V.P. Kesava Menon vs C. Achuthan Nair

Wadsworth, J.—This civil revision petition arises out of a decree on a promissory note executed by the 1st defendant as karnavan of a

Malabar tarwad. The plaintiff sued the 1st defendant as the karnavan of the tarwad and all the defendants as members of the tarwad liable as such

for the family debt. The debt has a long history and it goes back to a series of transactions entered into by a previous karnavan on behalf of the

tarwad. The 1st defendant has executed only the last two promissory notes, he not being the karnavan at the time of the earlier transactions. The

lower Court has scaled down the debt with reference to the original principal of Rs. 400 advanced in 1923 as against the junior members of the

tarwad to the extent of their interest in the tarwad properties. He has worked out the liability of the 1st defendant on a different basis, treating him

as an individual who became liable for the debt for the first time when he signed the antecedent note Ex. B. of 1933. The debt as against the 1st

defendant has been scaled down under S.. 9 by reduction of the interest to 5 per cent.

No doubt this is a possible way of working out the consequences of the Act. But it is not the way which has commended itself to this High

Court. In two cases Doraikannu Odayar Vs. Veerasami Padayachi alias Veerasami Chatrakondar, and A. Raghupathi Aiyar Vs. Krishnamachariar

and Another, a Bench, of which I was a member, has indicated that when there is a family debt renewed in various documents by different

coparceners, any member of the family liable for that debt may get the debt scaled down on the basis of the original liability by which he was

bound as a member of the family throughout all the various renewals actually executed by different coparceners. In the many cases following these

decisions, it has never been recognised that the liability of the coparcener who actually executes the note for a family debt is not to be traced back

to earlier documents executed by other coparceners on behalf of the family.

It has been suggested that in a recent decision Ekkanathtavazhi Karnavan and manager Dakshayani Kunchi Amma''s children Nalanunni alias

Ponnunni and Others Vs. Manikkath Kunchi Ammu Amma''s children Dakshayani Amma and Another, where the Bench had to deal with the

complications arising from the application of Section 14 of the Act to a Malabar tarwad, a different principle has been adopted. It seems to me that

this is not the case. In that judgment -the Bench came to the conclusion that for the purpose of Section 14 as applied to a Malabar tarwad, the

Court had to divide up the family liability into two lots, one the liability of the agriculturist members and the other the liability of the non-agriculturist

members and scale down the proportionate share of the debt due from the agriculturist members and make the non-agriculturist members jointly

liable for their proportionate share of the unreduced family debt. And in dealing with this subject, the Bench points out that Section 14 is not

concerned with any debt other than a family debt and that the personal liability of the executant members is not to be apportioned in the manner

laid down u/s 14. In dealing with this subject, the judgment observes:

The operation of Section 14 will not affect the personal liability of the defendants who have actually executed this note. They will be entitled to

scale down the decree so far as their personal liability is concerned, even as they would be entitled to scale down any other debt, not by rendering

themselves liable for only a part of the debt but by being liable for the whole of the debt subject to such reduction as they may be entitled to if they

are agriculturists.

I can find nothing in this judgment to warrant the inference that when the personal liability of the executant members who are agriculturists is

being scaled down as prescribed in this passage, those executant members would not be entitled to trace their liability back to earlier documents

under which they were liable not as executants but as members of the debtor family.

In the result, therefore, I allow the Civil Revision Petition with costs and amend the decree of the lower Court so as to make the 1st defendant

personally liable only for the amounts for which the decree has been passed against the tarwad with proportionate costs.