Ambili Devi v. Kerala State Road Transport Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939** **WP(C).No. 30504 of 2012 (K) ----------------------------** **PETITIONER:** ## **----------** **AMBILI DEVI,** **W/O LATE REJI KUMAR, RAJI BHAVANAM, EDAKKODE, THRIPPILAZHIKOM PO, KUNDARA KOLLAM.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** **RESPONDENT(S):** - **--------------** **1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM-695 001.** **2. THE ASSISTANT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, PUNALUR-691 305.** **3. QUILON DISTRICT STATE TRANSPORT EMPLOYEES CO-OPERATIVE SOCIETY LTD., Q 76, REPRESENTED BY ITS SECRETARY, KOLLAM-691001.** **4. THE ASSISTANT REGISTRAR (GENERAL),** - **CO-OPERATIVE SOCIETIES, NEAR CIVIL STATION, KOLLAM-691 001.** **R1,R2 BY ADV SRI T.P SAJAN,SC R3 BY ADV. SRI.N.SASIDHARAN UNNITHAN R4 BY GOVERNMENT PLEADER SMT MABLE C KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WPC 30504 OF 2012:** ## **------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** ## **----------------------** **EXHIBIT P1: TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER.** **EXHIBIT P2: TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 30.11.2012.** ## **RESPONDENT(S)' EXHIBITS** ## **-----------------------** **R3(A) TRUE COPY OF THE SECURITY BOND EXECUTED BY THE PETITIONER ON 4/12/2006. R3(B) TRUE COPY OF THE PLAINT FILED BY THE 3RD RESPONDENT. R3(C) TRUE COPY OF THE AWARD DATED 13/12/2011. R3(D) TRUE COPY OF THE EXECUTION APPLICATION OF THE 3RD RESPONDENT. R3(E) TRUE COPY OF THE SALARY PARTICULARS OF THE PETITIONER.** **/TRUE COPY/ P.S.TO JUDGE K.V.** ## **C.R.** ## **SHAJI P. CHALY, J.** -------------------------------------------------- **W.P.(C) No.30504 of 2012 ----------------------------------------------Dated this the 5th day of June, 2017** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P2, whereby the salary of the petitioner is sought to be attached on account of the amounts due from her deceased husband, P.K. Reji Kumar. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is working as Peon in the 1[st] respondent Corporation at its Punalur depot, for the last three years. She secured employment on compassionate grounds, consequent to the death of her husband, who worked as a Driver with the 1[st] respondent Corporation. Petitioner received a notice from the 4[th] respondent that an amount of Rs.2,120/- is to be attached from her salary towards recovery of the loan availed by her husband, late Reji Kumar. According to the petitioner, petitioner has not executed any agreement with the 3[rd] respondent Society, enabling respondents 3 and 4 to attach the salary of the petitioner. Moreover, it is contended that, securing compassionate appointment is not a succession by 2 **W.P.(C) No.30504 of 2012** the petitioner to the estate of the deceased. Therefore, according to the petitioner, Ext.P2 can never be sustained, and it is liable to be quashed. 3. Third respondent has filed a counter affidavit refuting the statements and claims and demands raised by the petitioner. That apart, it is contended that, late Reji Kumar was a member of the 3[rd] respondent society, while in service of the 1[st] respondent Corporation and he availed a loan of Rs.52,000/- from the society, on executing a security bond, agreeing to effect recovery of the amount from the benefits including amount payable by the 1[st] respondent to his legal heir, in case of death, and default of repayment of the loan, evident from Ext.R3(a) security bond. Since the principal debtor defaulted the loan amount and since he died, notices were issued to the petitioner. However, the petitioner did not respond to the same. Thereupon, 3[rd] respondent initiated arbitration proceedings against the petitioner and sureties under Sec.69 of the Kerala Co-operative Societies Act, 1969, through the 4[th] respondent arbitrator and secured an award on 13.12.2011, to recover an amount of Rs.95,803/- with interest and cost from the petitioner and others, evident from Ext.R3 3 **W.P.(C) No.30504 of 2012** (c). Thereafter, the society has filed Ext.R3(d) execution application and in accordance with the motion made by the 3[rd] respondent society, attachment of salary of the petitioner at the rate of Rs.2,120/- per month is ordered. Therefore, according to the 3[rd] respondent, the challenge made against Ext.P2 cannot be sustained under law. That apart, it is contended that, since the petitioner secured compassionate employment as a Peon under the 1[st] respondent, she is liable to the debt of her husband, and no manner of interference is warranted, as is sought for in the writ petition. Other contentions are also raised controverting the statements and allegations made by the petitioner. 4. Heard learned counsel for the petitioner, learned Standing Counsel for the Corporation, learned Government Pleader and the learned counsel appearing for the 3[rd] respondent. Perused the documents on record and the pleadings put forth by the respective parties. 5. The question arises for consideration is, whether the salary received by the petitioner on the basis of the compassionate appointment made due to the death of her husband can be treated as an estate 'of' the deceased in order 4 **W.P.(C) No.30504 of 2012** to shoulder the liability on the petitioner, as a legal representative of the deceased Reji Kumar? Sec.37 of the Kerala Co-operative Societies Act, 1969, provides that, notwithstanding anything contained in any law for the time being in force, a member of a society, may execute an agreement in favour of the society providing that his employer or the officer disbursing his salary/wages shall be competent to deduct from the salary or wages payable to him by the employer, such amount as may be specified in the agreement and to pay the amount so deducted to the society in satisfaction of any debt or other demand owing by the member to the Society. On the execution of such an agreement, the employer of the loanee concerned is liable under law, on a requisition made by a Society, to attach the salary and pay the same to the society. 