Madras High Court
Vasudeva Naicker (Died) And Ors. vs T.A. Madhavan And Ors. on 24 October, 1997
Equivalent citations: (1998)1MLJ34
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. Defendants 1, 3, 5, 7 and 9 in O.S. No. 13 of 1979 on the file of Subordinate Judge, Kancheepuram are the appellants in the above appeal. First respondent herein-plaintiff has filed the said suit for partition and separate possession of 9.32 share to him and for accounts of the income from the date of plaint till the date of delivery of possession.
2. The case of the plaintiff as seen from the plaint is briefly stated hereunder:
One deceased Rajagopal Naicker and the plaintiff are brothers and constituted a joint family. They are the sons of Hariputhira Gounder, who was a permanent resident of Thandarai village. He died in the year 1964 leaving behind his widow Kalyani Ammal, three sons and five daughters. Plaintiff's mother Kalyani Ammal died in the year 1965, leaving behind her eldest son Rajagopal Naicker, who died in 1973, his widow Karpagammal, his son Varadarajan and his daughter Logammal namely defendants 2 to 4 as his only legal heirs. The plaintiff and the first defendant are the only surviving sons and the deceased Hariputhira Gounder left behind 5 daughters of whom, one Kanniammal died leaving behind her only daughter as her legal heir, who is the 9th defendant. Defendants 5 to 8 are the other surviving daughters. The properties described in the schedule are the joint family proper-ties of the plaintiff and defendants. It is contended that originally the father and 3 sons constituted the joint Hindu family which owned and possessed the suit properties. There was also some ancestral nucleus. From out of these income and exertions, some of the properties were purchased even in the father's life time. The plaintiff, who was employed in Madras, was also sending his earnings to his father and also to the deceased Rajagopal. From these earnings also, some properties were purchased in the name of the father out of respect. The family house was constructed with joint earnings and exertions. All the suit properties were owned, possessed and treated as joint family properties by the father and 3 sons. In the suit property the plaintiff has got 1/4th share and the remaining 3/4th share belongs to Hariputhira Gounder, deceased Rajagopal and the first defendant. On the death of his father, his 1/4th share is devolved upon his children each getting 1/32 share. Thus the plaintiff is entitled to 1/4th share plus 1/32 share, namely, 9/32 share. The defendants 2 to 4 are together entitled to the same 9/32 share. Defendants 5 to 9 each are entitled to 1/32 share. The first defendant has been adopting a hostile attitude and refused to give the income to the plaintiff and other sharers. Thereupon, the plaintiff issued a notice to the first defendant on 23.10.78 demanding partition and sepa-rate possession of the suit property. Though the first defendant received the notice, he gave a reply with false allegations. Hence the plaintiff is obliged to file the suit for partition and separate possession of his 9/32 share and also for an account of income from the date of plaint till delivery of possession and for costs.
3. First defendant has filed a written statement, which was adopted by defendants 3, 5, 6, 7 and 9. In the written statement he has admitted the relationship. The plaintiff's claim for 9/32 share is admitted with regard to the items of joint family. After the death of Hariputhira Gounder, Rajagopal Naicker was the joint family manager.. A few years before his death, he became weak and sickly. Hence, the first defendant became the joint family manager. The income from the suit properties used to be very meagre, but the plaintiff used to take his share annually without interruption. Defendants 2 and 3 also used to participate only in the income. The family has to incur debts in cultivation, deepening of the wells, repair and rethatching of the residential house, periodically, repair of the electric motor, pumpset and replacement of parts and other family necessity and expenses. The debts are described in the schedule to the written statement, date of borrowing, the persons from whom they were borrowed, the nature of borrowing and the purpose of borrowing. These debts are joint family debts and they are binding on the plaintiff to the extent of his share in the profits. The defendants have no objection to the plaintiff taking his share in the suit properties as are conceded and he shall be liable to the same extent in the debts incurred by Rajagopal Naicker and first defendant for and on behalf of the family. The notice of the palintiff was suitably replied. No rejoinder denying the averments made in the said reply. Hence the first defendant prayed for a decree in favour of the plaintiff for his 9/32 share and also direction to discharge 9/32 share of his li-ability in the debts enumerated in the schedule to the written statement.
