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2009 DIGILAW 1107 (PNJ)

Gurdial Singh v. Nand Kaur

2009-07-08

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J.:- This Regular Second Appeal is directed against the judgment and decree dated 23.04.1993, rendered by the Court of Additional District Judge, Ferozepur, vide which it accepted the appeal and set aside the judgment and decree dated 02.03.1989, rendered by the Court of Additional Senior Sub Judge, Fazilka, vide which the suit of the plaintiff was dismissed. 2. The brief facts of the case, are that on 07.06.1983, Gurdial Singh, defendant no.1 (now appellant)borrowed a sum of Rs.14,500/-, from Nand Singh, (now deceased), and in lieu thereof, he executed the pronote and receipt of even date, promissing to repay the same alongwith interest at the rate of 1.37 paise per month. Nand Singh died and the plaintiffs and defendant no.2, being his legal heirs, became entitled to recover the amount of pronote and receipt referred to above. Gurdial Singh, defendant was asked many a time, to return the principal amount alongwith interest, but to no avail. Notice was also served upon him, with a request to repay the principal amount alongwith interest but to no avail. Ultimately, a suit for recovery was filed. 3. Gurdial Singh, defendant no.1, put in appearance, and contested the suit of the plaintiffs, by way of filing written statement, wherein, it was pleaded that the suit had not been filed by all the legal heirs of Nand Singh (deceased) and, as such, the same was not maintainable. It was also pleaded that the suit was barred by limitation. It was further pleaded that the suit was bad for non-joinder of necessary parties. It was further pleaded that the suit was liable to be dismissed for want of succession certificate. It was further pleaded that the plaintiffs were estopped from filing the suit by their own act and conduct. It was denied that any amount of Rs.14,500/- was borrowed by him from Nand Singh. It was also denied that the pronote and receipt were executed by him. On the other hand, it was stated that the pronote and receipt were forged and fabricated documents. The remaining averments, contained in the plaint, were denied. It was denied that any amount of Rs.14,500/- was borrowed by him from Nand Singh. It was also denied that the pronote and receipt were executed by him. On the other hand, it was stated that the pronote and receipt were forged and fabricated documents. The remaining averments, contained in the plaint, were denied. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the plaintiffs are the legal heirs of the deceased Nand Singh ?OPP 2- Whether the suit cannot be maintainable for want of succession certificate ?OPD 3- Whether the suit is within limitation ?OPD 4- Whether the plaintiffs are estopped from filing this suit by their act and conduct ?OPD 5- Whether defendant no.1 executed a pronote and receipt of dated 7.6.1983 in favour of Nand Singh, deceased ?OPD 6- If issue No.5 is proved, whether the pronote is without consideration and is a forged document ?OPD 7- Whether the suit is bad for nonjoinder of necessary parties ?OPD 8- Whether the plaintiffs Amarjit Kaur and Karamjit Kaur are majors and they have been wrongly shown as minors, if so its effect ?OPD 9- Relief.” 4-A. The parties led oral as well as documentary evidence in support of their case. 5. After hearing the Counsel for the parties, and on going through the evidence, and record of the case, the trial Court decided issue Nos.1,3,4, 7 and 8 in favour of the plaintiffs and against the contesting defendant, while issue nos.5 and 6 were decided against the plaintiffs and in favour of the contesting defendant. The trial Court held that Gurdial Singh, contesting defendant, did not execute the pronote and receipt dated 07.06.1983 in favour of Nand Singh, deceased. It was also held by the trial Court that the pronote was without consideration. It was further held by the trial Court that the pronote and receipt were forged and fabricated documents. Ultimately, the trial Court dismissed the suit of the plaintiffs. 