IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.07.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.No.762 of 2002 1.Ramayeeammal 2.Dhamayanthi 3.Premaleka .. Appellants/Defendants 1 to 3 -vs- 1. C.Karthikeyan 2. Erode Cooperative Housing Society Ltd rep by its President Erode Taluk Erode District .. Respondents/ Plaintiff and 4th Defendant This appeal is filed under Section 96 of CPC against the Judgment and Decree dated 28.6.2002 in O.S.No.61 of 2001 on the file of Court of Additional District Judge -cum- Fast Track Court No.1, Erode. For appellants : : Mr.V.P.Sengottuvel For respondents : : Mr.S.Sethuraman-R1 Mr.C.Prakasam-R2 J U D G M E N T This appeal has been projected by the appellants/defendants as against the Judgment and decree dated 28.6.2002 made in O.S.No.61 of 2001 on the file of Additional District Court-cum Fast Track Court-1, Erode. 2. The relevant facts of the case are set out haereunder: On 22.9.1988, the second defendant's husband Shanmugam, during his life time, has owed a sum of Rs.3,00,000/- from the first respondent/plaintiff promising to repay the same with interest at the rate of 18% p.a and executed the suit pronote. Further he has not paid any amount either towards principal or interest. The first appellant/first defendant is the mother and second appellant/second defendant is the wife and third appellant/third defendant is the daughter of the deceased Shanmugam. Inasmuch as the appellants 1 to 3 have succeeded the estate of deceased Shanmugam of legal representatives, they are bound to discharge the loan amount borrowed by him. Since the appellants have failed to repay the loan amount, the suit is laid for recovery of a principal sum of Rs.3,00,000/- together with interest of Rs.54,000/- totalling in all a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.3,54,000/- directing the appellants/defendants 1 to 3 to pay the said amount of Rs.3,54,000/- with interest at the rate of 18% p.a on the principal amount of Rs.3,00,000/- till the date of payment from and out of the estate of deceased Shanmugam. 3. The appellants/defendants have filed a written statement taking the stand that the deceased Shanmugam has no necessity to borrow the suit pronote amount and further he has not left behind any estate and moreover the appellants are not bound to discharge the purported suit claim and added further the suit property is the separate property of the second appellant/second defendant, who has purchased out of her own separate funds and that the deceased Shanmugam has not contributed any amount or for the construction of the building and more over the second appellant/second defendant has borrowed loan from the second respondent/4th defendant for construction of building by mortgaging the suit property and in the said transaction, the deceased Shanmugam has remained only a guarantor and that neither he has borrowed any money nor as he has mortgaged the suit property and that the second appellant/second defendant has discharged the loan with the second respondent/4th defendant only from and out of her separate funds and consequent upon the death of Shanmugam, the appellants 1 to 3 have not inherited any right, title or interest in the suit property and therefore has prayed for dismissal of the suit. 4. Before the trial Court, on the side of the first respondent/plaintiff witnesses P.W.1 to P.W.3 have been examined and Exs A1 to A3 have been marked and on the side of the appellants / defendants, D.W.1 and D.W.2 have been examined and Exs B1 to B5 have been marked. 5.The trial Court has framed in all three issues. On an appreciation of oral and documentary evidence and after scrutinizing the same , the trial Court has ultimately come to the resultant conclusion that the suit promissory note has been supported by consideration and the same is a true one and further the same has been executed by the husband of the second appellant viz., deceased Shanmugam and has also directed the appellants/defendants to pay a sum of Rs.3,54,000/- and to pay interest at 12%p.a. for the principal amount of Rs.3,00,000/- from the date of filing of the plaint till the date of judgment and an interest at the rate of 6% p.a. has been awarded from the date of decree till the date of realisation with costs. 6. The points that arise for determination in this appeal are "1.Whether the suit promissory note is supported by a valuable consideration and the same has been executed by the deceased Shanmugam ? 2. Whether the suit property belongs to the second appellant/second defendant in her individual capacity? https://hcservices.ecourts.gov.in/hcservices/ 3. Whether the first respondent/plaintiff is entitled to claim the suit amount as prayed for in the plaint? 7. This Court has heard the learned counsel appearing for the parties and noticed their contentions. 8. Point Nos.1 to 3 Contentions ,Discussions and Findings on Point Nos 1 to 3: The learned counsel appearing for the appellants/defendants urges before this Court that the deceased Shanmugam has no necessity to borrow a sum of Rs.3,00,000/- from the first respondent/plaintiff on 22.9.1998 and this aspect of the matter has not been looked into by the trial Court in a proper perspective and further the trial Court should have held that the suit property is a separate property of the second appellant, who has purchased the same out of her separate funds and it is not correct to state that the second appellant's husband Shanmugam has purchased the suit property out of his income in the name of his wife viz., the second appellant and further the deceased Shanmugam has not contributed any has amount to the suit property or for the construction of the building and in fact the second appellant