Bangalore District Court
Smt.Gayathri W/O K. Shankar vs ) Smt.Lakshmidevamma on 23 August, 2021
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 23rd day of August, 2021
Present
Smt. SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.6238/2015
Plaintiff: Smt.Gayathri w/o K. Shankar
aged about 56 years
r/at Kuvempu Nagar
1st Cross, 'Sakshi Nilaya'
Fort, Chikmagalur.
(By Sri Y.S. Suresh, Adv.)
Vs.
Defendants: 1) Smt.Lakshmidevamma
w/o Late T. Subbarao
Aged about 78 years
c/o Pushpalatha Ramakrishna
#65, 2nd Cross, GKW Layout
Bengaluru.
(Dead by LRs)
(Plaintiff and D.2 to 4 are
her LRs)
2) Smt.Pushpalatha
w/o Ramakrishna
Aged about 58 years
c/o Pushpalatha Ramakrishna
#65, 2nd Cross, GKW Layout
Bengaluru.
3) T.S. Shankar
s/o Late T. Subbarao
aged about 54 years
r/at Near Mysore Bank
Behind Subramanya Temple
Vijayanagara Dasarahalli
Bengaluru.
2 O.S.No.6238/2015
4) T.S. Raghavendra
s/o Late T. Subbarao
aged about 52 years
#677, Kumara Nilaya
6th Main, Vijayanagara
Bengaluru-40.
(By Sri Chetan B. Angadi, Adv. for
D.1, 2, 4 and Sri M. Bhaskar Jois,
Adv. for D.3)
Date of institution of the suit 16.07.2015
Nature of the suit For partition and
separate possession
and mesne profits
Date of the commencement 13.09.2017
of recording of evidence
Date on which the judgment 23.08.2021
Pronounced
Total duration Years Months Days
06 01 07
JUDGMENT
This suit is filed by the plaintiff against the defendants seeking the relief of partition and separate possession of her 1/5th share in the suit schedule properties along with mesne profits.
2. The brief facts leading to the plaintiff's case are summarized as under:-
The subject matter of the litigation is detailed in schedule of the plaint which consists one house property bearing khatha No.103 situate at Vijayanagara, 3 O.S.No.6238/2015 Bengaluru and landed properties as detailed in item No.1 to 18 of the schedule-2 of the plaint. It is stated that the plaintiff and defendant No.1 to 4 are the legal heirs of one late Subbarao and constituted a Hindu Undivided Family and the suit schedule properties are said to be their ancestral and joint family properties. It is further stated that the said Subbarao died on 05.07.2014 leaving behind him the plaintiff and defendant No.1 to 4 as his absolute legal heirs. The defendant No.1 is said to be his wife and plaintiff and defendant No.2 are the daughters and defendant No.3 & 4 are his sons. The plaintiff has further stated that deceased Subbarao was managing the joint family properties during his lifetime and he along with his father and his two brothers owned landed properties in Andhra Pradesh as described in the schedule and also they were being cultivated by the members of their joint family. It is further stated that in the family partition effected between late Subbarao and his father and his brother, the said Subbarao said to have obtained schedule item No.2 to 18 properties and thereafter he started cultivating the said lands through labours and was deriving income. He was said to be in Government service after 35 years of his service he 4 O.S.No.6238/2015 retired and obtained a site from Government and constructed a small house in the portion of the said site utilizing the income derived from the suit agricultural lands. It is further stated that thereafter he got constructed house properties in other portions of the site as detailed in item No.1 of the plaint and certain portions of the landed properties were sold by him and derived income and utilized the same for acquiring the house properties and thus the suit schedule properties are said to be ancestral and joint family properties of the plaintiff and defendant No.1 to 4 having their legitimate share in these properties. The plaintiff has further stated that late Subbarao has constructed the house properties in item No.1 much earlier to his retirement from his service and at the time of plaintiff's marriage in the year 1997 all the suit house properties were fully constructed and the plaintiff and defendants are entitled for their legitimate share in all these properties and thus the plaintiff claims to be entitled for 1/5th share in all the suit schedule properties. She has further urged that she got issued a registered legal notice dated 10.12.2014 to defendant No.1, 2 & 4 demanding partition and separate possession of her share in the suit schedule properties after the 5 O.S.No.6238/2015 death of her father and in response to this notice defendant No.1 & 2 said to have issued reply on 14.12.2014 alleging that late Subbarao has executed a registered WILL dated 17.02.2000 which was registered on 18.02.2000 bequeathing the schedule properties in a different manner. The plaintiff has further alleged that even these defendants have alleged that in the said WILL the entire suit item No.1 property has been given to defendant No.2 & 4 and the entire landed properties have been allotted to the plaintiff and defendant No.3.
