THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.263 OF 1997 JUDGMENT:- The second defendant in O.S.No.383 of 1994 on the file of the Court of I Additional Senior Civil Judge, Vijayawada is the appellant herein. The suit one was filed for recovery of Rs.48,050/- being the principal and interest due on a pronote. The allegations in the plaint goes to show that on 10-12-1983 the defendants borrowed a sum of Rs.40,000/- from the plaintiff agreeing to repay the same with interest @ 24% p.a. and in spite of repeated demands the amount was not paid. A legal notice was given but a false belated reply was given by the defendants. The first defendant is the son of the second defendant. The first defendant filed a separate written statement and according to the case of the first defendant, he is a business man and the plaintiff conducts chit business and he joined in one of the chits for Rs.50,000/- in October-1983 and paid instalments and became highest bidder and after deductions he was paid Rs.19,800/-. The plaintiff obtained a pronote from the first defendant for a sum of Rs.40,000/- in spite of his objections. Therefore, the suit pronote is supported only to a consideration of Rs.19,800/-. Subsequently, the first defendant paid two instalments and the first defendant is liable to pay only Rs.14,800/- after deduction of the dividend. The suit pronote was materially altered by forging the signature of the second defendant. The second defendant filed a written statement that she did not execute the pronote and plaintiff has no capacity to lend such huge amount but the signature on the pronote is fabricated one and the pronote might have been fabricated by the first defendant in collusion with the plaintiff as the second defendant was not happy with the conduct of the first defendant. Therefore, finding that the first has no property of his own, her signature might have been fabricated. After framing necessary issues, on behalf of the plaintiff PWs.1 and 2 were examined and marked Exs.A-1 to A-8. On behalf of the defendants DWs.1 to 6 were examined and marked Exs.B-1 to B-23 and Exs.X-1 to X-17. After considering the evidence on record, the lower court has decreed the suit of the plaintiff and aggrieved by the said judgment the present appeal has been filed. Now the point that arises for consideration is:- Whether the second defendant has not executed the suit pronote and she is not liable to pay the suit amount? POINT:- Evidently, the execution of the suit pronote by the first defendant is not denied and on the other hand, his claim goes to show that there is a chit transaction; the suit pronote was executed for a lesser consideration. Evidently, the burden is on the first defendant to prove the same. But, in order to show that the plaintiff was doing any chit business and the first defendant became highest bidder, there is no material on record. There is a presumption that when once the execution of the pronote is admitted or proved, it is supported by consideration. Therefore, in view of the above circumstances, the contention of the fist defendant cannot be accepted and rightly rejected by the lower court. The learned counsel for the appellant contends that after filing of the written statement by the second defendant no rejoinder is filed and the issues are framed on the basis of the pleadings and, therefore, when once the rejoinder is not filed the plea of forgery set up by the second defendant shall be deemed to have been admitted. This argument is baseless since it is only a plea of the second defendant and necessary issue will be framed with regard to liability which has been framed and the filing of the rejoinder is not at all mandatory and, therefore, the non- filing of the rejoinder is of no ground to hold that the contention of the second defendant shall be deemed to have been admitted or proved. According to the counsel for the appellant, by the date of execution of the pronote i.e., 10-12-1983, the second defendant was not at all at Vijayawada and she was said to be at Bhuvaneswar with her daughter who was examined as Dw.4. Reliance is sought to be placed on the evidence of the Doctor and other records. The lower court has after consideration of Exs.B-1 to B-10 and also the evidence of DW.2 on record came to a conclusion that all these documents are fabricated. The lower court has taken notice of the fact that prior to the filing of the suit a legal notice was given, but, the defendants have chosen to give separate notices even though the appellant as DW.1 admitted that the first defendant who is since deceased was under care and protection till he died. Therefore, the inconsistent pleas taken by the defendants is a calculated one to defeat the rights of the plaintiff since evidently the first defendant has no property and the second defendant wants to avoid the liability. This circumstance relied on by the lower court is strong circumstance showing doubt about the veracity version given by the second defendant. In fact, there is no material to show that the first defendant has colluded with the plaintiff to fabricate the document. The evidence of PW.2 clearly goes to show that second defendant also singed the pronote and the money was received. The lower court after perusing O.P. records found that they must have been fabricated in 1987 to suit the contest of the appellant. The entries Exs.X-2 to X-7 in O.P. registers were found to be made at the bottom of the pages without any clear visibility of the writing. It is difficult to believe that all these entries could have been made at the bottom. So also, writing of the letters by DW.5 to a particular address by itself will not prove the same when the postal stamps are not clear. Evidently, on the pronote, the first defendant is said to have signed giving sufficient space for the second defendant to sign, which was found by the lower court. The opinion of the Expert has been rightly rejected as the comparative signatures are not like the disputed signatures. When any comparison of the signature is shown, it should be a signature which is proximate to the date of execution of the disputed document, but, in this case the comparative material does not appear to be proximate. In fact, there is no material to hold that PW.2 was interested in fabricating the document. A plea of alibi of not being present on the date of pronote at Vijayawada is not established and attribution of mala fides to the first defendant in fabricating the document also is unbelievable. Except creating the record to suit the convenience, there is no proof that when she stayed at Vijayawada the appellant has taken any treatment to support her cause either prior to the death of her husband or subsequently. Therefore, for all the above reasons, I do not find any truth in the contention of the appellant and the lower court has rightly decreed the suit of the plaintiff against the appellant and there are no grounds to interfere with the judgment of the lower court and, therefore, the appeal suit is liable to be dismissed. Accordingly, the Appeal Suit is dismissed with costs. _______________________ N.R.L. NĀGESWARA RĀO,J 28-10-2011 TSNR