Bangalore District Court
Puspalatha Alias Latha vs Raju on 17 April, 2025
KABC010158442013
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 17th Day of April, 2025
Present: Smt.Preeti Sadguru Sadarjoshi,
B.A., LL.B.
XVII Addl. City Civil & Sessions Judge, Bengaluru.
O.S.No.3620/2013
Plaintiff/s : Smt. Pushpalatha @ Latha
D/o late Narasimhamurthy,
W/o Suneel,
Aged about 47 years,
No.1320, 7th Main, II cross,
WCR, Mahalakshmipuram,
Bengaluru - 86.
(By Sri.Deshpande S.R. Advocate )
-Vs-
Defendant/s : 1. Sri.Raju
S/o late Narasimhamurthy,
Aged about 45 years.
2. Sri.Venkatesh
S/o late Narasimhamurthy,
Aged about 43 years.
2
O.S.No.3620/2013
3. Smt.Kalpana
W/o late Babu,
Aged about 40 years,
4 Smt.Ganga
W/o late Ramesh
Aged about 42 years,
(Dead)
5 Kum. Priya
D/o late Ramesh
Aged about 24 years,
All are residing at No.551,
3rd Main Road, Opposite
Mahalakshmipuram police station,
West of Chord Road,
Mahalakshmipuram,
Bengaluru-560086.
(D.1 , 2 & 5 by Sri.B.N.T. advocate
D.3 -Sri.V.G.R., advocate,
D.4- Dead,
Date of institution of the suit 23.05.2013
Nature of the suit Partition
Date of commencement of 06.06.2013
recording the evidence
Date on which the judgment 17.04.2025
was pronounced
Total duration Years Months Days
11 10 24
3
O.S.No.3620/2013
JUDGMENT
During pendency of proceedings, amendment was carried out and amended plaint was furnished. This is a suit for partition and separate possession to allot 1/5th share to the plaintiff in the suit schedule property and put her in possession of the same. The suit schedule property is mentioned below:-
SCHEDULE All the piece and parcel of the property bearing No.551, measuring East to West 60 feet and North to South 40 feet, consisting RCC House, ward No.14, Nagapura, 3rd Main Road, West of Chord Road, II Stage, Mahalakshmipuram, Bengaluru and bounded on:-
East By : Road, West By : Property of Laxman, North By : Property of Venkatesh, South By : Property of Reddy.
2. The case of the plaintiff in brief is as follows:-
The plaintiff averred that Mr.Narshimha Murthy was the propositus of the family having 6 children namely Smt.Vijayakala, Mr.Babu, Mr.Ramesh, Smt.Pushpalatha, 4 O.S.No.3620/2013 Mr.Raju and Mr.Venkatesh. Among them Smt.Vijayakala, Mr.Babu and Mr.Ramesh are no more. Smt.Vijayakala died as spinster. Mr.Babu died leaving behind his wife Smt.Kalpana i.e. the defendant No.3. Mr.Ramesh died leaving behind his wife and daughter i.e. the defendants No.4 and 5. The joint family of the plaintiff and that of the defendants has purchased property bearing No.551, situated at 3rd Main Road, WCR, Mahalakshmi Layout, Bengaluru under sale deed dated 08.11.1974 from CITB which is herein after referred to as suit schedule property. The joint family acquired the suit schedule property out of the income of late Mr.Narasimha Murthy in the name of late Smt.Vijayakala. The defendants No.1 and 2 were minors when the property was acquired. Thereafter, house was constructed by joint efforts of late Smt.Vijayakala, her father and the plaintiff. The plaintiff has invested her earnings as she used to act in dramas along with Smt.Vijayakala and so also money which she 5 O.S.No.3620/2013 had derived out of acting in more than 10-15 films till her marriage. The mother of the plaintiff namely Smt.Renukamma had invested her money which she has earned out of producing Kannada films like Prema Mandira, Diamond Secret and even she has invested money which she has got by way of subsidy amount granted by the government to those films. The father of plaintiff has retired from service during 1979. The defendants No.1 and 2 have not at all contributed anything towards either of suit property or towards construction of existing building. The defendant No.2 taking undue advantage of the fact that the suit schedule property was standing in the name of Smt.Vijayakala has clandestinely trying to gulp the same and it is learnt that the defendants No.1 and 2 are trying to alienate the suit schedule property to third parties. Suit schedule property being joint family property, the plaintiff is entitled to legitimate share in the suit schedule property. In this 6 O.S.No.3620/2013 regard, the plaintiff has issued legal notice on the defendants No.1 and 2. The defendants No.1 and 2 have given vague reply stating that late Smt.Vijayakala alleged to have executed a Will bequeathing the suit schedule property in their favour. On verification of records, it is revealed that there was Will as alleged in the reply and the Khatha of the property stands in the name of late Smt.Vijayakala only, till filing of suit. Only to deprive the legitimate share of the plaintiff, the defendants have done so. Late Smt.Vijayakala had no exclusive right over the suit schedule property. As such, the alleged Will said to have been executed by the defendants is not binding on the right of the plaintiff. Hence, the plaintiff prayed to decree the suit by allotting 1/5th share to the plaintiff.
3. On proper service of summons, the defendants No.1 and 2 have appeared before the Court through counsel and filed written statement. The 1st 7 O.S.No.3620/2013 defendant has adopted the written statement filed by 2nd defendant.
4. The defendants No.1 and 2 have filed written statement contending that the suit is not maintainable in eyes of law or on facts of case. The defendants denied plaint paras except those which are specifically admitted. The defendants admitted that the plaintiff has issued notice and that they have given reply. There is no cause of action. The suit is not properly valued. The plaintiff who is not in possession of the suit schedule property cannot seek for partition and separate possession of her share. Late Smt.Vijayakala i.e. sister of the plaintiff and these defendants was acting in theaters and cinemas and out of the said earnings got a site allotted from CITB bearing site No.551 and thereafter, out of her earnings has constructed a building consisting of ground and 1 st floor on the said site. All the records and title deeds are standing in the name of Smt.Vijayakala. Neither the 8 O.S.No.3620/2013 plaintiff nor parents of the plaintiff have contributed any amount either for acquisition of said site or for construction of building and as such, the suit schedule property was the absolute and exclusive self acquired property of late Smt.Vijayakala. Smt.Vijayakala exercising her right of ownership has executed a Will dated 06.07.2003 in favour of the defendants No.1 and 2 and after the death of Smt.Vijayakala, the defendants No.1 and 2 have inherited the suit schedule property. Khatha of suit schedule property was mutated in the joint names of the defendants No.1 and 2 in revenue records of BBMP. Late Sri.Narasimha Murthy during his life time after the death of Smt.Vijayakala consented for the transfer of Khatha in the name of the defendants duly accepting that the suit schedule property was her absolute property and she could bequeath the same. Smt.Vijayakala in the said Will has mentioned that she has bequeathed her jewelry in favour of the 5 th defendant 9 O.S.No.3620/2013 and that the defendants No.1 and 2 should perform her marriage befitting the family status and financial capacity and also stipulated that the 1 st and 2nd defendants should take care of her educational expenses. The defendants have taken care of 5th defendant and have also performed her marriage. The defendants having acquired absolute ownership of the suit schedule property through inheritance while occupying the ground floor portion of the schedule property wherein they are residing have mortgaged the 1st floor portion of the suit schedule property and are receiving the rents there from. The suit schedule property was never a joint family property. The plaintiff has no any share in the suit schedule property. After the death of Smt.Vijayakala on 29.12.2004 and in view of Will dated 06.07.2003, the defendants have become absolute owners in possession and therefore, the plaintiff cannot file the present suit for 10 O.S.No.3620/2013 partition and separate possession. Hence, the defendants No.1 and 2 prayed to dismiss suit with costs.
5. The defendant No.1, 2 and 5 have filed additional written statement contending that the counter claim of the 3rd defendant is not maintainable. The 3rd defendant during his life time was acting in films and dramas along with Smt.Vijayakala and the plaintiff. The husband of the 3rd defendant during his life time out of his hard earned money contributed money for the purpose of acquiring the suit schedule property and construction of building. The 3rd defendant has contributed money for construction of the building. The suit schedule property is not the joint family property. Hence, the defendants No.1, 2 and 5 prayed to dismiss the counter claim of the 3rd defendants.
