Bangalore District Court
Sri Samson Sanjeeva J vs Mrs. Shylaja Peter on 7 December, 2018
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 7th day of December 2018
: PRESENT :
Sri B. B. Jakati, B.A., LL.B., (Spl.)
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
O.S.No.3143/2016
PLAINTIFF: Sri Samson Sanjeeva J.,
Aged about 55 years,
S/o Late Jayananda K.,
R/at No.119, 4th Main,
K.E.B. Layout, Bannerughatta road,
Bengaluru - 26.
(By Sri Papi Reddy G., Advocate)
DEFENDANTS: 1. Mrs. Shylaja Peter,
D/o Late Jayananda K.,
W/o Daniel K. Peter,
Aged about 48 years,
R/at No.1, Naicken Palayam,
Avvai Nagar,
Periyanaickem Palyam Post,
Coumbatore - 641 020.
2. Mrs. Savitha Samuel
D/o Late Jayananda K.,
W/o Samuel George,
Aged about 44 years,
R/at No.119,
2 O.S.No.3143/2016
4th Main,
K.E.B. Layout, Bannerughatta
road, Bengaluru - 26.
(By Sri S.M.B., Advocate)
Date of institution of the suit : 22.04.2016
:
Nature of the suit Suit for Partition
Date of commencement of :
recording of the evidence 26.10.2017
Date on which the Judgment :
was pronounced. 07.12.2018
: Year/s Month/s Day/s
Total duration
01 07 15
(B. B. JAKATI)
LIX ADDL. C.C. & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
The plaintiff has filed this suit for partition and separate possession of his 1/3rd share in the schedule property.
2. The case of the plaintiff in brief is that, Jayananda and Alice Krupanidhi are his parents. The defendants are his 3 O.S.No.3143/2016 sisters. The schedule property was the absolute property of his mother and she bequeathed the schedule property to her husband/Jayananda. Alice Krupanidhi died on 04.03.1996 and after her death Jayananda acquired absolute ownership over the schedule property. Jayananda died on 15.02.2010 intestate leaving behind the plaintiff and the defendants. Therefore, himself and defendants who are Christian by Community succeeded and inherited the schedule property under the Indian Succession Act. He has got 1/3rd share in the schedule property and he demanded his share. The defendants denied the share of the plaintiff and hence, this suit.
3. After service of summons both defendants appeared through their counsel and filed the written-statement. The defence taken by the defendants is one and the same. The defendants have admitted the absolute ownership of their mother over the schedule property and bequeathing of schedule property to their father Jayananda. They have not admitted the right and share of the plaintiff in the schedule 4 O.S.No.3143/2016 property by interalia contending that in the year 1994 the plaintiff quarreled with their parents and separated himself from the family by taking his share of property by executing Memorandum of Relinquishment on 18.11.1994. Since then he is residing separately. Defendant No.2 is suffering from Cancer. In the schedule property there is house in ground floor and in the first floor. The defendant No.1 settled with her husband. Therefore, Jayananda decided to part with the schedule property in favour of defendant No.2. Accordingly, Jayananda bequeathed the schedule property in favour of defendant No.2 by executing the Will deed dated 30.09.2003. After the death of Jayananda, the defendant No.2 has become absolute owner of the schedule property. In that property plaintiff and defendant No.1 have no share or right. However, on the request of the plaintiff, the ground floor building was given to the plaintiff on lease. The plaintiff agreed to pay rent of Rs.2,500/- and pay interest-free security deposit of Rs.1,00,000/-. The plaintiff refused to vacate the ground floor and therefore, defendant No.2 filed petition for eviction in Small 5 O.S.No.3143/2016 Cause Case No.126/2015 before the Small Cause Court, Bengaluru, which is pending. The plaintiff without having any right in the schedule property refusing to vacate and he has no share in the schedule property. On these grounds, the defendants prayed to dismiss the suit with costs.
4. On the rival pleadings of the parties, the following issues have been framed:
(1) Whether the defendants No.1 and 2 prove the Will deed dated 30.09.2003 said to be executed by their father?
