Money suit on the Estate of the Deceased

'Money suit on the Estate of the Deceased, to the extent acquired by them, - not maintainable as per Section 6(4) of Hindu Succession Act'.

Till date the money suits were filed on the basis of the averments viz… that M/s.XXX is dead and he is survived by his wife, two sons and two daughters who are the defendants. They have succeed to the estate of the deceased M/s.XXX. Their father M/s.XXX had borrowed a sum of Rs.2,00,000/- for the purpose of family benefit and legal necessities from the plaintiff agreeing inter alia to repay the same together with interest at 24% per annum. M/s.XXX had executed a promissory note and consideration receipt on **.**.2015. The plaintiff came to know that M/s.XXX died few months ago. Plaintiff informed the defendants personally about the loan borrowed by M/s.XXX and they agreed to repay the amount together with interest. However, they have been postponing to pay the same on some pretext or the other. The defendants are liable to pay Rs.XXXXXXXXXX/- to the plaintiff, Rs.XXXXXXXXXX being principal and Rs. Rs.XXXXXXXXX /- being interest. So, prays to decree the suit. The Defendant has been in enjoyment of the properties of her deceased husband and also the amount to be received by her. Therefore, the Defendant in law is liable to pay the loan taken by her husband and in the interest of justice.

In the reply, the defence taken by the defendants were as follows:

The  Plaintiff is not entitled to claim any relief in the suit. The Defendant does not know the Plaintiff. The Defendant's husband has not received any loan amount either on **.**.2015 or on any other date and has not executed the pronote. [In some cases -The Plaintiff's husband served as a principal of xxxxxxxxxx.College at yyyyyyyyyyyyyyy. The Defendant's husband (since deceased) worked as a Office Assistant in the said College. At that time, due to differences of opinion, frequent quarrels has arisen between her husband and the plaintiff's husband or in some cases - the Deceased husband and the plaintiff were relatives and there was rival claim in the relationship. (which fact she comes to know recently)]. Because of the said enmity, the suit pronote has been created by the Plaintiff fraudulently by forging the signature of her husband, (which fact also she comes to know only recently).  In the notice sent by the Plaintiff, she has not issued a reply because of her husband's bereavement. It is incorrect to state that the Defendant has been in enjoyment of her husband's property. She is not in possession of any property in her hands. She is not liable to pay the amount mentioned by the Plaintiff. As such, the suit is liable to be dismissed.  Or

The suit is not maintainable either in law or on facts. It is true that the first defendant is the wife of the deceased and the defendants 2 & 3 are his children and that deceased had died on xx.xx.xxxx. It is false to state that for family expenses and business activities, the deceased and the first defendant borrowed a sum of Rs.xxxxxxxxxxxxxx/- from the plaintiff on xx.xx.xxxx under the suit promissory note agreeing to repay the same with interest at the rate of 12% per annum as claimed by the plaintiff. The deceased and the first defendant have not borrowed any amount from the plaintiff as stated in the plaint. The suit promissory note is a fabricated document and the alleged signature and thumb impression found on the suit promissory note are created and forged by the plaintiff. As either the deceased Ramachandran or the first defendant did not borrow any amount under the suit promissory note, the suit promissory note is not supported by consideration and hence, the suit is liable to be dismissed.

The defendant relies on

AIR 2002 MADRAS 296, wherein at page 298 in paragraph Nos.11, it is held as follows:-  "It is hereby made clear that even if the plaintiff had proved that the defendants were related to the late Ethirajulu Naidu so as to become the heirs of the deceased, it would not be sufficient unless they were able to further prove that the said Ethirajulu Naidu left a valuable estate and that estate has been inherited by these defendants and that estate was worth the money that is sought to be recovered and only in proof of all these aspects, the next step of lodging the claim against these appellants/defendants would be arrived at. Since the plaintiff has miserably failed to prove this vital aspect which is quite legal and prerequisite condition, the other question of the borrowing of Ethirajulu Naidu is quite irrelevant to the issue with which the defendants have absolutely no nexus or bearing."