6. Feeling aggrieved against the judgment and decree dated 02.03.1989, passed by the trial Court, the plaintiffs (appellants) filed an appeal before the Appellate Court, at Ferozepur, which vide its judgment and decree dated 23.04.1993 accepted the same. 7. Feeling aggrieved, the instant Regular Second Appeal, has been filed, by Gurdial Singh,defendant (appellant). 8. The following substantial questions of law, arise in this appeal for determination:- “1. 7. Feeling aggrieved, the instant Regular Second Appeal, has been filed, by Gurdial Singh,defendant (appellant). 8. The following substantial questions of law, arise in this appeal for determination:- “1. Whether the First Appellate Court did not properly appreciate the evidence of Gurtej Singh, (PW-1), Attar Singh, (PW2) and Thana Singh, (PW-4) and, as such, came to an incorrect conclusion that Gurdial Singh, borrowed a sum of Rs.14,500/- from Nand Singh, (since deceased) and executed the pronote and receipt? 2- Whether the First Appellate Court, recorded the finding that the pronote was for valuable consideration merely on conjectures and surmises? 3- Whether the First Appellate Court was wrong in coming to the conclusion that the pronote and receipt were not forged and fabricated documents? 4- Whether the First Appellate Court wrongly reversed the findings recorded by the trial Court on issue nos. 5 and 6 in favour of the defendant/appellant? 9. I have heard the Counsel for the parties, and have gone through and perused the evidence and record of the case, carefully. 10. The Counsel for the appellant submitted that the trial Court, after due scrutiny of the evidence of the parties, was right in coming to the conclusion that no pronote and receipt were executed by Gurdial Singh, defendant(now appellant) in favour of Nand Singh (now deceased) on 07.06.1983. He further submitted that the trial Court was also right in coming to the conclusion that the pronote was without consideration. He further submitted that the trial Court was right in holding that the pronote and receipt were forged documents. He further submitted that the First Appellate Court, without any rhyme or reason reversed the findings of the trial Court, on these issues by placing reliance on unreliable evidence of the witnesses, produced by Nand Singh ( now deceased ) plaintiff. He further submitted that the statutory presumption, that the pronote was for valid consideration, once the execution thereof was proved, under Section 118(a) of the Negotiable Instruments Act, 1881, could only be drawn if the contrary was not proved. He further submitted that the appellant, duly rebutted the presumption, by leading evidence that the marriage of his daughter took place in the month of February 1983 and, as such,he had no occasion to obtain the loan from Nand Singh, (now deceased), plaintiff, on 07.06.1983 by executing the pronote,(Ex.P1), and receipt,(Ex.P2), for the said purpose. He further submitted that the appellant, duly rebutted the presumption, by leading evidence that the marriage of his daughter took place in the month of February 1983 and, as such,he had no occasion to obtain the loan from Nand Singh, (now deceased), plaintiff, on 07.06.1983 by executing the pronote,(Ex.P1), and receipt,(Ex.P2), for the said purpose. He further submitted that the judgment and decree, rendered by the First Appellate Court, being illegal, were liable to be set aside, whereas the judgment and decree of the trial Court, were liable to be restored. 11. On the other hand, the Counsel for the respondents, supported the findings, recorded by the First Appellate Court. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed, and the substantial questions of law, referred to above, are liable to be decided against the appellant, for the reasons to be recorded hereinafter. Gurtej Singh, (PW-1), Scribe of the pronote Ex.P1 and receipt Ex.P-2, is the close relative of Gurdial Singh, defendant no.1,(now appellant).He is also related to Attar Singh, (PW-2), an attesting witness of receipt, (Ex.P-2). Thana Singh, (PW-4) another attesting witness is closely related to Attar Singh. Gurtej Singh,(PW-1) stated that Gurdial Singh, contesting defendant, (now appellant), is the husband of the sister of his father. The relationship of this witness, could not be successfully challenged, by Gurdial Singh, defendant no.1 (now appellant). From the evidence