Koshi Sophiamma v. Bank Of Deccan Ltd Kottayam — 1960 DIGILAW 154 (KER)

JUDGMENT P. Govinda Menon, J. 1. The appellant garnishee was the petitioner in C.M.P. 24 of 1953 in O.S. 99 of 1124 on the file of the District Court, Kottayam. The petitioner had filed objections to the attachment effected by the 1st respondent of certain amounts alleged to be due by the petitioner to the second respondent under a will executed by the petitioner's husband on 25-10-1115. The contention was that there was no subsisting right to be attached and that the amount shown in the will had already been received by the 2nd respondent prior to the attachment. The 1st respondent-decree-holder contended that the alleged payment was not true and that it is only a collusive attempt on the part of the petitioner and the 2nd respondent to evade payment. The learned judge over-ruled the objection of the petitioner and ordered the amount to be produced in Court. It is that order that is now challenged in this appeal. 2. That the court had the right to go into the question and decide the issue when the garnishee denies liability has not been disputed in this appeal. In fact, O.21, R.46 A to R.46 F, C.P.C., makes specific provision for such an enquiry. The only two questions that were argued were (1) whether the judgment-debtor had an attachable interest and (2) whether the debt was subsisting or whether the debt had been discharged. What the appellant contends is that the attachment is void as the 2nd respondent under the terms of the will had only a contingent interest in the sum attached and S.60 sub-clause (m) of C.P.C., directs such an interest not liable to attachment. If on the other hand under the terms of the will Ext. XIII the 2nd respondent has a vested interest in the amount although payment is deferred, then it would not be exempt from attachment. Whether the 2nd respondent took a vested or contingent interest is a question of intention and has to be decided on the construction of the terms of the will. We have been taken through the terms of the will. Para.7 of the will provides that due to love and affection for his son Raju it is decided to give Rs. 25,000/- to him. We have been taken through the terms of the will. Para.7 of the will provides that due to love and affection for his son Raju it is decided to give Rs. 25,000/- to him. The Malayalam words used His wife was directed to pay the amount after the death of the testator when Raju (2nd respondent) attains the age of 35 together with interest due from the date of the death of the testator. Para.8 of the will provides that if she feels that the son would waste the money she is given the option to pay the yearly interest. A reading of the provisions of the will would therefore show that the amount of Rs. 25,000/- was an outright gift; the only thing was payment was deferred for a future date. Venkatasubba Rao, J., observes in Alagirissami Pillai v. Lakshmanan Chetty alias Samuel (50 M.L.J. 79) "It is a well-known rule of construction that if the gift and the direction as to payment are distinct, the direction as to the time of payment does not postpone the vesting. The question is, are there words constituting a gift independent of the direction to pay. If there are, the interest is a vested interest". In the document in that case there was a present gift with a postponed payment and Their Lordships held, "a vested interest is thus created." Here in this case a reading of the terms of the will makes it abundantly clear that there was an immediate vesting of Rs. 25,000/- in the 2nd respondent. The stipulation that interest shall be given in the meantime also shows that a present gift was intended. So this contention fails. 3. The next question is whether the case of discharge set up by the appellant is true and can be taken as proved. In the affidavit filed by the appellant it is stated that Rs. 4000/- was paid to the 2nd respondent by Sri K.T. Koshi, the then Chief Justice of this High Court, Rs. 3000/- was paid to Sri M.U. Issac, advocate as directed by the second respondent, Rs. 3955/- payable by the Eastern Citizens Bank to the petitioner's daughter was paid to the second respondent as directed by the appellant and it is stated that certain other payments were made by cheques and the entire amount of Rs. 25000 has been paid over to the 2nd respondent. 3955/- payable by the Eastern Citizens Bank to the petitioner's daughter was paid to the second respondent as directed by the appellant and it is stated that certain other payments were made by cheques and the entire amount of Rs. 25000 has been paid over to the 2nd respondent. 3 receipts have been produced. Ext-1 is the certified copy of the receipt given by the second respondent to the appellant on 15-6-1946 for having received Rs. 3955/- and C.P.W.1 is one of the attesting witnesses to Ext-1. That is the amount which was due to the sister of the 2nd respondent. No receipt from the sister has been produced to show she had been paid off. She is also not examined as a witness. It is easy for the respondent and the petitioner to jointly get up such a receipt and get hold of a friend of theirs to attest the receipt. Ext. XVII is the certified copy of a similar receipt given by the respondent to the petitioner on 16-3-1116. That is a consolidated receipt for the receipt of Rs. 14,400/- under various cheques.Ext. XVIII is a certified copy of a receipt granted by the 2nd respondent to the petitioner acknowledging receipt of Rs. 9450/-. That takes in the alleged payment of a sum of Rs. 4500/- by Sri K.T. Koshi and also the payment of Rs. 3000/- to Mr. M.U. Issac, advocate. A commission was taken out to examine Sri K.T. Koshi, but for reasons known only to the petitioner Sri K.T. Koshi has not been examined. The only inference that could legitimately be drawn from the non-examination of Sri. K.T. Koshi is that if he is examined he will not support the case of the appellant. Similarly, no explanation has been offered as to why Sri. M.U. Issac has also not been examined. If really Mr. Issac had been paid Rs. 3000/- one would have expected a receipt from Sri Issac. There is no such receipt So apart from the interested evidence of the petitioner there is no other evidence. Better evidence which the petitioner could have easily produced has not been produced in the case. It is curious that no attempt was also made to examine the 2nd respondent as a witness. There is no such receipt So apart from the interested evidence of the petitioner there is no other evidence. Better evidence which the petitioner could have easily produced has not been produced in the case. It is curious that no attempt was also made to examine the 2nd respondent as a witness. Regarding the various payments said to have been made by cheques we have the admission of the petitioner that she used to draw cheques in the name of defendant for her personal use and that defendant used to hand over those monies to her after cashing the cheques. She is not in a position to say how much amount was drawn by her by issuing such cheques in the name of the 2nd respondent. The best way of proving whether the proceeds of the cheques were given to the 2nd respondent towards the amount due under the will would have been to produce her account books. She is one who is paying agricultural income-tax and necessarily must have accounts. No satisfactory explanation has been given why she should withhold the production of this important piece of evidence from the court. It is also unlikely that the petitioner would have paid this amount stipulated in the will before the time fixed therein. The suggestion of the 1st respondent that with a view to defeat the decree-holder the mother and the son had joined together and got up these false receipts is not without force. There is thus no satisfactory and acceptable evidence to show that the amount shown in the will has been paid off. The learned judge was, therefore, right in holding that the plea of discharge set up by the petitioner has not been proved and directing her to deposit the amount in court. The appeal is therefore dismissed with costs to the 1st respondent.