MARIAM Vs. MATHEW

JUDGEMENT

(1.) In this appeal by the plaintiffs, the only claim pressed on their behalf, was for the recovery of stridhanam. Defendants 1 to 4 are the children of Ittiavira who died on Karkadakam 4, 1121. The first defendant married the first plaintiff in the year 1111, and the second plaintiff is their daughter. According to the plaintiffs, a sum of Rs. 3000/- was paid in cash to Ittiavirah. Since the year 1118, the first defendant has not been looking after the plaintiffs. In the year 1124, the plaintiffs instituted the suit out of which this appeal arises, for the recovery of the stridhanam amount from the assets of Ittiavirah and for other reliefs. After the death of Ittiavirah, defendants 1 to 4 effected a partition deed, Ext. F, in the year 1124 and the 5th defendant was impleaded as the transferee of a portion of Ittiavirahs properties. According to defendants 3 and 5 who contested the suit, a sum of Rs. 1,000/- alone had been received by Ittiavirah in cash which was afterwards repaid as demanded by the first plaintiff and the first defendant, and for the balance of Rs. 2000/- the first plaintiffs mother had executed a promissory note, Ext. IV, to Ittiavirah, which was later renewed for principal and interest by

(2.) This appeal was contested by the 5th defendant. There is nothing on record to show, that the 5th defendant had any notice of the plaintiffs claim when he took the transfer in his name. The plaintiffs do not claim a charge on any specific item of Ittiavirahs properties and all that they have prayed for, is a decree for realisation out of Ittiavirahs assets. In these circumstances it has to be held, that the plaintiffs have not made out a ground for any relief against the 5th defendant and his properties. The latter has preferred a memorandum of cross objection and in view of the above finding, this does not arise. It is clear that there is no decree for maintenance so far as the 5th defendants properties are concerned.

(3.) With regard to the balance of Rs. 2000/- though the plaintiffs case was one of payment in cash, the finding that the first plaintiffs mother executed a promissory note in favour of Ittiavirah towards stridhanam was not disputed. The Subordinate Judge declined to give a decree to the plaintiffs for the sum of Rs. 2000/- on the ground, that the promissory note amounts only to a conditional payment and that Ittiavirahs assets cannot be charged with liability, the amount of the promissory note not having been realised. In the reply notice issued to the first plaintiff, it was stated, that Ittiavirahs heirs were not prepared to enforce the promissory note and that the first plaintiff might take the necessary steps to collect the amount. In this appeal it was contended for the appellants, on the authority of the decision in Kulathooraiyan Chidambara Iyen v. Ananthakrishna Iyer Janardhana Iyer ( 1953 KLT 768 ) that the execution of the promissory note amounted to payment. The question for decision in the above case was whether a promissory note executed in payment of varasulka was legally enforceable or not, and it was held, following earlier Cochin cases, that it was enforceable. The court also observed that: