Bangalore District Court
Smt. Nagaveni .M vs Sri. Narendra Kumar M on 20 January, 2021
1
O.S.NO.3044/2012
IN THE COURT OF THE XXX ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH.31)
DATED THIS THE 20 th DAY OF JANUARY 2021
PRESENT:
SRI. MAANU K.S., B.Sc., LLB.
XXX Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.NO.3044/ 2012
PLAINTIFF/S : Smt. Nagaveni .M.,
D/o Late Muniyellappa,
W/o Muniswamy,
Aged about 40 years,
R/at No.59, Near Yellamma
Temple, Channagatta,
Konanakunte Cross,
Kanakapura Main Road,
Kanakapura Post,
Bengaluru -560 062.
(By Pleader Sri.T.K.Rajagopala,
Adv.)
/VS/
DEFENDANT/S: 1. Sri. Narendra Kumar M.
S/o Late Muniyellappa,
Aged about 38 years,
R/at No.1, 6th Cross,
Gunadappa Gowda Road,
Ejipura, Vivekanagar Post,
Bengaluru -560 047.
2. Sri.Nanda Kumar.M.
S/o Late Muniyellappa,
Aged about 33 years,
R/at No.1, 6th Cross,
Gunadappa Gowda Road,
Ejipura, Vivekanagar Post,
Bengaluru -560 047.
2
O.S.NO.3044/2012
3. Smt.Navitha Kumari M.,
D/o Late Muniyallappa,
Aged about 35 years,
R/at No.1, 6th Cross,
Gunadappa Gowda Road,
Ejipura, Vivekanagar Post,
Bengaluru -560 047.
(By Pleader Sri.B.A.Adv.)
DATE OF INSTITUTION : 20-04-2012
NATURE OF THE SUIT (Suit on : Suit for Partition,
Pronote, Suit for declaration and & Separate possession.
Possession, Suit for injunction, etc.)
DATE OF THE COMMENCEMENT
OF RECORDING OF THE EVIDENCE : 29-01-2018
DATE ON WHICH THE JUDGEMENT
WAS PRONOUNCED : 20-01-2021
TOTAL DURATION YEAR/S MONTH/S DAY/S
08 09 00
(MAANU K.S.),
XXX ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
3
O.S.NO.3044/2012
JUDGEMENT
1. This is a suit for partition of the suit schedule properties by reopening the earlier partition deed dtd.02-08-2004 and put her in separate possession of her share and for permanent injunction restraining the defendants from encumbering or alienating the same along with costs of the proceedings.
2. The brief facts of the plaintiff's case are as follows:
(a). It is the case of the plaintiff that defendants, herself and her mother late Shankaramma @ Shankamma were the parties to the registered partition deed dtd.02-08-2004 and the way in which the properties have been divided as 'A' to 'E' schedule property in the said partition deed, the same manifestly shows the domination of defendants No.1 and 2 on plaintiff, 3rd defendant and her mother late Shankaramma @ Shankamma who died on 29-04-
2009 intestate, the attitude of the defendants No.1 and 2 towards her and the 3rd defendant, virtually dictating terms to receive what they have offered or otherwise to loose the negligible share given to them and thereby totally ignoring the legitimate shares of herself and 3rd defendant in the said properties and a look at the said partition deed further makes it clear about the intentions of the defendants No.1 and 2 to have their lion's share in the partition deed and to 4 O.S.NO.3044/2012 give minute share to her and 3 rd defendant which clearly manifest an instinct of male domination on the women folks of the family and that the said partition is prima-facie unequal compared to the shares of defendants No.1 and 2.
(b). It is her further contention that in view of the above said inequalities and unequal partition in the said partition deed, she is justified to charge the defendants No.1 and 2 with the allegation that they have devised the partition in such a way to see that herself and her sister were unjustly treated and the share given to them is unfair, tainted with illegality and thereby rendering the same assailable as inequitable and unfair. She further contended that in view of the same, the defendants No.1 and 2 have not treated herself and 3rd defendant as their sisters and as such they are entitled to equal share in the said properties as they have got 1/4th share each in the said properties and in this regard, she has got issued a legal notice dtd.10-02-2012 to the defendants calling upon them to reopen the partition and to effect partition in an equitable manner which was evaded by the defendants and she further came to know that they are trying to alienate the suit schedule properties and as such, left with no other option, she has come up with this suit for reopening of the partition deed dd.02-08-2004, for permanent injunction and prayed to decree the suit.
5O.S.NO.3044/2012
3. After service of summons, the defendants No.1 to 3 appeared and filed their common written statement, wherein they have admitted the relationship of plaintiff with them and denied the several allegations made against them as false and frivolous and called upon the plaintiff to strict proof of the same. While specifically denying that the partition deed stands tainted with illegality and that the same is unfair and inequitable and that the same is liable to be reopened and that the plaintiff is entitled for 1/4th share over the suit schedule properties, etc. they contended that the plaintiff has come up with this false suit at a belated stage just to harass them and to gain illegally and by further contending that the suit is not properly valued and the Court Fees paid is not sufficient and the suit is bad for mis-joinder and non-joinder of parties, they have sought for dismissal of the suit.
4. By way of amendment to the written statement, they have further contended that their mother during her lifetime had executed a Will on 22-01-2009 in favour of the defendants No.1 and 2 bequeathing some of the properties which she got under the registered family partition deed dtd.02-08-2004 and the same came to their knowledge only in the last week of September 2018, when they were searching for the documents in respect of the properties situated at Hosur-Sarjapur Road allotted by BDA and as such, after tracing the said Will, they approached the witnesses and scribe 6 O.S.NO.3044/2012 and got confirmed about the said Will and thereafter they have come up with this specific defence by way of amendment and there is no delay in amending the written statement as they had no knowledge about the said Will and therefore the plaintiff is not entitled for any relief from the hands of this Court.
5. On the basis of the rival contentions taken up by the respective parties, the following issues have been framed by the Learned predecessor in office for disposal of the case:
ISSUES
1. Whether the plaintiff proves that partition deed dtd.02-08-2004 was obtained on the domination and dictate of the defendants on her?
2. Whether the plaintiff proves that it was inequitable and unfair partition under partition deed dtd.02-08- 2004?
3. Whether the Court Fees paid is sufficient?
4. Whether the plaintiff is entitled for the reliefs claimed?
5. What order or decree?
ADDL. ISSUE
1. Whether the defendants prove that their mother Smt.Shankaramma had validly executed a Will dated 22-01-
2009 bequeathing her properties acquired under the registered partition deed dtd.02-08-2004 in favour of 1st and 2nd defendants?
7O.S.NO.3044/2012
6. In order to substantiate her case, the plaintiff got examined herself as P.W.1 and got marked the documents as per Ex.P.1 to P.43 & 43(a) and after cross-examination, she closed her side evidence. To prove the case of the defendants, the defendant No.2 got examined himself as D.W. 1 and two more witnesses as D.Ws.2 and 3 and got marked 28 documents as per Ex.D. 1 to D.28 and closed their side evidence after cross-examination. Thereafter, the case was posted for arguments.
7. Heard the arguments of the counsels for the plaintiffs and defendants. Both the counsels for the plaintiff and defendants have filed memo with the decisions.
8. Perused the materials placed on record and the decisions submitted by both the counsels.
9. My findings on the above issues are as follows:
Issue No.1: In the negative .
Issue No.2: In the negative.
Issue No.3: Already answered in the negative on 12.02.2014.
Issue No.4: Partly in the affirmative. Addl. Issue No.1: In the negative.
Issue No.5: As per the final order for the following:8
O.S.NO.3044/2012 REASONS
10. ISSUES NO.1 & 2:- Since these two issues are inter connected with each other, to avoid repetition of the facts and appreciation of the evidence, both these issues are taken together for discussion.
11. The relationship of the parties to the suit is not in dispute. It is an admitted fact that the plaintiff and defendants are the brothers and sisters and are children of late Muniyellappa and late Shankaramma @ Shankamma. Existence of the suit schedule properties is also not in dispute. During the pendency of this suit, the plaintiff has got the suit schedule item No.8 property deleted. Though it has no been properly pleaded by the plaintiffs that the suit schedule properties are ancestral joint family properties acquired by them along with late Shankaramma @ Shankamma through their father, a perusal of the certified copy of the registered partition deed dtd.02- 08-2004 marked as Ex.P.1 clearly discloses that the suit schedule properties are all ancestral joint family properties headed by the kartha late Muniyellappa and after his death, late Shankaramma @ Shankamma was managing the affairs of the same till the disputed partition deed dtd.02-08-2004 came to be entered between the parties to the suit along with late Shankaramma @ Shankamma.
9O.S.NO.3044/2012
12. It is the specific case of the plaintiff that the partition deed dtd.02-08-2004 which was entered into by herself, defendants and late Shankaramma @ Shankamma manifestly shows the domination of defendants No.1 and 2 on herself, 3rd defendant and their mother late Shankaramma @ Shankamma and their attitude towards the female members of the family, virtually dictating terms on them to receive what they have offered, otherwise to loose even the negligible share which was given to her and 3 rd defendant herein and that they have not chosen the properties, which they wanted, but, they were compelled to accept what was decided by defendants No.1 and 2 to be given to them by totally ignoring their legitimate shares and the perusal of the said partition deed further makes it clear of the intentions of the defendants No.1 and 2 to have their lion's share in the partition deed and to give them minute shares, which is an instinct of male domination on the women folks of the family, thereby rendering the said partition an inequitable and unfair partition.
13. Except these averments, nothing is forthcoming either in the pleadings or in the evidence of the plaintiff to demonstrate the said domination of defendants No.1 and 2 said to have exercised against the will of herself, 3rd defendant and their mother Shankaramma @ Shankamma and thereby they exercised undue influence to get the the said partition deed executed 10 O.S.NO.3044/2012 against to the will of herself, late Shankaramma @ Shankamma and 3rd defendant or that they played fraud or misrepresented them or coerced them to enter upon the said partition deed. Even in the evidence, being the sole witness as P.W. 1, the plaintiff has only reiterated the plaint averments by making some improvements which have not been pleaded in her plaint and except producing and marking the certified copy of the said partition deed as per Ex.P. 1, certain RTC extracts as Ex.P. 2 to P.5, mutation register extract as Ex.P. 6 and P.7, copy of legal notice as Ex.P. 8 with postal receipts a Ex.P. 9 to P.11 and certain tax paid receipts, katha transfer certificates pertaining to the suit schedule properties, Encumbrance certificate as per Ex.P. 20 to P.41 and the death certificate of Shankaramma @ Shankamma as per Ex.P. 42, the plaintiff has not even produced any material evidence before this Court to prove that the defendants No.1 and 2 were in a position to dominate the will of herself, defendant No.3 and late Shankaramma @ Shankamma and they by exercising the said position have prevailed upon them and made them to execute the said partition deed dtd.02-08- 2004 against their will.
14. That apart, perusal of Ex.P. 1 certified copy of the partition deed dtd.02-08-2004 does not disclose that the defendants No.1 and 2 have dominated the will of plaintiff, defendant No.3 and late Shankaramma @ 11 O.S.NO.3044/2012 Shankamma and they have taken lion's share as contended by the plaintiff. Per contra, the said documents discloses that more number of properties were allotted to the share of late Shankaramma @ Shankamma, however subject to some restrictions in respect of 'A' schedule items No.5 and 6 properties, where it has been recited that said Shankaramma @ Shankamma has got no right to alienate the said properties and she has been given only a life interest to enjoy the said properties and that the said properties shall be divided among defendants No.1 and 2 after her death. Though it has been recited in Clause-f of the said partition deed that 'A' schedule item No.2 property shall be divided among the defendants No.1 and 2 after her death, there is no such restrictions that has been imposed on late Shankaramma @ Shankamma from alienating or exercising her absolute right of ownership over the said property. Even if there were restrictions imposed upon the absolute right of the said Shankaramma @ Shankamma under the said partition deed dtd.02-08- 2004, then also by virtue of Sec.14(1) of Hindu Succession Act, 1956, late Shankaramma @ Shankamma became the absolute owner of the shares that were allotted to her under the said partition irrespective of the said restrictions imposed under the said partition. But for granting larger extent of share to the mother of the parties named Shankaramma @ Shankamma, a perusal of Ex.P. 1 certified copy of the 12 O.S.NO.3044/2012 partition deed dtd.02-08-2004 does not depict anything to show that illegality has been crept in while executing the said Ex.P. 1, thereby rendering that partition, as an inequitable and unfair partition deed as contended by the plaintiff.
15. That apart, during the course of her cross-
examination, P.W. 1 has clearly admitted that she along with her mother, sister and defendants No.1 and 2 appeared before the Sub-Registrar on the said date and she has not raised any objections before the Sub-Registrar when Ex.P. 1 was presented for registration and has further admitted the photos and signatures found on Ex.P.1 as that of herself and her mother, which have been marked as Ex.P. 1(a) and P.1(b). She has further admitted that she is in possession and enjoyment of the property allotted to her share and has got the khatha mutated in her name and she has not questioned the said partition on the ground that the same is unequal partition during the lifetime of her mother nor has issued any legal notice till the issuance of Ex.P. 3 in the year 2012. She has categorically admitted that she had the knowledge about the execution and existence of the said partition deed in the year 2004 itself and by producing the said partition deed, she got the khatha transferred to her name. Therefore, from the above said admission, it is clear that the execution of Ex.P. 1 was within the knowledge of the plaintiff right from 13 O.S.NO.3044/2012 the date of its execution and that based on the said partition deed, she got the khatha transferred to her name and has been enjoying the share allotted to her and others also got kathas transferred to their respective names and she remained silent for almost 8 years without questioning the same and after acting upon the said partition deed, the plaintiff has come up with this suit in the year 2012 on the ground that undue influence has been exercised by defendants No.1 and 2 and that they have dominated her will and have taken lion's share under the said partition deed, etc. without even furnishing the particulars of so called undue influence said to have been exercised by the defendants No.1 and 2. Hence, at this length of time, the plaintiff cannot question the said partition on the ground that it is inequitable and unfair and seeking for reopen of the said partition as she is estopped from claiming the same as rightly argued by the counsel for the defendants who has relied on the decision reported in AIR 1992 Kerala 397 in the matter between Damodaran Kavirajan & Others Vs.T.D.Rajappan, wherein it has been held as under:
Transfer of Property Act (4 of 1882), S.6(a), S.122-Spes Succession is -Reight can be alienated by family arrangement- Gift Deed in favour of a heir, executed to settle dispute between family on a condition that heir would not claim his share in other properties- Gift Deed accepted and acted upon is a family arrangement- Heir estopped from claiming 'Share' in the property. Evidence Act (1) of 1872), S.115-Hindu Law-Family arrangement-14
O.S.NO.3044/2012 fixed deposits executed in favour of heir to settle family dispute on condition that donee shall forgo his right of inheritance -Though termed as Gift Deed it is a family arrangement. Estoppel
-Applicability, in claiming right of inheritance.
