Bangalore District Court
Siddhant Rishi Prabhakar vs Nil on 29 June, 2024
KABC0A0002512024
IN THE COURT OF LVII ADDL.CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH-58)
Present:
SRI. Rajesh Maruthi Kamate, B.Com., LL.B (Spl)
LVII Addl. City Civil & Sessions Judge,
Mayo Hall Unit, Bengaluru.
Dated this the 29th day of June, 2024.
Original Suit No.25076/2024
Plaintiff: Mr.Siddhant Rishi Prabhakar,
S/o.Prabhakar Raghavendra Rao,
Aged about 23 years,
Permanent Residence:-
176/E-13, 32nd 'D' Cross,
Off 11th Main,
4th Block, Jayanagar,
Bangalore-560 011.
(By Sri. Ameya Fadnis, Adv.)
-V/s-
Defendant: - NIL -
2
O.S.No.25076/2024
Date of Institution of the suit 24.01.2024
Nature of the suit Declaration
Date of the commencement of 26.03.2024
recording of the evidence
Date on which the Judgment 29.06.2024
was pronounced
Year/s Month/s Days
Total duration 00 05 05
*********
JUDGMENT
The present suit is filed by the plaintiff for the relief of declaration that the registered WILL dated 29.01.2015 having the conditional bequeath over the suit schedule property as null and void and to declare the plaintiff is an absolute owner of the suit schedule property.
2. Brief Case of the plaintiff, in a nutshell, is that:-
It is averred in the plaint that, the plaintiff is the absolute owner of immovable property consisting of land and building bearing No.176/E13, site No.176, BBMP PID 3 O.S.No.25076/2024 NO.58-78-13, 32nd 'D' cross, 11th Main, 4th Block, Jayanagar, Bengaluru measuring East to West 30 ft and North to South 50 ft, totally measuring 1500 sq.ft. constructed the building therein under the limits of BBMP. Whereas, the suit schedule property was earlier owned by his granmother Late.Smt.C.A.Ramadevi D/o Late.C.Anantha Rao and wife of Late.M.S.Raghavendra, who has been originally allocated the suit property by the city improvement Trust Board and later acquired absolute title and ownership of the same by way of a registered sale deed dated 18.3.1989 executed by BBMP in her favour. However, the plaintiff is the only grand son of Late.Smt.C.A.Ramadevi, who was married to Sri.M.S.Raghavendra Rao, who passed away on 16.12.1948 at Chikkaballapur, Karnataka and out of their wedlock, they had one son by name Sri.Prabhakar Raghavendra Rao @ Rishi Prabhakar, who was married to Smt. Arundhati Rishi Prabhakar, who is none other then the father and mother of the plaintiff. 4
O.S.No.25076/2024
3. It is further averred that, said Sri.Prabhakar Raghavendra Rao pre-deceased his mother Smt.C.A.Ramadevi on 16.02.2014 and subsequently, Smt..C.A.Ramadevi has also died on 19.04.2021 but during her life time, she has executed registered Will dated 29.01.2015 in the Sub-Registrar Office, Jayanagar, bequeathing her immovable and movable properties in the name of plaintiff giving him life interest over the schedule property along with right to collect the rents and other profits deriving out of the property only during his lifetime with absolute right and ownership and after his lifetime to his children if any shall succeed to the interest of the plaintiff over the suit schedule property. It is also averred that, on the death of Smt.C.A.Ramadevi, the plaintiff is single and unmarried and do not have any children but the said Will has created perpetual life interest to the plaintiff and subsequent transfer of this interest in favour of non- existing children of the plaintiff which is causing grave hardship to exercise his absolute rights of ownership over 5 O.S.No.25076/2024 the suit schedule property, as the said bequeath is in favour of non-existent person at the time of death of testator.
