Bangalore District Court
Sharadamma vs Raghu on 12 December, 2025
KABC010195302014
IN THE COURT OF THE XXIX ADDL.CITY CIVIL &
SESSIONS JUDGE AT BANGALORE (CCH-30)
Present: Srinivasa Gowda.C. B.A.L.L.L.B
XXIX Addl.City Civil & Sessions Judge,
Bengaluru (CCH-30)
Dated this the 12th day of December, 2025.
O.S.No.6977/2014
PLAINTIFF/S: 1. Smt.Sharadamma,
D/o late Munikapinappa,
W/o Munivenkatappa,
Aged about 53 years,
R/at No.232, 2nd cross,
2nd Main, 'B' Block,
Kunthi Grama,
R.T.Nagar post,
Bangalore - 560 032.
2. Smt.Umavathi,
D/o late Munikapinappa,
W/o R,Narayanaswamy,
Aged about 43 years,
R/at D.No.238, 2nd cross,
Sarjapura Main Road,
Dommasandra post,
Bangalore - 562 125.
3. Smt.M.Padmavathi,
W/o late Shantharaju.M.,
Aged about 50 years,
C/o Shaneshwaraswamy Temple,
2 O.S.No.6977/2014
2nd Floor, Near Hebbal Ring Road,
H.A.Farm Post,
Bangalore - 560 024.
(By Sri.NT, Advocate)
-V/s-
DEFENDANT/S: 1. Sri.Raghu,
S/o late Munikapinappa,
Aged about 48 years,
2. Sri.Mahesh Kumar,
S/o M.Raghu,
Aged about 20 years,
3. Smt.K.S.Latha,
W/o M.Raghu,
Aged about 41 years,
4. Sri.R.Dinesh Kumar,
S/o M.Raghu,
Aged about 26 years,
5. Sri.R.Tilak,
S/o M.Raghu,
Aged about 24 years,
All are R/at
C/o Shaneshwaraswamy Temple,
1st Floor, Near Hebbal Ring Road,
H.A.Farm post,
Bangalore - 560 024.
(D1 to 3 By Sri.MNB, D4 By
Sri.PG, D5 By Sri.KBN,
Advocates)
3 O.S.No.6977/2014
Date of institution of the :- 10.09.2014
suit
Nature of the suit (suit on :- Partition
pronote. Suit for
declaration and
possession suit for
injunction, etc.)
Date of the :- 22.07.2015
commencement of
recording of the evidence.
Date on which the :- 12.12.2025
judgment was pronounced
Total duration :- Year/s Month/s Day/s
11 03 02
(Srinivasa Gowda.C)
XXIX Addl.City Civil and Sessions Judge,
Bengaluru.
JUDGMENT
The plaintiffs have filed the present suit against the defendants seeking relief of partition and separate possession with respect to their 1/4 share in the suit 'A' to 'C' schedule properties. The plaintiffs have also sought for the relief of declaration to declare that the unregistered 'Will' dated 4 O.S.No.6977/2014 10.02.2014 executed with respect to suit 'A' and 'B' schedule properties is not binding on them. The plaintiffs have also sought for the relief of permanent injunction restraining the defendants from alienating the suit 'A' and 'B' schedule properties and for mesne profits.
2. The Plaintiff submits that Sri.C.Munikapinappa had four children, i.e., plaintiff No.1, 2, defendant No.1 and Kantharaju.M, who is husband of plaintiff No.3. The suit 'A' and 'B' schedule properties are the self acquired properties of Sri.C.Munikapinappa. He has acquired the same under the registered sale deeds dated 05.04.1968 and 03.03.1994. The revenue records were mutated in his name. From the date of purchase of the said properties, he was in lawful possession and enjoyment of the same. Sri.C.Munikapinappa had constructed Sri Shanimahathma Swamy Temple at Hebbal, Bangalore. During his life time, he was managing the affairs of the temple and performing the rituals. After the death of Sri.C.Munikapinappa, the defendants have been performing 5 O.S.No.6977/2014 day to day rituals of the temple. Smt.Maramma who is the wife of Sri.C.Munikapinappa had golden ornaments, i.e., two gold chains, one pair of studs and ear-rings, six gold rings, one kasina sara, three gold chains, two gold and silver Rudhrakshi jewels. Sri.C.Munikapinappa had Omni Bus, Mahindra Xylo, CRDE-vehicle bearing No. KA 04 MK 7752, and he had also purchased motorcycle i.e., TVS Appache RTR bearing No. KA 04 HQ 0491 in the name of defendant No.2, the movable properties are described as 'C' schedule property. Smt.Maramma and the husband of plaintiff No.3 were predeceased to Sri.C.Munikapinappa. Therefore Sri.C.Munikapinappa was taking care of the welfare of plaintiff No.3. Sri.C.Munikapinappa died on 07.03.2014. leaving behind the plaintiffs and defendant No.1 as his legal heirs. After the death of Sri.C.Munikapinappa, they have jointly inherited the suit 'A' to 'C' schedule properties. They have been in joint possession and enjoyment of the suit 'A' and 'B' schedule properties. The defendants have colluded together and created fraudulent unregistered 'Will' dated 6 O.S.No.6977/2014 10.02.2014. On the strength of the said 'Will', the defendants have been illegally claiming exclusive right over the suit 'A' and 'B' schedule properties. As on the date of execution of the alleged 'Will', Sri.C.Munikapinappa was aged about 90 years. He was suffering from ill-health and he was not in good state of mind. Taking advantage of the same, the defendants have got created and fabricated the 'Will' dated 10.02.2014. Therefore the defendants will not derive any right or title over suit 'A' and 'B' schedule properties. The plaintiffs being class I legal heirs of deceased Sri.C.Munikapinappa, they are entitled for legitimate share in the suit schedule properties. Accordingly, the plaintiffs have prayed to decree the suit with costs.
