JUDGMENT Verma and Yorke, JJ. - This is a first appeal by the Plaintiff in a suit for the recovery of two sums of Rs. 3,500 and Rs. 5,000 alleged by the Plaintiff to have been deposited by him with the banking firm of the Defendants' family on July 8, 1930 and July 16, 1931. The Plaintiff alleged that on each occasion he was given what he called a "chitthi" or letter signed by the then manager of the family business, Durga Prasad stating the interest on the first deposit as 0-10 6 per mensem and that on the second deposit as 0-11-0 per mensem. According to the Plaintiff's case there had been a banking business ("karobar banking") in the family of the Defendants from the time of their grandfather Seth Ram Chander Das, who died about the year 1924. It was alleged that after the death of Seth Ram Chander Das this business was managed by his son Durga Prasad, who died on August 7, 1931 leaving a widow Mst. Bhupi Kunwar, Defendant No. 4. Plaintiff further alleged that this business was continued by the Defendants Anand Prasad, Har Prasad and Kanti Prasad, of whom Kanti Prasad is a minor and Har Prasad deaf and dumb, sons of Jyoti Prasad, Darga Prasad's brother, who had died in 1923 predeceasing his father Seth Ram Chander Das. The suit was filed on July 5, 1933 and it was definitely and clearly, in a series of different paragraphs of the plaint, alleged that the claim was based on deposit and not on loan. The object of this allegation in the plaint is entirely free from doubt. If there was in the family of Seth Ram Chander Das, Durga Prasad and the present Defendants a banking business, then no question would arise of legal necessity or of any of the points which ordinarily arise in cases of loan, whereas prima facie, as the suit contained a reference to two chitthis, which by appearance are promissory notes, the suit should have been an ordinary money suit based on loans taken by Durga Prasad. To avoid the necessity of proving legal necessity the suit was carefully framed as a suit in which no plea of absence of legal necessity would be open to the Defendants. 2. On behalf of the Defendants a number of pleas were taken. To avoid the necessity of proving legal necessity the suit was carefully framed as a suit in which no plea of absence of legal necessity would be open to the Defendants. 2. On behalf of the Defendants a number of pleas were taken. It was contended that there never was any banking business of the family. It was said that the family if Seth Rim Chander Das, his sons and grandsons was a joint family which possessed joint family property in the shape of zamindari. As regards these two amounts evidenced by the promotes it was said that these were not deposits but personal borrowings by Durga Prasad, who, it was said, had been a spendthrift and had found himself in a position of freedom from restraint upon the death of his father Ram Chander Das and had proceeded to incur numerous debts. It was pleaded that these being personal borrowings of Durga Prasad, even if taken by him as manager of the family estate, were not binding upon the Defendants. 3. The learned Subordinate Judge framed three issues: (1) Was any ancestral joint family banking business carried on by Durga Prasad in 1930 and 1931 (the years in which these two transactions took place)? (2) Was the money in suit deposited by the Plaintiff with the said banking firm? (3) Is the debt in question binding upon the Defendants and are they personally liable? 4. He dealt with the first two issues together and he held that the Plaintiff had completely failed to establish that Durga Prasad was carrying on any joint family banking business in 1930 and 1931 and he also held that the money in suit was not deposited with Durga Prasad in connection with any joint family banking business. On the third issue he held that the debt in question was not binding upon the Defendants and that they were not personally liable. 5. Before dealing with the arguments in the case we think it necessary to emphasize the fact that the Plaintiff's case, deliberately so stated by him, was that the family of Seth Ram Chander Das, his sons and grandsons had a joint family business which was a banking business in which members of the public used to make deposits of money. Before dealing with the arguments in the case we think it necessary to emphasize the fact that the Plaintiff's case, deliberately so stated by him, was that the family of Seth Ram Chander Das, his sons and grandsons had a joint family business which was a banking business in which members of the public used to make deposits of money. The phrase "karobar banking" is used in Paragraphs 2, 3 and 4 of the plaint and in Paragraph 3 of the plaint it is said that the banking business continued for the benefit of the members of the family and all the members were benefited thereby. Other persons also considered this business as reliable and firm and people used to deposit their money with the Defendants on interest. 