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Manyam Janakalakshmi Vs. Manyam Madhava Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Nos. 347 to 349 of 1969
Judge
Reported inAIR1973AP103
ActsNegotiable Instruments Act, 1881 - Sections 118
AppellantManyam Janakalakshmi
RespondentManyam Madhava Rao and ors.
Appellant AdvocateA. Bhujanga Rao, ;A. Bhujangarao and ;G.S. Dwarakeshwara Rao, Advs.
Respondent AdvocateB. Ramalingeswara Rao, Adv.
Excerpt:
- - the other half of his property was bequeathed to his wife seshamma to be enjoyed by her during her lifetime and thereafter to go to his father in law surayya with absolute rights. he, however, failed to do so. papa rao was always a strong willed person and was in no need of any advice from any one. 5). as he did not get well he was taken to vellore on 15-7-1965 where they stayed for 29 days. per cent, in association with conditions like diabetes millitus and hypertension might result in patients being disturbed in their mental attitude. his condition was not bad then and he himself had been treating him as an outpatient for a long time and so he knew about his conditions. the evidence discloses that papa rao was a strong willed person and was able to take care of his affairs.....chinnappa reddy, j.1. manyam janakalakshmi, plaintiff in o.s.no. 7 of 1966 on the file of the district court, east godavari and the defendant in o.s. nos. 24 and 28 of 1966 is the appellant in these three appeals. she is the widow of manyam venkatakrishna papa rao who died on 15-8-1965. papa rao had a first wife by the name atchayamma, through whom he had three sons, madhava rao, ramamohana rao and suryachandra rao. they are defendants 1 to 3 in o.s. no. 7 of 1966. rammohana rao is the plaintiff in o.s.no. 24 of 1966 and madhava rao is the plaintiff in o.s. no. 28 of 1966. atchayamma died on 3-6-1955 on which date her youngest son suryachandra rao was a minor. on 3-6-1955 venkatakrishna paparao effected a partition between himself and his three sons by a registered deed ex, a-15. by this.....
Judgment:

Chinnappa Reddy, J.

1. Manyam Janakalakshmi, Plaintiff in O.S.No. 7 of 1966 on the file of the District Court, East Godavari and the defendant in O.S. Nos. 24 and 28 of 1966 is the appellant in these three appeals. She is the widow of Manyam Venkatakrishna Papa Rao who died on 15-8-1965. Papa Rao had a first wife by the name Atchayamma, through whom he had three sons, Madhava Rao, Ramamohana Rao and Suryachandra Rao. They are defendants 1 to 3 in O.S. No. 7 of 1966. Rammohana Rao is the plaintiff in O.S.No. 24 of 1966 and Madhava Rao is the plaintiff in O.S. No. 28 of 1966. Atchayamma died on 3-6-1955 on which date her youngest son Suryachandra Rao was a minor. On 3-6-1955 Venkatakrishna Paparao effected a partition between himself and his three sons by a registered deed Ex, A-15. By this deed the family properties were divided into four shares. One share was allotted to the father and the other three shares were allotted to the three sons by the first wife. Papa Rao was assessed to Income - tax in respect of certain money lending business carried on him. This business was treated as the separate property of Papa Rao and was excluded from the division. Papa Rao had also obtained certain properties under a will executed by his brother in law Ganeswara Rao. These properties were also treated as the separate properties of Papa Rao and excluded from the division. Express recitals to the effect that the money lending business and the properties obtained under the will of Ganeswara Rao were the separate properties of Papa Rao were made in the deed of partition. Ganeswara Rao was the husband of Papa Rao's sister. He had no issue. He executed a will by which he bequeathed half of his property to a boy who be directed should be taken in adoption by his wife. The other half of his property was bequeathed to his wife Seshamma to be enjoyed by her during her lifetime and thereafter to go to his father in law Surayya with absolute rights. The will also provided that if Surayya pre-deceased Seshamma the half share was to go to Surayya's sons and grandsons. Surayya died in 1941 and Seshamma died in 1950. After Seshamma's death a half share of the properties came to Papa Rao and his two brothers. As directed by the will of her husband Seshamma made an adoption. After Seshamma's death, one Subba Rao. An agnate of Ganeswara Rao filed O.S.No. 11 of 1951 in the District Court, Rajahmundry, challenging the will and the adoption. The will and the adoption were upheld by the District Court, High Court and the Supreme Court in successive appeals. On the date of the partition between Papa Rao and his sons the litigation was still pending. As we said earlier the properties which Papa Rao received under the will of Ganeswara Rao were treated as the separate properties of Papa Rao and were not included in the partition. Shortly after the execution of the partition deed Madhava Rao and Ramamohana Rao, the two adult sons of Papa Rao raised disputes claiming a share both in the money lending business and in the properties bequeathed by Ganeswara Rao. At the intervention of elders Papa Rao executed a letter, Ex. B-23 dated 7-9-1955 agreeing to give a share to his sons. He, however, failed to do so. Therefore 1955 in the District Court, Rajahmundry, to reopend the partition and to make a fresh division after including the money lending business and the properties bequeathed by Ganeswara Rao in the properties available for partition. According to the allegations in the plaint the money lending business was of the tune of Rs.4 laks. The suit was resisted by Papa Rao who contended that the money lending business was not joint business and that the properties bequeathed by Ganeswarao Rao were his separate properties. The suit was transferred to the Sub-Court and renumbered as O.S.No.11 of 1956. About an year after the institution of the suit Papa Rao married Janakalakshmi as his second wife and during the pendency of the suit a son and two daughters were born to him by the second wife. Notwithstanding the pendency of the suit, on 6-12-1957 Papa Rao executed a gift deed, Ex.A-1 giving to Janakalakshmi Ac.34-10 cents of land from the property which was bequeathed to him by Ganeswara Rao. After the execution of the settlement deed Janakalakshmi and her minor son were also impleaded as parties to O.S. No. 11 of 1956. The litigation was long drawn out and finally on 5-1-1965 the parties entered into a compromise and a compromise decree (Ex.A-8) was passed. The compromise was signed by Papa Rao, Madhava Rao, Ramamohana Rao, Janakalakshmi for herself and as guardian of her minor son. Under the terms of the compromise it was agreed that the three sons of Papa Rao by his first wife should be entitled to a 1/4 the share each in the properties bequeathed by Ganeswara Rao including the land which papa Rao had gifted to Janakalakshmi. It was also agreed that a total sum of Rs.60,000/- should be paid to the three sons, towards their share of the profits from Ganeswara Rao's properties which were in the possession of Papa Rao as party - receiver. It was recited that out of the sum of Rs.60,000/- a sum of Rs.18,000/- was paid in cash and that the balance of Rs.42,000/- may be withdrawn by the three sons from the amounts lying in deposit in Court to the credit of the suit. It was also agreed that the money lending business carried on by Papa Rao was the separate business of Papa Rao in which the sons had no share. Papa Rao died on 11-8-1965 and O.S.No. 11 of 1956 in so far as it affected her right to the properties figted to her by her husband and for possession of those properties. She pleaded that the properties bequeathed by Ganeswara Rao were the separate properties of Papa Rao and that Papa Rao had the right to deal with the properties absolutely. In exercise and assertion of that right he made a gift of Ac. 34-10 cents to the plaintiff. Though she was impleaded as a party to O.S. No. 11 of 1956 there was no issue in regard to the gift in her favour. She pleaded that Papa Rao was seriously ill for some time prior to the compromise. He was suffering from diabetes, high blood pressure kidney trouble, albuminuria and enlargement of the heart. He was almost prostrate. He was taken to Rajahmundry at the time of the compromise. His physical and mental condition was such that he was not in a position to exercise any will or judgment of his own. He had no independent advice and his sons were in a position to dominate his will. They used the opportunity to secure an advantage to themselves and made Papa Rao agree to the compromise under duress, coercion and undue influence. The plaintiff's signature to the compromise was obtained without the terms of the compromise being explained to her. She did not know the implications of the compromise or the effect of the compromise upon her rights under the deed of the gift. She had none to advise her and was in a helpless position. She put her signature because of the desire of Papa Rao. Her signature to the compromise was not the result of any free and voluntary exercise of her own will. It was the result of coercion, pressure and undue influence exercised by the defendants directly and through her husband.

