Andhra HC (Pre-Telangana)
Sivakoti Dasaradharam And Others vs Sivakoti Yoganandam And Others on 22 January, 1996
Equivalent citations: AIR1996AP273, 1996(1)ALT306, AIR 1996 ANDHRA PRADESH 273, (1996) 1 ANDHLD 606, (1996) 1 LS 100, (1996) 1 CIVLJ 765, (1996) 1 CIVILCOURTC 500, (1996) 1 ICC 654, (1996) 4 LANDLR 274, (1996) 2 LJR 244, (1997) 1 BANKLJ 282, (1996) 1 ANDH LT 306
JUDGMENT
1. The two Appeals Suits arise out of the common judgment and decrees dated 29-10-1983 made in O.S Nos. 207 and 264 of 1978 on the file of the Court of the II Additional Subordinate Judge, Vijayawada dismissing both the suits. The facts pleaded by the parties in the aforementioned two suits are many. Equally large number of documents were produced and marked by the parties in the trial court. But, I do not find any necessity to refer to the pleadings in detail. Similarly I do not find any necessity to refer to all the documents produced and marked by the parties in support of their respective cases. For the purpose of disposal of these two appeals only relevent and material facts be stated briefly as under:
Sivakoti Lakshmi Narashimham and Hymavathi were the childless couple. Sivakoti Dasaradharam who is the plaintiff in O.S. No. 207 of 1978 is the adopted son of the couple and he was adopted somewhere in the year 1933. Prior to the marriage of Sivakoti Dasaradharam, Lakshminarasimhan entered into a partition with him on 12-2-1956 in order to satisfy the father-in-law of Sivakoti Dasaradaram, In the said partition, Sivakoti Dasaradharam was given two buildings and Lakshmi Narasimham retained the bulk of the properties. On 26-5-1969 Lakshmi Narasimham executed a registered will bequeathing residential house to his wife Hymavathi and giving certain lagacies to the children of Shivakoti Dasaradharam after the the death of Hymavathi. Sivakoti Lakshmi Narasimham died on 7-3-1975 and Hymavathi also died on 6-4-1978. It is claimed by the plaintiffs in O.S. No. 264 of 1978, that Hymavati before her death created a trust called 'Sri Lakshminarasimham Kalyana Mandiram trust'by a trust deed dated 16-12-1975 in respect of the properties bequeathed by her husband in her favour under the registered will, dated 26-5-1969 and constituted herself as the sole trustee for her life-time and she executed a power of attorney in favour of her clerk D. W. 6 on 19-2-1976 for the purpose of registration of the said document and in pursuance of the said power of attorney, D. W. 6 claim to have presented the trust deed before the Registration authority on 4-3-1976 and the trust deed was ultimately registered by the Registering authority on 9-11-1976. Further, Hymavathi before her death, on 9-7-1977 co-opted Sivakoti Dasaradharam and defendants 1 to 4 in O.S. No. 207 of 1978 as Trustees by a document which is marked as Ex. B-23.
2. Shivakoti Dasaradharam filed O.S. No. 207 of 1978 for cancellation of the trust deed dated 16-12-1975 executed by late Sivakoti Hymvathi and for possession of Item No. 1 of the plaint schedule property and for recovery of Rs. 12,000/- from Defendants 1 to 4 and also for recovery of profits from the date of suit till the date of possession. Defendant No;. 1 is the paternal uncle's son of late Shivakoti Lakshminarasimham; Defendant No. 2 is maternal uncle of Sivakoti Lakshminarasimham; Defendant No. 3 is the brother of Shivakoti Hymavathi and Defendant No. 4 is a close friend of Shivakoti Lakshminarasimham.
3. O.S. No. 264 of 1978 was filed in the name of Sri Lakshmi Narasimha Kalyana Mandiram Trust represented by the Defendants 1 to 4 in O.S. No. 207 of 1978 as Trustees of the said Trust. The said suit is for recovery of possession of the properly described in the plaint schedule and for recovery of Rs. 1000/ - as damages for use and occupation of the plaint schedule property for the month of August, 1978 and for future mesne profits.