(2) Do they further prove that the plaintiff has executed relinquishment deed dated 18.11.1994?
(3) Whether court fee is insufficient?
(4) Whether plaintiff is entitled for any share in schedule property?
5. To prove the claim, the plaintiff examined himself as P.W.1 and got marked the documents at Ex.P.1 to P.7. On behalf of defendants, the defendant No.2 has been examined 6 O.S.No.3143/2016 as D.W.1 and another witness as D.W.2 and got marked the documents at Ex.D.1 to Ex.D.15.
6. The learned counsel for the plaintiff has argued that the defendants have admitted the ownership of Jayananda over the schedule property and therefore, after the death of Jayananda plaintiff and defendants have equally inherited or succeeded to the schedule property and therefore, plaintiff has got 1/3rd share in the schedule property. He has argued that the defendants have set up Will deed said to be executed by Jayananda. Such Will deed not seen the light of the day after the death of Jayananda till 2015. The witnesses cited on the Will deed are strangers to the family. Under the Will deed the natural inheritance has been disrupted. The defendants have not produced admitted handwritings of Jayananda and therefore, there are so many suspicious circumstances surrounding the Will deed. Such suspicious circumstances create doubt about the genuineness of the Will deed and such suspicious circumstances have not been dispelled by the 7 O.S.No.3143/2016 defendants in accordance with law. On these grounds, he has submitted that defendants have not proved the Will deed and requested to decree the suit. In support of his submissions, he placed reliance on the decisions reported in (1) AIR 1998 SC 2861 {Gurdial Kaur and others V/S. Kartar Kaur and others} ; (2) AIR 1959 SC 443 {H. Venkatachala Iyengar V/S. B.N. Thimmajamma and others} ; (3) AIR 1977 SC 74 {Smt. Jaswant Kaur V/S. Smt. Amrit Kaur and others} ; (4) (2006) 13 SCC 449 {B. Venkatamuni V/S. C.J. Ayodhya Ram Singh and others}.
7. On the other hand, the learned counsel for the defendants has argued that plaintiff though admitted the ownership of Jayananda on the basis of the Will deed executed by his mother, in the evidence he is disputing such fact also. According to him the defendant No.2 was suffering from Cancer, plaintiff was separated from the family and these circumstances show that the Will deed executed by Jayananda in favour of defendant No.2 alone found to be natural. He has 8 O.S.No.3143/2016 argued that Will deed has been proved through attesting witnesses and by producing primary evidence of Will deed. The Will deed is the holograph and there are no suspicious circumstances surrounding the Will deed. Therefore, the Will deed has been proved by the defendants in accordance with law and such Will deed has to be accepted. On these grounds, he prayed to dismiss the suit. In support of his argument he relied on the decisions reported in (1) LR 2002 KAR 2455 {Vincent Britto V/S. Mrs. Eunice Britto} ; (2) AIR 2002 SC 637 {Madhukar D. Shende V/S. Tarabai Aha Shedage ; (3) AIR 2005 SC 52 {Meenakshi Ammal (Deceased) by LRs. and others V/S. Chandrasekaran and another ; (4) L996 SCALE (3) 596 {Joyce Primrose Prestor V/S. Mrs. Vera Marie Vas}.
8. I have given my anxious thoughts to the submissions made by both parties and meticulously perused the evidence on record. In the light of the material evidence on record, my findings to the above Issues are as under :
Issue No.1 : In the Affirmative.
9 O.S.No.3143/2016
Issue No.2 : In the Negative.
