Jaganmohan Reddi, J.:— This is a plaintiffs appeal against respondents 1 to 5 arising out of the judgment and decree of the Addl. Subordinate Judge, Eluru. The suit was for ejectment of the respondents from the A and B scheduled properties and to put the appellant in possession of the same, to direct the 1st respondent to pay Rs. 4253-14-9 towards mesne profits and interest on the A scheduled properties and further to direct respondents 2 to 5 to Day the appellant Rs. 163-2-1 as mesne profits and interest on the B schedule properties and further to direct payment of interest on the said amounts and costs of the suit. The following genealogical table will help in the understanding of the contentions raised in this appeal.
2. It will be seen from the above genealogy that Panasayya and Narayanamurthi were brothers and it is admitted that they formed a Hindu joint family owning and enjoying A and B scheduled properties along with other properties. The allegations of the appellant were that Narayanamurthi died undivided with his brother that after his death Panasayya gave the A and B scheduled properties to Bapanamma, widow of Narayanamurthi, for maintenance for life to be reverted after her death to Panasayya or to his legal representative if he should predecease her that Panasayya died in 1891 and Bapanamma died in 1943 that Venkanna was adopted by Panasayya during his life-time which fact was stated in his registered will dated 18-3-1891 by which he appointed his wife Papayi as guardian of the said adopted son, that Venkanna became entitled along with Panasayya to the joint family properties, that after the death of Panasayya, Papayi managed the properties of the adopted son during her lite-time and died in 1940, that Venkanna died issueless leaving his widow Rattamma, that Rattamma adopted the appellant on 9-6-1948 with the consent of one of her husband's nearest reversioners, Penumarti Kamanna, the other nearest reversioner Penumarti Ramanna having improperly and illegally refusing his consent and that on the death of Bapanamma in 1943, Rattamma and the plaintiff-appellant had become entitled to the plaint A and B scheduled properties with a right to recover possession of the same with mesne profits from persons who were in possession of the said properties. It is further alleged that Bapanamma sold the A scheduled properties to Panumarti Sattiraju and his wife, the parents of 1st respondent under a sale deed dated 14-3-1923 alleging that she was entitled to the same as her own properties, that Sattiraju and his wife having died, the 1st respondent is in possession of the same, that further on the same date 14-3-1923, the said Bapanamma sold the B schedule properties to one Nuni Ammanna; that on Ammanna's death his son Sarvarayudu sold the properties Somanchi Laksluninarayana who subsequently sold them to Kanipe Naganna and Mahalaksbmi, both of whom sold said property to Kanipe Anjaneyulu, and that on the death of Anjangyulu the property is in possession of his widow the 2nd respondent and her three sons respondents 3 to 5.
3. The appellant averred that the recitals in the sale deeds by Bapanamma that the properties were her own properties were not true; that Panasayya and his representatives have a vested right in the same and were entitled to them subject to the lira interest of Bapanamma and that the two sale deeds do not bind him and consequently he is entitled to recover the properties with profits and costs.
4. The appellant further denied the allegations made by the 1st respondent, in reply to the notice issued by the appellant's lawyer, that Narayanamurty and Panassayya were divided brothers and on their division the A schedule properties fell to the share of Narayanamurty and on his death they devolved on his widow Bapanamma and averred that in any case he is entitled to both A and B scheduled PROPERTIES as he had become the nearest reversioner to Narayanamurthy by reason of his adoption; and as such the alienations are not binding on him. The several other allegations made in the reply notice by the 1st respondent regarding the previous litigation between the reversioners of Narayanamurty and the 1st respondent's parents, the arbitration enquiry and the settlement of the dispute, as also the allegations relating to adoption, the registered will, were all denied.
5. The 1st respondent in his written statement denied that Panasayya and Narayanamurthy were members of a joint family or that they were in joint possession and enjoyment of the A and B scheduled properties or other properties passed by sumvorship to Panasayya. He asserted that Panasayya and Narayanamurthy divided the properties in their lifetime and were in separate possession and enjoyment; that the plaint A scheduled properties fell to the share of Narayanamurthy and after his death Panasayya was not entitled to them either by survivorship or by inheritance as Narayanamurthy's widow Bapanamma was alive she having been in possession of these properties and entitled to a widow's estate.
6. The allegation that Panasayya gave these properties to Bapanamma for maintenance for life and on her death they reverted to Panasayya were also denied. So also the adoption of Venkanna and the fact of the execution or the validity of the will dated 18-3-1891 were denied. It was further alleged that neither Venkanna, nor his widow Rattamma had any connection with Panasayya's branch; that after the death of Panasayya, Papayi was in possession of Panasayya's properties till 1940 during which time she never set up or asserted any claim to the plaint A and B scheduled properties as the widow of Panasayya; that the adoption by Rattamma of the appellant on 9-6-1948 was invalid, firstly by reason of the consent of one of the reversioners being obtained by illegal consideration, and secondly because there was no giving and taking of the appellant; that as the properties were sold on 14-3-1923 before the adoption of the appellant (which alleged adoption having taken place after the death of Bapanamma) the alienations by Bapanamma were valid and the estate having vested already in a stranger, the appellant cannot question the alienation as he has no locus-standi. The written statement of the 1st respondent further stated certain facts relating to the disputes between the reversioners and the alienees and the suits between them and their settlement etc. Respondents 2 to 5 remained absent and were set ex parte.
