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2008 DIGILAW 4807 (MAD)

Narammal v. Shenbagavalli

2008-12-23

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- This appeal has been directed against the judgment and decree in Original Suit No.8 of 1988 on the file of the Court of Subordinate Judge, Tuticorin. 2. The averments in the plaint sans irrelevant particulars are as follows:- The defendants after receiving a sum of Rs.35,000/- from the plaintiff on 08.06.1984, had executed a demand promissory note in favour of the plaintiff. Inspite of repeated demands, the defendants had failed to repay the amount due under the suit promissory note. The defendants had agreed to pay interest at the rate of Rs.12% p.a. for the amount borrowed under the suit promissory note. Hence, the suit. 3. The defendants 1 and 3 have jointly filed their written statement contending that the alleged promissory note dated 08.06.1984 was not executed by the defendants. The husband of the first defendant died four years before. Till his life time, the plaintiff has not made any demand claiming towards Rs.35,000/- with interest under the suit promissory note. Till the life time of the husband of the first defendant, the plaintiff has not sent any notice of demand, claiming the suit amount. The alleged promissory note must be a forged document. The first defendants husband has not borrowed any amount for the welfare of the first defendant and for the welfare of the minor 4th defendant. There was no necessity for the first defendants husband to borrow a huge amount of Rs.35,000/- from the plaintiff. The first defendants husband was an agriculturist and the value of the property owned by these defendants will not exceed more than Rs.1500/-. the defendants are entitled to the benefits under the Debt Relief Act. While the first defendants husband was alive, he mortgaged the residential house to the plaintiff for a sum of Rs.2,000/-. Only to grab the house property of these defendants, the plaintiff has filed this vexatious suit. The first defendants husband died on 01.08.1984. There was a partition took place between the two wives and the children of the deceased husband of the first defendant in August 1984. In order to grab at the residential house of the defendants, the plaintiff has clantestantly manipulated the suit promissory note and filed this frivolous suit. The suit is barred by limitation. Hence, the suit is liable to be dismissed. 4. In order to grab at the residential house of the defendants, the plaintiff has clantestantly manipulated the suit promissory note and filed this frivolous suit. The suit is barred by limitation. Hence, the suit is liable to be dismissed. 4. The defendants 2 and 3 have filed a joint written statement contending that the alleged suit promissory note is not a genuine document. The plaintiffs husband Kumarandi Reddiar is a professional money lender. On 24.09.1974 late Narayana Reddiar has borrowed a sum of Rs.2,000/-from Kumarandi Reddiar and had executed simple mortgage in favour of the said Kumarandi Reddiar. Even though, the rate of interest in the mortgage is only 12% per annum, the actual agreed interest was 24% per annum. With a view to grab at the mortgaged house, the said Kumarandi Reddiar was not collecting the interest and allowed it to accumulate. On 01.08.1984, Narayana Reddiar died. On 06.06.1984 a Panchayat was convened by the villagers to effect a partition among the children of the Narayana Reddiar in respect of the properties left behind by Narayana Reddiar. The panchayatars are [1]Thiru.P.Ramasami, S/o.Perumal Reddiar, [2] Thir.N.Ramasamy Reddiar, S/o Narayana Reddiar, [3] Thiru.A.Ramasamy Reddiar, S/o Arunachala Reddiar, [4]Thiru.Vaiyappan Reddiar, [5] Thiru.Pulpappu Reddiar S/o.Pon Rddiar, [6] Thiru.P.P.Selvaraj, S/o.Pothi Reddiar and [7] S.Ramachandran, S/o.Shanmugham Reddiar. In The said panchayat, Kumarandi Reddiar appeared and requested the panchayatars that a total sum of Rs.