IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 AS.No. 35 of 1995() ------------------- OS.456/1992 of PRL.S.C.,THALASSERY .................... APPELLANTS/DEFENDANTS: -------------- 1. LEENA BABY, W/O. LATE S.J. BABY, AGED 25 YEARS, NO OCCUPATION, CHRISTIAN, SRAMBICAL HOUSE, VALTHODE EDAPPUZHA P.O. PRALAM AMSOM EDAPUZHA DESOM, TELLICHERRY TALUK. 2. ARUN, S/O. LATE S.J. BABY, AGED 3 YEARS, SRAMBICAL HOUSE, PRALAM AMSOM EDAPUZHA DESOM, VALTHODE EDAPPUZHA P.O.,TELLICHERRY TALUK. 3. HIRAN, S/O.LATE S.J. BABY, AGED 5 YEARS, SRAMBICAL HOUSE, PRALAM AMSOM EDAPUZHA DESOM, VALTHODE EDAPPUZHA P.O.,TELLICHERRY TALUK. (APPELLANTS 2 & 3 REPRESENTED BY 1ST APPELLANT) BY ADV. MR. GRASHIOUS KURIAKOSE RESPONDENT/PLAINTIFF: --------------- JOSEPH SEBASTIAN, BUSINESS, S/O. SEBASTIAN AGED 32 YEARS, NELLICKAL HOUSE, KOLIKKADAVU, PAYAM P.O., PAYAM AMSOM DESOM. ADV. MR. T.A.RAMADASAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.35/95 ORDER ON CMP.310 OF 1995 IN A.S.35 OF 1995 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 8.4.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- A.S. No. 35 OF 1995 -------------------------------------------------- Dated this the 8th day of April, 2009 J U D G M E N T Defendants in O.S.456 of 1992 on the file of Sub Court, Thalassery, the widow and children of deceased S.J. Baby are the appellants. Respondent is the plaintiff. Respondent instituted a suit for realisation of Rs.45,000/- contending that deceased Baby borrowed the amount on 28.9.1991 and when the amount was demanded, Baby had issued Ext.A2 cheque which was dishonoured when presented for encashment. Later Baby committed suicide. Respondent is entitled to realise the same from the appellants being his legal heirs. Appellants resisted the suit contending that they are not aware of any borrowal by Baby or issuance of Ext.A2 cheque and she was in good terms with her husband and they are not liable to pay any amount and therefore respondent is not entitled to the decree. In the written statement it was also contended that the signature seen in Ext.A2 is not that of the respondent. 2. Learned Sub Judge on the evidence of PWs 1 to 5, A.S.35/95-D 2 DW1 and Exts.A1 to A9 and X1 and X2 granted a decree in favour of the respondents for the plaint claim with 6% interest from the date of suit. It is challenged in the appeal. 3. Learned counsel appearing for appellants and the respondent were heard. 4. Learned counsel argued that the court below did not properly appreciate the evidence and as the signature in Ext.A2 is not proved to be that of the deceased, court below should have dismissed the suit. It is also contended that in any case the decree cannot be granted personally against the appellants and if at all it could only be against the assets of the deceased left with the appellants. 5. On hearing the learned counsel and going through the judgment of the learned Sub Judge, and the evidence on record, I find no reason to interfere with the finding that deceased Baby had borrowed Rs.45,000/- from the respondent and towards its repayment issued Ext.A2 cheque and when it was presented, it was dishonoured for want of sufficient funds. The evidence of PWs 1 to 5 establish that deceased Baby had borrowed Rs.45,000/- and later issued Ext.A2 cheque towards its A.S.35/95-D 3 repayment and it was dishonoured for want of sufficient funds. In such circumstances, respondent is entitled to realise the amount. 6. But as rightly pointed out by the learned counsel appearing for the appellants, when Baby who alone was liable to repay it, the decree cannot be personally against the appellants, his legal heirs. Appellants are not personally liable for the amount due from the husband/father. They are only liable to the extent of the assets left by the deceased with them. Learned Sub Judge granted a decree personally against the appellants which is not sustainable. The appeal is allowed in part. While confirming the decree for realisation of Rs.45,000/- with interest @ 6% from the date of suit till realisation it is made clear that the respondent is entitled to realise the amount only from the assets left by the deceased with the appellants and not personally against the appellants. M. SASIDHARAN NAMBIAR, JUDGE okb