Bangalore District Court
K Ravindranath vs K Lakshminarasamma on 3 September, 2025
KABC0A0029042006
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
Dated this the 3rd day of September, 2025.
PRESENT:
Sri BALAPPA APPANNA JARAGU, B.Sc., LL.B.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.17098/2006
PLAINTIFF : K. Ravindranath
Aged about 52 years,
S/o. Late Lakshminarayana Setty,
Residing at No.87, 8th cross,
1st 'N' Block, Rajajinagar,
Benglauru.
(By Sri P. Arun Kumar, Advocate)
-VERSUS-
DEFENDANTS : 1. Smt. K. Lakshminarasamma
Aged about 82 years,
W/o.Late Kota Krishnaiah Setty,
Residing at No.258, 9th Main,
2nd Cross, Vijayanagar,
Bengaluru.
Cont'd..
2 O.S.No.17098/2006
2. K. Nagaraj,
(Since deceased by his LR's)
2(a). Smt .K.N. Bharathi
W/o. Late K. Nagaraj,
Aged about 65 years,
Residing at No.24, 5th Main,
5th Cross, Sampangirama Nagar,
Bengaluru.
2(b). Smt. Patti Phanishree
D/o. Late K. Nagaraj,
Aged about 32 years,
R/at Ramakrishna Extension,
Srinivaspura-563135,
Kolar District.
3. K. Dwarkanath,
Aged about 40 years,
S/o. Late.Kota Rathnamaiah Setty,
Residing at No.1, 5th Cross,
near Sultanpalya Bus Stand,
Sultanpalys, R.T.Nagar Post,
Bengaluru.
Since deceased represented his
Legal Representatives.
3(a). Smt. K. Savitha,
W/o. Late. D. Dwarakanath,
Aged about 45 years.
3(b). Miss. Maithri K.,
D/o. Late K. Dwarakanath,
Aged about 18 years.
Both are residing at
No.13, 8th cross,
Hanumanthappa Layout,
Sulthan Palya, Near Bus Stop,
R.T.Nagar Post, Bengaluru-560 032.
4. M. Samraj,
Aged about 31 years,
S/o. Murugesan,
Residing at No.15GF, Rukmini Illam,
3rd Cross, Sir.M.V.Nagar,
Ramamurthynagar, Bengaluru - 560 016.
3 O.S.No.17098/2006
5. C. Samraj,
Aged about 29 years,
S/o. Chinnaraj
Residing at No.15GF, Rukmini Illam,
3rd Cross, Sir.M.V.Nagar,
Ramamurthynagar, Bengaluru-560 016.
6. M. Ramaiah,
Aged about 37 years,
S/o. Late Munishamappa,
Residing No.24, Old No.99, 6th Main,
2nd Block, Sir.M.V.Nagar,
Ramamurthynagar, Bengaluru-560 016.
7. K. Ramkumar,
S/o. Late Kota Rathnamaiah Setty,
Aged about 59 years,
Residing at No.975, 13th Cross,
Aiyappa Block, Manorayana Palya,
R.T.Nagar, Benglauru- 560 032.
8. K.R. Nagendra Prasad,
S/o. Late K. Rajagopal,
Aged about 48 years,
Advocate No.22,
Kumara Park West, Central Street,
Bengaluru.
(D.1 - Sri. B.S.K.R,
D2(a) & (b)- Sri Nanda Kishore J.,
D3(a) & (b)- Sri Srinivasa Gowda,
D6 by Sri S.N, D8 by Sri S.M., Advocates)
(D2- Dead, D3 - Dead, D4 & D5- Ex-
parte, D7-absent)
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Date of Institution of the Suit : 03-11-2006
Nature of the Suit (Suit on : Partition Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
Date of the commencement : 03-10-2018
of recording of the evidence
4 O.S.No.17098/2006
Date on which the Judgment : 03-09-2025
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 18years, 10months, --days.
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(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
JUDGMENT
This suit is instituted by the plaintiff against the defendants for the relief of partition and separate possession of his 1/4 share in suit schedule mentioned properties by metes and bounds. The plaintiff further sought for declaration to declare, sale deed dated 11.03.2004 executed by defendant No.1 in respect of suit properties in favour of defendants No.4 to 6 are null, void and not binding on share of plaintiff in suit properties.
2. The case of the plaintiff's in brief is as under:-
That, Kota Krishnaiah Setty and his brothers have jointly purchased Sy.No.65, situated at Kowdenahalli 5 O.S.No.17098/2006 Village, K.R. Puram Hobli, Bengaluru South Taluk under registered sale deed dated 26.04.1967. Subsequently, there was partition between them and four sites were allotted to Kota Krishnaiah Setty under registered partition deed dated 24.10.1973. Kota Krishnaiah Setty during his lifetime executed last Will on 10.05.1978 bequeathing one site to plaintiff and each one site to other beneficiaries under Will. Kota Krishnaiah Setty died on 21.05.1978 without issues leaving behind defendant No.1 and plaintiff to succeed his estate. The plaintiff is in joint possession and enjoyment of suit properties. The defendant No.1 in collusion with defendant No.2 and showing defendant No.2 as adopted son, without consent of plaintiff has sold suit item No.1 property to defendant No.4 and 5 and like wise sold suit item No.2 property to defendant No.6 under sale deeds dated 11.03.2004. The defendant No.1 did not have any exclusive and independent right over suit properties so as to alienate these suit properties in favour of defendants No.4 to 6. Sale of suit properties by defendant No.1 in favour of defendants No.4 to 6 is not binding on share of plaintiff 6 O.S.No.17098/2006 in suit properties. On these pleadings, the plaintiff has prayed to decree suit as prayed in plaint.
3. In response to the service of suit summons, defendants No.1, 2, 6 and 8 have tendered their appearance before the court through their respective counsels and contested the case. Even after service of suit summons, defendants No.2 to 5 and 7 not appeared before the court and contested the case. During pendency of suit, original defendant No.2 and 3 died, by filing necessary application their LR's are brought on record. The defendants No.2(a), 2(b), defendants No.3(a) and 3(b) after service of suit summons, they have appeared before court. The defendants No.1, 2, 6 and 8 have filed separate written statement. Even after sufficient opportunities, the defendants No.2(a), 2(b), defendants No.3(a) and 3(b), have not filed written statement.
4. The contents of written statement of defendant No.1 in brief are as under:-
That, defendant No.1 has admitted that, Kota Krishnaiah Setty and others have purchased Sy.No.65 7 O.S.No.17098/2006 of Kowdenhalli Village under registered sale deed dated 26.04.1967. Further it is admitted, there was partition deed between Kota Krishnaiah Setty and others dated 24.09.1973 in which suit properties fallen to the share of Kota Krishnaiah Setty. It is admitted by defendant No.1 that, Kota Krishnaiah Setty during his lifetime executed Will dated 10.05.1978 bequeathing suit properties in favour of plaintiff and others as mentioned in Will. It is specifically contended by defendant No.1 that, she has not sold any properties as alleged in plaint and she has not received any sale consideration amount. She executed some papers written in English language in good faith at behest of defendant No.2. The defendant No.1 does not know reading and writing English language. The defendant learnt about execution of sale deeds in favour of defendants No.4 to 6 first time through instant case. On these grounds, the defendant No.1 supported case of plaintiff.
5. The contents of written statement of defendant No.2 in brief are as under:-
That, suit of the plaintiff is not maintainable either in law or on facts. The defendant No.2 has lost 8 O.S.No.17098/2006 his parents in childhood and his education and welfare taken care by late Kota Krishnaiah Setty and defendant No.1 herein. He is foster son of late Kota Krishnaiah Setty and defendant No.1 as they have no issues. Suit properties are individual property of defendant No.1, she acquired same from her husband after his death, as such question of collusion between defendant No.1 and 2 in alienation of suit properties in favour of defendants No.4 to 6 does not arise. The defendant No.1 has sold suit properties in favour of defendants No.4 to 6, at that time purchasers have insisted defendant No.2 to sign as consenting witnesses because defendant No.2 is brought up by defendant No.1 and her husband late Kota Krishnaiah Setty. Considering request of purchasers, defendant No.2 signed sale deeds as consenting witness. The defendant No.2 has denied execution of alleged Will as per Ex.P.3 by late Kota Krishnaiah Setty during his lifetime. It is specifically contended that, K. Rathnamaiah Setty, K. Lakshminarasimalu were still alive till 2009 and plaintiff knowing fully well about same, he has not made these persons as parties to the suit. It is further 9 O.S.No.17098/2006 contended, defendant No.1 died on 30.06.2011, this fact not brought to the notice to court by plaintiff. The defendant No.1 was staying with plaintiff during her lifetime. The plaintiff and defendant No.1 colluded each other and filed present false suit. Will relied by plaintiff is fabricated and forged one. On these grounds, the defendant No.2 has requested to dismiss suit of plaintiff with costs.
6. The contents of written statement of defendant No.6 in brief are as under:-
That, suit of the plaintiff is not maintainable either in law or on facts. Plaintiff is no way concerned to family of late Kota Krishnaiah Setty. It is denied that, late Kota Krishnaiah Setty during his lifetime executed Will dated 10.05.1978. Alleged Will on which plaintiff is relied upon is forged and fabricated document created by plaintiff in order to make false claim over suit properties. Kota Krishnaiah Setty died on 21.05.1978 leaving behind defendant No.1 as his only legal heir. In order to claim an estate of late Kota Krishnaiah Setty, plaintiff set up false relationship with defendant No.1. The defendant No.1 received sale 10 O.S.No.17098/2006 consideration amount and executed sale deeds in respect of suit properties on 11.03.2004 and put up purchasers in possession of suit properties. The defendant No.6 has sold suit item No.2 property in favour of Balaji and Lokesh Babu under registered sale deed. There is no cause of action for plaintiff to file present suit. On these grounds, defendant No.6 has requested to dismiss suit of plaintiff with costs.
7. The contents of written statement of defendant No.8 in brief are as under:-
That, suit of the plaintiff is not maintainable either in law or on facts. Plaintiff and defendants No.1 to 3 are not joint family members and suit schedule properties are not joint family properties. There is no joint possession of plaintiff and defendants No.1 to 3 in respect of suit properties. Suit schedule properties were alienated by defendant No.1 much prior to filing of suit. Plaintiff and defendants No.2 and 3 are not children of Kota Krishnaiah Setty. Hence, question of succession or joint status of property of Kota Krishnaiah Setty by plaintiff and defendants No.2 and 3 does not arise. Kota Krishnaiah Setty has not executed 11 O.S.No.17098/2006 alleged Will dated 10.05.1978. Plaintiff has forged signature of late Kota Krishnaiah Setty and filed present false suit. Alleged Will is brain child of plaintiff in collusion with defendant No.1 for the purpose of filing present suit. Defendant No.1 has already alienated suit properties in favour of defendants No.4 to 6. After death of Kota Krishnaiah Setty, defendant No.1 having succeeded to suit properties executed registered sale deeds in respect of suit properties in favour of defendants No.4 to 6. There is no cause of action for plaintiff to file present suit. On these grounds, defendant No.8 has requested to dismiss suit of plaintiff with costs.
8. On the basis of above pleadings of both parties, this court has framed the following :-
ISSUES
1. Whether the plaintiff's prove that Late.
Kota Krishnaiah Shetty acquired the suit schedule property through a partition deed dated 24.10.1973, who executed a Will on 10.05.1978 in respect of one Site, after the death of him the plaintiff, defendant No.1 to 3 succeeded to the suit schedule 12 O.S.No.17098/2006 property jointly, wherein the plaintiff is having a share?
2. Whether plaintiff's are entitle for 1/4th share?
3. Whether the defendants prove that the Will dated 10.05.1978 is forged and fabricated document created by the plaintiff?
4. Whether the defendant No.6 proves that, he being the purchaser of the suit schedule property from the defendant No.1 who is absolute owner in possession of the same?
5. What order or decree?
ADDITIONAL ISSUES
1. Whether the defendant No.2 proves that the suit is not proper value and court fee paid is in sufficient?
2. Whether the suit is bad for non-joinder and mis-joinder of parties?
3. Whether suit there is no cause of action?
ADDITIONAL ISSUES
4. Whether the plaintiff proves that Sri. Kota Krishnaiah Setty had duly executed his last Will and testament on 13 O.S.No.17098/2006 10.05.1978 while he was in a sound disposing state of mind?
5. Whether the defendant No.8 proves tht he is neither a necessary party nor a proper party to the suit?
6. Whether the defendant No.8 further proves that the suit of the plaintiff without seeking the declaration regarding the alienation is not maintainable?
ADDITIONAL ISSUES
7. Whether the defendant No.8 proves that the valuation of the suit by the plaintiff for the purpose of court fee is not correct?
Note: This issue and additional issue No.1 are ordered to be tried as the preliminary issues.
ADDITIONAL ISSUES DATED 23.04.2018 Whether the plaintiff proves that he is in joint possession of the plaint schedule properties along with defendants?
7. To substantiate the case of the plaintiff, plaintiff examined himself as PW1 and one attesting witnesses as P.W.2 and produced in all 8 documents as Exs.P1 to 14 O.S.No.17098/2006 Ex.P.8. The defendant No.1, defendant No.2(b) and defendant No.8 examined themselves as D.W.1 to D.W.3 and produced in 3 documents as per Exs.D.1 to D.3.
8. I have heard the arguments of learned counsel for plaintiff and learned counsel for defendants and I have perused the case records.
