VENKAYYAMMA GARU; VENKATARAMANAYYAMMA BAHADUR GARU Vs. VENKATARAMANAYYAMMA BAHADUR GARU; VENKAYYAMMA GARU

JUDGEMENT

(1.) A Hindu gentleman named Venkat Rao living in the Province of Madras where the Mitakshara Law prevails died in 1869 leaving one widow who died in July 1875 and one daughter who died in 1884. He left no other widow and no descendant except his daughter and her issue. His daughter married and left two sons, viz., Niladri and Appa Rao. Niladri was born in his grandfather's lifetime and died in 1892; Appa Rao was born after his grandfather's death and died in 1901. Venkat Rao's property was his own separate property. The litigation which has culminated in these appeals is between persons claiming under these two brothers, grandsons of Venkat Rao; and the main questions raised on the appeals and which their Lordships have to determine are as follows, viz.: 1. Did Venkat Rao leave a will, or did he die intestate?

(2.) If he died intestate did his property descend on the death of his daughter to her two sons jointly with benefit of survivorship or jointly or in common without benefit of survivorship? In the latter case Niladri's share would on his death devolve on his widow and children. 2. There was a subordinate question relating to a supposed will of Niladri in favour of his widow but this will was found to be a forgery by two Courts in Madras, and it has not been seriously contended before their Lordships that this alleged will can be now relied upon. No further allusion will therefore be made to it.

(3.) As regards the first question it is clearly proved that Venkat Rao made a will disposing of his property in favour of his wife for her life and after her death in favour of his daughter for her life and after her death in favour of his grandson by her, i.e., Niladri. This will was made in 1866 when Venkat Rao was ill; it was put into an envelope and was deposited and registered in the office of the District Registrar where it remained until he died. Venkat Rao however recovered from his illness and in 1867 he executed a power-of-attorney appointing a vakil to obtain the will out of the Registry and to restore it to him. Owing to some blunder this was not done. Venkat Rao's intention to get his will back into his own possession and not to leave it as it was cannot be doubted. There is some evidence to show that he believed he had destroyed it. He certainly cancelled some grants of land recited in it. Persons existed whose interest it was to claim under it but no one ever did so although it is difficult to believe that none of them knew of it. For nearly 30 years no one ever thought of asserting any claim under it. The revocation of this will does not depend on any English Ordinance or Code; and actual destruction or a formal revocation in writing are not essential to constitute revocation see Pertab Narain Singh V/s. Subhao Kooer (1877) L.R. 4 I.A. 228 (245); I.L.R. 3 Calc. 626 (643) at page 245 of the report in 4 I. A. The District Judge who saw the witnesses came to the conclusion that the will was revoked and id's decision has been affirmed by the High Court.