DAHYABHAI MANSUKHRAM SHAH Vs. KANAIYALAL MAGANLAL

JUDGEMENT

(1.) The substantial question in this appeal is whether the document, Exhibit 3, was the will of one Vrijvallavdas Umedram, who died on October 3, 1925, or whether it was merely the draft of a will which in fact was never made. The date of the alleged will cannot be stated with any precision. The learned Judge thought that the age of the deceased in this instrument had been originally put as sixty one, but- was subsequently altered to sixty-five, He consequently infers that the original document was made in 1916, and that it was subsequently altered in 1920. That in fact part of it was made in or after 1920 appears from an apparent addition on the second page of the document which refers to a house purchased in February 1920. That addition has been translated "and I have purchased at present other house bearing Municipal Census No..." The words "at present" we are told should be more correctly translated as "recently." That then is as far as we can get as to the date of the alleged will, apart from some scanty oral evidence I will refer to later.

(2.) The learned Judge has found that the document was in the handwriting of the deceased, and for the purposes of my judgment I will assume that to be the fact. On the other hand, it was not signed by him at the foot, and the most that can be urged as to any signature is merely the statement at the head of the document: "I, Shah Vrijvallavdas Umedram...make this will as follows." Nor is the Yadi (which is on a separate sheet of paper) signed by the deceased, apart from the fact that at the head of the Yadi there is a statement: "I, Shah Vrijvallavdas Umedram have executed a will on the date...of Samvat year 1976. I have stated there in to prepare a Yadi of my moveable property and to prepare a separate Yadi of its disposition. I prepare the Yadi as stated below."

(3.) Further, it is clear that on the face of the alleged will there have been substantial alterations made as regards what is to happen in the event of the death of the appellant Dahyabhai. The original document provided that in the event of the appellant's death without leaving issue, then Sornabhai, his brother, was to succeed and in the event of the latter's death without leaving issue then Kanaiyalal the respondent was to be the heir. But these dispositions in favour of Somabhai and Kanaiyalal have been struck out. There are also certain other alterations that have been made, but, as pointed out by counsel for the appellant, the document after all these alterations have been made appears to read as one document.