Bangalore District Court
N. Mohan Reddy vs 1. M. Manjunatha Reddy on 1 June, 2021
IN THE COURT OF I ADDITONAL CITY CIVIL &
SESSIONS: JUDGE AT BENGALURU (CCH.NO.2)
Dated this the 1st day of June 2021
O.S. No. 1887/2004
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O.S. No. 6015/2005
Present : Sri. Somashekar C. Badami, B.Com., LLB.,
I Additional City Civil & Session Judge,
Bengaluru.
PARTIES IN O.S. NO. 1887/2004
Plaintiff : N. Mohan Reddy,
S/o Late N.Nanji Reddy,
Aged 48 years,
Residing at Pargi village,
No.51121, Pargi Mandalam
Hindupur Taluk,
Anantapur District,
Andhra Pradesh.
(Rep. by V.B.Shiva Kumar, Advocate)
V/s
Defendants : 1. M. Manjunatha Reddy,
S/o late Nanji Reddy,
Residing at Pargi village,
Pargi Mandalam,
Hindupur Taluk,
Anantapur District,
Andhra Pradesh.
(Dead) (LR's on record)
2. Smt. N.Shashikala,
W/o Late M. Srinivasa,
Aged 52 years,
Residing at No.35/1,
2nd Cross, Cambridge Road,
Near Canara Bank,Ulsoor,
Bangalore - 560 008.
O.S.No.1887/2004
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O.S.No.6015/2005
3. Smt. N.Parimala,
W/o Sri. Narayanappa,
Aged 28 years,
Residing at No.35/2,
2nd Cross, Cambridge Road,
Near Canara Bank,
Ulsoor,
Bangalore 560 008.
4. Sri. N.Choodamani @ Leelamma,
W/o C. Chowdappa,
Residing at Gopasandra,
Ulvad Post, Chintamani Taluk,
Kolar District.
(D.1 Rep. By Sri. Ramesh.M.Kumar,
Advocate)
(D.2 to D.4 Rep. By Sri. Sangamesh. G.
Patil., & Sri. D.R. Ravishankar Advocate)
PARTIES IN O.S.6015/2005
Plaintiffs : 1. Smt. N. Shashikala,
W/o M. Srinivas,
Aged about 53 years,
Residing at No.35/1,
II Cross, Cambridge Road,
Near Canara Bank,
Ulsoor,
Bangalore - 560 008.
2. Smt. N. Parimala,
W/o Sri. Narayanappa,
Aged about 42 years,
Residing at No.35/2,
II Cross,
Cambridge Road,
Near Canara Bank,
Ulsoor,
Bangalore - 560 008.
O.S.No.1887/2004
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O.S.No.6015/2005
3. Smt. N. Choodamani @ Leelamma,
W/o C. Chowdappa,
Aged about 49 years,
Residing at Gopasandra,
Ulwad Post,
Chintamani Taluk,
Kolar District.
(Plaintiffs Rep. By Sri. D.R. Ravishankar
and Sri. Sangamesh.G.Patil., Advocate)
V/s
Defendants : 1. Sri. N. Mohan Reddy,
S/o N. Nanji Reddy,
Aged about 51 years,
Residing at Pargi Village,
51121, Pargi Mandalam,
Hindupur Taluk,
Ananthapur District,
Andhra Pradesh.
2. Sri. M. Manjunath Reddy,
S/o Late Nanji Reddy,
Aged about 39 years,
Residing at Pargi Village,
Pargi Mandal,
Hindupur Taluk,
Andhra Pradesh.
(D.2 Dead LR's on record)
(D.1& D.2 Rep. by Sri. V.B.Shivakumar,
Advocate)
Date of Institution of the suit:
O.S. 1887/2004 15.03.2004
O.S. 6015/2005 09.08.2005
Nature of the Suit (suit for
pronote, Suit for declaration
O.S.No.1887/2004
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O.S.No.6015/2005
and possession, Suit for
injunction, etc.):
O.S. 1887/2004 Declaration & Injunction
O.S.6015/2005 Partition
Date of the commencement of
recording of the Evidence:
23.06.2008
Date on which the Judgment
was pronounced: 01.06.2021
Total duration: Year/s Month/s Day/s
O.S. 1887/2004 17 02 16
O.S. 6015/2005 15 07 22
Sd/
I Addl.City Civil & Sessions
Judge, Bengaluru.
COMMON JUDGEMENT IN O.S.NO : 18872004
CLUBBED WITH O.S.NO : 60152005
The plaintiff - N. Mohan Reddy has filed this suit
O.S.No.1887/2004 against his only brother and three
sisters for declaration to the effect that, the registered
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O.S.No.6015/2005
cancellation of Will deed dated 571999 under document
No. 96, Book No. III vol No. 141 at pages 135136 in the
office of subregistrar, Shivajinagar, Bangalore as forged,
fabricated, created and concocted and same is null and
void required to be canceled and for a direction to the
said subregistrar to record the cancellation of the same
and for perpetual injunction against the defendants from
alienating or interfering and dispossessing him from the
possession of the suit property bearing corporation No.
35 measuring Eastwest 35 feet and North South 48 feet
located at Main street, Jougupalya, Ulsoor, Bangalore,
within the boundaries as mentioned in the schedule.
and for costs.
The Plaintiffs - Smt. N. Shashikala and her two
sisters have filed comprehensive suit in O.S.No: 6015
2005 against their two brothers for partition and
separate possession of their 1/5th share each in the
same suit property bearing corporation No. 35 measuring
Eastwest 35 feet and North South 48 feet located at
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Main street, Jougupalya, Ulsoor, Bangalore, within the
boundaries as mentioned in the schedule.
2. The brief facts of the plaintiff - N. Mohan
Reddy's case in O.S.No. 1887/2004 are that ; Late N.
Najireddy and Smt. Muniveeramma are his parents. He
and the defendant No.1 - N. Manjunath Reddy are their
two sons. The defendants 2 to 4 - Smt. N. Shashikala,
Smt. N. Pramila and Smt. N. Choodamani are their three
daughters. His father N. Najireddy was predeceased to
his mother Smt. Muniveeramma. His mother Smt.
Muniveeramma was the absolute owner of five vacant
sites measuring 35 feet x 48 feet each at Bangalore by
virtue of family registered partition deed dated 1731949
under document No. 5552/194849. Thereafter, she has
sold a site by executing a registered sale deed in favour of
one Smt. Sundaravalli. It is alleged that, all the
daughters of Muniveeramma demanded for allotment of
sites to them and also demanded for payment of huge
amount for construction of their houses. However, his
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mother was unable to pay the amount to them. He
allegedly settled their dispute with his mother.
Accordingly, out of her remaining four sites, she has
given one site each to her three daughters Smt. N.
Shashikala, Smt. N. Pramila and Smt. N. Choodamani by
effecting a partition to that effect and only one site which
is fully described in the suit schedule was retained for
her. For refusal of payment of amount as per their
demand, there was no talking terms in between his
mother and her all the daughters.
3. It is further pleadings of the plaintiff that, his
mother Smt. Muniveeramma during her life time was
being the absolute owner of the suit schedule property
executed a registered Will dated 471985 under
document no. 55 in Book No.III, Vol.No. 62, pages 245
247 in the office of subregistrar of Shivajinagar,
Bangalore bequeathing the suit schedule property jointly
in favour of him and his brother - Manjunath Reddy/
defendant No.1. Then, she was canceled the said will
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dated 471985 with intend to modify her bequest.
Accordingly, she was executed her last will dated 2612
1997 and registered the same under document No.
328/1998 in Book No3 Vol.No.131 at pages 124125 in
the office of subregistrar, Shivajinagar, Bangalore and
thereby bequeathed the entire suit schedule property in
his favour. The said Will was executed by his mother in
presence of two attesting witnesses viz., Narayanappa,
R/o. Srirangarajapalli, Hindupur taluka and Smt.. M.R.
Pramila, who is none other than her sister, while his
mother was in a sound and good state of mind and
health.
4. It is further averments of the plaintiff that, on
2141999, his mother Smt. Muniveeramma was
diagonised for having throat cancer. Thereafter, she was
treated at Chaya Nursing Home and also at M.S.
Ramaiah Medical College Hospital in between 2341999
to 2641999. Later, she was treated at Kidwai Memorial
Hospital between 2571999 and 2871999. While she
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was admitted and under treatment for throat cancer, she
was also suffering from cordiological problem and
thereby, she was also admitted at Jayadeva Institute on
2871999, wherein on that day she was died at 600
p.m. His mother underwent for repeated Chemotherapy
and radiation during the treatment for throat cancer.
Therefore, she became mentally imbalanced and lost her
eye sight, unable to hear, read or write and also lost her
partial consciousness. Her death was certain even at the
time of diagnosing the throat cancer and thereby, he
along with his wife and daughter were taken care of her
with all love and affection.
5. The plaintiff further averred that, he is working
as an village administration officer at Paragi and
permanent resident of Paragi village in Andra Pradesh.
Because of his working schedule, responsibility and
bindings, he send his wife and daughter by name N.
Bhargavi by taking a house on rent at Mahalaxmi Layout,
4th main, No.673 Bangalore to look after and to provide
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better facilities and treatment to his mother and thereby
he was taken care of his mother. His sisters was not
cordial and talking terms with their mother and they
were not look after her soon after refusal of their demand
to pay the amount for construction of houses.
6. It is further averment of the plaintiff that, after
the death of his mother, on the basis of Will dated 2612
1997, he has applied for transfer of Khata of the suit
schedule property and accordingly, it was transferred in
to his name. He became absolute owner in lawful
possession of the suit schedule property. In the
meanwhile, he learnt that fraudulently, by an unlawful
means the suit schedule property allegedly gifted in
favour of defendant No.1 without being any existence of
such deed of gift and his mother was not in a position to
execute any such alleged gift deed. Therefore, he allegedly
filed a Suit O.S. No. 7988/1999 for cancellation of any
such fraudulent gift or a document transferring the suit
property in favour of his brother i.e., defendant No.1. On
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service of summons of the said suit to his
brother/defendant No.1, he came to appeared and
confirmed and clarified that no such gift was executed by
his mother and in view of consent written statement of
his brother - Manjunath Reddy, the said suit was decreed
in his favour. In fact, due to her chronic decease of
cancer, his mother had lost her mental balance and
incapacity to execute any document.
7. It is further averment of the plaintiff that, there
was repeated interference by defendants and attempt to
dispossess him from the suit property and accordingly,
he filed a suit O.S. No. 1437/2000, which came to
dismissed in view of non interference offered by the
defendants. Thereafter, again he allegedly filed another
suit O.S.No.2940/2002 for bare permanent injunction,
wherein he was granted an order of injunction against
the defendants. He adduced his evidence in the said suit
and during pendency of the same, the defendants 2 to 4
brought up a certified copy of cancellation of Will dated
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26121997 in his favour and accordingly, the said case
came to be decreed in his favour. In fact, the defendants
not at all produce the original and on looking to the
certified copy, it is learnt that, on the alleged date i.e., 5
71999 which mentioned in the said deed of cancellation
of his Will, his mother Late Muniveeramma was not in a
sound state of mind and good health. In view of her
decease, she was mentally incapacitated and it was not
possible for her to execute the same. It is alleged that,
the same was impersonated by the defendants 2 to 4 and
committed fraud and forged the signatures of his mother
Muniveeramma projected before subregistrar for affixing
the thumb impression to execute the same in an illegal
manner. Thus, the cancellation of the Will dated 57
1999 is a forged, fabricated, concocted and impersonated
document allegedly pertaining to his mother. The thumb
impressions and signatures in the said document are not
at all belonging to his mother and it was not possible to
execute the same in view of her incapacity and the same
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is spurious document brought up in a serious suspicious
circumstances. If such an illegal document remained to
be continue, it will affect to his valid title over the suit
schedule property by virtue of valid Will dated 2612
1997 and also affect to its marketable value, and he is
also not in a position to enjoy the suit property as an
absolute owner. Hence, this suit for cancellation of such
forged, fabricated, impersonated got up document dated
571999 and for other reliefs as sought for.
8. The defendant No.1/M.Manjunath Reddy
though appeared through Sri. Ramesh M.Kumar,
advocate but, not filed his written statement. The
defendants 2 to 4 appeared through their counsel Sri.
Sangamesh.G.Patil., and filed their written statement.
