Bangalore District Court
Smt. K.Devaki vs Smt. Adhilakshmamma on 23 November, 2021
KABC010179932018
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH No.25).
Dated: This the 23 th day of November, 2021
Present: Smt. ISHRATH JAHAN ARA, B.A.L., LL.B.,
III Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.4773/2018
PLAINTIFF : Smt. K.Devaki
W/o. Sri. Dorai,
D/o. Late. Sri. Krishna,
Aged about 60 years,
R/at.No.89,10th Main,
J.C.Nagar, Kurubarahalli,
Bengaluru - 560086.
(By Sri.K.Mohan, Advocate)
VERSUS
DEFENDANTS : 1. Smt. Adhilakshmamma
(Deleted as per order dated
27.2.2019.) (Abated)
2. Sri. Poongavanam
Aged about 66 years,
S/o. Late. Sri. Krishna
Gounder @ Krishnappa
R/at.No.1352/3,
4th A Cross, 3rd Main Road
Prakashnagar,
Bengaluru - 560 021.
3. Sri. K. Mani
Aged about 56 years,
S/o. Late. Krishna Gounder @
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O.S.No.4773/2018
Krishnappa,
Prop. Jayalakshmi Tailors,
R/at No.8, 6th Main Road,
J C Nagar,
Bengaluru - 560 086.
(D.1 - Deleted)
(D.2 by Sri.MV Advocate)
(D.3 by Sri.PKS, Advocate)
Date of Institution 04-07-2018
Nature of Suit Suit for Partition
Date of commencement of 27.05.2019
evidence
Date of pronouncement of 23.11.2021
Judgment
Total Duration Years Months Days
03 04 19
J UD GM E N T
The Plaintiff has filed this suit against the
defendants for partition and separate possession of
her 1/4th share in the suit properties by metes and
bounds and for permanent injunction against the
defendants restraining them from alienating the suit
schedule property of creating any encumbrance over
the same.
The schedules of the plaint is as under;
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SCHEDULE A PROPERTY
All that piece and parcel of immovable property
bearing Old site No.11, Corporation No.8, situated at
6th Main Road, J.C.Nagar, Geliyara Balaga,
Bengaluru - 560 086, measuring East to West 30 feet
and North to South 40 feet, totaling 1200 sq.ft. and
bounded on;
East by : Property bearing site No.10
West by : Road
North by : Property bearing Site No.12
South by : Road.
SCHEDULE B PROPERTY
All that piece and parcel of immovable property
bearing No.1352, New No.1352/3, situated at 4 th A
Cross, 3rd Main Road, Prakashnagar, Bengaluru -
560 021, measuring East to West 50 feet and North
to South 30 feet, totaling 1500 sq.ft. and bounded
on;
East by : Road
West by : Private property.
North by : Property bearing Site No.1353
South by : Property bearing site No.1351
SCHEDULE C PROPERTY
All that piece and parcel of immovable property
bearing No.99/92, situated at 1st A Main Road,
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O.S.No.4773/2018
Swathanthrapalya, Sriramapuram, Bengaluru - 560
021, measuring East to West 16.3 feet and North to
South 16.9 feet, totaling 272.1872 sq.ft. and
bounded on;
East by : Valliamma's House
West by : 1st A Main Road.
North by : Ramanjalamma's House.
South by : Murugesh and Subrami's House
2. The brief facts of plaintiff case is as
under;
The plaintiff stated that the first defendant
herein is the wife of Late. Krishna Goundar @
Krishnappa. The plaintiff and defendants 2 and 3
herein are the children of Late. Krishna Goundar @
Krishnappa and defendant No.1. The Krishna
Goundar @ Krishnappa was the absolute owner in
possession and enjoyment of the suit A schedule
property, having acquired the same by virtue of the
registered Sale Deed dated 10.4.2003 which was
duly registered before the office of the Sub-Registrar,
Bangalore North Taluk, for the valuable sale
consideration amount. Likewise, Krishna Goundar
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O.S.No.4773/2018
@ Krishnappa purchased the suit B schedule
property under a registered Sale Deed dated
18.10.1958 which was duly registered before the
office of the Sub-Registrar, Bengaluru North Taluk
for valuable sale consideration amount. The suit C
schedule property was acquired by Krishna Goundar
@ Krishnappa by virtue of possession certificate
issued by the Corporation Authorities under PR
No.1233/1991-92 dated 19.11.1991. During the
lifetime of Krishna Goundar @ Krishnappa, all the
revenue records in respect of suit schedule property
was standing in his name and he is the khatedar of
suit A to C schedule properties. Krishna Goundar @
Krishnappa has put up construction over the suit B
schedule property which consist of ground, first and
second floor and likewise, Krishna Goundar @
Krishnappa has constructed suit A schedule
property which consist of ground and first floor and
the suit C schedule property consists the
construction of ground floor with asbestos sheet
roofing. Krishna Goundar @ Krishnappa during his
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O.S.No.4773/2018
lifetime has performed the marriages of his children
and subsequently, he died the death of an intestate
on 28.5.2009 by leaving behind the plaintiffs and
defendants herein as his only legal heirs to
succeeded to his estate. After the death of Krishna
Goundar @ Krishnappa, the plaintiff and defendants
together succeeded the suit properties and became
the co-owners of the suit property and they are in
joint possession and enjoyment of the same as
absolute owners without there being any partition
among themselves. The plaintiff and defendants 1 to
3 being the legal heirs of Krishna Goundar @
Krishnappa, each of them are entitled for 1/4th
share in the suit properties. The plaintiff
approached the defendant Nos.1 and 2 who are in
possession of suit B schedule property wherein 8
residential portions and two shops were let out to
tenants on a monthly rent and they are getting rent
of Rs.60,000/- per month and likewise, the 3 rd
defendant, who is in possession of the residential
unit and a tailoring shop in the suit B schedule
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O.S.No.4773/2018
property along with other 4 residential portions
which has been let out to tenants on a monthly rent
and getting rent of Rs.20,000/- and even from the
suit C schedule property they are getting monthly
rent of Rs.4,500/- per month and requested them to
effect partition and allot her legitimate share in all
the suit properties and also requested to partition
the rental income by allotting her 1/4th share.
However, the defendants, even though admitted the
right, title and interest of the plaintiff over the suit
property, but however they failed to effect partition
and allot her legitimate share in the suit property.
The plaintiff, without any other alternative has
issued legal notice on 16.3.2018 calling upon the
defendants to effect partition and allot her legitimate
share in the suit property and the said notice was
issued through registered post acknowledgment due
and the same was served upon the defendants. The
defendants, even after receipt of legal notice, neither
chose to comply the demand made in the notice nor
they have sent their reply. Hence, without any
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O.S.No.4773/2018
alternative, the plaintiff approached this court and
filed this suit.
