Madras High Court
Visuwasam vs V.Balakrishnan on 29 November, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/11/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.(MD)No.1046 of 2006 and M.P.(MD)No.1 of 2006 Visuwasam ... Appellant/Respondent/Defendant Vs. V.Balakrishnan ... Respondent/Appellant/Plaintiff Prayer Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree passed in A.S.No.74 of 2005 dated 27.03.2006, on the file of the Learned I Additional Subordinate Judge, Nagercoil in reversing the Judgment and Decree in O.S.No.311 of 2004 dated 26.10.2004, on the file of the Learned Principal District Munsif, Nagercoil. !For Appellant ... Mr.K.P.Narayanakumar ^For Respondent ... Mr.N.Subramanian *** :JUDGMENT
The Appellant/Defendant has preferred this Second Appeal as against the Judgment and Decree dated 27.03.2006 in A.S.No.74 of 2005 passed by the Learned I Additional Subordinate Judge, Nagercoil in reversing the Judgment and Decree dated 26.10.2004 in O.S.No.311 of 2004 passed by the Learned Principal District Munsif, Nagercoil.
2. The Plaint scenario:
The Appellant/Defendant borrowed a sum of Rs.12,000/- for his family necessities from the Respondent/Plaintiff at Mathusoothanapuram on 16.06.1997 executing the plaint mortgage deed favouring the Respondent/Plaintiff in respect of the suit schedule property. The mortgage deed was registered as document No.1480/1997 of Edalakudy Sub Registrar's Office on 17.06.1997. The Appellant/Defendant shall pay interest at 24% p.a. every month according to the terms of the mortgage deed and shall repay the principal sum of Rs.12,000/- to the Respondent/Plaintiff on demand with interest accrued thereunder.
(ii) The Appellant/Defendant has not paid any interest due as per the terms of the mortgage deed. The Respondent/Plaintiff repeatedly made a demand on the Appellant/Defendant to repay the principal sum borrowed with interest accrued thereunder. The demands proved in vain.
(iii) The Respondent/Plaintiff although is entitled to realise interest at 24% p.a., he restricts his claim to 12% interest per annum. Therefore, the Respondent/Plaintiff is entitled to realise a sum of Rs.16,260/- from the Appellant/Defendant as per the statement of account furnished herein.
Details of Mortgage
1. Name of the mortgagor : V.Visuvasam (the Defendant) S/o Velandi Nadar.
2. Name of mortgagee : V.Balakrishnan (Plaintiff)
3. Date of mortgage : 16.06.1997 (registered on 17.06.97)
4. Sum advanced : Rs.12,000/-
5. Rate of interest : 24% p.a. (The Plaintiff however restricts his claim to 12% p.a.)
6. Property mortgaged : Scheduled property
7. Amount due from the mortgagor/Defendant as on 31.05.2000 : Rs.16,260/-
Statement of Accounts:
1. Principal sum borrowed on 16.06.1997 : Rs.12,000/-
2. Mortgage loan interest @ 12% p.a. as restricted by the Plaintiff due from 16.06.1997 to 31.05.2000 : Rs. 4,260/-
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Total amount due from the mortgagor/Defendant as on 31.05.2000 : Rs.16,200/-
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(iv) The Respondent/Plaintiff issued a suit notice to be sent to the Appellant/Defendant on 22.02.2000 calling upon him to repay the borrowed amount with accrued interest. The suit notice was returned with an endorsement "Intimation given - not claimed". The Respondent/Plaintiff's last demand also proved futile. Therefore, the Respondent/Plaintiff filed the suit for realisation of a sum of Rs.16,260/- due from the Appellant/Defendant.
(v) The Respondent/Plaintiff in the suit had prayed for a decree to be passed directing the Appellant/Defendant to pay to the Respondent/Plaintiff a sum of Rs.16,260/- with future interest at 12% p.a. on the principal amount of Rs.12,000/- from the date of suit till the date of realisation of entire amount, failing which ordering the sale of the schedule property through Court and order the payment of the decretal amount from and out of the sale proceeds.
(vi) The Respondent/Plaintiff also sought a relief that in case, if the sale proceeds of the plaint schedule property were not sufficient for the payment of the said amount, the Respondent/Plaintiff be given liberty and right to proceed against the Appellant/Defendant personally.
