Bangalore District Court
Mahesh vs M Prasad on 4 April, 2026
KABC0A0000162020
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri. Sreepada N,
B.Com, LL.M.,
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 4th day of April 2026
O.S.No.25008/2020
Plaintiff:- Sri. Mahesh,
S/o Late Dr. N. Kashinath,
Aged about 45 years,
Residing at No.2/11(3),
Nanjappa Road,
Shanthinagar,
Bengaluru-560 027.
[By Sri. Muniyappa -Adv.]
V/s
Defendants:- 1. M. Prasad,
S/o Maniappa,
(Husband of
Late Smt. Vijayakumari,
Aged about 68 years,
R/at No.362, I Block, 2nd Stage,
2 OS No.25008/2020
10th Main, 3rd Stage,
Basaveshwaranagar,
Bangalore-560 079.
2. Sri. Premkumar,
S/o Late Dr. N. Kashinath,
Aged about 72 years,
3. Smt. Jayarathna,
W/o Sri. Prem Kumar,
Aged about 65 years,
Defendants 2 & 3 are
Residing at
No.2829, 7th Main,
Kumaraswamy Layout,
2nd Stage,
Bangalore - 560 078.
4. Smt. Sujatha,
W/o Sri. Natesh.M,
Aged about 47 years,
R/at No.343, 4th Cross,
Bangiyappa Garden,
Lakshmi Road,
Shanthinagar,
Bangalore-560 027.
5. Smt. C.V. Kalal,
W/o Late Dr. N. Kashinath,
Aged about 69 years,
R/at No.399, 2nd Cross,
HBCS Colony,
Amarjyothi Layout,
Bangalore-560 071.
3 OS No.25008/2020
6. Smt. P. Kavitha,
Aged about 44 years,
D/o Sri. M. Prasad and
Late Vijayakumari,
7. Smt. Savitha,
Aged about 44 years,
D/o Sri. M. Prasad and
Late Vijayakumari,
8. Smt. Anitha,
Aged about 40 years,
D/o Sri. M. Prasad and
Late Vijayakumari,
9. Sri. Anand,
Aged about 40 years,
D/o Sri. M. Prasad and
Late Vijayakumari,
Defendants 6 to 9 are residing at
No.362, 1st Block, II Cross,
10th Main, 3rd Stage,
Basaweshwara Nagar,
Bangalore-560 079.
[By Sri. SMM Adv., for D.1,
Sri. RRD Adv., for D.2 & 3,
Sri.GSP Adv., for D.4,
Sri.R.Associates for D.6 to
D.9]
[D.5 - Absent]
4 OS No.25008/2020
Date of Institution of the suit 20.1.2020
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Suit for Probate
for injunction, etc.)
Date of the commencement of
12.12.2021
recording of the Evidence.
Date on which the Judgment was
4.4.2026
pronounced.
Year/s Month/s Day/s
Total duration 06 02 14
LXXII ADDL. CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff for probate in
respect of the Will dtd: 21.7.2014 jointly executed by
Late Dr. N. Kasinath and Late Smt.Channaveeramma
and to direct the 1st Defendant herein to act as Joint
Executor along with the Plaintiff herein and to
execute the Will dtd: 21.7.2014 as per the terms
enumerated therein accordance with law and for
other reliefs.
2. The case of the Plaintiff, sans details, is that
the Plaintiff is beneficiary under the Last Will and
5 OS No.25008/2020
Testament dtd: 21.7.2014 jointly executed by Late
Dr. N. Kasinath and Late Smt. Channaveeramma.
Under the said Will the executors/testators have
bequeathed certain properties in favour of the
Plaintiff and the Defendants herein. The said Dr. N.
Kasinath expired on 10.5.2016 and Smt.
Channaveeramma expired on 21.2.2017. The
Plaintiff and 1st Defendant herein have been
appointed as the joint executors of the Will dtd:
21.7.2014 jointly executed by Late Dr. N. Kasinath
and Late Smt. Channaveeramma.
3. Further stated that the father of the Plaintiff
Dr. N. Kasinath died at the age of 91 years. During
his lifetime, he was serving as District Surgeon in the
Government of Bombay from 1955 to 1980. During
his lifetime Dr. N. Kasinath married one Puttamma
daughter of Late Puttappa in the year 1944. The said
Puttamma died in the year 1949 leaving behind her
two children born to Dr. N. Kasinath i.e., Premkumar
i.e., the 2nd Defendant and Smt. Vijayakumar to
succeed to her estate. The father of the Plaintiff Dr. N.
Kasinath had acquired property bearing 2/11,
Nanjappa Road, Shanthinagar, Bengaluru, under
6 OS No.25008/2020
Sale Deed dtd: 1.3.1962 executed by Sri. T.
Siddabasappa. There was partition in the family vide
Partition Deed dtd: 15.7.1982. The said partition
reveals the fact that Smt. Puttamma the mother of
Sri. Premkumar was allotted a share now which is in
possession and enjoyment of Sri. Premkumar. After
the death of Puttamma, Dr. Kasinath married one
Smt. Channaveeramma as his second wife and there
are no issues born to her. Dr. Kasinath has executed
Gift Deed dtd: 24.2.2010 gifting the property bearing
Municipal No.2/11, Old Site No.3 of the then
Muniswamy Garden, situated at Nanjappa Road,
Shanthinagar, Bangalore, in favour of Smt.
Channaveeramma. After the death of
Channaveeramma, Dr. Kasinath again married Smt.
Chandramathi Veerappa Kalal as his third wife and
out of their wedlock, they have two children by name
Smt. Sujatha i.e., the 4th Defendant and Sri. Mahesh
i.e., the Plaintiff herein. The above said property was
bifurcated under a Special Notice dtd: 4.7.2016, the
BBMP has bifurcated the Schedule Property and
allotted various numbers to the properties as detailed
therein. Smt. Vijayakumar the wife of 1st Defendant
died on 4.9.2017. During the lifetime of Dr. N.
7 OS No.25008/2020
Kasinath, he had purchased Hyundai Assent Motor
Car bearing Registration No.KA-01-MD-2893. Smt.
Channaveeramma was operating a Savings Bank
Account with Syndicate Bank and she has deposited
a sum of Rs.80,00,000/- in Fixed Deposit with
Syndicate under FD Receipt dtd: 13.7.2016. Dr. N.
Kasinath was holding a Savings Bank Account with
Canara Bank in account No.1882, K.H.Road Branch,
Bangalore. The parents of the Plaintiff Dr. N.
Kasinath and Smt. Channaveeramma were residing
with him and they were under the care and custody
of Plaintiff and he took care of them and provided all
facilities to them with love and affection and also
performed the funeral rites and obsequies ceremony
after the death of Dr. N. Kasinath and Smt.
Channaveeramma. In view of the affection shown by
the Plaintiff, both the testators have bequeathed
certain properties in favour of Plaintiff and some
properties to the Defendants which are detailed in
the schedule and appointed the Plaintiff and 1 st
Defendant as joint executors of the Will dtd:
21.7.2014. Inspite of Plaintiff requesting the 1 st
Defendant to act as a joint executor of the Will, he
failed to perform his part of the obligation casted
8 OS No.25008/2020upon him under the said Will. Therefore, the Plaintiff
approached this Court to decree the suit.
4. Pursuant to summons, the Defendant No.1 to
4, 6 to 9 entered appearance through their counsels
and Defendant No.1, 4 have filed their separate
written statements and the Defendant No.2 & 3 have
filed their joint written statement. The Defendant
No.6 to 9 have adopted the written statement of
Defendant No.1. The Defendant No.5 remained
absent.
