Bangalore District Court
In K.Krishnamurthy vs Smt.Mahalakshmamma on 29 April, 2015
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 29th Day of April 2015.
Present: Sri. M.S.Patil, B.Sc., LL.B.
XXII Addl.City Civil & Sessions Judge.
Bengaluru.
O. S. No. 7 9 2 8 / 1999
clubbed with
O.S.No. 7 9 9 9 / 1999
and
O.S.No. 8 0 5 3 / 2013
Plaintiff in K.Krishnamurthy,
O.S.No. S/o. late K.N.Kantharaj,
7928/1999 Aged about 37 years, R/at No.1088,
5th Block, 66th Cross, 18th 'B' Main,
Rajajinagar, Bengaluru - 560 010.
In person.
Vs.
Defendants 1. Smt.Mahalakshmamma,
in O.S.No. W/o. late K.N.Kantharaj,
7928/1999 Aged about 60 years, R/at No.1088,
66th Cross, 18th 'B' Main, 5th Block,
Rajajinagar, Bengaluru - 560 010.
2. K.Anjaneyamurthy,
S/o. late K.N.Kantharaj,
Aged about 43 years, R/at No.1088,
66th Cross, 18th 'B' Main, 5th Block,
Rajajinagar, Bengaluru - 560 010.
3. K.Radha Krishna,
S/o. late K.N.Kantharaj,
Aged about 33 years, R/at No.1088,
66th Cross, 18th 'B' Main, 5th Block,
Rajajinagar, Bengaluru - 560 010.
2 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
4. K.Anjana Devi,
d/o. late K.N.Kantharaj,
w/o. M.Sudarshan,
aged about 36 years,
Resident at Ranga Rao Road,
Chamarajpet, Bengaluru.
5. K.Rajeshwari,
d/o.late K.N.Kantharaj,
w/o.K.Anil Kumar,
aged about 31 years,
Ashoka Pillar Road, Jayanagar,
Bengaluru.
6. K.Gayathri,
d/o.late K.N.Kantharaj,
No.1088, 66th Cross,
18th 'B' Main Road, 5th Block,
Rajajinagar, Bengaluru-10.
7. Sri.P.S.Nathan,
s/o.M.S.Muthu Pillari,
aged about 53 years,
residing at "Stellas Villa",
No.28, 80 feet road,
S.T.Bed, Koramangala,
Bengaluru-560 034.
8. Smt.Thekalanathan,
w/o.Sri.P.S.Nathan,
aged about 43 years,
residing at "Stellas Villa",
No.28, 80 feet road,
S.T.Bed, Koramangala,
Bengaluru-560 034.
D1 to 3-By Sri.M.T.Nanaiah, Advocate.
D4, 6-by Sri.A.Sampath, Advocate.
D5-by Sri.P.Srinivsaiah, Advocate.
D7 & 8-by Sri.S.Shaker Shetty, Advocte.
3 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
Plaintiff in Sri. Radha Krishna,
O.S.No. Aged about 33 years,
7999/1999 S/o. late K.N.Kantharaj, R/at No.1088,
5th Block, 66th Cross, 18th 'B' Main,
Rajajinagar, Bengaluru - 560 010.
by Sri.Nanaiah, M.T., Advocate.
Vs.
Defendants 1. Sri.K.Krishnamurthy,
in O.S.No. Aged about 37 years,
7999/1999 S/o. late K.N.Kantharaj.
2. Smt. Anjana Devi,
aged about 36 years,
w/o. M.Sudarshan, R/at No.224,
3rd Cross, 4th Main, Chamarajpet,
Bengaluru-560018.
3. Sri. K.Anjaneyamurthy,
Aged about 42 years,
S/o. late K.N.Kantharaj,
4. Smt. Rajeshwari,
Aged about 30 years,
w/o.K.L.Anil Kumar, r/at No.13,
Ashoka Pillar Road, Jayanagar, II Block,
Bengaluru-560011.
5. Smt.K.Gayathri,
Major in age,
d/o.late K.N.Kantharaj.
6. Smt.Mahalakshmamma,
Aged about 61 years,
W/o. late Kantharaj,
Sl.No.1, 3, 5 and 16 residing at
No.1088, 5th Block, Rajajinagar,
Bengaluru - 560 010.
D1-by Sri.C.V.Nagesh, Advocate.
D2, 4, 5-by Sri.R.Nataraj, Advocate
D3 & D6-by Sri.Venkatesh Murthy,G.R., Advocate
4 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
Plaintiffs in 1. Smt.Yashodha,
O.S.No. Aged 58 years,
8053/2013 d/o.late K.N.Kantharaj and
w/o. K.Sreeramsagar,
residing at No.121, New No.42,
Varadamuthiappan Street,
Chennai-600001.
2. Smt.Lakshmi,
Aged about 53 years,
d/o.late K.N.Kantharaj and
w/o.Agadi Sivakumar, r/ at No.64-A,
Mokha Road, SBI Colony,
Gandhinagar, Bellary-583101.
-By Sri.Sanjay Gowda.N.S., Advocate.
Vs.
Defendants 1. Sri. K.Anjaneyamurthy,
in O.S.No. Aged 56 years, S/o. late K.N.Kantharaj,
8053/2013 Residing at No.15, Srikantan Layout,
Crescent Road, High Grounds,
Kumara Park East, Bengaluru-560001.
2. Sri.K.Krishnamurthy,
Aged about 50 years,
S/o. late K.N.Kantharaj,
residing at No.1088, 18th 'B' Main,
V Block, Rajajinagar, Bengaluru-560 010
3. Smt. Anjana Devi,
aged about 48 years,
d/o.late K.N.Kantharaj and
w/o. M.A.Sudarshan, R/at No.143,
V Main, Chamarajpet,
Bengaluru-560018.
4. Sri. Radha Krishna,
S/o. late K.N.Kantharaj,
47 years, residing at No.MIG-115,
KHB Colony, I Floor, 80 feet Road,
Basaveshwaranagar, Bengaluru-560079.
5. Smt. Rajeshwari,
d/o.late K.N.Kantharaj,
44 years, w/o.K.L.Anil Kumar,
r/at No.69, II Block, Ashoka Pillar,
Jayanagar, Bengaluru-560004.
5 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
6. Smt.K.Gayathri,
d/o.late K.N.Kantharaj,
42 years, residing at No.MIG-115,
KHB Colony,
I Floor, 80 feet Road,
Basaveshwaranagar, Bengaluru-560079.
7. Smt.K.Mahalakshmamma,
W/o. K.N.Kantharaj, 76 years,
residing at No.MIG-115, KHB Colony,
I Floor, 80 feet Road,
Basaveshwaranagar, Bengaluru-560079.
D1-by Sri.B.M.Arun, Advocate.
D2-In person
D3-by Sri.K.Rama Setty, Advocate.
