NARAYAN RAJARAM Vs. PRABHAKAR KESHAV

JUDGEMENT

(1.) THE facts leading up to this appeal may be briefly stated: One Keshav Bhangale, father of defendant 1 and the husband of defendant 2 executed a promissory note on 5-6- 1941, in favour of one Krishnaji Amrit Kulkarni, with whose shop Keshav had dealings. On 1-6- 1942, Krishnaji endorsed the said promissory note in favour of the plaintiff. Keshav died on 19 9-1941. At the time of his death, Keshav was the manager of the joint family consisting of himself and his minor son defendant 1. The plaintiff filed a suit to recover the amount due on the promissory note and made the son and the widow of Keshav as also the three brothers of Keshav as party defendants, on the allegation that Keshav and his three brothers and his son constituted a joint and undivided Hindu family. The learned Judge held that the three brothers were not joint with Keshav and he passed a decree in favour of the plaintiff only against the son and the widow of Keshav, but limited the decree to the separate property of the deceased Keshav come to the handa of defendants 1 and 2. From that decision the plaintiff has preferred this appeal and defendants 1 and 2 have filed cross objections. It is contended on behalf of the plaintiff that the learned Judge was in error in passing a decree restricted to the separate estate of Keshav. His contention is that defendant 1, as the son of Keshav is liable to discharge the debt of his father on the well known principle of Hindu law of the pious obligation of a son and that the decree should also be executable against the joint family property come to the hands of defendant 1. On the other hand, the contention of the respondents is that the suit as framed by the plaintiff was not maintainable and should have been dismissed.

(2.) NOW in order to understand the contention of the parties, it is necessary in the first place to decide what is the frame of the suit. The learned Judge has taken the view that the suit is on the promissory note. We are unable to accept that view. Looking to the plaint it is clear that the plaintiff has sued on the original debt. The plaint sets out the whole history of how this debt was contracted by Keshav and then avers that the debt had been contracted for a reasonable cause; that all the defendants, the joint family and the estate had benefited by the same and that Keshav had contracted the debt in his capacity as the manager of the joint family for agricultural purposes and for reasonable needs of the family. Finally the plaintiff prays for a decree to be recovered from the defendants through the estate of the joint family of the deceased Keshav and the present defendants and through the separate estate of Keshav come to their hands. On a perusal of this plaint two points are apparent: first, that this is a suit on the original debt and not on the promissory note, and the other, that it is not a suit against the legal representative of the maker of the note but is a suit against all the members of the joint Hindu family of which according to the plaint Keshav was the karta, on the basis that the members of the joint family and the estate of the joint family sere liable to make good the debt contracted by the karta. This is not a suit by a promisee of a promissory note. It is a suit by an endorsee. Now, the effect of an endorsement is set out in Section 50, Negotiable Instruments Act, and the effect is that the property in the promissory note is transferred to the endorsee with the right to further negotiation. It is to be noted that thej original debt in respect of which the promissory note was passed is not assigned to the endorsee. The endorsee has no title to the debt. No privity is established with regard to the debt between the endorsee and the maker of the promissory note. All that the endorsee gets by the endorsement is the right to sue on the promissory note and to recover the amount due under it. It therefore follows from this that an endorsee of a promissory note can only sue on the promissory note itself. He cannot sue on the debt as he is not entitled to that debt and in this case as the suit is by an endorsee not on the promissory note but on the original debt, the suit is not maintainable.

(3.) THERE is also another important principle underlying the law with regard to negotiable instruments against which this plaint and this suit offends. That principle is this: A suit on a promissory note can only be filed against the maker of the promissory note or his legal representative. This suit is not against the maker because the maker is dead. It is equally clear that the suit is not against the legal representative of the maker. As I have pointed out earlier the suit is against the members of a joint and undivided Hindu family on the basis that the debt was contracted for the benefit of the family by the karta of the family. Therefore whichever way one looks at it, the suit is not competent. If it is a suit on the original debt, then the endorsee cannot maintain the suit. If the suit is on a promissory note, then it is not against the maker of the promissory note or against his legal representative and therefore also the suit must fail.