Andhra HC (Pre-Telangana)
K. Venkat Reddy (Died) By Lrs. vs Kunuthuru Akkamma And Anr. on 22 December, 2005
Equivalent citations: 2006(2)ALD398
JUDGMENT S. Ananda Reddy, J.
1. The defendant is the appellant, and the appeal is directed against the order of the Additional District Judge, Anantapur in A.S.No.75 of 1988, dated 3-11-1995 under which the judgment and decree passed by the Principal Subordinate Judge, Anantapur in O.S.No.141 of 1978, dated 29-2-1988 was confirmed.
2. In the second appeal the following substantial questions are raised for consideration of this Court :
(1) Whether the Courts below acted legally in holding that the relinquishment deed was acted upon even though the subsequent deed i.e., Ex.B.l partition deed was executed between the parties ?
(2) Whether the Courts below acted legally in drawing a presumption that the document is a genuine document on the ground that the same is 30 years old ?
(3) Whether the reasoning of the Courts below for holding that the document Ex.A-1 is true, valid and binding on the appellant is legally sustainable ?
3. The respondent/plaintiff filed the above suit for declaration of title and for permanent injunction restraining the defendant and his men from interfering with her possession and enjoyment of the suit schedule properties. As per the plaint averments, the plaintiffs husband-Pedda Venkata Reddy and Sadasiva Reddy are brothers and are sons of one Chinna Venkata Reddy, and they were divided. Sadasiva Reddy executed a relinquishment deed - Ex.A.l, dated 25-7-1939 relinquishing his interest in the joint family properties after receiving a sum of Rs.200/- as consideration and left the village Guttakindipalli and settled down at Ravulacheruvu. The said Sadasiva Reddy died about 14 years back leaving behind his son the defendant. The plaintiff's husband and the defendant gave separate declarations under the provisions of the A.P. Land Reforms Act. The defendant has shown in his declaration only the land of Ravulacheruvu and not the suit schedule properties; whereas the plaintiff's husband has shown the suit schedule properties in his declaration. It was stated that the plaintiff's husband was in exclusive possession and enjoyment of the suit schedule properties from the date of relinquishment deed and on his death in 1976, the plaintiff became entitled to the suit schedule properties as successor and has been in possession and enjoyment of the same by paying land revenue. The defendant is a powerful and influential person and trying to interfere with peaceful possession of the plaintiff over the suit schedule properties.
4. The defendant filed his written statement admitting the relationship between the parties, but denying the execution of the alleged relinquishment deed. It was stated that the plaintiff's husband was very intelligent scheming and worldly wise-man and was dominating the defendant. The defendant was living both at Guttakindipalli and Ravulacheruvu and he was blindly and faithfully obeying the dictates of his uncle. The defendant denied the allegation that he filed a separate declaration before the Land Ceiling Authorities. It was stated that the plaintiff's husband used to take his signatures on various papers and he might have filed separate declaration without the knowledge of the defendant. The defendant submits that he was informed by the plaintiffs husband that in the interest of the family it is better to claim property at two places separately, so that they will not loose the property to the Government, and he was asked to say so if any occasion arises before the authorities. The defendant denied that the suit schedule property exclusively belongs to the plaintiff's husband.
5. During the course of trial, the defendant filed LA. No.263 of 1987 on 8-9-1987 to amend the written statement by filing additional written statement stating that the relinquishment deed is neither true nor genuine. In any event, it does not operate to extinguish the rights of the defendants, who was admittedly a minor coparcener and it ensures to the benefit of the defendant also. It was further stated that between Pedda Venkata Reddy and Sadasiva Reddy on one hand, and China Venkata Reddy, their cousin, on the other hand, a partition had taken place under the registered partition deed, dated 19-3-1958, marked as Ex.B-1, which goes to show that the suit schedule properties are the joint properties of both the brothers. The said partition deed also shows that the alleged relinquishment deed has not been acted upon and the rights of the defendant or his father are not affected in any manner.
