Bangalore District Court
Dr.Avinash.J vs ) Smt.Prema Jnaneswar on 4 March, 2022
KABC010003162014
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 4th day of March 2022
PRESENT: Sri. Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.NO.4849/2014
PLAINTIFF DR.AVINASH.J
Aged about 40 years
S/o.late Sri.b.T.Jnaneswar
R/at No.10, Ground Floor
9th Main Road, 5th Block, Jayanagar
Bengaluru -560 041
[By Pleader Sri.H.V.Chandrashekar]
O.S.NO.4849/2014
2
/Vs/
DEFENDANTS 1) SMT.PREMA JNANESWAR
Aged about 64 years
W/o.late Sri.B.T.Jnaneswar
R/at No.10, First Floor
9th Main Road, 5th Block, Jayanagar
Bengaluru -560 041
2) SMT.RESHMA.J
Aged about 42 years
D/o.late Sri.B.T.Jnaneswar
R/at No.10, First Floor
9th Main Road, 5th Block, Jayanagar
Bengaluru -560 041
3) SRI.AMRITH.B.JNANESWAR
Aged about 35 years
S/o.late Sri.B.T.Jnaneswar
R/at No.10, First Floor
9th Main Road, 5th Block, Jayanagar
Bengaluru -560 041
[By Pleader Sri.K.K.Vasanth]
Date of Institution of the suit : 30.06.2014
Nature of the Suit : Partition
Date of commencement of recording
of evidence : 12.07.2019
O.S.NO.4849/2014
3
Date on which the Judgment was
pronounced : 04.03.2022
Year/s Month/s Day/s
Total Duration : 07 08 04
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
Suit is filed by Plaintiff for partition of suit schedule properties claiming 1/4th share therein; permanent injunction restraining Defendants from alienating the suit schedule properties and from interfering with suit schedule properties; and for mesne profits.
2) Facts, as stated in plaint, are that Defendant No.1 is the wife, Plaintiff and Defendant No.3 are the sons, and Defendant No.2 is the daughter of O.S.NO.4849/2014 4 late Sri.B.T.Jnaneswar and they are the members of Hindu joint family.
3) It is stated that Defendant No.1 was a house- wife and she had no independent source of income.
4) It is stated that late Sri.B.T.Jnaneswar was a Government servant and he was the only bread earner of the family.
5) It is stated that late Sri.B.T.Jnaneswar acquired Item No.1 of suit schedule property vide registered Sale Deed dated 25.02.1976 with the financial assistance of his father, late Sri.M.Thimmaiah.
6) It is stated that late Sri.B.T.Jnaneswar acquired Item No.2 of suit schedule property and O.S.NO.4849/2014 5 constructed a building consisting of ground, first and second floor with the assistance of Plaintiff.
7) It is stated that, during the life-time of Sri.B.T.Jnaneswar, Item No.2 was let out to tenants for rent, and after the death of Sri.B.T.Jnaneswar, Defendants have been collecting rent from the tenants and they have never shared the rents with Plaintiff collected from the tenants.
8) It is stated that late Sri.B.T.Jnaneswar purchased Items No.3 and 4 of suit schedule properties being the vacant sites.
9) It is stated that late Sri.B.T.Jnaneswar left Item No.6 viz., Alto Car, which is the property of joint family.
10) It is further stated that, during the life-time of Sri.B.T.Jnaneswar, he was enjoying the suit O.S.NO.4849/2014 6 schedule properties and after his death, Plaintiff and Defendants have succeeded to the suit schedule properties and have been enjoying the same.
11) It is stated that, despite demand for partition, Defendants postponed the partition of suit schedule properties by one or the other pretext, instead, they are contemplating to alienate suit schedule properties.
12) It is stated that Plaintiff is a Dental Surgeon and has been running clinic in suit schedule property for the last 14 years. He is having equal right in suit schedule properties. Hence, prays for decree.
13) Defendants No.1 to 3, in their written statement, state that late Sri.B.T.Jnaneswar purchased Item No.1 of suit schedule property from O.S.NO.4849/2014 7 his own earnings under registered Sale Deed dated 25.02.1976 and constructed ground and first floor residential portion with a garage by leaving huge two porticos for the purpose of parking the vehicles.
14) It is stated that late Sri.B.T.Jnaneswar acquired Item No.2 of suit schedule property, which was purchased by him under registered Sale Deed dated 22.05.1982 from BDA.
15) It is stated that Items No.1 and 2 of suit schedule properties are the self acquired properties of late Sri.B.T.Jnaneswar.
16) It is stated that Sri.B.T.Jnaneswar died on 12.09.2008 leaving behind Plaintiff and Defendants as his legal heirs.
17) It is stated that on 24.09.2008 one Sri.C.M.Prasad, who is the brother-in-law of late O.S.NO.4849/2014 8 Sri.B.T.Jnaneswar, came to the house of Defendants and handed over an envelop, saying that the same was kept in his custody by Sri.B.T.Jnaneswar with an instruction to handover the same to Defendant No.1 after the death of Sri.B.T.Jnaneswar.
18) It is stated that, after performing all the obsequies of Sri.B.T.Jnaneswar, in the presence of Plaintiff and Defendants No.2 and 3 and one Sri.C.J.Kempe Gowda, the envelop was opened by Defendant No.1 and she found therein a handwritten document styling it as 'WILL' dated 14.02.2006 executed by Sri.B.T.Jnaneswar in the presence of Sri.C.M.Prasad and Sri.C.J.Kempe Gowda, who are the attesting witnesses to the Will, appointing one Sri.K.R.Nirmal Kumar as the executor of the Will.
19) It is stated that, by Will, the testator bequeathed Item No.1 of suit schedule property to O.S.NO.4849/2014 9 Defendant No.1 by creating life interest therein and made a further bequest that after the death of Defendant No.1, the same should go to Defendant No.2 and thereafter, to Plaintiff, and in case, Defendant No.1 predeceases him, the same should go to Defendant No.2 and Plaintiff.
20) It is stated that, by Will, the testator bequeathed Item No.2 of suit schedule property to Defendant No.1 by creating life interest and made a further bequest that after the death of Defendant No.1, the same should go to Defendant No.3 and in case, Defendant No.1 predeceases the testator, the same should go to Defendant No.3 absolutely.
21) It is further stated that, in the Will, the testator mentioned that Items No.3 and 4 of suit schedule properties, which were purchased by Defendant No.2 and registered in her name, should go to Defendant No.2 and bequeathed capital gain O.S.NO.4849/2014 10 of 56 Bonds of NABARD worth Rs.5,60,000/- [Item No.5 of suit schedule property] in favour of Defendant No.2 on its maturity.
22) It is stated that Items No.3 and 4 of suit schedule properties are the absolute properties of Defendant No.2, and attesting witnesses to the Will informed that Items No.3 and 4 of suit schedule properties have been mentioned in the Will to avoid any claims by Plaintiff and Defendants No.1 and 3 upon the death of Sri.B.T.Jnaneswar though the same are registered in the name of Defendant No.2.
23) It is stated that, in Items No.3 and 4 of suit schedule properties, neither Plaintiff nor Defendants No.1 and 3 have any right to seek partition.
24) It is stated that Plaintiff, being acquainted with the Will dated 14.02.2006, has suppressed the O.S.NO.4849/2014 11 same while filing the suit by falsely contending that Sri.B.T.Jnaneswar died intestate.
25) It is stated that Plaintiff, being a Dental Surgeon, is permitted to run his Dental Clinic in garage portion and adjoining portion behind the garage. Adjoining portion is also a portico, which is adjoining to main portico. He is also permitted to reside in ground floor portion of Item No.1 of suit schedule property consisting of a hall, two rooms, kitchen and toilet [Counter-claim 'A' schedule property] and same is in permissive possession of Plaintiff.
26) It is stated that Defendants have been using portico portion for parking the car left by Sri.B.T.Jnaneswar and two wheelers. However, Plaintiff, instead of parking his vehicle, has illegally and unauthorizedly converted the same into clinic by closing the entry and caused obstructions to O.S.NO.4849/2014 12 Defendants to park their vehicles in portico portion [Counter-claim 'B' schedule property].
27) It is stated that Defendants have to reach the staircase leading to first floor through counter-claim 'B' schedule property. Despite the meeting held, Plaintiff has not vacated counter claim 'A' and 'B' schedule properties and thereby, he caused obstruction to Defendant No.1 to enjoy Item No.1 of suit schedule property.
28) It is stated that Plaintiff is liable to pay Rs.1,80,000/- per year for his permissive occupation of counter-claim 'A' schedule property and for running his dental clinic in counter-claim 'B' schedule property.
29) Plaintiff, in his rejoinder to the counter-claim of Defendants, states that it is not within his knowledge that Sri.B.T.Jnaneswar executed any Will.
O.S.NO.4849/2014 13 It is stated that, at any point of time, Defendants did not produce the Will and did not read out in his presence.
30) It is stated that Defendant No.2 had no independent income. It is Sri.B.T.Jnaneswar, who purchased Items No.3 and 4 of suit schedule properties in the name of Defendant No.2 from his own earnings.
31) It is stated that Will is not executed as per law and same is forged one. Even if it is assumed that late Sri.B.T.Jnaneswar executed the Will, the same is not valid as late Sri.B.T.Jnaneswar had purchased the suit schedule properties from the ancestral and joint family income.
32) It is stated that, during the life time of Sri.B.T.Jnaneswar, he set-up a clinic in suit schedule premises. It is stated that Defendants cannot claim O.S.NO.4849/2014 14 eviction of Plaintiff from suit schedule premises on the alleged Will dated 14.02.2006. Hence, prays for dismissal of the counter claim.
33) Defendants, in their additional written statement, which has been filed after amending the plaint, state that the testator, by the Will, made a bequest in respect of Item No.5 of suit schedule property in favour of Defendant No.2 and same should go to her. It is further stated that, in the Will, the testator made it clear that after maturity of Item No.5 of suit schedule property, the same may be utilized by Defendant No.2 for construction of her house. It is also stated that Item No.5 of suit schedule property has been utilized by Defendant No.2 after its maturity and same is within the knowledge of Plaintiff.
34) It is stated that Item No.7 of suit schedule property was allotted to late Sri.B.T.Jnaneswar by O.S.NO.4849/2014 15 the Karnataka Power Transmission Corporation Employees Co-Operative Society Ltd., Bengaluru and sale deed was executed in his favour on 15.12.2004. It is stated that late Sri.B.T.Jnaneswar, being the absolute owner in possession of Item No.7 of suit schedule property, gifted the same to Defendant No.3 vide Gift Deed dated 27.11.2006 and put the Defendant No.3 in possession thereof. It is stated that, in pursuance of gift, Defendant No.3 has become the absolute owner in possession of Item No.7 of suit schedule property.
35) It is stated that, as per the wish of Sri.B.T.Jnaneswar, Item No.8 should go to Defendant No.1 after his death and hence, same is not available for partition. Hence, pray for dismissal of the suit and for allowing the counter-claim.
36) Issues that have been framed by this Court are as under :
O.S.NO.4849/2014 16
1) Whether Plaintiff proves that the suit schedule property is the ancestral and joint family property of himself and defendants 1 to 3?
2) Whether Plaintiff further proves that he is in joint possession and enjoyment of the suit schedule property along with defendants?
3) Whether defendants 1 to 3 prove that deceased B.T.Jnaneshwar has executed a WILL deed in favour of 1st defendant dt.14.2.2006?
4) Whether defendants prove that the plaintiff is running a Dental clinic in 'A' schedule property of the written statement as a licensee?
5) Whether the defendants are entitled to the relief of counter-
claim in respect of 'A' & 'B' schedule properties of the written statement as prayed for?
6) Whether the Plaintiff is entitled to decree of partition and separate possession and permanent injunction as prayed for?
7) What order or decree?
Additional Issues framed on 26.03.2019
1) Whether the Plaintiff proves that the suit schedule properties were acquired by his father late Sri.B.T.Jnaneswar with the assistance of Plaintiff's grand father late Sri.M.Thamaiah?
O.S.NO.4849/2014 17
2) Whether the Plaintiff proves that Defendants are collecting rents from Item No.2 of the schedule property?
3) Whether the Plaintiff is entitled for mesne profits?
Additional Issue framed on 25.01.2021
1) Whether Plaintiff also proves that Item No.7 and 8 of suit schedule properties is the joint family properties of Plaintiff and Defendants No.1 to 3?
37) Plaintiff has got examined as PW.1 and got marked Exs.P.1 to P.12 on his behalf. Defendants No.1 to 3 have got examined as DW.1 to DW.3 respectively and one Sri.C.M.Prasad, S/o.Sri.Maruve Gowda has been examined as DW.4 on behalf of Defendants. Exs.D.1 to D.47 have been marked in support of the case of Defendants.
38) Heard learned counsel for Plaintiff and Defendants. Perused the written arguments and reply argument filed by Plaintiff and the documents.
O.S.NO.4849/2014 18
39) My finding on the above Issues are :
Issue No.1 - In Negative Issue No.2 - As per findings Issue No.3 - As per findings Issue No.4 - In Negative Issue No.5 - In Negative Issue No.6 - Partly in the affirmative Additional Issues framed on 26.03.2019 -
Additional Issue No.1 - In Negative Additional Issue No.2- As per findings Additional Issue No.3 - In Negative Additional Issue framed on 25.01.2021 -
Additional Issue No.1 - In Negative Issue No.7 - As per final Order, for the following :
REASONS
40) Issues No.1, 3, additional Issue No.1 framed on 26.03.2019 and additional Issue No.1 framed on 25.01.2021 :
These issues being interrelated are taken together for discussion to avoid the repetition of facts.
O.S.NO.4849/2014 19
41) Suit is being for partition of suit schedule properties claiming 1/4th share therein, contending that Sri.B.T.Jnaneswar, who is the father of Plaintiff and Defendants No.2 and 3 and husband of Defendant No.1, acquired suit schedule properties with the support and financial assistance of his father, Sri.Thimmaiah, who is the grandfather of Plaintiff.
42) Initially, suit has been filed in respect of Item No.1 of suit schedule property. After filing written statement by Defendants, Items No.2 to 6 have been inserted to plaint schedule by way of amendment vide Order dated 04.01.2019. Again by way of amendment, Items No.7 and 8 have been inserted to plaint schedule vide Order dated 30.01.2020.
43) On the other hand, Defendants contend that Items No.1, 2, 5 to 8 were acquired by late O.S.NO.4849/2014 20 Sri.B.T.Jnaneswar. He made a Will dated 14.02.2006, wherein, he created life interest in favour of Defendant No.1 in respect of Items No.1 and 2 of suit schedule property.
44) It is contended that Items No.3 and 4 are the absolute properties of Defendant No.2.
45) It is contended that Item No.5 of suit schedule property is capital gain of 56 Bonds of NABARD worth Rs.5,60,000/- acquired by late Sri.B.T.Jnaneswar. By Will, Item No.5 has been bequeathed to Defendant No.2 and a provision has been made that after its maturity, the same should be utilized by Defendant No.2. It is contended that Defendant No.1 has utilized Item No.5 and there is no dispute as such.
46) It is contended that Item No.6 of suit schedule property is Alto Car, which was acquired O.S.NO.4849/2014 21 by late Sri.B.T.Jnaneswar and same is being used by Defendant No.1.
47) It is further contended that Item No.7 of suit schedule property was acquired by late Sri.B.T.Jnaneswar and during his life-time, the same was gifted to Defendant No.3.
48) It is also contended that Item No.8 of suit schedule property was acquired by late Sri.B.T.Jnaneswar and same stands in his name till now.
49) It is contended that only Items No.6 and 8 are available for partition.
50) Plaintiff has deposed as PW.1 reiterating the facts stated in plaint. Documents produced by Plaintiff are at Exs.P.1 to P.12.
O.S.NO.4849/2014 22
51) Defendants No.1 to 3 have deposed as DW.1 to DW.3. Documents marked on their behalf are at Exs.D.1 to D.47.
52) Item No.7 of suit schedule property - 52.1) Ex.P.1 is Sale Deed dated 15.12.2004 executed by Karnataka Power Transmission Corporation Employees Co-Operative Society Ltd., Bangalore, in favour of Sri.B.T.Jnaneswar in respect of Item No.7 of suit schedule property. Ex.P.1 recites that sale consideration of Rs.2,16,000/- was paid by Sri.B.T.Jnaneswar.
52.2) Ex.P.3 is Cancellation Deed of Previous Deed of Cancellation dated 21.01.2009 executed by Karnataka Power Transmission Corporation Employees Co-Operative Society Ltd., Bangalore, in favour of Sri.Amrith Jnaneswar B, who is Defendant No.3, in respect of Item No.7 of suit schedule O.S.NO.4849/2014 23 property. In Ex.P.3, it is recited that Item No.7 of suit schedule property, which was sold to Sri.B.T.Jnaneswar for consideration, was cancelled by the vendor due to some misconception under Deed of Cancellation dated 16.02.2008. It is further recited that, to reinstate the registered Sale Deed dated 15.12.2004 executed in favour of Sri.B.T.Jnaneswar, Ex.P.3 is being executed in favour of Defendant No.3 as Sri.B.T.Jnaneswar has already gifted Item No.7 to Defendant No.3 under Gift Deed dated 27.11.2006.
52.3) Ex.D.5 is original Gift Deed dated 27.11.2006, which is registered on 29.11.2006, executed by Sri.B.T.Jnaneswar in favour of Defendant No.3 in respect of Item No.7 of suit schedule property out of natural love and affection. Ex.D.5 recites that donor has delivered the physical possession of Item No.7 of suit schedule property and donee has accepted the gift made in his favour.
O.S.NO.4849/2014 24 52.4) Ex.D.38 is House Tax Assessment Register issued by Machohalli Village Panchayat, relating to Item No.7 of suit schedule property. It stands in the name of Defendant No.3.
52.5) Exs.D.39 to D.42 are tax paid receipts for having paid tax to Machohalli Village Panchayat relating to Item No.7 of suit schedule property. They stand in the name of Defendant No.3. 52.6) Exs.D.40 to D.47 are tax paid receipts for having paid tax to Kadabagere Village Panchayat relating to Item No.7 of suit schedule property. They stand in the name of Defendant No.3. 52.7) Ex.D.6 is e-property [Form No.9] relating to Item No.7 of suit schedule property and same stands in the name of Defendant No.3.
O.S.NO.4849/2014 25 52.8) From Exs.P.1, P.3, D.5 and D.6, it is clear that Item No.7 of suit schedule property was purchased by Sri.B.T.Jnaneswar from the Karnataka Power Transmission Corporation Employees Co- Operative Society Ltd., Bangalore, for valuable sale consideration under registered Sale Deed dated 15.12.2014; Sri.B.T.Jnaneswar gifted the same to Defendant No.3 under Gift Deed dated 27.11.2006; later, Sale Deed dated 15.12.2014 executed in favour of Sri.B.T.Jnaneswar was cancelled by the vendor unilaterally due to some misconception under Cancellation Deed dated 16.02.2008; and thereafter, the vendor of Sri.B.T.Jnaneswar again executed Cancellation Deed dated 21.01.2009 cancelling the earlier Cancellation Deed dated 16.02.2008 in favour of Defendant No.3 affirming the Sale Deed executed in favour of Sri.B.T.Jnaneswar, as Sri.B.T.Jnaneswar had already executed Gift Deed in favour of Defendant No.3.
