Bangalore District Court
Smt. A. Venkateshamma D/O Late Sri vs (In O.S.3054/1987) 1. Sri. A.Sreenivas ... on 22 January, 2015
C.R.P. 67) Govt. Of Karnataka
TITLE SHEET FOR JUDGEMENTS IN SUITS
Form No.9(Civil)
Title sheet for
Judgment in
Suits
(R.P.91)
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.2)
Dated this the 16th day of November,2007.
PRESENT
BHIMAPPA G. JATTENNAVAR, B.A.,LL.B.,
I Addl. City Civil & Sessions Judge, Bangalore.
O.S. NOS. 3054/1987 & 2429/1991
PLAINTIFF Smt. A. Venkateshamma D/o Late Sri.
(IN O.S.3054/1987 H.Anjaneya Gowda, aged about 43years,
r/a No.J-28, RamakrishnaPuram,
Subedar Chatram Road, Bagnalore -9.
(By Sri K.M. Prakash, Advocate)
IN O.S.2429/1991) Smt. A. Venkateshamma D/o Late Sri.
H.Anjaneya Gowda, aged about 47years,
r/a No.J-28, RamakrishnaPuram,
Subedar Chatram Road, Bagnalore -9.
(By Sri K.M.Prakash, Advocate)
- VERSUS-
DEFENDANTS
(IN O.S.3054/1987) 1. Sri. A.Sreenivas Murthy S/o Late
H.Anjaneya Gowd, aged about 45years;
since deceased by his LRs.
1(a) Smt. Yashodamma W/o A. Sreenivasa
Murthy, aged about 48years;
1(b) Sri. J.S.Venkatesh, S/o A. Sreenivasa
Murthy, aged about 22years;
2 OS No.3054/1987 & 2429/1991
1(c)J.S.Shashidhar S/o A.Sreenivasa
Murthy, aged about 20years;
1(d)J.S.Kriran S/o A.Sreenivasa Murthy,
aged about 18years,
1(e) Miss. J.S.Soudhamani, D/o
A.Sreenivasa Murthy, aged about
16years,
Defendant Nos. 1 (a) to (e) are the
residents of Jakkur, Yelahanka post,
Yelahanka Hobli, Bangalore North Taluk.
(D.Nos.1(a to f) by SMt. M.N.Prabhamani)
--------------------------------------------------
1. Sri. A.Sreenivas Murthy S/o Late
--------------------------------- H.Anjaneya Gowd, since deceased by his
(IN O.S.2924/1991) LRs.
2. Smt. Yashodamma W/o A. Sreenivasa
Murthy, aged about 45years;
3. Sri. J.S.Venkatesh, S/o A. Sreenivasa
Murthy, aged about 19years;
4. J.S.Shashidhar S/o A.Sreenivasa
Murthy, aged about 17years,since
minor represtned by his father and
natural guardian Sri.A.Sreenivasa
Murthy (the defendant No.1 in the
cause title herein above)
5. J.S.Kriran S/o A.Sreenivasa Murthy,
aged about 15years, since minor
represtned by his father and natural
guardian Sri.A.Sreenivasa Murthy (the
defendant No.1 in the cause title herein
above)
6. Miss. J.S.Soudhamani, D/o
A.Sreenivasa Murthy, aged aobutr
13years, since minor represtned by his
3 OS No.3054/1987 & 2429/1991
father and natural guardian
Sri.A.Sreenivasa Murthy (the defendant
No.1 in the cause title herein above)
The defendant Nos. 2 to 6 are residents of
Jakkur, Yelahanka Hobli, Bangalore North
Taluk.
7. Smt. A.Srinivasamma D/o Late
H.Anjaneya Gowda, since deceased by
her LRs:
(a) Smt. Geetha Devi. A., D/o
B.N.Anjanappa, aged about 37years,
r/a No.241, 3rd stage, 3rd block,
Basaveshwaranagar, Bangalore - 79.
(b) A. Guru Murthy S/o B.N.Anjanappa,
aged about 35years, r/a C/o
B.N.Anjanappa, No.282, 3rd block,
17t5h cross, (17 'D' Main Road,
Rajajinagar), Bangalore - 560 010.
(c) A. Prakash S/o B.N.Anjanappa, aged
about 33years, r/a No.282, 3rd block,
17t5h cross, (17 'D' Main Road,
Rajajinagar), Bangalore - 560 010.
(d) A. Manjula, D/o B.N.Anjanappa, aged
about 30years, r/a Central Institute of
Fresh Water, Agriculture,
Stenographer, 8th cross, 7th main,
Malleshwaram, Bangalore - 3.
(e) Dr. A. Indra D/o B.N.Anjanappa, aged
about 28years, r/a No.282, 3rd block,
17th cross, (17 'D' Main Road,
Rajajinagar), Bangalore - 560 010.
8. Smt. Akkayyamma w/o Sri.
B.S.Krishnaiah, aged about 35years,
r/a Jakkur Village, Yelahanka Hobli,
Bangalore North Taluk.
4 OS No.3054/1987 & 2429/1991
9. Smt. Kasturi W/o Sri. V.Jayaram, r/a
no.19, Sangam Road, Civil Station,
Bangalore - 42.
10. Sri. V.Shanmugam, S/oVelayudham
Chetiar;
11. Smt. S.Dhanalakshmi W/o
V.Shanmugam ;
Defendant Nos. 10 & 11 are r/a No.104,
St.John's Road, Dasappa Layout,
Bangalore - 42.
(LRs of D.1 and D.2 to 6 represented by
Smt.M.N.Prabhamani - Advocate, LRs of
D.7 represented by Sri.A.N.Venugopal-
Advocate, D.9 to 11 by
Sri.M.S.Subbarayappa-Advocate)
-------------------------------------------------------------------------
Date of institution of the suit: (1) 16.7.1987 (2) 15.4.1991
Nature of the suit (suit on (1) Permanent injunction
pronote, suit for declaration (2) Partition and separate
and possession suit for possession.
injunction,etc) :
Date of the commencement of (1) 26.10.1995
recording of the evidence : (2) 10.10.2003
Date on which the Judgment 16.11.2007
was pronounced :
Total duration Year/s Month/s Day/s
(1) 20 04 00
(2) 16 07 01
(BHIMAPPA G. JATTENNAVAR)
I Addl.City Civil & Sessions Judge,
Bangalore.
5 OS No.3054/1987 & 2429/1991
COMMON JUDGMENT
These are the two suits filed by the same plaintiff
against the defendant and the suit OS 3054/1987 is for
permanent injunction restraining the defendant from
interfering into the possession of the plaintiff over the
suit schedule properties or from alienating the suit
schedule properties and suit OS No.2429/1991 is also
filed by the same plaintiff against the defendant in OS
No.3054/1987 and also against the purchasers of some
of the suit schedule properties, for partition and separate
possession of her 1/3rd share in the suit schedule
properties.
1.01. The brief facts of the plaintiff's case in both the
cases are that the defendant No.1 in OS 2429/1991 and
the sole defendant in OS 3054/1987 is the elder brother
of the plaintiff and similarly the defendant No.7 in OS
2429/1991 is the elder sister of both the plaintiff and
defendant No.1 and it is contended that they are the
daughters and sons of one Sri. H.Anjaneya Gowda and
6 OS No.3054/1987 & 2429/1991
he had vast movable and immovable properties and he
died on 8.9.1978. The immovable properties left by
H.Anjaneya Gowda constituted agricultural lands like dry
and wet lands and house properties situated at Jakkur
Yelahanka Hobli, Bangalore North Taluk, and he also
owned and left a vast house property with standing
structures situated at No.J-28, R.K.Puram, Subedar
Chatram Road, Bangalore, and they are more fully
described in the schedule of both the suits. It is
contended that H.Anjaneya Gowda died leaving behind
the plaintiff, defendant No.1 and defendant No.7 in the
suit OS 2429/1991 as his legal heirs and plaintiff and
defendant No.1 are the plaintiff and defendant in OS
3054/1987. Further, It is contended that the wife of said
H.Anjaneya Gowda namely Smt. Muniakkayamma had
predeceased said H.Anjaneya Gowda and it is contended
that H.Anjaneya Gowda executed a Will in the year 1969
bequeathing the properties in favour of his two daughters
and only son and had told this information to the plaintiff
7 OS No.3054/1987 & 2429/1991
after the death of plaintiff's mother Smt.
Muniakkayamma while plaintiff was lamenting due to the
death of her mother and H.Anjaneya Gowda had not
given clear details of his Will tot he plaintiff, but no doubt
he has executed a Will and bequeathed the out house
portion of the house property at Ramakrishnapuram,
S.C.Road, Bangalore, which is prescribed as 'B' schedule
property and it is a part of the 'A' suit property in OS
3054/1987 and further, it is contended that the husband
of the plaintiff was suffering from some ailments and
therefore, the plaintiff came and asked H.Anjaneya
Gowda to give a separate residence to her and
accordingly H.Anjaneya Gowda had given the portion of
'B' schedule property to the plaintiff and accordingly the
plaintiff started the silk twisting industry in the suit
schedule 'B' property wherein H.Anjaneya Gowda himself
has authorised the electrical department by submitting
'No objection' for running the silk twisting machine in
the suit schedule 'B' property. However, some of the
8 OS No.3054/1987 & 2429/1991
tenants are there in the suit schedule 'A' property and
ultimately H.Anjaneya Gowda permitted the plaintiff to
collect the rent of the property and accordingly the
plaintiff is collecting the rents from the suit schedule 'A'
property. Thereafter, the husband of the plaintiff passed
away and even then the plaintiff continued to reside in
the portion of the suit schedule 'B' property in suit OS
3054/1987 and also she is collecting the rent of suit
schedule 'A' property. Further, the plaintiff has also
obtained the permission from the KEB for running the
silk twisting factory for installing the 3 HP electrical
motor. Accordingly, the plaintiff is in possession of the
suit schedule 'A & B' property of suit OS 3054/1987.
But, recently it is learnt that the defendant got managed
to cancel the earlier Will executed by the father , with
cancellation deed on 30.12.1974 and on the same day,
he got bequeathed the suit schedule properties in favour
of the defendant Nos. 3 & 4 of suit OS 2429/1991, who
were the sons of defendant No.1 of that suit and also in
9 OS No.3054/1987 & 2429/1991
favour of the plaintiff and accordingly in that Will, the
suit schedule 'B' property was bequeathed in favour of
defendant No.3 & 4of that suit and in the guise of that
Will, the defendant in O.S.3054/1987 has tried to
alienate the suit schedule property to third persons and
further, It is contended that the alleged Cancellation deed
executed by the father on 30.12.1974 is not binding on
the plaintiff because the father has not at all cancelled
the earlier Will and also not at all executed the latter Will
as relied on by the defendant and therefore, the plaintiff
is constrained to file the suit OS No.3054/1987 for
restraining the defendant-brother from interfering in the
peaceful possession and occupation of the plaintiff over
suit schedule A & B properties to anybody. Hence, the
suit os 3054/1987.
1.02. During the pendency of the suit OS
3054/1987, the plaintiff has also filed another suit OS
2429/1991 against his brother who is the defendant in
the earlier suit OS 3054/1987 and also against his sister
10 OS No.3054/1987 & 2429/1991
who is the defendant No.7 of suit OS 3054/1987 and
also against the defendant Nos.8 to 10 who were the
purchasers of some of the suit schedule properties for
partition. Further, during the pendency of the suit, the
defendant No.1 of suit OS 2429/1991 who is the sole
defendant in OS 3054/1987- the brother of the plaintiff
died and accordingly the defendant Nos. 2 to 6 are the
LRs of the deceased defendant No.1. Now, the suit OS
2429/1991 is filed for partition and separate possession
of the suit schedule property and accordingly in that suit
also, the claim of the plaintiff is based on the earlier Will
and therefore, she has denied the subsequent Will.
Hence, she sought for partition and separate possession
in accordance with the earlier Will and in the alternative,
she has sought for valuation of her 1/3rd share. Hence,
the suit OS 2429/1991.
2. The sole defendant in OS 3054/1987 has filed
the written statement and admitted the relationship and
denied that the suit schedule properties are the joint
11 OS No.3054/1987 & 2429/1991
family properties of the plaintiff and defendants. But,
however, he denied that the suit schedule properties are
the self-acquired properties of H.Anjaneya Gowda. He
has also admitted that there was an earlier Will dated
8.1.1969 as relied by the plaintiff. But, on the other
hand, it is contended that H.Anjaneya Gowda during his
lifetime, cancelled the earlier Will by executing a
Cancellation deed on 30.12.1974 and H.Anjaneya Gowda
executed another Will which is the last Will on the same
day on 30.12.1974 and bequeathed the suit schedule 'B'
properties in favour of defendant Nos. 3 & 4 of Suit OS
2429/1991 who are the sons of defendant. Further, it is
contended that some other properties have been
bequeathed in favour of the plaintiff and defendant No.7
in OS 2429/1991 and therefore, it is contended that the
claim of the plaintiff cannot be considered. Because, it is
contended that the Will executed in the year 1974 is the
last Will and accordingly H.Anjaneya Gowda has
testamented all the suit schedule properties in
12 OS No.3054/1987 & 2429/1991
accordance with the second Will and therefore it is
denied that the plaintiff is entitled to the partition as per
the earlier Will. However, after the death of the
defendant, his LRs have filed the written statement in the
suit OS 2429/1991 and they have also adopted the
contentions of their father taken in the suit OS
3054/1987. But, however, they have stated that already
the defendant Nos. 8 to 11 have purchased some of the
properties from defendant Nos. 3 & 4 on the strength of
the Will executed by H.Anjaneya Gowda and accordingly
they are in possession of the item Nos. 1 & 10 of the suit
schedule 'A' property. Therefore, they have requested to
dismiss both the suits.
