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TMI Blog2004 (8) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... nor the defendants paid any amount, towards the mortgage deed, despite repeated demands made by the plaintiff. Veerasamy Reddiar died leaving the defendants, as his legal heirs, who are entitled to inherit the suit property, which is the subject matter of the mortgage and in this view, they are liable to answer the mortgage debt. The defendants are not entitled to the benefits of the Debt Relief Act. The effort of the plaintiff, to recover the amount, outside the Court, by repeated demands, ended in vain, resulting the suit, for the recovery of a sum of Rs.31,200/-, with subsequent interest. 3. Objections to the plaintiff's claim in brief. Veerasamy Reddiar had not executed any pronote, as alleged in the plaint. The suit mortgage was executed without consideration and therefore, the defendants are not liable to pay the suit claim. Thiru Raghava Reddy offered to sell his lands, for a stated consideration of Rs. 45,000/-. Veerasamy Reddiar paid Rs.10,000/- and Rs.5,000/- on different dates obtaining agreements. For completing the transaction, a further sum of Rs.25,000/- was required urgently and because of this urgency and pressure given by Raghava Reddy, the mortgage dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the trial Court failed to take adverse inference, for the non examination of the second defendant, who was a party to the mortgage, thereby presuming that the mortgage is supported by consideration, which is supported by the oral evidence of P.Ws.1 2 and (iv) that the trial Court had not properly appreciated the evidence, applying the trite law, thereby landed in an erroneous Judgment, warranting this Court to interfere in order to grant a decree, as prayed for. 8. Mr. N. Subbarayalu, the learned counsel appearing for the contesting respondents submits, as rightly held by the trial Court, the plaintiff had miserably failed to prove the passing of consideration, by producing the promissory note said to have been executed by the deceased, Veerasamy Reddiar, as well as the subsisting liability on the date of the execution of the mortgage. and the trial Court properly appreciating the evidence on record, had reached an unerring conclusion, which requires the seal of approval, by this Court. In this view, the learned counsel for the respondents fully supported the findings of the trial Court, praying for the dismissal of the appeal. 9. The pleadings and the submissions made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence were given on either side, A would succeed, as the bond is not disputed and fraud is not proved. Therefore the burden of proof is on B . As seen from the written statement filed by the second defendant, the execution of the mortgage deed is admitted which reads : The suit mortgage was executed without consideration under the circumstances stated below . Therefore, the burden is upon the defendants, especially upon the second defendant, who is a party to Ex.A1, to prove that the mortgage came into existence, under the circumstances stated in the written statement, that too, without any consideration, though there are some recitals in the deed, regarding the passing of consideration. We are conscious of the fact, that Ex.A1 is not a negotiable instrument, armed with presumption, under the Negotiable Instruments Act. In this view, it could be said, the initial burden is upon the plaintiff, to prove the passing of consideration. In this case, in view of the admitted position the execution of Ex.A1 is admitted, in our considered opinion, the oral evidence of P.Ws.1 and 2, supported by the recitals in the registered document viz., Ex.A1, to which some of the defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our interference. 14. The submission of the learned counsel for the appellant, that for the non-examination of the second defendant, an adverse inference, and presumption against the defendants has to be taken, is of much force. In this case, the first defendant, who is the wife of the deceased- Veerasamy Reddiar, alone has been examined, who had exhibited her ignorance, regarding the execution, passing of consideration under Ex.A1. The proper person who could speak about the execution of the mortgage deed and passing of consideration thereunder should be only the second defendant, being the party to Ex.A1. 