Nanu Pillai v. Maniaru — 1950 DIGILAW 124 (KER)

Judgment :- 1. This appeal is filed by defendants 10, 17, 55, 66, 69 and 70 against the judgment and decree of the District Judge of Quilon in O.S. 98 of 1100 on his file. The suit was by certain junior members of a Malayala Brahmin Illom for removal of the 1st defendant a Karnavan from management for declaration of the 2nd defendant, the senior ananthiravan as unfit for managership, and for setting aside as many as 43 alienations of family properties made by defendants 1 and 2 in conjunction with certain other members of the family. 2. The District Judge first disposed of the suit decreeing the same as sued for except in respect of some of the alienations. At the instance of some of the defendants alienee, the decree was set aside in part and the suit was restored to file and was again disposed of by the learned judge by the decree dated 21st Kumbhom 1121, against which this appeal is filed. 3. It was represented before us by both sides that the appeal, in so far as it related to the 10th defendant-appellant, may be dismissed as he has adjusted the matter with the plaintiffs- respondents out of court and certain registered documents have been produced to evidence the adjustment. The appeal is accordingly dismissed so far as it relates to the 10th defendant-appellant. 4. The remaining appellants are interested only in three transactions and they are evidenced by Exts. III, V and XXIX. These are possessory mortgages for Rs. 600, Rs. 330 and Rs. 100 respectively. The learned judge considered these transactions in paragraphs 11, 12, and 24 of his judgment and came to the conclusion that they are supported by considerations. However, the learned judge did not find his way to upholding these transactions on the ground that necessity of the family has not been established by the alienees on whom in his view is the onus to establish it. The learned judge based his conclusion also on the ground that the claimants-creditors had not proved application of the money borrowed. 5. The finding of the learned judge on the question of consideration was not canvassed before us. Mr. Ramakrishna Pillai learned Counsel for the plaintiffs-respondents frankly conceded that the finding as to the consideration has to be upheld. The learned judge based his conclusion also on the ground that the claimants-creditors had not proved application of the money borrowed. 5. The finding of the learned judge on the question of consideration was not canvassed before us. Mr. Ramakrishna Pillai learned Counsel for the plaintiffs-respondents frankly conceded that the finding as to the consideration has to be upheld. Thought the Malayala Brahmana Act III of 1106 (Travancore) is applicable to the parties, transactions in question being of a date anterior to the coming into force of that Act. The case falls to be decided according to law prevailing at the time of the transactions. That law so far as is necessary may be thus stated: Debts contracted by a Karnavan would be presumed to be binding on the tarwad. This presumption extends to debts contracted by junior members on behalf of the tarwad if they had the antecedent consent of or if they had been afterwards accepted and ratified by, the karanavan junior members who are not parties to the contracting of the debts are entitled to impeach such debts as not binding upon the persons impeaching the debts to show how those debts are not binding. They may succeed in discharging that onus if they show that the money borrowed was actually used for a non-tarwad purpose or that the financial position of the family was such that no loan at all need had been taken. On this being shown, the burden shifts on to the shoulders of the creditor who can either prove that a necessity existed or that he was satisfied on a bonafide enquiry that such a necessity existed and that on that faith the loan was given, in which case, he would succeed in getting a decree against the family even though it may be found that the necessity did not really exist. What would be the nature and quantum of evidence required for a court to find that the burden shifts from the shoulders of one party to the other is a matter depending upon the facts of each case and no cut and dried rules can be laid down by applying which it could be asserted whether the burden has shifted or not. The creditor need concern himself only with an existing necessity and need not consider how that necessity was brought about, provided that he did not participate in creating that necessity. Even in a case where, by proper management, a family would be free from the necessity to borrow, and such a necessity is brought about by mismanagement of those entrusted with the management, a debt contracted for meeting the necessity would bind the family if the creditor advancing the amount is unconnected with the mismanagement. A creditor need not see to the application of the money lent by him. This was laid down by Their Lordships of the Privy Council as early as in Hunoomanperasaud Panday's case (VI Moore's IA 393) and followed ever after. 