Bangalore District Court
Smt.Anjum Pasha Nee vs Sri.Bob Edward Maddela on 29 July, 2015
Govt. of Karnataka
C.R.P 67
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS.
IN THE COURT OF THE XXVI ADDL. CITY CIVIL JUDGE
AT MAYOHALL BANGALORE.
(CCH-20)
Present:
Sri. Mallareppa Veerappa Jadar, B.Sc., LL.B., (Spl.)
XXVI Addl. City Civil and Sessions Judge
Dated this the 29th day of July 2015
O.S.No.15395/2006 C/w. O.S.NO.25891/2008
O.S.NO.15395/2006
Plaintiffs: 1. Smt.Anjum Pasha nee
Bhagyalakshmi
W/o. Sri.Afroze Pasha and
D/o. Late M.J.Edward,
Major, Residing at No.654,
11th Main, HAL II Stage,
Bangalore - 560 008.
2. Smt.Mahitha Rajalakshmi
Chelladurai
W/o. Sri.N.Chelladurai
D/o. Late M.J.Edward,
Aged about 53 years,
R/o. at C/. Briggs and
Shattern AG,
3rd Wing, Dubai Airport Free
Zone, P.O. Box No.54494,
DUBAI.
2 O.S.15395/2006 & O.S. 25891/2008
3. Smt.Vijaya Warrier
W/o. Mr.Warrier
D/o. late M.J.Edward,
Major, R/o. Block 232,
No.05-148, Simei St. 4.1
SINGAPORE - 5200232
Plaintiffs 2 and 3 are
herewith represented by their
duly constituted Attorney,
the first plaintiff herein.
(By M/s. Sreevatsa Associates, Advocate )
.Vs.
Defendants : 1. Sri.Bob Edward Maddela
S/o. Late M.J.Edward,
Aged about 46 years
R/o. No.269, 1st Floor,
1st Main, Defence Colony,
Bangalore - 560038.
2. Smt.Srilatha
W/o. Sri.P.Shankar
and D/o. Late M.J.Edward
Aged about 51 years
Residing at Flat No.807,
Birch Block, St.Johns
Woods, Tavarekere,
Bangalore - 560 034.
(By Sri.M.A.Sebastian, Advocate)
Date of Institution of suit: 06/03/2006
Nature of the Suit (Suit Partition
for Pronote, Suit for
Declaration and
Possession, Suit for
Injunction, etc.):
Date of Commencement 03/06/2011
3 O.S.15395/2006 & O.S. 25891/2008
of recording of evidence:
Date on which the 29/07/2015
Judgment was
pronounced:
Total Duration:
Years Months Days
09 04 23
( MALLAREPPA VEERAPPA JADAR)
XXVI Addl. City Civil and Sessions Judge
Mayo Hall, Bangalore.
O.S.25891/2008
Plaintiff: Mr.Bob Edward Maddela
Aged 48 years,
S/o. Late M.J.Edwards
R/o. No.269, 1st Floor,
1st Main, Defence Colony
Bangalore - 560 038.
(By M/s. M.A.Sebastian, Advocate )
.Vs.
Defendants : 1. Mrs. Anjum pasha @
Bhagyalakshmi, Aged about
50 years, W/o. Afroze Pasha
2. Mr.Afroze Pasha
Aged about 58 years
S/o. Late Baboo Hyat Saheb
Both residing at
No.654, 11th Main,
HAL II Stage,
Bangalore - 560 008.
4 O.S.15395/2006 & O.S. 25891/2008
(By Sri.Sreevatsa Associates, Advocate)
Date of Institution of suit: 19/06/2008
Nature of the Suit (Suit Ejectment
for Pronote, Suit for
Declaration and
Possession, Suit for
Injunction, etc.):
Date of Commencement 11/12/2009
of recording of evidence:
Date on which the 29/07/2015
Judgment was
pronounced:
Total Duration:
Years Months Days
07 01 10
( MALLAREPPA VEERAPPA JADAR)
XXVI Addl. City Civil and Sessions Judge
Mayo Hall, Bangalore.
5 O.S.15395/2006 & O.S. 25891/2008
COMMON JUDGMENT
1. O.S.15395/2006 :- This is a suit filed by the plaintiffs
against the defendants praying to pass judgment and decree for
partition by metes and bounds and to deliver 1/5th share to the
each of the plaintiff in the plaint schedule property and for such
other reliefs deems fit to grant under the circumstances of the suit.
2. O.S.25891/2008 :-> This is a suit filed by the plaintiff
(who is the defendant No.1 in O.S.No.15395/2008) against the
defendants (who is the plaintiff No.1 in O.S.No.15395/2006 and
her husband) praying to direct the defendants to quit, vacate and
deliver the vacant possession of the schedule premises and to
direct the defendants to pay the plaintiff a sum of Rs.15,000/-
(Rupees fifteen thousand) per month towards damages for use and
occupation of the premises from the date of suit till delivery of
possession and for such other reliefs deems fit to grant under the
circumstances of the suit.
3. The contents of the order sheet of O.S.No.15395/2006
shows that -> This O.S.No.15395/2006 was originally in CCH
No.29. As per the order passed in Misc.No.638/2010 by the Prl.
District and Sessions Judge Court, the O.S.No.15395/2006 is
6 O.S.15395/2006 & O.S. 25891/2008
transferred to this Court (i.e., to CCH.No.20). In the order sheet of
this O.S.No.15395/2006 on dated 26/8/2010 there is an entry to
this effect. On that day, the counsel for the defendant No.1
produced the copy of order passed in Misc.Petition No.638/2010.
Then, as per the order passed in O.S.No.25891/2008 on dated
1/9/2010 on the I.A.No.IV the O.S.No.25891/2008 is clubbed with
this O.S.No.15395/2006 and the parties are directed to adduce
their common evidence in O.S.No.15395/2006.
4. Hence, these two suits are taken up for disposal in
common judgment so as to avoid the repetition of facts in
appreciation of the evidence placed by both the parties.
SCHEDULE PROPERTY of O.S.NO.15395/2006
is as follows:-
All that residential site and building bearing
No.654, 11th Main, HAL II Stage, Bangalore - 560008,
measuring East to West :- 45 feet and North to South :-
60 feet bounded on the
East by :- Property bearing No.653, 11th Main,
West by :- Property bearing No.655, 11th Main,
North by :- 3rd Cross Road,
7 O.S.15395/2006 & O.S. 25891/2008
South by :- Property bearing No.594, 12th Main,
HAL II Stage.
1. The brief facts of the plaint i.e., O.S.15395/2006 are
that :-> The defendants are the brother and sister of plaintiffs, all
being the natural children of late M.J.Edward and Florence Kamala
Edward. The first plaintiff submits that she is a Christian by birth,
she is now a practicing Muslim and the second and third plaintiffs
continue to be and are practicing Christians. The late M.J.Edward
purchased the suit property for which his wife also provided funds
and a residential site was built thereon from funds fully provided
by Mrs.Florence Kamala Edward, mother of the parties and wife of
late M.J.Edwards. The late M.J.Edward was involved in litigation
with HAL, his employer. He was dismissed from service during the
emergency and received no terminal benefit and his very
subsistence was dependent on the earnings of the wife and
daughter. Mrs. Florence Kamala Edward, mother of the parties
hereto was also working in HAL.
2. The plaintiff in para No.5 of the plaint and in further
paragraphs submits that -> M.J.Edwards passed away on
2/2/1989 at Masanagudi, Tamilnadu, leaving behind him plaintiffs
8 O.S.15395/2006 & O.S. 25891/2008
and the defendants as his legal heirs. After the death of
M.J.Edwards, though the parties hereto had become entitled to
shares in the plaint schedule property the katha of the plaint
schedule property was transferred to the name of his wife and the
mother of the parties hereto, Smt.Florence Kamala Edward, out of
deference to her being the eldest member of the family. The parties
to the suit jointly enjoyed the plaint schedule property thereafter.
In fact the first plaintiff even on date is in actual physical
occupation of the same. Smt.Florence Kamala Edwards passed
away at Bangalore on 30/4/1996. The first plaintiff submits that
she even though born as a Christian, the fact that first plaintiff is
now a practicing Muslim will not affect her rights to succeed to the
plaint schedule property. The first plaintiff is in actual physical
possession and enjoyment of the plaint schedule property and the
other two plaintiffs are in constructive possession of the suit
schedule property as they come and stay in the plaint schedule
property whenever at Bangalore.
3. The plaintiff in para No.9 and in further paragraphs
submits that -> In January 2006 when they demanded their
respective 1/5th shares in the plaint schedule property be
9 O.S.15395/2006 & O.S. 25891/2008
demarcated by metes and bounds and delivered to them, the
defendants refused to do so. The cause of action for this suit arose
on 2/2/1989, 30/4/1996, in January 2006.
4. With these main averments along with other averments
prays to decree the suit as prayed in the plaint.
5. After service of suit summons the first defendant
appeared through his advocate and filed written statement denying
the plaint averments specifically which are against their interest
stating that :-> Suit is not maintainable both in law and on facts.
The suit schedule property is the self acquired property of
Mr.M.J.Edward having purchased the same from the Bangalore
City Improvement Trust Board (CITB) under a registered lease-
cum-sale agreement dated 26/11/1971. The Bangalore CITB have
also executed a registered sale deed on 18/3/1986 in favour of
Mr.M.J.Edward. M.J.Edward died on 2/2/1989, leaving behind a
registered WILL dated 25/4/1977 and registered as document No.6
of 1977-1978, Book-IV Volume 41, at pages 167 to 173, registered
before the Sub-Registrar, Shivajinagar, Bangalore. The averment
that-> Mrs.Florence Kamala Edward W/o. M.J.Edward providing
funds for the purchase of the property and construction of the
10 O.S.15395/2006 & O.S. 25891/2008
house is denied. Mr.M.J.Edward was an employee of HAL,
Bangalore and had sufficient funds for the purchase of the
schedule property and for the construction of the house.
M.J.Edward had availed loan as per the scheme of Government of
Mysore by mortgaging the property with Mysore Housing Board and
put up the construction in the schedule premises. The defendants
have admitted that Mrs.Florence Kamala Edward, the mother of
these defendants was also working as a teacher in HAL school but
she has not contributed anything for the purchase or construction
of the house in the suit schedule property.
6. In the para No.4 and in further paragraphs of written
statement, defendants have submitted that-> the averments made
in para No.5 of the plaint that -> Mr.M.J.Edward passed away on
2/2/1989, he left behind the plaintiffs, defendants and his wife as
legal heirs are admitted as true. But the plaintiffs and the second
defendant do not succeed to his estate as during his life time he
bequeathed the property owned by him under a registered WILL
dated 25/4/1977. The WILL dated 25/4/1977 is very clear that the
plaintiffs or second defendant has no right over the suit schedule
property. Earlier the katha of the property was transferred in the
11 O.S.15395/2006 & O.S. 25891/2008
name of the mother with the consent of all the parties hereto as a
matter of respect and goodwill to the mother and for convenience of
payment of tax. After the death of mother on 30/4/1996, the first
defendant became the absolute owner of the property. At the time
of the death of the mother, the first defendant was working abroad
and as such from 1996 to 1998 the suit schedule premises was not
occupied by anybody. In the year 1998 Mr.N.Chelladurai, the
husband of the second plaintiff occupied the premises as a tenant
paying a rent of Rs.5,000/- per month. In the year 2000,
Mr.N.Chelladurai vacated the premises and in the month of
October 2000, the first plaintiff sought the permission of this
defendant to occupy the premises, as the property belonging into
Mr.Afrose Pasha, the husband of the first plaintiff, situated at
Cambridge Layout was getting demolished for re-construction. The
first plaintiff and her husband agreed to pay a rent of rs.5,000/-
per month initially which was waived by the first defendant as a
matter of goodwill. When they were asked to vacate, the first
plaintiff agreed to pay a monthly rent of Rs.15,000/- from 1st
March to June 2005 vide e-mail communication dated 26/3/2005.
This offer was made by the first plaintiff when the first defendant
returned to India with family and required the suit schedule
12 O.S.15395/2006 & O.S. 25891/2008
premises for his bonafide use and occupation. The offer was
declined by this defendant as first defendant required the premises
for his bonafide use and occupation as he is paying a rent of
Rs.16,000/- per month. The statement that, on the death of the
mother, the parties to the suit is entitled for her 1/5th share in the
suit schedule premises is absolutely false. Since the original owner
of the property Mr.M.J.Edward being a Christian, the provisioni of
Indian Succession Act is applicable to the case. As per the
provision of Indian Succession Act, the question of partition arise
only in case of intestate succession and not otherwise.
7. In para No.6 and in further paragraphs of written
statement first defendant has submitted that -> Since the first
plaintiff has changed her religion, disentitled from claiming any
successions right. Otherwise, even the plaintiffs does not have any
right over the suit schedule property by virtue of the WILL dated
25/4/1997. The possession of the first plaintiff over the suit
schedule property is as that of a tenant and it is a well settled
principal of law that once a tenant, always a tenant. The first
plaintiff's possession is a permissive possession and the alleged
constructive possession of the plaintiffs No.1 and 2 is non-existent.
13 O.S.15395/2006 & O.S. 25891/2008
8. In para No.12 and in further paragraphs of the written
statement, defendant submits that the suit schedule premises is
the self acquired property of the father of the plaintiffs and
defendants and the property is inherited by this defendant as per
the WILL dated 25/4/1977. This defendant applied for the transfer
of katha in the name of this defendant to the Bangalore
Mahanagara Palike. The first plaintiff has objected for the transfer
of the katha which was over ruled by the Assistant Revenue Officer.
Against the said order, the first plaintiff has preferred a Revision
Petition before the Deputy Commissioner, Bangalore Mahanagara
Palike and the katha of the property stands in the name of this
defendant. The property mortgaged in favour of Mysore Housing
Board by Sri.M.J.Edward (father of plaintiffs and defendants) for
raising the funds for the construction of the building under two
separate Mortgage Deed dated 23/3/1973 and 23/9/1974 were
discharged with the funds of this defendant. The sole intention of
the plaintiffs is to enjoy the suit schedule property without paying
rents and as such the suit is liable to be dismissed. With these
main averments along with other averments prays to dismiss the
suit with exemplary costs.
14 O.S.15395/2006 & O.S. 25891/2008
9. On the basis of pleadings of both the parties, my
predecessor in office has framed in all 8 issues. The said issues 1 to
8 are as follows :-
ISSUES
O.S.NO.15395/2006
1. Whether plaintiffs prove that father of
plaintiffs and defendants has purchased the
properties bearing No.654, 11th Main, HAL
2nd Stage, Bangalore, out of the PF of their
mother residential house was built there on?
2. Whether plaintiffs proves that they have got
each 1/5th share in the suit schedule
property?
3. Whether defendant No.1 proves that suit
schedule property was self acquired property
of their father?
4. Whether defendant No.1 proves that under
the WILL executed by their father he become
absolute owner of the property?
5. Whether defendant No.1 proves that
husband of the 2nd defendant occupied the
15 O.S.15395/2006 & O.S. 25891/2008
schedule premises as tenant on monthly
rent of Rs.5,000/-?
6. Whether 1st defendant proves that 1st
plaintiff cannot claim share in view of
change of her religion?
7. Whether the plaintiffs are entitled for the
relief's sought for?
8. What decree or order?
Schedule property of O.S.No.25891/2006 is as follows :-
All that residential building bearing No.654, 11th Main,
HAL II Stage, Bangalore - 560008, measuring East to West :-
45 feet and North to South :- 60 feet and bounded on the
East by :- Property bearing No.653, 11th Main,
West by :- Property bearing No.655, 11th Main,
North by :- 3rd Cross Road,
South by :- Property bearing No.594, 12th Main,
HAL II Stage.
10. The suit in O.S.No.15395/2006 filed for partition and
separate possession is clubbed with the O.S.No.25891/2008 (filed
by the defendant No.1 of O.S.No.15395/2006) for delivery of
possession.
16 O.S.15395/2006 & O.S. 25891/2008
11. The brief contents of plaint of O.S.No.25891/2008 are
as follows :-
The suit schedule property was originally allotted by the BDA in
favour of Sri.M.J.Edward, father of the plaintiff. The BDA executed and
registered an absolute sale deed in favour of Sri.M.J.Edward on
18/3/1986 after having paid the full value to the property. The property
was allotted to the Mr.M.J.Edward in the year 1971 and was put in
actual possession by BDA in 1972. Mr.M.J.Edward mortgaged the
property in favour of Mysore Housing Board vide registered deed dated
23/3/1973 for Rs.25,000/- for the construction of a house.
Subsequently on 23/9/1974 an additional sum of Rs.2,500/- was
availed by M.J.Edward by executing and registering a mortgage deed.
12. In para No.3 and in further paragraphs of the plaint,
plaintiff has pleaded that -> the suit schedule property is the self
acquired property of the father of the plaintiff, M.J.Edward. M.J.Edward
was an employee of HAL and he has four daughters and one son. The
father of the plaintiff constructed a house with his salary and the loan
availed from Karnataka Housing Board. The housing loan on the
schedule property was cleared by the plaintiff by the year 1990 with the
savings from his salary while working abroad. Mr.M.J.Edward died on
2/2/1989 leaving behind a registered WILL dated 25/4/1977 and
17 O.S.15395/2006 & O.S. 25891/2008
registered as document No.6 of 1977-78, Book - IV, Volume - 41 at
pages 167 to 173 before Sub-Registrar, Shivajinagar, Bangalore. The
plaintiff was working in Dubai from 1984 and he had been looking after
his father and mother in their old age and also had been looking after the
mother after the death of his father. The plaintiff had repaid the
mortgage loan and got the property discharged from Karnataka Housing
Board. Since the plaintiff was working abroad and after the death of the
father, the youngest sister of the plaintiff by name Vijaya was helping the
mother and staying with her in the suit schedule premises till her
marriage on 9/7/1995. On the death of the mother on 30/4/1996, the
house fell vacant and for three years from 1997 to 2000, the plaintiff's
brother-in-law by name Chelladurai, occupied the premises gratutorily.
13. In para No.6 and in further paragraphs of the plaint, plaintiff
has submitted that -> defendants requested the plaintiff for a short term
accommodation in the suit schedule premises in the year 2000 as the
property of the second defendant on Cambridge Road, Bangalore, was
under demolition and reconstruction. The plaintiff obliged and the
possession was given to the defendants. The plaintiff returned to India in
2003 and demanded possession of the suit schedule premises for his
own use and occupation. Since the building of the defendant was under
construction, the defendants sought for some more time to vacate. the
defendants agreed to pay a rent of Rs.15,000/- per month from March
18 O.S.15395/2006 & O.S. 25891/2008
2005, vide e-mail dated 26/3/2005. Inspite of promise to pay rent, the
defendants did not pay the rents to the plaintiff and plaintiff got issued a
notice dated 28/2/2006 calling upon the defendants to pay the rent of
Rs.15,000/- per month from 1/3/2005 and also demanded to quit,
vacate and deliver vacant possession of the schedule premises. On
receipt of the notice the first defendant filed a case before the City Civil
Court, in O.S.no.15395/2006 for partition and other reliefs. After
plaintiff returning from abroad, applied for the transfer of katha of the
property to his name. The first defendant had objected for the same
before the Bangalore Mahanagara Palike and the Assistant Revenue
Officer over ruled the objections and transferred the Katha in the name
of the plaintiff. The first defendant preferred a Revision Petition before
the Deputy Commissioner, Bangalore Mahanagara Palike in Revision
Petition No.JC(E)PS/63/2005-06 which Revision Petition is also
dismissed.
14. In para No.10 and in further paragraphs of plaint, plaintiff
submitted that -> On receipt of the legal notice, the first defendant along
with the two of her siblings filed a suit for partition against the plaintiff
and another sister of the plaintiff. The defendant suppressed material
facts of existence of the WILL and the proceedings before the revenue
authorities and claimed 1/5th share in the suit schedule premises. The
plaintiff is a Christian by religion and the first defendant is a Christian
19 O.S.15395/2006 & O.S. 25891/2008
who got converted to Islamic Religion after marriage with the second
defendant. As per the Indian Succession Act, the owner of the property
has got absolute right to bequeath his property to whomsoever he wishes
and the plaintiff has become the absolute owner of the suit schedule
property by virtue of the WILL. The first defendant has filed the original
suit for partition with an intention to delay the delivery of the possession
of the suit schedule property to the plaintiff. The defendants are tenants
of the suit schedule property and they have agreed to pay a rent of
Rs.15,000/- per month to the plaintiff. The defendants are squatting on
of the property inspite of they having rebuilt their own building in
Cambridge Road, Bangalore and rent it out for a sum of Rs.2,00,000/-
per month. On the other hand, the plaintiff is living in a rental premises
paying a monthly rent of Rs.19,000/-. The cause of action for the suit
arose on 28/3/2006 and subsequently within the jurisdiction of this
Hon'ble Court. The defendants are liable to pay the arrears of rent from
1/3/2005 and the plaintiff crave learn to file a separate suit for arrears
of rent/damages for the use and occupation of the premises and the
present suit is restricted for ejectment of the defendants. With these
main averments along with other averments prays to decree the suit.
15. After service of suit summons, defendants have appeared
through their advocate and filed written statement denying the plaint
averments specifically which are against her interest stating that :-
20 O.S.15395/2006 & O.S. 25891/2008
> The averments made in plaint para No.2 are misleading. The suit
schedule property was allotted as a vacant site to late M.J.Edwards
by the BDA. The price for the said site was also provided by his wife
Mrs.Florence Kamala Edward (deceased), the mother of the plaintiff
and the first defendant. M.J.Edward was engaged in litigation with
his employer HAL Ltd and was dismissed from service and no
terminal benefits were given to him and he was dependent on his
wife Mrs.Florence Kamala Edward, who was also working in HAL
and the daughters, including the first defendant. The construction
on the site so allotted by the BDA (ought to be is made on money
given or) provided by the said Mrs.Florence Kamala Edward and
daughters of late M.J.Edward. He had no money to pay for the
construction. Mortgaging the suit property to the Mysore Housing
board on 23/3/1973 and borrowing Rs.25,000/- and a further sum
of Rs.2,500/- on 23/9/1974 is admitted but denied the
contribution of M.J.Edward as he was not earning any money and
all monies came from Said Mrs.Florence Kamala Edward and her
daughters.
16. In para No.4 and in further paras submitted that -> The
suit property is not the self acquired property of late M.J.Edward. It
21 O.S.15395/2006 & O.S. 25891/2008
was purchased and developed for the benefit of the family, using
funds provided by members of the family as aforesaid. Death of
M.J.Edward on 2/2/1989 is admitted, but denied that he left any
WILL and the testator of the document had no authority to make
the said WILL and in any event he was not in a sane or disposing
state of mind when he made that document. The first defendant
and others have filed a suit for partition and in that case the first
issue framed in that case calls upon the plaintiff herein to prove
the WILL. After the death of M.J.Edward, katha of the property was
transferred to the name of Mrs.Florence Kamala Edward and on
her death on 9/7/1995, the suit property devolved on all the
children of the deceased in equal shares. The house was occupied
as a matter of right by one of the first defendant's other sister and
her husband from 1997 to 2000 and thereafter by the first
defendant and her husband, the second defendant, again as a
matter of right and not under the plaintiff as is sought to be
asserted.
17. In para No.7 and 8 of written statement, the first
defendant has denied the averments of plaint para No.6 and 7 and
22 O.S.15395/2006 & O.S. 25891/2008
submitted that -> mail produced as an annexure to the plaint is
denied as a fabricated and concocted document.
18. In para No.9 and further paragraphs of written
statement the first defendant has submitted that -> There is no
relationship of landlord and tenant between the plaintiff and the
first defendant. The present suit for ejectment of the first defendant
is not maintainable in law. The transfer of katha does not create
title in favour of the plaintiff and it also does not create any
relationship of landlord and tenant between the plaintiff and the
first defendant. Late M.J.Edward was not the absolute owner of the
property. It had been purchased in his name for the benefit of the
family and the costs of acquisition and development was borne and
paid by the said Mrs.Florence Kamala Edward and daughters. The
Late M.J.Edward had no right to bequeath the property as he is
alleged to have done and which has been denied. It is denied that
this defendant is tenant under the plaintiff in respect of the suit
property on a monthly rent of Rs.15,000/- and there is no cause of
action to file the suit against the defendant and also there is no
liability to pay rent on the part of this defendant on account of her
occupation of the suit premises. The plaintiff has alleged and
23 O.S.15395/2006 & O.S. 25891/2008
averred that the suit is for possession (not ejectment), this being
the admitted position, then the suit as filed for a mere possession is
not maintainable without the first relief of declaration being sought
and court fee has to be paid on the market value of the property.
With these main averments along with other averments prays to
dismiss the suit with exemplary costs.
19. Based on the above pleadings of the parties, following
issues are framed.
ISSUES
O.S.NO.25891/2008
1. Whether plaintiff proves that there is a
landlord and tenant relationship between
himself and defendants?
2. Whether suit in the present form for mere
possession is maintainable?
3. Whether plaintiff proves that as landlord
he has terminated the tenancy of defendant?
4. Whether plaintiff is entitled for damages
sought for?
24 O.S.15395/2006 & O.S. 25891/2008
5. Whether plaintiff is entitled for the relief's
sought for?
6. What decree or order?
20. In O.S.No.25891/2008 plaintiff lead evidence on
7/12/2009 as P.W.1 and in all 26 documents are marked as
exhibit P.1 to P.26. Thereafter on 1/9/2010 orders on I.A.No.IV in
O.S.No.25891/2008 is passed and this O.S.No.25891/2008 is
clubbed with O.S.No.15395/2006. Hence, after passing of orders
on 1/9/2010 to adduce the common evidence in
O.S.No.15395/2006. The evidence adduced by the plaintiff of
O.S.No.15395/2006 is to be numbered as P.W.1, P.W.2 etc., in
view of Rule 55(1) of Civil Rules of Practice and the documents
produced and got marked by the plaintiff of O.S.No.15395/2006 is
to be marked as Ex.P.1 and Ex.P.2 etc., in view of Rule 85(1)(a) of
Civil Rules of Practice. Accordingly the evidence adduced by the
defendant of O.S.No.15395/2006 who is the plaintiff in
O.S.No.25891/2008 is to be numbered as D.W.1, D.W.2 in view of
Rule 55(2) of Civil Rules of practice stated above and the
25 O.S.15395/2006 & O.S. 25891/2008
documents produced by him are to be marked as Ex.D.1, Ex.D.2
etc., in view of Rule 85(1)(b)of said rules.
21. Accordingly the evidence lead by the plaintiff of
O.S.No.15395/2006 on 29/1/2011 hold as evidence of P.W.1 and
the evidence adduced by the defendant of said O.S.No.15395/2006
who is the plaintiff of O.S.No.25891/2008 on 7/12/2009 is though
earlier to the evidence of P.W.1 dated 29/1/2011. It is hold as the
evidence of the D.W.1 by invoking Rule 55(2) of Civil Rules of
Practice as the rank of the P.W.1 of O.S.25891/2008 in
O.S.No.15395/2006 is the defendant and the documents marked
by him as P.W.1 as Ex.P.1 to Ex.P.26 which are subsequently
marked as Exhibit P.1(a) to P.26(a) are renumbered as Ex.D.1 to
Ex.D.26 by invoking the Rule 85(1)(b) of Civil Rules of Practice.
22. After clubbing of both the suits on 29/6/2011 the
plaintiff of O.S.No.25891/2008 who is defendant No.1 of
O.S.15395/2006 filed additional affidavit evidence as D.W.1 on
29/6/2011. Then on 2/7/2011 the said D.W.1 produced additional
documents marked as Ex.D.1 to Ex.D.5. The said Ex.D.1 to Ex.D.5
are now numbered as Ex.D.27 to Ex.D.31, as already the
26 O.S.15395/2006 & O.S. 25891/2008
documents produced by this witness as P.W.1 in
O.S.No.25891/2008 which were marked as Ex.P.1 to Ex.P.26 are
renumbered as Ex.D.1 to Ex.D.26. Then on 26/9/2011 one witness
Mr.M.R.V.Prasad son of the first attesting witness to the WILL was
examined as D.W.2 and Ex.D.1 and Ex.D.2 are marked through
him, are renumbered as Ex.D.32 and Ex.D.33 by invoking above
said Civil Rules of Practice.
23. In connection of these suits, the plaintiff of
O.S.No.15395/2006 filed the Writ Petition No.39812/2012 and the
Hon'ble High Court of Karnataka vide order dated 18/11/2011
disposed of the Writ Petition, giving liberty to the respondent i.e.,
defendant No.1 to lead the evidence with regard to the death or
unavailability of the witnesses to the WILL dated 25/4/1977 and
thereafter to seek permission to let-in evidence of the other
witnesses. Hence in compliance of the direction of the Hon'ble High
Court of Karnataka, the death certificate of identifying witness to
the executant of the WILL Mr.K.B.Swaminathan, advocate is
produced and marked as Ex.D.3 and Ex.D.4, are subsequently
renumbered as Ex.D.34 and Ex.D.35 by invoking above said Civil
Rules of Practice.
27 O.S.15395/2006 & O.S. 25891/2008
24. After closure of evidence, posted for arguments. The
counsel for both the parties have filed their written arguments. The
counsel for the plaintiff of O.S.No.15395/2006 in his written
argument has submitted that -> The plaintiff and the defendants of
O.S.No.15395/2006 being the children of Mr.M.J.Edward
(deceased) there is no dispute about the relationship. The
O.S.No.15395/2006 is filed for partition and separate possession of
1/5th share in the house property. The defence of the defendant is
that :-> His father bequeathed the entire property in his favour
under the WILL. Burden of proving the WILL is on him. the said
defendant Mr.Bob Edward Maddela filed an application to examine
two witnesses on the ground that two attesting witnesses were
dead. This application was objected. But this Hon'ble Court allowed
the application. The said order was challenged by the plaintiff of
O.S.No.15395/2006 in W.P.No.39812-39813 of 2011 (GM-CPC). In
the order dated 18/11/2011, the respondent No.1 is granted
liberty. It was incumbent upon the defendant Mr.Bob Edward
Maddela to lead evidence to prove both attesting witnesses were
dead. Only thereafter he could be permitted to lead further evidence
to prove the WILL under Section 69 of Indian Evidence Act. He
28 O.S.15395/2006 & O.S. 25891/2008
examined Mr.M.R.V. Prasad. But no evidence were lead to prove
that attesting witnesses were dead. He also examined one
Mr.T.S.Lucas, Head Master of School of Vimanapura, on the
evidence of this witness, the death of either of attesting witness is
not proved. Hence it cannot be said that defendant of
O.S.No.15395/2006 has proved the WILL of his father. The WILL
not being proved and the relationship between the parties being
admitted. Hence, suit filed by the defendant in O.S.No.25891/2008
is to be dismissed and the suit filed by this plaintiff in
O.S.No.15395/2006 for partition is to be decreed. Accordingly, filed
the written arguments.
25. The counsel for the defendant of O.S.No.15395/2006
has also filed the written arguments contending that -> The
O.S.No.15395/2006 is filed for relief of partition and separate
possession. Parties are Christians by religion. According to plaintiff,
her father purchased the property, for which her mother also
provided the fund. The residential house is constructed with the
fund fully provided by her mother Mrs.Florence Kamala Edward.
Though born as a Christian, the plaintiff adopted Muslim religion
will not affect her right of succession. Hence, suit is filed for
29 O.S.15395/2006 & O.S. 25891/2008
claiming 1/5th share in the plaint schedule property. The
defendants case in written statement is that -> Relationship is
admitted. The averments that property is purchased on the funds
provided by the wife of Mr.M.J.Edward and house is constructed on
the fund provided by the wife of Mr.M.J.Edward is denied as false.
The father Mr.M.J.Edward was employee of HAL, he had sufficient
funds for purchase of schedule property and he availed the loan
from the Mysore Housing Board for construction of the house. His
wife Florence Kamala Edward has not contributed anything for
purchase or for construction. The father bequeathed the property
under the registered WILL on dated 25/4/1977. He died on
2/2/1989 as mentioned in Ex.D.4. Then katha changed in the
name of his wife Mrs.Florence Kamala Edward, as matter of respect
and good will. She also died on 30/4/1996. The plaintiff is the
tenant in the suit schedule property and it is well settled that once
tenant always tenant. Accordingly narrated in the written argument
regarding the pleadings of the parties.
26. Further submitted stating that -> In the evidence the
defendant has clearly stated that -> schedule property was the self
acquired property of his father Mr.M.J.Edward. No contribution
30 O.S.15395/2006 & O.S. 25891/2008
was made by his wife i.e., Florence Kamala Edward. This defendant
acquired property under the WILL Ex.P.23. Subsequently marked
as Ex.D.23. Ordinarily, WILL is to be proved by the profounder of
the WILL by examining any one of the attesting witness as per
Section 68 of Evidence Act. But, since both the attesting witness
and the scribe died, the WILL is to be proved as per Section 69 of
Evidence Act. As per the direction in W.P.No.39812/2012, this
defendant No.1 led evidence with regards to the death and
unavailability of both attesting witnesses. The D.W.2 has identified
the signature of his father on the WILL, who is the son of 1st
attesting witness, said signature is marked as Ex.P.23 (a) (c)->
[Subsequently, marked as Ex.D.23(a)] the D.W.3 and D.W.4
evidence proved that the testator late M.J.Edward was hail and
healthy at the time of executing the WILL Ex.P.23(a) ->
[subsequently marked as Ex.D.23].
27. Hence the defendant proved the issues casted on him.
The plaintiff is in possession as tenant under this defendant.
Tenancy is terminated by issuing notice. Hence, there is due
compliance of Section 106 of T.P.Act. Hence, it is prayed to dismiss
the suit filed by plaintiff in O.S.No.15395/2006 for partition and
31 O.S.15395/2006 & O.S. 25891/2008
prays to decree the suit filed by this defendant in O.S.25891/2008
for eviction. Accordingly, filed the detail written arguments.
28. The counsel for the defendant of O.S.No.15395/2006
who is counsel for plaintiff of O.S.No.25891/2008 has filed memo
with copy of citations they are :->
1) Copy of W.P.No.39812/2011 order dated 18/11/2011. In
this, at para No.8, liberty is given to the 1st respondent who is
the defendant No.1 of O.S.No.15395/2006 and the plaintiff of
O.S.No.25891/2008 to file fresh application seeking
permission to furnish the list of witnesses and to examine
them after the trial court records satisfaction about the death
or unavailability of the attestors of the WILL in question.
2) AIR 1964 SC 529 in a case Shashikumar Banerjee
and others V/s. Subodh Kumar Banerjee regarding ->
when court would grant probate.
3) AIR 2004 GAU 23, Head note 'B' para NO.13
regarding mode of proof of WILL.
32 O.S.15395/2006 & O.S. 25891/2008
4) AIR 1927 Madras page 662, head note 'B' regarding
evidentiary value under Section 69 when attestor dead.
5) AIR 1929 SIND 235 at page 235 regarding "if no
witnesses are available, then how to prove the WILL
under Section 69 of Evidence Act."
6) AIR (38) 1951 CAL 305, Head Note 'A' regarding the
principle that -> expert opinion is of little value.
7) AIR 1938 Patna page 497, Head Note 'B'
8) AIR 1952 Rajasthan page 102. These two citations
i.e., 7 & 8 are regarding Section 47 of Evidence Act.
9) AIR 1993 Patna Page 129, Head Note 'B' regarding
Section 69 and 90 of Evidence Act.
10) AIR 2000 NOC 20 AP, Head note 'A' and 'B'
regarding Section 68 and 90 of Evidence Act.
11) AIR 1978 Cal 312, Head note (B) regarding section
90 of Evidence Act.
and other citations in connection with the mode of proof of WILL
and regarding Sections 69 and 90 of Evidence Act.
33 O.S.15395/2006 & O.S. 25891/2008
29. After hearing the arguments, posted for judgment.
30. My answer to the issues framed in O.S.No.15395/2006
are as follows :-
ISSUE NO.1 :- In the partly affirmative
stating that the father of the
plaintiff purchased the site
and constructed the house on
it by raising loan
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 affirmative,
ISSUE NO.7 :- As per final order
31. My answer to the issues framed in O.S.25891/2008 are
as follows :-
ISSUE NO.1 :- In the negative,
ISSUE NO.2 :- Suit for possession is
maintainable,
ISSUE NO.3 :- Issued notice claiming for
possession
34 O.S.15395/2006 & O.S. 25891/2008
ISSUE NO.4 :- In the negative,
ISSUE NO.5 :- In the partly affirmative,
ISSUE NO.6 :- As per final order
for the following
REASONS
32. O.S.No.15395/2006 is filed for the relief of partition and
separate possession of 1/5th share in the suit schedule property.
