VINAYAK NARAYAN DATAR Vs. SAKHARAM LAXMAN MAHAJAN

JUDGEMENT

(1.) THE appellant Vinayak's application for probate of a document alleged to be the last will and testament of Vithal Balwant Mahajan of Nagpur, who died at Umarkhed (Yeotmal) on the 18th September 1924, has been dismissed by the Additional District Judge, Nagpur. The appellant is a natural brother of the deceased The application was opposed by the present respondent Sakharam who denied that the will in question, which is alleged to have been executed on the 10th September 1924, two days before the testator died, was ever executed by him. It was also denied that, in any event, the testator was in a disposing state of mind at the time when the alleged will is said to have been executed by him, and the contention was frankly put forward that the will in question was a forgery, which had been effected as a result of the conspiracy between the present appellant Vinayak Narayan Datar, Mr. S.G. Gadgil, Pleader, and Bhaskar Sadasheo Kelkar, alias Aba, with a view to appropriating the estate for the benefit of the persons who are? legatees under the will.

(2.) IT is unnecessary here to repeat the various pleadings which were put forward on either side by the parties to this litigation, but, on the issues which arose on these pleadings, the Additional District Judge gave the following findings:

(3.) IT will help to clarify the position if we give a short resume of events which occurred during the last six months of the testator's life. He took ill at Nagpur in February or March 1924. First of all, malaria was suspected and subsequently tuberculosis : of the evidence of Dr. Khare (P. W. 3) who was attending the testator. On his advice, Vithal Balwant Mahajan was removed to Bombay, partly in order that he might . get the advice of specialists and partly in order to avoid the heat of Nagpur. Meanwhile, the respondent Sakharam had also left for the Konkan in the Bombay Presidency. The testator and the appellant left Nagpur for Bombay in June 1924. In Bombay, the medical opinion was that the disease from which the testator was suffering was not tuberculosis. On the 10th of July 1924 he left Bombay for Umarkhed (Yeotmal) where ha went to reside with Raghunath Bhaskar Kelkar (P. W. 5), Assistant; Medical Officer, who was then stationed there. The relationship of this man to the family will be seen from the genealogical tree contained in annexure A. The genealogical tree is not material for this report.