2. The suit was resisted by defendants 1 to 3. They pleaded that under the will of Ganeswara Rao the property was bequeathed to the sons and grand sons of Surayya and therefore, the property was ancestral property in the hands of Papa Rao. Papa Rao himself treated the property as the joint family property by his letter dated 7-9-1955. The deed of gift executed in favour of the plaintiff was after the institution of the suit O.S.No. 11 of 1956. It was apparently brought into existence with a view to create trouble for the defendants. The defendants denied that Papa Rao was seriously ill form some time prior to the compromise. They admitted that he had a diabetic tendency form some years before his death and that he suffered from albuminuria for a month or two before his death. They however, pleaded that he was quite all right at the time of the compromise and that he was not a patient in any hospital at the time of the compromise. It was only long subsequent to the compromise that he was admitted into the hospital at Vellore. Papa Rao was always a strong willed person and was in no need of any advice from any one. The defendants were never in a position to dominate Papa Rao or his wife. Papa Rao and the plaintiff willingly entered into the compromise as it was to their advantage and to the advantage of their branch of the family. The suit filed by the first defendant had already been pending for nearly nine years. Papa Rao wanted to give a quietus to the litigation. He himself had produced the letter. Ex B-7 and he was conscious of its contents. He was unwilling to go into the witness box as he was apprehensive of cross-examination regarding his money lending business. Papa Rao and the plaintiff were anxious to save for themselves and their children the entire cash of Rs. 4 to 5 lacs with which Papa Rao was carrying on the money landing business. By the terms of the compromise the money lending business was secured for Papa Rao and his children by the plaintiff. It was, therefore, very much for the benefit of the plaintiff. The suit was unjustly filed as defendants 1 and 2 from each of whom the plaintiff had borrowed Rs.15,000/- under promissory notes were pressing for repayment of the debts due to them.

3. The plaintiff filed a rejoinder in which she stated that shortly prior to the date of the compromise defendants 1 and 2 used to visit their ailing father on the pretext of the latter's illness. On the date of the compromise they took the plaintiff in a car to Rajahmundry saying that they would take him to a hospital. At Rajahmundry they got him to execute the compromise petition at a time when he had no independent advice. After obtaining the signature of Papa Rao in the compromise petition they returned to Torredu and obtained the plaintiff's signature to the compromise petition and to some other papers under compulsion and coercion. She signed at the behest of her husband. She denied that she had even borrowed any money from defendatns 1 and 2.

