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V.P. Kesava Menon Vs. C. Achuthan Nair - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad482; (1942)2MLJ41
AppellantV.P. Kesava Menon
RespondentC. Achuthan Nair
Cases ReferredNalanunni v. Dakshayani Amma Since
Excerpt:
- .....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.....
Judgment:

Wadsworth, J.

1. 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.

2. 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 v. Veerasami Padayachi : AIR1941Mad59 and Periakaruppan Chettiar v. Appaji Naidu : (1940)2MLJ756 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.

3. It has been suggested that in a recent decision Nalanunni v. Dakshayani Amma Since reported in : (1942)1MLJ418 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 under Section 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.

4. 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.

5. 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.


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