5. The Defendant No.1 in his written statement
specifically denied the plaint averments and
contended that the suit filed by the Plaintiff is not
maintainable either in law or on facts and the same
is liable to be dismissed. The suit filed by the Plaintiff
is false and frivolous, hence the same may be liable
to be dismissed with exemplary costs. Further
admitted the relationship between the parties and
contended Dr. Kasinath and his mother
Channaveeramma have together residing in their
house at Nanjappa Raod, Chanthinagar, Bangalore.
The Plaintiff was staying separately and the Plaintiff
9 OS No.25008/2020
from the beginning adopted play boy attitude and
never been responsible in taking care of the affairs of
the house and never discharged his obligations as
responsible son for Dr. Kasinath and Smt
Channaveeramma. Furthermore, Dr. Kasinath on
several occasion reprimanded the Plaintiff and
advised him to behave as responsible person
befitting to his status, however, he is continued to
behave in irresponsible manner during the lifetime of
their parents. He has categorically denied the
existence of Will dtd: 21.7.2014 allegedly executed
by Dr. Kasinath and Smt. Channaveeramma and the
said Will is a suspicious document, since Dr.
Kasinath at the time of death at the age of 91 years
who was suffering from several age related ailments
including Vascular Dementia and he was suffering
from short of memory due to hyper tension and other
mental disorders and he was taking treatment for
the same and he was not capable of understanding
any words without the help of anyone. Further Smt.
Channaveeramma died at the age of 77 years and
she was also not capable of understanding and from
the rational opinion on anything and she was
depending on somebody to do all her routine
10 OS No.25008/2020
activities, such being the case the execution of the
Will by Dr. N. Kasinath and Smt. Channaveeramma
is highly improbable and suspicious. The 1st
Defendant further contended that there is no medical
certificate whatsoever has furnished to prove the
mental capability of the testators of the said Will and
the 1st Defendant strongly denies the existence of the
Will which is created by the Plaintiff herein. Further
contended that Smt. Vijayakumari the deceased wife
of 1st Defendant and Sri. Premkumar have together
filed the original suit in O.S.No.298/2017 before the
City Civil Court at Bangalore (CCH-No.6) against Smt.
Sujatha Natesh and N.K. Mahesh, 4th Defendant and
Plaintiff herein for the relief of partition and separate
possession of 1/4th share in respect Suit Schedule
Property and the Plaintiff has put his appearance
and filed written statement, the suit is pending for
adjudication. Further contended that the alleged Will
is an unregistered document, apart from that there
are suspicious circumstances surrounding in the
execution of the alleged Will, thus it is abundantly
clear that the Testators of the said alleged Will never
intend to bequeath the properties in favour of the
Plaintiff. Further Plaintiff has not produced any iota
11 OS No.25008/2020
of documents to prove that, the Testators of the Will
have executed the said document with their free will
and volition, hence the plaint is liable to be dismissed
with exemplary cost. The legal heirs of Smt. P.
Vijayakumari deceased wife of 1st Defendant arenot
arrayed as parties to the above proceedings, hence,
the suit is bad for non-joinder of necessary parties
and liable to dismissed. There is no cause of action
for the suit and suffers many factual and legal
infirmities, hence the same is liable to be dismissed
with cost. Hence, prayed to dismiss the suit with
cost.
6. The Defendant No.2 & 3 in their written
statement specifically denied the plaint averments
and contended that Dr. N. Kashinath and
Channaveeramma have died intestate. The falsely
alleged, so called Last Will and Testament reportedly
executed jointly on 21.7.2014 by the said two
persons which is produced by the scheming
Petitioner in the instant case, is collusive and
fabricated. Moreover, it is prima-facie fatally
defective, contains several blatant false, frivolous
and fraudulent averments apparent on the face of
12 OS No.25008/2020
record and thus, it is absolutely not enforceable in
law. Further taken up contention that the suit of the
Plaintiff is not at all maintainable. The Plaintiff with
his aid and assistance have created the Will. The
most of the documents produced by the Plaintiff are
concocted, fabricated and fraudulent in nature. So
the Will is fabricated and fraudulent in nature. The
Plaintiff has not approached this Court with clean
hands, therefore, he is not at all entitled for any
relief, leave alone the ones he has prayed for
specifically in the instant petition. The Court fee paid
by the Plaintiff is not proper. Accordingly, they
prayed to dismiss the suit.
7. The Defendant No.4 also filed separate
written statement and contended that the suit filed
by the Plaintiff is totally false, baseless and liable to
be dismissed. The Plaintiff in the Schedule Item No.4
to the plaint alleges that Dr. N. Kashinath and Smt.
Channaveeramma have bequeathed to him under the
alleged Will dtd: 21.7.2014 “all other apartment and
rooms in the property bearing No.2/11, Nanjappa
road, Shanthinagar, Bengaluru. Inspite of this, the
Petitioner does not give details of the so called “all
13 OS No.25008/2020
other apartments and rooms. Late Smt. Vijaya
Kumari during her lifetime along with her brother Sri.
Prem Kumar i.e., the 2nd Defendant jointly filed a suit
in O.S.No.2981/2017 against the Petitioner and this
Defendant No.4 seeking partition and separate
possession of their 1/4th share in the Suit Schedule
Properties, which include not only the entire property
bearing No.2/11, Nanjappa Road, Shanthinagar,
Bengaluru, but also the deposit of Rs.80,00,000/-,
Gold and Silver Articles as also the Hundai Accent
Car. The Plaintiff inspite of his having knowledge of
that suit and having entered appearance through
counsel, has intentionally and willfully suppressed
this material fact. In view of this also, the present
suit has to be dismissed. The suit is totally bad for
suppression of one other material fact viz, that
Smt.Channaveeramma, during her lifetime, gifted one
number of 2 BHK Apartment situated in the rear of
the Ground Floor of the building constructed on the
property bearing No.2/11 in favour of Smt. Vijaya
Kumar W/o Sri. M. Prasad i.e., 1st Defendant and
has executed a Gift Deed dtd: 15.12.2014 and also
gifted one number of 3 BHK Apartment situated in
the rear of the Ground Floor of the building construed
14 OS No.25008/2020
on the property bearing No.2/11 in favour of the
Plaintiff and has executed Gift Deed dtd: 15.12.2014.
However, he has not denied the relationship between
the parties to the suit. Further also taken up
contention that the suit is bad for non-joinder of
necessary parties. Further taken up contention that
the suit is bad for suppression of material facts, as
the Plaintiff has not stated anything about the gift
made by Channaveerama dtd: 15.12.2014. Further
also taken up contention that the Plaintiff is the
Defendant in O.S.No.2981/2017 has set up the
present Will as a defense in that suit. Therefore, this
Court has no jurisdiction to decide the present suit.
Further taken up contention that when Civil Court of
competent jurisdiction is seized of the matter relating
the properties of the deceased Dr. N. Kashinath and
Channaveeramma, a probate court before whom the
proceedings are normally summary one, does not get
jurisdiction to adjudicate upon the present suit.
Further also taken up contention that the deceased
Dr. N. Kashinath and Channaveeramma are not in
physically or mentally good condition so as to
execute the alleged Will. Further contended that as
on the date of execution of the alleged Will Dr. N.
15 OS No.25008/2020
Kashinath was seriously ill and he was not mentally
capable of understanding what he was doing.
Further contended that the Defendant No.4 was in
close association with Dr. N. Kashinath and
Channaveeramma until their death. When this is the
position, at no point of time either Dr. N. Kashinath or
Smt. Channaveeramma informed about the alleged
Willl dtd: 21.7.2014 having been executed by them.
