Bangalore District Court
Smt.G.Radha vs Sri.G.Suresh on 29 July, 2020
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY: (CCH.18)
Dated this the 29th day of July, 2020.
Present
SRI.DINESH HEGDE, B.A.,LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.5714/2017
PLAINTIFF: Smt.G.Radha,
D/o Late Sri.T.Govindarajulu,
W/o Sri.Raghu,
Aged 43 years,
R/at No.11 (New No.5)
Arab Lane, 'B' street,
Richmond town,
Bangalore- 560 025.
(By Sri.N.K.Purushothaman,
Advocate)
-VS-
DEFENDANTS : 1. Sri.G.Suresh
S/o Late H.Govindrajulu,
Aged 48 years,
2. Sri.G.Ramesh,
S/o Late Govindrajulu,
Aged 46 years,
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O.S.No.5714/2017
3. Sri.G.Sudhakar,
S/o Late Govindrajulu,
Aged 38 years,
All are residing at No.11 (New No.5),
Arab Lane, B-street 2nd cross,
Richmond town, Bangalore 560 025.
(D1 to D.3 - By Sri.CCS, Advocate )
Date of Institution of the suit : 21/8/2017
Nature of the Suit : Partition
Date of commencement of recording
of evidence : 26/7/2018
Date on which the Judgment was
pronounced : 29/7/2020
Year/s Month/s Day/s
Total Duration : 02 11 08
JUDGMENT
This suit is filed by the plaintiff against defendants for partition praying this court to declare that she is entitled to 2/5th share in the suit schedule property and also to direct the defendants to divide the schedule property by metes and bounds into 5 equal parts and 3 O.S.No.5714/2017 put the plaintiff into separate possession of 2/5 th portion of the suit schedule property and to award the costs.
2. The case of plaintiff in nutshell :-
The plaintiff and the defendants 1 to 3 are the children of Late T.Govindrajulu who expired on 28/7/2016. The mother of the plaintiff and the defendants 1 to 3 pre-deceased their father Govindarajulu and she expired on 12/10/2010. The plaintiff and the defendants are the only legal heirs left behind by late Sri.Govindrajulu to succeed to his estates.
3. It is further averred in the plaint that the plaintiff's father late Sri.T.Govindrajulu had acquired the immovable property bearing No.11 (New No.5) PID No.76-53-11 situated at Arab Lane 'B' street, 2nd cross, BBMP Ward No.76, Richmond town, Bangalore - 560 025 measuring East to West 25 feet and North to South on Western side 56 feet and on Eastern side 61 feet site 4 O.S.No.5714/2017 area measuring 1404 sq.ft with the residential building having a ground floor and first floor which is described in the schedule hereto under the partition decree in a partition suit in O.S.No.3126/1980 (old No.178/1978). The first floor portion of the schedule property is in occupation of the defendants. The ground floor portion is in the occupation of the plaintiff. The suit schedule property is an ancestral property acquired by the father of the plaintiff and the defendants in above said partition suit and it constituted a joint family property and the plaintiff and the defendants and their father late Sri. Govindrajulu had equal undivided share in the plaint schedule property.
4. It is further averred in the plaint that after the death of her mother Smt.Parvathy in the year 2010, the plaintiff was looking after her father late T.Govindrajulu who was an amputee for the last 8 years of his life. The plaintiff was married in the year 1992 and was living with her husband at Subbannapalya, Bangalore. Even 5 O.S.No.5714/2017 though the defendants were living in the same premises they were not showing much interest to look after their handicapped father. The plaintiff was coming daily to her father from her husband's house at Subbannapalya and was attending to her father at the suit schedule house. The plaintiff served her father with love and dedication till his death on 28/7/2016. Said T.Govindarajulu on 7/6/2012 duly executed his last Will and Testament bequeathing his 1/5th share in this suit schedule property in favour of the plaintiff and registered the said Will in the office of the Sub-Registrar, Halasuru, Bangalore.
