S. Nagamuthu, J.@mdashThe Defendant in O.S. No. 379 of 1990 on the file of the learned District Munsif, Tirukoilur, is the Appellant. The Plaintiff is the 1st Respondent and the 2nd Defendant is the 2nd Respondent. The Plaintiff filed the said suit for recovery of a sum of Rs. 6,000/- with interest @ 12% p.a. due under a promissory noted dated 09.03.1988. By decree and judgment dated 24.12.1983, the learned District Musnif dismissed the suit. As against the same, the Plaintiff preferred an appeal in A.S. No. 66 of 1994. By decree and judgment dated 29.03.1996, the learned Principal District Judge, Villupuram, allowed the appeal, set aside the decree and judgment of the trial court and decreed the suit as prayed for. As against the same, the 1st Defendant is, now, before this Court with this second appeal.
2. The case of the Plaintiff in brief is as follows:On 09.03.1988, the husband of the 1st Defendant by name Karunakaran borrowed a sum of Rs. 6,000/- from the Plaintiff and executed a promissory note thereby promising to repay the same on demand with interest at 12% p.a. Subsequently, Karunakaran passed away leaving behind the 1st Defendant to succeed to his estates. The 1st Defendant has inherited the properties of the deceased Karunakaran. Thereafter, a demand was made by the Plaintiff to the 1st Defendant for the repayment of money due under the promissory note. The 1st Defendant failed to repay the amount. Therefore, the Plaintiff filed the present suit for recovery of money.
3. The 2nd Defendant remained ex parte
4. The 1st Defendant filed a written statement wherein, he disputed the very borrowal of the amount by her husband Karunakaran and the execution of the promissory note. According to her, the mother in law of the 1st Defendant by name Mrs. Nagarathinammal declined to give share in the property in favour of the 1st Defendant. This has resulted in suit in O.S. No. 1001 of 1989. The Plaintiff is the sister''s son of Mrs. Nagarathinammal. It is because of the said enmity, the promissory note has been manufactured falsely to make the claim. Therefore, according to her, the suit is not sustainable and the same is, therefore, liable to be dismissed.
5. Based on the above pleadings, the trial court framed appropriate issues. During trial, on the side of the Plaintiff, 4 witnesses including the Plaintiff were examined as P. Ws.1 to 4 and 3 documents were exhibited as Exs.A.1 to A.3. On the side of the Defendants, 2 witnesses were examined as D. Ws.1 and 2 and 4 documents were marked as Exs.B.1 to B.4. Having considered the above materials, the trial court dismissed the suit. As against the same, the Plaintiff preferred an appeal in A.S. No. 66 of 1994 before the learned Principal District Judge, Villupuram. Pending enquiry, on the side of the Plaintiff,an additional documentary evidence was sought to be exhibited. The learned Principal District Judge accepted the request made by the Plaintiff and allowed the document namely, pass book, to be exhibited as additional documentary evidence under Ex.A.4. Having considered the available records, by judgment and decree dated 29.03.1996, the learned Principal District Judge allowed the appeal, set aside the decree and judgment of the trial court and decreed the suit as prayed for. That is how, the 1st Defendant is, now, before this Court with this second appeal.
6. When the second appeal was admitted, this Court framed the following substantial questions of law:
(1) Whether the order of the lower appellate court in holding that the deceased Karunakaran had executed the said pronote is not based on any evidence on record and whether it should not have applied the principle governing the burden of proof of passing of consideration after the death of the deceased promissor is on the promisee and whether the lower appellate court should not have applied the principles laid down in 1937 (1) M.L.J. 543 [Varadhachari and Mockett JJ] properly and correctly?
(2) Whether the lower appellate court ought not to have held the suit transaction is fraudulent, especially when the Class I heirs are not made party to the proceedings and on the circumstances of the case the partition action filed by the Appellant is pending against the mother of the deceased?
7. I have heard the Learned Counsel on either side and also perused the records carefully.
8. Admittedly, the suit promissory note was not executed by the 1st Defendant. It is alleged that it was executed only by the husband of the 1st Defendant. After a few days of execution of the suit promissory note, it is alleged that Karunakaran died. When the execution of the very promissory note and the borrowal of the money under the same is disputed, the burden is heavily upon the Plaintiff alone to prove that the deceased Karunakaran borrowed the money for which he executed the promissory note. According to the Learned Counsel for the appellant, the first appellate court has instead imposed the burden on the 1st Defendant to disprove the execution of the promissory note. The Learned Counsel in this regard relies on a judgment of this Court in
9. As rightly pointed out by the Learned Counsel for the Appellant, during cross examination, regarding the source of money for lending the same to the deceased Karunakaran, the Plaintiff has stated that he had money in his account in the bank and one day prior to the execution of the promissory note, he withdrew from the bank and accordingly, he paid the same to the deceased Karunakaran at the time when the promissory note was executed. The trial court disbelieved this version and accordingly dismissed the suit. However, during the pendency of the appeal suit, the Plaintiff has produced a bank pass-book and the same has been exhibited as Ex.A.4. This document has been produced by the Plaintiff with a view to prove that the money was withdrawn by him one day prior to the execution of promissory note and the same was paid on the date of execution of the promissory note by him to the deceased Karunakaran. The first appellate court on perusal of the same has held that a sum of Rs. 4,000/- had been withdrawn from the bank just a few days prior to the date of execution of the promissory note and the Plaintiff would have paid the balance of money from his pocket. This conclusion arrived at by the first appellate court, in my considered opinion, is perverse. A perusal of Ex.A.4 would go to show that one day prior to the execution of the promissory note, that was on 08.03.1988, no amount was withdrawn from the bank. The bank pass-book further shows that on 03.03.1988, a sum of Rs. 4,000/- was withdrawn and the balance of amount lying in the account was only a sum of Rs. 68.25 paise. Thus, as per the bank pass-book, as on 08.03.1988, there was a paltry amount of Rs. 68.25 paise in the bank account of the Plaintiff. Thus, the contention of the Plaintiff that he withdrew Rs. 6,000/- on 08.03.1988 from his account and he paid the same on 09.03.1988 cannot be true at all. This vital aspect has not been explained away by the Plaintiff. Thus, the Plaintiff has failed to discharge his burden of proving that he had enough money to lend to the deceased Karunakaran as on 08.03.1988 and that he paid the same on 09.03.1988 and further the suit promissory note was executed by the deceased Karunakaran for the said purpose. Thus, I have got no hesitation to hold that the judgment of the first appellate court is perverse inasmuch as the first appellate court has imposed the burden to disprove the execution of the promissory note on the 1st Defendant instead of throwing the burden at the hands of the Plaintiff to prove the lending of money and execution of the suit promissory note. If the established legal principle regarding the burden of proof is applied, it is crystal clear that the Plaintiff has failed to prove that the deceased Karunakaran borrowed Rs. 6,000/- and executed the promissory note. In such view of the matter, the decree and judgment of the first appellate court cannot be allowed to sustain. Accordingly, I answer both the substantial questions of law in favour of the Appellant/1st Defendant and thus the second appeal must succeed.
10. In the result, the second appeal is allowed, the decree and judgment of the first appellate court is set aside and that of the trial court in O.S. No. 379 of 1990 dismissing the suit is restored. Considering the facts and circumstances, there shall be no order as to costs.
