Bangalore District Court
Maj (Mrs) E. P Subhadra vs Smt. Anni Saldanha on 15 March, 2022
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 15th day of March, 2022.
O.S.No.17613/2005
Plaintiffs:- 1. Maj (Mrs) E. P Subhadra,
W/o Late Roman Anthony Saldanha,
Aged about 52 years,
R/at No.707A, 12th Cross,
Vinayakanagar,
HAL P. O,
Bengaluru -560 017.
2. Smt. Anni Saldanha,
W/o Late J. F Saldanha,
Aged about 66 years,
R/at No.707A, 12th Cross,
Vinayakanagar, HAL PO,
Bangalore-560 017.
(Now Deceased)
[By Mr. A Vijay Sai -Adv for
Plaintiff No.1]
[By Mr. Bharath Kumar. V - Adv for
2
O.S.No.17613/2005
Transposed Plaintiff No.2]
[Transposed Plaintiff No.2 died
during pendency]
V/s
Defendants:- 1. Smt. Anni Saldanha,
W/o Late J. F Saldanha,
Aged about 66 years,
R/at No.707A, 12th Cross,
Vinayakanagar, HAL PO,
Bangalore-560 017.
(Now Transposed to Plaintiff No.2)
2. Mrs. Rita Saldanha,
D/o Late J. F Saldanha,
Aged about 49 years,
R/at No.707A, 12th Cross,
12th Cross, Vinayakanagar,
HAL PO, Bengaluru -560 017.
3. Mrs. Florine D'Souza,
W/o Gilbert D'Souza,
C/o Smt. Anni Saldanha,
Aged about 51 years,
R/at No.707A, 12th Cross,
12th Cross,Vinayakanagar,
HAL PO, Bangalore-560 017.
4. Kumari Pallian,
D/o Pallian,
W/o Sali A.A,
Aged abioyt 49 years,
R/at No.65, 2nd Cross,
3
O.S.No.17613/2005
4th Main, Narayanappa Garden,
Tavarekere,
Bengaluru-560 028.
[By Sri. M. L Gowda & Associates- Adv
for D-2 and D-3)
[by Sri. VGH- Adv for Defendant No.4]
Date of Institution of the suit 16.11.2005
Nature of the (Suit or pro-note, suit
Suit for Partition and
for declaration and possession, suit
Declaration
for injunction, etc.)
Date of the commencement of
07.11.2011
recording of the Evidence.
Date on which the Judgment was
15.03.2022
pronounced.
Year/s Month/s Day/s
Total duration 16 03 27
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
.
4
O.S.No.17613/2005
JUDGMENT
Initially Plaintiff No.1 has filed the present suit for the relief of Partition against the Defendant Nos.1 to 3.
Plaintiff filed Memo, not pressing the suit. Defendant No.1 got Transposed as Plaintiff No.2. Defendant No.4 was impleaded, on the motion of the Transposed Plaintiff No.2.
Thereafter, the Plaintiff No.1 got amended the Suit Plaint seeking the relief of Declaration of her title over the Suit Schedule Property.
2. The brief facts of the Plaintiffs case are as under:
It is the case of the Plaintiffs that, the Suit Schedule Property belongs to her husband Mr. Roman Anthony Saldanha, who had purchased the said property under the Registered Sale Deed dtd.14.08.2001. Since then he was in possession and enjoyment of the said property, paying the taxes regularly. He died on 22.04.2005, leaving behind him, his wife- the Plaintiff; his mother - the Defendant No.1;5
O.S.No.17613/2005 his younger sister- the Defendant No.2; and another sister - Defendant No.3. Plaintiff is residing in the Ground floor. Defendant Nos.1 and 2 are residing in the First floor of the Suit Schedule Property; and the 2nd floor is currently vacant. The Defendant No.3 is residing with her husband in Kanakapura. Khata pertaining to the Suit Schedule Property was got changed, jointly in the names of the Plaintiff and the Defendant No.1, after the death of her husband. There exist a house loan pertaining to the Suit Schedule Property that was taken from the Citi Bank. However, the repayments of the said loan was entirely done by her, right from the beginning and even after the death of her husband. None of the Defendants have contributed towards repayment of the said loan amount.
Further contends that, her husband Mr. Roman Anthony Saldanha was an Indian Christian and the Partition of the Scheduled property is guided by the Indian Succession Act. She is entitle for her share in the Scheduled Property, being the widow of Mr. Roman Anthony Saldanha. Since few months there was 6 O.S.No.17613/2005 quarrel and misunderstanding inbetween her and the Defendants, for which she demanded Partition and separate possession of her share in the Suit Schedule Property, but the Defendants have evaded to Partition the same. Hence she is constrained to file the present suit for Partition.
Further contends that, she is in legal possession and enjoyment of the Suit Schedule Property jointly with Defendant Nos.1 and 2.
Hence, prayed to decree the suit.
3. Suit summons were issued to the Defendants (Defendant Nos.1 to 3). Defendant Nos.1 to 3 have appeared through their counsel on 03.12.2005. The Defendant Nos.1 to 3 have filed common Written Statement on 23.01.2006.
4. The Defendant Nos. 1 to 3 have denied all the allegations made by the Plaintiffs in the Suit Plaint and have specifically contended that, the husband of the Defendant No.1 by name J F Saldanha, a Roman Catholic and an Indian Christian, was working as Head 7 O.S.No.17613/2005 Cashier at the State Bank of Mysore in Masti Kattee Branch, Shivamoga, District. He died on 17.05.2001 in Mangala Nursing Home at Mangalore, leaving behind him, his wife Anni Saldanha- Defendant No.1 and three children's viz.. 1) Mr. Roman Anthony Saldanha- husband of the Plaintiff; 2) Florin D'souza - Defendant No.2; and 3) Rita Saldanha - Defendant No.2. He had died Intestate. The husband of the Plaintiff and the Defendants have succeeded the estate left by J F Saldanha including his death claim benefits, payable by the State Bank of Mysore. Defendant No.1 being his wife was getting family pension from the said Bank. She was having a Saving Bank Account bearing No.1979 at State Bank of Mysore, Masti Kattee Branch, Shivamoga Dist. After the death of her husband, she received a total sum of Rs.16,26,768/- towards his LIC, pension computation and other benefits upto 08.04.2005. The said amount was deposited in her Saving Bank Account, alongwith her monthly family pension. Later on i.e., on 09.07.2001 her SB Account was transferred to HAL 2nd Stage Branch, Benglauru 8 O.S.No.17613/2005 and the said account is renumbered as SB A/c No.172024 and all the amounts which were standing in her SB Account at Masti Katte Branch, were transferred to the transfree branch. On computerization of the Bank accounts, her SB Account was again renumbered as 01190005307. On 14.08.2001, the Defendants and the husband of the Plaintiff purchased the Suit Schedule Property from its erstwhile owners Sri. K. R Iqbal Ahammad S/o Late Khazi Abdul Rasheed of Bengaluru for the valuable consideration of Rs.8,75,000/-, which was paid out of the death benefits received in the event of death of the husband of the Defendant No.1, as well as from her family pension. The said purchase was made under the Registered Sale Deed dtd.14.08.2001. During this period the husband of the Plaintiff was operating an account with the ICICI Bank, Bengaluru and he has withdrawn a sum of Rs.1,50,300/- and Rs.9,81,960/- from the SB Account of the Defendant No.1 bearing No.1979 through DD, drawn on ICICI Bank, Bengaluru on 07.06.2001 and 09.07.2001, respectively. And has obtain a Pay Order bearing 9 O.S.No.17613/2005 No.069039, dtd.13.08.2001, drawn on ICICI Bank, for a sum of Rs.8,75,000/-, which was paid to Mr. Iqbal Ahammad on the date of registration of the above Sale Deed, towards sale consideration amount of Rs.8,75,000/-. Even this fact has been found mentioned in the said Sale Deed as, 'the said sale consideration paid out of his father's amount'. The registration fees and stamp papers etc., also have been paid out of the death benefit amount of the husband of the Defendant No.1 which has flown from her SB Account. So it is clear that, the husband of the Plaintiff has not contributed any amount towards purchase of the Suit Schedule Property. Even the open Site, situate at BTM Layout, Bengaluru is purchased out of the death benefit amount of the husband of the Defendant No.1. The husband of the Plaintiff has not even contributed for acquisition of the said Site. The Suit Schedule Property and the said vacant Site, do not exclusively belong, either to the husband of the Plaintiff, or to the Plaintiff. On the day of purchase of the Suit Schedule Property, the husband of the Plaintiff and the Defendants herein 10 O.S.No.17613/2005 have taken possession of the Suit Schedule Property and has occupied the same. At the time of purchase of the Suit Schedule Property, the Plaintiff was working as a Major at Ambla, Betula Dist. of Madhya Pradesh, at Airforce Hospital. Thereafter, she was transferred to Bengaluru Airforce Military Hospital. On her transfer, she has occupied and is residing in the Ground floor of the Suit Schedule Property, since 23.10.20015. The Ground floor which is in occupation of the Plaintiff, consist of 2 bedrooms, a hall, a kitchen, a toilet, a dinning hall. Earlier to her transfer, she was residing in the Military Quarters, at the places were she was working. Before her transfer to Bengaluru and after the purchase of the Suit Schedule Property, the Defendants were in possession of the entire Suit Schedule Property, alongwith the husband of the Plaintiff. Further contends that, before the marriage of the Plaintiff with her husband, she was an Hindu and she was a Keralite. Before her marriage, she was converted to Christianity and thereafter she got married to her late husband on 18.10.1995 at Masti Katte Town of 11 O.S.No.17613/2005 Shivamoga District, Karnataka State, as per the Indian Christian Customs and Rites. For all legal purposes, the parties to the suit are all Indian Christians and governed by the provisions of Indian Succession Act.
Further contends that, the husband of the Plaintiff was working as Sarjent 'B' Rank, bearing No.694119 in Airforce at Ambla and he was retried from his services in the month of February 2005 at Ambla, Bethul District of Madhya Pradesh. He died due to Heart Attack at Government Hospital of Saoner of Saoner Thahasil of Nagapur District, Maharashtra State. After his death, the Plaintiff and the Defendant No.1 have jointly submitted an application to the Assistant Revenue Officer, Jeevanbhima Nagar Ward, Bengaluru Corporation for transfer of Khata inrespect of the Suit Schedule Property, in their joint names. After holding due enquiry, the said Authorities have transferred the Khata of the Suit Schedule Property in the joint names of the Plaintiff and the Defendant No.1. So this clearly establishes that, the Suit Schedule Property is not the absolute property of the husband of the Plaintiff.
12O.S.No.17613/2005 Further contends that, the Suit Schedule Property and the vacant Site, situate at BTM Layout are in joint possession and enjoyment of the Plaintiff and the Defendants. They are the co-owners of the said properties. They are the tenants in common. All of them are having equal share in the said properties. Plaintiff has deliberately omitted to bring the above said vacant Site situate at BTM Layout, into the common hotchpot and by misleading and mispresentation, she seeking her alleged share in the Suit Schedule Property only. So the suit of the Plaintiff is not maintainable, on this count.
Further contends that, the Plaintiff inorder to claim absolute right over the Suit Schedule Property and the vacant Site, had filed two separate applications before the concerned authorities for deletion of the joint name of the Defendant No.1, appearing in the Khata of the Suit Schedule Property; and for transfer of Khata in her name, inrespect of the vacant Site, situate at BTM Layout. On having the intimation of the same, they have field objections for changing the Khata of the Suit 13 O.S.No.17613/2005 Schedule Property. This suit is filed after transfer of joint Khata in the name of the Plaintiff and the Defendant No.1. the Plaintiff and her henchmen tried to dispossess the Defendant Nos.1 and 2 from the Suit Schedule Property, but they have resisted the said illegal acts, and or in possession of the Suit Schedule Property. Even the Defendant No.1 advised the Plaintiff to come to a understanding to have Partition in the Suit Schedule Property, by metes and bounds and to take separate possession of her 1/4th share in the Suit Schedule Property; and also her 1/4th share in the vacant Site, situate at BTM Layout. But the Plaintiff refused to get effected the Partition and to have share. On the otherhand, she claimed false, illegal and exclusive title over the Suit Schedule Property and the vacant Site, situate at BTM Layout. Surprisingly, she had filed the present suit.
Further contends that, Defendant No.1 is a widow, she is quite innocent and ignorant lady. She is aged morethan 56 years. She has not still come out of mental agony, caused due to the death of her son Mr. 14 O.S.No.17613/2005 Roman Anthony Saldanha. The Defendant No.2 is aged about 36 years. She is unmarried and she is not worldly wise; and she is mentally handicapped. Defendant No.1 is some how maintaining herself and her daughter- Defendant No.2, out of her family pension. The Defendant No.3 is the first daughter of Defendant No.1, who is leaving away from her, in her matrimonial house at Kanakpura. Taking the undue advantage of the situation, it appears that the Plaintiff at the instance of bad elements is harassing the Defendants in one way or the other, without any basis or reasonable cause.
Further contends that, the Defendants have no objections to allot 1/4th share each in the Suit Schedule Property and the vacant Site situate at BTM Layout to the Plaintiff and the Defendant Nos.1 to 3, provided that the Plaintiff shall bring the vacant Site, situate at BTM Layout, into a common hotchpot, in this suit.
Hence, prayed to dismiss the suit of the Plaintiff with exemplary costs.
15O.S.No.17613/2005
5. On the basis of the above said pleadings, my learned predecessor in office, has framed the following Issues on 02.12.2010, as under:
ISSUES
1. Whether the Plaintiff proves that, the Suit Schedule Properties belong to her husband Late Roman Anthony Saldanha?
2. Whether the Plaintiff proves that, she is entitled for share in the Suit Schedule Property?
3. What order? What decree?
6. The Plaintiff inorder to prove her case got examined herself as PW.1 and got marked 19- documents as Ex.P1 to Ex.P19. PW.1 was cross examined on behalf of the Defendants on 12.02.2014, 06.03.2014 and 26.10.2015.
7. The Plaintiff thereafter filed a Memo on 23.02.2016, praying to dismiss the suit, as "Withdrawn".
16O.S.No.17613/2005 Thereafter, the Defendant No.1 filed an application at IA No.10/2016, to permit her to get transposed as Plaintiff No.2, inview of filing of Memo by the Plaintiff. The said application was allowed on 12.06.2017 and Defendant No.1 was transposed as Plaintiff No.2.
Thereafter, the transposed Plaintiff No.2 filed an application at IA No.4/2017 to implead the Defendant No.4 in this case. The said application was allowed on 21.10.2019 and Defendant No.4 was impleaded in this suit.
Inspite of affording sufficient opportunity, the Defendant No.4 failed to file her Written Statement. Hence, Written Statement of the Defendant No.4 was taken as 'Not Filed' on 28.11.2019.
The Defendant No.4 again filed an application at IA No.7/2019, seeking permission to file her Written Statement. The said application was allowed on 17.12.2019 and the Defendant No.4 was permitted to file her Written Statement, which was taken on record on 17.12.2019.
17O.S.No.17613/2005
8. The Defendant No.4 in her Written Statement contends that, Plaintiff No.1 is the absolute owner having right, title and interest of the Suit Schedule Property. As the said property was originally purchased by her husband Mr. Roman Anthony Saldanha, who passed away on 22.04.2005. He had purchased the Suit Schedule Property on 14.08.2001. He had got married to the Plaintiff No.1, but they had no issues. Since they had no issues, the husband of the Plaintiff Mr. Roman Anthony Saldanha executed a Will in her favour on 19.09.2004. Even in the service record, wherein the said Late Roman Anothy Saldanha, who was working as an Accountant in the Indian Airforce had entered the name of the Plaintiff No.1, as the beneficiary in his service record, as his legal heir. Any benefits or any emoluments from the Indian Airforce, will be devolved in the name of the Plaintiff No.1, as she is the only nominee, nominated by late Roman Anthony Saldanha, in his service records. Plaintiff No.1 has obtained housing loan withrespect to the Suit Schedule Property, from Citi Bank MG Road, Branch and the 18 O.S.No.17613/2005 constructions of the house and thereafter repayment of EMI was contributed by the Plaintiff No.1 alone. Khata pertaining to the Suit Schedule Property stood in the name of the Plaintiff No.1. Khata extracts, Tax paid receipts and the entire documents pertaining to the Suit Schedule Property stood in the name of Plaintiff No.1. With all the title documents in her name, she being the absolute owner of the Suit Schedule Property gifted the same, in her favour. And the Khata extracts, Tax paid receipts and EC stands in her name. Thus, she has become the absolute owner with right, title and interest over the Suit Schedule Property and since then, she is in possession of the Suit Schedule Property. The relief of Partition sought for by the Plaintiff No.2 is barred by limitation; non availability of the Suit Schedule Property for Partition; and more over the Defendants do not have any rights over the Suit Schedule Property, including the transposed Plaintiff No.2.
Further contends that, rightly, the Plaintiff No.1 had sought for withdrawal of the suit seeking for dismissal of the suit, when she was only the Plaintiff in 19 O.S.No.17613/2005 this suit. But this Court did not pass any orders and thereby allowed the transposition of Defendant No.1 as Plaintiff No.2 without disposing of the Memo for dismissal. The said order was challenged by the Plaintiff No.1 before the Hon'ble High Court of Karnataka in WP No.30148/2017, WP No.40755/2019, WP No.40756/2019, WP No.40762/2019 and WP No.40763/2019, which are pending for adjudication.
Further contends that, she has verified the title deeds in original pertaining to the Suit Schedule Property, which was released in her favour by the Plaintiff No.1 from the Citi Bank, Bengaluru and there by all the other Corporation documents with the EC, Khata and also Tax paid receipts and thereafter Gift Deed was executed in her favour by the Plaintiff No.1. Mutation was effected in her name in the records maintained by the Corporation.
Further contends that, she is neither the necessary party, nor the proper party for adjudication of this case and for deciding the merits of the case. The Defendants do not have any rights or claims, legally 20 O.S.No.17613/2005 withrespect to the Suit Schedule Property. The entire Scheduled property devolves from Late Roman Anthony Saldanha to the Plaintiff No.1. It has been wrongly initiated by filing the above suit for Partition, instead of a suit for Declaration.
A Preliminary Issue is required to raised withregard to maintainability of the suit, withrespect to the prayer for Partition of the Suit Schedule Property and there is complexity in the averments of the Suit Plaint which is not suitable for passing of Final Judgment for Partition and Separate Possession. Hence prayed to dismiss the suit.
9. The Plaintiff No.1 field an application at IA No.4/2019 to transposed herself as Defendant No.5. The said application came to rejected on 18.02.2020.
10. Learned Counsel representing the Transposed Plaintiff No.2 filed a memo on 13.01.2020, reporting the death of Transposed Plaintiff No.2; and 21 O.S.No.17613/2005 reporting that all the legal heirs of the Transposed Plaintiff No.2 are on record.
11. Defendant Nos.2 and 3 have filed application at IA No.1/2020 praying to permit them to file their subsequent pleadings. The same was allowed on 20.02.2021.
12. The Defendant Nos.2 and 3 filed an application at IA No.2/2020 praying to Transpose them as Plaintiff Nos. 3 and 4. The said application was Rejected on 20.02.2021.
13. The Plaintiff No.1 filed an application at IA No.1/2021 and 2/2021 praying to amend the Suit Plaint by incorporating pleadings in the form of Para No.6A and the relief of Declaration. The said application was allowed on 20.02.2021, with a condition that, the Proposed amendment will not relate back to the date of filing of this suit.
22O.S.No.17613/2005 In Para No.6A of the amendment Suit Plaint, the Plaintiff No.1 contends that, her husband R A Saldanha who is also an Airforce Personnel has executed a Will dtd.19.09.2004, in her favour, before the armed force authorities, which has been duly notarized for establishing the Will, in her favour. The said Will was produced in OS No.25405, for deciding the said case. In accordance to the said Will, the entire Suit Schedule Property has been bequeathed in her favour and she has become the absolute owner with right, title and interest and with possession of the Suit Schedule Property. The existence of the Will and also the execution of the Will; and coming into force of the Will, after the death of R A Saldanha, shall supersede seeking the relief of Partition, which has been inadvertently initiated earlier, shall not have any bearing and consequences, for which she had sought for withdrawal of the suit on 23.02.2016.
23O.S.No.17613/2005
14. The Defendant Nos.2 and 3 have filed their Addl. Written Statement on 06.03.2021 and 03.04.2021, contending that, the Plaintiff has filed a Memo for withdrawal of the suit, the same was Rejected by the Court. Subsequently, the Plaintiff had approached BBMP authorities for change of Khata in her name. She has submitted forged document with the concerned authority, including an affidavit stating that, her name is not Subhadra Anni, but her name is E. P Subhadra. The Anni is mentioned in the Khata, is the name which belongs to the Defendant No.1. On having the knowing the same, the Defendant No.1 has filed her objections before the Assistant Revenue Officer, BBMP Bengaluru, for which the said Officer has issued an endorsement on 11.04.2016 stating that, they will not change the name in the Khata of the Suit Schedule Property, due to pendency of this suit. Subsequently, Plaintiff has filed a Petition before the Addl. Commissioner, East BBMP, Bengaluru without considering and without issuing notices to the Respondent in case No.ADDL C (E)/PR/114A/25/2016- 24 O.S.No.17613/2005
17. The said Addl. Commissioner BBMP has passed an order on 13.04.2017 and the name of 'Anni' in the Khata of the Scheduled Property has been deleted and the Khata has been made, only in the name of the Plaintiff. The Defendant No.1 has challenged the said order by filing a Writ Petition in WP No.22484/2017, before the Hon'ble High Court of Karnataka. In the said proceedings, the orders passed by the Assistant Commissioner has been stayed. The Defendant No.1 has lodged a Complaint against the Plaintiff No.1 before Airport Police Station, for forging the documents. The said police have registered a FIR. The Plaintiff No.1 is making several attempts to forged the document with an intention to grab the Scheduled Property.
Further contends that, the allegations made by the Plaintiff No.1 in Para No.6A of the amended Suit Plaint are false, baseless and made with a malafide intention by producing forged Will dtd.19.09.2004. Late R A Saldanha has never executed any Will infavour of the Plaintiff No.1, as he was very much attached to his mother- Smt. Anni Saldanha. The Suit Schedule 25 O.S.No.17613/2005 Property has been purchased out of the funds of his father J F Saldanha to accommodate children of J F Saldanha. Husband of the Plaintiff No.1 was very much cordial with his mother and his sisters, as he had no intention either to knock of the property, or to transfer the said property in the name of his wife- the Plaintiff No.1.
Further contends that, Plaintiff No.1 had never produced the said Will dtd.19.09.2004, earlier before in any case. It is false for the plaintiff to contend that, she had produced the said Will in OS No.25405/2007, which was filed by Smt. Anni Saldanha and others; and also the Plaintiff has never whispered about the existence of the Will in the said suit. While filing the Written Statement in the said suit, she has stated that, her husband R A Saldanha has died Intestate.
Further contends that, Plaintiff No.1 has made a Gift Deed dtd.22.04.2017 infavour of the Defendant No.4, during the pendency of this case, for which subsequently Defendant No.4 has been impleaded in this case. The Plaintiff No.1 has even not whispered 26 O.S.No.17613/2005 about the Will in the said Gift Deed dtd.22.04.2017. As per the said alleged Gift Deed, it is seen that, the Defendant No.4, who is the sister of the Plaintiff No.1 and the Plaintiff No.1 in collusion with eachother have got created the said document, by under valuing. Hence the same is not maintainable.
Further contends that, the Plaintiff has filed several proceedings under the provisions of Sec.372 of Indian Succession Act, which came to be withdrawn. The said proceedings were filed by suppressing the earlier proceedings. In one of the proceedings, the Defendant No.1 has come on record, who is represented by an Advocate. On representation, the Plaintiff No.1 got filed a memo and withdrawn the said petition.
The Plaintiff No.1 has not produced the alleged Will in any other proceedings. She was not restrained by anybody to produce the said Will. The Plaintiff No.1 has not only delayed the suit in the ordinary contest, but delayed it for a period of 16 years, which is neither explained nor it is comprehensible. Plaintiff has not stated about her silence in production of the Will, in the 27 O.S.No.17613/2005 case which clearly goes to show that the Plaintiff has created the said Will. Hence the subsequent pleadings taken up by the Plaintiff are hopelessly barred by law of limitation.
Further contends that, Defendant Nos.2 and 3are in possession over the portion of the Suit Schedule Property; and without seeking a relief of possession in the present suit. The suit claiming the relief U/Sec.34(3) of Specific Relief Act is not at all maintainable. Plaintiff No.1 has not paid the Court fees, as per the nature of the relief, sought for by her.
Further since the Defendant Nos.2 and 3 are in possession of the portion of the Suit Schedule Property, the Plaintiff No.1 cannot delivered the possession of the Suit Schedule Property infavour of the Defendant No.4 under the alleged Gift Deed. Transaction under the alleged Gift Deed in an incomplete transaction.
Further contends that, the original relief claimed by the Plaintiff No.1 for Partition, acts contradictory to the subsequent relief claimed by her, for Declaration.
28O.S.No.17613/2005 Hence prayed to reject the amended claim of the Plaintiff No.1.
15. On the basis of the amended pleadings of the Plaintiff No.1 and the counter contentions taken up by the Defendant Nos.2 and 3, Addl. Issue Nos.1 to 3 have been framed as under:-
Additional Issues framed on 05.04.2021
1. Whether the Plaintiff No.1 proves that her husband Late R. A Saldanha has executed a Will dtd.19.09.2004, bequeathing the Suit Schedule Property in her name, as contended in Para No.6(a) of the Amended Suit Plaint?
2. Whether the Plaintiff No.1 is entitled for the relief of Declaration, as claimed in Prayer Para No.1(a) of the Suit Plaint?3. Whether the Defendant Nos.2 and 3
proves that the relief of Declaration sought for by the Plaintiff No.1 is barred by law of limitation as contended in Para No.10 of their Addl. Written Statement?
29O.S.No.17613/2005
16. Inorder to further prove the case, the Plaintiff No.1 got further examined as PW1 on 19.07.2021 and got marked 16- documents as ExP20 and Ex.P35. PW1 was further cross examined on behalf of the Defendant Nos.3 & 4 on 22.07.2021 and 22.09.2021. Ex.D1 to Ex.D7 were marked on confrontation to PW.1.
The Plaintiff got examined two witnesses on her behalf as PW2 and PW3 and got marked the signatures as Ex.P20(A) to Ex.P20(C), and Ex.P20(D), respectively. PW.2 was cross examined on behalf of Defendant Nos.2 and 3 on 19.08.2021; and PW.3 was cross examined on behalf of the Defendant Nos.2 and 3 on 01.09.2021. PW.3 was also cross examined on behalf of Defendant No.4.
Percontra, the Defendant Nos.2 and 3 got examined their Power of Attorney holder as DW.1 and got marked 28 documents, as ExD8 to ExD35. DW.1 was cross examined on behalf of the Plaintiff No.1 on 08.11.2021, 16.11.2021, 23.11.2021 and 04.12.2021. Ex.P36 and Ex.P37 were marked on confrontation to DW.1, on behalf of the Plaintiff No.1.
30O.S.No.17613/2005 The Defendant No.4 has got examined herself as DW.2 and got identified the Gift Deed as Ex.D7, and got marked 9-document as Ex.D36 to Ex.D44. DW.2 was cross examined on behalf of the Defendant Nos.2 and 3 on 10.01.2022 and 11.01.2022.
17. The suit was initially allotted to CCH-29 and the same was transferred to CCH-21 on 02.12.2010, as per the Notification No.ADM-I(A) 797/2010 dtd.26.11.2010. Thereafter, this suit came to be transferred to this Court on 18.06.2019 by virtue of Notification No.ADM-I(A)413/2018 dtd.31.07.2018, of the Principal City Civil and Sessions Judge, Bangalore.
18. Heard the Arguments of the Learned Counsels for the Plaintiff No.1; Defendant Nos.2 and 3; and Defendant No.4, respectively.
The Learned Counsel for the Plaintiff No.1 has filed Written Arguments on 17.02.2022; and has filed a Memo alongwith five decisions.
Percontra, the Learned Counsel for the Defendant Nos.2 and 3 has filed Memo alongwith 18 decisions.
31O.S.No.17613/2005 Learned Counsel for the Defendant No.4 has filed his Written Arguments.
I have carefully gone through the Written Arguments filed on behalf of the Plaintiff No.1 and Defendant No.4.
19. My findings on the above said issues are as under:
Issue No 1: In the Affirmative;
Issue No 2: Partly In the Affirmative;
Addl. Issue No.1: In the Negative;
Addl. Issue No.2: In the Negative;
Addl. Issue No.3: In the Affirmative;
Issue No 3: As per final order for
the following:
REASONS
20. ISSUE NO.1:-
The Plaintiff No.1 and Defendant No.4 contend that, the Suit Schedule Property is purchased by the husband of the Plaintiff No.1, by name Mr. Roman Anthony Saldanha, under the Registered Sale Deed dtd.14.08.2001.
32O.S.No.17613/2005 Percontra, the Defendant Nos. 2 and 3 alongwith Transposed Plaintiff No.2, who was Original Defendant No.1, contend that, Suit Schedule Property is purchased by them and Mr. Roman Anthony Saldanha, out of the death benefits received, in the event of death of J F Saldanha, in the name of Roman Anthony Saldanha. The entire consideration for purchase of the Suit Schedule Property, under the Registered Sale Deed dtd.14.08.2001, is paid out of the death claim benefits received in the event of death of J F Saldanha.
The Learned Counsel for the Defendant Nos.2 and 3 would contend that, even the said fact has been recited in the Sale Deed dtd.14.08.2001.
20.01. The Plaintiff has produced certified copy of the Sale Deed dtd.14.08.2001 at Ex.P17. The Defendant Nos.2 and 3 have produced the certified copy of the Sale Deed dtd.14.08.2001 at Ex.D9. Ex.P17 and Ex.D9 are one and the same.
33O.S.No.17613/2005 On careful perusal of Ex.P17 = Ex.D9, it is seen that, there is a recital at Page No.3, Clause-1, which reads as under:-
"In pursuance there of the purchaser has paid the before the witnesses to the vendor the full sale amount of Rs.8,75,000-00 (Rupees Eight Lakhs seventy Five thousand only) out of his father's amount, by pay order No.069039 dtd.13.08.2001, drawn on ICICI Bank, Bengaluru, in full and final settlement of the sale amount and the vendor hereby acknowledges the receipt of the same."
(underline is to lay emphasis) 20.02. The Learned Counsel for the Defendant Nos.2 and 3 would contend that, the consideration amount paid under the Sale Deed dtd.14.08.2001 - Ex.P17 = Ex.D9 has flown from the SB Account of the Original Defendant No.1/ Transposed Plaintiff No.2, which was credited to her account, as the death benefits of her husband - J F Saldanha.
34O.S.No.17613/2005 20.03. The Defendant Nos.2 and 3 have produced
a) the counter foils of the amounts remitted to theState Bank of Mysore on 09.07.2001, 07.06.2001 and 09.07.2001 at Ex.D24 to Ex.D26, respectively.
As per these documents, it is seen that, an amount of Rs.4,80,000/- with exchange commission of Rs.960/- has been remitted to the State Bank of Mysore on 09.07.2001 by the Original Defendant No.1/ Transposed Plaintiff No.2. Likewise, an amount of Rs.1,50,000/- with exchange commission of Rs.300/- has been remitted to the State Bank of Mysore on 07.06.2001 by the Original Defendant No.1/ Transposed Plaintiff No.2. As well as, an amount of Rs.5,00,000/- with exchange commission of Rs.1,000/- has been remitted to the State Bank of Mysore on 09.07.2001 by the Original Defendant No.1/ Transposed Plaintiff No.2.
b) Passbooks of the Original Defendant No.1/ Transposed Plaintiff No.2 held with State Bank of 35 O.S.No.17613/2005 Mysore, Masti Katte Branch, and State Bank of Mysore, HAL 2nd Stage Branch, at Ex.D10 and Ex.D11.
As per these documents, it is seen that the original Defendant No.1 Transposed Plaintiff No.2was holding an account bearing SB No.1979 with State Bank of Mysore, Masti Katte Branch, which was opened on 06.02.1995. And the said account was transferred to State Bank of Mysore, HAL 2 nd Stage Branch on 09.07.2001 with a credit balance of Rs.5,920-91 ps.,.
Further it is seen that, the Original Defendant No1/ Transposed Plaintiff No.2 was holding an account bearing SB No.172024 with the State Bank of Mysore, HAL 2nd Stage Branch, which was opened on 11.07.2001. On perusal of the entries in the said Passbook it is seen that, on July 15th an amount of Rs.2,00,000/- has been paid to R. A Saldanaha by way of Cheque bearing No.541; and on 19.04.2002, an amount of Rs.30,000/- was paid to R A Saldanah byway of Cheque bearing No.544.
36O.S.No.17613/2005
c) the current account extract of Mr. J. F Saldanha with the State Bank of Mysore, Masti Katte Branch, at Ex.D35.
As per this document, it is seen that, Mr. J F Saldanha was holding an SB Account bearing No. S-17, with the State Bank of Mysore Masti Katte Branch, wherein he was having a credit balance of Rs.8,71,946- 91 ps., as on 11.05.2001.
20.04. Coming to the ocular evidence, on this point, more specifically,
a) cross examination of PW.1, at Page No.11, Line Nos.5 to 12, which read as under:-
"... ನಮ್ಮ ಮಾವ ಮೇಲೆ ಹೇಳಿದ ಆಸ್ತಿಯನ್ನು ಅವರ ಕುಟುಂಬದ ಎಲ್ಲಾ ಸದಸ್ಯರ ಹಿತಾಸಕ್ತಿಗೋಸ್ಕರ ಅವರ ಸೇವಾವಧಿಯಲ್ಲಿ ನನ್ನೊಂದಿಗೆ ಮತ್ತು ಇತರೆ ಕುಟುಂಬದ ಸದಸ್ಯರೊಂದಿಗೆ ಚರ್ಚಿಸಿ ಖರೀದಿಸಿದ್ದಾರೆ ಅಂತ ಹೇಳಿದರೆ ಸರಿಯಲ್ಲ. ನಮ್ಮಾ ಮಾವ ಜೆ .ಎಫ್ ಸಲ್ಡಾನ ಅವರು ದಿಃ17.05.2001 ರಂದು ಮರಣ ಹೊಂದಿದ್ದಾರೆ. ಆ ಕಾಲಕ್ಕೆ ನನ್ನ ಗಂಡ ಆ್ಯಂಟನಿ ಸಲ್ಡಾಬ ಅವರು ಜೀವಂತವಾಗಿದ್ದರು. ನನ್ನ ಗಂಡ ನನ್ನ ಮಾವನ ಹೆಂಡತಿ ಮತ್ತು ಇತರೆ ಎಲ್ಲಾ ಮಕ್ಕಳ ಸಂಪೂರ್ಣ ಜವಾಬ್ದಾರಿಯನ್ನು ನಮ್ಮ ಮಾವ ತೀರಿಕೊಂಡ ಮೇಲೆ ತೆಗೆದುಕೊಂಡಿದ್ದರು ಅಂದರೆ ನಿಜ. ...."37
O.S.No.17613/2005 As per this evidence, a suggestion is made to PW.1 on behalf of Defendant Nos.2 and 3 that, Suit Schedule Property is purchased for the welfare of the family and children of Mr. J F Saldanha, which denied by the Plaintiff No.1/PW.1.
b) cross examination of PW.1, at Page No.12, Line Nos.19 to Page No.13, Line No.7, which read as under:-
"... ನನ್ನ ಗಂಡ ಮರಣ ಹೊಂದುವುದಕ್ಕಿಂತ ಮುಂದಚೆಯೇ ದಾವಾ ಆಸ್ತಿಯನ್ನು ಅವರು ಅವನ ಹೆಸರಿನಲ್ಲಿ ಖರೀದಿಸಿದ್ದರು ಅಂತ ಹೇಳಿದರೆ ನಿಜ. ದಾವಾ ಆಸ್ತಿಯನ್ನು ದಿಃ14.08.2001 ರಲ್ಲಿ ಖರೀದಿಸಿದ್ದಾರೆ. ಸದರಿ ಆಸ್ತಿಯನ್ನು ಖರೀದಿಸುವಾಗ ಮೃತ ನಮ್ಮ ಮಾವನ ಹಣಕಾಸಿನ ಎಲ್ಲಾ ಸೇವಾ ಸೌಲಭ್ಯದ ಹಣವು 1 ನೇ ಪ್ರತಿವಾದಿಗೆ ಬಿಡುಗಡೆಯಾಗಿತ್ತು ಅಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ. ದಾವಾ ಆಸ್ತಿಯನ್ನು ನನ್ನ ಗಂಡ ಖರೀದಿಸುವಾಗ ನಮ್ಮ ಮಾವನ ಸೇವಾ ಸೌಲಭ್ಯದ ಎಲ್ಲಾ ಹಣವನ್ನು ಉಪಯೋಗಿಸಿ ಖರೀದಿಸಲಾಗಿದೆ ಆ ಕಾಲಕ್ಕೆ ನನ್ನ ಗಂಡ ಸದರಿ ಆಸ್ತಿ ಖರೀದಿಗಾಗಿ ಯಾವುದೇ ಬ್ಯಾಂಕ್ ನಿಂದ ಸಾಲ ತೆಗೆದುಕೊಂಡಿಲ್ಲ ಅಂದರೆ ಸರಿಯಲ್ಲ. ...."
