Shankar B vs Sri.Pra. Ba. Shivananda Shivacharya
2023 Latest Caselaw 9285 Kant

Karnataka High Court

Shankar B vs Sri.Pra. Ba. Shivananda Shivacharya on 5 December, 2023

                              1


        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 5TH DAY OF DECEMBER, 2023

                           BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                 R.S.A. NO. 62 OF 2016 (DEC)

BETWEEN:

       B. SHANKAR
       S/O LATE GURUSHANTHAPPA
       AGE 67 YEARS
       R/O TALAGUNDA, JADE HOBLI
       SORAB TALUK, SHIVAMOGGA DISTRICT -577201

                                               ...APPELLANT

(BY SRI.MAHESH R UPPIN, ADVOCATE)

AND:

      SRI.PRA. BA. SHIVANANDA SHIVACHARYA
      MAHASWAMIGALU
      MATADHISHARU YAA PEETADHYAKSHARU
      SHANTHAPURA MATT
      (GRAM TALAGADDE) JADE HOBLI, SORAB TALUK
      SHIVAMOGGA DISTRICT
      REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
      GANGADHARASWAMY
      S/O CHENNABASABAIAH
      AGE 33 YEARS
      R/O TALAGUNDA VILLAGE, HEREMATTA
      JADE HOBLI, SORABA TALUK
      SHIVAMOGGA DISTRICT - 577429
                                              ...RESPONDENT
(BY SRI.R.S.ANKALKOTI & SMT.VIJAYA.M.N, ADVOCATES)
                                  2


     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT       &   DECREE    DATED    31.08.2015   PASSED    IN
R.A.NO.77/2009 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS COURT, SHIVAMOGGA, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED
23.04.2009 PASSED IN OS NO.161/2007 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.) & JMFC, SORABA.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.11.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

The captioned second appeal is filed by plaintiff assailing

the concurrent judgments rendered by the Courts below

wherein plaintiff's suit seeking relief of declaration that the

Will executed by his father is concocted and that plaintiff being

the sole surviving legal heir of deceased father has inherited

the properties of his father and sought for possession of the

suit land.

2. For the sake of brevity, the parties are referred to

as per their rank before the trial Court.

3. The facts leading to the case are as under:

Plaintiff has filed the present suit by contending that he

is the only son to his father Gurushanthappa. The plaintiff

contends that his father died on 11.06.2003. It is the specific

case of the plaintiff that plaintiff in order to obtain benefits

from the Government which was extended only to small

farmers entered into oral partition in 1988 with his father and

suit land was nominally allotted to his father's share. The

plaintiff further pleaded that inspite of oral partition, he along

with his father constituted Undivided Joint Hindu Family and

they were in joint cultivation of the suit land. The plaintiff has

alleged that his father two years prior to his death was

mentally and physically weak and on account of depression

was not competent to enter into any transaction. The plaintiff

further pleaded that his father on account of illness and old

age died at the age of 87. The present suit is filed alleging

that defendant who is appointed as a Priest of Shanthapura

Mutt of Thalagunda Village taking undue advantage of the

mental illness of plaintiff's father by exercising undue influence

has secured the Will on 28.02.2003. The plaintiff alleged that

the alleged Will is secured by undue influence and coercion

and taking advantage of mental illness of plaintiff's father.

The plaintiff also alleged that under the said Will, the house is

bequeathed to the plaintiff's children and this arrangement is

only to showcase that this Will is genuine Will executed by his

father out of free will. The plaintiff also alleged that both the

witnesses to the Will were never acquainted with his father

and therefore, contended that the Will is created by defendant

with the help of these witnesses.

4. The defendant, on receipt of summons, tendered

appearance, filed written statement and stoutly denied the

entire averments made in the plaint. The defendant on the

contrary claimed that there is partition in plaintiff's family in

1988 and from the date of partition, plaintiff and his

father/testator were residing separately and dealt with their

respective properties exclusively. The defendant alleged that

the suit land bearing Sy.No.9 measuring 4 acres 13 guntas

which was exclusively allotted to the testator had every right

to alienate the property. On account of differences between

plaintiff and his father and as the relations were not cordial,

the plaintiff's father has executed registered Will in favour of

defendant/Mutt out of his free Will and in the said Will,

plaintiff's father has bequeathed other properties including

house properties situated at Thalagunda Village and hence,

sought for dismissal of the suit.

