Bangalore District Court
1. Smt. Jayamma vs 1. Smt. Nagalakshmi on 19 April, 2021
O.S.No.8985/2014
IN THE COURT OF I ADDITONAL CITY CIVIL &
SESSIONS JUDGE AT BENGALURU (CCH.NO.2)
Dated this the 19th day of April 2021.
O.S. No.8985/2014
Present : Sri. Somashekar C. Badami, B.Com., LLB.,
I Additional City Civil & Session Judge,
Bengaluru.
Plaintiffs : 1. Smt. Jayamma,
D/o. Late Lakshmamma,
W/o. Chinnathimmaiah,
Aged about 35 years,
R/o. Duradakunta Village & Post,
Kalyanadurga Taluk,
Ananthapuram District,
Andhra Pradesh.
2. Sri. Thippaiah,
S/o. Late Lakshmamma,
Aged about 28 years,
C/o. Sri. Rudraiah,
Venkatamma Colony,
Gugratti, Kakarlatota Post,
Bellary Taluk & District.
3. Sri. Nagaraju. A,
S/o. Late Parvathamma,
Aged about 44 years,
R/o. Payala Street,
Behind Kudure Galappa House,
Bellary Taluk & District.
4. Sri. Krishna. A,
S/o. Late Parvathamma,
Aged about 42 years,
R/o. Kakarlatota Village & Post,
Behind Anjinaya Temple,
O.S.No.8985/2014
Bellary Taluk & District.
5. Sri. Ramesh.A,
S/o. Late Parvathamma,
Aged about 40 years,
R/at. Door No.25,
Rupanagudi Narappa Street,
Millerpet, Bellary.
6. Smt. Jyothi,
D/o. Late Parvathamma,
W/o. Nagaraju,
Aged about 38 years,
R/at. Satya Sai Nilayam,
Chikka Togur Road,
Pragathinagar,
Electronic City Post,
Bangalore - 560 100.
7. Smt. Shivamma,
D/o. Sandireddy Yenkanna
@ Venkanna,
W/o. Late Yerriswamy,
Aged about 60 years,
C/o. Rudraiah Chowdary,
Kakarlatota Village & Post,
Behind Anjinaya Temple,
Bellary Taluk & District.
8. Sri. Narayanaswamy,
S/o. Sandireddy Yenkanna
@ Venkanna,
Aged about 56 years,
R/at. Door No.11, Block 2,
Godavari Police Officers' Quarters,
K.S.R.P. Lines, Koramangala,
Bangalore - 560 034.
9. Kum. Bheemeshwari,
D/o. Late Parvathi,
Aged about 25 years,
R/at. Door No.1447,
O.S.No.8985/2014
Uravakonda Village & Post,
Bellary Road,
Uravakonda Mandalam,
Anathapuram District.
10. Sri. Mallikarjuna,
S/o. Sandireddy Yenkanna
@ Venkanna,
Aged about 51 years,
R/o. Pulaguttapalli Village,
Nelagonda Post,
Guntakal Mandal,
Ananthapura District,
Andra Pradesh.
11. Smt. Saroja,
D/o. Sandireddy Yenkanna
@ Venkanna,
W/o. Mohan Babu,
Aged about 49 years,
R/o. Old By Pass Road,
Jagruti Nagar, Cowl Bazaar,
Bellary.
12. Smt. Leelavathy,
D/o. Sandireddy Yenkanna
@ Venkanna,
W/o. A. Sheshappa,
Aged about 46 years,
R/at. Door No.31, Ashoknagar,
Behind Petrol Bunk,
Ahambhavi, Bellary.
13. Sri. Venkatesh,
S/o. Sandireddy Yenkanna
@ Venkanna,
Aged about 44 years,
C/o. Mohan Babu,
Old ByPass Road,
Jagruti Nagar, Cowl Bazaar,
Bellary.
O.S.No.8985/2014
(Rep.by Sri. Narayana Reddy.M., Advocate)
V/s.
Defendants : 1. Smt. Nagalakshmi,
D/o. Late Neelamma,
W/o. Ramakrishna Chowdary,
Aged about 44 years,
C/o. Mohan Babu,
Old ByPass Road,
Jagruti Nagar, Cowl Bazaar,
Bellary.
(Rep. by Sri. Mohan M., Advocate)
2. Smt. Vishalakshi,
Aged major,
W/o. M. Ramanna,
No.4, ESI Quarters, Double Road,
Indiranagar, Bangalore - 560 038.
Presently residing at
C/o. H.N. Keshava Reddy,
No.292, 1st Cross,
Cambridge Layout,
Ulsoor, Bangalore - 560 008.
(R2. Impleaded vide court order
dated 19.01.2012)
(Rep. by Sri. Srinivas Kumar, Advocate)
Date of Institution of the
suit 21.11.2014
Nature of the Suit (suit
for pronote, Suit for Declaration
declaration and
possession, Suit for
injunction, etc.):
Date of the
commencement of 19.11.2012
recording of the Evidence:
O.S.No.8985/2014
Date on which the
Judgment was 19.04.2021
pronounced:
Total duration: Year/s Month/s Day/s
06 05 07
(Somashekar C. Badami)
I Addl.City Civil & Sessions
Judge, Bengaluru.
JUDGMENT
The present petition under section 372 of Indian Succession Act, 1925 under P. & Sc. No. 36/2011 for grant of succession certificate in favour of plaintiffs is converted as original suit No.8985/2014 by virtue of order of this court in view of counter claim of succession certificate in favour of Respondent No.2.
2. The brief facts of the petitioners case are that; as per G.tree of the family of Late Sandireddy Yenkanna @ Venkanna, who married with Smt. Laxmidevi. Out of their wedlock 11 children born to them. They are (1) Smt. Laxmamma, who is no more.
