Mrs. Pappa vs Mrs. Rengammal

Honourable Mr. Justice M. Venugopal

The Appellant/Defendant has filed the present Second Appeal as against the Judgment and Decree dated 3/4/2006 in A.S. No. 4 of 2006

passed by the learned Subordinate Judge, Kovilpatti.

Plaint Averments:- According to the Respondent/Plaintiff, the Appellant/Defendant''s husband (since deceased) has received a sum of

Rs.40,000/- as loan on 27/11/2000 and executed a pronote, in his favour, agreeing to repay the said amount with interest at 12% p.a. The

Appellant''s husband (during his life time) has not paid any amount either towards principal or towards interest. The Appellant/Defendant''s

husband (deceased Shanmugaiah) has left the Appellant/Defendant as his heir consequent upon his death on 12/3/2002. The Appellant/Defendant

has been in enjoyment of the properties of her deceased husband and also the amount to be received by her. Therefore, the Appellant/Defendant

in law is liable to pay the loan taken by her husband and in the interest of justice.

The Respondent/Plaintiff on 1/7/2002 has issued a legal notice to the Appellant/Defendant claiming the principal amount as well as the interest.

The Appellant/Defendant received the notice sent by the Respondent/Plaintiff on 3/7/2002 but towards the loan transaction till date, no amount has

been by the Appellant/Defendant. Further, she has not sent any reply to the notice issued by the Respondent/Plaintiff.

Hence, the Respondent/Plaintiff has filed a suit before, the trial Court praying for the recovery of a sum of Rs.48,415/- along with interest and

with costs from the Appellant/Defendant.

The Appellant/Defendant''s Written Statement Pleas:-

The Respondent/Plaintiff is not entitled to claim any relief in the suit. The Appellant/Defendant does not know the Respondent/Plaintiff. The

Appellant/Defendant''s husband has not received any loan amount either on 27/11/2000 or on any other date and has not executed the pronote.

The Respondent/Plaintiff''s husband Rajanarayanan served as a principal of G.V.N. college at Kovilpatti. The Appellant/Defendant''s husband

(since deceased) worked as a Office Assistant in the said College. At that time, due to differences of opinion, frequent quarrels has arisen between

her husband and the plaintiff''s husband (which fact she comes to know recently).

Because of the said enmity, the suit pronote has been created by the Respondent/Plaintiff fraudulently by forging the signature of her husband,

(which fact also she comes to know only recently).

In the notice sent by the Respondent/Plaintiff, she has not issued a reply because of her husband''s bereavement. It is incorrect to state that the

Appellant/Defendant has been in enjoyment of her husband''s property. She is not in possession of any property in her hands. She is not liable to

pay the amount mentioned by the Respondent/Plaintiff. As such, the suit is liable to be dismissed.

Before the trial Court in the main suit, 1 to 4 issues have been framed for adjudication. On the side of the Respondent/Plaintiff witnesses,

P.Ws.1 and 2 have been examined and documents Exs.A.1 to A.3 have been marked. On the side of the Appellant/Defendant witness D.W.1 has

been examined and no exhibits were marked.

The trial Court, on appreciation of oral and documentary evidence available on record, has held that the Respondent/Plaintiff has not established

that the Appellant/Defendant has received the loan and further, the signature of the Appellant/Defendant in Ex.A.1 pronote has not also been

established and also all the legal heirs of the Appellant/Defendant''s deceased have not been added as parties in the suit and resultantly, held that

the Respondent/Plaintiff is not entitled to claim the relief as prayed for in the plaint and dismissed the suit with costs.

Feeling aggrieved against the Judgment and Decree of the trial court in O.S. No. 191 of 2004 dated 3/6/2005, the Respondent/Plaintiff as an

aggrieved person has preferred A.S. No. 4 of 2006 on the file of the First Appellate Court viz., Principal Sub-Judge, Kovilpatti.

The First Appellate Court viz., Principal Sub-Judge, Kovilpatti, has allowed the appeal in A.S. No. 4 of 2006 by setting aside the judgment

and decree of the trial Court dated 3/6/2005 in O.S. No. 191 of 2004 and granted the reliefs prayed for by the Respondent/Plaintiff.