5. The trial Court taking cognizance of rebuttal

evidence let in by the defendant, more particularly the

evidence of witnesses to the Will answered issue No.7 in the

negative and held that defendant/legatee has failed to prove

due execution of the Will. The trial Court negatived issue No.7

on the ground that defendant has failed to substantiate that

testator was in sound disposing state of mind and he was

capable of understanding the effect of disposition. The trial

Court held that legatee has failed to dispel the suspicious

circumstances surrounding the disputed will. Consequently,

suit is decreed and defendant is directed to handover

possession of the suit schedule property. The trial Court also

ordered for mesne profits.

6. The defendant feeling aggrieved by the judgment

and decree of the trial Court preferred appeal in

R.A.No.77/2009. The appellate Court as a final fact finding

authority has reassessed the evidence on record. Appellate

Court while examining the reasons assigned by the trial Court

in regard to mental condition of testator, however, was not

inclined to concur with the reasons recorded by the trial Court

on the disputed Will. The appellate Court was of the view that

trial Court has picked up a stray sentence to discard evidence

let in by the defendant relating to proof of Will. The appellate

Court on re-appreciation of evidence was of the view that

merely because testator was found to be suffering from

depression that in itself will not constitute in-competency in

making a testamentary arrangement. The appellate Court

also found that trial Court has stressed more on the ground

that Will is not in favour of Mutt but in favour of defendant.

Referring to the evidence of DWs.2 and 3, appellate Court was

of the view that legatee has succeeded in dispelling suspicious

circumstances surrounding the Will. The appellate Court

further held that there is no counter evidence let in by the

plaintiff which would indicate that defendant had exerted

undue influence on his father as he was visiting the defendant

Mutt. In absence of clinching evidence to substantiate that

plaintiff's father was under the influence of the Mutt, appellate

Court arrived at a contrary view while reassessing the

evidence independently. Appellate Court held that legatee has

succeeded in substantiating and proving the genuineness of

the disputed Will. Consequently, appeal is allowed and suit is

dismissed.

7. Learned counsel appearing for the plaintiff

reiterating the grounds and substantial question of law framed

would vehemently argue and contend that his father had no

valid reasons to bequeath the suit land in favour of defendant

Mutt. He would emphasize on the fact that defendant has

stepped into the witness box and therefore, he would contend

that adverse inference is to be drawn against the legatee. He

would further submit that evidence of attesting witness who is

examined as DW.2 and evidence of scribe who is examined as

DW.3 will not suffice the proof of the Will as legatee has

consciously chosen not to mount the witness box. He would

further contend that onus of proof of Will is always on the

propounder and existence of suspicious circumstances makes

the onus of proof very heavy and such circumstances are

required to be removed by the propounder and therefore, he

would contend that as defendant has not chosen to step into

the witness box, the finding of the appellate Court on proof of

Will suffers from serious infirmities.

8. Learned counsel has highlighted several factors

which would lead to strong doubts in regard to the

genuineness of the Will. Referring to the contents of the Will,

he would point out that no strong reasons are reflected in the

Will to disinherit the only son. He has also brought to the

notice of this Court that testator was admittedly aged 87 years

and was mentally weak and was not having sound mind. He

would further contend that attesting witness is totally a

stranger to his father and there is no evidence to show that at

the time of registration, the contents of Will were read over to

the testator by the Sub-Registrar. He would also point out

that Will was found in the custody of legatee and he got the

Katha changed in his favour which also gives an indication that

there is active participation by the legatee. He would further

contend that defendant has misused his position as Matadipati

of Shanthapura Mutt and therefore, the genuineness of Will

needs to be decided by this Court by reassessing the material

on record surrounding the Will.

