KINHANNA ALVA Vs. SHANKAR BANTA

JUDGEMENT

(1.) The respondent sued the appellant second defendant and his deceased mother, the first defendant, for refund of Rs. 1600/- alleged to have been advanced by him under an edurnudi, Ext. A 3, dated the 13th June, 1954, as part of a transaction of lease and as the consideration therefor. Under the decree for partition in O. S. 122 of 1949, certain properties were allotted to the share of the appellant and his mother, two of which forming one garden, were said to have been leased to the respondent on the 24th March, 1954. It is the respondent's case, that as the consideration for the lease or premium, the first defendant had then demanded a sum of Rs. 1600/- which he agreed to pay, on the realisation of an outstanding due to him from one Padmavathi, but that, this failing, he assigned a mortgage right under Ext. A 4 on the 27th May, 1954, raised Rs. 1700, and paid Rs. 1600 under Ext. A3, but subsequently the appellant trespassed into the properties and his complaint against it proved futile. The first defendant contended that she did not execute an edurnudi as such, that she had not received any sum as alleged and that she is not liable. The appellant was impleaded in order to bind the family. The Munsiff accepted the defence and dismissed the suit, but in appeal the Subordinate Judge gave the respondent a decree.

(2.) The lower courts have concurrently held, that the first defendant executed Ext. A 3 with knowledge of its contents. These findings rest on sufficient evidence and are not liable to be disturbed in Second Appeal. The case of the first defendant, when examined as Dw. 2 was, that at the" instance of Pws. 4 and 5 she simply signed papers on which three or four stamps were affixed, at the residence of the appellant's father inlaw while she was there, but that afterwards, during the police investigation into the complaint of trespass against the appellant, she knew that Ext. A 3 had been fabricated. Pw. 4 gave evidence as regards the execution, and Pw. 5 as regards the attestation, of Ext. A 3 and Pw. 1 the respondent swore to his case. I hold that the first defendant executed Ext. A 3, knowing its contents.

(3.) This finding is sufficient to cast the burden on the first defendant to prove, that she had not received the consideration as recited in Ext. A 3. The lease deed, genichit as it is called, was executed by the respondent in favour of the first defendant. The execution of this is recited in Ext. A 3 and must be taken to be proved. It may be that the genichit did not recite the proposed payment of Rs. 1600, but this is of no importance in view of the admission in Ext. A 3. The evidence adduced on behalf of the respondent, was primarily to prove the execution of Ext. A 3. The appellant was not present at the execution of Ext. A 3, but this is immaterial, once it is noticed, that the attestor in Ext. A 3 was Koragappa Alva, the brother of Akkari Banta, the father inlaw of the appellant. The first defendant admitted that they were all in the best of terms. It is too unreasonable to think, that the first defendant would have executed Ext. A 3 without receiving the consideration under it, while acting in the presence of near relations. The story that she came to know the truth about Ext. A 3 only during the police investigation is incredible. That the respondent had funds with him for making payment, is apparent from Ext. A 4. The first defendant issued a notice Ext. A 5 on the 3rd December, 1954, to Pw. 5, stating that the money had been taken by Pw. 5. This at least shows, that her present theory, that she signed merely blank papers and that no payment was made by the respondent under it, is palpably false. If, as stated in Ext. A 5, Pw. 5 had walked away with the amount after the execution of Ext. A 3, the respondent is not to suffer for it. When Pw. 5 was examined, this theory seems to have been abandoned, as there was no cross examination as to it or upon his statement to the contrary in chief examination, either for the first defendant or for the appellant. This is of very great significance. The Munsiff misplaced the burden of proving absence of consideration for Ext. A 3, although he found execution of it to be duly proved. I am of the view, that the appellant and the first defendant have not sustained the burden of proving that the consideration under Ext. A 3 was not received by the first defendant as recited in it.