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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 1ST DAY OF OCTOBER 2012

BEFORE

THE HON’BLE MR. JUSTICE A S BOPANNA

R.F.A. NO.1888/2011c/w

R.F.A.No.1889/2011

Between :

1. Dr. (Mrs.) M.S. BhavaniW/o D Suresh BabuAged about 52 years

2. D. Sursh BabuS/o DasappaAged about 52 years

Both are r/of No.74Dorchestor AvenueWarwick, Perth CityWest Australia-6024 … Appellants

(Common)(By Sri S.N. Aswathanarayan, Adv.)

And :

1. M.S. Raghu NandanS/o late M. Srinivasa MurthyAged about 49 yearsR/at No.19, Railway LayoutNandini Layout, 4th BlockRama Krishana NagarBangalore.

2. Smt. Nirmala MurthyW/o late M. Srinivasa MurthyAged about 74 yearsR/at No.377, 5th Main3rd Block, 3rd Stage

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BasaveshwaranagarBangaluru-560 079. .. Respondents

(Common)

(By Sri D.R. Sundaresh, Adv. for R1 Sri B.K. Sampath Kumar, Adv. for R2)

This R.F.A.No.1888/2011 is filed under Order 41 Rule1 read with Section 96 of CPC, against the judgment anddecree dated 09.09.2011, passed in O.S.No.6341/2006 onthe file of the III Addl. City Civil and Sessions Judge,Bangalore, partly decreeing the suit for declaration andpermanent injunction.

This R.F.A.No.1889/2011 is filed under Order 41 Rule1 read with Section 96 of CPC, against the judgment anddecree dated 09.09.2011, passed in O.S.No.1845/2008 onthe file of the III Addl. City Civil and Sessions Judge,Bangalore, dismissing the suit for ejectment.

These appeals having been reserved for judgment,coming on for pronouncement this day, the Courtpronounced the following :

J U D G M E N T

The defendants No.2 and 3 in O.S.No.6341/2006,

who are the plaintiffs in O.S.No.1845/2008 are before

this Court in these two appeals claiming to be aggrieved

by the common judgement and decree dated 09.09.2011

passed in the said suits. The appeal in RFA

No.1888/2011 is against the judgment in O.S.No

6341/2006 while RFA No.1889/2011 is against the

judgement in O.S.No.1845/2008.

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2. The suit in O.S.No.6341/2006 is filed by

Sri.M.S.Raghunandan against his mother Smt.Nirmala

Murthy, sister Dr. (Smt). M.S.Bhavani and brother-in-

law Sri.D.C.Suresh Babu seeking declaration that his

mother and sister are disentitled to execute any sale

deed in favour of the brother-in-law and for the other

reliefs. The sister Dr (Smt) M.S.Bhavani and son-in-law

Sri.D.Suresh Babu have filed the suit in

O.S.No.1845/2008 for ejectment against the mother

Smt.Nirmala Murthy terming her as a licensee. The suit

in O.S.No.6341/2006 filed by Sri.M.S.Raghunandan

(son) for declaration has been decreed in part, while the

suit in O.S.No.1845/2008 filed by Dr (Smt) M.S.Bhavani

(daughter) and Sri Suresh Babu (son-in-law) has been

dismissed. The daughter and son-in-law who have been

unsuccessful in both the suits have filed these two

appeals.

3. The parties would be referred to by their

names for the purpose of convenience and clarity as

they have been arrayed differently in the two suits. The

result of the suit for declaration would have a bearing

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on the suit for ejectment, as such the facts are noticed

in that order.

4. The suit in O.S.No.6341/2006 is filed by

Sri.M.S.Raghunandan (son) stating that the suit

schedule property is the self acquired property of his

father Late M.Srinivasa Murthy, he having purchased

the site from Bangalore Development Authority in the

year 1974. Thereafter, he borrowed loan from a Co-

operative Society and constructed a residential house.

The parents lived in the house and it was his intention

that his only son would succeed to the property. The

said intention was stated in the registered WILL dated

07.06.1995. He also executed the WILL dated

18.05.1995 which was notarized. The WILL dated

07.06.1995 is a holograph WILL wherein he has made

his intentions clear and he has mentioned about his

wife, son, daughter, the son-in-law and their son. The

contents of the WILL is referred to the effect that he

celebrated the marriage of his daughter in the year 1983

but unfortunately ended in dissolution and about the

son Sameera born out of that marriage. Sri.

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Raghunandan being employed in BHEL has been stated.

It is averred that the father had expressed aspersions

against his son-in-law and there was dislike and

hatredness. It is also averred that the father had

disbelieved the son-in-law and daughter.

5. The intention of the father as expressed is that

the mother shall be the sole legal heir of the property

and she will have every right and authority to sell the

property to any other third person other than her own

children or mortgage or lease the house or totally to

bequeath it to anybody who takes care of her in her last

days. It is contended that such situation has not arisen,

as she is being taken care of by Sri.Raghunandan. The

daughter Dr.Bhavani and her husband are staying in

Australia so they are not taking care. The decision has

been left to Smt.Nirmala Murthy and none has the right

to question her and make unjust claims.

Sri.Raghunandan also avers that the WILL provides for

sale of the house and the manner in which the amount

is to be divided between the son and daughter. In that

regard, it is provided that out of the sale proceeds a

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sum of Rs. 2,00,000/- for Sri Raghunandan and

Rs.50,000/- for grandson Sameera is to be set apart

and the remaining sale proceeds to be divided equally

between Sri.Raghunandan and Dr.M.S.Bhavani. It is

contended that the property was to be sold with the co-

operation of the children and not to sell it to them.

6. It is further averred in the plaint that he was

taking care of his mother. The mother being a

conservative person in any case was unable to adjust

with the daughter’s husband as he was a non-Brahmin

and a non-vegetarian. When that was the position, the

daughter started visiting the mother and started giving

threats and the son-in-law also brought unscrupulous

persons creating a situation where the mother was

threatened. Her health also started getting effected and

the daughter started administering medicines which

were detrimental. Such motive is attributed to his sister

for getting the earlier WILL being executed by the father.

The further averment is that without the knowledge of

Sri Raghunandan, the fraudulent sale deed was

prepared and got executed in favour Dr.M.S.Bhavani

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and Sri.D.C.Suresh Babu. Such sale deed is contrary to

the WILL of the father. It is alleged that the mother was

taken to the Sub-Registrar’s office in a state of

drowsiness and she was unable to comprehend where

she was but she was taken by the daughter and

son-in-law to the Sub-Registrar’s Office at 5.00 p.m.

when it was to close and it was represented to her that

some photographs are to be taken for passport and

VISA to enable her to travel abroad with them. The

mother was also unaware of any procedures regarding

sale deeds also. The Officer who was present in Sub-

Registrar’s Office did not read over the document nor

told her about the transaction. She was also not able to

read the document in Kannada. Sri Raghunandan came

to know of the same only when he applied for

encumbrance certificate to pay the taxes. It is only at

that stage he came to know that it does not stand in the

name of the father. He thereafter applied for certified

copies and learnt about the registration. It is averred

that in such circumstances, the allegation is made

against the mother as she has also acted contrary to the

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WILL. Even if there was a sale, it was for a lesser value

than what prevailed in 2005. The valuation got done by

the son-in-law is also to suit the convenience. Sri

Raghunandan therefore contends that the sale deed

does not bind him and fraud has been played on him

and he is entitled to get the entire property. He has

therefore instituted the suit.

7. The Defendants on being served with the suit

summons, appeared and filed their written statement.

The first defendant Smt.Nirmala Murthy filed her

independent statement while the defendants No.2 and 3

Dr.M.S.Bhavani and Sri D.C.Suresh Babu filed their

joint written statement. Smt.Nirmala Murthy in her

written statement has admitted the relationship

between the parties and the property being the self

acquired property of her husband late Sri M.Srinivasa

Murthy and the manner in which it was acquired and

the construction was put up. The fact that her

daughter Dr. Bhavani was practicing medicine privately

and that her son Sri Raghunandan is employed in

BHEL has also been stated. It is further averred that

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Dr.M.S.Bhavani got married to one Sri Pandurangi and

has begotten a son named Sameera. However, she

divorced Sri Pandurangi and thereafter married Sri

D.C.Suresh Babu in 1994 and all the marriage expenses

were borne by late Srinivasa Murthy. The plaintiff

Ranghunandan also got married in 1994 and has a son

and he is residing separately with his family. Hence,

she and her husband late Srinivasa Murthy were

residing in the property in question. It is averred that

her late husband executed a WILL dated 18.05.1995

which was attested before a notary. However, he

subsequently made his last WILL dated 07.06.1995 in

his own handwriting and registered the same in the

office of the Sub-Registrar, Rajajinagar, Bangalore.