4. Second defendant filed a separate written statement and the same was adopted by defendants 4 and 8 wherein they have admitted the averments made in the plaint. They also stated that the share mentioned therein is correct. He has no objection for partition and separate possession. He has also paid necessary court fees for partition and separate possession of his share as detailed in the memo of calculation. Similarly D-4 and D-8 have also paid separate court-fees for partition and separate possession of their shares.
5. Plaintiff himself was examined as P.W. I and he has marked Exs. A-1 to A-4 in support of his case. On the other hand, first defendant himself was examined as D.W. 1 and he has also examined 7 more wit-nesses as D. Ws. 2 to 8. Exs. B-1 to B-5 were also marked on the side of defendants.
6. In the light of the above pleadings and oral and documentary evidence, the learned trial Judge framed the following issues:
(1) Whether all the suit properties directed in the plaint schedule are the joint family properties of plaintiff and defendants?
(2) Whether the debts enumerated in the sched-ule to D-1's written statement are incurred for joint family purpose and if so, whether the plaintiff is not liable to discharge his share?
(3) To what equities, the parties are entitled?
(4) To what relief?
7. After considering the case of both parties in the light of oral and documentary evidence and of the fact that the defendants have no objection with regard to partition as prayed for subject to sharing the family debts in terms of their share, passed a prelimi-nary decree for partition of the plaint schedule properties by metes and bounds and allotted 9/32 share to the plaintiff, 3/32 share each to second and fourth defendants and 1/32 share to the 8th defendant and given them separate possession. It is also directed that the first defendant will render account from the date of plaint till the date of possession. It is also decreed that the plaintiff is liable to pay 9/32 share, defendants 2 and 4 each 3/32 share and 8th defendant 1/32 share in the debt mentioned in item 1 in the written statement.
8. Inasmuch as the trial court has not accepted the debts with regard to items 2 to 8 as shown to the sched-ule in the written statement, only for the said disallowed debts, defendants 1, 3, 5, 7 and 9 have filed the above appeal. As stated earlier and also as seen from the written statement, the contesting defendants conceded the claim regarding partition and separate possession as well as the share of each party in the suit properties. In view of the above fact, there is no need to discuss the relationship of the parties and the entitlement of their respective shares.
9. The only question to be decided in this appeal is whether the debts mentioned in the schedule to the written statement filed by the first defendant are true and whether those debts have to be shared by all the parties concerned.
10. I have heard Mr. T.R. Mani, learned senior counsel for the appellants and Mr. V. Srinivasan, learned Counsel for the first respondent.
11. Before considering the merits of the above appeal, one more interesting and important aspect has to be considered. In this appeal, fourth respondent, namely, Govindammal has passed away even on 7.11.1986. It is brought to my notice that as soon as the present appeal is entertained by this Court, notice has been served on the fourth respondent on 16.4.1982. In spite of receipt of notice, she has not chosen to contest the appeal by engaging a counsel. In such a situation, I have to consider whether after the death of fourth respondent on 7.11.1986, the appellants have to take steps to bring the legal representatives of the deceased fourth respondent. According to Mr. T.R. Mani, learned senior counsel for the appellants, inasmuch as the fourth respondent has duly been served notice from this Court and she did not contest the appeal, after the death of the said respondent, there is no need to bring her legal representatives. In this regard, he has invited my attention to Order 22, Rule 4(4) read with Rule 11 of Code of Civil Procedure. Before going into Rule 4(4) it is better to verify rule 11 at the foremost. Order 22, Rule 11 runs as follows:
Order 22, Rule 11 : Application of order to appeals: In the application of this order to appeals, so far as may be, the word "plaintiff shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal.
In the light of the above said provision, let me see Order 22, Rule 4(4) of C.P.C. Even before referring the amended Rule 4(4), I shall extract the Madras amendment which stood prior to the amendment made by the Central Act 104 of 1976. Rule 4(4) which stood prior to the amendment is extracted hereunder:
High Court Amendment: (Madras)(i) At the end of Sub-rule (3), add the words except as herein-after provided.
