MALLAPPA NINGAPPA METI Vs. TIPAVA GUDADAPPA METI

JUDGEMENT

(1.) This is an appeal from the District Judge of Bijapur, and the petitioner, who is the appellant, was applying for letters of administration with the will annexed in respect of the estate of one Gudadappa who died on October 29,1925, and whose will was made on November 23, 1920. The widow of the testator opposed the will, and she is the respondent on this appeal. There were three issues raised, viz.:- (1) Is the execution of the will, Exhibit 79, proved ? (2) If so, was the deceased Gudadappa of a sound disposing mind at the time of execution ? and (3) Did he make and execute the will through the undue influence exercised over him by Ningondappa bin Mallappa Jogaredder?

(2.) The learned Judge answered the first issue in the affirmative, that is to say, he held that the will was executed. He answered the second issue in the negative, that is, that the testator was not of sound disposing mind at the time of execution, and he held that the third issue was unnecessary, although he deals with it shortly in the last paragraph of his reasons. His reasons were given at very considerable length, and he went through the evidence in great detail, and expresses his opinion as to the veracity of most of the witnesses,

(3.) The relevant facts are these. The testator down to the year 1918, when he was about twenty-three years of age, was living with his mother and his two young sisters. His mother died in October 1918, and some four months later his mother's brother Ningondappa took the testator and his sisters to live with him at Kamdal. The testator had been living with his mother at Tolmatti where the family lands and house were, and he was taken by Ningondappa to Kamdal which was about twelve miles away. There is a suggestion that all the testator's moveable property was also taken at the same time, and that that movable property has not been heard of since, but I do not propose to discuss the evidence as to that, because I do not think the point is of any real consequence in considering the validity of the will. Soon after the testator removed from his house at Tolmatti, his widow, who was a child at that time about twelve of thirteen years of age, and her mother went to live in his house, and they were shortly afterwards turned out of the house by Ningondappa and by the present appellant Mallappa, who lived himself at Tolmatti, and certain criminal proceedings were taken by the testator's mother-in-law against Ningondappa and Mallappa, but these were disposed of in December 1919, and no order in the matter was made. About November 1919 Ningondappa married the testator's elder sister Mallava. She was a child at that time of about twelve years old, and Ningondappa had certainly one if not two other young Avives living at the time, and he has admitted in evidence that he received a dowry amounting to Rs. 200 upon the marriage. On the same day he married his own sister to Mallappa. The next relevant fact, I think, is that the testator's will was made on November 23,1920. He continued apparently to live with Ningondappa, and he probably went some times to Tolmatti to collect rent, but there is no definite evidence as to how often he went. In October 1925 the testator was found drowned in the river. The suggestion is that he had an epileptic fit and fell into the river when he was in that condition. Now the testator's will is in these terms. He says:- I belong to Tolmatti in Bagalkot Taluka. I sometime get fits of epilepsy, I have got a wife by name Tippawa who is ten or eleven years old and a minor. You being my uncle," (the will is addressed, I should say, to Mallappa) "you have been taking proper care of me. I am quite sure that you will continue to take care of me hereafter also. As it is my desire that the property described below should go to you in case I die suddenly, I make this will." Then follows a description of some lands and a house, and the will proceeds:- You should take all the property shown above (in this way) after my death and enjoy it as owner. And you should go on paying Rs. 60 a year to my wife during her lifetime as her maintenance. As you are my husband and uncle, I have got a desire that my property should go to you. Hence I made this, I myself shall enjoy the above said property during my lifetime only, After my death you should take all my property, and enjoy it as owner as written above. Nobody has any objection to it. Thus is the will made by me of my own free will and when in sound state of mind, dated 23 November 1920. Now Mallappa, who is the principal beneficiary under the will and propounds it, married, as I have already stated, about a year before the date of the will the sister of the testator's mother, so that Mallappa was not accurately described as an uncle in the will according to the literal meaning, so I am told, of the word used in the will. He lived at Tolmatti, and there is no evidence whatever that he had in fact been taking care of the testator, as the will states that he had been doing, or that he continued to [ take care or ever intended to take care of the testator after the date of the will The circumstances in which the will came to be made are quite shortly these. The testator with Mallappa and two attesting witnesses to the will and a gentleman named Bindu went to a pleader named Haveri in Bagalkot for the purpose of getting the will made. Haveri was the lawyer of Nin gondappa, and had no doubt been recommended by him. The will was, I think, drafted by Haveri, and it was then copied out by his clerk Shrinivas, and according to the evidence of the appellant himself, Shrinivas, the pleader's clerk, both the attesting witnesses, and Bindu who was present, the will was in fact read out to the testator before he signed it. It is not disputed on this appeal that the signature on the will is in fact the signature of the testator. On the same day the will was taken by the testator and registered, and Bindu accompanied him to the Registrar's office and identified him before the Registrar.