SHANKAR MAHABLESHWAR BHATT Vs. MANJUNATH SUBBA BALGYA

JUDGEMENT

(1.) We think the decree of the Trial Court must be restored. The learned Judge was of opinion that the 2nd defendant did not prove that, according to the terms of the Will of his father, defendant No. 3 was not entitled to any share in the plaint property. The Will, no doubt, standing by itself, is one which it would be very difficult to construe according to English ideas, but it was clearly intended that if Venkatesh behaved himself well, he should get half the share in his father's property. But the evidence shows that whatever Venkatesh's conduct may have been at the time the Will was written, he was living in amity with his brother, and presumably with his father at the time the father died. The Judge says: "It appears from the evidence of Exhibit 39 a witness for defendant No. 2 that after the death of the testator which took place immediately after the date of the Will the two brothers lived in amity for 2 or 3 years. There is no evidence to say that during this period defendant No. 5 was not leading a respectable life."

(2.) The condition in the Will was that Venkatesh should turn to good ways and reside with Manjunath respectably then only Manjunath should give the other half to Venkatesh. It was open to Manjunath to prove that the uncertain event, on the happening of which half the share was to go to Venkatesh, had not happened. But we find from Exhibit 38, which was his conveyance to the 1 defendant, that he admitted that, in accordance with the father's Will, himself and Venkatesh were together enjoying the below described property as rightful owners. Therefore, when he sold his half share to the 1 de-defendants he could not possibly have imagined that he was keeping the other half for himself. In any circumstances, the plaintiffs who derived title from Venkatesh are entitled to succeed.

(3.) The learned District Judge seemed to consider that half the share in the property could not possibly go to Venkatesh without a deed of transfer, but I should not be disposed to take such a strict view of the construction of a Hindu Will of this character. I think, that the provisions of Section 118 of the Succession Act would apply, so that on the happening of the uncertain event half the estate which, under the testator's Will, vested in Manjunath would become vested in Venkatesh. The appeal is allowed, the decree of the lower Appellate Court set aside and that or the Trial Court restored with costs throughout.