9. The sum and substance of the written
statement of the defendants 2 to 4 are that ; the suit
of the plaintiff is not maintainable either in law or on
facts. The relationship not disputed. It is contended
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that, the suit schedule property originally belonged to one
N. Ramaiah. His wife Smt. Chinnamma. They have got
five daughters and three sons. Smt. Muniveeramma is
also one of their daughters. There was partition is their
family. During the said partition, the suit schedule
property along with other properties were alloted to their
mother Smt. Muniveeramma and all the properties
alloted are her self acquired properties. Accordingly, she
was executed a gift deed in their favour and gifted one
site each to them. She was also sold a site at the
instance of the plaintiff, who utilized the sale
consideration amount for his family needs. The suit
schedule property was retained for their mother, who was
in actual possession and enjoyment till her death.
10. It is further contention of these defendants
that, the plaintiff had obtained a Will dated 26121997
by playing fraud to his mother and behind the back of his
brother and sisters. Therefore, subsequently, their
mother Smt. Muniveeramma had canceled the said Will
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O.S.No.6015/2005
dated 26121997 by executing a registered deed of
cancellation of the said said Will on 571999. Soon after
the cancellation of the said Will by his mother, the
plaintiff had filed O.S. No. 7988/99, O.S. No.1437/2000
and O.S. No. 2940/2002 and try to establish his right
over the suit schedule property. As per the plaintiff in
O.S 2940/2000, his only brother M. Manjunath Reddy
was not physically fit and healthy and for that reason, he
was unable to be gainfully employed and also not married
and because of these reasons, his brother was fully
depending upon him for livelihood. Thus, the plaintiff
colluding with said brother the defendant No.1 created a
false story that their mother Muniveeramma was
mentally incapacitated with intent to grab valuable suit
property of their mother created the deed of cancellation
of Will.
11. It is further contention of these defendants
that, their mother was suffering from breast cancer since
1987, but not throat cancer. She was staying with them
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O.S.No.6015/2005
in Bangalore and they have taken all her care and got
provided medical facilities. The plaintiff or any of his
family members not at all look after their mother at any
point of time. Initially, she took treatment at Chaya
Nursing Home and then took treatment in Kidwai
Hospital. She undergone surgery at twice. It is contended
that, they were taken care of their mother with great love
and affection. She was sound state of mind till her death
on 2871999. In fact, in the month of May, June and
July, she was executed several registered deeds in
respect of her different properties, She was executed a
registered deed in favour of plaintiff's daughter in the
month of May. Accordingly, she was able to take her own
decision during the said period.
12. It is further contended that, they have
constructed their houses on the sites given by their
mother very long back during 197980 and they never
demanded anything from their mother. The husbands of
defendants 3 and 4 are government employees and the
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family of all their husband is well established and they
were no need of any money from their mother. After the
death of their mother, though, they are joint owners in
actual possession of the suit property, the plaintiff
allegedly by playing fraud and colluding with concerned
authorities behind their back without any absolute right
or interest over the suit property got transfered his name
in the records of suit property only with intent to illegally
prosecute against them. By suppression of fact of
execution of registered cancellation deed dated 571999
by their mother Smt. Muniveeramma, the plaintiff filed
the suits against them in respect of the suit schedule
property. Admittedly, the plaintiff is permanently residing
in Paragi village, Hindupur Taluka of Ananthpur District,
Andra Pradesh and he was not at all in actual possession
of the suit schedule property. It is contended that,
actually they are in joint possession of the suit property
and even during the life time of their mother, they have
constructed a small shed in the suit site and they are
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using the same for storing their waste materials.
13. It is further contended by the defendants 2 to 4
that, contrary to their specific contentions, all the
averments of the plaintiff in his plaint are specifically
denied to be false. It is contended that, the court fees
paid on the plaint is insufficient. There is no cause of
action to the suit of the plaintiff and the same is barred
by law of limitation. Therefore, the plaintiff is not entitled
for any of the reliefs as he sought for. Wherefore, it is
prayed to dismiss the suit of the plaintiff with costs.
14. The brief facts of the plaintiffs' - Smt. N.
Shashikala & her two sister's case in O.S.No.
6015/2005 are that ; they and the defendants 1 and 2
are daughters and sons of Smt. Muniveeramma and Late
N. Najireddy. Their mother Smt. Muniveeramma had
acquired the suit schedule property bearing corporation
no.35 measuring 35'x45' at Jougupalya as described in
the schedule and other four sites by virtue of schedule 'F'
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of partition deed dated 1731949. Out of these five sites,
their mother was sold a site to one Smt Sundaravalli.
One site given to Mr. Srinivas, who is the husband of
Smt. Shashikala and one site each given to plaintiffs 2
and 3 - Smt. Parimala and Smt. Choodamani. The suit
schedule site is retained with their mother. Their mother
had executed a registered will bequeathing the suit
schedule site in favour of her two sons. However, she
was canceled the said will by a registered deed of
cancellation of the will dated 571999 under document
no.96, book no. III, volume No141 at pages 135136 in
the office of subregistrar, Shivajinagar and
subsequently, she was died intestate on 2871999. She
was mentally sound though she was suffering from
breast cancer for which, she had been taking regular
treatment. She was active and physically fit till her death
and she died due to cardiac failure and not due to her
ailment. She did not have any physical or mental
imbalance and she was fully conscious about her all acts
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till she died due to cardiac failure. She was residing with
plaintiffs and defendant No.1. She had properties not
only in Bangalore but also in Hindupur.
15. It is further averment of the plaintiffs that, their
mother had executed a registered gift deed in favour of
the 2nd defendant. It is learnt to them that, in between
the defendants 1 and 2 without impleading them, a suit
O.S.No.7988/99 was filed and canceled the said gift. The
defendant No.1 also filed O.S.No.1437/2000 and O.S.
No. 836/2000 against them and it came to be dismissed.
Another suit was filed in O.S.No.2940/2002 for
Injunction against them and same was decreed. The said
decree was challenged and it is pending in R.F.A.
No.1176/2004. Apart from this, the present suit O.S.
No.1887/2004 was filed by defendant No.1 against them
and defendant No.2 and same is pending for
consideration.
16. It is further averments of the plaintiffs that, the
suit property is a vacant site in which a shed is
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constructed and the same is in their possession and it is
kept under lock by them. Since, their mother was died
intestate, they are entitled 1/5th share each in the suit
schedule property as they are in joint and constructive
possession. They have demanded the defendants to
partition of the suit property, but it is denied by the
defendant No.1. The cause of action to the suit arose on
2871999 when their mother allegedly died intestate and
subsequently in the year 2000 on denial of their demand
for partition by defendant No.1, who had filed suits
denying their right over the suit property. Hence, this
suit is for partition and separate possession of their
1/5th share each in the suit property and for costs.
17. The defendants entered their appearance
through their counsel Sri. V.B. Shivakumar. The
defendant No.1 has filed his written statement and the
defendant No.2 adopted the same.
18. The sum and substance of the written
statement of the defendant No1 are that ; The
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relationship is admitted. It is admitted that, the suit
property is the property of their mother Smt. M.R.
Muniveeramma. It is admitted that their father Nanji
Reddy predeceased to their mother. It is admitted that
out of 5 sites of their mother, she sold one site to Smt.
Sundaravalli, one site was given to Mr. Srinivas, the
husband of the plaintiff no.1 and one site each to
plaintiffs 2 and 3 and retained suit schedule property for
her. It is also admitted that, their mother executed a
registered will bequeathing the suit schedule property in
favour of her sons. It is admitted that, their mother was
died on 2871999. It is denied that, she died intestate
and plaintiffs look after his mother all the while during
her ailment of cancer and other decease and hospitalized
and she was residing with them as pleaded in the plaint.
19. It is denied that, on 571999, their mother
executed a deed of cancellation of Will. It is denied that,
their mother was mentally sound, active, physically fit on
the said alleged date of deed. It is specifically contended
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that, on the said alleged day i.e, on 571999, his mother
was in Paragi village of Hindupur Taluk, Ananthapur
District of Andra Pradesh, which fact was admitted by
plaintiffs in their evidence recorded in a previous suit
filed by him. She was unwell, unable to move, had lost
all of her sensitive organs, unable to hear and see, hands
were shaking and she was even not able to understand
anything about her acts. Thus, she was not in a sound
state of mind and conscious. Her natural calls were being
attended by him and his wife. She was unable to execute
such a document before subregistrar. It is contended
that, the same is forged, fabricated, concocted and
created document. The said deed of cancellation of will
never came into existence. The person who appeared
before subregistrar was impersonated their mother and
the same is a got up document with intent to knock off
the suit property and deprive the right of defendant no.1
by virtue of legal and lawful bequeath of suit property by
his mother and accordingly filed his suit for cancellation
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of such a fabricated got up document.
20. It is contended that, during life time, his
mother was executed a will dated 2761985 and same
was canceled by her on 471985 and executed fresh
registered will dated 26121997 and thereby bequeathed
the suit property in his favour and accordingly, she was
died testate and after her death, he became absolute
owner of the suit schedule property. Also contended the
entire case made out in his suit O.S.No.1887/2004. It is
contended that Gift deed could not have been executed
by his mother in favour of defendant No.2 as his mother
was unable to execute the same due to her ailment and
accordingly it is admitted by defendant No.2, for which
the suits filed by him in O.S.No.7988/1999 and the same
was decreed. O.S.No. 1437/2000, O.S.No.2940/2000
and O.S.No.836/2000 are also filed and on record.
21. It is contended that, the suit of the plaintiffs is
barred by limitation and hit by section 7 and Order II rule
2 of CPC. It is contended that, the suit is hit by
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constructive of resjudicata and plaintiffs have no right,
title or any interest in the suit schedule property.
Wherefore, it is prayed to dismiss the suit of the plaintiffs
with exemplary costs.
22. On the basis of pleadings, my predecessorsin
office have framed the Issues on 2062006 in O.S. No.
1887/2004 and on 1572008 in O.S.No.6015/2005,
which are as under :
ISSUES IN O.S. No. 1887/2004
1. Does plaintiff proves that his mother
Muniveeramma, while in sound disposing
mind executed her last Will registered as
document No.2328/1998 in book3 volume
131 at pages 124125, on 26.12.1997 in the
SubRegistrar's Office, Shivajinagar, canceling
her earlier Will dated 04.07.1985?
2. Did plaintiff succeed to suit property upon the
death of his mother Muniveeramma?
3. Was the said Will Dated 26.12.1997 out come
of fraud practised by plaintiff, alleged by
defendants?
4. Did Muniveeramma cancel the said Will dated
26.12.1997, by executed the registered
document dated 05.07.1999 as alleged by
defendants?
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5. Is the suit property valued and the Court Fee
paid sufficient?
6. Is the present suit barred by time?
7. What decree or Order?
ISSUES IN O.S. No. 6015/2005
1. Whether the plaintiffs prove that suit property
is the joint family property of the plaintiff and
the defendants?
2. Whether defendant No.1 proves that the suit
property is the absolute property of Smt.
Muniveeramma as contended in para No.10 of
the written statement?
3. Whether the defendant No.1 further proves
that his mother executed a Will on 26.10.1997
and bequeathed the suit property in his favour
by canceling the earlier Will as contended in
para No.11 of written statement?
4. Whether the plaintiffs are entitled to the
partition and separate possession of 1/5th
Share in the suit property?
5. What order or decree?
23. It is significant to note that, as per order dated
14102008 passed in O.S.No. 6015/2005, with consent
of both sides, my predecessorinoffice clubbed both suits
to record common evidence and for common judgment in
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O.S. No. 1887/2004. The counsel for the plaintiff files a
memo dated 3032019 reporting that, N. Manjunath
Reddy i.e., the defendant No.1 of O.S.No. 1887/2004 and
defendant No.2 of O.S. No. 6015/2005 was died
unmarried on 1622019 and accordingly as per section 8
of Hindu Succession Act since he has no any classI
heir, under classII (3), the plaintiff - Mohan Reddy being
his elder brother is the sole legal heir to him.
24. In order to prove the case of the plaintiff in
O.S.No. 1887/2004, the plaintiff - Mohan Reddy with
one witness are examined as P.w.1 and P.w. 2 and got
marked the documents at Ex.P1 to P22 on his behalf. On
the other hand, the defendant No.4 - Smt. Choodamani
was examined with one witness and the court
commissioner/Expert are examined as D.w.1 to 3 and got
marked the documents at Ex.D1 to D4(a) on behalf of
defendants 2 to 4 in support of their case.
25. I heard the arguments of both sides physically and
virtually on request. In addition to the oral arguments,
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both the learned counsel for plaintiff and defendants 2
to 4 have also filed their written arguments relied upon
number of citations. I perused entire evidence and all
other materials on record of both suits.
