Bangalore District Court
Vijaya vs Madamma on 2 April, 2026
KABC0A0015322007
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 2nd day of April, 2026.
PRESENT:
Sri BALAPPA APPANNA JARAGU, B.Sc., LL.M.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.25594/2007
PLAINTIFF : Smt. Vijaya,
D/o. Late Chikka Abyanna,
W/o. Nagaraj C.,
Aged about 43 years,
Residing at No.486, 1st Main,
7th 'A' Cross, Vijayanagar II Stage,
Bangalore - 560 010.
(By Sri Sunil R., Advocate)
-VERSUS-
DEFENDANTS : 1. Smt. Madamma,
W/o. Late Chikka Abyanna,
Aged about 70 years.
2. Smt. Sharadamma,
W/o. Late Chikka Abyanna,
Aged about 60 years.
Cont'd..
2 O.S.No.25594/2007
3. Mahesh,
S/o. Late Shamanna,
Aged about 35 years.
4. Smt. Rathnamma,
W/o. Raghu,
Aged about 49 years.
5. Smt. Bhagya,
Since dead by her LR's.
5(a). Mohan,
S/o. Late Annayappa,
Aged about 68 years.
5(b). Anup,
S/o. Mohan and Smt. Bhagya,
Aged about 31 years.
5(c). Smt. Akshaya,
D/o. Mohan and Smt. Bhagya,
Aged about 29 years.
Defendants No.5(a) to 5(c) are
residing at No.453, 'A' 11th Main
Road, RMV Rajamahal Villas
Extension, Sadhashivanagar,
Bengaluru - 560 080.
6. Smt. Leela,
W/o. Devaraj,
Aged about 45 years.
7. Smt. Prabha,
W/o. Jayachandra,
Aged about 36 years.
8. C. Narayanan @ Babu,
Since dead by his Lrs;
8(a). Smt. Kruparani,
W/o. Late Narayana @ Babu,
Aged about 46 years.
8(b). Master Manith,
S/o. Late Narayana @ Babu,
Aged about 11 years,
Since minor, represented by
3 O.S.No.25594/2007
his natural Guardian and
mother defendant No.8(a).
8(c). Kumari Prathiksha,
D/o. Late Narayana @ Babu,
Aged about 6 years,
Since minor, represented by
his natural Guardian and
mother defendant No.8(a).
All are residing at No.486,
1st Main, 7th Cross, Vijayanagar
2nd Stage, Bangalore - 560 040.
(D.5 and 8 : Dead)
(D.1 by Sri O.K. Harish, D.6 by Sri H.R.
Sreepada, D.3 by Sri T. Seshagiri Rao,
(D.8(a) to 8(c) by Sri Shanmukhappa,
Advocates)
(D.5(a) to 5(c), D.7 : Ex-parte)
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Date of Institution of the Suit : 15-03-2007
Nature of the Suit (Suit on : Partition Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
Date of the commencement : 09-07-2018
of recording of the evidence
Date on which the Judgment : 02-04-2026
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 19years, --month, 17days.
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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 relief of partition and separate
4 O.S.No.25594/2007
possession of her 1/4th share in suit schedule
mentioned properties by metes and bounds. The
plaintiff has further sought for directing the defendants
to put the plaintiff in separate possession of her 1/4th
share in suit schedule properties and grant of such
other reliefs.
2. The case of the plaintiff in brief is as under:-
That, defendant No.1 is first wife and defendant
No.2 is second of wife of Chikkabyanna. Plaintiff and
deceased Shamanna are children of Chikkabyanna
through defendant No.1. Defendants No.4 to 8 are
children of Chikkabyanna through defendant No.2. Late
Chikkabyanna during his lifetime acquired suit
schedule properties and he died intestate. Suit schedule
properties are joint family properties of plaintiff and
defendants, all legal heirs of Chikkabyanna are in joint
possession of the same. Plaintiff has been requesting
defendant No.1, defendant No.2 and defendant No.8 to
effect partition in suit properties and allot her share in
suit properties. The plaintiff has also issued legal notice
to defendants calling upon them to effect partition in
5 O.S.No.25594/2007suit properties and allot her legal share. In spite
receiving notice, defendants neither chosen to effect
partition in suit properties nor replied for the same. On
these pleadings, the plaintiff has prayed to decree suit
as prayed in plaint.
3. In response to the service of suit summons,
defendants No.1 to 4, 6 and 8 have tendered their
appearance before the court through their respective
counsels and contested the case. The defendant No.1,
6, 8, 8(a) to 8(c) have filed their written statement.
During pendency of suit, original defendants No.5 and 8
are died, by filing necessary application their LR’s are
brought on record. Even after service of the summons,
the defendant No.5(a) to (c) and defendant No.7 have
not tendered their appearance before the court through
their counsels and contested the suit, consequently
they have placed ex-parte.
4. The contents of written statement of
defendant No.1 in brief is as under :-
It is admitted that, plaintiff and deceased
Shamanna are children of defendant No.1 through
6 O.S.No.25594/2007Chikkabyanna. It is also admitted, suit schedule
properties are acquired by late Chikkabyanna and he
died intestate. It is further admitted, plaintiff and
defendants are in joint possession and enjoyment of
suit properties being legal heirs of late Chikkabyanna.
It is only denied, plaintiff has demanded her share in
suit properties and issued legal notice. It is specifically
contended, defendant No.1 being legally wedded wife of
late Chikkabyanna, she is entitled for her 1/4th share
in suit schedule properties. On these grounds,
defendant No.1 requested the court to determine her
share in suit properties.
5. The contents of written statement of
defendant No.6 in brief is as under :-
That, plaintiff and defendants are legal heirs of
late Chikkabyanna except these persons no other
persons are there to succeed estate of late
Chikkabyanna. All the parties are entitled to succeed
and have 1/8th share in suit schedule properties. On
these grounds, defendant No.6 requested the court to
allot her 1/8th share in suit schedule properties by
metes and bounds.
7 O.S.No.25594/2007
6. The contents of written statement of
defendants No.8, 8(a) to 8(c) in brief is as under :-
The suit filed by plaintiff is not maintainable in
law and on facts and same is liable to be dismissed.
Plaintiff is not in possession of any of suit schedule
properties. As such, plaintiff has not paid proper court
fees. Suit of the plaintiff is not maintainable for non-
joinder of necessary parties. Suit of the plaintiff is
barred by law of limitation. Chikkabyanna executed a
registered Will dated 25.09.1986 disposing of all his
properties in favour of his children and his wives. All
the beneficiaries under Will dated 25.09.1986 taken
their respective shares. Under said Will, site No.2
measuring 40X 30 feet bequeathed to plaintiff and she
has sold same long back. Plaintiff after selling site
allotted to her under Will purchased site in Papireddy
palya. Thereby plaintiff has accepted share given to her
by her father under Will dated 25.09.1986, therefore
suit filed by plaintiff is frivolous and mischievous. The
plaintiff has deliberately suppressed execution of Will
dated 25.09.1986 since there is no joint family
8 O.S.No.25594/2007properties available for partition, plaintiff cannot
maintain present suit. It is denied that, late
Chikkabyanna died instate. The plaintiff having taken
benefit under Will dated 25.09.1986 has come up with
false suit claiming share in properties which exclusively
belonging to defendant No.8. The plaintiff suppressing
Will executed by Chikkabyanna issued legal notice,
same has been suitably replied. There is no cause of
action for the plaintiff to file present suit.
