IN THE COURT OF THE CIVIL JUDGE AT AIZAWL

Money Suit No.5/2019.

Smt. Lalvungi,
W/o lalrokima,
R/o, Zemabawk, Aizawl.
...Plaintiff.
-Vrs-

Sh. Lalrokima,
S/o Laldingliana,
R/o Republic Veng, Aizawl.
...Defendant.

IN THE MATTER OF:

Written Argument on behalf of the Defendant.

The Written Argument of the Defendant runs as follows:

1. That the facts of the case in brief is that Lalrokima and Lalvungi got married
in 2012 under the Mizo customary Law, thereafter, in December 2012
Lalrokima joined Lalvungi’s family as Lalvungi and her mother were the only
surviving members in the family as such Lalrokima lived with them till they
got divorced on 2.01.2016. The children whose names Lalmama and Lalkimi
were born out of the wedlock on 01.09.2013 and 02.07.2015 respectively.
During that time Laldingliana , father of Lalrokima intended to purchase a
motor vehicle ie. Taxi for the use of Lalrokima but they were short of money.
Lalrokima informed Lalvungi that he was in need of financial support for
purchasing the said vehicle. Lalrokima also informed her that if he can receive
financial support from them, he will repay the same as soon as possible. On
10th Jan. 2014, Lalvungi and her mother decided to contribute Rs 1,00,000/-
for the same and the same amount was withdrawn from Lalvungi’s mother
Bank Account on the same day. However the remaining sum was spent by
Laldingliana, father of Lalrokima. After years, there had been serious
problems between the two parties i.e. Lalrokima and lalvungi, the marital life
became unhappy which resulted divorced on 02.01.2016. Then, Lalrokima left
Lalvungi and returned to his natural parents. On divorce, Lalrokima had taken
the taxi alongwith him without paying any sum to Lalvungi and all the

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 benefits earned from the said vehicle were also enjoyed by him. Lalvungi’s
family was not happy with Lalrokima and the matter was conveyed to
Lalrokima by asking him to repay the amount spent by Lalvungi’s family. On
10th Feb.2017 a total sum of Rs. 20,000/- was paid to Lalvungi, at that time, a
Promissory Note to pay the remaining sum within one year was executed by
Lalrokima. However, on several demands the remaining sum was left unpaid
even several demands.
Thereafter, even after the time stipulated in the said P.N i.e. February,
2017 has lapsed, the Defendant repaid only Rs.20,000/- (Rupees twenty
thousands) to the Plaintiff thereby leaving a balance amount of Rs.80,000/-.
The Plaintiff, who is a single mother looking after her two children and her
aged mother, therefore, approached the Hon’ble Court for recovery of her
money from the Defendant.
2. The case was contested by the Defendant by submitting a Written Statement
wherein he stated that he had not borrowed Rs 1 Lakh from the Plaintiff.
3. Thereafter, on 15th January, 2019 the Court frames the following issues;
a) Whether the suit is maintainable in its present form and style?
b) Whether the Defendant Lalrokima borrowed a sum of Rs. 1,00,000/- from
the Plaintiff Lalvungi to purchase a taxi?
c) Whether the Defendant after payment of Rs. 20,000/- to the Plaintiff has
an outstanding dues amounting to Rs.80,000/- towards the Plaintiff?
d) Whether the Plaintiff is entitled to the reliefs(s) claimed? If so, to what
extent?

The Defendant produced as many as three witnesses including himself during

the proceedings of the case while the Plaintiff also produced as many as three
witnesses including herself to the Plaintiff’s side.

4. The Defendant’s witness namely Laldingliana, Father of Lalrokima deposed

that on 9th Jan, 2014 he had informed his son Lalrokima to request the
Plaintiff’s mother to contribute certain amount for purchasing a Taxi due to
their short of money. On 10th Jan, 2014 Rs 1 lakh was paid to him by his son
Lalrokima and the total cost of the said Taxi was Rs. 3.4 Lakhs including
Registration, Insurance and for buying a taxi permit. Out of the total cost Rs 1
Lakh was contributed by the Plaintiff’s mother and the rest was paid by him.
He strongly denied the allegation made by the Plaintiff that Lalrokima’s father
spent the remaining sum out of Rs 1 Lakh contributed by the Plaintiff for
which the said sum was insufficient for buying a taxi and there was no sum
left after buying a taxi. He also denied that the implication made by the
Defendant that after Lalrokima had left his wife he never pay any sum to his
wife was false implication. He also deposed that Lalrokima shows

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consideration to his wife and his two children after he left them by paying
money for their maintenance from the money earned by him till now.