4. As the subject matter and the parties in both the suits are the same, ajoint memo was filed by both the parties before the trial Court requesting the latter to try both the suits together and to record evidence in O.S. No. 207 of 1978. Accordingly the trial Court clubbed both the suits and tried the same together.
5. On behalf of the plaintiff in O.S. No. 207 of 1978 Sivakoti Dasaradharam examined himself as P. W. 1 and produced 31 documents and they are marked as Exs. Al to A. 31. On behalf of the defendants 8 witnesses were examined and 34 documents are pro-
duced and marked as Exs. B1 to B34.
6. The learned trial Judge framed the issues and on appreciation of evidence on record dismissed both the suits. There is no necessity to review the findings recorded by the learned trial Judge on all the issues framed by him in both the suits in view of the submission of the learned counsel appearing for the parties in these appeals.
7. Sri J. V. Suryanarayana Rao, the lea'fhed Senior counsel argued on behalf of the appellant in A.S. No. 2369 of 1983 whereas Sri P. Ramachandra Reddy, senior counsel argued on behalf of the appellant in A.S. No. 2338 of 1983. Both the learned counsel at the threshold of the hearing of the appeals pointed out that if the adoption of Sivakoti Dasaradharam by Sri Sivakoti Lakshmi Narasimham and Smt. Sivakoti Hymavathi in the year 1933 is upheld and the trust deed dated 16-12-1975 is held to be illegal or void, then O.S. No. 207 of 1978 filed by Sivakoti Dasaradharam is entitled to be decreed and O.S. No. 264 of 1978 filed by defendants 1 to 4 is liable to be dismissed. The learned senior counsel appearing for the parties are quite fair in making this submission and in my considered opinion also that is the correct position in law. Only in the event of this court holding that the trust deed dated 16-12-1975 executed by Sivakoti Hymavathi is valid, there will be need to review the findings recorded by the learned trial Judge on the other issues. Therefore, let me in the first instance consider the two material issues which determine the fate of these two suits. The two points which arise for consideration in these First Appeals are-
(i) Whether Sivakoti Dasaradharam who is the plaintiff in O.S. No. 207 of 1978 is the adopted son of Shivakoti Lakshmi Nar-simham and Shivokati Hymavathi or not?
(ii) Whether trust deed dated 16-12-975 executed by Shivakoti Hymavathi is valid in law?
POINT No. 1:- The trial Judge after appreciation of evidence on record, both oral and documentary, recorded the finding that Sivakoti Dasaradharam is the adopted son of Shivakoti Lakshmi Narasimham and Shiva-koti Hymavathi. The correctness of this finding recorded by the learned trial Judge is quite fairly and in my considered opinion quite correctly was not contested by Sri P. Ramachandra Reddy, senior counsel appearing for the appellants in A.S. No. 2338 of 1983. Even otherwise, I have carefully gone through the reasons assigned by the learned trial Judge to record this finding. The finding recorded by the learned trial Judge is based on acceptable substantial evidence. Therefore I hold that the finding recorded by the learned trial Judge that Sivakoti Dasaradharam the plaintiff in O.S. No. 207 of 1978 is the adopted son of Sivakoti Lakshmi Narasimham and Sivakoti Hymavathi is valid and is based on acceptable substantial evidence and it does not require any interference and no case is made out at all to interfere with that finding.