3. The defendant No.1 to 3 have filed the written statement. They have admitted that the plaintiff No.1 and 2 are the daughters of Sri.C.Munikapinappa. But they have denied that the plaintiff No.3 is the wife of deceased Kantharaju.M. It is further stated that Sri.C.Munikapinappa 7 O.S.No.6977/2014 was the absolute owner and in possession of property bearing No.18, katha No.473/18, measuring east to west 20 feet, north to south 30 feet, situated at Hebbal gramatana, Kasaba hobli, Bangalore North Taluk. He was also absolute owner of the property bearing Municipal No.33, old No.33/A, measuring east to west 20 feet, north to south 30 feet, situated at Hebbal gramatana, Kasaba hobli, Bangalore North Taluk. During 2004, the plaintiffs had demanded for partition. Therefore Sri.C.Munikapinappa has alienated the aforesaid properties under two registered sale deeds dated 29.05.2004. The sale consideration derived from the said properties were divided among the plaintiffs. Sri.C.Munikapinappa has not paid any amount out of the said consideration to defendant No.1. However Sri.C.Munikapinappa has assured the defendants that he will execute the 'Will' with respect to suit 'A' and 'B' schedule properties. As assured by Sri.C.Munikapinappa, he has executed unregistered 'Will' and bequeathed the suit 'A' schedule property in favour of defendant No.2, 4 and 5. He 8 O.S.No.6977/2014 has bequeathed the suit 'B' schedule property in favour of defendant No.3. Sri.C.Munikapinappa has not executed the said 'Will' under coercion or undue influence. As on the date of execution of the said 'Will', he was in good state of mind, he was not in a position to affix his signature, therefore he has affixed his thumb impression to the 'Will'. The golden ornaments described in the 'C' schedule property are the exclusive property of defendant No.3, the same were gifted by the parents of defendant No.3. Except defendant No.3, the other family members have no right over the golden ornaments. As Sri.C.Munikapinappa has executed the 'Will' in favour of defendant No.2 to 5 with respect to suit 'A' and 'B' schedule properties, the plaintiffs are not entitled for share in the suit schedule properties. Therefore, the suit filed by the plaintiff is liable to be dismissed with costs.
4. The defendant No.4 and 5 have filed their respective written statement. The defendant No.4 and 5 have contended that suit 'A' and 'B' schedule properties were self acquired 9 O.S.No.6977/2014 properties of Sri.C.Munikapinappa, he has acquired the said properties during 1968 and 1994. Sri.C.Munikapinappa had the properties situated at Anandgiri layout, the same were sold for the benefit of the plaintiff and the sale consideration derived from the said properties were given to the plaintiffs. On 10.02.2014 Sri.C.Munikapinappa executed an unregistered 'Will' and bequeathed the suit 'A' and 'B' schedule properties in favour of defendant No.2 to 5. As on the date of execution of the 'Will', the defendant No.4 and 5 were minors, they were represented by defendant No.2 as a guardian. On 07.03.2014 Sri.C.Munikapinappa was passed away. After his death, the defendant No.4 and 5 have become the absolute owners with respect to their undivided share in the suit 'A' schedule property. As the item No.1 and 2 are the self acquired properties of Sri.C.Munikapinappa, he has got absolute right to execute the 'Will'. The plaintiffs knew that the 'Will' was executed in favour of defendant No.4 and 5. Despite they were not made as parties to the suit. Recently they were made as parties in the present suit. By virtue of 10 O.S.No.6977/2014 the 'Will' dated 10.02.2014, the defendant No.4 and 5 have been in possession and enjoyment of their undivided share in the suit 'A' schedule property. The plaintiffs have no manner of right or interest over the suit 'A' schedule property. Therefore the suit filed by the plaintiffs is liable to be dismissed with costs.
5. In the light of the aforesaid pleadings of the parties, the following issues have been framed:
ISSUES (1) Whether the plaintiffs prove that the suit schedule properties are the joint family properties of plaintiffs and defendants and they are in joint possession of it ?
(2) Whether the plaintiffs prove that they have got ¼ share in the suit schedule properties ?
(3) Whether the plaintiffs prove that the unregistered 'Will' dated 10.02.2014 in 11 O.S.No.6977/2014 respect to 'A' and 'B' schedule properties is null and void and not binding on plaintiffs ?
(4) Whether the plaintiffs are entitled for the relief of partition and separate possession as prayed in the plaint ?
(5) Whether the plaintiffs are entitled for the relief of declaration in respect to unregistered 'Will' as prayed in the plaint?
(6) Whether the plaintiffs are entitled for the relief of mesne profit as prayed in the plaint ?
(7) Whether the plaintiffs are entitled for the relief of permanent injunction as prayed in the plaint ?
(8) What order or decree ?
Additional Issues:
(1) Whether the defendants prove that Sri.C.Munikapinappa bequeathed suit 'A' and 'B' schedule properties in favour of 12 O.S.No.6977/2014 defendants along with R.Dinesh Kumar and R.Tilak under the 'Will' dated 10.02.2014 ?
(2) Whether the suit is bad for non-
joinder of necessary parties ?
(3) Whether the defendant No.4 and 5 prove that item No.1 and 2 of the suit schedule properties are self acquired properties of Sri.C.Munikapinappa?