Under the said WILL, he has left the discretion with

regard to the property to the first defendant

Smt.Nirmala Murthy to dispose of the property for

valuable sale consideration and to distribute the same

among his daughter and son. It is her case that as per

the intention expressed, out of the sale proceeds, a sum

of Rs.2,00,000/- is to be paid to the son Sri

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Raghunandan and Rs.50,000/- to the grandson

Sameera, jointly with Dr.M.S.Bhavani. It is further

provided in the WILL that if Smt.Nirmala Murthy does

not choose to sell the property during her life time, then

the daughter Dr.M.S.Bhavani with the consent of his

Son Raghunandan should sell the property and pay

Rs.2,00,000/- more to Sri Raghunandan and

Rs.50,000/- to Sameera. Late Srinivasa Murthy died on

21.03.2002 and the first defendant Smt.Nirmala Murthy

developed depression and was also a diabetic patient.

The second defendant Dr.Bhavani who was residing

nearby was visiting her and giving medicines.

8. It is further averred that during this period

Dr.Bhavani managed to obtain signatures of

Smt.Nirmala Murthy on some blank papers and in

certain places she has also forged her signature. The

grandson Sameera was also being sent by

Dr.M.S.Bhavani during nights to stay with the first

defendant. During the first week of February

Dr.M.S.Bhavani and Sri Suresh Babu suggested to the

first defendant to go on South India tour for 15 days.

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Accordingly, she went along with grandson Sameera

and during that period Dr.Bhavani taking advantage of

her absence had taken away the original documents

from the house of the first defendant. On the 23rd of

February the first defendant returned in the morning at

7.30 a.m. during which time Dr.M.S.Bhavani came to

her house and started quarreling for going to her own

house without going to the daughter’s house and

compelled the first defendant to go to the daughter’s

house and she was immediately taken without allowing

her even to change her dress. The first defendant avers

that she had fever and was tired. When she went to her

daughter’s house, there were several other persons and

on her daughter giving her some medicines, she felt

drowsy and was not able to understand anything. At

that point, they told the first defendant that she would

be taken abroad for tour and therefore, her visa was

required to be prepared and accordingly, she was made

to sign several papers without even being allowed to

read and understand the same. She also states that

she was told the photographs were to be taken for the

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same purpose. The first defendant further contends

that on the next morning, Sri Suresh Babu met the first

defendant and handed over cheque for Rs.20,00,000/-.

The first defendant being surprised sought for

clarification about the cheque. But, she was asked to

keep it with her. On the next evening, Sri Suresh Babu

came again and collected the cheque and destroyed the

same immediately. When it was further enquired, she

was told that she had availed loan from the Bank and

for that purpose they obtained her signatures. It is

alleged that they did not allow to contact any person

including her son Sri Raghunandan. During October

2004 when Sri Raghunandan visited her, she burst into

tears and disclosed the said fact to him. Thereafter her

son informed her that Dr.Bhavani and Sri Suresh Babu

have played fraud and obtained the sale deed in respect

of the property. She therefore contends that they have

taken undue advantage of her and have secured sale

deed of the property worth more than Rs.70,00,000/- by

showing the sale consideration as Rs.16,42,000/-.

Even that amount has not been paid. But,

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subsequently they have managed to remit the sum of

Rs.27,00,000/- to her account. The first defendant

therefore prays that the suit be disposed of in

accordance with law.

9. The second and third defendants viz.,

Dr.M.S.Bhavani and Sri Suresh Babu though have

admitted that the property belonged to late Srinivasa

Murthy and the property has thereafter vested with

Smt.Nirmala Murthy consequent to the WILL executed

in that behalf, would however dispute the other

contentions. It is contended that the sale deed executed

by Smt.Nirmala Murthy on 25.02.2004 is out of her own

free will for valuable consideration. The said

transaction is not vitiated by fraud or undue influence

is their contention. The valuation of the suit and the

payment of Court Fee thereof is also pointed out to

contend that the same is insufficient. The defendants

contend that when the plaintiff himself admits that the

property was the absolute property of his father and the

WILL executed by him is supreme, the sale made is as

per the said desire and as such he has no locus standi

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to question the same. Certain of the incoherent

contentions put forth in the plaint are referred and on

adverting to the contentions parawise, have denied the

allegations more particularly to the manner in which the

execution of the sale deed was described by contending

that Smt.Nirmala Murthy was in a state of drowsiness

and it has been misrepresented to her that her

signatures and photographs were required for obtaining

VISA and in that context, was taken to the Sub-

Registrar’s office and the sale deed was obtained

clandestinely. The effect of the pleading is that

Smt.Nirmala Murthy was literate and worldly wise so as

to know about all implications.

10. The other allegations with regard to the

property being transferred and that she had come to

know of the same subsequently have also been denied.

These defendants have contended that the value as

stated by the plaintiff and the first defendant is not

correct and the allegation that it was undervalued since

Sri K.M.Manjunath and Sri Suresh Babu were friends is

also false. The allegation made against the daughter

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about giving medicines to the mother which made her

drowsy have also been denied. The allegations made in

the written statement of Smt.Nirmala Murthy is also

adverted to and the allegation therein with regard to

the cheque for Rs.20,00,000/- being handed over and

the same being destroyed are also denied and the

allegation that even the sum of Rs.16,42,000/- was not

received as mentioned in the sale deed is also denied.

These defendants have on the other hand contended

that Smt.Nirmala Murthy pressurised them to purchase

the property on the ground that if the property was sold

to third person, it would go outside the family. In

deference to her wishes these defendants purchased the

suit house under a registered sale deed by making

payment of Rs.16,42,000/- by cash before the Sub-

Registrar.

11. It is further contended that Smt.Nirmala

Murthy thereafter went on pressurising these

defendants that the property was worth much more

than the amount for which it had been sold under the

registered sale deed and yielding to such pressure,

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these defendants have made hefty payments only to buy

peace. In that regard, it is contended that they

borrowed a sum of Rs.14,00,000/- from ICICI Bank on

21.04.2004 and it was transferred to Smt.Nirmala

Murthy’s account. Again they borrowed a sum of

Rs.7,21,214/- on the security of their another property

from Visweswaraiah Cooperative Bank and paid to the

first defendant through a pay order on 03.06.2004

which has been credited to her account. Apart from the

same, Dr.M.S.Bhavani is stated to have issued a cheque

for Rs.10,00,000/- in favour of Smt.Nirmala Murthy

and she encashed the same by getting it credited to her

account. These defendants therefore contend that

including a sum of Rs.16,42,000/-, a total sum of

Rs.47,62,214/- has been given to Smt.Nirmala Murthy.

In spite of receiving the same, she has joined hands

with Sri Raghunandan and engineered the instant suit.

It is their case that after registration, they have taken

possession and have shifted all their household articles

to the suit house. But, as they were residing in

Australia, they had permitted Smt.Nirmala Murthy to

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occupy the house on a permissive basis. Hence they

contend that the suit be dismissed.

12. In the above backdrop, Dr. M.S. Bhavani and

Sri. D. Suresh Babu have filed the suit in O.S.

No.1845/2008 against Smt. Nirmala Murthy seeking to

eject her from the suit schedule property to which Sri.

M.S.Raghunandan has been impleaded as second

defendant. The case of the plaintiffs therein is that

Smt. Nirmala Murthy has sold the property under

registered sale deed dated 25.02.2004 and has put them

in possession. However, since the plaintiffs were

residing in Australia and since they were not keen on

giving the premises on lease, permitted Smt. Nirmala

Murthy to stay in the house as licensee and make use of

the same. But, in the meanwhile, Sri M.S.

Raghunandan has filed a frivolous suit in

O.S.No.6341/2006 and in that suit, Smt. Nirmala

Murthy has joined hands and has not reciprocated the

noble gesture. Hence, the plaintiffs are not interested in

continuing the licence and have therefore terminated

the same by issuing legal notice dated 25.08.2007. She

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was therefore asked to remove all her articles from the

suit house. Since Smt. Nirmala Murthy has issued a

reply denying the licence, the suit is filed praying that

she be ejected from the premises.

13. The defendants Smt. Nirmala Murthy and Sri

M.S. Raghunandan have entered appearance and filed

their separate written statements. Smt. Nirmala Murthy

has reiterated what had been stated in the written

statement filed in O.S.No.6341/2006 as the first

defendant therein to the effect that her daughter and

son-in-law had played fraud and obtained the sale deed.

She had therefore referred to the suit filed by her

son Sri M.S.Raghunandan and contended that the very

title of the plaintiffs is disputed. Hence, it is denied that

she is a licensee and has sought for dismissal of the

suit.

14. The second defendant Sri. M.S. Raghunandan

has filed his separate written statement and reiterated

his averments made in his suit filed in O.S.

No.6341/2006 and is a replica of the written statement

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filed by his mother-Smt.Nirmala Murthy. Hence, he has

also sought for dismissal of the suit.