3. The Written Statement Averments:
The suit is not maintainable. There is no cause of action for the Respondent/Plaintiff to file the suit. The Appellant/Defendant never borrowed any amount from the Respondent/Plaintiff and never executed any mortgage deed. As such, there arose no occasion for repayment of the principal sum and interest etc.
(ii) The Respondent/Plaintiff is the brother of the Appellant/Defendant's younger brother's wife and they are closely related to each other. The Appellant/Defendant reposed explicit confidence on the Respondent/Plaintiff.
Taking advantage of the said confidence, the Respondent/Plaintiff took the Appellant/Defendant to the Sub Register's Office, Edalakudy and obtained the signature and thumb impression fraudulently stating as if he was the witness to the document obtained from one Ravi Ashoken son of Kolappa Pillai, Kakkumoor. The said fraud was concealed by the Respondent/Plaintiff. The Appellant/Defendant came to know about the fraud only after he received the summons.
(iii) The Statement of Accounts was wrong and misleading. The property mentioned in the plaint schedule was the only property of the Appellant/Defendant. The residential house of the Appellant/Defendant was available in the said property. The land was appurtenant to the house occupied by the Appellant/Defendant, his wife and six daughters, one among them was a physically handicapped person.
(iv) The alleged mortgage deed was abinitio void and unenforceable in law. The Respondent/Plaintiff was not entitled to get any relief.
(4) Before the trial Court, in the main suit 1 to 5 issues have been framed for adjudication. On behalf of the Respondent/Plaintiff, witness P.W.1 has been examined and Ex.A.1 to A.4 have been marked. On behalf of the Appellant/Defendant's side, two witnesses D.W.1 and D.W.2 have been examined and no documents have been marked.
(5) The trial Court, on an appreciation of oral and documentary evidence available on record, in the main suit has come to the conclusion that "D.W.2's evidence disproves execution of the document. Another circumstantial evidence is regarding the Plaintiff's income, which is very low, insufficient even for supporting his own family. So it is not believable that he was in possession of Rs.12,000/- as early as in 1997 or that he lent the same to the Defendant" and consequently held that the Respondent/Plaintiff is not entitled to any amount from the Appellant/Defendant on the basis of Ex.A.1 mortgage deed and dismissed the suit, directing the parties to bear their own costs.
(6) Being dissatisfied with the Judgment and Decree of the trial Court in O.S.No.311 of 2000, dated 26.10.2004, the Respondent/Plaintiff filed A.S.No.74 of 2005, on the file of the Learned I Additional Subordinate Judge, Nagercoil as an aggrieved person.
(7) The First Appellate Court viz., the Learned I Additional Subordinate Judge, Nagercoil while delivering the Judgment in A.S.No.74 of 2005, dated 27.03.2006 has among other things observed that "D.W.1 has not established that the suit document has been obtained by deceiving him and further opined that since the Appellant/Defendant has admitted his signature in the mortgage deed, there is no need to prove the said document through other witnesses and resultantly held that Ex.A.1 has been executed by the Appellant/Defendant and granted the relief in favour of the Respondent/Plaintiff, as prayed for in the plaint, thereby setting aside the Judgment and Decree of the trial Court. Accordingly, the First Appellate Court allowed the appeal with costs.
(8) Feeling aggrieved against the Judgment and Decree of the First Appellate Court in A.S.No.74 of 2005, dated 27.03.2006, the Appellant/Defendant as an aggrieved person has preferred this instant Second Appeal before this Court.
(9) At the time of the admission of the Second Appeal, this Court has framed the following Substantial Questions of Law for determination:
"I. Whether the 1st Appellate Court is correct by shifting the burden of proof over the Defendant?
II. Whether the 1st Additional Sub Judge, Nagercoil is correct in allowing the Appeal on the sole ground of the admitted signature in Exhibit A.1. So, if the signature was admitted the genuineness of the contents of the document can be accepted even though the same has not been specifically proved?
III. Whether the 1st Appellate Court is wrong without considering the evidence of the attesting witnesses of Exhibit A.1 on the ground that the attesting witnesses is known to Defendant?"
10. The Contentions, Discussions and Finding on the Substantial Questions of Law I to III:
The Learned Counsel for the Appellant/Defendant submits that the First Appellate Court committed an error in not considering the version of the attesting witness which categorically proves the case of the Appellant/Defendant and that the First Appellate Court failed to consider that the Appellant/Defendant has proved burden of proof and that the Respondent/Plaintiff has the onus to prove his case.
