Bangalore District Court
Sudha S vs Jayalakshmi A on 31 August, 2024
KABC010022772019
IN THE COURT OF THE XLI ADDL.CITY CIVIL AND
SESSIONS JUDGE : AT BANGALORE [CCH-42]
:PRESENT:
SMT. SUMANGALA CHAKALABBI, B.A. LL.B. (Hons.), LL.M.
XLI Addl. City Civil and Sessions Judge,
Bengaluru
Dated this the 31th day of August 2024
O.S.No.594/2019
PLAINTIFF : Smt. Sudha S.
Aged 55 years
W/o Sudharshan H.C.
D/o late B.C. Anantharamaiah
No.37, 1st Floor,
19th Main road,
Padmanabhanagar,
Bengaluru - 560 078.
(By Sri M.L. Srimathi, Advocate)
V/s.
DEFENDANTS : 1. Smt. Jayalakshmi A.,
Aged 79 years
W/o late B.C. Anantharamaiah
2. Sri B.A. Mohan,
Aged about 58 years
S/o late B.C. Anantharamaiah
3. Smt. Radha Kumar Swamy,
O.S. No.594/2019
2
Aged about 60 eyars
W/o Kumaraswamy,
D/o late B.C. Anantharamaiah,
R/at No.55, 3rd Main road,
Shakambarinagar,
Bengaluru - 560 078.
4. Smt. Pushpalatha A.
Aged about 54 years
W/o Raja Venaktesh
D/o late B.C. Anantharamaiah
No.675, 12th Cross, M.C. Layout,
Vijayanagar,
Bengaluru - 560 040.
5. Smt. Asha Mohan,
W/o B.A. Mohan,
Aged about 57 years
R/at No.566,
N. Central Avenue Ramswy
New Jersey - 07446.
(D1, 2, 4 & 5 - By Sri C.N.S., Advocate
D3 - by Sri M.N., Advocate)
Date of Institution of the Suit: 23.01.2019
Nature of the suit
(Suit on Pronote, suit for Suit for partition
declaration & possession, suit
for injunction)
Date of commencement of 02.11.2023
recording of evidence:
O.S. No.594/2019
3
Date on which the Judgment 31.08.2024
was pronounced:
Total Duration: Year/s Month/s Day/s
05 07 08
JUDGMENT
The plaintiff has filed this suit against the defendants for the relief of partition and separate possession for declaring that the plaintiff is entitled for 1/5th share in the suit schedule properties and for the decree of mesne profits.
2. The case of the plaintiff in brief is that, her father B.C. Anantharamaiah was married to defendant No.1 and within their wedlock the plaintiff, defendants No.2 to 4 were born. The defendant No.5 was subsequently impleaded in the suit and she is the wife of defendant No.2.
2.1 It is contended that during the lifetime of B.C. Anantharamaiah, he had performed marriage of his 1st daughter namely Radha Kumar Swamy in the year 1982, plaintiff's marriage was performed in the year 1987 and 4 th O.S. No.594/2019 4 defendant's marriage was performed in the year 1988 and the sons' marriage(the defendant no.2) was performed in the year 1989.
2.2 That B.C. Anantharamaiah died intestate on 04.05.2012 leaving behind the plaintiff and defendants No.1 to 4 to succeed to his estate.
2.3 That B.C. Anantharamaiah had purchased two properties in Bengaluru namely - A and B schedule properties.
2.4 On the death of B.C. Anantharamaiah, the plaintiff and defendants No.1 to 4 have succeeded to his estate and thus, they are entitled for their respective shares.
2.5 The 2nd defendant being the only son and after his marriage, he had left India along with his family and had settled at New Jersey, U.S.A. During the lifetime and at the time of death of B.C. Anantharamaiah, plaintiff and her husband Srudharshan has taken care of him and defendant No.2 though being the only son has failed to take O.S. No.594/2019 5 responsibility of his father and did not even attend the funeral of his father. In fact, all the rituals and death ceremony was performed by his son-in-law at Hindu Dharmika Trust, Bengaluru.
2.6 On the death of her father, the plaintiff requested the defendant to effect partition, but the same was postponed one one or the other pretext by the defendants No.1 to 4 with malafide intention of depriving her legitimate share and without her knowledge defendant No.2 got transferred the katha of B - schedule property and he has rented out the B - schedule property to one Manoj Jain and collecting the monthly rents from the said tenant. The 1 st floor of the out house of A - schedule property is rented out to one Rajashekar and defendant No.1 is collecting the rent from him. The defendant No.3 has let out the ground floor of the out house in A - schedule property and collecting the rents from him.
O.S. No.594/2019 6 2.7 Apart from this, the defendant No.3 is enjoying the ground and first floor of the main house.
2.8 On 20.08.2017 the plaintiff has demanded her share in the suit schedule property, but the same was flatly refused.
2.9 During the pendency of the suit, the plaintiff has inserted an additional schedule as schedule - C property and has made additional averments with respect to the same by contending that the said property was acquired with the funds of B.C.Anantramaiah.
2.10 It is further contended that prior to filing of the above suit, the plaintiff had approached the defendants No.1 and 2 demanding her share in the schedule properties, but the defendant No.2 in order to deprive the plaintiff of her legitimate right over B schedule property had executed gift deed dated 18.-08.2017 in favour of his wife Asha Mohan, who is arrayed as defendant No.5. The 2 nd defendant or his wife do not have any right with respect to the said property O.S. No.594/2019 7 and the said gift deed is not binding on the share of the plaintiff.
3. In pursuance of summons, the defendants No.1, 2 and 3 appeared through counsel. The defendant no.1 and 2 have filed their written statement. The third defendant has not filed written statement. The defendant No.4 who was initially placed ex-parte has subsequently appeared before this court on 19.01.2024 and has filed her written-statement subsequently.
3.1 The defendant No.5, who was subsequently impleaded has adopted the written-statement of defendants No.1 and 2 and called upon the plaintiff to prove the averments with respect to C - schedule property.
3.2 The written-statement of defendants No.1 and 2 is filed by their P.A. Holder namely, Anil Pandu.
3.3 The defendants No.1 and 2 in the written- statement have contended that the averments of the plaint that B.C. Anantharamaiah died intestate is denied O.S. No.594/2019 8 specifically and it is contended that the suit schedule properties namely A and B schedule properties are the self- acquired properties of B.C. Anantharamaiah and when he was in disposing state of mind and without any fear, favour, coercion and undue influence he has bequeathed the A and B schedule properties under a Will dated 11.06.2010 out of his own will and duly notarized the same before P. Anuradha, Advocate and Notary bequeathing the B schedule property to defendant No.2, A - schedule property and ground floor of out house in A - schedule property to defendant No.3, first floor of the out house of the A - schedule property to defendant No.1. Further B.C. Anantharamaiah has provided monetary assistance to the plaintiff for putting up construction over the property at Padmanabhanagar and the plaintiff by suppressing all these material facts has filed the present suit to make unlawful gain.
3.4 It is further contended that the 2 nd defendant is the only son of B.C. Anantharamaiah and is suffering from O.S. No.594/2019 9 CNS Lymphoma. In the year 2006, he was in coma for five weeks. In view of high dosage of steroid medicine injected before diagnosis, his left arm is compromised and he has lost balance in his body and now he has become wheel-chair bound and in fact it is his wife - defendant No.5 who is taking care of his need and necessities. The defendant No.2 has lost his job due to his disability and on account of these events, he was prevented from performing the last rites of B.C. Anantharamaiah and therefore, the allegation that defendant No.2 failed to take responsibility of his aged parents and attend the funeral of his father is in-human and fanciful.
3.5 That the defendant No.1 is residing with defendant No.2 and 5 at New Jersey, U.S.A. It is further contended that B.C. Anantharamaiah had educated all his children and celebrated their marriages out of his own earnings and he had every right to dispose off the property as per his desire.
O.S. No.594/2019 10 3.6 It is further contended that the suit filed by the plaintiff is barred by limitation as it is filed after lapse of seven years after the death of B.C. Anantharamaiah.
3.7 It is specifically contended that the plaintiff is fully aware of the Will bequeathed by her father and now estopped from setting up any claim over the suit schedule properties. Therefore, the suit is hit by the principles of estoppel and acquiescence.
3.8 It is further contended that after the death of B.C. Anantharamaiah, the defendant No.1 informed the plaintiff and all her children about the Will bequeathed by B.C. Anantharamaiah and read out the contents of the Will and all of them accepted the desire of B.C. Anantharamaiah and enjoying the respective shares given to them under the Will by getting katha of the said properties. Neither the plaintiff nor any other person have disputed the Will bequeathed till date.