6. In Paragraph 4 it is said that the Plaintiff too reposed much confidence and had reliance on the banking business of the Defendants and consequently he also deposited money with the joint family of the Defendants. He should of course have said "in the Defendant's bank", but there is no room for doubt about the nature of the claim which was being made. 7. The first question in the case is whether these two sums of money were actually advanced to Durga Prasad. On that question we feel no doubt, in view of the two chitthis or promissory notes (Exs. 17 and 18) dated Asarh Sudi 13, Sambat 1987 and Asarh doem Sudi Ekam Sambat 1988. The wording is much the same in each. It runs: To Messrs. Hira Lal Gordhan Das, From Ram Chandra Das Durga Prasad, Saharanpur. Our compliments to you. We having borrowed (Ex 18 taken') Rs. 3,500 from you have credited the same to you and we shall pay interest thereon at the rate of 0-10-6 (Ex. 18 0-11-0) and shall pay the money to you on demand. Letter written on.... 8. The first letter is signed by Roshan Lal, munim and Durga Prasad and the second by Durga Prasad only. Evidence has been given in support of these two promissory notes and it can hardly be doubted that these two sums were paid over to Durga Prasad We may note that in the first of these two chitthis the words used for "having borrowed" are "udhar lekar", which clearly suggests a loan rather than a deposit. 9. Evidence has been given in support of these two promissory notes and it can hardly be doubted that these two sums were paid over to Durga Prasad We may note that in the first of these two chitthis the words used for "having borrowed" are "udhar lekar", which clearly suggests a loan rather than a deposit. 9. On behalf of the Plaintiff a large volume of documentary evidence was produced which was intended to show that a banking business was carried on and not merely that Seth Ram Chandra Das and after him Seth Durga Prasad did a certain amount of what is commonly called "len den", that is, money leading. Learned Counsel for the Plaintiff Appellant has taken us though a whole series of documents which he argued, induce an inference that a banking business was carried on. We may note first that there is a broad distinction between a banking business and a money-lending business (though it is questionable whether the evidence would even be sufficient to establish that Seth Ram Chandra Das and after him Seth Durga Prasad actually carried on a money-lending "business" and did not rather do a certain amount of money-lending along with management of their zamindari and transactions in connection with, for example, grain). In this connection we have been referred to Tannan's Banking Law and Practice in India, second edition 1933, which is said to be a standard work on banking in this country. The author remarks at Page 30: There being no statutory definition to guide, some of the leading writers on Banking Law have, from time to time, attempted to define the terms. Dr. Herbert L. Hart, author of the well-known treatise 'Law of Banking', says (p. 1):'A banker is one who, in the ordinary course of his business, honours cheques drawn upon him by persons from and for whom he receives money on current accounts.' This definition is based upon the dicta given in a number of decisions beginning with Foley v. Hill. According to this definition the essential function to enable a person, firm or institution lo be regarded as a banker or a bank is that of receiving current deposits against which cheques are to be drawn. 10. The learned author goes on to refer to some cases and particularly to In re. Birkbeck Permanent Benefit Building Society (1912) 2 Ch. According to this definition the essential function to enable a person, firm or institution lo be regarded as a banker or a bank is that of receiving current deposits against which cheques are to be drawn. 10. The learned author goes on to refer to some cases and particularly to In re. Birkbeck Permanent Benefit Building Society (1912) 2 Ch. 183 and to a definition given by Sir John Paget, whom he describes as another great authority. He quotes as follows from Sir John: It is a fair deduction, "says Sir John Paget, reviewing the Birkbeck Building Society case (1912) 2 Ch. 183 and other legal decisions, that no person or body, corporate or otherwise, can be a banker who does not (1) take deposit accounts, (2) take current accounts, (8) issue and pay cheques and (4) collect cheques crossed and uncrossed for his customers. 11. We are prepared to concede (subject to the remarks contained in a decision of this Court to which we shall refer at a later stage) that some moderations of this strict view may be necessary in dealing with the case of what we may call "Native Banks" of the kind which were generally called kothis. These kothis, we understand, used to keep accounts which were accepted as final by all who had to deal with them. They gave no receipts and no pass books and did not make use of cheques, but they operated more or less as bankers receiving deposits and making payments against those deposits on demand. In point of tact the very existence of the two pronotes signed by Durga Prasad in the present case itself throws a doubt on the allegation that the Defendants' family were bankers in any sense whatever. With these preliminary remarks we may come first, as Learned Counsel has chosen to deal with the evidence in that order, to the documentary evidence. 12. Learned Counsel refers first to two decrees in favour of Seth Ram Chander Das, one a mortgage decree and the other a money decree. Neither of these is any indication of the existence of a 'banking' business. He took us next to a number of plaints and decrees in suits instituted by Durga Prasad. In one such case the Defendant had executed a mortgage in favour of the sons and grandsons of Seth Ram Chander Das. Neither of these is any indication of the existence of a 'banking' business. He took us next to a number of plaints and decrees in suits instituted by Durga Prasad. In one such case the Defendant had executed a mortgage in favour of the sons and grandsons of Seth Ram Chander Das. It is true that there were a number of such plaints and decrees but the existence of such plaints and decrees which make no reference to any banking business is no indication whatever that the family of the Defendants ever had anything in the nature of a 'banking' business. 13. Learned Counsel came next to plaints instituted after Durga Prasad's death on the basis of bonds executed in his favour. He laid stress on the fact that the occupation of the Plaintiff was described as money lending, but again it can only be said that money lending is an entirely different thing from banking and even if Seth Ram Chander Das did some money lending and after him his son Durga Prasad continued to do some money lending and after their death Durga Prasad's nephews, the sons of Jyoti Prasad, continued to do some money lending, that would not enable the Plaintiff to get a decree against the Defendants unless he could prove that legal necessity existed for the loans, which might of course be proved by showing that the loans were taken in the ordinary course of business. That however was not the case of the Plaintiff who laid himself out from the very start to avoid any risk of being put to proof of legal necessity. 14. Learned Counsel for the Appellant went on to refer to a number of documents shoeing moneys lent by Ram Chander Das and Durga Prasad and properties acquired by them, apparently with the idea of showing that Durga Prasad continued after the death of Ram Chander Das to manage the family property and what he called the family business as a sound manager. Without having a full knowledge of the whole of the transactions by this family it would be impossible to derive any sound inference from these transactions and in fact a doubt is thrown on the wisdom of some of them by events of later date. Without having a full knowledge of the whole of the transactions by this family it would be impossible to derive any sound inference from these transactions and in fact a doubt is thrown on the wisdom of some of them by events of later date. For instance, Durga Prasad purchased certain property which the Defendants had subsequently to sell in order to meet the debts incurred for the purchase of those properties. 15. Learned Counsel next referred to certain statements made by Seth Ram Chander Das and by Durga Prasad, a statement by Ram Chander Das on June (sic) in which he admitted money lending and the existence of account books and a statement by Durga Prasad on June 12, 1929, in which he said that he had debts outstanding of Rs. 40,000 or Rs. 5,000 and that he kept account books. It was suggested that these debts must represent the moneys of depositors, but there is nothing on the record to support this suggestion. Again on August 24, 1929, in a statement Durga Prasad gave his occupation as zamindari and spoke of his 'shop' and of receiving money from a certain person and giving a Hundi, but that again is no proof whatever of the existence of a banking business. The drawing of a Hundi is something which is done by many persons other than bankers. Learned Counsel went on to refer to certain sale-deeds executed by Anand Prasad in order to pay family debts. One of these is the sale-deed which was executed to pay off money described as borrowed by Seth Durga Prasad for lawful