O.S.NO.4849/2014 26 52.9) It may be noticed that a written instrument can be sought to be cancelled as provided in Section 31(1) of the Specific Relief Act, 1963. Unilateral cancellation of the registered instrument is alien to law. Be that as it may. Sri.B.T.Jnaneswar had derived absolute right, title and interest over Item No.7 of suit schedule property under registered Sale Deed after payment of valid sale consideration amount. Defendant No.3 has derived right, title and interest over Item No.7 of suit schedule property under Gift Deed, which was executed by Sri.B.T.Jnaneswar, who had absolute right at the time of gifting Item No.7 in favour of Defendant No.3 and later, in Cancellation Deed at Ex.P.3 cancelling the earlier Cancellation Deed, executed in favour of Defendant No.3, the vendor of Sri.B.T.Jnaneswar affirmed the sale made in favour of Sri.B.T.Jnaneswar and Gift Deed made by Sri.B.T.Jnaneswar in favour of Defendant No.3 O.S.NO.4849/2014 27 and thereby, reiterated the absolute title of Defendant No.3 in Item No.7 of suit schedule property.
53) Item No.8 of suit schedule property - 53.1) Ex.P.4 is Sale Deed dated 28.03.2007 executed by M/s. Telecom Employees Co-Operative Housing Society Ltd., Bangalore, in favour of Sri.B.T.Jnaneswar in respect of Item No.8 of suit schedule for valuable sale consideration. Ex.P.4 recites that sale consideration of Rs.3,93,500/- was paid by Sri.B.T.Jnaneswar.
53.2) From Ex.P.4, it is clear that Item No.8 of suit schedule property was purchased by Sri.B.T.Jnaneswar from its vendor for valuable sale consideration.
O.S.NO.4849/2014 28
54) Item No.3 of suit schedule property - 54.1) Ex.P.2 is Sale Deed dated 24.07.2000 executed by Bharath Housing Co-Operative Society Ltd., in favour of Smt.J.Reshma, who is Defendant No.2, in respect of Item No.3 of suit schedule property. Ex.P.2 recites that sale consideration of Rs.1,13,855/- was paid by Defendant No.2. 54.2) Ex.D.23 is Khatha Certificate dated 01.08.2001 issued by BDA, Bangalore. In Ex.D.23, it is certified that Item No.3 has been registered in the name of Defendant No.2 in the revenue register of the office.
54.3) Exs.D.24 and D.25 are certificate and House Tax Assessment Register issued by BBMP relating to Item No.3 of suit schedule property. They stand in the name of Defendant No.2.
O.S.NO.4849/2014 29 54.4) Exs.D.26 to D.31 are tax paid receipts for having paid tax to Town Municipality, Rajarajeswari Nagar, relating to Item No.3 of suit schedule property. They stand in the name of Defendant No.2.
54.5) Exs.D.32 to D.37 are property tax receipts for having paid tax to BBMP relating to Item No.3 of suit schedule property. They stand in the name of Defendant No.2.
55) Item No.4 of suit schedule property - 55.1) Ex.D.15 is Sale Deed dated 06.11.2004 executed by Sri.G.Venkatesh in favour of Defendant No.2 in respect of Item No.4 of suit schedule property for valuable sale consideration of Rs.2,00,000/- which amount is shown to have been paid by Defendant No.2 in Ex.P.15.
O.S.NO.4849/2014 30 55.2) Ex.D.16, endorsement for having transferred the khatha of Item No.4, goes to show that Item No.4 of suit schedule property got mutated in the name of Defendant No.2 in the records of Town Municipal, Rajarajeswari Nagar.
55.3) Exs.D.17 and D.18 are tax paid receipts for having paid tax in respect of Item No.4 of suit schedule property and same stand in the name of Defendant No.2.
55.4) Ex.D.20 is receipt issued by BBMP for having received fees from Defendant No.2 and Exs.D.21 to D.22 are property tax receipts issued by BBMP for having paid tax in respect of Item No.4 of suit schedule property and they stand in the name of Defendant No.2. 55.5) From Exs.P.2 and D.15, it is clear that Defendant No.2 has purchased Items No.3 and 4 of suit schedule property from Bharath Housing Co-Operative O.S.NO.4849/2014 31 Society Ltd., Bangalore and Sri.G.Venkatesh respectively for a valuable sale consideration.
56) Item No.1 of suit schedule property - 56.1) Ex.P.8 is encumbrance certificate, which goes to show that Sri.B.T.Jnaneswar purchased Item No.1 of suit schedule property from KHB Bangalore vide Document No.2134/75-76, dated 30.03.1976. 56.2) Exs.P.10 and P.11 are Khatha Certificate and Khatha Extract. They go to show that Item No.1 of suit schedule property stands in the name of Defendant No.1.
57) Plaintiff's contention is that suit schedule properties were acquired by Sri.B.T.Jnaneswar with the financial assistance of his grandfather, Sri.M.Thimmaiah. To assail the contention of Plaintiff, it is necessary to have regard to the oral testimony of Plaintiff.
O.S.NO.4849/2014 32 58.1) Oral evidence of PW.1 with respect to Items No.1, 2, 7 and 8 of suit schedule properties -
58.1) PW.1 has deposed that, initially, he had filed suit in respect of Item No.1 of suit schedule property only. It is deposed that, after filing written statement counter-claim by Defendants, he has added other properties in the suit. It is further deposed that he has filed suit, stating that suit schedule properties are the properties of his father. It is also stated that, in a rejoinder to counter-claim, for the first time he stated that his father purchased the suit schedule properties with the financial assistance of his grandfather.
58.2) PW.1 has further deposed that the fact, which he has averred in his rejoinder to counter- claim that his father purchased the suit schedule properties with the financial assistance of his father, has been written wrongly. Similarly, PW.1 has O.S.NO.4849/2014 33 deposed that the fact, which he has averred in his affidavit filed in lieu of examination-in-chief that suit schedule properties were purchased by his father with the assistance of his grandfather, has been written wrongly. He has emphatically deposed that his father never took the financial assistance from his grandfather.
58.3) Apart from the above oral testimony, PW.1 has deposed that Item No.1 of suit schedule property was allotted to his father by Housing Board. It is deposed that, at the time of allotment of Item No.1 of suit schedule property, there existed a house therein. It is further deposed that, after allotting Item No.1 of suit schedule property, his father constructed 1st floor. It is deposed that there exists a garage on North-East corner of Item No.1 of suit schedule property. He has been put a question that there are two porticos adjacent to the garage, O.S.NO.4849/2014 34 for that, he has deposed that only one portico is there. It is also deposed that he resides in ground floor along with his wife, and Defendants reside in first floor of the house. It is deposed that his father constructed the house in Item No.1 of suit schedule property from his own earnings. It is also deposed that he is running a dental clinic in suit schedule property.
58.4) PW.1 has further deposed that BDA executed Sale Deed in favour of his father in respect of Item No.2 of suit schedule property. It is deposed that his father constructed the house in Item No.2 in 1985. It is further deposed that, at that time, he was studying and he had no income of his own. It is also deposed that his father purchased Item No.2 and constructed the house therein from his own earnings.
O.S.NO.4849/2014 35 58.5) Similarly, PW.1, in his cross examination, has deposed that Items No.7 and 8 of suit schedule properties were the self acquired properties of his father and were purchased by his father as per Exs.P.4 and P.1 respectively.
58.6) Oral testimony of PW.1 falsifies the plaint averment that suit schedule properties were purchased by his father with the financial assistance of his grandfather. On the contrary, he has emphatically deposed that Items 1, 2, 7 and 8 were purchased by his father from his own earnings and same were the self acquired properties of his father.
59) Oral testimony of PW.1 with respect to Items No.3 and 4 of suit schedule properties -
O.S.NO.4849/2014 36 59.1) PW.1, in his cross examination has deposed that Defendant No.2 did her education in Bachelor of Science in Computer Science. It is deposed that she was working in Sami Chemicals and Extract. It is further deposed that she was teaching in SJCIT, Chikkaballapura as Lecturer in 2002. He has deposed that he do not remember if Defendant No.2 was teaching in Dayanand College as Lecturer from 2007. It is deposed that, now, Defendant No.2 has been working as Assistant Professor in BNM Institute of Technology. 59.2) He has further deposed that Bharath House Building Co-Operative Society executed Sale Deed in the name of Defendant No.2 in respect of Item No.3 of suit schedule property on 24.07.2000. He has deposed that, in the sale deed, sale consideration is shown to have been paid by Defendant No.2. It is deposed that Defendant No.2 O.S.NO.4849/2014 37 constructed the house in Item No.3 of suit schedule property. He has deposed that he does not know if Defendant constructed the house after obtaining loan from LIC. It is further deposed that he did not help her to construct the house in any manner. Lastly, he has denied the suggestion that if Item No.3 is the self acquired property. He volunteers that his father helped her to purchase the Item No.3 of suit schedule property.
59.3) PW.1 has deposed that Defendant No.2 has purchased Item No.4 of suit schedule property from Soumya Developers on 06.11.2004. It is further deposed that the khatha of Item No.4 of suit schedule property stands in the name of Defendant No.2.
60) In oral testimony of PW.1, it is unequivocally deposed that Items No.3 and 4 have been purchased by Defendant No.2 and that Defendant O.S.NO.4849/2014 38 No.2 has constructed house in Item No.3 of suit schedule property. When PW.1 was suggested that Items No.3 and 4 are the self acquired properties of Defendant No.2, it is deposed that his father helped Defendant No.2 in purchasing Item No.3 of suit schedule property.
61) Plaintiff, in his oral testimony, has clearly deposed that Defendant No.2 did complete her Bachelor of Science in Computer Science in 1993 and initially, she was working in Sami Chemicals and thereafter, she was working as Lecturer in SJCIT College in 2002 and now working as Assistant Professor in BNM Institute of Technology. Be that as it may.
62) Ex.D.7 goes to show that Defendant No.2 completed her Bachelor of Science Degree in Physics, Mathematics and Computer Science in O.S.NO.4849/2014 39 1993. Ex.D.8, Appointment Order dated 18.09.2002, makes it clear that Defendant No.2 was appointed as Lecturer temporarily in SJCIT College. Ex.D.9 makes it clear that she was working in SJCIT College from 23.09.2002 to 01.09.2004. Ex.D.10 further makes it clear that Defendant No.2 was working as Lecturer in Dayananda Sagar College of Engineering from August 2007 to July 2008. Ex.D.11, Appointment Order, makes it clear that Defendant No.2 has been appointed as Senior Lecturer in the Department of Computer Science in B.N.M. Institute of Technology from August 2008.