26. My findings to the aforesaid issues of both suits
are as under :
O.S.No.1887/2004
Issue No.1 :- In the affirmative
Issue No.2 :- In the affirmative
Issue No.3 :- In the negative
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
for the following :
O.S.No.6015/2005
Issue No.1 :- In the negative
Issue No.2 :- In the affirmative
Issue No.3 :- In the affirmative
Issue No.4 :- In the negative
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Issue No.5 :- As per final order;
for the following :
REASONS
27) Issue No 2 of O.S. No. 6015/2015 : In
order to adjudicate the crux of the dispute between the
parties to these suits, it is needful to determine the facts
in the present issue no. 2 of O.S.No 6017/2015 on
priority basis. The relationship between the parties to the
suit is not in dispute between them. Late N. Najireddy
and Late Smt. Muniveeramma are the father and mother
of the parties to the suits. It is also not in dispute that,
N. Najireddy the father is predeceased to Smt.
Muniveeramma the mother of the parties to the suit. It
is also admitted fact that the defendant No.2 - N.
Manjunath Reddy being their second son was died
unmarried during the flag ending stage of these suits i.e.,
on 1622019. It is also not at all in dispute that, he has
no any classI heir and thereby the plaintiff being classII
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(3) heir on priority as per section 8 of Hindu Succession
Act succeeded to his estate if any as per memo dated 30
32019 filed by the learned counsel for the plaintiff.
28) The property bearing corporation No.35
measuring Eastwest 35 feet and North South 48 feet at
Jougupalya, Ulsoor, Bangalore within the boundaries to
the East: N. Parimalas property, West & North: Road, and
to the South: R. Kapoor's property is the common subject
matter in dispute in both these suits. Admittedly, it is a
vacant site and location of the same is commonly
described in the schedule of both suits. Therefore,
hereinafter it is referred as "suit property". In fact, this
suit property is the absolute property of Late Smt.
Muniveeramma - the mother of the parties to the suit is
not at all in dispute. In this context, the admitted facts
between parties to the suits are that, there was partition
of the parental family of Late Smt. Muniveeramma and in
the said partition, the present suit property along with
other four similar vacant sites were fallen to the share of
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Smt. Muniveeramma and thereby she became absolute
owner of the same by virtue of Schedule 'F' of registered
Partition Deed dated 1731949. This admitted facts is
evident by Ex. P2, which is the certified copy of said
unchallenged registered partition deed dated 1731949.
It is also not in dispute that, said Muniveeramma has got
three daughters i.e., by name Smt. Shashikala, Smt. N.
Parimala and Smt. N. Choodamani, who are the
defendants 2 to 4 of present O.S.No. 1887/2004 and
plaintiffs 1 to 3 of O.S.No. 6015/2005 and very long back
given one sites each to them out of her five sites and one
site is sold to one Smt. Sundaravalli and the present suit
property is retained for her. Accordingly, there is no
dispute that, the suit property is the absolute property of
Smt. Muniveeramma - the mother of the parties to the
suits. Therefore, I answer this issue No.2 of
O.S.No.6015/2005 is in the affirmative.
29) Issue Nos. 1, 3, 4 of O.S.No. 1887/2004 and
Issue No. 3 of O.S.No. 6015/2005 : It is necessary to
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mention here that, the issue no.1 of O.S.No. 1887/2004
and issue no.3 of O.S. No 6015/2005 are common. To
adjudicate the facts in these issues that, whether the Will
dated 26.12.1997 is a last genuine Will of Smt.
Muniveeramma, it is need to consider the issue no.3 of
O.S.No. 1887/2004 cojointly to determine the serious
dispute about the defence version that the said Will dated
26.12.1997 was canceled by Smt Muniveeramma by
virtue of her registered deed dated 571999 involved in
the said issue and issue no. 4 of O.S No. 1887/2004 is
interconnected to the same. Therefore, to avoid repetition
and for the sake of convenience, I have taken them
together for my discussion.
30) The Plaintiff - N. Mohan Reddy claimed his
absolute ownership in possession over the suit property
of his mother Late. Muniveeramma after her death,
urging that she died testate leaving behind her a first Will
dated 471985 bequeathing suit property jointly to him
and his brother and by cancellation of the same, she has
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executed another WILL dated 26121997 bequeathing
the suit property solely in his favour while she was in
sound state of mind and good health and according to
make perfect of his title by virtue of said will filed suit
O.S.No1887/2005 to declare that the alleged registered
deed dated 571999 of Cancellation of the said will of
Muniveeramma under a document No.96, Book No.III,
Volume No.141, at page 135 to 136 as forged, fabricated
created and concocted document it is nonest null and
void and also for direction to the concerned subregistrar
to make an entry to that effect and for decree of perpetual
injunction against the defendants. The defendant No.1
M. Manjunath Reddy being the younger brother of
plaintiff not at all disputed any of the case made out by
his brother. It is significant to mention here about the
undisputed facts between the parties that, said
Manjunath Reddy is unmarried and depending on
plaintiff for his livelihood as he is physically not fit to
earn anything and accordingly, the plaintiff is look after
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him.
31) The defendants 2 to 4 of this suit are Plaintiffs
1 to 3 of O.S. No. 6015/2005, who contended that, the
will dated 471985 was for allotment of suit property in
favour of plaintiff No.1 and the defendant No.1; but, the
WILL dated 26121997 is the out come of fraud by their
brother Mohan Reddy and accordingly Smt
Muniveeramma during her life time canceled the same by
executing a registered deed of cancellation dated 57
1999 of the said WILL dated 26121997, while she
was in sound state of mind and good health and
ultimately died intestate. Therefore, legally all the three
daughters and two sons of Smt. Muniveeramma
succeeded to the suit property and they have got 1/5th
share each and thereby claimed partition and separate
possession of their 3/5th share in their suit
O.S.No.6015/2005. Such being the rival claim of the
parties to the suit, the burden is equally upon both to
prove their respective case.
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32) The Plaintiff Mohan Reddy with one of the
attesting witness of the Will dated 26121997 by name
Narayanappa are examined as P.w1 and 2 and relied upon
Ex.P1 to P22 to prove his case. On the other hand, the
defendant No.4 Smt. N. Choodamani with one attesting
witness - S. Vijay to the registered deed dated 571999 of
the cancellation of the WILL dated 26121997 along with
Finger Print Expert as D.w.1 to 3 and relied upon Ex.D1
to D4(a). I have carefully evaluated these oral and
documentary evidence of both sides.
33) The P.w.1 Mohan Reddy in his chief
examination in the form of affidavit reiterated the same
set of facts, which have narrated in his pleadings of both
case. He propounded the WILL dated 26121997
claiming that it is the last will of his mother Smt.
Muniveeramma bequeathing entire suit property in his
favour and thereby he became owner in possession of the
same soon after the death of his mother. The Ex.P1 is
the said Will dated 26121997 said to have been
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executed by Smt. Muniveeramma. It is a Registered will
under document No. 328/1998 in Book No3 Vol. No.
131 at pages 124125 in the office of subregistrar,
Shivajinagar, Bangalore and thereby bequeathed the
entire suit schedule property in his favour. On perusal of
the recitals of the same, it goes to show that, the testatrix
was executed a registered will dated 471985 and the
same was canceled to bequest the suit property
absolutely in favour of her first son N. Mohan
Reddy/plaintiff. At this juncture, it is necessary to
express my opinion that, neither parties to the suits,
claim any right on the strength of the said first will dated
471985 said to have been executed by Smt.
Muniveeramma in respect of the suit property. Looking to
the Ex.P1, one - Smt. M. R. Pramila is also one of the
attesting witnesses along with one N. Narayanappa, R/o.
Srirangarajapalli of Paragi village of Hindupur Taluk in
Anantapur District of Andra Pradesh, who is examined as
P.w.2. Smt. M.R. Pramila admittedly the own sister of
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testatrix - Smt. Muniveeramma.
34) The P.w.2 - Narayanappa attesting witness to
the Ex.P1 entered in to the witness box with his affidavit
in the form of chief examination, wherein, he deposed
that his property exist adjacent to the properties of
Muniveeramma. It is stated by him that on 26121997,
he was called by Smt. Muniveeramma and told about
executing the will, which was prepared by one C.M.
Muniswamy Naidu as per her instructions. According to
him, said scribe is now no more. It is also deposed that,
after scribed the same, he read over the same and it was
understood by Smt. Muniveeramma and affixed her
signature to her will and thereafter he signed to the
same. He also deposed about presence of Smt. M.R.
Prameela, who also signed as a witness to the said Will.
It is deposed that, while executing the said Will by that
time Smt. Muniveeramma was in sound state of mind
and able to hear, see and understand.
35) During the course of cross examination of
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P.w.2, he had reiterated the same facts whatever he
deposed in chief examination. It is peculiar to taken note
that, the lacuna of his chief examination is overcome in
the result of his cross examination. At page 3 of para 3 of
his Cross examination itself, got identified the signature
of testatrix Muniveeramma as Ex.P1(a) from him. His
signature got identified as Ex.P1(b). Though, he admitted
that, Muniveeramma was suffering from Blood Cancer,
but he denied the suggestion that in the year 1997 Smt.
Muniveeramma was suffering from Blood Cancer. He
also denied the suggestion that she was hard of hearing,
unable to walk and her eyesight was very poor. In fact,
this suggestion is contrary to the pleadings of defendants
No.2 to 4. It is their specific defence that, though their
mother was suffering from Cancer, she was active and
physically fit till her death in the year 1999. In the result
of cross examination of this P.W.2, it is elicited that he
well acquainted with Smt. Muniveeramma as he deposed
is not disputed and on the other hand, it is elicited about
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the presence of all the signatories of Ex.P1 at the time of
execution of the said Will. Even there is no suggestion of
denial of signature of another attesting witness - Smt.
Prameela. Thus, nothing is elicited to believe that he was
given false evidence as unsuccessfully suggested so.
Therefore, I have no reason to disbelieve his testimony
and he appears to be natural and independent trust
witness.
36) It is pertinent to note here that, in the result of
cross examination of P.w.1, nothing is elicited to believe
the contention of defendants that, the WILL dated 2612
1997 i.e, Ex.P1 is the out come of fraud by their Mohan
Reddy. In fact, to the clever question asked to him as
"how many documents executed by mother in respect of
suit property? P.w.1 answered as he came to know that
she has executed a will after the death of his mother''.
Admittedly, the P.w.1 was residing permanently at Paragi
village in Andra Pradesh and looking to the Ex.P1, it is
executed and registered at Bangalore and it is not
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revealing the presence of P.w.1. Muchless nothing is
elicited about participation of P.w.1 in any manner at the
time of Ex.P1. Per contra, the own sister of testatrix viz.,
Smt. M.R.Prameela appears to be participated at the time
of execution of Ex.P1 and signed on it as attesting
witness and her presence is not at all disputed during the
course of cross examination of P.w.1 and 2. Even there
is no suggestion to P.w.1 and 2 that, the Ex.P1 is got up
by playing fraud as contended by the defendants 2 to 4.
37) The P.w.1 denied the suggestion that, his
mother was taking treatment for cancer since 1988. Of
course, Ex.D2 is placed in support of such case of the
defendants 2 to 4. The Ex. D2 is a copy of Admission
Register of Kidwai Memorial Institute. Looking to the
same, it appears that, Muniveeramma was admitted on
971987 for the cancer or right Breast. Except this,
nothing on record to show anything that she was
suffering the same at the time of Ex.P1. Even Ex.D2 was
not clarity about how many days she was admitted and
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on what date she was discharged and what was her
condition at the time of discharge. The said columns are
blank and it need further evidence to show whether the
said cancer was continue or by that time it was cured.
Without such evidence on record, it is not proper to
believe the oral say that the said cancer was continued
for a period of 10 years as Will/Ex.P1 executed in the
year 1997. The material point is required to be shown
that as on the date of Ex.P1 what was the state of health
and mind of the testatrix Muniveeramma. But no
material is placed to that effect and when the very sister
of Smt. Muniveeramma appears to be participated in
execution of the Ex.P1, it is inferred that the testatrix was
hale and healthy and capable to execute Ex.P1 as
deposed by independent witness P.w.2. Therefore, I
have no reason to disbelieve about the execution of the
Ex.P1 by the mother of parties to the suits bequeathing
the suit property absolutely in favour of her elder son
Mohan Reddy/Plaintiff while she was in a good state of
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mind and health as the case made out by the plaintiff.
