ANGAD SINGH Vs. SRINATH DAS

JUDGEMENT

(1.) This was a suit by Babu Srinath Das against Babu Bijai Bahadur Singh and his father Babu Angad Singh for the recovery of money. In the first paragraph of the plaint it is alleged that the two defendant's are joint.

(2.) Paragraph 3 of the plaint is translated as follows: On the 9 May 1906, the defendants borrowed Rs. 300 from the plaintiff at the Court of the Collector and caused defendant No. 1 to execute a stamped note of hand. They covenanted that they would pay interest on the aforesaid amount at the rate of Rs. 2 per cent, per mensem. Paragraph 4 states that subsequently the defendants borrowed Rs. 200 from the plaintiff on the first of June 1906 and caused defendant No. 1 to execute a note of hand bearing a stamp label of the value of 1 anna. They covenanted that they would pay interest at the rate of Rs. 2 per cent, per mensem. In paragraph 6 it is alleged that the plaintiff sent a notice to defendant No. 1 by way of demand of money on the 11 of July 1907 and that the cause of action arose on that date. The relief sought is a decree against both the defendants. Both the promissory- notes, dated 9 May 1906 and 1 June 1906, were filed with the plaint. One of the pleas raised in the written statement dated the 25 November, 1907 filed by Bijai Bahadur Singh was that on the 9 of May 1906 and the first of June 1906 he was a minor and incapable of entering into a contract. Angad Singh, in his written statement, dated the 25 November 1907, pleaded that he was not liable as he did not borrow and as the money was not borrowed for him or his benefit. A robkar dated the 6 January 1908 of the Court of the learned Munsif shows that the learned Vakil for the plaintiff stated as follows: Our claim is on the basis of an oral contract and we produce the pro- notes in proof of it. The claim is not based upon the pro-notes. We produce both promissory-notes in proof of it." This statement was made after the parties had been examined. The plaintiff, when he was examined on the 6 of January 1903, stated that "both defendants came to me to borrow money. Babu Angad Singh said The cheque in favour of Bijai Bahadur will come (to you) then you will take the money (you advance). I am a Government servant, and there is no need of your asking me to execute a promissory-note. The money on both occasions was given to Baba Angad Singh." The Court of first instance came to the conclusion that Bijai Bahadur was a minor at the time he executed the promissory-notes, that the money was borrowed by both the defendants jointly and gave a decree for 11s. 440. Both parties appealed to the learned District Judge. The plaintiff appealed on the ground that Bijai Bahadur was not a minor at the time the promissory notes were executed and that the sum of Rs. 100 ought not to have been deducted. Babu Angad Singh impugned the decree of the first Court on the ground that he was not liable to pay the debt. The lower appellate Court modified the decree of the first Court and decreed the entire claim. The defendant Babu Angad Singh has preferred a second appeal to this Court. It is urged by his learned Counsel that the promissory-notes executed by Bijai. Bahadur do not make Angad Singh liable thereon and that no oral evidence is admissible in this case to render him liable. The learned Counsel for the appellant relies upon Parsotam Narain V/s. Taley Singh A.W.N. (1903) 217 and Musammat Nanhi V/s. Daulat Ram 6 A.L.J. 86 (Notes) : 2 Ind. Cas. 403. The learned Vakil for the respondent in answer to the contentions of the appellant's counsel says that the case of the plaintiff is that independently of the promissory-notes the father and the son both jointly borrowed money from the plaintiff under an oral agreement which created a complete cause of action against them both and which can be proved by oral evidence. According to him the promissory-notes do not constitute the basis of the claim and were produced simply in proof of the joint liability of the son under the oral agreement by which the father and the son incurred a joint liability. He submits that the basis of the claim is the oral agreement to which both the father and the son were parties and that oral evidence is admissible to establish it. He refers to the following cases: Sheikh Akbar V/s. Sheikh Khan 7 C. 256 which was followed in Banarsi Prasad V/s. Fazal Ahmad 28 A. 298 : A.W.N. 1906; 9 : 3 A.L.J. 26 and in Yarlagadda Veeraraghavyya V/s. Gorantla Ramayya 15 M.L.J. 484; Krishna Ayyar V/s. Krishnasami Ayyar 23 M. 597; Bageshri Dayal V/s. Pancho A.W.N. (1906) 89 : 3 A.L.J. 314; 28 A. 473 an unreported ruling of this Court in S.A. 612 of 1906 decided on the 25 of April 1907; Mayen V/s. Alston 16 M. 238 and Baisnab Chandra Be V/s. Ravidhan Dhar 11 C.W.N. 139. He refers to Sheikh Akbar V/s. Sheikh Khan 7 C. 256 and the cases which follow it in support of the proposition that when a cause of action for money is complete in itself independently of promissory-note and the debtor then gives the note, the creditor, in case the note is inadmissible in evidence, may sue for the original consideration. He refers to other rulings to show that the joint liability of the father may be proved for the joint debt for which the son alone executed the promissory-notes. In order to deal satisfactorily with the questions involved in this appeal, I have first to analyse a joint contract and then to see if there is any trace of such an oral contract as is attempted to be made out for the plaintiff in his pleadings. When two natural persons A and B intend to take a joint loan from C, they enter into one contract only which consists of one offer and one acceptance. This single acceptance may be effected in one of the three following ways: (a) A may accept a joint debt for himself as well as for B. (b) B may accept it for both. (c) A and B may separately appoint D as their agent to accept a joint debt for them. Whichever of the three modes the two natural persons adopt, they, in order to contract a joint debt, have first to unite themselves into one juristic and artificial person and have secondly as a juristic person to appoint separately a natural person as their agent to give expression to one acceptance on their behalf. This is not a matter of convenience but of juristic necessity. The contract with C which creates a joint liability is admittedly one and the unity of the contract necessitates the unity of. the acceptance. This unity of acceptance makes the unity of the acceptor inevitable. To say that one acceptance may proceed from two acceptors is against those first principles which underlie the human ratiocination. Just as one cannot think, that the one and the same ounce of gold has come out of two mines, that the one and the same apple has been borne by two trees, that the one and the same child is born of two mothers or that the one and the same effect is the result of two efficient causes, so one cannot think of one acceptance proceeding from two acceptors.

(3.) This necessary unity of the acceptors renders the fusion of A and B into one juristic person indispensable. Such an incorporation, however, is not enough for the formation of the contract which creates a joint liability. The acceptance has to be expressed so that the contract may be formed. But a juristic person is incapable of giving expression to an acceptance or of doing any other executive act inasmuch as it has no objective existence. Hence the necessity of appointing a natural person as an agent to give expression to the acceptance, Thus it is a truism that two or more natural persons can only be a party to a contract which creates a joint liability by uniting into one juristic person which is represented by one natural person. The necessity of the representation of a juristic person by a natural person is recognised in those cases in which a juristic act is to be done by a corporation. The correct and comprehensive proposition ", says Sir Frederick Pollock, in his Principles of Contract p. 117, 7 Edition, "is that a corporation can do no executive act except by an agent and a corporate seal is only one way of showing that the person entrusted with it is an authorised agent of the corporate body ". The necessity of the representation of two or more natural persons by one natural person is not limited to legal transactions. In all the affairs of life when an act is to be done by two or more natural persons as an expression of their corporate will, it can be done only by one natural person as their agent. An act cannot possibly be done at the one and the same time by more than one natural person,