6. The 3rd defendant appeared through her counsel and filed written statement contending that the 11 O.S.No.3620/2013 suit of the plaintiff is true and correct. The 3 rd defendant admitted the plaint averments.
7. The 3rd defendant filed counter claim stating that the plaintiff and the defendants are the members of Hindu joint family. No partition is effected between the plaintiff and the defendants. The husband of the 3 rd defendant Mr.Babu (elder son of late Mr.Narasimha Murthy) was acting in film line and dramas along with late Smt.Vijayakala and the plaintiff. During life time of husband of the defendant No.3 i.e. Mr.Babu out of his hard earned money has contributed money for the purpose of purchase of suit schedule property and for construction of building along with the plaintiff. The defendants No.1 and 2 were minors when the site was allotted in the name of Smt.Vijayakala who was the elder sister of the plaintiff and the defendants. Even till today revenue records and other relevant documents of suit schedule property are standing in the name of 12 O.S.No.3620/2013 Smt.Vijayakala. The husband of the defendant No.3 has expired on 27.05.1998 leaving behind the defendant No.3 as his only legal heir and successor to succeed to his estate. Counter claim suit schedule property is the joint family property of the plaintiff and that of the defendants and the same is not yet partitioned among the plaintiff and the defendants. The defendant No.3 being the only legal heir of Mr.Babu is entitled to 1/5 th share in the suit schedule property. Hence, the defendant No.3 prayed to allow the counter claim and allot 1/5th share to the defendant No.3 in suit schedule property.
8. On 08.03.2018, the learned Predecessor of this Court has framed the following issues:-
ISSUES
1. Whether the plaintiff proves that the suit property is the joint family properties of herself and defendants?13
O.S.No.3620/2013
2. Whether the plaintiff further proves that she and the defendant No.1 to 5 are in joint possession and enjoyment of the suit schedule property?
3. Whether the defendant No.1 and 2 prove that the suit schedule property is the self- acquired property of Late Smt.Vijayakala?
4. Whether the defendant No.1 and 2 further prove that the said Smt.Vijayakala has bequeathed the suit schedule property in favour of them through a Will dated 6.7.2003?
5. Whether the defendant No.1 and 2 further prove that after the death of said Smt.Vijayakala they have became the absolute owners and possessors of suit schedule property?
6. Whether the plaintiff and defendant No.3 prove that they have got 1/5 th share over the suit schedule property?
7. Whether the plaintiff and the defendant No.3 are entitled to the reliefs as sought by them?
8. What order or decree?
9. In order to prove the case of the plaintiff, the plaintiff is examined as P.W.1 by filing affidavit in lieu of her examination in chief and relied upon Ex.P.1 to P.12. 14
O.S.No.3620/2013
10. In order to prove the case of the defendants, the defendant No.2 is examined as D.W.1 by filing affidavit in lieu of his examination in chief and relied upon Ex.D.1 to D.21. Mr.N.Chadrashekar attesting witness to alleged Will is examined as D.W.2 by filing affidavit in lieu of his examination in chief. The defendant No.3 is examined as D.W.3 by filing affidavit in lieu of her examination in chief.
11. Heard arguments of learned counsels on main suit. Perused materials available on record. The learned counsel for the defendants No.1, 2 and 5 submitted written arguments, list with rulings. The learned counsel for the plaintiff filed memo with three rulings.
12. This Court answer aforesaid Issues as follows :-
Issue No.1 : In negative
Issue No.2 : In negative
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O.S.No.3620/2013
Issue No.3 : In affirmative
Issue No.4 : In affirmative
Issue No.5: In affirmative
Issue No.6 : The plaintiff and the defendant No.3
are not entitled to 1/ 5th share in suit schedule property.
Issue No.7: The plaintiff and the defendant No.3 are not entitled to the relief as prayed for.