D4-in person
D5-by Sri.P.Srinivasaiah, Advocate.
D6,D7-Served, Absent.
Date of institution of suits
O.S.No.7928/1999 25-10-1999
O.S.No.7999/1999 27-10-1999
O.S.No.8053/2013 05-11-2013
Nature of the suits
O.S.No.7928/1999 Partition and separate
possession and
Recovery of arrears
O.S.No.7999/1999 Partition and separate
possession
O.S.No.8053/2013 Partition and separate
possession and to give
account for the profits
Date of commencement of 22-12-2009
recording of evidence
Date on which Judgment 29-04-2015
was pronounced
Total duration Days Months Years
O.S.No.7928/1999 04 06 15
O.S.No.7999/1999 02 06 15
O.S.No.8053/2013 24 05 01
6 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
COMMON JUDGMENT
O.S.No.7928/1999 is filed by the plaintiff against
defendants 1 to 8, for partition and separate
possession of 1/4th share in all Moveable and
immoveable properties of the joint family and for
recovery of all the arrears of 1/4th share in all the
joint family of business concerns right from the
demise of plaintiff's father and the interest on the
arrears of share of the plaintiff from the date of
demise of plaintiff's father together with costs and
mesne profits and for such other relies, which Court
deems fit.
2. O.S.No.7999/1999 is filed by the plaintiff
against defendants 1 to 6, for partition and separate
possession of suit 'A' to 'D' properties, to an extent
of 1/8th share, to the plaintiff and defendants 1 to 6
and for costs of this suit and such other reliefs,
which Court deems fit.
3. O.S.No.8053/2013 filed by the plaintiffs 1
and 2 against defendants 1 to 7 is for partition and
for allotment of plaintiffs' legitimate shares and for
putting them in separate possession of the same and
to direct defendants to account for profits earned by
them and to direct them to pay plaintiffs their
legitimate share in the mesne profits and to pass
such other orders, which Court deems fit.
7 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
4. In view of Order passed in Order Sheet
dated 31-7-2009 passed in O.S.No.7999/1999 and
Order passed in Order Sheet dated 1-7-2014 in O.S.
No.8053/2013 and Order dated 29-1-2008 passed in
order sheet dated 29-1-2008 in O.S.No.7928/1999,
O.S.No.7999/1999 and O.S.No.8053/2013 are
clubbed in O.S.No.7928/1999 and consequently,
common evidence is collected and common
Judgment is passed in respect of all the three cases,
in O.S.No.7928/1999.
5. The brief facts of the plaint averments in
O.S.No.7928/1999 are that:-
The Plaintiff and defendants 1 to 6 form Hindu
Joint Family and suit properties are the joint family
properties of plaintiff and defendants 1 to 6, since
defendant No.1 is the mother of plaintiff and of
defendants 2 to 6 and that, defendant No.7 and 8
are made as necessary parties to this suit, as they
have purchased Item No.7 property, from defendant
No.2, during pendency of this suit and that, the
father of plaintiff and defendants 2 to 6 had
purchased and acquired several immoveable and
moveable properties during his lifetime and has
executed a Will in favour of plaintiff and defendants
and that, after the death of father of plaintiff and
defendants 1 to 6, by name K.N.Kantharaj,
8 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
defendant No.1 being eldest of the family, took
control over the entire assets of the joint family, as
kartha and the defendant No.1 procastinated the
marriage of plaintiff on one or the other reasons and
after plaintiff got married, the defendant No.1
started asking dowry from in-laws of plaintiff, for
which the plaintiff had given complaint in the police
station and that, the father of plaintiff and defendant
No.1, by name K.N.Kantaraj, had started businesses,
like, M/s.Hanuman Industries and Stambhaja
Industries, which were continued by plaintiff and
defendants No.1 to 3, by forming a partnership firms
and later, defendants have started to carry out
businesses in different concern's names, leaving
aside the plaintiff, in respect of the said businesses
like Hanuman Industries and Stambhaja Industries
carried on by them under partnership deeds and
that, the defendants have refused and denied to give
share to the plaintiff, which he is entitled to the
extent of 1/4th share under the Will executed by his
father and hence, this suit for partition and separate
possession of his 1/4th share in the suit properties,
together with mesne profits and profits in the joint
family business and costs of the suit.
9 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
6. The brief facts of the plaint averments in
O.S.No.7999/1999 are that, the plaintiff and
defendants 1 to 6 form Hindu Joint Family, of whom,
defendant No.6 is the mother of plaintiff and
defendants 1 to 5 and that, the suit schedule
properties are the joint family properties of plaintiff
and defendants 1 to 6 and that, the plaintiff has got
1/7th share in all the suit schedule A to D properties
and that, the defendants have refused and denied to
give share to the plaintiffs in all the suit properties
on demand. Hence this suit for partition and
separate possession of his 1/7th share in all the suit
properties, together with costs and such other
reliefs, which Court deems fit.
7. The brief facts of the plaint averments in
O.S.No.8053/2013 are that, the defendant No.7 is the
mother of plaintiffs 1 and 2 and defendants 1 to 6
and that, suit schedule properties are the joint family
properties of plaintiff and defendants 1 to 7 and that,
the suit properties are in possession of defendants 1
to 7 and that, the defendants have refused and
denied to give share to the plaintiffs on demand.
Hence, this suit for partition and separate possession
of their share in the suit property, together with
profits in the joint family business carried on by the
defendants, together with costs and such other
reliefs, which Court deems fit.
10 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
8. O.S.No.7928/1999 is opposed by
defendants 1, 2 and 3 by filing their written
statement jointly, admitting their relationship with
plaintiff and other defendants. It is true that,
plaintiff is the brother of defendants 2 to 6 and it is
true that, defendant No.1 is the mother of plaintiff
and defendants 2 to 6 and contend that, suit
schedule Serial No.7 property is the self acquired
property of defendant No.2 as the same is allotted to
him by B.D.A. and thus, it is, it is his self acquired
property and he has sold the same to defendant 7
and 8 and defendants 7 and 8 have acquired
absolute ownership over the said property and these
defendants deny the execution of Will Deed by their
father-K.N.Kantaraj, during his life time and contend
that the suit properties are the joint family
properties of plaintiff and defendants 1 to 6 and on
these grounds, they pray for dismissal of this suit
with costs.
9. O.S.No.7928/1999 is opposed by
defendants 4, 5 and 6, by filing their joint written
statement wherein, these defendants admit their
relationship with plaintiff and defendants 1 to 3 and
they contend that, the suit schedule Sl.No.1 to 3 are
joint family businesses and that, they have denied
that their father had executed the Will deed,
bequeathing the suit properties in favour of
defendants 1 to 4 and they contend that, they have
11 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
also contributed to the family business and
therefore, they are also entitled to the share in the
suit properties and they have paid court fee to treat
their written statement as counter claim for giving
their respective shares in the suit properties.