Chikkabyanna bequeathed property No.26, Old
Khaneshumari No.28, 6th Cross, Hosahalli
(Vijayanagar), measuring 5335 square feet in favour of
defendant No.1. The defendant No.1 gifted said property
in favour of defendant No.3 by executing gift deed dated
27.11.2003. Defendant No.3 is son of Shamanna, who
is own brother of plaintiff. In gift deed there is specific
reference to Will dated 25.09.1986 executed by
Chikkabyanna. The plaintiff and other sisters have sold
properties bequeathed to them under Will in favour of
Sri S.T. Jayaram under sale deed dated 30.10.1992. In
said sale deed, there is specific reference to Will dated
25.09.1986 executed by Chikkabyanna. Plaintiff has
9 O.S.No.25594/2007suppressed fact of selling of property in favour of S.T.
Jayaram. The plaintiff deliberately not disclosed
property bearing No.15, formally No.8 out of Sy.No.213,
situated at 3rd Main Road, Hosahalli Village,
Vijayanagar, Bengaluru in schedule to plaint and what
is included in a portion given to defendant No.8 and his
mother. Defendant No.3 executed Joint Development
Agreement in M/s. Kriparaj Developers in respect of
property bearing No.26, Old No.28 and said developers
have constructed nearly 20 flats and those flats were
sold by defendant No.3. Under Will dated 25.09.1986
two wives and children of Chikkabyanna got properties
and said Will is acted upon. Hence, suit for partition
filed by plaintiff is devoid of merits. On these grounds,
defendants requested to dismiss suit filed by plaintiff.
7. On the basis of above pleadings of both parties,
this court has framed the following :-
ISSUES
1. Whether the plaintiff proves that the
suit properties are the joint family
properties liable for partition?
10 O.S.No.25594/2007
2. Whether the plaintiff is entitle for
1/4th share?
3. Whether the deed of cancellation of
Will dated 25.09.1986 is obtained
playing fraud from defendant No.8
against Chikkabyamma?
4. Whether the plaintiff proves that the
Will dated 25.09.1986 is created
obtained by playing fraud?
5. Whether the plaintiff proves that the
sale deed dated 05.07.1989 created by
defendant No.8 in favour of Bramh
developer is Ayavaharika not binding
on the plaintiff?
6. Whether the suit is value properly and
court fee paid is sufficient?
7. Whether suit is time barred?
8. Whether the plaintiff is estopped from
claiming share in the properties as she
being a benefic under the Will dated
25.09.1986 and all the properties were
disposed off to plaintiff and defendant
through the said Will?
9. What order or decree?
11 O.S.No.25594/2007
ADDITIONAL ISSUES DATED 28.03.2019
1. Whether the defendant No.8 proves
that late Chikkabayyanna while he was
in a sound disposing state of mind has
duly executed the Will dated
25.09.1986?
ADDITIONAL ISSUES DATED 04.07.2023.
1. Whether defendant proves that suit is
barred for mis-joinder and non-joinder
of necessary party?
2. Whether defeating No.8 proves that
suit is barred by limitation?
3. Whether the plaintiff proves that the
suit properties are the joint array
properties liable for partition?
4. Whether the plaintiff is entitled for
1/4th share?
5. Whether the deed of cancellation of
Will dated 25.09.1986 is obtained by
playing fraud from defendant No.8
against Chikkabyamma?
6. Whether the plaintiff proves that Will
dated 25.09.1986 is created and
obtained by playing fraud?
7. Whether the plaintiff proves that the
sale deed dated 05.07.1989 created by
12 O.S.No.25594/2007
defendant No.8 in favour of Bramh
Devra is Ayavaharika not binding on
the plaintiff?
8. Whether the suit is valued property
and court fee is paid is sufficient?
9. Whether suit is time barred?
10.Whether the plaintiff estopped from
claiming share in the properties as she
being a benefic under the Will dated
25.09.1986 and all the properties were
disposed off to plaintiff and defendant
through the said Will?
8. To substantiate the case of the plaintiff, the
plaintiff examined himself as PW1 and produced in 53
documents as Exs.P1 and Ex.P.53. The defendant
No.8(a) examined himself as D.W.2 and one attesting as
D.W.2 and produced in as Exs.D.1 to D.8.
9. I have heard the arguments of learned counsel
for plaintiff and learned counsel for defendant No.8 and
I have perused the case records.
10. My answers to the above issues are as under-
ISSUE No.1 – In the negative;
ISSUE No.2 – In the negative;
13 O.S.No.25594/2007
ISSUE No.3 – Struck off;
ISSUE No.4 – Struck off;
ISSUE No.5 – Struck off;
ISSUE No.6 – In the affirmative;
ISSUE No.7 – In the affirmative;
ISSUE No.8 – In the affirmative;
ADDL.ISSUE No.1 – In the affirmative;
dated 28.03.2019
ADDL.ISSUE No.1 – In the negative;
dated 04.07.2023
ADDL.ISSUE No.2 – In the affirmative;
dated 04.07.2023
ADDL.ISSUE No.3 – In the negative;
dated 04.07.2023
ADDL.ISSUE No.4 – In the negative;
dated 04.07.2023
ADDL.ISSUE No.5 – In the negative;
dated 04.07.2023
ADDL.ISSUE No.6 – In the negative;
dated 04.07.2023
ADDL.ISSUE No.7 – Does not arise.
dated 04.07.2023
ADDL.ISSUE No.8 – In the affirmative;
dated 04.07.2023
ADDL.ISSUE No.9 – In the affirmative;
dated 04.07.2023
14 O.S.No.25594/2007
ADDL.ISSUE No.10 – In the affirmative;
dated 04.07.2023
ISSUE No.9 AND
ADDL.ISSUE No.11 – As per final order,
dated 04.07.2023
for the following –
REASONS
11. ISSUES NO.1, 2, ADDITIONAL ISSUES No.3
TO 6, ADDITIONAL ISSUE NO.10 DATED 04.07.2023,
ADDITIONAL ISSUE No.1 DATED 28.03.2019 AND
ISSUES No.8 :- 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.
12. On going through pleadings and evidence of
parties, facts which are no more in dispute are that,
defendants No.1 and 2 are wives of late Chikkabyanna.
The plaintiff and deceased Shamanna are children of
late Chikkabyanna through his first wife, who is
defendant No.1. The defendants No.4 to 8 are children
of late Chikkabyanna through his second wife, who is
15 O.S.No.25594/2007
defendant No.2. It s also no more in dispute that,
Chikkabyanna died 21.03.1987. Death certificate of
Chikkabyanna has been produced as per Ex.P.22.
13. It is specifically pleaded in para – 5 of plaint
and para – 3 of examination-in-chief of plaintiff, who is
examined as P.W.1 that, Chikkabyanna during his
lifetime acquired suit schedule properties are joint
family properties, she herself and defendants being legal
heirs of late Chikkabyanna are in joint possession and
enjoyment of same.