16. Though during the course of arguments, the counsel for the plaintiff vehemently argued that partition can be reopened at any point of time irrespective of the length of time if it is proved to be unjust, unfair and inequitable and improper detrimental to the interest of minors and shareholders and relied on the decision reported in 1999(3) R.C.R.(Civil) 262 in the matter between A. Ganapathi Nayak Vs. Devanatha. On the other hand, the counsel for the defendants vehemently argued that unless it is shown that the consent of the plaintiff is obtained by fraud, coercion or misrepresentation or undue influence, the partition effected between the members of the Hindu Undivided Family by their own volition and by their consent cannot be reopened and in such a case, the Court should require a strict proof of facts, because an act inter vivos cannot be set aside and relied upon the decision of the Hon'ble Supreme Court of India reported in AIR 1976 SC 214 in the matter between Ratnam Chettiar & Others Vs. M.Kuppuswamy Chettiar and others and also the recent decision of the Hon'ble High Court of Karnataka passed in RFA No.313/2008 in the matter between Smt.R.Chanalakshmi Vs. P.Gopal and others, wherein 15 O.S.NO.3044/2012 the Hon'ble High Court of Karnataka by relying upon the above referred judgment of the Hon'ble Supreme Court of India refused to reopen the partition. The facts of the said case is exactly similar to the facts of this case, wherein also the plaintiff after acting upon the partition deed dtd.01-10-1982 has questioned the said partition in the year 1995 on the ground that the said partition is unequal partition and Hon'ble High Court of Karnataka has held that the plaintiff in the said case has not made out any grounds for reopen of the partition and the said suit is also barred by limitation as she has not questioned the said partition within a period of 3 years. In this case also, the plaintiff has questioned the said partition after long gap of nearly 8 years despite having knowledge of the same and having acted upon the same, she has come up with this suit in the year 2012, which is on the face of the records barred by limitation as held by the Hon'ble High Court of Karnataka apart from being meritless in view of the failure of the plaintiff to specifically plead by giving the necessary particulars in terms of Order VI Rule 4 of C.P.C. regarding the fraud, misrepresentation, undue influence, coercion played by the defendants No.1 and 2. Hence, this Court is of the opinion that the plaintiff has thoroughly failed to prove that the defendants have obtained her consent by dominating on her will by dictating terms to her and that the said partition is inequitable and unfair. Even during the course of 16 O.S.NO.3044/2012 cross-examination of D.W. 1, she has failed to elicit any admissions from him. As such, there is no hesitation for this Court to answer issues No.1 and 2 in the negative. Accordingly, I answer issues No.1 and 2 in the negative.
17. ISSUE NO.3:- This issue has already been answered by the learned Predecessor in office on 12-02-2014 in the negative and the learned Predecessor in office had already directed the plaintiff to value the suit under Sec.35(1) of The Karnataka Court Fees and Suits Valuation Act, 1958 and to pay the ad-valerum Court Fees on the market value of the suit schedule properties and the plaintiff has also complied the said order by filing fresh valuation slip valuing the suit under Sec.35(1) of The Karnataka Court Fees and Suits Valuation Act, 1958 and paying the requisite Court Fees. Since, the learned Predecessor in office has already answered this issue and plaintiff has rectified the valuation made by her, the question of re- considering the said issue does not arise as the same does not survive for consideration.
18. ADDL. ISSUE NO.1:- It is the specific case of the defendants that their mother late Shankaramma @ Shankamma during her life time has bequeathed some of the properties which she got under the registered partition deed dtd.02-08-2004 in favour of defendants No.1 and 2 by executing a Will dtd.22-01- 17 O.S.NO.3044/2012 2009 and this fact was not within their knowledge till September 2018 when they discovered the said Will dtd.22-01-2009 while searching for the documents in respect of the properties allotted by BDA in favour of their mother at Hosur-Sarjapur Road, Sector No.3 and as such, immediately after discovering the same, they approached the scribe and witnesses and got confirmed about the same and thereafter, by way of amendment, they have set up the above defence regarding the execution of the said Will without any delay.
19. To prove the due execution of the same, one of the propounders of the said Will named Nandakumar who is the 2nd defendant got examined himself as D.W.1 while reiterating the said averments in advance much earlier to the amendment in the pleadings and got marked the said Will as per Ex.D. 3 and also got examined two witnesses named R.Manju and Madusudhan as D.Ws.2 and 3 who have deposed about the execution of the said Will by late Shankaramma @ Shankamma by filing their examination-in-chief affidavits, which are almost similar to each other, wherein they have expressly stated that after receiving the summons from this Court, they came to know that they are the witnesses to the said Will dtd.22-01-2009 executed by late Shankaramma @ Shankamma by recollecting their memories and that late Shankaramma @ Shankamma 18 O.S.NO.3044/2012 who was residing in Ejipura and the defendants No.1 and 2 who are her sons are very well known to them and on one day when they went to the house of late Shankaramma @ Shankamma to purchase the milk from her, as they do every day, late Shankaramma @ Shankamma had called them stating that she would be going to execute a Will in favour of her two sons in respect of properties bearing Nos.10,13,14 and Sy.No. 54 and on 27-01-2009 D.W. 2 went to her house, one lady Advocate was present in her house with a typed Will, at which time, D.W. 3 Madhusudhan also came there and late Shankaramma @ Shankamma requested both of them to put their signatures on the Will and thereafter, the Advocate asked them that she will read the contents of the last Will of Shankaramma @ Shankamma, they heard the said Will, which was in English language and she translated into Kannada language and explained contents of the said Will, thereafter, the said lady Advocate took the LTM of Shankaramma @ Shankamma in all the pages of Ex.D. 3 Will in 6 places and after getting the LTM of late Shankaramma @ Shankamma, the said lady Advocate requested D.W. 2 R.Manju to put his signature first on the Will along with his address and after D.W. 2 affixing the signature with address, she requested D.W. 3 to affix his signature with his address and accordingly, he has also affixed his signature and at the time of execution of the said Will, there were no other persons in the house of 19 O.S.NO.3044/2012 Shankaramma @ Shankamma except the said 4 persons and they have further stated that Shankaramma @ Shankamma had affixed her LTM before them.
