Bangalore District Court
Devendran K vs Venkatesh K on 23 January, 2025
KABC010186352020
Presented on : 21-10-2020
Registered on : 22-10-2020
Decided on : 23-01-2025
Duration: 4 years, 3 months, 2 days
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 23rd day of January, 2025
PRESENT
Sri. JAYAPRAKASH. A.,
B.A.L. LL.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
O.S. NO. 5185 of 2020
PLAINTIFFS: 1. Sri. Devendran.K.
S/o late R.Kannan,
Aged about 55 years.
2. Sri.Shivan.K.
S/o late R.Kannan,
Aged about 45 years.
Both are residing at:
(Old No.5) New No.23,
Now Assigned No.39, 14th B Cross,
Chinnappa Garden,
Sheshadri Road,
Benson Town Post,
Bengaluru 560046.
(By Sri.D.N.Arjun Kumar, Advocate)
2
O.S. NO. 5185/2020
- VERSUS-
DEFENDANTS: 1. Sri.Venkatesh.K.
S/o late R.Kannan,
Aged abaout 61 years.
2. Sri.Doraiswamy.K,
S/o late R.Kannan,
Aged about 59 years.
3. Sri.Shanmugam.K.
S/o late R.Kannan.
(Dead- No Issues)
4. Sri.Rajendran.K.
S/o late R.Kannan,
Since dead by LRs
4(a) Smt.Varalakshmi,
W/o late Rajendran,
Aged about 43 years.
4(b) Sri.Deepak.R.
S/o late Rajendran,
Aged about 23 years.
4(c) Sri. Harish.R.
S/o late Rajendran,
Aged about 20 years.
4(a) to 4(c) are residing at:
No.23 (old No.5),
Now assigned No.39,
14th B Cross,
Chinnappa Garden,
3
O.S. NO. 5185/2020
Sheshadri Road,
Benson Town Post,
Bengaluru 560 046.
5. Sri.Palani.K.
S/o late R.Kannan,
Aged about 47 years.
6. Smt.Jayanthi,
W/o Elumalai,
Aged about 57 years.
Defendant Nos.1 to 6 are all
residing at:
No.23 (Old No.5),
Now assigned No.39,
14th B Cross,
Chinnappa Garden,
Sheshadri Road,
Benson Town Post,
Bengaluru 560 046.
7. Smt.Malliga,
W/o Shekar,
Aged about 53 years,
R/at No.11/1, 14th B Cross,
Chinnappa Garden,
Sheshadri Road,
Benson Town Post,
Bengaluru 560 046.
(By D-1 & 7 Sri.DNK, Advocate,
D2 & 6 Sri.Exparte
D4 (a) to (c) Sri.DMR, Advocate
D5 Sri.MR, Advocate
D3 - Deleted
Date of institution of the suit: 21.10.2020
4
O.S. NO. 5185/2020
Nature of the suit (suit on Partition Suit
pronote, suit for declaration
and possession suit for
injunction,etc) :
Date of the commencement of
recording of the evidence: 14/03/2022
Date on which the Judgment 23/10/2025
was pronounced:
Total duration Year/s Month/s Day/s
04 03 02
(Sri. JAYAPRAKASH. A),
LXVI Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
The plaintiff has filed this suit against the defendant seeking for partition and separate possession to an extent of 1/9th share over the suit schedule property and put the plaintiffs in possession of 1/9th share by effecting the partition by meats and bounds over the suit property; To declare that the registered Will executed by deceased R.Kannan in favour of children of defendant Nos.4 and 5 which was registered in the office of the Sub-Registrar, registered as document No.GNR-3-00034/2000-2001 stored in CD No.GNRD20 dated 12/08/2010 is created concocted and fabricated one and the same is illegal, null and void and 5 O.S. NO. 5185/2020 liable to be cancelled and same is binding on the plaintiffs; Restrain the defendants from meddling, transferring, encumbering, alienating the suit schedule property through them or under them, through their agents, henchmen, power of attorney holders, etc, in favour of the 3rd parties by granting the permanent injunction against the defendants; and for costs of the suit.
2. The brief facts of the plaintiff's case i s t h a t :
The father of the plaintiffs and defendants namely Sri.Kannan, purchased the suit schedule property bearing Katha new No.23 (old No.5), 14th B Cross, Chinnappa Garden which comes under the BBMP Ward No.92- Jayamahal having PID No.92-56-23, measuring East- West 30 feet and North-South- 35 feet in all measuring 1050 square feet,through sale deed dated 08/09/1975 from Venkataswamappa and subsequent to the said purchase katha was effected in the name of their father and he has been paying the tax to the concerned authorities. It is further stated that out of the wedlock of their father Sri.R.Kannan with their mother Smt.Boddamma 9 children were born, who are the plaintiffs and defendants. The defendant Nos.6 and 7 got married during the life time of their father and residing in 6 O.S. NO. 5185/2020 their matrimonial home and all the expenses of the marriage was borne by the their father.
3. The suit schedule property was a vacant site at the time of purchase by their father Sri.R.Kannan and thereafter along with the collective help and efforts of plaintiffs and defendants, he has constructed three storied building over the suit schedule property consisting of ground, first and second floor and was in physical possession and enjoyment of the suit schedule property along with the plaintiffs and defendants without there being any disturbances. There was no encumbrance over the suit schedule property.
4. It is further stated that their father died on 30/07/2020 and their mother predeceased their father in the year 1981. During the life time of their father, the plaintiffs and defendants were residing in the suit schedule property in different portions and continued to reside in the suit schedule property in the status of the joint family property. The plaintiffs and defendants are governed by Hindu Mitakshara School of Law and as such they are having legal right to succeed to the estate of deceased Sri.R.Kannan as legal heirs as per the Hindu Succession Amendment Act. The plaintiffs along 7 O.S. NO. 5185/2020 with defendants are equally entitled to their respective shares of 1/9th share over the suit schedule property. After the death of their father difference arose among the plaintiffs and defendants in respect of division of the suit schedule property and their respective shares. There was no possibilities to continue in joint status of the suit property for which the plaintiffs approached the first defendant to effect partition and separate possession of 1/9th share over the suit property who being the elder member and kartha of the family and managing affairs of the suit schedule property. Even the persistent demands and requests made with the first defendant to effect partition went in vain. His attitude was different and violent and not inclined to effect the partition. Finally on 5/10/2020 the plaintiffs approached defendant No.1 to effect partition of their legally entitled share of 1/9th share, but he refused to effect the same and trying to negotiate with the 3rd parties to sell the suit schedule property behind the back of the plaintiffs. If the first defendant succeeds in his attempt of alienation of the suit schedule property, the plaintiffs will be put to untold hardship and injury which leads to multiplicity of proceedings.
8O.S. NO. 5185/2020
5. It is further stated that the plaintiffs were utter shocked and surprised to know from the written statement filed by defendant No.5 on 24/03/2022 that a registered Will is said to have been executed by deceased R.Kannan in favour of children of defendant Nos.4 and 5 registered in Sub Registrar office as document No.GNR-3-00034/2000-2001 on 12/08/2010. The said will is created, concocted and fabricated one and the same is null and void and not binding on the plaintiffs.
6. It is further stated that at the age of 80 years their father R.Kannan was not having good health and forcibly took him to Sub Registrar office and got registered Will in favour of children of defendant Nos.4 and 5. The alleged Will is typed in English language and deceased R.Kannan was not knowing English language and he was not having any worldly knowledge of writing English or Kannada except signature in Tamil language. The alleged Will is created illegally to suit the convenience of the defendant Nos.4 and 5. There was no intention on the part of deceased Kannan to execute the alleged Will in favour of the children of defendant Nos.4 and 5. Infact, the son of defendant 9 O.S. NO. 5185/2020 No.2 is also having a male child if such being the intention of the deceased R.Kannan he would have executed in favour of son of second defendant. The averments of the entire Will is surrounded by suspicious circumstances and hence the said Will is illegal, unjust, created and concocted and null and void and not binding on the share of the plaintiffs.
7. It is further stated that even after the death of deceased Kannan, the defendant No.5 would have got the probate certificate from the competent Court, but he has not produced any such certificate till date. The deceased Kannan has not paid any amount in cash to any of the family members much less to the plaintiffs nor they have acknowledged any amount by way of cash in lieu of the share of suit schedule property and plaintiffs have not executed any documents in favour of deceased R.Kannan for having acknowledged the amount. The alleged Will relied by the defendant No.5 is fabricated one and same is null and void and liable to be cancelled.
