Vijaya vs Madamma on 2 April, 2026

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    Bangalore District Court

    Vijaya vs Madamma on 2 April, 2026

    KABC0A0015322007
    
    
    
    
        C.R.P.67                                               Govt. of Karnataka
          Form No.9 (Civil)
           Title Sheet for
        Judgments in Suits
              (R.P.91)
    
                   TITLE SHEET FOR JUDGMENTS IN SUITS
          IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
        AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
    
                    Dated this the 2nd day of April, 2026.
    
                                 PRESENT:
    
             Sri BALAPPA APPANNA JARAGU, B.Sc., LL.M.,
             XXVIII Additional City Civil and Sessions Judge,
                               Bengaluru.
                       ORIGINAL SUIT No.25594/2007
        PLAINTIFF :              Smt. Vijaya,
                                 D/o. Late Chikka Abyanna,
                                 W/o. Nagaraj C.,
                                 Aged about 43 years,
                                 Residing at No.486, 1st Main,
                                 7th 'A' Cross, Vijayanagar II Stage,
                                 Bangalore - 560 010.
                                 (By Sri Sunil R., Advocate)
    
                                 -VERSUS-
        DEFENDANTS :          1. Smt. Madamma,
                                 W/o. Late Chikka Abyanna,
                                 Aged about 70 years.
                              2. Smt. Sharadamma,
                                 W/o. Late Chikka Abyanna,
                                 Aged about 60 years.
    
    
    
    
                                                                       Cont'd..
                 2              O.S.No.25594/2007
    
        3.   Mahesh,
             S/o. Late Shamanna,
             Aged about 35 years.
       4.    Smt. Rathnamma,
             W/o. Raghu,
             Aged about 49 years.
       5.    Smt. Bhagya,
             Since dead by her LR's.
    5(a).    Mohan,
             S/o. Late Annayappa,
             Aged about 68 years.
    5(b).    Anup,
             S/o. Mohan and Smt. Bhagya,
             Aged about 31 years.
    5(c).    Smt. Akshaya,
             D/o. Mohan and Smt. Bhagya,
             Aged about 29 years.
             Defendants No.5(a) to 5(c) are
             residing at No.453, 'A' 11th Main
             Road, RMV Rajamahal Villas
             Extension, Sadhashivanagar,
             Bengaluru - 560 080.
      6.     Smt. Leela,
             W/o. Devaraj,
             Aged about 45 years.
      7.     Smt. Prabha,
             W/o. Jayachandra,
             Aged about 36 years.
      8.     C. Narayanan @ Babu,
             Since dead by his Lrs;
    8(a).    Smt. Kruparani,
             W/o. Late Narayana @ Babu,
             Aged about 46 years.
    8(b).    Master Manith,
             S/o. Late Narayana @ Babu,
             Aged about 11 years,
             Since minor, represented by
                                     3                     O.S.No.25594/2007
    
                               his natural Guardian and
                               mother defendant No.8(a).
                          8(c). Kumari Prathiksha,
                                D/o. Late Narayana @ Babu,
                                Aged about 6 years,
                                Since minor, represented by
                                his natural Guardian and
                                mother defendant No.8(a).
                               All are residing at No.486,
                               1st Main, 7th Cross, Vijayanagar
                               2nd Stage, Bangalore - 560 040.
                               (D.5 and 8 : Dead)
                               (D.1 by Sri O.K. Harish, D.6 by Sri H.R.
                               Sreepada, D.3 by Sri T. Seshagiri Rao,
                               (D.8(a) to 8(c) by Sri Shanmukhappa,
                               Advocates)
                               (D.5(a) to 5(c), D.7 : Ex-parte)
    ---------------------------------------------------------------------
    Date of Institution of the Suit :                    15-03-2007
    
    Nature of the Suit (Suit on          :               Partition Suit
    pronote, Suit for declaration
    and possession, Suit for
    injunction etc,)
    Date of the commencement             :               09-07-2018
    of recording of the evidence
    
    Date on which the Judgment :                         02-04-2026
    was pronounced
    ---------------------------------------------------------------------
                                        Year/s Month/s            Day/s
                                       ----------------------------------
    Total duration :                   19years, --month, 17days.
    ---------------------------------------------------------------------
    
                            (BALAPPA APPANNA JARAGU)
                            XXVIII Additional City Civil and
                          Sessions Judge, Mayohall, Bengaluru.
    
                            JUDGMENT
    

    This suit is instituted by the plaintiff against the

    defendants for relief of partition and separate
    4 O.S.No.25594/2007

    SPONSORED

    possession of her 1/4th share in suit schedule

    mentioned properties by metes and bounds. The

    plaintiff has further sought for directing the defendants

    to put the plaintiff in separate possession of her 1/4th

    share in suit schedule properties and grant of such

    other reliefs.

    2. The case of the plaintiff in brief is as under:-

    That, defendant No.1 is first wife and defendant

    No.2 is second of wife of Chikkabyanna. Plaintiff and

    deceased Shamanna are children of Chikkabyanna

    through defendant No.1. Defendants No.4 to 8 are

    children of Chikkabyanna through defendant No.2. Late

    Chikkabyanna during his lifetime acquired suit

    schedule properties and he died intestate. Suit schedule

    properties are joint family properties of plaintiff and

    defendants, all legal heirs of Chikkabyanna are in joint

    possession of the same. Plaintiff has been requesting

    defendant No.1, defendant No.2 and defendant No.8 to

    effect partition in suit properties and allot her share in

    suit properties. The plaintiff has also issued legal notice

    to defendants calling upon them to effect partition in
    5 O.S.No.25594/2007

    suit properties and allot her legal share. In spite

    receiving notice, defendants neither chosen to effect

    partition in suit properties nor replied for the same. On

    these pleadings, the plaintiff has prayed to decree suit

    as prayed in plaint.

    3. In response to the service of suit summons,

    defendants No.1 to 4, 6 and 8 have tendered their

    appearance before the court through their respective

    counsels and contested the case. The defendant No.1,

    6, 8, 8(a) to 8(c) have filed their written statement.

    During pendency of suit, original defendants No.5 and 8

    are died, by filing necessary application their LR’s are

    brought on record. Even after service of the summons,

    the defendant No.5(a) to (c) and defendant No.7 have

    not tendered their appearance before the court through

    their counsels and contested the suit, consequently

    they have placed ex-parte.

    4. The contents of written statement of

    defendant No.1 in brief is as under :-

    It is admitted that, plaintiff and deceased

    Shamanna are children of defendant No.1 through
    6 O.S.No.25594/2007

    Chikkabyanna. It is also admitted, suit schedule

    properties are acquired by late Chikkabyanna and he

    died intestate. It is further admitted, plaintiff and

    defendants are in joint possession and enjoyment of

    suit properties being legal heirs of late Chikkabyanna.

    It is only denied, plaintiff has demanded her share in

    suit properties and issued legal notice. It is specifically

    contended, defendant No.1 being legally wedded wife of

    late Chikkabyanna, she is entitled for her 1/4th share

    in suit schedule properties. On these grounds,

    defendant No.1 requested the court to determine her

    share in suit properties.

    5. The contents of written statement of

    defendant No.6 in brief is as under :-

    That, plaintiff and defendants are legal heirs of

    late Chikkabyanna except these persons no other

    persons are there to succeed estate of late

    Chikkabyanna. All the parties are entitled to succeed

    and have 1/8th share in suit schedule properties. On

    these grounds, defendant No.6 requested the court to

    allot her 1/8th share in suit schedule properties by

    metes and bounds.

    7 O.S.No.25594/2007

    6. The contents of written statement of

    defendants No.8, 8(a) to 8(c) in brief is as under :-

    The suit filed by plaintiff is not maintainable in

    law and on facts and same is liable to be dismissed.

    Plaintiff is not in possession of any of suit schedule

    properties. As such, plaintiff has not paid proper court

    fees. Suit of the plaintiff is not maintainable for non-

    joinder of necessary parties. Suit of the plaintiff is

    barred by law of limitation. Chikkabyanna executed a

    registered Will dated 25.09.1986 disposing of all his

    properties in favour of his children and his wives. All

    the beneficiaries under Will dated 25.09.1986 taken

    their respective shares. Under said Will, site No.2

    measuring 40X 30 feet bequeathed to plaintiff and she

    has sold same long back. Plaintiff after selling site

    allotted to her under Will purchased site in Papireddy

    palya. Thereby plaintiff has accepted share given to her

    by her father under Will dated 25.09.1986, therefore

    suit filed by plaintiff is frivolous and mischievous. The

    plaintiff has deliberately suppressed execution of Will

    dated 25.09.1986 since there is no joint family
    8 O.S.No.25594/2007

    properties available for partition, plaintiff cannot

    maintain present suit. It is denied that, late

    Chikkabyanna died instate. The plaintiff having taken

    benefit under Will dated 25.09.1986 has come up with

    false suit claiming share in properties which exclusively

    belonging to defendant No.8. The plaintiff suppressing

    Will executed by Chikkabyanna issued legal notice,

    same has been suitably replied. There is no cause of

    action for the plaintiff to file present suit.

    Chikkabyanna bequeathed property No.26, Old

    Khaneshumari No.28, 6th Cross, Hosahalli

    (Vijayanagar), measuring 5335 square feet in favour of

    defendant No.1. The defendant No.1 gifted said property

    in favour of defendant No.3 by executing gift deed dated

    27.11.2003. Defendant No.3 is son of Shamanna, who

    is own brother of plaintiff. In gift deed there is specific

    reference to Will dated 25.09.1986 executed by

    Chikkabyanna. The plaintiff and other sisters have sold

    properties bequeathed to them under Will in favour of

    Sri S.T. Jayaram under sale deed dated 30.10.1992. In

    said sale deed, there is specific reference to Will dated

    25.09.1986 executed by Chikkabyanna. Plaintiff has
    9 O.S.No.25594/2007

    suppressed fact of selling of property in favour of S.T.

    Jayaram. The plaintiff deliberately not disclosed

    property bearing No.15, formally No.8 out of Sy.No.213,

    situated at 3rd Main Road, Hosahalli Village,

    Vijayanagar, Bengaluru in schedule to plaint and what

    is included in a portion given to defendant No.8 and his

    mother. Defendant No.3 executed Joint Development

    Agreement in M/s. Kriparaj Developers in respect of

    property bearing No.26, Old No.28 and said developers

    have constructed nearly 20 flats and those flats were

    sold by defendant No.3. Under Will dated 25.09.1986

    two wives and children of Chikkabyanna got properties

    and said Will is acted upon. Hence, suit for partition

    filed by plaintiff is devoid of merits. On these grounds,

    defendants requested to dismiss suit filed by plaintiff.

    7. On the basis of above pleadings of both parties,

    this court has framed the following :-

    ISSUES

    1. Whether the plaintiff proves that the
    suit properties are the joint family
    properties liable for partition?

    10 O.S.No.25594/2007

    2. Whether the plaintiff is entitle for
    1/4th share?

    3. Whether the deed of cancellation of
    Will dated 25.09.1986 is obtained
    playing fraud from defendant No.8
    against Chikkabyamma?

    4. Whether the plaintiff proves that the
    Will dated 25.09.1986 is created
    obtained by playing fraud?

    5. Whether the plaintiff proves that the
    sale deed dated 05.07.1989 created by
    defendant No.8 in favour of Bramh
    developer is Ayavaharika not binding
    on the plaintiff?

    6. Whether the suit is value properly and
    court fee paid is sufficient?

    7. Whether suit is time barred?

    8. Whether the plaintiff is estopped from
    claiming share in the properties as she
    being a benefic under the Will dated
    25.09.1986 and all the properties were
    disposed off to plaintiff and defendant
    through the said Will?

    9. What order or decree?

    11 O.S.No.25594/2007

    ADDITIONAL ISSUES DATED 28.03.2019

    1. Whether the defendant No.8 proves
    that late Chikkabayyanna while he was
    in a sound disposing state of mind has
    duly executed the Will dated
    25.09.1986?

    ADDITIONAL ISSUES DATED 04.07.2023.

    1. Whether defendant proves that suit is
    barred for mis-joinder and non-joinder
    of necessary party?

    2. Whether defeating No.8 proves that
    suit is barred by limitation?

    3. Whether the plaintiff proves that the
    suit properties are the joint array
    properties liable for partition?

    4. Whether the plaintiff is entitled for
    1/4th share?

    5. Whether the deed of cancellation of
    Will dated 25.09.1986 is obtained by
    playing fraud from defendant No.8
    against Chikkabyamma?

    6. Whether the plaintiff proves that Will
    dated 25.09.1986 is created and
    obtained by playing fraud?

    7. Whether the plaintiff proves that the
    sale deed dated 05.07.1989 created by
    12 O.S.No.25594/2007

    defendant No.8 in favour of Bramh
    Devra is Ayavaharika not binding on
    the plaintiff?

    8. Whether the suit is valued property
    and court fee is paid is sufficient?

    9. Whether suit is time barred?

    10.Whether the plaintiff estopped from
    claiming share in the properties as she
    being a benefic under the Will dated
    25.09.1986 and all the properties were
    disposed off to plaintiff and defendant
    through the said Will?

    8. To substantiate the case of the plaintiff, the

    plaintiff examined himself as PW1 and produced in 53

    documents as Exs.P1 and Ex.P.53. The defendant

    No.8(a) examined himself as D.W.2 and one attesting as

    D.W.2 and produced in as Exs.D.1 to D.8.

    9. I have heard the arguments of learned counsel

    for plaintiff and learned counsel for defendant No.8 and

    I have perused the case records.

    10. My answers to the above issues are as under-

    ISSUE No.1 – In the negative;

    ISSUE No.2 – In the negative;

    13 O.S.No.25594/2007

    ISSUE No.3 – Struck off;

    ISSUE No.4 – Struck off;

    ISSUE No.5 – Struck off;

    ISSUE No.6 – In the affirmative;

    ISSUE No.7 – In the affirmative;

    ISSUE No.8 – In the affirmative;

    ADDL.ISSUE No.1 – In the affirmative;

    dated 28.03.2019

    ADDL.ISSUE No.1 – In the negative;

    dated 04.07.2023

    ADDL.ISSUE No.2 – In the affirmative;

    dated 04.07.2023

    ADDL.ISSUE No.3 – In the negative;

    dated 04.07.2023

    ADDL.ISSUE No.4 – In the negative;

    dated 04.07.2023

    ADDL.ISSUE No.5 – In the negative;

    dated 04.07.2023

    ADDL.ISSUE No.6 – In the negative;

    dated 04.07.2023

    ADDL.ISSUE No.7 – Does not arise.

    dated 04.07.2023

    ADDL.ISSUE No.8 – In the affirmative;

    dated 04.07.2023

    ADDL.ISSUE No.9 – In the affirmative;

    dated 04.07.2023
    14 O.S.No.25594/2007

    ADDL.ISSUE No.10 – In the affirmative;
    dated 04.07.2023

    ISSUE No.9 AND
    ADDL.ISSUE No.11 – As per final order,
    dated 04.07.2023

    for the following –

    REASONS

    11. ISSUES NO.1, 2, ADDITIONAL ISSUES No.3

    TO 6, ADDITIONAL ISSUE NO.10 DATED 04.07.2023,

    ADDITIONAL ISSUE No.1 DATED 28.03.2019 AND

    ISSUES No.8 :- As these issues are inter-related to each

    other and involves common appreciation of facts and

    evidence on record, findings on one issue are bearing on

    other issue, in order to avoid repetition of facts and for

    convenience sake, both issues are taken together for

    common discussion.