63) Thus, from the documentary evidence coupled with oral testimony of PW.1, it is abundantly clear that Defendant No.2, after did her Bachelor of Science in Computer Science in 1993, has worked in various institutions in various capacity. In that view, the presumption would O.S.NO.4849/2014 40 naturally arise that Defendant No.2 has been gaining since her completion of Bachelor Degree.
64) It is to be noticed that Item No.3 of suit schedule property was purchased by Defendant No.2 in the year 2000 and similarly, Item No.4 of suit schedule property was purchased by her in the year 2002. Moreover, both Sale Deeds recite that the sale consideration amount was paid by her only. In that circumstance, the only presumption that can be drawn is that Defendant No.2 purchased Items No.3 and 4 of suit schedule property from her own earnings.
65) Plaintiff's contention, in plaint, is that suit schedule properties were purchased by his father from the financial assistance of his grandfather. In his oral testimony, he has departed from the contention taken in the plaint. Further, he has also O.S.NO.4849/2014 41 departed from the version that Items No.3 and 4 of suit schedule property were the self acquired properties of his father. On the contrary, he has deposed that his father helped Defendant No.2 in purchasing Item No.3 of suit schedule property. This is the version that has been asserted by Plaintiff in his cross examination for the first time. He nevertheless pleads such fact in his plaint. To buttress his assertion, he did choose not to produce any documents. In absence of pleadings and evidence, for the first time, in his cross examination, he has voluntarily deposed that his father helped Defendant No.2 in purchasing Item No.3 of suit schedule property. There is no rationale in relying upon such testimony in absence of pleadings as well as corroborative evidence to the said effect. Be that as it may. In the presence of documentary evidence such as Sale Deeds at Exs.P.2 and D.15, which clearly show that O.S.NO.4849/2014 42 Defendant No.2 has purchased Items No.3 and 4 of suit schedule property for valuable sale consideration, there is no reason to hold that Items No.3 and 4 of suit schedule property are the self acquired properties of Plaintiff's father and that Plaintiff's father helped Defendant No.2 in purchasing Item No.3 of suit schedule property.
66) It is hypothetically assumed that Plaintiff's father helped Defendant No.2 in purchasing Item No.3 of suit schedule, there is nothing bar to help the daughter by her father in purchasing the chattels. No such proposition of law has been brought to the notice of the Court that helping the daughter by her father in purchasing the chattels would become the self acquired property of the father.
67) On the contrary, Section 14(1) of the Hindu Succession Act, 1956 makes it clear that any O.S.NO.4849/2014 43 property possessed by a female Hindu, whether acquired before or after the commencement of the Hindu Succession Act, 1956, shall be held by her as full owner thereof and not as a limited owner. That being the state of affairs, no sanctity can be attached to the voluntary statement made by PW.1 in his cross examination that his father helped Defendant No.2 in purchasing Item No.3 of suit schedule property.
68) Will dated 14.02.2006 [Ex.D.1, photo copy of the Will and Ex.D.2, original Will] - 68.1) Defendants have set-up a Will dated 14.02.2006 said to have been executed by Sri.B.T.Jnaneswar. It is contended that Sri.B.T.Jnaneswar executed the Will in the presence of Sri.C.M.Prasad and Sri.C.J.Kempe Gowda, who are the attesting witnesses to the Will, appointing Sri.K.R.Nirmal Kumar as the executor of the Will. It O.S.NO.4849/2014 44 is contended that Will is written by the testator in his own hand and same has been affirmed and admitted by the attesting witnesses that the testator has written the Will in his own hand and signed in their presence in his house on 14.02.2006 and that in proof of execution of the Will by the testator, they have attested the same on 14.02.2006.
68.2) It is contended that, in the Will, the testator has mentioned that Items No.1 and 2 of suit schedule properties were acquired by him. In the Will, the testator has mentioned that he constructed the house in Item No.1 consisting of ground floor and first floor and constructed the building in Item No.2 consisting of ground, first and second floor.
68.3) It is contended that, in the Will, the testator has bequeathed Item No.1 to Defendant O.S.NO.4849/2014 45 No.1, who is the wife of the testator by creating life interest therein and further bequest has been made to the effect that after the death of Defendant No.1, the same shall go to Defendant No.2, who is the daughter of the testator and thereafter to Plaintiff, who is the son of the testator.
68.4) It is further contended that Will further recites that if Defendant No.1 predeceases the testator, the complete first floor and garage with attached room in the ground floor shall go to Plaintiff and the ground floor shall be enjoyed by Defendant No.2 till such time she constructs her own house.
68.5) It is also contended that, in the Will, Item No.2 has been bequeathed to Defendant No.1 by creating the life interest therein and further bequest has been made to the effect that after the O.S.NO.4849/2014 46 death of Defendant No.1, the same shall go to Defendant No.3, who is another son of the testator. 68.6) It is to be noticed that Plaintiff has not spelled out in plaint that his father made the Will dated 14.02.2006. In fact, he, initially, claimed the partition in respect of Item No.1 of suit schedule property only. It is only after filing written statement by Defendants taking the contention of the Will, Plaintiff has filed his rejoinder, contending that the execution of the Will by his father is not within his knowledge and that the Will is not executed as per law and therefore, the same is forged. 68.7) It is further contended in the rejoinder that even assuming that his father executed the Will, the same is not a valid Will since his father purchased the properties from the ancestral income and joint family income.
O.S.NO.4849/2014 47 68.8) Photocopy of the Will dated 14.02.2006 has been marked as Ex.D.1 on behalf of Defendants through PW.1 in his cross examination. Plaintiff, in his cross examination, has admitted that his father has executed the Will; it is in the handwriting of his father, his father has put his signature in it; it has been attested by two attesting witnesses, namely Sri.C.M.Prasad and Sri.Kempe Gowda; and he has no objection to the contents of the Will. Cross examination made to PW.1 regarding the Will is as under :
"ನನನನ ನನನ ತತದದ ಬರದದರನವ ವಲಲನನನ ನನನಯನಲಯದಲಲ ಹನಜರನಪಡಸರನವವದನನನ ನದನನಡರನತದತನನದ. ಸದರ ವಲಲ 2006 ರಲಲ ಆಗರನತತದದ. ಅದನ ನನನ ತತದದಯ ಕದಕಬರಹದಲಲದದ. ವಲಲನನನ ನದನನಡ ಆದ ಮನಲದ ದನವನ ಐಟತ ನತ.2 ರತದ 8 ನದನ ಆಸತಯನನನ ಈ ದನವದಯಲಲ ಸದನರಸದದದನನದ ಎತದರದ ಸರ. ಸದರ ವಲಲನನನ ನನನನ ನದನನಡದದದನನದ ಅದರಲಲ ನನನ ತತದದಯ ಸಹ ಇದದ. ಸದರ ವಲಲಗದ ನನನ ತತದದಯ ಅಕಕನ ಗತಡ ಸ.ಎತ.ಪಪಸನದಲ ರವರನ ಸನಕಕಯನಗ ಸಹ ಮನಡರನತನತರದ ಎತದರದ ಸರ. ನನನ ತತದದಯ ಮತದನತತದನ ಅಕಕನ ಗತಡ ಕದತಪದನಗಗಡರವರನ ಸನಕಕಯನಗ ಸಹ ಮನಡರನತನತರದ ಎತದರದ ಸರ. ನನನ ತನಯಯ ತಮಮ ನಮರಲಲ ಕನಮನರಲ ರವರಗದ ವಲಲನ ವಚನರ ಗದನತತದದ ಎತದರದ ನನಗದ ಗದನತತಲಲ. ಸದರ ವಲಲ ನಲಲ ನಮರಲಲ ಕನಮನರಲ ರವರ ಹದಸರನ ನಮನದಸರನವ ಬಗದಗ ವಲಲನನನ ನದನನಡದ ನತತರ ಗದನತನತಗರನತತದದ. ಸನಕಕಗದ ಕಡತದಲಲರನವ ಸನಕಕಯ ತತದದ ಮನಡದನದರದ ಎನನನವ ವಲಲನ ಜದರನಕಲಕ ಪಪತಯನನನ ತದನನರಸನತತದನದ, ಸನಕಕ ಸದರ ಜದರನಕಲಕ ಪಪತ ತನನ O.S.NO.4849/2014 48 ತತದದ ಮನಡರನವ ವಲಲ ಎತದನ ಹದನಳನತನತರದ. ಸದರ ಜದರನಕಲಕ ಪಪತಯನನನ ಪಪತವನದಯವರನ ಮನಲ ವಲಲನನನ ಹನಜರನಪಡಸನವ ಷರತತನ ಮನಲದ ನನನಯನಲಯದ ಅನನಕನಲಗದನನಸಕರ ನ.ಡ.1 ಎತದನ ಗನರನತಸಲನಯತನ. ನ.ಡ.1 ದನಖಲದ ನನನ ತತದದಯ ಕದಕಬರಹದಲಲದದ. ಅದರಲಲ ನನನ ತತದದಯ ಸಹ ಇದದ ಮತನತ ನನನನ ಮನಲದ ಹದನಳದ ಸನಕಕಗಳ ಸಹ ಇರನತತದದ. ದನವನ ಐಟತ ನತ.3 ನದನ ಆಸತ ನ.ಡ.1 ದನಖಲದಯಲಲ 2 ನದನ ಪಪತವನದಗದ ಸದನರದ ಆಸತ ಎತದನ ಬರದದದನದರದ ಎತದರದ ಸನಳನಳ. ನ.ಡ.1 ರಲಲ ನಮನದಸರನವ ಮನಹತಗಳ ಬಗದಗ ನನನ ತಕರನರನ ಇಲಲ. "
Thus, there is no dispute as to execution of the Will by Sri.B.T.Jnaneswar and contents therein. 68.9) Further, due execution of the Will has been proved by examining one of the attesting witnesses to the Will, namely Sri.C.M.Prasad. Sri.C.M.Prasad has been examined as DW.4 in his house through Court Commissioner. In his examination-in-chief, he has deposed that he knows Plaintiff and Defendants; Defendant No.1 is the wife and Defendants No.2 and 3 and Plaintiff are the children of late Sri.B.T.Jnaneswar; and he knows Sri.B.T.Jnaneswar.
