Bangalore District Court
Hebbalmuth M Thippeswamy vs Manjula Jammakhandimath on 13 September, 2024
1
O.S.No.1812/1997
KABC010008861997
C.R.P.67
Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XLIV ADDL. CITY CIVIL
JUDGE, AT BENGALURU (CCH-45)
Dated this the 13th day of September, 2024
PRESENT: SRI. DODDEGOWDA.K, B.A., L.L.B.,
XLIV ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU.
O.S.No.1812/1997
PLAINTIFF : Sujatha Hiremath
8, Chestnut Hill Road,
North Caldwell,
New Jersey 07006 USA.
(By Sri.A.K.K., Advocate)
(The original plaintiff No.1 by
name Hebbalamath M.
Tippeswamy has been transposed
as defendant No.7 vide order
dated 03/06/2017.)
2
O.S.No.1812/1997
VS.
DEFENDANTS: 1. Manjula Jamakhandimath
5, Ground Floor,
2nd Main, Kumara Park West
Bangalore-560020.
2. H.M. Umadevi
5/2, 2nd Floor, 2nd Main,
Kumara Park West
Bangalore-560020.
Since deceased represented
by her L.R
2(a). Ganga Rupender
R/at No.1104, 11th Main,
D Cross, Mahalakshmipuram
West of Chord Road
Bangalore-560086.
Also at:
A 12, Santhemala Circle,
KR Sagara, Srinagapatnam Taluk
Mandya-571607
(Amended and brought on record as
per order of this Hon'ble Court dated
28/02/2015)
3. Sundanda Sangamanath
Coffee Planter,
Kalammana Kumari Estate
Somwarpet, North Coorg
Karnataka
Since deceased represented by her
LR's
3(a) Smt. Manjula Kumaraswamy
D/o Late C. Sangamnath,
3
O.S.No.1812/1997
aged about 57 years,
R.at 4/A, 5th Main, 4th Block
Jayanagar, Bangalore-560041.
3(b) Smt. Jyothi Patre
D/o Late C. Sangamnath,
aged about 55 years,
R.at Birur 577116,
Chikkamagaluru Dist.
(Amended and brought on record as
per order of this Hon'ble Court dated
02-07-2019)
4. G. Gowramma
W/o Dr. Gurusiddiah
No.1230, Clifford Street,
Pullman, Washington 99163, USA
5. M. Shanthamma
5, Ground Floor,
2nd Main, Kumara Park West
Bangalore-560020.
6. C.S. Nagaraj
Coffee Planter,
Kalammana Kumari Estate
Somwarpet, North Coorg
Karnataka.
7. Hebbalamath M. Thippeswamy
7, Shen Court,
Poquott,
New York 11733 USA.
D.1 to 6 M.S. advocate
D3(a) to (d) M.S. Advocate
Date of Institution of the 05/03/1997
suit
Nature of the suit Partition and Separate
4
O.S.No.1812/1997
Possession
Date of commencement of 06-06-2018
recording of the evidence
Date on which the 13-09-2024
Judgment was pronounced
Total Duration Years Months Days
27 06 08
(DODDEGOWDA.K)
XLIV ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This suit is filed for the relief of partition and separate possession of 1/6 share each in the suit schedule A, and C properties by dividing the same by meats and bounds and 1/6 share in the movable properties mentioned in schedule 'B' properties and also for consequential relief of permanent injunction.
2. Initially, one Hebbalmath M. Thippeswamy and Sujatha Hiremath were the plaintiffs and the plaintiff No.1 was deleted as he has been transposed as defendant No.7 vide order dated 03/06/2017 thus only 5 O.S.No.1812/1997 the plaintiff by name Sujatha Hiremath has remained as plaintiff in the suit.
3. The case of the plaintiff in brief is as under:-
The plaintiff is a home maker and resident of United States of America and is an American citizen of Indian origin. The defendant No.1 to 3, 5 and 6 are residents of Bengaluru. The defendant No.4 is a resident of USA . The plaintiffs and defendant No.1 to 4 are the children of Late. H. Maharudraiah. The 5 th defendant is the mother of plaintiff and defendant No.1 to 4 and the widow of Late. H. Maharudraiah. The defendant No.6 is the son of 3rd defendant.
4. It is submitted that the father of the plaintiff Late. H. Maharudraiah passed away intestate at Bangalore on 8th day of July 1992 leaving behind several movable and immovable properties including jewelry, cash, personal effects, fixed deposits in several banks, 6 O.S.No.1812/1997 savings accounts in several banks, artefacts, including guns, a fiat car, which are more fully described in the schedule 'B' and immovable property comprising of premises bearing No.5, 2nd Main, 5th Block, Kumaraparak West, Bangalore which is more fully described in the schedule 'A' and immovable property bearing property No.775, Binnamangala Extension, Double Road Indira Nagar, 2nd Stage which is more fully described in the schedule 'C' apart from other movable and immovable properties, which were self acquired properties of Late. H. Maharudraiah, the father of the plaintiff.
5. It is further submitted that soon after the death of her father, they rushed to India in July 1992 to attend the obsequies of their father. After the obsequies was over and when the plaintiffs were to return back to the USA, the plaintiffs expressed their desire to settle the issue relating to the succession of the properties left behind by their late father, among themselves, and 7 O.S.No.1812/1997 defendant No.1 to 5. The plaintiff state that the defendants had stated that no Will or any other document was left behind by the Late. H. Maharudraiah. The plaintiff state that under Hindu Law of succession the plaintiffs and defendant No.1 to 5 each are entitled to 1/7 share of the entire properties both movable and immovable comprising the estate of Late. H. Maharudraiah.
6. It is submitted that the mother of the plaintiff and defendant No.1 to 4 (defendant No.5) passed away on 31/07/2013. The plaintiffs and defendant No.1 to 4 are the only legal heirs of their mother. On the death of defendant No.5, her interest in the schedule properties have passed to plaintiff No.1 and 2 and defendant No.1 to 4 in equal shares. As such on the death of defendant No.5, the share of each of the plaintiff and defendant No.1 to 4 in the schedule properties have stood enhanced from 1/7 to 1/6. The plaintiff would be 8 O.S.No.1812/1997 entitled to 2/6 interest in the suit schedule properties.
7. It is submitted that no progress whatsoever was made in settling the issue relating to the succession of the properties left behind by their late father and the plaintiffs return to the USA. During the 2nd visit to India after death of their father, by the 1 st plaintiff in February 1993 and the 2nd plaintiff in November 1993, they had once again expressed their desire to the defendants to settle the issue of succession to the estate of their late father. However, the defendants, failed to show any interest in this respect and were being evasive of the issue relating to the succession to the estate of their late father.
8. It is submitted that the intention of the defendants to illegally oust the plaintiffs from claiming any rights over the estate of the Late. H. Maharudraiah. became evident during the 3rd visit of the 1st plaintiff to India in July 1995. After the death of their father Late. 9
O.S.No.1812/1997 H. Maharudraiah, the defendants produce a document purporting to be a copy of Will of Late. H. Maharudraiah. The 1st plaintiff was shocked and surprised to learn that Late. H. Maharudraiah had allegedly left a "WILL" as the same was produced as late as in July 1995 almost 3 years after death of their father. The said documents purporting to be a copy of the Will of their late father sought to divide the ownership rights over the immovable property bearing No.5, 2nd Main, Kumarapark west among the defendant No.1, 2 and 6.
9. It is further submitted that production of copy of the documents purporting to be "WILL" of their late father as late as July 1995 and further the manner in which the property was sought to be divided under the purported Will excluding the 1st plaintiff who is the only son of late. H. Maharudraiah and 2 nd plaintiff who was very affectionate to her father, cast a serious doubt as to the genuineness of the Will. In the circumstances, 10 O.S.No.1812/1997 the 1st plaintiff demanded the production of the original of the WILL. The defendants, however, failed to produce the original and gave evasive replies as to the whereabouts of the original of the "WILL". The defendants were silent as to the whereabouts of the movables left behind by the late H. Maharudraiah.
10. In August 1996, when the 2nd plaintiff visited India, she once again called upon the defendants to furnish the original of the "WILL". The defendants furnished document purporting to be the original of the Will of the late H. Maharudraiah. However, considering the document of the plaintiff sisters the 1 st, 2nd and 3rd defendants and also the late production of the document purporting to be the Will and also the manner in which the rights in the immovable property were sought to be distributed and further the evasive replies as to the production of the original by the defendants and also the whereabouts of the movables 11 O.S.No.1812/1997 gave the inference that the document furnished as original of Will was concocted and made up and the signature of the Late H. Maharudraiah was traced and forged.
11. The 2nd plaintiff in the circumstances questioned the genuineness of the document and called upon the defendants to furnish the document purporting to be the original to a finger print expert to authenticate the signature of the late. H. Maharudraiah in order to avoid any doubts as to the genuineness of the document.
12. The plaintiffs state that pursuant to the requests made by the 2nd plaintiff, the defendants produced the original to a finger print expert Mrs.C.V. Jayadevi for her opinion. The finger print expert by her written opinion dated 24.09.1996 has opined that the signatures of the later H. Maharudraiah on the document purporting to be original of his "WILL" was 12 O.S.No.1812/1997 traced and forged.
13. The Plaintiffs state that in the circumstances, it became clear that the defendants had conspired to defraud the Plaintiffs of the rights in the immovable property bearing No. 5, 2nd Main, Kumara Park (West), and also movable properties including jewelry, artefacts etc left by their late father. The Defendants are guilty of fraud, forgery, cheating and of having criminally conspired to misappropriate the properties belonging to their late father, in which the Plaintiffs are entitled to 1/6th share each under the Hindu Law of Succession.
14. The Plaintiffs state that their father late Mr. H. Maharudriah having passed away intestate leaving behind the properties, the plaintiff and defendant No.1 to 4 and 7 are entitled to 1/6 share in the entire estate left behind by the H. Maharudraiah.
15. It is submitted that the Defendants 1, 2, 3, and 6 have embarked upon a ploy to some how illegally 13 O.S.No.1812/1997 oust the Plaintiffs from claiming any share in the estate left behind by their late father. Pursuant to this ploy they have concocted a document purporting to be the Will of their late father by forging the signatures of their late father. The Plaintiffs state that the same is evident from the conduct of the defendants and has been confirmed by the independent finger print expert. The Defendants have taken undue advantage of the absence of the Plaintiffs from India in perpetuating the fraud on the plaintiffs. The immovable and moveable properties are in the joint possession of the defendants and are situated within the jurisdiction this Court. Hence, the present suit for necessary reliefs.
16. In pursuance of service of suit summons defendants appeared through their counsel and filed detailed written statement. The defendant No.5 has filed the following written statement on her behalf and on behalf of defendant No.1 to 3 and 6:-
14
O.S.No.1812/1997 The suit of the plaintiff is not maintainable either in law or on facts and hence, the same is liable to be dismissed in limine.
17. The suit filed by the plaintiff is false, frivolous , vexatious and fraudulently brought in order to harass and coerce this defendant as well as other defendants to adhere to their dictates and hence, same is liable to be dismissed.
18. The suit of the Plaintiff is not maintainable view of the fact that the Plaintiffs have not paid proper court fee and also the suit is hopelessly barred by limitation and hence, the suit of the Plaintiffs is liable to be dismissed on these counts.
19. Without prejudice to the above said contentions, this defendant traverses the plaint averments as under:-
20. Reg. Paras-2 to 6 of the plaint: The relationship between the parties and the averments 15 O.S.No.1812/1997 made in these paragraphs are proper and correct.
21. Reg. Paragraph No.7 of the plaint it is true that the husband of this defendant i.e Mr.H.Maharudraiah, died on 8/07/1992. However, the averment that the said Sri Maharudraiah died intestate leaving behind several movables and immovable properties including the jewelry, cash, personal effects, fixed deposits in several banks, saving accounts in several banks, Artifacts, including Guns, is hereby denied as false and the Plaintiffs are put to strict proof of the same. The husband of this defendant had acquired immovable property described in Schedule-A of the plaint and it is his self-acquisition. The husband of this defendant during his life time had executed a Will dated 5/12/1991. Pursuant to the Will executed by late Maharudraiah, all the beneficiaries under the Will have made an application before the Bangalore City Corporation for transfer of katha. Accordingly, the 16 O.S.No.1812/1997 property described in the Schedule-A is bifurcated as per the Will and kathas have been effected in favour of the defendants 1, 2 and 6. It is further submitted that the 2nd defendant after taking possession of the property as per the desire of her father, she has spent nearly Rs.3,00,000/- for putting up for further constructions in order to suit her convenience. It is relevant to mention here that when the construction was going on, the 2nd Plaintiff had visited the property in the year 1993. However, at that time, she did not raise any objections for such construction since she was fully aware of the fact that her father has executed a Will bequeathing the schedule-A property in favour of Defendants 1, 2 and 6. The conduct of the Plaintiffs clearly shows that the above suit has been filed by them only to coerce and harass this defendants and other defendants for the reasons best known to them. 17
O.S.No.1812/1997
22. It is further submitted that the Corporation authorities pursuant to the Will, have transferred the katha vide No. DA 71 KTR 63/91-93 dated 30.12.1992 and all the beneficiaries under the Will, are enjoying the property right from December, 1992. It is further submitted that during the life-time of late. Maharudraiah, he made an application to Bangalore city Corporation for bifurcation of kathas and accordingly, the Corporation authorities have assigned three different numbers as 5, 5/1 and 5/2. Accordingly, the Will is executed in favour of the defendant No.1, 2 and
6. The fact of execution of the Will, was made Known to the Plaintiffs when they came to Bangalore to attend the death ceremony of Late. Maharudraiah. Thereafter, they requested for furnishing of a copy of the Will and accordingly, the copy of the Will was sent to the plaintiffs through 4th defendant who is also residing at U.S.A. On receipt o the Will, the 1 st Plaintiff had come to 18 O.S.No.1812/1997 Bangalore in the month of February, 1993. At that time, the Plaintiff No.1 has removed all the jewellaries from custody of this defendant and went back to America. The 1st plaintiff before removing these jewellaries had read the contents of the Will and understood the same and thereafter he has taken all the jewellaries of the family and he did not whisper anything about the execution of the Will executed by husband of this defendant and as such, the allegations made in the plaint alleging that the signature of late Maharudraiah, is forged and the document is concocted is hereby denied as false and the Plaintiffs are put to strict proof of the same.
23. It is further submitted that except the immovable property described in the Schedule-A, Sri.Maharudraiah, has not left any other immovable properties undisposed and whatever cash was available, he has disbursed the same before his death 19 O.S.No.1812/1997 and hence, there is no property available for partition and as such, the entire suit of the plaintiff is liable to be dismissed.
24. Reg Para 8 of the plaint:- The averments made in this paragraphs is hereby denied as false and the Plaintiffs are put to strict proof thereof. However, it is true that the plaintiffs came to India to attend eleven days ceremony and after completion of all the obsequies, they returned back to USA. But the averments that the plaintiffs expressed their desire to settle the issue relating to the succession of the properties left behind by their father, amongst themselves and the defendant No.1 to 5, is hereby denied as false and the plaintiffs are put to strict proof thereof. The further averments that this defendant has stated that no Will or any other document was left behind by late Maharudraiah, is hereby denied as false. As already stated above, the execution of the Will was 20 O.S.No.1812/1997 made known to the plaintiffs in the month of July, 1992 itself and the copy was served on them in the month of October 1992 through the 4th defendant and as such, the entire averments made in this paragraph are hereby denied as false and the plaintiffs are put to strict proof thereof.
