Bangalore District Court
Rajanna vs Govindaraju on 5 February, 2025
KABC0A0028822005
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
Dated this the 5th day of January, 2025.
PRESENT:
Sri BALAPPA APPANNA JARAGU, B.Sc., LL.B.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.16665/2005
PLAINTIFFS : Rajanna,
Since dead by his Lrs.
1(a). Smt. Saraswathamma,
W/o. Late Rajanna M.,
Aged about 68 years,
Residing at No.6, 2nd Main Road,
Chennakrishnappa Street,
P.G.Halli, Bangalore - 560 003.
1(b). Smt. Nalini B.R.,
D/o. Late Rajanna M.,
Aged about 50 years.
1(c). Ms. Rajeshwari B.R.,
D/o. Late Rajanna M.,
Aged about 50 years.
Cont'd..
2 O.S.No.16665/2005
Both plaintiffs No.1(b) and 1(c) are
Residing at Flat No.522, 5th Floor,
Mahaveer Ceder Apartment, AGB
Layout, Near Sapthagiri Hospital,
Bengaluru - 560 090.
1(d). Hemanth Kumar B.R.,
S/o. Late Rajanna M.,
Aged about 45 years,
Residing at No.16, 4th Cross,
Sidedahalli, Byraveshwara
Circle, Nagasandra Post,
Bengaluru - 560 073.
(By Sri Jose Sabastian, Advocate)
-VERSUS-
DEFENDANTS : 1. Govindaraju,
S/o. Late Munishamappa,
Aged about 58 years,
Residing at No.69, C.K. Street,
P.G.Hally, Bangalore.
2. Srinivasamyrthy,
S/o. Late Munishamappa,
Aged about 58 years,
Residing at No.6, C.K. Street,
P.G. Hally, Bangalore.
3. B.N. Manjunath,
Since dead by his Lrs.
3(a). Smt. Gangarathna,
W/o. Late B.N. Manjunath,
Aged about 40 years.
3(b). Kumari Sindu,
D/o. Late B.N. Manjunath,
Aged about 25 years.
Both are residing at No.6,
Channakrishnappa Street,
3 O.S.No.16665/2005
Palace Guttahalli,
Bangalore - 560 003.
4. B.N. Suresh,
S/o. Late M. Nanjappa,
Aged about 35 years,
Residing No.6, C.K. Street,
P.G. Hally, Bangalore.
5. B.N. Umadevi,
W/o. Nagesh,
D/o. Late M. Nanjappa,
Aged about 32 years,
Residing No.6, C.K. Street,
P.G. Hally, Bangalore.
6. G. Vinod,
S/o. Gangadhar,
Aged about 34 years,
Residing at No.8, 3rd Cross,
4th Main Road, Patilappa
Layout, Nelamangala,
Bangalore Urban.
7. Vijayakumar,
S/o. Mahesh Kumar,
Aged about 28 years,
Residing at No.45, 7th Cross,
3rd Main Road, II Block,
Nandini Layout,
Bangalore - 96.
(D1 & D5 : Ex-parte, D.2 & D.6 by Sri
H.S.D., advocate, D.3 - Dead, LR's of D.3(a)
& 3(b) Sri V.R., advocate, D.4 - L.G., D.7
by Sri K.M.N., Advocate)
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Date of Institution of the Suit : 16-06-2005
Nature of the Suit (Suit on : Partition Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
4 O.S.No.16665/2005
Date of the commencement : 15-02-2012
of recording of the evidence
Date on which the Judgment : 05-01-2025
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 19years, 07months, 19days.
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(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
JUDGMENT
This suit is instituted by the plaintiff against the
defendants for the relief of partition and separate
possession of his 1/4th share in suit schedule ‘A’ and
‘B’ properties by metes and bounds. The plaintiff has
also sought for permanent injunction, restraining
defendants from alienating suit properties in favour of
third persons or creating any charge over suit
properties. The plaintiff has further sought for
permanent injunction, restraining defendants from
forcibly dispossessing plaintiff from occupation of suit
property, without due process of law. Further declare,
compromise decree passed in O.S.No.3659/2008 dated
5 O.S.No.16665/2005
14.12.2011 is null and void and same does not bind
right, title and interest of plaintiff in respect of suit ‘B’
schedule property.
2. The case of the plaintiff in brief is as under:-
That, deceased original plaintiff, defendant No.1,
defendant No.2 and deceased M. Nanjappa are sons of
propositus R. Munishamappa and late Siddamma. Suit
‘A’ schedule property was granted land which was
allotted in favour of Ramanna, who is father of
Munishamappa. Suit ‘B’ schedule property is Hindu
undivided joint family property of family members of
Munishamappa. Khata of suit properties are standing
in name of Late R. Munishamappa throughout. Earlier,
original plaintiff, his brothers and his Mother had filed
suit in O.S.603/1980 in respect of property acquired for
Chakravarthy Layout, now Appeal is pending before
Hon’ble High Court. The plaintiff recently come to know
that, defendant No.6 filed suit for specific performance
in respect of Suit ‘B’ schedule property against
defendant No.2 in O.S. NO. 3659/2008. Plaintiff not
made as party to said suit though subject matter
6 O.S.No.16665/2005involved therein is a joint family property of plaintiff
and defendant No.1 to 5. Alleged compromise petition
and consequential compromise decree does not bind
plaintiff in respect of suit ‘B’ schedule property. Alleged
Will set up by defendants seems to be created as
Munishamappa died on 30.04.1974. At the time of
death, Munishamappa was aged about 86 years and he
was paralysed and he was suffering from Asthama,
Blood pressure, apart from this he had age related
problems like blurring of vision, lack of comprehension
and lack of hearing. Under these circumstances, it is
highly doubtful how Munishamappa could have
executed alleged Will in favour of defendant No.2.
Munishamappa had no manner of right or authority to
execute Will in favor of anybody much less defendant
No.2. Even assuming, said Will was executed in favour
of defendant No.2, sale does not bind right and interest
of the Plaintiff in suit ‘B’ schedule property. Plaintiff has
demanded his share in suit properties. Ultimately on
06.06.2005, a panchayat was conveyed to settle matter
amicably but due to adamant attitude of defendant
No.2, Panchayat could not take any decision. On these
7 O.S.No.16665/2005pleadings, the plaintiff and later on legal representative
of plaintiff have prayed to decree the suit as prayed in
plaint.
3. In response to the service of suit summons,
defendants No.1 to 7 have tendered their appearance
before the court through their respective counsels and
contested the case and filed written statement.
4. The contents of written statement of
defendants No.2 to 4 in brief are as under:-
That, suit filed by plaintiff is barred by law of
limitation and same is bad for non joinder of necessary
parties. These defendants have acquired their
ownership, title and interest over suit ‘B’ schedule
property through registered Will executed by
R. Munishamappa during his life time. Since, during or
before 1990 Khata of ‘A’ schedule property was standing
in name of defendant No.1. Plaintiff has filed similar
suit against defendants in O.S. NO.767/2000 and same
is pending on the file of CCH-19. The plaintiff
suppressing said fact filed present suit. The defendants
have denied existence of joint family or joint family
8 O.S.No.16665/2005properties. Defendants do not know how and on what
basis plaintiff is claiming 1/4th sharing suit schedule
properties. Defendants No.1 and 2 are residing in ‘B’
schedule property ever since death of R.