9. In support of his contention, he has placed reliance

on the following judgments:

1) Adivekka and Others vs. Hanamavva Kom Venkatesh (Dead) By LRs. and Another - (2007) 7 SCC 91;

2) K.Laxmanan vs. Thekkayil Padmini and Others - (2009) 1 SCC 354;

3) Babu Singh and Others vs. Ram Sahai alias Ram Singh - (2008) 14 SCC 754;

4) Channabasappa Shivappa Sannanagashetti vs. Ningavva Shivappa Sannanagashetti - 2017 (2) AKR 142;

5) Ramamani vs. Sudha and Others - 2021 SCC Online Kar 15806.

10. Per contra, learned counsel appearing for the

defendant however would support the reasons and conclusions

arrived at by the appellate Court while deciding the

genuineness of the Will. Referring to rebuttal evidence, he

would point out that legatee has succeeded in proving the Will.

Referring to the material on record, she would point out that

the evidence on record clearly demonstrates that there was

partition between plaintiff and his father. There is enough

material on record to indicate that plaintiff and his wife have

not taken care of the testator. At the fag end of his life,

testator had a strong desire to bequeath the land in favour of

the Mutt and in absence of contra evidence to demonstrate

that his depression also lead to mental instability, trial Court

erred in disbelieving the Will. She would further point out that

plaintiff is a retired Government Teacher and he was allotted 5

acres of land in a family partition in 1988 which is admitted by

plaintiff. She would vehemently argue and contend that

plaintiff's children are beneficiary under the Will. The testator

has bequeathed house properties in favour of his grandsons

and the suit land is bequeathed in favour of the Mutt.

Referring to the cross-examination of plaintiff, she would point

out that plaintiff has admitted that grandsons name was

mutated to the property covered under the Will. She would

also contend that though plaintiff contends that oral partition

was nominal and the same was intended to avail Government

schemes, she would contend that no supporting documents

are produced to substantiate the said narrative.

11. Heard learned counsel appearing for the plaintiff

and learned counsel appearing for the defendant. I have

given my anxious consideration to the findings recorded by

both the Courts in regard to genuineness of the Will.

12. The onus of proof of Will is on the propounder and

in absence of suspicious circumstances surrounding the

execution of the Will, proof of testamentary capacity and

signature of the testator as required by law is sufficient to

discharge the onus. The legatee has examined the attesting

witness as DW.2 and scribe as DW.3. DW.3 who is the scribe

has stood the test of cross-examination. Nothing worth is

elicited in cross-examination which would lead to doubt in

regard to the genuineness of the Will.

13. On examining the material on record what needs to

be looked into by this Court while examining the divergent

findings on Will is as to whether the propounder has explained

the circumstances which lead the testator to make a

testamentary arrangement to the satisfaction of the Court

before the Will could be accepted as genuine. This Court also

needs to examine as to whether there is an unjust disposal of

the property. This Court also needs to examine as to whether

propounder himself has taken lead part in the making of the

Will under which he has received substantial benefit when

admittedly Will is in favour of the Mutt.

14. Now the next question that needs to be examined

is as to whether the Will can be doubted because the testator

was aged 87 years. As per the plaintiff's version, it can be

gathered that though testator was aged 87 years, he was

visiting the Mutt. This admission will lead to inference that

testator was capable of taking care of himself independently.

Even if testator was found to be suffering from depression

whether that depression has created a dent in his mental

capacity is a question to be looked into by this Court. Merely

because on account of old age, shaky signature, feeble mind

will not in itself constitute existence of suspicious

circumstances.

15. In the present case on hand, the rebuttal evidence

let in by the defendant clearly shows that defendant has

succeeded in discharging his initial onus of proof. This Court is

more than satisfied that defendant has satisfied the

conscience of the appellate Court that the disputed Will is the

last Will of a free and capable testator. The defendant has

succeeded in proving due execution of Will in accordance with

law. The plaintiff's claim that oral partition in 1988 was never

intended and that it was never acted upon and the said oral

partition was to secure Government benefits cannot be

acceded to. The said theory is not substantiated by plaintiff.