POINT No. 2: Before dealing with this point it should be noted that late Smt. Sivakoti Hymavathi was claimed to have executed the trust deed on 16-12-1975 and she appointed her clerk D.W. 6 as her power of attorney for the purpose of registration the trust deed and D.W. 6 in pursuance of that power of attorney presented the trust deed on 4-3-1976 before the registering authority and ultimately the trust deed was registered by the registering authority on 9-11-1976: Sri J.V. Suryanarayana Rao, the learned senior counsel appearing for the appellant in A.S. No.2369 of 1983 assailed the validity and legality of the trust deed dated 16-12-1975 by placing three pronged attack. Sri Suryanarayana Rao, the learned counsel firstly contended that the registration of the trust deed dated 16-12-1975 is void inasmuch as D.W. 6 had no authority from late Sivakoti Hymavathi to present the trust deed dated 16-12-1975 and D.W. 6 had authority from Sivakoti Hymavathi to present and registered only the trust deed dated 16-11-1975 and therefore the action of the Sub-Registrar in registering the trust deed dated 16-12-1975 in pursuance of the power of attorney executed by Sivakoti Hymavati in favour of D.W. 6 is totally in violation of the provisions of Sections 32 and 33 of the Indian Registration Act, 1908, hereinafter referred to as the Registration Act'. Secondly, Sri J. V. Suryanarayana Rao contended that Smt. Sivakoti Hymavathi was admittedly an illiterate woman and she could speak only in Telugu language and she did not know English language at all whereas the trust deed dated 16-12-1975 is in English Language and there is absolutely no evidence on record to show that' before Sivakoti Hymavathi executed the document the contents of the same were explained to her and she understood the same and in that view of the matter the trust deed should be held to be invalid. Lastly, Sri J.V. Suryanarayana Rao contended that in Ex. Al there are number of alterations, addi tions, erasures made anterior to the date of signing of the document by Sivakoti Hymavathi and there is total lack of evidence on record to show that under what circumstances those alterations, additions and erasures were made and whether they were made with the consent and approval of Sivakoti Hymavathi. The learned counsel would also submit that the burden to prove these facts rests on the persons who want to make use of such documents in support of their case.
8. Sri P. Ramachandra Reddy, the learned counsel appearing for the appellant in A.S. No. 2338 of 1983, on the other hand, would maintain that the execution of the trust deed and registration of the same is in accordance with law and though the trust deed is in English language there is sufficient evidence on record to show that the contents of the documents were explained to Sivakoti Hymavathi in the language known to her and she approved the same. Sri P. Ramachandra Reddy therefore would submit that no case is made out to interfere with the judgment and decree passed by the trial court in O.S. No. 207 of 1978 and therefore the appeal A.S. No. 2369 of 1983 is liable to be dismissed.
9. There is no dispute and there cannot be any dispute that the trust deed dated 16-12-1975 claimed to have been executed by late Smt. Sivakoti Hymavathi is required to be registered compulsorily under Section 17(1 )(b) of the Registration Act. Section 49 of the Registration Act declares that no document required by Section 17 or by any provisions of the Transfer of Property Act, 1882, to be registered shall affect any immovable property comprised therein. In other words this section says that no document required to be" registered shall affect any immovable property comprised therein unless it has been registered.
10. In order to appreciate the argument of Sri J.V. Suryanarayana Rao, the learned senior counsel for the appellant in A.S. No. 2369 of 1983 it is necessary to note the provisions of Sections 32 and 33 of the Registration Act. Sections 32 and 33 of the Registration Act read as under:
32. Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,--
(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assign of such person, or
(c) by the agent of such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.
33.(1) For the purposes of Section 32, the following powers-of-attorney shall alone be recognised, namely:--
(a) if the principal at the time of executing the power-of-attorney resides in any part of India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;
(b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power-of-attorney executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in India a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representation of the Central Government:
Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:--
(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in Court.
(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine, him, or issue a commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinafter mentioned in that behalf."
11. The Registration Act has imposed several conditions regulating the presentation of documents for registration, and it is of great importance that those conditions, framed with a view to meet the local circumstances, should not be weakened or strained on the ground that they may appear to be exacting and strict. Section 32 is the first section dealing with the matter. When the terms of Section 32 are considered with due regard to the nature of registration of deeds, it is clear that the power and jurisdiction of the Registrar only come into play when he is invoked by some person having a direct relation to the deed. The provisions of Section 32 make it very clear that a registering officer has no jurisdiction to register a document unless it is presented for registration by one of the persons described under Section 32. If a document is presented for registration by one who is not entitled to do so under Section 32, the registration is invalid. The improper presentation is not a mere defect in procedure falling under Section 87 of the Registration Act. The error is of a more radical nature and it avoids registration as held by Privy Council in Jshri Prasad v. Baijnath (1906) 28 All 707. It is needless to state that the provisions of Sections 32, 33 and 34 of the Registration Act are carefully designed to prevent forgeries and the procurement of conveyances or mortgages by fraud or undue influence, and thought it may seem somewhat technical to insist upon exact compliance with the provision of the Act, it is necessary so to do as held by Privy Council in Pharat Indu v. Hamid Ali Khan (1920) 47 IA 77 All. The power of attorney must be authenticated by the Sub-Registrar and before doing so he must satisfy himself of the right of the agent to appear as provided in Section 34(3)(c).
12. In the present case Sivakoti Hyma-vathi executed Ex. B-3, a special power of attorney, in favour of D. W. 6 who was a clerk of Sivakoti Hymavalhi for the purpose of execution of a trust deed dated 16-11-1975. If that is the authorisation in favour of D. W. 6, the question which arises for consideration is whether with that authorisation to register a trust deed dated 16-11-1975, it is permissible for D.W, 6 to present the Trust deed dated 16-12-1975 for registration before the Registrar. The argument of Sri J.V. Suryanarayana Rao is that the answer to this question should be emphatic 'No'. In support of his submission Sri J. V. Suryanarayana Rao placed certain authorities before the Court for consideration.
13. In Dotte Karan v. Lachmi Prasad Sinha(1930) 58 IA 58 the Privy Council held that having regard to Section 32(c) of the Registration Act, the Registering Officer had" no jurisdiction to register the mortgage and that consequently registration was not validated by Section 87, which refers to defects in procedure merely. Further, the Privy Council held that even if, as the mortgagee alleged, the mortgagors represented to him that the purported agent had a special power to register the bond for them, and that he had acted on that representation, there was no estoppel which affected the question, as the express provisions of the Act had not been complied with. In that case a mortgage bond dated Oct. 4, 1910 was registered on presentation by a person purporting to be the mortgagors' agent authorised to present it by an authenticated power of attorney dated Feb. 9, 1910. The power of attorney when authenticated authorised presentation of a mortgage which it stated was already executed and dated Feb. 8, 1910; that date had been altered to Oct. 4, 1910 without the consent of the executants.
14. In this case firstly there is absolutely no evidence on record to show that Sivakoti Hymavathi authorised D.W. 6 to present the trust deed dated 16-12-1975 for registration before the Registrar. Alternatively, it should be pointed out that even if Sivakoti Hymavathi were to conceded that the Ex. A1 was executed on 16-12-1975 and not on 16-11-1975, the registration of the said document in pursuance of the power of attorney Ex. B3 executed in favour of D.W. 6 would have been invalid inasmuch as there could not be any estoppel against, the statute. It is also relevant to note that D.W. 6 was authorised to register trust deed dated 16-11-1975 and not the trust deed dated 16-12-1975 as could be seen from Ex.B3, and it is nobody's case that the date of the document was altered with the consent or approval of Hymavathi. In that view of the matter the law laid down by the Privy Council in Dotte Karan v. Lachmi Prasad Sinha (supra) squarely applies to the facts of this case and the registration of Ex. A1 should be held to be invalid.
15. To the similar effect is the decision of the Privy Council in Jambu Prasad v. Muhammad Aftab All Khan (1914) 42 IA 22. In that case the mortgage deed of August 10, 1886 was presented for registration on Sept. 9, 1886 at Saharanpur at the proper registration office, on behalf of Lala Mitter Sen, the mortgagee, by one Ilahi Bakhsh, who held a power-of-attorney of Feb. 17, 1885, from. Lal Mitter Sen, which, however, did not empower Ilahi Bakhsh to " present documents for registration. This power-of-attorney had not been authenticated by the Registrar or the Sub-Registrar of Saharanpur, and it does not appear that it had been executed by Lala Mitter Sen before either of those officials. It has not been proved that Ilahi Baksh held any other power of attorney from Lala Mitter Sen. The mortgagors admitted before the Sub-Registrar of Saharanpur, on Sept. 9, 1886, the execution and completion of the mortgage deed on Aug. 10, 1886, and acknowledged the receipt by them of the mortgage money, Rs. 7000 and thereupon the Sub-Registrar registered the mortgage deed. In that case it was contended on behalf of the appellant therein that it might be presumed that the mortgage deed had been presented for registration by the mortgagors who had executed the deeds, and who attended before the Sub-Registrar. While considering the said contention put forth on behalf of the appellant the Privy Council held that when a document is presented for registration under the Registration Act, by an agent who is not authorised by a power of attorney in accordance with Sections 32 and 33 of that Act, the Registering officer has no jurisdiction to register the document, nor to indorse thereon a certificate under Section 60. The Privy Council further held that the mortgagors who attend before the registering officer for the purpose of admitting its execution under Section 34 cannot be recorded, for the purpose of Section 32, as having presented the mortgage deed for the registration, nor does their admission of execution cure a defect in the presentation. Therefore Jambu Parshad is an authority for the proposition that even if Hymavathi were to admit that change in date in Ex. A1 was effected with her consent, even then the registration of Ex.A1 would be bad and invalid.
