Bangalore District Court
Shashikala vs Prasad N on 22 January, 2026
KABC010128942023
IN THE COURT OF THE XLI ADDL.CITY CIVIL AND
SESSIONS JUDGE : AT BANGALORE [CCH-42]
:PRESENT:
SMT. SUMANGALA CHAKALABBI, B.A. LL.B. (Hons.), LL.M.
XLI Addl. City Civil and Sessions Judge,
Bengaluru
Dated this the 22nd day of January 2026
O.S.No. 3134/2023
PLAINTIFF : Smt.SHASHIKALA
Aged About 59 years,
D/o. Sri.S.L.Narayana Murthy
Residing at no.84 & 85,
Sirki Apartments,
Building no. 1535,
Ground Floor,
Near Krishna Mandir
KHB Colony,
Satalite Town, Kengeri,
BANGALORE-560 060
(By Sri. Vasudeva Iyengar K.T., Advocate)
V/s.
DEFENDANTS : 1. Sri.N.Prasad,
S/o.Sri. Sri.S.L.Narayana Murthy
Aged 57 years,
Residing at no.142,
21st Main 19th Cross,
Behind Maruthi Bande,
O.S. No.3134/2023
2
Vijayanagara,
BANGALORE-560 040
2.Rajath N.Prasad
S/O.Sri.N.Prasad,
Aged year, 25 years
Residing at no.142,
21st Main 19th Cross,
Behind Maruthi Bande,
Vijayanagara,
BANGALORE-560 040
3 M/s Life Insurance Corporation of India,
Reptd by its Authorised officer,
P & G Section,
Corporate office,
Opposite Corporation Office, BBMP,
Bangalore.
(D.1 & 2 by Sri J.S.D.Advocate)
(D.3 By Sri. M.K.L., Advocate)
Date of Institution of the Suit: 22.05.2023
Nature of the suit
(Suit on Pronote, suit for Suit for Declaration
declaration & possession, suit and Partition
for injunction)
Date of commencement of 07.12.2024
recording of evidence:
Date on which the Judgment 22.01.2026
was pronounced:
Total Duration: Year/s Month/s Day/s
02 08 00
O.S. No.3134/2023
3
JUDGMENT
The Plaintiff has filed this suit against the defendants for the relief of partition and separate possession of plaintiff's ½ share in the suit schedule properties and so also for the relief of declaration that the Gift deed executed by Sri S.L.Narayana Murthy in favour of defendant No.2 namely Rajath N Prasad Document No.VJN-1-05020-2020- 21 of book I CD NO. VJND 705/17.12.2020 is not binding upon the plaintiff.
SCHEDULE PROPERTIES ITEM NO.1 All that piece and parcel of Property no. Flat no.142, Block no.VI BBMP, New Katha no. 142/22-2 BMP old Katha no.1/2, PID NO.35-5-142/22. 2, situated at Extension Magadi Chord Road, Marenahalli, 19th Cross, Bangalore North Bangalore, now coming under jurisdiction of BBMP Limits, BBMP Ward no.35, Bangalore, totally measuring 440 sq.feet Bounded on -
East: by KHB Common open space and Road, O.S. No.3134/2023 4 West: by KHB Common open space North: by Tenant no.141 South: by Tenant no.143 The schedule property consist of Second floor 4 square RCC Roofed house, Constructed with bricks and cement, jungle wood door, and windows with all basic civic amenities.
ITEM NO.2 All that piece and parcel of Property no. property no.
no.132, katha no.584/132, Converted sy.no.79/2,79/10,82/2. 79/8 82/2, AND 72/16, 79/5, 79/1, AND 79/2 Of Arasinakunte Village, Kasaba Hobli, Nelamangala Taluk, Bangalore District, measuring 2692 sq.feet Bounded on -
East: by Property of Muniyappa West: by Road North:by Site no.131 South:by Site no.133 O.S. No.3134/2023 5 ITEM NO 3 All the piece and parcel of movable properties silver articles viz, 1 no. Silver eating plate, 1 no. Chombu weighing 500 grams, 6 big tumblers weighing 600 grams and gold ornaments viz., 5 pair Golden bangles, with 124 grams 2 v pairs Ear Studds, of 10 grams, 1 golden chain 22 grams; articles weighing 500 grams viz, copper chombu and other articles weighing brass BENGAL RECEIV 500 grams and Brass house-hold articles weighing 4 Kilograms are all MAY 20 possession of first defendant in item no.1 of suit schedule.
ITEM NO 4 All the piece and parcel of movable property viz, Rs.50,000/- Investment made by Late Sri. Sri.S.L.Narayana Murthy with the P & G Section of M/s Life Insurance Corporation of India, Corporate office, Opposite Corporation Office, BBMP, Bangalore, with Annuity certificate no.30- 0464.