of Gurtej Singh, (PW-1), scribe of pronote, (Ex.P-1), Attar Singh,(PW-2) an attesting witness of receipt, (Ex.P-2) and Thana Singh,(PW-4), another attesting witness of receipt, it was duly proved that Gurdial Singh, defendant no.1 (now appellant ) borrowed a sum of Rs.14,500/-, from Nand Singh, (now deceased), predecessor-ininterest of the plaintiffs, and in lieu thereof, executed the pronote,(Ex.P-1)and receipt, (Ex.P-2). The perusal of the statements of these witnesses clearly goes to show that they stood the test of touch-stone of all probabilities, during the course of their cross-examination. Their veracity could not be successfully shattered during the course of their cross-examination, by the Counsel for defendant no.1 ( Gurdial Singh ). They had no illwill, grudge or enmity to depose against Gurdial Singh, defendant no.1. Their veracity could not be successfully shattered during the course of their cross-examination, by the Counsel for defendant no.1 ( Gurdial Singh ). They had no illwill, grudge or enmity to depose against Gurdial Singh, defendant no.1. No doubt, these witnesses were cross-examined in respect of pronotes,(Ex.D-1 and Ex.D-3), by the Counsel for Gurdial Singh, defendant no.1 (now appellant).However, no plea with regard to the execution of these documents by Gurdial Singh, defendant no.1 ( now appellant ), in the written statement was taken. These were for the first time brought by him, from his custody, and put to Gurtej Singh, during the course of crossexamination, when he appeared as PW-1. The trend of cross-examination of Gurtej Singh, thus, clearly showed that he was put many questions in respect of pronotes,(Ex.D1 and Ex.D3) instead of pronote and receipt,(Ex.P1 and Ex.P2), executed by Gurdial Singh, defendant no.1 ( now appellant ), in favour of Nand Singh, deceased, predecessor-in-interest of the plaintiffs. These witnesses denied the suggestions that pronote and receipt,(Ex.P1 and Ex.P2) were got executed in lieu of pronotes,(Ex.D1 and Ex.D3). It was also not the case of defendant, Gurdial Singh, (now appellant) that he did not receive any cash, at the time of execution of the pronote and receipt,(Ex.P-1 and Ex.P-2), but the same were executed in lieu of pronotes,(Ex.D1 and Ex.D3). The First Appellate Court was, thus, right in coming to the conclusion, that the case set up by Gurdial Singh, defendant no.1, during the course of the evidence of the witnesses, produced by the plaintiffs, and in his own evidence, was beyond the pleadings.The First Appellate Court was also right, in coming to the conclusion, that the contesting defendant could not be allowed to travel beyond the pleadings and any evidence led by him, contrary to the same, could not be taken into consideration. The First Appellate Court, in my considered opinion, correctly appreciated the cogent, convincing and reliable evidence of Gurtej Singh, (PW-1), Attar Singh, (PW-2) and Thana Singh,(PW-4), and was right in coming to the conclusion that the pronote and receipt,(Ex.P-1 and Ex.P-2) were executed by Gurdial Singh, defendant no.1 (now appellant), in favour of Nand Singh,(now deceased). after receipt of a sum of Rs.14,500/-.The findings of the First Appellate Court, in this regard, therefore, could not be said to be illegal or perverse. The first substantial question of law is, thus, answered against the appellant. after receipt of a sum of Rs.14,500/-.The findings of the First Appellate Court, in this regard, therefore, could not be said to be illegal or perverse. The first substantial question of law is, thus, answered against the appellant. 13. Once it was proved that Gurdial Singh, defendant no.1 (now appellant ) executed pronote ,(Ex.P-1), in favour of Nand Singh, (now deceased), a statutory presumption arose under Section 118(a) of the Negotiable Instruments Act, 1881 (amended up to date ) that the same was for valid consideration. No doubt, such a presumption was rebuttable. However no evidence, worth reliance was produced by Gurdial Singh, defendant no.1, (now appellant) to rebut the same. Even during the course of cross-examination of the witnesses, produced by the plaintiffs, he could not bring out anything, which may go to prove that the pronote was without consideration. On the other hand, Gurtej Singh, scribe, (PW-1), Attar Singh, (PW-2) and Thana Singh, (PW-4), attesting witnesses of the receipt,(Ex.P-2), in clear cut terms, stated that a sum of Rs.14,500/- was borrowed by Gurdial Singh, defendant no.1 (now appellant) from Nand Singh, (now deceased ) and in lieu thereof, he executed pronote and receipt,(Ex.P-1 and Ex.P-2). Thus, the First Appellate Court was right, in coming to the conclusion that pronote,(Ex.P1) was for valid consideration. The First Appellate Court, therefore, did not act on mere conjectures and surmises for coming to such a conclusion. 