Bangalore District Court
Vanajakshi vs Mahesh S on 3 February, 2024
KABC010080352020
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 3rd day of February, 2024
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.2097 /2020
Plaintiffs: 1. Smt. Vanajakshi,
Aged about 75 years,
W/o Late Sharaba Shetty,
R/at: No.415, 4th Main,
5th Cross, Coffee Board Layout,
Kempapura, Hebbal,
Bengaluru - 560024.
2. Sri.S.J.Shankar,
Aged about 48 years,
S/o Late Sharaba Shetty,
R/at: No.415, 4th Main,
5th Cross, Coffee Board Layout,
Kempapura, Hebbal,
Bengaluru - 560024.
3. Smt.Jayanthi,
Aged about 61 years,
D/o Late Sharaba Shetty,
W/o B.K.Mallikarjunaiah,
2 O.S.No.2097/2020
R/at: No.55, 1st Main,
8th 'A' Cross,
B.C.C.Layout,
Bengaluru - 560040.
Since dead by her Lrs.
3(a). Sri.B.K.Mallikarjunaiah,
Aged about 70 years,
S/o Late Kidagannappa,
R/at; No.614,
'A' Block, Komarla Brigade,
Chiklasandra,
Uttharalli Main Road,
Bengaluru - 560061.
3(b). Smt.Ashwini B.M.,
Aged about 37 years,
R/at: No.A-915,
'A' Block, Komarla Brigade,
Subramanyapura Main Road,
Chiklasandra,
Uttharalli Holbli,
Bengaluru - 560061.
3(c). Sri.Sagar B.M.
Aged about 32 years,
S/o B.K.Mallikarjunaiah,
No.55, 4th Cross,
1st Stage, BCC Layout,
Vijayanagar,
Bengaluru - 560040.
4. Smt. S.Shashikala,
Aged about 48 years
D/o Late Sharaba Shetty,
W/o B.Javahar,
R/at: No.85/A,
3 O.S.No.2097/2020
Geology Layout,
Srigandha Kawal,
Annapurneshwari Nagar,
Bengaluru - 560072.
(By Sri.Vivekananda T.P. - Advocate)
-V/S-
Defendants: 1. Sri.S.Mahesh,
Aged about 65 years,
S/o Late Sharaba Shetty,
R/at: No.249,
Forest Layout,
Byrava Nagar,
Bengaluru - 560059.
(By Sri.K.B.Durga Prasad - Advocate)
Date of institution of the suit: 18.03.2020
Nature of the suit: Partition suit
Date of commencement of
08.11.2021
recording of evidence:
Date on which Judgment was 03.02.2024
pronounced:
Duration: Yeara Years Months Day
03 10 16
JUDGMENT
The plaintiffs have filed the present suit under Sec.26 r/w Order VII Rule 1 of CPC, praying for the relief of partition and separate possession of their 1/5th share each in the suit 4 O.S.No.2097/2020 schedule property and for usufructs of Item No.1 of the schedule property.
2. The brief facts of the case of the plaintiffs as averred in the suit plaint are as follows:-
The suit schedule Item No.1 property has been purchased by Late Sharaba Shetty through registered sale deed dated 10.08.1964. After the purchase of vacant site, building has been constructed consisting of 3 shops, one 2 BHK house in the ground floor. Item No.2 is the property which is allotted by Karnataka Housing Board in favour of Sharaba Shetty. Absolute sale deed has been executed by the Karnataka Housing Board on 01.09.1992. Sharaba Shetty was died on 29.07.2001. plaintiffs No.1 is the wife of deceased Sharaba Shetty. plaintiffs No.2 and defendant are the sons and plaintiffs No.3 and 4 are the daughters of deceased Sharaba Shetty. He had married Jalajakshi and she gave birth to plaintiffs No.3 and defendant. After the death of Jalajakshi, Late Sharaba Shetty married plaintiffs No.1 and gave birth to plaintiffs No.2 and 4. Item No.2 property is in possession of plaintiffs No.1 and 2. Khatha in respect of said property is standing in the joint name of plaintiffs. Since the beginning the property Item No.1 has been leased and the defendant is receiving the rents. During the life time of Sharaba Shetty, it was his will that the property at Mysore shall be given to 5 O.S.No.2097/2020 plaintiffs No.2 and property at Bengaluru shall be given to the defendant. With the said intention, Sharaba Shetty made a Will Deed dated 26.04.2000 in respect of Bengaluru property in the name of defendant and Will deed dated 20.04.2001 with respect to Mysore property in the name of plaintiffs No.2. Both the Will Deeds which were executed by Late Sharaba Shetty were incomplete in as much as the said Will were not made in the manner known to law and same has not been attested by the witnesses. The suit schedule properties were continued to be in joint possession of plaintiffs and defendant. When plaintiffs No.1 has suggested for partition in the suit schedule properties. The defendant had disclosed that after the death of Sharaba Shetty he got transferred the Khatha of suit schedule Item No.1 in his name in the records of BBMP based on the Will Deed dated 26.04.2000 and therefore the property at Bengaluru is not available for partition and only the property at Mysore that is suit schedule Item No.2 may be partitioned. The defendant has played fraud, misrepresentation and mischief while getting transfer of Khatha in his name. The defendant has produced the xerox copy of the Will by interpolating the signatures of the witnesses though the original Will contains no signature of any of the Witnesses and the original Will is in possession of plaintiffs No.1. The defendant has sworn a false affidavit to the effect that during the life time of Sharaba Shetty, he has executed a Will dated 