Being dissatisfied with the judgment and decree dated 3/4/2006 in A.S. No. 4 of 2006 passed by the First Appellate Court viz., The Principal

Sub-Judge, Kovilpatti the Appellant/Defendant as an aggrieved person has projected the Second Appeal before this Court.

At the time of admission of the Second Appeal, the following substantial questions of law were framed by this Court.

(a). Whether a plaintiff can succeed when the attester of promissory note deposed that he did not see the execution of promissory note?

(b). Whether a plaintiff can get a decree for money on the basis of promissory note executed by a deceased person without adding all his legal

heirs?

(c). Whether the lower appellate Court is correct in not framing the points for determination as contemplated under Order 41 Rule 31 of C.P.C as

the same is mandatory?

The Contentions, Discussions and Finding on Points ''a'' and ''b'':- The Learned counsel appearing for the Appellant/Defendant urges before

this Court that the First Appellate Court has hot appreciated the evidence of P.W.2 in a proper and real perspective, which has resulted in serious

miscarriage of justice.

It is the further contention of the learned counsel for the Appellant/Defendant that the specific evidence of P.W.2 is that he has gone to the

Respondent/Plaintiff''s house, after the Appellant/Defendant''s husband Shanmugaiah (since deceased) left the house of the Respondent/Plaintiff

and therefore, she has not known the execution of the alleged pronote.

The Learned counsel for the Appellant/Defendant cites a decision of this Court in Central Bank of India (A Nationalised Bank), Rep. by Its

Manager, N.Gururajan, No. 1, Alaiamman Kovil Street, Teynampet, Chennai 600 018. Vs. Antony Hardware Mart, REP. BY ITS Proprietor,

K.Subbiah, No. 113 Eldams Road, Teynampet, Chennai 600 018 and Another reported in 2006 3 CTC 39 wherein, it is observed that

If the defendant denies his signature in guarantee deed, the burden is not cast on the defendant but on plaintiff to establish his case and that the trial

Court erred in observing that defendant ought to have summoned admitted signature from Bank and prove that it was not his signature.

He also relies on the decision of this Court in Sundaramoorthy Vs. R. Palanisamy reported in 2009 (1) CTC 728, wherein it is held that

In a suit for recovery of money on pronote, it is for the plaintiff to establish his case and that the defendant need not take steps to disprove the

plaintiff''s case.

The Learned counsel for the Appellant/Defendant seeks in aid of the decision reported in Keshav Nandan Sahay and Others Vs. The Bank of

Behar, , wherein it is held that

In a suit for realisation of debt decreed and when pending execution cases, father died, then the remedy of the decree holder as against ancestral

property in the hands of sons lies in impleading them in execution cases and not by way of separate suit.

The Learned counsel appearing for the Appellant/Defendant invites the attention of this Court to the decision in Modi Nathubhai Motilal and

Others Vs. Chhotubhai Manibhai Desai, , at page 76, wherein it is inter alia observed as follows :-

A particular member of the family may agree to take the liability even if no such additional property is allotted to him over and above his legitimate

share. Their Lordships of the supreme Court have also observed in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others,

that It is settled law that even after partition the sons could be made liable for the pre-partition debts of the father if there was no proper

arrangement for the payment of such debts at the time when the partition was effected, although the father could have no longer any right of

alienation in regard to separated shares of the sons.

Their Lordships were, of course, dealing with the liability of the sons. As already observed, the strict principle of picus obligation does not apply to

the wife but the liability would be on the wife indirectly if at the time of the partition she has been allotted a share not in the property available for

partition, but in the property which was not available for partition.

Apart from the above, the Learned counsel for the Appellant /Defendant cites the following decisions.

a. in Laxmidhar Sahu Vs. Smt. Padmini Tripathy and Others, , wherein it is observed as follows:-

Hindu widow being a statutory heir only, cannot be made personally liable for the liabilities of her husband. In case, the decree has made her

personally liable allowing it to become final, she can make a grievance in the executing Court that she is not personally liable. If the decree has

made her personally liable and she has challenged the same in appeal, appellate Court will set aside that portion of the decree. Where the decree

did not specifically make the Hindu widow personally liable and she had not assailed the same, there was no bar for her to contest in the execution

proceeding to the extent that she could not be personally liable since the decree had not made her so liable and attachment of her personal

property could not be ordered.

b. In Sudhamani Dei Vs. Sadananda Mohanty and Another, , it is held that

the terra ''other descendant'' in Section 53 of the CPC does not include widow and in decree against the deceased husband in execution the share

received by the widow is immune.

c. In Govindammal and Another Vs. Bhuvaneswari Financing Corporation reported in AIR 2002 Mad 296, it is observed that

In a suit for recovery of amount filed against legal heirs of borrower, on basis of pronote, there is nothing to show that said heirs though related to

maker, have inherited his estate, so as to become liable to repay the debts and as such suit is not maintainable.