9. My answers to the above issues are as under-
ISSUE No.1 - In the negative;
ISSUE No.2 - In the negative;
ISSUE No.3 - In the affirmative;
ISSUE No.4 - In the affirmative;
ADDITIONAL ISSUE No.1 - In the negative; ADDITIONAL ISSUE No.2 - In the negative; ADDITIONAL ISSUE No.3 - In the negative; ADDITIONAL ISSUE No.4 - In the negative; ADDITIONAL ISSUE No.5 - In the negative; ADDITIONAL ISSUE No.6 - In the negative; ADDITIONAL ISSUE No.7 - In the negative;
ADDITIONAL ISSUE - In the negative;
DATED 23.04.2018
ISSUE No.5 - As per final order,
for the following -
15 O.S.No.17098/2006
REASONS
10. ISSUES No.1, 3 AND ADDITIONAL ISSUE NO.4 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid repetition of facts and for convenience sake, both issues are taken together for common discussion.
11. On proper appreciation of pleadings and evidence on record placed by parties, it is fact that, defendant No.1 is wife of late Kota Krishnaiah Setty. Likewise, plaintiff and defendant No.2 are sons of late K. Lakshminarayana Setty. Said K. Lakshminarayan Setty is one of brothers of Kota Krishnaiah Setty. It is not in dispute between parties that, Kota Krishnaiah Setty and his brothers together have purchased Sy.No.65, situated at Kowdenahalli Village under registered sale deed dated 26.04.1967. Said document has been produced before court as per Ex.P.1.
12. It is specifically pleaded in the plaint and same is deposed by P.W.1 before court that, on 24.10.1973 there was partition between Kota Krishnaiah Setty and 16 O.S.No.17098/2006 his brothers and in said partition in all 14 sites in which suit schedule properties were also included fallen to the share of Kota Krishnaiah Setty. Ex.P.2 is certified copy of partition deed dated 24.10.1973. The P.W.1 in his cross-examination has deposed, as per Ex.P.2 there was partition effected between Kota Krishnaiah Setty and his brothers. In said partition, suit properties fallen to share of Kota Krishnaiah Setty.
13. It is pertinent to note here that, parties to suit are not in dispute that, Kota Krishnaiah Setty and defendant No.1 has no issues. The defendant No.1 by virtue of Ex.P.4 sale deed dated 11.03.2004 sold item No.1 of suit schedule property in favour of defendants No.4 and 5. Likewise on same day, defendant No.1 sold suit item No.2 property as per Ex.P.5 in favour of defendant No.6.
14. It is pertinent to note here that, defendant No.1 has not disputed, execution of Exs.P.4 and P.5 documents in favour of defendants No.4 to 6. It is only contention of defendant No.1 that, she has executed some papers written in English language in good faith at 17 O.S.No.17098/2006 the behest of defendant No.2 but she was not aware that, those deeds are pertaining to suit properties.
15. On careful perusal of Exs.P.4 and P.5 documents, it is clearly mentioned how Kota Krishnaiah Setty had acquired properties under Exs.P.1 and P.2. It is also mentioned in said documents, Kota Krishnaiah Setty died intestate leaving behind defendant No.1 in his only legal heirs and successor to his estate. Further on proper appreciation of contents of Exs.P.4 and P.5, it is mentioned, defendant No.2 - K. Nagaraj has adopted son of late Kota Krishnaiah Setty.
16. The defendant No.2 in his written statement has specifically contended, he signed sale deed as consenting witness. The defendant No.1 sold suit property in favour of defendants No.4 to 6. As purchasers have insisted that, defendant No.2 has to sign as consenting witness, as such, defendant No.2 singed sale deeds as consenting witness.
17. The D.W.2 who is daughter of defendant No.2 has deposed that, Kota Krishnaiah Setty has no issues. It is specifically denied by D.W.2, her father late K. Nagaraju claiming to be adopted son of Kota Krishnaiah 18 O.S.No.17098/2006 Setty sold suit properties in favour of defendants No.4 to
6.
18. Admittedly, there is no evidence or documents placed on record to show, defendant No.2 has been legally and validly adopted by late Kota Krishnaiah Setty and defendant No.1 by following customs and rites prevailing in their community and there was actual handing over of defendant No.2 by his natural parents to Kota Krishnaiah Setty and defendant No.1.
19. It is only mentioned in Exs.P.4 and P.5 sale deeds that, defendant No.2 is adopted son of late Kota Krishnaiah Setty. It is clarified by defendant No.2 in his written statement that, as purchasers have insisted to sign him sale deeds as consenting witness, he signed those sale deeds as per Exs.P.4 and P.5 as consenting witness. Absolutely there is nothing on records placed by plaintiff to show other than sale deeds executed by defendant No.1, in other documents pertaining to Kota Krishnaiah Setty and defendant No.1 or in documents pertains to defendant No.2 it is mentioned defendant No.2 is adopted son of Kota Krishnaiah Setty and defendant No.1.
