ROOP SINGH Vs. CHHOGA LAL

JUDGEMENT

(1.) THIS civil second appeal in a money suit has been filed by one of the two defendants. The suit was decreed by the Additional Civil Judge, Balotra against defendant respondent Dalpatsingh and was dismissed as against the appellant, but in appeal it was decreed also against the appellant by the learned Additional District Judge, Jalore, vide his judgment dated January 9, 1973. The appeal arises in the following circumstances.

(2.) PLAINTIFF Chhogalal instituted a suit for the recovery of a sum of Rs. 7000/ - against defendants Dalpat Singh and Roop Singh in the Court of Civil Judge, Jalore. The case set -up by him is that on April 18, 1962 defendant Dalpat Singh purchased bus No. RJN 294 from him for a sum of Rs. 11,000/ -. A sum of Rs. 1000/ - was given to him at the time of transaction through a bank cheque issued by defendant Roopsingh. The balance of Rs. 10,000/ - was to be paid in two instalments each of Rs. 5000/ -. Defendant Roopsingh, who is the grandfather -in -law of defendant Dalapat Singh stood surety for him and undertook to pay the remaining balance of Rs. 10,000/ - in case it was not paid by the principal defendant Dalpat Singh. The deed of transaction Ex. 2 was executed between the plaintiff and defendant Dalpatsingh on that very day at Jodhpur, mentioning therein that defendant Roopsingh stood as a surety. It was also signed by defendant Roopsingh. In case the balance was not paid on due dates, it would carry interest at rate of Re. 1% per month. Defendant Roopsingh paid a sum of Rs. 4000/ - on July 14, 1962 and a sum of Rs. 1000/ - on July 20, 1962 to the plaintiff through bank cheques drawn on State Bank of India, Jodhpur. Thereafter the defendant failed to pay the remaining balance of Rs. 5000/ -. The plaintiff, therefore, brought a suit for the recovery of Rs. 5000/ - as principal and Rs. 2000/ - as interest thereon. The total being Rs. 7000/ -. The suit was resisted by both the defendants Dalapat Singh and Roopsingh through separate written statements. The defence taken by defendant Roopsingh is that he had signed Ex. 2 only as an attesting witness. He categorically denied that he stood surety for defendant Dalpat Singh and undertook to pay the remaining balance as a surety. The trial court raised the necessary issues. Both the parties led evidence both oral and documentary. On the conclusion of the trial, the learned Additional Civil Judge held that defendant Roopsingh had appended his signatures on Ex. 2 only as an attesting witness. He did not stand surety for the payment of money to the plaintiff. The suit was decreed against defendant Dalpat Singh but was dismissed against defendant Roopsingh. The plaintiff went in appeal. In appeal, the learned Additional District Judge, Jalore held that defendant Roopsingh stood surety for defendant Dalpatsingh and had signed Ex. 2 as a surety and not as an attesting witness. Since the remaining balance was not paid by defendant Dalpatsingh, defendant Roop Singh was liable for its payment. The appeal was allowed and the suit was decreed as against defendant Roopsingh also. Aggrieved against the judgment and decree of the Additional District Judge, defendant Roopsingh has come up in this civil second appeal.

(3.) IN assailing the judgment and decree of the learned Additional District Judge, it was vehemently contended by Mr. M.R. Bhansali, learned counsel appearing for the defendant Roop Singh that the whole approach of the court below was erroneous and unsustainable. Document Ex. 2 itself shows that the appellant had appended his signatures thereon as an attesting witness. The words 'witness Roopsingh' marked X to Y on Ex. 2 are sufficient to show that in fact defendant Roopsingh was only an attesting witness and had appended his signatures on it in that capacity and not as a surety. The recitals in Ex. 2 of making him a surety were not in the knowledge of defendant Roop Singh. There is no presumption in law that the contents of a document are in the knowledge of an attesting witness when he puts his attestation on it. The various letters, on which the lower appellate court put reliance in holding Roopsingh as a surety, were wrongly construed. Since Roopsingh was the real grandfather -in -law of Dalpatsingh, he made the payments to the plaintiff. These payments were made by him on behalf of Dalpatsingh and not on behalf of himself. From these payments it should not be inferred that he made them in his capacity as a surety for Dalpatsingh. It was also argued that the attestation of Taggaram (PW 3) was subsequently obtained. Taggaram was not present when Ex. 2 was executed. Had he been present at the time of execution of Ex. 2, he would have also put his attestation on Ex. 3 which is a counter -part of Ex. 2. It was argued that in these circumstances, it cannot be said that defendant Roopsingh stood surety for Dalapat Singh and undertook to pay the remaining balance of the purchase money. The learned Additional District Judge was, therefore, in error in accepting the appeal and decreeing the suit against the defendant appellant Roopsingh.