6. The plaintiff No.1 got examined herself as PW1 and got marked Ex.P1 to Ex.P10. The defendant No.2 examined as DW1 and he got marked Ex.D1 to Ex.D5. The witnesses are examined as DW2 and DW3. The defendant No.4 is examined as DW4 and he got marked Ex.D6 and Ex.D7.
7. Heard the learned counsel for plaintiffs and defendants.
8. My answer to the above issues are as under:
Issue No.1: In the Affirmative
Issue No.2: In the Affirmative
13 O.S.No.6977/2014
Issue No.3: Does not arise
Issue No.4: In the Affirmative
Issue No.5: Does not arise
Issue No.6: In the Affirmative
Issue No.7: In the Affirmative
Addl.Issue No.1: In the Negative
Addl.Issue No.2: In the Negative
Addl.Issue No.3: In the Affirmative
Issue No.9: As per final order
for the following:
REASONS
9. Issue No.1, Additional Issue No.1 and Additional Issue No.3: These issues are inter-connected with each other, therefore they have been taken up together for common discussion in order to avoid repetition of facts.
10. PW1 has deposed that herself, plaintiff No.2, defendant No.1 and Kantharaju.M. who is the husband of plaintiff No.3 are the children of Sri.C.Munikapinappa and Smt.Maramma. Her father has purchased the suit 'A' schedule property 14 O.S.No.6977/2014 under the registered sale deed dated 05.04.1968 and the suit 'B' schedule property under the registered sale deed dated 03.03.1994. On the strength of the said registered sale deeds, the revenue records were mutated in his name and he was paying property tax. From the date of purchase of suit 'A' and 'B' schedule properties, he was in possession and enjoyment of the same. On 07.03.2014 he died intestate leaving behind herself, plaintiff No.2, 3 and defendant No.1. Prior to the death of her father, her mother and brother Kantharaju.M. were passed away. Herself, plaintiff No.2, 3 and defendant No.1 have succeeded to suit 'A' and 'B' schedule properties. They have been in joint possession and enjoyment of the same. Her father never executed the 'Will' with respect to suit 'A' and 'B' schedule properties. The defendants have colluded together and got created the unregistered 'Will' dated 10.02.2014 and they have been illegally claiming right over the same. In terms of the said 'Will' the defendants will not derive any right over the suit 'A' and 'B' schedule properties. On the other hand, DW4 has 15 O.S.No.6977/2014 deposed that the suit 'A' and 'B' schedule properties are the self acquired properties of Sri.C.Munikapinappa. He has acquired the said properties through registered sale deeds during 1963 and 1994. Sri.C.Munikapinappa had properties at Ananda Nagar Extension. The properties situated at Anandagiri layout were sold and sale proceeds were given to the share of plaintiffs. Sri.C.Munikapinappa has not given the amount derived from the aforesaid properties situated at Anandagiri layout. Therefore he has executed the 'Will' dated 10.02.2014 and bequeathed the suit 'A' schedule property in favour of himself, defendant No.2 and 5, the suit 'B' schedule property was bequeathed in favour of defendant No.3. His grand father died on 07.03.2014. After his death, they have become the absolute owners of the suit 'A' and 'B' schedule properties in terms of the 'Will' dated 10.02.2014. They have been in possession and enjoyment of the suit 'A' and 'B' schedule properties. As Sri.C.Munikapinappa executed the 'Will' dated 10.02.2014, the plaintiffs have no manner of right or interest over the suit 'A' and 'B' schedule properties . 16 O.S.No.6977/2014
11. In the case on hand, it is not in dispute that the plaintiffs are the daughters of Sri.C.Munikapinappa. As per the version of plaintiffs, the plaintiff No.3 is the widow of deceased Kantharaju.M., who is the son of Sri.C.Munikapinappa. In the written statement, the defendant No.1 to 3 have denied that the plaintiff No.3 is the wife of Kantharaju.M. In order to establish that the plaintiff No.3 is the wife of Kantharaju.M., PW1 has produced the genealogical tree, the same is marked as Ex.P1, it indicates that plaintiff No.3 is the wife of Kantharaju.M. In the cross examination, DW1 has admitted that plaintiff No.3 is the wife of Kantharaju.M. After the death of Kantharaju.M. Sri.C.Munikapinappa was taking care of plaintiff No.3. On appreciation of the genealogical tree at Ex.P1 and admission made by DW1 in the cross examination, it is very clear that plaintiff No.3 is the wife of Kantharaju.M.
12. It is the contention of the plaintiffs that Sri.C.Munikapinappa has acquired the suit 'A' schedule 17 O.S.No.6977/2014 property under the registered sale deed dated 15.04.1968 and suit 'B' schedule property under the registered sale deed dated 03.03.1994. In that regard PW1 has produced the Certified copies of the aforesaid registered sale deeds, the same are marked as Ex.P7 and Ex.P8. It is not in dispute that Sri.C.Munikapinappa has purchased the suit 'A' and 'B' schedule properties as per Ex.P7 and Ex.P8. In the written statement the defendant No.4 and 5 have admitted that suit 'A' and 'B' schedule properties are the self acquired properties of Sri.C.Munikapinappa. Therefore it is very clear that the suit 'A' and 'B' schedule properties are the self acquired properties of Sri.C.Munikapinappa.
13. The defendants have contended that on 10.02.2014 Sri.C.Munikapinappa has executed unregistered 'Will' and bequeathed the suit 'A' schedule property in favour of defendant No.2, 4 and 5, the 'B' schedule property in favour of defendant No.3. After the death of Sri.C.Munikapinappa, they have become the absolute owners of suit 'A' and 'B' 18 O.S.No.6977/2014 schedule properties. DW1 has produced the original 'Will' dated 10.02.2014, the same is marked as Ex.D5. The recitals of Ex.D5 corroborates with the oral evidence of DW1. But the plaintiffs have disputed the execution of the 'Will' dated 10.02.2014 by Sri.C.Munikapinappa in favour of defendant No.2 to 5. As the plaintiffs disputed the execution of the 'Will' dated 10.02.2014, the burden lies on the propounder of the 'Will' to prove its execution as mandated under law. At this juncture it is just and proper to refer the following decisions:
AIR 1959 SC 443 between Venkatachala Iyengar Vs. Thimmajamma, wherein the Hon'ble Apex Court has held that -
"There is a one important feature which distinguishes wills from other documents. Unlike other documents, the Will speaks from the death of testator, and so, when it is propounded or produce before the court, the testator who has already departed the world cannot say 19 O.S.No.6977/2014 whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the documents propounded is proved to be the last Will and testament of the departed testator, even so in dealing with the proof of Wills the court will start on the same enquiry as on the case of proof of 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 sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the documents of his own free will".
In view of the ratio laid down in the above decision, it is very clear that the propounder of the Will has to be called upon to show by satisfactory evidence that the Will was 20 O.S.No.6977/2014 signed by the testator and he was in sound and disposing state of mind, and he has understood the nature and effect of the disposition. The testator executed the Will out of his own free will.
ILR 2008 KAR 2115 between J.T.Soorappa and another Vs. Sri.Sachidananda Saraswathi Swamiji Public Charitable Trust and others, wherein the Hon'ble High Court of Karnataka has held that-
"The court has to tread a careful path in the enquiry to be conducted with regard to Will. The said path consists of five steps "PANCHAPADI". 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 ?21 O.S.No.6977/2014
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?
5) Whether Will has been executed in accordance with Section 63 of Indian Succession Act, 1925 R/w section 68 of Evidence Act ?"
(2021) 11 SCC 209 between Kavitha Kanvar Vs. Pamela Mehta and others wherein Hon'ble Apex Court has held that -
"The presence of suspicions circumstances makes the onus heavier on the propounder and therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.22 O.S.No.6977/2014
The test of the specification of judicial conscience consent to operate when a document propounder as the Will of the testator is surrounded by suspicious circumstances. While applying such test, the court would address itself to the solemn questions as whether the testator has signed the Will while being away and its contents and after understanding the nature and affect of the dispossession in the Will.
In the ultimate analysis where execution of the Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the court and the party sets up the Will as to offer the convincing explanation of the suspicious circumstances surrounding the Will."
In view of the ratio laid down in the above decisions, it is very clear that the propounder of the will has to prove that as on the date of execution of the will the testator sound state of 23 O.S.No.6977/2014 mind, the will was attested by the two witnesses. The natural heirs have not been disinherited the property. The propounder of the will has to eliminate the suspicious circumstances surrounding by the will by adducing the cogent or satisfactory evidence.
14. On perusal of Ex.D5, it discloses that one Sri.Gopalappa and Sri.Srinivas Shasthry were signed as attesting witnesses. In the cross examination, PW1 has admitted that that Sri.Gopalappa is the elder uncle of defendant No.2, Sri.Srinivas Shasthry was one of the priest in Sri Shanimathma Temple, her father was acquainted with Sri.Gopalappa and Sri.Srinivas Shasthry. The learned counsel for defendant No.4 and 5 argued that Sri.Gopalappa and Sri.Srinivas Shasthry were signed as attesting witnesses. Sri.Gopalappa and Sri.Srinivas Shasthry are no more. As the attesting witnesses were dead, the burden is on the propounder of the 'Will' to prove the execution of the 'Will' in terms of Section 69 and 70 of Evidence Act. In support of his 24 O.S.No.6977/2014 contention he has relied upon the decision reported in (2021) 16 SCC 543 V.Kalyanaswamy (dead) by legal representatives and another Vs.L.Bakthaatsalam (dead) by legal representatives and others, wherein the Hon'ble Apex Court has held that;
"In short in a case covered under section 69 of the evidence, what is to be proved as far as the attesting witnesses is concerned is, that the attestation of one of the attesting witness is in his handwriting. Language of the section is clear and unambiguous. Section 68 of the Evidence Act, is interpreted by this Court contemplates attestation of both attesting witnesses to be proved but that is not the requirement in section 69 of the Evidence Act."
In view of the ratio laid down in the above decision, it is very clear that in terms of Section 69 of the Evidence Act, it can be proved that the signature of one of the attesting witness is in his handwriting. As on the date the 'Will' 25 O.S.No.6977/2014 admitted in evidence, the attesting witnesses of the 'Will' , i.e., Sri.Gopalappa and Sri.Srinivas Shasthry were no more. Therefore the defendant No.4 and 5 got examined Smt.Sarvamangala K., D/o late Sri.Gopalappa. She has stated that she is the permanent resident of Bangalore. She is acquinted with the signature of her father, she can identify the signature of her father. Her father died on 10.07.2014. She has identified the signature of her father at Ex.D5, the same is marked as Ex.D5(a). In the cross examination, DW2 has stated that she has been discharging her duties as a Women Police Constable. She has not produced the document to show that she is the daughter of deceased Sri.Gopalappa. She did not know when Sri.C.Munikapinappa has executed the 'Will' and her father was signed as attesting witness. She has denied that Sri.C.Munikapinappa and her father have colluded together and got created the 'Will' dated 10.02.2014. It is pertinent to note here that though DW2 was subjected to cross examination, nothing has been elicited to disbelieve her version. DW2 being the daughter of 26 O.S.No.6977/2014 Sri.Gopalappa she has identified the signature of her father, which is in his handwriting. Therefore it is very clear that Sri.Gopalappa signed as one of the attesting witnesses to Ex.D5.
