Ranganayaki v. Kasinatha Padayachi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.08.2011CORAMTHE HON'BLE MR.JUSTICE S.NAGAMUTHUSecond Appeal No.1619 of 1996Ranganayaki ... Appellant-Versus-1.Kasinatha Padayachi2.Kumar ... RespondentsThis second appeal is filed against the judgment and decreedated 29.03.1996 made in A.S.No.166 of 1994 on the file of thelearned Principal District Judge, Villupuram, reversing the judgmentand decree dated 24.12.1993 made in O.S.No.379 of 1990 on the file ofthe District Musnif, Tirukoilur. For Appellant : Ms.J.Starli for Mr.V.Raghavachari For Respondent : Mr.K.A.Basheer Ahmed for R1JUDGMENTThe defendant in O.S.No.379 of 1990 on the file of the learnedDistrict Munsif, Tirukoilur, is the appellant. The plaintiff is the1st respondent and the 2nd defendant is the 2nd respondent. Theplaintiff filed the said suit for recovery of a sum of Rs.6,000/-with interest @ 12% p.a. due under a promissory noted dated09.03.1988. By decree and judgment dated 24.12.1983, the learnedDistrict Musnif dismissed the suit. As against the same, theplaintiff preferred an appeal in A.S.No.66 of 1994. By decree andjudgment dated 29.03.1996, the learned Principal District Judge,Villupuram, allowed the appeal, set aside the decree and judgment ofthe trial court and decreed the suit as prayed for. As against thesame, the 1st defendant is, now, before this court with this secondappeal.2. The case of the plaintiff in brief is as follows:- On09.03.1988, the husband of the 1st defendant by name Karunakaranborrowed a sum of Rs.6,000/- from the plaintiff and executed a https://hcservices.ecourts.gov.in/hcservices/ promissory note thereby promising to repay the same on demand withinterest at 12% p.a. Subsequently, Karunakaran passed away leavingbehind the 1st defendant to succeed to his estates. The 1st defendanthas inherited the properties of the deceased Karunakaran. Thereafter,a demand was made by the plaintiff to the 1st defendant for therepayment of money due under the promissory note. The 1st defendantfailed to repay the amount. Therefore, the plaintiff filed thepresent suit for recovery of money.3. The 2nd defendant remained ex parte4. The 1st defendant filed a written statement wherein , hedisputed the very borrowal of the amount by her husband Karunakaranand the execution of the promissory note. According to her, themother in law of the 1st defendant by name Mrs.Nagarathinammaldeclined to give share in the property in favour of the 1st defendant.This has resulted in suit in O.S.NO.1001 of 1989. The plaintiff isthe sister's son of Mrs.Nagarathinammal. It is because of the saidenmity, the promissory note has been manufactured falsely to make theclaim. Therefore, according to her, the suit is not sustainable andthe same is, therefore, liable to be dismissed.5. Based on the above pleadings, the trial court framedappropriate issues. During trial, on the side of the plaintiff, 4witnesses including the plaintiff were examined as P.Ws.1 to 4 and 3documents were exhibited as Exs.A.1 to A.3. On the side of thedefendants, 2 witnesses were examined as D.Ws.1 and 2 and 4 documentswere marked as Exs.B.1 to B.4. Having considered the above materials,the trial court dismissed the suit. As against the same, theplaintiff preferred an appeal in A.S.No.66 of 1994 before the learnedPrincipal District Judge, Villupuram. Pending enquiry, on the side ofthe plaintiff ,an additional documentary evidence was sought to beexhibited. The learned Principal District Judge accepted the requestmade by the plaintiff and allowed the document namely, pass book, tobe exhibited as additional documentary evidence under Ex.A.4. Havingconsidered the available records, by judgment and decree dated29.03.1996, the learned Principal District Judge allowed the appeal,set aside the decree and judgment of the trial court and decreed thesuit as prayed for. That is how, the 1st defendant is, now, beforethis court with this second appeal.6. When the second appeal was admitted, this court framed thefollowing substantial questions of law:-(1) Whether the order of the lower appellatecourt in holding that the deceased Karunakaran hadexecuted the said pronote is not based on anyevidence on record and whether it should not haveapplied the principle governing the burden of proof https://hcservices.ecourts.gov.in/hcservices/ of passing of consideration after the death of thedeceased promissor is on the promisee and whetherthe lower appellate court should not have appliedthe principles laid down in 1937 (1) M.L.J. 543[Varadhachari and Mockett JJ] properly andcorrectly?