Bangalore District Court
Smt.Revamma vs Sri.K.Singari on 21 October, 2020
IN THE COURT OF THE XXX ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH.31)
DATED THIS THE 21 st DAY OF OCTOBER 2020
PRESENT:
SRI. MAANU K.S., B.Sc., LLB.
XXX Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.NO.986/2011
Plaintiffs : 1. Smt.Revamma,
W/o K.Kempaiah,
Aged about 46 years,
2. Sri.Raghu,
S/o K.Kempaiah,
Aged 26 years,
Both R/at No.206,
2nd Floor, Varsha Ruthu Raste,
K.G.Nagar, Bengaluru-560 019.
(By pleader Sri. V.Lakshminarayana,
Adv.,)
/Vs./
Defendants : 1. Sri.K.Singari,
S/o Late Kempaiah,
Aged about 59 years,
R/at 20, 2nd Cross, Eshwari
School Road, Bengaluru -85.
2. Smt.Kempamma,
W/o Thimmegouda,
Aged about 58 years,
R/at No.1412, 2nd Cross,
Chikkalasandra Road,
2 O.S.NO.986/2011.
Hanumagiri Extension,
Padmanabha Nagar,
Bengaluru.
3. Smt.Lakshmamma,
W/o Joghi Gowda,
Aged 48 years,
R/at No.336/17, 3rd Main Road,
Hoysala Vishnuvardhana Road,
Lakshmipuram, K.G.Nagar,
Bengaluru -560 019.
4. Sri.Umesh,
S/o K.Kempaiah,
Aged about 29 years,
5. Smt.Manjula,
D/o K.Kempaiah,
Aged about 28 years,
6. Smt.Kalavathi,
D/o K.Kempaiah,
D4 to D6 are r/at No.24,
10th Cross, Kaviraj Road,
K.G.Nagar, Bengaluru -560 019.
(By Pleader Sri R.G.M. Adv. for D.1
to 3, Sri.L.S.M.Adv. for D.4 to D.6)
DATE OF INSTITUTION 03-02-2011
NATURE OF THE SUIT (Suit on Suit for Partition
Pronote, Suit for declaration and & separate
Possession, Suit for injunction, etc.) possession.
DATE OF THE COMMENCEMENT
OF RECORDING OF THE EVIDENCE 17-02-2016
DATE ON WHICH THE JUDGEMENT
WAS PRONOUNCED 21-10-2020
3 O.S.NO.986/2011.
TOTAL DURATION YEAR/S MONTH/S DAY/S
09 08 18
(MAANU K.S.),
XXX ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
4 O.S.NO.986/2011.
JUDGEMENT
1. This is a suit for partition and separate possession of plaintiffs' ½ share over the suit schedule properties and to declare that the Will dtd.19-08-1999 is not binding on them along with mesne profits and costs of the proceedings.
2. The brief facts of the plaintiffs' case are as follows:
(a). It is the case of the plaintiffs that the father of the 2nd plaintiff and defendants No.1 to 3 are all brothers and sisters. That one Singari Gowda who was the propositus, had a son by name Kempaiah and the father of 2nd plaintiff named K.Kempaiah and defendants No.1 to 3 are children of said Kempaiah.
That the plaintiff No.1 is the wife and plaintiff No.2 and defendants No.4 to 6 are the children of K.Kemapiah and the 1st plaintiff herein. That the family had ancestral properties described as A to C schedule properties which are the joint family properties of plaintiffs and defendants. The suit A schedule property is a House bearing No.96, constructed on Site No.106 situated at Sy.No. 72 of Sunkenahalli, measuring 35 ft. x 20 ft. originally belonged to Sri.Kempaiah, the father of defendants No.1 to 3 who acquired the same from CITB through a sale deed dtd.02-01-1964. That after the death of said Kempaiah, suit 'A' schedule property was partitioned between husband of 1st plaintiff and the defendant 5 O.S.NO.986/2011. No.1 and a partition deed dtd.11-09-2002 came to be executed by defendant No.1 and front portion of the same is in his occupation and the rear portion of is in their occupation and they are paying the water and electricity charges.
(b). That Late Sri.Kempaiah had also purchased suit B schedule item no. 1 site bearing No.74 formed in Sy.No. 84 measuring 40 x 30 sq.ft. Situated at Dwaraka Nagar, Hosakere Halli, Uttarahalli Hobli, Bengaluru, suit B schedule item no. 2 property bearing No.28 having khatha No.2/1 measuring 40 x 23 sq. ft. situated at Hosakeri Halli, Uttarahalli Hobli, Dattatreya Badavane, Banashankari, Bengaluru and suit B schedule item no. 3 property bearing Site No.15, formed in Sy.No. 2/1, measuring 40 x 23 sq. ft. situated at Hosakeri Halli, Uttarahalli Hobli, Bengaluru, in the name of his daughter Smt.Lakshmamma who is the 3 rd defendant herein by paying the sale consideration to the vendors. That the 1st defendant has purchased the suit 'B' schedule item No.2 property bearing No.28, Khata No.2/1 measuring 40 x 23 ft. from the original owners Sri.Venktesh, Sri.Srinivas and Sri.Narayan through a registered sale deed dtd.30-08-2004, for which the 3 rd defendant herein has stated no objection and the suit 'B' schedule item No.1 property bearing Site No.74, is in the name of the defendants No.2 and 3 who have constructed a house and are in occupation of the 6 O.S.NO.986/2011. same. That the suit C schedule properties bearing Sy.No. 16/7, measuring 17 guntas situated at Arakana Kere Village, Pandavapura Taluk, land bearing Sy.No. 96/4 measuring 40 guntas and land bearing Sy.No. 95/5 measuring 35 guntas both situated at Honnamadu, Mandya Taluk, are the ancestral joint family properties inherited by Late Kempaiah from his ancestors.
(c).That the defendant No.1 and father of plaintiff No.2 have entered into a Palupatti dtd.05-07- 2002 in respect of suit 'C' schedule properties which was only a nominal partition and the same has not been acted upon as the said Palupatti is unjust and unequitable and there was no partition by metes and bounds. That the defendant No.1 claimed exclusive rights over the suit 'A' schedule property on the ground that he has invested more than Rs.2 lakhs for the purpose of alterations and tried to dispossess them from the suit 'A' schedule property. Many attempts were made to affect partition by metes and bounds between the family members which was not finalized and very recently the 1st defendant got the khatha of suit 'A' schedule property transferred to his name based on the Will dtd.19-08-1999. That the said Kempaiah had not executed the said Will and the LTM found on the said Will are not LTMs of Late Kempaiah and he had no absolute authority to execute the said Will and as such the said Will is not 7 O.S.NO.986/2011. binding on them. That since the defendants denied their entitlement for equitable partition, left with no other option they have come up with this suit for partition and for declaration to declare that the alleged Will dtd.19-08-1999 is not binding on them and therefore prayed to decree the suit.