15. The Court below on taking note of the rival

contentions has framed as many as five issues in

O.S.No.6341/2006 which was recast subsequently and

four issues in O.S.No.1845/2008 were framed which

read as hereunder:

In O.S. No.6341/2006

1. Whether plaintiff proves that 1st defendant is

not the absolute owner of the suit schedule

property as per the Will and both plaintiff and

1st defendant are in joint possession of the suit

schedule property?

2. If so, whether plaintiff proves that the sale

deed executed by 1st defendant in favour of D2

and D3 is vitiated by fraud and not binding

upon the plaintiff ?

3. Whether 2nd and 3rd defendants are interfering

with the possession of plaintiff as he is in joint

possession with 1st defendant in the schedule

premises?

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4. Whether 1st defendant Smt. Nirmala Murthy

proves that by playing fraud upon her, 2nd and

3rd defendants got executed the fraudulent

sale deed in favour of them by mis-

representing that her signature is required for

getting visa and pass-port and took her

photograph?

5. To what decree or order?

In O.S. No.1845/2008

1. Whether the plaintiff prove that the defendant

is residing in the suit schedule property under

them as licensee?

2. Whether Court fee paid is sufficient?

3. Whether the plaintiffs are entitled for the relief

as sought?

4. What order or decree?

16. Since both the suits were clubbed, the parties

tendered common evidence and marked common

documents. Sri Suresh Babu, the son-in-law of Smt.

Nirmala Murthy was examined as PW-1, the witness Sri

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V Natarajan and Dr.G.C. Sumathi Kumar were

examined as PWs-2 and PW-3. The documents at

Exhs.P-1 to P-27 were marked. Smt. Nirmala Murthy

examined herself as DW-1 and Sri Raghunandan was

examined as DW-2. The documents at Exhs.D-1 to

D-77 were marked in support of their case. The Court

below in the background of the same has decreed the

suit in O.S.No.6341/2006 in part and dismissed the

suit in O.S.No.1845/2008.

17. Sri S.N. Aswathanarayana, learned counsel for

Dr.M.S.Bhavani and Sri Suresh Babu has argued

elaborately to assail the judgment of the Court below,

the gist of the contention is as hereunder. Though the

father had executed an earlier WILL dated 18.05.1995,

the subsequent WILL dated 07.06.1995 has been

written in his own hand. The said WILL provides the

absolute power to Smt. Nirmala Murthy to sell the

property. Accordingly, out of her free will she had sold

the property jointly to her daughter and son-in-law.

Despite the same, Sri Raghunandan has made a false

claim in the suit that the mother has supported the

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same with dishonest intention. Reference is made to

the rival pleadings in detail and the issues framed

thereto. The issues have been recast while writing the

judgment without opportunity. When the dishonest

intention was noticed, the suit for ejectment was filed.

Not only under the WILL, power to sell has been given to

Smt. Nirmala Murthy, even otherwise she would become

the absolute owner in view of Section 14 (1) of the

Hindu Secession Act. The entire allegation of she being

unwell and being drowsy due to drugs are all created.

She had come back from the trip two days prior and not

in the manner as narrated. In that regard, the oral

evidence and cross-examination is referred. She had

received the entire sale consideration by cash and

admitted the same before the Sub-Registrar. The

witness-PW-2 has also stated with regard to the same.

In fact she was interested in hiding the transaction from

her son. If her son was residing with her, she would

have told him in the beginning itself, if what she is now

saying was a fact. The letter at Ex.P.17 and additional

document sought to be produced are relied to contend

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that the mother herself did not have good opinion on

her son. After having sold the property, the mother and

son have connived and she had thereafter received

further amount which was credited to her account and

she had reinvested. The document at Ex.D.1, a rental

agreement relied on is the handiwork of the son Sri

Raghunandan as evident from the stamp paper

purchased in BHEL Branch and it is created by tracing

the signature of Dr. Bhavani. The son-in-law has

obtained loan as seen from the documents. When she

had the power to sell and when she has sold and

utilised the money, the question of playing fraud in

executing the sale deed does not arise. She was worldly

wise and had knowledge of both Kannada and English.

Thus, the learned counsel by referring to the documents

on record would contend that the sale is valid. Further,

in reply he would state that the sale deed contains an

endorsement for payment. That was the actual value

and the sale deed has not been referred to under-

valuation. The contention that the subsequent amount

received is for son’s education cannot be accepted as

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education loan had been taken and there was a joint

account. The suit is filed by Raghunandan only. Till

this day, Smt. Nirmala Murthy has not challenged by

filing any suit or by filing complaint if in fact fraud was

played. Hence, it is prayed that the appeal be allowed.

18. Sri B.K. Sampath Kumar, learned counsel for

Smt. Nirmala Murthy would seek to sustain the

judgment passed by the Court below. The sale deed

does not refer to the last WILL under which she was

merely an Executor and could not have sold the

property. Hence, fraud was played and without even

mentioning the relationship, the sale deed was drafted.

There is no proof for passing of consideration and Sub-

Registrar has also not endorsed for payment in his

presence. The cross-examination of PW-1 would

disclose the manner in which she was left at Sub-

Registrar’s Office after the registration. If so much cash

had in fact been paid, it is difficult to accept as to how

the mother would have been left like that without

knowing where she went after the registration. The

witnesses examined are all interested witnesses. Sale

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deed was presented at 5.30 p.m. The daughter has not

been examined. When payment was disputed, there

should have been proof to show that they possessed

that much amount. The witnesses to the sale deed have

not been examined. All the surrounding circumstances

will show that by playing fraud, the sale deed was

obtained. No intention was expressed by the Testator as

per Ex.P-1 to sell the property. Despite the same, the

daughter has influenced and secured Smt. Nirmala

Murthy to execute the WILL with a view to deny the

property to the son. Sale deed which is obtained by

misrepresentation is void. Despite the WILL providing a

share to the son, he has not been informed. The onus

was heavy on the daughter and son-in-law to establish

that it is a valid sale deed, but it had not been

discharged. Amount paid after the sale deed is not

material as it is paid for son’s education. The document

sought to be produced now cannot be accepted, as it

does not satisfy the requirement of Order XLI Rule 27 of

CPC and it is also fabricated.

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19. Sri D.R. Sundaresh, learned counsel for Sri

Raghunandan would also seek to sustain the judgment

of the Court below. The fact that there were two WILLs

is not in dispute but the later WILL is the holograph

WILL and that being the last WILL was within the

knowledge of all the parties. The sale deed does not

refer to the last WILL but the earlier WILL alone has

been referred in the sale deed. Sri Raghunandan has

only sought for implementation of the WILL dated

07.06.1995 as per his prayer in the suit which cannot

be denied since that was the intention of the Testator.

The entire intention of the daughter and son-in-law was

to keep the son out of picture and knock-off the

property. Son has only sought for his share. The

mother has not been given the right only to sell the

property as provided in the WILL but she should also

apportion the same as mentioned therein if she sells the

property. The sale deed based on invalid documents

cannot be considered as valid. Even if it is sold, the son

should know the consideration so as to know the share

to which he is entitled. The registered WILL and

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intention of the Testator is not respected by the

daughter and son-in-law. Sri Suresh Babu’s affidavit

evidence itself is not valid as it is not in accordance with

the Notaries Act and as such no evidence in effect is

tendered. When the sale deed is illegal, the suit for

ejectment is not maintainable.

20. In the light of the above the following points

arise for consideration, they are;

(i) Whether Smt.Nirmala Murthy has the right

to sell the suit schedule property acting

under the WILL dated 07.06.1995 (Ex.P-1) or

otherwise?

(ii) In either case, whether the sale deed dated

25.02.2004 executed by Smt. Nirmala

Murthy is obtained by fraud against her will

as alleged?

(iii) Even if fraud on the part of Dr. M.S. Bhavani

and Sri Suresh Babu is not established, and

notwithstanding the power to sell under the

WILL whether the sale deed dated

25.02.2004 provide absolute right to them ?

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(iv) What relief are the parties entitled to in the

facts and circumstances of the case, in these

appeals?

21. Having noticed the manner in which the

parties have made allegations against each other and

the rival contentions have been raised, there can be no

doubt that late M Srinivas Murthy would be turning in

his grave in repentance for having left behind the

property. I feel forced to comment in this manner

because from the very perusal of the WILL dated

07.06.1995, it would disclose that he was a person of

moderate means, despite that provided good education

to both his children and with great difficulty

constructed the house with his retirement benefits and

by securing loan and also took up private employment

after retirement to clear the loan. That apart, he even

made provision for the manner in which the property

would be enjoyed after his death, yet the resultant

position is open for all to see, for which all his legal

heirs have contributed in equal measure. Be that as it

29

may, the rights of the parties have to be decided on the

material available on record.

22. The first and foremost document to be noticed

is the WILL dated 07.06.1995 which is marked as Ex.P-

1. Though the WILL dated 18.05.1995 has been referred

to in the pleadings and referred to in the disputed sale

deed dated 25.02.2004, it is not in dispute that the last

WILL is the one dated 07.06.1995 and the rights will be

regulated by the same. Hence, the proof of the WILL

does not arise, but there is dispute with regard to the

intention of the Testator and the extent of right granted

to Smt. Nirmala Murthy, the wife of the Testator and

also the right of the daughter Dr. Bhavani and son Sri

Raghunandan in relation to the property. The learned

counsel for Dr. Bhavani, in order to justify the purchase

made by her and her husband would contend that

Smt.Nirmala Murthy had absolute right by referring to

the contents of the WILL and to Sections 14 (1) and (2)

of the Hindu Succession Act. The decision in the case

of V. Tulasamma and Others –vs- Sesha Reddy

(dead) by L.Rs. [(1977) 3 SCC 99] is referred wherein

30

with reference to the said provision it is held that a

widow is entitled to maintenance out of her deceased

husband’s estate irrespective of whether that estate is in

the hands of his male issue or is in the hands of his co-

parcener. The widow would get the property by virtue of

her pre-exiting right and the instrument would only

effectuate such pre-existing right. The decision in the

case of Thota Sesharathamma and Another –vs-

Thota Manikyamma (dead) by LRs and Others

[(1991) 4 SCC 312) on the same proposition is relied

on, wherein it is held that the life estate granted to a

Hindu woman by a WILL would become her absolute

estate by operation of Sub-section (1) of Section 14 if

she was already possessed of the property as a limited

owner and the grant was in recognition of the pre-

existing right. The decision in the case of

C.Masilamani Mudaliar and Others –vs- Idol of Sri

Swaminathaswami Thirukoil and Others [(1996) 8

SCC 525] on the same point is relied upon. Though

that is the well established position of law, in my

opinion, the same cannot be made applicable to the

31

present facts as the case herein is not proceeded on that

basis by pleading in that regard. Further, Smt. Nirmala

Murthy herself has not claimed such right to the

property based on pre-existing right. In the instant

case, it is mere testamentary succession based on its

terms, which needs consideration in that regard. As

such, the said cited decisions are not of assistance.

23. The learned counsel for Dr. Bhavani has

further relied on the decision in the case of

Siddamurthy Jayarami Reddy (dead) by LRs –vs-

Godi Jayarami Reddy and Another (2011 (5) SCC 65)

wherein it is held that the Court must put itself as far

as possible in the position of a person making the WILL

in order to collect the Testator’s intention from his

expressions and the manner in which repugnant

provision and a defeasance provision in the WILL is to

be considered and it is held as hereunder:

“The distinction between a repugnant

provision and a defeasance provision is sometimes

subtle, but the general principle of law seems to

be that where the intention of the donor is to

32

maintain the absolute estate conferred on the

donee but he simply adds some restrictions in

derogation of the incidents of such absolute

ownership, such restrictive clauses would be

repugnant to the absolute grant and therefore

void; but where the grant of an absolute estate is

expressly or impliedly made subject to defeasance

on the happening of a contingency and where the

effect of such defeasance would not be a violation

of any rule of law, the original estate is curtailed

and the gift over must be taken to be valid and

operative. In the present case, the clause in

question is not a repugnant condition, but a

defeasance provision.”

24. The learned counsel for Dr. Bhavani has also

referred to the decision in the case of Shyamal Kanti

Guha (dead) Through LRs. and others –vs- Meena

Bose [(2008) 8 SCC 115]. The said decision is also

relied upon by the learned counsel for Smt. Nirmala

Murthy, wherein the Hon'ble Supreme Court has held

that the WILL should be construed by a Court

indisputably placing itself on the armchair of the

Testator. The endeavour of the Court should be to give

effect to his intention. The intention of the Testator can

33

be culled out not only upon reading the WILL in its

entirety, but also the background facts and

circumstances of the case. Stating so, the Hon'ble

Supreme Court interpreted the Clauses arising in the

said case and has held that there cannot be any doubt

whatsoever that in the event of inconsistency between

two parts in the WILL, the last shall prevail having

regard to Section 88 of the Succession Act, 1925, but

once it is possible to give effect to both the Clauses

which although apparently appear to be irreconcilable,

the Court should take recourse thereto.

25. Keeping in view the guidelines enunciated by

the Hon'ble Supreme Court in a matter of construction

of the WILL, the WILL arising for consideration in the

instant case needs to be perused. The last WILL dated

07.06.1995 is a holograph WILL and is also registered

in the Office of Sub-Registrar, Rajajinagar, Bangalore.

As already noticed, the genuiness and validity of the

WILL is not in dispute. The nature of the provision

made in the WILL with regard to the suit schedule

property only arises for consideration to determine the

34

right of the parties. In order to appreciate the same in

its correct perspective, it would be necessary to extract

the relevant part of the WILL which arises for

consideration. On referring to his daughter staying with

her husband and son separately, the Testator has also

stated that it is his moral duty to provide her a share in

his immovable property. Thereafter it reads as follows:

“After my death, my wife Smt. Nirmala

shall be sole legal and rightful heir over my

immovable and movable property and she will

have every right and authority to sell, mortgage

and lease my house or totally bequeath it to

anybody who take care of her in her last days,

and old age also.

The decision of my wife Smt. Nirmala is

supreme in this matter and none of my children

i.e., Bhavani and Raghunanda have any right to

question my wife, put unjust claim, obstruct or

put any obstacle for the manner my wife deals

with my property.

It is my desire that the house should be

sold and sale amount be divided among my

daughter and my son as per the decision of my

35

wife. My wife shall endev (sic) to sell the (sic)

during her lifetime.

In case my wife is unable to sell the house

during her lifetime, my daughter shall be the

seller of the house and she should (sic) the

house mutually with my son Raghunanda.”

26. The reading of the above portion of the WILL

would indicate that the Testator has provided for two

parts. Firstly, the manner in which his wife Smt.

Nirmala would have right to the property and would

deal with the same. Secondly, the provision made is the

manner in which the property should be dealt by the

daughter and son if his wife Smt. Nirmala Murthy does

not sell the property during her lifetime. In such event,

his daughter has been endowed with the responsibility

to sell the property and the cooperation of his son is

solicited. In such event, the manner of distribution of

the amount has been provided for so as to ensure that

the son Raghunandan would get Rs.2,00,000/- in

addition to his equal share with Dr.Bhavani so as to

make it more than his daughter Dr.Bhavani’s share.

36

Provision is also made for Rs.50,000/- to be deposited

in the joint account of Dr. Bhavani and her son

Sameera. On noticing the said contents, it would be

clear that the second part of the WILL with regard to

the manner in which the property is to be sold by the

daughter and the amount being apportioned does not

arise for consideration at this juncture since Smt.

Nirmala Murthy is still alive and the first part of the

WILL enabling her to deal with the property and the

manner in which she had dealt would alone arise for

consideration.

27. In that regard, a perusal of the two Clauses in

the first part would disclose that by the first part, the

Testator has disinherited the daughter and the son from

succeeding to the property but, has made Smt. Nirmala

his wife as the sole legal and rightful heir over all his

immovable and movable properties and an absolute

right has been granted to sell, mortgage and lease the

house or even to bequeath to anybody who takes care of

her in her last days. The said situation of bequeathing

in any event has not arisen but, she retains the

37

absolute right to sell, mortgage and lease the property

and the Testator has further clarified that her decision

is supreme and the children have no right to question or

put unjust claim. In the next Clause, he has expressed

his desire that the house should be sold and the sale

amount be divided among the daughter and son as per

her decision and that she endeavour to sell during her

lifetime. What is to be noticed is the word employed

therein is ‘desire’ and not his intention that she must

sell. Therefore, if both the Clauses are read together,

though a right has been given to his wife to sell the

property, it is to be exercised at her own discretion and

there is no compulsion to do so. It was only his desire

that she endeavour to sell it during her lifetime and

divide the amount as per her desire. Hence, if she

chooses to sell, even then division would be as per her

desire and not as indicated in the second part where the

daughter is to sell the property and distribute the

amount after the death of the Testator’s wife. But, both

the children would become entitled to a share if she

sells the property.

38

28. The intention of the Testator definitely is not

that the wife should compulsorily sell the property and

remain shelter-less during the remaining part of her life

by distributing the amount to the children but, it was a

discretion to be exercised by her. Therefore, insofar as

selling the property during her lifetime, it cannot be

accepted that she was a mere executor of a WILL. On

the other hand she herself was a beneficiary who had

the right to exercise her discretion with regard to the

property. Though it is contended on behalf of the son

that she was only an executor and could not have sold

the property, it is contrary to what has been pleaded in

his own suit to state that the mother’s decision was

supreme as per the WILL. Hence, under the WILL there

was absolutely no fretters on Smt. Nirmala Murthy to

sell the property provided she exercised such discretion

voluntarily at her own will and thereafter used the sale

consideration as desired by the Testator. At the same

time, there was no compulsion that she must sell it but

the desire i.e., it was only a wish of the Testator that

39

she sells and divides the amount to the children during

her life time. Hence, in the instant case, I am of the

considered opinion that the WILL provides right to

Smt.Nirmala Murthy to sell the property but, it is at her

option when she voluntarily chooses to do so.