As per this evidence, PW.1 admits that, the Suit Schedule Property was purchased in the name of her husband, prior to his death. But pleads her ignorance that, the said property was purchased out of the death benefits received in the event of death of her father-in -
38O.S.No.17613/2005 law Mr. J F Saldanha. And further denies that, her husband has not contributed towards purchase of the Suit Schedule Property.
c) cross examination of PW.1, at Page No.29, Para No.1, which read as under:-
"I was personally present as on the date of registration of the Sale deed, dtd:
14.08.2001 - Ex.P.17. It is true to suggest that, Ex.P.17 was prepared at the instance of my husband R.A. Saldanha. The contents of Ex.P.17 at Page No.3, 2nd Para, which reads as "In pursuance ............ receipt of the same", are false. Witness volunteers that by mistake her husband has put the above contentions in Para No.2 at Page No.3 of Ex.P.17. I have not stood as a witness to Ex.P.17 and I have not affixed my signature as a witness to the said document. It is false to suggest that, I was not present at the time of registration of the Sale deed - Ex.P.17."
As per this evidence, PW.1 contends that, she was personally present on the date of registration of the Sale Deed dtd.14.08.2001- Ex.P17. And admits that, the said Sale Deed -Ex.P17 was prepared at the instance of her husband R A Saldanha, but denies that Ex.P17 contains a recital at Page No.3, second Para, withregard 39 O.S.No.17613/2005 to payment of consideration amount, out of his father's amount. She contends that, the said recital found at Para No.2, Page No.3 in Ex.P17 is by mistake. Further she contends that, she had not stood as a witnesses to Ex.P17- Sale Deed and denies the suggestion made to her that, she was not present on the day of registration of the Sale Deed dtd.14.08.2001 - Ex.P17.
d) cross examination of DW.1, at Page No.34, Para No.3, which read as under:-
"An amount of Rs. 16,26,768/-, as contended in Para No.5 of my Examination in chief - Affidavit, was deposited in the accounts of my maternal grandmother - Plaintiff No.2, with SBM, Masthikatti Branch as well as with SBM, HAL II Stage Branch. I cannot state the exact date as to when my grandmother had received the said amounts from LIC Pension Commutation and other benefits, after the death of my maternal grandfather."
As per this evidence, DW.1 contends that, an amount of Rs16,26,768/- was deposited in the account of his Maternal grandmother- Transposed Plaintiff No.2 with the State Bank of Mysore, Masthikatte Branch, as 40 O.S.No.17613/2005 well as with the State Bank of Mysore, HAL 2 nd Stage Branch, but he cannot state the exact date as to when his grandmother has received the said amount from LIC Pension Commutation and other benefits, after the death of his grandfather.
e) cross examination of DW.1, at Page No.36, Para No.1, which read as under:-
"It is true to suggest that, there is no entry in Ex.D.10 pass book with regard to credit of an amount of Rs.16,00,000/- on 09.07.2001."
As per this evidence, DW.1 admits that, there is no entry in Ex.D10- Passbook withregard to credit of an amount of Rs.16,00,000/- on 09.07.2001.
20.05. On perusal of the above oral and documentary evidence, more specifically, the recital found in the Sale Deed -Ex.P17 = Ex.D9, it can be concluded that,
a) though the Defendant Nos.2 and 3 contended that, the entire consideration for purchase of the Suit Schedule A property is paid out of the death benefits 41 O.S.No.17613/2005 received in the event of death of J F Saldanha, but they have failed to prove the said aspect, by cogent evidence;
b) As per the recitals in the Sale Deed dtd.14.08.2001 - Ex.P17 = Ex.D9, referred to supra, wherein it suggest that, the sale consideration amount is paid to the vendors under the said document, by the purchaser -the husband of the Plaintiff No.1, out of his father's amount.
The said recital is found in the said document, right from the day of purchase of the Suit Schedule Property. Neither the said recital has been challenged by the husband of the Plaintiff No.1, nor by any other person/s, during the lifetime of the husband of the Plaintiff No.1. Thus, the said recital, holds the probative value that, the consideration amount paid by the husband of the Plaintiff No.1, under the Sale Deed dtd.14.08.2001 - Ex.P17 = Ex.D9, to purchase the Suit Schedule Property, is out of his father's amount, which is paid byway of Pay Order bearing No.069039 dtd.13.08.2001.
42O.S.No.17613/2005 Further the contention of the Plaintiff No.1 that, the said recital is found due to mistake, cannot be accepted at all.
20.06. Further the Learned Counsel for the Plaintiff No.1 contends that, the Suit Schedule Property is purchased by the husband of Plaintiff No.1, on obtaining the loan from the Citi Bank.
Percontra, the Learned Counsel for the Defendant Nos.2 and 3 would contend that, loan obtained from the Citi Bank is subsequent to the purchase of the Suit Schedule Property under the Sale Deed dtd.14.08.2001
- Ex.P17 = Ex.D9.
Further the Defendant No.4 also contends that, Plaintiff No.1 and her husband has obtained loan for purchase of the Suit Schedule Property from the Citi Bank.
20.06.01. The Plaintiff No.1 has produced the Letters issued by the Citi Bank at Ex.P4 to Ex.P7, Ex.P22. Non of these documents speaks that, either the 43 O.S.No.17613/2005 Plaintiff No.1 or her husband has obtained the loan from Citi Bank to purchase the Suit Schedule Property.
20.06.02. Coming to the ocular evidence, on this point, more specifically,
a) cross-examination of PW1, at Page No.13, Line Nos.7 to 11, which reads as under:-
"...ದಿಃ13.08.2001 ರಂದು ನನ್ನ ಗಂಡ ಬೆಂಗಳುಾರಿನಲ್ಲಿನ ಎಂ.ಜಿ ರಸ್ತೆಯಲ್ಲಿರತಕ್ಕಂತಹ ಸಿಟಿ ಬ್ಯಾಂಕ್ ಶಾಖೆಯಿಂದ ಸಾಲವನ್ನು ದಾವಾ ಆಸ್ತಿಯ ಖರೀದಿಗಾಗಿ ತೆಗೆದುಕೊಂಡಿದ್ದಾರೆ ಅಂತ ನನಗೆ ಗೊತು. ನಾನು ಹೇಳಿದಂತೆ ನಾನಾಗಲೀ ನನ್ನ ಗಂಡನಾಗಲೀ 2001 ನೇ ಸಾಲಿನಲ್ಲಿ ಎಂ.ಜಿ ರಸ್ತೆಯ ಸಿಟಿ ಬ್ಯಾಂಕ್ ಶಾಖೆಯಿಂದ ಯಾವುದೇ ಸಾಲವನ್ನು ಪಡೆದುಕೊಂಡಿಲ್ಲ ...."
As per this evidence, PW.1 pleads her ignorance that, her husband has obtained loan from the Citi Bank situate on MG Road, Bengaluru for purchase of the Suit Schedule Property and contends that, neither she nor her husband have obtained loan from the Citi Bank in the year 2001.
44O.S.No.17613/2005
b) cross-examination of PW1, at Page No.29, Para No.1, which reads as under:-
"I have borrowed the loan for purchase of the Suit Schedule Property under Ex.P.17 - Sale deed. I do not remember the date of borrowing of the loan, from the Bank. It is true to suggest that, I have borrowed the loan from the CITI Bank, but not on 24.09.2001. Now, I see the letter issued by the Bank to me dated : 22.04.2002. On confrontation and admission, the said letter is marked as Ex.D.1. It is true to suggest that, as on the date of availing loan from the CITI Bank, Suit Schedule Property was already purchased under Ex.P.17 - Sale deed. It is true to suggest that, my husband has purchased the Suit Schedule Property consisting of an existing building."
As per this evidence, PW.1 contends that, she had borrowed the loan for purchase of the Suit Schedule Property under Ex.P17- Sale Deed, but do not remember the date of availing the said loan. Further admits that, she has borrowed the loan from Citi Bank, but on 24.09.2001. She admits the issuance of letter by the Citi Bank dtd.22.04.2002, which is marked as Ex.D1. Further admits that, as on the date of availing the loan 45 O.S.No.17613/2005 from the Citi Bank, Suit Schedule Property was already purchased under the Sale Deed -Ex.P17.
d) cross-examination of DW2, at Page No.14, Para No.2, which reads as under:-
"Plaintiff No.1 has obtained loan from City Bank, MG Road Branch to purchase Suit Schedule Property, but I can not state the date on which she has obtained the Loan. It is false to suggest that, Plaintiff No.1 has obtained the Loan from the City Bank, after purchase of the Property. It is false to suggest that, Plaintiff No.1 has obtained the loan from the City Bank to purchase the property at Goa."
As per this evidence, DW.2 contends that, Plaintiff No.1 has obtained loan from Citi Bank, MG Road Branch to purchase the Suit Schedule Property, but she cannot state the date on which the said loan was obtained by her.
20.06.03. Thus, on the basis of the above ocular and documentary evidence, more specifically, the admission given by PW.1 and the contents of Ex.D1 46 O.S.No.17613/2005 document, it can be said that, Plaintiff No.1 has obtained the loan from the Citi Bank,
a) after purchase of the Suit Schedule Property, under Ex.P17= Ex.D9 - Sale Deed;
b) Suit Schedule Property was offered as security, for availing the said loan facility.
Thus, it cannot be said that, Plaintiff No.1 and /or her husband has availed the loan from the Citi Bank, MG Road Branch for purchase of the Suit Schedule Property, under the Sale Deed dtd.14.08.2001 - Ex.P17 = Ex.D9.
20.07. Thus, it can be further concluded that, the Suit Schedule Property is purchased in the name of the husband of Plaintiff No.1, out of his father's amount, as per the recitals in the Sale Deed dtd.14.08.2001 - Ex.P17 = Ex.D9..
21. Further the Learned Counsel for the Defendant Nos.2 and 3 would contend that, since the husband of the Plaintiff No.1 was only the male member in his family, consisting of his mother- the Original 47 O.S.No.17613/2005 Defendant No.1/ Transposed Plaintiff No.2; and his sisters- Defendant Nos.2 and 3, so the Suit Schedule Property was purchased in his name. Therefore, the said property is a family property belonging to the family of the husband of the Plaintiff No.1 consisting of his mother- the Original Defendant No.1/ Transposed Plaintiff No.2; his sisters- Defendant Nos.2 and 3; and himself. And therefore would contend that, husband of the Plaintiff was not the absolute owner of the Suit Schedule Property as on the date of his death, but his mother and sisters were also the joint owners or tenants in common of the Suit Schedule Property, as on his death.
21.01. Admittedly, the parties to this suit, more specifically, the husband of the Plaintiff No.1-Roman Anthony Saldanha; the Original Defendant No.1/ Transposed Plaintiff No.2; and the Defendant Nos.2 and 3 are Roman Catholics i.e., Indian Christians. So the provisions of Indian Succession Act, will be applicable to them.
48O.S.No.17613/2005 21.02. When the Learned Counsel for Defendant Nos.2 and 3 contends that, since the Suit Schedule Property is purchased in the name of the husband of the Plaintiff No.1, out of the funds of his father, so the Suit Schedule Property amounts to the Joint Family property; and since the husband of the Plaintiff No.1 was only male member in his family, so he was the Kartha of his family.
21.03. The concepts of Joint Family; Kartha; and the Joint Family Property are unknown to the provisions of Indian Succession Act. So the concepts of Joint Family; Kartha; and Joint Family Property are not available to the members belonging to Christian Community.
22. As per the evidence on record, it is seen that, Suit Schedule Property is purchased after the death of J F Saldanha and prior to the death of the husband of the Plaintiff No.1 by name Mr. Roman Anthony Saldanha, in his name, as per the Sale Deed dtd.14.08.2001- Ex.P17 = Ex.D9. So as on the date of death of Roman Anthony 49 O.S.No.17613/2005 Saldanha, the Suit Schedule Property was standing in his name, as the owner thereof, by virtue of the said Sale Deed dtd.14.08.2001- Ex.P17 = Ex.D9. Thus, Roman Anthony Saldanha will become the owner of the Suit Schedule Property, though the said property is purchased by him, out of the funds of his father.
The Plaintiff No.1 has shown that, the Suit Schedule Property belongs to her husband Roman Anthony Saldanha.
Hence, I answer ISSUE NO.1 IN THE
AFFIRMATIVE.
23. ADDL. ISSUE NO.1:-
The Plaintiff No.1 contends that, her husband Roman Anthony Saldnaha has executed a Will dtd.19.09.2004, in her favour inrespect of the Suit Schedule Property and inrespect of another property, bequeathing the said properties, to her.
So also, the Defendant No.4 contends that, the husband of the Plaintiff No.1 Roman Anthony Saldanha 50 O.S.No.17613/2005 has executed a Will dtd.19.09.2004, in her favour bequeathing the Suit Schedule Property.
Percontra, the Defendant Nos.2 and 3 contends that, Plaintiff No.1 has got created Will dtd.19.09.2004, after the death of Original Defendant No.1/Transposed Plaintiff No.2. And thereby Suit Schedule Property will not flow to the Plaintiff No.1, by way of Testamentary Succession, but it will flow to them, by way of Intestate Succession.
24. The Plaintiff No.1 has produced the copy of the Will at Ex.P20.
25. The Learned Counsel for the Plaintiff No.1 would contend that,
a) allegations must be based on the consideration of cumulative effect of all the unusual features and suspicious circumstance put together and not on the basis of impact of a single feature or a single circumstances. He has placed his reliance of the Hon'ble Apex Court, in the case of A. Leela Rajapogal and Ors., V/s Kamala Menon Cocharan and Anr., 51 O.S.No.17613/2005 reported in (2014) 15 SCC 570, wherein it is observed in Para No.13, as under:-
"13. A Will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a Will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the Court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the Court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us."
b) Court must satisfy its conscious on having regard to totality of the circumstance of a particular case, while dealing with the Will. He has placed his reliance on the decision of the Hon'ble Apex Court, in 52 O.S.No.17613/2005 the case of B. Venkatamuni V/s C. J Ayodhya Ram Singh and Ors., reported in (2006) 13 SCC 449, wherein it is observed in Para Nos.15, 17, 18 and 20, as under:-
"15. It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made.
17. In H. Venkatachala Iyengar vs. B.N. Thimmajamma & Ors. [(1959) Supp.1 SCR 426, it was opined :
"However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the Testator, and so, when it is propounded or produced before a court, the Testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed Testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the Testator, that the Testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the 53 O.S.No.17613/2005 dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the Testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the Testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the Testator may not remove the doubt created by the appearance of the signature; the condition of the Testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the Testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the Testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the Testator. The presence of 54 O.S.No.17613/2005 such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the Testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the Testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
18. In Smt. Guro vs. Atma Singh & Ors.
[(1992) 2 SCR 30], this Court has opined :
"With regard to proof of a will, the law is well- settled that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the Testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court 55 O.S.No.17613/2005 before the will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leader part in the making of the will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last will of the Testator."
20. This Court in Daulat Ram & Ors. vs. Sodha & Ors. [(2005) 1 SCC 40], stated the law thus :
"Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the Attesting Witnesses at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the Testator and that he had put his signatures to 56 O.S.No.17613/2005 the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the Testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so."
c) Will is required to be proved as per Sec.68 of Evidence Act, by leading the evidence of the one of the Attesting Witnesses. In this case both the Attesting Witnesses have been examined by PW1. So the requirements of Sec.68 of Evidence Act, is fulfilled by the Plaintiff No.1, to prove the Will -Ex.P20. He has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of Mrs. Maya Akber V/s Mrs. Rani Menon, in RFA No.480 of 2020 57 O.S.No.17613/2005 D/d 16.08.2012, wherein it is observed in Para No.19 and held in Para No.32, as under:-
"19. The question therefore would be as to whether the WILL has been proved as required under Section 68 of the Evidence Act. Unlike in other documents, the person who has executed the documents would not be available. Therefore, one of the witnesses to the document is necessary to be examined to speak with regard to the fact of the Testator having signed in his/her presence and that all of them were simultaneously present. Such witness need not know the contents of the WILL but has to only testify with regard to the fact of the Testator having executed the WILL, in the presence of the witnesses and the Testator having taken active part. Hence, the observation of the Court below even on that aspect that the WILL cannot be believed as the witness has no knowledge of the contents is also erroneous.
32. The analysis and the view taken by me on the aspect relating to suspicious circumstance is also fortified by the law laid down by the Hon'ble Supreme Court while considering the aspect of suspicious circumstance, in the case of Smt. Indu Bala Bose and others -vs- Manindra Chandra Bose and another (AIR 1982 SC 133) and in the case of Ramabai Padmakar Patil (Dead) by Lrs & others -vs- Rukminibai Vishnu Vekhande and others (AIR 2003 SC 3109) relied on by the learned Senior Counsel for the 58 O.S.No.17613/2005 defendants. On the other hand, the learned Counsel for the plaintiff has relied on the decision of the Hon'ble Supreme Court in the case of Gorantla Thataiah -vs- Thotakura Venkata Subbaiah and others (AIR 1968 SC 1332) with specific reference to paragraph-6.
That was a case where the owner of the property had died issueless and the others were litigating with regard to the property and the Propounder had set up a WILL dated 17.06.1939 and the alleged Testator had died on 24.06.1939. As such the burden was heavy on the Propounder. The circumstance in the instant case has been discussed which is not akin and as such the decision would not be of assistance. Another decision relied on is in the case of Kalyan Singh -vs- Smt. Chhoti and other (1990 (1) SCC 266). That was a case where the wife was excluded and community interest was claimed in respect of the property and the WILL was brought forth after very many years. As such Propounder's case was not accepted. Hence, it does not make a difference to the above conclusion."
26. Percontra, the Learned Counsel for the Defendant Nos.2 and 3 would contend that, the Plaintiff No.1 has got created the Will, said to have been executed by her husband Roman Anthony Saldanha, that to after the death of Original Defendant No.1/ Transposed Plaintiff No.2, with an intention to defraud 59 O.S.No.17613/2005 the legitimate rights of the Defendant Nos.2 and 3 in the Suit Schedule Property.