10. Defendants 7 and 8 file their written
statement in O.S.No.7928/1999 wherein they
contend that, these defendants are concerned only in
respect of suit schedule site No.136 only. This suit is
filed in the year 1999. K.Anjaneya Murthy acquired
this property under registered sale deed dated
27-2-2001 and now these defendants are absolute
owners of said property and are in it's exclusive
possession having acquired under registered sale
deed dated 7-11-2002. Khata is registered in the
name of these defendants and they are paying
property tax. The plaintiff ought to have paid court
fee on the market value of the property to seek any
relief. The said property is the self acquired property
of Anjaneya Murthy and plaintiff or any member of
his family, has no right or title to it. It is not
acquired out of any joint family funds and plaintiff
has not contributed towards such acquisition. Hence,
these defendants pray for dismissal of this suit, with
exemplary costs.
12 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
11. O.S.No.7999/1999 is opposed by 1st
defendant by filing his written statement, wherein he
admits the relationship of plaintiff with defendants 1
to 6, but however he denies that suit properties are
the joint family properties of defendants 1 to 6 and
contends that, by virtue of Will Deed executed by his
father in favour of plaintiff and defendants 1, 3 and
6, only plaintiff and defendants 1 3 and 6 are
entitled to 1/4th share in the joint family businesses
and on this ground, he prayed for dismissal of suit.
12. O.S.No.7999/1999 is opposed by
defendants 2, 4 and 5 by filing their written
statement, wherein admit their relationship with
plaintiff and other defendants and contend that, all
the suit properties are the joint family properties of
plaintiff and defendants and that, they have
contributed to the family businesses and therefore,
they are also entitled to share in the suit properties
and on this ground, they pray for awarding their
respective shares in the suit properties.
13. O.S.No.7999/1999 is opposed by
defendants 3 and 6 by filing their written statement
wherein they admit their relationship with plaintiff
and other defendants and they admit that suit
properties are joint family properties of plaintiff and
defendants and contend that, they have got their
shares in suit properties and they pray for awarding
their 1/7th share in all the suit properties by metes
and bounds.
13 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
14. O.S.No.8053/2013 is opposed by 3rd
defendant by filing her written statement wherein
she contends that, the plaintiffs 1 and 2 are the
daughters of defendant No.7 and defendants 1 to 6
and plaintiffs 1 and 2 are daughters and sons of
defendant No.7 and that, the defendants were
carrying on joint family business and the father of
these plaintiffs, by name K.N.Kantaraj, had acquired
suit schedule properties and was carrying on joint
family businesses and after his demise, the plaintiffs
and defendants 1 to 7 have succeeded to his
properties by way of inheritance and that, they are
entitled to share in the suit properties and they
further contend that the defendants have denied and
refused to give share to the plaintiffs on demand and
on this ground, they pray for awarding their
respective shares in the suit schedule properties,
together with costs and mesne profits and for such
other reliefs, which Court deems fit.
15. O.S.No.8053/2013 is opposed by 4th
defendant by filing his written statement wherein he
contends that, "the Will dated 23-6-2089 is in the
possession of defendant No.7 and as per the
directions of the Hon'ble Court in O.S.No.7928/1999,
I am producing this Will which is marked as Ex.P94
and Hon'ble Court may be pleased to pass such
orders as deems correct, in the interest of justice
and equity."
14 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
16. O.S.No.8053/2013 is opposed by 5th
defendant by filing her written statement wherein,
the relationship between plaintiff and defendants is
admitted and that, the suit properties are the joint
family properties of plaintiffs and defendants 1 to 7
and hence, this defendant be awarded her respective
share in the suit properties. On this ground, prays
for decreeing the suit and to award her share in the
suit properties.
17. O.S.No.8053/2013 is opposed by 2nd
defendant by filing his written statement wherein he
contends that, the rights of plaintiffs 1 and 2 and
defendants 1 to 7 is clearly mentioned in the Will
dated 23-6-1989 executed by K.N.Kantaraj, being
father of plaintiffs 1 and 2 and also defendants 1 to 6
and therefore the Hon'ble Court may be pleased to
award share to the respective parties as per the said
Will executed by K.N.Kantaraj, on dated 23-6-1989.
18. On the basis of these rival contentions
taken by both parties, in all these suits following
Issues are framed. They are:
15 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
In O.S.No.7928/1999
1. Whether plaintiff proves that suit schedule
properties are the joint family properties?
2. Whether plaintiff proves that his father
K.N.Kantharaj executed a Will in favour of himself
and defendant Nos.1 to 3 and it was acted upon?
3. Whether defendant Nos.1 to 3 prove that suit is
bad for non-joinder of necessary parties?
4. Whether defendant Nos.1 to 3 prove that they
have also contributed their service towards the
joint family business?
5. Whether defendant Nos.4 to 6 are entitled for
1/7th share each in the written statement
schedule properties?
6. Whether plaintiff is entitled for 1/4th share in the
suit schedule properties?
7. What Decree or Order?
Additional Issues dated 10-11-2008 :
1. Whether the plaintiff proves that Item No.7 of the
suit schedule property is also a joint family
property of plaintiff and defendants 1 to 6?
2. Whether the defendants 7 and 8 prove that Item
No.7 is the self acquired property of defendant
No.2 ?
3. Whether the defendants 7 and 8 prove that they
have become absolute owners of Item No.7 by
virtue of sale deed dated 7-1-2002 executed in
their favour by 2nd defendant?
4. Whether the suit is properly valued and court fee
paid is sufficient?
16 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
In O.S.No.7999/1999:
1. Whether the plaintiff proves that the plaint A,
B and C suit schedule properties are the
properties acquired by his father Kantharaj out
of the ancestral property and that, plaint 'D'
schedule is his self acquired property?
2. Whether the 1st defendant proves that all the
plaint schedule properties are the self acquired
properties of deceased Kantharaj?
3. Does the 1st defendant proves that deceased
Kantharaj had executed a Will bequeathing all
the plaint schedule properties to the plaintiff,
1st defendant and 3rd and 6th defendants only
and appointed 6th defendant and 3rd as the
Executors of the Will?
4. Do the defendants 2, 4 and 5 - the daughters of
Kantharaj prove that they are also entitled for
a separate share each, in the plaint schedule
properties?
5. Whether the 1st defendant proves that the suit
is hit by the principles of res judicata under
Order 2 Rule 2 C.P.C.?
6. What final Order or decree?
In O.S.No.8053/2013:
1. Whether the plaintiffs prove that the schedule
properties are the undivided Joint Hindu
Family properties?
2. Whether the defendant No.2 proves the due
execution of Will dated 23-6-1989 by his
father?
3. Whether the plaintiffs are entitled for the
reliefs as prayed?
4. What decree or order?
17 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
19. The Plaintiff, to prove his case, examined
himself and two other witnesses as P.Ws.1 to 3 and
relied upon 115 documents marked as Exs.P1 to
P115.