O.S. No.3134/2023 6
2. It is the case of the plaintiff that, the Plaintiff and the defendant are the daughter and son of One Sri. S.L.Narayana Murthy, and Smt. Leelavathi. The second defendant is the son of the first defendant. The third defendant is the life insurance corporation, in which the father of the plaintiff and 1 st defendant had made investment in item 3 of the suit schedule property. It is further submitted that, Sri.S.L.Narayana Murthy died on 16.04.2023 at Bangalore and the mother of the plaintiff namely Smt. Leelavathi, died on 21.6.2010. The father of the plaintiff died leaving behind the suit schedule properties and after the death of Sri.S.L.Narayana Murthy, the plaintiff and defendant No.1 are entitled for half share in the undivided schedule properties.
It is the claim of the plaintiff that, Sri. S.L.Narayana Murthy, had acquired the item no.1 of the suit schedule property measuring 440 sq.feet, and another property described in item no.2 of the suit schedule property under the registered sale deeds and therefore, they are his self O.S. No.3134/2023 7 acquired properties. It is the further claim of the plaintiff that her father had executed a gift deed in favour of the 2nd defendant on 21.12.2020 and the same was canceled on 12.6.2022 by way of registered deed of cancellation deed on 14.6.2022. According to the plaintiff Sri. S.L.Narayana Murthy felt that the properties should be divided amongst the plaintiff and first defendant and therefore, he had executed cancellation deed of gift deed in respect of the gift deed dated 21.12.2020 with respect to item Nos.1 and 2 of the suit schedule properties and now these properties constitute the absolute properties of her father in which the plaintiff and the 1 st defendant are entitled for half share.
It is also contended that gift deed executed by her father in favour of the 2nd defendant on 17.12.2020 vide document No. No.VJN-1-05020-2020-21 of book I CD NO. VJND 705/17.12.2020 is not binding on the plaintiff. According to the plaintiff S.L.Narayana Murthy had also acquired movable properties in the form of gold, silver and O.S. No.3134/2023 8 copper articles which are more than Rs.25 Lakhs as described in item No.3 of the suit schedule properties, but the said movable assets are in the possession of the 1 st defendant after the demise of S.L.Narayana Murthy. The plaintiff being the daughter of S.L.Narayana Murthy is entitled for ½ share in the schedule properties.
The father of the plaintiff had invested Rs.50,000/- with P & G Section of M/s. Life insurance Corporation of India with Annuity Certificate No.30-0464, the 3 rd defendant herein. The said sum is fetching annuity amounts. The said amount is being reaped by the 1 st defendant to the exclusion of the plaintiff, but the plaintiff is entitled for ½ share in the said amount. Inspite of plaintiff being entitled for ½ share in the schedule properties, the defendants have refused to affect partition. When the plaintiff demanded partition in the suit items and she ultimately realized about the fraud played by the defendants. It is also averred that S.L.Narayana Murthy has executed a Will on 12.06.2022 bequeathing ½ share in O.S. No.3134/2023 9 each of the items of the plaint schedule properties in favour of the plaintiff and the 1st defendant and thus, the plaintiff has sought to decree the suit.
3. The defendant No.1 ad 2 have have filed written- statement denying the plaint averments. The defendants have admitted the relationship as pleaded by the plaintiff. In para No.7 of the written-statement the defendants have categorically admitted that item Nos.1 and 2 of the suit schedule properties are the self acquired properties of S.L.Narayana Murthy. But the averment that item Nos.1 and 2 were gifted in favour of the 2 nd defendant by coercion on 20.01.2020 is categorically denied. The defendants have further contended that the gift deed executed on 21.12.2020 has been cancelled on 12.06.2022 through a registered deed of cancellation in respect of item No.2 of the suit property only. It is contended that the father of the defendant No.1 had executed a gift deed dated 21.12.2020 in respect of item No.2 of the suit property out of natural O.S. No.3134/2023 10 love and affection and therefore, the plaintiff pressurized S.L.Narayana Murthy to cancel the gift deed and S.L.Narayana Murthy acting on the said force canceled the gift deed. The contention of the plaintiff that S.L.Narayana Murthy felt that the property should be divided between the plaintiff and the 1st defendant and therefore, he executed a deed of cancellation in respect of item Nos.1 and 2 of plaint schedule properties on 12.06.2022 and thereby he became the absolute owner of the said properties is vehemently denied. The defendants have denied the existence of item no.3 of the suit property and in so far as the item no.4 of the suit property is concerned the defendants have admitted the existence of item no.4 but it is averred that the S.L.Narayan