O.S.No.25891/2008 is filed for the relief of vacant possession. The
scope of suit in O.S.No.15395/2006 filed for partition and separate
possession is wider than the scope of suit filed in O.S.25891/2008
for eviction. Hence, among these two suits, the suit in
O.S.No.15395/2006 is taken up for discussion.
33. ISSUE NO.1 IN O.S.15395/2006 :- This Issue is on
the plaintiff. In this Issue, plaintiff of O.S.No.15395/2006 has to
prove that -> father of the plaintiffs and the defendant No.1 has
purchased the property bearing No.654, 11th Main, HAL 2nd Stage,
Bangalore, out of P.F. of their mother and residential house was
built thereon. In the plaint of O.S.No.15395/2006 the plaintiff has
pleaded in para No.4 stating that -> The father of the plaintiff,
Mr.M.J.Edward purchased the above said property, for which his
35 O.S.15395/2006 & O.S. 25891/2008
wife Mrs.Florence Kamala Edward, mother of the plaintiff and
defendant No.1, also provided the funds and the residential house
was built thereon. On the other hand, the defendant has filed the
written statement denying this averment of plaint para No.4 in his
written statement by pleading at para No.3 of written statement
stating that -> the averments in para No.4 of the plaint is denied as
false. The suit schedule property is the self acquired property of
Mr.M.J.Edward, having purchased the same from Bangalore City
Improvement Board, under registered lease-cum-sale agreement
dated 26/11/1971. The Bangalore City Improvement Trust Board
have also executed a registered sale deed on 18/3/1986 in favour
of Mr.M.J.Edward i.e., father of the plaintiffs and defendant No.1.
In the light of these pleadings, this Issue No.1 is raised in
O.S.No.15395/2006. To prove her case, the plaintiff of
O.S.No.15395/2006 has filed the affidavit by way of examination-
in-chief by reiterating the above said averments of plaint in para
No.3 of the affidavit. No documents are produced by her in support
of her claim. On the other hand, the defendant of this suit who is
the plaintiff in O.S.No.25891/2008 has filed the affidavit by way of
examination-in-chief as P.W.1 on 7/12/2009 in O.S.25891/2008
filed by him against the plaintiff of O.S.No.15395/2006 and the
36 O.S.15395/2006 & O.S. 25891/2008
documents produced by him are got marked as Ex.P.1 to Ex.P.26.
Thereafter, this O.S.25891/2008 is clubbed in O.S.15395/2006,
by passing order on I.A.No.IV in O.S.15395/2006 on 1/9/2010.
Hence the rank of this P.W.1 is now renumbered as D.W.1 by
invoking Rule 55(2) of Civil Rules of Practice and documents
marked as exhibit P.1 to P.26 (Ex.P.1(a) to Ex.P.26(a) are
renumbered as Ex.D.1 to Ex.D.26 by invoking Rule 85(1)(b) of Civil
Rules of Practice. This witness has filed additional affidavit by way
of examination-in-chief as D.W.1 on 29/6/2011 and produced five
documents on 2/7/2011. They are marked as Ex.D.1 to Ex.D.5 are
renumbered as Ex.D.27 to Ex.D.31 as the documents produced by
him in O.S.No.25891/2008 as Ex.P.1 to Ex.P.26 (Ex.P.1(a) to
Ex.P.26(a) are renumbered as Ex.D.1 to Ex.D.26 after clubbing the
O.S.No.25891/2008 with O.S.No.15395/2006 as per the order on
I.A.No.IV passed on 1/9/2010 in O.S.15395/2006. On perusal of
the evidence of this witness (who filed affidavit as P.W.1 in
O.S.25891/2008 which is subsequently renumbered as D.W.1 after
clubbing of this O.S.No.25891/2008 with O.S.No.15395/2006) it
is seen that -> he filed the affidavit by reiterating the plaint
averments of O.S.25891/2008. In the additional affidavit filed on
29/6/2011 as D.W.1, has reiterated the averments of the written
37 O.S.15395/2006 & O.S. 25891/2008
statement of O.S.No.15395/2006, in which he denied the claim of
the plaintiff of O.S.No.15395/2006 that -> The plaintiff's mother
has contributed the money for purchase of the site. It is in para
No.4 of the affidavit of the D.W.1 on dated 29/6/2011.
34. Among the documents produced by D.W.1 including the
documents renumbered as Ex.D.1 to Ex.D.31, Ex.D.30 is the
absolute sale deed dated 18/3/1986 standing in the name of
Mr.M.J.Edward S/o. Mr.M.Joseph, who is the father of the plaintiff
of O.S.No.15395/206 and the father of defendant No.1 of said suit.
In this it is mentioned that -> The purchaser Mr.M.J.Edward i.e.,
the father of the plaintiff is the absolute owner. Nothing is
mentioned in the sale deed to show that -> the Mrs.Florence
Kamala Edward, the mother of the plaintiff has contributed the
amount for purchase. Though plaintiff has pleaded in the plaint
stating that -> house is constructed over the said property by
utilizing the money of her mother and also sworn in her affidavit
filed by way of examination-in-chief as P.W.1 in
O.S.No.15395/2006 to that effect. But, no document is produced
by her in support of her evidence sworn in affidavit as P.W.1 to
prove that her mother Mrs.Florence Kamala Edward has
38 O.S.15395/2006 & O.S. 25891/2008
contributed the money for purchase of the site and also for
construction of the house over it. All these materials establishes
that the father of the plaintiff alone has purchased the said site
under the sale deed dated 18/3/1986 for valuable consideration of
Rs.6,000/- (Rupees six thousand) without the financial aid by the
other persons. Hence, on all these grounds I hold that -> plaintiff
has failed to prove that her father purchased the house site out of
P.F. amount of the plaintiff's mother and residential house was
built there on. But it is proved on the evidence placed by the D.W.1
that -> father of the plaintiff and the father of the D.W.1 who is
M.J.Edward has purchased the said property on his own earning
and not by utilizing the money of his wife Mrs.Florence Kamala
Edward i.e., mother of the plaintiff. There is no controversy
between the parties regarding the purchase of the said site by their
father. The only controversy is that -> According to plaintiff of
O.S.No.15395/2006, it was purchased from the money of their
mother and the house is constructed on it by utilizing the money of
the plaintiff's mother, which is specifically denied by defendant
No.1 of O.S.No.15395/2006. Purchase of the site by the father of
the plaintiffs and the defendant No.1 of O.S.15395/2006 who is
one Mr.M.J.Edward is supported by the contents of the affidavit of
39 O.S.15395/2006 & O.S. 25891/2008
plaintiff Mr.Bob Edward, filed by way of examination-in-chief in
O.S.No.25891/2008 on dated 7/12/2009 as P.W.1 which is
subsequently renumbered as evidence of D.W.1 after clubbing this
O.S.No.25891/2008 with O.S.No.15395/2006. In this affidavit at
para No.3 this D.W.1 Bob Edward Maddela (defendant No.1 of
O.S.No.15395/2006) has sworn that -> the suit schedule property is
the self acquired property of my father Mr.M.J.Edward who was an
employee of H.A.L. "The property was purchased by my father after
selling his house at Nagarampalam, Guntur, a house site at
Cobalpeta in Guntur Municipality and 1 acre of agricultural land at
Panideram, Sattenapalli in Guntur District". My father constructed a
house with his own earnings i.e., from the salary and with the loan
availed from Karnataka Housing Board. I have produced the original
loan sanctioned letter from KHB, the original mortgage deed, the loan
statement, the original receipt for repaying the loan. The house was
completed in the year 1975 - - - - - - - - - - - - This contents of the
affidavit of the D.W.1 Mr.Bob Edward Maddela shows that -> his
father has purchased the property. No doubt, he has sworn that his
father has sold the property situated at Nagrampalam, Guntur. To
prove that aspect, no documents are produced. But the contents of
the sale deed dated 18/3/1986 marked as Ex.D.30 goes to show
40 O.S.15395/2006 & O.S. 25891/2008
that -> father of this defendant Mr.M.J.Edward has purchased the
property from the Deputy Secretary, Development Authority of
Bangalore for valuable consideration of Rs.6,000/-. In this
document, there is nothing to show that the contribution of fund is
made by his wife to purchase the property.
35. The contents of Ex.D.1 (which is earlier marked as
Ex.P.1(a) - loan sanction letter dated 10/1/1972 shows that -> One
Mr.M.J.Edward filed application for loan. The particulars
mentioned in the document goes to show that -> he has deposited
the title deeds and other documents such as alienation certificate,
encumbrance certificate etc. On perusal of Ex.D.2 (i.e., Ex.P.2(a))
dated 11/10/1976 shows that the loan advanced to
Mr.M.J.Edward is Rs.27,500/-. Sum of Rs.3,000/- is recovered and
the remaining amount is shown as balance. In this document it is
mentioned that :-> you are however permitted to repay the said sum
in monthly installments at Rs.207.26 Ps. per month. Accordingly,
communication letter is sent to Mr.M.J.Edward. ExD.4 is the loan
discharge certificate. In this, the date of death of Mr.Edward is
shown as 2/2/1989 and also mentioned that one Mr.F.K.Edward
W/o. Mr.M.J.Edward had paid the amount. Ex.D.3 is the Mortgage
deed executed by M.J.Edward. All these materials shows that ->
41 O.S.15395/2006 & O.S. 25891/2008
the father of the plaintiff has raised the loan for construction of the
house and it is discharged partly by him as disclosed in Ex.D.2
(i.e., Ex.P.2(a)) dated 11/10/1976. No doubt, in Ex.D.4 receipt, it is
mentioned that, the father of plaintiffs and defendants died on
2/2/1989 and his wife has made payment. It is pertinent to note
that loan is raised under Ex.D.1 dated 10/1/1972. Then as per
Ex.D.2 dated 11/10/1976 within four years sum of Rs.3,000/- is
recovered out of the loan amount of Rs.27,500/-. Then on
2/2/1989 the borrower Mr.M.J.Edward died i.e., after twelve years
from the date of Ex.D.2 in which loan raised is shown as
Rs.27,500/- and the payment made as Rs.3,000/-, as per Ex.D.1
loan sanction on 10/1/1972. Hence, within four years he repaid
Rs.3,000/- and there after twelve years, he died. In these interval of
twelve years there is a chance of repayment of loan at least to some
extent. If repayment of loan is not made upto twelve years, from the
date of repayment of Rs.3,000/- mentioned in Ex.D.2 dated
11/10/1976, then certainly there could have been suit for recovery
of the money during the interval of date of repayment of Rs.3,000/-
mentioned in Ex.D.2 i.e., 11/10/1976 and the date of death on
2/2/1989. But no such evidence of recovery proceedings by filing
suit against him is pleaded by the plaintiff of O.S.No.15395/2006
42 O.S.15395/2006 & O.S. 25891/2008
so as to prove that-> after the death of her father on 2/2/1989 her
mother had paid the loan from her earning. As the said payment
is made after the death of said Mr.M.J.Edward, whether it is out of
the savings of the earning of the Edward or out of the savings of the
earning of his wife is not made clear by the plaintiff who claims
that her mother has contributed for purchase and for construction.
Under the circumstances, it cannot be held that the wife of the
deceased has paid the said sum as there is equal chance of
repayment of balance on the savings of the earning of the deceased.
If really she i.e., mother of plaintiff, was having sound financial
position, then, there must be a material evidence regarding
possessing of money by her such as any bank accounts etc. To that
extent, there is no material placed by plaintiff on record before this
court. On the other hand, the evidence on record goes to show that
the said M.J.Edward was employee, during his life time and he has
purchased site on his own earning and thereafter raised the loan
for construction of the house. All these material evidence goes to
show that -> he has financial capacity to repay the loan. As no
banker will advance the loan to the person who is unable to repay
the loan. Under such circumstances, only on the ground that in
Ex.D.4 it is mentioned that wife of M.J.Edward has made payment.
43 O.S.15395/2006 & O.S. 25891/2008
It cannot be construed that -> it is repayed on her earning after the
death of her husband Mr.M.J.Edward.
36. Apart from this, the person who issued the Ex.D.4 is
not examined so as to prove that -> the particular sum is paid by
the wife of the deceased. But, so far as regard the date of death is
concerned, there is no dispute between the parties regarding the
death of father of the plaintiff and the defendant. Under the
circumstances, the contents of Ex.D.4 can be relied only to the
extent that -> Mr.M.J.Edward died on 2/2/1989. But the
remaining contents that, his wife paid sum towards the housing
loan cannot be relied on, unless established by the cogent evidence
of the author of that document. Hence, on all these grounds, this
Issue No.1 is to be held partly affirmative so far as regards the
purchase of the property by the father of the plaintiff on his earning
and construction of house by raising loan. Accordingly, answered
this Issue in partly affirmative stating that -> the father of the
plaintiff purchased the site and constructed the house on it by
raising loan.