O.S.No.8985/2014 The petitioner 1 and 2 are her children. (2) Smt.Neelamma is also no more. The respondent No.1 is her daughter. (3) Smt. Parvatamma is also died leaving behind her children as Petitioners 3 to 6. (4) Smt Shivamma, who is petitioner No.7. (5) Late Smt Aruna K. (6) Narayanaswamy is the petitioner No.8 (7) Smt. Parvathi is died leaving behind her daughter the petitioner No.9. (8) Mallikarjuna is the petitioner No.10. (9) Smt Saroja is the petitioner No.11. (10) Smt. Leelavathy is the petitioner No.12; and (11) Venkatesh is the petitioner No. 13.
3. The fifth child of Sandireddy Yenkanna @ Venkanna and his Wife Lamireddy by name Smt Aruna K. married with one Venugopal. Out of their wedlock no issues to them. Her husband VenuGopal was died on 03.12.1973. After death of her husband venugopal, Smt. Aruna K was residing in Bengalure city. She was state government employee working as a Staff Nurse at E.S.I. Hospital, Indiranagar, Bengalore. The suit schedule immovable and movable properties are all her self O.S.No.8985/2014 acquired properties. She was died on 23.08.2010 at Bengaluru City. It is alleged that, Late K. Aruna not at all executed any testament or will disposing her scheduled properties. The petitioners 1 to 13 are allegedly her legal heirs and succeeded to all her estate as per schedule of the petition. Except them, no other person to succeed the same. Therefore, they are allegedly entitled for succession certificate in respect of scheduled movable properties. Hence, the present petition for succession certificate in favour of petitioners in respect of scheduled movable properties only by deleting the item no. 1 and 2 immovable properties by order dated 21.04.2011 of this court.
4. As could be seen from the records, after registration of this P. & Sc. Case, the same is made over to this court by the Prl. City Civil and Sessions Judge. In pursuance of notice through paper publication, the Respondent No.1 entered her appearance through Sri. M.M. Advocate and filed her objection. The Respondent No. 2 is impleaded as per order dated 19.01.2012 on I.A O.S.No.8985/2014 No.1 under order 1 rule 10 of C.P.C. The Respondent No.2 appeared through Sri. S.V.N. Advocate and filed her written statement/objections with counter claim of succession certificate in her favour in respect of suit schedule movable properties.
5. The sum and substance of objections of Respondent No.1 are that; the petitioners knowing fullwell suppressed the material facts with the malafidie intention for unlawful gain and they are not come with clean hands. The petition is not maintainable either in law or on facts. It is specifically contended that, Smt. Vishalakshi B., is her only daughter. The deceased Smt. Aruna K., was her aunt. Smt. Aruna after lapse of six months of her marriage, her husband was died. She was living alone. Such being the position, said Aruna approached her and requested to get her daughter by way of adoption. She and her husband both were freely consented to give their daughter and decided to arrange ceremony of adoption. After fulfillment of all customary modes like, pooja, homa, havana handed over her O.S.No.8985/2014 daughter at her age of 3 to 4 years to said Smt. K.Aruna to the knowledge of petitioners. Thereafter, Smt. K Aruna became the adopted mother of her daughter Smt. B. Vishalakshi, who is adopted daughter of Smt. Aruna is a necessary party, but the petitioners are not impleaded her with intent to grab the scheduled properties of deceased Aruna.
6. It is further specifically contended that, the respondent No.2 is the only legal heir of deceased Smt. Aruna and she alone has right to succeed to the estate of the deceased as her adopted daughter. After adoption, the respondent No.2 grown up under the shelter of deceased Smt. Aruna, who search bride to the respondent No.2 and performed her marriage with one M. Ramanna. Out of their wedlock, the respondent No.2 has got three children by name 1) Nidhi, 2) Balaji, and 3) Aruna. The Respondent No.2 looked after Smt. Aruna, who had love and affection towards her and her children. Out of such love and affection, said Aruna was nominated her grand daughter viz., Nidhi to her deposit O.S.No.8985/2014 in Sri. Subramneshwara CoOperative Bank Ltd.,
7. It is further contended that, during the life time of deceased Smt. Arura fell ill heath. The respondent No.2 alone looked after her to discharge her duties as a daughter. Except, the respondent No.2 no body was taking the care of deceased. Said Aruna got admitted for treatment, but unfortunately she was not able to recover and ultimately died in Karave hospital at Indira Nagar, Bangalore on 23.08.2010. The dead body was handed over to her adopted daughter i.e., the respondent No.2, who performed all funerals and also received Rs. 5,000/ from the department for her funeral expenses. It is also contended that, during life time, i.e., on 06.12.2009, K Aruna had issued a letter of nomination to the concerned department requesting after her death to give all her benefits to her adopted daughter Smt. B. Vishalakshi. She was also issued another letter dated 16122009 to nominate the respondent No.2. She was also submitted form No.7 on 06.12.2009 nomination of respondent No.2 for the benefits under the KGID. Thus, the respondent O.S.No.8985/2014 No.2 alone is the legal heir of deceased and thereby, it is requested to dismiss the petition of the petitioners and issue succession certificate in favour of Respondent No 2 alone in the ends of justice and equity.
8. The sum and substance of the written statement/objections of the Respondent No.2 are that; there is no cause of action for the petitioners to file the petition. She was impleaded on her application and in support of the same filed her affidavit and requested to treat the same as part and parcel of her written statement. It is contended that, during the life time, the deceased K Aruna had no issues, therefore adopted her as her daughter with the consent of her father and respondent No.1, who is none other than own elder sister of said K Aruna. After adoption, she was continued under the care and custody of deceased K Aruna, who admitted her to the primary education at Hospet in Bellary district from 198485 onwards and by that time took a group photo. The deceased had LIC during her life time, wherein she nominated her as adopted daughter.