has availed the loan from the second respondent/4th defendant in regard to the construction of the building and indeed the second appellant's husband Shanmugam has only been a guarantor and he has not either mortgaged the suit property or borrowed any amount from the second respondent/4th defendant and the second appellant/second defendant alone has availed the loan from the second respondent/4th defendant bank and she has only discharged the said loan from and out of her separate funds and also that the suit property has been purchased by the second appellant/second defendant from out of the gifts made by her parents at the time of her marriage and from the money she received by selling her share of the property from her parents and these aspects have not been properly appreciated by the trial Court and as a matter of fact two signatures seen in Ex A1 pronote dated 22..9.1998 are totalling differing from one another and therefore, the pronote might have been created by the first respondent/plaintiff and only from the jewels, the second appellant/second defendant obtained through sale in Ex B1 and after selling her jewels, she has purchased Ex A2 property and these relevant factors have not been appreciated by the trial Court properly which has resulted in miscarriage of justice and therefore prays for allowing the appeal to prevent the aberration of justice. 9. In response, the learned counsel appearing for the first respondent/plaintiff contends that the trial Court has come to the conclusion that the first respondent/plaintiff is entitled to claim the suit amount with interest etc and that the trial Court has taken into consideration of the material facts and circumstances and has come to a proper conclusion in decreeing the suit and therefore the same need not be interfered by this Court in appeal. 10. P.W.1/plaintiff in his evidence has deposed that S.N.Shanmugam has received a sum of Rs.3,00,000/- from him on https://hcservices.ecourts.gov.in/hcservices/ 22.9.1998 and has executed Ex A1 pronote and the agreed rate of interest is 18% p.a. and the said pronote has been written by Kesavan and one P.S.Murugesan has signed as a witness and only after the receipt of money from him, the said Shanmugam has executed the pronote by affixing his signature over the stamp and below the same and that he has been the same and at that time, two witnesses have witnessed, Shanmugam putting his signature in Ex A1 pronote and the said Shanmugam has expired on 27.5.1999 and till his life time, he has not paid any amount towards principal or interest and after the death of the said Shanmugam, the appellants 1 to 3 are enjoying in enjoyment of the properties of the deceased Shanmugam and they have not repaid the loan amount inspite of demand. The further evidence of P.W.1 is to the effect that the deceased Shanmugam has purchased the suit property in the name of his wife out of his investment and the second appellant has no other property except the suit property and in the suit property, a construction has been built and the second appellant and her husband has availed loan amount of Rs.2,00,000/- from the second respondent/4th defendant and they have repaid the said loan to the said Bank by means of adjusting the deceased Shanmugam's Insurance amount. 11. It is the evidence of P.W.2 that Ex A1 pronote has been written in P.W1's garment office at about 11.00 a.m., on 22.9.1998 and that the deceased Shanmugam has taken him for affixing his signature in the pronote and at the time when he went to the office of the plaintiff, at that time, the plaintiff and Kesavan have been present and that the recitals to the pronote have been dictated by the said Shanmugam and firstly Shanmugam has affixed his signature in the pronote and later he has signed any, there is no difference in the signatures affixed by the said Shanmugam. 12. P.W.3(scriber of the pronote) in his evidence has stated that the deceased Shanmugam on 22.9.1998 receiving the consideration of Rs.3,00,000/- from the first respondent/plaintiff has executed the pronote and the said Shanmugam has affixed his signature over the stamp and below the pronote and he has witnessed the same along with the plaintiff and there is no difference in the signature of Shanmugam and that the plaintiff has lent the money from his own funds. 13. D.W.1/second appellant during the course of her examination has deposed that in Ex A1 the signature of her husband over the stamp and below , they do not belong to her husband and two signatures in the said pronote are differing and specifically she cannot say what is the difference and that the property belongs to her and she has purchased the suit property from and out of the money given to her parents at the time of her marriage and further she has also received a money from and out of the sale proceeds of the ancestral property of the mother being sold and she has lent a sum of Rs.50,000/- for interest and only from that amount she has constructed the building etc and that the sale deed of the suit property is with the second respondent/4th defendant and the sale effected by her along with her mother, brother and sister etc is Ex B1 and the suit property has been purchased as a vacant site in which she has built the house https://hcservices.ecourts.gov.in/hcservices/ later and for constructing the house, she sold 30 sovereign of jewels and given to her by her parents and since the money has been insufficient, she has raised a mortgage with the second respondent/4th defendant and received a sum of Rs.2,00,000/- and in the said loan, her husband signed as a guarantor and at the time of loan, the second respondent/4th defendant has asked her to take insurance policy and accordingly a group insurance policy has been taken ad the bank passbook Ex B2 and since her husband has expired, the amount received from the policy has been adjusting towards the said loan with the bank and balance amount, the bank asked her to remit the same and that has also been remitted by her and it is not correct to state that the suit property has been purchased from and out of her husband's income. Continuing further D.W.1 in her cross examination has specifically admitted that she got married in the year 1979 and during marriage time, her parents have not given to her money or jewels. 