Issue No.8 : As per final order for the following :-
REASONS
13. ISSUE No.1 to 5: These issues are taken together for common discussion as they are interlinked to each other and to avoid repetition of facts.
14. It is an admitted fact that Mr.Narasimha Murthy was the propositus of family of the plaintiff and that of the defendants. Mr.Narasimha Murthy had 6 children namely Smt.Vijayakala, Mr.Babu, Mr.Ramesh, Smt.Pushpalatha, Mr.Raju and Mr.Venkatesh. Among 16 O.S.No.3620/2013 them Smt.Vijayakala, Mr.Babu and Mr.Ramesh are no more. Smt.Vijayakala died as spinster. Mr.Babu died leaving behind his wife Smt.Kalpana i.e. the defendant No.3. Mr.Ramesh died leaving behind his wife and daughter i.e. the defendants No.4 and 5.
15. The points in dispute and crux of matter is whether the suit schedule property is a joint family property or whether Smt.Vijayakala being absolute owner of suit schedule property has executed Will in favour of the defendants No.1 and 2 with respect to suit schedule property. By virtue of Will whether the defendants No.1 and 2 have become absolute owners of suit schedule property.
16. In order to prove the case of the plaintiff, the plaintiff is examined as P.W.1 by filing affidavit in lieu of her examination in chief and relied upon Ex.P.1 to P.12. 17
O.S.No.3620/2013
1. Ex.P.1 is the Khatha Extract pertaining to suit schedule property, wherein the name of Smt.Vijayakala is appearing.
2. Ex.P.2 is the nil encumbrance certificate pertaining to suit schedule property.
3. Ex.P.3 is the genealogical tree affidavit which is not in dispute.
4. Ex.P.4 is the copy of the legal notice dated 21.02.2012 issued by the plaintiff on the defendants No.1 and 2 to allot her share in suit property which is not in dispute.
5. Ex.P.5 is the reply to notice dated 03.03.2012 issued by the defendants No.1 and 2 which is not in dispute.
6. Ex.P.6 is the letter issued by Shree Sangameshwar Natya Sangh, Gudgeri dated 01.08.2016 wherein it is mentioned that Smt.Vijayakala has acted in the company dramas from 1975 to 1980, 1982 to 1986. 18
O.S.No.3620/2013
7. Ex.P.7 is the death certificate of Ms.Vijayakala which is not in dispute.
8. Ex.P.8 is the certificate issued by CBFC.
9. Ex.P.9 to 12 are the letters issued by Cine Combines dated 05.10.2018, S.K.Films dated 05.10.2018, Sevabhaya Creations dated 07.10.2018, Raaghashree Chitra.
17. In order to prove the case of the defendants, the defendant No.2 is examined as D.W.1 by filing affidavit in lieu of his examination in chief and relied upon Ex.D.1 to D.21. Mr.N.Chadrashekar attesting witness to alleged Will is examined as D.W.2 by filing affidavit in lieu of his examination in chief. The defendant No.3 is examined as D.W.3 by filing affidavit in lieu of her examination in chief.
1. Ex.D.1 is the copy of affidavit dated 26.07.1974 given by Smt.Vijayakala, wherein at para No.2 it was mentioned that neither Smt.Vijayakala nor her parents, 19 O.S.No.3620/2013 sisters or brothers owned any site or house within the area of CITB, Bengaluru.
2. Ex.D.2 is the confirmation letter by CITB Bengaluru, dated 18.09.1974.
3. Ex.D.3 is the copy of lease cum sale agreement dated 08.11.1975.
4. Ex.D.4 is the Khatha Extract pertaining to suit schedule property dated 07.01.2019 wherein name of Mr.B.N.Maheshwar Prasad and Mr.B.N.Venkatesha are appearing.
5. Ex.D.5 is the Will dated 06.07.2003 executed by Smt.Vijayakala in favour of Mr.B.N.Maheshwar Prasad and Mr.B.N.Venkatesha.