5. The Defendant’s witness namely Liankunga deposed that he did not know
that whether the Defendant had borrowed Rs 1 Lakh from the Plaintiff but
he was present when the plaintiff’s ‘Palai’ Lalzuala came to the
Defendant’s house. He deposed that he witnessed when Lalrokima paid
Rs.20,000/- to the Plaintiff’s Palai and put his signature to a Promissory
Note/ Intiamna. He also deposed that the said Lalrokima did not write the
contents of the said document but merely put his signature.

6. The defendant produced and exhibited the following documents to support

his case:
Ext. P-1 is a copy of Motor Registration (registered in the name of
Lalrokima),
Ext. P-2 is a copy of Motor Insurance Certificate
Ext. P-3 is a vehicle sale certificate from maruti dealer

7. Now going to the issues :

The First issue is whether the suit is maintainable in its present

form and style? In this regard the defendant has submitted the following
arguments:

The suit is bad for non – joinder of parties: That the instant suit is
bad for non-joinder of necessary parties. In this connection, the Plaintiff’s
mother Lalkhumi being the instrument that authorized the contribution of
Rs. 1 Lakh for buying a Taxi for the use of Lalrokima is a necessary party
to the instant suit. However, the same has not been impleaded as a party
to the instant suit and the same ought to be dismissed.

Again, Ladingliana father of Lalrokima also being the instrument who

contributed Rs. 2.5 Lakh for purchasing a Taxi who also sent his son
Lalrokima to request the Plaintiff’s mother Lalkhumi to contribute certain
amount for purchasing the same is a necessary party in the instant suit.
However, the same has not been impleaded as a party and as such the
same is liable to be dismissed.

Order 1, Rule 9 has the provision relating to Non- Joinder of parties,

the Order reads as under:
“No suit shall be defeated by reason of the misjoinder or non- joinder of
parties, and the court may in every suit deal with the matter in controversy so
far as regards the rights and interest of the parties actually before it”.

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However, the proviso said that “nothing in this rule shall apply to non-joinder
of a necessary party”.

Necessary parties are those parties in the absence of whom no

effective decree can be passed by the court. Since the Plaintiff’s mother
Lalkhumi and the defendant’s father Laldingliana are the necessary parties in
the instant suit and in their absence no effective decree can be passed and as
such the suit is bad for non-joinder of parties.

Reliance is placed on Sant Kumar V. Arya Samaj Dharamsala, AIR

2003 NOC 172(HP) The Supreme held that, Suit for want of necessary
parties being infirm deserves to be dismissed as Plaintiff cannot be permitted
to rectify mistake.
Also in State of U.P V. Reshma Devi, AIR 1974 All 257 at 2183 It was
held that, The court will dismiss the suit if the necessary parties are not
impleaded.

The suit is barred by limitation: In this connection, the verbatim of

relevant provision of sections 18(1) and 19 of The Limitation Act is produced
hereunder :

Section 18: Effect of acknowledgment in writing:

(1) Where, before the expiration of the prescribed period for a suit of
application in respect of any property or right, an acknowledgment of liability
in respect of such property or right has been made in writing signed by the
party against whom such property or right is claimed, or by any person
through whom he derives his title or liability, a fresh period of limitation shall
be computed from the time when the acknowledgment was so signed.

Section 19: Effect of payment on account of debt or of interest on

legacy :
Where payment on account of a debt or of interest on a legacy is made
before the expiration of the prescribed period by the person liable to pay the
debt or legacy or by his agent duly authorised in this behalf, a fresh period of
limitation shall be computed from the time when the payment was made.

