KIZHEDATH PAPPI AMMA Vs. RAMA IYER

JUDGEMENT

(1.) This is an appeal by defendants 6 to 9 against that portion of the lower Court's decree which held the properties of the appellant's tarwad liable to satisfy the plaintiff's claim under a promissory note (Ex. A) executed by defendants 1 to 4 in favour of defendant 5 and endorsed over by him to the plaintiff. The suit was in the first instance instituted against the executants alone; but as defendant 1 was also the karnavan of the tarwad, and as the plaint alleged that the promissory note has bean executed for tarwad necessity, the plaint prayed specifically for a direction for payment of the suit debt out of the tarwad properties. Defendant 1 denied the allegation that the note was executed for tarwad necessity. It however appears to have been considered safer to have this question of tarwad necessity raised by some of the other members of the tarwad: the appellants were on their own application added as defendants 6 to 9 and they put the point of tarwad necessity definitely in issue.

(2.) Questions were also raised as to whether the endorsement in favour of the plaintiff was supported by consideration and whether the plaintiff was a holder in due course. The lower Court held that in the circumstances a finding on these questions was unnecessary. We do not see how the question of holder in due course would have any bearing on the question as to the liability of the tarwad properties, for that will always depend on proof as to the nature and purpose of the debt. However, we are not satisfied that the plaintiff was a holder in due course and we are of opinion that the plaintiff is entitled only to such rights as defendant 5 had. The point for determination in the appeal is accordingly that raised by the first issue, namely whether the suit pronote is binding on the tarwad. A contention was advanced before us on behalf of the appellants that even if defendant 5 could have proceeded against the tarwad property for the recovery of the debt evidenced by the suit note, the plaintiff who is merely an endorsee of the note and not an assignee of the original debt, must be limited to the remedy on the note and was entitled to a decree only against the executants. It was also argued that Ex. A had not been executed by defendant 1 in his capacity as karnavan and that reference to him in the body of the note as karnavan and manager of the tarwad, must be taken to be merely descriptive. Lastly, it was said that the suit had been framed only as an action on the promissory note and not as one on the original debt or consideration. These questions do not appear to have been argued before the lower Court; but as they are substantially questions of law, arising on the language of the plaint and the suit note, we allowed them to be argued at some length.

(3.) Notwithstanding the principle recognized in Sadasuk Janki Das V/s. Sir Kishan Pershad AIR 1918 PC 146, the High Courts in India have generally held that in cases not based on mere agency, a promissee's claim under a note is not limited to a personal decree against the executant but may also include relief against the properties of a partnership joint family, or Tarwad which, under the substantive law governing the executant, will be liable for the debt: see Krishnanand Nath Khare V/s. Raja Ram Singh AIR 1922 All 116 and the cases there referred to. The narrower view laid down in Manchersha Ardesar V/s. Govind Ganesh AIR 1930 Bom 424 is not reconcilable with the assumption underlying the recent judgment of the Privy Council in Abdul Majid Khan V/s. Saraswathi Bai , which proceeds on the footing that a promisee from one of several partners may in certain circumstances be entitled to relief against the partnership property. There is an obvious difference between the class of cases dealt with in Krishnanand Nath Khare V/s. Raja Ram Singh AIR 1922 All 116 and cases of agency; in the latter, the undisclosed principal must be held personally liable, if at all, whereas in the former, the plaintiff merely seeks in the suit an adjudication that the liability is of such a character that the interests in certain common property, even of persons who are not parties to the note, are liable for the debt. In the case of a Tarwad, it has been held that a decree obtained against the karnavan as such could be executed against the Tarwad properties: see Ittiachan v. Vellappan (1885) 8 Mad 484; Govinda V/s. Krishnan (1892) 15 Mad 333; cf. Manakat Velamma Vs. Ibrahim Lebbe (1904) 27 Mad 376; such a decree is more analogous to a decree against a Hindu father, than to one against one of several undivided brothers dealt with in Viraragavamma V/s. Samudrala, (1885) 8 Mad 208, Laxman Nilkant V/s. Vinayak Keshav AIR 1910 Bom 262, and Namdev Tukaram V/s. Vishnu Chintaman AIR 1924 Bom 395, for the junior members have no separate interests or shares in the Tarwad property.