Dismissed

M S Kenchegowda v. M S Subbegowda

Karnataka HC12 Dec 2023RSA/52/2016

Case brief

AI extract

What is this about?

High Court of Karnataka dismissed appeals challenging the refusal to register a will. Upholding trial and appellate courts' findings, the Court held that the propounder's active role, the testator's age, and recent illness created suspicious circumstances making the will's execution improbable.

What did the court decide?

The appeals filed by the legatees challenging the decree are dismissed.

M S Kenchegowda Vs M S Subbegowda — Partition | Karnataka HC (2023)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 12^TH DAY OF DECEMBER, 2023

¶4

BEFORE

¶5

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

¶6

R.S.A NO. 52 OF 2016 (PAR) C/W

¶7

R.S.A NO.153 OF 2016 (PAR)

¶8

IN RSA NO.52/2016 BETWEEN:

¶9

M S KENCHEGOWDA

¶10

AGEDD ABOUT 62 YEARS, S/O M.K.SHESHEGOWDA, R/O HALE MUDIGERE, MUDIGERE TALUK, CHIKMAGALUR DISTRICT - 572 218.

¶11

...APPELLANT

¶12

(BY SRI.PADMANABHA MAHALE, SR.COUNSEL FOR SRI.MANOHAR N & SRI.SUSHEELADEVI, ADVOCATES)

¶13

AND:

¶14

1 . M S SUBBEGOWDA AGED 71 YEARS, S/O M.K.SHESHEGOWDA, R/O HALE MUDIGERE, MUDIGERE TALUK CHIKMAGALUR DIST-572218.

¶15

2 . M.S.KRISHNEGOWDA AGED ABOUT 69 YEARS, S/O M.K.SHESHEGOWDA, NO. 1415/C, ASHA KIRANA BUILDINGS,

¶16

¶17

SALAGAME ROAD, HASSAN-573201

¶18

3 . M.S.NARAYANAGOWDA AGED ABOUT 67 YEARS, S/O M.K.SHESHEGOWDA, R/O HALE MUDIGERE, C/O HVT ADVOCATE, HASSAN-573201.

¶19

4 . M.S.GOPALA GOWDA AGED ABOUT 65 YEARS, S/O M.K.SHESHEGOWDA, R/O HALE MUDIGERE, MUDIGERE TALUK, CHIKMAGALUR DISTRICT-572218.

¶20

…RESPONDENTS

¶21

(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)

¶22

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.

¶23

IN RSA NO.153/2016 BETWEEN:

¶24

M.S.GOPALA GOWDA

¶25

S/O LATE M K SHESHEGOWDA

¶26

¶27

AGED ABOUT 66 YEARS R/A HALE MUDIGERE MUDIGERE TALUK CHIKKAMAGALUR-577137

¶28

...APPELLANT

¶29

(BY SRI.PRADEEP NAIK K, ADVOCATE)

¶30

AND:

¶31

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

¶32

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

¶33

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

¶34

4 . SRI M S KENCHEGOWDA S/O LATE M S SHESHEGOWDA AGED ABOUT 63 YEARS

¶35

¶36

R/A HALE MUDIGERE KASABA HOBLI MUDIGERE TALUK CHIKKAMAGALURU DISTRICT-577137

¶37

…RESPONDENTS

¶38

(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)

¶39

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.

¶40

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:

¶41

¶42

JUDGMENT

¶43

RSA.No.153/2016 is filed by defendant No.2 and

¶44

RSA.No.52/2016 is filed by defendant No.3,

¶45

questioning the concurrent judgments rendered by the Courts below in granting 1/5^th share each to plaintiffs 1 and 2 by negativing the Will set up by defendants.

¶46

For the sake of convenience the parties are

¶47

referred to as per their rank before the trial Court.

¶48

The family tree of plaintiffs and defendants

is as under:

M.K.Sheshe Gowda

Duggamma @ Kenchamma |

¶53

¶54

| | | | | 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)

¶55

4. Plaintiffs instituted the suit seeking relief of

¶56

partition and separate possession of their 1/5th share

¶57

each over the suit "A" and "B" schedule properties.

¶58

Plaintiffs contend that there was a partition in the

¶59

¶60

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.

¶61

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.

¶62

¶63

6. Plaintiffs to substantiate their claim have

¶64

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.

¶65

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

¶66

¶67

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.

¶68

Defendants 2 and 3 feeling aggrieved by

¶69

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

¶70

¶71

reasons assigned by the trial Court while disbelieving the Will and has accordingly, dismissed both the appeals.

¶72

Learned Senior counsel Sri. Padmanabha Mahale, by taking this Court through the crossexamination of P.W.1 would vehemently argue and contend that the admissions elicited in the crossexamination 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.

¶73

¶74

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.

¶75

1 AIR 2005 SC 4362

¶76

¶77

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

¶78

¶79

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.

¶80

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

¶81

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

¶82

¶83

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.

¶84

Heard the learned Senior Counsel

¶85

appearing for defendants 2 and 3 and learned counsel appearing for plaintiffs.

¶86

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

¶87

¶88

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.

¶89

If these significant details are looked into,

¶90

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

¶91

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.

¶92

¶93

The Will under dispute also needs to be

¶94

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

¶95

¶96

propounder's actions and influence could unduly sway

¶97

the testator's decision-making process.

¶98

In legal parlance, this situation may be

¶99

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.

¶100

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

¶101

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

¶102

¶103

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.

¶104

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

¶105

¶106

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.

¶107

If these significant details are looked into, this Court is of the view that no substantial question of law arises for consideration.

¶108

Accordingly, I proceed to pass the

¶109

following:

¶110

ORDER

¶111

The appeals are dismissed.

¶112

Sd/JUDGE

¶113

*alb/-

M S Kenchegowda v. M S Subbegowda

Case brief

What is this about?

What did the court decide?

M S Kenchegowda v. M S Subbegowda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

H v Padmanaba Gowda Vs Muniyamma

Sri Alwyn Jayakar Menon Vs the Commissioner

Smt. Savithramma Vs Sri. Putta

Smt. Sarojamma Vs Smt Suvarnamma

The Trinity Industrial Institute Shanthinagara (Ragigudda) Vs the Directorate General

K R Rangaswamaiah Vs Venkataramaiah