14. The execution of pronote,(Ex.P-1) as stated above, stood duly proved. Nand Singh, (now deceased) was not a money-lender. Admittedly, Gurtej Singh, (PW-1) is closely related to Gurdial Singh, defendant no.1 (now appellant). He had been on visiting terms with Gurdial Singh. It was stated by Gurtej Singh, (PW-1), in his statement, that Gurdial Singh, defendant (now appellant ), married his younger daughter about 5-1/2 years before his statement. It was proved from the statement of Gurtej Singh, (PW-1) that Gurdial Singh, after the marriage of his younger daughter, again and again requested him for arranging some money to clear the debt, taken at the time of such marriage. It was further stated by him that Nand Singh (now deceased), father-in-law of Attar Singh, (PW-2) who was related to him, assured him to advance some money on credit.It was on this assurance that on 07.06.1983, the money was advanced to Gurdial Singh. It was further stated by him that Nand Singh (now deceased), father-in-law of Attar Singh, (PW-2) who was related to him, assured him to advance some money on credit.It was on this assurance that on 07.06.1983, the money was advanced to Gurdial Singh. On account of near relationship, Nand Singh, who was living with his daughter, at village Shahpur Dakhli Jotian Wali, alongwith Attar Singh and Thana Singh, went to the house of Gurdial Singh, defendant no.1 (now appellant ) at village Dane Wala Satkosi Tehsil Fazilka on 07.06.1983, and there a sum of Rs.14,500/- was advanced as a loan, in cash, to him and in lieu thereof, pronote and receipt, (Ex.P-1 and Ex.P2), were executed by him. The plea taken by the appellant that he had already married his daughter and, thus, there was no occasion to take loan of Rs.14,500/- for this purpose from Nand Singh, stands answered from the evidence discussed above. The pronote was, thus, rightly held for valid consideration. The submission of the Counsel for the appellant, in this regard, being devoid of merit, is rejected. Substantial question no.2 of law, is, thus, answered against the appellant. 15. No evidence worth credence was led by the appellant to prove the mode and manner, in which the pronote,(Ex.P-1) and receipt, (Ex.P-2) were forged. The First Appellate Court, thus, rightly held that the trial Court did not properly appreciate the evidence, of Gurtej Singh, (PW-1), Attar Singh, (PW-2) and Thana Singh, (PW-4), in the context referred to above, and, thus, was wrong in coming to the conclusion that the pronote and receipt (Ex.P-1 and Ex.P-2) were forged documents. The First Appellate Court was, thus, right in holding that the pronote and receipt were not forged documents. The First Appellate Court, thus, reversed the findings of the trial Court on issue nos. 5 and 6 after due scrutiny of the evidence, in its proper perspective, and taking into consideration the law on the point. The reversal of findings on issue nos. 5 and 6 of the trial Court by the First Appellate Court, therefore, could not be said to be in any way erroneous. Substantial question nos. 3 and 4 of law, are, thus, answered against the appellant. 16. The judgment and the decree of the First Appellate Court, therefore, do not suffer from any illegality or perversity, warranting interference by this Court. Substantial question nos. 3 and 4 of law, are, thus, answered against the appellant. 16. The judgment and the decree of the First Appellate Court, therefore, do not suffer from any illegality or perversity, warranting interference by this Court. The same are liable to be upheld. 17. For the reasons recorded above, the appeal, being devoid of merit, must fail and the same is dismissed. ----------