1OS.No.538 of 2013
IN THE COURT OF THE ADDITIONAL RENT CONTROLLERCUMXVIII
JUNIOR CIVIL JUDGE: SECUNDERABAD.
Present: Smt.Chittibomma Ashalatha, Prl. Rent ControllercumXVII J.C.J., Secbad, (FAC) Additional Rent ControllerCum XVIII Junior Civil JudgeCum Secunderabad.
MONDAY THE 31st DAY OF DECEMBER, 2018.
O.S.No.538 of 2013
Between:
S.AMARENDER REDDY, S/o.Sri.Satti Megha Reddy, aged about 40 years, Occ: Advocate, R/o.H.No. 1111146/1, Plot No.43, Road No.5, Sowbhagyapuram, Telephone Colony, Hyderabad, Executor and Trustee to
the Estate of late Arcot Kumaresan Mahesh, Advocate... PLAINTIFF.
A N D
1. SMT.K.RENUKA, W/o. Sri.K.Kumarayya, aged about 40 years, Occ: Housewife, R/o.H.No. 1383404/89, Arjun Nagar, Begumpet, Hyderabad.
2. KEERTHI ARUN KUMAR, S/o. Sri Keerthi Prabhakar, aged about 29 years, Occ: Advocate, R/o.Flat No.404, Pasham Sathaiah Apartments, 1257, Domalguda, Hyderabad.
3. M.MOHAN BUJJI, S/o. Late Sri.Satyanarayana, aged 43 years, Occ: Advocate, R/o Plot No.4A, Vijayanagar Colony, Picket, Secunderabad.
4. S.SAMPATH (Died ) (D14 and D15 are added as his LRs as per orders in I.A.No.21/16 dt:27.6.2016).
5. KEDAR JOSHI, S/o.Sri.D.K.Joshi, aged about 32 years, Occ: ICICI Bank Employee, R/o. H.No.1721, MIG, BHEL, Ramachandrapuram, Hyderabad.
6. T.VINOD, S/o.Sri.T.Sharanappa, aged about 36 years, Occ: ICICI Bank Employee, R/o. H.No.8238/1, Pratap Nagar Colony, Punjagutta, Hyderabad.
7. Mrs.GAJALAKSHMI JAGAT (Died) (D16 and D17 are added as her LRs as per orders in I.A.No.45/16 dt:20.12.2016).
2OS.No.538 of 2013
8. Smt.AKILA RAJKUMAR, W/o.Sri.Rajkumar, aged about 50 years, Occ: Household, R/o.Flat No.44, Raksha, 2nd Cross, LIC Colony, III Block East, Jaya Nagar, Bangalore560 011.
9. K.GIRIDHAR, S/o.Sri.C.Kesavan, aged about 52 years, Occ:Engineer, R/o.A6, Plaza Manere No.10, Karu Mariamman Koil Street, Vadapalani, Chennai600 026.
10.MUNAWAR PASHA, S/o. Late Sri.Abdul Jabbar, aged about 42 years, Occ: Business, Proprietor M/s.New India Builders, 4/1, 2nd Main Road, Ist Block, R.T.Nagar, Bangalore560 032.
11.SUNNY JOSEPH, S/o.Sri.Joseph Mathews, aged about 46 years, Occ: Employee in Bharath Petroleum Corporation Limited, R/o.H.No.70, 3rd Cross Road, D Costa Square, St. Thomas Town Post, Bangalore560 084.
12.Dr.Vivek Narendran, S/o. Late Dr.A.J. Narendran, aged about 50 years, Occ: Medical Practitioner, C/o.Dr.Mrs. Samanthakamani Narendran, R/o. H.No.716, 7th Main, JP Nagar, III Phase, Bangalore560 078.
13.V.J.VIJAY SHANKER, S/o. Late Sri V.B.Jayashanker, aged about 59 years, R/o.H.No.28, Ist Floor, 2nd Cross, Behind Tennis Court, 3rd Main Road, Vidyaranpura Post, Bangalore560 097.
14.Smt.RUKUMANI SAMPATH, W/o. Late Sri.S.Sampath, aged about 82 years, Occ: Housewife, R/o.Flat No.105, Pasham Sathaiah Apartments, Opp. Domalguda Market, Hyderabad.
15.SMT.PADMA MUKUNDHAN, W/o. Sri.Mukundhan, aged about 46 years, Occ:Housewife, R/o.Plot No.1045, 9th Street, Poompuhar Nagar, Kolathar, Chennai600099.
16.SRI.GAUTHAM JAGATH ARCOT, S/o.Late Arcot Rajashaker Jagath, aged 3OS.No.538 of 2013 about 38 years, Occ: Private Service, R/o.Flat No.B1702, Landmark Garden Housing Society, Next to Bishop’s School, Plot No.78, Kalyani Nagar, Pune411006 (Maharastra State).
17.SARATHI JAGATH ARCOT, S/o. Late A.Rajasekharan Jagat, aged about 33 years, R/o.H.No.C18 II Crescent Road, Ist Avenue, Sainikpuri, Secunderabad
.. DEFENDANTS.
This suit is coming before me for final hearing on 24.12.2018, in the presence of Sri R.A.Krishna, Advocate for the Plaintiff; and of Sri
I.Lilender, Advocate for the Defendants 1, 2, 4, 8 and 9; and of Sri Hari
Hara Kumar, Advocate for the Defendant No.7; and of Sri D.Prem Kumar,
Advocate for the Defendant No.11; and of Sri P.S.N.Murthy, Advocate for the Defendant No.13, 16 and 17; defendants 3, 5, 6, 10 and 12 are set exparte; defendant Nos. 4 and 7 died, and the matter having stood over for consideration, till this day, the court made the following:
J U D G M E N T
This is a suit filed by the plaintiff to declare him as the
Executor and Trustee of the Estate of late Sri.Arcot Kumaresan Mahesh, duly appointed under the Will dated 11.10.2012, executed by late Sri.Arcot
Kumaresan Mahesh and to carry out the directions of the Testator under the Will in respect of “A” and “B” schedule properties by disposing off the same and to distribute the sale proceeds thereof; Grant mandatory injunction against 7th defendant by removing her from the suit schedule A property; award damages against 7th defendant @ Rs.15,000/ per month or on the basis of rents prevailing in the locality for use and occupation of the suit schedule Aproperty from the date of suit till she vacates and hand over vacant possession to the plaintiff; for costs of the suit.
4OS.No.538 of 2013
2.The suit schedule property “A” property is, all that an undivided and unspecified half share of Plot No.25 in Sy.No.25, measuring 196.7 Sq. yards forming part of the layout plan of the society and situated at Chandulal Bowli, Secunderabad3, in Secunderabad Cantonment limits bearing H.No.39, R & D Colony, Defence Enclave, Sikh Village,
Secunderabad.
3.The suit schedule property “B” property is, all that piece and parcel of land bearing H.No.70, IIIrd Cross Road, D’costa Square,
Bangalore, Ward No.86 (Old) No.49 (New) consists of Ground Floor constructed to an extent of 1600 Square Feet RCC Structure.
4.The brief averments of the plaint are that, the plaintiff was a friend, well wisher and colleague of late Sri Arcot Kumaresan Mahesh,
Advocate (hereinafter referred as Mahesh / Testator). During his life time,
Mahesh was an Advocate who executed a Will on 11.10.2012, bequeathing suit schedule A & B properties in favour of some of his friends and relatives as per their respective shares shown in the Will and allotted a major share of 20% for charity. Under the said Will, the plaintiff has been appointed as the Executor and Trustee and has been authorized to implement the Will after his demise and as per his directions. The defendant no.1, was the house keeperCumcook in the house of the
Mahesh/Testator, for about 15 years. Defendants 2 and 3 are friends and wellwishers of late Mahesh. Late Mahesh, used to work as Junior
Advocate in the office of Keethi Prabhakar, who is father of 2nd defendant.
The 4th defendant is a friend, wellwisher and a senior advisor of late
Mahesh and he was also well acquainted with the family members of the testator. The defendants 5 and 6 were Collegemates and family friends of 5OS.No.538 of 2013 late Mahesh and defendants 7 to 9 are the cousins of the Testator.
Defendant no.10, is the Agreement holder, who had agreed to purchase the suit “B” schedule property under an Agreement of sale dated 12.10.2012.