necessity and for purchase of some property out of the joint funds but in his own name. This in no way proves a banking business. The other is more interesting and is, if anything, definitely damaging to the Plaintiff's case. It is a sale of property on April 14, 1932 by Anand Prasad for Rs. 8,000. The executant says that In his lifetime Seth Durga Prasad borrowed money for payment of a prior debt payable by Seth Ram Chander Das, Durga Prasad and for maintenance of the family and for safeguarding the family property. Seth Durga Prasad died childless. I and my brothers, the surviving members of the joint Hindu family, are the owners of the property left by Seth Ram Chander Das and Durga Prasad. Seth Durga Prasad died childless. I and my brothers, the surviving members of the joint Hindu family, are the owners of the property left by Seth Ram Chander Das and Durga Prasad. Further on the executant Anand Prasad says: The creditors are also prepared to bring suits. If suits are brought, I shall be burdened with costs and the family property would be ruined. It would also bring a bad name. 16. The items in respect of which this sale was effected were three "chitthis", all of them signed by Seth Durga Prasad and described as payable by Seth Ram Chander Das and Seth Durga Prasad in favour, two of them, of firm Seth Maman Chand Radha Kishen and the third in favour of Seth Jai Narain. It is clear from this that the word "chitthi" was treated by Anand Prasad himself as equivalent to a promote and the creditors of these chitthis as creditors in respect of loans. In fact at another point in the document he says: The interest of the debts is increasing and the creditors are making pressing demands for their amounts. 17. Learned Counsel sought also to base an argument on a plaint of one Chhater Sen supported by an application for the suit to be struck off. In this plaint (Ex. 24) dated August 18, 1932, Chhater Sen Plaintiff alleged in Paragraph (1) that Seth Durga Prasad and the Defendants Anand Prasad etc. carried on 'banking' jointly in the name of Ram Chander Das and Durga Prasad and in Paragraph (2) that in connection with the 'banking' business, money used to be deposited with the Defendants and they lent it to others on interest or invested it in zamindari properly. Ex. 25 is an application by the Plaintiff which runs as follows: In the above case it is submitted that Anandi Prasad alias Chhottan Lal, Defendant No. 2 has to avoid dispute this day executed and completed a letter in favour of the Plaintiff in respect of the amount claimed. It is therefore prayed that the suit may be struck off. 18. It is therefore prayed that the suit may be struck off. 18. It seems to us to be quite clear that even it this application of Chhater Sen can be said to prove the execution of a promissory note in favour of Chhater Sen for the amount claimed in the plaint which contains these allegations, the execution of such a pronote does not amount to an admission of the tuth of the statements contained in the plaint. At the most it shows that Arandi Prasad and his brothers and Durga Prasad's widow were not prepared to fight Durga Prasad's creditors. All the statements here are the statements of Chhater Sen, who is not a witness in the case and prima facie we doubt whether in the absence of oral evidence to support them they are in any way admissible. Some question was put to Anand Prasad but such admission as he made is no admission in respect of these documents. 19. The last group of documents upon which reliance has been placed for the Appellant consists of extracts from the account books of third persons, showing that these persons had borrowed money from Ram Chander Das Jyoti Prasad and had kept ledger accounts in which they entered the transactions between them and Ram Chander Das Jyoti Prasad. Looking at this evidence in detail the first set of accounts (Ex 21) is proved by Nehal Chand, P. W. 11 who knows nothing personally about his own family's dealings with Ram Chander Das. The accounts he produces relate to transactions of 1905 in respect of which only the ledger is produced while the diary is not forthcoming. Incidentally the account itself is incomprehensible and does not (sic). It certainly is no proof whatever that Ram Chancier Das had any banking business. The witness made some other statements but they will be dealt with along with the oral evidence. Another set of accounts is proved by Piare Lal, but this gentleman's statement makes it clear that he was inimical to Durga Prasad, who was his own cousin. It certainly is no proof whatever that Ram Chancier Das had any banking business. The witness made some other statements but they will be dealt with along with the oral evidence. Another set of accounts is proved by Piare Lal, but this gentleman's