Munishamappa. Suit ‘B’ schedule property is self
acquired property of R. Munishamappa, who is father of
plaintiff and defendant No.1 and 2. Suit ‘B’ schedule
property was purchased by R.Munishamappa through
registered sale deed for valuable sale consideration.
Further it is contended, among defendants there was
already partition took place during life time of R.
Munishamappa. R. Munishamappa being absolute
owner and in possession of ‘B’ schedule property
executed registered Will dated 11.02.1974 in favour of
defendant No.2 and deceased M. Nanjappa. M.
Nanjappa had daughter by name Smt. Nirmala Devi,
she died leaving behind her children Vijay kumar and
husband Mahesh Kumar. They are not made as parties
to suit. During his life time, R. Munishamappa had
entrusted title right and interest in respect of Sy.No.13
of Mallenahalli Village in favour of Plaintiff. The plaintiff
and his wife without knowledge of Munishamappa and
9 O.S.No.16665/2005defendants colluded with C. Rajagopal and forcibly
taken consent of Munishamappa to form layout in Sy.
No.13. Plaintiff did not care for parents during their life
time. So far as ‘A’ schedule property is concerned, it is
granted by State of Mysore in favour of plaintiff.
Thereafter Munishamappa had purchased suit ‘B’
schedule property out of his own income. Plaintiff filed
O.S. NO.767/2000 on similar cause of action and for
similar relief against defendants. The plaintiff has
included ‘B’ schedule property over which neither
plaintiff nor alleged joint family concerned. On these
grounds, the defendants have requested to dismiss the
suit.
5. The contents of written statement of
defendants No.5 to 7 in brief are as under:-
That, suit filed by plaintiff is on false pretext and
same is not maintainable in law. Suit suffers from
principles of Res-judicate as plaintiff has suppressed
filing of earlier suit in O.S. No. 767/2000. Suit of the
plaintiff is barred by law of limitation. Munishamappa
during his life time being absolute owner of shit ‘B’
10 O.S.No.16665/2005schedule property executed Will deed dated 11.02.1974
in respect of said property in favour of defendant No.2
and same is acted upon. Khata of property transferred
as per registered Will, same is within knowledge of
plaintiff and his family members. There is no Hindu
undivided joint family, hence, plaintiff is not entitle to
claim self acquired property of Munishamappa that too
after he bequeathed it through registered Will dated
11.02.1974. Plaintiff has not produced a single
document before court that, schedule ‘B’ property is
joint family property or ancestral property. The plaintiff
aware that, his father had purchased ‘B’ schedule
property out of his own funds in his individual capacity.
Grandfather of plaintiff deceased Ramanna was not in
position to incur expenses of Munishamappa, he
mortgaged ‘A’ schedule property. In this regard, he
executed few registered loan agreements in favour of
money lenders. The plaintiff has knowledge about duly
executed Will dated 11.02.1974 by his father as plaintiff
himself insisted defendants to act upon Will. Plaintiff
has no locus-standi to challenge Will after lapse of forty
years from its date of execution. The plaintiff is trying to
11 O.S.No.16665/2005
take unfair advantage. The defendant No.6 has
purchased southern portion of ‘B’ schedule property in
the year 2005 from defendant No.2. Later on, defendant
No.2 denied to execute registered sale deed in favour of
defendant No.6 as per terms and conditions of
Registered sale agreement, defendant No.6 filed suit for
specific performance in O.S. No. 3659/2008. Later on,
defendant No.2 settled matter before Lok Adalath after
receipt of additional sale consideration price. Ramaiah
and his family members provoked plaintiff, his wife and
children to act illegally against beneficiaries under
registered Will dated 11.02.1974. The defendant No.6
taken possession of property from defendant No.2 in
pursuance of settlement arrived in O.S.No.3659/2008.
The plaintiff intended to buy suit ‘B’ schedule property
from defendant No.2, later on, plaintiff was not ready to
buy it as per prevailing market value and offered to
purchase for throw away price, hence, defendant No.2
refused to sell property to plaintiff and his wife. With an
ulterior motive and to cause loss to defendant No.6
plaintiff filed present false suit. The plaintiff, his SPA
holder, who is his wife and his children colluded with
12 O.S.No.16665/2005
outsiders also defendant No.2 and his family members
making hectic efforts to grab property of defendant
No.6. The defendant No.6 has sought for counter claim
in respect of southern portion of ‘B’ schedule property
and thereby sought for permanent injunction,
restraining plaintiff, defendant No.1 and 2 and their
men, agents, henchmen or anybody acting on their
behalf either from encroaching purchased property or
interfering with possession and enjoyment of counter
claim schedule property. On these grounds, the
defendants have requested to dismiss the suit and
decree counter claim of defendant No.6.
6. On the basis of above pleadings of both parties,
this court has framed the following :-
ISSUES
1. Whether the plaintiff proves that the
schedule properties are ancestral joint
family properties?
2. Whether the defendants prove that
schedule ‘B’ property is the self
acquired property of Muniswamappa
and he has executed a Will
bequeathing the schedule ‘B’ property
13 O.S.No.16665/2005in favour of defendant No.2 and late M.
Nanjappa?
3. Whether the plaintiff proves that he is
entitled for a share in schedule
properties? If so, what is the extent of
share?
4. Whether the plaintiff is entitled for the
relief of permanent injunction as
sought for?
5. What order or decree?
ADDITIONAL ISSUES DATED 19.08.2016
1. Whether the defendants prove that this
suit is not maintainable in view of the
plaintiff filing the suit in
O.S.No.767/2000?
ADDITIONAL ISSUES DATED 20.06.2018
2. Whether the defendant No.6 proves
that he is in possession of the property
described in the schedule to the
counter claim?
3. Whether the defendant No.6 further
proves that the plaintiff and the
persons claiming through or under him
are interfering with his possession over
the property described in the schedule
to the counter claim?
14 O.S.No.16665/2005
4. Whether the defendant No.6 is entitled
for the relief of permanent injunction
as prayed in the plaint?
7. To substantiate the case of the plaintiff, the
Special Power of Attorney Holder of plaintiff examined
herself as PW1 and produced in 16 documents as
Exs.P1 to Ex.P.16. The General Power of Attorney
Holder of defendant No.6 examined himself as PW1 and
produced in 279 documents as Exs.D.1 to Ex.D.279.
8. I have heard the arguments of learned counsel
for plaintiff and learned counsel for defendants and I
have perused the case records.
