Bangalore District Court
Armugam vs Shakuntala on 6 June, 2026
KABC010133102007
IN THE COURT OF THE III ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH-25) AT BENGALURU.
DATED: THIS THE 6th DAY OF JUNE, 2026.
PRESENT : Smt. Nisharani A.C., B.A., LL.B.,
III Addl. City Civil and Sessions
Judge, Bengaluru
O.S.No.4832/2007
PLAINTIFFS Sri.Armugam
S/o late Sri.Ramaswamy,
Aged about 76 years,
R/at Eastern Portion of No.U-66 (Old No.3)
1st Main Road Mariyappanapalya,
K.P.Agarahara, Magadi Road,
Bengaluru - 560 023.
Since dead by LRs.
1(a). Sri.Pazhani
S/o late Sri.Armugam,
Aged about 62 years,
R/at No.1, 2nd Cross, Pipeline
Road, Cholurpalya,
Bengaluru - 560 023.
Since dead by his LRs.
1(a)(i). Smt.Devika Pazhani
W/o late Sri.Pazhani,
Aged about 58 years.
2 O.S.No.4832/2007
1(a)(ii). Sri.P.Nishanth
S/o late Sri.Pazhani,
Aged about 28 years.
1(a)(iii). Kum.P.Vinitha
D/o late Sri.Pazhani,
Aged about 25 years.
No.1(a)(i) to 1(a)(iii) are
R/at No.1, 2nd Cross, Pipeline Road,
Cholurpalya, Magadi Road,
Bengaluru - 560 023.
(By Sri.B., Advocate)
V/s.
DEFENDANTS 1) Smt.Shakuntala
W/o Sri.Sundareshan,
Aged about 50 years.
2) Mr.Manigandan,
S/o.Sri.Sundareshan,
Aged about 15 years.
3) Mr.Shashikumar,
S/o.Sri.Sundareshan,
Aged about 13 years.
Defendants No.2 and 3 are minors
and they are represented by
their natural Guardian and father and next
friend Sri.Sundareshan.
Defendants No.1 to 3 are residing at
Western portion of No.U-66 (Old No.3), 1st
Main Road, Mariyappanapalya,
K.P.Agrahara, Magadi Road,
Bengaluru-560 023.
3 O.S.No.4832/2007
4) Smt.Thilakavathi,
Aged about 35 years,
R/at ground floor portion No.U-66
(Old No.3), 1st Main Road,
Mariyappanapalya, K.P.Agrahara, Magadi
Road, Bengaluru-560 023.
5) Smt.Prabhavathi,
W/o. Sri.Peter,
Aged about 40 years,
R/at ground floor portion No.U-66
(Old No.3), 1st Main Road,
Mariyappanapalya, K.P.Agrahara, Magadi
Road, Bengaluru-560 023.
6) Sri.Manikyam,
Aged about 45 years,
R/at ground floor portion No.U-66
(Old No.3), 1st Main Road,
Mariyappanapalya, K.P.Agrahara, Magadi
Road, Bengaluru-560 023.
7) Sri. Masilamani,
Aged about 50 years,
R/at First floor portion No.U-66
(Old No.3), 1st Main Road,
Mariyappanapalya, K.P.Agrahara, Magadi
Road, Bengaluru-560 023.
8) Smt. Vimala,
W/o Sri.Venkatarayappa,
Aged about 42 years,
R/at First floor portion No.U-66
(Old No.3), 1st Main Road,
4 O.S.No.4832/2007
Mariyappanapalya, K.P.Agrahara, Magadi
Road, Bengaluru-560 023.
9) Smt.Kavitha,
W/o Sri.Vasu,
Aged about 28 years,
R/at First floor portion No.U-66
(Old No.3), 1st Main Road,
Mariyappanapalya, K.P.Agrahara, Magadi
Road, Bengaluru-560 023.
10) Smt.Laxmi,
Aged about 50 years,
R/at First floor portion No.U-66
(Old No.3), 1st Main Road,
Mariyappanapalya, K.P.Agrahara, Magadi
Road, Bengaluru-560 023.
11) Sri.Arunkumar,
Aged about 28 years,
R/at First floor portion No.U-66
(Old No.3), 1st Main Road,
Mariyappanapalya, K.P.Agrahara, Magadi
Road, Bengaluru-560 023.
12) Smt.A.Rajeshwari
D/o late Sri.Armugam,
W/o Sri.A.V.Armugam,
Aged about 64 years,
R/at Eastern Portion of No.U-66
(Old No.3), 1st Main Road,
Mariyappana Palya K.P.Agrahara, Magadi
Road, Bengaluru 560 023.
5 O.S.No.4832/2007
13) Sri.Karthik
S/o late Smt.A.Shanthi,
Aged about 29 years.
14) Smt.Lavanya
D/o late Smt.A.Shanthi,
Aged about 27 years.
15) Smt.Priya
D/o late Smt.A.Shanthi,
Aged about 26 years.
No.13 to 15 are R/at No.64,
Tirupathi Thangavel Nagar,
Kolathur, Chennai - 600 099.
(D.1 to 3 by Sri.B.N.G., Advocate
D.5, 7 to 11 by Sri.H.P., Advocate
D.12 to 15 - absent
D.4 & 6 - Exparte)
Date of institution of Suit 11.05.2007
Nature of the Suit Declaration and Possession
Date of commencement 04.08.2011
of recording of evidence
Date on which Judgment 06.06.2026
was pronounced
Total duration Year/s Month/s Days
19 00 26
Digitally signed by
NISHARANI NISHARANI A C
AC Date: 2026.06.09
17:31:56 +0530
(NISHARANI A.C)
III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
6 O.S.No.4832/2007
JUDGMENT
This suit is filed by the plaintiffs against the defendants
to declare that the plaintiff has become the owner of the suit
schedule property on the death of Smt.Dhana Bhagyammal.
Direct the defendants to vacate and deliver vacant
possession of the schedule property to the plaintiff. To direct
an enquiry into mesne profits and such other reliefs.
SCHEDULE PROPERTY
All that piece and parcel of the Western portion of the
property bearing No.U-66 (Old No.3), measuring East to
West:12½ feet and North to South: 80 feet, comprising of
ground floor, first floor and second floor, situate at 1st Main
Road, Mariyappanapalya, K.P.Agrahara, Magadi Road,
Bengaluru- 560 023, bounded on the:-
East by : Common passage in the same
property and to the East of the said
common passage, is the eastern
portion of the same property
belonging to the plaintiff.
West by : Property belonging to one Sri.Ravi,
7 O.S.No.4832/2007
North by : Conservancy,
South by : 1st Main Road.
2. The brief facts of the plaintiff’s case in
nutshell is as follows:-
In the plaint it is contended that the plaintiff’s elder
brother Sri.R.Poongavanam Naidu was the owner of the
entire property bearing Old No.3, New No.U-66, situate at 1 st
Main Road, K.P.Agrahara, Magadi Road, Bangalore. The
said property was purchased by Sri.R.Poongavanam Naidu
under a registered Sale Deed dated 16.08.1959. Then it was
a vacant site. Thereafter, on the Western portion of the said
property, a Mangalore tiles roof house was constructed. A
portion of it was occupied by Sri.R.Poongavanam Naidu and
the plaintiff. Both of them were living together. Under a
registered Sale Deed dated 15.06.1964 executed by
Sri.Poongavanam Naidu, the Eastern portion of the property
No.3 which was a vacant site measuring East to West: 5′ on
8 O.S.No.4832/2007the northern side, on the southern side and North to South:
70′ in which a foundation was laid, was sold in favour of the
plaintiff. The plaintiff was put in possession of the said
Eastern portion and ever since then, he is in possession of
the said Eastern portion as absolute owner by exercising the
acts of ownership. The Khatha of the eastern portion is
transferred in the name of the plaintiff. In the said property,
the plaintiff has constructed a house in the ground floor in the
year 1964 and a house in the 1 st Floor of RCC roof and 2 nd
floor of ACC roof in the year 1973-74. The remaining portion
of property No.3, viz., the Western portion retained by
Sri.R.Poongavanam Naidu is morefully described in the
schedule herein under and hereinafter referred to as the
schedule property. Now, in the ground floor of the plaint
schedule property, there are four tenements. Defendant No.1
is the mother of defendants No.2 and 3. Defendants No.1 to 3
are in occupation of one portion and the remaining three
9 O.S.No.4832/2007portions are in occupation of tenants viz., Defendants No.4, 5
and 6. In the portion of the ground floor of the schedule
premises, there is a temple of the family diety ‘Mariamman’.
The said temple was developed by the plaintiff and his
brother Sri.Armugam. In the first floor of the schedule
property, there are five tenements and the same is in
occupation of the tenants, who are defendants No.7 to 11.
The house in the 2nd floor is vacant. Plaintiff’s brother
Sri.R.Poongavanam Naidu had no issues. Smt.Dhana
Bhagyammal was the wife of Sri.R.Poongavanam Naidu.
Plaintiff’s wife Smt.Pattammal and Sri.R.Poongavanam
Naidu’s wife Smt.Dhana Bhagyammal were sisters.
Defendant No.1 was a native of Shankarapuram Village, near
Thiruvanamalai of Tamil Nadu. Plaintiff’s wife Smt.Pattammal
and her sister Smt.Dhana Bhagyammal W/o.
Sri.R.Poongavanam Naidu were native of Shankarapuram
Village. Their mother Smt.Kannammal was running a small
10 O.S.No.4832/2007hotel in the said village. The 1 st defendant was the neighbour
of Smt.Kannammal. The 1st defendant’s father was a Diesel
Mechanic and he died when the 1 st defendant was very
young. Then she was aged about 8 years. After the death of
her father, no one was there to take care of the 1 st defendant
and she had become an orphan. In these circumstances,
plaintiff’s mother-in-law Smt.Kannammal had taken care of
the 1st defendant and the 1 st defendant was staying with
Smt.Kannammal by assisting her. Plaintiff’s mother-in-law
Smt.Kannammal died in about the year 1972. On her death,
the 1st defendant was brought to Bengaluru by the plaintiff
and his brother Sri.R.Poongavanam Naidu and the 1 st
defendant was staying with the plaintiff and his brother
Sri.Poongavanam Naidu. She was working as a maid servant
in the house of the plaintiff and his sister Sri.R.Poongavanam
Naidu. As the 1st defendant was not having any of her
relatives, it was plaintiff and his brother who had taken care
11 O.S.No.4832/2007of the 1st defendant and it is they who celebrated the
marriage of the 1st defendant with Sri.Sundareshan, who is a
relative of the plaintiff. Sri.Poongavanam Naidu and his wife
Smt.Dhana Bhagyammal were staying in a portion of the
ground floor of the schedule property. As they were aged, the
1st defendant and her husband were also living with them.
The 1st defendant was working as a maidservant in the
plaintiff’s house also. Sri.Poongavanam Naidu died intestate
on 03.10.1993 leaving behind his wife Smt.Dhana
Bhagyammal as his only legal heir who has succeeded to the
schedule property. Thus, on the death of Sri.Poongavanam
Naidu, Smt.Dhana Bhagyammal inherited and succeeded to
the entire suit schedule property and she had become the
owner of the same and she was collecting the rents from the
tenants in occupation of the suit property. Smt.Dhana
Bhagyammal died intestate on 23.02.2000. Sri.Poongavanam
Naidu and Smt.Dhana Bhagyammal had no children. They
12 O.S.No.4832/2007died issue less. On the death of Smt.Dhana Bhagammal, the
schedule property has devolved upon the plaintiff who is the
heir of her husband, for the reason that the schedule property
was inherited by Smt.Dhana Bhagyammal from her husband
Sri.Poongavanam Naidu. Thus, plaintiff has become the
absolute owner of the schedule property. Defendants No.4 to
11 are in occupation of the schedule property as tenants from
the year 2004. The tenants in occupation of the schedule
property earlier to 2004 have vacated. After the death of
Smt.Dhana Bhagyammal, the 1st defendant started claiming
ownership right over the schedule property by asserting that
she is the daughter of Sri.Poongavanam Naidu and
Smt.Dhana Bhagyammal. The 1st defendant is neither a
daughter nor adopted daughter of Sri. Poongavanam Naidu
and Smt.Dhana Bhagyammal. On the death of Smt.Dhana
Bhagyammal, plaintiff became entitled to collect the rents
from the tenants in occupation of the schedule premises. As
13 O.S.No.4832/2007there was rival claim by the 1st defendant, the then tenants
have resorted to file petitions u/Sec.19 of The Karnataka
Rent Control Act 1961 for deposit of rent on the ground that
there is a serious dispute regarding the ownership of the
schedule property between the plaintiff and the 1 st defendant.
The 1st defendant had also filed an eviction petition against
the said tenants under the provisions of The Karnataka Rent
Control Act 1961 by forging a ‘Will’ purported to have been
executed by Smt.Dhana Bhagyammal in respect of the
schedule property in favour of the 1 st defendant and she got
the tenants evicted. In the meanwhile, the plaintiff caused a
notice to the 1st defendant asserting that he has become the
absolute owner of the schedule property and the 1 st
defendant has got nothing to do with the schedule property.
The said claim of the plaintiff was refuted by the 1 st defendant
by setting up a forged and bogus ‘Will’ alleging that it was
executed by Smt.Dhana Bhagyammal. Plaintiff’s daughter
14 O.S.No.4832/2007
Smt.Rajeswari was looked after by Sri.Poongavanam Naidu
and Smt.Dhana Bhagyammal, as they were not having
children. Smt.Rajeswari was brought up and fostered by
Sri.Poongavanam Naidu and Smt.Dhana Bhagyammal.
Plaintiff and his daughter Smt.Rajeswari were under the
misconceived impression and notion that Smt.Rajeswari is
also entitled for a share in the property, as she is the foster
daughter of Sri.Poongavanam Naidu and Smt.Dhana
Bhagyammal. In these circumstances, they intended to file an
appropriate suit and when they approached their then
counsel to file an appropriate and suitable suit against the 1 st
defendant and the tenants, the then counsel filed a
misconceived suit for declaration and permanent injunction in
respect of the entire property including the eastern portion of
the property bearing No.U-66 (Old No.3) which was
purchased by the plaintiff from his brother Sri.Poongavanam
Naidu. The said sale transaction was not reflected or stated
15 O.S.No.4832/2007
in the suit filed by the plaintiff and his daughter against the 1 st
defendant and others in O.S.No.912/2002 on the file of this
Court. In the year 2005, plaintiff changed the Counsel in
O.S.No.912/2002. Thereafter, the plaintiff came to know that
the said suit is in respect of the entire property and the suit by
his daughter Smt.Rajeshwari filed as adopted daughter is
misconceived, for the reason that she was not taken in
adoption by Sri.Poongavanam Naidu and Smt.Dhana
Bhagyammal. The foster daughter doesn’t succeed or inherit
to the properties of the foster parents. In these
circumstances, plaintiffs in O.S.No.912/2002 were advised to
withdraw the said suit with liberty to institute a fresh suit in
respect of the subject matter of the said suit and part of the
claim. Till the year 2006, the plaintiff and his daughter were
under the impression that the said suit has been filed only in
respect of the Western portion. In these circumstances,
plaintiffs in O.S.No.912/2002 filed an application before this
16 O.S.No.4832/2007
Court under Order 23 Rule 1(3) r/w Sec.151 CPC. The said
application was opposed by the 1 st defendant who was the
contesting defendant in the said suit. Ultimately, the said
application was allowed by this Court by its order dated 13 th
February 2007 granting leave to withdraw the suit in
O.S.No.912/2002 and to file a fresh suit, if any, on the same
cause of action with a condition that the plaintiffs in the said
suit shall pay cost of Rs.5,000/- to the defendants and the
said costs was to be paid before filing of a fresh suit and
further directing the plaintiffs to pay costs of Rs.1,000/- to the
defendants being the costs of the said application. The
directions of this Hon’ble Court with regard to the costs has
been complied with by the plaintiff. On 25.2.2007, the cost of
Rs.1,000/- has been deposited before this Court in
O.S.No.912/2002 and on 19.04.2007 the further cost of
Rs.5,000/- has been deposited before this Court in
O.S.No.912/2002. Defendants No.2 and 3 are the sons of the
17 O.S.No.4832/2007
1st defendant. The 1st defendant is alleging that, according to
the alleged ‘Will’ purported to have been executed by
Smt.Dhana Bhagyammal, the entire schedule property shall
absolutely go to her children defendants No.2 and 3 and the
1st defendant has only a life interest. Therefore, defendants
No.2 and 3 are made parties to this suit. The other
defendants are the tenants in occupation of the schedule
premises and they are denying the title of the plaintiff and
they are refusing to recognize the plaintiff as owner of the
schedule property and when the plaintiff has requested them
to vacate and handover the possession of the respective
tenements in their occupation, they have refused to handover
the possession by denying the title of the plaintiff over the
schedule property. In these circumstances, the plaintiff is
constrained and forced to file this suit for declaration and
possession against the defendants. The defendants No.1, 2
and 3 are not the legal heirs or the descendants of
18 O.S.No.4832/2007
Sri.R.Poongavanam Naidu and his wife Smt.Dhana
Bhagyammal. The ‘Will’ dated 09.02.1995 set up by the
defendants No.1 to 3 is a forged, concocted and bogus
document. It is not the ‘Will’ executed by Smt.Dhana
Bhagyammal. After the death of Sri.Poongavanam Naidu, his
wife Smt.Dhana Bhagyammal was not keeping good health.
Her eye sight was poor. She was a diabetic and she was an
illiterate. The 1st defendant, her husband and children were
staying with Smt.Dhana Bhagyammal. Smt.Dhana
Bhagyammal had no intention to bequeath the schedule
property in favour of defendants No.1 to 3. Taking advantage
of the innocence and ignorance of Smt.Dhana Bhagyammal,
to knock off the schedule property, the ‘Will’ is forged and
fabricated by the 1st defendant. By the said ‘Will’ the
defendants have not become the owners of the schedule
property. As submitted above, the plaintiff has become the
owner and he is entitled to possession of the property, but the
19 O.S.No.4832/2007
defendants are denying the plaintiff’s title and they are
refusing to part with the possession of the schedule property.
The cause of action for this suit arose on the death of
Smt.Dhana Bhagyammal on 23.03.2000 and subsequently,
when the defendants have denied the plaintiff’s title to the suit
property and when they have refused to deliver back
possession of the schedule property to the plaintiff. The
cause of action is still subsisting. Therefore, prays to decree
the suit.
3. Pursuant to the suit summons, the defendant
No.1 has appeared before the Court and filed her written
statement stating that the suit as brought by the plaintiff is
neither maintainable in law nor on facts. Therefore, the suit is
liable to be dismissed in limine. That the suit of the plaintiff is
false and vexatious. The plaintiff filed the suit in question, by
suppressing the material facts to harass the defendant with
ulterior motives and malafide intention for wrongful gain. The
20 O.S.No.4832/2007
plaintiff has no locus-stand to file the suit in question. The
plaintiff has no semblance of right over the suit schedule
property or any portion of it. It is true that Poongavanam
Naidu was the absolute owner of entire property bearing Old
No.3, New No.U-66 as stated in Para 2 of the plaint. It is
categorically denied that a portion of it was occupied by late
Poongavanam Naidu and the plaintiff and both of them were
living together as alleged in Para 2 of the plaint. The plaintiff
is put to strict proof of the said allegations. It is true that
Poongavanam Naidu has no issues. He and his wife
Dhanabhagyammal have adopted the 1 st defendant as their
daughter. It is true that the plaintiff’s wife and
Smt.Dhanabhagyammal were sisters as stated in Para 5 of
the plaint. The plaintiff was native of Shankarapuram village
and likewise Dhanabhagyammal also. But the 1st defendant
does not know the native of Pattammal. It is true that the
plaintiff was native of Shankarapuram village and likewise
21 O.S.No.4832/2007
Dhanabhagyammal also. But the 1st defendant does not know
the native of Pattammal. The allegations made in Para 10 of
the plaint are true to some extent, i.e., the occupation of
defendants 4 to 11, filing of the petitions by this defendant
and got the tenants evicted. All other allegations made in the
plaint are denied by the defendant No.1 as false and
frivolous. The plaintiff is put to strict proof of the said
allegations. The will is not forged and the same is registered
will executed by Smt.Dhariabhagyammal. The allegations
made in Para 13 of the plaint are true and correct. However,
it is submitted that the suit of the plaintiff is hopelessly barred
by law of limitation. There is no cause of action for the plaintiff
to file the above suit in question and the cause of action one
as alleged in Para 9 of the plaint is false and vexatious,
invented by the plaintiff to file the false suit in question for
imaginary reliefs. Therefore the plaint of the plaintiff is liable
to be rejected under Order VII Rule 11 of the Code of Civil
22 O.S.No.4832/2007
procedure and with costs under Sec.35-A of CPC. The suit is
not properly valued and the court fee is paid is insufficient.
The suit of the plaintiff is under valued and the plaintiff has to
pay Court fee on the market value of the suit schedule
property. The suit of the plaintiff is not in time and the same is
barred by limitation. In this connection this defendant submits
that, schedule property is the absolute property of Late
Poongavanam Naidu, who purchased the same under the
registered sale deed dated 16.08.1959. The schedule
property was the self acquired property of late Poongavanam
Naidu. He died on 03.10.1993 leaving behind his wife
Smt.Dhanabhagyammal and 1st defendant as sole surviving
legal heirs to succeed his property and rights. The said
Dhanabhagyammal died on 23.02.2000 leaving behind 1 st
defendant as sole surviving legal heir and that the 1 st
defendant succeeded to the schedule property and became
the absolute owner of the same after the death of
23 O.S.No.4832/2007
Smt.Dhanabhagyammal. After the death of Poongavanam
Naidu, his wife during her life time on 09.02.1995 executed a
registered Will bequeathing her right in the schedule property
in favour of defendant No.1 and thereafter to defendants No.2
and 3. After the death of Smt.Dhanabhagyammal, 1st
defendant and defendants No.2 and 3 have succeeded to the
schedule property and become the absolute owners in
possession and enjoyment of the same. Except the
defendants No.1 to 3 none else have any manner of right,
title, interest or possession over the schedule property. The
market value of the schedule property as on the date of filing
of the above suit is at Rs.1,100/- per Sq.feet. The schedule
property measures 1000 sq,feet. It comes approximately
Rs.11,00,000/- the vacant land value, the construction
consists of ground, first and 2 nd floor of 18 squares, i.e., 1800
Sq.feet, is valued Rs.8,46,000/- at the rate Rs.470 per
Sq.feet. The total value of the schedule property as on the
24 O.S.No.4832/2007
date of the presentation of the above suit is Rs.19,46,000/-.
The valuation given by the plaintiff is improper and the court
fee paid is inadequate. Therefore, the suit of the plaintiff is
not properly valued and the Court fee paid is in-sufficient.
Therefore, the plaint is liable to be rejected. It is submitted
that the plaintiff and his daughter filed a false and vexatious
suit in O.S.No.912/2002 against this defendant and other
tenements, basing on the cause of action dated 23.03.2000,
said to have arisen to file the aforesaid suit. Along with the
said suit they have also filed an application under Order 39
Rule 1 and 2 of CPC, i.e. I.A.No.2 for restraining this
defendant from interfering with his alleged possession of the
property scheduled to that suit. This defendant also filed an
application I.A-IV against the plaintiffs in the said suit for
injunction. This Court after hearing both the sides rejected the
by application filed by the plaintiff and allowed the application
filed by this defendant by granting the interim injunction
25 O.S.No.4832/2007
against the plaintiff and another. The plaintiff to negative the
order in favour of this defendant filed an application under
Order 23 Rule 1 of CPC to withdraw the said suit on the
flimsy reasoning. This defendant filed her objection to the
said application. However, this Court allowed the application
with an observation that I.A. allowed with liberty to file
fresh suit subject to law of limitation. (Para 14 of the
order). The plaintiff has not challenged the said order passed
by this Court. Therefore, the suit filed by the plaintiff is
hopelessly barred by law of limitation. That the suit of plaintiff
is otherwise opposed to law. The alleged facts and
circumstance of the case in O.S.No.912/2002 are entirely
different from the facts and circumstanced alleged in the
above suit. Therefore, the 1st defendant prayed to dismiss the
suit with exemplary costs.
4. The defendants No.2 and 3 have filed their written
statement stating that the suit of the plaintiff is false and
26 O.S.No.4832/2007
vexatious. The plaintiff filed the suit in question, by
suppressing the material facts to harass the defectives with
ulterior motives and malafide intention for wrongful gain. It is
submitted that the plaintiff has no locus-stand to file the suit in
question. The plaintiff has no semblance of right over the suit
schedule property or any portion of it. Therefore, the suit of
the plaintiff is not maintainable and the same is liable to be
dismissed. The 1st defendant filed her written statement in the
above case and the defendants No.2 and 3 adopt the written
statement filed by her by reiterating the averments made in
written statement of defendant No.1 and by denying the
allegations made in plaint as false and frivolous. The plaintiff
is put to strict proof of the said allegations. Therefore, prayed
to dismiss the suit with exemplary costs.
5. On the above rival contentions of both the sides,
my Learned Predecessor was framed the following issues on
11.09.2019:-
27 O.S.No.4832/2007
ISSUES
1. Whether the plaintiff proves his title over
the suit schedule property?
2. Whether the suit is barred by time?
3. Whether the court fee paid is sufficient?
4. Whether the plaintiff is entitled for the
relief as sought?
5. What order or decree?
ADDITIONAL ISSUE
1. Whether the defendants prove that 1 st
defendant has been adopted and they
have succeeded to the property by virtue
of the Will dated 09.02.1995 executed in
her favour?
6. In order to prove plaintiff’s case, the Special
Power of Attorney holder of the plaintiff has examined
himself as P.W.1 and got marked Ex.P.1 to 9. The
defendant No.1 is examined herself as D.W.1 and got
28 O.S.No.4832/2007marked Ex.D.1 to 59 and one witness is also examined on
her behalf as D.W.2.