2009 (1) CTC - 728, wherein it is held that "In a suit for recovery of money on pronote, it is for the plaintiff to establish his case and that the defendant need not take steps to disprove the plaintiff's case."

AIR 1979 ORISSA - 130, it is held that "the term 'other descendant' in Section 53 of the Code of Civil Procedure does not include widow and in decree against the deceased husband in execution, the share received by the widow is immune."

AIR 2002 MADRAS - 296, it is observed that "In a suit for recovery of amount filed against legal heirs of borrower, on basis of pronote, there is nothing to show that said heirs though related to maker, have inherited his estate, so as to become liable to repay the debts and as such suit is not maintainable."

AIR 1983 Ker 81, a Division Bench of this Court has also taken the view that proof of execution of a document is not proof of the truth of the contents of the documents. In this case, apart from taking steps to cause production of a certified copy of the document, there is absolutely no other evidence available on record regarding the due execution of Exhibit X1 dissolution deed. The signature and handwriting contained in Exhibit are not proved as that of Sri Sadanandan and Omana. So, the plaintiffs have miserably failed to prove that Exhibit X1 dissolution deed was executed by Sadanandan and deceased Omana.

On the above facts and Citation some suit were decreed and some suit were dismissed. For Instance Madras High Court in R.Senbagadevi vs C.Sundaramani

IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.No.192 of 2011
and
M.P.No.1 of 2011

1. R.Senbagadevi
2. Minor Saran Srinivas
3. Minor Mathura Geetha

(Minors 2 & 3 rep.by N.F.Guardian
Mother Viz., R.Senbagadevi) ... Appellants

Vs.

C.Sundaramani ... Respondent
Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment 

For Appellants : Mr.P.Jagadeesan
For Respondent : Mr.R.Tholgappian

JUDGMENT

1. The defendants have impugned the judgment and decree dated 15.03.2010 made in A.S.No.58/2008 on the file of the Additional District and Sessions Judge, Salem, Fast Track Court, confirming the judgment and decree dated 01.02.2008 made in O.S.No.7 of 2007 on the file of the Subordinate Court, Sankagiri in this second appeal.

2. The suit has been laid for recovery of money

3. The case of the plaintiffs, in brief, is as follows:

The first defendant is the wife and the defendants 2 and 3 are the children of the deceased Ramachandran. Ramachandran died on 07.08.2005. For business activities and family expenses, on 30.03.2004 the deceased Ramachandran and his wife, the first defendant borrowed a sum of Rs.1,00,000/- from the plaintiff and in evidence thereof, both of them executed a promissory note in favour of the plaintiff agreeing and promising to repay the debt with interest at the rate 12% per annum on demand to the plaintiff. However, they had not repaid any amount towards the debt borrowed from the plaintiff as stated above under the promissory note. On the death of Ramachandran, the first defendant and his children had inherited his estate. Therefore, the plaintiff has been necessitated to file the suit against the defendants for the recovery of the suit amount.

4. The case of the defendant, in brief, is as follows: The suit is not maintainable either in law or on facts. It is true that the first defendant is the wife of the deceased Ramachandran and the defendants 2 & 3 are his children and that Ramachandran had died on 07.08.2005. It is false to state that for family expenses and business activities, the deceased Ramachandran and the first defendant borrowed a sum of Rs.1,00,000/- from the plaintiff on 30.03.2004 under the suit promissory note agreeing to repay the same with interest at the rate of 12% per annum as claimed by the plaintiff. The deceased Ramachandran and the first defendant have not borrowed any amount from the plaintiff as stated in the plaint. The suit promissory note is a fabricated document and the alleged signature and thumb impression found on the suit promissory note are created and forged by the plaintiff. As either the deceased Ramachandran or the first defendant did not borrow any amount under the suit promissory note, the suit promissory note is not supported by consideration and hence, the suit is liable to be dismissed.

