavthi khatha'. R.N.Mallikarjunaiah has bequeathed property by Holograph Will in favour of defendant No.4, who acquired the ownership and possession over said property. The khatha of said property was standing in the name of 1st defendant and compensation was paid to him. The sites given by BDA under special scheme are on the basis of adjudication made for allotment of sites and the benefit enures to the 4 th defendant. Thus, all the contesting defendants, have prayed to dismiss the suit with costs.
10. In view of additional written statement filed by the defendants, the plaintiff has filed her rejoinder, wherein, she has reiterated the material facts of the 28 OS.3151/2004 plaint. She has denied the averments that R.N.Mallikarjunaiah and Smt.Savandamma have executed Wills during their lifetime. Schedule 'A' of suit property was purchased by R.N.Mallikarjunaiah when defendant No.1 was 20 years old boy and he was student and he had no even a penny and he was asking the father of the plaintiff for his pocket money. The father of the plaintiff purchased 'A' Schedule property in the name of defendant No.1 in view of the fact that there was family dispute between plaintiff's father and his brothers, which was ended in 1964, but the said property was self acquired property of R.N.Mallikarjunaiah. Immediately, after the death of R.N.Mallikarjunaiah, the plaintiff derived equal share as classI heir over the said property. The defendant No.1 has not stated source of income to acquired 'A' Schedule property for Rs.16,000/ in the year 29 OS.3151/2004 1963. After purchase of 'A' Schedule property in the name of 1st defendant, R.N.Mallikarjunaiah constructed house in the said property. As per the plaintiff, Savandamma died on 28.12.1990 and not on 28.12.1998. Khatha was transferred in the name of 1 st defendant with respect to suit properties on the basis of inheritance and in mutation proceedings, it is stated that Savandamma died much earlier to 1994. After the death of R.N.Mallikarjunaiah and Savandamma, khatha was transferred in the name of 1st defendant by inheritance. The plaintiff is a natural daughter and defendant No.1 is a adopted son. Thus, the plaintiff automatically become classI heir and succeed over the estate of her parents. The 'B' Schedule properties are the joint family properties, which are acquired in the name of Savandamma, defendant No.1 and his wife, out of 30 OS.3151/2004 income derived from joint family funds by R.N.Mallikarjunaiah. After the death of Savandamma, the plaintiff automatically succeeded to her share in the property as classI heir. The plaintiff claimed that item No.3 of 'B' Schedule property was joint family property allotted to R.N.Mallikarjunaiah in the family partition of the year 1964 and defendant No.4 has no right over said properties. She claimed that after the death of R.N.Mallikarjunaiah, the plaintiff succeeded the property bearing Sy.No.48 of Ramasandra Village as classI heir and defendant No.1 has no exclusive right in the compensation of Rs.12,00,000/ awarded by BDA. Defendant No.1 has received award amount and plaintiff is entitled to get the incentive sites to be allotted by BDA, in connection with acquisition of said land. The 1 st defendant has no right to execute gift deed dated 31 OS.3151/2004 20.12.2001 in favour of defendant No.3 and the same is not binding on the plaintiff. Further, the claim made in the written statement has been denied specifically. It is contended that the Will deed alleged to have been executed by Savandamma on 14.06.1984 in favour of three sons of 1st defendant is a created and concocted document. The alleged Will has not seen the light of the day from the date of its alleged execution. Will, if at all was in existence, there was no impediment for transfer of khatha in favour of beneficiary under said Will. They have even denied that execution of Will by R.N.Mallikarjunaiah on 16.02.1984 and further bequeathing all the properties possessed by him, in favour of sons of 1st defendant. As per them, the said Will is created and concocted document to deprive the valuable rights of the plaintiff. It is contended that said 32 OS.3151/2004 R.N.Mallikarjunaiah and Savandamma had only daughter
- plaintiff and one adopted son - 1st defendant and there was no need for them to deprive the rights of the plaintiff and bequeath all the properties in favour of sons of 1 st defendant. The Medical Certificate dated 15.02.1984 issued by Dr.Mruthyuanjayanna is a created document and same was obtained by 1st defendant by misusing his position. As on the date of alleged Medical Certificate, R.N.Mallikarjunaiah was aged more than 90 years and he was not in a position to move about and he was not able to take independent decisions and he was not in the sound state of mind. Thus, she has again prayed to grant decree in her favour.
11. On the basis of the above pleadings, the following issues have been framed:
33 OS.3151/2004
1) Whether plaintiff proves that they are together entitled for ½nd share in A Schedule property and 1/4th share in B Schedule property?
2) Whether the plaintiff proves that they are entitled for ¼ share in respect of incentive sites to be given by Bangalore Development Authority by virtue of acquisition of land in Sy.No.48/3 of Ramasandra Village?
3) Whether they are entitled for partition and separate possession of their share by metes and bounds in the suit properties?
4) Whether plaintiffs are entitled for mesne profit from the date of suit, till possession of their share is handed over to them?
5) Whether defendant No.2 proves that item 1 of B Schedule property is her self acquired property?34 OS.3151/2004
6) Whether defendant No.1 proves that A Schedule property is his selfacquired property?
7) Whether defendant No.1 proves that item7 of B Schedule property is his self acquired property?
8) Whether defendants prove that item 10 of B Schedule property was exclusive property of Savanthamma?
9) Whether defendants prove that Savanthamma has executed Will dated 14.06.1984 bequeahting item10 of schedule B property in favour of three sons of defendant No.1?
10) What decree or order?
ADDITIONAL ISSUE DT. 11.12.2007
1) Whether the defendants No.3, 4 and 6 prove that R.N.Mallikarjunaiah has executed a Will dated 16.02.1984 bequeathing properties mentioned in 35 OS.3151/2004 paragraph 17 in written statement of defendants No.1 to 4 and 6 in favour of defendants No.3, 4 and 6?
ADDITIONAL ISSUE DATED 31.01.2009
1. Whether plaintiff is entitled for half share in A and B Schedule property?
ADDITIONAL ISSUE DATED 02.04.2013
1. Whether the plaintiffs prove that they are entitled for share in site Nos.171, 172 and 173 allotted under special scheme by BDA and also for share in compensation amount?
12. In Support of their claim, the plaintiff No.1(f)
- K.M.Rudramurthy, the son of deceased plaintiff examined himself as PW1 and produced documents as per Ex.P.1 to P.31 in evidence. On the other hand, the defendants examined defendant No.4 as DW1 and 36 OS.3151/2004 examined three witnesses as DW2 to DW5 and produced documents as per Ex.D.1 to D.40 in evidence.
13. I have heard the learned counsel for the parties and perused the materials on record including written synopsis and citations produced by both the parties.
14. My findings on the above issues are as under
Issue No.4 & 5 : In the affirmative Issue No.1, 3 & : In the partly affirmative Addl. Issue No.1 dt.31.01.2009 Issue No.2, 6, 7, 8 & 9: In the negative Addl. Issue No.1 dated 11.12.2007 & Addl. Issue No.1 dated 02.04.2013 37 OS.3151/2004 Issue No.10 : As per final order, for the following:
REASONS
15. ISSUE NOs.1 TO 9, ADDL. ISSUE NO.1 DT.11.12.2007, ADDL. ISSUE NO.1 DT.31.01.2009 AND ADDL. ISSUE NO.1 DT.02.04.2013: Since these issues are interconnected with each other, they are taken together for discussion, in order to avoid repetition of facts.
16. The learned counsel for the plaintiff contended that there is no dispute that 1 st defendant is the adopted son of R.N.Mallikarjunaiah and that the suit properties were the coparcenary and joint family properties of plaintiff and 1st defendant as their father R.N.Mallikarjunaiah has acquired those properties in a partition that took place in the year 1964 between 38 OS.3151/2004 himself and his brothers and such being the case, those properties being coparcenary properties and the plaintiff and 1st defendant being alive, they become coparcener and the plaintiff is entitled for half share in the suit schedule properties. It is further argued that the defendants have propounded two Wills, one executed by R.N.Mallikarjunaiah and another by his wife Savandamma, but both the documents are surrounded by number of suspicious circumstances. It is argued that the major circumstance is that, the defendants have failed to produce the said Wills before the Court for a long period and even the 1st defendant changed khatha of suit properties in his name based on inheritance and not on the basis of both Wills. As per learned counsel, both the parents of plaintiff have not given even a single Pennie to their biological daughter and it is strange that no reason 39 OS.3151/2004 is forthcoming as to why the parents can disinherit their own daughter despite owning huge number of properties. It is further argued that the defendants have though made efforts to prove the Wills with the help of evidence of DW2 to DW5, but evidence of DW2 to DW5 is unreliable and does not comply the mandatory requirements of Section 68 and 69 of Evidence Act. It is further argued that the evidence of DW5 handwriting expert, is untrustworthy and cannot be relied upon. It is also argued that the plaintiff being the daughter of R.N.Mallikarjunaiah and Savandamma is entitled for half share in the suit properties.
17. It is also argued that the suit schedule 'A' property though stands in the name of defendant No.1, but there is no evidence produced to show that he had 40 OS.3151/2004 independent income to purchase the property in the year 1963. The salary of the 1st defendant was meager and the joint family of R.N.Mallikarjunaiah was possessing heavy number of properties and burden of proof being on the 1st defendant to establish that he had independent income and he having not produced any evidence, the said property is to be held as joint family property purchased out of nucleus of joint family and in the said property also, the plaintiff is entitled for half share. It is argued that when the defendant No.1 himself has no exclusive title in Schedule 'A' property, he cannot gift the same in favour of his son - defendant No.3 and thus, the gift deed dated 20.12.2001 is invalid. It is further argued that both the Wills are created documents as there is no explanation as to why defendant No.4 was given a major share in the properties of R.N.Mallikarjunaiah. Thus, 41 OS.3151/2004 contended that the case put forth by the defendants is full of suspicion and they have failed to establish both the Wills as required under law and when the Wills are excluded, the plaintiff and defendant No.1 being classI heirs of R.N.Mallikarjunaiah and Savandamma, they are entitled for half share in the suit properties. It is also argued that the defendant No.1 and his wife have no independent income and therefore, the properties purchased in the name of 1st defendant and 2nd defendant are not their self acquired properties, which are purchased out of joint family income and plaintiff is entitled for half share even in those properties. Thus, prayed to decree the suit. In support of the arguments, the learned counsel for the plaintiff relied upon the following decisions:
1) 2005(2) SCC 217 (Janki Vashdeo Bhojwani 42 OS.3151/2004 v. IndusInd Bank Ltd.)
2) ILR 1993 Kar. 755 (Annamma v. Pattamma)
3) (2016) 3 SCC 356 (L.Gowramma (D) by LRs v. Sunanda(D) by LRs and another)
4) (2018)3 SCC 343 (Danamma @ Suman Surpur and another v. Amar and others)
5) AIR 2016 SC 769 (Prakash v. Phulavati)
6) (2005)1 SCC 280 (Meenakshi Ammal since dead by her Lrs. v. Chandrashekaran)
7) AIR 1962 AP 178 (Ryali Kameswara Rao v.
Bandapudi Suryaprakasa Rao)
8) AIR 1959 SC 443 (H.Venkatachala Iyengar v. Thimmajamma)
9) AIR 1978 Cal. 377 (Susama Bala Devi and others v. Anath Nath Tarafdar and others)
10) (1996) 9 SCC 324 (Joyce Primrose Prestor(MRS)(Nee Vas) v. Vera Marie Vas(MS) and others)
11) AIR 2005 Kar. 136 (Manjunatha Prabhu v. 43 OS.3151/2004 C.G.Srinivas)
12) (2018)12 SCC 1 (Mr.Ranvir Dewan v.
Mrs.Rashmi Khanna and others)
13) AIR 2009 SC 2561 (Gangamma v.
Nagarathnamma)
14) (2011) 9 SCC 451 (Marabasappa v.
Ningappa
15) AIR 1967 SC 1786 (Mangal Singh v.
Rattno)
16) (2009) 1 SCC 354 (K.Laxmanan v.
Thekkayil Padmini and others)
17) ILR 2008 KAR 1840 (Parappa and others v. Bhimappa and another)
18) AIR 1977 SC 74 (Smt.Jaswant Kaur v.
Smt.Amrit Kaur and others)
19) AIR 1959 SC 443 (H.Venkatachala Iyengar v. B.N.Thimmajamma and others)
20) AIR 1990 SC 396 (Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur v.
44 OS.3151/2004 Smt.Chhoti) 21) Judgment of Hon'ble High Court of Karnataka in RFA.No.1054/2003 dated 16.07.2010 (DB) (B.Ramamurthy v. S.V.Balakrishna and others).