16. The Supreme Court in Sri Sri Sri Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat quoted the decision of the Privy Council in Jambu Parshad with approval in para 13 of the judgment. Therefore, it should be held that the registration of Ex. Al trust deed dated 16-12-1975 by the Sub-Registrar should be held to be invalid and illegal and violative of mandatory provisions of Sections 32 and 33 of the Registration Act.
17. There is also force in the submission of Sri J.V. Suryaranayana Rao, the learned counsel for the appellant in A.S. No. 2369 of J983 that there is absolutely no evidence to prove the fact that the contents of Ex. A1 which is in English language were explained to Sivakoti Hymavathi and she understood the contents and there afterwards she executed the same. There is no dispute that Sivakoti Hymavathi was an illiterate woman and she could speak only in Telugu language and she did not know English language at all. D.W. I and D.W. 4 are the attestors to Ex. Al, and D.W. 1 and D.W. 4 also did not know English language. There is total lack of evidence on record to show that the contents of Ex.A1 were explained to Sivakoti Hymavathi and she understood the contents properly and approved the same.
18. In A. Dinohamy v. W.L. Balahamy, AIR 1927 Privy Council 185 the Privy Council held that where a deed written in English was signed by a lady who did not know English and the deed deprived of her legal rights, such deed was no bar to her rights under the law. The Privy Council opined that in a case where executant is an illiterate and does not know a particular language, the language in which the document in question is drafted it would require the very strongest evidence that the executant of the document understood the contents of the document, or contents were sufficiently explained to the executant.
19. In Omanhene Kwamin Basayin v. Omanhene Bendentu II, AIR 1937 PC 274 the Privy Council was dealing with an appeal which arose in a litigation between the Stool of Aowin as plaintiff and Stool of Upper Wassaw as defendant. The main question in the litigation was what was the boundary between Aowin and Upper Wassaw. Aowin said that the boundary throughout is the River Tano Upper Wassaw, on the other hand, said that northward from the point where the River Anwia flows into the River Tano the boundary is the River Anwia up to its source, and thereafter northward from that point along a bush track up to the River Huro and then along the Huro for a short distance of half a mile or a mile. There was also in the action a subsidiary claim to damages for trespass by the defendant, or people under the defendant, upon certain land which was situated within the boundary of Aowin, if the River Tano was the true boundary. The trial Judge held upon the oral evidence adduced before him that Aowin's claim is right; that is to say, that throughout, the boundary between these two territories is the River Tanno and he made a declaration to that effect. He also upon the claim for trespass, awarded damages to the amount of 100 pounds. In the year 1925 the Omanhene of Aowin had affixed his mark to a document which purported to be an agreement to refer to arbitration the dispute between Aowin and Upper Wassaw as to their boundaries, and, in pursuance of that agreement, an award had been made which declared that the Rivet Anwia, from its source to its junction with the Tano, was the boundary between these points, but expressly left undecided the further course of the boundary beyond those limits. That award was therefore obviously incomplete, and was open to objection Upon that ground. It was, however, relied upon in that case, by Upper Wassaw as being a bar to the suit, upon the footing of res judicata. The plaintiff, Aowin, on the other hand, alleged that the document in question was not binding on Aowin, because it (i.e., the agreement for reference, which purported to confer jurisdiction upon the arbitrator) was in English language and had not been properly explained and interpreted to the Osmanhene of Aowin when he affixed his mark to it; in other words, that it had not been explained and interpreted to him so as to make him understand its true import,
20. The Privy Council dealing with the claim of the plaintiff, Aowin, held that where a person not knowing English has affixed his mark to a document written in English language, the onus to prove that the document was properly explained and interpreted to the person affixing his mark so as to make him understand its true import is on the party relying on the document.
