PERUMAL AYYAR Vs. RAMASUBRAMANIAN CHETTIAR

JUDGEMENT

(1.) THIS second appeal arises out of a suit upon a promissory note executed in favour of one Nagaswami Ayyar, the assignor of the plaintiff by A.T.R.S. Paramasivam Chetti. It is found on the evidence that A.T.R.S. is the vilasam of a firm carried on behalf of defendant 2 Ramasubramania Chettiar. The father of Ramasubramania Chettiar was carrying on this business and before his death he left a will dated 30 October 1920 in and by which he appointed Paramasivam Chettiar as the guardian of his minor son Ramasubramania Chettiar and directed him to continue the business and conduct it so as not to cause loss to the minor. In pursuance of the same, the said business was conducted in the name and vilasam of the A.T.R.S. The debt sued on was admittedly incurred in the course of the said business and the binding character of the debt was not disputed by defendant 2 at the hearing of the appeal before the lower Court. The first Court exonerated defendant 1 and gave a decree against defendant 2 against the joint family properties. THIS decree is obviously unsustainable because it would not be open to the father of defendant 2 to appoint a testamentary guardian in respect of the joint family properties and it would not be been placed in this case and I am not in a position to give that decree in the state of the evidence on record.

(2.) THERE is another point which was decided against the appellant in this case namely that the learned District Munsif allowed an amendment in the case which, it is contended, he ought not to have done. The nature of the amendment is this. The suit was filed against both defendants 1 land 2 originally on the footing that defendants I and 2 were partners in the said business but all the necessary facts and the circumstances under which the promissory note was executed and the debt was incurred were clearly set out in the plaint land the amendment sought was in consonance with the true view of facts that defendant 1 carried on the trade in pursuance of the direction under the will of the father of defendant 2. I think the amendment has been properly allowed. In the interests of justice even where a question of limitation might arise a Court can allow the amendment: Charan Das V/s. Amir Khan A.I.R. 1921 P.C. 50. In the result the second appeal fails and la dismissed with costs.