14. D.W.2 in his evidence has deposed that the second appellant's husband has been engaging in a money lending business and that he has worked in CD Mills and further either the second appellant or her husband has no necessity to obtain loan from the first respondent/plaintiff and that the suit property has been purchased by the second appellant in which she has constructed a house and that at the time of marriage of the second appellant 40 sovereign and a sum of Rs.50,000/- has been given to her and more over the parents of the second appellant possessed 7 acres of land and only from and out of the sale proceeds of 7 acres of land sold in 1993, the parents of the second appellant has given to her a sum of Rs.50,000/- and other sreedhana properties have also been given to the second appellant. 15. It is pertinent to point out that D.W.2 in his cross examination has categorically stated that in the ancestor's property sold by the second appellant, he has not signed and the said property has been sold for Rs.3,60,000/- in favour of Rangasamy and that he is not aware of the details of the sale transaction. 16. Ex A1 is the suit pronote dated 22.9.1998. The case of the first respondent/plaintiff is that the deceased Shanmugam, after having received a sum of Rs.3,00,000/- has executed the suit pronote and that the suit pronote is supported by adequate consideration and the said Shanmugam has executed the pronote in front of witness P.W.2 Murugesan and the said pronote has been executed by P.W.3 Kesavan and the rate of interest for the suit pronote has been agreed to at 18% p.a ad since P.Ws1 to 3 have spoken about the execution of pronote by the deceased Shanmugam after receiving the consideration of Rs.3,00,000/-. It is to be construed as presumption in law that the suit pronote is a true and valid one and the same is supported by an adequate consideration. But the same is a rebuttal one. 17. Countering the plaintiff's case, the appellants contention is that the deceased Shanmugam has no necessity to execute the pronote and there has been no occasion for him to receive a sum of Rs.3,00,000/- and that it is the evidence of D.W.1/second appellant https://hcservices.ecourts.gov.in/hcservices/ that two signatures in the suit pronote are differing and those signatures in the suit pronote do not belong to the deceased Shanmugam and that the first suit prontoe has been supported by an adequate consideration and moreover the suit property has been purchased by the second appellant from and out of second appellant's share amount of Rs.50,000/- which she has obtained from the sale proceeds of the ancestral property being sold along with her mother, brother and sister etc and further the second appellant alone is availed loan from the second respondent/4th defendant Bank and her husband deceased Shanmugam has stood only as a guarantor and after the death of her husband, the group insurance amount has been adjusted towards the loan amount and even the balance of Rs.3,200/- due to the bank has been remitted by the second appellant/second defendant and the second defendant after purchasing the vacant site has constructed the house with her own separate funds and therefore, by any stretch of imagination , it cannot be construed that the suit property is the one belonging to that of her deceased husband. 18. The appellants rely heavily on Ex B1 sale deed dated 3.6.1993 executed by the second appellant's mother and others two and in favour of Kansawamy Gounder in respect of their ancestral property, the sale consideration mentioned in Ex B1 is Rs.1,25,000/-. Ex A2 is the sale deed dated 27.11.1995 for Rs.37,000/- in favour of the second appellant/second defendant executed by J.Ambika, w/o Jaganathan. Even though, the appellants have taken the stand that in Ex A1, the signature of Shanmugam do not belong to that of him yet and when they have taken further plea that the same differs, they have not taken any steps for sending the said document for comparison with the proved signature of the said Shanmugam for examining the same with an aid of an handwriting expert. 19. It is to be noted that sending a document for comparison or to an expert, the same will have to be decided by a Court of law depending on the facts and circumstances of the case. However, a Court of Law is empowered to compare the disputed signature with that of a proved one as per Section 73 of the Indian Evidence Act though for making a comparison, the Court has to act slowly and with great circumspection in the considered opinion of this Court. 