Further he would contend that, the present suit was filed by the Plaintiff for the relief of Partition, subsequently after the death of the Original Defendant No.1/ Transposed Plaintiff No.2 got created the Will and got amended the Suit Plaint, seeking the relief of Declaration, to get her declared, as the absolute owner of the Suit Schedule Property. Inotherwords, he would contend that, initially there were no pleadings withregard to the existence of the Will, subsequently after the death of Original Defendant No.1/ Transposed Plaintiff No.2, pleadings were got incorporated, on getting amended the Suit Plaint.
27. The Plaintiff has produced the copy of the Original Will dtd.19.09.2004 at Ex.P20.
The Learned Counsel for the Plaintiff would contend that, the husband of the Plaintiff No.1 has executed the Will, infavour of the Plaintiff, inrespect of the Suit Schedule Property and another property situate 60 O.S.No.17613/2005 at BTM Layout, Bengaluru. And the said Will is attested by Attesting Witnesses and both the said witnesses have been examined by the Plaintiff as PW.2 and PW.3. Thus, the Plaintiff has proved the execution of the Will.
28. The Plaintiff No.1 is placing her reliance on the Will-Ex.P20. The Plaintiff No.1 claims to be the beneficiary under the said Will -Ex.P20.
Thus, onus to prove the Will-Ex.P20 lies on the Plaintiff No.1. I find force to the above view as per the decision of the Hon'ble Apex Court in the case of H. Venkatachala Iyengar V/s B.N. Thimmajamma and Others, reported in AIR 1959 SC 443, wherein it is held that, "Onus of proof to prove the Will is on propounder".
28.01. As per the decision of the Hon'ble High Court of Karnataka, in the case of Sharanana Basappa & Others V/s Shivakumar & Others, reported in ILR 2007 Kar. 5160, wherein it is is held that, 61 O.S.No.17613/2005 "Onus of proof is on propounder.
Duty of the propounder is to discharge discrepancies pointed out to take away the genuineness or validity of the Will. And the Will propounded should inspire the confidence of the Court."
28.02. As per the guiding principles laid down by the Hon'ble Apex Court, in the case of Niranjan Umesh Chandra Joshi vs Mrudula Jyothi Rao and others, reported in (2006) 13 SCC 433, wherein it is held that, "Will should be proved by primary evidence except where proof by leading secondary evidence, is permitted."
29. The said Will-ExP20 is to be proved by the Plaintiff No.1, who claims to be the beneficiary, under it. The Plaintiff No.1 has to satisfy five steps "Pancha Padi" as per the guiding principles laid down by the Hon'ble High Court of Karnataka; in the case of Sri. J.T.Surappa & Another V/s Sri. Satchidhanandendra Saraswathi Swamiji Public 62 O.S.No.17613/2005 Charitable Trust and Others, reported in ILR 2008 Kar. 2115, to prove the said Will, they are;
Pancha Padi
1) Whether the Will bears the signature or mark of the Testator and is duly attested by two witnesses and whether any Attesting Witnesses is examined to prove the Will.
30. As per the first step, the Plaintiff No.1 ha to show that,
a) the Will-Ex.P20 bears the signature or mark of Roman Anthony Saldanha- the Testator of the said Will;
b) Will-Ex.P20 is attested by two witnesses;
c) One of the attesting witness to the said Will has been examined.
In this particular case, on perusal of Ex.P20-Will, it can be seen that, it bears the signature of the Testator, as per the contentions of the Plaintiff No.1; and the Plaintiff No.1 has got marked the signature of the Testator as Ex.P20(B) and Ex.P20(C).
63O.S.No.17613/2005 Further, on perusal of Ex.P20-Will, two persons are shown to have acted as the Attesting Witnesses, to the said Will.
Further Plaintiff No.1 claims that DW.2-Santosh S/o Late Iqbal and PW.3- P. M Babu S/o Babu are the Attesting Witnesses to the said Will-Ex.P20, who have been examined, in this case on behalf of the Plaintiff No.1.
So the first requirement that, the Will-ExP20 bears the signature or mark of the Testator and the said Will is attested by two Attesting Witnesses and both of them are examined. It is satisfied.
31. The second step is to see that, Whether the natural heirs have been disinherited? If so, what is the reason?
In this case, admittedly, the Original Defendant No.1/ Transposed Plaintiff No.2-Anni Saldanha is the mother of Roman Anthony Saldanha; the Defendant Nos.2 and 3 are the sisters of said Roman Anthony Saldanha.
64O.S.No.17613/2005 The Plaintiff No.1 contends that, her husband Roman Anthony Saldanah has executed a Will on 19.09.2004. As on the said date, the Original Defendant No.1/ Transposed Plaintiff No.2 was alive. And she becomes the legal heir of Roman Anthony Saldanha, on his death.
But on careful perusal of the Will, the Original Defendant No1/ Transposed Plaintiff No.2 has not been shown as the beneficiary, alongwith the Plaintiff No.1. So, the mother of the Testator- Roman Anthony Saldanha, is disinherited, under the said Will-Ex.P20.
On close reading of the said Will-Ex.P20, no any explanation is forthcoming, or no any recital is found in it, explaining or affording reason, as to why, the mother of the Testator- Anni Saldanha has been disinherited.
Even the beneficiary under the said Will-Ex.P20, the Plaintiff No.1 has also not extended any explanation or has given any reason, as to why, her mother-in law Anni Saldanha, Original Defendant No.1/Transposed Plaintiff No.2, has been disinherited under the Will- Ex.P20.
65O.S.No.17613/2005 Thus, the Plaintiff No.1 has failed to show, or to give a valid, believable and satisfactory explanation or to satisfy as to why, her mother-in law Anni Saldanha was disinherited, under Ex.P20-Will, with concrete evidence.
So, the second step is not fulfilled by the Plaintiff No.1.
32. The third step deals with existence of any of the suspicious circumstances surrounding the Will- Ex.P20. If existed, then the said circumstances have to be explained and cleared by the Plaintiff No.1, to the satisfaction of law.
The Learned Counsel for the Defendant Nos.2 and 3 has placed sixteen suspicious circumstance, surrounding the Will-Ex.P20, viz., 32.01. The first suspicious circumstance canvased by the Learned Counsel for the Defendant Nos.2 and 3 that, the Plaintiff No.1 contend that, she was having the knowledge of the Will, since 2004, but has not stated the said fact in the Suit Plaint filed in 66 O.S.No.17613/2005 this suit, initially for the relief of Partition then subsequent got converted for the relief of Declaration.
32.01.01. Coming to the ocular evidence, on this point, more specifically,
a) cross-examination of PW.1, at Page No.30, Para No.5, which reads as under:-
"I came to know about the existence of the Will - Ex.P.20, in the year 2004. As on the date of filing of this suit, I was aware of the existence of the Will - Ex.P.20. Since there was no need to mention about the existence of the Will - Ex.P.20, in the Suit Plaint of this suit, so I have not mentioned the same, in it. It is false to suggest that though I was aware about the existence of the Will - Ex.P.20, I have filed the present suit for the relief of Partition."
As per this evidence, Plaintiff No.1 contends that, she was aware about the existence of the Will-Ex.P20 in the year 2004, but since there was no need to mention about the existence of the Will-Ex.P20, so she has not mentioned the same in the Suit Plaint, in this suit.
67O.S.No.17613/2005
b) cross-examination of PW.1, at Page No.35, Para No.1, which reads as under:-
"It is true to suggest that, I have deposed that, I was aware about the existence of Will - Ex.P.20, since 2004. It is true to suggest that, I have produced Will - Ex.P.20, in this case, only father (sic. further) death of my Mother-in-law Anni Saldanha - original Defendant No.1 and Proposed Defendant No.2. (sic. Transposed Plaintiff No.2) Ex.P.20 - Will was in my house inbetween 2004, till production of the said document, in this case. Witness volunteers that, she was searching the said Will, till she had produced the same."
As per this evidence, Plaintiff No.1/PW. 1 admits that, she has deposed that, she was aware about the existence of the Will-Ex.P20, since 2004; and she has produced the said Will-Ex.P20 in this case after the death of her mother - in law- Anni Saldanha- Original Defendant No.1/ Transposed Plaintiff No.2. And further contends that, Ex.P20-Will was in her house inbetween 2004 till the production of the said document, in this case. She further contends that, she was searching the said Will, till she had produced the same.
68O.S.No.17613/2005
c) cross-examination of PW.1, at Page No.35, Para No.2, which reads as under:-
"At the time of filing this suit for Partition, Ex.P.20 - Will was not with me, but I was aware about the said Will. It is true to suggest that, I have not pleaded about the Will - Ex.P.20, initially at the time of filing this suit for the relief of Partition."
As per this evidence, Plaintiff No.1/PW. 1 contends that, at the time of filing this suit for the relief of Partition, Ex.P20- Will was not with her. But she was aware about the said Will. She admits that, she has not pleaded about the Will-Ex.P20, initially at the time of filing this suit for the relief of Partition.
32.01.02. On careful perusal of the pleadings of the Plaintiff No.1 taken up in the Suit Plaint, prior to its amendment (amendment withregard to incorporation of Para No.6A). It can be seen that, the Plaintiff No.1 has never disclosed the existence of the Will-Ex.P20 in the Original Suit Plaint. On the contrary, she had filed this suit for the relief of Partition against the Defendant Nos.1 to 3, claiming her one half share, in the Suit 69 O.S.No.17613/2005 Schedule Property; and contending that, the another half share belongs to her mother-in law - Anni Saldanaha - Original Defendant No.1/ Transposed Plaintiff No.2.
So it can be said that, when the Plaintiff No.1 herself admits that she was aware about the existence of the Will-Ex.P20, she could have pleaded the same in the Original Suit Plaint.
Secondly, when the Plaintiff No.1 contends during the course of her cross-examination that, she was searching for the Will-Ex.P20, even under such circumstances, she could have pleaded the existence of the Will-Ex.P20.
Thirdly, the Plaintiff No.1 during her cross- examination, referred to supra, has contradicted her earlier contention. Inotherwords, Plaintiff No.1 in one breath contends that, she was having a Will-Ex.P20 in her house inbetween 2004 till production of the said document in this case; and in another breath she contends that, Will-Ex.P20 was not with her. Plaintiff No.1 cannot blow hot and cold, at once. Thus, the said 70 O.S.No.17613/2005 defence of the Plaintiff No.1, does not inspire the confidence of this Court, to hold that, she was restraint either from pleading the existence of the Will-Ex.P20 in the Original Suit Plaint, or from producing the said Will- Ex.P20, alongwith the Original Suit Plaint.
32.01.03. The Learned Counsel for the Defendant Nos.2 and 3 would contend that, when the Plaintiff No.1 was having the knowledge of existence of the Will- Ex.P20, then she could have got transferred the Khata pertaining to the Suit Schedule Property and another property situate at BTM Layout, which was the subject matter of the Will-Ex.P20.
The Plaintiff No.1 has produced the Letter dtd.21.09.2005 at Ex.P28. As per this document, it is seen that, the Plaintiff has filed an application with the Assistant Revenue Officer Jeevanbhima Nagar Ward, BBMP requesting to delete the name of her mother-in law Anni Saldanha from Khata Records pertaining to the Suit Schedule Property. Even at this point of time, the Plaintiff No.1 would have narrated the existence of 71 O.S.No.17613/2005 the Will-Ex.P20, because it was a crucial and relevant movement, to narrate the existence of the Will-Ex.P20; and to have got deleted the name of her mother - in law, on the basis of the said Will-Ex.P20. This was a relevant point of time, but even at this point of time, the Plaintiff No.1 has not narrated about the existence of the Will-Ex.P20.
32.01.04. Further the Learned Counsel for the Defendant Nos.2 and 3 would contend that, the Plaintiff No.1 had got issued a Notice to the Original Defendant No.1/ Transposed Plaintiff No.2 through her counsel on 16.10.2005, calling upon her not to spread false and scandalous things about her in the neighborhood; not to obstruct arrival of her friends and relatives to the Suit Schedule Property; and not to interfere with her possession over the Suit Schedule Property. Even in this notice, she could have contended about the existence of the Will-Ex.P20. But she has not contended so.
72O.S.No.17613/2005 The Defendant Nos.2 and 3 have produced the Office copy of the said Notice dtd.16.11.2005 at Ex.D16.
Firstly, this document is not denied by the Plaintiff No.1.
secondly, on careful perusal of this document, more specifically, in Para No.3, it is specifically contended on behalf of the Plaintiff No.1 that, the Suit Schedule Property belongs to her late husband and she is also having a share in it.
When it is contended from the side of the Plaintiff No.1 about the rights of the Plaintiff No.1, over the Suit Schedule Property, then it was encumbent upon the Plaintiff No.1, to have mentioned about the existence of the Will-Ex.P20, under the said Notice. But the same is not done.
32.01.05. Further the Learned Counsel for the Defendant Nos.2 and 3 would contend that, the Plaintiff had filed a suit at OS No.16426/2006 against the present Original Defendant No.1/Transposed Plaintiff No.2 and present Defendant No.2, for the relief of 73 O.S.No.17613/2005 Permanent Injunction, inrespect of the present Suit Schedule Property. Even in the said suit she has not contended about the existence of the Will-Ex.P20.
The Defendant Nos.2 and 3 have produced the certified copy of the Suit Plaint, Written Statement, Issues in OS No.16426/2006 at Ex.D29 to Ex.D31, respectively. On careful perusal of the Suit Plaint at Ex.D29, the present Plaintiff No.1 who was the Plaintiff therein, has not pleaded about the existence of the Will- Ex.P20, though she has pleaded about filing of the present suit, in the Suit Plaint. The Plaintiff No.1 could have pleaded about the existence of the Will-Ex.P20. But she has not done, so.
32.01.06. The Learned Counsel for the Defendant Nos.2 and 3 would contend that, the Plaintiff had filed a Complaint under the provisions of Protection of Women from Domestic Violence Act, 2005 at Crl. Misc. No.56/2013 on 25.04.2013 even in the said Complaint she has not pleaded about the existence of the Will- Ex.P20.
74O.S.No.17613/2005 The Defendant Nos.2 and 3 have produced the certified copy of the Complaint filed by the Aggrieved Person- Plaintiff No.1 and the evidence of the Aggrieved Person- Plaintiff No.1 in Crl.Misc. No.56/2013, on the file of the MMTC-1 Bengaluru at Ex.D32 and Ex.D33. On careful perusal of the said Complaint, as well as the evidence of the present Plaintiff No.1, in that proceedings, it can be said that, the present Plaintiff No.1 has not narrated about the existence of the Will- Ex.P20, in the said proceedings.
32.01.07. The Learned Counsel for the Defendant Nos.2 and 3 would contend that, the Plaintiff No.1 has got created a document styled as Gift Deed dtd.22.04.2017, said to have been executed by her, infavour of her sister - Kumari Pallian - the present Defendant No.4. Even in the said document the Plaintiff No.1 has not contended about the existence of the Will- Ex.P20.
The Gift Deed dtd.22.04.2017 said to have been executed by the Plaintiff No.1 infavour of her sister -
75O.S.No.17613/2005 Kumari Pallian is got marked on confrontation to her, as Ex.D7. On careful perusal of the contents of the said document, though the Plaintiff No.1 contends that, her husband has purchased the said property and she ha succeeded the said property from her husband, but has not mentioned about the existence of the Will-Ex.P20, in the said document, which she could have mentioned.
32.01.08. The Plaintiff No.1 has not shown the sufficient cause or the reason for not mentioning or narrating about the existence of the Will-Ex.P20 in the above referred documents, at relevant points of time, which can be gauged at Ex.P28 = Ex.P13; Ex.D16; Ex.D29; Ex.D32, Ex.D33 and Ex.D7. Even no satisfactory explanation is coming forth from the side of the Plaintiff No.1, in this behalf.
32.02. The second suspicious circumstance contended by the Learned Counsel for the Defendant Nos.2 and 3 is that, the Plaintiff herself has stated in the proceedings that her husband died Intestate. Even in the Gift Deed -Ex.D7 she has mentioned that her 76 O.S.No.17613/2005 husband has died Intestate. Further he has thrown light on the proceedings filed by the Plaintiff No.1 under the provisions of Indian Succession Act, which are marked at Ex.D3, Ex.D5 and the relevant portions are marked at Ex.D3(A), Ex.D5(A), respectively; and Gift Deed -Ex.D7, relevant portion marked at Ex.D7(A).
32.02.01. Coming to the ocular evidence, on this point, in relation in Ex.D3, Ex.D5, ExD6 and Ex.D7, more specifically,
a) cross-examination of PW.1, at Page No.36, Para No.2 which reads as under:-
"It is true to suggest that, I had filed a petition for grant of succession certificate at P & SC. No. 25007/2018, on the file of Addl. City Civil & Sessions Judge, [CCH-21]. It is true to suggest that, I have contended in para No.3 of the Petition in P & SC. No. 25007/2018 that, "my husband has died intestate on 22.04.2005". On confrontation and admission, the certified copy of Petition filed by the witness in P & SC. No. 25007/2018 is marked as Ex.D.3 and relevant portion of Para No.3 in Ex.D.3 is marked as Ex.D3(A). Witness volunteers that, by mistake, it has been typed in Ex.D.3 as her husband has died intestate, for the said 77 O.S.No.17613/2005 reason she has got withdrawn the said Petition. I have not filed any application for amendment of the Petition P & SC. No. 25007/2018 to get rectify the said mistake. Now, I see the certified copy of the memo filed on my behalf for withdrawal of the Petition filed at P & SC. No. 25007/2018. On confrontation and admission, the said memo is marked as Ex.D.4. I do not know whether it is mentioned in the memo that, the said P & Sc, is withdrawn, since a mistake has been crept in Para No.3 of the Petition, with regard to a contention that, my husband has died intestate."
b) cross-examination of PW.1 at Page No.37, Para No.2, which reads as under:-
"It is true to suggest that, I have filed another Petition under the provisions of Probate and Succession Act, at P & Sc. No. 119/2018 for grant of Succession Certificate. Certified copy of Petition in P & Sc. No. 119/2018 is shown to the witness. Witness admits the same. On confrontation and admission, the Petition filed in P & Sc. No. 119/2018 is marked as Ex.D.5. It is true to suggest that, in Para No.4 of the said Petition, I have contended that, my husband has died intestate on 22.04.2005. Relevant portion of Para No.4 on confrontation and admission is marked as Ex.D.5(A). I have withdrawn the Petition 78 O.S.No.17613/2005 filed at P & Sc. No. 119/2018. It is false to suggest that, I have not got withdrawn the Petition filed at P & Sc. No. 119/2018, but it was rejected by the Court as Not Maintainable on 04.04.2018. It is false to suggest that, Petition bearing P & Sc. No. 25007/2018 and Petition bearing P & Sc. No. 119/2018, was filed by one and the same Advocate."
c) cross-examination of PW.1, at Page No.38, Para No.1 which reads as under:-
"It is true to suggest that, I have filed one more Petition at P & Sc. No. 337/2018. Now, the Certified copy of the Petition filed in P & Sc. No. 337/2018 is shown to the witness. Witness answers in the Affirmative, for filing the said Petition. On confrontation and admission the said Petition is marked as Ex.D.6. It is false to suggest that, I have withdrawn the Petition bearing P & Sc. No. 337/2018, since the original Defendant No.1 in this suit, has appeared through her counsel, in the said Petition."79
O.S.No.17613/2005
d) cross-examination of PW.1 at Page No.38, Para No.3, which reads as under:-
"Now, Certified copy of the Gift Deed dated : 22.04.2017 is shown to the witness and questioned whether have you executed the Registered Gift Deed in favour of Kumari Pallian. Witness answered in the Affirmative. On confrontation and admission the said Gift Deed is marked as Ex.D.7. It is true to suggest that, I have not mentioned about existence of Will - Ex.P.20, in the Gift Deed - Ex.D.7. It is true to suggest that, in Ex.D.7 at Page No.3, Para No.1, there is a recital which says, "Whereas the said R.A. Saldanha, died intestate on 22.04.2005, leaving behind his wife i.e., the Donor herein as his legal heir".