3. After service of summons, the Defendant
Nos.1,2 and 3 have appeared before the Court
through their respective learned counsels.
The defendant Nos.1 and 2 as well as
defendant No.3 filed their separate written
statements.
The defendant Nos.1 and 2 in their written
statement, except admitting the relationship of the
plaintiffs with Krishna Goundar @ Krishnappa and
also by admitting that the suit schedule properties
are the absolute self-acquired properties of Krishna
Goundar @ Krishnappa, have denied the entire other
plaint averments and denied the share of the plaintiff
in all the suit properties. Inter-alia stated that,
Krishna Goundar @ Krishnappa during his lifetime,
apart from acquiring the suit properties has also
acquired immovable property in the name of this
plaintiff and this plaintiff, in turn has alienated the
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O.S.No.4773/2018
said property and she, by suppressing all these facts,
filed this false suit. Krishna Goundar @ Krishnappa
during lifetime, in order to avoid future litigation
between the family members has executed valid
documents. The Krishna Goundar @ Krishnappa,
during his lifetime had bequeathed the suit B
schedule property in favour of P. Venkatesh and P.
Mohan Raju under a registered Will dated 6.6.1997
which was duly registered before the office of the
Sub-Registrar. Under the said Will, the parents of P.
Venkatesh and P. Mohan Raju i.e., Sri.Poongavanam
and Smt.Govindamma were also beneficiaries and
subsequently they have executed a registered
Release Deed by relinquishing all their rights over
the suit B schedule property in favour of their
children P. Venkatesh and P. Mohan Raju as per the
wish of Late. Krishna Goundar @ Krishnappa. Based
on he registered Will as well as on the registered
Relinquishment Deed, the khata of the suit B
schedule property was mutated in the name of P.
Venkatesh and P. Mohan Raju by the BBMP and
10
O.S.No.4773/2018
both of them are exercising their absolute right over
the suit B schedule property. The suit C schedule
property is now in actual possession and enjoyment
of defendant No.1 and she is paying the tax by
exercising all her right, title as absolute owner. The
suit C schedule property was conveyed by Late.
Krishna Goundar @ Krishnappa in favour of his wife
Smt.Adhilakshmamma for her maintenance. The
plaintiff by taking advantage of illiteracy of defendant
No.1 has forcibly taken all the original document
relating to suit C schedule property from the custody
of defendant No.1 and for this reason, the defendant
No.1 has not applied for transfer of khata into her
name from the concerned authorities. Likewise, the
suit A schedule property is in possession and
enjoyment of the first defendant. The suit C
schedule property is the Streedhan property of
defendant No.1 and as such, the claim made by the
plaintiff in respect of suit A to C schedule properties
is not maintainable. The plaintiff has filed this false
suit only with an intention to extract money from
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O.S.No.4773/2018
these defendants even though she has already taken
her share from Krishna Goundar @ Krishnappa
during his lifetime. The plaintiff, after releasing the
registered transactions took place with respect to the
suit schedule properties, has filed this false suit
without there being any cause of action. The
plaintiff has not approached the court with clean
hands. Hence, prays to dismiss the suit.
The defendant No.3 filed his separate written
statement wherein also the defendant No.3, except
admitting the relationship and acquisition of
property by his father Krishna Goundar @
Krishnappa, has denied the right of the plaintiff over
the suit A to C schedule properties along with her
1/4th share in the suit properties. The defendant
No.3 has taken contention that, suit A to C schedule
properties are the self-acquired properties of Krishna
Goundar @ Krishnappa and during his lifetime, he
was enjoying the said properties as absolute owner.
Krishna Goundar @ Krishnappa died on 28.5.2009
by leaving behind the plaintiff and defendants and
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O.S.No.4773/2018
he died by leaving behind the testamentary
disposition of properties. The plaintiff having learnt
about the registered document executed by Late.
Krishna Goundar @ Krishnappa, has collected all the
original document from the hands of defendant No.1
on the pretext that she will get the khata transferred
in her name after the death of Krishna Goundar @
Krishnappa and has taken away all the original
documents. The Krishna Goundar @ Krishnappa
has executed valid document in favour of his sons
with an intention to avoid future differences within
the family members and also to avoid future
litigations. The defendant No.3 acquired the suit A
schedule property by virtue of the registered Release
Deed executed by defendant Nos.1 and 2 on
7.6.2012 wherein the defendant Nos.1 and 2
released their rights in respect of suit A schedule
property. The defendant No.3 is in peaceful
possession and enjoyment of the suit A schedule
property within the knowledge of this plaintiff.
Based on the registered Release Deed, the khata of
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O.S.No.4773/2018
the suit A schedule property was mutated in his
name and he is exercising his right, title and
interest as well as possession over the suit A
schedule property and he is paying the tax payable
to the suit A schedule property. The plaintiff has no
right to claim any share in the suit A schedule
property. The plaintiff is aware of the execution of
the Release Deed executed in favour of defendant
No.3. The Krishna Goundar @ Krishnappa during
his lifetime apart from acquiring the suit schedule
properties has also acquired immovable property in
the name of this plaintiff and she has already taken
her share during the lifetime of her father. The
plaintiff, by suppressing all these material facts and
even after taking her share in some other property
filed this false suit without there being any merits.
There is no cause of action for the plaintiff to file this
suit. The plaintiff has not properly valued the suit
and even she has not paid the proper court fee. The
plaintiff is not entitled for any relief, much less 1/4th
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O.S.No.4773/2018
share claimed by her in the suit properties. Hence,
prays to dismiss the suit of the plaintiff.
During the pendency of the suit, the defendant
No.1 died and as her legal heir, were already on
record as plaintiff and defendant No.2 and 3. Hence,
case against defendant No.1 was abated.
4. Based on the above pleadings, this Court
has framed following issues:-
1.Whether the plaintiff proves that herself and defendants are the co-owners of suit items ?
2. Whether the defendant No.1 and 2 proves that by virtue of registered Will dated 6.6.1997 executed by Krishna Goundar @ Krishnappa schedule B property is bequeathed to P. Venkatesh and P. Mohan Raju ?
(Recasted on 23.10.2019)
3. Whether defendant No.1 and 2 proves that schedule C property is Stridhana property of defendant No.1?
(Recasted on 23.10.2019)
4. Whether the defendant No.3 proves that by virtue of registered release deed executed by defendant No.1 and 2 on 7.6.2012 he became the absolute owner of A schedule property ?
5. Whether the plaintiff is entitled for the relief as prayed for ?
6. What Order or Decree?
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O.S.No.4773/2018
5. The plaintiff in order to prove her case, got examined as PW.1 and from her side 13 documents were marked as per Ex.P.1 to 13 and closed her side of evidence. After closure of the plaintiff's side evidence, the defendant No.2 examined as DW.1 and also examined witness from his side as DW.2. Defendant No.3 examined as DW.3. From the side of DW.1, 7 documents were marked as per Ex.D.1 to D.7. From the side of DW.2, Ex.D.2(a) and D.2(b) are marked. From the side of defendant No.3, Ex.D.8 to D.19 documents were marked and closed her side of evidence.