6. Ex.D.5(a) to (g) are the signatures of Smt.Vijayakala.
7. Ex.D.5(h) is the signature of D.W.2 on Ex.D.5.
8. Ex.D.6 is the uttara patra issued by BBMP, Bengaluru, dated 07.04.2005, wherein name of 20 O.S.No.3620/2013 Mr.B.N.Maheshwar Prasad and Mr.B.N.Venkatesha are appearing.
9. Ex.D.7 is the Form No.32 i.e. notice for change of name in property records of suit schedule property dated 24.10.2009.
10. Ex.D.8 to 17 are the ten tax paid receipts.
11. Ex.D.18 and 19 are the Khatha Certificate and Khatha Extract pertaining to suit schedule property dated 03.09.2018, wherein name of Mr.B.N.Maheshwar Prasad and Mr.B.N.Venkatesha are appearing.
12. Ex.D.20 is the original sale deed dated 16.03.1990 executed by BDA in favour of Smt.Vijayakala pertaining to suit schedule property.
13. Ex.D.21 is the letter addressed by Smt.Vijayakala to ARO, BBMP, Bengaluru dated 16.04.2001.
21
O.S.No.3620/2013
18. Dr.Spandana H.S., FSL expert is examined as C.W.1 by filing affidavit in lieu of her examination in chief and relied upon Ex.C.1 to C.5.
1. Ex.C.1 is the report.
2. Ex.C.2 is the reasons for opinion.
3. Ex.C.3 contain questioned signatures.
4. Ex.C.4 contain admitted signatures.
5. Ex.C.5 is the customer feedback form pertaining to FSL/FLMS/QD/246/2022.
19. The learned counsel for the plaintiff vehemently argued that the suit schedule property is a joint family property and that the plaintiff is entitled to 1/5th share in suit schedule property. Since Smt.Vijayakala has died intestate as spinster, the family members of Smt.Vijayakala are entitled to 1/5 th share in suit schedule property. The defendants No.1 and 2 are not the absolute owners of suit schedule property on the 22 O.S.No.3620/2013 basis of Will alleged to be executed by Smt.Vijayakala. Hence, the plaintiff prayed to decree suit with costs.
20. The learned counsel for the plaintiff has relied upon rulings reported in:-
1. 2022 (11) Supreme Court 520 in the case of Arunachala Gounder (dead) by legal representatives V/s.
Ponnusamy and others, wherein their lordship have discussed regarding devolution of interest of females property who died intestate.
2. 2021 Supreme Court Cases 209 in the case of Kavita Kanwar V/s Pamela Mehta and others, wherein their lordship have discussed regarding necessity of removing suspicion by cogent and convincing explanation.
3. Regular Second Appeal No.5675/2009 in the case of Shri.Vishwanath Nirveneppa Burji and others V/s. Shri.Umesh and others, wherein their lordship have discussed regarding proof and execution of Will. 23
O.S.No.3620/2013 The rulings relied upon by the learned counsel for plaintiff are not applicable to the present case in hand as the facts and circumstances of present case and facts and circumstances of the above referred rulings are entirely distinguishable.
21. The learned counsel for the defendants No.1, 2 and 5 has submitted written arguments that Smt.Vijayakala has executed Will in favour of the defendants No.1 and 2. Since Smt.Vijayakala was the absolute owner of suit schedule property, she has executed Will in favour of the defendants No.1 and 2. Signature on Ex.D.5 is that of Smt.Vijayakala. Sale deed of suit schedule property was standing in the name of Smt.Vijayakala. Attesting witness to the Will is examined as D.W.2 who has identified the signature of Smt.Vijayakala. Hence, the learned counsel for the defendants No.1, 2 and 5 prayed to dismiss suit. 24
O.S.No.3620/2013
22. The learned counsel for the defendants No.1, 2 and 5 has relied upon rulings reported in:-
1. 1995 (1) Supreme Court Cases 198 in the case of Ramti Devi V/s. Union of India, wherein their lordship have held that "a testamentary Court is not a Court of suspicion but that of conscience. It has to consider the relevant materials instead of adopting an ethical reasoning. A mere exclusion of elder brother or sisters per say would not create a suspicion unless it is surrounded by other circumstances creating an inference."