The 11th defendant is the tenant in the suit Bschedule property at
Bangalore under a Rental Agreement dated 20.10.2010. Defendants 12 and 13 are the cousins of the Testator.
5.The testator was the absolute owner of suit A and B Schedule properties, who got the same under a registered Will dated 20.06.07, executed by his father late A.J.Kumaresan, who died on 4.12.2007, since then the testator has been in possession and enjoyment of the same. Late
Mahesh, was a very learned Advocate. He was unmarried and died on 16.10.2012, due to illhealth. His parents A.J.Kumaresan and
Smt.Parvathi Kumaresan, have predeceased him. Defendant no.7, who is cousin of late Mahesh, and her son Sarathi/ D17, are living in Sainikpuri,
Secunderabad, and they were not in good terms with late Mahesh. On the morning of 27.09.2012, the Testator fell down in the bathroom and developed acute back pain and breathing problem, immediately defendant no.1 called the plaintiff and defendants 2 to 6 and all of them rushed the testator to BBR Hospital, Balanagar, where first aid was given, and referred him to Apollo Hospital, Secunderabad. Unfortunately, even the authorities of Apollo Hospital were not able to admit the Testator for want of accommodation in ICU and they in turn referred the patient to the
Oxygen Hospital, Vikrampuri, Secunderabad. The testator was admitted there in ICU on 27.09.2012, at 2:00 P.M., and treated there. His health condition became stable gradually and almost came to normal, except for kidney problem. On 06.10.2012, Mahesh, was shifted to Room No.406.
6OS.No.538 of 2013
The Doctor’s note on 7.10.2012, was that “the Patient is stable, but needs dialysis support which can be done on OP Basis”. The Hospital charges in the ICU, heavy medical bills and Dialysis charges etc., have become very costly and the testator was not in a position to meet the same. Hence, the testator decided to dispose off ScheduleB house at Bangalore, for that purpose he executed a General Power of Attorney dated 5.10.2012, appointing defendants 3, 5 and 6 as his Attorneys authorizing them to deal in the sale proceedings of Bschedule property. The plaintiff has been visiting the Hospital every day to meet the Testator and the parents of defendant no.5, have also been visiting the Hospital daily. On 10.10.2012, the plaintiff met Mahesh, in Room No.406 of the Hospital, Mahesh informed him that defendant no.10 who is a friend of 5th defendant has offered to purchase the “B” schedule house for Rs.1,60,00,000/ only, although the property can fetch Rs.3 crores and he informed the GPA holder to go ahead with the said deal. Sri Mahesh then told with the plaintiff that he intends to execute a Will as he has become a confirmed patient due to complete Kidney failure and asked the plaintiff to take dictation of Will, he then asked the plaintiff to get ready the Will and also asked the plaintiff to request all his friends to come to the Hospital for signing as witnesses in the proposed Will. Accordingly, the plaintiff got the
Will ready and also requested two witnesses to come to the Hospital on the evening of 11.10.2012. On 11.10.2012, the plaintiff went to the
Hospital along with two witnesses P.T.Rao and R.Venkat Reddy, they went to Room No.406, met Mahesh and then the plaintiff handed over the Will to Mahesh, after going through the same Sri.Mahesh, approved the same and then read over and explained the contents of the Will to the two 7OS.No.538 of 2013 witnesses, who understood the same and then Mahesh signed the Will in a sound and disposing state of mind in the presence of the plaintiff and the above two witnesses and then the said two witnesses have also signed in the Will as witnesses in the presence of the Testator. On the next day, ie., on 12.10.12, Mahesh was normal who informed the plaintiff that defendant no.5, called him and informed him that an Agreement of Sale executed in favour of 10th defendant and that they have received substantial amount from the 10th defendant. The original Agreement of sale was with 10th defendant and on his insistence, the GPA holders ie., defendants 3, 5 and 6 handed over all the original title deeds and link documents to him. The Testator has given the original title deeds of both A and B schedule properties to Sri.Keerthi Prabhakar, Senior Advocate in the year 2007. The Testator has taken the original title deed in respect of B schedule house for the purpose of mutation when his mother died in the year 2011. On 13.10.2012, as seen from the Doctor’s note at 9:10 A.M., the Blood Pressure and pulse rate of the patient were normal and at 10:40
A.M., also quite normal. Suddenly, at 11:40 A.M., as per the Doctor’s note “Patient is nonresponsive”. Unfortunately, inspite of best efforts of the
Doctors attending Mahesh for four days in ICU, he passed away on the evening of 16.10.2012, at 7:29 P.M. The defendant no.5, cleared all the hospital bills. The body of the Testator was taken to Burial ground at
Alwal, Secunderabad. On 17.10.2012, defendant no.7, informed that her first son Goutham, was not able to come to perform last rites and therefore her 2nd son Sarathi, agreed to perform and accordingly he performed the last rites of the Testator. The defendant no.7, insisted that she should be paid the money for all expenses and she was paid Rs.20,000/ by the 5th 8OS.No.538 of 2013 defendant to meet the expenses for immersion of ashes of the Testator.
Apart from that, defendant no.7, had earlier taken Rs.5,000/ from the defendant no.3, and after rituals she returned Rs.2,500/ out of the said amount. Thus, defendant no.7, has not spent even a single pie for the sake of her cousin, but she now wants to grab the entire estate of late
Mahesh, by setting up a forged and fabricated Will. The plaintiff being
Executor and Trustee of late Mahesh, taken over the possession of A schedule property. The defendant no.7, requested the plaintiff to allow her to stay in the house to enable her to perform pooja on the 10th day and to carry out certain other rituals, the plaintiff agreed for the same. The plaintiff issued letter dated 21.12.2012, to the Secunderabad Cantonment
Board, for mutation in respect of Aschedule property. Similarly, issued letter dated 23.12.12, to the Revenue Officer, Bangalore, informing about the demise of Mahesh and requested him for mutation in respect of B schedule property. Thereafter, the plaintiff addressed a letter dated 29.12.12, to all the beneficiaries under the Will and to defendant no.12, who is cousin of Mahesh. The Bschedule house was let out to defendant no.11, by Mahesh and her mother. The said tenant paid rents till October, 2012, as such, the plaintiff issued a notice dated 01.02.2013, to defendant no.11, terminating his tenancy and to deliver vacant possession of B schedule property to the plaintiff. Having received the same, defendant no.11, got issued a reply notice dated 01.03.2013, by setting up a false case of oral lease and questioning the Will for which, the plaintiff issued reply dated 11.3.13, explaining the correct facts. The defendant no.7, got issued a notice dated 16.2.13, through her Advocate setting up alleged Will
dated 07.03.12, and alleged that the Will in question is fabricated and
9OS.No.538 of 2013 forged to usurp the valuable property of late Mahesh. The same cannot be accepted. The plaintiff sent a detailed reply on 25.2.13, to the counsel for defendant no.7, the same was returned as unserved with an endorsement “not claimed” as such, the plaintiff sent a letter dated 27.3.2013, to defendant no.7, at Sainikpuri. No reply received from defendant no.7, by the plaintiff. The plaintiff sent a reminder on 22.3.13, to the Revenue
Officer, Bangalore, for mutation and also to the Secunderabad
Cantonment Board on 21.12.12. The said reminders were served but there was no response. In the last week of March, 2017, when the plaintiff went to the Secunderabad Cantonment Board, the officials informed that defendants 7 and 13 have also applied for mutation in their favour by showing a Will dated 07.03.2012. Then the plaintiff filed his objections
dated 9.04.13, to the CEO., Secunderabad Cantonment Board. The
contents of the Will dated 07.03.2012 are false and fabricated and same is rank forgery. The defendant no.7, taking advantage of the fact that the plaintiff has allowed her to stay in Aschedule house has prevented defendant no.1 and her family members from interfering into the house and that defendant no.7, and her son have emptied the entire Aschedule house by removing all the articles and kept the premises under lock and key. Inspite of repeated requests, defendant no.7, failed to handover the
Aschedule house and put back all the articles removed by her. Therefore, the plaintiff withdrawn the permission granted to her as such, she is bound to pay the damages for use and occupation of Aschedule house.
