JUDGMENT
Nanabhai Haridas, J.
1. The plaintiff Bhagvan Dullabh brought this suit to recover certain immoveable property belonging to his deceased brother, Ranchhod.
2. The defendant, Kala Shankar, who is his sister’s son, alleged in his written statement that the plaintiff and the deceased Ranchhod were divided in estate; that from his childhood he had lived with his deceased uncle as his son; and that the deceased had made him owner of his estate. He accordingly contended that the plaintiff was not entitled to recover from him the property sued for.
3. It is not alleged that there is any nearer relative of the deceased than the plaintiff. The question, therefore, simply is, which of the two is entitled to the property in preference to the other. It is found that the plaintiff and the deceased were divided in estate; and it is also found that the defendant “from his childhood always lived with the deceased, and seems always to have been treated and recognized and acknowledged by him and even by others as his son.” Such recognition and acknowledgment, however, would not give the defendant the legal status of a son in the absence of any formal adoption; and it is found that none such took place. The plaintiff, therefore, although divided from the deceased, would, according to Hindu law, be entitled to the property in dispute, if the defendant had merely to rely upon his relationship to the deceased and upon the fact of his having from his childhood lived with the deceased and been recognized by him as his son. But the defendant rests his claim also upon a title created in his favour by the deceased–a verbal bequest. The fact of such bequest, “in pursuance of intentions previously expressed,” is clearly found by the Assistant Judge. We have, therefore, to determine whether the title to the property has thereby passed to the defendant or not. It is, indeed, urged for the appellant that it has not, on the ground that the deceased had no power to make any such disposition of his property. But we think the power of a Hindu to make a testamentary disposition of whatever is his absolute property is now clearly established: see Narottam Jagjivan v. Narsandas Harikisandas (3 Bom., H.C. Rep., 6, A.C.J.), Mulraz Lachmia v. Chalekany Vancata Rama Jagganadha Row (2 Moore I.A., 54); Nagalutchmee Ummal v. Gopoo Nadaraja Chetty (6 Moore I.A., 309) and Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee (12 Moore I.A., 1). In the last case their Lordships of the Privy Council observe (page 37): “it is too late to contend that, because the ancient Hindu treatises make no mention of wills, a Hindu cannot make a testamentary disposition of his property. Decided cases, too numerous to be now questioned, have determined that the testamentary power exists, and may be exercised, at least, within the limits which the law prescribes to alienation by gift inter vivos.” That the plaintiff and the deceased Ranchhod were separate in estate is, as above observed, clearly found by the lower Court. The latter, therefore, might have made a valid gift inter vivos of the whole of the property in dispute. Hence, it follows that it was equally competent to him to bequeath that property by will, as he has done in this case. But it is further urged that the will here was merely a nuncupative will. We cannot see how that circumstance could affect the validity of the will, if it were in fact made. Not a single authority is cited to us to show that a nuncupative will by a Hindu is invalid; and there are authorities the other way: see Srinivasammal v. Vijayammal (2 Mad., H.C. Rep., 37); Tarachand Bose v. Nobeen Chunder Mitter (3 Cal., W.R., 138, Civ. Rul.); Sudanund Hohapattur v. Soorjo Monee Debee (8 Cal., W.R., 455, Civ. Rul.); Vinayak v. Govindrao (6 Bom., H.C. Rep., 224, A.C.J.).
4. The will in this case was made in 1871, after “The Hindu Wills Act, 1870,” came into force; but as it was made beyond the limits of the ordinary original jurisdiction of this Court, and does not relate to any immoveable property situated within them, the provisions of that Act in no way apply to it.
5. We must, therefore, confirm the decree of the lower Court, rejecting the claim with costs.
6. It was stated to us that the plaintiff himself was present at the time his brother Ranchhod made the verbal bequest in favour of the defendant, and actually consented to it; and it was accordingly contended that, he having thus allowed his brother to die in the belief that he had made a good bequest in favour of the defendant, it was not competent to the plaintiff now to question that bequest. But in the view we have taken of the case it becomes unnecessary for us to express any opinion on that point.