2. 2022 (1) Supreme Court Cases 115 in the case of V.Prabhakara V/s. Basavaraj K. (Dead) By legal representatives and another, wherein their lordship have held that "law requires that a Will must be attested by at least two attesting witnesses and at least one must be examined to prove it. The execution of a Will is tried in Courts, the attesting witness will be deposing before the 25 O.S.No.3620/2013 Court many years after the execution of Will. The witness may not be in a position to give the correct account of what transpired when the Will was executed or when he signed as an attesting witness. The plaintiff has not produced any records to hold that item No.1, 3 and 4 properties are the joint family properties."
3. AIR 2003 Supreme Court 3800 in the case of D.S.Lakshmaiah and another V/s. L.Balasubramanyam and another, wherein their lordship have held that "the one who asserts has to prove that the property is a joint family property. If, however the person so assertive proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available." 26
O.S.No.3620/2013
4. AIR 1958 Andhra Pradesh 147 in the case of Yendapalli Venkataraju (died) and another V/s. Yendapalli Yedukondalu @ Venkateswarlu and another, wherein their lordship have held that "if it is established that the family owned joint property which might have reasonably formed the nucleus where from the property in dispute could have been acquired, there is a shifting of the burden to the parties setting up exclusive title to the properties on the ground of acquisition as a result of his own exertions and without any help from the joint family."
5. 2003(2) Supreme Court Cases 91 in the case of Janki Narayan Bhoir V/s Narayan Namdeo Kadam, wherein their lordship have held that "one of the two attesting witness can be examined even though the other one is available, but he must prove due execution of the Will as required u/Sec.63(C) of Succession Act."
6. 2005 (2) Supreme Court Cases 784 in the case of Sridevi and others V/s. Jayaraja Shetty and others, 27 O.S.No.3620/2013 wherein their lordship have held that "onus to explain suspicious circumstances if any is also on the propounder. But onus to establish the allegations of undue influence, fraud or coercion on the person making such allegations should be one of the satisfaction of a prudent man."
The rulings relied upon by the learned counsel for defendants are applicable to the present case in hand as the facts and circumstances of present case and facts and circumstances of the above referred rulings are similar.
23. During course of cross examination of Pw.1, Pw.1 has admitted that her age was 8 years at the time of purchase of suit property. Pw.1 has admitted that except salary of her father, her father had no any source of income. P.W.1 has admitted that CITB allotted site in favour of Smt. Vijayakala as her father was a government employee and as such site was allotted in 28 O.S.No.3620/2013 favour of Smt. Vijayakala. Pw.1 has admitted that Smt. Vijayakala has filed affidavit before CITB on 26.07.1974 as per Ex.D.1 and that Smt. Vijayakala has started her acting journey since from the age of 19 years. Pw.1 has admitted that Smt. Vijayakala has paid Rs.7,200/- for allotment of site to CITB on 18.09.1974. It is an admitted fact that lease cum sale agreement was executed by CITB in favour of Smt. Vijayakala as per Ex.D.3. It is an admitted fact that BDA has allotted site in favour of Smt. Vijayakala in 1990 and that the plaintiff has signed sale deed as a witness. Pw.1 has admitted that now in revenue records of suit property, the names of defendants No.1 and 2 are appearing.
24. During course of cross examination of Dw.1, the defendant No.2 denied that application/affidavit is filed by all family members to CITB.
25. D.W.2 i.e. Mr. Chandrashekar attesting witness to the Will i.e. Ex.D.5 has stated that 29 O.S.No.3620/2013 Smt.Vijayakala informed D.W.2 that she is executing Will and that she has signed on Ex.D.5 in his presence. D.W.2 has deposed that Mr. Nagaraja, Smt. Vijayakala and father of Smt.Vijayakala were present at the time of execution of Will. Smt.Vijayakala has executed Will with respect to suit schedule property, jewelleries and fixed deposits. D.W.2 has stated that he has seen Mr. Nagaraja at the time of execution of Ex.D.5.
26. D.W.3 i.e. the defendant No.3 has deposed before Court that she is also entitled to 1/5th share in suit schedule property.