9. My answers to the above issues are as under-
ISSUE No.1 – In the affirmative;
ISSUE No.2 – In the negative;
ISSUE No.3 – In the affirmative;
ISSUE No.4 – In the affirmative;
Add.ISSUE No.1 – In the negative;
Add.ISSUE No.2 – In the negative;
Add.ISSUE No.3 – In the negative;
Add.ISSUE No.4 – In the negative;
ISSUE No.5 – As per final order,
for the following –
15 O.S.No.16665/2005
REASONS
10. ISSUE No.1 :- In schedule to plaint, suit
schedule ‘A’ and ‘B’ properties have been described with
necessary numbers, extent and boundaries. According
to original plaintiff, suit schedule mentioned properties
are ancestral and joint family properties of himself and
defendants No.1 to 5. In para – 5 of plaint, Genealogy of
family of plaintiff and defendants No.1 to 5 has been
given in detail. According to pleadings and Genealogy of
family, plaintiff, deceased M. Nanjappa, defendant No.1
and defendant No.2 are children of deceased propositors
of family R. Munishamappa and his wife Smt.
Siddamma. Defendants No.3 to 5 are sons of deceased
M. Nanjappa.
11. According to original plaintiff ‘A’ schedule
property was grant land in favour of Ramanna, who is
father of R. Munishamappa. It is further case of
plaintiff that, ‘B’ schedule property is joint family
property of himself and defendants No.1 to 5. The
defendants No.2 to 4 in their written statement have
contended, suit ‘B’ schedule property is self acquired
16 O.S.No.16665/2005
property of R. Munishamappa, he purchased it under
registered sale deed. The defendants No.5 to 7 have also
contended, suit ‘B’ schedule property is absolute
property of R. Munishamappa, he being absolute owner
of said property bequeathed it in favour of defendant
No.2 and late M. Nanjappa. As already discussed,
looking into pleadings and evidence of parties, they are
not in dispute that, suit ‘A’ schedule property is joint
family property of plaintiff and defendants No.1 to 5.
12. It is argued on behalf of learned counsel for
contesting defendants that, as per documents produced
by plaintiff himself, it is clearly mentioned, suit ‘B’
schedule property is absolute property of deceased R.
Munishamappa. In Ex.P.11 which is survey enquiry
register, it is mentioned, husband of Smt. Siddamma,
who is R. Munishamappa as holder of property executed
registered Will dated 13.12.1974. It is further argued
that, R. Munishamappa being absolute owner of ‘B’
schedule property executed registered Will, that itself
sufficient, suit ‘B’ schedule property is absolute and self
acquired property of R. Munishamappa.
17 O.S.No.16665/2005
13. It is worth to note here that, in Ex.P.11 itself,
it is mentioned husband of Smt. Siddamma executed
registered Will and he had inherited property from his
father. Entry to that effect itself goes against contention
of defendants. It is to be noted here, no document
produced to show Munishamappa had purchased suit
‘B’ schedule property. If really, as contended by
defendants, propositus R. Munishamappa had
purchased suit ‘B’ schedule property out of his own
income, there was no hurdle for contesting defendants
to produce sale deed pertaining to ‘B’ schedule property
which said to have been in name of R. Munishamappa
before Court. Even in Ex.D.9 which is certified copy of
registered Will dated 11.02.1974, it is only mentioned,
executant Munishamappa as absolute owner. It is not
mentioned in said document, how Munishamappa had
acquired suit ‘B’ schedule property. In case, suit ‘B’
schedule property was purchased by R. Munishamappa
under registered Sale deed, in Will date of sale deed and
registration number of sale deed would have been
clearly mentioned by executant in document. It is
material to note here that, defendants are unable or
18 O.S.No.16665/2005
tried their best to produce documents, which are
revenue records to show, based on registered sale deed,
name of Munishamappa mutated to suit B schedule
property.
14. It is worth to note here that, Ex.D.18 and D.19
are certified copies of mortgage deeds dated 25.01.1933
and 08.05.2022 executed by Ramanna and his son and
some others by availing loan. It is argued on behalf of
learned counsel for defendants, mortgage deed is in
respect of ‘A’ schedule property. On the other hand, it
is argued on behalf of learned counsel for plaintiffs that,
looking into boundaries of property mentioned in these
documents, same pertains to suit ‘B’ schedule property.
Fact to be noted here, in these documents it is
mentioned Ramanna who is father of R. Munishamappa
had executed mortgage deeds as per Ex.D.18 and D.19.
It is not case and to that effect material placed before
court that, properties mentioned in these mortgage
deeds which are situated at Palace Guttahalli are
different from suit schedule mentioned properties.
19 O.S.No.16665/2005
15. It is worth to note here that, P.W.1 who is
Special Power of Attorney Holder of plaintiff, in her
cross-examination has admitted, it is not mentioned in
Exs.P.10 to P.14 as ancestral properties. It is further
admitted by P.W.1, in Ex.P.14 it is mentioned property
confirmed in name of Smt. Siddamma as holder based
on registered Will. The P.W.1 in her cross-examination
is further deposed, she did not know as to whether ‘A’
schedule property was granted in favour of father of
Munishamappa. It is further say of P.W.1 in her cross-
examination, there is no documents to show Ramanna
purchased suit ‘B’ schedule property. Further it is
admitted by P.W.1, after death of Ramanna ‘B’ schedule
property was purchased by Munishamappa.
16. It is to be noted here, mere admission of P.W.1
that, after death of Ramanna, ‘B’ schedule property was
purchased by R. Munishamappa is not sufficient to say
defendants have established suit ‘B’ schedule property
was purchased by deceased R. Munishamappa. As
contended by defendants, if really suit ‘B’ schedule
property was purchased by R. Munishamappa after
20 O.S.No.16665/2005
death of Ramanna, registered sale deed in respect of
suit ‘B’ schedule property in the name of R.
Munishamappa would have placed before court by these
defendants.
17. It is to be noted here, defendants have
contended, already there was partition during lifetime of
R. Munishamappa. Had it be so, defendants have
produced documents or any arrangement between
family members so as to say suit ‘B’ schedule property
was considered as absolute property of R.
Munishamappa, as such it was not included in alleged
family partition. Even there is no revenue records
placed before court to say based on alleged partition
alleged to have been effected during lifetime of R.
Munishamappa, respective sharers have mutated their
names to properties fallen to their shares in alleged
partition.
18. The General Power of Attorney Holder of
defendant No.6 who examined as D.W.1 has denied
that, as per records suit schedule properties are
ancestral properties of plaintiff. As already discussed,
21 O.S.No.16665/2005
in order to show suit ‘B’ schedule property was
purchased by R. Munishamappa after death of
Ramanna and based on such sale deed name of R.
Munishamappa mutated in revenue records to suit ‘B’
schedule property neither alleged sale deed in the name
of R. Munishamappa nor revenue mutation effected
based on such sale deed are placed before court. In
view of these facts, it can be safely concluded that,
defendants have failed to establish suit ‘B’ schedule
property was absolute property of R. Munishamappa.