Therefore, the alleged Will is created and fabricated
one and the Plaintiff will not get any right over the
Suit Properties. The Will propounded by the Petitioner
being a fabricated and concocted one is clear from
the fact that it contains false statements and there is
no scribe to it. The alleged witnesses to the said Will
are strangers to the Defendants and the family
members of late Dr. N. Kashinath and late Smt.
Channaveeramma. This Defendant denied the
execution of Will by the testators, as Dr. N.
Kashinath was suffering from age old ailments and
he was also suffering from dimensia and other
diseases. Smt. Channaveeramma was also very
week not only physically but also mentally so as not
been able to understand what she was doing. This
Defendant deny the said Will not only relating to its
16 OS No.25008/2020
contents, execution and the witnesses thereto.
Therefore, prayed to dismiss the suit.
8. Based on the pleadings of the parties, this
court has framed the following issues:
1. Whether the Plaintiff proves that Dr. N.
Kasinath and Smt. Channaveeramma
have jointly executed the Will dtd:
21.7.2014?
2. Whether the Plaintiff proves that, he
and the Defendant No.1 have been
nominated as Joint Executors under
the Will dtd: 21.7.2014?
3. Whether the Defendant No.1 prove that,
the suit of the Plaintiff is bad for non-
joinder of necessary parties, as
contended in Para No.21 of the
written statement?
4. Whether the Plaintiff is entitled for the
relief as claimed in the suit?
5. What order or decree?
9. The Plaintiff got examined himself as PW.1
and examined one more witness as PW.2 and got
17 OS No.25008/2020
marked Ex.P.1 to Ex.P.12 documents. The Defendant
No.1, 2 & 4 themselves got examined as DW.1 to
DW.3 and got marked Ex.D.1 to Ex.D.9 documents
and closed their side. The Handwriting Expert is
examined as CW.1 and got marked the documents at
Ex.C.1 & Ex.C.2.
10. Heard both sides. Perused the written
synopsis filed by the Plaintiff, Defendant No.1, 2, 6 to
9.
11. Perused the evidence and documents on
record. On appreciation of the evidence on record,
my findings on the above issues are as under:
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative,
Issue No.3 : In the Negative.
Issue No.4 : In the Affirmative.
Issue No.5 : As per final order for
the following:
REASONS
12. Issue No.1 & 2:-
In order to avoid repetition of facts, these issues
have been taken up together for consideration.
18 OS No.25008/2020
13. Earlier the Plaintiff has filed P &
S.C.No.25056/2018 against the Defendants seeking
relief of issue of Probate in respect of Will dtd:
21.7.2014 jointly executed by Dr. N. Kasinath and
Smt. Channaveeramma and to pass an order
directing the Respondent No.1 to come as joint
executor along with Plaintiff and to execute the Will
dtd: 21.7.2014 as per the terms enumerated therein
etc.
14. However, this Court as per order dtd:
7.12.2019 come to conclusion that the Will on basis
of the which probate is claimed and the same is
challenged the probate proceedings are to be treated
as original suit. Accordingly, this Court directed to
convert this petition to suit and objection filed by the
Respondents as written statement. In view of the
above, earlier P & SC proceedings has been
converted into suit.
15. As aforesaid, the Plaintiffs have specifically
claimed in this suit that the probate may be issued in
respect of the Will dtd: 21.7.2014 jointly executed by
19 OS No.25008/2020
Dr. N. Kasinath and his wife Smt. Channaveeramma
during their lifetime bequeathing the Suit Schedule
Property in favour of Plaintiffs and Defendants.
According to the said Will, the Defendant No.1 has
been appointed as joint executor along with the
Plaintiff and to execute the Will dtd: 21.7.2014.
16. On the other hand, the Defendants
especially the Defendant No.1 has denied about the
valid execution of the Will by Dr. N. Kasinath and
Smt. Channaveeramma. Further taken up contention
that there are suspicious circumstances surrounding
in the execution of the said Will. As the testators
have never intended to bequeath the properties in
favour of the Plaintiffs and the alleged documents
are not free from doubts. Therefore, this suit is liable
to be dismissed.
17. The Defendant No.1, 6 to 9 have further
specifically contended in their written statement and
the Defendant No.1 in his oral evidence that when
the deceased wife of Defendant No.1 and Defendant
No.2 have filed suit in O.S.No.2981/2017 against the
Plaintiff for the relief of partition and separate
20 OS No.25008/2020
possession and after coming to know about the said
suit the Plaintiff has set up the alleged Will with a
sole intention to deprive their right in the said suit
has initiated probate proceedings. Further taken up
contention that the alleged Will is an unregistered
document. Apart from that there are suspicious
circumstances in the execution of the said Will and it
is boundently clear that the testator of the alleged
Will never intended to bequeath the properties in
favour of the Plaintiff. Further also taken up
contention that the father of the Plaintiff was 91
years at the time of alleged Will and there is no
medical records produced to show that deceased Dr.
N. Kashinath and his wife Channaveeramma were
hail and health and were capable to execute the Will.
Therefore, the suit of the Plaintiff is liable to be
dismissed.
18. The Defendant No.2 & 3 in their written
statement have contended that Dr. N. Kashinath and
Channaveeramma have died intestate. Further taken
up contention that the suit of the Plaintiff is not at all
maintainable. The Plaintiff with his aid and
assistance have created the Will. The most of the
21 OS No.25008/2020
documents produced by the Plaintiff are concocted,
fabricated and fraudulent in nature. So the Will is
fabricated and fraudulent in nature. Accordingly,
they prayed to dismiss the suit.
19. The Defendant No.4 also filed separate
written statement and contended that the suit is not
at all maintainable. However, he denied the
relationship between the parties to the suit. Further
also taken up contention that the suit is bad for non-
joinder of necessary parties. Further taken up
contention that the suit is bad for suppression of
material facts, as the Plaintiff has not stated
anything about the gift made by Channaveerama
dtd: 15.12.2014. Further also taken up contention
that the Plaintiff is the Defendant in
O.S.No.2981/2017 has set up the present Will as a
defense in that suit. Therefore, this Court has no
jurisdiction to decide the present suit. Further taken
up contention that when Civil Court of competent
jurisdiction is seized of the matter relating the
properties of the deceased Dr. N. Kashinath and
Channaveeramma, a probate court before whom the
proceedings are normally summary one, does not get
22 OS No.25008/2020
jurisdiction to adjudicate upon the present suit.
Further also taken up contention that the deceased
Dr. N. Kashinath and Channaveeramma are not in
physically or mentally good condition so as to
execute the alleged Will. Further contended that as
on the date of execution of the alleged Will Dr. N.
Kashinath was seriously ill and he was not mentally
capable of understanding what he was doing.
Further contended that the Defendant No.4 was in
close association with Dr. N. Kashinath and
Channaveeramma until their death. When this is the
position, at no point of time either Dr. N. Kashinath or
Smt. Channaveeramma informed about the alleged
Willl dtd: 21.7.2014 having been executed by them.
Therefore, the alleged Will is created and fabricated
one and the Plaintiff will not get any right over the
Suit Properties. Therefore, prayed to dismiss the suit.
20. The Plaintiff in order to prove the averments
of plaint got himself examined as PW.1 and
examined one attesting witness of the Will as PW.2
and got marked documents at Ex.P.1 to Ex.P.12.
Even the Plaintiff examined Handwriting Expert as
23 OS No.25008/2020
CW.1 and got marked document through him as per
Ex.C.1 & Ex.C.2.