7. The trial Court framed 16 issues, but it is not necessary in this appeal to concern ourselves with all of them, except to say that on the main issues the trial Court held that Panasayya and Narayanamurthy were members of an undivided family, that they had become divided during their life-time; that the plaint A and B schedule properties fell to Narayanamurthy's share; that after Narayanamurthy's death the widow succeeded to them; that the allegation that A and B schedule properties were given by Panasayya to Bapanamma after the death of Nanarayanamurthy for her maintenance with a life estate was untrue; that the adoption of Venkanna by Panasayya and the alleged execution of the will by Panasayya dated 18-3-1891 were not proved.
8. With respect to the adoption of the appellant by Rattamma, both the factum and its validity were held in favour of the appellant and that Rattamma did not abandon her right to adopt. On the issue as to whether the plaintiffs rights were barred by adverse possession the finding was against the plaintiff. On the further issues relating to the question whether the suit was maintainable by the plaintiff as he was not in existence at the time of Bapanamma's death and in any view whether he was entitled under law to divest the estate which did not belong to his predecessors, the trial Court held against the plaintiff.
9. In this appeal the learned Advocate-General at the outset conceded that having regard to the case of Srinivas Krishnarao Kango v. Narayan Devji Kango, 1954-1 Mad LJ 630 : (AIR 1954 SC 379) if it is held that Panasayya and Narayanamurthy had become divided and that Narayanamurthy got the A scheduled properties to his share, it would be a case of collateral succession and the appellant would fail, because his adoption was much later after the succession had opened. But if Narayanamurthy died undivided, and the A and B scheduled properties were given to Bapanamma for maintenance for her lite, no question of alienation for necessity would arise, subject, of course, to the proof the Panasayya had adopted Venkanna and that plaintiffs adoption to Venkanna is otherwise valid.
10. The first question, therefore, in this appeal is whether the family of Panasayya and Narayanamurthy was undivided on the death of the latter or whether, as alleged, Narayanamurthy had become separate from Panasayya and A and B schedule properties were allotted to him in that partition. There are no documents directly evidencing partition. From certain documents filed by both the sides inferences are sought to be drawn in favour of the respective contentions of the parties.
11. These documents are undivided single patta of the entire family holding of Ac. 12-46 cents, Ex. A20; diglot Register Ex. A-18; tax receipt book Ex. A22 series, No. 14 Amarakam and cultivation accounts; subsequent conduct of the parties as evidenced by the receipts in the cowle Ex. B-1 dated 22-5-1900; sale deeds Ex. B-2 and Ex. B-44 and in the Kadapa Ex. A-47; the judgments of the trial Court and the High Court in suit by the reversioners against Bapanamma and the alienees; recitals in Ex. B-10, copy of the alleged release deed executed by Bapanamma; Exs. B-11 and B-24 proceedings in arbitration; written statement in O.S No. 331 of 1924, Ex. B-12 and judgment in O.S No. 331 of 1924 and B-13 on the file of the additional District Munsif, Tanuku; Ex. B-14 judgment in A.S No. 17 of 1925 dated 24-10-1925 on the file of the Sub Court, Narasapur, and Ex. B-16, judgment of the High Court in S.A No. 722 of 1926 dated 28-10-1929. Apart from these, both sides have let in oral evidence.
12. The respondents have examined D.Ws 1, 2, 3 and 6, Yedlapalli Dharmayya, Devadi Viraswami, Nune Ravamma and Chunduri Paparayudu respectively, to prove that a partition took place about ten years before the death of Narayanamurthy which would be roughly about 1875. Of these three witnesses viz. D.Ws 1, 2 and 6 are 80 years old while D.W 3 who is the sister of Bapanamma is 60 years old. On the appellant's side, P.Ws 1 to 4, 20 and 21 gave evidence negativing the division. It is further contended by the respondents, a contention which was accepted by the trial Judge, that from the admitted case of both parties, viz. that Bapanamma was in possession of Ac. 6-23 cents which is exactly half the joint family holding, an inference should be drawn that there was a division of the joint family properties.
13. But the appellant maintains that this fact is not conclusive and is consistent with this case of those lands being given to Bapanamma for her maintenance, inasmuch as it is apparent from the evidence of P.Ws 1 to 4, 20 and 21, that these lands were not on the date of Narayanamurthy's death served by canals, but were only rain fed, giving a poor yield and consequently they would be just sufficient for Bapanamma's maintenance. Besides this, it is contended that the family house was not divided which fact negatives the theory of partition. The trial Judge accepted the contention of the appellant that there were no canals and that they were rain fed lands with a poor yield.
14. The appellant's case is that Narayanamurthy died in 1885–1886 of Cholera within a few months after his marriage, at Mandapaka his father-in-law's place to which he had gone Manugudupulu; and that his wife Bapanamma had not then attained puberty and only after Narayanamurty's death she attained that age. It was after she reached that age that her falher Bodapati Mannayya went to Velpur village with P.W 1 Valluri Venkatarayudu, Gunnam Choudri and Penumarti Sitanna to demand for the maintenance of Bapanamma.
