MAYA KONE Vs. PERIASAMI KONE

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the plaintiff to recover a sum of Rs. 1,300 and interest thereon on a promissory note dated 16 January, 1924, executed in his favour by the first defendant. Defendants 2 and 3 were impleaded as his undivided brothers on the ground that the debt was contracted by the first defendant as the manager of the joint family for family purposes and for the benefit of the family of the defendants. The fourth defendant is the son of the first defendant and as such he is sought to be made liable in addition to his being a member of the joint family. The suit was filed on 3 October, 1929. To get over the bar of limitation an endorsement of payment by the first defendant dated 10th January, 1927, was relied on. Defendants 2 and 3 pleaded that there was no family necessity to incur the said debt, that they became separate from the first defendant in 1925, and that any payment or acknowledgment of liability thereafter by the first defendant would not save limitation. Both the Courts have concurrently negatived the plea based on division.

(2.) The only question therefore that remains for decision is whether the debt was incurred for family necessity or benefit which would render the defendants liable in respect thereof. The material facts necessary for the disposal of the said question are these. On the 5 October, 1919 (Ex. A-1) the first defendant and one Thirumala Nadar became indebted to the plaintiff in the sum of Rs. 580 on a promissory note bearing the said date. The said liability was incurred by the first defendant to accommodate the said Thirumala Nadar and therefore it was in no sense incurred for and on behalf of the joint family of the defendants. The first defendant was also indebted in respect of another sum of Rs. 300 on a promissory note (Ex. A-2) executed by him in favour of the plaintiff which liability was incurred to accommodate his brother-in-law. Therefore this debt also was one which was not incurred for the benefit of the family. On the 21 December, 1921 (Ex. F) Thirumala Nadar executed a mortgage in favour of the first defendant for a sum of Rs. 3,000 in and by which he mortgaged certain immovable property belonging to him. The document recites that Rs. 1,550 was paid in cash and the balance of the consideration was stipulated to be paid for by the first defendant undertaking to discharge the debt due under Ex. 1 in favour of the plaintiff and the other debts of Thirumala Nadar. On the 16 August, 1923, Thirumala Nadar executed two sale-deeds (Exs. G and H) bearing the same date in and by which he conveyed the property mortgaged under Ex. F and other property to the first defendant. Ex. H was for a sum of Rs. 2,500 and it was stipulated therein that the property conveyed thereunder was subject to a mortgage in favour of one Nageswara Ayyar for Rs. 1,400 and the balance was to be in partial discharge of Ex. F. The other sale-deed Ex. G was for Rs. 1,000 in discharge of the balance due under Ex. F. Subsequent to the execution of these two sale-deeds the first defendant executed in favour of the plaintiff Ex. A the suit note for Rs. 1,300 part thereof being Rs. 840 the amount due under Ex. A-1 and part thereof Rs. 460 being the amount due under Ex. A-3. The recital in the said promissory note is to this effect: Regarding the promissory note executed by me and Thirumala Nadar on 5th October, 1919 (Ex. A-l), the amount due from me alone under the said pronote upon my purchasing the said Thirumala Nadar's land is Rs. 840.

(3.) It will be seen from these transactions that all the loans incurred up to the date of Ex. F by the first defendant were for the benefit of Thirumala Nadar and Ex. F itself was to accommodate Thirumala Nadar. It was for a sum of Rs. 3,000 and a part thereof was advanced out of the joint family funds. The remaining consideration was the liability undertaken by the first defendant for discharging the indebtedness of Thirumala Nadar. It cannot therefore be said that the transaction Ex. F was for the benefit of the joint family. Further, on 16 August, 1923, when the sale-deeds Exs. G and H were taken, Rs. 2,100 only remained due under the mortgage and apparently Rs. 900 was paid by Thirumala Nadar. From the evidence it does not appear how and when that sum of Rs. 900 was paid and why the said sum of Rs. 900 was not utilised in the discharge of the liability undertaken under Ex. F by the first defendant. So far as the sale covered by Ex. H is con cerned, the property conveyed thereunder was admittedly subject to a prior mortgage. As pointed out by the learned Subordinate Judge, taking the most favourable view of the transactions a sum of Rs. 820 due and payable under Ex. A-1 must be deemed to represent a portion of the sale price payable under Exs. G and H and Ex. A must be deemed to be a borrowing for the said purpose. But it has not been establish ed in this case that the mortgage or the sales were transactions entered into for the benefit of the family. The manager of a joint Hindu family cannot render the family estate liable by borrowing money for the purchase of other lands for the family in the absence of a justifying necessity or benefit.