Bangalore District Court
Mohanvelu vs Parthiban on 13 December, 2024
KABC010081212014
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT : SRI.BHAT MANJUNATH NARAYAN,
B.Com, LL.B.(Spl.)
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 13 th DAY OF DECEMBER, 2024
O.S.No.2442 of 2014
Plaintiff: 1. Sri. Mohanvelu,
S/o Late Purushothaman,
Aged about 59 years,
R/at No.4/3, Sathya Vani
Muthu Street,
Gandhi Nagar, Avadi,
Chennai-600 054.
(By G.R. Praveen Kumar.,
Advocate)
-VS-
Defendants: 1. Sri. Parthiban,
S/o Late Purushothaman,
Aged about 62 years,
R/at No.11, Yelamman Koil
Street, 2 nd Cross, Ulsoor,
Bengaluru-560 008.
2 O.S.No.2442 of 2014
(died during pendency of suit and
his L.Rs. are already on record as
defendant No.4 to 6)
2. Sri. Chandravarma,
S/o Late Purushothaman,
Aged about 56 years,
R/at No.11, Yelamman Koil
Street, 2 nd Cross, Ulsoor,
Bengaluru-560 008.
3. Smt. P. Hamsa,
D/o Late Purushothaman,
Aged about 51 years,
R/at No.2, 13 th main,
Brindavan Estate,
Vibudhipura, Ramaswamy
Palya, Bengaluru-33.
4. Sri. Vimalan,
S/o Late Parthiban,
Aged about 32 years,
5. Smt. Vijayalakshmi,
W/o Late Parthiban,
Aged about 62 years,
6. Ms. Geetha,
D/o Late Parthiban,
Aged about 39 years,
Defendant No.4 to 6 are
R/at No.5, (Old No.12-A),
Yellamman Koil Street,
3 O.S.No.2442 of 2014
F.No.2 Street, Ulsoor,
Bengaluru-560 010.
(D1-P.B.R., D4-G.V.B., D2&
D3-H.S.P.,-Advocates)
Date of Institution of the suit : 25.03.2014
Nature of the Suit : Partition
Date of commencement of :
recording of the evidence 09.06.2016
Date on which the Judgment : 13.12.2024
was pronounced
Total Duration : Years Months Days
10 08 19
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
J U D G M E N T
The plaintiff has filed this suit for partition & separate possession of the suit schedule property claiming 1/4th share.
4 O.S.No.2442 of 2014
2) The facts narrated in the plaint in brief are as follows:
a) The plaintiff submits that plaintiff, defendant No.1 to 3 are the children of Late P.Purushothaman and Late P. Sarojamma and they have constituted Hindu joint family. It is the specific case of the plaintiff that P. Purushothaman was the absolute owner of the property bearing No.11, Yelamman Koil Street, Bengaluru measuring East by 20.4 feet, West by 23 feet, North by 53.4 feet and South by 26.5+26 ¾ feet.
The plaintiff submits that his father Purushothaman had purchased the suit schedule property as per registered Sale Deed dated 29.01.1960 and since then plaintiff, defendants along with P.Purushothaman were residing together in the suit property.
b) It is the specific case of the plaintiff that Late Purushothaman died intestate on 21.10.2005 leaving behind plaintiff and defendants to succeed to his 5 O.S.No.2442 of 2014 estate. It is the case of the plaintiff that katha of schedule property stands in the name of P. Purushothaman and plaintiff being class-I legal heir of deceased is entitled to equal share along with defendant No.1 to 3. The plaintiff submits that since plaintiff and defendant No.1 to 3 have become co- owners of the suit property, he got issued a legal notice on 09.01.2014 to defendant no.1 and 2 to effect the partition of the suit schedule property by meets and bounds.
c) It is submitted by the plaintiff that in-spite of issuance of notice also the defendants have not effected the partition and refused to give 1/4 th share to the plaintiff. Therefore, plaintiff claims that he has filed this suit for partition and separate possession of the suit schedule property claiming 1/4 th share. Initially suit was filed against defendant No.1 to 3 only and thereafter, defendant no.4 to 6 who are the 6 O.S.No.2442 of 2014 children of defendant No.1 are impleaded as defendants.
