Bangalore District Court
Shyamala K vs Nagamanikya K L on 2 April, 2026
KABC010082482016
IN THE COURT OF V ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU
Dated this the 2nd Day of April 2026
Present : SRI.VEDAMOORTHY B.S., B.A.(L)., LL.B.,
XXXI Addl. City Civil & Sessions Judge, Bengaluru (CCH-14)
C/c V Addl. City Civil & Sessions Judge, Bengaluru (CCH-13)
O.S.No.2739/2016
PLAINTIFF : Smt.K.Shyamala,
Aged about 42 years,
W/o Sri.T.R.Venkatesha Babu,
D/o late L.Krishnaiah Setty,
Residing at No.56/3, Ground Floor,
2nd Cross, Ganesha Block,
1st Main Road, Seshadripuram,
Bangalore - 560 020.
(By Sri.S.N.Bhat, Advocate)
V/s
DEFENDANTS : 1. Smt.L.K.Nagamanikya,
Since deceased by her LRs,
Defendant No.2 to 4 & plaintiff.
2. Sri.L.K.Nagaraj,
Aged about 39 years,
S/o late L.Krishnaiah Setty,
R/at No.62,
Middle School Road,
Vishweshwarapuram,
Bangalore - 560 004.
2 O.S.No.2739/2016
3. Smt.K.Chandrakumari,
Since deceased by her LRs
3(a). Sri.J.Guruvardhan,
Aged 34 years,
3(b). Sri.Taathvik Tejas,
Aged 28 years,
Both are sons of Sri.M.T.Jagannatha,
& Late K.Chandrakumari,
Residing at No.501, 4th Floor,
Siri Landmark Apartment,
Basement, Vishal Mega Mart
Uttarahalli Main Road,
Bangalore - 560 061.
4. Smt.L.K.Anuradha,
Aged about 47 years,
W/o Sri.Srinivas Gupta,
D/o Late L.Krishnaiah Setty,
Residing at Agaram Village - 563138
Mulbal Taluk, Kolar district.
(By Sri.B.M.Baliga, Advocate for
defendants No.1 and 2, Smt.Ganavi
M.K., Advocate for the 4 th defendant, the
3rd defendant - Exparte)
Date of institution of the suit. 04.04.2016
Partition & Separate
Nature of the suit
Possession
Date of the commencement of 04.04.2018
recording evidence
Date on which the Judgment 02.04.2026
was pronounced
3 O.S.No.2739/2016
Years Months Days
Total duration
09 11 29
(VEDAMOORTHY B.S.)
XXXI Addl. City Civil & Sessions Judge,
Bengaluru.
C/c V Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
The plaintiff has filed this suit against the defendants for partition and separate possession of her 1/15 th share in the suit schedule properties by metes and bounds and enquiry on mesne profits from the date of suit.
2. The brief facts of the case of the plaintiff are that she and defendants No.2 to 4 are the children of L.K.Krishnaiah Setty and Smt.Pancharathnamma. Smt.Pancharathnamma died in the year 1978. Thereafter, L.K.Krishnaiah Setty married the 1st defendant. They had no children. The suit schedule properties were originally acquired by L.K.Krishnaiah Setty during his life time out of his self earnings. L.K.Krishnaiah Setty died on 25.08.1991 leaving behind the plaintiff and the defendants, another son 4 O.S.No.2739/2016 K.Venkatesh Babu and a daughter Smt.Srilakshmi as his Class-I legal heirs. After his death, his Class-I legal heirs have partitioned the family properties through registered Partition Deed dated 27.09.2004. As per the said Partition Deed, the suit schedule properties were jointly allotted to the share of defendants No.1 and 2 and K.Venkatesh Babu. In the said partition, the daughters of L.K.Krishnaiah Setty, i.e., the plaintiff, defendants No.3 and 4 and Smt.Srilakshmi were allotted with money. The said amount was later paid by sale of family properties. After the partition, defendants No.1 and 2 and K.Venkatesh Babu were the joint owners of the suit schedule properties. They have entered into an Agreement of Sale with M/s Satantra, a Partnership Firm and Joint Development Agreement with M/s RNR Constructions. Under the said development scheme, defendants No.1 and 2 and K.Venkatesh Babu have jointly acquired the suit schedule item No.2 property. On 19.12.2004, K.Venkatesh Babu died leaving behind the plaintiff, defendants No.2 to 4 and Smt.Srilakshmi as Class-II legal heirs. As he had not married and his natural 5 O.S.No.2739/2016 mother predeceased him, the 1st defendant is not his legal heir of K.Venkatesh Babu. Therefore, she is not entitled for any share in the suit schedule properties. The plaintiff and defendants No.2 to 4 and Smt.Srilakshmi are entitled for equal share in the suit schedule properties. Smt.Srilakshmi by executing Release Deed dated 29.07.2015 has released her right, title and interest in the suit schedule properties