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Kesavan Nambudiri Vs. Lakshmi Varasyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1939)1MLJ568
AppellantKesavan Nambudiri
RespondentLakshmi Varasyar and ors.
Cases ReferredMarsh v. Joseph
Excerpt:
- .....suit claim was resisted by defendants 3 to 6 on the ground that the debts were not incurred for family necessity. subsequent to the execution of the last promissory note, there was a partition in the family in and by which the members became separate and the said partition is evidenced by the deed dated 1st november, 1932. this deed is relied on by the plaintiffs as evidence of ratification of the debts due to them by the contesting defendants. the learned district munsiff accepted this contention and gave a decree in favour of the plaintiffs. in the course of his judgment he observed thus:it was conceded by the plaintiff's vakil himself that if he had to prove necessity in the suit, it must be admitted that there was not sufficient proof about it. but he takes his stand on the.....
Judgment:
ORDER

Venkataramana Rao, J.

1. These three revision petitions arise out of three suits instituted upon three promissory notes dated 23rd July, 1928, 23rd July, 1931, and 24th July, 1931, executed by one Kesavan Nambudiri, the first defendant in all the suits in favour of the plaintiffs in the respective suits. On the date of the execution of these notes, the first defendant was the karnavan and manager of the tarwad of the defendants in the suits though the promissory notes do not ex facie show that they were executed by him as such. The suit claim was resisted by defendants 3 to 6 on the ground that the debts were not incurred for family necessity. Subsequent to the execution of the last promissory note, there was a partition in the family in and by which the members became separate and the said partition is evidenced by the deed dated 1st November, 1932. This deed is relied on by the plaintiffs as evidence of ratification of the debts due to them by the contesting defendants. The learned District Munsiff accepted this contention and gave a decree in favour of the plaintiffs. In the course of his judgment he observed thus:

It was conceded by the plaintiff's vakil himself that if he had to prove necessity in the suit, it must be admitted that there was not sufficient proof about it. But he takes his stand on the ratification of the debt in the partition deed, to which all the members of the tarwad are parties. Even though a debt is not contracted for tarwad necessities, the assent of all the members of the tarwad can render it binding on the tarwad, even in case the assent was given subsequent to the loan...In the partition deed, all the members of the defendants' illom have accepted the debts as those binding on the illom. Therefore the question whether the debt was contracted for illom necessities loses much of its importance.

2. This view of the learned District Munsiff on the facts of this case has been attacked by Mr. Swaminathan on behalf of the sixth defendant who has preferred the above revision petition. It is an accepted principle of law that a manager of a joint Hindu family or a karnavan of a Malabar tarwad is the accredited agent of the family or tarwad and he represents his family or tarwad in all transactions with the outside world. He has prima facie therefore the power to enter into contracts on behalf of the family and bind the members of the family. But there is no presumption that every contract entered into by a manager is on behalf of the family. Therefore in every case where a contract is entered into by a person who fulfills the position of a manager of a family, it must be established that the contract entered into by him was on behalf of the family. If the contract itself contains a description that it was entered into by him as manager it would be enough, but if the contract does not contain such a description, evidence will have to be given that it was entered into by him as such manager. A representation believed in by a creditor that a loan was required for a family purpose would be enough. Therefore, before the transaction entered into by a manager eo nomini can be fastened upon the other members, it is essential that the contract must have been entered into by him as manager. If the loan was for a necessary purpose there can be no question that the contract will bind the other members whether they assented to the transaction or not. If the loan was not for a necessary purpose, prima facie, the contract will not be binding on them. It is only in such circumstances the question arises under what circumstances the other members of the family can be rendered liable. Whether it is a case of a joint Hindu family or a case of a Malabar tarwad, even though the members of a family or tarwad, were not actual contracting parties to a. loan entered into by a manager, still it is open to them to ratify and adopt it in cases where the contract was entered into by the manager, in his capacity as manager but not for a necessary family purpose. In my opinion, the question of ratification can only arise in such a case, and not in a case where the loan was entered into by him in a purely personal capacity. Therefore this distinction is to be borne in mind when ratification is sought to be availed of by a creditor by reason of a transaction entered into between the members of a family inter se. It has therefore to be considered what the facts in these cases are before the contesting defendants could be said to be bound by the doctrine of ratification. As explained by Lord Russell, C.J., in Marsh v. Joseph (1897) 1 Ch. 213 :

To constitute a binding adoption of acts a priori unauthorised these conditions must exist : (1) the acts must have been done for and in the name of the supposed principal, and (2) there must be full knowledge of what those acts were, or such an unqualified adoption that the inference may properly be drawn that the principal intended to take upon himself the responsibility for such acts, whatever they were.