7. The learned counsel for the plaintiff has filed
written arguments stating that the plaintiff late Sri.Armugam
filed this suit for the following reliefs.-
(a) That the plaintiff became the owner of the suit
schedule property on death of Smt.Dhanabhagyammal;
(b) To direct the defendants to vacate and deliver the
vacant possession of the suit property to the plaintiff;
(c) To direct an enquiry into the mesne profits; and
(d) For costs and to grant such other reliefs.
The subject matter of the suit is the Western portion of
property bearing No.U-66 (old No.3), measuring East to
West 1212 feet and North to South – 80 feet bounded on:-
East by : Common passage in the same property
and to the East of the said common
passage is the Eastern portion of the
same property belonging to the plaintiff.
West by : Property belonging to one Sri.Ravi,
29 O.S.No.4832/2007North by : Conservancy,
South by : 1st Main Road.
The case of the plaintiff is that his elder brother
Sri.R.Poongavanam Naidu was the owner of the entire
property bearing Old No.3, New No.U-66, situate at
K.P.Agrahara, 1st Main Road, Bengaluru, which was
purchased by Sri.R.Poongavanam Naidu, under a Sale
Deed dated 16.08.1959. Then it was a vacant site.
Thereafter, on the Western side he has constructed a
house and they were in occupation of the same. Under a
registered Sale Deed dated 15.06.1964 the Eastern portion
of property No.3, measuring East to West 5 feet on the
Western side, 20 feet on the Southern side and North to
South 70 feet was sold to the plaintiff. Eversince then, the
plaintiff is in possession and enjoyment of the Eastern
portion as absolute owner exercising acts of ownership,
wherein he has constructed a house. The Western portion
30 O.S.No.4832/2007retained by the plaintiff’s brother Sri.R.Poongavanam
Naidu, is the subject matter of this suit, wherein, the
defendants were in occupation. Sri.R.Poongavanam Naidu
and his wife Smt.Dhanabhagyammal had no issues.
Plaintiff and Sri.R.Poongavanam Naidu were brothers.
Plaintiff's wife Smt.Pattammal and Smt.Dhanabhagyammal, wife of Sri.R.Poongavanam
Naidu, were full sisters. The 1st defendant was native of
Shankarpuram. Her parents died when she was 8 years
old. She was taken care of by Smt.Kannammal, the
mother-in-law of the plaintiff, who was the native of
Shankarpuram Village of Tamil Nadu. On death of
Smt.Kannammal, the 1st defendant was brought to
Bengaluru by the plaintiff and his brother
Sri.R.Poongavanam Naidu, in whose house the 1 st
defendant was working as a maid servant. It was the
plaintiff and his brother who had taken care of and fostered
31 O.S.No.4832/2007her. Sri.R.Poongavanam Naidu died intestate on
03.10.1993 leaving his wife Smt. Dhanabhagyammal as his
sole legal heir. She succeeded to the suit property. Later
on she died intestate on 28.03.2000. Since they had no
issues, the suit property has devolved upon the plaintiff,
who was the only legal heir of Sri.R.Poongavanam Naidu.
Thus, the plaintiff became the absolute owner of the suit
property. The defendants No.4 to 11 were in occupation of
the suit property as tenants. After the death of
Sri.R.Poongavanam Naidu, the 1st defendant who has no
right, title and interest of whatsoever in or over the suit
property, started laying a false claim asserting that she is
the daughter of Sri.R.Poongavanam Naidu and
Smt.Dhanabhagyammal, she started claiming the rents
from the tenants in occupation. In these circumstances, as
there was rival claim by the plaintiff and the 1 st defendant
claiming ownership rights, the tenants have resorted to
32 O.S.No.4832/2007
Sec.19 of the Erstwhile Karnataka Rent Control Act, 1961,
for deposit of rents and the Court of Small Causes
permitted the tenant for depositing the rents. Further, the
1st defendant claiming to be the landlord of the Naidu and
premises, as daughter of Sri.R.Poongavanam
Smt.Dhanabhagyammal and also alleging that
Smt.Dhanabhagyammal executed a Will in respect of the
entire property, filed eviction petitions against the tenants.
The genuineness of the Will set up by the 1 st defendant
was disputed by the plaintiff alleging that it is a fake,
fictitious and bogus Will created by the 1 st defendant to
defraud the plaintiff. It was not the Will executed by
Smt.Dhanabhagyammal. Since the plaintiff’s daughter
Smt.Rajeshwari was being looked after by
Sri.R.Poongavanam Naidu and Smt.Dhanbhagyammal, the
plaintiff and his daughter Smt.Rajeshwari under a
misconception and misconceived legal advice filed a suit
33 O.S.No.4832/2007
for declaration and permanent injunction in
O.S.No.912/2000, in respect of the entire property. The
Eastern portion purchased by the plaintiff and of which he
was the owner was also included. On change of Counsel in
O.S.No.912/2002 by the plaintiff, he was advised that since
he purchased the Eastern portion and what was owned
and possessed by his brother and sister-in-law was the
Western portion only viz., the present suit schedule
property. The suit should have been only respect of the
said Western portion. And also the foster daughter cannot
claim the property of her foster parents, and she is not the
legal heir. The plaintiff was advised to withdraw the suit
with a liberty to institute a fresh suit in respect of the
subject matter of the said suit. In these circumstances, the
application filed by them under Order XXIII Rule 1(3) r/w
Sec.151 of CPC, was allowed by this Court by its Order
dated 13.02.2007 granting liberty to the plaintiff to file a
34 O.S.No.4832/2007
fresh suit subject to payment of costs. Accordingly, on
paying the costs, the above suit has been filed by the
plaintiff for the reliefs stated above. During the pendency of
the suit, the plaintiff died. His LRs. have come on record
and are prosecuting the suit. The defendant No.1 filed a
separate written statement. In sum and substance her
defense is that, plaintiff has no locus standi to file this suit.
The fact that Sri.R.Poongavanam Naidu was the absolute
owner of entire property No.3, New No.U-66 is admitted.
She has denied the sale of the Eastern portion of the said
property by Sri.R.Poongavanam Naidu to the plaintiff under
a registered sale deed dated 15.06.1954. It is the case of
defendant No.1 that since Sri.R.Poongavanam Naidu had
no issues, he and his wife Smt.Dhanbhagyammal adopted
the 1st defendant as their daughter, thus, she has become
their sole heir. The relationship of the parties viz., the
plaintiff and his brother Sri.R.Poongavanam Naidu were
35 O.S.No.4832/2007
brothers, their wives were sisters is admitted. The fact that
she lost her father at an young age and she was taken care
of by Smt.Kannammal and she was brought to Bengaluru
and fostered is also admitted. Further, the defendant sets
up a Will dated 09.02.1995 alleged to have been executed
by Smt.Dhanabhagyammal. It is her further case that, on
death of Smt.Dahanabhagyammal, she as sole surviving
legal heir succeeded to the entire property and became the
absolute owner etc. The defendants No.2 and 3 filed a
separate written statement adopting the written statement
of defendant No.1 and it is further alleged by them that
Sri.R.Poongavanam Naidu was the absolute owner. On his
death, his wife Smt.Dhanabhagyammal and the 1 st
defendant as legal heirs succeeded to his estate. On death
of Smt.Dhanabhagyammal on 23.02.2000 leaving behind
the 1st defendant as sole surviving legal heir, the 1 st
defendant succeeded to the suit property and became the
36 O.S.No.4832/2007
absolute owner and they also contended that, by the Will
dated 09.02.1995, they have become the absolute owners
and are in possession of the entire property, which is the
subject matter of the alleged Will. On the basis of these
rival pleadings, the following Issues have been framed by
this Court.-
(1) Whether the plaintiff proves his title over the suit
property?
(2) Whether the suit is barred by time?
(3) Whether the Court Fee paid is sufficient?
(4) Whether the Plaintiff is entitled for the reliefs as
sought?
(5) What order or decree?
Since the issue regarding the assertion made by
defendant No.1 that she is the daughter of
Sri.R.Poongavanam Naidu and Smt.Dhanabhagyammal
and also regarding the alleged Will dated 09.02.1992 was
not framed, the plaintiff filed I.A.No.9 under Order XIV Rule
5 r/w Sec.151 of CPC to frame two additional Issues. This
37 O.S.No.4832/2007
Court by its Order dated 09.07.2012 dismissed the said
application. The said order was questioned by the plaintiff
in W.P.No.26645/2012, the Hon’ble High Court of
Karnataka after hearing both the parties was pleased to
allow the Writ Petition directing this Court to frame an issue
with regard to the rights of the defendants “whether the
defendants prove that the 1 st defendant has been adopted
and they have succeeded to the property by virtue of the
Will executed in her favour?”. Accordingly, the additional
Issue has been framed.
(1) Whether the defendants prove that the 1st
defendant has been adopted and they have succeeded to
the property by virtue of the Will executed in her favour?
Since the plaintiff was aged and ailing, he appointed
his eldest son Sri.Palani by executing a Power of Attorney
in his favour, accordingly, plaintiff’s son Sri.Palani is
examined as PW.1. In his evidence, in all, 09 documents
are marked as Exs.P.1 to P.9. Ex.P.1 is the Special Power
38 O.S.No.4832/2007
of Attorney. Ex.P.2 is the registered Sale Deed dated
15.06.1994 under which the Plaintiff has purchased the
Eastern portion. Ex.P.2(a) is the typed copy of Ex.P.2.
Ex.P.3 is the certified copy of the Sale Deed dated
16.08.1959 under which Sri.R.Poongavanam Naidu
purchased the entire property, Ex.P.4 is its typed copy.
Certified copy of the Orders dated 13.02.2007 passed by
this Hon’ble Court in O.S.No.912/2002 permitting the
plaintiff to withdraw the suit with liberty to file a fresh suit is
marked as Ex.P.5. Ex.P.6 is one of the Receipt which the
cost has been deposited. Ex.P.7 is the Khatha extract.
Ex.P.8 is the tax receipt and Ex.P.9 is the plan approved by
the BCC for construction of the house in the Eastern
portion and that in the name of the plaintiff. The defendant
No.1 is examined as DW.1. In her evidence, in all,
Exs.D.34 to D.59 have been marked. Exs.D.1 to D.33 are
marked in the cross-examination of PW.1. The core
39 O.S.No.4832/2007
question in the suit is, Whether the succession to the suit
property is by intestate succession as contended by the
plaintiff or testamentary succession as claimed by the
defendants No.1 to 3? Admittedly, the suit property was
owned and possessed by Sri.R.Poongavanam Naidu,
brother of the plaintiff. On death of Sri.R.Poongavanam
Naidu, intestate property owned by him devolved on his
wife, who was the only Class-I heir under Section 8 of the
Hindu Succession Act. Since they had no children, on
death of Smt.Dhanabhagyammal intestate, according to
Sec.15(1)(b) of the Hindu Succession Act, her property
devolved according to the rules set out in Sec.16 of the
Hindu Succession Act upon the heir of her husband
(Sri.R.Poongavanam Naidu) specified in the entry (b) of
Sec.15(1) of the Hindu Succession Act. Therefore, the
ascertainment of legal heirs will once again commence
from Class-I of the Schedule of the Hindu Succession Act.
40 O.S.No.4832/2007
Since there are no Class-I heirs of Sri.R.Poongavanam
Naidu and also any heirs specified under entry (a) of Class-
II, under entry (b) of Class-II in the case on hand, it was the
plintiff Sri.Armugam alone, who was alive as on the date of
death of Smt.Dhanabhagyammmal, the suit property has
devolved on the plaintiff and accordingly, he is right in
claiming the title to the suit property. But the plaintiff’s title
to the suit property is denied and resisted by defendants
No.1 to 3 on two pleas (1) that defendant No.1 is the
adopted daughter of Sri.R.Poongavanam Naidu and
Smt.Dhanabhagyammal (2) on the ground that
Smt.Dhanabhagyammal bequeathed the entire property
No.U-66 to defendant No.1 by Will dated 09.02.1992. In
para-7 of the written statement of defendant No.1 it is
asserted that Sri.R.Poongavanam Naidu has no issues. He
and his wife Smt.Dhanabhagyammal have adopted
defendant No.1 as their daughter. As against this plea in
41 O.S.No.4832/2007
para-2 of her affidavit evidence, DW.1 swears to the fact
that she was treated as their daughter and they have taken
care of her as their daughter, which means
Sri.R.Poongavanam Naidu and Smt.Dhanabhagyammal
have fostered her and she is their foster daughter. Foster
daughter cannot claim to be the adopted daughter. Foster
daughter do not get a right in law to succeed to the
property or estate left by the deceased foster parents.
DW.1 at para-5 of her cross-examination also admits
categorically that she was not taken in adoption by
Sri.R.Poongavanam Naidu and Smt.Dhanabhagyammal.
