AMMAKANNU AYI Vs. MURUGAYYA ODAYAR

JUDGEMENT

(1.) The facts have been stated by ray learned brother whose judgment I have had the advantage of reading and need not be repeated.

(2.) A preliminary question of law raised by the defendant in the Court below and repeated here has first to be dealt with. He contends that, as the plaintiff filed her suit against Ritnathayi in 1914 and obtained a decree, she has elected her remedy and the present suit is not maintainable He relies on Scarf V/s. Jardine 7 A.C. 345; Moorel V/s. Earl of Westmoreland [1904] A.C. 11; and Moore V/s. Flanagan [1920] 1 K.B. 919. He also relies on Kendall v Hamilton 48 L.J. C.P. 705. Scarf V/s. Jardine 7 A.C. 345 is a case of a customer of an old firm of partners selling goods to a new firm consisting of an old partner and a new partner and carrying on business under the old style without notice of the change. In that case, the old firm was liable only on the ground of estoppel and after the plaintiff sued the new firm, it was held that he disavowed the estoppel and could not set it up again (see Lord Selbourne, L.C., at 350). It was a case where either firm (but not both) could have been held to be legally liable, The present case is not a case where either Ratnathayi or the present 1 defendant can be legally hell to be liable on the mortgage. If Rathnathayi is the owner of the mortgaged properties, only Rathnathayi is liable on the mortgage and not the 1 defendant. If, however, the 1 defendant is the owner of the suit properties, and if it is held that Rathnathayi did not represent him in executing the mortgage bond, she is personally liable and on the mortgage neither is liable If it is held that Rathnathayi represented him in executing Exhibit A, tae 1 defendant is liable on the mortgage and Rathnathayi is not liable. Thus, on no version of the facts, do we get a case where plaintiff, at his option, an hold one or other of two persons (but not both) liable. The alternation of the liabilities of Rathnathayi and 1 defendant arises on different views of the facts. I am, therefore, of opinion that the case in Scarf V/s. Jardine 7 A.C. 345 does not apply. The cases of Morel V/s. Earl of Westmoreland [1904] A.C. 11 and Moore v. Flanagan [1920] 1 K.B. 919 are similar. It was held in each of those cases that it was not a case of joint liability but only of alternative liabilities and Scarf V/s. Jardine 7 A.C. 345 applied.

(3.) The other case relied on by the appellant Kendall V/s. Hamilton 48 L.J.C.P. 705 was a case of agent and principal. Under Section 233 of the Contract Act the liability of the principal and agent is joint and several. The question how far the principle of Kendall V/s. Hamilton 48 L.J. C.P. 705 will apply in India has been the subject; of difference between the Indian High Courts and cannot be regarded as quite settled see Shivlal Motilal V/s. Birdichand Jivraj [1917] 19 Bom. L.R. 370 and Kendall V/s. Hamilton 48 L.J. C.P. 705 and Muhammad Askari V/s. Radha Ram Singh [1900] 22 All. 307 unless the decision in Bhagwati Prasad V/s. Radha Kishen Sewak Pande [1893] 15 All. 304 can be regarded as settling it. That was a case of an agent and undisclosed principal and the Privy Council reversing the decision in Bir Bhaddar Sewak V/s. Sarju Prasad [1887] 9 All. 681 in which the High Court dismissed the suit against the principal following Priestby V/s. Fernie 3 H. & C. 977 and referring to the notes to Thompson V/s. Davenport 9 B. & C. 78 gave an equitable charge against the principal. The fact that, Bir Bhaddar Sewak v. Sarju Prasad [1887] 9 All. 681 was reversed by the Privy Council in Bhagwati Prasad V/s. Radha Kishen Sewak Pande [1893] 15 All. 304 was evidently not noticed by that High Court in Muhammad Askari V/s. Radha Ram Singh [1900] 22 All. 307.