1. This is a defendant's second appeal in a money suit.
2. Thakur Ehoor Singh, father of the respondents, instituted a suit against Mst. Bhoori, widow and heir of Pt. Madho Prasad, for recovery of Rs. 2061/6/- on the allegations that the deceased used to obtain loan from the plaintiff, and as a result of accounting on 23rd January, 1945, the deceased acknowledged his indebtedness to the plaintiff at Rs. 1525/-, and agreed to pay the amount within one year, but that if he would not do so he would pay interest at 1 per cent, per annum. It was pleaded that Madho Prasad died, and the property was in the possession of Mst. Bhoori as also one Shyam Sunder alleged to be the adopted son of Madho Prasad, and the suit was instituted against both the defendant.
Shyam Sunder denied his adoption or having anything to do with the property of Madho Prasad. Mat. Bhoori also did not admit the plaintiff's claim. The plaintiff had produced the khata Ex. 1 dated 23rd January, 1945, which was the basis of the suit as also its earlier khata Ex. 2 dated 1st March. 1941, for Rs. 1432/-. Certain letters alleged to have been written by Madho Prasad Exs. 3 to 8 were also produced. The parties led evidences.
The trial Court was of opinion that the signatures on Ex. 1 had been traced from the signatures on Ex. 2, and the khata Ex. 1 was a forgery. An entry of credit of Rs. 20/- on Sawan Budi 10, St. 2000 (15th July 1944) was held to have been interpolated from Sawan Budi 10 St. 2002, corresponding to 3rd August, 1945, which was again taken to be an indication that the khata Ex 1 of 23rd January, 1945, was not in existence, otherwise the amount would have been credited to that account. The trial Court accordingly dismissed the suit.
On appeal the learned District Judge was of opinion that the alleged tracing of the signatures had not been proved by any evidence, and the similarity of the signatures was too slender a data for the Court to come to that conclusion. He held the discrepancy in the Samwat with relation to the deposit of Rs. 20/- as having be n explained by the fact that the entry at the total of credits in Ex. 2 had been proved to bear the signatures of Madho Prasad, and the interpolation was thus only a correction. The learned District Judge set aside the decree of the trial Court end passed a decree in favour of the plaintiff for the amount claimed. The defendant has com? in second appeal.
3. It was urged on behalf of the defendants that the signatures and writing alleged to be of the debtors on Exs. 1 and 2 exactly coincided, and Ex. 1 should be presumed, to be a forgery. It Was urged that the first) appellate Court should not have brushed aside the opinion of the trial Court and that in any case the changing of the year from St. 2002 to St. 2090 in respect of the credit entry of Rs. 20/- proved the subsequent concoction of Ex. 1.
4. I have carefully, gone through the record, and have also inspected the original documents which were kept ready for inspection by the respondents. The words alleged to be in the. Den of the executant Madho Prasad (Madhav Prasad) on Exs. 1 and 2 are not the same, and, therefore, the question of tracing the entire handwriting from Ex. 2 on Ex. 1 does not arise. The trial Court had not the assistance of any handwriting expert nor had any photographs or enlargements thereof taken, and without the assistance of such photographs it could not have been possible for the trial Court to come to the conclusion winch it did. The alleged writing was on a tough paper, and was net translucent. Further some of the writing was on non-judicial stamps, and it is a, matter of surprise how the learned Civil Judge could venture to express an opinion about the signatures and the writing of the executant on Ex. 1 being traced from Ex. 2.
The discrepancy as to Samwat in Ex. 2 with respect to the deposit entry of Rs. 20/- vanishes by looking to Ex. 8 which is a letter alleged to have been written by Madho Prasad on 15th July. 1944, along with the remittance of Rs. 20/-per Pt. Jaseshwar. This letter has been proved to be in the handwriting of Madho Prasad by the plaintiff Bhur Singh. Mst. Bhuri no doubt denied the handwriting to be of Madho Prasad when a question was put to her in cross-examination, but she did not produce any other handwriting of Madho Prasad nor produced the account books which she said the deceased kept in respect of his money transactions.
The deceased, according to Mst. Bhuri, was also a moneylender and kept account books. Mst. Bhuri again said that she had become old and could not see properly. Much more reliable evidence could have been forthcoming in denial of the handwriting of Madho Prasad on Ex. 8. The explanation offered on behalf of the plaintiff was that the Hindi date corresponding to 15th July, 1844, was Sawan Budi 10 St. 2001 Vikrami, but as the plaintiff thought of putting the Raj Samwat it should have been Sawan Budi 10 St. 2000 of the Jaipur Raj. By some mistake the Samwat was mentioned as 2002, and, therefore, it was corrected to St. 2000.
