HON’BLE SRI JUSTICE V.SURI APPA RAO SECOND APPEAL No.252 of 1996 JUDGMENT: This second appeal is filed under Section 100 of CPC against the judgment and decree dated 27.02.1996 passed in A.S. No. 9 of 1990 on the file of the I Additional District Judge, Warangal, whereby the judgment and decree dated 20.11.1989 passed in O.S.No.4 of 1987 on the file of the II Additional District Munsif, Warangal, was modified by decreeing the said suit against appellants, who are defendants 2 and 4 in the suit, and dismissing the same against the defendants 1 and 3. The respondent/plaintiff filed the suit for recovery of Rs.18,331/- on the ground that the father of the appellants borrowed Rs.17,000/- from the respondent on 20.05.1986 for his family necessities and agreed to pay the same with interest at 12% per annum and executed Ex.A.1 promissory note in favour of the respondent. In spite of several demands, the father of the appellants did not repay the amount during his life time. Subsequently, Venkata Kistaiah, father of the appellants died in the month of November, 1986. Thereafter the respondent- plaintiff demanded the wife of the deceased Venkata Kistaiah for the amount due to him, but she did not pay the amount. Therefore, he filed the suit against the wife, two sons and daughters ie., defendants 1 to 4 for recovery of the amount due under Ex.A.1 promissory note. The 1st defendant filed a written statement denying the execution of Ex.A.1 promissory note by her husband and borrowing the amount from the plaintiff, and further contended that her husband never borrowed any amount from anybody during his life time and there was no occasion and necessity for her husband to borrow any amount from the plaintiff. The defendants, therefore, contended that the suit is liable to be dismissed. The respondent-plaintiff was examined as PW.1 and he also examined PWs 2 and 3. The 2nd defendant is examined as D.W.1. Considering the oral evidence and Ex.A.1 promissory note, the trial Court ie., II Additional District Munsif, Warangal decreed the suit against all the defendants. Aggrieved by the said decree and judgment passed by the trial Court, the appellants and their sister and father filed the appeal before the I Additional District Judge, Warangal. The learned I Additional District Judge, Warangal, after considering the matter, decreed the suit against the appellants who are the sons of the deceased Venkata Kistaiah who executed Ex.A.1 promissory note in favour of the plaintiff and dismissed the suit against defendants 1 and 3. Aggrieved thereby, the appellants filed the present appeal. The learned counsel for the appellant contended that by the date of filing of the suit O.S.No.4 of 1987, the appellants, against whom the appellate Court decreed the suit are minors and that they are not liable to discharge the debt of his father, as the amount was not borrowed for the family necessities or for the benefit of the family. The learned counsel for the respondents submitted that the appellants, being the sons of the deceased Venkat Kistaiah, who actually borrowed the amount, are liable to pay the suit amount as per the decree passed by the appellate Court. I have perused the order under appeal and other material available on record. Though the learned counsel for the appellants submitted that the amount was not borrowed for the benefit of the joint family, the first appellant as D.W.1 has stated in his evidence that his father was working in RTC and that his father never used to spend his salary for the family needs and that his father was addicted to bad habits like consuming alcohol and playing cards. He further deposed that his father hardly used to give Rs.300/- or Rs.400/- per month to the family and used to spend the remaining salary for his bad habits and for his personal benefits. He further stated that his family has no necessity to borrow a sum of Rs.17,000/- through his father, from the plaintiff. The respondent as PW.1 has stated in his evidence that the deceased Venkat Kistaiah, husband of D.1 and father of D.2 and D.3 worked along with him in R.T.C. During his life time. The deceased borrowed an amount of Rs.17,000/- for his family needs on 20.05.1986 and executed Ex.A.1 promissory note. PW.2 is said to have attested Ex.A.1 promissory note. In his evidence, PW.2 stated that he knows PW.1 and late Venkat Kistaiah, that about 9 years back, late Venkat Kistaiah, ie., the father of the appellant, borrowed an amount of Rs.17,000/- from PW.1 for his family necessities, he was present at the time of transaction of borrowing the amount by late Venkat Kistaiah from PW.1 at his house and late Venkat Kistaiah executed Ex.A.1 promissory note in his presence and in the presence of one Rajaiah. PW.3 G.Rajaiah has stated in his evidence that he knows defendants 1 to 4 who are the heirs of late Venkat Kistaiah, and that during the life time of Venkat Kistaiah, he borrowed an amount of Rs.17,000/- on 20.5.1986 in his presence from the plaintiff. Thus, the evidence of PWs 1 to 3 is that late Venkat Kistaiah borrowed an amount of Rs.17,000/- from the plaintiff on 28.05.1986 and executed ExA.1 promissory note. The evidence of PW.1 shows that himself and late Venkata Kistaiah was working in the same department. Admittedly by the date of execution of Ex.A.1 promissory note, D.W.1 Venkat Kistaiah, father of appellants, defendants 2 to 4 are minors. Thus, D.1 who is the mother of the appellants and wife of Venkat Kistaiah, is only competent to say whether the suit amount was borrowed for the benefit of the family or not. But for the reasons best known to the defendants, she was not examined as witness in the suit to prove that the suit amount was not borrowed for the family necessities and for the family benefit. As seen from the cross- examination, the defendants have totally denied the execution of the Ex.A.1 promissory note by late Venkat Kistaiah and contended that Venkat Kistaiah never borrowed any amount from the plaintiff. PWs 2 and 3 who are the colleagues of the plaintiff as well as Venkat Kistaiah, who executed Ex.A.1 promissory note, have clearly stated about execution of Ex.A.1 suit promissory note and also further stated that late Venkat Kistaiah borrowed the amount of Rs.17,000/- from PW.1 from the respondent/plaintiff. Therefore, the contention of the defendants that Ex.A.1 promissory note was not valid and not supported by consideration cannot be accepted. For the first time, in this appeal, the appellants are contending that the suit amount was not borrowed for the family necessities or for the family benefit. When the defendants contend that the suit amount was not borrowed for the family benefit and was borrowed only for bad vices of late Venkat Kistaiah, it is for the defendants to prove that the suit amount was not borrowed for the family necessities except D.W.1, who was minor by the date of execution of Ex.A.1 pronote by his father, none others were examined to prove that the deceased Venkat Kistaiah was having bad habits and not giving salary to his family and that he spent the suit amount for his personal expenses. In the absence of any evidence on behalf of the defendants that late Venkat Kistaiah borrowed an amount of Rs.17,000/- for his personal habits and taking into consideration of the evidence of PWs 2 and 3 that the deceased Venkat Kistaiah borrowed the amount for the family expenses, it can safely be concluded that the suit amount was borrowed for the benefit of the family. The appellants, being the sons of the executant Venkata Kistaiah who borrowed the amount from the plaintiff are liable to discharge the debt of his father under the theory of pious obligation. Therefore, there are no merits in this appeal. Accordingly, the appeal is dismissed. The judgment and decree passed by the I Additional District Judge, Warangal in A.S.No.9 of 1990 is hereby confirmed. No costs. ___________________ V.SURI APPA RAO ,J 4th February, 2011 PNV