Karnataka High Court
M S Kenchegowda vs M S Subbegowda on 12 December, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 52 OF 2016 (PAR)
C/W
R.S.A NO.153 OF 2016 (PAR)
IN RSA NO.52/2016
BETWEEN:
M S KENCHEGOWDA
AGEDD ABOUT 62 YEARS,
S/O M.K.SHESHEGOWDA,
R/O HALE MUDIGERE, MUDIGERE TALUK,
CHIKMAGALUR DISTRICT - 572 218.
...APPELLANT
(BY SRI.PADMANABHA MAHALE, SR.COUNSEL FOR
SRI.MANOHAR N & SRI.SUSHEELADEVI, ADVOCATES)
AND:
1. M S SUBBEGOWDA
AGED 71 YEARS,
S/O M.K.SHESHEGOWDA,
R/O HALE MUDIGERE, MUDIGERE TALUK
CHIKMAGALUR DIST-572218.
2. M.S.KRISHNEGOWDA
AGED ABOUT 69 YEARS,
S/O M.K.SHESHEGOWDA,
NO. 1415/C, ASHA KIRANA BUILDINGS,
2
SALAGAME ROAD, HASSAN-573201
3. M.S.NARAYANAGOWDA
AGED ABOUT 67 YEARS,
S/O M.K.SHESHEGOWDA,
R/O HALE MUDIGERE,
C/O HVT ADVOCATE, HASSAN-573201.
4. M.S.GOPALA GOWDA
AGED ABOUT 65 YEARS,
S/O M.K.SHESHEGOWDA,
R/O HALE MUDIGERE,
MUDIGERE TALUK,
CHIKMAGALUR DISTRICT-572218.
...RESPONDENTS
(BY SRI.RAVISHANKAR & SRI.H.C.LOKESHWARI,
ADVOCATES FOR R1 & R2;
SRI.CHETHAN.B, ADVOCATE FOR C/R2;
SRI.VINOD.R, ADVOCATE FOR R3;
SRI.PRADEEP NAIK.K, ADVOCATE FOR R4)
THIS RSA IS FILED UNDER SEC. 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 17.10.2015
PASSED IN RA Nos 01/2013 AND 03/2013 ON THE FILE OF
THE II ADDL. DISTRICT JUDGE AT CHIKKAMAGALURU.
DISMISSING RA NO.01/2013 AND 03/2013 FILED UNDER
ORDER XLI RULE 1 OF CPC., AND CONFIRMING THE
JUDGMENT AND DECREE DATED 7.11.2012 PASSED IN OS
NO.206/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL
JUDGE, CHIKMAGALUR.
IN RSA NO.153/2016
BETWEEN:
M.S.GOPALA GOWDA
S/O LATE M K SHESHEGOWDA
3
AGED ABOUT 66 YEARS
R/A HALE MUDIGERE
MUDIGERE TALUK
CHIKKAMAGALUR-577137
...APPELLANT
(BY SRI.PRADEEP NAIK K, ADVOCATE)
AND:
1 . SRI M.S.SUBBEGOWDA
S/O LATE M K SHESHEGOWDA
AGED ABOUT 72 YEARS
R/A HALE MUDIGERE VILLAGE
MUDIGERE TALUK
CHIKKAMAGALUR DISTRICT-577137
2 . SRI S KRISHNEGOWDA
S/O LATE M K SHESHEGOWDA
AGED ABOUT 70 YEARS
R/A HOUSE NO.1415/C
ASHA KIRANA BUILDINGS
SALAGAME ROAD
OPP:BRAHMIN STUDENTS HOSTEL
HASSAN-573201
3 . SRI M S NARAYANA GOWDA
S/O LATE M K SHESHEGOWDA
AGED ABOUT 68 YEARS
R/A HALE MUDIGERE
KASABA HOBLI
MUDIGERE TALUK
CHIKKAMAGALUR DISTRICT-577137
4 . SRI M S KENCHEGOWDA
S/O LATE M S SHESHEGOWDA
AGED ABOUT 63 YEARS
4
R/A HALE MUDIGERE
KASABA HOBLI
MUDIGERE TALUK
CHIKKAMAGALURU DISTRICT-577137
...RESPONDENTS
(BY SRI.A.RAVISHANKAR, ADVOCATE FOR R1 & R2;
SRI.CHETHAN B, ADVOCATE FOR C/R2;
SRI.VINOD.R, ADVOCATE FOR R3;
R4 SERVED BUT UNREPRESENTED)
THIS RSA IS FILED U/S. 100 R/W ORDER XLII RULE
1 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD
17.10.2015 PASSED IN R.A.NO.01/2013 ON THE FILE OF
THE II ADDL. DISTRICT JUDGE, CHIKKAMAGALURU,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DTD: 07.11.2012 PASSED IN
OS.NO.206/2007 ON THE FILE OF THE ADDL. SENIOR
CIVIL JUDGE, AND JMFC., CHIKMAGALORE.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 27.11.2023, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
