How to get the evidence for the suit based on the promissory note?/ Stamp duty payable for execution of documents

Krishan Kumar Vs Gurpal Singh on 10 October 2014 in the Punjab Haryana High Court

How to get the evidence for the suit based on the promissory note?

A money lender will be aware to know about how to write or fill in the suit and also to receipt it. They should also know which place the adhesive stamps are to be affixed in the receipt. Most of the people affix the stamp at an unnatural place. For example, in the case of Gurpal Singh, it was not affixed and no date or signatures of Gurpal Singh was not done in the said stamps. They had signed the document after the behest of the plaintiff-respondent. So they too have committed forgery. There is no explanation has been provided by the plaintiff-respondent for their over-writings and counterfeits. The stamp on the pronote part contains the words written as 12500/- which is the half of the amount of pronote. All the stamps have been canceled which are on the basis of writings of the person that will be filled up by the receipt and pronote.

_______________________

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA No.1429 of 1997 (O&M)

Date of decision: 10.10.2014

Krishan Kumar ....Appellant

VERSUS

Gurpal Singh .....Respondent

Present: Mr. Shailendra Sharma, Advocate for the appellant.

Mr. G.S. Sandhu, Advocate for the respondent.

HEMANT GUPTA, J.(Oral)

The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court on 01.02.1997 whereby the defendant's appeal was accepted and the suit filed by the appellant for recovery of Rs.34,000/- on the basis of pronote and receipt dated 28.06.1985 in the sum of Rs.25,000/- was dismissed.

The plaintiff, the present appellant, a licensed money lender, filed a suit for recovery of Rs.34,000/- on the basis of said pronote alleging therein that the defendant undertook to pay interest at the rate of 2% per month and that the defendant has not paid any amount towards the principal or interest. Thus, an amount of Rs.25,000/- as principal and Rs.9,000/- as interest at the rate of 1% per month is claimed by the plaintiff as due and payable by the defendant.

In the written statement, the defendant denied having borrowed an amount of Rs.25,000/- or having executed pronote and I attest to the accuracy and authenticity of this document receipt for that amount. It is asserted that one Balbir Singh, tenant of the defendant, and his brother Hardial Singh used to sell their produce through commission agency of the plaintiff and used to get the amount of rent paid to him through the plaintiff. It is asserted that in April, 1977, the defendant went to the shop of the plaintiff to receive the amount of Rs.5,000/- on account of rent due from the aforesaid tenant Balbir Singh. The plaintiff refused to pay the amount saying that nothing was standing in the credit of Balbir Singh but since the defendant was in need, the plaintiff paid a sum of Rs.5,000/- and the defendant affixed his signatures on the pronote and receipt. It is thus alleged that the plaintiff obtained alleged signatures on blank pronote and receipt forms on the assurance that if the requisite amount is paid to him by Balbir Singh, then he would destroy the pronote and receipt.

In the replication, the plaintiff asserted that the defendant had taken a loan of Rs.5,250/- vide cheque drawn on the State Bank of India on 05.05.1982 and defendant repaid Rs.6,000/- on 18.04.1984.

On the basis of pleadings of the parties, the learned trial Court framed the following issues:-

1. Whether the plaintiff is a money lender without licence?OPD

2. Whether the suit is not competent in view of the legal objection in the written statement?OPD

3. Whether the pronote and receipt are forged and fabricated documents? If so, to what effect? OPD

4. Whether the defendant obtained a loan of Rs.25000/- from the plaintiff on 28.6.85 and executed pronote and receipt on receiving consideration amount? OPP

5. Whether the defendant agreed to pay interest at the rate of 2% per month? If so, to what rate of interest the plaintiff is entitled? OPP