14. It is definite case of plaintiff that,
Chikkabyanna died intestate without partitioning suit
schedule properties between his legal heirs. On the
other hand, contesting defendant No.8 and his legal
heirs have specifically contended that, Chikkabyanna
during his lifetime has executed a registered Will dated
25.09.1986 disposing of his properties in favour of his
children and his wives and all the beneficiaries under
Will dated 25.09.1986 have taken their respective
shares in properties held by late Chikkabyanna. It is to
be noted here, original registered Will dated 25.09.1986
16 O.S.No.25594/2007
has been produced before court as per Ex.D.1. As per
contents of Ex.D.1, it is clearly mentioned, late
Chikkabyanna had acquired properties under registered
partition deed dated 13.07.1960.
15. It is vehemently argued on behalf of learned
counsel for plaintiff that, late Chikkabyanna during his
lifetime executed a registered Will dated 25.02.1972
under which he has equally divided properties held by
him between his legal heirs. Ex.D.1 is disputed Will. It
is further argued that, Will not filed along with written
statement.
16. In order to prove due execution of Will, one of
the attesting witnesses to Will namely Srinivas S., has
been examined before court as D.W.1. The D.W.1 in his
examination-in-chief has deposed, Chikkabyanna had
executed Will dated 25.09.1986, thereby bequeathed
properties owned by him, in his favour of his wives and
children. It is further stated by D.W.1 that, said Will
prepared by Chikkabyanna through Advocate Sri B.K.
Bopaiah. The D.W.1 has identified his signature to Will
which is marked as Ex.D.1(a).
17 O.S.No.25594/2007
17. The D.W.1 in his cross-examination had
deposed, during month of September 1986,
Chikkabyanna was admitted hospital for treatment. It is
further say of D.W.1 that, contents of Will not read over
to him. It is also deposed by D.W.1 in his cross-
examination that, C. Narayanan @ Babu book him St.
Martha’s Hospital wherein Chikkabyanna was taking
treatment. Thereafter, C. Narayanan @ Babu took his
father to Srirampura Sub-Registrar Office.
18. It is further deposed by D.W.1 that, by holding
hands of Chikkabyanna, they took him to Sub-Registrar
Office. It is clearly admitted by D.W.1 that, before his
death, Chikkabyanna was suffering from Kidney failure,
cardio-respiratory infections. Chikkabyanna has not
informed D.W.1 that, he is canceling Will executed by
him.
19. It is further deposed by D.W.1 that,
Chikkabyanna was in hospital, he was totally tired and
his health condition was not normal. It is further say of
D.W.1 in his cross-examination, even in Sub-Registrar
Office, Chikkabyanna was sitting as he was fully tired
18 O.S.No.25594/2007
and he was not in position to speak. It is admitted by
D.W.1 in his cross-examination that, Chikkabyannawas
not put his Thumb impression to documents in his
presence. Further it is admitted, it is not informed to
Chikkabyanna about contents of document.
20. It is pertinent to note here that, defendants
No.8(a), who is wife of late C. Narayanan @ Babu has
been examined before court as D.W.2. The D.W.2 also in
her evidence before court has deposed, her father-in-law
viz., late Chikkabyanna had executed registered Will
dated 25.09.1986 disposing all his properties in favour
his children and his wives. Further it is deposed, all
beneficiaries under Will have taken their respective
shares including plaintiff. The D.W.2 in cross-
examination has deposed, her husband has informed
her how and who had executed Will as per Ex.D.1.
21. It is also deposed by D.W.2 that, her husband
informed her how Will come to his hand and how it was
informed to family members. D.W.2 has further
deposed, Will as per Ex.D.1 was with her husband. She
did not know, when Will come to the hands of her
19 O.S.No.25594/2007
husband first time. It is also deposed, during his
lifetime Chikkabyanna has executed only one Will which
is as per Ex.D.1.
22. It is further deposed by D.W.2 in her cross-
examination that, since date of execution of Will, till its
production before court, it was in the custody of her
husband and thereafter it is with her. It is further say
of D.W.2 that, in the 1987 Will come to the hands of her
husband. She did not know as to whether her husband
gave copies of Will to plaintiff and other defendants. The
D.W.2 has admitted, Chikkabyanna has not
discriminated between children through his first wife
and his second wife.
23. Based on evidence of evidence of D.W.1 and
D.W.2 as referred above, it is argued by learned counsel
for plaintiff that, how soever alleged said to have
executed, but same is not proved in accordance with
relevant provisions of law. Further it is argued,
cancellation of earlier Will is also not proved as required
under law as per provisions Section 63 of India
Succession Act and Section 68 of Indian Evidence Act.
20 O.S.No.25594/2007
24. The learned counsel for plaintiff has further
argued that, any Will to be valid in the eye of law has to
suffice the conditions as enumerated under Section 63
of the Indian Succession Act. The testator shall sign or
shall affix his mark to the Will, or it shall be signed by
some other person in his presence and by his direction.
The signature or mark of the testator, or the signature
of the person signing for him, shall be so placed that it
shall appear that it was intended thereby to give effect
to the writing as a Will. The Will shall be attested by two
or more witnesses, each of whom has seen the testator
sign or affix his mark to the Will or has seen some other
person sign the Will, in the presence and by the
direction of the testator, or has received from the
testator a personal acknowledgment of his signature or
mark, or the signature of such other person; and each
of the witnesses shall sign the Will in the presence of
the testator, but it shall not be necessary that more
than one witness be present at the same time, and no
particular form of attestation shall be necessary”.
25. The learned counsel for plaintiff has further
submitted that, in the instant case, alleged Will in
21 O.S.No.25594/2007
question dated 25.09.1986, which is produced and
marked as Ex.D.1 by the defendants not even a single
rule as stipulated under Section 63 of the Indian
Succession Act, 1925 has been fulfilled, for it to be
considered a valid Will in the eye of law. As it is a settled
principle of law that, one of the attesting witnesses to
the Will must depose to the veracity and the legality of
the Will and in order to do the same, the defendants
called upon one of the attesting witnesses namely
Srinivas S. S/o. Subbann to give evidence for the same.
It is further argued by learned counsel for the plaintiff
that, said witness has deposed, “it was late Narayana
Babu, who had called him and took him to St. Martha’s
hospital situated in Gandhinagar and there he saw the
executor of the Will i.e., late Chikkabayanna taking
treatment in the hospital. Further he states that, it was
Narayan Babu, who has asked Mr. Srinivas to sign on
the Will and that, he signed it.
26. The learned counsel for plaintiff has further
argued that, Ex.P.8 is khata extract pertaining to suit
properties for the year 2007. In said document, still
name of Chikkabyanna is shown as owner of suit
22 O.S.No.25594/2007
properties. Exs.P.50 to P.53 are of the year 1992. In
said documents, name of Chikkabyanna is shown. In
Ex.P.50 there is signature of Chikkabyanna.
27. Based on above documents, it is argued by
learned counsel for plaintiff that, admittedly
Chikkabyanna died on 21.07.1987 and these
documents are of the year 1992. How come signature of
Chikkabyanna, in these documents which are
subsequent to his death. It is further argued on behalf
learned counsel for plaintiff that, alleged Will as per
Ex.D.1 is created and forged one.
28. In order to show that, in the year 1986 during
month of February and March, Chikkabyanna was
admitted hospital, medical bills have been produced as
per Exs.P.15 to P.19 and death certificate of
Chikkabyanna has been produced as per Ex.P.20 and
death report of Chikkabyanna has been produced as per
Ex.P.21.
29. In death certificate, it is mentioned cause of
death of Chikkabyanna was due to Cardio-respiratory
infections. The plaintiff has also produced telephone
23 O.S.No.25594/2007
bills, electricity bills and notice issued by Municipal
under Section 147 of Karnataka Municipal Corporation
Act as per Exs.P.37 to P.39. These are the documents
subsequent to death of Chikkabyanna. These
documents are issued in the name of Chikkabyanna.
30. The learned counsel for plaintiff has further
argued that, late Chikkabyanna has been an intelligent,
vigilant and a cautious litigant all his life. He used to file
cases, attend them on a regular basis and also used to
sign the order sheets, vakalatnama’s and affidavits on a
regular basis and has never, not even once in any f the
documents has ever put his thumb impression instead
of signing them. It is further submission of counsel for
plaintiff, this case be seen in various Court documents,
which are produced and marked as Exs.P.3 to P.7 and it
can be clearly seen that, in an order sheet of an Appeal
before Karnataka Appellate Tribunal at Bangalore,
which is marked as Ex.P.6, that he has signed on the
order sheet on 10.02.2026, which is six months prior to
the Will in question. This raises a simple question that,
why would a person with such cautiousness put his
thumb impression, when all his life being a cautious
24 O.S.No.25594/2007
litigant, he always used to sign on the documents. It is
very strange and a difficult fact to digest that, a person
with such experience would put his thumb impression
instead of signing the Will. This clearly shows that, the
Will has been executed in contravention to Section 61(1)
(a) and Section (1)(b) of the Indian Succession Act,
1925. Therefore, there is no room for doubt that, the
said Will in question has not fulfilled any of the rules
stipulated under Section 63 of the Indian Succession
Act, 1925 and thus is an invalid Will in the eye of law.
Also the burden of proving the Will is on the person
either relying or propounding on the Will and it is
crystal clear from the evidence that, the defence has
failed to prove the same.
31. Based on contents of Ex.D.1 wherein
Chikkabyanna put his thumb impression, it is argued
that, Ex.D.1 is created by defendant No.8. The learned
counsel for plaintiff has further argued that, any Will
that is obtained by fraud, coercion or importunity,
taking the free Will or free agency of the testator is a
void Will. Section 61 of the Indian Succession Act,
25 O.S.No.25594/2007
prescribes certain illustrations showing in what
situations, a Will must be considered void. Will obtained
by fraud, coercion or importunity.- A Will or any part of
a Will, the making of which has been caused by fraud or
coercion, or by such importunity as takes away the free
agency of the testator, is void.
32. Further it is argued on behalf of learned
counsel for plaintiff, defendant No.8 has failed to prove
due execution of Ex.D.1 with supports of evidence of
D.W.1, who is one of the attesting witness to alleged
Will. It is further argued that, as admitted by D.W.1 and
as per documents at relevant point of time,
Chikkabyanna was not keeping good health. It is not
established by defendant No.8 at the time execution of
alleged Will as per Ex.D.1, Chikkabyanna was having fit
state of mind. Thumb impression on document by
Chikkabyanna who always used to sign all documents
itself create doubt with regard to due execution of
Ex.D.1 by Chikkabyanna. The subsequent document
which are executed after death of Chikkabyanna
wherein there is signature of Chikkabyanna and name
26 O.S.No.25594/2007
of Chikkabyanna itself shown alleged Will as per Ex.D.1
is not acted upon.
33. On the other hand, learned counsel for
defendant No.8 has argued that, Will as per Ex.D.1
dated 25.09.1986 is acted upon. Subsequent to
execution of Will as per Ex.D.1, plaintiff and other
family members who are beneficiaries under Will have
executed sale deed dated 30.10.1992 in respect of suit
property No.19, out of Sy.No.213, Re-Sy.No.484/1,
situated at K.P. Agrahara, Bengaluru in favour of S.T.
Jayaram. The plaintiff is also party to the said sale
deed. In sale deed as per Ex.D.2 it is clearly mentioned
about Will dated 25.09.1986 executed by
Chikkabyanna. Further it is argued that, under Will as
per Ex.D.1, property measuring 40X30 feet, bequeathed
to plaintiff. The plaintiff has sold said property long
back. Thereby plaintiff accepted share gives to her
father under Will dated 25.09.1986.
34. Contesting defendants have contended,
plaintiff after sale of site allotted her under Will dated
25.09.1986 has purchased site in Papireddy palya. It is
27 O.S.No.25594/2007
pertaining to note here that, gift deed dated 27.03.2003
executed by defendant No.1 in favour of defendant No.3
has been produced as per Ex.D.3. General Power of
Attorney dated 22.12.2003 executed by defendant No.3
in favour of M/s. Kriparaj Developers has been
produced as per Ex.D.4. Certified copy of sale deed
dated 25.07.2005 executed by defendant No.3 in favour
of Smt. Sulochana G. Yavagal has been produced as per
Ex.D.5. Sale deed dated 08.09.2005 executed by
defendant No.3 in favour M/s. Kriparaj Developers has
been as per Ex.D.6.
35. In view of above mentioned facts, whether
plaintiff had knowledge about Will as per Ex.D.1 or not
to be looked into. It is fact that, court by its order dated
29.10.2010 has allowed, application filed by plaintiff
seeking amendment to the pleadings. Said order was
challenged by defendant No.8 by filing Writ Petition
No.33391/2010 before Hon’ble High Court of
Karnataka. The Hon’ble High Court set aside order
passed by this court dated 23.10.2010.
28 O.S.No.25594/2007
36. On careful perusal of examination-in-chief of
P.W.1, she tried to incorporate some pleadings in
respect of which amendment application was dismissed.
Further it is to be noted here, this court is order dated
28.03.2019 has ordered paragraph No.7, 8, 12 and 18
of examination-in-chief of P.W.1 are expunged.
37. It is material to note here that, in para – 11 of
her chief, P.W.1 has stated, it was only after she
demanded her share for partition, she come to know
that, defendants started allegedly claiming, their father
had executed a second Will. Further it is deposed by
P.W.1, it was only then it become clear to her that,
defendant No.8 in connivance of other defendants was
trying to set up a Will dated 09.07.1986 allegedly
stating that, same was executed by Sri Chikkabyanna.
38. It is pertinent to note here that, when P.W.1
has pleaded in her evidence, she come to know
defendants started claiming Chikkabyanna executed
second Will, it can be inferred plaintiff was aware about
earlier Will of the year 1972. It is clearly deposed by
P.W.1 in her cross-examination that, she is very much
29 O.S.No.25594/2007
aware about Will of the year 1972. On careful perusal of
plaint averments, nowhere in plaint, plaintiff has
pleaded about earlier Will. It is simply pleaded by
plaintiff that, Chikkabyanna acquired suit properties
and he died intestate.