22) 2017 SCC OnLine Mad. 587 (N.Durga Bai and others v. C.S.Pandari Bai and another)
23) (2010)10 SCC 512 (Man Kaur v. Hartar Singh Sangha)
24) Judgment of Karnataka High Court in RFA.No.916/2014 clubbed with RFA.CROV.8/2019 (PAR) dated 15.05.2020 (Padmavathi and another v. Smt.Jayamma and others)
18. On the other hand, the learned counsel for the defendants No.1 to 4, 6 and 7 contended that the plaintiff born earlier to 1956 and she was married in the year 1952 and therefore, she is not coparcener and she is not 45 OS.3151/2004 even member of joint family of R.N.Mallikarjunaiah. A married daughter is not member of joint family of her father and such being the case, the provisions of Karnataka Hindu Law Woman's Rights Act, 1933 is applicable to the facts of the case and plaintiff is not entitled for any share in the suit properties. It is further argued that 'A' Schedule property and item No.7 of 'B' Schedule properties are the self acquired properties of defendant No.1 and item No.10 of 'B' Schedule property is the exclusive property of his mother Savandamma and thus, in the said properties the plaintiff is not having any right and cannot claim any share in the said properties. It is argued that, item No.1 of 'B' Schedule property is the self acquired property of defendant No.2 and such being the case, the plaintiff cannot claim any share in the said property. It is argued that, the plaintiff married prior to 46 OS.3151/2004 R.N.Mallikarjunaiah acquired right in suit properties under partition deed dated 22.09.1964 and plaintiff has no right to claim the share. It is argued that R.N.Mallikarjunaiah has executed a Will - Ex.D.5 with respect to the most of the Schedule 'B' properties and whereas, Savandamma has also executed Ex.D.10 - Will in favour of three sons of 1st defendant with respect to item No.10 of 'B' Schedule property. The property involved in Ex.D.10 are the self acquired properties of Savandamma as she has absolute right in the property under Section 14 of the Hindu Succession Act, 1956 and she has perfect title to execute Will. Further, Will of R.N.Mallikarjunaiah is a holograph Will, which is written by him in his own handwriting and therefore, the genuineness of said Will in favour of sons of 1 st defendant cannot be doubted. The attesting witnesses to Ex.D.5 47 OS.3151/2004 and D.10 are no more and defendants have examined the sons of attesting witnesses and so also the scribe of Ex.D.10 and their evidence is in compliance with Section 69 of Indian Evidence Act and those Wills cannot be lightly doubted. Moreover, the defendants got appointed a Court Commissioner being Hand Writing Expert, who examined both the Wills Ex.D.5 and D.10 and given a categorical finding that both the Wills are genuine documents and the handwriting in Ex.D.5 is of R.N.Mallikarjunaiah and even the signatures on both the documents is established. Such being the case, the defendants established both the Wills in accordance with law and therefore, the plaintiff has no right in any of the suit properties. Thus, prayed to dismiss the suit with costs. In support of the arguments, the learned counsel for the defendants relied upon the following decisions 48 OS.3151/2004 reported in:
1) 1992(2) KLJ 48 (DB) (Smt.Annamma and another v. Puttamma)
2) AIR 1966 SC 1879 (Eramma v. Veerupana and others)
3) (2011)9 SCC 451 (Marabasappa Dead by Lrs and others v. Ningappa Dead by LRs and others)
4) AIR 2016 SC 352 (L.Gowramma v. Sunanda and others)
5) AIR 2016 SC 769 (Prakash and others v. Phulavathi and others)
6) AIR 2009 SC 2561 (Gangamma etc. v. G.Nagarathnamma and others)
7) AIR 1967 SC 1786 (Mangal Singh and others v. Smt.Rattno (Dead) by her LRs and others)
8) (1977) 3 SCC 99 (V.Tulasamma and others v. Sesha Reddy (Dead) by LRs)
9) (2016) 2 SCC 56 (Jupudy Pardha Sarathy v. Pentapati Rama Krishna and others)
10) AIR 1964(3) SCR 191 (Kalva Deva Dattam 49 OS.3151/2004 v. Union of India)
11) AIR 2018 SC 3470 (Vinod Kumar Dhal v.
Dharam Pal Dhal Deceased thru. his Lrs and others)
12) 2005(1) SCC 280 (Meenakshi Ammal since dead by her Lrs.and others v. Chandrashekaran and another)
13) AIR 1959 SC 443 (H.Venkatachala Iyengar v. B.M.Thimmajamma)
14) AIR 1962 SC 567 (Rani Poornima Devi v.
Kumar Khagendra Narayan Deb)
15) AIR 1976 Calcutta 377 (Susama Bala Devi and others v. Anath Nath Tarafdar and others)
16) 2005(11) SCC 189 (Durga v. Anil Kumar)
17) AIR 2017 Calcutta 121 (Subhash Charan Law and others v. Trupti Law)
18) AIR 1935 Patna 401 (Rameshwar Kuer and another v. Shiolal Upadhaya and others)
19) AIR 2005 KAR 136 (B.Manjunatha Prabhu Since dead by LRs v. C.G.Srinivas and others)
20)(1996) 9 SCC 324 (Joyce Primrose 50 OS.3151/2004 Prestor(MRS)(Nee Vas) v. Vera Marie Vas(MS) and others)
21) (2018)3 SCC 343 (Danamma @ Suman Surpur and another v. Amar and others)
22) (2018)12 SCC 1 (Mr.Ranvir Dewan v.
Mrs.Rashmi Khanna and others)
23) AIR 1964 SC 880 ( Kalwa Devadattam and others v. The Union of India (UOI) and others)
24) Civil Appeal Nos.45344535 of 2018 (Vinod Kumar Dhall v. Dharmapal Dhall (Deaceased) Through His Lrs and others)
25) AIR 1959 SC 443 (H.Venkatachala Iyengar v. B.N.Thimmajamma and others)
26) Civil Appeal 373 of 1958 (Rani Purnima Debi v. Kumar Khagendra Narayan Deb)
27) AIR 1976 Cal 377 (Susama Bala Devi and others v. Anath Nath Tarafdar and others)
28) (2005) 11 SCC 189 ( Durga v. Anil Kumar)
29) AIR 2018 SC 1889 (Mohan Lal v. Nand Lal)
30) AIR 1990 SC 2201 (Veerattalingam and others v. Ramesh and others) 51 OS.3151/2004
31) AIR 1951 SC 293 (Smt.Angurbala Mullick v.
Debabrata Mullick)
32) AIR OnLine 2020 SC 644
(V.Kalyanaswamy(D) by Lrs v.
V.L.Bakthavatalam(D) by LRs)
33) AIR 2003 SC 1796 (Lalit Popli v. Canara Bank and others)
34)AIR 2013 SC 633 (Ajay Kumar Parmar v.
State of Rajasthan)
35) AIR 1980 SC 531 (Murarililal v. State of M.P.)
36) AIR 1992 SC 2100 (State of Maharastra v. Sukhdeo Singh and another)
37) AIR 1967 SC 1326 (Fakhruddin v. The State of M.P.)
38) AIR 1979 SC 14 (Delhi Administration v. Pali Ram)
39) AIR 2012 SCW 5492 (Ajay Kumar Parmar v. State of Rajasthan)
40)AIR 1983 Punjab and Haryana 384 (Lal Singh and another v. Bant Singh and others) 52 OS.3151/2004
41)(2003) 2 SCC 91 (Janaki Narayan Bhoir v. Narayan Namdeo Kadam)
42) AIR 2019 SC 1900 (Shylendra Kumar Jain and others v. Maya Prakash Jain and others)
19. Keeping in mind the rival submissions, I have carefully perused the entire oral and documentary evidence. As I already narrated, the plaintiff died during the pendency of the proceedings i.e. on 29.11.2004 and her legal heirs are brought on record. The son of deceased plaintiff K.M.Rudramurthy, has filed his evidence affidavit in lieu of examinationinchief as PW1, wherein he has reiterated the averments made in the plaint on his behalf and so also on behalf of other plaintiffs holding General Power of Attorney - Ex.P.24. He deposed categorically that his grand father R.N.Mallikarjunaiah was doing cattle business and money 53 OS.3151/2004 lending business during his life time and out of the said self earned money, he has purchased 'A' Schedule property in the name of 1st defendant under sale deed - Ex.P.1. He deposed that defendant No.1 was not earning member and he was just 20 years old boy and he had no source of income to purchase 'A' Schedule property. He also deposed that as per partition deed dated 22.09.1964 item No.1 to 15 of 'A' Schedule property allotted to his share. In the year 1964, his maternal grand father, as kartha of joint family, was managing all the suit properties along with his son 1 st defendant and daughter - plaintiff. His grand father had surplus income from joint family properties and acquired several properties in his name and also in the name of his wife Savandamma and in the name of his daughterinlaw - 2nd defendant. His maternal grand father died on 54 OS.3151/2004 28.04.1992 leaving behind the plaintiff and 1 st defendant as classI heirs. He deposed that there was no partition during life time of his grand parents and during life time of his mother, there is no partition and that his mother and 1st defendant are coparceners and being joint family members, the suit properties are their joint family properties and they are acquired out of joint family funds.
20. He further deposed that item No.1 of 'B' Schedule property was purchased in the name of defendant No.2 in the year 1971 for the benefit of joint family and sale deed was executed in the year 1983 and house was constructed in the same out of joint family funds.
21. Defendant No.4/DW1 stated that his maternal grand father died at the age of 95 and his wife 55 OS.3151/2004 Savandamma died at the age of 85 years and they were not in sound state of mind for more than 25 years earlier to their death and they have not executed any Will and also had no intention to execute the Will in favour of children of defendants No.1 and 2. Even they had no absolute right to execute Will in favour of defendants No.3, 4 and 6, which are created and got up documents. Thus, prayed to decree the suit.
22. The PW1 was crossexamined by the learned counsel for the defendants in great detail. In the cross examination though he admits that he has given instruction to their counsel to prepare plaint, but added that he took instruction from his mother Gangamma and gave instruction to his Advocate to draft plaint. He has denied that he gave instruction to his Advocate to 56 OS.3151/2004 prepare plaint on his own and he never took any instruction to file suit from his mother. He has denied that his mother has not presented plaint and signature on the plaint is not the signature of his mother. He admits that the marriage of his mother took place in the year 1952 and that thereafter, she started living in the house of her husband. He admits that the 1 st defendant was lecturer in Mysore University. The Service Book and superannuation document are marked through this witness as per Ex.D.1 and D.2. He has denied that his maternal grand father was not a money lender and not doing cattle business. He admitted that his grand father was doing religious discourse and was learned man. He used to draft the documents on his own. He admitted that prior to 1964, his grand father R.N.Mallikarjunaiah had no independent personal properties of his own. He 57 OS.3151/2004 also admits that his grand father had no independent income and used to maintain himself out of the agricultural produce. He also admits that 'A' Schedule property was purchased by 1st defendant under sale deed. For a question that, 1st defendant purchased the property in 1963 out of his own income, the witness denied and stated that his grand father had got purchased 'A' Schedule property for the 1st defendant. He has no any document to show that his grand father purchased 'A' Schedule property for 1st defendant, but stated that his mother used to tell him that his grand father got purchased 'A' Schedule property for 1st defendant. He has denied that his grand father had no capacity to pay Rs.16,500/ for purchase of 'A' schedule property. He has denied that his grand father had no capacity or competency being junior member of the family to pay 58 OS.3151/2004 money towards purchase of 'A' Schedule property. He has denied suit 'A' Schedule property is not at all joint family property of his grand father. He has admitted that item No.1 of 'B' Schedule property is in actual and physical possession of defendant No.2 since 1971. He has denied that defendant No.1 has purchased the said property in the name of his wife out of love and affection from his own funds. The agreement and sale deed in the name of defendant No.2 are marked through this witness as Ex.D.3 and D.4. He has denied that item No.1 of 'B' Schedule property is self acquired property of defendant No.2. He has denied that plaintiff has no right to claim share in item No.1 of 'B' Schedule property. Ex.D.5 was confronted to the witness, wherein, he has denied that the handwriting therein is the handwriting of his grand father, but he admitted signature of his grand father, 59 OS.3151/2004 which is marked as Ex.D.5(a),(b) and (c). He has denied that the handwriting in Ex.D.5 is handwriting of his grand father. He admitted that Ex.D.5 was in the knowledge of his mother. He admitted that land Sy.No. 48(3) was acquired by the BDA and compensation was paid. He has denied that said property was given to defendant No.4 as per Will Ex.D.5 by his grand father. The Will Deed of Savandamma is confronted to this witness and he admits that the name of his grand father finds place. He has denied that his grand mother executed the Will as per said document. He admitted that item No.10 of 'B' Schedule property was self acquired property of his grand mother. He has denied that since item No.10 of 'B' Schedule property is self acquired property of his grand mother, his mother had right and share in the said property. He admits that item No.5, 9, 60 OS.3151/2004 10 and Sy.No.76 are not subject matter of arbitration proceedings and he admits that said properties are self acquired properties of his grand father and that he acquired the same out of his self earned money. The witness admitted about Ex.D.6 - Certificate issued by Secretary, Sulikere Grama Panchayat, Kengeri Hobli, Bengaluru South Taluk, with respect to item No.3. He has denied that his grand father has written the Will when he was in sound state of mind.
23. He has denied that his mother never appeared before this Court and that he has forged signature of his mother and filed false suit. He admits that item No.4 and 5 of suit 'B' Schedule property was self acquired property of his grand father. He has denied that item No.6 of 'B' Schedule property is exclusive property of 4 th defendant 61 OS.3151/2004 and he is in possession of the same. He has denied that occupancy rights were granted by Land Tribunal with respect to item No.7 of suit property. He has denied that as per Will of his grand father, exclusive right conferred on defendant No.6 with respect to item No.8 of suit property. He has even denied that item No.8 of suit property was given to 4th defendant under Will by his grand father. He has denied that Sy.No.111/12 measuring 4 acres of land is self acquired property of 4 th defendant. He has denied that defendant No.1 has invested his own funds to purchase land Sy.No.111/12. He has denied that his mother had no right, title and interest over suit schedule properties. He has also denied that he is the root cause for filing this suit and that his mother has not thought of filing this suit. He has even denied that they had knowledge about execution of Will 62 OS.3151/2004 and filed false suit.
