Bangalore District Court
Umesh T vs Jagadish T on 20 February, 2025
1 O.S.No.3424/2020
KABC010126822020
Presented on : 05-08-2020
Registered on : 05-08-2020
Decided on : 20-02-2025
Duration : 04 years, 06 months, 15 days
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF LXXV ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH.76) AT: BENGALURU
PRESENT: Sri. SHIVANAND MARUTI JIPARE,
B.A., LL.B. (Spl.)
LXXV Addl. City Civil and Sessions
Judge, Bengaluru
Dated this the 20th day of February, 2025
ORIGINAL SUIT No.3424/2020
PLAINTIFF: 1. Sri.T.Umesh,
S/o. Late Thammanna,
Aged about 52 years,
Residing at Premises bearing
No.7 and 8,
Prashanthanagar,
ISRO Layout,
Bengaluru - 560 078.
2 O.S.No.3424/2020
(By Sri.M.N.Desai., Advocate.)
:VERSUS:
DEFENDANTS: 1. Sri.T.Jagadish,
S/o. Late Thammanna,
Aged about 50 years,
Residing at No.194,
07th Main,
Srinivasanagar,
BSK 03rd Stage,
Bengaluru - 560 050.
2. Smt. Bhagyalakshmi,
D/o. Late Thammanna,
W/o. Sri.H. Sukhanand,
Aged about 58 years,
No.103, 01st Floor,
01st Main, 04th Block,
03rd Phase,
BSK 03rd Stage,
Bengaluru - 560 085.
3. Smt.T. Manjula Devi,
D/o. Late Thammanna
W/o. Sri.C.Vivekaranjan,
Aged about 56 years,
No.89, 05th Cross,
Malleshwaram Circle,
Bengaluru - 560 003.
(By Sri. Harinath., Advocate for D-1.)
(By Sri.H.K.Pavan, Advocate for D-3.)
(Defendant No.2- Exparte.)
**********
3 O.S.No.3424/2020
Date of Institution of the suit. 05.08.2020
Suit for Partition and
Nature of the suit Separate Possession
and Mesne Profits
Date of commencement of
17.07.2023
recording of evidence
Date on which the Judgment
20.02.2025
was pronounced
Years Months Days
Total Duration 04 06 15
Digitally signed by
SHIVANAND SHIVANAND MARUTI
MARUTI JIPARE
Date: 2025.02.20
JIPARE 13:49:33 +0530
(SHIVANAND MARUTI JIPARE)
LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU.
************
JUDGMENT
The plaintiff has filed this suit against the defendants seeking the reliefs of partition and separate possession of 4 O.S.No.3424/2020 1/4th share in suit schedule property and mesne profits, with costs.
2. The brief facts averred in the plaint are as follows:
That the plaintiff is the joint owner of the suit schedule property i.e. bearing No.194, situated at 07 th Main, Srinivasanagar, BSK III stage, Bengaluru, consisting of ground and first floor, East to West: 56+54/2 feet, North to South: 30+32/2 feet. The Late Thammanna and Smt.K.Padmavathi had two sons and two daughters i.e. the plaintiff and defendants. The defendant No.1 is the brother and defendant No.2 and 3 are the sisters of plaintiff. The said Thammanna is died intestate on 05.02.2010 leaving behind the plaintiff and the defendants and his wife Smt.K.Padmavathi as his legal heirs to succeed his estate left behind by him. So also Smt.K.Padmavathi is died intestate on 01.02.2020 leaving behind the plaintiff and the defendants as her legal heirs to succeed her estate left behind by her. In this connection Smt.K.Padmavathi, is the absolute owner in 5 O.S.No.3424/2020 possession and enjoyment of the suit schedule property, having acquired the title to the schedule property under the re-conveyance scheme formulated by the Bangalore Development Authority. The Bangalore Development Authority has executed absolute sale deed dated:
18.03.1996 in her favour. The plaintiff is residing along with his family in the address mentioned in the cause title of the plaint. The defendant No.1 is residing along with his family members in the first floor of the suit premises.
Smt.K.Padmavathi during her life stay in the ground of the suit premises separately. On some of the occasions, she used to stay with plaintiff for few weeks. The plaintiff is the elder person in the family. Smt.K.Padmavathi is having gold ornaments to the extent of 2 K.G. and silver ornaments and articles to the extent of 10 K.G. She used to keep all the gold and silver articles, Bank pass book, fixed deposit receipts and original title deeds pertaining to the suit premises in Almira installed at suit premises. Immediately after the death of K.Padmavathi, the defendant No.1 has broken the lock of the Almira and 6 O.S.No.3424/2020 taken away all the gold and silver articles together with all original documents and Bank pass books and FD receipts. Now all originals documents pertaining to suit premises are in the custody of defendant No.1. The plaintiff has approached the defendant No.1 and requested for details of Bank account and accountability of gold and silver ornaments, but he has refused to furnish the details to the plaintiff. Immediately, plaintiff had demanded for partition of the suit schedule property by metes and bounds and allots his share in the suit schedule property. The defendant No.1 has refused to divide the property. Hence, he has approached the jurisdictional Police with an intention to lodge a complaint, but the Police have informed the plaintiff that the dispute is in civil nature and advised to approach the Civil Court. Further, after the death of K.Padmavathi, the plaintiff and the defendants are entitled for 1/4 th share each in the suit schedule property, but the defendant No.1 alone is in enjoyment of the suit schedule property by collecting the rents from the tenants by showing 7 O.S.No.3424/2020 indifference amount with an intention to knock of plaintiff's legitimate share in the suit schedule property and also made false representation to the concerned department by suppressing the real and true fact and tried to set up documents in his name. As a matter of fact, the defendant No.1 alone has no absolute right, title or interest or alienating / encumbering and sale deeds to deprive the plaintiff's legitimate share over the suit schedule property. Hence, the plaintiff has filed the present suit seeking the relief that declaring that he is entitled for 1/4th share in suit schedule property and for mesne profits. The cause of action for the suit is arisen on 01.02.2020, and on 20.02.2020 and subsequently. Hence, this suit.