20. Except deposing as stated above, they have not stated anything else in their examination-in-chief affidavits and they have only identified the LTMs of said Shankaramma @ Shankamma and their respective signatures found on Ex.D. 3. They have not even identified the signatures of the said scribe or lady advocate nor they have identified the signatures of each others. They have not even stated anything about the mental condition and physical fitness of late Shankaramma @ Shankamma. Apart from that, they have not even deposed that the contents of the said Will were read over and explained to late Shankaramma @ Shankamma by the said lady Advocate and thereafter, late Shankaramma @ Shankamma by understanding the contents of the said Will and nature of the disposition of the properties under the said Will and understanding the consequences and effects of executing the said Will, has voluntarily affixed her LTM in their presence and they have affixed their signatures before the said Shankaramma @ Shankamma, which is the essential requirement to prove the due execution of the said Will and all these facts have not been stated anywhere in their examination-in-chief affidavits nor they have 20 O.S.NO.3044/2012 deposed in their further examination-in-chief at the time of marking the said Will.
21. A perusal of the cross-examination of D.Ws.2 and 3 also does not inspire the confidence of this Court that D.Ws.2 and 3 are trustworthy witnesses and are speaking the truth and that they have witnessed the due execution of the Will by late Shankaramma @ Shankamma on the alleged date of execution i.e. 22- 01-2009 which creates doubt in the mind of this Court about the genuineness of Ex.D. 3. Admittedly, D.Ws. 2 and 3 are aged 37 and 39 and are admittedly friends to defendants No.1 and 2, who are also more or less of the same age. In their examination-in-chief, they have stated that they used to go to the house of Shankaramma @ Shankamma every day to purchase the milk from her, whereas D.W.2 during the course of his cross-examination has stated that he used to give milk to deceased Shankaramma @ Shankamma every day and on 22-01-2009, when he went to give milk to Shankaramma @ Shankamma in the morning at about 7 a.m., she asked him to come by 12 to 12.30 p.m. and accordingly, he again went to her house at that time and the Will was executed by late Shankaramma @ Shankamma in the afternoon which is quite contrary to his examination-in-chief affidavit, where he has stated that when he went to purchase the milk on that date as usually he does, at which 21 O.S.NO.3044/2012 point of time, one lady advocate was already present with Shankaramma @ Shankamma and by that time, D.W. 3 also came and Shankaramma @ Shankamma requested him and D.W. 3 to put their respective signatures on the Will and as such, they have affixed their signatures. According to them, no conversation took place between them when they affixed their signatures to the said Will and the lady advocate read the contents of the Will and explained the same to Shankaramma @ Shankamma before she affixing her LTM, but both of them have not stated as to who was the said lady advocate who was present on that date and explained the contents of the same to them and late Shankaramma @ Shankamma.
22. A perusal of Ex.D. 3 discloses that the same was scribed by one M.L.Shreemathi who has not mentioned anything about her capacity before affixing her signature as scribe. She has not even affixed her signature, but she has only mentioned her name with address. No where it is mentioned that the said scribe was an advocate or that she is a licensed Deed Writer. The said scribe has also not been examined by the defendants for the reasons best known to them. Against to the evidence of D.Ws.2 and 3, it has been mentioned in Ex.D. 3 Will by the scribe that late Shankaramma @ Shankamma has gone through the contents of the Will, understood the contents of the same and thereafter, has affixed her LTM in their 22 O.S.NO.3044/2012 presence. That apart, D.W.3 has also stated that he do not know who gave instructions to prepare his examination-in-chief affidavit and the same was prepared by the Advocate, while he was in Court Hall and he has not even appeared before the Oath Commissioner who has affixed his signature and seal with a certificate regarding admission of the contents of the examination-in-chief affidavit. Neither D.W. 2 has identified the signature of D.W. 3 nor D.W. 3 has identified the signature of D.W. 2 during the course of their respective evidence.
23. Above all these, a valid and genuine doubt arises in the mind of this Court as to why late Shankaramma @ Shankamma has choosen these D.Ws.2 and 3 alone as attesting witnesses to Ex.D. 3, who were very young and aged almost similar to that of defendants No.1 and 2 and why she has not chosen any persons very well known to her and are of the age contemporaneous to her age. Even D.W. 1 has not removed the various suspicious circumstances which surrounded the Will by giving proper explanation during the course of his evidence. He has not even properly explained as to how he discovered the Ex.D. 3 Will after such a long gap of time from the date of filing the written statement that too during the stage of his evidence. Admittedly, Ex.D. 3 is prepared on plain sheet of papers and had not seen the light of the day till 2018-19 which also adds as one of suspicious 23 O.S.NO.3044/2012 circumstances regarding its genuineness and chance of fabrication. In view of the defendants failing to examine the scribe of the said Will who has drafted the said Will in English language and in view of the absence of proper explanation as to why the said Will was prepared in English language only when admittedly the deceased Shankaramma @ Shankamma was an illiterate lady who not even knew how to read and write Kannada language also which was her mother tongue, the suspicion regarding absence of knowledge, consent and free will of late Shankaramma @ Shankamma while affixing her LTM over the Will also remained unexplained by the defendants.