21. Let me go through the documentary
evidence placed by the Plaintiff in support of his
case. Ex.P.1 is the unregistered Will dtd: 21.7.2014
alleged to be executed Dr. N. Kashinath and his
second wife Channaveeramma in respect of their
properties. Ex.P.2 & Ex.P.3 are the Death Certificates
of Dr. N. Kashinath and Channaveeramma. Ex.P.4 is
the Sale Deed dtd: 1.3.1962 shows that Dr. N.
Kashinath has purchased Site No.3 by way of
registered Sale Deed. Ex.P.5 is the certified copy of
Partition Deed dtd: 15.7.1982. Ex.P.6 is the Gift Deed
dtd: 24.2.2010. Ex.P.7 is the Special Notice issued by
the BBMP U/Sec.147 of KMC Act. Ex.P.8 is the Bank
Passbook of Channaveeramma. Ex.P.9 is the Bank
Passbook of Dr. N. Kashinath. Ex.P.10 is the Fixed
Deposit Receipt standing in the name of
Channaveeramma. Ex.P.11 & Ex.P.12 are the
Declarations given by the husband of Defendant No.1
& Defendant No.4 in connection with the Gift Deeds
executed by Channaveeramma.
24 OS No.25008/2020
22. Out of the Defendants, the Defendant No.1
examined as DW.1, Defendant No.2 examined as
DW.2 and Defendant No.4 examined as DW.3 and
they got marked the documents at Ex.D.1 to Ex.D.9.
Ex.D.1 to Ex.D.3 are the certified copies of Gift Deeds
executed by Channaveeramma has been marked by
way of confrontation during the course of cross-
examination. Ex.D.4 is the Plaint in
O.S.No.2981/2017 filed by the wife of Defendant
No.1 and Defendant No.2 against the Defendant No.4
and the Plaintiff. Ex.D.5 is the Discharge Summary of
deceased Kashinath. Ex.D.6 is the digital copy of Gift
Deed executed by Channaveeramma in favour of
Defendant No.4. Ex.D.7 is the Encumbrance
Certificate. Ex.D.8 is the Tax Paid Receipt. Ex.D.9 is
the Certificate U/Sec.65B of Indian Evidence Act in
connection digital copies of documents.
23. The Learned Counsel for the Plaintiff during
the course of arguments and as well as in his written
arguments specifically contended that there is no
dispute with regard to the relationship of the parties
to the suit. The Plaintiff has earlier filed P & SC
seeking probate with respect to the properties
25 OS No.25008/2020
mentioned in Item No.1 to 8 of the Will. The Plaintiff
has found the said Will while shifted his house in the
year 2016 and immediately prayed the Defendant
No.1 to act as executor, but he refused to joint with
him in P & SC to execute the Will of Dr. N. Kashinath
and Channaveeramma. Further argued that though
the Defendant No.2 & 3 have jointly filed the written
statement and denied the execution of Will by Dr. N.
Kashinath and Channaveeramma, but the Defendant
No.2/DW.2 who is the eldest son of Late Kashinath
had admitted that Will dtd: 21.7.2014 was executed
by his father Dr. Kashinath and his step mother
Channaveeramma. Though the Defendant No.3
adopted the written statement of Defendant No.2 has
not chosen to lead any evidence. The Plaintiff in
order to prove the valid execution of the Will by the
testator has examined PW.2. even the Plaintiff got
appointed the Handwriting Expert to examine the
signature of executrix in Ex.P.1 to Ex.P.5 which are
the Will and Gift Deeds. The Handwriting Expert has
clearly opined that the disputed signatures of the
testator i.e., Dr. Kashinath and Channaveeramma
are similar to the admitted signatures to that are
found in Ex.P.6 Gift Deed. When the Expert has
26 OS No.25008/2020
clearly opined that the signatures of the testator of
Ex.P.1 found in Ex.P.1 are matching with Ex.P.6
signatures, the same should be accepted by this
Court. There is no materials placed by the
Defendants to show that deceased Kashinath was
not mentally capable to execute Will at the relevant
point of time. DW.2 has clearly admitted that his
father Kashinath and step mother Channaveeramma
have executed Will dtd: 21.7.2014. Even DW.3 also
admitted in her cross-examination that her father
and mother have resided along with the Plaintiff at
the time death of her father. The wife of Defendant
No.1 and Defendant No.4 have executed declarations
as per Ex.P.11 & Ex.P.12 declaring that they have no
claims towards the property and also received a sum
of Rs.15,00,000/- each at the time of declaration.
Further execution of declaration and accepting the
Gift Deed, later the deceased wife of Defendant No.1
filed a suit in O.S.No.2981/2017 seeking partition.
Further argued that the Plaintiff in support of his
case has produced sufficient documentary evidence.
The Plaintiff by examining one of the attesting
witness has proved the valid execution of the Will by
Dr. N. Kashinath and Channaveeramma as per
27 OS No.25008/2020
Ex.P.1. Even PW.2 has identified the signatures of
testators and as well as himself in Ex.P.1. According
to Section 68 of Indian Evidence Act and Section 59
of Indian Succession Act the Plaintiff has proved his
case, as the Plaintiff who is the propounder of the
Will by placing sufficient corroborative evidence and
substantial evidence proved the valid execution of
the Will by the testator. Therefore, question of
suspicious circumstances does not arise and the due
execution of the Will has been proved. Accordingly,
he prayed to decree the suit.
24. Even though the Defendant No.2 strongly
denied the averments of plaint and as well as
execution of Will by both Dr. N. Kashinath and
Channaveeramma in the written statement, but
DW.2 admitted the case of the Plaintiff in his oral
evidence. Even the argument of the Learned Counsel
for the Defendant No.2 is also supporting the case of
the Plaintiffs.
25. It is the argument of the Learned Counsel
for the Defendant No.1 is that there is no medical
certificate whatsoever to prove the mental capacity of
the testator of the Will and at the time of death the
28 OS No.25008/2020
age of Kashinath was 91 years and
Chennaveeramma was 77 years. After come to know
about the suit filed by the Defendant No.1 for
partition and after come to know about the properties
left by Kashinath and Channaveeramma has set up
the alleged Will with sole intention to deprive the
right of the Defendants in the Schedule Properties.
Further he referred the cross-examination of PW.1 &
PW.2 and as well as cross of CW.1.
26. Further argued that the PW.2 is the
interested witness and friend of PW.1. Even the
another attesting witness has not been examined by
the Plaintiff. CW.1 has clearly stated in the cross-
examination that he cannot say that signatures
found on disputed documents are obtained under
coercion, undue influence or by threat. Further he
sated that reliability of the report is based upon the
admitted signatures provided to him. Even he stated
that he has not analyzed the type of instruments
used for signing disputed and admitted documents.
When the onus is upon the Plaintiff to prove the Will
by removing the suspicious circumstances
surrounding the execution of the Will, but he has not
29 OS No.25008/2020
at all done so, as the propounder has not proved the
Will as required under Section 63 of Indian
Succession Act. That apart, the Ex.P.1 Will was not
at all registered document and even name of the
scribe also not at all mentioned in the Will. The major
portions of properties were given to the Plaintiff in the
said Will for that there is no explanation from the
side of the Plaintiff. These are the suspicious
circumstances surrounding about the valid execution
of the Will by the Dr. N. Kashinath and
Channaveeramma.
27. In support of his arguments he has relied
upon the following decisions:
1) H. Venkatachala Iyenger V/s B.N. Thimmajamma
and others in Civil Appeal No.18 of 1955.
2) Bharpur Singh & Others V/s Shamsher Singh in
Civil Appeal No.7250 of 2008.
3) Chinu Rani Ghosh V/s Subhash Gosh and Others
in Spl.(c) No.23721 of 2022.
