VENKAT RAO Vs. NAMDEO

JUDGEMENT

(1.) The only question in this case is as to the genuineness of a nuncupative will or oral disposition of his property alleged to have been made by Vishram Patil, a malguzar or landowner of Lonsaoli in the Wardha District of the Central Provinces, who died on the morning of Tuesday, 23 December 1919, aged 70, leaving two widows, but no children. The will is alleged to have been made on the evening before he died, and again, by way of confirmation, on the following morning shortly before his death. No probate was necessary, but Namdeo, the principal beneficiary, having obtained mutation of names in his favour as regards the deceased's lands, with the consent of the widows, who took widow's estate in the absence of a will, two of the next reversioners or presumptive heirs of the deceased, who would have been entitled to succeed on the determination of the widows' estate, deeming that the order for mutation cast a cloud upon their title, instituted the present suit, under S. 42, Specific Relief Act, for a declaration that the deceased had died intestate, against Namdeo, the principal beneficiary under the alleged will, joining as defendants 2 and 3 the two widows, who supported him, and as defendant 4, his father, Govind Rao, the remaining reversioner, who was unwilling to be joined as a plaintiff.

(2.) The suits came by transfer before the Additional District Judge of Wardha, and the case made in the plaint was that Vishram died of typhoid fever, and was unconscious, and had lost all control of his functions for several days before his death. The written statement of Namdeo, defendant 1, after setting out at some length that he had been brought up by the deceased and his wives as their own child and treated as heir, set out the defendants' case as to the alleged will in the following terms : "11. Vishram got fever on 16 December 1919. It was an ordinary fever and Vishram Patil could not in any sense then be said to be bedridden. When the fever did not subside for a week he feared that the illness might take a more serious turn, and in view of his old age, Vishram Patil orally declared on 22 December, 1919, at 8 p. m." (in the night) that, if he were to expire in that illness, defendant 1 would be the owner of all his moveable and immovable property after his death. The testator declared his last will in words to the following effect in the presence of several persons including his relations and his two wives : ' I brought up Namdeo from his childhood as my son. He will be the owner of my estate after my death. He will, according to my wishes, gift to the Deosthan the Dorli fields that I intended to gift, and he will provide for my ladies. I am sure of this.' Vishram Patil was quite conscious and in his senses when he made this testamentary disposition of his property. He was in full possession of his mental powers and quite in his senses the whole night. He ordered a feast to the Brahmins and relatives to be arranged on the 24 and caused letters of invitation to be written partly by this defendant and partly by plaintiff 2. Some of the letters intended for persons living at a distance were dispatched on 22 December, 1919, at night, and others were kept over for being sent the next day." "12. Early in the morning of the 23 (Tuesday) he sent for the father of this defendant and asked him to look to arrangements for the contemplated feast. In the meantime he felt inclination to answer the call of nature, and insisted on being taken down the cot for that purpose. While he was answering the call he felt giddy and extremely exhausted. He felt that his end was drawing near and he expressed his fears that he would not survive to see the feast during which he thought of executing some writing embodying his last wishes in regard to the disposition of his property, but he enjoined on all those present to help in giving effect to the wishes already expressed by him orally on the previous night. He was at this time fully conscious. His strength then began to fail him, and he lapsed into a languid state. He died at 8 a. m. on 23 December 1919. Under these circumstances a formal writing and the contemplated feast could not be held."

(3.) The widows, written statement alleged that on the night preceding his death Vishram : " Unequivocally declared that his estate should devolve on defendant 1, Namdeo, and he said that he felt no doubt that defendant 1, would gift the fields at Mauza Dorli to the Murlidhar Deosthan founded by him (as a religious endowment) and that defendant 1 would look after defendants 2 and 3. The same wish was repeated about the early morning of the day on which he died." The sole issue : " Did Vishram make an oral bequest to defendant 1, as alleged by the latter ?" threw the onus on defendant 1, and put him in the same position as if he had been propounding the will for probate.