Murthy had nominated the first defendant as his nominee and therefore he alone is entitled to the benefits. In para No.12 of the written-statement it is averred that S.L.Narayana Murthy during his lifetime executed a Will on 12.06.2022 bequeathing item No.2 of the suit schedule property between the plaintiff and the 1 st and O.S. No.3134/2023 11 therefore, the plaintiff and the 1 st defendant had acquired right in respect of the said property in respect of half share. The defendants have further averred that the plaintiff is already owning a flat at Shirki Apartments at Kengeri, which is worth Rs.1 Crore. The plaintiff has not disclosed about the said fact in the plaint. According to the defendants, the plaintiff had got the said property with the financial assistance of her father. The plaintiff had no issues and she is a retired teacher. The plaintiff had taken away all the jewels and golden bangles of her mother when she was residing with her mother. It is also averred that the marriage of the plaintiff was performed in the year 1989 by spending huge amount towards the gold ornaments which were given to the plaintiff at the time of her marriage. Later on the 2nd marriage of the plaintiff was conducted in the year 1995 for which a sum of Rs.10 Lakhs was spent by the father of the plaintiff and the 1 st defendant. On 19.02.2009 the father of the 1 st defendant was hospitalized due to heart attack. During this period the mother of the O.S. No.3134/2023 12 1st defendant was also suffering from Cancer. The 1 st defendant has provided medical treatment by spending Rs.7 Lakhs to his parents and the plaintiff has never looked after the welfare of her parents. It is further averred that from 2009, two sisters of defendant's father were also residing with the 1st defendant and they were suffering from sever illness and the 1st defendant had provided medical treatment to them by spending Rs.3 Lakhs. Further it is contneded that a sum of Rs.3 Lakhs was spent towards eye operation of father of the 1 st defendant. In 1996 the 1 st defendant spent Rs.2 Lakhs towards medical treatment of his father. It is averred that item No.1 of the suit schedule property belongs to the 2nd defendant and therefore, he is the absolute owner of the said property under the registered gift deed dated 17.12.2020. Item No.1 of the suit schedule property is in possession of the 2 nd defendant and as such, the plaintiff has no manner or right over item No.1 of the suit schedule property. It is contended that the plaintiff has herself admitted the Will executed by O.S. No.3134/2023 13 S.L.Narayana Murthy on 12.06.2022 in terms of which she is entitled for ½ share in item no,2 of the suit property and thus, sought to dismiss the suit.
The defendant No.3 has filed separate written- statement by stating that S.L.Narayana Murthy had taken Group Annuity Policy No.30-0464 through Group Superannuation Policy No.3098 of MS Widia India Limited, at the purchase price of Rs.46,243/- with mode of annuity payment as Rs.1,334/- by nominating the defendant No.1 to the said policy. It is averred that after deducting the amount of annuity the amount payable is Rs.44,909/-. As per the Annuity Master, on the death of annuitant, the Corpus amount has to be paid to the nominee as per Section 39 of Insurance Act, 1938. But the defendant No.3 has not received the death certificate of S.L.Narayana Murthy or received any claim intimation. Therefore, the defendant No.3 is ready to pay the amount payable to the person to whom it is liable to pay in term of the decision of O.S. No.3134/2023 14 this court and thus, sought to dismiss the suit against the defendant No.3.
4. On the rival pleadings of the parties, the following issues have been framed:
ISSUES
1. Whether the plaintiff proves that the gift deed executed by S.L.Narayana Murthy on 17.12.2020 is not binding on the plaintiff.
2. Whether the plaintiff proves that she is entitled for half share in the suit schedule properties.
3. Whether the plaintiff is entitled for the reliefs sought for?
4. What order or decree.
5. During the course of evidence, the plaintiff herself got examined as PW.1 and got marked documents at Ex.P.1 to P.11 and closed the evidence of her side.
On behalf of the defendants, the defendant No.2 is examined as DW.1 and got marked documents at Ex.D1 O.S. No.3134/2023 15 and D.2 and closed their evidence. Thereafter, the matter was posted for arguments.
6. Heard the arguments and perused the records.
7. My findings to the above Issues are as under:
Issue No.1 : In the Negative Issue No. 2& 3 : Partly in the affirmative Issue No. 4 : As per the final order for the following:
REASONS
8. ISSUES NO.1 to 3 :-These issues are taken together for common discussion to avoid repetition of facts and evidence.
9. The mode of acquisition of item Nos.1 , 2 and 4 of the suit schedule properties by the father of the plaintiff S.L.Narayana Murthy and the death of S.L.Narayan Murthy on 16.4.2023 are the undisputed facts of the case.