5. Again, this credit entry could not have been fictitious for before making up the accounts of Ex. 2 and carrying the balance on to Ex. 1, there was the total of the credit entries made on which the signatures of Madho Prasad were also taken. These were Proved by Cyan Singh. The first appellate Court has rightly rejected the argument of the appellant that the signatures on Ex. 1 had been traced from the signatures on Ex. 2 for the reasons aforesaid.
6. It was next contended that the suit was against an heir of the deceased, and, therefore, the plaintiff should have proved actual money having been borrowed by Madho Prasad, and that no liability can be imposed upon the appellant by mere production of the Khatas Exs. 1 and 2, which only recited the indebtedness of Pt. Madho Prasad. The argument is that while proof of the execution of a khata by the debtor may throw the burden of proof about the incorrectness of the recitals on the debtor, the same could not be said when the suit was against an heir of the executant. There is no force in this argument.
An heir of the deceased executant is in no better position than the executant himself. As observed by their Lordships of the Privy Council in Intishan All v. Jamna Prasad, AIR 1922 PC 56 at D. 58 (A), 'the burden is on him and on people claiming under him to prove that what apparently happened did not happen.' In Raghavendra Rao v. Venkatasami Naicken, AIR 1930 Mad 251 (B). Ramesam J. observed:
'If the suit is between the mortgagee and the mortgagor only and the mortgagor admits the document, the onus of proving want of consideration is on him but if he does not admit the execution of the document and denies it and therefore denies the whole transaction the burden of proving execution and the passing of consideration are both on the plaintiff mortgagee. Generally he discharges his burden by proving execution only and exhibiting the document containing the admission by the defendant of having received consideration. The moment such a document is proved and exhibited, it is for the defendant to rebut the presumption arising out of the recitals in it... .But suppose that the original mortgagor died leaving, let us say an infant heir who knows nothing about the original transaction and a suit is brought against the infant heir. Naturally he denies knowledge of the transaction and puts the plaintiff to the proof of the execution and the passing of consideration. The burden is of course on the plaintiff to prove both. But suppose the plaintiff proves execution and exhibits the document containing the recitals as to receipts of the consideration by the mortgagor whose heir the defendant is, has he not made out a prima facie case as to the passing of consideration also? I think he has done so and unless in the course of proving execution very suspicious circumstances are elicited in the cross-examination of the plaintiff's witnesses the moment the execution is proved, it is for the defendant to meet the plaintiff's case made out by the putting in of the document in evidence containing the recitals.'
I am in complete agreement with the aforesaid observations.
7. It was next contended that the khatas were only acknowledgments of past debts, and, therefore, could not prove the debt itself and the plaintiff should have proved the entire dealings. There is no force in this argument. In Ex. 2, after reciting the indebtedness to be Rs. 1432/- the deceased Madho Prasad agreed to pay that amount by instalments of Rs. 250/- p. a. and further agreed to pay interest at 12 per cent p.a. on the instalments remaining unpaid. The document, therefore, became a bond, the consideration being the past indebtedness. Interest was added on the instalments remaining unpaid, while the amount deposited was credited and the balance was Rs. 1525/-.
Ex. 1 purports to recite the indebtedness at this amount, and further the executant Madho Prasad recorded his agreement to pay this amount within one year, and in default to pay further interest at 12 per cent p.a. A past debt even if barred by time is a good consideration for a promise to pay under Section 25 of the Contract Act.Under Section 63 a fresh contract is a good consideration for dispensing with the performance of a previous contract. 'Consideration' has been defined in Section 2, Clause (d) of the Contract Act as follows:
'When, at the desire of the promisor, the promisee or any other person; has done or abstained from doing, or does or abstains from doing or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.''
As stated above, a fresh contract to pay an amount due would be a good consideration even if the previous dues were barred by limitation. If the previous debt is within time, a fresh contract would amount to a notation of the contract. In the present case, the terms have certainly been varied. Again, by executing a new contract the creditor forbears to sue him on the old contract, and that forbearance again becomes a good consideration.
8. There is no force in this appeal, and itis accordingly dismissed with costs.