O.S. No.594/2019 11 3.9 It is further submitted that since the defendant No.2 was bequeathed with B - schedule property under the Will, he got the katha of B - schedule property transferred in his name and defendant No.3 is enjoying all the usufruct by collecting rents derived from the ground floor and first floor of the out house of the A - schedule property, though the defendant No.1 is entitled for all the rents from the first floor of the out house as per the Will. The defendants No.1 to 3 are in separate possession of the suit schedule properties. Hence, the parties have ceased to be the members of Hindu Undivided Family. Thus, pursuant to the Will dated 11.06.2010, the defendants No.1 to 3 have become the absolute owners of the property and are in possession of the suit schedule property.
3.10 Further, it is contended that the defendant No.2 is immobile due to his ill health and not in a position to look after and administer the B - schedule property and therefore O.S. No.594/2019 12 executed gift deed dated 18.08.2018 in favour of his wife Asha Mohan and sought to dismiss the suit.
3.11 Pursuant to the written-statement of the defendants No.1 and 2, the plaintiff has filed rejoinder denying the execution of the Will on 11.06.2010 and contended that the defendants No.1 to 3 have created afore- said document to defraud the plaintiff. The plaintiff's father was suffering from age-related ailments such as respiratory problem, prostrate gland operation and malfunctioning of the heart, low sugar and low B.P. and before his demise he was suffering from shrinkage of brain and thus, he was not in a position to execute any document. That plaintiff's father was hospitalized for several times for various medical emergencies and even the defendant No.1 is suffering from Alzamer disease and it was the plaintiff and her husband who have looked after him in the hospital and borne expenses on humanitarian grounds. All through his life the plaintiff's father was taken care by plaintiff and her husband from O.S. No.594/2019 13 1996 to 2010 as 2nd defendant was residing at U.S.A. and hence, the father of the plaintiff could not bequeath the properties only in favour of defendants No.1 to 3 leaving the plaintiff and defendant No.4. The plaintiff has denied regarding taking of any monetary assistance from her father and she has further contended that in fact her father has obtained loans of Rs.50,000/- and 80,000/- to repair the A - schedule property and the plaintiff's father had promised to return the loan and plaintiff's father had also requested to arrange ticket to USA in October 2007 and the plaintiff had arranged for the same by way of cheque by paying Rs.56,248/-. The plaintiff and her husband had sufficient funds to build the house at Padmanabhanagar without any monetary assistance from her father.
3.12 Further, the allegation that B.C. Anantharamaiah provided monetary assistance to the plaintiff by requesting his younger brother B.C. Krishnamurthy for a reasonable price is denied by the plaintiff.
O.S. No.594/2019 14 3.13 The plaintiff has further denied that she is aware of the execution of the Will by B.C. Anantharamaiah. It is denied that the defendant No.1 had informed the plaintiff and other children regarding the Will and that the mother of the plaintiff is not an educated person sought to decree the suit.
3.14 The defendants No.1 and 2 have filed additional written-statement pursuant to the rejoinder denying the claim of the plaintiff that B.C. Anantharamaiah had age- related issues and contending that he was in sound disposing state of mind to execute the Will dated 11.06.2010.
3.15 The defendants No.1 and 2 have further denied the financial assistance rendered by the plaintiff and her husband and further contended that the C - schedule property is the self-acquired property of defendant No.2 and his wife Asha Mohan which has been acquired from her savings at Mylasandra in the year 2005 as she has sold her O.S. No.594/2019 15 property to one Ramesh and purchased the C - schedule property out of the consideration received by selling the said property at Mylasandra. That B.C. Anantharamaiah had bequeathed all his properties on 11.06.2010 and being honest and sincere retired official he did not have any source of income apart from the rental income. Hence, the question of B.C. Anantharamaiah purchasing the C - schedule property does not arise at all and hence, sought to dismiss the suit.
3.16 The defendant No.4 on her appearance has filed the written-statement contending that her father B.C. Anantharamaiah has executed a Will on 11.06.2010 and delivered a copy of the said will to her, plaintiff and 3 rd defendant in the presence of 1st, 2nd and 5th defendants by explaining the contents of the Will to all his children along with the cover written in his own handwriting.
3.17 If is further contended that the father of the plaintiff and defendants No.2 to 4 was not employed after his O.S. No.594/2019 16 retirement in the year 1989 and he was eking out his livelihood out of the income derived by way of rents from the outhouse of A - schedule property , which was constructed out of his retirement benefits.
3.18 It is further contended that B.C. Anantharamaiah had not left with any savings after he got constructed the outhouse in the A - schedule property and therefore, he had no funds to buy any immovable property for consideration of Rs.95 Lakhs.
3.19 The C - schedule property is the self-acquired property of defendants No.2 and 5, which they have purchased by disposing off the sites purchased by them earlier.
3.20 It is further contended that the husband of the 3 rd defendant was not looking after or extending any financial assistance to 3rd defendant and it was B.C. Anantharamaiah, who was looking after her maintenance and educational expenses of the son of the 3rd defendant Rajasimha.
O.S. No.594/2019 17 3.21 It is the 2nd and 5th defendants who were extending financial assistance for the education of the son of 3rd defendant till he completed his graduation and secured a job and thus, requested the court to dismiss the suit.
4. Initially my predecessor-in-office had framed Issues on 29.06.2020, which runs as follows:
ISSUES
1. Whether the plaintiff proves that the suit schedule 'A & B' properties are the joint family properties of herself and the defendants?
2. Whether the defendants No.1 & 2 proves that their father - Sri.B.C.Anantharamaiah executed Will dated 11.06.2010 and bequeathed 'A' & 'B' schedule properties in their favour as pleaded in Para No.5 of the written statement?
3. Whether the defendants No. 1 & 2 proves that the suit is bad for non-joinder of necessary parties
4. Whether the plaintiff is entitled to the reliefs sought for?
5. What decree or order?
O.S. No.594/2019 18 Later on, issues No.1 has been recasted on 19.06.2024:
RECASTED ADDITIONAL ISSUE No.1:
Whether the plaintiff proves that her father B.C. Anantharamaiah died intestate on 04.05.2012 leaving behind the plaintiff and defendant Nos.1 to 4 as his legal heirs who are entitled to succeed to his estate i.e. suit schedule 'A, 'B' and 'C' properties?
ADDITIONAL ISSUES FRAMED ON 25.10.2023
1. Whether the plaintiff proves that schedule C property is the joint family property of herself and defendants.
ADDITIONAL ISSUES FRAMED ON 02.02.2024:
Whether the plaintiff proves that the gift deed dated 18.08.2017 executed by defendants No.2 in favour of defendant No.5 is not binding on the share of the plaintiff.
ADDITIONAL ISSUES FRAMED ON 19.06.2024:
1. Whether the plaintiff proves that, her father B.C. Anantharamaiah was suffering from age related illness and her O.S. No.594/2019 19 mother defendant No.1 is suffering from ALZMER and the plaintiff and her husband looked after them throughout their life as stated at Para 2 of her rejoinder dated 28.06.2019?
2. Whether the defendant No.1, 2 and 4 prove that, B.C. Anantharamaiah had provided monetary assistance to the plaintiff for putting up construction over the property at Padmanabhanagara as stated in Para NO.5 of the written-statement.
Additional issues framed on 01.07.2024 Whether the suit is barred by law of limitation.
5. In order to prove the case of the plaintiff, the plaintiff got herself examined as PW.1 and got marked documents at Ex.P.1 to Ex.P.25.
5.1 On behalf of defendants, to prove their defence the first defendant got examined herself as DW.1, defendant No.5 is examined as DW.2 and defendant No.4 is examined as DW.3 and got marked documents at Ex.D.1 to Ex.D.6 and closed the evidence of their side.
O.S. No.594/2019 20
6. Heard the arguments of both sides. Perused the records.
6.1 The learned counsel for the plaintiff has relied upon the following decisions:
(1) Civil Appeal Nos. 5798-5799 in the case of Bachhaj Nahar Vs. Milima Mandal and Another, wherein it has been observed that :
"No doubt, no issue was framed, and the one, which was framed, could have been more elaborate, but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a O.S. No.594/2019 21 remit, as the evidence which has been led in the case is sufficient to reach the right conclusion."
It is further observed that "it is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered."
(2) In the decision reported in AIR 2004 KAR 430 - Subbyyajoga Naik Vs. Narayanai and Others it has been held that -
Hindu Succession Act (30 of 1956) S.8 -
Married daughter - right to property of father - property was self-acquired property of father - father died intestate - daughter being class I heir is entitled for share in property - fact that she was married 20 eyars back - immaterial.
(3) In Crl. Petition No.6170/2013 - Smt. P. Anuradha Vs. State of Karnataka, it has been observed that -
O.S. No.594/2019
22
Quashing of proceedings based on the
available material would be wholly inappropriate. The petitioner has necessarily to face the trial. Hence, to not find any ground to quash the proceedings and rejected the petition. (4) In the decision reported in 2023 (1) Kar. L.R. 629 (SC) - Prasanta Kumar Sahoo and others Vs. Charulata Sahu and others - it is observed that:
"equal share given to the daughter of a coparcener governed by Hindu Mitakshara Law along with brothers isdevolution by way of a substantive right."