4) Karri Nookaraju V/s Putra Venkata Rao and
Others in AIR 1974 Andhra Pradesh 13.
30 OS No.25008/2020
5) Abdul Wahab & Ors., V/s Rahamathunnissa Since
Deceased by LRs., in R.S.A. No.1321/2007
(DEC/INJ).
28. Even the Learned Counsel for the Defendant
No.4 also in his arguments submitted that Ex.P.1 has
been created by the Plaintiff in order to deprive the
right of the Defendants over the Suit Schedule
Property. After the Plaintiff came to know about the
filing of this suit by the wife of Defendant No.1 and
Defendant No.2 only created Ex.P.1. there is no
proper reasons have been assigned in the Ex.P.1 for
granting larger extent of the properties to the Plaintiff.
Accordingly, he prayed to dismiss the suit.
29. At this stage itself it is necessary to refer
some of the rulings of the Honb’le Apex Court
regarding proof of Will by the propounder of the Will.
The Hon’ble Supreme Court in Civil Appeal
No.6076/2009 (Shivajumar & others V/s
Sharanabasappa and Ors), while referring to
several judgments of the Apex Court as to the proof
of Will, was pleaded to summarize the principles
31 OS No.25008/2020
governing the adjudicatory process concerning proof
of a Will as follows:-
“1. Ordinarily, a Will has to be
proved like any other document; the test to
be applied being the usual test of the
satisfaction of the prudent mind. Alike the
principles governing the proof of other
documents, in the case of Will too, the
proof with mathematical accuracy is not to
be insisted upon.
2. Since as per Section 63 of the
Succession Act, a Will is required to be
attested, it cannot be used as evidence
until at least one attesting witness has
been called for the purpose of proving its
execution, if there be an attesting witness
alive and capable of giving evidence.
3. The unique feature of a Will is that
it speaks from the death of the testator
and, therefore, the maker thereof is not
available for deposing about the
circumstances in which the same was
executed. This introduces an element of
solemnity in the decision of the question
as to whether the document propounded is
the last Will of the testator. The initial
onus, naturally, lies on the propounder but
the same can be taken to have been
primarily discharged on proof of the
essential facts which go into the making of
a Will.
4. The case in which the execution of
the Will is surrounded by suspicious
32 OS No.25008/2020circumstances stands on a different
footing. The presence of suspicious
circumstances makes the onus heavier on
the propounder and, therefore, in cases
where the circumstances attendant upon
the execution of the document give rise to
suspicion, the propounder must remove all
legitimate suspicions before the document
can be accepted as the last Will of the
testator.
5. If a person challenging the Will
alleges fabrication or alleges fraud, undue
influence, coercion etcetera in regard to
the execution of the Will, such pleas have
to be proved by him, but even in the
absence of such pleas, the very
circumstances surrounding the execution
of the Will may give rise to the doubt or as
to whether the Will had indeed been
executed by the testator and/or as to
whether the testator was acting of his own
free will. In such eventuality, it is again a
part of the initial onus of the propounder to
remove all reasonable doubts in the
matter.
6. A circumstance is “suspicious”
when it is not normal or is ‘not normally
expected in a normal situation or is not
expected of a normal person’. As put by
this Court, the suspicious features must be
‘real, germane and valid’ and not merely
the ‘fantasy of the doubting mind.’
7. As to whether any particular
feature or a set of features qualify as
33 OS No.25008/2020
“suspicious” would depend on the facts
and circumstances of each case. A shaky
or doubtful signature; a feeble or uncertain
mind of the testator; an unfair disposition
of property; an unjust exclusion of the
legal heirs and particularly the
dependants; an active or leading part in
making of the Will by the beneficiary
thereunder etcetera are some of the
circumstances which may give rise to
suspicion. The circumstances above-noted
are only illustrative and by no means
exhaustive because there could be any
circumstance or set of circumstances
which may give rise to legitimate suspicion
about the execution of the Will. On the
other hand, any of the circumstance
qualifying as being suspicious could be
legitimately explained by the propounder.
However, such suspicion or suspicions
cannot be removed by mere proof of sound
and disposing state of mind of the testator
and his signature coupled with the proof
of attestation.
8. The test of satisfaction of the
judicial conscience comes into operation
when a document propounded as the Will
of the testator is surrounded by suspicious
circumstance/s. While applying such test,
the Court would address itself to the
solemn questions as to whether the
testator had signed the Will while being
aware of its contents and after
understanding the nature and effect of the
dispositions in the Will?
34 OS No.25008/2020
9. In the ultimate analysis, where the
execution of a Will is shrouded in
suspicion, it is a matter essentially of the
judicial conscience of the Court and the
party which sets up the Will has to offer
cogent and convincing explanation of the
suspicious circumstances surrounding the
Will.”
30. Similarly, Hon’ble Apex Court in a ruling
reported in (2017 (1) SCC 257) (Ramesh Varma
V/s Lajesh Saksena) was pleased to observe as
follows:-
“The propounder has to show that
Will was signed by testator and that the
testator was in sound and disposing
state of mind at the relevant time that the
testator had understood the nature and
effect of disposition and put his signature
to document on his own free will such
document shall not be used as evidence
unless one of attesting witness is called
to prove execution this mandate of law
does not change even if opposite party
does not specifically deny execution of
Will.”
31. Keeping in view the broad principles laid
down by the Honb’le Apex Court, let me appreciate
the evidence of the parties to the suit with exhibits.
35 OS No.25008/2020
32. In this suit, the Plaintiff has specifically
contended that Dr. N. Kashinath and
Channaveeramma have jointly executed the Will dtd:
21.7.2014 and himself and Defendant No.1 have
been nominated as joint executors of the Will. The
Defendant No.1 is not ready to act as joint executor
of the Will along with Plaintiff. Therefore, the probate
in respect of Ex.P.1 may be issued and direct the
Defendant No.1 to act as joint executors to execute
the Will dtd: 21.7.2014.
33. Admittedly, the Plaintiff has placed his oral
evidence and as well as Ex.P.1 to Ex.P.12 in support
of his evidence. In his oral evidence he has reiterated
the contents of plaint averments. During the course of
cross-examination made by the Learned Counsel for
the Defendant No.1, 6 to 9 he clearly stated that Dr.
N. Kashinath and Channaveeramma died issueless.
Further clearly denied that his father was suffering
from Alzheimer disease, but admitted that after 2015
his father was frequently visiting to the hospital
relating with his diseases. Even he admitted that his
father admitted in the Hospital, but he was not sure
that he was admitted in the said Hospital on
36 OS No.25008/2020
31.7.2015 and discharged on 6.8.2015. Further he
clearly stated in the cross-examination that he came
to know about writing of Will by his father, when he
was shifting in his house that may be in the month of
May or June 2016. The draftsmen of Ex.P.1 has not
affixed his signature on Ex.P.1 Will. Further stated
that there is no mentioned about Gift Deed dtd:
15.12.2014 in Ex.P.1. Further admitted that
Doctor/Physician has neither attested the certificate
to Ex.P.1 Will nor has affixed signature on Ex.P.1
Will, to show that the soundness of the mind of his
father Dr. Kashinath.
34. Admittedly, on careful perusal of the above
cross-examination it is clear that no worth materials
have been elicited from the mouth of PW.1 to show
that the Ex.P.1 has been came under the suspicious
circumstances. On the other hand, the Defendant
No.1 has not at all placed sufficient materials to
show that Ex.P.1 has been come under the
suspicious circumstances. The Plaintiff has placed
sufficient materials i.e., the subsequent documents
executed by the testators i.e., Gift Deeds, so Will was
not executed under any suspicious circumstances.