The Plaintiff in the instant suit mentioned that the first cause of action
was arose on 10/01/2014 and the second cause of action was arose on
10/02/2017 when Lalrokima executed a P.N/ Intiamna. As per Sections 18(1)
and 19 of Limitation Act, the acknowledgement must be made on or before
the expiry of the period of limitation. In the instant suit, the
acknowledgement should be made on or before 9/01/2017 to revive the
agreement. However, the same was made after the expiry of the limitation

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period on 10/02/2017 when the Defendant executed a P.N/ Intiamna and the
said acknowledgement does not revive the agreement and as such the instant
suit ought to be dismissed.

The Plaintiff has no locus standi to file the instant suit: That the
Plaintiff’s mother Lalkhumi deposed that the sum was withdrawn from her
Bank Account on 10/01/2014 when her daughter Lalvungi informed her that
the same was needed for purchasing a Taxi for the use of Lalrokima because
Lalrokima’s father was in short of money and she decided to contribute for
the same. It is clear from the fact that the Plaintiff did not contribute the sum
but her mother and as such she has no Locus Standi to file the instant suit.

That the Plaintiff in her written argument stated that she has a right to
inherit her father’s property by being an unmarried daughter as per the
provision of Sections 31(4) and 35 of The Mizo Marriage, Divorce and
Inheritance of Property Act, 2014 and the sections runs as follows:
Section 35: “A divorced daughter who has returned to her father’s or mother’s
house will be treated as an unmarried daughter for the purpose of
inheritance”.
Section 31(4): “ If the head of the family has no son, then the property will
be divided equally the surviving wife of the head of the family and the
unmarried daughters who are living with the surviving wife”

In this connection, it is contended that the Plaintiff and the Defendant

got married in 2012 and got divorced in 2016 and the sum i.e. Rs 1 Lakh was
contributed on 10/01/2014 that means the alleged first cause of action was
arose during the subsistence of their marriage. It is clear from the fact that
the Plaintiff was not an unmarried daughter when the sum was contributed
and as such she has no right to inherit her father’s property.

And in this connection, it is pertinent to mentioned Section 23 of The

Mizo Marriage, divorce and Inheritance of Property Act, 2014 and the section
reads as follows: Ownership right of head of family over properties:
“All the movable and immovable properties inherited and acquired, which is
not registered in the name of any member of the family living under the same
roof are deemed to be the property of the head of the family”.

In the instant suit, the sum which has been paid out of the Plaintiff’s
mother Lalkhumi’s Bank Account, the same cannot be said to be the Plaintiff’s
father’s property as per the provision of the said section. As per the provision
of section 31(4) of the said Act, the unmarried daughter can inherit only her
father’s property and as such the said sum was her mother’s property, she
has no right or authority in the said sum. Owing to this, she has no Locus
Standi to file the instant suit.

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Promissory Note not duly stamped: That the instant suit is based solely
on the Promissory Note / Intiamna executed by the Defendant on 10/02/2017
but the same is not duly stamped and cannot be received as evidence. For
the P.N/ Intiamna to be admissible as evidence and to be based for the suit,
the provision of Section 35 of The Indian Stamp Act,1899 must be
complied with. The section reads as under:
Instrument not duly stamped inadmissible as evidence, etc – No
instrument chargeable with duty shall be admitted in evidence for any
purpose by any person having by law or consent of parties authority to
receive evidence, or shall be acted upon, registered or authenticated by any
such person or by any public officer, unless such instrument is duly stamped.
Provided that –
Any such instrument not being a receipt, or a bill of exchange or
promissory note, shall, subject to all just exceptions, be admitted in evidence
on payment of the duty with which the same is chargeable, or in the case of
an instrument insufficiently stamped, of the amount required to make up such
duty, together with a penalty of a sum equal to ten times the amount of the
proper duty or deficient portion thereof.

As per the provision of the said section the instant suit is liable to be
dismissed.

Reliance is placed on :
Alimana Sahiba V. Subbarayudu, AIR 1932 Mad 693
Held: Under the provision of Section 35 of The Stamp Act, therefore, it must
be taken that this promissory note was not duly stamped and accordingly if
any question arose as to its admissibility in evidence the same may have to
be held be inadmissible.

Also in T.Bhaskar Rao Vs. T.Gabriel AIR 1981

Para “5” Section 35 of The Stamp Act, mandates that an instrument
chargeable with duty should be stamped so as to make it admissible in
evidence. (see also Chuni Lal Tukki Mal Vs. Firm Mukat lal Ram
Chandra, AIR 1968 All 164, Chandra Sekhar Misra Vs. Gobindra
Chandra Das AIR 1966 Ori 18)

In view of the above, the present issue ought to be decided in favour

of the Plaintiff.

