IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.11.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.911/2004 CMP.Nos.6689/2004 and 122/2010 V.Ramkumar Appellant Vs E.Manickavelu Respondent Prayer:- This Second Appeal is filed against the Judgement and Decree dated 13.10.2003 passed in AS.No.76/2002 by the learned II Additional District and Sessions Judge (FTC) Madras, modifying the Judgement and Decree dated 23.7.2001 passed in OS.No.5728/1998 by the learned IV Assistant Judge, City Civil Court, Chennai. For Appellant : Mr.A.Chandra Mouleeswaran For Respondent : Mr.N.Bhaskar JUDGEMENT The respondent herein/plaintiff has filed the suit in OS.No.5728/1998 to pass a judgement and decree against the appellant herein/defendant to recover a sum of Rs.70,000/- from the estate of the father of the defendant viz. deceased A.Vaidyalinga Nadar and for costs. 2. The case of the Plaintiff as set out in the plaint is as follows:- a. The defendant is the son of one A.Vaidyalinga Nadar. The mother of the plaintiff and the mother of the defendant are sisters. On the request of the father and mother of the defendant, the plaintiff gave a sum of Rs.70,000/- to the father of the defendant for developing the business and the said money was advanced on several occasions. The father of the defendant was issuing slips to the plaintiff whenever he borrowed money from the plaintiff. When the father of the defendant was ill and bed- ridden, the plaintiff requested him to repay the amount borrowed from him, for which the father of the defendant told that it was not possible for him to pay the amount immediately and he would pay the same as soon as he recovered from his illness and gave a cheque dated 7.11.1997 for a sum of Rs.70,000/- being the entire amount due to the plaintiff and promised to discharge the debt after recovery from his illness and take back the cheque and asked the plaintiff to wait for some more time. Within a month thereafter, https://hcservices.ecourts.gov.in/hcservices/ the father of the defendant died. b. After the demise of A.Vaidyalinga Nadar, the defendant became the Kartha of his family. He had left his properties worth more than Rs.30 lakhs to be succeeded by his sons, including the defendant. The defendant also promised to pay the entire amount due with interest, but he did not pay the same. Hence, the plaintiff issued a legal notice dated 4.6.1998 to the defendant demanding the due amount of Rs.70,000/-, for which the defendant sent a reply denying the payment of the amount to his father. Hence, the suit has been filed for recovery of the said amount from the estate left by his father on his death. 3. In the Written Statement filed by the Defendant, it is averred as follows:- The deceased A.Vaidyalinga Nadar had three sons and two daughters. But, the plaintiff has not impleaded all the parties and therefore, the suit is bad for non-joinder of necessary parties. The allegation that the father of the defendant borrowed Rs.70,000/- from the plaintiff is false. The father of the defendant was running the business profitably and hence, there is no necessity for him to borrow any money. The allegation regarding the borrowal of money on several occasions and issuance of the slips by the father of the defendant is also false. The father of the defendant has not issued any cheque on 7.11.1997. Neither the defendant nor his father is indebted to the plaintiff at any time. Under the guise of seeing the father of the defendant, who was bedridden, the plaintiff must have taken away the alleged cheque leaf kept by his bedside. The defendant found after the demise of his father that three cheque leaves were missing from the cheque book belonged to his father. The defendant did not promise to repay any amount to the plaintiff. The defendant, his brothers and sisters succeeded to the estate of their father. On 10.6.1998, the defendant sent a reply to the notice dated 4.6.1998 sent by the plaintiff. The defendant requested the plaintiff to furnish a copy of the said cheque, but he did not furnish it. The alleged cheque is not genuine. The defendant is not liable to pay any amount to the plaintiff. In such facts and circumstances, the suit is liable to be dismissed. 4. Before the Trial Court, on the side of the Plaintiff, Ex.A1 to A4 were marked and the Plaintiff examined himself as PW.1. On behalf of the Defendant, no document was marked. The defendant and one P.Ramakrishnarao were examined as DW.1 and DW.2. 5. On consideration of the oral as well as the documentary evidence, the Trial Court decreed the suit for recovery of the suit claim from the defendant with costs and directed the defendant to pay the suit claim to the plaintiff. In the appeal filed as against the same by the defendant, the lower appellate court modified the judgement and decree of the trial court in part and granted a decree to the effect that the plaintiff is entitled to a decree for the suit claim from the estate of his father. As against the same, https://hcservices.ecourts.gov.in/hcservices/ this Second Appeal has been filed by the defendant. 