® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY R.F.A. No.420 OF 2014 BETWEEN:
1. Sri. Surya Prakash S/o. Late Revanna, 60 years, R/o. No.3408, 13th Cross, K.R.Road, Shastri Nagar, BSK II Stage, Bangalore-560 070.
2. Mr. Thejas @ Naveen Kumar S/o. Surya Prakash, Aged 34 years, 1st Cross, P.N.T. 2nd Stage, Sangameshwara Extension, Hassan-573 201.
(By Sri. H.Manjunath, for Sri. Saket Bisani, Advocate) AND:
1. Mrs. Renuka Devi D/o. Late Revanna, 57 years, R/o. No.227, 4th Cross, T.R.Nagar, Byrappa Block, Bangalore-560 028.
…Appellants 2. Smt. Dakashayini W/o. H.D.Ramesh Now 54 years, R/o. No.13, Park Road, K.S.Layout, Bangalore-560 078.
…Respondents (By Sri. Eugene Prabhu B., Advocate for R-1;
notice to R-2 is held sufficient vide order dated:08-01-2018) **** This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated:06-12-2013 passed in O.S.No.26928/2009 on the file of XXVIII Additional City Civil Judge at Mayo Hall Unit, Bangalore, decreeing the suit for partition and separate possession.
This Regular First Appeal coming on for Final Hearing this day, the Court delivered the following:
J U D G M E N T The defendant Nos.1 and 3 in O.S.No.26928/2009 in the Court of the learned XXVIII Additional City Civil Judge at Mayo Hall Unit, Bangalore (CCCH.29) (hereinafter for brevity referred to as the “Trial Court”) have filed the present appeal challenging the judgment and decree passed in the said suit and dated 06-12-2013.
2. The present respondent No.1 had instituted a suit against the present appellant No.1, respondent No.2 and appellant No.2 arraigning them as defendants No.1, 2 and 3 respectively in the said O.S.No.26928/2009 for the relief of partition and separate possession of plaintiff’s 1/3rd share in the suit schedule property and also to hold that the transactions taken place on the basis of the Will dated 27-05-1985 including the said Will were not binding on the plaintiff.
3. It was the summary of the case of the plaintiff in the Trial Court that, the suit schedule property which is a house property bearing No.3408 measuring 20’X30’ situated at Banashankari II Stage, Bengaluru, was the self-acquired property of her father - Sri. Revanna, who is also the father of defendants No.1 and 2 and grandfather of defendant No.3. The suit schedule property was allotted to their father – Sri. Revanna, by the then City Improvement Trust Board (CITB) under a lease-cum-sale agreement dated 03-01-1977.
Thereafter, Revanna died leaving behind the plaintiff and defendants 1 and 2 as his legal heirs, who jointly succeeded to the suit schedule property. The defendants No.1 and 3 making a false representation before the Bangalore Development Authority (BDA) which was the successor to the CITB, Bengaluru, that, they are the only legal heirs of Revanna and based upon the alleged Will said to have been executed by Revanna, bequeathing the suit property in favour of the defendant No.3 and dated 27-05-1985, could able to succeed in getting the Sale Deed executed in favour of the defendant No.3 by the BDA on 11-08-2009.
The plaintiff further contended that the defendant No.3 was trying to alienate the suit schedule property and despite requests made by the plaintiff to give her share in the suit schedule property, defendants 1 and 3 refused to give her the share. Stating that her father – Sri. Revanna had never executed any Will, much less the Will dated 27-05-1985, the plaintiff had sought for a decree to declare that, she was entitled for 1/3rd share in the suit schedule property by holding that the transactions taken place based on the false and void Will dated 27-05-1985 are not binding on the plaintiff and for other reliefs.
4. In response to the suit summons, it is only Defendants No.1 and 3 who filed their Written Statement in the Trial Court. In their Written Statement, Defendants 1 and 3, though admitted that, the deceased Revanna is the father of plaintiff, defendant No.1 and defendant No. 2, they denied that deceased Revanna died intestate. They contended that the deceased Revanna had executed a Will on 27-05-1985, bequeathing the suit schedule property in favour of the defendant No.3, as such, after the death of Sri. Revanna, defendant No.3 became the absolute owner of the suit schedule property. Later, the said Defendant No.3 bringing to the notice of BDA about the Will of the deceased Revanna, got executed the Sale Deed in his favour. As such, defendant No.3 has become the absolute owner in possession of the suit schedule property. They denied that after the death of Revanna, the plaintiff and defendants jointly succeeded to the suit schedule property.
5. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:-
“1] Whether the plaintiff proves that the suit properties are the joint family properties liable for partition?
2] Whether the plaintiff is entitled for 1/3rd share?
3] Whether the Will dated 27-05-1985 is false and void?
4] Whether defendants prove that father of plaintiff and defendant No.1 and 2 executed a Will on 27-05-1985 bequeathing the suit property in favour of D3, who became absolute owners?
5] What order or decree?”
6. In support of her case, the plaintiff got herself examined as PW-1 and got marked documents from Exhibits P-1 to P-9. Defendant No.1 got himself examined as DW-1; Defendant No.3 got examined as DW-2 and one Sri.S. Vishwanatha got examined as DW-3. From the defendants’ side, the alleged Will dated 27-05-1985 was got marked as Ex.D-1.
7. After hearing both side, the Trial Court, by its impugned judgment and decree dated 06-12-2013 while answering issues No.1, 2 and 3 in the affirmative and issue No.4 in the negative, decreed the suit of the plaintiff, holding that she is entitled for partition and separate possession of her 1/3rd share in the suit schedule property. It is challenging the said preliminary decree, the defendants No.1 and 3 have filed the present appeal.
8. In response to the notice served, the respondent No.1/plaintiff appeared through her counsel.
Notice to Respondent No.2 was held sufficient vide order dated 08-01-2018.
9. The Lower Court records were called for and the same are placed before this Court.
10. Heard the arguments of the learned counsels from both side and perused the material placed before this Court including the memorandum of appeal and the impugned judgment.
11. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively.
12. In the light of the above, the following points arise for my consideration in this appeal:-
[i] Whether the plaintiff has proved that she is entitled for 1/3rd share in the suit schedule property as claimed by her?
[ii] Whether the Will dated 27-05-1985 has stood proved?
[iii] Whether there is any deficit in payment of the Court Fee both in the suit as well in this appeal?
[iv] Whether the judgment and decree under appeal deserves any interference at the hands of this Court?
13. Learned counsel for the appellants in his argument submitted that, the Trial Court did not consider that a registered Will was executed in favour of Defendant No.3 on 27-05-1985. He submitted that mere exclusion of one of the family members is not a suspicious circumstance, as such, the Trial Court’s finding that, the Will was shrouded with suspicious circumstances, is not a convincing reason.
Learned counsel also contended that in the absence of any specific prayer seeking declaration for setting aside the Sale Deed executed by the Bangalore Development Authority (BDA), the suit was not maintainable.
He also submitted that the suit of the plaintiff was also barred by limitation and the Court fee paid is insufficient.
In his support, he relied upon a judgment of the Hon’ble Apex Court in the case of Smt. Sushila Devi Vs. Pandit Krishna Kumar Missir and others reported in (1971) 3 Supreme Court Cases 146, which would be referred to at an appropriate stage hereafterwards.
14. Learned counsel for the respondent No.1/plaintiff in his arguments submitted that, the plaintiff could able to establish that, the alleged Will dated 27-05-1985 was shrouded with suspicious circumstances. Learned counsel submitted that, the alleged bequeath was made in favour of the grandson of the testator, ousting all the children of the testator.
He also submitted that, the defendants No. 1 and 3 who relied upon the Will did not examine the attestor to the Will, though one of the two attestors was alive. He further submitted that, the execution of the Will has not been proved in accordance with law, as such, the Trial Court has rightly held that, the Will dated 27-05-1985 was not established.
Learned counsel further submitted that, the plaintiff had prayed for the relief of declaration that, the Will was not binding on her, however, the Sale Deed dated 11-08-2009 which is at Ex.P-6 was a consequence to the alleged Will dated 27-05-1985 at Ex.D-1. Therefore, the plaintiff was not required to seek a separate relief of declaration as against the said Sale Deed.
He further submitted that, in a suit for partition, with respect to a property under joint possession, there is no period of limitation.
In that regard, learned counsel relied upon a judgment of the Hon’ble Apex Court in the case of Vidya Devi Alias Vidya Vati (Dead) by LRs. Vs. Prem Prakash and others reported in (1995) 4 Supreme Court Cases 496.
He further submitted that even otherwise, the cause of action has accrued to the plaintiff only when the BDA executed the Sale Deed in favour of defendant No.3.
