RAMASAMY PADAYACHY Vs. THIRUVENGADA PADAYACHY

JUDGEMENT

(1.) Defendant 1 is the appellant. One Subbaraya Padayachi died in 1872. His son Kuppusami died in 1879. After his death, his mother, Sengamalathammal, inherited the properties, and she executed two documents: Ex. 1, dated 1890 and Ex. 2, dated 1917. In this second appeal we are concerned only with Ex. 1. This was executed in favour of defendant 1's father. Two items of consideration are mentioned in that document which are evidenced by Exs. 1-b and 1-a. The document also recites that a sum of Rs. 212 was borrowed by her from the mortgagee for the expenses of litigation in connexion with O. Section 48 of 1882 filed by her. The present suit out of which this second appeal arises has been filed by the plaintiffs, the reversioners, to sot aside this alienation as not binding on them. The question is whether Ex. 1 is binding on the reversion. The District Munsif found against the plaintiffs on this question, but this finding was set aside by the Subordinate Judge.

(2.) Mr. Muthukrishna Ayyar has argued before me that the finding of the Subordinate Judge should not be accepted inasmuch as he does not notice some important circumstances in connexion with the evidence and has not attached sufficient importance to certain other aspects of the evidence. Ordinarily, this Court does not interfere on findings of fact in second appeal, but if the learned Judge has omitted to consider evidence which is important and in considering the evidence which he has examined he has applied erroneous presumptions of law, then, I think, the finding may be called into question and the lower Court may be asked to submit a fresh finding. The document in this case is 37 years old. Both the Courts have treated it as an ancient document though the appellate Court does not attach much importance to the ancient character of it having regard to the other circumstances in the case. It has been attested by plaintiff 3. In considering the question whether the document will be binding on the reversion, an attestation by one of the reversioners would certainly be a relevant piece of evidence for the Courts to consider. The learned District Munsif refers to this attestation and draws his own conclusion in support of the binding nature of the document, but there is no reference to this piece of evidence in the judgment of the Subordinate Judge. This is a grave omission. Of course, it is open to the learned Judge to say for sufficient reasons, that he is not prepared to attach any value to the evidence afforded by the attestation, but it is necessary that this Court should be satisfied that the Judge paid attention to this item of evidence. As I have said he does not refer to the attestation of Ex.1 by plaintiff 3 anywhere in his judgment. Another circumstance of some importance is the fact that in the arrangement Ex. 4, entered into between these plaintiffs, provision has been made for the payment of the debts of the deceased Subbaraya Padayachi. It is argued on behalf of the appellant that this is a very cogent piece of evidence from which inference may be drawn to the effect that the debts referred to in Ex. 1 must be binding debts; as otherwise the reversioners will not make any arrangement for the payment of such debts.

(3.) The District Munsif put Ex. 4 in the forefront of the discussion. The Sub- ordinate Judge no doubt has referred to Ex. 4, but the reference to it is after he has made up his mind and concluded that the document in question is not binding on the reversion. He stated his conclusion in para. 29 and it is in para. 30 that he refers to Ex. 4. I think in considering the question whether the document is binding or not, Ex. 4 should have been referred to by him before he arrived at his conclusion on that point. The omission to so deal with Ex. 4 is also, I think, another defect in the finding arrived at by him.