6. This Second Appeal has been entertained on the following substantial questions of law:- (a) Whether the first appellate court is right in granting a decree against the appellant in favour of the respondent, who had failed to prove the passing of consideration based on the alleged slips and the alleged execution of Ex.A1 by the deceased A.Vaidyalinga Nadar, especially when the passing of consideration after issuing the slips, the execution of Ex.A1 and the custody of Ex.A1 with the respondent were disputed by the appellant, merely relying on non-filing of a complaint with the police and by not issuing instructions to the Bank for stop payment and also the custody of Ex.A1 with the respondent? (b)Whether the courts below are right in not drawing an adverse inference against the respondent for non- production of the slips, on which the respondent bases in his claim? (c)Whether the courts below are right in granting a decree against the appellant in favour of the respondent based on the assumptions and presumptions, as if the suit was filed by the respondent against the alleged borrower? 7. This court heard the submissions of the learned counsel on either side and also perused the judgements of the court below and the materials on record. 8. Mr.A.Chandra Mouleeswaran, the learned counsel for the appellant contended that the appellant/defendant disputed the custody of Ex.A1 cheque with the respondent/ plaintiff and also the passing of consideration based on the slips said to have been issued by his father A.Vaidyalinga Nadar to the respondent. He would contend that when the execution and the passing of the consideration are disputed by the defendant, the presumption under Section 118 of the Negotiable Instruments Act is not available in the present case. The learned counsel would submit that when the grant of loan amount and Ex.A1 are not contemporaneous, inasmuch as the amount was advanced not on the date of the execution of Ex.A1 cheque, the applicability of Section 118(a) of the Act is excluded. 9. The learned counsel for the appellant would submit that in a suit of this nature, that is when a suit is instituted against the undivided sons of a Hindu promisor after his death on a negotiable instrument executed by him, the suit cannot be regarded as one against the heirs or representatives of the promisor because it only seeks to enforce the Hindu Law theory of pious obligation in respect of the estate which the sons have taken by survivorship. The learned counsel would submit that the pious obligation can https://hcservices.ecourts.gov.in/hcservices/ arise only on the assumption of the existence of the debt due by the father and in that case, the onus of proof of existence of debt is prima facie on the respondent/plaintiff. In support of the above said submission, he placed reliance on the decision of this court reported in AIR-1937-Madras-182 [Anumolu Narayana Rao and another Vs. Ghattaraju Venkatapayya and others] wherein it is held thus:- “Section 118, Negotiable Instruments Act is essentially a produce of Wester law and the special rules of evidence laid down in S.118 of the Act have been intended to apply only between the parties to instrument or those claiming under them. In other classes of cases, e.g. In a suit against undivided sons of a father on the promissory note after his death, S.118 is not applicable as the essential feature of liability under a negotiable instrument is absent in such suit, but a presumption under S.114, Evidence Act, is permissible. When a suit is instituted against the undivided sons of Hindu promisor after his death on a promissory note executed by him, the suit cannot be regarded as one against the heirs or representatives of the promisor because it only seeks to enforce the Hindu law theory of pious obligation in respect of the property which the sons have taken by survivorship. The pious obligation can arise only on the assumption of the existence of debt due by father and in that case the onus of proof of existence of debt is prima facie on the creditor.” 10. The learned counsel for the appellant contended pointing out to the plea raised in the written statement and the evidence adduced by the defendant that the issuance of the cheque was denied and disputed by the defendant and further, when the custody of the cheque with the plaintiff is properly explained, it is for the plaintiff to prove that the cheque was issued by the father of the defendant in the manner as alleged in the plaint. It is further contended that only the cheque leaf was admitted to have belonged to the father of the defendant and the signature found in Ex.A1 is not that of his father and therefore, the burden is heavily on the plaintiff to prove that the signature in Ex.A1 is that of A.Vaidyalinga Nadar, the father of the defendant. 11. In this second appeal, the appellant herein/defendant has filed a petition in CMP.No.122/2010 for reception of additional documents, namely, (1) a deed of simple mortgage dated 2.4.1970 executed by A.Vaidyalinga Nadar in favour of one Manickam Chettiar and (2) another deed of simple mortgage dated 2.7.1970 executed by A.Vaidyalinga Nadar in favour of one Thiagarajan. The above said documents are sought to be marked as additional evidence to show the signature of A.Vaidyalinga Nadar and to substantiate his case that he used to sign only in Tamil. https://hcservices.ecourts.gov.in/hcservices/ 12. The reception of the above said additional documents as additional evidence is resisted and opposed by the respondent herein on the ground that there is no dispute that A.Vaidyalinga Nadar would sign only in Tamil and even in Ex.A1 cheque, the signature of A.Vaidyalinga Nadar is only in Tamil and therefore, there is no necessity for reception of the above said documents as additional evidence. Further, it is contended that the documents sought for to be received as additional evidence are executed in the year 1970, whereas the cheque Ex.A1 was issued on 7.11.1997 i.e. nearly 27 years after the execution of those documents sought to be marked. 