Bangalore District Court
Smt. K. Shaila vs Sri. B.Ramesh on 23 September, 2022
THKABC010054452014
IN THE COURT OF THE XXII ADDL.CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY: (CCH.7)
Dated this the 23 rd day of September, 2022.
PRESENT
BALAGOPALAKRISHNA
XXII ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.3111/2014
PLAINTIFF : 1. Smt. K. SHAILA,
Aged about 71 years
D/o. Late Sri. B.Venkataramana Rao,
R/at No.5-2-8, Nehru Avenue Cross Road,
Mangalore-575003.
2. Smt. Shobha Kukillaya
Aged about 66 years,
D/o. Late Sri. B.Venkataramana Rao,
r/at No.F-6, Perody Garden
No.865, Vijaya Bank layout,
Off. Bannerghatta Road,
Bangalore-560076.
( By Sri.D.R.Babu, Advocate)
-VS-
DEFENDANTS : 1. Sri. B.Ramesh, since deceased by his
Legal representatives.
1(a). Smt. B.Shobha Ramesh
Aged about 70 years,
W/o. Late Sri. B.Ramesh.
2 O.S.No.3111/2014
1(b). Smt. Archana Rao Sukeerthy
Aged about 45 years,
D/o. Late Sri.B.Ramesh
W/o. Sri Sukeerthy Marahanamaiah.
1(c). Smt. Swathi Brahma
Aged about 41 years
D/o. Late Sri. B.Ramesh
W/o. Sri. Sarthak Brahma.
All are residing at No.1862,
'Sandhya', 38th Cross Road
11th 'A' main road, 4th 'T' block
Jayanagar, Bangalore-560041.
( By Sri.K.G, Advocate)
Date of Institution of the suit : 21.04.2014
Nature of the Suit : Declaration & Partition
Date of commencement of recording
of evidence : 28.10.2019
Date on which the Judgment was
pronounced : 23/ 09/ 2022
Year/s Month/s Day/s
Total Duration : 08 05 02
(BALAGOPALAKRISHNA)
XXII Addl.City Civil & Sessions Judge,
Bengaluru City.
3 O.S.No.3111/2014
JUDGMENT
The plaintiffs have filed the suit against the defendants for partition and separate possession of their 1/3rd share each in the suit schedule property, mesne profits and other consequential reliefs as prayed in the plaint.
2. In brief the Case of the plaintiffs are as under:-
It is submitted that, father of the plaintiffs by name B.Ventakaramanarao and their mother name is Sharada Rao. The said couples had two daughters i.e., the plaintiffs' and one son i.e., the defendant. Father of the plaintiffs by name B.Venkataramanarao was working as a senior manager in Karnataka Bank, K.G.Road Branch, Bengaluru in the verge of his retirement. It is further stated that, during his lifetime out of his savings he had acquired the suit schedule property under the registered sale deed dated 26.07.1984 and accordingly, he was in possession and enjoyment of the said property. It is further submitted that, father of the plaintiffs after purchasing the suit schedule property, he has renovated the whole building and now the present building comprises ground and first floor.
3. It is further submitted that, the father of the plaintiff died on 23.02.1988 leaving behind him, his wife Smt.B.Sharada Rao, plaintiffs and defendant as his Lrs. The mother of the plaintiff is also died on 15.08.2009 leaving behind her the plaintiffs and defendant as her legal heir. Soon after, the death of father and mother of the plaintiffs they have 4 O.S.No.3111/2014 succeeded the suit schedule property. Therefore, they are entitled for 1/3rd share each in the suit schedule property. It is submitted that, the plaintiffs were in their parental house till their marriage and after their marriage they are living in their respective marital home, however they are continued to be in joint possession of the suit schedule property along with defendant.
4. It is submitted that, after the death of the father of the plaintiffs, the mother of the plaintiffs does not shown interest to divide the suit schedule property for her sentimental reasons. For the said reasons, the plaintiffs did not seek any partition in the suit schedule property. After the death of mother of plaintiffs on 15.08.2009 the plaintiffs have demanded the defendant to partition the suit schedule property, at the first instance the defendant had assured to divide the property, but subsequently he was keep on postponing the same for the reasons best known to him.
5. It is the further case of the plaintiffs that, the defendant had approached the plaintiffs seeking their consent by way of Release to sell the suit schedule property, at that time the plaintiffs came to know that, the defendant intended to sell the suit property. It is further stated that, on enquiry the plaintiffs came to know that, Katha of the suit schedule property was changed in his name without the consent of the plaintiffs. Therefore, during the last week of March 2014 they have insisted and demanded the defendant to partition the suit 5 O.S.No.3111/2014 schedule property, but same was not effected. Hence, the cause of action was arose to file the present suit.
6. By way of amendment, the plaintiffs have inserted para No.11(a) to 11(d) taking the contention that, their father never executed alleged Will on 01.01.1988 as contended by the defendant. The alleged Will is created and concocted for the purpose of depriving the legitimate share of the plaintiffs in the suit schedule property. It is further stated that, the father of plaintiffs was a retired Chief Manager of Karnataka Bank. He has no reason to deprive the share of the plaintiffs in the suit schedule property and also given entire property to his son. It is further stated that, a big amount has been invested by the plaintiff and small amount has been kept in the savings bank account as per the advise of father is false and untenable. Accordingly, prayed to decree the suit as prayed.
7. After service of summons the defendant has engaged the counsel and filed a detailed written statement as under:-
This defendant has admitted the relationship among him and the plaintiffs. It is further submitted that, father of the plaintiffs and defendant by name B.Venkataramana Rao had executed a handwritten Will in the presence of two attesting witnesses by name Dr.K.Bhagawan and P.Ramachandra Rao on 01.01.1988 bequeathing his both movable and immovable properties among his wife and children. As per that, the father of the plaintiffs and defendant bequeathed the suit schedule 6 O.S.No.3111/2014 property in favour of defendant i.e., creating a life interest in favour of his wife Mrs. Sharada Rao over the suit schedule property without a right to alienate the suit schedule property. It is further stated that, the execution of the Will by father of the plaintiff and defendant was informed to all the children. Therefore, the plaintiffs cannot claim right over the suit schedule property. The said Will was accepted and acted upon by the plaintiffs and defendant. Hence, suit is liable to be dismissed.
