Karnataka High Court
Smt. Sharadamma vs Sri S P Anandkumar on 18 March, 2026
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO.2012 OF 2006 (DEC)
BETWEEN:
1 . SMT. SHARADAMMA
W/O LATE S G PRANESHA MURTHY
SINCE DEAD BY LRS
2 . SMT. SUBHASHINI
D/O LATE S G PRANESHA MURTHY
AGED ABOUT 63 YEARS,
R/O NO.7, 4TH FLOOR,
BALAJI NILAYA, 10TH CROSS,
MALLESHWARAM,
PIPE LINE ROAD,
BANGALORE - 560 003.
... APPELLANTS
(BY SRI. SURESH S. LOKRE, SENIOR COUNSEL FOR
SRI. SHRAVAN S. LOKRE, ADVOCATE;
(V/O DATED 05.04.2024, A1 IS DEAD AND A2 AND R1 ARE
LRS OF DECEASED A1))
AND:
1. SRI S P ANANDKUMAR
S/O LATE S G PRANESHA MURTHY
AGED ABOUT 58 YEARS
R/O NO.1730, II STREET,
FIRST FLOOR, 1ST E MAIN ROAD,
RAJAJINAGAR,
BANGALORE - 560 010.
2. SRI A GURUPRASAD
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S/O S P ANANDAKUMAR
AGED ABOUT 18 YEARS
R/O NO.1730, II STREET
FIRST FLOOR, 1ST 'E' MAIN ROAD
RAJAJINAGAR, BANGALORE - 560 010.
... RESPONDENTS
(BY SRI. B.P. PUTTASIDDAIAH, ADVOCATE FOR R1 AND R2)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED
27.09.2006 PASSED IN O.S.NO.15210/1999 ON THE FILE OF
THE XXVIII ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT,
BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED ON 21.02.2026 FOR JUDGMENT COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE M.G.S.KAMAL
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) This appeal is by the plaintiffs in O.S.No.15210/1999 being aggrieved by the judgment and decree dated 27.09.2006 passed therein on the file of XXVIII Additional City Civil Judge, Mayo Hall Unit, Bengaluru (hereinafter referred to as 'the Trial Court'), by which, the trial Court had dismissed the suit of the plaintiffs.
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2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the plaintiffs and the respondents were the defendants.
3. Plaintiffs filed the above suit seeking following reliefs:
'' a. Declaration that the 1st plaintiff is the co-owner of the Suit Schedule Property along with the late SG Pranesh Murthy;
b. Declaration that the will dated 17.5.1997 executed by the late SG Pranesh Murthy registered, as Doc.68/97-98 is null and void;
c. Declaration that the will dated 1.12.1986 registered on 11.5.1989 as document no.41/1989 at Rajajinagar Sub-
Registrars office in page No.245-248 of Volume 36 of Book III. Is the last will and testament of the late SG Pranesha Murthy to the extent of his half share;
d. Permanent injunction restraining the defendants or any person claiming under them or through them interfering with the peaceful possession and enjoyment of the Suit Schedule Property;
e. Grant such other relief or consequential reliefs as this court deems fit in the facts and circumstances of the case in the interest of justice and equity.''
4. Brief facts of the case are ;
(a) That one Sri. S. G. Pranesha Murthy was the husband of plaintiff No.1. Said Sri. S. G. Pranesha Murthy and plaintiff No.1 had two sons, namely, S P Vijay Kumar and S P Anand Kumar- Defendant No.1 and a daughter, Smt. Subhashini- plaintiff No.2.
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(b) That a site bearing No.1730, measuring 40 X 30 feet situated in 2nd street, 'E' Main Road, Rajajinagar, Bengaluru was purchased in the name of late Sri. S. G. Pranesha Murthy in terms of a deed of sale dated 21.05.1968. That the plaintiff No.1 was working as a teacher in a Government School. Sri. S. G. Pranesha Murthy was working in Karnataka Electricity Board. Plaintiff No.1 retired from her service in the year 1988 while Sri. S. G. Pranesha Murthy also retired from service in the year 1981.
(c) Plaintiff No.1 had contributed from her earnings and various hand loans towards purchase of the suit schedule property and for construction of ground floor and first floor of the house thereon. It is only for the purpose of obtaining the loan, the deed of sale was executed and registered in his name. As such, plaintiff is the co-owner of the property along with her husband Sri. S. G. Pranesha Murthy.
(d) That Sri.Vijay Kumar, the first son of the plaintiff No.1 had been settled with properties which he had inherited from the foster parents. Sri. S. G. Pranesha Murthy, out of his retirement benefits and earning after his retirement as an electrical contractor purchased two properties in the name of -5- defendant No.1. Defendant No.1 was residing at No.1902, K- 15, 12th main road, Rajajinagar 1st Block, Bangalore.
(e) That in order to protect the interest of the plaintiffs, Sri. S. G. Pranesha Murthy had executed a Will dated 01.12.1986 registered on 11.05.1989 in the office of Sub-Registrar, Rajajinagar, providing life interest to the plaintiff No.1 in the suit schedule property so that she could maintain herself from the rents received from the ground floor portion which had been leased out and that after the death of plaintiff No.1 the ground floor portion will go to the defendant No.1 and the first floor to the plaintiff No.2. Since the said action of Sri. S. G. Pranesha Murthy was with good intention, plaintiff No.1 agreed for the said condition.
(f) That Sri. S. G. Pranesha Murthy, thereafter began to suffer from various ailments. He was diagnosed of diabetes. Again in the year 1991, he developed heart problem. Sri. S. G. Pranesha Murthy during the year 1995 was diagnosed with cancer. Plaintiff No.1 used to regularly take him for treatment to Kidwai Hospital, and she would be constantly beside him whenever he was admitted to the hospital. Sri. S. G. Pranesha Murthy suffered from mental nervous problem and consequently plaintiff No.1 took him to NIMHANS for treatment. -6- By 1997, health of Sri. S. G. Pranesha Murthy had deteriorated to a large extent as he was in advanced stage of cancer coupled with heart problem, mental and eye problems with high blood pressure. Sri. S. G. Pranesha Murthy used to go over to the house of defendant No.1 in order to collect the money which was kept with the defendant No.1 for his treatment. That Sri. S. G. Pranesha Murthy was under chemotherapy treatment and was being given heavy dosage of drugs to combat cancer since 1996.
(g) Plaintiff No.1 was constantly by his bedside nursing him. During the period of illness of Sri. S. G. Pranesha Murthy, health of plaintiff No.1 was also failing, as such she shifted to an ashram for sometime to enable her to commute to the hospital easily to be beside her husband.
(h) Defendant No.1 never used to bother about or accompany said Sri. S. G. Pranesha Murthy. All the money which late Sri. S. G. Pranesha Murthy was entitled to from the earnings as an electrical contractor was being collected by defendant No.1 and kept with himself. Defendant No.1 used to come and take signed cheques from the late Sri. S. G. Pranesha Murthy for withdrawing the money from the contract work and money received from the school.
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(i) In the year 1992, plaintiff No.2 was residing in the first floor of the suit schedule property along with her husband. Plaintiff No.1 and late Sri. S. G. Pranesha Murthy were together residing on the ground floor. However, in the year 1995 husband of plaintiff No.2 left her and started staying separately. Hence, plaintiff No.2 started residing with plaintiff No.1 and her father in the ground floor. Due to the fact the husband of plaintiff No.2 had deserted her, Sri. S. G. Pranesha Murthy was contemplating changing the Will to give the first floor portion to the plaintiff No.2 absolutely. He was very supportive and also advised her to file a mutual consent. Late Sri. S. G. Pranesha Murthy used to constantly worry about the future of plaintiff No.2.
(j) That since the year 1995, Sri. S. G. Pranesha Murthy was not physically fit. Shock of suffering from cancer rendered him emotionally and mentally unfit to make proper sound decision. Ultimately, Sri. S. G. Pranesha Murthy passed away on 30.08.1998 after prolonged illness.
