Bangalore District Court
Sri. S.C.Thimmappa vs Smt. Asha Devadasan on 30 July, 2016
Govt. of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, BANGALORE.
Title sheet for
Judgment in suits
(R.P.91)
Present: Sri. J.R.Mendonca, B.A.L, LL.B.
(Name of the presiding judge)
Original suit No.15283/2006
(CCCH-29)
Plaintiff:- Sri. S.C.Thimmappa,
Since deceased
Josephine Wesley,
Smt. Josephine Wesley,
Aged about 45 years,
W/o. Sri. Josephine Wesley,
R/at. No.1, Ist Main,
Sampangiramanagar,
Bangalore-27.
(By Sri. Thiruvengadam.B.C., Advocate)
V/s.
Defendant:- 1. Smt. Asha Devadasan
(Died on 16/08/2013)
Aged about 48 years,
W/o. Sri. Vijendra S.
Devadasan,
R/at. No.139,10th 'A' Main,
5th Cross, Ist Block,
Jayanagar, Bangalore-11.
1(a). Sri. Vijendra S. Devadasan,
H/o. Late. Asha Devadasan
Aged about 64 years,
2 OS.No.15283/2006
1(b). Rohan Cahrles Devadasan,
S/o. Sri. Vijendra S. Devadasan
Aged about 33 years,
1(c). Rabuan Trevor Devadasan,
S/o. Sri. Vijendra S. Devadasan,
Aged about 29 years,
All are R/at.No.139,10th 'A' Main,
5th Cross, Ist Block,
Jayanagar, Bangalore-11.
2. Sri. Reginald Wesley,
S/o. Benjamin Wesley,
Aged about 52 years,
R/at. No.1371, D/1 Vasanth Kunj,
New Delhi- 110070.
3. Smt. Mercy SathyaShella,
Aged about 45 years,
W/o. Sri. Sathyasheela,
R/at. No.1, Ist Main,
Sampangiramanagar,
Bangalore-27.
(D1 By Sri. Rajanna.N, Advocate)
(D2 By Sri. Thiruvengadam.B.C., Advocate)
(D3 By Sri. Chandrashekar. C.N., Advocate)
Date of Institution of the suit 16.2.2006
Nature of the (Suit or pro-note, suit for Partition.
declaration and possession, suit for
injunction, etc.)
Date of the commencement of recording of 14.07.2014
the Evidence
Date on which the Judgment was 30.7.2016
pronounce
3 OS.No.15283/2006
Year/s Month/s Days
Total duration 10 05 14
JUDGMENT
This suit was initially filed by Sri. S.C.Thimappa, who was the Executor of the Will. He passed away during the pendency of the proceedings. The Defendant No.4 transposed herself as the Plaintiff. The suit is filed for passing a decree for administration of the suit property in accordance with the the directions in the Will dt: 6/3/1995 of Ms. Ethel Wesley
2. The description of the plaint schedule property is as under:
SCHEDULE 'A' PROPERTY All the piece and parcel of the immovable property known as Laxmi nivas bearing New No. 139 and Old No. 506, 10th 'A' Cross, situated in Ist Block/Main, Jayanagar, Bengaluru which is bounded on the:
East by : 10th 'A' Main West by : Dr. Nisarga's House, North by : Venkataramanappa's House, South by : Krishna's House.4 OS.No.15283/2006
SCHEDULE 'B' PROPERTY Liabilities to be paid on schedule property bequeathed under the Will dated: 06.03.1995.
1. Rs. 10,000/- to my elder sister Smt. Vimala Swamikannu.
2. Rs. 10,000/- to my younger sister Smt. Anthamma Das.
3. Rs. 10,000/- to Sri. Alex Pinto.
4. Rs. 10,000/- to Smt. Lalitha Kumari Wesley.
5. Rs. 10,000/- to Smt. Rani Wesley.
6. Rs. 20,000/- to Presbyter Hudson Memorial Church, Bangalore, to be kept as fixed deposit in the name of Church.
3. The plaintiff's case in brief is that the Plaintiff has been appointed as the Executor by late Ms. Ethel Wesley in her registered Will dt: 6/3/1995. She passed away on 25/8/1999. She was a Spinster at the time of her death and was a permanent resident of Bengaluru. The Plaintiff as an Executor appointed under the said registered Will, applied for Probate to the Hon'ble City Civil Judge's Court, Bengaluru in P & S.C. No.15023/2003 (City Civil Judge's Court, Mayohall Unit) and as per Order dt: 5/2/2003, the said court granted the Probate with the Will annexed to it, to the Plaintiff. Thus, in his capacity as an Executor he is authorised to administer the estate of the 5 OS.No.15283/2006 deceased in accordance with the Will probated by the Court. As per the said Will, Testator had left behind her both movable and immovable properties at Mysore and at Bengaluru, as well as Gold and Silver articles and other household articles being collections and self-earnings. She had her Bank deposits depicted therein. One of the immovable properties situated at 506, Ist Block, 10th A Main road, 5th Cross, Jayanagar, Bengaluru named as Lakshmi Nivas, which is the suit property. The legacy relating to the same in the Will is as follows:-
i) Whereas, I have acquired the Property described hereunder, under a Sale deed, dt: 25/1/1961, registered as No.4450, in Volume 210 of Book-I, Pages 139 to 143 in the Office of the Sub-Registrar, Bangalore City South, Bangalore.
