Alapati Sivaramakrishnayya vs Alapatti Kashivishwanandham and Others

Bhimasankaram, J.—This is an appeal against the- judgment of our learned brother Satyanarayana Rao, which was pronounced by him as a Judge of the Madras High Court. The appeal has liven transferred to tin''s Comt u/s 38 of the Andhra Slate Act. By his judgment, the learned Jndge confirmed the decree of the learned Snboidinate Judge of Tenali in favour of the plaintilfs in O. S. No. 42 of 1947 on the file of the latter. The 1st Defendant in that suit was the Appellant before the learned Judge and he is also Hie Appellant before us.

There were three plaintilfs in the suit, Plaintiffs 2 and 3 being alleged to be the tenants of the 1st plaintilf in respect of tho land which is the subject-mat tea'' of the dispute between the parties. The 1st Plaintiff claim do have purchased the land from the 1st Defendant under a sale-deed, dated 13th July, 1939, in pursuance of an agreement, dated .10th of February that year. The sale-ul i-f] and the agreement have be; u marked in the suit as Exhibits A-1 and A-2 respectively. ''The 1st Plaintiff alleged in the plaint that ho was put in possession of the land and that till 1946, it "was being cultivated with the help o! the cattle and farm-servants belonging to (lie joint family of himself and his elder brother". it was further stated therein (hat "as 1st Plaintiff''s biother was of late mostly staying, at Tenali, the Plaintiff was obliged to lease out tho suit laud to Plaintiffs 2 and 3 for 5 years" under a registered lease deed, dated 10th May, 1946 registered on 9th August, 1946 and marked as Exhibit A-JO. The Plaintiffs 2 and 3 cultivated the suit land, die plaint proceeded to say, that year; but as there were disputes between the 1st Plaintiff and his wife and as the 1st Defendant who was related to her along with other relations of hers wanted "to extract by force" something more than the sum of Rs. 15,000 which the ''1st Plaintiff'' had settled to pay her by way of maintenance: the Defendants invaded, the peaceful possession of the Plaintiffs and with a view to carry away the crops raised by the Plaintiffs 2 & 3 in die suit land, obstructed them in their field operations. Then there was a petition filed by the Plaintiffs u/s 144 of the Code of Criminal Procedure followed by a petition u/s .145 of the same Code. The Deputy Magistrate, Tenali, decided the question of possession in favour of tho 1st Defendant. The crop on the land, pending those proceedings was auctioned under orders of the Deputy Magistrate and the sale proceeds amounting to Rs. ''1,310-0-0 were deposited with the Magistrate. The suit was, therefore filed lor silting aside the order of the Deputy Magistrate, dated" 31st May, 1947 and for recovery of possession of the land as well as the sum of Rs. 1,310 the profits of the year 1946 so deposited.

The Defendants 2 to 5 are said to be close relations of the 1st plaintill''s wile. The 1st Defendant was the only contesting Defendant and his ease is best set out in his own words as stated in his written statement;

This Defendant owns land adjoining that which previously belonged to his sister-in-law one viiluri Bullamma. She offered to sell her land to this Defendant at a time when the disputes between him and his brother were still left undecided. ''this Defendant feeling apprehensive that in ease he were to buy tho said property in his name without anything more, his brother might lay claim to a share therein,'' treating it as a purchase from the joint family funds, took counsel with the 1st Plaintiff and his brother, who though not closely related to this Defendant, were on ttie most cordial and intimate terms with one another. This Defendant was advised that if he could make it appear as though he raised funds for'' buying land from the said Bullamma by selling his own land, any possible attack by his brother could be easily and cllectively met or averted. It was under these circumstances that the contract of sale, dated lOih February, 1939, and the sale-deed dated J3th July, 1939, came to be executed in favour of (lie first Plaintiff. The said documents were merely meant to supply evidence in case, of need, of the fact that the property bought from Bullamma is this Defendant''s own, not liable to any claim on. the part of his brother.

lie further alleged that he did not receive the sum of Rs. 6,200 recited to have been paid under the contract or the other amount recited as having been further paid under the sale-deed. He claimed to have himself continued in possession and enjoyment of the property despite Exhibit A-1. lie further averred that the cist on the land was being paid with his own money in the name of the 1st Plaintiff. He also stated that the 1st plaintff and his elder brother who is their joint family manager, had passed a letter, dated 15th July, .1.939, in his favour staling the circumstances under which the sale-deed in favour of the Plaintiff came to be executed and acknowledging his (the 1st Defendant''s) title to and possession of the property. Ho asserted that the Defendants 2 to 5 are not necessary parties to the suit, they not being in possession of the property at any time.

The 1st Plaintiff filed u reply statement, in which he attacked the letter, dated 15th July, 1939, stated to have been passed by him and his elder brother as a forgery. He further stated as follows:

The first Plaintiff and his brother file I a suit in O. S. No. 8 of 1939 on the file of the Sub-Court. Tenali, against Alapati Peda Venkata Krishnayya and others for partition of certain joint properties and out standings. First Defendant was a party to that suit, being a co-sharer entitled to a share equivalent to that of the first Plaintiff and his brother. He worked on behalf of the first Plaintiff and his brother in that litigation. He got three commissioners appointed in the said suit for seizing documents and account books from the'' residence of the said Peda Venkuta Krishnayya and some others".

He then added:

Urgent orders had to be obtained for breaking open the locks of iron safes and a room. This Plaintiff and his brother had to remain at the houses of these Defendants to prevent the clandestine removal of the documents and books. First Defendant represented to this Plaintiff and his brother that he would get a petition filed, obtain orders from the Court if this Plaintiff and his brother signed on a blank white paper and gave it to him and that it was necessary for filing the petition. This Plaintiff and his brother believed those words and signed on a blank white paper and delivered the paper to the first Defendant. This plaintW suspects that the paper might have been used the first Defendant to fabricate the letter alleged in paragraph 0 of his written statement. The letter is not therefore valid and binding on the Plaintiff.

On these pleadings, the following issues were raised by the trial Court:

1 Whether the contract of sale, and sale or. suit properties by first Defendant in favour of first Plaintiff are sham and nominal and were not intended to be given eKect to ?

2 Whether first Plaintiff and his brother executed the letter, dated 13th July, 1939, in favour of the first Defendant?

3 To what profits prior to suit are Plaintiffs entitled?

It will be noticed that as the second issue stands, the onus of proof in the seese el tin.'' duty to lead in evidence, first, was cast on the 1st Defendant. Of course, there is no admission < von in the reply statement that the letter, dated I5lh July, 1,939, Exhibit B-8 contained Mm signatures of the 1st Plaintiff and his brother. The reply statement was so worded as to enable the 1st Plaintiff and his brother later either to deny their signatures therein or to admit them as it suited them. This reluctance to take a definite stand as regards their alleged signatures in Exhibit. B-8, and there can be little doubt that the reply statement was filed after an examination of the letter by the 1st Plaintiff and his brother has not unnaturally led to a conflict between the versions in the witness-box of the 1st Plaintiff as P. W. 1 and his elder brother as P. W. 2.

The 1st Plaintiff clearly and definitely denied that the signatures in Exhibit B-8 were those of him and his brother while P. W. 2 admitted their genuineness. Both the witnesses, .of course, spoke to the entrustment of a blank sheet of paper containing both their signatures to the 1st Defendant for the purpose of a petition to be filed in connection with 6. S. No. 8 of 1938. But, at the time of tire arguments, apparently on better thoughts, it was admitted by their counsel that the signatures were those of the 1st Plaintiff and P. W. 2 though the learned Sub-Judge states that the admission was made at the time of the trial. It is difficult to appreciate what the learned Subordinate Judge'' meant, because, as already "stated, P. W. 1 flatly denied the signatures in the witness box. The course of the trial whereby the 1st Defendant was

first compelled to lead in evidence in regard to Exhibit B-8 was determined by the frame of the

second issue which, of course, was correctly framed in the absence of any definite admission in the reply statement as to the signatures.