6. These principles are well settled. The learned counsel for the respondents-plaintiffs, after referring to the authorities, particularly to a judgment of Sadasiva Iyer, C.J., in Krishnan Aiyappan v. Padmanabhan Raman (XXI TLR 239) which was followed by Saharanama Iyer, J. in Sankunny Menon v. Iyyakku and others (XXIV Cochin LIZ 86), fairly and frankly conceded that the view of the learned District Judge, that on the facts of this case the creditors should have, besides proving consideration, also proved the necessity for the loan and application of the money borrowed, cannot be supported. His only contention was that though the debts in question were real and in law there will be a presumption of family necessity in respect thereof, the junior members are not concluded thereby and that they are free to rebut the presumption of necessity. He also contended that the plaintiffs have rebutted the presumption. To support this contention, he relied upon the evidence of P.W.1 the 1st plaintiff who says that the family had an income of 3,000 paras of paddy and Rs. 1000, per year. He also relied upon the evidence of the 6th defendant as D.W. 14 who admitted that the family was possessed of paddy lands to the extent of 100 paras of seed-sowing area. He said that there were only a few members in the family and that this income must have been sufficient to meet the expenses of the family and leave a surplus. To appreciate this contention one had to look into the history of the family. The family consisted of a father, mother and 4 sons. He said that there were only a few members in the family and that this income must have been sufficient to meet the expenses of the family and leave a surplus. To appreciate this contention one had to look into the history of the family. The family consisted of a father, mother and 4 sons. The father being old, executed, in conjunction with his 4 sons a family karar, Ext. A., on 14.12.1093, whereby of the three estates of the family, the Adoor estate was put in the management of the 1st defendant who is the eldest son and his immediate younger brother who is now no more. The Quilon estate was put in the management of the 2nd defendant who is the third son and his immediate younger brother who is now no more and whose widow is the 3rd plaintiff. The third estate which the family had was directed to be managed by these two branches in alternate years, to equalise the benefit or detriment as the case may be, arising out of such management. Provision was made for the discharge of the debts specified in the karar allotting specific debts to the respective branches living in the respective estates. Provision was also made for the maintenance of the parents and for other expenses in connection with the family by way of entertaining relations and guests. Persuant to this karar, the two branches lived separately, and managed their respective estates as provided thereunder. In the course of this arrangement, however, some debts had to be incurred which occasioned another karar on 21.5.1099, Ext. P, by which time the younger brother of the 1st defendant was no more. Ext. P is by the father as also by the three surviving sons. This karar confirms the original karar, Ext. A and the management thereunder and in fact perpetuates it. Provision is made for the discharge of an amount of Rs. 2000/- which was the debt incurred by the branch of the 1st defendant and another amount of Rs. 2923-8-0 which was a debt contracted by the branch of the 2nd defendant. It is provided that these debts should be discharged by each of the two branches by execution of possessory mortgages. Hypothecations are prohibited as they would lead to the accumulation of interest. Outright sale of the properties is also prohibition. 2923-8-0 which was a debt contracted by the branch of the 2nd defendant. It is provided that these debts should be discharged by each of the two branches by execution of possessory mortgages. Hypothecations are prohibited as they would lead to the accumulation of interest. Outright sale of the properties is also prohibition. No details of the above debts of the respective branches are given in Ext. P which mentions only the total amount of the debts as aforesaid. The three documents in question in this appeal were executed by the 2nd defendant in conjunction with his deceased younger brother who was a member of that branch. They are within three, four and nine months from the date of Ext. P and the total amount taken under the three documents is well within the limit of the debt of the 2nd defendants mentioned in Ext. P the total being only Rs. 1730. The documents recite that the advances were taken for the purpose of discharging the debts mentioned in Ext. P. 7. The father died within a few months of the date of Ext. P. The surviving sons appear to have borrowed moneys for purposes of treatment, the funeral and other obsequial ceremonies and executed a karar in the year 1100 making provision for these debts and for the continuance of the management pursuant to the provisions of Exts. A and P. These facts appear from the plaint itself. In the year 1103, the 1st defendant took a release from the 2nd defendant of his rights as manager under the earlier karars and provision was made for his maintenance. The plaintiff was a minor and attained majority, according to him, only in the year 1096. He is the son of the 1st defendant and belong to his branch. He is thus hardly likely to have had