She was looked after by them as their daughter. Therefore,
the 1st part of the additional issue whether she has been
adopted has to be answered in the affirmative and it is to
be held that she is not the adopted daughter. Then, what
remains is the 2nd plea/defense of the defendants that, they
have succeeded to the property by virtue of the Will dated
42 O.S.No.4832/2007
09.02.1995 in their favour, which is specifically denied by
the plaintiffs starting from HRC proceedings initiated
immediately after the death of Smt.Dhanabhagyammal in
the year 2001, wherein, the genuineness and validity of the
Will has been denied by the plaintiff. Nowhere, the plaintiffs
have admitted the due execution of the Will by
Smt.Dhanabhagyammal. The plaintiff disputed the
defendants relationship and the alleged Will in para-14 of
the plaint, which reads thus:-
“14. The defendants No.1 to 3 are not the legal heirs
or descendants of Sri.R.Poongavanam Naidu and his wife
Smt. Dhanabhagyammal. The ‘Will’ dated 09.02.1995 set
up by defendants No.1 to 3 is a forged, concocted and
bogus document. It is not the Will executed by
Smt.Dhanabhagyammal.”
According to the plaint averments at para-14, the
plaintiff is very clear that Smt.Dhanabhagyammal was not
in sound disposing state of mind, she had no intention to
bequeath the suit property to defendants No.1 to 3. Taking
43 O.S.No.4832/2007
advantage of her innocence and ignorance of
Smt.Dhanabhagyammal, to knock off the schedule
property, the Will is forged and fabricated by the 1 st
defendant and by the said Will, the defendants have never
become the owners of the schedule property. When the
plaintiff become the owner, he is entitled to possession of
the property. Since the defendants are denying the
plaintiff’s title and they are refusing to part with possession
of the suit property, the plaintiff had to file this suit. The
said pleadings relating to the Will and their relationship is
reiterated in the affidavit evidence of PW.1. Thus, the
plaintiffs have discharged the initial burden cast upon them
disputing the genuineness of the Will marked as Ex.D.34.
In law, the burden of proving the Will lies on the
beneficiaries/propounders of the Will. In the case on hand,
defendants No.1 to 3 being propounders, the question is
have they proved the due execution of the Will at Ex.D.34
44 O.S.No.4832/2007
by Smt.Dhanabhagyammal. The Will at Ex.D.34 is
shrouded by several suspicious circumstances and the
said suspicious circumstances have not been dispelled or
removed by the propounders- defendants No.1 to 3. Some
of the suspicious circumstances which goes to the root of
the matter are,
(i) it is not the Will executed by
Smt.Dhanabhagyammal is clear from the very Will in
question, which reads that that this Will executed by one
Smt.Dhanabhagya.
(ii) The Will reads that on death of her husband, she
succeeded to the schedule property and became the
absolute owner. The schedule property under the Will is
the entire property purchased by Sri.R.Poongavanam
Naidu, under a registered sale deed dated 16.05.1959
(Certified copy is at Ex.P.3, typed copy is Ex.P.4). When
Sri.R.Poongavanam Naidu during his life time sold the
Eastern portion of the suit property to his brother
Sri.Armugam under a Sale Deed dated 15.06.1964 vide
Ex.P.2 [typed copy at Ex.P.2(a)] is an admitted fact. What
was retained by Sri.R.Poongavanam Naidu was the
45 O.S.No.4832/2007
Western portion only viz., the suit schedule property which
has devolved on his wife Smt.Dhanabhagyammal, being
the said western portion and the Will if any by her shall be
in respect of the said western portion of which she was the
owner. But the alleged Will dated 09.02.1995 is in respect
of the entire property, which includes the property sold way
back in 1964, is a strong suspicious circumstance. No sane
and prudent person executes a Will in respect of others
property. It is only an insane person or a person who is not
in sound state of mind and a stranger to the property,
creates or forges the Will. According to Section 2(h) of the
Indian Succession Act, Will means, the legal declaration of
the intention of the testator with respect to his property,
which he desires to be carried into effect after his death.
Therefore, the Will in respect of others property, which is
no more owned or possessed by Smt.Dhanabhagyammal
or her husband is to be held as void, ineffective and not
legally binding.
(iii) In the Will, at one breath it is stated that the
testator as the sole surviving wife became the absolute
owner of the schedule property and except her, none else
have any manner of right, title or interest. The said
declaration is contradicted by a declaration that she has
46 O.S.No.4832/2007
got a daughter by name Smt.Shakunthala, who is looking
her with love and affection at her old age and the testator
has liking towards her daughter Smt.Shakunthala and
grand children. In the Will, the words “love and affection”
has been struck off and the word “liking” is added. The
words ‘liking’ and ‘love and affection’ are not one and the
same. The popular analogy regarding ‘like and love’ is, “if
you like a flower, you pluck it to enjoy its beauty. If you love
a flower, you water it daily to help it grow”, which means,
when that analogy is applied, the thing that emerges is
that, the person who executed the Will has no ‘love and
affection’ towards the beneficiaries. The said statement
belies and falsifies the further declaration in the Will that
Smt.Shakunthala is the daughter.
(iv) Another suspicion for rejecting the Will is, if
Smt.Shakunthala was the daughter of Sri.R.Poongavanam
Naidu and Smt.Dhanabhagyammal, on death of
Sri.R.Poongavanam Naidu, his property devolves on his
Class-I heirs under Section 8 of the Hindu Succession Act,
whereby, only the daughter and the wife gets equal rights
and interest over the said property. In such a situation, if
the wife were to bequeath or make a Will, such a Will shall
confine only in respect of her property half undivided share
47 O.S.No.4832/2007and interest, as per the definition of the Will under Section
2(h) of the Hindu Succession Act. She cannot include the
property of the daughter and divest the statutory vested
right by declaring that the daughter has only a life interest.
(v) No one knows who wrote the Will, at whose
instance it was written and by whom. DW.1 states that she
has no personal knowledge of its execution. Found the Will
4-5 months after the death of Smt. Dhanabhagyammal.
(vi) Admittedly, Smr.Dahanbhagyammal during her life
time made no revelations regarding the execution of the
Will.
(vii) Another strong suspicious circumstance is, if
Defendant No.1 was the daughter of Sri. R.Poongavanam
Naidu and Smt. Dhanabhagyammal as declared in the Will,
naturally and legally, she will be the only legal heir. In such
a situation, what was the need or necessity to execute the
Will. No explanation is there.
(viii) The execution of the Will shall be according to
Section 63 of the Indian Succession Act, 1925, which
mandates that every testator shall execute his Will in
compliance and according to the rules therein:-
(a) That the testator shall sign or affix his mark to the
Will, or it shall be signed by some other person in his
48 O.S.No.4832/2007presence and by his direction. In the present case, no
evidence or witness to speak to the fact thatFurther according to the Sec.63 of the Indian
Succession Act, 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 and each of the witnesses shall sign
the Will in the presence of the testator. In the present case,
none of the attesting witnesses though alive have been
examined by the defendant. In fact, the defendants have
deliberately avoided to examine the Attesting Witness
alleged that one of the Attesting witness Sri.Sahadevan
has poor eye sight. According to Sec.68 of the Indian
Evidence Act, proof and execution of document required by
law to be attested, if a document is required by law to be
attested, it shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving
its execution, if there be an attesting witness alive and
49 O.S.No.4832/2007subject to the process of the court and capable of giving
evidence. Sec.68 of the Indian Evidence Act makes it
mandatory to examine at least one witness to the Will and
this requirement cannot be dispensed with when such
witness is alive and subject to the process of the Court and
capable of giving evidence. But in the present case,
defendants No.1 to 3 for the reasons best known to them
have deliberately avoided to examine any one of the
attesting witness. The affidavit evidence of DW.1 is silent
about the attesting witnesses. In her cross-examination at
page-6, DW.1 testifies that she doesn’t know who are the
attesting witness. Her evidence regarding the attesting
witness in page -6 of her testimony reads thus:-
“I do not know who has signed as witness to
the Will. I came to know later one Sahadevan is
witness and he used to come to temple in our
property. His house is in Bannerghatta, Bangalore.
I do not know whether the distance from
50 O.S.No.4832/2007Bannerghatta to our house is about 20 kms. I have
seen Sahadevan once or twice after the demise of
my father. Sahadevan is alive. Witness volunteers
that, his eyesight has become weak. It is false to
suggest that said Sahadevan is healthy. I do not
know where Sahadevan is taking treatment. I do
not know the name of another witness to the Will.
Witness volunteers that the said other witness has
expired. I do not know, when has expired. I do not
know the name of person whom I enquired about
death of said witness. I do not know the address of
the said second witness to the Will. I do not know
whether address is mentioned in Ex.D34. I have not
tried to find out the address of the second witness.
I have not enquired with Sahadevan about the
second witness. It is false to suggest that Ex.D34
is not written by Dhanabhagyamal. It is false to
suggest that the signature is not of
Dhanabhagyamal. It is false to suggest that Ex.D34
is created document ”
According to defendants, one of the attesting witness
Sri.Sahadeva Swamy’s eye sight has become weak,
51 O.S.No.4832/2007
therefore, he could not be examined. In fact, on that count
the defendants No.1 to 3 filed I.A., to dispense with
examining Sri.Sahadeva Swamy and to examine his son to
identify his signature. The said application was allowed by
this Hon’ble Court by Order dated 01.06.2018. Aggrieved
by the said order, the plaintiff questioned the correctness of
the said order before the Hon’ble High Court in
W.P.No.25918/2018. The Hon’ble High Court by its Order
dated 03.09.2022 was pleased to allow the said Writ
Petition, quashing the impugned Order dated 01.06.2018,
by observing that, if Sri.Sahadeva Swamy cannot be
examined, for any reason, other than poor eye sight, it
would be open for the defendants to examine any witness
who can be summoned, as may be permissible under
Section 69 of the Evidence Act. The operative portion of
the said order reads thus:-
52 O.S.No.4832/2007
“The Petition is disposed off quashing the civil court’s
impugned order dated 01.06.2018 in O.S.No. 4832/2007
“IA.17 & 18” with liberty to examine the attesting witness
Sri.Sahadeva Swamy. In the event he cannot be first
examined, the Respondent must be at liberty to file
necessary application to examine the witness to identify
his purported signature as permissible under Section 69
of the Indian Evidence Act, 1972.”
In spite of such a direction by the Hon’ble High Court,
Sri.Sahadeva Swamy was not examined. After passing of
considerable time, DW.2 is examined alleging that
Sri.Sahadeva Swamy is dead and DW.2 is his son. The
evidence of DW.2 is full of contradictions. His evidence
regarding the name of his father is not consistant regerring
the names as ‘Sahadevan, Sahadeva Swamy,
Sahadevappa’. DW.2 doesn’t speak about his father’s poor
eye sight. According to him, his father died on 21.07.2023
and till then he was hale and healthy. Even otherwise, the
attesting witness, who later becomes blind or whose eye
53 O.S.No.4832/2007
sight becomes weak or poor, is competent to be examined
as a witness in the court, when he understoods the
questions put to him and gives rational answers. As per
Section 118 of the Indian Evidence Act, poor eye sight by
itself doesn’t affect the persons ability to see and it will not
affect his ability to understand or remembrance nor does it
effect his cognitive capacity to testify about the events he
evidenced before his eye sight was deteriorated or became
poor. The question will be of whether the witness can
remember the facts surrounding the execution of the
document not their ability to see at the time of examination
as a witness. When the fact that he was mentally sound
and capable of communicating is not in dispute, his non-
examination is fatal to the case of defendants No.1 to 3. No
cogent reason or evidence is placed for non-examination of
another witness. No attempts are made to secure such
witness to be examined. In such circumstances, an
54 O.S.No.4832/2007
adverse inference has to be drawn under Sec.114(g) of the
Indian Evidence Act, for withholding the best available
evidence. In these circumstances, the defendants cannot
take shelter or resort to Sec.69 of the Indian Evidence Act.
Further, in a case where the attesting witness could not be
examined on the ground that they are not found or
available, at least the scribe of the Will Sri.Sudarshan
Reddy, the learned Advocate, who is representing the
defendants in all the cases from the inception, should have
been examined, which would have thrown some light and
aided and assisted this Court on some of the vital aspect
relating to due execution of the Will, as to, on whose
instructions he prepared and drafted the Will? Whether any
documents were given for him for reference? If so, which
are the said documents? Who were the witnesses who
have witnessed the testator affixing his signature and who
accompanied the testator to the office of the Sub-Registrar,
55 O.S.No.4832/2007
was it the beneficiaries or some else who has identified the
testator before the Sub-Registrar at the time of registration
of the Will? Whether the attesting witnesses signed in
presence of the testator and the testator signed in
presence of the attesting witnesses? The defendants are
afraid of examining their learned Advocate, fearing that it
was they who got prepared the Will and it is not the Will
duly executed by Smt.Dhanabhagyammal and as such, an
adverse inference has to be drawn under Section 114(g) of
the Indian Evidence Act. Regarding the proof of the Wills,
the plaintiff relies upon the following authorities.