ii) I Hereby give my way of Will the immovable property bearing No. 506, situated in Ist Main, Laxmi Nivas, Jayanagar, Bangalore (My self acquired property) to
1. Smt. Mercy Shashikala Sathyasheela;
2. Smt. Asha Christiana Devadasan
3. Smt. Josephine Swarnalatha Wesley
4. Sri. Reginald Wesley.6 OS.No.15283/2006
iii) It shall be shared equally by the above persons. Smt. Asha Christiana Devadasan shall pay the said amount to the following persons;-
1. Rs. 10,000/- to my elder sister Smt. Vimala Swamikannu.
2. Rs. 10,000/- to my younger sister Smt. Anthamma Das.
3. Rs. 10,000/- to Sri. Alex Pinto.
4. Rs. 10,000/- to Smt. Lalitha Kumari Wesley.
5. Rs. 10,000/- to Smt. Rani Wesley.
6. Rs. 20,000/- to Presbyter Hudson Memorial Church, Bangalore, to be kept as fixed deposit in the name of Church. The annual interest from this amount should be given as Scholarship in my memory to deserving students studying either Medicine or any higher studies (Christian Student).
4. The Ist Defendant is in occupation of the said Jayanagar property, it is to be distributed as per the probated will of 6/3/1995, as it is bequeathed in favour of four persons as legatees namely the Defendants No.1 to 4. The bequest made to them is saddled with direction to pay as specified in the Will as a condition precedent. The Ist Defendant is resisting the same and has made protests to it. The Plaintiff caused a Notice to the Defendants particularly the Ist Defendant requesting her to 7 OS.No.15283/2006 vacate the suit schedule property and to pay Rs.70,000/- to the hands of Plaintiff-Executor in order to distribute according to the directions in the probated Will. But the Ist Defendant had not taken any steps in that behalf. The Plaintiff is, thus in the circumstances, advised to submit that the Administration suit as an executor is more convenient and proper and just, in view of the obstacles and resistance put forward by the Ist Defendant. Therefore, the Plaintiff has prayed to decree the suit.
5. The defendants have appeared through their respective counsels and have filed their written statement.
6. In the written statement the defendant no.1 has contended that the suit of the Plaintiff is not maintainable as she has filed a Misc. petition No. 15173/2005 to revoke the Probate granted in favour of the Plaintiff. She has stated that the Will dt:
6/3/1995 was not executed by deceased Mis. Ethel Wesley. But, it is a creation of the Plaintiff and others. She has admitted that she is living in suit property for the last 37 years and was given ½ share in the said property in the earlier Will dt: 23/2/1991. The Plaintiff as Executor did not give notice of the petition to Defendants and others. Therefore, it is a just reason for 8 OS.No.15283/2006 revoking the Probate. Therefore, the Defendant No.1 has prayed to dismiss the suit.
7. The Defendants No. 2 to 4 have filed the written statement admitting the plaint averments and have prayed to decree the suit.
8. Based on the aforesaid pleadings this Court has framed the following issues:-
1. Whether the plaintiff proves the due execution of Will dated 6.3.1995 by deceased Ethel Wesley?
2. Whether the plaintiff further proves that she has been appointed as Executor of the Will deed and obtained probate by virtue of order dated: 5.2.2003?
3. Whether the defendant No.1 proves that she is entitled for ½ share in the suit schedule property by virtue of earlier Will deed dated 23.02.1991?
4. Whether the court fee paid is sufficient?
5. What order or decree?
9. In support of the case of the plaintiff, the defendant no. 4 who got herself transposed as the plaintiff got examined as P.W.1 and got marked five documents as Ex.P-1 to P-5 and closed her side. The defendant no. 1 has not led any evidence in spite of giving sufficient opportunity.
9 OS.No.15283/2006
10. Heard the arguments of the learned counsel for the plaintiff. The defendants and their counsels were absent when the case was called for hearing.
11. My answer to the aforesaid issues is as follows:-
Issue No.1 : In the affirmative. Issue No.2 : In the Affirmative. Issue No.3 : In the Negative Issue No.4 : In the Affirmative. Issue No.5 : As per final order for the following :-
REASONS
12. Issues No.1 to 3 :- As all these 3 Issues are inter- connected with each other, all these issues are taken up together for consideration.