27. As per documentary evidence available on record, Smt. Vijayakala has expired on 29.12.2004. Will is executed by Smt. Vijayakala on 06.07.2003. As per Will i.e. Ex.D.5 jewelleries and fixed deposits are given to Priyanka. The defendants No.1 and 2 were given suit schedule property. Father of Smt.Vijayakala was the 30 O.S.No.3620/2013 executor of Will. It is not in dispute that father of Smt.Vijayakala has expired.
28. C.W.1 has admitted that she has not produced report before Court for using block test box. Cw.1 has deposed that Cw.1 has not submitted detailed report as to how Cw.1 has arrived at a conclusion as to how the disputed and admitted signatures are compared. It is not in dispute that Smt. Vijayakala was having neurological issues.
29. Relationship between parties is an admitted fact. It is an admitted fact that till death of Smt. Vijayakala, Smt. Vijayakala was a spinster.
30. It is settled principle of law that there is no presumption of a property being joint family property on account of existence of a joint hindu family. The one who asserts has to prove that the property is a joint family property. If however, the person so asserting proves that 31 O.S.No.3620/2013 there was nucleus with which joint family property could be acquired, there would be presumption of the property being joint and onus would shift on the person who claims it to be self acquired property has to prove that he purchased property with his own funds and not out of joint family nucleus that was available. In the present case, neither documentary evidence nor oral evidence are produced before Court to prove that suit schedule property was purchased by funds of joint family property or any nucleus was available with aid where of suit property is purchased in the name of Smt. Vijayakala. The plaintiff has failed to discharge initial burden of establishing that there was any nucleus in the form of any income from joint family. The oral evidence of P.W.1 states that father of Smt.Vijayakala has supported her to purchase suit property in her own name. Neither oral nor documentary evidence are produced before Court to prove that family members of Smt.Vijayakala have 32 O.S.No.3620/2013 contributed money to purchase suit schedule property and thereafter Smt.Vijayakala has thrown suit property into common stock with intention of abandoning her absolute claim over suit property.
31. Documentary evidence establishes the fact that suit property was purchased by Smt. Vijayakala. Section 14 of the Hindu Succession Act, 1956 deals with:-
"14. Property of a female Hindu to be her absolute property.--
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner 33 O.S.No.3620/2013 whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
32. As per Section 14 of Hindu Succession Act Smt.Vijayakala was absolute of owner of suit schedule property.
33. Now let us examine as to whether Smt.Vijayakala has executed Will in favour of the defendants No.1 and 2 as required under law. As per Section 68 of Indian Evidence Act and Section 63 of Succession Act, Will is to be proved. Burden of proof is on the defendants No.1 and 2 to prove that 34 O.S.No.3620/2013 Smt.Vijayakala has executed Will in favour of the defendants No.1 and 2 voluntarily, without there being fraud, undue influence or coercion. D.W.2 an attesting witness to Ex.D.5 has deposed before Court that Smt.Vijayakala has executed Will and in his presence, she has signed on Will i.e. Ex.D.5. So also, D.W.2 has identified the signatures of Smt.Vijayakala, another attesting witness of Ex.D.5. On a combined reading of Section 63 of Succession Act with Section 68 of Evidence Act, it appears that a person propounding the Will has to prove that Will was duly and validly executed. That cannot be done by simply proving that signature on Will was that of testator. But, it must also be proved that attestations were also made properly as required by clause (c) of Section 63 of Succession Act. It is true that Section 68 of Evidence Act does not say that both or all the attesting witnesses must be examined. In a way, a Court of Law has laid down that examining atleast one 35 O.S.No.3620/2013 attesting witness is sufficient even though the