Madras High Court
V.Saraswathi vs Mohandhas on 15 June, 2021
1 A.S.(MD)NO.68 OF 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.68 of 2016
V.Saraswathi ... Appellant/Plaintiff
Vs.
Kumaresan(died)
1. Mohandhas
2. Ponnammal
3. Sathish ... Respondents/Defendants
Prayer: Second appeal filed under Section Order 41
Rule 1 & 2 of C.P.C. r/w. Section 96 of C.P.C., to call for the
records from the Court below and set aside the Decree and
Judgment of the learned IV Additional District Judge,
Tirunelveli, dated 28.10.2015 made in O.S.No.42 of 2011 by
allowing this appeal and decree the above suit.
For Appellant : Mr.G.Prabhu Rajadurai
For R-1 & R-2 : No appearance.
***
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2 A.S.(MD)NO.68 OF 2016
JUDGMENT
This appeal is directed against the Judgment and
Decree dated 28.10.2015 made in O.S.No.42 of 2011 on the
file of the IV Additional District Judge, Tiruneveli.
2. The plaintiff in the said suit is the appellant before
this Court. The case of the plaintiff is as follows:-
The first defendant Kumaresan is the father of the
plaintiff. The second defendant Mohandhas and the fourth
defendant Satheesh are her brothers. The third defendant
Ponnammal is the mother of the plaintiff. The suit was
originally filed only against the father and the elder brother
Mohandhas. Following the demise of the father, defendants 3
and 4 were brought on record as his legal heirs. According to
the plaintiff, the first defendant and the second defendant
conducted business in the name and style of “Shree.K.Raja
Embroidering Works” at Chennai. They requested the plaintiff
to lend financial assistance for running the business. The
plaintiff's husband Thiru.Venkatesaraja was then employed in
Dubai. The defendants wanted the plaintiff to give a sum of
Rs.10,00,000/-. Since the plaintiff was having a sum of
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3 A.S.(MD)NO.68 OF 2016
Rs.5,00,000/- in cash, she handed over the said amount to
defendants 1 and 2. She also gave 99 sovereigns of gold to
enable defendants 1 and 2 to pledge the same and raise funds.
This handing over of cash and jewels is said to have taken
place in March 1996. According to the plaintiff, the said
defendants executed Ex.A.1 letter of undertaking dated
03.07.1996 undertaking to return the sum of Rs.5,00,000/- and
the jewellery within a period of twelve years. The business is
said to have run into loss and considering the relationship, the
plaintiff did not pressurise them to return the borrowed
amount and jewellery.
3. The admitted case of the defendants is that after
the business suffered a loss, the parents returned to the native
village and were staying with the plaintiff for several years.
The contesting defendants would state that the relationship
broke down some time in the year 2010. When the plaintiff
declined to maintain the parents. Be that as it may, the
plaintiff caused to issue Ex.A.2 notice dated 08.02.2011 calling
upon defendants 1 and 2 to return what was borrowed from
her in March 1996. Ex.A.4 is the reply notice dated
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22.02.2011 controverting the stand of the plaintiff. Left with
no other option, the plaintiff filed the aforesaid suit seeking
recovery of a sum of Rs.9,47,915/- with interest and also for
recovering the gold jewellery which was valued at Rs.
12,87,000/-.
4. The contesting defendants filed their written
statement denying the suit claim. Based on the divergent
pleadings, the trial Court framed the following four issues:-
“ (1) Whether the document dated
03.07.1996 is valid under law?
(2) Whether the suit is in time?
(3) Whether the plaintiff is entitled to
Judgment and Decree for Rs.9,47,915/- with
interest and cost and 99 sovereign jewels or
equivalent to money of Rs.12,87,000/-?
(4) To what further relief the parties
are entitled to? ”
5. On the side of the plaintiff, the plaintiff examined
herself as P.W.1 and one of the brothers, namely, Satheesh as
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P.W.2. One Raveendran who is said to have attested Ex.A.1
was examined as P.W.3. P.W.2 had also attested the said
document. Ex.A.1 to Ex.A.10 were marked. On the side of the
defendants, the elder brother of the plaintiff Mohandhas was
examined as D.W.1. Ex.B.1 to Ex.B.4 were marked on the side
of the defendants. The trial Court by Judgment and Decree
dated 28.10.2015 dismissed the suit. Challenging the same,
this appeal came to be filed.