19 O.S.No.17098/2006
20. It is definite case of plaintiff that, Kota Krishnaiah Setty during his lifetime, executed his last Will dated 10.12.1978 and thereby bequeathed one site to Kota Rathnamaiah Setty, another site to K. Lakshimarasimhalu, another site to K. Nagaraj and one site to plaintiff herein. Original Will dated 10.05.1978 written in Telugu language and typed copy of said document have been produced as per Ex.P.3 and P.3(a) respective before court.
21. It is pertinent to note here that, defendant No.1 being wife of late Kota Krishnaiah Setty in her written statement has admitted about Will dated 10.05.1978 said to have been executed by late Kota Krishnaiah Setty in respect of suit schedule properties. It is not in dispute that, late Kota Krishnaiah Setty died on 21.05.1978.
22. The P.W.1 in his cross-examination has admitted about date of death of Kota Krishnaiah Setty on 21.05.1978. It is also deposed by P.W.1 that, Kota Krishnaiah Setty had no issues. It is specifically deposed by P.W.1 in his cross-examination, after death 20 O.S.No.17098/2006 of Kota Krishnaiah Setty, defendant No.1 become owner of suit schedule properties. It is further admitted by P.W.1 in his cross-examination, as purchasers have been insisted to defendant No.2 sign as consenting witness to sale deeds, defendant No.2 signed as witness to Exs.P.4 and P.5 sale deeds. The D.W.2 also admitted in her cross-examination that, Kota Krishnaiah Setty had no issues. When it is suggested, Kota Krishnaiah Setty executed Will as per Ex.P.3 and same is denied and false by D.W.2.
23. The defendants No.7 and 8 are impleaded to suit as per order dated 13.12.2016. The defendant No.7 is son of late Kota Rathnamaiah Setty and defendant No.8 is son of late K. Rajagopal. It is fact that, names of Kota Rathnamaiah Setty has been mentioned in Will as per Ex.P.3.
24. It is pertinent to note here that, as plaintiff is claiming his right in respect of suit properties under Will as per Ex.P.3, which alleged to have been executed by Kota Krishnaiah Setty during his lifetime, burden on the plaintiff to prove said Will as required under law. It 21 O.S.No.17098/2006 is the plaintiff who is claiming he is beneficiary under Will has to prove its due execution as required under provision Section 68 of Indian Evidence Act and as per provision under Section 63 of Indian Succession Act.
25. The learned counsel for defendant No.2 has vehemently argued that, Will as relied by plaintiff not proved as required under law by removing all suspicious circumstances attached to its due execution. The learned counsel for defendant No.2 in support of his arguments has relied upon decision of Hon'ble Supreme Court reported in AIR 1959 SCC 443 in case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others, wherein it is held that, there is one important feature which distinguish will from other documents. Unlike other documents Will speaks from death of testator and so when it is propounded are produced before court, testator who has already departed the world cannot say whether it is Will or not. This aspects naturally introduces an element of solemnity in decision of question whether document propounded is proved to the last Will and testament of departed testator. Even so, in dealing with proof of Will, court will start on same 22 O.S.No.17098/2006 enquiry as in the cases of proof of documents. Propounder would be called upon to show by satisfactory evidence the Will was signed by testator, that the testator at relevant time was in a sound and disposing state of mind that he understood nature and effect of dispositions and put his signature to document of his own free Will.
26. The learned counsel for defendant No.2 has further relied upon decision of Hon'ble Supreme Court in Civil Appeal No.13192/2024 in case of Gopal Krishan and Others Vs. Daulat Ram and Others, wherein it is held that, language of Sec.63 of Indian Succession Act uses word 'OR'. It states that, each Will shall be attested by two or more witnesses who have seen testator sign or affix his mark on Will or has seen from other persons sing the Will in the presence by the direction of testator or has received personal acknowledgment from testator of his signature or mark.
27. The learned counsel for defendant No.2 has further relied upon the decision of Hon'ble Supreme Court in Civil Appeal No.3351/2014 in case of 23 O.S.No.17098/2006 Meena Pradhan and Others Vs. Kamla Pradhan and another, wherein it is held that, i. 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;
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfill 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 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 24 O.S.No.17098/2006 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;
iv. 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;
v. 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; vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. 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;
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all 25 O.S.No.17098/2006 legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier. ix. 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;
x. One who alleges fraud, fabrication, undue influence etc he has to prove the same.
However, 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.
xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would 26 O.S.No.17098/2006 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.
