RAMKISHAN RAO ALIAS BABURAO Vs. SHRINIVASA RAO

JUDGEMENT

(1.) This appeal involves the determination of the question whether the and defendant, Venkatarao Datar, retired Deputy Secretary to the Government of Hyderabad in the Finance Department, had become a Sanyasi after due performance of the ceremonies necessary for this purpose on the 17th Shere- war, 1346-F and whether notwithstanding the fact of his becoming a Sanyasi which in law is deemed to be a civil death, he executed a will on 1st Meher, 1356-F by which he gave the suit house to the 3rd defendant, his grandson Murlidhar, son of the plaintiff, Ramkishan.

(2.) It may be stated that the and defendant has two sons, the plaintiff and the 1st defendant. The plaintiff alleged that his father, the and defendant, after ceasing to have any, interest in the affairs of the world, divided the properties between the members of the family on the 17th Sherewar, 1346-F and executed a memorandum of a partition on the same day. In pursuance of this partition, the and defendant put them in possession of the moveable and immoveable properties, renounced the world and took the vows of a Sanyasi. After a few months, on the insistence of the father in-law of the 1st defendant, who is a lawyer, another list of the properties was executed on the 8th Aban 1346-F by himself and the 1st defendant in which the properties which are in the possession of the plaintiff and the 1st defendant as also the fact of the prior partition were mentioned. The plaintiff further averred that the suit house No. 3113-B situate in Gowliguda had been allotted to his share and had since the partition been in possession of the same ; that since the two houses which were allotted to the share of the 1st defendant were already rented out and the 1st defendant had no place to live in, he expressed a desire to live in that house temporarily and consequently the plaintiff permitted him to reside in one portion of the house; that the and defendant was also living in one of the rooms as a Sanyasi with the permission of the plaintiff; that the 1st defendant on the 17th Sherewar, 1356-F, mala fide refused to vacate the house and apprehending a suit against him by the plaintiff for ejectment the defendants conspired and brought into existence a document on the 1st Meher, 1356-F calling it a will, even though partition had taken place as long ago as I346-F. In these circumstances, it is stated that the and defendant had no right to execute any such document, nor could he do so by reason of his becoming a Sanyasi, which fact also deprived him of rights in his property, and consequently the recital in the will that the suit house was given to his son, Murlidhar, the 3rd defendant, has no validity or effect against the plaintiff. The plaintiff, therefore, prayed for cancellation of the will dated 1st Meher, 1356-F, which cast a cloud on his title to the house, for ejectment of the defendants therefrom and for possession thereof.

(3.) The 1st defendant and the and and 3rd defendants filed two separate written statements. The 1st defendant stated that the entire property, both moveable and immoveable, including the suit house was the separate property of his father and that his father with a view to spending a great part of his time in the company of an ascetic Mathaji, gave the key of the safe as well as possession of his properties to his elder brother, the plaintiff, after making out a list of the same ; but even after this the family was living jointly with their father, eating and drinking as heretofore. It was contended that the plaintiff has brought this suit due to misunderstandings between the ladies and with a view to harassing the defendants.