15. Section 114 of the Indian Evidence Act empowers the Court to draw certain kind of presumption, on the basis of certain established facts. Section 114(g) says, the Court may presume, that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Under this provision, an adverse inference could be drawn against the defendants, for failing on their part, to call the material witness viz., the second defendant. Further, when a party fails to call as his witness, the principal person involved in the transaction, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff's case and High Court was right in drawing adverse inference against the plaintiff on this aspect . By applying the above principle, it should be held, the non examination of the second defendant is fatal to the defence, thereby compelling the Court, to draw an adverse inference, as well as presumption under Section 114(g) of the Indian Evidence Act. 17. As submitted by the learned counsel for the respondents, the oral evidence of P.W.1 viz., the plaintiff is not so effective, strengthening Ex.A1. But, we do not find any reason, to discard the oral testimony of P.W.2, who is the husband of P.W.1. In fact, in the written statement itself, it is stated that the plaintiff's husband alone had taken the mortgage deed, in the name of his wife i.e. P.W.1. Law does not prohibit the husband from acting on behalf of his wife, or taking documents in the name of his wife, either advancing his amount or the wife's amount, as the case may be. In fact, Section 120 of the Indian Evidence Act, empowers the husband to be a competent witness, on behalf of the wife. To avoid adverse comments, in this case, both the husband and wife had been examined as P.Ws.1 2. The trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and therefore, it should be held, as rightly held by the trial Court, that Ex.A1 is not supported by consideration. 20. By going through the above two decisions very carefully, as well as by evaluating the materials available on record, we are unable to persuade ourselves, to accept the above submission of the counsel. In Ganapathy v. Vaidyalingam, the question arose, about the acknowledgment of liability, in order to decide the claim, whether it is within the time or not. The same is the position in the case involved in Valliammal v. Sivathu also. In both the cases, it is held, mere admission of past liability is not sufficient, to constitute such an acknowledgment without proof of subsisting liability. The present suit is not based on the promissory note said to have been executed by the deceased Veerasamy Reddiar, treating Ex.A1 as acknowledgment, of liability. Therefore, the question, whether the recital in Ex.A1 about the promissory note would constitute an acknowledgment of liability or not, does not arise for consideration in this case. 21. The reference about the promissory note in Ex.A1 is for passing of consideration. It is the specific recital in Ex.A1, that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a way accepted by the defendants, in the written statement, though not directly. In paragraph-7 of the written statement, it is said, that Veerasamy Reddiar had negotiated to purchase the property from Veerasamy Reddiar for Rs.45,000/- and towards the sale consideration, a sum of Rs.15,000/- had been paid, first at Rs.10,000/-, later on Rs.5,000/- totally Rs.15,000/-. If we read the plaint allegations and the averments in the written statement coupled with the evidence of P.W.2, the irresistible conclusion that should arise, is that Veerasamy Reddiar should have borrowed a sum of Rs.15,000/- from the plaintiff, through her husband, P.W.2, to pay Rs.15,000/-, for the purchase of the property. True, no legal finding could be arrived on the basis of the surmises and conjectures alone and it should have the acceptable legal evidence. The above inference is fully supported by the oral evidence of P.W.2, strengthened by the recitals in Ex.A1, buttressed by the non examination of the second defendant, since though he had an opportunity to deny, having failed, allowed us to hold, that the case of the plaintiff must be true. 23. The plaint reads that the promissory note was discharged on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial forum must be, that only to discharge the bond debt, mortgage deed was executed. 26. The case of the contesting defendants that P.W.2 promised to pay the amount after the registration of Ex.A1, failed to pay the same, remained as dead letters, in the absence of supportive evidence. D.W.1, the first defendant is incompetent to speak about Ex.A1, since she was not a party. D2 is a party. Assuming that the plaintiff or her husband failed to pay the amount, if that case is true, in the ordinary course, the defendants ought to have issued a notice, calling upon the plaintiff or her husband as the case may be, setting forth under what circumstances Ex.A1 came into existence, then demanding the amount also or questioning the genuineness of the document itself. The purpose of execution of A-1 is to complete the sale transaction. The position being so, if amount had not been paid, any prudent man ought to have demanded the amount orally, on failure, by issuing notice, which are not available in this case. This could have been well spoken by the second defendant, but he failed to enter into the box for the reasons best known to him. In this view, the non examination of the secon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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