KESAVAN NAMBOORI Vs. NARAYANI AMMA

JUDGEMENT

(1.) 1st plaintiff is the appellant. The suit was for a declaration that the two decrees in O. S. 544 of 1105 and O. S. 392 of 1109 on the file of the Mavelikara Munsiff's Court are not binding on the plaintiffs and their illom. The said decrees were obtained by defendants 1 and 2 respectively. The munsiff dismissed the suit. It is represented before us by learned counsel for both sides that in so far as the appeal relates to the second of the abovesaid decrees viz. , O. S. 392 of 1109 obtained by the 2nd defendant 2nd respondent, the matter has been adjusted out of court and the appeal to that extent is therefore not pressed. That part of the appeal relating to the aforesaid decree and to the 2nd defendant-2nd respondent will therefore be dismissed with costs.

(2.) AS regards the other decree in O. S. 544 of 1105, a certified copy of which is marked in the case as Ex; A, Mr. Potti learned counsel for the appellant urges before us the following points. He contended that the form in which the decree is couched is not such as to cast any liability upon the illom. The decree purports to be passed only personally against two named members of the family who were defendants there and who are defendants 3 and 4 here. Those defendants happened to be the karnavan and the senior ananthiravan of the illom but that circumstance, it is contended, would not render the decree any the less one personally against the defendants. The decree is dated 30-6-110 5. According to the law that existed then, which was customary, there was no need to describe the karnavan of an illom as such in order that the decree may bind the family. There can be a decree against the family passed against the karnavan without describing him as such. In the Travancore Malayala Brahmana Act, of 1106 there is a provision for impleading the karnavan as such in a suit against the illom. In the absence of such a statutory requirement it is possible to have a decree passed against an illom with the karnavan on record but without describing him as such. This position has been accepted all through and is well established.

(3.) THE next point urged by learned counsel for the appellant is that no decree could be passed against a family except in respect of a debt which is supported by necessity. This is a proposition which could not be and has not been questioned. THE question then is as to whether the necessity has been made out. THE learned judge in the court below thought it was. He based his conclusion upon Ex. III, the deposition given by a witness who is now no more and was not available for examination at the trial in the court below. That deposition was given in connection with the proceedings started at the instance of the 1st plaintiff when he objected to the execution at the above decree against the family properties which were attached. He swore therein that he was acquainted with this transaction and that the money under the promissory note was borrowed for the ceremony consequent upon the death of the previous karnavan who was the father of defendants 3 and 4. THEre was cross-examination of the witness but we do not find a question put as regards the factum of the borrowing or the occasion or the necessity for it. In the absence of any such cross-examination, it has to be taken that the version given by him in his examination-in-chief is correct. THEre is no evidence adduced in this case regarding necessity except the aforesaid deposition, Ex. III. In the plaint which was drafted after the above deposition, as the order was adverse to the plaintiff, there is no specific averment made that there was no borrowing made in connection with the ceremonies after the death of the father of defendants 3 and 4 or that such borrowing was unnecessary or was in excess of the actual necessity. THE only mention made in paragraph 5 of the plaint is " LQ_101aoeja~o P29jo OJO " Viewed in the light of the evidence given in Ex. III this averment in the plaint must be characterised as not specific. THEre is no attempt made on behalf of the plaintiff to show that the financial position of the family was such that the ceremonies after the death of the father of defendants 3 and 4 could have been conducted without borrowing or that in fact there was no borrowing or that there was borrowing from some other quarter. In the absence of any such case or evidence, we consider that the court below did right in accepting the evidence adduced on behalf of the 1st defendant and in holding that the; debt for which the promissory note sued on in O. S. 544 of 1105 was executed was one binding on the family of the plaintiffs.