24. During the course of arguments, the counsel for the plaintiff has raised several doubts, which point out that the said Will is surrounded by several suspicions causing serious aspersions on the genuineness of the said Will like why the testatrix has executed the said Will in English language and that the time gap between the date of execution of the alleged Will and the date of death of testatrix is too short as she died on 29-04-2009 within a short span of 3 to 4 months, which creates suspicion about the physical fitness and mental soundness of late Shankaramma @ Shankamma to execute the said Will and that she was not maintaining good health during those days, why the defendants have relied upon the said Will at the 24 O.S.NO.3044/2012 fag end of the proceedings and have kept silent for all these 9 years 5 months and why the said scribe has not been examined, etc. and relied on various decisions on this field regarding the principles laid down by the Hon'ble Supreme Court of India and various other Hon'ble High Courts as to what tests should be held to find out the truthfulness and genuineness of the said Will as follows:
1. AIR 1990 SC 396 in the matter between Kalyan Singh V. Chhoti.
2. 1974 AIR (SC) 1999 in the matter between Surendra Pal Vs. Dr.Saraswati Arora.
3. AIR 1965 SC 354 in the matter between Ramchandra Vs. Champabai.
4. 2007(1) AIR KAR R 467 in the matter between S.B.Ittigi & another Vs. Smt.S.V.Sulochana & Others.
5.2007(5) R.C.R.(Civil) 720 in the matter between P.Kotteeswaran Vs. A.Shanmugam & Others.
6. AIR 2001 SC 3062 in the matter between Palchuri Henumayamma V. Tadikamalla Kotlingam.
7. 2017(1) KCCR 737 in the matter between Hanumanthappa Vs. G.Jagadeesha.
8.AIR 1990 SC 1742 in the matter between Rampiari Vs.Bhagwant.
25. On the other hand, the counsel for the defendants vehemently argued that the execution of the said Will was not within the knowledge of any of the parties to this suit until recent past and as such, the execution of the said Will was not made known during the time of filing their written statement and the fact that the plaintiff and defendants joined together in selling the 25 O.S.NO.3044/2012 suit schedule item No.8 property as per Ex.D. 1 in favour of M/s. Astro Land Developers clearly demonstrates that neither the plaintiff nor the defendants were aware about the execution of the said Will by late Shankaramma @ Shankamma and if the defendants had the knowledge about the execution of the said Will at the earliest point of time itself, there was no necessity for them to join hands with the plaintiff to sell the suit schedule item No.8 property in respect of which also, Ex.D. 3 Will was executed by late Shankaramma @ Shankamma and that at the time of executing the said Will, the testatrix has assigned proper reason as to why she has not bequeathed any properties in favour of plaintiff and defendant No.3 and nothing has been elicited from the mouth of D.Ws. 2 and 3 to discredit their evidence who have clearly stated that late Shankaramma @ Shankamma had validly executed Ex.D. 3 Will and they have affixed their signatures in her presence and that they have also stated that late Shankaramma @ Shankamma was mentally sound and in view of the said evidence of D.Ws.2 and 3, non-examination of the scribe is not fatal to the case of the defendants and in support of his arguments, he has relied on the following decisions:
1. 2012(3) KCCR SN 98 (SC) in the matter between Mahesh Kumar (dead)by Lrs. Vs. Vinod Kumar.
2. 2014 (3) KCCR 2067 in the matter between Krishna Shankar Mirjankar Vs. Vasantala Kom Vimalanand Mirjankar.26
O.S.NO.3044/2012
3. 2011 (3) KCCR 1757 (DB) in the matter between Padmanabha Shenoy Vs. Dr.Premachandra Shenoy.
4. Civil Appeal No.6801/2003 in the matter between Gopal Swaroop Vs. Krishna Murari Mangal & ors.
5. 2014 (2) KCCR 1105 in the matter between Mrs.Maya Akber Vs. Mrs.Rani Menon.
6. ILR 2008 KAR 2115 in the matter between Sri.J.T.Surappa & Anr. Vs. Sri. Satchidhanandendra SSPCT & Ors.
7. AIR 1964 SC 529 in the matter between Shashikumar Banerji & Others Vs. Subhodh Kumar Banerji & Others.
26.The arguments canvassed by the counsel for the plaintiff appears to be more sound and acceptable than the arguments canvassed by the counsel for the defendants as the defendants have failed to dispel all the suspicious circumstances surrounding the execution of Ex.D. 3 Will as rightly pointed out by the counsel for the plaintiff. As per the tests laid down by Hon'ble Supreme Court of India in the leading case of H. Venkatachala Iyengar Vs. B. N. Thimmajamma & Others, this Court is of the opinion that the defendants No.1 and 2 being the propounders of Ex.D. 3 Will have failed to dispel the valid and legal suspicions which are surrounding the said Will said to have been executed by late Shankaramma @ Shankamma.