39. The plaintiff in para – 9 of her examination
has stated, defendant No.8 was instrumental in another
transaction dated 30.10.1992 in favour of Sri S.T.
Jayaram. In para -10 of her examination-in-chief has
deposed by P.W.1 that, at that time she was being
nursed for post delivery care by her mother and
defendant No.8 requested to her to sign sale deed and
informed she cannot come to Sub-Registrar Office with
small child. It further say of P.W.1 that, after two days
of execution of sale deed, defendant No.8 paid sum of
Rs.15,000/- saying that, it was share of plaintiff in said
transaction.
40. It worth to note here that, what all stated by
P.W.1 in her examination-in-chief as referred above,
said evidence is without pleadings. It is well settled
proposition of law that, evidence cannot be led on facts
30 O.S.No.25594/2007
that has not been pleaded. In absence of specific
pleadings, evidence adduced by party cannot be
considered. No evidence could be led beyond pleadings.
The P.W.1 in her cross-examination has pleaded
ignorance about sale of property No.19 as per Ex.D.2.
Ex.P.1 is Will dated 25.02.1972. Ex.P.2 is cancellation
of Will dated 23.09.1986. Ex.D.1 is Will dated
25.09.1986.
41. Admittedly, sale deed as per Ex.D.2 dated
30.10.1992 is subsequent to Ex.D.1. Name of plaintiff
shown in Ex.D.2. As already discussed, plaintiff has
deposed in her examination-in-chief without pleading in
plaint about said sale deed. The P.W.1 has clearly
stated in her evidence that, at that time she was with
her mother at given spot as she was being nursed for
post delivery care.
42. Herein the case, defendant No.1 being mother
of plaintiff has supported case of plaintiff. If that is so,
mother of plaintiff was also aware about sale deed as
per Ex.D.2 executed by plaintiff. Even if it is accepted
for time being, plaintiff has signed sale deed and she
31 O.S.No.25594/2007
was not in position to read and understand contents of
sale deed but fact remains that, execution of sale as per
Ex.D.2 was well within knowledge of plaintiff and her
mother, who is defendant No.1.
43. Gift deed dated 27.11.2003 executed by
defendant No.1 in favour of defendant No.3 in respect of
property bearing Corporation No.26, situated at
Hosahalli, Bengaluru has been produced as per Ex.D.3.
The plaintiff in her cross-examination has pleaded
ignorance with regard to gift deed as per Ex.D.3
executed by her mother defendant No.1 in favour of
defendant No.3. The plaintiff has also pleaded ignorance
that, in Ex.D.3 it is mentioned about Will dated
25.09.1986. On careful perusal of gift deed, it is clearly
mentioned about Will dated 25.09.1986 executed by
Chikkabyanna during his lifetime.
44. General Power of Attorney dated 22.12.2003
and absolute sale deed dated 08.09.205 executed by
defendant No.3 in favour of M/s. kriparaj Developers
have been produced as per Exs.D.4 and D.6
respectively. In these documents also, it is clearly
32 O.S.No.25594/2007
mentioned, Chikkabyanna during his lifetime has
executed Will dated 25.09.1986.
45. It is fact that, mother of plaintiff and son of
brother of plaintiff in their documents as per Exs.D.3, 4
and D.6 have clearly admitted about Will dated
25.09.1986 executed by late Chikkabyanna. It is the
one of the main grounds, on which defendant No.8 is
seeking dismissal of suit is that, plaintiff signed sale
deed dated 30.10.1992. It is extracted from cross of
D.W.2 that, in case anybody undergone tubectomy
operation she has to take at least 4 to 5 months rest.
The D.W.2 has further deposed, in the supervision of
her husband transaction as per Ex.D.2 – sale deed took
place.
46. It is worth to note here that, even it is
accepted at the time of execution of Ex.D.2 – sale deed,
plaintiff was being nursed for post delivery care, fact
remains that, she received her share of sale
consideration amount and she was aware about
execution of sale deed by herself and other family
members in favour S.T. Jayaram. The contention of
33 O.S.No.25594/2007
plaintiff that, she was not aware about contents of
Ex.D.2 – sale deed wherein it is mentioned about Will
dated 25.09.1986 from date of execution of deed till
filing of suit itself very unreasonable. No prudent man
after execution deed keep quite for all these years till
filing of suit without knowing contents of deed.
47. Fact to be noted here, plaintiff has claimed
ignorance about Ex.D.3 to D.6. Admittedly these
documents or properties mentioned in these documents
not challenged in present suit. The P.W.1 has pleaded
ignorance as to whether beneficiaries under Will as per
Ex.D.1 who received properties under Will have sold
properties and developed the same.
48. It is fact that, defendant No.3 entered into
General Power of Attorney and sale deed in favour of M/
s. Kriparaj Developers as per Exs.D.4 and D.6. The
plaintiff has pleaded ignorance as to whether there exist
apartment in property gifted by defendant No.1 to
defendant No.3. Plaintiff further deposed, there might
be five kilometers distance between her house and said
apartment. In further cross-examination, it is deposed
by P.W.1 that, property in which apartment is existed is
34 O.S.No.25594/2007
not included in present suit. It is very much clear that,
property gifted by defendant No.1 in favour of defendant
No.3 acquired by defendant No.1 under Ex.D.1- Will
only.
49. In view of above mentioned facts, there is
sufficient material by way of documentary evidence, Will
as per Ex.D.1 dated 25.09.1986 is acted upon. The
learned counsel for plaintiff has argued that, in order to
establish election or waiver, it will have to be
established that, the party expressly or by its conduct
has acted in a manner.
50. The learned counsel for plaintiff in support of
his arguments has relied upon the decision of Hon’ble
Supreme Court reported in (2021) 10 SCC 401, in
case of Kalpraj Dharamshi and another Vs. Kotak
Investment Advisors Limited and another, wherein it
is held that, the party who benefits by the wavier, but
mere acts of indulgence will not amount to waiver; nor
may a party benefit from the waiver unless he has
altered his position in reliance on it. For considering, as
to whether a party has waived its rights or not, it will be
35 O.S.No.25594/2007
relevant to consider the conduct of a party. For
establishing waiver, it will have to be established, that a
party expressly or by its conduct acted in a manner,
which is inconsistent with the continuance of its rights.
However, the mere acts of indulgence will not amount to
waiver. A party claiming waiver. A party claiming waiver
would also not be entitled to claim the benefit of waiver,
unless it has altered its position in reliance on the
same. The person to be bound is fully cognizant of his
rights, and that being so, he neglects to enforce them,
or chooses one benefit instead of another, either, but
not both, of which he might claim. The person to be
bound is fully cognizant of his rights, and that being so,
he neglects to enforce them, or chooses one benefit
instead of another.
51. The learned counsel for plaintiff has further
relied upon decision of Hon’ble Supreme Court reported
in (2004) 8 SCC 229, in case f Krishna Bahadur Vs.