-- was due to him under the above mortgage towards principal and interest and that in lieu of the same, the mortgaged property may be conveyed to him. The panchayatars pleaded with Kumarandi Reddiar that in so far as the family of Narayana Reddiar did not own any other house for residence, it would not be proper for him to demand the house in settlement of his debt. The panchayatars requested Kumarandi Reddiar to take a landed property left behind by Narayana Reddiar in lieu of his debt. Kumarandi Rddiar was not satisfied and left the panchayat. The panchayat was reduced to writing in a note book and was signed by the panchayatars and the parties concerned. Later Kumarandi Reddiar forged the signature of Narayana Reddiar and fabricated the suit promissory note for double the amount alleged to have been due as stated by him before the panchayatars. On the alleged date of promissory note, Late Narayana Reddiar did not have any urgent need for money. Later Kumarandi Reddiar forged the signature of Narayana Reddiar and fabricated the suit promissory note for double the amount alleged to have been due as stated by him before the panchayatars. On the alleged date of promissory note, Late Narayana Reddiar did not have any urgent need for money. The suit promissory note is only an exercise and the suit promissory note is a forged document. The defendants are not liable to pay any amount under the suit promissory note to the plaintiff. The plaintiff has no cause of action. Hence, the suit is liable to be dismissed. 5. On the above pleadings, the learned trial Judge has framed three issues for trial. On the side of the plaintiff P.W.1 and P.W.2 were examined and Exs.A1 and A2 were marked. On the side of the defendant D.W.1 and D.W.2 were examined and Exs.B1 to B9 were marked. 6. After meticulously going through the evidence both oral and documentary, the learned trial Judge has come to a conclusion that the suit promissory note under Ex.A1 is a forged document and consequently held that the plaintiff is not entitled to the relief asked for under the plaint, has dismissed the suit, which necessitated the plaintiff to approach this Court by way of this Appeal. 7. Now, the points that arose for determination in this appeal are; 1. Whether the suit promissory note is a forged one as contended by the defendant? 2. Whether the decree and judgment of the learned trial Judge in O.S.No.8 of 1988 on the file of the Court of Subordinate Judge, Tuticorin is liable to be set aside for the reasons stated in the memorandum of appeal?. 8.Point No.1:- The suit is filed on the basis of Ex.A1, promissory note, dated 08.06.1984, alleged to have been executed by the husband of the first defendant viz. late Narayana Reddiar and on the date of filing of the suit, the said Narayana Reddiar is no more. Ex.A2 is the death extract, relating to the death of Narayana Reddiar, which shows that the said Narayana Reddiar died on 16.11.1984. Till the date of death of Narayana Reddiar, the plaintiff had not send any notice demanding the amount due under Ex.A1, promissory note. The defence taken by the defendants before the trial Court is that Ex.A1 is a concocted forged document, created by the plaintiff for the purpose of filing the suit. Till the date of death of Narayana Reddiar, the plaintiff had not send any notice demanding the amount due under Ex.A1, promissory note. The defence taken by the defendants before the trial Court is that Ex.A1 is a concocted forged document, created by the plaintiff for the purpose of filing the suit. According to the first defendant, while her husband Narayana Reddiar was alive, he had executed a mortgage deed Ex.B1, dated 24.09.1974 in favour of the husband of the plaintiff viz., Kumarandi Reddiar and has also produced Ex.B2, sale deed, executed by the Selvaraj Reddiar in favour of one Avudai Ammal, wherein Narayana Reddiar has singed as a witness. But, Ex.B1 is a registration copy of the mortgage deed dated 24.09.1974. The learned trial Judge, after comparing the signature contained in Ex.B3, in Ex.B2, sale deeds, with that of the disputed signatures of Narayana Reddiar in Ex.A1, has come to a conclusion that both the signatures do not tally and do not belong to the one and the same person i.e., the disputed signature contained in Ex.A1 promissory note, is not that of Narayana Reddiar, had dismissed the Suit, holding that Ex.A1 is a forged document. Before this court, the learned counsel appearing for the respondent would contend that admittedly, Ex.B1 mortgage deed was executed by Narayana Reddiar in favour of Kumarandi Reddiar, the late husband of the plaintiff, and hence, the signatures contained in Ex.B1 of Narayana Reddiar may be compared with that of the disputed signature of Narayana Reddiar in Ex.A1. Since the original of Ex.B1 was not produced before this Court, the original of Ex.B1 i.e., Document No.1800 dated 26.04.1974 was send for from the Sub-Registrars Office, Vilathikkulam. When Ex.A1 and the Original Document No.1800, dated 26.04.1974 received from the Sub-Registrars Office, Villathikulam, were sent to the trial Court for sending the same to the Hand-writing Expert in Forensic Science Laboratory, Madurai, to get a report regarding the genuineness of the signature in Ex.A1, the learned trial Judge has returned both the original of Ex.B1 i.e., Document No.1800 dated 26.04.1974 along with Ex.A1, stating that the Expert wants more document containing the admitted signatures of Narayana Reddiar for comparing the same with that of the disputed signatures of Narayana Reddiar in Ex.A1. Apart from the original of Ex.B1, there is no other document containing the admitted signatures, apart from Ex.B2 and Ex.B3 were produced by either parties, before the Court. Under such circumstances, to save time, this Court had addressed the Assistant Director of Forensic Science Laboratory, Madurai, to appear before this Court on 16.12.2008 at 2.30 p.m. Accordingly, an Expert from the Forensic Science Laboratory (Regional Office) Madurai, was present at 2.30 p.m. before this Court and he was requested to compare the signatures of Narayana Reddiar contained in the admitted document Ex.C1 with that of the disputed signatures of Narayana Reddiar contained in Ex.A1. The Registry was also directed to handover the ledger Ex.C1, containing the admitted signatures of Narayana Reddiar and also Ex.A1, promissory note containing the disputed signatures of Narayana Reddiar for comparison. When the matter was posted today, the Expert from the Forensic Science Laboratory, (Regional Office) Madurai, had filed his report along with Ex.C1, Register, containing the admitted signatures of Narayana Reddiar and Ex.A1, promissory note. The said Expert was examined before the Court as per the provision contemplated under Order 41, Rule 8 of CPC, as Court witness No.1 and his report was marked as Ex.C1. (Since the Register contained the original of Ex.B1 was marked as Ex.C1 already, his report is now marked as Ex.C1(a) and his reasoning sheet marked as Ex.C2). Already the copies of the Expert Report, Ex.C1 and Reasoning Sheet Exc.C2 were furnished to both the learned counsel appearing for the plaintiff as well as for the defendants. A perusal of Ex.C1(a) report of the Hand-writing Expert will go to show that the admitted signatures of Narayana Reddiar differs in all respects with that of the disputed signatures of Narayana Reddiar contained in Ex.A1, promissory note. On perusal of the reasoning sheet Ex.C2, will also go to show that many characteristics in the signatures contained in the admitted signatures of Narayana Reddiar in Ex.C1(a) (Register containing the original of Ex.B1) differs from the disputed signatures of Narayana Reddiar contained in Ex.A1, promissory note. Under such circumstances, it cannot be said that the signature contained in Ex.A1, promissory note, is that of Narayana Reddiar. The learned counsel appearing for the appellant relying on the judgment of this Court in Sakthivel Vs. Under such circumstances, it cannot be said that the signature contained in Ex.A1, promissory note, is that of Narayana Reddiar. The learned counsel appearing for the appellant relying on the judgment of this Court in Sakthivel Vs. Dhandapani reported in (2007(2) L.W.450) would contend that a disputed signatures of a person cannot be compared with that of the admitted signatures of the said person, which was signed after a lapse of three years from the date of the disputed signatures. The facts of the said ratio is that the plaintiff filed a suit for recovery of a sum of Rs.1,35,434/- based on a promissory note said to have been executed by the respondent/defendant. An exparte decree was passed on 10.06.2004 and subsequently the plaintiff initiated execution proceedings and also filed I.A.No.531 of 2002 for attachment of the property of the defendant. On petition by the defendant, the exparte passed against him was set aside and an I.A.No.477 of 2005 was filed by the defendant to send the promissory note for getting an Expert opinion on the ground that the signatures found in the said promissory note does not belong to him. The learned Subordinate Judge, allowed the petition against which, the said Civil Revision Petition was preferred before this Court. Relying on the observation in the said ratio, which runs as follows:- 6.I gave