25. Reg para-9:- The averments made in this paragraph are not proper and correct. As stated above, the properties belonging to late Maharudraiah, have already been settled in accordance with the Will executed by him and hence, the question of making any progress for the settlement of the issue relating to the succession of the properties, do not arise.
26. Reg.Para-10:- It is true that the 1 st plaintiff visited India again in February, 1993 and the 2 nd plaintiff in the month of November, 1993. But the averments that they had once again expressed their desire to the defendant to settle the issue of succession 21 O.S.No.1812/1997 of the estate left over by their late father, is hereby denied as false and the Plaintiffs are put to strict proof thereof. It is further submitted that after the perusal of the Will and its confirmation, the 2nd plaintiff collected a sum of Rs.1,50,000/- from the 3rd defendant as the husband of this defendant instructed the 3 rd defendant to pay a sum of Rs.1,50,000/- to the 2 nd plaintiff. Accordingly, 3rd defendant has paid the said amount in installments and some of the amounts were deposited in the bank, for which, the 3rd defendant has got receipts. The 2nd plaintiff has acknowledged the said sum of Rs.1,50,000/- but no receipt is issued and the 3 rd defendant also did not collect any receipt as she being the sister of the 2nd Plaintiff.
27. Reg para-11:- The averments made in this paragraph are hereby denied as false and the Plaintiffs are put to strict proof thereof. The averments that the defendants produced a document purported to be a 22 O.S.No.1812/1997 copy of the Will of late Maharudraiah, and the 1 st Plaintiff was shocked and surprised to know that Sri. Maharudraiah, has allegedly left a Will as the same was produced as late as in the month of July, 1995, i.e almost after three years from the date of death of their Father is hereby denied as false and the Plaintiffs are put to strict proof thereof. As already stated above, a copy of the Will was given to the Plaintiffs in the year 1992 itself as desired by the Plaintiffs and a copy the Will was also sent to America through the 4 th defendant. Hence, the averments that the Will is concocted and created document is false to the knowledge of the plaintiffs themselves.
28. Reg Para 13:- The averment made in this paragraph are hereby denied as false and the plaintiffs are put to strict proof thereof. As already stated above, the copies of the Will was furnished to the Plaintiffs in the month of October 1992 itself and they are fully 23 O.S.No.1812/1997 aware of the fact that their father had executed a Will bequeathing the property bearing No 5, 5/1 and 5/2 in favour of the defendants 1, 2 and 6 respectively and pursuant thereto, the defendants 1, 2 and 6 are enjoying their respective shares and as such the entire averments made in this paragraph are hereby denied as false and the plaintiffs are put to strict proof thereof.
29. Reg Para-14:- The averments made in this paragraph are all false, fabricated and created only to suit the convenience of the Plaintiffs. Since the copy of the Will was furnished in the month of October, 1992 itself through the 4th defendant to the Plaintiffs, the question of 2nd Plaintiff calling upon this defendant to furnish the Will in the year 1996 does not arise and the said averments are deliberately made only to make out a case so as to file the present suit. It is further submitted that the averments to the effect that the Will was got up and the signature of Sri Maharudraiah was 24 O.S.No.1812/1997 forged, is not proper and correct and the same is hereby specifically denied as false and the plaintiffs are put to strict proof thereof. The Will was executed by late Sri Maharudraiah on his own and he has bequeathed the properties as per his wish and desire and that cannot be curtailed by the plaintiffs or any other person since the Schedule-A property is the self- acquired property of late Sri Maharudialah and accordingly, during his life time, he has executed a Will bequeathing the properties in favour of Defendants 1, 2 and 6 and the said fact was made known to the plaintiffs during the year 1992 itself immediately after the death of late Maharudraiah and a copy of the Will was furnished to the Plaintiffs in the year 1992 itself and as such, the entire averments made in respect of the same are all false, fabricated and created only for the purpose of filing the above suit. It is further submitted that in fact on a perusal of the Will and on its 25 O.S.No.1812/1997 confirmation, the 2nd Plaintiff has collected a sum of Rs.1,50,000/- from the 3rd defendant. Hence, the suit of the plaintiffs is liable to be dismissed.
30. Reg.Para-15:- The averments made in this paragraph are hereby denied as false and the Plaintiffs are put to strict proof thereof. The averments that the 2nd plaintiff in the circumstances, questioned the genuineness of the document and called upon the defendant to furnish the document purported to be the original Will, to a finger print Expert so as to authenticate the signature of late Sri Maharudraiah in order to avoid any doubt as to the genuinety of the document, is hereby denied as false and the Plaintiffs are put to strict proof thereof.
31. Reg Para-16:- The averments that pursuant to the request made by the 2nd plaintiff, the defendants produced the original will to a finger print expert smt C.V. Jayadevi, for her expert opinion and the finger print 26 O.S.No.1812/1997 expert by her written opinion dated 24.9.1996 has opined that the signature of late Maharudralah, on the document purporting to be original of his WILL, was forged, is hereby specifically denied as false and the plaintiffs are put to strict proof thereof. The original will is available with this defendant only, as stated above, the copies of the will were furnished to the plaintiffs in the year 1992 itself and as such, the entire averments made in paragraphs 14, 15 and 16 are all cooked up story only for the purpose of filing the above suit.
32. The Plaintiffs being the son and daughter, have used indiscreet language against this defendant and other defendants who are all sisters which shows the conduct of the Plaintiffs. The Plaintiffs did not raise any objection when it was brought to their notice that their late father had executed a Will bequeathing the properties favour of the defendants 1, 2 and 6. However, off-late in the year 1997 for the reasons best 27 O.S.No.1812/1997 known to them, the Plaintiffs have filed the above suit making false and frivolous allegations against their own mother and sisters and nephew. It is pertinent to state here that the 1st plaintiff during his visit during 1993, has removed all the jewellaries belonging to his family on the ground that his father has executed a Will bequeathing the properties in favour defendants 1, 2 and 6 and the 2nd Plaintiff has collected a sum of Rs 1,50,000/- as per the desire of her father from the 3 rd defendant. After having collected the jewellary and cash, as stated above, they have chosen to file this suit in the year 1997 which is barred by limitation and hence, the suit of plaintiffs is liable to be dismissed.
33. Reg.Para-17:- The averments made in this paragraph that in the circumstances, it became clear that the defendants had conspired to defraud the Plaintiffs of their rights in the movable properties described in the schedule- 'B' and the immovable 28 O.S.No.1812/1997 properties described in Schedule- 'A' are are all hereby denied as false and the Plaintiffs are put to strict proof thereof. The further averments that the defendants are guiltily of playing Fraud, Forgery and cheating and having criminally conspired to misappropriate the properties belonging to their late father in which the Plaintiffs are entitled to 1/7th share each under the Law of Succession is hereby denied as false and the plaintiffs are put to strict proof thereof. The Plaintiffs have narrated a false story after having collected the Jewellary and cash as stated above in order to coerce and induce the defendants to extract money from them. Hence, the suit of the plaintiffs is liable dismissed.
34. Reg.Para-18:- The averments made in this paragraph are all false, fabricated and created only for the purpose of filing of the above suit. As already stated above, the husband of this defendant, had executed a 29 O.S.No.1812/1997 Will on 5.12.1991 and as per the said Will, the property described in Schedule-A has been transferred in favour of the Defendants 1, 2 and 6 and The Plaintiffs are even though fully aware of the said fact, have now chosen to file the above suit by making false allegations against their own mother and sisters.
35. Reg.Para-19:- The averments made in this paragraph are all false, fabricated and created and hence, the entire averments are hereby denied as false and the Plaintiffs are put to strict proof thereof. As already stated above, there was no occasion whatsoever to forge the signature of the husband of this defendant who was holding so many respectable posts in the British Government also and he retired as an I.A.S. Officer and also as a Member of the Public Service Commission and he being highly qualified person, had executed a Will as per his desire and wish and bequeathed the properties in favour of the 30 O.S.No.1812/1997 Defendants 1, 2 and 6 as per the Will. Hence, the question of forging the signature of the husband of this defendant does not arise and this defendant being the mother loves the Plaintiffs as well as the defendants being her children. There is no question of any discrimination amongst the children and she is treating all her children alike even till today. Infact, the Plaintiffs have visited the residence of this defendant when they come to India and specifically the 2nd Plaintiff who is in India now, had visited the residence of this defendant on 5th August, 2000 and she was being looked-after by this defendant as her loveable daughter.
36. It is submitted that late Maharudriah was owning pistol and the same was gifted to the 6 th defendant, who is the grand son of this defendant. It is further submitted that the husband of this defendant had obtained permission from the Commissioner of police in the year 1990 for gifting the gun and 31 O.S.No.1812/1997 accordingly, the Addl Director General of Police and Commissioner of Police, had granted the permission on 12th September 1990 for transfer of the Gun in favor of the said 6th defendant. Accordingly, the 6 th defendant obtained a license to use the said Gun so gifted by his grand father.
37. As far as the Fiat Car is concerned, the same was disposed of as it was very old and it was not in a running condition.
38. It is further submitted that the husband of this defendant had purchased the property bearing No.755, Binnamangala Layout, Indiranagar, Bangalore- 38 measuring 50 x 80 ft at his own cost and also in the name of the 1st plaintiff who is his only son in order to avoid any future complications amongst his family members and also constructed 30 Squares building thereon by investing his own funds and the said building fetches a rent of Rs 25,000/- per month in the 32 O.S.No.1812/1997 said area. The plaintiffs have conveniently not included the said property in the suit for seeking partition.
39. It is further submitted that since late Maharudraiah, had purchased the property No 755., Binnamangala Layout, Indiranagar, Bangalore-38, in the name of his son i e. 1st plaintiff herein, he has executed the Will in favour of the Defendants No.1, 2 and 6 bequeathing the Schedule-A property in their favour. In the circumstances, there is no basis whatsoever to file the above suit seeking partition of Schedule-A property alone.
40. It is further submitted that the plaintiffs have not furnished proper description about the movables stated in Schedule-B which shows that there is no movables as stated in Schedule-B of the plaint schedule properties. The wordings appearing in Schedule-B shows as if the Plaintiffs are asking the entire world without giving any description about the jewellary or 33 O.S.No.1812/1997 the deposits or cash receipts. Hence, the claim made by the Plaintiffs in so far as the movables are concerned, it has no basis whatsoever and hence, the suit of the plaintiffs is liable to be dismissed..
41. The averments made in paragraphs 20, 21 and 22 of the plaint are all hereby denied as false and Plaintiffs are put to strict proof thereof.
42. There is no cause of action to file the above suit and one that is alleged is created and made out for the purpose of filing the above suit.
43. The defendant No.7 (Plaintiff No.1 transposed as defendant No.7) submits his written statement as under;
The claim of the plaintiff in respect of the suit schedule 'C' property is not maintainable either in law or on facts and hence, the same is liable to be dismissed in limine. The suit filed for the relief of partition and separate possession of share in the suit 34 O.S.No.1812/1997 schedule 'A' & 'B' properties against the defendant Nos.1 to 6. Subsequently the said suit so filed came to be dismissed for non prosecution in the year 2009. Thereafter the Plaintiff No 2 has got the above suit restored by filing a Civil Misc petition. Thereafter, the Plaintiff No.2 filed an application under Order VI Rule 17 seeking amendment of the plaint. The Plaintiff No. 2 sought amendment to include the suit Schedule C property which is the self acquired property of the Plaintiff No 1. The Plaintiff No 1 (Now the Defendant No
7) filed his objections to the said IA. This Courrt has allowed the said application and permitted the Plaintiff No 2 to amend the plaint. Thereafter, the Plaintiff No 1 filed an application for transposing himself as defendant No.7 to enable him to file written statement as against the claim of the Plaintiff No 2 in the suit Schedule C which is the self acquired property of this Defendant. Therefore, the above written statement is 35 O.S.No.1812/1997 filed denying the averments made by the Plaintiff in suit schedule property. In so far the plaint averments made in respect of suit schedule A and B properties are concerned, this defendant supports the suit averments.
44. The Defendant No 7 submits that the averments in Para 7 and 8 of the plaint in respect of Schedule C property claiming 1/7th share is denied as not true. This Defendant has denied the averments made in para 8 A which pertains to the claim of share of the properties in so far as it pertains to Suit schedule C property. The averments in respect of para 17, 18, and the prayer pertaining to C Schedule properties are denied by this defendant as vexatious, false and misleading and the Plaintiff shall prove the same.
45. The suit Schedule C property bearing No 775. situated at Binnamangala Extension Double Road, Indiranagar 2nd Stage, is the self acquired of this Defendant, however which neither the Plaintiff nor the 36 O.S.No.1812/1997 Defendants 1 to 6 have right, title or interest. The said property was not the property of late Maharudraiah, the father nor the mother of the Plaintiff and this defendant.
46. It is submitted that the Defendant No.7 completed his MBBS from J.N. Medical College at Belgaum in the year 1970 and immediately thereafter he got employment as Member of House of the Staff of the Somerset Hospital (Intern Physician) at Somerset Hospital in Somerville, New Jersey, USA and worked there from 1st January, 1971 till January 1, 1972. The income of the defendant No7 was more than US $10,000 per annum. Thereafter this defendant worked as a Resident Physician at St Louis City Hospital from 1-1-1972 to 31-12-1972. His income was over US $ 15,000 per annum, which increased to 20.000 USD per annum. From 1-1-1973 onwards, this defendant had been working as Resident Physician at Veterans 37 O.S.No.1812/1997 Administration Hospital (Federal Government Hospital) New York, till 1991. From 1991 onwards, this defendant had been a private medical practitioner in the state of New York, USA and his practice is currently located at 2 Coraci Boulevard, Suite 11. Shirely, New York 11967, USA.
47. Thus, the Defendant No.7 has been earning and was financially independent from 1971 onwards and was earning sufficient income as a medical practitioner. The Defendant No.7 filed an application with the Bangalore Development Authority (BDA in short) in 1973 for allotment of a site. The BDA had allotted a site on Lease cum Sale basis the site bearing No. 775. Binnamangala Extension, Double Road, Indiranagar, Stage, Bangalore-38 vide registered Lease cum Sale Agreement dated 14-12-1973, registered in the Office of the Sub Registrar Gandhi Nagar, Bangalore. The BDA has also issued a possession 38 O.S.No.1812/1997 Certificate in the name of the Defendant No.7 vide MEMO dated 19-12-1973. Thereafter, the Defendant No 7 applied for permission to construct a house in the said site and the plan was also sanctioned by the BDA for construction of the house on 13-12-1974.
48. This defendant constructed the house on the 'C' Schedule Property with his own funds which included remittances from abroad. This defendant had also submitted a declaration in compliance with Section 31(4) of the Foreign Exchange Regulation Act, 1973 in respect of the immovable property i.e the suit schedule 'C' property with the Government of India. The Assistant Executive Engineer, East Sub-Division, BDA Bangalore had issued the certificate certifying that the built up area of the House bearing No 775 is 2,802 sq ft and the value of the construction is Rs. 1,40,000/-.
49. The Defendant No 7 had also executed a power of Attorney appointing his father H Maharudraiah 39 O.S.No.1812/1997 as his attorney authorizing him to lease, rent, effect repairs, and to file returns on his behalf and to operate joint account to pay tax vide the Power of Attorney dated 19-12-1979.