(k) Defendant No.1 thereafter came and started residing in the first floor of suit schedule property claiming his right on the basis of an alleged Will dated 17.05.1997, said to have been -8- executed by Sri. S. G. Pranesha Murthy. Plaintiffs obtained the certified copy, and were surprised to see the contents of said Will, in which, defendant No.1 sought to deprive the plaintiffs of their share in the suit schedule property. The alleged Will said to have been executed by late Sri. S. G. Pranesha Murthy on 17.05.1997, appears to have been made up and is concocted document.
(l) The said document is surrounded by suspicious circumstances and do not reflect true intention and desire of late Sri. S. G. Pranesha Murthy. There are several inconsistencies, improbabilities that surrounds the alleged Will. The address of late Sri. S. G. Pranesha Murthy shown in the Will is wrong and it is in fact the address of defendant No.1. That Sri. S. G. Pranesha Murthy at no point of time had shifted to the address shown in the alleged Will and had in fact been residing in the suit schedule property.
(m) In the said Will late Sri. S. G. Pranesha Murthy has indicated that he is in the early stage of the cancer which is far from truth. Sri. S. G. Pranesha Murthy had been diagnosed with the cancer in the year 1995 and had undergone operation. He was also undergoing chemotherapy which is administered in advanced stages and not in the early stages. -9-
(n) In the alleged Will, the late Sri. S. G. Pranesha Murthy appears to have blamed the plaintiff No.2 for her marital problems. On the other hand, husband of plaintiff No.2 had left her in the year 1995. In fact, husband of the plaintiff No.2 moved for mutual consent of divorce. Plaintiff No.1 was against the said divorce. Sri. S. G. Pranesha Murthy, was very supportive and since 1995 was worried about the future of plaintiff No.2 as her husband had deserted her. That Sri. S. G. Pranesha Murthy advised her to agree for mutual consent of divorce as demanded by the husband. Accordingly, mutual consent petition was filed in M.C.No.670/1997. The reason set out in the alleged Will to disinherit the plaintiff No.2 is false.
(o) Sri. S. G. Pranesha Murthy was aware that the plaintiff No.1 had no means to support herself and hence had provided for in the earlier Will dated 01.12.1986 which is the only Will executed by Sri. S. G. Pranesha Murthy.
(p) Alleged Will dated 17.05.1997 was totally contrary to the intention and desire of the Sri. S. G. Pranesha Murthy as expressed to the plaintiff No.1 even before his death and even as on the date of alleged execution of Will and there had been no occasion or changed circumstances for late Sri. S. G.
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Pranesha Murthy to change the earlier Will and deprive the plaintiffs.
(q) Defendant No.1 taking advantage of the weak mind of the late Sri. S. G. Pranesha Murthy and being in dominant position to influence him has exercised undue influence to create the subsequent alleged Will dated 17.05.1997. Defendant No.1 was controlling the finance of the late Sri. S. G. Pranesha Murthy and has got the said Will prepared.
(r) That defendant No.1 in order to make undue gain for himself even played a major role in trying to unduly influence the mind of late Sri. S. G. Pranesha Murthy and had by misrepresentation and fraud made him to believe the plaintiff No.1 did not care for him.
(s) That as per the subsequent Will, defendant Nos.1 and 2 have now been bequeathed with a share that had in fact been bequeathed to the plaintiffs in addition to what already has been bequeathed to defendant No.1. This behaviour of Sri. S. G. Pranesha Murthy totally excluding the plaintiffs is not in accordance with normal behaviour. That the unnatural disposition made by the Sri. S.G.Pranesha Murthy in specifically debarring the plaintiffs in terms of earlier Will and giving entire
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share to the defendants is indicative of misrepresentation, fraud and untrue influence. Thus, contenting as above, filed the above suit.
9. Written statement is filed by the defendants. While denying the plaint averments it is contended;
(a) that Sri. S.G. Pranesha Murthy had acquired the suit schedule property in terms of sale deed dated 21.05.1968 and he had subsequently constructed ground floor and first floor obtaining loan from his employer and other financial institutions. In the year 1984 Bangalore Development Authority had executed the deed of sale in his favour. Plaintiff No.1 has no manner of right, title or interest and her occupation is an unauthorised one.
(b) Sri. S. G. Pranesha Murthy being the absolute owner in possession of the suit schedule property had every right to dispose of the property as he wished. Plaintiff No.1 has no manner of right, title or interest over the suit schedule property to continue to be in possession of the ground floor portion of the suit schedule property.
(c) The plaintiffs did not provide any treatment to deceased S.G. Pranesha Murthy. It is the defendant No.1 who had taken
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care of him. S.G. Pranesha Murthy has been staying with the defendants since 1995. Plaintiff No.1 was responsible for separating plaintiff No.2 from her husband. Plaintiff No.2 never gave respect to her father and husband.
(d) That S. G. Pranesha Murthy was in good health except that he was suffering from bone cancer. He was visiting temples during January and March 1998.
(e) Plaintiff No.1 never bothered to take care of S.G. Pranesha Murthy. She had left his company and was residing in an Ashram. Defendant No.1 has spent more than Rs.2,50,000/- for the treatment of late S. G. Pranesha Murthy.
(f) That S. G. Pranesha Murthy bequeathed the suit schedule property in favor of defendants out of his love and affection towards them. Defendants were not aware of the Will dated 17.05.1997, which came to their knowledge only after death of S. G. Pranesha Murthy. Allegation of attestators to the Will being close friends of defendant No.1 is denied. Defendants are not at all aware of the Will executed by late S. G. Pranesha Murthy.
(g) That plaintiffs knowing fully well that Sri. S. G. Pranesha Murthy was the absolute owner in possession of the suit
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schedule property and having bequeathed the same in favour of the defendants being in sound state of mind, have filed frivolous suit, defendants also made a counter claim of mesne profits. Hence, sought for dismissal of the suit.
10. Based on the pleadings, trial Court framed the following issues:
'' 1) Whether the plaintiffs prove that plaintiff No.1 is the co- owner of suit schedule property along with late S.G. Pranesh Murthy?
2) Whether plaintiffs prove that late S.G. Pranesh Murthy executed will dated 01.12.1986?
3) If so, whether plaintiffs prove that it is only in respect of his half share?
4) Whether plaintiffs prove that Will dated 17.05.1997 is null and void?
5) Whether plaintiffs prove that they are in lawful possession of suit property?
6) Whether plaintiffs prove that defendant is making attempts to dispossess plaintiffs?
7) Whether the defendant proves that late S.G. Pranesha Murthy has executed Will dated 17.05.1997 in sound disposing state of mind?
8) What reliefs parties are entitled to?
9) What order or decree?''
11. Plaintiff No.1 has examined herself as PW1 and exhibited 26 documents marked as Ex.P1 to Ex.P26. On the other hand, the defendants examined defendant No.1 as DW.1 and other
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witnesses as DW2 to DW5 and exhibited 17 documents marked as Ex.D1 to Ex.D17.
12. On appreciation of the evidence, the trial Court has answered issue Nos.1, 4 and 6 in the negative, Issue Nos.2, 5 and 7 in the affirmative. Issue Nos.3 and 8 have been answered accordingly. Consequently, the trial Court dismissed this suit passing following:
'' ORDER The suit of the plaintiffs is hereby dismissed.
The Counter claim of the defendants is partly allowed. The defendants are entitled for delivery of vacant possession of the ground floor portion of the suit schedule property. The relief for decree of Rs.45,000/- as future mesne profits and for the relief of permanent injunction is hereby dismissed. Under the circumstances, no order as to the cost. '' Being aggrieved, the plaintiffs are before this Court.
13. Sri. Suresh S Lokre, learned Senior counsel appearing for appellants taking this Court through the records submitted;
(a) that the trial Court without appreciating the pleading and evidence led in by the plaintiffs has come to erroneous conclusion of plaintiff No.1 not being the co-owner of the suit schedule property.
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(b) that provisions of Section 45 of the Transfer of Property Act, 1882 has not been adverted to by the trial Court. That when two or more persons purchase a property out of a common fund, the share of each of those persons would be the same as their interest in the common fund. That the trial Court has lost sight of this legal requirement.