2.01. However, the defendant Nos. 9 to 11 filed their
common written statement and they denied the
contention of the plaintiff that the suit schedule
properties are the joint family properties of the plaintiffs
and defendants. But, it is contended by the defendant
Nos. 9 to 11 that they have purchased the item No.10(I)
13 OS No.3054/1987 & 2429/1991
& 10(ii) of the suit schedule 'A' properties involved in the
suit OS 2429/1991 from the defendant No.1 as guardian
of defendant Nos. 3 & 4 on 14.3.1991 and accordingly
they are in enjoyment of the suit schedule properties.
Further, it is contended that prior to the transfer of the
above said properties, the defendant No.1 has filed the
Guardian and Wards Case on the file of the Additional
CityCivil Judge, Bangalore, for obtaining permission to
sell the suit schedule property on behalf of defendant
Nos. 3 & 4 and accordingly the permission was granted
on 10.8.1987. Thereafter, the plaintiff herein has
preferred miscellaneous first appeal before the Hon'ble
High Court of Karnataka in MFA No.2675/1988.
However, the Hon'ble High Court of Karnataka has
confirmed the order passed in G&WC and therefore, it is
contended that now the plaintiff has no locus standi to
contend that the sale deed is not binding on her and
further, it is contended that as per the Will dated
30.12.1974, the suit schedule properties item Nos.10(i) &
14 OS No.3054/1987 & 2429/1991
10(ii) of suit schedule 'A' properties have fallen to the
share of defendant Nos. 3 & 4 and therefore, they have
purchased the said properties from defendant No.1 as
guardian of the defendant Nos. 3 & 4 and therefore,
consequently requested to dismiss the suit.
2.02. However, the defendant No.8 who purchased
the item No.1 of the suit schedule 'A' property has
remained absent.
2.03. The properties and the parties involved in both
the suits are one and the same and accordingly my
learned predecessor in Office has ordered to club the suit
OS 2429/1991 with the suit OS 3054/1987 and
accordingly he has recorded the common evidence in OS
3054/1987 and accordingly I have heard common
arguments. Hence, this Common Judgment.
3. On these pleadings of the parties, the following
issues have been framed by my learned predecessor in
Office, in the suit OS 3054/1987:
Issues in OS 3054/1987:
15 OS No.3054/1987 & 2429/1991
1. Whether the plaintiff has got legal right, title and
interest in the schedule property ?
2. Whether the father of the plaintiff executed a
registered Will on 8.1.1969 by bequeathing the suit
schedule properties in favour of plaintiff ?
OR
Whether the defendant proves that his father executed
a registered Will on 30.12.1974 duly cancelling the
Will dated 8.1.1969 by bequeathing the suit properties
in favour of Venkatesh and Shashidhar ?
3. Whether the suit without a relief of declaration of the
title to the properties is not maintainable ?
4. Whether the plaintiff was in juridical possession of the
suit schedule properties on the date of suit as claimed
by her ?
5. Whether the plaintiff is entitled to the permanent
injunctions sought ?
6. To what reliefs are the parties entitled ?
Issues in OS 2429/1991:
1. Whether the plaintiff proves execution of the Will dated
8.1.1969 by Sri. H.Anjaneya Gowda in faovur of
defendant No.1 and 7 and to her pertaining to the suit
A schedule property ?
2. Whether the plaintiff proves that she is entitled for
1/3rd share in the suit A schedule and also 1/3rd
share in the suit plaint C Schedule house for partition
and separate possession of the same by metes and
bounds ?
3. Whether the plaintiff proves in case the suit schedule
property are not possible to partition by metes and
16 OS No.3054/1987 & 2429/1991
bounds and she is entitled for 1/3rd share of the value
raised in Court auction of the suit schedule property ?
4. Whether the plaintiff is entitled for enquiry to mesne
profits ?
5. Whether plaintiff proves that the cancellation of the
Will dated 8.1.1969 as per cancellation deed dated
30.12.1974 is not binding on her ? (Struck off as
per Order dated 7.1.2005)
6. Whether plaintiff proves that appoint of A.Sreenivasa
Murthy as Guardian of the minors as per the Order in
G & WC No.10039/1987 on the file of 3rd
Addl.CityCivil Judge, Bangalore, were brought
fraudulent and not binding on her ?
Modified Issue Nos.7 & 8(as per order dated
3.1.2004):
7. Whether defendant Nos. 2 to 6 prove the due execution
of the Will dated 30.12.1974 and the cancellation
Deed dated 30.12.1974 by late Anjaneya Gowda ?
8. Whether plaintiff proves that the Will and the
Cancellation Deed dated 30.12.1974 are the outcome
of fraud, undue influence and coercion by the first
defendant ?
9. Whether the defendant proves that the suit is barred
by law of limiation ?
10. Whether the suit is under valued and the Court Fee
is insufficient ?
11. To what reliefs are the parties entitled to ?
12. To what Order or decree ?
17 OS No.3054/1987 & 2429/1991
4. Heard the arguments of both the sides and
perused the records.
5. The plaintiff has been examined as PW.1 and got
marked the documents as per Exs.P.1 to P.35. The
defendants have examined three witnesses as DWs 1 to 3
and got marked the documents as per Exs.D.1 to D.27.
6. My findings on the above issues are as follows: -
IN O.S.NO.3054/1987:
(1) ISSUE NO.1 : In Affirmative
(2) ISSUE NO.2-first part : In Affirmative
(3) ISSUE NO.2 second part : In negative
(4) ISSUE NO.3 : In Negative
(5) ISSUE NO.4 : In Negative
(6) ISSUE NO.5 : In the Negative
(7) ISSUE NO.6 : As per final order.
IN O.S.NO.2429/1991
(1) ISSUE NO.1 : In Affirmative
(2) ISSUE NO.2 : Yes, in general partition
(3) ISSUE NO.3 : Does not survive for consideration
(4) ISSUE NO.4 : Not entitled
(5) ISSUE NO.5 : Already struck off
(6) ISSUE NO.6 : Yes
(7) ISSUE NO.7 : In Negative
(8) ISSUE NO.8 : In Affirmative
(9) ISSUE NO.9 : In Negative
(10) ISSUE NO.10 : In Negative
(11) ISSUE NO.11 : Entitled for partition and separate possession
of 1/3rd share in all the suit schedule properties.
(12) ISSUE NO.12 : As per final Order
18 OS No.3054/1987 & 2429/1991
REASONS
7. ISSUE NO.2(First part) in OS 3054/1987 & Issue
No.1 in OS 2429/1991:- These two issues are one and
the same and therefore, I take up these two issues at a
stretch for my discussion.
7.01. The relationship between the parties that one
Sri. H.Anjaneya Gowda had two daughters namely the
plaintiff in both the suits and deceased defendant No.7 in
OS 2429/1991 and only son who is the deceased
defendant in OS 3054/1987 deceased defendant No.1 in
OS 2429/1991, is not at all disputed. It is also an
undisputed fact that the deceased Sri. H.Anjaneya
Gowda had vast movable and immovable properties
which are the subject matter of both the suits and also it
is an undisputed fact that some of the suit schedule
properties are the self -acquired properties of Sri.
H.Anjaneya Gowda and some of the suit schedule
properties are the ancestral properties of Sri. H.Anjaneya
Gowda. Further, it is also an undisputed fact that Sri.
19 OS No.3054/1987 & 2429/1991
H.Anjaneya Gowda has executed a Will dated 8.1.1969 in
faovur of plaintiff, deceased defendant No.1 of both the
suits included the deceased defendant No.7 of suit OS
2429/1991 as per Ex.P.1 and its original is produced at
Ex.D.9 and Ex.D.1 is the Certified copy of Ex.D.9. So,
here, with regard to the execution of the Will at Ex.D.9 by
Sri. H.Anjaneya Gowda in respect of the suit schedule
properties involved in both the suits, is not at all
disputed by either of the parties to the suit. It is also an
undisputed fact that as per the Will dated 8.6.1969, Sri.
H.Anjaneya Gowda has bequeathed the suit schedule 'C'
property involved in OS 2429/1991 in favour of the
plaintiff and suit schedule 'D' property involved in suit
OS 2429/1991 in favour of deceased defendant No.1 and
similarly the 'E' schedule property involved in OS
2429/1991 has been bequeathed in favour of deceased
defendant No.7. So, the Will dated 8.1.1969 has been
admitted by both the parties in both the suits and
therefore, there is no hurdle for the Court also to hold
20 OS No.3054/1987 & 2429/1991
this issue in favour of the plaintiff in both the Suits.
Hence, I answer these two issues in favour of the plaintiff
in both the suits.
8. Issue Nos.7&8 in OS 2429/1991 and Issue
no.2(second part) in OS 3054/1987:- All these three
issues are also interlinked to one another and therefore, I
answer all these issues at a stretch.
8.01. The main dispute involved in both the suits is
in respect of the second Will executed by Sri. H.Anjaneya
Gowda dated 30.12.1974 as per Ex.D.11. Here, though
both the parties to the suit admitted with regard to the
execution of the earlier Will dated 8.1.1969, subsequently
the defendants have contended that Sri. H.Anjaneya
Gowda cancelled the earlier Will on 30.12.1974 and
accordingly he executed the Cancellation Deed as per
Ex.D.10 and on the same day on 30.12.1974, he
executed another Will as per Ex.D.11. Admittedly, as per
the subsequent Will, the major portion of the properties
were bequeathed in favour of the defendant Nos. 3 & 4
21 OS No.3054/1987 & 2429/1991
who were the sons of deceased defendant No.1 and
admittedly they are the grand sons of the deceased Sri.
H.Anjaneya Gowda. Therefore, the plaintiffs in both the
suits questioned with regard to the validity, legality or
otherwise of the cancellation of the deed Ex.D.10
including the second will Ex.D.11 dated 30.12.1974. So,
here, if the defendants have established the second Will
ex.D.11 including the Cancellation deed Ex.D.10,
certainly the plaintiff will not be entitled for partition as
per earlier Will. Therefore, in this context of the matter,
now we have to discuss the evidence of both the parties.
However, in this case, the main burden of proving the
second Will is on the defendants that the deceased Sri.
H.Anjaneya Gowda cancelled the earlier Will as per
Ex.D.10 and executed another Will as per Ex.D.11.
However, during the pendency of this suit, the defendant
No.1 in both the suits, who is the only son of deceased
Sri. H.Anjaneya Gowda has expired and therefore, the
defendant Nos. 2 to 6 are the legal heirs of the deceased
22 OS No.3054/1987 & 2429/1991
defendant No.1 and defendant No.7 who is the elder
daughter of Sri. H.Anjaneya Gowda also died during the
pendency of the suit OS 2429/1991 and her LRs are also
brought on record as defendant Nos.7(a) to 7(e) and
defendant Nos. 8 to 11 are the purchasers of some of the
suit schedule properties. Here, the original defendant
No.1 who is the son of Sri. H.Anjaneya Gowda had not at
all filed the written statement in OS 2429/1991 during
his life time, though he filed the written statement and
denied the plaint allegations in OS 3054/1987 and
ultimately he set up the second Will Ex.D.11 including
the Cancellation deed Ex.D.10. Similarly, the LRs of the
deceased defendant No.1 filed the written statement in
OS 2429/1991 after the death of defendant No.1 and
they have also denied the plaint allegations and
ultimately they have also set up the second Will including
the Cancellation deed. Further, neither the defendant
No.7 nor her legal heirs have filed the written statement.
Though the defendant Nos. 9 to 11 filed the written
23 OS No.3054/1987 & 2429/1991
statement and denied the plaint allegations, they have
also supported the claim made by the defendant Nos. 2 to
6 with regard to the second Will Ex.D.11.
8.02. Here, the defendant No.4 is examined as DW.1
and he has supported and narrated the averments of the
written statement and defendant No.10 who is the
purchaser of item No.10 of suit schedule 'A' property has
filed his affidavit as DW.2 and the scribe of Ex.D.10 who
is attesting witness to Ex.D.11 is examined as DW.3. It
is true DW.3 who is the scribe of Ex.D.10 and attesting
witness to Ex.D.11 has also narrated and supported the
case of the defendants that the deceased H.Anjaneya
Gowda has cancelled the earlier Will by executing a
Cancellation deed Ex.D.10 and consequently executed
another Will on the same day on 30.12.1974 as per
Ex.D.11. Firstly there is no reason for H.Anjaneya
Gowda to cancel the earlier Will and to execute the
second will Ex.D.11. Because, on perusal of Ex.D.10
Cancellation deed and Ex.D.11 second Will, he has not at
24 OS No.3054/1987 & 2429/1991
all mentioned any reasons for the cancellation of the
earlier Will. In this regard, the learned Counsel
appearing for the defendant Nos. 1 to 6 has contended
that for cancellation of the Will including the execution of
the second Will, it is not necessary to furnish the
reasons. But, according to me, when a person is going
to cancel the earlier Will, he must have assigned the
reasons for execution of the second Will. Because, here
admittedly as per Ex.D.9 which is the first Will dated
8.1.1969, the plaintiff, defendant No.7 including the
deceased defendant No.1 are all the equal beneficiaries.
If so, when there was no reasons for the deceased
H.Anjaneya Gowda to cancel the said Will and to execute
the second Will as per Ex.D.11. However, on perusal of
Ex.D.9, the age of deceased H.Anjaneya Gowda was
'seventy years'. In para-5 of the Ex.D.9, H.Anjaneya
Gowda himself has stated in Kannada that " £À£UÀ É ±ÀjÃgÀz°
À è
¸Àé¸ÀÜ«®èzÉ ±ÀjÃgÀªÀÅ PÀȱÀªÁUÀÄvÁÛ §gÀÄvÁÛ ±ÀjÃgÀ §®ªÀÅ ¢£À ¢£À PÀrªÉÄ DUÀÄvÁÛ §gÀÄvÀÛ §ºÀ¼À
zÀæªÀåªÀÅ RZÀÄð DUÀÄvÁÛ EzÀÁUÝ ÀÆå ±ÀjÃgÀ¸ÀÜw GvÀÛªÀĪÁUÀzÀɬÄgÀÄvÉÛ". So,
25 OS No.3054/1987 & 2429/1991
considering the above contentions, it is clear that the
deceased H.Anjaneya Gowda was suffering from ailments
much less bodily weakness and therefore, he decided to
execute the Will as per Ex.D.9. So, at the time of
execution of Ex.D.9 itself, H.Anjaneya Gowda had
become very weak and he was loosing strength in his
body and therefore, he had decided to execute the Will
and accordingly executed the Will dated 8.1.1969.
8.03. Now, coming to the Cancellation deed dated
30.12.1974 is concerned, the age of the deceased
H.Anjaneya Gowda at the time of execution of
Cancellation deed Ex.D.10 was 75years and in
Ex.D.11which is the second Will, the age of the decesed
H.Anjaneya Gowda was mentioned as 76years. Here,
Ex.D.10 and D.11 were executed on the same day on
30.12.1974. So, when H.Anjaneya Gowda was very
weak at the time of Ex.D.9 itself, certainly we have to
consider his health condition at the age of 75 or 76 years
as per Ex.D.10 & D.11. Because at the age of 70years,
26 OS No.3054/1987 & 2429/1991
he decided to execute the Will Ex.D.9 looking to his
health condition. So, when he was 70years itself his
condition was bad, certainly at the age of 75-76, his
health condition must have been much deteriorated. So,
for these reasons also, Ex.D.10 & D.11 cannot be relied
on . Further, Ex.D.10 was written on the stamp paper of
Rs.12.50 and Rs.10/- and according to the defendants,
this Ex.D.10 was executed by H.Anjaneya Gowda at
Bangalore and accordingly in the Sub-Registrar's Office
at Gandhinagar, Bangalore, Ex.D.10 has been executed.
It is very interesting to note that both the stamp papers
for Ex.D.10 & Ex.D.11 were purchased at Sira on
30.12.1974 i.e., on the date of execute of Ex.D.10 & 11
itself. Here, on perusal of Ex.D.10, it can be seen that on
30.12.1984 between 11am and 12noon, Ex.D.10 was
presented for registration and on the same day, the
stamp paper for Ex.D.10 was purchased at Sire. Firstly,
there was no reason for H.Anjaneya Gowda to purchase
the stamp paper at Sira and then come to Bangalore and
27 OS No.3054/1987 & 2429/1991
to execute Ex.D.10. Because, it is not the case of the
defendants that the stamp papers were not at all
available at Bangalore and therefore, H.Anjaneya Gowda
has purchased the stamp paper at Sira. In this regard,
the learned Counsel appearing for the defendant Nos. 2
to 6 has contended that there was no restrictions to
purchase the stamp paper for execution of Ex.D.10
anywhere in the State. Even if we come to the conclusion
that there is no restriction to purchase stamp paper
anywhere in Karnataka, even then we have to consider
the time limit for purchasing the stamp paper on that
day. In this regard, when Ex.D.10 was presented before
the Sub-Registrar, it was between 11am and 12noon. It is
very clear that prior to that itself, the deed has to be
completed by bringing the stamp paper from Sira which
is situated at a long distance from Bangalore.
8.04. DW.3 during the course of his cross-
examination at Page-6, has stated that the father of the
plaintiff H.Anjaneya Gowda had already purchased the
28 OS No.3054/1987 & 2429/1991
stamp papers for writing Ex.D.10. But, it is not the case
of the defendants that 'Sira' is also situated in Bangalore
City and therefore, in the morning on 30.12.1974
H.Anjaneya Gowda purchased the stamp paper for
writing Ex.D.10 and thereafter he got prepared the deed
and presented the same for registration between 11am
and 12noon. Further, it is not the case of the defendants
that on 30.12.1974 the deceased H.Anjaneya Gowda had
been to Sira for purchasing the stamp paper for Ex.D.10
and thereafter he returned back to Bangalore and
executed Ex.D.10. Even H.Anjaneya Gowda has not
assigned any reasons for purchasing the stamp paper for
Ex.D.10 from 'Sira' because admittedly H.Anjaneya
Gowda was residing at 'Jakkur, Yelahanka, Bangalore',
which is also far away from Sub-Registrar's office at
Bangalore including Sira from where the stamp papers
were purchased. It is true DW.3 has stated that he wrote
Ex.D.10 and admittedly as per DW.3, the defendant No.1
Srinivas Murthy was also present at the time of writing
29 OS No.3054/1987 & 2429/1991
Ex.D.10 and he also signed as an attesting witness, as
per Ex.D.10(c). So, here, the deceased defendant No.1
was present at the time of execution of Ex.D.10 and he
too signed as an attesting witness to Ex.D.10 at
Ex.D.10(c). If so, I have no hesitation to hold that he has
also participated in the execution of the alleged second
Will Ex.D.11. Because both Ex.D.10 and D.11 were
executed on the same day at the same time, in the Office
of the Sub-Registrar, Gandhinagar, Bangalore. So, the
deceased defendant No.1 had participated in the
execution of both Ex.D.10 & D.11, by his father
H.Anjaneya Gowda. Further, admittedly at the time of
execution of Ex.D.9, the defendant No.1 was unmarried
and at the time of execution of Ex.D.10 & 11, already
defendant No.3 & 4 were born to him and therefore,
according to the defendants, the deceased H.Anjaneya
Gowda had executed a second Will and bequeathed major
portion of the suit schedule properties in favour of
defendant Nos. 3 & 4 and remaining partition in favour of
30 OS No.3054/1987 & 2429/1991
defendant No.7 & plaintiff. Further, when the deceased
defendant No.1 has participated in the execution of
Ex.D.10 & 11, he ought to have brought the plaintiff and
defendant No.7 also at the time of execution of Ex.D.10 &
D.11 to the Sub-Registrar's Office. Because, when
defendant No.1 has signed Ex.D.10, certainly he ought to
have brought the plaintiff and defendant No.7 also to the
Sub-Registrar's Office and obtained their signature also
to both the Ex.D.10 & D.11. The defendants may contend
that when the deceased H.Anjaneya Gowda himself has
executed Ex.D.10 & D.11, there was no necessity for
H.Anjaneya Gowda or the defendant No.1 to bring the
plaintiff or defendant No.7 at the time of executing
Ex.D.10 & D.11. But, according to me, when the
defendant No.1 has participated in the execution of
Ex.D.10 & D.11, certainly it was his duty to bring the
plaintiff also to the Sub-Registrar's Office, for
participation in the execution of Ex.D.10 & D.11 or at
least he ought to have informed the plaintiff with regard
31 OS No.3054/1987 & 2429/1991
to the execution of Ex.D.10 & D.11. So, here, the
participation of the propounder in the execution of the
Cancellation deed Ex.D.10 & Second Will Ex.D.11 itself is
a suspicious circumstance in the execution of the Will, as
per the decision reported in AIR 1990 SC 396-Head
Note(B); AIR 1965 SC 354-Head Note (A); AIR 1991
KARNATAKA 86 and 1986(1) KLJ 73, as relied by the
learned Counsel appearing for the plaintiff. Because,
here, in view of the above said decisions, the propounder
deceased defendant No.1 has not at all removed the
doubt about his participation while at the time of
execution of the Cancellation deed and the Second Will.
8.05. The defendants may contend that the
deceased defendant No.1 is not the beneficiary as per
Ex.D.10 & D.11 and therefore, the above said decisions
as relied on by the learned Counsel appearing for the
plaintiff, are not made applicable to the case on hand.
But, admittedly, he was one of the beneficiaries as per
the earlier Will Ex.D.9. Further, as per Ex.D.11, he is
32 OS No.3054/1987 & 2429/1991
the minor guardian to defendant Nos. 3 & 4 because, at
that time, the defendant Nos. 3 & 4 were minors.
Therefore, as a minor guardian of defendant Nos. 3 & 4,
certainly he is also one of the beneficiaries under
Ex.D.11. Further, when he was one of the beneficiaries
of Ex.D.9 earlier, certainly I have no hesitation to hold
that he is also one of the beneficiaries as per Ex.D.11.
Further, when the deceased defendant No.1 was one of
the beneficiaries of Ex.D.9, certainly it is not his duty to
participate in the execution of the subsequent Will
Ex.D.11including the Cancellation deed Ex.D.10.
Therefore, in view of the decisions cited supra, I have no
hesitation to hold that Ex.D.10 & D.11 are not at all
proved by the defendants with cogent, consistent and
reliable evidence.
8.06. DW.3 who is the scribe of Ex.D.10 and the
attesting witness to Ex.D.11, has stated that he do not
know the properties mentioned in Ex.D.11 as to whether
they are the self-acquired properties or the joint family
33 OS No.3054/1987 & 2429/1991
properties of the father H.Anjaneya Gowda. Further, he
do not know the contents of Ex.D.11. So, here, DW.3 do
not know the contents of Ex.D.11. Further, he has
stated that since the father of the plaintiff who is
H.Anjaneya Gowda requested him to put his signature as
an attesting witness, therefore, he had put his signature
to Ex.D.11. Further, he has stated that he do not know
anything about the previous Will and accordingly he has
stated that as per the request of the plaintiff's father, he
wrote the Cancellation deed as per Ex.D.10. So, here,
considering the cross-examination of DW.3 at Page-8, he
do not know about the previous Will Ex.D.9. But, on
perusal of Ex.D.10, which is the Cancellation deed of
earlier Will and when DW.3 himself is the scribe of
Ex.D.10, he ought to have enquired H.Anjaneya Gowda
about the previous Will or he ought to have insisted
H.Anjaneya Gowda to bring the previous Will while
canceling the earlier Will as per Ex.D.10. Further, it is
the statement of DW.3 that only at the request of
34 OS No.3054/1987 & 2429/1991
H.Anjaneya Gowda he wrote Ex.D.10. So, it is clear that
he do not know about the previous Will and only at the
instance of H.Anjaneya Gowda, he wrote Ex.D.10 and
also at the request of H.Anjaneya Gowda he put his
signature on Ex.D.11. However, when the deceased
defendant No.1 himself has participated while at the time
of execution of Ex.D.10 & D.11, the possibility cannot be
over ruled that he insisted H.Anjaneya Gowda to execute
Ex.D.10 & D.11 because ultimately his two sons
defendant Nos. 3 & 4 are the beneficiaries under
Ex.D.11. Therefore, for these reasons also, Ex.D.10 &
D.11 cannot be relied on. Further, admittedly Ex.D.11
which is the second Will, is typed in Kannada language.
In this regard, Ex.D.11 is also presented before the Sub-
Registrar's Office between 11am and 12 noon and
Ex.D.10 is also submitted between 11am and 12noon.
So, both Ex.D.10 & D.11 were presented before the Sub-
Registrar between 11am and 12noon. But, considering
the timing mentioned in Ex.D.10 & D.11, including the
35 OS No.3054/1987 & 2429/1991
evidence of DW.3, again Ex.D.10 & D.11 creates doubt
that they are genuine. Further, simply because the
Ex.D.10 & D.11 are registered documents, it cannot be
held that they have been proved, as per the decision
reported in ILR 2003 KAR 3153, as relied on by the
learned Counsel appearing for the plaintiff. Further,
when Ex.D.10 was written in the hand writing of DW.3,
then there was no reasons for H.Anjaneya Gowda to get
Ex.D.11 typed in Kannada language. Because, both
Ex.D.10 & D.11 were prepared on the same day at the
same time in the Sub-Registrar's Office. Further, there is
no evidence on record to show that where this Ex.D.11
has been typed. Whether it has been typed in the
premises of the Sub-Registrar's Office or elsewhere and
whether it has been typed on the same day on
30.12.1974 or earlier. It is true it was presented before
the Sub-Registrar on the same day on 30.12.1974 for
registration. But, there is no evidence on record to show
that whether it has been typed on 30.12.1974 itself or
36 OS No.3054/1987 & 2429/1991
prior to that date. However, when Ex.D.11 has been
typed in Kannada language, certainly I have no hesitation
to hold that one of the intelligent skill is involved for
preparing this Ex.D.11. Because, when Ex.D.10
Cancellation deed and Second Will Ex.D.11 were
executed and registered on the same day on 30.12.1974,
certainly there was no reasons for H.Anjaneya Gowda or
defendant No.1 to get written Ex.D.10 by DW.3 and
Ex.D.11 typed on Kannada typewriter. However, when
the stamp papers have been used for writing the
Cancellation deed Ex.D.10, certainly similar stamp
papers must have been used for Ex.D.11 also. Because,
on Ex.D.11, one 0.20p. revenue stamp has been affixed
and it has been cancelled. So, it is clear that the parties
were under the impression that Ex.D.11 has also to be
written on a stamp paper. If so, there was no reason for
H.Anjaneya Gowda or the deceased defendant No.1 to
get typed Ex.D.11 on the white paper, subsequently affix
37 OS No.3054/1987 & 2429/1991
only 0.20p. stamp on Ex.D.11. So, for these reasons also,
Ex.D.11 is not free from doubt.