5. It is further averred in the plaint that in the suit schedule property the plaintiff has got her 1/5 th share and the 1/5th share bequeathed by her father under his registered Will dated 7/6/2012. Thus the plaintiff has got 2/5th share in the suit schedule property. However after the death of the plaintiff's father, the defendants are not prepared to give plaintiff's due share in the suit 6 O.S.No.5714/2017 schedule property. Hence, the plaintiff filed a suit before this court in O.S.No.25830/2016 for permanent injunction. The said suit was settled before the Lok- Adalat reserving liberty to the parties to file a comprehensive partition suit in respect of the suit property. Hence, the said suit was withdrawn in terms of the settlement with liberty to file a fresh suit for partition reserved to any of the parties. Therefore, the plaintiff has filed this suit for partition of the suit schedule property.
6. It is further averred in the plaint that the suit schedule property stands in the name of Late T.Govindarajulu in the BBMP records and after the death of the father, the plaintiff and the defendants are in joint possession of the suit schedule property. Hence, prays to decree the suit as prayed for.
7. After service of suit summons, defendant No.1 to 3 appeared through their counsel and filed their common 7 O.S.No.5714/2017 written statement. In the written statement, they contended that the suit schedule property is a dwelling house and it is in peaceful possession and occupation of the defendants. Except the suit schedule property, the defendants have no other shelter. The suit schedule property is reserved for the residential purpose of the defendants future generation. The plaintiff has no manner of right, title or interest in the suit schedule property. The 1st and 3rd defendants are in possession and occupation of the first floor portions of the suit schedule property. The 2nd defendant is in possession and occupation of the ground floor portion of the suit schedule property. The plaintiff was never in possession of any portion of the suit schedule property. There is no cause of action for the suit.
8. The defendants have further contended that late T.Govindarajulu the father of defendants was a chronic diabetic and was bed ridden since his leg was amputated in the year 2009. Late Sri.Govindarajulu was 8 O.S.No.5714/2017 hard on hearing and his vision was impaired. He was not in a position to make rational decisions. It is the defendants and their respective wives were taking care of late Smt.Parvathi and late Sri.T.Govindarajulu during their life time. The alleged Will propounded by the plaintiff is stage managed, concocted and fabricated by the plaintiff and the same is invalid.
9. They have admitted the fact that defendant No.1 to 3 are the children of T.Govindarajulu and T.Govindarajulu who expired on 28/7/2016. They have further admitted the fact that their mother predeceased their father T.Govindarajulu and that she expired on 12/10/2010. The father of the defendants including these defendants have severed all relationship with the plaintiff and they denied that the plaintiff is the legal heir of late Sri.Govindarajulu and entitled to succeed to his estate.
10. The defendants have further admitted the fact that late T.Govindarajulu had acquired the immovable 9 O.S.No.5714/2017 property bearing No.11 (New No.5) PID No.76-53-11 situated at Arab Lane 'B' street, 2 nd cross, BBMP ward No.76, Richmond town, Bangalore - 560 025 measuring east to west 25 feet and north to south on western side 56 feet and on eastern side 61 feet site area measuring 1404 sq.ft. With the residential building have a ground floor and first floor more fully described in the schedule herein under the partition decree in a partition suit in O.S.No.3120/1980 (Old No.178/1978). However, they have denied that the ground floor portion is in occupation of the plaintiff. They have contended that they are in exclusive possession of the entire suit schedule property.
11. The defendants have further contended that the plaintiff is put to strict proof that the suit schedule property is an ancestral property acquired by late Sri.T.Govindarajulu and that it constituted joint family property and that the plaintiff and the defendants along with late Govindarajulu had equal undivided share in the 10 O.S.No.5714/2017 plaint schedule property. They have denied that plaintiff has 1/5th undivided share in the schedule property.