Once, it is not established by defendants, suit ‘B’
schedule property was purchased by R. Munishamappa
after death of his father Ramanna, necessary inference
would be, suit ‘A’ and ‘B’ schedule properties are
ancestral and joint family properties of plaintiff and
defendants No.1 to 5. Hence, I answer Issue No.1 in
the affirmative.
19. ISSUE No.2 :- Will said to have been executed
by deceased Munishamappa in respect of suit ‘B’
schedule property has been produced as per Ex.D.9
before court. Admittedly, original Will not produced by
22 O.S.No.16665/2005
defendants. In this regard, it is material to note
evidence of General Power of Attorney Holder of
defendant No.6 who examined as D.W.1, in his cross-
examination has deposed, defendant No.6 has seen Will
before purchase of property. It is further stated by
D.W.1, Will was handed over to defendant No.6 by
defendant No.2 – Srinivasamurthy. Then it is not
explained by defendants why original Will not placd
before court. According to defendants, suit ‘B’ schedule
property mutated in revenue records as per Will dated
11.02.1974 executed by Munishamappa in favour of
defendant No.2 and deceased Nanjappa and same is
through plaintiff himself.
20. It is further contention of defendants, original
plaintiff had knowledge about duly executed Will. The
original plaintiff himself instead defendants to act upon
Will. In this regard, the learned counsel for defendant
No.6 has drawn attention of court to Ex.P.11, Survey
Enquiry Register wherein in column No.6 it is
mentioned, Rajanna who is original plaintiff was
present. In Column No.13, it is mentioned, title
23 O.S.No.16665/2005
confirmed in the name of Smt. Siddamma W/o.
Munishamappa as per registered Will dated 13.12.1974.
Further, learned counsel for defendant No.6 has drawn
attention of court to Ex.P.14 or Ex.D.26 wherein in
Column No.4, it is mentioned, original plaintiff M.
Rajanna was present. The learned counsel for defendant
No.6 has argued that, in earlier proceedings also it was
held Will Ex.D.9 was proved. In this regard, the learned
counsel for defendant No.6 has drawn attention of
Court to Ex.D.3 which is certified copy of order on I.A.
in O.S.No.767/2000. It is observed in said order by
court that, Will has been acted upon by beneficiaries of
Will, there is no need for defendants to prove Will. In
Ex.D.24 also which is property card pertaining to suit
‘B’ schedule property, name of deceased Smt.
Siddamma entered as holder of property based on Will.
Fact to be noted here, while cross-examining of P.W.1, it
is suggested by learned counsel for defendants that, it
was original plaintiff himself had produced Will before
Revenue Authorities.
21. In the light of above facts and evidence small
but material point that would arises for consideration is
24 O.S.No.16665/2005
that, based on above contentions can court form an
opinion that, Will proved in accordance with law. Fact
to be noted here, P.W.1 in her cross-examination has
clearly denied which is her husband original plaintiff
had produced Will before Revenue Authorities.
22. It is settled law that, unless and until Will is
proved in accordance with law, it is always disputed
document. The learned counsel for plaintiff has rightly
relied upon the decision of Hon’ble Supreme Court
reported in (2017) 1 SCC 257 in case of Ramesh
Verma (Dead) through Legal Representatives Vs.
Lajesh Saxena (Dead) by Legal Representatives and
Another, wherein it is held that, “A Will like any other
document is to be proved in terms of the provisions of
Section 68 of the Evidence Act and the Succession Act,
1925. The propounder of the Will is called upon to show
by satisfactory evidence that the Will was signed by the
testator, that the testator at the relevant time was in a
sound and disposing state of mind, that he understood
the nature and effect of the disposition and put his
signature to the document on his own free will and the
25 O.S.No.16665/2005
document shall not be used as evidence until one
attesting witness at least has been called for the purpose
of proving its execution. This is the mandate of Section 68
of the Evidence Act and the position remains the same
even in a case where the opposite party does not
specifically deny the execution of the document in the
written statement.”
23. It is argued by learned counsel for defendant
No. 6 that, Will is registered one and same is not
challenged since 1974 that itself sufficient to say due
execution of Will has been accepted by original plaintiff
and other family members. It is also well settled
proposition of law that, mere registration of Will does
not dispense with it is proof in accordance with law. On
this proposition of law, the learned counsel for plaintiffs
has rightly relied upon the decision of Hon’ble Supreme
Court reported in (2015) 8 SCC 615 in case of
Jagdish Chand Sharma Vs. Narain Singh Saini
(Dead) through Legal Representatives and Others,
wherein it is held that, “In the evidentiary context
Section 68 of the 1872 Act enjoins that if a document is
26 O.S.No.16665/2005
required by law to be attested, it would not be used as
evidence unless one attesting witness, at least, if alive,
and is subject to the process of the court and capable of
giving evidence proves its execution. The proviso attached
to this section relaxes this requirement in case of a
document, not being a Will, but has been registered in
accordance with the provisions of the Registration Act,
1908 unless its execution by the person by whom it
purports to have been executed, is specifically denied.”
24. These statutory provisions, thus, make it
incumbent for a document required by law to be
attested to have its execution proved by at least one of
the attesting witnesses, if alive, and is subject to the
process of the court conducting the proceedings
involved and is capable of giving evidence. This rigor is,
however, eased in case of a document also required to
be attested but not a Will, if the same has been
registered in accordance with the provisions of the
Registration Act, 1908 unless the execution of this
document by the person said to have executed it denies
the same. In any view of the matter, however, the
27 O.S.No.16665/2005
relaxation extended by the proviso is of no avail qua a
Will. The proof of a Will to be admissible in evidence
with probative potential, being a document required by
law to be attested by two witnesses, would necessarily
need proof of its execution through at least one of the
attesting witnesses, if alive, and subject to the process
of the court concerned and is capable of giving evidence.
25. Section 71 provides, however, that if the
attesting witness denies or does not recollect the
execution of the document, its execution may be proved
by the other evidence. The interplay of the above
statutory provisions and the underlying legislative
objective would be of formidable relevance in evaluating
the materials on record and recording the penultimate
conclusions.
26. As already discussed, original Will not placed
before Court, it is also not explained who had
possession of original Will. On careful perusal of
contents of Ex.D.9 signatures of witnesses and scribe
not forthcoming. D.W.1 in his cross-examination has
clearly admitted, he did not know who are witnesses to
28 O.S.No.16665/2005
Will -Ex.D.9. There is specific allegation in plaint that,
Will set up by defendants seems to be created at their
instance as it was Munishamappa died on 30.04.1974,
around 2 months after alleged execution of Will. It is
further specifically contended by plaintiff, at the time of
death of Munishamappa, he was aged about 86 years
he was paralyzed and suffering from Asthama, blood
pressure and aged related problems like blurring of
Vision, lack of Comprehension and lack of hearing.
27. The D.W.1 in his cross-examination has
deposed, he did not know as to whether at the time of
death of Munishamappa had bad hearing and blurring
of eye vision. It is denied by D.W.1 that, at the time of
his death mental and physical conditions of
Munishamappa was not so good. It is well settled
proposition of law that, person who claiming under Will
has to prove due execution of Will in accordance with
law and to remove all suspicious circumstances
attached to its due execution. Herein the case,
defendant No.2 being beneficiary under Will has not
examined before Court.