13. The Defendant No.4 who has transposed as the Plaintiff got herself examined as PW-1. She has produced the Order passed by the Hon'ble IV Addl. City Civil & Sessions Judge in P & S.C. No. 15023/2001 on 5/2/2003, wherein the Court has held that the Will dt: 6/3/1995 executed by Ms. Ethel Wesley is duly proved and the original Plaintiff S.C.Thimappa was appointed as Executor.
10 OS.No.15283/2006
14. The Defendant No.1 has stated that she has filed a Miscellaneous case to set aside the Probate. But the Defendant No.1 has not produced any documents to show that the said Probate is set-aside. In the cross examination of PW-1 nothing is elicited to disbelieve the case of the Plaintiff. Therefore, it is to be held that the Plaintiff has duly proved the due execution of the Will dt: 6/3/1995 and that the original Plaintiff S.C.Thimappa was appointed as an Executor of the said Will. The Competent Court while granting Probate has held that the Will executed by Ms. Ethel Wesley is duly executed and the same is duly proved. The said findings are binding on all the parties till it is set aside. There are no materials to show that the said findings or the order of Probate Court is set aside.
15. The Defendant No.1 has failed to prove that she is entitled for ½ share in the suit schedule property. Hence, Issues No.1 and 2 are answered in the Affirmative and Issue No.3 is answered in the Negative.
16. Issue No.4 :- The Plaintiff has paid Court fee of Rs. 200/- by valuing the suit at Rs. 10,000/- as per Sec. 37 and Sec. 47 of the Karnataka Court Fees and Suits valuation Act. The Defendant No.1 has failed to prove that the Court fee paid is not sufficient. Therefore, this court holds that the Court fee paid by 11 OS.No.15283/2006 the Plaintiff is sufficient. Hence, I answer the Issue No.4 in the Affirmative.
17. Issue No.5 :- In this case the Executor is dead. The present parties to the suit have a joint right in the property as per the terms of the Will. This suit is only in respect of immovable property. Therefore this suit has to be treated as a suit for partition and a preliminary decree should be ordered to be drawn to divide the property as per the Terms of the 'Will' with a direction to Defendant No.1 to discharge the liability cast on her by the Executor of the Will. Considering the relationship between the parties and the relief granted to the parties, the parties must be directed to bear their respective costs.
18. In the result, this Court proceeds to pass the following:-
ORDER The suit of the plaintiff is decreed with no order as to costs.
The Plaintiff Smt. Josephine Wesley and the Defendants No.1 to 3 are entitled for 1/4th share each in the Plaint 'A' schedule property.
The Defendant No.1(a) to 1(c) as the Legal heirs of the deceased Defendant No.1 are entitled for 1/4th share of Defendant No.1.12 OS.No.15283/2006
The Defendant No.1(a) to 1(c) are directed to discharge the liability of deceased Defendant No.1 as shown in the Schedule 'B' as per the terms of the Will.
The Partition shall be effected as per Sec. 54 of C.P.C. Draw up preliminary decree accordingly. [Dictated to the Judgment-Writer, computerized transcript thereof corrected, signed and then pronounced by me in the open Court on this the 30th day of July, 2016].
[ J.R.MENDONCA ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
ANNEXURE
1. List of witnesses examined for the plaintiffs :-
P.W.1 : Smt. Josephine Wesley.
2. List of documents marked :-
Ex.P 1 : Family Tree.
Ex.P 2 ; Copy of Registered Will dated
6/3/1995
Ex.P 3 ; 2 Letters dt: 18/11/2013.
& 4
Ex.P 5 ; Copy of order of Probate.
3. List of witnesses examined for the defendants :-
None.
4. List of documents marked for the defendants :-
Nil.
[ J.R.MENDONCA ], XXVIII ACC & SJ.13 OS.No.15283/2006
14 OS.No.15283/2006 Judgment pronounced in open Court ORDER The suit of the plaintiff is decreed with no order as to costs.
The Plaintiff Smt. Josephine Wesley and the Defendants No.1 to 3 are entitled for 1/4th share each in the Plaint 'A' schedule property.
The Defendant No.1(a) to 1(c) as the Legal heirs of the deceased Defendant No.1 are entitled for 1/4th share of Defendant No.1.
The Defendant No.1(a) to 1(c) are directed to discharge the liability of deceased Defendant No.1 as shown in the Schedule 'B' as per the terms of the Will.
The Partition shall be effected as per Sec. 54 of C.P.C. Draw up preliminary decree accordingly.
(J.R.Mendonca), XXVIII ACC & SJ, B'luru.15 OS.No.15283/2006