12. The defendants have further contended that the plaintiff was married in the year 1992 and was living with her husband at Subbannapalya, Bangalore. The plaintiff eloped, while she was underage and without the knowledge of late T.Govindarajulu and the defendants and other family members married one Raghu at Arya Samaj, Basavanagudi. The said marriage was within the prohibited degree of relationship. With her and she was ousted from the suit schedule property at time of her marriage. The plaintiff's marriage caused embarassment to late T.Govindarajulu and the family was publicly humiliated for the act of the plaintiff. Late T.Govindarajulu and the defendants since the plaintiff's marriage severed all relationship. The plaintiff is a stranger to the defendant's family. The defendants are in exclusive possession of the suit schedule property and 11 O.S.No.5714/2017 the plaintiff has no semblance of right, title or interest in the same.
13. They have further contended that themselves and and their respective wives looked after the welfare of late T.Govindarajulu for his life time. They have denied the fact that the plaintiff was coming daily to her father from her husband's house at Subbannapalya and was attending to late T.Govindarajulu at the suit schedule house.
14. The defendants have admitted that the plaintiff filed a suit before this Hon'ble court in O.S.No.25830/2016 for permanent injunction. The defendants in the said suit have undertaken not to alienate the suit schedule property as the defendants have no intention of alienating the suit schedule property and the suit schedule property is for the benefit of the future generation of the defendants families. The suit for partition filed by the plaintiff is not maintainable 12 O.S.No.5714/2017 as she has no rights, title or interest in the suit schedule property. They have admitted that the records in the BBMP office in respect of the suit schedule property stands in the name of T.Govindarajulu, however they have denied that the plaintiff along with the defendants is in joint possession of the suit schedule property. There is no cause of action for the suit and the suit is barred by law of limitation and deserves to be dismissed. Hence the plaintiff is not entitled to the relief and prays to to dismiss the suit with exemplary costs.
15. Based on the above pleadings, the following issues were framed:-
ISSUES (1) Whether the plaintiff proves that deceased T.Govindrajulu - father of plaintiff and defendant No.1 to 3 acquired the schedule property as per the partition decree passed in O.S.No.3126/1980?
(2) Whether the plaintiff further proves that deceased T.Govindarajulu-
father of plaintiff and defendant No. 1 to 3 executed his last Will 13 O.S.No.5714/2017 dated 7/6/2012 and bequeathed his 1/5th undivided share in the schedule property to plaintiff ?
(3) Whether plaintiff is entitled for 1/5th share of schedule property bequeathed to her under registered Will dated 7/6/2012 by her father T.Govindarajulu ?
(4) Whether plaintiff further proves that apart from 1/5th share bequeathed to her in schedule property by the Will executed by her father T.Govindarajulu, she is also entitled for 2/5th share as a joint family member of plaintiff and defendant No. 1 to 3?
(5) What order or decree?
16. Plaintiff herself and one of the attesting witness are examined as P.W.1 & 2 and marked Ex.P.1 to Ex.P.12. On behalf of the defendants, defendant No.1, wife of the defendant No.3 and relative of the defendants are examined as D.W.1 to 3 and marked Ex.D.1 to Ex.D.6.
17. Heard the arguments, perused the written arguments and also perused the records. 14
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18. My findings on the above issues are as follows:-
Issue No.1:- In the Affirmative ; Issue No.2:- In the Affirmative ; Issue No.3:- In the Affirmative ; Issue No.4:- In the Affirmative ; Issue No.5:- As per the final order for the following:-
REASONS
19. ISSUE No.1:- It is the case of the plaintiff that she is the daughter of T.Govindarajulu. Her father had acquired the schedule property under a court compromise decree passed in O.S.No.3126/1980. It is the further case of the plaintiff that she being the joint- family member is entitled for 1/4 th share in the schedule property. It is further case of the plaintiff that during the life time of T.Govindarjulu, he had 1/5th share in the suit schedule property and he had bequeathed his 1/5th share in favour of the plaintiff through a Regd.Will dtd:7/6/2012 and hence, she is entitled for 1/5 th share in 15 O.S.No.5714/2017 the suit schedule property that was belonging to her father.