15. On the demand being made Panasayya said that he would only give 5 acres of land for her maintenance and not pay any money and on this being agreed to plaint A and B scheduled properties were given to Bapanamma for maintenance. She was to enjoy the properties only for her life-time without any rights therein. Panasayya died 5 or 6 years after this arrangement. The 1st respondent's case as spoken to by the witnesses is that Narayanamurthi lived for 10 years after his marriage and led married life with his wife and died at Mandapaka after some illness, that Panasayya and Narayanamurti divided even before their marriage and that after the death of Narayanamurthy, Bapanamma was obliged to sell the properties to the parents of the 1st respondent and Nune Ammanna to meet the expenses for her maintenance and those incurred for the performance of Vartams for the spiritual benefit of her husband.
16. It is dear beyond doubt that Panasayya died on 22-3-1891 as can be seen from the registration extract, Ex. B-5. If this is taken as an undisputed fact, then according to the evidence, Narayanamurthy died 5 or 6 years prior to this which fixed the date of his death between 1885–1886 and his marriage according to the respondent's evidence would have taken place in 1875–1876 and the partition, therefore, according to the respondent's case, would be prior to 1875. If the plaintiff's case is true, then the marriage took place in 1885–1886, three months after which Narayanamurthi died. Both the parties agree that he died at Mandapaka.
17. (His Lordship after discussion of oral evidence and some documentary evidence proceeded:) Similarly in 1915 when she (Bapanamma) purported to surrender her entire interest in favour of the reversioner by accelerating the interest she made a similar statement in Ex. B-10 which is a relinquishment deed executed on 22-3-1915 in favour of Penumarthi Veeraswami, son of Kamanna. It is contended by the learned Advocate General that this document is not admissible in evidence as there is no proof that the original was lost and consequently secondary evidence of the same cannot be admitted.
18. Even the presumption under Section 90 of the Evidence Act cannot be raised in favour of the admissibility of this document, firstly because the original has not been produced from proper Custody and secondly because first defendant who produced this document is not a party to it nor did he attempt to summon the original. This contention has force as it is well-settled that the language of Sec. 901 of the Evidence Act requires the production of the particular document in regard to which the court is invited to make the statutory presumption.
19. If the document produced is a copy admissible as secondary evidence under Sec. 65 and is produced from proper custody and is 30 years old, then only the signature authenticating the copy may be presumed to be genuine. But production of a copy is not sufficient to raise the presumption of the due execution of the original, vide Basant Singh v. Brijraj Saran Singh, AIR 1935 PC 132, Sitaldas v. Santaram, AIR 1954 SC 606, Hariha Prasad Singh v. Deonarain Prasad, (S) AIR 1956 SC 305. D.W 15 the first defendant does not mention as to what happened to the original of Ex. B-10.
20. It was certainly in existence in 1924 vide. Ex. B-24. D.W 15 merely says that Ex. B-10 is a certified copy of the relinquishment deed by Bapanamma in favour of Veeraswami which was held not to be valid. In the circumstances, it is not possible to rely upon the above document for the recitals therein, since the same is neither admissible nor validly proved.
21. (After discussing some more documentary evidence His Lordship proceeded:) Ex. A-49 is the Diglot register dated 11th July, 1932 in which, also Bapanamma's name has not been shown against S. No. 151. The name of Penumarti Venkanna's wife, Rattamma is shown as the pattadar. The fact that Bapanamma's name is not shown in the Diglot register, Ex. A-49, in 1932 is not of great significance because by that time she had sold the properties and there was litigation between the reversioners and the alienees in whose favour she executed the safe deeds in 1923. Of course, her name is not included even in the Diglot register of 1903, Ex. A-18.
22. The entries in these registers do not seem to record the actual persons in possession of the lands as indeed by 1932 the vendees of Bapanamma were not only in possession but had obtained the same after the ligation between the reversioners of Bapanamma and themselves. If proper enquiries Were made, their names and the names of Bapanamma should have been entered in the register an 1903 and 1932 as they were admittedly in possession of half the survey number. In any case, no conclusion can be drawn against the respondents from this fact alone.
23. Nor can the contention that there was a single undivided patta as evidently Ex. A-20 in favour of Papayi, be availed of by the respondents firstly because we have already stated that the name of Papayi is not found in that document and secondly because the omission of Bapanamma's name from the patta is not conclusive as to the question whether there was partition or not. In our view, the entries in the revenue records, though they may be relevant evidence under Sec. 35 of the Evidence I Act, are not evidence of tide. In Nirman Singh v. Rudra Patrab Narain Singh, 53 Ind App. 220 at p. 227 : 98 Ind Cas 1013 at p. 1017 : (AIR 1926 PC 100 at p. 103), it was observed at page 227 (of Ind App): (at p. 103 of AIR) by the Judicial Committee as follows:
“The perusal by their Lordships of the Judgment of the court of the Judicial Commissioner of Oudh leads their Lordships to think that it is to a great degree based on the mischievous bus persistent error that the proceedings for the mutation of names are judicial proceedings in which the title to the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be pud into occupation of it with the greater confidence that the Revenue for it will be paid.”
