1. This Letters Patent Appeal is filed against the judgment of Venkatesam in A. S. No. 37 of 1962. The learned Judge has allowed the appeal preferred by the defendants 1 to 5 to this Court from the judgment and decree of the trial Court in O. S. No. 44 of 1959 which decreed the plaintiff's suit. The plaintiff, who filed the suit died, and his legal representatives were brought on record. The appellant herein is one of the legal representatives of the deceased plaintiff. O. S. No. 44 of 1959 on the file of the Court of the Subordinate Judge, Kavali was filed by the deceased plaintiff for a declaration of his title to the plaint ' A ' schedule properties and for delivery of possession of the same with profits. In order to entitle him to the relief which he claimed, the plaintiff made the following averments in the plaint.
2. The plaintiff is the reversioner to the estate of one Atmakaru Venkatasubbayya, who died possessed of the plaint schedule properties in the year 1883. On the death of Venkatasubbayya without issue, his widow Venkatasubbamma, succeeded to the properties and died on 11-7-1953 in the plaintiff's house. Venkatasubbamma was Venkatasubbayya's sister's daughter. The plaintiff was the sister's son of the said Venkatasubbayya. The plaintiff claimed that on Venkatasubbamma's death, he became entitled to the properties as the reversioner to the estate of Late Venkatasubbayya as his sister's son and that there were no other or nearer heirs than the plaintiff to Venkatasubbayya's estate when the succession opened on 11-7-1953 consequent upon the death of the widow. It was also alleged that Venkatasubbamma, the widow of Venkatasubbayya, who was also the plaintiff's sister, executed an unregistered will dated 1-7-1953 bequeathing all the properties to the plaintiff. Venkatasubbamma filed O. S. No. 246 of 1951 on the file of the District Munsif's Court, Ganigiri against defendants 6 and 7 in the suit for rent and possession in respect of item 1 of the plaint A schedule. During the pendency of the suit, Venkatasubbamma died. Thereupon the plaintiff filed I. A. No. 803 of 1953 for being impleaded as the local representatives of the deceased plaintiff Venkatasubbamma putting forward his sole reversionary right and also as a legatee under the will of Venkatasubbamma dated 1-7-1953. The present defendants 1 to 5 had filed I. A. No. 902 of 1953 to be impleaded as local representatives. It was their contention that Narayanappa, the father of the last male-holder Venkatasubbayya had taken in adoption their grandfather one Ramaswamy before the birth of Venkatasubbayya and as such there were the persons entitled to come on record by virtue of their nearer relationship to the deceased. These two I. As. Were enquired into by the Court and it was held therein that the present defendants 1 to 5 were the legal representatives and they were impleaded as such. A revision was preferred by the present plaintiff against the order in those I. As. And the same was dismissed. The plaintiff, therefore, was obliged to institute the present suit for establishment of his title to the plaint A schedule properties. The plaintiff in the present case had denied the adoption of Ramaswamy by Narayannayya.
3. The defendants had filed written statements and contested the plaintiff's claim. While emphatically denying that the plaintiff was the sister's son of the last maleholder, they set up the case of their grandfather Ramaswamy being adopted by Nrayanappa.
4. The trial Court framed appropriate issues. The most important issue was ' whether the plaintiff is the nearest reversioner to the estate of the late Atmakuru Venkatasubbayya. ' The Trial Court, on a consideration of the documentary and oral evidence placed before it, came up to the conclusion that it was established that the plaintiff was the nearest reversioner to the estate of the late Venkatasubbayya and decreed the plaintiff's suit and passed a decree declaring the plaintiff's title to the plaint A schedule properties and directing delivery of possession of the same by the defendants and also decreeing mesne profits against defendants 1 to 5 in respect of item 2 of the plaint A schedule properties. The claim regarding profits in respect of in respect of item 1 of the plaint A schedule was dismissed. Aggrieved by that decision, defendants 1 to 5 preferred an appeal to this Court. Venkatesam, J. who heard the appeal, set aside the judgment of the trial Court and allowed the appeal, resulting in the dismissal of the plaintiff's suit.
