N. RAMASWAMY PADAYACHI Vs. C. RAMASWAMI PADAYACHI

JUDGEMENT

(1.) IN Mayuram, Thanjavur District, there is a Droupathy Amman temple with other subsidiary deities stated to have been founded by the ancestors of the parties to this litigation more than a century and a half ago. In and around this temple, there has been large extent of open ground, which, in the course of time and by reason of its situation abutting the main road, became valuable and is now stated to be fetching a good income. The temple and its affairs were in the management of eight families. One family is stated to have become extinct long long ago. There were disputes and civil proceedings in courts between the families regarding the management of the temple and its properties. By 1894, there were only seven families, which were entitled to the management. Six of the families filed O.S. No. 379 of 1894 on the file of the Court of the District Munsif, Mayuram, against one Kuppuswami Padayachi representing the seventh family to establish their right to turn management. The dispute was referred to arbitration and in terms of the award made by the arbitrator, a decree was passed on 28 -2 -1895 in that suit. The award specified that each of the families should enjoy the turns in the order in which they were ranged in that suit. One of the turn holders sold his rights under the decree in favour of one of his grandsons through a daughter. The alienee got into possession and disputed the rights of the other turn holders which again led to the filing of O.S. No. 95 of 1913 on the file of the Subordinate Judge, Mayuram. The rights of the seven families as turn holders was again confirmed in the judgment which is marked as Ex. A -1 in this case. There is no dispute that each turn holder was to be in possession of the temple and the management of its properties for a period of two years. These are the admitted and common facts. The suit was filed by the appellant herein for a declaration that he is entitled to the turn of the first family in addition to the turn as the turn -holder of the fourth family and to substitute himself as a party in O.S. No. 95 of 1913 on the file of the Sub -Court, Mayuram, as a representative of the first family turn -holder thereto and get the rights secured to the first family under that decree. The second, third, fifth, sixth and seventh family turn -holders, the three other brothers of the plaintiff forming the fourth family and the two daughters' sons of Govinda Padayachi, the first family were the defendants in the suit. The plaintiff's case was that by a registered gift deed dated 19 -8 -1920 Govinda Padayachi, the first family turn -holder conveyed his right to hold and enjoy his turn -management of the temple and its properties and the right to enjoy the income for two years to the plaintiff. When the turn -management came in 1939, he filed E. P. No. 61 of 1939 in O.S. No. 95 of 1913 to recognise his right to the office by reason of the assignment thereof under the deed of gift aforesaid. The daughters' sons of Govinda Padayachi, who are defendants 9 and 10 in this suit, also applied in E. P. No. 31 of 1940 to be recognised as persons entitled to the Poojari office and its management as the legal heirs of Govinda Padayachi. These petitions were dismissed by this court confirming the orders of the Courts below on the ground that the question of claim to Office as Poojari and the temple properties has to be determined only on a regular suit and not in an execution petition. This suit was filed by the plaintiff after the said order of this Court.

(2.) THE main dispute in this case related to the truth and validity of the gift deed dated 19 -3 -1920. In the written statement filed by the second defendant it was contended that the gift deed was not executed in accordance with law, that it was brought about by undue influence, and that it was not a gift deed in fact, but it was for consideration. He also contended that the gift deed was invalid in law and the plaintiff could not claim any right on the strength of the same. The question of truth and validity of the gift deed is the only one that now survives for consideration in this appeal. The trial court held that the gift deed is neither true nor valid and the plaintiff did not derive any right to manage the turn of the first family by virtue of that document.

(3.) THE learned counsel for the appellant then relied on Section 90 of the Evidence Act and contended that the document was executed on 19 -8 -1920 and by the time this suit was filed in 1966, more than 30 years have elapsed attracting the presumption that the document was duly executed and attested by the person by whom it purports to have been executed and attested. As has been held by this court in Ramaswami Goundan v. Subbaraya Goundan (AIR 1948 Mad 388) and a series of other decisions, the rule in Section 90 is not an absolute one and even in cases where the document is produced from proper custody, the court has a discretion to draw the presumption referred to in the section or require the proof of execution. The section itself states that the court may draw the presumption referred to in that section and not that "it must draw the presumption". As pointed out by this Court in (AIR 1948 Mad 388) it would be most dangerous to draw the presumption that a document was genuine merely because it was 30 years old and came from proper custody. The court must have regard to the evidence and surrounding circumstances and apply its mind as to whether the presumption will have to be drawn or not. We have in this case the following facts which make us feel that we cannot draw the presumption under that section. As already stated subsequent to 19 -8 -1920 on which date the document is said to have been executed Govinda Padayachi had a turn during his lifetime and that was not given to the plaintiff. It is also in evidence that there was a dispute relating to the turns sometime in 1931. In that proceedings the ninth and 10th defendants, herein, were impleaded as the legal representatives of Govinda Padayachi and though the plaintiff was also a party to those proceedings, he did not claim to be impleaded as the person entitled to the turn -right of Govinda Padayachi as per the gift deed instead of the ninth and 10th defendants. When for the first time, the plaintiff claimed his rights under the gift in E. P. No. 61 of 1939 the ninth and 10th defendants and the other turn -holders disputed the genuineness and validity of the gift deed and those proceedings were pending as late as 1952. This suit itself was filed on the dismissal of E. P. No. 61 of 1939 directing him to file a regular suit to establish his right. Therefore, right from the beginning, we see that this document was in dispute and in those circumstances, we are unable to draw the presumption under Section 90. We are, therefore, of the view that the gift deed had not been proved to have been duly executed.