RAMASWAMI NAYAGAR Vs. RAJU PADAYACHI

JUDGEMENT

(1.) This is an appeal involving title to a certain house which the plaintiff bought in Court auction. The question is whether the 8 defendant, in pursuance of a decree against whom the sale was held, was competent to mortgage the entire house as he did or as he purported to do in 1911, or whether defendants Nos. 2 to 6, who are his nephews together with his children, have also rights in the said house. It is common ground that the 8 defendant acquired the house under the Will of one Poongavanam as his own separate property. The whole question in the, second appear is whether or not, after thus acquiring the suit house, the 8th defendant threw it into the common stock of the joint family consisting, of himself and defendants Nos. 2 to 6 subsequent to hit acquisition of it and before the family became divided in interest which event took place in 1904 Now, the District Munsif found that the 8 defendant had not thrown it into the common stock, that is to say, that he had not given up his own exclusive rights and treated the property as joint family property. On the other hand, the Sub-Judge held, differing from the District Munsif, that the evidence did establish that the house was thrown into the common stock.

(2.) The first point that is pressed on me is as to Ex. VI. Now Ex. VI is a book containing a list which is headed "List of particulars of house and manai, etc.," and for the purposes of this case page 13 and part of page 14 have been printed in the documents. The house in question is said to be item No. 3 and these pages are signed at page 14 at the end of the 8 item by the 8 defendant, A. Appavu Padayachi. The District Munsif decided that Ex., VI was not genuine and Mr. T.R. Ramachandra Iyer without going so far as to say that the question of the genuineness of Ex. VI was concluded by the judgment of this Court in O.S. No. 303 of 1910 says that the Sub-Judge has not given sufficient weight to Ex. VI as established in that prior suit. In fact he must go the length of saying that owing to the Sub-Judge's treatment of Ex. VI and the evidence generally, the finding that the Sub-Judge has come to is, in fact, a perverse finding. For, if he did not, with the exception of a point of law to be mentioned in a moment, the case simply resolves itself into a question of fact and appreciation of evidence, one Court taking one view of the evidence and the lower Appellate Court another. The prior litigation referred to was between a plaintiff--a stranger to this suit--and defendants Nos. 2, 8 and others. It concerned not the suit house but a certain tope, and the High Court sent down to the District Judge for a finding on the question as to whether the suit land belonged to the 1 defendant (who is the 2nd defendant here) or whether it was the joint family property of all the defendants. Exhibit VI here was Ex. II in that case, and the tope in question was entered on pages 15 and 16 with other family property, the 1 defendant purporting to have signed the document on page 16. As found by the District Judge, the 1st defendant denied his signature on page 16, and there was a difference between his alleged signature on page 16 and his admitted signature at the end of page 11. The finding was that there was no proof that the 1 defendant signed Ex. II at page 16 and that no inference can be drawn that the 1 defendant threw the lands into the common stock. The finding was accepted by the High Court.

(3.) Now, it seems to me that this decision can have no bearing whatever on the present case. The property in suit is different; the pages in the book, in question are different; and it is to be, noted that on page 11, according to the District. Judge, the 1 defendant who is the 8 defendant here admitted his signature. It seems to me that the fact that in another place in the same book there may have been a forged signature of the 8 defendant cannot preclude the Sub-Judge in this case from finding that the signature is genuine at pages 13 and 14 of Ex. VI.