The appellate Court being final fact finding authority has

adverted to all the significant details and each minute

instances are scrutinized by the appellate Court to ascertain as

to whether element of suspicious circumstances surrounding

the Will exist in the case on hand.

16. On comparing the reasons and conclusions

recorded by the trial Court and appellate Court, this Court is of

the view that trial Court has not properly appreciated the

evidence let in by the defendant. The plaintiff is a retired

Government Teacher which is not in dispute and in the family

partition, he has retained 5 acres of land. His sons are

bequeathed a residential house which is also the subject

matter of the Will and his sons names are mutated to the

residential house based on the Will. If really plaintiff is the

sole successor as Class-I heir, then in the event of demise of

father, the properties allotted in a family partition to his father

would devolve upon plaintiff as Class-I heir under Section 8.

However, plaintiff has acted upon the Will and got his sons

name mutated to the residential house which is based on the

Will. If plaintiff has accepted the Will insofar as residential

house is concerned, then he is estopped from disputing the

genuineness of the Will.

17. It is trite law that a party cannot be permitted to

approbate and reprobate at the same time. This principle is

based on the principle of doctrine of election. In respect of

Wills, this doctrine has been held to mean that a person who

takes benefit of a portion of the Will cannot challenge the

remaining portion of the Will. The Apex Court in the case of

Bhagwat Sharan (Dead Through legal representatives)

vs. Purushottam and Others1 made an observation that a

party cannot be permitted to "blow hot and cold", "fast and

loose", or "approbate and reprobate". The doctrine of election

is a facet of law of estoppel. In absence of Will, it is only the

plaintiff who would inherit the properties allotted to his father

in a family partition and during the lifetime of plaintiff, his

children would not have any right in the properties allotted to

the testator/father of plaintiff. Therefore, this crucial facts

clearly gives an inference that plaintiff is selectively

questioning the Will.

18. Though learned counsel appearing for the plaintiff

tried to persuade this Court that 5 acres of agricultural land is

a valuable property and if the said 5 acres is denied by

(2020) 6 SCC 387

accepting the Will, the family would be put to irreparable loss,

cannot be acceded to. In interpreting the Will, the primary

task before the Court is to find out the intention of the

testator. It is trite law that Court is entitled to put itself into

the testator's arm chair and then test the disputed Will by

giving due weight to all the words incorporated in the Will. An

attempt should be made to interpret the provisions in such a

manner so that effect could be given to every testamentary

intention contained in the Will. The allegation of undue

influence though pleaded in the plaint, the same is not

substantiated by the plaintiff as it is settled proposition of law

that burden of proof in regard to the alleged undue influence

rests with the accuser. Suspicious circumstances must be

real, relevant and valid and not mere products of a doubting

mind. The determination of what constitutes a suspicious

circumstances depends on the specific facts and circumstances

of each case. If the propounder is able to show that Will

complies with all statutory formalities and that testator signed

it out of his own free will while being of sound mind and aware

of the contents of the Will, the Court has to accept and enforce

the last Will of the testator.

19. The material on record clearly gives an indication

that testator at the fag end of his life found solace in visiting

the Mutt and if reciprocally has taken a decision to bequeath

his land to the Mutt where he spent his fag end of life, the said

last Will has to be given effect to. The Court cannot scuttle

the last wish of the testator who is found to have made a

testamentary arrangement consciously with a specific

intention. All these significant details are dealt with by the

appellate Court. The findings and conclusions recorded by the

appellate Court is based on rebuttal evidence let in by the

defendant. The judgments cited by the learned counsel for

the plaintiff are not applicable to the present case on hand.

No substantial question of law arises for consideration.

20. The additional evidence which is now sought to be

produced by the plaintiff has no relevance to the lis between

the parties and no valid explanation is offered for having cited

these additional documents for the first time before this Court.

In the light of the conclusions recorded by this Court, this

Court is of the view that additional documents are not at all

necessary for effective and complete adjudication of the

controversy between the parties. Accordingly, I.A.No.1/2023

is rejected.

21. For the reasons stated supra, I pass the following:

ORDER

The second appeal is devoid of merits and accordingly,

stands dismissed.

Sd/-

JUDGE

CA