S K RAMASWAMI GOUNDAN Vs. SNPSUBBARAYA GOUNDAN

JUDGEMENT

(1.) This is an appeal from the judgment in appeal of the District Judge of Coimbatore, dated the 31 March, 1945, confirming the judgment and decree, dated the 11 April, 1944, of the Subordinate Judge of Coimbatore in O.S. No. 130 of 1943. The suit out of which the appeal arises, O.S. No. 130 of 1943, was brought for redemption of the suit properties on the footing of a mortgage, Ex. P- 3, dated 4 June, 1850, executed by one Samanna Goundan in favour of one Krishna Ayyar and one Venkataramana Ayyar and three other persons. Kandaswami Goundan, an undivided son of Samanna Goundan, sold the equity of redemption in the suit properties to the plaintiff on the 29 September, 1938, for Rs. 100. The suit has some remarkable features. Nothing is heard of the suit mortgage between the alleged date of the execution of Ex. P-3, 4 June, 1850, and the sale to the plaintiff on 29 September, 1938. The suit properties, however, had been frequently dealt with by way of mortgage and sale by Krishna Ayyar and Venkataramana Ayyar and their successors for considerable amounts until in 1918 they were sold to the father of the first defendant for Rs. 1,10,000. By the date of suit, it is reasonable to assume that they were worth several lakhs. The plaintiff relied on two other documents, Exs. P-1 and P-2. Ex. P-1 purports to be a patta issued on 6 July, 1847, by the karnam of the village, one Sinnathambi Pillai, in favour of the two persons, Krishna Ayyar and Venkataramana Ayyar. The properties covered by the patta are the suit properties and are expressed to be 3,400 kulis in extent (something over 40 acres), and the assessment payable in respect of the land is stated to be Rs. 315. Ex. P-2 is a sale deed executed on the 14 November, 1849, in respect of the properties covered by Ex. P-1 by Krishna Ayyar and Venkataramana Ayyar in Favour of Muthu Goundan for a consideration of Rs. 75. Reference has already been made to Ex. P- 3. It purports to be a mortgage of the suit property covered by Exs. P-1 and P-2 by Samanna Goundan, the son of Muthu Goundan, in favour of Krishna Ayyar and Venkataramana Ayyar and three other persons, Athappa, Velappa and Karuma Goundan. It is in evidence, it may be stated here, that the successors of these three Goundans disclaimed all knowledge of the mortgage, Ex. P-3. The first defendant was the only contesting defendant. He claimed the property absolutely under the sale deed of 1918, and maintained that the three documents, Ex. P-1, Ex. P-2 and Ex. P-3 were not genuine. Both the lower Courts agreed with the contentions of the first defendant and have held that Exs. P-1, P-2 and P-3 are not genuine. This is a second appeal against concurrent findings of fact by the lower Courts and the findings, therefore, unless satisfactory reason is shown, cannot now be challenged by the plaintiff-appellant.

(2.) It has, however, been argued by Mr. Subba Rao for the appellant that the findings of the lower appellate Court are vitiated by mistakes of fact, by an error in law by reason of a failure properly to apply the provisions of Section 90 of the Evidence Act and by the improper inclusion and exclusion of evidence. In order to appreciate the contentions for the appellant, it will be convenient to summarise the reasons as stated in his judgment which weighed with the learned District Judge in holding that the three crucial documents were not genuine. He pointed to the improbable character of the appellant's case as a whole, especially the inade- quate consideration for the sale deed, Ex. P-2, and the mortgage, Ex. P-3, in respect of property which was assessed to pay annually Rs. 315 as land revenue, and to the fact that nothing was ever heard of the three documents between the alleged dates of their execution and the sale to the plaintiff of the equity of redemption some 90 years later. On matters of detail tending to show that the documents were not genuine, he was of opinion (1) that the document, Ex. D-2, showed that Sinnathambi Pillai who purports to have issued Ex. P-1 and to have written Exs. P-2 and P-3 and was said to be the karnam of the village was not the karnam at all and was indeed not proved to have existed; (2) that the pleadings and judgment in O.S. No. 74 of 1844 show that Muthu Goundan, who according to Exs. P-2 and P-3, should have died sometime between 14 November, 1849, and 4 June, 1850, in fact died in 1867, or 1868, while Samanna who purports to have executed Ex. P-3 in 1850, was 42 in 1884, so that he was only 8 years old when the document was executed; (3) that the document Ex. 4 showed that Venkataramana Ayyar was only 22 in the year 1862, so that when he with others was said to have taken a,mortgage in his favour he was only 10 years of age; (4) that in the course of the inam inquiry of 1862-63 no claim to the property was put forward by Muthu Goundan or his successors; while on the other hand, there was an assertion, which was accepted, of exclusive title by Venkataramana Ayyar and Krishna Ayyar and the inam was registered in their names; (5) that although Ex. P-2 recites that the property should be transferred in Muthu Goundan's name, there was never at any time any transfer of patta in favour of Muthu Goundan or his successors; and (6) that the initials, I.C.W. stamped on each of the three cadjan documents, Exs. P-1, P-2 and P-3 are not, as was suggested for the appellant, the initials of the Collector of the period who was a Mr. J C. Wroughton.

(3.) We will take first the objection that the presumption required by Section 90 of the Evidence Act as to documents 30 years old has not been drawn. The learned District Judge has dealt with this question in paragraph 13 of his judgment. His. view that in the circumstances of the case the Court was not bound to raise a pre- sumption under Section 90 of the Indian Evidence Act and that the proper course was to mark them as exhibits without requiring formal proof and then consider, having regard to the evidence and surrounding circumstances whether they were or were not genuine is in accordance with the decision of this Court in Vaidyanathaswami Ayyar V/s. Natesa Malavarayan and Ors. . Section 90 of the Evidence Act states that the Court may draw the presumption referred to in the section and not that it must draw the presumption, and indeed in many cases, the present being one, it would be most dangerous to draw the presumption that a document was genuine merely because it was thirty years old according to the recitals in the document and came from proper custody.