PAREETHKUTTY Vs. R D O ALLEPPEY

JUDGEMENT

(1.) Petitioner seeks to quash Ext. P5 order of the 2nd respondent, affirmed in appeal by Ext. P8.

(2.) One Paru executed a mortgage in respect of four items of property, in favour of the petitioner. Thereafter, on 2-11-75, she executed a gift in respect of a part of the mortgaged property, in favour of respondents 3,4 and 5, her daughter and grand daughters respectively, retaining the major portion of the property. When petitioner claimed the mortgage money respondents 3 to 5 set up the defence that they were 'debtors' as defined in S.2(4) of the Kerala Debt Relief Act (Act 17/77). In Ext. P4, petitioner raised a specific objection that no debtor and creditor relationship existed between him on the one hand, and respondents 3 to 5 on the other. According to him, his dealings were only with Paru. It was also contended that, the income and debt of respondents 3 to 5, exceeded the limit of Rs. 3,000/-. It was further contended that unlike in the case of a 'creditor', heirs or successors in interest of a debtor are not comprehended by the definition of 'debtor', and that the gift itself was not bona fide.

(3.) The authorities below held that petitioner had not substantiated his contentions. 2nd respondent further held that the burden of proof was on the petitioner, to prove that respondents 3 to 5 were not 'debtors'. The statement of law is neither precise, nor correct. It is clearly opposed to the view taken by this court in Ouseph Joseph v. Kochunni Moosa ( 1983 KLT 867 ) and Narayani Amma v. Kochu Pillai ( 1987 (1) KLT 184 ).