Ponnuswami Chettiar vs Kailasam Chettiar

The plaintiff in S.C.S. No. 61 of 1945 on the file of the District Munsiff''s Court, Kulitalai, applies to revise the order of the learned District

Munsiff dismissing his suit brought for recovery of Rs. 209-8-0 from the respondent. The respondent borrowed from one Nallvangalammal a sum

of Rs. 100 on 2nd May, 1940 and a sum of Rs. 90 on the 24th July, 1940 agreeing to pay the amounts with interest at six per cent. per annum.

Nallvangalammal died and the plaintiff claimed to be her heir and though this fact was not admitted, it is not necessary any longer to deal with this

objection because the plaintiff obtained a succession certificate in respect of the suit claim.

In the plaint it was alleged that those two loans were evidenced by two documents described as hand-letters. They were admittedly unstamped.

It appears that before the trial stamp duty and penalty were levied by the Court on the footing that they were bonds.

The defendant admitted the execution of the two documents, but pleaded that in substitution of his liability under them he had executed a

promissory note-on 29th April, 1944, and had made payments towards the promissory note and there was only a sum of Rs. 40 still payable for

the principal of the loan and interest.

At the trial neither party let in any evidence. The defendant apparently gave up his plea in defence, the onus of establishing which certainly lay on

him; but the defendant raised the contention that the suit was not sustainable on the two documents because they were inadmissible in evidence for

any purpose as they were unstamped. The learned District Munsiff agreed with this contention and dismissed the suit.

It is not necessary for me to decide as to the exact nature of these two documents to determine whether they are admissible in evidence.

Assuming that these two documents could not have been legally admitted in evidence, nevertheless it is contended for the petitioner by Mr. M.S.

Vaidhyanatha Aiyar, and I agree with his contention, that as the defendant had admitted the execution of the documents and had only pleaded a

substitution of liability by the execution of another promissory note and a partial discharge towards it, there was no necessity for the plaintiff to

adduce proof of his claim by seeking to get the two documents admitted in evidence. In other words the plaintiff will be entitled to a decree on the

failure of the defendant to make the pleas set up by him in defence. The contention of the petitioner is supported by the observations of

Ananthakrishna Ayyar, J., in Alimane Sahiba Vs. Kolisetti Subbarayudu, with which I respectfully agree. The learned Judge therein points out after

referring to the provisions of Section 58 of the Evidence Act that when the fact of an execution of a document is admitted it need not be proved

and this would be so even when the document in question is not admissible on account of any provision of the Stamp Act.

I therefore set aside the decree of the learned District Munsiff dismissing the suit. There will be a decree in favour of the plaintiff for the amount

claimed with costs. The petitioner will also be entitled to costs in this revision petition from the respondent.