Issue No.3 : In the Negative
Issue No.4 : In the Negative
for the following:
REASONS
10. ISSUE NO.1 : - Both parties in the pleadings itself have admitted that schedule property is house consisting of ground and first floors. The schedule property was owned and possessed by their mother / Alice Krupanidhi and she bequeathed the schedule property in favour of her husband / Jayananda through registered Will deed dated 14.12.1994. The parties have admitted the ownership including the possession of schedule property by Jayananda. Alice Krupanidhi died on 04.03.1996 and Jayananda died on 15.02.2010. The plaintiff is the son and defendants are the daughters of Jayananda and Alice Krupanidhi. It is further admitted by the parties that at present the plaintiff is in possession of ground floor and defendant No.2 is in possession of the first floor of the building situated in the schedule property. Both parties are governed by Christian Law. The concept of joint family and joint family 10 O.S.No.3143/2016 nucleus is unknown to Christian Law. Therefore, Jayananda had absolute right to alienate the schedule property during his lifetime, which has been admitted by the parties. In the background of these admitted facts, whether Jayananda executed the Will deed bequeathing the entire schedule property in favour of defendant No.2 is to be considered.
11. Ex.P.1 is the genealogy, Ex.P.2 and 3 are the khatha certificate and khatha extract of schedule property standing in the name of Jayananda. Ex.D.1 is the Will deed dated 14.12.1994 executed by Alice Krupanidhi. Ex.D.2 is the death certificate of Jayananda. Ex.D.3 is the Khatha extract made in the name of Jayananda. Ex.D.5 to Ex.D.13 are the tax paid receipts relating to schedule property of different years. All these documents are also not in dispute.
12. The plaintiff produced the copy of the plaint in S.C.No.163/2015 on the file of Small Cause Court, Bengaluru, which shows that defendant No.2 herein instituted that suit against the present plaintiff for eviction of the plaintiff from the 11 O.S.No.3143/2016 ground floor of the schedule property and that suit was pending when the present suit was instituted. The institution of this suit is also not disputed by the parties.
13. In order to establish the Will deed the defendants have produced the primary evidence at Ex.D.14. Ex.D.14 is the Will deed said to be written by Jayananda in his own handwriting on 30.09.2003. In the Will deed it has been shown that executor acquired the schedule property from his wife under the Will deed dated 14.12.1994 and defendant No.2 was suffering from Cancer. It has been shown that defendant No.2 was looking after Jayananda and also his wife. It has been further stated that the plaintiff separated himself from Jayananda and therefore, the schedule property was bequeathed in favour of the defendant No.2. This document has been serious disputed by the plaintiff. The defendant No.1, who is another sister of plaintiff admitted the Will deed at Ex.D.14. So, two heirs of Jayananda are admitting the Will deed and another heir is disputing.
12 O.S.No.3143/2016
14. As per the mandate of Section 63 of Indian Succession Act, 1925, the defendant No.2, who is the propounder of the Will deed is required to establish that the testator has signed or affixed his mark to the Will deed, how Will has been attested by two or more witnesses, each of whom has seen the testators sign or affixed his mark to the Will at Ex.P.14. In order to prove the signature of the testator/ Jayananda, the D.W.1 who is the propounder of the Will has categorically stated that the entire Will deed is in the handwriting of testator including the signature. This evidence of D.W.1 has been denied by the plaintiff. The D.W.2 is one of the attesting witnesses to Ex.D.14 and he is Advocate by profession. He has stated that Will has been written by Jayananda and in presence of himself and his wife Jayananda put his signature on Ex.D.14. In the cross-examination the plaintiff has denied the evidence of D.W.2. However, the D.W.1 and 2 stood for their statements that the Will is in the handwriting of Jayananda and Jayananda put his signature on 13 O.S.No.3143/2016 the deed. The evidence of D.W.1 and 2 has not been shaken in respect of handwriting and signature of testator of Ex.D.14.
15. The defendants have produced the diary, said to be maintained by Jayananda at Ex.D.4. In the diary there are many handwritings, which came to be marked in Ex.D.15. The plaintiff has also denied these handwritings of his father and mother. The D.W.1 has deposed to the fact that the handwriting appearing in Ex.D.14 and 15 are of his father / Jayananda. Such statement has not been discredited in the cross-examination.