O.S. No.3134/2023 16 There is absolutely no quarrel with the fact that the suit item no.1, 2 and 4 were the self acquired properties of S.L.Narayana Murthy and further Narayan Murthy had executed a Will on 12.6.2022 in respect of the suit properties. The defendants no.1 and 2 have admitted the claim of the plaintiff in relation to item no.2 of the suit property. The contesting defendants have also categorically admitted about the investment by late S.L.Narayana Murthy with the 3rd defendant for the purchase of the Group Annuity Policy No.30-0464 with the purchase price of Rs.46,243/-.
10. According to the plaintiff, upon the death of her father she is entitled to ½ share in the suit schedule property in terms of the Will executed by her father . However it is pertinent to note that the plaintiff has neither sought the relief of declaration of her right under the said Will executed by her father nor produced the original Will during her evidence to substantiate her claim on the basis O.S. No.3134/2023 17 of Will. Therefore it is evident that the rights of the parties to the suit have to be adjudicated on the foundation of inheritance and succession, and not on the premise of the Will deed. The plaintiff has produced Ex.P.1 to P.8 in support of her case. The proceedings in Misc.No.49/2021 initiated by the father of the plaintiff against the 2nd defendant clearly reveal that the father of the plaintiff had intended to seek the relief of setting aside the gift deed which was executed by him in favour of the 2 nd defendant with respect to item No.2 of the suit schedule property. However, Ex.P.5, which is the order sheet in Misc.No.49/2021 discloses that the said Misc. Petition filed by the father of the plaintiff was withdrawn by the father of the plaintiff on 19.7.2022. The digital copy of the gift deed at Ex.P.6 reveals that the father of the plaintiff had executed gift deed in respect of item No.1 of the suit schedule property in favour of the 2 nd defendant on 17.12.2020 and the same was reflected in the encumbrance certificate at Ex.P8 . The certified copy of the O.S. No.3134/2023 18 encumbrance certificate Ex.P7 reflects the execution of the gift deed by the father of the plaintiff in respect of item no.2 of the suit property on 21.12.2020 while Ex.P3 reflects that the gift in respect of item no. 2 of the suit property was subsequently canceled through a registered deed of cancellation on 13.6.2022. The learned counsel for the defendants has got marked the copy of the deed of cancellation of gift deed executed on 21.12.2020 in respect of item No.2 of the suit schedule property at Ex.D.2. The recitals of the cancellation deed at Ex.D2 reveal that the father of the plaintiff after the initial execution of the gift deed in respect of item No.2 of the suit schedule property had got the said gift deed canceled in order to independently deal with the said property. The recitals of Ex.D.2 clearly convey that father of the plaintiff had admitted the execution of the earlier gift deed in respect of item No.1 of the suit schedule property in favour of the 2 nd defendant It is material to note that the schedule of Ex.D2 is confined to item No.2 of the suit schedule O.S. No.3134/2023 19 property only and this signifies that the cancellation of gift was executed only in respect of item no.2 of the suit property and not in respect of item no.1 of the suit property. It is further material to note that the plaintiff has also attested the deed of cancellation at Ex.D2 as one of the attesting witnesses. According to the plaintiff the gift deed executed by S.L.Narayana Murthy on 17.12.2020 is not binding on the plaintiff on two fold grounds , firstly, the deed of cancellation of gift at Ex.D2 includes item no.1 of the suit property in terms of para no.7 of the deed of cancellation at Ex.D2, and secondly the gift deed executed by S.L.Narayana Murthy on 17.12.2020 in favour of the defendant no.2 is a result of fraud.
11. It is pertinent to note that in para no.7 of the deed of cancellation at Ex.D2, it is stated that the first party to the document namely S.L.Narayan Murthy is the absolute owner of the property no. 142, 21 st Main 19th Cross, Vijayanagar, Bangalore-40, where both the parties O.S. No.3134/2023 20 above are residing. The said property has already been gifted by the first party to the second party by way of registered gift deed registered in the office of the registrar, Vijayanagar Bangalore. The said property shall remain as such with the first party . According to the plaintiff the usage of this language in the aforesaid manner at Ex.D2 was intended to cancel the gift deed in respect of item no 1 of the suit property as well and retain the said property to himself. At this stage it is worthwhile to refer to Section 94 of the Bharatiya Sakshya Adhiniyam (Section 91 of the Indian Evidence Act) provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the O.S. No.3134/2023 21 provisions herein-before contained. While Section 95 of the Bharatiya Sakshya Adhiniyam( Section 92 of the Indian Evidence Act) provides that when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1). -- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 1[want or failure] of consideration, or mistake in fact or law.