O.S.No.8985/2014 Thus, in almost all the records, her name shown as daughter of deceased K. Aruna.
9. It is further contended that, during the life time of deceased K. Aruna, she had executed a will on 18.07.2006 to succeed her estate. Therefore, she alone is lawfully entitled to succeed to the estate of deceased. Except her, the petitioners or the respondent No.1 or anybody has no manner of right or interest to the estate of deceased K. Aruna. After the demise of deceased, she had applied for family pension and the same is pending for adjudication. Such being the real facts to the well knowledge of the petitioners, who are suppressing the same filed the present false petition without impleading her to defeat her lawful right over the estate of the deceased. The petitioners are no way connected to the estate of deceased. Wherefore, it is prayed to dismiss the petition of the petitioners and by paying separate required court fees, requested to grant her counter claim of issuance of succession certificate in her favour with costs in the interest of justice and equity.
O.S.No.8985/2014
10. On the basis of rival claims, my predecessor in office converted the present petition in to original suit and framed the following issues : ISSUES
1. Whether the plaintiffs No.1 and 2 proves that they are the children born out of the wedlock of Sandireddy venkanna @ Venkanna and Smt. Lakshmidevi?
2. Whether the plaintiffs further prove that Smt. Aruna.K. had acquired the plaint schedule properties and the plaintiffs are entitled for share in the said properties?
3. Whether the 2nd defendant proves that she is the adopted daughter of Smt. K.Aruna?
4. Whether the 2nd defendant further proves that deceased Smt. K. Aruna executed a Will dated 18.07.2006 in favour of the 2 nd defendant and she is entitled for the estate of deceased Smt. K.Aruna?
5. Whether the plaintiffs are entitled for the relief as prayed?
6. What decree or Order?
11. In order to prove the case of the petitioners, the petitioner No.13 alone examined as P.w.1 and got marked the documents at Ex. P1 to P17 on their behalf. On the other hand, both respondents and a witness are O.S.No.8985/2014 examined as D.w.1 to 3 and got marked the documents at Ex. D1 to D35. After closure of evidence of both sides, the case posted for arguments for long time. After, I resume charge of this office issued SOP notice to both. The counsel for defendant No.2 alone appeared and I heard him. In view of absence of learned counsels for Petitioners and Defendant No.1 their arguments taken as Nil. I perused entire oral and documentary evidence of both sides. Also apply my mind to the relevant question of law arises to the facts and circumstances of the case on hand.
12. My findings to the above issues are as under : Issue No.1 : In the affirmative Issue No.2 : In the negative Issue No.3 : In the negative Issue No.4 : In the negative Issue No.5 : In the negative Issue No.6 : As per final order;
for the following : O.S.No.8985/2014 REASONS
13. Issues No. 1 and 2 : The findings of facts involved in these two issues are inter connected to each other. Therefore, I have discussed the same together to avoid repetition. Before that, the issue No.2 is hereby altered by invoking order 14 rule 5 of C.P.C as "Whether the petitioners further proves that Smt. Aruna K had acquired the petition scheduled movable properties and they are legal heirs of Late Aruna K".
14. Looking to the pleadings and evidence of both sides, it is not at all in dispute that, the suit schedule immovable and movable properties are self acquired properties of the deceased Smt.K. Auna W/o. Late Venugopal. Her husband by name Venugopal was pre deceased to her just after lapse of 6 months from the date of marriage. This admitted fact also evident by his undisputed death certificate as per Ex.P17, which discloses, he was dead on 03.12.1973 at Huliguttapalli village of Gunthkal Mandalam of Ananthpuram district in O.S.No.8985/2014 Andra Pradesh state. It is admitted fact that, the said deceased Smt. K Aruna was government employee in "ESI Hospital, Indira Nagara at Bengaluru,'' and resided in the said hospital quarters during her last days as evident by Ex.P1, Ex.P12 and Ex.D27. It is also admitted fact that, deceased Smt. K. Auna was died issueless on 23.08.2010 at Bouring & Lady Curzon Hospital, Bengaluru as evident by her death certificate as per Ex.P4.
15. It is not in dispute that, this court is empowered to issue the succession certificate in respect of Movable properties only and accordingly, both rival claimants restricted their claim of succession certificate in respect of movable properties only as described in the amended petition schedule item No.1 to 3. In fact the schedule of immovable properties in the original petition is deleted in view of memo filed by the petitioners to that effect.
16. Four LIC Policies amounting to Rs. 50,000/ each as described under schedule. Ex.P13 and 14 are O.S.No.8985/2014 the premium receipt and policy bond of amended petition schedule (1)(a). Ex.P15 is the policy bond of amended petition schedule (1)(b). Ex.D12 is the first premium receipt of policy bond of amended petition schedule (1)(d). The LIC policy bonds of schedule 1(c) and 1(d) is not produced by either side. However in schedule the policy numbers and sum of the insurance one disclosed.
17. As per schedule mentioned in the amended petition there are several Bank deposits and S.B. Account in the name of deceased. The Ex.P8 is the Fixed Deposit Receipt for Rs. 25,000/ stands in the name of deceased K. Aruna in Syndicate Bank, Indira Nagar Branch. The Ex.P9 is one more F.D. Receipt for Rs.25,000/ in the same Bank stands in the name of deceased. The Ex.P10 is the Fixed Deposit Receipt for Rs. 1,00,000/ stands in the name of deceased K. Aruna in Indian Overseas Bank, Bangalore. The Ex.P11 is the Fixed Deposit Receipt for Rs. 60,000/ stands in the name of deceased K. Aruna in Sree Subramanyeswara CoOperative Bank Ltd., Avenue road branch, Bangalore. Thus, undisputedly as evident O.S.No.8985/2014 by these documentary evidence, the deceased K. Aruna died left behind her Bank fixed deposits for total amount of 2,10,000/. It is also not in dispute that, she has left behind her a S.B. A/c. No. 04322010029925 with balance amount of Rs. 99,324/ in Syndicate Bank, Indira Nagara Branch at Bengaluru. Either petitioners or the respondents not at all produced pass book or account extract in respect of said S.B. Account in the name of deceased. But, no dispute about the same.