6. The trial Court framed appropriate issues and additional issues, as a result of the amendment of the written statement. On behalf of the plaintiff, she herself was examined as PW-1, and got examined PW-2; and Exhibits A-l to A-14 were marked. While on behalf of the defendant, he himself examined as DW-1, and examined two other witnesses as DW-2 and DW-3; and got marked Exhibits B-l to B-3. Apart from that, Ex.X-1 was marked by the Court, which is a sale deed executed in favour of DW-3.
7. The trial Court after considering the entire evidence decided the issue in favour of the plaintiff that the relinquishment deed executed by the father of the defendant was acted upon. In view of the material evidence available on record, such as Ex.A-8 declaration filed by the defendant and Ex. A-14 statement of the defendant recorded by the authorities under the Land Reforms Act, where the defendant has categorically stated that he did not own any other lands except the lands, which he had declared under Ex.A-8 declaration. The Trial Court also referred to Exs.A2 to A4, which are the Extracts of No. 10(1) Accounts, showing that the lands were being enjoyed by the plaintiff and her husband, and Ex.A-5 certified copy of No. 13 Account. The husband of the plaintiff has also filed declaration under Ex.A-6 declaring the lands of the family situated at Guttakindapalli with reference to which an order was also passed by the Land Reforms Tribunal, under Ex.A-7. The plaintiff also filed Ex.A-10 mortgage deed, dated 30-9-1974 showing that her husband mortgaged part of the suit schedule property in favour of Mamillapalli Co- opetative Society for raising a loan. While, on the issue of Ex.B-1, partition deed dated 19-3-1958, it was held against the defendant, who filled to prove the same as he did not examine any person connected with the said document. Similarly, the trial Court rejected the claim that Exs.B-2 and B-3 sale deeds under which some of the items of the suit schedule properties were disposed of, where the defendant was also joined as one of the executant of the sale deed along with the plaintiff's husband, proves his interest in the suit properties, on the ground that the purchasers under the said document were not examined to explain the circumstances under which the defendant has joined as one of the executant of the sale deed. In effect, the trial Court accepted the claim of the plaintiff relying upon the entire material on record, negativing the claim of the defendant and accordingly decreed the suit.
8. Aggrieved by the same, the defendant preferred an appeal before the first appellate Court. The appellate Court also on reconsideration and re-appreciation of the entire material on record agreed with the findings recorded by the trial Court and dismissed the appeal filed by the defendant. Aggrieved by that, the defendant has come up with the present second appeal.
9. The learned Counsel for the appellant relying upon the grounds of appeal contended that though Ex.A1 is a document of more than 30 years old and even though a presumption may arise as to its execution in terms of Section 90 of the Evidence Act, but insofar as its contents are concerned no such presumption is available as the plaintiff did not adduce any evidence to prove the contents of the said document. Therefore, the Courts below have committed grave error in accepting the said document. The learned Counsel also contended that whether the presumption contemplated under Section 90 of the Evidence Act in respect of the document of more than 30 years old could be extended as to the genuineness of the contents of the document. The learned Counsel also contended that the reasons assigned by the Courts below for accepting Ex.Al are illegal and unsustainable the learned Counsel also contended that the execution of a partition deed, Ex.B-1 subsequent to Ex. A-l clearly goes to show that Ex.A-1 was not acted upon. Had it been acted upon there was no occasion for showing the name of the defendant's father as one of the shareholders in he partition deed that was affected in the year 1958 under Ex.B-1, that too long after Ex.A-1. The learned Counsel also contended that the sale deeds were executed in respect of some of the items of the joint family under Exs.B-2 and B-3 during the year 1966-67 where the defendant also joined as one of the executant for affecting the sale of the items sold under those documents. If the share of the defendant's father had already relinquished under Ex.A-1, there was no need for the defendant to join as one of the vendors under Exs.B2 and B3. The execution of the sale deeds by the defendant as one of the parties clearly goes to show that the suit schedule properties were treated as joint family properties of Pedda Venkata Reddy and Sadasiva Reddy and after the death of Sadasiva Reddy, Pedda Venkata Reddy and the defendant. Therefore, it was contended by the learned Counsel that the view taken by the Courts below is illegal and unsustainable. The learned Counsel also contended that the defendant categorically denied that they have filed any declaration under the Land Reforms Act as well as giving of any statement before the Land Reforms Authority. In the light of the said denial of such acts by the defendant there is no justification for the Courts below to rely upon such evidence to decide the case against the defendant.