4. O.S.Nos. 24 and 28 of 1966 were filed by Ramamohana Rao and Madhava Rao to recover the monies said to have been borrowed by Janakalakshmi under promissory notes dated 8-1-1963 and 20-3-1965 respectively. Janakalakshmi contested the two suits denying execution of the promissory notes. She pleaded that in addition to the sum of Rs.60,000/- mentioned in the compromise decree in O.S.No.11 of 1956 her husband Papa Rao directed here to make over to the plaintiffs in O.S.Nos. 24 and 28 of 1966 some promissory notes standing in her name. She was asked to transfer those promissory notes and in that connection she put her signature to various papers in which the two plaintiffs asked her to sign. She never borrowed any amount from either of the plaintiffs.

5. The three suits were tried together by the learned Additional District Judge O.S.No. 7 of 1966 was treated as the principal suit and the parties were the referred to throughout by their ranks in that suit. The learned Additional District Judge held that the compromise in O.S.No. 11 of 1956 was not vitiated by any undue influence exercised either on Papa Rao or on the plaintiff. It was valid and binding on Janakalakshmi. O.S.No. 7 of 1966 was therefore, dismissed. The learned Additional District Judge found that the version which Janakalakshmi gave in her evidence that she signed on blank papers to which stamps were affixed and that the promissory notes were brought into existence in that manner was not true. He also found that the version of the two plaintiffs in O.S. Nos. 24 and 28 of 1966 that Janakalakshmi borrowed cash of Rupees 15,000/- from each was also not true. But having regard to the presumption under Section 118 of the Negotiable Instruments Act he decreed both those suits.

6. We will first consider the question whether the compromise in O.S. No. 11 of 1956 was vitiated by any undue influence practiced either on Papa Rao or on Janakalakshmi. Besides, herself the plaintiff examined two of the doctors who attended on her husband to speak to his physical and mental condition. She stated in her evidence that she was married in 1956 and that her husband about thirty or thirty one years older than her. Her husband was quite healthy for about three years after the marriage. Thereafter he was suffering from diabetes and high blood pressure. He also had heart disease and was seriously ill for a year before his death. He underwent treatment at Rajahmundry under several doctors. He was seriously ill in December, 1964 during which time he was under the treatment of Dr. Rangaiah Choudary. P.W.7. He was under his treatment in January 1965 also. Thereafter he was treated by late Dr. Rama Rao and then by Dr. Seetharam and Dr. Hiraums (P.W.5). As he did not get well he was taken to Vellore on 15-7-1965 where they stayed for 29 days. One night the disease took a serious turn and he was taken to Madras from Vellore. Ge died at Madras on 15-8-1965. In December, 1964 and January, 1965 he was seriously ill. His eyes used to be red and there was reeling and heaviness of the head. He would cry and he was often forgetful. He would ask for coffee and when coffee was brought to him he would exclaim that he never asked for it. He was incapable of any independent thought. In cross-examination she stated that her husband developed hypertension three or four years after he marred her. He suffered tremor in legs and used to drink a lot of water. His breathing was hard. She however, admitted that till five or six months before his death her husband was never an inpatient in any hospital. It was only in March or April that he first became an inpatient in the Nursing Home of Dr. Seetharam. She stated that she was unable to explain why she did not mention in the plaint the names of the various doctors who treated her husband. She admitted that on the date of compromise her husband was not in any hospital. She first denied that Rangaiah Chowdary was related to her. Then she said that he was distantly related to her. Finally, she admitted that Mangayamma. The sister of Rangaiah Choudary's wife Ramanamma was the daughter in law of her elder sister Venkataratnamma. She asserted that her husband had become mentally unsteady before his death. But she was unable to say how long prior to his death he had developed that infirmity. When her husband was an inpatient in the Nursing Home of Dr. Seetharam the defendants and her sister's husband used to attend on her hushand. But she admitted that that was in March or April 1965. Even when he was in the hospital her husband, would come to Torredue to see the children. She admitted that her husband executed a will on 14-2-1965 but stated that she was not consulted before the will was executed. She further stated that she did not read the will. She denied that she was pretending ignorance of the contents of the will as her husband had affirmed the compromise by the will. It may be mentioned here that the last will of Papa Rao. Ex. A-9 which was executed by Papa Rao on 14-2-1965 bequeathing all his properties to his son expressly refers to the compromise and affirm it.

7. P.W. 7 Dr. Rangaiah Chowdary stated that he treated Papa Rao from December 1963 to December, 1964. He had lost all his records and therefore, he was unable to give the exact period. Papa Rao suffered from hypertension, diabetes and albuminuria. Later when his bood was tested at Kakinada it was found that he had high blood urea also. He was forgetful and getting week physically. He was lethargic both physically and mentally. In cross-examination he admitted his relationship with the plaintiff. He admitted that Papa Rao himself used to come to his nursing home and take treatment and that he never went to Papa Rao's house to treat him. He also admitted that in the beginning Papa Rao responded to the treatment and his hypertension and sugar in urine came down. He admitted that Papa Rao was never an in-patient in his nursing home. He always came as an out-patient. When he prescribed a medicine and asked him to take, this medicine. This forgetfulness he developed during the course of the treatment. He got more and more forgetful. He admitted that he never asked Papa Rao to get himself admitted as in patient in his nursing home. He stated that Papa Rao's conditions was not dangerous when he left his treatment. It was not a case for surgery and all that was necessary was done by him and the other doctors. Papa Rao was answering his questions in a coherent manner. Forgetfulness and lethargy might be due to uraemia. Unless the blood urea was brought down the mental condition would not be improved.