(c) That plaintiff No.1 was employed as a school teacher and she had sufficient means of income from her salary and money from her tuition and also from her school income to assist purchase of the suit schedule property as per the sale deed dated 28.06.1984. That enough materials were placed on record that even though the site was purchased in terms of deed of sale dated 28.06.1984, the sanction plan and the building licence indicated the same was obtained in the year 1968, contribution of money made by plaintiff No.1 is noticeable from the fact that the house property has been improved and constructed by way of ground floor and the first floor.
(d) Admittedly, Sri. S. G. Pranesha Murthy and plaintiff No.1 have lived together. Most of the loan have been cleared by the funds raised by plaintiff No.1, especially out of the sale deeds executed by plaintiff No.1 in favour of one S.C. Kohli vide
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registered sale deed dated 03.09.1986. The fact that plaintiff No.1 was a school teacher and had sufficient income as per the salary certificate produced before the Court and the fact that she had contributed a major portion of amount of money towards the improvement of the property and for construction of the first floor etc., had not been considered by the trial Court, resulting in erroneous judgment on the Issue No.1.
(e) Ex.P4 is a registered Will dated 01.12.1986 executed by Sri. S. G. Pranesha Murthy in terms of which he had created life interest in favour of plaintiff No.1 and had made it clear that after her demise plaintiff No.2 and her second son namely, Sri. S.P. Ananda Kumar-defendant No.1 would be succeeding to the suit property equally. The said arrangement was made purely on the fact that plaintiff No.1 as a school teacher having sufficient income and money had invested her earnings for purchase of the suit schedule property as well as for construction of the same.
(f) The Will dated 01.12.1986 produced at Ex.P4, executed by Sri. S. G. Pranesha Murthy when he was aged about 60 years is not disputed by the defendants. That upon his demise the said Will has come into existence. Ex.P4 had been executed by Sri. S. G. Pranesha Murthy, while he was in sound mind of
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disposition. There was no ill-will or hatred of any nature whatsoever either against plaintiff No.1 or plaintiff No.2. Ex.P4 has been admitted by the defendants, as even the defendants under the said Will have been given share in the suit schedule property. Since there is a mention of revocation of the earlier Will registered dated 11.05.1989 in the subsequent alleged Will dated 17.05.1997, defendants were completely aware of earlier Will which had been duly executed by Sri. S. G. Pranesha Murthy.
(g) There was no need or necessity for Sri. S. G. Pranesha Murthy to have executed the registered Will dated 01.12.1986 as per Ex.P4 and to change his mind after ten years for executing alleged Will dated 17.05.1997. Even otherwise, by the said date Sri. S. G. Pranesha Murthy was diagnosed of the prostate cancer which had reached the bone cancer. The treatment was intrusive of Schedule 'H' drugs as prescribed by the doctors which resulted in his death on 30.08.1998. This indicate that, until his demise on 30.08.1998, there was no whisper about the execution of the Will dated 17.05.1997 as per Ex.D12. Sri. S. G. Pranesha Murthy was not in his senses nor was in fit state of mind and body as he was bed-ridden on account of advanced stage of the cancer which had moved
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beyond prostate cancer into the bone cancer affecting his spine which had made him totally bed-ridden.
(h) The Will dated 17.05.1997 has come up under extremely suspicious circumstances. That admittedly defendant No.1 had contacted inter-religious marriage. His wife after the marriage had changed her name from Zubeda to Lakshmi. That the said Lakshmi is shown in Ex.D12 as the person identifying the signature of the deceased. However, she has not been examined. One R. Srinivas is shown to be one of the attesting witnesses examined as DW4, his evidence is unreliable. Scribe of the Will examined as DW5, has not supported the case of the defendants. Evidence of DW2 and DW3 indeed supports the case of the plaintiffs. Hence, sought for allowing of the appeal.
He relied upon the following judgments in support of his submissions;
1). K. Laxmanan vs Thekkayil Padmini and Others reported in 2009 (1) Property Law Decisions 1 (SC).
2). S.R. Srinivasa and others Vs S. Padmavathamma reported in (2010) 5 SCC 274.
3). Moonga Devi and others. Vs Radha Ballabh reported in 1973 (2) SCC 112.
4). Adivekka and others Vs Hanamavva Kom Venkatesh (dead) by LRS and another reported in (2007) 7 SCC 91.
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5). Niranjan Umeshchandra Joshi vs Mrudula Jyoti Rao and others reported in (2006) 13 SCC 433.
6). Savithri and others. Vs Karthyayani Amma and others reported (2007) 11 SCC 621.
7). Balathandayutham and anr. Vs Ezhilarasan reported in (2010) 5 SCC 770.
8). Smt. M Printer and others Vs Marcel Martins reported in ILR 2002 KAR 3757.
9). Kashibai W/o Lachiram and anr. Vs Parwatibai W/o Lachiram and others reported in (1995)6 SCC 213.
10). B. Rajegowda and another Vs H.B. Shankaregowda and others reported in 2006 (3) Civil Law Judgments 705.
14. On the other hand, Sri. B.P.Puttasiddaiah, learned counsel for the defendants/respondents submitted;
(a) that the case of plaintiff No.1 of she being the owner of the suit schedule property has not been established.
(b) that there is contradiction and variation in the plaint averments as well as in the evidence. Plaintiff No.1 has not produced any acceptable material evidence to prove her claim of she having contributed in purchasing site and construction of ground floor and the first floor of the suit schedule property. Therefore, the relief of declaration of the effect that she is the owner of half of the suit schedule property cannot be granted.
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(c) that admittedly plaintiff No.1 was residing in Ashram. That witnesses DW2 and DW3 have deposed with regard to plaintiff No.1 not having good relationship with the deceased S. G. Pranesha Murthy.
(d) that plaintiff No.2 having obtained divorce from her husband, joining hands with plaintiff No.1 was acting contrary to interest of the S.G Pranesha Murthy. Therefore, S.G Pranesha Murthy had changed his mind and revoked the earlier Will dated 01.12.1986 and had executed the subsequent Will dated 17.05.1997. That it is the defendants who had taken care of said S. G. Pranesha Murthy during his last days.
(e) He refers to Ex.D13 and Ex.D14 the complaints which were given by S. G. Pranesha Murthy during his lifetime. Referring to the said documents he submitted that at this particular point of time S.G. Pranesha Murthy himself had given a complaint to the Police alleging ill-treatment at the hands of his wife indicating that the subsequent Will dated 17.05.1997 executed by him bequeathing the property exclusively in favour of his son and grandson was natural and there was nothing suspicious about the same.
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(f) that the execution of Will dated 17.05.1997 having been proved in the manner known to law, that is, by examining one of the attesting witnesses namely, Eraiah B/DW2 who has withstood the test of cross-examination. Nothing has been elicited from the said witness to disbelieve the execution of the said Will. Thereby the requirement of Section 68 of the Indian Evidence Act has been met with.
(g) The plaintiff No.1 has admitted of she having read the Will dated 17.05.1997. She had knowledge of the said Will having been executed by S.G. Pranesha Murthy. Therefore the burden is on the plaintiffs to prove that the Will was invalid and unenforceable. Merely because the wife of defendant No.1 has affixed her signature identifying the signature of the testator, the same cannot be a ground to suspect the execution of Will dated 17.05.1997.
(h) He submitted that trial Court has taken into consideration all these aspects of matter and has come to just conclusion in dismissing the suit warranting no interference.
He relied upon the following judgments in support of his case;
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1. Ramabai Padmakar Patil (dead) through LRS and others Vs. Rukminibai Vishnu Vekhande and others reported in (2003) 8 SCC 537.
2. Gurdev Kaur and Others Vs. Kaki and others reported in AIR 2006 SC 1975.
3. Baij Nath Chaudhary Vs. Dilip Kumar and others reported in (2001) 9 SCC 316.
15. Heard. Perused the records.
16. Points that arise for consideration is;
"(1) Whether plaintiff No.1 has proved that she is a co-owner of the suit schedule property along with late S. G. Pranesha Murthy?