(5) In the decision reported in AIR 2003 SC 761 - Janki Narayan Bhoir Vs. Narayan Namdeo Kadam it has been observed that -
"Execution of will examined attesting witness not able to prove attestation of will by the other O.S. No.594/2019 23 attesting witness - other attesting witness though available not examined devolution - will is not proved as mandatory required under Section 68 - Evidence of other witness namely that of respondent who claims suit properties on the basis of will and that of scribe cannot be considered with aid of Section 71 which is permissive does not apply to such a situation.
(6) In the decision reported in AIR 1952 Nagpur 88 -
Ruprao Ranoji Vs. Ramrao Bhagwantrao. It has been observed that -
Where the thumb impressions of the identifying witnesses were taken on the document and the Sub-Registrar signed the document after these thumb impressions had been taken, the Sub- Registrar could be examined as an attesting witness provided it is proved that he signed the O.S. No.594/2019 24 document in the presence of executant of the will and the identifying witnesses.
6.2 The learned counsel for the defendants No.1, 2,4 and 5 have relied upon the following decisions:
2023 Livelaw (SC) 809 - Meena Pradhan and others Vs. Kamla Pradhan wherein it has been observed that -
A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator's property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been O.S. No.594/2019 25 statutorily enjoined to rule out the possibility of any manipulation.
It is further observed that, apart from statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances. In the decision reported in AIR 1994 KAR 20 - S.A. Quddus Vs. S. Veerappa and others, it has been observed that -
(B) Succession Act (39 of 1925) S.63 - Will -
Execution - proof - what is to be proved is that two witnesses have seen testator sign will and they signed in presence of testator and What all is required to be proved is whether two attesting O.S. No.594/2019 26 witnesses have seen the testator sign and they signed in presence of the testator.
In the decision reported in AIR 2015 BOMBAY 24 - Paresh Damodardas Mahant Vs. Arun Damodardas Mahant and Ors. Wherein it has been observed that -
Devolution of interest in coparcenary property
- plaintiff claiming as heir and legal representative of his deceased father - suit property would devolve under Section 6 by succession and not by survivorship - devolution would be complete on date of death of father - right to sue any of heirs and legal representatives of father would accrue on the date of death of father - suit for administration of estate of deceased has to be filed within three years from such date.
7. My findings to the above issues are as under:
O.S. No.594/2019 27 Issue No.1 -- Partly in the Affirmative Issue No.2 -- In the Negative Issue No.3 -- In the Negative Issue No.4 -- Partly in the Affirmative Addl. Issue framed on -- In the Negative 25.10.2023 Addl. Issue framed on -- In the Affirmative 02.02.2024 Addl. Issue Nos.1 -- Does not arise for consideration Addl. Issue 2 framed on 19.06.2024 In the Negative
-
Addl. Issue framed on -- In the Negative 01.07.2024 Issue No.5 -- As per the final order for the following:
REASONS
8. RECASTED ISSUE No.1, ISSUE No.2, ADDITIONAL ISSUE No.1 DATED 25.10.2023, ADDITIONAL ISSUE FRAMED O.S. No.594/2019 28 ON 02.02.2024, ADDITIONAL ISSUE Nos.1 AND 2 FRAMED ON 19.06.2024:-
It is the case of the plaintiff that the father of the plaintiff purchased the A - schedule property bearing No.60/1, situated at Sarakki Village, Shgakambari Nagar, 3 rd Main road, Uttarahalli Hobli, Bengaluru vide registered sale deed dated 26.09.1991 and later on the father of the plaintiff had purchased another property bearing No.24/1, 2nd Block, Jayanagar, Bengaluru under the registered sale deed dated 16.08.1996, which is described as B - schedule property and it is the further case of the plaintiff that during the lifetime of the father of the plaintiff the defendants No.2, 3 and husband of 1 st defendant had purchased vacant site bearing No.89, formed out of converted land bearing Sy.Nos.34/1, 39/1 and 40/1 situated at Kothanur Village, Uttarahalli Hobli, under registered sale deed dated 02.09.2011 in the name of defendant No.2 and his wife defendant No.5, which is described as C -
schedule property by representing himself as the GPA Holder of O.S. No.594/2019 29 defendants No.2 and 5 and in the said transaction, the entire amount was invested by B.C. Anantharamaiah. The defendants No.1, 2, 4 and 5 have specifically admitted regarding acquisition of A and B schedule properties by B.C. Anantharamaiah in their written-statement and as such there is no dispute with regard to A and B schedule properties being the self acquired properties of by B.C. Anantharamaiah. Therefore this court has to examine whether C schedule property was also the self acquired property of the father of the plaintiff.
9. CLAIM OVER C - SCHEDULE PROPERTY The defendant Nos.1 and 2 have contended that the C - schedule property is self-acquired property of defendant No.2 and his wife - Asha Mohan which was acquired by Asha Mohan out of her savings at Mysalandra in the year 2005. She had sold the said property at Mylasandra to one C.M. Ramesh on 25.08.2011 and has purchased the C - schedule property out of the consideration received by selling the said property at O.S. No.594/2019 30 Mylasandra. Thus, it is contended that B.C. Anantharamaiah having bequeathed his properties under the Will dated 11.06.2010 do not have any source of income and the income derived from the rent was sufficient for his maintenance. Therefore, the question of acquiring C - schedule property by B.C. Anantharamaiah is not tenable.
10. Similarly, the defendant No.4 in her written- statement has stated that C - schedule property is self- acquired property of defendants No.2 and 5, which they have acquired by disposing of the sites which was purchased by them earlier. The defendant No.5 has adopted the written- statement of defendants No.1 and 2 and called upon the plaintiff to prove the averments with respect to C - schedule property. Before adverting to the evidence it is significant to note that the plaintiff in her rejoinder has contended her father had obtained loans of Rs.50,000/- and 80,000/- to repair the A - schedule property from the plaintiff and the plaintiff's father had promised to return the loan. It is also her O.S. No.594/2019 31 case that plaintiff's father had also requested to arrange ticket to USA in October 2007 and the plaintiff had arranged for the same by way of cheque by paying Rs.56,248/-.
11. On perusal of the materials produced by the plaintiff, it is evident that the plaintiff has not produced any material documentary evidence in so far as the acquisition of C
- schedule property by B.C. Anantharamaiah and there is no material averment in the plaint to demonstrate as to how B.C. Anantharamaiah acquired C - schedule property. Where a plaintiff claims a particular land to be the joint family property acquired by B.C. Anantharamaiah a concise statement of material facts is needed to maintain the action by including a statement in the pleading as to how the said property was acquired and with what resources. The plaintiff has merely stated that the entire amount for the transaction was invested by B.C Anantharamaiah. In this light, it is required to examine the oral and documentary evidence produced by the respective parties.
O.S. No.594/2019 32
12. On a minute scrutiny of the evidence it is manifest that PW.1 in her cross-examination has clearly admitted that apart from rental income accrued from A - schedule property, B.C. Anantharamaiah did not have any other source of income. She has further stated that apart form producing Ex.P.17, which is the certified copy of the sale deed in respect of C - schedule property, she has not produced any other document. The original sale deed of C - schedule property is confronted during the cross-examination, which is marked as Ex.D.1. PW1 has deposed that she not have any document to show that her father invested Rs. 95 Lakhs as on the date of purchase of C - schedule property. PW.1 in her evidence stated that she has paid a sum of Rs.80,000/- Rs.50,000/- and Rs.57,000/- on different occasions to her father as per his request. PW.1 has further stated that she has paid Rs.80,000/- and Rs.50,000/- on different dates to her father to meet the repair charges of 'A' schedule property. In this regard the plaintiff herself has produced her account extract at Ex P14 and Ex.P16 to O.S. No.594/2019 33 demonstrate the transaction of 50,000/- and 80,000/- on 19.1.2007 and 4.11.2008 respectively.
