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.
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.
I have, in Appeal, nothing to do with the jewels, but only with five 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 five 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 Ramakrishnama and Lakshmidevamma, was their heir, after the death of the latter.
The written statement of the 1st defendant, who is the father and guardian of the 4th defendant, states:
“The case 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 promissory notes at first executed in favour of the 4th defendant. When later on, they were to be executed again, she got the pro-notes 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.
On appeal to the District Judge, on this point he held, although he did not believe, that consideration for the five 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 monies 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.
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 3: “Whether the promissory notes 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.
Secondly, there is a very important statement by the learned District Judge, in paragraph 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 8th October 1921, judgment was pronounced on 9th November, the grounds of appeal were prepared on 17th April 1922, and the Second Appeal was presented on the following day.
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 trust-worthiness of statements, made on one side or the other, by gentleman 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. Seethapathi Rao appeared for the 3rd respondent and Mr. Nagabhushanam, pleader for the 1st respondent in A. S. No. 69 of 1921. 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 been in any way shaken.
There is authority, to which I have been referred, viz., Madhu Sudan Ghowdhri v. Chandrabati Ghowdhrani, and other cases (Sarat Chandra Maiti v. Bibhabati Debi, Mirza Shamsher Bahadur v. Munshi Kunj Behari Lal 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.
It seems to me that the other points, raised by Mr. Somayya, need not be dealt with by me. It is a little anamalous that the complaint should be now, that the finger-print 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 paragraph 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.
I, therefore, think that the Second Appeal must be dismissed with costs.
K. S. D.Appeal dismissed.