in favour of defendants No.1 and 2. Therefore, the plaintiff has got 1/15th share in the suit schedule properties. Defendants No.1 and 2 are enjoying the suit schedule properties. They have let out 4 portions of the suit schedule Item No.1 property and the entire suit schedule Item No.2 property by calculating rent of Rs.1,50,000/-. When the plaintiff approached the defendant No.1 and 2 seeking her legitimate 1/15th share in the suit schedule properties, they have denied. On 17.02.2016, the plaintiff issued Legal Notices calling upon the defendants to effect partition of the suit schedule properties. The said Legal Notices were served on them. Defendants No.1 to 3 have issued Reply dated 10.02.2016 denying to effect partition of the suit schedule 6 O.S.No.2739/2016 properties. Hence, the plaintiff has filed the present suit.
3. After due service of summons to the defendants, the 3rd defendant has not appeared before this Court. Hence, she has placed exparte. Defendants No.1, 2 and 4 have appeared before this Court. Among them, defendants No.1 and 2 have filed their written statement. The 4 th defendant filed Memo stating that she is adopting the written statement of defendants No.1 and 2. During the pendency of the suit, the 1st defendant was reported as dead and the plaintiff and defendants No.2 to 4 are her legal heirs. The 3rd defendant is also reported as dead and her LRs are brought on record. They have neither appears nor filed their written statements. They were placed exparte. The 2 nd defendant has filed additional written statement.
4. In the written statement filed by defendants No.1 and 2, they have admitted the relationship, the dates of death of L.K.Krishnaiah Setty and Smt.Pancharathnamma and the Partition Deed executed on 27.09.2004 as averred in para No.3 and 4 of the plaint. They have also admitted that the 7 O.S.No.2739/2016 plaintiff issued the Legal Notice to the defendants for which, defendants No.1 and 2 have replied to it. They have denied the right of share of the plaintiff in the suit schedule properties. Their defences are that as per the Partition Deed dated 27.09.2004, the suit schedule properties were jointly allotted to the share of defendants No.1 and 2 and K.Venkatesh Babu. L.K.Krishnaiah Setty purchased the property bearing No.120, K.P.Agrahara Division, No.36, Bangalore. It was sold jointly by the plaintiff and the defendants after the death of L.K.Krishnaiah Setty to perform the marriage of the plaintiff and the 4 th defendant. Defendants No.1 and 2 have availed loan to perform their marriages. The 3rd defendant has filed suit in O.S.No.7828/2003 before this Court for partition of the properties left behind L.K.Krishnaiah Setty. The said suit was compromised between the parties. As per the compromise, the plaintiff and the defendants entered into registered Partition Deed dated 27.09.2004. Under the said partition, it was agreed that the 1st defendant being the widow of L.K.Krishnaiah Setty, K.Venkatesh Babu being the 8 O.S.No.2739/2016 elder son of L.K.Krishnaiah Setty who was a chronic patient of paranoid schizophrenia and who remained as a bachelor and the 2nd defendant being the son of L.K.Krishnaiah Setty who was taking care of the 1st defendant and K.Venkatesh Babu would jointly take the suit schedule properties. The plaintiff and defendants No.3 and 4 and Smt.Srilakshmi were allotted their respective shares as per the said Partition Deed. Apart from the money given under the Partition Deed, they were also given with Rs.5,50,000/- each in cash by defendants No.1 and 2. The suit schedule Item No.2 property was purchased by L.K.Krishnaiah Setty. After his death, the plaintiff and the defendants have entered into a Joint Development Agreement with M/s RNR Constructions. As per the said Joint Development Agreement, the builder agreed to give three flats to the legal heirs of L.K.Krishnaiah Setty. The 2 nd defendant putting a lot of efforts to get the said residential apartment constructed and to obtain their share from the builder. At the time of entering into Partition Deed dated 27.09.2004, the plaintiff and the defendants have agreed that the flats 9 O.S.No.2739/2016 which fell to their