G. Yadaiah Yadav vs K. Saguna

This appeal is preferred by G.Yadaiah Yadav against the judgment dated 23.01.2006 passed in O.S.No.170 of 1998 on the file of the learned IV

Additional Metropolitan Session Judge, Hyderabad-cum-XVIII Additional Chief Judge, Hyderabad. The appellant herein is the plaintiff.

The appellant-plaintiff filed the above suit against the respondent-defendant seeking for recovery of an amount of Rs.4,16,000/- with interest at the

rate of 16% per annum and on the basis of an equitable mortgage deed created by the defendant by depositing her title deeds on the same day for a

decree of Rs.5,65,760/- along with interest.

The plaintiff was engaged in milk business and the husband of the defendant-K.Gopal is good friend to him. According to the plaintiff, the husband

of the defendant requested him for an amount of Rs.4,25,000/- but he gave an amount of Rs.4,16,000/-. The defendant executed a promissory note

and agreed to pay interest at the rate of 12% per annum for the borrowed amount of Rs.4,16,000/- on 19.04.1995 and she also deposited title deeds on

the same day. But the defendant postponed the repayment of the borrowed amount on one or the other pretext. The plaintiff gave legal notice to the

defendant on 18.03.1998 and filed the suit for recovery of the said amount.

The defendant filed a written statement denying all the averments. She dispute the source of income of the plaintiff to lend such huge amount. She

also stated that she has no necessity to borrow the amount. She admitted that she is the absolute owner of the house in the gift deed and also admitted

execution of gift deed by her father-in-law in her favour. In the additional written statement she stated that plaintiff made her husband to consume

liquor and might have obtained certain document and created some documents which are not valid and binding on her. She also filed Crime No.318 of

1998 for criminal trespass against the plaintiff and also filed W.P.No.24534 of 1999 for police protection.

The plaintiff filed a re-joinder stating that that the defendant was having two daughters and three sons and her husband was engaged in a travel

business. The plaintiff claimed that their elder daughter Aruna’s betrothal took place in April, 1995 and the marriage was settled in May, 1995.

The plaintiff sold eight buffaloes on 05.01.1995 for Rs.1,50,000/- and another eight buffaloes on 10.02.1995 for an amount of Rs.1,50,000/- and

received a total consideration of Rs.3,00,000/- and he filed gram panchayat receipts issued in his favour to prove the same. It is the claim of the

plaintiff that the husband of the defendant came to know about this and approached him for Rs.4,25,000/- on which he agreed to give an amount of

Rs.4,16,000/-. He also stated that he paid Rs.1,16,000/- from savings of milk business.

Before the Court below the plaintiff examined himself as PW-1 and an attestor as PW-2 and also marked Exs.A-1 to A-13. The defendant

examined herself as DW-1 and her son as DW-2 and marked driving licence and RC book of DW-2 as Exs.B-1 and B-2.

The defendant denied her signature and also pointed out the alteration in the date of the promissory note. After considering the evidence on record,

the trial Court dismissed the suit. Aggrieved by the said judgement, the plaintiff preferred this appeal.

The parties hereinafter are referred as in the suit for the sake of convenience.

The plaintiff examined himself and an attestor and filed the promissory note executed by the defendant on 19.04.1995 and also memorandum of

deposit of title deeds made on the same date, along with encumbrance certificate, gift deed, dated 18.10.1994 and sale deed dated 02.06.1975 as

Exs.A-1 to A-5.

The defendant in her evidence deposed that they belong to middle-class family and that they do not go to others for loans as they are well off and

she also stated that plaintiff has no source of income as such. The plaintiff filed the certificate issued by Gram Panchayat and receipt of the Gram

Panchayat as Exs.A-9 and A-10 to show that he sold sixteen buffaloes for an amount of Rs.3,00,000/-.

The appellant would contend that the trial Court failed to appreciate the oral and documentary evidence filed by him and dismissed the suit for

recovery of amount. He also stated that the trial Court without the opinion of handwriting expert, erroneously came to the conclusion in respect of

alteration and denial of execution of the signature on Exs.A-1 and A-2 and misconstrued Section 73 of the Evidence Act. He would further contend

that the trial Court disbelieved the other side evidence and documents and wrongly came to the conclusion that Exs.A-1 and A-2 are fabricated. The

appellant would also contend that the settled law is that a mere deposit of title deeds does not require compulsory registration. Ex.A-2 is a

memorandum of deposit of title deeds, it was marked and admitted in evidence and hence it cannot be questioned at a later stage. The possession of

the document with the plaintiff is only in pursuance of Ex.A-2, for which an equitable mortgage is created. The trail Court relied upon the evidence of

defendant and dismissed the suit, and therefore, the appellant approached this court to set aside the judgement.

