Patna High Court
Ramadhin Singh vs Siaram Singh And Anr. on 5 April, 1956
Equivalent citations: AIR1957PAT64, AIR 1957 PATNA 64
JUDGMENT Kanhaiya Singh, J.
1. This appeal is by the plaintiff from a decision of the Subordinate Judge dated 29-11-1950, reversing the decision of the Munsif dated 16-6-1950. The suit giving rise to the present appeal was founded upon handnote alleged to have been executed by the defendant in favour of the Plaintiff for a consideration of Rs. 1275/-. The defence was a total denial of the allegations made by the plaintiff. The defendant denied that he had borrowed any sum from the plaintiff. As to the document purporting to bear his thumb, mark, the defendant offered an explanation of the circumstances in which he happened to place his thumb mark on it According to him, there was a panchaiti some years before the institution of the suit in which his thumb mark was taken on a blank piece of paper which was subsequently utilised by the plaintiff for the handnote sued upon. In short, he denied both the execution of the hand-note and the passing of consideration thereunder.
2. The learned Munsif believed the evidence of the plaintiff and decreed the suit. On appeal, the learned Subordinate Judge in a well reasoned and well-considered judgment upset the finding of the learned Munsif and held that the handnote was not genuine and for consideration. On this finding, he allowed the appeal and dismissed the plaintiff's suit with costs.
3. On the findings of the appellate Court, this appeal is concluded by findings of fact. Mr. K. K. Sinha appearing for the appellant, however, argued, relying upon a decision 'of the Supreme Court in _ the case of Sarju Pershad v. Jwaleshwari, AIR 1951 SC 120 (A), that the 'appellate Court bad not con sidered some of the reasons advanced by the learn ed Munsif for discarding the defence and accept ing the plaintiff's case. He pointed out that the appellate Court should not, in absence of compell ing reasons, discard the appreciation of the Mun sif of the oral evidence who had the opportunity to watch the demeanour of the witnesses and judge their credibility.
In this case, however, I find that the learned Subordinate Judge has considered the case from all aspects. All the circumstances which were pointed out to me relate mainly to the defence set up by the defendant. The learned Munsif on a consideration of those circumstances held that the defence propounded by the defendant was not true. Even assuming, though riot affirming, that this is true, the plaintiff cannot obviously advantage himself fay the weakness of the defence. The plaintiff's case must stand or fall upon the evidence adduced by him. The learned Subordinate Judge has carefully considered the evidence of the plaintiff and has given cogent reasons for rejecting it as untrustworthy.
The grievance of Mr.K. K. Sinha is that in appreciating the evidence of the plaintiff's witnesses, the learned Subordinate Judge was greatly influenced by the defence which, according to the appellate Court's observation, was correct. I do not think that this is correct. The learned Sub-ordinate Judge has taken care to consic'.er the evidence of both the sides separately, and in judging the credibility or otherwise of the witnesses examined by the plaintiff, the learned Subordinate Judge, has not at all taken into consideration the demerits of the "defence witnesses. He has given cogent reasons for not relying upon the testimony of the appellant's witness. He has also considered the facts which influenced the learned Munsif to come to a contrary decision.
4. Even with regard to the defence, I find, rightly or wrongly the learned Subordinate Judge has taken a view different from the view taken by the learned Munsif on all the points which were mooted before him. It was contended that there was one vital circumstance in the defence which was sufficient to demolish the case set up by the defendant. It is this. According to the evidence of D. W. 3, the document which, according to the defendant, was converted into the .handnote, contains the thumb marks of both the defendant and the opposite party before the panchaiti.
The present handnote, however, contains only the thumb mark of the defendant. This circumstance greatly weighed with the learned Munsif and he found that the presence of two thumb marks goes a long way to show that the defence set up by the defendant was not correct. This aspect has also been considered by the appellate Court, and the appellate Court impliedly disbelieved the evidence of D. W. 3 and held that the taking of the thumb marks of both the parties by the panches on the same paper would defeat the very object for which the thumb impressions of the two contesting parties, were taken by the panches. In my opinion, the observations of the learned Subordinate Judge cannot be said to be absolutely wrong.
Another circumstance pointed out was that the panchaiti in which the defendant allegd to have put his thumb mark on a blank paper was con-vened some 18 years before the institution of the suit, and it was highly improbable that that paper had been deliberately retained for so many years to fabricate a handnote on false grounds. In my opinion, there is not such inherent improbability in this circumstance as to falsify the entire defence While considering the evidence of both parties it is not incumbent upon. the appellate Court to con-sider each and every circumstances separately which has been considered by the learned Munsif.