4. It is also averred that, the said Will has created perpetual situation and suit schedule property is not absolutely bequeathed to successive generations without vesting absolute rights in any person at any point of time and the same is leading to perpetual limited bequeaths upon the plaintiff and his children, which is against the Rule of Perpetuity as per Section 114 of Indian Succession Act. Hence, the plaintiff being the sole legal heir to the estate of Late.Smt.C.A.Ramadevi and upon her demise, he has become the absolute title holder of the suit schedule property and also his name has been entered in khatha and is paying the tax to the BBMP. Under such circumstances, the plaintiff is facing hardship in enjoying his absolute right over the suit schedule property due to the perpetual condition envisaged in the Will and in the absence of his children the bequeath would never amount to absolute bequeath in his favour, for which the conditional bequeath 6 O.S.No.25076/2024 under the WILL 29.01.2015 is to be declared as null and void and on these grounds has prayed to decree the suit.
5. Per contra, there are no defendant in this case made by the plaintiff and same is Nill.
6. In order to prove the case that the plaintiff has been examined as P.W.1 and got documents marked as Ex.P-1 to P-10 and he further examined one more witness as PW2.
7. Heard the arguments by the learned counsel for plaintiff and in support has filed following two citations as under:-
1. (1953) SCR 232 (Raj Bajrang Bahadur Singh V/s. Thakurain Bakhtraj Kuer).
2. (1944) 46 BOMLR 865 (Sopher V/s. The administrator General of Bengal).
8. The following points that arise for my consideration are:-
7
O.S.No.25076/2024 POINTS
1. Whether the plaintiff proves that, under the Will dated 29.01.2015, he is only having life interest in the suit schedule property?
2. Whether the plaintiff proves that the Will executed by Late.Smt.C.A.Ramadevi was a void bequeath as being in violation of rule against perpetuity and hit by Sec.114 of Indian Succession Act 1925 and same is to declared as Null and Void?
3. What decree or order?
9. My findings on the above points are as under:
Point No.1 : Affirmative,
Point No.2 : Affirmative,
Point No.3 : As per the final order for
-the following:
REASONS
10. Point No.1:-
In order to prove the case of the plaintiff himself has
examined as PW1 and got marked ExP1 to P10 and in support of his case, he has produced the copy of Sale Deed, in order to show that, the Late.Smt.C.A.Ramadevi was the 8 O.S.No.25076/2024 owner of the suit schedule property and considering the said document, it could be seen that, the said Late.Smt.C.A.Ramadevi has purchased the suit schedule property from BBMP on 18.03.1981 as per registered document No.143/1981-82 before Sub-Registrar, Jayanagar, Bengaluru.
11. Further the plaintiff has produced the death certificate of Late.Smt.C.A.Ramadevi dated 19.04.2021 and has produced the family tree issued by Deputy Thahasildar, Bengaluru South Taluk, City Circle Hobali, to show that, after her death the plaintiff's father and mother and himself are the only legal heirs of deceased Late.Smt.C.A.Ramadevi and also has produced the copy of Will at Ex.P.4 bequeathing the property in favour of plaintiff, based on which he has got entered his name over the suit property and also he is paying the tax as per Ex.P.4 and further has produced the Aadhar copy of himself at Ex.P6 and his mother at Ex.P.7 and the aadhar copy of deceased Late.C.A.Ramadevi. Based on the said documents, it can 9 O.S.No.25076/2024 be safely held that, the said plaintiff Mr. Siddhant Rishi Prabhakar based on the Will after the death of Late.C.A.Ramadevi has become the owner of the suit property and accordingly his name is entered into the revenue records and to show his possession, he has produced the tax receipts, which itself are sufficient come to conclusion that, the plaintiff is the absolute owner of the suit schedule property. It is pertinent to note here itself that, in this case, the said title and ownership along with the possession of the plaintiff is nowhere disputed, as there are no defendant in this case and even after paper publication at Ex.P10 no body has appeared before the court to denying the case which clearly goes to show that, the plaintiff is the owner and in possession of the suit schedule property, as on the date of filing of the suit.
