Aaraayee vs Vasantha
2021 Latest Caselaw 10449 Mad

                                                                       S.A.(MD)No.709 of 2012

                                   THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 23.04.2021

                                                   CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                             S.A.(MD)No.709 of 2012
                                                      and
                                              M.P.(MD)No.2 of 2012

                   1.Aaraayee

                   2.Anbalagan

                   3.Kalaiselvi

                   4.Kalaiyarasi

                   5.Chitra

                   6.Minor Muniyasamy

                   7.Minor Backiyaraj                                     ... Appellants
                                                   -Vs-


                   Vasantha                                               ...Respondent


                   PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
                   Code, against the Judgment and Decree dated 26.11.2008 made in A.S.No.
                   220 of 2005 on the file of the Additional Sub Court, Kumbakonam
                   reversing the Judgment and Decree dated 30.11.2004 made in O.S.No.100
                   of 2002 on the file of the Principal District Munsif Court, Kumbakonam.



https://www.mhc.tn.gov.in/judis/


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                                                                            S.A.(MD)No.709 of 2012

                                           For Appellants   : Mr.R.Rajaramani
                                           For Respondent : Mr.Anandan


                                                      JUDGMENT

The defendants in O.S.No.100/2002 on the file of the Principal

District Munsif Court, Kumbakonam, are the appellants in this second

appeal. The suit was instituted by the respondent R.Vasantha. The case of

the plaintiff is that Poovandi and his wife Aaraayee borrowed a sum of

Rs.10,000/- on 08.12.1990 and executed Ex.A1 promissory note dated

08.12.1990. They had agreed to repay the loan with interest at 12% per

annum. The borrowers did not clear the loan liability, even though a

number of demands were made on behalf of the plaintiff. Therefore, the

plaintiff had to issue notice-Ex.A2 dated 18.02.1991. Though both

Poovandi as well as Aaraayee received the notices, no reply was sent. Since

the demand for payment was not complied with, the plaintiff filed the suit

on 07.12.1991 before the District Munsif Court, Kumbakonam. It was later

renumbered as O.S.No.100 of 2002. During the pendency of the suit,

Poovandi passed away and his children was brought on record. The

defendants denied the case of the plaintiff in toto and categorized Ex.A1 as

fabricated document. Vasantha examined herself as P.W.1 and one of the

attestors namely Gnanaprakash was examined as P.W.2. On the side of the

defendants, D3-Anbalagan S/o. Poovandi examined himself as D.W.1. No https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.709 of 2012

documentary evidence was adduced on the side of the defendants. The

learned trial Munsif, after consideration of the evidence on record,

dismissed the suit vide Judgment and Decree dated 30.11.2004.

Aggrieved by the dismissal of the suit, the plaintiff filed A.S.No.220/2005

before the Additional Sub Court, Kumbakonam. By Judgment and Decree

dated 26.011.2008, the Judgment and Decree passed by the trial Court was

set aside and the appeal was allowed. The defendants were directed to pay

the suit claim with interest. Challenging the same, this second appeal came

to be filed. The second appeal was admitted on the following substantial

questions of law.

“1.Whether the lower Appellate Court is correct in decreeing the

suit when the plaintiff did not get the signatures compared by a

handwriting expert as contemplated under Section 45 of the Evidence

Act? And

2.Whether the discrepancy in the date of attestation is a material

alteration in the suit pro-note?”

2.Heard the learned counsel on either side.

3.The learned counsel for the appellant reiterated all the contentions

set out in the memorandum of grounds and submitted that the questions of https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.709 of 2012

law raised in this appeal deserve to be answered in favour of the appellants

and he pressed for allowing the appeal by setting aside the impugned

Judgment and decree passed by the First Appellate Court.

4.Per contra, the learned counsel for the respondent submitted that the

impugned Judgment of the First Appellate Court does not call for any

interference. He pressed for dismissal of the second appeal.

5.I carefully considered the rival contentions and went through the

evidence on record. As already noted, O.S.No.100 of 2002 on the file of the

Principal District Munsif Court, Kumbakonam, is a suit for recovery of

money. It was instituted on the strength of Ex.A1 promissory note dated

08.12.1990. In the promissory note, one finds the signature of Poovandi

and there is also the thumb impression of one Aarayee. The case of the

plaintiff is that the original defendant Poovandi and his wife Arayee-D2 had

executed the suit pro-note. But the defence is that Ex.A1 is a fabricated

document. The plaintiff had not taken any step for referring Ex.A1 for

comparison by the hand writing expert as far as the signature of Poovandi is

concerned. Obviously, no Court can come to any conclusion as regards

thumb impression. The trial Court had also noted that the signature found

in Ex.A3-acknowledgement card differs from the one found in Ex.A1. https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.709 of 2012

6.The only question that arises for my consideration is whether the

suit pro-note can be said to have been proved in the light of the testimony

of P.W.2-Gnanaprakasam attesting witness. I went through the testimony of

the attesting witness. Gnanaprakasam had categorically deposed that one

Nagamuthu signed as attesting witness and he affixed his signature as

attesting witness and only thereafter, scribe affixed his signature.

Nagamuthu is said to have passed away, by the time, the case was taken up

for trial. A mere look at Ex.A1 would show that Nagamuthu had signed in

Ex.A1-pro-note on 15.01.1991. The date attributed to Ex.A1-pro-note is

08.12.1990. That is why, when the second appeal was admitted, one of the

substantial questions of law formulated was whether the discrepancy in the

date of attestation is a material alteration in the suit pro-note. Whether it is

a material alteration or not need not be gone into for a moment. P.W.2-

Gnanaprakasam had stated that he affixed his signature after the attestation

by Nagamuthu, When it is seen that Nagamuthu had attested only on

15.01.1991, the entire case of the plaintiff falls to the ground. This vital

aspect of the matter was not taken note of by the first Appellate Court.

Therefore, the suit pro-note cannot be said to have been proved by the

testimony of the witnesses examined on the side of the plaintiff. Only the

expert opinion could have said shed light. The jurisdiction under Section https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.709 of 2012

G.R.SWAMINATHAN, J.

rmi

73 of the Indian Evidence Act could have been invoked to find out if the

signature attributed to Poovandi was actually his. But the genuineness of

thumb impression could have been established only after obtaining expert

opinion.

7.In this view of the matter, the impugned Judgment passed by the

First Appellate Court is set aside by answering the first substantial question

of law in favour of the appellant. The Judgment and decree passed by the

trial Court is restored. The second appeal is allowed. No costs.

Consequently, connected miscellaneous petition is closed.

23.04.2021

Internet : Yes/No Index : Yes/No rmi To

1.The Principal District Munsif Court, Kumbakonam.

2.The Additional Sub Court, Kumbakonam.

3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.

Judgment made in S.A.(MD)No.709 of 2012 and M.P.(MD)No.2 of 2012 https://www.mhc.tn.gov.in/judis/