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2014 DIGILAW 4050 (MAD)

A. Balakrishnan (Died) v. A. Mani

2014-10-30

P.DEVADASS

body2014
JUDGMENT P. DEVADASS, J. 1. The legal heirs of deceased 1st defendant in O.S. No. 271 of 2011, on the file of Sub Court, Karur, who have succeeded in the trial Court, however, become unsuccessful in plaintiff's appeal in A.S. No. 223 of 1999, before the learned District Judge, Karur, now have come up by way of this Second Appeal. 2. The plaint was laid by the first respondent/plaintiff for the return of advance money of Rs. 1,35,000/- under Ex.A1, sale agreement dated 18.09.1989 to the defendants 1 and 2, with interest at 9% totallying Rs. 1,71,450/-. The plaintiff having disgusted with the interse dispute between the blood brothers defendants 1 and 2 thought that he can get away with the advance money peacefully, laid up the suit. 3. It has been alleged that the said Ex.A.1 has been executed by defendants 1 and 2 on 18.09.1989 in favour of one Mallika, who assigned it under her Ex.A.2 endorsement dated 26.01.1990 in favour of the plaintiff. 4. The first defendant filed written statement mainly contending that he did not execute Ex.A.1. The signature therein is not of him. In paragraph 5 of the written statement, he pleaded that some of his papers with his signature left in his house, has been misused by the said Mallika and has made it as Ex.A.1. Thus, 1st defendant denied his execution of Ex.A.1. His brother 2nd defendant is not in the picture because he do not want to participate in the battle between the plaintiff and the 1st defendant. 5. The learned Munsif framed the necessary issues and tried the suit. Evidence was let in. But before knowing the result of the case, 1st defendant Balakrishnan (D.W.1) had gone to the other world. Next his legal heirs have continued the legal battle. There was hot contest. 6. The Munsif, noticed some distinguishing features as between Ex.A.1 and Ex.B.1, which is stated to be a replica (xerox copy) of Ex.A.1, cross-examination of P.W.3 Chidhambaram, an attestor to Ex.A.1, doubted the veracity of plaintiff's witnesses and concluded that the plaintiff has not proved the due execution of Ex.A.1 and dismissed the suit. 7. The defeated plaintiff went to the District Court, Karur in appeal in A.S. No. 223 of 1999. The first appellate Court viewed the entire pleadings and the evidence in different perspective. 7. The defeated plaintiff went to the District Court, Karur in appeal in A.S. No. 223 of 1999. The first appellate Court viewed the entire pleadings and the evidence in different perspective. The first appellate Court is of the view that when the signature of first defendant in Ex.A.1 has been admitted and the nature of the plea taken by the 1st defendant in his written statement the plaintiff discharged his initial burden of proving execution of Ex.A.1 by letting in satisfactory evidence, however, the legal heirs of the 1st defendant ought to have taken up the task of disproving the signature of first defendant in Ex.A.1 by taking appropriate steps, however, they did not do so, in the circumstances the first appellate Court reversed the finding of the trial Court and decreed the suit as prayed for with costs. 8. Now, in view of this zig-zag trend, this time the legal heirs of the defeated first defendant became the appellants. 9. At the time of admission of this Second Appeal, the then learned Judge framed the following substantial questions of law: "1. Whether the lower appellate Court is right in holding that under Section 35 of the Indian Evidence Act Ex.B.1 is not acceptable? 2. When the appellant denied signature in the evidence whether it has to be proved by the respondent under Section 45 of the Indian Evidence Act or not?" 10. This Court as well as both the counsels is of the view that the 1st question is inappropriate and irrelevant. So, it has become unnecessary. 