High Court of KeralaSingle Judge2018-11-30Dismissed

Chinnammal (deceased) and Ravikumar v. Pushpa, Suresh and Kalavathy

Case / Petition Number:RSA.No.1253 of 2005

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Somarajan
Judgment Date: 2018-11-30
Court Decision / Holding: The Regular Second Appeal is dismissed. The court upholds the first appellate court’s dismissal of the suit and holds that the plaintiff failed to prove due execution of Ext. A1 promissory note; no costs awarded.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Chinnammal (deceased) W/o. Palaniswamy, Sakthi Vinayakar Theruvu, Thelungupalaym Post, Coimbatore District (Legal Heir impleaded as Additional Second Appellant)
Ravikumar, Aged 38, S/o. Palaniswamy, Sakthi Vinayakar Theruvu, Thelungupalayam Post, Coimbatore District (Legal Heir of deceased sole appellant impleaded as Addl. 2nd Appellant)

Respondents

Pushpa, W/o. Late Sundaram, Maniyakaṛan Challa Parisakkal (Post), Vadakarápathi Village, Chittur Taluk, Palakkad District
Suresh, S/o. Late Sundaram Maniyakaṛan, Residing at -DO- -DO-
Kalavathy, D/o. Late Sundaram Residing at -DO- -DO-

Legal Representation & Advocates

Counsels for Petitioners

• S. Sreekumar (Sr.)
• P. Martin Jose
• P. Prijith
• Thomas P. Kuruvilla

Counsels for Respondents

• Liju M.P.
• Sajan Varghese K.

Case Synopsis & Summary

This Regular Second Appeal arises from a suit for recovery of ₹35,000 on Ext. A1 promissory note alleged to be executed by Sundaram, the husband of the first defendant, and by the father of the remaining defendants. The suit, instituted after Sundaram’s death, was initially decreed by the trial court but reversed by the first appellate court which dismissed the suit. The appellant contends that Ext. A1 was duly executed and that the plaintiff, Chinammal, supported by PW2 (the scribe) and PW3 (a witness), established due execution; the note itself bears endorsements and an acknowledgment reflected in the scribe’s endorsement. The first appellate court, however, found significant inconsistencies: the stamp paper’s source was disputed (PW2 stated the plaintiff brought it, while the plaintiff claimed ignorance), and PW2’s testimony wavered about witnessing the loan transaction; cross‑examination undermined the reliability of PW2 and PW3’s accounts, and the endorsement in Ext. A1 cast doubt on direct knowledge of payment. The court held that, after the executant’s death, there is no presumption of execution, and the burden rests on the plaintiff to prove due execution. A cited precedent on Section 118 presumption was discussed but distinguished as pertaining to consideration rather than execution. Ultimately, the High Court dismisses the appeal, upholding the appellate decision, and awards no costs.

Provisions of Law Cited

Section 118 of the Negotiable Instruments Act

Legal Doctrines & Maxims

Burden of proof lies on the plaintiff to prove the due execution of a promissory note
No presumption as to execution when the dispute arises after the death of the executant
Presumption under Section 118 NI Act relates to consideration, not execution (distinguished in this case)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants pl remaining content summarised: The appellants contend Ext. A1 promissory note was duly executed by the deceased Sundaram; the trial court’s decision was based on oral evidence from PW1 (plaintiff), PW2 (scribe) and PW3 (witness). They argue inconsistencies in PW2’s stand about the stamp paper, source ofExt. A1, and the alleged witnessing of payment. Cross-examination undermined the reliability of PW2 and PW3; the endorsement by the scribe in Ext. A1 undermines direct knowledge of payment. They rely on a principle of presumption under Section 118 NI Act for consideration, citing Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm; however, execution remains a matter of proof. The appellants submit that the burden lies with the plaintiff to prove execution and that the lower courts erred in discarding the plaintiff’s evidence without proper scrutiny.

Contentions of Respondents

The respondents argue that the evidence on record shows material inconsistencies in the plaintiff’s case regarding execution. They highlight that PW2’s testimony about bringing the stamp paper and witnessing the payment is unreliable, and cross-examination reveals contradictions. They contend that the promissory note was not proven to be duly executed, especially after the death of the executant, and that no presumption of execution applies. They also contend that the evidence does not establish the plaintiff’s entitlement to the amount claimed and that the trial court’s findings were properly reversed by the appellate court.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and Others	2008 KHC 6512	Partly Overruled / Limited	Cited to discuss Section 118 NI Act presumption; court distinguishes its application to execution, limiting its relevance to consideration rather than execution.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.SOMARAJAN** **FRIDAY, THE 30TH DAY OF NOVEMBER 2018/9TH AGRAHAYANA, 1940** **RSA.No.1253 of 2005 G** **AGAINST THE JUDGMENT AND DECREE DATED 30.6.2005 IN AS NO.33/2003 of THE II ADDL.DISTRICT COURT, PALAKKAD** **AGAINST THE JUDGMENT AND DECREE DATED 18.11.2002 IN OS NO.131/2002 OF THE MUNSIFF'S COURT, CHITTUR.** ## **APPELLANT/RESPONDENT/PLAINTIFF:** **1 CHINNAMMAL (DIED) W/O.PALANISWAMY, SAKTHI VINAYAKAR THERUVU, THELUNGUPALAYAM POST, COIMBATORE DISTRICT.** **(LEGAL HEIR IS IMPLEADED AS ADDITIONAL SECOND APPELLANT)** **ADDITIONAL APPELLANT:** **2 RAVIKUMAR, AGED 38, S/O.PALANISWAMY, SAKTHI VINAYAKAR THERUVU, THELUNGUPALAYAM POST, COIMBATORE DISTRICT.** **LEGAL HEIR OF DECEASED SOLE APPELLANT IS IMPLEADED AS ADDITIONAL 2ND APPELLANT AS PER THE ORDER DATED 2.3.2018 IN I.A.NO.2643/2015.** **ADDL.2ND APPELLANT BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENTS/APPELLANTS/DEFENDANTS 2 TO 4:** - **1 PUSHPA, W/O.LATE SUNDARAM, MANIYAKARAN CHALLA PARISAKKAL (POST), VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.** - **2 SURESH, S/O.LATE SUNDARAM MANIYAKARAN, RESIDING AT -DO- -DO-** - **3 KALAVATHY, D/O.LATE SUNDARAM RESIDING AT -DO- -DO-** **R1 AND R2 BY ADVS. SRI.LIJU. M.P SRI.SAJAN VARGHEESE K.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.No.1253 of 2005 :: 2 :: ## **JUDGMENT** Divergent findings rendered by both the trial court and the first appellate court regarding execution of a promissory note, alleged to have been executed by the husband of the first defendant and the father of the remaining defendants, in O.S.No.131 of 2002 and in A.S.No.33 of 2003 are under challenge in this second appeal. The suit was originally decreed by the trial court but it was reversed by the first appellate court by dismissing the suit. Aggrieved by the said dismissal, the plaintiff came up with this appeal. 2. The suit is one for recovery of an amount of `35,000/- covered by Ext.A1 promissory note. In order to prove the due execution of the promissory note, the plaintiff had given oral evidence as PW1 and two witnesses were examined as PW2 and PW3. PW2 is the scribe and PW3 is the witness. The promissory note was executed by one deceased Sundaram. The suit was instituted after his death against his legal heirs. R.S.A.No.1253 of 2005 :: 3 :: 3. Regarding the proof of execution of the promissory note, the oral evidence tendered by PW1, PW2 and PW3 were rejected by the first appellate court mainly on the discrepancy and inconsistency crept in their evidence. One of the important aspects taken up by the learned District Judge is with respect to the stamp paper brought for the purpose of execution and preparation of the promissory note. While in box, the plaintiff had deposed that she did not know who had brought it. But PW2 the scribe categorically stated that it is PW1, the plaintiff, who had brought it. If the stamp paper was actually brought by the plaintiff, as deposed by PW2, there is no occasion for her to plead ignorance about the same and to depose that she did not know who had actually brought it. The said inconsistency looms large when the execution was under challenge after the death of the executant. It is really a vital factor connected with the execution of the document. 