6.The Testator A.K.Mahesh, executed a Will in a sound state of mind. In view of last Will dated 11.10.12, executed by the Testator, the alleged will dated 7.3.12, automatically becomes redundant. The defendant 10OS.No.538 of 2013 no.10, accordingly paid a sum of Rs.6,50,000/ to defendants 3, 5 and 6 and balance amount of Rs.3,50,000/ was kept with him for paying the same to the tenant/defendant no.11, who agreed to vacate the Bschedule property. But, the tenant went back since, the Testator passed away. The post dated cheques dated 20.10.2012, and 24.12.12, for Rs.10,00,000/ and Rs.20,00,000/ each could not be encashed as they were issued in the name of Mahesh and he passed away. Inspite of repeated requests, defendant no.10 has not chosen to pay the balance advance sale consideration of Rs.3,50,000/ withheld by him hence, the plaintiff issued a letter dated 21.4.2013. Having received the same, defendant no.10, paid
Rs.3,00,000/ and promised to pay the balance amount of Rs.50,000/ after the suit is filed. The advance sale consideration of Rs.6,50,000/ paid by defendant no.10, was received by defendant no.5 on behalf of GPA
Holder and as per the expenditure list, he is holding Rs.1,59,372/. Inspite of repeated requests, defendant no.5 has not paid the said amount as such, the plaintiff sent a letter dated 22.4.13, to all the three GPA holders.
There was no response from the Secunderabad Cantonment Board, and
Assistant Revenue Officer, Bangalore, about the request of plaintiff for mutation in respect of A and B schedule properties as per Will dated 11.10.2012, he has sent reminders dated 16.9.2013. Hence, this suit.
7.Defendant no.2, filed his written statement by sailing with the plaintiff and sought to decree the suit. Defendants 1, 4, 8 and 9 filed memo stating that they are adopting the written statement filed by defendant no.2.
11OS.No.538 of 2013
8. Defendant no.7, is the contesting defendant filed her written statement. The defendant no.13, filed memo adopting the written statement filed by defendant no.7. Defendant Nos.16 and 17 filed memo stating that they are adopting the written statement filed by defendant no.7.
9.Defendant nos.3, 5, 6, 10 and 12 are remained exparte.
10.The contents in the written statement filed by defendant no.7 are that: The suit is neither maintainable in law nor on facts and that there is no truth in the suit filed by the plaintiff. The plaintiff to knock away the valuable properties of the deceased Mahesh, without being any relationship filed the present suit. The Will projected by the plaintiff is forged, fabricated and created for the purpose to grab the suit schedule property. The alleged appointment of Executor is only to create control over the property left by the deceased Mahesh. Defendants 7 and 13 are cousins of late A.K.Mahesh. The testator A.K.Mahesh, was the absolute owner of suit Aschedule property. The father of Mahesh by name
A.J.Kumaresan, died on 4.12.2007, and late A.K.Mahesh, succeeded A and
B schedule properties under a Registered Will dated 20.06.2007, executed by his father A.J.Kumaresan. Mother of Mahesh, Smt.Parvathi Kumaresan died on 28.11.2011. After demise of his parents late A.K.Mahesh, executed a Will dated 7.3.12, in favour of defendants 7 and 13 and died in the month of October, 2012. Late Mahesh, was learned Advocate and he remained bachelor due to his illhealth and died on 16.10.2012. His parents predeceased him. The defendant no.7, used to take care of his health as he was suffering from several serious ailments. Defendant no.7 and her son Saradhi were living at Sainikpuri, Secunderabad. It is denied 12OS.No.538 of 2013 that defendant no.7, and her son were not in good terms with Mahesh.
The averment that Mahesh became completely normal by 7.10.2012, itself creates a doubt on the alleged execution of Will dated 11.10.2012. It is admitted that General Power of Attorney was executed, the same was
dictated to defendant no.7, which was later got typed and that defendant
no.7, also signed as witness in the said General Power of Attorney. The deceased was not happy with the way the plaintiff and defendants 3, 5 and 6 were dealing with ScheduleB property and there was no requirement to sell it for throw away price. The alleged Will dated 11.10.2012, was not executed by Mahesh. The plaintiff and defendants 1 to 6 might have obtained the signatures of the deceased Mahesh on white papers stating that they are required to give some document or receipt to the proposed purchaser with whom they have entered into agreement with regard to the schedule Bproperty. Defendant no.7, also believes that the signatures on the alleged Will are forged and created. In fact, the way in which the B schedule property was proposed to be sold caused lot of agony to the deceased and that only defendant no.7 and her second son Saradhi, were present in the Hospital when the Testator passed away. The last rites were performed by the son of defendant no.7. Most of the expenditures were borne by defendant no.7, alone being the cousin of the Testator. The A schedule house has been in the custody of defendant no.7, much prior to the death of late Mahesh. Admittedly, the fact of executing the alleged Will
dated 11.10.12, was not to the knowledge of this defendant as such, there
was no reason for defendant no.7, to seek permission from the plaintiff to stay in the house. But, the defendant no.7, was not informed about the alleged Will dated 11.10.12, on 17.10.2012. The reason for not addressing 13OS.No.538 of 2013 the letter about the Will for more than two months is not cogent. The defendant no.7, sent a notice on 16.2.13, narrating the execution of Will
dated 7.3.12, by late Mahesh. The defendants 7 and 13 are close relatives
of A.K.Mahesh, and by the date of execution of the said Will Mahesh, was in a sound state of mind. The attempt of the plaintiff to mutate the property after two months of death of A.K.Mahesh, itself shows the falsity of the Will. The Will dated 7.3.12, by late Mahesh, is within the knowledge of the plaintiff. The defendant no.7, is in possession and enjoyment of A schedule property. The plaintiff has no right to withdraw anything as he never gave any permission. A.K.Mahesh, died as a bachelor leaving behind him a Will dt: 7.3.12, executed in favour of defendants 7 and 13. The alleged cause of action is imaginary. The defendants 7 and 13 being close relatives of A.K.Mahesh, are entitled for all the assets left over by the deceased by virtue of a Will dated 7.3.12. Thus, the plaintiff is not entitled for any relief as claimed by him. The signatures existing on the alleged
Will dated 11.10.12, do not belong to A.K.Mahesh, and the signatures existing on the General Power of Attorney are different when compared with the signatures existing on the alleged Will dated 11.10.12, The said
Will could have been executed before the Doctor in the Hospital to give authenticity to it. The defendant no.13, filed a suit against the plaintiff, defendant Nos.3, 5, 7, 10 and 11 for partition and the same is pending
before the Hon’ble Additional Court at Bangalore, hence sought for
dismissal of the suit with exemplary costs.
11.Defendant no.11, filed written statement contending that the suit is neither maintainable in law nor on facts and is liable to be dismissed and that the plaintiff has not sought any relief against 14OS.No.538 of 2013 defendant no.11, hence, sought for dismissal of the suit against defendant no.11.
12.Basing on the above pleadings, the court framed the following issues on 19.02.2015:
1. Whether the Will dated 07.03.2012, is genuine?
2. Whether the plaintiff is entitled for the relief of Declaration as sought for by him?
3. To what relief?
13.During the pendency of the suit, defendant no.7, died, defendants 16 and 17 are impleaded as per the orders in IA.No.45/2016 in
OS.No.538/13, dt.20.12.2016, and thereafter the following Additional
Issues are framed on 26.04.2017.
1. Whether the plaintiff can be declared as the Executor and Trustee of the estate of late Sri.Arcot Kumaresan Mahesh?
2. Whether the plaintiff is entitled for ejectment of defendants 16 and 17 who are the legal heirs of defendant no.7, from the “A” schedule property?
3. Whether the plaintiff is entitled for mandatory injunction against the defendants 16 and 17 who are the legal heirs of defendant no.7. by removing from the “A” schedule property bearing H.No.39, R & D Colony, Defence Enclave, Sikh Village, Secunderabad?
4. Whether the plaintiff is entitled for damages at the tune of Rs.15,000/ per month for “A” schedule property till defendants 16 and 17 vacates it and hand over the vacant possession to the plaintiff?
5. Any other relief which the plaintiff is entitled for?
14.During the course of Trial, on behalf of the plaintiff, PWs 1 to 3 were examined and Exs.A1 to A47 were marked; Ex.C1 and Ex.C2 were 15OS.No.538 of 2013 marked through PW3. On behalf of the defendants, DWs 1 and 2 were examined and no documents were marked.
15.Heard the arguments of both the learned counsels.
Considered the citations submitted by both the learned counsels.