3) In response to summons issued, the defendant No.1 to 3 have appeared but have not filed written statement. The defendant No.4 has filed written statement and denied the allegations that plaintiff and defendants are the members of the joint family and they have succeeded to the estate of deceased P. Purushothaman. It is admitted by the defendant No.4 that P. Purushothaman was the owner of property bearing No.11 of Yellamman Koil Street, and he has purchased the property as per Sale Deed dated 29.01.1960. The defendant No.4 has also admitted that P. Purushothaman died on 21.10.2005 but denied that plaintiff and defendant No.1 to 3 have succeeded to the interest of the deceased.
7 O.S.No.2442 of 2014
b) It is the specific case of the defendant No.4 that he is the beneficiary of property bearing No.5, Old No.12/A of Yellamman Koil Street, F No.2 Street, Ulsoor, i.e., the suit schedule property as per Will dated 06.03.1994 and codicil dated 03.11.2000 executed by Late M.P.Purushothaman. The defendant No.4 has contended that in furtherance of Will, his name stands in the revenue records and he is regularly paying taxes. It is submitted by the defendant No.4 that plaintiff has not approached this court with clean hands and suppressed the material facts. It is further submitted by the defendant No.4 that execution of Will is well within the knowledge of plaintiff and defendant No.2 & 3 and in spite of having knowledge of the same in order to harass defendant No.4, plaintiff along with other defendants tried to interfere with possession and enjoyment of the suit schedule property by defendant No.4. The defendant No.4 submits that he is absolute 8 O.S.No.2442 of 2014 owner of the suit schedule property by virtue of Will executed by Late M.P.Purushothaman. Therefore, the defendant No.4 has contended that plaintiff is not having any right over the suit schedule property. On these grounds the defendant No.4 prayed for dismissal of the suit with cost.
4) The plaintiff herein has filed re-joinder to the written statement filed by the defendant No.4. Plaintiff has denied that the defendant No.4 had acquired title over the suit schedule property as per Will dated 06.03.1994 and Codicil dated 03.11.2000. The plaintiff has further contended that Will was created by defendants for the purpose of depriving the share of plaintiff and as such, claim made out by defendant No.4 is not maintainable and liable to be rejected. It is submitted by the plaintiff that Will is fabricated document created after demise of Late P. 9 O.S.No.2442 of 2014 Purushothaman and 1 st defendant is master mind behind the alleged Will and defendant No.1 is making all efforts to deprive the share of the plaintiff. Therefore, the plaintiff has contended that the suit may be decreed by rejecting the testamentary claim of the defendant No.4.
5) By considering pleadings and documents produced by the parties, my learned predecessor in offi ce had framed the following issues :-
1. Whether plaintiff proves that he is entitled for 1/4th share in the suit schedule property?
2. Whether defendant No.4 proves that he is the absolute owner by virtue of the Will executed by Late M.Purushothaman, as alleged in para-9 of the written statement?
3. Whether plaintiff is entitled for the reliefs sought for?
4. What order or decree?10 O.S.No.2442 of 2014
6) In order to prove the burden caused upon the plaintiff to prove the above issues, the plaintiff got himself examined as P.W.1 and got marked 20 documents in support of his claim. The defendant No.4 got himself examined as DW.1 and 10 documents were marked on behalf of defendants. One N. Vasudevan advocate who has drafted and scribed of Will dated 06.03.1994 and Codicil dated 03.11.2000, is examined as DW.2.
7) It is argued on behalf of counsel for plaintiff that though relationship is denied, in the evidence and documents produced by the plaintiff clearly shows that he is the son of P. Purushothaman and as ownership of P. Purushothaman over the suit schedule property is admitted, it has to be held that plaintiff is having 1/4 th share in the schedule 11 O.S.No.2442 of 2014 property. It is argued on behalf of the plaintiff that Will is surrounded by suspicious circumstances and hence it cannot be held that the defendant No.4 has acquired title over the suit property. It is argued on behalf of the plaintiff that since attesting witness is not examined it cannot be held that attestation of Will is proved and defendant No.4 has become the owner of suit property.