6. True, late Reji Kumar has executed an agreement in favour of the 3[rd] respondent society. Consequent to the death of Reji Kumar, 3[rd] respondent society is entitled to proceed against his legal heirs and the sureties in order to secure a decree for the amounts outstanding. However, on securing the decree, unless and until an agreement is executed by the legal **W.P.(C) No.30504 of 2012** 5 heir of the deceased, 3[rd] respondent society is not entitled to attach the salary in accordance with the terms of the Kerala Co-operative Societies Act, 1969, which is clear and evident from Sec.37 of the Act, 1969. 7. The extent of liability of a legal heir is prescribed under Sec.50 of the Code of Civil Procedure, 1908, which is the principle to be adopted in order to exactly identify the authority of a creditor to proceed against the legal representative of a deceased debtor, which read thus: _“_ _**50. Legal representative** .--(1) Where a judgmentdebtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased._ _(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”_ 8. Section 52(1) of the CPC deals with enforcement of decree against legal representative, which reads that, where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed 6 **W.P.(C) No.30504 of 2012** by the attachment and sale of any such property. Sub-section (2) thereunder provides that, where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally. 9. Therefore, looking at the principles of law provided under Sections 50 and 52 of the CPC, it is clear that a legal representative is liable only to the extent of the property secured by him from the estate 'of' the deceased. In my considered opinion, the estate of the deceased can only be the properties acquired by the deceased person during his life time, or thereafter, as per any legally constituted documents. Merely because petitioner has secured compassionate appointment, that can never be treated as an estate of the deceased. The question with respect to 'estate of the deceased' was considered by a learned Single Judge of this Court in _**'Omana P.K. and others v. Francis Edwin and**_ **W.P.(C) No.30504 of 2012** 7 _**others'**_ [2011 (4) KLT 952] in the context of an award passed by a Motor Accidents Claims Tribunal, and held that the liability of the legal representative is confined to the 'estate of the deceased', which thus means, the property belonging to the deceased person. In a motor accident claims award, there can be certain amounts which are awarded to the estate of the deceased, which can be attached. The other amounts provided to the claimant legal representatives cannot be attached, since the same is provided 'to' the estate of the deceased. True, a compassionate appointment is secured consequent to the death of the debtor. However, it can be found that a compassionate appointment is not one secured by the deceased debtor during his life time, in order to apportion the same to the estate “of the deceased”. 10. The expression 'estate of the deceased' employed in Sections 50 and 52 of the CPC has a class distinction with “estate to the deceased”. Both operate on different fields. While succession of a legal heir to the estate of the deceased is eclipsed with liability of the deceased, the legal heir acquiring rights on estate “to the deceased” is independent of any circumspection contained under estate of the deceased. Which **W.P.(C) No.30504 of 2012** 8 thus also means, such property is free of the encumbrance created by the deceased, capable of being administered by the legal heir, independently. Therefore, in my considered opinion, Ext.P2 attachment made by the 3[rd] and 4[th] respondents to the salary of the petitioner can never be sustained under law, the same being not a property 'of' the deceased entitled to be attached as an estate of the deceased. 11. I have also come across a Division Bench judgment of this Court in _**'Archana T.A. v. Travancore Devaswom Board and Others'**_ [ILR 2015 (4) Kerala 229], wherein the very same specific question was considered elaborately after conducting a survey of the entire gamut of the decisions rendered by the apex court as well as this Court in respect of the liability of the legal heir of a deceased person _vis-a-vis_ the 'estate of the deceased' and 'estate to the deceased', inclusive of the judgment in ' _**Omana P.K. and others'**_ ( _supra_ ). Therein also, the question considered was with respect to attachment of a salary secured by a legal representative on compassionate employment, and the Division Bench has held that, salary, in the absence of any agreement under law, cannot be attached towards the debt of a deceased employee. 9 **W.P.(C) No.30504 of 2012** I am in respectful agreement with the said judgment. 12. On a consideration of the facts and circumstances, the law involved in the subject matter, and appreciation of the judgments rendered by this Court, I have no hesitation to arrive at a definite conclusion that Ext.P2, seeking attachment of the salary of the petitioner, cannot be sustained under law. However, I make it clear that if the petitioner has succeeded to the estate of the deceased, this judgment will not stand in the way of respondents 3 and 4 in executing the award against any such properties. The writ petition is allowed subject to the above observations. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/07.06.2017