24. In Nageshar Baksh Singh v. Mt. Ganesha, 47 Ind App. 57 : (AIR 1920 PC 46), their Lordships approved the pronouncement made by Sir John Edge in Gajendra Singh v. Sardar Singh, ILR 18 All 176, at pp. 179, 180 to the following effect:
“A definition of shares in revenue and village papers affords, by itself, but a very slight indication of an actual separation in a Hindu family, and certainly in no case that has ever come before us could we have regarded such a definition of shares standing alone as sufficient evidence upon which to find, contrary to the presumption in law as to jointure, that the family to which such definition referred had separated,”
25. Similarly, in Durga Prasad v. Ghansham Das, 1948-2 Mad LJ 226 : AIR 1948 PC 210 it was held:
“A definition of shares in khewats or other revenue papers can be regarded as only a very slight indication of title. It is not the function of the officer who compiles such papers to decide questions of title. In particular the nice distinctions which arise upon an issue whether or not there has been a separation are not for their determination.”
26. In our view, therefore, though the entries in the Diglot register may be evidence, they are by themselves not conclusive evidence of the facts which they purport to record. It may turn out that they are in accord with the general bulk of the evidence in the case and they may supply gaps in it. When viewed in the light of other compelling circumstances from which inference contrary to such entries can be drawn, they may become unimportant and their value insignificant. (After discussion of some further evidence the judgment proceeds:)
27. These circumstances taken together with the recitals by Bapanamma in Ex. B-1, the lease deed, made as long ago as 1900 and the fact that there was a division of exactly half the land in each survey number, and the fact that Bapanamma was paying taxes for her half share and Papayi for the other half, clearly establish the fact that there must have been a division in the life-time of Narayanamurthy between himself and his brother Panasayya and that Bapanamma came into possession of the said property as his widow. She had therefore a widow's estate therein. We have already held that the agreement under which Panasayya gave life estate to Bapanamma with a reverter has not been proved by any credible evidence and the circumstance that Bapanamma was paying taxes for half the land in her possession, being against such agreement, our finding on the evidence is that there was a division between Narayanamurthy and Panasayya.
28. Even otherwise, Shri Ramachandra Rao for the respondents contends that if the maintenance agreement and partition are not proved on the basis that the family was undivided on the death of Narayanamurthy, the continuous possession of a portion of the property of the joint family by Bapanamma for over a period of twelve years and upwards as of right would bar the claim of other members of the joint family. It is true that on the death of an undivided member of a joint family, the family property passes by survivorship, the widow being entitled only to a maintenance and no more.
29. If in these circumstances the widow gets into possession of the joint family property, unless it be in lieu of her maintenance under an agreement with the members of the family her possession would be adverse to the other members of the family. In this case, even if division is not proved, there being no acceptable evidence, as already stated, of a maintenance arrangement as alleged by the plaintiff, the widow's possession of A and B schedule property even during the life-time of Panasayya and her continuance of the same till 1923 would be adverse to the members of the joint family. Looking at it either way, the appellant cannot succeed and his appeal will fail on this ground as well as on the ground that his adoption being much later after the opening of collateral succession, he cannot divest an already vested right.
30. It is now well-settled that the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alienations made prior to the date of adoption are binding on him, if they were for purposes binding on the estate. Thus, alienees from limited owners, whether, they be widows or coparceners in a joint family, are amply protected.
31. Their Lordships of the Supreme Court in (1954) 1 Mad LJ 630 at p. 642 : (AIR 1954 SC 379 at pp. 387-388), after considering the position stated in the several Privy Council Judgments regarding the effect of an adoption by the doctrino of relation back on a collateral succession which had been prior to the date of adoption, took the view that in deciding that an adopted son is entitled to divest the estate of a collateral which had devolved by inheritance prior to his adoption, Anant Bhikappa v. Shankar Ramachandra, (1943) 2 Mad LJ 599 : (AIR 1943 PC 196), went far beyond what had been previously understood to be the law. Venkatarama Ayyar, J., delivering the judgment of the Supreme Court said:—
“It is not in consonance with the principle well established in Indian jurisprudence that an inheritance could not be in abeyance, and that the relation back of the right of an adopted son is only quoad the estate of the adoptive father. Moreover, the law as laid down therein leads to results which are highly inconvenient. When an adoption is made by a widow of either a coparcener or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alienations made prior to the date of adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees from limited owners, whether they be widows of coparceners in a joint family, are amply protected……………. And if the adoption takes place long after the succession to the collateral had opened — in this case it was 41 years thereafter — and the property might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations. We must hesitate to subscribe to a view of the law which leads to consequences so inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal fictions should not be extended so as to lead to unjust results. We are of the opinion that the decision in 1943-2 Mad LJ 599 : (AIR 1943 SC 196), in so far as it relates to properties inherited from collaterals is not sound, and that in respect of such properties the adopted son can lay no claim on the ground of relation back.”
32. In this case, the learned Subordinate Judge had held that the sale by the widow was for necessity. This is not seriously challenged before us. There is ample evidence to show that the sale by the widow was for necessity.
33. *“In this view the appeal could be disposed of on the question already determined. But having regard to the arguments addressed relating to the adoption it would be appropriate also to give a finding thereon.”
34. The adoption of Venkanna as well as the adoption of the plaintiff have been challenged. The trial Court held that Venkanna's adoption was not proved and that though the factum of the plaintiffs adoption was proved, the authority for the adoption, by reason of the consent of Kamanna not being in writing and not being duly stamped and registered it was invalid.