3. In pursuance of the suit summons, defendant No.1 and 3 have appeared through their learned Counsels. The defendant No.2 is remained absent and hence, she is placed exparte. The defendant No.1 and 3 have filed written statement.
8 O.S.No.3424/2020
4. The defendant No.3 has filed written statement and partly denied the plaint averments in toto. The defendant No.3 admits that relationship and Smt.K.Padmavathi having acquired the title of residential property under sale deed on 18.03.1996 and her mother is having gold ornaments to the extent of 2 K.G. and silver ornaments and articles to the extent of 10 K.G, Bank passbook, fixed deposit receipts and original title deeds pertaining to the suit premises in the Almera installed at the suit premises. The defendant No.3 admits that the defendant No.1 is in enjoyment of the suit schedule property by collecting the rents by showing indifference, amount to divert the family funds, and also by suppressing the real and true fact and he tried to set up documents in his name with an intention to knock off the suit schedule property. The defendant No.3 contends that the defendant No.1 is liable to render proper account for the rent from the suit premises and pay the plaintiff his share out of the said rent by way of mesne profits and 9 O.S.No.3424/2020 defendants are also entitled to equal share in the suit schedule property. The suit schedule property being joint family property, averments of the plaintiff that himself and defendant No.1 being male members are only entitled to a share in the suit schedule property is absolutely false and legally incorrect, the defendant No.3 being the daughter is legally entitled to a share in the suit schedule property and there is no law that prohibits such inheritance. Hence, the defendant No.3 prays to decree the suit by allotting the share equally.
5. The defendant No.1 has filed written statement and denied the plaint averments in toto. The defendant No.1 contends that, the suit of the plaintiff is not maintainable. The plaintiff has suppressed material facts and he has not approached with clean hands. The defendant No.1 contends that the plaintiff never approach defendant No.1 with regard to partition of the suit schedule property. The entire suit schedule property has not been let out to any of the tenants as alleged by 10 O.S.No.3424/2020 the plaintiff. The defendant No.1 used to reside in the suit schedule property along with his mother and she had executed a registered Will dated: 20.05.2000 while she was hail and healthy and in the said Will she had equitably distributed her self acquired properties to all her children without any ill-will equally amongst her children with pure intention lest her children should not quarrel over her assets after her demise. In the said Will she has categorically explained lucidly and clearly as to how her properties be distributed amongst her children. In the said Will Smt.K.Padmavathi had also allotted two sites and also provided funds to the plaintiff to put up construction of residential house. Now the plaintiff is enjoying the same property as being bequeathed to him. Since the defendant No.1 is enjoying the properties bequeathed to him under the registered Will, he need not give accounts to anybody much less to the plaintiff, apart from that all the fixed deposits of Late K.Padmavathi were nominated in the name of the defendant No.1 and as per the Will he has acted upon. The defendant No.1 denies 11 O.S.No.3424/2020 the 1/4th share of the plaintiff in its entirety as his 1/4 th share has already been taken out by the plaintiff in the year, 2002 itself by way of registered gift deed through his father the main source of which is from Smt.K.Padmavathi. Further, Late K.Padamavathi had lucidly explained in unequivocal terms as to how she got the property bearing site No.7 and 8 situated at Bikasipura, Uttarahalli Hobli, Bengaluru South Taluk now it is called Prashanth Nagar, ISRO Layout, in para 3 of the Will and schedule 'B' annexed thereto. Since, the plaintiff was not in good terms with his parents, he pressurized his mother Late K.Padmavathi to execute registered conveyance deed immediately, due to his pressure tactics, Late K.Padmavathi was compelled to execute registered conveyance deed in favour of her husband Sri.Thammanna, within 7 months from the date of registering the Will on 07.12.2000. But, the plaintiff did not stop his pressure there, he stopped talking to his parents, and visiting them regularly, due to his act, they finally yielded to the plaintiff and finally defendants 12 O.S.No.3424/2020 father executed a registered gift deed dated: 21.01.2002 in favour of the plaintiff in order to see that the family and children remain happy intact. After that, his mother K.Padmavathi had bequeathed sites to her two daughters which being mentioned in the same Will at para 4 'Schedule-C' to Smt. Bhagyalakshmi and para 5 'Schedule-D' to Smt. Manjula Devi and finally to defendant No.1 at para 2 'Schedule -A.' The Will also recites as how the executrix of the WILL had equally shared all her movable and immovable properties vested in her. That apart, the defendant No.1 specifically states his mother at para 3 that, apart from giving property to plaintiff she had also given him substantial sum of money to construct the house through her Bank account and also by way of cash. Therefore, when the plaintiff has taken out his share of money and property there is no question of further partition of his 1/4 th share now by way of this suit arise at all. The defendant No.1 never tried to alienate or enter in to any type of sale agreements with anybody as alleged by the plaintiff. The plaintiff is very 13 O.S.No.3424/2020 clever in hiding the material facts and at the same time, he reserves his right to incorporate any other property that may crop up in future. Further, the plaintiff never demand for partition, but he tried his level best to intrude into the house of the defendant No.1 and demanded keys of the Almirah during the obseque ceremonies, at that time, the defendant No.1 along with other defendants effectively stalled his attempt of threatening to the other members of the family. Since the plaintiff has not incorporated all the immovable and movable properties left by K.Padmavathi, the suit of the plaintiff itself is not maintainable unless all the properties are brought to the notice of this Court in the plaint. The mother of the defendant No.1 had executed a registered Will in his name way back in the year 20.05.2000 and she died on 01.02.2020. In the entire Will K.Padmavathi had bequeathed all her properties equitably to all her children during her life time, she had also gave immovable properties by executing necessary conveyance deed in favour of all her children except the defendant No.1, but 14 O.S.No.3424/2020 he never pressured his parents to register conveyance deed in his favour. Whatever his parents had decided to be given to him had been given to him by way of registered Will to the defendant No.1. Hence, the defendant No.1 prays to dismiss the suit with exemplary costs.