16.The admitted facts are that:
1. Sri.Arcot Kumaresan Mahesh, was an Advocate having experience of more than 10 years. He died on 16.10.2012. His parents predeceased him ie., father of A.K.Mahesh A.J.Kumaresan, died on 04.12.2007 and mother Smt.Parvathi Kumaresan, died on 28.11.2011. Late A.K.Mahesh, is unmarried and issueless. The plaintiff has filed Death Certificate of late Mahesh under Ex.A4;
Death report under Ex.A42 and burial ground report under Ex.A43.
2. It is not in dispute that the deceased Mahesh, was the Junior
Advocate of Sri.Keerthi Prabhakar, Advocate. Defendant no.2 is the son of Sri.Keerthi Prabhakar, Advocate.
3. The defendants 7 and 13 are the cousins of late Mahesh, ie., their mother is elder sister of Mahesh’s mother late Smt.Parvathi
Kumaresan.
4. It is not in dispute that late Mahesh, was the absolute owner of suit “A” and “B” schedule properties, who bequeathed the same under a registered Will dated 20.6.2007, executed by his father
A.J.Kumaresan. The Bschedule property was mutated in the name of late Mahesh, evidencing the same the plaintiff has filed Exs.A2 and A3.
16OS.No.538 of 2013
5. During the life time of late Mahesh, he used to reside in the suit A schedule property situated at Sikh Village, Secunderabad.
6. The Bschedule property is situate at Bangalore.
7. It is admitted by the contesting defendant no.7, that late Mahesh executed General Power of Attorney under Ex.A47, at Oxygen
Hospital, in favour of defendants 3, 5 and 6.
8. Suit filed for partition and separate possession by defendant no.13 is pending before the Hon’ble Additional Court at Bangalore.
ISSUE NO.2 AND ADDITIONAL ISSUE NO.1:
17.To prove his case, the plaintiff has filed IA.No.1207/14, in
OS.No.538/2013, to issue summons to the attestor so as to give evidence
and the same was allowed on 02.02.2015. R.Venkat Reddy who is one of the attestor of Ex.A1, filed his chief affidavit as PW1 by stating that he knows Mahesh, Advocate, Testator of Ex.A1 for more than 12 years and he was working as a Railway Contractor of South Central Railways and due to his old age ailment, he discontinued the contract works since 20022003 onwards and that Late Mahesh, Advocate used to help him in drafting letters, notices etc., in his contract works and he has also entrusted some cases to him and that he visited the house of Mahesh at Sikh Village, for several times. It is further stated by PW1 in his chief affidavit that on the night of 27.09.2012, the plaintiff informed him over phone that Late
Mahesh, fell down in the bathroom and has been admitted in the ICU of
Oxygen Hospital, Vikrampuri, Secunderabad for treatment and that on the next day, he went to the Hospital and enquired about the health of 17OS.No.538 of 2013
Mahesh, who recovered and was shifted to a room of the Hospital on 06.10.12 and that on 07.10.12, Mahesh was looking quite normal and that on the night of 10.10.2012, the plaintiff informed him over phone that
Mahesh, desired to execute a Will in the Hospital and had requested him and P.T.Rao, to come to the Hospital on the evening of 11.10.12. It is further stated that on the evening of 11.10.12 all three of them went to
Room No.406 of the Hospital, and spoke to Mahesh and then Mahesh informed them about the Will and read over and explained the Will to both of them and that Mahesh was in sound state of mind and then Mahesh, signed the Will in their presence and in the presence of the plaintiff and then himself and P.T.Rao, as witnesses have signed in the said Will. PW1 exhibited Ex.A1, dated 11.10.2012, executed by Mahesh (marked subject to objection raised by the counsel for defendant no.7, as to the genuineness).
18.During crossexamination of PW1 by the learned counsel for defendant no.7, PW1 deposed that he does not know as to which major ailment Mahesh was suffering and which is the cause of death of late
Mahesh and that he had been in continuous touch with late Mahesh until his demise and that he came to know from the plaintiff that late Mahesh, was hospitalized and he went to the Hospital in the evening hours and met late Mahesh, who was in ICU and on his enquiry, late Mahesh told him that he fell down at house as such, he was brought to the Hospital and that about one week thereafter, late Mahesh, was shifted from ICU to regular room in the Hospital and that he did not observe the presence of ladies near Mahesh at the Hospital among the friends and relatives and that late Mahesh told him that he has got property at Bangalore and 18OS.No.538 of 2013
Hyderabad, and that since his financial position was not good, he may have to dispose of his property. PW1 further deposed that, late Mahesh, read over the contents of the entire Will to him and that he only remember late Mahesh saying that he was bequeathing his property to the servant, for charity and to his friends and relatives. The testimony of PW1 discloses that, one day prior to the date of execution of Will, plaintiff informed him through phone that late Mahesh wanted to execute a Will and late Mahesh wanted him to be present on the following date and accordingly he went to the Hospital on 11th October, in the evening. PW1 further deposed that P.T.Rao used to meet Mahesh, now and then and that by the time of his visit to late Mahesh’s room, the Will was in possession of
Late Mahesh, which was in typing form and that the said document was prepared on both sides of the paper and then he put only one signature in the Will at the space earmarked for witness and that P.T.Rao, first signed as witness in the Will and thereafter he signed therein and that late
Mahesh, read over the contents of the document to them, then they put their signatures in his presence and in their presence late Mahesh, puts his signature on the last page of the Will. PW1 denied the suggestion that he does not know any facts of the case and that he is deposing false at the instance of Sri. Keerthi Prabhakar.
19.Later, the plaintiff himself filed his chief affidavit as PW2, and he exhibited Exs.A2 to A46. Out of which Exs.A5 and A6 are the letters addressed by the plaintiff to the authorities in respect of A and B schedule properties for mutation; Exs.A28 and A29 are the reminders issued by the plaintiff to the authorities for mutation. Ex.A7 is the Letter got issued by the plaintiff to the defendants 1 to 9 and 12 informing them about Ex.A1 19OS.No.538 of 2013
Will. Exs.A8 to A18 are the acknowledgments of defendants, letters etc;
Ex.A19 is the letter addressed to defendant no.11, demanding him to vacate from the suit Bschedule property; Ex.A20 is the reply notice given by defendant no.11, questioning Ex.A1 Will; Ex.A21 is the reply by the plaintiff to Ex.A20 by objecting the contents under Ex.A20; Ex.A22 is its acknowledgment; Ex.A23 is the reply by defendant no.7 for Ex.A6 from
Bangalore by contending that the Will dated 11.10.12, is fabricated to grab the properties of late Mahesh and further mentioned that late Mahesh, executed a Will dated 7.3.12, in her favour and in favour of defendant no.13; Ex.A24 is the office copy of reply given by the plaintiff to Ex.A23, to the counsel for defendant no.7, stating that defendant no.7, had set up a
Will belatedly; Ex.A25 is the returned postal cover; Ex.A26 is the copy of reply sent to defendant no.7, by the plaintiff; Ex.A27 is its acknowledgment; Ex.A30 is the letter issued by the Secunderabad
Cantonment Board to the plaintiff by issuing copies of documents submitted by defendant Nos.7 and 13; Ex.A31 is the copy of Letter by the defendants 7 to 13, to the Cantonment Board, Secunderabad; Ex.A32 is the copy of Will dated 7.3.12; Ex.A33 is the copy of property tax receipt;
Ex.A34 is the public notice issued by way of paper publication by defendants 7 and 13 on 01.02.2013; Ex.A35 and A36 are the original cheques for Rs.10,00,000/ and Rs.20,00,000/, in the name of late
Mahesh, issued by defendant no.10; Ex.A37 is the letter issued by the plaintiff to defendant no.10 to send Demand Draft for Rs.3,50,000/ to enable him to file suit; Ex.A38 is its postal receipt; Ex.A39 is the letter by the plaintiff to defendant Nos.3, 5 and 6 to return the balance money;
Ex.A40 is the postal receipt; Ex.A41 is the reply given by defendant no.3; 20OS.No.538 of 2013
Ex.A44 is the final bill given by the Oxygen Hospital on 16.10.2012;
Ex.A45 is the mail from defendant no.12 on 25.10.2012.
