G. Yadaiah Yadav vs K. Saguna
2022 Latest Caselaw 161 Tel

             HON'BLE SMT. JUSTICE P.SREE SUDHA

                       CCCA No.228 OF 2006

                         JUDGEMENT

1. This appeal is preferred by G.Yadaiah Yadav against the

judgment dated 23.01.2006 passed in O.S.No.170 of 1998 on the

file of the learned IV Additional Metropolitan Session Judge,

Hyderabad-cum-XVIII Additional Chief Judge, Hyderabad. The

appellant herein is the plaintiff.

2. The appellant-plaintiff filed the above suit against the

respondent-defendant seeking for recovery of an amount of

Rs.4,16,000/- with interest at the rate of 16% per annum and on

the basis of an equitable mortgage deed created by the defendant

by depositing her title deeds on the same day for a decree of

Rs.5,65,760/- along with interest.

3. The plaintiff was engaged in milk business and the husband

of the defendant-K.Gopal is good friend to him. According to the

plaintiff, the husband of the defendant requested him for an

amount of Rs.4,25,000/- but he gave an amount of Rs.4,16,000/-.

The defendant executed a promissory note and agreed to pay

interest at the rate of 12% per annum for the borrowed amount of

Rs.4,16,000/- on 19.04.1995 and she also deposited title deeds on

the same day. But the defendant postponed the repayment of the

borrowed amount on one or the other pretext. The plaintiff gave

legal notice to the defendant on 18.03.1998 and filed the suit for

recovery of the said amount.

4. The defendant filed a written statement denying all the

averments. She dispute the source of income of the plaintiff to lend

such huge amount. She also stated that she has no necessity to

borrow the amount. She admitted that she is the absolute owner of

the house in the gift deed and also admitted execution of gift deed

by her father-in-law in her favour. In the additional written

statement she stated that plaintiff made her husband to consume

liquor and might have obtained certain document and created

some documents which are not valid and binding on her. She also

filed Crime No.318 of 1998 for criminal trespass against the

plaintiff and also filed W.P.No.24534 of 1999 for police protection.

5. The plaintiff filed a re-joinder stating that that the defendant

was having two daughters and three sons and her husband was

engaged in a travel business. The plaintiff claimed that their elder

daughter Aruna's betrothal took place in April, 1995 and the

marriage was settled in May, 1995. The plaintiff sold eight

buffaloes on 05.01.1995 for Rs.1,50,000/- and another eight

buffaloes on 10.02.1995 for an amount of Rs.1,50,000/- and

received a total consideration of Rs.3,00,000/- and he filed gram

panchayat receipts issued in his favour to prove the same. It is the

claim of the plaintiff that the husband of the defendant came to

know about this and approached him for Rs.4,25,000/- on which

he agreed to give an amount of Rs.4,16,000/-. He also stated that

he paid Rs.1,16,000/- from savings of milk business.

6. Before the Court below the plaintiff examined himself as

PW-1 and an attestor as PW-2 and also marked Exs.A-1 to A-13.

The defendant examined herself as DW-1 and her son as DW-2

and marked driving licence and RC book of DW-2 as Exs.B-1 and

B-2.

7. The defendant denied her signature and also pointed out the

alteration in the date of the promissory note. After considering the

evidence on record, the trial Court dismissed the suit. Aggrieved by

the said judgement, the plaintiff preferred this appeal.

8. The parties hereinafter are referred as in the suit for the sake

of convenience.

9. The plaintiff examined himself and an attestor and filed the

promissory note executed by the defendant on 19.04.1995 and

also memorandum of deposit of title deeds made on the same date,

along with encumbrance certificate, gift deed, dated 18.10.1994

and sale deed dated 02.06.1975 as Exs.A-1 to A-5.

10. The defendant in her evidence deposed that they belong to

middle-class family and that they do not go to others for loans as

they are well off and she also stated that plaintiff has no source of

income as such. The plaintiff filed the certificate issued by Gram

Panchayat and receipt of the Gram Panchayat as Exs.A-9 and A-10

to show that he sold sixteen buffaloes for an amount of

Rs.3,00,000/-.

11. The appellant would contend that the trial Court failed to

appreciate the oral and documentary evidence filed by him and

dismissed the suit for recovery of amount. He also stated that the

trial Court without the opinion of handwriting expert, erroneously

came to the conclusion in respect of alteration and denial of

execution of the signature on Exs.A-1 and A-2 and misconstrued

Section 73 of the Evidence Act. He would further contend that the

trial Court disbelieved the other side evidence and documents and

wrongly came to the conclusion that Exs.A-1 and A-2 are

fabricated. The appellant would also contend that the settled law is

that a mere deposit of title deeds does not require compulsory

registration. Ex.A-2 is a memorandum of deposit of title deeds, it

was marked and admitted in evidence and hence it cannot be

questioned at a later stage. The possession of the document with

the plaintiff is only in pursuance of Ex.A-2, for which an equitable

mortgage is created. The trail Court relied upon the evidence of

defendant and dismissed the suit, and therefore, the appellant

approached this court to set aside the judgement.