13. The plaintiff seeks to rely on the evidence of DW1 wherein DW1 has stated that it could be that B.C Anantharamaiah had purchased 'C' schedule property in the name of defendants No.2 & 5 . Further DW.1 has stated that out of the remaining consideration amount of sale of 04 th Block Jayanagar property, the remaining amount was utilized for purchase of sites at Kengeri but the evidence of the DW1 in regard is not helpful to the plaintiff in the absence of any concrete material in the form of documentary evidence . When PW1 in her evidence has clearly admitted that, defendant No.2 & 5 were employed in India prior to the period they left for the U.S and she has pleaded ignorance regarding the amount sent by the defendant No.2 to the parents of the plaintiff this fact indicates that she was not aware of the income of the defendant no.2 and 5 at the USA and in the absence of any evidence to substantiate that no resources were available to the second and O.S. No.594/2019 34 fifth defendant to purchase the C Schedule property, the plaintiff's case cannot be believed. The contention of the defendants C - schedule property is the self-acquired property of defendant No.2 and his wife Asha Mohan which has been acquired from her savings at Mylasandra in the year 2005 as she has sold her property to one Ramesh and purchased the C
- schedule property out of the consideration received by selling the said property at Mylasandra is not disputed by the plaintiff during the course of evidence. There is absolutely no cross examination eliciting material details regarding the utilization of the funds of Mylasandra property for the purchase of property at C Schedule when the one of the beneficiaries of the sale transaction was available before the court as DW5 . PW.1 has further admitted that her father was not doing any business after retirement. Upon perusal of Ex.P17 which is the certified copy of the sale deed dated 2.9.2011 it is evident that one Charulata has executed the sale deed in favour of the defendant no.2 and 5 for the consideration of Rs. 95,00,000/-.
O.S. No.594/2019 35 The father of the plaintiff has represented the defendant no.2 and 5 in the said transaction as their power of attorney holder. There is no recital in the sale deed that the sale consideration is paid by the power of the attorney holder of the purchasers on their behalf and there is nothing on record to hold that B.C. Anantharamaiah had such a huge amount at his disposal for the purchase of the property. It is not the case of the plaintiff that the sale consideration has passed from the account of the father of the plaintiff and the amount was held by him exclusively. The plaintiff has not provided the details of the bank accounts mentioned at Ex.P17 . The Plaintiff has not summoned the banker of her deceased father to establish that the account transactions pertaining the sale consideration and availability of the funds in his account.
14. It is well settled that under Section 101 and 103 of Indian Evidence Act, the primary burden is on the plaintiff to prove the averments in respect of the relief sought. Section 101 of the Indian Evidence Act provides : Whoever desires any O.S. No.594/2019 36 Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 103 of the Indian Evidence Act provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Thus in the light of the above provisions, it can be concluded that though the plaintiff has asserted that the C schedule property was purchased by her father and it formed the part of his estate but the plaintiff has been unsuccessful in establishing the same. Hence the plaintiff has failed to prove that C - schedule property was acquired by B.C. Anantharamaiah, during his lifetime.
REGARDING THE WILL DATED 11.06.2010
15. The defendants in their written-statement have also set up the defence that B.C. Anantharamaiah had executed a O.S. No.594/2019 37 Will dated 11.06.2010 out of his own will which was duly notarized before P. Anuradha, Advocate and Notary, whereby he has bequeathed A - schedule property and ground floor of out house existing in A - schedule property to defendant No.3, first floor of the out house of the A - schedule property to defendant No.1 and B - schedule property to defendant No.2. Further, it is contended that B.C. Anantharamaiah provided monetary assistance to the plaintiff for putting up construction over the property Padmanabhanagar which B.C. Anantharamaiah got by requesting his younger brother B.C. Krishna Murthy for quite reasonable price.
16. Further, on the death of B.C. Anantharamaiah, the defendant No.2 had got the katha transferred in his name in respect of the B - schedule property on the basis of the Will in the records of BBMP and defendant No.3 is enjoying the usufructs of A - schedule property by collecting the rents from the ground and 1st floors of the outhouse and all the parties are enjoying their respective portions of A and B schedule O.S. No.594/2019 38 properties as per the mandate of the Will and the plaintiff and defendants No.3 and 4 had knowledge of the Will bequeathed by B.C. Anantharamaiah and by suppressing the material facts regarding execution of the Will the plaintiff has filed the suit.
17. The defendants who have set up the defense of Will dated 11.06.2010 executed by B.C. Anantharamaiah, in support of their case and have adduced the evidence of DW.1, who is the wife fo B.C. Anantharamaiah and one of the attesting witnesses to the Will ; DW2 is defendant no.5 and wife of defendant no.2 ; DW.3, who is the daughter of B.C. Anantharamaiah and DW.4 - Advocate Notary before whom the un - registered Will was notarized.
18. Under Ex.D.4, which is the Will dated 11.06.2010 executed by B.C. Anantharamaiah, the property situated at 2nd Block Jayanagar is bequeathed in favour of 2nd defendant and property situated at Shakambari Nagar, J.P. Nagar 1 st O.S. No.594/2019 39 Phase is bequeathed in favour of defendant No.3 . It is the further case of the defendants under EX.D4, the father of the plaintiff has clearly excluded the plaintiff and defendant no.4 as B.C. Anantharamaiah has provided monetary assistance to the plaintiff so as to put up a reasonably good structure on her vacant site and had provided cash assistance to defendant No.4. It is further stated that under the Will the father of the plaintiff has made a provision in favour of defendant No.1 to enjoy the possession and rent of first floor of out house to meet her financial needs and after the death of 1st defendant the first floor portion of the outhouse may be enjoyed by the 3rd defendant.
19. Pursuant to the written-statement of the defendants No.1 and 2, the plaintiff has filed rejoinder denying the execution of the Will on 11.06.2010 and contended that the defendants No.1 to 3 have created afore- said document to defraud the plaintiff. It is further contended that the plaintiff's father was suffering from age-
O.S. No.594/2019 40 related ailments such as respiratory problem, prostrate gland operation and malfunctioning of the heart, low sugar and low B.P. and before his demise he was suffering from shrinkage of brain and thus, he was not in a position to execute any document. That plaintiff's father was hospitalized for several times for various medical emergencies and even the defendant No.1 is suffering from Alzamer disease and in this behalf this court has framed additional issue no.1 on 19.6.2024. As the defendants have specifically contended that the plaintiff was provided with monetary assistance for putting up construction on the site at Padmanabnagar an additional issue in this regard has also been framed on 19.6.2024. As these additional issues have arise in the rejoinder they are taken up together to avoid repetition of facts.
20. DW.1, who is aged 85 years and in support of the Will she has got marked the Will as Ex.D.4. The signature of B.C. Anantharamaiah on the Will is marked as Ex.D.4(a) ;
O.S. No.594/2019 41 signature of the DW.1 on the said Will is marked as Ex.D.4(b); signature of another attesting witness by name Somaiah is marked as Ex.D4(c).
21. In compliance of Section 68 of the Indian Evidence Act, the evidence of one of the attesting witness is lead by the defendants. In this context it is beneficial to refer to the judgment in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SUPREME COURT 443, It is held that " What is the true legal position in the matter of proof of wills ? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under ss. 45 O.S. No.594/2019 42 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression " a person of sound mind " in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what O.S. No.594/2019 43 it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by s. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters.
However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not ; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document - propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's O.S. No.594/2019 44 mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his O.S. No.594/2019 45 own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. PrOpounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in O.S. No.594/2019 46 actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson (1) " where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth ". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.
22. In the case of J.T.Surappa and Another V/s Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others, ILR 2008 Karnataka 2115, the Hon'ble High Court held as under
O.S. No.594/2019 47 (A) INDIAN SUCCESSION ACT, 1925 - SECTION 2(h) - Will - Proof of - Legal requirements -
Duty of the Court - Five steps to be considered
- HELD, Under the Act, the Will to testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all. Therefore, the first step is that if the documents produced before the Court prima facie do not satisfy these legal requirements, the Court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim based on the said document - FURTHER HELD, The second step is that when the legal heirs are disinherited, the Court has to scrutinize the evidence with greater degree of care than usual - The third step would be to find out whether the testator was in a sound state of mine at the terms of executing the Will - The fourth step would be to find out whether there exists any suspicious circumstances surrounding the execution of the Will - The fifth step is to consider whether the Will that is executing is in accordance with Section 63 of the Act read with Section 68 of the Evidence Act.
(B) INDIAN SUCCESSION ACT, 1925 - SECTION 63 R/W SECTION 68 - Execution of a Will under - Attestation and Execution - procedure
- HELD, The Will that is executed is in accordance with Section 63 of the Act read with Section 68 of the Evidence Act. The Will is a document required by law to be attested.
O.S. No.594/2019 48 The execution of Will must include both execution and attestation. "Attestation" and "execution" are different acts, one following the other. There can be no valid execution without due attestation, and if due attestation is not proved, the fact of execution is of no avail - The Court has to find out whether the Will bears the signature of the testator and the said signature is placed at a place with the intention of giving effect to the Will. Further the said Will has been attested by two witnesses and whether the witnesses have seen the testator affixing his signature to the Will in their presence and if not at least they receive from the testator a personal acknowledgment of his signature or mark and each of them shall sign the Will as attesting witness in the presence of the testator though it shall not be necessary that both of them should be present at the same time -
FURTHER HELD, Section 68 of the Evidence Act deals with proof of execution of documents required by law to be attested. A Will is a document which requires to be attested under Section 63(c) of the Act. Therefore, the said document shall not be used as evidence until at least one attesting witness 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. Whether such a Will is registered or not registered, in the eye of law it makes no difference. Even if the said will is registered under the provisions of the Indian Registration Act, 1908 whether the execution of the Will is admitted or denied, it is O.S. No.594/2019 49 necessary to call an attesting witness in proof of the execution of the said Will. Under no circumstances the proof of execution of the Will is dispensed with in law - It is only after the Court is satisfied declare that Will is executed in accordance with law, as such it is valid and enforceable.