16. The P.W.1 in his cross-examination at Para No.2 has admitted that his father was knowing to write and read in English Language. In Para No.3 of the cross-examination the P.W.1 has stated that he might have got the handwritings of his father and he would produce if found. The plaintiff who is disputing the handwriting in Ex.D.14 and Ex.D.15 not produced any of the handwritings or the signature of his father. On the other hand in the cross-examination in Para No.3 the P.W.1 14 O.S.No.3143/2016 pleaded his ignorance about the writings of some of the address in Ex.D.15 by his father. In other words the P.W.1 has not categorically denied the handwritings appearing in Ex.D.15 of his father. The defendants have tried their level best to bring admitted handwriting of Jayananda on record. The plaintiff, who is the son of testator might have admitted the handwritings and signatures of his father and he has withheld such handwritings of his father. Therefore, adverse inference has to be drawn against the plaintiff, who is disputing the handwriting of his father on Ex.D.14 and Ex.D.15. Considering the evidence of D.W.1, 2 and the admissions given by P.W.1 in the cross-examination, I hold that Ex.D.14 is proved to be in the handwriting of testator i.e. Jayananda.
17. On perusal of Ex.D.14 which is consisting of three pages, it appears that the first page is written from one pen, second and third pages are written from different pen. But on perusal of the handwriting of all the pages and the strokes, there appears similarity and there is continuity from first page 15 O.S.No.3143/2016 to third page. Therefore, only because two pens are used for writing Ex.D.14, it cannot be held that the handwritings appearing in Ex.D.14 not belong to testator as there is evidence on record from D.W.1 and 2 that the handwritings on all the pages belong to testator.
18. In ILR 2002 KAR 2455, the Hon'ble High Court has relied upon the decision of Hon'ble Supreme Court in the case of Joyce Primrose Prestor V/S. Mrs. Vera Marie Vas and held that holograph Wills would be having more value under law. The same judgment is relied upon by the defendants which is reported in 1996 SCALE (3) 596. In the present case also there is holograph Will. In Ex.D.14 not only signature of the testator is appearing but also his handwriting is available in three pages. Therefore, the Will deed at Ex.D.14 which is holograph Will has got more value in the law. Considering these evidence on record, I hold that the plaintiff has complied Section 63(a) of the Indian Succession Act, 1925.
16 O.S.No.3143/2016
19. Ex.D.14 is attested by two witnesses, Which is sufficient to comply Section 63(c) of Indian Succession Act, 1925. D.W.2 is one of the attesting witnesses and he has categorically stated that he saw the testator while putting his mark on Ex.D.14. He identified the signature of Jayananda on Ex.D.14. Such evidence has not been discredited in the cross- examination. Therefore, such evidence is sufficient to comply Section 63(c) of Indian Succession Act, 1925.
20. Section 68 of Evidence Act provides that if the 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. In order to comply this mandatory provision, the defendant No.2 has called the D.W.2, who is one of the attesting witnesses to Ex.D.14. The D.W.2 has spoken to the fact that he saw the testator while putting the signature on Ex.D.14. In the cross-examination such statement of D.W.2 has been tested. The D.W.2 in Para No.4 of his cross-examination has stated that Will was written 17 O.S.No.3143/2016 by Jayananda, it was brought to the house of D.W.2 and he saw putting the signature on Ex.D.14. He has also stated that his wife was also present when testator put his signature on Ex.D.14 and his wife has signed as attesting witness. The attesting witnesses are husband and wife. They are not relating to testator or their family members. There is no enmity between the plaintiff and the witnesses cited in Ex.D.14. Therefore, there was no reason for the D.W.2 to depose falsehood in respect of Ex.D.14. The D.W.2 is Advocate by profession and therefore, his evidence has to be accepted not only by looking to his profession, but his statements made in evidence, which is trustworthy. Accordingly, the evidence of D.W.2 is accepted. Considering these evidence on record, I hold that even the defendant No.2 has complied Section 68 of Evidence Act. Thus, I hold that the propounder of the Will has proved that Ex.D.14 is in the handwriting of Jayananda and it has been signed by Jayananda. It is not the case of the plaintiff that Jayananda was not in good state of mind. On the other hand, the D.W.1 and 2 have stated that Jayananda was 18 O.S.No.3143/2016 in good state of mind and by knowing the contents he signed on the Will. Therefore, I hold that even the propounder has established that Ex.D.14 has been executed by Jayananda when he was in disposing state of mind.
