1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 531 OF 1989 Subhash Ramkrishna Chidrawar .. APPELLANT (Orig.Defendant) VERSUS 1) Watchalabai w/o Narayan Pensanwar 2) Sudhakar Narayan Pensanwar .. RESPONDENTS (orig. Plaintiffs) ***** Mr. P.G.Godhamgaonkar, Advocate for Appellant; ----- CORAM : K.U.CHANDIWAL, J. DATE : 10th June, 2009. JUDGMENT : 1) Heard Mr. Godhamgaonkar for the appellant extensively. 2) The decree of Rs. 11,500 by the first Appellate court in RCA No. 176/1985 is a subject of challenge. The learned CJJD, Hadgaon in RCS No. 104/1981 did not entertain the decree as he dismissed the suit. 3) The Appeal was admitted on 1st February, 1990 without formulating any substantial question of law. 4) The interse status of the parties and their relations is not in controversy. Watchalabai, the plaintiff, was sister of Ramkrishna. Subhash (Appellant) and Sudhakar (original plaintiff no.2) are the real brothers. Sudhakar is given in adoption 2 to Narayan and Watchalabai. 5) It is accepted position that during the life time of Narayan, Subhash was with him and learnt business and agricultural affairs. After death of Narayan in the year 1975, Sudhakar continued to assist Watchalabai. He was maintaining three accounts of Watchalabai including her grocery shop. He was assisting her business activities. 6) The controversy centers to a debit entry in the account dated 17.5.1979 made by appellant Subhash in his name whereby he has withdrawn Rs. 15,000/- in cash for marriage and deposited Rs. 3,500/- and the balance was Rs. 11,500/-. 7) The defendant/appellant basically did not dispute that the entry, Exhibit-32, was made by him or that the accounts of Watchalabai were maintained by him. His evidence illustrate that the account books are maintained in normal course of business and they are correct. He has accepted that name of person to whom the amount is paid is written in the account book and debited in his name. The defendant was vocal in accepting that he indeed received Rs. 15,000/- as mentioned in the debit entry in Exhibit-32. According to the defendant/appellant, he has received this amount to meet marriage expenses of Sudhakar, adopted son of Watchalabai and he has paid over the charges towards S.T and purchase of grocery articles, clothes, grains etc. According to him, balance of Rs. 3,500/- was handed over to Watchalabai after 3-4 days of the marriage. This theory, as propounded by the appellant Subhash, though weighed by the learned CJJD, Hadgaon, did not materialize with the learned District Judge, who negatived the 3 same. The findings recorded to answer the issue by the learned CJJD, particularly in paragraph 9 of his judgment, are more leaning to the assumption and surmises than fact situation. 8) It was the defendant, who accepts, having made the entry in the account, received the amount of Rs. 15,000/-, it was therefore not incumbent to hold that the plaintiff was required to prove such payment to the defendant/appellant and plaintiff failed to do so. The observations in paragraph 10 that the burden to show that the amount was hand loan undoubtedly lies on the plaintiff is misplaced and erroneous. As unfortunately, the learned Judge in the same paragraph observes - “ that it was the defendant, who had received the hand loan of Rs. 15,000/- from Watchalabai and the second transaction of returning Rs.3,500/- by the defendant to Watchalabai. According to learned CJJD, both these entries must have appeared separately. 9) There is no reason for the defendant to make such entry to incriminate himself. The observation of the learned CJJD “ that the entry must have been made after 17th May, 1979,” is contrary to record. If the defendant has indeed spent the amount received to meet incidental expenses of marriage of Sudhakar, it should have been so established by the defendant by proving receipt from MSRTC or some grocery bills or any person to indicate such demeanor on his part. 10) It is curious it was the defendant, who was managing the affairs of Watchalabai and he was even maintaining the accounts. Had there been deposit, as he has indicated, after adjusting the remainder, it was the defendant, who should have made the 4 respective credit or expense entries, but there is nothing on this score. This follows that the amount of Rs. 11,500/- remained due against the defendant as he has withdrawn the amount for marriage expenses. 11) The contention of the defendant that he has, at the material time, three withdrawals of Rs. 6,000/-; Rs. 7,000/- and Rs. 500/-, consequently he had no need to withdraw Rs. 15,000/- from the plaintiff, is betrayed by the very evidence of the defendant as in one part he says he has no reason to receive the amount and in second part he says that he has received the amount, but he has apportioned the same by meeting the expenses. Even if the entries for withdrawal of Rs. 6,000/-, 7,000/- or 500/- are proved by the defendant, that will not necessarily mean that in the year 1979, the defendant could manage affairs of two marriages of exhausting of merely 13,000/- and it could not be more than that. 12) In the situation, the observation of the learned first Appellate court in decreeing the suit, is in tune with the legal position and in tune with the evidence. Consequently, the appeal lacks merit, it is dismissed. ( K.U.CHANDIWAL) JUDGE bdv/office/sa531.91