20.During crossexamination PW2 deposed that, he came to know through defendant no.1 that late Mahesh, fell down due to slip in the morning hours of 27.09.2012. PW2 admitted that, Mahesh was normal at the Hospital from the next day of his admission into the Hospital. PW2 deposed that, Mahesh was continued in the ICU for 10 days as he was suffering with breathing problem. PW2 denied the suggestion that
Mahesh, was having financial source of Rs.1,50,000/ by that date. PW2 admitted that they being friends of Mahesh, and being practicing
Advocates have no difficulty in arranging Rs.1,50,000/ to the medical expenses of Mahesh and that by 5.10.2012, Doctors did not advise for
Dialysis of alternate days to Mahesh. PW2 further admitted that, the deceased Mahesh was not feeling well as such, he was continued in the
ICU of Oxygen Hospital, Vikrampuri, Secunderabad, till 6.10.12. Copy of
General Power of Attorney dated 5.10.2012, is marked as Ex.A47 on confrontation and on admission of PW2.
21.PW2 admitted that, defendant no.3, is the junior Advocate of deceased Mahesh and that the monthly dialysis charges will not be more than Rs.2,00,000/ and that PW1 is their office client so also client of late
Mahesh and that the second attestor of Ex.A1 was the typist of deceased
Mahesh. PW2 further deposed that, he got Ex.A1 prepared in the computer on the Letter head of deceased Mahesh and Ex.A1 is on the single page (front and back). PW2 denied the suggestion that, he did not prepare
Ex.A1 Will as such, he does not know about the same and that he is deposing false. PW2 testifies that Ex.A1 was executed on 11.10.12, in 21OS.No.538 of 2013 between 6:00 p.m to 6:30 p.m., and that he took Ex.A1, to the deceased
Mahesh to the Hospital on 11.10.12, and that he met the attesting witnesses at the reception of Oxygen Hospital. PW2 further admitted that the deceased Mahesh was not happy on 10.10.12 for selling of property at
Bangalore, for less price. PW2 denied the suggestion that Ex.A1 is fabricated document and that the signatures present on Ex.A1 are not belong to the deceased Mahesh, and that PW1 and P.T.Rao did not visit the Hospital on 11.10.12 and that they never signed on Ex.A1 and that he obtained signatures of PW1 and P.T.Rao, at his office and is deposing false.
22. PW2 specifically deposed that the deceased Mahesh read over the contents of Ex.A1 Will and explained to PW1 and P.T.Rao. PW2 denied the suggestion that there was no occasion to execute Ex.A1 Will in favour of beneficiaries as Mahesh was fed up with the acts of defendants 3, 5 and 6 and that on 12.10.12, Mahesh was not in cheerful mood. PW2 admitted that the medical expenditure and funeral expenses were incurred out of advance amount taken and that the amount given to defendant no.7 for expenditure of Rs.20,000/ was also out of the said advance amount and that nobody spent any amounts for the medical expenses and funeral expenses of Mahesh. PW2 denied that suggestion that defendant no.7 shown the Will dated 7.3.12 executed by Mahesh in her favour and in favour of defendant no.13 and taken possession of Aschedule property situated at Sikh Village. PW2 further admitted that he did not produce
Ex.A1 Will during 10th and 11th day ceremony of late Mahesh. PW2 denied the suggestion that, he created Ex.A1 Will with an intention to grab the property of Mahesh and that there was no occasion to draft Ex.A1 Will as defendant no.7 was continuously available at the Hospital and that 22OS.No.538 of 2013 defendants 7 and 13 are the original owners in respect of schedule A and
B properties by virtue of Will dated 7.3.12, and that Ex.A1 Will is forged and fabricated and that the documents relied by the plaintiff including the medical records are false and that Ex.A1 Will is not valid and that he is deposing false.
23.Later, the plaintiff has filed a petition under Order 16 Rule 1 of
CPC., to issue summons to Sri Keerthi Prabhakar, Advocate, to produce the documents in respect of suit Aschedule property, the same was allowed on 16.7.18. On receipt of summons, Sri Keerthi Prabhakar,
Advocate, is examined as PW3 and in his chief examination he stated that, he has been practicing as an Advocate for the last 38 years and he knows
Late Mahesh, even prior to his enrollment as Advocate and that late
Mahesh, practiced as his Junior Advocate for six years; thereafter also he used to come to his office to take advise in his personal cases and that he visited the house of Kumaresan (father of late Mahesh) for several times and they were like family friends and that the reason for deposit of Exs.C1 and C2 with him was that his father and mother predeceased him and that he was on medication by that time, because of his obesity and that he was very perfect in respect of his mental health and that prior to 10 days of his death, late Mahesh was admitted in Oxygen Hospital and that his son,
PW2 and defendant no.4 were admitted Mahesh in Oxygen Hospital. PW3 exhibited Ex.C1, Original Registered Sale Deed dt:13.12.1987 along with
Plan and Layout and Ex.C2, Original certificate issued by the Corporation of the city of Bangalore, dt.20.07.1987. During crossexamination PW3 denied the suggestion that defendant no.7 used to take care of deceased
Mahesh, at the Hospital prior to his death and that he is deposing false.
23OS.No.538 of 2013
24.After closure of plaintiff’s evidence, the son of defendant no.7, who is defendant no.17, filed his chief affidavit as DW1. During cross examination DW1 pleaded ignorance about the brothers of father of
Mahesh and cousins of Mahesh on his father’s side. He also pleaded ignorance about the professional friends and friends of late Mahesh and that whether he has any personal knowledge about the written statement filed by defendant no.7 and that Mahesh appointed defendant Nos.3, 5 and 6 as his attorneys to dispose of Bschedule property. DW1 deposed that he has no idea whether in pursuance of Ex.A47, defendant Nos.3, 5 and 6 executed an Agreement of Sale with regard to Bschedule property. DW1 admitted that the expenses of the hospital were met out of the amount received towards advance sale consideration in respect of B schedule property. DW1 deposed that Mahesh's father and Sri.Keerthi Prabhakar,
Advocate were friends and that he is aware that Mahesh was suffering from various ailments during his life time and after the death of mother of
Mahesh, he became lonely and defendant no.1 was domestic servant of
Mahesh, at his home and that after death of Mahesh's parents, he received a phone call from defendants 1 and 4 about illhealth of Mahesh and that his mother told him that on 27.9.12, that Mahesh fell down and sustained injury. DW1 admitted that, he came to know that Mahesh was rushed to
BBR Hospital and thereafter referred to Apollo Hospital and then admitted in Oxygen Hospital at Secunderabad. DW1 further deposed that, Mahesh had kidney problem when he admitted in the Hospital. DW1 further admitted that on 6.10.2012, Mahesh recovered from the ailment and he shifted to room No.406, and that on 7.10.2012, Dr.Archana, recorded in her report that Mahesh, can be discharged but he needs Dialysis support 24OS.No.538 of 2013 alternatively on Out Patient basis and that defendant no.7, informed him that Mahesh intends to dispose of his property at Bangalore and that the other cousins of Mahesh did not attend the funerals of Mahesh. DW1 pleaded ignorance that on 17.10.2012, the plaintiff has handed over the keys of the suit Aschedule property to his mother/defendant no.7, to perform rituals and that since Mahesh has no funds to meet his medical bills as such, he executed Ex.A47, General Power of Attorney to sell B schedule property and that whether the total medical bills at Oxygen
Hospital was Rs.3,99,381/ and that who paid the medical bills at Oxygen
Hospital. DW1 testifies that he has not seen the Will executed by late
Mahesh, prior to execution of Ex.A1 and that he does not know whether his mother ie., defendant no.7, pleaded in her written statement about the
Will executed by Mahesh, which is with defendant no.13 and that he cannot commit whether the said Will is registered or unregistered and that he cannot say whether the said Will is with defendant no.7 or defendant no.13, and that he does not remember whether he has got any personal knowledge with regard to any other Will other than Ex.A1 and that at present the suit Aschedule property let out to tenant and he does not know the rent that has been paying by the tenant. DW1 denied the suggestion that Aschedule property would fetch Rs.15,000/ towards rent by the date of filing of the suit.
