SOMASUNDARATHU ODAYAR Vs. KALYANASUNDARATHU ODAYAR (DIED) AND ORS.

JUDGEMENT

(1.) THIS Civil Miscellaneous Appeal is preferred by the first respondent in the Court below in a petition for scaling down a debt under Section 19 -A of Madras Act TV of 1938. The petitioner in the lower Court has filed a memorandum of cross -objections, which has also to be dealt with.

(2.) THE facts are these. The petitioner in the lower Court and the sons of his brother, Sivasankara, Vayyapuri and Sivagnana constituted a Hindu joint family. On behalf of this family, and during the course of his management, Sivasankara borrowed Rs. 10,000 in March, 1928, executing a promissory note therefor. Several payments were made towards this note, and, for the balance due under it and comprising a fresh loan of Rs. 800 or so taken, Sivasankara executed another note in February, 1931, for Rs. 4,800 and odd. In June, 1933, this was renewed by a promissory note for Rs. 10,000 and odd executed by Sivasankara and the petitioner -in the lower Court. This not merely included the principal and interest under the promissory note of 1931, but also fresh loans taken prior to October, 1932. Sometime thereafter Rs. 3,000 was borrowed, and certain payments were made towards that debt. For the balance due on those dealings, and the promissory note of J933 earlier referred to, a fresh promissory note for Rs. 16,092 -2 -0 was executed by Sivasankara and the petitioner in the lower Court on 7th May, 1936. It is alleged that Rs. 5,000 had been paid under this document.

(3.) IN December, 1949, there was a partition arrangement in the family of the petitioner in the Court below, and the debt was allotted to his share. It appears later that Vayyapuri, among the members of this joint family, and the son and widow of Sivasankara also undertook to pay some amounts, and did do so. The petition in the Court below was instituted upon the basis that the entire group of dealings related to the joint family, the debt being traceable through a series of renewals without loss of its identity at any stage. It was under these circumstances that the petitioner in the Court below sought relief under the provisions of Madras Act IV of 1938.