In response, the Learned counsel for the Respondent/Plaintiff submits that the First Appellate Court, has scrutinised the entire gamete on the

evidence of the witnesses P.Ws.1 and 2 and D.W.1 On record and also looked into the documents and has come to a fair and just conclusion that

the Respondent/Plaintiff has established that the Appellant/Defendant''s husband (deceased) has received the loan amount on the basis of pronote

executed by him and the principal and interest have not been paid and ultimately it found that the Appellant/Defendant''s husband has executed

Ex.A.1 pronote and consequently allowed the appeal by setting aside the judgment and decree of the trial Court.

Inasmuch as the Appellant/Defendant''s husband, after the execution of Ex.A.1 pronote dated 27/11/2000 has expired on 12/3/2002 and on

13/9/2002, the suit has been laid by the Respondent/Plaintiff before the trial Court, it is just and necessary for this Court to refer to the evidence of

P.Ws.1 and 2 and D.W.1 in detail, for fuller and better appreciation of the case.

It is the evidence of P.W.1 (plaintiff) that the Appellant/Defendant''s husband has taken a loan from her for the purpose of meeting out sundry

debts and family expenses and executed Ex.A.1 pronote for which he has agreed to pay Rs.1% interest for Rs.100/- and that the

Appellant/Defendant''s husband has expired and during his life time, the Appellant/Defendant has not paid either the principal or the interest.

The further evidence of P.W.1 is to the effect that since no interest has been paid Ex.A.2 legal notice has been issued by him to the

Appellant/Defendant which has been received by the Appellant/Defendant as seen from Ex.A.3 and even after receipt of Ex.A.2

Respondent/Plaintiff''s lawyer notice, the Appellant/Defendant has not chosen to pay the principal and the interest amount.

Added further. P.W.1 has denied the motive attributed on the side of the Appellant/Defendant that because of opinion differences between her

husband and that of the Appellant/Defendant''s husband, the suit has been filed and out of enmity, the signature of the Appellant/Defendant has

been fraudulently created and the present suit has been filed. Moreover, P.W.1 has also deposed that since the Appellant/Defendant, after the

death of her husband, is enjoying the properties, the Appellant/Defendant is entitled to pay the suit amount.

The evidence of P.W.1 goes on to proceed to the effect that he has paid a sum of Rs.40,000/- which he has been in possession of the same at

his house and-there has been no necessity to take the amount from the Bank and in the presence of his two relatives, he has paid the amount to the

Appellant/Defendant''s husband Shanmugaiah (later deceased) and at that time, Subbiah, Sengottai, Ramasamy of Venkatesh Nagar have been

present, who have signed in the pronote and that witnesses have not been brought by the Appellant/Defendant''s husband. Also, it is the evidence

of P.W.1 that Ex.A.1 pronote has been written by a scribe viz., Meenakshi Sundaram, who has been brought by him and that he has paid four

bundles of hundred rupees notes to the Appellant/Defendant''s husband Shanmugaiah and these four bundles of money have been kept by her in

his house and that the pronote has been written in the verandah of her house in which the Appellant/Defendant''s husband has signed and that the

pronote has been handed over to her by the Appellant/Defendant''s husband Shanmugaiah. After the said Shanmugaiah affixing his signature in the

pronote, the witnesses have signed and handed over Ex.A.1 pronote dated 27/11/2000 and at the time of herself paying the money to

Shanmugaiah apart from herself and witnesses, no one has been present and she has also informed the loan detail to her husband and that the

witnesses have signed in her house by using a pen and that the witnesses have signed in blue colour ink and that the witness Subbiah has retired as

Office Assistant from G.V.N. College and the second witness Subbiah used to come to her house quite often and the said Subbiah has also money

dealings with her and that her husband was retired from G.V.N. College.