12. Learned counsel for the appellant-plaintiff would contend

that it is not a simple suit for recovery of amount basing on

promissory note. But the defendant also executed Ex.A-2 and

furnished Exs.A-3 to A-5, original documents pertaining to her.

When it was elicited in the cross examination of DW-1 as to how

those documents went into the hands of plaintiff, she simply stated

that she gave original documents to one Balaiah on obtaining a

loan of Rs.50,000/- and she does not know how those documents

were obtained by the plaintiff. She has not examined Balaiah to

substantiate her version. She has not stated this fact in the written

statement, but stated the same during her cross-examination.

Moreover, she has not taken any action against him for handing

over the original documents to the plaintiff and thus, the

defendant failed to explain how the original documents Exs.A-3 to

A-5 went into the hands of the plaintiff without her knowledge.

13. The said promissory note was executed by defendant

K.Sadhuguna on 19.04.1995 and her husband K.Gopal signed as a

surety and it was also attested by her son-PW-2 and one Subhash

Rathi.

14. PW-2 during his evidence clearly deposed that on the request

of defendant he went to her house and in his presence and in the

presence of Kishan Yadav, Dasharath-DW-2 the said amount was

given by the plaintiff to the defendant. He also confirmed that the

promissory note was signed by the defendant and her husband.

PW-2 is the second attestor and DW-2 was the first attestor. He

admitted that there is no signature at the place of date in the

receipt and promissory note for correction in the date. He further

stated that he again went to the house of defendant and they

handed over certain house documents to the plaintiff. He has not

signed on those documents but signed only on the promissory note

and receipt. He denied the suggestion that the signatures of DW-1

and her husband were forged on Exs.A-1 and A-2. The trial Court

disbelieved his evidence on the ground that in chief-examination

he stated that the defendant received amount in the house of

plaintiff and in the cross-examination he stated that it can be

received in the house of defendant. In fact, amount was given by

plaintiff to the defendant in his house at 11.00 am on 19.04.1995.

Again on the same day defendant executed Ex.A2 and handed over

Exs.A3 to A5 to the plaintiff in the presence of P.W.2. Admittedly,

he went to the house of defendant twice on that day.

15. In the cross examination of DW-1, she stated that the

betrothal of daughter was in July, 1994 and marriage in was in

November, 1994, but she has not filed the invitation card of the

same. It was suggested to her that the marriage was in May, 1995

and Betrothal was in April, 1995, but she denied the same. She

also stated that her husband was working as a commission agent

in a transport company. They sustained losses in the transport

business over the last ten years and mortgaged their building with

Balaiah for an amount of Rs.50,000/-. She has not filed any bank

statement to show that they were having sufficient money at the

time of suit transaction. She also admitted that she has not

initiated any action against anyone for forging her signature.

Though she stated that she will examine her husband and son as

witnesses, she has not examined her husband and son Anil

Kumar. It was suggested to her that she deliberately withheld their

evidence as they had admitted in the criminal case that she

borrowed the money.

16. DW-2-K.Aravind is the son of the defendant. He stated that

his father is illiterate and cannot sign. He denied his signature on

Exs.A-1 and A-2. It was suggested to him that he along with his

mother altered their signatures after borrowing the amount to get

over their liability, but he denied the same.

17. The plaintiff also stated that STC.No.1253 of 2000 was

registered against him and his son, which was ended in acquittal.

He filed the copy of the judgement under Ex.A-11. He filed the

depositions of Anil and Gopal under Exs.A-12 and A-13 and

contended that both of them have made admissions regarding the

execution of promissory note in the said depositions.

18. The trial Court compared the signature of DW-1 on the

vakalat, written statement and additional written statement with

that of her signature in the promissory note. In the said

documents she signed as K.Sadguna, whereas in the promissory

note, she had signed as K.Sadhuguna. Further, it was stated that

there was a material alteration in the date of Ex.A-1 and that letter

'2' is altered as '1'. The date on the promissory note was initially

mentioned as 20.04.1995 and altered it as 19.04.1995. P.W.1

stated that the date is corrected by the defendant. She did not sign

under it after correction, but the trial Court considered it as a

material alteration. Plaint was filed on 17.04.1998, thus it cannot

be said that correction was made to save the limitation.

