High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.03.2007CORAMTHE HONOURABLE MR. JUSTICE P.JYOTHIMANIAppeal Suit No. 1064 of 19931.V.S.Somasundaram2.Minor Karthik represented by father and guardian V.S.Somasundaram first Appellant .. Appellants(Defendants)VersusS.Pandarinathan.. Respondent(Plaintiff) Prayer: This appeal suit is preferred under Section 96 of CPC againstthe Judgment and decree passed in O.S.No.8 of 1989 dated 10.03.92 on thefile of the Subordinate Judge, Gobichettipalayam.For Appellants :Mr.M.Duraisamy for Mr.T.MuragamanickamFor Respondent :M/s.M.M.SundreshJUDGMENTThe defendants in the suit have filed the present first appeal. Therespondent filed a suit against the defendants for recovery of money dueunder a promissory note executed by the first defendant on 17.10.1986for a sum of Rs.36,007/- and agreeing to repay the same with 12%interest. The plaintiff has issued a notice to the first defendant on25.11.88 and there was no reply from the defendants. 2.The plaintiff has filed the suit for recovery of money under thepromissory note on the basis that the borrowal by the first defendantfrom the plaintiff is for joint family benefits and the first defendantbeing the father and second defendant being the minor son of the firstdefendant living jointly both the defendants are liable.3.The first defendant filed written statement denying the executionof promissory note. That apart, it was the case of the first defendant,that he had no money dealings with the plaintiff at any point of time.The first defendant was carrying on business with one V.K.Gobia Gounderin a partnership firm in which, the first defendant has contributed a https://hcservices.ecourts.gov.in/hcservices/ cash of Rs.15,000/- as his share and in respect of the remaining amountof Rs.5,000/- he has executed blank promissory note and handed over thesame to the said V.K.Gobia Gounder. Thereafter, there was some strainedrelationship between the first defendant and the said V.K.Gobia Gounder,who was the Managing partner of the partnership firm namely VellankoilSri Lakshmi Finance. When the first defendant requested the saidV.K.Gobia Gounder to return the promissory note. Due to the strainrelationship, the said V.K.Gobia Gounder has set up the plaintiff who isthe co-brother of the said V.K.Gobia Gounder to file the suit on theblank promissory note given by the first defendant to the said V.K.GobiaGounder.4.In the trial Court the plaintiff has examined himself as PW1 andapart from him, two witnesses PW2 and PW3 were examined who were thescribe and attesting witness of Ex.A1 promissory note. On the side ofthe defendants, the first defendant himself was examined as DW1 andother witness was examined as DW2 who is stated to be a relative of thesaid V.K.Gobia Gounder. 5.The trial Court has framed the following issues;1.Whether the first defendant has executed the suitpromissory note for a sum of Rs.30,000/-?2.Whether the suit promissory note was createdfraudulently as stated in the written statement?3.Whether the second defendant is a necessaryparty?4.Whether the plaintiff is entitled to the relieffrom the defendant as prayed in the plaint? 6. The trial Court on appreciation of evidence having come to aconclusion that the execution of promissory note has been proved andhaving held that the second defendant is also living with the firstdefendant and therefore, the first defendant can be stated to be thekartha of the family and therefore the borrowal was treated for thebenefit of the family and also on the basis that the second defendant isliving with the first defendant, held he is also responsible for theliabilities of the first defendant on the basis of pious obligationtheory. 7.It is as against the judgment and decree of the trial Court thedefendants have filed the present first appeal.8.The point for consideration in this appeal is as to whether thejudgment and decree of the trial Court is valid and the defendants arejointly liable to pay under the suit promissory note?9.The contention of the learned counsel for the appellants, is thatin order to prove the defence raised by the defendants that the suitpromissory note was not executed in favour of the plaintiff and on the https://hcservices.ecourts.gov.in/hcservices/ other hand a blank promissory note was given to one V.K.Gobia Gounder inrelation to the partnership business run in the name of Vellankoil SriLakshmi Finance, the first defendant has examined apart from himself asDW1, another independent witness DW2 who is admittedly a relative of thesaid V.K.Gobia Gounder. It is seen, as per the evidence of DW2 thatafter the suit notice was received from the plaintiff, the firstdefendant has approached the plaintiff along with DW2 who in his turnhas directed the first defendant to approach the said V.K.Gobia Gounderand on the basis of the said direction, the first defendant has met theV.K.Gobia Gounder along with DW2, in respect of partnership accountwhich proves that the promissory note was not given to the plaintiff. Asper the learned counsel for the appellants, the first defendant hastaken steps to prove that the execution of the promissory note was notfor consideration received from the plaintiff.10.The learned counsel for the appellants would submit that whenonce it is found by the trial Court categorically that the firstdefendant has borrowed and when he is alive, on the basis that the firstdefendant is treated as the Kartha and therefore the second defendantbeing the minor son of the first defendant, is responsible for theliabilities of the first defendant under the pious obligation theory isuntenable, especially in the circumstances that even assuming that thereis a joint family, during the life time of the first defendant, thequestion of pious obligation against the second defendant does notraise. 