(ii) Insert Sub-rule (4):
(4) The court whenever it sees fit, may exempt the plaintiff from the necessity to substitute the legal representative of any such defendant who has been declared ex parte or who has failed to file his written statement or who having filed it, has failed to appear and contest at the hearing; and the judgment may in such case be pronounced against the said defendant notwithstanding the death of such defendant, and shall have the same force and effect, as if it has been pronounced before death took place. " (1927).
If we read Rule 4(4) on the basis of rule 11 there may not be any defect or bar in disposing of the appeal even without bringing the legal representatives of the deceased, who was properly served notice from this Court prior to his/her death. Now I shall consider the position after Central amendment (Amendment Act 104 of 1976) which reads as follows:
Rule 4(4): The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such de-fendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing, and judgment may, in such case, be pronounced against the said de-fendant notwithstanding the death of such defendant and shall have the same force and effect as if it has pronounced before death took place. " Here also after insertion of Rule 4(4) by Act 104 of 1976, by reading Rule 11 together if any such respondent who has failed to appear and contest the appeal at the hearing even in the absence of any petition for subsisting the legal representatives of the deceased respondent, it is open to the court to pronounce judgment/order against the said respondent notwithstanding the death of such respondent and the said judgment/order shall have the same force and effect as it it has pronounced before death took place. A reading of Rule 4(4) prior to the amendment as well as after the amendment makes the position clear that if any one of the respondents failed to appear and contest the appeal at the hearing, it is always open to the court to pronounce and pass judgment against the said respondent notwithstanding the death of such respondent. In such event, the judgment/order shall have the same force and effect as it it has pronounced before death took place.
12. Apart from the specific provision in the Act, it is also useful to refer two decisions cited by Mr. T.R. Mani, learned senior counsel. The first one is Velappan v. Parappan , which has been rendered prior to the Central amendment. A reading of the said decision clearly shows that the provisions of Order 22, Rule 4(4) could be availed of at any time before judgment. The other decision is in the case of Janabai Ammal v. T.A.S. Palani Mudaliar . The said decision has been decided after the Central amendment. Their Lordships in the Division Bench, after considering the earlier decision of Natesan, J., in as well as other decisions of various High Courts have concluded thus:
13. Natesan, J. in Velappan v. Parappan , taking the decision in Lakshmanan Chettiar case, I.L.R. 58 Mad. 752 : A.I.R. 1935 Mad. 236 as settled proposition and following the same, held as follows:
In my view the provisions of Order 22, Rule 4(4), could be availed of at any time before judgment... If a person is pro forma respondent, having no interest in the litigation, the rule providing for abatement cannot apply. " The Karnataka High Court in Rahim v. Rajamma A.I.R. 1977 Karn. 20, agreeing with the view expressed by Natesan, J., in Velappan v. Parappan , has ruled thus:
If the court, in exercise of its discretion, grants exemption to the plaintiff from the necessity to substitute the legal representatives of the con-cerned defendant, the court can proceed to dis-pose of the suit and pronounce judgment against such defendant notwithstanding the fact that the legal representatives of such defendant have not been brought on record. When such judgment is pronounced, Sub-rule (4) expressly provides that it shall have the same force and effect as if it had been pronounced before the death took place... It, therefore, follows that when a judgment is judgment is pronounced in a suit against the deceased defendant, after according necessary exemption under Sub-rule (4), no abatement as such shall be deemed to have taken effect. As the judgment it-self is deemed to have been pronounced during the lifetime of the deceased defendant, it is obvious that the abatement shall not be deemed to have taken effect. As, in law, it has to be deemed that no abatement has taken effect.... " Recently, in Nepal Chandra v. Rebati Mohan A.I.R. 1979 Gau. 1, the Gauhati High Court, agreeing with the view expressed by this Court in Lakshmanan v. Chidambaram, I.L.R. 58 Mad. 752 : A.I.R. 1935 Mad. 236 and Velappan v. Parappan , observed that "the provisions of Sub-rule (4) of Rule 4 of Order 22 are applicable to appeal as well as to suit and the power to exempt under the said sub-rule can be exercised at any time before the judgment, even after the abatement has taken place. " The learned Judge in that case has also pointed out that as Sub-rule (4) has not specifically insisted on the filing of an application for exemption, unlike some of the other provisions in the Code of Civil Procedure making the filing of an application obligatory for ob-taining any orders from the court under the con-cerned provisions, the contention raised in that case that since an application was not filed for exemption under Sub-rule (4), the exemption should