O.S.NO.4849/2014 49 68.10) He has deposed that he is the husband of Smt.B.T.Sarojamma, who is the third sister of Sri.B.T.Jnaneswar; Sri.Kempe Gowda is the husband of Smt.B.T.Sharadamma, who is another sister of Sri.B.T.Jnaneswar.
68.11) He has further deposed that Sri.B.T.Jnaneswar retired as Chief Engineer in KPTCL in the year 2001. It is deposed that he and Sri.C.J.Kempe Gowda used to meet Sri.B.T.Jnaneswar frequently either in his house or in their respective houses during the life time of Sri.B.T.Jnaneswar. It is deposed that Sri.B.T.Jnaneswar was hale and healthy and capable of understanding; he expressed his intention to execute the Will to dispose of the properties exclusively standing in his name.
68.12) It is deposed that Sri.B.T.Jnaneswar made a written Will in his own hand in the presence O.S.NO.4849/2014 50 of himself and Sri.Kempe Gowda on 14.02.2006 bequeathing the properties standing in his name in favour of his wife and children; and he signed the handwritten Will in the presence of himself and Sri.Kempe Gowda.
68.13) It is deposed that he has attested the Will as Witness No.1 and Sri.Kempe Gowda also attested the Will as Witness No.2. Sri.B.T. Jnaneswar kept the Will in an envelop and handed over the same to him with an instruction to handover the said envelop to Defendant No.1 after his demise. 68.14) It is also deposed that after the death of Sri.B.T.Jnaneswar and after performing his obsequies, he went to the house of Plaintiff and Defendants along with Sri.Kempe Gowda on 24.09.2008 and handed over the envelop containing the Will to Defendant No.1, who opened the envelop in the presence of her children and O.S.NO.4849/2014 51 found the written document styling it as a Will executed by her husband and contents of the Will were made known to Plaintiff and Defendants. 68.15) In his examination-in-chief, he is shown the Will wherein he identifies his signature and signature of Sri.Kempe Gowda, which are marked as Ex.D.2(d) and D.2(e).
68.16) In his cross examination, he has emphatically deposed that what he has written in his examination-in-chief is true and same has been prepared by him with the assistance of the advocate. A few questions that has been put to him in his cross examination to the effect that whether he can say what type of document Ex.D.2 is; in respect of which suit he deposes today; and in what circumstance he signed Ex.D.2. For the said questions, he has deposed that he is unable to say what type of document Ex.D.2 is; he does not know O.S.NO.4849/2014 52 in respect of which suit he deposes today; and in what circumstance, he signed Ex.D.2. 68.17) If overall oral testimony of DW.4 is taken into consideration, it is crystal clear that DW.4 has deposed about the relationship of Plaintiff and Defendants with Sri.B.T.Jnaneswar; relationship of himself and another attesting witness with Sri.B.T.Jnaneswar; relationship of executor named in the Will, namely Sri.K.R.Nirmal Kumar with Sri.B.T.Jnaneswar; execution of the Will by Sri.B.T.Jnaneswar in his own hand in respect of self acquired property of Sri.B.T.Jnaneswar in the presence of himself, another attesting witness and executor named in the Will; Signature made by the testator in his presence and in the presence of another witness; signatures made by him and another witness as attesting witnesses to the Will; identification of his signature and the signature of another witness in the Will; and contents of the Will.
O.S.NO.4849/2014 53 68.18) These aspects have not been controverted in the cross examination of DW.4. DW.4 has affirmed in his cross examination as to what he has stated in his examination-in-chief. Merely because he deposes that he is unable to say what type of document Ex.D.2 is and that he cannot say in what circumstance he signed Ex.D.2, it cannot be said that Will executed by Sri.B.T.Jnaneswar is not duly proved. Affidavit filed in lieu of examination-in-chief makes it clear that, at the time of giving evidence, DW.4 was aged about 95 years. As he was unable to come over to the Court, he was examined through Court Commissioner in his house. In the verge of retirement of his life, DW.4 deposes about the execution of the Will by Sri.B.T.Jnaneswar. This has to be taken into consideration. Of course, in his cross examination, he has deposed that he cannot say what type of document Ex.D.2 is. However, he O.S.NO.4849/2014 54 identifies his signature and the signature of the another witness in Ex.D.2. In that eventuality, the whole testimony of DW.4 cannot be brushed aside merely because he is unable to say what type of document Ex.D2 is. More important is that DW.4 never denies the execution of Will. Moreover, DW.4 is the brother-in-law of Plaintiff's father. No enmity has been attributed to DW.4 in his cross examination by Plaintiff. In that circumstance, in my humble view, the statements that 'I am unable to say what document Ex.D.2 is and in what circumstance I signed Ex.D.2', do not come in the way of relying upon the testimony of DW.4. 68.19) Section 68 of the Indian Evidence Act, 1872 states that if a document is required by law to be attested, the same shall not be used as evidence until one of attesting witness is called for the purpose of proving its execution. In the instant O.S.NO.4849/2014 55 case, such condition has been complied with by Defendants by examining the attesting witness to the Will.
68.20) Section 71 of the Indian Evidence Act, 1872 states that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. 68.21) It is hypothetically assumed that DW.4 does not recollect the execution of the Will, the execution of the Will by Sri.B.T.Jnaneswar and its contents have been unequivocally admitted by Plaintiff in his cross examination. More important is that recitals made in the Will in respect of bequest made in respect of Item No.1 of suit schedule property are very much relied upon by Plaintiff by cross examining Defendants.
O.S.NO.4849/2014 56 68.22) In the cross examination of DW.1, she has been put a specific question that her husband executed the Will in respect of Items No.1 to 5 of suit schedule properties, stating as to whom the Items No.1 to 5 shall go.
68.23) Suggestions put to DW.1 in her cross examination are extracted as under :
" .......ನನನ ಗತಡ ದನವನ ಐಟತ ನತ.1 ರತದ 5 ನದನ ಆಸತಗಳನ ಯನರನ ಯನರಗದ ಸದನರಬದನಕದತದನ ತನವವ ಮಮತರನಗನವ ಪಪವರದಲಲ ಮರಣಶನಸನ ಮನಡ ಇಟಟದನದರದ ಎತದರದ ಸರ. ಆ ವಲಲ ಪಪಕನರ ದನವನ ಆಸತಯನನನ ಭನಗ ಮನಡಲನ ತದನತದರದ ಇಲಲ ಎತದರದ ಸನಕಕ ವಲಲ ಪಪಕನರ ದನವನ ಆಸತ ನನಗದ ಬರಬದನಕನಗನತತದದ ಎತದನ ಹದನಳನತನತರದ. ವಲಲ ನಲಲ ದನವನ ಐಟತ ನತ.1 ಮತನತ 2 ನದನ ಆಸತಗಳಗದ ಮನತಪ ಸತಬತಧಸ ನನಗದ life time interest ನನಡದನದರದ ಎತದರದ ಸರ. ನನಗದ ಸದರ ಐಟತ ನತಬರಲ 1 ಮತನತ 2 ನದನ ಆಸತಗಳನನನ ಮನರಲನ ಹಕಕಲಲ ಎತದರದ ಸರ. ........ ವಲಲ ನಲಲ ನನನ ಮಗಳನ ನದಲಮಹಡಯ ಒತದನ ಭನಗದಲಲ ವನಸಸಕದನತಡರಬದನಕದತದನ ಬರದದದನದರದ ಎತದರದ ಸರ. ನನನ ಮಗಳನ ಐಟತ ನತಬರಲ 5 ನದನ ಆಸತಯನನನ ಉಪಯನಗಸಕದನತಡನ ಐಟತ ನತಬರಲ 3 ರಲಲ ಮನದ ಕಟಟಕದನತಡನ ವನಸಸಬದನಕದತದನ ವಲಲ ನಲಲ ಬರದದದನದರದ ಎತದರದ ಸರ. .........ವಲಲ ನಲಲ 2 ಮತನತ 3 ನದನ ಪಪತವನದಯರನ ದನವನ ಐಟತ ನತಬರಲ 1 ರಲಲ ವನಸ ಮನಡಲನ ಹಕಕನನನ ನನಡರನವವದಲಲ ಎತದರದ ಸರಯಲಲ. "
O.S.NO.4849/2014 57 68.24) Similar suggestions put to DW.2 and DW.3 in their cross examination by Plaintiff are extracted as under :
" ನನನ ತತದದ ಬರದದಟಟರನವ ವಲಲಗದ ನನನ ಸತಪಪಣರ ಸಮಮತ ಇದದ. ವಲಲನನನ ಈಗನಗಲದನ ನ.ಡ.2 ಎತದನ ಗನರನತಸಲನಗದದ. ಸದರ ವಲಲನಲಲ ಡಸದತಬರಲ 2015 ಅಥವನ ನನನನ ಮನದ ಕಟನಟವಲಲಯವರದಗದ ದನವನ ಐಟತ ನತಬರಲ 1 ನದನ ಆಸತಯಲಲ ಉಳದನಕದನತಡನ ಬರಬದನಕದತದನ ಬರದದದನದರದ ಎತದರದ ಇರಬಹನದನ. ಸನಕಕ ಮನತದನವರದದನ ಸದರ ಷರತನತ ನನನ ತನಯ ನನನ ತತದದಗತತ ಮದಲನ ಮರಣಸದರದ ಮನತಪ ಅನನಯವನಗನತತದದ ಎತದನ ಹದನಳನತನತರದ. ವಲಲನಲಲ ಹದನಳರನವ ಸತಗತಗದ ವರನದದವನಗ ನನನನ ದನವನ ಐಟತ ನತಬರಲ 1 ರಲಲ ವನಸಸಕದನತಡದದದನನದ ಎತದರದ ಸರಯಲಲ. ವಲಲನಲಲ ನನನ ತತದದಯವರ ಹದಸರನಲಲರನವ ಬನತಡಲನ ಹಣವನನನ ಉಪಯನನಗಸಕದನತಡನ ನನನನ ಮನದ ಕಟಟಬಹನದದತದನ ಹದನಳದನದರದ ಎತದರದ ನನಗದ ಮನಹತ ಇಲಲ. ನನನನ ನನನ ತತದದಯ ಬನತಡಲನ ಹಣವನನನ ಉಪಯನನಗಸಕದನತಡರನವವದಲಲ. ವಲಲನ ಪಪಕನರ ದನವನ ಐಟತ ನತಬರಲ 1 ರಲಲ ನನಗದ ವನಸ ಮನಡನವ ಹಕನಕ ಡಸದತಬರಲ 2015 ರಲದಲ ಕದನನದಗದನತಡದದ ಎತದರದ ಸರಯಲಲ. ದನವನ ಐಟತ ನತಬರಲ 1 ರಲಲ ನನನ ತನಯಗದ ಜನವತನವಧಯ ಹಕಕನನನ ಮನತಪ ಬರದದದನದರದ ಎತದರದ ಸರ. ಸನಕಕ ಮನತದನವರದದನ ನನನ ತನಯಯ ನತತರ ದನವನ ಐಟತ ನತಬರಲ 1 ನದನ ಆಸತ ನನಗದ ಬರಬದನಕದತದನ ಬರದದದನದರದ ಎತದನ ಹದನಳನತನತರದ. ಆ ರನತ ವಲಲನಲಲ ಬರದದರನವವದಲಲ ಎತದರದ ಸರಯಲಲ. "
"......ನನನ ತತದದ ದನವನ ಐಟತ ನತಬರಲ 1 ರತದ 6 ನದನ ಆಸತಗಳನ ಯನರನ ಯನರಗದ ಸದನರಬದನಕದತದನ ವಲಲನಲಲ ನಮನದಸದನದರದ ಎತದರದ ಸರ.
