Bangalore District Court
Hanumakka Alias Buddamma Dead By Lrs vs Kalamma on 15 October, 2024
KABC010050321994
IN THE COURT OF THE VII ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH-19) AT BENGALURU.
DATED: THIS THE 15TH DAY OF OCTOBER, 2024.
PRESENT: SRI.K.S.VIJAYA, B.COM, LLM.,
VII ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU.
O.S.NO.6636/1994
Plaintiff : Smt. Hanumakka @ Buddamma
W/o Late Bangalurayya
Aged about 68 years
R/at No.69, 1st Block, Thyagarajanagar,
Bangalore-560 028.
Since dead by her LRs.
1(a). Sri. B. Revanna
S/o Late Smt. Hanumakka
(W/o Late Bangalooraiah)
Aged about 64 years
R/at No.1/1, 3rd Main, 1st Block,
Nagasandra, Tyagarajanagar,
Bangalore-560 028.
Since dead by his LRs.
1(a)(i). Smt.Lakshmamma
W/o Late B.Revanna
Aged about 65 years
1(a)(ii). Sri.R.Manjunath
S/o Late B.Revanna
Aged about 44 years
2 O.S.NO.6636/1994
1(a)(iii). Sri. Umesh
S/o Late B.Revanna
Aged about 37 years
All are r/at No.1/1, 3rd Main,
1st Block, Nagasandra,
Tyagarajanagar,
Bangalore-560 028.
1(a)(iv). Smt. Renukamma
W/o Prabhakar
Aged about 48 years
R/at No.1/1, 3rd Cross, 3rd Main,
Bovi Colony, Basaveshwarnagar,
Near Carmel High School,
Bangalore-560 079.
Since dead by her LRs.
1(a)(iv)[A]. Sri.Prabhakar
S/o Papaiah
Aged about 60 years
1(a)(iv)[B]. Sri.Ravishankar
S/o Prabhakar
Aged about 30 years
1(a)(iv)[C]. Sri.Udayshankar
S/o Prabhakar
Aged about 27 years
All are r/at C/o Gangaiah,
No.52, 3rd Stage, 3rd Block,
Bovi Colony, Basaveshwarnagar,
Near Carmel High School,
Bangalore-560 079.
1(a)(v). Smt.Mangala Gowri
W/o Nagaraj
Aged about 46 years
R/at No.23/1, Ratna Garden,
Varnashi, Jinke Timmanahalli,
Bangalore-560 036.
3 O.S.NO.6636/1994
1(b). Smt. Lakshmamma
W/o Late Bangalurappa @ Venkatappa
Aged about 51 years
Since dead by her LRs.
Plaintiff No.1(c) is already on record.
1(c). Sri. Renukaiah
S/o Late Bengalurappa @ Venkatappa
Aged about 34 years
Both are r/at Doddamaranahalli,
Tavarelere Hobli, Chunchanakopa Post,
Bengalore South Taluk.
1(d). Smt. Mangalamma
W/o Late Siddappa
Aged about 51 years
R/at No.70, C/o Puttaranga,
Near Saibaba Mandir, 1st Block,
1st Main, Tyagarajanagar,
Bangalore-560 028.
1(e). Sushma D/o Late Siddappa and
W/o Shankarappa
Aged about 32 years
No.279, Bovi Colony,
Visveswaraiahnagar, Bangalore.
1(f). Ganesh S/o Late Siddappa
Aged about 31 years
R/at No.70, C/o Puttaranga,
Near Saibaba Mandir, 1st Block,
1st Main, Tyagarajanagar,
Bangalore-560 028.
1(g). Smt.Revamma
W/o Late Kalappa
Aged about 52 years
Prasannacharya Palya,
Tavarekere Hobli,
Bangalore South Taluk.
(By Sri.B.T. Mohan., Advocate)
V/S
4 O.S.NO.6636/1994
Defendants : 1. Kalamma W/o Late Ramayya
Aged about 70 years
Since dead by her LRs.
Defendants No.2(a) and 2(b), 3(a) and
3(b), 4 to 7 are already on record.
2. Gangamma W/o Late Mutturamayya
S/o Late Ramaiah
Aged about 45 years
Since dead by her LRs.
2(a). Smt. Umadevi W/o Manjunatha
D/o Late Mutturamaiah and
Smt.Gangamma
Aged about 37 years,
R/at No.525, Pantarapalya,
Janata Colony, 160th Cross,
Mysore Road, Bangalore-560 028.
2(b). Smt.Ratnamma W/o Sri.Kumar
D/o Late Mutturamaiah and
Smt.Gangamma
Aged about 27 years
R/at No.15, Sanjeevappa Lane,
Avenue Road Cross,
Bangalore-560 002.
3. Ramakrishnappa
S/o Late Mutturamayya
Aged about 26 years
Since dead by his LRs.
3(a) Smt. Manjula
W/o Late Ramakrishnappa
Aged about 32 years
3(b). Master Abhilalsh
S/o Late Ramakrishnappa
Aged about 11 years being Minor
Rep. by his mother and natural
guardian Smt.Manjula
Both are r/at Adur Village, Anekal Taluk,
5 O.S.NO.6636/1994
Bangalore District.
4. Sidda Raju S/o Late Mutturamayya
Aged about 25 years
Since dead by his LRs.
4(a). Smt. Lalithamma W/o Late Sri.Siddaraju
Aged about 38 years
4(b). Kum.Chandana D/o Late Sri. Siddaraju
Aged about 15 years
4(c). Kum.Chaitanya D/o Late Sri. Siddaraju
Aged about 13 years
4(d). Master Lokesh S/o Late Sri. Siddaraju
Aged about 10 years
Since LR No.4(b) and 4(d) are r/at
Ganakal Village, Kengeri Hobli,
Bangalore South Taluk.
5. Ramalingappa S/o Late Mutturamayya
Aged about 20 years
6. Rama Muthayya S/o Late Ramayya
Major
7. Chikkamuthayya S/o Late Ramayya
Major
Since dead by his LRs.
7(a). Smt.Rammuniamma
W/o Late Sri.Siddappa
Aged about 50 years
R/at Ramli, Tavarekere Post,
Bangalore South Taluk,
Bangalore-560 060.
7(b). Sri.Mariramaiah
S/o Late Sri.Chikkamuthayya
@ Muthaiah
Aged about 40 years
R/at Ganakal Village, Kengeri Hobli,
6 O.S.NO.6636/1994
Bangalore South Taluk.
7(c) Smt. Nagamma W/o Sri.Puttaramaiah
Aged about 45 years
R/at Chennenahalli, Kadeyakere Post,
Tavarekere Hobli,Bangalore South Taluk.
7(d). Sri.Revanna
S/o Late Sri. Chikkamuthayya
@ Muthaiah
Aged about 45 years
R/at Ganakal Village, Kengeri Hobli,
Bangalore South Taluk.
7(e). Sri.Kallaiah
S/o Late Sri. Chikkamuthayya
@ Muthaiah
Aged about 41 years
R/at Ganakal Village, Kengeri Hobli,
Bangalore South Taluk.
7(f). Sri.Ramachandra
S/o Late Sri. Chikkamuthayya
@ Muthaiah
Aged about 39 years
R/at Ganakal Village, Kengeri Hobli,
Bangalore South Taluk.
7(g). Smt. Jayalakshmamma
W/o Sri. Harish
Aged about 25 years
R/at Machohalli, Bhoopagrama Post,
Near Raghavendra Swamy Temple,
Bangalore-560 091.
No.1 to 7 are r/at Ganakallu Village,
Kengeri Hobli, Bangalore South Taluk.
8. Sri. Raghupathy S/o Muniswamappa
R/at No.141/2, Manjunatha Road,
2nd Block, Thyagarajanagar,
Bangalore-560 028.
7 O.S.NO.6636/1994
9. Sri.Nikhil.R.Shetty
S/o Sri. Raghunath.M.Shetty
No.286/6, 'Vahini', 17th Cross Road,
25th Main Road, J.P.Nagar, 6th Phase,
Bangalore-560 078.
10. Smt.Shobha.K.Shetty
No.199, 1st Block, Koramangala,
2nd Cross, Bangalore-560 034.
11. Sri. Ramamurthy S/o Sri.K.Puttaiah
No.1738, 12th Main Road,
BSK 2nd Stage, Bangalore-560 070.
12. Sri.U.Hiriyannaiah S/o Sri. Sitarama
Muttappa Colony, 2nd Cross,
Sagara Town, Shimoga District.
13. Sri.K.Vishwanath S/o S.Krishna Murthy
No.504, 8th Cross, 7th Block, West,
Jayanagar, Bangalore-560 082.
14. M/s Soma Developers
No.14, Avenue 4, Banjara Hills,
Hyderabad, Andrapradesh
PIN 500 034.
15. Sri.Doddaiah S/o Sri.Kallaiah
Ganakal Village, Kengeri Hobli,
Bangalore South Taluk.
16. Sri. Doddaiah S/o Sri.Galappa
Aged about 45 years
17. Sri. Kallaiah S/o Sri. Chikkadoddaiah
Aged about 40 years
Both are r/at Ganakal Village,
Kengeri Hobli, Bangalore South Taluk,
Bangalore.
(D1, D(a) and (b), D3, (a) and (b), D5, D6-
V.P. Advocate) (D12, D18 and D11-Exparte)
(D7(a) to (g)-V.P., Advocate) (D10-A.S.
8 O.S.NO.6636/1994
Advocate) (D9-Legal Edge)
(D13-ABB., Advocate) (D14-Kesvy and Co.)
(D15-MPK., Advocate) (D16 and 17-TMK.,
Advocate)
Date of institution of Suit 11-11-1994
Nature of the Suit Partition
Date of commencement 06-09-1996
of recording of evidence
Date on which Judgment 15-10-2024
was pronounced
Total duration Year/s Month/s Day/s
30 01 04
(K.S. VIJAYA)
VII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
JUDGMENT
The Plaintiff has initially filed this suit for the relief of Partition and Separate Possession of her ½ share in the suit schedule properties by meets and bounds, for enquiry regarding mesne profits and to declare the alienation made by the Defendant No.1 in respect of the property bearing Sy No.4/5 of Ganikallu Village, Kengeri Hobli, Bangalore South Taluk in favour of Defendant No.8 is not binding on the Plaintiff. Subsequently, by way of amendment, it was sought to declare the Sale Deed dated 14.06.1983 in respect of suit schedule property item No.1 executed by the Defendant No.1 in favour of Defendant No.8 is 9 O.S.NO.6636/1994 void and not biding on the ½ share of the Plaintiff No.1, to declare the subsequent sales made by the Defendant No.8 and by other various purchasers in respect of suit schedule property item No.1 are not binding on the Plaintiff. It is also sought for declaring the Sale Deed executed by the Defendant No.1 in respect of suit schedule property item No.2 vide registered Sale Deed dated 19.04.1996 in favour of Doddaiah and Kallaiah i.e., Defendant No.16 and 17 are not binding on the Plaintiff. Further it was sought for the declaring the Sale Deed executed by the Defendant No.1 in respect of suit schedule property item No.3 in favour of Doddaiah S/o Kallaiah i.e., Defendant No.15 is not binding on the Plaintiff. Further it was sought to declare that the Plaintiffs are entitled for ½ share in the monetary and other benefits payable by the BDA and KIADB in respect of acquisition of suit schedule properties item No.2, 3, 4, 5 and 6.
2. The brief facts of the Plaintiff's case is that the Plaintiff and Defendant No.1 are the daughters of Late Kallayya S/o Kallayya. The Defendants No.2 to 5 are the wife and children of one Late Mutturamayya, the 1st son of the Defendant No.1. The Defendant No.6 and 7 are the 2 nd and 3rd sons of the Defendant No.1. It is submitted by the Plaintiff that Kallayya had performed 10 O.S.NO.6636/1994 the marriage of the Plaintiff with one Bangalurayya, native of Nagasandra Village. He has also performed the marriage of Defendant No.1 with Ramayya of Karehalli, Bidadi Hobli. The Defendant No.1 is the elder sister of the Plaintiff. After the marriage, the Plaintiff and Defendant No.1 were living in their respective matrimonial houses. The father of the Plaintiff and Defendant No.1 was not having any male issues. The Plaintiff and Defendant No.1 were enjoying the joint family properties of their father Late Kallayya.
3. Further it is submitted by the Plaintiff that after the demise of the husband of the Defendant No.1, she left her matrimonial house along with her children and started to live in the house of her father Kallayya situated at Ganikallu Village. The said Kallayya has allowed the Defendant No.1 to live with her children in his house as the Defendant No.1 had minor children and there was no male issues to him to support.
4. Further it is submitted by the Plaintiff that her father Kallayya died intestate in the year 1971 leaving behind ancestral properties i.e., suit schedule properties and the Plaintiff and Defendant No.1 were the survivors/legal heirs of deceased 11 O.S.NO.6636/1994 Kallayya and they have succeeded to the estate of the deceased Kallayya.
5. Further it is submitted by the Plaintiff that after the demise of Kallayya, the Plaintiff and Defendants have continued in the joint and common possession of the suit schedule properties. The Plaintiff had allowed the Defendant No.1 to live in her parental house along with her children. The Plaintiff was residing in her matrimonial house. The Plaintiff and Defendant No.1 were looking after the joint family properties together. The Plaintiff used to visit Ganikallu Village at the time of need and was helping the Defendant No.1 in taking care of lands, cultivation and even during the harvest season. The Plaintiff was also doing agricultural work whenever she used to visit such properties. She herself and Defendant No.1 were dividing the crops grown in the suit schedule properties.
6. Further it is submitted by the Plaintiff that there was no partition or division of suit schedule properties between the Plaintiff and Defendant No.1 by metes and bounds. The father of the Plaintiff and Defendant No.1 Kallayya has made arrangements to distribute the suit schedule properties between the Plaintiff and 12 O.S.NO.6636/1994 Defendant No.1 equally. Before such intention was fulfilled, the said Kallayya passed away without effecting the Partition between the Plaintiff and Defendant No.1. Further it is submitted by the Plaintiff that khatha in respect of suit schedule properties are standing in the name of her father Kallayya. It is submitted by the Plaintiff that 2 years prior to filing of this suit, the Defendant No.1 and her children were not allowing the Plaintiff to participate in the agricultural activities. The Defendant No.1 got changed the documents of the suit schedule properties in to her individual name without the knowledge and consent of the Plaintiff.
7. Further it is submitted by the Plaintiff that she came to know that the suit schedule property item No.1 i.e., property in Sy No.4/5 of Ganikallu Village measuring 20 Guntas including 6 Guntas of Kharab was sold by the Defendant No.1 in favour of Defendant No.8 under the registered Sale Deed without the knowledge and consent of the Plaintiff. In order to deprive the right of the Plaintiff over the suit schedule properties, the Defendant No.1 got changed the property documents with the Revenue Department and she had also changed such khatha into the names of her children and grandchildren. 13 O.S.NO.6636/1994
8. Further it is submitted by the Plaintiff that she had demanded for Partition of the suit schedule properties by metes and bounds with the Defendant No.1. The Defendant No.1 by avoiding the responsibility did not co-operate for conveying panchayat for division of suit schedule properties and have not given the share to the Plaintiff. The Defendants were postponing demand of the Plaintiff by giving one or other reason. In the midst, son of Defendant No.1 by name Muttu Ramayya and 3rd son of Plaintiff have passed away and hence the process of partition was stalled. Later the Plaintiff had demanded for Partition and Separate Possession of suit schedule property with the Defendants, but they did not come forward to give the share of the Plaintiff. Hence the Plaintiff had filed present suit for Partition and Separate Possession of the suit schedule properties by metes and bounds.
9. Further the Plaintiff has submitted by way of amendment that the suit schedule property item No.1 was sold by Defendant No.1 to the Defendant No.8 by name Raghupathi. Such sale was effected vide registered Sale Deed dated 14.06.1983. Such Raghupathi had sold 6 Guntas of land in respect of suit schedule property item No.1 to one Nikhil.R.Shetty vide registered 14 O.S.NO.6636/1994 Sale Deed dated 27.10.1994. The Defendant No.8 has also sold the land in respect of suit schedule property item No.1 to the extent of 8 Guntas in favour of one Shobha.K.Shetty vide registered Sale Deed dated 27.10.1994.
10. Further it is submitted by the Plaintiff that the said Nikhil.R.Shetty through his GPA holder P.V.Govindacharyulu sold the site No.42 formed in suit schedule property item No.1 to the extent of 93.6 ft from East to West and 90 ft. from North to South to one K.P.Rmamurthy S/o K.Puttaiah i.e., Defendant No.11 vide registered Sale Deed dated 07.03.2003.
11. Further it is submitted by the Plaintiff that the said Ramamurthy had sold site No.42 in favour of V.Hiriyannaiah i.e., Defendant No.12 vide registered Sale Deed dated 18.07.2003. The said V.Hiriyannaiah sold the said property in favour of one K.Vishwanath S/o S.Krishna Murthy vide Sale Deed dated 24.11.2004. The said K.Vishwanath and Shobha.K.Shetty are now claiming the interest in the suit schedule property item No.1. 15 O.S.NO.6636/1994
12. Further it is submitted by the Plaintiff that such Sale Deeds in respect of suit schedule property No.1 are not binding on her.
13. Further it is submitted by the Plaintiff that the suit schedule property item No.2 measuring 13 Guntas was sold by Defendant No.1 in favour of Kalaiah S/o Chikka Doddaiah and Doddaiah S/o Galappa to the extent of 6 ½ Guntas each vide two separate Sale Deeds dated 19.04.1996. The said property to the whole of its extent i.e., 13 Guntas was acquired by the BDA. As there was dispute regarding the ownership of such property, amount of compensation was deposited in LAC No.398/2002 filed under Section 30 and 31(2) of Land Acquisition Act. Now the said compensation amount is in the judicial deposit of CCH-17.
14. Further it is submitted by the Plaintiff that in the suit schedule property item No.3 out of 1 Acre 23 Guntas, the Defendant No.1 sold 6 ½ Guntas in favour of Doddaiah S/o Kallaiah vide Sale Deed dated 19.04.1996. Subsequently, the whole 1 Acres 23 Guntas of land was acquired by the BDA and the amount of compensation was deposited by the BDA in LAC 16 O.S.NO.6636/1994 No.198/2002 filed under Section 30 and 31(A) of Land Acquisition Act.
15. Further it is submitted by the Plaintiff that she had learnt that Doddaiah had already received certain amount of compensation from BDA and submitted that Sale Deed in favour of Doddaiah executed by the Defendant No.1 is not binding on her.
16. Further it is submitted by the Plaintiff that the suit schedule property item No.4 to the extent of 1 Acre 18 Guntas was acquired by the BDA and KIADB and the amount of compensation was deposited in LAC No.248/2002.
17. Further it is submitted by the Plaintiff that the suit schedule property item No.5 to the extent of 30 Guntas was also acquired by the BDA and KIADB. The amount of compensation in respect of such acquisition is deposited in LAC No.202/2002.
18. Further it is submitted by the Plaintiff that the suit schedule property item No.6 to the extent of 34 Guntas was acquired by the KIADB.
17 O.S.NO.6636/1994
19. It is submitted by the Plaintiff that she is entitled for share in all the above said compensation amount to the extent of her ½ share.
20. Further the Plaintiff has submitted that another joint family property bearing Sy No.7/4 measuring 1 Acre 7 Guntas was not included in the suit schedule and now included as property item No.9 in the suit schedule by way of amendment and had submitted that such property was also acquired by the BDA and compensation amount in respect of such property was also deposited in the Court and prayed for ½ share in the said compensation also. Hence the Plaintiff has prayed for decreeing the suit.
21. This suit was earlier ended with Exparte Judgment dated 31.10.1996. Later Miscellaneous Petition was filed by the Defendants in Misc.No.98/1998 and in the said Petition, the Judgment and Decree passed Exparte in this suit was set-aside.
22. After setting aside the Judgment and Decree passed by this Court on 31.10.1996, the Defendant No.1, Defendant No.2(a), 2(b), 3(a), 3(b), Defendant No.5 to 7 have filed the 18 O.S.NO.6636/1994 Written statement. In the Written statement said Defendants have admitted the relationship between the Plaintiff and Defendant No.1 to 7. The specific contention of the said Defendants is that the father of Plaintiff and first Defendant by name Kallaiah S/o Kallaiah had executed a registered Will dated 16.03.1944. In the said Will it is clearly stated by the father of the Plaintiff and Defendant No.1 that Plaintiff was given her share by way of Cash and hence the father of the Plaintiff and Defendant No.1 was bequeathing the suit schedule properties in favour of the Defendant No.1. The said fact was also confirmed by the Plaintiff vide Consent Deed dated 28.12.1958. As per the said Will, there was no joint family properties existed between the Plaintiff and the Defendant No.1. The above said Defendants have specifically denied regarding the joint possession of the suit schedule properties by the Plaintiff and Defendant No.1 and enjoying the same by the Plaintiff and Defendant No.1 together.
23. Further it is contended by the above said Defendants that the father of the Plaintiff and Defendant No.1 was not died in the year 1971 as claimed by the Plaintiff, but was died on 10.04.1960. After the demise of the father of Plaintiff and Defendants by name Kallaiah in the year 1960, all the revenue 19 O.S.NO.6636/1994 records in respect of suit schedule properties were transferred into the name of the Defendant No.1. The Plaintiff was well aware of the said fact. She had not objected for transfer of such revenue records as she had executed the Consent Deed dated 28.12.1958.
24. It is specifically contended by the above said Defendants that the first Defendant, her sons and grand sons are in actual possession and enjoyment over the suit schedule properties and they were cultivating the same. It is submitted by the said Defendants that in the year 2000, the BDA had acquired some of the suit schedule properties. Award was passed regarding the compensation. In that circumstance, the LRs of the Plaintiffs herein have raised the objection regarding the payment of compensation to the Defendants. In that circumstance, the BDA had referred the matter to the Civil Court U/s 30 and 31 of Land Acquisition Act. Hence the compensation amounts were deposited in LAC Nos.198/2002, 202/2002 and 248/2002 and the same were pending before the City Civil Court (CCH-17). Those LAC matters were closed in view of Miscellaneous Petition pending between the Plaintiff and Defendants. Now the Defendants are intending to reopen the said Petitions.
20 O.S.NO.6636/1994
25. Further the above said Defendants have denied that the Plaintiff has allowed the Defendant No.1 to live in her parental house, but stated that the father of the Plaintiff and first Defendant had requested the Defendant No.1 to stay with him as he had no male issues.
26. Further the above said Defendants have also denied the participation of the Plaintiff in the agricultural activities and sharing the sale proceeds arising out of the crops given in the suit schedule properties.
27. Further it is contended by the above said Defendants that the Plaintiffs have not valued the suit U/s 35(1) of the Karnataka Court Fee and Suit Valuation Act and Court Fee paid by her is not sufficient. It is also contended by the above said Defendants that the Plaintiff by suppressing the real facts and by playing fraud on the Court had obtained a Exparte Preliminary Decree. After knowing about the said fact, the Defendants have approached the Court with the Miscellaneous Petition No.98/1998 and get closed the FDP No.24/1997 which was based on the Exparte Preliminary Decree.
21 O.S.NO.6636/1994
28. Further it is submitted by the above said Defendants that on the strength of the above said Exparte Decree, the Plaintiff got the revenue entries in respect of suit schedule properties and has raised objection in the LAC proceedings.
29. It is specifically contended by the above said Defendants that the father of the Plaintiff and Defendants had executed the registered Will dated 16.03.1944 and the Defendant No.1 had succeeded to the suit schedule properties on the strength of the above said Will. Hence the Plaintiff is not having any right title or interest much less possession over the suit schedule property and prayed for dismissal of the suit.
30. Apart from that the above said Defendants have stated that as the first Defendant was the legatee under the above said Will, had right over the suit schedule property Item No.1 and sold the same to the Defendant No.8 as stated by the Plaintiff.
31. Considering all the above said facts and circumstances, the above said Defendants have prayed for dismissal of the suit.
22 O.S.NO.6636/1994
32. After amending the Plaint by including the Para No.10(a) to 10(h), Addl. Written statement was filed by the above said Defendants. Wherein again it is claimed that the Defendant No.1 had obtained the right over the suit schedule properties by virtue of the Will dated 16.03.1944 and hence denied the contents of Para No.10(a) to 10(h) as false.
33. After claiming the right of the Defendant No.1 by way of Will dated 16.03.1944, the LRs of the Plaintiff have filed a Rejoinder U/o 8 Rule 9 of CPC and state that whether Kallaiah died on 10.04.1960 or in the year 1971 does not make any difference. The LRs of the Plaintiff have specifically denied the execution of registered Will by the father of the Plaintiff and Defendant No.1 on 16.03.1944 as claimed by the Defendants. It is contended that such Will not at all executed, registered and was brought into force. It is contended by the LRs of the Plaintiff that there was no necessity for the father of the Plaintiff and Defendant No.1 to execute the alleged Will. It is stated that the contents of the Will was engineered. The Defendant No.1 never revealed the said Will or relied upon the Will and the first Defendant has not whispered about the execution and existence of such Will before the concerned authorities, but had claimed the suit schedule 23 O.S.NO.6636/1994 properties as her ancestral properties and she was the only daughter of Kallaiah.
34. Further the LRs of the Plaintiff have denied the execution of Consent Deed dated 28.12.1958 by the Plaintiff. Such alleged Consent Deed is bad in law and the same is not legally enforceable. The alleged Consent Deed is not a registered document. It is submitted by the LRs of the Plaintiff that the Plaintiff has neither relinquished nor released her right over the half share of the suit schedule properties at any point of time. If the first Defendant was relying on the Will, there was no necessity of securing the Consent Deed as alleged by the Defendant No.1.
35. It is further submitted by the LRs of the Plaintiff that there were alienation of the suit schedule properties during the pendency of the suit and the same are hit by Lis Pendente Lite.
36. Again the above said Defendants have filed Addl. Written statement by claiming that the suit is barred by limitation and prayed for the dismissal of the suit on the said ground. 24 O.S.NO.6636/1994
37. After the demise of Defendant No.4, LRs of Defendant No.4 have also filed the Addl. Written statement adopting the above said contents of the Written statement.
38. The Defendant No.8 was placed Exparte. The Defendant No.9 to 17 were impleaded in this suit vide Orders passed on I.A.No.4 to 7 U/o 1 Rule 10(2) of CPC dated 14.03.2013. Upon service of summons, the Defendant No.9 to 17 have appeared through their respective Counsels. Among them only the Defendant No.13 and Defendant No.16 and 17 have opted to file their Written statement. The Defendants No.9 to 15 have not filed any Written statement.
39. The Defendant No.13 at the first instance has filed the Written statement denying the entire Plaint averments. It is specifically contended by the Defendant No.13 that he has purchased the property bearing Site No.42, Khatha NO.4/5 and 3/3-A1 situated at Ganikallu Village, Kengeri Hobli, Bangalore South Taluk measuring East to West - 93.6 feet, North to South - 90 feet vide registered Sale deed dated 24.11.2004 executed by the Defendant No.12. Since the date of such purchase of said property, the Defendant No.13 is continued in the possession of 25 O.S.NO.6636/1994 the said property. It is also submitted by the Defendant No.13 that his vendor's vendor had paid the Betterment Charges to the BDA in the year 2003 itself. The Defendant No.13 after getting the legal opinion, has purchased the above said property and has claimed himself as the bonafide purchaser of the above said property.
40. After the amendment of Plaint by inserting Para No.10(a) to 10(h), the Defendant No.13 has again filed an Addl. Written statement contending that the Plaintiff by way of amendment has tried to cover the lacuna in the pleadings. Further it is contended by the Defendant No.13 that as per the contents of the pleadings itself, the Plaintiff is not in possession of the suit schedule property Item No.1 and hence the Court Fee paid on the Plaint is not sufficient and prayed for dismissal of the suit on the said ground.
41. The Defendant No.13 has further stated that the first Defendant being the absolute owner of the suit schedule property Item No.1 has sold 20 guntas of land in favour of the Defendant No.8 by name Raghupathi vide registered Sale deed dated 14.06.1983. The 8th Defendant had sold 6 guntas of land in suit schedule property Item No.1 to one Nikhil R Shetty vide registered 26 O.S.NO.6636/1994 Sale deed dated 27.10.1994. The said Nikhil R Shetty is the Defendant No.9 of this suit.
42. Further it is submitted by the Defendant No.13 that the Defendant No.9 through his GPA holder by name P.V Govindacharyulu had sold the Site NO.42 formed in Survey No.4/5 and Survey No.3/3A/1 measuring East to West - 93.6 feet, North to South - 90 feet in favour of Defendant No.11 K.P Ramamurthy vide registered Sale deed dated 07.03.2003. The said Ramamurthy had sold the same property in favour of the Defendant No.12 - Hiriyannaiah vide registered Sale deed dated 18.07.2003. The said Defendant No.12 had sold the same property in favour of the Defendant No.13 vide registered Sale deed dated 24.11.2004 and since the date of such purchase, the Defendant No.13 is in possession and enjoyment of the property purchased by him formed in suit schedule property Item No.1.
43. It is further contended by the Defendant No.13 that the Plaintiff has suppressed the material fact and by misrepresenting before this Court, got Decreed the suit Exparte. Further it is contended by the Defendant No.13 that he is the bonafide purchaser and in possession of the above said property. 27 O.S.NO.6636/1994 Further he has contended that the suit schedule property Item No.1 does not exists as described in the Plaint.
44. Further the Defendant No.13 has denied all other averments made in Para No.10(b) to 10(h) and prayed for dismissal of the suit.
45. The Defendant No.16 and 17 have filed their Written statement, wherein they have contended that during the life time of the father of Plaintiff and Defendant No.1, he got Partitioned the joint family properties. Such Partition had taken place between Chikkanna, Sanyasappa, Doddagalaiah and Dyavaiah. Since the date of partition, each of such persons were living separately. It is specifically contended by these Defendants that the suit schedule property Item No.2 was standing in the name of Sanyasappa and the same was fallen to the share of Chikkanna, the elder brother of Sanyasappa. The said Chikkanna during his life time did not get transferred the Khatha of the suit schedule property Item No.2. The same was continued in the name of Sanyasappa.
46. Further the Defendant No.16 and 17 have submitted that after the death of Sanyasappa, his daughter i.e., the first 28 O.S.NO.6636/1994 Defendant got transfered the khatha into her name in respect of suit schedule property Item No.2. The said Item No.2 of the suit schedule property does not belong to the family of Sanyasappa.
47. Further it is submitted by the Defendant No.16 and 17 that after the demise of Chikkanna, his family members have continued in the peaceful possession and enjoyment over the suit schedule property Item No.2. The Defendant No.16 and 17 claimed themselves as the grand sons of late Chikkanna. It is also submitted by the Defendant No.16 and 17 that during the life time of first Defendant in order to avoid dispute and complications, a Sale deed was got executed by the first Defendant in respect of suit schedule property Item No.2 in the year 1996. Hence when there was Partition in the family of the Defendant No.1, the suit schedule property Item No.2 was not included. The Plaintiff and Defendants were aware of such fact. It is specifically stated by the Defendant No.16 and 17 that the suit schedule property Item No.2 belongs to the Defendant No.16 and 17 and hence prayed to delete the suit schedule property Item No.2 from this suit.
48. Further it is submitted by the Defendant No.16 and 17 that in the year 2001, the BDA acquired the suit schedule 29 O.S.NO.6636/1994 property Item No.2. The same was challenged by these Defendants as the said property was developed before its acquisition. Such acquisition was challenged before the Hon'ble High Court of Karnataka in W.P No.1324/2007. The same was disposed and the Hon'ble High Court of Karnataka was pleased to direct the BDA to consider the representation of these Defendants as per the connected disposed matter in W.P No.44949/2003 vide order dated 06.06.2006.
49. Further it is submitted by the Defendant No.16 and 17 that again the BDA had interfered with the possession and enjoyment of suit schedule property Item No.2 by these Defendants. These Defendants have filed a suit in O.S No.2420/2010 for the relief of Injunction. The suit schedule property Item No.2 is not a revenue land. The same is situated within the limits of BBMP and khatha is also maintained by the BBMP. Hence prayed to dismiss the suit of the Plaintiff in respect of the suit schedule property Item No.2.
50. Basing on the above said pleadings and other materials available on record, my-predecessor-in-office was pleased to frame the following issues;-
30 O.S.NO.6636/1994
ISSUES
1. Whether the Plaintiff side prove that suit schedule properties are their joint family properties ?
2. Whether the Defendants No.1 to 7 prove that Late Kalaiah had executed a Will dated 16.03.1944 in favour of Defendant No.1?
3. Whether the Plaintiff side prove that they are in joint possession and enjoyment of the suit schedule properties ?
4. Whether the Defendants No.1 to 7 prove that Plaintiff Smt.Hanumakka took her ½ share in the suit schedule properties by way of Cash and has executed a Consent Deed dated 28.12.1958 in favour of the Defendant No.1 ?
5. Whether the Plaintiff side prove that the Sale Deed dated 14.06.1983 and 19.04.1996 executed by Defendant No.1 are not binding on the share of the Plaintiffs in the suit schedule properties ?
6. Whether Defendants prove that the suit is barred by limitation ?
31 O.S.NO.6636/1994
7. Whether the Plaintiff side prove that the suit is valued properly and that the Court Fee paid is sufficient ?
8. Whether the Plaintiff side prove that they are entitled for the ½ share in the suit schedule properties ?
9. Whether the Plaintiff side prove that they are entitled for mesne profits ?
10. Whether the Plaintiff side prove that they are entitled for the relief of Partition and Separate Possession of suit schedule properties ?
11. What Order or Decree?
51. In order to prove the above said issues, the original Plaintiff by name Hanumakka got examined herself as PW.1 and got marked 12 documents in her favour as per Ex.P1 to Ex.P12. Legal representative of the Plaintiff by name B.Revanna got examined himself as PW.3 and got marked 21 documents as per Ex.P13 to Ex.P34. The legal representative of deceased P1(a) by name Manjunath.R. got examined himself as PW.3. He got marked 3 documents in his favour as Ex.P35 to Ex.P37. 32 O.S.NO.6636/1994
52. Apart from that the Plaintiff/LRs of Plaintiff got examined 2 witness on their behalf by name Hanumanthaiah and V.Jayaram as PW.2 and Ex.P4 respectively.
53. From the side of the Defendants No.1 to 7, the Defendant No.5 by name Ramalingappa got examined himself as DW.1. He got marked 18 documents on his behalf as per Ex.D1 to Ex.D18. On behalf of Defendants No.16 and 17, the Defendant No.17 got examined himself as DW.3 and got marked 31 documents as per Ex.D19 and Ex.D52.
54. Apart from that the Defendants No.1 to 7 got examined witness by name Sanjeevaiah as DW.2 and also another witness by name K.N. Nagendra Prasad as DW.4. Through the DW.4, the Defendants No.1 to 7 got marked the Ex.D15 as Ex.D15(a) to Ex.D15(c).
55. Heard arguments. After considering oral as well as documentary evidence and also after hearing arguments, my answer to the above issues are;-
ISSUE NO.1 : In the Affirmative.
33 O.S.NO.6636/1994
ISSUE NO.2 : In the Negative.
ISSUE NO.3 : In the Affirmative.
ISSUE NO.4 : In the Negative.
ISSUE NO.5 : In the Affirmative.
ISSUE NO.6 : In the Negative.
ISSUE NO.7 : In the Affirmative.
ISSUE NO.8 : In the Affirmative.
ISSUE NO.9 : In the Negative.
ISSUE NO.10 : In the Affirmative.
ISSUE NO.11 : As per final order;-
REASONS
56. ISSUE NO.1, 2 AND 4: According to the original Plaintiff Hanumakka @ Buddamma, the suit schedule properties were originally belonging to her father by name Kallayya S/o Kallayya. Her father Kallayya had no male issues. He had only 34 O.S.NO.6636/1994 two daughters i.e., herself and the Defendant No.1. Now both the original Plaintiff and the original Defendant No.1 i.e., the daughters of Kallayya S/o Kallayya are no more and the suit is contested between the legal representatives of Plaintiff and Defendant No.1.
57. None of the Defendants are disputing the relationship that exists between Plaintiff and Defendant No.1. Hence it is an admitted fact that the Plaintiff and the Defendant No.1 being the daughters of Kallayya S/o Kallayya are the sisters/siblings. Hence much discussion with regard to the relationship between the Plaintiff and Defendants No.1 to 7 is not required.
58. Further it is the case of the Plaintiff that her father Kallayya S/o Kallayya died intestate. After the demise of the said Kallayya S/o Kallayya, the Plaintiff being the daughter of said Kallayya S/o Kallayya is entitled for ½ share in the suit schedule properties.
59. Further it is the case of the Plaintiff that the Defendant No.1 though not having any exclusive right over the suit schedule properties had sold portion of the suit schedule 35 O.S.NO.6636/1994 property item No.1 in favour of Defendant No.8. In turn, the Defendant No.8 sold to Defendant No.9, the Defendant No.9 sold to Defendant No.10, Defendant No.10 sold to Defendant No.11, Defendant No.11 sold to Defendant No.12, Defendant No.12 sold to Defendant No.13. If the Plaintiff is able to prove her right over the suit schedule properties, such sale made by the Defendant No.1 in favour of Defendant No.8 and subsequent sale made by the Defendant No.8 to Defendant No.12 will not bind to the extent of the right of the Plaintiff. Further it is also the case of the Plaintiff that the Defendant No.1 had sold the portion of the suit schedule property item No.3 in favour of Defendant No.15 and sold portion of suit schedule property item No.2 in favour of Defendants No.16 and 17. With regard to this sale also, if the Plaintiff is able to prove her right over the suit schedule properties, the sale deed executed by the Defendant No.1 in favour of Defendant No.15 to 17 will not bind the right of the Plaintiff over the portion of such suit schedule properties.
60. Further it is also the case of the Plaintiff that some of the suit schedule properties such as item No.2, 3, 4, 5, 6 and 9 are acquired by the BDA and KIADB and compensation was received only in respect of suit schedule property item No.9 by 36 O.S.NO.6636/1994 the Defendants and compensation in respect of suit schedule properties in respect of suit schedule properties item No.2, 3, 4, 5 and 6 are under dispute and hence the concerned authority has deposited the amount before the Civil Court as per Section 30 of Land Acquisition Act. In the said compensation/properties also the Plaintiff is entitled for ½ share.
61. The definite case of the LRs of Defendant No.1 i.e., Defendant No.2(a), 2(b), 3(a), 3(b), 4 to 6, 7(a) to (g) is that the suit schedule properties were originally belonging to Kallayya S/o Kallayya. He has not died intestate but he had left his last Will executed on 16.03.1944. It was registered before the concerned authority. As per the said Will, the suit schedule properties were bequeathed by Kallayya S/o Kallayya in favour of deceased Defendant No.1. Hence the deceased Defendant No.1 had become the absolute owner and was in exclusive possession and enjoyment over the suit schedule properties.
62. After going through the above said facts and circumstances, now the real controversy between the parties to be decided by this Court is whether Kallayya S/o Kallayya had left any Will as claimed by the Defendants dated 16.03.1944. If the 37 O.S.NO.6636/1994 LRs of Defendant No.1 are able to prove this fact, the Plaintiff will not be having any right of partition as claimed in this suit. If the LRs of Defendant No.1 are failed to prove the execution of Will by Kallayya S/o Kallayya as claimed by them, then the Plaintiff will be having right over the ½ share in the suit schedule properties. In such circumstance, Sale Deeds executed by the Defendant No.1 in respect of suit schedule properties will not bind the right of the Plaintiff over her ½ share.
63. With this background, the available oral as well as documentary evidence are taken for discussion.
64. The Plaintiff at the first instance has claimed the relief against 8 suit schedule properties. Among them the suit schedule property item No.8 was a movable property i.e., Bullock Cart worth Rs.5,000/-. There is no material produced to prove the existence of such property in the family, hence the Plaintiff is not entitled for the relief of Partition in respect of suit schedule property item No.8.
65. Further the Plaintiff has included one more property by adding the item No.9. Hence now this Court has to decide the 38 O.S.NO.6636/1994 right of the Plaintiff over the suit schedule properties item No.1 to 7 and 9.
66. In order to prove the fact that the suit schedule properties were originally belonging to Kallayya S/o Kallayya, the Plaintiff has produced RTC Extracts in respect of suit schedule properties item No.1 to 6 as per Ex.P2 to Ex.P7. The said documents are of the year 1979-80 to 1983-84. The Ex.P2 to Ex.P7 reveals the name of Kallayya S/o Kallayya and the same was rounded off and the name of Kalamma i.e., deceased Defendant No.1 was entered in the said documents and the reasons for entering such name of Kalamma is shown as IHC No.2/1983-84. The said order of IHC No.2/1983-84 is produced in the form of Mutation Register Extract by the Plaintiff as per Ex.P1. The said documents reveal that as per the report of village accountant, the khathedar was no more and his daughter who is the sole successor has applied for Mutation of the khatha in respect of suit schedule properties item No.1 to 6 and the same was published. As objection was not received, the khatha in respect of suit schedule properties item No.1 to 6 were Mutated into the name of Defendant i.e., Kalamma. Such source of khatha is not disputed by the Plaintiff but according to the Plaintiff the 39 O.S.NO.6636/1994 Defendant No.1 had misrepresented before the concerned authority stating that she was the sole surviving member of the family of Kallayya S/o Kallayya and because of such misrepresentation, she got transferred the khahta in respect of suit schedule properties item No.1 to 6 as per Ex.P2 to Ex.P7.
67. As per the LRs of Defendant No.1, the said properties item No.1 to 6 as well as item No.9 were transferred into the name of the Defendant No.1 as she was the beneficiary of the Will executed by Kallayya S/o Kallayya.
68. The learned counsel for the Plaintiff has rightly pointed out that the claim of deceased Defendant No.1 before the revenue authorities was not on the strength of the alleged Will dated 16.03.1944.
69. In order to prove the fact that the suit schedule properties item No.1 to 7 and 9 were bequeathed by Kallayya S/o Kallayya in favour of deceased Defendant No.1, Lrs of deceased Defendant No.1 have produced alleged original Will as per Ex.D15. The Ex.D15 is not having the entire contents, 1st and 2nd page of the alleged Will is torned/mutilated and it appears that the 40 O.S.NO.6636/1994 last portion of the said Page No.1 and 2 were fixed in the middle and the middle portion of the Will does not finds place in the said record. This fact is not disputed by the Defendants, but they claim that they did not find portion of the Will and the available portion was laminated. Further the LRs of Defendant No.1 claim that the said Will was a registered Will and the missing contents of Ex.D15 finds place in the Ex.D16 i.e., the certified coy of the Will, hence there is no reason to doubt the contents present in the missing portion of Ex.D15.
70. Now the question is whether LRs of deceased Defendant No.1 prove the execution of Will by Kallayya S/o Kallayya in respect of suit schedule properties bequeathing the same in favour of Defendant No.1.
71. In order to prove the execution of Will, as per Section 63(c) of Indian Succession Act, it is necessary to prove the attestation of Will by two or more witnesses. In order to consider the said Will as evidence before this Court, it is necessary to examine at least one of the attesting witnesses as required under Section 68 of the Indian Evidence Act. If the attesting witnesses 41 O.S.NO.6636/1994 are not found, the person who is relying on such Will shall prove the Will as per Section 69 of the Indian Evidence Act.
72. In the process of proving such Will, alleged original (mutilated document/Will) was produced as per Ex.D15. The typed copy of such mutilated document is also produced and the same was also marked as Ex.D15 by my predecessor-in office. The certified copy of the said registered Will was produced as per Ex.D16.
73. I have perused the Ex.D16 Will as well as the Ex.D15 mutilated document/Will. The Ex.D15 though it is mutilated in its first and second page, page No.3 and 4 in which the signatures of the testator and alleged witnesses are present is intact. Hence I have perused Page No.3 of the Ex.D15. In the right hand side corner just above the LTM of the witness by name Dasappa S/o Hanumantharaiah of Sonnenahalli, a LTM was found said to be put by the testator Kallayya S/o Kallayya @ Sanyasappa. As the said Kallayya S/o Kallayya said to had put his LTM, the same was endorsed as LTM of Kallayya S/o Kallayya in the handwriting of the scribe of the said Will. Beneath the alleged LTM of Kallayya S/o Kallayya, LTM of the witness by name Dasappa S/o 42 O.S.NO.6636/1994 Hanumanthaiah finds place. Beneath such LTM of witness Dasappa, signature of one R.Narahariyappa finds place and description is stated as "ಬಿಕ್ಕಲಂ ವಳಗೇರಹಳ್ಳಿ ಶಾನುಭಾಗ್ R ನರಹರಿಯಪ್ಪ". Which means scribe of the Will was Shanubhag of Valagerahalli village, R.Narasimhaiah. The Ex.D15 is not revealing the signature of 2nd witness in the said document. The Ex.D15 is revealing the LTM of witness Dasappa with Roman number I on its left side. The Roman number II exists on the left side of signature of one R.Ramanna in Ex.D15. If the said person with Roman number II is considered as attesting witness, then there may be two attesting witnesses to the Ex.D15 but the said R.Ramanna is not an attesting witness to the Ex.D15 as per its contents but it is shown as "ಈ ಎಡಗೈ ಹೆಬ್ಬೆಟ್ಟಿನ ಗುರ್ತಿನ ಸಾಕ್ಷಿ ಸೊಣ್ಣೆನಹಳ್ಳಿ ಹನುಮಂತಯ್ಯನ ಮಗ ದಾಸಪ್ಪ ಹಾಕಿದ್ದಕ್ಕೆ ಬೆಕಲಂ ಬರಹ ಆರ್ ರಾಮಣ್ಣ" which means R.Ramanna is not an attesting witness to the Ex.D15 but he is a scribe for writing the description of LTM of witness by name Dasappa S/o Hanumanthaiah of Sonnenahalli. Hence neither R.Narahariyappa nor R.Ramanna are the attesting witnesses to the Ex.D15 - Will.
74. The LRs of Defendants No.1, in order to prove that R.Narahariyappa himself was the second witness to the said 43 O.S.NO.6636/1994 document have got examined one witness by name Nagendra Prasad as DW.4. The said DW.4 while examined before the Court has stated that his father's name is Narahari Rao and copy of the Will dated 16.03.1944 was shown to him by LRs of Defendant No.1 to know whether the said document was written by his father. He has deposed that after going through the said Will, he had informed the Lrs of the Defendant No.1 that the said document was not written by his father Narahari Rao but it was written by his paternal uncle by name Narahariyapa. He has further stated that his father and his paternal uncle both were working as shanbhog. In particular his paternal uncle R.Narahariyappa was working as shanbhog of Valagerehalli Village. In the cross examination of DW.4, it was elicited by the learned counsel for the Plaintiff that he has not produced any document to show that he belongs to the family of R.Narahariyappa whose signature finds place in the Ex.D15 as scribe. It is also elicited in the cross examination of DW.4 that he has not seen any of the documents written by R.Narahariyappa. He has stated in his examination in chief affidavit that R.Narahariyappa is the brother of his father but in the cross examination he has stated that the said Narahariyappa is the cousin of his brother. Hence in my opinion the evidence of DW.4 44 O.S.NO.6636/1994 will not inspire the confidence of this Court with regard to the identity of the signature of Narahariyappa who is the alleged scribe and alleged witness to the Ex.D15.
75. As per Section 68 of the Indian Evidence Act, the compulsorily attestable document, especially the Will cannot be considered as evidence unless one of the attesting witnesses is examined to prove the said document. Here in the present case as this document is of the year 1944, naturally one cannot expect to bring the attesting witness before the Court and examine them to prove the alleged Will. But pleading and proof is required in that regard. It is not stated or pleaded in the pleadings regarding the fact that the attesting witnesses are not alive or not found. Neither the death certificate of attesting witnesses are produced before the Court nor any oral evidence is tendered in that regard. In this circumstance, I am of the opinion that proving the Will as per Section 69 of the Indian Evidence Act is not a valid way of proving the same.
76. Even for the sake of discussion, it is considered that the attesting witnesses are no more, it is for the person who is relying on such document to bring valid witness to prove the 45 O.S.NO.6636/1994 signature/handwriting of the attesting witnesses. But here in the present case, as discussed above, the oral evidence of DW.4 who is said to be the relative of the scribe/attesting witness does not inspire the confidence of this Court and hence the LRs of Defendant No.1 have not proved the execution of Will i.e., Ex.D15/Ex.D16 in accordance with law.
77. Further as discussed above, the said R.Narahariyappa is not shown as attesting witness to the said document but was shown in the document as " ಬಿಕ್ಕಲಂದಾರ"/ "Scribe".
78. In this regard, I have also perused the certified copy of the Ex.D15 which is marked as Ex.D16. In the Ex.D16 also the status of R.Narahariyappa is shown as "ಬಿಕ್ಕಲಂದಾರ"/ "Scribe" the shanbhog of Valagerehalli Village. There is no recital in the Ex.D15/Ex.D16 that the said Narahariyappa was also the attesting witness to the Ex.D15. Hence in my opinion, Ex.D15 lack the legal requirement of attestation. Even if the said R.Narahariyappa is considered as attesting witness to the document Ex.D15-Will, the LRs of Defendant No.1 have failed to 46 O.S.NO.6636/1994 prove the execution of Will as required under Section 69 of the Indian Evidence Act.
79. The learned counsel for the Plaintiff has relied on the following decisions with regard to proving execution of Will.
1. AIR 19569 SUPREME COURT 443 (V 46 C56) between H.Venkatachala Iyengar V/s B.N. Thimmajamma and Others
2. ILR 2008 KAR 2115 between J.T. Surappa and Another V/s Sri.Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others
3. AIR 1990 SUPREME COURT 396 between Kalyan Singh V/s Smt. Chhoti and Others
4. ILR 2006 KAR 4213 between V.M. Neelakantaiah and Another V/s State of Karnataka by Chief Secretary and Others
5. ILR 1990 KAR 1401 between Sanjiva @ Sanjiva Bhandary V/s Vasantha
6. 2024 (1) KCCR 14 (SC) SUPREME COURT OF INDIA between Moturu Nalini kanth V/s Gainedi Kaliprasad
7. (2009) 3 SUPREME COURT Cases 687 between Bharpur Singh and Others V/s Shamsher Singh
8. Dhani Ram (died through LRs and Others V/s Shiv Singh in Civil Appeal No.8172/2009 Supreme Court of India
9. 2002 O Supreme (AP) 546 2002 4 ALD 277; 2002 4 ALT 426; 2002 3 CCC 397; 2002 2 LS 434 between Gondrala Sitha Mahalakshmi V/s Pulipati Raja Rao
10. 2015 AIR SCW 6184 SUPREME COURT between Yellapu Uma Maheswari and Another V/s Buddha Jagadheeswararao and Others 47 O.S.NO.6636/1994
11. AIR 1969 SUPREME COURT 1147 between M.L.Abdul Jabbar Sahib V/s Venkata Sastri and Sons and Others
12. ILR 2017 KAR 2555 between Sri.Ramachandra Narayan Talawar V/s Kumar Soukharya and Others
13. RSA No.2820/2010 between Nanjappa and Others V/s Somaiah and Another High Court of Karnataka DD 15.11.2012.
14. 2013 AIR SCW 2732 between M.B. Ramesh (D) by LRs V/s K.M. Veeraje Urs (D) by LRs and Others
80. The learned counsel for the Defendants No.1 to 7 has also relied on the following decisions with regard to proof of Will.
1. AIR 1994 SUPREME COURT 853 between S.P.Chengalvaraya Naidu (dead) by Lrs V/sJagannath (dead) by LRs and Others
2. ILR 2009 KAR 1524 between Shanthappa and Others V/s Channabasavaiah and Others
3. 2016 (3) AKR 755 between Subaraya M.N. V/s Vittala M.N. and Others
4. (2016) 8 SUPREME COURT CASES 705 between Subaraya M.N. V/s Vittala M.N. and Others
5. AIR 2015 (NOC) 680: 2015 (2) AKR 210 between M.Narayanamma V/s Lakshmidevi and Others
6. (2008) 14 SUPREME COURT CASES-754 between Babu Singh and Others V/s Ramsahai @ Ramsngh. 48 O.S.NO.6636/1994
81. Among the decisions relied by the leaned counsel for the LRs of Defendant No.1, the learned counsel for LRs of Defendant No.1 has highlighted the decision of the Hon'ble High Court of Karnataka reported in AIR 2015 (NOC) 680 between M. Narayanamma V/ Lakshmidevi and Others and vehemently argued stating that in case of a registered Will, benefit may be extended with regard to its proof as stated under Section 90 of the Indian Evidence Act. As per Section 90 of the Indian Evidence Act, the Court may presume certain facts with regard to the valid presentation, valid execution and valid attestation of a registered document, if such document is 30 years old document and vehemently argued stating that the Will relied by the Defendants in this case is of the year 1944 i.e., about 80 years old document and hence has prayed to draw the presumption as per Section 90 of Indian Evidence Act as observed by the Hon'ble High Court of Karnataka in the above said decision.
82. In counter to the said decision, the learned counsel for the Plaintiff has drawn the attention of this Court to the decision of the Hon'ble Apex Court (2009) 3 SCC 687 between Bharpur Singh and Others V/s Shmsher Singh. In the said decision the Hon'ble Apex Court has unequivocally stated that the 49 O.S.NO.6636/1994 presumption regarding the documents 30 years old, is not applicable to Will. As per the said decision, the benefit of drawing presumption under Section 90 of the Indian Evidence Act cannot be extended to the document Will. Hence in my opinion this Court cannot presume regarding valid registration and valid attestation of the Will unless it is proved in accordance with law.
83. The learned counsel for the Plaintiff has also drawn the attention of this Court with regard to the decision of the Hon'ble Apex Court reported in 2023 Live Law (SC) 862 between Dhani Ram (died) through LRs and Others V/s Shiv Singh wherein the Hon'ble Apex Court was pleased to hold that Will cannot be presumed to be valid merely because it is a registered one. Here in the present case also though E.D15/ExD16 is a registered Will, the same cannot be presumed as valid only because the same was registered one.
84. Further the learned counsel for the Plaintiff has also drawn the attention of this Court with regard to the decision of the Hon'ble Apex Court reported in 2024(1) KCCR 14 (SC) between Moturu Nalini Kanth V/s Ginedi kaliprasad (dead through Lrs) wherein the Hon'ble Apex Court was pleased to express that even 50 O.S.NO.6636/1994 if the other side does not deny the execution of the Will, the party relying on the Will has to prove the execution of Will in accordance with Section 63 of the Indian Succession Act and Section 68 and 69 of the Indian Evidence Act. In the said decision, it is also expressed by the Hon'ble Apex Court that for the purpose of Section 69 of the Indian Evidence Act, it is not enough to merely examine a random witness who asserts that he saw the attesting witness affix his signature in the Will. The very purpose and objective of insisting upon examination of at least one attesting witness to the Will would entirely last if such requirement is whittled down to just having a stray witness to the Will depose that he saw the attesting witness sign the Will. Here in the present case, the witness examined to prove the Ex.D15/Ex.D16 was the DW.4 who has not at all seen the writing/ signature of alleged R.Narahariyappa at all, though he claims as nephew of the said R.Narahariyappa. Hence in my opinion the Plaintiff has not proved the execution of Will as required under the law.
85. Further it is claimed by the LRs of Defendant No.1 that the Hanumakka took her ½ share in the suit schedule properties by way of cash and had executed Consent Deed dated 51 O.S.NO.6636/1994 28.12.1958 in favour of Defendant No.1. In order to prove this fact the LRs of Defendant No.1 have produced a document called as Consent Deed as per Ex.D17 and also examined one witness by name Sanjeevaiah as DW.2.
86. I have perused the Ex.D17. In the Ex.D17, it was alleged as stated by the Plaintiff that she had permitted her father to execute Will and she is not having any right over the properties stated in the Will and her minor children are also are not having any right over such property. It is also alleged as stated in the said document that she had received money from her father more than her share in the property of her father and even her father had helped her to get release her house. Hence according to the LRs of Defendant No.1, the Plaintiff had received her share in the property and she is not entitled for partition in the suit schedule properties as claimed by her. Though it is stated that the said document is a Consent Deed, the same is giving the impression of a Release Deed. There is no specific claim by the LRs of Defendant No.1 that the Plaintiff was also having right over the suit schedule properties. Hence the question of getting executed the Consent Deed as alleged by the LRs of Defendant No.1 is not having any validity in the eyes of law.
52 O.S.NO.6636/1994
87. The said document appears to have got executed to validate the alleged Will dated 16.03.1944 but the Register number of the Will, Date of the Will is left blank in the Ex.D17. Hence it cannot be presumed that the said document was with regard to the consent for Ex.D15 Will.
88. Apart from that there is no admission by the LRs of Defendant No.1 that Plaintiff was also having right over the suit schedule properties. If it is the intention of the LRs of Defendant No.1 that the Plaintiff had relinquished her right by virtue of Ex.D17, the said document is not a registered document and hence the same is not having any validity in the eyes of law as Relinquishment/Release Deed.
89. Though there is a stray statement in the Ex.D17 that father of the Plaintiff had given money value more than the value of her share in the properties owned by her father, there is no specific statement with regard to the quantum of money, the total value of the properties owned by the father etc. hence in my opinion, no sanctity can be attached to the Ex.D17 to hold that she took her ½ share in the suit schedule properties by way of 53 O.S.NO.6636/1994 cash and she had executed the document as per Ex.D17 i.e., alleged Consent Deed dated 28.12.1958.
90. As discussed above, by the Ex.P2 to Ex.P7 and Ex.P30, it is forthcoming that the suit schedule properties item No.1 to 6 and 9 were standing in the name of Kallayya. In respect of suit schedule properties, Item No.7 and 9, it is the specific defence of the LRs of the Defendant No.1 that the same were also belonging to Kallayya and he had beequethed the same in favour of the deceased Defendant No.1. As discussed above, bequeathing as per Ex.P.15 is not proved by the LRs of Defendant No.1, but the fact remained undisputed is that the suit schedule properties Item No.7 and 9 and the suit schedule properties Item No.1 to 6 are the properties of Kallayya. As per both the parties Kallayya is not alive. Though there is difference of opinion with regard to the year of death of Kallayya between the Plaintiff and Defendants i.e., 1960 and 1974, the fact of death of Kallayya is an admitted one and there is no change in legal position basing on the year of death of Kallayya, hence much discussion in that regard is not required. It is also admitted fact that the said Kallayya had two daughters. Though it is claimed that the suit schedule properties were ancestral properties of 54 O.S.NO.6636/1994 Kallayya, there is no material produced to show that the said properties were the ancestral properties of Kallayya, but it is an admitted fact that the Kallayya was the owner of the suit schedule properties.
91. Considering the fact of ownership of Kallayya over the suit schedule properties and also considering the fact of death of Kallayya, I am of the clear opinion that the deceased Plaintiff and the deceased Defendant No.1 were being the Class-I heirs of deceased Kallayya S/o Kallayya are the joint owners of the suit schedule properties and the same is considered as joint family properties of the deceased Plaintiff and deceased Defendant No.1.
92. As discussed above, though the LRs of Defendant No.1 have taken the specific contention with regard to execution of Will by Kallayya S/o Kallayya, have failed to prove the execution of such Will as required under the law. In the absence of proof of such Will and in the absence of proof of prior family partition between the Plaintiff and the Defendant No.1, I am of the opinion that the suit schedule properties are still having the 55 O.S.NO.6636/1994 characteristics of joint family properties of the deceased Plaintiff and the deceased Defendant No.1.
93. Considering all the above said discussions, I am of the opinion that the Plaintiff/LRs of Plaintiff have proved the fact that the suit schedule properties Item No.1 to 7 and 9 are the joint family properties of Plaintiff as well as deceased Defendant No.1 and hence I proceed to hold the Issue No.1 in the Affirmative, Issue No.2 and 4 in the Negative.
94. ISSUE NO.3:- As discussed above, the Plaintiff has proved that suit schedule properties Item No.1 to 7 and 9 are the joint family properties of deceased Plaintiff and deceased Defendant No.1 and as there is no proof of division of properties as claimed by the LRs of Defendant No.1 and as the LRs of Defendant No.1 have failed to prove the execution of Will dated 16.03.1944 by Kallayya S/o Kallayya, I am of the opinion that the Plaintiff is in joint possession and enjoyment over the suit schedule properties. The possession here refers not the physical possession but it is a constructive possession of the Plaintiff over the suit schedule properties. There is no dispute with regard to alienation made by the Defendant No.1 in favour of Defendant 56 O.S.NO.6636/1994 No.8 and subsequent conveyance made by the Defendants No.9 to 12 upto Defendants No.13 and 14 and there is also no dispute with regard to the fact of acquisition of suit schedule properties item No.2 to 6 and 9 by the BDA and KIADB. Even such physical possession is not with the Plaintiff and Defendants, in a suit for partition, it is the constructive possession which is to be taken into consideration and not the physical possession of the properties. In case of joint family properties, it is presumed that all the joint family members are in possession and enjoyment over the suit schedule properties unless the same has been divided between the members of the joint family in accordance with law or specifically proved ousted from possession. But there is no material evidence tendered by the LRs of Defendants No.1 in that regard. Hence I proceed to hold the Issue No.3 in the Affirmative.
95. ISSUE NO.5:- As discussed above, the suit schedule properties are the joint family properties of the deceased Plaintiff and deceased Defendant No.1, the Defendant No.1 on the strength of khatha standing in her name had sold the suit schedule properties by virtue of Sale Deeds dated 14.06.1983 and 19.04.1996 in respect of portion of suit schedule properties item No.1, 2 and 3 in favour of Defendant No.8, 15 to 57 O.S.NO.6636/1994 17 respectively and such Sale Deeds are not binding on the share of the Plaintiff. Such purchasers may make suitable application before the Final Decree Proceedings to allot the properties purchased by them in favour of the Defendant No.1. In such event, this Court may consider such request of the Defendants No.8 to 17. The Defendants No.15 to 17 have also made their attempts to prove that the suit schedule properties item No.2 was belonging to their grand father by name Chikkanna and the same was supposed to be fallen to the share of Chikkanna in the family partition between Kallayya S/o Kallahyya and his brothers including Chikkanna, but there is no material is produced to prove such fact and hence the Defendants No.15 to 17 are considered as only the purchasers of suit schedule properties item No.2 and 3 by the Defendant No.1 and nothing more than that. As stated above, they may make suitable application before Final Decree Proceedings requesting the Court to allot the properties purchased by them into the name of Defendant No.1.
96. Considering the fact that the suit schedule properties Item No.1 to 7 and 9 are the joint family properties of deceased Plaintiff and deceased Defendant No.1, the Sale Deed executed by Defendant No.1 dated 14.06.1983 and 19.04.1996 in respect 58 O.S.NO.6636/1994 of suit schedule properties item No.1 to 3 in favour of Defendants No.8, 15 to 17 are not binding on the share of the Plaintiff. Further subsequent sale made on the strength of Sale Deed dated 14.06.1983 are also not binding on the right of the Plaintiff over her ½ share. Hence I proceed to hold the Issue No.5 in the Affirmative.
97. ISSUE NO.6:- The Defendants have baldly claimed that the suit is barred by limitation but no material is placed to prove how the suit is barred by limitation and Hence I proceed to hold the Issue No.6 in the Negative.
98. ISSUE NO.7:- The Defendants have claimed that the suit is not valued properly and Court fee paid is insufficient. This suit is a suit for partition and separate possession of the share of the Plaintiff, suit is properly valued under Section 35(2) of Karnataka Court-Fees and Suit Valuation Act and proper Court fee of Rs.200/- was paid on the plaint. Hence the Plaintiff has proved that the Court fee paid is sufficient and I proceed to hold the Issue No.7 in the Affirmative.
59 O.S.NO.6636/1994
99. ISSUE NO.9:- The Plaintiff has though claimed mesne profits, there is no material placed to claim mesne profit and there is no material placed by the Plaintiff to show the quantum of alleged income generated by the suit schedule properties. Hence I am of the opinion that the Plaintiff has failed to prove that she is entitled for mesne profit. Hence I proceed to hold the Issue No.8 in the Negative.
100. ISSUES NO.8 AND 10:- As discussed above, the Plaintiff/LRs of Plaintiff have proved that the suit schedule properties item No.1 to 7 and 9 are the joint family properties of the deceased Plaintiff and deceased Defendant No.1 and as discussed above, the LRs of Defendant No.1 have failed to prove either division of the suit schedule properties or testamentary disposition of the suit schedule properties by the father of deceased Plaintiff and deceased Defendant No.1 by name Kallayya S/o Kallayya. In the absence of the same, the Plaintiff is entitled for ½ share in the suit schedule properties. Hence I proceed to hold the Issue No.8 and 10 in the Affirmative.
101. ISSUE NO.11:- For the foregoing reasons, I proceed to pass the following;-
60 O.S.NO.6636/1994
ORDER The suit of the Plaintiff is hereby partly decreed with cost.
The Plaintiff/LRs of Plaintiff together are entitled for ½ share in the suit schedule properties item No.1 to 7 and 9/Compensation in respect of such suit schedule properties deposited in the Civil Court by the Land Acquisition Authorities or disbursed in favour of khatha holders.
The suit of the Plaintiff with regard to suit schedule property item No.8 is hereby dismissed.
Office is directed to draw Preliminary Decree accordingly.
(Dictated to the Stenographer, transcribed by him and print out taken by him, revised, corrected and then pronounced by me in open Court on this 15th day of October, 2024).
(K.S.VIJAYA) VII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE Witnesses examined on behalf of Plaintiffs:
PW.1 : Hanumakka
61 O.S.NO.6636/1994
PW.2 : Hanumanthaiah
PW.3 : B.Revanna
PW.4 : V.Jayaram
PW.5 : Manjunanth.R.
Witnesses examined on behalf of Defendants:
DW.1 : Ramalingappa
DW.2 : Sanjeevaiah @ Sanjeevappa
DW.3 : Kalaiah
DW.4 : K.N. Nagendra Prasad
Documents marked on behalf of Plaintiff:
Ex.P.1 : Mutation Extract
Ex.P.2 : Records of Rights in respect of Sy No.4/5
Ex.P.3 : Records of Rights in respect of Sy No.5/2
Ex.P.4 : Records of Rights in respect of Sy No.5/3
Ex.P.5 : Records of Rights in respect of Sy No.7/7
Ex.P.6 : Records of Rights in respect of Sy No.7/9
Ex.P.7 : Records of Rights in respect of Sy No.9/4
Ex.P.8 : Pahani of Sy No.5/2
Ex.P.9 : Pahani of Sy No.5/3
Ex.P.10 : Records of Rights
to Ex.P12
62 O.S.NO.6636/1994
Ex.P.13 : Certified copy of Sale Deed dated
14.06.1983
Ex.P.13(a) : Typed copy of Sale Deed dated 14.06.1983 Ex.P.14 : Certified copy of Sale Deed dated 27.10.1994 Ex.P.14(a) : Typed copy of Sale Deed dated 27.10.1994 Ex.P.15 : Certified copy of Sale Deed dated 27.10.1994 Ex.P.15(a) : Typed copy of Sale Deed dated 27.10.1994 Ex.P.16 : Certified copy of Sale Deed dated 07.03.2013 Ex.P.17 : Certified copy of Sale Deed dated 18.07.2003 Ex.P.18 : Certified copy of Sale Deed dated 24.11.2004 Ex.P.19 : Encumbrance Certificate Ex.P.20 : Encumbrance Certificate Ex.P.21 : Certified copy of Decree in O.S.No.6636/1994 Ex.P.22 : R.T.C Extracts and Ex.P.23 Ex.P.24 : Certified copy of Sale Deed dated 19.04.1996 Ex.P.24(a) : Typed copy of Ex.P.24. Marked for the purpose of convenience of the Court.
Ex.P.25 : Certified copy of Sale Deed dated 19.04.1996 63 O.S.NO.6636/1994 Ex.P.25(a) : Typed copy of Ex.P.25. Marked for the purpose of convenience of the Court.
Ex.P.26 : Certified copy of Sale Deed dated 19.04.1996 Ex.P.26(a) : Typed copy of Ex.P.26. Marked for the purpose of convenience of the Court.
Ex.P.27 : Property Register Extract Ex.P.28 : R.T.C Extract Ex.P.29 : R.T.C Extract Ex.P.30 : Mutation Register Extract Ex.P.31 : Certified copy of Misc No.98/1998 Ex.P.32 : Certified copy of Objection filed in FDP No.24/1996 Ex.P.33 : Endorsement given by the BDA dated 15.07.2004 Ex.P.34 : Endorsement given by the BDA dated 12.10.2004 Ex.P.35 : Certified copy of the Sale deed dated 28.01.2003 Ex.P.36 : Non Availability Certificate issued by Tahasildar, Bangalore South Taluk dated 14.03.2024.
Ex.P.37 : Certified copy of I.A.No.1 in FDP
No.24/1997 along with its annexed
affidavit
Documents marked on behalf of Defendants:
Ex.D.1 : 6 RTC extracts in all.
Ex.D.2 : M.R.
64 O.S.NO.6636/1994
Ex.D.3 : 11 RTC Extract
Ex.D.4 : Mutation Register
and
Ex.D.5
Ex.D.6 : Patta Book
Ex.D.7 : Genealogical Tree signed by my grand
father Kallaiah.
Ex.D.8 : Inheritance Extract
Ex.D.9 : Mutation Register
Ex.D.10 : 5 RTC in all
Ex.D.11 : Certified copy if order sheet in LAC 198/2002 Ex.D.12 : Certified copy if order sheet in LAC 248/2002 Ex.D.13 : Requisition given by deceased 1st defendants and others requesting for cancellation of revenue receipts Ex.14 : Tax paid receipts.
Ex.D.15 : Registered Will dated 16.03.1944 along with the typed copy (marked subject to objection) Ex.D.16 : Certified copy of Will dated 16.03.1944 (marked subject to objection) Ex.D.17 : Consent Deed dated 28.12.1958 Ex.D.18 : Death Certificate Ex.D.19 : Certified copy of order passed in W.P 1324/2007 dated 31.01.2007 65 O.S.NO.6636/1994 Ex.D.20 : Certified copy of order passed in W.P 44949/2003 Connected with other Cases dated 06.06.2006 Ex.D.21 to : Online Tax paid receipts Ex.D.27 Ex.D.28 : Electricity Bills to Ex.D.32 Ex.D.33 : RTC Extracts to Ex.D.48 Ex.D.49 : M.R Extract bearing No.21/2004-2005 Ex.D.50 : Certified copy of the order of Special Land Acquisition Officer dated 25.01.2019 Ex.D.51 : Certified copy of the Sale deed dated 19.04.1996 in respect of property in Survey No.5/2 of Ganakal Village executed by Kalamma i.e., Defendant No.1 in favour of Kalaiah - Defendant No.17 Ex.D.52 : Certified copy of the Sale deed dated 19.04.1996 in respect of property in Survey No.5/2 of Ganakal Village executed by Kalamma i.e., Defendant No.1 in favour of Doddaiah - Defendant No.16 (K.S. VIJAYA) VII A.C.C. & S.J., BENGALURU.