Defendants to prove their case, examined three
witnesses as D.Ws.1 to D.W.3 and relied upon
Exs.D1 to D5 (marked through D.W.1) and Ex.D6
(through D.W.2) and Exs.D7 to D17 (through
D.W.3).
20. Heard the arguments of Learned Counsels
for both parties, in all these suits.
Plaintiff in O.S.No.7928/1999 filed written
arguments and relied upon citation.
Learned counsel for 4th defendant has filed
Written Arguments and relied upon citations.
21. My answer to the above Issues are as under:
in O.S.No.7928/1999:
Issue No.1 - partly in the Affirmative and
partly in the Negative;
Issue No.2 - in the Negative;
Issue No.3 - in the Affirmative;
Issue No.4 - in the Negative;
Issue No.5- in the Affirmative;
Issue No.6 - in the Negative;
Issue No.7 - as per Final Order below;
18 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
Addl. Issue No.1 - in the Negative;
Addl. Issue No.2 - in the Affirmative;
Addl. Issue No.3 - in the Affirmative;
Addl. Issue No.4 - in the Negative.
In O.S.No. 7999/1999:
Issue No.1 - in the Negative;
Issue No.2 - in the Negative;
Issue No.3 - in the Negative;
Issue No.4 - in the Affirmative;
Issue No.5 - in the Negative;
Issue No.6 - as per Final Order below;
in O.S.No.8053/2013:
Issue No.1 - in the Affirmative;
Issue No.2 - in the Negative;
Issue No.3 - in the Affirmative;
Issue No.4 - as per Final Order below;
for the following:
Reasons
22. Admitted facts are that, relationship
between plaintiff and defendants 1 to 6 is admitted
and it is also an admitted fact that BDA site No.136
is purchased by defendant No.2 and sold it to
defendants 7 and 8 of O.S.No.7928/1999, during the
pendency of suit.
19 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
23. Issue Nos. 1 and 2 in O.S.No.7928/1999:
For the sake of convenience and to avoid
repetition of facts and as these Issues are inter-
connected and inter-linked, these Issues are taken
up together for common consideration.
24. The plaintiff contends that, suit schedule
properties are the joint family properties of plaintiff
and defendants and his father-K.N.Kantharaj
executed a Will Deed (Ex.P94) in favour of plaintiff
and defendants 1 to 3 on dated 23-6-1989.
25. To prove these facts, plaintiff, who is
examined as P.W.1, reiterates the same facts and
relies upon Ex.P94 - unregistered Will Deed dated
23-6-1989 and copy of registered sale deeds marked
at Exs.P2 to P4, and plaint in O.S.No.7999/1999,
which is suit for partition and separate possession
26. In O.S.No.7999/1999, filed by 3rd
defendant of O.S.No.7928/1999, he contends that,
suit schedule properties shown at Sl.Nos.3A, 3B, 4, 5
and 8 (of O.S.No.7928/1999) are the joint family
properties of family of plaintiff and defendants 1 to 6
(of O.S.No.7928/1999) and plaintiff admits in para
11 of his plaint that, defendants 1 to 3 have started
business in the said suit properties in different
names. This contention of plaintiff in para No.11 of
his plaint that, defendants 1 to 3 started business in
different names, is evident on perusal of Ex.P43-
20 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
certified copy of I.A. filed by defendant No.1 under
Order 39 Rules 1 and 2 C.P.C. in O.S.No.7754/1999
and Ex.P44 - certified copy of order on I.A. under
Order 39 Rules 1 and 2 C.P.C. passed by the Court in
O.S.No.7754/1999 that, defendants 1 and 2 have
started running business in the suit schedule
properties shown at Sl.Nos.3A and 3B in different
names. The combined effect of recitals in plaint para
11 and recitals in Exs.P43 and P44, it goes to show
that, business shown at suit schedule Sl.Nos.1 to 3
are not existing at present. Further, plaintiff has not
shown by any documents about the existence and
continuation of Hanuman Industries, Stambhaja
Industries and Pavan Apparels, even on today, on
the suit schedule premises, shown at Sl.Nos.3A and
3B.
27. The plaintiff contends that, property
shown at Sl.No.7, i.e., site No.136, purchased by
defendant No.1 and later sold to defendant No.7 and
8 under registered sale deed, is joint family property
of plaintiff and defendants 1 to 6.
28. The plaintiff, who is examined as P.W.1
admits in para 25 of his evidence that, "it is true to
suggest that, it was allotted in the name of defendant
No.2 only. Witness volunteers: but joint family income
has been used to acquire the said site. It is not true to
suggest that there was no such amount used and I am
21 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
deposing falsely. I do not know how much of amount
was paid by defendant No.2 towards the said site. I do
not know which money was paid and from whose
account for BDA site. It is true to suggest that BDA had
handed over possession of BDA site to defendant No.2
separately. Witness volunteers: it was in the year
2001. It is true to suggest that in his individual name
only the said BDA site was registered." Further,
plaintiff has not produced any iota of evidence to
show that, the said property, i.e., site No.136 shown
at Sl.No.7 of suit schedule, is joint family property of
plaintiff and defendants, purchased by defendant
No.2 from joint family funds.
29. The plaintiff contends that, his father
K.N.Kantharaj has executed a Will deed in favour of
plaintiff and defendant 1 to defendant 3,
bequeathing suit business shown at Sl.Nos.1 and 2
of suit schedule. To substantiate this contention,
plaintiff relies upon Ex.P94 - original Will Deed dated
23-6-1989. In order to prove this Will, plaintiff
examined both attesting witnesses of Ex.P94 and
P.W.2 and P.W.3, who have deposed about execution
and attestation of said Will by father of plaintiff in
favour of plaintiff and defendants 1 to 3 in respect of
suit item No.1 of schedule property.
22 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
30. Ex.P94-Will Deed, is not accepted as valid
document, since testator, being father of plaintiff,
states in para 3 and para 4 of it as under :
"3. I hereby GIVE, DEVISE AND BEQUEATH my
share in the aforesaid properties of my Joint
Family to my wife Smt.K.Mahalakshmamma,
who shall hold and own these properties
absolutely without any let or hindrance from
anybody as co-owner along with my Joint family
co-parceners and after her demise these
properties shall go to and devolve on my 3 sons,
K.Anjaneyamurthy, K.Krishnamurthy and
K.Radhakrishna absolutely and my 3 sons shall
hold these properties as the properties of their
respective Joint family consisting of themselves
as Kartha and their wifes (as and when they
marry) and their children (as and when they are
born) as the other members of their respective
Joint families. The aforesaid Joint family owes
some liabilities to various others and these
liabilities are to be discharged by the Joint
family.
