SHIVAPPA RUDRAPPA TENGINKAI Vs. RUDRAVA CHANBASAPPA

JUDGEMENT

(1.) [After setting out facts as above the judgment proceeded]: The first question arising in the case is whether the oral wills of Chennappa and Eudrappa are proved, According to the decision of the Privy Council in Venkat Rao V/s. Namdeo (1931) L.R. 58 I.A. 362 the onus would be on the defendants to establish the oral wills of Chennappa and Rudrappa and they would have to discharge it as if they were propounding a will for probate. Such an onus is always a heavy one as observed by their Lordships of the Privy Council in Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee (1867) 12 M.I.A. 1 (p. 28):- But if any party is bound to strictnes of pleading, it is he who seta up a nuncupative Will, He who rests his title on so uncertain a foundation as the spoken words of a man, since deceased, is bound to allege, as well as to prove, with the utmost precision, the words on which he relies, with every circumstance of time and place.

(2.) [At this point the evidence as to the oral wills by Chennappa and Rudrappa was discussed and the conclusion reached was:] The evidence, therefore, on the point of Chennappa's will is reliable as it is highly probable that Chennappa should make the oral will in the manner deposed to by the witnesses, and the likelihood of the presence of the witnesses at Chennappa's death is undoubtedly beyond question... The story of the oral wills of Chennappa and Rudrappa is, in my opinion, fully established on the evidence... Though the onus is very heavy on the defendants to establish the oral wills, I think on the whole that onus has been discharged by the defendants....

(3.) The next question is as to the effect of the oral wills of Chennappa and Rudrappa. It is contended on behalf of defendant No. 3 that the oral will amounted to a separation of the interest of Chennappa according to the decisions of the Privy Council in Girja Bai V/s. Sadashiv Dhundiraj, s.c. 18 Bom. L.R. 621, Kawal Nain v. Prabhu Lal, s.c. 19 Bom. L.R. 642, and Ramalinga Annavi V/s. Narayana Annavi, s.c. 24 Bom. L.R. 1209, on the ground that there was an unequivocal intention to separate and that the separation was established by reason of the conduct of Chennappa. In the judgment of the lower Court, paragraph 7, it is stated that it is not disputed that there was no division of the property between Chennappa and Rudrappa. The learned Subordinate Judge held in paragraph 29 that the instructions left by Chennappa about the giving of the share and making the adoption do not amount to any intention of Chennappa that he should from that moment be separate from Rudrappa. It appears to me, after making due allowance for exaggeration in the evidence of witnesses for defendant No. 2 who have given different and not quite consistent versions of the oral wills, that the instructions given by Chennappa amount to this that he directed Rudrappa to give a share to his wife Rudrava and authorised Rudrava to adopt. If Chennappa had said that he intended to separate from his brother Rudrappa and gave his eight annas share to his widow and also permission to adopt, there would have been an unequivocal and unambiguous declaration of his intention to separate. But he asked his brother to give a share to his widow and gave permission to his widow to adopt. This declaration indicates that he intended his brother Rudrappa to get the property by survivorship and directed him to give eight annas share to his widow and gave authority to his widow Rudrava to adopt. I have come to the conclusion that though Rudrava and Rudrappa were not on good terms, Rudrappa was on the best of terms with his brother Chennappa and was anxious to loyally carry out Chennappa's directions, It appears that an amount of Rs. 159-8-0 was due to the father of Chennappa and Rudrappa in respect of the contract of forest coups in the year 1903. Exhibit 179 shows that on March 2, 1914, two months after Chennappa's death and a month before Rudrappa's death, Rudrappa claimed the amount on the ground that he was entitled to it by survivorship. If Chennappa had made an unequivocal declaration that he was separate from his brother and if Rudrappa was anxious to give effect to Chennappas oral directions, he would not have claimed the amount exclusively for himself but would have divided the amount between himself and the widows of Chennappa, who claimed the whole amount by Exhibit 180, dated March 29, 1914, on the ground that they wore living separate from Rudrappa, but did not set up the separation effected by the oral will of Chennappa and claim half the amount. Chennappa did not intend to effect a present severance of interest with the intention of separate enjoyment, but his oral will amounted to a direction to Rudrava to adopt and a direction to Rudrappa to give a share to his widows. At least the intention to separate is not clearly and unequivocally expressed. If Ohennappa had expressed an unequivocal and clear intention to separate, the consent of Rudrappa was not necessary. Exhibit 214, a letter by Rudrappa dated February 3, 1914, shows that there was no amicable settlement with Rudrava, who was told by Rudrappa to go to Court on February 1, 1914, and indicates that Rudrappa did not think that Rudrava was entitled to a share by reason of Chennappa's declaration of intention to separate, but her right to a share depended on his own volition to give her a share according to his brother's directions. It appears that Rudrappa on his deathbed carried out his brother's directions and gave eight annas share by bequest to Rudrava and eight annas to his own widow Kalyanava. Chennappa did not express an unequivocal and clear intention to separate from Rudrappa, According to the decision of the Privy Council in Bal Krishna V/s. Ram Krishna, s.c. 33 Bom. L.R. 1280, (p. 221) " a separation may be effected by a clear and unequivocal intimation on the part of one member of a joint Hindu family to his co-sharers of his desire to sever himself from the joint family." And after referring to the cases in Suraj Narain V/s. Ikbal Narain, s.c. 15 Bom. L.R. 450 and Oirja Bai V/s. Sadaahiv Dhundiraj, reference is made to the dictum of Lord Haldane in Kawal Nain V/s. Prabhu Lal that (p. 161) " the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate." It does not appear from the evidence and the statement made by Chennappa that there was an unequivocal intention on his part to separate or an assertion of his right to separate. According to Vyavahara Mayukha (ch. iv, Section 3, pl. 2, Mandlik's Translation, p. 38) " even when there is a total absence of common property, a partition is effected by the mere declara 0tion I am separate from thee : for partition is but a particular condition of the mind, and this declaration is indicative of the earne." It does not appear from the evidence on the record that Chennappa intended to declare that he was separate. He asked Rudrappa to give a share to Kudrava and asked Kudrava to adopt. In pursuance of those instructions Rudrappa made an oral will giving a share of eight annas to Kudrava and the remaining moiety to his widow. The widows, however, exceeded the intention of Rudrappa by effecting a partition, Exhibit 78, by dividing the property not only between Rudrava and Kalyanava but also between the two widows of Chennappa and the widow of Rudrappa, and gave full ownership to the two widows of Chennappa to the extent of four annas each instead of annas eight to Rudrava, and gave an absolute estate of eight annas belonging to Rudrappa to Kalyanava and agreed that the three widows should adopt. The effect, therefore, of the oral dispositions of Chennappa and Rudrappa, in my opinion, is that there was an oral will by Chennappa directing Rudrappa to give a share to his .widow and also authorising Rudrava to adopt. The instructions do not, in my opinion, effect a severance of the joint property. Rudrappa gave effect to his brother's instructions by giving a share of eight annas to Rudrava and allowing her to adopt.