6. Whether the plaintiff has complied with the provisions of Punjab Regulation of Accounts Act?

7. Whether the pronote and receipt are without consideration?

8. Relief.

In order to prove the case, the plaintiff appeared as his own witness as PW-3 and produced money lending licences Ex.P19, P20, P21 and P22 as the licenses for the different period valid up to 06.11.1993. The plaintiff-Krishan Kumar produced pronote (Ex.P2) and receipt (Ex.P3) said to be executed by the defendant on 28.06.1985 on receipt of consideration of Rs.25,000/- and also produced Ex.P4 to Ex.P8, extract from the accounts maintained by the plaintiff. The plaintiff also relied upon cheque dated 05.05.1982 (Ex.P1) said to be given to the defendant as loan by examining PW1 Om Parkash, Record Keeper of State Bank of India, Muktsar. PW-4 Krishan Lal is attesting witness of the receipt (Ex.P3). PW2 is Dewan K.S. Puri, Handwriting Expert, who has deposed that disputed signatures on cheque (Ex.P1), pronote (Ex.P2) and receipt (Ex.P3) are of the defendant. On the other hand, defendant appeared as his own witness as DW1 and also examined Sh. A.K. Gupta, Handwriting and Document Expert as DW2.

After considering the evidence led by the parties, the learned trial Court found that receipt (Ex.P3) and pronote (Ex.P2) are executed by the defendant and consequently decreed the suit. The learned first Appellate Court setting aside the findings recorded by the learned trial Court and dismissed the suit. The relevant findings read as under:-

"10. I carefully perused the pronote Ex.P2 and receipt Ex.P-3 myself in the light of the above submission. First of all the said documents filled by the plaintiff-respondent himself, when there I attest to the accuracy and authenticity of this document are large number of deed writers at Muktsar, but it is not understood why the document was not scribed from regular deed writer. It is undisputed, rather admitted that the plaintiff- respondent is a money lender. Naturally he would be well aware how to write-fill in the pronote and receipt and at which place the adhesive stamps are to be affixed. The perusal of Ex.P-2 and Ex.P- 3 shows that the stamps have been affixed at an unnatural place. It shows that the same were not affixed at the time when Gurpal Singh allegedly signed it. Moreover, no date or signatures of Gurpal Singh are thereon the said stamps. The other point which shows the falsity of the case of the respondent-plaintiff is that if infact Gurpal Singh appellant had received an amount of Rs.5000/- and he did sign in English script why the receipt of amount was not got recorded from him in his handwriting. Then most suspicious circumstance is that why the witnesses of alleged pronote and receipt did write in their own handwriting that Rs.25,000/- was received in their presence. It shows that these persons have signed the document later on at the behest of the plaintiff-respondent. They too have committed forgery. While committing a wrong conscience of men becomes the best and the worst evidence against him. He trembles. Moreover, there is a cutting in the date 28.6.85 written by Parmod Kumar. There is over writing in digit '6' and digit '2' and to make the matter clear the plaintiff attempted to add- Behari in the letter 'Panch' which has been made 'Panchi'. No explanation has been given by the plaintiff-respondent for their over-writings and forgeries. Even none of these made up witnesses were produced in witness box by the plaintiff-respondent. Had they appeared they could have been cross examined. So, until and unless, these persons were not examined by him and they were given up, neither due execution of the pronote and receipt can be said to have been proved nor the passing of consideration can be said to have taken place."

The plaintiff has not pleaded the advancement of loan of Rs.5,250/- vide cheque Ex.P1 dated 05.05.1982 in the plaint, it was so stated in the rejoinder only. A perusal of the pronote (Ex.P2) and the receipt (Ex.P3) shows that signatures of Gurpal Singh, the defendant are not on the stamps affixed. Though, there is no attesting witness on I attest to the accuracy and authenticity of this document the pronote part of the document but in respect of receipt part, Parmod Kumar Chuchra and Krishan Lal son of Daulat Ram are the two attesting witnesses. There is date underneath the signatures of Parmod Kumar Chuchra as well as over-writing whereas there is no date underneath the signatures of Gurpal Singh, the defendant. The amount of Rs.25,000/- mentioned in the endorsement signed by Krishan Lal has also overwriting. The stamp on the pronote part had the words written 12500/- as half of the amount of pronote. The stamps have been cancelled on the basis of writings which are in the hand of the person who has filled up the receipt and pronote. They are not in the hands of Gurpal Singh. There is no date mentioned under the signatures of the defendant who signed in English, whereas the date and the amount mentioned by the attesting witnesses. It is an unusual mode of execution of pronote. The manner of execution of pronote creates enough doubt in respect of execution of pronote and receipt by the defendant. It only confirms the finding recorded that the signatures of the defendant were obtained on blank papers and has been used for preparation of pronote and receipt.

