P. Kamalesan Vaidyar vs P. Eswara Pillai

Raju, J.—The above second appeal has been filed by the defendant in O.S. No.268 of 1981, who lost before both the courts below.

The respondent herein filed the suit for recovery of a sum of Rs.3,518 with future interest at 9% p.a. on Rs. 3,000 from the date of suit till date

of decree and thereafter at 6% p.a. till realisation.

The case of the plaintiff/respondent before the trial court was that the appellant/defendant borrowed a sum of Rs. 3,000 from the plaintiff on

5.5.1979 and executed a promissory note in his favour agreeing to repay the same with interest at 9% p.a. on demand. It is stated that inspite of

the demand made and the notice issued, the defendant not only filed to pay the amount, but issued a reply containing false and untrue allegations

driving the plaintiff to the necessity of the suit.

The defendant/appellant filed a written statement contending that the defendant did not borrow any amount from the plaintiff, that he did not

execute any promissory note, that the promissory note is a fabricated one and the plaintiff had no funds to lend such an amount and the defendant

also did not have any necessity to borrow from the plaintiff on 5.5.1979. It was also said that in fact the plaintiff was in need of money and for the

purpose of meeting his needs, he sold his property to the defendant. The defendant also claimed that during the month of May, 1979, he was

getting a sum of Rs. 500 from one Soosai Mariyan and Rs. 100 p.m. as rent for his building and the plaintiff, who is working under the said Soosai

Mariyan, has filed the suit at his instance and instigation.

Subsequently, the plaintiff filed a reply contending that the plaintiff during the last 10 years prior to suit, has taken more than 13 sale deeds, that

he is owning 2 acre of coconut garden and 30 cents of paddy lands, that he has got a house and 50 cents of coconut thope as ancestral property

and the defendant has taken on more than one occasion loans from Tiruchencode Co-operative Society to the tune of Rs. 5,000, that he did not

repay the loans and an award has been passed against him and attachment proceedings were initiated for realisation of that loan and the plaintiff

also was possessed of Rs. 6,000 in liquid cash obtained under the sale agreement and has also purchased a house with two cents and 575 sq. links

of site on 3.9.1979. It is only because the defendant was already a tenant, and wanted to purchase the premises, the building as sold to him and

the sale was not on account of any need for money by the plaintiff. The plaintiff also denied any connection with Soosai Mariyan, as stated in the

written statement.

On the above claims and counter claims, the suit came to be tried and on the side of the plaintiff, three witnesses were examined, including the

plaintiff as P.W. 2 and the scribe of the suit promissory note as P.W. 1 and another witness. On the side of the defendant, the defendant got

himself examined as D.W. 1. The plaintiff has marked Exs. A-1 to A-4 and the defendants marked on his side Exs. B-1 to B-4. After considering

the oral and documentary evidence on record, the learned trial Judge decreed the suit, rejecting the defence put forward by the defendant and

holding that the suit promissory note is a genuine one and it has been sufficiently proved that the defendant executed the promissory note and

consequently, the plaintiff has to succeed. Of course, while passing the judgment, the learned trial Judge appears to have observed in paragraph 14

that the decree is passed for realisation of Rs. 3,518 with future interest at the rate of 9% p.a. on the principal sum of Rs. 3,000 from the date of

suit till date of decree and thereafter at 6% p.a. till realisation together with costs from the defendant ''and his movable and immovable assets.''

Apparently on that observation, the decree appear lo have been drafted as though a charge has been created over the movable and immovable

assets of the defendant.

Aggrieved, the defendant filed A.S. No. 29 of 1983 before the Sub Court, Padmanabhapuram. The learned Subordinate Judge by his judgment

and decree dated 29.10.1982, dismissed the appeal, confirming the findings and conclusions arrived at by the learned trial Judge. Hence, the

above second appeal.

At the time of admission, the learned Judge thought fit to formulate the substantial question of law arising in the second appeal to be as to

whether the lower appellate court is wrong in confirming the degree of the trial court creating a charge over the movable and immovable assets of

the defendant when me suit is based on the promissory note?

Mr.Anthony Xavier, learned Counsel appearing for the appellant submitted that he is not precluded from arguing on the other grounds raised in

the memorandum of grounds of appeal also. Without going into the tenability of this submission, I have allowed him to argue the other grounds as

well. As a consequence, the learned Counsel submitted that the courts below committed an error of law in coming to the conclusion that the suit

promissory note was the one executed by the defendant on a mere comparison of the signatures by the court itself, without referring the document

for the examination and report of a hand writing expert and at any rate, in deciding the issue, without the assistance of any hand writing expert.

