9911796707
TMI Blog1966 (12) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... he took over as his concubine the plaintiff who was herself a married woman. The plaintiff begot a son and a daughter to Anjanna Reddy. The latter executed a relinquishment deed, Ex. B-4 dated 4-5-1943 by which he relinquished his share in the joint family property entirely in favour of his father, Thimmappa. Subsequently Anjana Reddy issued a notice, Ex. A-2 dated 26-9-43 alleging that the relinquishment deed had been executed under coercion and was not valid. But all the same he did not choose to cancel that deed of relinquishment. Ultimately, he died on 30-1-1948. He left behind a minor legitimate son Venkatarama Reddi by his wife in addition to his (Anjana Reddy's) own parents. Thimmappa himself died in about 1951 or 1952. Later, Venkatarama Reddi died. Ultimately, the plaintiff filed the suit on 26-6-1957 in forma pauperis and was originally numbered as OP. No. 50 of 1957. 3. The contentions in the plaint were to the following effect. The plaintiff was the permanently kept concubine of Anjana Reddy. She and her children were maintained by Anjana Reddy till the latter died and after the death of Anjana Reddy Thimmappa maintained the plaintiff and her children and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional issue No. 3, the learned subordinate Judge found against the plaintiff. On issue No. 1 he held that the plaintiff was not the permanently kept concubine or Avaruddha stri of Anjana Reddi. In view of that finding he did not decide the last portion of issue No. 1 viz., as to what was the rate of maintenance. 7. In appeal the learned District Judge called for a finding from the learned subordinate Judge as to the quantum of maintenance which would be reasonable and proper if the plaintiff were held to be entitled to maintenance. Accordingly, the learned subordinate Judge submitted a finding fixing past maintenance at ₹ 15 per month and future maintenance at ₹ 30 per month. 8. Three points for decision were formulated by the learned District Judge as follows:-- 1. Whether the plaintiff was the permanently kept concubine of Anjana Reddy and therefore entitled to maintenance from his properties: 2. If so, what is the rate of maintenance to which she is entitled, and 3. Whether the relinquishment deed executed by Anjana Reddy was a sham and nominal transaction. 9. On point No. 3, the District Judge agreed with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall He to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds namely: X X X X X X (c) a substantial error or defect in the procedure provided by this code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. Order 41, Rule 31 (a) C. P. C. runs as follows: The judgment of the appellate Court shall be in writing and shall state- (a) the points for determination (b) the decision thereon X X X X x On additional issue No. 3 the learned subordinate Judge, after careful discussion of evidence, in paragraph 12 of his judgment Have a finding against the plaintiff. In the appeal memo in A. S. 7 of 1959 before the learned Dist. Judge, grounds Nos. 12 and 13 run as follows: '12. the lower Court ought to have held that the plaintiff was being maintained by Thimmappa, the donee of Anjana Reddy; 13. the lower Court ought to have held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jaggu Ram. AIR 1923 Lah 124 at p. 125 a contention was raised before a division bench of Lahore High Court that the appellant in the second appeal was entitled to have the case remanded in order that the evidence of one remaining witness may be recorded. The learned judges observed as follows: In Clause 9 of the memorandum of appeal presented to the district judge the appellant did state that the lower Court had not taken all his evidence. The judgment of the learned district judge is silent on the point and counsel urges that the point must have been pressed before the district judge, who must have overlooked it or have failed for some other reason to record a finding. He concedes that it was the duty of the District Judge to record such a finding and he has not supported his ground of appeal by an affidavit from the counsel in the District Court to the effect that he did not give up the point and did press it. In Section 114 of the Evidence Act it is laid down that the Court may presume that indicial and official acts have been regularly performed, a presumption which like all other presumptions may be rebutted but unless rebutted is conclusive. At page 747 of Woodroff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of an appellate Court should show on the face of it that the points in dispute were clearly before the mind of the judge and that he exercised his own discrimination in deciding them. 19. In Ram Lal v. Dhirendra Nath, AIR 1943 PC 24 the Privy Council observed that since findings of fact by the first appellate Court are to be treated as final they should at least be clear and specific--not ambiguous or inferential and that a general approval to the views of the trial Court would not necessarily incorporate all its findings in detail--especially if accompanied by language which cast doubt on a particular point. 20. In Gutta Venkayya v. Venkata Rattama, AIR 1938 Mad 253, the Madras High Court observed that it was not incumbent upon the appellate Court to repeat in extenso the arguments of the trial judge which it accepted but the party was entitled to a considered opinion of the appellate tribunal and that it was not the first Court's view but that of the second Court that was final if the question was one of fact 21. In Yeshwant v. Walchand, , the Supreme Court observed that if the facts proved and found as established were sufficient to make out a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealt with all the points which had been urged before it by mentioning them as points for decision and also by giving decision on each point. This presumption is rebuttable. One wav of rebuttal is by an affidavit by an advocate appearing for the appellant in the lower appellate court to the effect that he actually urged a contention which would necessitate the framing up of a point on that contention though the judgment makes no reference to such contention. In the absence of any such rebuttal the above presumption stands. On the other hand there is no presumption that the advocate for the appellant pressed and urged every one of the grounds mentioned in the memo of appeal. It is open to an advocate at the time of argument to press or not to press any of the grounds which are mentioned in the memo of appeal. The advocate is presumed to know the strength or weakness, regarding each ground mentioned in the memo of appeal, its having or not having an adequate support in the evidence or in law and the necessity or desirability of pressing such ground or of abandoning it. In the present case, there is an initial presumption that the alleged grounds Nos. 12 and 13 which were mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