26.04.2000 and based on the 6 O.S.No.2097/2020 said Will he has inherited the property at Bengaluru. The plaintiffs No.1 and 2 having no other alternative have caused a legal notice to the defendant and called upon the defendant for partition of the suit schedule properties. The said notice has been duly served to the defendant. Upon the receipt of notice, the defendant has come forward for negotiation. The defendant has suggested that he is prepared to execute the Release Deed in favour of plaintiffs No.1 and 2 in respect of property at Mysore and plaintiffs No.1 and 2 have to execute the Release Deed in respect of property at Bengaluru. The plaintiffs No.2 has pointed out that mere execution of the Release Deeds as suggested by the defendant cannot serve any purpose and cannot resolve the controversy unless the plaintiffs No.3 and 4 come forward for a negotiation and sign the Release Deed. After the death of Sharaba Shetty, the plaintiffs continued to be in joint possession of suit schedule property. The defendant has been receiving the rents from the property at Bengaluru. Therefore the defendant is liable to furnish the details of rents received by him. Hence, the plaintiffs have stated that cause of action arose for them to file the suit and as such they have prayed to decree the suit.
3. After the services of summons, the defendant has appeared before the court through his counsel and he has filed 7 O.S.No.2097/2020 his written statement. The defendant in the written statement has contended as follows:
Suit schedule Item No.1 and 2 properties are self acquired properties of Sharaba Shetty and he had every manner of right, title and interest to dispose of his self acquired property. Sharaba Shetty was died on 29.07.2001. Deceased Sharaba Shetty during his life time has bequeathed the suit schedule Item No.1 property in favour of the defendant by executing Will Deed dated 26.04.2000. He has executed Will Deed in favour of plaintiffs No.2 with respect to Item No.2 property on 20.04.2001. The relationship between the parties as averred in the suit plaint is true and correct. 3 shops and house in suit schedule Item No.1 has been leased out to tenants is true and correct. Item No.2 is in possession of plaintiff No.1 and 2 and Khatha of Item No.2 is standing in their name is correct.
Sharaba Shetty during his life time was intending to give the property at Mysore to plaintiffs No.2 and property at Bengaluru to defendant is true and correct. The plaintiffs are not entitled for any share in the suit schedule Item No.1 property as the same is owned and possessed by defendant as per Will. The plaintiffs are also liable to furnish accounts for use of occupation of property situated at Mysore. The suit is barred by law of limitation. The suit is not maintainable as both the parties have acted upon the Will dated 26.04.2000 and Will dated 20.4.2001. Even if the court come to the conclusion that 8 O.S.No.2097/2020 the suit schedule properties are liable for partition and for account, Item No.2 is also rent yielding property and plaintiffs are also liable for such account. The defendant has specifically denied all other averments made in the suit plaint. On these among other grounds, the defendant has prayed to dismiss the suit.
4. Based upon the pleadings of both the parties, following 7 Issues were came to be framed. Then the matter was posted for evidence of the defendant.
ISSUES
1. Whether the plaintiffs prove that suit schedule properties are joint family properties of themselves and defendant and no partition has been effected in the suit schedule property between them?
2. Whether the plaintiffs prove that they are having 1/5th share in the suit schedule properties?
3. Whether the plaintiffs prove that they have demanded the defendant to effect partition in the suit schedule properties and to give their share and defendant has refused to giver their share in the suit schedule properties?
4. Whether defendant proves that the Will Deed dated 26.04.2000 and 20.04.2001 executed by Sharaba Shetty has been acted upon and as such, the present suit is not maintainable, as contended in para No.26 of his written statement?
9 O.S.No.2097/20205. Whether the defendant proves that, the suit is barred by law of limitation, as contended in para No's.23 and 25 of his written statement?
6. Whether the plaintiffs are entitled for the reliefs sought for?
7. What order or decree?
5. The plaintiffs in order to prove their case have adduced the oral evidence of plaintiffs No.2 as P.W.1. P.W.1 has produced 27 documents and got them marked as Ex.P.1 to P.27 and closed their side. Then the matter was posted for evidence of the defendant. The defendant in order to prove his case, has adduced his oral evidence as D.W.1. The defendant has examined 2 witnesses as D.W.2 and D.W.3. The defendant has produced 3 documents and got them marked as Ex.D.1 to D.3 and closed his side. Then the matter was posted for arguments.