5. In support of the plaintiffs' case PWs1 to 4 were examined and Exs.A1 to 3 were marked. On the side of the defendant, DW1 has been examined and no document has been marked.

6. On a consideration of the oral and documentary evidence adduced by the respective parties, the trial court was pleased to decree the suit as prayed for. The first appeal preferred by the defendants came to be dismissed. Now, the defendants have preferred this second appeal, challenging the judgment and decree of the courts below.

7. The second appeal has been admitted and the following substantial question of law is formulated for onsideration in this second appeal.

Whether or not the defendants liable to discharge the loan borrowed by the deceased Ramachandran especially when they have not inherited any property from him and the residential house at Sankari Town in the separate property of the first defendant?

8. The suit has been laid on the promissory note. According to the plaintiff, the deceased Ramachandran and his wife viz. The first defendant borrowed a sum of Rs.1,00,000/- from him on 30.03.2004 for their business purpose and family expenses and in evidence thereof, executed the suit promissory note in favour of the plaintiff agreeing to repay the said amount with interest at the rate of 12 % per annum to the plaintiff on demand. According to the plaintiff, the deceased Ramachandran died leaving behind the first defendant and his children viz., the defendants 2 & 3 as his legal representatives. Further, according to the plaintiff, after the death of Ramachandran, as the first defendant did not pay the amount to the plaintiff, the plaintiff has been necessitated to lay the suit for recovery of amount.

9. The defendants in their written statement have disputed the genuineness and validity of the suit promissory note. According to them, the suit promissory note is a fabricated document and neither the deceased Ramachandran nor the first defendant borrowed any amount under the suit promissory note as  claimed in the plaint and therefore, according to the defendants, the suit is liable to be dismissed.

10. To sustain the case of the plaintiff, the plaintiff has examined himself as PW1 and the scribe of the suit promissory note marked as Exs.A1 as PW2 and one of the attestors as PW3. PWs 2 & 3 in their evidence have clearly stated that the deceased Ramachandran and his wife viz., the first defendant had borrowed the suit debt from the plaintiff and in evidence thereof, executed the suit promissory note agreeing to repay the same with interest as stipulated in the suit promissory note.

That apart, the plaintiff has also tendered evidence with reference to his claim. Nothing has been culled out during the cross examination of PWs 1 and to 3 to discredit their evidence with reference to the above said aspects. As rightly found by the courts below merely on the footing that the defendants 2 & 3 are the erstwhile colleagues of the plaintiff, we cannot discard their testimony, when it is found that their testimony is otherwise reliable and convincing. Therefore, it could be seen that as rightly found by the courts below, the plaintiff through the oral and documentary evidence adduced on his behalf has clearly established that the deceased Ramachandran and the first defendant had borrowed the suit amount from him under the suit promissory note.

11. In such circumstances, it could be seen that the plaintiff having discharged the initial burden of proof as per law, the presumption can be drawn that the suit promissory note is supported by consideration and that it had been executed by the deceased Ramachandran and the first defendant as put forth in the plaint. In such circumstances, the burden is shifted on the defendants to establish that as claimed by them, the suit promissory note is not supported by consideration or the suit promissory note has been created or fabricated by the plaintiff for making unjust enrichment. However, the defendants have, as rightly found by the courts below, failed to discharge the burden of proof placed on them and in such circumstances, when the presumption that could be taken in favour of the plaintiff's case has not been dislodged in any manner by the defendants by adducing rebuttal evidence to the satisfaction of the courts below, it could be seen that no exception could be taken to the findings of the courts below that the suit promissory note is a genuine and valid document and supported by consideration.