But, curiously, when the 1st Defendant was in the witness box, a suggestion was put to him that he had taken the signatures of the 1st Plaintiff t and his brother on a blank paper in '' connection with a petition in O. S. No. 8 of 1938. It is to be noticed that the 1st Plaintiff was examined after the 1st Defendant though on the same day. In spite of the suggestion so put to the 1st Defendant in the witness box, the 1st. Plaintiff as P. W. 1 stated that the signature in Exhibit B-8 was not his and that there was also no signature of his brother in it. But P. W. 2 who was examined the next day, deposed in conformity with the suggestion put to the 1st Defendant during his cross-examination that . Exhibit 15-8 was the blank paper in which he and the 1st Plaintiff had signed and which they had given to the 1st Defendant in order to be used to prepare an affidavit for supporting a petition in (). S. No. 8 of .1.938. The above account clearly shows that the 1st Plaintiff was uncertain as to the line to be adopted in regard to Exhibit B-8 and that he was unwilling to take upon himself the burden of establishing to the satisfaction of the Court that Exhibit B-8 was a letter prepared over his brother''s signatures on a blank piece of paper for some purpose connected with an early litigation in which the 1st Defendant and the 1st Plaintiff and his brother were commonly interested.

This indefiniteness of attitude resulted in the second issue being so framed as to compel the 1st Defendant to adduce evidence first as regards Exhibit B-8. This dubious course of conduct in the early stages followed by the admission at the trial though, as pointed out: earlier, it: is difficult to say that there was such an admission during the trial, having regard to P. W. Ts statement in the witness box-is, we think, utterly to be deprecated.

There is no reason why this admission should not have been made at the earliest point of lime, that is, when the reply statement was put in. The reply statement is disingenuous and designedly unhelpful and was calculated apparently to forestall the prima facie case that might be established against the Plaintiffs in case their signatures were proved to be genuine, as the Plaintiffs had good reason to fear they might easily be.

Now, it is perfectly clear that Exhibit B-8 is the pivot of the case. If the learned Subordinate Judge and the learned Judge in appeal had come to the conclusion (hat Exhibit b-8 WITH genuine, there is little doubt that they would have held in favour of the defence because the other evidence available, as their judgments show, is not of such a character as to be decisive ol the case. We, therefore, propose to address ourselves, is the first instance, to the question as to whether Exhibit 13-8 is a letter signed by the 1st Plaintiff and his brother P. W. 2.

The learned Subordinate. Judge held that Exhibit 13-8 is a forged document. Our learned brother Satyanarayaua Rao, J., recorded his finding about Exhibit 13-8 in these words:

The direct evidence therefore of the execution of this document by the Plaintiff P. W. 2 with knowledge of the contents is unacceptable, and the learned Judge, who bad an opportunity of seeing the witnesses, was not prepared to rely on; their evidence and I am not prepared to differ. to rely on; from him. Exhibit 13-8 has not 1 eon established to be a document, which was willingly executed by P. W. 2 and the 1st Plaintiff with knowledge of the contents.

This passage indicates that the learned Judge took the view that the 1st Defendant had to establish that the 1st Plaintiff AND P. W 2 AND EXECUTED the letter willingly with knowledge of its contents.

Before, we discuss the question o! burden of proof in a ease of this character, it is necessary to point out that the word ''execution'' is hardly apt when used in regard lo (he oral ling of a letter and is only appropriate in regard to a deed or instrument", as in such eases, certain formalities are insisted upon by law and they are to In; followed by the executant in order to make the. document effective in law. Where, as in the. case of a will, the law requires the attestation by two witnesses of the signature of the test e: r, (here can be no execution, as such, unless the procedure prescribed by the law in regard to attestation is followed. A piece of paper, though styled a will and though it may contain die alleged testator''s signature will not be a will unless it has been executed in the manner prescribed, by law.

So also is the case with other documents where definite formal requirements are prescribed. Nobody can ''execute'' a will by merely drawing up a document containing directions as lo the disposal of his property alter his death followed by his. signature. Nobody can be said to have executed a mortgage bond merely by signing a document called a mortgage deed. Put, in the, case of a letter where there can be no possible question of execution'' in this sense, proof of a man''s signature under it is surely prima facie proof that the content'' of the letter are attributable to this authorship. If a man denies that he- has written a letter which contains his signature, then surely he must prove what he alleges, i.e., that the letter was got up on a blank piece of paper containing his signature, as also the circumstances in which he happen-

1 ed to put his signature on such a piece of paper. There is no question of proving the "execution" of a letter by the signatory. Even where formal execution as such has got to lie proved, cases have held that where a man''s signature appears in a document at the place where the executants of such a document would normally sign, then the signature may prima facie be taken as having put in token of execution find that therefore or admission of a signature in a document requiring the execution in a particular form is prima facie proof that the document was executed by the signatory, because, normally, it has lo be presumed u/s 114 of the Evidence Act that a person only puts a signature in a document in token of his execution thereof. I3ut the present one, it seems to us, is an a lorliori ease because here, there is no question of any execution.

We may usefully refer in this connection to a passage from the judgment of a Bench of the Nagpur High Court in AIR 1938 152 (Nagpur)

"In Deviclas v. Mamooji AIR 1924 Nag 103 for instance it was held that an admission by the Defendant that-a document bears his signature coupled wiiti an assertion, that it had been placed upon a blank piece of paper upon which the rest of the document was fraudulently scribed was not an admission ol execution and so the burden of proof lies upon the Plaintiff. One of us (Rose, J.) recently came to the opposite conclusion in Second Appeal No. 208-13 of 193,"5. In view of this conflict of opinion, we think it desirable to examine the question at length ........ As ait abstract proposition, it is beyond doubt that: the initial burden of proving execution when it is denied is upon the Plaintiff. The real question we have to decide here is not that but whether this onus can be discharged by mere proof of signature; not proof of execution as such but by bare proof of signature. With the utmost respect for the learned A. J. C, who decided AIR 1921 Nag 103 we think it can.

Quite apart from all technical considerations, what is the inference that an ordinary careful person would draw from a letter or document which he knows or is assured boars a man''s signature? Which is more in accordance with the ordinary course of human, affairs? What is the common course of business - to sign a blank piece of paper and hand it over to strangers, or, as here, solemnly to execute deed with no intention of acting on them, or to affix one''s signature to a document one has read and understood, or had explained in token of execution with the full intention of giving effect to it? We think it would, be a serious thing to hold that execution cannot be proved except by direct evidence. What is to happen when everybody who can speak about the matter is dead and the document is less than 30 years old? J low often does any one but the executants see a cheque or a promissory note signed? What can a Plaintiff do in such cases but adduce bare proof of "signature", and yet according to the view in AIR 1924 Nag 103 which was a ease of a promissory note, that would not be enough.......... We have no quarrel with the general proposition that proof of signature is not necessarily pro 1 of execution and that an admission that document bears a man''s signature is not necessarily an admission of execution. The circumstances of the ease may negative, such an inference. We fully realise that quite apart from fraud cases may arise in which a document is signed without any intention of present execution; for instance, a man might sign a fully drawn up contract and put it in his pocket without having any intention of executing it. He may have sifted (it) with the intention of delivering it at some, later date if a certain event should happen and of (caring it up if it should not. That of tonne would not amount to execution, not even to conditional execution. It would not create even a contingent interest in the subject-matter of the instrument. But surely, if nothing else is known then the mere fact that a document is proved to bear a certain signature and that it comes from proper custody: ought to be enough to raise an inference thai: itj was signed, with the intention of execution, Sure!;/ it is evidence by which execution can in comfortable circumstances be proved." /

