1. The only point in this case is as to the rejection of a document purporting to be a mortgage-deed of 1873.
2. The plaintiff produced the original in Court hoping that as the document purported to be more than 30 years old, the Court below would presume it to be genuine. Before the plaintiff closed his evidence he did not ask the Court of first instance to decide whether the document was going to be presumed to be genuine or not. The Court of first instance however presumed it to be genuine apparently without carefully examining it. On appeal the learned Judge examined the document very carefully and marked passages in it with red pencil which he says have been erased and re-written with fresh ink. The records were sent for and I have examined the document myself and I fully agree with the lower appellate Court that the document has been tampered with.
3. Under these circumstances, the lower appellate Court was perfectly justified in differing from the first Court and in refusing to draw any presumption as to its genuineness. The learned vakil for the appellant relies on the case of Manavikraman v. Nilambur Thacharakavil AIR 1916 Mad 928. But even in that case it was conceded that the lower appellate Court would have power to differ from the view of the Court of first instance, though it should not lightly interfere with the exercise of the discretion invested in the first Court. In the present case having regard to the suspicious nature of the document, the lower appellate Court has rightly interfered with the exercise of the discretion of the first Court.
4. There is a further difficulty remaining. If it be conceded for the sake of argument that the document ought to be presumed to be genuine in the sense that it was executed by the person by whom it purports to have been executed it does not follow that this document is sufficient evidence to prove the plaintiff's case. The presumption can only dispense with the necessity of its proof, but the question of the sufficiency of the evidence still remains. When the document is so suspicious, on the face of it, and when the very place where it professes to mortgage the tree has been erased and re-written, the document, even if admitted, is wholly insufficient to prove the plaintiff's case. The plaintiff ought to be thankful that he has not been ordered to be prosecuted by the lower appellate Court. The appeal is dismissed.