5. In this appeal, the learned Advocate-General appearing for the legal representative of the plaintiff had questioned the correctness of the judgment of Venkatesam, J. who held that the plaintiff had not proved that he was the nearest reversioner to the estate of late Venkatasubbayya. The Learned Advocate General submitted that his case as to the establishment of the plaintiff's reversionary right to the estate of late Venkatasubbayya stands or falls depending upon the Court's acceptance or rejection of Ex. X-10. He submitted that if Ex. X-10 is rejected as Venkatesam, J. Had done, then the other material in the case would not afford him any great assistance to prove the case of the plaintiff's reversionary rights.
6. So the only question that falls to be decided by us is whether the evidence on record is sufficient to hold that the plaintiff has proved his relationship to late Venkatasubbayya as his siater's son. If we are of the view that the plaintiff has not established that particular relationship which he claimed, it would follow that the suit has to be dismissed. It will then be unnecessary to go into the question whether Ramaswamy, the grandfather of the defendants 1 to 5, was adopted by Narayanappa, the father of Venkatasubbayya, before Venkatasubbayya was born. The nature of the present suit is one of in ejectment and it is well settled that he can succeed only on the strength of his own title. It is not obligatory on the defendants to plead and prove all the possible defects in the plaintiff's title. In Moran Mar Bassellios Chatholicos v. Most Rev. Mar Poulese Athnasius. ( AIR 1954 SC 526 ), what has already been well settled has been reiterated by the Supreme Court wherein they had observed that the plaintiff in an ejectment suit must succeed on the strength of his own title and that could be done by adducing sufficient evidence to discharge the onus which is on him, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against, in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited.
7. Ex. X-10 is the trump-card in the plaintiff's pack. Among other things, the trial Judge had accepted the genuineness of Ex. X-10 and he relied upon it strongly along with other pieces of evidence which are all of a less compellable character to find that the plaintiff was Venkatasubbayya's sister's son and the nearest reversioner to his estate. Venkatesam, J. Had elaborately considered the question of the genuineness of Ex X-10 and has come to the conclusion that Ex. X-10 could not be deemed to be genuine and could not be relied upon as established viz., that the plaintiff is the sister's son of Venkatasubbayya. The sheet anchor of the plaintiff''s case Ex. X-10, which is in Telugu, has been translated into English and it reads thus :
' Petition submitted by Atmakuru Seethamma, resident of Chandrapadu village, Pellur Taluk, within the jurisdiction of Raja of Venkatagiri to Mohammad Rahmthulla Saheb, Divanji of Venkatagiri Samasthanam.
I have got three daughters, namely Lakshminarasamma, Venkamma and Ademma and one son Venkata Subbaiah. As my father is dead my mother Peramma has been living with m and in order that I may not be troubled she herself has been attending to my cultivation and other works. As per the Sanad which was given to Narayanappa, my husband Velugoti Bangaru Yachamanyanim Garu , Raja of Venkatagiri one Kachchela of Valigada land and wet land of the seed extent of ( illegible ) Irasas under the tank in the aforesaid village. As you are a just ruler and a friend of the poor and helpless, I pray that in respect of the aforesaid Veligada Kachchela and the wet plot used for raising seedlings ( patta ) may be granted in favour of my son Venkata Subbayya. I also request that the Sanad which was so kindly granted may also be recorded in the name of Venkatasubbayya.'