Alternatively, the learned Counsel also contended that the defendant was also having a share in the joint family property and the execution of Ex.A-l, even if it is true, is not valid and binding on the defendant to the extent of his share being a coparcener of the joint family.
10. The learned Counsel relied upon the following decisions in support of his contentions :
Khetra Mohan v. Bhairab Chandra AIR 1972 Cal. 229; Chandulal v. Bai Kashi AIR 1939 Bom. 59; Bhagirathmal Kanodia v. Bibhuti Bhusan AIR 1942 Cal. 309; Ghurahu v. Sheo Ratan ; Bai Sakinabai v. Gulam Rasul and Gangamma v. Shivalingaiah (2005) 9 SCC 359.
11. The learned Counsel for the respondent/plaintiff, on the other hand, supported the judgment and decree passed by the appellate Court confirming the judgment and decree of the Trial Court. According to the learned Counsel, if the defendant has got a right in the joint family property and if he wants to protect his interest from Ex.A-1 relinquishment deed executed by his father, he should adduce evidence showing that he was born by the date of Ex.A-1. In addition he is expected to file a suit for declaration that his share cannot be relinquished by his father under Ex.A-1, as is contemplated under Section 31 of the Specific Relief Act. It is contended by the learned Counsel that the defendant was expected to initiate such proceedings at least within a period of three years from the date of attaining majority. But no such steps have been taken till date. Further, there is no evidence on record that he was bom by the date of Ex.Al. In the absence of any such evidence and in the absence of any such contention having been advanced before the Courts below it is not open to the defendant to raise such issue for the first time, without even raising such a question in the grounds of appeal. The learned Counsel also contended that admittedly the father of the defendant left the family village Guttakindipalli and settled down in Ravulacheruvu, where his widowed sister was living, and in fact, the defendant's father was managing the properties of his sister, and in fact, as a result of which the widowed sister has executed a gift bequeathing her properties to the defendant. The learned Counsel also contended that after relinquishing the interest in the joint family properties of Sadasiva Reddy after receiving a sum of Rs.200/- towards consideration, he never exercised his right over the family properties. It was further contended that the plaintiff's husband and after that she has been enjoying the properties, including the mortgage of the property for raising loans etc. Even the defendant also, after the death of his father, never exercised any right treating the suit schedule property as joint family properties of the plaintiff's husband and the defendant. The same is independent as per the respective declarations filed under the Land Reforms Act. It is also stated that the defendant has also gave a statement, which was recorded under Ex.A-14 where the defendant has categorically stated that he did not own any other lands, except the lands that were shown in the declaration. Therefore, it was contended by the learned Counsel in the light of the conduct of the appellant, it is very clear that he never exercised any right over the suit schedule property. The learned Counsel also contended that admittedly, Ex.A-1 is of more than 30 years old document and it was produced by the plaintiff, which is the proper custody, as the said document was in the custody of the plaintiff's husband as long as he was alive and after his death the plaintiff became the custodian of the said document. The learned Counsel also contended that in terms of Section 90 of the Evidence Act it is to be presumed that the scribe, attestors as well as the execution of the document is deemed to have been proved.
