Balakrishnan and Others being minors by guardian Kalu vs Chittor Bank Proprietor R. Subramania Aiyar, by Muktiyar C.S. Anantakrishna Aiyar and Others

Varadachariar, J.—These appeals arise out of O.S. Nos. 17 and 39 of 1931 on the file of the Sub-Court of Palghat. Some of the questions

raised in these suits have already been dealt with by us in the judgment delivered by us in Appeals Nos. 253 and 350 of 1933. The present

appeals have been preferred by the defendants 7 to 9 in these suits. They are the sons of the fifth defendant who joined as a surety in the

promissory notes which gave rise to these suits. The fifth defendant has been held liable for the debts; the appellants contend that as these debts

were not borrowed for any necessity of their family the family property should not be held liable for the discharge of the debts.

The lower Court applied the rule of the Hindu Law and held that as the debts are not illegal or immoral the sons'' shares in the family property

are liable to be proceeded against for recovery of the father''s debt, independently of any question of family necessity. We may mention that in the

first instance these defendants were not impleaded as parties to the suits. They got themselves impleaded on their own application and in the

written statement filed by them they alleged in paragraph 2 that under the custom of the Samudayam of these defendants the suit debt cannot be

made binding on the family of these defendants. On the 31st August, 1931, an issue (Issue No. 6 in the case) was framed which raised the

question whether the debt is binding on the family of the fifth defendant. The trial however did not commence till early in 1933 and about a fortnight

before the commencement of the trial the issues were recast on some objection raised by the plaintiff as to where the onus of proof should be cast.

For reasons which do not appear on the record the reference to the family of the fifth defendant was omitted in the amended issue. The result was

that no evidence was let in one way or the other on the question of custom mooted in paragraph 2 of the written statement of the appellants.

It has now been argued before us that the Ezhuva community of Palghat to which the appellants belong should nor* be held to be wholly

governed by the Hindu Law though they follow the Makkatayam and not the Marumakkatayam system. Reliance has been placed in this

connection upon the decision in Raman Menon v. Chathunni ILR (1893) 17 Mad. 184 as recognising that the mere adoption of the Makkatayam

system of inheritance by a particular family does not involve the conclusion that the family has adopted all the rules of the Hindu Law. Mr. Krishna

Aiyar admitted that it has been held by this Court that unlike the Nambudhiris of Malabar the Ezhuva has adopted the rule of partibility. See Velu

v. Chamu ILR (1898) 22 Mad. 297. But he nevertheless maintains that as held by this Court in Kunhi Kutti Ammah v. Mallapratu ILR (1913) 38

Mad. 527 in respect of Nambudhiris, the principle of the sons'' obligation to pay the father''s debts ought not to be applied to the Ezhuvas. We are

unable to see any justification for this contention.

The decision in Kunhi Kutti Ammah v. Mallapratu ILR (1913) 38 Mad. 527 proceeds on the theory that the Nambudhiris have followed the

doctrine of corporate ownership of Illom property, that there is no question of anybody''s share being alienated or seized in execution for the debts

either of himself or of the father and that in these circumstances the Illom property as a whole can be made liable only for the debts binding on the

Illom. Once, however, it is granted that individual members of the family have separate rights which they can claim partition of, the reasoning of the

above decision will not avail. It is only by unconsciously importing the Hindu Law theory of the son''s right by birth to a share in the family property

that Mr. Krishna Aiyar can claim that the sons'' shares ought not to be held liable for the father''s debts.

We are unable to agree that the decision in Velu v. Chamu ILR (1898) 22 Mad. 297 should be understood merely to rest upon proof of that

particular custom without reference to any underlying principle. If however Velu v. Chamu ILR (1898) 22 Mad. 297 is to be so understood the

question will still arise what locus standi the appellants will have to object to the sale of the family property except on the theory of the sons'' right

by birth. We see no warrant for introducing one portion of the Hindu Law without taking along with it the other portions which form an integral part

of the whole system.

In Parambarathil Patukkayil Chakkutti and Others Vs. Kothambra Chandukutti, to which Mr. Krishna Aiyar invited our attention, the learned

Judges were dealing with a Thiya family and not an Ezhuva family. The case in Velu v. Chamu I.L.R.(1898) 22 Mad. 297 itself draws a distinction

between the two communities but it is noteworthy that even in dealing with Thiya community the learned Judges recognised that in the absence of

evidence to the contrary as to the customary law applicable to any particular community the ordinary rule of Hindu Law will apply. If so it must a

fortiori be the case in the case of Ezhuvas.

In view, however, of the reference to custom in para. 2 of the written statement, of the appellants, we desired to know whether any serious

attempt was made in the lower Court to adduce evidence on this question. Mr. Krishna Aiyar maintained that his clients adduced no evidence on

the point because the issue as finally amended omitted all reference to this question. But the issue in the original form had been the issue in the case

for nearly fifteen months and if the parties had seriously intended to lead evidence on the question of custom we"" expect that steps would have

been taken to summon witnesses for the purpose. We accordingly gave Mr. Krishna Aiyar''s clients an opportunity to file an affidavit stating what

exactly happened in the lower Court in this connection. It is now admitted that no steps were taken to summon any witnesses in this connection.

The only explanation suggested is that they probably thought that when the trial has actually commenced they might bring the necessary witnesses.

We are not prepared to re-open the case merely on the strength of a suggestion of this kind. The appellants are minors and if they ever feel that

their case has been prejudiced by any negligence on the part of their guardian it will be for them to take appropriate steps.

On the present state of the record we are not prepared to, allow the matter to be re-opened or to give a fresh opportunity for adducing

evidence on the question of custom.

The appeals fail and are dismissed with costs of the plaintiffs-respondents.