statement makes it clear that he was inimical to Durga Prasad, who was his own cousin. All the accounts show is receipts from Ram Chander Das by Piare Lal's firm which did an "arhat" business and which incidentally his failed, so that Piare Lal, apart from other defects, is shown on his own admission to be a man of no standing, who was declared insolvent only three years previous to the present suit. 20. The last group of accounts, a lengthy group, is proved by one Hari Chand whose firm was a commission agency which has ceased to exist. His own firm had not got any banking business but he says that they entered sums received on loan as deposits. It follows that the entry of any moneys in the accounts of firms of this kind does not go to indicate any banking business. The witness is indebted to the Defendants and appears to be almost a pauper. 21. Of these three witnesses two were intended also to prove that certain persons made deposits with the so-called "banking firm" Ram Chander Das Durga Prasad. Nehal Chand while alleging that he advised Mst. Kampiari to deposit three separate sums of Rs. 4,000, 2,000 and 1,300 with Durga Prasad three or four years ago, had to admit that he was not present when these deposits were made and further that pronotes were executed in respect of these deposits It is a curious fact that the documentary evidence in respect of loans by Mst. Kampiari to Durga Prasad, namely, the sale-deed Ex. 1 in favour of Seth Madan Lal dated February 13, 1932, mentions three chitthis or pronotes but shows that the total amount was only Rs. 5,500. 22. Reliance has further been placed on behalf of the Plaintiff on the oral evidence of seven witness apart from the Plaintiff himself. Those witnesses have been criticised in detail by the learned Subordinate Judge and we think that he has rightly refused to place any reliance upon them. 5,500. 22. Reliance has further been placed on behalf of the Plaintiff on the oral evidence of seven witness apart from the Plaintiff himself. Those witnesses have been criticised in detail by the learned Subordinate Judge and we think that he has rightly refused to place any reliance upon them. Girdhari Lal P.W. 5 who does an arhat business in Saharanpur and Shamli, professes to have had only two transactions with Durga Prasad in his life. Once he did business in regard to certain khattis in Shamli and once he deposited Rs. 1,000 not his own money, with Durga Prasad, as lie says be does not know the name of any depositor except himself. Jai Chand Rai P.W. 2 gives oral evidence of a deposit of Rs. 2,000 said to have been repaid after six months and even this amount was lent upon a promissory note and was therefore presumably a loan. He never saw anybody else deposit any money with Durga Prasad. Shiv Narain P.W. 6 purports to prove a deposit by his own son of Rs. 2,000 his separate money with Durga Prasad, which money he says was repaid to him, that is, to the father, but he has to admit that there is no entry in his accounts and that he did not see the deposit made and therefore he has no personal knowledge of the deposit. His evidence is clearly valueless. Sri Ram P.W. 7 claims to have made a deposit himself and to have instituted a suit for its recovery and to have got a decree, but his suit was dismissed in appeal, evidently on the finding that there was no banking business. Shankar Lal P.W. 8 purports to depose to three deposits made by Mst. Jumna Kunwar, but he had to admit that Mst. Jumna Kunwar had brought a suit for recovery of these so called deposits and that on that occasion he himself as a witness had deposed that Durga Prasad took the money by a loan to pay Government revenue. Moti Lal P.W. 12 is stated by the learned Subordinate Judge to be a most respectable witness. But this witness was not prepared to say that Durga Prasad carried on a banking business in the sense of a business as conducted by a bank which receives money on current deposit accounts and pay money on cheques etc. and so on. Moti Lal P.W. 12 is stated by the learned Subordinate Judge to be a most respectable witness. But this witness was not prepared to say that Durga Prasad carried on a banking business in the sense of a business as conducted by a bank which receives money on current deposit accounts and pay money on cheques etc. and so on. In answer to a question whether Durga Prasad carried on any banking business he replied "Money lending is a banking business." He had deposed that people also used to deposit money with Durga Prasad, but he admitted that he could not say if the deposits were made with Durga Prasad as loans, that he had no personal dealings with Durga Prasad and that he could not give any instance of any deposit of money with him. He added the information that Durga Prasad did some cigarette and petrol