12. With reference to the contents of the document, the learned Counsel also contended that the presumption is equally applicable to the contents, as none of the persons connected with the document are available as on the date of the dispute. The learned Counsel also contended that the subsequent material that was brought on record such as Ex.A2 to A5, the declarations filed by both the plaintiff's husband as well as the defendant and the statement of the defendant clearly goes to show that the contents of Ex.A-1 are true and acted upon. The learned Counsel contended that the defendant relied upon Ex.B-1, partition deed said to have been executed between the plaintiff's husband and the defendant's father on one hand and one China Venkat Reddy, in the year 1958 and claimed that the said document shows that the suit schedule properties continues to be the joint family properties even after Ex.A-1 relinquishment deed. But none connected with the said document Ex.B-1 were examined. Therefore, the Courts below have rightly rejected the claim of the defendant. Ex.B-1 was not proved by adducing necessary evidence. Similarly, with reference to Exs.B2 and B3, the contention is that the vendors were not examined so as to explain under what circumstances the defendant was shown as one of the parties to the document. Therefore, no weight was given to the said documents. Therefore, the learned Counsel contended that-there are no merits warranting interference with the findings recorded by the Courts below, as the findings recorded are based on facts.
13. The learned Counsel for the defendant relied upon the following decisions in support of his contention :
Vaidyanathaswamyiyer v. Natesa Malavaravan AIR 1921 Mad. 452; Bhawati Prasad v. Musri Lal AIR 1934 All. 1009; Ram Baran v. Bahadur Khan AIR1942 All. 425; Venkata Subba Rao v. G. Subba Rao and Lakhi Baruah v. Padma Kanta Kalita .
14. From he above rival contentions the issue to be considered is whether the grounds raised by the appellant in the second appeal could be considered as substantial questions of law, warranting interference with the judgment and decree of appellate Court.
15. To avoid repetition of the pleadings and the contentions it would be pro per to consider the issues straightaway. The plaintiff relied upon Ex.A-1 relinquishment deed dated 25-7-1939. Admittedly, the plaintiff produced the said document into the Court and her custody can be considered as proper custody, as the said document was executed in favour of her husband and after his death she is the natural custodian of the said document. Ex.A-1 is the registered relinquishment deed executed by the defendant father Sadasiva Reddy, who had relinquished his entire interest in the joint family property, without showing any schedule or details for a consideration of Rs.200/-. As per Section 90 of the Evidence Act where any document of 30 years old is produced from any custody, which the Court considers to be proper, the Court may presume the signature and every other part of such document, which purports to be in the handwriting of particular person is in that person's handwriting and in the case of a document executed or attested that it was duly executed and attested by a person by whom ' it purports to be executed and attested. As the document in question is a registered document, the presumption contemplated under Section 90 of the Evidence Act would readily be applied since the plaintiff's custody was considered as proper custody. However, the contention of the defendant is that though the execution of the document can be presumed to have been proved, but the contents of the document are required to be proved. As none connected with the document were examined, the said document is liable to be rejected.
16. In support of his contention the learned Counsel relied upon a decision In Khetra Mohan v. Bhairab Chandra (supra), where a Division Bench of the Karnataka High Court held that the person producing a document under Section 90 is relieved of the necessity of proving that it was executed by the person who purported to be the executant; provided that it satisfies the other conditions, namely, it is 30 years old and produced from proper custody. But that it not the same as saying that the Court shall presume the correctness or genuineness of every statement appearing in the document.
To the same effect is the decision of the Division Bench of Bombay High Court in Chandulal v. Bai Kashi (supra), where it was held Section 90 of the Evidence Act only provides that documents more than 30 years old coming from proper custody prove themselves, but it does not involve any presumption that the contents of the documents are true.
To the same effect is the decision of a Single Judge of Calcutta High Court in Bhagirathmal Kanodia v. Bibhuti Bhusan (supra) where it was held that the presumption referred to in Section 90 is of a limited character and applies only to the signature or handwriting. Where, however, there are no names of executant, scribe, or witness, the section cannot avail to prove the document, merely because it happens to be more than 30 yeas old or is produced from custody, Which the Court may consider proper.