Learned Counsel also, while reiterating the question of law formulated, contended that even without any specific relief being prayed for a charge,

mechanically a charge has been created in vague terms and such portion of the decree and judgment also cannot be sustained in any event.

Per contra, learned Counsel appearing for the plaintiff/respondent while adopting the reasons assigned by the courts below, has contended that

the concurrent findings recorded by both the court below do not suffer from any patent error, warranting interference of this Court and therefore,

no interference is called for. It was also contended for the respondent that the plaintiff had a right to proceed against the movable and immovable

properties of the defendant to recover the decree amount and therefore, the charge granted against such, properties, cannot be said to be illegal.

I have carefully considered the submissions of learned Counsel appearing on either side. Learned Counsel for the appellant relied upon certain

decisions, to which I shall now make a brief reference. in Govula Ramakistiah Vs. Yerram Yellappa, , a Division Bench of Andhra Pradesh High

Court held that where the defendant denies that he ever executed the document in question, only the plaintiff has to prove the execution of that

document and the burden is on him. In Bhagwan Din Vs. Gouri Shankar and Another, . a learned single Judge of the Allahabad High Court held

that though it is open to a Court to express its own opinion about the identity or otherwise of disputed hand writing or thumb impression, it would

not be safe to base a conclusion entirely on such comparison. In Fakhruddin v. State of Madhya Pradesh (1967) 2 S.C.J. 885, the Apex Court, in

a criminal case, relating to the commission of an offence of conspiracy and punishable u/s 120-B of the Penal Code, had occasion to deal with the

question of a plea of forgery and the proof required therefor. The learned Judges observed that both u/s 45 and Section 47 of the Evidence Act,

the Court must satisfy itself by such means, as are open to the Court viz., its own observation to the admitted or proved writing and to compete

them with the disputed ones in order to satisfy itself on its own observation whether it is safe to accept the opinion of the expert or other witnesses.

It was emphasised therein that in such cases, the court is not itself playing the role of an expert, but is only coming to its own conclusion with the

assistance of the expert whether it can safely be held that the two writings are by the same person. In Kanchensing Dhosk Smgh Thukuar v. State

of Gujarat (1979) 2 S.C.J. 260 the Apex Court once again, while adverting to Section 45 of the Evidence Act, held that in order to rely upon the

evidence of an expert, the court must be fully satisfied that he is a truthful witness and also a reliable witness fully adopt in the art of identification of

hand wilting, in order to opine whether the aileged hand writing has been made by a particular person or not. In State (Delhi) Admn. v. Pali Ram

(1979) 1 S.C.J. 278 The Apex Court has held as follows:

Although there is no bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the

evidence of any handwriting expert, the judge should, as a matter of prudence and caution hesitate to base his finding with regard to the identity of

a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence solely on comparison made by himself.

It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out

whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert.

I have carefully considered the submissions of learned Counsel appearing on either side in the light of the abovesaid principles, which are well

settled one often stated and followed. The sum and substance of the above declaration of law is only to the extent that the courts should not merely

on a comparison, undertake an adjudication of an issue relating to the genuineness or similarity of the signatures disputed one on mere comparison

with the admitted one. In my view, the courts below in this case, have not undertaken any exercise to decide the case on a mere comparison of the

signature alone, could be seen from the judgments of the courts below and particularly that of the learned trial Judge the suit promissory note, Ex.

A-1, which is said to have been executed by the defendant has been proved to be so apart from the evidence of P.W. 2, the plaintiff by P.W. 2,

the scribe. The evidence of the scribe and the plaintiff found acceptance with the trial court. In addition thereto, the learned trial Judge was

convinced that the defendant was not speaking the truth and he has been projecting false pleas to avoid responsibility and liability. To come to such

a conclusion, the learned trial Judge has adverted to two vita facts, viz., the stand taken by the defendant that he was not in need of money and that

he had never borrowed even from the co-operative society, as alleged by the plaintiff. In order to substantiate that the defendant was not speaking

the truth, P.W. 3 has been examined, who produced the loan register extract of the co-operative society which will go to show that the defendant

did really borrow and on account of his default, a decree was passed against him on 6.4.1979 and he has partially remitted the amount thereafter.

The second instance that has been adverted to, to disbelieve the defendant, is the stand said to have been taken by him that he was not in the habit

of writing his name in Malayalam. To show that he is not speaking the truth, in this regard also, the very document Ex. B-2 sale deed executed by

the plaintiff in favour of the defendant and marked on his side, has been relied upon, it is seen, as noticed by the learned trial Judge, that on page

two of the original document, Ex. B-2 the defendant, who was the purchaser under that document, has presented the document before the

Registering Authority and he has signed his name in Malayalam and followed the same by signature in English too. Is is for this limited purpose, in

my view, the comparison of the signature has been undertaken and incidentally, the observation that the signatures in Ex. B-2 of the defendant and

the one in Ex. A-1, appear to be similar, came to be made. All these aspects will go to show that the learned trial Judge has not come to the

conclusion about the genuineness or similarity of the signatures without the assistance of a handwriting expert, merely on a comparison of the

signatures found in the disputed document with the admitted one, but on the further fact by placing reliance on the evidence of P.Ws. 1 and 2 that

the defendant did execute the suit promissory note and on being convinced of the proof of factum of execution of the suit promissory note by the

defendant. Therefore, it cannot be legitimately contended in this case that the decision by the Courts below came to be rendered entirely on the

basis of a comparison undertaken by the learned trial Judge without the assistance of a hand-writing expert. It may also be stated at this stage that

the need for the court taking the assistance of a hand writing expert is not a must in all cases as a matter of course and as an universal principle or

requirement, whenever there is a dispute raised with reference to the execution or dispute relating to the signature found in the document under

contest. If there are other facts sufficient to prove due execution even de hors the need for comparison or taking the assistance of the expert the

burden is on equally the person denying the execution of the document, to have a handwriting expert examined on his side. After all proof of

signature of the executant is only to prove due execution and if such execution could be proved, as in this case successfully by other materials and

the comparison was undertaken by the court only incidentally to have the position doubly assured the same cannot be said to be a serious infirmity.

Adopting or giving credence to such a stand taken for the appellant would, in my opinion, result in grave injustice and the courts, therefore, must

also be left with some discretion without in every case being driven invariably to the necessity of getting an expert''s opinion before deciding a case.

As a matter of fact, even in the cases adverted to, never it was held that either the Courts have no power or that it is precluded from doing so, in

law. That is why, in all the judgments courts in the Country were administering caution to courts, subordinate to be more prudent and observe great

circumspection, in such cases. In this case, in my view, the learned trial Judge has exercised his discretion in this regard reasonably and no infirmity

could be pointed out on this account with the finding recorded by the courts below that the suit pro-note was really executed by the defendant.

Consequently, I see no merit in the challenge made to the judgment of the learned trial judge. As a matter of fact, the first Appellate Court has also

concurred with the findings of the trial court and the concurrent findings recorded by both the courts below in this regard, do not suffer any patent

error of law warranting interference in exercise of second appellate jurisdiction u/s 100, C.P.C.

As for the second ground of challenge, viz., the portion of the judgment and decree, wherein a charge unsought for has been allowed or

granted, as against movable and immovable properties of the defendant, I am of the view that the challenge is well merited. The suit is based on a

promissory note, which contains an out-right borrowal and not even in respect of any debt pertaining to balance of sale consideration, etc. and the

learned trial Judge, without applying his mind, has simply granted a charge and apparently carried away by the relief portion of the plaint where

also it has only been stated that a decree may be passed to recover the same due from the defendant and his movable and immovable properties.

This cannot be said to be a request or a prayer for creating a charge. That apart, a charge when created has to be against specific and identifiable

items of properties and there cannot be any vague or general charge created by making a mechanical reference to the movable and immovable

properties without even describing or listing out such properties. In the absence of any such specification of the so-called movable or immovable

properties, in respect of which a charge is to be created, the very creation of a charge will be a futile exercise with no definite purpose,

whatsoever. In the above circumstances, that portion of the judgment and decree creating a charge against the movable and immovable properties

of the defendant/appellant is hereby set aside; it is needless to point out that it is always open to the plaintiff to enforce the decree in execution,

personally or against the properties, but that is not the samething as to grant a decree as has been done by the courts below. The second appeal is

partly allowed in respect of that portion of the decree and judgment creating a charge over movable and immovable properties and in other

respects, the second appeal is dismissed. No costs.

Consequently, interim stay is vacated and C.M.P. No. 12121 of 1983 is dismissed.