The findings recorded by the learned first Appellate Court, that execution of the pronote (Ex.P2) and the receipt (Ex.P3) are not proved to be executed on the date and time purported and has been prepared on an already signed document, is based upon proper appreciation of evidence. The learned first Appellate Court has considered the entire evidence in minute detail. Even with the assistance of learned counsel for the parties, I have gone through the evidence and find that there is no error in the findings of fact recorded I attest to the accuracy and authenticity of this document by learned first Appellate Court which may warrant interference in the present Regular Second Appeal.

Dismissed.

(HEMANT GUPTA) JUDGE

OCTOBER 10, 2014

Law does not mandates the attesting witnesses to a document must also present at the time its registration under Registration Act, 1908

Om Prakash Dead Thru His Lrs Vs Shanti Devi and Ors in the Supreme Court on 5 January 2015

2015 (4) SCC 601; 2015 AIR (SC) 976

Transfer of Property Act, 1881, Section 123,
Registration Act, 1908,- Section 17 and 49
Gift deed duly attested by two witnesses and registered. Law does not mandates the attesting witnesses to a document must also present at the time its registration under Registration Act, 1908 (Para 9)
________________________________
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 20 OF 2015
[Arising out of SLP (C) No. 921 of 2014]

OM PRAKASH (DEAD) TH. HIS LRS. .. Appellant(s)
Vs.
SHANTI DEVI & ORS. ..Respondent(s)

J U D G M E N T
VIKRAMAJIT SEN, J.

1 Leave granted.

2 The Appellant before us was the Defendant in a suit filed by the Respondent-Plaintiff praying for a decree of mandatory injunction directing the Appellant to hand over vacant possession of the property in dispute, on the predication that the Respondent was the owner of that property. The Appellant has been successively unsuccessful in the three Courts below, viz., the Trial Court, where Respondent’s suit for mandatory injunction was decreed against the Appellant; the First Appellate Court, which dismissed Appellant’s First Appeal; and the High Court of Punjab & Haryana, which dismissed the Appellant’s Second Appeal.

3 Outlining the facts briefly, the Respondent-Plaintiff’s case before the Trial Court was that he was the owner-allottee of the property and had parted with possession of the property to the Appellant on a nominal licence basis.
The parties are closely related to each other – being brothers-in-law since the Appellant/Defendant was the husband of the Plaintiff’s sister. The Plaintiff pleaded that it had been agreed between them that as and when required by the Plaintiff the Appellant would vacate the property. However, despite the Plaintiff’s repeated requests the Appellant did not accede thereto; accordingly, the aforesaid suit came to be filed. Whilst admitting that he had initially been a licencee of the Respondent, the Appellant pleaded in his Written Statement that on 15.05.1970 the Respondent had executed a Gift Deed in his favour, thereby making him the owner of the property. The Appellant/Defendant also claimed that the Gift Deed had been registered in and by the Office of the Sub Registrar, Patiala, on 18.05.1970. In Replication, the Respondent-Plaintiff has denied execution of the Gift Deed saying that because of close relationship the Defendant may have obtained his signatures by misrepresentations, essentially admitting his signature on that document.

4 Concurrent findings of the Trial Court and the Appellate Court are to the effect that the Gift Deed had not been proved under Sections 68 and 69 of the Evidence Act; the evidence that had been led was found wanting as regards proof of execution of the Gift Deed. The High Court dismissed the Second Appeal finding no substantial question of law before it and no justification for interference with the findings of facts by the Courts below.

5 For facility of reference the relevant Sections of the Evidence Act are reproduced:
68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
69. Proof where no attesting witness found.—
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
90. Presumption as to documents thirty years old.—
Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the
particular case considers proper, the Court may presume that nthe signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation.—Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable."
This Explanation applies also to section 81.