6. Heard arguments and perused the records. The learned Counsel for defendant No.2 also filed his written arguments.
7. The answers to the above Issues are:
Issue No.1 - Partly in the Affirmative, Issue No.2 - In the Affirmative, Issue No.3 - In the Negative, Issue No.4 - In the Negative, Issue No.5 - Partly in the Affirmative.16
O.S.No.4773/2018 Issue No.6 - As per Final Order, for the following:
R E A S ON S
8. Issue Nos.1 to 4 : As these Issues are interconnected with each other, they are taken together for consideration, in order to avoid repetition of facts.
The entire burden is on the plaintiff to prove her case and also to prove issue No.1. The plaintiff in order to prove her case and also to prove Issue No.1 got herself examined as PW.1. PW.1 filed her affidavit in-lieu of oral evidence wherein she has categorically deposed that she along with defendant Nos.2 and 3 are the children of Krishna Goundar @ Krishnappa and Smt.Adhilakshmamma who is the defendant No.1 herein. She deposed that her father Krishna Goundar @ Krishnappa was the absolute owner in possession and enjoyment of the suit A to C schedule properties having acquired the same during his lifetime and all these properties are his self- acquired properties. He deposed that her father 17 O.S.No.4773/2018 purchased the suit A schedule property under a registered Sale Deed dated 10.4.2003 for the valuable sale consideration amount which is duly registered before the office of the Sub-Registrar and likewise he purchased the suit B schedule property by virtue of a registered Sale Deed dated 18.11.1958 and even the said Sale Deed was registered before the office of the Sub-Registrar Bengaluru North Taluk. She deposed that the suit C schedule property was acquired by her father by virtue of a possession certificate issued by the Corporation authorities under PR No.1233/91-92 dated 19.11.1991 and based on the Sale Deeds and possession certificates, the khata of the suit A to C schedule properties was transferred in the name of her father Krishna Goundar @ Krishnappa by recognizing him as a khatedar of the suit properties. She deposed that her father, during his lifetime has put up construction over the suit A schedule property which consist of ground and first floor and likewise he constructed building in the suit B 18 O.S.No.4773/2018 schedule property which consist of ground, first and second floor and accordingly he constructed building in suit C schedule property which consists the construction of ground floor with asbestos sheet roofing. She deposed that her father Krishna Goundar @ Krishnappa died the death of an intestate on 28.5.2009 by leaving behind herself and her brothers and mother to succeed his estate and subsequently, after his death she along with the defendants have jointly succeeded the suit properties. She deposed that during the pendency of this suit, her mother defendant No.1 was also died on 25.10.2018 by leaving behind herself and defendant Nos.2 and 3 as her legal heirs and after the death of her parents she along with defendant Nos.2 and 3 were in joint possession and enjoyment of the suit properties without there being any partition among themselves. She deposed that she being the daughters of Krishna Goundar @ Krishnappa is entitled for 1/4th share in all the suit properties by metes and bounds. She deposed that 19 O.S.No.4773/2018 the second defendant is in possession and enjoyment of portion of suit A schedule property and other 8 residential portions and he let out the said portion of suit B schedule property in favour of tenants and creating monthly rent of Rs.60,000/- from the tenants. She deposed that the 3 rd defendant is in possession and enjoyment of residential unit along with tailoring shop in suit A schedule property and she let out in the residential portions in favour of tenants and getting rental income of Rs.20,000/-. She deposed that even the suit C schedule property was let out in favour of tenants and these defendants are getting monthly rent of Rs.4,500/- and accordingly they are getting total rental income of Rs.85,000/- per month, but however the defendants have not partitioned the rental income equally. She deposed that even though at the time of filing of the suit she was entitled for 1/4th share in all the suit properties including the rental income, but however after the death of her mother, her share was increased and now she is entitled for 1/3rd share in 20 O.S.No.4773/2018 all the suit properties. She deposed that before filing of the suit, she got issued the legal notice to the defendants on 16.3.2018 calling upon them to effect partition and allot her share in the suit property and the said notice was duly served upon the defendant Nos.1 and 2 under registered post acknowledgment due and even after receipt of legal notice, the defendants herein have neither chosen to comply the demand made in the notice nor they have sent any reply and as such, without any alternative, she approached this court and filed this suit.
9. PW.1 in order to corroborate her testimony got produced the certified copy of the Sale Deed dated 10.4.2003 as well as the Sale Deed dated 18.10.1958 standing in the name of her father Krishna Goundar @ Krishnappa and deposed that the original document are in the custody of these defendants. Hence, the certified copy of the Sale Deeds are marked as per Ex.P.1 and P.2 respectively. She got produced the copy of the legal notice along 21 O.S.No.4773/2018 with postal acknowledgment due cards for having served the notice to defendants 1 and 2 and unserved postal cover of defendant No.3 and the same is marked as Ex.P.3 to P.6 respectively. She got produced the death certificate of her father Krishna Goundar @ Krishnappa and her mother defendant No.1, marked as per Ex.P.7 and P.8 respectively. She got produced one more notice sent by her to the defendants on 18.5.2018 along with three postal acknowledgment due cards for having served the said notice, marked as per Ex.P.9 to P.12 respectively. The certified copy of the registered Will dated 2.6.1997 executed by Krishna Goundar @ Krishnappa, marked through confrontation during the cross-examination of DW.2 as per Ex.P.13.
10. The defendants even though admitted the fact that suit A to C schedule properties were acquired by Krishna Goundar @ Krishnappa during his lifetime and it is his self-acquired properties, however, they have denied the share of this plaintiff 22 O.S.No.4773/2018 in the suit property. The defendant No.2 has taken specific defence that his father during his lifetime bequeathed suit B schedule property by executing the registered Will on 6.6.1997 and as such, the suit B schedule property is not available for partition and likewise, the suit C schedule property was given to defendant No.1 for her maintenance and as such, the suit C schedule property is the Streedhan property of defendant No.1 and even with respect to suit A schedule property, under a registered relinquishment deed dated 7.6.2012, the defendant No.3 became the absolute owner of the suit property.