8. P.W.5 the Superintendent of Lutheran Hospital. Rajahmundry stated that Papa Rao was admitted in the hospital on 13-5-1965 for diabetes militus, hypertension and symptoms of uraemia. He was discharged on 16-5-1965. At the time of his admission his blood urea was 130 mg per cent. He was again admitted in the hospital on 3-7-1965. On that day his blood urea was 160 milligrams per cent. He left the hospital on the same day at his request. He was advised to go to Vellore for treatment if he wanted. The percentage of urea in the blood of a normal healthy individual was 20 to 40 per cent milligrams. From the fact that Papa Rao's blood urea was 130 mg per cent it was not possible to say since how long Papa Rao was having ureamia. It might be years or it might be months. When he examined Papa Rao in May he was lethargic and mentally disturbed. He would not be provoked and he was grousy. Blood urea of 130 mg. Per cent, in association with conditions like diabetes millitus and hypertension might result in patients being disturbed in their mental attitude. They might not appreciate what was going on round them. In cross-examination he stated that he himself discharged Papa Rao on 16-5-1965 as his condition had improved. He did not notice the mental condition of the patient when he was again admitted on 4-7-1965. When Papa Rao was admitted in the hospital in May he did not ascertain from him whether he had undergone treatment from any other doctor previously. His condition was not bad then and he himself had been treating him as an outpatient for a long time and so he knew about his conditions. He was not in a state of coma on either of the occasions when he was admitted in the hospital. But even without coma a person, may be mentally lethargic if the blood urea is high. Uraemia was the result of kidney damage. The damage would not occur all at once. A person with blood urea of 130 mg. Per cent must have had it for some considerable time. The symptoms of uraemia were head-ache, restlessness, muscular twitching, mental disturbances, nausea, vomitting and diarrhoea. The hypertension with which Papa Rao suffered was not of a malignant variety.

9. The report of the doctor who examined Papa Rao at Vellore was filed by the defendants as Ex. B-8. It shows that Papa Rao was admitted in the Vellore hospital with complaints of '(1) Jerky movements of all forelimbs for one months (2) inability to stand or walk, one month (3) generalised swelling of the body one month (4) cough with expectoration, one week (5) history of diabetes and hypertension being treated for ten years'. On examination he was found to be unable to stand up and there were tremors and jerky movements. He was depressed. Blood urea was 160 mg. Per cent, on 17-7-65. On 12-8-65 the blood urea was 190 mg. Per cent. On repeated examination urine showed a trace of albumen only once. On 12-8-1965 he developed cheyne stokes breathing artificial respiration was started and he was incubated to cerebro vescular accident.

10. From the evidence of the plaintiff and the doctors and the evidence afforded by the medical report it is clear that Papa Rao suffered from diabetes and hypertension for some time. But he was by no means seriously ill until about one or two months prior to his death. Till he was admitted in the nursing home of Seetarama Rao in March or April, 1965, he was apparently never bedridden. He was moving about actively and whatever treatment he got from doctors was as an out-patient and never as an in-patient The evidence does not at all show that Papa Rao was enfeebled either in body or in mind on the date of compromise. On the other hand, P. W. 8, the advocate who appeared for Janakalakshmi and her son in O. S. No. 11 of 1956 stated in his cross-examination that at the time of recording of the compromise Papa Rao was able to talk coherently and was able to understand the significance of what he was doing. P. W. 10 who was appearing for Papa Rao in O. S. No. 11 of 1956 admitted in the cross-examination that Papa Rao's mental condition was then sound and he was able to understand his questions and answer them coherently. D. W. 1. an advocate practicing at Rajahmundry stated that he was taken by Papa Rao from Torredu in connection with the compromise between Papa Rao and his sons. Papa Rao, the first defendant and Rama Rao, the clerk of his friend Venkatachalam came to him. Papa Rao requested him to oblige him by going to Torredu to attest some papers as he was settling all his disputes with his sons. He went to Torredu in the car driven by the 1st defendant. At Papa Rao's house he attested a special vakalat and affidavit executed by Papa Rao's wife. She executed them in his presence. He questioned her whether she understood the contents of Exs. B-7 and B-10 and it was only after satisfying himself that she understood the contents that he attested the documents. Afterwards he returned to Rajahmundry. At that time Papa Rao was able to move about freely and actively. The evidence of D. W. 1 and the admissions of P. Ws. 8 and 10 establish that Papa Rao entered into the compromise voluntarily and that it was not the result of any undue influence. In addition to the evidence of these witnesses there is also the evidence of D. W. 2 an advocate practising at Rajahmundry who deposed to the execution of the will, Ex. A-9 by Papa Rao. He stated that he had appeared for Papa Rao in several suits and that he also appeared for Janakalakshmi herself came to his house once in connection with the registration of Papa Rao's will. That will was Ex. A-9. It was presented for registration at his house and he himself identified Papa Rao before the Sub-Registrar. The will itself had been prepared earlier and Papa Rao discussed with him the contents of the will several times. He was in possession of all his mental faculties. Both at the time of the execution of the will which was about two months and 14 days before it was registered and at the time of registration Papa Rao was in a sound mental condition. The will was written by his clerk. Rama Rao had a paralytic stroke and had lost his speech. The evidence of D. W. 2 establishes due execution of the will by Papa Rao in a sound state of mind as also the knowledge of the plaintiff of the contents of the will. As already stated by us earlier the will expressly refers to the compromise and affirms it. P. W. 10 the advocate who was appearing for Papa Rao in O. S. No. 11 of 1956 no doubt stated that he was not consulted about the terms of the compromise. The evidence discloses that Papa Rao was a strong willed person and was able to take care of his affairs himself without anybody's advice. He apparently thought that he did not need the advice of any lawyer to enter into a compromise with his own sons. At this juncture we may usefully refer to a significant admission by the plaintiff herself. In her examination in chief she referred to some discussion about the compromise between her husband and defendants 1 and 2. In cross-examination she admitted that the defendants talked about the compromise to which she referred in her examination in chief not on the sly but openly in her presence. She pretended ignorance of the terms of the compromise and said that Narasimham, P. W. 11 went with her husband along with the defendants to Rajahmundry and that he knew of the details of the compromise. The evidence of Narasimham who was examined as P. W. 11 does not show that there was any undue influence. On the other hand, he came out with an entirely new story of deception. According to him the terms agreed to by Papa Rao and the defendants were that Papa Rao should give his three sons by the first wife a sum of Rs. 1,10,000 /-. He admitted in cross-examination that both at the time of the compromise and at the time of the execution of the will which he attested Papa Rao was in a condition to understand what he was doing. We have therefore no hesitation in coming to the conclusion that Papa Rao was not subjected to any sort of undue influence when he entered into the compromise, Ex. A-8.