P.W.1 in her evidence has categorically admitted that details in Ex.A.1 pronote have been written in black ink.

P.W.2 (second witness in Ex.A.1 pronote) in his evidence has stated that the Respondent/Plaintiff has paid a sum of Rs.40.000/- to the

Appellant/Defendant''s husband Shanmugaiah, in his presence, but he does not know the year and date but the same has been before four or five

years and that from the Appellant/Defendant''s husband, the written document has been taken in which he has signed as the second witness.

P.W.2 in his cross-examination has stated that at the time when the Appellant/Defendant''s husband receiving the loan, he has been present.

But he does not know the date and further he does not know who has written the pronote and on what date, the pronote has been written but the

same has been written in the Respondent/Plaintiff''s house and he does not know, who has brought Ex.A.1 pronote and the Respondent/Plaintiff

has been in possession of Ex.A.1 pronote and also the revenue stamp for Ex.A.1 pronote has been purchased and at the time of execution of

Ex.A.1 pronote he has been present and he has signed in the draft and remained in the house of the Respondent/Plaintiff and only the

Appellant/Defendant''s husband has left the house of the Respondent/Plaintiff.

D.W.1 (Appellant/Defendant''s husband) in her evidence as stated that the Respondent/Plaintiff has not come to her and demanded the amount

and even during her husband''s lifetime the Respondent/Plaintiff has not demanded the amount and further, it is not true to state that her husband

has received a sum of Rs.40,000/- as loan from the Respondent/Plaintiff and since her husband is not alive, she has not sent a reply to the suit

notice issued by the Respondent/Plaintiff and she does not know the witnesses of Ex.A.1 pronote Subbiah and Madasamy and that she is not liable

to pay any amount to the Appellant/Defendant and also that it is wrong to state that she is in enjoyment of her husband''s properties.

D.W.1 in her cross-examination has candidly stated that her husband died suddenly while in service and she has received his death benefits

and that she has three daughters and one son and she used to do coolie work in a week for Rs.50/-.

The learned counsel appearing for the Respondent/Plaintiff submits that the term ""attestation"" proves no more than the signature of an executing

party being attached to a document in presence of such witness under the Indian Evidence Act, 1872 and it does not involve knowledge of witness

to the contents of deed and in support of the same, relies on the decision of this court reported in 2008 (5) CTC 219 {Chidambara Padayachi Vs.

Vellaiya Padayachi and 7 Others (Minors Represented by Mother and Guardian Poongavanam Ammal).

He also cites the decision of this Court in Govindammal and Another Vs. Bhuvaneswari Financing Corporation, , wherein at page 298 in

paragraph Nos.11, it is held as follows:-

It is hereby made clear that even if the plaintiff had proved that the defendants were related to the late Ethirajulu Naidu so as to become the heirs

of the deceased, it would not be sufficient unless they were able to further prove that the said Ethirajulu Naidu left a valuable estate and that estate

has been inherited by these defendants and that estate was worth the money that is sought to be recovered and only in proof of all these aspects,

the next step of lodging the claim against these appellants/defendants would be arrived at since the plaintiff has miserably failed to prove this vital

aspect which is quite legal and prerequisite condition, the other question of the borrowing of Ethirajulu Naidu is quite irrelevant to the issue with

which the defendants have absolutely no nexus or bearing.

According to the Respondent/Plaintiff in the present case on hand, the Appellant/Defendant as D.W.1 before the trial Court, in her evidence

has admitted that she has received her husband''s death benefits and therefore, the suit filed by the Respondent/Plaintiff Is perfectly maintainable in

the eye of law.

A perusal of Ex.A.1 pronote dated 27/11/2000 shows that it has been executed in favour of the Respondent/Plaintiff by the

Appellant/Defendant''s husband Shanmugaiah as seen from the recitals made in the document by using black colour ink. In Ex.A.1 pronote dated

27/11/2000 over the revenue stamp, there is a signature of S. Shanmugaiah is seen. The said Shanmugaiah is said to be the Appellant/Defendant''s

deceased husband. In Ex.A.1 pronote N. Subbiah and M. Ramasamy has signed as witnesses. Out of two witnesses in Ex.A.1 pronote, the

second witness M. Ramasamy has been examined before the trial Court. However, M. Meenakshi Sundaram, scribe who has written Ex.A.1

pronote dated 27/11/2000 has not been examined.