38) The Ex.P3 is the copy of special notice dated 6
101998 for the proceedings of BBMP in respect of all the
sites of Smt. Muniveeramma settled one site each in
favour of husband of defendant No. 2 by name M.
Srinivas, defendant No 2 and 3 and continued the khata
of Smt. Muniveeramma in respect of only one site i.e, suit
property No.35 retained by her and these facts are
admitted between the parties to the suit. The Ex. P4 is
the copy of Khata certificate dated 2952001 issued by
BBMP in respect of suit property in the name of plaintiff
N.Mohan Reddy. The Ex.P5 is the copy of Tax
Assessment extract of the suit property issued in the year
2001 and it appears that the name of the plaintiff entered
in the place of Muniveeramma and by that time
admittedly she was no more. The Ex.P6 is the Death
Certificate of Smt. M. R. Muniveeramma W/o. Late N.
Najireddy is evident about the admitted fact that, she
was died on 2871999. The Ex.P7 is the Tax paid
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receipt in respect of the suit property in the name of
Muniveeramma goes to show that, the arrears of tax from
1990 to 1998 was paid. The Ex.P17 to 19 are also the
tax paid receipts in respect of the suit property are
evident that the tax paid by the plaintiff in respect of the
suit property all the while from the date of death of his
mother till 200607. The Ex. P8 to Ex. P10 are the
certified copy of the exhibited records of another suit. The
same are also tax paid receipts from 2001 till 2003 to the
suit property issued in the name of plaintiff Mohan
Reddy, who paid the taxes and same are not at all
disputed. The suit property admittedly vacant site. These
undisputed revenue entries in the name of plaintiff got
presumptive value to believe that, the plaintiff acted upon
on the basis of Ex.P1 came in to possession of the suit
property soon after death of his mother.
39) The Ex. P11 is the certified copy of judgment
and decree of O.S.No. 2940/2002 on the file of CCH13.
Looking to the same, it appears that, the said suit was
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filed by the present plaintiff against his sisters -
defendants 2 to 4 and others for bare permanent
Injunction in respect of the suit property. The
defendants appeared and contested the said suit and
after trial, it was decreed holding that the plaintiff was in
lawful possession of the suit property as on the date of
said suit. In the said suit O.S.No.2940/2002, the
present defendants contended by propounding the
registered deed dated 05.07.1999 of cancellation of the
Will dated 26121997 and failed to establish the same.
The Ex.P12 is the certified copy of the order of dismissal
of R.F.A. No. 1176/2004 filed by the defendants herein as
against the said judgment and decree passed in
O.S.No.2940/2002 as withdrawn the same reserving
their liberty to raise all their contentions in the present
suits as evident by the copy of their memo dated 2811
2006 to that effect. However, the findings of the court in
the said suit in respect of lawful possession of the
plaintiff became final and confirmed.
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40) The Ex. P13 is the certified copy of the entire
order sheet of O.S. No 7988/99 on the file of CCH6. The
Ex.P14 is the certified copy of the consent W.S. of N
Manjunath Reddy. The Ex.P15 is the certified copy of
compromise petition filed under order 23 rule 3 of CPC by
the parties to the said suit. The Ex.P16 is the
compromise decree passed in the said suit. It is the
specific case of plaintiff that when his mother was
suffering from ailment of cancer and unable to execute
any document by that time without existence of
document propagated that a gift deed in respect of suit
property was registered and their by suit property was
gifted absolutely in favour of his younger brother
Manjunath Reddy and thereby he was filed a suit for
cancellation of such gift deed if any and thereafter, the
said suit was ended in a compromise between him and
his brother Manjunathreddy and accordingly the said
compromise decree was passed. As rightly submitted by
the counsel for the defendants 2 to 4, they are not parties
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to the said suit. Muchless, it is no body's case in the
present suits that such gift deed was executed by their
mother in favour of Manjunath Reddy or in favour of any
others and claiming right over the property on that
strength. Therefore, in my opinion, whatever the
pleadings and findings of the said suit are judgment in
personem and binding only against the plaintiff - Mohan
Reddy and deceased defendant No.1 of the present case.
41) The Ex.P20 is the certified copy of deposition of
Smt. Shashikala, who was the defendant No.1 in
O.S.No.2940/2002 on the file of CCH13. On plain
reading of the same, the execution of the Will dated 26
121997 by her mother bequeathing the suit property in
favour of plaintiff Mohan Reddy is clearly and equivocally
admitted and not at all challenged the same in any
manner as now contended as it is got up by playing fraud
except contending that, the said Will was canceled by her
mother by executing a registered deed of cancellation of
the said Will. It is argued by Sri. V.B.Shivakumar, the
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learned counsel for plaintiff that, in view of first time
propounding the said cancellation deed dated 571999
by the defendants 2 to 4 in the said suit, the plaintiff
required to file the present suit O.S.No.1887/2004. The
said defendant No.2/ Smt. Shashikala is not at all
examined in the present suit and her testimony as per
Ex.P20 is binding on all the defendants 2 to 4. If it is so,
certainly the heavy burden completely shifted on the
defendants 2 to 4 to prove the deed of cancellation of the
Will/Ex.P1 by their mother Muniveeramma as
contended by them as the same is propounded by them.
42) In my opinion, the cancellation of Will/Ex.P1 is
required to be prove by the defendants No. 2 to 4 as per
section 63 of Indian Succession Act and Section 68 of the
Indian Evidence Act by dispelling all the suspicious
circumstances to discard the testimony of P.w.1 about
his specific contentions in respect of such cancellation
deed dated 571999 propounded by the defendants 2 to
4. Accordingly, I carefully evaluate the oral and
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documentary evidence placed by the defendants in order
to prove the cancellation of Ex.P1 as propounded by them
by keeping in my mind about the specific contentions of
plaintiff that, the said registered deed of cancellation of
Ex.P1 propounded by defendants 2 to 4 is a created by
impersonation as his mother was in Paragi at that time
and she was not in good state of mind and health as she
was diagnosed throat cancer and due to continuous
treatment for the cancer, she lost her hear, vision and
balanced state of mind and unable to walk etc about the
bad health condition of his mother and thereby the
execution of the same by Smt. Muniveeramma itself is
seriously disputed.
43) D.w.1 Smt. Choodamani is the defendant
No.4, who entered in to the witness box to substantiate
the case made out by the defendants 2 to 4. The sum
and substance of her chief examination affidavit are that,
the plaintiff fraudulently obtained WILL dated 2612
1997/Ex.P1, but, her mother Late Smt. M. R.
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Muniveeramma was canceled the same by executing the
registered cancellation deed dated 571999 while she
was having a sound state of mind and health. According
to her, during the month of May, June, and July 1999,
her mother was having good state of mind and health and
apart from this deed of cancellation, she had also
executed several registered documents in different places.
One of such documents is in favour of daughter of the
plaintiff. Though her mother was suffering from cancer
since 1987 and she had undergone surgery at twice and
took treatment at Kidwai Hospital and also Chaya
Nursing Home, but she had good state of mind till her
death on 2871999. This piece of her own testimony
clarified a point that, though, her mother had Right
breast cancer in the year 1987 as evident by Ex.D2 as
pointed out supra, but there was no any impediment for
her to execute ExP1 in the year 1997 and this piece of
her testimony very well supported to believe the evidence
of P.w.1 and 2 that, on the day of Ex. P1 the testatrix was
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of sound mind and health.
44) The Ex.D1 is the certified copy of the said
registered deed dated 571999 of cancellation of
Will/Ex.P1 said to have been executed by Smt.
Muniveeramma. The certified copy of the same is
obtained on 2372005 by one Vijay S. Looking to the
same, prima facie, it appears that, the same was
executed at Bangalore on 571999 and registered in the
office of subregistrar of Shivajinagar, Bangalore under
Book No.III (141 samputa) page 135137. The recitals of
the same speaks as under :
" This deed of cancellation of will made and executed
at Bangalore on this the 5th day of July one thousand
nine hundred and ninety nine (571999), by me M.R.
Muniveeramma wife of late Nanji Reddy residing at
No.34, Udane Layout, Ulsoor Bangalore560008
witnessed as follows: whereas I had executed and
registered as Will on 2671997 registered as No. 328
of 9798 in book no. III volume No. 131 at page no.
124125 registered in the subregistrar Shivajinagar
Bangalore in respect of my immovable property
bearing corporation no. 35 situated at on account
of present changed circumstances is hereby revoke
and cancel the aforesaid will out of my own free will
and volition".
Thus, as rightly argued by the learned counsel for the
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plaintiff that, the above recitals if read, prima facie it is
not revealing that the said cancellation if true, the same
was not for the reason that the Ex.P1 was obtained
fraudulently and nothing is arising any doubt about
genuine execution of Ex.P1 and bequest of the suit
property in the year 1997 absolutely in favour of the
plaintiff. On perusal of Ex.D1, prima facie, it appears
that said Vijay S., who obtained the certified copy of the
same is one of the attesting witness to the said Ex.D1
along with another witness by name R.
Ramachandrappa, who identified the testatrix before the
subregistrar and it was drafted by K. Mohan, a
document writer. Admittedly, the mother of the parties to
the suit was suffering from cancer and ultimately by
heart decease died in the hospital while under treatment
just one month and 23 days after the said Ex.D1. In view
this and serious denial of the execution of the same by
Smt. Muniveeramma mere production of Ex.D1 as
secondary evidence is not enough and as per settled
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principles of law, the burden equally upon the defendants
2 to 4 not only to prove the execution of the same, but
also to prove that she was in sound state of mind and
health to overcome all the suspicious circumstances
surrounded to it.
45) The defendants 2 to 4 examined aforesaid S.
Vijay S/o. Late M. Srinivas as D.w.2, who is one of the
attesting witnesses to the said Ex.D1. Admittedly, he is
the son of defendant No.2/Smt. Shashikala. He filed his
affidavit evidence for his chief examination. The sum and
substance of the same are that, on 571999, her grand
mother Smt. Muniveeramma was residing with her sister
at Ramachandrapura village. He was called by Smt.
Muniveeramma, her brother in law i.e, another witness
R.C. Ramachandrappa asked him to come and take her
to Bangalore city and on being he asked to them the
reasons, they told him that she will going to cancel the
Will executed by her and accordingly he went to
Ramachandrapura village by car in around 10.30 a.m..
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Thereafter, he along with, his grandmother and
grandfather came to Bangalore and went to advocate
office of Sri. K. Mohan, wherein, his grandmother gave
instruction to advocate for cancellation of will along with
some documents. The said Advocate Sri. K. Mohan
drafted and all they went to Subregistrar office at
Shivajinagar, Bangalore by around 2.30 p.m, wherein
said Mohan read the contents of cancellation of Will to
Smt. Muniveeramma and to them and the same were
accepted by his grandmother Muniveeramma.
Thereafter, the advocate took signatures of Late
Muniveeramma to the document in their presence and
thereafter R.C. Ramachandrappa was signed as a Ist
attesting witness and then he has signed as a second
attesting witness and then the advocate K. Mohan was
put his signature. It was register around 400 p.m on the
same day i.e on 571999. He deposed that at the time of
cancellation of will his grandmother was in sound state of
mind and can identified her signature and his as well as
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another attesting witness signatures on Ex.D1. However,
no chance for him to identify such signatures as the
Ex.D1 is a certified copy and ultimately he did not
identify the signatures as required by law, though the
concerned documents like Ex.D4/Registers were
summoned from the office of the Subregistrar. No efforts
is made to secure original copy of the will from the office
of SubRegistrar.
46) It is an admitted fact that, the plaintiff Mohan
Reddy is a government employee and accordingly
permanently residing at Pargi village in Andra Pradesh.
His daughter was studying in Bangalore. He was get a
rented house in Bangalore wherein, his daughter and the
wife of Plaintiff were residing. It is his specific case that
whenever his mother Muniveeramma was taking
treatment for cancer at Bangalore, by that time his wife
and daughter were look after her and at the alleged time
of Ex.D1 her mother was with him in Paragi village, but
not in Bangalore. Per Contra, denying the same, it is the
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specific contention of defendants no. 2 to 4 that, all the
while their mother is residing with one of them and they
look after her all the while and she never residing with
plaintiff at Paragi during the disputed period. Such being
their specific contention in their written statement,
certainly the original of Ex.D1 is with them or they very
well knew about the original of Ex.D.1. But, they never
disclosed anything about the original of Ex.D1 in any
corner of their lengthy pleadings in written statement
filed in the present suit or in plaint pleadings of their
partition suit. Even, no where in the chief examination of
D.w.1 disclosed about original of the Ex.D1. In fact, the
defendants 2 to 4 not at all make out any foundation for
producing the Ex.D1 as a secondary evidence instead of
primary evidence of the same, though such of their
lacuna was observed by the CCH13 in the previous suit
as per Ex.P11. Looking to the Ex.D20, Smt. Shashikala
the mother of D.w.2 never disclosed the facts as now
deposed by her son/D.w.2 in his chief examination.
