Kerala High Court
Savitha vs N. Venkatakrishna Bhat on 1 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 1ST DAY OF JULY 2024 / 10TH ASHADHA, 1946
MFA (SUCCESSION) NO. 13 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 21.10.2016 IN OS NO.3
OF 2014 [PETITION ORIGINALLY NUMBERED AS PROBATE
O.P.NO.73/2013 ON THE FILE OF THE DISTRICT COURT, KASARAGOD]
APPELLANT (3RD RESPONDENT/3RD DEFENDANT):
SAVITHA, AGED 58 YEARS
W/O.D.SUNDARA BHAT,RESIDING AT KEDUMBADI HOUSE,UBARADKA
VILLAGE,SULLIA POST, SULLIA TALUK AND D.K.DISTRICT.
BY ADVS.
SRI.T.SETHUMADHAVAN (SR.)
SRI.K.JAYESH MOHANKUMAR
SRI. KODOTH PUSHPARAJAN
SMT.VANDANA MENON
RESPONDENTS (PETITIONER/PLAINTIFF & RESPONDENTS/D1, D2 & D4
TO D7):
1 N. VENKATAKRISHNA BHAT
AGED 63 YEARS
S/O.LATE SHAM BHAT,R/AT NIDUGALA HOUSE OF
NIDUGALA,NEERCHAL VILLAGE AND POST, KASARAGOD TALUK AND
DISTRICT.
2 SHARADHA
AGED 81 YEARS
W/O.LATE SHAM BHAT,R/AT NIDUGALA HOUSE OF
NIDUGALA,NEERCHAL VILLAGE AND POST, KASARAGOD TALUK AND
DISTRICT.
3 GOWRI
AGED 61 YEARS
W/O.K.GANESH SHARMA,R/AT K.K.B.FARMS, BOLUBAIL,PAICHAR
2
MFA(SUCC)No.13 of 2017
VILLAGE, SONANGERI POST,SULLAI, SULLIA TALUK AND
D.K.DISTRICT.
4 SASHIKALA
AGED 58 YEARS
W/O.M.GOPALAKRISHNA BHAT, R/AT VISHNUMOORTHYTEMPLE,
NITTOOR, NITTOOR VILLAGE AND POST, UDUPI TALUK AND
DIST.
5 VANI, AGED 56 YEARS,
W/O.J.BHEEMA BHAT,R/AT MEERAVANA HOUSE OF PERAMOGAM
POST,KEDILA VILLAGE, BANTWAL TALUKD.K.DISTRICT.
6 PREMLATHA, AGED 53 YEARS,
W/O.SIDDIVINYAKA BHAT .C.,R/AT CHOONTHARU (H), CHOKKADY
VILLAGE AND POST,SULLA TALUK & D.K.DT.
7 SARASWATHI, 49 YEARS,
W/O.SRIDHARA BHAT, R/AT KEDUMARU SRINILAYA,KURNADU
VILLAGE & POST, BANTWAL TALUK,D.K.DISTRICT.
BY ADVS.
SMT.N.SHOBHA
SRI.K.SHRIHARI RAO FOR R1
THIS MFA (SUCCESSION) HAVING COME UP FOR HEARING ON
26.06.2024, THE COURT ON 01.07.2024 DELIVERED THE FOLLOWING:
3
MFA(SUCC)No.13 of 2017
G.GIRISH, J.
---------------
M.F.A (SUCC).No.13 of 2017
------------------------------
Dated this the 1st day of July, 2024
--------------------------------------------
JUDGMENT
The 3rd defendant in O.S.No.3/2014 of the District Court,
Kasaragod has filed this appeal under Section 299 of the
Indian Succession Act challenging the judgment dated
21.10.2016 of the said court granting probate of a Will
claimed by the plaintiff.