(i) The land mark judgment of the Hon’ble Supreme
Court in the case H.Venkatachala of Vs. Iyengar
B.N.Thimmajamma and others, reported in AIR 1959 SC
443. The Hon’ble Apex Court has succinctly defined the
contours in Para 18 to 21 of the said judgment:-
56 O.S.No.4832/2007
“18. What is the true legal position in the matter of
proof of wills? It is well-known that the proof of wills
presents a recurring topic for decision in courts and there
are a large number of judicial pronouncements on the
subject. The party propounding a will or otherwise making
a claim under a will is no doubt seeking to prove a
document and, in deciding how it is to be proved, we must
inevitably refer to the statutory provisions which govern the
proof of documents. Sections 67 and 68 of the Evidence
Act are relevant for this purpose. Under s. 67, if a
document is alleged to be signed by any person, the
signature of the said person must be proved to be in his
handwriting, and for proving such a handwriting under ss.
45 and 47 of the Act the opinions of experts and of persons
acquainted with the handwriting of the person concerned
are made relevant. Section 68 deals with the proof of the
execution of the document required by law to be attested;
and it provides that such a document shall not be used as
evidence until one attesting witness at least has been
called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature of
proof which must be satisfied by the party who relies on a
document in a court of law. Similarly, ss. 59 and 63 of the
57 O.S.No.4832/2007Indian Succession Act are also relevant. Section 59
provides that every person of sound mind, not being a
minor, may dispose of his property by will and the three
illustrations to this section indicate what is meant by the
expression ” a person of sound mind ” in the context.
Section 63 requires that the testator shall sign or affix his
mark to the will or it shall be signed by some other person
in his presence and by his direction and that the signature
or mark shall be so made that it shall appear that it was
intended thereby to give effect to the writing as a will. This
section also requires that the will shall be attested by two
or more witnesses as prescribed. Thus the question as to
whether the will set up by the propounder is proved to be
the last will of the testator has to be decided in the light of
these provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions in the
will? Did he put his signature to the will knowing what it
contained? Stated broadly it is the decision of these
questions which determines the nature of the finding on the
question of the proof of wills. It would prima facie be true to
say that the will has to be proved like any other document
except as to the special requirements of attestation
prescribed by s. 63 of the Indian Succession Act. As in the
58 O.S.No.4832/2007case of proof of other documents so in the case of proof of
wills it would be idle to expect proof with mathematical
certainty. The test to be applied would be the usual test of
the satisfaction of the, prudent mind in such matters.
(ii) Babu Singh and others Vs. Ram Sahai @ Ram
Singh- AIR 2008 SC 2485:-
“For the proof relating to execution of the Will,
examination of attesting witnesses alone is not sufficient.
What is required is the propounder has to explain by
leading evidence surrounding suspicious circumstances.
Party must have taken steps to compel attendance of the
attesting witness. Where no such steps are taken, on mere
statement of a party for not examining the attesting
witness, strict proof shall not be relaxed by the courts.”
(iii) 2010(5) SCC 274 – S.R.Srinivasa and others Vs.
S.Padmavathamma – Regarding the legal position of
admission of Will it is held that-
“Admission about making of Will doesn’t amount to
admission of due execution and genuineness of Will.
Further, the legal position regarding the proof of execution
59 O.S.No.4832/2007of Will and the mode of proof and manner of proof and
legal provisions governing the proof are summarized and it
is also held that the statutory requirement of examination of
at least one attesting witness for proving the Will is
required. Further it is held that where the execution of the
Will is shrouded by suspicious circumstances, it is
necessary for the propounder of Will to explain the same –
Mere registration of the Will, will not by itself sufficient to
remove the suspicion.”
(iv) 2010 (14) SCC 266 Gopal Swaroop Vs. Krishna
Murari Mangal and others.
“(D) – Evidence Act 1972 – S.68 – Will – Evidence to
prove – Admissibility of – Held, Documents required by
law to be attested cannot be let in evidence unless one of
the attesting witnesses, if alive and capable of giving
evidence, is called for proving the attestation – Succession
Act 1925 Section 63.”
(v) ILR 2008 KAR 2115 – J.T.Soorappa and Anr. V/s.
Sri.Satchidanandendra Saraswathi Swamiji Public
Charitable Trust and Others.
60 O.S.No.4832/2007
“(A) – Indian Succession Act 1925 –S.2(h) – Will
proof of – legal requirements – duty of the court five steps to
be considered – Held, Under the Act Will to be valid should
be reduced into writing, signed by the testator and shall be
attested by two or more witnesses and at least one
attesting witnesses shall be examined. If these legal
requirements are not found, in the eye of law, there is no
Will at all.”
(vi) AIR 2006 SC 1895 – Joseph Anthony Lazarus
(D) by LRs., V/s. A.J.Franciz
“Failure to examine the Advocate who drafted Will and
Sub-Registrar cumulative effect of all the circumstances
taken together showing genuineness of the Will doubtful.”
(vii) AIR 2007 SC 614 – Niranjan Umeshchandra
Joshi V/s. Mrudula Jyothi Rao and Others
“(B) – Succession Act – S.63 – Will Execution –
suspicious circumstance – Stated
There are several circumstances which would have
been held to be described by the SC as suspicious
circumstances circumstances – These are (1) When a
61 O.S.No.4832/2007
doubt is created in regard to the condition of mind of the
testator his signature on the Will; (ii) When the
disposition appears to be unnatural or wholly unfair in the
light of the relevant circumstances; (iii) Where
propounder himself takes prominent part in the execution
of Will which confers on him substantial benefit.”
(viii) 2015 (4) SCC 601 – Om Prakash (D) by Lrs.,
V/s. Shanthidevi & others
“(D) Evidence Act, 1872 – Ss.61 to 73 – Proof of
registered document held, registration of document does
not per se, ipse facto, render it impervious to challenge or
make its reception automatic in curial proceedings – In
present case, though clerk of Sub-Registrar’s office was
examined as a witness, he could only have proved date on
which the gift deed was presented for registration i.e.
18.05.1970 This witness could not possible have proved
genuineness of document itself – Registration Act, 1908 –
Sec 34 – 37, 17 and 47 to 50 transfer of Property Act, 1882,
Ss.54,59,107,118 and 123″
62 O.S.No.4832/2007
(ix) ILR 2007 KAR 1484 – WE Sambadam Vs. WE
Sathyanarayan and others
“Held – Mere registration of the Will would not wipe out
the suspicious character of the Will ………”
The suit is intime and it is not barred by limitation. The
Hon’ble Supreme Court in Mallavva vs Kalsammanavara
Kalamma (Since Dead) held that in suits for title,
declaration and possession, the limitation period is
governed by Article 65 of The Limitation Act, 1963. It is
ruled therein that if title is proven, the suit is not time barred
unless the defendant establishes adverse possession. In
the present case on hand the plea of adverse possession
is not set up by the defendants. The plaintiffs have
successfully proved and established their title to the suit
property by intestate succession. Therefore, the suit is well
within time. The aforesaid judicial pronouncements by the
Hon’ble Apex Court and our Hon’ble High Court are
63 O.S.No.4832/2007
squarely applicable to the facts and circumstances of the
case and on applying the said principles it becomes clear
that defendants No.1 to 3 have failed to prove the due
execution of the Will in question marked as Ex.D.34 by
Smt.Dhanbhagyammal and it is a case of intestate
succession and not of testamentary succession.
Accordingly, the suit of the plaintiff is liable to be decreed
as prayed for by answering Issues No.1,3,4 in affirmative
and issue No.2 and additional issue in negative. Therefore,
prays to decree the suit.
8. The learned counsel for the plaintiff in support
of his arguments has relied on following decisions:-
1. (2012) 6 SCC 430 – A.Shanmugam V/s. Ariya
Kshatriya Rajakula Vamsathu Madalaya Nandhavana
Paripalanai Sangam Represented by its President and
others.
64 O.S.No.4832/2007
2. (2024) 12 S.C.R. 1884 : 2024 INSC 1021 –
Mallavva and another V/s. Kalsammanavara Kalamma
(Since Dead) by Legal Heirs and others.
9. The learned counsel for the defendants No.1 to
3 has filed written arguments stating that the suit of the
plaintiff is not maintainable without seeking declaration of
his status, as the plaintiff herein filed the above suit for
declaration and possession, alleging that he succeeded to
the suit schedule property on the death of
Smt.Dhanabhgyammal. It is further case of the plaintiff that
said Smt.Dhanabhgyammal died intestate and the
defendant No.1 has forged and created the Will. If a person
alleges forgery, burden is on him to prove the same.
However, the plaintiff never stepped into witness box to
allege the same. (2005 (1) SCC 40 (A). Earlier the plaintiff
along with his daughter filed a suit in O.S.No.912/2002 for
declaration alleging that her daughter is adopted daughter
65 O.S.No.4832/2007
of Sri.Poongavanam and Smt.Dhanabhgyammal and that
they succeeded to the schedule property to the said suit.
The property scheduled to that suit is:
All the peace and parcel of the property bearing No.3,
situated at Mariyappana Palya, Corporation Division No.23,
1st Main Road, Kempapura Agrahara, Magadi Road,
Bangalore – 560023, consisting of Ground Floor and First
Floor with a private temple therein, measuring East to West
on the Northern side 15 feet and on the Southern side 38
feet, and North to South 90 feet, bounded on the:
East by: two feet Oney and thereafter Company
property,
West by : Private property,
North by : Railway Road and
South by: Conservancy.
After service of summons, the 1st defendant filed the
written statement and contested the matter. Later the said
suit was withdrawn with a liberty to file fresh suit and the
said application was allowed subject to law of limitation.
Later the above suit was filed for declaration as well as for
66 O.S.No.4832/2007possession. The copy of the plaint in O.S.No.912/2002 is
herewith produced for kind perusal of this Hon’ble court.
The above suit in O.S.No.912/2002 was filed against the
1st defendants and other tenements, basing on the cause
of action said to have arose on: 23.03.2000, 30.07.2001
and 10.12.2001. The 1st defendant filed her written
statement and contested the above suit. An interim order
was passed against the plaintiff herein in the aforesaid suit
and the same was continued till disposal of the above suit
by affirming that the defendants are in possession of the
schedule property to the suit. Based on the pleadings, this
Court framed following issued therein:
ISSUES in O.S.No.912/2002 dated 09.01.2004
1. Whether the plaintiffs prove that they are absolute
owners of the suit property?
2. Whether they were in lawful possession of the suit
property as on the date of the suit?
3. Whether they prove interference by the defendants?
67 O.S.No.4832/2007
4. Whether the plaintiffs entitled for the relief of
declaration sought?
5. Whether the plaintiffs entitled to the relief of
permanent injunction as prayed for?
To prove their respective contentions, the plaintiff has
also led his evidence in the said suit on 06.09.2004 and the
matter was posted for cross-examination. After the plaintiff
lead his evidence, he came know that the allegations made
therein i.e., in the said suit are false and frivolous, when he
came to know that the said suit is false and frivolous even
to his knowledge, the plaintiff in order to escape from his
faults and to harass the defendants, filed an application
under Order 23 Rule 1 of CPC, 1908, to withdraw the said
suit on the flimsy reasoning. This Court allowed the said
application with an observation that I.A. allowed with
liberty to file fresh suit subject to Law of Limitation.
(Para 14 of the Order). The plaintiff has not challenged the
said Order dated 13.02.2007 passed by this Court. Later
68 O.S.No.4832/2007
the plaintiff herein filed the above suit during April 2007,
based on different set of facts in respect of the property
scheduled to this suit and not in respect of the property
scheduled to O.S.No.912/2002 by producing the Will
executed by Smt.Dhanabhgyammal as document No.5 and
sought for declaration and possession of the suit schedule
property by inventing false cause of action said to have
arisen on 23.03.2000 with ulterior motives. Even as on the
date of the above said suit, the plaintiff ought to have
sought for reliefs which have sought in the above suit (i.e.,
the relief of declaration was barred by law in the above suit.
To overcome the bar, the plaintiff added possession in the
above suit without disclosing the cause of action for such
relief contrary to earlier suit). For having not done so and
not sought permission form this Court to seek present
reliefs, therefore, the above suit is barred under Order II
Rule 2 of CPC, 1908. The liberty is restricted only to file a
69 O.S.No.4832/2007
fresh suit for declaration only and not for possession.
Hence the above suit is liable to be dismisses as barred by
law i.e., the plaint is liable to be rejected by exercising
power under Order 7 Rule 11(d) of CPC, 1908. After
service if summons the defendants 1 to 3 appeared and
filed their written statement and contested the case. It is
the case of the 1st defendant that the she has been
informed by her mother Smt.Dhanabhgyammal that when
she was very young, her father Sri.Poongavanam Naidu
and herself were brought to Bangalore at her age of 5
years, as they have no children. They have treated her as
their daughter. Since then, she is living with them and they
have taken care of her as their daughter. They performed
her marriage with Sri.Sundaresan and took care of her and
her children with all respects like a daughter in the
marriage and after ceremonies. The same is not disputed
by the plaintiff. It is admitted fact that the schedule property
70 O.S.No.4832/2007
was the absolute property of Sri.Poongavanam Naidu.