8) The defendant No.4 claims as per Will dated 06.03.1994 and Codicil dated 03.11.2000 P.Purushothaman had bequeathed the suit schedule property to him and as such, neither the plaintiff nor the other defendants are having right title and interest over the suit schedule property. Hence, it is claimed that defendant No.4 is the absolute owner in possession of the suit schedule property. 12 O.S.No.2442 of 2014
9) I have considered the oral and documentary evidence adduced by both the parties to the suit in light of the arguments advanced before me and my findings on the above issues are:-
Issue No.1: In the Affi rmative
Issue No.2: In the Negative
Issue No.3: Plaintiff is entitled for the
relief of partition and
separate possession
Issue No.4: As per final order,
for the following:-
REASONS
10) Issue No.2 :- That, the plaintiff has filed the suit for partition and separate possession of the suit schedule property claiming 1/4 th share. Upon considering the pleadings it is clear that plaintiff claims that his father P. Purushothaman was the owner of the property and after his death, the plaintiff and defendant No.1 to 3 being children have inherited the property. The defendant No.4 who is son of defendant 13 O.S.No.2442 of 2014 No.1 has set up a claim through testamentary document i.e., Will dated 06.03.1994, and Codicil dated 03.11.2000 stating that P. Purushothaman had bequeathed the suit property to him.
11) The defendant No.4 while denying the averments made in the plaint has denied that plaintiff is the son of P. Purushothaman. However, the evidence adduced, cross-examination and documents produced by the plaintiff shows that Mohanvelu-plaintiff herein is the son of M.P.Purushothaman. The recitals of testamentary documents through which defendant No.4 is claiming right over the property also shows that Mohanavelu is the son of M.P.Purushothaman. So, if documents produced by both the parties are considered, it is clear that plaintiff and defendant No.1 to 3 are the sons and daughters of M.P.Purushothaman.
14 O.S.No.2442 of 2014
12) It is not in dispute that M. P. Purushothaman was the owner of the suit schedule property. The Sale Deed dated 29.01.1960 is marked at Ex.P.1 which shows that M. P. Purushothaman has purchased the suit schedule property for a consideration amount of ₹.35,000/-. The plaintiff and defendants have admitted the title of P.Purushothaman and it is clear from the plaint & written statement averments, document marked at Ex.P.1 and oral evidence that M. P.Purushothaman was the absolute owner of suit property.
13) It is undisputed that M. P.Purushothaman who died on 21.10.2005. Since, plaintiff and defendant No.1 to 3 are the children of M. P.Purushothaman, after his demise naturally as per Section 8 of Hindu Succession Act property will devolve upon his sons and daughters in the absence of any testamentary documents. The 15 O.S.No.2442 of 2014 defendant No.4 who is grandson i.e., son of defendant No.1 is claiming that he is a testamentary heir of deceased Late P.Purushothaman. So, burden is upon defendant No.4 to prove due execution & attestation of Will dated 06.03.1994 and Codicil dated 03.11.2000 and claim absolute right over the suit schedule property. So, the adjudication of claim is depending upon the proof of execution of Will dated 06.03.1994 and Codicil dated 03.11.2000.
14) Hon'ble Apex Court in Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734 : 2023 SCC OnLine SC 1198 summarized principles required for proving the validity and execution of the will & observed as under
10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, 1958 SCC OnLine SC 31 : 1959 Supp (1) SCR 426 : AIR 1959 SC 443] (three-Judge Bench), Bhagwan Kaur v. Kartar Kaur [Bhagwan 16 O.S.No.2442 of 2014 Kaur v. Kartar Kaur, (1994) 5 SCC 135] (three-Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam [Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91] (two-Judge Bench), Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh [Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 : (2009) 2 SCC (Civ) 348] (three-
Judge Bench) and Shivakumar V Sharanabasappa [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] (three-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the will:
10.1. The court has to consider two aspects : firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him;
10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature 17 O.S.No.2442 of 2014 or affixation shall show that it was intended to give effect to the writing as a will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;
18 O.S.No.2442 of 201410.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with; 10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier.
10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will;
10.10. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, 19 O.S.No.2442 of 2014 even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
10.11. Suspicious circumstances must be "real, germane and valid" and not merely "the fantasy of the doubting mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ". Whether a particular feature would qualify as "suspicious" would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc.
15) The Hon'ble High Court of Karnataka in the decision reported in ILR 2008 page 2115 has also laid down guidelines for proof of Will which is extracted as under :
24. Therefore, the court has to tread a careful path in the enquiry to be conducted with regard to Will.
The said path consists of five steps "PANCHA PADI". 20 O.S.No.2442 of 2014 The path of enquiry and steps to be traversed are as under:-
(1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will?
