TOTARAM MAHARU Vs. RAMABAI

JUDGEMENT

(1.) This is an appeal filed from the order of Mr. P. T. Patil, Joint Civil Judge, Senior Division, Jalgaon, dated 30th September, 1955, dismissing the plaintiff's suit which was for a declaration of ownership and possession of certain property under the Will of his father Chavdas Dharma olhe (hereinafter referred to as 'the deceased'). The Will in question was executed by the deceased on the 4th of August, 1963, and has been tendered as Ex. No. 45 in these proceedings. The deceased died on the 12th of February, 1964, and was, at the time of his death, of the approximate age of 82 or 83 years. The plaintiff's case is that his deceased father originally bore the name of Maharu Dhondu ohe, that when the plaintiff was still a child, his father was given in adoption to one Dharma Kolhe, and that thereafter the plaintiff's deceased father changed his name to Chavdas Dharma Kolhe, and the plaintiff was also brought up in the adoptive family. According to the plaintiff, after adoption, his deceased father got a son Bhaskar died, in 1948 leaving a widow Tulsabai, that Tulsabai filed a suit, being Special Sut No. 29 of 1951, for partition against the deceased and got a decree and got her shares separated, that the plaintiff's mother also died, and that the present first defendant is the second wife of the deceased. The plaintiff's case further is, that after the partition and separation of the share of Tulsabai, the suit property remained as the exclusive property of the deceased, that the deceased had great love and affection for the plaintiff, and that the deceased, therefore, made a Will on the 4th of August, 1963, in respect of the suit property under which the plaintiff received substantial propriety benefits. The position in regard to the houses belonging to the estate of the deceased at the time of his death was that the plaintiff resided in House No. 32 situate at Aside village, that the first defendant resided in House No. 52 which was also situated in the village of Asode, and that House No. the village of Asode, and that House No. 14 at Asode was in the occupation of Defendants Nos. 2 to 9 as tenants. Under his said Will dated the 4th of August, 1963, the deceased bequeathed the said Houses Nos. 14 and 32 to the plaintiff absolutely, but as far as House No. 52 was concerned, the deceased gave a life interest to his second wife, the first defendant, and directed that after the life interest of the first defendant, the same was also to belong to the plaintiff. As far as the lands belonging to the estate of the deceased were concerned, the deceased bequeathed a life interest n Survey No. 296, situated at Mamurrabad to the first defendant and directed that it was thereafter to belong to the plaintiff. Survey No. 477/2 in the same village was bequeathed by the deceased to his daughters who it may be mentioned, are not parties to the present suit, and the said Survey Number is also not a part of the property which s the subject-matter of this suit. All other lands situated in the village of Asode, as well as Survey No. 332/4B situated in the village of Mamurabad were bequeathed by the deceased by his said Will to the plaintiff absolutely. The plaintiff has filed the suit, out of which this appeal arises, in order to enforce his rights to the properties bequeathed to him by the deceased by the said Will dated 4th August, 1963, claiming relieves by way of declaration, possession and injunction against the defendants.

(2.) Defendants Nos. 2 to 9 who, as stated above ,are tenants in occupation of various portions of House No. 14 in the village of Asodem have not appeared at any stage of this litigation . The first defendant who as however, contested this litigation has urged three main contents in order to defeat the plaintiff's suit. Her first contention was that there plaintiff who was also the General Mukhtyar of the deceased had got the deceased to execute the said Will dated 4th August, 1963, by the exercise of undue influence her second contention was that the plaintiff used to secure the deceased's signature on blank sheets of paper and had utilised one such paper for main up the will in question; and her third contention was that, in any event the deceased had no authority to dispose of the whole of the properties which he purported to dispose of by his Will dated the 4th of August 1963, in view of the suit filed by Tulsabai in which she had obtained a decree and got the separation of her share.

(3.) As many as 12 issues were framed by the trial Court but, in my opinion, the only issues which really Aries for the consideration of the Court are issues Nos. 1,2,4 and 5. Issue No. 1 relates to the question of the due execution for the will issue No.2 to the testamentary capacity of the testator; issue No. 4 to the first defendants plea of undue influence and issue No. 5 to the question as to what was the disposable property which the deceased could bequeath by Will. The trial Court answered Issues No. 1 and 4 related to the due execution of the will and to the due execution of the Will and to the due exercise of undue influence against the plaintiff, but answered Issues Nos. 2 and 5 in favour of the plaintiff and against the first defended with the result that it had to dismiss the suit, as it has done, by its order under appeal. Though Issues Nos. 2 and 5 relating to the testamentary capacity of the deceased and relating to the question as to what was the disposable property were answered by the trial Court against the first defendant, the first defendant is, by virtue of the provisions of Order 41, Rule 22 (1) of the Code of Civil Procedure entitled to support the decree on those grounds also, and indeed, the first defendant has chosen to exercise that right before us.