28. Further Hon'ble Supreme Court in case of Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, reported in (2009) 4 SCC 780 wherein it was pleased to observe that, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.
27 O.S.No.17098/2006
29. It is pertinent to note here that, if principles laid down in above decisions are press into service, on careful scrutiny of Ex.P.3 - Will there is only one attesting witness to document by name M. Narayana Gupta. As per Section 63(c) of Indian Succession Act, a Will shall be attested by two or more witnesses, each of whom has 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. In view of specific provision of Section 63(c) of Indian Succession Act as only one witnesses to Ex.P.3, it can safely held alleged Will as per Ex.P.3 not in accordance with relevant provision of Section 63 of Indian Succession Act.
30. Further in order to prove due execution of Ex.P.3 - Will, plaintiff has examined son of M. Narayana Gupta by name N. Chandrashekar as P.W.2 before court. The witnesses has deposed, he has produced notarized copy of his Aadhaar Card as per Ex.P.6 to show, he is son of M. Narayana Gupta. Further, copy of death of certificate of M. Narayana Gupta has been 28 O.S.No.17098/2006 produced as per Ex.P.7. As per contents of said document, M. Narayana Gupta died on 17.01.2013.
31. The P.W.2 in his examination-in-chief has deposed, his father has signed as attesting witness of Will. The P.W.2 in his cross-examination has deposed, he did not know who are witnesses to Will as per Ex.P.3. It is required to be noted here, plaintiff or P.W.2 have not produced any documents which consists of signature of M. Narayana Gupta so as to say signature on Ex.P.3 and signature on documents which bear signature of M. Narayana Gupta are one and the same.
32. It is important to note here that, absolutely there is no explanation either in pleadings or in evidence of P.W.1, who had custody of Will from date of alleged execution by late Kota Krishnaiah Setty, till it is handed over to plaintiff. It is also not explained by plaintiff either in pleadings or in his evidence before court, how Will as per Ex.P.3 come into his hand. There is nothing on record even remotely suggest that, alleged Will come in possession of plaintiff from lawful custody. 29 O.S.No.17098/2006
33. It is fact that, alleged Will Ex.P.3 executed, which is just 11 days before death of Kota Krishnaiah Setty. As already discussed, there is no dispute that, Kota Krishnaiah Setty died on 25.01.1978. It is evident from material on record that, till filing of suit, alleged Will Ex.P.3 has never seen light of the day.
34. It is pertinent to note here that, defendant No.1 is wife of late Kota Krishnaiah Setty has not denied execution of Ex.P.3-Will by her late husband. Defendant No.1 having admitted Will in her written statement, she having aware about Will executed by her late husband, she would have told about execution of Will to plaintiff and other beneficiaries under alleged Will.
35. Absolutely there is no material on record as to say, whether it is defendant No.1 or late M. Narayana Gupta who is attesting witness to Will have informed about execution of Will by late Kota Krishnaiah Setty to plaintiff immediately after death of Kota Krishnaiah Setty. It is fact that, defendant No.1 and M. Narayana Gupta have not informed about alleged Will to plaintiff 30 O.S.No.17098/2006 and other beneficiaries within reasonable time from date of death of Kota Krishnaiah Setty.
36. It is fact that, as on date of death of Kota Krishnaiah Setty, defendant No.1 resided with him. If really Kota Krishnaiah Setty who had taken steps to bequeath his properties under Will that too not mentioning defendant No.1 as beneficiary under Will, definitely he would have his wish to execute such testament to his wife defendant No.1. If that is so, in all probabilities immediately after death of Kota Krishnaiah Setty defendant No.1 would have informed about Will to plaintiff and other beneficiaries. Same was not done in present case by defendant No.1.
37. It is come in the evidence of PW.1 that, defendant No.1 and himself resided together under same roof. If that is so, the defendant No.1 having aware about alleged Will said to have been executed by her late husband would have informed plaintiff about execution of Will within reasonable time from date of death of her husband.
31 O.S.No.17098/2006
38. Herein the case, as already discussed, since 21.05.1978 till filing of suit, alleged Will as per Ex.P.3 is not seen light of the day. Further, it is very important to note here that, absolutely there is no material on record to show, defendant No.1 and other persons whose name mentioned in Will as beneficiaries, they have made an attempt to enter their names to suit properties based on Will as per Ex.P.3.
39. It is fact that, from 21.05.1978 for nearly 28 years Will as per Ex.P.3 has not seen light of the day and same is not acted upon. All these facts, create strong suspicious circumstance about execution of Will by late Kota Krishnaiah Setty.