20. Defendant No.1 to 3 are none other than the own brothers of the plaintiff. Their case is that the plaintiff was severed from the joint-family and hence, she is not entitled for any partition. They deny the execution of the Will by their father in favour of the plaintiff. With these contentions both the parties to the suit adduced the evidence.
21. Admitted facts are that T.Govindarajulu had acquired an immovable property bearing No.4 situated at Arab Lane, B street, 2nd Cross, Richmond Town, Bangalore, totally measuring 1404 sq.ft with the residential building consisting of ground and 1st floor through a partition decree in O.S.No.3126/1980. He died on 28/7/2016. His wife Smt.Parvathi pre-deceased i.e., on 12/10/2010. The plaintiff and defendant No.1 to 3 are the daughter and sons of T.Govindarajulu and 16 O.S.No.5714/2017 Smt.Parvathi respectively.
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22. The plaintiff in her evidence by way of affidavit has also reiterated these facts. Though the plaintiff has not produced the document with respect of the decree in O.S.No.3126/1980, the defendants have produced the documents to that effect. Ex.D.1 is the copy of the plaint in O.S.No.178/1978, New No.3126/1980 reveal that Jayalakshmamma @ Jayalakshmi and Smt.Krishnaveni filed a suit for partition against T.Govindarajulu with respect of a house property. Ex.D.2 is the certified copy of the compromise petition filed in the said suit reveal that the present suit schedule property fell in to the share of T.Govindarajulu. Accordingly, a decree was drawn as reflected in Ex.D.3.
23. This evidence clearly establishes that father of plaintiff and defendants acquired the suit schedule property through a partition suit. Moreover, there is no dispute regarding the acquisition of property by the 17 O.S.No.5714/2017 deceased father of plaintiff and defendants. Therefore, I answer Issue No.1 in the Affirmative.
24. ISSUE No.2:- It is the contention of the plaintiff that her father during his life time had executed his last Will dtd:7/6/2012 and bequeathed his 1/5th undivided share in the schedule property in her favour. Therefore, the burden of proving the due execution of Will by T.Govindarajulu is upon the plaintiff. Every person of sound mind not being a minor may dispose of his property by a Will.
25. Section 59 of the Indian Succession Act necessitates essentials as far as the person making Will is concerned. He must have testamentary capacity and sound disposing mind, knowledge of contents, free from undue influence, fraud, coercion and voluntary act.
26. To prove the execution of the Will, the plaintiff has been examined as P.W.1 and relied upon Ex.P.1 to 18 O.S.No.5714/2017 Ex.P.12 and also examined one of the attestor of the Will as P.W.2.
27. On perusal of the original Will marked at Ex.P.1, its contents reveal that T.Govindarajulu, aged about 74 years wrote a Will in favour of his daughter Smt.Radha bequeathing his 1/5th share in the schedule annexed to the Will. In para No.5 of the Will, it is mentioned that the testator had acquired the immovable property bearing No.11, Arab Lane, B Street, 2nd Cross, Bangalore under a partition decree passed on 29/6/1982 in O.S.No.3126/1980 old No.178/78. Para No.6 of the Will demonstrates that he is entitled for 1/5th of his share in the schedule property. In para No.8 of the Will, it is mentioned that, in order to avoid any unpleasant things in future and in consideration natural love and affection, he bequeathed his 1/5th of his schedule property in favour of his daughter Smt.Radha along with her 1/5 th share in the schedule property.
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28. In view of the admitted facts regarding the acquisition of the property by the father of the plaintiff and defendants is concerned, T.Govindarajulu treated the schedule property as joint-family property. A Hindu can bequeath his undivided share in the joint-family immovable property. Therefore, T.Govindarajulu has right to bequeath his share.
