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2008 DIGILAW 2118 (PNJ)

Kaka Singh v. Krishna Devi

2008-12-15

RAKESH KUMAR JAIN

body2008
JUDGMENT Rakesh Kumar Jain, J.:-The defendant is in appeal against the judgment and decree of the first Appellate Court whereby suit of the plaintiffs for recovery has been decreed. 2. In this appeal, the defendant-appellant has raised two questions of law: (i)Whether the suit can be filed by the legal representatives in respect of the recovery of a debt without obtaining succession certificate in view of the provisions of Section 214 of the Indian Succession Act, 1925? (ii)Whether pronote Ex.P1 is a paper transaction in the absence of proof of the capacity of the loaner which could prove the payment of consideration? 3. In brief, the facts of the case are that defendant Kaka Singh took a cash loan of Rs.3 lacs from Pawan Kumar on 6.12.1995 after executing a pronote (Ex.P1) and receipt (Ex.P2) on interest @ 1.50% per month. Pawan Kumar (Loaner) died on 16.12.1995 and his legal representatives filed the present suit on 30.11.1998 for recovery of Rs.4,60,000/- on account of principal amount of Rs.3 lacs and interest of Rs.1,60,000/-. Notice of the suit was issued to the defendant-appellant. He denied that he had taken the cash loan of Rs.3 lacs from Pawan Kumar by executing a pronote and receipt in the presence of the marginal witnesses. It was alleged that pronote is without consideration. It was further alleged that pronote and receipt are the result of fraud and misrepresentation because he used to sell his agricultural produce at the shop of Parshotam Dass in Grain Market Nabha for about 12/13 years but he never took loan from Pawan Kumar as he has no dealing with him. It was also alleged that when the defendant was selling his agriculture produce at the shop of Parshotam Dass he used to obtain the thumb impression of defendant on blank papers on the pretext of paying the price of the crop. The pronote and receipt were denied on the ground of fraud and misrepresentation. 4. The plaintiff filed replication controverting the averments made in the written statement and reiterated the stand taken in the plaint. 5. On the pleadings of the parties, following issues were framed by the trial Court : 1) Whether defendant took a cash loan of Rs.3 lacs from Pawan Kumar at the interest rate of Rs.1.50% per month on 6.12.95 and executed a pronote and receipt in his favour? OPP. 5. On the pleadings of the parties, following issues were framed by the trial Court : 1) Whether defendant took a cash loan of Rs.3 lacs from Pawan Kumar at the interest rate of Rs.1.50% per month on 6.12.95 and executed a pronote and receipt in his favour? OPP. 2) Whether the plaintiff is entitled to recovery as prayed for? OPP. 3) Whether the suit is maintainable in the present form? OPP. 4) Whether the plaintiff has locus standi and cause of action to file the present suit? OPP. 5) Whether the pronote and receipt are result of fraud and misrepresentation and are without consideration? OPD. 6)Whether there are material alterations in the pronote and receipt? If so, its effect? OPD. 7)Whether the suit is barred under Section 214 of the Indian Succession Act? OPD. 7-A: Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP. 8)Relief. 6. The plaintiff examined PW1 Jaspal Rai, attesting witness of the pronote and receipt, PW2 Ram Nath, Scribe and attesting witnesses of the pronote and receipt and PW3 Krishan Devi. On the other hand, defendant himself appeared as DW1. 7. During the trial, the plaintiffs/legal representatives of Pawan Kumar filed an application on 6.6.2000 for obtaining succession certificate which was granted and was tendered in evidence as Ex.P3 before the trial Court. 8. The learned trial Court decided issues No.1, 2 to 4 against the plaintiff, issues No.5 and 6 were not pressed by the defendants, therefore, these issues were decided against the defendants and in favour of the plaintiff. Issue No.7 was decided in favour of the plaintiff by the trial Court holding that legal representatives of plaintiff has already obtained succession certificate No.17 dated 6.6.2000 from the competent Court of law. Issue No.7-A was also decided against the defendant and in favour of the plaintiff but in nut shell, the suit was dismissed. 