8.07. Further, admittedly H.Anjaneya Gowda was a
retired Taluk Sheristedar. Therefore, there was no
difficulty for H.Anjaneya Gowda to write Ex.D.10 & D.11
in his own hand writing, because in this case, it is not
the case of the defendants that due to old age,
H.Anjaneya Gowda was unable to write himself and
therefore he got it written by DW.3 and ultimately got
Ex.D.11 typed. Further, when DW.3 has written Ex.D.10,
certainly he ought to have written Ex.D.11 also. So,
there was no reasons for H.Anjaneya Gowda or deceased
defendant No.1 to get the Ex.D.11 typed in Kannada on a
typing machine. Further, the attesting witness DW.3
himself has stated that he do not know the contents of
Ex.D.11 and he has also stated that as per the request of
H.Anjaneya Gowda, he has put his signature on Ex.D.11
as an attesting witness. So, here, Ex.D.11 is also not
proved by the defendants by examining the attesting
38 OS No.3054/1987 & 2429/1991
witness. It is true DW.3 is also one of the attesting
witnesses to Ex.D.11. But, he do not know the contents.
On the other hand, he only put his signature on Ex.D.11
at the request of H.Anjaneya Gowda. So, when DW.3 has
acted as per the request of deceased H.Anjaneya Gowda,
certainly I have no hesitation to hold that the evidence of
DW.3 cannot be relied on. Therefore, I hold that the
defendants have failed to establish Ex.D.11 as per the
decision reported in 1991(3) KLJ 188 and AIR 1981
Madras 252 and ILR 2002 KAR 4273 as relied on by the
learned Counsel appearing for the plaintiff.
8.08. Further, admittedly H.Anjaneya Gowda was
aged about 75 or 76years at the time of execution of
Ex.D.10 & D.11. So, it is clear that he was very old at the
time of execution of Ex.D.10 & D.11. Further, the
deceased defendant No.1 has participated at the time of
execution of Ex.D.10 & D.11. If so, that itself is sufficient
to create doubt about the execution of Ex.D.10 & D.11,
as per the decision reported in MLJ 1963 83. Further, as
39 OS No.3054/1987 & 2429/1991
per the decision reported in AIR 1990 SC 2201, as relied
on by the learned Counsel appearing for the plaintiff.
Further, while construing a Will, the Court should try to
ascertain the intention of the testator including the
language of the document. Here, admittedly there was
no reasons for H.Anjaneya Gowda to cancel Ex.D.9 and
in its place to execute the second Will Ex.D.11. So, the
intention of the testator H.Anjaneya Gowda is not at all
established by the defendants. Secondly though
Ex.D.10 is written in handwriting, Ex.D.11 is got typed
on Kannada typing machine. So, these aspects of the
matter also creates doubt about the genuinity of both the
documents. Therefore, in view of the above said decisions
also, Ex.D.10 & D.11 cannot be relied on. It is true DW.2
who is the defendant No.10-one of the purchasers of item
No.10 of suit schedule 'A' property, was not at all cross-
examined by the plaintiff. But, on 27.10.2006, it was
mentioned in the Order sheet that he was not available
for cross-examination and accordingly the cross-
40 OS No.3054/1987 & 2429/1991
examination was taken as nil. However, he is one of the
purchaser of item No.10 of the suit schedule 'A' property
and his evidence is based on the evidence of DW.1, who
is the defendant No.4 or his case is based on the case
made out by the deceased defendant No.1. Further, he is
not a party to Ex.D.10 or Ex.D.11. Therefore, we should
not give much importance to the evidence of DW.2, so far
as Ex.D.10 & D.11 are concerned. Because, he is
neither an attesting witness nor a scribe of Ex.D.10 &
D.11, but only he is a purchaser and he has purchased
item No.10 of the suit schedule 'A' property, as per the
say of deceased defendant No.1 from defendant No.1 as
minor guardian of defendant Nos. 3 & 4. It is true the
deceased defendant No.1 has filed G&WC Case before the
II Addl.Civil Judge, Bangalore, on behalf of defendant
Nos. 3 & 4 for permission to sell the Item No.10 of the
suit schedule 'A' property, in G&WC.no.10039/1987 as
per Ex.D.27. Accordingly the Court has granted
permission to sell the Item No.10 of the suit schedule 'A'
41 OS No.3054/1987 & 2429/1991
property and accordingly the deceased defendant No.1
has sold the Item No.10 of the suit schedule 'A' property,
in favour of defendant Nos.9 to 11, for a sum of Rs.17
Lakhs. In this regard, on perusal of evidence of DW.1
who is defendant No.4, during the course of cross-
examination, he has stated that in G&WC Case
No.10039/1987, himself and his brother-defendant No.3
filed an affidavit stating that they have attained the age of
majority and there is no need to sell the properties and
after filing the said affidavit in G&WC proceedings, his
father defendant No.1 has sold item No.10 of the suit
schedule 'A' property to defendant Nos. 9 to 11. Further,
himself and defendant No.3 have not at all put their
signature on the sale deed executed by their father in
respect of item No.10 of the suit schedule 'A' property.
So, it is clear that at the time of filing G&WC case, both
defendant Nos. 3 & 4 had attained the age of majority
and accordingly they had filed the affidavit stating that
they had attained the age of majority and there is no
42 OS No.3054/1987 & 2429/1991
need to sell the suit schedule property, but the deceased
defendant No.1 obtained permission and sold the suit
schedule property . Here, when defendant Nos.3 & 4 had
attained the age of majority, then there was no necessity
for defendant No.1 to obtain permission from the Court
in G&WC proceedings. Therefore, the obtaining of
permission from the Court in G&WC case by the
deceased defendant No.1, including filing of the G&WC
proceedings, itself is not free from doubt. Because, that
G&WC proceedings is based on the second Will Ex.D.11
and in that Ex.D.11, the item No.10 of the suit schedule
'A' property was bequeathed in favour of Defendant Nos.
3 & 4 and therefore, the defendant No.1 had filed the
G&WC case and obtained permission for selling the item
No.10 of the suit schedule 'A' property. Firstly, when the
defendant No.3 & 4 had attained the age of majority,
there was no need for defendant No.1 to obtain
permission on their behalf to sell the suit schedule
property and further, it was necessary for the defendant
43 OS No.3054/1987 & 2429/1991
No.1 to obtain the signatures of defendant Nos. 3 & 4 on
the sale deed when they attained the age of majority.
Therefore, for these reasons also, the claim made by the
defendant Nos. 2 to 6 based on Ex.D.10 & D.11 has no
relevancy.
8.09. It is true the Order passed in G&WC Case
No.10039/1987 has been confirmed by the Hon'ble High
Court of Karnataka in MFA 2675/1988 wherein the
present plaintiff has challenged the said Order. But,
admittedly while disposing off the MFA No.2675/1988,
the Hon'ble High Court of Karnataka was pleased to
observed that the appellant-plaintiff is at liberty to urge
the grounds with regard to the Will in the appropriate
proceedings, which is either pending or instituted
hereinafter. So, by reserving the liberty to the plaintiff to
agitate her rights in respect of the suit schedule property
in the proceedings either pending or to be instituted. The
Hon'ble High Court of Karnataka' dismissed the MFA.
Therefore, for these reasons also, whatever the order
44 OS No.3054/1987 & 2429/1991
passed in the G&WC 2675/1988 as per Ex.D.27, does
not come in the way of the plaintiff to claim her legitimate
share in the suit schedule properties.
8.10. The defendants have also relied on Ex.D.25 &
D.26 which are the letters written by the plaintiff to the
deceased defendant No.1, wherein she has demanded
some money from defendant No.1. But, on perusal of
Ex.D.25 & D.26 as a whole, the plaintiff has not at all
relinquished her rights in the suit schedule properties
either in favour of defendant No.1 or defendant Nos.2 to
6. So, simply because the plaintiff has written some
letters to the defendant No.1 demanding money, it does
not mean that she has consented for the second Will
Ex.D.11 and therefore, Ex.D.25 and D.26 also does not
come to the aid of the defendants to contend that the
plaintiff is bound by the Cancellation deed Ex.D.10 and
second Will Ex.D.11. Ex.D.23 & D.24 are the postal
covers wherein Ex.D.25 & 26 have been dispatched.
Exs.20 to 22 are the Encumbrance Certificates issued by
45 OS No.3054/1987 & 2429/1991
the City Corporation, Bangalore, wherein Ex.D.20 & 22
stands in the name of Shanmugam-defendant No.9 and
Ex.D.21 stands in the name of one Smt. G.Kasturi. But,
when the Will Ex.D.11 itself is not proved with cogent,
consistent and reliable evidence, certainly we should not
given much importance to the entries made in Exs.D.20
to 22. Ex.D.13 is the tax paid receipt pertaining to item
No.10 of the suit schedule 'A' property, wherein the name
of deceased Srinivas Murthy has appeared and Exs.D.14
to D.19 are also the tax paid receipts wherein the name
of defendant No.9 Shanmugam has appeared for Item
No.10 of the suit schedule 'A' property. But, they are
neither the documents of title nor possession. Therefore,
they are also not helpful to the case of the defendants to
establish their claim. Ex.D.3 is the Certified copy of the
Order issued in G&WC Case No.10039/1987 and that
aspect of the matter has already been discussed by me
and held that it will not come in the way of the plaintiff to
claim her legitimate share. Exs.D.4 to 8 are the records
46 OS No.3054/1987 & 2429/1991
of right pertaining to the agricultural lands for the year
2004-05 wherein the names of defendant Nos. 3 & 4 have
appeared, on the basis of the second Will Ex.D.11,
including the Cancellation deed Ex.D.10. But, when
Exs.D.10 & D.11 have not been proved, certainly we
should not give much importance to the entries made in
Exs.D.4 to D.8 in the name of defendant Nos. 3& 4.
8.11. As against this, with regard to the
genuineness of the second Will is concerned, the learned
Counsel appearing for the defendant Nos. 2 to 6, by
relying on the decision reported in 1969(2) MLJ Page 105,
has contended that the Will became effective when the
testator died and hence, the validity of the disposition
made under the Will, can be decided with reference to the
circumstances and the law prevailing on the date of the
death of the testator. But, nowhere it is held that
immediately after the death of the testator, Will becomes
valid without looking to the legality or otherwise of the
Will. But, on the other hand, their Lordship of our own
47 OS No.3054/1987 & 2429/1991
Hon'ble High Court of Karnataka have observed in the
above said decision itself that the circumstances and the
law prevailing on the date of the death of the testator is
also to be considered for proving the Will. Here, while
discussing we have already come to the conclusion that
there was no circumstances or reasons for H.Anjaneya
Gowda to execute the second Will. However, as per the
decision reported in AIR 1990 SC 2201, as relied on by
the learned Counsel appearing for the plaintiff, the
intention of the testator is to be considered including the
language of the document while proving the Will and
here, there was no intention for H.Anjaneya Gowda to
execute the second Will and therefore, in view of the
above said decision of the Hon'ble Supreme Court of
India at Page 2201, the decision as relied by the learned
Counsel appearing for the defendant, is not made
applicable to the case on hand. However, in the above
said decision as relied by the learned Counsel appearing
for the defendants, it is observed that in the Mitakshari
48 OS No.3054/1987 & 2429/1991
Coparcenery properties, the testator can bequeath his
interest. Here, admittedly, both the ancestral and self-
acquired properties are involved in both the Wills and
therefore, in the coparcenery properties or in the
ancestral properties, H.Anjaneya Gowda should not have
executed the Will. So, for these reasons also, the
decision as relied by the learned Counsel appearing for
the defendants, is not made applicable to the case on
hand. Secondly, it is true as per the decision reported in
AIR 1959 SC 443, as relied by the learned Counsel
appearing for the plaintiff, the onus of proof is on the
propounder to prove the Will. But, while discussing, we
have already come to the conclusion that the
participation of the propounder or the beneficiary itself is
a strong circumstance to disbelieve the second Will
Ex.D.11. Therefore, the above said decision is not made
applicable to the case on hand. It is true as per the
decision reported in 1991(3) KLJ 188; AIR 2002 KAR 179,
as relied by the learned Counsel appearing for the
49 OS No.3054/1987 & 2429/1991
defendants, at least one of the attesting witnesses has to
be examined for proving the Will and further, it is not
necessary for the attesting witness to know the contents
of the Will. It is also true in this case the attesting
witness who is examined as DW.3 for proving the
execution of Ex.D.10 and D.11 do not know the contents.
But, in the decision reported in AIR 2002 KAR 179, the
testator himself wrote the Will in his own hand writing in
English language and therefore, the Lordship of our own
High Court of Karnataka, was pleased to observe that it
is not necessary for the attesting witness to know the
contents of the Will. However, in the case on hand, DW.3
not only is an attesting witness to Ex.D.11, but he is also
the scribe of Ex.D.10. Even then he does not know the
contents of Ex.D.10 & D.11. Further, when he has
participated as a scribe also to Ex.D.10, it was his duty
to know the contents of Ex.D.11 also, because, Ex.D.11
is not an independent documents, but on the other hand,
it is the continuation of Ex.D.10 and when DW.3 himself
50 OS No.3054/1987 & 2429/1991
is the scribe of Ex.D.10, certainly he ought to have
known the contents of Ex.D.11 also. However, he has
clearly admitted that at the request of the testator
H.Anjaneya Gowda, he signed both Ex.D.10 & D.11 as a
scribe as well as an attesting witness. So, he is under
the thumb of the testator H.Anjaneya Gowda, as we have
already come to the conclusion, his evidence cannot be
relied on and therefore, the above said two decisions are
also not made applicable to the case on hand.
