KULITALAI BANK LTD Vs. S V NAGAMANICKAM

JUDGEMENT

(1.) The appellant is the plaintiff, the Kulitatai Bank Ltd., Tiruchirapalli. They filed the suit against defendant 1 and his four sous, three of whom were minors, (or recovery of Rs. 20,826 due on a security bond, Ex. A. 3 dated 30-11-1945, for advances made by the bank. It was executed by defendant 1 (or himself and as guardian of his four sons, all then minors, who were in existence. The Subordinate Judge passed a preliminary mortgage decree against defendant 1's share in the hypotheca and dismissed the suit against defendants 2 to 5, holding that the mortgage was not binding on their interests. The evidence shows, nor is it disputed, that defendant 1, a Chettiar of the Vysia community, got the hypotheca. under a partition deed, Ex. A. 7 (b) in 1938 with his-younger brother then aged about 16. This document refers to a shop business conducted by defendant 1 on his own account, the assets and liabilities of which all belonged to him. There can be no doubt the hypotheca is ancestral joint family property. Defendant 1 filed a written statement supporting the case for his minor sons who were represented by their mother as guardian, denying that he carried on a shop business as an ancestral joint family business and he also ran a rice mill as a family business. He did not go into the witness-box himself.

(2.) On behalf of the bank the agent was examined as P. W. 1, the cashier, as P. W. 2 and one Krishnamurthi Chettiar as P. W. 3. On behalf of the defendants only one witness was examined, one Radhakrishna Chettiar, who claims to have known the family of the defendants for the past thirty five years. According to him, defendant 1's father did a money lending business and was Secretary of a Bank for a time. Defendant 1 has run a shop business for the past 25 years and a rice mill for the past 6 or 7 years. A certificate by the Commissioner of the Karur Municipality relating to profession tax, Ex. A. 12, shows that defendant 1's half yearly income for the years 1943 to 1949 ranged from Rs. 1900 to Rs. 3100 a half year from his shop business. The eldest son, defendant 2, was at the time of the suit a medical student. P. W. 3 produced some accounts showing, transactions between defendant 1 and a relation of his, Ex. A. 11 series, showing transactions relied on to support the fact that defendant 1 was a trader and doing a 'Maligai' business. There appears to be nothing suspicious about Exs. A, 11 (a) and A. 11 (b), two ledger pages exhibited showing 'inter alia' three separate purchases of 50 measures of gingelly. But the ledger page, Ex, A. 11 (c) at p. 154 which appears to have been written up at one stretch and refers to the jaggery mundy of defendant 1 is a most suspicious document 011 which no reliance can be placed. P. W. 3 admitted that defendant 1 had got an eviction order against him. We think the learned Subordinate Judge rightly declined to find these entries conclusive as regards anything.

(3.) Had this family not been one whose hereditary vocation or 'kulchara' is trade or commerce, the learned Subordinate Judge's finding that the bank has not discharged its onus of proving legal necessity for this mortgage would have been correct and in accordance with settled law unto date. As ex-pounded in Mayne's Hindu Law, Edn. 11, at p. 382 to 385 a managing member, whether he is a father or, a senior coparcencer, cannot start a new trade or business so as to impose upon minor members the risk of such business. Whether however this limitation on the powers of a manager applies to the manager of a trading family or one whose kulachara or hereditary vocation is trade was held to be not free from doubt in view of--'Ramnath v. Chiranji Lal', AIR 1935 All 221 (FB) (A), and other earlier decisions cited. We would with respect agree with the view expressed by the learned commentator that the better view seems to He against the imposition of any such limitation; otherwise there would be an undue curtailment of commercial adventure and enterprise, which is the very life, so to speak, of a hereditary trading family. This distinction has been made in this domain of case law, distinguishing between a family whose hereditary vocation or kulachara is trade or commerce and a non-trading family. It is argued that there is nothing to show in the first place that the shop business carried on by defendant 1 was ancestral. It does not appear to he necessary that a family whose hereditary vocation is business, trade or commerce, should continue even for more than one generation one particular type of business in order to take the family out of this category. In this connection we must comment on the failure of defendant 1 to go into the witness-box. He had the best evidence in his possession as to what his father and grand-father did and has withheld his knowledge from the Court. We can take his absence from the witness-box into consideration in drawing an adverse inference against his family that they and their ancestors did business of some kind as their hereditary vocation in the course of which they may have acquired some land.