CHARALI KAMESWARA SARMA Vs. MAHANKALI RUJARATNAM

JUDGEMENT

(1.) 1. A question of some consequence in the law of Negotiable Instruments arises in this second appeal. The question is whether a suit can be filed not only against the executant of a promissory note but also his coparceners who are non-executants, when there has been a re-endorsement of the debt by the endorsee in favour of the heirs of the original payee under the promissory note.

(2.) This is a plaintiff's second appeal. He has been un-successful in both the courts. He filed the suit to recover a sum of Rs. 1922/25p. being the principal and interest due on a promissory note dated 7-7-1964 (Ex. A-2) executed by the 1st defendant in favour of the plaintiff's father. Defendants 2 to 5 are the sons of the 1st defendant who had been adjudicated insolvent. The 6th defendant is the official Receiver. Defendants 7 and 9 are the brothers of the plaintiff. They have been added on the ground that they are also entitled to a share in the promissory note amount as per endorsement of transfer Ex. A-4 on the promssory note Ex. A-2.

(3.) Defendants 1 and 6 to 9 remained Exparte. Defendants 2 to 5 were minors and were represented by their mother. The debt under Ex. A-2 was transferred to the plaintiff by an endorsement marked Ex. A-3 Subsequently the father died having left a will. Under the will all the properties not mentioned therein were bequeathed to the four sons. viz , the plaintiff and defendants 7 to 9. The plaintiff made an endorsement of the debt after the death of his father in favour of himself and his three brothers. Since the three other brothers did not join him in filing the suit he joined them as defendants 7 to 9. The defence to the claim came from defendants 2 to 5. On their behalf many contentions were raised. Inter alia it was contended that the suit against the 1st defendant is not mantainable because the leave of the Insolvency Court under S. 28 (2) of the Provincial Insolvency Act is not obtained for filing the suit, that the suit debt was not incurred for family necessity or benefit and was not binding on the sons. The debt was liable to be scaled down under the Madras Agriculturists Debt Relief Act. Another contention is that the plaintiff and defendants 7 to 9 are the transferees of the suit promissory note and not entitled to sue the non-executants of the promissory note i. e., defendants 2 to 5. The last plea was that they and their father-the 1st defendant were divided by metes and bounds on 25-12-1964 under the partition deed Ex. B-1. Properties worth about Rs 37000/- were alloted to the share of the 1st defendant for discharge of the suit debt and other debts, while property worth Rs. 15000/-was allotted to the share of all the defendants 2 to 5 put together. Therefore plaintiff and defendants 7 to 9 should proceed against the share of the 1st defendant only to recover the debt.