23. In the light of the above precedents, let us examine whether the Will dated 11.6.2010 executed by B.C. Anantharamaiah is proved. On a meticulously scrutiny of the evidence it is manifest that the defendant no.1 who is the wife of the testator is claiming to be the attesting witness to the Will. The defendants have contended that the defendant no.1 is also having life interest in the rental income of first floor of out house of A schedule property to meet her financial needs and after the death of 1st defendant the first floor portion is allotted to the 3 rd defendant. However at this stage it is appropriate to refer to Section 67 and Section 255 of the Indian Succession Act:
Section 67: Effect of gift to attesting witness. - A Will shall not be deemed to be O.S. No.594/2019 50 insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting or the wife or husband of such person or any person claiming under either of them.
Section 255 . Probate or administration, with Will annexed, subject to exception - Whenever the nature of the case requires that an exception be made, probate of a Will, or letters of administration with the Will annexed, shall be granted subject to such exception."
24. It is pertinent to note that S.67 which is divided into two parts deals with attestation or sufficiency of attestation of will in the first part and declares bequest to attesting witnesses' spouse as void in the second part. It is also noted that the second part of S.67 has nothing to do with the first part of S.67 dealing with attestation or sufficiency of attestation by a witness. Therefore the DW1 is competent to adduce evidence regarding the attestation but at the risk of losing the bequest made in her favour Now let us examine the validity of the Will.
1. The defendant no.1 who claims to be the attesting witness to the Will has filed her written statement along with defendant no.1 but in the O.S. No.594/2019 51 written statement she has not whispered on the execution and attestation of the Will by her late husband.
2. The evidence affidavit of DW1 does not state on the execution of the Will before the notary public. The process of notarization involves the person making the Will (testator) signs the document in the presence of the notary, the notary verifies the identity of the testator and their state of mind and then the notary stamps and signs the Will, making it a notarized Will. While the Registration Process involves that 1. the testator or their authorized representative presents the Will to the registrar for registration and documentation . 2. The registrar verifies the identity of the testator and witnesses. 3. Upon successful verification, the registrar stamps the Will indicating its registration. There is a material O.S. No.594/2019 52 difference between getting a document notarized before a Notary Public and presenting a document for registration. The importance of registration lies only in its ability to provide a strong layer of legal protection to a document which minimizes the risk of the Will being lost, damaged, or tampered with. Although the notarization or registration of the document does not add or enhance the value of the Will but when admittedly it is the case of the defendants that the Will is notarized before DW4 and the same is entered in the Notary register of DW4 at serial no. 875 as produced at Ex.D6 , the attesting witness ought to have stated regarding the execution of the document by the testator before the Notary Public.
25. DW.1 in her cross-examination, no doubt has clearly admitted that B.C. Anantharamaiah has executed the Will, but when Ex.D.4 (Will dated 11.6.2010) is confronted O.S. No.594/2019 53 to DW.1, she says that it is one of the documents of the suit and when asked to identify her signature on the said Will, she states that she has affixed her signature only because she was directed to do so and she is not able to recollect the same. Thus she has failed to re identify her signature on Ex.D4 in the cross examination.
26. DW.1 has further stated that she has identified the signature on Ex.D.4 based on the suggestions made by her counsel. But, however, she states that she has affixed her signature in the year 2010. DW.1 further states that she is unable to recollect as to who all were present at the time of the execution and attestation of Ex.D.4 (WILL dated 11/06/2010). DW1 is unable to depose accurately and specifically regarding her attesting the WILL in the presence of the testator. Section 3 of the transfer of property Act provides the meaning of attestation and the word "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each O.S. No.594/2019 54 of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary:]
27. Section 68 of the Indian Evidence Act: Proof of execution of document required by law to be attested.: If a document is required by law to be attested, it shall not be used as evidence until 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 :[Provided that it shall not be necessary to call an attesting witness in proof of the O.S. No.594/2019 55 execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] [Inserted by Act 31 of 1926, Section 2.] Section 63 of the Indian Succession Act:
63. Execution of unprivileged Wills.--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:--(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.(c)The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
O.S. No.594/2019 56
28. The primary requirement of Section 68 of the Indian Evidence Act is not only to prove that the attesting witness had seen the testator affixing his signature to the Will, but also the testator witnessing the affixing of signature by the witness. No doubt, the said provision is very clear that all the attesting witnesses to the Will need not be present at the same time. But fundamentally the presence of the testator during the time when the attesting witness is affixing her signature is a mandatory requirement. Therefore, the evidence of DW.1 in this regard does not inspire the confidence of the court in order to prove the due execution and attestation. In J.T.Surappa and Another V/s Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others,(Supra) it is held that the execution of Will must include both execution and attestation. "Attestation" and "execution" are different acts, one following the other. There can be no valid execution without due attestation, and if due attestation is not proved, the fact of execution is of no avail.
O.S. No.594/2019 57
29. In this context, it is relevant to quote the provisions of Section 71 of the Indian Evidence Act which runs as under:
Section 71 :
Section 71 deals with "proof when attesting witness denies the execution". It reads as follows:
"71. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
30. It is evident that the said provision comes to the aid of the propounder of the Will only when the attesting witness denies the execution or does not recollect the execution, in such cases the party can rely on other evidence.
31. But the next question that arises whether Section 71 would come to the aid of the defendants to lend O.S. No.594/2019 58 assistance and so as to rely on other evidence apart from the requirement of attestation. Section 71 of the IEA is another connected section which in a way reduces the rigours of the mandatory provision of Section 68 of the IEA. Section 71 is meant to lend assistance and come to the rescue of a party which had done its best to prove the due execution of the 'Will' but was let down by the attesting witnesses, who either denied the execution of the 'Will' or failed to recollect the fact of execution of the 'Will' by the testator.
"Section 71 of the IEA provides that if the attesting witness denies or does not recollect the execution of the document ('Will'), its execution may be proved by other evidence."
Section 71 of the IEA is a sort of safeguard introduced by the legislature to the mandatory provisions of Section 68 of the IEA, where it is not possible to prove the execution of the 'Will' by calling the attesting witnesses, though alive. Section 71 of O.S. No.594/2019 59 the IEA can only be requisitioned when the attesting witnesses who have been called fail to prove the execution of the 'Will' by reason of either their denying their own signatures, or denying the signatures of the testator, or having no recollection as to the execution of the document ('Will'). Section 71 of the IEA has no application when one attesting witness has failed to prove the due execution of the 'Will' and the other attesting witnesses are available who can prove the execution of the 'Will' if they are called.
32. It is not the case of the defendants herein that the other attesting witnesses are not available on account of their death or other circumstances. When DW.1 has been unable to recollect certain material facts to prove the due execution of the Will, it was incumbent upon the defendants to summon other attesting witness Somaiah in case he is alive and to prove the due execution of the Will through the said witness. Here, in the case on hand, the defendants who have set up un-registered Will as their defense but have O.S. No.594/2019 60 not explained as to the current status of the another attesting witness namely - Sri Somaiah. There is no averment regarding his whereabouts and thus due attestation is not proved and consequently the fact of execution is of no avail. Thus in the light of the above the execution and attestation of Will is not proved under Section 68 of Indian Evidence Act .
33. Suspicious circumstances : Apart from the non- compliance of Section 68 of the Indian Evidence Act, there are other suspicious circumstances which have caught the attention of this court.