24. The PW1 in support of his case produced documents at Ex.P.1 to P.31 in evidence.
25. Ex.P.1 is Certified copy of sale deed dated 21.02.1963 with respect to item No.1 of suit property, which is executed by P.S.Arunachalam S/o Singarvelu Modaliar, whereunder, the house is purchased as per the boundaries mentioned in the document. Ex.P.2 is Encumbrance Certificate from 21.02.1962 to 21.02.1982 with respect to item No.1 of suit property standing in the name of 1st defendant. Ex.P.3 is certified copy of gift deed dated 20.12.2001 executed by 1st defendant in favour of his son K.B.Girisha/defendant No.3, whereunder, a portion of property measuring 12.6 feet X 40 feet, out of Schedule 'A' property. Ex.P.4 is certified 63 OS.3151/2004 copy of partition deed dated 09.12.1964, which was executed between father of the plaintiff namely, R.N.Mallikarjunaiah and his brothers Nanjappa, heirs of Late Gurunanjaiah, R.G.Nanjundappa and wife of one more brother Basavaradhya namely, Smt.Badrakalamma, wherein, it transpires that all the persons had filed a suit in OS.57/1964 before the Court of District Civil Judge, Bengaluru for partition and the said Badrakalamma has also filed suit for maintenance in Misc. 349/1963, which was subsequently registered as Misc. 111/1964 and all the aforesaid 8 persons have partitioned their properties in the presence of Panchayatdars as per the arbitration agreement. It transpires that the propositor Nanjundaiah had 4 sons namely, Gurunanjaiah, Basavaradhya, Nanjappa and R.N.Mallikarjunaiah (father of the plaintiff) and that the elder son Gurunanjaiah has 64 OS.3151/2004 died and he had 5 sons namely, R.G.Nanjundappa, Jayadeva, K.G.Srikantaradhya, K.G.Puttananjundaradhya and K.M.Basavaradhya/defendant No.1 and that said K.M.Basavaradhya was adopted by R.N.Mallikarjunaiah from his childhood and thus, this goes to show that the 1st defendant is son of one of the brother of R.N.Mallikarjunaiah namely, Gurunanjaiah. The document further disclose that the second son of Nanjundappa namely, Basavaradhya also died in the year 1920 without male issues and his wife Badrakalamma remained in the family. All the four brothers and their heirs have partitioned properties making Schedule A to F. The properties fallen to the share of R.N.Mallikarjunaiah and his adopted son/1st defendant was mentioned in 'A' Schedule. The document clearly mentioned that the properties partitioned are ancestral properties. In the 'A' 65 OS.3151/2004 Schedule property totally 15 items of properties was allotted to the share of R.N.Mallikarjunaiah. Except few items, all the said properties are mentioned in the 'B' Schedule of the plaint.
26. Ex.P.5 is mutation register extract dated 28.04.1992 bearing MR.No.19/199596, whereunder, in view of death of R.N.Mallikarjunaiah the properties bearing Sy.No.48/1 measuring 6 guntas, Sy.No.48/3 measuring 2 acres, Sy.No.108 measuring 2 acres, Sy.No.150 measuring 25 guntas, Sy.No.116 measuring 1 acre 30 guntas, Sy.No.148/1 measuring 1 acre 5 guntas, Sy.No.111/6 measuring 5 guntas, Sy.No.121 measuring 1 acre 5 guntas was ordered to be mutated. It is mentioned that both R.N.Mallikarjunaiah and his wife Savandamma are no more and 1st defendant being only heir to the both 66 OS.3151/2004 and stating that both the couple have no other heirs, the mutation was ordered to be entered in the name of 1 st defendant. Ex.P.6 is certified copy of mutation extract bearing MR.No.95/96, wherein also the land in Sy.No.75 measuring 2 acres 21 guntas, Sy.No.76 measuring 3 guntas, Sy.No.77/1 measuring 1 acre 19 guntas and in Sy.No.77/2B measuring 3 acres 35 guntas said to be standing in the name of Mallikarjunaradhya was ordered to be mutated in the name of 1st defendant on the ground that said couple had no heirs except defendant No.1. It is to be noted that there is no mention about the Will executed by R.N.Mallikarjunaiah in the name of children of 1st defendant.
27. Ex.P.7 is certified copy of agreement dated 01.12.1971 executed by the 2nd defendant in favour of 67 OS.3151/2004 City Improvement Trust Board, Bengaluru (CITB) represented by its Chairman, wherein, it transpires that the 1st defendant has applied with CITB for transfer of said property in favour of his wife 2nd defendant and there is agreement about the construction of house on the property.
28. Ex.P.8 is encumbrance certificate with respect to item No.1 of 'B' Schedule property from 1971 to 1989. Ex.P.9 is tax assessment extract of item No.1 of 'B' Schedule property standing in the name of defendant No.2. Ex.P.10 is Tax Assessment Extract in respect of item No.3 of 'B' Schedule property standing in the name of defendant No.4. Ex.P.11 to P.22 are 12 RTC Extracts of various landed properties mentioned in 'B' Schedule of the plaint. Ex.P.23 is Final Notification dated 31.10.2002 68 OS.3151/2004 issued by BDA with respect to Sir.M.Visveswaraiah Layout, which pertains to land Sy.No.48/3 in the name of various persons including 1st defendant measuring 6 acres 24 guntas, wherein, an extent of 5 acres 24 guntas is proposed for acquisition for the purpose of formation of above said layout. Ex.P.24 is Original General Power of Attorney executed by plaintiff No.1(a), 1(b), 1(c), (d), 1(e) and (g) in favour of plaintiff No.1(f) son of deceased plaintiff, authorizing him to conduct the case. Ex.P.25 is Death Certificate of plaintiff, who died on 29.11.2004. Ex.P.26 & 27 are two tax paid receipts in the name of defendant No.4. Ex.P.28 is House/Land Tax Assessment Extract with respect to 3 items of properties in the name of defendant No.4. Ex.P.29 to P.31 are the xerox copy of sale deeds, all dated 25.11.2010 executed by BDA in favour of heirs of Nanjundappa including 1 st 69 OS.3151/2004 defendant, selling site bearing No.171, 172 and 173, which are item No.2A, 2B and 2C of 'B' Schedule property.
29. On the other hand, the defendant No.4 filed his affidavit evidence in lieu of examinationinchief of DW1, wherein, he has reiterated the averments made in the written statement of defendants No.1 to 4, 6 and 7.
30. DW1 has stated in his evidence affidavit that his father is aged about 77 years and he is unable to come to Court to give evidence and his mother defendant No.2 is aged about 70 years. He has also deposed that his parents and his brothers have executed power of attorney in his favour to give evidence. He deposed that his father was given in adoption to R.N.Mallikarjunaiah and that six years after the adoption, 70 OS.3151/2004 the plaintiff born to R.N.Mallikarjunaiah. He deposed about the partition between R.N.Mallikarjunaiah and his brothers and details of properties fallen to the share of R.N.Mallikarjunaiah. He deposed that item No.7, 8b, 10 and 11, properties mentioned in the partition deed were sold by R.N.Mallikarjunaiah. R.N.Mallikarjunaiah said to have purchased property bearing item No.4b of the plaint, which is land Sy.No.115/1c, measuring 27 guntas, item No.5 of the plaint 'B' schedule bearing Sy.No.77/1, measuring 1 acre 19 guntas, item No.7 i.e. land Sy.No.107 measuring 29 guntas of the properties. He further deposed that R.N.Mallikarjunaiah was a noble person, highly learned and getting income as his self earning by giving advices pertaining to conducting agricultural operations, improvement of agricultural lands and also he was getting income through his son - 71 OS.3151/2004 1st defendant, who was lecturer and thereafter, a professor. He deposed that for improvement of properties, he borrowed loan and that his father/1st defendant had also made huge investment. The witness deposed about various improvement made by him with the properties.
31. He also deposed that his grand mother - Savandamma has purchased land Sy.No.121 measuring 1 acre 5 guntas out of her 'sridhan' and same is her self acquired property. The 1st defendant has purchased land Sy.No.112, measuring 4 acres out of the money received by him from his superannuation. The defendant No.1 has constructed a temple of Malai Mahadeswara in purchased property. His mother has purchased item No.1 of 'B' Schedule property, out of her own 'sthridhan' as his 72 OS.3151/2004 father had intended to purchase the property in the name of defendant No.2 for her life security. It was vacant site and now, there is house constructed over said property.
32. DW1 also deposed that his grand father, while in sound state of mind and health, bequeathed the property allotted to him under the partition deed and so also the properties acquired by him, under a Will, which was written with his own handwriting and that the persons namely, C.B.Nanjundaradhya, V.M.Siddaramaiah, Shivarudrappa and Mahimanna were the attesting witnesses to the Will. He deposed that his grand mother has executed a Will when she was in sound state of mind, health and supported by a Medical Certificate issued by a Doctor, who was attending him. The said Wills are dated 22.02.1984 and 14.06.1984 73 OS.3151/2004 respectively. Both have bequeathed properties in favour of defendants No.3, 4 and 6. The property bequeathed by his grand father were his self acquired properties. The husband of plaintiff is the brother of her mother.
33. The DW1 was crossexamined by learned counsel for the plaintiff in great detail. He deposed that during lifetime of his grand father, he was looking after the income and expenditure of suit property. He deposed that his grand father was having other source of income, apart from income earned from agriculture. But he is unable to say the annual income of his grand father from other sources. He has denied that his grand father was not doing any other business except agriculture and money lending business. He deposed that his father/1st defendant is suffering from paralysis and unable to 74 OS.3151/2004 attend Court for giving evidence. Defendant No.1 is suffering from brain paralysis from 2004 and that there are medical records for having provided treatment to him. He has denied that he is giving evidence in order to suppress true facts by taking General Power of Attorney. He has no difficulty to produce documents with respect to treatment being taken by his father. He deposed that he has difficulty to get examined his father by taking Court Commission. He deposed that he has given instructions to his Advocate to prepare written statement. He has denied that his parents do not know the contents of written statement. His father is unable to give evidence by coming into court since he is aged about 71 years, but admitted that his mother is able to walk. In the same way, defendants No.3 and 6 Girish and Rajashekar cannot come to Court since they are not residing in 75 OS.3151/2004 Bengaluru. He has denied that since transactions took place during 1964, his parents have better information. He has denied that he does not know personally some of the facts mentioned in his evidence affidavit. He has no documents to show that the property standing in the name of propositus Nanjundappa were his self acquired properties. But he has denied that property standing in the name of Nanjundappa were ancestral properties. He has no document to show that the said properties were self acquired properties. He has denied that the properties mentioned in the partition deed fallen to the share of R.N.Mallikarjunaiah were his joint family properties. He has even denied that the said properties are ancestral properties of Nanjundappa. He deposed that out of the properties fallen to the share of his grand father, four items of properties were alienated. He 76 OS.3151/2004 deposed that his grand father has purchased five items of properties. He has denied that the said properties were purchased by his grand father out of joint family income. He has deposed about the particulars of amount spent by him for improvement of properties. He has denied that he has not done any improvement work of lands. He deposed that item No.10 of 'B' Schedule property was purchased by his grand mother and that his grand father has paid Rs.3,500/ to purchase said property. He explained that since there was litigation, he purchased the property in the name of his grand mother. He has denied that item No.9 of 'B' Schedule property was purchased out of the money left by R.N.Mallikarjunaiah. Though he stated that the said property was purchased by 1st defendant out of his self earned money and that there are documents to show that the said land is self 77 OS.3151/2004 acquired property, but no documents produced. He deposed that the temple was constructed out of the income earned from the suit property and he does not know whether there are documents to show that the same was purchased from self earned money. He has denied that the property in the name of 2nd defendant was purchased out of money paid by R.N.Mallikarjunaiah. He deposed that the amount of Rs.2,625/ paid to BDA to purchase the site in item No.1 of 'B' Schedule property, which was given to her by her father and maternal uncle and so also some money was with him. He has denied that Ex.D.5 - Will was created by himself and his father. He is able to identify the handwriting of his grand father. He deposed that there are documents, which are in the handwriting of his grand father. He deposed that his grand parents were loving 78 OS.3151/2004 their daughter/deceased plaintiff and that his grand father had no fear of trouble being caused to his son from daughter. He deposed that Sri. Ravi.B.Naik and Sri. Gopal, Advocates used to look after the litigation of his grand father at Bengaluru. He deposed that Sri. Ravi.B.Naik, Advocate was legal advisor to R.N.Mallikarjunaiah. He has denied that Ex.D.5 was not written by his grand father and that the same is created. He deposed that Ex.D.12 - Medical Certificate was with Will. He has denied that his grand father has not taken any treatment with Doctor as mentioned in Ex.D.12 and that they have created the said document. He has even denied that the house constructed on 'A' Schedule property is out of the money paid by his grand father. He deposed that as per Ex.D.1, the monthly salary of his father was Rs. 230/, in the year 1962 it was Rs. 250/ 79 OS.3151/2004 and in the year 1963 it was Rs. 270/. He has denied that the salary earned by his father was sufficient for his expenses and that his grand father has paid money to his father to purchase the house mentioned in Ex.P.1. He deposed that an extent of 1 acre 27 guntas of land was acquired by BDA in 2002, to form Sir. M.V.Extension and that only 13 guntas of land is remained in said land Sy.No.48/3, old Sy.No.48. He admits that said two acres of land was fallen to the share of R.N.Mallikarjunaiah in the arbitration award. He admitted that his father has received the compensation amount in 2004. He has admitted that BDA has given 3 sites to them, which are Site Nos.172, 173 and 174. He admits specifically that they have received Rs.12,00,000/ compensation, but denied that the plaintiff is entitled for share in three sites and so also in compensation amount. He has denied that 80 OS.3151/2004 item No.10 of 'B' schedule property was purchased out of money paid by R.N.Mallikarjunaiah and same is joint family property. He has denied that Ex.D.10 - Will was not executed by his grand mother voluntarily and same is created document. He has denied that Ex.D.5 and D.10 are created in order to avoid giving share to the plaintiff in suit properties. He has even denied that the plaintiff is entitled for share in the suit properties. The witness admitted sale deeds Ex.P.29 to 31. He has denied that other allottees shown in Ex.P.29 to 31 have got right in item No.2 of suit property and therefore, R.N.Mallikarjunaiah had no exclusive right to execute Ex.D.5 in favour of sons of defendant No.1.