40. In view of above made discussion, court is of opinion that, Will has not been duly proved and same is not accordance with mandatory provision under Section 63(c) of Indian Succession Act. Evidence of plaintiff and P.W.2 and the way in which Will not seen light of day till filing of suit and same is not acted upon for nearly 28 years from date of its alleged execution itself does not inspires confidence of court so as to accept said Will as true and genuine one. Hence, I answer Issue No.1 in 32 O.S.No.17098/2006 the negative, Issue No.3 in the affirmative and additional issue No.4 in the negative.
41.ADDITIONAL ISSUE NO.1 AND ADDITIONAL ISSUE NO.7 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid repetition of facts and for convenience sake, both issues are taken together for common discussion.
42. It is pertinent to note here that, these issues have been treated as preliminary issued and detailed order was passed by this court on 23.04.2018. Thereafter as per order dated 19.06.2018, plaintiff has paid proper court fees and filed fresh valuation slip as ordered by court. Hence, I answer Issue No.1 and additional issue No.7 in the negative.
43.ADDITIONAL ISSUES NO.2 AND ADDITIONAL ISSUE NO.5 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid repetition of facts and for 33 O.S.No.17098/2006 convenience sake, both issues are taken together for common discussion.
44. The defendants have specifically stated that, suit of the plaintiff is bad for non-joinder of necessary parties and bad for mis-joinder of parties. It is specifically contended by defendants, Ex.D.1 is genealogical tree of family of plaintiff and defendants No.1 to 3. same has been got confronted through P.W.1 in his cross-examination. All parties whose name shown in Ex.D.1 are not made as party to present suit.
45. Further it is contention of defendant No.8 he is not proper and necessary party to the suit as there is no relief claimed against by him. It is important to note here that, this court by its order dated 13.12.2016 has allowed an application filed by plaintiff under Order I Rule 10(2) of CPC and thereby permitted to implead present defendants No.7 and 8 as parties to the suit.
46. It is pertinent to note here that, defendant No.7 is son of late Kota Rathnamaiah Setty, whose name is mentioned in Will as per Ex.P.3. It is to be noted here, by allowing application filed under Order I 34 O.S.No.17098/2006 Rule 10 of CPC, court has observed that, Lakshminarasimalu has no issues. It is fact that, name of Lakshminarashimalu is mentioned in Will as per Ex.P.3. The defendant No.8 being son of Rajagopal, who is brother of Lakshminarasimalu impleaded to suit as Clause-II legal heirs of Lakshminarasimalu.
47. As plaintiff is claiming his right over suit property based on Ex.P.3-Will, presence of these defendants No.7 and 8 who are sons of late Kota Rathnamaiah Setty and late Rajagopal is very much necessary. In order to avoid multiplicity of proceedings and future complications, plaintiff might have impleaded these persons are parties to the suit.
48. The learned counsel for defendant No.2 has argued that, the persons whose name mentioned in Ex.D.1 are necessary parties to suit. The learned counsel for defendant No.2 in support of his arguments has relied upon decision of Hon'ble Supreme Court in Civil Appeal No.5755-5756/2011 in case of Moreshar Vs. Vyankatesh Sitaram Bhedi (dead) by LRs' and others, wherein it is held that, it has to be 35 O.S.No.17098/2006 seen that, in order to considered whether party is necessary party, twin test has to be satisfied. First is that, there must be right to some relief against such party in respect of controversies involved in proceedings. The second is that, no effective decree can be passed in absence of such a party.
49. It is material to note here that, defendants have contended that, all persons shown in Ex.D.1 are not made as parties to suit. It is fact that, suit filed by plaintiff based on Will as per Ex.P.3. In Will name of Kota Rathnamaiah, Kota Lakshimarasimalu, Kota Nagaraju and plaintiff mentioned as beneficiaries. Defendant No.8 has been included in suit as Clause-II heir of late Lakshminarasimalu. There is no necessary to implead all persons whose name mentioned in Ex.D.1. Hence, I answer Additional Issue No.2 and Additional Issue No.5 in the negative.
50. ISSUE NO.4 :- It is worth to note here that, defendants No.4 to 6 have purchased suit schedule properties under registered sale deed as per Exs.P.4 and P.5 from defendant No.1, who is only legal heir left 36 O.S.No.17098/2006 behind by late Kota Krishnaiah Setty. As plaintiff has failed to establish due execution of Will as per Ex.P.3 by late Kota Krishnaiah Setty, it can safely concluded, defendant No.1 having succeeded to estate of Kota Krishnaiah Setty and having alienable right and authority sold suit schedule properties in favour of defendants No.4 to 6.