29. Ex.P.2 & 3 are the death certificate of T.Govidnarjulu and Parvathi reveal that father and mother of plaintiff and defendants died on 28/7/2016 and 12/10/2010 respectively. Ex.P.4 is the copy of the order sheet in O.S.No.26830/2016 reveal that the plaintiff herein filed a suit for injunction against the defendants and said suit came to be withdrawn with a permission to file a fresh suit for partition in respect of the schedule property. Accordingly, the plaintiff filed the present suit for partition. Ex.P.4(a) is the copy of the plaint in the same suit reveal the prayer sought by the plaintiff for permanent injunction. Ex.P.4(b) is the 20 O.S.No.5714/2017 copy of the decree in the said suit. Ex.P.5 & Ex.P.6 are the khatha extracts and khatha certificate reveals the existence of the suit schedule property and it stands in the name of deceased T.Govindarjulu.
30. Ex.P.7 is NIL Encumbrance certificate also reveal the existence of the present suit schedule property. Ex.P.8 to Ex.P.12 are the photos reveal the family gathering and marriage ceremony of the plaintiff.
31. In view of the dispute between the parties to the suit is concerned, it is necessary to look in to a decision reported in AIR 1959 Supreme Court 443 between "Venkatachala Iyengar v/s B.N.Thimmajamma and others" it was held that "unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question 21 O.S.No.5714/2017 as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof the Wills, the court will starts on the same enquiry as in the case of the proof of the documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of he dispositions and put his signatures to the document of his own free will. Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law." Therefore, the burden of proof of execution of Will lies upon the propounder of the Will i.e., the plaintiff.
32. In AIR 1962, SC 567 between "Rani Purnima Debi and another v/s Kumar Khagendra Narayan Deb and another", it was held that "if a Will has been 22 O.S.No.5714/2017 registered, that is a circumstance which may, having regard to the circumstances proves its genuineness. But, the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If, the evidence as to the registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter, he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But, if the evidence as to the registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of the Will or did not satisfy himself in some other way that the testator knew that it was a Will, the execution of which 23 O.S.No.5714/2017 he was admitting the fact that the Will was registered would not be much value. Registration may take place without the executant really knowing what he was registering."
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33. In AIR 2018 KAR 100 between "Lakshman v/s Basavanni and another", it was held that "probate can be granted only to a executor appointed under Will either expressly or under implication. Once proceedings become contentious, it is not open for the court to proceed with matter in summary way and allow parties to prove in common form".
34. In AIR 1991 SC 103 between "Gnambal Ammal v/s T.Raju Iyer and others" it was held that "cardinal maxim to be observed by courts in construing a Will is to endeavor to ascertain the intention of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or 24 O.S.No.5714/2017 speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the Will, the courts are entitled and bound to bear in mind the other matters the merely in words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that would used the words in a particular sense and many other things which are often summed up in some what picturesque figure. The court is entitled to put itself in to the testator's arm chair. But, all these is solely as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by particular testator in that document, so soon as the construction is settled, the duty of the court is to carry out the intention as expressed and none other. The court is in no case justified in adding to testamentary dispositions. In all cases, it must loyally carry out the Will as properly construed and this duty is universal, and 25 O.S.No.5714/2017 is true alike of Will of every nationality and every religion or rank of life."
35. In ILR 2008 KAR 2115 between Sri.J.T.Surappa and another v/s Sri.Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and others" the Hon'ble High Court of Karnataka held that "a careful path in the enquiry to be conducted with regard to Will. The path consists of 5 steps "Pancha Padi". The path of enquiry and steps to be traversed are as under:-
1. Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will?
2. Whether the natural heirs have been disinherited ? If so, what is the reason?
3. Whether the testator was in a sound state of mind at the time of executing the Will?
4. Whether any suspicious circumstances exist surrounding the execution of the Will?26
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5. Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925 r/w Section 68 of the Indian Evidence Act?
6.
36. Regarding the Point No.1 mentioned above, admittedly Ex.P.1 Will bears the signature of the testator T.Govindarajulu and it has been attested by 2 witnesses by name Sarala Devi and Mathaiah. One of the attesting witnesses have been examined as P.W.2 and she has categorically stated the execution of the Will by T.Govindarajulu. So, the plaintiff has proved the above point No.1.