3. After service of summons, defendants No.1 to 3 appeared and the 1st defendant filed his written statement which has been adopted by defendants No.2 and 3 by filing a memo to that effect. The brief facts of the written statement filed by Defendant No.1 are as follows:-
(a). While admitting the relationship between the parties, the 1st Defendant denied several other averments made in the plaint. He denied that the suit 'A' schedule property is the ancestral property and contended that the same was the self acquired property of his father having been allotted by the erstwhile CITB through sale deed dtd.02-01-1964 and that the same was bequeathed to him by his father through a registered Will dtd.19-08-1999 out of love and affection towards him as he was looking after his father who was residing with him and the father of 2 nd plaintiff never cared to look after his father during his lifetime and got separated from the family long back when he jointed in to service in Armed Reserve Police and started residing at Police quarters. While denying 8 O.S.NO.986/2011. that the suit 'B' schedule properties were acquired by Late Kempaiah in the name of 3 rd defendant and that Late Kempaiah has paid the sale consideration for purchasing the said properties, he contended that the suit 'B' schedule item No.1 property is the self acquired property of 3rd defendant having purchased the same from one S.Narayana, S/o Shanbogh through a registered sale deed dtd.10-01-2002 out of her earnings as she was a Government employee and item No.2 of suit 'B' schedule property is his self acquired property having purchased the same through a registered sale deed dtd.30-08-2004 from Venkatesh, Srinivas and Narayan, all the grand children of Late Venkataswamappa and item No.3 of suit 'B' schedule property is the self acquired property of his wife having purchased the same under a registered sale deed dtd.10-01-2002 from Venkataswamappa and as such, the plaintiffs have no right of whatsoever nature over the suit 'A' and 'B' schedule properties and that the said properties are unnecessarily included in the suit schedule. However, he has not denied the averments made in para-11 of the plaint in respect of suit 'C' schedule properties, wherein the plaintiffs have contended that suit 'C' schedule properties are all the ancestral joint family properties, but he has straight away contended that the said properties were bequeathed in his favour by his father and as such, the plaintiffs have no right over the suit 'C' schedule properties.9 O.S.NO.986/2011.
(b). While denying the averments that suit 'A' schedule property was partitioned between the husband of 1st plaintiff and himself through a partition deed dtd: 11-09-2002 and the suit 'C' schedule properties were partitioned between the husband of the 1st plaintiff and himself through a Palupatti dtd.05-07-2002 and that the same are nominal partitions not being registered and that the same are binding on the plaintiffs, he further contended that no such partition has taken place.
While denying the averments that the said Will executed by his father is not a valid and genuine document and that the same is concocted and created document, he contended that the said Will is a genuine document executed by his father and as such, the plaintiffs have no right to dispute the same and the same is binding on them and that based on the said Will, he has also got transferred the khatha of suit 'A' schedule property to his name.
(c). While denying that the defendant no. 2 and 3 were given with there share at the time of their marriages and that the suit schedule properties are fetching income more than Rs. 1,00,000/- and that the plaintiffs are in joint possession of the suit schedule properties, he further contending that the plaintiffs are not in joint possession of the suit schedule properties and that the valuation made by them under Sec.35(2) of The Karnataka Court Fees 10 O.S.NO.986/2011. and Suits Valuation Act, 1958 is not proper and the plaintiffs have to pay the Court Fees on the market value of the suit schedule properties by valuing the same under Sec.35(1) of The Karnataka Court Fees and Suits Valuation Act, 1958 and that there is no cause of action for them to file this suit and that the plaintiffs have intentionally not included the properties which were standing in the name of the husband of the 1st plaintiff, he sought for dismissal of the suit with costs.
4. During the pendency of this suit, the original plaintiffs No.2 to 4, by filing an application under Order I Rule 10(2) of C.P.C., got transposed themselves as defendants No.4 to 6 and after getting transposed themselves as defendants No.4 to 6, they filed their written statement almost admitting the entire plaint averments and supporting the case of the plaintiff further contended that the suit schedule properties are all the joint family properties in the joint possession and enjoyment of themselves and plaintiffs along with other defendants and that the 1st defendant being the kartha of the joint family, has not discharged his duties as a prudent man and has fallen to bad-wises and started neglecting the needs of the family and became hostile and abusive and also created the Will dtd.19-08-1999 which is void ab- initio and not binding on them and therefore, sought for declaration to declare that they are also entitled to 11 O.S.NO.986/2011. 1/ 4th share each in the suit schedule properties and that the alleged Will dtd.19-08-1999 is void and illegal and not binding on their shares.
5. On the basis of the rival contentions taken up by the respective parties, the following issues have been framed by my Learned predecessor in office for disposal of the case:
1. Whether the plaintiffs prove that schedule-A to C properties are their joint family properties?
2. Whether the plaintiffs prove that Paalu Patti dated 05-07-2002 was only a nominal partition and that it was not acted upon?
3. Whether the plaintiffs prove that the defendants No.2 and 3 have been given separate property at the time of their marriage?
4. Whether the defendant No.1 proves that his father has bequeathed A-schedule property in his favour under a registered Will dtd.19-08-1999?
5. Whether the defendant No.1 proves that the husband of plaintiff No.1 has separated from his father long back by taking his share?
6. Whether the valuation of the suit is proper and Court Fees paid is sufficient?
7. Whether the plaintiffs are entitled for the reliefs claimed?12 O.S.NO.986/2011.
8. What order or decree?
Addl.Issue:
1. Whether defendants No.4 to 6 are entitled for share as prayed in the counter claim?
6. In order to substantiate the case made out by the plaintiffs, the plaintiff No.2 got examined himself as P.W.1 and got marked the documents as per Ex.P.1 to P.18(a). Thereafter, in support of the case of the defendants, defendant No.1 got examined himself as D.W.1, defendant No.3 as D.W.4 and attesting witnesses as D.W.2 and D.W.3 and got marked the documents as Ex.D.1 to D.13 and they closed their respective side evidence after cross-examination and the case was posted for arguments.
7. I have heard the arguments of the learned counsels for the plaintiffs and defendants. Both the counsels have filed memo with decisions. Perused the materials placed on record and the decisions submitted by both the counsels.
8. My findings on the above issues are as follows:
Issue No.1 : Partly in the afffirmative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : In the affirmative.