Then, discussing the facts of the case in AIR 1921 Nag 103 they proceeded to state as follows:

In that ease, the Plaintiffs statement when analysed consisted of three separate assei lions o( fact: (1) that the thumb impression in question was the Defendant''s, (2) that it had been affixed to the document in question as opposed to the piece of paper on which it appeared, am! (3) thai: it had been so affixed in token of execution. The Defendant admitted the first of these three statements and denied the other two. As regards the first there was no qualification whatever. Of. course, this was not an admission of liability and not an admission of execution. I): was merly admission of the one fact that the thumb-impression on the paper was the Defendant''s. That being so, as we view the law the Plaintiff was not ca led upon to prove that fact. But if that is accepted then according to our view an inference arisi s under the law about execution and not because oi any admission made by the Defendants: an inference that the thumb-impression had been affixed in token of execution. The Plaintiff would succeed if nothing more is known not because the Defendants had admitted execution but because the Plaintiff has established a prima facie case.

We are in respectful agreement with the view so expressed. We may also note that in the ease ot a promissory note, a Full Bench of the Rangoon High Court in J. K. Shah v. Dulab Meah 1939 Hang LR 397 : AIR 1939 Rang 331, overruling a contrary view taken in Hoe Ivloh v. Scedat ILH 5 Rang 527 : AIR 1927 Rang 319) held that where the Plaintiff sues on a promissory nolo, and the Defendant admits, (or has had proved against him conclusively) his signature i.r his ihumb-impression on the promissory note, but ass; its that he did not sign the promissory note in the condition in which it is filed, the burden is on the Defendant to prove that the promissory note is not what it appears to be. Our attention has n''so been drawn to the decision of a single Judge of the Mysore High Court in Lakshmamma v. AI. lavaram AIR 1952 Mys 114 (E) It was held in that" case'' diat where a party alleges that he affixed ins signature or thump-impression on a blank payer on which the document must have been without later he has to "prove that fact and that if he fails to do so, the presumption is against him. As already stated, in this case there is no question of any execution at all and therefore, it seems to us that the burden of satisfying the Court that the signatures were inserted upon a blank piece, of paper squarely rests on the Plaintiffs and it'' they fail to discharge such burden, it must be presumed that the contents of Exhibit B-8 having been subscribed to by the 1st Plaintiff and his brother are true avd binding upon them.

Now, in the light of the above proposition, we propose to examine the state of evidence in the present case. We have already observed that the 1st Defendant adduced his evidence first in regard to Exhibit B-8. It purports to have been w.vitlen by D. W. 2 and attested by D. Ws. 3 and 4. It is true that D. W. 2 is the brother-in-law of a sister''s husband of the 1st Defendant and that D. W. 3 is a brother-in-law of another sister''s husband, lint, nothing has been elicited in the course of their cross-examination to discredit their evidence, though D. W. 3 says that he does not know the contents of Exhibit B-8 and the ivason why it was executed, while he states in the same breach (hat Exhibit 15-8 was read out at the lime. So far as D. W. 6 is concerned, it was elicited in his evidence that he and the 1st Defendant had at one lime'' agreed to trade jointly and obtained a licence in their names for that purpose. But the trade was ultimately carried on by D. W. 6 alone with a capital of Rs. 1,000 advanced to him by the 1st Defendant on a promissory note.

It was further elicited in the cross-examination of ).). W. 0 that the 1st Defendant had filed a creditor''s insolvency petition against hiui on foot of this promissory note, that thereupon D. W. 6 was adjudged insolvent, that the insolvency proceedings were still pending at the time D. W. 6 gave his evidence and that about 8 or 10 months back that debt was discharged on payment of about Rs. 400 by D. W. 6''s father-in-law. It was also made out in the evidence that P. W. 2 had obtained a decree against D.W. 6 and that execution proceedings therein were still pending. The .trial Court rejected the testimony of these witnesses because of their alleged interested)less as also because of its view that it is the duty of the 1st Defendant to examine the two attestors of Exhibit A-1 in support of his case, as the onus is on him to prove that. Exhibit A-1 is nominal and that he does not explain why he did not examine them.

What the learned Subordinate Judge failed to see was that the onus of proving that Exhibit A-1 is nominal is discharged by proving Exhibit B-fi .. and that so far as Exhibit B-8 itself is concerned, as the signatures are admitted, it is prima facie evidence of the commonality of Exhibit A-1. He seems to have approached the consideration of this point from a wrong angle of vision. It is difficult to appreciate what the learned Subordinate Judge means when he says that he "accepted the evidence; of the 1st Plaintiff and his brother as to how the 1st Defendant should have coirm into the possession of a blank paper containing their signatures and that Exhibit B-8 must have been got up on it". He entirely overlooked the fact that the 1st plaint id''s ease in the witness-box is that Ex- \\ hibit B-8 is altogether a forgery and that it is impossible at the same time to accept and act upon the evidence of both P. Ws. 1 and 2 because the evidence of the- one contradicts that of the other.

In this connection, it is to be noticed that much is sought to be made of Exhibits A-19, A-20 and A-21 which are copies of the inventory lists prepared by the commissioners appointed in (). S. No. 8 of 1938. Those copies filed on behalf of the Plaintiffs are admitted to contain the writing of the 1st Defendant. The learned Subordinate Judge says that he cannot accept the 1st Defendant''s evidence thatthe.se copies of (he inventory lists wore prepared for his own use and that he gave; them to P. W. 2. Even if lie was right in rejecting it, it does not follow, as he seems to think, that the 1st Defendant Was actively assisting the 1st plainlill'' and his brother in the conduct of the suit. Apart from the fact that even if he were, it would not follow that a blank piece of paper was handed over to him by them for the purpose of preparing a petition in O. S. No. (S of 1938. It must be, renumbered that the 1st Defendant was himself a parly it that suit and in (he piainl, it was alleged by P. Ws. 1 and 2, who were the Plaintiffs, that ''ho .''Hh and the 6''Ui Defendants, i..e., the present i''.i deleudanl. and his brolher, were entilled to a lourih share along with (hem. It is no wonder (''MTCIOIV it (he Plaintiffs and the 1st dclendaei stood loge''lhiT against the eoutesting Defendants. J!::i 1,''n''s does not necessarily probabilise the conclusion ih.at the 1st Defendant was sent to Tenali v.it.''i a blank piece of paper containing the signatures of P. Ws. 1 and 2 to obtain an urgent order from the Court for the purpose of breaking open the locks of rooms and iron safes in order to take an inventory of tire moveables in dispute in that suit. Exhibit A-28 is a certified copy of the 1st Plaintiff''s affidavit in support of that petition, That affidavit is signed only by the 1st Plaintiff and what is more, it is attested by the Mnnsif of Govada which is the village of all (ho parties. The explanation offered by the 1st plainlill'' now is that on that day at first, a blank piece of paper e in-tainting the signatures of both P. Ws. 1 and without the attesting signature of the local Village Mnnsif was taken to their pleader by the 1st Defendant while the Plaintiffs were keeping watch and ward in the village over the houses of the contesting Defendants in that suit and that it was found not suitable by the vakil, that a bus driver was entrusted with the original of Exhibit A-28 to be signed by one of the brothers, and attested by the Village Munsif and that orders of (he Court were finally obtained later that very day on a properly signed affidavit. It seems to us difficult to accept the evidence of P. Ws. 1 and 2 in this connection. P. W. 2 has admitted in his evidence that he is a party to several kinds of litigation both civil and criminal, and that he is well acquainted with the ways of the Court. It would be indeed surprising if such a person thought that two signatures were necessary at the bottom of an affidavit. It would be still more surprising that such signatures would be given without the attestation of the easily available local Village Munsif especially when we know that the actual affidavit filed later contained his attestation. One also wonders why a seasoned litigant, that P. W. 2 is, did not ask for the return of the paper as soon as the 1st Defendant came home and It is to be remembered that he returned the very day from Tenali to the village because it is admitted that Exhibits A-19, A-20 & A-21 were prepared that very day. Exhibit A-8 is also sought to be discredited by saying that there was a cross originally put at the place where the signatures appear and that it has been subsequently erased. We cannot think why particularly there should be a cross put when signatures are taken on a blank paper of persons not unacquainted with the. Preparation of papers for Court use, any more than when they are taken at the foot of a letter or a document. No suggestion was madeto the 1st Defendant when ha was in the witness box that he had erased any such cross. All that he was asked was, whether there was not a cross which appears to have been erased. He stated that he did not see any such erasure. Further, even a most meticulous examination of Exhibit B-8 does not reveal evidence of any attempt to fit in the text within the available blank space.