Ex facie, this document purports to the more than 30 years old and what is strongly urged is that the presumption under Section 90 of the Evidence Act should be drawn in favour of its genuineness and the due execution. Section 90 of the Evidence Act may now usefully be extracted :
' Where any document, purporting or proved to be thirty years old, is produced from and custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. '
The scope and effect of Section 90 of the Evidence Act has been the subject matter of numerous judicial decisions and can be said to be no longer in doubt. By enacting Section 90 the Legislature sought to do away with the strict rules of proof which are enforced in the case of private documents, by giving rise to a presumption of genuineness with regard to documents reaching certain age. In other words, documents thirty and more years' old prove themselves. The foundations for the presumption are the age of the document, its unsuspicious appearance, the production from proper custody and other circumstances. The words ' may presume ' in Section 90 have been difined in Section 4 of the Evidence Act which states :
' Whenever it is provided by this Act that the Court may presume a fact, it may either regard such Act as proved, unless and untill it is disproved, or may call for proof of it . '
Even if all the requirements of the section are found, it is clear that a discretion is left in the Court either to dispense with proof in favour of the document. The presumption enacted in Section 90 is permissive and the Court according to the circumstances of each case, may or may not raise it. The discretion must be exercised judicially and not arbitrarily. The exercise of the discretion should be in consonance with law and justice and courts are enjoined to observe great caution in exercising the discretion under this section. Ordinarily when once the trial Court exercises its discretion, the appellate Court will be slow to interfere with that discretion. But that is not to say that the first appellate Court has no right to interfere with the discretion of the trial Court in the matter of drawing a presumption under Section 90 of the Evidence Act, if it is satisfied that the discretion was improperly exercised. The first appellate Court has undoubtedly a duty to scrutinise with care and caution the available evidence on record and the circumstances bearing on the case and come to its own conclusions. The language of Section 90 is worded in general terms and it was designed to meet situations varying in character, where passage of time might have obliterated the proof of genuineness of a disputed document. A wrong exercise of the discretion under this provision is likely to strengthen the hands of forgers. In every many cases, it may be most dangerous to draw the presumption that the document is genuine, merely because it is 30 years' old according to the recitals in the document and also is produced from proper custody. Where the trial Court fails to approach the case correctly, it is of utmost importance that the appellate Court should set matters right. Whether a document is produced from proper custody or not is a matter for juducial satisfaction and it ought to be founded on the evidence on record. The factum of proper custody cannot itself be the subject-matter of any presumption and it should be satisfactorily proved. On an analysis of the provisions of Sec. 90 and its interpretation judicially, we may deduct the following propositions :
1. That the presumption applies to documents proved to be 30 or more years old ;
2. The document must come from proper custody ;
3. The presumption is discretionary and in cases where a document is exfacie suspicious, the Court may very well refuse to make the presumption and call upon the party to offer other proof forthwith ;
4. The presumption can only be applied to documents which bear the signature of the writer or of witnesses and the presumption cannot be drawn in the case of unsigned or anonymous papers; and
5. The extent of presumption relates only to the signature, execution or attestation of a document that is to say, its genuineness. The drawing of the presumption does not connote the idea that the contents of the documents are true or that they have been acted upon ;
6. The presumption applies only to original documents and not on any copy thereof, certified or otherwise.
8. Bearing these principles in mind, we will examine the positionin relation to Ex. X-10. We will now consider that may be called the internal evidence regarding Ex. X-10. A superficial look at Ex. X-10 gives the impression that it may genuine. The paper is ancient. The writing looks old. It bears certain postal seals. The postal stamp is of the days of the East India Company. But when we scrutinise the document, we find that two quarter-sheets of old paper were joined together and that the ancient postal stamp was affixed over the centre of such joining. A look through the magnifying glass in Court by us left us in no manner of doubt that two separate quarter-sheets of paper were joined together and on that the postal stamp was affixed. The postal seal on the stamp itself is not clear to show the place of origin. Another postal seal just immediately to the left of the postal stamp is not clear, though it might be ' Nellore '. On the document we find three more postal seals purporting to be those of Naidoopet, Nellore and Venkatagiri. These three seals are in brown ink. All these seals contain the month of August, but when we come to the year, the Naidoopet seal contains the year as 187, presumably the missing portion may be ' O '. But the Nellore seal does not contain any year except probably ' 70 '. What purports to be Venkatagiri seal shows the year 1870. We are not prepared to say how these different seals happened to be on this document and whatever favourable impressions these old postal seals might have created in our mind the telling fact that the postal stamp was affixed on two pieces of paper joined together destroys such impression. We have no doubt on a scrutiny of the document in holding that the contents of the document were engrossed on two separate pieces of paper joined together. But for the manner in which the postal stamp was affixed the fabrication would have easily passed muster. As the document itself is so suspicious and renders itself to a charge of concoction the first requisite viz. The unsuspicious character of the document is absent, before the presumption contemplated by Section 90 of the Evidence Act. Could be drawn in its favour. On the top of the document we have a seal purporting to be that of Venkatagiri Estate. There is some writing immediately by the side of the seal to the right in different handwriting from the rest of the document showing the date 13-8-1970 and the words ' Venkatagiri '.
9. The document purportsto be from Atmakuru Seethamma resident of Chandrapad Village, Pellur Taluk within the jurisdiction of the Raja of Venkatagiri. It is addressed to Md. Rahamthullah Saheb Diwanji of Venkatagiri Samasthanam. From its nature it is a petition. There is no signature of Atmakuru Seethamma or her thumb-impression, but only a Nisani of Seethamma. It does not purport to be in anybody's handwriting. The presumption under Section 90 cannot be drawn obviously because the document does not purport to be in the handwriting of any particular person while no doubt it purports to bear the mark of Seethamma. It does not enable us to draw any presumption. Atmakuru Seethamma the sender of this petition, it is stated is the widow of Narayanappa and the maternal grandmother of the plaintiff and mother of Venkatasubbayya the last male holder. The document contains a prayer beseeching the Maharaja of Venkatagiri to grant a Sanad or Ptta in favour of Venkatasubbayya. It was stated therein, that previously the Sanad was in favour of Narayanappa and that a Sanad might be granted and the lands recorded in the name of Venkatasubbayya. A reference in this case is made to the fact that the petitioner Atmakuru Seethamma, had three daughters, viz., Lakshjinarasamma, Venkatamma and Ademma and one son Venkatasubbayya. It was also recited therein that as her father was dead, her mother Peramma had been living with her to help her in the matter of cultivation and other works. One fails to understand why the need for this petition had arisen. If a Sanad was granted to Narayanappa, ordinarily there is no need to ask for another Sanad in favour of his son Venkatasubbayya. It is alaso to be seen that Venkatasubbayya would have been a minor of very tender age at that time. The application was not made on behalf of Venkatasubbayya, minor represented by the guardian mother. It also passes one's comprehension why in this petition the request for a Sanad in favour of Venkatasubbayya the fact of the existence of the three daughters and their names were mentioned. It also appearsto us to be irrelevent to have made any reference to the mother of Seethamma in this petition. A reading of the contents of this petition leave no manner of doubt in our minds that the contents were specially introduced with a view to show that Nrayanappa had left three daughters and a son Venkatasubbayya. It is not disputed that the plaintiff is the son of Ademma. The plaintiff wants to say from these recitals that Ademma is the sister of Venkatasubbayya and therefore he is the nephew of Venkatasubbayya, who under the Hindu Law Inheritance Amendment Act, is the nearest reversioner to the estate of Venkatasubbayya. The letter significantly is not directed to Venkatagiri. If this was really sent by post, one would expect that the destination of the letter is Venkatagiri. On the other hand we find that it was written at the back of Ex. X-10. ' This letter shall be given by the Venkatagiri office writer to Mohammad Rahmathullah Saheb, Divan of Venkatagiri Samasthanam. ' Ordinarily, when a letter is intended to be posted to a particular person at a particular place, one would clearly indicate the addressee's place. The strange manner in which this address is written also strengthens our suspicion regarding the authenticity of Ex. X-10. The document in our opinion is a tell-tale concoction. We have given the document and its contents our very close attention and that features pointed out above by us clinchingly demonstrate the falsity of the document. The internal evidence afforded by Ex. X-10 being such as it is, does not persuade us to think that the document is a genuine one. That apart, we are clearly of opinion that it cannot be said that the document has come from proper custody.
10. On the question of proper custody, we have to bear in mind the Explanation appended to Section 90 of the Evidence Act. As per the Explanation documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be, but no custody is improper if it is proved to have had a ligitimate origin, or if the circumstances of the particular case are such as to render such origin probable. In order to prove their case that Ex. X-10 has come from proper custody, the documents relied on are Exs. X-11, X-14, X-16 and X-17. Ex. X-17 is a letter dated 13-8-1961 from the Thasildar of Venkatagiri to the Sub-Collector Ongole, wherein it is mentioned that the document was traced in the records of the old defunct estate of the Taluk and hence it was sent as it did not relate to the Taluk. It is an admitted fact that the Venkatagiri Zamindari was abolished and taken over by the Government on 7-9-1949 and all the records of the estate must have been handed over to the Government. One wonders why this document alone was in the office of the Tahsildar of Venkatagiri. It does not appear that any other documents which might have been left out by mistake or inadevertence were sent to the Sub-Collector, Ongole. What was stated is that Ex. X-10 was traced in the old records. Why was it suddenly traced and on whose instance was it traced This first document Ex. X-11 which started a chain of correspondence ultimately leading to the production of Ex. X-10 in Court raises any amount of suspicion and makes one wonder whether in fact it was not planted in the Thasildar's office and started on its journey, owing to a scheme hatched by the plaintiff and his advisers.
11. Ex. X-12 is the endorsement of the Sub-Collector Ongole, in connection with Ex. X-11 and is dated 26-8-1961 whereby it was forwarded to the Thasildar, Ongole, for necessary action or report. On this there is also another endorsement, presumably by the Thasildar, that the document did not contain the details of the lands covered by the Sanad and hence classification of the land was not known. There was an added recommendation that the file may be closed and eventually it was closed on 19-9-1961. Before the closure of the file , it would appear that a copy application , Ex. X-13 was made by one B. Lakshminarasimha Rao, son of the plaintiff on 7-9-1961. In the description of the document of which a copy was required, it was stated :
' A petition of Atmakur Seethamma, wife of Nrayanappa, for the transfer of Sanad in favour of her son Atmakur Venkatasubbayya regarding Chandrapadu lands ( Pelluru Taluk ), Ongole Taluk in the year 1970. '
In Col. (4) of Ex. X-13 the purpose for which the copy was required was mentioned thus :
' For reference, please note. The petitioner, Atmakur Seethamma is my father's grandmother. The public copy is needed for my personal reference and for filing before any office if required. ' By the time of this application, the present suit which was filed on 25-3-1958 was pending. Obviously, one would have thought that the application for the copy of Ex. X-10 was made with a view to produce it in the present suit. It is difficult to understand why he was chary of mentioning the purpose. This application Ex. X-13 was returned by the Sub-Collector and it was represented to the Thasildar with an application. Ex. X-14 dated 12-9-1961. The endorsement that appears on this application Ex. X-14 shows that the document Ex. X-10 did not contain the signature or thumb-impression of the applicant ( Seethamma ), nor did it bear the signature of the scribe. It was also noted that the Thasildar of Venkatagiri who sent it ( under Ex. X-11 )did not despatch the connected correspondence or as to how the application evidenced by Ex. X-10 for transfer of Sanad was disposed off. The Thasildar in this endorsement also made reference to Board Standing Orders and that the application did not answer the description of a document for which a certified copy copuld be granted and in any case that the authority to issue a certified copy vested only with the Collector. The Tahsildar made a remark that the document was traced and carefully sent which indicated that there was something behind it. The Tahsildar, therefore, felt that he could not grant the certified copy and referred the question to the Sub-Collector. The Sub-Collector by his order, Ex. X-17 dated 23-9-1961 had rejected the copy application. These above referred to documents indicate that the plaintiff was not successful in obtaining a certified copy of the document. It was later that Ex. X-10 was produced through P. W. 7 into Court on 11-10-1961 after the defendants closed their evidence. One is inclined to think that the plaintiff originally wanted to satisfy himself with the production of the certified copy of Ex. X-10 from the authorities and as he failed to secure the certified copy, he kept quiet as he dare not summon for Ex. X-10 and after the defendants had closed their evidence and finding himself in desparate straits to prove the relationship has summoned the courage to sent for Ex. X-10 with its tell-tale characteristics of fabrication. What is referred to above in connection with Ex. X-10 makes the inference irresistible that Ex. X-10 musu have been planted in the office of the Tahsildar, Venkatagiri and to lend support ti its existence and its official custody various attempts were made by the plaintiff to obtain a certified copy alone without daring to summon for the original. It is curious that the Tahsildar who ' traced ' it and despatched it under Ex. X-11 was not summoned. It is even more curious that Lakshminarasimha Rao, the son of the plaintiff, had not examined to show how and in what manner he came to know about the existence of Ex. X- 10 and what made him to applyfor a certified copy of the same through ineffectively. As stated by us earlier, there is no reason why when all the estate records were handed over on the abolition of the Venkatagiri Estate, this document alone remained in the office of the Tahsildar, Venkatagiri to be ultimately traced. It cannot be said that Ex. X-10 was in proper custody at the time it started on its journey under Ex. X-11 on 13-8-1961 and ultimately landed itself in Court as on Exhibit on 11-10-1961, through the person of P. W. 7. It had certainly not come from the care of a person with whom it would naturally be. If the document had been produced from the particular Government office which had custody of all the records of the abolished estate of Venkatagiri, then we might probably have been inclined to think that it had come from proper custody. But, on the other hand, the evidence of P. W. 7 makes it clear that patta transfer applications of the type Ex. X-10 are preserved in Taluk Office only for three years. He also stated that the Government had handed over all the documents relating to Pellur Taluk to the Taluk Office, Ongole, on 7-9-1949 and yet for 12 years nearly, the document, Ex. X-10, was in lone hiding in the Taluk Office, Venkatagiri. To our minds, there has been a shabby attempt on the part of the plaintiff to prove the proper custody of Ex. X-10. The question of genuineness of Ex. X-10 need not be dwelt upon in any greater detail. We unhesitatingly agree with Venkatesam, J. That the presumption invokable under Section 90 of the Evidence Act, is not attracted to Ex. X-10, therefore, must be held to be not genuine. The learned Judge was quite right in interfering with the discretion exercised by the trial Court which acted upon the presumption under Section 90 in relation to the genuineness of Ex. X-10, in view of all the external and internal evidence bearing upon Ex. X-10 and its authenticity. Once we have come to this conclusion, in accordence with the submission made by the Advocate-General at the opening of his arguements, the plaintiff's case must fail. We will, however, refer to certain aspects of evidence which were touched upon during the course of arguements.
12. Ex. A-1, B-1, B-12 and B-13 which were referred to during the course of arguements, merely afford evidence of negative character. A consideration of these documents would merely show that Venkatasubbayya did not have any sisters. Ex. A-1 is an Inam Statement made by Seethamma, the mother of Venkatasubbayya, who was the last maleholder in respect of the suit lands. In Col. (5) regarding the description of the family then existing, it was noted that it consisted of Venkatasubbayya and his mother Seethamma. In the pedigree attached to the statement, we find that Narayanappa, the husband of Seethamma, was shown to have only one son viz., Venkatasubbayya. There is no reference to any of the daughters of Narayanappa I. E., Sisters of Venkatasubbayya, in this Ex. A-1.
13. Ex. B-1 is the Inam Fair Register extract in respect of the suit lands. In that name of the owner was shown as Atmakuru Venkatasubbayya, aged four years. Under Col. (8) ' surviving heirs of the present incumbent. ' it is noted ' mother ' evidently referring to Seethamma. There is no reference whatsoever to any of the sisters of Venkatasubbayya. What was sought to be argued was that the non-mention of the names of the sisters in Ex. A-1 and B-1 might have been due to the fact that the Karnam might not have given the names of the family heirs. But there is no substance in this explanation when we see that it was Seethamma and not the Karnam that gave this statement. The defendants filed Exs. B-12 and B-13. Ex. B-12 is an Inam Settlement relating to Kareti Village and in Col. (5) of Ex. B-12 we find the names of family heirs also mentioned such as the sister and daughter of one Velamuri Venkata Narayanappa. Under Col (6) also, we find the names of certain family heirs mentioned. Likewise in Ex. B-13, the names of the wife and daughter one Rama Bhotla were mentioned. No doubt Exs. B-12 and B-13 do not relate to the suit lands or to Narayanappa's family. These two documents merely show that whenever there were family heirs, they were also mentioned. It is from this angle that the non-mention of sisters of Venkatasubbayya in Exs. A-1 and B-1 assures some importance. That is to say, if Venkatasubbayys had sisters, Seethamma the mother, who gave the statement, would not have failed to disclose the names of her daughters. The learned Judge in the judgment had observed that in a case of the present nature, not much weight could be attached to oral evidence and greater weight should be attached to the documentary evidence in the case. We are inclined to agree with him. The learned Judge had thoroughly scrutinised the oral evidence in the case. He referred in great detail to the evidence of P. W. 1. the plaintiff, and found that on his evidence he should not hold that he was the sister's son of Venkatasubbayya. P. W. 2's evidence was rejected by the trial Judge and Venkatesam, J. Agreed with him that the evidence of P. W. 2 did not go to establish that plaintiff's mother was the sister of Venkatasubbayya. We see no reason to take a different view of the matter. As the positive oral evidence sought to be let in was rejected by the learned Judge. It is not necessary to consider the oral evidence adduced on the side of the defendants, which on the question of the reversionary right of the plaintiff, is merely of a negative character.
14. Our attention was drawn to Ex. A-18 which is an unregistered will dated 1-7-1953 executed by Venkatasubbamm, the widow of Venkatasubbayys, bequeathing the suit properties to the plaintiff. But this is a document post litem motem inasmuch as Venkatasubbamma had already filed O. S. No. 246 of 1951 to which we had already referred and the efforts of the plaintiff to get himself impleaded as a legal representative of Venkatasubbamma. The learned Subordinate Judge had placed no reliance on Ex. A-18 as it contained statements made subsequent to the disputes and could not be admitted under Section 32(5) of the Evidence Act and that the plaintiff could not rely upon Ex. A-18. The learned Judge of this Court agreed with that view and we think rightly.
15. It is also significant that in the plaint the plaintiff badly stated that he is the sister's son of Atmakuru Venkatasubbayya and succeeded to his estate as the sole surviving nearest reversioner and heir after the death of Venkatasubbamma. When once we see that the plaintiff had made unsuccessful attempts to get himself impleaded in the place of the deceased Venkatasubbamma in O. S. No. 246 of 1951 and he had also known the positive case of the defendants who resisted his I. A. 803 of 1953 one would have expected him to give particulars of the number of daughters Narayanappa had. The plaintiff, in particular, should have stated that he was the son of Ademma as was sought to be developed in the evidence. The omission to give all the details of relationship to Narayanappa's family throws considerable doubt in one's mind as to the truth of the relationship sought to be established by evidence without any foundation in the pleading. As per the case of the plaintiff, Venkatasubbayya had three sisters Venkamma, Lakshminarasamma and Ademma, the latter being the mother of the plaintiff. It is not stated in the plaint whether the other two sisters of Venkatasubbayya had any male progeny and if so what happened to them.
16. In the view we have taken, it is not necessary for us to go into the question whether Ramaswamy, who is said to be the grandfather of defendants 1 to 5, was taken in adoption by Nrayanappa, before the birth of Venkatasubbayya, the last maleholder.
17. In the light of the discussion above, we have no hesitation in upholding the judgment of our learned brother, Venkatesam, J. and in conferming the decree as passed by him by holding that the plaintiff has failed to make out that he is the nearest reversionary heir to the estate of late Atmakuru Venkatasubbayya.
18. In the result, the letters Patent Appeal fails and is dismissed with costs. The court-fee payable on the memorandum of this appeal will be paid by the appellant.
19. Appeal dismissed.