GURUSWAMI NADAR Vs. TSGOPALASAMI 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 Ratnaswamy Nadar, brother of the 1st defendant father of defendants 2 to 4, and uncle of defendants 5 to 10. Several promissory-notes were executed in renewal of Exhibits E and J by Rathaswamy Nadar, the last of which were Exhibits A and A1. The only question is whether there 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 Rathnaswamy 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 .

(2.) The family have 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 appellant that the plaintiffs have not shown that the debt was contracted by the late Rathnaswamy 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. 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 as 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 of the direct evidence for the plaintiffs. The defendant; were under a duty to produce their books when summoned or to account for their failure to do so; and, as they have done neither, a presumption arises under S. 114 (g) of the Indian Evidence Act that the books if produced would have been unfavourable to their case and would have shown that the money was borrowed for the purposes of the business, which is in accordance with general probabilities of the case. The Privy Council have recently ruled in Murugesani Pillai v. Manikavasaka Desjka Guana Sambanda Paudara Sannadhi (1917) I.L.R. 10 Mad. 402 : 32 M.L.J. 369 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 clear 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.

(3.) 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 managing member:--In Nogendra Chandra Dey v. Amarachandra Kundu (1908) 7 C.W.N. 725 ana Gaupat Rai v. Muuni Lal (1911) I.L.R. 34 All 135 this presumption has been held to apply even when the manager is carrying on a joint family business but as pointed out by Chandravirkar, J. in Raghunathji Tarachand v. The Bank of Bombay (1909) I.L.R. 34 Bom. 72 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 not be the other way. The appeals should be dismissed with costs. Ayling, J.