15. The defendants got examined one Sri.M.G.Suresh Holla, who is a practicing advocate at Bangalore, as DW3. He has deposed that from the past 17 years he is practicing as an advocate at Bangalore. Sri.Gopalappa was his client. During the last week of January, Sri.Gopalappa and Sri.C.Munikapinappa came to his office.
Sri.C.Munikapinappa has handed over the copies of the documents and requested him to prepare the 'Will'. As per the instructions given by Sri.C.Munikapinappa, he has prepared the 'Will'. On 10.12.2014 Sri.C.Munikapinappa and Sri.Gopalappa came to his office and took the 'Will' stating that they will get registered the document on their own. Therefore he has signed as a Scribe to the 'Will' dated 10.02.2014. Sri.C.Munikapinappa or the attesting witnesses 27 O.S.No.6977/2014 have not signed the 'Will' in his presence. He did not know that prior to 10.02.2014, Sri.C.Munikapinappa was taking treatment in M.S.Ramaiah Hospital as in-patient. On appreciation of evidence of DW3, it establishes that during the last week of January 2014, Sri.Gopalappa and Sri.C.Munikapinappa have visited the office of DW3, they have handed over the documents of suit 'A' and 'B' schedule properties and they have requested to prepare the 'Will'. Following that he has prepared the 'Will'. On 10.02.2014 at 9.30 a.m. Sri.Gopalappa and Sri.C.Munikapinappa personally came to his office and collected the 'Will'. At this juncture, it is just and proper to extract the relevant portion of the cross examination of DW1. He has stated that;
"¢B10.2.2014gÀAzÀÄ £À£Àß vÁvÀ JA.J¸ï.gÁªÀÄAiÀÄå D¸ÀàvÉæAiÀÄ°è EzÀÝgÀÄ. CAzÀÄ ®ÉÆà ¸ÀÄUÀgï DzÀ PÁgÀt ¤±ÀåQÛAiÀiÁV 10-11 ¢£À D¸ÀàvÉæAiÀÄ°è EzÀÝgÀÄ. ¢B20.02.2014gÀAzÀÄ CªÀgÀ£ÀÄß D¸ÀàvÉæ¬ÄAzÀ r¸ïZÁeïð ªÀiÁr¹PÉÆAqɪÀÅ. DUÀ ªÀÉÆzÀ®Ä £À£Àß vÁvÀ £ÁgïªÀÄ¯ï ªÁqïð£À°èzÀÝgÀÄ §½PÀ L¹AiÀÄÄUÉ ¹¥ïÖ ªÀiÁrgÀÄvÁÛgÉ."28 O.S.No.6977/2014
On appreciation of this part of cross examination of DW1, it shows that on 10.02.2014 Sri.C.Munikapinappa had low sugar and he fell uneasiness, he was admitted to M.S.Ramaiah Hospital for treatment. At the inception, he was in normal ward, later he was shifted to ICU. He has taken treatment for a period of 10 to 11 days in M.S.Ramaiah Hospital. He was discharged on 20.02.2014. When Sri.C.Munikapinappa was admitted to M.S.Ramaiah Hospital on 10.12.2014, no prudent man will believe that Sri.C.Munikapinappa and Sri.Gopalappa have visited the office of DW3 to receive the 'Will'. As admitted by DW 3, Sri.C.Munikapinappa and attesting witnesses have not signed the 'Will' in his presence, i.e., on 10.02.2014. In the cross examination DW1 has stated that from 10.12.2014 to 20.12.2014 Sri.C.Munikapinappa has taken treatment as in- patient at M.S.Ramaiah Hospital, Bangalore. If such being the case, when Sri.C.Munikapinappa has executed the 'Will' and where the attesting witnesses have signed the 'Will'. It is not the case of the defendants that after the discharge of 29 O.S.No.6977/2014 Sri.C.Munikapinappa from M.S.Ramaiah Hospital, Sri.C.Munikapinappa has executed the 'Will' and attesting witnesses were signed. As on the date of admission of Sri.C.Munikapinappa to M.S.Ramaiah Hospital, he was 90 years. DW1 has produced the Certificate dated 21.02.2014 issued by M.S.Ramaiah Hospital, the same is marked as Ex.D1, wherein it is stated that Sri.C.Munikapinappa was having tremors of right hand and he is unable to sign . It shows that as on 21.02.2014, Sri.C.Munikapinappa was suffering from tremors and he could not able to sign the document. Even if it is assumed that he was suffering from tremors, the defendants would have been obtained the certificate from the doctor that though he was suffering from tremors of right hand, his mental status is in good condition and he was in a position to understand the things properly. In that regard the defendants have not produced the medical certificate. On 20.02.2014 Sri.C.Munikapinappa was discharged from M.S.Ramaiah Hospital, he died on 07.03.2014. It shows that within a span of 17 days from the 30 O.S.No.6977/2014 date of discharge from the hospital, Sri.C.Munikapinappa was passed away. This fact clearly manifests that as C.Munikapinappa was 90 years old and he was having serious illness. Due to the said ill-health, he passed away. The defendants have stated that after the death of Sri.C.Munikapinappa, Sri.Gopalappa has informed about the execution of the 'Will' and he has handed over the original 'Will' to the defendants. It is pertinent to note here that the said Sri.Gopalappa is none other than the elder uncle of defendant No.2. The evidence given by DW3 establishes that Sri.Gopalappa has took Sri.C.Munikapinappa to the office of the advocate and they gave instructions to the advocate to prepare the 'Will'. In order to collect the said 'Will', Sri.Gopalappa and Sri.C.Munikapinappa had been to the office of advocate. These facts establishes that Sri.Gopalappa has taken prominent role in getting prepared the 'Will' who is very close relative of defendant No.2. That apart as on 10.02.2014, Sri.C.Munikapinappa was admitted to the M.S.Ramaiah Hospital and he has taken treatment for a 31 O.S.No.6977/2014 period of 10 days. When Sri.C.Munikapinappa admitted to the Hospital on 10.02.2014, it is hard to believe that he visited the office of DW3 to collect the 'Will' dated 10.02.2014. All these circumstances put together, it clearly establishes that the execution of the 'Will' dated 10.02.2014 is hit by suspicious circumstances. As the 'Will' is hit by suspicious circumstances, the burden lies on the propounder of the 'Will' to eliminate the same. In that regard, the defendants have not placed any material evidence. Moreover the defendants have not established the fact that as on the date of execution of the 'Will' dated 10.02.2014, Sri.C.Munikapinappa was healthy and he was in good state of mind. In the cross examination DW3 has admitted that on 10.02.2014 Sri.C.Munikapinappa was admitted to M.S.Ramaiah Hospital. As Sri.C.Munikapinappa was admitted to M.S.Ramaiah Hospital, at no stretch of imagination, it can be believable that on 10.02.2014 Sri.C.Munikapinappa has executed the 'Will' and bequeathed the suit 'A' and 'B' schedule properties in favour of defendant No.2 to 4.