share as per the Joint Development Agreement would be sold and the sale proceeds would be distributed among the plaintiff and defendants No.3 and 4. Accordingly, the sale proceeds were distributed among them. Therefore, the suit schedule properties are remained in the joint possession of defendants No.1 and 2 and K.Venkatesh Babu. Venkatesh Babu was unmarried. He died on 19.12.2004. His natural mother predeceased him. Since the plaintiff and defendants No.3 and 4 have given up their claim over the suit schedule properties, they are estopped from claiming any share in the suit schedule properties. Even after partition, defendants No.1 and 2 and K.Venkatesh Babu remained as joint family member and held the suit schedule properties jointly. Therefore, the share of K.Venkatesh Babu in the suit schedule properties would devolve by survivorship as per Hindu Succession Act. For the above reasons, the plaintiff and defendants No.3 and 4 are not entitled for any share in the suit schedule properties. Smt.Srilakshmi executed a registered Release Deed dated 29.07.2015 releasing her share in the suit 10 O.S.No.2739/2016 schedule properties. Hence prayed to dismiss the suit.
5. In the additional written statement filed by the 2 nd defendant, it is contended that the 1 st defendant out of her natural love and affection towards the 2 nd defendant has executed a registered Will, bequeathing her share in the suit schedule properties in favour of the 2 nd defendant. Therefore, the 2nd defendant alone is entitled for the suit schedule properties. Hence, prayed to dismiss the suit.
6. Based on the above pleadings of the parties, the following issues and the additional issues are framed:
1. Whether the plaintiff proves that suit schedule properties are joint family properties and they are in joint possession of the suit schedule properties ?
2. Whether the plaintiff proves that she is entitled for the partition and separate possession of their 1/15th share in the suit schedule properties ?
3. Whether the defendants prove that joint family properties are already partitioned 11 O.S.No.2739/2016 under the registered Partition Deed dated 27.09.2004 between plaintiff and defendants ?
4. Whether the defendants prove that Srilakshmi executed the Release Deed dated 29.07.2015 releasing her share in the property ?
5. Whether the plaintiff is entitled for mesne profits sought for ?
6. Whether the plaintiff is entitled for suit reliefs sought for ?
7. What order or decree ?
ADDITIONAL ISSUE
1. Whether defendant No.2 proves that defendant No.1 had executed a registered Will by bequeathed all her share in the schedule immovable properties in his favour ?
7. To prove the above issues and the additional issue, the plaintiff has produced her oral evidences as PW1. She has also produced the documentary evidences Ex.P1 to Ex.P14. The 2nd defendant has produced his oral evidences as DW1. 12 O.S.No.2739/2016 He has produced the documentary evidences Ex.D1 and Ex.D8. The 2nd defendant has produced the oral evidences of one T.S.Satish as DW2. The 4 th defendant has produced her oral evidences as DW3. She has produced the documentary evidences Ex.D10.
8. Heard the arguments of the learned Counsels for the plaintiff and the 2nd defendant.
9. The learned Counsel for the plaintiff has relied the judgment of the Hon'ble Supreme Court in the case between Shyam Narayan Prasad V/s Krishna Prasad & others [(2018) 7 SCC 646].
10. The learned Counsel for the 2 nd defendant has relied the following judgments :-
i. The judgment of the Hon'ble Supreme Court in the case between Vineeta Sharma V/s Rakesh Sharma & others (AIR 2020 SC 3717).
ii. The judgment of the Hon'ble Supreme Court in the case between Vellikannu V/s R.Singaperumal & another [(2005) 6 SCC 13 O.S.No.2739/2016 622].
iii. The judgment of the Hon'ble Supreme Court in the case between H.Venkatachala Iyengar V/s B.N.Thimmajamma & others (AIR 1959 SC 443).
iv. The order of the Hon'ble High Court of Karnataka in the case Hemkunwar Bai V/s Sumersingh & others (Civil Appeal No.8827/2011).
v. The judgment of the Hon'ble Supreme Court in the case between Selvamani V/s State represented by the Inspector of Police [(2024) 19 SCC 112].
