S. Senthil Kumar vs K. Naganathan

Honourable Mr. Justice G. Rajasuria

A resume of germane facts absolutely necessary for the disposal of this Second Appeal would run thus:

The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

The appellant in the Second Appeal happened to be plaintiff who filed the suit praying that the defendant should pay the dues to the plaintiff,

payable under the suit promissory note. The defendant filed the written statement impugning and challenging the claim. Whereupon, issues were

framed and the suit was decreed by the Trial Court, as against which an appeal was filed by the defendant. Whereupon, the Lower Appellate

Court reversed the judgment and decree of the Trial Court and dismissed the suit itself. Challenging and impugning the judgment of the Lower

Appellate Court, the Second Appeal has been focussed on various grounds.

On the side of the plaintiff, several questions of law were suggested, whereupon, my learned predecessor formulated the following substantial

questions of law:

A. Whether the appeal filed by the respondent can be considered without the respondent depositing the disputed amount or furnishing security for

the same as per Order 41 Rule 1(3) of the Civil Procedure Code?

B. Whether the pleading of the defendant and the suggestion put to the plaintiff by the defendant during cross examination of the plaintiff constitute

an admission of execution of promissory note u/s 58 of the Indian Evidence Act, 1872 giving rise to the presumption of consideration u/s 118 of

the Negotiable Instruments Act, 1881?

(extracted as such)

Now, the learned counsel for the respondent would suggest the following additional substantial question of law:

Whether the plaintiff is entitled to get a decree for recovery of money against the defendant on the basis of an alleged pronote said to have been

executed by defendant brother in a suit filed after the life time of the defendant brother?

(extracted as such)

In my considered opinion, the aforesaid substantial questions of law as well as the additional substantial question of law should be reframed.

Before that, I would like to detail and delineate a few facts for better appreciation.

Pithily and precisely, tersely and briefly, the case of the plaintiff is that the deceased-Vasudevan, the only brother of Naganathan, the respondent

herein borrowed a sum of Rs. 2,00,000/- on the suit promissory note. Subsequently, without repaying the same, he died leaving behind the

properties to be inherited by his only brother Naganathan, as the said Vasudevan died as a bachelor. Whereas the defendant would contend that

even though Naganathan happened to be the brother of the deceased-Vasudevan, the deceased-Vasudevan did not leave behind any property to

be inherited by Naganathan. During the life time of Vasudevan, there was an oral partition and in that, a share was allotted to Vasudevan who sold

away his share during his life time and there was nothing left behind by him and as such, the suit filed as against Naganathan is an untenable one.

No doubt, the plaintiff failed to examine the attesting witnesses to the suit pronote and the first Appellate Court pointed out the same but without

giving an opportunity to the plaintiff to examine such witnesses, the appellate Court simply reversed the finding of the Trial Court and dismissed the

suit itself.

The learned counsel for the appellant would pray for remitting the matter to the Trial Court so as to enable him to adduce evidence by way of

examining the attestors to the suit promissory note. He would hasten to add that he would also get the assistance of an Finger Print Expert for

proving the genuineness of the signature of the deceased-Vasudevan in the suit pronote.

Whereas, the learned counsel for the defendant would reiterate the stand in the written statement and submit that a second opportunity cannot

be given to the plaintiff who slept at the switch. The suit was filed in the year 2007 and at this point of time, if the matter is remanded, the defendant

would be put to discomfiture. Naganathan, being the brother of the deceased-Vasudevan even by phantasmagorical thoughts cannot be described

as a person who is liable to discharge the debt incurred by the deceased-Vasudevan and that too, when he has not inherited any property from

Vasudevan.

In this factual matrix, I would like to reframe the substantial questions of law as under:-

1) Whether the first Appellate Court was justified in reversing the judgment of the Trial Court without adverting to the various points dealt with by

the Lower Court in decreeing the suit?

2) Whether the Trial Court was justified in giving a finding that the defendant''s plea that he had not inherited any property of Vasudevan at that

stage itself, instead of leaving that point to be decided at the EP Stage in accordance with Section 50 of CPC?

3) Whether the Appellate Court is correct in giving a finding that the pronote was not proved for want of examination of the attesting witnesses?

4) Whether there is perversity or illegality in the judgment of the appellate Court?

I would like to detail and delineate the scope of Section 50 CPC which is extracted hereunder:

Legal Representative.-(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the

Court which passed it to execute the same against the legal representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has

come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its

own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

In a matter of this nature, even if the plaintiff proves that the deceased-Vasudevan executed the suit pronote and died without discharging the debt,

and obtain a decree for recovery of money, yet, during the EP stage, the plaintiff-decree holder should prove that Naganathan in fact inherited or

got the property from the deceased Vasudevan. It is a matter to be considered at the execution stage and not at the stage of disposal of the suit

itself as it has been done by the Trial Court.

No doubt, the learned counsel for the plaintiff would make a supine submission to the effect that the witnesses to the suit were not examined,

and even an expert''s assistance was not sought for to prove the genuineness of the signature of the deceased-Vasudevan in the suit pronote. The

question before this Court is as to whether one more opportunity has to be given.

Here, it is a technical procedure which a litigant cannot be expected to know in detail. He should have been advised properly but that was not

done so. Because of the inability on the part of the plaintiff to get proper legal advise for examining the attesting witnesses to the suit promissory

note and also in taking the assistance of an Handwriting Expert, he should not suffer. Nonetheless, the first Appellate Court correctly held that the

attesting witnesses were not examined, yet in the factual circumstances of this case it failed to give one more opportunity to prove the suit pronote

and for that matter the plaintiff also did not seek for adducing additional evidence therein.

The learned counsel for the defendant would submit that because of the inaction or ignorance of the plaintiff, the defendant should not be made

to suffer. No doubt, the misfortune of one should not unnecessary affect the welfare of another. Hence I would like to point out that ultimately at

the time of disposal of the suit by the Trial Court, the cost shall follow the event throughout.

The Trial Court also while decreeing the suit, simply relied on the portion of deposition of P.W. 1 and held that that would be sufficient to

establish and point up that the defendant admitted his liability, which is not correct. The learned counsel for the plaintiff himself would fairly concede

to such defect in the judgment of the Trial Court. Hence, I am of the view that the judgment and decree of the Courts below are to be set aside

and the matter remitted back to the Trial Court with the following mandate:

The plaintiff shall be given due opportunity to examine the attesting witnesses to the suit promissory note; whereupon the defendant shall be

given the right to cross-examine all those witnesses and also adduce additional evidence. Over and above that, if the plaintiff so desires, he is at

liberty to file an application for taking the assistance of an handwriting expert to compare the disputed signature with that of the admitted ante litem

motam signatures and in that event, the Court should be liberal in ordering the assistance of an handwriting expert. Care shall be taken to see that

the matter is disposed of within a period of four months from the date of receipt of a copy of this order. The Second Appeal is disposed of

accordingly. Consequently, the connected miscellaneous petition is closed. No costs.