6. On the basis of above pleadings, following Issues have been framed by my learned Predecessor in Office and I have framed Recasted Issues.
ISSUES
1. Whether plaintiff proves that the plaintiff schedule property is a joint family property?
2. Whether plaintiff proves that he has 1/4 th share in the joint family of plaint schedule property?
3. Whether the plaintiff proves that the plaint schedule property is let out to any tenant?
4. Whether plaintiff is entitled for mesne properties?
15 O.S.No.3424/2020
5. Whether the defendant proves that his mother Smt.K.Padmavathi executed a registered in the dated: 20.05.2000 and equitably distributed her self acquired properties to all her children and plaintiff is enjoying the properties as per the WILL?
6. Whether the defendant submits that as per the WILL he is enjoying his share?
7. Whether defendant proves that his father executed registered gift deed dated 21.01.2002 in favour of the plaintiff?
8. Whether plaintiff has paid insufficient court fee as contended by the defendant?
9. Whether the plaintiff is entitled as relief sought for?
10. What order or decree?
RECASTED ISSUES FRAMED ON 19.02.2025.
1. Whether the plaintiff proves that, suit schedule property is joint family property as contended in plaint?
2. Whether the defendant No.1 proves that, his mother Smt.K.Padmavathi has executed registered Will, dated:
20.05.2000 and distributed her self acquired properties to all her children?16 O.S.No.3424/2020
3. Whether defendant No.1 proves that, his father executed gift deed, dated:
21.01.2002 infavour of plaintiff?
4. Whether the Court fee paid is insufficient?
5. Whether the plaintiff is entitled for 1/4th share in suit schedule property?
6. Whether the plaintiff is entitled for mesne profits?
7. Whether the plaintiff is entitled for reliefs as sought?
8. What order or decree?
7. In support of the case, the plaintiff is examined as P.W.1 and got marked 07 documents at Ex.P.1 to Ex.P.7 and closed his side evidence. In rebuttal, the defendant No.1 is examined as D.W.1 and two witness by name Sri.N.Shivaramu S/o.Late Narasimhegowda and Smt.Sudhamani K.N S/o.K.R.Venateshaiah as D.W.2 and D.W.3 and marked 18 documents at Ex.D.1 to Ex.D.18 and closed their side evidence.
17 O.S.No.3424/2020
8. Heard the arguments of both learned Counsels of both parties at length and perused the materials on record. The defendant No.1 has filed written arguments.
9. My findings on the above Recasted Issues are as under:
Recasted Issue No.1 : In the Negative Recasted Issue No.2 : In the Affirmative Recasted Issue No.3 : In the Affirmative Recasted Issue No.5 : In the Negative Recasted Issue No.6 : In the Negative Recasted Issue No.4 : In the Negative Recasted Issue No.7 : In the Negative Recasted Issue No.8 : As per the final order for the following:
REASONS
10. RECASTED ISSUES NO.1 TO 3, 5 AND 6:
These Issues are interrelated to each other and involve common appreciation of facts and evidence. Hence, to avoid repetition of facts, I have taken both these Issues together for common consideration.18 O.S.No.3424/2020
11. The plaintiff has asserted that he is the joint owner of the suit schedule property. Smt.K.Padmavathi is the absolute owner in possession and enjoyment of the suit schedule property, having acquired the title to the suit schedule property under the re-conveyance scheme formulated by the Bangalore Development Authority. The Bangalore Development Authority has executed absolute sale deed dated: 18.03.1996 in her favour. After the death of Smt.K.Padmavathi, plaintiff had demanded for partition of the suit schedule property by metes and bounds and allots his share in the suit schedule property. The defendant No.1 has refused to divide the property.
12. Per contra, the defendant No.3 has contended that, the defendant No.1 is liable to render proper account for the rent from the suit premises and pay to the plaintiff his share out of the said rent by way of mesne profits and defendants are also entitled to equal share in the suit schedule property.
19 O.S.No.3424/2020
13. The defendant No.1 has contended that, he used to reside in the suit schedule property along with his mother- Smt.K.Padmavathi and she had executed a registered Will dated: 20.05.2000 while she was hail and healthy and in the said Will she had equitably distributed her self acquired properties to all her children without any ill-will equally amongst her children with pure intention lest her children should not quarrel over her assets after her demise. In the said Will she has categorically explained lucidly and clearly as to how her properties be distributed amongst her children. In the said Will Smt.K.Padmavathi had also allotted two sites and also provided funds to the plaintiff to put up construction of residential house. Since the defendant No.1 is enjoying the properties bequeathed to him under the registered Will, he need not give accounts to anybody much less to the plaintiff. The plaintiff in its entirety as his 1/4th share has already been taken out by him in the year, 2002 itself by way of registered gift deed through his father. The mother of the defendant No.1 had 20 O.S.No.3424/2020 executed a registered Will in his name way back in the year 20.05.2000 and she died on 01.02.2020. In the entire Will K.Padmavathi had bequeathed all her properties equitably to all her children during her life time, she had also gave immovable properties by executing necessary conveyance deed in favour of all her children except the defendant No.1, but he never pressured his parents to register conveyance deed in his favour.