11. The next question for consideration is whether the plaintiff agreed to the compromise because of any undue influence exercised on her. According to her evidence she held her husband in awe and was not talking to him freely. She never questioned him about anything. On the date of the compromise her husband was taken away to Rajahmundry along with Narasimham. They returned at 12 noon. Her husband appeared to be in dazed condition. She questioned the first defendant and he told her that Dr. Ramana Rao had examined Papa Rao and that he was given some medicines. She then served food to her husband and sat by his side. The first defendant then said that it was time to go to Court and asked Papa Rao to get the compromise papers signed by her. Her husband then asked her to sign wherever the first defendant asked her to sign in the compromise papers. Accordingly she signed on the compromise papers, but she did not read them nor were they read over to her by any one. She did not know the contents of the papers. She was not aware of the terms of the compromise. She signed the compromise papers as she was asked by her husband to sign and she could not raise any question before her husband. She was not aware that the compromise related to the lands which had been gifted to her by her husband. In cross-examination she admitted that her husband would act against her interest. She also stated that she was not aware of the contents of the will executed by her husband. She stated that she was not aware whether any special vakalat had been given by her to an advocate to admit the compromise in Court. She admitted that the signature in Ex. B-7 was hers. She admitted that the compromise papers were signed at Torredu in their house but she did not remember whether she signed Ex. B-7 vakalat at that time. She did not go to Rajahmundry on 5-1-1965 and therefore she stated she must have signed Ex. B-7 at Torredu. She denied that she signed the vakalat in the presence of Sri V. V. Sarma, advocate who was brought from Rajahmundry. P. W. 11, Narasimham also stated in his evidence that the plaintiff signed the compromise papers on being asked to do so by her husband. The evidence of these two witnesses is obviously false in view of the evidence of Sri V. V. Sarama, advocate who was examined as D. W. 1. We have already referred to his evidence. He categorically stated that he was taken from Rajahmundry to Torredu by Papa Rao in a car, that Exs. B-7 and B-10 were executed by the plaintiff in his presence and that the plaintiff told him that she understood the contents of Exs. B-7 and B-10. We have no hesitation in accepting the evidence of D. W. 1. We have already referred to the circumstance that the will also contains an express reference to the compromise and to the fact that the advocate D. W. 2 stated in his evidence that the plaintiff herself came to him in connection with the registration of Papa Rao's will. It is clear that the plaintiff is pretending ignorance of the contents of the compromise and the will merely to suit her present case. No doubt Papa Rao was a strong willed person. But that does not mean that he took undue advantage of the position of his wife. At the time when he entered into the compromise the situation was that the litigation had been pending for several years. He had been directed to produce his account books into Court and he was reluctant to produce them into Court. He had already executed the letter, Ex. B-23 dated 7-9-1955 in favour of the defendants. His sons were ready to treat the money lending business as the separate business of Papa Rao. That would save a large amount of cash for himself , the plaintiff and their children. It was under these circumstances that he entered into a compromise which only reiterated what he had already agreed to do when he executed the letter Ex. B-23. The gift in favour of the plaintiff was made during the pendency of O. S. No. 11 of 1956. It was, therefore, subject to the result of the litigation. Apparently the plaintiff also thought that it would be in the interests of the family to agree to the properties covered by the gift deed also being subject to division like other family properties. That would secure peace for the family and it would also secure for herself and her children through her husband the vast money lending business. We have no doubt that no undue influence was exercised on the plaintiff and that she entered into the compromise voluntarily as it was for the benefit of the family. We may also notice here that it was not as if the plaintiff was being left destitute. She admitted in her cross-examination that her husband purchased lands of the extent of 150 acres in Kannapuram and 4 acres in Torredu in her name. She no doubt stated that it was purchased with the money given to her as Katnam. She then contradicted herself and said that the lands were purchased by her brother at the time of her marriage. We have no doubt that her husband purchased considerable property for her benefit.

12. These findings are sufficient to dispose of A. S. No. 347 of 1969 which is accordingly dismissed with costs.

13. A. S. Nos. 348 and 349 of 1969 are against the decrees granted on the basis of the promissory notes dated 8-1-1965 and 20-3-1965 executed by Janakalakshmi in favour of Ramamohana Rao, & Madhava Rao. In regard to these promissory notes the case of Janakalakshmi was that she did not execute them. She tried to explain her signatures in Exs. B-1 and B-2 by stating that her husband wanted her to give Madhva Rao and Ramamohana Rao promissory notes standing in her name of the value of Rs. 50,000 /- She accordingly gave some promissory notes to them . Two to three days afterwards Madhva Rao and Rammohan Rao came and told her husband that they were unable to collect the amounts covered by the promissory notes as the promissory notes stood in her name. They said that they would not be able go collect the amounts unless she signed papers transferring the promissory notes to them. Her husband then asked her to sign on whatever papers they asked her to sign. She, therefore, signed in some papers. They are blank papers but some of them contained stamps. In cross-examination she was unable to explain why she did not mention in the written statement that her signatures were obtained on blank papers containing stamps. She went to the extent of saving that she did not know what a promissory note was. But in the very next sentence she admitted that she knew that the promissory note should be executed on revenue stamps. The learned District Judge refused to accept her explanation as to how her signatures came to be found on Exs. B-1 and B-2 the two promissory notes. We agree with him that her version that she signed on blank papers containing stamps and that the promissory notes were written up later is false. The learned counsel for the appellant did not also canvass this finding. The learned District Judge found that the case of Madhava Rao and Ramamohana Rao that they advanced cash of Rs. 15,000/-. Each was also not true. This finding was questioned before us by the learned counsel for the respondents. He submitted that there was really no reason why the evidence of the scribe and the attestors should not have been accepted by the learned District Judge. It is indeed very difficult for us to accept the version that Janakalakshmi was in need of cash for her agricultural expenses and that therefore she borrowed cash from Madhava Rao and Ramamohana Rao. Her husband was possessed of considerable cash and there was no apparent reason why she should borrow two sums of Rs. 15,000/- in such quick succession. It is not also clear from the evidence what those agricultural expenses were that required the enormous expenditure of Rs. 30,000/- in the course of three months. We agree with the finding of the learned District Judge that the case of the plaintiffs in O. S. Nos. 24 and 28/1962 that the two promissory notes were supported by cash consideration was not true. Though the learned District Judge found that the plea of cash consideration was not true he nonetheless decreed the suits on the basis of the presumption under Section 118 of the Negotiable Instruments Act. He thought that there must have been some other consideration for the promissory notes. The question, therefore, is whether the learned District Judge was right in decreeing the suits having found that there was no cash consideration for the promissory notes,

14. Sri Bhujanga Rao, learned counsel for the appellant urged that the consideration recited in the promissory notes and pleaded in the respective plaints having been found to be not true the burden on the promissory to prove want of consideration was discharged and, therefore, the suits should have been dismissed. We will consider the validity of this contention. Section 118(a) of the Negotiable Instruments Act is as follows:

'Until the contrary is proved the following presumptions shall be made: (a) that every negotiable instruments was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.'

15. A 'negotiable instrument' means a promissory note, bill of exchange or cheque payable either to order or to bearer. (Section 13). A 'promissory note' is an instrument in writing containing an unconditional undertaking signed by the maker to pay a certain sum of money only to, or to the order of a certain person, or to the bearer of the instrument. A 'bill of exchange' is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, certain person or to the bearer of the instrument.

16. A 'promissory note' is therefore an unconditional undertaking and a 'bill of exchange' is an unconditional order to pay a certain sum of money. The law required that both should be signed by the maker. But the law does not require that a negotiable instrument should recite the consideration for which it is made or drawn. The law does not also require the person suing on the instrument to allege the consideration for which it was made or drawn. Irrespective of any allegation in the plaint regarding consideration, the law presumes that the instrument was made or drawn for consideration. The presumption is that there was consideration and not that there was any particular consideration, that which might be recited in the instrument or that which might be alleged in the plaint. The presumption arises as soon as the execution of the instrument is proved and the presumption continues until 'the contrary is proved' that is, until it is proved that there was no consideration. It must be proved that there was no consideration at all for the instrument. Mere proof that the particular consideration recited or alleged did not exist may not suffice, though such proof must naturally be a circumstance to be considered in deciding whether there was no consideration at all. Therefore, a plaintiff who, quite unnecessarily, adduces evidence to prove a certain consideration but is unable to prove that consideration but is unable to prove that consideration, need not necessarily lose his action for that reason. The burden of proving that there was no consideration is on the defendant and the burden has to be discharged irrespective of the failure of the plaintiff to prove a particular consideration which he sets out to prove. The failure of the plaintiff to prove a particular consideration may itself probabilise the defendant's version and lead to the conclusion that there was no consideration at all; on the other hand, it may not. Where the failure of the plaintiff to prove a particular consideration does not tend to probabilise and lead to the acceptance of the defendant's version, as in a case where the defendant's version is found to be false, the presumption under Section 118 still operates and the plaintiff is entitled to get a decree.

