THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT Nos.711 of 1993 and 1627 of 1994 COMMON JUDGMENT: The defendant in O.S.No.54 of 1988 on the file of the Additional Subordinate Judge, Tenali is the appellant herein. The suit was one filed for enforcement of three mortgage debts each for the value of Rs.8,000/- executed by the defendant on 06.12.1985, 08.04.1986 and 16.04.1986 with interest at 12% per annum. According to the case of the plaintiff on the above dates the defendant paid a sum of Rs.8,000/- each and there was a stipulation for payment of the interest at compound rate and the registered mortgage deeds were executed creating charge over the schedule properties and since the defendant has not paid the amounts the suit was filed for recovery of the said amounts. The defendant has filed a written statement contending that he does not know the plaintiff but he has got mutton business at Tenali and one Jasti Vasudevarao, who was examined as P.W.1, was known to him and both of them belong to Muthimsettipalem and he was lending the money and the defendant has borrowed a sum of Rs.5,000/- from him for the construction of his house and charging interest at 72%. The amount of Rs.5,000/- was paid and the defendant was made to affix his signature and he was taken to the Registrar office and the defendant does not know the contents of those documents. The acquaintance with Vasudevarao was that he was also engaged an advocate in O.S.No.502 of 1986. The further allegation in the written statement is in April, 1986 also the defendant was taken by Vasudevarao to the Sub-Registrar office at Tenali and he was again made to affix his thumb impression but he did not borrow the money under the mortgage deeds dated 08.04.1986 or 15.04.1986. It was further pleaded on enquiry the defendant came to know after the receipt of the suit summons that the documents were got registered at the instance of said Vasudevarao must be the suit mortgage bond and therefore, they are not valid and not supported by consideration. There was no necessity to borrow the suit amount at such short intervals. Therefore, the defendant denied the liability to pay the suit amounts. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the suit mortgage deeds are supported by consideration? 2. To what relief? On 26.03.1991 the following additional issue is settled: 1. Whether the suit mortgage bonds are validly executed and duly attested? On behalf of the plaintiff, P.Ws.1 to 5 were examined and marked Exs.A- 1 to A-8 and on behalf of the defendant, D.W.1 was examined and no documents were marked. After considering the evidence on record, the lower Court has passed a preliminary decree and aggrieved by the said judgment, the appeal in A.S.No.711 of 1993 is filed and thereafter in pursuance of the preliminary decree a final decree has been passed in I.A.No.140 of 1992 and challenging that the appeal in A.S.No.1627 of 1994 is filed. The points that arise for consideration are: 1. Whether the mortgage bonds said to have been executed by the defendant under Exs.A-1 to A-3 are valid and supported by consideration? 2. Whether the preliminary decree and the consequential final decree passed against the appellant is legal and enforceable? POINTS: The contention of the learned counsel for the appellant is that there was a specific plea of the plaintiff that the amount was lent by the plaintiff Seetharamamma whereas in the course of evidence P.W.1 was examined and he claims to have given the money under all the three mortgage deeds and consequently the plaintiff was kept back from giving evidence in the Court and non-examination of the plaintiff will not establish the truthfulness of the claim of the plaintiff and consequently the decree is passed by the learned Subordinate Judge, Tenali is not proper. P.W.1 is no other than Vasudevarao, who is an advocate, with whom the defendant is said to be having acquaintance and who also admits to have borrowed a sum of Rs.5,000/- and without knowing the contends of it executed a registered deed. The evidence of P.W.1 goes to show that his relationship with the plaintiff is that of a wife though it was not mentioned in the plaint and the plaintiff was described as a wife of late Guruswamy. The fact from the evidence of P.W.1 cannot be doubted that the plaintiff was living with P.W.1. The further fact that P.W.1 was lending the money is admitted by the defendant himself in the written statement. Therefore, whatever moneys are lent by P.W.1 can only be belonging to him and there is no bar that a person, who lent the money cannot take a deed of mortgage in favour of another person and though there is no presumption about supporting of the consideration under a mortgage deed, which is denied without legal proof of its attestation and passing of consideration unlike a promissory note. The burden is definitely on the plaintiff to show that the mortgage deeds were validly executed