    12. On going through pleadings and evidence of

    parties, facts which are no more in dispute are that,

    defendants No.1 and 2 are wives of late Chikkabyanna.

    The plaintiff and deceased Shamanna are children of

    late Chikkabyanna through his first wife, who is

    defendant No.1. The defendants No.4 to 8 are children

    of late Chikkabyanna through his second wife, who is
    15 O.S.No.25594/2007

    defendant No.2. It s also no more in dispute that,

    Chikkabyanna died 21.03.1987. Death certificate of

    Chikkabyanna has been produced as per Ex.P.22.

    13. It is specifically pleaded in para – 5 of plaint

    and para – 3 of examination-in-chief of plaintiff, who is

    examined as P.W.1 that, Chikkabyanna during his

    lifetime acquired suit schedule properties are joint

    family properties, she herself and defendants being legal

    heirs of late Chikkabyanna are in joint possession and

    enjoyment of same.

    14. It is definite case of plaintiff that,

    Chikkabyanna died intestate without partitioning suit

    schedule properties between his legal heirs. On the

    other hand, contesting defendant No.8 and his legal

    heirs have specifically contended that, Chikkabyanna

    during his lifetime has executed a registered Will dated

    25.09.1986 disposing of his properties in favour of his

    children and his wives and all the beneficiaries under

    Will dated 25.09.1986 have taken their respective

    shares in properties held by late Chikkabyanna. It is to

    be noted here, original registered Will dated 25.09.1986
    16 O.S.No.25594/2007

    has been produced before court as per Ex.D.1. As per

    contents of Ex.D.1, it is clearly mentioned, late

    Chikkabyanna had acquired properties under registered

    partition deed dated 13.07.1960.

    15. It is vehemently argued on behalf of learned

    counsel for plaintiff that, late Chikkabyanna during his

    lifetime executed a registered Will dated 25.02.1972

    under which he has equally divided properties held by

    him between his legal heirs. Ex.D.1 is disputed Will. It

    is further argued that, Will not filed along with written

    statement.

    16. In order to prove due execution of Will, one of

    the attesting witnesses to Will namely Srinivas S., has

    been examined before court as D.W.1. The D.W.1 in his

    examination-in-chief has deposed, Chikkabyanna had

    executed Will dated 25.09.1986, thereby bequeathed

    properties owned by him, in his favour of his wives and

    children. It is further stated by D.W.1 that, said Will

    prepared by Chikkabyanna through Advocate Sri B.K.

    Bopaiah. The D.W.1 has identified his signature to Will

    which is marked as Ex.D.1(a).

    17 O.S.No.25594/2007

    17. The D.W.1 in his cross-examination had

    deposed, during month of September 1986,

    Chikkabyanna was admitted hospital for treatment. It is

    further say of D.W.1 that, contents of Will not read over

    to him. It is also deposed by D.W.1 in his cross-

    examination that, C. Narayanan @ Babu book him St.

    Martha’s Hospital wherein Chikkabyanna was taking

    treatment. Thereafter, C. Narayanan @ Babu took his

    father to Srirampura Sub-Registrar Office.

    18. It is further deposed by D.W.1 that, by holding

    hands of Chikkabyanna, they took him to Sub-Registrar

    Office. It is clearly admitted by D.W.1 that, before his

    death, Chikkabyanna was suffering from Kidney failure,

    cardio-respiratory infections. Chikkabyanna has not

    informed D.W.1 that, he is canceling Will executed by

    him.

    19. It is further deposed by D.W.1 that,

    Chikkabyanna was in hospital, he was totally tired and

    his health condition was not normal. It is further say of

    D.W.1 in his cross-examination, even in Sub-Registrar

    Office, Chikkabyanna was sitting as he was fully tired
    18 O.S.No.25594/2007

    and he was not in position to speak. It is admitted by

    D.W.1 in his cross-examination that, Chikkabyannawas

    not put his Thumb impression to documents in his

    presence. Further it is admitted, it is not informed to

    Chikkabyanna about contents of document.

    20. It is pertinent to note here that, defendants

    No.8(a), who is wife of late C. Narayanan @ Babu has

    been examined before court as D.W.2. The D.W.2 also in

    her evidence before court has deposed, her father-in-law

    viz., late Chikkabyanna had executed registered Will

    dated 25.09.1986 disposing all his properties in favour

    his children and his wives. Further it is deposed, all

    beneficiaries under Will have taken their respective

    shares including plaintiff. The D.W.2 in cross-

    examination has deposed, her husband has informed

    her how and who had executed Will as per Ex.D.1.

    21. It is also deposed by D.W.2 that, her husband

    informed her how Will come to his hand and how it was

    informed to family members. D.W.2 has further

    deposed, Will as per Ex.D.1 was with her husband. She

    did not know, when Will come to the hands of her
    19 O.S.No.25594/2007

    husband first time. It is also deposed, during his

    lifetime Chikkabyanna has executed only one Will which

    is as per Ex.D.1.

    22. It is further deposed by D.W.2 in her cross-

    examination that, since date of execution of Will, till its

    production before court, it was in the custody of her

    husband and thereafter it is with her. It is further say

    of D.W.2 that, in the 1987 Will come to the hands of her

    husband. She did not know as to whether her husband

    gave copies of Will to plaintiff and other defendants. The

    D.W.2 has admitted, Chikkabyanna has not

    discriminated between children through his first wife

    and his second wife.

    23. Based on evidence of evidence of D.W.1 and

    D.W.2 as referred above, it is argued by learned counsel

    for plaintiff that, how soever alleged said to have

    executed, but same is not proved in accordance with

    relevant provisions of law. Further it is argued,

    cancellation of earlier Will is also not proved as required

    under law as per provisions Section 63 of India

    Succession Act and Section 68 of Indian Evidence Act.
    20 O.S.No.25594/2007

    24. The learned counsel for plaintiff has further

    argued that, any Will to be valid in the eye of law has to

    suffice the conditions as enumerated under Section 63

    of the Indian Succession Act. The testator shall sign or

    shall affix his mark to the Will, or it shall be signed by

    some other person in his presence and by his direction.

    The signature or mark of the testator, or the signature

    of the person signing for him, shall be so placed that it

    shall appear that it was intended thereby to give effect

    to the writing as a Will. The Will shall be attested by two

    or more witnesses, each of whom has seen the testator

    sign or affix his mark to the Will or has seen some other

    person sign the Will, in the presence and by the

    direction of the testator, or has received from the

    testator a personal acknowledgment of his signature or

    mark, or the signature of such other person; and each

    of the witnesses shall sign the Will in the presence of

    the testator, but it shall not be necessary that more

    than one witness be present at the same time, and no

    particular form of attestation shall be necessary”.

    25. The learned counsel for plaintiff has further

    submitted that, in the instant case, alleged Will in
    21 O.S.No.25594/2007

    question dated 25.09.1986, which is produced and

    marked as Ex.D.1 by the defendants not even a single

    rule as stipulated under Section 63 of the Indian

    Succession Act, 1925 has been fulfilled, for it to be

    considered a valid Will in the eye of law. As it is a settled

    principle of law that, one of the attesting witnesses to

    the Will must depose to the veracity and the legality of

    the Will and in order to do the same, the defendants

    called upon one of the attesting witnesses namely

    Srinivas S. S/o. Subbann to give evidence for the same.

    It is further argued by learned counsel for the plaintiff

    that, said witness has deposed, “it was late Narayana

    Babu, who had called him and took him to St. Martha’s

    hospital situated in Gandhinagar and there he saw the

    executor of the Will i.e., late Chikkabayanna taking

    treatment in the hospital. Further he states that, it was

    Narayan Babu, who has asked Mr. Srinivas to sign on

    the Will and that, he signed it.