13. Mr.N.Bhaskar, the learned counsel for the respondent would contend that the courts below have given a concurrent finding that the signature found in Ex.A1 is that of A.Vaidyalinga Nadar based on the available evidence of the witnesses pointing out that the defendant has not taken any steps to get the opinion of an expert to show that the signature in Ex.A1 is not that of A.Vaidyalinga Nadar. The learned counsel for the respondent would submit that there is no acceptable evidence to substantiate the plea of non-existence of debt in this case nor there is anything to raise even a suspicion that the cheque leaf was stolen by the respondent and misused it as Ex.A1 cheque. It has been urged that on the basis of the evidence adduced by the parties, the courts below found that Ex.A1 is supported by consideration and this being a pure finding of fact, it cannot be interfered with in the second appeal. 14. I have given anxious consideration to the rival submissions made by the learned counsel on either side. The execution of Ex.A1 by A.Vaidyalinga Nadar has been upheld by the courts below and a decree is granted by the lower appellate court as against the property left by the deceased. Admittedly, the suit has been filed by the plaintiff against the defendant not as an heir and a legal representative of A.Vaidyalinga Nadar, but as a survivor in the joint family, the defendant as Kartha of the joint family for recovery of the amount from the estate of the deceased A.Vaidyalinga Nadar. 15. It is admitted by DW.1 in his evidence that the defendant and his brother are living together as joint family and one sister is residing with them and the other sister is in States. His evidence indicated that the properties are joint family property and it remains undivided. 16. In AIR-1937-Madras-182 cited supra, it was observed that a suit on promissory note instituted against the undivided son of a Hindu promisor governed by the Mitakshra Law after the latter's death cannot be regarded as one against the heirs or the representatives of the promisor, because it only seeks to enforce the Hindu law theory of pious obligation of the sons in respect of property which the sons have taken by survivorship. It, however, held that the pious obligation can arise only on the assumption of the existence of a debt due by the father and in such a case, the https://hcservices.ecourts.gov.in/hcservices/ onus of proving the existence of a debt must be prima facie laid on the creditor, who can call in aid the presumption permissible under the general law of evidence, namely, Section 114 of the Indian Evidence Act and not the presumption under Section 118(a) of the Negotiable Instruments Act. 17. It is held that the special rules of evidence laid down in Section 118 of the Negotiable Instruments Act must have been intended to apply only as between the parties to the instrument or those claiming under them. In other cases, the presumption can only be in the terms enacted in Section 114 of the Indian Evidence Act (vide Illustration (c)) which by the use of expression “may presume” leaves it to the court to apply the presumption or not according to circumstances. These observations were quoted with approval by their Lordships of the Honourable Supreme Court in the case of Official Receiver Vs. Abdul Shatoor [AIR-1965-SC-920]. 18. In the present case, the plaintiff has stated in the plaint that the loan in question was taken by A.Vaidyalinga Nadar for developing the joint family business and that the defendant is the Kartha of the said family after the death of A.Vaidyalinga Nadar. There is nothing in the statement of PW.1 that he had sued the defendant in his capacity as person claiming under A.Vaidyalinga Nadar or as his heir and legal representative. On the other hand, in view of the averment contained in the plaint that the loan was taken by A.Vaidyalinga Nadar for developing the business, there is no escape from the conclusion that the defendant was not sued as an heir of the deceased A.Vaidyalinga Nadar, but as the Kartha of the joint Hindu family. In this view of the matter, it is not permissible to raise the statutory presumption regarding consideration contained in Section 118(a) of the Negotiable Instruments Act. However, even though Section 118 of the Negotiable Instruments Act is not applicable, but presumption can be made in the terms enacted in Section 114 of the Indian Evidence Act vide Illustration (c), which is as follows:- “That a bill of exchange accepted or endorsed was accepted or endorsed for good consideration” 19. The question that arises for consideration is whether in the facts and circumstances of the present case, the presumption under Section 114(c) of the Indian Evidence Act can be called in aid? The plaintiff has stated in clear terms that he paid Rs.70,000/- on several occasions and the father of the defendant was issuing slips to the plaintiff whenever he borrowed money from the plaintiff. It is further stated that when A.Vaidyalinga Nadar was ill and bed-ridden, the plaintiff requested him to pay the borrowed amount and make some arrangements. The father of the defendant expressed his inability and gave a cheque dated 7.11.1997 for Rs.70,000/- after