IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 RSA.No. 571 of 2009() --------------------- RFA.30/2004 of II ADDL. DISTRICT COURT, KOLLAM OS.321/1999 of MUNSIFF -MAGISTRATE COURT, PARAVOOR .................... APPELLANT/APPELLANT/2ND DEFENDANT ---------------------------------------------------- K.LALITHAMMA, AGED 82 YEARS KANNATTAZHIKATHU THEKKEPUTHAN VEEDU KAMPALLIKUNNAM,CHATHANNOOR, MEENAD VILLAGE,KOLLAM TALUK. BY ADV. SRI.K.KARTHIKEYA PANICKER SMT.DAYA K. PANICKER RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1, 3, 4 AND 5 ------------------------------------------------------------------------------------------------------------- 1. THE BRANCH MANAGER, STATE BANK OF TRAVANCORE, CHATHANNOOR. 2. MADHAVAN UNNITHAN, ASSARIVILA VEEDU ERAM NORTH WARD,KOIPAD, CHATHANNOOR. 3. K.KASTHURIBHAI,CHITHRALAYAM, VADAKKEVILA,KOLLAM. 4. K.RETNAMAI DEVI, ALAKANANDA, PATTATHANAM, KOLLAM. 5. K.RAVINDRANATH ,ASSARIVILA VEEDU, ERAM NORTH WARD,KOIPADU,CHATHANNOOR P.O.,KOLLAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1253 OF 2009 IN R.S.A. NO. 571 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 24.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 571 of 2009 ---------------------------------------- Dated this the 24th day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree and in R.F.A No. 30/2004 on the file of the II Additional District Court Kollam which arises from the judgment and decree in O.S. 321/1999 on the file of the Munsiff-Magistrate, Paravur. The suit was filed by the 1st respondent -Bank herein as plaintiff for realisation of money . The 2nd defendant in the suit is the appellant herein. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. According to the plaintiff-Bank, the defendants 1 to 4 are the legal heirs of late N. Parameswaran Pillai who had availed a cash credit loan of Rs. 25,000/- from the plaintiff -Bank. The said Parameswaran Pillai died on 11.3.1999 and all of his assets were inherited by defendants 1 to 4. The suit was filed for realisation of Rs. 27,687/- with interest from the assets of Parameswaran Pillai. Defendant Nos 1, 3 and 4 were set exparte. 3. The 2nd and 5th defendants, in the written statement, admitted that 10.5 Cents of properties along with all improvements therein in Re- survey No. 229/4 of Meenadu Village was under the joint ownership and possession of the 2nd defendant and late Parameswaran Pillai that the 2nd R.S.A. No.571 of 2009 -2- defendant and late Parameswaran Pillai jointly executed a partition deed No. 1617/1955 and as per the terms an extent of 71.5 cents of property was allotted to the 2nd defendant that the plaintiff-bank has no right to realise any amount from the property comprised in re-survey No. 229/4 &b 229/5 of Meenadu village. It is also contended that an extent of 13.5 cents in Re-survey No. 229/5 of Meenadu village is in the absolute possession and enjoyment of the 2nd defendant and late Parameswaran Pillai has no right over it. The 5th defendant contended that late Parameswaran Pillai had executed a will in favour of the 5th defendant and as per the will he had got absolute right over all the assets of late Parameswaran Pillai. 4. PW1 was examined and Exts.A1 to A10 were marked on the side of the plaintiff. The 2nd defendant was examined as DW1 and Exts B1 to B2 were marked on her side 5. Defendant Nos. 2 and 5 did not dispute the liability of late Parameswaran Pillai to plaintiff- Bank. The trial court held that Exts A1 to A10 and the testimony of PW1 proves the plaint averments and plaintiff- Bank has succeeded in establishing the plaintiff's case. Resultantly, the trial court passed a decree permitting the bank to realise Rs. 27,687/- with interest from the assets of late N.Parameswaran Pillai inherited by the defendants . The said decree and judgment was confirmed by the lower appellate court. R.S.A. No.571 of 2009 -3- 6. The learned counsel for the appellant/2nd defendant contended that she had not inherited any of the assets of late N. Parameswaran pillai and that the 5th defendant alone had inherited the said Parameswaran pillai's entire properties by virtue of the will as stated by himself in his written statement. Therefore the plaintiff- bank have no right to proceed against the appellant/2nd defendant for realisation of the plaint claim. 7. The decree itself was passed by the trial court to realise the decree amount from the assets of late N.Parameswaran Pillai inherited by the defendants . If the 2nd defendant was not inherited any property left by the said Parameswaran Pillai, she has no liability to discharge the decree debt. If the entire assets of late.Parameswaran Pillai was inherited by the 5th defendant the plaintiff -bank can proceed only against the 5th defendant If the assets of late Parameswaran Pillai was inherited by all the defendants the plaintiff-Bank is liable for recover the decree debt from those defendants. If the entire assets are inherited by the 5th defendant alone , being the legacee of the will as stated by himself in his written statement the plaintiff-bank cannot proceed against any other defendants 8. The 2nd defendant/ appellant has not made out any sustainable grounds to interfere with the judgments and decrees passed by the courts below in this Second Appeal. I am of the view that the decisions passed by the courts below are after taking into account the oral R.S.A. No.571 of 2009 -4- and documentary evidence and the contentions of both parties. There is no scope for invoking Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 571 of 2009 ---------------------------- JUDGMENT 24th June, 2009