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47) Sri. V.B. Shivakumar, the learned counsel for
plaintiff seriously argued that the secondary evidence
without any foundation cannot be received and the same
is inadmissible document. In support of his arguments,
he has relied upon the following decisions of the Hon'ble
Apex Court:
a) Benga Behera And Another Vs Braja Kishore
Nanda and Another, reported in AIR 2007 SC
1975, wherein it is held as under :
Evidence Act, 1872 - Section 65, 68 and 71 - Succession Act,
1925 - Section 63 - Will - Execution of - Alleged beneficiary
stranger to family - Attesting witnesses failed to prove
execution of Will - Original Will not produced - Alleged to be
lost - When and where lost not stated - No information was
lodged about missing thereof - Endorsement made by an
advocate on Xerox copy but not on certified copy - No efforts
made to compare thumb impression - No reason as to why
valuable agricultural land, homestead, and gifted to
respondent - Suspicious circumstances regarding execution
of Will - Appeal allowed.
b) State of Rajasthan And Others V/s
Khemraj And Others; reported in AIR 2007 SC
1759, wherein it is held as under :
Evidence Act(1 of 1872), S.65 - Secondary evidence -
Application for production of - Must given full details and
must be supported by a proper affidavit.
c) H. Siddiqui dead by Lrs. V/s. A
Ramalingam; reported in (2011)4 SCC 240,
wherein it is held as under :
A. Evidence Act, 1872 - Ss. 65, 66, 67, 73, 58 and 22 -
Secondary evidence as to contents of documents - Photocopy
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of document as secondary evidence - When admissible -
Admission of document - What amounts to
Admitting signature in photocopy of document, held, does
not amount to admitting contents of document - Where
original documents are not produced at any time, nor any
factual foundation laid for giving secondary evidence, it is
impermissible to allow a party to adduce secondary evidence
- Secondary evidence must be authenticated by foundational
evidence that alleged copy is in fact true copy of the original
- Further held, secondary evidence relating to contents of a
document is inadmissible, until nonproduction of original is
accounted for - In instant case, trial court inferred that there
was a specific admission by respondent that he had
executed power of attorney in favour of his brother, since he
admitted his signature on photocopy of power of attorney -
Sustainability - Held, admission of a document or its
contents may not necessarily lead to drawing any inference
unless contents thereof have some probative value - On
facts, respondent had merely admitted his signature on
photocopy of power of attorney and did not admit contents
thereof - Hence, drawing inference by trial court without
determining probative value of such admission, held,
unwarranted - Practice and Procedure - Admission
B. Evidence Act, 1872 - Ss.61 to 65, 67 and 73 - Contents of
document - Proof of - Admission of document in evidence -
Effect - Held, mere admission of a document in evidence
does not amount to its proof - Documentary evidence is
required to be proved in accordance with law - Admissibility
of a document or its contents may not necessarily lead to
drawing any inference unless contents thereof have some
probative value
C. Evidence Act, 1872 - S.65 - Admissibility of document in
secondary evidence Duty of Court - Held, court is obliged
to examine probative value of documents produced in the
court or their contents and decide question of admissibility of
a document in secondary evidence.
d) K. Periyasamy V/s. P.Ramasamy; reported
in AIR 2017 Madras 1984, wherein it is held as
under :
Succession Act (39 of 1925), S.63 - Will - Execution of -
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Genuineness - Attestors of Will deposing that Will hand
written by some other personem, though factually Will, typed
one - Testator, illiterate senior citizen, aged 70 years - No
endorsement that Will read over to testator before execution -
Genuineness of Will, not proved.
48) I have carefully gone through all the above
citations relied upon by the learned counsel for plaintiff.
In the present case, the D.w.1/defendant No. 4 during
the course of her cross examination admitted that, "her
mother executed a will in favour of Mohan Reddy."
Of course, according to her, she was not aware the said
will executed in the year 1997, but her mother informed
her about the will, after she canceled the will. However,
she is not produced the original of Ex.D1. In this
context, she was cross examined at para 7 page no 6 of
her deposition. According to her, she aware about
O.S.No. 2940/2002 and her sister Smt. Shashikala had
given evidence in that suit as per Ex. P.20. She deposed
that, on that day, she was present before the court. She
admitted that Said Smt. Shashikala had accompanied
her on the day of she giving evidence in this case, she
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was inside the court. However, she is not entered in to
the witness box. Thus, from her evidence and looking to
the Ex.P20, it is revealing that first time, the Ex.D1/
certified copy was propounded by them in the said suit
O.S.No.2940/2002. From perusal of Ex.P 20 also there
was no any foundation for producing Ex.D1 as secondary
evidence. In Ex.D11 at para no. 11, the court observed
that, during pendency of the suit after the defendants
produced Ex.D1/certified copy, the plaintiff had issued a
notice calling them to produce the original of Ex.D1, but,
the defendants did not produce the original. Looking to
the cross examination of said Smt. Shashikala in Ex.D20,
it is deposed that, on 571999, she saw the original of
Ex.D1 with her mother and thereafter, it is not available
to them. In fact, the presence of either of Defendants 2 to
4 not revealing from Ex.D1, then it is impossible for her
to saw it. The said defendant no1 in her deposition at
Ex.P20 never stated that, it was with plaintiff. Even such
case of foundation is not at all made out either in the
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pleadings of these suits or in the chief of this
D.w.1/defendant No.4. Without any such foundation,
first time, the D.w.1 defendant No.4 in her cross
examination at page 7 contrary to the testimony of Smt.
Shashikala deposed that, the original of that document/
Ex.D1 is in the custody of Mohan Reddy. When it is the
case of defendants 2 to 4 that, the plaintiff, his wife and
daughter never look after her mother, how it is possible
to come in his custody and such of her testimony is not
acceptable. Why the defendants avoid to produce the
original of Ex.D1 is best known to them.
49) Dw.1 in her further cross examination, admitted
that "her mother during June 1999 had a breast
cancer on the right side and admitted to Chaya
Nursing Home on 2141999. It is deposed that her
mother was again admitted at Ramaiah Hospital from
2841999 to 551999" denying the suggestion that
Mallige Nursing Home". It is very crucial to extract her
admission of the plaintiff's case that; "It is true on 55
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1999 my mother was taken to her native place Pargi
by her son Mohan Reddy. At the time of discharge,
from Ramaiah Medical College hospital my mother
was suffering from cancer, diabetic, hypertension, but
not heart problem. She was also suffering from lungs
problemIt is true that on 2571999 my mother was
admitted to Kidwai Memorial Hospital. The
suggestion that on 2571999, Mohan Reddy my
brother brought my mother to said Hospital from
Paragi Hospital is not correct; We went and brought
her to hospital for check up". Looking to this piece of
her testimony, it clearly goes to show that, Smt.
Muniveeramma was in Paragi Village with the plaintiff
Mohan Reddy from 551999 till 2571999. When such
being the admitted fact, how it is possible for Smt.
Muniveeramma to execute the Ex.D1 on 571999 at
Bangalore is one of the serious suspicious circumstances
surrounded to the execution of Ex.D1 and it is not
clarified from the testimony of D.w.1 from any of her
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other part of evidence. Contrary to her testimony, it is
the testimony of D.w.2 that, on the day of Ex.D1, he
brought Smt. Muniveeramma in a Car from
Ramachandrapura village which is 15 Kms away from
Ulsoor and thereby the said suspecious circumstance
remained in tact and created serious doubt about
execution of Ex.D1 and original of the same is very much
needed to prove it in accordance with settled principles of
law.
50) D.w.1 denied the suggestion that herself and
her husband forged the cancellation deed as per Ex.D1.
She denied the suggestion that Muniveeramma was not
at Bangalore but at Pargi village on that day inconsistent
to her admission. She denied the suggestion that on 57
1999 Muniveeramma was completely hospitalized and
not in a position to move about. She denied the
suggestion that, she was in custody of fabricated
document as per Ex.D1 and because of that guilty feeling
did not attend the last rite of her mother. She denied the
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suggestion that, she was the person giving most mental
harassment to her mother. Though, in further cross
examination she deposed that, she has got documents to
show that her mother was admitted to the hospital, but
none of those material documents is produced for the
scrutiny except Ex.D2. In respect of this Ex.D2 there
was question and answer during her cross, which is as
under :
Question: By looking at Ex.D2 one can make out
that Mohan Reddy admitted your mother to the hospital?
Answer : the name of Mohan Reddy is mentioned at
Ex. D2 as residential address of my mother. She
admitted that Smt. Shashikala's address is not
mentioned in Ex.D2. It is admitted that after the death of
her mother in the hospital, her dead body was taken by
the plaintiff to Paragi, wherein, the last rites was
performed by him only. Thus, from her oral evidence it is
probabalise that, all the while, the plaintiff looked after
her mother and she was with him and her last rites was
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also done by him.
51) In the result of cross examination of D.w.2/S.
Vijay, it is elicited that, he is the son of defendant No.2
and working as a Civil Contractor independently since
two years and earlier working under others. His father
was being Asst. Professor at JKVK died in the year 1987.
According to him, the Will dated 2761985 said to have
been executed by Smt. Muniveeramma bequeathing the
suit property jointly in favour of her two sons was not in
his knowledge, but, the said original will is confronted to
him and he identified all the signature of Smt.
Muniveeramma of the said original will and the same is
nothing but, Ex.P21. The Ex.P21(a) to 21(c) are identified
by him as signatures of Smt. Muniveeramma. He is also
admitted the gift deed as per Ex.P22 on confrontation of
the same to him. I have taken note that this witness was
also witnessed to the said Ex.P22. Admittedly, he is the
son of Defendant No.2 Smt. Shashikala and it is
deposed by him that, the suit vacant site is situated
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adjacent to his house. Accordingly, he appears to be an
interested witness to the case of defendants 1 to 3 and
his role clearly discloses the participation of the
defendants 1 to 3 in the process of registering Ex.D1. It
is deposed by him that, he seen Smt. Savitramma, the
sister of Smt. Muniveeramma. According to him, said
Smt. Savitramma was died about in the year 2010. It is
deposed that, said Smt. Savitramma was permanently
residing at Ulsoor, Bangalore just in the next lane of his
house, but he did not know Smt. Savitramma and
Muniveeramma were not in good terms. He did not know
said Savitramma was also signing as Muniveeramma. He
denied the suggestion that the Ex.D1 was got executed by
taking Savitramma to SubRegistrar's Office and that she
signed as Muniveeramma. He denied the suggestion that
the thumb impression of the said cancellation of the will
document is of Smt. Savitramma and not of
Muniveeramma. He denied the suggestion that,
Muniveeramma had lost hearing and eyesight. Though,
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he admitted that, he aware about Muniveeramma was
suffering from breast cancer and also diabetic and
claimed that he took her for medical treatment on
number of occasion, but unable to say how long period
she was suffering so and due to diabetic her one of the
toes was amputated. He denied the suggestion that
Muniveeramma was bedridden and unable to come out of
the house is not correct.
52) As per D.w.1, from from 551999 till 257
1999 Smt Muniveeramma was in Pargi village, whereas
D.w.2 denied the suggestion that on 571999
Muniveeramma was at Pargi village bedridden and
unable to come out and contrary deposed that she was in
the house of her sister. Even, there is no any pleadings
that as on the date of Ex.D1, Smt. Muniveeramma was in
the house of her sister as deposed by D.w.2. Thus, there
is inconsistency in the evidence of D.w.1 and 2 and
same is contrary to the pleadings. Of course, as pointed
out by the learned counsel for the defendants 2 to 4, the
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P.w1 during the course of his cross examination at para 7
on page 5 in beginning line deposed that, "From May 1
1999 till June 1999 his mother was at Pargi village
residing with him". However, it does not mean that,
Muniveeramma was not with him during the relevant
period as admitted by D.w.1 in her testimony or she was
in the house of her sister at Ramachandrapura village on
the day of Ex.D1. In fact, no where in the result of cross
examination of P.w.1 it is elicited that on the date of
Ex.D1 Muniveeramma was in the house of her sister or
even no suggestion to that effect to him. This apart,
there is no such pleadings of defendants 2 to 4 to that
effect.