11. According to the learned counsel for the appellants/legal heirs of the deceased 1st defendant, there is no valid and convincing reasons in the judgment of the First Appellate Court to upset the elaborate judgment of the trial Court. The plaintiff has not proved the execution of Ex.A.1 sale agreement and payment of the advance amount thereunder. The learned counsel would refer to Ex.A.1 in original and compare it with Ex.B.1 its xerox copy. Both are not analogous and are dissimilar with respect to presence of signature of P.W.3 Chidambaram in Ex.A.1 and the absence of the same in Ex.B.1. He would also read the cross-examination of P.W.3 in which he had pleaded his ignorance about Ex.A.1 and his statement that he had not seen the payment made in his presence. Both are not analogous and are dissimilar with respect to presence of signature of P.W.3 Chidambaram in Ex.A.1 and the absence of the same in Ex.B.1. He would also read the cross-examination of P.W.3 in which he had pleaded his ignorance about Ex.A.1 and his statement that he had not seen the payment made in his presence. Thus, the counsel would emphasis that since the suit is based on Ex.A.1, when it has gone, plaint also will go away. 12. On the other hand, the learned counsel for the 1st respondent would refer to the defence/written statement/plead of 1st respondent, more particularly its paragraph 5 of written statement wherein he admits his signature in Ex.A.1, however, he plead circumstances under which he has signed Ex.A.1, when it was blank. Then it is incumbent on him to discharge his said plea by letting in appropriate evidence. In such circumstances, he could have taken steps by obtaining an expert opinion on Ex.A.1. But, he did not do so. 13. The learned counsel for the respondent also contended that the very defence of the appellant is Ex.A.1 was not at all executed by him, in such circumstances, his producing of Ex.B.1 a xerox copy of Ex.A.1 from his possession would show the cat has came out of the bag. Further, the contention with reference to the evidence of P.W.3 is too small a matter and it is quite inconsequential. It will not absolve the appellants from their establishing the case pleaded in paragraph 5 of the written statement. In the circumstances, the First Appellate Court has come to the irresistible conclusion that execution of Ex.A.1 has been duly proved and thus set aside the judgment and decree of the trial Court. 14. I have deeply considered the submissions of the learned counsels at the Bar, perused the judgments of the two Courts which suffered heavy attack at the Bar in their post-mortem and also perused the entire case records. 15. Ex.A.1 is a sale agreement dated 18.09.1989. It states that it has been executed by Balakrishnan/1st defendant and his brother Rajasekaran/2nd defendant, who are willing to sell 'A' Scheduled property for a total sale consideration of Rs. 3,00,000/- to P.W.2 Mallika W/o. P.W.4 Selvaraj and P.W.2 had paid this vendors Rs. 15. Ex.A.1 is a sale agreement dated 18.09.1989. It states that it has been executed by Balakrishnan/1st defendant and his brother Rajasekaran/2nd defendant, who are willing to sell 'A' Scheduled property for a total sale consideration of Rs. 3,00,000/- to P.W.2 Mallika W/o. P.W.4 Selvaraj and P.W.2 had paid this vendors Rs. 1,35,000/- as advance and time is made essence of the contract 6 months time has been prescribed to pay the balance sale consideration and sale has to be executed. Under Ex.A.2, on 26.01.1990, P.W.2 had assigned her rights in Ex.A.1 in favour of P.W.1 Mani plaintiff. Since there is in-fighting between defendants 1 and 2, plaintiff wanted return of the advance money by issuing Ex.A.3 notice to the defendants. Defendants replied under Ex.A.4 that they have not executed Ex.A.1. It is a rank forgery and no money has been received. Subsequently, under Ex.A.5, second defendant confirmed the execution of A.1 by both the defendants but the entire money was received by first defendant and no money was given to him. Therefore, he set up the plaintiff to fight against the first defendant and gave goodbye to their fight and he remained ex-parte. 16. The trial Court referred to the signature of 2nd defendant in Ex.A.5 and the signature in Ex.A.1 and it was of the view that they does not look alike. Be as it may. 17. It is a suit for return of advance money. It is a simple suit for recovery of money. It is not a suit based on any negotiable instrument. It is a suit for recovery of money on original cause of action on the basis of money given and received under Ex.A.1 and therefore, the plaintiff has to succeed or fall, solely based on his proving Ex.A.1. 