Proviso (2). -- The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3). -- The existence of any separate oral agreement, constituting a condition precedent to the O.S. No.3134/2023 22 attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4). -- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5). Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6). -- Any fact may be proved which shows in what manner the language of a document is related to existing facts.
12. It is now the case of the plaintiff that the item no.1 was also the subject matter of the deed of cancellation at Ex.D2 by virtue of the language used in para no. 7 of the deed at Ex,D2 as referred above and therefore she is entitled to the benefit of proviso (6) of Section 95 of the BSA. Mere recitals to the effect that the Vijayanagar property shall remain as such with the first party would O.S. No.3134/2023 23 not take away the effect of the operative and specific description of the subject matter provided in the schedule of the cancellation deed at Ex.D2. The statements in the body of the document merely explain the background or the intention and they cannot enlarge or alter what is specifically conveyed on the schedule. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute or an instrument in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the instrument. Where the words of a document are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule. Therefore if it is the case of the plaintiff that language of the deed of cancellation at Ex.D2 intended to include item no.1 of the suit property as well then certainly the plaintiff is O.S. No.3134/2023 24 bound to prove the said assertion with the aid of other facts. In this regard the plaintiff has not endeavoured to establish the said plea through any cogent and reliable evidence. The plaintiff has not examined the other witness to Ex.D2- Mr Neelambikar to demonstrate that the cancellation deed was intended to include even the item no.1 of the suit property. Even otherwise the father of the plaintiff never disputed the execution of the cancellation of the gift deed in relation to item no.2 of the suit property during his life time. In fact there is no material to establish that father of the plaintiff had sought for rectification of the deed of cancellation of gift for the purpose of incorporating the schedule of item no.1 of the suit property or for the execution of a separate deed of cancellation. If at all it was the intention of the father of the plaintiff to include item no.1 as well in the deed of cancellation then certainly he would have taken measures to have it canceled during his life time. The recitals of the copy of the Will executed by Narayan Swamy marked at Ex.D1 dtd O.S. No.3134/2023 25 12.6.2022 manifests that Narayan Swamy had acknowledged the execution of the gift deed in favour of defendant no.2 in relation to the item no.1 of the suit property and further he has intended it to vest with the defendant no.2 only. The further recitals of the Will reveal that the father of the plaintiff had bequeathed item no.2 to the plaintiff and defendant no.1 equally. If at all it was the intention of the father of the plaintiff to cancel the gift in respect of item no.1 of the suit property then he would not have confirmed the same in his Will . Therefore it is apparent that some typographical error might have crept in denoting the rank of the party in para no. 7 of the deed of cancellation of Gift deed at Ex.D2 and instead of stating that the Vijayanagar property shall remain with the second party namely the defendant no.2 in para no.7 of the deed of cancellation of the gift deed it was erroneously stated that that Vijayanagar property shall remain with the first party. When the father of the plaintiff had confirmed the execution of the gift deed at Ex.P6 in respect O.S. No.3134/2023 26 of item no.1 of the suit property in favour of the defendant no.2 through his Will on 12.6.2022 at Ex.D1 there was no occasion to take a different stand immediately the following day when the deed of cancellation of gift deed was executed on 13.6.2022 at Ex.D2 . The plaintiff has not challenged execution of the deed of cancellation of gift deed or the Will in her plaint and consequently the validity of these documents is accepted by the plaintiff. PW1 has admitted the execution of the Will not only in her plaint but also in her oral evidence. In fact PW1 has unequivocally admitted that her father had confirmed the gift deed executed in favour of defendant no.2 in respect of Vijayanagar property at ExD1 and further under the same document he had bequeathed item no.2 equally in favour of the plaintiff and defendant no.2. PW1 has also deposed that her father has voluntarily executed the Will and there was no force or coercion. PW1 has positively asserted during her oral evidence that the deed of cancellation was confined to item no.2 of the suit property. In the consequence the claim of O.S. No.3134/2023 27 the plaintiff that item no.1 was also the subject matter of the deed of cancellation at Ex.D2 by virtue of the language used in para no. 7 of the deed at Ex,D2 under the proviso (6) of Section 95 of the BSA is not proved by preponderance of probability. Having relied on the Will to derive the true intent of the father of the plaintiff in relation to disposition of item no.1 of the suit property by the father of the plaintiff it is now essential to determine whether the plaintiff who has pleaded about the execution of the Will is required to comply Section 67 of the Bharatiya Sakshya Adhiniyam, 2023. At this stage it is apt to refer to Section 67 of the Bharatiya Sakshya Adhiniyam( Section 68 of the Indian Evidence Act) and Section 53 of BSA which read as under:
Section 67 : Proof of execution of document required by law to be attested: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :[Provided that it shall not be necessary to call an attesting O.S. No.3134/2023 28 witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] [Inserted by Act 31 of 1926, Section 2.]