34. DW1 in support of their case, produced documents at Ex.D.1 to D.40 in evidence.
81 OS.3151/2004
35. Ex.D.1 is Service Book of 1st defendant dated 31.03.1992, which indicate that he joined service as Lecturer on 25.10.1961, Ex.D.2 is Superannuation Record of 1st defendant dated 31.03.1992, Ex.D.3 is xerox copy of sale deed dated 26.12.1971 executed by one Venkatappa and his family members in favour of mother of plaintiff namely, Savanadamma with respect to item No.10 of 'B' Schedule property bearing Sy.No.121 measuring 1 acre 5 guntas. Ex.D.4 is auction sale deed dated 24.08.1983 executed by BDA/defendant No.5 in favour of defendant No.2 with respect to Site bearing No.1141 i.e. item No.1 of 'B' Schedule property. Ex.D.5 is Will Deed dated 16.02.1984 said to have been executed by R.N.Mallikarjunaiah in favour of children of defendant No.1 with respect to 12 items of properties. Ex.D.6 is Certificate issued by Soolikere Grama 82 OS.3151/2004 Panchayath on 20.10.2009 stating that property Kaneshumari No.48, New No.18/18 (item No.3 of 'B' Schedule property) is standing in the name of defendant No.4/Guruprasad. Ex.D.7 is General Power of Attorney executed by defendants No.1 to 3 and 6 in favour of defendant No.4 to conduct this case on their behalf.
36. Ex.D.8 is Sale Deed dated 13.05.1992 executed by one Mahadevamma and others in favour of 1st defendant with respect to item No.9 of 'B' Schedule property. Ex.D.9 is Sale Deed dated 26.04.1971 executed by Venkatappa and his family members in favour of mother of the plaintiff Savandamma with respect to item No.10 of 'B' Schedule property. Ex.D.10 is registered Will dated 14.06.1984 executed by Savandamma bequeathing said item No.10 of 'B' 83 OS.3151/2004 Schedule property in favour of three sons of 1 st defendant in equal portion. Ex.D.11 is certified copy of partition deed dated 09.12.1964 taken place between R.N.Mallikarjunaiah and his brothers, which is already produced by plaintiff as per Ex.P.4. Ex.D.12 is Medical Certificate dated 15.02.1984 issued by Dr.P.B.Mruthyunjayanna stating that he examined R.N.Mallikarjunaiah on 15.02.1984 and certified that he is physically and mentally fit and that he does not possess any disabilities. Ex.D.13 is M.R.Extract, wherein, the mutation of properties in the name of defendant No.4 as per Will dated 16.02.1984 and two items of properties were ordered to be mutated in the name of defendant No.4. Ex.D.14 is Tax Assessment List with respect to property bearing No.18/18 in the name of 4 th defendant by removing name of 1st defendant. Ex.D.15 is Certificate 84 OS.3151/2004 issued by Sulikere Grama Panchayat on 27.09.2005 certifying that Site No.20 was sanctioned in the name of defendant No.4/Guruprasad during 1981 from BDO Office, Bengaluru South Taluk and as per the order of Deputy Commissioner, during 199394 dated 15.07.1993, the said property was given new number as 59/59/20. Ex.D.16 is House/Land Tax Assessment List with respect to property bearing No.59/20 in the name of defendant No.4. Ex.D.17 is tax paid receipt, Ex.D.18 is Hakku Patra issued by BDO, Bengaluru South Taluk in the name of defendant No.4 with respect to Site No.20. Ex.D.19 and 20 are two tax paid receipts, Ex.D.21 is demand register extract with respect to Site No.20 in the name of defendant No.4. Ex.D.22 and D.23 are two tax paid receipts. Ex.D.24 is MR Extract with respect to site in the name of defendant No.4 and others. Ex.D.25 is 85 OS.3151/2004 Possession Certificate with respect to Site No.21 in the name of defendant No.2 allotted by BDO, Bengaluru South Taluk on 01.01.1981. Ex.D.26 is Certified copy of demand register extract of Site No.21 in the name of defendant No.2, Ex.D.27 is certified copy of Mutation Register of properties mutated in the name of defendant No.4 with respect to property No.18/18. Ex.D.28 is Certificate dated 27.09.2005 issued by Soolikere Grama Panchayat in favour of defendant No.2 stating that Site No.21 was allotted in the name of defendant No.2 by the BDO and same is mutated in the name of defendant No.4. Ex.D.29 to 32 are four tax paid receipts. Ex.D.33 to 35 are tax assessments with respect to vacant sites No.60/21 (Junger No.60), Site No.56 (Junger No.156) and Site No.60/21 (Junger No.60) in the name of defendant No.4. Ex.D.36 is demand register with respect to Site No.156/6 86 OS.3151/2004 in the name of defendant No.4. Ex.D.37 is Enumeration Form in the name of defendant No.4 with respect to House No.24. Ex.D.38 is original sale deed dated 21.02.1963 executed by P.S.Arunachalam in favour of defendant No.1 with respect to Schedule 'A' of suit property. Ex.D.39 is Original gift deed dated 20.12.2001 executed by 1st defendant in favour of defendant No.3 gifting a portion of property out of 'A' Schedule property and Ex.D.40 is Report of Forensic Document Examination issued by the Court Commissioner/DW5.
37. The plaintiff in this case has taken up a specific contention that suit properties are the ancestral properties of her father, who acquired the same in a partition between himself and his brothers in the year 1964 and therefore, she being the daughter of her father 87 OS.3151/2004 R.N.Mallikarjunaiah and the defendant No.1 being adopted son of her father, both are the coparceners and entitled for equal share in the suit properties. The plaintiff also contended that suit 'A' Schedule property was purchased by her father in the name of his brother 1st defendant and therefore, the same is also the property purchased out of own income of the father and therefore, she is entitled for half share in the suit property.
38. But, on the other hand, the defendant though admitted that R.N.Mallikarjunaiah acquired the said properties in a partition, but he has bequeathed the properties in favour of sons of 1st defendant under Will Deed Ex.D.5 and whereas, Savandamma also executed Will Deed - Ex.D.10 in favour of children of 1 st defendant and thus, the defendants have proved the Will and the 88 OS.3151/2004 children of 1st defendant have acquired an exclusive title in the bequeathed properties and therefore, the plaintiff cannot claim any share in the suit properties.
39. In this regard, as I already narrated, the plaintiff died during the pendency of the suit and her legal heirs are brought on record. The plaintiff No.1(f), who is the son of deceased plaintiff has filed his evidence affidavit narrating material facts of the plaint. In this case, there is no dispute about the relationship of the parties in the suit. The plaintiff is the daughter of R.N.Mallikarjunaiah and there is no dispute that six years prior to birth of plaintiff, R.N.Mallikarjunaiah had adopted the 1st defendant as son and 1st defendant being adopted son is also a son of R.N.Mallikarjunaiah for all practical purposes.
89 OS.3151/2004
40. In this suit, first I will take up Issue No.1 and Addl. Issue No.1 dated 31.01.2009 for appreciation as the plaintiff has made 'A' Schedule property as a separate schedule and wherein, she is claiming half share in the said property. As per the plaintiff, the defendant No.1 was 20 years old as on the date of purchase of suit schedule 'A' property and that he had no independent income of his own and was not capable of purchasing the property and that her father purchased said property in the name of 1st defendant, therefore, the said property is also joint family property of her father.
41. On the other hand, the 1st defendant contended that he has purchased 'A' Schedule property out of his own income and that his father has not contributed anything to purchase said property. It is 90 OS.3151/2004 well settled that Hindu Joint Family is presumed to be joint unless proved otherwise. The Hon'ble High Court of Karnataka in 2011 (4) KCCR 2930 (DB) (Circuit Bench at Gulbarga) (Sri.Mali Patil Basavarajappa v. Smt.Sarvamangalamma and others) has held that, 'A Hindu Family is presumed to be joint and burden of proving separation is upon a person alleging it, where a Hindu Family is shown to have been once joint, the presumption is that it continues to be joint even afterwards and hence, where the property is shown to have been once the property of joint family, it must be presumed to be continued joint till the contrary is shown.'
42. There is no dispute that R.N.Mallikarjunaiah and 1st defendant were living jointly as on the date of death of R.N.Mallikarjunaiah and it is not the case of the 91 OS.3151/2004 1st defendant that there was any partition between himself and his father. It is equally undisputed fact that the father of 1st defendant got Schedule 'B' properties (except item No.1, 2a, 2b, 2c, 9b and 10) in a partition between himself and his brothers in the year 1964 under partition deed dated 09.12.1964 - Ex.D.11. The plaintiff has produced the certified copy of sale deed as per Ex.P.1 and defendants have produced original sale deed - Ex.D.38, under which the 1st defendant purchased Schedule 'A' property. In this suit, there is no dispute that 1st defendant was an employee of the Government and retired from the Government Service. In this regard, Ex.D.1 the service book of 1st defendant is produced in the suit, which disclose that the date of birth of 1 st defendant is 19.03.1934 and he joined his duties on 25.10.1961 as Lecturer. This establish that the defendant 92 OS.3151/2004 No.1 was public servant as on 25.10.1961 and Schedule 'A' property was purchased by the 1 st defendant on 21.02.1963 as per Ex.D.38 original sale deed. If at all, the 1st defendant had purchased the said property, which is immovable property, he ought to have taken permission from his appointing authority to purchase the said property. But, in this case no document is produced to show that he purchased the said property with permission from his employer. A public servant is required to take permission from the employer to purchase an immovable property and he is required to disclose his source of income to purchase said property. But, in this case, the 1st defendant has not produced any document to show that he has taken such permission of the Government to purchase the property out of his own income. The defendant No.1 was required to produce a 93 OS.3151/2004 cogent evidence to show that he had his own income to purchase the said property. On the other hand, in this case, it is an admitted fact that during partition in the year 1964, R.N.Mallikarjunaiah and his brothers had their own self acquired properties also. Ex.D.2 reveals that the 1st defendant was retired from duties on 31.03.1992. The partition deed dated 09.12.1964 - Ex.D.11 reveals that the parties to the deed had their own self acquired properties and same were not included in the partition deed. On the basis of these materials on hand, I am of the opinion that Schedule 'A' property was purchased by R.N.Mallikarjunaiah in the name of 1 st defendant and that same is not purchased by 1 st defendant out of his own income. The burden to establish that 'A' Schedule property is self acquired property, is on the 1st defendant, but he has not produced 94 OS.3151/2004 document to establish the same. The plaintiff has discharged her initial burden to show that the joint family of R.N.Mallikarjunaiah and 1st defendant was owning sufficient number of properties and it probabalize that such properties were yielding income. The defendant No.1 has not entered the witness box to explain as to his own source of income to purchase Schedule 'A' property , out of his own income. In this suit, the 1 st defendant though on record, has failed to enter witness box to substantiate that 'A' Schedule property is his self acquired property. The fact whether the said property is self acquired property or purchased by R.N.Mallikarjunaiah in the name of 1st defendant was within his special knowledge and had the 1st defendant entered witness box, the plaintiff would have elicited whether suit 'A' Schedule property was purchased out of his own income. 95 OS.3151/2004 Consequently, the suit being one for partition, the plaintiff need not seek any relief to set aside the sale deed as seeking partition of the property is sufficient as per judgment of the Hon'ble High Court of Karnataka in ILR 1998 KAR 2127 (Vadde Sanna Hulugappa and others v. Vadde Sanna Hulugappa, deceased), wherein, it is held that, 'it has been laid down by this Court in Ganapathi Santharam Bosle and another v. Ramachandra Subba Rao Kulkarni and others, that, in a suit for partition by Hindu Coparcener, it is not necessary to seek setting aside of alienation and it is sufficient to seek his share and possession with declaration that he is not bound by the alienations.'
43. The PW1 has deposed categorically that 'A' Schedule property was purchased by his grand father in 96 OS.3151/2004 the name of 1st defendant and even in the cross examination by the counsel for the defendants, nothing elicited to show that said property is the self acquired property of 1st defendant. In the crossexamination of PW1, though PW1 admitted that R.N.Mallikarjunaiah had no independent income of his own and he was agriculturist, but PW1 has also stated that he was doing finance business. Even the learned counsel for defendants himself suggested to PW1 that his father was doing religious discourses and was a learned man. He also admitted that he used to draft documents on his own and giving advice to the persons, who comes to seek advice with him. This probabalize that R.N.Mallikarjunaiah was earning money out of his activities. The document Ex.D.1 produced by the defendants indicate that 1st defendant was having meager 97 OS.3151/2004 salary of Rs.250/ per month during those days and 'A' Schedule property was purchased only after one year and four months of joining 1st defendant in service. DW1 in his crossexamination by learned counsel for the plaintiff has admitted in Page No.42 of the deposition that his father was working as Lecturer in Maharani College, Mysore during 196163 and that at that time he had no his own house and they were living in a rented house. The witness do not know the monthly rent and expenditure and savings of his father. Though he denied that the total income of his father was Rs.3,000/ and this is to be taken as annual income. The witness himself admitted that he has not produced document to show that his income was more than Rs.3,000/. Thus, it is clear that the defendant No.1 has not produced document to show his independent income, which 98 OS.3151/2004 enabled him to purchase 'A' Schedule property for Rs.16,500/. The burden being upon the 1 st defendant to establish that he purchased property out of his own income and he having not produced any such cogent evidence and hence, it is to be held that the defendants have failed to establish that 'A' Schedule property is the self acquired property of 1st defendant.