4. I carry on the business under the
name and style of M/s.HANUMAN INDUSTRIES, at
No:A-69, Rajajinagar Industrial Estate,
BANGALORE-44, which is my exclusive and
separate property and this property belongs to
the Joint family of which I am the kartha and
23 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
my wife as the other member to the exclusion
of my sons who are divided partially in respect
of these aspects. The business is being carried
on in the Industrial shed No:A-69, Rajajinagar
Industrial Estate, BANGALORE-44 owned by me. I
hereby GIVE, DEVISE AND BEQUEATH the business
of M/s.HANUMAN INDUSTRIES, along with
Industrial shed Plant & Machinery and other
business assets the goodwill, etc., and all the
other liabilities pertaining to business to my
wife and 3 sons jointly to be held by them as co-
owners as among themselves in equal shares.
My sons shall hold the property as the property
belonging to their respective joint family
consisting of themselves as the Kartha and
their wifes (as and when they marry) and their
children (as and when they are born) as the
other members."
31. On going through these recitals in Ex.P94,
it goes to show that, in one breath he says that, suit
business, i.e., Hanuman Industries, is his exclusive
and separate property and in another breath he
states that, it is joint family business of which he
(testator) is kartha of joint family. In view of these
contradictory recitals in Ex.P94-Will Deed stated by
testator, the same is not accepted to give an effect
to it.
24 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
32. The Plaintiff has not produced any iota of
evidence to show the properties shown at Sl.No.6,
moveable properties, are in existence and they are
joint family properties of plaintiff and defendants 1
to 6.
33. The Plaintiff, who is examined as P.W.1,
contends and admits that, he received Rs.40,000/-
and each of defendants 2 and 3 received Rs.40,000/-
and each daughter of Kantharaj received Rs.20,000/-
under partition dated 1-4-1975. But, he has not
produced any iota of evidence to show alleged
partition of 1-4-1975.
34. The Plaintiff, who is examined as P.W.1,
admits in para 44 of his evidence that, Yashoda and
Lakshmi are his sisters and they are not shown as
parties in this suit.
35. Thus, excluding Hanuman Industries,
Stambhaja Industry and Pavan Apparels and site
No.136 of B.D.A. allotted to defendant No.2, and
moveable properties, shown at Sl.Nos.1, 2, 3, 6 and
7 of suit schedule, other properties shown at
Sl.Nos.3A, 3B, 4, 5 and 8 of suit schedule, are held
to be joint family properties of plaintiff, defendants 1
to 6, Yashoda and Lakshmi.
36. Accordingly, I hold Issue No.1 partly in
Affirmative and partly in Negative and Issue No.2 in
Negative.
25 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
37. Issue No. 3 in O.S.No.7928/1999: The
defendants 1 to 3 contend that, the suit is bad for
non-joinder of necessary parties. In order to
substantiate their contention, they have relied upon
the admission of plaintiff, who is examined as P.W.1
in this case. He admits in his evidence that, Yashoda
and Lakshmi, who are not parties to this suit, are
also the sisters of plaintiff and defendants 2 to 6. In
view of this admission given by P.W.1, it can be said
that, these sisters of plaintiff by name Yashoda and
Lakshmi are not arrayed in this suit as necessary
parties. Hence this suit is bad for non-joinderr of
necessary parties. Accordingly, I hold this Issue in
the Affirmative.
38. Issue No. 4 in O.S.No.7928/99: The
defendants 1 to 3 contend that, they have also
contributed their services towards the joint family
business. But, in order to substantiate this
contention, they have neither examined into Court
nor they have produced any iota of evidence.
Therefore, in the absence of any evidence on record,
it can be said that, they have failed to prove this
Issue to the effect that, they have contributed their
service towards the joint family business.
Accordingly, I hold Issue No.4 in the Negative.
26 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
39. Issue No.5 in O.S.No.7928/99: The
Defendants 4 to 6 being sisters of plaintiff, submit in
their written statement that, being daughters of
K.N.Kantaraj, they are also entitled to succeed to the
properties acquired by K.N.Kantaraj and thus, the
plaintiff and defendants 1 to 6 are entitled to 1/7th
share. Accordingly, I hold this Issue in the
Affirmative. But, however having regard to the fact
that, Yashoda and Lakshmi being other sisters of
these defendants 4 to 6, are also entitled to one
share each, as that of their brothers and sisters,
including their mother and therefore, these
defendants 4 to 6, Yashoda, Lakshmi, plaintiff and
defendants 1 to 3, are each entitled to 1/9th share in
the suit schedule properties.
40. Issue No.6 in O.S.No.7928/1999: The
plaintiff contends that, he is entitled to 1/4th share in
the suit schedule properties. But, having regard to
my answer to Issue No.2 of this suit that, the Will
cannot be considered for the purpose of distributing
shares to the parties, i.e. to the beneficiaries under
the Will, I hold that, the plaintiff is not entitled to
1/4th share under the said Will, said to have been
executed by his father K.N.Kantaraj, in favour of
plaintiff and defendants 1 to 3. Hence, this Issue is
held in the Negative.
27 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
41. Addl. Issue No.1 in O.S.No.7928/1999: In
view of my answer to Issue No.1 and 2 of this suit
stated above, I hold that, suit schedule Item No.7 is
the self acquired property of defendant No.2. Hence,
I hold that plaintiff has failed to prove that, Item
No.7 of suit schedule property is joint family
property of plaintiff and defendants 1 to 6.
Accordingly, I hold this Additional Issue No.1 in the
Negative.
42. Addl. Issue No.2 in O.S.No.7928/1999: In
view of my answer to Issue No.1, 2 and Additional
Issue No.1, I hold this Additional Issue in the
Affirmative.
43. Addl. Issue No.3 in O.S.No.7928/1999: In
view of my answer to Issue N.1 and 2 and Additional
Issue Nos.1 and 2, I hold that, the defendant 7 and
8 have become absolute owners of item NO.7 by
virtue of sale deed dated 7-1-2002 executed in their
favour, by 2nd defendant. Accordingly, I hold this
Additional Issue No.3 in the Affirmative.
44. Additional Issue No.4 in O.S.No.7928/1999:
The plaintiff has not adduced any evidence nor
pressed for proving this Issue. Hence, this Additional
Issue No.4 is held in the Negative.
28 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
45. Issue No.1. in O.S.No.7999/99: The
plaintiff contends that, plaint A, B and C schedule
properties are the properties acquired by his father
Kantaraj, out of ancestral properties and D-schedule
property is his self acquired property. In order to
substantiate this contention, the plaintiff has not
produced any iota of evidence, either oral or
documentary. Therefore, in view of the fact that, he
has failed to produce any evidence, this Issue is held
in the Negative.
