R S RAMA SHENOI Vs. MAHALLAGNA

JUDGEMENT

(1.) A decree was obtained against the elder brother of the plaintiff in the Cochin Court. In the cause title, he was described as the manager of the joint family. Apparently the plaint alleged that the family property was liable for the claim as the debt was contracted for family purposes. The defendant in the Cochin Court pleaded that no decree should be passed against him as manager. Therefore issue 7 was framed. The Cochin Judge held that the burden of proving that the defendant was not the manager and that the debt was not binding on the family lay upon him, and passed a decree against him personally and against the family properties. The decree was executed against the Cochin properties and then transferred to the British Court under Section 44 of the Code of Civil Procedure. In our Court, a claim was preferred by the plaintiff against the attached properties on two grounds:--(a) that the defendant in the Cochin suit had become divided from the plaintiff before suit and (b) that the decree was otherwise not executable against the properties in the possession of the plaintiff. The claim was rejected. The plaintiff has brought this suit to establish his right. The Courts below have dismissed the suit. Hence this second appeal.

(2.) Dr. Pandalai for one of the brothers, the appellant in Second Appeal No. 2181 of 1915, contended that it was the duty of the Courts below to have decided whether there was a division prior to the Cochin suit and whether the brother who was sued in that Court was the manager. It is clear under Rule 63. Order 21 that the burden of proof is on the plaintiff to establish his claim. Beyond stating that he was divided, he has asked for no issue; and has adduced no evidence on the question of division or managership; the plaintiff is not therefore entitled to ask us to send the case down for a finding on that question.

(3.) The learned Counsel further contended that, as the Cochin Court was wrong on the question of the burden of proof, the judgment must be deemed not to have been given on the merits. We are unable to accept this contention. In the Cochin Court, the general law administered relates to Marumakkathayam Tarwads; and as in a suit against the Karnavan as such the decree would be binding on the Anandravans, unless the latter could show that the Karnavan was not acting on behalf of the Tarwad, the idea seems to have gained ground that in the case of suits against managers of Marumakkathayam families the onus is on the other members to show that the debt is not binding on them. This is not the law as it obtains in British India. It is for the creditor to prove that the debt is recoverable against the members of the family; we may, therefore, take it "that the Cochin Court was not right in its view of Hindu Law. Does that render the judgment one not given on the merits ? We have not before us all the materials on which the Cochin judgment was based. Consequently, we are unable to hold that the decision was not on the merits, The decision of the Judicial Committee in Keymer v. Visvanadha Reddy (1916) I.L.R. 40 M. 112 : 32 M.L.J. 35 (P.C.) has no bearing on the present case. There is no warrant for the proposition that a wrong view as to onus would have the effect of rendering a foreign judgment one not given on the merits.