LAKSHMIDEVAMMA Vs. POBBISETTI KRISHTIAH

JUDGEMENT

(1.) The defendant a widow is the appellant. The plaintiff's suit was to recover Rs. 1281-4-0, the principal and interest due on a mortgage-deed, executed in his favour, by her. She pleaded that the suit mortgage was nominal and brought about by fraud and undue influence. The other pleas raised in the case are not pressed before me. The first Court found that the mortgage was supported by consideration to the extent of Rs. 200, that there was no fraud and undue influence and gave a decree to the plaintiff for that sum. Both sides appealed. The learned District Judge decreed the plaintiff's suit as prayed for.

(2.) Now, the plea urged in the second appeal is limited to the liability for the payment of Rs. 800 only, inasmuch as the memorandum of second appeal shows that the appellant submits to the decree so far as Rs. 200 is concerned. The lower appellate Court found on evidence that the promissory note is supported by full consideration. What is argued in second appeal is that in arriving at this conclusion, the learned District Judge has relied entirely upon inadmissible evidence and has also thrown wrongly the burden of proving want of consideration on the appellant.

(3.) Ex. A. relates that Rs. 300 was paid to D. W. 5, Rs. 400 to one Venkatakrishtayya now deceased and Rs. 100 to C. Narasimhayya. The balance of Rs. 200 was paid to the defendant in cash before the Sub-Registrar In a suit brought by a reversioner against the appellant as the defendant 1 and the present plaintiff as the defendant 4 to set aside this alienation, O. S. No. 30 of 19, evidence was given by the present D. Ws. 1 and 2, 4 and 5 regarding the payment of Rs. 800. D. W. 1 is the writer of Ex. A. and D. Ws. 2 and 4 are its attestors. The evidence of these witnesses given in the prior suit was filed in the present suit on behalf of the defendant-appellant as Exs. 1, 2, 3, and 4 and the judgment in that suit was filed as Ex. 5 In the appellate Court, the learned District Judge admitted two new documents Exs B and C as he thought that in the interests of justice it was necessary that they should be admitted Ex. B is the copy of the deposition given by the deceased Venkatakrishtayya in O. S. No. 30 of 19. It will be remembered that he was the person to whom Rs. 400 was given by the plaintiff according to the recital in Ex. A, and C is the receipt passed by this Venkatakrishtayya to the plaintiff. They both, therefore, deal with a portion of the consideration viz., Rs. 400 mentioned in Ex. A. Of course D. W. 1 in his evidence then given which, as I have said, is exhibited in this case says that the plaintiff gave Rs. 400 to the deceased Venkatakrishtayya so that even without B and C admitted for the first time in the appellate Court evidence has already been given in the first Court itself with regard to this part of the consideration.