37 OS No.25008/2020
35. It is an admitted fact that though the
Defendant No.2 & 3 have jointly filed written
statement and denied the case of the Plaintiff, but
the Defendant No.2 in his oral evidence has clearly
supported the case of the Plaintiff. Moreover, he is
the elder son of Late Dr. N. Kasinath and he has
admitted about the execution of the Will dtd:
21.7.2014 by his late father Dr. N. Kasinath and his
step mother Channaveeramma. Even though the
Defendant No.3 jointly filed written statement along
with the Defendant No.2, but she did not led her
evidence and contested the case. Further the
Defendant No.2 has denied the Will, but not placed
sufficient materials to show that the Will has been
created by the Plaintiff. Admittedly, the third wife of
Dr. N. Kasinath i.e., the Defendant No.5 placed ex-
parte.
36. Is pertinent to note here that the Plaintiff in
order to prove the valid execution of the Will by Dr. N.
Kasinath and Smt. Channaveeramma has examined
PW.2 who is the attesting witness to the Will and he
is the family friend of Plaintiff’s father from last 15
38 OS No.25008/2020
years and there is no materials forthcoming from the
side of the Defendants to show that his evidence
cannot be believable. On the other hand, his evidence
is duly corroborating the case of the Plaintiff. As
aforesaid he has clearly identified the signatures of
testators and himself in Ex.P.1.
37. Further as discussed above, CW.1 who is
the Handwriting Expert has submitted his report and
he has been provided with Ex.P.1 Will and Ex.P.6
Gift Deed wherein the admitted signature of Dr. N.
Kasinath and Smt. Channaveeramma were found.
The Expert after verifying the signatures of the
testators of the Will on Ex.P.1 with their admitted
signatures found on Ex.P.6 come to conclusion that
the signatures of testators found on Ex.P.1 & Ex.P.6
are one and the same. Though the Learned Counsel
for the Defendants cross-examined CW.1 at length,
but nothing worth has been elicited from his mouth.
38. In this case, the Defendant No.1, 6 to 9 very
much contended in the written statement that the
testators were aged 98 and 76 years at the time of
their death and they were not in sound state of mind
39 OS No.25008/2020
and no medical records have been produced to show
that at the time of execution of the Will they were hail
and healthy. Admittedly, as argued by the Learned
Counsel for the Plaintiff, the Defendants have
produced Ex.D.1 to Ex.D.3 Gift Deeds executed by
the testators that too registered before the Sub-
Registrar Office on1 5.12.2014 i.e., after the
execution of the Will by the testators on 21.7.2014.
Even though the Defendants have produced Ex.D.5
discharge summary of Dr. N. Kasinath dtd: 6.8.2015,
but on perusal of the same there was no serious
issue found in this discharge summary. Therefore,
Ex.D.5 discloses that Dr. N. Kasinath was hale and
health and conscious in the year 2015 as per Ex.D.5.
39. It is the another contention of the Learned
Counsel for the Defendant No.1, 6 to 9 is that the
wife of Defendant No.1 & Defendant No.2 have filed
suit in the year 2017 to counter blast the same by
creating Will filed the P & S.C on 3.9.2018.
Admittedly, according to the Plaintiff, he came to
know about the Will in the year 2016 and then he
used to request the Defendant No.1 to jointly execute
the Will, but he refused to do so and instead filed the
40 OS No.25008/2020
suit for partition in the year 2017. Thereafter the
Plaintiff filed written statement in O.S.No.2981/2017
on 14.8.2017 and in the written statement he has
stated about Ex.P.1 Will, thereafter he filed the suit.
Anyhow, the prima-facie materials discloses that the
Plaintiff is able to prove that deceased Dr. N.
Kasinath and Smt. Channaveeramma have validly
executed the Will as per Ex.P.1.
40. Further it is the another contention of the
Learned Counsel for the Defendant No.1, 6 to 9 is
that there is no recitals in the Gift Deeds about the
execution of the Will and if at all the testators have
really executed the Will what was the necessity for
them to execute Gift Deeds after 05 months from the
date of alleged Will. Admittedly, some of the left out
properties are gifted and more particularly the
Defendants have accepted the Gift Deeds without
any claim and also executed declaration as per
Ex.P.11 & Ex.P.12. Moreover, the Defendants having
accepted the property through Gift Deeds and being
in possession of the same and then they filed a suit
for partition in O.S.No.2981/2017. Further it is the
intention of the testators not to disclose the facts of
41 OS No.25008/2020
the Will to anybody and the facts of the Will should
be aware only after their death. Therefore, this Court
can presume that there was no necessity for the
testators to disclose about the Willed out properties
or Ex.P.1 Will in Gift Deeds. The Will is typically
discloses and comes into effect only after the death
of testators prior to that its contents can remain
confidential. Hence, there is no weightage in the
submission of the Learned Counsel for the Defendant
No.1, 6 to 9. Further it is the another contention of the
Learned Counsel for the Defendant No.1, 4, 6 to 9 is
that in the Will it is not mentioned that who has
prepared the Will. The another witness to the Will
was not at all examined. Further also taken up
contention that the Will was not at all registered and
not at all been proved according to Section 63 of the
Indian Evidence Act. Further also taken up
contention that PW.2 is the interested witness etc.
Further also taken up contention that more properties
have been given to the Plaintiff in Ex.P.1, than to
others and in this regard, no specific reasons has
been mentioned in the Will. The Plaintiff was not at
all taking care of the testators during their lifetime.
42 OS No.25008/2020
Therefore, the Plaintiff in order to grab the major
properties of the testators has created Ex.P.1 Will etc.
41. Admittedly, DW.2 has clearly admitted in
his cross-examination that the Plaintiff was taking
care of Dr. N. Kasinath and Smt. Channaveeramma
and was residing along with them during their last
days etc. Further the Plaintiff does not know who
has prepared the Will, because only after the death
of Dr. N. Kasinath and Smt. Channaveeramma, he
came to know about the Ex.P.1 Will. According to
Plaintiff, another attesting witness is not in a position
to attend the Court as he had been undergone heart
surgery and he was not able to move, therefore,
question of examining another witness does not
arise. Further on careful perusal of the evidence of
PW.2 it is clear that his evidence cannot be said as
worth-full, there is no worth materials elicited from
his mouth to show that he is an interested witness in
this suit. On the other hand, as discussed supra
nothing worth has been elicited from his mouth to
disprove his evidence. On the other hand, he is the
natural witness and gave evidence. Merely because
he is the friend of the Plaintiff is not a ground to say
43 OS No.25008/2020
that in order to help the Plaintiff he has falsely
deposed before the Court. On the other hand, he
frankly stated before the Court that he does not
know the contents of the Will, but the Will has been
executed by Dr. N. Kasinath and Smt.
Channaveeramma in their house at Shanthinagar, at
the time of execution of the Will himself both testators
and the tenant were present.
42. Though the Learned Counsel for the
Defendant No.1, 4, 6 to 9 disputed the evidence of
CW.1 Handwriting Expert, but in order to show that
he is an interested witness nothing has been placed
before the Court. On the other hand, the Handwriting
Expert has clearly deposed before the Court that the
signatures of Dr. N. Kasinath and Smt.