6. Heard the arguments. Perused the pleadings, oral and documentary evidence adduced on behalf of both the parties and other materials on record.
7. Having done so, my answer to the aforesaid issues are as follows:
Issue No.1 : In Partly Affirmative
Issue No.2 : In Partly Affirmative
Issue No.3 : In the Affirmative
10 O.S.No.2097/2020
Issue No.4 : In Partly Affirmative
Issue No.5 : In the Negative
Issue No.6 : In the Partly Affirmative
Issue No.7 As per the final order
for the following:
REASONS
8. ISSUES NO.1 and 4: These issues are inter
related to each other and as such they are taken up together for discussion to avoid repetition of facts.
9. Since the plaintiffs have filed present suit for the relief of partition and separate possession of their shares in the suit schedule Item No.1 and 2 properties, the burden is upon the plaintiffs to prove that the suit schedule properties are the joint family properties of themselves and defendant and no partition has been effected in the suit schedule properties between them. The plaintiffs in order to discharge the burden of proving the said facts have adduced the oral evidence of plaintiffs No.2 as P.W.1.
10. The gist of the deposition of P.W.1 in his chief- examination filed by way of affidavit are as follows:
One Sharaba Shetty is the father of plaintiffs No.2 to 4 and defendant. Sharaba Shetty at the first instance married Jalajakshi. She gave birth to defendant and plaintiffs No.3.11 O.S.No.2097/2020
After the death of Jalajakshi, Sharaba Shetty married plaintiffs No.2 and she gave birth to plaintiffs No.2 and defendant 4. Sharaba Shetty during his life time had purchase suit schedule Item No.1 property bearing No.1/2, 2 nd Main Road, Marenahalli measuring East to West 27X22/2 and North to South 69 feet and building thereon through the registered sale deed dated 10.08.1964 and constructed 3 shops and one 2 BHK house in the ground floor. Suit schedule Item No.2 property bearing No.56 and 56/1, 2nd Main Road, 13th Cross, Vidyaranyapuram Extention, Mysore, measuring East to West 56 feet and North to South 50 feet alloted by the Karnatak Housing Board in favour of Sharaba Shetty and absolute sale deed has been executed by the Karnataka Housing Board on 01.09.1992 in the name of Sharaba Shetty. P.W.1 in his examination-in-chief has further deposed that Sharaba Shetty was died on 29.07.2001. The defendant has not disputed the fact that the suit schedule Item No.1 and 2 properties were absolutely belonging to Sharaba Shetty. Further the defendant has also not disputed the relationship between the plaintiffs and defendant as averred in the suit plaint and he has also not disputed the relationship of plaintiffs and defendant with Sharaba Shetty. The defendant has not disputed the fact that one Jalajakshi is the first wife of Sharaba Shetty and defendant and plaintiffs No.3 are the children of Jalajakshi and Sharaba Shetty. The defendant also not disputed the fact that after the 12 O.S.No.2097/2020 death of Jalajakshi, Sharaba Shetty married plaintiffs No.1 and plaintiffs No.2 and defendant No.4 are the children of Sharaba Shetty and plaintiffs No.1. The defendant has also not disputed the fact that Sharaba Shetty was died on 29.07.2001.
11. The plaintiffs has produced Ex.P.1 certified copy of the sale deed dated 10.08.1964 executed by Chikkabasappa in favour of Sharaba Shetty with respect to suit schedule Item No.1 property at Ex.P.1. The plaintiffs has also produced certified copy of the sale deed dated 01.09.1982 executed by Karnataka Housing Board in favour of Sharaba Shetty with respect to suit schedule Item No.2 property at Ex.P.2. The death certificate of Sharaba Shetty is produced at Ex.P.13. The said documents shows that Sharaba Shetty was died on 29.07.2001. Ex.P.24 is the sale deed dated 10.08.1964 executed in the name of Sharaba Shetty with respect to suit schedule Item No.1 property. Ex.P.24(a) is the typed copy of the said sale deed. Aforesaid documents produced by the plaintiffs also supports their contention that the suit schedule Item No.1 and 2 are the absolute properties belonging to deceased Sharaba Shetty. It is not the case of the plaintiffs or the defendant that Sharaba Shetty has acquired the suit schedule properties from his ancestors and the suit schedule properties are the ancestors properties of the Sharaba Shetty or the plaintiffs and the defendant. It is not the case of the 13 O.S.No.2097/2020 plaintiffs and defendant that the suit schedule properties are acquired by Sharaba Shetty in his name out of any joint family income, business or joint efforts and income of plaintiffs and defendant. Under these facts and circumstances, I am of the opinion that the suit schedule properties can be considered as the absolute and self acquired properties of deceased Sharaba Shetty.
