Memorandum is only an evidence of bargain already materialised.

Defendant in O.S.No.1203 of 1979, on the file of III Additional Subordinate Judge’s court, Coimbatore, is the appellant.

2. The respondents, who are plaintiffs in the suit sought for the following reliefs against the defendant:

(a) for recovery of Rs.21,050 with subsequent interest till date of payment to be deposited by the defendant within a date to be fixed by court;

(b) ordering the sale of the properties mentioned in the schedule and adjust the sale proceeds towards the amount due to the plaintiffs;

(c) in case the sale proceeds are not sufficient to discharge the decree amount, granting a personal decree against the defendant,

(d) directing the defendant to pay the costs of the suit; and

(e) for such further and other reliefs as this Court may deem fit and proper under the circumstances of the case."

In the body of the plaint it is stated that on 25. 1975. the defendant executed a promissory note for Rs. 15.000 in favour of one Kandaswami, the husband of 1st plaintiff and father of plaintiffs 2 to 8 for valid consideration, agreeing to repay the same on demand with interest at 12% per annum. It is also said that after execution the said promissory note, the defendant deposited the title deeds relating to his property on 6. 1975, and a memorandum to that effect was also executed on the same date in favour of the said Kandaswami at Coimbatore Town. The documents deposited by the defendant were all produced along with the plaint. It is said that the defendant did not pay any amount either towards principal or interest. Since the defendant was an agriculturist he was entitled to the benefits of various Acts passed by the Government of Tamil Nadu. After the death of Kandaswami, the plaintiffs became entitled to claim the entire amount due from the defendant. A lawyer’s notice was issued, requesting the defendant to pay the amount, but the same was not paid. It was under the above circumstances, the suit was filed for the reliefs stated above.

3. In the written statement filed by the defendant/appellant, it is said that he did not admit the execution of the promissory note. According to him, the suit is not maintainable, without a succession certificate obtained under Sec.214(1) of the Indian Succession Act. It was further contended by the defendant that he borrowed from one Kandaswami a sum of Rs. 12,000 at the time when he was in dire need of funds and he was asked to sign in stamped blank papers and also another blank paper. The late Kandasamy wanted to peruse the title deeds and for the said purpose the same was handed over to him. The allegation that the title deeds were deposited with intent to create a mortgage is denied. It is also said that he has paid the interest regularly for three years, for which also no receipt was given. It is further stated that the plaintiffs and Kandaswami had fabricated the alleged promissory note and the memorandum which are not true or genuine and are unenforeceable.

4. The trial court took oral and documentary evidence after suggesting issues. On the side of the plaintiffs, Exs.A-1 to A-21 were marked and the 1st plaintiff was examined as P. W. 1 On the side of the defendant, no document was produced, but he examined himself as D.W.I. After considering the entire evidence on record, the trial court decreed the suit for an amount of Rs.20,287.50 with costs, and the defendant was given two months’ time to discharge the debt. It was also held that the suit was not barred by limitation. It was also found that the defendant has deposited the title deeds with intent to create a mortgage and the amount was also borrowed by him.

5. The matter was taken in appeal before the lower appellate court in A.S.No.155 of 1983, on the file of the District Court, Coimbatore. The lower appellate court also confirmed the judgment of the trial court and dismissed the appeal. The concurrent judgment is assailed in this second appeal on the following substantial questions on law:

" 1. Whether the cou