29 O.S.No.16665/2005
28. The defendant No.6 who claiming that, he
purchased portion of suit ‘B’ schedule property from
defendant No.2 also not examined before the court. It is
power of attorney holder of defendant No.6 who
examined before the court as D.W.1. The D.W.1 has
specifically stated, he did not know about health
condition of deceased Munishamappa at the time of his
death. D.W.1 has clearly admitted, after 47 days from
execution of Will Munishamappa died. Under these
circumstances, burden is on defendant No.2 or
defendant No.6 to establish due execution alleged Will
as per Ex.D.9 as provided under Law. In this regard,
the learned counsel for plaintiffs has rightly relied upon
the decision of Hon’ble Supreme Court reported in
(2010) 5 SCC 274 in case of S.R. Srinivasa and
Others Vs. S. Padmavathamma, wherein it is held
that, “1) generally, a Will has to be proved like any other
document, the test to be applied being the usual test of
the satisfaction of the prudent mind in such matters. As
in the case of proof fo other documents, so in the case of
proof of Wills, one cannot insist on proof with
mathematical certainty. 2) Since Section 63 of the
30 O.S.No.16665/2005
Succession Act requires a Will to be attested, it cannot be
used as evidence until, as required by Section 68 of the
Evidence Act, one attesting witness at least has been
called for the purpose of proving its execution if there be
an attesting witness alive, and subject to the process of
the court and capable of giving evidence. 3) Unlike
other documents, the Will speaks from the death of the
testator and therefore the maker of the Will is never
available for deposing as to the circumstances in which
the Will came to be executed. This aspect introduces an
element of solemnity in the decision of the question
whether the document propounded is proved to be the
last Will and testament of the testator. Normally, the onus
which lies on the propounder can be taken to be
discharged on proof of the essential facts which go into
the making of the Will. 4) Cases in which the execution of
the Will is surrounded by suspicious circumstances stand
on a different footing. A shaky signature, a feeble mind,
and unfair and unjust disposition of property, the
propounder himself taking a leading part in the making of
the Will under which he receives a substantial benefit
and such other circumstances raise suspicion about the
31 O.S.No.16665/2005
execution of the Will. That suspicion cannot be removed
by the mere assertion of the propounder that the Will
bears the signature of the testator or that the testator
was in a sound and disposing state of mind and memory
at the time when the Will was made, or that those like
the wife and children of the testator who would normally
receive their due share in his estate were disinherited
because the testator might have had his own reasons for
excluding them. The presence of suspicious
circumstances makes the initial onus heavier and
therefore, in cases where the circumstances attendant
upon the execution of the Will excite the suspicion of the
court, the propounder must remove all legitimate
suspicions before the document can be accepted as the
last Will of the testator. 5) it is in connection with wills,
the execution of which is surrounded by suspicious
circumstances that the test of satisfaction of the judicial
conscience has been evolved. That test emphasises that
in determining the question as to whether an instrument
produced before the court is the last Will of the testator,
the court is called upon to decide a solemn question and
by reason of suspicious circumstances the court has to be
32 O.S.No.16665/2005
satisfied fully that the will has been validely executed by
the testator. 6) if a caveator alleges fraud, undue
influence, coercion, etc. in regard to the execution of the
Will such pleas have to be proved by him, but even in the
absence of such pleas, the every circumstances
surrounding the execution of the Will may raise a doubt
as to whether the testator was acting of his own free will.
And then it is a part of the initial onus of the propounder
to remove all reasonable doubt in the matter.” The
registration of the Will by itself was not sufficient to
remove the suspicion. The first appellate court also
notices that even in cases where the execution of the Will
is admitted, at least one attesting witness of the Will has
to be examined to receive the Will in evidence.”
29. The learned counsel for plaintiffs has further
relied upon another decision of Hon’ble High Court of
Madras in SA No.241 of 2015 in case of Malliga Vs.
P. Kumaran, wherein it is held that, “A close look at all
the above judgments makes it very clear that
examination of attesting witness is mandatory only
where the genuineness or validity of the Will is
33 O.S.No.16665/2005
questioned. In cases where the Will has not been
specifically denied or it has been admitted, it has been
held that examination of attesting witnesses to a Will is
unnecessary. A Will shall not be used as evidence until it
is proved in the manner prescribed under Section 68 of
the Evidence Act and this position cannot be diluted even
if the opposite party has not specifically denied the
execution of the Will. (See: Babu Singh V. Ram Shai
(2208) 14 SCC 754). therefore a Will required by law to
be attested shall not be used as evidence until one
attesting witness at least (if he be alive) has been called
for proving its execution. The above is the mandate
contained in the main body of Section 68 of the Act and
no exception has been carved out for a Will which is not
specifically disputed or expressly admitted.”
30. The learned counsel for plaintiff has further
relied upon the another decision reported in Hon’ble
Supreme Court dated 15.05.2007 in case of Benga
Behera and Another Vs. Braja Kishore Nanda and
others, wherein it is held that, “The registration of the
said Will was sought to be proved by calling the
34 O.S.No.16665/2005
document in question wherein the contents of the
document registered were noted. We may deal with the
contention of the learned counsel in respect of application
of Section 71 of the Indian Evidence Act a little later. But,
in our opinion, P.W.-4 cannot be considered to be a
witness to execution of the will as he had nothing to do
therewith. He comes into the picture only because an
endorsement was found on the Xerox copy of the Will
which, in our opinion, is of doubtful origin, keeping in
view the fact that the same did not find a mention in the
certified copy thereof. His evidence, in our opinion, would,
thus, not be of much significance. Section 71 of the Act
provides for one of the exceptions where it is not possible
to strictly comply with the requirements of Section 68.
Sections 69, 70 and Section 71 are exceptions to Section
68. Section 69 provides for proof of a document where no
attesting witness is found. Section 70 provides for
admission of execution by party to attested document.
Section 71 deals with a situation where the attesting
witness denies or does not recollect the execution of the
document and only in that eventuality, the document’s
execution may be proved by other evidence. Section 71 of
35 O.S.No.16665/2005
the Evidence Act is in the nature of a safeguard to the
mandatory provisions of Section 68 of the Evidence Act,
to meet a situation where it is not possible to prove the
execution of the will by calling the attesting witnesses,
though alive.”
31. On the other hand, the learned counsel for
defendant No.6 has relied upon the decision of Hon’ble
Supreme Court reported in AIR 1953 SCR 232 dated
07.11.1952 in case of Raj Bajrang Bahadur Singh
Vs. Thakurain Bakhtraj Kuer, wherein it is held that,
“true intention of the testator has to be gathered not by
attaching importance to isolated expressions but by
reading the Will as a whole.”
