VEERASWAMI Vs. NARAYYA

JUDGEMENT

(1.) THESE consolidated appeals are from two judgments and two decrees dated February 8, 1943, of the High Court of Judicature at Madras, which reversed a judgment and two decrees dated July 29, 1941, of the Court of the Subordinate Judge of Coconada.

(2.) THE appeals arise out of two connected suits. Of these oneno. 38 of 1940was brought by the appellant, Sara Veeraswami or Veerraju, (hereinafter called the appellant-plaintiff) against the first and second respondents for specific performance of an alleged oral agreement to reconvey certain properties which had been sold to them. THE other suitno. 32 of 1940was brought by these respondents against the appellants and others to obtain possession of the said properties. THE first named respondent having died in the course of the proceedings, his legal representative, the third respondent, was added as a party to each suit.

(3.) THE first of these issues is altogether one of fact. Both sides led oral evidence before the Subordinate Judge which, if believed, was amply sufficient to support their respective versions of what occurred. THE appellant's case turned mainly on the evidence of two witnesses, P. Ws. 1 and 3 .THE Subordinate Judge accepted their testimony in preference to that of the witnesses called for the respondents. He states in his judgment that he was much impressed by the evidence of P. Ws. No.1 and 3 and adds"in my opinion there is a ring of truth in what P. Ws. 1 and 3 say while there is a ring of untruth in what D. Ws. 1, 3 and 5 say. " He then sets out a series of circumstances which need not be detailed here but which, in his opinion, went to support the appellant plaintiff's case. THE High Court did not attach the same weight to these circumstances. It found none of them conclusive and some of no value at all. Much may indeed be said for this view; but it is clear that the conclusion of fact reached by the Subordinate Judge was based primarily on the oral testimony and his estimate of the witnesses who all, it must be remembered, gave their evidence in his presence. That, as has been repeatedly pointed out, is an important consideration. THE gist of the numerous decisions on the subject is clearly stated by Viscount Simon in Watt or Thomas v. Thomas [1947] A. C. 484 where he says (p. 486): But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which the evidence is given.