Learned counsel for the appellant-plaintiff would contend that it is not a simple suit for recovery of amount basing on promissory note. But the

defendant also executed Ex.A-2 and furnished Exs.A-3 to A-5, original documents pertaining to her. When it was elicited in the cross examination of

DW-1 as to how those documents went into the hands of plaintiff, she simply stated that she gave original documents to one Balaiah on obtaining a

loan of Rs.50,000/- and she does not know how those documents were obtained by the plaintiff. She has not examined Balaiah to substantiate her

version. She has not stated this fact in the written statement, but stated the same during her cross-examination. Moreover, she has not taken any

action against him for handing over the original documents to the plaintiff and thus, the defendant failed to explain how the original documents Exs.A-3

to A-5 went into the hands of the plaintiff without her knowledge.

The said promissory note was executed by defendant K.Sadhuguna on 19.04.1995 and her husband K.Gopal signed as a surety and it was also

attested by her son-PW-2 and one Subhash Rathi.

PW-2 during his evidence clearly deposed that on the request of defendant he went to her house and in his presence and in the presence of

Kishan Yadav, Dasharath-DW-2 the said amount was given by the plaintiff to the defendant. He also confirmed that the promissory note was signed

by the defendant and her husband. PW-2 is the second attestor and DW-2 was the first attestor. He admitted that there is no signature at the place of

date in the receipt and promissory note for correction in the date. He further stated that he again went to the house of defendant and they handed over

certain house documents to the plaintiff. He has not signed on those documents but signed only on the promissory note and receipt. He denied the

suggestion that the signatures of DW-1 and her husband were forged on Exs.A-1 and A-2. The trial Court disbelieved his evidence on the ground that

in chief-examination he stated that the defendant received amount in the house of plaintiff and in the cross-examination he stated that it can be

received in the house of defendant. In fact, amount was given by plaintiff to the defendant in his house at 11.00 am on 19.04.1995. Again on the same

day defendant executed Ex.A2 and handed over Exs.A3 to A5 to the plaintiff in the presence of P.W.2. Admittedly, he went to the house of

defendant twice on that day.

In the cross examination of DW-1, she stated that the betrothal of daughter was in July, 1994 and marriage in was in November, 1994, but she has

not filed the invitation card of the same. It was suggested to her that the marriage was in May, 1995 and Betrothal was in April, 1995, but she denied

the same. She also stated that her husband was working as a commission agent in a transport company. They sustained losses in the transport

business over the last ten years and mortgaged their building with Balaiah for an amount of Rs.50,000/-. She has not filed any bank statement to show

that they were having sufficient money at the time of suit transaction. She also admitted that she has not initiated any action against anyone for forging

her signature. Though she stated that she will examine her husband and son as witnesses, she has not examined her husband and son Anil Kumar. It

was suggested to her that she deliberately withheld their evidence as they had admitted in the criminal case that she borrowed the money.

DW-2-K.Aravind is the son of the defendant. He stated that his father is illiterate and cannot sign. He denied his signature on Exs.A-1 and A-2. It

was suggested to him that he along with his mother altered their signatures after borrowing the amount to get over their liability, but he denied the

same.

The plaintiff also stated that STC.No.1253 of 2000 was registered against him and his son, which was ended in acquittal. He filed the copy of the

judgement under Ex.A-11. He filed the depositions of Anil and Gopal under Exs.A-12 and A-13 and contended that both of them have made

admissions regarding the execution of promissory note in the said depositions.

The trial Court compared the signature of DW-1 on the vakalat, written statement and additional written statement with that of her signature in the

promissory note. In the said documents she signed as K.Sadguna, whereas in the promissory note, she had signed as K.Sadhuguna. Further, it was

stated that there was a material alteration in the date of Ex.A-1 and that letter ‘2’ is altered as ‘1’. The date on the promissory note was

initially mentioned as 20.04.1995 and altered it as 19.04.1995. P.W.1 stated that the date is corrected by the defendant. She did not sign under it after

correction, but the trial Court considered it as a material alteration. Plaint was filed on 17.04.1998, thus it cannot be said that correction was made to

save the limitation.

