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Seithammarakkath Mammad Vs. Koyommatath Mammad - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 358 of 1954 (M)
Judge
Reported inAIR1957Ker63
ActsEvidence Act, 1872 - Sections 67, 101 to 104 and 114
AppellantSeithammarakkath Mammad
RespondentKoyommatath Mammad
Appellant Advocate A. Achuthan Nambiar, Adv.
Respondent Advocate C.K. Viswanatha Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredRamlakhan Singh v. Gog Singh
Excerpt:
.....note - sections 67, 101 to 104 and 114 of indian evidence act, 1872 - mere fact of admission of thumb impression and signature by maker of promissory note does not absolve plaintiff from duty to prove execution of promissory note and advancing of consideration to maker - making thumb impression and signature on blank paper without stamp cannot amount to admission of execution of promissory note. - - he pleaded that he had sought the good services of the plaintiff to intervene on his behalf with mohammad kunhi examined in the case as dw. for, the admission by the defendant, as to his having affixed his thumb impression as well as signature in a blank paperwithout stamp cannot amount to an admissionas to the execution of the promissory note, ex. the admission by the defendant did..........bottom portion of a half sheet of foolscap paper ana contains not alone the signature but also the thumb impressions of the executant.the plaint averred that the defendant falsely issued ext. bl notice through counsel on 20-6-1949 alleging entrustment with the plaintiff by the defendant of a blank sheet of paper containing the defendant's thumb impression for particular purpose and calling back for its return because the purpose was unfulfilled evidently suggesting that the promissory note was a manipulation and with a view to forestall this suit. the promissory note was filed as ext. al and the suit was laid soon after on 28-6.1949.3. the defendant, by his written statement denied both execution of ext. al and also the receipt of any portion of the consideration. he pleaded that he had.....
Judgment:

Varadaraja Iyengar, J.

1. This Second appeal is by the plaintiff, in a suit on a promissory note which was decreed by the Munsiff but dismissed by the Subordinate Judge in appeal by the defendant.

2. The promissory note in suit purports to be executed on 18-3-1949 by the defendant in favour of the plaintiff or his order and is for a sum of Rs. 500/-. It is recited that Rs. 300/- out of the sum was borrowed on a previous occasion and the balance of Rs. 200/- was a present advance. It is written in the bottom portion of a half sheet of foolscap paper ana contains not alone the signature but also the thumb impressions of the executant.

The plaint averred that the defendant falsely issued Ext. Bl notice through counsel on 20-6-1949 alleging entrustment with the plaintiff by the defendant of a blank sheet of paper containing the defendant's thumb impression for particular purpose and calling back for its return because the purpose was unfulfilled evidently suggesting that the promissory note was a manipulation and with a view to forestall this suit. The promissory note was filed as Ext. Al and the suit was laid soon after on 28-6.1949.

3. The defendant, by his written statement denied both execution of Ext. Al and also the receipt of any portion of the consideration. He pleaded that he had sought the good services of the plaintiff to intervene on his behalf with Mohammad Kunhi examined in the case as Dw. 2, for grant of a lease of immoveable property and had, while he was urgently entraining for Madras, entrusted with the plaintiff a blank half sheet of paper with his thumb impression for being filled up as a Kychit for the purpose, as the plaintiff had desired.

Dw. 2 however refused to accept any such make shift arrangement. So the blank paper remained with the plaintiff, the defendant not having claimed it bock. Subsequently in or about July 1949 the plaintiff fell out with the defendant's family on account of the refusal by the defendant's elder brother to consummate his marriage with the plaintiff's niece. And the plaintiff in his enmity had taken advantage of the existence of the blank sheet with him to fill it up as the promissory note herein.

4. Even though the defence consisted in a denial of execution and consideration as above the issues in the case were framed as if the burden lay entirely with the defendant as follows:--

(1) Whether the suit pronote is not genuine, and

(2) Whether it is not supported by consideration.

The plaintiff examined only himself as Pw. 1 while the defendant on his side examined himself as Dw. 1 and also Dw, 2. On this evidence the Munsiff found both the issues in favour of the plaintiff and decreed the suit while the Subordinate Judge found exactly the contrary and dismissed the suit. Hence this Second Appeal by the plaintiff as abovesaid.

5. During the course of his evidence as D. W. 1, the defendant admitted that the blank paper with the thumb impression which he alleged he had entrusted to the plaintiff, contained his signature also and further that the signature was in the same Ink as the body of the promissory note. This was inconsistent with the points taken by him in Ext. Bl notice and also the written statement.

Laying great store by this discrepancy it was, that the Munsiff found in favour of the genuineness of the promissory note. The learned Subordinate Judge, on the other hand, laid emphasis on the fact that the evidence let in by the plaintiff was too scanty to uphold the execution of Ext. Al by the defendant or the advance of consideration thereunder and commented in this connection on the plaintiff's omission to examine the document-writer who was alleged to have written Ext. Al.