Finally, with respect to the alleged deficit Court Fee, learned counsel submitted that, he concedes about the non-payment of the sufficient Court Fee. As such, he has filed a Memo, computing the Court Fee and submitted that, the amount of `50,718/- he is required to pay as a deficit in the Court Fee.
15. The relationship between the parties that, defendant No.1 is the elder brother, plaintiff and defendant No.2 are his younger sisters and defendant No.3 is the son of defendant No.1 respectively, is an admitted fact. Even though the plaintiff in her plaint stated that, the suit schedule property was a self-
acquired property of late Revanna, however, subsequently, at one place also stated that, it is a co- parcener’s property. But the defendants No.1 and 3 in their Written Statement have admitted that the suit schedule property was a self-acquired property of late Sri. Revanna. The pleading as well as the evidence of the plaintiff that the suit schedule property was allotted to Sri. Revanna under a lease-cum-sale agreement dated 03-01-1977 as per Ex.P-4 is also not denied or disputed from the defendants’ side. The pleading and evidence of the plaintiff that, her father Sri. Revanna died on 10-12-1985 which is further evidenced by the Certificate of Death at Ex.P-5, is also not denied or disputed from the defendants’ side. Further, the evidence of the plaintiff that, the BDA executed a registered Sale Deed in favour of the defendant No.3 on 11-08-2009 as per the certified copy of the Sale Deed at Ex.P-6, is also an undisputed fact.
However, the main contention of the plaintiff that, her father Sri. Revanna died intestate, as such, his alleged Will, copy of which is at Ex.P-7 and Ex.D-1, is not a genuine Will executed by her father, is seriously disputed by the defendants No.1 and 3. Defendant No.2, who is admittedly the younger sister to both plaintiff and defendant No.1, has not contested the matter.
16. In the cross-examination of PW-1, it was suggested that, the deceased Revanna had left a Will in favour of defendant No.3, however, the witness has not admitted the same as true. It was also suggested to the witness that, the BDA has executed the Sale Deed in favour of defendant No.3 based upon the said Will. It was further suggested to the witness in the cross- examination that, the said BDA has mentioned about the defects in the Will in the Sale Deed, for which, the witness has stated that it might be. Thus, the plaintiff, both in her pleading as well in her evidence, has seriously disputed about the genuinity and authenticity of the Will at Ex.P-7/Ex.D-1 and dated 27-05-1985.
17. DW-1 and DW-2 in their examination-in-chief have reiterated the contentions taken up by them in their Written Statement and specifically stated that, the suit schedule property which was the self-acquired property of deceased Revanna was bequeathed by him under a registered Will in favour of Defendant No.3 (DW-2) vide the Will dated 27-05-1985. DW-2 also got produced a copy of the said Will and marked as Ex.D-1.
18. In the cross-examination of DW-1, it was suggested to the witness that, the signature found on the alleged Will, was not that of deceased Revanna. However, the witness has not admitted the same as true. The alleged signatures of deceased Revanna on the other documents including his application made to the then CITB for allotment of site at Ex.P-2, a copy of the affidavit submitted by the applicant - Revanna to the CITB which is at Ex.P-3 and the signature of the said Revanna on the copy of the lease-cum-sale agreement which is at Ex.P-4 were confronted to DW-1, who admitted that those documents contain the signatures of his father among which, the signature at Ex.P-3(a) of his father was also specifically marked. A suggestion was made to DW-1 in the very same cross-examination that the admitted signature of Revanna in Ex.P-3 and the alleged signature of the testator Revanna in Ex.P-7 are different, for which, the witness replied stating that, his father was putting his signature even in Kannada language also. However, he admitted that in the other documents executed in favour of BDA, his father has put his signature in English language. Thus, admittedly, the signature of Revanna in Exs.P-2 and P-3 which have been admitted by defendant No.1 (DW-1) are in different languages than the alleged disputed signature in the Will at Ex.P-7/Ex.D-1. The admitted signatures are in English language, whereas, the disputed signature is in Kannada language. That being the case, when the plaintiff admittedly being the daughter of the deceased Revanna has seriously disputed the very execution of the Will dated 27-05-1985 by her father, it was required to be established by the defendants No.1 and 3 that, the said Will was executed by deceased Revanna. In that regard, an issue at issue No.4 was also specifically framed by the Trial court. A mere stating that his father was also signing in Kannada language was not sufficient, but he was also required to substantiate his statement with other cogent evidence including producing any other document wherein his father had admittedly shown to have signed in Kannada language. That exercise the defendant has not done in the Court below. As such, primarily, so far as the signature of the deceased Revanna upon Ex.P-7/Ex.D-1 is concerned, it creates a doubt.
