B MANJUNATHA PRABHU Vs. C G SRINIVAS

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 12th july, 2000 made in O S No 32 of 1990 by the Court of the VI Additional city Civil Judge, Bangalore (hereinafter referred to as 'the City Civil judge') granting probate of the Will dated 20th April, 1970 of late C G shastry in favour of the 1st respondent insofar as it relates to property set out in 'a' Schedule given to the plaint The appeal was initially filed by one B Manjunatha Prabhu and during the pendency of the appeal since the original appellant having expired, his legal representatives were brought on record as supplemental appellants l (a) to l (c), by means of Order dated 1st December, 2003

(2.) FACTS of the case may be briefly stated as hereunder the 1st respondent-C G Srinivas filed a petition for probate in P and sc No 61 of 1983 on 21st January, 1983 on the file of the City Civil judge, Bangalore under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act') seeking probate of the Will dated 20th April, 1970 of late C G Sastry In the said petition, the wife and the children of his elder brother, C G Rama Rao were arrayed as respondents 1 (a) to 1 (f) ie, respondents 2 to 7 in this appeal), one other brother, C G Narasimhamurthy was arrayed as respondent 2 (ie, respondent 8 in this appeal), and sister Smt Padma Seshadri and mother Smt Venkatalakshamma were arrayed as respondents 3 and 4 respectively (i e, respondents 9 and 10 in this appeal ). The original appellant late B Manjunatha Prabhu and the respondent 11 in this appeal were arrayed as respondents 5 and 6 The said petition pertained inter aha to half share in the Firm of 'm/s C G Sastry" comprising of hotel Rajmahal, including the building, furniture and all other equipments, No 34 (Old Nos 33-34), Seshadri Road, Bangalore, building bearing No 284-D, 8th Block, Jayanagar, Bangalore, cash due to late C G Sastry in the Firm of 'm/s C G Sastry', cash in Fixed deposits in Allahabad Bank and cash in Current Account and other bank or Banks in the name of deceased C G Sastry and utensils and movables found in the residence of late C G Sastry bearing No 60, S B road, V V Puram, Bangalore Pursuant to the petition filed by the 1st respondent for grant of probate, the City Civil Judge directed issue of notice to the respondents On being served with the Notice issued by the court, respondents 1 (a) to 1 (f) to the petition, filed their objections on 18th October, 1984 opposing the grant of probate and taking serious objections with regard to the allegations made against C G Rama Rao the respondents 2 to 4 in the petition did not contest the proceedings by filing statement of objections However, respondents 5 and 6 filed their objections opposing the grant of probate In the course of the proceedings, the 1st respondent also sought to amend the probate petition by adding the legal representatives of V R Panduranga as respondents 7 (a) to 7 (g) (i e, respondents 12 to 18 in this appeal) since the probate included the property bearing No 284-D, 8th Block, jayanagar, Bangalore, which was set out in 'b' Schedule given to the petition On being served with the notice, while respondents 7 (a), 7 (c)and 7 (d) contested the proceedings, the respondents 7 (b), 7 (e), 7 (f) and 7 (g) remained ex parts. Since some of the respondents referred to above had filed objections and contested the probate proceedings, the same was treated as a Suit as provided under Section 295 of the Act The contentions raised in the probate petition by the petitioner and by the respondents referred to above in their objections, were reiterated by them in the plaint and written statement filed by them