business. This is scarcely the sort of business which one would have expected a banker to be carrying on Jugal Kishore (P.W. 10) is another witness who gives away the Plaintiff's case entirely. He says that he used to act as a broker for having money deposited in banks but that Seth Ram Chander Das did not give any brokerage to anybody whereas other firms used to give him brokerage. Nonetheless he used to get money deposited with Ram Chander Das. Later on he said that he did not remember the names of the depositors and he next made the illuminating statement that debts and deposits are the same thing. Deposits are made even with those persons who do not carry on any banking business. If deposits are made with a particular firm without its making any demands then such a firm is called a banking firm. 23. The evidence of such a witness is clearly worthless to prove that in fact there was any banking business. 24. Lastly we may refer to the statement of the Plaintiff Gordhan Das himself. He did not produce or offer to produce his account books but relied solely upon the two promissory notes executed in his favour. Gordhan Das himself in cross-examination had to admit that he had deposited money with four different persons and he said that None of the said persons with whom I deposited money carry on banking business. He did not produce or offer to produce his account books but relied solely upon the two promissory notes executed in his favour. Gordhan Das himself in cross-examination had to admit that he had deposited money with four different persons and he said that None of the said persons with whom I deposited money carry on banking business. Further on he said I cannot give the name of any person who might have deposited money with Ram Chander Das before me and again: I do not exactly remember if there are any entries of the name of the firm Ram Chander Das Jyoti Prasad and Ram Chander Das Durga Prasad in our account book. 25. We think that neither the documentary evidence nor the oral evidence is of the smallest service to establish that Seth Ram Chander Das or Seth Durga Prasad or the present Defendants have ever carried on any banking business. It follows that the amounts in suit can not have been deposited with Durga Prasad as alleged by the Plaintiff. There is nothing whatever in this case to indicate that with either Seth Ram Chander Das or any members of the family there have ever been made deposits against which the depositors could withdraw money either by cheque or by any other means whenever they liked to withdraw it. On the contrary what is proved is that Durga Prasad took two loans of Rs. 5,000 and Rs. 3,500 and it was for the Plaintiff to establish that those loans were taken For legal necessity and created debts by which the whole joint family including the present Defendants were bound. 26. Learned Counsel for the Respondents has referred us in this connection to a decision of this Court to which we think it desirable to refer. In Dharam Das v. Ganga Devi (1907) 29 All 773, a Bench of this Court had to consider Articles 59 and 60 of the second schedule of the Limitation Act. In discussing this matter they said that it was not easy to say to what class of cases the legislature meant Article 60 to apply, but they found it unnecessary to come to a decision on the point. holding, as we do, that it is not intended to apply to a transaction which is regarded by the law as a loan. holding, as we do, that it is not intended to apply to a transaction which is regarded by the law as a loan. They went on to remark: Now the authorities cited by the Appellants clearly lay down that ordinarily dealings between a native banker and his customers are in the nature of loans made by the latter to the former. 27. They accordingly refused to apply Article 60 which provides for money deposited under an agreement that it shall be payable on demand, including money of a customer in the hands of his banker so payable, a period of three years which begins to run from the date when the demand is made. 28. Learned Counsel for the Appellant has attempted to support his case that there was a banking business by insistence on the plea that the Defendants were in possession of account books which they had failed to produce. The irresistible inference, he says, is that these account books would have shown that Ram Chander Das and Durga Prasad after him and the Defendants had a banking business which would have been apparent had these account books been produced. Much reliance has been placed upon the two statements made by Ram Chander Das and by Durga Prasad referred to earlier. No doubt Ram Chander Das did admit that he was in the habit of keeping accounts. The admission of Durga Prasad was also one of maintenance of accounts, but it is to be noted that on