(2) Whether the lower appellate court ought notto have held the suit transaction is fraudulent ,especially when the Class I heirs are not made partyto the proceedings and on the circumstances of thecase the partition action filed by the appellant ispending against the mother of the deceased?7. I have heard the learned counsel on either side and alsoperused the records carefully.8. Admittedly, the suit promissory note was not executed by the1st defendant. It is alleged that it was executed only by the husbandof the 1st defendant. After a few days of execution of the suitpromissory note, it is alleged that Karunakaran died. When theexecution of the very promissory note and the borrowal of the moneyunder the same is disputed, the burden is heavily upon the plaintiffalone to prove that the deceased Karunakaran borrowed the money forwhich he executed the promissory note. According to the learnedcounsel for the appellant, the first appellate court has insteadimposed the burden on the 1st defendant to disprove the execution ofthe promissory note. The learned counsel in this regard relies on ajudgment of this court in Anumolu Narayana Rao Minor and another bytheir mother and Guardian Anumolu Ramadevamma v. GhattarajuVenkatappayya and another, 1937 (1) MLJ 543 wherein this court hasheld that when the claim is for recovery of money due underpromissory note from the legal heirs of the deceased executant , theburden is upon the plaintiff to prove that the money was in factborrowed by the deceased and the promissory note was executed by him.Applying the said principle, we have to now analyze as to whether theplaintiff has proved that the deceased Karunakaran borrowed money andexecuted the suit promissory note.9. As rightly pointed out by the learned counsel for theappellant, during cross examination, regarding the source of moneyfor lending the same to the deceased Karunakaran , the plaintiff hasstated that he had money in his account in the bank and one day priorto the execution of the promissory note, he withdrew from the bankand accordingly, he paid the same to the deceased Karunakaran at thetime when the promissory note was executed. The trial courtdisbelieved this version and accordingly dismissed the suit. However,during the pendency of the appeal suit, the plaintiff has produced abank pass-book and the same has been exhibited as Ex.A.4. Thisdocument has been produced by the plaintiff with a view to prove that https://hcservices.ecourts.gov.in/hcservices/ the money was withdrawn by him one day prior to the execution ofpromissory note and the same was paid on the date of execution of thepromissory note by him to the deceased Karunakaran. The firstappellate court on perusal of the same has held that a sum ofRs.4,000/- had been withdrawn from the bank just a few days prior tothe date of execution of the promissory note and the plaintiff wouldhave paid the balance of money from his pocket. This conclusionarrived at by the first appellate court , in my considered opinion,is perverse. A perusal of Ex.A.4 would go to show that one day priorto the execution of the promissory note , that was on 08.03.1988, noamount was withdrawn from the bank. The bank pass-book further showsthat on 03.03.1988, a sum of Rs.4,000/- was withdrawn and the balanceof amount lying in the account was only a sum of Rs.68.25 paise.Thus , as per the bank pass-book, as on 08.03.1988, there was apaltry amount of Rs.68.25 paise in the bank account of theplaintiff. Thus, the contention of the plaintiff that he withdrewRs.6,000/- on 08.03.1988 from his account and he paid the same on09.03.1988 cannot be true at all. This vital aspect has not beenexplained away by the plaintiff. Thus, the plaintiff has failed todischarge his burden of proving that he had enough money to lend tothe deceased Karunakaran as on 08.03.1988 and that he paid the sameon 09.03.1988 and further the suit promissory note was executed bythe deceased Karunakaran for the said purpose. Thus, I have got nohesitation to hold that the judgment of the first appellate court isperverse inasmuch as the first appellate court has imposed the burdento disprove the execution of the promissory note on the 1st defendantinstead of throwing the burden at the hands of the plaintiff toprove the lending of money and execution of the suit promissory note.If the established legal principle regarding the burden of proof isapplied, it is crystal clear that the plaintiff has failed to provethat the deceased Karunakaran borrowed Rs.6,000/- and executed thepromissory note. In such view of the matter, the decree and judgmentof the first appellate court cannot be allowed to sustain.Accordingly, I answer both the substantial questions of law in favourof the appellant/1st defendant and thus the second appeal mustsucceed.10. In the result, the second appeal is allowed, the decree andjudgment of the first appellate court is set aside and that of thetrial court in O.S.No.379 of 1990 dismissing the suit is restored.Considering the facts and circumstances, there shall be no order asto costs. Sd/Asst. Registrar/true copy/Sub Asst.Registrarkmk https://hcservices.ecourts.gov.in/hcservices/ To1.The Principal District Judge, Villupuram.2.The District Musnif, Tirukoilur, Villupuram District.+ 1 cc to Mr.V. Raghavachari, SR.53255Second Appeal No.1619 of 1996JRG(CO)Eu 18.10.11