(Prayer: This Appeal is filed under section 100 of CPC against the judgment and decree dated: 15.02.2007 passed in R.A.No.86/2006 on the file of the Civil Judge (Sr. Dn.) & JMFC, Nagamangala, allowing the appeal and partially reversing and setting aside the judgment and decree dated: 23.11.2005 passed in O.S.No.116/2003 on the file of the Civil Judge (Jr. Dn.) and JMFC, Nagamangala.)
1. The present respondent had instituted a suit against the present appellant herein in the Court of Civil Judge (Jr.Dn.) & JMFC, Nagamangala, (hence forth for brevity referred to as the `trial Court' for short), in O.S.No.116/2003, for recovery of a sum of Rs.43,350/-, with interest thereupon.
2. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
3. The summary of the case of the plaintiff in the Court below was that the second son of the present appellant (defendant in the Court below) by name C.N.Raju, had borrowed a loan of Rs.35,000/- from the plaintiff on 1.4.2002 for the purpose of his business and domestic expenses by executing an on demand promissory note at Ex.P-1 and consideration receipt at Ex.P-2 in favour of the plaintiff. He had agreed to repay the loan amount with interest thereupon at the rate of 18% p.a. The said borrower C.N.Raju died on 23.8.2002 without discharging the said loan borrowed by him. The deceased has left behind him his mother/the defendant and his undivided interest in the joint family properties and also a provision store at a place called Chinya. It was further averred in the plaint that the deceased C.N.Raju was a businessman and was running a provision store in Chinya village, which is presently being run by the defendant after the death of her son Raju and she has possessed the untitled interest of her pre-deceased son- C.N.Raju in the joint family properties and also a separate property - provision store at Chinya. As such, the defendant is legally liable to discharge the loan borrowed by her pre-deceased son from the plaintiff. It is the further case of the plaintiff that in spite of demand made by the plaintiff, since the defendant failed to pay back the loan amount with interest thereupon, the plaintiff was constrained to file suit against her.
4. The defendant appeared through her counsel and filed her written statement, wherein she has taken a contention that during the life time of her deceased son Raju, her husband i.e., the father of the deceased had provided him financial assistance by getting a bank loan from Vijaya Bank in the name of her son and had made arrangement for the deceased to open a petty shop and accordingly, the deceased was running a provision store at Chinya. She had further taken a contention that deceased was residing separately away from her family and that the deceased own no property and also that she has not inherited any property of the deceased. However, she has stated that the shop and the property situated at Chinya was the self-acquired property of her husband and that it was her husband who had cleared the bank loan borrowed by their son Raju. Stating her ignorance about the alleged loan transaction, she had denied her liability to pay back the alleged loan amount with interest thereupon.
5. Based on the pleadings of the parties, the trial Court framed the following issues :
1. Whether plaintiff proves that the 2nd son of defendant i.e., C.N.Raju on 1.4.2002 borrowed a loan of Rs.35,000/- agreeing to repay the same at the rate of interest 18% p.a. and executed on demand pronote and consideration receipt?
2. Whether plaintiff proves that the said C.N.Raju (Borrower) died on 23.8.2002 and joint family properties including the share of C.N.Raju is with the defendant and she is liable to discharge the loan?
3. Whether plaintiff is entitled to the relief as claimed in the plaint?
4. What order or decree?
6. In order to prove his case, the plaintiff got examined three witnesses from PWs.1 to 3, including himself as PW-1 and got marked the documents from Exs.P-1 to P-17 and closed his side. From the defendant side, defendant got herself examined as DW-1 and got marked two more witnesses as DWs.2 and 3. No documents were got marked from her side. After hearing both side, the trial Court answered issue No.1 in the affirmative, issue Nos.2 and 3 in the negative and dismissed the suit of the plaintiff.
