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Gordhandas Nathalal Patel Vs. Bai Suraj - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 134 of 1920
Judge
Reported inAIR1921Bom193; (1921)23BOMLR1068
AppellantGordhandas Nathalal Patel
RespondentBai Suraj
DispositionAppeal allowed
Excerpt:
.....been complied with. - - it is well settled now that it need not be proved that a testator, in order that his will may be found good by a court, was in a perfect state of health, or that his mind was so clear as to enable him to give complicated instructions. testator when he was sufficiently conscious to understand what he was doing, and it would require very strong evidence to satisfy us that the court should not grant letters as asked for......attention need be paid to that expression of opinion on the part of the doctor, and certainly the doctor's evidence has been quite wrongly translated by the learned judge when he makes out from that evidence that the dominant idea of the testator was to devote his estate to charity. it is quite a different matter when the doctor really said the testator desired that person should possess his estate who gave caste dinners, and gave something to charity. however in this case we are faced with the will in which there is sufficient evidence that it was executed by the; testator when he was sufficiently conscious to understand what he was doing, and it would require very strong evidence to satisfy us that the court should not grant letters as asked for. as i commenced by saying, the evidence.....
Judgment:

Norman Macleod, Kt., C.J.

1. The petitioner prayed for the grant of letters of administration with the will annexed of the assets and property left by his deceased uncle Somnath Bapuji who died in Bombay at about 3 A.M. on 14th April 1918 in the house of the petitioner. The deceased ' Somnath, according to the petitioner, executed a will at about 10 P.M. on the 13th April 1918, that is about five or six hours before his death. The opponents to the grant were the widow of the deceased and her two daughters. Two other daughters of the deceased by his first wife have acquiesced is the petitioner's claim to letters.

2. The Judge in the Court below has refused to grant letters with the will annexed to the petitioner. There is no doubt that Somnath was very ill. But at the same time the evidence that a will was drawn up and signed by him when he was in a state of consciousness is all one way. Then the learned Judge has unfortunately taken a wrong view of the provisions of the will which, in my opinion, are exactly the provisions which a man in the position of Somnath would have made, that is to say, he gives his widow a certain sum in cash, and a life interest in the immoveable property, with the remainder to his two nephews; while he gives legacies to the daughters, and provides a sum of money for the marriage of his youngest daughter.

3. I cannot agree with the Judge when he says that such a will prima facie in the case of a divided co-parcener, who, according to the evidence, was a loving husband and father, would appear unnatural.

4. Then he has cast certain aspersions on the two pleader witnesses who were responsible for the drawing up of the will. I see nothing in their evidence to cast any suspicion on their bona fides. The Judge says that both the pleaders undertook a task to which they had never set themselves before and the result has been a most incomplete and an imperfect document . I have read the will. As far as I can see, considering the circumstances of the case, it reflects great credit on Shambu-prasad who took the main part in writing it.

5. Then the Judge relies upon some statement of the Doctor that the dominant idea in the mind of the testator was that his property should go to charity. The question put to the Doctor was-Whether a man having a widow and daughters being separate from his brother and nephews would give his property to the widow and daughters or to the brothers and nephews? That was a most improper question to put to the Doctor, and I should not be inclined to attach much importance to the answer given to an improper question. But the answer was-'I felt something incongruous and asked him what he intended to do with his property. The deceased was possessed of one notion, that whoever spent money after caste dinners and charity should possess his property. The testator gave instructions about the charity. I do not remember exactly the amount given in charity, but it must be about Rs. 1,000 or two or three caste dinners. It was not discussed in what charity the sum should be given. Under the last clause of Exhibit A the whole property goes to the nephews after the death of the widow, and no provision is made in Exhibit A for giving anything in charity.'

6. On that answer the Judge comes to the conclusion that the will as drawn could not have given effect to the testator's intentions.

7. Then reliance was placed upon certain discrepancies in the evidence of Shambhuprasad and Bhailal, but they may have taken different views at one time or another of the condition of the testator, and I see no reason why their evidence should not be believed together with the evidence of the Doctor on the main point that the testator, although he was ill, was able to understand what he was doing. It is well settled now that it need not be proved that a testator, in order that his will may be found good by a Court, was in a perfect state of health, or that his mind was so clear as to enable him to give complicated instructions. It is sufficient if it is proved that he was able to give the outlines of the manner in which his estate was to be disposed of, and was able, when the result of the lawyer's efforts was read out to him, to understand that his instructions in the main had been complied with. I see nothing in the evidence which would lead me to suppose that the testator was not able to give instructions which were embodied in the will, and when it was read over to him to understand that those instructions had been given effect to. The learned Judge seems to have been obsessed with the idea that the testator's main intention was to dispose of his estate in charity, that therefore, the disposal of the estate according to the manner appearing in the will was contrary to the testator's intentions. But I see no reason to come to any conclusion of that sort. No doubt it would be natural for a Hindu to desire to bestow something in charity. -But because he mentioned something about ohavity to the Doctor attending him it would not follow that, when it came to his giving instructions to Shambhuprasad, he might not have changed his mind and desire J to dispose of his property in favour of his relations. Whit the Doctor did say was that the one pre- dominant idea of the deceased was that whoever spent his money after caste dinners and charity should possess his property. But in the face of the evidence I do not think really much attention need be paid to that expression of opinion on the part of the Doctor, and certainly the Doctor's evidence has been quite wrongly translated by the learned Judge when he makes out from that evidence that the dominant idea of the testator was to devote his estate to charity. It is quite a different matter when the Doctor really said the testator desired that person should possess his estate who gave caste dinners, and gave something to charity. However in this case we are faced with the will in which there is sufficient evidence that it was executed by the; testator when he was sufficiently conscious to understand what he was doing, and it would require very strong evidence to satisfy us that the Court should not grant letters as asked for. As I commenced by saying, the evidence is all one way. Therefore we decide in favour of the will and allow the appeal. Letters-of administration with the will annexed will issue to the petitioner. The petitioner's costs of the suit will come out of the estate, and the costs of the appeal must be paid by the contesting respondents,

Shah, J.

8. I agree.


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