Purna Theatre and Others, wherein it is held that,
principle of wavier although is akin to the principle of
estoppel; the difference between the two, however, is
that whereas estoppel is not a cause of action; it is a
36 O.S.No.25594/2007
rule of evidence; waiver is contractual and may
constitute a cause of action; it is an agreement between
the parties and a party fully knowing of its rights has
agreed not to assert a right for a consideration. A right
can be waived by the party for whose benefit certain
requirements or conditions had been provided for by a
statute subject to the condition that no public interest
is involved therein. Whenever waiver is pleaded it is for
the party pleading the same to show that an agreement
waiving the right in consideration of some compromise
came into being. Statutory right, however, may also be
waived by his conduct.
52. The learned counsel for plaintiff has further
relied upon decision of Hon’ble High Court of South
Africa, in case No.1949/2005, Coppermoon Trading
13(PTY) LTD., Vs. The Government of The Province of
the Eastern Cape and another, wherein it is held
that, further, being a matter of intention, election or
waiver can only occur when the party concerned had
full knowledge of the legal right which he is said to have
waived, and of the facts under which, or from which, the
37 O.S.No.25594/2007
right arose. In the ordinary case of waiver, the facta
probanda would be full knowledge of the rights in
question and express waiver or waiver by plainly
inconsistent conduct, i.e., knowledge of a particular
kind and surrender of the right in a particular manner.
The conduct from which waiver is to be inferred, must
be unequivocal, “that is to say, consistent with no other
hypothese”.
53. On the other hand, learned counsel for
defendants No.8(a) to 8(c) has relied upon decision of
Hon’ble Supreme Court reported in AIR 2003 SCC 578
in case of B.L. Sreedhar and others Vs. K.M.
Munireddy (dead) and others, wherein it is held that,
the plaintiff is estoppel from questioning sale
transaction under sale deed for following reasons
though the plaintiff was not a party to several
proceedings referred to by the parties, conduct of the
plaintiff clearly shows in the background of evidence
tendered that he was conscious of the proceedings.
Estoppel is a rule of evidence and the general rule is
enacted in Section 115 of the Indian Evidence Act, 1872
(in short ‘Evidence Act‘) which lays down that when one
38 O.S.No.25594/2007
person has by his declaration, act or omission caused or
permitted another person to believe a thing to be true
and to act upon that belief, neither he nor his
representative shall be allowed in any suit or proceeding
between himself and such person or his representative
to deny the truth of that thing. Estoppel is a complex
legal notion, involving a combination of several essential
elements statement to be acted upon, action on the faith
of it, resulting detriment to the actor. Estoppel is often
described as a rule of evidence, as indeed it may be so
described. But the whole concept is more correctly
viewed as a substantive rule of law. Estoppel is different
from contract both in its nature and consequences. But
the relationship between the parties must also be such
that the imputed truth of the statement is a necessary
step in the constitution of the cause of action.
54. It is pertinent to note here that, the plaintiff
having aware about earlier Will dated 25.02.1972 and in
order to avoid to plead about subsequent Will as per
Ex.D.1 has intentionally not pleaded same in plaint.
Further, on careful perusal of examination-in-chief, it
39 O.S.No.25594/2007
indicates that, plaintiff having aware about execution of
sale deed as per Ex.D.2 and having received amount
under said sale deed, intentionally not mentioned said
document in plaint pleadings. It is not case of plaintiff
that, without informing nature of document her
signature was fraudulently obtained by defendant No.8
and no amount as sale consideration given to her.
55. The plaintiff having aware about her right in
respect of suit property has executed sale deed as per
Ex.D.2 which is subsequent to Will as per Ex.D.1.
Under these circumstances, execution of sale deed by
plaintiff can be construed as election or acquiescence
that, she having full knowledge of her right chooses to
benefit under Will.
56. Admittedly, Chikkabyanna died on
21.03.1987. In case Will as per Ex.D.1 not acted upon,
plaintiff may not kept quite for all these years without
seeking partition in suit properties. As already
discussed, taking into note of the way in which other
beneficiaries under Will have dealt with property given
40 O.S.No.25594/2007
to them under Will, it can be safely held Will as per
Ex.D.1 is definitely acted upon.
57. It is to be noted here, site No.2 measuring
30X40 feet bequeathed in favour of plaintiff under Will
as per Ex.D.1. It is also fact that, under said Will
properties were given to mother and other sisters of
plaintiff. They are the proper persons to say under what
circumstances plaintiff has joined as party to sale deed
as per Ex.D.2 and at least it is mother of plaintiff, who
is defendant No.1 proper person to say about plaintiff
due to delivery of child not able to come to Sub-
Registrar Office.
58. If contention of plaintiff were to be true, Will is
created one and same is not acted upon, the property
which is gifted by defendant No.1 to defendant No.3
under Ex.D.3 – gift deed and apartment constructed by
defendant No.3 in said property would also be joint
family property and same would have been included in
suit and definitely plaintiff in all probabilities would
have pleaded all these facts in plaint.
41 O.S.No.25594/2007
59. Nothing has been pleaded or deposed by
plaintiff about site No.2, measuring 30X40 feet given to
her under Will. In case, plaintiff has not taken such
property or it was not bequeathed to her under Will and
she has not sold same as contended by defendant No.8,
plaintiff would have produced material before the court
to show that, said property is still exists as joint family
property of plaintiff and defendants.
60. It is true, as rightly contended by learned
counsel for plaintiff there are documents to show, name
of Chikkabyannna is continued to suit property even
after his death, that itself not sufficient to say Will as
per Ex.D.1 is not acted upon. On the other hand,
plaintiff and other family members being beneficiaries
under Will have taken properties under Will and they
have dealt with properties bequeathed to them in their
individual capacity through registered deeds. When,
parties who acquired properties under registered Will
and dealt with same by virtue of registered deeds, those
registered deeds cannot be over looked just because in
some revenue documents of properties name of
42 O.S.No.25594/2007
Chikkabyanna continued even after his death and
thereby it is highly improbable to come to conclusion
Will as per Ex.D.1 is not acted upon.
61. It is evident from evidence on record that,
plaintiff having aware about earlier Will as well as
Ex.D.1 and having elected to receive property given to
her under Will intentionally not pleaded in the plaint
about those Will. Further, plaintiff intentionally not
included property given to her and her mother
defendant No.1 in present suit. When plaintiff has
already received property bequeath to her under Will
and dealt with same in her individual capacity and
other family members also being beneficiaries under
Will have dealt with property bequeath to them, now
plaintiff estopped from contending that, Will as per
Ex.D.1 is not proved and health condition of
Chikkabyannna was not stable at relevant point of time
and he was not in fit state of mind and health to
execute Will.
62. It is to be noted here, plaintiff has specifically
stated that, defendant No.8 requested her that, he had
43 O.S.No.25594/2007
convinced other sisters to sell part of site No.19 in
favour of Sri S.T. Jayaram so as to arrange money for
urgent family necessities i.e for property maintenance
and to have reconveyance effected by BDA. If contention
of plaintiff were to be true, property under Ex.D.2 sold
for legal and family necessities all family members
including mother of plaintiff who is defendant No.1
would have signed sale deed. Because, plaintiff herself
has contended, at that point of time she was staying
with her mother as she was being nursed for post
delivery care. On careful perusal of said document, it is
the only persons who have acquired property under Will
signed sale deed for having sold property to S.T.
Jayaram.