(ii) The Learned Counsel for the Appellant/Defendant projects a plea that the mere signature in a document does not mean the correctness in every statement thereunder.
(iii) Advancing his arguments, it is the submission of the Learned Counsel for the Appellant/Defendant that the First Appellate Court has failed to consider the admitted fact by the Respondent/Plaintiff that he is not possessing the financial status to lend money.
(iv) According to the Appellant/Defendant, Ex.A.1 Mortgage Deed was brought into existence by misrepresentation and fraud and further, the same was not legally proved before the Court of Law.
(v) The Learned Counsel for the Appellant/Defendant submits that the Respondent/Plaintiff has not examined other attesting witnesses to establish his case, but that has not been taken into account by the First Appellate Court, which resulted in serious miscarriage of justice.
(vi) The Learned Counsel for the Appellant/Defendant cites the decision of this Court K.Kuppuswami Pillai V. K.Natarajan and another reported in 1993(2) L.W. 587, wherein it is observed and held as hereunder:
"It is well settled that the proof of the genuineness of a document and is by proof of the authorship of the document is the proof of a fact, like that of any other fact. Courts in India have, for the said reason, allowed evidence relating to the proof of the genuineness of a document to be either direct or circumstantial. Such evidence may consist of direct evidence of a person who saw the document being written or the signature being affixed or may be by the proof of the hand-writing of the contents or of the signature by one of the modes provided in Sections 5 and 47 of the Indian Evidence Act. Such evidence may also be internal evidence, afforded by the contents of the document.
If a document is alleged to be signed by any person, the signature is proved by examining that person. If a document is alleged to have been written wholly or in part by a person, such a hand-writing or so much of the document, as is alleged to be in that person's handwriting is proved by examining that person.
A glance at the language used in S.67 of the Indian Evidence Act also supports the view that the proof of the document by proving the signature of the first-defendant herein cannot extend to the proof of the genuineness of the contents thereof, for, the contents of Ex.A.4 are in the hand-writing of somebody else. In a case like one in hand, when signature is found to have been proved in accordance with law, but the genuineness of the contents are in dispute it is all the more necessary that the author or the scribe of the contents is examined, so that opportunity is afforded to the person, who disputed the genuineness of the contents to elicit from the author or the scribe, informations which would show one way or the other as to the genuineness thereof."
(vii) He also seeks in aid of the decision Yadav Ram V. Laxman Singh Bisht reported in AIR 1978 ALLAHABAD 123, wherein it is observed and held as follows:
Whether a transaction is sham or fictitious and not real may be proved by inferences which may reasonably be drawn from the intrinsic evidence respecting the transaction itself or from extrinsic circumstances surrounding the transaction.
Although the execution of the document in question had been admitted by the defendant, he had made a consistent statement in the court explaining the circumstances under which the same was executed. He pointed out that as over Rs.33,000/- were due to the defendant firm and the plaintiff had not paid the same, the defendant pressed upon the plaintiff for the payment of the amount. It was then that the plaintiff gave the truck to him. The defendant had, however, agreed to return the truck to the plaintiff in case the sum of Rs. 18,000/-, which was adjusted towards the old dues had been paid by the plaintiff to the defendant. The agreement was thus sham as the same was executed by the parties with the common intention that the said document was not to create the legal rights and obligations which is ostensibly appeared to create. The evidence of the defendant on the question that the truck was not taken by him on hire far outweighed the evidence of the plaintiffs credibility and the trial court was wrong in accepting the evidence of the plaintiff and granting a decree for return of the truck."
vi(ii) The Learned Counsel for the Appellant/Defendant invites the attention of this Court to the decision Heirs Kantilal Purshottamdas Patel V. Dahiben Jagdish Rathod reported in AIR 2003 GUJARAT at page 83, at page 85 and 86, wherein in paragraph 9 it is observed and held as follows:
9. The plaintiff, Dahiben has also deposed that she was working in a pre-primary school and was getting Rs. 90/-, per month. In support of this contention also no documentary evidence is produced nor any person from such pre-primary school is examined in support of her case. It is also the case of the plaintiff that she was having rental amount of Rs. 160/-, per month from four tenants, to which also no documentary evidence is produced, nor any attempt is made to substantiate its case by examining any tenant. The learned first appellate Judge while appreciating the deposition of the plaintiff is pleased to observe that :
.. .. She has not been able to prove her say by documentary evidence, but only on that ground, it cannot be discarded, because her positive evidence is not disproved in any way by the defendants. .. .."
