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Seshammal and ors. Vs. Kuppanaiyyangar and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1926Mad475
AppellantSeshammal and ors.
RespondentKuppanaiyyangar and anr.
Cases ReferredMi Me v. Mi Shive Ma
- - if that be so, why was it not filed in evidence ? as we have said, in the lower court, an attempt was made but unsuccessfully to obtain permission to file this document......previous statement made by the 1st defendant in this case. she deposed in o.s. no. 324 of 1918 : 'janaki ammal is the wife of my senior father-in-law.' this is evidence of the fact that 1st defendent's father-in-law had an elder brother whose wife was janaki ammal. this proves nothing more. whether janaki ammal is the wife of ilayalwar, brother of krishnamachariar, or whether she is not, on this point, no light is thrown by this deposition. then, the plaintiffs strongly rely upon ex. b. that purports to be a sale-deed by janaki ammal in favour of vijaraghava iyengar, the father of the plaintiffs. it contains the following statement : ' deed of sale in favour of vijaraghavachariar son of krishnamachariar, by janaki ammal, wife of krishnamachariar's younger brother ilayalwar.' there is no.....

1. The learned Subordinate Judge has reversed the decision of the District Munsif on the first issue. The District Munsif has found that the plaintiffs have not proved the relationship set up by them. The Subordinate Judge has found that the plaintiffs are the reversionary heirs of the deceased Krishnamachariar and has remanded the suit for trial of the other issues. Although the appeal has taken the form of a civil miscellaneous appeal against an order of remand the Subordinate Judge is a final Judge of fact and the only grounds available to the appellant to attack the judgment are those which would be available to him in second appeal : see Venganayyan v. Ramaswami Ayyan (1896) 19 Mad. 422 and Joseph Armugam Pillai v. Muruga Pillai [1909] 6 M.L.J. 198. The question, therefore, is: Is the judgment of the Subordinate Judge one with which we can interfere in second appeal The argument on behalf of the appellant is mainly that there is no evidence in support of the finding. After carefully going through the judgment and the material on which that judgment is based, we agree with the appellant's contention.

2. The learned Subordinate Judge purports to act, firstly, on the oral evidence of three witnesses examined for the plaintiffs. Plaintiffs' Witness No. 1 says thus : ' I do not know my grandfather or his brothers personally. My father had prepared a genealogy for the relationship. I took information from it. ' The pedigree prepared by this witness' father would certainly he a statement admissible in evidence under Section 32, Clause(5) or Clause(6), but, unfortunately, this has not been produced. No reason has been given for admitting secondary evidence of this document. Plaintiffs' Witness No. 1 says nothing further on this subject. The learned Subordinate Judge observes that P.W. No. 1 was not crosd-examined with reference to his omission to produce this pedigree. It is scarcely necessary to say that the plaintiffs who endeavoured to make out that they were the reversionary heirs were bound to produce this pedigree, because according to the evidence of P.W. No. 1 that is the foundation of their case. Without the original of that pedigree, P.W. No. l's evidence amounts to absolutely nothing. It is unnecessary to examine in detail the evidence of the second witness for the plaintiff. All that he says is this : Plaintiffs' grandfather Krishnama Chari told me that he had three brothers when I was learning'. Veda at Punnai.' Who are these three brothers That is not explained. And what is the connexion between Krishnamachariar and Kuppan Iyengar This is also not explained. His evidence, therefore, is of no use to the plaintiffs. Plaintiffs' Witness No. 3 is a Naicken, whereas the parties to the suit are Vaishnava Brahmins. All that he says in his evidence is : ' People say that plaintiffs are 1st defendant's dayadis. ' The learned Subordinate Judge is of the opinion that this is admissible, but he seems to overlook the provisions of Section 50 of the Indian Evidence Act. ' Family conduct,' to use a compendious expression, is admissible to prove relationship. But there is no evidence of family conduet here at all. The illustrations to the section make the point very clear. Illustration (a) runs thus:

The question is whether A and B were married.