13. On a plain reading of the above provision , it is evident that the proviso is not applicable to Wills and consequently the Will cannot be used as evidence until one of the attesting witness has been called for the purpose of proving its execution. Meanwhile Section 53 of the BSA provides that no fact needs to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings . It is material to note that the said proviso of Section 67 of BSA does not state of situation where a Will is not at all in dispute and consequentially the effect of Section 58 of the Indian O.S. No.3134/2023 29 Evidence Act or Section 53 of the Bharatiya Sakshya Adhiniyam. is not taken away. In the absence of any exclusion of the applicability of Section 53 of the BSA under Section 67 of the BSA the said provision has to be given effect to by considering its true spirit and intent. Section 67 relates to those documents which require to be proved at the trial of a suit. When the provisions of Section 53 BSA categorically provide that admitted facts need not proved then Section 67 cannot be interpreted to insist on formal proof by calling an attesting witness. Section 53 has to be read as overriding Section 67 and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the present case there is absolutely no dispute with the execution of the Will by either of the contesting parties and consequentially the Will can be admitted in evidence.
14. It is also relevant to note that the recitals of the petition copy filed before the Tribunal for the Maintenance O.S. No.3134/2023 30 and Welfare of Parents and Senior Citizen Bangalore in Misc. NO. 49/2021 at Ex,P4 reveal that the father of the plaintiff has confined his relief to setting aside the gift deed in respect of item no.2 of the suit property and the said petition was ordered to be closed on account of memo filed by the petitioner/father of the plaintiff on 14.7.2022 as per Ex.P5 . During the cross examination of DW1, DW1 has denied that his grand father namely Narayan Murthy intended to cancel both the gift deeds that were executed in his favour but he manipulated his grand father only to execute one cancellation deed, this suggestion of the plaintiff itself indicates that there is a clear admission by the plaintiff that the deed of cancellation of Gift was executed only in respect of item no.2 of the suit property and it did not include item no.1 of the suit property. No material suggestions are made to establish that the deed of cancellation at Ex.D2 was executed in respect of item no.1 and 2 of the suit properties by virtue of the language used in paragraph no.7 of the deed of the cancellation. The O.S. No.3134/2023 31 entire reading of the document at Ex .D2 denotes that only the item no.2 was intended to be the subject matter of the deed of cancellation and an erroneous reference to the rank of the party cannot lead to an inference that there is a deed of cancellation even in respect of item no.1 of the suit property is not acceptable.
15. It is further pertinent to note that the plaintiff has sought the relief of declaration that gift deed executed by Narayan Murthy on 17.12.2020 is not binding on the plaintiff. Except a vague plea of fraud in paragraph no. 16 of the plaint the plaintiff has not pleaded any material facts in order to hold the said document as invalid. Order VI Rule 4 provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the O.S. No.3134/2023 32 pleading. The element of fraud alleged in the plaint must state those facts which together taken as a whole, if proved, would show and establish the same . The pleading of fraud should be conspicuous and palpable, and should not be predicated on mere suspicion and conjecture. The plea of fraud , coercion and misrepresentation being intangible and abstract facts , heavy duty is cast upon the plaintiff to plead and prove the same by cogent evidence and attending circumstances at that point of time of execution of the gift deed. In this context it is appropriate to refer to the judgment of the Apex Court in the case of C.S.Ramaswamy v. V.K.Senthil in Civil Appeal No. 500/2022 dtd. 30.9.2022, has held that mere using the word fraud as opposed to making specific averments was not sufficient to fetch a relief. Section 17 of the Indian Contract Act defines Fraud as under:
Section 17: Fraud : means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent', with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:
O.S. No.3134/2023 33
--(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2)the active concealment of a fact by one having knowledge or belief of the fact;(3)a promise made without any intention of performing it;(4)any other act fitted to deceive;(5)any such act or omission as the law specially declares to be fraudulent.
Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speaks, or unless his silence, is, in itself, equivalent to speech.