14. In order to substantiate the contention, the plaintiff has filed an affidavit as examination-in-chief and he is examined as P.W.1. The P.W.1 has reiterated the contents of plaint. The defendant No.1 has filed an affidavit as examination-in-chief and he is examined as D.W.1. The D.W.1 has reiterated the contents of written statement. The defendant No.1 has adduced evidence of witness by name Sri.N.Shivaramu S/o.Late Narasimhegowda and Smt.Sudhamani K.N S/o.K.R.Venateshaiah as D.W.2 and D.W.3. 21 O.S.No.3424/2020
15. The plaintiff has relied on documentary evidence at Ex.P.1 to Ex.P.7.
16. The defendant No.1 has relied on documentary evidence at Ex.D.1 to Ex.D.18.
17. The plaintiff has relied on Ex.P.1 - Death certificate of Late Padmavathi K, Ex.P.2 - Death certificate of Late Thammanna T. M, Ex.P.3 - Khatha certificate dated: 29.07.2020, Ex.P.4 - Khatha extract issued on 29.07.2020. Ex.P.5- Certified copy of absolute sale deed dated: 18.03.1996, Ex.P.6 - Property tax receipt of the year 2020-21 issued by B.B.M.P - Revenue Department and Ex.P.7 - Certified copy of absolute sale deed dated:
08.09.2003.
18. The defendant No.1 has relied on Ex.D.1 -
Copy of gift deed dated: 21.01.2002, Ex.D.2 - Khatha certificate issued by B.B.M.P-Revenue Department dated:
01.06.2020, Ex.D.3 - Khatha extract issued by B.B.M.P-
Revenue Department dated: 01.06.2020, Ex.D.4 - Uttara 22 O.S.No.3424/2020 pathra issued by B.B.M.P on 29.05.2020, Ex.D.5 to Ex.D.7
- Property tax paid receipts, Ex.D.8 - Certified copy of sale deed dated: 10.03.1995, Ex.D.9 - Endorsement issued by B.B.M.P on 07.02.2024, Ex.D.10 and 11 - Property tax paid receipts, Ex.D.12 - I.D. card of defendant No.1, Ex.D.13 and 14 - Discharge summaries issued by Apollo Hospital, Ex.D.15 - Deposit receipt issued by Apollo Hospital, Ex.D.16- Patient bill, Ex.D.17 - Certified copy of absolute sale deed dated: 07.12.2000, Ex.D.18 - Certified copy of Will dated: 20.05.2000 and Ex.D.18(a) and 18(b) - Signatures.
19. The learned Counsel Sri.M.N.Desai, appearing for plaintiff has vehemently argued that the plaintiff is the joint owner of the suit schedule property and Smt.K.Padmavathi is the absolute owner in possession and enjoyment of the suit schedule property, having acquired the title to the suit schedule property under the re-conveyance scheme formulated by the Bangalore Development Authority. The Bangalore Development Authority has executed absolute sale deed dated: 23 O.S.No.3424/2020
18.03.1996 in her favour. After the death of Smt.K.Padmavathi, plaintiff had demanded for partition of the suit schedule property by metes and bounds and allots his share in the suit schedule property and the defendant No.1 has refused to divide the property. The learned Counsel Sri.R.Harinath, appearing for defendant No.1 has vehemently argued that the defendant No.1 used to reside in the suit schedule property along with his mother- Smt.K.Padmavathi and she had executed a registered Will dated: 20.05.2000 while she was hail and healthy and in the said Will she had equitably distributed her self acquired properties to all her children without any ill-will equally amongst her children with pure intention lest her children should not quarrel over her assets after her demise. In the said Will she has categorically explained lucidly and clearly as to how her properties be distributed amongst her children and in the said Will Smt.K.Padmavathi had also allotted two sites and also provided funds to the plaintiff to put up construction of residential house. Since the defendant 24 O.S.No.3424/2020 No.1 is enjoying the properties bequeathed to him under the registered Will, he need not give accounts to anybody much less to the plaintiff and the plaintiff in its entirety as his 1/4th share has already been taken out by him in the year, 2002 itself by way of registered gift deed through his father. The mother of the defendant No.1 had executed a registered Will in his name way back in the year 20.05.2000 and in the entire Will K.Padmavathi had bequeathed all her properties equitably to all her children during her life time, she had also gave immovable properties by executing necessary conveyance deed in favour of all her children except the defendant No.1, but he never pressured his parents to register conveyance deed in his favour.
20. The learned Counsel for plaintiff has relied upon following decisions:
1. (2015) 8 Supreme Court Cases 615, in case of Jagdish Chand Sharma -Vs- Narain Singh Saini 25 O.S.No.3424/2020 (Dead), through legal representatives and others.
2. Judgment in Civil Appeal No.7578/2023 passed by Hon'ble Supreme Court of India in case of Leela and Others -Vs- Muruganantham and Others.
3. Judgment in SLP (C) No.23721/2022 passed by Hon'ble Supreme Court of India in case of Chinu Rani Ghosh - Vs - Subhash Ghosh and Others.
I have bestowed my anxious considerations to the principles emerges from these respected decisions.
21. The learned Counsel for defendant No.1 has relied upon following decision:
1. (2021) 16 Supreme Court Cases 543, in case of V. Kalyanaswamy (Dead) by legal representatives and another -Vs- L.Bakthavatsalam (Dead) by legal representatives and others.26 O.S.No.3424/2020
I have bestowed my anxious considerations to the principles emerges from this respected decision.