25.The defendant no.13, filed his chief affidavit as DW2. During crossexamination, DW2 admitted that he was not present on the date of
Mahesh's funerals. DW2 deposed that defendant no.7 informed him that prior to death of Mahesh that he was serious. DW2 deposed that Mahesh treated for Kidney problem at the Hospital and that he did not visit 25OS.No.538 of 2013
Mahesh during the period of his Hospitalization. DW2 deposed on verification of Ex.A1, that the signature on it could be of Mahesh. DW2 admitted that, basing on the General Power of Attorney, Mahesh friends executed an Agreement of sale with defendant no.10 in respect of suit B schedule property. DW2 further admitted that Mahesh trusted his friends and executed Ex.A47, to dispose of the property at Bangalore, inspite of the fact that he is the resident of Bangalore. DW2 admitted that he did not attend the funeral of mother of Mahesh, and he voluntarily says that he attended the 10th day ceremony of mother of Mahesh. He denied the suggestion that Ex.A1 Will is the last testament of Mahesh in a sound state of mind bequeathing the suit schedule A and B properties in the presence of witnesses.
26.On perusal of Ex.A1 Will, the testator Mahesh has mentioned that he has admitted in the Oxygen Hospital and undergone treatment and it was confirmed that both of his Kidneys have failed; since, huge amount is required for his treatment, he has decided to dispose of his
Bangalore property and entrusted the said job to his friends by executing a
General Power of Attorney dated 5.10.2012. The testator further mentioned under Ex.A1 that his health condition improved and he was shifted to a room from ICU on 6.10.12, and anyhow he has become a confirmed patient due to kidney failure, he has decided to execute a Will out of his free will without any coherence or compulsion from anybody.
The testator further mentioned that defendant no.1, is his house keeper; defendant no.3 is an Advocate, has been helping him as junior; defendant no.2, who is his senior’s son, who has been of great help to him for more than 10 years; defendant no.4, is his Guru, in legal field since his father’s 26OS.No.538 of 2013 time; his two friends defendant Nos.5 and 6 were of much help to him during the period of his hospitalization and helping him in disposing off his Bangalore property; his cousin defendant no.12, is settled in USA and he does not need any financial help; his cousin defendant no.7 was not of any help to him, yet he decided to give a share along with his other two cousins defendants 8 and 9; he also decided to donate a portion of his assets for charity to be decided by his Executor and Trustee(plaintiff herein), who would arrange to execute necessary sale deeds in respect of both A & B schedule properties.
27.During the course of oral arguments, the learned counsel for the defendants 7, 16 and 17 contended that, his legal objection is that the present suit is not maintainable either in law or on facts and that mandatory injunction is not the proper relief and plaintiff cannot seek such relief; admittedly, defendant no.7 is in physical possession of suit A schedule property; If at all, the plaintiff wants the possession of the suit schedule Aproperty, he ought to have file a suit for recovery of possession.
For which, this court opines that the suit filed by the plaintiff by paying the Court Fee for the relief of declaration as Executor and Trustee under
Ex.A1 Will and Mandatory Injunction against defendant no.7 is maintainable.
28.It is further contended by the learned counsel for defendant nos.7, 16 and 17 that defendant nos.7 and 13 are cousins of late Mahesh and claiming rights over suit “A” and “B” schedule properties by virtue of
Will dated 07.03.2012 and that the burden of proof is on the plaintiff to prove his Will, but he cannot rely on the weaknesses of the defendants as held in a decision reported in (2014) 2 Supreme Court Cases 269, 27OS.No.538 of 2013 between Union of India and Others Vs. Vasavi Cooperative Housing
Society Limited and others, wherein it was held that: “In the absence of establishment of its own title, the plaintiff must be nonsuited even if title set up by defendants is found against them. Weakness of case set up by defendants cannot be a ground to grant relief to plaintiff”.
This court is in agreement with the purport of the above decision that in a suit for declaration of title, the plaintiff has to prove his case on his own strength but he cannot depend upon the weaknesses of the defendants.
29.It is further contended by the learned counsel for the defendant Nos.7, 16 and 17 that, Ex.A1 Will dated 11.10.2012 is fabricated and shrouded with suspicious circumstances and that the plaintiff has created the same in collusion with defendants 1 to 6 taking advantage of the acquaintance with the deceased Mahesh and that according to the plaintiff, Ex.A1 was executed when the deceased Mahesh, was at Hospital as such, simple execution of Ex.A1 is not sufficient and there must be higher degree of evidence is required with regard to proof of
Will that whether there was real situation for the deceased to execute
Ex.A1; whether alleged Will executed by Mahesh; whether Mahesh was in a position to execute Ex.A1 and that whether the execution of Ex.A1 was voluntary without undue influence. In support of the said contention of defendants, the learned counsel has submitted a decision reported in AIR 2015 (SC) 2382, between Dhannulal and others Vs. Ganeshram and another, wherein it was held that: 28OS.No.538 of 2013 “Proof of a Will stands in a higher degree in comparison to other document. There must be a clear evidence of the attesting witnesses or other witnesses that the contents of the Will were read over to the executant and he after admitting the same to be correct, puts his signature in presence of the witnesses. It is only after the executant puts his signatures, the attesting witnesses shall put their signatures in the presence of the executant”.
By relying on the above decision it should be agreed that there must be a clear evidence of attesting witnesses with regard to execution of Will by any one of the attestor as contemplated under Section 68 of Indian
Evidence Act.
30.It is the further contention of the learned counsel for defendant Nos.7, 16 and 17 that, the original of Ex.A47, was dictated to defendant no.7, which contain the signatures as well as thumb impressions of late Mahesh and why Mahesh was not informed about the execution of Ex.A1 Will to defendant no.7 and was not put his thumb impressions on Ex.A1; in that regard, there is no cogent adduced by the plaintiff. On considering the said contention of the learned counsel for the defendants, the fact that late Mahesh not put his thumb impressions on
Ex.A1 Will, whereas Ex.A47 contains the same is not creating any doubt with regard to genuineness of Ex.A1 Will. Since defendant no.7 is also one of the beneficiaries under Ex.A1 Will, for that reason, the execution of the will might not informed to her by the Testator.
31.It is further argued by the learned counsel for the defendants 7, 16 and 17, that the signatures of late Mahesh, on Ex.A1 can be compared as per provision 73 of Indian Evidence Act, and that the plaintiff 29OS.No.538 of 2013 has not taken any specific steps to prove Ex.A1, Will except examining one of the attestor as PW1, who deposed that he is the client of Mahesh, and that he does not know who is P.T.Rao, whereas PW2 says that P.T.Rao, is no other than the Typist of Mahesh, and that there are several discrepancies in the veracity of the evidence of PWs.1 and 2 which are fatal to the suit which establish the fact that Ex.A1, is a created document to grab the valuable properties of late Mahesh; further, the suspicious circumstance is that, Ex.A1 Will was not brought on the 10th day ceremony of Mahesh, to show it's genuineness. This court on a comparison of the disputed signatures of late Mahesh, available on Ex.A1, with his admitted signatures available on Ex.A47 General Power of Attorney, which would show that they are similar in all respects consisting of all peculiarities, the said signatures would contain and therefore the Ex.A1 will was signed by late Mahesh only. Nothing was elicited by the learned counsel for the contesting defendants that there is discrepancy in the evidence of PWs 1 and 2 which cuts the root of the case. There are minor discrepancies in the evidence of PWs. 1 and 2 as to the number of pages, the Ex.A1 Will contain and the same may be due to time gap. But, in so far as the discrepancies are concerned, the evidence of PWs 1 and 2 is corroborating with each other and therefore this court considers the alleged discrepancies are only minor and it would not lead any conclusion that execution of Ex.A1 had not taken place and that Ex.A1 Will is fabricated and created.
32.The learned counsel for the plaintiff has submitted the following decisions: i.In 2009 LawSuit (AP) 729, between Pushpa Charles Vs. Michael
Nicholas and Others, wherein it was held that: 30OS.No.538 of 2013 “Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence. Since, it is required to be attested, as provided in Section 68 of Indian Evidence Act, 1872, it cannot be used as called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus, which rests on the propounder, is discharged. But, where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden of proof that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.
The execution of the Will may be surrounded by suspicious circumstances like,
a) The signature of the testator may be very shaky and doubtful or not appears to be his usual signature.
b) The condition of the testator’s mind may be very feeble and debilitated.
c) The dispositions made in the Will may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provision for the natural heirs without reasons.
d) The dispositions may not appear to be the result of the testator’s free will and mind.
e) The propounder takes a prominent part in the execution of the Will conferring substantial benefit on him.
f) The Testator used to sign blank papers.
g) The Will did not see the light of the day or long.
h) Incorrect recitals of essential facts.
i) The unregistered Will challenged as forged comes from the custody of major beneficiary.
