IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR FIRST APPEAL No.668/2007 C/w REGULAR FIRST APPEAL No.654/2007 In RFA No.668/2007 BETWEEN:
1. Smt.Vijayalakshmi W/o late P.A.Nagaraja Gupta, Hindu, Major, 2. Sri.P.N.Rajendra S/o late P.A.Nagaraja Gupta, Hindu, Major, 3. Sri.P.N.Venkatesh S/o late P.A.Nagaraja Gupta, Hindu, Major, All are residing at No.150, 1st Floor, 10th Main, Srinagar, Bengaluru – 19.
(By Sri.H.R.Ananthakrishna Murthy, Advocate) …Appellants AND:
Sri.M.S.Aswatha Narayana Setty S/o Sri.Sunku Muddaiah Setty, Hindu, Major, Merchant, Mydanahalli, Madhugiri Taluk, Tumkur District.
(Respondent served and unrepresented) …Respondent This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure against the Judgment and decree dated 16.12.2006 passed in O.S.No.5798/1994 on the file of the XXXI Additional City Civil Judge, Bengaluru City, CCH No.14, decreeing the suit for recovery of money.
In RFA No.654/2007 BETWEEN:
1. Smt.Vijayalakshmi W/o late P.A.Nagaraja Gupta, Hindu, Major, 2. Sri.P.N.Rajendra S/o late P.A.Nagaraja Gupta, Hindu, Major, 3. Sri.P.N.Venkatesh S/o late P.A.Nagaraja Gupta, Hindu, Major, All are residing at No.150, 1st Floor, 10th Main, Srinagar, Bengaluru – 19.
(By Sri.H.R.Ananthakrishna Murthy, Advocate) …Appellants AND:
Sri.Sathyanarayana Setty, S/o M.S.Aswatha Narayana Setty Hindu, Major, Merchant, Mydanahalli, Madhugiri Taluk, Tumkur District – 572 101.
(Notice to respondent held sufficient V/o dated 29.06.2017) …Respondent This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure against the Judgment and decree dated 16.12.2006 passed in O.S.No.5797/1994 on the file of the XXXI Additional City Civil Judge, Bengaluru City, CCH No.14, decreeing the suit for recovery of money.
These Regular First Appeals coming on for Orders, this day, the Court delivered the following:
JUDGMENT These two appeals came up for disposal as the defendant is common in both the matters and they are clubbed together by the trial Court.
2. These two appeals by the defendants/appellants are directed against the judgment and decree dated 16.12.2006 passed in O.S.No.5797/1994 C/w O.S.No.5798/1994 by the learned XXXI Additional City Civil Judge, Bengaluru wherein both suits came to be decreed.
3. Both the suits were filed for recovery of money by the respective plaintiffs against the defendant-Sri.P.A.Nagaraja Gupta S/o Late P.Aswathanaryana Setty.
4. In order to avoid overlapping and confusion, the parties are addressed in accordance with their ranking as stood before the trial Court.
5. Learned counsel Sri.H.R.Ananthakrishna Murthy appearing for the appellants is present. Respondent has not engaged the services of counsel. Hence, respondent is shown as party-in-person.
6. The proceedings came to be initiated against defendant-Sri.P.A.Nagaraja Gupta because on 29.09.1991, the plaintiffs in O.S.No.5797/1994 and O.S.NO.5798/1994, lent a sum of Rs.60,000/- each to him by executing demand promissory note. The transaction is stated to have been taken place at Mydanahalli, Madhugiri Taluk in Tumkur District. Despite bringing to the notice of the defendant, the amount was not repaid and hence, suits came to be filed against Sri.P.A.Nagaraja Gupta. The details are under:
1. Suit in O.S.No.5797/1994 is filed by Sri.Satyanarayana Setty S/o M.S.Aswathanarayana Setty against Sri.P.A. Nagaraja Gupta for recovery of a sum of Rs.97,900/-.
2. Suit in O.S.No.5798/1994 is filed by M.S.Aswathanarayana Setty S/o Sunku Muddaiah Setty against Sri.P.A.Nagaraja Gupta for recovery of a sum of Rs.97,900/-.