37. Regarding Point No.2 is concerned, the plaintiff is the daughter of deceased T.Govindarajulu. Defendant No.1 to 3 are his children. Admittedly, the plaintiff and defendant No.1 to 3 are the Class-I heirs of deceased T.Govindarajulu. So, the testator has not disinherited the natural heirs by executing Will. He executed Will not in favour of any third person, but in favour of his own 27 O.S.No.5714/2017 daughter. Therefore, the above point No.2 is also in favour of the plaintiff.
38. Regarding Point No.3 is concerned whether the testator was in sound disposing state of mind at the time of executing the Will is the crucial point since the defendants have raised the doubt on the sound disposing state of mind of the testator. On perusal of the evidence of P.W.1 & 2, it is clear that T.Govindarajulu was in sound disposing state of mind. Nothing is elicited in the cross-examination of P.W.1 that since T.Govindarajulu being amputated of his one leg, was incapable of executing the Will on his own wishes.
39. Regarding point No.4 is concerned whether any suspicious circumstances exist surrounding the execution of the Will is concerned, the testator executed the Will in the presence of 2 attestors and they attested the Will executed by the testator and the testator went to the Sub-Registrar's office. He himself tendered the document for registration and it has been duly 28 O.S.No.5714/2017 registered. When such being the evidence on record, absolutely, there is no evidence to show that Will was executed in suspicious circumstances exist surrounding the execution of the Will.
40. Regarding point No.5 in the above decision is concerned, whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925 r/w Section 68 of the Evidence Act. Under Section 63(c) of the Indian Succession Act, the Will shall be attested 2 or more witnesses. Each of whom has seen the testator signed or affixed his mark to the Will or has seen some other person signed the Will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark or the signature of such other person and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 29
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41. In order to prove the execution of the Will, it is absolutely necessary that the testator must have signed the Will in the presence of attestors or the testator must have personally acknowledged the signatures in the presence of attestors.
42. Under Section 68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as a evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there by an attesting witness alive, and subject to the prcess of the court and capable of giving evidence. Therefore, it is obligatory on the plaintiff to examine atleast one of the attesting witness to the Will. In Page No.4 of the Will, V.Sarala Devi and Mathaiah are shown as attestors. The signature of Sarala Devi is marked as Ex.P.1(a). P.W.2 is none other than Smt.V.Sarala Devi.
43. The examination-in-chief of Smt.V.Sarala Devi 30 O.S.No.5714/2017 discloses that T.Govindarjulu is the father of Smt.Radha.G. Smt.Saraladeavi and Radha.G are the colleagues. Smt.Sarala Devi is one of the attesting witness to the Will dtd:7/6/2012 executed by T.Govindarjulu. She has deposed that 2 days prior to the date of execution of Will, T.Govindarjulu telephoned her and he requested to come to the Ulsoor Sub- Registrar's office on 7/6/2012 afternoon as a witness to his Will. Accordingly, she went to Ulsoor Sub-Registrar's office on 7/6/2012 afternoon at about 2.30 p.m. She saw T.Govindarajulu along with advocate Vijayan Alakkat and Paster Mathaiah. T.Govindarjulu went through the Will prepared and brought by the advocate and signed all the pages of the Will in her presence and in presence of Paster Mathiah and both of them signed the Will as witnesses at the request of T.Govindarajulu. The Will was presented for registration in Sub-Registrar's office. She has further deposed that T.Govindarajulu was in sound disposing state of mind even though he was an 31 O.S.No.5714/2017 ampute and he understood the contents of the Will before executing it. She has further deposed that T.Govindarjulu told them while signing the Will that he was executing the Will to give his share in the family property to his daughter G.Radha.