46. Issue No.2 in O.S.No.7999/99: The
Defendant No.1 contends that, all the plaint schedule
properties are the self acquired properties of
deceased Kantaraj. In order to substantiate this
contention, he has examined himself as P.W.1 in
O.S.No.7928/1999, wherein he has admitted that,
the suit properties are acquired by his father, out of
profits earned by joint family businesses, such as
Hanuman Industries run by his father K.N.Kantaraj,
during his life time. Therefore, in view of this
admission, I hold that, the defendant No.1 has failed
to prove that, all the plaint schedule properties of
this suit are the self acquired properties of deceased
Kantaraj. Accordingly, Issue No.2 is answered in the
Negative.
29 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
47. Issue No.3 in O.S.No.7999/1999: First
defendant contends that his father, by name
Kantaraj, during his lifetime, executed a Will Deed,
bequeathing all the plaint schedule properties to the
plaintiff, 1st defendant, 3rd defendant and 6th
defendants, only and appointed 3rd and 6th defendant
as executors of the Will. In order to substantiate this
contention, defendant No.1, who is examined as
P.W.1, has produced Ex.P94- original Will Deed, said
to have been executed by his father, in favour of
plaintiff, defendant No.1, 3 and 6 in respect of
business of Hanuman Industries, pertaining to joint
family property. But although, this defendant has
examined both the attesting witnesses of said Will
deed, however, in view of contradictory recitals in
Ex.P94-Will Deed, the said Will Deed is not accepted
by me, for giving effect to the partition between the
parties on the basis of said Will, on the ground that,
said Will is not specific. Therefore, I hold this Issue
No.3 in the Negative.
48. Issue No.4 in O.S.No.7999/99: In view of
admission by 1st defendant and other defendants in
their evidence and written statements that,
defendants 2, 4 and 5 are their sisters and in view of
my conclusion that, suit serial Nos.3A, 3B, 4, 5 and 8
are the only suit schedule properties available for
partition, I hold that, these defendants 2, 4 and 5
are also entitled to their respective shares in the suit
30 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
properties. Accordingly, I hold this issue in the
Affirmative.
49. Issue No.5 in O.S.No.7999/99: The
Defendant No.1 contends that suit is hit by principles
of res judicata. But, in order to substantiate this
contention he has not produced the earlier Judgment
disposed on merits, between the same parties or
between their heirs, in respect of same properties
and in respect of same relief, so as to hold that this
suit is barred by res judicata. Accordingly, this Issue
is held in Negative.
50. Issue No.1 in O.S.No.8053/13: In view
of my answer to Issue No.1 in O.S.No.7928/99,
I hold this Issue in the Affirmative.
51. Issue No.2 in O.S.No.8053/13: In view
of my answer to Issue No.2 in O.S.No.7928/99,
I hold this Issue in the Negative.
52. Issue No.3 in O.S.No.8053/13: In view
of my answer to Issue No.5 in O.S.No.7928/99,
I hold this Issue in the Affirmative.
53. Learned Counsel for the plaintiff in
O.S.No.7928/1999 has relied upon the citations
(B.Ramesh Vs. Lalitha and others) reported in 2011(4)
KCCR 3076(DB) wherein Head Note B reads as
under:
31 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
"B. Succession Act, 1925-Section 63-
Evidence Act, 1872-Section 58-Will-Exectuion
of the Will by the father in respect of Item
Nos.2 and 3 of the suit schedule properties-
Plaintiffs have taken benefit under the Will and
acted on it-Later claim for partition in the
properties bequeathed in favour of the 1st
defendant by their father during his lifetime
without disclosing the existence of the Will or
challenging the same-Held, the Trial Court
erred in holding that the 1st defendant ought
to have proved the Will and decreeing the suit
for partition in respect of those properties
also. Held, the suit filed by the
daughters/plaintiffs for partition in Item Nos.2
and 3 of the suit schedule properties was not
maintainable."
54. Learned Counsel for the 4th defendant in
O.S.No.7928/1999 has relied upon the following
citations:
1). Sri.J.T.Surappa and another vs.
Sri.Saatchidhananddendra Saraswathi Swamiji Public
Charitable Trust and others reported in ILR 2008 Kar.
2115, wherein it is held that:
" (A) INDIAN SUCCESSION ACT, 1925-Sectin
2(h)-Will-Proof of-Legal requirements-Duty of
the Court-Five steps to be considered-HELD,
Under the Act, the Will to be valid, should be
reduced into writing, signed by the testator
and shall be attested by two or more
witnesses and at least one attesting witnesses
shall be examined. If these legal requirements
are not founds, in the eye of law there is no
Will at all. Therefore, the first step is that if the
documents produced before the Court prima
facie do not satisfy these legal requirements,
the Court need not make any further enquiry,
32 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
in so far as its due execution is concerned and
can negative a claim based on the said
document-FURTHER HELD, The second step is
that when the legal heirs are disinherited, the
Court has to scrutinize the evidence with
greater degree of care than usual-The third
step would be to find out whether the testator
was in a sound state of mind at the terms of
executing the Will-The fourth step would be to
find out whether there exists any suspicious
circumstances surrounding the execution of
the Will-The fifth step is to consider whether
the Will that is executing is in accordance with
Section 63 of the Act read with Section 68 of
the Evidence Act.
(B) INDIAN SUCCESSION ACT, 1925-SECTION
63 R/W SECTION 68-Execution of a Will under-
Attestation and Execution-Procedure-HELD,
The Will that is executed is in accordance with
Section 63 of the Act read with Section 68 of
the Evidence Act. The Will is a document
required by law to be attested. The execution
of Will must include both execution and
attestation. "Attestation" and "execution" are
different acts, one following the other. There
can be no valid execution without due
attestation, and if due attestation is not
proved, the fact of execution is of no avail-The
Court has to find out whether the Will bears
the signature of the testator and the said
signature is placed at a place with the
intention of giving effect to the Will. Further
the said Will has been attested by two
witnesses and whether the witnesses have
seen the testator affixing his signature to the
Will in their presence and if not at least they
receive from the testator a personal
acknowledgment of his signature or mark and
each of them shall sign the Will as attesting
witness in the presence of the testator though
it shall not be necessary that both of them
should be present at the same time-FURTHER
HELD, Section 68 of the Evidence Act deals
with proof of execution of documents required
33 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
by law to be attested. A Will is a document
which requires to be attested under Section
63(c) of the Act. Therefore, the said document
shall not be used as evidence until at least one
attesting witness has been called for the
purpose of proving its execution, if there be
an attesting witness alive and subject to the
process of the Court and capable of giving
evidence. Whether such a Will is registered or
not registered, in the eye of law it makes no
difference. Even if the said Will is registered
under the provisions of the Indian Registration
Act, 1908, whether the execution of the Will is
admitted or denied, it is necessary to call an
attesting witness in proof of the execution of
the said Will. Under no circumstances the
proof of execution of the Will is dispensed
with in law-It is only after the Court is satisfied
that all these tests are successfully passed, the
Court can declare that Will is executed in
accordance with law, as such it is valid and
enforceable.