37. ISSUE NO.2 OF O.S.No.15395/2006 :- This Issue
is pertaining to the plaintiff's entitlement to the extent of share in
44 O.S.15395/2006 & O.S. 25891/2008
the suit property. As the defence of the defendant is that -> the suit
property is disposed of by way of WILL by the father of plaintiff to
the defendant No.1 of O.S.15395/2006. Hence, this issue will be
answered after answering the Issue No.3 to 6 of
O.S.No.15395/2006 and the Issue No.1 to 5 of
O.S.No.25891/2008.
38. ISSUE NO.3 OF O.S.NO.15395/2006 :- This
Issue is on the defendant of O.S.No.15395/2006. In this Issue the
defendant has to prove that -> suit schedule property is the self
acquired property of their father. In the plaint of
O.S.No.15395/2006 the material plea raised by the plaintiff is that
-> the suit site is purchased by the father of the plaintiff and the
defendant on the savings of their mother. On the other hand, the
defence of the defendant is that -> the suit site is purchased on the
earning of the father and after purchase he has constructed the
building by raising the loan. If the plaintiff able to prove the suit
site is purchased and the house over it is constructed on the joint
earning of the father and the mother of the plaintiffs and defendant
No.1, then this Issue will have to be answered in the negative. If the
defendant proves that it is acquired by their father, then this Issue
45 O.S.15395/2006 & O.S. 25891/2008
will have to be answered in the affirmative. For the reasons stated
in detail to the Issue No.1 of O.S.No.15395/2006 referred above, it
is hold that the plaintiff has failed to prove that site is purchased
and the residential house is built on the joint earning of the father
and the mother of the plaintiff and it is held that the site is
purchased on the earning of the father of the plaintiffs and the
defendant No.1 and the building is constructed on it by him i.e.,
father, by raising the loan. Further, there is no evidence regarding
contribution of fund by the mother of the plaintiff and the
defendant No.1 either for the purchase of the site or for
construction of the house over it. Hence, it is proved that the suit
schedule house is the self acquired property of the father of the
defendant No.1. Accordingly, this Issue No.3 is held in affirmative.
39. ISSUE NO.4 IN O.S.15395/2006 :- This
Issue is on the defendant No.1. In this Issue, the defendant No.1
has to prove that under the WILL executed by their father, he
became absolute owner of the property. In the written statement at
para No.4 the defendant has pleaded that -> The statement in para
No.5 of the plaint that -> Mr.M.J.Edward passed away on
2/2/1989 is admitted as true and he left behind him the plaintiffs
46 O.S.15395/2006 & O.S. 25891/2008
and defendant and his wife as legal heirs is true. But the plaintiffs
and the second defendant do not succeed to his estate as during
his life time he bequeathed the property owned by him under a
registered WILL dated 25/4/1977.
40. In the additional affidavit filed by way of examination-
in-chief on dated 8/12/2011 the D.W.1 has sworn in para No.1
stating that -> I am the 1st defendant in O.S.No.15395/2006 and
the plaintiff in O.S.No.25891/2008 which is clubbed in the above
case (in O.S.No.15395/2006) at the request of the plaintiff. When
the case was posted for cross-examination of the plaintiff, I have
already filed the affidavit evidence in O.S.No.25891/2008 along
with documents which are marked as Ex.P.1 to Ex.P.26. I have filed
an additional affidavit and examined as 1st defendant in
O.S.No.15395/2006 subsequent to clubbing of above suits which
may be read as part and parcel of this affidavit. In para No.2 has
sworn that -> "I am" the absolute owner of the suit schedule
property under the WILL dated 25/4/1977 executed by my late
father Mr.M.J.Edward in my favour. In para No.5 has sworn that->
I have made all possible efforts to know attesting witness and the
advocate who identified the executant who drafted the WILL and
47 O.S.15395/2006 & O.S. 25891/2008
affixed the signature on WILL which is marked as Ex.P.23. On my
enquiry I came to know attesting witnesses and the advocate who
identified the executants are died. In para No.6 of the affidavit has
sworn that -> I have produced the original death certificate of late
Mr.D.Leo, the second attesting witness who died on 25/3/1993 and
the death certificate of advocate Late Mr.K.B.Swaminathan who died
on 1/9/1987. The death certificate of Mr.M.R.Choudhary the first
attesting witness who died on 22/10/2008 are already been
produced and marked before the Hon'ble Court as Ex.D.1 by
examining his son Mr.Prasad M.R.V. as P.W.2 (ought to be D.W.2 as
he is examined as witness of this defendant) who identified the
signature of his father as attesting witness to the WILL.
41. This is the gist of the material evidence of the defendant
of O.S.No.15395/2006 in his additional affidavit filed by way of
examination-in-chief as D.W.1 in connection with the execution of
the registered WILL and the attestation of the WILL by the witness
and the drafting of the WILL and their death subsequent to the
date of WILL. This witness is cross-examined by the plaintiff's
counsel. In the cross-examination on dated 12/12/2011 this
witness has deposed that -> It is true to suggest the father's name
(of the witness by name) Mr.M.R.Chowdhary, and D.Leo are not
48 O.S.15395/2006 & O.S. 25891/2008
mentioned. But residential address of both are shown. The
residential address of Mr.M.R.Chowdhary as per Ex.P.23(a) is
G.B.104, HAL, Bangalore. The said address refers to HAL quarters.
His further evidence is that -> "I have contacted son of Chowdhary
to get death certificate of Chowdhary. Chowdary's son is residing at
Gupta Layout, Ulsoor, Bangalore - -- - - - Lastly I have met the
Chowdhary before 1984. At that time Chowdhary was retired. In the
further cross-examination has deposed -> "I" do not know what is
the designation of D.Leo in HAL- - - - - - "I" met the family members of
D.Leo to collect Ex.D.3 (i.e., death certificate of D.Leo) they are
residing at Kundenahalli - - - - - -"I" have applied for death certificate
of D.Leo and produced in this case. The family members of Leo have
not supplied death certificate.- - - - -
42. The evidence of the D.W.1 referred above shows that he
has collected the death certificate of the attesting witnesses of the
WILL and the advocate who identified the executant of the WILL
one Mr.K.A.Swaminathan, Advocate and produced in the suit and
got marked as exhibit.
43. But in the written argument filed by the counsel for the
plaintiff in O.S.No.15395/2006 at para No.13 has submitted that -
49 O.S.15395/2006 & O.S. 25891/2008
> The evidence of Mr.M.R.V. Prasad which was led by way of
affidavit on 26/4/2011 became no value as on that day, no
evidence had been let in by Mr.Bob Edward Maddela (1st defendant
in O.S.No.15395/2006 and plaintiff in O.S.25891/2008) to prove
that both the attesting witnesses were dead or otherwise not
available. This submission is not sustainable in the light of the fact
that -> much earlier to filing of this written argument which is filed
on 10/9/2014 the defendant of O.S.No.153952/006 Mr.Bob
Edward Maddela has filed his additional affidavit by way of
examination-in-chief as D.W.1 on 8/12/2011 in which at para No.2
and para No.5, 6, has sworn regarding the death of the attesting
witnesses to the WILL and the production of their death certificate
and also deposed in cross-examination in connection with the
factum of the collection of their death certificate. Under these
circumstances, the above referred submission of the counsel for the
plaintiff in the written argument is not sustainable one as evidence
(of D.W.1) is required to be read as whole. Hence whatever the
evidence given by D.W.1 is to be read as whole though given on
different dates, as on 8/12/2011 the D.W.1 has specifically
deposed/sworn in affidavit regarding death of attesting witnesses.
This is required to be considered. But in the written argument filed
by plaintiff counsel in O.S.No.15395/2006 has not considered the
evidence of D.W.1 dated 8/12/2011.
44. In the order sheet dated 31/1/2012 of O.S.15395/2006
it is recorded that -> in view of the order of the Hon'ble High Court
of Karnataka passed in W.P.39812/2011, the earlier evidence of
50 O.S.15395/2006 & O.S. 25891/2008
D.W.2 cannot be considered. On the same day i.e., on 31/1/2012
the D.W.2 has filed the affidavit by way of examination-in-chief by
reiterating the contents of the affidavit filed by him on 26/9/2011.
The contents of the affidavit filed on 31/1/2012 are as follows :->
My father was employed in HAL and was residing at G.B.104, HAL
Quarters, Bangalore - 37, in the year 1977. Mr.M.J.Edward who is
father of plaintiffs and defendants was also an employee of HAL, a
family friend of my father. He along with his family was residing in
HAL quarters before shifting to their own house and I know the
plaintiffs and defendants and their father Mr.M.J.Edward. In para
No.3 has sworn that -> My father Mr.M.R.Choudary expired on
22/10/2008. During his life time after signing as an attesting
witness to the WILL of his friend Mr.M.J.Edward, my father has tolld
us about the execution and registration of the WILL and his signature
as an attesting witness to the WILL. I am producing the death
certificate of my father and the notarized copy of my ID proof before
this Hon'ble court. I do identify the signature of my father in the
registered WILL of Sri.M.J.Edward dated 25/4/1977. During those
period Mr.M.J.Edward was very hale and healthy as I have
observed while coming to our house to meet my father. This is the
51 O.S.15395/2006 & O.S. 25891/2008
contents of the affidavit filed by way of examination-in-chief by
D.W.2 on dated 31/1/2012.
45. The contents of the earlier affidavit filed on 26/9/2011
by this witness are almost similar to the contents of the affidavit
filed on 31/1/2012 by way of examination-in-chief. In the further
examination-in-chief on dated 31/1/2012 this witness has
produced two documents marked as Ex.D.1 and Ex.D.2. They are
the copies of death certificate of the father of this witness and the
copy of driving license of this witness. They are renumbered as
Ex.D.27 and Ex.D.28 respectively. This witness is cross-examined
by the plaintiff on 22/2/2012, in which suggestion is made to this
witness stating that -> there is no signature of the father of this
witness on Ex.D.1 and Ex.D.2. (The said Ex.D.1 and Ex.D.2 are
renumbered as Ex.D.27 and Ex.D.28). In my considered view, this
question is without base for the simple reason that -> Ex.D.27 is
filed to show that -> father of this witness is died. When such
being the case, the signature of the dead person on the said
document is beyond probability. This prima-facie shows the mode
of cross-examination without applying the mind to the factual
matrix of the case. However, be kept as it is. The next suggestion
52 O.S.15395/2006 & O.S. 25891/2008
made to this witness is that -> this witness is not the son of
Mr.M.R.Chowdhary and the signature found on Ex.P.23 (which is
subsequently renumbered as Ex.D.23) i.e., WILL is not the signature
of the father of this witness. The said suggestions are denied by
this witness and also denied that Ex.D.27 is created. Further
deposed that he do not know where the said WILL is prepared and
also denied the suggestion that -> his father has not communicated
to him regarding putting of his signature on the WILL. On perusal
of the evidence deposed in the cross-examination, it is seen that ->
this witness in a point blank has denied the suggestion that
signature found on the Ex.P.23, (corresponding new Exhibit
No.D.23) is not of his father. When such being the case, suggestion
to a witness and denial of the same by the witness is of no positive
evidence in favour of the party who made suggestion in view of the
principles laid down in AIR 1981 karnataka page 40. The D.W.3 is
examined as a witness knowing about the deceased M.J.Edward.
He sworn in his affidavit stating that -> he know Smt.F.K.Edwards
since 1961 the mother of plaintiffs and defendant. She was teacher
in his institution and her husband Mr.M.J.Edward was an
employee in HAL, Bangalore. In the course of time they became
family friends of this witness. Mr.M.J.Edward was very hale and
53 O.S.15395/2006 & O.S. 25891/2008
healthy had full faculty of mind even before going to the prayer
near Ooty in the year 1989, where he passed away. In the cross-
examination, he has denied the suggestion that he is not
acquainted with the deceased and also with his wife, they never
met and the deceased was not sound state of health in 1985 etc.