12. It is an admitted fact that Sharaba Shetty was died on 29.07.2001. According to P.W.1 Sharaba Shetty during his life time has made Will Deed dated 26.04.2000 in respect of suit schedule Item No.1 property and another Will Deed dated 20.04.2001 in respect of suit schedule Item No.2 property. P.W.1 in his examination-in-chief has deposed that the said Will Deeds executed by Late Sharaba Shetty were incomplete as the said Will Deeds were not made in the manner known to law and same has not been attested by the witnesses. P.W.1 has further deposed in his examination-in-chief that hence they are not claiming any right, title and interest on the estate of Sharaba Shetty based upon the Will Deed. P.W.1 was further deposed in his examination-in-chief that the plaintiffs came to know that the defendant has got transfer Khatha of suit schedule Item No.1 in his name in the records of BBMP on the basis of the Will Deed dated 26.04.2000. P.W.2 has further deposed in examination-in-chief that the fact of transfer of 14 O.S.No.2097/2020 Khatha of suit schedule Item No.1 property in the name of defendant alone was not within the knowledge of the plaintiffs. P.W.1 has further deposed in his chief-examination that the defendant has played fraud, misrepresentation and mischief while getting transfer of Khatha in his name and the defendant has got created the Will Deed by interpolating the signatures of witnesses though the original Will contained no signature of any of the witnesses.
13. P.W.1 was cross examined by the defendant. P.W.1 in his cross-examination has admitted that the suit schedule properties are the absolute properties of his father. He has admitted that his brother was looking after the Item No.1 property situated in Bengaluru. P.W.1 in his cross-examination has admitted that his father was in good health condition and his mental capacity was good at the time of his death. P.W.1 further admitted that his father was mentally and physically fit at the time of his death. P.W.1 in his cross-examination has admitted that his father has executed two Will Deeds. P.W.1 has further admitted in his cross-examination that his father has executed Will Deed in the name of the defendant with respect to the property situated in Bengaluru. P.W.1 has stated in his cross-examination that he will identify the signature of his father and further P.W.1 has identified the signature of his father on the original Will Deed dated 26.04.2000. Since P.W.1 has 15 O.S.No.2097/2020 admitted the signature of his father on the original Will Deed, the same was marked as Ex.D.1 during the cross of cross- examination of P.W.1. P.W.1 in his cross-examination has clearly admitted that Ex.D.1 Will Dee is the Will Deed executed by his father with respect to the property situated in Bengaluru. P.W.1 has identified the writings of his father on Ex.D.2 i.e. Will Deed dated 26.04.2000 which is in writing. Since P.W.1 has admitted the writings of his father on the Will Deed, the will Deed dated 26.04.2000 was marked with contents as Ex.D.2. Further P.W.1 in the cross-examination has identified his father's signature on the last page Ex.D.2 and as such the same was marked as Ex.D.2(a). P.W.1 has further admitted in his cross-examination that as per Ex.D.1 and D.2 documents, the property mention in the said documents belonging to his brother. P.W.1 in his cross-examination has admitted that the signatures of the witnesses is found on Ex.D.1 and D.2. P.W.1 has further admitted in his cross-examination that Ex.D.1 and D.2 Will Deeds are not incomplete documents. P.W.1 in his cross-examination has admitted that the suit schedule properties are not the joint family properties.
14. Thus, P.W.1 in the cross-examination has clearly admitted the execution of Ex.D.1 Will Deed by his father in the name of the defendant with respect to suit schedule Item No.1 property. He has also admitted the right of the defendant with 16 O.S.No.2097/2020 respect to Item No.1 property on the basis of Ex.D.1 and D.2 Will Deeds. Though the plaintiffs in the suit plaint have contended that the Will Deed executed by Sharaba Shetty with respect to Item No.1 property is incomplete documents, P.W.1 in the cross-examination has clearly admitted that Ex.D.1 is not incomplete document and further admitted that it bears the signature of the witnesses.
15. Only of the ground that the P.W.1 has admitted the execution of Will Deed dated 26.04.2000 by his father, it cannot be held that the defendant has proved due execution of the Will Deed by his father in accordance with law. Defendant has to prove the due execution of the Will Deed by his father with respect to suit schedule Item No.1 property as per law. The execution of Will Deed has to be proved as provided U/Sec.63 of the Succession Act and as provide U/Sec.68 of the Indian Evidence Act.