8. The cause of action to the suit arose on 5/10/2020 when the plaintiffs demanded for partition and separate possession and subsequently when plaintiffs had 10 O.S. NO. 5185/2020 approached the revenue authorities to secure the extract and katha certificate on 13/10/2020 and secured the encumbrance certificate on 15/10/2020. Therefore, prayed to decree the suit.
9. On registration of the suit, summons was issued to the defendants. In response to the summons the defendant Nos.1, 3 to 5 and 7 appeared before the Court through their counsel. Inspite of service of summons defendant Nos.2 and 6 have not chosen to appear before the Court and hence, they were placed exparte. Defendant Nos.1, 5 and 7 have filed their written statement.
10. The defendant Nos.1 and 7 in their written statement have admitted the case of the plaintiffs. The defendant No.5 has denied the case of the plaintiffs but he has admitted that the suit schedule property was purchased by father of the plaintiffs and defendants on 08/09/1975. He has denied the fact that the suit schedule property was purchased by utilising the joint income of the plaintiff and defendants father as well as the plaintiffs. The defendant No.5 has admitted the relationship of the parties. He has stated that the father of plaintiff and defendant at his own toil and costs 11 O.S. NO. 5185/2020 constructed three storied building in the suit schedule property consisting of ground, first and second floor and he was in physical possession of the suit schedule property. His father died on 30/07/2020 and his mother predeceased his father in the year 1981. It is further contended that his father has executed the registered Will in favour of grand sons i.e. in favour of the male children of K.Rajendran, K.Palani and K.Shivaram on 12/08/2010. The defendants are well aware of the execution of the above said Will by their father, in favour of his grand sons. In order to harass the defendant Nos.4 and 5 and their grand children, the plaintiffs filed the suit intentionally in violation of the intention of the deceased father. The father of the plaintiff and defendants was having constant intention and volition to execute the Will as his last and final wish in favour of grand children. To complete his last intention he executed the Will, before his death. So, the plaintiffs and other defendants have no right or interest over the suit schedule property. There is no cause of action for the suit. Therefore, prayed for dismissal of the suit.
11. On the basis of the above pleadings my Predecessor-in-office has framed the following issues:
12O.S. NO. 5185/2020 ISSUES (1) Whether the defendant No.5 proves that the father of the plaintiffs and the defendants Sri.R.Kannan has executed registered WILL dated 12/08/2010 in favour of plaintiff No.1 the defendant No.4 and 5 sons in respect of the suit schedule property when he was in sound state of mind?
(2) Whether the plaintiff prove that defendant No.5 created and concocted the registered WILL dated 12/08/2010?
(3) Whether the plaintiffs are entitled for 1/9th share in the suit schedule property?
(4) What order or decree ?
12. In support of the case first plaintiffs, plaintiff No.1 got examined himself as PW1 and got marked 6 documents as per Ex.P1 to Ex.P10. On the other hand defendant No.5 got examined himself as DW1 and 13 O.S. NO. 5185/2020 examined one witness as DW-2 in support of his case and got marked Ex.D-1.
13. Heard the arguments of counsel for the plaintiffs and defendants. Perused the pleadings and evidence on record and notes of arguments submitted by the counsel for plaintiffs.
14. The learned counsel for plaintiffs has relied upon the following rulings;
1) AIR 1959 Supreme Court 443 in the case of Venkatachala Iyengar Vs B.N.Thimmajamma & Others.
2) AIR 1966 Jammu & Kashmir 75 in the case of Guru Dutt Singh & another Vs Durga Devi & Another.
3) AIR 1972 Supreme Court 2492 in the case of Pushpavathi & Others Vs Chandraja Kadamba & Others.
4) (2021) 14 Supreme court Cases 500 in the case of Rajkumari & Others Vs Surinder Pal Sharma.
5) 2008 AIR SEW 5666 Supreme Court in hte case of Baljinder Singh Vs Rattan Singh.
15. The learned counsel for defendant Nos.4 and 5 has relied upon the following rulings;
14O.S. NO. 5185/2020 Civil Appeal No(s) 13192 of 2024 in the case of Gopal Krishan & Others Vs Daulat Ram & Others.
16. On hearing the arguments and on perusal of the materials placed on record my findings on the above issues are as follows:
Issue No.1 : In the Negative
Issue No.2 : Does not survive for
my consideration
Issue No.3 : In the Affirmative
Issue No.4 : As per final order
for the following:
REASONS
17. Issue Nos.1 and 2 : The issue Nos.1 and 2 are taken up together for common discussion in order to avoid repetition of facts.