calculating the amount payable by the defendant's father and promised to discharge the debt after his recovery from the illness and take back the cheque. https://hcservices.ecourts.gov.in/hcservices/ 20. In his evidence, PW.1 has stated in his cross examination that pursuant to the issuance of the cheque by the father of the defendant, the slips were returned back to the father of the defendant and he tore the said slips. His evidence indicated that only after the issuance of the cheque by A.Vaidyalinga Nadar, the slips were returned to him as the defendant's father had given the cheque for the amount borrowed. Since because the plaintiff did not specifically aver about the destroying of the slips by tearing them off by the father of the defendant, his evidence cannot be disbelieved. Both the courts below have accepted the said evidence and I do not find any improbability in the evidence of PW.1 21. It is the plea of the defendant that the plaintiff under the guise of visiting the father of the defendant when he was bed ridden, must have taken away a cheque leaf from the cheque book and the defendant came to know this only when he checked up the accounts after the death of his father and he found that three cheque leaves were missing from the cheque book belonging to his father. Hence, it is his specific case that he verified the accounts and found that three cheque leaves were missing from the cheque book that was kept by his father by his side when he was bed-ridden. 22. The evidence of DW.1 indicated that the cheque book from which cheque leaves were missing was with the defendant, as he has specifically stated that he verified the cheque book. But, the defendant has not filed the cheque book to show the missing of cheque leaves as contended by him. The defendant has not filed any complaint in respect of missing of cheque leaf nor given any instructions to the Bank not to make any payment. 23. The learned counsel for the appellant contended that the plaintiff has not presented the cheque to the Bank and that would show that the cheque leave was stealthily removed by the plaintiff. It is stated by the plaintiff that A.Vaidyalinga Nadar promised to discharge the debt after the recovery from his illness and take back the cheque. But, within a month thereafter, A.Vaidyalinga Nadar had died. Thereafter, there has been exchange of notices between the plaintiff and the defendant regarding the suit transaction. On a careful scrutiny of the entire evidence, I do not find any material to suggest that Ex.A1 is not supported by consideration nor to doubt the genuineness of Ex.A1 cheque. There is nothing on the record to show that the plaintiff had any motive for bringing a false case against the defendant. There is not even a suggestion to that effect from the defendant's side. It is also incomprehensible that if a cheque has been stolen and misused by the plaintiff, the defendant would have remained silent. Judging the evidence in the light of the presumption under Section 114(c) of the Indian Evidence Act, I am inclined to hold that it is a fit case where the general presumption should be applied. 24. On a perusal of Ex.A1, it contains the signature of A.Vaidyalinga Nadar only in Tamil. Only the other recitals in https://hcservices.ecourts.gov.in/hcservices/ Ex.A1 are filled up in English. DW.1 admitted in his evidence that his father used to sign only in Tamil. He has also admitted that at the time of issuance of the cheque i.e. on 7.11.1997, though he was laid up in bed, but he was in good health condition. DW.2, the Doctor who has given treatment to A.Vaidyalinga Nadar only stated that A.Vaidyalinga Nadar was under his treatment for diabetics and asthma. There is nothing to suggest that A.Vaidyalinga Nadar was not in a position to put his signature. DW.1 has stated that normally the cheque book would be kept in the shop and the cheque would be sent to his father for his signature and after obtaining his signature, the cheque would be sent back to the shop. He has also admitted that the recitals in the cheque have been written by the new accountant of his father. The signature found in Ex.A1 is found to be very legible and there is nothing to suggest that it has been forged. It is pertinent to point at this juncture that the defendant has not taken any steps to get the opinion of an handwriting expert regarding the genuineness of the signature. Therefore, by applying the presumption under Section 114 of the Indian Evidence Act, I am unable to disagree with the concurrent findings of the courts below. 25. In view of the discussions made above, I do not find any reason to receive the additional documents sought to be filed in CMP.No.122/2010 and the same is liable to be dismissed. 26. The net result of the forgoing discussions is that the substantial questions of law raised in this second appeal are answered against the appellant. Accordingly, this Second Appeal is dismissed. However, in the circumstances of the case, there will be no order as to costs. Consequently, the connected CMPs are also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Srcm To: 1.The II Additional District and Sessions Judge (FTC) Madras 2.The IV Assistant Judge, City Civil Court, Chennai 3.The Record Keeper, VR Section, High Court, Madras 1 cc To Mr.N.Baskaran, Advocate, SR.84382 1 cc To Ms.K.Bhanumathi, Advocate, SR.81092 SA.No.911/2004 mbs(co)pmk.22.1.2010 https://hcservices.ecourts.gov.in/hcservices/