not be granted, had no force. We are in full agreement with the views expressed by the Division Bench of this Court in Lakshmanan v. Chidambaram, I.L.R. 58 Mad. 752 : A.I.R. 1935 Mad. 236, by Natesan, J., in Velappan v. Parappan and by the other High Courts in the decisions referred to above, and accordingly we grant exemption to the appellantplaintiff from the necessity of sub-stituting the legal representatives of the deceased fifth respondent in his place. In this context we would like to point out that though as per the proviso to Section 6 of the Hindu Succession Act, the devolution would be under the Act and not by survivorship if any female relative or a male relative claiming through that female relative as specified in Class I of the schedule survives the deceased. Explanation II to the said proviso clearly states that neither a person who has separated him-self from the coparcenary before the death of the deceased nor any of his heirs, can claim on intestacy a share in the estate. Thus, it is clear that neither the fifth respondent nor his heirs would be entitled to any share in the suit property. Therefore, no purpose would be served by impleading the legal representatives of the fifth respondent. Irrespective of the necessity or otherwise for an application for exemption, the appellant in A.S. No. 598 of 1974 has now filed a petition in C.M.P. No. 1150 of 1980 for exempting her from impleading the legal representatives of the fifth respondent. The petition is allowed.
Both the above referred decisions are directly on the point in issue. I have already concluded that the fourth respondent has been served with notice of this Court in this appeal. She has failed to appear and contest the appeal. In view of the above fact, after death of the fourth respondent, there is no obligation on the part of the appellants to implead the legal representatives of the said deceased respondent. In view of the above stated legal position, the contention of Mr. T.R. Mani, learned senior counsel that even in the absence of any petition to bring the legal representatives of the deceased fourth respondent, there is no impediment for this Court to pronounce judgment against the said respondent. I may also point out that apart from the legal position, it is brought to my notice that after knowing the death of the fourth respondent, the appellants have filed necessary petitions, viz., C.M.P.S.R. Nos. 18566, 18567 and 18568 of 1992 before this Court to bring on record the legal representatives of the deceased fourth respondent in this appeal. During the course of hearing, it is also brought to my notice that even though the said petitions have been numbered by the Registry, those petitions are not readily available/traceable. The learned Counsel for the appellants filed three identical true copies of the petitions to show that the appellants have taken necessary steps and those petitions have been placed before me. In the light of the legal position mentioned above, it is open to this Court to exempt the appellants from the necessity of substituting the legal representatives of the fourth respondent herein, who has failed to appear and contest the appeal. Hence even though the said original applications are not brought before this Court, in view of the above legal position, I hold that the appeal may be proceeded, disposal of and appropriate order passed against the fourth respondent also notwithstanding the deatir of fourth respondent and the judgment decree or order so passed shall have the same force and effect as if it has been pronounced before death took place.
13. Now I shall consider the merits of the appeal, namely, with regard to the debts mentioned by the first respondent. In this regard, Mr. T.R. Mani, learned senior counsel has brought to my notice Ex. B-3 dated 11.11.1978, reply sent by the first defendant to the plaintiff wherein the details of debts incurred by Vasudeva Naicker, first defendant for and on behalf of the family have been specifically mentioned. Having received the said reply on 14.11.1978, the plaintiff did not send any rejoinder disputing the various debts mentioned therein. Likewise in the written statement, in the "schedule of debts", the first defendant has furnished particulars regarding eight debts in detail. Here also the plaintiff has not filed any reply statement disputing various debts mentioned in the schedule to the written statement. It is true that Mr. Srinivasan, learned Counsel for the first respondent/plaintiff contended that there is no provision in the Code of Civil Procedure that for written statement further reply statement has to be filed. It is true that there is no compelling provision to file reply statement for any written statement. However, in the reply notice Ex. B-3, the first defendant has furnished the details of debts, namely, date, name of the creditor, name of the debtor, amount and the purpose for which the loan was obtained. When a party furnishes various informations supported by so many details in the reply notice, naturally the other party disputing the same, has to deny the particulars therein by sending a rejoinder. In order to appreciate the contention of both parties, I am hereunder reproducing the various debts mentioned in Ex. B-3 as well as in the sche-dule of debts mentioned in the written statement:
Schedule of Debts Sl. No. Date Creditor Debtor Principal Purpose 1 2 3 4 5 6 Rs.