Accordingly, Point No.1 framed above is answered in the

affirmative.

29. Though I have arrived at the above conclusion,

in view of the contentions urged and the very stand

taken by Smt.Nirmala Murthy herself that the sale was

not voluntary, the question that would arise is as to

whether the transaction under which Dr.Bhavani and

Sri Suresh Babu claim to have purchased the property

has been done out of her own free will since Sri

Raghunandan as well as Smt. Nirmala Murthy contend

that it was obtained out of fraud and coercion. Even

otherwise, the question that would arise is as to

whether the sale is in consonance with the desire

expressed by the Testator when Smt. Nirmala Murthy

herself contends that she did not intend to sell. Hence,

even if fraud and coercion is not established, it would

40

have to be examined as to whether the sale transaction

is a natural and bonafide one where sale consideration

had passed since to that extent, Sri Raghunandan

would have interest to receive a portion of the sale

proceeds, if Smt. Nirmala Murthy had exercised the

option to sell the property as per the desire of the

Testator.

30. In order to establish that the sale deed dated

25.02.2004 executed by Smt. Nirmala Murthy was a

bona fide transaction for valuable consideration, the

son-in-law Sri Suresh Babu has been examined as

P.W.1 by filing his evidence by way of affidavit. At the

outset, the contention by the learned counsel on behalf

of Sri Raghunandan that the said affidavit attested by a

Notary in Australia would not be admissible for not

being in conformity with Section 14 of the Notaries Act

needs to be considered. In this regard, it is no doubt

true that an affidavit sworn to outside the Country

would be acceptable in the manner as provided therein.

Firstly, it is not shown that it has not been notified.

However, in the instant case, it is not as if the affidavit

41

was filed and that was the end of the matter. Pursuant

to filing such affidavit, he has appeared before the Court

and the same has been treated as his examination-in-

chief and on such examination, he has been cross-

examined by the advocates representing the opposite

parties. Therefore in such circumstance, it would

amount to recording his evidence and therefore the

same cannot be discarded only on that count. If at all

such objection was available, it should have been raised

before availing the opportunity of cross examination

since the same being a curable defect could have been

rectified by filing a fresh affidavit or recording the

examination when he was very much present in Court.

In that light, the evidence of PW-1 cannot be discarded

as contended.

31. In his evidence, wherein he has been

considered as P.W.1, in respect of both the suits Sri

Suresh Babu keeping in view both the cases has

referred to the sale deed dated 25.02.2004 which was

registered in their favour by his mother-in-law and he

has contended that they were in possession thereafter

42

and had left to Australia on 08.06.2004 by permitting

Smt.Nirmala Murthy to occupy as they did not want to

give it on lease and that she is in permissive possession

and liable to vacate.

32. He has stated that Smt.Nirmala Murthy in fact

pressurised them to purchase the property to retain it

in the family and also since she can continue to stay

therein. Accordingly, a valuable consideration of Rs.

16,42,000/- was paid by way of cash before the Sub-

Registrar. However, she started pressurising them

thereafter stating that the value was much more and as

such he borrowed a sum of Rs. 14,00,000/- from ICICI

Bank on 21-5-2004 and transferred to her account.

Again a sum of Rs. 7,21,214/- was borrowed on the

security of another property and paid vide pay order

dated 03-06-2004. Again Dr.Bhavani issued a cheque

for Rs.10,00,000/-. He stated that due to such

payments, in all a sum of Rs.47,62,214/- has been

paid. Despite that, she has joined hands with Sri

Raghunandan at this point. He stated that all their

things were shifted into the house after the sale was

43

made, yet she was allowed to stay in the house but she

has not reciprocated their noble gesture. In the cross

examination, he has denied the suggestion that

Smt.Nirmala Murthy did not have the authority to sell

as per the WILL. He admits that he has not obtained

any other document except the sale deed for having paid

Rs.16,42,000/- and that there is no endorsement that it

was paid before the Sub-Registrar. He says that it is

stated in the sale deed that the entire sale consideration

was paid. The subsequent payments are after the sale

deed and Rs. 10,00,000/- is on 23-03-2006 i.e. after

two years. He says that the sale negotiation had taken

place three months prior. He has been cross examined

in detail with regard to the manner in which it was

proceeded for registration. He has denied the suggestion

that she was taken on the pretext of being taken to the

VISA office and the questions are directed at suggesting

about their attempt to knock off the property. Since it

was not required to inform Raghunandan about the sale

as per the legal advice, he was not informed is what he

has stated. All other suggestions put to him regarding

44

he having sent Smt.Nirmala Murthy for the trip and that

she had returned only on 25.02.2004 and that

Dr.Bhavani was treating her mother for depression etc

were the suggestions directed at the circumstance

under which the sale deed was got executed but he has

denied all such suggestions. Though he has denied with

regard to the timing of the registration of the sale deed

being beyond office hours, with regard to the payment

sale consideration, it is stated that he had carried

Rs.16,42,000/- to the office of the Sub-Registrar in a

big bag, counted the amount in the presence of the Sub-

Registrar and paid it to Smt.Nirmala Murthy. He states

that Smt.Nirmala Murthy had gone to their house before

going to the Sub-Registrar’s office but was not

accompanied by anybody when going back and he does

not remember if it was about 7.30 p.m. He has denied

that the subsequent payments were made towards his

son Sameer’s education. It is to be noticed that with

regard to the allegation of fraud and coercion as also

she being drugged, nothing has been extracted in the

cross examination. As such it would still be the burden

45

of Smt. Nirmala Murthy and Sri Raghunandan to

establish the same in line with the allegations made and

the suggestion put in cross examination. However, with

regard to the payment of sale consideration having been

asserted by Dr.Bhavani and Sri Suresh Babu, it would

have to be established by them apart from the oral

assertion.

33. One Sri.V.Natarajan was examined as PW.2 to

speak about the execution of the sale deed and passing

of consideration. He states that he knows all the parties

to the suit and he has further stated about the sale

deed being executed and the consideration being paid in

the office of the Sub-Registrar and that he has attested

the sale deed as a witness. According to him,

Smt.Nirmala Murthy has executed the sale deed

voluntarily without any coercion or duress. In the

cross-examination, he states that he is a friend of

Sri.Suresh Babu and pleads ignorance of all matters

relating to the transaction and how much sale

consideration was paid. He says that during the year

2008 the property may be about Rs. 6,000/- per square

46

feet. Hence, his oral evidence would not be of

assistance to prove passing of consideration.

34. One Dr.G.C.Sumathi Kumar was examined as

PW.3. He also states about knowing the family and the

WILL executed giving full rights in favour of

Smt.Nirmala Murthy to sell the property. He states that

Smt.Nirmala Murthy had expressed her desire to sell

the property to her daughter and she will pay part of the

sale consideration to her son and keep the amount in

deposit for her maintenance. The cross examination is

directed at pointing out that he has no knowledge but is

examined to support the case due to his acquaintance

with Dr.Bhavani. From the cross-examination of all the

three witnesses though it is extracted about there being

no proof for the payment of sale consideration and

therefore the sale deed not being a valid one, regarding

the allegation that the sale deed had been obtained by

coercion and fraud when she was in a state of

drowsiness, nothing material has been extracted by way

of admissions from the said witness. Hence, the

evidence tendered on that aspect by Smt.Nirmala

47

Murthy herself and Sri Raghunandan needs to be seen

whether they have established the allegation of threat

and coercion as alleged and suggested as their case.

35. Smt.Nirmala Murthy has been examined as

DW-1. She states that she is getting pension and as

such it is contended that she had no intention of selling

the property though her husband has given the right to

sell the property to third persons with the mutual

consent of children. To state about the fraud played on

her, she having stated about the death of her husband

on 21-03-2002, has further stated that she developed

depression thereafter and got high B.P as also diabeties.

Her daughter Dr. Bhavani was giving treatment and her

grandson Sameera was staying with her in the night.

During the first week of February 2004 she was sent on

South India Tour for 15 days by her daughter and son-

in-law along with Sameera. She alleges that during her

absence, they took away the original documents of the

property. Though they were to leave Tiruchanapalli on

23.02.2004 for their return journey, she fell ill and as

such cancelled the ticket and travelled on 24.02.2004.

48

In that regard, the train tickets and related bills are

marked at Exhs.D-10 to Ex-D-20. Ex-D-20 indicates the

date of journey as 24.02.2004 at 8.30 p.m. from

Tiruchanapalli to Bangalore. Smt. Nirmala Murthy

(DW.1) further states that when she reached Bangalore

at 8.00 a.m. on 25.2.2004 and went to her house, her

daughter Dr. Bhavani quarreled with her and took her

to daughter’s house. She was administered an injection

and several persons had gathered there. She was

thereafter drowsy and unable to understand anything.