(2) Whether the natural heirs have been disinherited? If so, what is the reason?
(3) Whether the testator was in a sound state of mind at the time of executing the Will?
(4) Whether any suspicious circumstances exist surrounding the execution of the Will?
(5) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act?
16) As per observation made by Apex court & Hon'ble High Court, the defendant No.4 is required to prove that P. Purushothaman has executed a Will as contended in the written statement. The 1 st step to be considered by this court is whether Will is writing, bear signature or mark of testator and is duly attested by 21 O.S.No.2442 of 2014 two attested witnesses and whether one attesting witnesses is examined to prove the Will or not.
17) On perusal of Will dated 06.03.1994 and codicil dated 03.11.2000 marked at Ex-D1 & 2 it is clear that it bears signature of executant and also signed by two witnesses. However in this case in order to prove the due execution & attestation of Will dated 06.03.1994 and Codicil dated 03.11.2000 the defendant No.4 has not examined any of the attesting witnesses.
One N Vasudevan advocate who is the scribe of Ex.D.1 Will dated 06.03.1994 and Codicil dated 03.11.2000 is examined as DW.2. DW.2 N. Vasudevan has identified his signature on the Will as well as in Codicil. In the evidence of DW-2 Vasudevan he has not stated anything about attestation, about signature of witnesses, about signing of Will and Codicil by testator 22 O.S.No.2442 of 2014 in the presence of attesting witnesses or attesting witness signing the Will in the presence of executant.
18) As per Section 68 of Bharatiya Sakshya Adhiniyam and Section 63 of Indian Succession Act, Will is a document which is compulsorily required to be attested and is to be proved by examining one of the attesting witnesses. The defendant no.4 herein has not taken pain to examine one of the attesting witnesses. If attesting witnesses are no more or not available then Will can be proved as per Section 69 of Bharatiya Sakshya Adhiniyam and that evidence is also not adduced by defendant No.4 herein.
19) A scribe, who simply writes down the content of a document, cannot be considered an attesting witness because their primary role is to transcribe information, not to witness the signing or execution of the document, which is the essential function of an 23 O.S.No.2442 of 2014 attesting witness. It is to be noticed that the word attested, the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under sec.3 of Transfer of Property Act are:
(1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering offi cer, he is not an attesting witness.24 O.S.No.2442 of 2014
Hence DW-2 the scribe of the document cannot be treated as attesting witnesses DW.2 has not stated that he signed the Will as attesting witness but only stated that he is the scribe of Ex.D.1 Will dated 06.03.1994 and Codicil dated 03.11.2000.
20) The evidence of DW.2 N. Vasudevan cannot be considered as proof of Will has required under Section 68 of Bharatiya Sakshya Adhiniyam and R/w. Section 63 of Indian Succession Act, nor it complies the provisions of Section 69 of Bharatiya Sakshya Adhiniyam. In the examination-in-chief of DW.2, he has not stated that attesting witnesses have signed the Will in the presence of testator P. Purushothaman and P. Purushothaman has signed the Will in the presence of attesting witnesses. The evidence of DW.2 will not comply the requirement of Section 63 of Indian 25 O.S.No.2442 of 2014 Succession Act, even if he is considered as an attesting witness.
21) The Hon'ble High Court of Karnataka in J.T. Surappa case referred above has observed as under :
25. The word 'Will' has been defined under Section 2(h) of the Indian Succession Act, 1925 (for short hereinafter referred to as 'the Act').
Will means "the legal declaration of the intention of the testator with respect to his property which he desires to be carried into after his death". In India everyone is governed by their personal law in so far as inheritance or succession to their property is concerned. In the absence of a Will the property devolves on the legal heirs in accordance with the said personal law. If there is a Will, it comes in the way of the operation of the said law. Therefore, the Will obstructs inheritance of the property. Under the Act, the Will to be valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all. Therefore, if the documents produced before the Court prima facie do not satisfy these legal requirements, the Court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim 26 O.S.No.2442 of 2014 based on the said document. This is the FIRST STEP.
22) In the present case no attesting witness is examined not examined and hence the documents produced before the Court prima facie do not satisfy legal requirements, therefore, this Court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim based on the said document Hence, in my considered opinion claim made by defendant No.4 in respect of suit schedule property is not maintainable.