3. The facts as disclosed from the evidence are that at the date of the partition the members of the family other than defendants 1 and 2 disputed the debts contracted severally by them among which were included the suit debts on the ground that they were not contracted for any valid family necessity and they declined to be bound by them. To secure family peace, it was suggested by the mediators who brought about the partition that more properties than what they would be legitimately entitled to pertaining to their several shares might be allotted to defendants 1 and 2 in consideration whereof they might discharge severally the debts incurred by them, and to this proposal all the members of the family seem to have given their assent, in other words, the arrangement appears to be more or less a gift or an assignment of some of the properties which the other members would have got as and for their share and the responsibility of discharging the debts incurred by defendants 1 and 2 was entirely upon them. In such circumstances, it cannot be said that the members of the family with full knowledge of the circumstances attending the loans took upon themselves the discharge of debts or adopted the said debts as family debts in order that they might be bound to the creditors. Nothing has been established in the evidence to show that the plaintiff was either misled by any act at any rate of the sixth defendant which induced him to believe that he adopted the debt in such a manner as to preclude him from denying its validity. I am not therefore inclined to agree with the learned District Munsiff that there has been a ratification of the debt sufficient in law to bind the sixth defendant by subscribing to the said deed of partition wherein the said debt is included as one of the family debts. If there was therefore no ratification of the debt by the sixth defendant, the burden of fastening the liability for the same is certainly on the plaintiff. He, has to establish that the debt was contracted under such circumstances as to make it binding on him. As already stated, the learned District Munsiff has observed that it was conceded by the plaintiff's vakil himself that if the plaintiff had to prove necessity in the suit, it must be admitted that there was not sufficient proof about it; but in the circumstances of the case I would not be justified in deciding the case against the plaintiff on this occasion. The learned District Munsiff in his judgment has also observed that the plaintiffs believed the representations made to them by defendants 1 and 2 to the effect that the money was required for defraying the expenses of the marriage of a girl of the illom, at the same time adding that no independent enquiry was made by them. But under the law which governs the members of a Malabar tarwad, the concurrence of the senior most Anandravan in a transaction of the karnavan raises a prima facie presumption of necessity - vide the observations of Varadachariar, J., in C.R.P. No. 1556 of 1935. The second defendant in this case is the senior Anandravan. If therefore he also signified his assent to the transaction, a presumption of necessity prima facie arises in favour of the plaintiff and the burden is shifted on to the other members of the family to prove that there was no valid family necessity. Mr. Swaminathan contended that there was no warrant for the observations of the learned District Munsiff that a representation was also made by the second defendant. He has taken me through the notes of evidence in the case. No doubt, there was no specific statement to the effect stated by the learned District Munsiff in the notes of evidence recorded by him, but I cannot say that the learned District Munsiff made that statement without the second defendant having stated to that effect. On a reading of the deposition, as recorded by the learned District Munsiff, one may infer that the second defendant was an assenting party to the transaction entered into between the first defendant and the plaintiff. As the relative rights of the parties having regard to the facts of the case have not been correctly appreciated by either the plaintiff or the defendants and evidence seems to have been given on an incorrect appreciation of such rights, I think it desirable to call for a revised finding on the question whether the suit debts were contracted for a valid family necessity. I accordingly call upon the learned District Muniff to submit his finding on that question. In dealing with this matter, he will keep in mind what I have already stated, namely, that there is a presumption of necessity in favour of the plaintiff and that the burden is shifted onto the sixth defendant for disproving the case of necessity. The sixth defendant will be given leave to adduce the necessary additional evidence and the plaintiffs will be at liberty to let in rebutting evidence. Time for the return of the finding is six weeks from the date of receipt of this order. Ten days for objections.

1. I accept the finding and dismiss these Civil Revision Petitions with costs.


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