(C) INDIAN SUCCESSIN ACT, 1925-SECTION
63- Execution of unprivileged Will-Tree rules to
be the complied with-HELD, The first Rule is
the said Will should be signed by the testator.
If he is incapable of signing his mark is to be
affixed. If some other person is signing the
Will, the other person shall affix his signature
in the presence of the testator and on his
direction. Therefore, it is mandatory that the
Will should contain the signature or mark to
authenticate the same, without which it cannot
be said to be the Will of the testator-The
second rule is the signature or the mark shall
be so placed on the Will, that it shall appear
that it was intended thereby to give effect to
the writing as a Will-The signature of the
testator may be found on all pages at the end
also. According to sub-section (b) the
signature need not necessarily be at the end of
the Will. It does not matter in which part of
the Will the testator signs. If a Will is written
on several sheets of paper, with all sheets
34 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
severally signed, one signature on the last
sheet made with the intention of executing the
whole is sufficient-Mere signature found on
the Will at some place is not sufficient. If the
signature is found at some place of the page
and it does not appear that such a signature
was put with any such intention or giving
effect to the Will, then the signature or mark
has no value. The test is whether the said
signature found on the will conveys the
intention of the testator to give effect to the
writing as a Will-The third rule is the Will
requires attestation by two or more witnesses.
Attestation means the persons, who have
affixed their signature as attesting witness,
saw the executant, (in the case of a Will a
testator), sign or affix his mark to the
instrument-Not only the attesting witness
should sign the Will in the presence of the
testator, but they should also see with their
eyes the testator signing the instrument or if
they are not present at the time of signing the
instrument, the testator should acknowledge
to them his signature or mark to the said
instrument.
(D) INDIAN SUCCESSIN ACT, 1925-CLAUSE
(C) OF SECTION 63 -Requirement of due
attestation to prove the Will-HELD, To prove
due attestation under Section 63(c) it is open
to the propounder of the Will to examine a
person who was present at the time of
attestation, who saw the testator
acknowledging to such attesting witness who
was not present at the time of the testator
affixinghis signature to the Will,
acknowledging his signature or mark and then
the attesting witness signing the Will in the
presence of the testator. That would meet the
requirement of clause (c) of Section 63. If an
attesting witness is not present when the
testator affixed his signature and if the
testator does not acknowledge his signature
to the said attesting witness, before the
attesting witness affixes his signature to the
35 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
Will, then this requirement of law is not
fulfilled and the Will is not proved. In those
circumstances, if the other attesting witness is
not examined or other evidence is not
adduced regarding due attestation, the
requirement of Section 63(c) is not complied
with, Will is not proved-ON FACTS, HELD,
Evidence on record clearly discloses that
testator was not in a sound state of mind at
the time when the Will come into existence
and it has come into existence under
suspicious circumstances-The propounder of
the Will has failed to remove the suspicious
circumstances-Petitioners are not entitled to
the letters of administration sought for."
2). V.K.Surendra vs. V.K.Thimmaiah and others
reported in 2013 AIR SCW 3444, wherein it is held
as under:
" Hindu Law-Joint family property-Partition
sought by daughters of her father's property
claiming it to be his self-acquired property-
Evidence showing that suit property was
purchased by sale of grandfather's property-
Suit property was therefore joint family
property-No evidence that family property was
ever partitioned between father and his sons-
Claims of one of sons that suit property was
bequeathed to him by Will-Also untenable as
father could not have changed nature of
property and give it by Will or gift-Held father
and his sons would get equal share in suit
property-And share of father would get equally
divided between sons and daughters."
55. The principles stated in the above cited
decisions is followed by me.
36 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013
56. Issue No.7 in O.S.No7928/1999;
Issue No.6 in O.S.No7999/99 and
Issue No.4 in O.S.No8053/2013:
In view of the fact that, the plaintiff (in
O.S.No.7928/1999) and defendants 1 to 6 (in
O.S.No.7928/1999) and the sisters of plaintiffs by
name Yashoda and Lakshmi, together form Hindu
joint family and that, suit item No.3A 3B 4, 5 and 8
are the only joint family properties available for
partition, I hold that, the plaintiffs, these defendants
1 to 6, Yashoda and Lakshmi, are entitled to 1/9th
share each in the suit schedule properties, shown as
Sl.Nos. 3A, 3B, 4, 5 and 8.
54. Accordingly, in view of the foregoing
reasons and in the result, I proceed to pass the
following:
ORDER
Suit of the plaintiff in O.S.No.7928/99 is dismissed.
Suit of the plaintiff in O.S.No.7999/99 is allowed in part.
The plaintiff and defendants No.1 to 6, Yashodha and Lakshmi are entitled to 1/9th share each in suit properties of this suit.
37 O.S.No.7928/1999c/w.O.S.Nos.7999/1999 and 8053/2013 The suit of the plaintiffs No.1 and 2 in O.S.No.8053/2013 is allowed in part.
The plaintiffs No.1 and 2 and defendants No.1 to 7 are entitled to 1/9th share each in suit schedule properties of O.S.No.7999/1999.
There shall be a separate enquiry in respect of mesne profits claimed by the plaintiffs No.1 and 2 in O.S.No.8053/2013.
Parties in all the suits shall bear their respective costs.
Draw Preliminary Decree accordingly in respect of O.S.No.7999/1999 and O.S.No8053/2013.
x Keep the original of this judgment in O.S.No.7928/1999 and copies thereof in O.S.No.7999/1999 and O.S.No.8053/2013.
(Dictated to the Judgment Writer, computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 29th day of April 2015.) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.
38 O.S.No.7928/1999c/w.O.S.Nos.7999/1999 and 8053/2013 ANNEXURE List of witnesses examined for the plaintiff:
in all the three suits:
P.W.1 K.Krishnamurthy P.W.2 U.Vasudeva Maliya P.W.3 S.Ramesh
List of witnesses examined for defendants:
in all the three suits:
D.W.1 P.S.Nathan D.W.2 Rajeshwari D.W.3 Lakshmi
List of documents exhibited for the plaintiff: in all the three suits:
Ex.P1- Death Certificate of Kantharaj (Date of Death is 7-3-1990) Exs.P2 to P4 - Copies of registered sale deeds dated 7-11-1973, 23-12-1974 and 31-3-1984 Ex.P5- registered Partnership Deed dated 26-3-1990 Ex.P6 - Register of Firms in Form-A in respect of Hanuman Industries Ex.P7- Lease-cum-sale agreement deed dtd.20-9-94 Ex.P8 - copy of registered sale deed dtd.15-6-1995 Ex.P9 - copy of registered sale deed dated 27-2-2001 executed by BDA in favour of defendant No.2 in respect of Site No.136 39 O.S.No.7928/1999 c/w.O.S.Nos.7999/1999 and 8053/2013 Ex.P10- Trading Account of M/s.Hanuman Industries for 1-4-1989 to 6-3-1990.