44. In the cross-examination of P.W.2, she denied the suggestion that she is deposing falsely at the request of the plaintiff. On perusal of the entire cross-examination of P.W.2, nothing is elicited from her mouth as to she is deposing false before the court. Therefore, I find no reason to disbelieve the evidence of P.W.2 as an attestor to the Will. P.W.1 in her cross-examination has stated that her father Govindarjulu was suffering from diabetes and shorten of hearing. But, he was not suffering from poor eye sight or heart problem. She has admitted that in the year 2009, his right leg came to be amputated above the knee because of the injuries sustained by him. Before the death, he was confined to bed. She denied 32 O.S.No.5714/2017 the suggestion that Will is a fabricated document. It is further suggested to P.W.1 that the total measurement of the suit schedule property is 1404 sq.ft and in the Will, the measurement of the property is mentioned as 820 sq.ft and the said measurement is not correct. It is further suggested to P.W.1 that is if really the Will was executed, no such errors were made with regard to the measurement of the property. P.W.1 has admitted that on 12/10/2009 Govindarjulu undergone bypass surgery in St.Philomina Hospital and his leg was amputated on 29/12/2009 at Malya Hospital. He was aged 72 years in the year 2009.
45. On perusal of the Will, the measurement is mentioned as 820 sq.ft. But, East to West measurement is mentioned as 24 ft, North to South on the West mentioned as 56 ft and 61 ft on the East whereas in the plaint, it is mentioned 1404 sq.ft. On perusal of the compromise decree in O.S.No.3126/1980, the plaintiff has acquired the entire schedule property. 33
O.S.No.5714/2017 Moreover, there is no dispute regarding extent and measurement of the plaint schedule property acquired by T.Govindarajulu in a partition decree. Therefore, I find no reasons to disbelieve the execution of the Will by T.Govindarajulu merely for the wrong mentioning of the measurement of the property. There is a preponderance of probability that real measurement of the schedule property will be 820 sq.ft also that will be adjudicated at the final decree proceedings. On perusal of the documentary as well as the oral evidence of the plaintiff, it is clear that T.Govindarjulu had executed a Will in favour of the plaintiff.
46. So far as the contention of the defendants in their written statement that plaintiff eloped when she was under age and without the knowledge of the father and the defendants and married Mr.Raghu within the prohibited degree of relationship and she was ousted from the suit schedule property and hence, she is not entitled for partition is not sustainable under the law of 34 O.S.No.5714/2017 inheritance.
47. D.W.1 is none other than the 1st defendant. In his evidence by way of affidavit reiterated the facts stated in the written statement and he has stated that the Will propounded by the plaintiff is stage-managed, concocted and fabricated by the plaintiff. He has relied upon the 6 documents. Ex.D.1 to 3 are the plaint, compromise petition and copy of the decree in O.S.No.178/1978, New No.3126/1980 as discussed above. Ex.D.4 to 6 are the copy of the complaint, FIR and order sheet in C.C.No.59644/2017 on the file of the Addl.Chief Metropolitan Magistrate, B'lore, wherein, the plaintiff filed a complaint under Section 200 of Cr.P.C. against the defendants for the offences punishable under Section 143, 144, 149, 323, 324, 344, 506(d) r/w Section 34 of IPC. However, filing of criminal case by the plaintiff against the defendants will not dis-entitle the plaintiff from seeking the relief of partition.
48. In his cross-examination, D.W.1 has stated that he 35 O.S.No.5714/2017 has no document to show that the plaintiff's dis- entitlement over the schedule property.
49. D.W.2 is the wife of defendant No.3. In her evidence, she has stated that her father-in-law was suffering from heart disease, diabetes, memory loss and poor eye sight. The plaintiff has never taken care of her father. In her cross-examination, she has stated that her husband is entitled for partition in the present suit. Her name is not referred in the written statement.
50. D.W.3 is Smt.Kalavathi and she is the relative of the plaintiff and defendants. She has deposed that T.Govindarjulu wanted the plaintiff to study well and become a doctor. However, she eloped with one Raghu and she was missing from more than 10 days. T.Govindarajulu has no affection for the plaintiff . She never seen or heard of the plaintiff visiting the schedule property to take care of Govindarajulu during his life time. She was missing at the time of rituals. In her 36 O.S.No.5714/2017 cross-examination, she has stated that she do not know as to whether her name is mentioned in the written statement filed by the defendants.