Another circumstance that has to be noticed is that the story of the bus driver having been sent to Govada trotted out by P. W. 1 in the witness box is not deposed by P. W. 2, whose version about the incident is as follows:

Locks had to be broken for taking inventory and I said that I could not go to Court for getting the necessary permission. Defendant .1. (hen suggested that if I and Plaintiff .1 .signed on a paper and gave it to him, lie would go to Tenali and get an order. Thereupon we signed on a sheet of paper and gave it to him. .first Defendant went to Tenali and returned saying that paper was of no use. He took another paper with the signature of first Plaintiff and got an order."

It appears from the evidence that the village of Govada is about 11 miles away from Tenali. IIP. W. 2''s version is true, the 1st Defendant must have walied or gone by bus to Tenali twice and returned from it as many times while leaving enough time not only to procure an urgent order from the Court but also for the commissioners to go and finish a rather complicated job.

In this case unfortunately, we have frequently to choose between the conflicting statements made by the brothers P. Ws. 1 and 2 as to some important events apart from the conflicting cases they set up as to the signatures in Exhibit B-8. This is one such. Indeed why that affidavit should have been signed by the 1st Plaintiff instead of P. W. 2 who is the elder of the two brothers and who must have been the 1st Plaintiff in that suit has not been explained by either P. W.

1 or P. W. 2 in their evidence. They both were available in Govada, because according to them they were keeping an eye on the movements of the contesting Defendants in that suit to prevent '' the latter from removing or secreting the moveable property which was involved in that suit. One would think it would be more natural for the elder brother to have signed the affidavit. Why was it not so signed? One wonders therefore whether the story that both the Plaintiffs were waiting at Govada while the 1st Defendant was sent to Tenali ''for the purpose of obtaining the order they wanted, could be true. It would rather appear that the 1st Defendant himself had gone to Tenali while the elder brother P.W. 2 was keeping a look-out at Govada. Further, in the criminal proceedings that preceded the present suit, P. W.

2 had deposed that they had given 1st Defendant "blank papers" with their signatures, though according to the reply statement and their present version, only one blank paper was given to him. The 1st Plaintiff however says even in his present deposition thus:

He (1st Defendant) used to take our signatures on blank papers and utilise them for the suit. We gave Defendant 1 blank papers with our signatures at the time when inventory had to be made in Peda V. Krishniah''s house by breaking open locks. We could not then go to Court. The pa-pers given by us were not utilised for the pm-SoS of the petition for breaking open locks. Defendant 1 did not give us back the bank papers P W. 3 clearly and categorically state that they, gave Defendant 1 only one blank paper w LI then signatures. These versions, it seems to deliberately calculated to contuse the v,.u an to enable the Plaintiffs to rely on any .one o K m is bavin;'' been true, according to i''iiom-u-A Court" should not he called upon to to between two irreconcilable versions of an event at the instance ol Parties was, fully aware of the facts are not entire y hauk with tire Court. When two witnesses m. die same, one of whom is a party to the suit and the other is completely identified wi h hm - give accounts at variance with one another oi lir . m, incident of which they claim personal k. owl go t seems to us that neither of the versions could be accepted. It is difficult enough to cho.se. between conflicting evidence. It is intolerable that the Court should be e.po by the deliberate action or .the parties Jo the necessity of making a choice between. We must condemn in no uncertain leans this unwholesome attempt to mislead the Court anil to take the chance of the Court being torcod to decide upon its own assessment of probabilities Jen when" the parties are in a position to depose to material facts from personal kiiowlcc.fr.. Courts cannot discharge their duty of doing justice l)tt-ween the parties to a litigation unless the partic, are prepared to assist the Court with die utmost I candour. Parties cannot ask the Court to solve a riddle placing before it the minimum information possible and .with conflicting versions on the same I side even as regards that. On the state o! JVK1VI.CC above referred to as regards the alleged b.ank paper entrusted to the 1st Defendant, it is difficult to say that the case set up in the reply statement has been established. Whatever may be hie value to be attached to the evidence adduced on behalf of the 1st Defendant as to the circumstances in which the letter was passed, it will become c caver and clearer as we discuss the other aspects ot too case, how untrustworthy the testimony ol x. Ws. I and 2 is in regard to any matter to which they deposed. (18) Now we shall consider whefner tlio Plaintiff''s case as regards Exhibits.A-1 and A--could be true even assuming tor the sake ol aigu-ment that Exhibit B-8 was not there J he case. ol the Plaintiffs is that a sum of lis. 0,200 i;au to the 1st Defendant under the contract Exhibit A-2 was paid out of an amount of Rs. 10,000 received by the 1st Plaintiff from his father-in-law towards the dowry payable to him at the time o l.is marriage with his first wife. The marriage admittedly took place in 1930. The dowry amount is stated to have.been paid in 1939 on the very day on winch Exhibit A-2 was drawn up. It is said mat "" amount which was promised at the-time ot the marriage was only paid ten days bcl ore the consummation of the marriage in 1939 f /(tm) h>t Plaintiff insisted upon the payment of that amount before the ceremony took place. Here are conflicting versions again as to when that ceremony took place, whether on the date ot Exhibit A-2 or ten days later.

If the entry in Exhibit A-29 s to be believed it took place on die date or . Exhibit A-2. 1>" t&e first instance, it seems to us highly improbab e that the marriage took place on a bare promise to give the dowry. Again, even it that wore hue ''t is incredible that the 1st plaiutilr would have waited as long as nine years beiore asking 1 r it Moreover, it must be a remarkable coincKlcnce, ]Klt it was received exactly on tne date when money was paid to the first Defendant. lherti is a single bald entry in Exhibit A-29, reciting the receipt of Rs. 10,000 from the mother-in-law s people of the 1st Defendant. There 4s no( men ion of the father-in-law''s name. It is admitted flu there is nothing in the accounts to show how tat balance of lis. 3,800 was spent or invested I. W. 2 claims that he lent die balance of Rs. .;,0UO and odd in his own name and that he cannot say to whom he lent it out and when. He confesses that there is no entry about it in the accounts.