8. As per the Will dated 01.01.1988, the following movable had fallen to the share of the plaintiff No.1:
Sl.No. Particulars Moveable In favour of
1. Gujarat Narmada Valley 50 shares of Rs.10/- Plaintiff No.2 Fertilizers Company each Limited
2. Demand Promissory Investment of Plaintiff No.1 Note Rs.5,000/-
3. FDR 6/87 Of Rs.1600/- at 20% Plaintiff No.1 interest Of Rs.1,500/- at 20% Plaintiff No.1
4. FDR 17/87 interest
5. FDR 47 Of Rs.8,000/- at 18% Plaintiff No.1 interest
6. SB A/c No.6746 --- Plaintiff No.1
7. Interest amount Of Rs.1,100/- Plaintiff No.1 accrued on Deposits sent by DD dated 19-12-1987 (Rs.500 & Rs.600) 7 O.S.No.3111/2014 and the following properties fallen to the share of plaintiff No.2 as per the Will:-
Sl. Particulars Moveable In favour of
No.
1. Garware Plastic & 25 Shares of Rs.10/- each Plaintiff No.1
Polyester Ltd.,
2. E Hach India Limited 25 shares of Rs.10/- each Plaintiff No.1
3. Garware Marine Industries 25 shares of Rs.10/- each Plaintiff No.1 Limited
4. Straw products Limited 25 shares of Rs.10/- each Plaintiff No.1
5. Orissa Synthetics Limited 100 shares of Rs.10/- Plaintiff No.1 each Sl. Particulars Moveable In favour of No.
1. Gujarat Narmada Valley 50 Shares of Rs.10/- each Plaintiff No.2 Fertilizers Company Limited.
2. Garware Plastic & 25 shares of Rs.10/- each Plaintiff No.2 Polyster Limited
3. Glaxo Laboratories India 25 shares of Rs.10/- each Plaintiff No.2 Limited
4. Oriental Carbon & 50 shares of Rs.10/- each Plaintiff No.2 Chemicals Limited
5. Straw Products Limited 25 shares of Rs.10/- each Plaintiff No.2
6. Astro India Limited 25 shares of Rs.10/- each Plaintiff No.2
7. Tata Iron and Steel 2 shares of Rs.100/- each Plaintiff No.2 Company Limited
8. FDR NO.55 For Rs.10,000/- Plaintiff No.2
9. FDR NO.07/87 For Rs.2,500/- Plaintiff No.2 8 O.S.No.3111/2014
10. FDR No.18/87 For Rs.2,500/- Plaintiff No.2
11. FDR.NO.171/87 For Rs.2,300/- Plaintiff No.2
12. SB A/C. NO.6797 in ---- Plaintiff No.2 Karanatak Bank Limited
13. C D A/c. No.68/87 For 2,508/- Plaintiff No.2
9. It is further stated that, the father of the plaintiffs and defendant had wished how much and to whom his self acquired properties i.e., both movable and immovable would be devolved after his death. Under the Will, father of the plaintiffs and defendant had bequeathed the suit schedule property and some immovable properties like shares in favour of defendant along with liabilities of repaying loan due to him of Rs.28,920/- and another loan due to his wife amounting to Rs.28,920/- and creating a life interest. Therefore, suit of the plaintiffs is liable to be dismissed.
10. It is further contended that, suit of the plaintiffs is barred by time and liable to be dismissed. The court fee paid by the plaintiffs is not in accordance with law. On these grounds and amongst other prayed to dismiss the suit of the plaintiffs.
11. The defendant herein has also filed additional written statement to the amendment carried out by the plaintiffs to their plaint by reiterating the written statement already filed.
9 O.S.No.3111/201412. On the basis of the pleadings of the respective parties, following re-casted issues are framed :-
RE-CASTED ISSUES
1) Whether the plaintiffs prove that suit schedule property is the absolute property of their father as contended in para No.3 of the plaint?
2) Whether the plaintiffs further prove that they are entitled for 1/3rd share each in the suit schedule property?
3) Whether the defendant proves that his father bequeathed the suit schedule property by executing Will dated 01-01-1988 as contended in the written statement ?
4) Whether the defendant further proves that at the time of executing the Will dated 01-01-1988 his father was having sound disposing state of mind?
5) Whether the plaintiff proves that suit is not properly valued as per the provisions of Karnataka Court Fee and Suit Valuation Act, 1958?
6) Whether the defendant proves that suit of the plaintiff is barred by Limitation?
7) Whether the plaintiffs prove that they are entitle for the reliefs as claimed in the plaint?
8) What Order or decree?
13. On the side of the plaintiffs, plaintiff No.2 herself examined as PW.1 and Ex.P1 to Ex.P.3 are got marked.
10 O.S.No.3111/201414. On the side of the defendant, DWs.1 to 3 are examined, out of them evidence of DW.1 was discarded. Ex.D1 to Ex.D100 are got marked.
15. Heard the arguments on both the sides and perused the documents.
16. On the basis of the evidence available on record, my findings on the above re-casted issues are as under:-
Issue No.1 : In the Affirmative;
Issue No.2 : In the Negative;
Issue No.3 : In the Affirmative;
Issue No.4 : In the Affirmative;
Issue No.5 : In the Negative;
Issue No.6 : In the Negative;
Issue No.7 : In the Negative;
Issue No.8 : As per final order
for the following:
REASONS
17. RE-CASTED I S SUE NO.1:-
The plaintiffs herein are seeking partition of their 1/3rd share each in the suit schedule property bearing No.KHB No.1862, BBMP PID. NO. 58-42-68, 38 th 'A' Cross, 4th T Block, Jayanagar, Bengaluru, coming within the limits of Ward No.58, Jayanagara BBMP, measuring east to west 42 ½ feet and north to south 70ft bounded on :-
East:- by Road West:- by property No.1863 11 O.S.No.3111/2014 North:- by Road South:- by Property No.1871 In respect of the said property at para No.3 of the plaint it is stated that, the father of the plaintiffs and defendant had purchased the said property under registered sale deed dated 26.07.1984. It is also contended that, the father of the plaintiffs and defendant after purchase renovated the whole building and presently, the suit site is consisting ground and first floor. This fact has been accepted by the defendant from para No.12 to 14 of the written statement. In all what is gathered is that, the suit schedule property originally belonged to the father of the plaintiffs and defendant by name Mr. B. Venkataramanarao. Further, the said fact has also been deposed by the plaintiffs and she has produced Ex.P1 i.e., the Katha Extract issued by the Asst. Revenue Officer which was issued on 21.02.2014 standing in the name of defendant. Ex.P2 is the certified copy of the sale deed dated 26.07.1984 standing in the name of father of plaintiffs and defendant.
18. Further, the defendants have produced Ex.D2 to 19 are the receipts for having paid the installment towards the suit schedule property by the father of the plaintiffs and defendant. Further, Ex.D25 and Ex.D26 are the intimation of allotment and also letter issued by the Mysuru Housing board which reveals that, the suit schedule property was absolutely granted in favour of the father of plaintiffs and defendant.
