Decided on March 26,1953

V.S.M. KRISHNA IYER Respondents


Satyanarayana Rao, J. - (1.) This is an appeal by the plaintiff against the decree of the learned Subordinate Judge dismissing her suit, reversing the decree granted in her favour by the learned District Munsif. The suit was for a declaration that the othi deed Ex. A. 5 dated 10-2-1945 (of which Ex.B, 5 is the original) executed by the power-ofattorney agent of Sankararamier defendant 3 in favour of his brother defendant 1 does not affect the plaintiff's rights to the suit properties under the sale deed in her favour and for recovery of possession of the same with profits. The plaint schedule properties, it is not disputed, originally belonged to defendant 3. Under a sale deed dated 17-2-1945 Ex. A. 1 the property was conveyed by defendant 3 to the plaintiff for a sum of Rs. 1350 of which, the consideration was fully paid. In the document, defendant 3 assured the plaintiff that the property was free from encumbrances and that he held the property absolutely. As the plaintiff was obstructed, when she went to take possession of the property by defendant 1 claiming rights under the othi deed of an earlier date, viz, 10-2-1945 she instituted the present suit for the reliefs , stated above. Her ease was that this document, the othi deed, was an ante-dated document brought into existence by the collusion of defendants 1 and 3 and the power-of-attorney agent of the third defendant one Sivasubramania Aiyar. The stamps were purchased at Tinnevelly and though the document had to be registered at a nearer place, in fact it was presented for registration before the District Registrar of Tinnevelly. It was claimed that the recitals regarding the consideration in the othi deed were all false. There was an earlier criminal case against defendants 1 and 3 and also the power-of-attorney agent Sivasubram-ania Ayyar but that case was dismissed. The document was also attacked on the ground that it was not validly attested.
(2.) Defendant 3 died during the pendency of the suit and defendant 1 was the sole contesting defendant. He claimed that the document in his favour, the othi deed, was a valid document & was not antidated. In the trial court several issues were raised of which issues 1 & 3 are the most important issues. Issue 1 covers the question that the deed was ante-dated and issue 3 concerns the question whether the othi deed was properly attested. On the first point, the trial Court found in favour of the plaintiff but the third Issue was disposed of summarily and it was held that the deed was validly attested. In the result, the suit was decreed in favour of the plaintiff. On appeal, this decision was reversed by the learned Subordinate Judge, who held that the othi deed was not ante-dated and that it was valid. He did not, however, deal with the question of the validity of the attestation of the document fully. He made a passing reference to it treating that question as one arising under Section 68, Evidence Act.
(3.) In this appeal by the plaintiff, the finding of fact could not be seriously challenged as there are no grounds for interfering with that finding though a reversing one in second appeal. But the learned Advocate for the appellant pressed the issue relating to the validity of the attestation of the document and that is the only question, which arises for consideration in this second appeal.;

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