and consideration was paid. The question will be as to whether the non-examination of the plaintiff will disprove the transaction and the defendant will not be liable to pay the suit amounts. In the circumstances of this case, where the defendant himself admits that P.W.1 is known to him and he has borrowed money from P.W.1 at the earlier point of time and in fact the plaintiff is said to be living with P.W.1, it cannot be said that the non- examination of the plaintiff will disprove the suit transaction. If the evidence of P.W.1 and other witnesses is believed, then the liability under the mortgage deeds cannot be denied. So far as the first mortgage deed Ex.A-1 is concerned, it is when the case of the defendant that he claims to have borrowed a sum of Rs.5,000/- and the amount was paid by Vasudevarao and he affixed his thumb impression. Even in his evidence as D.W.1, he does not specifically dispute about the execution of Ex.A-1 mortgage deed though passing of the consideration of Rs.8,000/- is disputed. However, it is to be mentioned that even in the written statement itself, the defendant has admitted that in April, 1986 he was taken by Vasudevarao to the Registrar office and he was made to affix his signatures on some document, which, evidently, relates to Exs.A-2 and A-3 and he claims to have known that they are the mortgage deeds, which were the basis of the suit after the receipt of the suit summons. Though the defendant may claim to be an illiterate, it is not his claim that he is not worldly wise and does not know how to manage finances and when particularly when he was carrying on mutton business and when P.W.1 and defendant himself belongs to the same village as per the written statement of the defendant. It is to be noted that the borrowing, according to the defendant, is for construction of a house a sum of Rs.5,000/- has been borrowed. Therefore, the subsequent need for further investment in the house construction cannot be ruled out. The contention of the defendant that he has no need to make further borrowings, does not appear to be probable. As stated earlier, evidently, the burden is on the plaintiff to prove the execution of the mortgage deeds and passing of the consideration. P.W.2, is the attestor on Ex.A-1 and according to him, a sum of Rs.8,000/- was paid by P.W.1 to the defendant before the Registrar office and it was endorsed so. He is said to be the karanam of Annavaram village and where he was also writing the documents. In his evidence there is nothing to suspect his credibility and in fact no attempt was also made to discredit him in the cross- examination. P.W.3, who is the attestor on Ex.A-2 and his evidence also goes to show that a sum of Rs.8,000/- was lent by P.W.1 under Ex.A-2 and he attested the document. His evidence also goes to show that he went to the Registrar office. The evidence of P.W.4 goes to show that he is the attestor on Ex.A-3 and a sum of Rs.8,000/- was paid before the Registrar and it was registered. He is also a businessman and in his evidence also there is no much material to show that he should be an interested party for fabricating a document. The important evidence is that of P.W.5, who is the scribe of Exs.A-1 to A-3 and his evidence clearly goes to show that under all the documents a sum of Rs.8,000/- was paid by P.W.1 to the defendant and the defendant has executed the documents Exs.A-1 to A-3. He denied that he was a tout in the Courts except putting suggestion about denying the execution, there is no other material to discredit his evidence. As against this evidence, the only evidence of D.W.1 is a bare denial of execution of Exs.A-1 to A-3. His evidence does not disclose any personal animosity with P.Ws.2 to 5 and their interest in fabricating a document. His evidence also shows that he has affixed his thumb impressions before the Registrar even on Exs.A-2 and A-3. Therefore, the evidence of P.W.1 clearly goes to show that he has consciously and unknowingly executed Exs.A-2 and A-3 and the possibility of fabrication is remote. The evidence of P.Ws.1 to 5 clearly goes to show that the money was paid. Therefore, it is a clear case where the execution of the mortgage deeds and passing of the consideration is proved and the non-examination of the plaintiff is not a circumstance to non-suit the plaintiff when the evidence of the defendant himself shows that Vasudevarao was the person, who was lending the money and from whom borrowed the money. Therefore, the lower Court has rightly accepted the liability of the defendant under the mortgage deeds and consequence of the preliminary decree passed the final decree and I find there are no infirmities. Therefore, there are no merits in both the appeals. Accordingly, both the Appeal Suits are dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 21-10-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT Nos.711 of 1993 and 1627 of 1994 Date: 21-10-2011 MR