Sri.Poongavanam Naidu purchased the schedule property
along with the adjacent property on its eastern side, under
the registered Sale Deed dated 16.08.1959. After filing of
the suit, these defendants came to know that it seems that
said Sri.Poongavanam Naidu sold the eastern portion to
the suit schedule property to the plaintiff during 1964 by
retaining the suit schedule property in his ownership, that
the schedule property is his self-acquired property and that
the plaintiff and his family are residing separately, and they
never resided with the family of Sri.Poongavanam Naidu,
the said Sri.Poongavanam Naidu, Smt.Dhanabhgyammal
and these defendants 1 to 3 are residing in the schedule
property. It is also admitted fact that the said
Sri.Poongavanam Naidu died on 03.10.1993 leaving
behind his wife Smt.Dhanabhgyammal and the 1 st
defendant as his only surviving legal heirs to succeed to his
71 O.S.No.4832/2007
estate and his rights in the same (As the 1 st defendant has
been treated as their own daughter all along till their
death). The conduct of Sri.Poongavanam Naidu and
Smt.Dhanabhgyammal towards the 1 st defendant by
performing her marriage (Ex.D.35), taking care of her and
her children and execution of Will (Ex.D.34) in her favour
demonstrate the same. “Calling the person their “daughter”
in the Will and wedding invitation is the best supporting
evidence of their intent. The Will recognises and identifies
the legatee as daughter. The judgment rendered by the
Hon’ble Supreme Court in AIR 1970 SC 1286 supports the
case of 1st defendant. The adoption held to be proved. By
reading the will the real intention of testator has to be
ascertained (AIR 2000 NOC 11 (Madras). It is submitted
that after death of Sri.Poongavanam Naidu, his wife
Smt.Dhanabhgya also called as Smt.Dhanabhgyammal
with respect by adding Ammal to her name, became the
72 O.S.No.4832/2007
absolute owner of the suit schedule property. During life
time of Smt.Dhanabhgyammal, she executed a registered
Will dated 09.02.1995, bequeathing her right in the
schedule property in favour of the 1 st defendant and
thereafter to her sons i.e., the defendants No.2 and 3. The
said Smt.Dhanabhgyammal died on 23.02.2000 testate.
The 1st defendant came to know about the Will only after
her death when she opened her iron Almira. Though the
plaintiff alleged about the will, but not disputed the same.
That on the death of Smt.Dhanabhgyammal, the
defendants No.1 to 3 have succeeded to the schedule
property by testamentary succession and have become the
absolute owners in possession and enjoyment of the same.
Except them none else have any manner of right, tittle,
interest or possession over the schedule property. The
Khatha of the schedule property is made over to the name
of 1st defendant and she is paying taxes to the concerned
73 O.S.No.4832/2007
authorities. The 1st defendant has let out some portions in
the schedule property to different tenements and collecting
the rents. She along with her family members are in
possession and enjoyment of the schedule property by
exercising all acts of ownership over the same. This Court
confirmed the possession of defendants No.1 to 3 and
granted interim order in their favour against the plaintiff. It
is also contention of the defendants that the market value
of the schedule property as on the date of filling of the
above suit is at Rs.1,100/-per Sq. Feet’s. The schedule
property measures 1,350 Sq. feet. It comes to
approximately Rs.14,85,000/- being the vacant land value.
The construction consists of ground, first and 2 nd floor of 18
squares, i.e., 1800 Sq. Feet’s, is valued Rs.8,46,000/-at the
rate Rs.470/- per Sq. Ft. The total value of the schedule
property as on the date of presentation of the above suit is
Rs.23,31,000/-. Therefore, the valuation given by the
74 O.S.No.4832/2007
plaintiff is improper and the court fee paid is inadequate.
Therefore, the suit of the plaintiff is not properly valued,
and the court fee paid is in-sufficient. Hence, the plaint is
liable to be rejected. This Court based on the pleading
formed 5 issues and on an application by the plaintiff, 1
additional issue was framed pursuant Order of the Hon’ble
High Court of Karnataka in W.P.No.26645/2012 dated
25.03.2014 as follows:-
ISSUES in the above suit
1. Whether the plaintiff proves his title over the suit
schedule property?
2. Whether the suit is barred by time?
3. Whether the court fee paid is sufficient?
4. Whether the Plaintiff is entitled for the reliefs as
sought?
5. What Order or Decree?
Date: 29.06.2010.
75 O.S.No.4832/2007
Additional Issue framed as per order dated
25.03.2014 in W.P.No.26645/12: –
1). Whether the defendants proves that 1st defendant
has been adopted and they have succeeded to the
property by virtue of the will dated 09.02.1995 executed in
her favour?
The plaintiff has never entered into witness box and
deposed to prove his contentions. His son was examined
as PW.1, and Ex.P.1 to the P.9 marked. He was subjected
for cross-examination. In the cross-of examination, he has
admitted that he has no personal knowledge about the
allegations of the plaint. He came to know about the same
through his father. From 1964 they have been separately
residing; that the defendant No.1 residing with
Smt.Dhanabhgyammal till her death; that the suit in
O.S.No.912/2002 filed with false allegations. On
confrontation he admitted the document produced in the
above said suit and were marked as Ex.D.1 to D.33; he
76 O.S.No.4832/2007
admitted that suit schedule property is the absolute
property of Smt.Dhanabhgvammal on the death of her
husband, the both portions have same number, the plaintiff
has come to know about the Will after he came to know
about the same 4-5 months after death of
Smt.Dhanabhgyammal, he admitted in his cross
examination at Page 24 “It is true that in Para 16 of my
chief at Sl.No.(v) I have stated regarding the certified copy
of the will. It is true that the said will is of
Dhanabhbyammal.” He also admits that the 1 st defendant is
receiving the rents. (2025 SAR (Civil) 1170) However, the
PW.1 pleaded ignorance of the facts which are within the
specific knowledge of the plaintiff. In view of the fact that
the PW.1 has no knowledge about the facts within the
knowledge of plaintiff, his evidence is of no relevance and
cannot be considered at all. Since PW.1 has admitted the
Will, the Will executed by Smt.Dhanabhgyammal has been
77 O.S.No.4832/2007
proved beyond reasonable doubt. Non examination of
plaintiff who may be better person to identify the signature
in the above case is fatal to his case and an adverse
inference has to be drawn against him. (2010 (10) SCC
512 (B). On the side of defendant’s, 1st defendant has been
examined as DW.1 and Ex.D.34 to D.59 were marked in
addition of Ex.D.1 to D.33 marked through confrontation to
PW.1. The DW.1 was subjected for cross examination.
Except suggestions, nothing worth is elicited in the cross-
examination. Since, both witnesses to the Will have died,
i.e. not found, (AIR online 2020 SC 644 at Para 61) in the
said circumstances, son of one witness Sahadevan has
been examined as DW-2. He identified the signature of his
father on the original Will produced as Ex.D.34. (AIR 1927
Mad 662) The plaintiff has failed to prove that the signature
is not that of Smt.Dhanabhgyammal, by entering into
witness box, except suggesting the same to the witness.
78 O.S.No.4832/2007
Nothing more is elicited in the cross examination except
suggestion. By the said fact, the will is proved beyond
reasonable doubt. (AIR 1989 Kerala 228) In order to prove
further about the Will and its execution and registration of
the Will, the defendant No.1 has also got called for the
thumb register and document registered sheets produced
from the sub-registrar’s office. They produced the same by
filing affidavit before this Court on 23.10.2025. The same is
not challenged by the plaintiff. Since the will is registered
according to law, same is presumed to be genuine will,
until the contrary is proved by the plaintiff. It is submitted
that as per Sec.102 of Evidence Act and as observed by
the Hon’ble High Court of Karnataka, in
W.P.No.26645/2012 filed by the plaintiff dated 25.03.2014,
the initial onus is always on the plaintiff, but if he
discharges that onus and makes out a case, then onus on
the defendant to prove such circumstances if any to
79 O.S.No.4832/2007
disentitle the plaintiff to the same. Having regard to the
facts of the above case, the plaintiff has not stepped into
witness box to discharge the initial onus upon him.
Therefore, the plaintiff has miserably failed to prove his
case, hence, the above suit is liable to be dismissed. Any
amount of evidence of PA holder who had no personal
knowledge about the facts and he has not disputed the Will
at all, hence, his evidence has no evidentiary value. As
held by the Apex court in Civil Appeal No.2869-2870/2010
dated 01.10.2019, Civil Appeal No.9642/2010, dated
10.04.2024 and AIR 2005 SC 439), power of attorney
holder cannot depose on behalf of the principal about the
facts within the knowledge of the principal. Therefore, there
is no plaintiff’s evidence in the above case, as the evidence
of PW-1 cannot be considered at all. Since the plaintiff has
not led his evidence or disputed the Will on oath by
stepping into witness box, the onus does not lie with the
80 O.S.No.4832/2007
defendants to prove their case unless the plaintiff proves
his case. Therefore, the suit of the plaintiff is liable to be
dismissed. Even otherwise, the 1st defendant has examined
herself as D.W.1 and another witness who identified the
signature of his father who signed the Will as attesting
witness as D.W.2 (Section 69 of Evidence Act) and original
Will is produced and marked before this Court as Ex.D.34.
Even the plaintiff produced the certified copy of the same
and admitted it as that of Smt.Dhanabhgyammal. The
defendants have also got the documents to prove that the
Will was registered as per law before the concerned sub-
registrar by obtaining the thumb impression of
Smt.Dhanabhgyammal in the sub-registrar office by way of
affidavit and documents dated 23.10.2025. The same is not
disputed by the plaintiff. As per the judgment of Hon’ble
Apex Court in 2025 Live Law (SC) 734, it is held that “a
registered Will carries a presumption of genuineness”.
81 O.S.No.4832/2007
Even the judgment of Apex Court in 1995 Supreme (SC)
335 supports the case of the defendant and throws the light
on the false allegations of the plaintiff without any reasons.
AIR 1989 Kerala 228 support the case of the defendants in
proof of the Will as contemplated under law. It is submitted
that both the attesting witnesses to the Will are no more.
The contention of the plaintiff that the defendants have not
produced the death certificates is of no consequence.
When the fact of death is specifically asserted on oath and
remains unchallenged by cogent evidence, mere non-
production of death certificate does not invalidate the mode
of proof adopted under Sec.69 of the Evidence Act. The
Hon’ble Supreme Court in AIR Online 2020 SC 644
(supra) has clarified that hyper-technical objections cannot
defeat substantive proof when statutory requirements are
otherwise complied with. In the above facts and
circumstances of the case, the 1st defendant has proved
82 O.S.No.4832/2007
that she has been treated as adopted daughter by
Sri.Poongavanam Naidu and Smt.Dhanabhgyammal during
their life time by giving status to her as daughter and her
children as their grandchildren by performing all duties and
care. Even otherwise, during her life time
Smt.Dhanabhgyammal executed will by bequeathing the
schedule property in favour of the defendants No.1 to 3 in
terms of the said instrument. The original Will is produced
and marked as Ex.D.34. Even plaintiff has also produced
the certified copy of the same and PW.1 has admitted that
it is of Smt.Dhanabhgyammal. No contra evidence is
adduced or produced by the plaintiff to disprove the said
Will or the suspicious circumstances about its execution.
The Will is proved in terms of Section 69 of evidence act. In
the said circumstances, the suit of the plaintiff is liable to be
dismissed with exemplary costs for having harassed the
defendants No.1 to 3 with oblique motives. Though the Will
83 O.S.No.4832/2007
includes the entire property including the eastern portion
sold in 1964, however, the same is effective or transfers
valid, right, title and interest in respect of the suit schedule
property over which Smt.Dhanabhgyammal has absolute
and indefeasible right only to the 1 st defendant. The
schedule described in the Will refers only to the property in
possession and enjoyment of Smt.Dhanabhgyammal at the
time of execution. Even otherwise, mere description of a
larger extent does not invalidate a Will when the intention
of the testatrix is clear to transfer her right only. It is settled
law that surplus description does not render the instrument
void when the identity of the property is ascertainable. The
allegation that the words “love and affection” were struck
off and replaced with the word “liking” does not constitute a
suspicious circumstance. Corrections in a registered Will,
when duly attested and registered before the Sub-
Registrar, do not invalidate the Will unless it is proved that
84 O.S.No.4832/2007
such correction was made after execution. The plaintiff has
not led any evidence to prove tampering or interpolation.
The plaintiff’s argument that if the 1 st defendant was
daughter, there was no necessity to execute a Will is
legally untenable. A Will is an instrument of testamentary
freedom. Even if a legal heir exists, the testator is free to
bequeath property in any manner. Therefore, execution of
Will cannot be termed suspicious merely because
succession was otherwise available under law. The burden
to prove suspicious circumstances lies initially on the
person alleging the same. Mere pleading that the Will is
forged, fictitious and bogus without cogent evidence does
not shift the burden. In the present case, except bald
allegations, no material is produced to establish fraud,
coercion, undue influence or lack of sound disposing mind.
The contention regarding non-examination of attesting
witness is without merit. In the present case, both attesting
85 O.S.No.4832/2007
witnesses were not available at the time of evidence.