32. The learned counsel for defendant No.6 has
relied upon another decision of Hon’ble High Court of
Karnataka dated 09.06.2023 in RSA No.6025/2011
in between DR. H.M. Jayanandaswamy and his Lrs’
Vs. H.M. Vijayakumar and Others, wherein it is held
that, “on the contrary, there are sufficient materials
placed by defendant No.1 by leading evidence of witness,
who categorically stated about the good health of the
36 O.S.No.16665/2005
father of the plaintiff at that time and defendant No.1
being the propounder of the Will and onus of proving the
Will being on the propounder has proved by placing
sufficient material that when the Will was executed in
favour of defendant No.1, the father of plaintiff and
defendants was in a sound disposing state of mind. The
suspicious circumstances would be like the genuineness
of the signature of the testator, condition of the testator’s
mind, dispositions made in the Will being unnatural,
improbable or unfair in the light of relevant circumstances
or there might be other indications in the Will to show
that the testator mind was not free and in the absence of
any specific suspicious circumstance having pleaded in
the plaint, the propounder has established the due
execution and attestation of the Will as required under
Section 63 (c) of the Indian Succession Act and Section 68
of the Indian Evidence Act.”
33. In view of principles laid down in above
decisions herein the case, admittedly, witnesses to Will
have not been examined before the court. The D.W.1
has clearly stated, he did not know names persons who
are witnesses to Will. Further it is not mentioned in
37 O.S.No.16665/2005
Ex.D.9 which are other properties held by late
Munishamappa. It is not established before the court
by examining witnesses that, at the time of execution of
Will as per Ex.D.9 executant Munishamappa was in fit
state of mind.
34. As already discussed, defendants have failed
to establish suit ‘B’ schedule property is absolute
property of Munishamappa. Under these circumstance,
it is irresistible conclusion that, defendants have failed
to prove that suit ‘B’ schedule property is absolute
property of Munishamappa and he has executed Will
and thereby bequeathed suit ‘B’ schedule property in
favour of defendant No.2 and deceased M. Nanjappa.
Hence, I answer Issue No.2 in the negative.
35. ADDITIONAL ISSUE NO.1 :- It is to be noted
there, this court by its order dated 03.11.2016 has
given findings on this additional issue and answered it
in negative. Hence, question of giving findings on this
issue once again does not arise. As this court already
answered said issue in negative, now, it is held that
defendants failed to prove, present suit is not
38 O.S.No.16665/2005
maintainable, in view of original plaintiff filing
O.S.No.767/2000. Hence, I answer Additional Issue
No.1 in the negative.
36. ADDITIONAL ISSUES No.2 AND 3 :- As these
issues are inter-related to each other and involves
common appreciation of facts and evidence on record,
findings on one issue are bearing on other issue, in
order to avoid repetition of facts and for convenience
sake, both issues are taken together for common
discussion.
37. The defendant No.6 has claimed, he is in
possession and enjoyment of Southern portion of suit
‘B’ schedule property based on compromise decree
passed in suit for specific performance filed by him
against defendant No.2. It is further contention that,
plaintiff and his family members never lived in suit ‘B’
schedule property and they have started living
Chikkabanavara, nearly 18 kms away from suit ‘B’
schedule property.
38. It is further contended by defendant No.6 that,
plaintiff has knowledge of registered sale agreement
39 O.S.No.16665/2005
dated 27.08.2005 executed by defendant No.2 in favour
of defendant No.6. Later on defendant No.2 denied to
executed registered sale deed in favour of defendant
No.6 as per terms of agreement of Will. Hence,
defendant No.6 filed suit for specific performance in
O.S.No. 3659/2008. Later on defendants No.2 and 6
have settled matter before Lok-Adalath wherein
defendant No.2 has received additional sale
consideration price on 14.12.2011.
39. It is worth to note here that, certified copy of
agreement of sale deed dated 27.08.2005 has been
produced as per Ex.D.39. Certified copy of agreement of
sale deed dated 28.11.2013 executed in favour of
defendant No.6 in respect of counter claim of suit
property has been produced as per Ex.D.40.
Encumbrance certificate has been produced as per
Ex.D.41. The defendant No.6 has further produced
water bills, electricity bills in respect of counter claim
schedule property as per Exs.D.45 to D.278. Based on
these documents, it is contention of defendant No.6
that, he is in possession and enjoyment of counter claim
schedule property and plaintiff and persons claiming
40 O.S.No.16665/2005
through him are illegal interfering in possession and
enjoyment of defendant No.6 over said property.
40. The learned counsel for plaintiff has argued
that, brother of D.W.1 has appeared as advocate for
defendant No.2 in suit. Thereafter, in order to show
defendant No.2 is in possession of suit property
document have been created by them. In this regard,
the learned counsel for plaintiffs has drawn attention of
court to cross-examination of D.W.1, wherein he has
stated, present suit has been filed by plaintiff on
16.06.2005. It is further admitted by D.W.1 that, his
brother Dhanaraj- Advocate appeared before the court
on behalf of defendant No.2. It is further sated that, on
08.08.2005, Dhanaraj appeared before the court on
behalf of defendant No.2 on same day lease deed as per
Ex.D.32 was entered in respect of suit ‘B’ schedule
property which is within 19 days from entering into
lease deed. The D.W.1 has further sated, suit in
O.S.No.3659/2008 filed by defendant No.6 in favour of
defendant No.2 was entered into compromise. It is
further say of D.W.1 that, he did not know as to
41 O.S.No.16665/2005
whether at the time of compromise sale consideration
amount was given either through cheque or cash.
41. It is to be noted here, as already discussed,
Munishamappa had no absolute authority or right to
execute alleged Will in favour of defendant No.2 and
deceased M. Nanjappa. Further alleged Will said to
have been executed by deceased Munishamappa in
favour of defendant No.2 and deceased M. Nanjappa not
proved in accordance with law. Further it is not proved
that, Munishamappa was absolute owner of suit
property. Once due execution of Will not proved in
accordance with law and Munishamappa had no
absolute right over suit ‘B’ schedule property, it is to be
considered as joint family property of plaintiff and
defendants No.1 to 5. Once due execution to Will not
proved in accordance with law, it shall have to be
presumed Munishamappa died intestate in respect of
suit ‘B’ schedule property. If that is so, defendant No.2
has no right or interest in suit property so as to execute
sale deed in respect of extent of counter claim schedule
property in favour of defendant No.6. It is settled law
proposition of law that, all sharers got joint possession
42 O.S.No.16665/2005
over joint family property. Under these circumstance,
defendant No.6 cannot claim, he has in lawful
possession and enjoyment of counter claim schedule
property and plaintiff and persons claiming through him
are illegally interfering with possession and enjoyment
of counter claim property.
42. The learned counsel for defendant No.6 has
relied upon decision of Hon’ble High Court of Allahabad
in Matters Under Article 227 No.6346 of 2022 in
case of State of U.P. and Others Vs. Shri Raj Veer
Singh, wherein it is held that, “in order to curb uncalled
and frivolous litigation court have to ensure that there is
no incentive or motive for uncalled litigation. Imposition of
heavy cost would also control unnecessary litigation.”