RSA.No.153/2016 is filed by defendant No.2 and
RSA.No.52/2016 is filed by defendant No.3,
questioning the concurrent judgments rendered by the
Courts below in granting 1/5th share each to plaintiffs
1 and 2 by negativing the Will set up by defendants.
2. For the sake of convenience the parties are
referred to as per their rank before the trial Court.
3. The family tree of plaintiffs and defendants
is as under:
M.K.Sheshe Gowda
|
Duggamma @ Kenchamma
|
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| | | | |
M.S.Subbegowda M.S.Krishne Gowda M.S.Narayana Gowda M.S.Gopala Gowda M.S.Kenche Gowda
(Pltf No.1) (Pltf No.2) (Def No.1) (Def No.2) (Def No.3)
4. Plaintiffs instituted the suit seeking relief of
partition and separate possession of their 1/5th share
each over the suit "A" and "B" schedule properties.
Plaintiffs contend that there was a partition in the
family and in the said partition their father and mother
were allotted suit schedule properties. Plaintiffs have
contended that their mother Duggamma died on
10.1.2006 and their father namely M.K. Sheshegowda
died on 23.2.2006. The present suit is filed alleging
that defendants 2 and 3 are asserting exclusive right
over the suit schedule properties based on the alleged
Will dated 13.2.2006.
5. The defendants on receipt of summons
tendered appearance and filed written statement. The
defendants 2 and 3 who are the legatees however
claimed that their father Sheshegowda has disposed
of schedule A properties by way of a testamentary
arrangement and therefore, asserted exclusive title by
contending that their father has bequeathed suit
schedule A properties in their favour and hence,
sought for dismissal of the suit.
6. Plaintiffs to substantiate their claim have
let in oral and documentary evidence by examining
P.Ws.1 and 2 and in all produced eleven documents.
Defendants examined first defendant as D.W.1 and
defendant No.2 as D.W.2 and defendant No.3 as
D.W.3 and attesting witness to the Will was examined
as D.W.4.
7. The trial Court having examined the
pleadings, oral and documentary evidence answered
additional issue in the negative and while doing so
held that defendants 2 and 3 have failed to prove
execution of the Will dated 13.2.2006.The evidence of
attesting witness to substantiate due execution of the
Will under challenge was meticulously examined by
the trial Court. The trial Court took note of the fact
that defendant No.2, who is also a beneficiary under
the Will, had not only participated in preparing the Will
but he is also the scribe. Trial Court also found that
Will is executed just ten days prior to the death of
testator. It is in this background, trial Court
concluded that the Will vide Ex.D5 is not genuine Will
and the same is surrounded by suspicious
circumstances and the legatees have failed to dispel
the suspicious circumstances surrounding the Will and
accordingly, decreed the suit.