31OS.No.538 of 2013
The gist of the above decision is that Will is a compulsorily attestable document, the proof of execution of a Will must be in consonance with Sections 68 and 69 of Indian Evidence Act, the execution of a will be proved by calling one of the attesting witness before the court, the attestor must prove that the testator of the Will knows and understands the contents of the Will and he saw the executant signing having known the contents of the Will. This court accepts the proposition laid in the above said decision.
33.In the present suit, PW2 stated that he was present at the time of execution of Ex.A1 Will by late Mahesh in a sound and disposing state of mind. PW1 deposed in his chief affidavit as well as during his cross examination that deceased Mahesh himself read over the contents of Ex.A1 to them. There is no suggestion given by the learned counsel for the contesting defendants that the deceased Mahesh was not keeping good health as such late Mahesh read over the contents of Ex.A1 is false and that the plaintiff obtained the signatures of Mahesh on blank papers by representing that they are necessary to sell Bschedule property at
Bangalore and fabricated Ex.A1 Will. Further, it was suggested by the learned counsel for the contesting defendants that Ex.A1 Will was created at the instance of Sri.Keerthi Prabhakar. To consider the said suggestion as true, the said Sri Keerthi Prabhakar, is not a beneficiary under Ex.A1
Will. Further, the learned counsel for the contesting defendants cross examined PW2 on the aspect of the General Power of Attorney / Ex.A47 (at
Pages 7 and 8 of deposition of PW2), the same is of no use, since, the contesting defendant no.7, admitted about the execution of original of
Ex.A47 by late Mahesh on 5.10.2012.
32OS.No.538 of 2013
34.There is no suggestion given by the learned counsel for defendant Nos.7, 16 and 17 to PW3 that Mahesh was not mentally sound prior to his death. From the said testimony of DW2, it is clear that he even did not visit Mahesh, while he was undergoing treatment at the
Oxygen Hospital which probablise the fact that he did not spent a single pie for the medical expenses of late Mahesh. Further, the evidence of DW1 is also clear that his mother did not spent any expenditure towards medical bills at Oxygen Hospital. Under Ex.A1, deceased Mahesh has mentioned that his cousin Gajalakshmi was not of any help to him at all and yet he has decided to give her also a share along with his two cousins
Giri and Akila. He also decided to donate a portion of his assets for charity to be vested by his trustee S.Amarender Reddy, Advocate, Hyderabad. At page no.2 of Ex.A1, the deceased Mahesh has mentioned that it is last
Will in a sound disposing state of mind executed on 11.10.2012, in the presence of all being present at the same time. There is no dispute with regard to the details and descriptive particulars mentioned under Ex.A1, with regard to suit schedule “A “ and “B” properties.
35.It is not the case of the learned counsel for contesting defendants that Mahesh was at ICU by 11.10.2012, as such, the presence of attestors and the plaintiff on 11.10.12 at Oxygen Hospital in ICU can not be believed. Nothing was elicited by the defendants counsel during cross examination of PWs. 1 and 2 to disbelieve the Ex.A1 Will. PWs 1 and 2 denied the suggestion that Ex.A1 Will is fabricated and created to grab the properties of late Mahesh. The plaintiff is able to establish that Ex.A1
Will was executed by the testator in a sound and disposing state of mind and in the manner required under Section 63 of Indian Succession Act. It 33OS.No.538 of 2013 is also established that Ex.A1 Will is not surrounded with suspicious circumstances, since the plaintiff is not a beneficiary under Ex.A1.
Further, the evidence on record is clear that late Mahesh, is having good relationship with his friends more than his relatives such as defendants 7 and 13. If at all the case of the plaintiff is not true, he cannot file such a voluminous documentary proof to substantiate his pleadings in the plaint.
It is not the case of the defendants that late Mahesh, was so weak and was not in a position even to put his signatures, in such case, he would not be in a position to execute Ex.A1 Will in a sound and disposing state of mind.
36.Further, PW3 who received summons from the court has filed
Ex.C1 original registered sale deed dated 13.12.1987, vide
Doc.No.56/1988, which is in respect of ScheduleA property along with
Plan and Layout; Ex.C2 is the original Certificate issued by the
Corporation, City Bangalore, dated 20.07.1987, which is in respect of scheduleB property. The Ex.C1 and Ex.C2 are original documents with regard to suit schedule A and B properties, which shows that late Mahesh had confidence on his senior Advocate Sri.Keerthi Prabhakar. It can also infer that Late Mahesh had no confidence on his cousins Defendant Nos. 7 and 13.
37.The learned counsel for the plaintiff submitted that since the deceased Mahesh executed Ex.A1 Will at Secunderabad in respect of A schedule property, situated at Secunderabad and Bschedule property situated at Bangalore, and that in the said Will, the plaintiff is appointed as an Executor and Trustee of the deceased Mahesh to carry out the directions in the said will, as such this court is having jurisdiction.
Further, to prove that late Mahesh was in mental state of mind while he 34OS.No.538 of 2013 was at Oxygen Hospital, this circumstance is clear that, admittedly late
Mahesh, gave dictation to prepare original of Ex.A47 to defendant no.7, in which he intends to sell Bschedule property and gave GPA infavour of his friends defendant Nos.3, 5 and 6. Further, Late Mahesh executed original of Ex.A47, in favour of defendant Nos.3, 5 and 6, but not in favour of defendant no.13/DW2, cousin of late Mahesh who admittedly, is residing at Bangalore. The said fact shows the strained relationship between the deceased Mahesh and defendant no.13. The testimony of DW2 is also clear that he did not visit the deceased Mahesh, during the period of his hospitalization and funerals of late Mahesh. Even to consider that late
Mahesh had no mental state of mind while he was at Hospital, he cannot give dictation to defendant no.7, to prepare the original of Ex.A47. The evidence on record is clear that either the defendant no.7 or DW1 or DW2, did not even spend a single pie or come forward to pay the Hospital medical bills of deceased Mahesh. The oral evidence on record ie., the evidence of PW1 being the attestor and PW2 being the Executor and
Trustee of Ex.A1 is direct in nature which shows that Mahesh, was in sound state of mind while executing Ex.A1 Will. It is suggested by the learned counsel for the contesting defendants that the deceased Mahesh, was upset on 10.10.2012 itself and he was not in a position to dictate the
Will as he was not happy for selling the property at Bangalore for less price. The evidence on record is clear that the medical expenses under
Ex.A44 and last rites of late Mahesh, was paid and performed only out of advance sale consideration received by defendants 3, 5 and 6 from the
Agreement holder defendant no.10. It is clear from the record that 35OS.No.538 of 2013 defendant no.13, did not give any reply for Ex.A7 letter got issued by the plaintiff.
38.It is pertinent to note that the adoption memo's filed by defendant nos.13, 16 and 17 were signed by their counsel, but there is no verification of pleadings and signatures of the parties.
39.It is submitted by the learned counsel for the plaintiff that the evidence of PWs 1 and 2 is consistent with regard to execution of Ex.A1
Will and the testator was in sound state of mind who himself read over the contents and explained the same to the attesting witnesses and then he put his signature and that there is no suggestion given to PW1 that Ex.A1 is forged and that Ex.A1 Will is shrouded with suspicious circumstances.
On clear observation of Ex.A1 will there are several beneficiaries, as such, the execution of Ex.A1 Will by the Testator is not surrounded with any suspicious circumstances and the same is proved by PWs 1 and 2. Hence, it can be concluded that Ex.A1 Will is true, valid and genuine. Therefore, the plaintiff is entitled for declaration that “as the Executor and Trustee of estate of deceased Mahesh, appointed under Ex.A1 Will executed by
Mahesh, and to carry out the directions of the Testator under the Will in respect of suit schedule “A” and “B” properties. Thus, the issue No.2 and
Additional Issue No.1 is answered in favour of the plaintiff.
Issue No. 1:
40.The Issue No.1 is framed whether the Will dated 07.03.2012, is genuine. It is the duty of both the sides to prove their respective contentions. But, the defendants did not choose to file the original Will
dated 07.03.2012 for the reasons best known to them. However, the
plaintiff got marked the copy of the Will dated 07.03.2012, as Ex.A32.