    26. The learned counsel for plaintiff has further

    argued that, Ex.P.8 is khata extract pertaining to suit

    properties for the year 2007. In said document, still

    name of Chikkabyanna is shown as owner of suit
    22 O.S.No.25594/2007

    properties. Exs.P.50 to P.53 are of the year 1992. In

    said documents, name of Chikkabyanna is shown. In

    Ex.P.50 there is signature of Chikkabyanna.

    27. Based on above documents, it is argued by

    learned counsel for plaintiff that, admittedly

    Chikkabyanna died on 21.07.1987 and these

    documents are of the year 1992. How come signature of

    Chikkabyanna, in these documents which are

    subsequent to his death. It is further argued on behalf

    learned counsel for plaintiff that, alleged Will as per

    Ex.D.1 is created and forged one.

    28. In order to show that, in the year 1986 during

    month of February and March, Chikkabyanna was

    admitted hospital, medical bills have been produced as

    per Exs.P.15 to P.19 and death certificate of

    Chikkabyanna has been produced as per Ex.P.20 and

    death report of Chikkabyanna has been produced as per

    Ex.P.21.

    29. In death certificate, it is mentioned cause of

    death of Chikkabyanna was due to Cardio-respiratory

    infections. The plaintiff has also produced telephone
    23 O.S.No.25594/2007

    bills, electricity bills and notice issued by Municipal

    under Section 147 of Karnataka Municipal Corporation

    Act as per Exs.P.37 to P.39. These are the documents

    subsequent to death of Chikkabyanna. These

    documents are issued in the name of Chikkabyanna.

    30. The learned counsel for plaintiff has further

    argued that, late Chikkabyanna has been an intelligent,

    vigilant and a cautious litigant all his life. He used to file

    cases, attend them on a regular basis and also used to

    sign the order sheets, vakalatnama’s and affidavits on a

    regular basis and has never, not even once in any f the

    documents has ever put his thumb impression instead

    of signing them. It is further submission of counsel for

    plaintiff, this case be seen in various Court documents,

    which are produced and marked as Exs.P.3 to P.7 and it

    can be clearly seen that, in an order sheet of an Appeal

    before Karnataka Appellate Tribunal at Bangalore,

    which is marked as Ex.P.6, that he has signed on the

    order sheet on 10.02.2026, which is six months prior to

    the Will in question. This raises a simple question that,

    why would a person with such cautiousness put his

    thumb impression, when all his life being a cautious
    24 O.S.No.25594/2007

    litigant, he always used to sign on the documents. It is

    very strange and a difficult fact to digest that, a person

    with such experience would put his thumb impression

    instead of signing the Will. This clearly shows that, the

    Will has been executed in contravention to Section 61(1)

    (a) and Section (1)(b) of the Indian Succession Act,

    1925. Therefore, there is no room for doubt that, the

    said Will in question has not fulfilled any of the rules

    stipulated under Section 63 of the Indian Succession

    Act, 1925 and thus is an invalid Will in the eye of law.

    Also the burden of proving the Will is on the person

    either relying or propounding on the Will and it is

    crystal clear from the evidence that, the defence has

    failed to prove the same.

    31. Based on contents of Ex.D.1 wherein

    Chikkabyanna put his thumb impression, it is argued

    that, Ex.D.1 is created by defendant No.8. The learned

    counsel for plaintiff has further argued that, any Will

    that is obtained by fraud, coercion or importunity,

    taking the free Will or free agency of the testator is a

    void Will. Section 61 of the Indian Succession Act,
    25 O.S.No.25594/2007

    prescribes certain illustrations showing in what

    situations, a Will must be considered void. Will obtained

    by fraud, coercion or importunity.- A Will or any part of

    a Will, the making of which has been caused by fraud or

    coercion, or by such importunity as takes away the free

    agency of the testator, is void.

    32. Further it is argued on behalf of learned

    counsel for plaintiff, defendant No.8 has failed to prove

    due execution of Ex.D.1 with supports of evidence of

    D.W.1, who is one of the attesting witness to alleged

    Will. It is further argued that, as admitted by D.W.1 and

    as per documents at relevant point of time,

    Chikkabyanna was not keeping good health. It is not

    established by defendant No.8 at the time execution of

    alleged Will as per Ex.D.1, Chikkabyanna was having fit

    state of mind. Thumb impression on document by

    Chikkabyanna who always used to sign all documents

    itself create doubt with regard to due execution of

    Ex.D.1 by Chikkabyanna. The subsequent document

    which are executed after death of Chikkabyanna

    wherein there is signature of Chikkabyanna and name
    26 O.S.No.25594/2007

    of Chikkabyanna itself shown alleged Will as per Ex.D.1

    is not acted upon.

    33. On the other hand, learned counsel for

    defendant No.8 has argued that, Will as per Ex.D.1

    dated 25.09.1986 is acted upon. Subsequent to

    execution of Will as per Ex.D.1, plaintiff and other

    family members who are beneficiaries under Will have

    executed sale deed dated 30.10.1992 in respect of suit

    property No.19, out of Sy.No.213, Re-Sy.No.484/1,

    situated at K.P. Agrahara, Bengaluru in favour of S.T.

    Jayaram. The plaintiff is also party to the said sale

    deed. In sale deed as per Ex.D.2 it is clearly mentioned

    about Will dated 25.09.1986 executed by

    Chikkabyanna. Further it is argued that, under Will as

    per Ex.D.1, property measuring 40X30 feet, bequeathed

    to plaintiff. The plaintiff has sold said property long

    back. Thereby plaintiff accepted share gives to her

    father under Will dated 25.09.1986.

    34. Contesting defendants have contended,

    plaintiff after sale of site allotted her under Will dated

    25.09.1986 has purchased site in Papireddy palya. It is
    27 O.S.No.25594/2007

    pertaining to note here that, gift deed dated 27.03.2003

    executed by defendant No.1 in favour of defendant No.3

    has been produced as per Ex.D.3. General Power of

    Attorney dated 22.12.2003 executed by defendant No.3

    in favour of M/s. Kriparaj Developers has been

    produced as per Ex.D.4. Certified copy of sale deed

    dated 25.07.2005 executed by defendant No.3 in favour

    of Smt. Sulochana G. Yavagal has been produced as per

    Ex.D.5. Sale deed dated 08.09.2005 executed by

    defendant No.3 in favour M/s. Kriparaj Developers has

    been as per Ex.D.6.

    35. In view of above mentioned facts, whether

    plaintiff had knowledge about Will as per Ex.D.1 or not

    to be looked into. It is fact that, court by its order dated

    29.10.2010 has allowed, application filed by plaintiff

    seeking amendment to the pleadings. Said order was

    challenged by defendant No.8 by filing Writ Petition

    No.33391/2010 before Hon’ble High Court of

    Karnataka. The Hon’ble High Court set aside order

    passed by this court dated 23.10.2010.
    28 O.S.No.25594/2007

    36. On careful perusal of examination-in-chief of

    P.W.1, she tried to incorporate some pleadings in

    respect of which amendment application was dismissed.

    Further it is to be noted here, this court is order dated

    28.03.2019 has ordered paragraph No.7, 8, 12 and 18

    of examination-in-chief of P.W.1 are expunged.

    37. It is material to note here that, in para – 11 of

    her chief, P.W.1 has stated, it was only after she

    demanded her share for partition, she come to know

    that, defendants started allegedly claiming, their father

    had executed a second Will. Further it is deposed by

    P.W.1, it was only then it become clear to her that,

    defendant No.8 in connivance of other defendants was

    trying to set up a Will dated 09.07.1986 allegedly

    stating that, same was executed by Sri Chikkabyanna.

