Arising of presumption about genuineness of thirty years old documents.

Panchapakesa Ayyar, J.-The first appellant here (since deceased) was the plaintiff in O.S. No. 20 of 1944, on the file of the Sub-Court, Coconada. He †7th March, 1949. had filed that suit for a declaration that he was the nearest reversioner of one Gadi Venkataratnam and for the recovery of the suit properties, which had belonged to the said Venkataratnam, from the 1st respondent, who was claiming to be the validly adopted son of Venkataratnam, and from the other respondents who were alienees or tenants in respect of the properties. He had attacked the adoption of the 1st respondent as invalid, and the will dated 13th December, 1896, said to have been executed by the said Venkataratnam, as not genuine and as not executed in a sound and disposing state of mind and as therefore not conferring any authority on Viyyamma, Venkataratnam’s widow, to adopt. He had contended turner that, even if the will was genuine, the adoption was not in accordance with the authority conferred in the will, and that Exhibit D-9, the agreement dated 15th May, 1897, executed in Viyyamma’s favour by Surayya and Gopalakrishnamma, two nearest sapindas, authorising her to adopt any one she liked if they did not get a second son in ten years to give in adoption, was vitiated by improper motives and fraud, as executed for their own personal gain and in fraud of his reversionary interests, and was, therefore, not binding on him. The original of the will dated 13th December, 1896, was not produced in Court, and the ist defendant alleged that it was lost, and produced Exhibit D-8 a registration copy of it, obtained as early as 1905, and that was marked in the lower Court with the consent of both sides. The lower Court held that the execution of the original and its genuineness were proved by the production of this ancient registration copy as well as by the evidence of D.W.5 that his father had gone to Venkataratnam’s house to attest the original. It held further that the will might on the strength of the production of this ancient copy be presumed to have been executed in a sound and disposing state of mind. Relying on the evidence of D.Ws.2 to 6, eye-witnesses to the factum of adoption, and on the recitals in the adoption agreement in Exhibit D-7, it held that the factum of the adoption of the 1st defendant, Viyyamma s sister s son, by Viyyamma in 1915, with Datta Homam and giving and taking and other formalities, had been fully proved. In that view, it dismissed the plaintiff’s suit with costs as against the contesting defendants 1, 16, 17 and 19 to 21. It, however, at first, decreed the suit in favour of the plaintiff with mesne profits as against the ex parte defendants 2 to 9, 10 to 15 and 18, who were tenants and alienees in possession of some of the suit properties. An application under sections 151 and 152, Civil Procedure Code, was put in by the 1st defendant on 3rd January 1945, to cancel the decree against the ex parte defendants, as it was passed by accidental slip and omission and was against the definite finding of the Court that the plaintiff had no right to question the alienations of Viyyamma and to dismiss the suit as against them also. The plaintiff, of course, opposed this petition. But the lower Court allowed the petition and dismissed the suit as against the ex parte defendants also by an order, dated 17th January, 1945. This appeal is against that order of dismissal also. 1 he and and 3rd appellants are the plaintiff’s sons and have been brought on record as the legal representatives of the 1st appellant.

To understand the case, the following geneological table may be found useful.

It will be seen from the table that but for the adoption of the 1st defendant by Viyyamma in 1915, the plaintiff, Venkataratnam, and his sons, the second and third appellants, will succeed to the properties of the deceased Venkataratnam as the nearest reversioners. So, the all-important question is whether the adoption of the 1st defendant is true and va