Ex.D27 to Ex.D29 are some corresponding letters by father of 12 O.S.No.3111/2014 plaintiffs and also Chairman of Housing Board. Ex.D30 is consisting of a letter issued by auditor and also original sale deed in respect of the suit schedule property. Further, Ex.D32 to Ex.D36 are the Katha endorsement and Katha extract in respect of the suit schedule property standing in the name of defendant. Ex.D38 to Ex.56 are in respect of the suit schedule property. Ex.D59 is the Encumbrance Certificate of the suit schedule property.
19. The said documentary evidence produced by both the plaintiffs and defendant clearly reveals that, the father of the plaintiffs and defendant had purchased the suit schedule property from the Secretary of Karnataka Housing Board which is the absolute property of the father of plaintiffs and defendant. This fact is also not disputed by the defendant. Under such circumstances, without discussing more the court can come to conclusion that, the suit schedule property of deceased Venkataramanarao. Accordingly, this issue is answered in the Affirmative.
20. RE-CASTED ISSUE NOS.2 TO 4:-
These issues are interlinked and they are taken together for common discussion to avoid repetition.
As discussed above nature of the property is not in dispute that, it was originally belonged to the father of the plaintiffs and defendant by name B. Venkataramanarao who died on 23.02.1988 and his wife Smt. Sharada Rao who died 13 O.S.No.3111/2014 on 15.08.2009. Though, the nature of the property is admitted by both the plaintiffs and defendant, the defendant herein has set up a defence that, his father bequeathed the suit schedule property in his favour under unregistered Will dated 01.01.1988. Therefore, he has become the absolute owner of the suit schedule property and the plaintiffs have no right over the suit schedule property. The defendant being a propounder of the Will, burden is heavily cast upon the defendant to prove the Will.
21. Before discussing the evidence of the defendant on the Will, it is useful to quote the decision of our Hon'ble High Court reported in ILR 2008 KAR PG.NO.2115 in the matter of Sri.J.T.Soorappa and another v/s. Sri. Satchidanandendra Saraswathi Swamiji Public Charitable Trust and Others, wherein at para No.24 it is pleased to hold that:-
Therefore, the court has to tread a careful path in the enquiry to be conducted with regard to Will. The said path consist of 5 steps PANCHAPADI. The path of enquiry on steps to be traversed are as under:-
1. Whether the Will bares the signature or mark of testator is duly attested by two witnesses and whether any attesting witness is examined to prove the Will.
2. Whether the natural heirs have been disinherited? If so, what is the reason.14 O.S.No.3111/2014
3. Whether the testator was in a sound state of mind at the time of executing the Will.
4. Whether any suspicious circumstances exist surrounding the execution of the Will.
5. Whether the Will has been executed in accordance with Sec.63 of the Indian Succession Act, 1925 r/w Sec.68 of Indian Evidence Act.
Under the backdrop of the said guidelines of Hon'ble High Court, let me consider the propounder of the Will has discharged the initial burden lies on him and proved the Will. The Will relied by the defendant is in a diary, the entire diary is marked at Ex.D21 through the PW.1. The Will executed by deceased Venkataramanarao is found at 1st page of the said diary which is marked at Ex.D21(e), signature of the testator is marked at Ex.D21(f), signature of the attesting witnesses are marked at Ex.D21(f & g). Further, page No.15 of the Ex.P21 is marked at Ex.D21(a), 21(c), 21(b) and 21(d) (this exhibits are confronted during the cross-examination through PW.1 by the defendant counsel).
22. The defendant herein died on 30.07.2021. So, his Legal representatives have been brought on record. The Legal representatives in order to prove the Will daughter of defendant was examined on 22.10.2021 and subsequently, her evidence was expunged / discarded by this court since she was not tendered for cross-examination.
15 O.S.No.3111/201423. One of the attesting witness to the Ex.D21(e) is examined before this court as DW.2 and his examination in chief has been filed by way of affidavit, wherein he has deposed that, he is a doctor by profession and from 1968 to 1996 he was residing opposite to the suit schedule property i.e., house belonged to B.Venkataramanarao. He further deposed that, he knows the wife of B.Venkataramanarao, plaintiffs and defendant. He further deposed that, on 01.01.1988 the father of the plaintiffs and defendant called him to his house and also another friend by name P.Ramachandra Rao, an advocate ( now he is no more). He further deposed that, on 01.01.1988 in their presence B.Venkataramanarao expressed his intention of executing/making a Will with respect to his properties and requested them to put their signatures as attesting Witness. He further deposed that, then in his own handwriting and in their presence, out of his free Will has written a last Will in a diary. He further deposed that, at the time of execution of the Will B.Venkataramanarao had a sound state of mind, he understood the nature and effect of disposition and he had executed the Will in his own handwriting and signed it out of his free Will. He further deposed that, under the Will he had bequeathed his house property i.e., suit property to his only son defendant. He further deposed that, the one more attesting witness by name P.Ramachandra Rao and testator B.Venkataramanarao is no more. He further deposed that, neither himself nor Ramachandra Rao are the beneficiaries of 16 O.S.No.3111/2014 the said Will i.e., Ex.D21(e) and they have no personal interest in the properties of B.Venkataramanarao.
24. He further deposed that, after wrote the Will the testator read over the same and he has affixed signature on the said Will in their presence. He further deposed that, he himself and late P.Ramachandra Rao have put their signature as attesting witness. He further deposed that, as mentioned in the Will the B.Venkataramanarao distributed his assets and properties in favour of his family members.
25. This witness was subjected to cross-examination and following admissions have been elicited:-
1. Will contains only one page. The Will was written in a diary. I do not know the year of a diary.
2. It is around in the middle page of the diary, Will was written and I think it is in the right side of the diary.
3. I did not inform to the first defendant regarding Will executed by Venkataramana Rao.
Venkataramanarao did not tell that, I should inform his children regarding execution of Will.
In further cross-examination, it is suggested to the witness that, during the month of January 1988 he was not at all present in India and also suggested that, the Will in question was created and concocted and signature found on 17 O.S.No.3111/2014 the Ex.D21(f) is not at all the signature of testator Venkataramana Rao, same is denied by the witness. Rest of the cross-examination is just denial of the Chief Examination.
26. DW.3 is one of the daughter of defendant, her examination in chief has been filed by way of affidavit wherein she reiterated the averments made in the written statement. Through her as many as Ex.D22 to Ex.D99 documents are got marked.
27. In the cross-examination of DW.3, the plaintiff counsel has denied the examination in chief as false, same is denied by the witness. The following admissions have been elicited through DW.3:-
1. It is false to suggest that, I have created the alleged Ex.D21 Will by colluding with DW.2 Dr.Bhagawan. I have not seen the signature of my grand father till day.
However, I came to know about my grandfather signature when the Ex.D21 Will was produced before the court.