The observations of the learned first appellate Judge are unwarranted, inasmuch as the matters, which were pleaded by the plaintiff were required to be proved by the plaintiff by leading necessary documentary evidence, when the same were controverted by the defendants. The defendants having controverted the case of the plaintiff which the plaintiff had put forward a positive case, it could not have been negatively disproved by the defendants. It can only be positively proved by the plaintiffs. Thus, the observations of the learned first appellate Judge are not only unwarranted, but are misdirected. The learned first appellate Judge has then proceeded further to state that, ........... Continuous absence of her husband and the peculiar domestic circumstances must have compelled to run her house with difficulty and naturally, she could not be in possession of such proofs and it cannot be insisted that she must be able to prove all these things only by a documentary evidence, because only the housewives can know the real income of the property and nobody else and there must be a limit to the nature of proof required in such circumstances. ......"
Further in the aforesaid decision at page 86 in paragraphs 12 and 15, it is observed and held thus:
12. In the present case this proposition of law is applicable in full force because the husband of the plaintiff-Dahiben had executed a registered sale deed and the plaintiff herself is witness to that document. She has come forward to contend that there was no legal necessity for the husband to dispose of the property. The plaintiff has not supported her case with documentary evidence on any point, which could have been done, if she had so chosen and in the alternative at least she could have examined a supporting witness. The recitals in the document assumes greater importance and cannot be lightly set aside in such circumstances. On perusal of the document at Exh. 22 there are clear recitals about the 'legal necessity' and there is no reason to disbelieve those recitals, moreso when the plaintiff is also not able to render any explanation as to why did she not take any action from 1972 to 1976. There is no reason why the plaintiff could have kept 'quite' on such an important issue. She is claiming maintenance from the property in question, she is claiming share of minor children in the property, she is praying for declaring the sale transaction to be invalid on account of there being no authority with the husband to sell that property.
15. In view of the aforesaid discussion it is held that the property was ancestral and the deceased had no absolute right to dispose of the ancestral property and as held by the learned first appellate Judge, the deceased had a limited right to dispose of the property only to the extent of his own share only but as it is on record of the case that besides the property under the registered sale deed, Exh. 22 admeasuring 1175 sq.ft. (109.28 sq.mts.) approximately, the plaintiff had 5000 sq.ft. of land also which is also an ancestral property, the total comes to 6175 sq.ft. in which the deceased had 1/5th share, which will be more than 1200 sq.ft. in any case; that being so, as the property sold is 1175 sq.ft., the sale in question cannot be invalidated on simple calculation.
(ix) Apart from the above decisions, the Learned Counsel for the Appellant/Defendant relies on the decisions of the Honourable Supreme Court
(a) Gurdial Singh and Others V. Raj Kumar Aneja and Others reported in 2002 SAR (Civil) at page 235 at special page 238 wherein in paragraph 11, it is laid down as follows:
"It is true that in spite of the availability of a registered Deed of Lease executed between owners and Goyal, the occupants are not debarred from taking a plea that the transaction between owners and Goyal was not what it apparently appears to be just by reading of the Lease Deed. The occupants, by raising a plea which they have taken in the written statements, are not proposing to put in issue and let in oral evidence of the terms of the Lease Deed. They are also not raising a plea or adducing oral evidence for the purpose of contradicting varying, adding to or subtracting from the terms of the Lease Deed. They are not parties to the Lease Deed. Therefore, Sections 91 and 92 of the Evidence Act, 1872 are not attracted. The occupants are impeaching the outward validity of Lease Deed by submitting that what has been described on paper is not the real intention of the parties to do; the Lease Deed and the transaction spelled out by it was a sham or fictitious transaction not intended to be acted upon rather intended to overcome or avoid the effect of Rent Control Legislation. It is permissible to take such a plea and adduce evidence to substantiate the same. The plea can be taken though the onus would lay on the shoulders of the party taking such a plea. To discharge the onus, direct evidence may or may not be available and it would be permissible to draw an inference from tell-tale circumstances. However, the inference to be drawn from the circumstances should be an irresistible one and not merely a matter of conjectures and surmises.