11. Perused the materials availed on record.
12. My answers to the above issues are as follows:
Issue No.1 : Does not arise to answer,
Issue No.2 : In the Affirmative,
Issue No.3 : Does not arise to answer,
Issue No.4 : Does not arise to answer,
Issue No.5 : In the Negative,
Issue No.6 : Partly in the Affirmative,
Addl. Issue No.1 : In the Negative,
Issue No.7 : As per final order for the
following;
14 O.S.No.2739/2016
REASONS
13. ISSUES No.1, 3 AND 4 :- On perusal of the entire plaint averments, it appears that there are no pleadings by the plaintiff that the suit schedule properties are the joint family properties of the plaintiff and the defendants. It is admitted fact that after the death of L.K.Krishnaiah Setty, the suit schedule properties were partitioned through registered Partition Deed dated 27.09.2004 and under the said partition, the suit schedule properties were allotted jointly in favour of defendants No.1 and 2 and K.Venkatesh Babu and Smt.Srilakshmi executed the Release Deed dated 29.07.2015 releasing her share in the suit schedule properties in favour of defendants No.1 and 2. Further, there are no pleadings by the plaintiff that she and defendants are joint possession and enjoyment of the suit schedule properties. In view of the same, answering issues No.1, 3 and 4 does not arise. Hence, I answer Issues No.1, 3 and 4 accordingly.
14. ISSUE No.2 :- The burden to prove this issue is upon the plaintiff and additional issue No.1 is upon the 2 nd 15 O.S.No.2739/2016 defendant. To prove issue No.1, the plaintiff has produced her oral evidences as PW1. She filed her affidavit by way of examination-in-chief. In the said affidavit, she has reiterated the plaint averments. In support of her oral evidences, she has also produced the documentary evidences Ex.P1 to Ex.P14. Among them, Ex.P1 is the Genealogical Tree of L.Krishnaiah Setty by way of affidavit of the plaintiff, Ex.P2 is the certified copy of the Partition Deed dated 27.09.2004, Ex.P3 is the certified copy of the Deed of Release dated 29.07.2015 executed by Smt.Srilakshmi in favour of defendants No.1 and 2, Ex.P4 is the office copy of the Legal Notice issued by the plaintiff to the defendants, Ex.P5 is the Postal Receipts, Ex.P6 to Ex.P9 are the Postal Acknowledgments, Ex.P10 is the Reply issued by defendants No.1, 2 and 4, Ex.P11 and Ex.P13 are the Khatha Certificates and Ex.P12 and Ex.P14 are the Khatha Extracts in respect of the suit schedule properties.
15. Per contra, the 2nd defendant has produced his oral evidences as DW1. He has filed his affidavit by way of 16 O.S.No.2739/2016 examination-in-chief. The averments made in the said affidavit are reiteration of the facts averred in the written statement. In the said affidavit, he has reiterated the written statement averments. In support of his oral evidences, he has produced the documentary evidences Ex.D1 to Ex.D8. Among them, Ex.D1 is the Letter dated 02.02.2004 issued by M/s RNR Constructions to the 2nd defendant, Ex.D2 and Ex.D3 are the Receipts dated 03.03.2004 issued by M/s RNR Constructions, Ex.D4 is the Case Summary and Discharge Record of Venkatesh Babu, Ex.D5 is the Mortgage Discharge Deed dated 26.10.2005, Ex.D6 is the Receipt dated 08.12.2005, Ex.D7 is the certified copy of the Sale Deed dated 06.09.2003 and Ex.D8 is the Photographs and Ex.D8(a) is the Negative.
16. The 4th defendant has produced her oral evidences as DW2. She has filed her affidavit by way of examination-in- chief. In the said affidavit, she has reiterated the facts averred in the written statement of the 2 nd defendant. She has produced the Death Certificate of the 1 st defendant as 17 O.S.No.2739/2016 Ex.D10.