(3.) THE parties in this appeal, in the course of the judgment, will be referred to with reference to their status in the suit It is the case of the plaintiff that he is the youngest son of late C G Sastry, the said C G sastry died on 21st January, 1971, at the time of his death he had left behind him his widow-Smt Venkatalakshamma, the 4th defendant, his three sons, viz , late C G Rama Rao, i e , the husband of defendant l (a)and father of defendants 1 (b) to 1 (f), his second son C G narasimhamurthy, the 2nd defendant, the plaintiff and his sister padma Seshadn, the 3rd defendant as his legal heirs, the deceased C G sastry had executed his last Will and testament in his own handwriting on 20th April, 1970 which was registered in the office of the sub-Registrar, Bangalore (North) Taluk, on the date of the Execution of the Will, the plaintiff was a minor and he had attained majority only on 25th December, 1970, i e , just 21 days before the death of C G Sastry, the said C G Sastry, by his hard work and enterprises built up a very big business in Bangalore which included business in Hotel Industry and Pharmaceuticals, and with a view to bring up his children in the same business, he started a partnership concern in the name and style of "m/s C G Sastry" with his two major sons C G Rama Rao and C G narasimhamurthy under a deed of partnership dated 1st December, 1953 and in the said firm while C G Sastry had four annas share, his two sons were given six annas share each respectively, of the profits of the firm and the said partnership firm was altered by means of another deed dated 15th April, 1957 and the partnership business included the city Medical and General Agency at Chickpet, Bangalore, Hotel tajmahal at Gandhmagar, Hotel Rajmahal, Seshadn Road, Bangalore and Hotel Ambassador at High Grounds, though late C G Sastry had taken only four annas share in the partnership and two of his major sons were given six annas share, the entire capital was subscnbed by him out of his self-acquisition, C G Rama Rao, released himself from the partnership business by a deed of mutual transfer dated 30th June, 1968 in consideration of his getting the absolute right, title and interest in the business and building of Hotel Ambassador at High Grounds, in pursuance of such mutual transfer, late C G Sastry became entitled to six annas share of his eldest son, in addition to his four annas share in the partnership business of M/s C G Sastry, and thereafter C G Sastry continued the partnership business along with his second son C G narasimhamurthy with ten annas share and six annas share respectively, on 1st July, 1969, the said C G Sastry and his second son c G Narasimhamurthy dissolved the partnership, on dissolution of the partnership, C G Narasimhamurthy took over the City Medical and general Agency and Sastry's Hotel at Chickpet, Bangalore and C G sastry became the absolute owner of all the business and immovable properties of the dissolved partnership concern M/s C G Sastry, the said C G Sastry again constituted another partnership business consisting of himself, his daughter Smt Padma and the plaintiff on 1st january, 1970 and as per the terms of the said partnership, while C G sastry had eight annas share, his daughter Smt Padma and the plaintiff had four annas share each, the plaintiff being minor on that date, he was only admitted for the benefit of the partnership, C G sastry by means of his Will dated 20th April, 1970 had bequeathed all his properties, both movable and immovable, to the plaintiff and constituted his mother as executrix of the Will, the properties bequeathed under the said Will were set out in Schedules A, B, C, D and e given to the plaint, it is also asserted in the plaint that prior to the death of C G Sastry on 21st January, 1971, he was ailing for a period of three months prior to 14th November, 1970 and after his demise his elder son C G Rama Rao shifted his entire family to the house of C G sastry at V V Puram and started living with his mother, his brothers and sister, the last rites of the deceased took place at his residence, and on the day of Vaikunta Samaradhana, i e, on the 13th day after the demise of C G Sastry, C G Rama Rao called the plaintiff and his brother, sister and mother for a meeting of the family Council on the first floor of the premises and in the said meeting one Sri Nagesh Rao, who was stated to be well-wisher of the family and who claimed to be a close associate of late C G Sastry spoke for ten minutes consoling the members of the family and took out a sealed cover and handed over the same to C G Rama Rao stating that late C G Sastry had entrusted the said cover to him to be opened only after his demise and on such cover being handed over to C G Rama Rao, C G Rama Rao in the presence of the members of the family opened the cover and produced the short paper measuring roughly 2 inch in length and 6 to 8 inch in breadth and read out the contents of the same loudly, the contents of the said paper showed that C G Sastry had executed the Will dated 14th November, 1970 bequeathing all his assets, both moveable and immovable, to be shared equally by his wife, his children, the plaintiff who had just attained the age of majority was made to believe that the said scrap of paper was a Will, the said document which was styled as a Will was engineered in connivance with Nagesh Rao, and the plaintiff who was the youngest son and who was not very much worldly wise did not suspect that his eldest brother would stoop to the level of fabricating a document which was styled as a last Will and therefore the plaintiff was persuaded to accept the contents of the said Will, the Will purported to have been executed on 14th November, 1970, was a fabricated and got up document, on the basis of which the brothers of the plaintiff, C G rama Rao and C G Narasimhamurthy, gained unfair advantage over the plaintiff by laying a claim for a equal share in all the assets, both immovable and movable, of late C G Sastry