22. On perusal of Ex.P.1 which shows that, Smt. Padmavathi K is died on 01.02.2020. On perusal of Ex.P.2 which shows that, Thammanna T.M. is died on 05.02.2010. On perusal of Ex.P.3 and 4 which reflect that, the suit schedule property is standing in the name of the defendant No.1. On perusal of Ex.P.5 which shows that, Bangalore Development Authority represented by the Assistant Commissioner, Bengaluru has executed sale deed in favour of Smt. Padmavathi W/o. T.M. Thammanna on 18.03.1996 in respect of suit schedule property. On perusal of Ex.P.7 which shows that, Smt.Vanajamma W/o. Late Sri.Abbaiah Naidu, Sri.A.Madhu S/o.Late Abbaiah Naidu, Sri.A.Ramesh S/o. Late Abbaiah Naidu have executed sale deed on 08.09.2003 in favour of the defendant No.1 in respect of property bearing No.16, CMC Katha No.735, Survey No.81, situated at Chikkakallasandra Village, Uttarahalli Hobli, Bengaluru 27 O.S.No.3424/2020 South Taluk measuring East to West: 40 feet, North to South: 30 feet.
23. On perusal of Ex.D.1 which shows that, Sri.T.M. Thammanna has executed gift deed on 21.01.2002 in favour of plaintiff in respect of site No.7 and 8 in Sy.No.5, CMC Khatha No.539/5/7-8, situated at Bikasipur, Uttarahalli Hobli, Bengaluru South Taluk, Benguluru measuring East to West: 60 feet, North to South: 40 feet. On perusal of Ex.D.2, Ex.D.3 and Ex.D.4 which show that, the suit schedule property is standing in the name of the defendant No.1. The defendant No.1 has relied documents at Ex.P.8 - Certified copy of sale deed. On perusal of Ex.D.9 which shows that, endorsement is issued by the Bruhath Bangalore Mahanagara Palike, in respect of site No.14 which is standing in the name of defendant No.2. On perusal of Ex.D.17 which shows that, Sri.M.Munivenkatappa, Sri.M.Dasappa, Sri.Thimmaiah, Sri.Motappa and Sri.Ramachandrappa represented by their General Power of Attorney Smt.Padmavathi has 28 O.S.No.3424/2020 executed sale deed in favour of Sri. T.M.Thammanna in respect of site No.7 and 8 in Sy.No.5 situated at Bikasipur Village, Uttarahalli Hobli, Bengaluru South Taluk, Benguluru, measuring East to West: 60 feet, North to South: 40 feet. On perusal of Ex.D.18 which shows that, Smt.Padmavathi W/o.T.M.Thammanna has executed WILL on 20.05.2000 in favour of all her children.
24. So far as oral evidence of both parties is concerned to lis that plaintiff is examined as P.W.1 and P.W.1 has reiterated the contents of plaint. The P.W.1 has admitted in cross examination that: "ನನನನ ನನನ ಹಹಹಡತಯ ಮಮಲಹ ಎಹ.ಸ.745/1996 ರಹತಹ ವಚಹಚಮದನವನನನ ಕಹಕಮರ ನನನಯನಲಯಕಹಕ ಅರರ ಸಲಲಸದನದ ಅದನ ದನನಹಕ 14.10.1999 ರಲಲ ವಜನ ಆಗರನತತದಹ ಎಹದರಹ ಸರ. ದನನಹಕ 03.11.1999 ರಹದನ ನನನ ಹಹಹಡತಯನ ಆಕಹಯ ವಕಮಲರ ಮನಖನಹತರ ತನನನ ನಮಮಹದಗಹ ಸಹಸನರ ನಡಹಸಲನ ತಯನರದಹದಮನಹ ಬಹದನ ಕರಹದನಕಹಕಹಡನ ಹಹಕಮಗ ಎಹದನ ಒಹದನ ನಹಕಮಟಮಸನನನ ನಮಡದದರನ ಎಹದರಹ ಸರ. ನನನನ ನನನ ತಹದಹ ತನಯ ಮತನತ ಹಹಹಡತಯಹದಗಹ ಒಟಟಗಹ ವನಸ ಮನಡನತತದಹದವವ ಎಹದರಹ ಸರ." Further, P.W.1 has admitted in cross examination that: "ನನನನ ನನನ ವನದ ಪತತದಲಲ ಮತನತ ಸನಕಕಯ ವಚನರಣಹಯಲಲ 2 ಕಹ. ರ ಚನನ ಮತನತ 10 ಕಹ. ರ ಬಹಳಳ ಇದಹ 29 O.S.No.3424/2020 ಎಹದನ ನನಡದದನದ ಅದಕಹಕ ಸಹಬಹಧಸ ಯನವವದಹಮ ದನಖಲಹಗಳನನನ ನಮಡಲಲ ಕನರಣ ದನಖಲಹಗಳನ ಇಲಲ." Further, P.W.1 has admitted in cross examination that: "ಪತಸನತತ 1 ನಹಮ ಪತತವನದಯವರನ ವನದ ಪತತದ ಸಸತತನಲಲ ವನಸ ಮನಡನತತದನದರಹ ಎಹದರಹ ಸರ." The defendant No.1 is examined as D.W.1 and D.W.1 has reiterated averments of written statement. The D.W.1 has stated in cross examination that: "BDA ರವರನ ದದ 18.03.1996 ರಲಲ ನನನ ತನಯಗಹ ಬರಹದನಕಹಕಟಟದದರನ ಎಹದರಹ ಸರ." Further D.W.1 has stated in cross examination that: "ತಮಮಣಣನವರನ ಉಮಮಶಶ ರವರಗಹ ದದ 21.01.2002 ರಹದನ ದನನಪತತ ಬರಹದನಕಹಕಟಟದದರನ ಎಹದರಹ ಸರ. ಸದರ ಸಸತತನಲಲ ಉಮಮಶಶ ಹನಗಕ ಅವರ ಕನಟನಹಬದವರನ ವನಸವರನತನತರಹ ಎಹದರಹ ಸರ." Further, D.W.1 has stated in cross examination that: "ನನನ ತನಯ ಮಮತನನಪತತವನನನ 2000 ನಹಮ ಇಸವಯಲಲ ಬರಹದರನತನತರಹ. ಅದನ ನಹಕಮಹದಣಯನಗದಹ. " Further, D.W.1 has stated in cross examination that: " ನನನ ತನಯ ತಮರಕಹಕಳನಳವ ಸಮಯದಲಲ ನನನ ತನಯ ನನಗಹ ಮಮತನನಪತತವನನನ ನಮಡರನತನತರಹ. ಸದರ ಮಮತನನಪತತವನನನ ನನನನ ನಹಕಮಡದಹದಮನಹ. ಅದನ ಆಹಗಲ ಭನಷಹಯಲಲದಹ. ಸದರ ಮಮತನನಪತತ ಸನಟಹಪಶಪಹಮಪರಶನಲಲ ಬರಹಯಲನಗದಹ. "
25. The defendant No.1 has contended that his mother- Smt. K.Padmavathi had executed a registered 30 O.S.No.3424/2020 Will dated: 20.05.2000 while she was hail and healthy and in the said Will she had equitably distributed self acquired properties to all her children without any ill-will equally amongst her children with pure intention lest her children should not quarrel over her assets after her demise and in the said Will she has categorically explained lucidly and clearly as to how her properties be distributed amongst her children. The defendant No.1 has adduced the evidence of witness by name Sri.N.Shivaramu S/o. Late Narasimhegowda as D.W.2, who has deposed that: "I further state that at the time of presenting the said Will for registration she was having sound state of mind and the contents of the Will were read over to her in the presence of the witness and she has subscribed her signature after understanding the contents of the Will to her. I state that the said Will was prepared upon the instructions of the executrix in the presence of her husband and after his approval by advocate Sri.N.Venugopalagowda, later the same was carried for registration of the Will before the Sub-31 O.S.No.3424/2020