(2) Whether plaintiff proves the execution of Will dated 01.12.1986 by S. G.Pranesha Murthy?
(3) Whether Will dated 17.5.1997 is valid and enforceable?
(4) Whether plaintiffs are entitled for relief of permanent injunction?"
REGARDING POINT NO.1:
17. Though the plaintiff No.1 has claimed that she has contributed her earnings from her salaries as a government teacher as well as from her borrowings towards purchasing the site and construction of ground and first floor of the residential building, she has not been able to produce any documentary evidence in this regard. Admittedly, the sale deed dated
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16.05.1968 at Ex.P1 is standing exclusively in the name of the S.G.Pranesha Murthy. Therefore, no reliance can be placed on record proving her claim under the provision of Section 45 of the Transfer of Property Act. It may be as taken note of by the trial Court, the plaintiff No.1 has contributed and taken care of the family needs but to claim she being the co-owner of the suit schedule property there is no legally acceptable evidence made available on record. In the absence of which claim of plaintiff No.1 being co-owner along with S.G. Pranesha Murthy cannot be accepted. Point No.1 is answered accordingly. REGARDING POINT NO.2.
18. According to the plaintiffs deceased S. G. Pranesha Murthy had executed a Will dated 01.12.1986 registered as document No.947/1968-69, at pages 8 to 11, in Volume 96 of Book I, on 11.5.1989 in the office of Sub-Registrar, Rajajinagar. Certified copy of the said Will is produced at Ex.P4 and original is produced by the defendants as Ex.D11. In terms of the said Will, S. G. Pranesha Murthy had bequeathed the suit schedule property in favour of his wife Smt. P. Sharadamma/plaintiff No.1, his son S. P. Anand Kumar/defendant No.1 and his only daughter S.P.
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Subhashini/plaintiff No.2; contents of said Will is extracted hereunder;
"THIS IS THE LAST WILL AND TESTAMENT OF ME Sri. S.G.PRAMESHA MURTHY, aged 60 years, son of Venkataramanappa, residing at No. 1730, 2nd Street, 1st Main Road, Rajajinagar, Bangalore-560 010, made and executed this the 1st day of December 1986 (First Day of December Nineteen eighty-six), at Bangalore in favour of my wife (1) Smt. P.SHARADAMMA, my second son (2) S.P. ANANDAKUMAR and my only daughter (3) S.P. SUBHASHINI, wife of Sri. Sathis Naidu, under the following circumstances.
WHEREAS, I am the absolute owner in possession and enjoyment of the immoveable house property bearing Municipal No.1730 at 2nd stage, 'E' Main Road, Rajajinagar, Bangalore-560010, which is morefully described in the schedule below and hereinafter referred to as the "Schedule property" having purchased as house site in first instance from one Sri. R.Maruthi Rao, s/o Ranganatha Rao, of Palace Guttahalli, Bangalore, under a registered sale deed dated 21-5-1968 registered as Document No. 947/1968-69, at page 8 to 11, in Volume 96 of Book I, on 21-5-1968, and having constructed a building consisting of Ground Floor and First Floor, on it in the year 1969-70, taking loan from my Employer the Karnataka Electricity Board, where I was working, as my self acquired property.
WHEREAS, I have got two sons viz., (1) S.P.VIJAYA KUMAR, now aged 34 years, and (2) S.P. ANANDAEUMAR, aged 32 years, an only daughter named S.P. SUBHSHINI, aged 26 years, and the two sons are married and living separately with their families, having their own employments. My daughter is given in marriage to one Sri. Sathis Naidu, of H Bombay and she is now living happily with her husband at Bombay. My first son S.P.Vijayakumar was brought up by my fauster mother Smt. Thimmakka, who is retired school Teacher, since his childhood and he is living with her and he got the immoveable house property bearing No.9(0ld U/11) Pipeline, Seshadripuram, Bangalore-560 020, under a will dated 27-6-1986, executed by the said Thimmakka, in favour 허 of his minor son V.Vinoda Kumar and he is well of without expecting any help from me.
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NOW WHEREAS, I became old have decided to make a WILL in respect of the schedule property to avoid any dispute between my heirs after my death in respect of the schedule property and accordingly I have decided out of my own free-will volition and desire, being in good state of mind to make WILL in respect of the entire schedule property in favour of my wife, Smt. P. Sharadamma, for her life and after her death the ground floor portion of schedule property in favour of my second son S.P.ANANDAKUMAR and first floor portion of the schedule property in favour of my only daughter S.P.SUBHASHINI, absolutely. I have acquired and owned and schedule property out of my self earnings for which I am the absolute owner and no body has got any right, title or interest over it.
1.This is to be my LAST WILL. It will be effective after my death. It is my wish and desire that after my death, my wife Smt. P. Sharadamma, who is now aged 53 years shall be entitled to the entire schedule property during her life time.She shall enjoy the schedule property exclusively for her maintenance till her death. But she will not have any right or power to alienate the schedule property to any body in any manner. Now, I am residing with my wife in the first floor portion and let out the ground floor portion for a rent of Rs.1,000/- per month to a tenant. After my death she shall have exclusive possession of schedule property and to utilise the rent for her maintenance. After the death of my wife, my son Ananda Kumar shall be entitled to the Ground Floor portion and S.P.Subhashini, shall be entitled to the first floor portion of the schedule property absolutely and for ever. I accordingly declare them as sole beneficiaries and Universal legatee of their respective portions of my this WILL.
2. I hereby leave give demise and bequeath the schedule property for my wife Smt. P.Sharadamma, for her life, an after her death the ground floor portion absolutely and for ever to my son S.P.Anandkumar and first floor portion to my daughter S.P.Subhashini absolutely. When the existing building becomes old and requires to be demolished, due to its age and condition endangering human life and after demolition of the building for the said reason both of then namely S.P.ANANTAKUMAR and S.P.SUBHASHINI shall take the land (site) equally between them.
SCHEDULE HOUSE PROPERTY measuring East to West 40 (forty) feet and North to South 30 (thirty) feet, consisting of ground floor and first floor building bearing Municipal No. 1730, situated at 2nd Stage 'E' Main Road, Rajajinagar, Bangalore-10, bounded on the
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EAST BY:Road WEST By:Private property NORTH By :Private property and SOUTH By: Private property.
IN WITNESS WHEREOF, I S.G. PRANESHA MURTHY, have signed this WILL and TESTAMENT hereunder on the day, month and year first above written at Bangalore, in the presence of the following witnesses:
sd/-
(S.GUPRANESHA MURTHY)
19. Defendants have not disputed the execution of the aforesaid Will. Therefore, there is no requirement of proving the execution of the said Will by the plaintiffs. Thus, the plaintiffs have proved the execution of Will dated 01.12.1986 registered on 11.05.1989. Point No.2 is answered accordingly. REGARDING POINT NO.3:
20. POSITION OF LAW:
(a) Referring its earlier judgment in the case of R VENKATACHALA IYANGAR VS. B.N. THIMMAJAMMA, reported in AIR 1959 SC 443, Apex Court in the case of JASWANT KAUR V. AMRIT KAUR reported in (1977) 1 SCC 369 at paragraph 10 has held as under;
"10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a Will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443 : 1959 Supp 1 SCR 426].
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The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions :
"1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. 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 and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
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5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
(emphasis added)
(b) In the case of GURDIAL KAUR V. KARTAR KAUR reported in (1998) 4 SCC 384 at paragraph 4 the Apex Court has held as under;
"4. The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance. As in the facts and circumstances of the case, the Court of appeal below did not accept the valid execution of the Will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the court of appeal below has also been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs."
20.1. Facts in the instant case:
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(a) The second Will of said S.G. Pranesha Murthy, which the defendants have relied upon is dated 17.05.1997. Plaintiffs have produced certified copy of the said Will at Ex.P12 and the defendants have produced the original of the same as Ex.D12.