27. When admittedly, late Shankaramma @ Shankamma had no ill-will towards the plaintiff and defendant 27 O.S.NO.3044/2012 No.3 and she used to treat her children equally, what made her to bequeath several properties which fell to her share in the registered partition deed in favour of defendants No.1 and 2 only has not been properly explained. The explanation in the said Will that daughters are married and that they are well placed and that they have been given with a share in partition deed though appears to be a little bit satisfactory explanation to dislodge the plaintiff and 3rd defendant from natural succession, since the same is in English language and since the witnesses and the defendants have thoroughly failed to prove before this Court that late Shankaramma @ Shankamma was hale and healthy at the time of executing the said Will and she was mentally sound and that the contents of the said Will were read over and explained to her and she after understanding the contents of the same, has affixed her LTMs on the said Will with a clear intention to give effect to the terms written in the said document, this Court is of the opinion that the defendants have thoroughly failed to prove the due execution of the said Will. Hence, there is no hesitation for this Court to answer issue No.1 in the negative. Accordingly, I answer issue No.1 in the negative.
28. ISSUE NO.5:- A perusal of the prayer sought by the plaintiff in this suit discloses that the plaintiff has 28 O.S.NO.3044/2012 only sought for reopen of the partition deed dtd.02- 08-2004 on the ground that the same is inequitable and unfair and her signature was obtained by the defendants No.1 and 2 by dominating on her will and exercising undue influence,etc. This Court while answering issues No.1 and 2 in the negative has already held that the plaintiff has thoroughly failed to prove that the said partition deed dtd.02-08-2004 was inequitable and unfair and her consent was obtained by the defendants by dominating on her will by dictating terms to her as contended by her. Hence, the plaintiff is not entitled for the relief of partition by reopening the earlier partition deed dtd.02-08-2004. However, during the course of arguments, the counsel for the plaintiff has argued that even if this Court comes to the conclusion that the plaintiff has failed to make out a ground for reopening the partition, then also the plaintiff is still entitled for the relief of partition in respect of the suit schedule items No. 1 to 7 properties left by the mother of the plaintiff and defendants named Shankaramma @ Shankamma, which were allotted to her under the said partition deed in 'A' schedule of the said partition deed in view of her intestate death leaving the plaintiff and the defendants as her natural legal heirs to succeed to the same as the defendants have failed to prove the due execution of the alleged Will said to have been executed by late Shankaramma @ Shankamma and this Court can still grant the relief of partition by 29 O.S.NO.3044/2012 moulding the relief instead of dragging the parties to face one more round of litigation and the plaintiff is entitled for 1/4th share over the suit schedule item No.1 to 7 properties and therefore, he prayed to decree the suit at least in respect of the properties left by late Shankaramma @ Shankamma and in support of his arguments, he relied upon the decision reported in 2007 AIR (SC) 2048 in the matter between Addl.General Manager/Human Resource Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde, wherein the Hon'ble Supreme Court of India has held that it is always open to the Court to mould the relief which may appear to be just and proper in the facts and circumstances of the case.
29. On the other hand, the counsel for the defendants vehemently argued that since the plaintiff has thoroughly failed to prove that the said partition deed is an unequal partition and that her signature was obtained without her consent and since the plaintiff has not filed the suit well within 3 years from the date of execution of the said partition deed, the claim made by the plaintiff for reopen of the partition cannot be entertained and the same is liable to be dismissed and in view of the due execution of the Will by late Shankaramma @ Shankamma bequeathing the properties allotted to her under the said partition in favour of defendants No.1 and 2 and in view of the defendants proving the due execution of the said Will, 30 O.S.NO.3044/2012 the plaintiff is not entitled for the said relief of partition in respect of the said properties left by late Shankaramma @ Shankamma also and therefore, prayed to dismiss the suit.
30. This Court while answering additional issue No.1 in the negative has already held that the defendants have failed to prove the due execution of the Will dtd.22-01-2009 by late Shankaramma @ Shankamma. Hence, in view of the failure of the defendants to prove the due execution of the said Will, this Court is well within its jurisdiction to grant the said equitable relief of partition at least in respect of the properties allotted to the share of late Shankaramma @ Shankamma under the said registered partition deed dtd.02-08-2004 by moulding the relief relying on the decision of the Hon'ble Supreme Court of India instead of dragging them to face one more round of litigation as admittedly the plaintiff and defendants have understood the nature of the case put forth by the plaintiff and the defence set up by the defendants by anticipating the powers of this Court to grant the moulded relief of partition in respect of the said properties left by late Shankaramma @ Shankamma.
31.That apart, a perusal of Ex.D. 3 and the defence set up by the defendants clearly discloses that all the 31 O.S.NO.3044/2012 properties allotted to late Shankaramma @ Shankamma under Ex.P.1 partition deed were not the subject matter of Will said to have been executed by late Shankaramma @ Shankamma and only 'A' schedule items No.3, 4, 7 and 8 of the said partition deed were the subject matter under the said Will and admittedly there was no bequest made in respect of the remaining properties, which were allotted to late Shankaramma @ Shankamma in the said partition, where under she was allotted totally 8 items. Admittedly, during the pendency of this suit, the plaintiff and defendants have jointly executed the Sale Deed in respect of plaint schedule item No.8 property, which was the 8th item in 'A' schedule in the said partition deed allotted to late Shankaramma @ Shankamma and thereafter the plaintiff has got the suit schedule item No.8 property deleted by way of amendment. Hence, the said property is not available for partition.