17. On perusal of the oral evidences of PW1, DW1 and DW3, it appears that the plaintiff, defendants No.2 to 4, K.Venkatesh Babu and Smt.Srilakshmi are the children of L.K.Krishnaiah Setty and Smt.Pancharathnamma; the 1 st defendant is the second wife of L.K.Krishnaiah Setty; the 1 st defendant had no children; L.K.Krishnaiah Setty purchased the suit schedule properties through registered Sale Deeds dated 02.07.1973 and 23.03.1967 respectively; L.K.Krishnaiah Setty died on 25.08.1991 leaving behind the plaintiff, defendants, K.Venkatesh Babu and Smt.Srilakshmi as his Class-I legal heirs; after the death of L.K.Krishnaiah Setty, they have partition the family properties as per Partition Deed dated 27.09.2004 in which, the suit schedule properties were allotted to the shares of defendants No.1 and 2 and K.Venkatesh Babu; defendants No.3 and 4 and Smt.Srilakshmi were allotted through money and which was paid on them; K.Venkatesh Babu died bachelor on 19.12.2004 and Smt.Srilakshmi executed a Release Deed 18 O.S.No.2739/2016 dated 29.07.2015 releasing her right, title and interest in the suit schedule properties in favour of defendants No.1 and 2 are admitted facts. It is also admitted fact that the plaintiff issued the Legal Notices dated 17.02.2016 to the defendants for which, defendants No.1, 2 and 4 have issued Reply dated 08.03.2016 are admitted facts. Ex.P1 to Ex.P10 are the documents with regard to the above admitted facts. Therefore, they need not be appreciated much.
18. The claim of the share of the plaintiff on the suit schedule properties as Class-II legal heir of the deceased K.Venkatesh Babu. PW1 during her cross-examination has admitted that she filed the suit claiming her share in the suit schedule properties out of the share of her elder brother. PW1 admitted during her cross-examination that as per Ex.P2, she has received her share in the properties of her father; she signed it admitting its contents and as per Ex.P2, she has no right over the suit schedule properties. DW1 and DW2 in their examination-in-chief have deposed that the plaintiff and other three daughters were also given Rs.5.50 lakhs each in 19 O.S.No.2739/2016 cash by defendants No.1 and 2. On perusal of contents of Ex.P2, it appears that in the said partition, defendants No.1 and 2 and K.Venkatesh Babu took the suit schedule properties as their share; the plaintiff, the 4 th defendant and Smt.Srilakshmi took Rs.3.50 lakhs each and the 3 rd defendant took Rs.11.50 lakhs in cash as their share and the said amount was paid out of joint family funds. By executing Ex.P2, the plaintiff, defendants No.3 and 4 and Smt.Srilakshmi have relinquished their right, claimed and interest over the suit schedule properties. Such being the circumstances, the nature of the suit schedule properties became the joint property of defendants No.1 and 2 and K.Venkatesh Babu. After his death, it shall be devolved under Section 8 of the Hindu Succession Act.
19. The pleadings of defendants No.1 and 2 and the oral evidences of DW1 in his affidavit filed by way of examination- in-chief are that upon the death of K.Venkatesh Babu, the suit schedule properties would devolved by survivorship as per Hindu Succession Act and therefore, the plaintiff and 20 O.S.No.2739/2016 others are not liable for further partition of the suit schedule properties. The plaintiff cannot claim any share in the suit schedule properties as claimed by her. In that regard, the learned Counsel for the 2nd defendant has relied the judgments of the Hon'ble Supreme Court in the case between Vineeta Sharma V/s Rakesh Sharma & others (AIR 2020 SC 3717) and Vellikannu V/s R.Signaperumal & another [(2005) 6 SCC 622].