44. In this case, DW1/defendant No.4 has given evidence on behalf of defendants on record, in whose favour a portion of 'A' Schedule property was gifted by 1 st defendant under gift deed dated 20.12.2001 (Ex.D.39). Even this witness has not given a cogent evidence to accept that 'A' Schedule property is the self acquired property of his father. The crossexamination of DW1 reveals that he born on 25.12.1963 and the Schedule 'A' 99 OS.3151/2004 property having purchased earlier to his birth, he cannot be expected to speak about the source of income of his father. In the crossexamination, he has clearly deposed that his grand father was having other source of income, apart from income earned from agriculture. He himself stated that his grand father was Deed Writer and used to teach 'Vedas'. Though he deposed that his parents are residing in Chamarajpet, but his father is unable to attend court due to paralysis. But, it is seen that no evidence produced to show that his father was suffering from paralysis. He is not even ready to examine defendant No.1 through commission, which is permissible under law. He has gone to the extent of saying that he has given instructions to his Advocate to draft written statement. This goes to show that the defendant No.1 has not filed written statement in this case. His mother, 100 OS.3151/2004 though was able to move, but no explanation given for nonproduction of her to the court for giving evidence. Though he denied that the property in the name of his great grand father - Nanjundappa was ancestral property, but the document Ex.D.11 - partition deed, itself clearly mention that all the parties have partitioned the properties, which are ancestral properties. This goes to show that evidence of DW1 is contrary to the documentary evidence. He has denied that the suit properties are ancestral properties of his great grand father. Thus, based on the oral and documentary evidence, I am of the clear opinion that Schedule 'A' property is not a self acquired property of 1 st defendant and that same was purchased by him out of the money of his father. The Hon'ble Supreme Court in AIR 1961 SC 1268 (Mallesappa Bandeppa Desai and another v. Desai 101 OS.3151/2004 Mallappa @ Mallesappa and another) has held as under:
"Where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded form his separate fund. The onus of proof must in such a case be placed on the manager and not on his coparceners."
45. Further, the Hon'ble High Court of Karnataka in ILR 1991 KAR 4506 (Thammegowda v. Siddegowda) has held as under:
"I) In a case where the joint family possessed sufficient nucleus and the property was purchased by the 'kartha' of the family, 102 OS.3151/2004 the burden shifts upon the 'kartha' of the family to prove that he had purchased the properties in his name which he claimed to be his selfacquired properties through an independent source of income and not from the income derived form the joint family properties."
46. Thus, even in this case, it is an admitted fact that the joint family of 1st defendant and his father was owning number of properties and when the defendant No.1 claims that he acquired 'A' Schedule property out of his own income, the burden is upon him to prove the same. But, the defendant No.1 has not entered witness box nor his wife defendant No.2, to establish that they acquired 'A' Schedule property out of their own income. The defendants No.1 and 2 only can establish that they had independent income and purchased the property out 103 OS.3151/2004 of such income. When the defendants failed to establish that Schedule 'A' property is not a self acquired property of 1st defendant and there being evidence to show that his father was alive and having no independent income of his own, the plaintiff being coparcener, as per the judgment of the Hon'ble Supreme Court in 2020(3) KCCR 1993 (SC) (Vineeta Sharma v. Rakesh Sharma and others), she is entitled for half share in 'A' Schedule property. The Hon'ble Supreme Court in the above said judgment at para No.29 has held that, 'the provisions contained in substituted Section 6 of Hindu Succession Act, 1956 confers status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities'. The gift deed - Ex.D.39 executed by 1 st defendant in favour of his son - defendant No.3 with respect to portion of 'A' Schedule property is 104 OS.3151/2004 unauthorized and same is liable to be held as not binding on the share of the plaintiff'. The 1 st defendant had himself no right in the said property and therefore, he cannot convey better title in favour of his son - defendant No.3.
47. In this suit, the plaintiff is claiming half share in 'B' Schedule properties on the ground that her father acquired those properties in a partition between himself and his brothers. In this case, so far as partition between R.N.Mallikarjunaiah and his three brothers is concerned, there is no dispute. A perusal of Ex.D.11 - partition deed reveals that the propositus - Nanjundappa was having four sons namely, Gurunanjaiah, Basavaradhya, Nanjappa and R.N.Mallikarjunaiah. Gurunanjaiah died in 1962 leaving behind his five sons and that 1 st defendant 105 OS.3151/2004 appears to be one of the son of said Gurunanjaiah and that he was brought up by R.N.Mallikarjunaiah and adopted as his son. The said four sons are only heirs of Nanjundappa and that Basavaradhya died in 1920 and his wife Bhadrakalamma was there in the joint family. It is stated that R.N.Mallikarjunaiah and his son first defendant were held to be entitled to 1/3rd share and properties mentioned in 'A' Schedule of partition deed - Ex.D.11 are allotted to the share of both. It is seen that some 15 items of properties are allotted to the share of R.N.Mallikarjunaiah. Except item No.1, 9 and 10, other properties are mentioned in 'B' Schedule of plaint. There being overwhelming evidence to state that said properties were ancestral properties of propositus Nanjundappa and same is being mentioned in the document, they are the coparcenary properties of plaintiff and 1 st defendant. 106 OS.3151/2004 Even in the written statement itself, the defendants No.1 to 4 and 6 admitted that properties allotted to the share of R.N.Mallikarjunaiah were ancestral properties. Thus, when the properties acquired by R.N.Mallikarjunaiah held to be ancestral properties and the plaintiff having declared as coparceners by birth as per the judgment of Hon'ble Supreme Court in Vineeta Sharma's case (supra), along with coparcener - 1st defendant, she is having birth right in the said properties. Thus, the concept of survivorship having given gobye as per the Hindu Succession Act, 2005, as per the judgment of Hon'ble High Court of Karnataka reported in 2010(2) KCCR 1249 (DB) (Pushpalatha.N.V. v. V.Padma and others), the plaintiff though born prior to coming into force of Hindu Succession Act, 1956 and though married prior to 1956 (1952), her status of coparcener would not change. In 107 OS.3151/2004 this regard, the argument of learned counsel for the defendants that the properties were acquired subsequent to marriage of the plaintiff and therefore, she has no right in the property, cannot be accepted. The properties fallen to the share of 1st defendant and his father R.N.Mallikarjunaiah were ancestral properties and before partition in the year 1964, the plaintiff was very much available in the joint family of R.N.Mallikarjunaiah and his brothers and when she has acquired her right in the property by birth, her marriage in the year 1952 or her birth prior to 1956 would not change her status as coparcener of the family with respect to properties acquired by her father in a partition. The Hon'ble Supreme Court in (2006)8 SCC 581 (Sheeladevi and others v. Lalchand and another) has held as under: 108 OS.3151/2004
"So long as a property remains in the hands of a single person, the same is to be treated as a separate property and thus, such person would be entitled to dispose of the coparcenary property as if the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten. But once a son is born, it becomes a coparcenary property and he would acquire an interest therein."
48. The Hon'ble Supreme Court has further held that, 'as per the 'Mithakshara Law' in usage prior to commencement of 1956 Act, once a son was born, he acquires an interest in the coparcenary property as an incident of his birth - hence, a son having been born prior to commencement of 1956 Act, would retain his 109 OS.3151/2004 share of properties as a coparcener even after the commencement of 1956 Act, while the father's share shall devolve upon his heirs according to provisions of 1956 Act'. Now, as I already pointed out, as per the law declared by the Hon'ble Supreme Court in Vineeta Sharma's case (supra) 'the daughter is a coparcener by birth and when that is so, her marriage prior to coming into force of Hindu Succession Act 1956 or her ceasing to be member of Joint Family of her father would not change her status of coparcener. When once her right accrued in the properties of her father, no further incident would extinguish such right. Even when the father of the plaintiff died in the year 1992, the Succession opened and plaintiff and defendant No.1 being classI heirs of R.N.Mallikarjunaiah are entitled to half share each in the properties left by him and so also 110 OS.3151/2004 properties acquired by defendants No.1 and 2 out of the nucleus earned from the joint family properties.
49. Here in this case, the defendants have propounded Will - Ex.D.5 said to have been executed by R.N.Mallikarjunaiah on 16.02.1984 and same is said to be a Holograph Will. Further, the wife of R.N.Mallikarjunaiah namely, Savandamma is also said to have executed one more Will - Ex.D.10 in favour of three sons of 1st defendant. But, however, a careful perusal of both documents reveal that there are number of suspicious circumstances surrounded both the Wills. As rightly argued by learned counsel for the plaintiff, there is no reason as to why R.N.Mallikarjunaiah do not give even a single property to his daughter, who was very much alive at the time of alleged execution of both the 111 OS.3151/2004 Wills. No reason is given to disinherit the plaintiff in the property of her parents. Moreover, as I already held, the properties acquired by R.N.Mallikarjunaiah were ancestral and coparcenary properties and when this is so, when coparceners - 1st defendant and plaintiff are alive, R.N.Mallikarjunaiah had no right to execute the said Will Deed. When R.N.Mallikarjunaiah himself had no exclusive right in the concerned 'B' Schedule properties, he had no right to execute Will Deed in favour of the sons of 1st defendant. The defendants have failed to establish that Ex.D.5 is in the handwriting of R.N.Mallikarjunaiah and even the DW5 relied upon the documents, which are not part of evidence and compared the writings of such documents with disputed documents and therefore, the defendants failed to prove that Ex.D.5 is a Holograph Will of R.N.Mallikarjunaiah. In view of that, the decisions 112 OS.3151/2004 relied upon by the learned counsel for the defendants No.1 to 4, 6 and 7 in B.Manjunath Prabhu, Joyce Primrose Prestor Nee Vas and Mohan Lal's case (supra) are not applicable to the facts of the case on hand.
50. The sale deed - Ex.D.9 in the name of Savandamma with respect to item No.10 of 'B' Schedule property indicate that the said property was purchased by her. But, the alleged Will Ex.D.10 clearly reveal that she had no movable and immovable properties of her own and that her husband R.N.Mallikarjunaiah out of his own income purchased said property in her name. The document Ex.D.10 itself clearly state that the same is not her selfacquired property. The said property was property of R.N.Mallikarjunaiah and she had no right to execute Will in favour of sons of 1st defendant. Therefore, 113 OS.3151/2004 defendant No.1 has failed to establish that both the Wills are genuine documents.
51. The defendants have examined DW2 to DW4 to prove said Wills. As per the defendants, the attesting witnesses are no more and their heirs are examined, but as I already stated, there are number of suspicious circumstances shrouded around the Will. The first circumstance is that, R.N.Mallikarjunaiah has disinherited his own daughter for no reasons. In the same way, the Will of Savandamma if perused, it is clear that she also not spoken any strong reasons to side line her own daughter from giving any properties. This is peculiar fact as the Hon'ble Supreme Court in Vineeta Sharma's case has observed that, "A son is a son until he gets a wife. A daughter is a daughter throughout her life." . This 114 OS.3151/2004 observation was made by the Hon'ble Supreme Court based on the quote in Savita Samvedi (Ms) & Anr. v. Union of India & Ors., 1996 (2) SCC 380. The above said quote indicate the natural love and affection of parents upon their daughter. When such being the case, there is no explanation of whatsoever manner or defendants put forth any strong reasons for R.N.Mallikarjunaiah and his wife to give away all their properties to their adopted son, when their biological daughter is very much alive. Disinheriting their own daughter from their properties is a strongest circumstance to disbelieve both Wills and there is no satisfactory evidence, which remove the suspicion shrouded the Wills. The defendants produced the Medical Certificate - Ex.D.12 issued by Doctor to show that R.N.Mallikarjunaiah was medically fit. The said document has been denied by plaintiff and the 115 OS.3151/2004 defendants have not clarified as to at whose instance the said document issued and author of document has not been examined. Moreover, this document itself creates serious doubt as defendants have created Will with pre plan only with an intention to disinherit the plaintiff in claiming the properties, which are ancestral properties. The defendants in their evidence have nowhere spoken as to why their parents neglect their daughter. R.N.Mallikarjunaiah had vast number of properties and such being the case, it cannot be believed that he could neglect his own daughter without giving anything.
52. The defendants has produced Ex.D.5 Will of R.N.Mallikarjunaiah stating that said Will is Holograph Will, but no document produced to show that handwriting in the Will are belonging to 116 OS.3151/2004 R.N.Mallikarjunaiah. No witnesses examined to prove the handwriting of Mallikarjunaiah stating that they are acquainted with handwriting of R.N.Mallikarjunaiah. The learned counsel for the defendants has produced a note book and some piece of papers in it, said to be in the handwriting of R.N.Mallikarjunaiah, but said documents has not been produced in evidence. As rightly argued by the learned counsel for the plaintiff, the 1st defendant got mutated the properties acquired by R.N.Mallikarjunaiah in the partition, in his name, but he has not produced the said Will before the revenue authorities to prove that the Wills were in existence. It is well settled that mere registration of Will is no reason to accept its genuineness. In (2006) 2 KCCR 993 (Patrick Rebellow and others v. Victor Rebellow and others), the Honb'le High Court of Kranataka has held that, 'mere fact that the Will is 117 OS.3151/2004 registered Will not by itself be sufficient to dispel all suspicions regarding it.'