The second issue is whether the defendant Lalrokima borrowed a

sum of Rs. 1,00,000/- from the Plaintiff Lalvungi to purchase a Taxi?
It is contended that Defendant had not borrowed the said amount from
the Plaintiff since the said amount was paid out the Plaintiff’s mother’s Bank

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Account. The Defendant did not deny in his Examination that he had paid Rs
20,000/- and executed a Promissory Note / Intiamna when the Plaintiff
witness Pu Lalzuala came to his house on 10/02/2017. However, he deposed
that he had paid the same for maintenance of his wife and two children. He
also deposed that he had put his signature on a document because in the
early morning, when the said document was executed, his wife ranged and
told him that if he did not do the same he will never be a guardian of his two
children. The Plaintiff being a Taxi driver and uneducated being afraid of
losing his two children did the same as told by his wife.

In this connection, it is pertinent to mention the provision of sections

2(h) and 10 of The Indian Contract Act, 1872. The sections talk about a
valid contract and the sections run as follows:
Section 2(h) “A contract is an agreement enforceable by law”.
Section 10 “ All agreements are contracts if they are made by free consent
of the parties competent to contract, for a lawful consideration and with a
lawful object, and are not hereby expressly declared to void”
As per the provisions of the said sections, for a contract to be
enforceable, there must be an agreement made by free consent of the
parties. However, in the instant case, the P.N / Intiamna was executed by the
Defendant under threat and the said document is the sole basis for the
instant suit and as such is void and unenforceable.

That during the subsistence of marriage the story of borrowing money

had never been recited by the Plaintiff and her mother, but after they got
divorced, the same was recited and the Plaintiff and her mother always asked
him to repay the sum contributed for the same.

That the Defendant and his father Laldingliana deposed that they
asked the Plaintiff’s mother to contribute certain amount for purchasing a Taxi
for the use of Lalrokima due to their short of money. However, the Plaintiff’s
mother Lalkhumi replied that they don’t need to repay the same for which her
Son-In-Law Lalrokima was the bread earner and who will look after even
herself. She also said that she was very happy that she was in a position to
give hand to her Son-In-Law. Owing to this, the Defendant never thought
that he had borrowed the said amount from his Mother-In-Law.

In view of the above, the present issue ought to be decided in favour

of the Plaintiff.

For the sake of brevity, the Third Issue and the Fourth Issue may be
taken together which are (c) Whether the Defendant after payment of
Rs. 20,000/- to the Plaintiff has an outstanding dues amounting to

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Rs. 80,000/- towards the Plaintiff ? (d) Whether the Plaintiff is
entitled to the relief(s) claimed? If so, to what extent ?.
That when the Plaintiff gave Rs.20,000/- to the Plaintiff, it does not
mean that he admitted his indebtedness towards the Plaintiff. He had paid the
same amount only for maintenance of his wife and two children.
That the Defendant deposed that since he bought a Taxi he is on
regular duty without failing any day except Sunday and his day off till date.
He deposed that at least Rs.500/- was submitted to his wife every day and he
was on duty for five(5) days a week. Then, the money submitted by him to
his wife will not be less than Rs.2500/- within a week and Rs. 1,20,000/-( 1.2
Lakh) within one year. Thus, the taxi was bought in 2014 and they got
divorced in 2016, the money submitted to his wife within two years must not
be less than Rs.2,40,000/- ( 2.4 lakhs) which is more than the money
contributed by the Plaintiff’s mother (i.e. Rs.1 Lakh). Even if the Defendant
had borrowed Rs 1 Lakh from the Plaintiff’s mother, he had already paid the
same and as such there is no remaining amount of money indebted by the
Defendant towards the Plaintiff i.e Rs 80,000/-. Therefore, the Plaintiff is not
entitled to the relief(s) claimed.
In view of the above, the instant suit ought to be decided in favour of
the Defendant.

It is prayed accordingly.

Submitted by:

(S.VANLALHRIATA)
Counsel for the Defendant