However the plaintiff has alleged that she has denied the said WILL on the ground that it is concocted and false which was fraudulently created by defendant No.2 & 4 in order to grab the suit house properties which are valuable properties thereby depriving her of getting legitimate share. The plaintiff has further alleged that late Subbarao never executed the alleged WILL but it was concocted by undue influence, fraud and misrepresentation as he was not having good health at the time of alleged WILL and had become very old and was not having sound disposing state of mind. She has further alleged that even he had no right to execute the alleged WILL since suit item No.1 property is part and 6 O.S.No.6238/2015 parcel of the ancestral and joint family properties and the house structures in item No.1 property have also been constructed and therefore prima-facie the alleged WILL is shown to be concocted by defendant No.2 & 4. Thus the plaintiff has claimed that the said WILL is not binding on her nor on any other LRs and late Subbarao and as such all the LRs of Subbarao have got legitimate share in the suit schedule properties. She has further stated that even in the said WILL it is recited that the said WILL would come into force only after the death of her mother i.e., defendant No.1 and as such the plaintiff and defendants are said to be in joint and constructive possession of all the suit schedule properties. The plaintiff has further alleged that inspite of her repeated requests and demands and issuance of legal notice, the defendants have not arranged for partition and separate possession of her share and hence she has been constrained to come up with this suit claiming her 1/5th share in the suit schedule properties along with mesne profits and hence the suit.
3. In pursuance of the service of suit summons, defendant No.1, 2 & 4 appeared through their counsel whereas defendant No.3 appeared through a different 7 O.S.No.6238/2015 counsel and the said counsel submitted that defendant No.3 has no written statement which is evident from order dated 18.09.2015. However defendant No.1, 2 & 4 filed their written statement denying the entire claim of the plaintiff. At the very outset the defendant No.1, 2 & 4 have contended that the present suit is filed by the plaintiff by suppressing material facts and there is no cause of action for her to file the suit who has earlier accepted the WILL of her father. It is further contended that the plaintiff has been troubling the defendants and also her father when he was alive and with ill-motive she issued notice to her father including these defendants on 29.01.2004 making similar demand for share in the suit schedule properties and since their father himself responded to her ill-motivated notice by clarifying her claim to be false by issuing reply. It is further contended that late Subbarao originally hailed from Andhra Pradesh and he along with his brothers jointly owned ancestral properties in Andhra Pradesh and by virtue of partition between Subbarao and his brothers he was allotted share in the ancestral properties which are till this date barren and uncultivated lands. It is further contended that since late Subbarao was educated, he was appointed as 8 O.S.No.6238/2015 Assistant Accountant in the erstwhile Mysore Government and in the year 1943 he left his ancestral home and settled in Bengaluru. The defendants have further contended that recognizing the service of Subbarao to the Government, he was allotted a site from the Government on 01.07.1961 @ 9/- per square yard at Vijayanagara, Bengaluru which he had acquired out of his 4 sale deeds. It is further contended that the properties left behind by late Subbarao in Andhra Pradesh were uncultivated lands and in the year 1965 Subbarao obtained licence from the Corporation and constructed a house property in the portion of site by borrowing loan by mortgaging the said site and also utilized his savings from the salary to complete the said construction. It is further contended that the plaintiff's father Subbarao derived no income from his ancestral properties as alleged by the plaintiff. They have further contended that later on he got promoted and got increment in the pay and became the District Treasury officer and retired on 01.08.1978. It is further stated that subsequent to his retirement he was given lump-sum benefit in the form of gratuity, PF, Insurance and other retirement benefits and in the year 1979 he once again obtained licence from 9 O.S.No.6238/2015 Corporation and constructed in the remaining portion of the above said site and thus item No.1 house property is said to be the self acquired property of late Subbarao. The defendants have further contended that the properties held by late Subbarao by virtue of his self acquisition and of inheritance were subjected to disposal through his registered WILL dated 17.02.2000 wherein he disposed off properties i.e., schedule item No.1 & 2 properties which were accepted by the plaintiff and defendants and accordingly the properties were divided amongst the beneficiaries. Further these defendants have categorically denied the claim of the plaintiff that she along with defendant No.1 to 4 still continue as the members of the undivided family and that the schedule properties are their ancestral properties, etc. It is contended that all the sons and daughters of late Subbarao are married and are residing along with their respective spouses. The plaintiff is said to be married in the year 1977, defendant No.2 got married in the year 1988 and the sons of Subbarao got married in the year 1994 and since then each one has their own occupation and living separately along with their families and therefore there is no question of the plaintiff and 10 O.S.No.6238/2015 defendants constituting joint family as claimed by the plaintiff. They have further denied the claim of the plaintiff that late Subbarao, his father and two brothers owned lands in Andhra Pradesh which were cultivated by the joint family members and that late Subbarao subsequent to the partition, was cultivating these lands and deriving income, etc., as alleged in the plaint. They have further denied that by utilizing the income derived from his properties he acquired schedule item No.1 property as claimed by the plaintiff. It is contended that late Subbarao had taken responsibility to clear his brothers' loan from his personal earnings which is evident in the partition dated 20.11.1972. It is further denied that late Subbarao constructed the house in item No.1 property much prior to his retirement as claimed by the plaintiff. Thus the defendants have denied the claim of the plaintiff that she is also having 1/5th share in all the suit schedule properties. They have further denied her allegations that the subject WILL executed by their father is the result of concoction and fraudulent acts of these defendants. It is further denied that late Subbarao was not in a sound disposing state of mind to execute the said WILL etc., as alleged by the plaintiff. They have further 11 O.S.No.6238/2015 contended that since already the shares have been allotted by late Subbarao as per the said WILL there is no question of these defendants once again arranging for partition and giving the share to the plaintiff as claimed by her. It is their contention that as the suit schedule properties were self-acquired properties of late Subbarao he had absolute right to dispose off those properties as per the WILL and for these reasons defendant No.1, 2 & 4 have sought for dismissal of the suit.
