AVASARALA SESHAMMA; PRATTI APPALARAJU; INDRAGANTI VENKATACHELLAM; VAKADA PADAYYA Vs. SRI RAVU VENKATAKRISHNARAYANIM GARU; SRI RAVU VENKATA KRISHNA EAYANIM GARU

JUDGEMENT

(1.) This appeal is on behalf of the 15th and 24th defendants; who are in possession of certain lands which form item No. 4 of the plaint schedule. The plaintiff seeks to eject them from the lands on the ground that he is the heir of the last male holder, one Venkayya. The defendants title ultimately rests upon the document Exhibit VI, dated in the year 1876. By that time Venkayya had died, as also his uncle Seetharamayya, who had been, according to the evidence, the manager of the family up to a few years before the deaths of Venkayya. The alienation which is -challenged goes back as far as the year 1876, when by a sale-deed Butchi Venkayamma purported to convey for consideration the property in suit to the plaintiff s father, who had married her daughter. We are, therefore, given the task at this date of enquiry whether that alienation was for consideration and for necessary and proper purposes. I pay no attention to the fact that the plaintiff s father goes into the box and says that it was a gift for which there was no consideration. But as to the question of necessity, the learned Judge has gone carefully into the evidence and decided that the story set up on behalf of the defence is unworthy of belief, The story, shortly was that the money was borrowed for the purpose of discharging a debt of Venkayya, which debt is said to be evidenced by his bond of the year 1875, and that bond bears an endorsement, purporting to be signed by the widow Butchi Venkayamma, that on the 27th April 1876 she sold the suit lands and paid Rs. 500 towards the principal and paid Rs. 350 towards interest. It seems odd that the endorsement of payment is only signed by the debtor or rather by the widow and is not signed by the creditor who had reason pro tanto to acknowledge the payment. That document is challenged by the plaintiff and the learned Subordinate Judge has carefully examined the facts and the evidence relating thereto and has come to the conclusion that the document cannot be genuine. One remarkable circumstance is that according to the evidence of the defence 7th witness, on which most reliance was placed for the defence, Seetharamayya, the uncle of Venkayya, was the managing member of the family, and in order to be consistent with it, he is driven to say that Exhibit XIII was executed three or four years after Seetharamayya s death. On the other hand, the death register, which was produced and the genuineness of which is hardly challenged, shows that Seetharanayya did not die until six months after the date of this document. It is remarkable that the payment of Rs. 850 should have been made by the widow, who is alleged to have been a gosha lady, without the assistance of the plaintiff s father or any other male members of the family. Another improbable circumstance is the long story set up by the defence 7th witness to account for his retention of Exhibit XIII, to the effect that a sum of Rs. 40 still remained unpaid, which Butchi Venkayamma was unable to pay at the time when she paid Rs. 850. At first he stated that she gave a bond for Rs. 40, but when it was pointed out in cross-examination that that was quite inconsistent with the document. Exhibit XIII, being produced from his custody instead of being surrendered to the debtor by way of discharge of the debt in full, he then changed his story and said that Butchi Venkayamma went on promising to pay the sum of Rs. 40 and never paid it. Exhibits XIV and XIV (a), documents of much later date, which recite the transactions between the widow and the 7th witness for the defence, contain no reference whatever by way of recital or otherwise to the sum of Rs. 40, or to the transaction alleged to have been brought about under Exhibit XIII.

(2.) I have no hesitation in saying that I viewed the plaintiff s suit with extreme disfavour and if I could possibly, consistent with the exercise of proper judicial discretion, assist the defendants, I should do so. But we have to administer law and not make it. In this case most of the witnesses are very old people and the opinion as to their veracity and reliability formed by the Subordinate Judge who tried the case himself is to be given greater importance than in ordinary cases. It would require an overwhelming case to induce me to differ in a case with witnesses of this character from the learned Subordinate Judge who heard them.

(3.) I am, therefore, reluctantly compelled to dismiss this case with costs, except with a slight modification as to the payment of costs in the 1st Court, for which we pass a separate order, which is common to all the appeals. Srinivasa Aiyangar, J.