Karnataka High Court
Sri. K S Yellappa vs Sri. D K Umesh on 5 January, 2021
Author: B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
CIVIL REVISION PETITION NO. 371/2016
BETWEEN :
SRI. K. S. YELLAPPA
SINCE DEAD BY HIS LRS
SRI. DARSHAN,
S/O LATE K.S. YELLAPPA
AGED ABOUT 21 YEARS
R/O AT SECRETARIAT TRAINING CENTRE,
KARNATAKA GOVERNMENT SECRETARIAT,
8TH FLOOR, VISHWESHWARAIAH TOWER,
BENGALURU - 560 001.
... PETITIONER
(By SMT. VIDYA SELVAMANI., ADVOCATE FOR
SRI. RAKSHIT K. N., ADVOCATE)
AND :
SRI. D. K. UMESH
S/O DASE GOWDA,
AGED ABOUT 32 YEARS
R/O AT NO.C-524 (8/1),
SAMEERAPURA MAIN ROAD,
K.G. NAGAR,
BENGALURU - 560 019.
... RESPONDENT
(SERVICE IS HELD SUFFICIENT VIDE ORDER DATED
11.03.2019)
2
THIS CIVIL REVISION PETITION IS FILED UNDER
SEC.18 OF KARNATAKA SMALL CAUSES COURT ACT.,
AGAINST THE JUDGMENT AND DECREE DATED
28.07.2016 PASSED IN SC NO. 436/2015 ON THE FILE OF
THE I ADDL. SMALL CAUSES JUDGE AND XXVII ACMM,
BENGLAURU (SCCH-11), DECREEING THE SUIT FOR
RECOVERY OF MONEY.
THIS PETITION COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The defendant in S.C.No.436/2015 on the file of
the I Additional Small Causes Judge and XXVII
Additional ACMM (for short, 'the Small Causes Court')
has preferred this petition impugning the judgment
dated 28.7.2016 whereby the respondent's suit for
recovery of money is decreed directing the petitioner to
pay a sum of Rs.1,00,000/- with interest at the rate of
6% per annum.
2. The respondent's suit in S.C.No.436/2015 is
for recovery of a sum of Rs.1,45,000/- with interest at
the rate of 21% per annum. The respondent has
asserted that he lent a sum of Rs.1,00,000/- to the
petitioner's father in the month of April 2012 and in
consideration thereof, the petitioner's father executed a
Promissory Note and a Consideration Receipt (Exs.P1
and P.2 dated 27.4.2012). The petitioner's father died
thereafter leaving behind the petitioner as his legal
representative and the petitioner has not repaid this
amount despite issuance of the legal Notice dated
21.01.2015. As such, the petitioner would be liable to
pay a sum of Rs.1,45,000/- which would be principal
amount and interest calculated at the rate of 21% from
25.4.2012 till the date of institution of the suit.
3. The petitioner contested the suit asserting
inter alia that his father had not executed any
Promissory Note/Consideration Receipt and that the
suit filed against the petitioner for recovery of debt given
to his father is bad in law and is liable to be dismissed
in limine.
4. The respondent - plaintiff examined himself
and the scribe of Exs.P.1 and P.2 (Promissory Note and
Consideration Slip) as witnesses in support of his suit
claim while the petitioner examined himself in support
of his defense. The Small Causes Court, on
appreciation of evidence, has concluded that the
petitioner, who asserted that Exs.P.1 and P.2 did not
bear his father's signature, has not been able to
establish his defense, and the petitioner in the light of
definite evidence should have taken some measures
such as examining a handwriting expert to establish his
case that these exhibits did not bear his father's
signature.
5. The learned counsel for the petitioner argues
relying upon a decision of this Court in Venkatesh vs.
Mahesha, CRP No.211/2016 (SC) decided on 21.10.2020
that unless the respondent pleaded and established that
the petitioner on the demise of his father (the debtor)
inherited certain asset or estate, the petitioner cannot
be made liable and in fact this is the core of the
petitioner's defense in contending that the suit filed
against the legal heir is bad in law. However, this
question has not been considered by the Small Causes
Court. The learned Counsel emphasizes that not only
the pleadings and the evidence are silent about any
inheritance by the petitioner from his father but even
the legal notice issued prior to the institution of the suit
is silent in this regard. Even otherwise, there is nothing
on record to indicate that the petitioner has inherited
any asset or estate from his father. As such, the petition
requires to be allowed and the impugned judgment be
set aside dismissing the suit.
6. This Court in similar circumstances has held
as follows:
"A bare reading of the plaint averments
would disclose that there is no whisper about the
plaintiff inheriting any asset or estate of the
deceased - father of the defendant and neither
there is any pleading nor evidence to demonstrate
that the defendant has inherited any of the
assets of deceased-Chikkanna, the father of the
defendant. It is settled law that the legal heirs
would be liable to the debt of the deceased-father
to an extent of inherited estate or asset of the
deceased. Unless the plaintiff pleads and proves
that the defendant has inherited the estate or
asset of the deceased, the plaintiff would not be
in a position to recover any debt from the
defendant who is the son of deceased person
who had apparently taken loan. As the plaintiff
has failed to plead or prove that the defendant
inherited or succeeded to the estate of the
deceased, the defendant cannot be made liable to
pay the amount borrowed by the deceased-father
personally."
Further, this Court has emphasized that with the
amendment to Section 6 of the Hindu Succession Act,
1956 by the Amendment Act of 2005, there cannot be
any liability on the ground of pious obligation unless a
plaintiff is able to demonstrate that the defendant has
inherited some asset or estate from the deceased debtor.
7. On perusal of the pleadings and the
evidence, this Court is of the considered view that it is
irrefutable that the respondent has neither pleaded nor
established that the petitioner has inherited any asset
or estate from his father, and if this remains
incontrovertible, there cannot be a decree against him.
The Small Causes Court has failed to consider this
aspect and this failure has resulted in an irregular
exercise of jurisdiction. As such, the writ petition is
allowed and the impugned judgment and decree passed
by the I Additional Judge, Court of Small Causes &
XXVII ACMM, Bangalore in SC No.436/2015 dated
28.07.2016 is set aside dismissing the suit.
SD/-
JUDGE
nv