53. The defendants examined handwriting expert DW5, who submitted his report as per Ex.D.40 in evidence. The DW5 examined Ex.D.5 Holograph Will said to have been executed by R.N.Mallikarjunaiah. The witness compared a notebook said to be containing handwriting of Mallikarjunaiah, but said document has not been produced in evidence. If at all R.N.Mallikarjunaiah had written documents, the defendants ought to have produce the same to prove that the same is in his handwriting. The plaintiffs have nowhere admitted that the handwriting contained in the said notebook and piece of papers is handwriting of R.N.Mallikarjunaiah. The Handwriting Expert is required 118 OS.3151/2004 to compare disputed handwriting with admitted handwriting. But, in this case, no document containing admitted handwriting of R.N.Mallikarjunaiah is produced in evidence and therefore, comparing Ex.D.5 and Ex.D.10 with a document, which is not admitted by plaintiff and not being part of evidence, is of no consequence. Moreover, under Section 69 of Evidence Act, the evidence of DW5 is in no way relevant and not sufficient compliance with the requirements of Section 69 of Evidence Act. Therefore, evidence of DW5 does not establish that Ex.D.5 is in the handwriting of R.N.Mallikarjunaiah. A careful perusal of Ex.D.5 reveal that the said document ends in the last para and handwriting of the witnesses is different, then the entire body of document. No explanation is forthcoming as to why the said handwriting is different then the alleged 119 OS.3151/2004 handwriting of R.N.Mallikarjunaiah in the body of document. The defendants have not disclosed as to when the attesting witnesses to said document have died and no document produced to show that they are no more. As per defendants itself, Savandamma executed Will Ex.D.10 in favour of sons of 1st defendant on 14.06.1984 and said document is alleged to have been written by B.Nanjundaradhya of Chikkanahalli Village. It is not clarified as to when the said scribe died. It is seen that the witnesses of Ex.D.5 are also attesting witnesses to Ex.D.10. When R.N.Mallikarjunaiah could write his own Will - Ex.D.5, it is not clarified as to why he has not written this document Ex.D.10. Absolutely no explanation is forthcoming from defendants in this regard. Moreover, the sale deed Ex.D.9 under which Savandamma said to have purchased item No.10 of 'B' Schedule property as 120 OS.3151/2004 herself stated that she has purchased the property and in the Will Ex.D.10 she stated that she had not owning any immovable property and that R.N.Mallikarjunaiah, out of his own income has purchased the said property in her name. This indicate that Savandamma has not purchased said item of property as she had no income and R.N.Mallikarjunaiah, his wife and defendants, who were living in joint family and there is no evidence produced to show that they had their own independent source of income apart from suit schedule properties. The plaintiff having established that the family of R.N.Mallikarjunaiah was owning more number of properties, it probabalize that the properties were yielding income and there was nucleus, which is sufficient to purchase the property in the name of his wife Savandamma. The defendants have not clarified as to when the scribe and attesting 121 OS.3151/2004 witnesses of Ex.D.10 died. Therefore, these two Wills are shrouded with abundant suspicious circumstances and said documents are unworthy of credence. Moreover, R.N.Mallikarjunaiah is not competent to bequeath the properties in favour of sons of 1 st defendant, when the said properties are held to be joint family and coparcenary properties. The Hon'ble High Court of Karnataka in AIR 2003 KAR 245 (V.K.Thimmaiah and others v. Smt.V.K.Parvathi and others) has held as under:
"Hindu Law - Joint family properties - Execution of will in respect thereof - Although executant had described properties as self acquired properties - Division of properties under will appeared to be dividing family properties among his children - Being joint family properties, no right whatsoever vested in him to bequeath said properties 122 OS.3151/2004 under will without consent of other co parceners - Will is therefore not binding on them."
54. Thus, the principles of law laid down in above said decision clarify that the kartha of joint family has no right to change the character of joint family property by transferring the same either under Will or under Gift without the consent of other coparceners treating the ancestral properties as his absolute properties. Even in this case, as I already held, based on the evidence the suit 'B' Schedule properties, except item No.1, 9 and 10, were coparcenary properties of R.N.Mallikarjunaiah since he acquired those properties under partition between himself and his brothers and the coparcener - plaintiff when alive, the execution of Will without consent of plaintiff is without right and same is not binding on the 123 OS.3151/2004 plaintiff.
55. The Hon'ble Supreme Court in K.Lakshman's case (supra) has clearly held that, 'even where plea of suspicious circumstances is not raised, but circumstances give raise to doubt, the propounder must satisfy conscience of the Court by removing such doubt'.
56. But, in this case, the nature of documents created by the defendants and their attitude right from beginning indicate that they have some how put all their efforts to see that, the real daughter of R.N.Mallikarjunaiah shall not get any property. This attitude of the defendants is glaring in the documents created by them and so also the nature of defense they have taken in the suit. Moreover, as I already held the properties acquired by R.N.Mallikarjunaiah under 124 OS.3151/2004 partition deed were coparcenary properties and he was not authorized to bequeath property in favour of 1 st defendant byepassing his own daughter/coparcener /plaintiff. The documents clearly establish that the property purchased by Savandamma are not her self acquired properties. Even said property (item No.10 of 'B' Schedule property) was got purchased by her husband in her name. This goes to show that even Savandamma had no absolute ownership in the suit properties. Such being the case, the plaintiff being classI heir of R.N.Mallikarjunaiah along with the 1st defendant, is entitled for half share in the suit properties as per schedule of the Hindu Succession Act, 1956. When once the plaintiff established that the suit properties are coparcenary properties and the properties purchased by 1st defendant and Savandamma under sale deeds are the 125 OS.3151/2004 properties purchased out of joint family income, the said properties also become joint family properties and coparcenary properties, the defendant No.1 and Savanadamma are not authorized to gift and bequeath the properties respectively in favour of sons of 1 st defendant and those gift deeds are not binding on the half share of the plaintiff in the suit properties
57. The plaintiff has claimed her share in the item No.1 of 'B' Schedule property purchased by defendant No.2 - C.M.Nagarathna, but the sale deed produced by defendant No.2 as per Ex.D.4 reveals that said properties were allotted to her by BDA/defendant No.5 under auction sale deed dated 24.08.1983 Ex.D.4 and some properties are granted to her by the Block Development Officer under the documents and those documents clearly 126 OS.3151/2004 indicate that they are the self acquired properties of defendant No.2. Such being the case, those properties fall under purview of Section 14 of Hindu Succession Act and they are the absolute properties of defendant No.2 and plaintiff cannot claim share in said properties. The plaintiffs have not produced documents to show that the 1st defendant contributed to purchase said property out of his income in the name of defendant No.2
58. It is admitted fact that the BDA acquired land Sy.No.48/3 (portion of item No.11 of suit 'B' Schedule property) and paid Rs.12,00,000/ to 1 st defendant as compensation. There is overwhelming evidence on record to show that the said property was also acquired by R.N.Mallikarjunaiah in a partition and said property is also coparcenary property of plaintiff and 1 st defendant. 127 OS.3151/2004 When that is so, the plaintiff is entitled for half share in the compensation amount received by 1st defendant from BDA. In the written statement, the defendants admitted that the 1st defendant has received the said amount from BDA.
59. The plaintiff claimed share in properties bearing No.171 to 173 (item No.2A to 2C of suit 'B' Schedule properties) said to have been allotted to the heirs of Nanjundappa including 1st defendant as per Ex.P.29 to 31. But a careful perusal of Ex.P.29 to P.31 reveals that the said properties are not only granted to 1 st defendant, but also names of other heirs of Nanjundappa, namely, K.G.Puttananjundaradhya, who is son of deceased Gurunanjundaradhya, N.Ravishankar, who is son of R.G.Nanjundappa, the defendant No.1, who is son 128 OS.3151/2004 of R.N.Mallikarjunaiah and K.N.Shivakumaradhya, who is son of Nanjapparadhya, K.N.Nanjundaradhya, who is son of Nanjapparadhya and wife of Srikantaradhya namely, Smt. Gangambike is finding place in the documents and that the said heirs are not parties to the suit. Without the said persons being parties to the suit, rights of the parties with respect to those three items of properties cannot be adjudicated. Therefore, the plaintiff is not entitled for any share in those properties, which are item No.2A to 2C in Schedule 'B' properties.
60. A careful perusal of partition deed Ex.D.11 goes to show that a partition took place between four sons of Nanjundappa, who are Gurunanjaiah, Basavaradhya, Nanjappa and R.N.Mallikarjunaiah. It transpires that 1st defendant is the son of elder brother 129 OS.3151/2004 Gurunanjaiah and it further goes to show that said Gurunanjaiah died in the year 1962 and that Basavaradhya died in 1920 leaving behind his wife Bhadrakalamma, who had no issues. The document further goes to show that 'A' schedule property as mentioned in the document, fallen to the share of R.N.Mallikarjunaiah. It is further seen that, land survey No.75, measuring 1 acre 16 guntas of Kommaghatta village, land survey No.116, measuring 1 acre 13 guntas, Sy.No.48, measuring 2 acres, Sy.No.108, measuring 1 acre 6 guntas, Sy.No.108, measuring 34 guntas, Sy.No.111, measuring 5 acres, Sy.No.97, measuring 5 acres 30 guntas, Sy.No.148, measuring 5 guntas Sy.No.147, measuring 12 guntas, property No.48, measuring 6 guntas and an open space, all situated at Ramasandra village and further Land Sy.No.79/77, 130 OS.3151/2004 measuring 3 acres 36 guntas, Sy.No.10, measuring 10 guntas, Sy.No.12, measuring 1 acre and a house No.48, all situated at Kommaghatta village are also fallen to the share of R.N.Mallikarjunaiah. But a perusal of plaint schedule goes to show that properties mentioned in the partition deed which are item Nos.4, 8, 9, 11, 12 of 'B' Schedule coupled with one item in item No.4 i.e. land Sy.No.116 measuring 1 acre 13 guntas find place in the plaint schedule. Further, item No.7, 9 to 12, 14 does not find place in the plaint schedule and they are not available for partition. The land Sy.No.115/1c as mentioned as one of the item in item No.4 of 'B' Schedule property of the plaint schedule is not finding place in the partition deed. It is not clarified what happened to said Sy.No.115/1c and who purchased the said property. In the Will - Ex.D.5, there is mention that 131 OS.3151/2004 item No.10 of 'B' Schedule property, the Land Sy.No.121 measuring 1 acre 5 guntas was said to have been acquired by R.N.Mallikarjunaiah and standing in the name of Savanadamma and both the couple have determined to give the said property to the plaintiff Gangamma but some how, the said property was not given to plaintiff but it was bequeathed by Savanadamma in favour of the three sons of 1 st defendant viz., defendants No.3, 4 and 6 and there is nothing mentioned about the decision of couple to give said property to the plaintiff though it is stated that both have determined to pay Rs.20,000/ to plaintiff/Gangamma but it is nobodies case that in fact, the said amount was paid to plaintiff though there is no reason for not giving item No.10 of property to plaintiff. Thus, the Ex.D.10 is also suspicious document and cannot be accepted. A 132 OS.3151/2004 perusal of Ex.D.5 goes to show that land Sy.No.108, measuring 1 acre 6 guntas, further 34 guntas in the same survey number of Ramasandra Village, land Sy.No.13, measuring 20 guntas, land Sy.No.77/1 and 75, measuring 1 acre of Kommaghatta village and thus, these four items of properties were bequeathed in favour of defendant No.6 K.V. Rajashekar. Further, land Sy.No. 48, measuring 5 guntas of Ramasandra village, land Sy.No.77/2, measuring 3 acre 36 guntas of Kommaghatta village, land Sy.No 77/1 and 77, measuring 1 acre of Kommaghatta village and land Sy.No.13, measuring 20 guntas of Kommaghatta village, were bequeathed in favour of defendant No.3 K.B.Girish by making it 'B' schedule property. Further, 12 items of properties mentioned in 'C' schedule are bequeathed in favour of defendant No.4 Guruprasad. 133 OS.3151/2004 The lands mentioned in Sy.No.75, measuring 1 acre 16 guntas, further 25 guntas in the same survey number and totally, 2 acre 15 guntas, Sy.No. 116, measuring 1 acre 10 guntas of Ramasandra village, 30 guntas of land in Sy.No.115, of Ramasandra village said have been purchased by one Ningamma, land Sy.No.76, measuring 3 guntas of Kommaghatta village, land Sy.No.111, measuring 5 acres of Ramsandra village, land Sy.No.218, measuring 2 acre of Ramasandra village, Sy.No.12, measuring 1 acre of Kommaghatta village, Sy.No.11, measuring 17 guntas of Kommaghatta village, Sy.No.48, measuring 6 guntas of Ramasandra village, an open space situated in Gramatana of Mankanapalya, Ramasandra, house bearing Kaneshumari No. 48 of Kommaghatta village and land Sy.No.107 measuring 30 guntas of Ramasandra village are all given to defendant No.4. 134 OS.3151/2004 Document Ex.D.5 goes to show that more number of properties were given to 4th defendant and no reason is forthcoming. This R.N.Mallikarjuna is said to be witness to Ex.D.10 Will in the name of Savanadamma, but therein also no reason given to disinherit the plaintiff from the suit property.
61. The document Ex.D.10 itself reveal that the property involved therein, which is item No.10 of 'B' schedule property was purchased by her husband R.N.Mallikarjunaiah out of his own labour and further reveal that, same was purchased in the name of Savandamma. The sale deed - Ex.D.9 is with respect to the property involved in Ex.D.10. The sale deed dated 26.04.1971 also reveals that Savandamma purchased the property from one Venkatappa S/o Tolabyraiah and 135 OS.3151/2004 others, but it is the specific case of the plaintiff that said property is not self acquired property of Savandamma. This contention of the plaintiff is supported by averments of the Will - Ex.D.10. Thus, when the Savandamma had no right in the property, the question of she executing the Will - Ex.D.10 in favour of three sons of 1 st defendant does not arise. Moreover, this Will Deed is suspicious document as the said document was said to have been scribed by one C.B.Nanjundaradhya. But, when R.N.Mallikarjunaiah could write his own Will out of his own handwriting, what prevented him from writing this Will also is not explained. Therefore, the Will - Ex.D.10 as propounded by the defendants with respect to said property (item No.10 of 'B' Schedule property) cannot be accepted.