They stated that she would be taken to Australia and

was made to sign several papers without being allowed

to know its contents by threatening. She signed them

by reposing faith in her daughter. In the evening she

was taken to some office giving the impression that her

photo is to be taken for VISA purpose. She was

threatened and was not allowed to contact her son Sri

Raghunandan by showing a revolver to her. She further

states that her daughter Dr. Bhavani requested her to

have the tenant vacated from the out house so as to

keep her things as she vacated her tenanted house and

49

was leaving to Australia. She was accordingly allowed to

keep her things in the out-house and even prepared a

rent agreement. According to her, when this was the

position, she burst into tears when she met her son Sri

Raghunandan later and disclosed all the facts. Sri

Raghunandan on verification told her that they have

played fraud and obtained the sale deed.

36. The cross examination of Smt. Nirmala Murthy

(DW-1) is attempted at establishing that even the father-

in-law had good opinion about Sri Suresh Babu; she

had absolute right to sell the property; that she had

maintained contact even after the daughter and son-in-

law had gone to Australia which would show that she

had voluntarily sold. The letter at Exhs.P-14 and 15 is

confronted but she denies it is her handwriting. Hence

she was made to write in Court as per Ex-P-16 to

compare the handwriting and signature. As against

what she had stated in her examination–in-chief about

she being taken forcibly to her daughter’s house and

being made to sign on the papers on threat at gun point

on 25.2.2004 without allowing her to see its contents, in

50

her cross-examination she has stated that she does not

know whether her daughter has taken signatures on

blank papers and used it as Sale deed. She asserts that

her daughter had taken the signature on the blank

papers after nearly one month after the death of her

husband. It cannot be lost sight that her husband died

on 21.3.2002. She thereafter says that she came to

know about the forging of signatures after a year. She

thereafter accepts that the passport was made on

19.03.2004 and she has the same with her and it was

got done by the son-in-law. It is to be noticed that the

date of passport is subsequent to the date of the sale

deed. As against her statement throughout that she was

taken to a office and her photograph was taken and that

was in the guise of VISA office, in her cross examination

she states that she has never gone to Sub-Registrar’s

office and all her signatures were taken in her house.

Then again she says that she does not know whether

the original of Ex-P-1 was typed when she signed it. She

however denies receipt of the sale consideration of

Rs.16,42,000/- but states that a sum of Rs.

51

14,00,000/- is transferred to her account and having

signed the pay order for Rs. 7,21,214/- but not having

received it. But, in her further affidavit evidence she

has explained the same. However in paragraph-6 of her

written statement she has stated that subsequently her

daughter and son-in-law have managed to remit

Rs.27,00,000/- to her account. She admits that her

movements were not restricted by her daughter and

son-in-law.

37. Sri.Raghunandan has been examined as DW-

2. Though he has stated that he is also residing in the

house by relying on Ex.D-23 to D-59 as that relates the

ejectment aspect, that would arise subsequently. In so

far as the sale deed and the fraud being committed, he

has merely echoed what is stated by his mother. In the

cross examination, it has been put to him about the

ability of his mother to read and write Kannada and

Engilish and that she could not have been mislead or

coerced. What is important to be noticed is that he has

admitted that he was in cordial terms with his sister

52

and brother-in-law even after 25.02.2004, though he

refers to an attempt on his life earlier.

38. On noticing the different versions relating to

the sale, in so far as the allegation made by

Smt.Nirmala Murthy about she being drugged and

threatened at gunpoint to sign the sale deed in the

manner as alleged by her, except for her version there is

no other acceptable material or evidence. Even if it is

accepted that she had returned to Bangalore on

25.02.2004 from the South India trip, in the

circumstances herein and her own inconsistent stand

as noticed above her version cannot be believed that her

own daughter Dr. Bhavani had injected her to make her

drowsy and thereafter her husband threatened her at

gunpoint to sign the papers. From what is noticed

above, one of her version is that she has alleged that her

signatures had been obtained by Dr. Bhavani on blank

papers one month after the death of her husband that

would be around end of March 2003 and she had used

them for the purpose of sale deed. Obviously the papers

used for the sale deed were printed only on 19.05.2003.

53

If in fact the blank papers were got signed in the year

2002 as alleged, even then she had ample time to raise

the issue with her son Sri Raghunandan but in her

written statement she states that she told her son in

October 2004 and that too after contending that she

was made to sign on 25.02.2004. Even if the

subsequent version is considered, it is not her plain

case that she had been tricked or mislead into going to

the office of the Sub-Registrar in the guise of taking her

to VISA office and therefore she had no reason to

suspect until it came to the fore. Instead she has alleged

that she was drugged and there was threat at gunpoint

and thereafter she was taken to the Government office.

If that be so, there being an overt act she would have

had the reason to know that something was amiss so as

to atleast complain to her son on the very next day

itself, if not to the law enforcing authorities. If in fact

the son was residing with the mother, as made out to be

the very theory, the daughter having forcibly taken her

itself would not have arisen nor will the question of

taking away the property documents by sending her for

54

the trip have arisen. Even if that was a fact, she had no

difficulty in complaining to him once she was back

home. Let alone that has not been done, but, on the

other hand she states that she allowed her daughter to

keep her things in the outhouse after getting the tenant

vacated and further she attempts to rely on Ex-D-1, the

alleged agreement which is claimed to be dated

01.06.2004. Thereafter the daughter and son-in-law

were in India till 08.06.2004 and several other monetary

transactions had also taken place though it is claimed

that it was for the purpose of education of her

grandson. If in fact there was threat and coercion in the

manner as stated, where is the reason for cordiality

thereafter? Though she states that subsequently after

some time when she met her son she burst into tears,

she has not stated the approximate period when she

met him in the evidence but in the written statement it

is said October 2004 i.e., four months after Dr.Bhavani

left to Australia. When it is being maintained by both of

them i.e., Smt. Nirmala Murthy and Sri Raghunandan

that the son is also in joint possession, where is the

55

question of meeting him subsequently after such a long

period? But, the son, in his suit has pleaded the date of

cause of action as 20.06.2006 when he was appraised of

the sale which is a long period of 2 years and 4 months

from the date of sale. Whether any person would have

remained quiet if the sale deed was obtained against her

will and that too when she had known that she had

signed the papers in drowsiness when she was not

allowed to see the papers under threat at gunpoint?

Hence, notwithstanding the consideration of the point

regarding the validity of the sale deed in question which

would be adverted to hereinbelow in the facts of the

present case as it ought to be in accordance with the

WILL, the allegation of fraud and coercion committed by

Dr. Bhavani and Sri Suresh Babu in the manner as

alleged cannot be accepted. In that view, the decision in

the case of Mst. Sethani –vs- Bhana (1993 Supp (4)

SCC 639) relied on by the learned counsel for Smt.

Nirmala Murthy would also not be of assistance. Point

no.(ii) is therefore held in the negative.

56

39. While adverting to consider point No (iii) which

is raised above, the extent of the evidence relating to

execution of sale deed and passing of sale consideration

noticed above also would be relevant. From the same

and also from the conclusion reached on Point No. (ii), it

could be deduced without doubt that Smt.Nirmala

Murthy had the knowledge that she had executed the

sale deed. But, the question is whether the sale deed

executed in such manner should be considered valid if

it is done in the manner contrary to the intention or

desire of the Testator. From the assessment of the

entire material on record, it would be clear that though

Smt.Nirmala Murthy may not have had any dishonest

intention, she appears to be torn between the two

siblings and the motherly innocence has made her to

identify herself with the daughter when she was around

and has done all that was possible to help her.

Thereafter, she has identified herself with the son as he

is around, being unable to face him when he has

confronted her about the sale and about his entitlement

in such event. Whatever be that position, Smt.Nirmala

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Murthy was required to act in respect of the property as

provided under the WILL which is a solemn document

as the person executing the same would not be available

to implement the same. It is in that regard it needs to be

examined whether the sale deed dated 25.02.2004

executed by Smt. Nirmala Murthy is as per the intention

or the desire expressed by the Testator.

40. In the instant case, while answering Point

No.(i) hereinabove, I have examined the WILL dated

07.06.1995 (Ex-P-1) and arrived at the conclusion that

the intention of the Testator is that Smt. Nirmala

Murthy would have absolute right over the property but,

if she decides to honour the desire of the Testator to sell

the property during her lifetime, then she would have to

sell the property in a transparent manner and divide the

sale proceeds amongst both the children though the

manner of division would be at her discretion. In that

regard, in her evidence, she has stated that she did not

have the intention to sell the property. But, though she

has failed to establish that the sale deed was obtained

by fraud, the daughter and son-in-law having admitted

58

that they were aware of the WILL dated 07.06.1995 and

its contents they were also required to honour the

intention and desire of the Testator but, could not have

proceeded to secure the sale deed by keeping Sri

Raghunandan in the dark. When absolute right to sell

was given, in my view, there was no impediment to sell

it to the daughter or even to the son but in such case, it

should have been even more transparent with the

consultation of all since one would have kept the

property and the other should have known the share of

money he or she would get and the interest of

Smt.Nirmala Murthy also was required to be

safeguarded.

