NATARAJA PILLAI (DIED) Vs. APPASAMI NAIDU

JUDGEMENT

(1.) The legal representatives of the plaintiff, who originally filed the second appeal and died during its pendency, are the appellants. The suit out of which this second appeal has arisen was filed for a declaration that a decree obtained by the defendant against one Alamelu Ammal, widow of Kothandapani Pillai, was not binding on the estate of Kothandapani to which the plaintiff had succeeded as reversioner on the death of the widow. Kothandapani died on 12 February, 1925, leaving landed properties to which his widow Alamelu succeeded as his heir. On 25 December, 1926, she executed a promissory note (Ex. D-1) for Rs. 600 in favour of one Krishnaswami Naidu who endorsed it on 18 September, 1934, in favour of the defendant in the present suit who sued Alamelu, the maker of the note, and obtained an ex parte decree against her in O.S. No. 367 of 1934,. on the file of the District Munsiff's Court of Negapatam for the amount due under the promissory note. The relevant portion of the decree (Ex.,D-5) was in these terms: It is ordered that the defendant personally and from the estate of her deceased husband in her possession do pay to the plaintiff the sum of Rs. 1,083 with interest on Rs. 600 at the rate of 12 per cent, per annum from 24 September, 1934.... Alamelu died in December 1939, and the present plaintiff went into possession of the properties of Kothandapani as the next male reversioner. The present defendant who, as plaintiff, had obtained the decree in O.S. No. 367 of 1934, sought to execute the decree against the estate of Kothandapani in the hands of the present plaintiff and this suit is the sequel to the attempted execution. The plaintiff's case was that the promissory note dated 25 December, 1926, was not supported by any consideration but was collusively and fraudulently executed by the widow; that, in any case, there was no need for the widow to borrow; that, the widow who had first contested O.S. No. 367 of 1934, the suit filed by the endorsee, subsequently suffered an ex parte decree to be passed against her without any justification; and that in no event, could the decree passed in favour of an endorsee of a promissory note given by the widow be executed against the estate in the hands of the reversioner. The defendant denied these allegations of law and fact. The Courts below have dismissed the plaintiff's suit holding that the debt under the promissory note was borrowed by the widow for purposes binding on the estate and that the decree was capable of being executed against the estate of the deceased Kothandapani in the hands of the plaintiff. Hence this second appeal.

(2.) Counsel for the appellant has put forward various contentions. It is argued that the decree in O.S. No. 367 of 1934 has not been, on a proper construction, passed against the estate of the deceased Kothandapani as such, but only against, the widow Alamelu and therefore it is not executable against the properties of Kothandapani in the hands of the plaintiff. The plaintiff is not the heir-at-law or legal representative of the widow. Therefore it is said that the estate of Kothandapani in his hands is not liable to satisfy a decree against the widow. Reference is made in this connection to a decision of Wallace, J., in Narasimiah V/s. Jawanthraj Sowcar (1926) 52 M.L.J. 299 at 301. With reference to a decree passed under circumstances and in terms similar to those of Ex. D-5, the learned Judge observed that it did not direct that : the estate of the deceased now in the hands of the first defendant do pay the decree amount but that the first defendant do pay the decree amount from the estate of the deceased. The learned Judge then observed as follows: To my mind the judgment-debtor of that decree is clearly not the estate but the first defendant, whose liability again is limited to liability to meet the decree amount from the estate of the deceased, and the present petitioner is not the legal representative of the first defendant but the legal owner of the estate in his capacity as heir of the original owner. It appears to me then that the first defendant is the only person against whom execution of that decree could be taken and that it is executable only against her or her legal representative. With all respect to the learned Judge, I am unable to agree with this line of reasoning. The estate of a deceased person cannot be a judgment-debtor, for, dead persons lay down their "legal personality" with their lives. As observed by Ranade, J., in Erava V/s. Sidramappa (1895) I.L.R. 21 Bom. 424 at 453 (F.B.): The so-called estate of a deceased person is a very convenient legal fiction, but, as a matter of fact, there is in Hindu Law at least no such objective reality as the estate of a deceased person. At the moment of Nagappa's death, the property owned by him ceased to be his, and became the property of his heirs subject, of course, to the liabilities and obligations created by him. When, therefore, a decree is passed against a Hindu widow, the question whether it is passed against her personally or against her as representing the estate of the deceased is one of construction depending upon the terms of the decree. Even where a creditor seeks to make the estate of the last male owner liable for his debt, he has to sue only the widow. There is no such separate legal entity as the estate of the deceased. It is not even essential that the plaint should state in so many terms that the widow is sued in her representative capacity as representing her husband's estate or that she should be described as such representative. It is enough if the plaint gives sufficient indication that it was intended to bind the entire estate and not merely to enforce a personal liability of the widow. As the widow represents the entire estate in respect of her own as well as the reversionary interest the creditor must allege that he is seeking a larger remedy and also prove his case. But he need not go further-see Marudanayakam Pillai V/s. Subramaniam Chettiar . In my opinion the decree in O.S. No. 367 of 1934, binds the estate of the last male owner. It is not merely a decree against the widow personally not affecting the estate.

(3.) The further contention of the appellant's counsel is that the suit O.S. No. 367 of 1934 having been filed on a promissory note by an endorsee thereof, the only decree that could be passed was a decree personally against the maker, i.e, the widow, and not a decree against the the estate as upon a debt binding on the estate. Reliance is placed on the judgment of this Court in Maruthamuthu Naicken V/s. Kadir Badsha Rowther for this proposition. In my opinion, this contention is unsound and the decision cited has no relevance. The widow, no doubt represents the estate but her position is not that of a life tenant or a trustee. Her position is that of owner and the whole estate is for the time vested in her though her powers in that character are limited-see Janaki Ammal V/s. Narayanaswami Iyer (1916) 31 M.L.J. 225 : L.R. 43 I.A. 207 I.L.R. 39 Mad. 634 at 637 (P.C.). When she executes a promissory note for a debt borrowed for legal necessity, the creditor looks to the estate for repayment and the widow also obtains the loan as representing the estate. In such cases, the maker of the note is the widow as representing the estate and an endorsee of the promissory note can have a decree against her as representing the estate on proof that the borrowing was for a necessary purpose. The case is different from that of the manager of a joint Hindu family borrowing on a promissory note executed by himself. Junior members in a joint Hindu family are co-owners with the manager and have independent rights of their own in the joint family properties. The manager can, no doubt, incur debts so as to bind the interests of junior members if there is necessity. If the manager borrows money and executes a promissory note which is endorsed (without an assignment of the debt itself), the endorsee can only sue on the note and obtain a decree against the maker and not against persons who are not parties to the note. This is because no one could be made liable on a negotiable instrument unless his name clearly appears as the name of the person liable thereon. In the present case, the endorsee obtained a decree only against the maker of the note, but the maker was a widow representing the estate of her husband in which no other person had then a present interest.