It appears in the said Will Sri. S.G. Pranesha Murthy had revoked the earlier Will dated 01.12.1986. In terms of the second Will he has bequeathed the entire suit schedule property in favour of his son S.P.Anand Kumar/ defendant No.1 and grandson A.Guruprasad/ defendant No.2. Contents of the Will dated 17.5.1997 are extracted hereunder;
"I, S.G. PRANESH MURTHY, son of Shri. Venkataramaпappa, residing at Door No: 1902 K-15, 12th Main Road, I Block, Rajajinagar, Bangalore 560 010, make this WILL to be my LAST WILL and TESTAMENT, made and executed this 17th day of May 1997 (Seventeenth day of May One thousand nine hundred and ninety seven) at Bangalore, in favour of my second son (1) S.P. ANANDA KUMAR and (2) A. GURUPRASAD, s/o. S. P. Anandakumar (my grandson).
I hereby revoke all WILLS, codiciis, if any, and any other testamentary documents made by me particularly my WILL dt: 11.5.1989 registered as Document No: 41/89-90 at Rajajinagar Sub-Registrar's Office in Page No: 245-248 Volume 36, of Book III.
I am the absolute owner and in peaceful possession of the property bearing No: 1730, 'E' Main Road, IInd Stage, Rajajinagar, Bangalore 560 010, morefully described in the schedule hereunder hereinafter called the Schedule Property' having purchased as house site in first instance, from one Shri. A. Maruthi Rao, son of Shri. Ranganatha Rao, of Palace Guttahalli, Bangalore, under a registered sale deed dt: 21.5.1968 registered as Document No:
947/68-69 at Page 8 to 11 in Volume 96 of Book I on
21.5.1968 and having constructed a building consisting
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of Ground Floor & First floor on it in the year 1969-70 taking loan from my Employer, The Karnataka Electricity Board, where I was working as my self acquired property.
My personal family consists of my wife, Smt. Sharadama, aged about 63 years, my eldest son, Shri. S. P. VI JAYAKUMAR, now aged 45 years, my second son, Shri. S. P. ANANDAKUMAR, now aged 43 years, and my only daughter named S.P. SUBHASHINI, now aged 36 years. My two sons are married and among them S.P. VIJAYAKUMAR is living separately with his family, my second son S. P. ANANDA KUMAR is living with me. Both my sons are well placed in their employment. My daughter S.P. SUBHASHINI is given in marriage to one Shri S. SATHISH NAIDU Bombay who has an independent small scale unit at Saidarshini/Industrial Town, Basaveshwarnagar, Bangalore and is financially well off.
My daughter is not now living with her husband due to some domestic problem which I will later state in this WILL. My first son, S.P. VIJAYAKUMAR was brought up by my foster mother Smt. H. THIMMAKKA, who is a retired School Teacher, since his childhood and he is living with her and he got the immovable house property bearing No:9 (Old U/11), Pipeline, Seshadripuram, Bangalore 560 020, under the WILL dated: 27.6.1986 executed by the said Smt. H. THIMMAKKA in favour of his minor son, Shri. VINOD KUMAR and is well off without expecting any help from me.
NOW WHEREAS, I have become old and age decided to make a WILL in respect of the scheduled property to avoid any dispute between my heirs after my death in respect of the scheduled property and accordingly, I have decided out of my own FREE WILL and volition, desire being in good state of mind to make WILL and to bequeath the entire schedule property jointly in favour of my second son, Shri. S. P. ANAN DAKUMAR and his son, Shri. A. GURU PRASAD, now aged 18 years (my grandson) now studying in II P.U.C. This is to be my last WILL and shall come into force after my death. I am revoking the earlier WILL as stated in the beginning. It is my wish and desire which shall be carried out as mentioned in this WILL, under these of circumstances.
I am now residing with my second son Shri. S.P. ANANDAKUMAR and his family consisting of wife and my grandson, Shri. A. GURUPRASAD. They are very
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kind to me and to my health. I am perenially ill suffering from Blood Pressure, Hyper Tension and early stages of Cancer is detected in me. I am a pensioner getting a meager pension of Rs. 2,300/- from my erstwhile Employer, K.E.B. The pension amount is not sufficient for my medical bills as they are exorbitantly high. In this hardship and in my old age, my second son and his family are like oasis in the desert. They attend to my needs to take care of my health, medicine and attend to such other things which I am incapable of doing due to my ill-health. I am moved by the devotion towards me and seeings, I wish to bequeath the scheduled property to my son, Sri. S. P. ANANDAKUMAR and my grandson, Shri. A. GURUPRASAD.
I Should state about my wife, who have been living with me for the past 46 years. Unfortunately off late I see some sort change towards me. she has become more harsh and rough and does not respect me and my feelings. She has also does not want to attend to my health which is deteriorating day-by-day. My daughter S.P.SUBHASHINI married to Shri. SATISH NAIDU for the past 13 years and now has thought of breaking her own marital life.
I am a person, who gives utmost respect and preference to a good family and marital life, I cannot see my daughter's marital life to be broken. My son-in- law is very good in heat and kind in nature, I have had several talks with my daughter and son-in-law separately as well as jointly. But all my efforts have failed. My son-in-law has no complaints against my daughter and is always willing and is ready to live with her. I find the fault in my daughter. Very distressing point is that she is supported by her own mother, my wife, Smt. SHARADAMMA. This has given my daughter more audacity to threaten all conciliatory moves. My wife and daughter have broken my mind, both of them have joined hands and are causing mental agonies to me. Both do not listen to my advise and have become haughty. Therefore my daughter and wife's action has created lot of mental agony in me at this old ripe age. I should have been expecting my death peacefully but I doubt such thing to happen.
Hence, I have decided without being influenced or coerced and in my strong senses that my wife and daughter will not get anything from my property. Let them suffer for their misdeeds. But this does not mean that they should not live in harmony or peace with my second son, Shri. S.P. ANANDAKUMAR and my grandson to whom I am bequeathing the schedule property.
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Threfore under these circumstances reiterate that it is my wish and desire to bequeath schedule property to my second son and his son Shri. A. GURUPRASAD jointly. They shall remain as co-owners until further time as they mutually agree to be. They shall share the rents, taxes, impositions or any such other assessments from the schedule property. I accordingly declare my second son Shri. S. P. ANANDAKUMAR and my grandson, Shri. A. GURU PRASAL respectively as the beneficiaries of my WILL universal legatees of the schedule property as mentioned in this last WILL of mine. No others shall have any claim what-so-ever on the schedule property other than the universal legatees as stated in this WILL.
SCHEDULE HOUSE PROPERTY measuring East to West 40 (forty) feet and North to South 30 (thirty) feet consisting of ground floor and first floor building bearing Municipal No: 1730, situated at 2nd Stage, 'E' Main Road, Rajajinagar, Bangalore 560 010, bounded on the East by :: Road West by :: Private property North by :: Private property South by :: Private Property"
(b) Aforesaid Will has been attested by two witnesses namely, Sri.Bairappa and Sri.R.Srinivas. The same is drafted by one Sri.A Venkateswamy, Advocate. The thumb impression of the testator has been identified by Lakshmi, who is stated to be the wife of defendant No.1. Lakshmi has not been examined.
Defendant No.1 who is the beneficiary of the Will has examined himself as DW1.