5.On the rival contentions of the parties, the following issues have been framed:-
1) Whether plaintiff proves her joint possession of the schedule properties?
2) Does she prove her 1/5th share in the schedule properties?
3) Does she entitle for partition of her 1/5th share by metes and bounds?
4) Does she entitle for mesne profits as prayed?
5) Whether defendants prove that claim of plaintiff for a share in the self acquired property of her father is not maintainable?
12 O.S.No.6238/2015
6) Do they prove that plaintiff is not entitled for any share much less 1/5th share in any of the properties?
7) What order or decree?
6. To substantiate her claim the plaintiff has deposed before the Court as P.W.1 and she has produced 11 documents marked from Ex.P.1 to Ex.P.11. Per contra the defendant No.4 has been examined as D.W.1 and he has produced 9 documents which are marked from Ex.D.1 to Ex.D.9.
7. The counsel for plaintiff submitted written as well as oral arguments. Heard arguments from both sides. On hearing and on perusal of the relevant materials and evidence on record, my findings on the above issues are as follows:-
ISSUE No.1:- In the affirmative;
ISSUE No.2:- In the affirmative;
ISSUE No.3:- In the affirmative;
ISSUE No.4:- Kept open for adjudication during final decree proceedings ISSUE No.5:- In the negative;
ISSUE No.6:- In the negative;
ISSUE No.7:- As per final order, for the following:- 13 O.S.No.6238/2015
REASONS
8. ISSUES No.1 & 5:- Since both these issues are interconnected they are tried together to avoid repetition of facts. It is the specific case made out by the plaintiff that all the suit schedule properties are the joint family properties of herself and the defendant Nos.1 to 4. According to her claim her father late Subbarao was serving in Government and after 35 years of his service he retired and received his pensionary benefits. It is her further case that as regards schedule item No.2 landed properties, they are the ancestral properties which are situate in Andhra Pradesh.
9. The plaintiff has further stated that her father constructed house property in schedule 'A' property by deriving his salaried income as well as by deriving the income earned from the schedule item No.2 landed properties and though the site in schedule item No.1 property was mortgaged by him to the Government but he constructed a small house in the portion of the site by utilizing the income derived from the suit agricultural lands which were fallen to his share in the earlier family partition and thereafter he constructed house property in other portion of item No.1 site. Thus as per the claim of 14 O.S.No.6238/2015 the plaintiff all these suit schedule properties form part of their joint family properties and after the death of her father all have inherited these properties which are their ancestral and joint family properties. It is her further case that her father late Subbarao had constructed house property in item No.1 of the schedule much earlier to his retirement from his service and as such after his death even she is entitled to her legitimate equal 1/5th share along with defendant Nos.1 to 4.
10. Per contra the contesting defendant No.2 & 4 have categorically refuted the claim of the plaintiff that all the suit schedule properties are their ancestral or joint family properties. However the defendant No.3 has supported the claim of the plaintiff and he has also claimed his legitimate share in these properties. According to the defence of defendant Nos.2 & 4 and deceased defendant No.1 who is mother of the parties, suit schedule item No.1 property was the exclusive and self acquired property of late Subbarao which he had acquired out of his own earnings. It is their contention that in the family partition between late Subbarao and his brothers, schedule item No.2 landed properties had fallen to his share and thereafter as he was well educated and a 15 O.S.No.6238/2015 Govt. servant, the schedule item No.1 site was allotted to him recognizing his service to the Government in the year 1961 and as such this property was his exclusive property.
11. It is categorically denied by these defendants that the said Subbarao had acquired schedule item No.1 site and constructed house properties therein by utilizing the income earned from schedule item No.2 landed properties as claimed by the plaintiff. On the other hand it is contended by these defendants that in the year 1965 late Subbarao obtained licence from Corporation and constructed a house in the said site by borrowing loan by mortgaging the said site and as such he has acquired this property by utilizing his money saved from his salary and as such it was his independent property none of the family members has right of inheritance. It is further contended by these defendants that subsequent to the retirement of late Subbarao in the year 1978 he received lumpsum service benefits in the form of gratuity, PF, insurance, etc., and in the year 1979 he constructed remaining portion of item no.1 site and as such it is his independent property.