23) I have perused Will in detail. In Will there is a recital that testator intends to give ₹.5000/- each to his grandchildren by name Vimalan, Geetha, Harish, Atachi, Naveen Ramya. It is important to note that in the cross-examination of Defendant No.4, Marks card of one Akshay Kumar who is son of plaintiff herein is confronted and admitted by Defendant No.2. In cross- 27 O.S.No.2442 of 2014 examination of defendant No.4 has stated that the name Atachi mentioned in Ex.D.1 is Akshay Kumar the son of plaintiff herein. He has also admitted that Akshay Kumar is born on 21.10.1995. The relevant portion of cross-examination is extracted as under:
3 ನೇ ಪ್ರ ತಿವಾದಿಗೆ ಇಬ್ಬ ರು ಮಕ್ಕ ಳು. ಅವರುಗಳೆಂದರೆ ರಮ್ಯ ಮತ್ತು ನವೀನ್. ನಿ.ಡಿ.1 ವಿಲ್ ನಲ್ಲಿ ವಾದಿ ಮತ್ತು ಪ್ರ ತಿವಾದಿಯರ ಹೆಸರುಗಳನ್ನು ನಮೂದಿಸಲಾಗಿದೆ ಎಂದರೆ ಸರಿ. ನಿ.ಡಿ.1 ರಲ್ಲಿ ಬರೆದಿರುವ Atachi ಯವರೇ ಅಕ್ಷ ಯ್ ಕುಮಾ ರ್ ಇರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ವಾದಿ ಐದು ಸಾವಿರ ಹಣ ಅಡಮಾನದ ಬಾಬ್ತು ತೀರಿಸಿರುವುದಾಗಿ ನಿ.ಡಿ.1 ರಲ್ಲಿ ನಮೂದಿಸಲಾಗಿದೆ ಎಂದರೆ ಸರಿ.
ನನಗೆ ಈಗ ತೋರಿಸಿದ ಅಂಕಪಟ್ಟಿ ನನ್ನ ಚಿಕ್ಕ ಪ್ಪ ನ ಎರಡನೇ ಮಗ ಅಕ್ಷ ಯ್ ಕುಮಾರ್ ರವರದ್ದು ಎಂದರೆ ಸರಿ. ಸದರಿ ಅಂಕಪಟ್ಟಿ ಯಲ್ಲಿ ಅವರ ಜನ್ಮ ದಿನಾಂಕ:21.10.1995 ಎಂದು ನಮೂದಿಸಲಾಗಿದೆ ಎಂದರೆ ಸರಿ.
24) I have perused Ex.P.19 marks card of Akshay Kumar M., who is named as Atachi in the Ex.D.1 Will. The date of birth of Akshay Kumar @ Atachi is 21.10.1995. Will is alleged to have been written on 28 O.S.No.2442 of 2014 06.03.1994 i.e., one and half year earlier to birth of Akshay Kumar @ Atachi. So, it is clear that the Will is not written on the day, on which it is said to have been written because there is a reference of Atachi in Will dated 06.03.1994 who is actually born on 21.10.1995 i.e., after execution of alleged Will. It is create doubts whether really Will is executed on the date, on which it is said to have been executed. So, one cannot say that the Will is not surrounded by suspicious circumstances. I have perused the Will in detail. There is no valid reason assigned for desalinating the natural heirs and giving property to defendant No.4 alone. Therefore, in my considered view the Will is also surrounded by suspicious circumstances as it has got reference of person with name who born after date of execution of Will. As attesting witness is not examined, and execution of Will is surrounded by suspicious circumstances in my opinion, the claim of defendant 29 O.S.No.2442 of 2014 No.4 on the basis of Will is not sustainable and is liable to be rejected. Therefore, I am of the opinion that defendant No.4 has failed to prove the due execution and attestation of Will beyond suspicious circumstances. Accordingly issue No.2 is answered in the Negative.
