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Judgment
Subramania Iyer, J.—This appeal is filed by defts. 10, 17, 65, 66, 69 & 70 against the judgment & decree of the learned Dist. J. of QUILON in O. S. 98 of 1100 on his file. The suit was by certain junior members of a Malayala Brahmin lllom for removal of deft. 1 a Karnavana from management, for declaration of deft. 2 the senior ananthiravan as unfit for managership, & for setting aside as many as 43 alienations of family properties made by defts. l & 2 in conjunction with certain other members of the family.
The learned Dist. J. first disposed of the suit decreeing the same as sued for except in reaped of some of the alienations. At the instance of some of the defts. aliened, the decree was set aside in part & the suit was restored to file & was again, disposed of by the learned Judge by the decree dated 2lst Kumbhom 1121, against which this appeal is filed.
It was represented before as by both sides that the appeal, in so far as it related to deft applt. 10 may be dismissed as he has adjusted the matter with the pltfs. resps. out of Ct. &. certain registered documents have been produced to evidence the adjustment. The appeal is accordingly dismissed so far as it relates to deft, applts. 10
The remaining applts. are interested only in three transactions & they are evidence by Exs. III, v. & XXIX. These are possessory mtgs for Rs. 600, Rs. 330 & Rs 100 respectively. The learned Judge considered these transaction in Paras. 11,12, & 24 of his judgment & 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.
The finding of the learned Judge on the question of consideration was not canvassed before us. Mr. Ramakrishna Pillai learned Counsel for the pltfs. resps. frankly conceded that the finding as to the consideration has to be upheld. Though the Malayala Brahmana Act III [3] of 1106 (Travancore) is applicable to the parties the 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 & ratified by the karnavan. Junior members who are not parties to the contracting of the debts are entitled to impeach such debts as not binding upon the family. The onus would be 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 actually existed or that he was satisfied on a bona fide enquiry that such a necessity existed & 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 & 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 & no out & dried rules can be laid down by applying which it could be asserted whether the burden has shifted or not. The creditor need concern him self only with an existing necessity & 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, & 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 P. C. as early as in Hunoomanperasaud Panday''s case, Hunooman-Persaud Pandey v. Mt. Babooee Mundraj Koonweree 6 M. I. A. 393 : 18 W. R. 81 P. C. & followed over after.
These principles are well-settled. The learned Counsel for the resps. pltfs. after referring to the authorities, particularly to a judgment of Sadasiva Iyer, C.J., in Krishnan Aiyappan v. Padmanabhan Rama 21 T. L. R. 239 which was followed by Sahasranama Iyer, J. in Sankunny Menon v. Iyyakku 24 KER L. R. 86, fairly & frankly conceded, that the view of the learned Dist. J. that on the facts of this case the creditors should have, besides proving consideration, also proved the necessity for the loan & application of the money borrowed, cannot be supported. His only contention was that though the debts in question were real & in law there will be a presumption of family necessity in respect thereof, the junior members are not concluded thereby & that they are free to rebut the presumption of necessity. He also contended that the pltfs. have rebutted the presumption. To support this contention, he relied upon the evidence of P. W. 1 pltf. 1 who says that the family had an income of 3,000 paras of paddy & Rs. 1000, per year. He also relied upon the evidence of deft. 6 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 & that this income must have been sufficient to meet the expenses of the family & leave a surplus. To appreciate this contention one had to look into the history of the family. The family consisted of a father, mother & 4 sons. The father being old, executed, in conjunction with his 4 sons, a family karar, Ex. A., on 14-12-1093, whereby of the three estates of the family, the Adoor estate was put in the management of deft. 1 who is the eldest son & his immediate younger brother who is now no more, the Quiton estate was put in the management of deft. 2 who is the third son & his immediate younger brother who is now no more & whose widow is pltf. 3. 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 & for other expenses in connection with the family by way of entertaining relations & guests. Pursuant to this karar, the two branches lived separately, & managed their respective estates as provided hereunder. In the course of this arrangement, however, some debts had to be incurred which occasioned another karar on 21-5-1099, Ex. P, by which time the younger brother of deft, 1 was no more. Exhibit P is by the father as also by the three surviving sons. This karar confirms the original karar, Ex. A & the management there under & 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 deft. 1 and Anr. amount of Rs. 2923.8.0 which was a debt contracted by the branch of deft. 2. It is provided that these debts should be discharged by each of the two branches by execution of possessory mtges. Hypothecations are prohibited as they would lead to the accumulation of interest. Out right sale of the properties is also prohibited. No details of the above debts of the respective branches are given in Ex. P which mentions only the total amount of the debts as aforesaid. The three documents in question in this appeal were executed by deft. 2 in conjunction with his deceased younger brother who was a member of that branch. They are within 3, 4 & 9 months from the date of Ex. P & the total amount taken under the three documents is well within the limit of the debt of deft. 2 mentioned in Ex. P the total being only Rs. 1,730. The documents recite that the advances were taken for the purpose of discharging the debts mentioned in Ex. P.