35. With respect to the first adoption, the case of the plaintiff was that Panasayya during his lifetime adopted Venkanna, son of Bodapati Appayya, who was then about 5 years old. The case of the first defendant was that no such adoption took place, that it was a fabrication by Patta Swami, the brother-in-law of Panasayya, who set it up to deprive the reversioners of their claims. The oral evidence relating to adoption is that of P.Ws 2, 3, 4, 14, 20 and 22 with most of which we have already dealt with in relation to the question whether the family was joint or divided the evidence does not carry much conviction. (After discussion of evidence His Lordship proceeded:—)
36. The circumstances which have been urged against the adoption are (a) the young age of Panasayya on his death from which it could be concluded that he would have thought of an adoption; (b) the adopted boy was the only son of Devamma, her husband having died sometime previously; (c) the will purported to have been executed by Panasayya apart from its not having been proved by the production of the original, does not indicate why it was necessary for him to have executed the will.
37. It is contended that if the adoption of Venkanna was made by Panasayya sometime before his death and the execution of the will, the mother-would have become the natural guardian of the boy after the death of Panasayya. Further there was no necessity for Panasayya to make a recital in the-will that he made him entitled to his assets and liabilities after his life-time: (d) In the revenue enquiry held in 1903, this will was not put forward, nor is the name of Venkanna shown in the diglot register, Ex. A-18 nor does his name appear in the rough patta, Ex. A-20 issued by the Deputy Commissioner.
38. Revenue and Settlement in 1900. With respect to the proof of the contents of the will, it is alleged that there is no proof of the loss of the original, nor has any attempt been made to obtain the same from the persons in possession of the same, and consequently, secondary evidence by the production of a certified copy of the will is not admissible under Sec. 65 of the Indian Evidence Act. Even if secondary evidence is admissible, it does not prove due execution of the will nor that the petitioner had sound disposing mind.
39. It is true, as had already been seen, P.W 14 admits that the original was with her mother-in-law and that her mother-in-law had told her that Viraswamy had taken it and yet she does not take any steps to recover it nor does the plaintiff make any attempt to get the same summoned from Veeraswami or his sons. At one place she says her father told her that it was taken away by Veeraswarny and at another place she says her mother-in-law, told her several times that Veeraswamy took it.
40. Further, according to her, there has been litigation between her and her mother-in-law and between her and Veeraswamy but there is no reason for the plaintiff not getting the same summoned, and if it was not produced after taking such steps secondary evidence could have been admissible. P.W 4 who is the sister of plaintiffs natural father admits that the original was with Panasayya's wife and son and now Rattamma (P.W 14) and that there are no disputes between plaintiff and Rattamma.
41. The trial Court held the document Ex. A-17 to be admissible in evidence because, according to it, Rattamma had explained the reason for her in ability to produce the original and consequently it is submitted that once the lower Court has exercised its discretion in admitting a document the appellate Court is not entitled to interfere with that discretion, unless a clear case of miscarriage of justice is made out. In support of that proposition several decisions have been cited. In Haripriya Debi v. Rukmini Debi, ILR 19 Cal 438 at p. 442 (PC) their Lordships of the Privy Council upheld the trial Court's refusal to accept the secondary evidence. At page 442 of the report, Lord Hobhouse observes as follows:—
“The evidence to prove a sufficient search has been subjected to a very careful and minute Criticism at the Bar. Their Lordships will make only one remark on it. The point is one which is proper to be decided by the Judge of First Instance, and is treated as depending very much on his discretion. His Conclusion should not be overruled, except in a very clear case of miscarriage.”
42. Following this ruling, Sulaiman, J., in Gaya Prasad v. Jaswant Rai, AIR 1930 All 550 and Shadi Lal, C.J and Fforde, J. in Chuha Mal v. Rahim Bakhsh, AIR 1924 Lah 303 took a similar view, namely, that the Question whether the non-production of the original is due to any other sufficient reason not arising from his own default or neglect is one of fact, should depend mainly on the discretion of the Court in the later case, the trial Court had admitted a document, but the appellate Court reversed it. The High Court held that the trial Court's discretion ought not to be interfered with. It is unnecessary to discuss any of the other decisions cited before us.
43. Be that as it may, the proposition is well settled, but in this case Rattamma gave no explanation in her evidence for her not taking steps to recover the original or for the omission of the plaintiff not summoning it. On the other hand, plaintiffs own witness P.W 4 says that it is with Rattamma. In these circumstances it cannot be said that within the meaning of Sec. 65(c) the original is lost or destroyed, that the party offering evidence of its contents Cannot for any other reason not arising from his own default or neglect produce it within a reasonable time.
44. It would be dear miscarriage of justice to admit secondary evidence in these circumstances when allegations of fabrication are made and the trial Court also entertained great doubts about its execution. Even for a moment, if it is assumed that secondary evidence is admissible, it is contended that the presumption under Sec. 90 of the Indian Evidence Act will not arise in the case of a certified copy and the execution of the original must not only be proved but that it was executed when the testator was in a sound and disposing state; of mind has also to be established.
45. We have already referred to the judgments of the Privy Council and of the Supreme Court which have taken the view that the presumption under-Sec. 90 of the Indian Evidence Act will not apply where the original is not produced. Whatever may have been the views expressed by several High Courts in India prior to these decisions, the matter is now settled beyond doubt. In this case, all the attestors and the scribe of the document (original of Ex. A-17) are dead and P.W 4 merely stated that she was present at the time of its registration. She had not attested the will. In these circumstances there is no proof of the execution, much less, duo execution of the will.