12. Now, the plaintiff has approached this court, seeking declaration of the conditional bequeath made in his favour at Ex.P4 Will in which there is conditional clause for which the plaintiff is seeking the prayer to declare the same as 10 O.S.No.25076/2024 Null and Void and on perusal of the said document at Ex.P4 Will, the said condition mentioned by the testator reads as under.
''That my grandson Siddhanth has got title interest in the property and after his time his children if any shall succeed to the interest of Siddhanth in the immovable property''.
13. The above said recitals found in Ex.P4 makes it's clear that, there is a restriction on the absolute right of the beneficiary under the Will, thereby creating only a life interest in favour of the beneficiary, who were living on the date of death of testator ie., the plaintiff and his father and mother and also in favour of his successors, who were not yet born and not even existed as on the date of death of testator Smt. Late.C.A.Ramadevi.
14. Now, the said plaintiff in his argument has contended that, the said condition in the bequeath of the Will is Rule against perpetuity engrafted in Sec. 114 of 11 O.S.No.25076/2024 Indian Succession Act and the bequeath is void as only limited right and interest is Will created in favour of the beneficiaries which is against the provisions of Sec. 114 of Indian Succession Act 1925.
15. Sec.114 of Indian Succession Act speaks as under.
Sec.114:- No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life time of one or more persons living at a testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong''.
On plain reading of the said Sec.114 which embodies the principle of public polity and is stated to have taken note of various apprehensions which effect, free trade of property, optimum development of property till vesting occurs and postponement of vesting for large periods of time leading to uncertainty as regards succession amongst the heirs amongst other justifiable caused. Hence, the rule 12 O.S.No.25076/2024 of perpetuity is principle of law propounded and accepted by the English Courts that has been adopted and incorporated in the Indian Succession Act and also the same has been accepted by the Indian Courts with respect to the said principle.
16. Whereby the postponement of bequest beyond the life time of persons living at the time of the testator's death and up to the minority of the person in existence is a void bequest. It is also relevant that, Sec.113 of Indian Succession Act also interprets broadly the principle of '' Rule against perpetuity'' as it provides, that, in the event of a bequest to a person not in existence at the testator's death, subject to prior bequest could be upheld only in the subsequent bequest comprises whole of the remaining interests of the testator in the bequeathed. In effect, absolute vesting at some point appears to be the principle as incorporated U/sec. Indian Succession Act along with Sec. 114 of the Indian Succession Act. 13
O.S.No.25076/2024
17. Now, in this case, intention of the testator as reflected in the bequest stating that ''My grand son Mr. Sidhanth has got life interest in the property and after his life time his children if any shall succeed to the interest of Mr. Sidhanth in the immovable property'' clearly goes to show that, the bequest of postponing vesting is in violation of the ''Rule against perpetuity'' and the same is also void as the right is even though flowed to the son and grand son but as per rule of succession the limited bequest to the plaintiff is against the rule of perpetuity.
18. Apart from it, the said condition of bequest is void in the eye of law which is delayed vesting of right beyond the life time of one or more persons and the minority of some persons, who shall be in existence at the expiration of that period is not vesting of absolute right at any point of time in favour of the person living at the time of testator death, which is clearly breach of prohibition contained U/sec. 114 of Indian Succession Act and hence considering the said principle of Rule against perpetuity, it make it's 14 O.S.No.25076/2024 clear that, there is restrictions on the absolute right of the beneficiary under the Will, which is void in law.
19. Therefore, in view of my discussion and by considering the oral and documentary evidence of the plaintiff, I am of the opinion that, plaintiff has proved that he is only having life interest in the suit schedule property during the life time and accordingly I answer Point No.1 in the Affirmative.