32 O.S.No.6977/2014
16. Learned counsel for the defendants argued that Munikappinappa had properties bearing No.18 Katha No.47318 Hebbala Gramatana, Kasaba Hobli, Bangalore North Taluk measuring East to West 20 feet and North to South 30 feet and the property bearing No.33 Katha No.33/A situated Anandagiri Layout, Hebbala Gramatana, Kasaba Hobli, Bangalore North Taluk measuring East to West 20 feet and North to South 30 feet. During 2004, the Plaintiffs have demanded for partition in the family properties. Therefore Munikappinappa has sold the aforesaid properties under the registered sale deeds dated 29.05.2004. Out of the sale consideration derived from the said properties, the same was given to the share of the Plaintiffs. As the Plaintiffs have already taken shares by way of cash, they are not entitled for share in the suit schedule properties. In support of his contention, he has relied upon the certified copies of the registered sale deeds dated 29.05.2004, the same are marked as Ex.D3 and Ex.D4. In terms of Ex.D3 and D4, Munikappinappa has sold the aforesaid properties for 33 O.S.No.6977/2014 valuable consideration of Rs.1,50,000 and Rs.3,00,000. It shows that the property bearing No.18 and 33 were sold for valuable consideration of Rs.4,50,000. For having paid the said amount to the Plaintiffs by Munikappinappa, the defendants have not produced any material documents. In the cross examination the P.W.1 has denied that Munikappinappa has sold the property situated at Anandagiri Layout, out of the sale consideration derived from the said properties were paid to the Plaintiffs. It shows that there are no material documents for having paid the amount towards the share of Plaintiffs. Even if it is assumed during 2004, the Plaintiffs have demanded for their share in the family properties, Sri. Munikappinappa would have been given the properties to the Plaintiffs instead of paying the sale consideration. In that regard, the defendants have not offered any explanation. Once again this Court is reiterating that the defendants have not produced any clinching evidence to establish the fact that during 2004 itself the Plaintiffs have received the amount towards their share. In such 34 O.S.No.6977/2014 circumstances, the adverse inference has to be drawn against the defendants that Munikappinappa has not paid the sale consideration derived from the aforesaid properties to the Plaintiffs, therefore the defendants have not produced the documents. In such circumstances, the contention of defendants that the Plaintiffs have received the amount towards their share does not holds the water.
17. According to plaintiffs, Sri.C.Munikapinappa has earned golden ornaments, i.e., two gold chains, one pair of ear-rings and studs, six gold rings, one long chain, three big gold chains, and two gold and silver Rudrakshi chains. The defendants have raised the defence that the said ornaments were given by the parents of defendant No.3. It is her exclusive property. The plaintiffs have not produced the documents for having purchased the aforesaid golden ornaments by Sri.C.Munikapinappa. Per contra the defendants have not produced the clinching evidence to establish that the said golden ornaments were gifted by the 35 O.S.No.6977/2014 parents of defendant No.3. However DW1 in his cross examination, he has stated that;
"£À£Àß ¥ÀæªÀiÁt ¥ÀvÀæzÀ ¥ÁågÁ-8gÀ°è ºÉýgÀĪÀ ¹ µÉqÀÆå¯ï ¸ÀévÀÄÛUÀ¼ÀÄ £À£Àß vÁ¬ÄAiÀÄ ¸ÀévÀÄÛUÀ¼ÀÄ JAzÀÄ ºÉý¢ÝÃgÉÆà JAzÀgÉ CzÀgÀ°è £À£Àß vÁvÀ PÉÆnÖgÀĪÀ MAzÀÄ a£ÀßzÀ ¸ÀgÀ ªÀÄvÀÄÛ MAzÀÄ §AUÁgÀzÀ gÀÄzÁæQë ªÀiÁvÀæ £ÀªÀÄUÉ ¸ÉÃjgÀÄvÀÛzÉ. ¸ÁQëUÉ ¹ µÉqÀÆå¯ï£À°è ºÉýgÀĪÀ G½zÀ JgÀqÀÄ a£ÀßzÀ ¸ÀgÀUÀ¼ÀÄ, ªÁ¯É dĪÀÄÄQ, DgÀÄ a£ÀßzÀ GAUÀÄgÀUÀ¼ÀÄ, MAzÀÄ PÁ¹£À ¸ÀgÀ, ªÀÄÆgÀÄ zÉÆqÀØ a£ÀßzÀ ¸ÀgÀ, MAzÀÄ ¨É½îAÀiÀÄ gÀÄzÁæQë ¸ÀgÀ, JgÀqÀÄ a£ÀßzÀ gÀÄzÁæQë EªÀÅUÀ¼À°è £À£Àß vÁ¬ÄAiÀÄ §½ EgÀĪÀÅzÀÄ MAzÀÄ a£ÀßzÀ gÀÄzÁæQë ªÀÄvÀÄÛ MAzÀÄ a£ÀßzÀ ¸ÀgÀ ªÀiÁvÀæ £À£Àß vÁvÀ PÉÆnÖzÁÝgÉ. £À£Àß vÁvÀ PÉÆnÖgÀĪÀ a£ÀßzÀ ¸ÀgÀzÀ ºÉÆgÀvÀÄ ªÀÄvÉÛ JgÀqÀÄ a£ÀßzÀ ¸ÀgÀUÀ¼ÀÄ £À£Àß vÁ¬ÄAiÀÄ §½ EzÉ. N¯É ªÀiÁvÀæ £À£Àß vÁ¬ÄAiÀÄ §½ EzÉ. PÁ¹£À ¸ÀgÀ £À£Àß vÁ¬ÄAiÀÄ §½ E®è. PÁ¹£À ¸ÀgÀ".