(b) Kumar Harish Chandra Singh Deo and another V. Bansidhar Mohanty and Others reported in AIR 1965 SUPREME COURT 1738, the Honourable Supreme Court has held as follows:
"S. 59, Transfer of Property Act did not debar the lender of money from attesting the deed. So also the definition of the word "attested" in S. 3 of the T. P. Act which is similar to the one contained in the Succession Act, did not preclude in terms the lender of money from attesting a mortgage deed under which the money was lent.
The object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. No doubt neither the definition of 'attested' nor S. 59 of the Transfer of Property Act debars a party to a mortgage deed from attesting it. However, the law requires that the testimony of parties to a document cannot dispense with the necessity of examining at least one attesting witness to prove the execution of the deed. Inferentially therefore it debars a party from attesting a document which is required by law to be attested. Where, however, a person is not a party to the deed there is no prohibition in law to the proof of the execution of the document by that person. A distinction has to be drawn in between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the transaction. 14 Cal WN 1046 and ILR 37 Cal 525 and AIR 1954 Mad 126 and (1881) 7 QBD 516. Distinguished. 12 Ind Cas 531 (Bom) and AIR 1931 Oudh 285 (FB) Rel.on.
(x) Contending contra, the Learned Counsel for the Respondent/Plaintiff submits that the First Appellate Court has rightly reversed the Judgment and Decree of the trial Court in O.S.No.311 of 2004, dated 26.10.2004 and further it has come to a right conclusion in holding that Ex.A.1 Mortgage Deed dated 16.06.1997 was executed by the Appellant/Defendant after receiving a sum of Rs.12,000/- on 16.06.1997 and rightly decreed the suit by allowing the appeal and the same need not be disturbed by this Court at this distance point of time.
(xi) The Learned Counsel for the Respondent/Plaintiff cites the decisions of this Court (1) Kanagambaram Ammal V. Kakammal and Five Others reported in 2004-4-L.W. at page 408, wherein it is observed and held as follows:
"Section 101 of the Indian Evidence Act commands, how the burden of proof should be discharged. Section 102 gives guideline on whom burden of proof lies. In this case it is seen from the written statement filed by the second defendant, the execution of the mortgage deed is admitted. The burden is upon the defendants, especially upon the second defendant, who is a party to Ex.A.1, to prove that mortgage came into existence, under the circumstances stated in the written statement, that too, without any consideration, though there are some recitals in the deed, regarding the passing of consideration. In view of the admitted position the execution of Ex.A.1 is admitted, in our considered opinion, the oral evidence of P.W.s 1 and 2 supported by the recitals in the registered document viz., Ex.A.1, to which some of the defendants are parties, are sufficient to discharge the initial burden, thereby shifting the burden upon the defendants, to disprove the passing of consideration, or to disprove the recitals contained in Ex.A.1, thereby to establish the fact, if it is a fact, that Ex.A.1 is not supported by consideration. In a mortgage deed, if there are recitals, that the mortgage money was given as loan to the mortgagor, either on that date, or previous to that date, affirming that the mortgagor received the amount, then the burden is on the mortgagor to prove, that no consideration was in fact paid."
(2) Selvi and Two Others V. Gomathy Ammal reported in 2008(3) TLNJ 403 (Civil), wherein it is held that "when the attesting witness has seen the executant signing the document, it is sufficient and he need not prove the contents of the document."
(3) Maria Stella and Others V. T.Joseph Catherine and Others reported in (2002)3 M.L.J. 111 and 112, wherein it is held as follows:
"If the attesting witness is not available and even available if he is not able to recollect the facts, under Sec.71 of the Indian Evidence Act, the propounder can prove the execution of the Will by any other evidence that may be available.
it is clear that it is not necessary to give positive evidence to prove that the testatrix did see the attesting witnesses put their signatures or that attesting witnesses saw the testatrix sign the document. Where there is proof of signature, everything else is implied till the contrary is proved. In the absence of witnesses who are either dead or cannot be brought to Court or cannot recollect the facts, the secondary evidence is permitted. Since the Will and codicil, viz., Exs.A-1 and A-2 are registered, it is some evidence of its execution by the person by whom it purports to have been executed."
