Amberson Marten, Kt., C.J.
1. The substantial question in this appeal is whether the document, Exhibit 3, was the will of one Vrijvallavdas Umedram, who died on October 3, 1925, or whether it was merely the draft of a will which in fact was never made. The date of the alleged will cannot be stated with any precision. The learned Judge thought that the age of the deceased in this instrument had been originally put as sixty one, but- was subsequently altered to sixty-five, He consequently infers that the original document was made in 1916, and that it was subsequently altered in 1920. That in fact part of it was made in or after 1920 appears from an apparent addition on the second page of the document which refers to a house purchased in February 1920. That addition has been translated 'and I have purchased at present other house bearing Municipal Census No...' The words 'at present' we are told should be more correctly translated as 'recently.' That then is as far as we can get as to the date of the alleged will, apart from some scanty oral evidence I will refer to later.
2. The learned Judge has found that the document was in the handwriting of the deceased, and for the purposes of my judgment I will assume that to be the fact. On the other hand, it was not signed by him at the foot, and the most that can be urged as to any signature is merely the statement at the head of the document: 'I, Shah Vrijvallavdas Umedram...make this will as follows.' Nor is the Yadi (which is on a separate sheet of paper) signed by the deceased, apart from the fact that at the head of the Yadi there is a statement: 'I, Shah Vrijvallavdas Umedram have executed a will on the date...of Samvat year 1976. I have stated there in to prepare a Yadi of my moveable property and to prepare a separate Yadi of its disposition. I prepare the Yadi as stated below.'
3. Further, it is clear that on the face of the alleged will there have been substantial alterations made as regards what is to happen in the event of the death of the appellant Dahyabhai. The original document provided that in the event of the appellant's death without leaving issue, then Sornabhai, his brother, was to succeed and in the event of the latter's death without leaving issue then Kanaiyalal the respondent was to be the heir. But these dispositions in favour of Somabhai and Kanaiyalal have been struck out. There are also certain other alterations that have been made, but, as pointed out by counsel for the appellant, the document after all these alterations have been made appears to read as one document.
4. Now there is one most important matter to mention, and that is that the testator never made any oral announcement of his testamentary wishes. There is no evidence worth the name that he ever orally stated that he desired to leave his property after his death in the manner indicated in this alleged will. The most we get is obtained from the oral evidence of the appellant and Atmarain, Exhibit 33. It must be remembered that the appellant claims in the events which have happened to take the whole of the property in this will; that he was living with the deceased for some twenty-five years before the latter's death; and that he apparently took possession of all the property of the deceased on the latter's death. Therefore, he is a person who is very highly interested in establishing this will. In the event of an intestacy he would at the most take a moiety along with the respondent Kanaiyalal.
5. Now the appellant in his evidence-in-chief after stating that the deceased died suddenly of heart failure and that his mental and physical condition was good up to his death, did not say any- thing in his examination-in-chief about the deceased having told anybody of this will. But in cross-examination he says:-
I do not remember if any one was present when it was written, but he told me he had made a w ill. I cannot remember how long ago that was.
6. Then he deposes that he cannot say why the will was not attested and later on he says :-
I asked my uncle to show me the will but he did not.
7. Then in reply to the Court he stated:-
I cannot remember when my uncle told me he had made a will except that it was six or seven years ago.
8. Now at the most that does not amount to a statement that the deceased made a will in favour of the appellant or otherwise on the lines of the document now propounded. And speaking for myself if that statement had really been made, it is surprising that it was elicited for the first time in cross-examination.
9. Then Atmaram, Exhibit 33, in his examination-in-chief says:-
The deceased once told me when he was ill that he had made arrangements about his property.
10. Then in cross-examination he says:-
The deceased spoke to me about having disposed of his property four or five years before his death, I did not ask any details. I cannot say what year it was.
11. The only other circumstance which, if at all, can be relied on is a draft will of the appellant's elder brother Somabhai which the deceased Vrijvallavdas is said to have drafted. That was drafted about June 13, 1925, shortly before the death of Somabhai. That document, which is said to be in the handwriting of Vrijvallavdas, states:-
But the third brother Dayabhai out of us lives at our uncle's house. Hence he of his own accord refuses to take share out of the joint moveable and immoveable property.