Issue No.5 : In the negative.
Issue No.6 : Already answered in the
affirmative by the Hon'ble
HCK.
13 O.S.NO.986/2011.
Issue No.7 : Partly in the afffirmative.
Addl.Issue No.1 : Partly in the afffirmative.
Issue No.8 : As per the final order
for the following:
REASONS
9. ISSUE NO.1:- The relationship between the plaintiffs and the defendants is not in dispute. It is an admitted fact that the 1st plaintiff is the wife and plaintiff No.2 and defendants No.4 to 6 are all the children of K.Kempaiah, who happened to be the brother of defendants No.1 to 3 and son of late Kempaiah. It is also not in dispute that the propositus of the joint family was one Singari Gowda to whom the father of defendants No.1 to 3 and late K.Kempaiah named Kempaiah was the only son. It is also not in dispute that the suit 'C' schedule properties situated at Arakana Kere and Honnamadu, Mandya District are the ancestral joint family properties of plaintiffs and defendants having been acquired by the propositus Singari Gowda through his ancestors as could be seen from Ex.P.11 set of 7 RTC extracts which pertains to all the three items of suit 'C' schedule properties. It is the case of the plaintiffs that out of the income generated from suit 'C' schedule properties, Late Kempaiah, the father of defendants No.1 to 3 had acquired the suit 'A' schedule property in his name and suit 'B' schedule properties in the name of 3 rd defendant by paying the entire sale consideration to his vendors and as such, the suit 'A' and 'B' schedule 14 O.S.NO.986/2011. properties acquired the status of the joint family properties. To prove the said contentions, the 2 nd plaintiff got examined himself as P.W. 1 and reiterated the plaint averments and got marked 18 documents as Ex.P. 1 to P.18.
10. On the other hand, defendant No.1 who has examined himself as D.W. 1 has specifically stated the suit 'A' schedule property was the self acquired property of his father Late Kempaiah and that he was working as Peon in Social Welfare Department and out of his self earnings and also by raising loan he got the suit 'A' schedule property allotted from the then CITB through sale deed dtd.02-01-1964 and thereafter, during his life time, he has discharged the said loan out of his salary income and as such, the suit 'A' schedule property was the absolute self acquired property of his father Late Kempaiah. It is his further case that the item No.1 of suit 'B' schedule property is the self acquired property of 3rd defendant as she has purchased the same from one S.Narayana, S/o Shanbogh through a registered sale deed dtd.10-01-
2002 out of her earnings and that item No.2 of suit 'B' schedule property is also the self acquired property of the 3rd defendant and she purchased the same from Venkatesh, Srinivas and Narayan, all sons of Venkataswamappa under a sale deed dtd. 30-08-2004 and she has purchased the said properties out of her self earnings as she was a government employee and 15 O.S.NO.986/2011. his father has not paid any consideration at any point of time to purchase the said properties. It is his further contention that item No.3 of suit 'B' schedule property is the self acquired property of his wife who has purchased the same from Venkataswamappa through a registered sale deed dtd.10-01-2002. To prove the said contentions, he has relied on Ex.D.3 to D.8.
11. That apart, the defendant No.3 also stepped into the witness box and examined herself as DW.4 and stated that suit 'A' schedule property was the self acquired property of her father and that item No.1 of suit 'B' schedule property was purchased by her through a sale deed dtd.10-01-2002 from one Narayana Rao, S/o Shanbhog and as such, the plaintiffs are not entitled for any share over the same and got marked the sale deed dtd.10-01-2002 as per Ex.D. 9 and her salary certificates as per Ex.D. 10 to D.12.
12. Though the plaintiffs have contended that the suit 'C' schedule properties were yielding annual income of Rs.75,000/- and out of the said income, the suit 'A' schedule property was purchased by Late Kempaiah, absolutely no materials have been placed by the plaintiffs to prove the said fact. A perusal of the oral and documentary evidence relied by both the plaintiffs and the defendants demonstrate that the suit 'A' schedule property was the absolute self acquired property of Late Kempaiah and that he was employed 16 O.S.NO.986/2011. in Social Welfare Department and worked as Peon from 1962 and got retired in the year 1991. The documents like Ex.P.3 certified copy of the Hire Purchase Agreement obtained by the plaintiffs under the RTI Act and the possession memo annexed to Ex.P.3, Ex.P.4, P.7 and P.8 Encumbrance certificates, 7 tax paid receipts which are collectively marked as Ex.P. 6 clearly demonstrates that the suit 'A' schedule property was allotted by the then CITB in favour of Late Kempaiah under Ex.P. 3 Hire Purchase Agreement and that Late Kempaiah had paid the consideration amount to the CITB by raising loan from the Social Welfare Department and discharged the same as per Ex.D.5, which clearly establishes that the suit 'A' schedule property was acquired by Late Kempaiah out of his own earnings and not from the alleged joint family funds as contended by the plaintiffs.
13. Even P.W. 1 during the course of his cross-examination has clearly admitted all the above said facts to the effect that Late Kempaiah was employed in Social Welfare Department and that suit 'A' schedule property was allotted to him by CITB and he had purchased the same by raising loan from the department and he himself has discharged the said loan out of his salary income. Therefore, from the above said oral and documentary evidence coupled with the admission of P.W. 1, it can be safely held that the suit 'A' schedule property was the absolute self acquired property of 17 O.S.NO.986/2011. Late Kempaiah. As such, this Court is of the opinion that the plaintiffs have failed to prove that the suit 'A' schedule property was acquired out of the joint family income and that the suit 'A' schedule property became the joint family property.
14. So far as the suit 'B' schedule properties are concerned, P.W. 1 has clearly admitted that he has not produced any documents to show that suit 'B' schedule properties were purchased by Late Kempaiah in the name of defendant No.3 by paying the sale consideration to his vendors. Admittedly, no documents have been produced in respect of suit 'B' schedule item No.1 and 3 properties at least to show the existence of the said properties except Ex.P. 9 the certified copy of sale deed dtd.30-08-2004 which pertains to suit 'B' schedule item No.2 property, executed by Venkatesh Srinivas and Narayan, all grand sons of late Venkataswamappa in favour of the 1st defendant herein. The plaintiffs have not produced a single scrap of paper to show that Late Kempaiah had paid the sale consideration to purchase the said properties out of joint family income earned from suit 'C' schedule properties. Except the oral interested testimony of P.W.1, nothing is on record to show that the suit 'B' schedule properties are acquired out of the joint family income. The plaintiffs have even failed to prove the existence of suit 'B' schedule item No.3 property. Even the defendants have also not produced 18 O.S.NO.986/2011. any documents to show the existence of the said property, except the pleadings and the oral evidence of D.W. 1 to the effect that the said property belongs to the wife of 1st defendant and that she has purchased the same through a sale deed dtd.10-01-2002 from one Venkataswamappa. Hence, in the absence of any document, this court cannot come to the conclusion that suit 'B' schedule item no. 3 property is in existence and that the same is the joint family property.
