KRISHNAN Vs. LEKSHMI AMMAL

JUDGEMENT

(1.) Plaintiffs 1, 3 and 4 are the appellants. The sole defendant in the lower court is the 1st respondent. Plaintiffs 3 and 5 are respondents 2 and 3. The parties are governed by the Hindu Mitakshara Law. Plaintiffs 3 and 4 are the brothers of the 1st defendant. Their father was done Krishna Iyer who died in 1099. 1st plaintiff is the 3rd plaintiffs son and plaintiffs 2 and 5 are the sons of the 4th plaintiff. The 3rd plaintiff is the present manager of the family. Krishna Iyer was the manager of the family from 1059. According to the plaintiffs he continued in management till Makaram 1095 when owing to ill health he relinquished the management in favour of the 3rd plaintiff and finally died in Medom 1099. All assets standing in the name of Krishna Iyer and the 3rd plaintiff are the joint ancestral properties of the plaintiffs family. On 3.11.1098 Krishna Iyer executed two instruments in the form of promissory notes for Rs. 4000 each securing interest at 6 per cent per annum in favour of the defendant and her sister. These two notes have got registered. The copy of the note to the defendant is Ext A. The consideration for both the notes was recited to be natural love and affection. There was no liquid cash available in the family then, and so according to the plaintiff, the recital in the notes could import only an agreement to make each of the daughters a gift of the respective amounts in the future from the cash earnings or from money raised by alienation of family properties or from collections of family outstandings. Such a gift was void ab initio and hence not binding even on the maker himself. In due course the defendant sued plaintiffs 3 and 4 on Ext. A in OS No. 128 of 1110 of the district Court of Trichur. The suit was decreed there and in appeal the decree was confirmed.. Ext. IX is copy of the judgment of the Trial Court and Ext. S copy of the judgment of the High Court. This Ext. S is also reported at page 362 of the Cochin Law Reports, Vol. 33. Afterwards the 5th plaintiff on his behalf and on behalf of the plaintiffs 1 and 2 who were minors then filed OS 119/1118 in the District Court of Trichur to set aside the decree in OS 128 of the 1110. He lost the suit in the District Court and in the High Court. Ext. R is the copy of the High Court judgment in that case. The defendant had been given dowry, ornaments, and other perquisite legitimately due to her at the time of the marriage and thereafter, so that there was no necessity to make any provision for payment of Rs. 4000 as was done in this case. The debt itself was one not binding on the family. In the previous litigation, the real import of the liability "EW" Rina under the Mitakshara Law, the non binding nature of the instrument sued on, and the incompetence of one member of a joint family to make a gift by himself alone had neither been properly placed before the courts nor been considered or decided by them. The status of the family and its capacity to gift away Rs. 4000 out of the family properties had not been advanced by the parties nor considered by the court. The family was then heavily involved to the extent of about Rs. 20,000. It would appear that the Advocate who conducted Ext. S case had made an admission that Ext. A evidenced a debt and was binding on the executant. Such an admission was wrong in law and in fact. This concession had considerably vitiated the findings in the case. This would amount to laches on the part of the Advocate. Besides, there was some subsequent litigation between the defendants son and the plaintiffs family under which there was liability to the extent of Rs. 9000 and interest and costs to be discharged by the family. The fact that there was such a heavy potential debt binding on the family had not been disclosed by the defendant in Ext. IX suit. If that had been done no decree for the full 4000 rupees would have been passed by the court then. Though this a matter subsequent to the decree passed in the case it would have bearing upon the claim of the defendant for the entire sum secured under Ext. A. The plaintiffs wanted the court to give a direction to the defendant that in case any portion of Ext. A debt was binding on the family, the defendant might be directed to proceed against the decree obtained by the family regarding the mortgage amount to the extent of about Rs. 12,000 due to the family. On these grounds the plaintiffs who were the only members of the family had filed the suit to set aside all the decrees passed in the two previous litigations.

(2.) The defendant in the written statement contended that her father Krishna Iyer had at no time relinquished the management of the family, that he had continued in management till his death in Medom 1099, that himself and plaintiffs 3 and 4 had their self acquisitions, that in view of his advancing age and the pitiable circumstance in which she was placed, her father had thought it necessary to render some pecuniary help, that the execution of the original of Ext. A was the result of the same, that as it would have been obviously inconvenient for her to have the money invested elsewhere the father decided to have it invested in the family itself and accordingly executed Ext. A and handed it over to her, that it was got registered in due course, that Ext. A was really a promissory note, that with due regard to the financial position of the family then, this was only a very small amount, that when demand was subsequently made for the same a portion of the interest alone was paid by the plaintiffs 3 and 4, that such payment was got endorsed on the back of Ext. A, that she was forced to file the suit on the date previous to the day of limitation as her brothers did not pay her the sum, that there was a hot contest by the present plaintiffs 3 and 4, that their appeal to the High Court and application to review the High Court decision were dismissed, that without paying her the amount they got the 4th plaintiffs son to file a suit to set aside the decree, that in that case the present plaintiffs 1 and 2 were not impleaded with a view to keep them to file another suit, that they were however impleaded at her instance, that his latter suit was also dismissed by the Trial Court and the appellate court, that while she was executing the decree and bringing the properties to sale these plaintiffs got time to pay the decree amount, that instead of taking steps to discharge the debt they got the present suit filed without the least bona fides, that they applied to restrain her from executing the decree, that there were no laches or gross negligence in the conduct of the previous litigations, that plaintiffs 3 and 4 were then Advocates, that they had advanced all imaginable contentions in the two suits, that their appeals in the High Court were argued by eminent Advocates specialised in Hindu Law, that all their contentions were meticulously considered and decided upon by the trial and appellate courts, that the subsequent suits filed by her son were for the return of monies collected by plaintiffs 3 and 4 on his behalf, that the same could not in any way affect her right to claim the money due under the decree, that there was nothing to show that the family was heavily indebted at the time of Ext. A, that the family was in very affluent circumstances at that time, that the plaintiffs were not competent to ask for a direction how she was to realise her money under the decree, that there was absolutely no bona fides in this suit, that it was barred by res judicata by reason of the decisions in the two suits already on record, that the present suit was based on false, frivolous and vexatious contentions, that the same constituted an abuse of the process of court and that she was entitled to get compensatory costs under S. 32 of the Civil Procedure Code. She therefore pressed for the dismissal of the suit with costs.

(3.) The lower court found that Ext. A was not void, that the present suit was barred by the rule of the res judicata by virtue of the decisions in O.S. 128 of 1110 and O.S. 119 of 1118 and the appellate court decision in the two cases, that the previous decisions were not vitiated by laches or by admission of questions of law by counsel in the matter of assertion of the joint family rights, that the matters subsequent would not in any way affect the present defendants claim recognised by the decree in O.S. 128 of 1110, that there was no reason to disallow the defendants interest on Ext. A amount, that the present suit was frivolous and vexatious and without any bona fides and that the defendant would be entitled to get maximum compensatory costs under the law. The suit was therefore dismissed with costs and the defendant was allowed the maximum compensatory costs of Rs. 500 under S. 32 of the Cochin Civil Procedure Code.