19. The alleged Will at Ex.P-7/Ex.D-1 is shown to be a registered document and attested by two witnesses. The first attesting witness is Siddaramappa. The second attesting witness has been referred to as ‘Shashinatha’ in the evidence of DW-1; as ‘Shashidharaiah’ in the evidence of DW-2 and as ’T.R. Shashidar’ in the impugned judgment, but whose signature by a bare look in the alleged Will at Ex.P-7/Ex.D-1 reads as ‘T. Sheshadri’. The defendants got examined one Sri.S. Vishwanatha as DW-3, which witness in his examination-in-chief in the form of affidavit evidence has stated that, he knows the parties to the suit since he is the uncle of defendant No.3. Admittedly, he is the brother-in-law of defendant No.1. He has stated that during the month of April 1985, Sri. Revanna, the father of the plaintiff and defendants No.1 and 2 approached him with an idea in his mind for making a Will in favour of defendant No.3 with respect to the suit schedule property and asked for his help in executing the same. Since he (the witness) was employed and his job was transferable, he suggested the said Revanna to approach his father Sri. Siddaramappa for any help in executing the Will. Accordingly, with the help of his father and well wishers, Revanna executed a Will on 27-05-1985 as per his wish in favour of the third defendant and intimated the same to him (to this witness for his knowledge). The witness has also identified the signature of his father (as witness No.1) on the certified copy of the Will and got it marked at Ex.D-1(a).
In his cross-examination, DW-3 has stated that though he has seen deceased Revanna, but, he has not seen his signature. He has also stated that he has not produced any document containing the signature of his father Siddaramappa. The suggestion made to him that Ex.D-1(a) was not his father Siddaramappa’s signature was not admitted as true by the witness.
20. It is in the above evidence of the parties, the Will at Ex.P-7/Ex.D-1 is required to be appreciated. Admittedly in the instant case, Revanna is alleged to have not given share with respect to the suit schedule property to any of his children, but is alleged to have bequeathed the entire property in favour of his grandson i.e. defendant No.3 who is also admittedly the son of defendant No.1. As such, the children of the alleged testator were excluded from any share in the property under the Will.
21. Learned counsel for the appellants submitting that, mere exclusion of one of the family members is not a suspicious circumstance in the appreciation of a Will, has relied upon a judgment of the Hon’ble Apex Court in the case of Smt. Sushila Devi Vs. Pandit Krishna Kumar Missir and others (supra).
In the said case, at paragraph 5 of the judgment, the Hon’ble Apex Court was pleased to observe as below:-
“5. Prima facie, the circumstance that no bequest was made to the appellant by the testator would make the will appear unnatural but if the execution of the will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the will invalid. If the bequest made in a will appears to be unnatural then the Court has to scrutinise the evidence in support of the execution of the will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behavior but there is no gainsaying the fact that some individuals do behave in an abnormal manner. Judges cannot impose their own standard of behavior on those who execute Wills. As observed by this Court in M. Venkatachala lyengar v.
B.N. Thimmajamma and others that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances the onus would be on the propounder to explain them to the satisfaction of the Court before the will can be accepted as genuine.”
22. The above observation made by their Lordships would clearly go to show that, merely because of the fact that a family member was excluded from any benefit under the Will, it would not make the Will invalid. However, the further observation made by the Hon’ble Court is of most importance that, in such an event, the Will appears to be unnatural, in which case, the execution of the Will has to be satisfactorily proved.
The Hon’ble Apex Court has further observed that if the bequest made in the Will appears to be unnatural, then, the Court has to scrutinise the evidence in support of the execution of the Will with a greater degree of care than usual, because, every person must be presumed to act in accordance with the normal human behavior, but there is no gainsaying the fact that some individuals do behave in an abnormal manner.
Therefore, in the case on hand also, though merely because of the fact that the plaintiff was not given any property in the Will, by itself would not make the Will invalid, but ousting all the family members and bequeathing the property only to his grandson by the testator would attract a thorough scrutiny of the evidence in support of the execution of the Will before holding that the Will was established by the propounder.
23. Section 63 of the Indian Succession Act, 1925, speaks about the ‘Execution of unprivileged Wills’. It reads as below:-
“63. Execution of unprivileged Wills – Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-
(a) 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.