46. The learned Advocate General tries to distinguish Venkataratnam v. Sitaramayya, 1950-1 Mad LJ 720 : (AIR 1950 Mad 634) and AIR 1954 SC 606 on the ground that in the former case Subba Rao and Panchapakesa Aiyar, JJ. did not deal with a case of a certified copy of a registered document but were only concerned with the presumption relating to a certified copy of document which was-not registered, whereas in the latter case it did not appear whether the document was or was not a certified copy of a registered document. His general proposition is that while Section 90 of the Indian Evidence Act will apply to registered and unregistered originals, it will only apply to a certified copy of a registered original with the registration endorsements thereon and not to a copy of an unregistered document.
47. He seeks support for this proposition from the decision in Pandappa v. Shivahngappa, AIR 1946 Bombay 193. In this case Lokur, J., sitting Singly while holding that presumption under Sec. 90 does, not apply to a certified copy allowed to be produced under Sec. 65, was of the view, relying upon the decision in Vishwanath v. Rahibai Ramji, ILR 55 Bom 103 : (AIR 1931 Bom 105) that the proof of the execution of the document is to the found in the registration endorsement of the certified copy itself in which it is shown that the executant, having been duly identified before the Sub-Registrar, had acknowledged the execution thereof. He observed at page 197 thus:—
“It is true that the decision of the Privy Council is subsequent to the case in ILR 55 Bom 103 : (AIR 1931 Bom 105). But there is no conflict between them. The document which the Privy Council was dealing with had not been registered, and all that the ruling lays down is that there can be no presumption under Sec, 90, Evidence Act, when only a certified copy of a document is produced and therefore, the execution of the original has to be proved, whereas the ruling in ILR 55 Bom 103 : (AIR 1931 Bom 105), lays down that such proof can be afforded by the Sub-Registrar's endorsement appearing on the certified copy.”
48. We may here observe that though in both the Supreme Court cases, certified copies of the originals, which were not registered were produced, in so lar as the ruling of the Madras High Court is concerned, the contention of the learned Advocate General is not supported because there the registration copy of the original which was lost was obtained as early as 1905 was produced and marked by consent of the parties.
49. The lower Court held that the execution of the original and its genuineness were proved by the production of that ancient registration copy of the will as well as by the evidence of one of the witnesses that his father had gone to attest the original. In spite of this, following the Privy Council decision in 69 Mad LJ 225 : (AIR 1935 PC 132) the Madras High Court held that the view expressed by the Full Bench of that Court in Subrahmanya Somayajulu v. Seethayya, ILR 46 Mad 92 : (AIR 1923 Mad 1) (FB) was no longer good law, and the matter was remanded for the proof of the execution of the original.
50. In that case, however, the question whether the registration endorsement made by the Registrar itself would be proof of the execution of the document was not raised nor determined, For that reason, it is contended that, having regard to Sections 34, 35 and 60(1) and (2) of the Indian Registration Act a presumption would arise that the Registrar had registered the document executed by the, person who purports to execute the same.
51. Under Sec. 34 of the aforementioned Act, the registering officer has a duty to enquire whether or not such document was executed by the persons by whom it purports to have been executed and to satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document. Under Sec. 35(2), the registering officer may, in order to satisfy himself that the persons appearing Before him are the persons they represent themselves to be, or for any other purpose contemplated by the said Act examine any other present in his office. While Sec. 58 enacts:—
“On every document admitted to registration other than a copy of a decree or order, or a copy sent to a registering officer under Sec. 89, there shall be endorsed from time to time the following particulars, namely:—
(a) The signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such, representative, assign or agent;
(b) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and
(c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration in whole or in part, made in his presence in reference to such execution.”
52. Section 59 provides:—
“The registering officer shall affix the date and his signature to all endorsements made under sections 52 and 58, relating to the same document and made in his presence on the same day.”
53. Thereafter, Sec. 60 provides that after the provisions of Secs. 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer is enjoined to endorse thereon a certificate containing the words “registered”, together with the number and page of the book in which the document has been copied. After the same has been signed, sealed and dated by the registering officer, the certificate shall then be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act and that the facts mentioned in the endorsements referred to in Sec. 59 have occurred as therein mentioned.
54. It is sought to be contended that these provisions of the Registration Act provide that the facts mentioned in the endorsement by the Registrar are proved by the endorsements themselves, namely, that the executant was the person who executed the document, having been duly identified before the registering officer who has satisfied himself as to the identity of the said person, that he had executed the same and has admitted it before the registrar.
55. The proposition so put is wide and would give room for fraud and fabrication. The effect of the registration is not to prove execution as provided by Sec. 67 of the Evidence Act but only to prove an admission by the executant to the registration in solemn circumstances. The certificate of the registering officer is admissible not to prove the execution of the deed but merely to prove the admission of execution, the effect of such admission being in each case a separate question.