16 O.S.No.6238/2015
12. It is further relevant to note that the contesting defendant Nos.1,2 & 4 have also set up a WILL dated 17.02.2000 allegedly executed by late Subbarao. The certified copy of the same is placed before the Court which is marked at Ex.D.5. According to their defence, late Subbarao when he was hale and healthy, during his lifetime he executed this WILL thereby bequeathing schedule item no.1 property in favour of defendant Nos.2 & 4 and also recited in the said WILL that all the children would get their legitimate share in the suit item No.2 landed properties. Thus the defendant Nos.1,2 & 4 have specifically urged that since under this WILL schedule item No.1 property has been exclusively bequeathed in their favour, the plaintiff has no legal right to claim share in this property. However the plaintiff has seriously disputed the genuineness and correctness of this WILL.
13. According to the allegation of the plaintiff, her father late Subbarao had never intended to bequeath schedule item No.1 property in the name of these defendants at any point of time and as such defendant Nos.2 & 4 have created and concocted this Ex.D.5 WILL in order to deprive the plaintiff and other sharers of claiming their legitimate share in this property. In view of 17 O.S.No.6238/2015 these rival contentions of the parties and in view of the specific contention raised by defendant Nos.1,2 & 4 basing their defence on Ex.D.5- WILL now it is to be seen whether suit item No.1 property still assumes the character of joint family properties as per the claim of plaintiff and defendant No.3 or whether this property is no longer the joint family property between the parties in view of execution of Ex.D.5 by deceased Subbarao in favour of defendant Nos.2 & 4.
14. In order to prove her case the plaintiff by deposing herself before the Court as P.W.1, has produced 11 documents marked from Ex.P.1 to Ex.P.11. On the other hand the contesting defendant No.4 has deposed before the Court and he also relied on 9 documents marked from Ex.D.1 to Ex.D.9. As regards Ex.P.1, it is the khatha certificate pertaining to suit item No.1 property which is still standing in the name of deceased Subbarao. As regards Ex.P.2, it is the khatha extract pertaining to this property which once again stands in his name. As regards Ex.P.3, it is the tax paid receipt pertaining to the said property which once again stands in the name of the deceased. Ex.P.4 & Ex.P.5 are the earlier khatha extracts which are also standing in the name of late Subbarao. 18 O.S.No.6238/2015
15. As regards Ex.P.6, it is once again the khatha extract of schedule item No.2 properties which are also still standing in the name of the deceased. Ex.P.7 is the death extract of late Subbarao. As regards Ex.P.8, it is the genealogical tree furnished by P.W.1 which is not in dispute since the relationship inter-se the parties has not been denied or disputed by the defendants. As regards Ex.P.9, it is the copy of legal notice issued by the P.W.1 to the defendant Nos.1,2 & 4. It is to be noted that even defendant No.3 had joined P.W.1 in issuing this notice. As regards Ex.P.10, it is the reply issued by the defendant Nos.1, 2 & 4 to the said legal notice issued by P.W.1 and defendant No.3. As regards Ex.P.11, it is the postal AD slip for having issued the said legal notice to the contesting defendants.
16. As regards the documentary evidence relied on by the contesting defendant Nos.1,2 & 4, they include the copy of legal notice at Ex.D.1 which was issued by the present P.W.1 in the year 2004 to her father late Subbarao and the present defendant Nos.2 to 4. Ex.D.2 is the reply issued by deceased Subbarao and defendant Nos.2 to 4 to the said legal notice at Ex.D.1. As regards Ex.D.3, it is the same legal notice which was issued by 19 O.S.No.6238/2015 P.W.1 which is marked at Ex.P.9. Ex.D.4 is the same reply notice issued to P.W.1 which is marked at Ex.P.10. As regards Ex.D.5, it is the disputed WILL relied on by D.W.1. Ex.D.6 is allotment order of the Government dated 02.12.1960 issued in the name of late Subbarao evidencing the allotment of the schedule item No.1 property in his name. Ex.D.7 is the order dated 17.01.1966 issued by the Director of Treasuries with respect to schedule item No.1 property. As regards Ex.D.8 it is the original partition deed entered into between late Subbarao and his brothers. As regards Ex.D.9, it is the reconveyance deed dated 17.01.1980 under which the schedule item No.1 property was reconveyed to deceased Subbarao after it was mortgaged by him for obtaining house building advances.
17. In the backdrop of the above oral and documentary evidence placed before the Court by both the parties now it is to be seen whether the plaintiff could be held entitled to claim her 1/5th share in all the suit schedule properties. At the same time equal burden is cast on D.W.1 to show as to how P.W.1 is excluded from seeking partition in item No.1 property in view of the WILL being executed by late Subbarao excluding her. As 20 O.S.No.6238/2015 regards schedule item No.2 properties, there is no dispute between the parties that these landed properties are the ancestral properties which have been fallen to the share of deceased Subbarao in the earlier family partition. Thus the dispute is only with regard to schedule item No.1 property. As discussed supra, D.W.1 has specifically contended that this property was the self- acquired property of his father Subbarao and therefore he had every legal right to dispose of the said property as per his wish and will and accordingly he has bequeathed the schedule property in his name and in the name of defendant No.2 under Ex.D.5.