43. Further learned counsel for defendant No.6
has relied upon decision of Hon’ble High Court dated
02.06.2000 in RFA No.520/1995 in case of
Muniswamy (Dead) by LRs. Vs., Venkataswamy,
wherein it is held that, “the restriction which are
express would rendered no difficulty. However, while
implead restriction if any are to be read into terms of
43 O.S.No.16665/2005
documents should be so clear and unambiguous to
suggest one and only inference in favour of restrictive
covenant set up or pleaded otherwise, if stipulations are
ambiguous, susceptible to contrary or alternative
meaning, it would not be permissible to read into said
stipulation by inference restrictive covenant.”
44. As discussed above, defendants failed to
establish, suit filed by plaintiff is frivolous one. Further,
defendants failed to establish due execution of Will
relied by them and authority of Executant to execute
alleged Will in favour of defendant No.2. In view of
these facts, principles laid down in above decisions as
relied by counsel for defendant No.6 not aptly applicable
to facts and circumstance of case on hand. Hence, I
answer Additional Issues No.2 and 3 in the negative.
45. ISSUES No.3, 4 AND ADDITIONAL ISSUE
No.4 :- As these issues are inter-related to each other
and involves common appreciation of facts and evidence
on record, findings on one issue are bearing on other
issue, in order to avoid repetition of facts and for
44 O.S.No.16665/2005
convenience sake, both issues are taken together for
common discussion.
46. As already discussed, plaintiffs able to prove
suit ‘A’ and ‘B’ schedule properties are joint family
properties of plaintiffs and defendants No.1 to 5. On the
other hand, defendants have failed to prove
Munishamappa was absolute owner of suit ‘B’ schedule
property and he purchased it out of his own income and
by exercising his exclusive right he legally and validly
executed Will as per Ex.D.9 in favour of defendant No.2
and deceased Nanjappa. Added to it, alleged execution
of Will by Munishamappa not established by defendants
as required under law. Once, defendants failed to
establish due execution of Will as required under law
question of limitation as contended by defendants does
not arise. As already discussed, it is well settled
proposition of law unless and until Will is proved in
accordance with law it is always disputed document.
47. The defendant No.2 has no exclusive right over
suit ‘B’ schedule property so as to sell portion of suit ‘B’
schedule property in favour of defendant No.6. In view
45 O.S.No.16665/2005
of these facts, defendant No.6 cannot claim his right
and possession over portion of suit ‘B’ schedule property
based on compromised decree entered between himself
and defendant No.2 in suit for specific performance of
contract. No doubt it is true, defendant No.6 produced
some documents to show he is in possession of portion
of ‘B’ schedule property as mentioned in counter claim
but fact remains that, plaintiffs being joint owners of
portion of said property, they have got their possession
over every inch of property said to have been purchased
by defendant No.6. No injunction can be granted against
plaintiffs who are co-owners or sharers of suit ‘B’
schedule property.
48. It is fact that, there is no dispute plaintiff and
defendants No.1 to 5 are heirs of deceased
Munishamappa. Once, Will not proved and it is not
established Munishamappa had absolute right over suit
‘B’ schedule property, it shall have to be presumed he
died intestate. As per Section 8 of Hindu Succession
Act, plaintiff, deceased Nanjappa and defendants No.1
and 2 being Class-I heirs of deceased Munishamappa
they entitled for equal share in suit ‘A’ and ‘B’ schedule
46 O.S.No.16665/2005
properties by metes and bounds. Hence, I answer
Issues No.3 and 4 in the affirmative and additional
Issue No.4 in the negative.
49. ISSUES No.5 :- In view of the above said
findings on Issue Nos. 1 to 4 Addl. Issue No.1 to 4, I
proceed to pass the following:-
ORDER
The suit of the plaintiffs is hereby
decreed with costs.
Plaintiff No.1(a) to 1(d) being legal heirs
of deceased original plaintiff – Rajanna M.,
they together entitled for 1/4th share suit ‘A’
and ‘B’ schedule mentioned properties by
metes and bounds.
Each Defendant No.1 and defendant
No.2 are entitled for 1/4th share in suit ‘A’
and ‘B’ schedule mentioned properties by
metes and bounds.
Defendants No. 3 to 5 and defendant
No.7 being legal heirs of deceased M.
47 O.S.No.16665/2005Nanjappa, they altogether entitled for 1/4th
share in suit ‘A’ and ‘B’ schedule mentioned
properties by metes and bounds.
It is declared that, compromise decree
in O.S.No.3659/2008 and subsequent
transaction does not binds plaintiffs
undivided 1/4th share in suit ‘B’ schedule
mentioned property.
Compromise decree in O.S.No.3659/
2008 and subsequent execution of sale deed
in respect of portion of suit ‘B’ schedule
property in favour of defendant No.6 is
binding only undivided share of defendant
No.2 in suit ‘B’ schedule property.
The defendants, their men, agents,
servants or anybody claiming under them
are hereby restrained by way of permanent
injunction from alienating suit schedule
mentioned properties in favour of 3rd persons
or creating charge over it.
48 O.S.No.16665/2005
The defendants No.1 and 2 are hereby
restrained by way of permanent injunction
from dispossessing plaintiffs’ from their joint
possession over suit ‘A’ and ‘B’ schedule
mentioned properties.
Counter claim of defendant No.6 as
prayed in his counter claim plaint is hereby
dismissed.
Draw preliminary decree accordingly.
It is to be noted here, the Hon’ble
Supreme Court in decision reported in 2022
SCC Online SC 737 in case of Kattukandi
Edathil Krishnan and another Vs.
Kattukandi Edathil Valsan and others,
wherein it is held that, once preliminary
decree passed by the court, the court should
proceed with the case for drawing up the
final decree suo-motu. After passing
preliminary decree court has to list matter
for taking steps under Order 20 Rule 18 of
CPC. The court should not adjourned the
49 O.S.No.16665/2005matter sine die. There is no need to file
separate final decree proceedings.
In view of mandate of Hon’ble Supreme
Court as referred above, office is directed to
draw preliminary decree on or before
13.03.2025 and put up case file before the
court on 13.03.2025 and keep certified copy
of preliminary decree passed in present suit
with file so as to proceed to take steps under
Order 20 Rule 18 of CPC and to draw up
final decree.
Parties to the suit are directed to
appear before the court on 13.03.2025.
(Dictated to the Stenographer directly on computer, typed &
computerized by her, corrected and signed by me and then pronounced
in the open Court on this the 5th day of January, 2025).
(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
50 O.S.No.16665/2005
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:-
Examined on:
P.W.1 : Saraswathamma 15-02-2012
2. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:-
Ex.P.1 : Special power of attorney.
Ex.P.2 : Khatha Extract.
Ex.P.3 : Encumbrance certificate.
Ex.P.4 : Khatha Extract.
Ex.P.5 : Khata certificate.
Ex.P.6 : Encumbrance certificate.
and P.7
Ex.P.8 : Tax paid receipts.
Ex.P.9 : Death certificate of R. Munishamappa
dated 30.04.1974.
