IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 571 of 2009()
1. K.LALITHAMMA, AGED 82 YEARS
... Petitioner
Vs
1. THE BRANCH MANAGER, STATE BANK OF
... Respondent
2. MADHAVAN UNNITHAN, ASSARIVILA VEEDU
3. K.KASTHURIBHAI,CHITHRALAYAM,
4. K.RETNAMAI DEVI, ALAKANANDA,
5. K.RAVINDRANATH ,ASSARIVILA VEEDU,
For Petitioner :SRI.K.KARTHIKEYA PANICKER
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :24/06/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No. 571 of 2009
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Dated this the 24th day of June, 2009
JUDGMENT
The Second Appeal is directed against the judgment and decree
and in R.F.A No. 30/2004 on the file of the II Additional District Court
Kollam which arises from the judgment and decree in O.S. 321/1999 on
the file of the Munsiff-Magistrate, Paravur. The suit was filed by the 1st
respondent -Bank herein as plaintiff for realisation of money . The 2nd
defendant in the suit is the appellant herein. The parties hereinafter
referred to as plaintiff and defendants as arrayed in the suit.
2. According to the plaintiff-Bank, the defendants 1 to 4 are the
legal heirs of late N. Parameswaran Pillai who had availed a cash credit
loan of Rs. 25,000/- from the plaintiff -Bank. The said Parameswaran
Pillai died on 11.3.1999 and all of his assets were inherited by defendants
1 to 4. The suit was filed for realisation of Rs. 27,687/- with interest from
the assets of Parameswaran Pillai. Defendant Nos 1, 3 and 4 were set
exparte.
3. The 2nd and 5th defendants, in the written statement, admitted
that 10.5 Cents of properties along with all improvements therein in Re-
survey No. 229/4 of Meenadu Village was under the joint ownership and
possession of the 2nd defendant and late Parameswaran Pillai that the 2nd
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defendant and late Parameswaran Pillai jointly executed a partition deed
No. 1617/1955 and as per the terms an extent of 71.5 cents of property
was allotted to the 2nd defendant that the plaintiff-bank has no right to
realise any amount from the property comprised in re-survey No. 229/4 &b
229/5 of Meenadu village. It is also contended that an extent of 13.5 cents
in Re-survey No. 229/5 of Meenadu village is in the absolute possession
and enjoyment of the 2nd defendant and late Parameswaran Pillai has no
right over it. The 5th defendant contended that late Parameswaran Pillai
had executed a will in favour of the 5th defendant and as per the will he
had got absolute right over all the assets of late Parameswaran Pillai.
4. PW1 was examined and Exts.A1 to A10 were marked on the
side of the plaintiff. The 2nd defendant was examined as DW1 and Exts B1
to B2 were marked on her side
5. Defendant Nos. 2 and 5 did not dispute the liability of late
Parameswaran Pillai to plaintiff- Bank. The trial court held that Exts A1 to
A10 and the testimony of PW1 proves the plaint averments and plaintiff-
Bank has succeeded in establishing the plaintiff’s case. Resultantly, the
trial court passed a decree permitting the bank to realise Rs. 27,687/- with
interest from the assets of late N.Parameswaran Pillai inherited by the
defendants . The said decree and judgment was confirmed by the lower
appellate court.
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6. The learned counsel for the appellant/2nd defendant
contended that she had not inherited any of the assets of late N.
Parameswaran pillai and that the 5th defendant alone had inherited the
said Parameswaran pillai’s entire properties by virtue of the will as stated
by himself in his written statement. Therefore the plaintiff- bank have no
right to proceed against the appellant/2nd defendant for realisation of the
plaint claim.
7. The decree itself was passed by the trial court to realise the
decree amount from the assets of late N.Parameswaran Pillai inherited by
the defendants . If the 2nd defendant was not inherited any property left by
the said Parameswaran Pillai, she has no liability to discharge the decree
debt. If the entire assets of late.Parameswaran Pillai was inherited by the
5th defendant the plaintiff -bank can proceed only against the 5th defendant
If the assets of late Parameswaran Pillai was inherited by all the
defendants the plaintiff-Bank is liable for recover the decree debt from
those defendants. If the entire assets are inherited by the 5th defendant
alone , being the legacee of the will as stated by himself in his written
statement the plaintiff-bank cannot proceed against any other defendants
8. The 2nd defendant/ appellant has not made out any
sustainable grounds to interfere with the judgments and decrees passed
by the courts below in this Second Appeal. I am of the view that the
decisions passed by the courts below are after taking into account the oral
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and documentary evidence and the contentions of both parties. There is
no scope for invoking Section 100 of the C.P.C. No question of law much
less any substantial question of law arises for consideration in this appeal.
This appeal fails and accordingly dismissed
(HARUN-UL-RASHID, JUDGE)
es.
HARUN-UL-RASHID, J.
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R.S.A.No. 571 of 2009
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JUDGMENT
24th June, 2009