12. It is accordingly urged that in this document prepared by the deceased Vrijvallavdas himself he recognises that the appellant bad renounced the appellant's share in his own joint family property, and was living with and dependent on the bounty of his uncle Vrijvallavdas. But let that be so. It seems to me a wide step to say from that that this means that Vrijvallavdas had already executed a will in favour of the appellant Dahyabhai. One may fairly assume from the evidence that Dahyabhai having lived all these years with his uncle, and his uncle having no issue, and the uncle's wife being dead, the appellant would be the natural object of the bounty of the deceased. One may go further and assume that it would be in the contemplation of the deceased f he came to make a will that the appellant should be the primary object of his bounty. But the question to my mind is : Did the deceased carry out that intention, or was this document, which is now propounded as a will, merely an inchoate document, a draft to be referred to when the deceased thought that he was really nearing the end of his days, and could therefore easily refer to the document from which a final statement of his testamentary wishes in accordance with the then facts could be made.
13. Now the deceased was a gumasta in the mill industry, and it is clear that he was a business man who had collected a substantial fortune. Therefore, one may take it that he was quite familiar with business ways, and he would, at any rate, know the difference between a signed document and an unsigned one. But the fact that he left these two separate pieces of paper unsigned, unattested and undated points to my mind rather to the conclusion that they were intended only as drafts and not as a final will.
14. But I must make this clear qualification. We fully appreciate that as the deceased was not in Bombay, there was no necessity for him to have the will executed in accordance with the requirements of the Indian Succession Act. He could make an oral will. So too in the case of a Hindu of his persuasion it would not be essential that he should actually sign at the bottom of the document. One may concede that if the document was intended to be a testamentary disposition there and then of his property, it might be sufficient if the signature merely appeared at the top of the document having regard to the fact that this was an holograph document all written in his own hand. I have carefully considered that possibility, and we have referred in connection with it to two cases cited to us, viz., Vinayah Narayan Jog v. Govindrav Chintaman Jog (1869) 6 B. H. C. 224 and Janki v. Kallu Mal ILR (1908) All. 236. But as regards the facts of those particular cases, it will be seen that there was other evidence to support the view that the deceased in those particular cases really intended to make a testamentary disposition of his property.
15. There is also this to be borne in mind that if some of the arguments of the appellant were to succeed, Hindus might be put in a position of considerable danger if they ever allowed any draft of a will in their own handwriting to be left amongst their papers. A draft or at any rate a full draft would not be of much use without having the name of the testator at the top. But should that name appear there, as is normal in such a draft, one could not ask the Court necessarily to assume that it must be taken to be a signature as well, and that therefore the document was a final and concluded document. That danger would be increased in a case such as the present where we find substantial alterations made apparently at some subsequent date from that of the original will. In effect those alterations would amount to a new will, or at any rate to a codicil to an existing will. And yet according to the appellant, the original writing at the top of document is to stand as a signature not only of the original will but also of the subsequent new will or codicil,
16. There was another circumstance which the learned Judge has alluded to, and that is the statements made by the appellant on some four or five occasions as regards the document itself. He stated on one occasion that the document had been deposited with the bank. That was not true. He stated on more than one other occasion that it had been entrusted to him by the deceased in his lifetime. That was not true, and the only explanation given by his counsel is that some of the statements were made after he had filed his present petition, in paragraph 9 of which he had stated that the will was found after the deceased's death in the cash box. It was accordingly argued that there was no advantage in his making statements which would indicate that the will had been in the custody of the appellant even in the lifetime of the deceased. The conclusion the learned Judge drew from the oral evidence of the appellant-and after all the learned Judge had the advantge of seeing the witness which we have not-was that he did not appear to be a person on whose word reliance should be placed. And if that is so, one cannot shut one's eye to the fact that the document which the appellant has put forward is one under which he largely benefits; and though I appreciate that there is no evidence to show that he had it prepared or in any way shared in its preparation, yet one has not entirely to ignore the possibility that the deceased might in fact have executed some other and final document; which is not now forthcoming.
17. After carefully considering all that is represented before us by counsel for the appellant, it seems to me that the judgment of the learned Judge, who has dealt very fully and clearly with the case, was entirely correct. Accordingly, it is unnecessary for us to call upon counsel for the respondent. I would hold that this document Exhibit 3 propounded by the appellant was only a draft and was not the will of the deceased, and that accordingly this appeal ought to be dismissed.
18. As regards costs, the appellant must pay the costs of the appeal, but as regards the costs in the Court below we think that the fair order is that the costs of both parties in the Court below should be paid out of the estate. This after all is a document in the handwriting of the deceased and apparently left in his cash box, and we think that the appellant was fairly entitled to bring it before the Court to have a judicial determination as to whether it was or was not the will of the deceased.
19. I agree and have nothing to add.