8. Defendants 2 and 3 feeling aggrieved by
the preliminary decree drawn by the trial Court filed
two independent appeals in R.A.Nos.1/2013 and
3/2013. Appellate Court has independently examined
the Will under challenge and the evidence adduced by
defendants 2 and 3 in support of proof of Will vide
Ex.D5. Appellate Court has also taken cognizance of
the fact that defendant No.2 is a practicing advocate
and he being a beneficiary has prepared the Will and
signed as a scribe. It is in this background, the
appellate Court was not inclined to interfere with the
reasons assigned by the trial Court while disbelieving
the Will and has accordingly, dismissed both the
appeals.
9. Learned Senior counsel Sri. Padmanabha
Mahale, by taking this Court through the cross-
examination of P.W.1 would vehemently argue and
contend that the admissions elicited in the cross-
examination of P.W.1 clearly establish that plaintiffs
were well aware of the testamentary arrangement
made by their father and have admitted the same.
Learned Senior Counsel would further elaborate and
point out the circumstances that led to disposing of
the properties allotted to the testator in a family
partition by way of a testamentary arrangement. He
would point out that plaintiff No.2 has purchased
some of the properties allotted to his father and
therefore, it was the wish of the testator that the suit
schedule properties should go to defendants 2 and 3.
He would further contend that though some of the
items are conveyed by the testator to plaintiff No.2,
no sale consideration is paid and therefore, he would
contend that the testamentary arrangement excluding
plaintiffs does not in itself constitute a suspicious
circumstance. Placing reliance on judgment rendered
by the Apex Court in the case of Pentakota
Satyanarayana and others .vs. Pentakota
Seetharatnam and others1 that active participation
by the beneficiary will not in itself constitute
suspicious circumstance or create doubt about
testamentary capacity or genuineness of Will. Learned
Senior Counsel would point out that the testator had
reasons to exclude plaintiffs and would contend that
the concurrent findings recorded by both the Courts
on these issues suffer from serious infirmities and
therefore, calls for interference by this Court.
AIR 2005 SC 4362
10. Per contra, learned counsel appearing for
plaintiffs repelling the contentions canvassed by the
learned Senior Counsel however would vehemently
argue and contend that both the Courts on examining
the Will and the evidence in support of proof of Will
have concurrently held that the Will is not proved by
defendants 2 and 3. Referring to Ex.P10, he would
point out that even prior to death, it is the second
plaintiff who had taken the testator to the hospital and
he would persuade this Court to examine Ex.P10,
which clearly reveals that it is the second plaintiff who
had taken the testator to the hospital. He would place
heavy reliance on Ex.P11, a medical certificate issued
by the Hospital wherein the doctor has clearly opined
that testator is not keeping good health. Learned
counsel appearing for plaintiffs would reiterate the
circumstances under which the alleged Will is
prepared. Referring to Ex.P10, he would point out
that the testator was admitted to hospital on 3.1.2006
and discharged on 8.1.2006. He would also bring to
the notice of this Court that plaintiffs' and defendants'
mother died on 10.1.2006, the Will is prepared on
13.2.2006 and testator has died on 23.2.2006.
Referring to these significant details, he would point
out that testator was aged 92 years and the fact that
he died within ten days of the execution of the alleged
Will clearly establishes that the testator was not
capable of disposing of his properties. He would point
out that both the Courts have held that the
propounders of the Will have failed to demonstrate
that the testator was capable of executing the Will
and was in a sound disposing mind and had the
capacity to comprehend the extents of his properties
and that he was excluding his other sons in the
properties allotted to him in the family partition. He
would also point out that testator who was aged 92
years could not have furnished all details at one shot
and an impression is given that Will is drafted by
defendant No.2 at the instructions of the testator. He
would contend that this appears to be too unnatural
having regard to his age and health condition.
11. Heard the learned Senior Counsel
appearing for defendants 2 and 3 and learned counsel
appearing for plaintiffs.