18. As per schedule mentioned in the amended petition, deceased K Aruna being a government employee entitled for death benefits to the tune of Rs. 6,35,000/ inclusive of her G.P.F., Earned leave Salary, DCRG and EGIS. The Ex.P2 is the letter dated 10.01.2011 of petitioners No. 8, 12 and 13 given to the ESI hospital in respect of claiming details of nomination made by the deceased for her retirement/death benefits. The Ex.P3 is the reply letter dated 28.02.2011 by the authority of ESI hospital wherein, it is disclosed that "as per S.R.Book of the deceased K.Aruna, is not at all made nomination O.S.No.8985/2014 in any name". The Ex.P6 is the letter dated 03.11.2010 of ESI hospital given to the Respondent No.2 calling upon her to furnish certain documents about her claim for the service benefits of deceased in her name. Ex.P16 is the official letter dated 10.12.2010 from the Superintendent of ESI hospital to its Director. It discloses that, the service benefits of the deceased K. Aruna is not at all disbursed to anybody and it is still pending for disbursement in view of dispute between the present petitioners and respondents.
19. The petitioners No.1 to 13 are claiming that they are being class II heirs of the deceased K. Aruna entitled for the succession certificate. On the contrary, the respondent No.2/B. Vishalaxi claiming for the succession certificate in her name alone on the ground that she is the sole legal heir as an adopted daughter/foster daughter of the deceased on one hand and on the other hand, the deceased died testate by executing a will dated 18.07.2006 bequeathing all her estate in her name.
O.S.No.8985/2014
20. Let us, we have to determine about the legal heirship of the petitioners as the case made out by them. In order to substantiate the claim of the petitioners, the petitioner No.13 alone examined as P.w.1. He filed his affidavit in the form of chief examination, wherein he reiterated the petition averment. According to him, the deceased Aruna K is one of the daughter of her parents by name Late Sandireddy Yenkanna @ Venkanna and his wife Late Laxmidevi. He deposed that, the said parents of deceased K. Aruna are predeceased to her. This piece of his testimony is remained unchallenged in the result of his cross examination. Thus, the same is not at all disputed by the respondents either in their objection or during the course of cross of P.w.1.
21. P.w.1/S. Venkatesh reiterated the petition averments in his chief examination that the deceased K. Aruna has got seven sisters by name, 1) Late Smt. Laxmamma, 2) Late Smt.Neelamma, 3) Late Smt.Parvathamma 4) Smt.Shivamma 5) Late Parvathi, 6) Smt. Saroja, 7) Smt. Leelavathy and three brothers by O.S.No.8985/2014 name 1) Narayanaswamy, 2) Mallikarjuna, and himself 3) Venkatesh. The Ex.P5 is Vamsha Vruksha issued by the concerned authority of Andrapradesh State. He also disclosed the heirs of deceased sisters of K. Aruna. According to him the petitioners No. 1 and 2 are represent Late Laxmamma, the Respondent No.1 Smt. Nagalaxmi represented Late Neelamma, the Petitioners No.3 to 6 are represents Late Parvathamma, the petitioner No. 9 represent Late Parvathi. The sisters and brothers who are alive are also the petitioners No.7, 8, 10 to 13. Thus, according to him the petitioners are only legal heirs left behind deceased K. Aruna. The Ex.P4 and P17 are death certificates discloses the admitted facts of death of K. Aruna and her husband. Ex.P5 is the GTree.
22. During the course of cross examination, he admitted that, the father of K. Aruna had three wives by name 1) Smt. Pullamma, 2) Padmavathi, 3) Laxmidevi, who is mother of deceased and him. It is admitted that, Petitioner 1 and 2 are children of second wife Smt. Padmavati. But, in the petition, his chief affidavit and in O.S.No.8985/2014 Ex.P5 it is disclosed contrary as petitioners No.1 and 2 are daughters of late Lasmamma, i.e., one of the sister of late K. Aruna. He clearly and unequivocally admitted as "It is true that, Smt. Laxmamma, Neelamma, Parvathi, Shivamma, K.Aruna, Narayanaswamy, Smt. Parvathamma, Mallikarjuna, Smt. Sarojamma, Smt. Leelavathi and S.R. Venkatsh (himself) are alone the children of third wife Late Laxmidevi". So for as his testimony in respect of sisters and brothers of deceased K. Aruna is remained unchallenged and such admitted facts is clearly supported by Genealogical tree except the wrong mentioned supra.
23. The R.w.1 during her cross examination, admitted the death of her mother by name Smt. Neelamma, when she was seven years old. The Respondent No.2 admittedly the daughter of Respondent No.1. Thus, the relationship of the petitioners and Respondent No.1 to the deceased K. Aruna is clearly established and it appears that there is no dispute about the same. At the cost of repetition, it is mention here O.S.No.8985/2014 that, Late Aruna K admittedly died issueless and her husband is predeceased to her.