The D.W.4 - Mr.Maddela Vinolia has sworn in her affidavit stating
that -> she is the sister of late M.J.Edward. Even after her
marriage, her brother M.J.Edward used to visit her house during
vacations and was discussing about the WILL executed by him and
stated that he had bequeathed his house property in Bangalore to
his only son Mr.Bob Edward Maddela who was then employed in
Dubai. Further sworn that -> her brother Mr.M.J.Edward shown
the registered WILL to her and she can identify his signature and
also sowrn that -> the said Mr.M.J.Edward used to visit her family
often in Andhra Pradesh till his death in 1989. He used to discuss
family matters, education and settlement of children etc., He
always found very active and keen to engage himself in prayer
meetings and social work after his retirement. He was hale and
healthy and has full faculty of mind till he passed away in the year
1989. In the further examination-in-chief she has identified the
hand writing found in Ex.P.5 - subsequently renumbered as Ex.D.5
54 O.S.15395/2006 & O.S. 25891/2008
and also identified the signature found on the Ex.P.23 (corresponding
new Ex.D.23) marked as Ex.P.23(a) (corresponding new Ex.D.23(a)).
Ex.D.23(a) is the signature of her brother i.e., Mr.M.J.Edward. In
the cross-examination dated 28/7/2012 has deposed that -> There
is no document to show that-> after her marriage, her brother used to
visit her house and also there is no document to show that he used
to discuss with her in connection with the execution of the WILL and
denied the suggestion that he was not in the fit state of mind at the
time of his death. These are the evidence placed by the defendant
regarding the health condition of the deceased Mr.M.J.Edward and
execution of the WILL by him and the identification of the signature
of the witnesses to the said WILL.
46. On perusal of evidence of D.W.3 Mr.T.S.Lucas, who is
the head master and the evidence of D.W.4 -Mrs.Maddela Vinolia,
sister of Mr.M.J.Edward, it is seen that -> deceased M.J.Edward
was in sound state of mind and was healthy till his death. On
perusal of the evidence of D.W.2, Mr.M.R.V. Prasad, it is seen that -
> he has also deposed regarding his acquaintance with the
deceased M.J.Edward, the family friend of his father. He also
deposed regarding the sound state of mind of Mr.M.J.Edward.
Further this witness has identified signature of his father
55 O.S.15395/2006 & O.S. 25891/2008
Mr.M.R.Choudhary on the WILL marked as Ex.P.23, subsequently
marked as Ex.D.23, in which the signature of deceased
M.J.Edward is found. No doubt, these D.W.3 and D.W.4 are
elaboratively cross-examined and suggestions are made to them
that they have deposed falsely, as already observed in the above
paragraph, mere suggestion and denial of the same by the witness
is no positive evidence at all in view of the principles laid down in
the citation given in AIR 1981 Karnataka at page 40.
47. In the light of these material evidence placed by the
defendant through D.W.2, D.W.3 and D.W.4 it is clear that ->
Mr.M.J.Edward was in sound state of mind till his death. Further
the evidence of D.W.4 goes to show that -> he (i.e., deceased
M.J.Edward) used to discuss with her regarding his intention to
execute the WILL. The evidence of D.W.2 shows that -> he
identified the signature of witness No.1 on the said WILL as
signature of his father. This D.W.2 is the son of witness No.1 of the
WILL in question. The son is a competent person to identify the
signature of his father. When such being the case, the plaintiff has
established that the signature found on the Ex.P.23 corresponding new
No. Ex.D.23 is that of the witness No.1 Mr.Choudhary. Hence on
56 O.S.15395/2006 & O.S. 25891/2008
the evidence of D.W.2 the defendant has proved the signature of
one of the attesting witnesses to the WILL. Regarding proof of WILL,
atleast one of the attesting witness is required to be examined to
prove the execution of the WILL. In the case on hand, both the
attesting witnesses and also the advocate who identified the
executant are died. Therefore, death certificates are produced and
marked as Ex.D.27 - Mr.M.R.Choudhary, Ex.D.32 - Mr.D.Leo,
Ex.D.33- Mr.K.B.Swaminathan. When such being the case, the
evidence of D.W.2 regarding the identification of the signature of
his father on Ex.P.23 (Ex.D.23) who is the witness No.1 of Ex.P.23
(corresponding Ex.D.23) is to be accepted, as there is no rebuttal
evidence placed by the plaintiff. Hence, on all these grounds the
defendant has proved that his father has executed the WILL in his
favour as per Ex.P.23 which is subsequently renumbered as
Ex.D.23. No such document, marked as Ex.D.24 is in the file,
though it is mentioned in the evidence.
48. In AIR 1964 SC page 529 in a case Shashikumar
Banerjee, below head note at page No.529 it is mentioned that ->
Mode of proving the WILL does not ordinarily differ from that of
proving any other document except as to the special requirement of
57 O.S.15395/2006 & O.S. 25891/2008
attestation prescribed in the case of a WILL by S.63 of Succession
Act. The onus of proving the non existence of suspicious
circumstances surrounding the execution of the WILL, proof of
testamentary capacity and the signature of the testator as required
by law is sufficient to discharge the onus.
49. In the suit on hand, the defendant has produced the
death certificates of said attesting witnesses and they are marked
as Ex.D.27, Ex.D.32 and Ex.D.33. In the citation given in AIR 1927
Madras 662 in a case Venkataramayya V/s. Kamisetti Gattayya
and others, in the head note 'B' it is stated as follows :->
b) Transfer of Property Act, S.59 -
Attestors dead - Hand writing proved -
Attestor should be presumed to have seen
execution - Evidence Act, S.69.
50. At page 663 it is mentioned that -> Where the hand
writing of the attestors, who are dead has been proved, the
presumption, in the absence of rebutting evidence, is that they
actually witnessed the execution of the dead. In the suit on hand,
the D.W.2 who is the son of first attesting witness has deposed by
identifying the signature of his father on the WILL marked as
Ex.P.23, which is subsequently renumbered as Ex.D.23. Hence
58 O.S.15395/2006 & O.S. 25891/2008
presumption is that -> he has witnessed the execution of deed.
Hence the execution of the WILL is to be held as to be proved on
the evidence of D.W.2, who is the son of attesting witness No.1,
who identified the signature of his father on the WILL. When the
execution of the WILL is proved, then, no need to go into the
question of probate so as to prove the WILL.
51. In the plaint of O.S.No.25891/2008-> In the para No.2
the plaintiff has pleaded that -> The suit schedule property was
originally allotted by BDA in favour of Sri.M.J.Edward, father of the
plaintiff. The BDA executed and registered an absolute sale deed in
favour of Sri.M.J.Edward on 18/3/1986 after having paid the full
value to the property. The property was allotted to Mr.M.J.Edward
in the year 1971 and was put in possession by BDA in 1972.
Mr.M.J.Edward mortgaged the property in favour of Mysore
Housing Board vide registered deed dated 23/3/1973 for
Rs.25,000/- Subsequently marked as Ex.D.29 for the construction
of a house. Subsequently on 23/9/1974 an additional sum of
Rs.2,500/- was availed by Mr.M.J.Edward by executing and
registering a Mortgage deed subsequently marked as Ex.D.3.
59 O.S.15395/2006 & O.S. 25891/2008
52. The plaintiff of O.S.No.25891/2008 in his affidavit filed
by way of examination-in-chief as P.W.1 on dated 7/12/2009
which is subsequently renumbered as D.W.1 (by invoking the Rule
55(2) of the Civil Rules of Practice) has reiterated this plea raised in
para No.2 of the plaint. In the affidavit at para No.2. In the further
examination-in-chief has produced in all 26 documents which were
marked as Ex.P.1 to Ex.P.26 and then renumbered as Ex.P.1(a) to
Ex.P.26(a). Thereafter, by invoking Rule 55(2) on 2/7/2015
renumbered as Ex.D.1 to Ex.D.26.
53. On perusal of the above material, it is seen that ->
Bangalore Development Authority has allotted the said site to the
father of the plaintiff of O.S.No.25891/2008 in the year 1971 and
he was put in actual possession in 1972. The grant in favour of the
father of defendant No.1 of O.S.15395/2006 in the year 1971 by
the BDA is not disputed by the plaintiff of O.S.15395/2006. But
their case is that -> it is purchased on the joint money of their father
and mother, which is not established before the court for the reasons
stated in the above paragraphs. On perusal of Ex.D.1 it is seen that ->
on 10/1/1972 the father of the plaintiff of O.S.No.25891/2008 applied
for loan for construction of the house. On perusal of Ex.D.2 on dated
60 O.S.15395/2006 & O.S. 25891/2008
11/10/1976 it is seen that -> he has repaid the portion of the loan
amount of Rs.3,000/- out of the total loan amount of Rs.27,500/-.
Thereafter, on 25/4/1977 has executed the registered WILL as per
Ex.D.23 in favour of the defendant of O.S.No.15395/2006 who is
the plaintiff of O.S.No.25891/2008. Thereafter, the vendor -
Deputy Secretary of Bangalore Development Authority has executed
absolute sale deed in favour of the father of the plaintiff as per
Ex.D.30 on 18/3/1986. All these events goes to show that -> much
earlier to execution of the sale deed dated 18/3/1986 marked as
Ex.D.30, the City Improvement Trust Board (CITB) has allotted the
site in 1971 and has given possession in 1972. Basing on the same,
the father of the plaintiff has raised the loan for construction of
house by mortgaging the site under Ex.D.3 and Ex.D.29 Mortgage
deeds. This act of acceptance of the Mortgage deed by the financial
institution Karnataka Housing Board, shows that -> it has accepted
that the person who is mortgaging the property is having right to do
so. When such being the case, as on the date of mortgage of
property by the holder of the property i.e., Mr.M.J.Edward, it is to
be held that -> he is having interest over the said property. The
said interest is transferred to the name of his son under the WILL
dated 25/4/1977 marked as Ex.D.23. This exercise of right over
61 O.S.15395/2006 & O.S. 25891/2008
the property is subsequently acknowledged by the act of
registration of sale deed under Ex.D.30 on dated 18/3/1986 by the
authority which has allotted the site to the said M.J.Edward in
1971. Hence, it can be safely held that -> though sale deed is
executed under Ex.D.30 on 18/3/1986, the holder of the property
Mr.M.J.Edward was exercising the right over the property by
mortgaging the same to the financial institution earlier to the sale
deed. In that exercise of right, subsequently he has executed the
WILL on 25/4/1977 in favour of his son. Hence, act of mortgaging
the property to the financial institution and the subsequent act of
execution of the WILL by him on 23/4/1977 earlier to the
registration of the sale deed dated 18/3/1986 etc., shows that
M.J.Edward was exercising right of ownership over the property
and it was acknowledged by the financial institution by accepting
the mortgage under Ex.D.3 on dated 23/3/1973 and Ex.D.29 on
dated 23/9/1974 respectively. Under these circumstances, though
sale deed is executed in 1986 and the WILL is executed in 1977
(earlier to the sale deed) by the holder of the property by exercising
right over the property. The plaintiff of O.S.No.15395/2006 or the
defendant of O.S.No.25891/2008 cannot take the contrary plea
62 O.S.15395/2006 & O.S. 25891/2008
that -> at the time of executing the WILL, his father was having no
right over the property. Because, it is hit by principles of Estoppel
given in Section 115 of the Evidence Act. The said Section 115 of
Evidence Act states that ->
When one person has, by his
declaration, act or omission, intentionally
caused or permitted another person to
believe a thing to be true and to act upon
such belief, neither he nor his representative
shall be allowed, in any suit or proceeding
between himself and such person or his
representatives, to deny the truth of that
thing.
54. Further in the Sarkar Evidence Act, 14th Edition, 1993,
reprint 1993 at page No.1605 stated regarding ESTOPPEL BY
DEED stating that ->
It rests on the principle that when a
person has entered into a solemn
engagement by deed under seal with another
party, he or the persons claiming through or
under him, shall not be allowed to set up the
contrary of his assertion in the deed
63 O.S.15395/2006 & O.S. 25891/2008
55. On perusal of this principle it is seen that -> if a person
allowed the other person who act or believe certain things to be
true, then, neither he nor his representative can take the contrary
plea. When such being the case, In the suit on hand, the father by
executing the WILL in favour of the son has acted in the manner
that his son should believe that -> his father has disposed of the
suit property in favour of him through WILL. Under such
circumstances, after the death of the father, his representative i.e.,
the plaintiff of O.S.No.15395/2006 who is the daughter of the
deceased, the other sisters of the said plaintiff, cannot take the
contrary plea against the contents of the WILL marked as Ex.P.23,
subsequently marked as Ex.D.23. On all these grounds I hold that
-> the defendant No.1 has proved that -> his father has executed
the WILL in his favour as per Ex.D.23. Accordingly, I answered
Issue No.4 O.S.15395/2006 in the affirmative.
56. ISSUE NO.5 OF 15395/2006 :- This issue is on the
defendant. In this Issue, defendant has to prove that -> the
husband of the second defendant occupied the schedule premises
as a tenant on monthly rent. In the written statement filed by the
defendant in O.S.No.15395/2006 in para No.5 has pleaded that ->
64 O.S.15395/2006 & O.S. 25891/2008
In the year 1998 Mr..N.Chelladura, the husband of second plaintiff
occupied the premises as tenant by paying rent of Rs.5,000/-
(Rupees five thousand) per month in the year 2000, Mr.N.Chelladurai
vacated the premises and in the month of October 2000, the first
plaintiff sought for permission of this defendant to occupy the
premises, as the property belonging into Mr.Alfrose Pasha, the
husband of the first plaintiff, situated at Cambridge Layout was
getting demolished for re-construction. In the affidavit filed by way
of examination-in-chief dated 29/6/2011, this D.W.1 in para No.8
has sworn that -> I requested my brother-in-law by name
Chelladurai to occupy the premises in the year 1997 and he had
been paying Rs.5,000/- per month to me. I had requested him to
make this payments to my sisters as I was (this witness) working
abroad. This sum of Rs.5,000/- as rent arrived at as he was paying
a rent of Rs.5,000/- for his other rented premise. He vacated the
premises when he constructed his own premises at HSR Layout in
the year 2000. In para No.9 of the affidavit has sworn that -> In
the year 2000 my sister Anjum Pasha and her husband Sri Afroze
Pasha requested me to let out the premises to them as their own
house was under demolition and re-construction. They agreed to pay
the same rent as Sri.Chelladurai was paying which was agreed to
65 O.S.15395/2006 & O.S. 25891/2008
be raised to Rs.15,000/- per month as evidenced by e-mail dated
26/3/2005. In the further examination-in-chief, he produced in all
26 documents marked as Ex.P.1 to Ex.P.26. They are renumbered
as Ex.P.1(a) to Ex.P.26(a) and subsequently marked as Ex.D.1 to
Ex.D.26 by invoking Rule 85(1)(b) of Civil Rules of Practice. Among
them, the Ex.D.9 is the letter dated 8/5/1985. But in the hand
writing the date mentioned is 11/5/1985 and it is signed by
Mr.Bob. These particulars goes to show that -> Ex.P.9 (Ex.D.9) is
the letter shown in the list of document at Sl.No.7 issued by the
plaintiff dated 11/5/1985. Except these letters, the other
documents produced does not speaks regarding the contractual
obligation between the Chelladurai and this defendant and also
between this defendant and his sister who is the plaintiff in
O.S.15395/2006. Under the circumstances, the plea raised in his
written statement -> at para No.5 stating that -> in the year
1998 Mr.N.Chelladurai, the husband of the second plaintiff
occupied the premises as a tenant paying rent of Rs.5,000/- per
month and subsequently the plaintiff occupied the premises and
agreed to pay monthly rent of Rs.15,000/- (Rupees fifteen
thousand only) is not supported by any of the documents produced
by this defendant. Under the circumstances, the Issue No.5 casted
66 O.S.15395/2006 & O.S. 25891/2008
on the defendant stating that -> whether the defendant No.1 proves
that husband of the second defendant occupied the schedule
premises as tenant on monthly rent of Rs.5,000/- (Rupees five
thousand) per month is to be hold as not proved by the defendant.
Accordingly, answered this Issue in the negative.
57. ISSUE NO.6 IN O.S.15395/2006 :- In this Issue,
it is to be determined whether the first defendant proved that ->
first plaintiff cannot claim share in the view of the change of her
religion. In the written statement at para No.6, defendant No.1 has
pleaded that -> - - - - The first plaintiff changed her religion
disentitled her from claiming any successions right. Otherwise even
the plaintiffs does not have any right over the suit schedule property
by virtue of the WILL dated 25/4/1977. The averments of plaint
Para No.3 is that -> The plaintiffs state that the defendants are
their brother and sister, all being the natural children of late
M.J.Edward and Florence Kamala Edward. The plaintiffs submit
that though born a Christian the first plaintiff is now practicing
Muslim and the second and third plaintiffs continue to be and are
practicing Christians. This averments of plaint para No.3 of
O.S.No.15395/2006 goes to show that -> the plaintiff No.1 has
67 O.S.15395/2006 & O.S. 25891/2008
pleaded that she changed her religion from Christianity to Muslim
and other plaintiffs continued in their original religion i.e.,
Christianity. In this Issue, defendant has to prove that -> the
plaintiff No.1 cannot claim share in view of change of her religion.
In the Ganguly's Commentary on Indian Succession Act, 1925,
Orient Publishing Company, 2nd Edition, Reprint 2003 by S.C.
Mitra at page 78 in the last paragraph it is stated that->
When once a person has changed his
religion and changed his personal law, that
law will govern the rights of succession, of
his children. - - - - - - - - -
58. This observation goes to show that -> when once person
changed his religion and changed his personal law, said law would
govern the right of succession. Of course, in the said citation case,
question was regarding the inheritance of the children of person
who changed their religion. In the suit on hand, the case of the
plaintiff of O.S.No.15395/2006 is that -> She born as a Christian,
subsequently changed her religion as Muslim after marrying the
person of Muslim community. The defence of defendant in his
written statement at para No.6 is that -> Since first plaintiff has
changed her religion disentitled her from claiming any successions
68 O.S.15395/2006 & O.S. 25891/2008
right. This defence raised by the defendant in his written statement
is supported by the observation made in the above said book of
Indian Succession Act, 1975, 2nd Edition by S.C. Mitra recital of
page 78. Hence, on all these grounds, it is to be held that ->
defendant proved that first plaintiff cannot claim share in view of
change of her religion. But, it is pertinent to note that this suit for
partition is filed not only by the first plaintiff but also by the other
plaintiffs. Whether the other plaintiffs are entitled for share or not
is to be adjudicated. In this regard, the discussion will be made
while answering Issue No.2 and 7 of O.S.No.15395/2006. But, for
the reasons stated above, this defendant No.1 has proved that ->
this plaintiff No.1 cannot claim share in view of change of her
religion. Accordingly, I answered Issue No.6 in the affirmative.
59. ISSUE NO.7 OF O.S.NO.15395/2006 :- In this
Issue, it is to be determined whether the plaintiffs are entitled for
relief sought for. This issue is to be adjudicated basing on the
findings given to the other issues connected to this suit and also
the issues involved in the O.S.No.25891/2008. As the finding on
this Issue will lead to final conclusion of proceedings of both the
69 O.S.15395/2006 & O.S. 25891/2008
suits, hence, this Issue will be answered after answering other
issues framed in O.S.No.25891/2008.
60. ISSUE NO.1 OF 25891/2008 :- This Issue is on the
plaintiff of O.S.No.25891/2008. In this Issue, plaintiff has to prove
that -> there is a landlord and tenant relationship between himself
and the defendants. In the written statement filed by this plaintiff
in O.S.15395/2006 at para No.5 in the middle has pleaded that -> -
----- - - - - In the year 1998 one Mr.N.Chelladurai, the husband of the
second plaintiff occupied the premises as a tenant, Later on this
plaintiff entered the premises as a tenant agreeing to pay the
monthly rent of Rs.15,000/- from 1st March to June 2005. But, for
the reasons stated in detail to Issue No.5 of O.S.15395/2006,
raised on the question of tenancy between the defendant No.1 and
the husband of the 2nd defendant of O.S.No.15395/2006, this court
held that -> the defendant of said suit bearing O.S.No.15395/2006
who is the plaintiff of this O.S.25891/2008 has failed to prove the
said issue. When such being the case, this Issue raised in
O.S.25891/2008 stating that -> whether the plaintiff proves that
there is a landlord and tenant relationship between himself and the
70 O.S.15395/2006 & O.S. 25891/2008
defendant is to be answered in the negative. Accordingly, answered
this Issue No.1 of O.S.No.25891/2008 in the negative.
61. ISSUE NO.2 IN O.S.No.25891/2008 :-> In this
Issue it is to be determined whether the suit in the present form for
mere possession is maintainable? The averments made in the
plaint of O.S.No.25891/2008 goes to show that -> plaintiff of
O.S.25891/2008 has come up with a specific plea that the property
in question was originally belonging to his father who purchased
the site on his earning and thereafter by raising the loan has
constructed the house and he repaid the loan and he bequeathed
the said property in his favour through WILL dated 25/4/1977
marked as Ex.P.23, subsequently renumbered as Ex.D.23. The
plaintiff has come up with the specific plea of acquisition of title to
the property through the WILL, dated 25/4/1977 along with the
plea that -> the executant of the WILL i.e., his father died on 2/2/1989
and filed suit in O.S.No.25891/2008 on 19/6/2008. This suit is
maintainable in view of the fact that -> assertion of right over the property
basing on the WILL is much prior to the date of institution of the suit
on the plea that > executant of the WILL died prior to the
institution of the suit, as WILL came into force after the death of
71 O.S.15395/2006 & O.S. 25891/2008
the executant of the WILL. Hence, as on the date of institution of
this suit in O.S.No.25891/2008, the executant of the WILL already
expired on 2/2/1989. Hence, the holder of the WILL get right to
enforce the WILL. Hence, suit for possession is maintainable.
62. ISSUE NO.3 OF O.S.25891/2008 :- In this Issue,
it is to be determined whether the plaintiff proves that as a landlord
he has terminated the tenancy of the defendant. In the plaint, of
O.S.25891/2008 the plaintiff has pleaded that -> the defendant
who is the plaintiff No.1 of O.S.No.15395/2006 who is his sister is
a tenant in the suit premises and he has issued the notice
terminating the tenancy. But for the reasons stated to Issue No.5 of
O.S.No.15395/2006, this plaintiff, who is the defendant in the said
suit has failed to prove the relationship between him and the
plaintiff of said suit (who is the defendant of this suit) as tenant
and landlord. Under such circumstances, though he has sent the
letter to the defendant terminating tenancy, it cannot be termed as
termination of tenancy as basically he has not established the
relationship between him and the defendant of this
O.S.No.25891/2008 who is his sister is that of tenant and landlord.
72 O.S.15395/2006 & O.S. 25891/2008
As the eviction notice is issued, it is with a view to get vacant
possession. Hence, the said notice is in the footing of issuance of
notice seeking for possession by claiming title basing on WILL
executed by his father. Under the circumstances, it is hold that the
plaintiff has failed to prove that he has terminated tenancy, but
issued notice claiming possession. Accordingly answered stating
that issued notice claiming possession.
63. ISSUE NO.4 OF O.S.25891/2008 :- This Issue is
on the plaintiff of O.S.25891/2008 who is the defendant of
O.S.No.15395/2006. In this Issue, the plaintiff of
O.S.No.25891/2008 has to prove that, he is entitled for damage. In
the plaint of O.S.No.25891/2008 in para No.12, has pleaded that -
> defendants are the tenant of the suit schedule property and they
have agreed to pay rent of Rs.15,000/- (Rupees fifteen thousand)
per month to the plaintiff. The defendants are squatting on the
property. Inspite of, fact that, they have rebuilt their own building
in Cambridge road, Bangalore and rented it out for a sum of
Rs.2,00,000/- (Rupees two lakhs) per month. On the other hand,
the plaintiff is living in the rented premises paying monthly rent at
Rs.19,000/- (Rupees nineteen thousand). On this plea, prays to
direct the defendant to pay the plaintiff a sum of Rs.15,000/-
(Rupees fifteen thousand) per month towards the damage for use
73 O.S.15395/2006 & O.S. 25891/2008
and occupation of the premises from the date of suit till the delivery
of possession. In the affidavit filed by way of examination-in-chief
as P.W.1 which is subsequently renumbered as D.W.1 has sworn to
that effect in para No.12 and also prayed in para No.12(b) of the
prayer for Rs.15,000/- (Rupees fifteen thousand) per month as
damage. Whether the defendant of O.S.No.25891/2008 is liable to
pay the damage is depending upon the factum that whether the
said defendant is in the said premises as a tenant. For the reasons
stated to Issue No.1 of O.S.25891/2008 it is held that -> plaintiff of
O.S.No.25891/2008 has failed to prove the relationship of landlord
and the tenant between himself and the defendant. For the reasons
stated to Issue No.3, this Court hold that -> though plaintiff has
issued the notice terminating tenancy, in view of his failure to
prove the relationship between plaintiff and defendant as landlord
and tenant, the contents of the said notice cannot be termed as the
termination of the tenancy. But to be termed as issued notice
claiming possession. Under the circumstances, question of
plaintiff's entitlement for damage does not arises. Hence, it is to be
held that plaintiff has failed to prove his entitlement for damage.
Accordingly, answered Issue No.4 of O.S.25891/2008 in the
negative.
74 O.S.15395/2006 & O.S. 25891/2008
64. ISSUE NO.2 AND ISSUE NO.7 OF O.S.15395/2006
AND ISSUE NO.5 OF O.S.25891/2008 :- In Issue No.2 of
O.S.15395/2006 it is to be determined whether the plaintiffs prove
that they have got 1/5th share in the suit schedule property. In
Issue No.7 of O.S.15395/2006 it is to be determined whether the
plaintiffs are entitled for the relief sought for. In Issue No.5 of
O.S.25891/2008 it is to be determined whether the plaintiff of the
said suit who is defendant of O.S.15395/2006 is entitled for the
relief sought for. In the plaint of O.S.No.15395/2006 the plaintiff
has sought for judgment and decree ordering the partition by metes
and bounds and deliver to the plaintiffs each of 1/5th share in the
plaint schedule property and for court costs, such other reliefs
deems fit to grant under the circumstances of the suit. In
O.S.No.25891/2008 the plaintiff of said suit who is defendant of
O.S.No.15395/2006 has sought for relief of direction to the
defendant to quit, vacate and deliver the vacant possession of the
premises to the plaintiff and to direct the defendant to pay the
plaintiff a sum of Rs.15,000/- (Rupees fifteen thousand) per month
towards the damage for use and occupation of the premises from
the date of suit till the date of delivery of possession and for such
other reliefs deems fit to grant under the circumstances of the suit.
75 O.S.15395/2006 & O.S. 25891/2008
Whether the plaintiff of O.S.No.15395/2006 is entitled for the relief
claimed in the plaint of O.S.No.15395/2006 is to be assessed on
the findings given to the Issue No.1 and 2 casted on him in the said
O.S.No.15395/2006. For the reasons stated to Issue No.1 of
O.S.15395/2006, this court hold that -> plaintiff has failed to prove
that suit site is purchased on the joint amount of the father and
mother of the plaintiff and the construction of the house is made
out of P.F. amount of the mother of the plaintiff. On the other
hand, it is held that the father of the plaintiff has purchased the
site and has constructed the house by raising the loan.
65. For the reasons stated to Issue No.4 of
O.S.No.15395/2006 it is held that -> the defendant No.1 of
O.S.No.15395/2006 has proved that -> his father has executed the
WILL on dated 25/4/1977 as per Ex.D.23 by adducing the
evidence of the son of the attesting witness as D.W.2. Further, for
the reasons stated to Issue No.6 of O.S.No.15395/2006 it is held
that -> defendant No.1 proves that first plaintiff cannot claim share
in view of the change of her religion. The said Issue is answered in
the affirmative . While answering the said Issue, the right of the
other plaintiffs regarding their entitlement to get the share in the
76 O.S.15395/2006 & O.S. 25891/2008
property is not adjudicated. Hence, it is required to be considered,
while discussing other issues. In this regard, the discussion will be
made while answering the Issue No.2 and 7 of O.S.No.15395/2006.
66. For the reasons stated to Issue No.4 of
O.S.15395/2006, this court hold that -> defendant No.1 proves
that -> under the WILL executed by their father, he became the
absolute owner of the property. The said WILL is marked as
Ex.D.23. The contents of the Ex.D.4 shows that -> father of the
plaintiff and defendant of O.S.No.15395/2006 died on 2/2/1989.
Even in the plaint of O.S.No.15395/2006 at para No.5 and also in
the written statement of O.S.No.15395/2006 at para No.4 both
parties have pleaded that -> their father M.J.Edward died on
2/2/1989. The effect of admission in the pleading is a effect of
waiver of proof. Hence, it is proved that -> on 2/2/1989 the father
of the plaintiff and defendant of O.S.No.15395/2006 died. The
enforceability of the WILL came into effect only after the death of
the executant of the WILL. On the other hand the enforceability of
the power of attorney seizes on the death of the executant of the
77 O.S.15395/2006 & O.S. 25891/2008
power of attorney. These are the characteristic of the document of
WILL as well as the Power of Attorney regarding their enforceability.
67. In the case on hand, on account of death of M.J.Edward
on 2/2/1989 the WILL executed by him under Ex.D.23 came into
force from 2/2/1989, which is the date of death. In pursuance of
the said WILL, the defendant No.1 of O.S.15395/2006 became the
owner. When the defendant No.1 of O.S.15395/2006 became the
owner soon after the death of his father on 2/2/1989, then the suit
property shown in O.S.No.15395/2006 looses the characteristic of
the property of the family of the plaintiffs and defendants as on the
date of institution of this suit. In O.S.No.15395/2006 filed on
6/3/2006. On account of enforceability of the WILL marked
Ex.D.23, soon after the death of executant on 2/2/1989. Hence, as
on the date of institution of this suit on 6/3/2006, the suit
schedule property looses the characteristic of the property of the
plaintiffs and the defendant No.1 of O.S.No.15395/2006. When the
property looses the characteristic of parental property of plaintiff
and defendant No.1 of O.S.15395/2006, as on the date of
institution of said suit in O.S.No.15395/2006 on 6/3/2006, it is to
be held that the other plaintiffs are also not entitled for share.
78 O.S.15395/2006 & O.S. 25891/2008
68. As the defendant No.1 of O.S.No.15395/2006 has
proved for the reasons stated to Issue No.6 that -> on account of
change of religion the plaintiff No.1 of O.S.No.15395/2006 is not
entitled for share. In addition to that -> this plaintiff No.1 is also
not entitled for share for the reasons that -> as on the date of
institution of the suit, the suit property of O.S.No.15395/2006
looses the characteristics of parental property of the plaintiff as the
father who is the owner of the property has executed WILL in
favour of his son who is the defendant No.1 of O.S.No.15395/2006
and the executant of the WILL i.e., father, died on 2/2/1989, much
earlier to filing of O.S.No.15395/2006 which is filed on 6/3/2006.
Though WILL is proved on the evidence of D.W.2 who is the son of
one of the attesting witness No.1. In addition to that, this WILL is
dated 25/4/1977 and it is tendered in evidence on 11/12/2009.
Hence, as on the date of tendering in evidence on
11/12/2009, it is a document of more than 30 years old.
Hence its execution is proved by operation of the law laid
down under Section 90 of Evidence Act regarding presumption
as to documents of thirty years old. Hence, Issue No.2 of O.S.
No. 15395/2006 is to be answered in the negative. So also the
Issue No.7 of O.S.15395/2006 is also to be answered in the
79 O.S.15395/2006 & O.S. 25891/2008
negative. For the reasons stated in the above paragraphs, the Issue
No.5 of O.S.No.25891/2008 is to be answered in partly affirmative
to the extent that -> plaintiff is entitled for relief of vacant
possession and not entitled for relief of damage and also not
entitled for any other relief. Though the relationship between the
plaintiff of O.S.No.25891/2008 and the defendant of said suit is
not the tenant and the landlord, but plaintiff of
O.S.No.25891/2008 is the owner of the property by virtue of WILL
executed by his father. Hence he is entitled for possession by
evicting the defendants. Accordingly, I answered Issue No.5 of
O.S.No.25891/2008 in the partly affirmative to the extent that
plaintiff of O.S.25891/2008 is entitled for vacant possession of the
suit premises.
69. ISSUE NO.8 of O.S.15395/2006 and ISSUE
NO.6 of O.S.25891/2008 :- For the reasons stated to Issue
No.1 to 7 of O.S.15395/2006 and for the reasons stated to Issue
No.1 to 5 of O.S.No.25891/2008, I proceed to pass the following :-
ORDER
In the result, suit of the plaintiff in O.S.No.15395/2006 filed for the relief of 80 O.S.15395/2006 & O.S. 25891/2008 partition and separate possession is hereby dismissed, devoid of merits.
Suit in O.S.No.25891/2008 filed by the plaintiff of said suit for the relief of vacant possession and for damage etc., is partly allowed to the extent that the plaintiff is entitled for vacant possession of the suit property.
Defendant of O.S.No.25891/2008 is hereby directed to vacate and hand over the vacant possession of the suit property to the plaintiff of O.S.No.25891/2008 within three months from the date of this judgment.
In the event of failure of defendant to hand over the vacant possession to the plaintiff of O.S.25891/2008, plaintiff of O.S.No.25891/2008 is at liberty to take possession in accordance with law by filing the necessary application for execution.
Under the circumstances, parties are directed to bear their respective cost of this proceedings.
Draw decree accordingly.
81 O.S.15395/2006 & O.S. 25891/2008 Original judgment shall be kept in O.S.No.15395/2006 and the copy of the judgment shall be kept in connected O.S.25891/2008.
(Dictated to the Judgment-Writer, transcript thereof, is corrected and then pronounced by me in the open court on this the 29th day of July, 2014) ( Mallareppa Veerappa Jadar ) XXVI Addl. City Civil and Sessions Judge Mayo Hall, Bangalore.
SCHEDULE PROPERTY FOR BOTH SUITS All that residential site and building bearing No.654, 11th Main, HAL II Stage, Bangalore - 560008, measuring East to West :- 45 feet and North to South :-
60 feet bounded on the East by :- Property bearing No.653, 11th Main, West by :- Property bearing No.655, 11th Main, North by :- 3rd Cross Road, South by :- Property bearing No.594, 12th Main, HAL II Stage.
82 O.S.15395/2006 & O.S. 25891/2008 ANNEXURE
1. List of witnesses examined for the plaintiff/s:
P.W.1 Mrs.Anjum Pasha
2. List of witnesses examined for defendant/s:
D.W.1 Mr.Bob Edwards Maddela D.W.2 M.R.V.Prasad D.W.3 Mr.T.S.Lucas D.W.4 Mrs. Maddela Vinolia
3. List of documents exhibited for the plaintiff/s: NIL
4. List of documents exhibited for defendant/s:
Ex.D.1 Letter of loan sanction dt.
10/1/1972 Ex.D.2 Loan account statement Ex.D.3 Original deed of mortgage dated 23/3/1973 Ex.D.4 Receipt (Discharge certificate) Ex.D.5 Draft WILL Ex.D.6 Letter dated 19/1/1988 Ex.D.7 Letter dated 9/4/1988 Ex.D.8 Letter dated 19/4/1988 Ex.D.9 Copy of letter dated 8/5/1985 Ex.D.10 E-mail correspondence dated 26/3/2005 Ex.D.11 E-mail correspondence dated 15/3/2005 Ex.D.12 E-mail correspondence dated 21/2/207 Ex.D.13 E-mail correspondence dated 21/2/2005 83 O.S.15395/2006 & O.S. 25891/2008 Ex.D.14 E-mail correspondence dated 10/3/2005 Ex.D.15 Letter dated 19/1/1988 Ex.D.16 Tax paid receipt dt. 28/5/2007 Ex.D.17 Tax paid receipt dt. 22/5/2006 Ex.D.18 Tax paid receipt dt. 26/8/2005 Ex.D.19 Tax paid receipt dt. 13/3/2009 Ex.D.20 Katha Certificate Ex.D.21 Katha Extract Ex.D.22 E-mail correspondence dated 10/3/2005 Ex.D.23 WILL dt. 25/4/1977 Ex.D.24 No such document marked as Ex.D.24 is in the file Ex.D.25 & Postal acknowledgments Ex.D.26 Ex.D.27 True copy of death certificate of Mr.M.R.Choudhary Ex.D.28 True copy of D.L. of Mr.M.R.V.Prasad Ex.D.29 Mortgage deed dt. 23/9/1974 Ex.D.30 Absolute sale deed dt.18/3/1986 Ex.D.31 Copy of notice dt. 28/2/2006 Ex.D.32 Death certificate of D.Leo Ex.D.33 Death certificate of K.B.Swaminathan Ex.D.34 Postal receipt Ex.D.35 Certificate of posting ( MALLAREPPA VEERAPPA JADAR) XXVI Addl. City Civil & Sessions Judge Mayo Hall, Bangalore.