50. The Defendant No 7 has been in possession and enjoyment of the property ever since it was allotted to him. Subsequently, the BDA has executed a Sale Deed in favour of the Defendant No 7 through his GPA Holder i.e Prabhudeva Chigateri vide registered sale deed dated 31-12-2003. The Defendant. No 7 has become absolute owner and in possession of the said property without any interference from anybody. The suit schedule 'C' property is let out to one FAITHS TRUST, which runs a clinic by Dr. Naveen Vishveshwariah in the name and style of "Yogakshema". The plaintiff has now mad a false claim to harass this defendant. Neither the father nor the mother of the Plaintiff and this defendant acquired the 40 O.S.No.1812/1997 property in their names nor contributed their money or income to acquire in the name of this defendant. This Defendant has acquired the Suit Schedule 'C' property with his income earned as the medical practitioner. Hence, the claim of the Plaintiff is liable to be dismissed. Accordingly, the defendant No.7 prays to dismiss the suit in respect of 'C' schedule property.
51. The defendant No.6 has filed additional written statement on 21/09/2019 as under:
At the time of institution of the above Suit, there were 2 plaintiffs i.e. Sri.H.M.Thippeswamy (transposed as defendant No.7) and Smt. Sujatha Hiremath and both had claimed partitioning of the Suit Schedule-A and B properties. This defendant's grand mother had filed a detailed written statement interalia disputing the plaint averments by specifically contending that neither the Suit Schedule-A property nor the Suit Schedule-B property is available for partition. 41
O.S.No.1812/1997
52. Subsequent to the filing of the written statement, the above Suit came to be dismissed for default. Thereafter, Misc. Petition was filed and the Suit was got restored to its original file. However, since there was some conflict of interest between the Plaintiff No.1 and 2 as the 1 st Plaintiff came to know that there is no property available for partition, he chose to withdraw from the contest as Plaintiff and he admits the execution of the Will dated 05.12.1991 by Maharudraiah bequeathing the Suit Schedule A property to his daughters and grand son, the defendant No.6. In so far as the Suit Schedule B property is concerned, no such movables are available for partition. The car was sold by the mother of the Plaintiff and so far as the Gun is Concerned, the same was gifted in favor of this defendant by his grand-father during his life time. Thus, the suit Schedule-B property items are not available for partition.
42
O.S.No.1812/1997
53. It is submitted that in view of the conflict between the Plaintiff No.1 and 2, the present Plaintiff had filed an application to include the Suit Schedule-C property as if the said property is the joint family property which is available for partition. It is an admitted fact that the 7th defendant who was Plaintiff No.1 earlier, had purchased the Suit Schedule-C property out of his own earnings as he is working as a Doctor in USA and there is no contribution made by any of the parties for purchase of the Suit Schedule-C property. In fact, all the defendants have specifically stated that the Suit Schedule-C property belongs to the 7th defendant and neither the 1st Plaintiff nor any of the defendants contributed for the purchase of the Suit Schedule-C property and therefore, the Suit Schedule-C property is also not available for partition.
54. It is submitted that the Plaintiff is fully aware of the execution of the Will by her father on 05.12.1991. 43
O.S.No.1812/1997 and despite the same, the Plaintiff who is well-off and settled in America just to defame her family members and her late father, who was an Indian Administrative Service Officer and later became a member of the Karnataka Public Service Commission and had earned a good reputation in the Society, filed this suit in respect of the exclusive property earned by late Shri Maharudraiah who bequeathed the same in favor of his daughters and this defendant being his grand son and therefore, the suit of the Plaintiff is liable to be dismissed. Accordingly, defendant No.6 prays to dismiss the suit.
55. The defendant No.6 has also filed additional written statement on 11.09.2023 as under;
The plaintiffs have filed the above suit for partition and other reliefs against the defendants with respect to the suit schedule 'A', 'B' & 'C' properties. During the 44 O.S.No.1812/1997 pendency of the suit, the plaintiff No.2 amended the plaint and included the suit schedule 'C' property as per the order dated 07.01.2017 claiming that the suit schedule 'C' property is also the joint family property, but it is the self acquired property of plaintiff No.1. Therefore the plaintiff No.1 was transposed as defendant No.7. This defendant has contended that item No. 'A' was bequeathed in favour of this defendant and other defendants by his grandfather Mr.H.Maharudaiah as per per the Will dated 05.12.1991 but the plaintiff claimed that the signature on the Will is not that of H.Maharudaiah and she alleged in the plaint that she had taken opinion of finger print expert and also obtained the written opinion dated 24.09.1996 and in that written opinion, it was opined that the Will was forged and fabricated, but till date she has not examined the finger print expert and she has not produced the said opinion dated 24.09.1996 before this 45 O.S.No.1812/1997 Court and therefore the very contention of the plaintiff is false.
56. The plaintiff has filed application for amendment of plaint and added measurement to the suit schedule 'A' property. This Court has allowed the application on 14.08.2003. Subsequently, the plaintiff amended the plaint and included the measurements to the schedule 'A' property. Hence, this defendant is constrained to file additional written statement.
57. That the averments stated in the plaint pertaining to 'A' schedule property is denied as false and the plaintiff is put to strict proof of the same. The measurement to the effect that suit schedule 'A' property is having total dimension as east to west 40 ft. and north to south 60 ft., is totally false and no such measurement exists in the suit schedule 'A' property. The averments to the effect that in the suit schedule 'A; property there is ground floor, first floor and second 46 O.S.No.1812/1997 floor together with a garage is admitted as true and correct, but the measurements stated as 7200 sq. ft., super built up area is denied as false. No such measurement of built up area exists in the suit schedule 'A' property.
58. That the exact measurement of the suit schedule property is 60 X 40 Ft., Hence, the plaintiff has filed a false suit against the defendants with a malafide intention to grab the property which exclusively standing in the name of this defendant and others. The plaintiff has no manner of right over the suit schedule 'A' property. It is the self acquired property of the defendants and they are in possession of the schedule property.
59. Based on the rival pleadings of the parties and upon perusal of the records, the predecessor of this court has framed the following issues and additional issues:-
47
O.S.No.1812/1997
1. Whether plaintiffs prove the existence of suit schedule B movable properties? 2. Whether defendant Nos.1, 3, 5 and 6
prove that deceased Sri. Maharudraiah had executed a Will deed dated 05/12/1991 and bequeathed suit schedule A property infavor of defendant Nos.1, 2 and 6?
3. Whether defendant No.1, 3, 5 and 6proves that as per the terms and condition of the Will deed dated 05/12/1991 executed by late Sri. Maharudraiah defendant No.3 has paid an amount of Rs.1,50,000/- to plaintiff No.2?
4. Whether defendant No.1, 3, 5 and 6proves that defendant No.2 has put up construction in the suit schedule A property by investing Rs.3,00,000/-?
5. Whether plaintiffs are entitled to share in the suit properties and If so, to what share?
6. Whether plaintiff are entitled to the relief sought for?
7. Whether the valuation of the suit made by plaintiff for the purpose of payment of 48 O.S.No.1812/1997 court fee is proper and court fee paid on the plaint is proper and sufficient?
8. What decree or order?
ADDITIONAL ISSUE DATED 14/02/2018
1. Whether defendant No.7 proves that he is the absolute owner in possession and enjoyment of suit schedule C property bearing No.775, situated at Binnamangala Extension, Double Road, Indiranagar 2 nd Stage, Bangalore, purchased under Registered sale deed dated 31/12/2003 from BDA, is self acquired property belong to him?
ISSUE DATED 12/10/2023
1. Does the plaintiff proves that the suit property is having measurement of East West 60 feet and North south 40 feet?
60. Since the plaintiff No.1 has been transposed as defendant No.7 vide order dated 03/06/2017, the sole plaintiff has prosecuted the suit.