..................
................. ವಲಲನ ಪಪಕನರ 2 ನದನ ಪಪತವನದಗದ ದನವನ ಐಟತ ನತಬರಲ 1 ನದನ ಆಸತಯಲಲ ಡಸದತಬರಲ 2015 ರವರದಗದ ಮನತಪ ವನಸಸಲನ ಅಧಕನರ ಇದದ ಎತದರದ ಸರಯಲಲ. ವಲಲನಲಲ ದನವನ ಐಟತ ನತಬರಲ 5 ರ O.S.NO.4849/2014 58 ಹಣವನನನ ಉಪಯನನಗಸಕದನತಡನ ದನವನ ಐಟತ ನತಬರಲ 3 ರಲಲ 2 ನದನ ಪಪತವನದ ಡಸದತಬರಲ 2015 ರದನಳಗನಗ ಮನದ ಕಟಟಕದನತಡನ ವನಸಸಬದನಕದತದನ ನಮನದಸದನದರದ ಎತದರದ ಸರಯಲಲ. ...... 2 ನದನ ಪಪತವನದ ತಮಗದ ಹತಚಕದಯನದ ಐಟತ ನತಬರಲ 3 ನದನ ಆಸತಯಲಲ ಮನದ ಕಟಟಕದನತಡರನ ಕನಡ ವಲಲನಲಲ ಹದನಳರನವ ಸತಗತಗಳಗದ ವರನದದವನಗ ಇನನನ ದನವನ ಐಟತ ನತಬರಲ 1 ರಲಲ ವನಸಸಕದನತಡನ ಬರನತತದನದರದ ಎತದರದ ಸರಯಲಲ. ನನನ ತತದದ ಬರದದಟಟರನವ ವಲಲನನನ ನನವವ ಯನರನ ಪಪಶನಸರನವವದಲಲ. ನನನ ತತದದ ವಲಲನಲಲ ಹದನಳದ ಪಪಕನರ ವಭನಗ ಮನಡಲನ ತಕರನರನ ಇಲಲ ಎತದರದ ಸನಕಕ ವಭನಗ ಮನಡನವ ಪಪಶದನಯನ ಇಲಲ ಎತದನ ಹದನಳನತನತರದ. ನನನ ತತದದ ವಲಲನಲಲ ವನದ ದನವನ ಐಟತ ನತಬರಲ 1 ರಲಲ ವನಸ ಮನಡಕದನತಡರಲನ ಮತನತ ಕಲನಕಲನನನ ನಡದಸಲನ ನಮನದಸದನದರದ ಎತದರದ ಸನಕಕ ಒತದನ ನರರಷಟ ಸಮಯದವದರದಗದ ಮನತಪ ನಮನದಸದನದರದ ಎತದನ ಹದನಳನತನತರದ. ವಲಲನಲಲ ಸಮಯವನನನ ನಮನದಸರನವವದಲಲ. ನನನ ತನಯಯ ನತತರ ದನವನ ಐಟತ ನತಬರಲ 1 ನದನ ಆಸತ ಯನರಗದ ಸದನರಬದನಕದತದನ ವಲಲನಲಲ ಸಸಷಟವನಗ ನಮನದಸದನದರದ ಎತದರದ ಸನಕಕ ನನನ ಅಕಕ 2 ನದನ ಪಪತವನದಗದ ಸದನರಬದನಕದತದನ ನಮನದಸದನದರದ ಎತದನ ಹದನಳನತನತರದ.
.............
................ನನನನ ಹನಗನ 2 ನದನ ಪಪತವನದ ದನವನ ಐಟತ ನತಬರಲ 1 ನದನ ಆಸತಯಲಲ ಅಕಪಮವನಗ ವನಸಸಕದನತಡದದದನವದ ಎತದರದ ಸರಯಲಲ. ನನನ ತತದದಯವರನ ಬರದದರನವ ವಲಲನ ಪಪಕನರ ವನದಗದ ದನವನ ಐಟತ ನತಬರಲ 1 ರಲಲ ವನಸಮನಡಕದನತಡರಲನ ಮತನತ ಕಲನಕಲ ನಡದಸಲನ ಅಧಕನರ ಇದದ ಎತದರದ ಸರಯಲಲ. ವನದಗದ ತದನತದರದ ಕದನಡನವ ಉದದದನಶದತದ ಸನಳನಳ ಸನಕಕ ಹದನಳನತತದದದನನದ ಎತದರದ ಸರಯಲಲ. ವಲಲನ ಪಪಕನರ ದನವನ ಐಟತ ನತಬರಲ 1 ನದನ ಆಸತ ನನನ ತನಯಯ ಮರಣದ ನತತರ ವನದಗದ ಸದನರತಕಕದನದ ಎತದರದ ಸರಯಲಲ."
68.25) From the above oral testimony of DW.1 to DW.3, it is clear that, apart from admitting the O.S.NO.4849/2014 59 Will and its contents in its entirety by Plaintiff in his cross examination, the same has been suggested to Defendants in their cross examination affirming the execution of the Will and its contents. 68.26) Thus, execution of the Will by Sri.B.T.Jnaneswar has been proved by examining the attesting witness as contemplated in Section 68 of the Indian Evidence Act, 1872 and also by other evidence as envisaged in Section 71 of the Indian Evidence Act, 1872.
68.27) It is to be noticed that Ex.D.2 is 'holograph Will'. It has been written by the testator in his own hand. PW.1 has admitted in his cross examination that Will at Ex.D.2 is in the handwriting of his father and that his father and attesting witnesses have signed in the Will.
O.S.NO.4849/2014 60 68.28) In Joyce Primrose Prestor Nee Vas vs. Vera Marie Vas Ms, [LAWS (SC)-1996-4-50, decided on 12.04.1996], the Hon'ble Supreme Court was pleased to hold that in the case of holograph Wills, the presumption is all the more - a greater presumption [para-15].
68.29) Similarly, in B. Manjunath Prabhu (D) by Lrs vs. C.G.Srinivas and others, [AIR 2005 Karnataka 136], the Hon'ble High Court of Karnataka was pleased to hold that presumption in case of holograph Will is greater [para-12]. 68.30) Viewed from any angle, Will at Ex.D.2 stands alone free from all that suspicious circumstances. In that view, it can be fairly said that Will at Ex.D.2 has been duly proved by Defendants.
69) Contention that has been raised is that if Items No.3 and 4 of suit schedule property were O.S.NO.4849/2014 61 purchased by Defendant No.2, Plaintiff's father would not have mentioned the said Items in the Will at Ex.D.2.
70) A meaningful reading of the Will makes it clear that Sri.B.T.Jnaneswar has mentioned in the Will that Items No.1 and 2 of suit schedule property have been acquired by him and made a bequest in respect of Items No.1 and 2 in favour of Defendants and Plaintiff subject to terms mentioned therein to avoid unnecessary litigation amongst the heirs after his demise.
71) After stating about Items No.1 and 2 and after making bequest in respect of the said Items, Sri.B.T.Jnaneswar has mentioned Items No.3 and 4, stating that they have been allotted to his daughter [Defendant No.2] and Sale Deeds have been registered in her name and same should go to her. Sri.B.T.Jnaneswar nevertheless states in the Will O.S.NO.4849/2014 62 that Items No.3 and 4 of suit schedule property were acquired by him and that he makes a bequest in favour of his daughter. If the Items No.3 and 4 were in the name of late Sri.B.T.Jnaneswar, he could have made a bequest in favour of Defendant No.2. This makes it clear that Sri.B.T.Jnaneswar was aware that he was not the owner of Items No.3 and 4 and therefore, he does not make any bequest in respect of Items No. 3 and 4. Instead, he just mentions in the Will that Items No.3 and 4 have been allotted to his daughter and sale deeds have been registered in her favour. Had he purchased Items No.3 and 4, certainly, he would have mentioned in the Will like the one mentioned in respect of Items No.1 and 2 of suit schedule property. If it is hypothetically assumed that Items No.3 and 4 were acquired by Sri.B.T.Jnaneswar, in that case also, there would be no impediment for him to bequest Items No.3 and 4 of suit schedule property as per his wish. Be that O.S.NO.4849/2014 63 as it may. In the presence of documentary evidence coupled with oral testimony that Items No.3 and 4 have been purchased by Defendant No.2, there is no scope to draw an inference that Items No.3 and 4 are self acquired properties of Sri.B.T.Jnaneswar merely because the same have been mentioned in the Will.