4. Yet another aspect was also taken up by R.S.A.No.1253 of 2005 :: 4 :: the first appellate court regarding the oral evidence tendered by PW2. In his chief examination he had deposed that he had seen the handing over of an amount of `35,000/- to the borrower by the plaintiff. But during cross examination, he turned down stating that in truth he had not witnessed it. It is also deposed during cross examination that he had not seen the payment of any amount by the plaintiff to the borrower. In short, he had turned against what he had deposed at the time of chief examination during the course of cross examination. As such, no reliability can be placed on PW2. Further, the oral evidence tendered by PW2 suffers another inconsistency. In the promissory note there is an endorsement made by him by affixing his signature that he obtained an acknowledgment from the borrower that he had received an amount of `35,000/- from the plaintiff. The last part of the promissory note is really an endorsement made by the scribe certifying that he had received information regarding payment of `35,000/- by the plaintiff to the borrower. If that be so, I am in R.S.A.No.1253 of 2005 :: 5 :: darkness what actually prompted PW2 to depose that he had witnessed the payment of the amount directly by the plaintiff to the borrower at the time of execution of the document. What is tendered by PW2 actually stands against what he had endorsed in Ext.A1 promissory note. So, in any view of the matter, no reliance can be placed on PW2. 5. The other witness examined by the plaintiff is PW3, the witness to the promissory note. He had deposed that he had witnessed the payment effected in cash by the plaintiff to the borrower. It is also deposed by him that it was also witnessed by PW2. PW2 did not have any such case during his cross examination though such an attempt was made by him during the course of chief examination. As discussed earlier, the last endorsement made by the scribe in the promissory note itself would show that he did not have any direct knowledge regarding handing over of cash by the plaintiff to the borrower. If he had actually witnessed the handing over of amount or R.S.A.No.1253 of 2005 :: 6 :: direct payment, definitely there would not be any such endorsement in the promissory note. The said inconsistency looms large and makes oral evidence of PW3 unreliable. In short, there is utter failure on the part of the plaintiff to prove due execution of the promissory note especially after the death of the executant. 6. The learned counsel for the appellant vehemently argued that the defendants, who are the widow and children of the executant, pleaded ignorance about the execution of the promissory note and the signature affixed in the promissory note as that of the executant, the borrower. The pleading of ignorance cannot be substituted in the place of admission of execution especially when the question was taken up after the death of the person who purported to have been executed the document. 7. Another contention was also canvassed by the learned counsel for the appellant based on an admission made by the defendants that she has R.S.A.No.1253 of 2005 :: 7 :: knowledge about borrowal of an amount of `5,000/on an earlier occasion and she came to know about the discharge of the same from her husband. It was raised as an admission from the part of the defendants in connection with the promissory note in question. The same cannot be treated as an admission as it relates to a transaction which happens in between the plaintiff and the borrower. The issue pertaining to the subject matter of the suit is the execution of Ext.A1 promissory note and there cannot be any presumption as to execution of the promissory note. Of course, the learned counsel for the appellant relied on the decision rendered by the Apex Court in **Mallavarapu** ## **Kasivisweswara Rao v. Thadikonda Ramulu Firm and** **Others (2008 KHC 6512)** so as to advance a case that there is a presumption under Section 118 of the Negotiable Instruments Act that the document would stand as supported by consideration and it is upon the defendants to rebut the presumption. But in so far as the matter of execution is concerned, when it is disputed and when it has come up after the death of the person who R.S.A.No.1253 of 2005 :: 8 :: purported to have been executed the document, the pleading of ignorance by his legal heirs cannot be substituted in the place of proof of document or admission. Necessarily, the burden always lies on the plaintiff who claims right over the promissory note. There cannot be any presumption as far as execution is concerned. Nothing else was brought to the notice of this Court in order to have an interference with the finding of the first appellate court. Hence, the appeal fails, deserves only dismissal, but without costs. **SD/** **P.SOMARAJAN JUDGE** ahz/