Registrars office. I state that Smt.Padmavathi, the executrix of the Will was personally present during the presentation of the Will, along with attesting witnesses who have attested the Will as attesting witness after the signatures of the executrix of the Will for registration and that she was in sound state of mind and having good health." The Will executed by the Smt. K.Padmavathi is marked as Ex.D.18 and signature of D.W.2 is marked as Ex.D.18(a). The learned Counsel for the plaintiff has cross-examined to the P.W.1, but nothing worthwhile is elicited during the cross-examination of P.W.1 to disbelieve his testimony.
26. The defendant No.2 has adduced the evidence of witness by name Smt.Sudhamani K.N W/o.
K.R. Venkateshaiah as D.W.3, who has deposed that: "I state that my husband Sri.K.R.Venkateshaiah, who was so close to the family of Smt.Padmavathi, had accompanied them to the Sub-Registrar's office and had signed the registered Will said to have executed by 32 O.S.No.3424/2020 Smt.Padmavathi in favour of her children." Further, D.W.3 has deposed that: "After carefully going through the said Will and on verification of my Late husband signature as witness on the Will, I accepted the request of Mr. Jagadish, who is well known to me since many years, I agreed to come and depose before the Court to identify the signature of my Late husband on the registered Will dated: 20.05.2000." The signature of Venkateshaiah K.R. on Will - Ex.D.18 is marked as Ex.D.18(b).
27. The Will has to be executed in accordance with Section 63 of Indian Succession Act R/w/Section 67 and 68 of Evidence Act. Disposition must be in writing. It should be signed by testator. The execution of the Will must be attested by at least two witnesses. There is no particular form for the Will.
28. It is the primary duty of the Court to ascertain the intention of the testator. That has to be ascertained 33 O.S.No.3424/2020 from the Will itself and it has to be gathered from the language of the Will.
29. The propounder has to prove the Will. There are two types of onus on the propounder:
1. he is to discharge the burden as regards the legal and valid execution of the will;
2. he is to remove the suspicious circumstances surrounding the execution of the Will so as to satisfy the consciously of the Court.
30. In order to establish the proper execution of the Will the propounder has to adduce evidence to convince the Court:
(a) the testator was in sound and disposing state of mind;
(b) the testator was free from the external influence;
(c) the testator understood the nature and effect of disposition;
(d) the testator put his signature on his own free Will;34 O.S.No.3424/2020
(e) the testator signed the Will in presence of two attesting witnesses;
(f) the Will was signed by the attesting witnesses in presence of the testator;
(g) the Will was the last Will of the testator.
31. The mode of proving a Will does not ordinarily differ from that of proving any of documents except as to the requirement of attestation prescribed in case of Will by Sec.63 of Indian Succession Act. The evidence of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the Will, proof of testamentary capacity and the signature of the testator is sufficient to discharge the onus.
32. In ascertaining the genuineness of the will, the court must satisfy its conscience that will have been executed by the testator out of his free will. The law in regard to proof of unprivileged will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any 35 O.S.No.3424/2020 suspicious circumstances. In this regard it is useful to refer Sec. 63 (C) of Indian Succession Act:
"Section 63,-execution of unprivileged Wills- Every testator, not being a solider employed in an expedition or engaged in actual warfare, (or an airman so employed or engaged,) or a mariner at sea, shall execute his will according to the following rules:-
a ) and b).........
c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, 36 O.S.No.3424/2020 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."
33. Sec.63 of Indian Succession Act lays down the mode and manner in which the execution of an unprivileged will be to be proved. Sec.68 of Indian Evidence Act postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that, execution of will must be proved by examining at least one attesting witness is alive subject to the process of the court and capable of giving evidence.
34. What is meant by the word attestation is defined in Sec.3 of Transfer of Property Act, which reads as under:
37 O.S.No.3424/2020
"Section 3-Interpretation-clause-In this Act, unless there is something repugnant in the subject or context,-
xxx xxxx xxx "Attested", in the relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no part icular form of attestation shall be necessary."38 O.S.No.3424/2020
35. There is long line of decision bearing on the nature and standard of evidence required proving a will. It is held by the Hon'ble Supreme Court of India in AIR 1959 Supreme Court page 443, (H.Venkatachala Iyenger
-Vs- B.N.Thimmajamma and others), which reads thus:
"Evidence Act (1872), Ss. 45 and 47-
Proof of will-Onus of proof on propounder-Nature- Appreciation of evidence-Duty of Court- (Succession Act (1925), Ss. 59 and 63)-Wills).