6. The appeal has been dismissed as regards the third
respondent Satheesh. The plaintiff could have sued her
mother and brother Satheesh only to the extent of their
inheritance from the father. Kumaresan had not left anything
behind. Therefore, the appellant has no claim against
Satheesh. Her case is directed against her mother and elder
brother Mohandhas and that is why the appeal has been
allowed to be dismissed as regards the younger brother
Satheesh. The plaintiff is content to pursue the appeal only
against her mother and the elder brother Mohandhas.
7. Even though the first respondent Mohandhas has
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been served and his name is also printed in the cause list,
there is no appearance on his behalf.
8. The learned trial Judge has given three reasons for
non-suiting the plaintiff. The first reason is that the suit is
barred by limitation. It is not in dispute that the Court below
had stated that in Ex.A.1 letter of undertaking, it has not been
mentioned as to when the borrowal had taken place. It is also
not in dispute that Ex.A.1 was not executed on the date when
the cash along with jewels were handed over. The Court below
chose to treat Ex.A.1 only as an acknowledgement and hold
that the period of limitation of three years would start running
from the date of Ex.A.1, that is, from 03.07.1996. Therefore,
the first point for my consideration is whether the Court below
was right in holding that the suit was hit by limitation.
9. Before answering this question, I have to
necessarily give a finding as to whether the plaintiff had
established that Ex.A.1 letter of undertaking was executed by
the first defendant Kumaresan and the second defendant
Mohandhas. The Court below had noted that when the
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contesting defendants took out an application for referring
Ex.A.1 for the opinion of the handwriting expert, the plaintiff
had opposed the same and I.A.No.87 of 2013 filed by the
contesting defendants came to be dismissed. The Court below
took the view that having prevented the defendants from
establishing that they did not execute Ex.A.1, the plaintiff
ought to have taken steps to have the signatures in Ex.A.1
compared with the admitted signatures of defendants 1 and 2.
She did not do so. The plaintiff thus failed to prove that Ex.A.1
was actually executed by defendants 1 and 2.
10. As rightly pointed out by the learned counsel
appearing for the appellant, the suit itself was laid on the
strength of Ex.A.1. In the written statement, the defendants
had only taken the stand that Ex.A.1 is a fabricated document.
The signatures appearing in Ex.A.1 have not been specifically
denied in the written statement. In any event, when the trial
Court had chosen to dismiss I.A.No.87 of 2013 filed by them,
the same cannot be put against the plaintiff while disposing
the suit on merits. The plaintiff had examined the attestors of
Ex.A.1. One of the attestors is none other than Satheesh who
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is the son of Kumaresan and younger brother of the plaintiff
and Mohandhas. I therefore have no hesitation to come to the
conclusion that the plaintiff had proved the execution of Ex.A.
1 by D.W.1 Kumaresan and D.W.2 Mohandhas.
11. In Ex.A.1, it has been mentioned that the
defendants would return the borrowed cash and jewellery
within a period of twelve years. In that event, the period of
three years limitation would start running only from the expiry
of the period of twelve years from the date of execution of
Ex.A.1. Ex.A.1 was executed on 03.07.1996. The twelve years'
period expired on 02.07.2008. The suit ought to have been
filed on or before 01.07.2011. In the case on hand, the suit
was filed on 10.06.2011. Therefore, the Court below erred in
holding that the suit was barred by limitation.
12. Though I have held that Ex.A.1 has been
established by the appellant, I am of the view that the plaintiff
will be entitled only for monetary portion covered under
Ex.A.1. Though Ex.A.1 also talks about handing over of 99
sovereigns of gold, it is completely bereft of details. When the
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plaintiff could give a list of 22 items in the suit schedule,
nothing prevented the plaintiff to annex the same along with
Ex.A.1. It is also quite possible that the jewellery handed over
by the plaintiff was, what was given by the father at the time
of her marriage. When Ex.A.1 is completely silent about the
details of the jewellery handed over by the plaintiff, it would
be most unsafe to pass a decree based on Ex.A.1. Therefore,
even while reversing the decision of the trial Court, I decree
the suit only as regards the cash portion covered in Ex.A.1.
13. The Judgment and Decree passed by the trial
Court is partly set aside. This appeal suit is partly allowed. The
first respondent Mohandhas is directed to pay a sum of
Rs.9,47,915/- with interest at the rate of 6% from the date of
the plaint till the date of realisation. No costs.
15.06.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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10 A.S.(MD)NO.68 OF 2016
G.R.SWAMINATHAN,J.
PMU
To:
1. The IV Additional District Judge,
Tirunelveli.
2. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
A.S.(MD)No.68 of 2016
15.06.2021
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