1. The plaintiff, who is the petitioner here, sued on a note executed by the second defendant in favour of the plaintiff's undivided brother, the first defendant, on the 14th April, 1933, which was assigned to the plaintiff on the 2nd August, 1937. The trial Court found that the second defendant was an agriculturist and scaled down the debt on the basis of the suit note under Section 9 of Act IV of 1938. It was in evidence that the suit note of 1933 actually discharged an earlier note of about the year 1931 executed in favour of the plaintiff himself at a time when the family was undivided, the partition being in 1932. On these facts, the learned District Judge in appeal found that the creditor had not fulfilled his duty of putting before the Court the materials necessary for scaling down the debt because of the non-production of the prior document of 1931 and in the absence of proof of the documents necessary in order to ascertain the original principal, no decree could be given against the second defendant. The appeal was therefore allowed and the suit dismissed with costs. An attempt has been made to support this judgment by reference to a short note of the case of Suryanarayana v. Viswanadham (C.R.P. No. 331 of 1939) found at page 27 of the Notes of Recent Cases in (1940) II M.L.J. The short note states:
Where a creditor becomes entitled to a promissory note belonging to a joint Hindu family at a partition with his other coparceners and fresh promissory notes are executed in his own favour by the debtor, he cannot content himself with producing the promissory notes executed in his favour alone and is bound to produce, if available, the promissory notes anterior to the date of partition as also the account books of the joint family, to enable the debtor to establish a claim to relief under Madras Agriculturists' Relief Act.
2. As I was a party to the decision in question which, if correctly reported, would be very difficult to reconcile with other decisions of the same Bench, I have sent for the original judgment in the case and find that the brief report bears little or no relation to the actual judgment. What we decided in the judgment was that the lower Court ought not to have refused permission to summon from the plaintiff's custody earlier promissory notes or accounts which tend to prove that the suit can be traced back to the earlier notes in favour of the same creditor or one of whom this creditor is the legal representative. We expressly stated that nothing was said about the effect of the partition in the creditor's family but we confined ourselves to holding that the lower Court was wrong in shutting out evidence regarding documents executed before this partition.
3. It will be clear that the actual judgment in this case gives no support whatever to the position taken up by the learned District Judge. No doubt, in a case in which it can be shown that the creditor has wilfully failed to produce earlier documents which ought to be looked into for the purpose of scaling down the debt, the Court would be entitled to draw an inference adverse to the creditor from the non-production of those documents. But, in the present case, we have the suit note executed in favour of the first defendant in discharge of an earlier note executed in favour of the plaintiff. The fact that the suit note was subsequently assigned to the plaintiff would not make the note a renewal of an earlier debt in favour of the same creditor. And if the first note was executed in favour of the plaintiff as representing the joint family and the second note was executed in favour of the first defendant as a member of that family to whom the debt had been assigned on partition, it could not be said *in view of the decision in Ramasubbier v. Rama Aiyar : AIR1941Mad356 and other similar cases that the creditors were the same in the two transactions. No doubt it might be possible for the second defendant to plead and prove that the note of f931 was assigned by the plaintiff to the first defendant before it was discharged by the note of 1933, in which case there would clearly be a renewal in favour of the same creditor; but no such case was pleaded and no attempt seems to have been made by the second defendant to require the plaintiff to produce the earlier note and the earlier note was, so far as our information goes, irrelevant for the purpose of scaling down the debt. That being so, it seems to me that the learned District Judge was grievously in error in dismissing the suit solely for the reason that the plaintiff had not produced the materials necessary to scale down the debt. I am also of opinion that the error of the learned District Judge is one which justifies interference in revision.
4. In the result, therefore, 1 allow the revision petition with costs throughout and restore the decree of the trial Court.