One other circumstance which tends to falsify this ease is'' that the 1st Plaintiff who married ''.l(Mii,is staled to have been given at the time ot his second marriage two acres of land and a sum ot Rs 2 000 by way of katnam. It is admitted that this ''amount of Rs. 2,000 is not credited in the accounts. It may also be noticed that in lus deposition, the 1st Plaintiff claims the katnam amount as his separate money. He says that he purchased the suit land for himself obtained possession of it cultivated it personally, utilised the income ior liis own purpose, though he says later, contradicting himself, dius:-

"When the suit land was cultivated by us, die cultivation expenses were met from family funds. He admits in his cross-examination that excepting the suit properties, he has no other separate property. He further states that the receipt of 52 bags of paddy recited in Exhibit A-2 as being payable by the 1st Defendant to him towards the rent due during the year though received by him later is not entered in the accounts. P. W. 2 however says in his deposition that he and the 1st pontiff have been cultivating die land'' till 1946, that they got possession of die suit land on the oate ot Exhibit A-1 that he spent for cultivation expenses on the suit land and that he used die income irom the suit land for himself. He further says:

"The expenses, income and cist of suit land do not find a place in our accounts as they � are included in joint expenses (whatever this may mean)". He admits that the katnam of Rs. 10,000 belongs exclusively to the 1st Plaintiff. But lit; says in explanation of the entry in Exhibit A-29 that as they were joint, the sum was included m the joint �recounts. He owns that there is no ledger page; in the 1st Plaintiff''s name and that it did not strike him to have a separate ledger page for him. He further says that though the land was under joint cultivation the 1st Plaintiff himself granted a lease to the Plaintiffs 2 and 3 and that he knows nothing about that lease because the 1st Plaintiff had given it without consulting him. The story about this Rs. 10,000 as deposed to by these witnesses and as sought to be supported by Exhibit A-zy seems to be wholly incredible. There can be little doubt that Exhibit A-29 was made up tor the purpose of supporting a false story.

Another circumstance which wc might notice is that the stamp papers used for Exliibit A-1 were purchased in the names of both the 1st Plaintiff and the 1st Defendant. P. W. 2 who claims to have purchased them himself, when asked to explain why they were so purchased in the names of both, stated that he cannot offer any explanation. It is submitted for the Respondents that the accounts show that the amount of cisl paid on the land was included in the total sum ol cisl entered in the accounts as having been paid by the brothers for some years. If die accounts are trustworthy, this is a circumstance which might discredit the 1st Defendant''s case that he was himself paying the money to the 1st plaintilf for the payment ot the cist due on these lands. But, these accounts which are stated to have been written by P. W. 2 and of which P. W. 1 claims to have absolutely no knowledge whatsoever, seem to us to be ol doubt-fid authenticity. in his chief elimination, P.W.I, says:-

"There arc account books lor our Janiily. Exhibits A-29 and A-30 are our hunily aec.mnt books. It was my elder brother who was writing and maintaining the accounts. i used to he present once in a way when my brother used to write accounts. There is an entry in Exhibit A-29 about the receipt of katnani by me. I was not present when the entry was made." In (he cross-examination, lie slates as lollows:--"I know nothing about maintenance ot accounts of our family. I know nothing about the entries vE the accounts produced in this suit. The receipt or -P2 bags of paddy is not enter.!;! in (lie account books. The katnani amount is my separate money. The receipt of Us. 10,000 and the purchase of suit land were entered in the accounts to serve as evidence of the purchase with my money at the time of partition. The balance of Rs. 3,000 and odd remaining out of Its. 10,000 was lent out by my brother. My brother took doeum"uls for the loans in his name alone. There is no personal ledger ot mine in the family accounts. My e.\\penses are met out of family funds. There is no separate account for it....... . . I do not personally know that Exhibits A-29 and A-30 ''were produced in the Income Tax Office......... I paid Us. 15,000 to my wife-out of family funds. It ought to find a place in our accounts. I do not know whether it is found in the accounts."

P. W. 2\\s evidence, in chief examination, in regard to these account books, is found below:-

Our family maintains accounts. I maintain them. The accounts are written by rue and by one Tatavarti Kotiratnam of Repalle who helps me in preparing statements lor income-lax purposes. Exhibit A-29 is the day book and Exhibit A-30 is the ledger of our family. Exhibit A-4, page 30, is the entry of the receipt of P.s. .10,000. Exliibit A-5 is the entry of payment of lis. fj.200, I bore (lie stamp expenses for Exhibit A-2. Exhibit A-6 is the entry relating to the debit of Re. 0-12-0 on page 31. Tatavarti I Coliialnim is the writer of these three entries. I-was present when these entries were made. The cn''rios wire written on my direction. Exliibit A-30 is the ledger. The entries in the ledger are on page 124. All the entries in page 124 are in the writing of T. Kotiratnam.......... I was not in good health then and I asked Kotiratnam to make entries. There is a day book before Exhibit A-29. That is Exhibit A-31. There aie blank pages in Exhibit A-31. I filed Exhibit A-3.1 in Repalli District Munsil''s Court. On the date when Exhibit A-29 was to bo begun Exhibit A-31 was in Court. Therefore, Exhibit A-29 was opened afresh." In the cross-examination, he deposes thus:

I cannot say definitely when I got a return of Exhibit A-31. Exhibit A-3.1 contains writing of mine and of-Kotiratnam. Most of the entries till page 54 are in my writing. I left blank 3 pages after 31st March, 1938. I fikd Exhibit A-31 also in the criminal case in 1946. The native place of Kotiratnam is Kanagala. He is living in Repal''e. Exhibit A-29 was written by Kotiratnam once in a week by looking into separate slips of paper on which I made entries every day. As I was ill I asked Kotiratnam to make! entries in Exhibit A-29. Plaintiff one used to be moving about. He never stayed at homo. Therefore, I did not ask him to make entries. The slips of papers on which I made entries are not now with me. Entrhs in Exhibit A-30 were also made once in a week. I cannot explain the entry on page 94 of Exhibit A-30 that Rs. 540-9-8 is included in profit and loss khala. That is in the writing of Kotiratnam. Kotiratnam is our witness. He will explain it. There is profit and loss khata on the last page of Exhibit A-30. I had money-lending business in 1938. I cannot give the extent of it........

Excepting the entries relied on in Exhibits A-29 and A-30 there are no other entries in our account books showing receipt of Rs. 10,000 and its expenditure.

Now, P. W. 3, who is supposed to have made the entries which are material for the purposes of the present ease, belongs to Kanagala, though he says he has been residing at Repalle since about 1936. He claims that he prepares Income Tax accounts for P. W. 2. He says that he made the relevant em tries to the dictation of P. W. 2. He adds that he used to go to Govada once in a week or 10 days, that P. W. 2 was ill when he made the entries, that he wrote the pages in Exhibit A-29 while P. W. 2 dictated to him from slips of paper. He claims to have written similar accounts for two others in Govada, though he admits that he did not write day-books for them but only ledgers while he made day-book entries only for P. W. 2. He says that he does not remember if he prepared day-books even for P. W. 2 before Exhibit A-29.

He denied the suggestion that Exhibit A-29 was written up in one or two days. According to him, P. W. 2 was ill then for 7 or 8 months though he does not know from what he was suffering or whether he was able to move about or not. He disowns having himself copied the entries in Exhibit A-29 from slips of paper and disclaims knowledge of the truth or otherwise of the entrie,''; made by him. Tie says (hat he was receiving remuneration from P. W. 2 though he cannot say how much. It seems to us difficult to believe that this witness came from a different village about five miles away once a week to make these entries:. It is not as if P. W. 2 made no onirics whatsoever in the accounts during the period of 7 or 8 months when he is stated to have been ill. This witness, it appears to us, was brought in to support the genuineness of the accounts.