16. As per Sec.63 of the Indian Succession Act, the defendant has to prove that the testator has signed the Will out of his own free Will and at the time of execution of Will Deed he was in sound state of mind and he was aware about the nature and effect of Will Deed. Further the testator shall sign on the Will Deed and it shall be attested by 2 or more witnesses, each of whom has seen the testator signing the Will Deed. Since, as 17 O.S.No.2097/2020 per Sec.63 of the Indian Succession Act, Will Deed is compulsorily attestable document, it has to be proved by examining atleast one of the attesting witnesses to the Will Deed as provide U/Sec.68 of the Indian Evidence Act.
17. The defendant has produced Ex.D.1 the original Will Deed as primary evidence. Ex.D1 is in unregistered document. It is to be noted here that there is no necessity of compulsory registration of Will Deed. Further Will Deed produced at Ex.D.1 is typed. Further Ex.D.2 is the hand written Will Deed of Sharaba Shetty. As it is stated earlier, P.W.1 in his cross- examination has admitted the writing of Sharaba Shetty on Ex.D.2. Further P.W.1 has clearly admitted the signatures of Sharaba Shetty on Ex.D.1 and D.2. As such, there is no necessity for the defendant to prove the signatures of Sharaba Shetty on the Will Deed. Ex.D.1 and D.2 Will Deed are attested by 2 attesting witnesses. Further the defendant has adduced the oral evidence of one of the attesting witnesses to the Will Deed as D.W.2. D.W.2 in his chief-examination has stated that Ex.D.1 Will Deed and Ex.D.2 hand written Will Deed were executed by Sharaba Shetty on 26.04.2000 with respect to Item No.1 property. D.W.2 has further deposed that he and N.Nagaraj have signed the said Will Deeds as witnesses. He has stated he has put his signature on the Will Deeds as attesting witnesses. D.W.2 in the cross-examination has stated 18 O.S.No.2097/2020 that Sharaba Shetty was hale and healthy at the time of execution of Will Deed. Nothing has been elicited during the course of examination of D.W.2 to disbelieve his evidence in the chief-examination recording due execution of Ex.D.1 and D.2 Will Deed by Sharaba Shetty with respect to Item No.1 property.
18. Further the defendant has adduced the oral evidence of the elder daughter of another attesting witness to the Will Deed as D.W.3. D.W.3 in her chief-examination has identified the signature of her Late father N.Nagaraj on Ex.D.1 and D.2 documents. D.W.2 in her cross-examination has stated that she come to know about the execution of Will Deed by Sharaba Shetty in favour of defendant with respect to Bengaluru property. Sec.69 of the Indian Evidence Act provides that if no attesting witness to the Will Deed can be found, it must be prove that the attestation of one attesting witness atleast is in his handwriting, and with the signature of the person executing document is in the handwriting of that person. Since one of the attesting witnesses to Will Deed that is Nagaraj is dead, the defendant has adduced the oral evidence of his daughter as D.W.3 as provided U/Sec.69 of Indian Evidence Act.
19 O.S.No.2097/202019. The plaintiffs have not disputed the health condition of the deceased Sharaba Shetty at the time of execution of the Will Deed. The plaintiffs have not produced any medical documents to show that Sharaba Shetty was not in good health condition at the time of execution of Ex.D.1 and D.2 Will Deed and his mental condition was not in good state of mind at the time of execution of the Will Deed and he was not in a position to know what he was doing. Further as stated earlier, Ex.D.1 is typed and Ex.D.2 is hand written. Further there is the signature of Sharaba Shetty on the said Will Deeds. Further Ex.D.1 and D.2 are attested by 2 attesting witnesses. Further evidence of the one attested witnesses and the evidences of daughter of another deceased attesting witness was adduced by the defendant. plaintiffs have failed to prove existence of any suspicious circumstances surrounding due execution to Ex.D.1 Will Deed by Sharaba Shetty. On the other hand P.W.1 has also clearly admitted the due execution of Ex.D.1 Will Deed by Sharaba Shetty in respect of Item No.1 of the suit schedule property. Under these facts and circumstances, I am of the opinion that the defendant has proved the due execution of Will Deed dated 26.04.2000 by his deceased father Sharaba Shetty in his favour with respect to suit schedule Item No.1 property as per Sec.63 of the Indian Evidence Act and as per Sec.68 and 69 of the Indian Evidence Act.
20 O.S.No.2097/202020. Admittedly, the suit schedule Item No.1 property situated at Bengaluru was the self acquired property of Sharaba Shetty and it was purchased by him as per Ex.P.1 Sale Deed. As such, the said property will become his self acquired property. Hence, Sharaba Shetty has got right to dispose of the said property as per his will and wish. Sharaba Shetty during his life time has executed the Will Deed with respect to Item No.1 property in the name of defendant. The due execution of the said Will Deed is proved by the defendant. As such, it can be given to the conclusion that Sharaba Shetty was not died intestate with respect to Item No.1 property. Further suit schedule Item No.1 property cannot be considered as joint family property of plaintiffs and defendant. In view execution of the Will Deed by Sharaba Shetty in favour of the defendant, the defendant alone will become the absolute owner of the suit schedule Item No.1 property. The plaintiffs will get no right or share over the suit schedule Item No.1 property. As such, the plaintiffs are not entitled for partition and separate possession of their legitimate share in the suit schedule Item No.1 property.