21. The Privy Council further in Mt Farid-Unnisa v. Munshi Mukhtar Ahmad AIR 1925 PC 204 held that the law of India contain well known principles for the protection of persons, who transfer their property to their own disadvantage, when they have not the usual means of fully understanding the nature and effect of what they are doing, on account of certain disabilities. It also held that the disposition of property made by such disabled persons must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it. The Court also held that the parties to prove the state of the executant's mind are the parties who set up and rely on the deed and they must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension. Coming to the facts of this case it should be held that there is total lack of evidence to show that the contents of Ex. Al which are in English language were explained to Sivakoti Hymavathi and she understood the contents and approved the same and there afterwards she executed the Ex. Al. There were only two attestors to the document, Ex. Al, namely, D.W. 1 and D.W. 2 and admittedly both the attestors also did not know English language. Therefore the question of those attestors understanding the contents of Ex.A1 and then explaining the same to Sivakoti Hymavathi did not arise. There is no evidence to show that any one else knowing English language explained the contents of Ex. Al to Sivakoti Hymavathi and she understood the contents and there after words she executed the document. Therefore it should be held that the execution of Ex. Al by Sivakoti Hymavathi is invalid inasmuch as she executed the same without knowing and understanding the contents of the same.
22. There is one more reason to hold that Ex. Al trust deed is otherwise invalid. It is pointed out that in Ex. B21 which is claimed to be a xerox copy of the original trust deed dated 16-12-1975 and produced by the defendants the word 'November' is struck off and in its place the word 'December' is substituted. In Ex. A1 which is a registered extract of the trust deed dated 16-12-1975 obtained by the plaintiff in O.S. No. 207 of 1978 there are number of alterations, additions, omissions and erasures. In Ex, B21 there is only one alteration as pointed out supra. The Privy Council in Mt. Farid-Ununnisa v. Muktar Ahmad, (supra) held that if a deed, as presented for execution, differs substantially, either by way of addition or by way of omission, from the scheme and details which the intending settlor has previously laid down, the discrepancy ought to be clearly pointed out and its nature and effect should be fully described, unless, which must be rare, the difference is so obvious that even a person in the settlor's position must perceive and appreciate it for herself or himself.
23. Further the Privy Council in Petam ber Manik Jee v. Motee-Chand Manik Jee, (1837) IMIA 420 held that if aparty produces a bond in this country, or any other instrument, which appears to have been altered, the Court will not receive it, or act upon it, till it is most satisfactorily proved by all the subscribing witnesses at the least, and other evidence, that that alteration was made antecedently to the signature. The Privy Council further in Mussamut Khoob Conwur v. Baboo Moodnarain Wingh, (1861-63) 9 MIA 1 held that onus of proof of the genuineness of an instrument in its altered state lies upon the party claiming rights under it.
24. In the light of these decisions, when we look at the evidence on record in this case it should be held that there is absolutely no proof that these alterations, additions, omissions and erasures were effected antecedent to the signature with the consent and approval of the executant Sivakoti Hymavathi. From that angle also Ex. Al document should be held to be invalid.
25. Having regard to the findings recorded by me on the two points framed for consideration it goes without saying that appeal A. S. No. 2369 of 1983 has to be allowed and A. S. No. 2338 of 1983 has to be dismissed and consequently the relief should be granted to the plaintiff in O.S. No. 207 of 1978. In the result and for the foregoing reasons, A.S. No. 2369 of 1983 is allowed with costs and the judgment and decree passed in O.S. No. 207 of 1978 are set aside. Suit O.S. No. 207 of 1978 is decreed as prayed for with costs. The trial Court is directed to hold an enquiry as to the amount of profits from the date of the suit in respect of item No. 1 of plaint schedule property till the plaintiff is given possession of the said property.
26. A. S. No. 2338 of 1983 is dismissed with costs.
27. Order accordingly.