20. There is no merits in the above contention of the 2 nd defendant and the arguments of the learned Counsel for the 2nd defendant that upon the death of K.Venkatesh Babu, the suit schedule properties shall be devolved through survivorship. Because, it is admitted fact that any Partition Deed dated 27.09.2004, the suit schedule properties were given to the joint shares of defendants No.1 and 2 and K.Venkatesh Babu. From the said partition, the nature of joint family was disrupted. Defendants No.1 and 2 and K.Venkatesh Babu became the joint owners of the suit schedule properties. The said K.Venkatesh Babu died 21 O.S.No.2739/2016 intestate without any wife and children. K.Venkatesh Babu died leaving behind only Class-II legal heirs. Therefore, upon his death, his share in the suit schedule properties shall be devolved under Section 8 of the Hindu Succession Act, 1956 and not under Section 6 of the Hindu Succession Act, 1956. Therefore, the above judgments relied by the learned Counsel for the 2nd defendant are not applicable to the present case on hand. In the judgment relied by the learned Counsel for the plaintiff in the case between Shyam Narayan Prasad V/s Krishna Prasad & others [(2018) 7 SCC 646], the Hon'ble Supreme Court held that the share which a coparceners obtains on partition of ancestral property is ancestral property as regard to his male issue. After partition, property in the hands of a son continues to be ancestral property and son of that son (whether natural or adopted) takes interest on it and is entitled to it by survivorship. Here in this case, as aforesaid, K.Venkatesh Babu died issue less. Therefore, his right in the suit schedule properties cannot be devolved by survivorship. On the other hand, it shall be devolved through intestate succession i.e., under Section 8 of the Hindu 22 O.S.No.2739/2016 Succession Act, 1956. For the above reasons, the plaintiff has proved that she is entitled for share in the suit schedule properties in the share of K.Venkatesh Babu under Section 8 of the Hindu Succession Act, 1956.
21. Though, the 2nd defendant in his written statement has contended that one of the joint family property was sold after the death of L.K.Krishnaiah Setty for performance of the marriages of the plaintiff and the 4 th defendant; defendants No.1 and 2 looked after K.Venkatesh Babu during his illness; they spent huge amount for his treatment and the 2 nd defendant alone is looking after the 1 st defendant. DW1 in his examination-in-chief has deposed that he and the 1 st defendant gave about 300 grams of gold, 3 Kgs of Silver articles and a Bajaj Chetak Scooter as gift to the plaintiff at the time of her marriage. The above are the legal and moral obligations and they will not disqualify the plaintiff from seeking her right of share in the suit schedule properties upon the death of K.Ventakesh Babu. Because, the right of share accrued to the plaintiff upon his death. If the 23 O.S.No.2739/2016 defendants prove the liability of the plaintiff with cogent and reliable evidences, then only, she is entitled for share in the liabilities also. But, there are no such pleadings and the evidences by the defendants to quantify the share of the plaintiff in the liabilities.
22. Coming to the quantum of share of the plaintiff is concerned, as aforesaid, defendants No.1 and 2 and K.Venkatesh Babu were the joint owners of the suit schedule properties. Therefore, their right of share in the suit schedule properties is 1/3rd each. Upon the death of K.Venkatesh Babu, his 1/3rd share has to be divided between his Class-II legal heirs. The plaintiff, defendants No.2 to 4 and Smt.Srilakshmi are the Class-II legal heirs of the deceased K.Venkatesh Babu. The 1st defendant is not Class-II legal heir of K.Venkatesh Babu since she is the step mother of K.Venkatesh Babu. Therefore, the quantum of share of the plaintiff, defendants No.3 and 4 and Smt.Srilakshmi in the suit schedule properties is 1/15 th each. The quantum of share of the 1st defendant is 5/15th and the quantum of share 24 O.S.No.2739/2016 of the 2nd defendant is 6/15th. It is admitted fact that after execution of Ex.P2, Smt.Srilakshmi executed the Release Deed dated 29.07.2015 releasing her share in the suit schedule properties in favour of defendants No.1 and 2. In view of the release of the share of Smt.Srilakshmi in the suit schedule properties in favour of defendants No.1 and 2, the quantum of share of the 1st defendant is 6/15th and the quantum of share of the 2nd defendant is 7/15th. For the above reasons, the plaintiff has proved that she is entitled for the partition and separate possession of her 1/5 th share in the suit schedule properties. Hence, I answer Issue No.2 in the Affirmative.
23. ISSUES No.5 AND 6 AND ADDITIONAL ISSUE No.1 :-
The findings on these issues are interacted. Therefore, they are taken together for consideration.
The plaintiff has claimed her 1/15 th share in the suit schedule properties. For the reasons stated in issue No.2, the plaintiff has proved that she is entitled for partition and separate possession of her 1/15 th share in the suit schedule 25 O.S.No.2739/2016 properties. Therefore, the plaintiff is entitled for judgment and decree for partition and separate possession of her 1/15 th share in the suit schedule properties.
