Appeal against dismissal of a suit for recovery of Rs.90,000 based on a disputed agreement. The Court held the agreement was not legally proved due to deficient evidence from parties with an interest and the timing suggesting fabrication, dismissing the appeal.
Appeal suit dismissed. Plaintiff not entitled to any relief on the suit amount.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO
APPEAL SUIT No.2121 OF 1998
JUDGMENT:
The plaintiff in O.S. No.105 of 1984 on the file of the Senior Civil Judge, Tanuku, is appellant herein.
2. The suit was filed for recovery of a sum of Rs.90,000/- with interest thereon.
3. The allegations in the plaint goes to show that the plaintiff and defendant are brothers and during the life time of their father, properties were divided. After the death of the father, there were some problems and some taxes were payable and the plaintiff has paid income tax, gift tax and estate duty etc. and there after the matter was referred to M.Ramachander Rao, M.Suryanarayana and others. They have mediated and found that as per the account between the two brothers a sum of Rs.90,000/was payable by the defendant to the plaintiff and therefore the defendant has executed an agreement on 15.08.1981 undertaking to pay a sum of Rs.90,000/- with interest at 12% from 15.01.1982 and it also contained some other arrangements with regard to the property disputes. Subsequently, the disputes arose between the plaintiff and defendant and a civil suit was filed and criminal case
was also instituted. The defendant failed to pay the amount and hence the suit.
4. The defendant has filed a written statement denying the allegations in the plaint and admitting the relationship. It was pleaded in the written statement that after the death of the partents, there was income tax raid and in that connection the plaintiff and defendant has attended to various hearings. The alleged mediation and also the execution of the agreement dated 15.08.1981 is disputed and he further pleaded that it was fabricated with the assistance of PW3, who is the father-in-law of the plaintiff and maternal uncle of the defendant. There is a litigation between the plaintiff and the defendant since the time of the death of their parents and in such circumstances, it is difficult to believe that a compromise would have been effected on 15.08.1981. The plaintiff filed O.S. No.302 of 1983 and in the said suit the plaintiff served a memo calling upon the defendant to admit the disputed agreement as the disputed passage, which is the subject matter of the above suit, was referred in that agreement. The defendant gave a reply stating that he is not aware of such agreement. Therefore, the defendant pleaded that the agreement is not true and valid and consequently the plaintiff is not entitled to the suit amount. 5. On the basis of the above pleadings, necessary issues were framed for trial. On behalf of the plaintiff,
PWs.1 to 3 were examined and marked Exs.A1 to A32. On behalf of the defendant, DWs.1 and 2 were examined and marked Exs.B1 to B5. Considering the evidence on record, the Court below has dismissed the suit of the plaintiff. Aggrieved by the said judgment, the present Appeal Suit is filed.
The points arose for consideration are:
1. Whether the agreement Ex-A1 relied on by the plaintiff is true?
2. Whether the plaintiff is entitled for the suit amount?
POINTS:
6. There is no dispute about the relationship between the parties. In fact, even as per the evidence of the defendant, the father died in the year 1972 and he claims that there was a partition effected by PW.3, M.Ramachander Rao, Veeraraju and others. According to him, the estate duty and income tax affairs were completely settled and he along with the plaintiff paid the amounts equally. According to him, there are disputes since fifteen or sixteen years and he was not on cordial terms with the plaintiff. He denied that Ex.A1 was the duplicate and the original was given to him and the said document was in his custody. He also denied the employment of PW.2 under him. In cross-examination, he stated that the income tax raised was pending till 1976 and he also filed some of the accounts pertaining to his
business.
7. As can be seen from the Ex.A1, which is the disputed agreement, apart from the reference to the immovable property so far as the suit claim is concerned, it mentions that after sharing of the amounts and also the liability of the taxes, penalties and after settling the accounts in the presence of PW.3, a sum of Rs.90,000/- was found to be due and the defendant is alleged to have agreed to pay the said amount from 15.01.1982 with interest at 12%.
8. Now, the Court below has noticed that in order to support this claim of settlement of Rs.90,000/-, there is no supporting document. In fact, the counsel for appellant tried to contend that Exs.A20 and 21 are the promissory notes, which shows the difference of the amount. But, however, these two documents were not referred to in Ex.A1. Added to that, Ex.A1 is only a true copy of the agreement. The evidence of PW.2, who is said to be scribe of the agreement, shows that he scribed Ex.A1 in duplicate. In fact, his evidence does not show as to how the figure was arrived at and as to how the contents in the Ex.A1 were written. It is not his evidence that in his presence the accounts were settled by PW.3 and both the parties have agreed for the same. In fact, his evidence clearly goes to show except copying the draft given to him, he does not know anything and he did not question about the contents. Though there is an effort on behalf of
the defendant to confront him with Ex.B1 affidavit, still in view of his evidence before the Court about the lack of knowledge of Ex.A1 and its contents, the affidavit Ex.B1 is of no relevancy and it can be ignored. Therefore, as the matter stands the evidence of scribe of the documents is not of much helpful to prove the nature of the transaction. In fact, PW.3 is no other than the father-in-law of the plaintiff in whose presence the said settlement is said to have taken place. According to his evidence, he obtained the list of promissory notes from each of the parties. He filed Ex.A2 and the list of promissory notes and amounts were settled between the parties and in that connection the defendant owed a sum of Rs.90,000/-. The document was said to have been executed and he has seen the draft of the document and in the meanwhile he went out and therefore evidently his evidence does not show that either the plaintiff or the defendant has signed on Ex.A1. His evidence also does not show that in his presence, the parties have signed though he identifies the signature on Ex.A1. His evidence clearly goes to show that PW.2 worked under him. In fact, it is the specific plea of the defendant that all these manipulations in Ex.A1 were done by PW.3. Evidently, he is the father-in-law of the plaintiff and there cannot be any doubt of interestedness.
9. As can be seen from the written statement, apart from
PW.3 other persons were also present as mediators and elders and they were not examined. Even PW.3 did not attest the agreement and no other elder, who was said to be present and settled the accounts, was also examined. Therefore, in view of the deficient evidence of PW.2 and 3, the agreement Ex.A1 cannot be said to have been proved though there may be some documents in favour of the plaintiff with regard to payment of taxes etc. In fact, even from the evidence of defendant, the payments were made equally and he has paid the amount to the plaintiff.
10. Further more, the timing of the Ex.A1 throws any amount of doubt about its genuineness. Evidently a month after the alleged agreement, a criminal case is said to have been filed and a civil suit is also filed with regard to the enjoyment of the property which was said to have been settled under Ex.A1. If really the brothers have settled the disputes amicably and voluntarily executed Ex.A1, it is very difficult to except that there could have been a litigation within short time. Thereafter, the evidence of the defendant goes to show that even prior to Ex.A1 there were long standing disputes and in fact they were not on cordial terms.
11. Therefore, in view of the above circumstances, the lower Court has rightly refused to believe the evidence of PWs.2 and 3 and it has to be held that Ex.A1 is not legally
proved. Consequently, the plaintiff is not entitled for any relief.
Accordingly, the appeal suit is dismissed. No costs. Consequently, Miscellaneous petitions, if any, pending in this appeal shall stand closed.
____________________________________ JUSTICE N.R.L. NAGESWARA RAO
Date:04.04.2013 Knl/ Inl
2 issues framed by the court
Whether the agreement Exhibited as A1 executed by the defendant is legally proved?
Whether the plaintiff is entitled to recover the suit amount based on the agreement?
Plaintiff
Defendant
N.R.L. NAGESWARA RAO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
