SANKARAN EZUTHACHAN Vs. VELAYUDHAN EZUTHACHAN

JUDGEMENT

(1.) THESE appeals concern a motor with its accessories,and the controversy is whether it was pawned to the appellant by the respondents or only deposited by them with him for gratuitous safe keeping.The lower courts accepted the respondent's version of mere deposit,and so decreed their suit for its recovery,O.S.No.1270 of 1968,and dismissed the appellant's suit for recovery of the debt,O.S.No.4 of 1969.

(2.) ADMITTEDLY the motor in question belongs to the respondents and they would be entitled to possession thereof unless the appellant establishes his special property in them as a pawnee.According to the learned counsel for the appellant the lower courts brushed aside the evidence in this regard,namely,certain entries in the appellant's books of account,Exts.D2,D3,D9 and D10,by an erroneous application of the rule of evidence governing entries in account books besides omitting totally to consider Exts.C1 and D2(b)wherefore those courts did not have a correct perspective of the cases on hand.These submissions appear to be well founded and so,despite concurrent findings of fact entered by the lower courts,it is my task to assess the evidence afresh without looking for any assistance from the lower courts 'judgments.

(3.) P .W.5 admits that Ext.D5 is a letter written by him(it is on a letter paper with his name printed thereon ).By that letter,informing the appellant that the idea is to register the sale deed(to be executed)by his wife,Devaki,the next day,P.W.5 directed the appellant to credit in the account of P.W.5 the balance sale price of Rs.2,000 agreed to be paid by the appellant instead of paying it in cash.This letter,according to D.Ws.1 and 2,was brought to the appellant on 8th July 1967 by the second respondent.This letter is undated.P.W.5 claims that the said letter was written as required by the appellant and what is stated therein is not true.He,immediately after the appellant filed O.S.No.4 of 1969 on 1st January 1969,on 5th January 1969 swore an affidavit and the defendants in that suit(respondents here)filed it in court in that suit,on 10th January 1969.In that affidavit marked Ext.C1(neither indexed nor adverted to by the lower courts)P.W.5 swears that he on 29th December 1968,( that is,after the respondents filed O.S.No.1270 of 1968 on 18th December 1968)accompanied the appellant to advocate Shri Kunnath Balakrishna Menon's residence where he,as required by the appellant,copied down Ext.D5 letter from a draft given to him on a sheet of letter paper(with his name printed thereon)he had taken from his letterpad and carried to the Advocated residence for that purpose(!)also at the behest of the appellant,and that what is stated therein(Ext.D5)is untrue.As P.W.5 he says that Ext.D5 letter was written in the manner stated above in order to be of use to the appellant to evade payment of sales tax - - how it would be of any use for that purpose is beyond my comprehension.He also swears that he can 't remember whether on 10th July 1967 he paid to the appellant Rs.2,000 in cash though he adds that it might be possible but then,he is unable to say about the source therefor.His explanation of Ext.D5 letter seems to be a fanciful story.Nothing turns on the statement in Ext.D5 that the intention is to 'register '( and not to 'execute ') the document the next day,for it is common knowledge that people in this country speak of 'registering a document 'very often to denote 'execution and registration ' ;.