Channaveeramma found in Ex.P.1 Will is duly
tallying with their admitted signatures found in
Ex.P.6. Even this Court also compared the signatures
of testators on Ex.P.1 with Ex.P.6 and found that
there is no changes in the said signatures of the
testators found in Ex.P.1 Will with the Ex.P.6. Merely,
there was some minor variation in the signatures are
not at all sufficient to come to conclusion that Ex.P.1
44 OS No.25008/2020
Will has been created by the Plaintiff to grab the Suit
Schedule Properties. More importantly, the Defendant
No.2 who is the elder son of Dr. N. Kasinath has
clearly admitted in his cross-examination that Will
Ex.P.1 has been executed Dr. N. Kasinath and Smt.
Channaveeramma. Further also admitted that the
Plaintiff was residing with his parents and taking
care of their welfare. Weakly once he was also
visited his parents. Further he clearly admitted that
his father was hale and healthy prior to execution of
the Will. At the time of death of his father he was
having age related issues. So, this admission of
DW.2 is also clearly goes to show that the Dr. N.
Kasinath and Smt. Channaveeramma have validly
executed Will as per Ex.P.1 and prior to execution of
the Will both testators were hale and healthy and
with their sound disposing state of mind only they
have executed the Will. Therefore, there is no
suspicious circumstances surrounding about the
valid execution of the Will by the testators.
43. In view of the discussions made above it is
clear that what are the decisions which relied upon
by the Learned Counsel for the Defendant No.1, 6 to
45 OS No.25008/2020
9 are not at all attracted to the facts and
circumstances of this case, as there is no suspicious
circumstances surrounding about the valid execution
of the Will by the testators in this case. Even the
Plaintiff by examining one of the attesting witness of
the Will proved the valid execution of the Will by the
testators.
44. Further as argued by the Learned Counsel
for the Plaintiff and the Defendant No.2, the
registration of the Will is also not at all mandatory. In
the instant case, on careful closure scrutiny of the
Ex.P.1 Will and the subsequent proceedings including
the detailed forensic report and as well as evidence
of CW.1 and also entire evidence of Defendant No.2
and facts and circumstances of the case, that the
execution of the Will by the testators has been proved
the Plaintiff and there is no suspicious circumstances
surrounding on the execution of the Will by the
testators. Hence, this Court is on the opinion that the
Plaintiff is able to prove that Dr. N. Kashinath and
Channaveeramma have jointly executed Will dtd:
21.7.2014 and in the said Will the Plaintiff and
46 OS No.25008/2020Defendant No.1 have been nominated as joint
executors under the Ex.P.1 Will.
45. The Defendant No.1 also taken up
contention in the written statement that the suit of
the Plaintiff is bad for non-joinder of necessary
parties, as the legal heirs of the deceased Vijaya
Kumari are not arrayed as parties to the
proceedings. Hence, the suit is bad for non-joinder of
necessary parties and same is liable to be
dismissed. Admittedly, Late Vijaya Kumari who is
the wife of Defendant No.1 reported to be dead on
4.9.2017 and her legal heirs i.e., the Defendant No.1,
Defendant No.6 to 9 were already brought on record
by the Plaintiff by filing IA.No.1/2022 dtd:
7.11.2022. Even the amended plaint was also filed
on 4.3.2023. When already the LRs of Late Vijaya
Kumari were brought on record, question of
dismissing the suit on the ground of non-joinder of
parties to the proceedings does not arise.
Accordingly, I answer Issue No.1 & 2 in the
Affirmative and Issue No.3 in the Negative.
47 OS No.25008/2020
46. Issue No.4:-
In view of the detailed discussion and findings
given by this Court on the foregoing issues, it is clear
that the Plaintiff is able to prove that Late Dr. N.
Kashinath and Channaveeramma have jointly
executed Will dtd: 21.7.2014 in respect of the Suit
Schedule Properties and the Plaintiff and Defendant
No.1 have been appointed as executors of the said
Will. Therefore, the Plaintiff is entitled for probate.
47. In so far as scope of probate proceedings is
concerned, it is appropriate to refer some of the
rulings of the Hon’ble Apex Court which are as
follows:
48. As per the decision of the Hon’ble Apex
Court in the case of Krishna Kumar Birla V/s
Rajendra Singh Lodha, reported in (2008) 4 SCC
300), wherein it is held that,
“The jurisdiction of the Probate
Court is limited being confined only to
consider the genuineness of the Will. A
question of title arising under the Act
cannot be gone into the probate
proceedings, construction of a Will
relating to the right, title and interest of
48 OS No.25008/2020
any other person is beyond the domain of
the Probate Court.
49. As per the decision of the Hon’ble Apex
Court in the case of Kanwarjit Singh Dhillon V/s
Hardyal Singh Dhillon, reported in 2007 (11)
SCC 357, wherein it is observed that,
“The Probate Court does not decide
any question of title or of the existence
of the property itself”.
50 As per the decision of the Hon’ble Apex
Court in the case of Basati Devi V/s
Raviprakash Ram Prasad, reported in (2008) 1
SCC 267, wherein it is held that,
“The Probate Court in disputably
exercises a limited jurisdiction and it is
not concerned with the question of title.
Further the Hon’ble Apex Court has observed
that,
“The Judgment rendered in a
Probate proceedings is a Judgment in
Rem. But its application is limited. A
Judgment rendered in a Probate
proceedings would not be determinative
of the question of title”.
49 OS No.25008/2020
The principle laid down by the Hon’ble Apex
Court is squarely applicable to the case on hand.
51. As aforesaid, the Plaintiff has not only
produced the Ex.P.1 Will executed by deceased Dr. N.
Kashinath and Channaveeramma at Ex.P.1, but also
examined one of the attesting witness as PW.2 to the
Will, Further also got appointed a Handwriting
Expert to prove the signatures of testators on the Will
and he has also clearly opined that the signatures
found on the Will were of the testators. The executors
of the Will were neither the minor, nor the person of
unsound mind, nor he has been disqualified in any
other law as required under Section 223 of Indian
Succession Act 1975.
52. Proceedings for grant of Probate is summary
in nature, and even if the evidence is lead, the
finding given therein would not operate as
resjudicata and the scope of enquiry is very much
limited, and the disputed question of status of the
parties cannot be gone into in the application for
grant of Probate. It categorically provides that no
decision under Part-IX upon any question of right
50 OS No.25008/2020
between the parties shall be held to bar the trial of
the same questions in any suit, or any other
proceedings between the same parties.
53. It is an admitted fact that already wife of
the Defendant No.1 and Defendant No.2 have
already filed O.S.No.2981/2017 against the
Defendant No.4 and the Plaintiff for the relief of
partition and separate possession of their share in
respect of Suit Schedule Properties. Therefore, this
Court cannot say anything about the right of the
parties to the proceedings in respect of the Suit
Schedule Properties. Accordingly, on careful scrutiny
of the oral and documentary evidence placed by the
parties to the suit, it is clear that the Plaintiff and
Defendant No.1 being the joint executors of the
Ex.P.1 Will executed by Dr. N. Kashinath and
Channaveeramma are entitled for grant of probate in
order to administer the assets of the deceased Dr. N.
Kashinath and Channaveeramma as per Ex.P.1 Will.
54. Under the above circumstances, it is just,
proper and necessary to grant probate as prayed for
and both the Plaintiff and Defendant No.1 are
51 OS No.25008/2020
directed to act as joint executors as per the said Will.
Hence, I answer this Issue in the Affirmative.
55. Issue No.5:-
In view of the findings on the above issues, the
suit of the Plaintiff deserves to be decreed without
cost. Accordingly, I proceed to pass the following:
ORDER
The suit of the Plaintiff is hereby
decreed.
Acting U/Sec. 264 R/W Sec. 222
of Indian Succession Act, Probate of
Will executed by Late Dr. N.