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20.2 That from the averments made in the plaint and evidence led in by the parties, following suspicious circumstances emanate in the second Will;
(a) In Will dated 01.12.1986 registered on 11.05.1989 at Ex.P4 also marked as Ex.D11, Sri. S. G. Pranesha Murthy had provided life interest in favor of plaintiff No.1 in respect of the suit schedule property and after the death of plaintiff No.1 the ground floor will to go to the defendant No.1 and the first floor to the plaintiff No.2;
(b) In the Will dated 17.05.1997 at Ex.P12 and at Ex.D12, plaintiffs have been completely disinherited from the suit schedule property;
(c) Address of Sri S. G. Pranesha Murthy as shown in the subsequent Will is admittedly that of the defendant No.1;
(d) Wife of defendant No.1 Lakshmi has admittedly affixed her signature to the Will identifying the signature of executor of the Will;
(e) Defendant No.1 claims that he learnt about the Will dated 17.05.1997 only after the death of Sri S. G. Pranesha Murthy;
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(f) Defendant No.1 has admitted that after he having gone out in the year 1978 he returned only after the demise of Sri. S. G. Pranesha Murthy. Nothing is placed by defendants as how and when Sri. S. G. Pranesha Murthy resided with them;
(g) In the said Will late Sri. S. G. Pranesha Murthy has indicated that he is in the early stage of the cancer whereas admittedly Sri. S. G. Pranesha Murthy, diagnosed of cancer in the year 1995. By 1997, health of Sri. S. G. Pranesha Murthy according to the plaintiffs had deteriorated as he was in advanced stage of cancer coupled with heart problem and was under chemotherapy treatment;
(h) In the subsequent Will, the late Sri. S. G. Pranesha Murthy appears to have blamed the plaintiff No.2 for her marital problems, while according to plaintiffs Sri. S. G. Pranesha Murthy was very supportive and since 1995 was worried about the future of plaintiff No.2 as her husband had deserted her.
20.3 EVIDENCE DW1:
(a) The said DW.1 in his affidavit filed in lieu of his chief-
examination at paragraph 13 has stated as under;
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"I submit that my father was keeping in good health and he used to visit temples in South India and Will was executed on his own desire and attesting witnesses are close friends of my father. I was not aware of the execution of the Will till his death and I came to know on such Will after his death. "
(b) He has reiterated his stand even in the cross-examination wherein in the deposition recorded on 06.04.2004 he has deposed as under;
"It is true that after I left my house in the year 1978, I came back to house permanently in 1998. It is false to suggest that I left the house in the year 1978. I do not know anything about the affairs of the family. It is false to suggest that I do not know the amount of loan taken by my father and repayments between 1978 and 1998......... It is true that a Will was executed on 01.12.1986 and was registered on 11.05.1989. It is true that in the said Will my father had stated that he was living along with my mother. It is false to suggest that I was not providing food for my father after 1986 as he was with my mother............. I came to know about the Will dated 17.05.1997 after the death of my father. It is true that earlier my wife's name was Zubeda and later it was changed to Lakshmi. It is true that Will dated 17.05.1997 was registered on 11.08.1997. I do not know whether my wife Lakshmi has attested the said Will. It is not correct to say that I was knowing about the Will earlier to the death of my father as my wife has signed it. It is false to suggest that subsequent to 1995 till my father's death his ailment of cancer was in advanced stage. It is false to suggest that he was not in sound mind subsequent to 1997. ...........Even my wife do not know about Will executed by my father in the year 1997. It is true that my wife has identified the signature of my father in the Will at Ex.D12. It is true that first attesting witness to Ex.D12 is a co-employee of my wife at Beskom. The second attesting witness to Ex.D12 is a friend through my father. Second attesting witness to Ex.D12, Srinivas is of my age. The said Srinivas is residing at Industrial Town Rajanagar. Till filing of the suit, I have not seen Ex.D12. It is false to suggest that the contents of Ex.D12 are far from truth. It is false to suggest that during his lifetime father was cordial with my sister."
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(c) The aforesaid deposition of DW1 who has propounded the Will pleading his ignorance about the existence of the Will till his father's demise creates a serious doubt as rightly pointed out by the Senior Counsel for the plaintiffs, when admittedly his wife has identified the signature.
(d) The further deposition recorded on 19.03.2005 of DW.1 reads as under;
"My wife is not the witness to Ex.D12 Will. It is true that witnesses to Ex.D12 are younger to my father. I do not know whether witnesses to Ex.D12 were working at KEB when my father retired from service. Bairappa is working at KEB. First witness Bairappa is not known to me. Witness Srinivas became close to me after death of my father. Again I say that I used to say only hello to said Srinivas. It is false to suggest that during 1987 my father was suffering from advanced stage of cancer and at that time myself and my wife have forced my father and took signature in Ex.D12. I had given application to corporation for transfer of khata. Witness is confronted with the copy of endorsement given by the corporation authorities."
20.4 EVIDENCE OF ATTESTING WITNESS DW.4 AND SCRIBE -DW.5:
"DW4- R.Srinivas attesting witness in his affidavit filed in lieu of his examination-in-chief has stated that he signed the Will on 17.05.1997 as a witness to the document.
In the cross-examination he has deposed that I came in contact with S.G.Pranesha Murthy directly. I was knowing S.G. Pranesha Murthy since 1991. It is true that there was age difference of 30 to 40 years between me and S.G.Pranesha Murthy. It is true that there was nothing common between myself and Pranesh Murthy. Pranesh Murthy is not related to me and he is not from my community. It is true that Pranesh Murthy had his own relations and friends with lot of acquaintances of his age.
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It is true that myself and S/o Pranesh Murthy are friends. It is true that Sri. Anand Kumar S/o Pranesh Murthy was working at KEB, Basaveshwaranagar. It is true that I am close to Anand Kumar, his wife and his other family members. Pranesh Murthy had telephoned me on 17.05.1997 stating that he had some work with me. Prior to 17.05.1997 Pranesh Murthy did not talk anything with me about the Will. On 17.05.1997 Pranesh Murthy called me to his house i.e., 1st Block, Rajajinagar. I went to Pranesh Murthy's residence at about 9.30 in the morning. When I went there the Will was already prepared. Pranesh Murthy signed the Will in my presence. Pranesh Murthy had told me briefly about the contents of the Will. Myself, Pranesh Murthy, Byrappa and w/o Anand Kumar were present at that time. Pranesh Murthy's wife and daughter were not present at that time. It is true that in the year 1997 Pranesh Murthy was not in good health. I do not know whether Anand Kumar was instructing Pranesh Murthy in all his works. I did not go to the Sub-Registrar's Office for registration of the Will."
(a) Aforesaid version of DW4 indicate that S.G.Pranesha Murthy had purportedly called him to the house at 1st block of Rajajinagar which appears to be the house where defendant No.1 and his family were residing. The address given in Ex.D12 is Door No. 1902 K-15, 12th Main Road, 1st block, Rajajinagar, Bangalore-560 010. Whereas the suit schedule property is No. 1730, 'E' Main Road, 2nd Stage, Rajajinagar, Bangalore-560010. Clearly the Will appears to have been prepared at the residence where the defendants were residing.
(b) The deposition of DW4 runs contrary to the very case of the defendants. As already noted, defendant No.1 in his pleading as well as in his evidence has pleaded complete ignorance about he being aware of existence of the said Will until demise of S.G.
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Pranesha Murthy. It is his specific case that he learnt about the Will only after his demise. There is no pleading or whisper as to the source of he learning about the said Will. He has also admitted to the fact that his wife Lakshmi who was earlier known as Zubeda has affixed her signature to said Will identifying the signature of S.G. Pranesha Murthy.
(c) From the deposition of DW.4 it is clear that he is the friend of defendant No.1 and that Will was prepared and signed at the residence of defendant No.1 in the presence of wife of defendant No.1. It is beyond one's comprehension that when all the four persons namely, S. G. Pranesha Murthy, two witnesses and, Smt.Lakhsmi, wife of defendant No.1 had met at the preparation and execution of the Will at the residence of the defendant No.1 and the same was allegedly registered in the office of the Sub-Registrar, defendant No.1 not being told about these events and was kept in dark by his own wife and close friend until demise of S. G. Pranesha Murthy. So much for defendant No.1 to say that he learnt about the Will only on the demise of his father.
20.5 EVIDENCE OF SCRIBE DW.5:
(a) A.Venkataswamy, who is the scribe of the Will, an Advocate by profession, has been examined as DW5. In his
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affidavit filed in lieu of examination-in-chief the said witness has deposed that in the month of May 1997 one S. G. Pranesha Murthy, son of Venkataramanappa had approached him expressing his desire and intention to make a Will to bequeath his property in favour of his second son S.P.Anand Kumar and grandson A. Guruprasad. As such, he agreed to draft and prepare the Will and collected necessary information and documents pertaining to the property from the said S. G. Pranesha Murthy. Thereafter, as per the instructions given by the said S.G.Pranesha Murthy, he prepared the Will dated 17.05.1997 incorporating all his wishes and desires. He has also spoken about S.G.Pranesha Murthy revoking the earlier Will dated 01.12.1986 registered on 11.05.1989 in terms of which he had bequeath his property in favour of his wife granting her life interest and bequeath ground floor and first floor in favour of his son S. P. Anand Kumar and S.P. Subashini respectively. He has further deposed that said S.G.Pranesha Murthy was a literate person and he had personally gone through the contents of the Will and the said Will was read over to him.