20. POINT NO.2:-
Now coming to the doctrine of law against the perpetuity as per Sec. 114 Indian Succession Act, as discussed the bequest of postponing the vesting of right in future is in violation of Sec.114 of Indian Succession Act and any conditional bequest made is void in the eye of law and in this case also considering the condition bequeath made by the deceased Late.C.A.Ramadevi in the Will at EX.P4 is beyond the life time of person living at the time of testator death and there is no vesting of absolute right at 15 O.S.No.25076/2024 any point of time and the said absolute right given to the plaintiff is only during his life time, which is nothing but against the Rule of Perpetuity and the said condition laid down in the Will, is definitely the Rule against perpetuity and the same is hit by Sec. 114 of Indian Succession Act.
21. Hence, the bequest by a testator to his children for their respective life and after death to their respective unborn children at the testator death is void and it is not bequest of the sole interest that remains in the testator, since it is not certain that, there will be any grand children and as such a bequest to a son for life and after his death to his children, who will survive him is void and bad for the same reason as it is incomplete form of Will creating life interest to an unborn person and only during life time of a born person his against the rule of perpetuity.
22. Further, the plaintiff in this case has relied upon two citations as under:
16
O.S.No.25076/2024
1. (1953) SCR 232 (Raj Bajrang Bahadur Singh V/s. Thakurain Bakhtraj Kuer).
2. (1944) 46 BOMLR 865 (Sopher V/s. The administrator General of Bengal).
I have gone through the citations relied by the plaintiff counsel and by applying the said principle to the present case in hand the document at Ex.P4 is the conditional Will, which is against rule of perpetuity and with due respect to the said principle the same are applicable to the present case in hand.
23. Therefore, in view of my discussion and considering the oral and documentary evidence of the plaintiff has proved that the Will executed by Late.Smt.C.A.Ramadevi was a void bequeath as being in violation of rule against perpetuity and hit by Sec.114 of Indian Succession Act 1925 and same is required to be declared as Null and Void, accordingly, I answer Point No.2 in the Affirmative.
17
O.S.No.25076/2024
24. Point No.3:- For the forgoing reasons assigned on point No.1, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby decreed with cost.
Accordingly, the conditional Will dated 29.01.2015 at page No.4 in para No.3 mentioned as "That my grandson Mr.Siddhanth has got life interest in the property and after his time his children if any shall succeed to the interest of Siddhanth in the immovable property'' is hereby declared as Null and Void. Draw decree accordingly.
[Dictated to the Stenographer directly on Computer, after his transcription, corrected, signed and then pronounced by me in the open Court on this the 29th day of June, 2024].
(Sri. Rajesh Maruthi Kamate) LVII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT; BANGALORE.18
O.S.No.25076/2024 ANNEXURE List of witnesses examined for the plaintiffs :
PW.1 : Mr. Siddhant Rishi Prabhakar PW.2 : Smt. Arundhathi Rishi Prabhakar
List of documents marked for the plaintiff :
Ex.P1 : Certified copy of the Sale deed dt:
18.03.1981 Ex.P2 : Online certified copy of the Genealogical Tree dated 08.11.2011 Ex.P3 : Death certificate of Mrs. C.A.Ramadevi Ex.P4 : Certified copy of the WILL dated 29.01.2015 Ex.P5 : Online certified copy of the Tax Paid receipt Ex.P6 : Notarized copy of Aadhar card of plaintiff Ex.P7 : Notarized copy of Aadhar card of Smt. Arundhathi Rishi Prabhakar Ex.P8 : Notarized copy of Aadhar card of Late.Smt.C.A.Ramadevi Ex.P9 : Certificate U/sec. 65 (B) of Indian Evidence Act Ex.P10 : Indain Express Paper Publication dated 31.01.2024.
List of witnesses examined for the Defendant :
- NIL -19
O.S.No.25076/2024 List of documents marked for the Defendant:
- NIL -
KAMATE Digitally signed by
KAMATE RAJESH M
RAJESH M Date:
+0530
2024.07.02 16:17:16
(Sri.Rajesh Maruthi Kamate)
LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru. 20 O.S.No.25076/2024 21 O.S.No.25076/2024 Judgment pronounced in open court (vide separate Judgment) ORDER LVII Addl. City Civil & Sessions Judge, Mayo Hall unit, Bengaluru.