On confrontation and admission the said recital is marked as Ex.D. 7(A). Witness volunteers that, there is a typographical mistake in mentioning the same in Ex.D.7 (A). I have not got the said typographical mistake rectified by way of any Rectification Deed to Ex.D.7."
32.02.03. As per the above ocular and documentary evidence, it is seen that, the Plaintiff No.1 has mentioned that, her husband has died Intestate, in the proceeding taken up by her, under Ex.D3, Ex.D5 and ExD6 as per Ex.D3(A), ExD5(A), respectively. So 80 O.S.No.17613/2005 also, the Plaintiff No.1 has mentioned that, her husband has died Intestate in the Gift Deed -Ex.D7, relevant portion marked at Ex.D7(A).
32.03. The third suspicious circumstance contended by the Learned Counsel for the Defendant Nos 2 & 3 is that, the Plaintiff No 1 contends that her husband has executed the Will-ExP20 before the Armed Force Authorities, which can be seen as per the Pleadings in the Suit Plaint at Para No 6(A), which reads as under:
"6a.The Plaintiff submits that, her husband late R A Saldanha who is also an Air Force Personnel has executed a Will dated 19/09/2004 in her favour before the Armed Force Authority and ...".
32.03.01.Coming to the ocular evidence on this point, more specifically, cross examination of PW1 at Page No 40, Para No 2, which reads as under:
"I have not produced any document to show that, my husband R.A. Saldanha had executed a Will before Armed force Authority as contended in Para No.6 (a) of the Suit Plaint.' 81 O.S.No.17613/2005 As per this evidence Plaintiff No 1/PW1 contends that she has not produced any document to show that her husband R A Saldanha had executed the Will before the Armed Force Authority, as contended in Para No 6(a) of the Suit Plaint.
32.03.02. On careful perusal of the Will-ExP20, it doesnot indicate that the said Will is executed before the Armed Force Authority. Neither there is any seal of any Armed Force Authority, nor any endorsement of any Armed Force Authority, nor any Registration Number allotted by the said Armed Force Authority to the said Will.
32.03.03. If the said Will was executed before any Armed Force Authority, then the existence of the said Will would have been found mentioned in the Army Records of deceased Roman Anthony Saldanha. But no such records or material is produced by the Plaintiff No 1, to this effect.82
O.S.No.17613/2005 32.03.04. If the Will was executed before the Armed Force Authority, then it would have been considered as a 'Privileged Will', within the meaning of the provisions of the Indian Succession Act. But the Plaintiff No 1 has neither contended/pleaded so, nor has produced any such material to that effect.
32.03.05. Thus Plaintiff No 1 has failed to show that her husband has executed the Will-ExP20 before the Armed Force Authority, as contended by her in Para No 6a of the Suit Plaint.
32.04. The fourth suspicious circumstance contended by the Learned Counsel for the Defendant Nos 2 & 3 is that, the Plaintiff No 1 contends that she had produced the Will in OS No 25405 for deciding the case, which can be seen as per the Pleadings in the Suit Plaint at Para No 6(A), which reads as under:
"6a. ... The said Will was produced in OS No 25405, for deciding the said case. ...".83
O.S.No.17613/2005 The Plaintiff has produce the certified copy of the Suit Plaint and the Written Statement filed in OS No 25405/2007, at ExP15 & ExP16. As per the Written Statement filed by the present Plaintiff No 1, who was the Defendant in that suit, it is seen that neither the execution of the Will-ExP20 is pleaded nor the said Will is produced in the said suit.
No materials have been placed by the Plaintiff No 1 on record to show that she has produced the Will-ExP20 in the said suit-OS No 25405/2007, either alongwith her Written Statement or subsequent to it.
32.04.01. Coming to the ocular evidence on this point, more specifically,
a) examination in chief of PW1 at page No 22, Para No 11, which reads as under:
"I submit that the existence of the will was aware to me, but I had not obtained the copy nor I was notable to see the original Will. The original will obtained only recently while clearing the trunks belonging to my husband late Sri. Roman Antony Saldanha and hence I am producing the said will without any delay.84
O.S.No.17613/2005 There is no any delay in the production of the Will."
As per this evidence Plaintiff No 1/PW1 contends that, she was aware of the Will, but she had not seen the Original Will and she found the Will, while she was clearing the trunks belonging to her husband.
b) examination in chief of PW1 at Page No 3, Para No 10, Line Nos 17 to 24, which reads as under:
"... The Plaintiff omitted to bring the said property in the ambit of the present suit as the same is her absolute property having got the rights by virtue of a Will dtd.19.19.2004 executed by her ate husband bequeathing the Scheduled property in the name of the Plaintiff. ..."
As per this evidence Plaintiff No 1/PW1 contends that, she has omitted to bring the property situate at BTM Layout, Bengaluru in this suit, as the same is her absolute Property, having got the rights under the Will dated 19.09.2004.
85O.S.No.17613/2005
c) cross examination of PW1 at Page No 30, Para No 5, which reads as under:
"I came to know about the existence of the Will - Ex.P.20, in the year 2004. As on the date of filing of this suit, I was aware of the existence of the Will - Ex.P.20. Since there was no need to mention about the existence of the Will - Ex.P.20, in the Suit Plaint of this suit, so I have not mentioned the same, in it. It is false to suggest that though I was aware about the existence of the Will - Ex.P.20, I have filed the present suit for the relief of Partition."
As per this evidence Plaintiff No 1/PW1 contends that, she came to know about the existence of the Will- ExP20 in the year 2004 and she was aware about the said Will, as on the date of filing this suit. Since there was no need to mention about the existence of the said Will, so she has not mentioned it in the Suit Plaint.
32.04.02. Thus as per the above ocular evidence, coupled with the contention takenup by the Plaintiff No 1 in Para No 6a of the Suit Plaint; and in continuation of my discussion made in this regard, while discussing the first suspicious circumstances, it can be said that the Plaintiff, in one breath contends 86 O.S.No.17613/2005 that she was aware about the existence of the Will- ExP20 in the year 2004 as well as while filing the present suit; in the second breath she contends that, since there was no necessity, so she did not plead about the Will in this suit; in the third breath she contends that, she was aware about the Will, but she had not seen the Original Will; in the fourth breath she contends that, she found the Will in the trunks belonging to her husband, while cleaning them; in the fifth breath she contends that, she has produced the said Will in OS No 25405/2007, so the property shown under the said Suit, as the Suit Schedule property (Property situate at BTM layout, Bengaluru) is not brought in this suit, as one of the Suit Schedule Property.
Five different and distinct versions are comingforth from the side of the Plaintiff No 1, in this regard, which leads to non believing the version of the Plaintiff No 1.
87O.S.No.17613/2005 32.05. The fifth suspicious circumstances contended by the Learned Counsel for the Defendant Nos 2 & 3 is that, the Will is dated 19.09.2004; and it is contended that the said Will is executed before the Armed Force Authority, but if the date is seen, it falls on Sunday; and it is a General Holiday.
32.05.01. On verification of the date of Will which is shown as 19.09.2004, it falls on Sunday. Sunday will be General Holiday. Unless some special grounds are made, the Armed Force Authority will not get executed the Will, on Sundays.
So it is one of the suspicious circumstances.
32.06. The sixth suspicious circumstances contended by the Learned Counsel for the Defendant Nos 2 & 3 is that, the Plaintiff No 1 contends that her husband has executed the Will-ExP20 before the Armed Force Authorities and the same is duly Notarized, which can be seen as per the Pleadings in the Suit Plaint at Para No 6(A), which reads as under:
88O.S.No.17613/2005 "6a.The Plaintiff submits that, her husband late R A Saldanha who is also an Air Force Personnel has executed a Will dated 19/09/2004 in her favour before the Armed Force Authority and which has been duly notarized for establishing the Will in her favour. ...".
32.06.01. On careful perusal of the Will-
ExP20, it is seen that the said Will is Notarized with the Notary Public and Advocate by name M G Uttappa, at Bangalore; and not before any Armed Force Authority.
32.06.02. The Learned Counsel for the Defendant Nos 2 & 3 would contend that though the Will is Notarized, but it doesnot contain the Notarial Registration Number. And further contends that when the act of Notarisation is denied by the Defendant Nos 2 & 3, it was for the Plaintiff No 1 to prove the act of Notarization, by leading the direct evidence, like adducing the evidence of Notary; and by getting produced the Notarial Register. But the same is not done.
89O.S.No.17613/2005 On perusal of the Ocular evidence of PW1, the Defendant Nos 2 & 3 have denied the act of Notarisation. Under such circumstances, it was the duty of the Plaintiff No 1 to prove the said fact of Notarisation, by leading the evidence of the Notary Advocate and by getting produced the Notary Register of the said Notary.
32.06.03. Further the Learned Counsel for the Defendant Nos 2 & 3 would contend that, as on 19.09.2004 deceased Roman Anthony Saldanha was working at Amla. When he was working at Amla, why the Will is got executed at Bangalore, Notarised at Bangalore.
32.06.04. Coming to the ocular evidence on this point, more specifically,
a) cross examination of PW1 at Page No 31, Para No 6, which reads as under:
"At the time of preparing Ex.P.20 - Will, my husband was working at Amla, Madhya Pradesh State, as an Accountant 90 O.S.No.17613/2005 in the Indian Air Force. He had come for three months on pre- release course."
As per this evidence Plaintiff No 1/PW1 contends that, at the time of preparing ExP20-Will her husband was working at Amla, Madhya Pradesh State, as an Accountant in the Indian Air Force. He had come to Bangalore for three months, on pre-release Course.
b) cross examination of PW1 at Page No 40, Para No 1, Line Nos 5 to11, which reads as under:
"... My husband was transferred to Amla in November 2003. It is false to suggest that, on transfer of my husband to Amla, he did not visit Bengaluru, till his retirement. My husband had come for three months pre - release course in July 2004 to Bengaluru. He was there for three months in Bengaluru till October 2004. Thereafter, he returned back to Amla".
As per this evidence Plaintiff No 1/PW1 contends that, her husband was transferred to Amla in November 2003. He had come for three months pre-release course in July 2004 to Bengaluru; he was there for three month, upto October 2004, and thereafter he returned back to Amla.
91O.S.No.17613/2005 32.06.05. As per the above ocular evidence, it remains an admitted fact that, the husband of the Plaintiff No 1 was working at Amla, from November 2003. Thereafter he had come for pre-release Course to Bengaluru from July 2004 to October 2004. And as per the Plaintiff No 1, Will-ExP20 is executed on 19.09.2004.
Though Plaintiff No 1 contends that her husband had come for pre-release Course to Bangalore inbetween July 2004 to October 2004, but she has not placed any material on record to show that her husband has attended pre-release Course during that period.
32.06.06. Thus Plaintiff No 1 has failed to explain as to why her husband has executed Will-ExP20 at Bangaluru, when he was working at Amla; as to why the said Will was Notarised at Bengaluru, when he was working at Amla; and to show that her husband has attended pre-release Course at Bangaluru inbetween July 2004 to October 2004.
Further after execution of the Will-ExP20 by the husband of the Plaintiff No 1 on 19.09.2004 at 92 O.S.No.17613/2005 Bengaluru, while he was on service, then he was bound to report the same to his Authorities, about execution of the Will and would have got it entered in his Service Records. But no such documents are forthcoming from the side of the Plaintiff No 1.
Thus this also form a suspicious circumstances.
32.07. The seventh suspicious circumstances contended by the Learned Counsel for the Defendant Nos 2 & 3 is that, the Property situate at BTM Layout , Bengaluru is also the subject matter of the Will-ExP20, but the said property is purchased on 01.04.2005, after the alleged execution of the Will dated 19.09.2004- ExP20.
32.07.01. On perusal of the Will-ExP20, it is seen that the Property situate at BTM Layout is shown as the Property No II.
37.07.02. Coming to the ocular evidence on this point, more specifically, 93 O.S.No.17613/2005
a) cross examination of PW1 at Page No 35, Para No 3, which reads as under:
"It is true to suggest that, in Will - Ex.P.20 property situated at BTM Layout is mentioned as Property No.2. It is true to suggest that, my husband has purchased BTM Layout property on 01.04.2005. Now, a certified copy of the Sale Deed dated :
28.06.2006 is shown to the witness and questioned that, the said Sale Deed pertains to the purchase of the property situated at BTM Layout. Witness admits the said document. On admission and confrontation, the said document is marked as Ex.D.2. Since there was no need to mention in Ex.D.2 that, I have received the said property from my husband under Ex.P.20 - Will, so the same is not mentioned in Ex.D.2 - Sale Deed".
As per this evidence Plaintiff No 1/PW1 admits that Property situate at BTM Layout is shown as Property No 2 and her husband had purchased the said property on 01.04.2005; ExD2-Sale-deed dated 28.06.2006 (confronted document) pertains to the said property; and she has received the said property from her husband.
94O.S.No.17613/2005 On careful perusal of the Sale-deed dated 28.06.2006-ExD2, it is seen that the Plaintiff No 1 has convened the said property to Sri Abdul Malik S/O:
Abdul Basith for the valuable consideration of Rs 13,20,000/-. Further at Page No 2 of the said document, there is a recital that, the said property was originally allotted in the name of Late Roman Anthony Saldanha- the husband of the Vendor (Plaintiff No 1/PW1) by the BDA, as per the Possession Certificate bearing PCR No 106/2004-05 dated 31.03.2005 and thereafter, he had obtained Absolute Sale-deed dated 01.04.2005.
It is clear from this document that the Property situate at BTM Layout, Bengaluru is an allotted property to Roman Anthony Saldanha by the BDA.
b) cross examination of DW1 at Page No 43, Para No 4, which reads as under:
"I am aware that, Mr. R.A. Saldanha was having another property at BTM Layout. I do not know, as to when the said property was allotted to Mr. R.A. Saldanha. It is true to suggest that, property situated at BTM Layout 95 O.S.No.17613/2005 is allotted to R.A. Saldanha in the year 2000 and the Sale Deed is executed in his favour in the year 2005, as per Ex.D.12."
As per this evidence DW1 contends that R A Saldanha was having another property at BTM Layout, but he pleads his ignorance as to when the said property was allotted to him. And further contends that the said property is allotted to R A Saldanha in the year 2000 and Sale-deed is executed in his favour in the year 2005, as per ExD12.
37.07.03. The Defendant has produced the Certified copy of the Sale-deed dated 31.03.2005 at ExD12. The Plaintiff No 1 has produced the Certified copy of the Sale-deed dated 31.03.2005 at ExP18. (ExP18=ExD12).
On careful perusal of the said document it is seen that, there is a recital in the said document that the said property was allotted to Roman Anthony Saldanha on 21.02.2000, as per the Allotment Letter No. ಬೆಂಅಪ್ರಾ/ಆಡಳಿತ/ಉಕಾ-2/ಬಿಟಿಎಂ/4/2/1329/ಓ/1999-2000, ದಿನಾಂಕ 21.02.2000.
96O.S.No.17613/2005 37.07.04. So the Property situate at BTM Layout is allotted to Roman Anthony Saldanha on 21.02.2000, as per the Allotment Letter; Possession was given on 31.03.2005, as per the Possession Certificate; and Sale-deed was executed on 01.04.2005, as per the Sale-deed-ExP18=ExD12.
37.07.05. Thus the contention of the Learned Counsel for the Defendant Nos 2 & 3 that the Property No 2, situate at BTM Layout, Bengaluru in Will-ExP20 is acquired subsequent to the Will-ExP20, doesnot for a suspicious circumstances.
37.08. The Eighth suspicious circumstances contended by the Learned Counsel for the Defendant Nos 2 & 3 is that, the Will-ExP20 has not been acted over. He would contend that, the Khata pertaining to the Suit Schedule Property was standing jointly in the name of the Plaintiff No 1 and the Original Defendant No 1/Transposed Plaintiff No 2.
97O.S.No.17613/2005 37.08.01. Coming to the pleadings of the Plaintiff No 1 in the Suit Plaint, more specifically, Para No 3, Line Nos 12 to 14, which reads as under:
".... The katha of the schedule property was changed jointly in the name of the plaintiff and the first defendant after the death of the plaintiff's husband".
So, as per the said pleadings, the Plaintiff No 1 admits that after the death of her husband, katha pertaining the Suit Schedule Property was changed jointly in her name and in the name of the Original Defendant No 1/Transposed Plaintiff No 2.
37.08.02. Coming to the ocular evidence on this point, more specifically, cross examination of PW1 at Page No 8, Line Nos 13 & 14, which reads as under:
"...ದಾವಾ ಸ್ವತ್ತು ನನ್ನ ಮತ್ತು 1 ನೇ ಪ್ರತಿವಾದಿಯ ಹೆಸರಿನಲ್ಲಿ ಖಾತಾ ಇದೆ ಎನ್ನುವುದು ಸರಿ ....".
As per this evidence Plaintiff No 1/PW1 admits that the katha pertaining to the Suit Schedule Property stands in her name and in the name of the Defendant No 1.