21. Admittedly, the suit schedule Item No.2 property is also the self acquired of Sharaba Shetty. Though the plaintiffs in the suit plaint have contended that on 20.04.2001, Sharaba Shetty has executed Will Deed with respect to Item No.2 21 O.S.No.2097/2020 property in the name of the plaintiffs No.2, they have contended that the said Will Deed is incomplete document as the same has not been attested by the witnesses. Further though the plaintiffs have contended that the Will Deed dated 26.04.2000 was also not attested by the attesting witnesses, the plaintiffs have failed to prove their said contentions. Nothing has been elicited during the course of cross-examination of D.W.1 to prove that Sharaba Shetty has executed incomplete Will Deed with respect to Item No.1 property and the defendant has got created Ex.D.1 Will Deed after the death of Sharaba Shetty by interpolating the signatures of attesting witnesses. Nothing has been elicited during the course of cross-examination of D.W.1 to prove that Ex.D.1 Will Deed is created by him and Will Deed that was executed by Sharaba Shetty was incomplete Will Deed.
22. The plaintiffs in the suit plaint and P.W.1 in his examination-in-chief has clearly stated that the plaintiffs are not basing their claim on the basis of any Will Deed executed by Sharaba Shetty. Further the plaintiffs have also not produced any Will Deed executed by Sharaba Shetty with respect to Item No.2 property. Further the defendant has also not produced any Will Deed executed by Sharaba Shetty with respect to Item No.2 property. It is also not a case of the plaintiffs that Sharaba Shetty has executed the Will Deed with respect to Item No.2 22 O.S.No.2097/2020 property in accordance with Sec.63 of the Indian Succession Act. In order to come to the conclusion that Sharaba Shetty has executed the Will Deed with respect to Item No.2 property, production of the original Will Deed executed by Sharaba Shetty is very much necessary. Further the said Will Deed has to be proved as provided U/Sec.63 of the Indian Succession Act and Sec.68 of the Indian Evidence Act. As such, I am of the opinion and it can be come to the conclusion that Sharaba Shetty was died intestate with respect to suit schedule Item No.2 property.
23. The defendant is not claiming any right over the suit schedule Item No.2 property. He has also not made any counter claim in his written statement praying to give his share in suit schedule Item No.2 property. Since the suit schedule Item No.2 property is the self acquired property of Sharaba Shetty and since he was died intestate, the suit schedule Item No.2 property has to be succeeded by his legal hairs in the manner as provide U/Sec.8 of the Hindu Succession Act. Sec.8 of the Hindu Succession Act provides that the property of the male Hindu dying intestate shall devolve firstly upon the heirs, being the relatives specified in class-I of the schedule. Son, daughter, widow, mother etc., are shown as class-I legal heirs in the schedule of Hindu Succession Act. The plaintiffs No.1 being the wife of the deceased Sharaba Shetty 23 O.S.No.2097/2020 and plaintiffs No.2, 3, 4 and defendant being the children of deceased Sharaba Shetty will come under the category of class-I hairs. As such, the plaintiffs and defendant are entitled to succeed to the suit schedule Item No.2 property left by deceased Sharaba Shetty as provided under Sec.8 of Hindu Succession Act. They are entitled to get equal share in the said property. Mere intention of Sharaba Shetty to give suit schedule Item No.2 property only to the plaintiffs No.2 and mere execution of incomplete Will Deed in the name of plaintiffs No.2 with respect to suit schedule Item No.2 property without any Will Deed in writing is not sufficient to hold that there is a Will Deed with respect to suit schedule Item No.2 property in the name of plaintiffs No.2 and to deny the rights of the other plaintiffs and defendant with respect to the suit schedule Item No.2 property.
24. As such, I am of the opinion that the plaintiffs have proved that the suit schedule Item No.2 property is their joint family property and they are entitled to get share in the suit schedule Item No.2 property. The plaintiffs have failed to prove the suit schedule Item No.1 property is the joint family property and they are entitled to get share in the suit schedule Item No.1 property. Since it is not case of both the parties that partition was effected in the properties of the Sharaba Shetty, I am of the opinion that it can come to the conclusion that the plaintiffs 24 O.S.No.2097/2020 have proved that no partition is effected in the suit schedule Item No.2 property. The plaintiffs have partly proved Issue No.1. Accordingly, I answer Issue No.1 in Partly Affirmative.