15. Though the plaintiffs have not produced any documents to show the existence of suit 'B' schedule item No.1 property, the defendant No.3 has however produced Ex.D. 9 the original sale deed dtd.10-01- 2002 to prove that she has purchased the said property from one S.Narayan Rao through his GPA holder who is none other than the 1 st defendant herein. A perusal of the recitals found in Ex.D.9 goes to show that the said S.Narayana Rao has executed a power of attorney in favour of 1st defendant herein in respect of item No.1 of suit 'B' schedule property and that by receiving a sale consideration of Rs. 96,000/-, he has transferred the schedule property to defendant No.3 and no where in the recitals of the said sale deed, it has been mentioned that the sale consideration was paid by Late Kempaiah.
19 O.S.NO.986/2011.16. On the other hand, defendant no. 3 has produced Ex.D. 10 to 12 salary slips which clearly demonstrates that defendant no. 3 was a government employee and had sufficient income to purchase the said property. Since the defendant no. 3 has purchased the said property through Ex.D.9 sale deed, at any stretch of imagination, it cannot be held that the item No.1 of suit 'B' schedule property is the joint family property of the plaintiffs and defendants. So far as suit 'B' schedule item No.2 property is concerned, the same is admittedly standing in the name of defendant No.1 as per the recitals found in Ex.P. 9 certified copy of the sale deed dtd.30-08-2004. Since the plaintiffs have thoroughly failed to prove that the suit 'B' schedule properties were purchased out of the joint family funds generated from suit 'C' schedule properties, at any stretch of imagination, it cannot be held that the suit 'B' schedule item No.2 property also acquired the status of joint family property.
17. During the course of arguments, the counsel for the plaintiffs vehemently argued that originally, late Kempaiah had purchased the suit 'B' schedule properties from one Venkataswamappa by paying the sale consideration out of the joint family income and the said Venkataswamappa had executed a power of attorney in his favour and later the said late Kempaiah in turn executed the said sale deeds in favour of his daughter who is the defendant No.3 herein as a GPA 20 O.S.NO.986/2011. holder of the said Venkataswamappa and as such, the suit 'B' schedule properties acquired the status of joint family properties. However, no such documents have been placed by the plaintiffs before this Court to show that GPA was executed in favour of late Kempaiah by the said Venkataswamappa and that late Kempaiah had in turn executed the sale deed in favour of defendant No.3.
18. On the other hand, the recitals found in Ex.D.9 speaks the contrary which discloses that the said Venkataswamappa had executed a general power of attorney in favour of the 1st defendant herein who had in turn executed the sale deed in favour of the 3 rd defendant on 10-01-2002. Similarly, the recitals found in Ex.P.9 also speaks the contrary which discloses that the said Venkataswamappa who happened to be the grandfather of the vendors named Venkatesh, Srinivas and Narayan, had executed a general power of attorney in favour of the 3rd defendant herein on 16-04-1984 and the 3rd defendant herein in turn gave consent for execution of the said sale deed dtd.30-08-2004 in favour of the 1st defendant by affixing her signature as a consenting witness.
19. Admittedly both the 1st defendant and the 3rd defendant being the Government employees had their own self earnings to purchase the said properties and accordingly, they have purchased the said properties 21 O.S.NO.986/2011. by exchanging them to suit their convenience. Hence, the said contention taken by the plaintiffs that the suit 'B' schedule properties are all joint family properties cannot be believed. Hence, this Court is of the opinion that the plaintiffs have thoroughly failed to prove that except suit 'C' schedule properties, suit 'A' and 'B' schedule properties are their joint family properties. Hence, there is no hesitation for this Court to answer issue No.1 in the affirmative only in respect of suit 'C' schedule properties and in the negative in respect of suit 'A' and 'B' schedule properties. Accordingly, I answer issue No.1 partly in the affirmative.
20. ISSUE NO.2 :-It is the case of the plaintiff that the defendant No.1 and the father of the 2nd plaintiff have entered into an unregistered Palu Patti dtd.05-07-2002 in respect of suit 'C' schedule properties, which is only a nominal partition and the same has not been acted upon as there was no partition by metes and bounds and the said partition is unjust and unequitable as the defendant No.1 was allotted with a total extent of 1 acre 35 guntas, whereas the father of the 2nd plaintiff was allotted only 17 guntas in suit 'C' schedule properties and as such, the said partition is not binding on them.
21. The defendants No.1 to 3 in their written statement have denied the said averments, but during the course of the evidence by relying on Ex.D.1 Palu Patti dtd.05- 22 O.S.NO.986/2011. 07-2002 they tried to establish before this Court that there was a partition in respect of suit 'C' schedule property and the said partition has been acted upon long back. However, D.W.1 and D.W.4 during the course of their cross-examinations have clearly admitted that there was no partition in respect of the suit 'C' schedule properties and that the said Palu Patti dtd.05-07-2002 has not been acted upon. That apart, Ex.P.11 a set of 7 RTC extracts pertaining to the suit 'C' schedule properties clearly disclose that the said properties are all still standing in the name of late Singari Gowda, who happened to be the propositus of plaintiffs and defendants and in column No.10, the nature of acquisition has been clearly mentioned as ancestral. Hence, without much discussion on this point, this Court is of the opinion that the plaintiffs have proved that the Palu Patti dtd.05-07-2002 was only a nominal partition deed and the same has not been acted upon and as such, the same is not binding on them. Hence, I answer Issue No.2 in the affirmative.
22. ISSUES NO.3 & 5:- Though the plaintiffs have specifically contended that the defendants No.2 and 3 have been given their separate property at the time of their marriages and as such, the defendants No.2 and 3 are not entitled for any share over the suit schedule properties, absolutely nothing has been placed by them 23 O.S.NO.986/2011. to show that the defendants No.2 and 3 were given with their share at the time of their marriages.
23. Similarly, though the defendant No.1 has also contended that the husband of 1st plaintiff and father of plaintiff No.2 and defendants No.4 to 6 got separated from his father long back by taking his share in the joint family and that the plaintiffs and defendants No.4 to 6 are not entitled for any share over any of the schedule properties, he has also thoroughly failed to establish before this Court that there was partition in respect of the joint family properties ('C' schedule properties only) by metes and bounds between himself and the father of plaintiff No.2 and he has specifically admitted that there was no partition in respect of the said properties at any time. As such, this Court is of the opinion that both the plaintiffs and defendant No.1 have failed to prove the issues No.3 and 5. Accordingly, I answer issues No.3 and 5 in the negative.