From a perusal of Ex.A-2, it is revealed that the plaintiff advanced an amount of Rs.4,16,000/- to the defendant and she acknowledged the receipt

of the amount and she also agreed to repay the same with interest at the rate of 12% per annum and she deposited the title deeds pertaining to the

house and the gift deed executed by her father-in-law in her name with the plaintiff. She also executed a promissory note as a collateral security and

executed an agreement of sale in favour of the plaintiff as additional collateral security. The original registered sale deed with plan dated 02.06.1975

executed in favour of K.Bheemaiah and original registered gift deed executed by K.Bheemaiah in favour of K.Sadhuguna on 18.10.1984 and also the

Encumbrance Certificate dated 17.04.1995 for 15 years were shown in Ex.A-2 and they are filed herein as Exs.A-3 to A-5.

Learned counsel for the plaintiff would contend that the defendant failed to explain how the plaintiff got possession of the said documents,

whereas the plaintiff stated that they were deposited by defendant while executing Ex.A-1. She also executed Ex.A-2 on the same day and handed

over Exs.A-3 to A-5 to the plaintiff. The oral evidence of PW-1 and PW-2 along with the documentary evidence of Exs.A-1 to A-5 clearly show that

the plaintiff gave an amount of Rs.4,16,000/- to the defendant and she agreed to return the same with interest at the rate of 12% per annum and

executed Ex.A-1 as a collateral security and A-2 by creating equitable mortgage.

Learned counsel for the defendant argued that Ex.A-2 is an unregistered document and it cannot be looked into. But in the case of UMDE

BHOJRAM V/s. WADLA GANGADHAR 2004(2)ALD339, it was held that if a suit is filed for recovery of money, the unregistered mortgage deed

is admissible in evidence for the collateral purpose of proving the debt. In view of the above judgement, the argument of the defendant counsel cannot

be accepted.

The plaintiff also issued a legal notice, marked as Ex.A-6 on 18.03.1998, in which he specifically mentioned regarding the payment of an amount

of Rs.4,16,000/- and deposit of title deeds on 19.04.1995. He also filed Exs.A-7 and A-8 to show the service of summons. The defendant stated that

she issued reply notice on 10.04.1998 but she has not filed the copy of the same.

The name of the defendant was shown as K.Sadhuguna in Exs.A-3 and A-4. She also signed as Sadhuguna on Ex.A-2. But later, after the filing

of the O.P., she started signing as K.Sadguna wilfully. As such, there is variation in her signature and she cannot take advantage of the same.

The plaintiff filed original documents under Exs.A-1 to A-5 to substantiate his version and also examined PW-2 in support of his contentions. The

plaintiff has established his case through oral and documentary evidence.

The defendant took the plea of forgery. DW-1 and DW-2 stated that their signatures were forged on Exs.A-1 and A-2. When a plea of forgery is

taken, the burden of proof shifts to them and they should refer the documents to the expert to prove their defence of forgery, but they failed to do so.

They simply filed Exs. B-1 and B-2 to compare the signatures of DW-2 and the signature of DW-1 on vakalat, written statement and additional

written statement were compared with that of her signatures in Exs.A-1 and A-2. Of course, plaintiff also mentioned the name of defendant as

K.Sadguna in the suit, instead of K.Sadhuguna. He has not amended the same during the pendency of proceedings. Even during the cross

examination, DW-1 denied her signatures on additional written statement, written statement, vakalat, affidavit and Ex.A1 and later, she admitted her

signatures on vakalat and affidavits and denied her signature on Ex.A2. She gave evasive answers during the cross examination.

The trial Court failed to appreciate the evidence on record properly. The trial Court erred in dispensing with the defendant’s burden of proof

with regard to forgery of their signatures, by merely noting the defendant’s contention that her husband is addicted to liquor and hence his

signature was obtained on the documents under influence. The trial Court also erred in holding that the Ex.A-2 ought to have been registered, and thus

the judgement is liable to be set aside.

In the result, the appeal is allowed, setting aside the judgement dated 23.01.2006 in O.S. No.170 of 1998 on the file of the learned IV Additional

Metropolitan Session Judge, Hyderabad-cum-XVIII Additional Chief Judge, Hyderabad. The plaintiff is entitled for recovery of an amount of

Rs.4,16,000/- with interest at the rate of 12% per annum from the date of the suit till the date of decree and the interest at the rate of 6% from the

date of decree till the date of realisation.

Miscellaneous petitions, if any, pending in this appeal shall stand closed in the light of this final order.