GURUSAMI NADAN Vs. TSGOPALASWMI ODAYAR

JUDGEMENT

(1.) This is a suit by the members of a temple committee to recover temple funds which were originally lent on two promissory notes, Exhibits E and J, dated 10th January 1893, executed by the late Katnaswaniy Natfar, brother of the 1st defendant, father of defendants Nos. 2 to 4 and uncle of defendants Nos. 5 to 10. Several promissory notes were executed in renewal of Exhibit E and J by Satanswamy Nadar, the last of which were Exhibits A and A-1. The only question is whether their is sufficient evidence to support the Subordinate Judge s finding that these debts are binding on the joint family of the defendants of which the deceased Ratnaswamy Nadar was the managing member. In 1893, when the loan was contracted, his brothers were minors and there is evidence that he was carrying on the business of an Abkari contractor and that the business was a joint family business. The family had been engaged in the business for a great, many years, and indeed for a long time were the best known Abkari contractors in Southern India. It is contended for the appellants that the plaintiffs have not shown that the debt was contracted by the late Ratnaswamy Nadar for purposes: binding on the family. The members of the temple committee who advanced the loan are dead, the clerk whom they called, P.W. No. 8, was unable to speak from personal knowledge, and the witnesses connected with the defendants whom the plaintiffs put into the box were not anxious to help them, so that there is a dearth of direct evidence. The books of the defendants firm, if produced, would show whether the money advanced was utilised in the business and the debt was treated in a family debt. The plaintiffs summoned the defendants to produce their books, but the defendants failed to produce them or to explain their failure, and also abstained from going into: the Box relying on the weakness if the direct evidence for the plaintiff. The defendants were under a duty to produce their books when summoned in to account for their failure to do so and, as they been done neither, a presumption arises under Section 114(g) of the Indian Evidence Act that the books, if produced, would have been unfavourable to their case find would have shown that the money was borrowed for the purposes of the business, which is in accordance with the general probabilities of the case. The Privy Council have recently ruled in Muntgesam Pillai v. Gnana Sarttibanda Pandam Sannadhi 39 Ind. Cas. 659 : 40 M. 402 : 21 M.L.T. 283 : 32 M.L.J. 369 : 15 A.L.J. 281 : 1 P.L.W. 457 : 5 L.W. 759 : 21 C.W.N. 761 : 19 Bom. L.R. 456 : 25 C.L.J. 589 : (1917) M.W.N. 487 : 44 I.A. 98(P.C.), that defendants are not entitled to lie by trusting to the abstract doctrine of onus of proof and refuse to furnish the Court with the best material for its decision, and that if they do so, the Court is free to conclude that the evidence, if produced, would not have supported the defendants case. There was no doubt other evidence for the plaintiffs in that case, but the presumption against the defendants arises whether the plaintiffs have any evidence or not and, in my opinion; it is dear enough to shift the burden in this case, assuming it to be on the plaintiffs, and to throw on the defendants the onus of proving that the debts in question were not incurred for joint, family purposes.

(2.) I have assumed that the onus of showing that the debt is binding on the joint family is on the plaintiffs in the first, instance, as is generally the case with regard to monies borrowed by the manging members. In Nagendra Chandra Dey v. Amar Chandra Kundu 7 C.W.N. 725 and Ganpat Rai v. Munni Lal 13 Ind. Cas. 34 : 34 A. 135 : 9 A.L.J. 54, this presumption has been held to apply even where the manager is carrying on a joint family business, but as pointed out by Chandravarkar, J., in Raghunathji Tarachand v. Bank of Bombay 2 Ind. Cas. 173 : 34 B. 72 : 11 Bom. L.R. 255, which was not cited in the case last mentioned, the case of a joint trading family is in many ways exceptional and it appears open to question whether in such a family the presumption should pot be the other way. The appeals should be dismissed. Ayling, J.

(3.) I agree.