28. On the side of the plaintiffs, the plaintiff No.2 herself examined as PW.1, her examination in chief has been filed by way of affidavit, through her Ex.P1 to 3 are got marked. In the cross-examination it is elicited that:-
1. "A diary shown to me is marked as Ex.D21 and the same is in the handwriting of my father, page No.15 and page No.17 18 O.S.No.3111/2014 of the said diary is marked as Ex.D21(a) and 21(b)...."
2. "I do not know the signature in Ex.D21 tallies with Ex.D2. It is false to suggest that, Ex.D21(a) and Ex.D2 also tallies."
On the basis of the above said oral evidence of plaintiffs and defendant, the court has to evaluate whether the defendant has proved the Will in the manner known to law.
29. It is admitted fact that, the suit schedule property originally belonged to the father of plaintiffs and defendant by name Venkataramanarao, having purchased the same under Ex.D31 executed by Secretary, Karnataka Housing Board in favour of father of the plaintiffs and defendant. This document is not in dispute. Ex.P2 is the equivalent document. Ex.P1 is the Katha Extract which is equivalent to Ex.D34 to Ex.D37. These documents are also not in dispute. Ex.D2 to Ex.D19 are some receipts for having paid the installment to the Karnataka Housing Board. Ex.D20 is like passbook for having kept some valuables in the locker. Ex.D22 is the affidavit of one of the attesting witness. Ex.D23 is the death certificate of father of the plaintiffs and defendants. Ex.D24 is the death certificate of mother of the plaintiffs and defendants. Ex.D25 is the intimation allotment in respect of suit property. Ex.D26 is the demand letter. Ex.D27 is the request given by father of the plaintiffs and defendants for assessment of tax. Ex.D28 and Ex.D29 are the correspondence made by the father of 19 O.S.No.3111/2014 plaintiffs and defendants. Ex.D30 is the letter issued by the Commissioner, Karnataka Housing Board. Ex.D32 is the requisition given by the defendants for change of Katha of the suit schedule property. Ex.D33 is the Katha Certificate. Ex.D38 to Ex.D55 are the tax paid receipts. Ex.D56 is requisition given by the defendant No.1 to transfer the share certificate in his name. Ex.D57 is the reply given by the company. Ex.D58 is the Succession certificate issued by the Court. Ex.D59 and 60 are the Encumbrance certificates. Ex.D61 to 91 are the bills for having purchased the material for the purpose of renovation of house existing on the suit property. Ex.D94 to 99 are the Condolence letters written by the friends and relatives of the defendant No.1 expressing their deep condolence of the death of father of defendant No.1. Ex.D100 is the notarized copy of the passport of the DW.2.
30. Out of the above cited documents only disputed document is Ex.D21 i.e., a Will deed alleged to be executed by father of the plaintiffs and defendant on 01.01.1988 in favour of defendant. Therefore, I restrict my discussion only in respect of Ex.D21, since there is no dispute in respect of existence of the property and ownership of the suit schedule property among the parties.
31. Now, on careful reading of the entire documentary evidence and oral evidence it reveals that, how the defendant has got the Ex.D21 is not forthcoming. However, on the basis 20 O.S.No.3111/2014 of Ex.D1 it can infer that, Ex.D21 was in the custody of mother of the defendant No.1, so she made an application to the concerned ARO, The Corporation of City Bengaluru, to change the Katha in the name of defendant No.1 by referring the Will executed by her husband. In the cross-examination of witnesses of the defendant side this aspect has also not been seriously disputed by the other side. Now, as per the guidelines of Hon'ble High Court in J.T.Surappa and another case, first step is whether Will is reduced into writing, signed by the testator and also attested by two or more witnesses and at least one attesting witness shall be examined. In a case on hand, on careful reading of the Ex.D21(e), a Will written in a diary of 1982, written in own handwriting of the testator, signed by him and it further reveals that, two attesting witnesses have affixed their signature on the first page (entire diary is marked at Ex.D21). In a subsequent pages the testator has mentioned his name and also individual investment on various pages numbered at page No.1 to 21, after 13 empty pages in three pages some FDR details is also mentioned by the testator.
32. The learned counsel appearing for the plaintiff Sri. Jayadev, Advocate vehemently argued and disputed the Will, on the following grounds:-
1. That the alleged Will is not written on a paper, instead of that it is written on diary.21 O.S.No.3111/2014
2. Except first page rest of the schedules are concerned there is no signature of the testator in all the pages, so it is created.
3. The testator has not assigned any reason why he is excluding daughters i.e., plaintiffs.
4. For having acted upon the Will i.e., the daughters have received the benefit under the shares of various company, no documents are produced by the defendant before this court.
5. The attesting witness examined is close to the defendants family.
6. The alleged Will has not been proved in entirety.
7. There is no equitable distribution in the Will.
For the above said reasons, it is argued that, the Will is created by the defendant and the alleged Will has been come into existence under suspicious circumstances. In order to substantiate his argument he relied upon the following rulings:-
1). 2021 (2) KLR PAGE NO.828, in the matter of Ramamani V/s. Sudha.
2). AIR 2020 SC PAGE NO. 3102
3). AIR 2007 SC PAGE NO. 2025, in the matter of Adviakka V/s. Hanumamma.22 O.S.No.3111/2014
4). Decision of Hon'ble Madras High Court in SCC.No.241/15 DD on 23-03-2022, in the matter of Malliga V/s. Kumar.
33. On the other hand learned counsel Sri. PC for the defendant submits that:-
1. The law does not prescribes particular way to write the Will. The Will can be written on white paper, green paper or in a diary.
2. The purpose of Will is only to carry out the last desire of the testator after his death.
3. There is no role of the defendant in execution of the Will.
4. The attesting witness being a responsible doctor who was residing opposite to the house of testator has given evidence for having executed the Will by the father of the plaintiffs and defendant. Hence, this court cannot discard his evidence.
5. The wife of the testator by name Sharada Rao has given consent in the year 1993 to change the Katha of the suit schedule property in the name of the defendant, so the Will was acted upon. Therefore, there is no question of creation or suspicion etc.,
6. Merely, the defendant has not produced any documents to show that, the plaintiffs have received the benefit of shares from the various company is not a ground to disbelieve the Will, because weakness of the defendant is not a ground to decree the suit of the plaintiffs. He further argued that, except production of 3 documents the plaintiffs have not produced their passbooks and other documents to show 23 O.S.No.3111/2014 that, they have not received the benefit of the shares.
7. The testator is not a ordinary man, he is a educated and Chief Manager of the Karnataka Bank. Therefore, no one can influence or coerce him to execute the Will.
8. The entire contents of Ex.D21(e) is in the handwriting of testator. Merely, the plaintiff has taken a contention that, it is created and concocted, the solemn document cannot be rejected.
In support of his arguments he pressed in to service of the following rulings:-
1. (2003) 2 SCC 91 @ para Nos. 9 and 10, in the matter of Janki Narayan Bhoir v. Narayan Namdeo Kadam.
2. (2021) 11 SCC 209 @ para No.24, in the matter of Kavita Kanwar v. Pamela Meta.
3. 2015 SCC online Del 14528 - para 21 @ page 108, in the matter of Budh Singh v. Raghubir Singh.
4. 1995 SCC Online Mad 201 @ para Nos. 61 and 62, in the matter of Ammu Balachandran v. U.T.Joseph,
5. (2005) 2 SCC 784 @ para Nos. 15, in the matter of Sridevi v. Jayaraja Shetty,
6. (1996) 9 SCC 324@ para Nos. 15, in the matter of Joyce Primrose Prestor v. Vera Marie Vas 24 O.S.No.3111/2014
7. 2017 SCC ONLINE ALL 3667 - para 80 and 81 @ page 215 @ para Nos.80 and 81, in the matter of Ganga Prasad v.
Munna Lal.
8. 2021 SCC Online Kar 12513, in the matter of C Krishnaiah Chetty and Sons Private Limited v. Deepali Computers Private Limited.
On the backdrop of the above arguments submitted by the respective counsel and also principles enunciated in the said rulings of Hon'ble Supreme Court, let me consider the case of the parties herein.
34. It is true that, law does not prescribes that, the Will should be written in a particular manner or in a particular paper. Therefore, merely the testator had executed a Will on a diary, it cannot be said that it is not proper. It is pertinent to note that, the defendant died on 30.07.2021 i.e., before commencing his evidence. Therefore, his daughters have been examined before the court, it is quite natural that, they are unaware about the execution of the Ex.D21 by their grandfather. Therefore, even if they have not given evidence to that effect, the same is not helpful to the parties to the suit. In this case, merely the testator has executed the Will in a diary, it cannot be disbelieved, because it has satisfied the first step of the ruling cited above i.e., the Will / Ex.D21(e) is reduced into writing signed by the testator and also attested by the two witnesses.
25 O.S.No.3111/201435. Now coming to the second step, by seeing the Ex.D21(e) it is obviously clear that, the testator has not distributed the suit schedule property among his two daughters, but same has been given to his son with a condition that, he has to clear the liability, subject to the right of B.Sharadha Rao to live in the house until her life time and not to alienate the property in whatsoever manner without the consent and convenience of my wife. Further, in the event of any portion of premises is being rented out, half the rental amount should be paid to her...... After the first page, he has shown his individual investment i.e., his, his wife, his son/defendant and his wife till page No.14 written in red ink. Further, in the same Exhibit he has also made some investment in the name of plaintiff No.1 i.e., Shaila which is marked at Ex.D21(a) and at page No.17 he has made investment and bequeathed in the name of plaintiff No.2 which is marked at Ex.D21(b) and also to one K.Sandhya Rao marked at Ex.D21(c) and at page No.21 again bequeathed some FD's to the plaintiff No.2 which is marked at Ex.D21(d). From the above, what is gathered is the testator was not intended to give any share to the plaintiffs in the suit schedule property, but he has given some movables to the plaintiffs as shown in Ex.D21(c) to 21(d). From this it cannot be said that, the testator absolutely deprived the daughters, but he has given some shares and FD's. Merely, the plaintiffs have not taken the said amount is not a ground to disbelieve the said Ex.D21. The whole intention of the testator 26 O.S.No.3111/2014 is that, he does not want to give suit schedule property to daughters and he was decided to give some shares and also Fixed deposits to his daughters. When compared to the value, it is almost equivalent to the value of the suit schedule property. That is the reason why top of the Ex.D21(c) he has specifically wrote that, bequeath to her. Therefore, I am of the opinion that, the testator has given satisfactory explanation for not giving share in the suit schedule property.
36. Now coming to the third step as per that, the court has to find out whether the testator was in a sound state of mind at the time of executing the Will. Ex.D21 is of 01.01.1988, where as the testator B.Venkataramanarao died on 23.02.1988 i.e., within span of 54 days he died. In the plaint, the plaintiffs have not taken such a contention that, at the time of executing Ex.D21(e) their father was not maintaining sound state of mind to dispose of his property, only contention taken by the plaintiff's is that, it is fabricated, forged etc., At this juncture the evidence of DW.2 plays an important role who is a doctor by profession. In his evidence he has clearly deposed that, the testator was suffering from Liver Cancer and in fact, the said fact came to his knowledge in the year December 1987. He further stated that, testator was taking treatment in Mayya Hospital. Except above the plaintiffs counsel has not suggested a single sentence about the mental capacity of the testator B.Venkataramanarao. It is admitted fact that, testator was a Liver cancer patient, whether that disease would affect his mental condition to execute the 27 O.S.No.3111/2014 Ex.D21(e) has to be considered. Here on considering the entire Ex.D21(e) and other parts of the Will, is in the own handwriting of the testator. From this, one can come to a conclusion that the testator was having sound state of mind to execute the Will. Therefore, it further infer that, the testator after knowing the contents and also consequence of the Will he has executed Ex.D21(e). Therefore, one cannot doubt it. Merely, DW.2 is a friend of defendant why he is deposing against the plaintiffs is not forthcoming from the evidence. It is true another attesting witness by name Sri. Ramachandra Rao is not examined before the Court, because as per the evidence of DW.2 he is no more. If at all, the father of the plaintiffs and defendant was not having sound disposing state of mind, he would not have possible to write Will in his own handwriting. There is no material that, Liver Cancer was affected the mental condition of the testator by name Venkataramanarao. B.
37. Now coming to the fourth step i.e., court has to find out whether there exist any suspicious circumstances surrounding the execution of the Will. In this case, the plaintiffs except denying the Will i.e., Ex.D21(e) is created, forged and concocted they have not taken any specific contentions. However, to prove this aspect is on the propounder of the Will. Unfortunately, at the time of evidence defendant also not alive and died on 30.07.2021. In respect of suspicious circumstances is concerned, the plaintiffs have not elicited anything from the mouth of the witnesses of the 28 O.S.No.3111/2014 defendant. As per the ruling cited above, the following are the important circumstances to say that, the Will was surrounded by suspicious circumstances:-
1. The propounder taking a prominent role in execution of a Will which confers substantial benefit to him.
2. Will executed by a dying person or a person near to death or when the testator was physically and mentally feeble and near his end.
3. The Will containing shaky signatures and not registered.
4. A feeble mind like to be influenced.
5. Unfair and unjust disposal of property.
6. Disinheriting the natural heirs without any reason.
7. The testator intellect impaired or weakened by age or illness.
8. The testator being an illiterate person putting his thumb impression on the Will.
9. Marked variance between the signature found at different places in the Will.
10.The Will which has not seen the light of the day for a considerable period from the date of death of the testator.