98O.S.No.17613/2005 37.08.03. Coming to the documentary evidence on this point, more specifically,
a) Katha Certificate and Tax paid receipt produced by the Plaintiff No 1 at ExP2 & ExP1, respectively. It is seen that, the names of Plaintiff No 1 and the Original Defendant No 1/Transposed Plaintiff No 2 are shown as the katedars of the Suit Schedule Property.
b) Extract from the Property Register produced by the Plaintiff No 1 at ExP3. It is seen that, the names of Plaintiff No 1 and the Original Defendant No 1/Transposed Plaintiff No 2 are shown as the katedars of the Suit Schedule Property, on deleting the name of R A Saldanha.
c) Copy of the Notice issued by the Plaintiff No 1 to the Asst Revenue Officer dated 21.09.2005, received under RTI, produced by the Defendant Nos 2 & 3 at ExD13. On perusal of the said document, it is seen that the Plaintiff No 1 has requested the said office to delete the name of her mother-in-law Anni Saldanha, shown as the Joint Kathedar alongwith her, in the Suit 99 O.S.No.17613/2005 Schedule Property, as the same was done by her brother-in-law without her knowledge and consent, by cheating and playing fraud upon her. But in the said request, she has not contended about execution of the Will-ExP20 by her husband in her favour.
37.08.04. Thus, on the basis of the ocular and documentary evidence, it is clear that on the death of Roman Anthony Saldanha, the names of the Plaintiff No 1 and the Original Defendant No 1/Transposed Plaintiff No 2, were jointly entered in the records of the Suit Schedule Property, as kathedars.
This also form a suspicious circumstance.
37.09. The Ninth suspicious circumstance contended by the Learned Counsel for the Defendant Nos 2 & 3 is that, the Plaintiff has not claimed her alleged rights on the basis of the Will-ExP20, initially; and there is a long delay in claiming such alleged rights, which will lead to Suspicious circumstances.
He has placed his reliance on two decisions, viz., 100 O.S.No.17613/2005
a) of the Hon'ble High Court of Karnataka, in the case of Smt. Lagamavva and Ors, V/s Gangawwa and Ors, reported in AIR 2017 (3) Kar. L. J 682, wherein it is observed in Para Nos.7 and 9, as under:-
" 7. The main issue was relating to proving of the Will dated 31-3-1954 said to have been executed by Prabhu in favour of defendant 2. At this juncture, it is apt to refer to the judgment of this Court in the case of J.
T. Surappa and Another V/s Sri Satchidhanandendra Saraswathi Swamiji Public Trust and Others, wherein five steps required to be considered while proving the Will is laid down. The five steps are, under the Indian Succession Act, 1925 ('Act' for short), the Will to be valid, should be reduced into writing, signed by the testator and besides attested by two or more witnesses and at least one attesting witness shall be examined. If these legal requirements are not found in the eye of law, there is no Will at all.
Hence first of is that if the documents produced before the Court prima facie do not satisfy this legal requirement, the Court need not make any further enquiry insofar as its due execution is concerned and can negative the claim based on the said document. The second step is that when legal representatives are disinherited, Court has to scrutinise the evidence with greater degree of care than 101 O.S.No.17613/2005 usual. The third step would be to find out whether the testator was in sound state of mind at the time of executing the Will. The fourth step would be to find out whether there exists any suspicious circumstances surrounding the execution of the Will. The fifth step is to consider whether the Will that is executed in accordance with Section 63 of the Act read with Section 68 of the Indian Evidence Act, 1872.
9. Though the Will was dated 31-3- 1954, it has not seen the light of the day until 1990 i.e., when the name of the defendant 2 was entered in the Panchayat records for the first time, based on the alleged Will-Ex.D. 4. The contents of the alleged Will is that the property should be enjoyed by his wife Yellawwa and thereafter, it should go to the hands of the defendant I Admittedly, Yellawwa died in the year 1968. The Will was not acted upon for more than 22 years. The long gap of 22 years would create suspicion regarding the execution of the Will. No plausible cause was shown by defendant 2 for not acting upon the Will for more than 22 years. It establishes the suspicious circumstances surrounding the Will. In these circumstances, both the Courts held that defendant 2 has failed to prove the Will in accordance with Section 63 of the Act and Section 68 of the Evidence Act d with attestation and even execution of the Will is not proved in accordance with law."
102O.S.No.17613/2005
b) of the Hon'ble High Court of Madhya Pradesh, in the case of Jhallu Mann Singh Rathore V/s Mani Ram Mangal Singh and Ors, reported in AIR 2021 (NOC) 477 (MP) SC 3102, wherein it is observed in Para No.10, as under:-
"10. After perusing the statement of Pheren Singh (PW-2), it appears that Mohan Singh called him and conveyed that he has executed a Will in favour of the appellant, therefore, he should sign it thereafter he signed on the Will and went away to his house. He has not stated that in his presence Mohan Singh signed on the Wll or put his thumb impression on the Will nor in his presence will was prepared. Will was prepared earlier in point of time. He only signed on it. He also stated that before signing the Will one Kanchhedi and other persons already signed it. In para 11, he further stated that he does not know whether Mohan Singh was capable to append his signatures or he used to affix his thumb impression on any document, therefore, learned lower appellate Court has rightly held in Para 20 that Pheren Singh cannot be treated as attesting witness of the Will. There is no illegality or perversity in the finding of the appellate Court that the appellant has failed to prove that Will was duly executed in his favour in view of the provision of Section 68 of the Indian Evidence Act and Section 63 103 O.S.No.17613/2005 of the Indian Succession Act. Learned appellate :5: SA No. 1022/1996 Court has also considered that as pleaded by the appellant Will Ex. P-2 was executed in his favour on 16.8.1969. His father died 15-16 years ago but he has failed to claim any right over the suit property from 1969 to 1987-88 on the basis of Will."
37.09.01. Initially, this suit was filed by the Plaintiff for the relief of Partition, then subsequently on getting amended the Suit Plaintiff, on getting incorporated Para No 6a to the Suit Plaint, the Plaintiff has claimed the relief of Declaration based on Will- ExP20.
On perusal of the records, it is seen that the relevant amendments have been sought for under a) IA Nos 1/2021, which was allowed on 20.02.2021, with a condition that the said Amendment will not relate back to the date of filing of the suit; and b) IA No 2/2021, which was allowed on 30.03.2021.
37.09.02. Further the Learned Counsel for the Defendant Nos 2 & 3 would contend that the amendment allowed subject to the plea of limitation and 104 O.S.No.17613/2005 with a condition that the said amended portion doesnot relate back to the date of the Suit, will not come in the way of the Suspicious circumstance made out by the Defendant Nos 2 & 3.
37.09.02.01. As per the decision of the Hon'ble Apex Court in the case of Vishwambhar Vs Laxminarayan, reported in (2001)6 SCC 163, wherein it is held that, "If as a result of allowing the amendment, the basis of the suit is changed, such amendment even though allowed, cannot relate back to the date of filing the suit to cure the defect of limitation."
Applying the said preposition of law to the instant case at hand, it can be said that the contention takenup by the Plaintiff No 1 on getting amended her Suit Plaint, withregard to the claiming of her rights under Will- ExP20, cannot fill up the lacuna, of a) long delay; and b) failure to claim the relief over the Will, at the time of filing the suit.
105O.S.No.17613/2005 37.09.03. So the Will-ExP20 setup by the Plaintiff No 1 is dated 19.09.2004 and the rights alleged to have been created under the said Will are claimed in 2021, i.e., there is gap of about 16 ½ years. It is a considerable delay.
And even it speaks about the the instance of failure on the part of the Plaintiff No 1, to claim the relief over the rights alleged to have been got created under the Will-ExP20.
Thus, this will form a suspicious circumstance.
37.10. The Tenth suspicious circumstance contended by the Learned Counsel for the Defendant Nos 2 & 3 is that, as per the recitals of Para No 2 of the Will-ExP20, R A Saldanha was not the Testator of the Will-EP20, but it is E A Saldanha; and the word use in para No 3 of the Will as 'her', refers to a female and not a male.
37.10.01. On perusal of the Will-ExP20, it is seen that in Para No 2, it is typewritten as E A 106 O.S.No.17613/2005 Saldanha. So also in Para No 3, there is mention of the word, 'her'.
Secondly, the Defendant Nos 2 & 3 have not shown that there is a person in their family by name E A Saldanha, who is also the son of J F Saldanha.
Thirdly, in Para Nos 1 & 3 of the Will-ExP20, the name is shown as R A Saldanha.
Fourthly, both the parties to the suit i.e., Plaintiff No 1 on one hand and the Original Defendant No 1/Transposed Plaintiff No 2, the Defendant Nos 2 & 3 on the otherhand, have admitted that Mr J F Saldanha was having only one son by name R A Saldanha.
37.10.02. No doubt the Plaintiff No 1 has not given any explanation in this regard, but that aspect itself will not amount to contend that the Testator of the Will-ExP20 is not R A Saldanha, but it is E A Saldanha.
37.10.03. We have to consider the document ExP20-Will, in its entirety, by taking into circumstances and the situation prevailing in the family of the parties, i.e., the Testator; the Beneficiaries; and the persons who 107 O.S.No.17613/2005 have been disinherited, as held by the Hon'ble Apex Court,
a) in the case of Leela Rajagopal & Others Vs Kamala Menon Cocharan & Others, reported in (2014) 15 SCC 570, wherein it is held in Para No 13 that, "13. A Will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a Will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the Court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the Court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us."
108O.S.No.17613/2005
b) in the case of B. Venkatamuni V/s C. J Ayodhya Ram Singh and Ors., reported in (2006) 13 SCC 449, wherein it is held that, " The Court must satisfy its conscious on having regard to totality of the circumstance of a particular case, while dealing with the Will."
37.10.04. Thus this contention of the Learned Counsel for the Defendant Nos 2 & 3 will not lead to a suspicious circumstances.
37.11. The Eleventh suspicious circumstance contended by the Learned Counsel for the Defendant Nos 2 & 3 is that, names of both the witnesses are not shown in the Will-ExP20. And he would contend that the said witnesses are planted by creating the said Will- ExP20 37.11.01. On perusal of the Will-ExP20, it is seen that, the names of both the Witnesses, shown in the said Will, have not been mentioned, there is mention about their parentage and their address.
109O.S.No.17613/2005 37.11.02. The Plaintiff No 1 has led the evidence of both the Witnesses to the said Will-ExP20, as PW2 and PW3.
On careful perusal of the their evidence, the Defendant Nos 2 & 3 have denied their residence at the address shown in the Will-ExP20. Under such circumstances, it was for the Plaintiff No 1 to produce their identity proof, showing their residence, as shown in the Will-ExP20. But the Plaintiff No 1 has failed to prove the said fact.
It also becomes a suspicious circumstance.
37.12. The Twelfth suspicious circumstance contended by the Learned Counsel for the Defendant Nos 2 & 3 is that, single page with different spacing is used under ExP20-Will. Further he would contend that such aspect will form a suspicious circumstances. And he has placed his reliance on the decision of the of the Hon'ble Apex Court, in the case of Shivajumar & Ors, V/s Sharanabasappa and Ors, reported in AIR 110 O.S.No.17613/2005 2020 SC 3102, wherein it is observed in Para No.15.5, as under:-
"15.5. The discussion thus far makes it clear that at least four unusual features of the document in question are evident on the face of the record. To recapitulate, the disturbing unusual features of the document in question are that: (i) it is typewritten on 3 different sheets of paper; (ii) the placement of signatures of the Testator is not of uniformity and excessive space is seen between the typewritten contents and the signatures on page number 1 and page number 5; (iii) different pens have been used for signatures on different pages with ink pen having been used for first and third signatures (on page number 1 and page number 5) and ballpoint pen having been used for the second signature (on page number 3); and (iv) all the typewritten pages do not carry the signatures of the Testator, with there being no signature on page number 2 and page number 4. It does not require any great deal of elaboration that in the ordinary, normal and usual course, such a typewritten document is expected to be on the sheets of paper drawn from the same stack; there would be reasonable uniformity in placement of the signatures running through the document and every signature would be placed alongside or at a reasonable distance from the contents; a single pen or instrument would be used for signing at all places; and, ordinarily, a maker of the Will 111 O.S.No.17613/2005 would not leave such ambiguity in expression of his intention as would arise by his signing 3 pages and not signing 2 other pages of the same document. In fact, in the normal and ordinary course of dealing, the maker of a Will is least expected to leave any page of the document unsigned. Although existence of some such unusual features (as noticed above) cannot be ruled out during the course of typing and signing of the document but when all such unusual features combine together, the document becomes too vulnerable and cannot be readily accepted as a genuine document."
37.12.01. On careful perusal of the Will- ExP20, it is seen that, there are disturbing unusual features in the said document like,
(i) it is typewritten on a single sheet of paper;
(ii) the placement of signatures of the Testator is not of uniformity and reasonable space is not maintained inbetween the typewritten contents and the signature of the Testator;
(iii) the placement of the signature of the Testator;
(iv) the placement of the signatures of the witnesses and the pattern of showing the addresses of the witnesses, without their names;
112O.S.No.17613/2005
(v) the unusual placing of space, inbetween the paragraphs; specific portions like, description of the Testator; description of the Witnesses; and description of the Properties.
(vi) Space left for signatures of the Notary and its seal.
(vii) affixture of the Signature of the Testator (ExP20(c)) at the end of the document.
(viii) different pens have been used for signatures by the Testator and the Witnesses.
37.12.02. It is true that, it does not require any great deal of elaboration that, in the ordinary, normal and usual course, such a typewritten document is expected to be on the sheets of paper drawn from the same stack; but there should be reasonable uniformity in the placement of the signatures running through the document and every signature would be placed alongside or at a reasonable distance from the contents; a single pen or instrument would be used for signing at all places; and, ordinarily, a maker of the Will would not 113 O.S.No.17613/2005 leave such ambiguity in expression of his intention as would arise by his signing.
In fact, in the normal and ordinary course of dealing, the maker of a Will is least expected to see that the document, more particular when it is Will, that it should be written on sufficient papers; it should contain reasonable uniformity in placement of the signature of the Testator; the Attesting Witnesses; the Notarial Officer with seal; the spacing, etc. Although existence of some such unusual features (as noticed above) cannot be ruled out during the course of typing and signing of the document, but when all such unusual features combine together, the document becomes too vulnerable and creates a room for suspicious circumstances, which will lead to doubt its genuineness.
Thus this also forms a suspicious circumstance.
37.13. The Thirteenth suspicious circumstance contended by the Learned Counsel for the Defendant Nos 2 & 3 is that, PW1 is not known to the Witnesses.
114O.S.No.17613/2005 37.13.01. On careful perusal of the evidence led by the Plaintiff No 1, of the Witnesses to the Will-ExP20, as PW2 and PW3, they contend that they were knowing Roman Anthony Saldanha and not PW1, but they had met PW1, once.
37.13.02. It is not necessary for a person to get himself qualified as an Attesting witness, to know the beneficiary, but they should satisfy the conditions as required U/Sec 63 of the Indian Succession Act, which will be dealt later.
It will not form suspicious circumstances.
37.14. The Fourteenth suspicious circumstance contended by the Learned Counsel for the Defendant Nos 2 & 3 is that,the so called Attesting Witnesses are not aware about the contents of the Will-ExP20.
37.14.01. On careful perusal of the evidence led by the Plaintiff No 1, of the Witnesses to the Will-ExP20, 115 O.S.No.17613/2005 as PW2 and PW3, they contend that they are not aware about the contents of the Will-ExP20.
37.14.02. It is not necessary for a person to get himself qualified as an Attesting witness, to know the contents of the Will, accurately, but they should satisfy the conditions as required U/Sec 63 of the Indian Succession Act, which will be dealt later.
It will not form suspicious circumstances.
37.15. The Fifteenth suspicious circumstance contended by the Learned Counsel for the Defendant Nos 2 & 3 that, the signature shown to be of Roman Anthony Saldanha in ExP20, are not his signatures. Further he would contend that, there is much variance in the signature of the Roman Anthony Saldanha found in the Sale-deed dated 31.03.2005-ExP18=ExD12 and the one found in ExP20-Will, which are marked as ExP20(B) and ExP20(C).
116O.S.No.17613/2005 37.15.01.The said aspect will be dealt with, while discussing Step No 5, latter.
And it is necessary to conclude about execution of the Will-ExP20 by Roman Anthony Saldanha, on taking into consideration the cumulative effect and circumstances, placed by the parties, surrounding the Will.
37.16. The Sixteenth suspicious circumstance contended by the Learned Counsel for the Defendant Nos 2 & 3 that, the signatures shown to be of the Witnesses in ExP20, are not their signatures. Further he would contend that, there is much variance in the signature of the Witnesses led by the Plaintiff No 1, as PW2 & PW3 and the one found in ExP20-Will, which are marked as ExP20(A) and ExP20(B).
37.16.01. The said aspect will be dealt with, while discussing Step No 5, latter.
And it is necessary to conclude about proof of execution of the Will-ExP20 by Roman Anthony Saldanha, on taking into consideration the cumulative 117 O.S.No.17613/2005 effect and circumstances, placed by the parties, surrounding the Will.
37.17. Most of the suspicious circumstances have not been answered by the Plaintiff No 1.
37.18. Thus most of the suspicious circumstance placed on behalf of the Defendant Nos 2 & 3 leads to form grave suspicious circumstances surrounding the Will-ExP20, pertaining to the valid custody of the Will; Placement of the Will; existence of the Will; contents of the Will; condition of the Will; and Execution of the Will, which have remained unexplained from the side of the Plaintiff No 1.
38. The fourth step withregard to proving of existence of sound and disposing state of mind of Roman Anthony Saldanha, at the time of execution of the said Will-Ex.P.20.
38.01. Neither the Defendant Nos 2 & 3 have contended that Roman Anthony Saldanha was not having sound state of mind, during the period 2001 till 118 O.S.No.17613/2005 his death, nor they have made out any special grounds or circumstances leading to suspicious circumstances, with cogent evidence, either documentary or oral.
38.02. On the basis of the materials on record, it can be gathered that Mr Roman Anthony Saldanha was working at Amla inbetween 2001 till his retirement and from the period inbetween his retirement till his death, neither there were any episodes of any mental illness, nor any instances.
38.03. Without any cogent evidence leading to the mental state of mind of Roman Anthony Saldanha, it can be said that, no suspicious circumstances is made out by the Defendant Nos 2 & 3, with regard the Roman Anthony Saldanha, not having a sound and disposing state of mind.
39. The fifth step leading to compliance of Sec. 63 of Indian Succession Act, leading to attestation and Sec. 68 of the Indian Evidence Act.
119O.S.No.17613/2005 39.01. Section 68 of Indian Evidence Act, which reads as under;
"68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
(Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied)".