8.12. The learned Counsel appearing for the
defendant has also relied on the decisions reported in AIR
2005 KAR 226; AIR 1976 Cal 377 and AIR 2005 SC 233,
wherein it has been observed that simply because major
portion of the property has been bequeathed in favour of
one of the sons and minor portions were bequeathed in
favour of other children, it will not be a ground to hold
that the Will is suspicious one. Further, in the decision
referred supra in AIR 1976 Cal 377, it has been held that
initial burden of proving the Will is upon the propounder
51 OS No.3054/1987 & 2429/1991
like any other document and it is also held in the
decision reported in AIR 2005 SC 233 that when the
testator was in a sound disposing state of mind, certainly
the revocation of earlier Will and execution of second Will
became valid. But, here, while discussing we have
already held that the participation of the propounder in
the execution of the second Will, itself is a strong
circumstance to create doubt over the execution of the
second Will including the Cancellation deed. Even while
discussing on the evidence of DW.3, we have already
come to the conclusion that his evidence is unreliable
and even at the time of execution of the earlier Will,
H.Anjaneya Gowda, was aged about 70years and he has
clearly stated in the earlier Will that due to his
deteriorating health condition, he is executing the Will
and at the time of execution of the second Will, he was
aged about 75 or 76 years. So, when the testator's health
condition was said to be deteriorating in the year 1969,
certainly his health condition must have been much
52 OS No.3054/1987 & 2429/1991
deteriorated in the year 1974 when the second Will
Ex.D.11 was executed. Therefore, we cannot hold that
the health condition including the mental condition of
the testator could be sound at the time of execution of
the second Will. Therefore, the above said decisions are
not made applicable to the case on hand. It is true as per
the provisions under Sec.67,68 and 69 of the Indian
Evidence Act, as relied on by the learned Counsel
appearing for the defendants, one of the attesting witness
DW.3 is examined for proving the document. But, while
discussing we have already come to the conclusion that
his evidence is unreliable. Therefore, the defendants have
not proved the document as required under Ss.67 to 69
of the Indian Evidence Act.
8.13. Further, the deceased defendant No.1 as minor
guardian of defendant Nos. 3 & 4, filed a suit OS
10146/1988 on the file of the City Civil Court, Bangalore
(CCH.18), against the present plaintiff for possession of
the item No.10 of the suit schedule 'A' property on the
53 OS No.3054/1987 & 2429/1991
basis of the Will Ex.D.11, as per Ex.P.6 and admittedly
that suit came to be dismissed. While filing the said suit
in para-5 of the plaint at Ex.P.6, it has been contended
that the properties involved in the Will in question are
the ancestral as well as the self-acquired properties.
Further, even in the present suit on hand also, the
deceased defendant No.1 who has filed his written
statement in suit OS 3054/1987, has not at all disputed
the nature of the suit schedule properties as some of
them are the ancestral and some of them are the self
acquired properties. So, it is clear and admitted fact of
both the sides that deceased H.Anjaneya Gowda has
executed a Will and bequeathed his ancestral properties
as well as the self acquired properties in both the Wills
Ex.D.9 and Ex.D.11. Therefore, according to me,
H.Anjaneya Gowda had no right to bequeath the
ancestral properties in favour of either of the parties.
Because, at the most he could have bequeathed his self-
acquired properties in favour of either of the parties. In
54 OS No.3054/1987 & 2429/1991
this regard, the ancestral properties are concerned, at the
most H.Anjaneya Gowda had to bequeath his interest in
the ancestral properties. Admittedly, there was no
partition between H.Anjaneya Gowda and his father in
the ancestral properties as averred in the plaint at
Ex.P.6. If so, H.Anjaneya Gowda absolutely had no right
to bequeath the entire ancestral properties in favour of
either of the parties. But, here, H.Anjaneya Gowda has
bequeathed his ancestral properties also vide Ex.D.9 &
D.11. So, for these reasons also, Ex.D.11 has also no
relevancy. The defendants may contend that in Ex.D.9
also ancestral properties are involved and therefore, it is
not admissible in evidence. But, it is an undisputed
document. However, even if we have come to the
conclusion that it is an undisputed document, even then
also Ex.D.9 earlier Will also cannot create any right or
interest over the suit schedule properties in favour of
plaintiff because, for bequeathing the ancestral
properties, H.Anjaneya Gowda had no right. So, even
55 OS No.3054/1987 & 2429/1991
though if we have come to the conclusion that the Will
Ex.D.11 has been proved by examining the attesting
witness as required by law and even the reasons are not
necessary to cancel the earlier Will, even then also
H.Anjaneya Gowda had no right to bequeath the
ancestral properties in favour of either of the parties.
Therefore, for these reasons also, Ex.D.11 does not create
any right, interest over the suit schedule properties in
favour of the defendants.
8.14. In para-5 of the plaint at Ex.P.6, the deceased
defendant No.1 has contended that there was an
endorsement on the Will Ex.D.9 in the hand writing of
H.Anjaneya Gowda, dated 17.6.1973 as he has cancelled
the said Will. In this regard, what the deceased
defendant No.1 has contended at para-5 of the plaint
Ex.P.6 is that the earlier Will executed at ex.D.9 has been
cancelled by H.Anjaneya Gowda by making an
endorsement in his own hand writing on 17.6.1973 in
the said Ex.D.9. So, here, on perusal of Ex.D.9, there is
56 OS No.3054/1987 & 2429/1991
an endorsement on the last page of Ex.D.9 and according
to defendants, it is an endorsement made by H.Anjaneya
Gowda on 17.6.1973 to the effect that he has cancelled
the said Will Ex.D.9. Further, as per para-5 of the plaint
Ex.P.6, the contents of the endorsement made at Ex.D.9
is that his two daughters plaintiff and defendant No.7 are
concerned, have to be paid Rs.50/- per month towards
'Arisina Kumkuma' and all the ancestral and self-
acquired properties of H.Anjaneya Gowda are bequeathed
to his sons and grand son Venkatesh. So, here, the
endorsement for the cancellation of the earlier Will itself
has been made on Ex.D.9 itself on 17.6.1973 as per
plaint para-5 at Ex.P.6. So, prior to the execution of the
Cancellation deed at Ex.D.10 on 17.,6.1973 itself
H.Anjaneya Gowda has made an endorsement for
cancellation of Ex.D.9 and that endorsement is in his
own hand writing at Ex.D.9 itself. As per the said
endorsement, the plaintiff and defendant No.7 are
entitled to Rs.50/- p.m., only towards 'Arisina Kumkuma'
57 OS No.3054/1987 & 2429/1991
and rest of the ancestral and self-acquired properties are
to be bequeathed in favour of son of H.Anjaneya Gowda
and grand son Venkatesh. So, here, according to para-5
of Ex.P.6, the intention of H.Anjaneya Gowda is to
bequeath all the ancestral and self-acquired properties in
faovur of his only son deceased defendant No.1 and
grand son venkatesh, who is the defendant No.3. But,
ultimately in Ex.D.11 the subsequent Will, the plaintiff
and defendant No.7 are also beneficiaries and further,
not only defendant No.3, but also defendant No.4 is also
beneficiaries, but deceased defendant No.1 is not a
beneficiary under Ex.D.11. Therefore, for these reasons
also, Ex.D.11 creates doubt over its voracity. But, looking
to the endorsement of H.Anjaneya Gowda on Ex.D.9 for
its cancellation, some of the portion is not visible as it
has been smudged by water. But, the contents of the said
endorsement has been incorporated in para-5 of the
Ex.P.6 by the deceased defendant No.1 himself. So,
according to para-5 of Ex.P.6, that endorsement made by
58 OS No.3054/1987 & 2429/1991
H.Anjaneya Gowda in Ex.D.9 for its cancellation was
made on 17.6.1973 iteslf. If so, there was no reasons for
H.Anjaneya Gowda to keep quite till 30.12.1974 nearly
for about one and half years to execute the Cancellation
deed Ex.D.10 and to execute the second Will Ex.D.11.
So, here, on 17.6.1973 itself H.Anjaneya Gowda has
expressed his intention for the cancellation of the earlier
Will Ex.D.9 by making an endorsement on the said Will
Ex.D.9 itself. In this regard, according to the deceased
defendant No.1, the recitals of said endorsement is that
the plaintiff and defendant No.7 are only entitled to
Rs.50/- p.m., towards 'Arisina Kumkuma' and rest of the
self-acquired and ancestral properties are to be
bequeathed in favour of defendant No.1 and defendant
No.3. If so, there was no reasons for H.Anjaneya Gowda
subsequently to execute separate Cancellation deed
including the second Will Ex.D.10 & Ex.D.11. So, for all
these reasons also, both Ex.D.10 & D.11 are not free
from doubt.
59 OS No.3054/1987 & 2429/1991
8.15. Ex.P.7 is the certified copy of the written
statement in OS 10146/1988 filed by the plaintiff of this
case to Ex.P.6 and we should not give much importance
to that document because she has denied the contents of
the plaint Ex.P.6. Ex.P.8 is the issues framed in the
above said suit and Exs.P.9 to P.14 are the property
extracts in the name of deceased defendant No.1. Ex.P.15
stands in the name of one Smt.Lakshmi and Ravindra.
Exs.P.16 to 18 are the records of rights in the name of
defendant No.2. Ex.P.19 is also record of rights
pertaining to the suit schedule properties and they are in
the name of H.Anjaneya Gowda and Ex.P.20 is also the
record of rights in the name of deceased defendant No.1.
But, when the plaintiff is also one of the legal heirs of
H.Anjaneya Gowda, certainly whatever the entries made
in the record of rights Ex.P.9 to P.20, have no relevancy
in this case. Ex.P.21 is the tax paid receipt in the name
of deceased defendant No.1. Ex.P.22 is the demand
notice issued by the KEB in favour of defendant No.3. It
60 OS No.3054/1987 & 2429/1991
is also not a document of title or possession over the suit
schedule property. Ex.P.23 is the copy of the notice
issued by the plaintiff to the defendant for demanding
partition in the suit schedule properties. It also further
corroborates the case of the plaintiff for effecting partition
in the suit schedule properties. Ex.P.24 is the order
passed in MFA No.2675/1998 against the Order passed
in the G&WC case and for that, we have already
discussed and held that the Order passed in G&WC case
does not come in the way of the plaintiff to claim her
legitimate share in the suit schedule properties. Ex.P.25
is the certified copy of the Order passed in IA No.2 in OS
3718/1996 wherein it has been filed by defendant Nos. 9
& 10 against the plaintiff of this case, for temporary
injunction and ultimately the temporary injunction order
issued earlier was vacated and therefore, it is clear that
the defendant Nos. 9 & 10 were not in lawful possession
of the suit schedule properties on the basis of the alleged
purchase made by them of item No.10 of the suit
61 OS No.3054/1987 & 2429/1991
schedule 'A' property and against the said Order, the
defendant Nos. 9 & 10 have preferred MFA
No.3175/1996 in Ex.P.26 wherein the Order passed in
that Ex.P.25 was confirmed. So, in this also, we have to
hold that the defendant Nos. 9 & 10 were not in lawful
possession of the suit schedule properties. Ex.P.27 is the
petition in HRC No.998/1992 filed by the defendant Nos.
9 & 10 against the present plaintiff, wherein the
defendant Nos.9 & 10 filed an application for eviction of
item No.10 of suit schedule 'A' properties. However, the
plaintiff has submitted no objection as per Ex.P.28. They
are also not helpful tot he defendants to show their
exclusive right over the suit schedule properties.
Ex.P.29 is the certified copy of the Writ Petition
No.2783/1992 on the file of the Hon'ble High Court of
Karnataka, wherein the plaintiff has challenged the
entries made in the records of rights in the name of
defendant No.1 and others. Ultimately that writ petition
was dismissed with an observation that the parties shall
62 OS No.3054/1987 & 2429/1991
govern their rights in accordance with the decree passed
in this suit. Therefore, looking to this order, it is clear
that whatever theentries made in Exs.P.9 to P.21, have
no base. Ex.P.30 is the certified copy of the order sheet in
the suit OS 10146/1988 and it pertains to Exs.P.6 & 7
and admittedly that suit was dismissed and Exs.P.31 &
32 rough sketch pertaining to the suit schedule
properties and they are not relevant to prove the title over
the suit schedule properties in favour of either of the
parties. Exs.P.33 & P.34 are the letters written by the
plaintiff to the defendant No.1 wherein the plaintiff
requested the deceased defendant No.1 to give alternative
house for her. Therefore, it is clear that the plaintiff had
requested the deceased defendant No.1 to make
alternative arrangement in lieu of her share in the suit
schedule properties. Therefore, the evidence of the
plaintiff who is examined as PW.1 including the
documents discussed already, are very clear that there
was no occasion for H.Anjaneya Gowda to execute the
63 OS No.3054/1987 & 2429/1991
second Will Ex.D.11, by canceling the earlier Will Ex.D.9.
Nothing has been elicited during the course of cross-
examination of PW.1. Therefore, in view of all these
reasons, I am of the opinion that the defendants have
failed to establish Exs.D.10 & D.11. Hence, I answer the
issue Nos.7 & 8 in OS 2429/1991 and the second part of
Issue No.2 in OS 3054/1987 against the defendants.
