IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 AS.No. 599 of 1999(F) --------------------- AGAINST THE JUDGMENT DATED 30.3.1996 IN OS.108/1993 of SUB COURT, THIRUVALLA .................... APPELLANT/PLAINTIFF: ----------------------- A.N.KAMALAMMA, EDATHITTA VEETTIL, THEKKUMBHAGAM MURI, NIRANAM, THIRUVALLA. BY ADV. MR.R.KRISHNA RAJ RESPONDENTS/DEFENDANTS: -------------------------------- 1. K.R.VIJAYAN PILLAI, KARACKADUPUTHEN VEETTIL, BUDHANOOR MURI, FROM KARAKKATTUTHUNDIYIL, MANNAMTHOTTUVAZHI, PADINJATTUM MURI, NIRANAM VILLAGE, THIRUVALLA. 2. DHANYA (MINOR), D/O.K.R.VIJAYAN PILLAI, KARACKADUPUTHEN VEETTIL, BUDHANOOR MURI, FROM KARAKKATTUTHUNDIYIL,MANNAMTHOTTUVAZHI, PADINJATTUM MURI, NIRANAM VILLAGE, THIRUVALLA. REPRESENTED BY THE 1ST RESPONDENT. 3. BHANUMATHIAMMA, KAKKANATTUTHUNDIYIL VEEDU, PADINJATTUM MURI, NIRANAM VILLAGE, THIRUVALLA. ADV. MR.MVS.NAMBOOTHIRY FOR R1 & 2 MR.R.VINOD FOR R1 & 2 MR.SATHISH NINAN FOR R3 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- A.S.No.599 of 1999 - F --------------------------------- Dated this the 17th day of March, 2010 J U D G M E N T The plaintiff in O.S.No.108 of 1993 on the file of the Sub Court, Thiruvalla, is the appellant. Suit is filed for money based on a promissory note. The court below dismissed the suit. Hence the appeal. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. The case of the plaintiff is that deceased Mayadevi availed a loan of Rs.40,000/- from the plaintiff agreeing to repay it within a short time. Deceased Mayadevi executed a promissory note on 19.7.1992 agreeing to repay the amount as and when demanded. Mayadevi expired on 29.12.1992. Plaintiff alleged that since Mayadevi expired within a short period she demanded money from the legal heirs of deceased Mayadevi. Legal heirs did not repay the amount. Therefore a lawyer notice was issued on 24.2.1992 demanding the sum. Since the amount was not paid even after lawyer notice, the suit was filed. 3. First defendant is the husband of deceased Mayadevi. Second defendant is her minor daughter represented by father, A.S.No.599 of 1999 - F 2 guardian. The additional 3rd defendant is the mother of deceased Mayadevi. The first defendant filed written statement in his individual capacity and as the guardian of the minor second defendant. The first defendant though filed a written statement did not contest the suit and remained absent. The third defendant filed a written statement denying the allegations in the plaint and also denied the allegation that her daughter received a sum of Rs.40,000/- and that she had executed a promissory note on 17.9.1992. According to her, the promissory note is a concocted one. 4. The evidence in this case consists of oral evidence of PW1, PW2 and DW1. The plaintiff produced Exts.A1 to A3. Ext.B1 was marked on the side of the defendant. 5. Plaintiff as PW1 testified before the court that she is a school teacher; the deceased Mayadevi on 19.7.1992 borrowed a sum of Rs.40,000/- from her and executed Ext.A3 promissory note on 19.7.1992. On 29.12.1992 Mayadevi expired. She testified that since Mayadevi is no more, she demanded money from the legal heirs of deceased Mayadevi. Since no payment was made the plaintiff issued lawyer notice demanding payment. A.S.No.599 of 1999 - F 3 6. Deceased Mayadevi was a Mahila Pradhan Agent and her husband was a village assistant during the relevant time. Both of them are having income from their avocation. PW1 further testified that Rs.40,000/- paid to deceased Mayadevi was the amount she got from her father towards her share. She also testified that Mayadevi wanted to purchase a property for Rs.60,000/-; that Mayadevi told PW1 that a third person had already offered Rs.20,000/- and she need Rs.40,000/- for purchasing the property. She also testified that her father was an employee of Pampa Sugar Factory; Rs.40,000/- paid by her father is the portion of the retirement benefits disbursed to him at the time of retirement. She further testified that she wrote Ext.A3 and the deceased Mayadevi and two witnesses mentioned in Ext.A3 affixed their signatures. 