It cannot be again said that Section 118 of the Negotiable Instruments Act speaks of presumption as to negotiable instruments. As a matter of

fact, Section 118 of the Negotiable Instruments Act, less down certain presumption to be attached to negotiable instrument until the contrary is

established. Before these presumptions can be drawn, the execution of the pronote ought to be admitted or proved. There is no presumption about

the execution of a negotiable instrument and if the execution of pronote is denied by the other side, the party resting its claim on such instrument is

to prove its execution in the manner known to law.

Once the execution of pronote is admitted, the presumption u/s 118 (A) of Negotiable Instruments Act arises. But that presumption is a

rebuttable one either by means of a circumstantial evidence or by presumption of fact drawn as per Section 114 of the Indian Evidence Act.

Section 114 of the Indian Evidence Act gives a Court of Law a discretion to presume existence of certain facts. Any presumption as to

quantum of consideration as distinguished from the mere existence on consideration has to be drawn, not by means of Section 118 of the

Negotiable Instruments Act or even u/s 114 of the Negotiable Instruments Act but only from the recitals, it has not been established that being

prima facie evidence as against the parties to the evidence, they may operate to shift on to the party, plead the contrary, burden of rebutting the

inference raised by them. The consideration is a valuable consideration and the presumption in law is that the Negotiable Instrument has been made

for a consideration. The burden of proof on failure of consideration is on the maker of the note or the endorser as the case may be.

It is to be borne in mind that the burden of proof has two connotations:-

(i). The burden of proof as a matter of law and pleading.

(ii). the burden of establishing their case.

The former is fixed as a question of law on the basis of pleadings and it is unchanged during the entire trial whereas the latter is not constant but

shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not

necessarily be a direct evidence by means of oral and documentary evidence or admissions made by the opposite party. It may even consistent on

circumstantial evidence or presumption of law or fact. As soon as the execution is established or proved Section 118 of the Negotiable Instruments

Act imposes a duty on the Court to raise a presumption in his favour that the said instrument is made for consideration. As per Section 118(a) of

the Negotiable Instrument Act, every negotiable instrument is made for consideration.

Whether a statutory presumption is rebutted by means of the rest of evidence is undoubtedly a question of fact. As per Section 118 of

Negotiable Instruments Act, presumption is not left to the discretion of the Court. In every suit on Negotiable Instruments, the Court shall presume

that such instruments were made, drawn, accepted or negotiated for consideration.

It is incumbent on the Appellant/Defendant who decides to issue the Respondent/Plaintiff''s entitlement to recover the money on the basis of

want of consideration, to allege and prove the same. In the instant case on hand, the Appellant/Defendant admittedly is the wife of her deceased

husband Shanmugaiah. The Appellant/Defendant indeed has not executed A.1 pronote dated 27/11/2000 only her husband Shanmugaiah (during

his lifetime) has executed the pronote, according to the version projected by the Respondent/Plaintiff.

The Respondent/Plaintiff as P.W.1 has clearly stated in her evidence that the Appellant/Defendant''s husband Shanmugaiah has received a loan

amount of Rs.40,000/- and executed Ex.A.1 the suit pronote. The second witness to Ex.A.1 pronote mere M. Ramasamy has been examined as

P.W.2. In his evidence, he has clearly stated that the Respondent /Plaintiff has paid Rs.40,000/- to the Appellant/Defendant Shanmugaiah when he

has been present in the house of the Respondent/Plaintiff. At this juncture, the learned counsel for the Appellant/Defendant submits that it is the

admission of P.W.2 that he has not seen the Appellant/Defendant''s husband Shanmugaiah signing in Ex.A.1 pronote and therefore, his evidence is

not helping the case of the Respondent/Plaintiff. Further, the learned counsel for the Appellant/Defendant submits that P.W.2 in his evidence has

specifically stated that he has seen shanmugaiah putting his signature with a pen. At this juncture, it is to be pointed out that P.W.2 has stated in his

evidence that he does not know in whose pen shanmugaiah has signed and that he has seen the affixure of stamp and further, he does not know

about the talk pertaining to the interest.