25) Issue No.1:- This issue is framed with respect to share of the plaintiff in the suit schedule property. While giving finding on issue No.2 , I have concluded that M. P. Purushothaman was the owner of the property and he died leaving behind him plaintiff, defendant No.1 to 3 sons and daughters. Since, defendant No.4 has failed to prove that he is a testamentary heir of M. P. Purushothaman, the property will devolve upon sons and daughters of M. P. Purushothaman under Section 8 of Hindu Succession Act. Plaintiff, defendant No.1 to 3 being sons and 30 O.S.No.2442 of 2014 daughters of M. P.Purushothaman will succeed to the estate of deceased equally as class-I heirs. Therefore, the plaintiff is having 1/4th share in the suit schedule property. Defendant No.1 died during the pendency of the suit and his LRs i.e., daughters are brought on record as defendant No.5 and 6. So, whatever share defendant No.1 had in the schedule property will devolve upon defendant No.4 to 6. Like plaintiff, defendant No.2 & 3 are also having 1/4 th share each in the suit property. Hence, issue No.1 is required to be answered in Affi rmative holding that plaintiff is having 1/4th share in the suit schedule property.
26) Issue No.3:- This issue is framed with respect to relief claimed. Plaintiff has sought for relief of partition and separate possession of the suit schedule property claiming 1/4 th share. While answering issue No.1 and 2, I have concluded that 31 O.S.No.2442 of 2014 defendant No.4 has failed to prove due execution and attestation of Will beyond the suspicious circumstances surrounding the execution of Will and as such, plaintiff and defendant No.1 to 3 have inherited the property after death of M.P. Purushothaman. I have also concluded that plaintiff is having 1/4 th share in the suit schedule property. Hence, the relief of partition and separate possession claimed by the plaintiff can be granted holding that plaintiff is having 1/4th share in the suit schedule property. There is no impediment under any other law for the timing being in force to grant the relief claimed by the plaintiff. Therefore, in my considered view the plaintiff is entitled for relief of partition and separate possession of the suit schedule property. Accordingly, issue No.3 is answered in favour of the plaintiff.
32 O.S.No.2442 of 2014
27) Issue No.4:- In view of the discussions and conclusion arrived at issue Nos.1 to 3, the suit of the plaintiff is liable to be decreed. Hence, I proceed to pass the following:-
ORDER The suit of the plaintiff is decreed. It is ordered and decreed that plaintiff is having 1/4th share in the suit schedule property.
It is further ordered and decreed that defendant No.2 & 3 are having 1/4th share each in the suit schedule property.
It is further ordered and decreed that defendant No.4 to 6 together are having 1/4 th share in the suit schedule property.
Suit schedule property being non- agricultural land is ordered to be divided by appointing Court Commissioner under Provisions of Order XXVI of CPC.
Parties to bear their own cost.
Draw preliminary decree accordingly.33 O.S.No.2442 of 2014
(Dictated to the Stenographer Grade-III, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 13th day of December, 2024.) (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE I. List of witnesses examined on behalf of plaintiff:-
P.W.1 Mohanvelu
II. List of witnesses examined on behalf of defendants:-
D.W.1 Vimalan P.,
D.W.2 N. Vasudevan
III. List of documents exhibited on behalf of plaintiff:-
Ex.P.1 Certified copy of Sale Deed dated 29.01.1960 Ex.P.2 Nil encumbrance certificate Ex.P.3 Office copy of legal notice dated 09.01.2014 Ex.P.4 Postal receipt Ex.P.5 Letter received by postal department Ex.P.6 to Photographs 10 34 O.S.No.2442 of 2014 Ex.P.11 Negative of photograph Ex.P.12 School marks card Ex.P.13 School ID card Ex.P.14 ATM card Ex.P.15 Bank statement Ex.P.16&17 Two CGHS and Appendix-5 Ex.P.18 Affidavit of Mohanvelu Ex.P.19 Marks card Ex.P.20 TC IV List of documents exhibited on behalf of defendants:
Ex.D.1 The Will and testament
dated:06.03.1994
Ex.D.2 Codicil dated:06.03.1994
Ex.D.3 Ration card of P. Purushotham
Ex.D.4 Deed of mortgage
dated:02.11.1998
Ex.D.5 EC
Ex.D.6 Uttara Patra
Ex.D.7 Kthatha certificate issued by BBMP
Ex.D.8 Kthatha extract issued by BBMP
Ex.D.9 Uttara patra dated:18.01.2019
Ex.D.10 Death certificate of P. Purushotham
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge, Bengaluru 35 O.S.No.2442 of 2014 36 O.S.No.2442 of 2014 37 O.S.No.2442 of 2014