24.ISSUE NO.4:- It is the specific case of the defendant No.1 that during his life time, his father late Kempaiah was residing with him and he used to look after his father as the father of plaintiff No.2 never looked after him, who got separated long back from his father and is living separately in Police Quarters being employed in the Armed Reserve Police. It is his further contention that he has constructed a dwelling house in 24 O.S.NO.986/2011. 'A' schedule property out of his earnings and was residing in the said house by looking after his father and as such, his father had out of love and affection towards him, bequeathed the 'A' schedule property in his favour through a registered Will dtd.19-08-1999 and died on 22-07-2002 and after his death, he is in possession and enjoyment of suit 'A' schedule property by recording the khatha of suit 'A' schedule property in his name and the said fact was within the knowledge of the father of plaintiff No.2 and he had not challenged the said Will during his life time and as such, the plaintiffs have got no right to challenge the said Will.
25. On the other hand, it is the specific case of the plaintiffs that since the 'A' schedule property was the joint family property, late Kempaiah had no absolute authority to execute the said Will, that the LTM found on the said Will does not belonged to the said Kempaiah and that the said Will is a forged and fabricated document and if really the schedule 'A' property was bequeathed in favour of the 1st defendant through the alleged Will, there was no necessity for the defendant No.1 to execute the Partition Deed dtd.11- 09-2002, which itself shows the falsity of the said Will and in the above said Partition Deed dtd.11-09-2002, the front portion of 'A' schedule property was retained by the 1st defendant and the rare portion was allotted to the father of 2nd plaintiff and since there was no partition by metes and bounds, when they demanded 25 O.S.NO.986/2011. the 1st defendant to effect partition by metes and bounds, the 1st defendant has created the said Will and as such, the said Will is not binding on them and therefore, they have sought for a declaration to declare that the Will dtd.19-08-1999 is not binding on them.
26. To prove the due execution of the said Will, the 1 st defendant being the propounder of the said Will got examined himself as DW.1 and got marked the said Will dtd.19-08-1999 as Ex.D.2 while reiterating the defence set up by him. That apart, in compliance of Sec.68 of Indian Evidence Act, he has also examined the two attesting witnesses named Rajanna and G.V.Venkatesh as D.Ws.2 and 3, who have specifically stated in their chief-examination that they knew the father of the 1st defendant named Kempaiah as they were living in the same area, where the said Kempaiah was residing and that late Kempaiah and themselves were all Government employees working at the Office situated in M.S.Building and that late Kempaiah had expressed his intention to bequeath the suit 'A' schedule property in favour of 1st defendant and in this regard, he had requested them on 18-08-1999 to come to the Sub-Registrar Office on 19-08-1999 (wrongly typed as 19-09-1999 in their examination-in-chief affidavit) at Basavanagudi to witness the same as attesting witnesses and that on the said date, they went to the Sub-Registrar Office at Basavanagudi in the morning where the said Kempaiah was present 26 O.S.NO.986/2011. along with his lawyer and the said Will was prepared as instructed by the said Kempaiah and the contents of the said Will were read over by the lawyer to the said Kempaiah and the said Kempaiah after fully understanding the contents of the same has affixed his LTM on the said Will in their presence and thereafter, they attested the said Will and D.W.2 identified Kempaiah and his LTM before the Sub-Registrar, Basavanagudi and thereafter the said Will came to be registered in the office of Sub-Registrar at Basavanagudi on the same day. They have further deposed that late Kempaiah was in sound state of mind and was healthy while executing the said Will. By stating the above contents, they have identified the LTM of late Kempaiah found on Ex.D.2 as per Ex.D.2(a) to (d) and their signatures as D.2(e) & (f).
27. Despite a lengthy cross-examination of both the said witnesses, absolutely nothing has been elicited by the counsel for the plaintiffs to discredit their oral evidence except minor discrepancies regarding the mistake crept in their examination-in-chief affidavit in mentioning the date of execution of Will as 19-09-1999 instead of 19-08-1999. DWs.2 and 3 during the course of their cross-examination also have specifically reiterated that the terms of the Will were read out to Kempaiah and Kempaiah after understanding the contents of the same has affixed his LTM before them and they have also affixed their signatures in his presence. Nothing 27 O.S.NO.986/2011. has been elicited from the mouth of D.Ws.1 to 3, which creates any suspicious circumstance surrounding the said Ex.D.2 Will. Not even a single suggestion has been put to any of the D.Ws.1 to 3 suggesting that late Kempaiah was not in sound disposing state of mind and that he was not maintaining good health on the date of execution of the said Will. It is also not been suggested that the LTMs found on Ex.D.2 are not the LTMs of late Kempaiah and that he had not executed the said Will on the said date.
28. As could be seen from the plaint averments, the existence of the said Will was known to the plaintiffs much earlier to the date of filing the suit and the said Will had seen the light of the day even much prior to the filing of the suit and based on the said Will, the defendant No.1 had got the khatha of the suit 'A' schedule property transferred to his name. Admittedly, the said Will was executed in the year 1999 itself i.e. on 19-08-1999 and late Kempaiah died on 22-07-2002 as could be seen from Ex.P.5 death certificate after lapse of almost two years from the date of execution of the said Will. The father of plaintiff No.2 and defendants No.4 to 6 was very much alive when late Kempaiah died and he died on 02-04-2007 almost nearing to 5 years after the death of late Kempaiah and during his life time, he had not challenged the said Will nor has he sought for partition of the suit schedule properties. The deposition of DW.4 28 O.S.NO.986/2011. also discloses that after lapse of 3 months from the date of death of her father late Kempaiah, 1 st defendant had disclosed about the existence of the said Will to her. Though D.W.1 has admitted that he had not disclosed about the said Will to the plaintiffs till 2010 and he has not produced before any authority earlier to 2010, the fact that he had disclosed the said fact to D.W.4 long back remained unchallenged and no where in the cross-examination of D.W.1, it has been elicited that the existence of Ex.D.2 was not known to the father of plaintiff No.2 and defendants No.4 to 6.