    38. It is pertinent to note here that, when P.W.1

    has pleaded in her evidence, she come to know

    defendants started claiming Chikkabyanna executed

    second Will, it can be inferred plaintiff was aware about

    earlier Will of the year 1972. It is clearly deposed by

    P.W.1 in her cross-examination that, she is very much
    29 O.S.No.25594/2007

    aware about Will of the year 1972. On careful perusal of

    plaint averments, nowhere in plaint, plaintiff has

    pleaded about earlier Will. It is simply pleaded by

    plaintiff that, Chikkabyanna acquired suit properties

    and he died intestate.

    39. The plaintiff in para – 9 of her examination

    has stated, defendant No.8 was instrumental in another

    transaction dated 30.10.1992 in favour of Sri S.T.

    Jayaram. In para -10 of her examination-in-chief has

    deposed by P.W.1 that, at that time she was being

    nursed for post delivery care by her mother and

    defendant No.8 requested to her to sign sale deed and

    informed she cannot come to Sub-Registrar Office with

    small child. It further say of P.W.1 that, after two days

    of execution of sale deed, defendant No.8 paid sum of

    Rs.15,000/- saying that, it was share of plaintiff in said

    transaction.

    40. It worth to note here that, what all stated by

    P.W.1 in her examination-in-chief as referred above,

    said evidence is without pleadings. It is well settled

    proposition of law that, evidence cannot be led on facts
    30 O.S.No.25594/2007

    that has not been pleaded. In absence of specific

    pleadings, evidence adduced by party cannot be

    considered. No evidence could be led beyond pleadings.

    The P.W.1 in her cross-examination has pleaded

    ignorance about sale of property No.19 as per Ex.D.2.

    Ex.P.1 is Will dated 25.02.1972. Ex.P.2 is cancellation

    of Will dated 23.09.1986. Ex.D.1 is Will dated

    25.09.1986.

    41. Admittedly, sale deed as per Ex.D.2 dated

    30.10.1992 is subsequent to Ex.D.1. Name of plaintiff

    shown in Ex.D.2. As already discussed, plaintiff has

    deposed in her examination-in-chief without pleading in

    plaint about said sale deed. The P.W.1 has clearly

    stated in her evidence that, at that time she was with

    her mother at given spot as she was being nursed for

    post delivery care.

    42. Herein the case, defendant No.1 being mother

    of plaintiff has supported case of plaintiff. If that is so,

    mother of plaintiff was also aware about sale deed as

    per Ex.D.2 executed by plaintiff. Even if it is accepted

    for time being, plaintiff has signed sale deed and she
    31 O.S.No.25594/2007

    was not in position to read and understand contents of

    sale deed but fact remains that, execution of sale as per

    Ex.D.2 was well within knowledge of plaintiff and her

    mother, who is defendant No.1.

    43. Gift deed dated 27.11.2003 executed by

    defendant No.1 in favour of defendant No.3 in respect of

    property bearing Corporation No.26, situated at

    Hosahalli, Bengaluru has been produced as per Ex.D.3.

    The plaintiff in her cross-examination has pleaded

    ignorance with regard to gift deed as per Ex.D.3

    executed by her mother defendant No.1 in favour of

    defendant No.3. The plaintiff has also pleaded ignorance

    that, in Ex.D.3 it is mentioned about Will dated

    25.09.1986. On careful perusal of gift deed, it is clearly

    mentioned about Will dated 25.09.1986 executed by

    Chikkabyanna during his lifetime.

    44. General Power of Attorney dated 22.12.2003

    and absolute sale deed dated 08.09.205 executed by

    defendant No.3 in favour of M/s. kriparaj Developers

    have been produced as per Exs.D.4 and D.6

    respectively. In these documents also, it is clearly
    32 O.S.No.25594/2007

    mentioned, Chikkabyanna during his lifetime has

    executed Will dated 25.09.1986.

    45. It is fact that, mother of plaintiff and son of

    brother of plaintiff in their documents as per Exs.D.3, 4

    and D.6 have clearly admitted about Will dated

    25.09.1986 executed by late Chikkabyanna. It is the

    one of the main grounds, on which defendant No.8 is

    seeking dismissal of suit is that, plaintiff signed sale

    deed dated 30.10.1992. It is extracted from cross of

    D.W.2 that, in case anybody undergone tubectomy

    operation she has to take at least 4 to 5 months rest.

    The D.W.2 has further deposed, in the supervision of

    her husband transaction as per Ex.D.2 – sale deed took

    place.

    46. It is worth to note here that, even it is

    accepted at the time of execution of Ex.D.2 – sale deed,

    plaintiff was being nursed for post delivery care, fact

    remains that, she received her share of sale

    consideration amount and she was aware about

    execution of sale deed by herself and other family

    members in favour S.T. Jayaram. The contention of
    33 O.S.No.25594/2007

    plaintiff that, she was not aware about contents of

    Ex.D.2 – sale deed wherein it is mentioned about Will

    dated 25.09.1986 from date of execution of deed till

    filing of suit itself very unreasonable. No prudent man

    after execution deed keep quite for all these years till

    filing of suit without knowing contents of deed.

    47. Fact to be noted here, plaintiff has claimed

    ignorance about Ex.D.3 to D.6. Admittedly these

    documents or properties mentioned in these documents

    not challenged in present suit. The P.W.1 has pleaded

    ignorance as to whether beneficiaries under Will as per

    Ex.D.1 who received properties under Will have sold

    properties and developed the same.

    48. It is fact that, defendant No.3 entered into

    General Power of Attorney and sale deed in favour of M/

    s. Kriparaj Developers as per Exs.D.4 and D.6. The

    plaintiff has pleaded ignorance as to whether there exist

    apartment in property gifted by defendant No.1 to

    defendant No.3. Plaintiff further deposed, there might

    be five kilometers distance between her house and said

    apartment. In further cross-examination, it is deposed

    by P.W.1 that, property in which apartment is existed is
    34 O.S.No.25594/2007

    not included in present suit. It is very much clear that,

    property gifted by defendant No.1 in favour of defendant

    No.3 acquired by defendant No.1 under Ex.D.1- Will

    only.

    49. In view of above mentioned facts, there is

    sufficient material by way of documentary evidence, Will

    as per Ex.D.1 dated 25.09.1986 is acted upon. The

    learned counsel for plaintiff has argued that, in order to

    establish election or waiver, it will have to be

    established that, the party expressly or by its conduct

    has acted in a manner.

    50. The learned counsel for plaintiff in support of

    his arguments has relied upon the decision of Hon’ble

    Supreme Court reported in (2021) 10 SCC 401, in

    case of Kalpraj Dharamshi and another Vs. Kotak

    Investment Advisors Limited and another, wherein it

    is held that, the party who benefits by the wavier, but

    mere acts of indulgence will not amount to waiver; nor

    may a party benefit from the waiver unless he has

    altered his position in reliance on it. For considering, as

    to whether a party has waived its rights or not, it will be
    35 O.S.No.25594/2007

    relevant to consider the conduct of a party. For

    establishing waiver, it will have to be established, that a

    party expressly or by its conduct acted in a manner,

    which is inconsistent with the continuance of its rights.

    However, the mere acts of indulgence will not amount to

    waiver. A party claiming waiver. A party claiming waiver

    would also not be entitled to claim the benefit of waiver,

    unless it has altered its position in reliance on the

    same. The person to be bound is fully cognizant of his

    rights, and that being so, he neglects to enforce them,

    or chooses one benefit instead of another, either, but

    not both, of which he might claim. The person to be

    bound is fully cognizant of his rights, and that being so,

    he neglects to enforce them, or chooses one benefit

    instead of another.

    51. The learned counsel for plaintiff has further

    relied upon decision of Hon’ble Supreme Court reported

    in (2004) 8 SCC 229, in case f Krishna Bahadur Vs.