53) According to D.w.2, another witness to the
Ex.D1 by name Ramachandrappa is none other than the
husband of one Smt. Prabhavati of Ramachandrapura
village, who is one of five sisters of Smt. Muniveeramma
and said witness Ramachandrappa is alive and knew
about K. Mohan Advocate, who is a scribe of Ex.D1.
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Accordingly, said Ramachandrappa is the best available
independent witness to the Ex.D1, but he was not chosen
to examine rather than the son of defendant No.2, who
being civil contractor and son of defendant no.2 appears
to be an interested witness to deprive the rights of the
beneficiary of the Ex.P1 as argued by the learned counsel
for the plaintiff cannot be possible to thrown out.
54) The Ex.D4 is the Thumb Impression Registers
No.538 dated 22.06.1999 at Serial No.III96/19992000,
maintained in the Subregistrar Office was summoned
which is marked as Ex.P4(a) from the D.w.3/an Expert,
who is admittedly not an eye witness to the Ex.D1. No
efforts is made to identify the disputed signatures of
Muniveeramma therein by any one of the attesting
witness as required under law. Mere marking of a
document as Ex.D1 as a secondary evidence is not a
proof of its execution and contents that too a Will
within the settled principles of law laid down in Section
67 and 68 of Evidence Act and provisions of Succession
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Act 1925. When, there is specific contention that
signature of Smt. Muniveeramma was impersonated in
the Subregistrar Office and admission of D.w.1 that her
mother was at pargi as pointed out above, the
identification of signature of testatrix of the disputed
document of cancellation deed at least found in Ex.D4(a)
by any one of the attesting witness is must. It is not
identified by D.w.2. Looking to the Ex.D1/certified copy
it appears that one attesting witness Ramachandrappa
was identify the executrix of Ex.D1 before the Sub
registrar. Therefore, in my opinion, the said witness
Ramachandrappa is the only best direct witness for
identification of the signatures appeared in the
summoned registers/Ex.D4(a) and deposed that such
signatures are belonging to Muniveeramma only but not
impersonated. However, the said material best evidence is
not examined and accordingly the proof of execution of
Ex.D1 as required under the settled principles is lacking
as rightly argued by Sri. V.B. Shivakumar, the learned
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counsel for the plaintiff. In this context, he has placed
several citations as under :
I) Full Bench Landmark decision of the
Hon'ble Apex Court in a case between H.
Venkatachala Iyengar Vs B.N. Thimmajjamma
and Others; reported in AIR 1959 SC page
443, wherein it is held as under :
Evidence Act, 1872 - Sections 67, 68, 45, and 47 -
Execution of Will - Proof of - The burden of proof is on the
person propounding the Will.
II) In a case between Daulat Ram and Others
Vs. Sodha & Others; reported in AIR 2005 SC
233, wherein, it is held as under :
Will - Proof of execution suspicious Circumstances Two
Wills By earlier Will, testator bequeathed all the
properties in favour of his nephews i.e., appellants by
disinheriting his wife and daughter Execution of second
Will just days before the death of testator by revoking
earlier Will By and Will the properties bequeathed in
favour of his daughter, i.e., R1 R1 filing suit for injunction
Appellants alleged second Will as forged However, neither
any issue framed nor evidence lead on the point of forgery
Only suspicious circumstances, surrounding the Will
pointed out is that second Will consists of testators, thumb
mark whereas earlier, his signature, therefore to be
disbelieved.
III) Smt. Jaswant Kaur V/s Smt. Amrit Kaur
and Others; reported in AIR 1977 SC 74,
wherein it is held as under :
Succession Act, 1925 - Section 63 Execution of Will
Suspicious Circumstances Absence of explanation by
propounder of Will in respect of suspicious circumstances
surrounding the execution of will - The execution of Will
held to be not proved.
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IV) Josheph Antony Lazarus (Dead) by Lrs. Vs.
A.J. Francis reported in AIR 2006 SC 1895,
wherein the Hon'ble Apex Court held as
under :
Succession Act, 1925 - Section 272 - Probate of Will -
Genuineness - Respondent questioned validity and
genuineness of Will in respect of property - Division Bench
dismissed application on various ground, namely, (1)
testatrix was 83 years old and not physically fit, (2) she
had undergone an operation before registration of Will, (3)
testatrix twice fallen and broken her thigh bone and had to
undergo on operation, (4) out of four sons, appellant alone
was residing in the suit house, (5) Advocate on whose
instructions Will was drafted and the Subregistrar before
whom it was presented for registration were not
examined, (6) two signatures on each page of the Will were
entirely different with those appearing on photo copy
Division Bench concluded that there was no proof that the
document was ever read over and explained to testatrix
before it was registered - Cumulative effect of
circumstances taken together give rise to a genuine doubt
regarding genuineness of Will whether it was executed by
her on her own free volition - No reason to differ with the
view taken by the Division Bench of High Court - Appeal
dismissed.
55) It is pertinent to note here that, the records
speaks that, after closure of the evidence of the
defendants side, the case was posted for arguments. My
predecessorsinoffice heard the arguments of plaintiff
side and while the case was posted for defendant's
argument i.e., on 25.09.1992 the I.A.No.11 to 13 were
filed by defendants for summoning the Register of Wills
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dated 26.12.1997 and Register of deed of cancellation of
Will dated 05.07.1999. Thumb Registers of both
documents were produced by the concern Subregistrar.
Ultimately, the same were directly sent to the Court
Commissioner/Finger Print Expert i.e., Truth Lab at the
instance of defendants 2 to 4 without marking the
relevant signatures on it from the attesting witness as
discussed supra. On 26.09.2014, the Commissioner
report from the Truth Lab was received. The plaintiff has
filed his serious objection to the said Commissioner
report and pray to reject the same. After hearing of both
side, my predecessorsinoffice on 14.09.2015 refused to
reject the said report and issue summons to the finger
print expert for his examination. Accordingly, the Finger
Print Expert by name K.S. Teekaram of Truth Lab was
examined as D.w.3. It is material to note that, the
Ex.D4(a) is marked by D.w.3 during the course of his
cross examination.
56) As per Ex.D3, the D.w.3/Teekaram has given his
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opinion that "the disputed left Thumb Impression in
Ex.D4(a) appears in serial No.III96/19992000 on the
Thumb Impressions register No.538 dated 22.06.1999
is identical with the admitted left Thumb Impressions
of M.R. Muniveeramma of original Will/ Ex.P1 dated
26.12.1997. The D.w.3/ Teekarama in his chief
examination deposed about the said report. According to
him, he mentioned in his report/Ex.D3 the disputed left
hand Thumb Impression as 'D' and admitted left hand
Thumb Impression as 'S2'. The learned counsel for the
plaintiff cross examined him at length.
57) During the course of cross examination, D.w.3 ,
though deposed that, the Thumb Impression of M.R.
Muniveeramma on Ex.P1 is very clear and visible and
there is no confusion with regard to the clarity and on
the basis of the same, an opinion can be given, but
ultimately looking to the Ex.D4 and D4(a) i.e., the
disputed Thumb Impression of M.R. Muniveeramma, he
deposed that some portion of the said disputed Thumb
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Impression found as "smudged". He denied the
suggestion that, the Ex.D4(a) is fully smudged. He
admitted that, in his report at Ex.D3, he was not
mentioned whether the said Thumb Impression is party
smudged or fully smudged. According to him, he has
taken the enlarged photograph of Thumb Impression, he
deposed some photographs of disputed Thumb
Impression also shows smudging of Thumb Impression.
He deposed that in both disputed and undisputed Thumb
Impression he did not get the tip portion of the Thumb
Impression. He denied the suggestion that, nearer
relative (blood relative) may have a similarity regard to
the Thumb Impression. It is deposed by him that, he has
taken 8 characteristic of the Thumb Impressions.
According to him, Characterizations mentioned at 1 to
8 of the Thumb Impressions in the admitted
signatures may be appear in another person. It is
deposed that, there are other characterizations other
than the 8 taken by him, and he has not at all taken
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them for marking. Ultimately, he denied the suggestion
that the disputed Thumb Impression is of another
person. He denied the suggestion that, if total
characterizations examination are taken there will be
dissimilarity. He denied the suggestion that, he has not
given a total analysis report because the disputed Thumb
Impression is smudged.
58) Sri. Sangamesh G.Patil., the learned counsel for
the defendants No.2 to 4 has vehemently argued that
from the report at Ex.D3 and evidence of D.w.3 is very
clearly falsified the contention of the plaintiff that Ex.D1
is a registered document by impersonation. According to
him, the said evidence of expert coupled with testimony
of D.w.2 clearly proved the execution of Ex.D1 by
Muniveeramma and thereupon, it is his submission that
the Ex.P1 is no longer survive as a last Will and no right
accrued to the plaintiff on the basis of Ex.P1. In this
context, he has relied two decisions of the Hon'ble Apex
Court as under :
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(a) In a case between Mohan Lal and others
Vs. Ajit Singh and others; reported in 1978 (3)
SCC PG 279, wherein, the learned counsel
relied upon para No.44 to 46 regarding
evaluation of report of Finger Print Expert as
under:
"44. We have examined the evidence of the prosecution
regarding the taking of specimen fingerprints of the
respondent, their comparison and examination with the
fingerprint on the currency note by the Director, Finger
Print, Bureau, Phillaur, and his report Ex.P. BB. As the
impression mark A on the currency note was partly
smudged and partly on the design and the printed writing,
it was photographically enlarged along with the right
middle finger impression of the respondent, and the two
photographic enlargements were marked A/A and 1/1
respectively. The Director has given the opinion that the
photographically enlarged impression marked A/A was
"partly smudged but, otherwise, it is comparable and
there exist sufficient (not less than 8) points of similarity
i.e. matching ridge characteristic details in their identical
sequence, without any discordances, between its
comparable portion and the corresponding portion of the
photographically enlarged right middle finger impression
of Ajit Singh marked 1/1." The Director has further stated
that he had graphically shown the 8 points of similarity
"in their same form and position" and had indicated the
"nature, direction and sequence of each point" in it's
relevant circle. He has expressed the categorical opinion
that so many points of similarity could not be found to
occur in impressions of different thumbs and fingers and
that they were therefore, "identical" or were "of one and
the same person." There were other impressions also on
the currency notes, but they were either sufficiently
smudged and partly interfered with by the design and the
printed matter of were sufficiently faint and were rejected
as unfit for comparison.
45. Nothing - substantial has been urged to challenge
the opinion of the, Director of the Finger Print Bureau, and
all that has been argued is that as there were only, 8;
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points, of similarity, there was not enough basic for the
expert's opinion about the identity of the fingerprints.
Reference in, this connection has, been made to B.L.
Saxena's, Finger Prints, Foot Print. $ and Detection, of
Forgeries", 1968 edition, page 247, Walter R. Scott's
"Fingerprint Mechanics" page 62, and, M.K Mehta's "The
Identification of Thumb Impressions and, the Cross
Examination of Finger Print Experts" 2 nd edition page 28.
We have gone through these books but they do not really
support the argument of the learned counsel for the
respondent. While referring to the old practice of looking
for a minimum of 12 identical characteristic details,
Saxena has admitted that the modern view is that six
points of similarity of pattern are sufficient to establish the
identity of the, fingerprints. Walter Scott has stated that
"as a matter of practice, most experts who work with
fingerprints constantly satisfy themselves as to identity
with eight or even six points of identity. Mehta has also
stated that in the case of blurred impressions the view of
some of the Indian experts is that if there were three
identical points, they would be sufficient to prove the
identity.
46. There is no gainsaying the fact that a majority of
fingerprints found at crime scene or crime articles are
partially smudged, and it is for the experienced and
skilled fingerprint expert to say whether a mark is usable
as fingerprint evidence. Similarly it is for a competent
technician to examine and give his opinion whether the
identity can be established, and if so whether that can be
done on eight or even less identical characteristics in an
appropriate case. AS has been pointed out, the opinion of
the Director of the Finger Print Bureau in this case is clear
and categorical and has been supported by adequate
reasons. We have therefore no hesitation in accepting it
as correct".
(b) The learned counsel for the defendants No.2
to 4 also placed one more decision in a case
between Jaspal Singh Vs state of Punjab
reported in 1990(1) SCC 487 relied upon the
observation made by the Hon'ble Apex Court
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at para 8 as under :
"8.............. the science of identifying thumb impression is
an exact science and does not admit of any mistake or
doubt".
The learned counsel for defendants No.2 to 4 also placed
the synopsis i.e., the pages 135 to 169 from a book
namely viz., Forensic Science in criminal investigation
and trial and pages 130 to 133 from a book namely
Encyclopedia of Forensic Science in support of his
arguments.