136 OS.3151/2004
62. In this regard, the defendants examined DW3
- C.M.Basavaradhya, who is said to be the son of said scribe C.B.Nanjundaradhya and the witness deposed that the signature appearing on Ex.D.10 is his father's signature and that the document is in the handwriting of his father. He also deposed that his father told him that R.N.Mallikarjunaiah has written a Will on 16.02.1984 in his own handwriting and that his father is dead, but he does not say when his father died.
63. Further, the defendants examined DW4 - Mahina Rangaiah S/o Late Mahimanna, who said to be the son of the attesting witness to Ex.D.5 and 10 namely, Mahimanna and his father's signature is marked as Ex.D.5(e) and 10(b) and witness identified the signature of his father. In the crossexamination by learned counsel 137 OS.3151/2004 for the plaintiff though he stated that he has seen his father signing many documents, but stated that there is no other document in which signature of his father is found.
64. DW5 C.Ashwathappa - Handwriting Expert and Court Commissioner appointed by this Court by order dated 02.09.2013, who examined Ex.D.5 and Ex.D.10, wherein, he said to have compared admitted signatures with the disputed signatures on Ex.D.5 and D.10 and filed Expert Report under Ex.D.40.
65. It is seen that in order to establish the Will Ex.D.5 and D.10, the defendants are required to comply the provisions of Section 63 of Indian Succession Act, 1925 and provisions of Section 68 of the Evidence Act. The definition clause of attested as provided in Transfer 138 OS.3151/2004 of Property Act is also to be borne in mind. In this case, as I already narrated, in order to establish the genuineness of the Will and so also the execution of Wills
- Ex.D.5 and D.10 and as I already held , the defendants have examined DW2 to DW5. DW2 -
C.N.Jagadisharadhya @ C.N.Jagadishaiah and DW3 - C.N.Basavaradhya are the sons of C.B.Nanjundaradhya, who is one of the attesting witness of Ex.D.5 the will executed by R.N.Mallikarjunaiah on 16.02.1984 and Ex.D.10 the Will executed by Savandamma - the wife of R.N.Mallikarjunaiah on 14.06.1984. The witnesses have identified signature of their father on Ex.D.10 as Ex.D.10(a) and the handwriting and signature of their father on Ex.D.5 as per Ex.D.5(d). Further, DW4 - Mahina Rangaiah is the son of Late. Mahimanna, who is also one of the attesting witness to Ex.D.5 and Ex.D.10. 139 OS.3151/2004
DW2 and DW3 have stated that they know R.N.Mallikarjunaiah and that they know his handwriting and also they have seen the signatures of R.N.Mallikarjunaiah and their father, but they have not identified the signature of R.N.Mallikarjunaiah in both the documents and signature of R.N.Mallikarjunaiah was not marked in the evidence. Mere identifying signature of father of DW2 and DW3 is not sufficient compliance of requirement of law. In the same way, DW4 also being son of deceased Mahimanna, who is the son of attesting witness and though he stated that he can identify the handwriting of R.N.Mallikarjunaiah in the Will written by him and that he would identify the signature on the Will of R.N.Mallikarjunaiah and so also the writings of his father and his signature on the Will of Savandamma, but he too failed to identify the signature of 140 OS.3151/2004 R.N.Mallikarjunaiah on Ex.D.5 and so also the signature of Savandamma and R.N.Mallikarjunaiah on Ex.D.10. Only the signature of his father marked as Ex.D.5(e) and Ex.D.10(b) through this witness and signature of R.N.Mallikarjunaiah and Savandamma has not been marked through this witness.
66. Thus, reading of the principles of law laid down in the above said judgment, go to show that in order to establish the Will, in case the attesting witnesses are no more, the propounder shall prove the same under Section 69 of Evidence Act that he shall examine one of the person, who has acquaintance with the signature of any one of the attesting witness and also the executant of the document. It is further held that, in case the witnesses are dead, it must be established about the factum of death of attesting witnesses. It is held that 141 OS.3151/2004 mere pleading in the plaint as to their death itself is not sufficient for establishing the factum of death of attesting witness. The concerned party ought to have filed death certificates of concerned attesting witnesses to prove their alleged death. Thus, even in this case, the defendants have not produced the death certificates of the attesting witnesses to Ex.D.5 and D.10 and so also the scribe of Ex.D.5. In the same way, the DW2 to DW4 have not identified the signature of R.N.Mallikarjunaiah and Savandamma on both the Wills. The DW2 to DW4 have not even stated the date of death of attesting witnesses in their evidence affidavit. The examinationinchief of DW2 to DW4 does not comply the legal requirement of Section 69 of Evidence Act and their noncross examination is in no way affected the case of the plaintiff as the defendants themselves have not produced cogent 142 OS.3151/2004 evidence to comply the requirements of Section 69 of the Evidence Act. The Hon'ble Supreme Court in (Babu Singh v. Ram Sahai @ Ram Singh) case reported in (2008)14 SCC 754, has held as under:
"Evidence Act, 1872, Section 69 - Applicable in absence of attesting witnessonly when the party moves court for purposes under Order 16 Rule 10 CPC but despite issuance of summons, the witness fails to obey the summons, can the will be proved in the manner indicated in Section 69 - Mere statement of counsel of the plaintiff that the attesting witness was won over by the opposite party not sufficient to prove his absence - Handwriting of the attesting witness and signature of the person executing the will must be proved - Burden of proof then shifts on others - Civil Procedure Code, 1908, Order 16 Rule 10."143 OS.3151/2004
67. Though DW5 handwriting expert has compared the questioned signatures Q1 to Q10 in Ex.D.5 and one more questioned signature in Ex.D.10 and that Ex.D.5 and D.10 are questioned documents and though he has compared the same with admitted signatures A1 to A11, but the document bearing alleged admitted signatures is not part of evidence in this case. The report of Expert is marked as Ex.D.40 in this case. The report disclose that receipt dated 28.02.1978, dairy note book of 1967, sale deed dated 06.06.1973 and one more sale deed dated 26.06.1974, are chosen as admitted documents. But said documents bearing admitted signatures of R.N.Mallikarjunaiah are not produced and marked in their evidence. The learned counsel for the defendants during course of arguments submitted that since the Court Commissioner has referred those 144 OS.3151/2004 documents in his report, therefore, the same are part of evidence. But I am unable to accept the said submission of learned counsel for the defendants as the said documents cannot be accepted, as the plaintiff never admitted those documents. Moreover, when a particular procedure is prescribed by law to establish the Will, the attesting witnesses of which are died and when the said procedure has not been complied, the evidence of expert will not be of any help to the defendants to prove the Wills. In view of the above, the decisions relied upon by the learned counsel for the defendants in Rani Poornimadevi, Sushma Baladevi, Durga, Veerathalingam and Meenakshi Annad's case (supra) are not applicable to the facts of the case on hand.
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68. The Hon'ble Supreme Court in Kalyan Singh's case (supra) has held as under:
"It has been said almost too frequently to require repetition that a Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from false hood the court is not confined 146 OS.3151/2004 only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party."
69. The Hon'ble Supreme Court has held that Will constituting another person as sole legatee totally disinheriting testator's wife and producing the Will before the Court or public authority after long lapse of time, despite having opportunity to produce earlier are such suspicious circumstances. In the absence of explanation by satisfactory material, said Wills are not acceptable. 147 OS.3151/2004 Even in this case, the alleged Will disinherit the own daughter of the testator and testatrix and defendants have no explanation for the same nor in both the Wills any reliable reason is mentioned. Though in one of the Will it is determined to give one property to plaintiff and so also Rs.20,000/, but same was not given. Thus, the Will propounded by defendants is full of suspicious circumstances and cannot be accepted as genuine document.
70. The Hon'ble Supreme Court in Thimmajamma's case (supra) at para No.18 has held as under:
"What is the true legal position in the matter of proof of wills ? It is wellknown that the proof of wills presents a recurring topic for decision in courts and there are a large 148 OS.3151/2004 number of judicial pronouncements on the subject. 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, we must inevitably refer 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 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called 149 OS.3151/2004 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. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression " a person of sound mind " in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as 150 OS.3151/2004 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. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would primafacie 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 satisfaction of the, prudent mind in such matters."151 OS.3151/2004
71. In the crossexamination by learned counsel for the plaintiff, DW5 has denied that the signature appearing on questioned and admitted documents is not of the same person. Further, the witness deposed that he has only compared the signature and denied that the contents of Ex.D.5 and signature therein are not of same person. During the course of arguments, it transpired that the witness has compared a note book said to be containing signature and handwriting of R.N.Mallikarjunaiah, but it is seen that said document and paper pieces are not marked in evidence and the DW5 has not chosen any signature of R.N.Mallikarjunaiah appearing in said document for comparison with Ex.D.5 and D.10. Thus, the evidence of DW5 cannot be accepted. DW2 to DW4 have not identified the signature of R.N.Mallikarjunaiah in Ex.D.5 152 OS.3151/2004 and D.10 and those signatures are not marked in evidence. This goes to show that the defendants have not complied the requirements of Section 69 of Evidence Act. The evidence of DW5 will not help the defendants to comply the requirements of Section 69 of Evidence Act. 72. Consequently, the defendant No.3, 4 and 6 have not acquired any valid title in the respective properties mentioned in the Will. Moreover, as I already stated that as per the judgment of Hon'ble Supreme Court in K.Lakshmanan's case (supra), the Will shall satisfy the conscience of the Court regarding its execution and in this case, there is no satisfactory evidence to show as to why the parents of plaintiff shall disinherit their own daughter from getting any property though they had good number of properties. Moreover, the defendants 153 OS.3151/2004 have not clarified as to when the attesting witnesses to both the Will expired and no death certificates produced to establish that the attesting witnesses and scribe of Ex.D.5 have died. Though there is no crossexamination in this regard by the counsel for the plaintiff, but it being incumbent upon the defendants to prove both the Wills by examining atleast one attesting witness as required under Section 68 of Evidence Act and said requirement has not been complied to the satisfaction of this Court.
73. It is seen that this Court by order dated 04.11.2015 allowed the applications filed by the plaintiff to recall DW1 to DW5 for crossexamination and the same was challenged by the defendants before the Hon'ble High Court of Karnataka in WP.No.31267 31268/2016 (GMCPC) and the Hon'ble High Court of 154 OS.3151/2004 Karnataka by order dated 07.08.2019 has allowed the writ petition in part and set aside the order of this court recalling DW3 to DW5 for further crossexamination stating that, 'the said witnesses are not the attesting witnesses to the subject documents in question, but they are only their children, relatives and that they have already stated about the signature of attesting witnesses and that no purpose will be served by recalling them to the witness box for further crossexamination'. However, it is clear from the records that the defendants have not clarified as to when attesting witnesses have died and no death certificate is produced to prove their death. Even a perusal of provisions of Section 69 of Evidence Act reveals that in case no attesting witness can be found, it must be proved that the attestation of one of attesting witness atleast is in his handwriting and that the 155 OS.3151/2004 signature of the person executing the document is in the handwriting of that person. The Hon'ble High Court of Madras in N.Durga Bai's case (supra) has held as under:
"In the petition filed by the Plaintiffs for Letters of Administration it is the categorical pleadings of the plaintiffs to the effect that both the attesting witnesses were dead. Whereas in the chief examination it is the contention of P.W.1 that the attesting witnesses whereabouts are not known. These tow contradictions in the statements of the Plaintiffs clearly invites a serious doubt in the mind of the Court and if the attesting witnesses are really dead, the plaintiffs can very well prove the will by resorting to Section 69 of the Indian Evidence Act by examining one of the persons who has acquaintance with the signature of any one of the attesting witnesses and also the executant of the document. Before resorting 156 OS.3151/2004 to the provision under Section 69 of the Indian Evidence Act to prove the will, it must be established by the plaintiffs the factum of death of attesting witnesses. Mere pleading in the plaint as to their death itself is not sufficient for establishing the factum of the death of the attesting witnesses. The plaintiff ought to have filed death certificates of the concerned attesting witnesses to prove their alleged death. But no attempt whatsoever has been made by the plaintiffs in that regard. Therefore, the contention of the plaintiffs that both the attesting witnesses were dead, cannot be countenanced without establishing the factum of death of the above witnesses."
(Underlined by me)
74. Thus, I find that in this case, DW2 to DW4 though identified the signature of attesting witness, but failed to identify the signature of R.N.Mallikarjunaiah or 157 OS.3151/2004 Savandamma on Ex.D.5 and D.10 as the signatures of both the couple has not been got marked in evidence. The examinationinchief of DW2 to DW4 itself will not comply the requirements of Section 69 of Evidence Act and therefore, their non crossexamination by the counsel for the plaintiff will in no way benefit to the defendants in proving both the Wills. Thus, the defendants have failed to establish that R.N.Mallikarjunaiah and Savandamma have executed Ex.D.5 and Ex.D.10 - Will Deeds.
75. The defendants having failed to establish the Will, the question of this Court comparing signatures of R.N.Mallikarjunaiah with other documents will not arise as no admitted documents produced in evidence to enable this court to compare his signature under Section 158 OS.3151/2004 73 of Evidence Act. Moreover, it is well settled that, the Court should be slow to base its finding solely on comparison made by it. The decision in B.Manjunatha Prabhu's case (supra) relied upon by learned counsel for the defendants, is not applicable to the facts of the case on hand since the defendants failed to establish that Ex.D.5 - Will is in the handwriting of R.N.Mallikarjunaiah. Other decisions in Lalit Popli, Ajay Kumar Parmar, Murarilal, Sukhdeo Singh, Fakhruddin and Pali Ram (supra) as relied upon by learned counsel for the defendants in this regard are not applicable to the facts of the case on hand.
