KOTIKELAPUDI VENKATRAMAYYA Vs. DIGAVALLI SESHAMMA

JUDGEMENT

(1.) The appellant instituted the suit on the footing that he had become entitled to the suit properties by the rule of survivorship, on the death of his uncle, one Subbarayudu, in July 1919. Subbarayudu left a will, Ex. XVIII dated 12 July 1913 and defendants 1 to 6 claim as legatees under that will. Questions were raised in the lower Court as to the genuineness of this will and after elaborate trial, the learned Subordinate Judge found that the will was genuine; but as the plaintiff's claim by survivorship, if well founded, would by itself suffice to defeat the operation of the will even if it were true, his learned Counsel here did not attack the lower Court's finding on the question of the genuineness of the will and confined his arguments to the plaintiff's claim under the rule of survivorship.

(2.) The question argued before us is substantially that raised by the 4 issue in the case. The latter part of that issue related to a contention that even if the suit properties were in any sense and to any extent the self-acquired properties of Subbarayudu, he had thrown them into the common stock and thereby made them joint properties. This aspect of the matter has not been pressed before us. On behalf of the appellant Mr. Kothandaramayya's main argument was that at a. time when the plaintiff was only an Infant, Subbarayudu must on the death of the plaintiff's father have come into possession not merely of the 5 acres of ancestral lands admittedly belonging to the family in their native village but also of a substantial sum of cash which must have formed a nucleus for Subbarayudu's subsequent earnings. In the lower Court, an argument seems to have been advanced to the effect that even the income from the family lands in the village could have been substantial, but the learned Subordinate Judge has found that the lands did not yield anything more than a few rupees in those days and even these few rupees were not shown to have come into the hands of Subbarayudu at any time, as he was serving as a public servant in a place far away from his native village. This part of the lower Court's finding has not been challenged before us either.

(3.) The story sought to be developed on the plaintiff's side in the course of the evidence was that about the time of the plaintiff's father's death, i. e., in 1876, some amount, put by one witness at about Rs. 1,600 and by another witness at about Rs. 5,000 stood in deposit in the plaintiff's father's name with a merchant of Cocanada known as Chinna Gopalam and that some years after the plaintiff's father's death this amount was withdrawn by Subbarayudu. It is contended that the evidence of P. Ws. 1 to 3 read in the light of Ex. D clearly establishes this part of the story. It may be conceded that if it is proved that this sum of Rs. 5,000 or any similar amount stood in deposit in Somaraju's name at about 1876 and came into Subbarayudu's hands after Somaraju's death, it will be a very important circumstance sufficient to throw upon Subbarayudu and those claiming under him the onus of proving that Subbarayudu's subsequent acquisitions are not traceable to that fund and have not been mixed with that fund. Attention has therefore been directed to a critical examination of this part of the plaintiff's story.