that occasion Durga Prasad did not produce his accounts although it would appear that they had been summoned from him. It seems however that in that suit Durga Prasad had only been called to prove that he met a certain Kewal Ram at Aligarh on a certain date and he was asked to support his statement by a reference to his accounts which should have shown that he had spent money on going to Aligarh on that occasion. He refused to produce his accounts and said that the key was with his munib who had died. In effect he said in that case that he was not in possession of his account books. He refused to produce his accounts and said that the key was with his munib who had died. In effect he said in that case that he was not in possession of his account books. In the present case Anandi Prasad Defendant has denied receipt of account books from Durga Prasad and the only direct cross-examination on this point was aimed at eliciting an admission that he had produced account books before the income tax Officer. It is clear that Anandi Prasad was not bound to produce his account books in support of his own case if he did not think those account books to be useful or relevant evidence to prove his case, assuming of course that those account books existed. In actual fact the written statement had been filed on August 14, 1933 and a statement was made by the Defendants' counsel on August 29 that Anandi Prasad was not in possession of any bahi khatas, that is, bahi khatas relating to the years 1930 and 1931 and we suppose earlier. The position taken up by the Plaintiff was that the statement made by Anandi Prasad's counsel on August 29, 1933 was untrue and on October 24, 1933, he made an unusual application in which he began by saying that the Defendants had denied the existence of their account books. He went on to say that in fact account books had been kept and would show the money due to the Plaintiff and other persons credited in those account books and he said that that was why the Defendants did not want to produce them. He went on to ask that the Defendants should be ordered to obtain and produce a copy of the statements and orders relating to assessment of income tax passed against Durga Prasad and the Defendants from the year 1925 up to the year 1931, the cost of which the Plaintiff was ready to pay. The Plaintiff of course could not himself obtain these copies from the income tax department. For the Appellant I it is contended that this was a sufficient notice of demand to the Defendants to produce their account books. The Plaintiff of course could not himself obtain these copies from the income tax department. For the Appellant I it is contended that this was a sufficient notice of demand to the Defendants to produce their account books. On the other hand it has been contended on behalf of the Respondents that no presumption can be drawn against a party for non-production of a document unless the party which wants that party to produce it has served upon time the necessary notice and followed the procedure prescribed by law. That procedure is laid down in Order 11, Rules 12 and 13 of the CPC and it is not disputable in the present case that the Plaintiff had entirely omitted to do anything of the kind. In this connection we may refer to the decision of their Lordships of the Privy Council in Bilas Kunwar v. Desraj Ranjit Singh (1915) 37 All 557 at 566 : AIR 1915 PC 96 where their Lordships said with reference to certain accounts not produced: These books do not necessarily form any part of the Plaintiffs' case, it is of course possible that some entries might have appeared therein relating to the bungalow (the property in suit). But it is open to a litigant to refrain from producing any documents that he considers irrelevant, if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appear to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.... It is for the litigant who desires to rely on the contents of documents to put them in evidence in the usual and proper way. If he fails to do so no inference in his favour can be drawn as to the contents there of. 29. In the present case if it was the Plaintiff's contention that the Defendants were in possession of account books which they were refusing to produce he should have taken steps in accordance with the law. Not having done so he is not entitled to ask the Court to draw any inference from the non-production of those documents. 30. 29. In the present case if it was the Plaintiff's contention that the Defendants were in possession of account books which they were refusing to produce he should have taken steps in accordance with the law. Not having done so he is not entitled to ask the Court to draw any inference from the non-production of those documents. 