(CHIVUKULA) VENKATANARASIMHAM Vs. (BOGGAVARAPU) SUBBA RAO

JUDGEMENT

(1.) The suit was on a hypothecation deed executed by defendants 1, 3 and 4 in favour of the plaintiff. Defendant 1 is the father of defendants 2 to 4. Defendant 2 was a minor at the date of the deed. The trial Court passed a decree and defendant 2 appealed, his contention being that his share was not liable. This contention was dismissed by the learned Subordinate Judge. Hence the second appeal. The deed in question was taken for Rs. 600 to discharge miscellaneous debts incurred for the marriage of defendant 4 and for the expenses of the joint family. Defendant 1 in his written statement admitted that the loan was for the above purposes but examined as D.W. 1 he threw over his written statement and his evidence has been rightly disregarded by both the Courts. The plaintiff himself gave evidence and also examined other witnesses to show the circumstances under which he lent the money and that he made reasonable inquiries. Defendant 1 tried to make out that the marriage was twelve months before the date of Ex. A, but the trial Court found that it took place only one month before the date of Ex. A, and this view has not been dissented from in the confirming judgment of the lower appellate Court. P.W. 1 stated that defendant l's brother-in-law Venkataramaniah who had been a clerk under the plaintiff for about 12 years stated that the loan was required by defendants 1, 3 and 4 for the purposes stated. It was sought to be argued that the learned Subordinate Judge decided, the question not on proof of proper inquiry as to the necessity for the laon by the plaintiff but on a legal presumption arising from the fact that all the adult male members of the family, i.e., defendants 1, 3 and 4 made this representation to the plaintiff. That I think is not a correct view of the judgment. In para. 3 the learned. Subordinate Judge says: There is also some evidence that the plaintiffs clerk who was also the mortgagor's brother-in-law represented to the plaintiffs son P.W. 1 that there was necessity for the borrowing.

(2.) After quoting the law as laid down in Hanooman Persaud Panday V/s. Mt. Babooe Munraj Kooniveree (1854-57) 6 MI A 393, he says: The present question is whether plaintiff's case will come under the test laid down by their Lordships. There is evidence of P. Ws. 2 and 3 (P. Ws. 2 and 3 here is a mistake for P Ws. 1 and 2 but that is immaterial) that plaintiffs son made some inquiry as to the necessity for the loan of the mortgagors, defendants 1, 3 and 4, and that he also satisfied by questioning his brother-in-law Venkataramaniah whether such necessity existed. (It was plaintiffs son who actually advanced the money.)

(3.) As I said above, the evidence is all on one side because the only evidence cal led by the defendants is that of defendant 1 which has been rightly rejected by both the Courts as contradicting his written statement. Again in para. 5 before he begins to discuss the presumption arising from the adult members admitting the necessity, the learned Judge states: There is some independent inquiry in that their brother-in-law corroborated their statement as to their needs and necessities.