41. Learned Counsel for Dr.Bhavani and Sri.

Suresh Babu in order to justify the manner in which the

sale deed was executed and to contend that it was a

conscious decision of Smt. Nirmala Murthy laid much

emphasis on Ex.P-17 and the additional document i.e.,

the alleged E-mail which is said to have been written by

Smt. Nirmala Murthy to show that she had knowingly

sold the property and that she had repeatedly

59

mentioned about keeping it as a closely guarded secret

from her son. In that regard, the learned counsel for

Smt. Nirmala Murthy on filing objection to I.A.

No.1/2012 filed under Order XLI Rule 27 of CPC has

also relied on several decisions of this Court and the

decision of the Hon’ble Supreme Court in the case of

Arjan Singh –vs- Kartar Singh (AIR (38) 1951 SC

193) and in the case of Natha Singha and Others –vs-

The Financial Commissioner, Taxation and Others

(AIR 1946 SC 1053) with regard to the manner of

exercise of discretion to receive additional documents

and that it cannot be received as a matter of course.

The learned counsel for Dr. Bhavani has on the other

hand relied on the decision in the case of Billa Jagan

Mohan Reddy and Another –vs- Billa Sanjeeva

Reddy & Others (1994 (4) SCC 659) and in the case of

North Eastern Railway Administration –vs-

Bhagwan Das (D) by LRs (AIR 2008 SC 2139) in

support of allowing the application. Having considered

both the sets of decisions, though it is clear that this

Court can receive the same if it is material for decision

60

of the case, on perusing the additional documents, I am

of the opinion that even if the same are taken on record,

it cannot make a difference to the decision since I have

already arrived at the conclusion that even if she has

executed the sale deed knowingly, it should be in

accordance with the WILL and not in a clandestine

manner. Hence, the said documents are not necessary

to be taken on record.

42. In any case, the learned counsel for Dr.

Bhavani has placed vehement reliance on Ex. P-17

which is said to be a letter addressed to the son Sri

Raghunandan by Smt. Nirmala Murthy but was torn,

which was restructured and produced. The said letter

is disputed by Smt. Nirmala Murthy and as such Ex.P-

16 is got written in Court to compare the handwriting.

Even if such letter as at Ex.P17 was genuine and even if

admitted, her impression about her son or referring to

the ill treatment meted out to the father would not

matter, when she chooses to sell the property to honour

the desire of her husband. When the Testator himself

has not excluded the benefit to his son, the mother

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could not have excluded the benefit to the son if she

chooses to sell the property as the desire of the Testator

is that his son also should get a portion of the sale

consideration. It was no doubt open for Smt. Nirmala

Murthy to openly declare that she is the absolute owner

as per the WILL and deal with the same as she desired

and it was not necessary to do it clandestinely in league

with the daughter alone and keep it as a guarded secret.

If Dr. Bhavani and Suresh Babu were of the opinion

that she was selling it as per the desire of the Testator,

then there was no need for them to keep it as a secret to

be hidden from Sri Raghunandan and justify the same

by contending that Smt. Nirmala Murthy had written

that it should not be disclosed. Then, it would be clear

that they had the common intention of depriving the

benefit to Sri Raghunandan. Further, it does not stand

explained as to the reason for mentioning the earlier

WILL in the sale deed and not the last WILL. On the

other hand, if it was being sold to divide the sale

proceeds between the son and daughter as per the

desire of the Testator, even if it was by selling to the

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daughter, such arrangement could have been made with

the concurrence of the son Sri Raghunandan and

everything could have been done in a transparent

manner including protecting the right of Smt. Nirmala

Murthy to reside therein.

43. It is in that context, the payment of the sale

consideration also would arise to find out whether it

was a bonafide and valid transaction. It is strange that

such a huge figure of Rs.16,42,000/- which is also

claimed to be the full sale consideration is being

asserted to have been paid by cash and that too in the

manner as stated by Sri Suresh Babu. The

endorsement on the reverse of the front sheet of the sale

deed dated 25.02.2004 is pointed out to contend that it

has been paid as recorded therein. It no doubt reads

that the execution and receipt of sale consideration is

admitted. That is a regular format to which the figure of

Rs.16,42,000/-is incorporated. When there is serious

dispute regarding payment and when there is

relationship between the parties and yet when it is

contended that it was paid, presumptive endorsement

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would not be sufficient, more particularly when it is

claimed that the amount was paid before the Sub-

Registrar. The endorsement is not to that effect that it

is paid in his presence nor does the body of the sale

deed state that it is paid in the presence of the Sub-

Registrar. Instead it reads that it is paid in the

presence of the witnesses. Hence, the burden of

establishing payment of the sale consideration becomes

onerous on the purchasers when in the suit filed by the

son, the vendor Smt. Nirmala Murthy examines herself

as DW-1 and denies receipt of sale consideration.

44. To establish payment, PW-1 has stated that he

collected the cash by loan and carried it in a big bag to

the Sub-Registrar’s Office and paid it to Smt. Nirmala

Murthy in the presence of the Sub-Registrar. One of the

witnesses to the sale deed who was examined as PW-2

has stated that the sale consideration was paid by cash

in the office of the Sub-Registrar, but in his cross-

examination he states that he does not know how much

sale consideration was paid. In such circumstances,

several questions would arise. If actually the entire sale

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consideration was paid by cash and when the parties

were related and they had left from the same place to go

to the Sub-Registrar’s office and when at that point, the

relationship was good as per the daughter and son-in-

law, was it necessary to carry the cash to the

Sub-Registrar’s office? Instead an appropriate receipt

could have been obtained and payment could have been

admitted. Further, PW-1 in his evidence was categorical

in stating that after the registration Smt. Nirmala

Murthy went her way all by herself, though he states

that it was not 7.30 p.m. at that time. The print on the

sale deed reads as 05.27 p.m. It would have taken

some more time thereafter and even if it is assumed that

it was around 5.45 pm or 6 pm when the formalities

were over, if in fact she was carrying a huge amount of

Rs. 16,42,000/- by cash in a bag, would the daughter

who was there allowed her 65 years old mother to go her

way all by herself without bothering about her safety

and security ? In that context, the version put forth

does not appear convincing and the son-in-law and

daughter should have shown that they had the resource

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or the origin of the source. Further, such huge amount

could not have disappeared without a trace.

Admittedly, the daughter had shifted her things to the

house and had also stayed till they went to Australia

during June 2004, by which time she should have

known from the mother as to how the money was

utilised and atleast this aspect should have been

brought before the Court to show where it has been

invested by the mother. In such event, the daughter

and son-in-law have failed to prove that the sale deed

was a result of payment of the valuable consideration

and the probabilities also do not support their case.

45. If really Sri Suresh Babu was in possession of

such huge cash resources, it is difficult to understand

about the necessity to borrow loan immediately

thereafter on the security of the same property. It

cannot be a sheer coincidence that a nearly matching

figure of Rs.14,00,000/-was secured as loan on

21.05.2004 and deposited to Smt. Nirmala Murthy’s

account and another sum of Rs.7,21,214/- on

03.06.2004. Though the second payment is disputed,

66

the first one is admitted but it is contended on behalf of

Smt. Nirmala Murthy that it was for their son Sameer’s

education. By relying on the pass book at Exhs.P-22 to

24 and Exhs.P-25 and 26, Dr. Bhavani and Sri Suresh

Babu have shown that they hold a joint account with

Sameer and about his education loan. Therefore,

amount transferred cannot be for education purpose.

On that score, the onus was on Smt. Nirmala Murthy to

establish as to how it was spent on her grandson which

burden has not been discharged by her. Further Smt.

Nirmala Murthy though has contended that the sum of

Rs.7,21,214/- has not been received by relying on pass

book at Ex.D.63, the relevant period is not indicated

therein. She has on the other hand marked her own

letter at Ex.D64 as if Dr. Bhavani owed her

Rs.7,50,000/- and produced the pay order at Ex.D65 to

imply it is that amount and the withdrawal memo at

Ex.D66. Smt. Nirmala Murthy having received the

amount is not truthful. Though P.W.1 had contended

that Dr. Bhavani had given a further sum of

Rs.10,00,000/-, the Cheque dated 25.12.2006 has not

67

been encashed and is at Ex.D.72. It is also stated that

the payment was stopped since there was dispute by

then.

46. The learned counsel for Dr. Bhavani made

reference to the reverse side of the Cheque (Ex.D72) to

point out the endorsement about the same being final

settlement as payment for the property concerned and

such additional payments were made due to

intervention of Mediators. The said Cheque no doubt

has not been encashed but, it would show that the sale

consideration was being paid subsequently without

establishing the cash payment, but such transaction is

not envisaged under the WILL. Therefore, on analysing

the above materials, the fact that Smt. Nirmala Murthy

has subsequently received atleast a sum of

Rs.21,21,214/- on account of the transaction

subsequent to the sale deed appears probable and in

the written statement it is admitted as Rs.27,00,000/-.