72) Thus, from the above conspectus of the evidence, it is crystal clear that Items No.1, 2, 5 to 8 were acquired by late Sri.B.T.Jnaneswar; during the life-time of Sri.B.T.Jnaneswar, he gifted Item No.7 of suit schedule property to Defendant No.3, which has been affirmed by the vendor of Sri.B.T.Jnaneswar in the Cancellation Deed executed in favour of Defendant No.2 cancelling the earlier Cancellation Deed made for cancellation of Sale Deed executed in favour of Sri.B.T.Jnaneswar in respect of Item No.7 of suit schedule property;
O.S.NO.4849/2014 64 Items No.3 and 5 are the absolute and self acquired properties of Defendant No.2; and Will at Ex.D.2 has been duly proved by Defendants beyond all suspicious circumstances. In that view, I answer the above issues accordingly.
73) Issues No.2, 4, 5, 6 and additional Issues No.2 and 3 framed on 26.03.2019 :
It is to be noticed that it has been proved that Items No.3 and 4 of the suit schedule property are the absolute properties of Defendant No.2. Item No.7 has been proved to be gifted to Defendant No.3, who has derived absolute right, title and interest over Item No.7 of suit schedule property. In these properties, Plaintiff has no semblance of right, title and interest. Hence, question of claiming joint possession and enjoyment by Plaintiff and question of seeking partition in respect of Items No.3, 4 and 7 of suit schedule properties do not arise.
O.S.NO.4849/2014 65
74) Rest of the Items are Items No.1, 2, 5, 6 and
8. These Items have been proved to be self acquired properties of late Sri.B.T.Jnaneswar. Items No.6 and 8 are not mentioned in the Will. In respect of Items No.1, 2 and 5, bequest is made in the Will. Relevant recitals in the Will in respect of Items No.1 and 2 read as under :
" 1. I have acquired property bearing No.10, presently situated on 9th Main Road, 5th Block, Jayanagar, Bangalore - 41 measuring East to West 65' and North to South 40' and bounded as follows .
East by : House No.13
West by : Public road
North by : House No.11
South by : House No.9
wherein I have constructed a building measuring about 25 squares inclusive of ground and First floor.
2. I have acquired property bearing No.191, presently situated in W.C.R II Stage, Bangalore - 86, measuring East to West 80' and North to South 50' and bounded as follows .
East by : 30 ft service road West by : Site No.212 and 213 North by : Site No.192 South by : Site No.190 O.S.NO.4849/2014 66
wherein I have constructed a building measuring about 60 squares inclusive of ground, First and second floor.
I have got the following heirs who are entitled to succeed to my estate after my lifetime.
1. Smt.Prema Jnaneswawar, my wife aged about 55 years.
2. Chi.Rehma.J, my daughter aged about 33 years.
3. Chi.Dr.Avinash.J, my first son aged about 32 years.
4. Chi.Amrith Jnaneswar, my second son aged about 27 years.
Keeping in view the possible discussions in my family and the possible dispute that my arise relating to the inheritance of my above properties after my life time and to save the estate from unnecessary litigation amongst my heirs, I hereby device and bequeath my above properties in the following manner.
1. I bequeath to my wife Prema JNANESWAR my house property bearing No.10, situated on 9th Main road, 5th Block, Jayanagar, Bangalore-
41. She has got a life interest in the said property to reside in the same or let out for rent till her lifetime and after her death it should go to my daughter Chi.Reshma.J and there after to my son Dr.Avinash.J absolutely as detailed below. If my wife were to predecease me, the said property I device and O.S.NO.4849/2014 67 bequeath to my daughter Chi.Rehma.J and my son Dr.Avinash.J absolutely as detailed below.
The complete first floor and garage with attached room in the ground floor where a Dental clinic is being run shall go to Dr.Avinash.J absolutely. The ground floor consisting of verandha, Hall, Two bed rooms, kitchen, Bath room and W.C shall be enjoyed by daughter Chi.J.Rshma temporarily after the demise of my wife till such time she construct her own house. She must build the house before December 2015. The ground floor built at site No.10, 9th Main Road, 5th Block, Jayanagar, Bangalore-41, in possession with Chi.Reshma.J shall be handed over to her brother Dr.Avinash.J after December 2015 OR after she constructs her house which ever is earlier.
2. I bequeath to my wife Prema Jnaneswar my property bearing No.191, situated in W.C.R II Stage, Bangalore-
86. She has got a life interest in the above property to reside int hes ame or let out for rent till her life time and after her death it should go to my son Chi.Amrith Jnanswar absolutely. If my wife were to predecease me, the said property I devise and bequeath to my son chi.Amrith Jnaneswar absolutely. ......................"
75) Plaintiff contends that only life interest has been created in favour of Defendant No.1 in respect O.S.NO.4849/2014 68 of Item No.1 of suit schedule property. It is contended that it is only Plaintiff, who is entitled to Item No.1 absolutely.
76) A meaningful reading of the Will makes it clear that, in the first part, testator has created life interest in favour of Defendant No.1 in respect of Item No.1 of suit schedule property. As per the bequest, Defendant No.1 is having right to reside in Item No.1 and to lease out for rent till her life-time. He has made further bequest that after the demise of Defendant No.1, Item No.1 shall go to Defendant No.2 and thereafter to Plaintiff absolutely.
77) Second limb of the Will goes on to say that If Defendant No. 1 predeceases the testator, the first floor and garage with attached room in the ground floor where a dental clinic is being run shall go to Plaintiff absolutely. The ground floor consisting of veranda, hall, two bed rooms, kitchen, bath room O.S.NO.4849/2014 69 and WC shall be enjoyed by Defendant No.2 temporarily after the demise of Defendant No.1 till such time she constructs her own house. Will further recites that Defendant No.2 shall construct her own house before December 2015 and the ground floor in possession of Defendant No.2 shall be handed over to Plaintiff after December 2015 or after she constructs her house whichever is earlier.
78) In the instant case, testator predeceased Defendant No.1. Hence, second limb of the Will becomes redundant. If Defendant No.1 predeceases the testator, then only the second limb of the will could be pressed into service. As the testator predeceased Defendant No.1, the question of enforcing the second limb of the Will in respect of Item No.1 of suit schedule property does not arise.
79) Thus, first part of the Will in respect of the bequest made in respect of Item No.1 makes it O.S.NO.4849/2014 70 abundantly clear that Defendant No.1 has life interest in Item No.1 of suit schedule property and she has right to reside and to lease out the same for rent during her life-time. After her death, Item No.1 shall go to Defendant No.2 and thereafter to Plaintiff absolutely. In that view, during the life time of Defendants No.1 and 2, Plaintiff has no right to claim absolute right in Item No.1 of suit schedule property and same is not available for partition between Plaintiff and Defendants.
80) In the Will, testator has created life interest in favour of Defendant No.1 in respect of Item No.2 of suit schedule property. As per the bequest, she is having right to reside in Item No.2 and to lease out the same for rent till her life-time. Further bequest made is that after the demise of Defendant No.1, the same shall go to Defendant No.3 absolutely.
O.S.NO.4849/2014 71 Thus, it is clear that Item No.2 of suit schedule property is also not available for partition.
81) Item No.5 is capital gain of 56 bonds of NABARD worth Rs.5,60,000/- in respect of which the testator has made a bequest in favour of Defendant No.2, stating that the same may be used by her for construction of her house. Hence, question of partitioning the said amount does not arise at all.
82) Item No.6 viz., Alto Car left by Sri.B.T.Jnaneswar has been used by Defendant No.1 as averred by Defendants. In respect of Item No.6, Sri.B.T.Jnaneswar has not made any provision. Hence, the same is available for partition, in which, Plaintiff is entitled to 1/4th share.
83) Item No.8 of suit schedule property is residential site, which is the only immovable O.S.NO.4849/2014 72 property available for partition in respect of which no devise has been made by late Sri.B.T.Jnaneswar. In Item No.8, Plaintiff is entitled to 1/4 th share being the class I heir of late Sri.B.T.Jnaneswar.
84) Plaintiff contends that Defendants are collecting rent from Item No.2 of suit schedule property without giving him share and therefore, he is entitled to mesne profits.
85) Will makes it clear that testator has created life interest in favour of Defendant No.1 in respect of Item No.2 of suit schedule property to reside and to lease out the same for rent during her life-time and further bequest is made to the effect that after the death of Defendant No.1, the same shall go to Defendant No.3. That being the state of affairs, there is no reason to claim mense profits from Defendants by Plaintiff.
O.S.NO.4849/2014 73
86) Defendants, in their counter-claim, contend that Defendant No.1 has got absolute right to enjoy Items No.1 and 2 of suit schedule properties during her life-time and she has permitted Plaintiff to reside in the ground floor portion of Item No.1 of suit schedule property and to run dental clinic in the garage and the adjoining portico, which has been converted into part of clinic.
87) It is contended that Plaintiff has caused nuisance and is interfering with and causing obstruction to Defendants for their ingress and egress to first floor portion and for parking their vehicles in the portico portion and therefore, it is just and necessary to evict him and to restrain him by way of permanent injunction.
88) Will goes to show that, during the life-time of the testator itself Plaintiff has been running dental clinic in garage with attached room in the ground O.S.NO.4849/2014 74 floor. Thus, it would make it clear that Defendant No.1 has not put Plaintiff in possession of garage with attached room in the ground floor of Item No.1 of suit schedule property to run a dental clinic.
89) PW.1, in his cross examination by Defendants, has specifically deposed that the dental clinic was got constructed under the supervision of his father. He has further deposed that even after his marriage, he was residing with Defendants in the first floor of Item No.1 of suit schedule property. He has deposed that, as ground floor was vacant, in the year 2012, he came down to ground floor and started residing there. He has deposed that he told his mother that he would reside in ground floor and she agreed for that. Be that as it may.
