Chintamani Mahapatra vs Satyabadi Kar

Das, J.—This case must go back. The learned Judge has decided the first issue in favour of the appellants. Be has come to the conclusion that Narayan, who executed the/document and Satyabadi were joint. On this finding the plaintiff it entitled to a decree as against the entire joint family if he can establish that there was legal necessity for the loan. The learned Judge in discussing the question of legal necessity records a finding that the minor respondent is not bound; but his judgment is very unsatisfactory on this point. He says that the case of the plaintiff is that Rs. 190 was required for paying off the debts of three mahajans. He apparently declines to consider this question because the khalas kept by the mahajans have not been produced. But surely it was unnecessary for the plaintiff, and it may have been impracticable for him, to compel the mahajans to produce the account books. The onus is undoubtedly on the plaintiff to prove that there was legal necessity for the loan. But if he is unable to establish legal necessity, he is still entitled to succeed if he shows that there was a representation made to him as to the existence of a legal necessity and that he made an honest enquiry and that he was satisfied that there was such a necessity. That is the question which the learned Judge should have decided. It is very often impossible for the creditor to compel third parties to produce their account books and the plaintiff''s suit cannot fail because the third parties did not produce the account books.

The Court to which we propose to send back the case must determine, first, whether there was a legal necessity; and, secondly, if there was not whether a representation was made to the plaintiff that there was a legal necessity and whether he made an honest enquiry about the existence of the legal necessity and was satisfied that it did exist.

We allow this appeal, set aside the judgment and decree of the Court below and send the case to the lower appellate Court for decision according to law. The costs will abide the result.

Adami, J.

I agree.