39.02. Section 63 of Indian Succession Act, which reads as under;
"63. Execution of unprivileged Wills.- Every Testator, not being a soldier employed an expedition or engaged in actual warfare, (or an airman so employed or engaged,) or mariner at sea, shall execute his Will according to the following rules:-120
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(a) The Testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the Testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the Testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the Testator, or has received from the Testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the Testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
39.03. One of the rule laid down U/Sec. 63 of Indian Succession Act is ;
"The Testator shall sign or affixed his mark to the Will and/ or it shall be signed by some other person, in his presence and at his direction"121
O.S.No.17613/2005 39.04. The Plaintiff No 1 contend that, PW2 and PW3 are the Attesting witnesses to Ex.P.20-Will. And on careful perusal of their evidence, they contend that, Roman Anthony Saldanha has signed the said document in their presence and they have affixed their signatures to the said document, in the presence of Roman Anthony Saldanha.
39.05. But when the Defendant Nos 2 & 3 denied the residential address of the PW2 & PW3; and their signatures on the ExP20-Will, then it was for the Plaintiff No 1 to bring some cogent and believable evidence on record, to substantially defend the said contention of the Defendant Nos 2 & 3, which the Plaintiff No 1 has failed.
39.06. Under such circumstances, Attestation as required U/Sec. 3 of the Transfer of Property Act, as well as, as per Sec 63 of the Indian Succession Act is not proved by the Plaintiff No 1.
122O.S.No.17613/2005 39.07. As per the decision of the Hon'ble Apex Court in the case of Apoline D'souza V/s John D'souza, reported in (2007) 7 SCC 225, wherein it is held that, "Proof of attestation of Will is a mandatory requirement. Suspicious circumstances have to be removed by the propounder of the Will. Due execution of Will have not been proved".
39.08. The Plaintiff No 1 has failed to prove due attestation of the Will, as it is one of the mandatory requirements, as well as the Plaintiff No 1 has failed to remove the suspicious circumstances, surrounding the Will- ExP20, stated above.
39.09. Thus, it can be said that Will -Ex.P.20 is full of suspicious circumstances, which the Plaintiff No 1 has failed to remove them.
39.10. Under such circumstances, the Will- ExP20 placed on record, by the Plaintiff No 1, does not inspire the confidence of this Court. Hence, this Court declines to accept the Will-Ex.P.20. Thus the Plaintiff No 123 O.S.No.17613/2005 1 has failed to prove the Will-ExP20, its existence, contents, condition, execution and attestation, as per law.
39.11. Thus the Plaintiff No 1 has failed to prove that, her husband late Roman Anthony Saldanha has executed a Will dated 19.09.2004-ExP20, bequeathing the Suit Schedule Property in her name, as contended in Para No 6a of the Amended Suit Plaint.
Thus, I am constrained to answer ADDL ISSUE NO.1 IN THE NEGATIVE.
40. ADDL ISSUE NO.3:
The Defendant Nos 2 & 3 contends that, the relief of Declaration claimed by the Plaintiff No 1 is barred by law of limitation.
The Learned Counsel for the Defendant Nos 2 & 3 would contend that,
a) the relief of declaration cannot be relate back to the date of filing the suit to cure the defect of limitation.124
O.S.No.17613/2005 He has placed his reliance on the decision of the Hon'ble Apex Court, in the case of L. C Hanumanthappa (Since Dead) represented by his Lrs V/s H. B Shivakumar, reported in AIR 2015 SC 3364, wherein it is observed in Para No.27 and held in Para No.29, as under:-
"27. In Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) v. Ramesh Chander and Ors., (2010) 14 SCC 596, this Court considered a suit which was originally filed for declaration of ownership of land and for permanent injunction. The suit had been filed on 11th February, 1991. An amendment application was moved under Order VI Rule 17 of the Code of Civil Procedure on 16th December, 2002 for inclusion of the relief of specific performance of contract. This Court in no uncertain terms refused the midstream change made in the suit, and held:- "In the present case, the factual situation is totally different and the appellants have not filed any suit for specific performance against the first respondent within the period of limitation.
In this context, the provision of Article 54 of the Limitation Act is very relevant. The period of limitation prescribed in Article 54 for filing a suit for specific performance is three years from the date fixed for the performance, or if 125 O.S.No.17613/2005 no such date is fixed, when the plaintiff has notice that performance is refused.
Here admittedly, no date has been fixed for performance in the agreement for sale entered between the parties in 1976. But definitely by its notice dated 3-2-1991, the first respondent has clearly made its intentions clear about refusing the performance of the agreement and cancelled the agreement.
Even though the prayer for amendment to include the relief of specific performance was made about 11 years after the filing of the suit, and the same was allowed after 12 years of the filing of the suit, such an amendment in the facts of the case cannot relate back to the date of filing of the original plaint, in view of the clear bar under Article 54 of the Limitation Act. Here in this case, the inclusion of the plea of specific performance by way of amendment virtually alters the character of the suit, and its pecuniary jurisdiction had gone up and the plaint had to be transferred to a different court. This Court held in Vishwambhar v. Laxminarayan [(2001) 6 SCC 163] , if as a result of allowing the amendment, the basis of the suit is changed, such amendment even though allowed, cannot relate back to the date of filing the suit to cure the defect of limitation (SCC at pp. 168-69, para 9). Those principles are applicable to the present case." [at paras 24, 25 and 32] 126 O.S.No.17613/2005
29. Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16th May, 1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff's title to the suit property. A reading of an isolated para in the written statement, namely, para 2 by the trial court on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff's title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28th March, 2002 had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. There can be no doubt that on an application of Khatri Hotels Private Limited (supra), the right to sue for declaration of title first arose on the facts of the present case on 16th May, 1990 when the original written statement clearly denied the plaintiff's title. By 16th May, 1993 therefore a suit based on declaration of title would have become time- barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant 127 O.S.No.17613/2005 the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. This being so, we find no infirmity in the impugned judgment of the High Court. The present appeal is accordingly dismissed."
b) It is the bounden duty of the Court to see the question of limitation. He has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of Siddalingaiah since dead by LRs V/s H. K. Kariappa, reported in 2008 (5) KCCR 3546, wherein it is observed in Para No.21, as under:-
"21. In the instant case, the suit itself was filed almost after 40 years from the date of the adoption deed and, therefore, the suit of the plaintiff is hopelessly barred by limitation. No doubt, the trial Court did not go into this aspect of the matter. But, it is clear from Section 3 of the Limitation Act that every suit instituted, appeal preferred, and an application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. In other words, it was the bounden duty of the Court to have taken note of the aforesaid mandatory provision of Section 3 of the Limitation Act and the suit of the plaintiff ought to have been 128 O.S.No.17613/2005 dismissed on that score alone. As far as the said question of law being raised in second appeal is concerned, it is well settled that there can be no bar to raise the plea of limitation even at the stage of second appeal. The first substantial question of law is, therefore, answered in the affirmative."
c) The relief of Declaration sough for by the Plaintiff No 1, attracts Art 58 of Limitation Act, which says relief of declaration is to be claimed within a period of 3 years from the date of knowledge. He has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of Hulugappa and Ors., V/s Dundappa and Anr., reported in 2021 (1) KCCR 178, wherein it is observed in Para Nos.10 and 11, as under:-
"10. The case of plaintiffs is that the plaintiffs are the owners of the suit schedule properties. The said properties were originally owned by one Hanumappa who is the original propositus and plaintiff No.1 is the grandson and plaintiffs No.2 to 4 are the sons of the said Hanumappa. After the death of Hanumappa, plaintiffs have succeeded to the suit lands and they are in possession of the suit lands. The plaintiffs have filed the suit for declaration of ownership, but in fact plaintiffs have not produced any records to show that 129 O.S.No.17613/2005 suit property was owned and possessed by original propositur namely Hanumappa and further revenue records produced go to show that - 11 - the property is in the name of defendants No.1 and 2. Further plaintiffs have not produced any records to show that plaintiffs are in possession of the suit property. The plaintiffs have not produced any title deeds to show that the plaintiffs are the owners of suit properties. As per the provisions of Section 34 of Specific Performance Act, 1963 suit for mere declaration without seeking consequential relief of possession, the suit is not maintainable. Therefore, the trial Court rightly held that the plaintiffs have failed to prove that they are the owners of suit properties and further failed to prove that the plaintiffs are in possession of the suit properties.
11. The defendants have taken specific contention that the suit filed by the plaintiffs is barred by limitation. In the cross- examination of PW-1, he has clearly admitted that about 13 years back itself, the plaintiffs have got the knowledge - 12 - about the entries in the defendants name in the RTC relating to the suit properties. PW-1 has not attempted to challenge the entries standing in the name of defendants. The admission of plaintiffs clearly goes to show that the plaintiffs had knowledge about entries made in the name of defendants about 13 years back. The plaintiff ought to have filed the suit 130 O.S.No.17613/2005 within three years from the date of knowledge but in fact the plaintiffs have filed the suit after 13 years from the date of knowledge and the suit filed by the plaintiffs is barred by limitation as per the Article 58 of Limitation Act. The appellate Court after re- appreciating the pleadings, oral and documentary evidence on record has held that the plaintiffs have failed to prove the ownership as well as the possession and thereby affirmed the findings of the trial Court that suit filed by the plaintiffs is barred by limitation."
40.01. The Plaintiff No 1 contends that, she was aware about the existence of the Will-ExP20 from the date of its existence. So the Plaintiff No 1 was having knowledge of the Will-ExP20, said to have been in existence from 2004.
40.02. The Plaintiff No 1 has filed the present suit in the year 2005 for the relief of Partition contending that she is having half share in the Suit Schedule Property.
40.03. But the Plaintiff No 1 has filed IA Nos 1/2021 and 2/2021 and got amended the Suit Plaint, 131 O.S.No.17613/2005 by getting incorporated Para 6a and the relief of Declaration, in the year 2021.
40.04. The relief of Declaration is claimed by the Plaintiff No 1, after a period of 16 ½ years from the date of her knowledge.
40.05. So, the relief of Declaration claimed by the Plaintiff No 1, is a time barred claim.
40.06. Thus the Defendant Nos 2 & 3 have proved that, the relief of Declaration sought for by the Plaintiff No 1, on the basis of the Will-ExP20 is barred by law of limitation, as provided U/Art 58 of the Limitation Act.
Hence, I am constrained to answer ADDL ISSUE NO 3 IN THE AFFIRMATIVE.
41. ADDL ISSUE NO.2:
The learned Counsel for the Defendant Nos 2 & 3 would contend that the relief of Declaration claimed by the Plaintiff No 1 is not maintainable, as she has 132 O.S.No.17613/2005 claimed the relief without seeking the relief of Possession. He has placed his reliance on two decision, viz.,
a) of the Hon'ble High Court of Karnataka, in the case of Shri. Bharatesh Balasaheb Kuppanatee and Anr, V/s Shri. Noorbabasab Peeraso Mantoorkar since dead by LRs, reported in AIR 2018 (3) KCCR 2175, wherein it is observed in Para No.12, as under:-
"12. On going through the above said proposition of law with reference to the facts and circumstances of the case, the present suit is filed for declaration, injunction and mandatory injunction and the plaintiff has not sought for possession of the property. Under such circumstances, the question which remains to be considered by this Court is only with regard to declaration that he is the owner of the suit property. As held by the Hon'ble Apex Court in the above quoted decision and by this Court, a suit for mere declaration is not maintainable. This proposition of law has not been properly considered and appreciated by the first Appellate Court and has erroneously, without a discussion on the merits of the case, has come to a wrong conclusion."133
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b) of the Hon'ble High Court of Karnataka, in the case of Hulugappa and Ors., V/s Dundappa and Anr., reported in 2021 (1) KCCR 178, wherein it is observed in Para Nos.10, as under:-
"10. The case of plaintiffs is that the plaintiffs are the owners of the suit schedule properties. The said properties were originally owned by one Hanumappa who is the original propositus and plaintiff No.1 is the grandson and plaintiffs No.2 to 4 are the sons of the said Hanumappa. After the death of Hanumappa, plaintiffs have succeeded to the suit lands and they are in possession of the suit lands. The plaintiffs have filed the suit for declaration of ownership, but in fact plaintiffs have not produced any records to show that suit property was owned and possessed by original propositur namely Hanumappa and further revenue records produced go to show that - 11 - the property is in the name of defendants No.1 and 2. Further plaintiffs have not produced any records to show that plaintiffs are in possession of the suit property. The plaintiffs have not produced any title deeds to show that the plaintiffs are the owners of suit properties. As per the provisions of Section 34 of Specific Performance Act, 1963 suit for mere declaration without seeking consequential relief of possession, the suit is not maintainable. Therefore, the trial Court rightly held that the plaintiffs have failed to prove 134 O.S.No.17613/2005 that they are the owners of suit properties and further failed to prove that the plaintiffs are in possession of the suit properties.
41.01. On perusal of the contents of the Suit Plaint, more specifically at Para No 3, wherein the Plaintiff No 1 has contended that, Suit Schedule Property consists of Ground Floor, First Floor and Second Floor; she is residing in the Ground Floor and Original Defendant No 1/Transposed Plaintiff No 2 and the Defendant No 2 are residing in the First Floor; and the Second Floor is kept vacant.
41.02. When the Plaintiff No 1 claims the relief of Declaration to declare as the Absolute owner of the Suit Schedule Property, against the Defendant Nos 1 to 3; and when she contends that the Defendant Nos 1/Transposed Plaintiff No 2 and the Defendant No 2 are in possession of the First Floor, then it is encumbent upon her to claim the relief of Possession, when she has sought for such relief of Declaration.135
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42. Secondly, when the Plaintiff No 1 has failed to prove that, her husband late Roman Anthony Saldanha has executed a Will dated 19.09.2004-ExP20, bequeathing the Suit Schedule Property in her name, as contended in Para No 6a of the Amended Suit Plaint; and the relief of Declaration sought for by the Plaintiff No 1, on the basis of the Will-ExP20 is barred by law of limitation, as provided U/Art 58 of the Limitation Act.
So the Plaintiff No 1 is not entitled for the relief of Declaration, as prayed for by her under Prayer Para 1(a) of the Suit Plaint.
Hence, I answer ADDL ISSUE NO 2 IN THE NEGATIVE.
43. ISSUE NO.2:
As observed under Issue No 1, that the Suit Schedule Property belongs to Roman Anthony Saldanha. And said Roman Anthony Saldanha belongs to the denomination of Roman Catholic, an Indian Christians. So the provisions of the Indian Succession Act, will be applicable.136
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44. Though the Plaintiff No 1 had setup a Will-
ExP20 and had claimed to have succeeded the Suit Schedule Property from her husband Roman Anthony Saldanha, by way of Testamentary Succession, but she has failed to prove the existence, contents, condition, execution and Attestation of the Will-ExP20, so Testamentary Succession will not flow, but Intestate Succession will flow inrespect of the Suit Schedule Property, as per the provisions of the Indian Succession Act, more specifically as per Chapter II, Sections 32 to
48.
45. The Learned Counsel for the Defendant Nos 2 & 3 would contend that Original Defendant No 1/Transposed Plaintiff No 2, being the mother; and the Defendant Nos 2 & 3, being the sisters will have share in the Suit Schedule Property. He has placed his reliance on the decision of the Hon'ble Apex Court, in the case of B. C Singh (D) by Lrs V/s J. M Utarid (D) by LRs, reported in 2018(2) KAR. LR 211(SC), wherein it is observed in para No.18, as under:-
137O.S.No.17613/2005 "18. It is clear from this provision that in case the intestate has not left a lineal descendant, nor father, nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him, such children taking equal shares only the shares which their respective parents would have taken if leaving at the intestate death. In the instant case, Dr. S.L. Singh has left behind her sister, Ida Utarid. She has not left behind any lineal descendant. Ida Utarid was the only near kindred and preferential heir of the intestate and she would have succeeded to 1/4th share in the property."
46. On applying the provisions- Sections 33A, 33(b), 38, 41 and 43 of Indian Succession Act, to the instant case at hand, it is seen that Roman Anthony Saldanha has died leaving behind him, his wife- the Plaintiff No 1; his mother- the Original Defendant No 1/Transposed Plaintiff No 2; his sisters- the Defendant Nos 2 & 3, then the wife-Plaintiff No 1 gets half share;
the mother- Original Defendant No 1/Transposed Plaintiff No 2, the Defendant Nos 2 & 3, will get 1/3rd 138 O.S.No.17613/2005 share each in the remainder half share. So each of them get 1/6th share each.
47. The Original Defendant No 1/Transpose Plaintiff No 2 has died during the pendency of this suit. So as per Sec 33, the 1/6th share of the Original Defendant No 1/Transposed Plaintiff No 2, will devolve upon the Defendant Nos 2 & 3, as they are her only heir i.e., daughters.
The share of the Defendant Nos 2 & 3, will get enlarged, on the death of the Original Defendant No 1/Transposed Plaintiff No 2.
Therefore, the Defendant Nos 2 & 3 will get 1/4th share each in the Suit Schedule Property.
48. With regard to transaction of Gift:
The Learned Counsel for the Plaintiff No 1 contends that, Plaintiff No 1 on succeeding the Suit Schedule Property from her husband-Roman Anthony Saldanha, by way of Testamentary Succession, she has gifted the said property to her sister- the Defendant No 4, by virtue of the Registered Gift Deed dated 139 O.S.No.17613/2005 22.04.2017-ExD7. And the Defendant No 4 has become the actual owner in possession of the said property.
Percontra, the Learned Counsel for the Defendant Nos 2 & 3 would firstly contend that, there is no pleadings to the effect of execution of the Gift Deed by the Plaintiff No 1 infavour of the Defendant No 4, in the Suit Plaint. He has placed his reliance on the below mentioned two decisions, viz.,
a) of the Hon'ble High Court of Himachal Pradesh, in the case of M/s Gabion Technologies India Pvt. Ltd., V/s M/s Amcon Master Builders Missarwala, reported in AIR 2017 HP 140, wherein it is held that;
" Evidence led without evidence is in admissible."
b) of the Hon'ble Apex Court, in the case of Rajasthan State TPT Corporation and Anr., V/s Bajrang Lal, reported in 2014 AIR SCW 2058, wherein it is observed in Para No.12, as under:-
"12. It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the plaint 140 O.S.No.17613/2005 and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. (Vide: M/s. Larsen & Toubro Ltd. & Ors. v. State of Gujarat & Ors., AIR 1998 SC 1608; National Building Construction Corporation v. S. Raghunathan & Ors., AIR 1998 SC 2779; Ram Narain Arora v. Asha Rani & Ors., (1999) 1 SCC 141; Smt. Chitra Kumari v. Union of India & Ors., AIR 2001 SC 1237; and State of U.P. v. Chandra Prakash Pandey, AIR 2001 SC 1298.)"