24. During the pendency of the suit, the 1 st defendant died. In the additional written statement filed by the 2 nd defendant, he has contended that the 1st defendant due to her natural love and affection towards him as executed a registered Will during her lifetime and according to the said Will, the 1 st defendant bequeathed all her share in the suit schedule properties in favour of the 2nd defendant. Therefore, additional issue was framed. To prove the additional issue, DW1 has deposed in his examination-in-chief that the 1 st defendant was suffering from Cancer and she underwent treatment for several years incurring huge cost, expenditure and sufferings. The burden of treatment etc., were borne by the 2nd defendant alone. Only himself and his wife looked after the 1st defendant and catered her needs including financial requirements during the long years of her ailment and treatment for Cancer till her death on 21.11.2016. The 26 O.S.No.2739/2016 1st defendant out of her natural love and affection towards the 2nd defendant has executed a registered Will bequeathing her share in the suit schedule properties entirely in her favour. Therefore, after the death of the 1 st defendant, the 2nd defendant alone acquired the right, title and interest in the suit schedule properties excluding others. On 25.07.20016, the 1st defendant executed a Will in his name, he is producing it and marking it as Ex.D9.
25. To prove the execution of the said Will by the 1 st defendant, the 2nd defendant has produced the oral evidences of one of its attesting witness T.S.Satish as DW2. He has filed his affidavit by way of examination-in-chief. In the said affidavit, he has deposed that he has attested the Will dated 27.04.2014 executed by the 1st defendant. In the year 2014, the 1st defendant informed him that she intended to execute a registered Will dated 27.05.2014 in respect of her properties and requested him to attest her Will. He agreed to attest the said Will. He is one of the witnesses who has attested the said Will. He has identified Ex.P9 as the said Will. He identified his 27 O.S.No.2739/2016 signature in the said Will and also the signature of the 1 st defendant. He has further deposed in his examination-in- chief that one S.N.Rajendra has also attested the said Will as a witness in his presence.
26. Ex.D9 is dated 27.05.2014. It is a registered document. It is the Will executed by the 1 st defendant bequeathing her undivided share in the suit schedule properties in favour of the 2nd defendant. During cross-examination of PW1, she has admitted that the 1st defendant gave her right in the suit schedule properties to the 2nd defendant through the Will. Will is a document required by law to be attested. Therefore, under Section 68 of the Indian Evidence Act, the execution of the Will shall be proved by examining at least one attesting witness. The proof of execution of the Will by examining at least one attesting witness is not exempted even if the execution of the Will is admitted. DW2 is one of its attesting witnesses. He deposed about the execution of Ex.D9 by the 1st defendant. In judgment relied by the learned Counsel for the 2nd defendant in the case between H.Venkatachala 28 O.S.No.2739/2016 Iyengar V/s B.N.Thimmajamma & others (AIR 1959 SC 443), the Hon'ble Supreme Court held as follows :-
"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which 29 O.S.No.2739/2016 must be satisfied by the party who relies on a document in a court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima-facie be true to say that the will 30 O.S.No.2739/2016 has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he 31 O.S.No.2739/2016 understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
27. Mere proof of execution of the Will by the testator is not sufficient. The execution of the Will may be surrounded by suspicious circumstances. All legitimate suspicious circumstances shall be completely removed before the document is accepted as the last Will of the testator. The presence of suspicious circumstances naturally tends to make the initial onus very heavy; and, unless its satisfactory discharge, the Court would be reluctant to treat the documents as the last Will of the testator. The above principles of law are also laid by the Hon'ble Supreme Court in the above judgment. In the light of the same, if the oral 32 O.S.No.2739/2016 evidences deposed by DW2 are read, it appears that he admitted certain facts which creates suspicious circumstances in the minds of the Court with regard to the due execution of Ex.D6 by the 1st defendant. DW2 has deposed in his cross-examination that he was called by the 2nd defendant to sign the said document and as per his request, he signed it. They are not stray evidences. DW2 deposed twice that he signed Ex.D9 since the 2 nd defendant told him to sign the said document. These evidences deposed by DW2 shows that the 2 nd defendant was actively participated in getting the execution of Ex.D9 by the 1 st defendant by showing interest/ involvement in calling DW2 to attest the said document. It is the only suspicious circumstance in execution of the Will Ex.D9 by the 1 st defendant. This suspicious circumstances appearing in the evidence of DW2 is not removed by the 2 nd defendant to the satisfaction to this Court. Therefore, the 2nd defendant has not proved the due execution of the Will Ex.D9 by the 1 st defendant.