21. The Hon'ble Supreme Court in the decisions reported in AIR 1998 SC 2861, AIR 1977 SC 74 and (2006) 13 SCC 449 has held that while arriving at a finding as to whether the Will was duly executed, the court must satisfy its conscience having regard to the totality of the circumstances of the particular case and mere proof of execution in terms of Section 63 of Indian Succession Act and Section 67 and 68 of Indian Evidence Act is not sufficient. It has been held that if the Will is surrounded with suspicious circumstances, the propounder is required to dispel all such suspicious circumstances.
22. The Hon'ble Supreme Court in the decision reported in AIR 2002 SC 637 has held that law of evidence does not permit conjecture of suspicion having the place of legal proof 19 O.S.No.3143/2016 nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - Positive or Negative.
23. In another judgment reported in AIR 2005 SC 52 the Hon'ble Supreme Court has held that in order to prove the Will the testamentary capacity and signature of the testator are to be proved in accordance with law. It has been further held that if there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court.
24. From the decisions referred above it is very clear that the propounder of the Will i.e. defendant No.2 herein not only to prove the Will deed in accordance with Section 63 of Indian Succession Act and Section 68 of Evidence Act, is also required to explain and dispel suspicious circumstances if any surrounding the Will deed.
20 O.S.No.3143/2016
25. The learned counsel for the plaintiff has submitted that if the Will was not executed, the plaintiff would have been naturally got his share in the schedule property by way of succession under Indian Succession Act and the Will has created disinheritance and therefore, the defendants are required to prove why no property was given to plaintiff and the defendant No.1 and this is the suspicious circumstance surrounding on the Will. In view of this submission, the defendants are required to explain why the father not given any property to son and another daughter.
26. Jayananda was having son and two daughters when Ex.D.14 was executed. It is on record that defendant No.2 is suffering from Cancer. The plaintiff and defendant No.1 settled with their family in different places. It is also proved that defendant No.2 was residing in the schedule property during the lifetime of her parents and such residence has been continued till today. Therefore, it is evident on record that defendant No.2 who was suffering from Cancer was in need of 21 O.S.No.3143/2016 financial support. This is one of the circumstances which show that father decided to give his own property to daughter who was suffering from Cancer.
27. Ex.D.1 is the primary evidence of Will deed dated 14.12.1994 executed by mother of the plaintiff. This Will deed is registered one. Under this Will deed the schedule property has been bequeathed by Alice Krupanidhi to her husband Jayananda. This Will deed has been totally admitted by the plaintiff. Therefore, Ex.D.1 need not be proved in accordance with Section 63 of Indian Succession Act and Section 68 of Evidence Act.
28. In Ex.D.2 in Para No.4 the mother of the plaintiff categorically made a statement that plaintiff was aged 31 years, necessary education was given to him and the plaintiff left herself and her husband and started to reside separately. It has been stated that the plaintiff being the son has given immense problem and quarreled with the parents and even demanded share in the family property. Accordingly, on 22 O.S.No.3143/2016 18.11.1994 the parents have given Rs.1,25,000/- to the plaintiff who is the son and thereby the son has relinquished his right in family properties. There is recital in Ex.D.1 that parents convinced that plaintiff would not take care of them in their old age and because of these reasons mother has bequeathed the schedule property in favour of Jayananda. The attention of the plaintiff has been drawn to these recitals. The plaintiff has admitted the deed at Ex.D.1. Therefore, the recitals made in Ex.D.1 which are the statements made by the mother are having more value in the law. These recitals clearly show that plaintiff being the son left the parents by taking money from the parents and even he has given trouble instead of taking care of the parents. Therefore, this recital in Ex.D.1 made clear that father and mother of the plaintiff were not having intention to give any property to the plaintiff.