6 The due execution and attestation of this Gift Deed is the sole point in issue before us. The Appellant has rested his case on the favourable presumption contained in Section 90 of the Evidence Act i.e. that the Gift Deed being thirty years old should be taken as having been duly executed and attested. The Appellant seems to have made little or no endeavour to prove the Gift Deed without the advantage of this presumption.
Under Section 90, before any question of presuming a document’s valid execution can emerge, the document must purport and be proved to be thirty years old.
The law surrounding the date of computation of the elapse of thirty-years stands long-settled, since the verdict of the Privy Council in Surendra Krishna Roy v. Mirza Mahammad Syed Ali Mutawali AIR 1936 PC 15, which held that the period of thirty years is to be reckoned, not from the date upon which the Deed is filed in Court but from the date on which, it having been tendered in evidence, its genuineness or otherwise becomes the province of proof. Generally speaking, although the date on which the document has been tendered in evidence or subjected to being proved/exhibited is the relevant date from which its antiquity is to be computed, we think it necessary to underscore that it should be produced at the earliest so that it is not looked upon askance and with suspicion so far as its authenticity is concerned.

8 Section 68 prescribes that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Section 123 of the Transfer of Property Act, 1882 mandates that a Gift Deed pertaining to immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 17 of the Registration Act, 1908 also requires that instruments of gift of immovable property “shall be registered.” Section 34, thereafter, requires the executants or their authorized representatives of the document executed for registration appear before the registering officer. However, the witnesses to a document need not also be the witnesses to its registration.
The pandect being Part X, comprising Sections 47 to 50 of the Registration Act would next be required to be adverted to. Section 47 adumbrates that the registered document will take effect from the date of its execution.
Section 48 is indeed significant in that it clarifies that a registered document will probatively prevail over oral agreements, except for an agreement or declaration which does not itself mandatorily require registration provided the oral agreement is accompanied by delivery of possession. The preeminent Section 49 declares that if any document despite requiring registration is not so done it shall not be received in evidence or attain any legal efficacy, except in the context of a suit for specific performance, or if it is intended to be used to prove any collateral transaction. We have ventured into this lengthy and arguably avoidable analysis to accentuate on two aspects –
(a) the imperative necessity to produce in evidence a written instrument where it exists; and
(b) that the registration of documents does not per se, ipso facto, render it impervious to challenge or and make its reception automatic in curial proceedings.
9 The Appellant/Defendant had led evidence of himself as DW1 as well as DW2 to DW5, none of whom were either of the attesting witnesses to the Gift Deed. It has also not been clarified whether the attesting witnesses or either of them was also witness before the Sub-Registrar when the Gift Deed was accorded registration. It should be noted that law does not mandate that the attesting witnesses to a document must also be present at the time of its registration under the Registration Act. Reasons remain recondite as regards this remissness or even as to their not being ‘found’ as postulated in Section 69, although there is a vague reference to both of them having died by the time the Defendant/Appellant had started recording his evidence.
Section 69 provides for “proof where no attesting witness found”. It is at once apparent that this provision anticipates a reasonable anxiety emerging out of the peremptoriness of Section 68, in that it addresses, inter alia, a situation where none of the attesting witnesses to a document (a gift deed, in this case) are alive at the time of the curial investigation thereof. Not leaving litigants forlorn for proof under Section 68, Section 69 places emphasis on handwriting(s) of the putative deceased or the ‘not found’ attestator(s), along with the signatures of the executant. We must be quick to elucidate that the position is akin to the reception of secondary evidence, in that the successful passage from the rigours of Section 68 can be met contingent upon the proved non-availability of the attesting witnesses to a document. Litigants are, therefore, not faced with an evidentiary cul-desac.
They can discharge their burden by proving, in the alternate mode and manners conceived by the Act, the signatures of the putative attestators along with the handwriting of the executant. The Appellant herein palpably failed in proving the signatures of the attestators to the Gift Deed, and, therefore, has pursued his case by evoking Section 90 as the cornerstone of his pleadings.
