Sambasiva Rao, J.
1. The first respondent in the appeal has sought partition of certain properties into three shares and possession of one such share. The lower Court decreed the suit in part. The second defendant has filed this appeal. The plaintiff - first respondent however has filed neither a cross-appeal nor cross-objections.
2. The properties, of which partition was sought are described in three schedules. In Sch. A, lands are enumerated in Sch. B cattle and paddy, and in schedule C outstandings.
3. The plaintiff (respondent No. 1) has stated his case in the plaint as follows: His father was Pedaveerayya. Padeveerayya and defendants 1 and 2 were brothers. Originally, the father of the three brothers, Pitchaiah was managing the joint family properties. After Pitchaiah's demise the plaintiff's father Pedaveerayya became the Kartha. When Pedaveerayya died, the first defendant succeeded to the management. When these properties were being managed jointly some other properties were purchased with the aid of the income from the family assets in the names of several members of the family. The plaintiff wanted a partition in the year 1967 according to which there was a severance in status of the family and certain properties were allotted to the three branches in a tentative arrangement. Even since then, the plaintiff and defendants 1 and 2 have been provisionally in enjoyment of these properties, tentatively allotted to them. In 1969, he demanded a final partition which was denied. Therefore, he filed the suit. According to him, the family had the properties described in A, B and C Schedules to the plaint.
4. In addition to defendants 1 and 2, there were seven other defendants to the suit, but reference to them is not necessary because the present appeal in no way concerns them.
5. Resistance to the suit came from defendants 1 and 2. The main written statement came from the first defendant. According to his version, his father Pitchaiah had two divided brothers Ramaiah and Lingaiah. Ramaiah had no male issues and so, brought up the second defendant who was his brother's son, ever since the latter was six months old. On the eve of his death he gave away all his properties to the second defendant under a will. While Pitchaiah was alive, he managed the properties including those given to the second defendant by Ramaiah, since by that time the second defendant was a minor. After Pitchaiah's death, Pedaveerayya took over the management. During the course of the management, certain properties were jointly acquired. In 1965 there was a partition. Under it the properties which were given to the second defendant by Ramaiah were exclusively allotted to the share of defendant 2 and Pitchaiah's properties were divided into two shares; one share had been given to the plaintiff and the other to the first defendant. The joint acquisition were again divided into three shares, each one taking one share. That was a final partition and ever since then, the three of them were in exclusive and separate enjoyment and possession of their respective shares. Several of the properties mentioned in A schedule did not belong to the joint family of the parties since they were the separate properties of the second defendant. The family did not possess either the cattle or paddy or the outstandings described in B and C Schedules. Since there was a partition, which was final, in the year 1965, there could be no fresh partition.
6. The second defendant in his written statement reiterated the above averments and also added that Ramaiah executed a will dated 10th Jan. 1923 under which he bequeathed all his properties to him.
7. The lower Court held that the earlier partition was only a tentative one, that the will set up by defendants 1 and 2 in favour of the second defendant by Ramaiah was not genuine, that there are the moveable or outstandings belonging to the family as described in B and C schedules and that all items described in A schedule excepting Items 12, 22 and 27 belonged to the family and were available for partition amongst the plaintiff and the two defendants into three shares. On the basis of these findings a decree was passed for partition of the said properties into three shares and possession of one such share to be given to the plaintiff. The second defendant has preferred this appeal.
8. Sri T. Veerabhadrayya, appearing for the appellants raises two contentions. He first maintains that the will set up by the defendants is genuine. Secondly, he submits that the earlier partition was not a tentative one but was a final partition arrangement between the parties.
9. We will now take up the first question as to whether the will on which defendants 1 and 2 relied and on the basis of which they resisted the claim of the plaintiff for partition in respect of several items is a genuine one. The will was marked as Ex. B-27. It purports to bear the date 10th of Jan., 1923. There are several attestations on it by persons some of whom were signatories and the others were marksmen. The thumb impressions of the marksmen were not taken on the will. It is the case of the defendants that the will was got executed by Ramaiah one month before his death. The material recitals of Ex. B-37 are:
The attestor had no male issue. He brought up Lakshmaiah (second defendant) who was the son of his younger brother Pitchaiah, since 12 years before the will, ever since the boy was six months old. The testator had three daughters of his own. He was suffering from fever and dysentery and was not hopeful of survival. For perpetuation of his family he and his wife took Lakshmaiah into the house and fostered him with affection. The wife of the testator died 26 days before the will. Intending that Lakshmaiah might be taken as adopted son, he (Lakshmaiah) is empowered to perform the obsequies of the testator after his death and of his wife. Lakshmaiah was to enjoy the entire property consisting of movables and immovables belonging to the testator and mentioned in the schedule attached to the will. So long as Lakshmaiah was a minor Pitchaiah who is his natural father, should act as his guardian and protect the entire property. Pitchaiah should also maintain the minor Lakshmaiah and his unmarried daughters, two in number and get them married. The debts he owed should be discharged from the income of the properties according to convenience without loss to Lakshmaiah. As soon as Lakshmaiah attained majority the property shall be delivered to him. Then in the schedule as many as 12 items of immovable properties and one item of movable properties were given.
10. We are not inclined to take a different view from that of the trial Court that the will was not proved to be a genuine one. We will now give our reasons for our conclusion.
11. The will was not registered and there is no explanation whatsoever forthcoming from the propounder of the will why it was not registered. Further, it did not see the light of the day and it was not published at any time before the present suit. It is not as if there was no occasion for publishing the same. If a will of this nature were in existence, it should have been produced and mutation should have been effected on its basis. Further, when pattas were applied for the will would have been the most natural piece of evidence for the second defendant to seek and obtain pattas. The unregistered will, though 46 years had elapsed before the suit, was not disclosed or published. There is no direct evidence about the execution of the will. The scribe and all the attestors died. As we have already pointed out, the impressions of those attestors who were marksmen were not taken on the will. Though the will was written on more than one page, there was only one impression of the testator. This was sent to an expert for comparison with the admitted thumb impression of the testator contained in Ex. A-2. The expert, later examined as P. W. 7. opined that the thumb impressions on Exs. A-2 and B-37 were dissimilar and that the same person could not have put the two impressions. We have ourselves compared the two thumb impressions. The one on Ex. B- 37 is very much different from the admitted impression on Ex. A-2. We have therefore, no hesitation in accepting the opinion of the expert that the same person did not affix his thumb impression on the disputed will and on Ex. A-2. The particulars of the will were not disclosed even in the reply notice Ex. A-11 which was issued before the suit. This enhances the suspicions about the will. There is no evidence that sub-sequent to Ramaiah's death, the properties mentioned in the Schedule to the will were transferred in the name of the second defendant. On the other hand, the village Karnam, examined as P. W. 1 stated in his evidence that the family was enjoying all the lands. He added that Ramaiah, the testator had no land of his own. There is no evidence that land revenue was being paid in the name of the second defendant on these lands said to have been bequeathed to the second defendant. Only from 1950 onwards we find some revenue receipts, as by then disputes between the parties obviously arose, and they do not throw any light on the question. There is no explanation whatever why separate payment of land revenue was not made by or in the name of the second defendant, had really Ramaiah bequeathed to him several items of properties, from 1923 to 1960. Further, the provisions of the will appear to be unnatural and improbable. Going by the recitals in the will, it is true Ramaiah had no male issue, but he had three daughters. One of them was married and two were still to be married. The first defendant, examined as D. W. 12 explains that the eldest daughter was married long before the death of Ramaiah. Her husband was a resident of a neighbouring village which was only one mile away. It is very significant that neither Veeramma nor her husband attested the will. It cannot be postulated that Ramaiah could have executed the will without the knowledge of his married daughter and son-in-law, particularly when their village was only one mile away. The same witness deposed that Ramaiah died within one month after the execution of the will. In the will it was stated that the testator was suffering from fever and dysentery which caused doubts in his mind about his survival. When such was his physical condition, it was impossible to believe that his eldest daughter and her husband were not present at the time of the execution of the will. When all the properties were being given to the brother's son and nothing to any one of the daughters, the first precaution that any wise man would have taken was to take the attesting signature of the married daughter or her husband. The absence of such an attestation is very material in the circumstances. That apart, there were two unmarried daughters of Ramaiah. In the will it is stated that Pitchaiah was to manage the properties and maintain Lakshmaiah and the unmarried daughters and get them married. It is surprising that the will did not make any provisions for the three daughters who were his own children, particularly the unmarried daughters. Could it be ever imagined that a father would completely disinherit his own children in preference to his brother's son? We can understand if some reasonable provision was made for the daughters and then the rest of the properties were given to his brother's son. But the recitals of the will would have it that all the properties were given to the brother's sons only a direction that the daughters should be maintained and got married, and this in regard to motherless children, because in the will itself it is stated that testator's wife died 26 days before the will. It is impossible to believe that Ramaiah would have completely left his two unmarried daughters in the lurch without making any provision for them. The first defendant, as D.W. 12 stated that the eldest daughter was about 20 years old, the second daughter was about 14 or 15 years old, while the third daughter was 5 years old when their mother died. We cannot even imagine that the father would have so cruelly left out his children of such tender years, particularly when their mother had just then died, without making any decent provision for them, and would have given al his properties to is brother's son. Moreover, the will says that the second defendant had been taken by the testator and his wife to be brought up as they had no male children, 12 years before the will. The first defendant's own statement as D.W. 12 would show that Ramaiah and his wife were then of child bearing age. Their last daughter was only 5 years old when Ramaiah died. That means that they begot a daughter seven years after the alleged taking in of the second defendant into the house of Ramaiah and his wife were begetting children, it would have been highly improbable for them to have thought of fostering and adopting the second defendant at that stage. Moreover the will speaks of perpetuating the line of the testator. Then we fail to second defendant, why the second defendant was not adopted earlier. Without adopting there could not be a perpetuation as the Hindus would like to have it. Even in regard to the performance of obsequies, Lakshmaiah was only a minor boy of 12 years and one of the two spouses viz., the testator's wife had already died. So Lakshmaiah could not have by himself performed the obsequies of the testator's wife. When the testator was apprehending the impending death, he could not have been very hopeful of this boy of tender years performing his obsequies. thus, the will bristles with improbabilities and unnaturalities and even impossibilities.
12. As against this, the defendants have examined themselves as D.Ws. 12 and 13. The first defendant as D.W. 12 said that he was 65 years old in the year 1973 when he was examined. That means he could have been only 15 years old when the will was executed. It is difficult to believe that he could know the details about the execution of the will. There is no doubt that he was wholly sailing with the second defendant. Thus, his evidence is interested and is also improbable for the reason that he could not have had any proper perspective as a young boy of 15 when the will was executed.
13. The second defendant was examined as D.W. 13 and his evidence cannot be given any importance because he is an interested witness and further, he was only 12 years old when the will was executed. Then there is the evidence of D.Ws. 3 and 14. D.W. 3 was the son of one of the attestors and he was examined to identify the signature of his father and the handwriting of the scribe. He also produced the promissory notes Exs. X-16 and X-17 to prove the handwriting of his father. Obviously, he is a man who was pressed into service. His evidence is artificial. He claimed to identify the handwriting of the scribe because he was his teacher. He worked as a Pleader's clerk for 10 years. But he had no in his name at any place. However, he claimed to have some properties in the name of his wife. A suggestion was clearly made that he was paid to give evidence and that he was not really acquainted with the signature of his father or the handwriting of Venkatappayya. We do not think it is safe to rely on the evidence of this witness.
14. D.W. 14 was examined to identify the handwriting of the scribe. The witness claimed that he was also a student of the scribe and he was acquainted with the handwriting of the scribe. His evidence makes very interesting reading. No regular summons appears to have been sent to him. Defendant No. 2 took the summons to him. He produced Ex. X-23 which purported to be in the hand of Venkatappayya, the scribe of the will. However, the witness admitted that it was neither executed by him nor was executed in his favour and, therefore, this was not the proper custody. Curiously he claimed that it was found in his records. The executant and the executor under Ex. X-23 were not related to him. Only the previous night of his evidence he traced Ex. X-23 in his old records. He could not explain how it came into his records. This statement alone would show that he was speaking nothing but falsehood. He also admitted that on the basis of his studies under the scribe he could not identify his handwriting. He did not attest any document written by the scribe. He also clearly admitted that he could not say which document was written by Venkatappayya, the scribe. He also clearly admitted that he could not say which document was written by Venkatappayya, the scribe. It was also suggested to him that he was deposing falsehood for consideration though he denied it.
15. This evidence does not in any way convince us. In the light of the circumstances pointed out above there is no escape from the fact that the defendants who propounded the will have miserably failed to prove its execution and to remove the suspicious circumstances surrounding the will.
16. All the same, Sri Veerabhadrayya, raises another contention. The will bears the date of 10th Jan., 1923. Therefore it is more than 30 years old. So the defendants are entitled to the benefit of the presumption that arises under S. 90 of the Evidence Act. If the document purports or is proved to be 30 years old and comes from proper custody a presumption arises that the signature and every other part of the document which purports to be in the handwriting of any particular person, is in that person's handwriting, and in the case of a document executed or attested that it was duly executed and attested by the person by whom it purports to be executed and attested. Since the date on the will is 10-1-1923 it is clear indication that it is a document more than 30 years old therefore Sri Veerabhadrayya says it 'purports' to be 30 years old. His argument comes to this. If any document bears the date which is beyond 30 years, then automatically the presumption under S. 90 would apply to it and the presumption thereunder would arise.
17. We have considerable difficulty in accepting such a contention. If this construction were to be laid on S. 90 then anybody catching hold of an old paper can put a date beyond 30 years, and then all the presumptions postulated by S. 90 could be invoked by him. Such could never be the intention of the Parliament in using words 'purporting or proved to be thirty years old'. The words 'purporting' and 'proved' must be read in a sequence. The section cannot in one breath insist on proof of the age of the document and in another breath rest content with mere appearance. All the presumptions under S. 90 would arise only if the document is proved to be 30 years old or if it purports to be 30 years old. In order to show that a document purports to be 30 years old, merely referring to the date is not sufficient to come within that part of that section. There must be some evidence to show that the document is 30 years old. A clear proof that it is 30 years old may not be necessary in order to bring it within the scope of 'purporting'. At least a prima facie case must be made out that this document is 30 years old. Otherwise the legislature would not have put 'purporting' along with the word 'Proved'. Moreover, if that is not the true meaning and import of the word 'purporting', it would lead to startling results. Anybody by putting an old date could claim all the presumptions which S. 90 would raise. We may here usefully refer to the following passage in Sarkar on Evidence (12th Edition) at page 729:
'By 'purporting' is meant 'stating itself to be', but this statement being heresay would be excluded were it not for this section, which contains an excellent provision if it is not misunderstood. 'The period of thirty years signifies of course, the period in which the specific document has been in existence. The purporting date is in itself not determinative : for anybody may have forged the written date but yesterday. Accordingly, this existence of the document thirty years ago must be somewhat shown'. If a document dates thirty years back, that itself is not conclusive for the purpose of drawing the presumption. In spite of the date appearing on it, it is necessary that its existence for 30 years should be proved. In Forbes v. Wale (1764-1 Wm Bl 532) a bond bearing the date 1872 was objected to on the ground that if the length of the date was alone sufficient to establish it, a knave has nothing to do but to forge a bond with a very ancient date', whereupon Mansfield L.C.J. , 'directed the bond to be proved'.'
18. Therefore merely the appearance of a date of more than 30 years old would not bring the document within the protection of S. 90 of the Evidence Act. There must be some evidence showing that it purports to be 30 years old.
19. In any case the presumption, even if one is permitted to be raised in favour of Ext. B-37 that presumption is only rebuttable. The circumstances which we have pointed out above would show that it was not executed by the testator on 10th January 1923 and that in all likelihood it was a fabrication which was brought into existence much later. Reliance was placed on Munnalal v. Kashibai, AIR 1947 PC 15 and Venkata Rama Rao v. Bhaskara Rao, : AIR1962AP29 In the light of the circumstances of the present case, these two decisions rendered no help.
20. For the foregoing reasons we hold that the will on which the appellant second defendant wants to resist the claim of the first respondent plaintiff is not proved to be genuine.
21. Then remains the question as to whether the earlier partition was a tentative one or a final one. Both sides are one in saying that there was an earlier partition. The plaintiff states that there was a partition in 1967 while the defendants state that it was a tentative one while the defendants maintain that it was a final partition. In order to show that the partition of 1965 was a final one, and therefore a fresh suit for partition would not lie, the defendants rely on that evidence of D.W. 9 in particular and also that of D.Ws. 1 and 2. D.W. 9 is said to be a person who has measured the lands and noted the shares. But he was only a village servant. It is very difficult to believe that the parties would invoke the services of the village servant of the village to measure the land and effect partition when there was a village Karnam. The evidence of D.W. 9 is very unconvincing and he does not appear to be well acquainted with measurements. Further D.W. 1 who claimed to have been present at the time of the partition did not at all refer to D.W. 9 or the role he played. This would completely destroy the story of the defendants that it was D.W. 9 that measured the lands and effected the partition. D.Ws. 1 and 2 claim to have been present when the partition was effected. But their evidence was not accepted by the trial Court nor does it appeal to us. The evidence of those two witnesses is full of discrepancies and improbabilities.
22. There is one fatal circumstance which is against the theory of the defendant that the earlier partition was a final one. According to them the partition was a very complicated one. There were three sets of properties, one belonging to Pitchaiah, one belonging to the second defendant having been bequeathed to him by Ramaiah and the third consisting of properties jointly acquired with the aid of the income from those properties. Pitchaiah's properties were divided into only two shares: Ramaiah's properties were exclusively allotted to the share of the second defendant and the jointly acquired properties were divided into three shares. The evidence shows that there were already disputes amongst the members of the family. Under the circumstances any reasonable person would expect that this partition would have been evidenced by a written and registered deed. There is no document at all evidencing this partition. It is impossible for us to believe that the parties would have effected a final partition without a document when it was beset with so many complications which we have stated above. This will strike at the very root of the case of the defendants that the earlier partition was a final one. We must, therefore hold that the defendants have failed to prove that there was an earlier final partition which would stand in the way of decreeing a fresh partition.
23. These are the two considerations raised in support of one Appeal and we find no substance whatever in any one of them. In the result, the appeal is dismissed with the costs of the contesting first respondent-plaintiff. Appeal dismissed.