AS No. 35 of 1995 · Kerala High Court
Case at a glance
Outcome
Allowed
The appeal is allowed in part
Key paragraphs
- Para 66. But as rightly pointed out by the learned counselappearing for the appellants, when Baby who alone was liable torepay it, the decree cannot be personally against theappellants, his legal heirs. Appellants are not personally liablefor the amount due from the husband/father. They are onlyliable…
Judgment
M. SASIDHARAN NAMBIAR, J.-------------------------------------------------A.S. No. 35 OF 1995--------------------------------------------------Dated this the 8th day of April, 2009J U D G M E N TDefendants in O.S.456 of 1992 on the file of SubCourt, Thalassery, the widow and children of deceased S.J. Babyare the appellants. Respondent is the plaintiff. Respondentinstituted a suit for realisation of Rs.45,000/- contending thatdeceased Baby borrowed the amount on 28.9.1991 and when theamount was demanded, Baby had issued Ext.A2 cheque whichwas dishonoured when presented for encashment. Later Babycommitted suicide. Respondent is entitled to realise the samefrom the appellants being his legal heirs. Appellants resisted thesuit contending that they are not aware of any borrowal by Babyor issuance of Ext.A2 cheque and she was in good terms with herhusband and they are not liable to pay any amount and thereforerespondent is not entitled to the decree. In the writtenstatement it was also contended that the signature seen in Ext.A2 is not that of the respondent.
Learned Sub Judge on the evidence of PWs 1 to 5, A.S.35/95-D2DW1 and Exts.A1 to A9 and X1 and X2 granted a decree infavour of the respondents for the plaint claim with 6% interestfrom the date of suit. It is challenged in the appeal.
Learned counsel appearing for appellants and therespondent were heard.
Learned counsel argued that the court below did notproperly appreciate the evidence and as the signature in Ext.A2is not proved to be that of the deceased, court below should havedismissed the suit. It is also contended that in any case thedecree cannot be granted personally against the appellants andif at all it could only be against the assets of the deceased leftwith the appellants.
On hearing the learned counsel and going through thejudgment of the learned Sub Judge, and the evidence on record, Ifind no reason to interfere with the finding that deceased Babyhad borrowed Rs.45,000/- from the respondent and towards itsrepayment issued Ext.A2 cheque and when it was presented, itwas dishonoured for want of sufficient funds. The evidence ofPWs 1 to 5 establish that deceased Baby had borrowedRs.45,000/- and later issued Ext.A2 cheque towards its A.S.35/95-D3repayment and it was dishonoured for want of sufficient funds. In such circumstances, respondent is entitled to realise theamount.
Operative part
But as rightly pointed out by the learned counselappearing for the appellants, when Baby who alone was liable torepay it, the decree cannot be personally against theappellants, his legal heirs. Appellants are not personally liablefor the amount due from the husband/father. They are onlyliable to the extent of the assets left by the deceased with them. Learned Sub Judge granted a decree personally against theappellants which is not sustainable. The appeal is allowed in part. While confirming the decreefor realisation of Rs.45,000/- with interest @ 6% from the date ofsuit till realisation it is made clear that the respondent is entitledto realise the amount only from the assets left by the deceasedwith the appellants and not personally against the appellants. M. SASIDHARAN NAMBIAR, JUDGEokb
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: The appeal is allowed in part
Which court decided this case, and when?
Kerala High Court, on 08 Apr 2009. The bench was M SASIDHARAN NAMBIAR, P A M SASIDHARAN NAMBIAR.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.