30. Learned Counsel for the Plaintiff-Appellant has sought to fall back on an alternative case that this was an ancestral family business of money lending and it is suggested relying upon Raghunathji Tarachand v. The Bank of Bombay (1910) 34 Bom. 72 that in these circumstances even if these were loans, yet being loans taken by the karta of the family and part of a series of transactions by the family they must be treated as taken in the course of the family business of borrowing and lending money. In that case it was held by Chandavarkar, J. that Under Hindu law a joint family which carries on a trade handed down from its ancestors becomes a trading family; trade being one of its kulacharas (duty or practice) it attracts to itself all the necessary incidents of trade. The rule of Hindu law that debts contracted by a managing member of a joint family are binding on the other members only when they are for a family purpose is subject to at least one important exception. Where a family carries on a business or procession and maintains itself by means of it, the member who manages it for the family has an implied authority to contract debts for its purposes and the creditor is not hound to inquire into the purpose of the debt in order to bind the whole family thereby, because that power is necessary for the very existence of the family. 31. Reference was also made to a case of the Judicial Commissioners Court of Oudh in which 34 Bombay was followed. 31. Reference was also made to a case of the Judicial Commissioners Court of Oudh in which 34 Bombay was followed. This is Baba Din v. Basraj (1914) 18 OC 84, in which it was held that Where a family carries on a business or profession and maintains itself by (sic) of it, the member who manages it for the family has an implied authority to contract debts for its purposes and the creditor is not bound to enquire into the finances of the business, so long as that business forms the purpose of the debts, in order to bind the whole family thereby, because the power to contract debts is incidental to the crying on of the business, from which the family derives its means of substance and support. 32. In order however to made the principles set out in these two decisions applicable it has to be found first that there was a family business or rather, we would say, an ancestral family business of trading or money lending involving both borrowing and lending. Incidentally the business of "len den" by no means invariably involves the assumption that the moneylender is himself in the habit of taking loans. It will be sufficient for us to say that in our judgment this principle is only applicable in cases where there is an ancestral business, viz, for example, the decision of this Court in Ram Nath v. Chiranji Lal 1935 AWR 145 : 57 All. 605. The evidence on the record does not justify a finding that there was in the Defendant's family an ancestral business of borrowing and lending. In any case it is important to remember that the Plaintiff's case was not that it was unnecessary to prove legal necessity etc. because there was an ancestral money lending business bat on the ground that there was a family "banking' business. In the present case the evidence does little further than to prove that like his father Ram Chander Das the son Durga Prasad also did some "len dan". To sum up, the Plaintiff based his case on an allegation of a family banking business. That allegation he has entirely failed to establish. In the present case the evidence does little further than to prove that like his father Ram Chander Das the son Durga Prasad also did some "len dan". To sum up, the Plaintiff based his case on an allegation of a family banking business. That allegation he has entirely failed to establish. He fell back on an ancestral family business of money lending and that also the evidence does not establish, What the evidence does establish is that as manager of this joint family Seth Ram Chander Das was in the habit of doing some money lending as also some business in wheat and the like besides managing his zamindari property. The same course was followed by his son Durga Prasad who seems to have added to these activities some dealings in cigarettes and petrol. In our opinion it is quite clear that the sums alleged by the Plaintiff to have been taken by Durga Prasad as deposits were in fact taken as loans and the Plaintiff has not attempted to establish legal necessity and in fact for reasons best known to himself, very probably the reason stated in the written statement of the Defendants, he deliberately avoided the responsibility of having to establish the existence of legal necessity. In our judgment the Plaintiff's suit was rightly dismissed by the learned Subordinate Judge. There is no force in this appeal which accordingly fails and is dismissed with costs.