51. On perusal of the evidence of D.W.2 & 3, whatever the evidence adduced by them is totally absent in the written statement filed by the defendants. Therefore, the evidence of D.W.2 & 3 cannot be considered. Even, the evidence of D.W.1 to 3 does not disclose as to how the plaintiff being a daughter of deceased T.Govindarjulu is not entitled for the relief of partition. Therefore, the plaintiff has proved that T.Govindarjulu had testamentary capacity with person of sound disposing state of mind, knowledge of contents, free from undue influence, fraud, coercion, voluntarily executed a Will in favour of the plaintiff bequeathing his 1/5th share in the schedule property. Therefore, I answer Issue No.2 in the Affirmative.
52.ISSUE No.3 & 4:- These issues are taken up 37 O.S.No.5714/2017 together as they are inter-related to each other.
53. The plaintiff and the defendants are Class-I heirs of deceased T.Govindarajulu. Therefore, the property of the T.Govindarajulu devolves upon the plaintiff and the defendants. Hence, plaintiff and defendants are equally entitled for partition. However, during the life time of T.Govindarajulu, he had executed a Will bequeathing his 1/5th share in the suit schedule property in favour of the plaintiff. Therefore, the plaintiff is entitled for 2/5th share in the suit schedule property. Accordingly, I answer Issue No.3 & 4 in the Affirmative.
54. ISSUE No.5:- For the above reasons and in view of findings on Issue No.1 to 4, I hold that plaintiff is entitled for partition as prayed in the plaint. Hence, I pass the following:-
38
O.S.No.5714/2017 ORDER Suit of the plaintiff is decreed with costs. The plaintiff is entitled for partition and separate possession of her 2/5th share in the suit schedule property by metes and bounds.
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 29th day of July, 2020.) (Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - G.Radha P.W.2 - V.Sarala Devi
b) Defendant's side :
D.W.1 - G.Suresh D.W.2 - Gayathri Sudhakar.S D.W.3 - Smt.Kalavathi 39 O.S.No.5714/2017 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Original Will executed by
Govindarajulu
Signatures of P.W.2
Ex.P.1(a) & (b)
Signatures of Govidnarajulu
Ex.P.1(c) & (d)
Ex.P.2 Death certificate of Govindarajulu
Ex.P.3 Death certificate of Parvathi
Ex.P.4, Certified copy of order sheet,
P4(a) & P4(b) plaint and Lok Adalath award in
O.S.No.25830/2016
Ex.P.5 Khatha extract
Ex.P.6 Khatha certificate
Ex.P.7 Nil Encumbrance certificate from
7/6/2012 to 21/4/2017
Ex.P.8 to Photos (marked in the cross-
Ex.P.12 examination of P.W.1)
(b) Defendants' side : -
Ex.D.1 Certified copy of plaint in
O.S.No.178/1978
Ex.D.2 Certified copy of Compromise
Petition in O.S.No.178/1978
40
O.S.No.5714/2017
Ex.D.3 Certified copy of Decree in
O.S.No.178/1978
Ex.D.4 Certified copy of complaint in
C.C. No.59644/2017
Certified copy of FIR in Crime
Ex.D.5
No.0355/2016
Ex.D6
Certified copy of order sheet in
C.C. No.59644/2017
(Dinesh Hegde)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
GVU/-
41
O.S.No.5714/2017 29/7/2020 Plaintiff - KNP Defendant - CCS For Judgment Judgment pronounced in open court vide separate detailed judgment with the following operative portion:-
ORDER Suit of the plaintiff is decreed with costs. The plaintiff is entitled for partition and separate possession of her 2/5th share in the suit schedule property by metes and bounds.
Draw preliminary decree accordingly.
(Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
42 O.S.No.5714/2017