29. Perusal of recitals of Ex.D.2 makes it clear that late Kempaiah had bequeathed the suit 'A' schedule property in favour of 1st defendant while he was in sound disposing state of mind by validly executing Ex.D.2 Will and getting it registered before the Sub- Registrar Office, Basavanagudi, Bangalore. The reason assigned by late Kempaiah to disinherit the father of 2nd plaintiff named K.Kempaiah and the defendants No.2 and 3 from the suit 'A' schedule property appears to be natural and reasonable. He has specifically stated that the suit 'A' schedule property is his absolute property and that the 1 st defendant being his elder son, has assisted him financially to construct a residential building over suit 'A' schedule property and that the father of the 2nd plaintiff has not taken any responsibility to look after him and left the family after his marriage and it is only the 1 st defendant who is 29 O.S.NO.986/2011. looking after him. He has also stated that he has shared the ancestral joint family properties situated at Mandya District equally among all his four children. All the above said recitals found in Ex.D.2 clearly demonstrates the clear intention of late Kempaiah to bequeath the suit 'A' schedule property in favour of the 1st defendant herein. Even the plaintiff No.2 who has led in his rebuttal evidence as P.W.1, has failed to create a dent or suspicious circumstance surrounding the Will. Therefore, from the above said facts and circumstances and the available oral and documentary evidence led in by the defendant No.1, this Court is of the opinion that the defendant No.1 has proved the due execution of Ex.D.2 Will by late Kempaiah and absolutely there is no suspicious circumstance surrounding the said Will.
30. During the course of arguments, the counsel for the plaintiffs vehemently argued that the Will is surrounded by several suspicious circumstances and pointed out that though the Will has been registered on 19-08-1999, the same is undated and contrary to the said fact, D.Ws.2 and 3 in their evidences have deposed that the said Will was executed on19-09-1999 and that they have not appeared before the Sub- Registrar earlier to 19-09-1999, which is one of the suspicious circumstances, which creates a doubt about the execution of the Will on 19-08-1999. He further pointed out that D.W.2 has stated that D.W.3 30 O.S.NO.986/2011. has not affixed his signature to Ex.D.2 as attesting witness, but only signed as a witness and Ex.D.2 also shows that D.W.2 is the only attesting witness as per the endorsement made before the Sub-Registrar, no where, it is recited in Ex.D.2 that the contents of Ex.D.2 were read over to the testator, that D.W.3 has not stated that he has signed Ex.D.2 as an attesting witness and as such, the said Will has not been executed as per the mandatory requirement of Sec.63 of The Indian Succession Act.
31. That apart, he also pointed out that the recitals of Ex.D.2 Will discloses that late Kempaiah had partitioned the ancestral properties situated at Mandya District and that the 1st defendant had helped him financially to put up a residential house over the 'A' schedule property, which are quite contrary to the actual facts as the suit 'C' schedule properties were not partitioned during his life time and as per the recitals found in Ex.P.3, late Kempaiah was allotted a constructed quarters over the suit 'A' schedule property and as such, question of late Kempaiah putting up construction over the 'A' schedule property did not arise and if really the said Kempaiah had voluntarily executed the said Will, he would not have stated about the said facts contrary to the actual facts and hence, all these aspects create a strongest suspicious circumstance surrounding the said Will and 31 O.S.NO.986/2011. in support of his arguments he relied upon the following decisions:
1. (2009) 4 Supreme Court Cases 780 in the matter between Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Sing & Others, wherein it has been held as under:
Succession Act, 1925-S.63 -Requirements of a valid will - Mode of proving a will - Attestation - What is and mandatory requirement of - Attestation of a will means testifying of signatures of the executant - Held, it is not a mere formality- To be valid, a will should be attested by two or more witnesses and propounder should examine one attesting witness to prove the will- Attesting witness should speak not only about testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in presence of testator-On facts, evidence of purported attesting witness (PW.2) established that he neither signed in presence of testator, nor did he know nature of the document nor were there any attesting witnesses who had signed in his presence-Held, statutory requirements for due execution of will not fulfilled- Evidence Act, 1872, S.68.
2. 1992 (2) SCC 507 in the matter between Smt.Guro vs Atma Singh And Ors., wherein it has been held at para-3 as under:
With regard to proof of a will the law is well settled that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove 32 O.S.NO.986/2011. all legitimate suspicion before the document can be accepted as the last will of the testator.
3. AIR 2003 SUPREME COURT 761 in the matter between Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, wherein it has been held as under:
(A) Succession Act (39 of 1925) , S.63(c)-- Evidence Act (1 of 1872) , S.68-- Execution of Will - Proof of -
Simply proving that signature on Will was that of testator - Not enough - Requirement of its attestation by 2 or more witnesses, is mandatory - Attestation must be proved to have been made as required by S. 63(c) of Succession Act - One attesting witness if able to prove execution i.e. if satisfies requirement of attestation of Will by other witness also - Examination of other attesting witness can be dispensed with.
4.(2006)9 SCC 515 in the matter between Joseph Antony Lazarus Vs. A.J.Francis, wherein it has been held as under:
Will-Genuineness - Suspicious circumstances - Non- mention in the Will about other sons of testatrix while bequeathing the entire property to two sons alone-Old age and indifferent health of testatrix-Existence of two different signatures of testatrix on each page of the Will -Will registered more than a year after the date of the Will -Non-examination of advocate who had drafted the will and sub-registrar before whom Will was presented for registration-Having regard to facts and circumstances, held, genuineness of the Will doubtful- Succession Act,1925, S.61
5. AIR 1962 SC 567 in the matter between Rani Purnima Debi & Ant. Vs. Kumar Khagendra Narayan Deb & Ant.
(A) Succession Act (39 of 1925), S.63 - Will - Execution
-Genuineness- Effect of registration of Will.
........The fact that the Will was registered would not be of much value. Registration may take place without the executant really knowing what he was registering.
(B) Succession Act (39 of 1925), S.63 - Will - Execution -Genuineness- -Testator not making proper provision for his wife and sister depending on him- Propounder getting sole benefit under the Will subject to maintenance of testator's wife and sister- Propounder taking part in execution of will- Signature of testator not appearing to be his usual signature- Testator in habit of signing blank papers- Signature of 33 O.S.NO.986/2011. testator not in same ink and not with same pen with which body of Will was written. - Held propounder was required to satisfactorily explain suspicious circumstances before he could get letters of administration- Witnesses examined in Court being interested -Evidence given by them not sufficient to dispel suspicion as to due execution and attestation of Will- Application for registration of will given by agent of testator for registration on commission-Sub- Registrar sending his clerk to execute the commission- Nothing on record to how that Will was read over to testator before he admitted execution of the Will- Exact words used by the clerk and exact reply of testator absent from evidence- Held that broad statement of the clerk that he examined the testator who admitted execution of the Will was not sufficient to dispel serious suspicion attaching to due execution and attestation of the Will-Held trial even registration of the will was not sufficient to remove the suspicion- Held that as the propounder was unable to dispel the suspicious circumstances which surrounded the execution and attestation of this will in the circumstances, no letters of administration in his favour could be granted on the basis of it.