29. The P.W.1 in his cross-examination at Para No.2 has admitted that his parents were serving and they were retired. His father retired in the year 1989-90. In Para No.4 of 23 O.S.No.3143/2016 the cross-examination the P.W.1 has stated that his parents constructed ground floor in the schedule property and in Para No.8 of the cross-examination he has admitted that the second defendant constructed the first floor in the schedule property in the year 2007-08. The D.W.1 in her cross-examination has admitted that her father used LIC policy amount, retirement benefits for construction of first floor in the schedule and some amount has been given by her. These statements made by P.W.1 and D.W.1 show that the defendant No.2 was residing with her parents and she has also contributed money for construction of first floor in the schedule property. The admission of P.W.1 further shows that entire first floor has been constructed by defendant No.2 in the schedule property. These circumstances show that the plaintiff was not residing with his parents and on the contrary he has neglected and quarreled with his parents.
30. In Ex.D.14 there is a recital that the plaintiff left his parents during the lifetime of Alice Krupanidhi and at that time he quarreled and left the house. This is the reason expressed 24 O.S.No.3143/2016 by the testator in Ex.D.14 not to give immovable property. This statement made in Ex.D.14 gets support from the recitals made in Ex.D.1 and the oral evidence of the parties. Considering these facts and the evidence it is very clear that during the lifetime of parents the plaintiff quarreled with them, left the parents and started to reside separately by taking money. This is the reason why the parents started to reside with defendant No.2, who was suffering from Cancer. These are the reasons for the parents to decide that entire schedule property should go to the defendant No.2. Therefore, I hold that only because no immovable property was given to plaintiff under the Will deed, is not a ground to reject the Will deed at Ex.D.14 or to reject the evidence brought on record by the defendants.
31. In the Will deed the testator has stated that the 2nd defendant has to give a sum of Rs.2,50,000/- to the first defendant and a sum of Rs.1,00,000/- to the plaintiff. The defendant No.1 is not disputing the Will deed. These recitals made in Ex.D.14 further show that testator has made 25 O.S.No.3143/2016 arrangement for payment of cash to the plaintiff and defendant No.1 at the time of executing the Will deed. So, some benefit has been given to the son also even though son deserted the parents and given trouble. This is another circumstance to show that testator decided not to give his immovable property to the plaintiff. Thus, I hold that the defendants have dispelled the suspicious circumstances in this regard surrounding the Will deed at Ex.D.14.
32. The learned counsel for the plaintiff has argued that in Ex.D.14 strangers to the family have put signatures as attesting witnesses and such fact creates suspicious circumstance on the Will deed. In the opinion of the court this argument of the counsel for the plaintiff is not sustainable under law for the following reasons. Section 63(b) of Indian Evidence Act mandates that Will deed has to be attested by at least two witnesses. There is no bar for the testators to get attested the Will deed by strangers like friends. There is no rule that only the relatives of the testator have to put their 26 O.S.No.3143/2016 signature attesting the Will deed. Admittedly, the plaintiff, defendants are the children of testator and the relationship of testator with his daughters and relatives of his daughters was good. On the other hand, the relationship of testator with the plaintiff, his wife and relatives of his wife were not good. There is no evidence on record that testator had nearest relatives residing nearby the schedule property where testator was residing. Therefore, there was no possibility for the testator to call his nearest relatives. If testator had called the relatives of husband of defendants, then there would be further room for disputing the Will deed on the ground that beneficiaries have taken active participation. Therefore, it appears that testator has decided to call strangers as witnesses to attest the Will deed.
33. The D.W.2 and his wife are the attesters of Ex.D.14. The D.W.2 in his cross-examination has stated that his house is at a distance of 1 ½ KM from the schedule property where the testator was residing. He has also stated that from 1997-98 Jayananda was his friend and he attended 27 O.S.No.3143/2016 the marriage of second defendant. These statements of D.W.2 not been denied by the plaintiff in the cross-examination. As already stated the D.W.2 was practicing Advocate. When D.W.2 was the friend and residing nearby the house of testator, there was probability to call the D.W.2 and his wife to attest the Will deed by the testator. Therefore, naturally the testator has called the D.W.2 and his wife for attesting the Will deed and in fact the Will deed was taken to the house of D.W.2. For these reasons I hold that only because the friend of testator has attested the Will deed along with his wife is not a ground to discard the evidence of D.W.2 and also Ex.D.14/Will deed.