We cannot see any reason whatsoever why P. W. 1 who claims to have been living all the time in Govada cultivating lands, could not havo made entries in these accounts il'' V. \\V. 2 couM not make them on.account of his illness, especially when it was merely a question of writing io llio dictation of P. W. 2. The brothers seem to have, thought that tliere would be greater chance of the truth of the entries being believed il t!iey are sup posed to have been made by a stranger like P. W. 3. It is not as if expert assistance was necessary in making these entries though lor preparing Income Tax statements, such assistance might have been necessary. It is true that there is the seal of the Income-ta>r;Officer on the 1st pages of Exhibits A-29 and AO of the year 194.0. But even thai docs not, in our opinion, establish that these entries are genuine.

As regards the possession of the suit land, there is one curious circumstance to be noticed. The 1st Plaintiff claims to have been given possession immediately after Exhibit A-1. Now, Exhibit A-2 the agreement recites that the properties were, at its date, in the occupation of one Tummala Anjayya and others. There is nothing in Exhibit A-l to indicate any attornment by these tenants in favour of the 1st Plaintiff. Nor is there any recital that the property was taken over from those tenants by the 1st Defendant and put in the possession of the 1st Plaintiff. Then, we find that in the year 1946, there is a lease Exhibit A-10 stated to have been executed by the 1st Plaintiff on 10th May, 1946, but actually registered on 9th August, 1946 in favour of D. \\V. 5 and another.

The 1st Plaintiff and his brother being undivided, one would expect that the lease deed in respect of this property which P. W. 2 claims to belong to both and which P. W. 1, in spite of his claim that it is his separate property, admits in his deposition to have been cultivated with joint funds, should not have been executed by P. W. 2. But, P. W. 2 as already pointed out, disclaims any knowledge of its execution as if P. W. .1 acted clandestinely in executing it. This story is altogether incredible. Differing versions as to the mode of enjoyment of the land by the brothers seem to have been given in an effort to reconcile the fact that Exhibits A-I and A-2 stand in the name Of the 1st Plaintiff with the claim of P. W. 2 that it is joint family property.

Now, the position is that when the laud was sold, it was in the occupation of tenants and when disputes arc; stated to have arisen in (lie year 1946, we find tenants again on the lands. Meanwhile, it is stated by the witnesses lor the Plaintiffs that the Plaintiff 1 or Plaintiff 2 or both were cultivating the land personally while 13. W. 1 equally claims personal cultivation. Why there should have been personal cultivation during this particular period alone is not explained by either party. The evidence as to possession of either side is very unsatisfactory and the -preference given by the learned Subordinate Judge to the evidence of the Plaintiffs seems to us unjustifiable, based as it was on his view as to the burden of proof in regard to Exhibit B-8 and also based on his acceptance as to the authenticity of the accounts. Out learned brother was prepared to accept the plain-

tiffs'' version on the basis of these accounts which, as we have already stated, are not at all reliable. Further, we may notice that apart from the con-tradictions already pointed out above between the versions of P. Ws. 1 and 2 as to the cultivation of this land, the evidence of P. Ws. 4 to 7 is not quiite consistent and satisfactory. P. W. 4 says:

Plaintiff I cultivated suit land for seven years till last year.

apparently in support of the Plaintiffs'' claim that it was the 1st Plaintiff''s separate property. P.W.

5 says that prior to cultivation by Plaintiffs lessees, Plaintiff I himself was cultivating the suit land, though he explains that Plaintiff 1 cultivated because'' he remained at home and attended to the cultivation of the lands, apparently to show that he was doing it only on behalf of the family. P. W.

6 says that "in the third previous year" before his deposition Plaintiffs 2 and 3 raised crop. He admits that he was one of the accused in some rioting1 cases in that village. P. W. 7, who is the 3rd Plaintiff, claims to have cultivated the suit lands along with another three years before 1948, the year of his deposition. P. W. 8 says that after 1st Plaintiff''s purchase of the suit land, he removed the ridge between the suit land and his family land in the north and that Plaintiff 1 was cultivating the suit land.

It is thus seen that everybody speaks to the cultivation by Plaintiff 1 alone while P. W. 2, as already stated, claimed that he and the 1st plain-fill: havo been cultivating the land. If the katnam money was treated as joint family money, as apparently it was, because it appears in the family accounts and because the balance of Rs. 3,800 is admitted to have been invested as if it belonged to the family, and because the cist amount payable on the land is included in the family accounts, then there is no reason whatsoever why Plaintiff 1 alone should have cultivated the land all through as stated by most of the P. Ws. P. W. 2 in his evidence seems to have safeguarded himself against a possible exclusive claim to the suit land by the 1st Plaintiff in case of the success of the suit.

Then again, there are two or three minor circumstances which we might mention. As already stated, tire stamp papers in Exhibit A-l stand in the names of both the Plaintiff 1 and Defendant 1, a circumstance which remains unexplained. Further, though it was recited in Exhibit A-2 that the purchase price for the site on the western side should be calculated at Rs. 2,000 while that of the plots on the eastern side should be calculated at Rs. 1,500 after measurement, apart from the absence of any recital, in Exhibit A-l as to such a measurement, having taken place though s:)me of the Plaintiffs'' witnesses speak to such measurement having taken place by two persons one of whom is stated to have died and the other has not been examined-the total purchase price is stated in Exhibit A-l to have been Rs. 6,449-4-0.

We have tried to ascertain whether this amount could be related to the extents of the several plots as given in Exhibit A-l. It is agreed by both the parties before us that it cannot be explained how the purchase amount so recited in Exhibit A-l can be related to the terms of the agreement Exhibit A-2. Calculating the amount on the basis of the extents as given in Exhibit A-l with reference to (lie rates as iixed in Exhibit A-2, (here is a difference) of about its. 8 aeroi''ding to one side and a difference of about lis. 1:5 aoewdiiig to the other. But the existence of the difhvencc itsclt is admitted by both the partus. Nor is___ there any entry in (he accounts in respect of the 52 bags of paddy admitted to luive been received bom the 1st Defendant in pursuance ol (lie recilal in Exhibit A-2 by which he undertook Io pay the rent due for that year which i:c staled, lie had collected from (he tenants even before it became; duo.

Another tell-tale circumstance is tin''s very recital as to the 1st Defendant''s liability to pay the 1st Plaintiff these 52 bags which lie had received from the tenants. Though the agreement itself is dated 10th February 1939, there is no recital therein that the lands were''put in the possession of the 1st Plaintiff. On the oilr. r hand. Exhibit A-l recites that the 1st plain!iff was put in possession only on 13th July, 193;.;, the date of its execution. Why therefore the vendee shoulel get the rent for a period before he became entitled to possession under the sale seems dillieult to explain. This sounds like a recital inserted in an artificial effort to strengthen the ostensible character ol Exhibits A-l and A-2. Then again, it is stated that the 1st Defendant put up this false claim to the suit land because he was dissatisfied with the arrangement made by the 1st Plaintiff in regard to the maintenance fixed for his (the 1st Plaintiff''s) discarded first wife. The 1st Defendant is shited to be a relation ef the first wife of the 1st Plaintiff and is therefore interested in her. Now, it appears that the disputes between the; Is Plaintiff and wife were adjusted by Exhibit A-l J, dated 9th December, 1944, under which a sum of 15s. 15,000 was .paid in full Settlement of her right to maintenance. It is said however that the; 1st Defendant, to whom she was related as his brother-in-law''s daughter was not satisfied with the said maintenance and therefore, in order to extract more from the 1st Plaintiff trespassed on the suit lands. We find, now, that P. W. 1 in his deposition makes the following statements:-

My first wife has two younger brothers. Her father is alive. She has a maternal uncle and junior paternal uncle. Her father and uncles gave; trouble regarding her maintenance on (he instigation of D-l. There; was no registered nil ice demanding 1 urther maintenance.