18. Per contra P.W.1 has alleged that Ex.D5 WILL cannot be relied on for two reasons firstly, that it has come into existence under suspicious circumstances as deceased Subbarao had never intended to execute this WILL nor he was in a sound disposing state of mind to execute this WILL freely and as such it was the outcome of concoction and fraudulent deeds of D.W.1 and the defendant No.2. The second reason assigned by P.W.1 to discredit Ex.D.5 is that deceased Subbarao had no legal right to bequeath schedule item No.1 property under Ex.D.5 since this property was acquired not only out of 21 O.S.No.6238/2015 his service income but also by utilizing the income earned by the suit landed properties and as such this property also forms part of their joint family property. In view of this serious dispute raised by P.W.1 with regard to credibility of Ex.D.5, heavy burden was cast on D.W.1 and defendant No.2 to prove due execution of this WILL.
19. As rightly pointed out by the learned counsel for plaintiff, except producing Ex.D.5 before the Court and his oral testimony, D.W.1 has not placed before the Court any other supporting evidence to prove Ex.D.5 or its execution as required to be proved U/S 63 to 69 of Indian Evidence Act. It is material to note that we have no evidence of any independent witnesses, much less that of any attesting witnesses of this WILL except the solitary statement of D.W.1. Rightly the counsel for the plaintiff has argued that this WILL needs no consideration since it has not been proved by D.W.1 in accordance with law.
20. The counsel for the plaintiff in order to nullify the credibility of Ex.D5, has sought to rely on a decision reported in Jhadu (dead) through LRs and others v/s Virendra Bahadur Singh and others in AIR 2020 CHHATTISGARH 130 wherein the Hon'ble High Court of Chhattisgarh while dealing with an identical issue, has 22 O.S.No.6238/2015 reiterated the material aspect as to the proof of evidence and held that "a certified copy of a WILL cannot be relied on in the absence of original where neither foundation is laid for leading secondary evidence, nor the said WILL bears the signatures of attesting witnesses". With due regards to the principles laid down in this decision, the same will have to be applied to the present case for the simple reason that even the WILL relied on by D.W.1 in the instant case at Ex.D.5 is not an original document, but it is a certified copy of the disputed WILL.
21. No doubt Ex.D5 has been marked before the Court, but it is significant to note that D.W.1 himself in his cross-examination has categorically admitted that the original WILL is in his custody and that he has no impediment to produce the same. This material piece of admission of D.W.1 is found in para-4 of his cross- examination dated 21.01.2020 which is reduced thus:-
"Original WILL is with me. I have not produced the original WILL. There is no any impediment to produce original WILL in this Court".
The above statement of D.W.1 clearly casts serious cloud about the genuineness of the Ex.D.5. No doubt a 23 O.S.No.6238/2015 certified copy of a document can be admitted into evidence as secondary evidence, but such secondary evidence cannot be accepted nor relied on where the party admits to possess the original of such document. If really D.W.1 is in the custody of original WILL and where he has no difficulty to produce the same before the Court, then non-production of such material document before the Court wound once again raise suspicion about the bonafides of his defence.
22. Furthermore, as rightly argued by the plaintiff's counsel, Ex.D.5 has not been proved by D.W.1 as required to be proved under law. There are catena of decisions in this regard as to how a WILL needs to be proved U/S 63 to 69 of Evidence Act. The first decision on which reliance could be placed is reported in Smt.Giddamma and another v/s Smt.Venkatamma (dead) by LRs and others in ILR 2009 KARNATAKA 992 wherein it has been clearly held as under:-
Indian Evidence Act, Secs. 67 to 69--Section 68--Proof of execution of the document--Mandatory requirement--Sec.69--proof of a document where no attesting witness found--Held, Sec. 68 of the Act lays down the mode of proof of a document. The mandatory requirement is that, at least one of the attesting witnesses should be examined. Sec. 69 provides for proof of a document where no attesting witness is found. The provision of Sec.69 contemplates 24 O.S.No.6238/2015 that, the handwriting of at least one attesting witness and the signature of the person executing the document is required to be identified and proved through the witnesses. The proof of handwriting and/or the signature of a scribe is not the stipulation u/s 69 of the Act--On facts, held, the evidence of DW3, merely identifying the handwriting and also the signature of his father, the scribe of the Will Ex.D1, is of no legal consequence and does not meet the stipulation u/s 69.
23. The recent decision on the point is reiterated in Abdul Wahab and others v/s Rahamathunnissa since deceased by LRs and others in 2021(2) AKR 679 wherein once again it has been reiterated that "in order to prove the execution of WILL as per Sections 67 to 71 of the Evidence Act, at least one of the attesting witnesses need to be examined by the beneficiary".