34. The learned counsel for the plaintiff has argued that Jayananda died on 15.02.2010 and till filing of Small Cause case in the year 2015, the Will deed has not seen the light of the day and such fact creates suspicious circumstance, which has not been dispelled. This contention is also not sustainable for the reasons given hereinafter.
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35. Jayananda died on 15.02.2010. With Jayananda the defendant No.2 was residing in the same house. She constructed the first floor in the schedule property with the assistance of her father. There is evidence on record that plaintiff requested the defendant No.2 for accommodation and therefore, defendant No.2 on humanitarian ground given the ground floor to the plaintiff for his residence and she started to reside in the first floor after the death of Jayananda. She was taking nominal rent and when the plaintiff started to assert his title, the defendant No.2 approached the court of law to evict the plaintiff in the year 2015. At that time occasion arisen for the defendant No.2 to disclose the fact of Will deed and to establish the Will deed before the court of law. Before that there was no occasion for the defendant No.2 to establish the Will deed.
36. The P.W.1 in his cross-examination in Para No.6 has admitted that defendant No.2 paying the tax of the schedule property from 2010 till the date of his evidence. He has also 29 O.S.No.3143/2016 admitted that he is not having custody of any of the original documents of the schedule property. In Para No.7 the P.W.1 further admitted that on 18.11.1994 he has executed the deed in favour of his parents when he left the house. In Para No.8 of the cross-examination the P.W.1 has admitted that the second defendant constructed the first floor in the schedule property in the year 2007-08. These facts show that defendant No.2 was residing with her parents in the schedule property till the death of Jayananda and even thereafter she continued in the same house.
37. In ordinary course the defendant No.2 ought to have applied for Khatha which has not been done by the defendant No.2. The defendant No.2 was suffering from Cancer and she lost her father in the year 2010. Litigation started in the year 2015. There is a gap of about four years. Looking to this gap, I am of the opinion that only because the defendant No.2 not applied for Khatha before BBMP, inference cannot be drawn that Will deed has been created by the 30 O.S.No.3143/2016 defendants. On the other hand, the Will deed is holograph of the testator and therefore, there is no possibility of creation of handwriting of testator in order to create the Will deed. It can be pointed out that the testator while writing Ex.D.14 not completed writing at a stretch. The change in pen used for writing Ex.D.14 shows that afterthought the testator written the Will deed and finally decided that it has to be attested by the witnesses and therefore, he has taken the deed to the house of D.W.2. Therefore, there is no chance of creation of Will deed. Having regard to these facts, I hold that there are no suspicious circumstances surrounding on the Will deed. Even if there is suspicious circumstance for not establishing the Will for four years, such suspicious circumstance has been explained by the propounder.
38. The defendants have produced tax paid receipts at Ex.D.5 to Ex.D.12. After the death of testator the defendant No.2 has paid the tax. The plaintiff not paid the tax of the schedule property, which has been admitted in the cross- 31 O.S.No.3143/2016 examination. If really there was no Will deed, the plaintiff could have asked his share in the schedule property soon after the death of Jayananda. He has not taken any action till filing of this suit in the year 2016 to get his share. The payment of tax by the defendant No.2 and silence on the part of the plaintiff also shows that the father has bequeathed the schedule property to the defendant No.2 through Will deed. Having regard to all these material evidence on record, I hold that the propounder has established Ex.D.14 in accordance with law and dispelled all the suspicious circumstances surrounding on the Will deed. Accordingly, I hold that the Will deed has been proved. Hence, I answer this issue in the Affirmative.