The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence 39 O.S.No.3424/2020 Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 57 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concern are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until lone attesting witness at least has been called for the purpose of proving its execution.
These provisions prescribe the requirements and the nature of proof, which must be satisfied by the party who relies on a document in a court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last 40 O.S.No.3424/2020 will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propound or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; land this aspect naturally introduces an element of solemnity in the decision 41 O.S.No.3424/2020 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 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 42 O.S.No.3424/2020 discharged on proof of the essential facts just indicated.
There may, however, because in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be 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 43 O.S.No.3424/2020 expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document, as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances above referred to in some cases the wills propounded 44 O.S.No.3424/2020 disclose another infirmity.
Propounder themselves take a prominent part in the execution of the wills which confer on them
substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly 45 O.S.No.3424/2020 executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties: AIR 1946 P C 156, Rel. on.46 O.S.No.3424/2020
It is no doubt true that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case: Air 1929 Cal 484, Ref."
36. At this juncture it is further useful to refer the ratio laid down by Highest Court of the land in 2009 SAR (Civil) Page 173 (Lalitaben Jayantilal Popat -Vs- Pragnben Jamnadas Kataria and others) held as under:
"A) Indian Succession Act, 1925, Sec.
63 (C )- Indian Evidence Act, Sec. 68-
Requirements for proving a will-
Suspicious circumstances surrounding the execution of the will-Not 47 O.S.No.3424/2020 explained by propounder-Will can not be said to have been legally proved-A declaration is made by the testator that he had signed before both the witnesses and only before him both the witnesses had put their signatures-Attesting witness does not say so-According to him, the testator had already put his signature-He was alone with the testator-It is evident that at that point of time another witness had to put his signature that at that point of time another witness had not put his signature on the Will-
Still his name appears at serial No.1- Held: attestation, which is mandatory is not proved- Will has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances.
B) Will-Proof of valid Will-It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances-Testator's 48 O.S.No.3424/2020 declaration that he had signed before both the witness- Attesting witness does not say so-According to him the testator had already put his signature-He was alone with the testator-Suspicious circumstances surrounding the execution of the will-
Not explained by propounder-Will cannot be said to have been proved-
Held: inferences of suspicious circumstances can be drawn having regard to the evidence of attesting witness."
37. The Hon'ble Supreme Court of India in Ramabai Padmakar patil (Dead) through LRs. And others
-Vs- Rukminibai Vishnu Vekhande and others in (2003) 8 SCC 537, has held thus:
"Before we advert to the submissions made by the learned counsel for the parties, it will be useful to briefly notice the legal position regarding 49 O.S.No.3424/2020 acceptance and proof of a Will. Section 63 of the Indian Succession Act deals with execution of unprivileged Wills. It lays down that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. It further lays down that the Will shall be attested by to or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and on the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. Section 68 of the evidence Act mandates examination of one attesting witness in proof of a Will, whether registered or not".
38. Further the Hon'ble Supreme Court of India in Janki Narayan Bhoir -Vs-Narayan Namadeo Kadam-(2003) 2 SCC 91 has held thus:
50 O.S.No.3424/2020
"8. The say will has been duly executed the requirement mentioned in clauses (a), (b) and (c) of Section 63 of the succession Act are to be complied with i.e.(a) the testator has to sign of affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place form which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sign the will in the presence and by the direction of the testator or must have received from the testator a personal acknowledgement of 51 O.S.No.3424/2020 signature or mark, or of the signature of such other person, and each of the witnesses has to sign the will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks of as to now a document required by law to be attested can be proved.
According to the said Section, a document required by law to be attested shall not be used as
evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this section that if there been an attesting witness alive capable of giving evidence and subject to the process 52 O.S.No.3424/2020 of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act, does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63, Although Section 63 of the Succession Act re- quires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a 53 O.S.No.3424/2020 document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will, to put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting 54 O.S.No.3424/2020 witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also if falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under section 63 of the succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by 55 O.S.No.3424/2020 the other witness there will be deficiency in meeting the mandatory requirements of section 68 of the Evidence Act."
39. On perusal of recitals of Ex.D.18 which demonstrates that the suit schedule property -'Schedule
-A' at para 2 of Will, is bequeathed in favour of the defendant No.1 by the Late K.Padmavathi. The defendant No.1 has to prove that Smt.K.Padmavathi had executed the Will in sound disposing state of mind. At least one attesting witness should be examined before the Court. Therefore, there are no suspicious circumstances surrounding the Will. In view of Ex.D.18 and principles laid down from above referred Judgments, the defendant No.1 has proved that Smt.K.Padmavathi during her life time has executed a Will dated: 20.05.2000, in which the suit schedule property has bequeathed to defendant No.1.
56 O.S.No.3424/2020
40. Though the plaintiff has contended that, immediately after the death of K.Padmavathi, the defendant No.1 has broken the lock of the Almira and taken away all the gold and silver articles together with all original documents and Bank pass books and FD receipts, these facts are not proved by him by leading corroborative evidence.