Secondly he would contend that, it is Pendent lite transaction. IT will have no effect on the shares of the Defendant Nos 2 & 3. He has placed his reliance on the below mentioned decisions:
a) of the Hon'ble High Court of Madras, in the case of S. Varadarajan and Anr., etc., V/s Smt. V. Rajam & Ors., Etc., wherein it is held as under:-
"Purchasers of the Property from the Defendants are not the necessary nor proper parties to the adjudication of the lis. If the Plaintiff succeeds purchasers are to face legal consequences arising out of Doctrine of Lis Pendens."
b) of the Hon'ble High Court of Madras, in the case of G. Krishnamoorthy V/s Sukumar 141 O.S.No.17613/2005 and Ors., reported in AIR 2004 NOC 11 (MADRAS), wherein it is held that:-
"Sale of Property during pendency of the suit by one of the litigant. Construction of the super structure over the said property. No prior permission of the Court obtained for alienation. Purchaser cannot claim any equity over property as of right."
c) of the Hon'ble High Court of Karnataka, in the case of Abbaiah Reddy V/s Chinnaswamy and Anr, reported in 2019 (1) AKR 754, wherein it is observed in Para No.12, as under:-
"12. It appears that respondent no. 3 Sri Ashok R Jain appears to have purchased the suit property during pendency of the suit. This sale is hit by section 52 of the Transfer of Property Act. If he has purchased the very same suit property, he gets no right or title."
d) of the Hon'ble High Court of Kerala, in the case of V. T Vijayan V/s U. Kuttappan Nair and Ors., reported in AIR 2019 Kerala 102, wherein it is observed in Para No.14 and held in Para No.17, as under:-
"14. Broadly, two kinds of transactions, by the parties to the lis, without the authority 142 O.S.No.17613/2005 of the court, during the pendency of the suit are affected by the operation of section 52 of the Act, i.e., (1) Transfer of the property involved in the suit or proceedings, (2) any mode of dealing with the property, which would adversely affect the rights of any other party thereto under any decree or order, which may be made in the suit or proceedings. The expression otherwise dealt with by any party has a very wide meaning and any act or any mode of dealing with the subject-matter of the suit during the pendency of the suit or proceedings, which would adversely affect the rights of any other party thereto, under any decree or order that may eventually be passed in the suit, would fall under the said expression. In other words, any mode of dealing with the subject-matter of the suit, by any party to the lis, which would adversely affect the rights of any other party under any decree that may be passed, would be subject to the result of the suit.
17. Therefore, we find that execution of an agreement for sale of the subject-matter of the suit, during the pendency of the suit, is a dealing with the subject-matter of the suit, which would adversely affect the rights of other party under the decree, that may be passed in the suit. Hence, an agreement for sale executed by the parties to the lis, during the pendency of the suit is hit by the doctrine of lis pendens."143
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e) of the Hon'ble High Court of Bombay, in the case of Annapurnabai Zipa Patil V/s Panabai Zipa Patil and Anr., reported in 1992 0 Supreme (Bom) 533, wherein it is observed in Para No.12, as under:-
"12. The aforesaid conclusion of mine is also supported by the decision of this High Court in Krishnaji Pandharinath Balwankar v. Anusayabai Sidram Gulbile, 60 BLR 1083. In the said case wife filed suit for maintenance claiming charge on husband's property. However, the said suit was dismissed under Order IX, Rule 2 of the Civil Procedure Code. Wife filed application for restoration of the suit and the same was granted by the Court. In the meantime it appears that the husband sold the property in between the time when the suit was dismissed and before it was restored. Decree was passed in wife's favour and creating charge on the property for payment of maintenance. In Darkhast in execution of the decree of the property sold by the husband, the question posed before the Court was whether the sale Was affected by rule of lis pendens, i.e whether the plaintiff's suit was one where right to the suit property was directly and specifically in question and, therefore, the decree was liable to be executed against the house purchased by the purchaser having no notice. In the aforesaid 144 O.S.No.17613/2005 case this High Court held that as the plaintiff has claimed a charge on the house and the Court had declared the charge, the plaintiff's suit was a suit in which right to immovable property was directly and specifically in issue within section 52 of the T.P Act. Further the Court held that the application of the doctrine of lis pendens does not depend upon the purchaser having notice of the suit. The fact that the appellant had no notice of the plaintiff's suit does not prejudicially affect the right of the plaintiff to execute the decree against the house. The Court held that the application of the rule contained in section 52 of the T.P Act has to be adjudged by reference to the claim made in the suit and the decree passed and not on any academic consideration as to what the true state of the law applicable to the dispute between the parties is and whether the decree was properly passed in the light of the true rule applicable."
f) of the Hon'ble High Court of Madras, in the case of G. Krishnamoorthy V/s Sukumar and Ors., reported in 2003 0 Supreme (Mad) 76, wherein it is observed in Para Nos.12 to 14, as under:-
"12. Section 52 of the Transfer of Property Act envisages that during the tendency of any proceeding, in any court, in 145 O.S.No.17613/2005 which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court.
13. From this provision it is clear that there is a statutory bar of alienation by the parties to the proceeding in respect of the properties which are the subject matter of the proceeding. If any one wants to alienate the property, they ought to have obtained the prior permission of the court.
14. The purpose of the provision is any party to the litigation shall not act adverse to the interest of the other by alienating any of the properties which are the subject matter of the litigation. The intention of the legislature is that no party to the proceeding can defeat the claim of other in case if he succeeds in the litigation. In fact the learned Judge after referring some of the judgments held that the appellant is not entitled to claim any equity as of right."
49. Admittedly suit is filed on 16.11.2005. As per ExD7-Gift Deed, the Plaintiff No 1 is said to have gifted the Suit Schedule Property on 22.04.2017. So the 146 O.S.No.17613/2005 transaction of Gift taken place inbetween the Plaintiff No 1 and the Defendant No 4 is a pendente lite transaction.
No any prior sanctioned is obtained by the Plaintiff No 1 to alienate/Gift the Suit Schedule Property.
So the Defendant No 4 gets no valid rights over the Suit Schedule Property, under the said Gift Deed dated 22.04.2017-ExD7.
49.01. Secondly, the Plaintiff No 1 has not pleaded about she executing the Gift Deed-ExD7 infavour of the Defendant No 4.
It is at the instance of the Original Defendant No 1/Transposed Plaintiff No 2, the Defendant No 4 was impleaded in this suit under IA No 4/2017, as per orders dated 21.10.2019.
49.02. And thirdly, as per the Pleadings of the Plaintiff No 1, in Para No 3 of the Suit Plaint, wherein she contends that, the Defendant Nos 1 & 2 are in possession of the First Floor of the Suit Schedule Property. But as per the recitals of the Gift Deed-ExD7, more specifically, at Page No 4, Para No 3, it is 147 O.S.No.17613/2005 mentioned that the Plaintiff No 1 had delivered the Suit Schedule Property to the Defendant No 4.
Neither the Plaintiff No 1, nor the Defendant No 4 have shown or produced any material on record to show that the Plaintiff No 1 has delivered the Suit Schedule Property to the Defendant No 4, under the gift Deed- ExD7. In the absence of such cogent evidence, the most important ingredient of Sec 122 & 123 of the Transfer of Property Act, dealing with transaction of Gift, withregard to delivery of possession of the immovable property, is not satisfied.
So the transaction of Gift is not proved by the Plaintiff No 1 and the Defendant No 4.
49.03. Thus, the Plaintiff No 1 and the Defendant No 4 have failed to prove, firstly the ingredients of Gift, more specifically, withregard to delivery of possession of the Immovable Property under the deed of Gift-ExD7; and Secondly, the transaction of Gift under the Gift Deed-ExD7 is pendent lite transaction; and since no prior permission is taken by the Plaintiff No 1 from the 148 O.S.No.17613/2005 Courts, so the said transaction is hit by Sec 52 of the Transfer of Property Act.
50. Lastly, the Learned Counsel for the Defendant Nos 2 & 3 contends that, since the Plaintiff No 1 has claimed the relief of Declaration, she ought to have paid the Court fees U/Sec 24 of the Karnataka Court Fees and Suit Valuation Act. He has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of Mr. Vikram Ravi Menezes V/s Mr. Victor Goveas, reported in ILR 2015 KAR 3554, wherein it is observed in Para No.8 and held in Para No.12, as under:-
"8. However, if we look at the scheme of Section 24, Section 24(a) deals with declaration of title and for possession of the property to which the declaration relates and the court fee is payable on the market value of the property or on Rs. 1,000/-, whichever is higher. Section 24(b) deals with cases where the person who is seeking the relief is in possession of the property and is only seeking a declaration or consequential injunction with reference to immovable property in which event, the fee shall be computed on one half of the market value of the property or on Rs.149
O.S.No.17613/2005 1,000/-, whichever is higher. Section 24(d) is attracted, when the case does not fall under clause (a) and (b), thereof.
12. In view of the provisions to Section 24, as referred to above, if a plaintiffs title to the property is disputed, if his possession is sought to be disturbed, or if he is not in possession and wants forever possession, Section 24(a) and (b) provides for valuing such suits and the court fee payable. It is only when the case does not fall under Section 24(a) and (b), Section 24(d) is attracted as in the instant case. The plaintiff cannot seek a declaration that he is the owner of the suit schedule property as admittedly he is not the owner. Admittedly, he is not in possession. Therefore, the question of seeking a decree of injunction, would not arise. He can seek for delivery of possession provided he has title, which he does not possess as on the date of the suit. Therefore, his invoking Section 24(d) in those circumstances, does not stand to reason."
50.01. Basically, the Plaintiff No 1 had filed a suit for the relief of Partition against the Defendant Nos 1 to 3. Subsequently, she has claimed the relief of Declaration of her title on the basis of the Will-ExP20.
Since the Plaintiff No 1 has not claimed the relief of Possession, so Sec 24(a) of the Karnataka Court Fees 150 O.S.No.17613/2005 and Suit Valuation Act, 1958 is not attracted, And since Sec 24(a) is not attract so Sec 24(d) of the Karnataka Court Fees and Suit Valuation Act, 1958 will be attracted, to the instant case at hand.
50.02. Therefore, when the Plaintiff No 1 has paid the maximum Court fees U/Sec 35(2) of the Karnataka Court Fees and Suit Valuation Act, 1958, then under such circumstance, she neednot pay the Court fees, as required either U/Sec 24(a) or 24(b) of the Karnataka Court Fees and Suit Valuation Act, 1958.
Thus, no stuff is found in the submission of the learned Counsel for the Defendant Nos 2 & 3.
51. Thus viewing the matter from every angle, it can be concluded that, the Plaintiff No 1 will be entitled to have half share; the Defendant Nos 2 & 3 will have 1/4th share each, in the Suit Schedule Property.
Since the transaction of Gift taken place under ExD7-Gift Deed is a pendent lite transaction and the 151 O.S.No.17613/2005 said transaction is not proved. So the Defendant No 4 will not get any right over the Suit Schedule Property.
Hence, I am constrained to answer ISSUE NO 2 PARTLY IN THE AFFIRMATIVE.
52. ISSUE NO.3:-
For having answered Issue No.1 and Addl Issue No 3 in the Affirmative; Issue No 2 Partly in the Affirmative; and Addl Issue Nos. 1 & 2 in the Negative, I proceed to pass the following:
ORDER The suit of the Plaintiff No 1 is Decreed inpart.
It is declared that, the Plaintiff No 1 is entitled to have half share in the Suit Schedule Property.
It is further declared that the Defendant Nos 2 & 3 are entitled to have 1/4th share each, in the Suit Schedule Property.
The Relief of Declaration claimed by the Plaintiff No 1 on the basis of the Will- ExP20 is hereby Rejected.152
O.S.No.17613/2005 Further it is declared that the Gift Deed dated 22.04.2017-ExD7, said to have been executed by the Plaintiff No 1 infavour of the Defendant No 4 is declared to be hit by the Principles of Lis Pendens, as provided U/Sec 52 of the Transfer of Property Act. Consequently the said Gift Deed-ExD7 is declared as Null and Void; and not binding to the shares of the Defendant Nos 2 & 3, in the Suit Schedule Property.
Partition be effected in the Suit Schedule Property, inbetween the Plaintiff No 1 and the Defendant Nos.2 and 3, as per the Partition Act.
All the costs of the Suit, shall be borne by the Plaintiff No 1, alone.
Draw Preliminary Decree accordingly.
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(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 15th day of March, 2022) (Abdul-Rahiman. A. Nandgadi.) LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 153 O.S.No.17613/2005 Schedule Property:
All that piece and parcel of the Property bearing Corporation No.7 (old No.707A) BMP Ward No.73, situated at 12th Cross, (Old 8th Cross), Vinayakanagar B Block, Konena Agrahara, HAL P. O, Bengaluru- 560 017, measuring East to West : 29 feet and North to South: 40 feet, totally measuring 1160 Square feet in area and bounded by on:
East by: Private Property, West by: Site No.10, North by: Road, South by: Site No.8.
Together with a building there on with three floors, Ground Floor squares, First Floor of 8 squares and Second floor of 4 Squares, roofing, mosaic floors, doors and windows made of Hanne wood.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 154 O.S.No.17613/2005 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS: PW.1: E P Subadra.
PW.2: Santhosh.
PW.3: P. M. B Balu.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P1: Tax Receipt.
Ex.P2: Khata Certificate.
Ex.P3: Extract of house tax assessment list. Ex.P4 to 7: Letter of Citi Bank.
Ex.P8: Statements give by Citi Bank. Ex.P9: Copy of the notice issued to the 1st Defendant. Ex.P10: Postal cover.
Ex.P11: The letter found in cover. Ex.P12: Acknowledgment.
Ex.P13: Challan counter foil.
Ex.P14:Encumbrance Certificate. Ex.P15: Served copy of the plaint in OS No.25405/2007. Ex.P16: Certified copy of the Written Statement filed in OS No.25405/2007.
Ex.P17: Certified copy of the Sale Deed dtd.14.08.2001. Ex.P18: Sale Deed dtd.31.05.2005. Ex.P19: Certified copy of the Sale Deed dtd.28.06.2006. Ex.P20: Original Will dtd.19.09.2004. Ex.P20(A) to (D) : Signatures.
Ex.P21, 21(A): Notice issued by the BBMP Authorities alongwith Postal envelope.
Ex.P22: Letter received from City Bank.155
O.S.No.17613/2005 Ex.P23: Letter received from Air Force record office dtd.08.06.2005.
Ex.P24 & 24(A): Attestation of Family Tree issued by the Deputy Tahsildar, Varthur Hobli alongwith Family details in the form of Affidavit. Ex.P25: Certified Copy of Deposition of PW-1 in the present suit deposed on 11.07.2011. Ex.P26: Copy of the complaint, dated : 17.09.2016. Ex.P27 & 27(A): Copy of the complaint, dated :
19.01.2007 alongwith Postal receipt.
Ex.P28: Copy of the application made to A.R.O. BBMP, dated : 21.09.2005.
Ex.P29, 29(A) & (B): Reply dated : 20.09.2016 with Postal receipt and acknowledgment. Ex.P30, 30(A), 30(B) & 30(C): Copy of the Succession certificate received under RTI, with application, reply letter under RTI and Postal envelope. Ex.P31: Identity card issued by the H.R. Management, Air Force.
Ex.P32: Particulars Book of Ex-Airman issued by the H.R. Management, Air Force.
Ex.P33 & 33(A): Certified Copy of the complaint dated :
17.09.2016, with FIR in Airport P.S. Cr.No.171/2016.
Ex.P34: Copy of the letter dated : 02.07.2016. Ex.P35: Forensic report.
Ex.P36: Certified copy of the complaint in PCR No.53633/2015.
Ex.P37: Certified copy of the complaint in Cr.
No.13/2016.
156O.S.No.17613/2005 LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: Roshan D'Souza.
DW.2: Smt. Kumari Pallian.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D1: Statement of Citi Bank.
Ex.D2: Certified copy of Sale Deed dtd.28.06.2006. Ex.D3: Certified copy of petition filed at P & SC No.25007/2018.
Ex.D3(A): Relevant portion of Para No.3 in Ex.D3. Ex.D4: Certified copy of memo.
Ex.D5: Certified copy of the Petition filed at P& SC No.25007/2018.
Ex.D5(A): Relevant portion of Para No.4. Ex.D6: Certified copy of the Petition filed in P&SC No.337/2018.
Ex.D7: Certified copy of the Gift Deed dtd.22.04.2017. Ex.D8: Special Power of Attorney. Ex.D9: Certified copy of Sale Deed dtd: 14.08.2001. Ex.D10 & 11: 2 Pass books of Annie Saldanha held with State Bank of Mysore.
Ex.D12: Certified copy of the Sale Deed dt: 31.03.2005. Ex.D13: Letter issued to the Asst. Revenue Officer. Ex.D14: Objections filed with Asst. Revenue Office. Ex.D15, 15(A) & 15(B): Office copy of the objections filed with the Revenue Officer, dt: 22.11.2005 with postal receipt and acknowledgment Ex.D16: Office copy of the Legal Notice, dtd:16.11.2005. Ex.D17: Office copy of the reply notice dtd: 24.11.2005. Ex.D18: Endorsement issued by the BBMP dt:11.04.2016.
Ex.D19: Endorsement issued by the BBMP dtd:14.03.2016.157
O.S.No.17613/2005 Ex.D20: Copy of the letter issued by the Plaintiff No.1 dated : 08.02.2016 alongwith 12 documents, received under RTI Act [20 pages]. Ex.D21: Copy of the FIR in Air Port P.S. Cr.No.53/2016. Ex.D22: Office copy of the complaint dtd: 06.04.2016. Ex.D23: Certified copy of the orders passed by Hon'ble High Court of Karnataka in WP 22484/2017 (LB-BMP) dated : 19.07.2017.
Ex.D24 to 27: 4 counter receipts. Ex.D28 to 31: Certified copy of the Order sheet, Suit Plaint alongwith valuation slip, Written statement, issues in O.S.No. 16426/2006.
Ex.D32 & 33: Certified copy of Petition, Deposition in Crl.Misc. 56/2013.
Ex.D34: Certified copy of Legal Notice issued by the CITI Bank.
Ex.D35: Ledger Extract issued by the State Bank of Mysore. Ex.D36: Application submitted for transfer of Khatha to the BBMP Authorities.
Ex.D37 & 38: Khatha Certificate and Khata Extract. Ex.D39 to 41: Two Property Tax Receipts & Challan. Ex.D42, 42(A) to Ex.D44, 44(A): 3 Electricity bill requisition and Receipts.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)