16. In the light of the above provision it was incumbent upon the plaintiff to plead the circumstances occasioning fraud with precision so as prove the element of fraud within the scope and ambit of Section 17 of the Indian Contract Act. The plaintiff has failed to provide the material details of the transaction of the gift deed executed in favour of the defendant no.2 disclosing the element of fraud on her father. It is not her case that the gift deed at Ex.P.6 was executed without the free consent of her father or the signatures of her father were forged on the said gift O.S. No.3134/2023 34 deed. When the plaintiff has not pleaded her case with respect to the allegation of fraud merely on the ground that the plaintiff has sought for the relief of declaration that the gift deed at Ex.P.6 is not binding , relief cannot be awarded. There are absolutely no averments in the plaint as to why the gift deed at Ex.P.6 in respect of item No.1 of the suit schedule property is liable to be declared as not binding on the plaintiff in as much as to demonstrate and establish the right to sue to fetch a relief of recovery of the loss. The Apex Court in A.C.B. Laminart Pvt. Ltd. vs. A.P. Agencies, Salem in the decision reported in 1989 AIR 1239, the Hon'ble Apex Court has explained the meaning of "cause of action" as follows:
" 12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all O.S. No.3134/2023 35 the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."(Emphasis supplied)
17. Therefore in the light of the above there is a complete lack of disclosure of cause of action with regard the gift deed in challenge. On an overall conspectus of the pleadings referred and discussed above it is evident that the plaintiff has failed to make out a clear cause of action with reference to the relief sought by her. Even otherwise the plaintiff has not produced any iota of evidence to substantiate the allegation of fraud. There is no material to indicate that the plaintiff has initiated criminal proceedings on account of the fraud committed by the defendants in obtaining the gift deed in favour of the defendant no.2. There is no material cross examination to O.S. No.3134/2023 36 prove the invalidity of the gift deed dated. 17. 12.2020 in respect of item no.1 . DW1 has denied that the defendants had compelled Narayan Murthy to execute the gift deed in favour of defendant no.1. Merely because the plaintiff is not the signatory of the gift deed dated 17.12. 2020 it cannot be held as invalid or not binding on the plaintiff when it is the self acquired property of the father of the plaintiff. The plaintiff did not have any pre existing right in item no.1 so as legitimately demand that the gift deed is void for want of consent. In the case of Manager, Reserve Bank of India, Bangalore vs. S.Mani, (2005) 5 SCC 100 it is held that mere pleadings of a party cannot be treated as substitute for proof. It is relevant to note that Section 104 of the Bharatiya Sakshaya Adhiniyam 2023 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 105 of O.S. No.3134/2023 37 the said Act provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. When the materials on record are examined in the background of the above provisions it is evident that there is a total lack of material pleadings and evidence on fraud and it is neigh impossible to conclude that the gift deed in favour of the second defendant in respect of item no.1 is a result of fraud and thus not binding on the plaintiff. Therefore, the plaintiff has failed to prove issue no.1 and thus the issue no.1 is answered in the negative.
18. Issue Nos.2 and 3 : It is the case of the plaintiff that the plaintiff is entitled for ½ share in the suit properties. The defendants have in their pleadings and evidence have categorically admitted that the plaintiff is entitled for her half share in respect of item No.2 of the suit property and therefore in terms of the same the question of adjudicating the claim of the plaintiff in respect of item no.2 O.S. No.3134/2023 38 of the suit property does not arise. In so far as the item no.3 is concerned , the plaintiff has pleaded that item No.3 of the suit schedule property comprising of golden ornaments, silver articles, copper and brass articles are in possession of the 1st defendant and she is entitled to half share in the same. DW1 during his cross examination has denied that the defendant no.1 has taken away the jewelry items of his grand father without giving any share to the plaintiff . DW1 has further denied that the defendants have enjoyed all the movable properties left behind by his grand father without giving any share to the plaintiff. The plaintiff has not made any endeavour to prove the existence of the said item during the course of the proceedings. No application or interrogatories are filed to prove the existence of item No.3 of the suit schedule properties. No material cross-examination is conducted on DW.1 to elicit the movable properties described at item No.3 are in possession of defendant No.1 and the plaintiff is entitled for ½ share in the said item. In the consequence the plaintiff O.S. No.3134/2023 39 has failed to prove the existence of item no. 3 of the suit property. When the existence of property is not demonstrated the question of awarding share does not arise and therefore, the suit in respect of item No.3 is liable to be dismissed. The next question is whether the plaintiff is entitled for partition in item no.4 of the suit property. The defendant No.3 