9. Issue No.6 in OS 2429/1991: Admittedly the
deceased defendant No.1has filed G&WC No.10039/1987
on behalf of his sons defendant Nos.3 & 4 on the file of III
Addl.City Civil Judge, Bangalore, for seeking permission
to sell the item No.10 of the suit schedule 'A' property in
favour of defendant Nos. 9 to 11. Accordingly that
petition was allowed and permission was granted to the
deceased defendant No.1 to sell the item No.10 of the suit
schedule 'A' property to defendant Nos. 9 to 11 for a sum
of Rs.17 Lakhs, as per Ex.D.3 and also it was ordered
that out of Rs.17Lakhs, Rs.6 Lakhs each has to be
deposited in the name of defendant Nos. 3 & 4 who are
64 OS No.3054/1987 & 2429/1991
minors then, in the nationalised bank and remaining
amount of Rs.5Lakhs has to be utilised for the welfare of
the minor defendant Nos. 3 & 4. In this regard, while
discussing on the evidence of DW.1 itself, himself and
defendant No.3 have already held that they have filed
and affidavit in the G&WC case, contending that they
have attained the age of majority and accordingly there is
no need to sell the suit schedule property. Further,
though the defendant Nos. 3 & 4 had attained the age of
majority, they have not at all participated in the sale deed
executed by the defendant No.1 in favour of defendant
Nos.9 to 11 in respect of the item No.10 of the suit
schedule 'A' property. So, when the defendant Nos. 3 & 4
themselves had attained the age of majority at the time of
filing the G&WC case, then that itself shows the
fraudulent act of defendant No.1 to seek permission
from the Court to sell the suit schedule property in
favour of the defendant Nos.9 to 11. However, ultimately
the Hon'ble High Court of Karnataka in MFA 2675/1988
65 OS No.3054/1987 & 2429/1991
has observed that the plaintiff is at liberty to agitate her
rights in the proceedings pending or proceedings to be
instituted hereinafter. So, even as per the observation of
the Hon'ble High Court of Karnataka, the plaintiff has got
a right over the suit schedule properties even after
passing the order in the G&WC case. However,
admittedly the G&WC case is the out come of the second
Will Ex.D.11 and when the second Will Ex.D.11 itself is
not genuine as we have already held, certainly the
G&WC is also not binding on the plaintiff. Moreover, the
deceased defendant No.1 was in the knowledge that
there was an earlier Will Ex.D.9 and in that Will the
plaintiff is also one of the beneficiaries and even in the
second Will also, she is one of the beneficiaries. Even
then, the deceased defendant No.1 has not at all made
the plaintiff as a party in the G&WC Case
No.10039/1987. Therefore, for these reasons also,
Ex.P.27 Order in G&WC No.10039/1987 is not binding
66 OS No.3054/1987 & 2429/1991
on the plaintiff. Hence, I answer this issue in favour of
the plaintiff.
10. Issue No.9 in OS 2429/1991 :- Admittedly, there
was no partition between the parties in the suit schedule
properties. Even there was no partition in the ancestral
properties between H.Anjaneya Gowda and his father.
But, the plaintiff has claimed the partition on the
strength of Ex.D.9. However, the defendants are making
a claim basing on the Ex.D.11. While discussing we have
already held that H.Anjaneya Gowda himself has no right
to bequeath the ancestral properties in both the Wills
and therefore, we have held that both the Wills have no
relevancy in this case to effect the partition in accordance
with Ex.D.9 or Ex.D.11. Therefore, there is no question of
limitation. Hence, I answer this issue against the
defendants.
11. Issue No.10 in OS 2429/1991 :- The defendants
have contended that the suit is not valued properly and
the Court fee paid is not sufficient. But, this being a suit
67 OS No.3054/1987 & 2429/1991
for partition and separate possession, the plaintiff has
valued the suit under Sec.35(2) of the Karnataka Court
Fee and Suit Valuation Act and paid the fixed Court fee
of Rs.200/- and therefore, this issue is held in favour of
the plaintiff.
12.Issue No.5 in OS 2429/1991 : - This issue has
been struck off, as per the Order sheet dated 7.1.2005.
13.Issue Nos. 1 & 3 in OS 3054/1987: I answer these
two issues at a stretch, as they are interlinked to one
another.
13.01. The defendants have contended that the suit
of the plaintiff without seeking a declaration of title over
the suit schedule property is not maintainable. In this
regard, admittedly some of the properties are the
ancestral properties of H.Anjaneya Gowda and some of
the properties are the self-acquired properties of
H.Anjaneya Gowda. So, as one of the legal heirs, the
plaintiff is also a co-owner or the co-sharer in the suit
schedule properties. However, when H.Anjaneya Gowda
68 OS No.3054/1987 & 2429/1991
himself has no right to execute the Will in respect of the
ancestral properties, certainly I am of the opinion that
the plaintiff became one of the co-owners or c-sharers of
the suit schedule properties, as a legal heir of deceased
H.Anjaneya Gowda. Hence, I answer these two issues in
favour of the plaintiff.
14.Issue Nos.4 & 5 in OS 3054/1987: I answer these
two issues at a stretch, as they are interlinked to one
another.
14.01. The plaintiff has sought the injunction in the
present suit against the defendants basing on the earlier
Will and according to the case of the plaintiff, as per
Ex.D.9 H.Anjaneya Gowda has bequeathed the out house
of the suit schedule 'A' property in her name. But, in the
present suit, what she has contended is that H.Anjaneya
Gowda has permitted her to reside in the suit schedule
'B' property of this suit and accordingly she started to
run a silk twisting industry in the suit schedule 'B'
property with the consent of H.Anjaneya Gowda and also
69 OS No.3054/1987 & 2429/1991
H.Anjaneya Gowda has permitted the plaintiff to collect
the rent from the suit schedule 'A' property from the
tenants and accordingly she is collecting the rents from
suit schedule 'A' property. Therefore, the claim of the
plaintiff for issuing injunction is concerned, is not only
basing on the earlier Will Ex.D.9 but also basing on the
oral authorisation given by H.Anjaneya Gowda to the
plaintiff in respect of A & B schedule properties also.
Further, with regard to the agricultural properties
involved in these suits are concerned, admittedly
according to Ex.D.9, the plaintiff,defendant No.1 & 7 are
having equal share. So, considering this aspect, it is very
clear that the plaintiff is only co-sharer and a co-owner of
the other agricultural properties also. Therefore, the
question of her exclusive or lawful possession including
juridical possession over the suit schedule properties by
the plaintiff, does not arise and therefore, as a co-owner
the plaintiff is not entitled to injunction against another
co-owners, who are the deceased defendant No.1 &
70 OS No.3054/1987 & 2429/1991
defendant No.7, and after their death, their LRs. Hence, I
answer these Issue Nos. 4&5 against the plaintiff.
15. Issue Nos. 2 & 11 in OS 2429/1991: The plaintiff
has sought for partition of her 1/3rd share in the suit
schedule 'A' property including 1/3rd share in the 'C'
schedule property. Here, the claim of the plaintiff for
partition in the suit schedule A& C properties are
concerned, is basing on the earlier Will Ex.D.9. While
discussing, we have already come to the conclusion that
the earlier Will has also no relevancy because H.Anjaneya
Gowda has no right to bequeath the ancestral properties.
Further, even it is not the case of the defendants also
that all the suit schedule properties are the self-acquired
properties of the deceased H.Anjaneya Gowda. Therefore,
the question of presumption with regard to the joint
property as observed in the decision reported in AIR
1994 Himachal Pradesh 144 and AIR 1969 SC 1076 as
relied on by the learned Counsel appearing for the
plaintiff, is not made applicable to the case on hand.
71 OS No.3054/1987 & 2429/1991
15.02. The learned Counsel appearing for the
plaintiff by relying on the decision reported in AIR 2000
NOC 20, has contended that the Ex.D.9 is more than
30years old document and therefore, it has got its
presumptive value and the same may be considered as a
genuine Will. If we consider the Ex.D.9 as an old
document, certainly we have to apply the same principles
to Ex.D.11 also. But, however, when H.Anjaneya Gowda
has no right to bequeath the ancestral properties in
favour of either of the parties, in the Will Ex.D.9 or D.11,
and this proposition of law is also admitted by the
learned Counsel appearing for the plaintiff during the
course of argument. Hence, we should not apply the
presumption involved in the above said decision to
Ex.D.9 & D.11. Here, H.Anjaneya Gowda died leaving
behind him the plaintiff, deceased defendant No.1 and 7
as his legal heirs and therefore, we have to divide the suit
schedule properties as per the decision reported in AIR
1975 Madras Page 131, as relied on by the learned
72 OS No.3054/1987 & 2429/1991
Counsel appearing for the plaintiff. The learned Counsel
appearing for the plaintiff has also relied on the decisions
reported in AIR 1965 Madras 705; AIR 1963 AP 305; AIR
1993 KAR 148 and AIR 1986 SC 79 and contended that
the ancestral properties became the joint family property
and therefore, the single member has no right to alienate
the same. So, in view of the above said decisions, it is
held that the ancestral properties in the hands of sole
coparcener, becomes the joint family properties and
accordingly it is held that they are the ancestral
properties. Here, H.Anjaneya Gowda was the sole
coparcener of the suit schedule properties. Some of them
are the ancestral properties and with regard to the
execution of the Will in respect of the ancestral properties
and self-acquired properties, I have already held that the
Wills are not proved. So, it is clear that immediately after
the death of the sole coparcener H.Anjaneya Gowda, all
the suit schedule properties became the joint family
properties of plaintiff, deceased defendant Nos. 1 & 7.
73 OS No.3054/1987 & 2429/1991
Therefore, the plaintiff is not entitled to the partition and
separate possession in schedule A & C properties as per
earlier Will Ex.D.9. Because all the suit schedule
properties became the joint family properties of the
plaintiff and deceased defendant Nos. 1 & 7 immediately
after the death of sole coparcener H.Anjaneya Gowda.
15.03. So, now we have to go for the general
partition. Because, when both Ex.D.9 & D.11 are not in
existence, certainly it remains that the suit schedule
properties are the joint family properties of the plaintiff
and defendants as we have already discussed. It is true
for the general partition is concerned, there is no prayer
of the plaintiff or there is no pleadings of the plaintiff that
in case the partition cannot be effected conveniently
basing on the Will Ex.D.9, general partition can be
effected, as required under Order 6 Rule 4 CPC, as relied
on by the learned Counsel appearing for the defendants.
But, admittedly, as per the decision reported in 1994(2)
SCC 594 as relied by the learned Counsel appearing for
74 OS No.3054/1987 & 2429/1991
the plaintiff, the Court has ample power to mould the
relief. So, here, even in the absence of specific prayer for
the general partition, even then in view of the above said
decision of the Hon'ble Supreme court of India, the Court
can mould the relief for granting justice to the parties.
Therefore, in view of the above said decision of the
Hon'ble Supreme Court of India, we have to effect the
general partition. In this regard, the learned Counsel
appearing for defendants by relying on Sec.6 of Hindu
Law-Intestate Succession-S.V.Gupta-III Edition 1991(2)
and also as per the provisions under Sec.6 of Hindu
Succession Act, 1956 and under Sec.30 of Hindu
Succession Act,1956 -Testamentary Succession, has
contended that when a male Hindu died after the
commencement of this Act, having at the time of death
an intestate any Mitakshari coparcenery property, his
interest in the property shall devolve upon the surviving
members of the coparcenery and not in accordance with
the Hindu Succession Act or intestate Succession. But,
75 OS No.3054/1987 & 2429/1991
here, as against this, the learned Counsel appearing for
the plaintiff has relied on the decision reported in 1991(3)
SCC 647, wherein the Hon'ble Supreme Court of India
has held that the partition can be effected by metes and
bounds between the female members also as on the date
of the passing the final decree. So, here, we have to
effect the partition as per the Hindu Succession Act, in
view of the said decision of the Hon'ble Supreme Court of
India. Therefore, the above provisions of Law are not
made applicable to the case on hand, in view of the above
said decisions of the Hon'ble Supreme Court of India.
However, admittedly, as per the Hindu
Succession(Amendment) Act, 2005,(Central Act), as relied
by the learned Counsel appearing for the plaintiff, under
Sec.6, even the females are also entitled to equal share.
It is true as per the State Act, the Hindu female is
entitled to equal share with sons if her marriage has
taken place after 1994. But, the Central Act prevails the
State Act and therefore, I am of the opinion that
76 OS No.3054/1987 & 2429/1991
according to Hindu Succession(Amendment)Act 2005,
the plaintiff is entitled to equal share i.e., 1/3rd share in
all the suit schedule properties. So, in view of all these
reasons, the plaintiff is entitled to 1/3rd share in all the
suit schedule properties and its separate possession.
15.04. Now, coming to the claim of the defendant
Nos. 8 to 11 are concerned, admittedly the defendant
No.8 is the purchaser of item No.1 of the suit schedule 'A'
property and defendant Nos.9 to 11 are the purchasers of
the item No.10(I & II) of the suit schedule 'A' properties
from the deceased defendant No.1. Here, the defendant
No.8 though was served with suit summons, he did not
turn up and therefore, he is not at all put his defence
before the Court and hence, it is very difficult to consider
the claim of defendant No.8 in respect of item No.1 of the
suit schedule 'A' property. Coming to the claim of
defendant Nos. 9 to 11 is concerned, they have filed the
written statement but however, they have admitted the
contents of the written statement filed by the defendant
77 OS No.3054/1987 & 2429/1991
Nos. 2 to 6 and they have not at all made any separate
defence before the Court that they are the bonafide
purchasers of the suit schedule property with valuable
consideration without notice. But, on the other hand, the
claim is also basing on the subsquent Will executed by
H.Anjaneya Gowda. So, when the subsequent Will itself
became unreliable document, consequently the
subsequent transactions held basing on that Will, cannot
be looked into. Further, they have not at all claimed that
if in case the Court comes to the conclusion that the
partition can be effected, in that event, their share has to
be allotted in the share allotted to defendant Nos. 2 to 6
and therefore, in the absence of any specific defence
made by the defendant Nos. 9 to 11, it is very difficult to
protect their alleged possession over the item No.10(I &
II) of the suit schedule 'A' property.Further, while
discussing we have already come to the conclusion that
when the defendant Nos. 3& 4 who are the beneficiaries
under Ex.D.11 attained the age of majority as per the
78 OS No.3054/1987 & 2429/1991
evidence of DW.1, certainly the deceased defendant No.1
ought not to have sold the suit schedule properties
without the consent of defendant Nos. 3 & 4. Therefore,
that alienation itself is without any base and therefore, I
am of the opinion that it is needless on my part to state
that we have to protect the alleged possession of the
defendant Nos. 9 to 11 over the item No.10 of the suit
schedule 'A' property. However, we have already held that
the plaintiff is entitled to 1/3rd share in all the suit
schedule properties and its separate possession. Hence,
I answer these two issues accordingly.