(b) In the cross-examination, DW.5 has deposed as under;
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"I was not Knowing S.G.Pranesh Murthy prior to 1997. It is true that if somebody had impersonated S.G.Pranesh Murthy, I would have not known as the said person had come to me for the first time. I have not kept the minutes of instructions in preparing Ex.D12. I did not ask S.G.Pranesh Murthy as to why he is changing the Will. It may be true that the person who met me in execution of Ex.D12 was old, weak and sick."
(c) Ex.D12 runs into 6 pages with all details and reasons for disinheriting plaintiffs. It would be preposterous for a scribe that too an advocate to draft such a detailed document, without knowing or asking anything from his client in the very first meeting itself.
(d) Deposition of this witness is not safe to rely upon. 20.6 EVIDENCE OF DR. P RAJANNA/ DW3:
(a) DW3/Dr. P. Rajanna, who is the brother of plaintiff No.1 in his affidavit filed in lieu of examination-in-chief at para 2 has stated that the plaintiff No.1 is his elder sister and that there was no cordial relationship between his sister and deceased S.G.Pranesha Murthy, his brother-in-law. The said witness has at para 3 deposed that deceased was not suffering from any ailment except bone cancer at vertebral column and hip joints.
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(b) In the cross-examination the said witness has admitted that he was requested by defendant No.1 to depose in the case and his affidavit was prepared by the defendant No.1. He has further admitted that his relationship with plaintiff No.1/Sharadamma is not good. He has further admitted that there were minor misunderstanding between Sharadamma and her husband S.G. Pranesha Murthy and there were no major dispute. That he did not try to mediate between Sharadamma and her husband. He has also admitted that Sharadamma and her husband lived together till S.G.Pranesha Murthy died. And he used to go to Shardamma's place to give insulin to S.G.Pranesha Murthy. He has also admitted that apart from diabetes, S.G.Pranesha Murthy was having other ailments like cancer of prostate with secondaries in the bone. He has also admitted that 5 to 6 years prior to his death, S.G.Pranesha Murthy was undergoing chemotherapy and he was under
sedation due to medication. He has also admitted that any person who is afflicted with cancer will sedate mental turmoil.
He has further deposed that he has treated S.G.Pranesh Murthy himself. Prior to his death, the S.G.Pranesh Murthy had undergone operation due to prostate cancer in the year 1995.
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Evidence of this witness supports the case of the plaintiffs than that of the defendants.
20.7 REASONS FOR DISINHERITING PLAINTIFFS:
(a) The tenor and the expression of language contained as above in the Will itself gives rise to serious doubt. Firstly; the testator himself has admitted his wife has been residing with him for 46 years and according to him she had changed her attitude towards him. This under any circumstances cannot be the ground to disinherit her completely without any alternate.
Appropriate also to note at this juncture that the plaintiff No.1 wife of the testator was working as a government teacher while the husband was working in the KEB. Admittedly, both were earning almost equally and both have contributed for the family. The deposition of DW.1 becomes important at this juncture. In his cross-examination the said witness has admitted to the following;
" I was about 14 years in the year 1968 and at that time I was studying at SSLC. I got married in the year 1978. I was also present when my father borrowed a sum of ₹ 2,000 from one Nagraj on 15.05.1968. The said amount was received by my father at KEB Office. The said Nagraj had taken a document at the time of giving the said amount. I have produced document to Court. My father repaid the amount to Nagraj on 14.08.1968. My father was getting a monthly salary of ₹ 400 during 1968. My grandmother was running a school and my father used to work in the school also. Ground floor of the scheduled property was constructed in the year 1968. My father has
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spent about ₹3,000 for the construction of the ground floor and I have got documents to show the said expenses. I have produced it before the Court. Witness again say except sanction letter, I have not produced any documents to show the expenses incurred for the construction of the ground floor. It is false to suggest that an amount of ₹30,000 is spent for the construction of ground floor. It is false to suggest that my father has spent about ₹12,000 by obtaining loan and another ₹15,000 by selling the jewels of my mother and savings of my mother for the construction of the ground floor. It is false to suggest that my mother used to give tuition to the students in the house. The first floor in the scheduled property was constructed in the year 1975. An amount of ₹27,000 was spent for the construction of the first floor. My father had obtained a loan of ₹20,000 for construction of first floor. It is false to suggest that my mother had contributed ₹5,000 from her savings for the construction of the first floor house........... On the basis of document, I have said that the plaintiff No.1 was getting salary of ₹ 60 during 1968. Witness is confronted with a service book of Sharadamma. Witness identifies Ex.P20 is the service book of Sharadamma. It is true that as per said exhibit at page number 14 of Ex.P20, it discloses that the basic pay of Sharadamma is ₹ 114 per month as on 27.11.1968. Ex. P21 is the service book of my father and it shows that the basic pay of my father is ₹ 122 as on 1968. Witness volunteers that Exhibit do not contain all the pages. It is true that as per my document Ex.D7 the basic pay of my father during the year 1968 is shown as ₹ 122 per month. It is true that my mother Sharadamma had nominated my father for the family benefits as per the service register. Relevant portion is marked as in P20A. It is true that there was a difference of only ₹ 8 in the basic salary of my mother and father during 1968. It is not correct to say that my statement Sharadamma was getting ₹ 60 per month and my father was getting ₹400 per month during 1968 is false. It is true that my father has not worked any time in his service as Assistant Cashier, Office of the Accounts Officer, Revenue, Bangalore Circle, Bangalore -1 as mentioned in Ex.D2.....
(b) Thus, the aforesaid evidence indicate that Sharadamma/ plaintiff No.1 was drawing salary almost equal to that of her husband S.G.Pranesha Murthy. Even the trial Court has taken note of the fact that Sharadamma must have contributed for
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the maintenance of family though she has not produced the documents. When Shardamma the plaintiff No.1 even according to defendant No.1 was earning equal to the amount being earned by her husband S.G.Pranesha Murthy, it becomes difficult to accept the contention and that she having lived for 40 years supported him financially, emotionally that she would be completely disinherited from the property without any alternative, more particularly, when in the earlier Will dated 01.12.1986 registered on 11.05.1989 S.G.Pranesha Murthy had given her life interest with respect to the entire suit schedule property and restricted the first floor and the ground floor to belong to plaintiff No.2 and defendant No.1 after the lifetime of Sharadamma.
(c) The intention of the S. G. Pranesha Murthy found in Will dated 01.12.1986 registered on 11.05.1989 appears to be genuine and latter appears to be the one which has come up under suspicious circumstances. When such detailed reasons have been incorporated in the Will at Ex.D12, the evidence of DW.5 to say that he had not enquired with the testator the reason for his change of intention becomes doubtful. Further DW.5 himself has said that he could not make out if the testator had been impersonated.
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(d) Thus, the evidence of DW4 and DW5 lack cogency and hence unreliable.
(e) Nothing prevented defendants from examining Smt. Lakshmi, the wife of defendant No.1 who is admittedly the one who identified the signature of the testator. These are serious suspicious circumstances which have not been cleared by the defendant No.1.
20.8 MEDICAL RECORDS:
(a) Ex.P5 and Ex.P6 are dated 24.07.1991 which are primary health evaluation of S.G.Pranesha Murthy. Ex.P7 is discharge record issued by Bangalore Hospital, which indicate S.G.Pranesha Murthy having been admitted to the said hospital on 04.09.1995 and discharged on 15.09.1995 for prostrate treatment. Ex.P8 is discharge summary issued by Kidwai Memorial Institute of oncology dated 17.01.1996. Ex.P9 is discharge summary issued by Kidwai Memorial Institute of oncology dated 24.02.1998. Ex.P10 is discharge summary issued by Kidwai Memorial Institute of oncology indicating date of admission as 02.07.1998 and discharged on 09.07.1998.