18. It is the case of the plaintiff that suit schedule properties originally belonged to their father late R.Kannan. He purchased the said property on 08/09/1975. The said Kannan married one Smt.Boddamma and begotten nine children who are 15 O.S. NO. 5185/2020 the plaintiffs and defendants herein. In so for as the relationship of the parties is concerned, there is no dispute. It is also not in dispute that the suit schedule property was purchased by the father of the plaintiff and defendants namely Kannan on 08/09/1975. Therefore, it is not in dispute that the suit schedule property is the self acquired property of R.Kannan.
19. It is the contention of the defendant No.5 that during his life time Kannan had executed a registered Will dated 12/08/2010 bequeathing the suit schedule property in favour of his grand children i.e., the male children of plaintiff No.2, defendant Nos.4 and 5. On the basis of the said Will they are in possession of the same. On the other hand the plaintiffs have taken the contention that the alleged Will dated 12/08/2010 is a created, concocted and fabricated document, same is not binding on the plaintiffs. Now, the question to be decided in this suit is whether alleged Will executed by Sri.Kannan is a created and fabricated document or whether defendant No.5 proves the execution of the Will in terms of Section 63 of Indian Succession Act and Section 67 of Evidence Act.
16O.S. NO. 5185/2020
20. In order to prove his case plaintiff No.1 has got examined himself as PW.1. He has filed his affidavit in lieu of examination in chief. In his examination in chief he has reiterated the averments of the plaint. During the cross examination it has been elicited that his father was working in BSNL. It is also elicited that himself, defendant No.1/Venkatesh and Defendant No.2/Doreswamy also worked in BSNL and took voluntary retirement. He has admitted that his father has provided job to them in BSNL. It is also elicited that during his life time his father performed marriage of his daughters i.e. defendant Nos.6 and 7 and gave sites to them. He has denied all other suggestions put by the counsel for defendant No.5.
21. In order to substantiate their case plaintiffs have produced Ex.P.1 registered Sale Deed dated 08/09/1975 which indicates that their father R.Kannan has purchased the suit schedule property. The purchase of the property by R.Kannan is concerned there is no dispute. Ex.P.2 is the katha certificate pertaining to the suit schedule property the same is standing in the name of Kannan. Ex.P.3 is the katha extract in respect of the suit schedule property and the same is standing in the name of Kannan. Ex.P.4 is the 17 O.S. NO. 5185/2020 tax paid receipt in respect of the suit schedule property. Ex.P.5, 6 and 7 are the encumbrance certificates. Ex.P.8 is the death certificate pertaining to R.Kannan which indicates that he died on 30/07/2020. Ex.P.9 is the death certificate of defendant No.3/Shanmugam which indicates that said Shanumgam died on 30/06/2021. Ex.P.10 is the Genealogical Tree. No much discussion is required on the above documents since the relationship of the parties is not in dispute and it is also not in dispute that the R.Kannan purchased the suit schedule property under a sale deed and the same is self acquired property of Kannan.
22. The point to be considered now is whether the defendants prove the execution of Will in terms with Section 63 of Indian Succession Act and Section 68 of the Indian Evidence Act. In order to prove the execution of Will defendants got examined A.Bhaskaran as DW-2. He is the attesting witness to the alleged Will. He has filed his affidavit in lieu of examination in chief. In his affidavit he has stated that R.Kannan executed registered Will in the year 2010 before Ganganagar Sub Registrar. Himself and Ravikanth Rao have affixed their signatures as witnesses to the said Will. It is to be noted that by 18 O.S. NO. 5185/2020 examining DW-2, the defendants have made an attempt to comply with Section 68 of Indian Evidence Act to prove the Will. The mode of proof of unprivileged Will is enshrined in Section 63 of Indian Succession Act. At this juncture it is necessary to go through Section 63 of Indian Succession Act:
" Section 63 : Execution of unprivileged Wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received 19 O.S. NO. 5185/2020 from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
23. On perusal of Sub Clause (c) of Section 63, it indicates that the Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator and has received from the testator a personal acknowledgment of his signature or mark or of the signature of such other person and such of the witnesses shall sign the Will in the presence of the testator. Now, it is to be seen whether Ex.D-1 Will is proved as per the requirements of Section 63 of Indian Succession Act.