41. The defendant No.1 has contended that since, the plaintiff was not in good terms with his parents, he pressurized his mother Late K.Padmavathi to execute registered conveyance deed immediately, due to his pressure tactics, Late K.Padmavathi was compelled to execute registered conveyance deed in favour of her husband Sri.Thammanna, within 7 months from the date of registering the Will on 07.12.2000. But, the plaintiff did not stop his pressure there, he stopped talking to his parents, and visiting them regularly, due to his act, they finally yielded to the plaintiff and finally defendants father executed a registered gift deed dated: 21.01.2002 57 O.S.No.3424/2020 in favour of the plaintiff in order to see that the family and children remain happy intact. As per Ex.D.1 which shows that, Sri.T.M. Thammanna has executed gift deed on 21.01.2002 in favour of plaintiff in respect of site No.7 and 8 in Sy.No.5, CMC Khatha No.539/5/7-8, situated at Bikasipura, Uttarahalli Hobli, Bengaluru South Taluk, Benguluru measuring East to West: 60 feet, North to South: 40 feet.
42. The defendant No.1 has contended that his mother K.Padmavathi had bequeathed sites to her two daughters which being mentioned in the same Will at para 4 'Schedule-C' to Smt. Bhagyalakshmi and para 5 'Schedule-D' Manjula Devi and finally to defendant No.1 at para 2 'Schedule -A.' The recitals of Ex.D.18 -Will which depicts that, bequeathing sites to her two daughters at para 4 'Schedule-C' to Smt.Bhagyalakshmi -defendant No.2 and para 5 'Schedule-D' to Smt.Manjula Devi - defendant No.3.
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43. By considering entire evidence of P.W.1 and D.W.1, D.W.2 and D.W.3 and documents exhibited on both sides, on close scrutiny of pleadings of both parties and on careful appreciation of evidence, the plaintiff has not proved that the suit schedule property is joint family property. The defendant No.1 has proved that, his mother Smt.K.Padmavathi has executed registered Will, dated:
20.05.2000 and distributed her self acquired properties to all her children. The defendant No.1 has proved that his father executed gift deed, dated: 21.01.2002 infavour of plaintiff. The plaintiff not entitled for 1/4 th share in suit schedule property. The plaintiff is not entitled for mesne profits. Hence, I answer Recasted Issue No.1 in the Negative, Recasted Issue No.2 and 3 in the Affirmative, Recasted Issue No.5 and 6 in the Negative.
44. RECASTED ISSUE NO.4: The defendant No.1 has contended that, Court fee paid is insufficient. The plaintiff has denied this facts. The defendant No.1 has not proved 59 O.S.No.3424/2020 this Issue. Hence, I answer Recasted Issue No.4 in the Negative.
45. RECASTED ISSUE NO.7: At the outset, it is for the plaintiff to prove his case. The plaintiff cannot rely on the weakness of the defendants. The plaintiff has not proved that the suit schedule property is joint family property. The defendant No.1 has proved that, his mother Smt.K.Padmavathi has executed registered Will, dated:
20.05.2000 and distributed her self acquired properties to all her children. The defendant No.1 has proved that his father executed gift deed, dated: 21.01.2002 infavour of plaintiff. The plaintiff not entitled for 1/4 th share in suit schedule property. The plaintiff is not entitled for mesne profits. Hence, I answer Recasted Issue No.7 in the Negative.
46. RECASTED ISSUE NO.8: In the result, I proceed to pass the following:
60 O.S.No.3424/2020
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Stenographer Grade-III directly on computer online, typed by her corrected by me and then pronounced in the open court on this the 20th day of February, 2025) Digitally signed by SHIVANAND SHIVANAND MARUTI MARUTI JIPARE Date: 2025.02.20 JIPARE 13:50:34 +0530 (SHIVANAND MARUTI JIPARE) LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:
P.W.1 : Sri.T.Umesh S/o. Late Thammanna. LIST OF DOCUMENTS MARKED FOR PLAINTIFF: 61 O.S.No.3424/2020 Ex.P.1 : Death certificate of Late Padmavathi K. Ex.P.2 : Death certificate of Late Thammanna T. M. Ex.P.3 : Khatha certificate dated: 29.07.2020. Ex.P.4 : Khatha extract issued on 29.07.2020. Ex.P.5 : Certified copy of absolute sale deed dated:
18.03.1996.
Ex.P.6 : Property tax receipt of the year 2020-21 issued by B.B.M.P-Revenue Department. Ex.P.7 : Certified copy of absolute sale deed dated:
08.09.2003.
LIST OF WITNESSES EXAMINED FOR DEFENDANTS:
D.W.1 : Sri.T. Jagadish S/o. Late Thammanna.
D.W.2 : Sri.N. Shivaramu,
S/o. Late Narasimhegowda.
D.W.3 : Smt.Sudhamani K.N. W/o.
K.R.Venkateshaiah.
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:62 O.S.No.3424/2020
Ex.D.1 : Copy of gift deed dated: 21.01.2002. Ex.D.2 : Khatha certificate issued by B.B.M.P-
Revenue Department dated: 01.06.2020. Ex.D.3 : Khatha extract issued by B.B.M.P-
Revenue Department dated: 01.06.2020. Ex.D.4 : Uttara Pathra issued by B.B.M.P on 29.05.2020.
Ex.D.5 to 7 Property tax paid receipts.
:
Ex.D.8 : Certified copy of sale deed dated:
10.03.1995.
Ex.D.9 : Endorsement issued by B.B.M.P on 07.02.2024.
Ex.D.10 : Property tax paid receipts.
&11 Ex.D.12 : I.D. card of defendant No.1.
Ex.D.13 & : Discharge summaries issued by Apollo Ex.D.14 Hospital. Ex.D.15 : Deposit receipt issued by Apollo Hospital. 63 O.S.No.3424/2020 Ex.D.16 : Patient Bill. Ex.D.17 : Certified copy of absolute sale deed dated: 07.12.2000. Ex.D.18 : WILL dated: 20.05.2000. Ex.D.18(a) : Signatures. &18(b) Digitally signed SHIVANAND by SHIVANAND MARUTI MARUTI JIPARE JIPARE Date: 2025.02.20 13:50:42 +0530 (SHIVANAND MARUTI JIPARE)
LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU.