BALAKRISHNAN BEING MINORS BY GUARDIAN KALU Vs. CHITTOR BANK PROPRIETOR RSUBRAMANIA AIYAR, BY MUKTIYAR CSANANTAKRISHNA AIYAR

JUDGEMENT

(1.) These appeals arise out of O.S. Nos. 17 and 39 of 1931 on the file of the Sub-Court of Palghat. Some of the questions raised in these suits have already been dealt with by us in the judgment delivered by us in Appeals Nos. 253 and 350 of 1933. The present appeals have been preferred by the defendants 7 to 9 in these suits. They are the sons of the fifth defendant who joined as a surety in the promissory notes which gave rise to these suits. The fifth defendant has been held liable for the debts; the appellants contend that as these debts were not borrowed for any necessity of their family the family property should not be held liable for the discharge of the debts.

(2.) The lower Court applied the rule of the Hindu Law and held that as the debts are not illegal or immoral the sons shares in the family property are liable to be proceeded against for recovery of the father's debt, independently of any question of family necessity. We may mention that in the first instance these defendants were not impleaded as parties to the suits. They got themselves impleaded on their own application and in the written statement filed by them they alleged in paragraph 2 that under the custom of the Samudayam of these defendants the suit debt cannot be made binding on the family of these defendants. On the 31 August, 1931, an issue (Issue No. 6 in the case) was framed which raised the question whether the debt is binding on the family of the fifth defendant. The trial however did not commence till early in 1933 and about a fortnight before the commencement of the trial the issues were recast on some objection raised by the plaintiff as to where the onus of proof should be cast. For reasons which do not appear on the record the reference to the family of the fifth defendant was omitted in the amended issue. The result was that no evidence was let in one way or the other on the question of custom mooted in paragraph 2 of the written statement of the appellants.

(3.) It has now been argued before us that the Ezhuva community of Palghat to which the appellants belong should nor. be held to be wholly governed by the Hindu Law though they follow the Makkatayam and not the Marumakkatayam system. Reliance has been placed in this connection upon the decision in Raman Menon V/s. Chathunni (1893) I.L.R. 17 Mad. 184 as recognising that the mere adoption of the Makkatayam system of inheritance by a particular family does not involve the conclusion that the family has adopted all the rules of the Hindu Law. Mr. Krishna Aiyar admitted that it has been held by this Court that unlike the Nambudhiris of Malabar the Ezhuva has adopted the rule of partibility. See Velu V/s. Chamu (1898) I.L.R. 22 Mad. 297. But he nevertheless maintains that as held by this Court in Kunhi Kutti Ammah V/s. Mallapratu (1913) I.L.R. 38 Mad. 527 in respect of Nambudhiris, the principle of the sons obligation to pay the father's debts ought not to be applied to the Ezhuvas. We are unable to see any justification for this contention.