16-A This was the view expressed by Chagla, C. J. And Bhagwati, J., in Tarmahomed v. Tyeb Ebrahim, (AIR 1949 Bom 257) (sic) (in which the defence was whether the hundis?) were passed for accommodation. The defence was not accepted. The hundies mentioned a certain consideration but in the suit the plaintiff put forward a different consideration which also he failed to prove. The trial Judge (Tendolker J.) decreed the suit on the ground that the defendant had failed to discharge the burden of proving that there was no consideration. Chagla, C. J. And Bhagwati, J., affirmed the decree of the trial Judge, Referring to the presumption under Section 118 of the Negotiable Instruments Act they said.

'Now Section 118, Negotiable Instruments Act, raises a statutory presumption in favour of there being consideration for every negotiable instrument.............. The statutory presumption continues until it is rebutted, and the only way it can be rebutted is by providing the contrary viz., that the negotiable instrument was without consideration. '

Dealing with the argument that the presumption under Section 118 was rebutted as soon as it was shown that the consideration mentioned in the negotiable instrument was not the real consideration the learned Judges said.

'It is impossible to accept that contention, because the presumption that is raised under Section 118 is not in respect of the consideration mentioned in the negotiable instrument ; the presumption is in favour of there being a consideration for the negotiable instrument, any consideration which is a valid consideration in law ... ... .... ... .... ..... ....It is perfectly true that if a particular consideration is mentioned in a negotiable instrument and that consideration is found to be false and some other consideration is set up, that is a factor which the Court would take into consideration in deciding whether the defendant has discharged the burden cast upon him by Section 118. But it is very different thing to say that merely because the consideration as mentioned in the negotiable instrument turns out to be false therefore the statutory presumption is rebutted and the burden is thrown upon the plaintiff to prove the consideration. ' The learned Judges after pointing out that the question was not whether the plaintiff had discharged the burden of proving consideration but whether the defendant had discharged the burden of proving want of consideration observed.

'It is one thing to say that the plaintiff has failed to prove a particular consideration for the three hundis ; it is an entirely different thing to say that it was proved that there was no consideration at all for the three hundis. The mere failure to prove consideration on the part of the plaintiff did not establish that the hundis were for accommodation as the defendant alleged, or that the defendant had succeeded in proving that there was no consideration at all for these hundis ..... ... ..... .... ......... ...... ........ .......

In order to determine whether the contrary is proved or not as required by 118, the whole volume of the evidence led before the Court must be considered. Very often important admissions are elicited by counsel for the defendant by cross-examining the plaintiff and those admissions certainly can be availed of by the defendant. But in considering the whole volume of evidence the court must always bear in mind the statutory presumption under Section 118 and also the fact that the burden of proof lies upon the defendant and that burden has got to be discharged by the defendant. How that burden can be discharged or whether it has been discharged is a matter of appreciation of evidence... ..... ... ... ... ...

In our opinion, it is clear that the learned Judges comes to the conclusion that the defendant has failed to prove want of consideration as required by Section 118, and then goes on to say that the plaintiff also failed to prove the particular consideration which he attempted to prove. Now, it must be borne in mind that as soon as the learned Judge had decided that the defendant had failed to prove that the hundis were passed for accommodation it was entirely unnecessary and irrelevant to consider whether the plaintiff had failed to prove consideration or not. It was not necessary for the plaintiff to prove any consideration. The presumption under Section 118 continued in all its rigour. Assuming that the plaintiff did attempt to prove consideration did not in any way relieve the defendant from his obligation in law to establish the contrary of the presumption raised by Section 118, Negotiable Instruments Act ... .... ..... ..... .... ...

The plaintiff has failed to prove that consideration passed and the defendant has also failed to prove that he did not get consideration. Under those circumstances the presumption in favour of the plaintiff continues.'

17. We respectfully agree with what was said by Chagla, C. J. And Bhagwati, J. who we may mention relied on the observations of Suleman, J., in Lal Girwar Lal v. Dau Dayal, air 1935 All 509 the observations of Pal, J., in Ramanimohan v. Suria Kumar Dhar, AIR 1943 Cal 22 and the decision of Bennett and Niamatulla, JJ., in Rammath v. Rama Chandra, AIR 1935 All 154. The learned Judges expressly dissented from the view taken to the contrary by the Lahore High Court.

18. Observations to a similar effect are found in Prem Raj v. Nathu Mal, AIR 1936 Nag 130 ; Barhamdeo Singh v. Kari Singh, AIR 1936 Pat 498 and Awadhbihari Singh v. Sheoshankar, : AIR1955Pat451 .

19. In Venkataraghavulu Chetty v. Sabhapathi Chetty, ( 1911 ) 21 Mad LJ 1013 the learned trial Judge, in a suit on a promissory note, disbelieved the version of the defendant regarding want of consideration. He also disbelieved the plaintiff's account as to what happened and thought that the consideration was something other than that spoken to by the plaintiff in his evidence. He granted a decree in favour of the plaintiff. It was urged in the High Court that the presumption under Section 118 of the Negotiable Instruments Act was rebutted as the plaintiff's version had been disbelieved. Abdur Rahim, J., pointed out that in view of the presumption under Section 118 of the Negotiable Instruments Act it was incumbent the defendant to make out his plea of want of consideration. The effect of the rejection of the defendant's version by the trial Judge was that the defendant had failed to make out his plea of want of consideration. It did not make any difference that the plaintiff deposed to a story which the trial Judge was unable to believe ; it was open to the Judge to say on considering the evidence of both sides that the falsity of the plaintiff's story made the defendant's version of what occurred more probable. But the Judge did not do so. Instead he rejected the defendant's case as false. Abdur Rahim, J. Therefore affirmed the decree of the trial Judge. Sundara Iyer J. was inclined to take a different view but agreed with the conclusion of Abdur Rahim, J. on the ground that the decision of the trial Judge was not vitiated by any error of jurisdiction.