63. In view of above made discussion, plaintiff
failed to establish cancellation of Will dated 25.09.1986
is obtained by fraud and same is created by defendant
No.8. As already discussed, suit properties and other
properties bequeathed by late Chikkabyannna under
Ex.D.1 -Will and same is acted upon, suit properties are
not remained as joint family properties of plaintiff and
44 O.S.No.25594/2007
defendants. Under these circumstances, plaintiff cannot
claim she herself and defendants are in joint possession
and enjoyment of suit properties. As such principles
laid down in decisions relied by learned counsel for
plaintiff are not aptly applicable to facts and
circumstances of case on hand.
64. It is further argument on behalf of learned
counsel for plaintiff that, plaintiff being daughter of late
Chikkabyannna inherited properties under Section 6 of
Hindu Succession Act. Chikkabyannna has no right to
bequeath suit properties by executing Will as per
Ex.D.1. On the other hand, the learned counsel for
defendant No.8 has argued that, once Chikkabyannna
received properties under registered partition deed
dated 13.07.1960, the properties ceased to be joint
family properties and become self acquired properties of
Chikkabyannna.
65. The learned counsel for defendant No.8 in
support of his arguments has relied upon the decision
of Hon’ble Supreme Court in (2008) 3 SCC 87, in case
of Bhanwar Singh Vs. Puran and Others, wherein it
45 O.S.No.25594/2007
is held that, Indisputably, Bhima left behind Sant Ram
and three daughters. In terms of Section 8 of the Act,
therefore, the properties of Bhima devolved upon Sant
Ram and his three sisters. Each had 1/4th share in the
property. Apart from the legal position, factually the
same was also reflected in the record of rights. A
partition had taken place amongst the heirs of Bhima.
Although the learned First Appellate Court proceeded to
consider the effect of Section 6 of the Act, in our
opinion, the same was not applicable in the facts and
circumstances of the case. In any event, it had rightly
been held that even in such a case, having regard to
Section 8 as also Section 19 of the Act, the properties
ceased to be joint family property and all the heirs and
legal representatives of Bhima would succeed to his
interest as tenants in common and not as joint tenants.
In a case of this nature, the joint coparcenary did not
continue. It is true that the first Court of Appeal also
entered into the question of legal necessity for Sant Ram
to alienate the property in favour of the contesting
respondents but the said issue was considered in the
alternative to the principal issue. If the First Appellate
46 O.S.No.25594/2007
Court was correct in its opinion and we do not see any
reason to differ therewith that Section 6 of the Hindu
Succession Act was not attracted to the facts of this
case in view of the fact that Sant Ram and his sisters
having partitioned their properties became owners to
the extent of 1/4th share each, he had the requisite
right to transfer the lands falling within his share.
Furthermore, in terms of Section 19 of the Act, as Sant
Ram and his sisters became tenants in common and
took the properties devolved upon them per capita and
not per stripes, each one of them was entitled to
alienate their share, particularly when different
properties were allotted in their favour.
66. The learned counsel for defendant No.8 has
further relied upon decision of Hon’ble High Court of
Karnataka in C.R.P.No.121/2021 in case of Koshy
Abraham Vs. Smt. B.K. Jayalakshmi and others,
wherein it is held that, the Apex court in Banwar
Singh‘s case (supra) has held that once a partition has
occurred and property has fallen to the share of one of
the members of the family, such member of the family
had the requisite right to transfer the land fallen to his
47 O.S.No.25594/2007
share. In the present case, property on partition in the
year 1994 fell the share of defendant No.1 and it is
defendant No.1 who has sold the property. There is no
embargo on defendant No.1 to sell the property falling to
his share which has been recognized by the Apex court
in Banwar Singh‘s case (supra). Hence, on this ground
also the claim of the plaintiff that she is entitled to a
partition is not sustainable since it is the property
belonging to defendant No.1 which has been sold.
67. It is fact that, as per contents of Ex.D.1
Chikkabyannna acquired properties under registered
partition deed dated 13.07.1960. There is no document
placed on record to show that, Chikkabyannna
inherited properties from paternal ancestors upto four
generations. In view of principles laid down in above
decisions relied by counsel for defendant No.8,
contention of plaintiff that, as per provision of Section 6
of Hindu Succession Act, plaintiiff inherited suit
properties and Chikkabyannna has no right to bequeath
suit properties under Will is not sustainable. Hence, I
answer Issues No.1, 2, Additional Issue No.3 to 6
48 O.S.No.25594/2007
dated 04.07.2023 in the negative, issue No.8,
additional Issue No.10 dated 04.07.2023 and
additional Issue No.1 dated 28.03.2019 in the
affirmative.
68. ADDITIONAL ISSUE NO.7 DATED
04.07.2023 :- The plaintiff has deposed in her
examination-in-chief that, defendant No.8 being manger
of joint family mismanaged and sold house property
situated at Plot No.9 (Plot No.19/2) situated at 3 rd Main
Hosahalli, Vijayanagar, Bengaluru which is schedule ‘B’
property in favour of Sri Brahma Deo Prasad under
registered sale deed dated 05.07.1989. Sale effected in
favour of Sri Brahma Deo Prasad was not for legal and
family necessities.
69. It is pertinent to note here that, court on
28.01.2011 has framed issue No.5 to the effect “whether
plaintiff proves that sale deed dated 05.07.1989 created
by defendant No.8 in favour of Brahma Deo Prasad is
Ayavaharika and not binding on her”.
70. It is pertinent note here that, court by its order
dated 28.03.2019 has proceed to struck off said issue.
49 O.S.No.25594/2007
Thereafter, once again by mistake additional issue No.7
framed which is similar to issue No.5 which is already
struck off. Hence question of giving findings on
additional issue No.7 does not arise. Hence, I answer
additional issue No.7 dated 04.07.2023 does not
arise.
71. ISSUE NO.7 ADDITIONAL ISSUES NO.2 AND
9 DATED 04.07.2023 :- 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.
72. The contesting defendants have contended,
suit of the plaintiff is barred by law of limitation. As
father of plaintiff late Chikkabyanna executed registered
Will as per Ex.D.1 dated 25.09.1986 and all the
beneficiaries under Will have taken their respective
shares including plaintiff.
73. As already discussed, no doubt it is true,
plaintiff has not pleaded in plaint about Will as per
50 O.S.No.25594/2007
Ex.D.1 but there is sufficient documentary evidence on
record by way of Ex.D.2 to D.6 to say Will executed by
Chikkabyanna as per Ex.D.1 is acted upon and
beneficiaries under Will have taken their respective
shares in property bequeathed to them and they dealt
with property in their individual capacity. It can be
gathered from evidence on record, plaintiff having had
knowledge about Will has not pleaded same in the
plaint. The plaintiff has knowledge about property
acquired under Will, she was party to Ex.D.2 and
received her share of sale consideration.
74. It is fact that, Will as per Ex.D.1 was executed
by Chikkabyanna on 25.09.1986 and same is acted
upon. After lapse of nearly 20 years from date of
execution of said Will and having knowledge about said
Will on date when it come into force, plaintiff come up
with present suit claiming share in suit properties, as
such very suit is hopelessly barred by law of limitation.