24. In his affidavit DW-2 has no where stated that he has seen the executant signing the Will in his presence. Therefore, the very purpose of examining the attesting witness is defeated for the reason of not stating by DW- 2 that executant R.Kannan signed the Will in his 20 O.S. NO. 5185/2020 presence. Apart from the above, it is necessary to go through the cross examination of DW-2. The relevant portion of the cross examination of DW-2 is extracted here below:
" While signing the Will , I have not noticed any corrections. I do not know the contents of Will. I do not know as to who prepared the said Will. Sri.R.Kannan has not discussed anything with regard to the Will with me during his life time. I have not personally seen as to what is written in the said Will."
25. On perusal of the above piece of evidence of DW- 2, it is clear that DW-2 was not aware of the contents of the Will while he signed the same. He has also stated that the executant of the Will has not discussed anything with regard to the execution of the Will during his life time. He has also stated that he has not gone through the contents of the Will before signing the same. The above aspects indicate that the defendants have failed to prove the execution of the Will by Sri.R.Kannan. Though DW-2 has admitted that he has signed the Will as per Ex.D-1(a), he has not stated that the executant has signed the Will in his presence. There are no materials on record as to in whose presence executant of the Will signed the Will. When 21 O.S. NO. 5185/2020 the provision of law makes it mandatory to the attesting witness to have seen the testator signing the Will, the lack of evidence in respect of the same would indicate that the profounder of the Will has failed to prove the execution of the Will. It is pertinent to note that though the profounder of the Will could not prove the execution of the Will through DW-2, it is not forthcoming as to why they have not examined another witness or the scribe of the Will. No attempt has been made by the profounder of the Will to examine the other witnesses for the best reasons known to them.
26. At this juncture it is necessary to place reliance on the ruling reported in AIR 1977 SC 63 in the case of Beni Chand Vs Kamala, wherein it is held that:
" By attestation, it is meant the signing of a document to signify that the attestor is a witness to the document. Attesting witness is one who signs the document in presence of the executant, after seeing the execution of the document or after receiving the personal acknowledgment of the executant with regard to the execution of the document."
27. It is worthwhile to place reliance on the ruling reported in (2003) 2 SCC 91 in the case of Janaki Narayan Vs Narayan Namdeo, wherein it is held that:
22O.S. NO. 5185/2020 " Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act, fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirement of section 68 of the Indian Evidence Act."
28. The plaintiffs have brought out some suspicious circumstances surrounding the Will, and the counsel for plaintiff vehemently argued that there are some corrections in the Will and the name of defendant Nos.4 and 5 are inserted later on. The said contention of the plaintiffs is corroborated by the evidence of DW-2 who has categorically stated during the cross examination that while signing the Will, he had not noticed any corrections. Therefore, in order to remove the said suspicious circumstances surrounding the Will, the defendants ought to have examined the other attesting witness. But, they have failed to examine the other attesting witness to remove the suspicious circumstance. Further, DW-1 during the cross examination has stated that everybody i.e., his brothers and sisters including him were present during the 23 O.S. NO. 5185/2020 execution of the Will. Contrary to the same DW-2 has stated that except Palani i.e., defendant No.5, no other children of R.Kannan were present during the execution of Will. This aspect has not been clarified by the defendant No.5 because his son is one of the beneficiaries of the Will. This suspicious circumstance is also not removed by the defendants by producing cogent evidence.
29. The counsel for plaintiff has placed reliance on the following judgments:
AIR 1959 Supreme Court 443 in the case of Venkatachala Iyengar Vs B.N.Thimmajamma & Others wherein it is held that " Onus of proof to prove the Will is on the propounder of the Will. The question as to whether the Will set up by the profounder is proved to be last Will of the testator has to be decided in the light of the provisions contained in Section 68 of Indian Evidence Act and Section 63 of Indian Succession Act."
AIR 1966 Jammu & Kashmir 75 in the case of Guru Dutt Singh & another Vs Durga Devi & Another. Wherein it is held that :24
O.S. NO. 5185/2020 " In respect of a Will the onus is on the profounder to satisfy the court that the Will is not only the physical but also the mental act of the testator. This can be established by providing the due execution and attestation of the Will and sound disposing capacity of the testator. "
AIR 1972 Supreme Court 2492 in the case of Pushpavathi & Others Vs Chandraja Kadamba & Others, wherein it is held that :
" It is for the profounder of the Will to prove it, and in the absence of suspicious circumstances, surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus which is placed upon the profounder of the Will."
