BANKIDAS Vs. TANABAI

JUDGEMENT

(1.) 1. This appeal arises from a suit on a promissory, note executed by Kesheo, defendant 2, in favour of the plaintiff, Bankidas. Tanabai has been impleaded on allegations that Kesheo, who is her son-in-law, had been managing her estate and had authority from her to pass document as her agent, and that the promissory note in suit was passed by him in that capacity. The Lower appellate Court relying on the decision in Sadasuk Janki Das v. Kisan Pershad A.I.R. 1918 P.C. 146 has found that Kesho alone is liable on the promissory note.

(2.) IT is first contended in second appeal on behalf of the plaintiff that the document in question is not a promissory note and is not governed by the Negotiable Instruments Act. Referenoe has been made to Venku v. Sitaram [1905] 29 Bom. 82 in which it was held that a document, not dissimilar in terms from the one that I am conserdering, was a bond and not a promissory note, because it was attested and was not payable to order or bearer and because the executant obliged himself to pay the amount to another. This decision merely reproduced the terms of C1. (b) of the definition "bond" in Section 2(5), Stamp Act 1899, and it was not because the document was not payable to order or bearer that it was excluded from the definition of "promissory note" in Section 4, Negotiable Instruments Act. Under that section a document like the present one, which contains simply a promise to pay on demand a certain sum to a specified person, is a promissory note: see 111. (b). To be a negotiable instrument a promissory note, under Section 13 (1), must be payable either to order or to bearer, but explanation (i) to Section 13(1) shows that a promissory note, which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable, is payable to order.

(3.) IT is urged, however, that the suit has not been brought on the promissory note alone but also on the debt for the satisfaction of which the promissory note was executed. That, however, does not appear to me to be the case. There are pleadings as regards the debts to satisfy which the note was executed and as to Tanabai's liability for those debts, in support of the plea that Kesheo acted as her agent in executing the note. But the suit was, in fact, on the note and has been dealt with by the lower Courts on that basis. The plea that Tanabai is liable on another cause of action cannot be taken in this Court for the first time for one reason, the question of limitation would at once arise and would, as far as I can see, defeat the plea; but that is a question that I need not go into. I hold that the suit is on the promissory note and that Tanabai whose liability is in no way shown upon the document cannot be made liable to the plaintiff. The appeal fails and is dismissed with costs.