FILIX JOSEPH SARPRASADAM Vs. PRMSPSUBRAMANIA CHETTIAR

JUDGEMENT

(1.) This second appeal arises out of a suit on a promissory note. The promissory note was executed by the fourth and fifth defendants, the fourth defendant being the mother of defendants 1 to 3 and the fifth defendant their grandmother. The body of the note also mentions defendants 1, 2 and 3, who were all minors at the time, as parties to the note and the fourth defendant signed it on her own behalf and on behalf of the three minors. I may add that the fourth defendant had been appointed executrix of her mother-in-law's will whereby the mother-in-law had bequeathed substantial properties to her grandchildren the present 1 to 3 defendants. Ex. A accordingly recites that the fourth defendant joined in the note in the capacity of "guardian and mother of and executrix for Nos. 1 to 3". The purpose of the loan is stated to be "to meet the Court expenses of getting the probate through Court of the will in favour of the said minors and to meet the expenses of the family".

(2.) The plaintiff prayed for a decree directing defendants 4 and 5 to pay the amount due under the promissory note both personally and from out of the estate of the deceased grandmother of defendants 1 to 3 which the fourth defendant was managing as executrix. The fifth defendant remained ex parte throughout. The fourth defendant was ex parte up to a late stage in the trial and then appeared by a Vakil and sought to raise a contention that she had received no consideration under the promissory note and accordingly there should be no decree against her. Defendants 1 to 3 raised the contention that as their father was alive the mother was not their guardian, that the note was therefore not binding upon them, that in fact there was no consideration for the note and that even if money had been borrowed by the fourth defendant and the fifth defendant under the note, it could not be held to be binding upon the properties bequeathed to them under their grandmother's will because it was only a promissory note loan to defendants 4 and 5 on which the creditor was not entitled to direct recourse against the estate of the testatrix.

(3.) The first issue was raised in rather vague terms, viz., whether the suit promissory note was true, valid and binding on defendants 1 to 3. It was rightly held by the District Munsiff that the fourth defendant was not the guardian of defendants 1 to 3 and these defendants could not accordingly be held to be parties to the promissory note. On the question of consideration, the District Munsiff held against defendants 4 and 5 and granted a personal decree against them; but as regards the claim against the estate in the hands of the third defendant as executrix, the District Munsiff followed the decision in Ammalu Ammal v. Namagiri Ammal , Chidambaram Pillai V/s. Veerappa Chettiar (1917) 6 L.W. 640 and Srishchandra Nandi V/s. Sudhirkrishna Banerji (1931) I.L.R. 59 Cal. 216 and declined to grant a decree. He added that though the plaintiff might be entitled to be subrogated to the fourth defendant's rights of indemnity if any from the estate, the plaint had not been framed on those lines.