32.On the other hand, during the course of his arguments, the counsel for the defendants No.1 to 3 argued that the said suspicious circumstances alleged to be pointed out by the counsel for the plaintiffs are all vague and not valid suspicious circumstances and it is by oversight while preparing the examination-in-chief affidavits of D.Ws.2 and 3, the date of execution of the Will has been wrongly mentioned as 19-09-1999 instead 19-08-1999 and mere mentioning of wrong date is not fatal to the case of the 1st defendant as the real crux of the matter of attesting the said Will by D.Ws.2 and 3 in presence of the testator and the Sub- Registrar and their animus to act as attesting witnesses has remained unchallenged and the evidence 34 O.S.NO.986/2011. in its entirety and the act of the witnesses will have to be collectively taken into consideration to gather the intention of D.Ws.2 and 3 in affixing their signatures as attesting witnesses and they need not by their express words state that they are acting as attesting witnesses.
33. He further argued that by examining both the attesting witnesses, the defendant No.1 has validly complied the mandatory provisions of Sec.68 of The Indian Evidence Act and since the plaintiffs had the knowledge about the existence of the Will prior to the date of filing the suit and have challenged the validity of the said Will on the ground of capacity of late Kempaiah to execute the said Will over the suit 'A' schedule property and that the said Will is concocted, forged and fraudulent document, it is for the plaintiffs to prove the said forgery, concoction, existence of the alleged suspicious circumstance and since no proof of the alleged fraud, concoction, forgery of the Will and the suspicious circumstance have been made out, the question of the defendant No.1 dispelling the alleged suspicious circumstance does not arise.
34. He further argued that a reading of Ex.D.2 shows that the deceased Kempaiah had the clear intention to bequeath the suit 'A' schedule property to the 1 st defendant. In support of his arguments, he relied on the following decisions:
35 O.S.NO.986/2011.1. ILR 1987(2) KAR 1225 in the matter between R.Joseph Vs. R.Aralappa, wherein it has been held as under:
WILL- Suspicious circumstances-Christian testatrix entitled to dispose of her self-acquired property by making a Will though feeble and debilitated, under Sections 63 and 59 Illustration(iii) of Indian Succession Act, 1925- Wills prepared by Counsel on instructions from clients form a distinct class - In view of clear evidence as to wish of testatrix in excluding all other brothers, bequeathing all property to one brother, absence of recital in Will does not affect validity thereof.
2. 2004 AIR SCW 6523 in the matter between Daulat Ram & Ors. Vs. Sodha & Ors.
(A) Succession Act (39 of 1925), S.61 -Will- Proof-Burden to prove that Will was forged or that it was obtained under undue influence or coercion or by playing a fraud-Is on person who alleges it to be so.
(B) Succession Act (39 of 1925), S.61 - Will- Suspicious circumstance-Evidence of scriber and attesting witnesses that testator of his own volition executed Will in favour of respondent daughter- Earlier Will executed in favour of appellants has been specifically revoked- Plea that testator was physically incapable of executing second Will since he had thumb marked it whereas earlier Will had been signed by him- Not tenable in absence of evidence showing that testator was unconscious at time of execution of second Will- second will executed by testator has been proved to be genuine and validly executed.
4. 2014(1) AKR 474 in the matter between Mrs.Maya Akber Vs. Mrs.Rani Menon, it has been held that:
Once the plaintiff was aware of the Will, it was necessary for her to plead and raise such circumstances to contend that the same would not bind her for the reasons to be put forth by her and to avoid the Will coming in her way for seeking partition so as to put the defendant on notice and also to enable appropriate issues to be raised in the suit.....Only if the suspicious circumstances has been pleaded, there would 36 O.S.NO.986/2011. have been an opportunity for legatees to dispel the same.
35.The arguments canvassed by the Counsel for the plaintiff cannot be accepted and the decisions relied by the Counsel for the plaintiff cannot be applied to the case on hand as the facts and circumstances of the above case and the facts and circumstances of the above said decisions are different. On the other hand, the arguments canvassed by the Counsel for the defendants No.1 to 3 are sound enough and acceptable and the decisions relied by him are squarely applicable to the case on hand.
36. Though the decisions relied by the counsel for plaintiffs are not applicable to the case on hand, keeping in mind the principles laid down in the said decisions, this Court is of the opinion that the defendant No.1 has proved the due execution of the Will by his father late Kempaiah. The arguments canvassed by the Counsel for the plaintiff that there was no animus attestandi present in D.Ws.2 and 3 and that they had not been to Sub-Registrar Office on 19-08-1999 and that the wrong mentioning of date of execution of Will as 19-09-1999 in their examination-in-chief affidavits, etc. cannot be accepted as D.Ws.2 and 3 in their cross-
examinations have specifically stated that they were present when late Kempaiah affixed his LTM on Ex.D.2 Will and with a view to attest, each of them have signed the said Will in the presence of late Kempaiah, which is 37 O.S.NO.986/2011. sufficient to hold that there was a valid attestation and the witness need not expressly state in his evidence that he has affixed his signatures as attesting witness to the Will.
37. In respect of the alleged suspicious circumstances pleaded by the plaintiffs that the Will was created, forged, etc., nothing has been proved by the plaintiffs to doubt the genuineness of the said Will. The other contention that there are no recitals found to the effect that the contents of the Will has been read over to late Kempaiah and hence, the Will is not binding on the plaintiffs also cannot be accepted for the reason that both the witnesses have in clear unequivocal terms stated that after the contents of the Will were read over, late Kempaiah by understanding the terms of the Will, has affixed his LTMs on the said Will and mere not mentioning about the said fact in Ex.D.2 will not render the Will invalid. Hence, from the above said discussions, this Court is of the opinion that the defendant No.1 has proved that his father had bequeathed the suit 'A' schedule property in his favour under a registered Will dtd.19-08-1999. Accordingly, I answer issue No.4 in the affirmative.
38. ISSUE NO.6:- This issue was taken up as preliminary issue by this Court and was answered in negative on 02-06-2014 itself. Against the finding of this Court on this issue, the plaintiffs have preferred a Writ Petition 38 O.S.NO.986/2011. in W.P.No.41446/2014 (GM-CPC) before the Hon'ble High Court of Karnataka, wherein the Hon'ble High Court of Karnataka by its order dtd.18-11-2019 has set aside the said order dtd.02-06-2014 and held that the valuation made by the plaintiffs is correct and proper by answering issue No.6 in the affirmative. Hence, there is no need for this Court to answer this issue again in view of the finding of the Hon'ble High Court holding this issue in affirmative.