(A) The defendants No.1 and 2 in their written- statement have not specifically pleaded as to how the Will dated 11.06.2010 by B.C. Anantharamaiah came into their hands. They have only stated that the Will executed by B.C. Anantharamaiah was within the knowledge of the plaintiff and defendants No.3 and 4.The DW.1 has stated in para no.4 of her evidence affidavit has stated that after getting the Will O.S. No.594/2019 61 notified B.C. Anantharamaiah invited all his three daughters namely, the plaintiff, defendants No.3 and 4, when 2 nd defendant had visited India during 2010 and hosted a ceremonial party, gave gifts to the sons-in-law and their children and explained his intention and desire regarding execution of the Will and gave the true notarized copy of the Will to his children in the presence of the husband of 3 rd defendant, husband of plaintiff, husband of defendant No.4 and defendant No.2 and his wife and retained the original Will with him and gave the original title deeds in respect of the B - schedule property to Anil Pandu, who is the brother of defendant No.5, a couple of days before his demise in the presence of herself and plaintiff. The said averment made in para no.4 is not part of the pleading of the written-statement filed by defendants No.1 and 2. It is only in the evidence that such a story has been created. DW.1 in her evidence affidavit has stated that the original copy of the Will was retained by B.C. Anantharamaiah while DW.2 in her evidence states that O.S. No.594/2019 62 her father-in-law had told that he would deliver the original Will to the suitable person at the appropriate time and every body accepted the same. DW.1 in her cross examination has stated in her evidence that she is unaware as to who provided her the Will. She later on states that Ex.D.4 - Will was in the custody of defendant No.3.However at the time of cross-examination of PW.1, it is suggested by the counsel for the defendants that the Title Deeds of 'A' schedule property has been handed over along with the original of the WILL by B.C Anantharamaiah to the defendant No.3 and her husband in the presence of the children of B.C Anantharamaiah. But DW.1 very surprisingly has stated that in her cross- examination that Ex.D4 WILL executed by her husband was kept in a box. DW.2 has stated that her father-in-law delivered the notarized attested photo copy of the Will to all her sisters-in-law of defendant No.5 and told that he would deliver the original to the suitable person at the appropriate time and every body has accepted his words without any O.S. No.594/2019 63 demur. On the scrutiny of the above evidence it is evident there is a glaring contradiction between the pleading and evidence. There are material contradictions in the suggestions made to the plaintiff and the evidence of the defendants in regard to the custody of the Will. There is no pleading as to from whose custody the Will was produced. There is no explanation as to how the original copy retained by B.C. Anantharamaiah came to the custody of the defendant No.1 on his death in order to produce the same before the court therefore the same leads to a suspicious circumstance which has not been removed by the defendants no.1 and 2.
(B) It is one of the prime contentions of the defendants that the B.C. Anantharamaiah conducted a ceremonial party and delivered the copies of the same to his daughters. Apart from DW1, DW.3, who is the sister of plaintiff is examined in this behalf and has also adopted the written-statement of defendants No.1 and 2 but there is no averment regarding O.S. No.594/2019 64 the ceremonial party in the written statement of defendant no.1 and 2 however DW3 in her evidence affidavit has stated that B.C. Anantharamaiah after getting the Will notified before the Advocate Notary had invited the plaintiff, defendants No.3 and 4 along with other family members to his house and during the visit of the 2nd defendant to India and explained that he had written a Will bequeathed by him in consultation with the mother of the plaintiff and delivered the cover containing the attested true copy of the Will bequeathed by him to all of them along with the gifts to all the members of the family and she has produced the attested copy of the Will in her evidence as Ex.D.5. The Envelope containing the handwritten of her father is marked as Ex.D.5(a). DW3 has stated that the copy of the Will was given to her by her father in an envelope containing her name. Though she has claimed that the handwriting on Ex.D5(a) is that of her father and has stated that she has no difficulty to produce any other document containing the O.S. No.594/2019 65 handwriting of her father, she has not produced it before the court for comparison. If at all Ex.D5(a) envelope contains the handwriting of B.C. Anantharamaiah the same could have produced along with a copy of any other document containing his writing. Neither it is produced at the time of evidence of DW3 or subsequently. Similarly, if at all the ceremony was conducted disclosing the execution of the Will by B.C. Anantharamaiah during his lifetime itself, nothing prevented them to plead the same in the written- statement. Further, DW.3 in her cross-examination has admitted that her father never met her brother defendant No. 2 never between 2007 and 2012 . DW2 who is the wife of defendant no.2 has stated in her evidence that she has visited India in 2010,2012,2013,2015,2016,2017,2022 and 2023 and only in 2013,2015,2016and 2017 she had come to India along with her family members and on all other occasions she had come alone therefore it is manifest that defendant no.2 was not present on the day when B.C. O.S. No.594/2019 66 Anantharamaiah gave the copies of the Will to his daughters and therefore the evidence to the effect of hosting a ceremonial party to all the members of the family and explaining the contents of the Will delivering the same to the daughters is not believable and thus raises suspicion in the mind of the court.
(C) DW3 has categorically stated that she has filed the written-statement after discussing with defendants No.1, 2 and 5 therefore it indicates that the evidence of DW3 is not independent. DW3 has initially placed exparte and only February 2024 she has come on record. This is another circumstance which creates suspicion in the mind of the court.
(D) On perusal of Ex.D.4, it is evident that the said document does not contain any recital regarding identification of the executant by the Notary Public. DW.4, who is the Notary Public examined before this court has clearly admitted in her evidence that she had not collected O.S. No.594/2019 67 any ID card from the executant namely B.C. Anantharamaiah to verify the identity of B.C. Anantharamaiah prior to notarization of the Will. She also states very categorically in her evidence that she has no personal acquaintance with B.C. Anantharamaiah prior to notarization of the Will.
(E) One of the prime beneficiaries under the Will namely the defendant no.3 is not examined by the defendants. Though the defendant no,3 has not participated in the proceedings after filing vakalat but she ought have been summoned by the defendants no.1 and 2 to probabalize their defense. The defendant no.3 has been alleged to have bequeathed with the A schedule property with the out house portion. Therefore the said defendant was equally saddled with the burden of proving the Will along with the defendant no.1 and 2 but surprisingly she has not appeared before the court. It is the case of the defendants that upon the demise of the father of the second defendant the parties have acted upon O.S. No.594/2019 68 the terms of the Will and they are in their respective portions of the properties allotted to them and to prove this aspect of the matter at at least she was required to appear before the court. The non examination of the defendant no.3 creates another suspicious circumstances.
(F) There is no medical record or evidence to suggest that the testator was hale and healthy was was having sound disposing state of mind to execute the will as on 11.6.2010. The plaintiff in her rejoinder to the written statement has specifically disputed the mental and physical ability of the testator to execute the Will by stating that he was suffering from age-related ailments such as respiratory problem, prostrate gland operation and malfunctioning of the heart, low sugar and low B.P. and before his demise he was suffering from shrinkage of brain and even the mother of the plaintiff was suffering from Alzemer. In the light of the above averments it was required of the defendants to prove the sound disposing state of mind of the testator. IT is also O.S. No.594/2019 69 relevant to mention that the DW1 who has adduced evidence as an attesting witness and as as wife of the deceased testator has failed to prove the due execution of Will on account of loss of memory. Nothing prevented the defendants to establish that the testator as well as the attesting witness were mentally fit to understand the consequences of their acts and deeds as on the date of execution of the Will. Therefore non production of any evidence by the defendants in this regard has created another suspicious circumstance. (G) Yet another notable feature of the case is that, DW.1 has stated that the Will executed by B.C. Anantharamaiah was duly notarized as recorded earlier, the process of notarization involves the executant affixing his signature in the presence of Notary Public which forms the significant part of the notarization. The said aspect of the matter has not been clearly explained either in the written-statement or evidence of DW.1, which gives rise to another suspicious circumstance.
O.S. No.594/2019 70 The Will relied upon by the defendants disinherits the plaintiff and defendant No.4 on the ground of rendering of financial assistance. There is no material to justify the same, which again leads to another suspicious circumstance. Thus, the above suspicious circumstances when viewed independently do not demonstrate that the Will executed by B.C. Anantharamaiah was in the exercise of his free will and volition. Accordingly Issue No.2 is answered in the Negative.
34. Additional issue no.1 dated 19.6.2024: The Plaintiff in her rejoinder has specifically contented that her father was suffering from age-related ailments such as respiratory problem, prostrate gland operation and malfunctioning of the heart, low sugar and low B.P. and before his demise he was suffering from shrinkage of brain and thus, he was not in a position to execute any document and the mother of the plaintiff was suffering from Alzemer in this regard additional issue no.1 is framed on 19.6.2024 which reads as follows:Whether the plaintiff proves that, her father B.C. O.S. No.594/2019 71 Anantharamaiah was suffering from age related illness and her mother defendant No.1 is suffering from ALZMER and the plaintiff and her husband looked after them throughout their life as stated at Para 2 of her rejoinder dated 28.06.2019? The Learned Counsel for the defendants have sought to rely on the evidence of PW1 wherein she has stated she has no documents to prove that her mother was hospitalized due to her ailment, she has not produced any document to show that her mother was suffering from ALZMER and said fact was never stated to her father. But this court has already recorded a finding that non production of the any medical records to prove the prove mental and physical ability of the testator has given rise to suspicious circumstances and unless the primary burden is discharged by the defendants regarding the due execution of the Will the question of proving the contentions by the plaintiff under the above issue does not arise for O.S. No.594/2019 72 consideration. Thus, Additional Issue No.1 framed on 19.06.2024 is answered accordingly.