7. Aggrieved by the judgment and decree passed by the trial Court, the plaintiff preferred an appeal before the Civil Judge (Sr.Dn.) & JMFC, Nagamangala, (henceforth for brevity referred to as `First Appellate Court'), in RA.No.86/2006. The said Court framed the following points for its consideration :
Point No.1: Whether the defendant has inherited the estate of her pre-deceased son C.N.Raju? If so, whether she is liable to pay the suit claim?
Point No.2: Whether the trial Court has dismissed the suit of plaintiff with proper and correct appreciation of the materials of parties with reference to correct application of prevailing law?
After hearing both side, it answered point No.1 in the affirmative and point No.2 in the negative. In the result, it allowed the appeal filed by the plaintiff and decreed the suit of the plaintiff. Being aggrieved by the said judgment and decree of the first Appellate Court, the defendant has preferred this appeal.
8. This Court while admitting this appeal, framed the following substantial question of law :
"Whether the lower Appellate Court had erred in law in not giving any finding as to the proof of Ex.P-1 - on demand pronote but misdirecting itself to find out as to whether the executor of the pronote had left behind any properties?"
9. In response to the notice being issued, respondent is being represented by his counsel.
10. Lower Court records were called for and the same are placed before the Court.
11. Before the matter was taken up for final arguments, at the submission made by the learned counsel from both side and for the reason recorded in the proceedings sheet, substantial question of law framed by this Court was substituted as under :
"Whether the first Appellate Court is justified in holding that as the appellant has inherited the properties of her predeceased son, she is liable to discharge the debts incurred by her predeceased son?"
12. Heard the arguments from both side and perused the materials placed before this court.
13. Learned counsel for the appellant in his argument vehemently submitted that absolutely there is no material to show that the appellant being the mother of the deceased Raju has inherited to any of the properties of the deceased or that she has been in possession of in any of the properties of the deceased. That being the case, merely because she was the mother of the deceased, the alleged liability of the deceased son cannot be fastened upon her.
14. It is the specific contention of the plaintiff in the Courts below that even though the deceased Raju has borrowed loan in his individual capacity and for his business and domestic purposes, the defendant has possessed an untitled interest of pre-deceased son Raju in the joint family properties and also his separate property of provision store at Chinya, as such, she is legally liable to clear the debt. The plaintiff as PW-1 has reiterated the same statement in his examination-in- chief also. He has specifically stated that as on date, it is the defendant who is in possession and enjoyment of all that has come to the deceased as his legal right. In that regard, he has also produced and got marked RTC extracts of immovable properties at Exs.P-3 to P-15. The said RTC extracts are undisputedly and as has been admitted by DW-1, stands in the name of one Smt.Chennaputtamma, grand-mother of the deceased (mother of the father of the deceased) and the same has remained to be an undivided property among the family.
The defendant who was examined as DW-1, in her examination-in-chief has stated that even though the deceased was residing separately, but her husband Sri Narasimha Murthy got sanctioned loan from Vijaya Bank in the name of his son for his business purpose to make use of the same as a capital for the business and that it was her husband who cleared the said loan. This go to show that even though the deceased Raju was said to have been residing separately, it was the parents, more particularly, the father of the deceased who, apart from getting the loan sanctioned to him, also had cleared the said loan by himself. Though this creates a doubt as to why did the father of the deceased accepted the liability with respect to one particular loan, but, another parent i.e., the mother of the deceased is disowning the liability of the deceased, still on this aspect, the learned counsel for the appellant submitted in his argument that the parents thought it was their duty to see that their son is established in life, as such, they got capital to his shop by arranging a loan and cleared the said loan amount by themselves. Before accepting the said argument on its facial value, the other portion of the evidence that has come on record is also required to be looked into.