39. ISSUE NO.7 & ADDL.ISSUE NO.1:- Since they have failed to prove that suit 'A' and 'B' schedule properties are their joint family properties and since the defendants No.1 to 3 have proved that suit 'A' schedule property being the absolute self acquired property of late Kempaiah was bequeathed to the 1 st defendant by late Kempaiah by validly executing a registered Will dtd.19-08-1999 and that suit 'B' schedule properties are their self acquired properties, the plaintiffs are not entitled for partition in respect of suit 'A' and 'B' schedule properties and for declaration that the Will dtd.19-08-1999 is not binding on them. Though the plaintiffs have failed to prove that they are entitled for partition and declaration in respect of the suit 'A' and 'B' schedule properties, since they have proved that suit 'C' schedule properties are their ancestral joint family properties, they are entitled for partition and separate possession in respect of suit 'C' schedule properties.
39 O.S.NO.986/2011.40. The defendants No.4 to 6 who were the original plaintiffs No.2 to 4, after getting transposed as defendants No.4 to 6 have claimed for declaration of their 1/4th share each in the plaint schedule properties and for further declaration that the Will dtd.19-08-1999 is illegal, void and not binding on their respective shares by filing a separate written statement. But, since they have failed to prove the said facts pleaded by them by contesting the above case and since they have not paid the requisite Court Fees, their counter claim cannot be entertained and they cannot be granted the relief separately. But, since they are sailing with the plaintiffs and the plaintiffs have proved that the suit 'C' schedule properties are the ancestral joint family properties available for partition, irrespective of their non-participation in the above suit, this Court has to declare their joint share along with the plaintiffs over the suit schedule 'C' properties, which are admittedly the joint family properties and have not been partitioned so far.
41. Admittedly, late Kempaiah had four children. It has not been elicited anywhere that late Kempaiah had left his wife behind him at the time of his death and that she is still alive. Hence, the defendants No.1 to 3 and father of plaintiff No.2 and defendants No.4 to 6 named late K.Kempaiah who are the Coparcenors are entitled for 1/4th share each over the suit 'C' schedule properties. Since late K.Kempaiah left the plaintiffs 40 O.S.NO.986/2011. and defendants No.4 to 6 as his legal heirs, the plaintiffs and defendants No.4 to 6 are jointly entitled for 1/4th share over the suit 'C' schedule properties and the defendants No.1 to 3 are entitled for 1/4 th share each over the suit 'C' schedule properties. Since the suit 'C' schedule properties are agricultural properties yielding the income, there shall be an enquiry with respect to the income generated from the said properties if the defendant No.1 fails to furnish the accounts in respect of the said income from the date of suit till effecting partition by metes and bounds. Therefore with these observations, I answer issue No.7 and Addl.Issue No.1 partly in affirmative.
42. ISSUE NO.8: In view of the above discussion and my findings on the above issues, I proceed to pass the following:
ORDER The suit filed by the plaintiffs is hereby decreed in part.The plaintiffs and defendants No.4 to 6
are entitled for partition and separate possession of their 1/4th share jointly over the suit 'C' schedule properties.
The suit in respect of suit 'A' and 'B' schedule properties is hereby dismissed.
The defendant No.1 is hereby directed to effect partition and put the plaintiffs and defendants No.4 to 6 in separate possession of their 1/4th joint share over the suit 'C' schedule properties.41 O.S.NO.986/2011.
The defendant No.1 is further directed to render accounts in respect of the income derived from the suit 'C' schedule properties from the date of suit till the plaintiffs and defendants No.4 to 6 are actually put in possession of their respective share over the suit 'C' schedule properties.
In view of the facts and circumstances of the case, both parties are directed to bear their own costs.
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer through computer, corrected, signed and then pronounced by me in the open Court on this the 21 st DAY OF OCTOBER 2020).
(MAANU K.S.), XXX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.42 O.S.NO.986/2011.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W.1 Sri.Raghu.
WITNESSES EXAMINED FOR THE DEFENDANTS/S:
D.W.1 Sri.K.Singari. D.W.2 Sri.Rajanna. D.W.3 Sri.Venkatesh. D.W.4 Sri.Lakshmamma.
DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 True copy of Family genealogical tree. Ex.P.2 Letter under RTI Act issued by BDA. Ex.P.3 Hire purchase agreement issued by BDA under RTI Act.
Ex.P.4 Encumbrance certificate
from 18-04-1963 to 31-03-2004.
Ex.P.5 Death Certificate of Kempaiah.
Ex.P.6 Tax paid receipts.
Ex.P.7 Encumbrance certificate
from 1-04-2001 to 16-10-2002.
Ex.P.8 Encumbrance certificate
from 16-10-2002 to 05-09-2007.
Ex.P.9 certified copy of sale deed dtd.30-09-2007.
Ex.P.9(a) Signature of D.W. 4.
Ex.P.10 Encumbrance certificate
from 1-04-2004 to 03-09-2007.
Ex.P.11 7 RTCs.
Ex.P.12 Death certificate of K.Kempaiah.
Ex.P.13 Endorsement issued by police.
Ex.P.14 BBMP Khata dtd.13-12-2010.
Ex.P.15 Letter dtd.18-11-2002.
Ex.P.16 Letter dtd.27-11-2002.
Ex.P.17 Certificate issued by BESCOM.
Ex.P.18 Copy of Ration card
Ex.P.18(a) Photograph on ration card.43 O.S.NO.986/2011.
DOCUMENTS MARKED FOR THE DEFENDANTS/S:
Ex.D.1 Panchayat Palu Patti. Ex.D.2 Will dtd.19-08-1999.
Ex.D.2(a) to (d) LTMs & endorsements of late Kempaiah.
Ex.D.2(e) Signature of a witness.
Ex.D.3 Notice dtd.03-07-1981.
Ex.D.4 Pension Book.
Ex.D.5 Form No.71.
Ex.D.6 Statement issued by Social Welfare
Department.
Ex.D.7 & 8 Intimations issued by KGID.
Ex.D.9 Sale Deed dtd.10-01-2002.
Ex.D.9(a) Signature of a witness.
Ex.D.10 to 12 Pay Slips of K.Lakshmamma.
Ex.D.13 Certificate issued by Asst.Director,
Social Welfare Department.
(MAANU K.S.),
XXX ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.