SA/826/2012 of M.Latha Jyothi Vs Smt.Eswari on 31 December 2012

JUDGMENT:

The plaintiff is the appellant in this second appeal. She filed the suit in the trial Court for recovery of money fromthe defendants 1 and 2 on the ground that late husband ofthe first defendant borrowed Rs.50,000/- and Rs.50,000/-from her and executed Exs.A-1 and A-2 promissory notes inwhich the 2[nd] defendant also signed as guarantor forhusband of the first defendant. After death of the firstdefendant’s husband Burri Muthyam, the plaintiff got issuedEx.A-3 legal notice to the defendants, for which Ex.A-4 reply notice was given. The first defendant denied her latehusband borrowing Rs.50,000/- and Rs.50,000/- from theplaintiff and executing Exs.A-1 and A-2 in favour of theplaintiff. The 2[nd] defendant also denied having signed inExs.A-1 and A-2 as guarantor for late Muthyam for theamounts covered by the promissory notes. After trial, the trialCourt decreed the suit. On appeal by the defendants 1 and2, the lower appellate Court reversed the said decree passedby the trial Court. Therefore, the plaintiff approached thisCourt with this second appeal.

2) It is contended by the appellant’s counsel in thissecond appeal that there is sufficient proof of execution ofExs.A-1 and A-2 and borrowing by the defendants 1 and 2and that the lower appellate Court erred in reversing wellconsidered judgment of the trial Court. It is further contendedthat it is for the defendants to prove that Exs.A-1 and A-2 areforged.

3) In the absence of admission of execution of thepronotes Exs.A-1 and A-2, the question of legal presumptionunder Section 118 of the Negotiable Instruments Act, 1881will not come into play. It is only on admission or proof ofexecution of the promissory notes, the presumption as to consideration arises. In this case, the defendants 1 and 2totally denied execution of Exs.A-1 and A-2 and passing ofconsideration to late Muthyalu thereunder. To prove Exs.A-1and A-2, the plaintiff examined herself as P.W-1. She did notprefer to examine any persons connected to it. She did notexamine either the scribe or attestors in Exs.A-1 and A-2. P.W-1 expressed ignorance as to who was the scribe ofthose pronotes. Even though P.W-1 stated about presenceof Maruthi, Ramachander and her own father at the time ofExs.A-1 and A-2, she did not choose to examine any ofthem. According to P.W-1, 70% of the amount wascontributed by her father. Admittedly she has no capacity tolend total amount of Rs.1,00,000/- under Exs.A-1 and A-2. The person i.e., her father who gave 70% of the amount forlending under Exs.A-1 and A-2 according to her, remained inthe back ground. There are no steps taken under Section 45of the Evidence Act, 1872 for expert’s opinion by comparingdisputed signatures on Exs.A-1 and A-2 with admittedsignatures of the defendants 1 and 2 in any other proved orunquestionable documents. In the absence of suchevidence, the lower appellate Court rightly reversed thedecree granted by the trial Court. I find no error or legal error committed by the lower appellate Court muchless substantial question of law for decision in this second appeal.

4) Accordingly the second appeal is dismissed.

Dt.31[st] December, 2012ksh

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SAMUDRALA GOVINDARAJULU,J