59) As a counter, Sri. V.B. Shiva Kumar, the
learned counsel for plaintiff relied upon the testimony of
D.w.3 in the cross examination about admitted smudges
in the disputed Thumb Impression and the tip of the
thumb, and also for nonconsideration of documents like
Ex.P1, Ex.P21, 21(a) to (c) it is vehemently argued that
the report of the D.w.3 as per Ex.D3 is to be discarded
and disbelieved. In this context, the learned counsel
placed a report of the author of a practical finger print
i.e., "Thumb Impression and handwriting expert" by B.C.
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Bridges, August Vollmer, M. Monir. Also relied upon
decisions of our Hon'ble High Court and Hon'ble Apex
Court. In a case between Parappa and Others Vs.
Bhimappa and another reported in (2008) ILR (Kar)
1840, wherein, he pointed out the observation of the
Hon'ble High Court at para No.16 and 22 as under :
"In a civil proceedings when an expert is appointed as a
Commissioner by the Court at the instance of one of the
parties to the proceedings, the Court may issue
commission to such experts for the purpose of elucidating
any matter in dispute directing him to make such
investigation and to report thereon to the Court. It is
thereafter when the commissioner/expert submits his
report to the Court which appointed him, the report of the
Commissioner shall become evidence in the suit and shall
form part of the record. Therefore, the report of the
commissioner/expert prepared and submitted on the
orders of the Courts stands on a totally different footing in
the matter of admissibility than the report of an expert
prepared at the instance of either of the parties of the suit
or at the instance of the prosecution in a criminal case.
This fundamental difference is to be borne in mind before
appreciating the report of the expert/Commissioner".
"The evidence of finger impression is admissible.
But, the person giving his opinion as in other cases must
be an expert. Comparison is to be made with finger
impression proved beyond doubt or admitted. Expert
opinion on finger prints has the same value as the opinion
of any other expert, eg. medical opinion, & c; in each case
the evidence is only a guide to judge of its value. The
Court is at liberty to sue its own discretion and to affirm or
to differ from the expert opinion. The evidence of an expert
is in the nature of opinion evidence. It is advisory in
nature. It is not conclusive. It is not substantive evidence.
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However, the Courts before acting on such an expert's
evidence insist corroborative evidence. It is not a rule of
law. It is a rule of caution and prudence. The expert's
evidence should contain reasons. The Court should be
careful in looking at such evidence and examining the
same. However, it is wrong to think that the expert's
evidence cannot be acted upon without corroboration.
When the Courts have declared that the corroboration is a
must they did not mean without corroboration the expert's
evidence is admissible. Expert's evidence would not
become evidence automatically. The weight of the
evidence is dependent on the correctness of the report, the
reasons given and their expertise in the filed".
60) The learned counsel for plaintiff also relied one
more decision of the Hon'ble Apex Court in a case
between Jaspal Sing Vs. Jindra and another reported
in AIR 1979 SC 1708, wherein it is held as under :
(A) Evidence Act(1872), Section 45 - Expert evidence
Thumb Impression - Science of identifying thumb
impression is an exact science and does not admit of any
mistake or doubt.
Another Full Bench decision of the Hon'ble Apex
Court in a case between The State of Gujarat Vs.
Vinaya Chandra Chhota Lal Pathi reported in AIR
1967 SC 778, wherein it is held as under :
Evidence Act, 1872 - Section 45 - Expert evidence _
Necessity of - Proof of handwriting - Reliance on the
evidence of a person who is not a handwriting expert is
not permissible.
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The opinion of handwriting expert is relevant in view of
Section 45 of the Evidence act, but, that too is not
conclusive. It has also been held that the sole evidence of
an handwriting expert is not normally sufficient for
recording a definite finding about the writing being of a
certain person or not.
61) On careful reading of the above synopsis of both
and looking to the elaborate arguments by both sides
upon the evidence of the Expert/D.w.3, an outlook of
applying the principles of the same to the facts of the
case on hand; the crucial point arise for my consideration
is, in view of the evidence of an expert, the basic proof of
a Will as required under Section 68 of the Indian
Evidence Act and Section 63 of the Indian Succession
Act,1925 can be exempted and can the evidence of
D.w.3/Expert is a conclusive for the proof of Ex.D1. My
answer to this question is "No". Because, as per the said
provisions, basically the duty on the defendants No.2 to 4
to prove the execution Ex.D1 by Smt. Muniveeramma
when they have propounded the same. Admittedly, the
defendants No.2 to 4 have no original of Ex.D1 and they
relied upon the certified copy of the registered deed dated
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05.07.1999 of cancellation of Will/Ex.P1. Such being
their case, it is their duty to summoned such a document
of register from the custody of concerned Subregistrar
and then it is required to the D.w.2 to identify the very
signature of testatrix of such original register. However,
this basic requirement is not done. Of Course, the
defendants No.1 to 3 made some efforts at the flag ending
stage of the trial to summon the Thumb registers of
Ex.P1 and Ex.D1 as per Ex.D4. After summoning the
same, atleast, it is required to identify the signature of
testatrix appeared in the said Thumb registers by one of
the attesting witness. However, it is not done so from
D.w.2. As per Ex.D.1, one more attesting witness, who
identify the testatrix before subregistrar though alive not
examined him to identify the same. Neither scribe or sub
register is examined. Therefore, in my opinion without
basic foundation of proof of Ex.D1 as required under the
above procedures of law, the defendants No.2 to 4 wanted
to prove the Ex.D1 from an expert/D.w.3, who is not an
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eye witness to the execution of Ex.D1. It is nothing but,
to built a construction without foundation. Therefore, it
is my considered opinion that, the evidence of
Expert/D.w.3 coupled with Ex.D3 is not at all a
conclusive proof of execution of Ex.D1 by Smt.
Muniveeramma as the same are not corroborated with
other evidence on record. His evidence may be assisted
to this court, if there may be basic proof of Ex.D1 as
discussed supra. Therefore, it is improper on the part of
this court to give any opinion about the evidence of an
expert as a proof of Ex.D1 in the absence of basic proof
as required under law. Accordingly, the arguments of the
learned counsel for the defendants 2 to 4 is devoid from
merits. In view of all the above discussion, I am of the
considered opinion that the defendants No.2 to 4
basically failed to prove the execution of Ex.D1 by Smt.
Muniveeramma and registered the same in the Sub
registrar office as required under law and thereby in my
opinion, the Ex.D1 is a doubtful and a suspicious
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document.
62) Apart from this, the learned counsel for
plaintiff vehemently argued regarding the suspicious
circumstances surrounded to the Ex.D1 due to lacuna of
proof and also admission regarding severe ill health
condition of late Smt. Muniveeramma during the period
of alleged Ex.D1 and it is not overcome by the defendants
No.2 to 4 and thereupon, he requested to discard the
Ex.D1 and the same is liable to be hold a nonest null
and void required to be canceled as prayed for by
plaintiff. According to him, the plaintiff successfully
proved the execution of Ex.P1 and the same is also
admitted by defendants No.2 to 4 and he removed any
suspicious circumstances surrounded to the same.
Therefore, he requested by holding the execution of Ex.P1
by Smt. Muniveeramma while she was in a good state of
mind and health and requested to decreed the suit of the
plaintiff and dismiss the suit for partition of the
defendants No.2 to 4. In support of his arguments
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regarding suspicious circumstances surrounded to the
Ex.D1, he has relied the following citations:
i) Benga Behera & Another Vs. Braja Kishore
Nanda and Others; reported in AIR 2007 SC
1975.
ii) Sridevi and Others V/s Jayraja Shetty
and Others; reported in AIR 2005 SC page
780, wherein it is held as under:
Succession Act, 1925 - Section 63 Will - Suspicious
circumstances - proof of - Though testator was aged
about 80 years at the time of execution of Will and died
after 15 days of execution, but was hale and healthy
and in sound disposing state of mindNothing brought on
record to show that testator was not in good health or
possessed physical or mental faculties - In such case,
Will cannot said to be executed in suspicious
circumstances.
iii) In a case between Kalyan Singh Vs. Smt.
Chhoti and others; reported AIR 1990 SC
396, wherein it is held as under :
(B) Succession Act (1925), S.61 Will Genuineness - proof
- Failure of plaintiff to remove suspicious circumstances
by placing satisfactory material on record - Will could be
said to be not genuine.
iv) In a case between Madhukar D. Shende
Vs. Tarabai Aba Shedage, reported in AIR
2002 SC 637, wherein it is held as under :
(A) Succession Act (39 of 1925), S. 63 - Will - Proof -
Suspicious circumstances - Finding that Will was not
proved on basis of suspicion and conjectures having no
foundation in evidence and no relevance in facts of case
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- Factum of execution of Will challenged without any
specific pleadings by rank trespasser - No challenge put
forth by any relative of testatrix - Finding liable to be set
aside.
63) As a counter to the above, Sri. Sangamesh G.
Patil, the learned counsel for the defendants No.2 to 4
has pointed out some related testimony of P.w.1 during
the course of his cross examination and submitted that
the testimony of P.w.1 itself sufficient explanation for
removal of all the suspicious circumstances as pointed
out by the plaintiff's counsel. No doubt, as pointed out
by him during the course of cross examination at para
No.6 to 8 at page No.5 and 6 of P.w.1 some efforts was
made to brought out that during the month of May, June
and July 1999 Smt. Muniveeramma was in a good state
of mind and health and she has executed so many other
registered documents. However, the P.w.1Mohan Reddy
not supportively answered and express his absence of
knowledge to the case of the defendants No.2 to 4 to that
effect. It is deposed by him that, his mother was
exhausted due to cancer. When he has no knowledge
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about some of registered deeds said to have been
executed by Smt. Muniveeramma as the case made out
by defendants No.2 to 4, atleast they have to produced
the certified copy of such relevant deeds for the scrutiny
of this court to appreciate their case as there is no
impediment for them to do so. However, no such efforts
is made and without any of such documents before this
court, the unsuccessful efforts by way of mere
suggestions to P.w.1 in his cross examination as per
pleadings made by the defendants No.2 to 4 in oral
evidence is hit by Section 92 of the Indian Evidence Act.
Therefore, the same cannot be a proper removal of
suspicious circumstances surrounded to the Ex.D1.
When the execution of Ex.D1 by Smt. Muniveeramma
itself is not proved as required under law, is one of the
serious suspicious circumstances and apart from it, the
admission of D.w.1 regarding repeated treatment for
cancer and other ailments of Smt. Muniveeramma by
admitting to different hospitals during the relevant month
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of July 1999 of Ex.D1 as pointed out above and her death
within two months from the date of such Ex.D1 are
sufficient to say the Ex.D1 is surrounded with serious
suspicious circumstances and it is not properly removed
by the defendants No.2 to 4. Further, when the D.w.1 in
her evidence clearly admitted that during the relevant
period the mother of the parties to the suit was in Pargi
with plaintiff and there is no pleadings of defendants 2 to
4 that during that period their mother was with sister as
deposed by D.w.2, then the strong suspect about
execution of Ex.D1 by mother itself and it is not proved,
therefore the assertion of the plaintiff that the Ex.D1 is
forged by impersonation cannot be possible to disbelieve.
64) On the other hand, the execution of Ex.P1 as
required under law is proved by the plaintiff and the
same is also admitted. The Ex.P1 registered in the same
register office where in the Ex.P21 i.e., the earlier
registered Will dated 27.06.1985 was registered. The
Ex.P1 recited that, the said Will was canceled and made a
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fresh bequeath in favour of the plaintiff in respect of the
suit property. In fact, none of the parties to the suits is
claiming any right or benefit by virtue of Ex.P21. In fact,
the claim of the defendants 2 to 4 is for partition on the
ground that Smt. Muniveeramma died intestate. Apart
from this, the Ex.P1 is signed by one of the sisters of
Smt. Muniveeramma as an attesting witness and the
same is not at all denied. All these circumstances clearly
goes to show that Ex.P1 is a genuine bequest made by
Smt. Muniveeramma.
65) It is significant to note that from the evidence on
record, it clearly goes to show out of 5 sites in Bangalore,
admittedly one site each was already given to three
daughters. It is also undisputedly come on record that
out of two sons one son i.e., Late Manjunath Reddy i.e.,
defendant No.1 was unmarried and unable to earn
anything due to his physical ailment, who is depending
solely on the plaintiff for his survival and accordingly the
plaintiff all the while look after him till his death during
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pendency of these suits. It is also come in evidence that
the plaintiff and defendants 2 to 4 are well established.