20. In Nrasamma v. Veeraraju AIR 1935 Mad 769 Varadachariar, J., considered at some length the nature of the presumption under Section 118 of Negotiable Instruments Act. He referred to the practice which had developed in England of not referring to the payment of consideration either in the instrument or in the pleading and the idea that came to be embodied in the rule that a bill or note prima facie imported consideration. He also referred to the rule which was recognised in England that it is ' not enough in the plea of want of consideration merely to say that the defendant never had any value or consideration........ .....the plea must go on to aver the circumstances which show that there was no consideration ; 138 ER 565'. Varadachariar, J., then proceeded to state that the expression ' until the contrary is proved ' in Sec. 118 of the Negotiable Instruments Act must also be read in an expanded sense, having regard to the definition of the word ' disproved ' and of the expression ' shall presume ' in Sections 3 and 4 of the Evidence Act. Reading it in that expanded manner the learned Judge held that even in suits on negotiable instruments the debtor could press into service facts and circumstances disclosed by the plaintiff's evidence.

21. In Lakshmanaswami v. Narasimha Rao, AIR 1937 Mad 223 the plaintiff who attempted to prove cash consideration failed to do so. But on the evidence and the admissions of the defendant a different kind of consideration was held up to be proved. It was held by Varadachariar and Mockett, JJ., that the plaintiff's suit need not be dismissed because he failed to prove what be set out to prove. They said, ' We donot think that any principle of law requires us to hold that the suit should necessarily be dismissed in such circumstances. '

22. The two decisions of the Madras High Court in AIR 1935 Mad 769 and AIR 1937 Mad 223 are not inconsistent with the view expressed by us. The learned counsel for the appellant relied on Palaniappa v. Rajagopala, AIR 1928 Mad 773 ; Venkata Reddy v. Nagi Reddy, : AIR1951Mad851 ; Narayana Rao v. Ramachandra Rao, : AIR1959AP370 and Kundanlal v. Custodian, AIR 1961 SC 1316.

23. In AIR 1928 Mad 773 the question was whether there was consideration for a certain mortgage. A major portion of the consideration consisted of payments on two promissory notes. The presumption under Section 118 of the Negotiable Instruments Act was relied on as proof of the receipt of consideration under the promissory notes. The truth of the promissory notes was not admitted and there were circumstances pointing to the fact that the signatures were affixed before the documents were written up. The executant of the promissory notes was asked about 18 years. The plaintiff himself was forced to admit that the recital of consideration in one of the promissory notes was false. It was in those circumstances that it was held that the burden of proof was shifted to the holder of the promissory notes. The learned Judges did not hold that a mere plea that consideration recited in the document was not the true consideration was sufficient to shift the burden of proof. We do not think that this case is of any assistance to the appellant.

24. This decision of Basheer Ahmed Sayeed, J., in Venkata Reddy v. Nagi Reddy, : AIR1951Mad851 proceeded on the assumption that it was decided in the case of AIR 1928 Mad 773 that a mere plea that the consideration recited in the document was not the true consideration was sufficient to shift the burden of proof. We have pointed out that it was not so decided.

25. In : AIR1959AP370 , Krishna Rao, J., observed that the presumption under Section 118 of the Negotiable Instruments Act was not irrebuttable and that the debtor could press into service facts and circumstances disclosed by the plaintiff's evidence. The observations are unexceptionable but they do not help the present appellant.

26. In AIR 1961 SC 1316, Subba Rao, J., pointed out how in the circumstances of a case the presumption under Section 118 of the Negotiable Instruments Act may be rebutted by a presumption, if drawn, under Section 114 of the Evidence Act. What should be noted is that the Court may or may not raise the presumption under Sec. 114 of the Evidence Act depending on the facts and circumstances of the case. In the instant case we donot think that false case of cash consideration put forward by the plaintiffs in O. S. Nos 24 and 28 of 1966 is sufficient to draw the presumption that there was no consideration at all for the promissory notes.

27. The learned counsel for the respondents relied on the decision of two learned single Judges of this Court that of Manohar Pershad, J., in Raghava Reddy v. Sundararami Reddy, ( 1958 ) 2 Andh WR 570 and of Venkateswara Rao, J. In Satyanarayana v. Sreenivasulu, ( 1971 ) 1 APLJ 252 both the learned Judges followed the decision in Tarmahomed v. Tyeb Ebrahaim, ( AIR 1949 Bom 257 ).

28. On a consideration of the facts and circumstances of the case we are of the view that notwithstanding the false case of cash consideration put forward by the plaintiffs in O. S. Nos. 24 and 28 of 1966, the appellant has not succeeded in discharging the burden that there was no consideration for the two promissory notes. We, therefore, confirm the decree passed by the trial Court and dismissed all the appeals with costs.

29. Order accordingly


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