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28. Since the 2nd defendant has not proved the execution of Ex.D9 by the 1st defendant, upon her death, her right of share in the suit schedule properties shall be devolved and her share shall be distributed among her legal heirs as per Section 15 of the Hindu Succession Act, 1956. Admittedly, the 1st defendant had no children. Therefore, the plaintiff, defendants No.2 to 4 and Smt.Srilakshmi being the heirs of the husband of the 1st defendant, under Section 15(1)(b) of the Hindu Succession Act, 1956, they are entitled for equal share out of the share of the 1st defendant in the suit schedule properties. As stated above in issue No.2, the quantum of share of the 1st defendant in the suit schedule properties is 6/15th. If the said share of the 1 st defendant has to be divided among the plaintiff, defendants No.2 to 4 and Smt.Srilakshmi, they are entitled for 1/15 th share each. For the above reasons, the plaintiff is entitled for additional 1/15th share in the suit schedule properties.
29. Though, the plaintiff has claimed the proportionate mesne profits, the 2nd defendant being one of the sharer, his 34 O.S.No.2739/2016 possession on the suit schedule property will not become an unlawful possession. Therefore, the plaintiff is not entitle for mesne profits. Hence, I answer Issue No.5 and Additional Issue No.1 in the Negative and Issue No.6 Partly in the Affirmative.
30. ISSUE No.7 :- In view of the findings on issues No.5 and 6, the suit of the plaintiff is liable to be partly decreed with costs. In the result, I proceed to pass the following;
ORDERS The suit of the plaintiff is hereby partly decreed with costs.
The plaintiff is entitled for partition and separate possession of her 2/15 th share in the suit schedule properties by metes and bounds.
The quantum of share of the 2 nd defendant is 7/15th, the quantum of shares of defendants No.3 and 4 are 2/15th each and the quantum of share of Smt.Srilakshmi is 1/15th.
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Draw the preliminary decree
accordingly.
After drawing the preliminary decree,
the office is hereby directed to convert this proceedings as Final Decree Proceedings and to put up the file to the open Court.
(Typed by the stenographer in the Court computer on my direct dictation, printout taken, corrected and then pronounced by me in the open court today on this the 2nd day of April 2026).
(VEDAMOORTHY B.S.) XXXI Addl. City Civil & Sessions Judge, Bengaluru.
C/c V Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for Plaintiff :-
PW1 : K.Shyamala.
List of documents exhibited for Plaintiff :-
Ex.P1 : Genealogical Tree,
Ex.P2 : Certified copy of Sale Deed,
Ex.P3 : Certified copy of Release Deed,
Ex.P4 : Office copy of Legal Notice,
Ex.P5 : Postal Receipts,
Ex.P6 to 9 : Postal Acknowledgments,
36 O.S.No.2739/2016
Ex.P10 : Reply Notice,
Ex.P11 : Khatha Certificate,
Ex.P12 : Khatha Extract,
Ex.P13 : Khatha Certificate,
Ex.P14 : Khatha Extract.
List of witnesses examined for the Defendants :-
DW1 : L.K.Nagaraj, DW2 : T.S.Satish, DW3 : L.K.Anuradha.
List of documents exhibited for the Defendants :-
Ex.D1 : Letter,
Ex.D2 & 3 : Receipts,
Ex.D4 : Case Summary and Discharge Record,
Ex.D5 : Mortgage Discharge Deed,
Ex.D6 : Receipt,
Ex.D7 : Certified copy of Sale Deed,
Ex.D8 : Photograph,
Ex.D8(a) : Negative,
Ex.D9 : Will,
Ex.D10 : Death Certificate.
(VEDAMOORTHY B.S.)
XXXI Addl. City Civil & Sessions Judge,
Bengaluru.
C/c V Addl. City Civil & Sessions Judge,
Bengaluru.