1 11.8.69 Ayyasami Rajagopala 2,000 Deepening and
Mudaliar Naicker repairing of
of Mananbapthy. the well.
2 3.2.73 T. Ramaswamy Vasudeva 1,000 Funeral and
Naidu Naicker Ceremony expenses
of Rajagopal.
3 2.4.74 Thandarai -do- 3,000 Marriage
Kalyana- expense of
sundara Mudaliar T.V. Tirumalai
4 6.9.75 Thandarai -do- 600 Repair of
Muthu Naicker residential house
5 28.8.78 Manambathy -do- 4,500 Marriage
Parthalinga expense of
Mudaliar. Sarangan and Janaki.
6 31.8.78 Thandarai -do- 2,000 -do-
Narasimha Naicker
7 28.10.74 Manambathy Vasudeva 600 Agricultural
Shanmugham Naicker expenses.
8 Manambathy -do- 461-77 Due for cloths
Neelakanda purchased.
Mudaliar and sons
As stated earlier, there is no dispute that the plaintiff neither sent any rejoinder to reply notice Ex. B-3 nor filed any reply statement for the written statement filed by the first defendant. In the absence of any specific denial as stated above, the allegations or particulars furnished by the first defendant in the reply notice are deemed to have been admitted. In the above circumstance, I accept the argument of the learned se-nior counsel for the appellants in this regard.
14. Now I shall consider whether the first defendant has established and proved the various debts mentioned in the schedule to the written statement. As far as item No. 1 in the "schedule of debts" is concerned, the court below itself has admitted the case of the first defendant and necessary provision has been made while granting decree for partition. Hence I shall consider the other items, namely, items 2 to 8.
15. Item 2 of the schedule of debts relates to funeral and ceremony expenses of Rajagopal. A sum of Rs. 1,000 has been received from one T. Ramaswamy Naidu by the first defendant on 3.2.1973 for the above said funeral and ceremony expenses of Rajagopal. In order to prove the above said debt, apart from the oral evidence of first defendant as D.W. I, the said creditor viz., Ramaswamy Naidu was examined as D.W. 6, who has specifically deposed thus:
The learned Subordinate Judge merely rejected the above debt on the ground that D.W. 6, the creditor has not obtained any pronote or the said debt is supported by any other record. As stated earlier, the said amount has been borrowed for funeral ceremony expenses of one Rajagopal. In such an occasion, no-body would expect to execute pronote and get money from the creditor that too for a small amount of Rs. 1,000 at relevant point of time. After reading the entire evidence of D.W. 6 coupled with D.W. I, I am satisfied that the first defendant has satisfactorily proved item 2 of the debt.