any knowledge about the income of the properties allotted to the respective branches. In fact he does not pretend to be acquainted with the details either of the income or of the expenditure of the family. He refers to the income as 3,000 paras of paddy and Rs. 1000/- per year, in a vague manner and that is the total income of the entire properties of the family. In fact he does not pretend to be acquainted with the details either of the income or of the expenditure of the family. He refers to the income as 3,000 paras of paddy and Rs. 1000/- per year, in a vague manner and that is the total income of the entire properties of the family. Again the income of the family, whatever it might have been, was not even sufficient for the maintenance of the family members and other family expenses admitted in paragraph 6 of the plaint which raises a complaint against defendant 1 and 2 to the effect that though the income of the family would have been sufficient for all the expenses and even to leave a surplus, defendants 1 and 2 having squandered the income for unnecessary expenses, that part of it which was made available for family expenses was insufficient therefore. If so, there is good reason to believe the truth of the statement contained in Ext. P as to the existence of debts and that those debts, whatever the amounts were, could not have been discharged from out of the income. Apart from this, the very fact that Ext. P provides for execution of possessory mortgages for discharge of the debts, whose existence and binding character are of the debts, and admitted therein, would indicate that the income was not such as, at any rate, to leave a surplus towards discharge of debts. Ext. III is a subsequent possessory mortgage over the properties which were already in the possession of strangers on possessory mortgages. It refers to as many as 4 mortgages executed by the father of defendants 1 and 2 in the years 1083, 1087 and 1091 and 1094. The mortgagee of Ext. III was directed to redeem these earlier mortgages for which a sufficient part of the consideration was reserved. The fresh advance under Ext. III is only Rs. 600. Exts. 33, 39 and 40 would show that the father had incurred other debts as well. Even the learned counsel for the respondents admitted that the father's debts would amount to over Rs. 4000. In the plaint, however, the father is extolled as a very good karnavan who has done a lot of good for the family. 600. Exts. 33, 39 and 40 would show that the father had incurred other debts as well. Even the learned counsel for the respondents admitted that the father's debts would amount to over Rs. 4000. In the plaint, however, the father is extolled as a very good karnavan who has done a lot of good for the family. With the extent of properties in his possession and a small number of members to be maintained, if the father should have incurred debts and those debts should have been subsisting even at the time of Ext. A, it is clear that the income of the family could not be what is stated by the 1st plaintiff for, if that was the income, the expenditure should have been in excess of that income. The plaintiffs raised complaints only against defendants 1 and 2. No complaint is raised against the father nor against the deceased younger brothers of defendants 1 and 2. The father and these younger brothers were parties to Exts. A and P and the 2nd defendant's younger brother was party even to the transactions which constitute the subject-matter of this appeal. It is thus clear that the plaintiffs have not succeeded in rebutting the presumption of family necessity which the law allows in favour of the creditor. It is not necessary in this case for the creditor to depend even upon that presumption because this is not a case where a debt is contracted for the first time for which necessity to borrow has to be found. This is a case where debts existed and these transactions impeached evidence only the execution of new documents under which moneys are borrowed for the purpose of discharging these debts. It is not incumbent upon a creditor who advances money for discharging an existing debt of a family when the karnavan, the senior ananthiravans and several other ananthiravans, all alike admit the existence and binding character of the debt, to make any further enquiry as to the existence of the debt. Law does not call upon him to see to the application of the money advanced by him. Under the circumstances we consider that the only conclusion possible in this case is that Exts. III, V and XXIX, which are impeached, are not open to impeachment and that the transactions are valid and binding upon the family and upon the properties. 8. Under the circumstances we consider that the only conclusion possible in this case is that Exts. III, V and XXIX, which are impeached, are not open to impeachment and that the transactions are valid and binding upon the family and upon the properties. 8. The appeal in so far as these transactions viz,. Exts. III, V and XXIX and appellants-defendants 17, 65, 66, 69 and 70 are concerned, is therefore allowed with proportionate costs. The appeal in so far as it relates to Ext. XXV and the appellant -10th defendant is concerned will, as already mentioned, stand dismissed. Appeal partly allowed.