Ex.P22 is the medical certificate issued by the Bangalore Hospital certifying S.G.Pranesha Murthy having been admitted
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on 04.09.1995 with the complaints of backache of three months and left hemifacial pain of one and half months and undergoing a treatment of bilateral orchidectomy on 06.09.1995 and discharged on 15.09.1995. Ex.P23 is the outpatient record issued by National Institute of Mental Health and Neuro Science, Bengaluru which is dated 17.08.1995.
(b) Interestingly, the aforesaid medical records in originals have come from the possession of the plaintiffs. Though defendants in the written statement have contended, the plaintiffs had not taken care of S G Pranesha Murthy and that it was defendant No.1 who had taken care expending a sum of Rs.2,50,000/ not even a single piece of documentary evidence is produced by the defendants justifying their claim of taking care of S G Pranesha Murthy.
(c) On the other hand Ex.D1 is the original sale deed dated 28.06.1984; Ex.D2 is a demand promissory note dated 15.05.1968; Ex.D3 and Ex.D4 are the revenue records, Khatha certificate; Ex.D5 appears to be the calculation of the amount spent on construction work; Ex.D6 is the sanction plan; Ex.D7 is the document evidencing electricity connection; Ex.D8 is a document evidencing loan availed by S G Pranesha Murthy; Ex.D9 is sanction plan; Ex.D11 is the original Will dated
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01.12.1986; Ex.D12 is the original Will date at 17.05.1997; Ex.D13 and Ex.D14 are the purported complaints given by S.G. Pranesha Murthy against the plaintiffs; Ex.D15 is the encumbrance certificate. Except these documents which are kept safely by laminating, defendants have produced no other documents. In the normal circumstances, if the defendants had, as claimed, taken care of S.G. Pranesha Murthy, it was expected of them to have produced some documents in that regard. This, in the peculiar fact situation the matter indicate S G Pranesha Murthy was being taken care only by the plaintiffs from the year 1991 till the year 1998, as such all these medical records have been kept and preserved by the plaintiffs which probabilizes their case of they taking care of S.G. Pranesha Murthy and not the defendants.
(d) As regard police complaints at Ex.D13 and Ex.D14, allegedly given by the S.G. Pranesha Murthy, necessary to note that, there is no whisper about documents Ex.D13 and Ex.D14 in the written statement. In the cross-examination defendant No.1 has deposed as under ;
"I came to the first floor of the schedule premises after 1998. Between 1995 and 1998 I was residing in a rented premises at Rajaji Nagar, Bengaluru. During the said period I was not visiting my parents. Ex.D13 and Ex.D14 were given to me by my father two days prior to his death. I was knowing about Ex.D13 and Ex.D14 when the complaint was lodged by my
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father. My father did not discuss with me before giving complaint to the police. It is false to suggest the Ex.D13 and Ex.D14 were given at my instance. I do not know what action the police have taken on Ex.D13 and Ex.D14. It is false to suggest that my father did not give any police complaint as per Ex.D13 and Ex.D14 and I have concocted the documents. Address of my father shown in Ex.D13 and Ex.D14 are correct. My father was residing in the address mentioned in Ex.D13 at that time. I do not know the education qualification of my father. I came to know about Ex.D12 subsequent to death of my father. At the time of his death I was not knowing anything about Ex.D12. My wife and myself are cordial. During 1997 myself and my wife were residing together............ Even my wife do not know about Will executed by my father in the year 1997. It is true that my wife has identified the signature of my father in the Will Ex.D12. It is true first attesting witness to Ex.D12 is the co-employee of my wife at BESCOM."
(e) It is not safe to rely upon contention of defendants regarding deceased having lodged the complaints against plaintiffs as per Ex.D13 and Ex.D14, firstly, because though the defendant No.1 in his cross-examination, as seen above, has stated that his father gave him Ex.D13 and Ex.D14 two days prior to the date of his death, he has not whispered anything about the same in the written statement. Settled principles of law being that no amount of evidence is acceptable in the absence of pleading to that effect. Secondly, alleged handing over of Ex.D13 and Ex.D14 by the S.G. Pranesha Murthy two days prior to his death becomes doubtful, when the defendant has repeatedly asserted that he learnt about Will at Ex.D12, only after death of his father and that neither himself nor his wife were aware of execution of Will at Ex.D12, albeit, wife of
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defendant No.1 admittedly was the signatory to the said Will as purportedly having identified the signature of the testator too.
(f) Apex Court in the case of JASWANT KAUR V. AMRIT KAUR (supra) at paragraph 9 has held as under;
"9. In case where execution of a Will is shrouded in suspicion, it's proof ceases to be a simple lis between the plaintiff and defendant. What, generally, is an adversary proceeding becomes in such cases and matter of court's conscience and when the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless party which sets up the Will offer a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will."
21. From the aforesaid discussion and analysis it becomes clear that defendant No.1 had left the house of plaintiffs in the year 1978 and had not returned until after demise of S. G. Pranesha Murthy. He has admitted that he was not visiting them during the said period, meaning thereby that he was not aware as to what transpired in the life of S. G. Pranesha Murthy during his absence. He has admitted to the fact of plaintiff No.1, his mother being a teacher having had the income equal to that of S. G. Pranesha Murthy. Evidence on record, indicate that she had indeed contributed substantially for the family. Records also reveal that it is plaintiffs who have taken care of S. G.
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Pranesha Murthy during his illness who was admittedly suffering from initially prostate cancer latter bone cancer, that is from the year 1995 till his demise. He was also under chemotherapy treatment. Documents also indicate that plaintiff No.2 has undergone divorce proceedings with her husband. Will dated 01.12.1986, as already noted, intended to create life interest in favor of the plaintiff No.1 and after her demise, the suit schedule property was to be shared equally between plaintiff No.2 and defendant No.1. That Will dated 17.05.1997 has come to existence after the demise of S. G. Pranesha Murthy. Defendant No.1 who is the propounder of the said Will has pleaded ignorance about its existence until demise of S.G. Pranesha Murthy. This stand of defendant No.1 is unacceptable as admittedly his wife is the signatory. Attesting witness No.1 is the co-employee of his wife. Attesting witness No.2 is his friend. Will was executed at his house when his father was allegedly residing with him.
22. Case of the defendants that S.G. Pranesha Murthy disinheriting plaintiffs from the suit schedule property, under the fact and circumstances of the case do not evince credibility. Defendants have failed to dispel suspicious circumstances surrounding execution of Will at Ex.D12, as such this Court has
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no hesitation to hold that Will dated 17.05.1997 at Ex.D12 is invalid and unenforceable. Consequently, the Will dated 01.12.1986 registered on 11.05.1989 has to be held to be valid and enforceable.
23. Since the plaintiff No.1 is no more, plaintiff No.2 and defendant No.1 are held equally entitled to suit schedule property in terms of the Will dated 01.12.1986.
24. With the aforesaid observation, following;
ORDER
1. Appeal is allowed.
2. Suit of the plaintiffs in O.S.No.15210/1999 dated 27.09.2006 passed on the file of XXVIII Additional City Civil Judge, Mayo Hall Unit, Bengaluru is decreed in part.
3. Will dated 01.12.1986 registered on 11.05.1989 as document No.41/1989-90 at Rajajinagar Sub-Registrar's Office in page No.245-248 of Volume 36 of Book III is hereby held to be valid and enforceable.
4. Will dated 17.05.1997 executed by Late S.G.Pranesha Murthy registered as document No.68/1997-98 is hereby held to be invalid and unenforceable.
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5. Plaintiff No.2 and defendant No.1 are held entitled for equal share in the suit schedule property in terms of Will dated 01.12.1986 registered on 11.05.1989.
6. No order as to costs.
Sd/-
(M.G.S. KAMAL) JUDGE RL/RU