36OS.No.538 of 2013
There is no oral or documentary evidence with regard to Will
dt: 07.03.2012 by the defendants. Therefore this court concludes that the
defendants did not choose to prove execution of Original of Ex.A32 Will.
Hence the issue No.1 is answered negatively by this court.
Additional Issue Nos.2 and 3:
41.It is pleaded by the plaintiff that he permitted defendant no.7, into the suit schedule Aproperty to enable her to perform pooja of the 10th day ceremony of Late Mahesh on the request of defendant no.7, that she may be allowed to stay in the house for performing poojas and lighting the oil lamps during nights till the first death anniversary of late Mahesh and later defendant no.7 not allowed defendant no.1 and her family members entering into the house and thereafter defendant no.7 and her son emptied the Aschedule property by removing all the household articles and now kept the Aschedule property under lock and key from 25.5.13.
42.It is pleaded by defendant no.7 in her written statement that she is in possession of suit schedule A property, being a beneficiary under the Will dated 7.3.12 and that she has approached to the authorities for mutation in respect of the said properties and that the attempt of the plaintiff to mutate the property after two months of death Late Mahesh, itself shows the falsity of the Will/Ex.A1. The defendant no.7, deny the entire allegations of the plaint in her written statement except the averment that the defendant no.7 is in physical possession and enjoyment of the schedule Aproperty and contended that she is the owner of the schedule ‘A’ property, therefore, it is for her whether to allow defendant no.1 or not into the house and that the plaintiff has no right to withdraw any thing as he never gave any permission and that he has no right 37OS.No.538 of 2013 whatsoever over the schedule property and therefore he cannot make any demands for deposit of any amount.
43.As already noticed above, defendant no.7 or defendant no.13 or the legal heirs of deceased defendant no.7 ie., defendant no.16 and defendant no.17 did not choose to file original Will dated 7.3.12, for the reasons best known to them. Since Issue No.2 and Additional Issue No.1, is answered that Ex.A1 Will is true, valid and genuine; and answered in favour of the plaintiff as such the plaintiff is entitled for the relief of mandatory injunction to remove defendant no.7. Since defendant no.7 died, her legal heirs defendants 16 and 17 come on record are to be removed from the suit Aschedule property and the said property should handover to the plaintiff. Thus, these issues are answered in favour of the plaintiff and against the defendants.
Additional Issue No.4:
44.It is contended by the plaintiff that the suit Aschedule property was in possession of defendant no.7, and after her death, her legal heirs ie., defendants 16 and 17 are still continuing in the Aschedule property hence, they are liable to pay damages @ Rs.15,000/ per month from the date of suit till the date of delivery of possession of suit A schedule property to the plaintiff. There is no dispute that suit Aschedule property was in possession of defendant no.7. There is no evidence as to how and on what basis the plaintiff is entitled for damages at such rate.
The plaintiff did not even choose to examine any of the neighbouring tenants or neighbours to speak about the prevailing rate of rent for the suit Aschedule property for the premises situated in and around the vicinity of the suit schedule Aproperty. Defendants 16 and 17 are in 38OS.No.538 of 2013 occupation of suit schedule Aproperty even till date. During cross examination, DW1 deposed that, at present the suit schedule Aproperty is let out to tenant but he does not know the rent that has been paying by the tenant. As such, defendants 16 and 17 are liable to pay some amount per month towards damages to the plaintiff. There is no evidence with regard to damages at such rate. The said ground of damages cannot be denied as the plaintiff is entitled for possession of suit schedule Aproperty as such, he should be entitled for the damages from the date of filing of the suit till the date of delivery of possession of suit schedule Aproperty to the plaintiff. Therefore, the damages will be decided by way of separate enquiry under Order 20 Rule 12 of CPC. Therefore, this issue is left open to be determined on a separate application under Order 20 Rule 12 of CPC.
Hence, this issue is answered accordingly.
Issue No.3 and Additional Issue No.5:
45.Since Issue No. 2 and Additional Issue Nos.1 to 3 are answered in favour of the plaintiff and against the defendants, the suit is to be decreed accordingly.
In the result, the suit is decreed by declaring the plaintiff as the
Executor and Testator of the estate of late Sri.Arcot Kumaresan Mahesh, duly appointed under the Will dated 11.10.2012, executed by late Sri.Arcot
Kumaresan Mahesh, and to carry out the directions of the Testator under the Will in respect of suit “A” and “B” schedule properties by disposing of the said suit “A” and “B” schedule properties and distribute the sale proceeds as directed in the Will.
39OS.No.538 of 2013
The suit is also decreed in favour of the plaintiff by granting mandatory injunction against the defendants 16 and 17 who are legal representatives of the deceased defendant no.7, by removing them from the suit schedule “A” property and handover the same to the plaintiff.
The claim for damages is left open to be determined on a separate application filed by the plaintiff under Order XX Rule 12 of Civil
Procedure Code.
Having regard to the facts and circumstances of the suit, there shall be no order as to the costs.
Dictated to the Stenographer, transcribed and typed by her,
corrected and pronounced by me in open court on this the 31 st day of DECEMBER, 2018.
(FAC) ADDITIONAL RENT CONTROLLER:CUM: XVIII JUNIOR CIVIL JUDGE:SECBAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff: For Defendants: PW1 R.Vekat ReddyDW1 Sarathi Arcot Jagath PW2 S. Amarender ReddyDW2 V.J.Vijay Shanker PW3 Keerthi Prabhakar
Exhibits marked
For Plaintiff: For Defendants: NIL Ex.A1Original Will dated 11.10.2012. Ex.A2Original Receipt dt.12.09.12. Ex.A3Original Mutation certificate. Ex.A4Original Death Certificate of A.K.Mahesh dt.31.10.12. Ex.A5Office copy of Letter dt.21.12.12, to the Executive Officer, Secunderabad Cantonment Board, Ex.A6Office copy of Letter dt.23.12.12, to the Assistant Revenue Officer, Bangalore.
40OS.No.538 of 2013
Ex.A7Office copy of Letter dt.29.12.12. Exs.A8Postal acknowledgments. to A15 Ex.A16Office copy of Letter dt.27.2.13, from the Postal Authorities Ex.A17Letter dt.09.1.13, addressed by the defendant no.8. Ex.A18Letter dt.10.1.13, addressed by the defendant no.9. Ex.A19Letter dt.01.2.13, addressed by the defendant no.11. Ex.A20Reply Legal notice dt.1.3.13, addressed by defendant no.11
Ex.A21Office copy of reply legal notice dt.11.3.13. Ex.A22Postal acknowledgment dt.18.5.13. Ex.A23Legal notice dt.16.2.13. Ex.A24Office copy of reply notice dt.25.2.13. Ex.A25Postal returned cover. Ex.A26Office copy of letter dt.27.3.13. Ex.A27Postal acknowledgment Ex.A28Office copy of Letter dt.22.3.13. Ex.A29Office copy of Letter dt.09.4.13. Ex.A30Letter dt.26.8.13. Ex.A31Certified copy of Letter dt.1.2.13. Ex.A32Copy of Will dt.7.3.12. Ex.A33True copy of Online receipt dt.31.1.13. Ex.A34True copy of Paper Publication dt.1.02.13. Ex.A35Original Cheque dt.20.10.12, bearing No.244327. Ex.A36Original Cheque dt.24.10.12, bearing No.244328. Ex.A37Office copy of Letter dt.21.4.13. Ex.A38Postal receipt dt.22.04.13. Ex.A39Office copy of Letter dt.22.04.13. Ex.A40Postal receipts (3 Nos.) dt.23.04.13. Ex.A41Reply dt.4.5.13. Ex.A42Death report dt.16.10.12. Ex.A43Burial ground report dt.17.10.12. Ex.A44IP Final bill issued by the Oxygen Hospital Ex.A45Extract of email dt.25.10.12. Ex.A46Certified copy of Order on IA111 in OS.No.26860/13 Dt.10.4.15, passed by the Hon’ble Addl. Sessions Judge, Bangalore. Ex.A47Copy of General Power of Attorney dt.5.10.12.
41OS.No.538 of 2013
Brought and Marked by PW3
Ex.C1Original Registered Sale Deed along with Plan and Layout. Ex.C2Original certificate issued by the Corporation of the city of Bangalore, dt.20.07.1987.
(FAC) ADDITIONAL RENT CONTROLLER:CUM: XVIII JUNIOR CIVIL JUDGE:SECBAD.