35. ADDITIONAL ISSUE No.2 framed on 19.06.2024 :
In the light of the contentions taken in the written-statement that B.C. Anantharamaiah had provided monetary assistance to the plaintiff for putting up construction over the property at Padmanabhanagar. This defense draws inspiration from the recitals of the Will executed by B.C. Anantharamaiah, which mentions regrading the financial assistance provided to the plaintiff for the construction. Though the plaintiff has filed rejoinder denying the claim and has produced the building plan, estimate and her salary slip at Ex.P21,22 and 25 but the primary burden is on the defendant No.1, 2, 4 and 5 to establish that monetary assistance was provided to the plaintiff by their late father for putting construction .
36. There is no material documentary evidence to substantiate that B.C. Anantharamaiah had provided O.S. No.594/2019 73 monetary assistance. The defendant statement have merely stated that B.C. Anantharamaiah had provided monetary assistance to the plaintiff for putting up construction in Padmanabhanagar which B.C. Anantharamaiah had got her requesting his younger brother B.C. Krishna Murthy for quite a reasonable price apart from the aforesaid averment there is no other material averment to demonstrate the actual contribution made by father of the plaintiff to her for the purchase of site by the plaintiff. DW.1 in her evidence affidavit has stated that the father of the plaintiff had extended financial assistance to the plaintiff to purchase and put up construction over the property which was acquired by the wife of B.C. Krishna Murthy at the request of the father of the plaintiff. There is a material variation between the written-statement of defendant No.1 and 2 and the evidence affidavit filed by DW.1. Thus the evidence to that effect that the plaintiff acquired the site from her Aunt (wife of B.C.Krishnamurthy) given by DW.1 does not hold any water, O.S. No.594/2019 74 as it is a well-settled law that evidence cannot travel beyond the pleadings.
37. DW.1 in her cross-examination has categorically admitted that she is absolutely unaware of the amount contributed by B.C. Anantharamaiah to the plaintiff to render financial assistance for putting construction at Padmanabhanagar and she is also unaware on the dates on which the payments were made to the plaintiff. DW.1 has admitted that she has no document to show that the payments were made by the father of the plaintiff to the plaintiff. DW.1 has admitted that she had no knowledge regarding the transactions of her husband and her husband would hardly disclose any information to her. She has further admitted that she has no document to substantiate that the property of her brother-in-law and his wife was transferred in favour of the plaintiff at the instance of her husband. DW.1 has admitted that she does not know the amount paid by her husband to the plaintiff. DW3 in her O.S. No.594/2019 75 affidavit evidence has stated the father of the plaintiff had paid sale consideration himself to the aunt of the plaintiff and further a sum of Rs. 5,00,000/- was paid to the plaintiff for the construction of the property at Padmanabagar .DW3 has admitted that she has no documents to show that her father requested her Uncle to give site allotted to her Aunt Vijayalakshmi to the plaintiff and she has no document to show that a sum of Rs.5,00,000/- was paid to the plaintiff for the construction of the house at Padmabnagar and she has no document for payment of Rs.5,00,000/- by her father. DW3 has admitted that there is a variance between the pleading and evidence affidavit filed by her. Section 103 of the Indian Evidence Act provides that Section 103 - Burden of proof as to particular fact the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Thus if it is the specific contention of the defendants that the O.S. No.594/2019 76 plaintiff was provided with the monitary assistance than that particular fact has to be proved by them. There is no iota of evidence produced by them therefore the question of shifting the burden on the plaintiff to disprove the same does not arise. Besides it is pertinent to note that there is no material evidence as to why the testator disinherited the plaintiff and defendant no.4. Though it is contended that the there is recital in the Will regarding the financial assistance rendered to the plaintiff and the defendant no.4 but there is no material evidence to prove the same. DW3 in her evidence affidavit has stated that she was provided a sum of Rs.5,00.000/-by her father though she did not want it. But there is no pleading to that effect. Admittedly the defendant no.4 has adopted the written statement of defendant no.1 and 2. The written statement of defendant no.1 and 2 does not contain any averment stating the payment of sale consideration by the father of the plaintiff to the wife of B.C.Krishnamurthy or payment of Rs. 5,00,000/- to the O.S. No.594/2019 77 plaintiff. DW4 has not produced any material to prove the payments made to her or the plaintiff.
38. Hence the evidence on record creates suspicious circumstances in the mind of the court regarding the execution of the Will by B.C. Anantharamaiah as no material is produced to justify the disinheritance of the plaintiff and defendant no.4. Therefore on a careful examination of the evidence on record it is evident that the defendant no.1,2,and 4 have failed to prove that the father of the plaintiff provided monitary assistance to the plaintiff for putting up construction over the site at Padmanabnagar . Accordingly Additional ISSUE No.2 DATED 19.06.2024 is answered in negative.
39. ADDITIONAL ISSUE FRAMED ON 02.02.2024 REGARDING GIFT DEED It is the case of the plaintiff that after the death of B.C. Anantharamaiah, the defendant No.2 has got the katha O.S. No.594/2019 78 transferred in his name in respect of the B - schedule property and has executed the gift deed in favour of the defendant No.5 - his wife on 18.08.2018. In support of the said contention, the plaintiff has produced Ex.P.10 - E.C. in Form No.16 and tax paid receipt at Ex.P.11 for the years 2018-19, Katha certificate standing in the name of the defendant No.2 as Ex.P.12 and P.13. Apart from these documents, there is no other document produced to establish that the defendant No.2 has executed gift deed in favour of the defendant No.5.
40. It is the contention of the defendant NO.2 that after the death of B.C. Anantharamaiah on 14.05.2012, the defendant No.2 has obtained katha in his name in respect of the B- schedule property, And as defendant No.2 was suffering from certain serious health issues, he could not administer the property and as such, he has executed the gift deed in respect of half portion of B - schedule property in favour of the defendant No.5. The title claimed by the O.S. No.594/2019 79 defendant No.5 is clearly on the basis of the gift deed executed in her favour. The validity of the gift deed loses its significance as the title of the donor on the bases of the Will been held against defendant No.2 on account of the findings recorded on Issue No.2. Therefore, the gift deed if any executed by defendant No.2 is not binding on the share of the plaintiff. Hence, Additional Issue framed on 02.02.2024 is answered in the Affirmative.
41. ISSUE No.4 : In view of the findings recorded above, it is necessary to ascertain the share of the plaintiff in the estate of her father. Plainitff being the daughter is the Class I heir under the Schedule of the Hindu Succession Act, 1956. The defendants no.1 to 4 are also Class I heirs entitled to 1/5th share in A and B properties under Section 8,9 and 10 of the Hindu Succession Act. Under Section 19 of the Hindu Succession Act, the mode of succession of more heirs is provided, wherein if two or more heirs succeed together of an intestate they shall take the property percapita O.S. No.594/2019 80 and not per stirps and as tenants in common and not as joint tenants. Tenants in common means that the share of each co-owner is specific and devolves on the death of the intestate. Therefore the plaintiff is entitled to succeed to the estate of B.C. Anantharamaiah to the extent of 1/5 share along with the defendant no.1 to 4 in A and B properties.
42. SUMMARY OF THE ABOVE FINDINGS : As this court has recorded findings on several issues, it is thought fit that the above findings need to be summarized for the better understanding and to avoid any ambiguity.
1. The plaintiff has the relief of partition in respect of A,B, and C schedule properties. But in view of the findings recorded above this court has held that the plaintiff has failed to prove that C schedule property falls part of the estate of the deceased B.C. Anantharamaiah. Thus the plaintiff together with the defendants no.1 to 4 are held entitled to succeed to the estate of B.C. Anantharamaiah only O.S. No.594/2019 81 in respect of A and B properties. The plaintiff is entitled to 1/5th share in A and B properties only . Hence recasted issue no.1 is answered as partly affirmative and additional issue dated 25.10.2023 with regard to C schedule property is answered in negative.
2. The defendant no.1,2,4 and 5 have taken up the defense of Will in their written statement but in view of the findings recorded above this court has held that defendants have failed to prove due execution and attestation of the Will by Late B.C. Anantharamaiah for non compliance of Section 68 of the Indian Evidence Act.
3. Apart from the findings recorded on the compliance of Section 68 of the Indian Evidence Act, this court has found that there are several suspicious circumstances which the propounder of the Will which the defendants have failed to remove which is inclusive of the non production of medical evidence to prove the sound disposing state of mind of the testator. The primary reason for disinheriting the plaintiff O.S. No.594/2019 82 was the alleged financial/monitary assistance provided to the plaintiff for putting up construction in the site at Padmanabnagar but this court has recorded a finding that the defendants have been unsuccessful in establishing the same. Hence issue no.2 and additional issue no.2 dated 19.6.2024 are answered in the negative ; The additional issue dated 2.2.2024 on Gift deed dated 18.8.2017 is answered in affirmative and the additional no.1 dated 19.6.2024 does not arise for consideration in view of the findings recorded on issue no.2.