12. The main point i.e. urged by the counsel for the defendants is that the plaintiff has not taken steps to send the suit promissory note for comparison to the expert to confirm that the signature and thumb impression found on the same are genuine. However, as rightly argued by the plaintiff counsel, when the plaintiff has initially discharged the onus of proof and when the presumption has been rightly taken by the courts below under Section 118 of the Negotiable Instrument Act, it is for the defendants to adduce evidence to rebut the presumption and in such view of the matter, nothing prevented the defendants from taking steps to have the signature and thumb impression found in the suit promissory note examined by an expert in the manner known to law. The above contention of the plaintiff's counsel seems acceptable. Therefore, it could be seen that the argument put forth by the defendants' counsel that the plaintiff has not taken steps to have the signature and thumb impression compared by an expert and therefore, the plaintiff case should fail as such cannot be accepted in any manner.

13. That apart, nothing has been projected by the defendants to warrant any interference in the findings of the courts below that the suit promissory note is a true and genuine document and fully supported by consideration.

14. A reading of the judgment and decree of the courts below would go to show that the courts below have passed a personal decree as against the defendants 2 & 3, who are impleaded as parties in the Suit, as the LRS of the deceased Ramachandran. Therefore, as rightly argued, the courts below should not have passed a personal decree as against the defendants 2 & 3. To that extent, it could be seen that the judgment and decree of the courts below are liable to be set aside. At the most, the defendants 2 & 3 would be liable to pay the suit amount only to the extent of the property of the deceased Ramachandran, which has come to their hands and not been duly disposed of.

15. Barring the above, no other question of law is shown to be involved in this second appeal for consideration by the counsel for the defendants. The counsel for the plaintiff in support of his case, has referred to the decisions reported in AIR 1961 Supreme Court 1316(1) (Kundan Lal Rallaram Vs. Custodian, Evacuee Property, Bombay), 2007 (4) CTC 122 (K.Chinnasamy Vs.Sivagamiammal), the

judgment dated 12.11.2010 and 30.10.2014 rendered by our High Court in S.A.No.154 of 2002 (P.Ramasamy Vs.K.Chinnammal) and S.A.No.228 of 2008 (P. Gnanambal Vs. S.Indiradevi) respectively. The Principles of Law enunciated in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the present case.

In the light of above discussions, the judgment and decree of the courts below are modified to the extent that the defendants 2 & 3 are liable to pay the suit amount only to the extent of the property of the deceased Ramachandran, which has come to their hands and has not been duly disposed of and in other aspects, the judgment and decree of the courts below are confirmed and accordingly, the second appeal is disposed of. No costs. Consequently connected miscellaneous petition is closed.

But at the same time – it was unnoticed by majority of courts and Advocates about the amendment made in 2005 on The Hindu Succession Act, 1956 – Section 6(4)

Section 6(4): After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognize any right to proceed against a son, grandson or great­-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. - For the purposes of clause (a), the expression 'son', 'grandson' or 'great-grandson' shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.

As per the above section it is clear that, No court shall recognize any right to proceed against a son, grandson or great­-grandson for the recovery of any debt due from his father, grandfather or great-grandfather after the commencement act. It has given exception to debts before the commencement of the Act 2005 only.

Speaking of Doctrine of Pious Obligation – It means the moral liability of sons to pay off and discharge their Father's Non-Avyavaharika Debts. Non-Payment of debts is a sin and also a crime. Any person, who died leaving the debts behind cannot go to Heaven. The "Putra" i.e. the son, sons' son and son's son's on by repaying or clearing off such debts, discharges his parted father or ancestor from the indebtedness and enables facilities him to reach the Heaven. This duty or obligation of a son to repay the debts of the deceased father(partner ancestor) is rested upon a special doctrine, known as "The Doctrine of Pious Obligation". However, this obligation extends to Non-Avyavaharika (or vyavaharika) debts only. Avyavaharika debt is one, which is taken for illegal or immoral purpose. Eg:- Gambling, Races etc.

Thus it is clear that, after the amendment of Hindu succession act in 2005 and section 6(4), no court shall recognize any right to proceed against a son, grandson or great­-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt

 

Azhagananth 
on 29 August 2017
Published in Family Law
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