61. In order to prove the case of the plaintiff, the plaintiff herself has been stepped into the witness box 49 O.S.No.1812/1997 and filed affidavit in lieu of her examination in chief and got marked Ex.P.1 to Ex.P.4 documents. The GPA holder of the defendant No.7 has been stepped into the witness box and examined as DW.1 and Ex.D.1 to 14 documents are marked on his behalf. The defendant No.6 has filed affidavit in lieu of examination in chief and examined as DW.2 and Ex.D.15 to 57 documents are marked on his behalf. One independent witness by name Shankar K.C son of Late. Channabasavaiah K.G has been examined as DW.3 and Ex.D.58 and 59 documents are marked through him.
62. Having Heard the arguments of both side and upon careful perusal of the oral and documentary evidence available on record, now the findings of this court to the aforesaid issues and additional issues are as under:-
Issue No.1: As negative Issue No.2: As negative 50 O.S.No.1812/1997 Issue No.3: As negative Issue No.4: As negative Issue No.5: Affirmative in part Issue No.6: Affirmative in part Issue No.7: In the affirmative Additional Issue dated 14-12-2018:
In the affirmative Issue dated 12-10-2023: Does not arise for consideration.
Issue No.8: As per the final order, for the following;-
REASONS
63. Issue Nos.1,2, 3, 5 and additional issue dated 14/02/2018: Since all these issues are intrinsically interconnected and required to be discussed together, they are taken up together in order to avoid the repetition of the law and the alleged facts.
Initially this suit was filed by Hebbalamath M. Tippeswamy and Sujatha Hiremath for the relief of partition and separate possession of suit schedule A 51 O.S.No.1812/1997 and B properties. Subsequently, as the suit schedule C property was included by plaintiff No.2 by way of amendment dated 07/01/2017. As the suit schedule C property claims to be self acquired property of the plaintiff No.1 he himself transposed as defendant No.7 vide order dated 03/06/2017 thus the sole plaintiff has prosecuted the suit.
64. The case of the plaintiff in brief is that herself defendant No.1 to 4 and 7 are the children of H.Maharudraiah. The defendant No.5 is their mother and wife of the said H.Maharudraiah. The defendant No.6 is the son of defendant No.3. The suit schedule A and C properties are the immovable properties and B schedule property is the movable properties which are acquired by H.Maharudraiah. He died on 08/07/1992 leaving behind him the plaintiff and defendants to succeed the estate of deceased and therefore, the plaintiff and defendant No.1 to 4 and 7 are entitled to 52 O.S.No.1812/1997 1/6 share in the suit schedule properties. Hence, the present suit.
65. As stated above, the original plaintiff No.1 has been transposed as defendant No.7 vide order dated 03/06/2017. Subsequent to the transposition he files written statement contending that A and B properties shall be divided thus he supports the plaint averments to that extent. It is the case of the defendant No.7 that suit schedule C property is his self acquired property and therefore neither the plaintiff nor the defendant No.1 to 6 have any right, title or interest over the property.
66. The defendant No.5, wife of deceased H.Maharudraiah has filed the written statement on 06/09/2000 contending that H.Maharudraiah had purchased the C schedule property at his own cost in the name of his son, the defendant No.7 and constructed building by investing his own funds and 53 O.S.No.1812/1997 therefore, the said property shall be divided equally. It is contended in the written statement that suit schedule A property has been bequeathed by the said H.Maharudraiah infavor of defendant No.1, 2 and 6 by way of Will dated 05/12/1991.
67. The defendant No.1 to 3 and 6 though adopted the written statement of defendant No.5 on their behalf, the defendant No.6 files additional written statement contending that neither A nor B schedule properties are available for partition. The car was sold by the mother of the plaintiff. The gun was gifted by her grand father infavor of defendant No.6. The suit schedule C property is the self-acquired property of defendant No.7 and none of the family members contributed to purchase the said property. So far as concerned to the A schedule property, it is the case of the defendant No.6 that the said property was bequeathed infavor of defendant No.1, 2 and this 54 O.S.No.1812/1997 defendant by way of Will dated 05/12/1991.
68. Now, with this background of the case, it is to be seen whether the plaintiff is able to prove her case by preponderance of probabilities. The suit is one for the relief of partition and separate possession of suit schedule properties. The immovable property bearing No.5 measuring 40X60 feet situated at Kumara Park West, Bengaluru is the suit schedule A property. The immovable property bearing No.775 situated at Binmangala extension Indira Nagar, 2 nd Stage measuring 80X55.50 feet is the suit schedule C property. The movables including jewellary, cash and fixed deposits etc are classified as schedule B property.
69. The sole plaintiff has been examined as PW.1 and reiterates the averments of the plaint by filing affidavit in lieu of examination in chief. According to the plaintiff suit schedule A to C properties were acquired H.Maharudraiah and he died leaving behind 55 O.S.No.1812/1997 him the said properties and therefore she is entitled to 1/6 share. Initially the suit was filed only in respect of suit schedule A and B properties. According to the defendant No.1 to 3 and 6 suit schedule A property was bequeathed to defendant No.1, 2 and 6 as per the Will dated 05/12/1991. The counsel for the plaintiff has argued that the Will is a forged and fabricated document and the said Will is not at all propounded as required under law. It is further argued by the counsel for the plaintiff that only for sake of identification of signature of DW.3 the said document is marked as Ex.D.60 and therefore, the said documents cannot be accepted as a valid Will as the requirements of Sec.63 of Indian Succession Act and Sec.68 of the Indian Evidence Act is not complied with Sec.63 of Indian Succession Act provides rules as to execution of Will. Asper Sec.63 the Will has to be executed in accordance with rules stated therein. The Will shall be attested by 56 O.S.No.1812/1997 two or more witnesses as required under Sec.63(c) of the Indian Succession Act. With regard to the proof of Will, it is pertinent to have a glance at Sec.68 of the Indian Evidence Act, which deals with proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. Sec.68 reads as under:
68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence;
Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the 57 O.S.No.1812/1997 Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
70. Sec.69 of the Evidence Act provides the procedure as to proof of Will where no attesting witness found. In the instant case, now it is to be seen whether the Will is propounded and if so, the same is proved in compliance of Sec.68 and 69 of the Indian Evidence Act. No doubt, registration of the Will is optional. None of the parties have disputed the relationship between the parties. In other words, the relationship between the parties is admitted. It is also not in dispute that suit schedule A property was acquired by H.Maharudraiah but the defendant No.5 and 6 sets up Will under which the said H.Maharudraiah has bequeathed the suit schedule A property to defendant No.1, 2 and 6. Since the defendants No.1 to 3, 5 and 6 sets up Will they should prove the execution of the Will 58 O.S.No.1812/1997 in accordance with law. Ex.P.1 is the death certificate of H.Maharudraiah which discloses that he died on 08/07/1992. The death of H.Maharudraiah is not in dispute. Ex.P.2 is the Encumbrance certificate in respect of A schedule property. The plaintiff is claiming share in the suit schedule properties. Initial burden of proving the same lies on the plaintiff as per Sec.101 and 102 of Indian Evidence act. Since none of the parties have disputed the fact that the suit schedule A property was acquired by H.Maharudraiah during his life time, and on account of the fact that the defendants sets up the Will dated 05/12/1991, its for the defendants to prove the Will. PW.1 in the cross examination dated 15/06/2008 admits the suggestion that an expert opinion on the Will has been obtained and the signature of the testator was traced and forged. A suggestion was put forth to the witness to the effect that the plaintiff has obtained the opinion of 59 O.S.No.1812/1997 Mrs.C.V. Jayadevi who is the Handwriting expert on the basis of the original Will brought by the defendants. But witness denies the suggestion that he obtained an expert opinion to suit his case on the basis of the xerox copy of the Will. As could be seen from Ex.D.60, though it is attested by two witnesses, the Will is neither propounded nor examined the attesting witnesses. Whether the attestors of the Will are alive or not is also not known. It is suffice to discuss here that the evidence of DW.3 who is the son of one of the alleged attestors. He files affidavit stating that his father Channabasavaiah and testator - H.Maharudraiah are friends and upon the request of the defendant No.6 he identified the signature of his father. He was subjected to cross examination by the counsel for the plaintiff. In the cross examination he deposes that he has not seen the Will referred to in his examination in chief affidavit. Since he identifies the signature found in 60 O.S.No.1812/1997 the Will as that of his father, the document came to be marked at Ex.D.60 and the signature of his father is marked as Ex.D.60 (a). At the fag end of the evidence the said Will came to be marked through DW.3. Even the attesting witness has not identified the signature of the testator. Sec.69 of the Indian Evidence Act mandates that if no such attesting witness can be found, it must be proved that the attestation of one attesting witness at-least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. On plain reading of Sec.69, it is crystal clear that proof of attestation and handwriting of attesting witness and testator of the Will is mandatory to use the said Will as piece of evidence. In the instant case, DW.3 has not identified the signature and handwriting of the testator, which is mandatory in nature. Mere identification of the signature of the attesting witness by itself is not 61 O.S.No.1812/1997 sufficient to prove the execution of the Will. In the case on hand, the plaintiff strongly denied the very execution and signature of the testator. When the very execution and the signature of the testator is seriously disputed it is for the propounder of the Will to prove the same by adducing cogent and convincing evidence, which is not done in the case of hand.