11. Incorrect recitals in Will.
12. Will written in a language which is unknown to the testator.
38. In this case, the plaintiffs have not demonstrated above said circumstances before the court. As I discussed above, the testator himself wrote the entire contents of 29 O.S.No.3111/2014 Ex.D21(e) and also its schedule. Further, testator himself has bequeathed some of the movables to the daughters i.e., plaintiff No.1 and 2. Ex.D21(e) is not a bald document, where under a liability was also cast upon the son / defendant to clear the debt incurred by him, to look after the mother and also if the suit property was rented out, out of that, half of the amount should be given to the mother i.e., to say the testator having conscious about his wife and all the circumstances, has bequeathed the suit schedule property in favour of his son alone.
39. Ex.D21(e) was acted upon by the wife of the testator, at this juncture, it is pertinent to note that, as per Ex.D1 on 24.06.1993 the wife of the testator has given an application to the Asst. Revenue Officer, Corporation Jayanagar wherein she has categorically mentioned that:-
" I am aware of the fact that my son Sri. B. Ramesh has given an application to you seeking the change of Katha of the premises No.1862, 38th cross, 11th 'A' Main, 4th 'T' Block, Jayanagar, Bangalore-560041.
I am also very well aware of the fact that my late husband Sri B.Venkataramana Rao, who was the owner of the said premises has bequeathed the said premises to my said son B.Ramesh vide the Will dated 01.01.1988 and based on this my son has sought the change of Katha of the said premises in his name.
I submit that I have no objection whatsoever for the change of the Katha of the 30 O.S.No.3111/2014 said premises in the name of my son B.Ramesh as sought by him."
From the said Ex.D-1 it is gathered that, Ex.D21(e) was acted upon and execution of the Will by her husband was well within her knowledge and accordingly, she has given a requisition stated above to the revenue office to change the katha of the suit schedule property in the name of defendant, so Ex.D21(e) was in her custody. Thus, it can infer that the wife of the testator herself handed over the Will to her son after the demise of her husband. Thus, there was no active role of the defendant in execution of the Will. By seeing the Ex.D21(e) it appears to be natural and no unnatural elements have been elicited in the cross-examination by the plaintiffs. In this case the testator was the chief Manager of the Karnataka Bank, retired from the Service, Well educated and in his own handwriting he has wrote the Will and put the signature in the presence of the witnesses. Further, on bare perusal of the signature found on Ex.D21(f) with the Ex.D2 undoubtedly, it is a signature of the testator alone. Further, the handwriting of the testator found on the Ex.D21(e) also tallies with the Ex.D2 to Ex.D20. In the cross-examination of PW.1 she has categorically admitted that, 'A diary shown to me is marked as Ex.D21 and the same is in handwriting of my father.' When the plaintiff themselves admitted the signatures of their father and it is not disputed seriously, the court safely come to conclusion that Ex.D21(e) was written by the testator himself, so there is no question of suspicious 31 O.S.No.3111/2014 circumstances and creation of the same. Therefore, I come to conclusion that, there is no suspicious circumstances has been demonstrated by the plaintiff at the time of execution of Ex.D21(e).
40. The last step is, the court has to consider whether the Will i.e., executed is in accordance with the Sec.68 of the Indian Evidence Act. As per the said Section the Will is compulsorily attestable document. So, if at all the Ex.D21(e) has to be used as evidence, one attesting witness atleast has been called for the purpose of its execution. Here, on the side of the defendant to prove the Will one of the attesting witness that is DW.2 has been examined. Thus, Ex.D21(e) can be used as evidence.
41. Further, as stated above the Will is written on the diary and it is unregistered one. Law does not mandates that, the Will is a compulsorily registrable document. Therefore, whether Ex.D21(e) is registered or not registered, in the eye of law it makes no difference. The learned counsel appearing for plaintiffs Sri. Jayadev Advocate submitted that, on careful reading of the Ex.D21(e) all the pages is not signed by the testator. Here, in first page i.e., Ex.D21(e) the testator and 2 witnesses have been examined, whereunder the testator has narrated the suit schedule property and also some liabilities. In next 2 pages the testator has mentioned about individual investment and then his name, wife name, defendant No.1 and his wife and given some amount and then from page No.1 32 O.S.No.3111/2014 to 21 marked in red ink, there are some entries in respect of some investment made by the testator till page No. 1 to 21. Except in page No.15 the testator had not put his signature to other pages, but it is the handwriting of the testator. Whereunder, what are all the shares and FD should goes to his sons and daughters has been mentioned. Merely, the testator has not put his signature the same cannot be disbelieved. Now comes to the Ex.D21(e) wherein, the testator and witnesses have put their signature. Further, the said Ex.D21(e) is also proved in the manner known to law. At this juncture, not putting signature to other pages by the testator is not taken away the effect of Ex.D21(e). In this regard, the learned counsel appearing for defendant relying upon the ruling of Hon'ble Madras High Court reported in AIR 1996 MADRAS 442, in the matter of Ammubalachandran V/s. U.T.Joseph (dead) and others, wherein, it is pleased to held that, The other suspicious circumstances alleged is that the Will is not signed in all the pages. That also cannot be said to be a suspicious circumstances since the Will is only a declaration of the last Will of the testator. Law does not say that every page should be signed. In paruck on The Indian Succession Act, Eighth Edition, 1993, the learned Author has commented on this point, at pages 118 and 119 of that book. The learned Author says that if a Will is written on several sheets of paper, it is not 33 O.S.No.3111/2014 necessary that all the pages should be severally signed. One signature on the last sheet, made with the intention of executing the Will is sufficient. Section 63 of the Indian Succession Act only says that the signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as Will. The signature or mark of the testator can be either at the commencement or at the end, but it must be so placed that it shall appear that it was intended to give effect to the instrument as a Will, under the English Law, there is a slight difference. At pages 118 and 119 of the said book, the learned Author has said thus:-
" .... In England the Law is different. The Will Act, 1837, Sec.9, enacted that no Will was valid unless it was signed "at the foot or end thereof". The Will Act Amendment Act, 1852, Section 1, provided that "every Will shall,so far as regards the position of the signature of the testator be deemed to be valid if the signature shall be so placed at or after or following or under or beside or opposite to the end of the Will, that it shall be apparent on the fact of the Will that the testator intended to give effect by such his signature to the writing signed as his Will....but no signature shall be operative to give effect to any 34 O.S.No.3111/2014 disposition or direction which is underneath or which follows it". The signature on the top right - hand corner of the Will is not valid according to English law."
62. In so far as the Indian Succession Act is concerned, the learned Author has stated (at page
119) thus:-
"... the signature need not necessarily be at the end of the Will. It does not matter in what part of the Will the testator signs. In the Wills executed in vernacular language it is usual to put the signature on the top of the Will. This is valid execution."
From the said what is gathered is the law does not mandate each and every page of the Will should contain the signature of the testator. In this case, Ex.D21(e) contains the signature of the testator at the foot or end thereof. After the signature of the testator 2 witnesses have signed. Ex.D21(e) specifically refers to suit schedule property and debts. It appears after writing the Ex.D21(e) the testator might have thought that, it is also proper to bequeath other movables like shares and deposits in favour of its family members. Therefore, he narrated all his deposits and shares and also mentioned to whom the said deposit and shares shall go. Therefore, the contention of the plaintiffs counsel that, all pages of Ex.D21 does not bear the signature of the testator and it is not valid cannot be accepted.
35 O.S.No.3111/201442. The evidence of DW.3 is not helpful to the parties to the suit, because in her examination in chief at cause title her age has been mentioned as 45 years as on 25.11.2021. Therefore, it can be inferred that, she was born on 1976. As on 01.01.1988 i.e., date of Ex.D21(e) she was aged about 12 years i.e., she was a minor. Therefore, one cannot expect that whether she has seen the signature of the grandfather or not. That is the reason why she has given her evidence in the cross-examination to the effect that, 'One Ramachandra Rao and Doctor Bhagawan are the attesting witness to Ex.D21(e). Ramachandra Rao was an advocate. I would not able to comment if at all my grandfather wanted to execute the Will, the same would have got drafted by Ramachandra Rao, advocate.' How this evidence is helpful to the plaintiff has not been demonstrated before this court.
43. Now comes to the Ex.D58 is the Succession certificate issued by CCC-15. Now, let me compare the schedule in Ex.D58 with the Ex.D21(a) a investment made by the testator in the name of plaintiff No.1 i.e., Shaila, that schedule contains some FD receipts and also some shares, under that the testator has put his signature. Ex.D21(c) is bequeathed to one K.Sandhya Rao it is not relevant here, Ex.D21(b) consist shares of various company, those shares were bequeathed in favour of plaintiff No.2 i.e., Smt.Shobha Kokilayya and in Ex.D21(d) a FDRs mentioned therein given to plaintiff No.2. So far as, FDR is concerned neither the plaintiffs nor the defendant have stated that, whether amount 36 O.S.No.3111/2014 therein was withdrew by them or not. Now comes to the shares mentioned therein. In respect of shares bequeathed to plaintiffs the defendant herein has not taken any succession certificate i.e., to say whatever the movable property was bequeathed to mother of the plaintiffs and defendant are concerned P & SC was filed and taken. Therefore, it can infer that, the plaintiffs have taken the shares and FDR which were bequeathed to them. That is the reason why they have not opposed to the said P & SC filed by the defendant. If really, the plaintiffs have not taken FDR and shares of the different companies they would have contest the P & SC as shown in Ex.D58. This is one of the circumstances to show that, Ex.D21(e) was acted upon.
44. As per the cause title at the time of filing the suit in the year 2014, the plaintiff No.1 was aged about 71 years and plaintiff No.2 is 66 years. Thus, it can be inferred that they were born in 1943 and 1948 respectively. Further, they have also not stated when exactly their marriage was performed. Even if, calculated that after attaining majority their marriage was taken place around in the year 1963 and 1968 respectively. Thus, after the marriage both plaintiffs were residing in their respective husband's house and well settled. Therefore, the testator considering the status of their family that, they are well settled in their respective husband's house, he might have bequeathed FDRs and shares to their share. Thus, even in that angle also the distribution made by the testator appears to be equal, more or less.
37 O.S.No.3111/201445. From the Ex.D1, Katha was changed in respect of the suit schedule property in the name of defendant in the year 1993 on the basis of the Will and subsequently, the defendant No.1 made repair to the suit house as per the Ex.D61 to 91 in the year 2008. Further, the mother of the parties by name Sharada Rao died in the year 2009. In spite of the above fact, why the plaintiffs have not questioned the act of the defendant No.1 has not been demonstrated before the court. It appears they are well aware about the execution of Ex.D21(e) and also they have received the benefit under the said Will. Therefore, immediately after the death of their mother they have not filed the suit against the defendant. No doubt, there is no limitation in this case, but approach of the plaintiffs to the Court is not with bona-fide one.
46. The plaintiffs counsel has stated above, relied upon so many rulings. The said rulings are not applicable to the case on hand for simple reason is that, in this case the father of the plaintiffs himself has written a Will in the diary by putting his signature in the presence of responsible doctor and an advocate.
47. No doubt, the defendant counsel has also relied upon so many rulings as cited above. Out of which, in a ruling reported (1996) 9 SUPREME COURT CASES 324, in the matter of JOYCE PRIMROSE PRESTPR (Mrs) (NEE VAS) v/s. VERA MARIE VAS (Ms) AND OTHERS. In the 38 O.S.No.3111/2014 said decision the Hon'ble Supreme Court pleased to appreciate what is the scope of Halograph Wills. In para No.15 of the Judgment, it is pleased to hold that,
15. While the presumption in the case of ordinary Wills is as stated above, in the case of "holograph Wills", the presumption is all the more
- a greater presumption. Ex.P-1 is a "holograph Will". It is one which is wholly in the handwriting of the testator. The Calcutta High Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar (AIR Cal at p. 552) stated about such a Will, thus:
"The whole of this Will was written in the hand by the testator himself in English. The handwriting is clear and firm. The law makes a great presumption in favour of the genuineness of a holograph Will for the very good reason that the mind of the testator in physically writing out his own Will is more apparent in a holograph Will than where his signature alone appears to either a typed script or to a script written by somebody else."
The writing of the Will and signature of the testator are admitted. There is also due and proper attestation in accordance with the relevant statutory provisions. No suspicious circumstance appears on the face of the document, Ex.P-1. The Will appears to be moderate and rational.
39 O.S.No.3111/2014Viewed from the above angle, there is a great presumption - even bordering on actual proof of the due execution and attestation of the Will. The said ruling is aptly applicable to the case on hand, because in this case also the testator has written the Will in diary in his own handwriting and put his signature. Further, signature therein has been admitted by the plaintiff in her cross-examination. Therefore, the presumption is in favour of the genuineness of the Will.
48. If really the father of the plaintiffs and defendant died intestate, they are entitled for equal share in the suit schedule property. In this case, the father of the plaintiffs when he was hale and healthy has bequeathed the suit schedule property in favour of defendant and the defendant has proved the test enunciated in J.T.Soorappa's case.
49. Further, learned counsel appearing for the defendant rely upon the ruling of Hon'ble Supreme Court reported in AIR 1995 Supreme Court 1684 in the matter of Ravindranath Mukerjee and another V/s. Panchanan Bannerjee (dead by Lrs), it is observed that:-
'The circumstance of deprivation of natural heirs should not raise in suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case 40 O.S.No.3111/2014 of Will. Of course, it may be that, in some cases they are fully debarred and in some cases partly.' The said ruling is aptly applicable to the case on hand merely, because of a Will, right of the plaintiffs is taken away it cannot be said that, the Ex.D21(e) shrouded with suspicious circumstances. Here, the defendant has proved the Will in the manner known to law and dispel all the suspicious circumstances.
50. Further, the plaintiffs have utterly failed to prove that, Will was created and concocted as alleged in the plaint. Though, the plaintiffs/PW.1 has denied the signature of her father they have not taken admitted signature available in the file with the disputed signature for the opinion of the expert. As discussed above, the contents of the Ex.D21(e) in the own handwriting of testator and the said handwriting has not been seriously disputed by the plaintiffs. Therefore, the court can safely come to conclusion that, father of the plaintiffs and defendant has executed the Will as per Ex.D21(e) on 01.01.1988. In view of the said Will the plaintiffs are not entitled for share in the suit schedule property. Accordingly, Re-casted Issue No.2 is answered in the Negative and Re-casted Issue Nos.3 and 4 is answered in the Affirmative.
41 O.S.No.3111/201451. RE-CASTED SSUE No.5:-
The present suit is filed by the plaintiffs for partition and separate possession of their share in the suit schedule property. Along with the plaint, the plaintiffs have also filed the valuation slip valued the subject matter as per Sec.7(2) r/w Sec.35(2) Karnataka Court Fee & Suit Valuation Act, 1958. Market value is shown as 50,00,000/- and accordingly, paid Rs.200/- each to the share of the plaintiffs which is in accordance with law, because in the absence of Ex.D21(e) it has to be construed that, the suit schedule property was in joint possession and enjoyment of the plaintiffs and defendant since they are all the daughter and son of B.Venkataramana Rao and they are bound under Sec.8 of the Hindu Succession Act. Hence, Issue under reference is answered in the Affirmative.
52. RE-CASTED ISSUE No.6:-
This issue is touching the Limitation point. It is admitted fact that, the plaintiffs and defendant are daughter and son of B.Venkataramana Rao and Sharadha Rao. If the Venkataramanarao died intestate, definitely all the plaintiffs and defendant are entitled for 1/3rd share each. In view of the Ex.D21(e) the succession is deviate and accordingly, the plaintiffs have no right over the suit schedule property till declared that Ex.D21(e) is a valid one the possession of the plaintiffs and defendant over the suit schedule property is always joint, though they were married long back. Under such 42 O.S.No.3111/2014 circumstances, the court cannot come to conclusion that suit of the plaintiffs is barred by Limitation. Accordingly, issue under reference is answered in the Negative.
53. RE-CASTED ISSUE NO.7:-
For the reasons discussed in Re-casted Issue Nos 2 to . 4, the plaintiffs are not entitled for the reliefs as claimed in the plaint. Further the defendant who is claiming the suit property under Will dated 01-01-1988 that, his father bequeathed the suit schedule property has been established by the defendant by proving the same. Therefore, the plaintiffs are not entitled for any relief as claimed in the plaint. Accordingly, this issue is answered in the Negative.
54. RE-CASTED ISSUE NO.8:-
For the aforesaid reasons and discussions, I proceed to pass the following:-
ORDER Suit of the plaintiffs is hereby dismissed.
Looking to the relationship among the parties, there is no order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open Court on this the 23rd day of September, 2022).
(BALAGOPALAKRISHNA) XXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.43 O.S.No.3111/2014
ANNEXURE List of Witnesses examined for the plaintiff : P.W.1 - Smt. Shobha Kukillaya List of Documents exhibited for the plaintiff:
Ex.P.1 Khatha Extract
Ex.P.2 Certified copy of sale deed dated
26.07.1984.
Ex.P.2(a) Typed copy of sale deed dated
26.07.1984.
Ex.P.2(b) Copy of affidavit dt:31.03.2021.
Ex.P.3 Xerox copy of order sheet in P & SC
92/1989.
List of Witnesses examined for the Defendant :
D.W.1 - Mrs. Swathi Brahma D.W.2 - Dr. K.Bhagavan D.W.3 - Mrs. Archana Rao Sukeerthy.
List of Documents exhibited for the defendant:
Ex.D.1 Letter dated 24.06.1993
Ex.D.1(a) Signature of B.Sharada Rao
Ex.D.2 to 7 State Bank of Mysore, Current A/c
Pay-in-slip ( 6 in number).
Ex.D.8 to 15 8 more pay-in-slips
Ex.D.16 to 19 4 letters written by B.Venkataramana Rao
Ex.D.20 Handwriting in a Small diary written by
B.Venkataramana
Ex.D.21 Diary (Blue in colour)
Ex.D.21(a & b) Page No.15 & 17 in the small diary Ex.P20
Ex.D.21(c) Page No.16 in the diary
Ex.D.21(d) Page No.20 of the diary
44 O.S.No.3111/2014
Ex.D.21(e) The book Ex.D.21 already marked
containing the last Will executed by
B. Venkataramanarao dated 01-01-1988.
Ex.D21(f) Signature of Venkataramana Rao in Will
(through DW.2)
Ex.D21(g) Signature of Attestor (DW.2)
Ex.D.22 Affidavit sworn by K.Bhagavan
Ex.D.23 & 24 Two death certificates
Ex.D.25 Intimation of allotment.
Ex.D.26 House allotment letter
Ex.D.27 Letter dated 10-11-1969
Ex.D.28 Letter dated 22-06-1984
Ex.D.29 Letter dated 28-06-1984
Ex.D.30 Details of credits dated 13-07-1984
with an annexure.
Ex.D.31 Original sale deed dated 26-07-1984
Ex.D.32 Copy of the letter dated 09-06-1993
Ex.D.33 Uttara patra
Ex.D.34 Khatha certificate
Ex.D.35 Khatha extract
Ex.D.36 Khatha certificate dated 28-11-2018
Ex.D.37 Khatha extract dated 28-11-2018
Ex.D.38 to 55 18 tax paid receipts
Ex.D.56 Copy of the letter dated 19-06-1989
Ex.D.57 Letter dated 22-06-1989.
Ex.D.58 Succession certificate
in P & SC.No.92/1989.
Ex.D.59 Encumbrance certificate
Ex.D.60 Nil Encumbrance certificate
Ex.D.61 to 93 Estimate and bills
Ex.D.94 Letter dated 03-03-1988
Ex.D.95 Letter dated 02-03-1988
Ex.D.96 Letter dated 29-02-1988
Ex.D.97 Letter dated 03-03-1988.
Ex.D.98 & 99 2 Inland Letters
Ex.D.100 Notarized copy of passport.
XXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
45 O.S.No.3111/2014
46 O.S.No.3111/2014