90) Plaintiff has been running his dental clinic in the garage with attached room in the ground floor O.S.NO.4849/2014 75 of Item No.1 of suit schedule property during the life-time of his father and now, residing in ground floor. Similarly, Defendants are residing in first floor of Item No.1 of suit schedule property.
91) Question that looms the matter is that on being creation of life interest in Item No.1 of suit schedule property by Will in favour of Defendant No.1, does she entitle to evict Plaintiff from Item No.1 of suit schedule property?
92) Defendants' contention is that, in view of creating life interest in favour of Defendant No.1 in respect of Item No.1 of suit schedule property, she has become the absolute owner of Item No.1 of suit schedule property as contemplated under Section 14(1) of the Hindu Succession Act, 1956 and therefore, she is entitled to evict Plaintiff from Item No.1 of suit schedule property. In support of their O.S.NO.4849/2014 76 contention, they have placed reliance on the following judgments :
(a) Vaddeboyina Tulasamma and others vs. Vaddeboyina Sesha Reddi (dead) by Lrs., [AIR 1977 SC 1944];
(b) Jaswant Kaur vs. Major Harpal Singh, [(1989) 3 SCC 572];
(c) Gullapalli Krishna Das vs. Vishumolakala Venkayya and Others, [AIR 1978 SC 361;
(d) Jupudy Pardha Sarathy vs. Pentapati Ram Krishna and others, [Civil Appeal No.375/2007, Supreme Court of India, decided 06.11.2015]
(e) K.Doddarangareddy vs. K.Ushamma @ Hushamma, [RSA No.7254/2013, dated 29.09.2020];
(f) Lingamma vs Basavaraju, [ILR 1988(1) Kar 433]; and
(g) C.Masilamani Mudaliar and Others vs Idol of Sri Swaminathaswami Swaminathaswami Thirukoil and Others, [(1996) 8 SCC 525].
93) In Vaddeboyina Tulasamma case (supra), the Hon'ble Supreme Court was pleased to hold that a Hindu female acquires property under compromise in O.S.NO.4849/2014 77 lieu of satisfaction of her right of maintenance, even if compromise prescribing limited interest, still Section 14(1) of the Hindu Succession Act, 1956 applies and not Section 14(2).
94) The Hon'ble Supreme Court, in Jaswant Kaur case (supra), was pleased to hold thus :
"3. ...it is now settled law that if a female Hindu acquires property under a written instrument or a decree of the court and where such acquisition is not traceable to any antecedent right then sub-section (2) of Section 14 alone would be attracted and where an antecedent right is traceable, a document in the nature of will is of no consequence and the case will be covered by by provisions contained in Section 14 sub-section (1). ...."
95) In Gullapalli Krishna Das case (supra), the Hon'ble Supreme Court was pleased to hold that where a widow was placed in possession of certain joint family property in lieu of her right to maintenance, her right to the property in question O.S.NO.4849/2014 78 became enlarged into an absolute estate under Section 14(1).
96) In Jupudy Pardha Sarathy case (supra), the Hon'ble Supreme Court was pleased to hold thus :
"(4) Sub-section(2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-
existing rights. In such cases a rstricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the females limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus, where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite O.S.NO.4849/2014 79 any retrictions placed on the powers of the transferee.
(5) The use of express terms like property acquired by a female Hindu at a partition, or in lieu of maintenance, or arrears of maintenance, etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of sub-section (2)."
97) The Hon'ble High Court of Karnataka, in K.Ushamma @ Hushamma case(supra), was pleased to observe that on plain reading of both the sections, it is evident that when a specific property is allotted to woman in lieu of claim for maintenance, such allotment would be satisfaction of her pre-existing right and where such properties are allotted to her under a instrument or decree prescribed restricted estate for her property then it will be governed by Section 14(1) of the Hindu Succession Act and Section 14(2) has no application.
O.S.NO.4849/2014 80
98) In Lingamma's case (supra), the Hon'ble High Court of Karnataka, having regard to the facts of the case, was pleased to hold that Defendant No.1 becomes the absolute owner of the suit properties by virtue of the gift Ex.D.9 executed by Honnamma in her favour and the declaration sought by the plaintiff cannot be granted.
99) In case of C.Masilamani Mudaliar (supra), the Hon'ble Supreme Court was pleased to hold that the property given under the Will must be construed to have been acquired by the legatee under the Will in lieu of right to maintenance.
100) On the contrary, Plaintiff has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Mr.Ranvir Dewan vs. Mrs.Rashmi Kanna and Anr., [Civil Appeal No.21784/2017, O.S.NO.4849/2014 81 dated 12.12.2017], wherein it has been held as follows :
"41. Reading of the aforementioned principle of law laid down in the cases of V.Tulasamma and Sadhu Singh (supra), it is clear that the ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a "restricted estate" in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a "restricted estate" in the property."
101) Section 14 of the Hindu Succession Act, 1956 reads as under :
"14. Property of a female Hindu to be her absolute property.- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
O.S.NO.4849/2014 82 Explanation .- In this sub-section, "Property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
102) Thus, from the above conspectus of the law, it would be clear that the terms of the gift, Will or other instrument or the decree, or order or award prescribed a 'restricted estate' in the property acquired by a female Hindu, the same does not fall under Section 14(1) of the Hindu Succession Act, O.S.NO.4849/2014 83 1956 and the same falls within the purview of Section 14(2) of the Hindu Succession Act, 1956.
103) Coming to the instant case, Will creates life interest in favour of Defendant No.1 in respect of Item No.1 of suit schedule property in which she had no pre-existing interest because the Item No.1 of suit schedule property was the exclusive and absolute property of the testator and he was free to dispose of his property. Will further recites that after the death of Defendant No.1, the Item No.1 shall go to Defendant No.2 and thereafter to Plaintiff absolutely. In view of clog in the Will, it can be fairly said that Defendant No.1 is a limited owner and not the full owner of Item No.1 of suit schedule property. In that circumstance, her prayer for eviction of Plaintiff from Item No.1 of suit schedule property is not amenable to reason. Accordingly, I answer the above issues.
O.S.NO.4849/2014 84
104) Issue No.7 : For the foregoing discussion, and findings on Issues No.1 to 6; Additional Issues No.1 to 3 framed on 26.03.2019; and Additional Issue No.1 framed on 25.01.2021, I proceed to pass the following :
ORDER (1) Suit filed by Plaintiff is hereby decreed in part.
(2) It is hereby declared that Plaintiff is entitled to 1/4th share in Item No.6 and 8 of suit schedule properties.
(3) Plaintiff's claim in respect of Items No.1 to 5 and 7 is hereby dismissed.
(4) Counter-claim made by Defendants in respect of 'A' and 'B' schedule properties described in written statement is hereby dismissed.
O.S.NO.4849/2014 85 (5) Plaintiff's claim for mesne profits is hereby dismissed.
(6) Parties to bear their own costs. (7) Draw Decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, on this the 4th day of March 2022) (RAMA NAIK) VI Addl.City Civil & Sessions Judge Bengaluru City O.S.NO.4849/2014 86 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Dr.Avinash.J dtd.12.07.2019
(b) Defendants' side :
D.W.1 Smt.Prema Jnaneswar, dtd.02.11.2021
D.W.2 Smt.Reshma.J, dtd.06.12.2021
D.W.3 Sri.Amrith B. Jnaneswar, dtd.04.01.2022
D.W.4 Sri.C.M.Prasad, dtd.05.02.2022
II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of Sale Deed dtd.15.12.2004 Ex.P.2 Certified copy of Sale Deed dtd.24.07.2000 Ex.P.3 Certified copy of Cancellation Deed dtd.21.01.2009 Ex.P.4 Certified copy of Sale Deed dtd.28.03.2007 Ex.P.5 Notary attsted copy of Aadhaar Card Ex.P.6 Affidavit Ex.P.7 Death Certificate of Plaintiff's father Ex.P.8 Encumbrance Certificate for the period from 01.04.1975 to 31.03.2004 Ex.P.9 Encumbrance Certificate for the period from 01.04.2004 to 02.06.2016 O.S.NO.4849/2014 87 Ex.P.10 Khatha Certificate dtd.19.06.2016 Ex.P.11 Khatha Extract dtd.19.06.2016 Ex.P.12 Certificate of Registration
(b) Defendants side :
Ex.D.1 Copy of the Will dtd.14.02.2006 (marked in the cross-examination of P.W.1) Ex.D.2 Original Will dtd.14.02.2006 Ex.D.2(a) Signature of Sri.B.T.Jnaneswar to Ex.D.2(c) Ex.D.3 Khatha Certificate dtd.18.11.2016 Ex.D.4 Khatha Extract dtd.18.11.2016 Ex.D.5 Original Gift Deed dtd.27.11.2006 Ex.D.6 Khatha Extract dtd.15.03.2017 Ex.D.7 Degree Marks Card of Defendant No.2 Ex.D.8 Appointment Order dtd.18.09.2002 Ex.D.9 Experience Certificate dtd.24.04.2007 Ex.D.10 Letter dtd.29.07.2008 Ex.D.11 Letter dtd.30.06.2008 Ex.D.12 Membership Card of Defendant No.2 Ex.D.13 Loan Sanction Letter dtd.30.04.2014 Ex.D.14 Loan repayment statement Ex.D.15 Original Sale Deed dtd.06.11.2004 Ex.D.16 Endorsement dtd.05.02.2005 Ex.D.17 To Tax Paid Receipts Ex.D.22 Ex.D.23 Khatha Certificate Ex.D.24 Certificate issued by BBMP O.S.NO.4849/2014 88 Ex.D.25 House Tax Assessment Extract Ex.D.26 To Tax paid receipts Ex.D.37 Ex.D.38 House Tax Assessment extract Ex.D.39 To Tax paid receipts Ex.D.47 VI Addl.City Civil & Sessions Judge Bengaluru City O.S.NO.4849/2014 89