19. From a perusal of Ex.A-2, it is revealed that the plaintiff

advanced an amount of Rs.4,16,000/- to the defendant and she

acknowledged the receipt of the amount and she also agreed to

repay the same with interest at the rate of 12% per annum and she

deposited the title deeds pertaining to the house and the gift deed

executed by her father-in-law in her name with the plaintiff. She

also executed a promissory note as a collateral security and

executed an agreement of sale in favour of the plaintiff as

additional collateral security. The original registered sale deed with

plan dated 02.06.1975 executed in favour of K.Bheemaiah and

original registered gift deed executed by K.Bheemaiah in favour of

K.Sadhuguna on 18.10.1984 and also the Encumbrance

Certificate dated 17.04.1995 for 15 years were shown in Ex.A-2

and they are filed herein as Exs.A-3 to A-5.

20. Learned counsel for the plaintiff would contend that the

defendant failed to explain how the plaintiff got possession of the

said documents, whereas the plaintiff stated that they were

deposited by defendant while executing Ex.A-1. She also executed

Ex.A-2 on the same day and handed over Exs.A-3 to A-5 to the

plaintiff. The oral evidence of PW-1 and PW-2 along with the

documentary evidence of Exs.A-1 to A-5 clearly show that the

plaintiff gave an amount of Rs.4,16,000/- to the defendant and she

agreed to return the same with interest at the rate of 12% per

annum and executed Ex.A-1 as a collateral security and A-2 by

creating equitable mortgage.

21. Learned counsel for the defendant argued that Ex.A-2 is an

unregistered document and it cannot be looked into. But in the

case of UMDE BHOJRAM V/s. WADLA GANGADHAR1, it was held

that if a suit is filed for recovery of money, the unregistered

mortgage deed is admissible in evidence for the collateral purpose

of proving the debt. In view of the above judgement, the argument

of the defendant counsel cannot be accepted.

22. The plaintiff also issued a legal notice, marked as Ex.A-6 on

18.03.1998, in which he specifically mentioned regarding the

payment of an amount of Rs.4,16,000/- and deposit of title deeds

on 19.04.1995. He also filed Exs.A-7 and A-8 to show the service of

summons. The defendant stated that she issued reply notice on

10.04.1998 but she has not filed the copy of the same.

23. The name of the defendant was shown as K.Sadhuguna in

Exs.A-3 and A-4. She also signed as Sadhuguna on Ex.A-2. But

later, after the filing of the O.P., she started signing as K.Sadguna

wilfully. As such, there is variation in her signature and she

cannot take advantage of the same.

24. The plaintiff filed original documents under Exs.A-1 to A-5 to

substantiate his version and also examined PW-2 in support of his

contentions. The plaintiff has established his case through oral

and documentary evidence.

2004(2)ALD339

25. The defendant took the plea of forgery. DW-1 and DW-2

stated that their signatures were forged on Exs.A-1 and A-2. When

a plea of forgery is taken, the burden of proof shifts to them and

they should refer the documents to the expert to prove their

defence of forgery, but they failed to do so. They simply filed Exs.

B-1 and B-2 to compare the signatures of DW-2 and the signature

of DW-1 on vakalat, written statement and additional written

statement were compared with that of her signatures in Exs.A-1

and A-2. Of course, plaintiff also mentioned the name of defendant

as K.Sadguna in the suit, instead of K.Sadhuguna. He has not

amended the same during the pendency of proceedings. Even

during the cross examination, DW-1 denied her signatures on

additional written statement, written statement, vakalat, affidavit

and Ex.A1 and later, she admitted her signatures on vakalat and

affidavits and denied her signature on Ex.A2. She gave evasive

answers during the cross examination.

26. The trial Court failed to appreciate the evidence on record

properly. The trial Court erred in dispensing with the defendant's

burden of proof with regard to forgery of their signatures, by

merely noting the defendant's contention that her husband is

addicted to liquor and hence his signature was obtained on the

documents under influence. The trial Court also erred in holding

that the Ex.A-2 ought to have been registered, and thus the

judgement is liable to be set aside.

27. In the result, the appeal is allowed, setting aside the

judgement dated 23.01.2006 in O.S. No.170 of 1998 on the file of

the learned IV Additional Metropolitan Session Judge, Hyderabad-

cum-XVIII Additional Chief Judge, Hyderabad. The plaintiff is

entitled for recovery of an amount of Rs.4,16,000/- with interest at

the rate of 12% per annum from the date of the suit till the date of

decree and the interest at the rate of 6% from the date of decree till

the date of realisation.

28. Miscellaneous petitions, if any, pending in this appeal shall

stand closed in the light of this final order.

____________________ P. SREE SUDHA, J.

21ST JANUARY, 2022

PGS