KANNAN Vs. NANU

JUDGEMENT

(1.) The simple question for consideration in this second appeal filed by the defendant is whether the courts below went wrong in rejecting the plea of discharge supported by Ext.B1 receipt ignoring the evidence of Dws. l and 2 and the opinions of two hand writing experts.

(2.) Execution of Ext. Al pronote for Rs. 6,000/- and receipt of consideration are admitted. Plea is that Rs. 5,500/- was repaid through his son Dw.2 and Ext.Bl receipt was obtained. At the instance of the appellant Ext.Bl was originally compared by an expert with the admitted writings of the respondent. They were found to be of the same person. Then another expert examined at the instance of the respondent He also gave the same opinion. The experts were not examined. Dws. 1 and 2 were found unreliable. There were some inherent improbabilities in their evidence. These grounds prompted the Trial Court and appellate court to reject the plea of discharge which was denied by the respondent.

(3.) Burden of proof is undoubtedly on the appellant. Whether he successfully discharged that burden by the evidence on record is a question of fact on which both the courts adjudged against him. Barring Ext.Bl and the opinion of experts, we are having only the testimonies of the appellant as Dw.1 and his son as Dw.2. The present case is that the amount was sent through Dw.2. In the written statement Dw.2 or anybody else was not specified as the bearer of the amount Ext.Bl is dated 27-12-1976. The definite case of the appellant as dw. 1 was that he sold an item of his landed property for Rs. 7,000/- specifically for discharging this debt and Rs. 5,500/- received as advance was sent on that date itself and Ext.Bl also was received on that day. Balance Rs. 1,500/- is claimed to have been received a few days thereafter when the sale deed was executed. If so it is not known why the balance amount was also not paid. A copy of the sale deed claimed to have been executed by the appellant was produced by the respondent as Ext.A2. It is dated 19-11-1975 while Ext. B1 is dated 27-12-1976. If Dw.l is believed he received Rs. 5,500/- some time prior to 19-11-1975 and sent it to the respondent and received Ext.Bl on that day itself. But Ext.Bl is more than one year after the sale deed itself. So also the total consideration under it is only Rs. 2,700/-. Though it was argued that Ext.A2 is not the document and there is some other sale deed, none was produced. Appellant had no case that he raised Rs. 5,500/- in any other manner.