2. Originally, the proceedings were numbered as
Probate O.P. No.73/2013 before the District Court, and it was
later on renumbered as O.S.No.3/2014. The plaintiff in the
said suit and defendants 2 to 4 are siblings. The 1st defendant
is the mother of the plaintiff. The Will claimed by the plaintiff
was one executed by his father on 27.04.1993. As per the
terms of the abovesaid Will, the one half right of the father
over item Nos.1 to 5 properties mentioned in that Will was
bequeathed to the plaintiff who held the remaining one half
right of the said items of properties. In addition to that, the
properties described as item Nos.6 and 7 in the Will was also
bequeathed to the plaintiff. The abovesaid Will also contained
an onerous condition requiring the legatee to arrange the
marriage of one of his unmarried sisters, and to take care of
his mother. After the death of the father on 07.09.2010, the
plaintiff approached the District Court for the probate of the
above Will.
3. The 3rd defendant, who is the appellant herein,
alone contested the said suit. In the written statement filed
by the 3rd defendant, she contended that the Will claimed by
the plaintiff was not executed by the testator out of his free
will and volition. According to the 3rd defendant, the plaintiff,
with whom the father was residing, dominated the free will of
the father and managed to fabricate the Will by exerting fraud
and undue influence.
4. Based on the aforesaid pleadings, the learned
District Judge framed four issues and proceeded with the trial
in which the plaintiff and one witness were examined as PW1
and PW2 and eight documents were marked as Exts.A1 to A8.
The husband of the 3rd defendant was examined as DW1 from
the part of the defendant.
5. After an evaluation of the above evidence, the
learned District Judge found that Ext.A1 registered Will deed
relied on by the plaintiff was duly executed by his father, late
N.Sham Bhat out of his free will and volition and with
necessary testamentary capacity. So also, the challenge of
undue influence and domain raised by the 3rd defendant were
repelled in the aforesaid judgment.
6. In the present appeal, the appellant would contend
that Ext.A1 Will deed was not duly proved, and hence the trial
court went wrong in allowing the prayer of the plaintiff. It is
further contended that the plaintiff had dominated the free
will of his father and exerted undue influence upon him for
getting the Will executed in his favour.
7. Heard the learned counsel for the appellant and the
learned counsel for the 1st respondent.
8. In the evidence tendered before the trial court as
PW1, the plaintiff has categorically stated about the execution
and registration of Ext.A1 Will by his father. Though he was
cross-examined at length by the learned counsel for the 3rd
defendant, nothing could be brought out to discredit the facts
stated in his proof affidavit. The execution of Ext.A1 Will has
been spoken before the trial court by one of the attestors
examined as PW2. The evidence tendered by PW2 would
reveal that he had seen the testator affixing his signature in
Ext.A1, and the testator has done so in his sound disposing
state of mind after knowing fully the contents thereof. The
cross-examination of PW2 has also not brought out anything
to doubt the veracity of his evidence regarding the execution
of Ext.A1 Will by the plaintiff's father.
9. Apart from mere surmises and conjectures derived
from the fact that the plaintiff was taking care of his father
during his old age, and that the whole property of the testator
was bequeathed in favour of the plaintiff, there is absolutely
nothing which the 3rd defendant could establish in support of
her allegation of fabrication of Ext.A1 Will by the plaintiff.
Though the 3rd defendant has attributed fraud and undue
influence upon the plaintiff, nothing could be brought out in
evidence to substantiate the above allegations. Neither the
sister of the plaintiff whose marriage was sought to be
arranged; and the mother of the plaintiff who was sought to
be taken care of by the plaintiff, are having any complaint that
the plaintiff failed to perform the above obligations imposed
upon him by the testator in Ext.A1 Will. Therefore, the trial
court cannot be faulted for arriving at the conclusion that
Ext.A1 Will was duly executed by the plaintiff's father upon
his free will and volition, and with necessary testamentary
capacity. As a conclusion to the above discussion, I find no
reason to interfere with the findings of the learned District
Judge in the judgment under challenge.
In the result, the appeal is hereby dismissed. There will
be no order as to costs.
(sd/-)
G.GIRISH, JUDGE
jsr
