Research › Browse › Judgment

Madhya Pradesh High Court · body

1999 DIGILAW 437 (MP)

Basanti Bai v. Abhay Kumar

1999-07-02

S.B.SAKRIKAR

body1999
Appellant-Defendants have directed this appeal against the judgment and decree dated 21st January, 88 rendered by I ADJ Mandsaur in CS No. 26B of 86 thereby passing a decree for Rs. 28,426,70 with costs, interest pendente lite and future interest at the rate of 6% per annum till realisation of the decreetal amount in favour of the respondent/plaintiff and against appellants. Briefly stated the facts of the case are that original/defendant deceased Ambalal purchased four gold bangles and one gold waist band from the plaintiff-respondent Abhay kumar for Rs. 28,426,70 and the said ornaments were given to the deceased Ambalal and obtained his signature on a chit describing the cost weight and other details of the said ornaments. Deceased Ambalal on this chit endorsed that he shall pay costs of the said ornaments by Wednesday or Thursday and put his signature below the said endorsement. Despite several requests of the plaintiff deceased Ambalal did not make payment. Ultimately, notice dated 17.6.86 was served on deceased Ambalal demanding the cost of the said ornaments but even after receipt of the said notice, the amount was not paid. As such suit for the recovery of the said amount alongwith interest by way of compensation, has been filed against Ambalal. During pendency of the suit original defendant/ Ambalal died and the present appellants have been substituted as defendants as LRs of the deceased. The appellant/defendants have filed written statements and denied plaintiff's case in toto. Defendants have also pleaded that they are not liable for the payment of alleged debt due against their father as the debt was not incurred for the legal necessity of the family. It is also averred that they are not liable to pay any sum found due against deceased Ambalal as they are not possessed of any property of the deceased. Learned trial Court, on the basis of the pleadings of the parties framed issues and on evaluating the evidence of the parties available on record, allowed the plaintiff's suit and passed decree against the defendant/appellants as indicated above. Aggrieved the appellants have filed this appeal against the Impugned judgment and decree of the trial Court. Learned counsel for the appellants contended that from the evidence of the plaintiff it is not proved that the deceased/Ambalal obtained four gold bangles and one waist band amounting to Rs. Aggrieved the appellants have filed this appeal against the Impugned judgment and decree of the trial Court. Learned counsel for the appellants contended that from the evidence of the plaintiff it is not proved that the deceased/Ambalal obtained four gold bangles and one waist band amounting to Rs. 28,426.70 from the plaintiff and agreed to pay the said amount to the plaintiff on Wednesday or Thursday. In this text the counsel submitted the alleged chit bearing signature of the deceased (Ex.P-I) is not admissible in evidence for want of stamp duty. The other contention of the counsel is that from the evidence available on record, it is not established that the defendant/appellants inherited and possessed of any property of the decesed and liable to pay the alleged debt due against the deceased/Ambalal. As such the impugned decree passed against the appellants deserves to be set aside. As against this, learned counsel for the respondent supported the Impugned Judgment and decree and contended that the trial Court, on proper appreciation of the evidence available on record, decided Issues No. 1 to 4 m favour of the plaintiff and has committed no error in passing the impugned decree against the appellants. I have considered rival submissions of the counsel and carefully perused the record as also the evidence available on record of the trial Court. Abhay Kumar (PW 1) in his statement has specifically stated that he got prepared four gold bangles and one gold waist band but she did not like the said ornament and as deceased Ambalal was in need of the said ornaments to be gifted to his daughter in the marriage he took the said ornaments and promised to pay the price by Wednesday or Thursday but did not do so and thereafter on demands and service of notice also the amount was not paid. The statement of Abhaykumar with regard to demand of price of the said ornament from Ambalal stands corroborated, from the statement of Daluram (PW 2), The statement of Abhaykumar that deceased Ambalal received four gold bangles and one waist band from him and promised to pay the price by Wednesday or Thursday by putting his signature on a chit Ex. P-1 also corroborated from the perusal of the said chit. P-1 also corroborated from the perusal of the said chit. On perusal of Chit, Ex.P-1, it emerged that it is in the form of bill with regard to weight and price of the aforesaid ornaments on which deceased Ambalal put his signature with the assurance that the said amount of the ornaments will be paid by Wednesday or Thursday. In my opinion, looking to the nature of the said ornaments, it cannot be held that the document is inadmissible in evidence for want of any stamp duty. Even otherwise admissibility of the document cannot be challenged at this stage in the light of the Provisions of section 36 of the Stamps Act. As such the trial Court has committed no error in deciding issues No. 1 and 2 in favour of the plaintiff and against defendant/appellants. On perusal of the statements of Kailash (DW 1) Laxminarayan (DW 2), it is not proved that the deceased possessed of no property of his own and no property of the deceased is inherited by the appellant after death of their father Ambalal. In para 3 of the cross-examination, PW 1 Kailash has admitted that he is living in the same house in which his father Ambalal expired. He also admitted that his brothers Laxminarayan and Jaiprakash and mother Basantbai are also living jointly in the same house after the death of Ambalal. In view of the aforesaid statement of Kailash the contention of the counsel for the appellants has no force that the deceased was not possessed of any property of his own and on the death of deceased Ambalal no property is inherited by the appellants. In my considered opinion the trial Court has committed no error in deciding issue No.3 against the appellants as also in passing the impugned decree against the appellants. In view of the facts of the case as also the evidence available on record, the trial Court has committed no error in passing the impugned decree in favour of the plaintiff and against defendant/appellants. The judgment and decree of the trial Court is well founded and based on proper appreciation of the evidence available on record requiring no interference in this appeal. Consequently, this appeal being devoid of any merit and substance, is accordingly dismissed affirming the impugned judgment and decree of the trial Court. The judgment and decree of the trial Court is well founded and based on proper appreciation of the evidence available on record requiring no interference in this appeal. Consequently, this appeal being devoid of any merit and substance, is accordingly dismissed affirming the impugned judgment and decree of the trial Court. The appellant/defendants shall bear their own costs as also pay the costs of the respondent. Counsels' fee as per schedule if certified. Decree be drawn up accordingly.