9. The first Appellate Court reversed the finding of the trial Court on issue No.1 and it was held that the execution of pronote Ex.P1 and receipt Ex.P2 is fully proved on record as it has been proved through the attesting witness and the Scribe. It was also held that so far as issue No.5 is concerned neither it has been proved nor any evidence has been led that document has been got executed by playing fraud and misrepresentation. It was also held that so far as issue No.5 is concerned neither it has been proved nor any evidence has been led that document has been got executed by playing fraud and misrepresentation. The first Appellate Court has thus, decreed the suit as prayed for by the plaintiff. 10. Sh.Harsh Aggarwal, learned counsel appearing on behalf of the appellant has vehemently contended that finding of the trial Court on issue No.7 is perverse because legal representatives of deceased Pawan Kumar had no locus standi to file the suit as they were not armed with succession certificate before filing of the suit. 11. In this regard, Sh.Parveen Kumar, learned counsel appearing for the respondents has contended that provisions of Section 214 of the Indian Succession Act, 1925 (for short ‘the Act’) does not talk of filing of the suits but it talks of the decree. In order to appreciate the argument raised by the counsel for the parties, it is necessary to notice the provisions of Section 214 of the Act, which is reproduced as under: “Proof of the representative title a condition precedent to recovery through the courts of debts from debtors of deceased persons – (1) No court shall - (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof; or (b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming, of - (i)a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or (ii)a certificate granted under section 31or section 32 of the Administrator General’s Act, 1913 (3 of 1913) and having the debt mentioned therein, or (iii)a succession certificate granted under Part X and having the debt specified therein, or (iv)a certificate granted under the Succession Certificate Act, 1889 (7 of 1889), or (v)a certificate granted under Bombay Regulation No.VIII of 1927, and, if granted after the first day of May, 1889, having the debt specified therein. (2)The word “debt” in sub section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.” 12. (2)The word “debt” in sub section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.” 12. Insofar as the contention of the learned counsel for the appellant is concerned, it is admitted fact that suit was filed by the legal representatives of deceased Pawan Kumar (Loaner) without obtaining succession certificate but it is also an admitted fact that same was obtained during the pendency of the suit and was tendered in evidence as Ex.P3. A bare reading of the aforesaid provision shows that succession certificate is required at the time of passing of the decree and not at the time of filing of the suit. The language of the provision is plain and simple which provides that no court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof. The provision does not say that no suit shall be filed by such a person but it only says that Court shall not pass a decree unless a succession certificate is tendered as provided under Section 214 of the Act. 13. In view of the above, I do not find any merit in the aforesaid contention of the learned counsel for the appellant. 14. It is further contended by the learned counsel for the appellant that the plaintiff could not prove the capacity of the loaner for the purpose of extending loan to the defendant-borrower, therefore, it is not proved on record that consideration had transferred on the basis of pronote executed by Pawan Kumar. In this regard, learned counsel for the respondents has contended that once the receipt has been executed no other proof is required to prove that consideration of money was transferred from the loaner to the borrower. I am in full agreement with the contention raised by the counsel for the respondents in this regard that receipt which has already been proved on record would tantamount to the transfer of the consideration from the loaner to the borrower and no further proof is required to prove that the pronote is a paper transaction only. Had there been only pronote and no receipt, then the argument raised by the learned counsel for the appellant has some merit. Had there been only pronote and no receipt, then the argument raised by the learned counsel for the appellant has some merit. But once receipt is there, it proves that money has already exchanged hands and the borrower had taken the money from the loaner. 15. In view of the above, both the questions are answered against the appellant and in favour of the respondents. 16. In view of the discussion above, I do not find any merit in the present appeal and the same is hereby dismissed without any order as to costs. ----------------