25. The defendant has contended that Will Deed dated 26.04.2000 and 20.04.2001 executed by Sharaba Shetty has been acted upon and as such the present suit is not maintainable. Though the defendant has proved that Sharaba Shetty has executed the Will Deed dated 26.04.2000 and though the defendant has proved that Khatha of the suit schedule Item No.1 property is changed in his name and though he has proved the said Will Deed has been acted upon, the defendant has failed to prove the existence of Will Deed dated 20.04.2001 alleged to have been executed by Sharaba Shetty and failed to prove the said Will Deed has been acted upon. The plaintiffs have not admitted the execution of Will Deed dated 20.04.2001 and they have not taken any contention that the said Will Deed has been acted upon. Hence, I am of the opinion that the defendant has partly proved Issue No.4. Accordingly, I answer Issue No.4 in Partly Affirmative.
26. Issue No.2, 3, 5 and 6:- These issues are interrelated to each other and as such they are taken together for discussion to avoid repetition of facts.
25 O.S.No.2097/2020According to the plaintiffs, they are having 1/5 th share each in the suit schedule properties. P.W.1 in his examination- in-chief has stated that the plaintiffs have demanded the defendant to effect partition in the suit schedule properties and to give their share in the suit schedule properties and defendant has refused to give their share. It is already discussed and held above that the suit schedule Item No.2 property is the only joint family property of plaintiffs and defendant which is available for partition after the death of Sharaba Shetty. It is already discussed and held above that Item No.1 of the suit schedule property cannot be considered as joint family property and the plaintiffs are not having any share in the suit schedule Item No.1 property. As such, the plaintiffs are having share only with respect to suit schedule Item No.2 property and not in suit schedule Item No.1 property. The plaintiffs No.1 being the wife of the deceased Sharaba Shetty, plaintiffs No.2, 3, 4 and defendant being the children of deceased Sharaba Shetty are entitled to get 1 share each in suit schedule Item No.2 property. The defendant 3(a) to 3(c) being the children of deceased plaintiffs No.3 who is also one of the daughter of deceased Sharaba Shetty are together entitled to get 1 share in suit schedule Item No.2 property. As such, suit schedule Item No.2 property has to be divided into 5 shares. As such, plaintiffs No.1, 2 and 4 are entitled to get 1/5 th share each in suit schedule Item No.2 property and defendant 26 O.S.No.2097/2020 entitled to get 1/5th share in the suit schedule Item No.2 property and plaintiffs No.3(a) to 3(c) together are entitled to get 1/5th share in the suit schedule Item No.2 property. The plaintiffs have produced Ex.P.26 which is the certified copy of the Release Deed executed by plaintiffs No.1 and 4 in favour of plaintiffs No.2 by releasing of their rights in suit schedule Item No.2 property in the name of plaintiffs No.2. The original Release Deed is not produced by P.W.1. P.W.1 in his cross- examination has admitted that in suit schedule Item No.2 property, he and his brothers and sisters and mother are having equal share. He has further admitted that in Ex.P.26 it is mentioned that except plaintiffs No.1 and 4 no other persons have got right in Item No.2 property. Under these facts and circumstances, I am of the opinion that P.W.1 has not proved Ex.P.26 in accordance with law and it cannot come to the conclusion that the plaintiffs No.1 and 4 have released their rights in suit schedule Item N.2 property in favour of plaintiffs No.2. Even if Ex.P.26 is believed and even if the plaintiffs No.1 and 4 are willing to release their rights in the said property in favour of plaintiffs No.2, they can do it even at the stage of FDP proceedings. But at present it can be come to the conclusion that the plaintiffs No.1, 2 and 4 are entitled to get 1/5 th share each and plaintiffs No.3(a) to 3(c) together are entitled to get 1/5th share in the suit schedule Item No.2 property. The plaintiffs have proved that they have demanded the partition 27 O.S.No.2097/2020 from the defendant and defendant has refused to give their share in suit schedule Item No.2 property. Hence, I answer Issue No.3 in Affirmative and Issued No. 2 in Partly Affirmative.
27. The defendant has contended the suit is barred by law of limitation. But the said contention of the defendant cannot be acceptable one. The cause of action for filing the suit as pleased in the suit plaint arise when the plaintiffs have demanded the defendant to effect partition in the suit schedule properties and when the same is refused by defendant. The plaintiffs have issued legal notice to defendant on 10.04.2019. The present suit was filed in the year 2020. The copy of the legal notice and postal acknowledgments are produced at Ex.P.17 to P.20 by the plaintiffs. The plaintiffs have filed the present suit immediately after they demanded partition of their share in suit schedule property from the defendant by issuing legal notice and when they came to know the defendant has refused to give their share in the suit schedule property. No limitation period is prescribed for instituting the suit for partition. The suit filed by the plaintiffs cannot be considered as time barred. Hence, I answer Issue No.5 in Negative.