24. Undisputedly, the deceased K. Aruna is a female Hindu. In such of the circumstances, subject to the defence set up by the respondent No. 2 naturally section 15 and 16 of the Hindu Succession Act is applicable to succeed to the estate of deceased K. Aruna. Therefore, it is necessary to extract the said legal provisions : Section 15. General rules of succession in the case of female Hindus : (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16
a) first, upon the sons and daughters (including the children of any pre deceased son or daughter) and the husband ;
b) secondly, upon the heirs of the husband;
c) thirdly, upon the mother and father;
d) fourthly upon the heirs of the father; and
e) lastly, upon the heirs of the mother.
O.S.No.8985/2014 (2) Notwithstanding anything contained in subsection (1)
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein but upon the heirs of the father ; and
(b) any property inherited by a female Hindu from her husband or from her father in law shall devolve, in the absence of any son or daughter of the deceased ((including the children of any pre deceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein but upon the heirs of the husband ;
Now, it is also necessary to extract the provisions of section 16 for the determination of the claim of the petitioners.
Section 16. Order of succession and manner of distribution among heirs of a female Hindu The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate's property among those heirs shall take place, according to the following rules, namely: Rule 1. Among the heirs specified in sub section (1) of section 15, those in one entry O.S.No.8985/2014 shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.
Rule 2. If any son or daughter of the intestate had predeceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death. Rule 3. The devoltion of the property of the intestate on the heirs referred to in clause (b),
25. On going through the provisions extracted above, it is crystal clear that, the plaintiffs No.1 to 13 and respondent No.1 being the legal heirs of the father and the mother of deceased K. Aruna entitled to succeed to her; only in case, the first, second, third category of heirs as mentioned in Section 15 is not alive. No doubt, from the evidence placed by the plaintiffs and respondent No.1, there is no heirs falling under Section 15 (1) (a). Admittedly, late K.Aruna had a husband by name Venugopal, who died on 03.12.1973 in Andra Pradesh as evident by Ex.P.17. If it is so, the heirs of said Venugopal are preferably entitled to succeed to the estate of his wife O.S.No.8985/2014 i.e., deceased K. Aruna as per Section 15(1)(b). Now, we have to seen Section 8 of Hindu Succession Act. As per Section 8 of Hindu Succession Act, there are 4 types of heirs of husband of deceased are mentioned i.e., Clause
- I, Clause - II, agnates and cognates. If they are not alive, then only the heirs of the father and the mother of K.Aruna i.e., the present petitioners and respondent No.1 are entitled. However, there is no whisper about the heirs of deceased husband of K. Aruna alive or not either in the petition or in the evidence of either sides. In such of the circumstances, I am of the considered opinion that the plaintiffs are failed to established that no heirs of husband of K. Aruna are alive. When they are not discloses anything about the heirs of the husband alive or not, certainly the claim of the plaintiffs is in ambiguity and they are not entitled to succeed to the estate of late K. Aruna in view of settled principles of law of succession laid down under Section 15 and 16 of the Hindu Succession Act. Therefore, the plaintiffs are failed to prove that they are only legal heirs entitled to succeed to O.S.No.8985/2014 the estate of deceased. Accordingly my findings on the issue No.1 is in the affirmative and issue No.2 is in the negative.
26. Issue No.3 : The defendant No.2/Smt. Vishalakshi is admittedly the daughter of respondent No.1/Nagalakshmi. It is the claim of the respondent No.2 that she is adopted daughter on one hand and on other hand, she is foster daughter of deceased K. Aruna. The petitioners are being sisters and brothers of respondent No.1 seriously denied the claim of the respondent No.2 and according to them, there is no any adoption of respondent No.2 as a daughter by deceased K. Aruna during her life time. During the course of cross examination of P.w.1, nothing is elicited to believe that the respondent No.2 is adopted daughter of K. Aruna and all the suggestions to that effect are specifically denied by him. As per settled principles of law the heavy burden is upon the respondent No.2 to prove that she is adopted daughter in view of her adoption by deceased K.Aruna as required under law. In order to substantiate the factum O.S.No.8985/2014 of adoption, the respondent No.2 relied upon the oral testimony of herself and her mother i.e., respondent No.1. I evaluated their evidence. The R.w.1/Nagalakshmi files her affidavit in the form of chief examination. In fact, in one complex sentence at para No.1 of her affidavit she deposed like below : "It is submitted that Smt. Vishalakshi B was my daughter and deceased Smt. K. Aruna was my aunt after the marriage of deceased Smt. K. Aruna after lapse of six months her husband was died after deceased Smt. K.Aruna was living lonely and she was approach and request us to get my child by way of adoption we are both husband and wife was given consent and decided to arrange ceremony of adoption function and fulfill all customary mode and handed over our child at the age of 3 to 4 years to the deceased Smt. K. Aruna and thereafter deceased Smt. K. Aruna only the mother of Smt. B. Vishalakshi". Further in para 3, it is stated that the respondent No.2 is adopted daughter of Smt. K. Aruna who had adopted at the age of 3 to 4 years child by virtue of customary mode before the elders of family members with the free consent obtained by the father and mother of the Smt. B. Vishalakshi and adopted the child by following costumes like pooja, homa and havana from that day the adopted O.S.No.8985/2014 daughter was looked out and taking care of brought up by the deceased Smt. K. Aruna.
27. In the cross examination, the R.w.1 deposed that she did not know the contents of her chief examination. In further cross examination, she deposed that K.Aruna do not given request in writing to give her daughter in adoption. It is deposed that "she did not know when K. Aruna requested her to give her daughter in adoption". Contrary to her chief examination, now it is voluntarily stated that when her daughter was given in adoption, by that time she was aged about two and half years. It is material to extract her own testimony as under : "There was a written adoption during that period, said adoption deed was executed by Karnool of Andhra Pradesh. I am not in possession of copy of the said document. A person who was working along with her husband was present at the time of execution of the said document, I do not know his name. The pooja, religious formalities were performed at Karnool. We were not have invited our relatives in the said pooja. No photographs were taken in respect of that pooja. No card was printed of adoption ceremony. I do not remember date of performing the said pooja. It is false to suggest that the my daughter Vishalakshi.B was O.S.No.8985/2014 not given in adoption to Aruna and the said Aruna never adopted her as daughter". During further cross examination, the R.w.1 deposed that her husband by name B. Ramakrishna Choudary is alive. He is a material witness to speak about adoption. However, he is not examined. Such being the facts on record, the testimony of R.w.1 is under ambiguity and her testimony appears to be self surviving interested to deposed in favour of her daughter's claim. It is material to note that, no where in the testimony of R.w.1, it is whisper that the respondent No.2 is a foster daughter of deceased K. Aruna.
28. R.w.2/Vishalakshi has filed her affidavit wherein, it is stated that, she is the adopted daughter of K. Aruna. According to her, the respondent No.1 i.e., her biological mother being the daughter of a sisters of late K.Aruna had taken her as adopted daughter/foster daughter when she was 3 to 4 years child and subsequent to that she grown up under the care and custody of deceased K. Aruna.
O.S.No.8985/2014
29. During the course of cross examination, the R.w.2 deposed as under : " I do not know on which date deceased K. Aruna took me as a foster daughter. There was document with my mother as regards K. Aruna took me as a foster daughter, but plaintiff No.8 Narayanaswamy had taken away said document. I have not seen said document".
Thus, looking to the entire testimony of R.w.2, she is not firm about her claim of adopted daughter of K. Aruna. On one hand, she claimed adopted daughter and on the other hand, she claim as foster daughter. To prove either one of the same except relied upon her mother's sole testimony not examined her father or anybody. She is not produced her SSLC marks card and her marriage invitation though it was printed as per her own testimony. Even, no efforts is made to secure the material document in respect to show adoption or foster daughter though she admitted it was exist.
30. In support of oral testimony of R.w.1 and R.w.2 the respondent has relied upon some documents to show that she is adopted/foster daughter of late K. O.S.No.8985/2014 Aruna. The Ex.D1 is the ration card stands in the name of K. Aruna. Looking to the back side of the same, the name of R.w.1 appears, but it is not discloses her relationship with K. Aruna as the case made out by respondents. The said ration card was in operation from 2001 to 2006. The Ex.D2 is survivorship certificate issued by Tahasildhar, Yelahanka. As admitted by R.w.2 herself, it was issued by the learned Tahasildhar as per her statement. Therefore, the Ex.D2 is not an admissible document to prove the adoption/foster daughter. The Ex.D3 is a premium receipt issued by the LIC wherein, it is mentioned as B.K. Vishalakshi as a nominee and her relationship mentioned as adopted daughter. The said receipt was issued by LIC on 30.08.1990. But, the policy number mentioned in Ex.D3 is not the subject matter of movable properties under the schedule of petition. The policy copy of the same is not produced for the scrutiny of this court. The Ex.D4 is the certificate issued by the Government Higher primary School to show that the name of R.w.2 mentioned as B. Vishalakshi as daughter O.S.No.8985/2014 of K. Aruna in the said school. However, the Ex.D4 further discloses that the records in the registrar was torned. When there is no original the certificate issued like so is objectionable and it requires further proof but not made any effort. The Ex.D5 is a Form No.3 for caste declaration filed by deceased K. Aruna and respondent No.2, wherein K.Aruna shown as mother of R.w.2. The Ex.D6 is the gas connection certificate issued in the name of respondent No.2. Ex.D7 and D8 are the receipts for having consume the gas. The Ex.D9 is the election identity card of Ramanna Marathi, who is the husband of the respondent No.2. The Ex.D10 is the Shamala Reddy School of Nursing, wherein it was certified that Aruna signed a declaration form in the place of parents for respondent No.2 during her admission to the said college in the year 2004. The Ex.D11 a cheque issued in the name of K. Aruna. The Ex.D12 is a LIC premium receipts in the name deceased K. Aruna wherein Vishalakshi shown as daughter in the year 1998. The Ex.D13 is the receipt issued by the respondent No.2 and her husband O.S.No.8985/2014 jointly for having receipt of Rs.5,000/ from the Medical Superintendent of ESI Hospital, Indira Nagar, Bengaluru. The Ex.D14 is the entry pass of K. Aruna. Ex.D15 is the prescription chit. The Ex.D16 and D17 are the bills for purchase of medicine. Ex.D18 is the Ambulance service taken on 23.08.2010 by the husband of the respondent No.2 to transport the dead body of K. Aruna from hospital of Bangalore to the Andhra Pradesh. The Ex.D19 is a joint letter issued by Coworkers certifying that the respondent No.2 is a foster daughter of late K. Aruna and she used to residing in the house of the deceased. The Ex.D20, D21 and D22 are the birth certificates of the children of respondent No.2. The Ex.D23 is the G.tree of deceased K. Aruna issued by the Revenue Inspector, Bengaluru North. It is disclosing that deceased has got the adopted daughter/foster daughter. Admittedly, it is issued on the statement of respondent No.2. The Ex.D24 is the identity card of dead body of K. Aruna issued by Bowring Hospital. The Ex.D25 and D26 are the receipts issued by the same hospital. The Ex.D27 is a letter dated O.S.No.8985/2014 02.04.2011 of the Medical Superintendent of ESI hospital, Bengaluru calling upon the respondent No.2 to vacate the quarters which stands in the name of deceased K. Aruna. Ex.D29, D31, D33, D34 and D35 are the copy of complaint given to police by respondent No.2 against Narayanswamy and others on different dates. No where, in the said complaint she mentioned that "she is the adopted daughter of K. Aruna, but it is mentioned as foster daughter". The Ex.D30 and D32 are the police receipts for having received complaint from the respondent No.2.