7. The evidence of PW1 is supported by the evidence of PW2. PW2 is a witness to Ext.A3 promissory note. PW2 was examined on the side of the plaintiff in the light of the contentions raised by the third defendant that Ext.A2 is a concocted document. PW2 testified that he accompanied Mayadevi to the house of the plaintiff at her request; he stood as A.S.No.599 of 1999 - F 4 a witness to Ext.A3 and that he saw deceased Mayadevi receiving Rs.40,000/- from the plaintiff. He also testified that deceased Mayadevi and the brother of the plaintiff affixed their signatures in Ext.A3; plaintiff herself had written the contents of Ext.A3 and also witnessed the payment of Rs.40,000/- to deceased Mayadevi. DW1 when examined had changed her stand. She testified before the court that she is not in a position to say whether Ext.A3 was executed by her daughter and that she had no acquaintance with the signature of her deceased daughter. She admitted that deceased Mayadevi had availed a loan of Rs.20,000/- from K.G.Chacko; he filed O.S.No.17 of 1993 for realisation of the said amount; the suit was decreed and further deposed that the property covered by Ext.B1 settlement deed was attached in execution of the decree. In fact her version that deceased Mayadevi availed a loan from K.G.Chacko strengthen the case of the plaintiff. It is the definite case of the plaintiff that deceased Mayadevi availed Rs.40,000/- from her and Rs.20.000/- from a third person for the purpose of purchasing a property. She also testified that she is unable to identify the signature and handwriting of her daughter. The oral evidence A.S.No.599 of 1999 - F 5 tendered by third defendant, who is the mother of the deceased, does not inspire confidence of the court. The stand taken by the third defendant, mother is directly against her contentions in the written statement. The issue to be examined is as to whether Ext.A3 pro-note was executed by deceased Mayadevi in favour of the plaintiff or not. Plaintiff was examined the witness. PW2 was also examined. Nothing has been brought out in examination to discredit the creditworthiness of the plaintiff and her witness. The court below ought to have relied on the evidence of PWs 1 and 2 and ought to have passed a decree for realisation of money as claimed by the plaintiff, instead the court below discussed various irrelevant facts and circumstances which are immaterial for deciding the question whether Ext.A3 pro-note was executed by deceased Mayadevi or not. The source of income of the plaintiff, necessity of deceased Mayadevi to borrow the amount and capability of the deceased Mayadevi to repay the amount in case the money is borrowed are discussed by the court below in detail. The finding and observations made by the court below are against the facts, circumstances, evidence and legal position. The court also did not taken into consideration the discrepancies A.S.No.599 of 1999 - F 6 in the pleadings and evidence of the third defendant who contested the suit. While examining DW1, she spoke directly against her defence taken in the written statement. The court below failed to take note of the relevant aspects and dismissed the suit. The first defendant who is the husband of the deceased Mayadevi in his written statement filed on behalf of the second defendant as well, pleaded that he has no objection in realising the borrowed amount from the properties if any left behind by deceased Mayadevi. In the result, the decree and judgment passed by the court below are set aside and the plaintiff is allowed to realise a sum of Rs.42,500/- with interest at the rate of 9% from the date of suit till the date of decree and future interest at the rate of 6% from the date of decree till realisation. Appeal is allowed with cost throughout. HARUN-UL-RASHID, JUDGE. bkn/-