16. Coming to the marriage expenses described as items 3, 5 and 6, first defendant has borrowed a sum of Rs. 3,000 from one Kalyanasundara Mudaliar of Thandarai for the marriage expense of one T.V. Tirumalai. He has also borrowed another sum of Rs. 4,500 from one Manambathy Parthalinga Mudaliar for the marriage expense of one Sarangan and Janaki. For the above said marriage, first defendant has also borrowed another sum of Rs. 2,000 from one Narasimha Naicker of Thandarai. Now let me consider whether the first defendant has proved the debts regarding marriage expenses (totalling Rs. 9,500). As regards third item, namely, borrowal of Rs. 3,000 from Kalyanasundaram Mudaliar, it is supported by a pronote Ex. B-4 dated 4.4.1974, There is also an endorsement under Ex. B-5 15.5.1976 on Ex. B-4. The creditor of the pronote, namely, Kalyanasundara Mudaliar was examined as D.W. 3, apart from the evidence of D.W.I.D.W. 3 has deposed thus:
He has also explained his family status and capacity to advance loan to various persons. Even in the cross-examination D.W. I has once again affirmed the borrowal of Rs. 3,000 by the first defendant. No doubt, the learned Counsel for the plaintiff contended that the said deed is a time barred one. I am of the view that it is not necessary to go into the question whether the dealt is time barred or not in this proceedings. The point to be considered is whether the first defendant has borrowed money from him for the benefit and towards the expenses of the joint family or not. Exs. B-4 and B-5 coupled with the oral evidence of D.W. I and D.W. 3 would go to show that the debt described as item 3 in the schedule of debts has been amply proved. As regards item 5 of the schedule of debts, namely, other marriage expenses, the said amount was borrowed by first defendant from one Manambathy Parthalinga Mudaliar towards the marriage expenses of one Sarangan and Janaki, who are the sons of the first defendant. Likewise, item 6 was borrowed by the first defendant from one Narasimha Naicker of Thandarai for the marriage expenses of the said Sarangan and Janaki. He has borrowed Rs. 2,000 from the said Narasimha Naicker, who was examined as D.W. 4. He has deposed thus:"
Even in cross-examination he has deposited thus"
Apart from the evidence of the creditor as stated above, D.W. 1 has also explained the above said debts. No doubt, with regard to items 5 and 6, the creditor has not brought the pronotes in order to substantiate. However, the evidence of D.W. 4 is more probable and acceptable. As stated earlier, even in the cross-examination, he explained the transaction. Hence, I am of the view that the first defendant has satisfacto-rily proved the debts obtained for marriage expenses as mentioned in items 3 and 5 and b.
17. Apart from the fact that the first defendant has established the debts obtained towards marriage expenses of the joint family members, legally the joint family members are liable while the family is still joint for the legitimate expenses of male members and also the daughters of the male members of the family. It is relevant to mention the following obser-vation contained in Mulla Hindu law by S.T. Desai 16th Edition:
440. Marriage expenses: In the case of a joint family governed by the Mitakshara law, the joint family property is liable, while the family is still joint, for the legitimate marriage expenses of male members of the family and also of the daughters of male members of the family. " In addition to this Mr. T.R. Mani, learned senior counsel for the appellants has brought to my notice the. following three decisions, namely, (i) Devulapalli Kameswara Sastri v. Polavarapu Veeracharulu, I.L.R. 34 Mad. 422, (it) G. Gopalakrishnan Razu v. S. Venkatanarasa Pazu, I.L.R. 37 Mad. 273 (F.B.). (Hi) D. Srinivasa lyengar v. Thiruvengadath-aiyangar, I.L.R. 38 Mad. 556 (F.B.).
18. In the first case, namely, Devulapalli Kameswara Sastri and Ors. v. Polavarapu Veeracharlu, minor by his guardian kodamachi Bhimanna, I.L.R. 34 Mad. 422, a Division Bench of this Court has held thus:
The marriage of a member of the coparcenary is a family purpose; and where it is reasonably necessary on the part of a prudent manager to borrow money for such purpose, the transaction will bind the coparceners whether they are Sudras or belong to the twice-born classes. Marriage is one of the necessary samaskaras or religious rites, in the case of Sudras, as well as the twice-born classes. The necessity, which will justify an alienation by the manager is not to be understood in the sense of what is absolutely indispensable but what according to the notions of a Hindu family would be regarded as reasonable and proper.
19. In G. Gopalakrishnam Razu (minor by mother Bangaratta) v. S. Venkatanarasa Razu and 3 others, I.L.R. 37 Mad. 273(F.B.), a Full Bench of this Court has concluded in the following manner:
Marriage is obligatory on Hindus who do not desire to adopt the life of a perpetual Brahmachari or of a Sanyasi and debts reasonably incurred for the marriage of a twice born Hindu male are binding on the joint family properties.
20. D. Srinivasa lyengar v. Thiruvengadathaiyanvgar, I.L.R. 30 Mad. 556 (F.B.), is also a Full Bench decision wherein the minority view is as follows:
Marriage is an obligatory ceremony for Hindus who do not desire to adopt the life of a Sanyasi; and a fund for the expenses of the marriage of unmarried co-sharers should be set apart at the partition of the paternal estate.