71. Since the Will comes into force subsequent to the death of testator, heavy burden is casted on the propounder to prove its due execution. As could be seen from the averments of the plaint it appears to this court that the plaintiff has obtained opinion of the expert and the said expert has opined that the signature of the testator is traced and forged. But none of the parties have produced the said opinion report. The defendants have not chosen to examine the attestors of the alleged Will. Ex.D.15 to 18 would go to show that the katha of the A schedule property stands 62 O.S.No.1812/1997 in the name of defendant No.1 to 3. Ex.D.19 to 57 are the tax paid receipts pertaining to suit schedule A property. As discussed herein above, father of the plaintiff has died on 08/07/1992. Admittedly, the parties are Hindus and Governed by Mithakshara School of Hindu Law. Though the defendants sets up the Will dated 05/12/1991, the same is not proved as required under Sec.68 and 69 of the Indian Evidence Act. As per Sec.8 of Hindu Succession Act 1956, when a male Hindu dies, his children being the class-1 legal heirs entitled to succeed the estate of the deceased. Admittedly, the defendant No.5 has died on 31/07/2013. The plaintiff and defendant No.1 to 4 and defendant No.7 being the class-1 legal heirs of deceased H.Maharudraiah equally entitled to the share in suit schedule A property.
72. With regard to the suit schedule B properties, it is suffice to discuss here that the said properties are 63 O.S.No.1812/1997 movables. In the cross examination of PW.1 he admits the suggestion that there are no documents to show that the suit schedule B properties belongs to herself and defendant No.1 and 2. The plaintiff has placed reliance on Ex.P.2 to 4 documents. The said documents pertaining to A and C schedule properties. In other words, absolutely no document is forthcoming to show the existence of suit schedule B properties. Per contra, defendant No.6 has pleaded that the movable properties i.e fiat car was sold by the mother of the plaintiff during her life time. Similarly, defendant No.6 has contended that gun was gifted by the mother of the plaintiff infavor of defendant No.6 who is none other than her grand son and accordingly license has been transferred into the name of defendant No.6 Plead and prove is the cardinal principal of civil law. The plaintiff has given a huge list of movables including the deposits, cash, jewellary, savings account, fiat car 64 O.S.No.1812/1997 etc but no document is forthcoming to show that the said properties are in existence and they are available for partition. Ownership of movable can be transferred by delivery possession. Hence, in the absence of cogent and convincing evidence to that effect this court cannot hold that the parties are entitled to the share in suit schedule B properties.
73. The defendant No.7 has contended that the suit schedule C property is the self-acquired property and therefore neither the plaintiff nor the defendant No.1 to 6 having any right over the said property. PW.1 has contended that the suit schedule C property was purchased by her father H.Maharudraiah in the name of the defendant No.7 and therefore, the plaintiff and defendant Nos.1 to 4 and 7 are entitled to equal share even in C schedule property. The GPA holder of defendant No.7 has been examined as DW.1 he deposed in his examination in chief that he completed 65 O.S.No.1812/1997 his MBBS graduation in the year 1970 and immediately he got employment as member of house of staff of the Somarset Hospital, New Jersey USA and started working from 1st January 1971 till January 1st 1972. His income during the said period was more than US $ 10,000/- per annum and thereafter he worked as a resident physician and he was earning $ 15,000/- per annum. Thus he was financially independent from 1971 onwards and was earning sufficient income as a medical practitioner. He further deposes that he filed an application with Bangalore Development Authority in 1973 for allotment of site and BDA had allotted site on lease cum sale basis. Site No.775 was allotted to him under the registered lease cum sale agreement dated 17/12/1973 possession certificate was given in the name of defendant No.7 and it is on 13/12/2003 the suit schedule C property was conveyed under registered sale deed thus defendant No.7 became 66 O.S.No.1812/1997 exclusive owner in possession of the said property and therefore neither the plaintiff nor the defendant No.1 to 6 are having any right over the said property.
74. The counsel for the plaintiff has placed reliance on the ruling reported in (2021) 11 SCC 209 in the case of Kavita Kanvar V/s Pamela Mehata and others wherein the Hon'ble Supreme Court has reiterated the principal's governing adjudicatory process concerning proof of Will. In a ruling reported in (2013) 9 SCC 152 in the case of Vathsala Manickavasagim and others V/s N. Ganesan and another wherein it is held that when a particular property claims to be the exclusive property of the defendant, the onus is on the defendant to prove it. He also placed reliance on a ruling reported in (2018) 16 SCC 645 wherein the Hon'ble Supreme Court has reiterated the circumstances under which presumption of joint family property does arise. He also placed 67 O.S.No.1812/1997 reliance on yet another ruling reported in 2014 SCC Online KAR 12585. This court has meticulously perused the rulings cited supra.
75. PW.1 in the course of cross examination dated 15/06/2018 admits that the defendant No.7 started working from 1971 as medical practitioner. Similarly, in the course of cross examination dated 10/09/2018 she admits that there is no document to show that her father has contributed his own funds for purchasing the land and constructing the house in 'C' schedule property. She pleaded ignorance as to the income whether the defendant No.7 was earning $ 9,000/- per year. In the cross examination dated 10/09/2018 she clearly admits that her father has not given any money to defendant No.7 while purchasing C schedule site. Ex.D.1 to 4 documents makes it clear that the defendant No.7 had been to the abroad i.e USA and started earning from 1971. Ex.D.6 would go to 68 O.S.No.1812/1997 show that the possession of the C schedule property was delivered to the defendant No.7 in the year 1973. Ex.D.8 is the registered sale deed dated 30/12/2003 executed by the BDA infavor of defendant No.7. There is recital in Ex.D.8 sale deed that the possession of the said property was given to him under lease cum sale agreement dated 17/12/1973 and under the said document a sum of Rs/12,827/- has been paid by the defendant No.7. Ex.D.12 is the letter issued by US Department of Vetrans affairs which discloses the income of defendant No.7. Ex.D.13 is the lease cum sale agreement dated 17/12/1973 executed by the BDA infavor of defendant No.7. Ex.D.14 letter issued by the Chartered Accountant further depicts the financial stability of defendant No.7 which discloses that the defendant No.7 started working as medical practitioner from January 1971 and his annual salary was $ 9,000/- and his annual salary during 1976 was $ 30,000/-. The 69 O.S.No.1812/1997 suit schedule C property was purchased for Rs.12,827/-. All the documents including registered sale deed stands in the name of defendant No.7. PW.1 in the course of cross examination unequivocally admits that her father i.e H.Maharudraiah has not contributed any money while purchasing the suit schedule C property by defendant No.7. The unequivocal admissions made by PW.1 in the course of cross examination coupled with documentary evidence of the defendant No.7, makes it clear that the defendant No.7 has purchased the suit schedule C property from his own earning and income. In other words, neither deceased H.Maharudraiah nor defendant No.1 to 6 contributed to purchase the suit schedule C property by the defendant No.7. That apart, neither the plaintiff nor the defendant No.1 to 6 produced a single piece of document to show that the property was purchased by the father of the plaintiff in the name of 70 O.S.No.1812/1997 defendant No.7. Hence, in the absence of cogent and convincing evidence this court cannot hold that the said property was purchased from the contribution of deceased H.Maharudraiah in the name of defendant No.7. Hence, this court is of the considered opinion that the suit schedule C property is exclusive and absolute property of defendant No.7 and except defendant NO.7 none of the parties to the suit are having right over it. Therefore, issue No.1 to 3 are answered as negative, issue No.5 partly affirmative and additional issue dated 14/02/2018 is answered in the affirmative.