(2021) 14 Supreme Court Cases 500 in the case of Rajkumari & Others Vs Surinder Pal Sharma, wherein it is held that:
" Section 71 of evidence Act is applicable where attesting witnesses who were called failed to prove execution of Will in which case execution can be proved by other evidence and not applicable when only one attesting witness called and examined who failed to prove execution of Will and other attesting witness not summoned."25
O.S. NO. 5185/2020 The facts and circumstances of the case relied upon by the counsel for plaintiff is aptly applicable to the case on hand since the profounder of the Will failed to prove the due execution of the Will.
30. Counsel for plaintiff has also relied upon a ruling reported in 2008 AIR SEW 5666 Supreme Court in the case of Baljinder Singh Vs Rattan Singh, and the facts and circumstances of the case relied upon by the counsel for plaintiff is not applicable to the case on hand.
31. On the other hand the counsel for the defendant Nos.4 and 5 has placed reliance on the judgment rendered by Hon'ble Apex Court in Civil Appeal No.13192/2024 arising out of SLP (Civil) No.25645/2018 dated 02/01/2025 in the case of Gopal Krishnan and others Vs Daulat Ram and others wherein the counsel for the defendants relied upon the observation:
" The language of section 63 (c) of the Act uses the word 'OR'. It states that each Will shall be attested by two or more witnesses who have seen the testator sign or affix his mark on the Will or has seen some other persons sign the Will in the presence and by the direction of the testator or has received a personal acknowledgment from the Testator of his 26 O.S. NO. 5185/2020 signature or mark etc. What flows there from is that the witnesses who have attested the Will ought to have seen the testator sign or attest his mark or have seen some other persons sign the Will in the presence of and on the direction of the Testator."
32. In the said case the testimony of DW-1 is clear that he had seen the deceased affix his mark on the Will. That alone would ensure compliance of Section 63 (c). But, in the case on hand DW-2 who is the attesting witness has not stated to the effect that he had seen the executant signing the Will or affix his mark on the Will. Therefore, the ruling relied by the counsel for defendant Nos.4 and 5 is not applicable to the case on hand.
33. It is to be noted that the Ex.D-1 Will is a registered document. Under these circumstances, there is a evidentiary value to the registered Will. Though it is true that Will is registered one, the profounder of the Will failed to meet the requirements of Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act. Therefore, though Will is registered one, unless it is proved in accordance with Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act, the said Will cannot be taken in to 27 O.S. NO. 5185/2020 consideration for any purpose. At this juncture it is worthwhile to place reliance on the judgment rendered by Hon'ble Apex Court in Civil Appeal No.8172/2009 in the case of Dhani Ram (Died) through LRs and others Vs Shiv Singh wherein it is held that:
" It is well settled that mere registration would not sanctify a document by attaching to it an irrebatable presumption of genuineness."
34. At this juncture it is worthwhile to place reliance on the judgment of Hon'ble Apex Court reported in AIR 1962 SC 567 in the case of Rani Purnima Debi and another Vs Kumar Khagendra Narayan Deb and another wherein it is held that:
" There is no doubt that if a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token 28 O.S. NO. 5185/2020 thereof, the registration will dispel the doubt as to the genuineness of the Will. But the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeking the testator reading the Will) that the Testator knew that it was a Will the execution of which he was admitting, the fact, that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law Reports are full of cases in which registered Wills have not been acted upon --- Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of Will: though the fact that there has been registration would be an important circumstance in favour of the Will being genuine if the evidence has to registration establishes that the testator admitted the execution of Will after knowing that it was a Will the execution of which he was admitting. "
35. The plaintiffs have taken a contention that defendant No.5 has created concocted Will. In view of the above discussion, it is observed that the defendant No.5 failed to prove the execution of Will. When the execution of Will itself is not proved, the question of considering whether the Will is a created or concocted document does not arise. Therefore, Issue No.1 is 29 O.S. NO. 5185/2020 answered in the Negative and Issue No.2 does not survive for my consideration.
36. Issue No.3 : The plaintiffs have filed the suit for the relief of partition and separate possession. It is not in dispute that the suit schedule property is the self acquired property of R.Kannan. Plaintiff Nos.1 and 2, defendant No.1, 2, 3, 4, 5, 6 and 7 are the children of the said R.Kannan. There is no dispute in respect of the acquisition of property by Kannan and the relationship of the parties. Though defendant No.5 has taken a contention that R.Kannan has executed Will in favour of his grand children, the profounder of the Will has failed to prove the execution of the Will. Under these circumstances, plaintiffs and defendants being the children of R.Kannan are entitled for equal share in the self acquired property of their father namely Kannan. Therefore, the plaintiffs and defendants are entitled to inherit the property under Section 8 of Hindu Succession Act.