11.The learned counsel for the respondent would submit that whileit is true that the defendants have examined another witness who is therelative of the said V.K.Gobia Gounder as DW2, and in his deposition hehas submitted something about the obligation of the first defendant topay the balance amount in the partnership firm run between the firstdefendant and the said V.K.Gobia Gounder, it remains the fact that thereis nothing on evidence to show that the first defendant has taken anysteps for returning the promissory note from the said V.K.Gobia Gounderexcept examining the DW2. Therefore, according to the learned counselfor the respondent, the onus in respect of the borrowal by the firstdefendant has been proved as per the provision of the NegotiableInstrument Act.12.On the other hand, the learned counsel for the respondent fairlysubmits that the pious obligation theory as far as the order of thetrial Court relating to the second defendant will not arise during thelife time of the first defendant. 13.The judgment of the trial Court clearly shows that the trialCourt has infact considered the evidence of PW2 and PW3 who wereexamined for the purpose of proving Ex.A1 promissory note dated17.10.86. In fact PW.2 who was the scribe of Ex.A1 the promissory notehas clearly stated that it was he who prepared the said promissory note https://hcservices.ecourts.gov.in/hcservices/ and on the other hand PW3 who is the witness of Ex.A1 in a categoricterms has stated that on the date when the pro-note was executed, theamount was paid to the first defendant. The trial Court has discussedthe evidence of PW2 and PW3 extensively and I am of the considered viewthat it does not warrant any interference since the finding of the factby the Court below in respect of the execution of the promissory note iswith an unimpeachable credibility. 14.The next contention raised by the learned counsel for theappellants is that by examining D.W.2 who is the relative of the saidV.K.Gobia Gounder, the first defendant has proved that there has beenearlier partnership between the first defendant and the said V.K.GobiaGounder under which the first defendant has issued the blank promissorynote in favour of the said V.K.Gobia Gounder and it must be taken thatthe first defendant has proved that the pronote was not executed infavour of the plaintiff for any consideration received from him. Areference to the evidence of DW2 shows that DW2 has gone along with thefirst defendant to meet V.K.Gobia Gounder and he has also stated that inrespect of the contribution of money by the partnership firm namelyVellankoil Sri Lakshmi Finance, the first defendant had somedeficiencies and when the first defendant and DW2 had met V.K.GobiaGounder, he assured that steps will be taken for the purpose ofsettlement of accounts. That apart it is not the case of the firstdefendant that apart from meeting the said V.K.Gobia Gounder along withDW2 for the purpose of settlement of accounts, it remains the fact thatthe first defendant has not taken any steps for the purpose of gettingreturn of the blank promissory note stated to have been executed by himin favour of the said V.K.Gobia Gounder. In the absence of such actiontaken by the first defendant, merely examination of DW2 as witness isnot sufficient to prove that the first defendant has taken steps todisprove the execution of Ex.A1, as correctly found by the trial Court.In view of the above said factual position, there is nothing warrantingto interfere with the judgment of the trial Court in so far as itrelates to the first defendant. As far as the liability imposed on thesecond defendant as minor son of the first defendant under piousobligation theory, the same is not sustainable in law especially in thecircumstance when the trial court has found in categoric terms that theborrowel of the first defendant from the plaintiff was not for the jointfamily business, on the assertion that the first defendant can never betreated as the kartha when it was found that the first defendant'sfather is alive and living with him. In any event as long as the firstdefendant is alive, the question of imposing responsibility on the minorson, the second defendant, under pious obligation theory does not ariseas rightly submitted by the learned counsel for the respondent also. Areference to Ex.A1 also shows that the borrowal by the first defendantis in his individual capacity and not on behalf of the family as rightlypointed out by the trial Court. In view of the above said facts andcircumstances, the second defendant can never be held liable under Ex.A1on the basis of pious obligation theory. Therefore, the judgment and https://hcservices.ecourts.gov.in/hcservices/ decree of the trial Court are confirmed except setting aside the portionof the judgment and decree against the second defendant. The appealstands dismissed in the above terms with cost against the firstdefendant. Consequently, connected C.M.P.No.3792 of 1993 is closed.jikrSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Subordinate Judge, Nagapattinam.2. The Record Keeper, V.R. Section,High Court, Chennai.+ One cc to Mr. M.M. Sundresh Advocae sR 19238+ One cc to Mr. M. Duraisamy Advocate SR 18898VC (co)sg 17/5/17Appeal Suit No.1064 of 199326.03.2007