12. It is not in dispute that defendant No.2 who
is a practicing advocate and is one of the beneficiary
under the Will has written the Will. The testator was
aged 92 years. Ex.P10 is the medical certificate which
clearly indicates that he was admitted on 3.1.2006
and discharged on 8.1.2006. Plaintiffs' and
defendants' mother (testator's wife) died on
10.1.2006. Ex.P11, is the medical certificate issued
by the Jayashree Nursing Home wherein the doctor
has opined that on account of lack of oxygen, the
testator is suffering from disorientation. The doctor
has clearly opined that his condition at the time of
discharge has remained same. Testator dies within
ten days of execution of the alleged Will.
13. If these significant details are looked into,
this Court has to examine as to whether the finding
recorded by both the Courts on additional issue
warrants any interference. Though, learned Senior
Counsel while justifying the participation of defendant
No.2 has placed reliance on the judgment rendered by
the Apex Court in the case of Pentakota
Satyanarayana and others(supra), the principles
laid down by the Apex Court in the above cited
judgment have no application. There is a thin line of
distinction between a propounder participating in the
execution of Will and playing an active role in the
execution of the Will and receiving a substantial
benefit under it.
14. The Will under dispute also needs to be
examined in the context of the status of the parties,
the age of the testator and the prevailing
circumstances in the family as on the date of
execution of the alleged Will. The testator lost his
wife on 10.1.2006 and this alleged Will is dated
13.2.2006. Therefore, defendant No.2 who is a
practicing advocate and who is one of the beneficiary
under the Will is found to be the scribe of the alleged
Will. When the propounder of a Will stands to gain a
substantial benefit thereunder, such a circumstance
inherently raises suspicion regarding the impartiality
and genuineness of the testamentary instrument.
Defendant No.2 is not only the son of the testator but
he is a practicing advocate and therefore, his active
participation clearly suggests a potential conflict of
interest, creating an environment where the
propounder's actions and influence could unduly sway
the testator's decision-making process.
15. In legal parlance, this situation may be
perceived as giving rise to a prima facie case of
suspicious circumstances surrounding the Will. The
substantial benefit accruing to the propounder
introduces an element of self-interest and therefore,
both the Courts were justified in taking cognizance of
this relevant aspect.
16. The medical certificates at Ex.P10 and 11
coupled with the fact that he had lost his wife at that
relevant point of time also gives an indication that the
testator was not capable of giving detailed outlines of
the manner in which his estate is to be distributed.
The evidence adduced by the plaintiffs clearly creates
a doubt in the mind that the testator had a sound
disposing state of mind and the environment
was conducive where he was capable of taking
independent decisions without anybody's influence.
The material on record however, on the contrary,
clearly reveals that the alleged Will at Ex.D5 is not a
free Will voluntarily executed by father of plaintiffs
and defendants 2 and 3.
17. The trial Court while answering additional
issue in the negative relating to proof of Will has
detailed the suspicious circumstances pointed out by
the plaintiffs at Paragraph 25 of the judgment. Trial
Court on meticulous examination of evidence relating
to proof of Will has come to the conclusion that the
propounders of the Will have failed to satisfy the
conscience of the Court with removal of suspicious
circumstances. Trial Court has meticulously adverted
to the evidence let in by plaintiffs to counter the
genuineness of Will. Trial Court has taken into
consideration the quality and nature of each of the
facts which would have a bearing on the genuineness
of the disputed Will. On examining the cumulative
effect and impact of all relevant considerations, the
trial Court has come to the conclusion that Will is
shrouded with suspicious circumstances. Appellate
Court has also independently assessed the evidence
relating to proof of Will. Having independently
assessed, the appellate Court has proceeded to concur
with the reasons assigned by the trial Court on proof
of Will.
18. If these significant details are looked into,
this Court is of the view that no substantial question
of law arises for consideration.
19. Accordingly, I proceed to pass the
following:
ORDER
The appeals are dismissed.
Sd/-
JUDGE
*alb/-