    Purna Theatre and Others, wherein it is held that,

    principle of wavier although is akin to the principle of

    estoppel; the difference between the two, however, is

    that whereas estoppel is not a cause of action; it is a
    36 O.S.No.25594/2007

    rule of evidence; waiver is contractual and may

    constitute a cause of action; it is an agreement between

    the parties and a party fully knowing of its rights has

    agreed not to assert a right for a consideration. A right

    can be waived by the party for whose benefit certain

    requirements or conditions had been provided for by a

    statute subject to the condition that no public interest

    is involved therein. Whenever waiver is pleaded it is for

    the party pleading the same to show that an agreement

    waiving the right in consideration of some compromise

    came into being. Statutory right, however, may also be

    waived by his conduct.

    52. The learned counsel for plaintiff has further

    relied upon decision of Hon’ble High Court of South

    Africa, in case No.1949/2005, Coppermoon Trading

    13(PTY) LTD., Vs. The Government of The Province of

    the Eastern Cape and another, wherein it is held

    that, further, being a matter of intention, election or

    waiver can only occur when the party concerned had

    full knowledge of the legal right which he is said to have

    waived, and of the facts under which, or from which, the
    37 O.S.No.25594/2007

    right arose. In the ordinary case of waiver, the facta

    probanda would be full knowledge of the rights in

    question and express waiver or waiver by plainly

    inconsistent conduct, i.e., knowledge of a particular

    kind and surrender of the right in a particular manner.

    The conduct from which waiver is to be inferred, must

    be unequivocal, “that is to say, consistent with no other

    hypothese”.

    53. On the other hand, learned counsel for

    defendants No.8(a) to 8(c) has relied upon decision of

    Hon’ble Supreme Court reported in AIR 2003 SCC 578

    in case of B.L. Sreedhar and others Vs. K.M.

    Munireddy (dead) and others, wherein it is held that,

    the plaintiff is estoppel from questioning sale

    transaction under sale deed for following reasons

    though the plaintiff was not a party to several

    proceedings referred to by the parties, conduct of the

    plaintiff clearly shows in the background of evidence

    tendered that he was conscious of the proceedings.

    Estoppel is a rule of evidence and the general rule is

    enacted in Section 115 of the Indian Evidence Act, 1872

    (in short ‘Evidence Act‘) which lays down that when one
    38 O.S.No.25594/2007

    person has by his declaration, act or omission caused or

    permitted another person to believe a thing to be true

    and to act upon that belief, neither he nor his

    representative shall be allowed in any suit or proceeding

    between himself and such person or his representative

    to deny the truth of that thing. Estoppel is a complex

    legal notion, involving a combination of several essential

    elements statement to be acted upon, action on the faith

    of it, resulting detriment to the actor. Estoppel is often

    described as a rule of evidence, as indeed it may be so

    described. But the whole concept is more correctly

    viewed as a substantive rule of law. Estoppel is different

    from contract both in its nature and consequences. But

    the relationship between the parties must also be such

    that the imputed truth of the statement is a necessary

    step in the constitution of the cause of action.

    54. It is pertinent to note here that, the plaintiff

    having aware about earlier Will dated 25.02.1972 and in

    order to avoid to plead about subsequent Will as per

    Ex.D.1 has intentionally not pleaded same in plaint.

    Further, on careful perusal of examination-in-chief, it
    39 O.S.No.25594/2007

    indicates that, plaintiff having aware about execution of

    sale deed as per Ex.D.2 and having received amount

    under said sale deed, intentionally not mentioned said

    document in plaint pleadings. It is not case of plaintiff

    that, without informing nature of document her

    signature was fraudulently obtained by defendant No.8

    and no amount as sale consideration given to her.

    55. The plaintiff having aware about her right in

    respect of suit property has executed sale deed as per

    Ex.D.2 which is subsequent to Will as per Ex.D.1.

    Under these circumstances, execution of sale deed by

    plaintiff can be construed as election or acquiescence

    that, she having full knowledge of her right chooses to

    benefit under Will.

    56. Admittedly, Chikkabyanna died on

    21.03.1987. In case Will as per Ex.D.1 not acted upon,

    plaintiff may not kept quite for all these years without

    seeking partition in suit properties. As already

    discussed, taking into note of the way in which other

    beneficiaries under Will have dealt with property given
    40 O.S.No.25594/2007

    to them under Will, it can be safely held Will as per

    Ex.D.1 is definitely acted upon.

    57. It is to be noted here, site No.2 measuring

    30X40 feet bequeathed in favour of plaintiff under Will

    as per Ex.D.1. It is also fact that, under said Will

    properties were given to mother and other sisters of

    plaintiff. They are the proper persons to say under what

    circumstances plaintiff has joined as party to sale deed

    as per Ex.D.2 and at least it is mother of plaintiff, who

    is defendant No.1 proper person to say about plaintiff

    due to delivery of child not able to come to Sub-

    Registrar Office.

    58. If contention of plaintiff were to be true, Will is

    created one and same is not acted upon, the property

    which is gifted by defendant No.1 to defendant No.3

    under Ex.D.3 – gift deed and apartment constructed by

    defendant No.3 in said property would also be joint

    family property and same would have been included in

    suit and definitely plaintiff in all probabilities would

    have pleaded all these facts in plaint.
    41 O.S.No.25594/2007

    59. Nothing has been pleaded or deposed by

    plaintiff about site No.2, measuring 30X40 feet given to

    her under Will. In case, plaintiff has not taken such

    property or it was not bequeathed to her under Will and

    she has not sold same as contended by defendant No.8,

    plaintiff would have produced material before the court

    to show that, said property is still exists as joint family

    property of plaintiff and defendants.

    60. It is true, as rightly contended by learned

    counsel for plaintiff there are documents to show, name

    of Chikkabyannna is continued to suit property even

    after his death, that itself not sufficient to say Will as

    per Ex.D.1 is not acted upon. On the other hand,

    plaintiff and other family members being beneficiaries

    under Will have taken properties under Will and they

    have dealt with properties bequeathed to them in their

    individual capacity through registered deeds. When,

    parties who acquired properties under registered Will

    and dealt with same by virtue of registered deeds, those

    registered deeds cannot be over looked just because in

    some revenue documents of properties name of
    42 O.S.No.25594/2007

    Chikkabyanna continued even after his death and

    thereby it is highly improbable to come to conclusion

    Will as per Ex.D.1 is not acted upon.

    61. It is evident from evidence on record that,

    plaintiff having aware about earlier Will as well as

    Ex.D.1 and having elected to receive property given to

    her under Will intentionally not pleaded in the plaint

    about those Will. Further, plaintiff intentionally not

    included property given to her and her mother

    defendant No.1 in present suit. When plaintiff has

    already received property bequeath to her under Will

    and dealt with same in her individual capacity and

    other family members also being beneficiaries under

    Will have dealt with property bequeath to them, now

    plaintiff estopped from contending that, Will as per

    Ex.D.1 is not proved and health condition of

    Chikkabyannna was not stable at relevant point of time

    and he was not in fit state of mind and health to

    execute Will.

    62. It is to be noted here, plaintiff has specifically

    stated that, defendant No.8 requested her that, he had
    43 O.S.No.25594/2007

    convinced other sisters to sell part of site No.19 in

    favour of Sri S.T. Jayaram so as to arrange money for

    urgent family necessities i.e for property maintenance

    and to have reconveyance effected by BDA. If contention

    of plaintiff were to be true, property under Ex.D.2 sold

    for legal and family necessities all family members

    including mother of plaintiff who is defendant No.1

    would have signed sale deed. Because, plaintiff herself

    has contended, at that point of time she was staying

    with her mother as she was being nursed for post

    delivery care. On careful perusal of said document, it is

    the only persons who have acquired property under Will

    signed sale deed for having sold property to S.T.

    Jayaram.