Therefore, the defendants have rightly invoked Sec.69 of
the Indian Evidence Act. The signature of the attesting
witness has been identified by DW.2. The original Will is
produced and marked as Ex.D.34. The registration records
along with thumb impression register have been
summoned from the Sub-Registrar Office. Hence, the
statutory requirement stands complied with. The plaintiff’s
reliance on adverse inference under Sec.114(g) of the
Evidence Act is misconceived. When primary documentary
evidence including original Will (Ex.D.34) and registration
records are produced and marked without objections, no
adverse inference can be drawn. On the other hand,
adverse inference has to be drawn against the plaintiff for
not having entered into witness box. The argument that the
scribe or Advocate was not examined is not fatal. Law does
not mandate examination of scribe if attestation and
86 O.S.No.4832/2007
execution are otherwise proved in accordance with law.
The plaintiff has not disputed the signature of the testatrix
through proper evidence. The plaintiff has admitted in
cross-examination that certified copy of the Will produced
by him is that of Smt.Dhanabhgyammal. Admission is the
best evidence under the Evidence Act. Having produced
and relied upon the certified copy, the plaintiff cannot
approbate and reprobate. The plaintiff having failed to
establish his case with cogent documentary and oral
evidence, the issues 1 to 5 are liable to be answered
against the plaintiff. Since the defendants No.1 to 3 have
established their case with cogent documentary and oral
evidence, the additional issue No.1 framed has
substantially proved. Hence, the same has to be answered
in favour of the defendants No.1 to 3 in the affirmative.
Consequently, the above suit is liable to be dismissed. That
the defendants No.1 to 3 have proved and established their
87 O.S.No.4832/2007
case by cogent documentary and oral evidence that they
are the absolute owners of the suit schedule property
having acquired the same under the registered will dated
09.02.1995 executed by Smt.Dhanabhgyammal. The
plaintiff or any other members of his family have failed to
prove their case in any manner. The plaintiff with ulterior
motives and malafide intentions has filed the above suit to
gain wrongfully. Therefore, defendants No.1 to 3 have
prayed to dismiss the suit with exemplary cost.
10. Heard arguments. Perused materials available
on record.
11. My findings on the above issues are as under –
ISSUE NO.1 : In the Negative,
ISSUE NO.2 : In the Negative,
ISSUE NO.3 : In the Affirmative,
ISSUE NO.4 : In the Negative,
Addl. ISSUE NO.1 : Partly Affirmative,
88 O.S.No.4832/2007
ISSUE NO.5 : As per final order,
for the following:-
REASONS
12. ISSUE NO.1 AND ADDITIONAL ISSUE NO.1:-
Since these issues are inter-related with each other, they
are being taken up together for discussion at a stretch in
order to avoid repetition of facts.
This suit is filed by the plaintiffs against the defendants
to declare that the plaintiff has become the owner of the
suit schedule property on the death of Smt.Dhana
Bhagyammal. Direct the defendants to vacate and deliver
vacant possession of the schedule property to the plaintiff.
To direct an enquiry into mesne profits and such other
reliefs.
13. In order to prove plaintiff’s case, the Special
Power of Attorney holder of the plaintiff has examined as
P.W.1 and got marked Ex.P.1 to 9. Ex.P.1 is the
89 O.S.No.4832/2007
Special Power of Attorney executed by Sri.Arumugam in
favour of his son Sri.A.Pazhani. Ex.P.2 is the registered
Sale Deed dated 15.06.1994 under which the Plaintiff has
purchased the Eastern portion. Ex.P.2(a) is the typed copy
of Ex.P.2. Ex.P.3 is the certified copy of the Sale Deed
dated 16.08.1959 under which Sri.R.Poongavanam Naidu
purchased the entire property, Ex.P.4 is its typed copy of
Sale Deed dated 16.08.1959. Ex.P.5 is the certified copy of
the Orders dated 13.02.2007 passed by this Hon’ble Court
in O.S.No.912/2002 permitting the plaintiff to withdraw the
suit with liberty to file a fresh suit. Ex.P.6 is one of the
Receipt which the cost has been deposited. Ex.P.7 is the
Khatha extract. Ex.P.8 is the tax receipt and Ex.P.9 is the
plan approved by the BCC for construction of the house in
the Eastern portion and that in the name of the plaintiff.
14. The defendant No.1 is examined herself as
D.W.1 and got marked Ex.D.1 to 59 and one witness is
90 O.S.No.4832/2007
also examined on her behalf as D.W.2. Ex.D.1 and 2 are
the death certificates of Poongavanam Naidu and
Dhanabhagyammal. Ex.D.3 is the another death certificate
of Dhanabhagyammal. Ex.D.4 is the cemetery report.
Ex.D.5 is the G-tree. Ex.D.6 and 7 are the voter ID card of
Armugam and Rajeshwari. Ex.D.8 is the Letter of
Bengaluru City Co-operative Bank. Notices issued by Rent
Controller as Ex.D.9 and Ex.D.10. Ex.D.11 to Ex.D.13 are
the RPAD covers. Ex.D.14 and 15 are the BWSSB receipt
and bill. Ex.D.16 to 19 are the BESCOM bills and receipts.
Ex.D.20 is the BMP endorsement. Ex.D.21 is the
encumbrances certificate. Ex.D.22 is the letter of Binny
Mill. Ex.D.23 to 33 are the office copy of the legal notices.
Ex.D.34 is the Registered Will dated 09.02.1995. Ex.D.35
is the Marriage Invitation. Ex.D.36 is the BBMP Uttara
Patra. Ex.D.37 to D.39 are the three tax paid receipts.
Ex.D.40 is the certified copy of the delivery warrant in
91 O.S.No.4832/2007
Execution Case No.1457/2003. Ex.D.41 is the certified
copy of mahazar prepared in that petition. Ex.D.42 is the
certified copy of delivery warrant in that very petition.
Ex.D.43 is the mahazar. Ex.D.44 is the possession receipt.
Ex.D.45 to Ex.D.59 are the certified copies of Delivery
Warrants, Mahazar and possession certificates in
Ex.No.1458/03, 1459/03 and 1460/03.
15. The plaintiff claims that late Smt.Dhana
Bhagyammal died intestate without any legal heirs.
Therefore, as per the Hindu Succession Act, she acquired
the property after the demise of her husband
Sri.Poongavanam Naidu in the year 1993 who is none
other than brother of the plaintiff herein. Therefore, he is
claiming the suit schedule property as per Sec.15(1)(b) of
Hindu Succession Act.
16. On the other hand, the defendants No.1 to 3
claims their absolute ownership over the suit schedule
92 O.S.No.4832/2007
property on the strength of Will executed by late
Smt.Dhana Bhagyammal by bequeathing the suit schedule
property in favour of defendant No.1.
17. There are some of the admitted facts. The
plaintiff is the brother of Sri.Poongavanam Naidu is not
disputed. Originally,the suit schedule property acquired by
late Sri.Poongavanam Naidu is also not disputed. Eastern
portion of the schedule property was sold during the life
time of Sri.Poongavanam Naidu is also not disputed.
Smt.Dhana Bhagyammal was the wife of
Sri.Poongavanam Naidu and sister-in-law of the plaintiff
herein is also not disputed. Late Smt.Dhana Bhagyammal
acquired the suit schedule property after the demise of
Sri.Poongavanam Naidu was also not disputed. The
defendant No.1 in para No.7 of written statement not
disputed that Late Sri.Poongavanam Naidu and Smt.Dhana
93 O.S.No.4832/2007
Bhagyammal have no issues. Therefore, this couples
having no issues is also admitted by defendant No.1.
18. The plaintiff alleges that originally suit schedule
property was acquired by his brother late Sri.Poongavanam
Naidu, late Smt.Dhana Bhagyammal was the wife of
Sri.Poongavanam Naidu having no issues Smt.Dhana
Bhagyammal becomes the only legal heir of late
Sri.Poongavanam Naidu. Having no issues and the
successors as per the position of law, the plaintiff becomes
the legal heir of late Smt.Dhana Bhagyammal. Therefore,
he is entitled for the suit schedule property. Then in para
No.7, page No.6 of the plaint, the plaintiff admits that
marriage of defendant No.1 celebrated by his brother
Sri.Poongavanam Naidu and wife Smt.Dhana
Bhagyammal. The plaintiff denies the testament/ Will
executed by Late Smt.Dhana Bhagyammal bequeathing
the suit schedule property in favour of defendant No.1 and
94 O.S.No.4832/2007
alleges that having no other legal heirs Smt.Dhana
Bhagyammal died intestate, therefore, he has got right over
the suit schedule property as per Sec.15(1)(b) of Hindu
Succession Act. His son examined as P.W.1. However, he
depose the evidence having within his knowledge. Initially,
the plaintiff in the year 2000 has filed suit for permanent
injunction because of his ignorance. Later on, he has filed
an application under Order 23 Rule 1 of CPC application
seeking withdrawal of that suit with a liberty to file fresh suit
and this application is allowed with a liberty to file fresh suit
on the same cause of action. The same was ordered in the
year 2007 by allowing the said application. Then, the
plaintiff has filed the suit for declaration and possession
against the defendants.
19. The defendants on the other have taken two
defences, one is she is the adopted daughter of Late
Sri.Poongavanam Naidu and Smt.Dhana Bhagyammal and
95 O.S.No.4832/2007
she has also taken another defence that she being a only
legal heir of the said couple acquired the property by virtue
of Will executed by Late Smt.Dhana Bhagyammal and also
produced the document which is marked as Ex.D.34.
20. In order to prove her case with respect to the
adoption and stating that she is a adopted daughter she
has filed the photographs with the invitation card of
marriage which is marked as Ex.D.35. However, only filing
of the photographs and the invitation card is not enough to
substantiate the defence of the defendants that she is the
adopted daughter of Late Sri.Poongavanam Naidu and his
wife Smt.Dhana Bhagyammal. On the other hand, in her
cross-examination recorded on 29.07.2019 in page No.5
and para No.5 she herself admits that no ceremonies are
conducted to adopt her. For the sake of convenience, the
same is reiterated that “Sri.Poongavanam Naidu and
Smt.Dhana Bhagyammal have looked after me as their
96 O.S.No.4832/2007
daughter and not taken in adoption”. As such, this Court
without there being giving and taking ceremony as the law
mandates in adoption cannot believe and come to the
conclusion that she is the adopted daughter of
Sri.Poongavanam Naidu and Smt.Dhana Bhagyammal.
21. The another defence taken by defendant No.1
is that the testament succession i.e. Will executed by Late
Smt.Dhana Bhagyammal bequeathing suit schedule
property in favour of defendant No.1. Initially an application
was filed by the defendants to examine the Sub-Registrar.
Later on, the plaintiff challenge the order of this Court
rendered on I.A.No.17 and 18 dated 01.06.2018. In the
said Writ Petition No.25918/2018 filed by the plaintiff in
para No.4 of the said order Hon’ble High Court of
Karnataka, Bengaluru has observed that “The learned
counsel for the petitioner while not disputing that the
97 O.S.No.4832/2007
attesting witness was aged about 87 years as of the
year 2018 submits that the attesting witness is alive
and he can be examined in-chief on his purported
attestation, he argues that if his evidence is kept out
on the ground that he has poor eye sight, the petitioner
would lose the valuable right of cross-examination to
bring on record the circumstances that would
destroyed the credibility of the 1 st respondent’s case
that this witness has attested the aforesaid testament
and Will”. In para No.5, Hon’ble High Court of Karnataka,
Bengaluru has also observed that “however, this Court
must observe that if, at this length of time Sri.Sahadev
Swamy cannot be 1st examined for any reason other than
poor eye sight, it should be opened to 1 st respondent to
examine who could be summoned has may be permissible
under Sec.69 of Indian Evidence Act, 1872″. With this
observation, the Hon’ble High Court of Karnataka,
98 O.S.No.4832/2007
Bengaluru has directed this Court to proceed as
permissible under Sec.69 of Indian Evidence Act, 1872. In
this regard, D.W.1 in her cross-examination stated that the
eye sight of one attestor witness is weak by name
Sahadevan was taking treatment and his eye sight has
become weak and witness also volunteers that the said
other witness has expired. It is necessary to reiterate under
Sec.69 of Indian Evidence Act, 1872
69. Proof where no attesting witness found.–If no
such attesting witness can be found, or if the
document purports to have been executed in the
United Kingdom, it must be proved that the attestation
of one attesting witness at least is in his handwriting,
and that the signature of the person executing the
document is in the hand writing of that person”.
As per this provision the Will has to be prove basically
as per the provision under Sec.68 of Indian Evidence Act. If
in case of non-availability of the attestor then the person
who is in-acquaintance with the signature of one of the
99 O.S.No.4832/2007
attestor has to be examine as per Sec.69 of Indian
Evidence Act.
22. Keeping this position of law, on perusal of the
evidence of D.W.2 herein, D.W.2 was the son of one of the
attestor of the Will by name S.Sahadeva Swamy. D.W.2 by
name S.Nagaraju was the son of one of the attesting
witness to the Will which is got marked as Ex.D.34. Page
No.3, 4, 5 and 6 umpteen number of questions were posed
to D.W.2 with respect to his name, profession, place and
residence of the father of D.W.2. However, a detailed
discussion about those questions is not necessary for the
reason that in this case the Court is required to decide
whether the father of D.W.2 has subscribed his signature to
alleged Will Ex.D.34. No suggestion was posed by learned
counsel for the plaintiff that the father signature is not found
in the Will and also not suggested Ex.D.34(a) is not your
father signature. This Court relied on the ratio laid down by
100 O.S.No.4832/2007
Hon’ble Apex Court in AIR 2002 SUPREME COURT 3652,
Sarwan Singh V/s. State of Punjab, wherein the Hon’ble
Apex Court has concluded as follows:-
“It is a rule of essential justice that whenever the
opponent has declined to avail himself of the opportunity to
put his case in cross-examination it must follow that the
evidence tendered on that issue ought to be accepted.”
If we apply this ratio to cross-examination of D.W.2
has already observed, learned counsel for the plaintiff has
not denied by suggesting that Ex.D.34(a) is not your
father’s signature or your father signature is not found on
the Will, then the evidence-in-chief of D.W.2 is to be
accepted and that portion of the evidence is presumed to
be true. Then, the learned counsel for the plaintiff also
argued at length that scribe has to be examined in proving
this Will as scribe of the Will the Ex.D.34 is the counsel for
defendants on record he should be entered into the box
and examined. But, a scribe cannot become a attesting
101 O.S.No.4832/2007
witness. Then he has also argued at length with respect to
the suspicious circumstances. In my humble opinion, Will
can be executed in favour of any person. Here in the case
on hand, presuming that defendant No.1 is not a adopted
daughter as well as the legal heirs of Smt.Dhana
Bhagyammal, even other wise she (Late Smt.Dhana
Bhagyammal) admittedly being the only legal heir of
Sri.Poongavanam Naidu can execute a Will by
bequeathing the suit schedule property in favour of
defendant No.1. The testator has also mentioned the
reason in the Will itself as to why she has bequeathing the
property to defendant No.1/Shakunthala. The recitals of
that portion of the Will is reiterated by this Court at the time
of discussing the Judgments cited by the learned counsel
for plaintiff.
102 O.S.No.4832/2007
23. Then, this Court has not relied much on point of
registration of Will as well as the affidavit filed by Sub-
Registrar with respect to the Will as a position of law is very
clear that Will shall not be a compulsorily registered
document. Then, learned counsel for plaintiff has cited the
following judgments:-
1. (2012) 6 SCC 430 – A.Shanmugam V/s. Ariya
Kshatriya Rajakula Vamsathu Madalaya Nandhavana
Paripalanai Sangam Represented by its President and
others.
2. (2024) 12 S.C.R. 1884 : 2024 INSC 1021 –
Mallavva and another V/s. Kalsammanavara Kalamma
(Since Dead) by Legal Heirs and others.
3. H.Venkatachala of Vs. Iyengar
B.N.Thimmajamma and others, reported in AIR 1959 SC
443.
4. Babu Singh and others Vs. Ram Sahai @ Ram
Singh- AIR 2008 SC 2485.
5. 2010(5) SCC 274 – S.R.Srinivasa and others Vs.
S.Padmavathamma.
103 O.S.No.4832/2007
6. 2010 (14) SCC 266 Gopal Swaroop Vs. Krishna
Murari Mangal and others.
7. ILR 2008 KAR 2115 – J.T.Soorappa and Anr. V/s.
Sri.Satchidanandendra Saraswathi Swamiji Public
Charitable Trust and Others.
8. AIR 2006 SC 1895 – Joseph Anthony Lazarus (D)
by LRs., V/s. A.J.Franciz.
9. AIR 2007 SC 614 – Niranjan Umeshchandra Joshi
V/s. Mrudula Jyothi Rao and Others.
10. 2015 (4) SCC 601 – Om Prakash (D) by Lrs., V/s.
Shanthidevi and others.
11. ILR 2007 KAR 1484 – WE Sambadam Vs. WE
Sathyanarayan and others.
I have carefully gone through the said Judgments. The
Hon’ble High Court of Karnataka, Bengaluru and Hon’ble
Apex Court, has re-iterated the well settled mode of
proving will. Keeping in view the said modes, I have
carefully perused evidence examined by both the parties.
D.W.2 (attesting witness/ son) while conducting the cross-
examination of D.W.1 and D.W.2 the defendant has made
104 O.S.No.4832/2007
an attempt to elicit some admissions but failed. Nothing
has been elucidated to draw an inference that it is will is
shrouded with suspicious circumstances. The recitals of
the Will is reiterated for the sake of convenience as
follows:-
“WHEREAS I have got a daughter by name
Smt.Shakuntala (defendant No.1 herein), aged about 29
years. She is married. She is having two children viz.
Chi.Manigandan aged 4 years, Chi.Shashikumar, aged
2 years. My daughter and my grand children are
residing with me. My daughter Smt.Shakuntala with
atmost love and affection is looking after me well at my
old age. I have atmost likely towards my daughter
Smt.Shakuntala and grand children. I do hereby make
the following bequest.”
In my humble opinion, besides the defendant No.1 has
proved Will marked as Ex.D.34 as per Sec.69 of Indian
Evidence Act and the defendant No.1 followed procedural
restrictions imposed by Hon’ble High Court of Karnataka,
Bengaluru and Hon’ble Apex Court.
105 O.S.No.4832/2007
24. The learned counsel for the defendants has
relied on following citations:-
i). AIR 1970 SC 1286 (Debi Prasad (dead) by LRs V/
s. Smt.Tribeni Devi and others)
The defendant No.1 in the case on hand has clearly
admitted in her cross-examination that she has brought up
by late Sri.R.Poongavanam Naidu and Smt.Dhana
Bhagyammal and not adopted by them. Therefore, the ratio
laid down in this Judgment is not applicable to this case.
ii) (2010)10 SCC 512 (B) (Man Kaur (dead) by Lrs.
V/s. Hartar Singh Sangha)
In the case on hand, the power of attorney holder of
plaintiff was examined. It is settled law that the power of
attorney holder will adduce evidence about the facts with in
his knowledge and right of appointment of power of
attorney holder cannot be denied. Therefore, the ratio laid
down in this Judgment cannot be applicable to this case.
106 O.S.No.4832/2007
iii) AIR Online 2020 SC 644 (V.Kalyanaswamy
(dead) by LRs. And another V/s. L.Bakthavatsalam
(dead) by Lrs. And others)
This Court has also come to the conclusion that the
Will is proved in accordance with law. In view of the same, I
answer Issue No.1 in the Negative and Additional Issue
No.1 in Partly Affirmative.
25. ISSUE NO.2:- This issue is with respect to the
limitation of the suit filed by the plaintiff. As per Article 58 of
Limitation Act any suit seeking declaration has to be filed
within three years. Keeping this position of law, on perusal
of the record, in para No.15 of the plaint the cause of action
aroused for the plaintiff is on 23.03.2000. The plaintiff has
filed one document which is got marked as Ex.P.5 which is
the order passed by this Court in O.S.No.912/2002. This
O.S.No.912/2002 was initially filed by the plaintiff seeking
the relief of permanent injunction against the defendants.
107 O.S.No.4832/2007
Later on he realized that suit is to be filed for declaration of
possession against the defendant No.1 herein. Therefore,
he has filed the application under Order 23 Rule 1(3) of
CPC. Wherein, this Court has passed the order on
13.02.2007 by allowing the application filed by the plaintiff
under Order 23 Rule 1(3) of CPC with a liberty to file fresh
suit on the same cause of action. Then, this suit was filed
by the plaintiff on 21.04.2007.
26. As per para No.15 of the plaint, the cause of
action aroused in the year 2000 and initially suit
O.S.No.912/2002 was filed by the plaintiff against the
defendant No.1 in the year 2002 is within two years. Then,
the time spent by the plaintiff in that litigation till 2007 he
falls his ignorance that he do not know to file a suit for
declaration and possession, therefore, the suit has to be
file for declaration and possession. He has filed the
application in the year 2007 before this Court. Therefore, in
108 O.S.No.4832/2007
my humble opinion the duration 2002 to 13.02.2007 is
spent will comes under Sec.14 of Limitation Act. In the
said provision, it is stated that “if for any bonafide reason
the plaintiff has spent the time with respect to the
other suits on the said suit schedule property then that
duration has to be considered as to be exempted for
the reason that it is for bonafide reason”. Therefore, by
considering this duration between 2002 to 13.02.2007 is
exempted for the aforesaid reasons as contemplated under
Sec.14 of Limitation Act. Therefore, I answer Issue No.2 in
Negative.
27. ISSUE NO.3:- Then the next issue framed by
this Court is on the Court fee paid by the plaintiff is
insufficient. The defendant No.1 in her written statement at
para No.18, 21 and defendants No.2 and 3 in their written
statement at para No.7 have taken the defence that the
Court fee paid by the plaintiff is insufficient. On perusal of
109 O.S.No.4832/2007
records, as on the date of filing of the suit the plaintiff has
shown the value of the suit schedule property as
Rs.5,00,000/-. Further except denying, the defendants
have not produced anything to draw an inference that the
value of the property was more than the valuation made by
the plaintiff. Besides, even no admissions are elicited from
the mouth of the plaintiff or witness of the plaintiff, the
material available on record are sufficient to conclude
except oral assertion made by the defendants. There is
nothing on record to conclude the value of the property as
on the date was more than Rs.5,00,000/-. Besides, the
plaintiff calculated the value of the property for
Rs.5,00,000/- and paid the same. Hence, the Court fee
paid by the plaintiff is sufficient. In view of the same, I
answer this issue in the Affirmative.
110 O.S.No.4832/2007
28. ISSUE NO.4:- In view of observations made in
the Issues No.1 to 3 and additional Issue No.1, I answer
this Issue in the Negative.
29. ISSUE No.5:- In view of findings on the above
issues, I proceed to pass the following:-
ORDER
The suit of the plaintiffs is hereby
dismissed.
Both the parties shall bear their
own costs.
Draw decree accordingly.
(Dictated to the Stenographer, directly on Computer,
corrected and then pronounced by me in open Court on this 6th
day of June, 2026).
Digitally signed by
NISHARANI NISHARANI A C
AC Date: 2026.06.09
17:32:10 +0530
(NISHARANI A.C)
III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
111 O.S.No.4832/2007
ANNEXURE
Witnesses examined on behalf of Plaintiff:-
P.W.1 Sri.A.Pazhani
Documents marked on behalf of Plaintiff:-
Ex.P.1 Special Power of Attorney. Ex.P.2 Registered Sale Deed dated 15.06.1994. Ex.P.2(a) Typed copy of Ex.P.2. Ex.P.3 Certified copy of the Sale Deed dated 16.08.1959. Ex.P.4 Typed copy of the Sale Deed dated 16.08.1959. Ex.P.5 Certified copy of the Orders dated 13.02.2007
passed by this Hon’ble Court in O.S.No.912/2002.
Ex.P.6 One of the Receipt which the cost has been
deposited.
Ex.P.7 Khatha extract. Ex.P.8 Tax receipt. Ex.P.9 Plan approved by the BCC.
Witnesses examined on behalf of Defendants:
D.W.1 Smt.Shakuntala D.W.2 Sri.S.Nagaraju
Documents marked on behalf of Defendants:
112 O.S.No.4832/2007
Ex.D.1 & 2 Death certificates of Poongavanam Naidu and
Dhanabhagyammal.
Ex.D.3 Another death certificate of
Dhanabhagyammal.
Ex.D.4 Cemetery report.
Ex.D.5 G-tree.
Ex.D.6 & 7 Voter ID card of Armugam and Rajeshwari.
Ex.D.8 Letter of Bengaluru City Co-operative Bank.
Ex.D.9 & 10 Notices issued by Rent Controller.
Ex.D.11 to 13 RPAD covers.
Ex.D.14 & 15 BWSSB receipt and bill.
Ex.D.16 to 19 BESCOM bills and receipts.
Ex.D.20 BMP endorsement.
Ex.D.21 Encumbrances certificate.
Ex.D.22 Letter of Binny Mill.
Ex.D.23 to 33 Office copies of the legal notices.
Ex.D.34 Registered Will dated 09.02.1995.
Ex.D.35 Marriage Invitation.
Ex.D.36 BBMP Uttara Patra.
Ex.D.37 to 39 Three tax paid receipts.
Ex.D.40 Certified copy of the delivery warrant in
Execution Case No.1457/2003.
Ex.D.41 Certified copy of mahazar prepared in that
petition.
Ex.D.42 Certified copy of delivery warrant in that very
petition.
113 O.S.No.4832/2007
Ex.D.43 Mahazar.
Ex.D.44 Possession receipt.
Ex.D.45 to 59 Certified copies of Delivery Warrants, Mahazar
and possession certificates in Ex.No.1458/03,
1459/03 and 1460/03.
Digitally signed by
NISHARANI NISHARANI A C
AC Date: 2026.06.09
17:32:20 +0530
(NISHARANI A.C)
III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