56. It may further be stated that documents which require by law to be attested and those that do not so require are now after the decision of the Privy Council in Gopal Das v. Sri Thakurji, AIR 1943 PC 83 clearly distinguishable in that a registration certificate in the case of documents which are not required by law to be attested, the certificate of registration (sic) is sure evidence under Sec. 60(2) of the execution against the party making the admission. It was observed at page 87 by their Lordships in that case as follows:—
“The registrar's endorsements show (see sub-sec. (2) of Section 60 of the Registration Act, 1877) that in 1881 a person claiming to be this Parshotam Das, and to have become son of Harish Chandra by ad option made by his widow Manki Bahu, presented the receipt for registration and admitted execution. He was identified by two persona — one Sheo Prasad and the other Girja Prasad, who was the scribe of the document and was known to the Registrar. What remains to be shown is that the person admitting execution before the Registrar, was this Parshotam Das and no impostor. The question is one of fact except in so far as there was as matter of law a presumption that the registration proceedings were regular and honestly carried out: Gangamoyi Debi v. Troihickhya Nath, 38 Ind App 60 at p. 65 (PC), Ehtishan Ali v. Jamna Prasad, 48 Ind App 3653, at p. 372: (AIR 1922 PC 56 at p. 58). It seems clear that any objections to the sufficiency of the proof upon this point would have been idle, the circumstances being such that the evidence of due registration is itself some evidence of execution as against the plaintiffs. Wills and Documents which are required by law to be attested raise other questions) but this receipt was not in that class.”
57. Even here it is evident from the above observations, that there must be some evidence to show that the person admitting execution is the same person and not an impostor. In so far as documents requireing attestation are concerned, there has been a conflict of authority between the Madras and the Allahabad view that the Privy Council has left the matter open even though both the views were pressed before their Lordships in Surendra Bahadur v. Behari Singh, AIR 1939 PC 117.
58. According to Veerappa Chettiar v. Subrahmanya Ayyar, ILR 52 Mad 123 : (AIR 1929 Mad 1) (FB) the signatures of the registering officer and of the identifying witnesses affixed to the registration endorsement under Secs. 58 and 59 of the Registration Act were held to be sufficient attestation within the meaning of Sec. 59 of the Transfer of Property Act and its subsequent Amending Acts.
59. In Lachman Singh v. Surendra Bahadur Singha, ILR 54 All 1051 : (AIR 1932 All 527), the Full Bench of the Allahabad High Court declined to follow the Full Bench of the Madras High Court in ILR 52 Mad 123 : (AIR 1929 Mad 1) holding that the signatures of the registering Officer and identifying witnesses are made ALIO INTUITU to satisfy the requirements of the Registration Act and cannot therefore be invoked for another purpose namely attestation under the Transfer of Property Act though in fact all the conditions laid down by the latter Act are fulfilled.
60. The Privy Council distinguished the Madras case on the facts on the ground that there was not in that case, as there was in the Madras case, a finding of fact as to what occurred at the time of registration. In the Privy Council case, there was no evidence except that which appears on the mortgage bond and the endorsement of registration thereon. That endorsement shows that there appear the signatures and thumb impressions of Himmat Singh and Mulu Singh, and the signature of Genda Lal and the signature and thumb impression of Narayan Singh as witnesses.
61. Then there is a further endorsement that Mt. Jamna Kunwar admitted the completion and execution of the document in a loud voice from behind the door of the room in which she was; it was then stated that she was identified by Narain Singh and by Ajodhia Singh. Both these witnesses apparently went behind the purdah to identify the lady. Then appears the signature of the Sub-Registrar. These witnesses were identified by Genda Lal who was said to be known to the Sub-Registrar.
62. The endorsement then records that the mark and thumb impression of Mt. Jamna were obtained in the presence of the identifying witnesses after she had extended her hand beyond the purdah; end the signatures and thumb impressions of Ajodhia Singh and Narain Singh and the signature of Genda Lal are attached as witnesses. At page 121 their Lordships observed as follows:—
“Their Lordships are prepared to assume that the proceedings in connection with the registration were rightly and duly conducted by the Sub-Registrar; but even upon that assumption there is no evidence that he affixed his signature to the endorsement in the presence of Mt. Jamna Kunwar. It is provided by Section 59 of the Registration Act, that he must affix his signature “on the same day” and in the absence of any evidence as to the time when he signed, it Cannot be assumed that he signed the endorsement in the presence of Mt. Jamna Kunwar. Further there is no evidence which would entitle their Lordships to hold that the witnesses who identified her signed the endorsement in Mt. Jamna Kunwar's presence, or that they heard her admit the completion and execution of the mortgage deed.
Section 60(2), Registration Act of 1908 provides that the certificate of the registering officer shall be signed, sealed and dated by the registering officer and shall then be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act and that the facts mentioned in the endorsement referred to in Sec. 59, have occurred as therein mentioned. But the particulars which are to be endorsed on documents which are admitted for registration, under Sec. 58, do not include statements as to the abovementioned facts, which in their Lordships' opinon, are necessary for proving the due attestation of the mortgage deed according to the provisions of the Transfer of Property Act. Sections 58, 59 and 60, Registration Act, therefore, are of no avail to the appellants in this respect.”
63. In this view, therefore, the nature of the endorsement made by the registering authority will be significant. From Ex. A-17 it would appear that the will was produced for registration by the executant, three days after its alleged execution. The Sub-Registrar has merely made the following endorsement:—
Presented on 21st March, 1891, at 7 a.m, (morning) by the individuals signed hereunder at the house of Patta Swamy of Velpur village, within the registration sub-district of Tanuku.
Mark of Penumarthi Panasayya
21st March, 1891.
Sd/- (in English) A. Rama-Chandra Rao, Sub-Registrar.
Execution admitted by the following signatories. Mark of Penumerfchi Panasayya, son of Veerayya Kammr, Cultivation, resident of Velpur,
Execution attested by:
(Sd. in Telugu) Llngala Venkataramayya, son of Bulll Venkayya, Brahmin, Inamdar, Velpur.
(Sd. in Telugu) Divvela Swamy son of Narasimhulu, Vysya, trade.
21st March, 1891,
(Sd. In English) A. Ramachandra Rao, Sub-Registrar.
Registered in Book-3 Volume 1, at page 258 as No. 4.
21st March, 1891.
Pees paid: Rupees Fourteen Sd. (In English) A. Ramachandra Rao, Sub-Registrar.”
64. From this endorsement it does not appear that the Registrar either knew Panasayya or the attesting witnesses nor that the attestor attested the document at the time of the execution. There is no evidence whatsoever to show that the person presenting the will to the Registrar was Panasayya or an imposter. P.W 4 who did not say a word about this will or its execution when she was recalled on 17-9-1952 to give evidence of the execution. Even according to her, she is not an attestor.
65. She says that one Lingala Venkataramayya wrote the will and Penumerti Subbarayudu, Gandi China Narasayya and some others attested and that it was registered two days later. It is not difficult for a person primmed to speak in favour of and who has agreed to oblige the plaintiff to depose the circumstances appearing from the document itself. It may also be observed that the persons who attested the execution are not the same as those who are said to have attested the registration of the will. In these circumstances, we cannot hold that the execution of the will is proved by the production of Ex. A-17, Nor does it appear as to what state on health Panasayya was at the time of the registration.
66. The other circumstances urged against the probability of an adoption having taken place have also force, Panasayya was between 30 and 40 years of age as appears from the death extract, Ex. B-5 and though in this will it is stated that he was ailing for some time, according to P.W 4, he had fever for only five or six days before his death. It is, therefore, inconceivable that a young man in the prime of youth when he could still beget sons would, without any long illness of a nature which gave no hope of survival, would think of adopting a son, nor is it probable that Devamma would give her only son who was barely two years old.
67. If in fact an adoption was made with due ceremony as alleged, it is not natural for Panasayya to have executed an adoption deed and not have recourse to a recital in the will for the execution on which there was really no necessity. If the property was joint family property, it is clear that no disposition could be made of it by will, the adopted son would by operation of law having already become a coparcener, nor was it necessary for Papayi to be made a guardian as she would as the adopted mother become the guardian of the minor.
68. All these circumstances are so compelling that in spite of subsequent description of Rattamma as Penumerthi Rattamma, wife of Penumerthy Venkanna nearly thirty years after the death of Panasayya, the adoption of Venkanna is not established. For these reasons, we agree with the finding of the learned Subordinate Judge that the adoption of Venkanna has not been proved.
69. With respect to the plaintiff's adoption, it has not been seriously challenged by the respondents. The factum of adoption, as we have already stated, has been held proved by the trial Court. Ex. A-1 is the adoption deed dated 9th June, 1948. The only question is with respect to authority. Ot the two surviving reversioners, one had given consent and the other had withheld it. Exs. A-12 and A-7 are the registered notices issued by Penumarthi Rattamma to Penumarthi Ramanna and to Penumarthi Kamanna.
70. In Ex. A-12 Rattamma stated that her husba died about forty years ago without giving her power to adopt and that she wanted to adopt a son for perpetuating her husband's lineage. By Ex. A-14 Ramanna refused consent on the ground that though her husband died forty years ago her attempt to adopt now to perpetuate the soul and lineage of her husband was surprising and that itself would show her evil intention. He thereafter referred to the proposed marriage of Rattamma's brother's daughter, Missamma known as Venkayamma and to giving her certain properties etc. He further stated thus:—
“It is learnt that as my senior paternal uncle's son Kamanna had no land whatever, he has agreed to this arrangement for consideration for this personal benefit.”
71. On the strength of the assertion that Kamanna's consent was purchased by a promise to give him land, it is contended that his consent is vitiated. It is established that the motive of a widow in making adoption is not material. Even though she was actuated, not by a sense of religions duty, but by an improper motive, namely, to defeat her co-widow, that will not vitiate the authority to adopt received from the nearest SAPINDA. This is so held in a Full Bench case of the Madras High Court in Kanakaratnam v. Narasimha Rao, 1941-2 Mad LJ 803 : (AIR 1941 Mad 937) (FB). The Court will merely go into the reasons for refusal of the consent but not in the case where consent is given, unless there is an allegation that Consent was obtained by fraud, coercion or unduo influence. In this view, the consent of the reversioner, Kamanna, is not vitiated and consequently the adoption of the plaintiff is held valid. In the result, as we have come to the conclusion that there had been a division in the family of Panasayya and Narayanamurthy and that there was no agreement as alleged by the plaintiff that the suit schedule properties were given to Bapanamma towards maintenance, as also that the adoption of Venkanna has not been proved, the appeal fails and is accordingly dismissed with costs.
GD/F.
72. Appeal dismissed.
Comments