In Gangamma v. Shivalingaiah (supra), the Apex Court while considering the effect of Section 90 of the Evidence Act with reference to the old documents observed:
A bare perusal of the aforementioned provision would clearly go to show that in terms thereof merely a presumption is raised to the effect that signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in case a document is executed or attested, the same was executed and attested by the persons by whom it purports to be executed and attested.
Section 90 of the Indian Evidence Act nowhere provides that in terms thereof the authenticity of the recitals contained in any document is presumed to be correct. The High Court, therefore, committed a manifest error of law in interpreting the provision of Section 90 of the Indian Evidence Act and, thus, fell into an error in formulating the substantial question of law. As the purported substantial question of law was formulated on a wrong reading of Section 90 of the Indian Evidence Act, the impugned judgment cannot be sustained. We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, in other words, 'does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.
In Ghurahu v. Sheo Ratan (supra) a learned Single Judge of the Allahabad High Court while considering the presumption under Section 90 of the Evidence Act held that the extent of presummion is laid down in the section itself. It cannot be stretched beyond it. If a document is 20 years old (as per State amendment) and the Court is satisfied of its proper custody, it may be presumed that signature and any other part of document which purports to be in handwriting of any particular person is in that person's handwriting, that the document was executed by the person by whom it purports to have been executed and that the document was attested by the person by whom it purports to have been attested. In fact Section 90 dispenses with proof of document as required in Sections 67 and 68 and what is required to be done is deemed to have been done by operation of law. But, the proof of signature or handwriting does not establish that whatever is stated in document is also correct. That has to be proved not only by production of document but by proving its contents as well.
In Bai Sakinabai v. Gulam Rasul (supra) a learned Single Judge of the Gujarat High Court had an occasion to consider similar issue that arises in the present appeal, and in fact, considered how the recitals of an old document of more than 30 years are to be dealt with. In that case, the defendants relied upon Ex.39, which is stated to be a statement made by the plaintiff's predecessor on 29-10-1930 before the City Survey Officer. The lower appellate Court though held that by virtue of Section 90 of the Evidence Act, the said document is presumed to have been executed by the persons, who are stated to have been executed, but the contents were not proved. Therefore, the contention of the defendants was negatived. The learned Single Judge while considering the said issue as to how the recitals of such an old document could be proved, considered the same and concluded as under :
...It is true that merely because under Section 90 of the Evidence Act the documents are presumed to be duly executed if they are more than 30 years old, there is no presumption about the contents of these documents being true, but in the present case once the execution of the document is presumed, it will show that the plaintiffs predecessor-in-title Umar Mastu who was the signatory to the document had executed the same. Once that is established by Section 90 of the Evidence Act, it would amount to an admission on the part of the executant i.e., plaintiff's predecessor-in-title Umar Mastu about the truth of the statements mentioned therein. This is not a case, in which a third party not signatory to the document is coming forward to show that the recitals contained in the document do not reflect the true facts but here is a case where the very signatory to the document is being foisted with a clear admission on his part of the contents of the document executed by him years back and the said admission is pressed in service against his successor-in-interest. Consequently the recitals in Ex.39 can go in as admission on the part of its executant i.e., predecessor-in-title of the plaintiff in view of the combined effect of Sections 17, 18(2) and 21 of the Indian Evidence Act, 1872. Section 17 of the Evidence Act provides that an admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned. Section 18 follows Section 17 and it also postulates statements made by persons from whom the parties to suit have derived their interest in the subject-matter of the suit provided they are being made during the continuance of the interest of the makers of these statements in the subject-matter of the suit. It is clear that the present plaintiff who derives his interest through his father in the subject-matter of the suit can be foisted with the burden of the admission qua the suit property which his father made years back in 1930 by Ex.39 and when he made that statement Ex.39 his interest in the suit property did continue. The recitals in Ex.39 can also go in evidence under the provisions of Section 32(2) of the Evidence Act, as