18. At the time when Ex.A.1 was executed by P.W.2, plaintiff was not in the picture. He came to the picture only when Ex.A.2 has been made by P.W.2. P.W.2 has been examined to speak about execution of Ex.A.1 and Ex.A.2. Her husband P.W.4 Selvaraj has also spoken about execution of Ex.A.1 and A.2 and he has corroborated the evidence of his wife. 19. The fight is between Ex.A.1 and Ex.B.1. It is Ex.A.1 vs. Ex.B.1. Ex.A.1 is a sale agreement. Its execution has been totally denied by the appellants. Her husband P.W.4 Selvaraj has also spoken about execution of Ex.A.1 and A.2 and he has corroborated the evidence of his wife. 19. The fight is between Ex.A.1 and Ex.B.1. It is Ex.A.1 vs. Ex.B.1. Ex.A.1 is a sale agreement. Its execution has been totally denied by the appellants. However, during the course of cross-examination of the plaintiff side witness Ex.B.1, a xerox copy of Ex.A.1 has been produced by the 1st defendant and confronted with the witness. 20. There is mentioning of P.W.3 Chidambaram as an attestor in Ex.A.1. But he is not found in Ex.B.1. The very plea of the appellants is that there was no existence of Ex.A.1 at all. Then how Ex.B.1 could be a xerox copy, of a non-existed Ex.A.1 that too when it came from the possession of adverse party, namely, 1st defendant. Possibility of interpolation by him cannot be ruled out. The execution of Ex.A.1 has been spoken to by P.Ws.2 and P.W.4. P.W.3 has not seen in person, the payment of the money in his presence. But on the whole on the single line cross-examination of P.W.3 would not thrash down the entire Ex.A.1 in the presence of evidence. 21. The crux of the defence of the appellants is found in paragraph 5 of the written statement. There is clear cut admission that the signature in Ex.A.1 is of 1st defendant. 22. In this connection it has been contended by the learned counsel for the appellants that mere admission of one's signature in a document is not equivalent to proof of the entire document. 23. Now the primary evidence as to the execution of Ex.A.1 has been let in by the plaintiff. In the written statement at paragraph 5, the first defendant set forth a case/ plea/version, he advocated a reason for the existence of his signature in Ex.A.1 viz. he kept some of his signed papers in his house, but that has been taken away by the plaintiff and misused it. It is the version of the first defendant. It is a special plea. It is a material fact known to first defendant. Such a special fact must be proved by the person who pleaded it. If no evidence is let in, who will fall, upon whom the burden of proof lies. It is the version of the first defendant. It is a special plea. It is a material fact known to first defendant. Such a special fact must be proved by the person who pleaded it. If no evidence is let in, who will fall, upon whom the burden of proof lies. In this case, as pleaded in paragraph 5 of the written statement, if no evidence is let in to establish the said special fact, the first defendant will fail so upon him the burden of proof lies. In such view of the matter, to probabilise his case 1st defendant should have let in proper evidence. He should have obtained expert evidence to establish his version of his case in the written statement. But he did not do so. In the circumstances, the substantial question No. 2 is answered as against the 1st defendant/1st appellant. 24. In winding up our discussion on the deliberations of the learned counsels, in the light of the records of the case and on the perusal of the impugned judgment and decree of the Courts below this Court is of the view that the plaintiff has proved the execution of Ex.A.1, while the 1st defendant had failed to probabilize his version by letting in relevant evidence. In the circumstances, the First Appellate Court has rightly accepted the case of the plaintiff and rejected the case of the first defendant and thus it is right in its reversal judgment. 25. In view of the aforesaid reasons, the Second appeal fails and it is dismissed, confirming the judgment and decree of the District Court, Karur in A.S. No. 223 of 1999, made on 21.01.2008. Now, the 1st defendant is resting in peace. The battle has been carried to this level by his legal heirs. Now they have lost that battle also. In the circumstances, let us not burden them with costs of the Second Appeal. Thus, their respective costs of the Second appeal will be borne by both the parties. Consequently, connected M.P. (MD) No. 1 of 2009 is also dismissed.