43. ADDITIONAL ISSUE FRAMED ON 01.07.2024 :
REGARDING LIMITATION It is the specific contention of the defendants No.1 and 2 that late B.C. Anantharamaiah had executed Will dated 11.06.2010 and bequeathed A and B schedule properties in their favour and passed away on 4.5.2012 and the plaintiff has filed the suit in 2019 therefore the suit is barred by law.
O.S. No.594/2019 83
44. The plaintiff is admittedly seeking the relief of partition in respect of self-acquired properties of B.C. Anantharamaiah. The defendant in the written-statement though has set up a plea of Will, but has failed to prove the same. In the absence of proof of will, the general rules of succession which are applicable on the plaintiff to a deceased Hindu dying intestate would be applicable under Section 8, 9 and 10 of Hindu Succession Act. Along with schedule appended to the Hindu Succession Act. In the present case, the father of the plaintiff died in the year 2012 and it is contended that the plaintiff has been making demands for effecting partition in the suit schedule properties and it is stated that the defendants are postponing the same on one or the other pretext and finally on 20.08.2017, the plaintiff demanded her share in the suit schedule properties which was flatly denied by the defendants. It is also contended by the plaintiff that the defendant No.2 has transferred the katha of B - schedule O.S. No.594/2019 84 property into his name . The plaintiff has produced the Khata of B schedule property denoting the name of second defendant at Ex.P13 which is of the year 2018. Therefore on a careful perusal of material on record, it is evident that the defendants have failed to make out any case to indicate that the even after getting knowledge regarding the change of katha on the basis of the Will, the plaintiff has slept over her rights, thereby has indicated her acquiescence and has now estopped from claiming the relief of partition. Under Article 113 of the Limitation Act, the limitation prescribed is three years from the date of accrual of the cause of action. In this case the demand of the partition is stated to be made on 20.08.2017 and the suit is filed on 23.01.2019, which is within three years from the prescribed period. The implementation of the bequest and dealing with the property by alienation provides the right to sue, if the aggrieved co- heir does not make any enquiry or take any steps in this regard, then only he will be deemed to have the knowledge of O.S. No.594/2019 85 the bequest. The suit must be instituted when the right asserted in the suit is infringed when there is a clear and unequivocal threat to infringe that right by the defendants against whom the suit is filed. It is another defense of defendant No.1 and 2 that they has been in exclusive possession and enjoyment of suit properties from the date of death of his father till filing of the suit and the plaintiff never questioned them to enjoy the properties exclusively and thereby the plaintiff has lost their right to claim partition in the suit properties. So far this contention of defendant No.1 and 2 is concerned it is material to note that it is held by Hon'ble High Court of Karnataka in 2015(2) KCCR 3440 (Rama Vs. Smt. Mastamma) that married daughters deemed to be in joint and constructive possession of joint family properties though married daughters do not physically live with other members of family and therefore married daughters cannot be denied of their share. It is held by Hon'ble Apex Court in AIR 1996 SC 1724 (Sadasivam Vs. K. O.S. No.594/2019 86 Doraisamy) that exclusive possession of a cosharers does not amount to adverse possession against other cosharers unless such possession is exercised by ousting the other cosharers. It is held by Hon'ble High Court of Karnataka in 2008(4) Civil L.J. 4331 (Sri. Veerayya Mahantayya Koppad and Ors. Vs. Smt.Geetha and Ors.) that there should be clear pleading and proof to show ouster of the other co-sharers to calculate the period of limitation and in such circumstance the period of limitation runs under Article 110 of Limitation Act from the time when the exclusion becomes known to the co-sharer.
In the case on hand there is no clear cut pleading and proof in the written statement relating to ouster of his sisters from the suit properties. No doubt prior to the death of late B.C.Anantharamaiah marriage of his daughters was performed and they were residing with their husbands.
But as noted above it is held by Hon'ble High Court of Karnataka in Rama Vs. Smt. Mastamma case that married O.S. No.594/2019 87 daughters deemed to be in joint and constructive possession of joint family properties though they do not physically live with other members of the family and therefore they cannot be denied of their share. It is not the pleading and proof of the defendant No.2 that immediately after death of his father he did something to clearly oust his sisters from the suit properties and he brought this ouster to the knowledge of their sisters. Apart from pleading exclusive possession there is no pleading to claim ouster.
Therefore enjoyment of the suit properties by the defendant no.2 and 3 after death of their father is not sufficient to defeat the claim of plaintiff for partition in the suit properties. Therefore, the contention that the suit is barred by law of limitation is not sustainable and therefore, Issue framed on 01.07.2024 is answered in the Negative.
45. ISSUE NO.3:- REGARDING NON-JOINDER OF PARTIES:
O.S. No.594/2019 88 In Para No.17 of the written-statement filed by the defendant on 17.06.2019, the defendant No.1 and 2 had contended that the defendant No.2 subsequent to the bequest in his favour in respect of B - schedule property has gifted the said property in favour of his wife Asha Mohan under the registered gift deed dated 18.08.2017 and hence, she is a necessary party to the suit and the suit is bad for non-joinder of necessary parties. However, vide order dated 19.01.2024, the 5th defendant has been impleaded in the suit and therefore, the said issue does not arise for consideration.
46. ISSUE No.5: In view of my above discussions and findings on the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed in part with costs.
The plaintiff is entitled for 1/5th share in A and B schedule properties.
O.S. No.594/2019 89 The relief in respect of C - schedule property is dismissed.
The gift deed alleged to be executed by defendant No.2 in favour of defendant No.5 is not binding on the share of the plaintiff. The relief for mesne profits is treated as the relief for accounts, which shall be adjudicated by way of separate inquiry in the Final Decree Proceedings.
Draw decree accordingly.
For steps. Call on 23.10.2024.
(Dictated to the judgment writer, transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 31st day of August 2024).
(SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.
O.S. No.594/2019 90 ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 - Smt. Sudha S. - 02.11.2023
b) Defendants' side:
D.W.1 - Smt. Jayalakshmi A. - 14.03.2024 DW.2 - Smt. Asha Mohan - 14.03.2024
b) DW.3 - Smt. Pushpa Latha A. - 03.04.2024 II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P. 1 Certified copy of death certificate of D.C. Anantha Ramaiah Ex.P. 2 Certified copy of sale deed dated 26.09.1991 subject to production of typed copy.
Ex.P. 3 Certified copy of EC of A schedule property from 26.09.1991 to 31.03.2004 Ex.P. 4 Certified copy of form No. 16 with respect to A schedule propety Ex.P. 5 Digital copy of tax paid receipt with respect to A schedule property Ex.P. 6 Original Khatha certificate with respect to A schedule propety Ex.P. 7 Original Khatha Extract with with respect to A schedule property Ex.P. 8 Certified copy of sale deed dated 16.08.1996 with respect to B schedule O.S. No.594/2019 91 property subject to production of typed copy.
Ex.P. 9 Certified copy of EC with respect to B schedule property from 16.08.1996 to 31.03.2004 Ex.P. 10 Form No. 16 Ex.P. 11 Digital copy of tax paid receipt with respect to B schedule property Ex.P. 12 Original Khatha certificate with respect to B schedule property Ex.P. 13 Original Khatha extract with respect to B schedule property Ex.P. 14 Certified copy of Bank statement from 01.01.2007 to 31.01.2007 Ex.P. 15 Certified copy of Bank statement from 01.10.2007 to 31.10.2007 Ex.P. 16 Certified copy of Bank statement from 01.11.2008 to 30.11.2008 Ex.P. 17 Digital copy of sale deed dated 02.09.2011 with respect to C schedule property Ex.P. 18 Digital copy of EC with respect to C schedule property consisting of 3 page Ex.P. 19 On-line copy of tax paid receipt for the year 2023-2024 Ex.P. 20 Original pass port of Anantha Ramaiah Ex.P. 21 Approved plan of Padmanabha nagar property Ex.P. 22 Original rough estimation prepared by Keshav and Associates dated 06.06.1996 Ex.P. 23 Birth certificate of Suhas Chandra O.S. No.594/2019 92 Ex.P. 24 Arrangement letter for term loan under education loan schemes issued by SBI Ex.P. 25 90 salary slips including bonus and festival advance are together marked.
b)Defendants' side :
Ex.D.1 Original sale deed
Ex.D.2 NOC issued by Vittalnagar House
Building Co-operative Society dated
26.11.1998
Ex.D.3 Possession certificate ssued by
Vittalnagar House Building Co-operative Society Ex.D. 4 Original Will executed by B.C. Anantharamaiah dated 11.06.2010 Ex.D. 4(a) Signature of B.C. Anantharamaiah on page no. 17 of the original Will Ex.D. 4(b) Signature of DW -1 Ex.D. 4(c) Singaure of one S.Somaiah Ex.D.5 Attested copy of the Will Ex.D.5(a) Envelope Ex.D.6 Certified copy of the Notarial Register (SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.
O.S. No.594/2019 93