it is a statement made against the proprietary interest of a person who is now dead. So far as the proof of such admissions contained in the statement Ex.39 is concerned it has been now well settled by the decision of the Supreme Court in Vallabhadas v. Assistant Collector of Customs AIR 1965 SC 481, that once the statements are proved to be signed by persons concerned, they by themselves must be held to prove the admissions contained in those statements signed by the persons concerned. It was not necessary to examine any one else in proof of these statements. In the aforesaid case before the Supireme Court it was argued that certain statements were signed by the accused and their lawyers. The contention, on behalf of the accused before the Supreme Court was that without examining the lawyers who were cosignatories of the statements, the statements and the admissions contained in these statements could not have gone in evidence. The Supreme Court held that once the signature of the appellant below the statement is proved or admitted, the admissions contained in this statement were also necessarily held to be proved and there was no necessity to examine the lawyer who had also signed that statement. In view of this legal position, it cannot be held that the recitals in Ex.39 were not legally proved, consequently the finding of the learned Appellate Judge even on this aspect must be reversed and it must be held that the recitals in Ex.39 were legally proved on the record of the case.
17. The learned Counsel for the respondent, on the other hand, relied upon a Division Bench decision of the Madras High Court in Vaidyanathaswamyiyer v. Natesa Malavaravan (supra). In that case, the Division Bench of Madras High Court while applying the provisions of Section 90 of the Evidence Act observed that - "The presumption under Section 90, as to documents over thirty years old, has to be made with some care. In the case of registered documents such a presumption is very readily raised; and in the case of other documents, unless by reason of their appearance or by reason of internal evidence there are some cogent considerations which recommend them to the favour of the Court, the Court is not bound to raise such a presumption usually."
In Bhagwati Prasad v. Musri Lal (supra), a Division Bench of the Allahabad High Court while considering the treatment to be given to the recitals in the old document relied upon the following observations of the Privy Council in 1916 PC 110 :
If the deeds are challenged at the time or near the date of their execution, so that independent evidence would be available, the recitals would deserve but slight consideration, and certainly should not be accepted as proof of the facts. But as time goes by, and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case, assumes greater importance, and cannot lightly be set aside. It may be sufficient evidence to support the deed.
In Ram Baran v. Bahadur Khan (supra) a learned Single Judge of Allahabad High Court while considering the issue as to the proof of genuineness of old documents observed -
In order to decide the genuineness of old documents the important consideration should be whether they were acted upon or not or whether they were supported by possession or not and too much importance cannot be attached to resemblance of signatures or to the opinion of experts about them.
In Venkata Subba Rao v. G. Subba Rao (supra), a Division Bench of this Court while considering the recitals contained in an old document of family arrangement held relying upon Section 114 of the Evidence Act that the presumption which exists with regard to the recitals in ancient documents must therefore, prevail as it would be difficult to prove such recitals in ancient documents.
In Lakhi Baruah v. Padma Kanta Kalita (supra), the Apex Court while considering the provisions of Section 90 observed as under :--
Section 90 of the Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the document in question is produced from proper custody. It is, however, the discretion of the Court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.
18. On consideration of the above decisions relied upon by the rival parties, it is clear that though the presumption contemplated under Section 90 of the Evidence Act is confined only as to the execution of the document, but in the light of the observation made by a learned Single Judge of the Gujarat High Court in Bai Sakinabai v. Gulam Rasul (supra), who in turn relied upon the decision of the Supreme Court in Vallabhadas v. Assistant Collector of Customs AIR 1965 SC 481, and also a decision of the Privy Council relied upon a Division Bench in Bhagwati Prasad v. Musri Lal (supra), it is clear that the presumption as to the genuineness of the contents also can be extended even in the absence of any evidence in the form of oral evidence by examining the persons connected with the said transaction or document. In fact, as per the observations of the Privy Council, the recital consistent with probabilities and circumstances of the case assumes greater importance, and therefore, the recitals of the document have to be examined in the light of the probabilities of the case, and the other circumstances and the material available.