11. The learned Counsel for the defendants subjected PW.1 for cross-examination wherein PW.1 has categorically stated that all the suit A to C schedule properties were the self-acquired properties of her father and during his lifetime, the khata of these properties were standing in his name. PW.1 in her cross-examination stated that the suit A schedule property is now standing in the name of 23 O.S.No.4773/2018 defendant No.3, but however, she is not aware who has given the said property to him. Likewise, PW.1 has stated that the suit C schedule property, during the lifetime of her mother she was collecting the rents from the tenants and now after her death, the defendant No.2 is collecting the rent. Even though PW.1 has admitted the suggestion, even during the lifetime of her father, the suit C schedule property was enjoying by her mother even though the khata of the said property is standing in the name of his father. PW.1 has stated that she is not aware of the fact that in whose name the khata of the suit B schedule property is standing and likewise, she is not aware of the fact that now the khata of the suit B schedule property is standing in the name of defendant No.2 and his children, however, she denied the suggestion that the children of defendant No.2 have constructed upstairs of the building in suit B schedule property. PW.1 denied the suggestion that at the time of construction of her own house, defendants have given her money for 24 O.S.No.4773/2018 construction. However, PW.1 stated that she is not aware of the fact that her mother and defendant No.2 executed the registered Release Deed in favour of defendant No.3 in respect of suit A schedule property and accordingly he is in possession and enjoyment of suit A schedule property as the absolute owner. However, she denied the suggestion that she has no right of share in the suit properties.
12. The defendants except making these suggestion to PW.1 during her cross-examination, has not chosen to deny the documentary evidence adduced by DW.1 before this court to prove that suit A to C schedule properties were the self-acquired properties of her father Krishna Goundar @ Krishnappa. The defendants have not chosen to deny the execution of Sale Deed in favour of Krishna Goundar @ Krishnappa with respect to the suit A schedule property by the defendant No.1 herself being the general power of attorney holder holder of Smt. Sarasamma on 10.4.2003. The recitals of 25 O.S.No.4773/2018 Ex.P.1 document clearly proves that the Krishna Goundar @ Krishnappa has lawfully purchased the suit property for valuable sale consideration amount from the defendant No.1 herein who in turn being the general power of attorney holder holder of Smt. Sarasamma executed the Sale Deed. The recitals of Ex.P.1 document clearly proves that the he purchased the suit A schedule property for the valuable sale consideration amount of Rs.2,45,000/- and the said sale consideration amount was paid to the original owner Smt.Sarasamma through defendant No.1 herein. The defendants have clearly admitted the acquisition of suit Item No.1 property by Krishna Goundar @ Krishnappa under Ex.P.1 Sale Deed and also admitted the fact that he became the absolute owner of the suit A schedule property during his lifetime. Likewise, the defendants have not chosen to deny the Sale Deed of Krishna Goundar @ Krishnappa executed on 24.11.1958 with respect to the suit B schedule property. Even though PW.1 during her cross-examination stated 26 O.S.No.4773/2018 that she is not aware of the fact that her father Krishna Goundar @ Krishnappa during his lifetime with respect to his self-acquired suit B schedule property executed the registered Will in favour of the defendant No.2 and his children by bequeathing the suit B schedule property, however, the burden shifts on to the defendant No.2 to prove these facts to the satisfaction of the court. Likewise, the defendants have not chosen to deny the fact that suit C schedule property is also the self-acquired property of his father Krishna Goundar @ Krishnappa. No doubt, they have taken up the defence that the suit C schedule property was given to the defendant No.1 by her husband Krishna Goundar @ Krishnappa towards her maintenance and subsequently the said property became the streedhan property of defendant No.1. However, this fact was not suggested to PW.1 during her cross-examination and moreover, nothing has been elicited from the mouth of PW.1 with respect to this issue. When such being the case, the 27 O.S.No.4773/2018 burden is on the defendants to prove this fact to the satisfaction of the court.
13. The defendants, in order to prove their defence got examined defendant No.2 as well as defendant No.3 as DW.1 and DW.3 respectively. DW.1 filed his affidavit wherein he has categorically deposed that, all the suit items A to C schedule properties were self-acquired properties of his father Krishna Goundar @ Krishnappa and during his lifetime he was enjoying the suit schedule properties as the absolute owner. He deposed that, apart from the suit properties, his father Krishna Goundar @ Krishnappa also acquired immovable property in the name of this plaintiff and in turn, the plaintiff has alienated the said property and by suppressing the real facts approached before this Court. He deposed that her father being the absolute owner of the suit B schedule property during his lifetime bequeathed the suit B schedule property in his favour and also in favour of his sons P. Venkatesh and P. Mohan Raju 28 O.S.No.4773/2018 by executing a registered Will dated 6.6.1997 which was duly registered before the office of the Sub- Registrar. He deposed that after the death of his father, as per his desire, he along with his wife and children became the legatees under the Will and they became the absolute owners of the suit B schedule property. He deposed that he along with his wife released all their rights over the suit B schedule property in favour of their children P. Venkatesh and P. Mohan Raju by executing a registered Relinquishment Deed. He deposed that based on the Will as well as the registered Release Deed, his children P. Venkatesh and P. Mohan Raju become the absolute owners of the suit B schedule property and they are exercising their absolute right over the suit B schedule property. He deposed that based on the registered Will as well as the Release Deed, the khata of the suit B schedule property was transferred in the name of his children and they were paying the tax payable to the suit B schedule property. He deposed that the plaintiff has no legal 29 O.S.No.4773/2018 right to claim any share in the suit B schedule property as the same was bequeathed on 6.6.1997 itself by his father Krishna Goundar @ Krishnappa. He deposed that plaintiff has no right over the suit B schedule property as his father, by way of testamentary disposition by executing a registered Will alienated suit B schedule property. He further deposed that the suit C schedule property is in actual possession and enjoyment of his mother Smt.Adhilakshmamma as the said property was given to his mother Smt.Adhilakshmamma by his father Krishna Goundar @ Krishnappa towards the maintenance and now after the death of his mother, the suit C schedule property is available for partition and only in suit C schedule property, the plaintiff is having her share. He further deposed that, plaintiff, after having knowledge of all these registered transactions filed this false suit with respect to all the suit properties which is not maintainable. Hence, prays to dismiss the suit of the plaintiff. 30
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14. Even DW.3 in his affidavit filed in-lieu of oral evidence deposed that the suit A schedule property is absolutely belong to him and he is in possession and enjoyment of the suit A schedule property as the absolute owner. He deposed that he acquired the suit A schedule property under a registered Release Deed dated 7.6.2012 executed by his mother defendant No.1 and his father defendant No.2 and they released all their rights over the suit A schedule property in his favour. He further deposed that the suit A schedule property was originally belong to his mother and she executed a registered Sale Deed dated on 10.4.2003 in favour of his father Krishna Goundar @ Krishnappa and alienated the suit A schedule property and after the death of his father Krishna Goundar @ Krishnappa, his mother and brother i.e., defendant No.1 and 2 executed the registered release deed in respect of suit A schedule property in his favour on 7.6.2012. He further deposed that the plaintiff is aware of the said transactions and even she has orally admitted the 31 O.S.No.4773/2018 release deed and she has not claimed any right over suit A schedule property at the time of execution of registered release deed. He deposed that the plaintiff has no right to claim any share in the suit A schedule property as the said property is absolutely belong to him and based on the registered release deed, the khata of the suit A schedule property transferred in his name and all the relevant revenue records with respect to suit A schedule property is standing in his name by recognizing him as khatedar of the suit property. He deposed that he has put up construction in the suit A schedule property and also taken water and electricity connection and he is paying consumption bills to the concerned department. He deposed that defendant No.2 has created Will without his knowledge and subsequently, created the Release Deed dated 7.6.2012 based on the said Will, even though his father has not executed the Will in favour of defendant No.2. He deposed that neither defendant No.2, nor his children have got any right over the 32 O.S.No.4773/2018 suit B schedule property. He deposed that the suit C schedule property was belong to his mother defendant No.1 and she died during the pendency of this suit as intestate and he being the son of defendant No.1 has become absolute owner of suit C schedule property. Even DW.3 prays to dismiss the suit of the plaintiff with respect to suit A and C schedule properties.
15. DW.1 from his side got produced the certified copy of the Sale Deed of his father Krishna Goundar @ Krishnappa with respect to suit B schedule property dated 24.11.1958, marked as per Ex.D.1. He got produced the original registered Will executed by Krishna Goundar @ Krishnappa on 6.6.1997 marked as per Ex.D.2. He got produced the original Release Deed executed by him and his wife in favour of his children P. Venkatesh and P. Mohan Raju on 12.2.2017 marked as per Ex.D.3. He got produced the khata certificate and tax paid receipts along with khata extract with respect to suit 33 O.S.No.4773/2018 B schedule property marked as per Ex.D.4 to D.7 respectively.
16. DW.3 in order to corroborate his testimony got produced the certified copy of the Release Deed and original registered Release Deed executed in favour of defendant Nos.1 and 2 and the same is marked as Ex.D.8 and D.8(a) respectively. He got produced the encumbrance certificate with respect to suit A schedule property marked as per Ex.D.9. He got produced tax paid receipt along with challans for having paid the tax to the suit A schedule property marked as per Ex.D.10 to D.18 and D.10(a) to D.15(a) respectively. He got produced 14 electricity bills, marked together subject to production of their receipts as Ex.D.19.
17. The learned Counsel for the plaintiff subjected for cross-examination to both DW.1 an DW.3 respectively. The learned Counsel for defendant No.3 subjected DW.1 for cross- examination. Even though DW.1 in his cross- 34
O.S.No.4773/2018 examination stated that he is not aware of the fact that defendant No.3 is in possession of suit A schedule property and this defendant No.3 has constructed a residential house in suit A schedule property. However, DW.1 has categorically denied the suggestion that he along with his mother have jointly executed the registered Release Deed in respect of suit A schedule property in favour of this defendant No.3 on 7.6.2012 and based on the said registered Release Deed, defendant No.3 became the absolute owner of the suit A schedule property. However, DW.1 has categorically admitted the suggestion that the suit item No.3 property is purchased by his father and during the lifetime of his mother, the said property was in her possession and subsequently after her death, it has to be divided among all her legal heirs. Further DW.1 has clearly denied the suggestion that his father has not executed Ex.D.2 document. Even though DW.1 has stated that at the time of execution of Ex.D.2 document, he was not on the spot and as such he is 35 O.S.No.4773/2018 not aware of the fact that who is the scribe of Ex.D.2 document and on whose instructions Ex.D.2 document was executed.
18. DW.1 in his cross-examination further stated that he is not aware as to who all were present at the time of registering the Will and who presented the Will for registration. Even though DW.1 has stated that Ex.D.2 document was executed both by his father and mother, but however, he came to know about the execution of the Will in the year 1980 after his mother given him the original Will. DW.1 has stated that in the year 1982, his mother defendant No.1 given him the original Will and subsequently he came to know that his father during his lifetime executed the Will in respect of his suit B schedule property and based on the said Will, he along with his family members became the absolute owners of the suit B schedule property. Even though DW.1 in his cross-examination denied the suggestion that he has created and concocted Ex.D.2 by 36 O.S.No.4773/2018 colluding with the witnesses even though his father has not executed Ex.D.2 and this Ex.D.2 was created only with an intention to deprive the rights of the plaintiff over the suit B schedule property.
19. As the plaintiff has denied the execution of Ex.D.2 document by her father Krishna Goundar @ Krishnappa and also denied the execution of the document along with the signatures and LTM of Krishna Goundar @ Krishnappa on the said document, the defendant No.2 in order to prove the execution of Ex.D.2 document as required under law to be proved under Section 68 of the Indian Evidence Act and Section 63 of Indian Succession Act got examined the attesting witnesses to the Will as DW.2.
20. DW.2 is one Sri. Paneerselvam S/o. Late. Thangavelu, aged about 73 years and he filed his affidavit in-lieu of oral evidence wherein he has categorically deposed that in his presence and also in the presence of his wife Sri. Krishna Goundar @ 37 O.S.No.4773/2018 Krishnappa and his wife Smt.Adhilakshmamma have executed three Wills and he has attested all the three Wills. He deposed that his father Thangavelu was working in Mysore Spinning Mills, wherein Sri. Krishna Goundar @ Krishnappa was also working and as such, Krishna Goundar @ Krishnappa is his family friend and based on the said acquaintance, Krishna Goundar @ Krishnappa summoned him to to be an attesting witness to the Will. He deposed that the Krishna Goundar @ Krishnappa being the absolute owner of the suit B schedule property measuring East to West 50 feet and North to South 30 feet situated at Prakashnagar, Bengaluru along with the property measuring East to West 16.3 feet and North to South 16.9 feet situated at Swathanthrapalya, Srirampuram, Bengaluru, executed two separate registered Wills and both the Wills were registered before the office of the Sub- Registrar Srirampuram, Bengaluru on 6.6.1997 wherein, the property situated at Prakashnagar was bequeathed in favour of his elder son Poongavanam 38 O.S.No.4773/2018 and his wife Smt.Govindamma providing only life interest to them and after their death, the property has to be given to their children P. Venkatesh and P. Mohan Raju. He deposed that the property situated at Swathanthrapalya was bequeathed in favour of his daughter Smt.Devaki with the absolute ownership after the lifetime of Sri. Krishna Goundar @ Krishnappa. He deposed that at the time of execution of both the said Wills, Krishna Goundar @ Krishnappa and his wife Smt.Adhilakshmamma were present and they voluntarily executed the Will both in favour of defendant No.2 as well as in favour of this plaintiff. He deposed that the Krishna Goundar @ Krishnappa and his wife Smt.Adhilakshmamma had given the other properties measuring East to West 30 feet and North to South 40 feet situated at J.C.Nagar, Kurubarahalli in favour of Sri.K. Mani and his wife Smt. Jayalakshmi, providing only life interest to them and after their lifetime, the said property is to be given to their children Rekha, Ranjani and Shilpa. He deposed that all the said 39 O.S.No.4773/2018 three Wills were registered on the same day on 6.6.1997 and to all the three Wills, he made his signature as attesting witness. DW.2 got identified the Ex.D.2 Will executed in favour of defendant No.2 on 6.6.1997 and deposed that in his presence, the Krishna Goundar @ Krishnappa after executing the Will made his LTM on each page of the document and he got identified the LTM of the Krishna Goundar @ Krishnappa. Likewise, DW.2 got identified his signature on Ex.D.2 marked as per Ex.D.2(a) and deposed that after Krishna Goundar @ Krishnappa put his LTM, he made his signature as an attesting witness No.1 and subsequently, his wife made her signature. He deposed that one A.G. Shivanand was the scribe of the said Will and he got identified the signature of the scribe, marked as Ex.D.2(b).
21. Even though the learned Counsel for defendant No.3 as well as the learned Counsel for the plaintiff subjected DW.1 for cross-examination 40 O.S.No.4773/2018 and he was extensively cross-examined the witnesses, however, admittedly, defendant No.3 has not fully cross-examined DW.2. The learned Counsel for defendant No.3 except making suggestion that during the year 1997 the health condition of Krishna Goundar @ Krishnappa was deteriorated and he was completely bed-ridden and as such, he has not executed Ex.D.2 which has been categorically denied by DW.2, nothing fruitful has been elicited from his mouth. However, DW.2 in his cross-examination categorically stated that Krishna Goundar @ Krishnappa is the close friend of his father Thangavelu and he was his family friend and out of the acquaintance and friendship, Krishna Goundar @ Krishnappa summoned him and his wife Lakshmi to be the attesting witnesses to the Will and as per his request he along with his wife Lakshmi went to the office of Shivanand. He deposed that the Advocate Shivanand written the contents of theWill as per the instructions of Krishna Goundar @ 41 O.S.No.4773/2018 Krishnappa and based on the said Will, the suit B schedule property was given to the defendant No.2.
22. DW.2 has categorically deposed that Krishna Goundar @ Krishnappa and his wife divided all their properties equally among their children by executing three separate Wills and as such, the Will executed by Krishna Goundar @ Krishnappa is binding on all the parties. DW.2 during the cross- examination of this plaintiff has clearly admitted the Will confronted to him and admitted that in his presence, Krishna Goundar @ Krishnappa has also executed the Will on the same day i.e., on 6.6.1997 in favour of this plaintiff. As DW.2 admitted the Will and also admitted that the said Will was executed by Krishna Goundar @ Krishnappa, the said document was marked as Ex.P.13. However, Dw.2 has categoricallydenied the suggestion that Krishna Goundar @ Krishnappa has neither executed Ex.P.13 nor Ex.D.2 by marking his LTM and he colluding with defendant No.2 along with his family members 42 O.S.No.4773/2018 created and concocted Ex.D.2 document with an intention to help defendant No.2. The plaintiff, except making these suggestions to DW.2 which has been categorically denied by DW.2, nothing fruitful has been elicited from his mouth either to disbelieve his testimony or to discard his evidence. The evidence of DW.2 clearly proves that the Krishna Goundar @ Krishnappa and his wife defendant No.1 has not only executed Ex.D.2 document in favour of defendant No.2 but they have also executed two more Wills in favour of their other two children and even those Wills were duly registered before the office of the Sub-Registrar and among these two Wills, Ex.P.13 document is also one of the Will executed in favour of this plaintiff.
23. The plaintiff, as well as defendant No.3 have not made out any good valid grounds why this Court should not believe the evidence of DW.2 and how his evidence is inadmissible in the eye of law. As I have discussed, the plaintiff and defendant No.3, 43 O.S.No.4773/2018 except denying the execution of Ec.D.2, have not chosen to disprove the contents of Ex.D.2. moreover, the plaintiff herself got confronted Ex.P.13 document to DW.2 and suggested that on 6.6.1997 the Krishna Goundar @ Krishnappa has even registered the said Will before the office of the Sub-Registrar which has been categorically admitted by DW.2. The evidence of DW.2 clearly proves that the Krishna Goundar @ Krishnappa on 6.6.1997 went to the Office of Advocate Shivanand to prepare the Will and as per his instructions, Ex.D.2 document was executed and subsequently, it was duly registered before the office of the Sub-Registrar in accordance with the Registration Act. The recitals of Ex.D.2 clearly proves that after execution of the Will, it was presented before the Sub-Registrar for registration and accordingly, the Will was duly registered before the office of the Sub-Registrar, Rajajinagar, Bengaluru. Ex.D.2 document was duly executed and registered in accordance with the Registration Act. As I have discussed supra, the plaintiff and 44 O.S.No.4773/2018 defendant No.3 except denying the execution of Ex.D.2 have not chosen to create any suspicion or the suspicious circumstances to doubt the execution of the Will by Krishna Goundar @ Krishnappa. Admittedly, the Krishna Goundar @ Krishnappa executed Ex.D.2 document in favour of his son defendant No.2 as well as in favour of his wife Govindamma by giving them life estate and subsequently, the said property should go to their children P. Venkatesh and P. Mohan Raju. DW.1 got produced Ex.D.3 document before this court, wherein himself and his wife Govindamma by releasing all their rights over the suit B schedule property given the entire property in favour of their children P. Venkatesh and P. Mohan Raju. Ex.D.4 to D.7 documents clearly prove that based on Ex.D.3 document, the khata of the suit B schedule property was mutated in the name of P. Venkatesh and P. Mohan Raju by recognizing them as khatedar of suit B schedule property and they are exercising their right over the suit B schedule property. The 45 O.S.No.4773/2018 evidence adduced by DW.1 and DW.2 clearly proves the execution of Will dated 6.6.1997 by Krishna Goundar @ Krishnappa with respect to suit B schedule property.
24. DW.3, in his cross-examination has categorically admitted the suggestion that the suit A schedule property was originally belonged to Smt. Sarasamma and she executed a power of attorney in favour of his mother defendant No.1 in the year 1989. He further admitted the suggestion that his mother defendant No.1 sold the suit A schedule property in favour of his father Krishna Goundar @ Krishnappa during his lifetime and accordingly his father became the absolute owner of the suit A schedule property. DW.3 in his cross-examination admitted the suggestion that his mother after the death of his father, after receiving consideration with respect to the suit A schedule property, executed Ex.D.8 document in his favour along with defendant No.2. However, he has stated that he is not aware of 46 O.S.No.4773/2018 the fact that his father during his lifetime, with respect to the suit A schedule property has executed a testamentary documents in his favour. Admittedly, DW.3 has not taken any defence that his father, during his lifetime being the absolute owner of the suit A schedule property having purchased the same under Ex.P.1 registered Sale Deed bequeathed his property in his favour under a registered Will and based on the said Will, became the absolute owner of the suit A schedule property. Even according to DW.3, he acquired title over the suit property after the death of his father based on Ex.D.8 and D.8(a) document executed by his mother defendant No.1 and defendant No.2 after receiving consideration in their favour. DW.3 in his cross-examination by the plaintiff has clearly admitted that the plaintiff has not executed any kind of document in his favour with respect to suit A schedule property and likewise, he admitted the suggestion that the plaintiff has not released her right over suit A schedule property in his favour. When such being the case, 47 O.S.No.4773/2018 the Release Deed executed by defendant Nos.1 and 2 in favour of defendant No.3 as per Ex.D.8 and D.8(a) is not binding upon this plaintiff with respect to her legitimate share in the suit A schedule property.