Kashinath and Channaveeramma
dtd.21.7.2014, is jointly granted in
favour of the Plaintiff and Defendant
No.1 who are named as joint
executors in the said Will, enabling
them to administer the estate left by
deceased Dr. N. Kashinath and
Channaveeramma, as per the
contents of their Will dtd. 21.7.2014
– Ex.P1, after collecting necessary
Court Fee/Stamp duty.
52 OS No.25008/2020
Office is directed to annex the true
copy of the Will dtd. 21.7.2014 –
Ex.P1, along with the Probate,
granted to the Plaintiff.
As per Sec. 294 of Indian
Succession Act R/W Rule 18 of the
Rules governing Probate and
Succession Matters, 1966, the
Original Will dtd. 21.7.2014 – Ex.P.1
is directed to be kept in the safe
custody by following procedure
enumerated in Rule 18 of the Rules
governing Probate and Succession
Matters, 1966.
No order as to costs.
Draw decree accordingly.
(Dictation given to the Stenographer, transcribed by her,
after correction, signed and pronounced by me in the open court on
this the 4th day of April 2026).
Digitally signed by NARAYANAPPA NARAYANAPPA SRIPAD SRIPAD Date: 2026.04.07 17:29:14 +0530 [Sri. Sreepada N] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73). 53 OS No.25008/2020 SCHEDULE PROPERTIES
Properties allotted to the share of the Plaintiff
Sri. Mahesh under the Will dated: 21.7.2014:
Item No.1
One Room with attached toilet in the Suit Floor together with
an undivided share of 50 square feet in the lands in the
Property bearing No.2/11, Nanjappa Road, Muniswamy
Garden, Shantinagar, Bengaluru-560 027.
Item No.2
One BHK in the Suit Floor of the Property bearing
No.2/11, Nanjappa Road, Muniswamy Garden, Shantinagar,
Bengaluru-560 027.
Item No.3
One 3 BHK in front of the first floor and 2 BHK in the
rear of the first floor of the building bearing No.2/11,
Nanjappa Road, Muniswamy Garden, Shantinagar,
Bengaluru-560 027, together with the rents received
therefrom.
Item No.4
All other Apartment and Rooms in the building together
with remaining undivided share in the lands in the property
bearing No.2/11, Nanjappa Road, Muniswamy Garden,
Shantinagar, Bengaluru-560 027.
Item No.5
One paid gold bangles with studded stones, one row
gold chain with a Dollar and Gold belt described as item
54 OS No.25008/2020Nos.4 to 6 in the Second Schedule to the Will dated:
21.7.2014.
Item No.6
The entire amount in the S.B. Account
No.04572010019020 standing in the name of late
Smt.Channaveeramma with Syndicate Bank, Shanthinagar
Branch, Bangalore and S.B. Account No.1882 standing in the
name of Dr. N. Kasinath with Canara Bank, K.H. Road,
Bangalore.
Item No.7
Hyundai Assent Motor Car bearing Registration No.KA-
01-MD-2893.
Item No.8
Fixed Deposit amount of Rs.80,00,000/- (Rupees eighty
lakhs only) with Syndicate Bank, Shanthinagar Branch,
Bangalore, along with interest accrued thereon in the FD
Sl.No. SBE 525186, A/c No.04574070000995/2 dated:
13.7.2016.
Properties allotted to the share of the 3 rd Respondent,
Smt. Jayarathna wife of Prem Kumar under the Will
dated: 21.7.2014:
One Gold necklace described as Item No.1 in the Second
Schedule of the Will dated: 21.7.2014.
Properties allotted to the share of the 4th
Respondent, Smt. Sujatha, wife of Sri. Natesh M, under
the Will dated: 21.7.2014:
55 OS No.25008/2020
Two pairs (4 Nos.) of Gold Bangles described as Item
No.3 in the Second Schedule to the Will dated: 21.7.2014.
Properties allotted to the share of the 2nd
Respondent, Sri. Prem Kumar under the Will dated:
21.7.2014:
Item No.1
One Room with attached toilet in the 3 rd Floor with a
right to park one motor vehicle in the stilt floor along wit 50
square feet of undivided share in the land in Property
No.2/11, Nanjappa Road, Muniswamy Garden, Shantinagar,
Bengaluru-560 027.
Item No.2
One Gold Karadige described as Item No.7 in the
Second Schedule to the Will dated: 21.7.2014.
Properties allotted to the share of Late Smt.
Vijayakumari, under the Will dated: 21.7.2014 – now
being succeeded by her legal heirs, i.e., her husband
Sri. M. Prasad & her children:
Item No.1
One 2 BHK Apartment in the rear portion of ground floor
of first schedule property along with the right to park one car
in the stilt floor and 100 square feet of undivided share in the
property bearing No.2/11, Nanjappa Road, Muniswamy
Garden, Shantinagar, Bengaluru-560 027.
56 OS No.25008/2020
Item No.2
Two pairs (4 Nos.) of Gold bangles descried as Item No.2 in
the Second Schedule to the Will dated: 21.7.2014.
Properties allotted to the share of the 5th Respondent,
Smt. C.V. Kalal under the Will dated: 21.7.2014:
One 3 BHK Apartment situated in the front portion of
ground floor of the property bearing No.2/11, Nanjappa Road,
Muniswamy Garden, Shantinagar, Bengaluru-560 027.
ANNEXURES
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 : Mahesh. PW.2 : R. Avinash.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 : Will dtd: 21.7.2014 executed N. Kashinath
and Channaveeramma.
Ex.P.2 : Death Certificate of Dr. N. Kashinath.
Ex.P.3 : Death Certificate of Channaveeramma.
Ex.P.4 : Sale Deed dtd: 1.3.1962.
Ex.P.5 : Certified copy of Partition Deed dtd:
15.7.1982.
Ex.P.6 : Registered Gift Deed dtd: 24.2.2010.
57 OS No.25008/2020
Ex.P.7 : Special Notice issued by the BBMP
U/Sec.147 of KMC Act.
Ex.P.8 : Bank Passbook of Channaveeramma.
Ex.P.9 : Bank Passbook of Dr. N. Kashinath.
Ex.P.10 : Fixed Deposit Receipt standing in the
name of Channaveeramma.
Ex.P.11 : Declaration given by Defendant No.1.
Ex.P.12 : Declaration given by Defendant No.4.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1 : Mr. Prasad. DW.2 : Premkumar. DW.3 : Sujatha Natesh.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D.1 : Certified copy of Gift Deed dtd:
15.12.2014 executed by Mrs.
Channaveeramma in favour of
Vijayakumari.P.Ex.D.2 : Certified copy of Gift Deed dtd:
15.12.2014 executed by
Mrs.Channaveeramma in favour of Mr.
K.Mahesh.
Ex.D.3 : Certified copy of Gift Deed dtd:15.12.2014
executed by Mrs. Channaveeramma in
58 OS No.25008/2020
favour of Mrs. Sujatha Natesh.
Ex.D.4 : Certified copy of plaint in
O.S.No.2981/2017.
Ex.D.5 : Discharge summary issued by Bhagwan
Mahaveer Jain Hospital.
Ex.D.6 : Digital copy of Gift Deed dtd: 15.12.2014.
Ex.D.7 : Digital copy of Encumbrance Certificate.
Ex.D.8 : Digital copy of Tax Paid Receipt.
Ex.D.9 : Certificate U/Sec.65B of Indian Evidence
Act.
Digitally signed by NARAYANAPPA NARAYANAPPA SRIPAD SRIPAD Date: 2026.04.07 17:29:00 +0530 [Sri. Sreepada N] LXXII Addl. City Civil & Sessions Judge, Bengaluru. (CCH-73).