16. Issue No.3 in OS 2429/1991: The plaintiff has
contended that if it is not possible to effect the partition
by metes and bounds in the suit schedule properties, she
has sought to award the valuation of her 1/3rd share by
putting the suit schedule properties in public auction. In
this regard, according to me, this question does not arise
at this stage. Because, still we are in the preliminary
stage and that question would be considered at the most,
79 OS No.3054/1987 & 2429/1991
while at the time of execution of the decree. Therefore,
the above said issue No.3 is closed at this stage, subject
to consideration during the course of execution of the
decree, if necessary. Hence, I answer Issue No.3
accordingly.
17. Issue No.4 in suit OS 2429/1991: The plaintiff has
sought to award the mesne profits of her share. But, on
perusal of the plaint pleadings of the suit OS 3054/1987
including the present suit, she has contended that she is
in possession of the suit schedule A & B properties, as
shown in the suit OS 3054/1987 and also it is her case
that she is collecting the rents from the tenants
pertaining to suit schedule 'A' property in suit OS
3054/1987. Therefore, it is clear according to the
plaintiff that she is in possession of some of the
properties and deriving benefits. However, on perusal of
the Valuation slip, the plaintiff has paid the court fee of
Rs.200/- as provided under Sec.35(2) of the Karnataka
Suit Valuation & Court Fee Act and it deals with the joint
80 OS No.3054/1987 & 2429/1991
possession. So, when she is in joint possession, certainly
the plaintiff is not entitled to mesne profits. Hence, I
answer this issue against the plaintiff.
18. Issue No.6 in OS 3054/1987 & Issue No.12 in suit
OS 2429/1991: Here, in this case, admittedly during the
pendency of the suit OS 2429/1991, the defendant Nos.
1 & 7 died. Accordingly the LRs of defendant No.7 were
brought on record. But, the LRs of defendant No.1 were
already on record and the plaint cause title has been
amended. However, at the time of filing of the suit, the
defendant Nos.4 to 6 were the minors and defendant
No.1 was the father and natural guardian of defendant
Nos. 4 to 6. Thereafter, the defendant Nos. 4 & 5
attained the age of majority and after the death of
defendant No.1, the natural guardian of defendant No.6
was changed as defendant No.2 Smt.Yashodamma and
for that also the plaint cause title has been amended and
the amended plaint has been filed by the plaintiff and in
that amended plaint, again defendant No.4 to 6 are
81 OS No.3054/1987 & 2429/1991
shown as minors though defendant defendant No.4 & 5
have attained the age of majority and again for defendant
No.6, dead person-defendant No.1 continued as
guardian. Further, both the cause title sheets of the
original plaint and amended plaint are completely torn
and therefore, this Court directed the plaintiff to furnish
fresh plaint when the case was fixed on 29.10.2007 and
ultimately it was adjourned till 31.10.2007. On
31.10.2007 the learned Counsel appearing for the
plaintiff submitted that the plaint runs upto 90pages and
therefore, needs time for typing and accordingly
requested one week and therefore, time was granted upto
13.11.2007 and on that day also, the plaint was not filed.
This act of the plaintiff has caused much inconvenience
to the court proceedings and therefore, heavy cost is to
be imposed on the plaintiff. Therefore, plaintiff shall have
to pay the cost of Rs.5,000/- and ultimately credited to
the State. But, however, ultimately, it is the duty of the
Court to dispose off the case on merit. Accordingly, I have
82 OS No.3054/1987 & 2429/1991
disposed of this case on merits. In the result of the
foregoing discussions on all the above issues, I proceed to
pass the following:
ORDER
The suit of the plaintiff in OS 3054/1987 is hereby dismissed.
But, the plaintiff is entitled to 1/3rd share in all the suit schedule properties involved in suit OS 2429/1991 and its separate possession.
The partition can be effected in item Nos. 1 to 6 of suit schedule 'A' properties as per the provisions under Sec.54 of CPC. Similarly partition can be effected in Item Nos. 7 to 10(I & II) of suit schedule 'A' and 'B' to 'E' properties by appointing the Court Commissioner. Hence, the suit OS 2429/1991 is hereby decreed.
Taking into consideration the relationship between the parties, I direct them to bear their own costs.
Draw preliminary decree accordingly.
83 OS No.3054/1987 & 2429/1991But, for non-production of the amendment plaint, the plaintiff shall the cost of Rs.5,000/- to the State.
Decree shall be drawn on payment of cost and after production of amended plaint by the plaintiff.
Copy of this Judgment shall be kept in the suit OS 2429/1991.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open Court on this the 16th day of November, 2007).
(BHIMAPPA G. JATTENNAVAR), I Addl. City Civil & Sessions Judge, Bangalore.
SCHEDULE-A IN O.S.3054/1987 The house property containing standing structures including the B schedule house (where plaintiff is residing with her family and having her silk factory) and C schedule house property (which is bequeathed to the plaintiff by her father vide his Will dated 8.1.1969 measuring east west 75feet and north south 36feet and situated at No.J-8, R.K.Puram, S.C.Road, Bangalore-9, comprised by the letters A B C Defendant in the rough sketch No.1 and bounded by :
East : Cross road and then DMM foundry buildings West : Corporation conservancy land and then excel bar buildings, North : House property of Smt. Lakshmi Bai South : House property of Sri. Gopalappa SCHEDULE-B IN O.S.3054/1987 RCC structured house builidng measuring east west 10ft., and north south 28ft., shown in red colour in rough sketch No.1 84 OS No.3054/1987 & 2429/1991 forming the western part of main RCC building and forming part of the A schedule property viz. No.J-28, R.K.Puram, S.C.Road, Bangalore -9, comprised by the letters I N O M in the rough sketch No.1 bounded by the :
East : Part of the main building of the house property No.J-28, R.K.Puram, S.C.Road, Bangalore-9 West : The passage of five ft. then, C schedule property forming part of A schedule property viz., No.J-28, R.K.Puram, S.C.Road, Bangalore-9 North : The passage in the northern part of A schedule property viz., No.J-28, R.K.Puram, S.C.Road, Bangalore-9 and then House property of Smt.Lakshmi Bai, South : The passage in the southern part of the A schedule property viz. No.J-28, R.K.Puram, S.C.Road, Bangalore-9 and then House property of Sri. Gopalappa and situated at No.J-28, R.K.Puram, S.C.Road, Bangalore-9, where the plaintiff is living and having her silk factory worth Rs.50,000/- worth of machinery.
SCHEDULE-C IN O.S.3054/1987 The house building property measuring east west 25ft., and north south 36feet, comprised by the letters A F1 G1 Defendant and shown in the blue colour in the rough sketch No.1 situated at and forming the western out house portion of the A schedule property situated at No.J-28,R.K.Puram, S.C.Road, Bangalore-9 and bounded on the :
East by : Passage of 5ft and then B schedule house under occupation of the plaintiff and forming part of A schedule property viz., No.J-28, R.K.Puram, S.C.Road, Bangalore-9;
West by : Corporation conservancy got by lease by late H.Anjaneya Gowda and then running conservancy lane and then house property of excel bar buildings.
North by : House property of Smt. Lakshmi Bai South by : House property of Sri. Gopalappa situated at No.J-
28, R.K.Puram, S.C.Road, Bangalore-9.85 OS No.3054/1987 & 2429/1991
SCHEDULE-D IN O.S.3054/1987 The house building property measuring east west 30ft., and north south 28feet, situated at No.J-28,R.K.Puram, S.C.Road, Bangalore-9 and bounded on the :
East by : Passage of the same building of J-28, R.K.Puram, S.C.Road, Bangalore-9 and then M.M.type foundry buildings.
West by : Passage of same building and then C schedule house forming part of the A schedule viz., No.J-28, R.K.Puram, S.C.Road, Bangalore-9;
North by : Passage of 5ft., in thenorthern part of A schedule property for going into C schedule house and the house property of Smt.Lakshmi Bai South by : Passage of 5ft., in the southern part of A schedule property and then house property of Sri. Gopalappa situated at No.J-28, R.K.Puram, S.C.Road, Bangalore-9 SCHEDULE-E IN O.S.3054/1987
1. Agricultural wet land measuring OA-31gs. Assessment Rs.4.00 bearing S.No.55/10 bounded in the East: wet lands of Rajanna, Narayana Gowda and Penganna;
West: Wet land of Munideannanavara, Narayanappa; North : Wet land of Subbanna of Jala;
South : Land of Papayya S/o Hanumanthappa of Yelahanka.
2. Garden land measuring 2acres 33guntas bearing S.No.85/9 asessment Rs.3.20 containing a well and I.P. set and bounded by :
East: Way to wet lands and Government major Channel West: Lands of Shantha veera Gowda Hanumanthaia and path way to this item of Sy.No.85/9. North : Land of Subbanna of Jala South : Land of Ananthaswamy
3. Agricultural land measuring 2acres 39guntas bearing S.No.87/1, assessment Rs.2.50 bounded on the :
East: Gunduthopy and Halle leading to tank 86 OS No.3054/1987 & 2429/1991 West: Agricultural land of Sri.H.Anjaneya Gowda i.e., father Of plaintiff and defendant bearing S.No.90/6B. North : Dry land of Byre Gowda South : Land of Doddasonnappa, Ananthaswamy and Nanjundappa.
4. Dry land measuring 1acres 21 guntas bearing S.No.90/6B assessment Rs.1.50plaintiff bounded on the :
East: Land belong to the same item No.10 of the suit schedule 'A' property bearing S.No.87/1. West: Land of Shantha Veeregowda North : Land of SMt. Munithayi;
South : Land of Hanumaiah
5. Wet land called Hosagadde measuring 30guntas bearing S.No.82/7, assessment Rs.4.50p. bounded on the :
East: Land of Amrutha Hally Munivenkatappa West: Inamathi land of Sri. Kadumalleswara Diety North : Land of Yelahanka Mosque South : Land of S.No.82 of tank bed.
6. Dry land measuring 20guntas containing 5 tamarind trees forming part of land bearing S.No.104/1, containing 7 tamarind trees and 5 honge trees bounded on the :
East by : Government land of S.No.104/1 West by : Land of Aerodrum - Air force, North by : Government land of S.No.104/1 & Halle South by : Lands of K.V.Jayaram and K.V.Byregowda
7. House property measuring east west 120ft., and North south 64feet, pertaining to gramatana of Jakkur, Panchathi Khata No.49 house list No.57, assessment Rs.16.00 containing a dwelling house building structure and two sheds for tethering the she buffeloes and cattle, having a gate door facing west and bounded on the :
East by : Panchayati road West by : Road leading to contonerment, North by : Panchayath road South by : Conservancy road and water lifting well and Trees such as mango, coconut, guava fruit bearing trees.87 OS No.3054/1987 & 2429/1991
8. Gramatana land bearing house list no.95 Panchayath assessment Rs.2 containing ASWATHAKATTE with NAGARAKALLUR Diaties, built and installed and marriage cremonies performed by Sri.H.Anjaneya Gowda, situated at Jakkur, bounded on the :
East by : Way passing from Bangalore side into the Jakkur village in gramatana land; West by : Hithalu-back yard land of Hanumayya and Jayaram, S/o Hebbalada Byrappa;
North by : Building built by social welfare centre people of Jakkur;
south by : Path way from main road to the house of Hanumayya.
9. Three items vacant house sites in the gramatana of Jakkur and situated in the inside portion of Jakkur, which Sri.H.Anjaneya Gowda had purchased from Sri. Munikempanna and Munibyrappa and bearing house list No.17 and being used as Hithalu, bounded in the :
For first plot:
East : land of Ananthaswamy West: land of Ananthaswamy North : land of Ananthaswamy South : the dilapidated God's land of Ananthaswamy For second plot:
East : with a pomegranate tree, swee water well and parth way to tamarind trees and three and pathway. West: The Hithalu of Doddapappanna North : Hithalu of Ananthaswamy and a pending Ananthasway tamarind tree.
South : the dilapidated and deserted vacant land God's land of Ananthaswamy For third plot:
East : land of hithalu of late Ramanna West: Hithalu land of Yelahanka Papaiah North : land of Shanbhog Inamathi Survey number South : Hithalu land of Ananthaswamy gowda.
The items of properties from item No.1 to item No.9, of this 'E' schedule are situated at Jakkur village, Yelahanka Hobli, Bangalore North Taluk.88 OS No.3054/1987 & 2429/1991
10. The house building structure standing and situated at J.28, R.K.Puram, S.C.Road, Bangalore-9, measuring east west 75ft. and north south 36ft., (containing A, B and C items of suit schedule properties, in part of which at B schedule the plaintiff is residing with her silk twisting factory bounded in the :
East : Cross road West : Conservancy road measuring east west 6ft., north south 36ft., got by late H.Anjaneya Gowda on lease for 99years, from City Corporation and then remaining conservancy lane and then house properties of excel bar buildings, North : House properties of SMt.Lakshmi Bai South : House properties of Sri. Gopalappa, situated at No.J-28, R.K.Puram, S.C.Road, Bangalore-9.
SCHEDULE-A IN O.S.2429/1991
1. Agricultural wet land bearing S.No.55/10 measuring OA-31gs.
Having Assessment Rs.4.00, sxituated at Jakkur, Yalahanka Hobaly, Bangalore North Taluk, bounded in the :
East: wet lands of Rajanna, Narayana Gowda and Penganna;
West: Wet land of Munideannanavara, Narayanappa; North : Wet land of Subbanna of Jala; South : Land of Papayya S/o Hanumanthappa of Yelahanka.