10 The Appellant has, in his effort to succeed before us, variously and discrepantly theorised the thirty-year statutory requirement. As one ground in his Appeal, the Appellant has pleaded for a relaxation of the thirty year period, admitting the tendering in evidence of the Gift Deed on 14.10.99 in his examination-in-chief/statement by which time only 29 years 5 months had elapsed. The plea for relaxation cannot be granted as the antiquity of the document is the very raison d’etre for it to be bestowed with the curial presumption that the signature and every other part of such document which purports to be the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. The Court could not have relaxed or discounted the short fall of seven months. As another, the Appellant has also pleaded that the period be calculated from 21.07.2000 the date of testimony of DW5, the Registration Clerk from the Office of the Sub Registrar, Patiala, who had deposed (unsuccessfully, as concluded by the Learned Courts below) as to the execution of the Gift Deed; he produced the copy of the Gift Deed available in the Sub Registrar’s Office. On the date of the deposition of DW5, thirty years had indubitably elapsed since the execution and/or the registration of the Gift Deed. Attempting again elsewise, the Appellant has submitted the proper date of calculation as the date of judgment of the Trial nCourt. As far as DW5 was concerned, he could only have, and which he did, prove the date on which the Gift Deed was presented for registration, i.e. 18.5.1970, thereby proving to that extent the antiquity of that Deed. If it crossed the thirty year period the Defendant may have succeeded in claiming the advantage of the presumption contained in Section 90 unless the relevant date would be the date of the recording of his statement. If the first attempt of the Defendant/Appellant before us, to prove the Gift Deed occurred on 21.7.2000, then we think that to be the proper and appropriate date from whence the thirty year period ought to be counted backwards. It also appears to us to be facially plain that the Clerk from the Office of the Sub-Registrar could only testify as to whether the document sought to be proved is in actuality was the one which was, in fact, duly registered, by producing the original records or if permissible by Rules by tendering a certified copy thereof. This witness could not possibly have said anything more. In the event, it would have been sagacious for the Defendant to have delayed the recording of his own statement beyond 18.5.2000 so as to inter any contention that the Gift Deed had been tendered in evidence after its attaining a thirty year vintage. Most often where the Courts countenance document which has been in existence for thirty years or more, the likelihood of either of the attestators thereof being alive is rather remote.
Once it is satisfactorily proved that the document is thirty years or more in age, Section 90 thereupon dispenses with the formalities of producing the executant and or the attestators thereto.
11 It appears that the registered Gift Deed was sought to be proved/exhibited by the Defendant himself. If this occurred prior to the Gift Deed attaining the age of thirty years then Section 90 of the Evidence Act, 1872 would not be of avail to the Defendant, but if the Defendant’s testimony came to be tendered and recorded thirty years subsequent to the execution of the Gift Deed, then the presumption attached to Section 90 could be taken advantage of. Lastly, it would logically follow that the contention of the Appellant/Defendant that the relevant date for computation of age in reverse should be the date of the judgment of the Trial Court is clearly incorrect.
12 The first and fatal stumbling block of the Appellant’s case, then, is that at the time of tendering of the Gift Deed before the Trial Court, the thirty-year maturation period provided by Section 90 was not satisfied, the Gift Deed having been tendered in evidence after around 29 and one-half years, since he had alluded to it in the course of the Defendant/Appellant examining himself unlike the stage of pleadings this incontrovertibly partook the nature of tendering evidence. The time prerequisite to even essay availing of the Court’s discretionary powers under Section 90 had not been met. Being a statutory requirement, Courts cannot alter the operation of the statute by reading into it as allowing a document aged 29 and one-half years to be open to the law’s presumption. The Judgment of the High Court below has considered the issue of this document’s eligibility under Section 90, and repudiated this submission, the document not even, echoing the words of Section 90, “purporting” to be thirty years old at the time of tendering. We hasten to add that even if the document purported or proved to be thirty years old, the Appellant would not axiomatically receive a favourable presumption, the Section 90 presumption being a discretionary one.
13 While clarifying law as we have striven to do above, since the Gift Deed in question was tendered in evidence five months prior to having become thirty years old, the Appeal is devoid of merits. The Appellant did not even attempt to prove the Gift Deed in any manner known in law.
14 The Interim Order is recalled. The Appeal is dismissed but we desist
from imposing costs.
..............J. [ANIL R. DAVE]
..............J. [M.Y. EQBAL]
..............J. [VIKRAMAJIT SEN]
New Delhi
January 05, 2015.