Ramasamy Padayachy vs Thiruvengada Padayachy and Others

Madhavan Nair, J.—Defendant 1 is the appellant. One Subbaraya Padayachi died in 1872. His son Kuppusami died in 1879. After his

death, his mother, Sengamalathammal, inherited the properties, and she executed two documents: Ex. 1, dated 1890 and Ex. 2, dated 1917. In

this second appeal we are concerned only with Ex. 1. This was executed in favour of defendant 1''s father. Two items of consideration are

mentioned in that document which are evidenced by Exs. 1-b and 1-a. The document also recites that a sum of Rs. 212 was borrowed by her

from the mortgagee for the expenses of litigation in connexion with O. Section 48 of 1882 filed by her. The present suit out of which this second

appeal arises has been filed by the plaintiffs, the reversioners, to sot aside this alienation as not binding on them. The question is whether Ex. 1 is

binding on the reversion. The District Munsif found against the plaintiffs on this question, but this finding was set aside by the Subordinate Judge.

Mr. Muthukrishna Ayyar has argued before me that the finding of the Subordinate Judge should not be accepted inasmuch as he does not notice

some important circumstances in connexion with the evidence and has not attached sufficient importance to certain other aspects of the evidence.

Ordinarily, this Court does not interfere on findings of fact in second appeal, but if the learned Judge has omitted to consider evidence which is

important and in considering the evidence which he has examined he has applied erroneous presumptions of law, then, I think, the finding may be

called into question and the lower Court may be asked to submit a fresh finding. The document in this case is 37 years old. Both the Courts have

treated it as an ancient document though the appellate Court does not attach much importance to the ancient character of it having regard to the

other circumstances in the case. It has been attested by plaintiff 3. In considering the question whether the document will be binding on the

reversion, an attestation by one of the reversioners would certainly be a relevant piece of evidence for the Courts to consider. The learned District

Munsif refers to this attestation and draws his own conclusion in support of the binding nature of the document, but there is no reference to this

piece of evidence in the judgment of the Subordinate Judge. This is a grave omission. Of course, it is open to the learned Judge to say for sufficient

reasons, that he is not prepared to attach any value to the evidence afforded by the attestation, but it is necessary that this Court should be satisfied

that the Judge paid attention to this item of evidence. As I have said he does not refer to the attestation of Ex.1 by plaintiff 3 anywhere in his

judgment. Another circumstance of some importance is the fact that in the arrangement Ex. 4, entered into between these plaintiffs, provision has

been made for the payment of the debts of the deceased Subbaraya Padayachi. It is argued on behalf of the appellant that this is a very cogent

piece of evidence from which inference may be drawn to the effect that the debts referred to in Ex. 1 must be binding debts; as otherwise the

reversioners will not make any arrangement for the payment of such debts.

The District Munsif put Ex. 4 in the forefront of the discussion. The Sub-ordinate Judge no doubt has referred to Ex. 4, but the reference to it is

after he has made up his mind and concluded that the document in question is not binding on the reversion. He stated his conclusion in para. 29 and

it is in para. 30 that he refers to Ex. 4. I think in considering the question whether the document is binding or not, Ex. 4 should have been referred

to by him before he arrived at his conclusion on that point. The omission to so deal with Ex. 4 is also, I think, another defect in the finding arrived at

by him.

Then in para. 21 the learned Judge indicates that in his opinion it is the duty of a widow to discharge the debts of her deceased husband from

out of the income of the property. His opinion seems to be that there was income enough from the properties of the deceased Subbaraya which

she might have used for paying off his debts and therefore the document, Ex. 1, is not binding. There is no rule of law that it is the duty of the

widow to discharge the debt of her deceased husband from the income of the property. If authority were needed, reference may be made to the

decision in B. Jagayya v. G. Appala Raju (1913) 18 IC 953. As the learned Judge seems to have been influenced by this legal principle which is

erroneous his conclusion on the main question cannot be accepted as satisfactory. There are various other reasons alleged by the Subordinate

Judge in support of his conclusion. How those reasons will affect the main question when they are taken in connexion with these two or three

points which I have referred to will be a question for consideration by the lower appellate Court to which I propose to send this case for a fresh

finding.

I do not desire to express any opinion on the question argued before me lest it should embarrass the lower appellate Court in arriving at its

conclusion; but I would refer to the use which the learned Judge has made of Ex. A-7 in discrediting Ex. 1-B. Ex. A-7 has been found to be a

forged document by him because Ex. 1-B was produced along with Ex. A-7, so to say in the company of Ex. A-7, it does not, follow that Ex. 1-B

should also be taken to be a forged document. One more fact may be referred to, and it is this. The learned Judge does not independently consider

in any of the paragraphs in his judgment whether Ex. 1-A evidences a debt binding on the reversion.

For the above reasons I set aside the finding of the learned Subordinate Judge on this question and ask the lower Court to submit a fresh finding

on the question after considering the evidence oral and documentary bearing upon the point. The finding is to be submitted within six weeks after

the receipt of this order. Ten days for objections. All the other questions arising in the second appeal are reserved for argument after the receipt of

the finding.

Finding.-- In this case the High Court has called for a fresh finding upon the question ""whether Ex. 1 is binding on the reversion * * *."" On the

whole I am unhesitatingly of opinion that Ex. 1 is wholly binding on the reversion and I find accordingly-(After the return of the finding of the lower

appellate Court upon the point referred by this Court for trial, the Court delivered the following.)

Judgment-- I accept the finding that Ex. 1 is binding on the reversioners. It is argued that the widow had no power to alienate the property

which she had inherited through the son to pay her husband''s debt. This question was not raised in the pleadings or in the issues and it was not

argued in the first Court though the appellate Judge discusses the question. In these circumstances I cannot allow the question to be raised now.

The result is that the second appeal is allowed and the plaintiff''s suit is dismissed with respect to the properties covered by Ex. 1. Each party will

bear its own costs throughout.