(xii) It is the evidence of P.W.1 (the Respondent/Plaintiff) that he is doing a coolie work and that the Appellant/Defendant is also a coolie and that the Appellant/Defendant is his near relative and that it is correct to state that he has no means to lend a loan amount on interest an it is incorrect to state that he has created Ex.A.1 Mortgage Deed.
(xiii) The evidence of P.W.1 is also to the effect that is incorrect to state that based on Ex.A.1 Mortgage Deed, he cannot recover any amount from the Appellant/Defendant and it is incorrect to state that he has deceived the Appellant/Defendant and obtained his signature and that it is not correct to state that he has no means to lend money to the Appellant/Defendant.
(xiv) P.W.1 (in his cross examination) has deposed that he has taken a chit from Chandrasekar for which he has no document and it is incorrect to state that he is deposing falsely that he has been keeping the money from and out of his chit transaction.
(xv) D.W.1 (the Appellant/Defendant) in his evidence has deposed that he has good confidence on the Respondent/Plaintiff and the Respondent/Plaintiff has taken him to the Sub Registrar's Office, Edalakudy and obtained the signature and thumb impression by informing him that he is to sign as a witness in a document to be obtained from one Ravi Ashoken son of Kolappa Pillai, Kakkummor and the Respondent/Plaintiff along with him brought Dharmakan, son of Swamidoss and obtained his signature and thumb impression in many typed documents and the Respondent/Plaintiff, Dharmakan and Ravi Ashoken signed in the document and from the Respondent/Plaintiff either on the said date or on the different date, he has not borrowed any amount.
(xvi) D.W.1 in his further evidence has deposed that it is a cock and bull story to state that he received a sum of Rs.12,000/- from the Respondent/Plaintiff on loan and agreed to pay interest at 24% p.a. etc. (xvii) D.W.2 in his evidence has deposed that he went along with the Appellant/Defendant and the Respondent/Plaintiff in an auto and that the Respondent/Plaintiff has come in an auto at about 10.00a.m. approximately and they have gone to Edalakudi Sub Registrar's Office and by bringing a document, he informed, one witness signature has to be affixed and himself, the Appellant/Defendant and another person affixed the signature and himself and the Appellant/Defendant do not know what have been written in the said document and no money has been paid to the Appellant/Defendant and to himself.
(xviii) D.W.2 in his cross examination had deposed that he and the Appellant/Defendant affixed the signature before the Sub Registrar and he does not know the other person who signed as a witness. Further, it is correct to state that he has signed as a witness and he has not seen the Appellant/Defendant affixing his thumb impression.
(xix) The Learned Counsel for the Appellant/Defendant submits that there is no consensus ad idem between the parties in regard to the execution of Ex.A.1 Mortgage Deed dated 16.06.1997 and also that there is no free consent on the part of the Appellant/Defendant in regard to the execution of Ex.A.1 Mortgage Deed dated 16.06.1997.
(xx) It is the contention of the Learned Counsel for the Appellant/Defendant that the Appellant/Defendant reposed confidence on the Respondent/Plaintiff (who is his relative) and taking advantage of the same, the Appellant/Defendant has been taken to the Sub Registrar's Office, Edalakudy and there, his signature and thumb impression have been obtained fraudulently stating that as if he is a witness to the document obtained from one Ravi Ashoken, son of Kolappa Pillai, Kakkumoor.
(xxi) A perusal of the recitals of Ex.A.1 Mortgage Deed dated 16.06.1997 indicates that the said deed has been executed by the Appellant/Defendant to and in favour of the Respondent/Plaintiff. The recitals of Ex.A.1 Mortgage Deed are in Tamil. In the Mortgage Deed, there is a recital that the Appellant/Defendant has received a sum of Rs.12,000/- in cash for his family expenses and further has agreed to pay interest to Rs.2/- for Rs.100/- per month. Ex.A.1 Mortgage Deed dated 16.06.1997 is a registered document at the office of the Edalakudy Sub Registrar and one Dharmakan and Ravi Ashoken have signed as identifying witnesses. The Appellant/Defendant's left thumb impression is seen in page 2 of the Ex.A.1 Mortgage Deed. Also, the Respondent/Plaintiff has signed. Furthermore, the Sub Registrar, Edalakudy has also signed in the said deed. Ex.A.1 Mortgage Deed has been written by Y.Ramanatha Pillai S/o Yogeeswaran Pillai. The suit properties has been given in mortgage as per Ex.A.1 Mortgage Deed dated 16.06.1997.
(xxii) In this connection, this Court pertinently points out that Section 91 of the Indian Evidence Act relates to the evidence of the terms of contract grants and other disposition of properties reduced to the form of document. This Section merely forbids proving the contents of writing otherwise than by writing itself.
(xxiii) Section 91 deals with the exclusion of oral by documentary evidence. The general rule is that the contents of all documents must be proved by primary evidence which means the document itself in original. Section 91 is called as 'the best evidence rule'. The rule prescribed by Section 91 of the Indian Evidence Act can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases secondary evidence allowed to be led under the provisions of the Indian Evidence Act.
(xxiv) Section 92 forbids of any evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of subject document. Section 91 and 92 of the Indian Evidence Act have spoken each other. Section 91 would be inappropriate without the help of Section 92 of the Indian Evidence Act. Section 92 is inoperative without the aid of Section 91 of the Indian Evidence Act.
(xxv) It is to be borne in mind that the evidence of attestors to the mortgage deed is indispensable unless it is impossible to produce them. Ordinarily Section 68 of the Indian Evidence Act is complied with when attesting witness is produced.
(xxvi) As far as the present case is concerned, the first witness in Ex.A.1 Mortgage Deed dated 16.06.1997, Dharmakan has been examined as D.W.2 on the side of the Appellant/Defendant. In his cross examination, D.W.2 has deposed that himself and the Appellant/Defendant have signed before the Sub Registrar and he does not know the other witness, who has signed in the document. As a matter of fact, D.W.2 (in cross examination) has admitted that he has affixed his signature as witness and further he has not affixed his thumb impression and also that he has not seen the Appellant/Defendant affixing his thumb impression. But D.W.2 has denied that the Appellant/Defendant has informed him that it is the mortgage deed and only after knowing the details, the Appellant/Defendant has signed in the said document.
(xxvii) Although, D.W.2 (first witness to Ex.A.1 Mortgage Deed) has stated in his evidence that himself, the Appellant/Defendant and another person have signed in the document and he does not know the contents of the document and further, the Appellant also does not know the contents of the document, are not to be accepted by this Court for the simple reason the best evidence is Ex.A.1 Mortgage Deed dated 16.06.1997 itself and the contents of the said Mortgage Deed prohibits the admission of oral evidence which would be contrary to the terms of the agreement/contract.
(xxviii) In the instant case, though P.W.1 in his evidence has stated that he is a coolie and will earn Rs.80/- or Rs.70/- per day and per month, he used to get Rs.700/-, Rs.750/- and he has no other income and also that the Appellant/Defendant is also a coolie and further it is true that he has no means to lend money on interest, in cross examination (with the permission of the Court), he has categorically deposed that he has taken a chit from Chandrasekar and possessed the money. Even though, for taking the chit from Chandrasekar, P.W.1 has no documentary evidence, the fact remains that with the said chit amount, he has lent a sum of Rs.12,000/- to the Appellant/Defendant and the Appellant/Defendant has received the money and executed Ex.A.1 Mortgage Deed dated 16.06.1997 before Edalakudy Sub Registrar in the presence of witness D.W.2 and another witness. The evidence of D.W.2 that he does not know about the contents of the document viz., Ex.A.1 Mortgage Deed dated 16.06.1997 and further the Appellant does not know the contents of the said mortgage deed which unworthy of acceptance by this Court because of the simple fact that the contents of Ex.A.1 Mortgage Deed speaks for itself and when the best evidence Ex.A.1 Mortgage Deed dated 16.06.1997 is very much available before this Court, it is not open to the Appellant/Defendant or to the witness D.W.2 to either take a contra stand or to project a different version in evidence. In short, the evidence of D.W.2 will not in anyway help the case of the Appellant/Defendant in the considered opinion of this Court.