20. In fact it is represented on the side of the first respondent/plaintiff that the deceased Shanmugam has been doing money lending business and he has borrowed money from outsiders and he has absconded for some time and later even the second appellant/second defendant has given a complaint to the police that her husband has been missing and earlier Shanmugam has worked in C.D.Mills and that he has been doing a money lending business etc., 21. The burden of proving that the pronote has been executed by the deceased Shanmugam(husband of D.W.1) for consideration lies on the plaintiff initially. As soon as the execution of pronote is established, then then the burden shifts on the defendant to prove that the consideration mentioned in the pronote is not a true one. Indeed the presumption under Section 118(g) of Negotiable Instruments Act is rebuttal. https://hcservices.ecourts.gov.in/hcservices/ 22. As far as the present case is concerned, the appellants have not established by means of an acceptable evidence that the suit pronote has not been supported by due consideration mentioned therein. On a careful consideration of respective contentions and this Court after assessing the evidence of P.W1 to P.W.3 comes to inevitable conclusion that Ex A1 pronote has been executed by the deceased Shanmugam, after receiving a consideration of Rs.3,00,000/- in the presence of witnesses and resultantly it is held that the pronote is a true, valid and a genuine one supported due consideration and that the first respondent/plaintiff has proved the same accordingly. 23. Coming to the next plea that the suit property is an individual and separate property of the second appellant/second defendant though the second appellant/second defendant has taken a plea that she has received a sum of Rs.50,000/- towards her share from and out of the sale proceeds of the ancestral property being sold by her mother , brother and sister etc and later she has purchased a vacant site viz., the suit property. It is to be borne in mind that D.W.1 herself has admitted in her cross examination that at the time of her marriage in the year 1979 her parents have not given her any money or jewels and therefore, the evidence of D.W.2 to the effect that the second appellant's parents have given her at the time of marriage 40 sovereigns and Rs.50,000/- cannot be accepted as a trustworthy one and in fact it appears that D.W.2 is not speaking the truth in this regard as opined by this Court. 24. Be that as it may, even though, D.W.2 in his cross examination has candidly stated that the second appellant's father has sold the property for a sum of Rs.3,60,000/- in favour of Rangasamy, he has stated that he does not know about the same. More over, Ex B1 sale deed dated 3.6.1993 refers to the sale consideration of Rs.1,25,000/-. At this stage, the learned counsel for the appellants contends that in Ex B1 document though the sale consideration is mentioned as Rs.1,25,000/-, but real sale consideration has been more and therefore, the said document cannot be taken into account for the consideration amount of Rs.3,60,000/- as spoken to by D.W.2. 25. Even otherwise, it is the specific case of the appellants that the second appellant has received a sum of Rs.50,000/-from and out of the sale proceeds of the ancestral property towards her share. The ancestral property has been sold out as per Ex B1 sale deed dated 3.6.1993 in which the second appellant figures as one of the vendee. However, the suit property vacant site has been purchased by the second appellant in the year 1995 namely 27.11.1995. 26. It is not in dispute that the second appellant has mortgaged Ex A2 property with the second respondent/4th defendant and has received the loan of Rs.2,00,000/-. The deceased Shanmugam has stood as a guarantor to the loan availed by the second appellant with the second respondent/4th defendant bank. For selling the jewels and constructing the building in Ex A2 property vacant site, there is no acceptable, satisfactory evidence before this Court except IPSI DIXI https://hcservices.ecourts.gov.in/hcservices/ evidence of the second appellant/D.W.1 in the considered opinion of this Court. Moreover, there is also no cogent, convincing and coherent evidence on the side of the appellants to prove that only from and out of the share amount of Rs.50,000/-, the second appellant has purchased the suit property by means of Ex A2. There is a time gap of two years from the date of Ex B1 sale deed. More over, the bank has adjusted the insurance amount towards its loan and the bank has also further received the balance of Rs.3,200/- from the second appellant and has closed the account,even though, the appellants have not raised any objection in regard to the group insurance policy amount being adjusted towards the bank loan amount availed by the second appellant. 27. On an overall assessment of the relevant facts, coupled with the evidence of D.W1 and D.W.2, this Court is of the considered view that the appellants have not established the reasonable nexus or proximate connection clearly to the satisfaction of this Court that only from and out of the share amount of Rs.50,000/- the second appellant has received from the sale proceeds, she has purchased the vacant site in the year 1995 by means of Ex A2 document and in that view of the matter, the first respondent/plaintiff is entitled to the suit relief as prayed for in the plaint and in short looking at from any point of view, the findings arrived at by the trial Court are just, fair and valid one and this Court is in agreement with the said findings rendered and resultantly the appeal fails and the same is dismissed without costs. 28. In the result, the appeal is dismissed and resultantly, the Judgment and decree of the trial Court in O.S.No.61 of 2001 are confirmed for the reasons assigned by this Court in this appeal. Considering the facts and circumstances of the case, there shall be no order as to costs. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar sg To 1. The Additional District Judge-cum-FTC-1, Erode 2. The Record Keeper, V.R.Section, High Court, Madras. +1 cc to Mr.V.P.Sengottuvel, Advocate, SR.No.30312 +1 cc to Mr.S.Sethuraman, Advocate, SR.No.30092 A.S.No.762/2002 SSN {CO} TP/22.7.2009. https://hcservices.ecourts.gov.in/hcservices/