(b) 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.
(c) 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 acknowledgement 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.”
A reading of the above Section would go to show that Ex.P-7/Ex.D-1 being said as an ‘unprivileged Will’, it was required to be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person signing the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and it also requires to show that each of the witnesses has signed the Will in the presence of the testator. However, it is not necessary that more than one witness be present at the same time.
24. Section 68 of the Indian Evidence Act, 1872, speaks about the ‘Proof of execution of document required by law to be attested’. It reads as below:-
“68. Proof of 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 or proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence:
PROVIDED that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”
According to the above Section, examining at least one of the attesting witnesses for the purpose of proving its execution, provided, the witness was alive, and subject to the process of the Court and capable of giving evidence, was necessary.
25. In the instant case, the defendants No.1 and 3, in order to prove the execution of the Will, admittedly have not examined any of the attesting witnesses, but have examined one Sri. S. Vishwanatha, said to be the son of Sri. Siddaramappa, the alleged attesting witness to the Will, as DW-3. Though the said witness has stated that deceased Revanna first approached him with an idea in his mind for making a Will in favour of the defendant No.3, but directed the testator to approach his father, but the said contention is neither the pleading nor the evidence of the defendants as DW-1 and DW-2. Further, DW-3 also has not stated that deceased Revanna disclosed before him of his intention and desire to make a Will bequeathing the property to the third defendant in express terms. But the witness has stated that the said Revanna approached him with an idea in his mind of making a Will. The witness has nowhere stated as to how the alleged idea in the mind of the testator was percolated to him. However, the fact remains that DW-3 was not an attesting witness, but according to the said witness, it was his father - Sri. Siddaramappa who was an attesting witness.
DW-3 has further stated that with the help of his father and well wishers, Sri. Revanna executed a Will on 27-05-1985 in favour of the third defendant and intimated the same to him for his knowledge. The said statement of the witness is also neither the pleading nor the evidence of defendants No.1 and 3. Had really deceased Revanna initially approached DW-3 – S. Vishwanatha, seeking his help to be an attestor to the Will, but later was directed to approach Siddaramappa, then, defendants 1 and 3 who are very close relatives of DW-3 – S. Vishwanatha and his father - Siddaramappa should have been necessarily aware of the said fact and stated about the same in their pleading and in their evidence. It is repeated at this juncture that, the sister DW-3 is the wife of Defendant No.1 (DW-1). Thus, DW-3 and defendants No.1 and 3 standing in such a close blood relationship, the development alleged to have been transpired at the time of execution of the Will, should have been necessarily stated by the defendant Nos.1 and 3 at the earliest point of time. However, neither of them has stated anything about the deceased Revanna approaching DW-3 first, seeking his assistance in executing the Will by acting as an attestor. This also creates some doubt in believing the version of DW-3 that, the deceased Revanna had first approached him, and making him to know his intention, which was alleged to be in his mind, about he bequeathing the property to defendant No.3, seeking the assistance of DW-3.
Even according to DW-3, he has not seen Revanna executing the Will. For that matter, admittedly, DW-3 has not seen the Will at all. Because, he has no where stated that at any point of time, prior to entering the witness box, the witness has seen the testator including the alleged second attesting witness. As such, when Siddaramappa being his close relative, instead of directly approaching Siddaramappa requesting him to be an attestor to the Will, but approaching his son i.e. DW-3 and also the testator- Revanna said to have intimated DW-3 about his intention of execution of the Will, creates a doubt in the circumstance of the case.
It is not in dispute that DW-3 is the son of Siddaramappa who is alleged to be one of the two attestors to the Will. DW-3 has identified the signature of his father in the Will at Ex.D-1(a). No where the witness in his evidence has stated that, he was acquainted with the signature of his father Siddaramappa. Admittedly, he has not produced any documents containing the signature of his father. As such, the denial suggestion made from the plaintiff’s side to DW-3 in his cross- examination that Ex.D-1(a) is not the signature of Siddaramappa - the father of DW-3, though is not admitted by the witness but carries some weight with it. It is because when the defendants have chosen to examine the son of the alleged deceased attestor, that too, in the circumstance where the alleged bequeathing the property has been made to a person excluding the children of the testator, then, it was expected of the defendants 1 and 3 to produce some documents containing the signature of Siddaramappa to substantiate their contention that the signature at Ex.D- 1(a) was the signature of Siddaramappa, the attestor who is said to be the father of DW-3. This also further thickens the cloud of suspicion surrounding the alleged execution of the Will at Ex.P-7/Ex.D-1.