51. The defendants No.4 to 6 under given circumstances, having enquired about rights of defendant No.1 over suit properties after death of Kota Krishnaiah Setty they purchased suit properties under registered sale deed for valid sale consideration amount. Taking into note of contents of Ex.P.4 and P.5 wherein it is mentioned how Kota Krishaniah Setty had acquired property, it can be safely inferred, the defendants No.4 to 6 have made reasonable enquiry as prudent man would have done in given circumstances and thereafter they have purchased suit properties under registered sale deeds from defendant No.1. Hence, I answer Issue No.4 in the affirmative.
52. ISSUE NO.2, ADDITIONAL ISSUE NO.3, 6 AND ADDITIONAL ISSUE DATED 23.04.2018 :- As 37 O.S.No.17098/2006 these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid repetition of facts and for convenience sake, both issues are taken together for common discussion.
53. It is specific contention of defendants that, there is no cause of action for plaintiff to file present suit. The plaintiff has specifically pleaded, Kota Krishnaiah Setty being absolute owner of suit properties during his lifetime executed Will as per Ex.P.3 under which plaintiff is one of beneficiaries in respect of suit properties. In non-proving due execution of Will as required under law, plaintiff is not entitled for share in suit properties is different aspects, So far as plaint pleadings and Ex.P.3 are considered, it cannot be held there is no cause of action for plaintiff to file present suit.
54. As and when plaintiff utterly failed to prove due execution of Ex.P.3 as required under law and defendants/purchaser have proved they have purchased suit properties as per Exs.P.4 and P.5 and they are in 38 O.S.No.17098/2006 possession and enjoyment of suit properties, plaintiff cannot claim he is in joint possession of suit schedule properties along with defendants No.1 to 3.
55. The defendant No.8 has specifically contended that, suit of the plaintiff without seeking declaration regarding alienation is not maintainable. It is true that, defendant No.8 not tendered for further cross- examination as such his evidence cannot be looked into but as already issue framed by the court, same has to be answered taking into note of material on record.
56. It is pertinent to note here that, by seeking necessary amendment to pleadings, plaintiff has sought for declaration regarding alienation of suit properties by defendant No.1 in favour of defendants No.4 to 6. It is argued on behalf of learned counsel for defendant No.2 that, when such amendment was sought, said relief already barred by law of limitation.
57. It is worth to note here that, plaintiff failed to prove he has got right and interest in suit properties by virtue of Will as per Ex.P.3. Once plaintiff has no right or interest in suit properties, question of limitation to 39 O.S.No.17098/2006 seek his right and title in respect of suit properties does not arise. Any how by necessary amendments to pleadings plaintiff has sought for such declaratory relief.
58. As plaintiff failed to establish due execution of Will as per Ex.P.3 said to have been executed by late Kota Krishaniah Setty in respect of suit properties, the plaintiff is not entitled for any relief as prayed in suit. Further it is to be noted here, plaintiff knowing fully well death of defendant No.1 not reported same before court and proceeded suit against defendant No.1 who died during pendency of suit. All these facts have been admitted by P.W.1 in his cross examination. In view of all these facts, suit filed by plaintiff is devoid of merits, same is liable to be dismissed. Hence, I answer Issue No.2 in the negative, additional issue No.3 in the negative, additional issue No.6 in the negative and additional issue dated 23.04.2018 is negative.
59. ISSUES No.5 :- In view of the above said findings on Issue and additional issues, I proceed to pass the following:-
40 O.S.No.17098/2006
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, typed & computerized by her, corrected and signed by me and then pronounced in the open Court on this the 3rd day of September, 2025).
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru. ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:-
Examined on:
P.W.1 : K. Ravindranath 16-02-2013 P.W.2 : N. Chandrashekar 10-07-2023
2. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:-
Ex.P.1 : Certified copy of sale deed dated 26.4.1967. Ex.P.2 : Certified copy of partition deed dated 24.10.1973 Ex.P.3 : Original Will dated 10.5.1978. Ex.P.3(a) : Typed copy of Ex.P.3.
Exs.P.4 : Certified copies of sale deeds.
and P.5
Ex.P.6 : Aadhaar Card of P.W.2.
Ex.P.7 : Death certificate of M.Narayana Guptha.
Ex.P.8 : Voter ID Card of M.Narayana Guptha.
41 O.S.No.17098/2006
3.LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:-
Examined on:
D.W.1 : K. Nagaraj 11-08-2021. D.W.2 : Patti Phanishree 30-07-2024. D.W.3 : Nagendra Prasad K.R. 12-01-2018.
4.LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:-
Ex.D.1 : Family Tree.
Ex.D.2 : Death certificate of Smt. K. Lakshminarasamma. Ex.D.3 : Special Power of Attorney dated 12.1.2024.
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru.