This is an appeal from the District Court of Guntur in O.S. No. 60 of 1919 on the file of the 2nd Additional Subordinate Judge of Guntur.
2. The suit was brought by a minor (the plaintiff) for the recovery of certain jewels specified in the A Schedule and for the recovery of promissory notes eight in number specified in the B Schedule.
3. I have, in appeal, nothing to do with the jewels but only with 5 of the eight promissory notes. Three of the promissory notes have been found to belong to the 4th defendant Durgamma and in fact stand in her name. The other 5 do not stand in the name of the 4th defendant and the plaint asserts that the promissory notes were endorsed in favour of the 4th defendant by one Lakshmidevamma who died in 1919 having survived her husband who died in 1903. The plaintiff, a son adopted by Ramakrishnamma and Lakshmidevamma, was their heir after the death of the latter.
4. The written statement of the 1st defendant, who is the father and guardian of the 4th defendant, states: 'The cash and jewels, etc., given to the 4th defendant by her father and her husband had been given away for interest by the said Lakshmidevamma and she was improving or increasing the same and getting pronotes at first executed in favour of the 4th defendant. When later on, they were to be executed again, she got the pronotes Nos. 6, 7 and 8 executed in favour of the 4th defendant. 'Now with regard to the other five, it is pleaded that consideration for them was either the jewels of the 4th defendant or the personal stridanam of Lakshmidevamma and that they were duly endorsed in favour of the 1st defendant as guardian of the 4th defendant on 5th January, 1919.
5. On appeal to the District Judge, on this point, he held, although he did not believe, that consideration for the 5 promissory notes in question was provided from Durgamma's money, on the ground, that the practice of Lakshmidevamma seems to have been to keep her moneys and that of Durgamma separate, still, the reason, why Lakshmidevamma might have endorsed over the promissory notes to the 1st defendant was to enable him to find funds for getting a re-transfer of the properties sold by the 4th defendant's husband, who seems to have been a man of reckless character, for very much less than what they were worth.
6. Now Mr. Somayya, for the plaintiff-appellant, complains that there were no materials in the case set up by the plaintiff on which the District Judge could find as he did. But I think that a perusal of that portion of the written statement, paragraph 3, is sufficient to displace this argument as also reference to Issue III, 'Whether the pronotes in Schedule B other than items 6, 7 and 8 were assigned to the 4th defendant? Is the assignment valid and binding on the plaintiff?' Both the alternatives set out in the written statement are discussed by the Subordinate Judge in paragraphs 29 and 30 of his judgment and therefore they must have been presented and argued before the Trial Court.
7. Secondly, there is a very important statement by the learned District Judge in para. 17 of his judgment, 'It is conceded before me that if these assignments are found to be genuine, the plaintiff does not contest the validity of the assignments on the ground that the consideration for the promissory notes formed part of Ramakrishnamma's estate.' Now this is a very important admission and in fact practically conclusive as regards the appellant's case. The hearing before the learned Judge was on the 8th October, 1921, judgment was pronouced on 9th November, the grounds of appeal were prepared on 17th April, 1922, and the second appeal was presented on the following day.
8. Now three affidavits have been filed by one side or the other as to the facts of this admission having, been made. As I have said more than once, I very much deprecate having to decide on the trustworthiness of statements made on one side or the other by gentlemen of the bar. My training and my own feeling is to accept without reserve anything that is said by a gentleman in the position of a vakil. I say this in order to show my unwillingness to go into the matter which has been raised in these affidavits. The gentleman who appeared for the plaintiff in the hearing of the appeal was Mr. M. Kalidas, a High Court Vakil, while Mr. Seetapathi Rao appeared for the 3rd respondent and Mr. Nagabhushanam, pleader for the 1st respondent in A.S. No. 69 of 1921.
9. Mr. Kalidas was not present on all the days when the appeals were heard and therefore his statement that neither he nor the appellant's guardian made the admission in question may be safely accepted. Mr. Seethapathi Rao states that the admission was made by Mr. Nagabhushanam in reply to a pointed question by the Court during the hearing of the appeal when Mr Kalidas was absent at Bapatla. Mr. Nagabhushanam states that he does not remember any such admission being made and he is perfectly certain that such admission could not have been made by him. In the face of this evidence I cannot say that the learned Judge's statement has heen in any way shaken.
10. There is authority to which I have been referred, viz., Madhusudan Chowdhri v. Chandrabati Chowdrain (1917) 6 L W 437 and other cases [Sarat Chandra Maiti v. BibhabatiDebi (1921) 66 IC 433 Mirza Shamsher Bahadur v. Munshi Kunj Behari Lal (1907) 3 MLT 212 etc. to show that what the appellant should have done as soon as he found such a damaging statement in the judgment of the learned Judge is this : He should have asked the learned Judge, for a review of his judgment, when the matter was fresh in the mind both of the learned Judge and the learned vakils and not have waited as he did for one year and nine months to get affidavits from gentlemen, one of whom did not remember anything about it. I think, therefore, that the admission must stand.
11. It seems to me that the other points raised by Mr. Somayya need not be dealt with by me. It is a little anomalous that the complaint should be now that the fingerprint expert was not called for when the defendant wanted to call him, the application was opposed by the plaintiff. The same remark applies to Ex. S. The whole question discussed in para. 16 apparently goes to the credit of D. W. 3 who was cross-examined regarding the date of Ex. S. However, these two last points are questions of evidence and questions of fact and I am not disposed or entitled to go into them in second appeal.
12. I therefore think that the second appeal must be dismissed with costs.