It shows that DW1 has admitted that Sri.C.Munikapinappa has given one golden chain and Rudrakshi chain to his mother. His father has got purchased one Kasina sara, ear- rings, his mother is having the golden bangles and golden chain. DW1 has not stated in his cross examination that the aforesaid golden ornaments were gifted by the parents of 36 O.S.No.6977/2014 defendant No.3. As such the contention of the defendants that the golden ornaments described in the 'C' schedule property were gifted by the parents of defendant No.3 cannot be acceptable. The defendants have not produced any material documents to show that the defendant No.1 had independent source of income. In the cross examination, DW1 has stated that after the death of Sri.C.Munikapinappa they have been managing the affairs of Shanimahathma Temple. That apart they were also receiving the rents derived from suit 'A' and 'B' schedule properties. Out of the said income derived from the said properties, the defendant No.1 got purchased Kasina sara, i.e., golden long chain and ear rings and studs to his wife. The defendant No.3 is also having two bangles and long chain. The said ornaments were also purchased out of the joint family income. Therefore the golden ornaments described in the 'C' schedule properties are also the joint family properties.
37 O.S.No.6977/2014
18. It is the contention of the plaintiffs that during the life time of Sri.C.Munikapinappa, he has purchased the Omni bus Mahindra Xylo vehicle bearing No. KA 04 MK 7752 and TVS Apache registration bearing No. KA 04 HQ 0491 which is in the name of defendant No.2. In order to establish that Sri.C.Munikapinappa has purchased the Mahindra Xylo vehicle, PW1 has produced the Certified copy of the registration certificate, the same is marked as Ex.P10, i.e., 'B' register extract of the vehicle bearing No. KA 04 MK 7752 which is standing in the name of Sri.C.Munikapinappa. The 'B' register extract of the vehicle bearing No. KA 04 HQ 0491 is standing in the name of defendant No.4. In the cross examination DW1 has stated that;
"£À£Àß vÁvÀ ªÀÄ»ÃAzÀæ eÉʯÉÆà PÉJ-04-JAPÉ--7752£ÀÄß 2012 dÆ£ï 1gÀAzÀÄ Rjâ¹zÀÝgÀÄ. EzÀÄ FUÀ £ÀªÀÄä §½ EzÉ. FUÀ®Æ EzÀgÀ Dgï¹ ¥ÀŸÀÛPÀ £À£Àß vÁvÀ£À ºÉ¸Àj£À°è EzÉ. 2013 DUÀ¸ïÖ£À°è n«J¸ï C¥ÀaÑ DgïnDgï PÉJ-04-ºÉZïPÀÆå-0491 ¨ÉÊPÀ£ÀÄß £À£Àß vÁvÀ £À£ÀUÉ Rjâ¹ PÉÆnÖzÁÝgÉ."38 O.S.No.6977/2014
It shows that DW1 has admitted the Mahindra Xylo vehicle is standing in the name of his grand father and two wheeler was purchased by his grand father in his name, as such, the said vehicles are also the joint family properties. On appreciation of these facts it clearly goes to show that the suit 'A' to 'C' schedule properties are the self acquired properties of Sri.C.Munikapinappa. It is alleged that on 10.02.2014 Sri.C.Munikapinappa has executed the 'Will' in favour of defendant No.2 to 4 with respect to suit 'A' and 'B' schedule properties. Indeed the defendants have failed to prove the execution of the 'Will', as such, Sri.C.Munikapinappa died intestate leaving behind the plaintiffs and defendant No.1 as his legal heirs. After the death of Sri.C.Munikapinappa, the plaintiffs and defendant No.1 have inherited the suit 'A' and 'B' schedule properties and they have been in joint possession and enjoyment of the same. Considering all these aspects, this Court is of the opinion that the plaintiffs have proved that the suit schedule properties are the joint family properties and they have been 39 O.S.No.6977/2014 in joint possession and enjoyment of the same. The defendants have failed to prove that Sri.C.Munikapinappa has bequeathed the suit 'A' and 'B' schedule properties in favour of defendant No.2 to 5 through the 'Will' dated 10.02.2014. However defendant No.4 and 5 have proved that the suit 'A' and 'B' schedule properties are the self acquired properties of Sri.C.Munikapinappa. Accordingly I hold Issue No.1 and Additional No.3 in the Affirmative, and Additional Issue No.1 in the Negative.