76. Issue No.4:- The defendants have failed to prove the alleged Will dated 05/12/1991. In other words, the Will is not proved as required under Sec.68 of the Indian Evidence Act. The plaintiff and defendant No.1 to 4 and 7 being the class-1 legal heirs of deceased entitled to the share in suit schedule A property. The defendants have not produced any 71 O.S.No.1812/1997 document to show that they have invested a sum of Rs.3,00,000/- to put up construction in the suit schedule A property. Plead and prove is the cardinal principal of civil law. The defendants neither produced the documents nor examined any witnesses to show the alleged investment to put up construction in the suit schedule A property. Hence, this court is of the considered opinion that the issue No.4 has to be answered as negative. Accordingly, the same is answered as negative.
77. Issue dated 12/10/2023:- As could be seen from the schedule to the plaint, the suit schedule A property is measuring about east to west 40 feet and north to south 60 feet. The defendant No.6 in the additional written statement contended that the exact measurement of A schedule property is east to west 60 feet and north to south 40 feet. The existence of the suit schedule A property is duly proved however, no 72 O.S.No.1812/1997 document is forthcoming to show the exact measurement of the A schedule property. As could be seen from oral evidence, none of the parties have posed questions with regard to the measurement of the suit schedule property. In other words, none of the parties have contested the said issue. That apart the exact measurement and physical topography of the property has to be seen in the final decree proceedings. Hence, this court is of the considered opinion that the said issue need not be considered in the preliminary decree. Hence, does not arise for consideration. Issue dated 12/10/2023 is answered accordingly.
78. Issue No.7:- This issue is with regard to the valuation of the suit and payment of court fee. The suit is one for partition and separate possession of the suit schedule property. It is settled position of law that possession of one co-sharer is possession of all 73 O.S.No.1812/1997 co-sharers in a suit for partition. The plaintiff has valued the suit under Sec.35(2) of Karnataka Court Fee and Suit Valuation Act. There is abundant pleadings as to the joint possession and enjoyment of the suit schedule properties. The Hon'ble High Court of Karnataka in a ruling reported in ILR 2014 KAR 3707 in the case of Sri. Sampangi Gowda and Others V/s Sri. Mudanna and Another it is held that to take the case out of Sec.35(2) there should be a clear and specific averment in the plaint that the plaintiff has been excluded from joint possession. In the instant case, the plaintiff has specifically pleaded the joint possession. Hence, this court is of the considered opinion that whatever the valuation made and court fee paid by the plaintiff under Sec.35(2) of Karnataka Court Fee and Suit Valuation Act is proper and sufficient. Accordingly, issue No.7 is answered in the affirmative. 74
O.S.No.1812/1997
79. Issue No.6:- This suit is filed seeking partition and separate possession of 1/6 share in suit schedule A, B and C properties. In view of the above discussion and the findings on the above issues this court has arrived at the conclusion that the parties are entitled to the share only in suit schedule A property. In other words, the very existence of B schedule property is not proved by the plaintiff. This court while answering the additional issue dated 14/02/2018 it is held that the defendant No.7 is the absolute owner in possession of suit schedule C property. In other words, the plaintiff and other defendants have not entitled to the share in suit schedule B and C properties. Hence, issue No.6 is answered in the affirmative in part to the effect that the plaintiff and defendant No.1 to 4 and 7 are entitled to 1/6 share only in the suit schedule A property.
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80. Issue No.8:- In view of the foregoing discussion on the above issues and additional issue and findings thereon, this court proceeds to pass the following;
ORDER The suit of the plaintiff is hereby decreed in part with costs as under;
The plaintiff and defendant No.1 to 4 and 7 are entitled to 1/6 share in the suit schedule A property.
Since defendant No.2 and 3 are dead their respective legal representatives are entitled to the share allotted to them The suit of the plaintiff in respect of suit schedule B and C properties is hereby dismissed.
Draw preliminary decree
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accordingly.
Call this matter on 28/10/2024 for
taking steps under Order 20 Rule 18
of C.P.C for final decree proceedings. (Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 13th day of September, 2024.) (DODDEGOWDA.K) XLIV ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side :
PW.1 Mrs. Sujatha Hiremath
List of documents exhibited on behalf of :
Defendant's side :
DW.1 Prabhudeva J. Chigater
DW.2 C.S. Nagaraja
DW.3 Shri Shankar K.C
(b) Plaintiff's side :
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Ex.P.1 Death certificate
Ex.P.2 Encumbrance certificate
Ex.P.3 Form No.15
Ex.P.4 Form No.16
(a) Defendants' side :
Ex.D.1 Work certificate issued by Ventnor
Foundation, New Jersay , USA
Ex.D.2 Letter dated 18/02/1975 issued by
the Veterans Administration Hospital Ex.D.3 Letter dated 3/03/1975 issued by the Veterans Administration Hospital Ex.D.4 Letter dated 29/07/1983 issued by issued by the Veterans Administration Medical center.
Ex.D.5 Original power of attorney dated
5/8/1995
Ex.D.6 Letter issued by BDA dated
19/12/1973
Ex.D.7 Approved plan
Ex.D.8 Original sale deed dated 30/12/2003
Ex.D.9 Estimation issued by Revenue
Officer, BDA
Ex.D.10 Original power of attorney dated
19/12/1979
Ex.D.11 Salary certificate of father of
defendant No.7
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Ex.D.12 Letter dated 13/11/2018 issued by
department of Veterans affairs
Ex.D.13 Certified copy of lease cum sale
agreement dated 14/12/1974
Ex.D.14 Letter issued by Charted Accountant
in favour of defendant No.7
Ex.D.15 to Uttara pathra
18
Ex.D.19 Tax paid receipt
Ex.D.20 Acknowledgment
Ex.D.21 & 22 Receipts
Ex.D.23 Tax paid receipt
Ex.D.24 to Receipts
30
Ex.D.31 to Self assessment of property tax
34 challen
Ex.D.35 Acknowledgment for the year 2015-
16
Ex.D.36 Acknowledgment for the year 2013-
14
Ex.D.37 Acknowledgment for the year 2014-
15
Ex.D.38 Acknowledgment for the year 2012-
13
Ex.D.39 to Receipts
45
Ex.D.46 Property tax challen
Ex.D.47 Acknowledgment
Ex.D.48 challen
Ex.D.49 to Tax depositors copy
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51
Ex.D.52 Receipt
Ex.D.53 & 54 Tax paid receipts
Ex.D.55 Receipt
Ex.D.56 Tax paid receipts
Ex.D.57 Tax depositors copy
Ex.D.58 Notarized copy of passport and one
Channabasavaiah Kuchangi Gubaya
Ex.D.59 Original passport of Late Kuchangi
Gubbaiah Chennabasaviah
Ex.D.60 As the witness identified the
signature of his father, thus the
document is being marked
Ex.D.60(a) Signature of the father of the witness
identified.
XLIV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
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