31. Looking from the entire oral and documentary evidence, it is crystal clear that the respondent No.2 wanted to establishes that the adopted daughter on one hand and also try to establishes that she is foster daughter of deceased K. Aruna. In the context of her claim of adopted daughter, I have to refer the relevant provisions of the Hindu Adoption and Maintenance Act, 1956. As per Section 7 of the said Act "any male hindu who is of sound mind and is not minor as the capacity to O.S.No.8985/2014 take a son or daughter in adoption only with the consent of his wife. Section 8 of the said act speaks that a female hindu who is of sound mind and not a minor even if she is widow has also the capacity to take a son or daughter in adoption. Under this provisions certainly the deceased K. Aruna was being a widow having capacity to take a daughter in adoption. However, as per Section 11 of the said Act mandates about the proof of giving and taking the child in adoption to show the intention of transfer of child from the biological parents family to the adoptive family. At this juncture, it is necessary to seen the material provision i.e., Section 9 of the said Act applicable to the present facts and circumstances of the case. The Section 9(1) and (2) of said Act speaks like below : Persons capable of giving in adoption. (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of [subsection (3) and subsection (4)], the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the O.S.No.8985/2014 consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
From the above statutory provision, it is crystal clear that the father if alive mandatorily he alone, has the right to give child in adoption with consent of his wife. In the present case, the evidence on record on the side of respondent clearly discloses that Sri. B.Ramakrishna Choudary being the husband of respondent No.1 and the biological father of respondent No.2 is still alive. Accordingly, to prove the giving of his child/ respondent No.2 in adoption to the K. Aruna, the best person is said B. Ramakrishna Choudary. The R.w.1 is not the GPA or SPA of her husband. The testimony of B. Ramakrishna Choudary is very much needed and subjected to cross examination in order to establish the factum of adoption. Unfortunately, he is not examined by the respondent and no reason is forthcoming for not examined him. Even, the admitted written document to show the adoption is also not placed for the scrutiny of this court. The stray entry O.S.No.8985/2014 in one or two documents as daughter or not the relevant proof of factum of adoption. The Ex.P14 is the insurance policy not at all mention any name as nominee. The Ex.P15 is the another insurance policy but the name of nominee mentioned as A. Ramesh Babu, who is near to the name of petitioner No.5. The Ex.P8 and P9 though name of Nidhi and Jaishnavi is mentioned as nominee but the same is in writing and doubtful. The Ex.P11 is mentioned by name Nidhi as nominee but the present case is not the claim on behalf of said Nidhi and she is not party to the present proceedings.
32. Thus, I am of the considered opinion that, there is no concrete evidence about proof of giving and taking with consent of parents of respondent No.2 by performing the customary ceremony of adoption. Thus, there is lacuna in the evidence to arrive at a conclusion that the respondent No.2 is the adopted daughter of late K. Aruna within the corner of legal requirements.
33. Of course, to support the oral evidence of R.w.1 and R.w.2 some of the document discloses that the O.S.No.8985/2014 respondent No.2 is a daughter. The daughter may be an adopted daughter or a foster daughter. In the absence of conclusive proof regarding giving and taking the respondent No.2 in adoption, the documentary evidence which are speaks the respondent No.2 as a daughter of K. Aruna, certainly goes to inference that the respondent No.2 may be a foster daughter of K. Aruna and it appears to be she lived along with deceased all the while. With these discussions, it is my considered opinion that the respondent No.2 able to establish that she is a foster daughter but failed to prove that she is an adopted daughter of deceased K. Aruna. Hence, my finding on issue No.3 is in the negative.
34. Issue No.4 : It is the specific case of the respondent No.2 that deceased K. Aruna was not died intestate, but she was died testate leaving behind her a will bequeathing her estate in favour of her and her children and on the basis of the same also she claimed succession certificate for the schedule movable properties. In fact, there is no whisper in the objection of O.S.No.8985/2014 respondent No.1 about will as contended by respondent No.2. Even, no where in the documentary evidence placed by the respondent No.2 at Ex.D29 to D35, it is discloses about any will left behind by K. Aruna. The respondent No.2 in her written statement contended to propound a will dated 18.07.2006 executed by Smt. K. Aruna. In order to substantiate the same, she has produced the said will it is marked as Ex.D28. The said will was written in a long note book of 300 page. At page No.8 and 9 the said will appears to be written and signed by K.Aruna. In order to prove the same, the attesting witness G. Shivananda entered into the witness box as R.w.3. I evaluated his oral testimony.
35. R.w.3/Shivananda.G has deposed in his chief examination that K.Aruna was executed will dated 18.07.2006 in her own handwriting. He deposed that the will executed by her in his presence and signed to the same and then he signed to the will as a witness. Looking to the will/Ex.P28, he identified his signature as Ex.D28(a) and also identify the signature of K.Aruna as O.S.No.8985/2014 Ex.D28(b). In the result of his cross examination, it is elicited that he was also signed on Ex.D19 and according to him, in Ex.D19 K.Aruna has stated whatever belongs to her goes to Vishalakshi. It is deposed that Ex.D28 was written in the official quarters belonged to K. Aruna at about 4 p.m. He signed in between 4.15 to 4.30 p.m. He is not related to the deceased. However, he admitted that the husband of respondent No.2 by name Ramanna Marathi is his friend and is served under him. He denied the suggestion that Ex.D28 is not written by K.Aruna and she was not at all signed on it.