Indeed, P.W.2 is also a person who has taken loan from the Respondent/Plaintiff for urgent educational expenses of his son and further, he has

seen Shanmugaiah (Appellant/Defendant''s husband) on numerous occasions in Respondent/Plaintiff''s house. Although P.W.2 in his evidence has

not stated specifically that he has seen Shanmugaiah affixing his signature in Ex.A.1 pronote, he has stated that Ex.A.1 pronote has been written in

the Respondent/Plaintiff''s house and at the time of writing of Ex.A.1 pronote, he has been present and after affixing his signature, he'' has remained

in the house of the Respondent/Plaintiff and only after Shanmugaiah leaving the Respondent/Plaintiff''s house, he has left the house of the

Respondent/Plaintiff.

Admittedly, even though P.W.2 in his evidence has not categorically stated that he has seen Shanmugaiah affixing his signature in Ex.A.1

pronote dated 2.7/11/2000 yet if the evidence of P.W.1 satisfies the consciousness of this Court in regard to the execution of A.1 pronote, there is

no impediment in law for this Court to come to the conclusion that Ex.A.1 pronote dated 27/11/2000 has been executed/written by the

Appellant/Defendant''s husband.

The Respondent/Plaintiff as P.W.1 has stated that she has paid a sum of Rs.40,000/- to the Appellant/Defendant''s husband Shanmugaiah and

the said amount has been paid in four bundles of hundred rupees notes which she has kept in her house. At this stage, the Learned counsel for the

Appellant/Defendant submits that the admitted signature of Shanmugaiah has not been proved before this Court and therefore, this Court is to hold

that the signature of Shanmugaiah in Ex.A.1 has remained unproved. It is true that in a civil case, onus is on the plaintiff to prove the case to the hilt.

The Respondent/Plaintiff in the present case, cannot take advantage of the weakness of the defence of the Appellant/Defendant. D.W.1

(Appellant/Defendant) in the written statement has stated that the Appellant/Defendant signature has been forged by the Respondent/Plaintiff and

Ex.A.1 pronote dated 27/11/2000 has come into existence in that fashion. '' A perusal of evidence of D.W.1 (Appellant/Defendant) shows that

she has not taken any specific plea that the signature found in Ex.A.1 over the revenue stamp is not that of her husband.

The ordinary rule is that the burden is upon the individual making the affirmative allegation. The onus of proof lies on a person to prove a fact

as per decision Perwira Affin Bank Bhd Vs. Lorain Esme Osman (1996) 4 MLJ 656 (Kuala Lumpur High Court). The burden of proof is vital

where the evidence is evenly balanced and conflicting as opined by this Court. A subtle difference between ''burden of proof and ''onus of proof is

that the ''burden of proof never shifts, but the ''onus of proof shifts. Such a shifting of onus is a continuous process in evaluation of the evidence.

The evidence required to shift the burden need not necessarily be a direct evidence i.e., oral or documentary evidence or documents of other

side. It may include circumstancial evidence or presumptions of law or fact as per decision Kandan Vs. Custodian AND C (AIR 1961 SC 1316).

Further Lord Hanworth MR has succinctly stated about the test of onus in the case of shifting and thus,

It appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to

establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on the one side or the other, and of saying

that if there were two feathers on one side and one on the other that would be sufficient to shift the onus. What is meant is, that in the first instance

the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence."" {Stoney V.

Eastbourne R D Council, (1927) 1 Ch 367, 397}. This test was applied in Nirmal V. Sant, 16 P 622: A 1937 P 562.

The burden of proof as per Section 101 of the Indian Evidence Act is not always static. It shifts from one particular stage to another. If the

Respondent/Plaintiff is able to show prima facie that the defendant has executed the pronote in his favour, then the defendant can plead that the

said pronote suffers from want of consideration etc. These defences can be taken by means of a rebuttal presumption. Even eschewing the

evidence of P.W.2 that he has not stated in his evidence that he has not seen the Appellant/Defendant''s husband affixing his signature in the

pronote, yet the evidence of P.W.1 in the instant case is cogent, convincing and coherent one to the effect that she has lent money of Rs.40,000/-

which she has been in possession in her house and that the Appellant/Defendant''s husband after receiving four bundles of hundred rupees, has

executed the said document for a valid consideration. In short, the evidence of P.W.1 to the effect that the Appellant/Defendant had executed

Ex.A.1 pronote dated 27/11/2000 is worthy of credence and the same is accepted by this court. As such the plea that P.W.2 witness of Ex.A.1

pronote has deposed that he has not seen the execution of pronote by the Appellant/Defendant''s husband in precise term will not in any way

destroy or affect the case of the Respondent/Plaintiff. In the light of an overall conspectus of the whole case and on assessment of the facts and

circumstances of the case as detailed aforesaid in an integral manner, this Court unhesitatingly holds that Ex.A.1 pronote dated 27/11/2000 has

been executed by the Appellant/Defendant''s husband in favour of the Respondent/Plaintiff for a sum of Rs.40,000/-and that in the instant case/ the

Respondent/Plaintiff has paid a sum of Rs.40,000/- to the Appellant/Defendant''s husband and that the Appellant/Defendant has received the

consideration for the pronote and the point is answered in favour of the Respondent/Plaintiff accordingly.

It is not in dispute that the Appellant/Defendant has three daughters and one son. Further, she has performed the marriage of two daughters

and that her son is residing in the house given by her father and that her son has got married since D.W.1 in her evidence has specifically admitted

that after the death of her husband Shanmugaiah, she has received his death benefits even without impleading all other heirs suit can be laid by the

Respondent/Plaintiff against the Appellant/Defendant and such a suit filed even without impleading the three daughters and one son of the deceased

Shanmugaiah is perfectly valid in law and the Respondent/Plaintiff can file a suit for recovery of money on the basis of Ex.A.1 pronote after the

death of her husband of the Appellant/Defendant and accordingly, the point is so answered.

The Contentions, Discussions on Point ''C'':-The Learned counsel appearing for the Appellant/Defendant submits that the First Appellate Court

has framed a omnibus point for consideration viz., whether the appeal suit is to be allowed and this kind of point framed by the First Appellate

Court is not in accordance with the ingredients of Order 41 Rule 31 of the code of Civil Procedure.

It is useful to refer to order 41 Rule 31 of the Code of civil Procedure, which runs as follows :-

Contents, date and signature of judgment:- The judgment of the Appellate Court shall be in writing and shall state -

(a). the points for determination

(b). the decision thereon

(c). the reasons for the decision and

(d). where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be

signed and dated by the Judge or by the Judges concurring therein.

A reading of Order 41 Rule 31 of the CPC unerringly points out that the points for determination will have to be framed by a Court of Law. It

is the primordial duty of a court of Law especially the First Appellate Court to frame the necessary points for determination to state the decision

thereon and the reasons in the decision. The power of the Appellate court as per order 41 Rule 32 and Rule 33 are co-exclusive with the powers

of the trial Court, as opined by this Court. A Appellate Court should interfere with the judgment under appeal not because it is not right but when it

is shown to be wrong. Further more, a Appellate Court''s judgment must contain decision on each point arising for consideration before it. A

judgment of reversal must express opinion on all points on which the lower Court rested its conclusion. A judgment reversal must come into close

quarter with the judgment appealed. In the judgment/order of reversal, the Appellate Court is required to refer to all the evidence receiving better

treatment by the trial Court. If the First Appellate Court reverses the trial Court''s judgment without framing the necessary points for determination

and recording the findings and reasons, then it is a clear case of violation of Order 41 Rule 31 of the Code of Civil Procedure, in the considered

opinion of this Court.

In the present case though the First Appellate Court has discussed about the documents and evidence of witnesses yet it has not framed the

necessary points for determination except the framing on an omnibus prayer whether the appeal is to be allowed, which is not a desirable and

palatable one and the same is a palpable omission.

Even though the First Appellate Court in judgment in A.S. No. 4 of 2006 has not framed the necessary points for determination as envisages

as per Order 41 Rule 31 of the Code of Civil Procedure, yet there is no fetter on this Court to deal with the merits of the matter of the case to

prevent an aberration of justice and viewed in this perspective, this Court answers the substantial questions of law accordingly.

In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Resultantly, the judgment of the First Appellate Court

is affirmed by this Court for the reasons assigned in this Appeal. It is made clear that the dismissal of this Second Appeal will not preclude the

Appellant/Defendant to raise all legal and factual pleas before the Executing Court in the manner known to law and in accordance with law, if so

advised.