Hence, I answer Issue No.7, Additional issues No.2
and 9 dated 04.07.2023 in the affirmative.
51 O.S.No.25594/2007
75. ISSUE NO.6 AND ADDITIONAL ISSUE NO.8
DATED 04.07.2023 :- 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.
76. The contesting defendants have contended
that, plaintiff has not properly valued subject matter of
suit and also not paid proper court fees. The plaintiff
has pleaded, she being daughter of late Chikkabyanna,
she is in joint possession and enjoyment of suit
schedule properties along with defendants. The plaintiff
having claimed her joint possession over suit properties
and for having filed suit for partition paid court fees of
Rs.200/- under Section 35(2) of Karnataka Court Fees
and Suits Valuation Act. As to whether, plaintiff is
entitled for relief as prayed in plaint or not is different
aspects. When plaintiff has specifically pleaded, she is
in joint possession and enjoyment of suit properties and
paid court fees under Section 35(2) of Karnataka Court
52 O.S.No.25594/2007
Fees and Suit Valuation and same has to be accepted as
just and proper. Hence, I answer issue No.6 and
Additional Issue No.8 in the affirmative.
77. ADDITIONAL ISSUE NO.1 DATED
04.07.2023 :- It is not in dispute that, plaintiff and
defendants being legal heirs of late Chikkabyanna are
parties to the suit. Moreover, beneficiaries under Will
executed by Chikkabyanna are parties to the suit. May
be it is true, plaintiff has not included all properties
mentioned in Will and all properties which are already
dealt by family members as beneficiaries under Will. It
is contention of plaintiff that, suit schedule properties
are remained as joint family properties of plaintiff and
defendants, as such plaintiff claiming share in suit
properties.
78. As already discussed, plaintiff has not
included property given to her and property given to
defendant No.1 under Will executed by Chikkabyanna.
As rightly contended by learned counsel for defendant
No.8, suit for partial partition definitely not
maintainable. In this regard, the learned counsel for
defendant No.8 has relied upon decision of Hon’ble High
53 O.S.No.25594/2007
Court of Karnataka, in R.S.A.No.1971/2018 in case of
D. Lingegowda Vs. Smt. Gowramma and others,
wherein it is held that, the Apex court held that,
partition under Hindu Law, when the suit is filed for the
relief of partial partition, when all the joint family
properties not made as the subject matter of the suit
nor the co-sharers impleaded, not maintainable. The
suit is filed by plaintiff without including all the joint
family properties and which prejudices the rights of the
alienees who have also been impleaded as parties to the
suit, in the circumstances of the case, has to be held
that the suit filed by the plaintiff for partial partition
without including all the joint family properties is bad in
law.
79. As plaintiff has not included other properties
in present suit question of impleading the persons who
are purchasers of those properties does not arise. As
such, contention of defendants that, suit is bad for non-
joinder of necessary parties and mis-joinder of parties is
not sustainable. Hence, I answer additional issue No.1
dated 04.07.2023 in the negative.
54 O.S.No.25594/2007
80. ISSUES NO.3 TO 5 :- It is worth to note here
that, as per order dated 28.03.2019 these issues No.3 to
5 were struck off. As such question of findings on these
issues does not arises. Hence, I answer these issues
No.3 to 5 were struck off by order dated
28.03.2019.
81. ISSUES No.9 ADDITIONAL ISSUE NO.11
DATED 04.07.2023 :- In view of the above said
findings on Issue Nos. 1 to 8, additional issues, I
proceed to pass the following:-
ORDER
The suit of the plaintiff is hereby
dismissed with costs.
Draw decree accordingly.
(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 2nd day of April, 2026).
(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
55 O.S.No.25594/2007ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:-
Examined on:
P.W.1 : Smt. Vijaya 09-07-2018.
2. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:-
Ex.P.1 : Certified copy Will.
Ex.P.2 : Certified copy of cancellation of Will.
Ex.P.3 : Certified copy of order passed by
Deputy Commissioner dated 08.05.1984.
Ex.P.4 : Copy of Vakalathnama.
Ex.P.5 : Copy of interim application under Section
5 of Limitation Act.
Ex.P.6 : Certified copy of order sheet in Appeal
No.21/1984.
Ex.P.7 : Certified copy of order passed in
Appeal No.21/1984 and 22/1984.
Ex.P.8 : Khata Extract.
Exs.P.9 : Endorsement.
and P.10
Ex.P.11 : Certified copy of partition deed
dated 14.12.1970.
Ex.P.11(a): Typed copy of Ex.P.11.
Ex.P.12 : Certified copy of sale deed
dated 23.06.1989.
Ex.P.13 : Khata extract.
Ex.P.14 : Letter dated 28.03.1984.
Exs.P.15 : Doctor prescription and medical receipt.
to P.19
Exs.P.20 : Death certificate and report issued by
and P.21 hospital.
56 O.S.No.25594/2007
Ex.P.22 : Death certificate of Chikka Byanna.
Ex.P.23 : Letter dated 13.03.1973.
Ex.P.24 : Receipt.
Ex.P.25 : Legal notice dated 14.02.2007.
Exs.P.26 : Postal receipts.
and P.27
Ex.P.28 : Certified copy postal letter.
Exs.P.29 : Postal covers.
to P.36
Exs.P.29(a): Legal Notices.
to P.36(a)
Ex.P.37 : Telephone bill.
Ex.P.38 : Electricity bill and receipt.
Ex.P.39 :BBMP notice dated 22.08.1994.
Ex.P.40 : Certified copy of Will dated 25.9.1986.
Ex.P.41 : Certified copy agreement of
dated 23.04.1974.
Ex.P.42 : Transfer letter dated 4.7.2005.
Ex.P.43 : Certified copy of sale deed
dated 15.03.2007.
Ex.P.44 : Certified copy of sale deed
dated 17.08.1960.
Ex.P.44(a): Typed copy of P.44.
Ex.P.45 : Certified copy of sale deed
dated 25.06.1962.
Ex.P.45(a): Typed copy of P.44.
Ex.P.46 : Mahazar.
Ex.P.47 : Bond of indemnity loss.
57 O.S.No.25594/2007
Ex.P.48 : Affidavit.
Ex.P.49 : Letter dated 15.04.1980.
Exs.P.50 : Electricity Board letters.
to P.53
3.LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:-
Examined on:
D.W.1 : Srinivas 05-04-2024. D.W.2 : Krupa Rani Babu 09-07-2024.
4.LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:-
Ex.D.1 : Certified copy of Will.
Ex.D.1(a): Signature.
Ex.D.2 : Certified copy of sale deed
dated 30.10.1992.
Ex.D.2(a): Typed copy of Ex.D.2.
Ex.D.3 : Certified copy of Gift deed
dated 27.11.2003.
Ex.D.4 : Certified copy of General Power of Attorney
dated 22.12.2003.
Ex.D.5 : Certified copy of sale deed
dated 25.07.2005.
Ex.D.6 : Certified copy of sale deed
dated 08.09.2005.
Ex.D.7 : Certified copy of judgment
in O.S.No.27300/2009.
Ex.D.8 : Certified copy of decree in
O.S.No.27300/2009.
(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
58 O.S.No.25594/2007