In regard to this aspect of the rase, P. W. 2 states as follows:

We; paid lis. 15,000 le) Plaintiff one''s first wife and settled all claims by her. It. was first defendent who eleal with ns on behalf of her. Rs. 15,000 was-paid out of our family funds. There has been enmity between us and first Defendant ever since Plaintiff one cast off his first wife." There is nothing more in his evidence to exp''ain the alleged motive of the 1st Defendant in trespassing upon the suit land though the plaint itself recited that the 1st Defendant and oilier relations of 1st Plaintiff''s wife wanted "to extract by force something more- towards her maintenance" and that with, that view, the 1st Defendant trespassed on the suit land. It is difficult to see why when there are several closer relations than the 1st Defendant interested in that woman, he alone should have taken this step. And further, there are no registered notices filed "demanding a higher sum ou her behalf. P. W. 2 does not depose to any dispute as regards enhancement. Nor is there any independent evidence? to support the; case; of the 1st Plaintiff uncorroborated as it is even by that of P..W. 2.

It is admitted that the 1st Defendant was on good terms with the 1st Plaintiff till Exhibit A-Il. P. W. 1 follows up this statement by saying that even his brolhe:r and the 1st Defendant were also on gooel terms till that elay. It is difficult to imagine why persons who were on the best of terms should fall out afte;r settlement evidenced by Exhibit A-ll especially when the woman in respect of whom the dispute seems to have arisen, was only a connection by marriage. Nor does there appear to be any reason why the 1st Defendant should have trespassed .on this particular land even if the motive suggested could be said to have been established and even if it could be held to be sufficient to support such conduct. A further circumstance to be noticed is that by the date of Exhibit A-2, the 1st Defendant owed P. W. 2 (apparently as the manager of the joint family of himself and P. W. 1) a sum of Rs. 100 due under Exhibit D-17 a promissory note.

One would have thought that this sum of Rs. 100 woulel have been adjusted at the time when the; purchase money was being treated as joint family money. But it is explained that the 1st Defendant elid not agree to any such adjustment because he wanted money to pay Bullamma from whom he was buying land. Nor is the sum stated to have been adjusted six months later when Exhibit A-l was prepared. The explanation offered by P. W. 2 for such non-adjustment, though it may sound plausible so far as the date when Exhibit A-2 was executed, cannot certainly be accepted with reference to the date when Exhibit A-l came into existence. The sum of Rs. 9,000 was already paid by the 1st Defendant under Exhibit B-6 to Bullamma on the 10th of February, 1939. This sum of Rs. 100 could surely have been deducted from the sum of Rs. 254-14-0 slated to have been paid in cash by the 1st Plaintiff on 13th July, 1939.

Further if the claim of P. W. 2 is (rue that the laud was really treated as joint family land, then there is no reason why it should have been purchased in the name of the 1st Plaintiff. One can understand its having be;en so purchased if it was meant only for the 1st Defendant. But that is not. what P. W. 2 says. P. W. I, as already pointed out, in his inconsistent deposition stated that the property was cultivated with joint family funds and that the cist was paid out e;f the joint family assets. The entiles in Exhibits A-29 and A-30 are only explicable on the basis that the purchase was made from joint family monies. If that is so, the purchase could have been made either in the name of P. W. 2 alone or in the names of both the brothers. There is no point in having macle the purchase solely in the name of the younger brother when the property was meant for both. No satisfactory explanation is given in the evidence of this circumstance.

In reaching his conclusion, the learned Judge on appeal has relied upon some eu-eumslanees which we shall now mention. Ho observed that there is no explanation on the part of the 1st Defendant as to why the Plaintiffs retained possession of Exhibits A-l and A-2 and were able to produce them before the Court. This is, indeed, an important circumstance. But, it seems to us that it is not a fact entirely irreconcilable with tlio nomina-lity of Exhibit A-l. It must also be observed that .D. W. 2, when he was in the witness-box, was not asked to explain this. If Exhibit B-8 were true, there might not be considerable dillieulty in explaining it. As the learned Judge was of the view that Exhibit B-8 was not duly proved, he attached considerable significance to this aspect of,the matter. But if, as we have held, Exhibit B-8 is genuine, the Plaintiff''s possession of these documents is not necessarily inconsistent with the defence case.

Another circumstance upon which reliance was placed by the learned Judge is what lie calls "the admitted fact which is also borne out by Exhibit A-3 and that it was the 1st plain till'' that paid the cist on the land from the date of his purchase." He also noticed that an examination of the accounts produced by the 1st Plaintiff shows that the cist was found debited in the land katha maintained by the 1st Plaintiff and P. W. 2. It may be noticed that what Exhibit A-3 shows is that the cist on this land was being paid and not by the 1st pl.nnlilf on his separate account, but along with the cist on the other lands belonging to the 1st plamtilf and his brother. Now it is true that there are entries in Exhibits A-29 and A-30 which show I hat the total amount of cist so paid was debited in the accounts without making any deduction in respect of this land which must be the case il the 1st Defendant''s version that he was paying the necessary amount: into the hands of the 1st plain!ill lor paying to th-''." Village Munsif is true.

But it "Is not. correct to describe the kallia as being maintained by the 1st plaintilf and P. W. 2, because the 1st Plaintiff in his evidence, already quoted above, disowns any kind of connection whatsoever with the maintenance of accounts. Wo have already given our reasons for discrediting Exhibits A-29 and A-30. The entries are inexplicable on the basis that the suit land is the separate property of the 1st Plaintiff which is, what the 1st Plaintiff claims it to be. Moreover, the corresponding entries in Exhibits A-29 and A-30 were not marked in the Court below and the attention of the parties was not drawn to their bearing upon the case and therefore were not the subject-matter of scrutiny by the parties or their counsel. On the other hand, the evidence of P. W. 2, which has already been extracted, is that "the expenses, income and cist of suit land do net find a place in our accounts". On this point, P. W. 1 is at one point in his evidence in entire agreement with P. W. 2, when he says:

There are no entries in our accounts showing payment of cist for the suit lands.

Later, however, he contradicts himself and amends this by saying that "the income and cist are included in the entries in accounts relating to income and cist of the family lands''''. But it is now conceded in the arguments that the income1 at any rate is not included in the entries relating to the income on the family-lands. Therefore, apart from the unreliability of Exhibits A-29 and A-30, the non-inclusion of the cultivation expenses and the income from the suit lands in the entries in the accounts does considerably detract from the value to be attached to the consolidated entries relating to the cist apyable on this and the joint family lands of P-Ws. 1 and 2.