24. The proposition of law laid down even in the above cited decision would make it abundantly clear that unless and until the beneficiary makes available before the Court all the required evidence in order to prove the disputed WILL, the same cannot be accepted nor his interested version could be relied on. It is also not the defence of D.W.1 nor his statement that none of the attesting witnesses to Ex.D.1 are available for evidence nor it is his contention that inspite of exercise of due diligence by him he could not secure the material 25 O.S.No.6238/2015 attesting witnesses. On the contrary if we peruse Ex.D.5 it is clearly revealed that all the concerned parties such as the scribe, the attesting witnesses, the testator, etc., have allegedly subscribed their signatures on this WILL.
Under such circumstances a duty was cast on D.W.1 to produce before the Court original WILL which he himself claims to be in possession of the same. No effort is also made by him to summon and examine the Sub-Registrar before whom this WILL alleged to have been registered. Under such circumstances in the absence of any satisfactory explanation in this regard from D.W.1, Ex.D.5 cannot be relied upon.
25. However the learned defence counsel has urged with some vehemence that since Ex.D.5 is a registered document, it raises presumption regarding its due execution. This line of argument canvassed by the defence counsel holds no substance for the simple reason that the mode of proof of a WILL as laid down in the Indian Evidence Act and in the various authorities of the Hon'ble Supreme Court as well as the High Court is entirely different from the mode of proving any other deeds. The law requires that in order to prove such WILL the examination of at least one of the attesting witnesses 26 O.S.No.6238/2015 is mandatory and in the absence of such evidence at least the beneficiary must examine the scribe who claims have witnessed the testator executing such WILL in his presence with his free wish and will. None of these mandatory requirements have been complied with by D.W.1 in the instant case in order to prove Ex.D.5.
26. It is further significant to note that D.W.1 has also unequivocally admitted in his cross-examination that as per Ex.D.5-WILL no revenue records have been changed which once again indicates that this WILL has never been acted upon by the parties. In para-5 of his cross-examination dated 21.01.2020 D.W.1 has clearly admitted this aspect as under:-
"On the basis of WILL khathas were not changed in the name of beneficiary. I do not know whether WILL was accepted by the plaintiff or not because this fact known to the father only".
The above statement of D.W.1 once again clearly nullifies his defence that under Ex.D.5 schedule item No.1 property was voluntarily bequeathed by his father in his favour and in favour of defendant No.2. On the contrary this evidence clearly probablises the claim of P.W.1 that this WILL was never acted upon by the parties. This statement of D.W.1 is further fortified by the available 27 O.S.No.6238/2015 revenue records which are produced before the Court. If we peruse Ex.P.1 to Ex.P.3 khatha extracts of 2014 still the name of the deceased Subbarao has been entered even after his death, because as per Ex.P.7 death extract of Subbarao it is revealed that he died on 05.07.2014. All these documents are subsequent to his death. Under such circumstances there would not have been any impediment to DW1 or to the second defendant to get the Khata changed in their names on the basis of Ex.D5.
27. Moreover even in Ex.D.2 which was a reply notice issued by deceased Subbarao in response to the legal notice issued by P.W.1 as per Ex.D.1 we do not find any mention with regard to the alleged execution of Ex.D.5 by late Subbarao. If we peruse this document and even after the plain reading of this reply notice nowhere he has uttered any single word that he has executed any such disputed WILL as per Ex.D.5 in the year 2000 so as to nullify the claim of P.W.1 over the suit item No.1 property. All that has been contended by late Subbarao in Ex.D.2 was that he was a Government servant and had completed his 35 years of service and he has also made a reference about the marriages of his children including 28 O.S.No.6238/2015 the plaintiff and his denial with regard to joint character of schedule item No.1 property etc.
28. Late Subbarao in Ex.D2 has also reiterated that schedule item No.1 property is his self acquired property which he has acquired without the aid of the joint family nucleus and as such P.W.1 cannot have any right over this property. Therefore if really as per the defence of D.W.1 late Subbarao had executed Ex.D.5- WILL in the year 2000, certainly he would have specifically mentioned about the same in his reply notice which was issued in the year 2004. This is one such circumstance which would negative the defence of D.W.1 that his father had executed Ex.D.5- WILL bequeathing item No.1 property in his favour. On the contrary this fact once again probablises the allegation of P.W.1 that Ex.D.5 has come into existence under suspicious circumstances. All these suspicious circumstances will have to be cleared by D.W.1 in order to prove the alleged execution of WILL by his father.