3. The fact that they were usually received and treated by their friends as husband and wife is relevant. There is a casual observation in the judgment of their Lordrhips of the Privy Council in Mi Me v. Mi Shive Ma [1912] 39 Cal. 492 : ' In the absence of direct proof consent may be inferred from the conduct of the parties or established by reputation.' But a. perusal of the judgment will show that the evidence which was accepted by the Privy Council was evidence of family conduct. As Messrs. Amir Ali and Woodroffe point out in their book on Evidence, Section 50 enacts a rule different from the law in England. According to English Law he says : 'General reputation is admissible to establish the fact of parties being married. Accordingly, general evidence of reputation in the neighbourhood, even when unsupported by facts, or when partially contradicted by evidence of a. contrary repute, has been held receivable in proof of marriage. The present section is limited to opinion as expressed by conduct, and there appears to be no other provision in the Act, under which such evidence of general reputation would be receivable. ' We cannot construe the judgment of their Lordships of the Judicial Committee as laying down a rule of law completely at variance with the clear rule of the Indian Evidence Act.

4. This then is all the oral evidence in support of the pedigree put forward by the plaintiffs. It is noticeable that the 1st plaintiff has not chosen to go into the box to support the case set up.

5. Turning now to the documentary evidence we have first Ex. D. This is a previous statement made by the 1st defendant in this case. She deposed in O.S. No. 324 of 1918 : 'Janaki Ammal is the wife of my senior father-in-law.' This is evidence of the fact that 1st defendent's father-in-law had an elder brother whose wife was Janaki Ammal. This proves nothing more. Whether Janaki Ammal is the wife of Ilayalwar, brother of Krishnamachariar, or whether she is not, on this point, no light is thrown by this deposition. Then, the plaintiffs strongly rely upon Ex. B. That purports to be a sale-deed by Janaki Ammal in favour of Vijaraghava Iyengar, the father of the plaintiffs. It contains the following statement : ' Deed of sale in favour of Vijaraghavachariar son of Krishnamachariar, by Janaki Ammal, wife of Krishnamachariar's younger brother Ilayalwar.' There is no evidence worth the name to establish the identity of Janaki Ammal of this document with Janaki Ammal referred to in the deposition of the 1st defendant. Granting, however, that the evidence is sufficient for this purpose, what do we have? Exhibit B is an unregistered sale deed. No doubt it comes from the custody of the plaintiffs. It is more than 30 years old, but is it really necessary that the presumption under Section 90 should be drawn in favour of its genuineness The Court is permitted to presume that an ancient document produced from proper custody is genuine. But the circumstances of the case do not justify such a presumption being made. The District Munsif refused to make that presumption. The document is attested fey two persons. We have been told nothing -as to whether these persons are alive or they are dead. The document refers to a usufructuary mortgage and a kychit and they have not been produced. In these circumstances, it is extremely difficult to hold that Ex. B is genuine. As regards the kychit, we may observe that the District Munsif says in his judgment that the plaintiffs had ' kept back ' the kychit. The learned Subordinate Judge points out that the kychit was tiled but was not exhibited at the trial and was later taken back by the parties. An application was made to the Sub-Judge to make it evidence in the appeal, but he refused to allow that.

6. We were pressed in the course of the argument that we ought to receive this document in evidence. In the first place there is no application before us to receive additional evidence, and, secondly, even the document is not before this Court. It is after all an unregistered cadjan document. The suggestion now made is that the kychit would conclusively have proved the plaintiff's pedigree. If that be so, why was it not filed in evidence As we have said, in the lower Court, an attempt was made but unsuccessfully to obtain permission to file this document. We cannot in these circumstances comply with the request that we should permit the kychit to be received in evidence.

7. There remains only one other matter and it is this. It is said that some of the properties which were at one time in the possession of Krishnamachari are later in the possession of Kuppanna Iyengir the propositus. It is true that distribution and devolution of family property is often very valuable evidence of conduct' under Section 50. But, in this Case, the material is wanting from which any inference in favour of the plaintiffs can be drawn. It is possible that Kuppanna Iyengar purchased, as any stranger might have done, the property which was once in the possession of Krishnamachari. It is for the plaintiffs to make out that there was devolution of property which would support their case. The statement of the learned Judge that the natural inference is that there was a, family partition is not borne out by any evidence.

8. For these reasons we are constrained to interefere with what is apparently a finding of fact and we reverse the decision of the Subordinate Judge and allow this appeal with costs. The result is that the suit is dismissed with costs throughout.

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