7. Each of the plaintiffs in O.S.No.5797/1994 and O.S.No.5798/1994, the lenders have lent a sum of Rs.60,000/- each on 29.09.1991 to the defendant by executing a demand promissory note. The total amount payable on the date of filing of suit in O.S.No.5797/1994 and in O.S.No.5798/1994 was Rs.97,900/- each.
8. The defendant Sri.P.A.Nagaraja Gupta entered appearance and denied transaction and the matter was tried by the trial judge.
9. The trial judge was accommodated with oral and documentary evidence of the respective plaintiffs in both the matters and documents were marked as Exs.P1 to P4. Sri.Rajendra S/o late Sri.P.A.Nagaraja Gupta was examined as DW1 and documents were marked as Exs.D1 to D7 and in Court, documents were marked as Ex.C1, C1(a), C2, C2(a) to 2(g).
10. The matter was tried with reference to execution of demand promissory note dated 29.09.1991, consideration receipt and the limitation aspect. Since Sri.P.A.Nagaraja Gupta was reported dead on 26.03.2002 during the proceedings, his wife Smt.Vijayalakshmi-defendant No.1(a), sons Sri.P.N.Rajendra and Sri.P.N.Venkatesh defendants No.1(b) and 1(c) were brought on record as legal representatives of deceased Sri.P.A.Nagaraja Gupta.
11. Issues were also framed in this connection regarding the liability of legal representatives to discharge the loan that was borrowed by Sri.P.A.Nagaraja Gupta. It is necessary to place on record that both the suits were decreed and each of the plaintiffs in O.S.No.5797/1994 and O.S.No.5798/1994 is held entitled to recover sum of Rs.97,900/- each together with future interest over principal sum of Rs.60,000/- from the date of suit till this day at the rate of 9% p.a. and thereafter at the rate of 6% till realization, from the present LRs of the deceased defendant. The amount lent in both the cases were borrowed on the basis of demand promissory note, which is stated to have been executed by Sri.P.A.Nagaraj Gupta. The same is challenged by the legal representatives of the deceased defendant.
12. Learned counsel Sri.Ananthakrishna Murthy appearing for the appellants would submit that the judgment and decree directs the payment of decreetal amount by the defendant in both the cases. The learned counsel submits that decree cannot be enforced personally against the legal representatives of deceased Sri.P.A.Nagaraj Gupta. The appellants are stated not to have inherited any property from Sri.P.A.Nagaraja Gupta.
13. The question that arise for consideration is that whether the legal representatives of deceased defendant are personally liable for payment of decreetal amount or not? The number of points that came up for consideration would be that there is no denial regarding the relationship between the deceased Sri.P.A.Nagaraj Gupta and the legal representatives who are stated to be the widow and children of said Sri.P.A.Nagaraj Gupta.
14. The suits were filed on the basis of demand promissory note and that there is no mortgage or pledge of the property to secure the repayment. In the said circumstances, the liability of the legal representatives of the deceased defendant cannot exceed the amount of estate, if any, inherited by them from the deceased defendant Sri.P.A.Nagaraj Gupta.
Learned counsel for appellants would submit that the appellants are questioning the liability part on them exclusively.
15. The pattern of decree where the operative portion is as under:
“For the foregoing reasons, both these suits of the plaintiffs vide O.S.Nos.5797/94 and 5798/94 stand decreed with costs as here under:
Each of the plaintiffs in O.S.Nos.5797/94 and 5798/94 is held entitled to recover sum of Rs.97,900/- together with future interest over principal sum of Rs.60,000/- from the date of suit till this day at the rate of 9% p.a. and thereafter at the rate of 6% till realization, from the present LRs of the deceased defendant.”
16. Invariably, the decree is stated to have been drawn in accordance with the operative portion of the judgment. The clear position that devolution of law whether contractual or otherwise on the legal heirs of the deceased defendant cannot exceed beyond the estate, if any, inherited. Thus, in the circumstances, the trial Court has erred in directing the legal heirs of the deceased defendant to pay decreetal amount by creating independent liability which is liable to be set aside.
Accordingly, appeals are partly allowed. Insofar as exclusive personal liability on the legal heirs of the deceased defendant is set aside. The decree is applicable to make good of property that was under the ownership of Sri.P.A.Nagaraj Gupta.
Sd/- JUDGE UN