The testimony of D.w.1 discloses that Smt.
Muniveeramma and the plaintiff Mohan Reddy have
respectable persons at Pargi village in Andra Pradesh.
Admittedly, the plaintiff has no any property in Bangalore
and his wife and daughter were used to reside in a rented
house for her study at Bangalore, though defendants
No.2 to 4 having their constructed houses by that time.
Under these family background, it appears to me that
there is no any suspicious circumstances surrounded to
the Ex.P1 i.e., Will dated 26121997 bequeathing the
suit property absolutely in favour of plaintiff - Mohan
Reddy by cancellation of Ex.P21 the earlier bequest and
the same appears as natural, intentional and justifiable
bequest by a mother of the parties to the suit. When the
Ex.P21 is cancelled by testatrix with intention to made
fresh absolute bequest in favour of plaintiff and there is
no proof of execution of Ex.D1 by her, the Ex.P1 is
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deemed as last testamentary document of Late Smt.
Muniveeramma - mother of the parties to the suit and it
is proved that she died testate.
66) Under all these circumstances, I am of the
considered opinion that, the plaintiff has discharged his
initial burden to prove that his mother Muniveeramma
while in sound state of mind and health executed Ex.P1
as her last Will by cancellation of Ex.P21 in the same Sub
Registrar office at Shivajinagar, Bangalore without any
suspicious circumstances. Per contra, the defendants
No.2 to 4 have failed to establish their contention that the
Ex.P1 is out come of fraud played by plaintiff and also
failed to prove the execution of cancellation of Ex.P1 by a
registered document dated 05.07.1999 as per Ex.D1 by
Muniveeramma. Therefore, my findings on issue No.1 of
O.S.No.1887/2004 and issue No.3 of O.S.No.6015/2005
is answered in the affirmative. The issue Nos.3 and 4 of
O.S.No.1887/2004 are answered in the negative.
67) Issue No.2 of O.S. No. 1887/2004 and Issue
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No.1 of O.S. No. 6015/2005 : It is the case of the
plaintiff that, his mother Smt. Muniveeramma died
testate left behind her suit property and thereby he
succeeded and became absolute owner of the same by
virtue of Ex.P1/Will. Per contra, it is the case of
defendants No.2 to 4 that their mother Smt.
Muniveeramma died intestate and claimed that the suit
property is the joint family property of them and their
brothers in spite of several testamentary dispossession by
Smt. Muniveeramma are the subject matter of this suit.
It is admitted fact between the parties to the suit that
Smt. Muniveeramma being their mother was the absolute
owner of the suit vacant site. Therefore, as per law the
mother of the parties to the suit certainly got absolute
testamentary capacity and alienable interest over the suit
property. The result of my findings on issue No.1 and 3
of O.S.No.1887/2004 and O.S.No.6015/2005 respectively
discloses that Smt. Muniveeramma was died testate left
behind genuine Will/Ex.P1 as per the case of plaintiff but
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not intestate as contended by the defendants 2 to 4.
68) While discussing about the Wills of Smt.
Muniveeramma in question, I have also discussed about
the possession of the plaintiff over the suit property. The
possession of the plaintiff over the suit property soon
after death of Smt. Muniveeramma by virtue of Ex.P4, P5,
Ex.P7 to P12, and Ex.P17 to 19 coupled with other
evidence on record clearly established. There is no
concrete evidence on the side of defendants to rebut the
presumption attached to these documentary evidence.
The Ex.P1/Will dated 26.12.1997 of Smt. Muniveeramma
came into effect after her death on 2871999 as per
Ex.P6 and thereby the plaintiff succeeded to the suit
property and the same is already acted upon. It is my
considered opinion that since, Smt. Muniveeramma died
testate, there is no question of joint possession of plaintiff
and defendants over suit schedule vacant site as the case
made out by defendants No.2 to 4 in their suit
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the defendants 2 to 4 to establish the same. Hence, my
findings on issue No.2 of O.S.No.1887/2004 is in the
affirmative and issue No.1 of O.S.No.6015/2005 is in the
negative.
69) Issue No. 5 of O.S. No 1887/2004 : In fact,
the learned counsel for defendants 2 to 4 nothing argued
on the rest of the contentions taken by the defendants
No.2 to 4 in their written statement. He fairly submitted
the main question in dispute between the parties about
the death of Smt. Muniveeramma testate or intestate. He
conceded that if this court hold that Smt. Muniveeramma
died testate then, the defendants No.2 to 4 have no case
and it is required to decreed the suit of the plaintiff
otherwise partition as prayed by defendants 2 to 4 will be
open and their suit is required to be allowed. In spite of
his arguments, on perusal of the records of O.S.No.
1887/2004, it appears to me that the office initially on
the date of filing of the suit raised an objection and to
place for hear regarding the court fee is required to pay
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under Section 38 of KCF & SV Act. My predecessorin
office was kept open the said office objection and
ultimately without hearing the same, framed issues and
tried the suit. Therefore, the duty is cast upon this court
to determine the sufficiency of court fees paid by the
plaintiff.
70) The counsel for plaintiff filed valuation slip,
wherein, he mentioned that the suit is for a decree of
declaration and the suit is valued Rs.1,000/ under
Section 24(b) and (c) of KCF and SV Act and paid Rs.25/
to the each distinct prayers. Thus, plaintiff paid totally
Rs.75/. In the light of valuation slip and office objection,
I carefully read the three prayers sought by the plaintiff
in his suit. The main relief is one for declaration that the
Ex.D1 will have to be declared as forged, fabricated,
created, concocted and it is nonest, null and void,
required to be cancelled and consequentially mandatory
relief of direction to the Subregistrar of the cancellation
of the same and also perpetual injunction against the
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defendants from dispossessing him from the suit
property. From the entire pleadings coupled with reliefs
of the plaint, if seen, though the word cancellation
referred in the main relief, it appears to be declaratory in
nature and the consequences of such declaration as
sought for is cancellation, but not specifically for the
relief of cancellation. The document sought to be declare
so is incapable of valuation. Therefore, in my opinion
Section 24(d) of the Act is applicable but not Section 38
of the KCF and SV Act as objected by the office and
accordingly the said office objection is overruled. Though,
the plaintiff in his valuation slip wrongly mentioned
Section 24(b), but properly valued the suit Rs.1,000/ as
required under section 24(d) of the Act and paid Court
fees of Rs.25/ is as per Section 24(d) and also rightly
paid Rs 25/ each to the rest of the prayers. Therefore, in
my opinion, the valuation made under section 24 of the
KCF & SV Act and total court fees of Rs.75/ paid by the
plaintiff on his plaint is sufficient. Hence, my finding on
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issue No.5 is in the affirmative.
71) Issue No 6 of O.S. No 1887/2004 : It is the
specific contention of defendants No.2 to 4 that the suit
of the plaintiff is barred by law of limitation. Neither the
counsel for plaintiff nor defendants No.2 to 4 is argued
anything about this issue. Even no whisper in their
written arguments. Ultimately, during the course of
arguments of the counsel for defendants No.2 to 4
through V.C., I specifically asked about the same to both.
In this context, the learned counsel for the defendants
No.2 to 4 has submitted that, in view of the
comprehensive suit for partition filed by the defendants
in O.S.No.6015/2005, such contention in the written
statement not at all sustained and submitted to ignore
the same. Though, he submitted so, I have to determine
this issue and accordingly I gone through the relevant
provisions to the point of limitation.
72) While discussing issue No.5, I arrived at a
conclusion that, the suit of the plaintiff is one for
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declaration of an instrument as null and void and the
consequences of the same is cancellation. Such being
the case, in my opinion Article 56 of Limitation Act is
attracted and looking to the same the period of limitation
prescribed under the said Article is within 3 years, when
the issue or registration becomes known to the plaintiff.
The learned counsel for the plaintiff referring the
pleadings in para No.18 to 22 of the plaint argued that
the certified copy of the document sought to be declare as
forged and null and void as it is impersonation was
produced first time in O.S.No.2950/2002 by the
defendants No.2 to 4 and accordingly the plaintiff came
under apprehension that the said document is injurious
to his rights over the suit property accrued by virtue of
Ex.P1. In the absence of any other submission counter to
the same on the side of defendants No.2 to 4 I have taken
into consideration of the same and inferred that the
plaintiff came into knowledge about the consequences of
such document in the suit for bare permanent injunction
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filed by him in the year 2002 when the Ex.D1 was
produced by the defendants No.2 to 4 in the said suit.
Admittedly other litigation for the relief of bare injunction
was also pending and finally disposed off and the same
are also if taken in to consideration, the present suit
O.S.No.1887/2004 filed in the year 2004 is well within 3
years from the date of knowledge and accordingly in my
opinion the suit of the plaintiff is in time. Hence, issue
No.6 of O.S.No.1887/2004 is answered in the negative.
73) Issue No 4 of O.S. No. 6015/2005 : In view
of my findings on other issues No.1 to 3 of this case, I am
of the considered opinion that the defendants No.1 to 3
who are the plaintiffs of this case are not entitled to the
partition and separate possession of any share in the suit
property as they sought for. Hence, issue No.4 is
answered in the negative.
74) Issue No. 7 of O.S. No. 1887/2004 and Issue
No.5 of O.S. No. 6015/2005 : In the result of my entire
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discussions on all the issues of both suits, I feel it is just
and proper to pass following :
ORDER
The suit of the plaintiff of O.S.No.1887/2004 is decreed to the effect that the registered deed of cancellation dated 05.07.1999 of Will is declared as null and void and consequently the Subregistrar of Shivajinagar, Bengaluru is directed to make note of it in the concerned Registers. The defendants No.2 to 4 are hereby restrained from dispossessing the plaintiff from the suit schedule property.
The partition suit of the plaintiffs of O.S.No.6015/2005 is hereby dismissed.
Having regard to the relationship between the parties to the suit, I directed the parties of both suits to bear their own costs.
The office is directed to send back O.S.No.1887/2004 C/W O.S.No.6015/2005 Ex.D4 the Thumb Impression Register to the office of Subregistrar, Shivajinagar, Bengaluru with intimation of directions forthwith by retaining copy of relevant page of Ex.D4 and D4(a).
Draw decree in both suits accordingly.
The office is directed a copy of this common judgment shall be keep in the clubbed suit O.S.No.6015/2005.
(Typed by me in my laptop and then transferred to the computer of the office by Stenographer corrected and then pronounced by me in the open court on this the 1 st day of June 2021.) (Somashekar C. Badami) I Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFFS : P.W.1 : N. Mohan Reddy P.W.2 : Narayanappa, O.S.No.1887/2004 C/W O.S.No.6015/2005 DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS: Ex.P1 Will dated 26.12.1997 Ex.P2 Certified copy of the partition deed dated 12.03.1949 Ex.P3 Order dated 06.10.1998 Ex.P4 Copy of the Khata Certificate dated 29.05.2001 Ex.P5 Copy of the assessment extract dated 29.05.2001 Ex.P6 Death Certificate Ex.P7 Tax paid receipt Ex.P8 Certified copy of the tax paid receipt Ex.P9 Certified copy of the tax paid receipt Ex.P10 Certified copy of the tax paid receipt Ex.P11 Certified copy of judgment and decree in O.S.2940/2002 Ex.P12 Certified copy of the order in RFA No.1176/2004 Ex.P13 Order sheet in O.S.No.7988/1999 Ex.P14 Compromise petition in O.S.No.7988/1999 Ex.P15 Compromise petition in O.S.No.7988/1999 Ex.P16 Compromise decree in O.S.No.7988/1999 Ex.P17 to P19 Tax paid receipts Ex.P20 Certified copy of deposition Ex.P21 Will dated 27.06.1985 Ex.P21(a to C) Signatures Ex.P22 Gift Deed O.S.No.1887/2004 C/W O.S.No.6015/2005 WITNESSES EXAMINED FOR THE DEFENDANTS: D.W. 1 : N.Chudamani @ Leelamma D.W. 2 : S.Vijay D.W. 3 : Teekaram - Court Commissioner Truth Lab DOCUMENTS MARKED ON BEHALF OF THE DEFENDANTS : Ex.D1 Certified copy of the cancellation deed dated 05.07.1999 Ex.D2 Copy of the admission registered Ex.D3 Truth Lab's report Ex.D4 Thumb Impression registers book Ex.D4(a) Relevant page of Thumb Impression book (Somashekar C. Badami) I Addl.City Civil & Sessions Judge, Bengaluru.
O.S.No.1887/2004 C/W O.S.No.6015/2005