The above mentioned three decisions clearly show that the joint family member is liable, while the family is still joint for the legitimate marriage expenses of male members of the family and also the daughters of the male members of the family. The above said legal position has not been disputed by the learned Counsel for the first respondent. I have al-ready concluded that the first defendant has proved the marriage expenses which have been mentioned as items 3, 5 and 6 in the schedule of debts.
21. Item 4 relates to borrowal of a sum of Rs. 600 by the first defendant from one Muthu Naciker of Thandarai for repair of residential house. The creditor, namely, Muthu Naicker was examined as D.W. 5. He has deposed thus:
No doubt, in the cross-examination, he has admitted that he has not obtained any pronote or produced any record to show the above debt. The learned Subordi-nate Judge merely rejected the evidence of D.W. 5 only on the ground that since D.W. 5 himself has admitted that there is no bond or record for having given the loan to the first defendant. A perusal of the evidence of D.W. 5 coupled with the evidence of D.W. 1 clearly shows that the first defendant has borrowed a sum of Rs. 660 from D.W. 5 for repairing the joint family house. Even though the first defendant has not placed any documentary evidence as stated earlier, the oral evidence of D.W. 5 is probable and acceptable, hence the reason given by the learned Subordi-nate Judge for rejection of item 4 is also unacceptable.
22. Item 7 of the schedule of debts speaks about the borrowal of Rs. 600 by the first respondent from one Shanmugham of Manambathy. He has borrowed a sum of Rs. 600 towards agricultural expenses. No doubt, the creditor of the said loan has not been examined. However, D.W. I has explained under what circumstance he has borrowed the said amount of Rs. 600. Since D.W. I is maintaining the joint family with agricultural lands both wet and dry, it is probable that there was need to borrow money for agrcultural expenses. Hence, the rejection of the said claim on the ground that the creditor has not been examined cannot be sustained.
23. The last item of the schedule relates to borrowal of Rs. 461.77 from Neelakanda Mudaliar and sons of Manambathy. The saidamount was borrowed by D.W. 1 for purchase of cloths. Here also except the oral evidence of D.W. 1, none was examined from the creditor's side. The learned Judge has merely rejected the said item on the ground of non-production to any documentary evidence. However D.W. I has deposed that when the claim is Rs. 461.77, he commented that D.W. I has not produced any bills for the said purchase. The said contradiction and the absence of a voucher or bill for the small amount of Rs. 461.77 would not dis-entitle the first defendant from claiming this amount. It is common that for purchase of clothes some times, the merchants may not give any receipt or even if it is any receipt or voucher is there, nobody would keep the same for ever. In such a circumstance, considering the joint family, members therein, nature of work etc., the oral evidence of D.W. I can be accepted. The rejection of debts of items 7 and 8 by the court below on the ground that no documentary evidence to substantiate cannot be sustained. For small expenses either for agricultural or for purchase of clothes, it cannot be expected, par-ticularly in the village side to preserve the receipts or vouchers for ever. In view of the above discussion, I am satisfied that the first defendant has proved all the debts mentioned in the schedule to the written statement by placing acceptable, oral and documentary evidence. The rejection of those debts, namely, items 2 to 8 by the court below cannot be sustained. The reasons for rejection of those debts by the learned Subordinate Judge are unacceptable. Among other debts, with regard to the marriage expenses the con-clusion of the court below is not only contrary to the evidence, but also to the well considered decisions of this Court.
24. Under these circumstances, I hold that the debts enumerated in the schedule to the first defendant's written statement are incurred for the joint family purpose, the first defendant has proved the same; hence the plaintiff and other sharers are liable to dis-charge the said debts proportionate to their shares. Since the present appeal is only with regard to the claim of debts of items 2 to 8, for the reasons stated above, the appeal is allowed. Consequently, clause 7 of the decree in O.S. No. 13 of 1979 of Sub Court, Kancheepuram is modified in the following manner:
That the plaintiff do and is hereby liable to pay 9/32 share, defendants 2 and 4 each 3/32 shares and 8th defendant 1/32 share in the debts mentioned in items 1 to 8 of the schedule to the written statement.
In view of the relationship of the parties and the issue involved in the appeal, the parties are directed to bear their own costs in this appeal.