15. The defendant as DW-1 in her examination-in- chief has specifically stated that all the RTC extracts produced in the suit pertains to the family properties which has not been divided. Thus, none else than the defendant herself says that the properties mentioned in the documents at Exs.P-3 to P-15 shows the name of her mother-in-law (mother of the father of the deceased). From the said statement of none else than the defendant, it can be inferred that she admits that the deceased also had got share in the said property. No doubt, the plaintiff in the Court below except producing those RTC extracts at Exs.P-3 to P-15, has not led any evidence on the point of extent of the share of the deceased in the said property or as to whether the said alleged share of the deceased has been crystalised, still it cannot be ignored that the deceased had some share in the family property which is not disputed by the defendant, but DW-1 has herself volunteered to bring the said fact on record in her examination-in-chief.
16. DW-1 in her cross-examination has also stated that the family property has not been divided among the members of the family. She admitted a suggestion as true that the said family property stands in the name of Smt.Chennaputtamma (grand-mother of the deceased). She has further stated that they got three sons and all of them are residing separately since she has given them the money and made them to live separately. By making the said statement, she has shown that it is at her instance, her children have been residing separately and that other two sons having nothing to do with the business of deceased Raju. She also admitted a suggestion as true in her cross-examination that her son (Raju) died before he could clear the loan amount. In the said statement, she has admitted about the alleged loan transaction. The said DW-1 has categorically stated in her cross-examination that her deceased son Raju was running a petty shop and he was unmarried and the petty shop was his own shop. By making the said statement, she made it very clear that the business of petty shop of her deceased son Raju was his own property.
17. In the light of the above statement of none else than the defendant/DW-1, the evidence of DW-3 - Manjunatha, is also requires some attention. The said witness is none else than the witness who has come to depose on behalf of the defendant. Though he has stated in his very brief examination-in-chief that the deceased was residing separately and was running a business, but, in his cross-examination, he admitted two suggestions as true. The first suggestion which he admitted as true is that the family properties of the defendant are standing in the name of mother-in-law of the defendant. This is what even the defendant as DW-1 also has stated in her evidence. Thus, it goes to show that the family of the deceased has got some immovable property, which according to the plaintiff, are depicted in RTC extracts at Exs.P-3 to P-15.
The second admission by DW-3 as true is that all the articles that were found in the shop of the son of the defendant was taken over by the defendant after the death of her son. This statement is a very crucial statement in the form of admission which has come from the mouth of none else than the defendant's witness who claims to be aware of the family affairs of the deceased. The said statement that the defendant has taken away all articles of the shop of her deceased son C.N.Raju has not been rebutted or denied from the defendant's side at least by putting the said witness to re-examination and eliciting some more details in that regard. Therefore, when it was the defendant herself who has produced this witness projecting this witness as aware of their family matters and the very same witness has made the above mentioned admission about the family of the deceased possessing the family property and also the defendant herself taking away the articles of the shop of the deceased, it is clear that irrespective of the plaintiff proving any extent of the share of the deceased in his alleged family property, the plaintiff has succeeded in establishing that after the death of the deceased,
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it was none else than the defendant herself who has taken away all the articles from the shop of the deceased. The very same defendant, as observed above, in her evidence, has categorically stated that the said shop was owned by her son Raju i.e., it was his own property. Therefore, when the said shop which was the only business of her son and for which business, her son has availed money from the plaintiff, was deceased's own property, by taking away all the articles or items from that shop after the death of her son, the defendant had held herself answerable to all the claims made against her son by the alleged vendors of the money to the deceased. If at all the defendant wanted to refund the same, she should have at least produced the accounts of the properties of her son taken by her after his death and restricted her liability to the extent of her son's properties taken by her. No documents, at least, any inventory, in that regard has been produced by her. As such, the first Appellate Court has rightly held that the defendant is liable to clear the loan amount which was outstanding in favour of the plaintiff. I do not find any error in the said finding of the Court below. Accordingly, I answer the substantial question of law in the affirmative and proceed to pass the following order : ORDER The Appeal is dismissed. The judgment and decree passed by the Civil Judge (Sr.Dn.) & JMFC, Nagamangala, in R.A.No.86/2006, dated 15.02.2007, is confirmed.