Will has to be attested atleast by 2 witnesses. That one attesting witness examined should be in a position to prove the execution of Will. In the present case, D.W.2 i.e. attesting witness to Will has satisfactorily proved execution of Will by Smt.Vijayakala. It is a settled principle of law that a mere exclusion of either brother or sister perse would not create a suspicion unless it is surrounded by other circumstances creating an inference. The expert who has submitted report as C.W.1 has deposed that she has taken report from video spectral comparators machine which is used for analyzing the signatures and having based her opinion on that report, has not placed the same before Court. The report submitted by Cw.1 do not inspire the confidence of Court to accept the report. Smt.Vijayakala not only bequeathed suit property in favour of the defendants No.1 and 2, so also she has bequeathed FD 36 O.S.No.3620/2013 amount and jewelleries in favour of Priyanka i.e. her brother's (Mr.Ramesh.B.N) daughter. As discussed supra Smt. Vijayakala was suffering from neurological issues. Even after execution of Will, Smt.Vijayakala lived for more than one year. The defendants No.1 and 2 have satisfactorily proved their case by production of cogent oral and satisfactory documentary evidence as per Section 68 of Indian Evidence Act and Section 63 of Succession Act. Since Smt.Vijayakala was absolute owner of suit schedule property as per Section 14 of Hindu Succession Act, she has executed Will in favour of her brothers i.e. defendants No.1 and 2. After the death of Smt.Vijayakala, the defendants No.1 and 2 have become absolute owners of suit schedule property. Neither the plaintiff nor the defendant No.3, 5 have any right over the suit schedule property. Thus, this Court inclines to answer Issues No.1 and 2 in Negative. Issues No.3 to 5 are answered in Affirmative. 37
O.S.No.3620/2013 34 ISSUE No.6:- The plaintiff and the defendant No.3 are not entitled to 1/5th share in suit schedule property.
35. ISSUE No.7:- The plaintiff and the defendant No.3 are not entitled to the relief as prayed for.
36. ISSUE No.8:- In view of foregoing discussion, this Court proceed to pass following:-
ORDER
1. The suit of the plaintiff is dismissed.
2. The counter claim filed by the defendant No.3 is dismissed.
3. Considering the relationship between parties, no order as to costs.
4. Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the open court, on this the 17 th day of April, 2025).
(Smt.Preeti Sadguru Sadarjoshi) XVII Addl. City Civil & Sessions Judge, Bengaluru.
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O.S.No.3620/2013 ANNEXURE List of witnesses examined for plaintiff:
P.W.1 Pushpalatha @ Latha List of documents exhibited for plaintiff:
Ex.P.1 Khatha extract
Ex.P.2 Nil Encumbrance Certificate.
Ex.P.3 Genealogical tree affidavit.
Ex.P.4 Copy of legal notice.
Ex.P.5 Reply notice.
Ex.P.6 Letter issued by Sri.Sangameshwara Natya
Sanga, Gudigere.
Ex.P.7 Death certificate.
Ex.P.8 Certificate issued by CBFC.
Ex.P.9 to 12 4 salary certificate.
List of witnesses examined for defendants:
D.W.1 Venkatesh D.W.2 N.Chandrashekar D.W.3 Kalpana
List of documents exhibited for defendants:
Ex.D.1 Copy of affidavit dated 26.07.1974. Ex.D.2 Copy of CITB dated 18.09.1974.
Ex.D.3 Copy of lease cum sale agreement.
Ex.D.4 Khatha extract
Ex.D.5 Unregistered Will dated 06.07.2003.
Ex.D.5(a) to (g) Signature of Vijayakala.
Ex.D.5(h) Signature of DW.2 on Ex.D.5.
Ex.D.6 Uttara pathra.
Ex.D.7 Notice for change of rights dated
24.10.2009.
Ex.D.8 to 17 10 tax paid receipts.
Ex.D.18 & 19 Khatha certificate and Khatha extract.
Ex.D.20 Original Sale Deed Dated 16.03.1990
Ex.D.21 Letter addressed to ARO BBMP dated
16.04.2001.
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O.S.No.3620/2013
List of witnesses examined for Court Commissioner:-
C.W.1 Dr.Spandana S. List of documents exhibited for Court Commissioner:-
Ex.C.1 Report
Ex.C.2 Reasons
Ex.C.3 Disputed signatures from Ex.D.5(a) to
(g) contains 2 pages
Ex.C.4 Admitted Signatures from A1 to A5
Ex.C.5 RPAD cover contains seal
XVII Addl. City Civil & Sessions
Judge, Bengaluru.
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O.S.No.3620/2013