But as on the date of the sale deed, it is not established

that any consideration was paid. The totality of the

evidence and the circumstance viewed from the

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touchstone of preponderance of probability will show

that Smt. Nirmala Murthy has allowed the sale to

happen without receiving the sale consideration, by

aiding the subsequent payment but has realised the

folly when the interest of Sri Raghunandan was ignored

and when that came to the fore. Though some amount

has been received by her subsequently, the same

cannot ratify the transaction when the same had been

done in a manner which was contrary to the intention

or desire of the Testator unless Smt.Nirmala Murthy

and Sri Raghunandan agree to the same. When the

same was not established as the correct price, it was

not as per the WILL and when Sri Raghunandan was

not given any portion, the sale would not be valid to

bind Sri Raghunandan. Smt. Nirmala Murthy would

however remain liable to repay the same to her daughter

and Son-in-law and have the transaction reversed. Dr.

Bhavani and Sri Suresh Babu would be entitled to

recover the amount from Smt. Nirmala Murthy with its

incidents and consequences if any, but certainly

cannot derive absolute right under the sale deed which

69

is contrary to the desire of the Testator and Sri

Raghunandan’s share will not be effected. Point No.(iii)

is also held in the negative.

47. Though I have arrived at the above conclusion,

what is to be noticed is that Smt. Nirmala Murthy

herself has not sought for declaring the sale deed dated

25.02.2004 as null and void or to hold that it is not

binding on her by filing a suit or raising counter claim

in the ejectment suit. However, when in the

circumstances of the case it is found that the sale deed

is executed in a manner where her own right which has

been granted to her under the WILL dated 07.06.1995

has been defeated probably due to the position in which

she was placed, more particularly when Dr. Bhavani

and Sri Suesh Babu being the family members were

aware of the WILL, ejecting her from the property based

on such sale deed which is obtained contrary to the

WILL would not arise. This would be moreso when they

themselves have contended that she chose to sell it to

them with the intention that she can continue to reside

therein. The question however is as to the nature of

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relief prayed by Sri Raghunandan in O.S.No.6341/2006

and whether they could be granted and whether the

recast issues could have been answered in such manner

when the rights of the parties are guided by the WILL.

Hence, it is necessary to notice the prayer made in

O.S.No.6341/2006, which reads as hereunder:

(a) For a decree of declaration, declaring that the 1st

defendant and the 2nd defendants are disentitled

to execute any registered sale deed in favour of the

3rd defendant;

(b) For a decree of declaration, declaring that the

plaintiff has a share in the schedule immovable

property along with the 1st defendant and the 1st

defendant is only entitled for a life interest in

respect of the Schedule immovable property;

(c) For a decree of declaration, declaring that the

entitlement of the plaintiff is to sell the property

along with the 1st defendant and from out of the

sale proceeds to pay an amount of Rs.2,00,000/-

more than the share of the 2nd defendant to the

plaintiff, in terms of the Will of late M. Srinivas

Murthy and to make payment of Rs.50,000/- to

Sameera, the grand son of the Testator i.e. M.

Srinivas Murthy;

(d) For a decree declaring that the disentitlement of

the 1st defendant to get any share or any right or

alienate the Schedule Property;

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(e) For a decree of permanent injunction, restraining

the 2nd and 3rd defendants, from alienating,

encumbering or creating, third party rights and to

dispossess the plaintiff and the 1st defendant in

their lawful possession.

48. While noticing the prayer and the issues

framed and recast, the opinion expressed by me herein

on Point No.(i) is to be kept in view and the extracted

portion of the WILL dated 07.06.1995 is to be kept in

perspective. At the cost of repetition, it is extracted

again hereinbelow for comparing it with the prayer

made and to consider whether the relief granted to the

extent as done by the Court below is justified.

“After my death, my wife Smt. Nirmala

shall be sole legal and rightful heir over my

immovable and movable property and she will

have every right and authority to sell, mortgage

and lease my house or totally bequeath it to

anybody who take care of her in her last days,

and old age also.

The decision of my wife Smt. Nirmala is

supreme in this matter and none of my children

i.e., Bhavani and Raghunanda have any right to

question my wife, put unjust claim, obstruct or

72

put any obstacle for the manner my wife deals

with my property.

It is my desire that the house should be

sold and sale amount be divided among my

daughter and my son as per the decision of my

wife. My wife shall endev (sic) to sell the (sic)

during her lifetime.

In case my wife is unable to sell the house

during her lifetime, my daughter shall be the

seller of the house and she should (sic) the

house mutually with my son Raghunanda.”

49. The prayer (b) made to declare that Sri

Raghunandan has a share in the property along with

the mother and that the mother has only life interest

would amount to rewriting the WILL since the first part

extracted above would show that the intention of the

Testator is to make Smt. Nirmala murthy as the sole

owner of the property. The word ‘intention’, as per the

dictionary means purpose; plan; aim. The desire of the

Testator is that she should sell and divide as per her

decision. The word ‘desire’ as per dictionary means a

deep wish or want. When there is clear distinction

between ‘intention’ and ‘desire’, it was for Smt. Nirmala

73

Murthy to exercise such option insofar as the desire

expressed. Hence, granting prayer (b) would not arise.

The grant of prayer (c) would arise only in a situation

after the lifetime of Smt. Nirmala Murthy and if the

property remains intact at that stage as that is the

second part of the WILL which will come into force only

at that stage. The prayer (d) sought is certainly

contrary to the intention of the Testator for the reasons

indicated above. Prayer (a) does not arise in the

circumstances. However, keeping in view the

circumstance that Smt. Nirmala Murthy has also

supported the case of Sri Raghunandan with regard to

the execution of the sale deed and supported the case of

joint residence and such right being under Smt. Nirmala

Murthy, the prayer (e) alone is liable to be granted in the

form the prayers are framed.

50. Thus, keeping in view the conclusion that Smt.

Nirmala Murthy has absolute right and in view of the

stand taken by her, the Court below also has not

granted the entire relief but has decreed the suit in

O.S.No.6341/2006 in part by moulding the relief.

Though, I have herein arrived at the conclusion that

74

fraud has not been established and have held that

certain amount has been paid subsequently, the

irregular nature of the transaction is held contrary to

the intention and desire expressed in the WILL. Even in

such circumstance the moulded relief granted by the

Court below allowing the right to Smt. Nirmala Murthy

as per the WILL is justified. Even though not

fraudulent, since I have also arrived at the conclusion

that the sale deed is contrary to the intention of the

WILL, the limited relief granted to the effect that the sale

deed will not bind Sri Raghunandan in any event will

not call for interference. However, the findings to the

effect that there was fraud, coercion and

misrepresentation shall stand set aside to remain

commensurate with the findings rendered on the points

raised for consideration herein. Point No.(iv) is

answered accordingly.

51. Notwithstanding the above conclusion and

there being justification in granting the limited relief to

Sri Raghunandan and to Smt.Nirmala Murthy insofar as

the sale deed not binding Sri Raghunandan and

enabling Smt.Nirmala Murthy to continue to occupy the

75

premises, the woes of the parties herein are far from

over. Though no further relief could be granted to either

of the parties keeping in view the scope of the instant

proceedings, before parting, I deem it necessary to make

certain observations though the same may not be in the

nature of directions or a decree. At the commencement

of the analysis, I had observed with regard to the

parties herein not being fair to the Testator. Even at

this stage, each of the parties to this litigation should

realise that at this juncture though a limited relief has

been granted to Sri Raghunandan and Smt.Nirmala

Murthy, the property in question is already under

charge to the Bank from which the loan had been

secured. If that aspect of the matter is to be resolved,

each of the parties herein should answer their

conscience and realise the folly committed by each of

them and once again come together which atleast will

give solace to the soul of the Testator and help it to rest

in peace. In that regard, if in fact even subsequently

Smt.Nirmala Murthy has received certain amounts, an

appropriate arrangement should be entered into

76

between them to provide validity to the sale deed by

consensus or in the alternative to pool back the money

received and have the property discharged from the

Bank and thereafter jointly deal with the property as per

the intention and desire of the Testator if Smt.Nirmala

Murthy chooses to persist with the sale. Even at this

stage, if they do not retrace their steps, it would only

lead to multiplicity of legal proceedings and none of the

parties herein could rejoice the limited success attained

in the present round of litigation.

52. In the result the following:

ORDER

i) IA No.1/2012 filed under Order XLI Rule 27

of CPC is rejected.

ii) Though the ultimate relief granted in

O.S.No.6341/2006 is affirmed, the findings

stand modified in the above manner. To that

extent, RFA No.1888/2011 is allowed in

part.

77

iii) RFA No.1889/2011 is dismissed.

iv) Keeping in view the relationship of the

parties, they shall bear their own costs.

Sd/- JUDGE

Akc/bms