Ex.P.10 : Filed Book of detail mapping city of
Bangalore.
Ex.P.11 : Copy of survey enquiry Registrar.
Ex.P.12 : Copy of property card.
Ex.P.13 : Filed Book of detail mapping city of
Bangalore.
Ex.P.14 : City Survey Enquiry Register.
Ex.P.15 : Copy of decree in O.S.No.3659/2008.
Ex.P.16 : copy of plaint in O.S.No.3659/2008.
3.LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:-
Examined on:
D.W.1 : Arunkumar H.S. 24-10-2019
51 O.S.No.16665/2005
4.LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:-
Ex.D.1 : Photos.
Ex.D.2 : Certified copy of plaint in
O.S.No.767/2000.
Ex.D.3 : Certified copy orders in O.S.No.767/2000.
Ex.D.4 : Certified copy of plaint in
O.S.No.3427/2011.
Ex.D.5 : Certified copy of IA.
Ex.D.6 : Voter ID.
Ex.D.7 : GPA.
Ex.D.8 : General Power of attorney duly executed by
defendant No.7.
Ex.D.9 : Certified copy of the registered Will dated
11.02.1974 with typed contents.
Ex.D.10 : Original demand notice dated 20.05.2010 to
pay tax from 1997-2018.
Ex.D.11 : Original tax paid receipt dated 22.05.2010
from 1997 to 2018.
Exs.D.12 : Original tax paid receipts (4 in Nos) from
to D.15 2008 to 2012.
Ex.D.16 : Original Uttara Patra of BBMP granted
permission to avail water facility.
Ex.D.17 : Original due paid receipt
dated 14.07.2010.
Ex.D.18 : Certified copy of letter dated 21.01.1933.
Ex.D.18(a) : Typed copy of Ex.D.18.
Ex.D.19 : Adhara Baddipathra Krama
dated 08.05.1922.
Ex.D.19(a) : Typed copy of Ex.D.19.
Ex.D.20 : Postal cover issued by Government office
with letter dated 20.08.2015.
Ex.D.21 : Vyalikaval Police Endorsement
dated 16.01.2017.
52 O.S.No.16665/2005
Ex.D.22 : Certified copy of I.A. U/O.39 R 2A of CPC
with filed in Misc. No.198/2013.
Ex.D.23 : Certified copy of orders in petition under
Sec.144 of CPC in Misc. No.198/2013.
Ex.D.24 : Property land issued as per Will.
Ex.D.25 : Tenants extract old book of detail mapping
city of Bangalore.
Ex.D.26 : City Summary enquiry report.
Ex.D.27 : Certified copy of order sheet
of Misc.No.744/2016.
Ex.D.28 : Memorandum of petition/application
under Order 29 Rule 2A of CPC with
affidavit.
Ex.D.29 : Memo for withdrawal filed
in O.S.No.3427/2011.
Ex.D.30 : Judgment passed in O.S.No.3947/2009.
Ex.D.31 : Decree passed in O.S.No.3947/2009.
Ex.D.32 : Lease Agreement dated 08.08.2005.
Ex.D.33 : Death certificate of Sadananda.
Ex.D.34 : Telephone bill issued by Bangalore
and D.34(a) Telecom District.
Ex.D.35 : Receipts (20 nos)
and D.35(a)
Ex.D.36 : Order sheet in O.S.No.767/2000.
Ex.D.37 : Certified copy of plaint
in O.S.No.767/2000.
Ex.D.38 : Memo of Valuation Slip filed
in O.S.No.767/2000.
Ex.D.39 : Sale agreement dated 27.08.2005.
Ex.D.40 : Court sale deed.
Ex.D.41 : Encumbrance Certificate.
Ex.D.42 : Order pronounced in Misc.No.198/2013.
53 O.S.No.16665/2005
Ex.D.43 : Certified copy of plaint
in Misc.No.198/2013.
Ex.D.44 : Certified copy of statement of objection in
Misc.No.198/2013.
Exs.D.45 : Water Bills, receipts and electricity bills
to D.279 and receipts.
(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
54 O.S.No.16665/2005
03.02.2025.
Judgment not ready,
steno is on leave,
matter adjourned.
Call on 05.02.2025.
XXVIII ACC & SJ, Bengaluru.
05.02.2025.
Judgment pronounced in open Court
as under: – [vide orders separately]
ORDER
The suit of the plaintiffs is hereby
decreed with costs.
Plaintiff No.1(a) to 1(d) being legal heirs
of deceased original plaintiff – Rajanna M.,
they together entitled for 1/4th share suit ‘A’
and ‘B’ schedule mentioned properties by
metes and bounds.
Each Defendant No.1 and defendant
No.2 are entitled for 1/4th share in suit ‘A’
and ‘B’ schedule mentioned properties by
metes and bounds.
Defendants No. 3 to 5 and defendant
No.7 being legal heirs of deceased M.
Nanjappa, they altogether entitled for 1/4th
share in suit ‘A’ and ‘B’ schedule mentioned
properties by metes and bounds.
55 O.S.No.16665/2005
It is declared that, compromise decree
in O.S.No.3659/2008 and subsequent
transaction does not binds plaintiffs
undivided 1/4th share in suit ‘B’ schedule
mentioned property.
Compromise decree in O.S.No.3659/
2008 and subsequent execution of sale deed
in respect of portion of suit ‘B’ schedule
property in favour of defendant No.6 is
binding only undivided share of defendant
No.2 in suit ‘B’ schedule property.
The defendants, their men, agents,
servants or anybody claiming under them
are hereby restrained by way of permanent
injunction from alienating suit schedule
mentioned properties in favour of 3rd persons
or creating charge over it.
The defendants No.1 and 2 are hereby
restrained by way of permanent injunction
from dispossessing plaintiffs’ from their joint
possession over suit ‘A’ and ‘B’ schedule
mentioned properties.
Counter claim of defendant No.6 as
prayed in his counter claim plaint is hereby
dismissed.
Draw preliminary decree accordingly.
56 O.S.No.16665/2005
It is to be noted here, the Hon’ble
Supreme Court in decision reported in 2022
SCC Online SC 737 in case of Kattukandi
Edathil Krishnan and another Vs.
Kattukandi Edathil Valsan and others,
wherein it is held that, once preliminary
decree passed by the court, the court should
proceed with the case for drawing up the
final decree suo-motu. After passing
preliminary decree court has to list matter
for taking steps under Order 20 Rule 18 of
CPC. The court should not adjourned the
matter sine die. There is no need to file
separate final decree proceedings.
In view of mandate of Hon’ble Supreme
Court as referred above, office is directed to
draw preliminary decree on or before
13.03.2025 and put up case file before the
court on 13.03.2025 and keep certified copy
of preliminary decree passed in present suit
with file so as to proceed to take steps under
Order 20 Rule 18 of CPC and to draw up
final decree.
Parties to the suit are directed to
appear before the court on 13.03.2025.
XXVIII ACC & SJ, Bengaluru.