37. It is to be noted that during the pendency of the suit defendant No.3 expired. It is reported that he died unmarried and there are no other legal heirs to defendant No.3. Therefore, other children of deceased 30 O.S. NO. 5185/2020 Kannan are entitled for equal share in the suit schedule property. Though plaintiffs have sought for 1/9th share each in the suit schedule property, in view of death of defendant No.3 without any legal heirs, the plaintiffs are entitled for 1/8th share each in the suit schedule prperties. Therefore, Issue No.3 is answered in the Affirmative.
38. Issue No.4: In view of above discussion and answer to the above issues, it is just and proper to pass the following;
ORDER The suit filed by the plaintiffs is decreed.
The plaintiff Nos.1 and 2 are entitled for 1/8th share each in the suit schedule property.
Defendant No.1, 2, 5 to 7 are entitled for 1/8th share each in the suit schedule property.
LRs of defendant No.4 i.e., LR.4(a) to 4(c) are together entitled for 1/8th share in the suit schedule property.
31O.S. NO. 5185/2020 The defendants shall pay necessary Court fee in respect of the share allotted to them.
Having regard to the relationship of the parties, I direct both the parties to bear their own costs.
Draw Preliminary decree
accordingly.
(Dictated to the Stenographer Grade-I online, transcribed by her, corrected and taken out print from the computer and then pronounced in the open Court on this the 23rd day of January, 2025).
(JAYAPRAKASH. A ), LXVI Addl.City civil & Sessions Judge, Bengaluru.
SCHEDULE All that piece and parcel of the residential house property bearing (Old No.5) New No.23, now assigned No.39, 14th B Cross, Chinnappa Garden, Seshadri Road, BEnson Town Post, Bengaluru - 560 046, which comes under the BBMP Ward No.92, Jayamahal, measuring East- West 30 feet and North to South 35 feet totally 32 O.S. NO. 5185/2020 measuring 1050 square feet consisting of ground, first and 2nd floors bounded on:
East by : Private Property;
West by : Private Property
North by : Water Drain
South by : Road.
(JAYAPRAKASH. A ),
LXVI Addl.City civil & Sessions Judge, Bengaluru.
ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1: K.Devendran
2. List of documents marked for Plaintiff:
Ex.P-1 Original sale deed dated 08/09/1975 Ex.P-2 Katha certificate Ex.P-3 Katha extract Ex.P-4 Tax paid receipt dated 18/05/2020 for the year 2020-21 Ex.P.5 CC of Encumbrance certificate dated 1/04/1975 to 15/05/1992 Ex.P.6 CC of Encumbrance certificate dated 01/04/2004 to 4/06/2007 Ex.P.7 CC of Encumbrance certificate dated 1/01/2016 to 15/10/2020 33 O.S. NO. 5185/2020 Ex.P.8 Death certificate of Kannan Ex.P.9 Death certificate Ex.P.10 Genealogical Tree
3. List of witnesses examined for Defendants:
DW1 : Palani.K.
DW2 : Bhaskaran.A.
4. List of documents exhibited for Defendants:
Ex.D1 : Original registered Will dated 12/08/2010 Ex.D1(a) : Signature of DW2 (JAYAPRAKASH. A), LXVI Addl.CC & SJ, Bengaluru.
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O.S. NO. 5185/2020
Judgment pronounced vide
separate judgment with following
operative portion:
ORDER
The suit filed by the plaintiffs is
decreed.
The plaintiff Nos.1 and 2 are
entitled for 1/8th share each in the suit schedule property.
Defendant No.1, 2, 5 to 7 are entitled for 1/8th share each in the suit schedule property.
LRs of defendant No.4 i.e., LR.4(a) to 4(c) are together entitled for 1/8th share in the suit schedule property.
The defendants shall pay necessary Court fee in respect of the share allotted to them.
Having regard to the relationship of the parties, I direct both the parties to bear their own costs.
Draw Preliminary decree
accordingly.
LXVI Addl.CC & SJ,
Bengaluru.
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O.S. NO. 5185/2020