76. On careful perusal of partition deed - Ex.P.4 reveals that land Sy.No.75 measuring 2 acres 21 guntas (item No.4), Sy.No.116 measuring 1 acre 30 guntas 159 OS.3151/2004 (portion of item No.4 'C' property), Sy.No.48 measuring 2 acres, out of that 2 guntas (item No.11), Sy.No.108 measuring 1 acre 6 guntas and Sy.No.108 measuring 34 guntas (together forming item No.8 measuring 2 acres), Sy.No.111, measuring 5 acres (item No.9), Sy.No.148 measuring 5 guntas (item No.12) and Sy.No.48 measuring 6 guntas(item No.11) coupled with these properties, two more items of properties all together 15 items of properties, were fallen to the share of R.N.Mallikarjunaiah as per Schedule 'A' of the properties. It is seen that some five properties mentioned therein were fallen to the share of R.N.Mallikarjunaiah and not in this suit schedule. It is not known what happened to the said items of properties. One more land Sy.No.115/1C shown as one of the item i.e. item No.4, of the plaint schedule, is not in the partition deed.
160 OS.3151/2004
77. The plaintiff produced Ex.P.15 - RTC of land Sy.No.107 totally measuring 3 acres 5 guntas standing in the name of various persons including 1st defendant, wherein, 29 guntas of properties is standing in the name of 1st defendant. The plaintiffs in the rejoinder have stated that land Sy.No.107 of Ramasandra Village is an Inam Land endowed to Sri.Beeradevaru and being a tenant, the plaintiff's father has filed tenancy application in the year 1974 and occupancy right was granted in the name of plaintiff's father in the year 1982. The khatha of said property is said to have been transferred in the name of 1st defendant by inheritance and same is joint family property. Defendants No.1 to 4 in para No.14 of their written statement, have admitted that, the said property was originally belonging to Lord Beeradevaru and subsequently, it came to R.N.Mallikarjunaiah and later, it 161 OS.3151/2004 devolved upon 1st defendant. By this admission in the written statement, the defendants admitted that the said property was granted in favour of R.N.Mallikarjunaiah and the property granted in favour of R.N.Mallikarjunaiah enures to the benefit of entire family including plaintiff. Thus, the plaintiff is entitled for share in item No.7 of 'B' Schedule property
78. Further, the defendants have failed to establish that item No.10 of 'B' schedule property is exclusive property of Savandamma as the sale deed - Ex.D.9 itself clearly mention that the property was purchased out of the funds contributed by her husband. The defendants have failed to establish with cogent evidence that Savandamma executed Will dated 14.06.1984 and bequeathed item No.10 of 'B' Schedule property in favour 162 OS.3151/2004 of three sons of 1st defendant. In the same way, the defendants No.3, 4 and 6 have also failed to establish that R.N.Mallikarjunaiah executed Will dated 16.02.1984 and bequeathed properties in favour of sons of defendant No.1 viz., defendants No.3, 4 and 6. When once the defendants failed to prove both the Wills, naturally the plaintiff being coparcener, as per the amended Section 6 of the Hindu Succession Act, 2005, she is also entitled for half share in the item No.10 of 'B' Schedule property.
79. The defendants produced medical certificate - Ex.D.12, which again goes to show the hypercautious attitude of the defendants. If at all the Will was executed by Savandamma or R.N.Mallikarjunaiah, the defendants would not have got change khatha in their names on the basis of inheritance. In this suit, both Wills were 163 OS.3151/2004 produced much later in the proceedings and they have not mentioned about the Wills in the written statement.
80. A careful perusal of document Ex.D.8 - sale deed dated 13.05.1992 go to show that deceased defendant No.1 has purchased this property bearing Sy.No.111/12 measuring 4 acres, which is item No.9b of plaint schedule, for Rs.1,96,000/. It is an admitted fact that the 1st defendant was in Government Service and was working as Lecturer in the college and at the time of purchase of said land, he was admittedly retired from the service and therefore, it can be probabalized that same is his self acquired property. Moreover, PW1 in his evidence affidavit has not specifically stated that even during 1992, the defendant No.1 had no independent income. In the crossexamination by learned counsel for 164 OS.3151/2004 the defendants, PW1 has denied that land Sy.No.111/12 measuring 4 acres is self acquired property of defendant No.4. He does not know from whom defendant No.4 has purchased said Sy.No.111/12. He has even denied that the defendant No.1 has invested his own funds towards purchase of Sy.No.111/12. DW1 in the crossexamination by the learned counsel for the plaintiff has denied that item No.9b of suit 'B' Schedule property was purchased out of the money left by R.N.Mallikarjunaiah. Considering the entire evidence on record, I find that item No.9b of suit 'B' Schedule property is self acquired property of defendant No.1 and therefore, the plaintiff is not entitled for any share in the said property.
81. Further, the document Ex.D.4 reveals that item No.1 of 'B' Schedule property site bearing No.1141 165 OS.3151/2004 was allotted in favour of defendant No.2 by defendant No.5/BDA by auction sale deed dated 24.08.1983. As per the plaintiff, this property is also joint family property of plaintiff and defendants. DW1 in crossexamination by learned counsel for the plaintiff, has denied that R.N.Mallikarjunaiah had paid money, which was to be deposited with R.N.Mallikarjunaiah, but there is no pleading in the plaint that his grand father R.N.Mallikarjunaiah had credited money with BDA to purchase item No.1 of 'B' Schedule property. But, the property was allotted exclusively in favour of defendant No.2 and such being the case, she being in possession of property, it becomes her absolute property under Section 14 of Hindu Succession Act, 1956 and plaintiff cannot claim share in these properties. Thus, except these five items of properties, all other properties are ancestral and 166 OS.3151/2004 coparcenary properties of the plaintiff and defendants. As per the judgment of Hon'ble Supreme Court in Vineeta Sharma's case (supra), the plaintiff will be coparcener from her birth and there having not been taken place any partition in the family of 1st defendant by written and registered partition deed, the suit properties are available for partition.
82. The argument of learned counsel for the defendants that as per the Karnataka Hindu Women's Rights Act, 1933, the suit property vested with Savandamma cannot be accepted, as the plaintiff is successful in establishing that both the Will Deeds - Ex.D.5 and D.10 are created documents. It is very much clear that the plaintiff having successfully demonstrated that, the suit properties, except five items of properties, 167 OS.3151/2004 are the coparcenary properties, R.N.Mallikarjunaiah or Savandamma have no exclusive right to bequeath the said properties in favour of sons of 1st defendant. Therefore, both the Will Deeds are required to be discarded. Moreover, as per the judgment of Hon'ble High Court of Karnataka in AIR 1982 KAR 198 (T.M.Channabasamma by Lrs v. T.M.Rudraiah) Hindu Succession Act, 1956 will have an overriding effect on Mysore Hindu Law Women's Rights Act, 1933. In view of law laid down by the Hon'ble Supreme Court in Vineeta Sharma's case (supra), when the daughter is held to be coparcener by birth and when the suit properties are coparcenary properties, the provisions of Karnataka Hindu Law Women's Rights Act, are not applicable to the facts of the case and therefore, the decisions relied upon by the learned counsel for the defendants in Annamma as 168 OS.3151/2004 well as L.Gowramma's case (supra) are not applicable to the facts of the case on hand.
83. The plaintiffs are not entitled for any share in the incentive sites granted in favour of defendant No.1 and others, which are item No.2a, 2b and 2c of suit 'B' schedule properties as the plaintiff has not made the other beneficiaries or allottees mentioned in the sale deeds Ex.P.29 to 31, as parties to the suit.
84. Thus, I hold that plaintiffs are successful in establishing that they are together entitled for half share in 'A' and 'B' schedule properties, except five items of properties i.e. item No.1 of 'B' Schedule property, item No.2a, 2b and 2c of 'B' Schedule properties and item No.9b of 'B' Schedule property, as mentioned above. Further, they are also entitled for half share i.e. 169 OS.3151/2004 Rs.6,00,000/ out of compensation of Rs.12,00,000/ received by 1st defendant from BDA/defendant No.5 towards acquisition of portion of item No.2 of 'B' Schedule property. Ultimately, the plaintiffs are entitled for partition and separate possession of their mother's half share in the suit schedule properties except five items as mentioned above, by metes and bounds and half share in compensation amount. The plaintiffs also made out grounds for enquiry for mesne profit from the date of suit, till the possession is handed over to them in Final Decree Proceedings. Thus, the suit of the plaintiff has to be decreed in part. Therefore, I have answered Issue No.4 and 5 in the affirmative, Issue No.1, Issue No.3 and Addl. Issue No.1 dated 31.01.2009 are answered partly in the affirmative and Issue No.2, 6, 7, 8, 9, Addl. Issue No.1 dated 11.12.2007 and Addl. Issues No.1 dated 170 OS.3151/2004 02.04.2013 are answered in the negative.
85. ISSUE NO.10: In view of my findings on above said issues, the suit filed by the plaintiff has to be decreed in part with costs. Hence, in the result, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed in part with costs.
The LRs of deceased plaintiff, viz., plaintiffs No.1A, 1B, 1B(a) &(b), 1C, 1D(a) to (c), 1E, 1F and 1G are together entitled for partition and separate possession of their half share in the suit 'A' and 'B' Schedule Properties, except five items (item No.1 of 'B' Schedule properties, item No.2a, 2b and 2c of 'B' Schedule properties and item 171 OS.3151/2004 No.9b of suit 'B' Schedule properties) by metes and bounds and also entitled for half share i.e. Rs.6,00,000/ towards compensation received by deceased defendant No.1 from BDA/defendant No.5.
There shall be separate enquiry regarding mesne profit in the Final Decree Proceedings under Order 20 Rule 18 of CPC.
Draw preliminary decree accordingly.
(Dictated to the Judgment writer directly on computer, typed by her, thereafter corrected and then pronounced by me, in the open Court, on this the 3 rd day of November 2020).
(Dr. KASANAPPA NAIK) XLI ADDL. CITY CIVIL JUDGE BENGALURU.
172 OS.3151/2004ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff/s' side:
P.W.1 K.M.Rudramurthy
b) Defendant/s' side:
D.W.1 K.B.Guruprasad
D.W.2 C.N.Jagadisharadhya
D.W.3 C.N.Basavaradhya
D.W.4 Mahinarangaiah
D.W.5 C.Ashwathappa
II. List of documents exhibited on behalf of:
a) Plaintiff/s' side:
Ex.P.1 Certified copy of sale deed dated 21.02.1963 173 OS.3151/2004 Ex.P.2 C/c of encumbrance Certificate Ex.P.3 C/c of gift deed dated 20.12.2001 Ex.P.4 C/c of partition deed Ex.P.5 and P.6 Mutation register extracts Ex.P.7 C/c of agreement executed by K.N.Basavaradhya Ex.P.8 C/c of encumbrance certificate Ex.P.9 Tax assessment extract of item No.1 of B Schedule property Ex.P.10 Tax assessment extract in respect of item No.3 of B Schedule property Ex.P.11 to 22 12 RTC Extracts of suit schedule property Ex.P.23 Final Notification Ex.P.24 Original General Power of Attorney Ex.P.25 Death Certificate of mother of PW1 Ex.P.26 & 27 Two tax paid receipts Ex.P.28 Land tax assessment extract Ex.P.29 C/c of sale deed dated 25.11.2010 executed by BDA in favour of K.G.Puttananjundaradhya 174 OS.3151/2004 Ex.P.30 C/c of sale deed dated 25.11.2010 executed by BDA in favour of K.G.Puttananjundaradhya Ex.P.31 C/c of sale deed dated 25.11.2010 executed by BDA in favour of K.G.Puttananjundaradhya
b) Defendant/s' side:
Ex.D.1 Service book dated 31.03.1992
Ex.D.2 Superannuation record dated 31.03.1992
Ex.D.3 Agreement
Ex.D.4 Auction sale deed
Ex.D.5 Document for signature identification
purpose
Ex.D.5(a) to (c) Signatures
Ex.D.6 Certificate issued by Sulikere Grama
Panchayath
Ex.D.7 Deed of GPA
Ex.D.8 Sale deed dated 13.05.1992
Ex.D.9 Sale deed dated 26.04.1971
175 OS.3151/2004
Ex.D.10 Registered Will dated 14.06.1984
Ex.D.11 Partition deed dated 09.02.1964
Ex.D.12 Medical Certificate
Ex.D.13 M.R.Extract
Ex.D.14 Certified copy of tax assessment
Ex.D.15 Certificate issued by Sulikere Grama
Panchayat
Ex.D.16 Tax assessment
Ex.D.17 Tax receipt
Ex.D.18 Possession Certificate issued by BDA
Ex.D.19 & 20 2 Tax paid receipts
Ex.D.21 Demand Register Extract
Ex.D.22 & 23 Two tax paid receipts
Ex.D.24 M.R.Extract
Ex.D.25 Possession Certificate
Ex.D.26 Certified copy of demand register
Ex.D.27 Certified copy of Mutation Register
Ex.D.28 Certificate issued by Sulikere Grama
Panchayat
176 OS.3151/2004
Ex.D.29 to 32 3 Tax paid receipts
Ex.D.33 to 35 3 Certified copy of tax assessments
Ex.D.36 Certified copy of demand register
Ex.D.37 Enumeration Form
Ex.D.38 Original sale deed dated 21.02.1963
Ex.D.39 Original gift deed dated 20.12.2001
Ex.D.40 Report of DW5
Ex.D.40(a)to (c) Signatures
(Dr. KASANAPPA NAIK)
XLI ADDL. CITY CIVIL JUDGE
BENGALURU.