The defendant's admission as to the signature did not really advance the plaintiff's case for it was only a small bit of the tail end thereof that was on the stamp and there was no explanation again as to why, when the defendant was admitted to be literate, his thumb impression was obtained on Ext. Al and the date on the stamp was allowed to be put down by the scribe.

6. Learned Counsel for the plaintiff, special appellant urged before me that the court below had adopted improper procedure in seeking to dispose of the case mainly on basis of burden of proof when both parties had let in all their respective evidence in the case. He also took the point that the burden had been wrongly cast by the lower appellate court on the plaintiff in spite particularly of the defendant's admission in the case as to the thumb impression and the signature and he argued that even otherwise the burden must be deemed to have shifted on to the defendant when the plaintiff formally swore to his case.

It appears to me, however, that the onus,In a case of this type, rests on the plaintiff toprove both the fact of execution and the advanceof consideration. For, the admission by the defendant, as to his having affixed his thumb impression as well as signature in a blank paperwithout stamp cannot amount to an admissionas to the execution of the promissory note, Ex.Al, nor can it enable the plaintiff to go on fromthere to ask for an inference that considerationhas also passed.

Reference may be made in this connection to -- mjeshwar Ball v. Kishun Bali', AIR 1933 Oudh 394 (2) (A), where the plaintiff brought a suit on the basis of a promissory note purporting to have been executed by the defendant and the defendant as here, denied both the execution and theborrowing of money and It was held that it was for the plaintiff to produce evidence on both the issues as to whether the thumb impression of the defendant was obtained by fraud as alleged by the defendant and whether the promissory note was without consideration.

Similarly in 'Pirbhu Dayal v. Tularam', 68 Ind Cas 809: (AIR 1922 All 401 (2) ) (B), where the plaintiff sued relying on a document which the defendant affirmed was only a blank piece 'of paper to which he was asked to affix his signature and thumb impression, it was held that the burden of proof of its execution lay. on the plaintiff.

7. Learned counsel for the appellant referred to -- 'Sahdeo Mauar v. Pulesar Nonia', AIR 1930 Pat 598 (C); and -- 'Dalchand Mulchand v. Hasanbi', AIR 1938 Nag 152 (D), in support of his argument. In the former of these cases the defendant while denying that he had signed or made thumb impression upon any hand note admitted that he had put his thumb impression on a blank piece of paper upon which it was intended that a Kabuliyat should be written out and that that may. be the thumb impression and paper which had been utilised for the hand note in suit.

Ros's J., sitting in single Judge held that it was a clear admission that the hand note on which the suit was brought bore the thumb impression of the defendant and the burden or proof was on the defence to explain how the document bearing the defendant's thumb impression came into existence. But this case is. no authority for the proposition that the plaintiff in such case has not to prove the due execution of the document.

The admission by the defendant did not establish the plaintiff's claim and if there was nothing on the pleadings besides the plaint and the defendant's denial the suit must fail. If may be that the fact that the defendant's signature is on the note is of great evidentiary value and in many cases might be sufficient corroboration of evidence given by the plaintiff himself to establish his case. I might in this connection refer to the Bench case in -- 'Ramlakhan Singh v. Gog Singh', AIR 1931 Pat 219 (E), where Fazl Ali J., delivering the judgment on behalf of the Bench, observed:'

'where the law places the onus on the plaintiff to prove that a document is duly executed, the onus cannot be discharged be merely proving the identity of the thumb impression, but It must be further proved that the thumb impression was given on the document after it had been written out and completed'

and the learned Judge was careful also to say lower down:

'But the fact remains that if the evidence offered by the plaintiff to prove that the document was duly executed, or in other words, that the thumb Impression was given on the document after it had been written out and completed is found to be unreliable, he cannot be deemed to have discharged the onus properly and no onus is necessarily thrown on the defendant merely by reason of the fact that the defendant asserts that the thumb impression was given on a blank piece of paper.'

The later case of AIR 1938 Nag 152 (D), to a Certain extent, no doubt supports the appellant when it says relying on Section 114 of the Evidence Act:

'The mere fact that a document is admitted to bear a certain signature and that it comes from proper custody ought to be enough to raisean Inference that it was signed with the intention of execution.'

But the learned Judges themselves say that the presumption will arise only if nothing else Is known and further that:

'The initial burden of proving execution of a document when it is denied is upon the per- . son alleging execution.'

Again as observed in AIR 1931 Pat 219 (E), at p. 222.

'Section 114 is a permissive and not a mandatory section and the court may, having regard to the circumstances of a particular case, refuse to raise a presumption in that case under that section, although in other cases such a presumption may be properly raised.'

8. It follows therefore that the learned Subordinate Judge was not wrong when he proceeded to dispose of the case on the basis that the plaintiff to succeed must prove both the execution of the promissory note and the passing of consideration thereunder. And having heard learned counsel and also gone through the papers, I do not see any reason to differ from the conclusions of fact arrived at by the learned Subordinate Judge that the plaintiff has not succeed. ed in either.

9. The second appeal fails in the result a'ndis therefore dismissed. ' But in the circumstancesthe parties will bear their costs throughout.


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