T.A. Shaji v. Sheela and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941** ## **RFA.No.643 of 2011** **AGAINST THE JUDGMENT AND DECREE IN OS 1725/2008 of PRINCIPAL SUB COURT, THRISSUR -----------** ## **APPELLANT/PLAINTIFF:** **T.A. SHAJI, AGED 52 YEARS, S/O.THAYYILVEETTIL ARUMUGHAN, KANIMANGALAM DESOM, VILLAGE, THRISSUR TALUK.** **BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENTS/DEFENDANTS:** - **1 SHEELA, AGED 61 YEARS, D/O.POOVATHUMKADAVIL GOVINDAN, W/O.NELLIPARAMBIL IKKORAKUTTY, AYYANTHOLE VILLAGE, DESOM, THRISSUR TALUK-680003.** **2 BIJOY, AGED 40 YEARS S/O.NELLIPARAMBIL IKKORAKUTTY, AYYANTHOLE VILLAGE, DESOM, THRISSUR TALUK-680003. 3 BIJNA, AGED 38 YEARS, D/O.NELLIPARAMBIL IKKORAKUTTY, AYYANTHOLE VILLAGE, DESOM, THRISSUR TALUK-680003.** **BY ADVS. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2019, THE COURT ON 25.07.2019 DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = RFA No.643 of 2011** **= = = = = = = = = = = = = = = = = = Dated this the 25[th] day of July, 2019** ## **J U D G M E N T** The unsuccessful plaintiff in a suit for realisation of money is the appellant. 2. T.S.Arumughan, the predecessor-in-interest of the plaintiff, and N.N.Ikkorakutty, the predecessor-in-interest of the defendants were the joint licencees for sale of arrack in respect of shop numbers 4, 7, 8 and 10 in the Manarkkadu Range for the period 1987-88. More than `20 lakhs were due to the Government under the head of kist arrears. The plaintiff as legal heir of Arumughan availed the benefit of an amnesty scheme floated by the Government and settled the liability for `15,32,175/-. The liability to clear one half of the said amount namely `7,66,087/- is on Ikkorakutty and after him on his legal heirs. The defendants agreed to pay the amounts, which they failed to honour. It is accordingly that the suit is filed RFA No.643 of 2011 :- 2 :- for realisation of the said amount from the defendants. 3. The defendants denied the alleged agreement to pay the amounts as claimed by the plaintiff. According to them, the business in question was conducted by a partnership firm under the name and style “Silent Wines”. The said partnership firm consisted of 16 partners as evidenced by Ext.B1, the partnership deed. The share of Ikkorakutty in the firm is only 3%. The liability, if any, for payment was for the firm. Ikkorakutty had no personal liability to pay any amounts. 4. The trial court dismissed the suit against which this appeal. 5. Heard the learned counsel on either sides. 6. Ext.A1 certificate dated 04.10.1988 issued by the Excise Inspector, Manarkadu, along with Ext.A11, the information obtained from the Public Information Officer of the Excise Department reveals that, the licence was issued in the joint names of T.S.Arumughan and N.N.Ikkorakutty. At the relevant time, the Kerala Abkari Shops (Disposal in RFA No.643 of 2011 :- 3 :- Auction) Rules, 1974 was in force. Rule 6(22) thereof prohibits transfer of licence. A Full Bench of this Court in Narayanan & Co. v. Commissioner of Income Tax [1996 (1) KLT 546 (F.B)] , with reference to the said Rules, held that licence in the name of one partner cannot be used by a firm. Therefore, the contention of the defendants that the firm constituted under Ext.B1 was carrying on the said business, cannot be entertained. 7. The liability to pay kist is on the licensee. In case of default, Section 28 of the Abkari Act enables the Government to effect recovery under the provisions of the Revenue Recovery Act. In the case at hand, Arumughan and Ikkorakutty were under joint liability to pay the kist arrears. Joint promisors are liable to contribute equally, unless a contrary intention is borne out. In the absence of any plea or proof that the liability as agreed to between them was not in equal proportion, it can only be held that both have to bear the liability equally. 8. In order to ward off the coercive RFA No.643 of 2011 :- 4 :- proceedings under the Revenue Recovery Act, the plaintiff paid off the liability under the Amnesty Scheme. The Government Order dated 04.03.09, bearing No.G.O.(Rt).No.219/09/TD produced in this appeal as additional evidence along with IA 1/19 reveals that revenue recovery proceedings were initiated against the immovable properties of Arumughan and that the plaintiff herein cleared the dues under the Amnesty Scheme. The said document being material for a just and proper decision of the suit is admitted in evidence. Therefore it is evident that, compelled by circumstances, the plaintiff was required to wipe off the entire dues. The learned counsel for the appellant would submit that the liability arose in the year 1988 and the payment was made years later, voluntarily and without even informing the defendants. It is not in dispute that the liability was legally subsisting when the payment was made. The absence of consultation with the joint promisor does not affect the right of contribution. [See Suryanarayana v. Rajalingam (AIR 1933 Madras 382)]. RFA No.643 of 2011 :- 5 :- ## 9. Section 43 of the Indian Contract Act reads thus: “ **43. Any one of joint promisors may be** **compelled to perform** .—When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise. **Each promisor may compel contribution** .— Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract. — **Sharing of loss by default in contribution** . If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares.” 10. In terms thereof, when one of the promisors is compelled to perform the whole of the promise, he is entitled to contribution from the other joint promisor. In the case at hand, the plaintiff having settled the entire liability, is entitled to contribution of 50% thereof, being the share of Ikkorakutty. 11. The main thrust of the arguments of the RFA No.643 of 2011 :- 6 :- learned counsel for the respondent-defendants is that the suit is founded on an alleged oral agreement between the plaintiff and the defendants, whereunder it is claimed that the defendants agreed to pay off the alleged liability of Ikkorakutty; but there is total lack of evidence regarding the alleged oral agreement. In view thereof, the suit has to fail, submits the learned counsel. The liability of Arumughan and Ikkorakutty, on their death, devolves on their legal heirs. Even without an agreement or undertaking by the defendants, they are bound to discharge the said liability. The failure to prove the alleged oral agreement does not affect the right of the plaintiff to claim reimbursement in proportion to the liability of Ikkorakutty. Therefore, the contention of the defendants that, the suit has to fail on the failure to prove the alleged oral agreement, cannot be sustained. 12. However, I am in agreement with the submission of the learned counsel for the appellant that, in the absence of a personal undertaking/ RFA No.643 of 2011 :- 7 :- agreement, the liability of Ikkorakutty cannot be fastened upon the self acquisitions of the defendants. Only the assets of Ikkorakutty that has devolved on the defendants would be answerable for his debt. The defendants cannot be made personally liable for the amounts. Though the plaintiff has claimed for a personal decree against the defendants, the same cannot be granted. In the result, this appeal is allowed. The plaintiff is granted a decree for realisation of `7,66,087/- with interest at the rate of 6% per annum from the date of suit till realisation, from the assets of late N.N.Ikkorakutty, the predecessor-in-interest of the defendants, available in the hands of the defendants. No costs. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge