Patna High Court
Ram Pragas Singh vs Gajendra Prasad Singh And Anr. on 22 July, 1975
Equivalent citations: AIR1976PAT92, AIR 1976 PATNA 92
JUDGMENT S.K. Choudhuri, J.
1. This second appeal is preferred by the plaintiff against the concurrent judgments of the courts below dismissing the suit filed on the basis of a handnote.
2. The plaintiff filed a suit for realisation of Rs. 2,100/-. The plaintiff's case in short, was that this advance of Rs. 2,100/- was given on execution of a handnote by the defendant on the 21st of July, 1963 and the defendant also agreed to pay an interest at the rate of Re. 1/- per cent. per month. The amount not having been paid in spite of demands, the present suit was filed.
3. The defence was that the hand-note was not executed by the defendant. The further defence was that the loan was taken from one Ram Bilash Singh of village Mailam and he gave his thumb impression on a blank piece of paper at that time. Afterwards the said amount was paid back to the said Ram Bilash Singh and the said Ram Bilash Singh gave an impression to the defendant that the said paper had been torn by tearing off a certain paper in his presence. The further defence was that the defendant apprehended that the said Ram Bilash Singh tore a wrong paper and the real one containing his thumb impression was given to the plaintiff, who had utilized the same for the present suit. Thus it has been alleged that the said handnote is forged and fabricated and the defendant never executed a hand-note in favour of the plaintiff. The alleged handnote is also said to be without consideration.
4. The trial court on a consideration of the evidence came to the finding that the left thumb impression on the handnote was that of the defendant. It further found that the handnote in suit is genuine and valid but no advance was made by the plaintiff. As such, it dismissed the suit. Lower Appellate Court held that the plaintiff failed to prove the execution of the handnote and passing of consideration. It further found that the left thumb impression on the handnote was not that of the defendant. With the aforesaid finding it affirmed the judgment of the trial court and dismissed the appeal.
5. Mr. Devkant Chaudhary, learned counsel appearing on behalf of the appellant has contended before me that in the present case it should be taken that the execution of the handnote has been admitted by the defendant as his case was that he gave the thumb impression on a paper which was handed over to one Ram Bilash Singh. He further contended that the plaintiff being the holder in due course of the said handnote is entitled in law to institute the present suit Mr. Lakshman Saran Sinha appearing on behalf of the respondents, however, has contended that the statement that has been made in the written statement cannot amount to an admission of the defendant of the execution of the handnote in favour of the plaintiff. Rather, if it is consirued as a whole, it should be taken that there has been specific denial of the execution of any handnote in favour of the plaintiff. I have already stated above the relevant cases of the parties which are necessary for determination of the present appeal. From the written statement it would be found that in explicit terms there has been no admission by the defendant regarding execution of the hand-note. The only admission made was that he gave his thumb impression in a sada paper to one Ram Bilash Singh from whom he took certain loan which was afterwards repaid and in presence of the defendant at the time of the payment of the said amount the said Ram Bilash Singh tore off the paper bearing thumb impression of the defendant. He further pleaded that it may be that the said Ram Bilash Singh handed over the said paper to the plaintiff which has been utilised for the present case. This is the relevant case that has been made out in the written statement.
6. Mr. Dev Kant Chaudhary contended that the aforesaid statement will amount to an admission of execution of the handnote. He relied upon a single Judge decision of this Court in Sandeo Mauar v. Pulesar Nonia, reported in AIR 1930 Pat 598. In that case it has been held that a pleading to the effect that the defendant put his thumb impression on a blank piece of paper upon which it was intended that a kabuliat should be written out and that this may be the thumb impression and paper which had been utilized for the handnote is a clear admission of the execution of the hand-note by the defendant. The said single Judge decision fully supports the contention of learned counsel for the appellant. But learned counsel for the respondents drew my attention to a Bench decision of this Court in Chulhai Lal Dass v. Kuldip Singh, (AIR 1931 Pat 266). This Bench decision has laid down just the contrary to what has been laid down by a single Judge of this Court in Sahdeo Mauar's case (supra). In this case, i.e., Chulhai Lal Dass's case, the defendant admitted that he took loan of Rs. 300/- from the plaintiff's master and gave a thumb mark and signature acknowledging the loan. Afterwards the said document was converted into a handnote and it was made the basis of the suit. It has been held in that case that the said pleading would not amount to admission of execution of the handnote and, therefore, initial onus lay upon the plaintiff to prove due execution of the handnote and when the said onus is discharged, it is only then that the onus shifts upon the other side to show that no consideration passed under the said handnote. Another decision reported in the same volume was cited by learned counsel for the respondents, namely. Ram Lakhan Singh v. Gog Singh, (AIR 1931 Pat 219). It has been held in this case that--
".....Where the law places the onus on the plaintiff to prove that a document is duly executed, the onus cannot be discharged by 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."
It has been contended by learned counsel for the respondents that in view of the aforesaid two Bench decisions of this Court, it would be deemed that Sahdeo Mauar's case has stood overruled. The said contention of learned counsel, in my opinion, is well founded. I do better if I refer here to a single Judge decision in Ramadhin Singh v Siaram Singh, (AIR 1957 Pat 64) where both the aforesaid Bench, decisions as well as single Judge decision have been considered. This case has also taken into consideration the case of Hriday Singh v. Kailash Singh, (AIR 1940 Pat 377) which was strongly relied upon by learned counsel for the appellant. It is. therefore, not necessary for me to discuss Friday Singh's case (supra) separately. In this case, i.e., Ramadhin Singh's case (supra) the learned Judge after discussing the relevant decisions and the decision of Chulhai Lal Dass's case held as follows:--
"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 Nonia, 11 Pat LT 606 = (AIR 1930 Pat 598). 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-impression came into existence.
In my opinion, this decision is not a good authority in face of Division Bench decisions of this Court above referred to. Both the cases came up for consideration in the case of Hriday Singh v. Kailash Singh, AIR 1940 Pat 377. That case is distinguishable from the present case as well as from the cases of 12 Pat LT 231 = (AIR 1931 Pat 266) and 11 Pat LT 606 = (AIR 1930 Pat 598). 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."
It is also necessary to refer to the case cited by learned counsel for the appellant, namely, Ganga Singh v. Rani Peyar Singh, (AIR 1972 Pat 216). But, in my opinion, this case also does not help the contention put forward by learned counsel for the appellant. In this case also as rightly pointed out by learned counsel for the respondents that due execution of the handnote was admitted and, therefore, the onus was upon the defendant to prove either the plea of Payment or that it was without consideration.
7. Thus on a discussion of the decisions, referred to above. I come to the conclusion that the contention put forward by learned counsel for the appellant has no substance and it has been rightly held in Ramadhin Singh's case AIR 1957 Pat 64 (supra) that Sahdeo Mauar's case AIR 1930 Pat 598 stood overruled by the subsequent Bench decision of this Court reported in AIR 1931 Pat 266 and AIR 1931 Pat 219, referred to by me above.
8. In the result, I find that there is no merit in this appeal and it is accordingly dismissed, but in the circumstances of the case. I make no order as to costs.