36. Of course, by examining R.w.3, the respondent No.2 prove the execution of Ex.D28/will. Now, the point for my consideration is whether the Ex.D28 is valid will. Accordingly, I carefully perused the same. The Ex.D28 bears the signature of testator i.e., K.Aruna as per Ex.D28(b) and a signature of only witness i.e., R.w.3 as attesting witness as Ex.D28(a). Except these two signatures, it is not bear signature of any other person. In this back drop, it is necessary to mentioned here O.S.No.8985/2014 under about the legal requirements for a will to be valid and to call it as a legally binding document.
1) It must be in writing.
2) The person who made it must have signed and dated it.
3) Two adult witness must have signed it as attesting witness.
All the above requirements, if complied and by examining one of the attesting witness the will said to have been proved and legally binding document. However, on careful scrutiny of the Ex.D28, it is clearly goes to show the 3rd requirement is not at all complied. It mean to say the Ex.D28 consist only one adult witness signature as attesting witness i.e., R.w.3. Accordingly, the Ex.D28 is lacking with signature of one more attesting witness to comply the legal requirement. As such, in my opinion the Ex.D28 is invalid document and not legally binding document. Therefore, it cannot be possible to arrive at conclusion that the deceased K. Aruna legally bequeathed her estate by executing a valid will as per Ex.D28. So, the Ex.D28 is not come to the aid of respondent No.2 to claim O.S.No.8985/2014 the right on the basis of said invalid will. Hence, I am of the view that the respondent No.2 failed to prove the valid will dated 18.07.2006 as per Ex.D28 executed by deceased Smt. K. Aruna in her favour and on the basis of which, she is entitled in the estate of deceased K. Aruna as the case made out. Hence, issue No.4 is answered in the negative.
37. Issue No.5 : As I have already pointed out while discussing issues No.1 and 2, the plaintiffs though proved that they are the legal heirs of parents of deceased K. Aruna, but failed to prove that they are entitled to succeed to the estate of the deceased in view of suppression of material facts regarding information about the Clause - I and Clause - II heirs of the husband of the deceased to claim the right over the petition schedule property. Therefore, the plaintiffs are not entitled for the succession certificate. Hence, my finding on issue No.5 is in the negative.
38. Issue No.6 : The respondent No.2 has made out counter claim of succession certificate in her favour.
O.S.No.8985/2014 While discussing the issue No.3, I clearly held that the respondent No.2 failed to establish that she is adopted daughter of Smt. K. Aruna. She is also failed to establish a valid will executed by deceased K. Aruna and she died testate in view of my finding on issue No.4. However, on the basis of oral testimony of R.w.2 coupled with documentary evidence relied upon by respondents, I arrived at conclusion that the respondent No.2 is a foster daughter and she lived with deceased K. Aruna. Now, the point for my consideration is whether a foster daughter is entitled for succession certificate. My answer to the same is "no". Because, a foster daughter is not entitled an inheritance right under law. As per Section 15 and 16 of Hindu Succession Act, the heirs preferably mentioned are only entitled to succeed to the estate of female hindu. Since, no where in the petition or in the testimony of P.w.1 or any other witness, it is whisper that no legal heirs of the husband of K.Aruna is alive, and the same is kept under dark, the petitioners are also not entitled for succession certificate. In view of these O.S.No.8985/2014 discussions and findings on all the issues, I proceed to pass the following : ORDER The suit of the plaintiffs/petitioners is hereby dismissed. The counter claim of the defendant No.2/respondent No.2 is also dismissed.
Having regard to the facts and circumstances of the case on hand, no order as to cost.
(Typed by me in my laptop and then transferred to the computer of the office by Stenographer corrected and then pronounced by me in the open court on this the 19 th day of April 2021.) (Somashekar C. Badami) I Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFFS : PW.1 : S. Venkatesh O.S.No.8985/2014 DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS: Ex.P1 : Service confirmation certificate Ex.P2 : Copy of letter Ex.P3 : Reply Ex.P4 : Death certificate Ex.P5 : Genealogy Ex.P6 : Letter Ex.P7 : Intimation Ex.P8 to P11 : Four F.D. receipts Ex.P12 : Letter Ex.P13 : Receipt Ex.P14 & P15 : Two LIC bonds Ex.P.16 : Letter Ex.P.17 : Original death certificate WITNESSES EXAMINED FOR THE DEFENDANTS : DW.1 : Smt. Nagalakshmi DW.2 : Vishalakshmi DW.3 : Shivananda.G., DOCUMENTS MARKED ON BEHALF OF THE DEFENDANTS: Ex.D1 : Original Ration card Ex.D2 : Survivor certificate Ex.D3 : Acceptance letter Exs.D4 : Certificate Exs.D5 : Caste Certificate O.S.No.8985/2014 Exs.D6 : Receipt Ex.D7& D8 : Bills Ex.D9 : Identity Card Ex.D10 : Certificate Ex.D11 : Cheque dated 30.03.2011 Ex.D12 : LIC Ex.D13 : Receipt dated 23.08.2010 Ex.D14 : Entry pass Exs.D15 : Prescription chit Ex.D16 : Receipt Ex.D17 : Receipt Ex.D18 : Bill Ex.D19 : Statement Ex.D20 : Birth Certificate Ex.D21 : Birth certificate Ex.D22 : Birth Certificate Ex.D23 : Genealogical tree Ex.D24 : Identity Card Ex.D25 : Death report Ex.D26 : Cause of death certificate Ex.D27 : Certificate Ex.D28 : Will (Note book) Ex.D29 : Complaint dated 27.12.2010 Ex.D30 : Endorsement in Ex.R29 Ex.D31 : Copy of the complaint Ex.D32 : Endorsement Ex.D33 : Copy of the complaint Ex.D34 : Copy of the Director General of police dated 08.06.2011 O.S.No.8985/2014 Ex.D35 : Copy of the Director General of Police dated 28.06.2014 (Somashekar C. Badami) I Addl.City Civil & Sessions Judge, Bengaluru.