Though the Will at Ex.P-7/Ex.D-1 shows that it has been attested by two witnesses, but defendant No.3 in his cross examination as DW-2 has stated that he does not know whether the said second attesting witness was alive. Similarly, the defendant No.1 as DW-1 in his cross-examination, calling the said witness as Shashinatha has stated that he does not know the said person. However, his father told him that said Shashinatha signed the Will after his return by making a Will. In that way, it is not the case of the defendants 1 and 3 that the said second attesting witness to the Will was not alive. It is also not their case that his whereabouts are not known to them. But a reading of their evidence in its entirety would clearly go to show that they did not evince any interest in finding the said second attesting witness and to bring him to the Court to lead his evidence as an attesting witness. Therefore, when the proof of the Will requires examining at least one of the attesting witnesses and though the second attesting witness could have been brought to the Court, the defendants No. 1 and 3, for the reasons best known to them, did not choose to do it. On the other hand, they chose to examine DW-3, the son of the alleged Siddaramappa and the evidence of the said witness, for the reasons observed above, does not inspire confidence to believe the same. Consequently, the suspicion surrounding the Will gets more thicker.
26. Further, in the Will at Ex.P-7/Ex.D-1, it could be noticed that there is no endorsement to the effect that, each of the witnesses to the Will has signed the Will as a witness in the presence of the executor/testator or at his direction or after obtaining the personal knowledge of the signature of the testator of the Will. On the contrary, as observed above, DW-1 in his cross-examination, apart from stating that, he does not know Shashinatha, the second attesting witness to the Will, has also stated that his father told him that said Shashinatha signed the Will after his father completed the Will and returned. This means before the second attesting witness signing the Will as an attesting witness, it was already completed and the first witness Siddaramappa must have already signed the Will. If the said Siddaramappa had already put his signature, the testator Revanna by then must have signed the Will and Siddaramappa after receiving acknowledgment or at the direction of the testator must have signed it. Therefore, when the second attesting witness has signed the Will subsequently, then, there must be some material to show that he had received from the testator a personal acknowledgment of his signature or mark. However, admittedly, there is neither any pleading nor evidence in that regard. As such, the suspicious circumstance shrouding the Will at Ex.P-7/Ex.D-1 makes it highly un-safe to believe that the said Will was executed by the deceased Revanna, bequeathing the property in favour of Defendant No.3, after excluding his children. As such, it is not safe to act or rely upon the said Will.
Probably, the BDA also did not accept the said Will as free of any suspicion, as such, it is for the said reason in its Sale Deed at Ex.P-6 made in favour of defendant No.3 -Thejas in a recital, the BDA has mentioned that the Law Officers of the Authority have opined that the Will was defective. As such, disowning the liability of the authority in any manner, in future course, and without causing any prejudice to the rights and entitlements of any of the other legal representatives/claimants as against the said Sale Deed, Ex.P-6 Sale Deed was executed by BDA in favour of the third defendant. As such, when the very same Will and the transactions based on the said Will were sought to be held as not binding, the Will which now proves to be not safe to believe, consequently proves that the Sale Deed at Ex.P-6 is also not binding on the plaintiff. As such, the argument of the learned counsel for the appellants/defendants 1 and 3 that the plaintiff is required to specifically pray for the relief of declaration to declare the Sale Deed also as void, is not acceptable.
27. The other argument of the learned counsel for the appellants was that, the suit was barred by limitation.
Learned counsel for the appellants in his argument submitted that, execution of the Will by deceased Revanna was to the knowledge of the plaintiff, as such, the cause of action for her to challenge the Will has arisen on 10-12-1985, the date on which Revanna died. Even though there is no specified time limit for a suit for partition, however, under Article 113 of the Limitation Act, within three years from the accrual of the cause of action, the plaintiff should have filed the suit. As such, when the deceased Revanna died on 10-12-1985, within three years thereafter, the plaintiff ought to have instituted the suit.