28. The plaintiffs have sought for partition and separate possession of their 1/5th share each in the suit schedule 28 O.S.No.2097/2020 properties. It is already discussed and held above that the plaintiffs are not entitled for the partition in suit schedule Item No.1 property. It is held the defendant is the owner of the suit schedule Item No.1 property on the basis of the Will Deed executed by deceased Sharaba Shetty. When the defendant became the owner of the suit schedule Item No.1 property the plaintiffs cannot insist the defendant to furnish the account partitioning to suit schedule Item No.1 property. When the plaintiffs are not having any right or share in suit schedule Item No.1 property, they are not entitled to get the relief No.2 as prayed for in the suit plaint. Further it is held that the plaintiffs are entitled to get share in suit schedule Item No.2. As such, I am of the opinion that the suit filed by the plaintiffs is partly deserves to be decreed. Only on the ground that the defendant has not made any counter claim in the written statement, his right in the suit schedule Item No.2 property cannot be denied. As such, I answer Issue No.6 in Partly Affirmative.
29. Issue No.7:- For the discussions above made, I proceed to pass the following:
ORDER The suit filed by the plaintiffs under Order VII Rule 1 read with Sec.26 of C.P.C. is hereby partly decreed.29 O.S.No.2097/2020
It is held that the plaintiffs No.1, 2 and 4 and defendant are entitled to get 1/5th share each and plaintiffs No.3(a) to 3(c) together are entitled to get 1/5th share in the suit schedule Item No.2 property.
The relief of partition with respect to suit schedule Item No.1 property is hereby rejected.
The defendant is directed to pay court fee on his 1/5th share of suit schedule Item No.2 property.
Having regard to the nature of the suit and having regard to the relationship between the parties to the suit, both the parties to the suit are hereby directed to bear their own cost.
Draw preliminary decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the open court on this the 3 rd day of February, 2024).
Digitally signed
PRAMODA by PRAMODA B G
BG Date: 2024.02.07
17:34:40 +0530
(B.G.Pramoda)
LII Addl. City Civil & Sessions Judge,
Bengaluru.
ANNEXURE
List of witnesses examined for the plaintiffs :
P.W.1 S.J.Shankar List of the documents marked for the plaintiffs :
Ex.P.1 Certified copy of sale deed dated 10.08.1964 Ex.P.2 Certified copy of sale deed dated 01.09.1982 Ex.P.3 Certified copy of Resolution of BBMP dated 30 O.S.No.2097/2020 27.08.2001 Ex.P.4 Certified copy of Notice of BBMP dated 04.09.2001 Ex.P.5 to 7 Certified copies of 3 Uttarapatras issued by the BBMP dated 04.09.2001 Ex.P.8 Certified copy of Application for khatha Ex.P.9 Certified copy Application for transfer of khatha Ex.P.10 Certified copy of NIC bond dated 23.08.2001 bearing No.48AA772620 Ex.P.11 Certified copy of Affidavit of S.Mahesh dated 20.08.2001 Ex.P.12 Certified copy of tax paid receipt dated 06.05.2001 Ex.P.13 Certified copy of Death certificate of Sharaba Shetty Ex.P.14 Certified copy of special notice dated 21.11.1999 issued by BBMP Ex.P.15 Certified copy of khatha certificate dated 01.09.2012 Ex.P.16 Certified copy of khatha extract dated 01.09.2012 Ex.P.17 Office copy of legal notice dated 10.04.2019 Ex.P.18 to 20 3 postal acknowledgements Ex.P.21 Original Uttarapatra dated 29.05.2013 Ex.P.22 Certified copy of Death certificate of Sharaba Shetty Ex.P.23 Will Deed dated 26.04.2020 obtained under RTI Ex.P.23(a) Typed copy of Ex.P.23 Ex.P.24 Sale Deed dated 10.08.1964 obtained under RTI Ex.P.24(a) Typed copy of Ex.P.24 Ex.P.25 Khatha certificate of Property No.1/2 obtained under RTI Ex.P.25(a) Typed copy of Ex.P.25 Ex.P.26 Online certified copy of the Release Deed dated 29.08.2022 Ex.P.27 EC of site No.22 from 01.04.2021 to 19.02.2023 31 O.S.No.2097/2020 List of the witnesses examined for the defendants:
D.W.1 Mahesh S. D.W.2 B.Sunder Raju D.W.3 Smt.Hemalatha
List of the documents marked for the defendants:
Ex.D.1 Will Deed dated 26.04.2000
Ex.D.2 Hand written Will deed dated 26.04.2000
Ex.D.3 Certified copy of death certificate of
N.Nagaraja
Digitally signed
PRAMODA by PRAMODA B G
BG Date: 2024.02.07
17:34:49 +0530
LII Addl. City Civil & Sessions Judge,
Bengaluru.
32 O.S.No.2097/2020
33 O.S.No.2097/2020
34 O.S.No.2097/2020