29. Though issue No.5 does not directly cast burden on D.W.1 to prove the execution of the disputed WILL, but nevertheless under this issue certainly he is required to prove as to how his father had legal right to 29 O.S.No.6238/2015 deal with suit item No.1 property as his self acquired property and consequently how he had executed Ex.D.5. Therefore this burden has not been discharged by D.W.1 in order to rely on Ex.D.5. Consequently it is to be held that this suit item No.1 property was not at all bequeathed by late Subbarao as per Ex.D.5 in favour of the defendant No.2 and D.W.1. If that possibility is ruled out then the only inference which has to be drawn is that after the death of Subbarao all his properties including schedule item No.1 property will have to be divided amongst his LRs as per the General Rules of Succession. In this regard I would like to lay my hands on a Division Bench decision of the Hon'ble High Court reported in K. Madhavaraja Nayak v/s Sridhar Nayak and others in 2009(2) KCCR 1206 (DB) wherein the Hon'ble High Court of Karnataka has elaborately dealt with various modes of Hindu Law of Partition with reference to coparcenery property, ancestral property and separate property. It would be relevant to extract the said proposition of law laid down by the Hon'ble High Court as under:-
A. Hindu Law property - Coparcenary property, ancestral property and separate property--Availability for division in partition suit--Discussed.30 O.S.No.6238/2015
In this context, it would be relevant to note that the property under Hindu Law can be classified under two heads:
(1) Coparcenary property and (2) separate property.
Coparcenary property is again divisible into (i) ancestral property and (ii) joint family property which is not ancestral. This latter kind of the property consists of property acquired with the aid of ancestral property and property acquired by individual coparceners without such aid, but treated by them as property of the whole family. Joint family property is qualified in a twofold manner viz., it must be a joint family property and it must also be ancestral. It is obvious that there must have been a nucleus of joint family property before an ancestral joint family property can come into existence because the word ancestral connotes descent and hence, preexistence. Where there is ancestral joint family property, every member of the family acquires in it a right by birth which cannot be defeated by individual alienation or disposition of any kind except under certain peculiar circumstances. This is equally true of joint family property, where a sufficient nucleus of the property in the possession of the members of a joint family has come to them from a paternal ancestor, the presumption is that the whole property is ancestral and any member alleging that it is not, will have to prove his selfacquisition. Similarly, where property is admitted or proved to be joint family property, but if the same has been treated by them as the property of the whole family, it is subject to exactly the same legal incidents as the ancestral joint family property.
Thus, coparcenery property means and includes (1) ancestral property, (2) acquisitions made by the coparceners with the help of ancestral property, (3) joint acquisitions of the coparceners even without such help provided there was 31 O.S.No.6238/2015 no proof of intention on their part that the property should not be treated as joint family property and (3) separate property of the coparceners thrown into the common stock. The term "ancestral property" has a special meaning in Hindu Law. That means only such property as is inherited by a male from father, father's father and father's father's father and such inheritor's son, son's son and son's son's son get an interest in it by birth. Hence, unless there is a nucleus of ancestral property with the aid of which the acquisitions are made, the acquisitions cannot be included within the concept of coparcenary property available for partition between the members of the joint family. The coparcenary property is the property held by a coparcener absolutely and free of all claims from the rest of the coparceners which is known as separate or selfacquired property. Separate property of a person is property in respect of which other coparcenars can claim no right and on the death of the coparcener, the same is succeeded to not by survivorship but by inheritance, either testamentary or by intestate succession.
30. By applying the principles laid down in the above cited decision, even in the instant case as D.W.1 has utterly failed to prove Ex.D.5 or the alleged bequest made by his father with respect to the schedule item No.1 property then it has to be construed that even though deceased Subbarao during his lifetime had claimed this property as his self acquired property or absolute property but in the absence of proof with due execution of Ex.D.5 after his death even this property will 32 O.S.No.6238/2015 have to be made available for partition amongst his legal heirs. Though even in the above cited decision it has been well settled that unless there is a nucleus of ancestral property with the aid of which the acquisitions are made the acquisitions cannot be included within the concept of coparcenery property available for partition between the members of the joint family and that the coparcenery property is the property held by a coparcener absolutely which is known as separate or self acquired property, but in the absence of any valid proof or evidence with regard to any testamentary disposition of such self acquired property, even such property will have to be made available for partition and ultimately the Hon'ble High Court has held that the separate property of a person is property in respect of which other coparcenars can claim no right and on the death of coparcener the same is succeeded to not by survivorship but by inheritance either testamentary or by intestate succession.
31. The above proposition of law could aptly extended to the facts on hand, because even though deceased Subbarao was a Government servant and had his own independent source of income and even though 33 O.S.No.6238/2015 schedule item No.1 site was allotted in his independent name and even if it is presumed that this property during his lifetime was enjoyed by him as his separate property, but since D.W.1 has failed to prove the alleged testamentary disposition of this property by his father as per Ex.D.5, now after his death even this schedule item no.1 property will have to be inherited or succeeded to by all his LRs by inheritance since now it is proved that this succession is an intestate succession.
32. Therefore as rightly pointed out by the plaintiff's counsel, because D.W.1 has miserably failed to prove Ex.D.5, the only inference which has to be drawn is that all the legal heirs of deceased Subbarao are entitled to intestate succession even with respect to this property. Consequently it is to be held that even though P.W.1 is a married daughter residing in her matrimonial home, but as she is also proved to be entitled to succeed to schedule properties she also become one of the co- owners of the suit schedule properties along with defendant Nos.2 to 4 and consequently she would also hold joint constructive possession of these properties. Therefore both these issues will have to be answered accordingly thereby answering issue No.1 in her favour in 34 O.S.No.6238/2015 the affirmative whereas issue No.5 is answered against defendants in the negative.
33. ISSUE Nos.2, 3 & 6:- Since all these issues are interconnected to avoid repetition of facts they are tried together. In view of the findings rendered on the preceding issues, now it is proved that along with schedule item No.2 properties even item No.1 property of the plaint schedule is available for partition after the death of the father of the parties. The relationship inter- se the parties is also not in dispute. When D.W.1 has failed to prove that under Ex.D.5 schedule item No.1 property has been excluded from the scheme of partition then both these properties are to be divided by way of succession amongst all the sharers.
34. Now in view of the settled position of law laid down by the Hon'ble Apex Court in Vinitha Sharma v/s Rakesh Sharma and others in 2020(2) KCCR 1993 (SC) now it has been well settled that a daughter can successfully set up a claim for partition against her brothers and relatives and get her share culled out. It has ultimately affirmed equal rights of daughters to coparcenery property. More significantly the Hon'ble Apex Court has clarified that irrespective of a coparcener 35 O.S.No.6238/2015 father being alive or not on or before the Hindu Succession (Amended) Act 2005, a daughter would be entitled to a share in the coparcenery property in the same manner as a son simply by virtue of (i) her birth and (ii) her being alive as on the date of coming into force of 2005 Amended Act. In view of the above said position of law now it cannot be said that the plaintiff is disentitled to claim her equal share even in the self acquired property of her father in the absence of any testamentary disposition after the death of the father. Therefore the defendant Nos.2 to 4 are now estopped from denying her share even in schedule item No.1 property.
35. As regards the quantum of share to be carved out amongst the sharers, no doubt initially the plaintiff had claimed 1/5th share in the suit schedule properties along with defendant Nos.1 to 4, but during the pendency of the proceeding defendant No.1 who is their mother died and thereafter now shares need to be modified. Therefore as rightly claimed by defendant No.2 now as the surviving sharers are the plaintiff and defendant Nos.2 to 4, each are entitled to 1/4th share in the suit schedule properties. Hence with this modification these 36 O.S.No.6238/2015 issues are accordingly answered thereby answering issue Nos.2 & 3 in favour of the plaintiff in the affirmative and issue No.6 against the defendants in negative.
36. ISSUE No.4:- Though P.W.1 has also claimed mesne profits from the defendants for their possession over the schedule properties in exclusion of her possession for all these years, but this claim for mesne profits could be worked out and considered during the final decree proceeding after a detailed enquiry. Therefore the issue regarding mesne profits will have to be kept open for adjudication during final decree proceedings and accordingly this issue is answered.
37. ISSUE No.7:- In view of the findings given on the above issues and in the facts and circumstances of the case having regard to the close relationship inter-se the parties they are directed to bear their own cost of litigation. In the result, this Court proceeds to pass the following:-
ORDER The suit filed by the plaintiff against the defendants for the relief of partition and separate possession with 37 O.S.No.6238/2015 respect to suit schedule item Nos.1 & 2 properties is hereby decreed.
The plaintiff and defendant Nos.2 to 4 are hereby held entitled to their respective 1/4th share each in the suit schedule item Nos.1 & 2 properties.
However the claim with regard to
mesne profit is hereby kept open for
adjudication during final decree
proceeding.
Parties to bear their own costs.
Draw preliminary decree
accordingly.
(Dictated to the Judgment Writer, transcribed by him on Computer, carried out corrections in the Computer, printout taken and then pronounced by me in the Open Court on this the 23rd day of August, 2021) (Smt.SAVITRI SHIVAPUTTA KUJJI) X Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : T.S. Gayathri List of documents exhibited for plaintiff:
Ex.P1 : Khatha certificate Ex.P2 : Khatha extract 38 O.S.No.6238/2015 Ex.P3 : Tax paid receipt Ex.P4 : Khatha extract Ex.P5 : Khatha extract Ex.P5(a) : Translation copy Ex.P6 : Khatha extract Ex.P6(a) & (b) : Translation copies Ex.P7 : Death certificate Ex.P8 : Family tree Ex.P9 : Copy of legal notice Ex.P10 : Reply Ex.P11 : Postal acknowledgement List of witnesses examined for the defendants:-
D.W.1 : T.S. Raghavendra
List of documents got exhibited for the
defendants:-
Ex.D1: Copy of legal notice
Ex.D2: Reply notice
Ex.D3: Legal notice
Ex.D4: Reply notice
Ex.D5:Certified copy of Will
Ex.D5(a) : Typed copy
Ex.D6 : Allotment letter
Ex.D7 : House building advance letter dt:17.01.1966
Ex.D8 : Partition deed
Ex.D8(a): Typed copy
Ex.D9 : Form of re-conveyance dt:17.01.1980
X Addl. City Civil & Sessions Judge,
Bangalore.