19. In the present case, it is not in dispute that Ex.A-1, the registered relinquishment deed, was executed by the defendant's father, which is admittedly more than 30 years old document to which the presumption applies under Section 90 of the Evidence Act. With reference to the recitals, the subsequent evidence available on record clearly shows that the family properties after the relinquishment deed executed by the defendant's father continued to be enjoyed by the plaintiff's husband. The said fact is also supported by the respective land reforms declarations filed by the plaintiff's husband under Exs.A-6 and A-8 filed by the defendant, where the respective properties are declared. In addition, the defendant gave a statement under Ex.A-14 before the authorities under the Land Reforms Act declaring that he owns the lands, which he had declared and does not own any other lands, which clearly goes to show that the suit schedule properties have been continuously enjoyed, and shows as if they belong to the plaintiffs husband. Though the defendant disputed the genuineness of Exs.A-8 and A-14, both the Courts negatived the said contention. The other evidence, Exs.A2 to A5, which are the certified copies of the 10(1) Accounts and No. 13 Account, shows that the plaintiff's husband was in possession of the property. Ex.AlO is a registered mortgage deed executed by the plaintiff's husband in the year 1974 for raising a loan, mortgaging a part of the suit schedule property by the plaintiff's husband independently. These documents clearly go to show that Ex.A-1 was acted upon.
20. However, the defendant relied upon Ex.B-1 partition deed stated to have been executed in the year 1958 between the plaintiff's husband and defendant's father, and one Chinna Venkata Reddy. The document shows that the family properties were divided between the plaintiff's husband and the father of the defendant on one side and China Venkata Reddy on the other. The land that fell to the share of both of the above persons was shown jointly and not separately in between them. Admittedly no person connected with Ex.B-1 was examined by the defendant. It is not a thirty years document and it was not the case of the defendant that no person connected with the said document was available for being examined to disclose the circumstances under which the said document came to be executed. In the absence of any evidence showing the circumstances under which that was executed, and further, in the absence of any other evidence showing that after the said alleged partition deed either the defendant's father or the defendant had ever exercised any joint right or interest over the suit schedule property, the contention goes unsubstantiated. In the absence of any such material, the Courts below have rightly rejected to give any weight to the said document. The defendant also relied upon Exs.B2 and B3, which are he sale deeds under which some of the properties said to be the joint family properties, were sold by the plaintiff's husband in which the defendant also joined as one of the vendor. The defendant claimed that he joined as one of the vendor, as the properties were treated as joint family properties. But, a perusal of the document shows that these documents were executed not only by the husband of the plaintiff and the defendant, but also by two other persons. There is no evidence under what circumstances, the defendant as well as other parties have also shown as executants of the said sale deeds. Admittedly, the purchasers, who are available, were not examined. There is no explanation by the defendant as to why the purchasers under Exs.B-2 and B-3 were not examined to prove his claim. In the absence of such evidence or explanation the Courts below denied to give any weight to such documents.
21. Another contention advanced by the learned Counsel was that the defendant himself was a coparcener and his father has no right to relinquish the family properties in entirety even with reference to the share of the defendant. Therefore, to the extent of his share the relinquishment deed is not valid and binding. But, no issue was framed with reference to the said contention, and no evidence was even adduced showing that the defendant was born by the date of Ex.A-1. In the absence of any such evidence, issue, and adjudication, it is not open to the defendant/appellant to raise such a contention without even raising a ground in the grounds of appeal to that effect. Therefore, the said contention is also devoid of merit.
22. Under the above circumstances, the contentions advanced by the appellant are devoid of merit. Therefore, the second appeal is dismissed. No costs.