If the appellate Court has applied its mind, to the evidence properly and has given reasons which are cogent and which can be sustained on the evi-
dence, the judgment of the appellate Court can-
not be assailed simply because some of the reasons given by the learned Munsif either have not been considered or have escaped the notice of the ap-
pellate-Court, especially when, even if those reasons stood, there will be no difference in the decision.
In my opinion, the. judgment of the appellate Court is not vitiated by the alleged non-consideration of the circumstances before the Munsif so as, to taring this case within the purview of the decision of the Supreme Court above referred to.
5. It was next contended that the learned Subordinate Judge wrongly placed the onus upon the plaintiff to prove both the execution and the payment of the consideration. It was pointed out that the handnote sued upon bears the thumb mark of the defendant. After the expert's opinion, there is now no controversy that the thumb mark appearing on the handnote is in fact the thumb mark of the defendant. The question is whether the existence of the thumb mark on the paper is sufficient to shift the onus on the defendant.
The execution of a document implies intelligent and conscious appreciation of the contents and the facts connected with the document, and where the thumb mark or signature is appended to a piece of paper, which is blank and which does not contain the necessary contents of the transaction, there is, properly speaking, no execution of a document. In similar circumstances, it was held by a Division Bench of this Court in the case of Chulhai Lal Dass v. Kuldip Singh, 12 Pat LT 231: (AIR 1931 Pat 266) (B) that when the defendant admitted only that he had put a thumb mark and signature on a document which was not the handnote sued upon, he did not admit the execution of the handnote in suit and therefore the onus of proving that the particular handnote, the basis of the suit, was (July executed by the defendant was upon the shoulders of the plaintiff.
On the basis of this authority, the onus was clearly upon the plaintiff. The appellant, however, relied upon the decision of a single Judge of this Court in the case of Sahdeo Mauar v. Pulesar No. nia, 11 Pat LT 606: (AIR 1930 Pat 598) (C). In this case, it was no doubt,laid down that where in a suit on a handnote, the defendant admitted that he had put his thumb mark on a blank piece of paper upon which, he alleged, it was intended that a Kabuliyat should be written out and possibly that paper had been utilised for the handnote the burden of proof was on the defence to explain how the handnote bearing the defendant's thumb im pression came into existence.
In my opinion, this decision is not a good authority in face of the Division Bench decision of this Court above referred to. Both the cases came up for consideration in the case of Hridaysingh v. Kailash Singh, AIR 1940 Pat 377 (D). That case is distin-guishable from the present case as well as from the cases of 12 Pat LT 231 : (AIR 1931 Pat 266) (B) & 11 Pat LT 606 (AIR 1930 Pat 598) (C). In that case the execution portion of the handnote clearly indicated that the executor was appending his signature to a handnote and he also admitted the acceptance of the consideration. On these facts, their Lordships held that the onus was not on the plaintiff but on the defendant.
They also approvingly referred to the case of 12 Pat LT 231 : (AIR 1931 Pat 266) (B). They also referred to the case of 11 Pat LT 606 : (AIR 1931 Pat 598) (C), but did not in clear words express whether or not that decision was still a good law in face of the Division Bench decision in the case of 12 Pat LT 231 : (AIR 1931 Pat 266) (B). On the facts of that case, it was not necessary for their Lordships to express any definite opinion. So far as. the present case is concerned, I think, it comes clearly within the four corners of the case reported in 12 Pat LT 231 : (AIR 1931 Pat 266) (B) and the case reported in 11 Pat LT 606 : (AIR 1930 Pat 598) (C), is, as stated above no longer a good law.
In my opinion, therefore, the learned Subordinate Judge rightly placed the onus upon the plaintiff to prove both the execution of the hand-note and the payment of the consideration. At all events, the question of onus in this case is of no practical value at all. Both parties have adduced evidence and the learned Subordinate Judge Was careful enough to examine and discuss the evidence of both sides independent of the question of onus, and on a careful consideration of the evidence he found that the plaintiff's case was not true. Therefore, the judgment of the appellate Court cannot be assailed on that ground.
6. In my opinion, the case has been rightly decided, and there is no merit in this appeal which is accordingly dismissed with costs.