(xxix) A cursory glance of Ex.A.1 Mortgage Deed dated 16.06.1997 shows that the Appellant/Defendant has agreed to pay interest at the rate of 24% p.a. for the principal sum of Rs.12,000/- mentioned in the document. But in the evidence of P.W.1 (Respondent/Plaintiff), he has restricted his interest claim at the rate of 12% p.a. for the principal sum of Rs.12,000/-. Even though, the second witness in Ex.A.1 Mortgage Deed has not been examined before the trial Court (apart from examining D.W.2 on the side of the Appellant/Defendant), yet the same is not fatal to the case of the Respondent/Plaintiff. If really, the Appellant/Defendant has not executed Ex.A.1 Mortgage Deed dated 16.06.1997, at the earliest point of time, the Appellant/Defendant would have lodged a police complaint or ought to have taken further action in the matter. But the Appellant/Defendant has remained silent, which is certainly an adverse circumstance against the Appellant/Defendant in the considered opinion of this Court.
(xxx) Unfortunately, these aspects of the matter have not been adverted to by the trial Court in its Judgment in the main suit. Indeed, the trial Court has dismissed the main suit filed by the Respondent/Plaintiff.
(xxxi) On appeal filed by the Respondent/Plaintiff, the first Appellate Court has set aside the Judgment and Decree of the trial Court in O.S.No.311 of 2004 dated 26.10.2004 and allowed the appeal and in fact, it decreed the suit.
(xxxii) At this juncture, this Court refers to Section 34 of the Civil Procedure Code which deals with 'interest' and the same is as follows:
"(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.
'Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions. Explanation I- In this sub-section 'nationalised bank' means a corresponding new bank as defined in the Banking Companies Acquisition and Transfer of Undertaking Act 1970 (5 of 1970).
Explanation II- For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.
(2) Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment, or other earlier date, the court shall be deemed to have refused such interest, and a separate suit therefore shall not lie."
(xxxiii) Section 34 of the Civil Procedure Code relates to the post litigation interest. Section 34 is a general procedural provision. Its applicability or inapplicability or extent to applicability will depend on the facts and circumstances of each case.
(xxxiv) Order 34 Rule 11 of the Civil Procedure Code pertaining to suits relating to Mortgage of immovable property speaks of payment of interest. It is to be noted that the question of payment of interest payable in a mortgage suit is governed by Order 34 Rule 11 of the Civil Procedure Code and not by Section 34 of the Civil Procedure Code, as opined by this Court.
(xxxv) The special provisions of Order 34 are to be applied in preference to the general provision of Section 34 of the Civil Procedure Code, in the considered opinion of this Court.
(xxxvi) Be that as it may, on a careful consideration of the respective contentions and this Court taking note of the evidence of P.W.1, D.W.1 and D.W.2 and on consideration of the available oral material on record comes to an inevitable conclusion that Ex.A.1 Mortgage Deed dated 16.06.1997 for Rs.12,000/- in respect of the suit property has been executed by the Appellant/Defendant to and in favour of the Respondent/Plaintiff and further that the First Appellate Authority viz., the Learned I Additional Subordinate Judge, Nagercoil is correct in allowing the appeal, not only on the basis of the signature of the Appellant/Defendant is admitted in Ex.A.1 Mortgage Deed dated 16.06.1997. Further Ex.A.1 Mortgage Deed has been proved by the Respondent/Plaintiff in the case on hand and also that the First Appellate Court is correct in shifting the onus of proof over the Appellant/Defendant inasmuch as "the burden of proof" is not static under the Indian Evidence Act and that too when the Respondent/Plaintiff has discharged his burden of proving the execution of Ex.A.1 Mortgage Deed dated 16.06.1997 by the Appellant/Defendant. Moreover, this Court holds that the evidence of D.W.2 a witness in Ex.A.1 Mortgage Deed dated 16.06.1997 is not helpful to the Appellant/Defendant and there is no infirmity or illegality committed by the First Appellate Court in not considering his evidence and and in any event, the same is not fatal. Accordingly, the Substantial Questions of Law (I) to (III) are answered against the Appellant/Defendant.
11. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the First Appellate Court viz., the Learned I Additional Subordinate Judge, Nagercoil in A.S.No.74 of 2005 dated 27.03.2006 are confirmed by this Court for the reasons assigned in this Second Appeal. Consequently, the connected Miscellaneous Petition is also closed.
ssl To
1. The I Additional Subordinate Judge, Nagercoil.
2. The Principal District Munsif, Nagercoil.