anxious consideration on the rival contentions made by both sides, Along with the application, the respondent/defendant has not produced any of his signature in any one of the document of the relevant period except the letter said to have been written in the year 2000. A persons signature may change or vary with the passage of time and the signature of the person concerned involved in the case on hand is not an exception to this common phenomenon. Apart from that, burden is on the plaintiff to prove that the alleged promissory note was executed by the defendant. It is for him to take necessary steps, if signature found in the promissory note is denied by the defendant. If he fails to take necessary steps to prove either by oral or documentary or expert opinion, he will be a sufferer. 7..... “Even though the court may have the power to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. If he fails to take necessary steps to prove either by oral or documentary or expert opinion, he will be a sufferer. 7..... “Even though the court may have the power to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. In this case, a comparison has been made on the basis of signatures affixed by defendant in the vakalath and written statement, which are documents that have come into existence after the dispute arose, and after the promissory note in question was filed into Court along with plaint. A comparison should not have been made on the basis of those signatures. If that be so, it has to be held that the comparison was not made in accordance with law, even though the court is empowered to make a comparison. It is settled law that the disputed signature can be compared with admitted signature, which were contemporaneous and not with the admitted signatures obtained subsequent to the date of the disputed signature. By lapse of time, there may be some difference in the signature of a person. Only based on that principles, the above said judgment has been rendered by the learned single Judge of this Court. The facts of the said case will not be applicable to the facts of the present case because, the disputed signatures found in the promissory note in that case was compared with the admitted signatures of the defendant in his vakalat and written statement which were obtained some three years back, after the date of suit promissory suit. But the case on hand, a disputed signatures in Ex.A1 was compared with that of the signatures contained in the original of Ex.B1 i.e., the original maintained in the Sub-Registrars Office, Vilathikulam, which was marked as Ex.C1. So, in the case on hand, the admitted signatures of the defendant contained in an earlier document was compared with that of the disputed signatures contained in Ex.A1 by a Hand-writing Expert, C.W.1. The Hand-Writing Expert, C.W.1, who has given Ex.C1(a), Report, and Ex.C2, reasoning report, deposed that the disputed signatures contained in Ex.A1 is not that of the person signed in Ex.C1(a). The Hand-Writing Expert, C.W.1, who has given Ex.C1(a), Report, and Ex.C2, reasoning report, deposed that the disputed signatures contained in Ex.A1 is not that of the person signed in Ex.C1(a). It is the bounden duty of the plaintiff, who has come to the Court with Ex.A1, promissory note, to show that the promissory note was executed by the husband of D1 viz., Narayana Reddiar. Till the death of Narayana Reddiar, there was no demand made by the plaintiff by producing Ex.A1. The defendant have contended that Narayana Reddiar had executed a mortgage deed in Ex.B1, mortgaging his house for Rs.2,000/- and that with the help of the signatures contained in Ex.B1, the plaintiff has forged Ex.A1, promissory note, that too, after the death of Narayana Reddiar. Under such circumstances, I do not find any reasons to interfere with the findings of the learned trial Judge and hold that Ex.A1 is the forged document. Point No.1 is answered accordingly. 9.Point No.2:- In view of my findings and observation in the earlier paragraphs, I hold on Point No.2 that the judgment and decree of the learned trial Judge in O.S.No.8/1988, on the file of the Court of Subordinate Judge, Tuticorin, is not liable to be set aside for the reasons stated in the memorandum of appeal. 10. In fine, the appeal is dismissed, confirming the decree and judgment of the learned trial Judge in O.S.No. 8 of 1988, on the file of the Court of Subordinate Judge, Tuticorin, with costs.