The third point made by the learned Judge is that, notwithstanding the fact that the sale deed was executed as early as 1939, the 1st Defendant did not take, any steps till now to get a reconveyance of the properties to him. In this connection, he examines the case of the 1st Defendant about his disputes with his brother having been the reason for the execution of the nominal sale deed Exhibit A-l and finds that the dispute having ended even as early as 1935, this explanation as to motive cannot be accepted. In support of his case, the 1st Defendant filed Exhibit B-22, dated 1st December, 1935, reference to arbitration of the disputes between him and his brother, Satyanarayana and Exhibit B-15 a registered notice, dated 23rd December, 1944, issued to him by a pleader on behalf of his brother, and a relinquishment deed Exhibit B-2, dated 15th August, 1945, executed by him in favour of the latter. Exhibit B-22 was exhibited in pursuance of the order of the learned Judge in appeal giving leave to the parties to adduce further evidence in the case. The learned Judge is of the opinion that Exhibit B-22, the alleged reference to arbitration was got up subsequently and was not written on the date it bears. He thinks that the 1st Defendant should have exa-

mined the attestors to Exhibit B-22'''' "instead of merely relying upon the uncorroboratcd testimony of his own brother-in-law D.W. 10 who produced this document."

Whatever it. may be, it is clear from Exhibit B-15 which is of the year 1944 that there were disputes between the 1st Defendant and his brother despite the earlier partition among the members of their family as evidence by the original registered partition deed'', Exhibit A-12. Exhibit B-15 complains that the 1st Defendant had given possession of a particular item of land to Satyanarayana his brother as early as 1939 in pursuance of an award, dated 5th December, 1935, but had not yet executed a registered deed of conveyance of that item. Indeed, we find that a conveyance was actually executed as evidenced by Exhibit -2 in August, 1945. Unless Exhibits B-2 and B-15 are also discredited as having been got up with a view to support the 1st Defendant''s case, one thing is perfectly clear that in spite of Exhibit A-12, there were some differences between the 1st Defendant and Satyanarayana which were partly adjusted in 1939 and completely adjusted only in 1945. The suggestion on behalf of the 1st..&;.

Defendant that the award was in the year 1939 need not necessarily be right. But it cannot, fairly be stated that there were no disputes between the brothers or that the disputes were completely and satisfactorily settled by the year 1935. Appatently, if the 1st Defendant was unwilling to act according to the award and was inclined to raise trouble, it cannot be said that the brother did not continue to be at variance despite the award. If Exhibit B-15 is to be accepted, then, despite the award, the possession of the property was given only four years later and an actual

conveyance made only six years after the delivery of possession. We think therefore that this Circumstance does not tell against the case of the

1st Defendant. The learned Judge observes also that "Even if there was a dispute, there was no impediment for Defendant one to have obtained the conveyance from Bullamma directly in the name of the first plaintiil'' and there is also no reason why the conveyance Exhibit A-l was executed in the name of the first Plaintiff and not in the name of his brother P.W. 2 or both of them jointly."

The case of the 1st Defendant is that Bullamma was unwilling to execute a sale deed directly in the name of the 1st Plaintiff as there were quarrels between the 1st Plaintiff and his first wife and that Bullamma was interested in her. The explanation cannot be said to be altogether satisfactory. But, it is difficult to say that it could not have been true. Thus, there is the circumstance that Exhibit A-l was executed in the name of the 1st Plaintiff alone. The 1st Defendant explains that it was at the suggestion of P.W. 2, that it was so executed. And, in any case, its execution in favour, of the 1st Plaintiff alone needs explanation for the point of view of the Plaintiffs also, because of the claim of P.W. 2 that the property was purchased for both and there are one or two sentences in the- self-contradictory evidence of P.W1. 1 which support that case. When the property was intended for both the brothers, why was it pun-based in the name of the younger brother ? P.W. 2 would say that it was. because the purchase money was paid out of P.W.-l''s dowry amount, fiui, that dowry amount was entered in the joint family accounts and was never treated, already shown, as the separate fund of P.W. I. The learned Judge finds that there is no reason for taking the document in the name < f the 1st Plaintiff alone unless if bo that it was intended to be. treated as the separate property of the 1st Plaintiff. Tint Exhibits A-3, A-29 and A-30 and the evidence of P.W. 2, together with the admission of P.W. 1 here and there clearly indicate that the purchase was for the family.

Apart from the cireuslaneos noted above, the learned Judge places reliance upon the evidence adduced on behalf of the Plaintiffs regarding the possession of the property and. he says that "it is undoubtedly better than the meagre evidence adduced on behalf of the Defendants." We have already discussed this aspect of the matter in some detail and we do not propose to add anything to what we have already stated.

As to the measurements of the lands during the period between the dates of Exhibits A-l and A-2 which is another circumstance on which reliance is placed by the learned Judge we must observe that the amount of the purchase money as determined by Exhibit A-l cannot be reconciled with the extents therein of the various plots and the rate per acre fixed in Exhibit A-2. It may also be noted it is a circumstance which has not been brought to the notice; of the learned Judge that the 1st Defendant denies any such measurement having taken place and there is no proof aliunde apart from the oral testimony of P. Ws. 1 and 2. There is no reference to any such measurement either, as already pointed, out, in Exhibit A-l. The learned Judge notices that:-

No doubt it might somewhat look strange that a sum of Rs. 10,000 should be suddenly brought and credited in the'' accounts of the family. But, if that circumstance stood, alone, there may be difficulty in accepting the case of the 1st Plaintiff that the consideration for this sale came out of the consideration for the katnam which was then paid by the father-in-law." He however reached the conclusion which he ultimately did because, in his opinion, "the case of the 1st Plaintiff was also supported by the accounts which are believed by the trial Judge from whose finding he saw no reason to differ.

The learned Judge also examined the Defendants'' case as to how the 1st Defendant made up the sum of Rs. 0,000 for paying Bullamma under Exhibit B-(i. lie came ultimately to the conclusion! that the evidence does not establish how the1 1st Defendant could have got that sum except from the 1st Plaintiff. But, if the 1st Plaintiff''s casa as to his having received'' the katnarn amount ora that date cannot be accepted, there is very little to choose between the case of the 1st Plaintiff and that of the 1st Defendant as to how each. was in possession of the necessary funds - P.W. 1 for the purposes of Exhibit A-l and the 1st Defendant for those of Exhibit B-6. The learned Judge then proceeds to discuss the genuineness of Exhibit B-8. He expresses his opinion that Exhibit B-8 is "an artificial document brought into existence with a view to support the present case of the first Defendant that Exhibit A-l is a nominal transaction and that its very artificiality brands it as unreliable".

He seems to think that it embodies the present case of the 1st Defendant and reads more or less like a written statement... It seems to us that if there arc otherwise good reasons to be satisfied about Exhibit B-8, this circumstance does not weigh against it. If the document-writers are acquainted with the language of pleadings in Court, they may freely import that language into the documents they draft. Now, both the 1st Defendant and P.W. 2 - the latter claims that he was alone present and P.W. 1 was not at the time of the execution of Exhibit A-2-are adepts in litigation and either of them may have thought of the language to be adopted in Exhibit A-2. We must not forget that nominal, transactions are very usual in this country and so long as they- arc not discountenanced by law, it is no wonder that they are frequently resorted to for the flimsiest of reasons. Having regard to the several circumstances of the case which we have discussed in the earlier part of our judgment, we have come to the conclusion that the Plaintiffs must fail not necessarily because Exhibit B-8 is proved to be true by the 1st Defendant but because the Plaintiffs have not established to the satisfaction of the Court the circumstances in which the signatures of P. Ws. 1 and 2 came to be put upon that document. We must confess that we are not altogether satisfied with the conclusion we have reached. But, we can have little regret if this is the result of the failure on the part of the Plaintiffs to be fair with the Court and their adoption of what we consider improper tactics in the conduct of their case.

Ire the result, this appeal succeeds and the suit of the Plaintiffs will stand dismissed with costs throughout.