2. Dry land but being used as Garden land bearing S.No.85/9 measuring 2acres 33guntas, assessment Rs.3.20, containing a stone rivetted well of the depth of about 42ft. to 48ft., installed with the I.P. set being used to grow the vegetables, coconut garden and cheap garden, situated at Jakkur, Yalahanka Hbali, Bangalore North Taluk, and bounded by :
East: major Channel or Raja kaluve going to wet lands and Government major raja kaluve channel. West: Lands of Shantha veera Gowda Hanumanthaia and path way to this item of Sy.No.85/9.
North : Land of Subbanna of Jala South : Land of Ananthaswamy 89 OS No.3054/1987 & 2429/1991
3. Dry land bearing S.No.87/1, measuring 2acres 39guntas bearing assessment Rs.2.50 situated at Jakkur, Yalahanka Hobaly, Bangalore North Taluk, bounded on the :
East: Gunduthopu and Halla leading to tank West: Agricultural land of Sri.H.Anjaneya Gowda i.e., father Of plaintiff and defendant bearing S.No.90/6B. North : Dry land of Byre Gowda South : Land of Doddasonnappa, Ananthaswamy and Nanjundappa.
4. Dry land measuring 1acres 21 guntas bearing S.No.90/6B assessment Rs.1.50p, situated at Jakkur, Yalahanka Hobaly, Bangalore North Taluk, bounded on the :
East: Land belong to the same S.No.87/1. West: Land of Shantha Veeregowda North : Land of SMt. Munithayi;
South : Land of Hanumaiah
5. Wet land called Hosagadde measuring 30guntas bearing S.No.82/7, assessment Rs.4.50p. situated at Jakkur, Yalahanka Hobaly, Bangalore North Taluk, bounded on the :
East: Land of Amrutha Hally Munivenkatappa West: Inamathi land of Sri. Kadumalleswara Diety North : Land of Yelahanka Mosque South : Land of S.No.82 of tank bed.
6. Dry land measuring 20guntas containing 5 tamarind trees forming part of land bearing S.No.104/1, situated at Jakkur, Yalahanka Hobaly, Bangalore North Taluk,containing 7 tamarind trees and 5 honge trees bounded on the :
East by : Government land of S.No.104/1 West by : Land of Aerodrum - Air force, North by : Government land of S.No.104/1 & Halla South by : Lands of K.V.Jayaram and K.V.Byregowda Since deceased by his son Ravi.
7. House property measuring east west 120ft., and North south 64feet, pertaining to gramatana of Jakkur, Panchathi Khata No.49 house list No.57, assessment Rs.16.00 containing a dwelling house building structure and two sheds for tethering the buffaloes and 90 OS No.3054/1987 & 2429/1991 cattle, having a gate door facing west and situated at Jakkur, Yalahanka Hobaly, Bangalore North Taluk,, and bounded on the :
East by : Panchayati road West by : Road leading to contonerment, North by : Panchayath road South by : Conservancy road and water lifting well and Trees such as mango, coconut, guava fruit bearing trees.
8. Gramatana land bearing house list no.95 Panchayath assessment Rs.2 containing ASWATHAKATTE with NAGARAKALLUR Diaties, built and installed and marriage ceremonies performed by Sri.H.Anjaneya Gowda, situated at Jakkur, Yalahanka Hobaly, Bangalore North Taluk, and bounded on the :
East by : Way passing from Bangalore side into the Jakkur village in gramatana land;
West by : Hithalu-back yard land of Hanumayya and Jayaram, S/o Hebbalada Byrappa;
North by : Building built by social welfare centre people of Jakkur;
south by : Path way from main road to the house of Hanumayya.
9. Three items vacant house sites bearing house list No.17 contiguously situated at Gramatana of Jakkur, Yalahanka Hobaly, Bangalore North Taluk and being used as Hithalu, and which Sri. Late H.Anjaneya Gowda had purchased from Sri. Muni Kempanna and Munibyrappa and containing different boundaries for three items situated adjointly such as :
For first plot:
East : land of Ananthaswamy West: land of Ananthaswamy North : land of Ananthaswamy South : the dilapidated house plot pertaining to Ananthaswamy pertaining to community God of the dynasty of H.Anjaneya Gowda, the land where there was a house.
For second plot: containing a pamograntate plant.
East : water well and path way to tamarind trees West: The Hithalu land pertaining to Dodda Appanna and 91 OS No.3054/1987 & 2429/1991 the path way leading to the Hithalu land of papayya. North : Hithalu land pertaining to Ananthaswamy and a tamarind tree in pendency (Amanath). South : the dilapidated and deserted vacant house site land and hithalu land pertaining to Ananthaswamy For third plot:
East : land of hithalu of late Ramanna West: Hithalu land of Yelahanka Papaiah North :Assessed survey numbered Shanbhog Inamathi South : Hithalu land of Ananthaswamy gowda.
10(i).)All part and parcel of the house property containing building structure partly made of cement reinforced concrete moulded roof in the eastern portion and partly made of cement reinforced walls with tiled and asbestos roof in the western portion containing the buildings made of cement reinforced walls with asbestos sheeted roof, situated at J.28, R.K.Puram, S.C.Road, Gandhinagar, Corporatin Division, Bangalore-9, measuring east west 75ft. and north south 36ft., comprised by the place demarcated by the letters ABCD in the rought sketch and bounded on the :
East : Cross road and towards east abutting DMM type Foundry buildings.
West : Corporation Conservancy road spot leased for 99years to plaintiff's late father Sri. H.Anjaneya Gowda (the suit schedule item No.10(ii) land to be stated just intra). North : House properties of SMt.Lakshmi Bai South : House properties of Sri. Gopalappa.
10(ii). The vacant land forming the municipal conservancy lane, situated in between the house property of No.J-28, 2nd cross, R.K.Puram, S.C.Road, Bangalore-9 and Excel Bar buildings, measuring east west 6ft., and north south 36ft., comprised by the place demarcated by the letters D1A1AD in the rough sketch No.1 and bounded in the :
East by : The suit schedule 10(I) of A schedule stated just supra of J.28, R.K.Puram, S.C.Road, Gandhinagar, Corporatin Division, Bangalore-9, Gandhinagar Corporation Division;
West by : The Excel Bar buildings North by: The remaining portion of conservancy lane more And above 36ft., leased to Sri. Late 92 OS No.3054/1987 & 2429/1991 H.Anjaneya Gowda.
South by : The remaining portion of the conservancy land And more and above 36ft., leased to to Sri. Late H.Anjaneya Gowda.
SCHEDULE -B IN OS 2429/1991 (In the occupation of plaintiff since 1973) All the part and parcel of the house property built of cement reinforced concrete measuring east west 10ft and north south 28ft, forming the part of the suit item No.10(I) of A schedule house situated at No.J-28, 2nd cross, R.K.Puram, S.C.Road, Bangalore-9, and comprised by the place demarcated by the letters MINO and bounded in the :
East : The house property of Defendant schedule house bequeathed to defendant No.1 A.Srinivasa Murthy and forming part of house at No.J-28, R.K.Puram, S.C.Road, Bangalore-9.
West : Passage of six feet breadth which is the eastern part of the same house bequeahed to the plaintiff in the will executed by her father on 8.1.69.
North : The six feet breadth passage passing from second cross road to the portion of the same house bequeathed to the plaintiff by her father in his Will dated 9.1.69. South : The two feet breadth common pasage coming form Defendant schedule house bequeathed to defendant No.1 A.Srinivasa Murthy.
SCHEDULE-C IN OS 2429/1991 (Bequeathed to plaintiff in the Will dated 8.1.69 in the occupation of the plaintiff since October,1988) All the part and parcel of house property made of partly tiled roof and partly of asbestos roof, measuring East West 31ft., and north south 34ft., comprised by the place demarcated by the letters HAI1M in the suit rough sketch No.1 annexed to the plaint and forming the Western half of the house of suit item No.10(1) of A schedule properties and situated at No.J-28, 2nd cross, R.K.Puram, S.C.Road, Bangalore-9 and bounded on the :93 OS No.3054/1987 & 2429/1991
East : Portion of Defendant schedule house bequeathed to the defendant No.1 A.Srinivasa Murthy out of the house at item No.10(1) of A suit property in the Will dated 8.1.69 executed by plaintiff's late father Sri. H.Anjaneya Gowda. West: The conservancy vacant land got in lease from Bangalore City Municipal Corporation by Sri. Late H.Anjaneya Gowda i.e, the suit item No.10(ii) of A suit property. North: The house property of Smt.Lakshmi Bai South : The 2ft., breadth common passage meant for the purpose of the A.Srinivasa Murthy the Defendant schedule holder to go to the latrine at the south west corner of suit item No.10(1) of A suit property and for the plaintiff to walk and move for the better enjoyment of the C schedule house.
SCHEDULE -D IN OS 2429/1991 All the part and parcel of the house property made of cement concrete mould measuring east west 44ft., north south 30ft., comprised by the place demarcated by the letters M11BC in the rough sketch No.1 annexed to the plaint, forming about the eastern half of the house at suit item No.10(1) of A schedule house situated at No.J-28, 2nd cross, R.K.Puram, S.C.Road, Bangalore-9, and bounded on the :
East : Second cross road West: Six feet passage and then the parly tiled and partly asbestos sheeted reinforced cement concerete built C schedule house bequeathed to the plaintiff Smt. A.Venkateshamma in the Will dt. 8.1.69 executed by her late father Sri.H.Anjaneya Gowda.
North: The 6ft. breadth passage spot meant for going and coming into the C schedule house bequeathed to the plaintiff by her father in the Will of her father dated 8.1.69 and then abutting the house property of SMt.Lakshmi Bai. South : The 2ft., breadth common passage meant to go to the latrine at the south west corner of suit item No.10(1) of A suit property and then abutting the house property of Sri.Gopaolappa.94 OS No.3054/1987 & 2429/1991
SCHEDULE-E IN OS 2429/1991 All part and parcel of the house property, containing two houses (including the vacant space in the east of the said houses) made of cement concrete built of walls and asbestos sheeted roofed houses, forming the 1st floor of the standing structures made of cement reinforced concrete moulding and measuring east west 30ft. and north south 28ft., and which form part of the house property of Defendant schedule bequeathed to the defendant No.1 Sri.A.Srinivasa Murthy and comprised by the place demarcated by letters MIJJ1 and situated at J-28, 2nd cross, R.K.Puram, S.C.Road, Bangalore-9, and bounded on the :
East : The 14ft. breadth passage forming the eastern part of the Defendant schedule property and then abutting the second cross road.
West : The six feet passage forming part of the C schedule house bequeathed to SMt.A.Venkateshamma the plaintiff in the Will dated 8.1.69 of her later father Sri. H.Anjaneya Gowda.
North : The 6ft. breadth passage land to go to the C schedule house bequeathed to the plaintiff in the Will dated 8.1.69 of her late father and in then the house property of SMt.Lakshmi Bai.
South : The two feet common passage meant for going to the latrine situated at item No.10(1) of A suit property and in then the house property of Gopalappa.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:
PW.1 Smt. Venkateshamma LIST OF DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P-1 Certified copy of Will dated 8.1.196
" P-2 Index of land
" P-3 & 4 Record of rights
" P-5 Demand register extract
" P-6 Certified copy of plaint in O.S.No. 10146/1988
" P-7 Certified copy of written statement in O.S.No.
10146/1988
95 OS No.3054/1987 & 2429/1991
" P-8 Certified copy of Issues in O.S.No. 10146/1988
" P-9 to 20 Record of rights
" P-21 Cash bill
" P-22 KEB application
" P-23 Notice dated 25.5.1987
" P-24 Certified copy of order in MFA 2675/1988 dated.
2.1.1991
" P-25 Certified copy of Orders on I.A. No.11 in O.S.No.
3718/1996 Dated. 10.7.1996
" P-26 Certified copy of Judgment in MFA 3175/1996
" P-27 Certified copy of compromise petition in HRC
998/1992
" P-28 Certified copy of Memo in HRC 998/1992 Dated
17.6.1998
" P-29 Certified copy of Order in W.P.27831/1992
" P-30 Certified copy of order sheet in O.S.No.
10146/1988
" P-31 & 32 Rough sketch
" P-33 Letter dated 8.11.1977
" P-34 Letter dated 15.4.1987
" P-35 Letter (misplaced)
LIST OF WITNESSES EXAMINED FOR DEFENDANTS DW.1 J.S.Shashidhar DW.2 Shanmugam DW.3 Lakshmipathaiah LIST OF DOCUMENTS MARKED FOR DEFENDANTS:
Ex.D-1 Certified copy of Will dated 8.1.196
Ex.D-2 Registered Will
Ex.D-3 Certified copy of order
Ex.D-4 to 7 Mutation register extracts
Ex.D-8 Pahani
Ex.D-9 Will
Ex.D-9(a) Signature
Ex.D-10 Cancellation deed
Ex.D-10(a) to (d) Signatures
Ex.D-11 Registered Will
Ex.D-11(a) to(k) Signatures
Ex.D-12 Certified copy of sale deed
96 OS No.3054/1987 & 2429/1991
Ex.D-13 to 19 Tax paid receipts
Ex.D-20 Encumbrance Certificate
Ex.D-21 & 22 Certificate from Bangalore City
Corporation
Ex.D-23 & 24 Postal cover
Ex.D-25 & 26 Letters
Ex.D-27 Certified copy of order
(BHIMAPPA G. JATTENNAVAR)
I Addl. City Civil & Sessions Judge, Bangalore.