32. Though the plaintiff has got the suit schedule item No.15 added by amending the plaint which was not the subject matter of the said partition deed, since the defendant No.2 has already alienated the same in favour of one Mohamed Shahid under a Sale Deed dtd.28-04-2014 and since the plaintiff has already executed a deed of confirmation on 05-06-2014 as per Ex.D. 2 admitting that she has no right over the said property and thereby confirming the ownership of the 32 O.S.NO.3044/2012 said Mohamed Shahid over the same, the plaintiff is not entitled for partition in respect of the suit schedule item No.15 as the same is also not available for partition.
33. So far as suit schedule item No.2, 5 and 6 properties are concerned, though there are recitals in Ex.P. 1 partition deed to the effect that late Shankaramma @ Shankamma shall enjoy the same during her life time and after her death, the same shall be divided among defendants No.1 and 2 by creating life estate in her favour, as discussed above while answering issues No.1 and 2, the said conditions imposed on late Shankaramma @ Shankamma are void in nature and is hit by the provisions of Sec.14(1) of Hindu Succession Act, 1956, by virtue of which, the said limited rights given to late Shankaramma @ Shankamma has been enlarged into absolute right as held by the Hon'ble Supreme Court of India in the decision reported in 1977 (3) SCC 99 in the matter between V. Tulasamma & Ors vs V. Sesha Reddi (Dead) by L.Rs., wherein it has been held as follows:
"14(1) and the Explanation thereto of the Hindu Succession Act, 1956 provide that any property possessed by a female Hindu, whether acquired before or after the commencement of the 1956 Act, shall be held by her as full owner thereof and not as a limited owner.; and that 'property' includes both movable and immovable property acquired by her by inheritance or devise, 33 O.S.NO.3044/2012 or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether from a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in an other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of the 1956 Act. The language is in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the Act and promote the socio-economic ends, namely, to enlarge her limited interest to absolute ownership in consonance with the changing temper of the times sought to be achieved by such a long legislation.
34. As such, late Shankaramma @ Shankamma had acquired the absolute right over all the 'A' schedule items No.1 to 8 properties allotted to her under the said partition deed and since the defendants have failed to prove the due execution of the Will, the plaintiff and defendants No.1 to 3, being the daughters and sons of late Shankaramma @ Shankamma succeeded to the said properties left by her and as per the provisions of Secs.15 and 16 of Hindu Succession Act, 1956, all of them are entitled for ¼ share each over the plaint schedule items No.1 to 7 properties only. Hence, the plaintiff is entitled for the moulded relief of partition and separate possession of her 1/4th share in the schedule items No.1 to 7 properties only and the suit in respect of other schedule properties needs to be dismissed. Hence, with these observations, I answer issue No.4 partly in the affirmative.
34O.S.NO.3044/2012
35. ISSUE NO.5:- In view of the above discussion and my findings on the above issues, the suit of the plaintiff deserves to be decreed in part. Accordingly, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed in part.
The plaintiff is entitled for partition and separate possession of her 1/4th share over the suit schedule items No.1 to 7 properties alone and the defendants are also entitled for 1/4th share each over the same.
The suit in respect of the plaint schedule items No.9 to 15 is hereby dismissed as they have already partitioned. The defendants are hereby directed to effect partition and separate possession of the suit schedule items No.1 to 7 properties and put the plaintiff in separate possession of her 1/4th share over the same by metes and bounds.
In view of the facts and circumstances of the above case, both the parties are hereby directed to bear their respective costs.
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this THE 20 th DAY OF JANUARY 2021).
[ (MAANU K.S.), XXX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.35
O.S.NO.3044/2012 ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W.1 Smt.Nagaveni M. WITNESSES EXAMINED FOR THE DEFENDANTS/S:
D.W.1 M.Nanda Kumar. D.W.2 R.Manju. D.W.3 A. Madhusudan.
DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 Certified copy of Partition Deed dtd.02-08-2004. Ex.P.1(a) & (b) Photograph & Signature.
Ex.P.2 to 5 RTCs. Ex.P.6 & 7 Mutation Register extract. Ex.P.8 Notice dtd.10-02-2012. Ex.P.9 to 11 Postal receipts. Ex.P.12 to 15 Endorsement issued by BBMP. Ex.P.16 to 19 Receipt issued by BBMP. Ex.P.20 to 35 Tax paid receipts. Ex.P.36 & 37 Applications for transfer of Khatha. Ex.P.38 to 41 Encumbrance certificates. Ex.P.42 Death certificate Ex.P.43 Certified copy of Sale Deed dtd.12-10-1957. Ex.P.43(a) Typed copy of Ex.P.43.
DOCUMENTS MARKED FOR THE DEFENDANTS/S:
Ex.D.1 Certified copy of Sale Deed dtd.01-09-2014. Ex.D.2 Certified copy of Deed of Confirmation dtd.05-06-2014.
Ex.D.3 Will dtd.22-01-2009.
Ex.D.3(a) to (h) Signatures & LTMs.
Ex.D.4 to 28 Tax paid receipts & Challans.
(MAANU K.S.),
XXX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.