25. The plaintiff, being the daughter of Krishna Goundar @ Krishnappa after his death has jointly succeeded the suit A and C schedule properties along with the defendants 1 to 3 and became the joint owners in joint possession and enjoyment over the suit A and C schedule properties. However, with respect to suit B schedule property, as I have discussed supra, the Krishna Goundar @ Krishnappa during his lifetime being the absolute owner of the suit B schedule property bequeathed his property in favour of defendant No.2 and his wife and subsequent to that the defendant No.2 and his wife became the legatees, after the death of Krishna Goundar @ Krishnappa, they become the absolute owners of the suit B schedule property and later thereon, they released their right over the suit B 48 O.S.No.4773/2018 schedule property in favour of their children P. Venkatesh and P. Mohan Raju by executing a registered Release Deed as per Ex.D.3.
26. On the contrary, the defendant No.3 has utterly failed to prove that by virtue of the registered Release Deed executed by defendant Nos.1 and 2 on 7.6.2012, he became the absolute owner of the suit A schedule property and the said Release Deed binds the plaintiff with respect to her share in the suit A schedule property. Likewise, defendant No.3 utterly failed to prove that the suit C schedule property is the Streedhan property of defendant No.1 and it is only after her death, suit C schedule property is devolved upon this plaintiff for partition and she is entitled for share in the suit C schedule property. The arguments canvassed by the learned Counsel for the plaintiff that suit A to C schedule properties are self-acquired properties of Krishna Goundar @ Krishnappa and he acquired all these properties during his lifetime out of his self earning and became 49 O.S.No.4773/2018 the absolute owner of the suit properties is fully convince this court. However, his argument that the Krishna Goundar @ Krishnappa died death of an intestate without executing any testamentary document in favour of anybody and after the death of Krishna Goundar @ Krishnappa, the plaintiff and defendant Nos.1 to 3 have jointly succeeded all the suit properties and they became the joint owners in joint possession and enjoyment of all the suit properties is not fully convince this court. His argument is not acceptable with respect to suit B schedule property as the Krishna Goundar @ Krishnappa during his lifetime being the absolute owner of the suit B schedule property bequeathed his property in favour of his son defendant No.2 along with his wife by executing a registered Will dated 6.6.1997 and after the death of Krishna Goundar @ Krishnappa, the defendant No.2 and his wife become the absolute owners of the suit B schedule property. However, his argument that suit A and C schedule properties are the joint family 50 O.S.No.4773/2018 properties, jointly inherited by this plaintiff after the death of Krishna Goundar @ Krishnappa and as such, this plaintiff is having share in both the suit A and C schedule properties is fully convince this court and therefore, it is acceptable. The written arguments filed by the defendant No.2 with respect to issue No.2 is fully convince this court. The learned Counsel for defendant No.2 in his written arguments has categorically stated that the Krishna Goundar @ Krishnappa, being absolute owner of suit B schedule property having purchased the same under Ex.P.2 and Ex.D.1 registered Sale Deeds bequeathed his suit B schedule property by executing Ex.D.2 Will which was duly registered before the office of the Sub-Registrar on 6.6.1997 and based on the said Will, the defendant No.2 and his wife became the absolute owner of the suit B schedule property after the death of Krishna Goundar @ Krishnappa and they being the absolute owners of the suit B schedule property have released their right over the suit B schedule property in 51 O.S.No.4773/2018 favour of their children P. Venkatesh and P. Mohan Raju by executing Ex.D.3 Release Deed and based on the said document, both the children of defendant No.2 P. Venkatesh and P. Mohan Raju became the absolute owners of suit B schedule property and all the corporation records with respect to suit B schedule property is lawfully mutated in the name of said P. Venkatesh and P. Mohan Raju by recognizing them as khatedar of suit B schedule property and under these circumstances, the plaintiff is not entitled for any relief in favour of suit B schedule property is fully convince this court. Likewise, his arguments that as per Ex.P.13, the plaintiff has acquired right over her property and she herself got produced the said document and in such being the case, she cannot deny the execution of Ex.D.2 document is also fully convince this court. Likewise, his argument that this defendant No.2, in order to prove the execution of Ex.D.2 document examined the attesting witnesses as per DW.2 and the evidence of DW.2 is fully corroborated with the evidence of 52 O.S.No.4773/2018 DW.1 along with Ex.D.2 document and accordingly defendant No.2 has fully proved the execution of Ex.D.2 as per the requirements to Sec.68 of Indian Evidence Act along with Sec.63 of Indian Succession Act and he has proved the genuineness of the Will as required under law and he proved the due execution of the document by the testator along with his signatures on the Will is fully convince this court. His arguments that the testator during his sound disposing state of mind, without any threat or coercion or any undue influence out of his free mind had voluntarily executed Ex.D.2 in favour of defendant No.2 and all these facts have been clearly proved by DW.1 by adducing convincing evidence before this court is fully convince this court. The judgment, relied on by the learned Counsel for defendant No.2 in support of his arguments, reported in ;
(1) AIR 2005 SC 52 - Meenakshi Ammal (since deceased by LRs) and others v/s. Chandrashekaran and others, 53 O.S.No.4773/2018 (2) AIR 2005 SC 233- Daulat Ram and Others v/s. Sodha and Others (3) 2006 AIR SCW 2404 (Supreme Court) Gurdev Kaur and Others v/s. Kaki and Others.
(4) 2015 (3) KCCR 2746 (Karnataka High Court) Jana Bai and others v/s. Sri.Komalan since deceased by his Lrs. And others.
(5) 2017 KCCR 3428 (Karnataka High Court-Kalburgi Bench) - Veerabhadrayya and another vs. Mythra Bai, (6) Sridevi and others v/s. Jayaraja Shetty and others.
(7) ILR 2004 KAR 440 (Supreme Court) Ramabai Padmakar Patil (dead) through LRs and others vs. Rukmini Vishnu Vekhande and others.
are amply applicable to the present case on hand and helpful to the defence taken by defendant No.2 along with proof of execution of Ex.D.2 document.
27. As I have discussed supra, without there being any suspicious circumstances and even without the plaintiff and defendant No.3 rises any doubt regarding existence of Ex.D.2 document, merely on the suggestion of the plaintiff and defendant No.3 that his father has not executed Ex.D.2 in favour of defendant No.2 and as such, it 54 O.S.No.4773/2018 has to be rejected cannot be acceptable and it holds no merit. The written arguments filed by the learned Counsel for defendant No.2 is fully convince this court and therefore, it is acceptable. However, the written arguments filed by the learned Counsel for defendant No.3 with respect to the suit A schedule property is not convince this court and it cannot be acceptable. As I have discussed supra, the plaintiff has not released her right over suit A schedule property after she succeeded the suit A schedule property along with defendant Nos.1 to 3 after the death of her father Krishna Goundar @ Krishnappa. When such being the case, Ex.D.8 and D.8(a) documents does not bind on this plaintiff with respect to her share in the suit A schedule property. The oral and documentary evidence adduced by the plaintiff before this court with respect to suit A and C schedule properties is fully convince this court and therefore, it is accepted. Hence, by considering the facts and evidence available on record, I answer Issue No.1 partly in the Affirmative only with respect 55 O.S.No.4773/2018 to suit A and C schedule properties, issue No.2 in the Affirmative and Issue No.3 and 4 answered in the Negative.
28. Issue No.5: The plaintiff while answering Issue Nos.1 to 4 proved that she along with defendants have jointly succeeded the suit A and C schedule properties after the death of their father Sri. Krishna Goundar @ Krishnappa and all of them become the co-owners in joint possession and enjoyment of both suit A and C schedule properties. This Court has already answered Issue No.1 partly in affirmative in favour of plaintiff with respect to suit A and C schedule properties. Likewise, the defendant No.2, while answering issue Nos.1 to 4 proved the execution of registered Will dated 6.6.1997 by his father Krishna Goundar @ Krishnappa with respect to suit B schedule property and also proved that subsequently, he released all his rights over the suit B schedule property along with his wife in favour of his children P. Venkatesh 56 O.S.No.4773/2018 and P. Mohan Raju by executing registered Relinquishment Deed as per Ex.D.3. This court has already answered issue No.2 in favour of defendant No.2 in the Affirmative. However, the defendant No.2 and 3 failed to prove that suit A schedule property is the absolute property of defendant No.3 by virtue of the registered Release Deed executed by defendant Nos.1 and 2 on 7.6.2012 on which the plaintiff has no right over the suit A schedule property and likewise, the suit C schedule property is the Streedhan property of defendant No.1 and as such this plaintiff is not entitled for any share. This court, while answering issue Nos.3 and 4 has already answered both these issues in the negative by holding that the registered Release Deed executed by defendant Nos.1 and 2 in favour of defendant No.3 on 7.6.2012 is not binding upon this plaintiff with respect to her legitimate share in suit A schedule property. It is also an admitted fact that, after the suit was filed, during the pendency of this suit and after the defendant No.1 along with defendant No.2 57 O.S.No.4773/2018 filed her written statement, the defendant no.1 was died and case against defendant No.1 was abated as her LRs were already on record as plaintiff and defendant Nos.2 and 3. When such being the case, after the death of defendant No.1, the share of this plaintiff over the suit A and C schedule properties enhance from 1/4th share to 1/3rd share. Accordingly, I answer this issue Partly in the Affirmative, by allotting 1/3rd share to the plaintiff in respect of suit A and C schedule properties.
22. Issue No.6: For the aforesaid reasons, this court proceeds to pass the following:
OR D E R The suit of the plaintiff is hereby partly decreed with costs.
The plaintiff is entitled for 1/3rd share in both suit A and C schedule properties by metes and bounds.58
O.S.No.4773/2018 However, the suit of the plaintiff with respect to her share in suit B schedule property is hereby dismissed.
The defendants are hereby restrained from alienating the suit A schedule property and suit C schedule property in favour of any third parties by including the share of this plaintiff till the 1/3rd share of this plaintiff was carved out and put her in possession of the said property.
Office to draw preliminary decree accordingly.
(Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in Open Court on this the 23 rd day of November, 2021.) (ISHRATH JAHAN ARA ) III Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 - Smt. K. Devaki.
List of documents exhibited for the Plaintiff:
Ex.P1 - C/c. Sale Deed dated 10.4.2003 59 O.S.No.4773/2018 Ex.P2 - C/c. Sale Deed dated 18.10.1958.
Ex.P3 - Copy of Legal notice. Ex.P4,5 - Acknowledgment Due Cards.
Ex.P6 - Regd. Post.
Ex.P.7 - Death Certificate of Krishnappa. Ex.P.8 - Death Certificate of Smt.Adhilakshmamma Ex.P.9 - Notice copy dated 18.5.2018. Ex.P.10-12 Acknowledgment Cards for having received the notices.
Ex.P.13 - C/c. of the registered Will dated 2.6.1997 List of witnesses examined for the defendants :
DW.1- Sri. K. Poongavan List of documents exhibited for the Defendants:
Ex.D.1- C/c. of Sale Deed dated 24.11.1958 Ex.D.2- Original Regd. Will dated 6.6.1997. Ex.D.2(a)- Signature of DW.2 on Ex.D.2. Ex.D.2(b)- Signature of A.G.Shivanand on Ex.D.2.
Ex.D.3- Original registered Release Deed dt. 2.2.2012.
Ex.D.4- Uttarapatra. Ex.D.5- Three receipts of BBMP. Ex.D.6- Khata Certificate. Ex.D.7- Khata Extract. Ex.D.8- C/c. Of Release Deed. Ex.D.8(a)- Ex.D.9- Encumbrance Certificate.
Ex.D.10-18 Tax Paid Challans and Receipts.
Ex.D.10(a)
Ex.D.15(a)
Ex.D.19- 14 Electricity Bills.
(ISHRATH JAHAN ARA )
III Addl. City Civil & Sessions Judge, Bengaluru.
1
O.S.No.4773/2018
2
O.S.No.4773/2018
Judgment pronounced in the open
Court. The operative portion of the same is as under: (vide separate judgment) O R DE R The suit of the plaintiff is hereby partly decreed with costs.
The plaintiff is entitled for 1/3rd share in both suit A and C schedule properties by metes and bounds.3
O.S.No.4773/2018 However, the suit of the plaintiff with respect to her share in suit B schedule property is hereby dismissed.
The defendants are hereby restrained from alienating the suit A schedule property and suit C schedule property in favour of any third parties by including the share of this plaintiff till the 1/3rd share of this plaintiff was carved out and put her in possession of the said property.
Office to draw preliminary decree accordingly.
(ISHRATH JAHAN ARA) III Addl. City Civil & Sessions Judge, Bengaluru.