The father died within a few months of the date of Ex-P. The surviving sons appear to have borrowed money for purposes of treatment, the funeral & other obsequies ceremonies & executed a karar in the year 1100 making provision for these debts & for the continuance of the management pursuant to the provisions of Exs. A & P. These facts appear from the plaint itself. In the year 1103, deft. 1 took a release from deft. 2 of his rights as manager under the earlier karars & provision was made for his maintenance. The pltf. was a minor & attained majority, according to him, only in the year 1096. He is the son of deft, 1 & belongs 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 & RS. 1000 per year; in a vague manner & 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 & other family expenses as admitted in para. 6 of the plaint which raises a complaint against defts. 1 & 2 to the effect that though the income of the family would have been sufficient for all the expenses & even to leave a surplus, defts. 1 & 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 Ex. P as to the existence of debts & that those debts, whatever the amounts were could not have been discharged from out of the income. Apart from this, the very fact that Ex. P. provides for execution of possessory mtges. for discharge of the debts, whose existence & binding character was admitted therein, would indicate that the income was not such as, at any rate, to leave a surplus towards discharge of debts. Ex. III is a subsequent possessory mtge. over the properties which were already in the possession of strangers on possessory mtges. It refers to as many as 4 mtges. executed by the father of defents. 1 and 2 in the years 1083,1087,1091 & 1094. The mtges. of Ex. III was directed to redeem these earlier mtges. for which a sufficient part of the consideration was reserved. The fresh advance under Ex. III is only Rs. 600. Exs. 33, 39 & 40 would show that the father had incurred other debts as well. Even the learned Counsel for the resps 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 & a small number of members to be maintained, if the father should have incurred debts & those debts should have been subsisting even at the time of Ex. A, it is clear that the income of the family could not be what is stated by pltf. 1 or, if that was the income, the expenditure should have been in excess of that income. The pltfs raised complaints only against defts 1 & 2. No complaint is raised against the father not against the deceased younger brothers of defts. 1 & 2. The father & these younger brothers were parties to Exs. A & P & deft. 2''s younger brother was party even to the transactions which constitute the subject matter of this appeal. It is thus clear that the pltfs. 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 & 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 & several other ananthiravans, all alike admit the existence & binding character of the debt, to make any further enquiry as to the existence of the debt. Law does not call upon him 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 Exs. III, v. & XXIX which are impeached, are not open to impeachment & that the transactions are valid & binding upon the family & upon the properties.
The appeal in so far as these transactions viz., Exs. III, v. & XXIX & applts. defts. 17, 65, 66, 69 & 70 are concerned, is therefore allowed with proportionate costs. The appeal in so far as it relates to EX. XXV & the applt. deft. 10 is concerned will, as already mentioned, stand dismissed.