    63. In view of above made discussion, plaintiff

    failed to establish cancellation of Will dated 25.09.1986

    is obtained by fraud and same is created by defendant

    No.8. As already discussed, suit properties and other

    properties bequeathed by late Chikkabyannna under

    Ex.D.1 -Will and same is acted upon, suit properties are

    not remained as joint family properties of plaintiff and
    44 O.S.No.25594/2007

    defendants. Under these circumstances, plaintiff cannot

    claim she herself and defendants are in joint possession

    and enjoyment of suit properties. As such principles

    laid down in decisions relied by learned counsel for

    plaintiff are not aptly applicable to facts and

    circumstances of case on hand.

    64. It is further argument on behalf of learned

    counsel for plaintiff that, plaintiff being daughter of late

    Chikkabyannna inherited properties under Section 6 of

    Hindu Succession Act. Chikkabyannna has no right to

    bequeath suit properties by executing Will as per

    Ex.D.1. On the other hand, the learned counsel for

    defendant No.8 has argued that, once Chikkabyannna

    received properties under registered partition deed

    dated 13.07.1960, the properties ceased to be joint

    family properties and become self acquired properties of

    Chikkabyannna.

    65. The learned counsel for defendant No.8 in

    support of his arguments has relied upon the decision

    of Hon’ble Supreme Court in (2008) 3 SCC 87, in case

    of Bhanwar Singh Vs. Puran and Others, wherein it
    45 O.S.No.25594/2007

    is held that, Indisputably, Bhima left behind Sant Ram

    and three daughters. In terms of Section 8 of the Act,

    therefore, the properties of Bhima devolved upon Sant

    Ram and his three sisters. Each had 1/4th share in the

    property. Apart from the legal position, factually the

    same was also reflected in the record of rights. A

    partition had taken place amongst the heirs of Bhima.

    Although the learned First Appellate Court proceeded to

    consider the effect of Section 6 of the Act, in our

    opinion, the same was not applicable in the facts and

    circumstances of the case. In any event, it had rightly

    been held that even in such a case, having regard to

    Section 8 as also Section 19 of the Act, the properties

    ceased to be joint family property and all the heirs and

    legal representatives of Bhima would succeed to his

    interest as tenants in common and not as joint tenants.

    In a case of this nature, the joint coparcenary did not

    continue. It is true that the first Court of Appeal also

    entered into the question of legal necessity for Sant Ram

    to alienate the property in favour of the contesting

    respondents but the said issue was considered in the

    alternative to the principal issue. If the First Appellate
    46 O.S.No.25594/2007

    Court was correct in its opinion and we do not see any

    reason to differ therewith that Section 6 of the Hindu

    Succession Act was not attracted to the facts of this

    case in view of the fact that Sant Ram and his sisters

    having partitioned their properties became owners to

    the extent of 1/4th share each, he had the requisite

    right to transfer the lands falling within his share.

    Furthermore, in terms of Section 19 of the Act, as Sant

    Ram and his sisters became tenants in common and

    took the properties devolved upon them per capita and

    not per stripes, each one of them was entitled to

    alienate their share, particularly when different

    properties were allotted in their favour.

    66. The learned counsel for defendant No.8 has

    further relied upon decision of Hon’ble High Court of

    Karnataka in C.R.P.No.121/2021 in case of Koshy

    Abraham Vs. Smt. B.K. Jayalakshmi and others,

    wherein it is held that, the Apex court in Banwar

    Singh‘s case (supra) has held that once a partition has

    occurred and property has fallen to the share of one of

    the members of the family, such member of the family

    had the requisite right to transfer the land fallen to his
    47 O.S.No.25594/2007

    share. In the present case, property on partition in the

    year 1994 fell the share of defendant No.1 and it is

    defendant No.1 who has sold the property. There is no

    embargo on defendant No.1 to sell the property falling to

    his share which has been recognized by the Apex court

    in Banwar Singh‘s case (supra). Hence, on this ground

    also the claim of the plaintiff that she is entitled to a

    partition is not sustainable since it is the property

    belonging to defendant No.1 which has been sold.

    67. It is fact that, as per contents of Ex.D.1

    Chikkabyannna acquired properties under registered

    partition deed dated 13.07.1960. There is no document

    placed on record to show that, Chikkabyannna

    inherited properties from paternal ancestors upto four

    generations. In view of principles laid down in above

    decisions relied by counsel for defendant No.8,

    contention of plaintiff that, as per provision of Section 6

    of Hindu Succession Act, plaintiiff inherited suit

    properties and Chikkabyannna has no right to bequeath

    suit properties under Will is not sustainable. Hence, I

    answer Issues No.1, 2, Additional Issue No.3 to 6
    48 O.S.No.25594/2007

    dated 04.07.2023 in the negative, issue No.8,

    additional Issue No.10 dated 04.07.2023 and

    additional Issue No.1 dated 28.03.2019 in the

    affirmative.

    68. ADDITIONAL ISSUE NO.7 DATED

    04.07.2023 :- The plaintiff has deposed in her

    examination-in-chief that, defendant No.8 being manger

    of joint family mismanaged and sold house property

    situated at Plot No.9 (Plot No.19/2) situated at 3 rd Main

    Hosahalli, Vijayanagar, Bengaluru which is schedule ‘B’

    property in favour of Sri Brahma Deo Prasad under

    registered sale deed dated 05.07.1989. Sale effected in

    favour of Sri Brahma Deo Prasad was not for legal and

    family necessities.

    69. It is pertinent to note here that, court on

    28.01.2011 has framed issue No.5 to the effect “whether

    plaintiff proves that sale deed dated 05.07.1989 created

    by defendant No.8 in favour of Brahma Deo Prasad is

    Ayavaharika and not binding on her”.

    70. It is pertinent note here that, court by its order

    dated 28.03.2019 has proceed to struck off said issue.
    49 O.S.No.25594/2007

    Thereafter, once again by mistake additional issue No.7

    framed which is similar to issue No.5 which is already

    struck off. Hence question of giving findings on

    additional issue No.7 does not arise. Hence, I answer

    additional issue No.7 dated 04.07.2023 does not

    arise.

    71. ISSUE NO.7 ADDITIONAL ISSUES NO.2 AND

    9 DATED 04.07.2023 :- As these issues are inter-

    related to each other and involves common appreciation

    of facts and evidence on record, findings on one issue

    are bearing on other issue, in order to avoid repetition of

    facts and for convenience sake, both issues are taken

    together for common discussion.

    72. The contesting defendants have contended,

    suit of the plaintiff is barred by law of limitation. As

    father of plaintiff late Chikkabyanna executed registered

    Will as per Ex.D.1 dated 25.09.1986 and all the

    beneficiaries under Will have taken their respective

    shares including plaintiff.

    73. As already discussed, no doubt it is true,

    plaintiff has not pleaded in plaint about Will as per
    50 O.S.No.25594/2007

    Ex.D.1 but there is sufficient documentary evidence on

    record by way of Ex.D.2 to D.6 to say Will executed by

    Chikkabyanna as per Ex.D.1 is acted upon and

    beneficiaries under Will have taken their respective

    shares in property bequeathed to them and they dealt

    with property in their individual capacity. It can be

    gathered from evidence on record, plaintiff having had

    knowledge about Will has not pleaded same in the

    plaint. The plaintiff has knowledge about property

    acquired under Will, she was party to Ex.D.2 and

    received her share of sale consideration.

    74. It is fact that, Will as per Ex.D.1 was executed

    by Chikkabyanna on 25.09.1986 and same is acted

    upon. After lapse of nearly 20 years from date of

    execution of said Will and having knowledge about said

    Will on date when it come into force, plaintiff come up

    with present suit claiming share in suit properties, as

    such very suit is hopelessly barred by law of limitation.

    Hence, I answer Issue No.7, Additional issues No.2

    and 9 dated 04.07.2023 in the affirmative.
    51 O.S.No.25594/2007

    75. ISSUE NO.6 AND ADDITIONAL ISSUE NO.8

    DATED 04.07.2023 :- As these issues are inter-related

    to each other and involves common appreciation of facts

    and evidence on record, findings on one issue are

    bearing on other issue, in order to avoid repetition of

    facts and for convenience sake, both issues are taken

    together for common discussion.

    76. The contesting defendants have contended

    that, plaintiff has not properly valued subject matter of

    suit and also not paid proper court fees. The plaintiff

    has pleaded, she being daughter of late Chikkabyanna,

    she is in joint possession and enjoyment of suit

    schedule properties along with defendants. The plaintiff

    having claimed her joint possession over suit properties

    and for having filed suit for partition paid court fees of

    Rs.200/- under Section 35(2) of Karnataka Court Fees

    and Suits Valuation Act. As to whether, plaintiff is

    entitled for relief as prayed in plaint or not is different

    aspects. When plaintiff has specifically pleaded, she is

    in joint possession and enjoyment of suit properties and

    paid court fees under Section 35(2) of Karnataka Court
    52 O.S.No.25594/2007

    Fees and Suit Valuation and same has to be accepted as

    just and proper. Hence, I answer issue No.6 and

    Additional Issue No.8 in the affirmative.

    77. ADDITIONAL ISSUE NO.1 DATED

    04.07.2023 :- It is not in dispute that, plaintiff and

    defendants being legal heirs of late Chikkabyanna are

    parties to the suit. Moreover, beneficiaries under Will

    executed by Chikkabyanna are parties to the suit. May

    be it is true, plaintiff has not included all properties

    mentioned in Will and all properties which are already

    dealt by family members as beneficiaries under Will. It

    is contention of plaintiff that, suit schedule properties

    are remained as joint family properties of plaintiff and

    defendants, as such plaintiff claiming share in suit

    properties.

    78. As already discussed, plaintiff has not

    included property given to her and property given to

    defendant No.1 under Will executed by Chikkabyanna.

    As rightly contended by learned counsel for defendant

    No.8, suit for partial partition definitely not

    maintainable. In this regard, the learned counsel for

    defendant No.8 has relied upon decision of Hon’ble High
    53 O.S.No.25594/2007

    Court of Karnataka, in R.S.A.No.1971/2018 in case of

    D. Lingegowda Vs. Smt. Gowramma and others,

    wherein it is held that, the Apex court held that,

    partition under Hindu Law, when the suit is filed for the

    relief of partial partition, when all the joint family

    properties not made as the subject matter of the suit

    nor the co-sharers impleaded, not maintainable. The

    suit is filed by plaintiff without including all the joint

    family properties and which prejudices the rights of the

    alienees who have also been impleaded as parties to the

    suit, in the circumstances of the case, has to be held

    that the suit filed by the plaintiff for partial partition

    without including all the joint family properties is bad in

    law.

    79. As plaintiff has not included other properties

    in present suit question of impleading the persons who

    are purchasers of those properties does not arise. As

    such, contention of defendants that, suit is bad for non-

    joinder of necessary parties and mis-joinder of parties is

    not sustainable. Hence, I answer additional issue No.1

    dated 04.07.2023 in the negative.

    54 O.S.No.25594/2007

    80. ISSUES NO.3 TO 5 :- It is worth to note here

    that, as per order dated 28.03.2019 these issues No.3 to

    5 were struck off. As such question of findings on these

    issues does not arises. Hence, I answer these issues

    No.3 to 5 were struck off by order dated

    28.03.2019.

    81. ISSUES No.9 ADDITIONAL ISSUE NO.11

    DATED 04.07.2023 :- In view of the above said

    findings on Issue Nos. 1 to 8, additional issues, I

    proceed to pass the following:-

    ORDER

    The suit of the plaintiff is hereby

    dismissed with costs.

    Draw decree accordingly.

    (Dictated to the Stenographer directly on computer, typed &
    computerized by her, corrected and signed by me and then pronounced
    in the open Court on this the 2nd day of April, 2026).

    (BALAPPA APPANNA JARAGU)
    XXVIII Additional City Civil and
    Sessions Judge, Mayohall, Bengaluru.
    55 O.S.No.25594/2007

    ANNEXURE

    1. LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:-

    Examined on:

    P.W.1 : Smt. Vijaya 09-07-2018.

    2. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:-

    Ex.P.1 : Certified copy Will.

    Ex.P.2 : Certified copy of cancellation of Will.
    Ex.P.3 : Certified copy of order passed by
    Deputy Commissioner dated 08.05.1984.
    Ex.P.4 : Copy of Vakalathnama.

    Ex.P.5 : Copy of interim application under Section
    5
    of Limitation Act.

    Ex.P.6 : Certified copy of order sheet in Appeal
    No.21/1984.

    Ex.P.7 : Certified copy of order passed in
    Appeal No.21/1984 and 22/1984.

    Ex.P.8 : Khata Extract.

    Exs.P.9 : Endorsement.

    and P.10
    Ex.P.11 : Certified copy of partition deed
    dated 14.12.1970.

    Ex.P.11(a): Typed copy of Ex.P.11.

    Ex.P.12 : Certified copy of sale deed
    dated 23.06.1989.

    Ex.P.13 : Khata extract.

    Ex.P.14 : Letter dated 28.03.1984.

    Exs.P.15 : Doctor prescription and medical receipt.
    to P.19
    Exs.P.20 : Death certificate and report issued by
    and P.21 hospital.

    56 O.S.No.25594/2007

    Ex.P.22 : Death certificate of Chikka Byanna.

    Ex.P.23 : Letter dated 13.03.1973.

    Ex.P.24 : Receipt.

    Ex.P.25 : Legal notice dated 14.02.2007.

    Exs.P.26 : Postal receipts.

    and P.27

    Ex.P.28 : Certified copy postal letter.

    Exs.P.29 : Postal covers.

    to P.36

    Exs.P.29(a): Legal Notices.

    to P.36(a)

    Ex.P.37 : Telephone bill.

    Ex.P.38 : Electricity bill and receipt.

    Ex.P.39 :BBMP notice dated 22.08.1994.

    Ex.P.40 : Certified copy of Will dated 25.9.1986.

    Ex.P.41 : Certified copy agreement of
    dated 23.04.1974.

    Ex.P.42 : Transfer letter dated 4.7.2005.

    Ex.P.43 : Certified copy of sale deed
    dated 15.03.2007.

    Ex.P.44 : Certified copy of sale deed
    dated 17.08.1960.

    Ex.P.44(a): Typed copy of P.44.

    Ex.P.45 : Certified copy of sale deed
    dated 25.06.1962.

    Ex.P.45(a): Typed copy of P.44.

    Ex.P.46 : Mahazar.

    Ex.P.47 : Bond of indemnity loss.

    57 O.S.No.25594/2007

    Ex.P.48 : Affidavit.

    Ex.P.49 : Letter dated 15.04.1980.

    Exs.P.50 : Electricity Board letters.
    to P.53

    3.LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:-

    Examined on:

      D.W.1   : Srinivas                      05-04-2024.
      D.W.2   : Krupa Rani Babu               09-07-2024.
    
    

    4.LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:-

    Ex.D.1 : Certified copy of Will.
    Ex.D.1(a): Signature.

    Ex.D.2 : Certified copy of sale deed
    dated 30.10.1992.

    Ex.D.2(a): Typed copy of Ex.D.2.
    Ex.D.3 : Certified copy of Gift deed
    dated 27.11.2003.

    Ex.D.4 : Certified copy of General Power of Attorney
    dated 22.12.2003.

    Ex.D.5 : Certified copy of sale deed
    dated 25.07.2005.

    Ex.D.6 : Certified copy of sale deed
    dated 08.09.2005.

    Ex.D.7 : Certified copy of judgment
    in O.S.No.27300/2009.

    Ex.D.8 : Certified copy of decree in
    O.S.No.27300/2009.

    (BALAPPA APPANNA JARAGU)
    XXVIII Additional City Civil and
    Sessions Judge, Mayohall, Bengaluru.

    58 O.S.No.25594/2007



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