19. Additional Issue No.2: The defendants have contended that Sri.C.Munikapinappa executed the 'Will' on 10.02.2014 with respect to suit 'A' and 'B' schedule properties. In terms of the said 'Will', Sri.Dinesh Kumar and Sri.Thilak are also beneficiaries, but they have not made as parties to the present suit. Therefore the suit is bad for non-joinder of necessary parties. It is pertinent to note here that at the inception, plaintiffs have filed the suit against defendant No.1 to 3, subsequently Sri.Dinesh Kumar and Sri.Thilak were 40 O.S.No.6977/2014 impleaded as defendant No.4 and 5. Thus, the suit is not bad for non-joinder of necessary parties. Accordingly I hold Additional Issue No.2 in the Negative.
20. Issue No.2 to 7: The plaintiffs have filed the present suit seeking relief of partition and separate possession of ¼ share in the suit 'A' to 'C' schedule properties. The plaintiffs have also sought for the relief of declaration that the unregistered 'Will' dated 10.02.2014 is not binding on them. The plaintiffs have also sought for the relief of permanent injunction and mesne profits with respect to suit 'A' and 'B' schedule properties. In view of the discussion made on issue No.1, additional issue No.1 and 3, the plaintiffs have established that suit 'A' to 'C' schedule properties are the self acquired properties of deceased Sri.C.Munikapinappa. The defendants have failed to establish that Sri.C.Munikapinappa has bequeathed the suit 'A' and 'B' schedule properties in favour of defendant No.2 to 5 through the 'Will' dated 10.02.2014. Sri.C.Munikapinappa died intestate leaving 41 O.S.No.6977/2014 behind the plaintiffs and defendant No.1 as his legal heirs. The plaintiff No 1, Plaintiff No.2, defendant No.1 being the children and plaintiff No.3 being the wife of Kantharaju.M. and daughter-in-law of Sri.C.Munikapinappa, they are entitled for ¼ share each in the suit 'A' to 'C' schedule properties. As the 'Will' dated 10.02.2014 is not executed by Sri.C.Munikapinappa, the question of declaring that the same is not binding on the plaintiffs does not arise. Though the plaintiffs have sought for mesne profits, they have not chosen to adduce the evidence. A separate enquiry is required to ascertain the mesne profits. Indeed the plaintiffs and defendant No.1 are entitled for ¼ share in the suit 'A' to 'C' schedule properties. Accordingly I hold issue No.2, 4, 6 and 7 in the Affirmative, issue No.3 and 5 does not arise.
21. Issue No.8: In view of the discussion made on Issue No.1 to 7 and additional issue No.1 to 3, this court proceed to pass the following:
42 O.S.No.6977/2014
ORDER The suit filed by the plaintiffs is decreed with costs.
The plaintiffs and defendant No.1 are entitled for ¼ share each in the suit 'A' to 'C' schedule properties.
A separate enquiry shall be
conducted to ascertain the mesne
profits.
Draw preliminary decree
accordingly.
(Dictated to the Stenographer Grade-1, typed by her, corrected and then pronounced in the Open Court by me on 12th day of December, 2025.) (Srinivasa Gowda.C) XXIX Addl.City Civil and Sessions Judge Bengaluru.
ANNEXURE WITNESS EXAMINED ON BEHALF OF PLAINTIFF/s:
PW1 : Shardamma DOCUMENTS EXAMINED ON BEHALF OF PLAINTIFF/s:
Ex.P1 : Genealogical tree
43 O.S.No.6977/2014
Ex.P2 : Certified copy of Certificate dated 18.11.2013
issued by Bruhath Bengaluru Mahanagara Palike Ex.P3 : Katha extract Ex.P4 : Attested copy of tax paid receipt dated 14.11.2013 Ex.P5 : Certified copy of katha Ex.P6 : Katha extract Ex.P7 : Certified copy of sale deed dated 15.04.1968 Ex.P8 : Certified copy of sale deed dated 03.03.1994 Ex.P9 : 'Will' dated 10.02.2014 Ex.P10 : 'B' register extract WITNESS EXAMINED ON BEHALF OF DEFENDANT/s:
DW1 : R,Mahesh Kumar DW2 : Sarvamangalamma DW3 : M.G.Suresh DW4 : R.Dinesh Kumar
DOCUMENT EXAMINED ON BEHALF OF DEFENDANT/s:
Ex.D1 : Letter issued by M.S.Ramaiah Hospital Ex.D2 : Death Certificate of C.Munikapinappa Ex.D3 : Absolute sale deed dated 29.05.2004 Ex.D4 : Absolute sale deed dated 29.05.2004 Ex.D5 : Will dated 10.02.2014 44 O.S.No.6977/2014 Ex.D6 : Caste Certificate Ex.D7 : Aadhar card of deceased Munikapinappa (Srinivasa Gowda.C) XXIX Addl.City Civil and Sessions Judge Bengaluru.45 O.S.No.6977/2014
(Judgment pronounced in open court vide separate judgment) ORDER The suit filed by the plaintiffs is decreed with costs.
The plaintiffs and defendant
No.1 are entitled for ¼ share
each in the suit 'A' to 'C'
schedule properties.
46 O.S.No.6977/2014
A separate enquiry shall be
conducted to ascertain the
mesne profits.
Draw preliminary decree
accordingly.
XXIX A.C.C & S.J., Bengaluru