28. Per contra, the learned counsel for the respondent No.1/plaintiff in his argument relied upon a judgment of the Hon’ble Apex Court in the case of Vidya Devi Alias Vidya Vati (Dead) by LRs. Vs. Prem Prakash and others (supra). In paragraph No.20 of the said judgment, the Hon’ble Apex Court was pleased to observe as below:-
“20. The legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other co-sharers. Since the filing of the suit is wholly dependent upon the will of the co-sharer, the period of limitation, specially the date or time from which such period would commence, could not have been possibly provided for by legislature and, therefore, in this Act also a period of limitation, so far as suits for partition are concerned, has not been prescribed. This, however, does not mean that a co-sharer who is arrayed as a defendant in the suit cannot raise the plea of adverse possession against the co-sharer who has come before the court as a plaintiff seeking partition of his share in the joint property”.
29. In the instant case, the primary relief sought for by the plaintiff is for partition. Admittedly, the suit schedule property was acquired by deceased Revanna - the father of the plaintiff, defendant No.1 and defendant No.2. The defendants 1 and 3 have admitted that the said property was a self-acquired property of the deceased Revanna, as such, after the death of Revanna, the property has continued in the family of the deceased which also includes the present plaintiff.
Throughout, it is the case of the plaintiff that, the alleged Will dated 27-05-1985 was fabricated. No where the plaintiff has stated that she was aware about the existence of the Will either during the lifetime of deceased Revanna or on 10-12-1985, the date when deceased Revanna died. On the other hand, with respect to the accrual of cause of action, the plaintiff in her plaint has stated that the cause of action inter alia has accrued to her on 11-08-2009 when the BDA executed the Sale Deed in favour of defendant No.3 as per Ex.P-6. As such, recurring of cause of action and its continuation has extended upto 11-08-2009 and also subsequently when the plaintiff is alleged to have made a claim for partition of the suit property and the same when said to be denied by the defendants No.1 and 3. Therefore, when the Sale Deed at Ex.P-6 is said to have been made in favour of the defendant No.3 subsequent to the alleged Will dated 27-05-1985, the plaintiff has decided to challenge the alleged Will and the consequential Sale Deed in favour of defendant No.3. Therefore, the present suit filed by the plaintiff on 16-09-2009, is within thirty-five days after BDA executing the Sale Deed dated 11-08-2009 in favour of defendant No.3. As such also, the suit cannot be held as barred by time. The argument of the learned counsel for the appellants thus is not acceptable on the said point also.
30. Lastly, the argument of the learned counsel for the appellants was that, the plaintiff has paid a fixed Court Fee of `200/- in the Court below, valuing the suit under Section 35(2) of the Karnataka Court-Fees and Suits Valuation Act, 1958 (hereinafter for brevity referred to as “Court Fees Act”). However, she has not valued the suit for the relief of declaration. The plaintiff has sought for requesting the Court to hold that the transactions referred based on the false and void Will dated 27-05-1985, are not binding on her. Therefore, she ought to have paid the Court Fee under Section 24 (a) of the Court Fees Act.
31. During the course of argument, learned counsel for the respondent No.1/plaintiff has filed a memo computing the Court Fee on the alleged market value of the suit schedule property as on the date of institution of the suit, relying upon a Notification of the State bearing No.CVC/B.U.D/5/2006-07, Bengaluru dated 17-04-2007. The respondent No.1 has valued the suit at a market value at `7,92,600/- and has assessed the Court Fee payable by her at `50,718/- which excludes the Court Fee of `200/- payable for the relief of partition in the Court below and submitted that, the plaintiff undertakes to pay the Court Fee of `50,718/- as the deficit Court Fee.
32. Section 11 (4)(a) of the Court Fees Act empowers this Court, either on its own motion or on the application of any of the parties, to consider the correctness of any order passed by the Lower Court affecting the fee payable on the plaint or in the Lower Court and determine the proper fee payable thereon. Thus, this Court is not precluded from finding out the quantum of the Court Fee payable by the plaintiff in the Court below. Since the plaintiff herself now by filing a memo and through the submission of her counsel has stated that, she is required to pay a deficit Court Fee of `50,718/- in the Court below and the learned counsel for the respondent No.1 makes a submission undertaking that the plaintiff would pay the deficit Court Fee in the Court, I am of the view that, the question of payment of deficit Court Fee also would not enure to the benefit of the defendants No.1 and 3 in allowing the appeal.
33. Accepting the contention and argument of the appellants that there was deficit Court Fee, the plaintiff has admitted that there is a deficit Court Fee and has undertaken to pay the same.
34. A reading of the prayer in the plaint would also go to show that the plaintiff though has used the word “by holding”, in fact, has sought the relief of declaration to declare that the transactions referred and based on the Will dated 27-05-1985 are not binding on her. As such, the Sale Deed at Ex.P-6 favouring defendant No.3 executed by BDA since has now proved to be not binding on the plaintiff, she is required to pay the Court Fee treating the suit as the one for declaration. Thus, the plaintiff has computed the Court Fee under Section 24(a) of the Court Fees Act and undertaken to pay the deficit Court Fee.
That being the case, it is needless to say that the appellants being the defendants 1 and 3 in the Court below since have challenged the impugned judgment and decree and have assessed the Court Fee in the appeal under Section 49 of the Court Fees Act, are also required to pay the equivalent deficit Court Fee in this appeal under the very same Section 49 of the Court Fees Act.
35. At this stage, learned counsel for the appellants relying upon a judgment of the Division Bench of this Court in the case of B.S. Malleshappa Vs. Koratagigere B. Shivalingappa and others reported in ILR 2011 Kar.3988, submitted that though the plaintiff is liable to pay the deficit Court Fee of `50,.718/-, but the appellants are not liable to pay.
In Malleshappa’s case (supra), the suit was for partition, alleging that the suit properties were Joint Family Properties. As the plaintiff had valued them for the purpose of jurisdiction at `15.00 lakhs and valued his share at `3.00 lakhs and had paid the fixed Court Fee, the defence was that the partition had already taken place and hence, all the properties are not Joint Family Properties and some are acquired by the defendants after the partition set-up. The Trial Court, accepting the defence held that, the plaintiff was liable to pay the ad-valorem Court Fee and while dismissing the suit had awarded compensatory costs. In the appeal filed by the plaintiff, the defendants requested the Court to determine the Court Fee payable on the Memorandum of appeal, as required under Section 11(4)(a) of the Court Fees Act. It was held by the Division Bench of this Court that, payment of Court Fee has to be determined with reference to the plaint averments alone. Court cannot at the instance of the defendant or suo motu convert the suit as one under Section 35(1) of the Court Fees Act.
36. In the instant case, it is the appellants who were the defendants 1 and 3 in the Court below, have raised the issue of Court Fee while challenging the impugned judgment in this appeal. It was the defendants who canvassed the arguments that the suit is not a suit for partition simplicitor, but in fact, the plaintiff has prayed the relief of declaration though she has called it as “by holding that”. The plaintiff as a respondent in this appeal admitted that there was payment of deficit Court Fee in the Court below and has undertaken to pay the deficit Court Fee, as observed above. The Court also exercising its power under Section 11 (4)(a) of the Court Fees Act has observed that, there is deficit Court Fee and the plaintiff is required to pay the same. In that view of the matter, the judgment relied upon by the appellants in Malleshappa’s case is not applicable to the facts and circumstances of the present case. As such, the contention of the learned counsel for the appellants that it is only the plaintiff who has to pay the deficit Court Fee, but not the appellants in this appeal, is not acceptable.
37. Since it is now established that the alleged Will at Ex.P-7/Ex.D-1 is shrouded with suspicious circumstances and not safe to act upon the same, the claiming of the ownership by defendant No.3 on the suit schedule property, solely based upon the said Will, is not acceptable. Thus, the property of Revenna being a self- acquired property, all the three children of Revanna i.e. plaintiff, defendant No.1 and defendant No.2 being his children are equally entitled for their respective share in the suit schedule property.
38. The Trial Court since has come to the same conclusion, I do not find any reason in interfering with the said judgment and decree under appeal.
Accordingly, I proceed to pass the following:-
O R D E R [i] The appeal is dismissed;
[ii] The judgment and decree dated 06-12-2013 passed in O.S.No.26928/2009 by the learned XXVIII Additional City Civil Judge at Mayo Hall Unit, Bangalore (CCCH.29), is hereby confirmed, however, with a direction to the plaintiff to pay the deficit Court Fee of `50,718/- in the Court, where the Final Decree Proceedings against the impugned preliminary decree is said to be pending, within four weeks from today. An affidavit of compliance, with the receipt to be filed in the registry of this Court within the same period;
[iii] The deficit Court Fee payable by the appellants under Section 49 of the Court Fees Act is also required to be paid by them, in the registry, within four weeks from today.
In case the deficit Court fees are not paid, the registry of this Court to recover the same in accordance with law and as an arrears of land revenue.
Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.
Sd/- JUDGE BMV*