has categorically and unequivocally admitted in the written-statement that Rs.44,909/- is available with it and the office is ready to pay the same as per the direction of this court. However quite contrary to the above plea the defendant No.3 in the written-statement has also pleaded that on the death of the Annuitant, the Corpus amount has to be distributed amongst the nominees under Section 39 of Insurance Act. Meanwhile the defendant no.3 has elicited from PW1 that the defendant no.1 was nominated to the said policy, however none of the defendants have produced any documents to prove that the nomination of the item no.4 property was made in favour of the defendant no.1, who is the brother of O.S. No.3134/2023 40 the plaintiff, by the father of the plaintiff. DW1 during his cross examination has deposed that he has no objections if the proceeds of item no.4 are distributed equally between the plaintiff and defendant no.1. This stand of the defendants signifies that they have waived off their defense premised on the plea of nomination and admitted the claim of the plaintiff in relation to the LIC policy. The Hon'ble High Court of Karnataka and the Hon'ble Supreme Court have clearly held that a nominee is merely a trustee and therefore, the provisions of Insurance Act cannot prevail over the Succession Act. Even if it is assumed that any nomination is made in respect of the item no.4 of the schedule property in favour of the defendant no.1 then also it cannot be concluded that the right of the legal heirs to succeed to the estate of the deceased stands defeated with the nomination. The High Court of Karnataka in Smt. Neelavva v. Chandravva and others in RFA NO. 100471/2023 relying on the the Apex Court in Shakti Yezdani and another v. Jayanand Jayant Salgaonkar and O.S. No.3134/2023 41 others (2024) 4 SCC 642 has held that the nomination so made would not lead to the nominee attaining absolute title over the subject property for which such nomination was made. It is pertinent to note that in Shakti Yezdani case, the Apex court had particularly referred to Section 45ZA of the Banking Regulation Act, 1949 and in that context also had held that nomination should not be viewed as an alternative method of succession. The judgment rendered in Shakti Yezdani sets a definitive precedent, highlighting the superiority of succession laws over corporate law provisions concerning nominees. Thus the plaintiff is entitled to half share in item no.4 of the suit property. In that light, the plaintiff has proved that she is entitled for ½ share in item no.4 of the suit property that is available with the 3rd defendant . The overall scrutiny of the materials on record reveal that the plaintiff has failed to establish her claim that the gift deed executed by S.L.Narayana Murthy in favour of the 2 nd defendant on 17.12.2020 in respect of item No.1 of the suit schedule O.S. No.3134/2023 42 property is liable to be declared as not binding on her. In the backdrop of the admission by the defendants with regard to claim of the plaintiff in respect of item no.2 of the suit property, the plaintiff is entitled to her legitimate half share in item no.2 and 4 of the suit properties on the death of Narayan Murthy under Section 8 to 10 of the Hindu Succession Act, 1956. The plaintiff and defendant no. 1 being the class I heirs under the schedule of the Hindu Succession Act, 1956 are independently entitled for 1/2 share in the suit items no.2 and 4 . Accordingly, Issues Nos. 2 & 3 are answered as partly affirmative.
19. ISSUE Nos.4 :- In view of my findings on Issue Nos.1 to 3 , I proceed to pass the following:
ORDER The suit of the plaintiff is decreed in part with costs.
The suit in respect of item Nos.1 and 3 is dismissed.
O.S. No.3134/2023
43
The relief of declaration of gift deed
executed by S.L.Narayana Murthy in
favour of the 2nd defendant on 17.12.2020 in respect of item No.1 of the suit schedule property is hereby dismissed.
The plaintiff and defendant no.1 are entitled for ½ share each in item no.2 and 4 of the suit properties .
Draw preliminary decree accordingly.
For steps under Order XX Rule 18 C.P.C.
Call on 12.04.2026.
(Dictated to the Stenographer Grade-III, transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 22nd day of January 2026).
(SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.
O.S. No.3134/2023 44 ANNEXURE List of witnesses examined on behalf of :
Plaintiff's side:
P.W.1 - Smt. Shashikala - 07.12.2024 Defendants' side:
D.W.1 - Sri Rajath N. Prasad - 03.09.2025 List of documents exhibited on behalf of : -
Plaintiff's side:
Ex.P. 1 Certified copy of death certificate of Narayana Murthy Ex.P. 2 Certified copy of sale deed dated 22.08.1995 Ex.P. 3 Certified copy of Encumbrance certificate in form no. 15 Ex.P. 4 Certified copy of order in Misc. no. 49/2021 Ex.P. 5 Certified copy of order sheet in Misc. no.
49/2021 Ex.P. 6 Digital copy of the Gift deed dated 17.12.2020 Ex.P. 7 Certified copy of Encumbrance certificate from 01.04.2020 to 01.06.2022 Ex.P. 8 Certified copy of Encumbrance certificate from 01.04.2020 to 17.05.2023 Ex.P. 9 Original house allotment letter dated 12.12.2003 Ex.P. 10 Certified copy of judgment and decree in MC no. 198/2003 O.S. No.3134/2023 45 Ex.P. 11 Certified copy of Form B register extract of the motor car of defendant no.2 Defendant's side :
Ex.D.1 Will dated 12.06.2022 Ex.D.1(a) signature of S.L. Narayana Murthy Ex.D.2 cancellation of Gift deed (SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.