IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 RSA.No. 356 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN CMCP.66/2008 Dated 01/04/2009 AS.160/2007 of III ADDL. DISTRICT COURT, KOLLAM O.S. 256/2001 on the FILE OF THE ADDL. SUB COURT, KOLLAM .................... APPELLANTS/1ST RESPONDENT/DEFENDANT ------------------------------------------------------- INDIRA, AGED 56 YEARS, ARRAKKAL VEEDU, ASRAMAM P.O., KOLLAM EAST VILLAGE. BY ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE SMT.D.P.RENU RESPONDENT/APPELLANT/PLAINTIFF ---------------------------------- ANIYAN, AGED 40 YEARS, S/O SUGATHAN, KETTUNGASSERIL VEEDU, ASRAMAM P.O., KOLLAM EAST VILLAGE, KOLLAM. GOVERNMENT PLEADER SRI.L.G.SURESH BABU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO. 817 OF 2009 IN R.S.A. NO. 356 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 4.6.2009 es HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 356 of 2009 ---------------------------------------- Dated this the 4th day of June, 2009 JUDGMENT This Second appeal is directed against the judgment and decree in A.S. 160/2007 on the file of the III Additional District Court Kollam which arises from the judgment and decree in O.S. 256/2001 on the file of the Additional Sub Court , Kollam. The trial court dismissed the suit. The lower appellate court set aside the trial court's decree and passed a decree as prayed for by the plaintiff. Hence this second appeal is filed by the defendant in the suit . The parties hereinafter referred to as the plaintiff and defendant. 2. The suit was filed for realisation of money. The sole defendant is the mother of one Sri.Sudheer who had borrowed Rs. 1 lakh on 16.8.2000 and executed a promissory note for the said sum in the presence of witnesses undertaking to repay same with interest as and when demanded. On 4.5.2001 the said Sudheer died. He had committed suicide. The plaintiff demanded the defendant to repay the amount being the sole legal heir of the deceased Sudheer. It was also averred in the plaint that the said Sudheer being a Hindhu remained unmarried and died intestate, the defendant has inherited the assets of the deceased and as such she is liable to discharge the liability to the extent of the assets she inherited. Therefore the suit was filed for R.S.A. 356 of 2009 -2- realisation of Rs. 1 lakh with future interest and costs. 3. In the written statement it was contended that the defendant was not aware of the transaction between the plaintiff and Sri.Sudheer as stated in para 2 of the plaint, that the plaintiff was put to strict proof of the transaction and execution of promissory note and also that it was supported by consideration. It was also stated by the defendant that she was under no legal obligation to discharge the liability of Sudheer and that whatever left behind by the late Sudheer was disposed of for discharging his debt. According to the defendant the property over which the plaintiff got attachment was already sold of even prior to date of attachment for discharging the liability of the deceased. 4. It is to be noted that along with the suit, the plaintiff has filed an application for attachment of the property of the deceased as I.A. 1056/2003 and an interim order of attachment was passed. In the meanwhile fractional interest of the defendant over the property was assigned and the purchasers got impleaded as additional defendants 2 and 3 as per Order in I.A. No. 2724/2005. 5. After an analysis of the oral and documentary evidence adduced by both the parties, the trial court held that since the plaintiff could not prove that Ext.A1 promissory note was supported by consideration and he was not entitled to realise any amount as prayed for and as such the properties of the deceased were not liable to be proceeded against. R.S.A. 356 of 2009 -3- 6. The lower appellate court also held that for non- production of pass book the trial court wrongly drew a presumption that there was no transaction as alleged between parties as on 16.8.2000 and disbelieved the case of the plaintiff. The lower appellate court also relied on the oral evidence of PW1 and PW2 in whose presence Ext.A1 promissory note was signed by the late Sudheer. . Ext.A1 promissory note was prepared in the hand writing of PW2. Both PW1 and PW 2 tendered evidence to the effect that the amount was paid in cash and the late Sudheer read and understood the contents in Ext.A1 before signing the promissory note. Corroborating the testimony of PW 1, PW2. said that on 16.8.2000 the Promissory note was written under his hand at the house of the plaintiff and he witnessed deceased receiving Rs. 1 lakh as a loan. PW2 also stated that the deceased Sudheer and himself went together to the house of the plaintiff and carried revenue stamp and paper on which the note was prepared. The evidence of PW1 and PW2 were relied on and the lower appellate court did not find any reason to disbelieve their testimony. The lower appellate court also took into consideration the contention raised by the defendant to the effect that she has no knowledge of her son having received any loan from anybody nor given any documents. I am of the view that in the given circumstances the question whether the deceased Sudheer had availed a loan of Rs. 1 lakh from the plaintiff is a question to be decided on the basis of the evidence let in by the plaintiff and the lower court rightly done so. The lower R.S.A. 356 of 2009 -4- appellate court examined the various facts and circumstances leading to the execution of Ext.A1. The lower appellate court also found that there were no reasons to disbelieve PW1 and 2 for the possibility of the fabrication of a false document. The lower appellate court rightly pointed out that the dismissal of the suit was solely based on mis-appreciation of evidence , probabilities and the circumstances of the case After passing a decree for money with interest, the lower appellate court also specified that the liability of the defendant will extend only to the assets proved to have come into her possession inheriting the deceased, that the finding entered by the trial court on Ext.B2 sale deed holding the same to be fraudulent was vacated and the same was open to consideration by execution court in case the plaintiff puts forward a plea of fraud under Section 53 of the T.P Act. 7. The decree passed by the lower appellate court in reversal of the decree passed by the trial court is based on the evidence recorded,probabilities circumstances and facts of the case. In my view the appellant/defendant has failed to urge any questions of law much less any substantial question of law before this Court. There is no scope for invoking Section 100 of the C.P.C This appeal fails and accordingly dismissed (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 356 of 2008 ---------------------------- JUDGMENT 4th June , 2009