39. ISSUE No.2 :- The defendants have taken the plea that on 18.11.1994 when the plaintiff separated from the family has relinquished his right in the family properties. In order to prove such fact the defendants tendered the Memorandum of Relinquishment dated 18.11.1994 said to be executed by the plaintiff in evidence. Such deed was not 32 O.S.No.3143/2016 received in evidence. So, there is no documentary evidence to prove the fact that plaintiff relinquished the right in the schedule property on 18.11.1994. In order to relinquish the right in the schedule property, which is immovable property, worth more than Rs.100/- registered deed is required and no such registered deed is executed by the plaintiff. Therefore, oral evidence is not sufficient to prove the fact of relinquishment.
40. The plaintiff in his cross-examination in Para No.1 has admitted that on 18.11.1994 he has executed the deed in favour of his parents. But he has not admitted the deed produced by the defendants. This oral statement of defendants is not sufficient to hold that plaintiff relinquished the right in immovable property, which is the schedule property. Thus, I answer this issue in the Negative.
41. ISSUE No.3 :- The defendants disputed the correctness of the court fee paid by the plaintiff. Whether the court fee is paid properly or not is to be decided. The plaintiff 33 O.S.No.3143/2016 has pleaded that the schedule property was the property of his father and after his death himself and his sisters have inherited and succeeded under Indian Succession Act. Accordingly, he sought for partition of his 1/3rd share in the schedule property. He has valued the relief of partition under Section 35(2) of Karnataka Court Fees and Suits Valuation Act and paid the court fee. At the time of filing the suit the plaintiff was residing in the ground floor of the schedule property. These are the factual aspects of the matter.
42. Under law to ascertain the correctness of the court fee, the averments made in the plaint has to be looked into and not the evidence. When the plaintiff has contended that he was in joint possession of the schedule property being the brother of defendants and paid the court fee by invoking Section 35(2) of Karnataka Court Fees and Suits Valuation Act and such valuation cannot be disputed. Therefore, I hold tht the court fee paid by the plaintiff is proper. Hence, I answer this issue in the Negative.
34 O.S.No.3143/2016
43. ISSUE NO.4 :- The plaintiff established that the schedule property was owned and possessed by his father. The defendants have established that Jayananda who was the absolute owner of the schedule property bequeathed the same in favour of defendant No.2 through Ex.D.14. When the owner has bequeathed the property under testamentary document, the plaintiff being the son of testator would not get any share in the schedule property as father not left any property for succession. Therefore, I hold that the plaintiff is not entitled for any share in the schedule property. Thus, I answer this issue in the Negative and pass the following:
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
[Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me, in the Open Court on this the 7th day of December, 2018].
(B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.35 O.S.No.3143/2016
ANNEXURE
1. List of witnesses examined on behalf of the plaintiff:
P.W.1 Sri Samson Sanjeeva
2. List of witnesses examined on behalf of the Defendant:
DW.1 Smt. Savitha Samuel
D.W.2 Sri Stanley Lazarus
3. List of documents marked on behalf of the Plaintiff:
Ex.P.1 Genealogy tree
Ex.P.2 Khatha certificate
Ex.P.3 Khatha extract
Ex.P.4 Release deed
Ex.P.5 Copy of legal notice
Ex.P.6 Plaint in SC.No.163/2015
Ex.P.7 Deposition in SC.No.163/2015
4.List of documents marked on behalf of the defendant:
Ex.D.1 Will
Ex.D.2 Death certificate
Ex.D.3 Khatha endorsement
Ex.D.4 Diary
Ex.D.5 to 13 Tax paid receipts
Ex.D.14 Last Will & Testament
Ex.D.14(a) Signature of Jayananda
Ex.D.14 (b & c) Signature of D.W.2 and his wife
36 O.S.No.3143/2016
Ex.D.15 & Marked portion of Handwritings of
15(a) to (g) deceased Jayananda
(B. B. JAKATI)
LIX ADDL. C.C. & SESSIONS JUDGE,
BENGALURU CITY.
37 O.S.No.3143/2016
07.12.2018:
Judgment pronounced in the Open Court
(Vide separate detailed judgment)
ORDER
The suit of the plaintiff is
dismissed with costs.
Draw decree accordingly.
(B. B. JAKATI)
LIX ADDL. C.C. & SESSIONS JUDGE,
BENGALURU CITY.
38 O.S.No.3143/2016