Ex.P11 - capital account extract for the period between 9.3.90 and 31.3.90 of D1, D2, plaintiff, D3, in Hanuman Industries.
Exs.P12 to P14 - statement of wealth of Hanuman industries and M/s:Kantharaj Estate and his partner.
Ex.P15 - letter issued by SBI Exs.P16 - Letter issued by Anjanadri foundations to the Commissioner of Income tax along with balance sheet Ex.P17 - Certificate issued by I.T.Office Exs.P18 & P19-Certificate u/s.197 of IT Act and copies of the letters written to Asst.Revenue Officer Ex.P20 - copy of letter of Deputy Chief Manager, Small Scale Industries Ex.P21 - endorsement issued by BCC Ex.P22 - copy of partnership deed Ex.P23 - copy of ledger from Registrar of Firms Exs.P24 to P26- copy of balance sheet for the year 1972 with annexure, copies of form No.29.
Ex.P27 & P28- valuation of site No.1088 and statement of wealth for 1978 Exs.P29 to P31- acknowledgement issued by P.N.S.Murhty & Co., Exs.P32 to P39- counterfoil of SBI, Bank passbooks Ex.P40 -endorsement issued by ACTO 40 O.S.No.7928/1999 c/w.O.S.Nos.7999/1999 and 8053/2013 Ex.P41- copy of letter given to Joint commissioner of Commercial Taxes Exs.P42 to P44- copy of order sheet, Application u/O. 39 R.1 & 2 CPC and Orders on IA No.1 in O.S.No.7754/99 Ex.P45- order sheet in Misc. 368/08 Exs.P46 & P47- Order in CMP 44/00 passed by Hon'ble High Court of Karnataka Ex.P48- Letter to the Registrar General, Hon'ble High Court of Karnataka, by the Arbitrator Exs.P49 to P71- Orders in AS 4/06, AS 5/03, AC 2/02 application in AC 3/02, order sheet and order in Ex.33/06; order sheet and orders in Ex.634/06; order sheet and Orders in AC 2/06; order sheet and orders in AC 3/06;
objections filed to amendment application and List of documents, written arguments, order sheet in OS 7999/99; orders in CMP by HHCK in No.19/07, order sheet in WP 15667/07 etc. Exs.P72 & P73 - letters by Radhakrishna to the Arbitrator Ex.P74- copy of statement of Krishnamurthy Exs.P75 & P76- copy of FIR, charge sheet Ex.P77- statement of Krishna Murthy in CC 16703/02 Exs.P78 to P81- copy of indemnity bond, affidavits Exs.P82 & P83- copy of Will executed by K.N.Kantharaj; letter addressed to ACCT by partners of Hanuman and Sthambaja Industries and other documents with endorsements and documents produced by CTO to the court on 24.11.2009, including registration certificate produced by CTO 41 O.S.No.7928/1999 c/w.O.S.Nos.7999/1999 and 8053/2013 Exs.P84 to P90 - letters written by ACCT, Bangalore, by BBMP, assessment extracts, certificate issued by BBMP, letter addressed by BBMP Ex.P91- Memo filed by Chartered Accountant to the court and true copies of his documents Ex.P92 - copy of Will from KSSIDC Ex.P92(a) -signature of P.W.2 Exs.P92(b) to (d) -Signature of K.N.Kantharaj Ex.P92(e) -signature of P.W.3 Ex.P93 - c.c. of sale deed dated 7.11.2002 Ex.P94 -Will dated 23-6-1989 Exs.P95 & P96 - c.c. of sale deeds dated 15-6-1995 Exs.P97 toP99 -delivery challan and invoices of M/s.Amco batteries and Hanuman Industries;
Ex.P100- Letter dated 28.2.1984 Exs.P101 & P102- Demand notices Ex.P102A -income tax paid acknowledgement Ex.P103- Statement of income of Yashodha for 1976-77 Ex.P104- Capital account of Yashodha Ex.P105- Statement of account of Lakshmi Ex.P106- Statement of income of Lakshmi Ex.P107 - Statement of wealth for the year ending 31.3.1990 of Lakshmi Ex.P108- Income tax department letter to K.Lakshmi Exs.P109 & P110 - Letters written to Deputy Chief Manager, Industrial Estate Ex.P111- Pass book of Yashodha.K Exs.P112 to P114- Discharge summary of K.Krishnamurthy Ex.P115- Purchase order of Amco Batteries issued to Hanuman Industries 42 O.S.No.7928/1999 c/w.O.S.Nos.7999/1999 and 8053/2013 List of documents marked for defendants:
in all the three suits in all the three suits:
Ex.D1 - certified copy of sale deed dated 27.2.2001. Ex.D2- Certified copy of sale deed dated 7.11.2002 Ex.D3- Original khata extract Ex.D4- Khata extract Ex.D5- Tax paid receipt Ex.D6 -certified copy of sale deed dated 27-1-1975 Ex.D7- certified copy of sale deed dated 17.11.1973 Ex.D8- Certified copy of sale deed dated 23.12.1974 Ex.D9- Certified copy of sale deed dated 31.3.1984 Ex.D10- Certified copy of sale deed dated 15.6.1995 Ex.D11- Certified copy of sale deed dated 15.6.1995 Exs.D12 & D13- Succession Certificates Ex.D14- Khata certificate Ex.D15- Khata extract Ex.D16 - certified copy of partition deed dated 4-12-1942 Ex.D17 - certified copy of partition deed dated 29-9-1954 (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.
Common Judgment in O.S.No.7938/1999 c/w. O.S.No.7999/1999 and O.S.No.8053/2013 passed and pronounced in Open Court. (vide separate). Operative portion thereof reads as under:
Suit of the plaintiff in O.S.No.7928/99 is dismissed.43 O.S.No.7928/1999
c/w.O.S.Nos.7999/1999 and 8053/2013 Suit of the plaintiff in O.S.No.7999/99 is allowed in part.
The plaintiff and defendants No.1 to 6, Yashodha and Lakshmi are entitled to 1/9th share each in suit properties of this suit.
The suit of the plaintiffs No.1 and 2 in O.S.No.8053/2013 is allowed in part.
The plaintiffs No.1 and 2 and defendants No.1 to 7 are entitled to 1/9th share each in suit schedule properties of O.S.No.7999/1999.
There shall be a separate enquiry in respect of mesne profits claimed by the plaintiffs No.1 and 2 in O.S.No.8053/2013.
Parties in all the suits shall bear their respective costs.
Draw Preliminary Decree accordingly in respect of O.S.No.7999/1999 and O.S.No8053/2013.
x Keep the original of this judgment in O.S.No.7928/1999 and copies thereof in O.S.No.7999/1999 and O.S.No.8053/2013.
XXII A.C.C. & S.J., Bengaluru.