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Angad Singh Vs. Srinath Das - Court Judgment

LegalCrystal Citation
SubjectContract
CourtAllahabad
Decided On
Judge
Reported in3Ind.Cas.403
AppellantAngad Singh
RespondentSrinath Das
Excerpt:
.....one major and other minor--promissory-note executed by minor--liability of the major-debtor--oral contract independently of promissory note. - - (a) a may accept a joint debt for himself as well as for b. this very distinctly appears from the following portion of the judgment of the lower appellate court: (c) the debt jointly incurred by the father and the son is alleged to carry interest and it is incredible that a money-lender whose sole motive for advancing money is to get interest would accept promissory-notes which carry no interest for a debt which carried interest specially when he was in possession of good evidence' to prove the oral debt. (d) the allegation in the first paragraph of the plaint that the entire business of the father and the son is joint fits in with..........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 6th 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.....
Judgment:

Karamat Husain, J.

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 9th 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 11th 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 9th May 1906 and 1st June 1906, were filed with the plaint. One of the pleas raised in the written statement dated the 25th November 1907 filed by Bijai Bahadur Singh was that on the 9th 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 25th '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 6th 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 6th 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. Taley Singh A.W.N. (1903) 217 and Musammat Nanhi v. 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. Sheikh Khan 7 C. 256 which was followed in Banarsi Prasad v. Fazal Ahmad 28 A. 298 : A.W.N. 1906; 9 : 3 A.L.J. 26 and in Yarlagadda Veeraraghavyya v. Gorantla Ramayya 15 M.L.J. 484; Krishna Ayyar v. Krishnasami Ayyar 23 M. 597; Bageshri Dayal v. 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 25th of April 1907; Mayen v. Alston 16 M. 238 and Baisnab Chandra Be v. Ravidhan Dhar 11 C.W.N. 139. He refers to Sheikh Akbar v. 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, 7th 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,

4. Ordinarily one says that a particular act is done jointly by two persons and the idea of their union into one juristic person and the representation of such a person by one natural person is not present to one's mind but analytically those elements are present inasmuch as a joint act by two or more natural persons, without the formation of one juristic person which is represented by one natural person, is, as has already been shown, inconceivable. This leads me to remark that the expression when two or more persons make a joint promise 'in Section 43 of the Indian Contract Act, cannot be taken to mean that a joint promise can proceed from them without their fusion into one juristic person who is represented by one natural person. The expression states the net result and does not go into the process which brings about that result.

5. Having analysed a joint contract and set forth the three modes in which such a contract can be formed let me examine the pleadings of the plaintiff to see if there is any trace in them of an oral and joint contract entered into, in one of the three modes, by the father and the son, independently of the promissory-notes, which created a complete cause of action against them both but in satisfaction and discharge of it the promissory-notes were accepted by the plaintiff and which is the basis of the claim.

6. There is no trace of any such oral contract in the pleadings of the plaintiff.

7. The case set up in the lower appellate Court and the case found by that Court for the plaintiff is that the father and the son jointly borrowed the money from the plaintiff, that the father being a Government servant did not execute the promissory-notes but caused them to be executed by the son alone and that those notes are the basis of the claim. This very distinctly appears from the following portion of the judgment of the lower appellate Court:

Plaintiff Babu Sri Nath .Das claimed Rs. 550, principal Its. 500 and interest Rs. 50, on two promissory-notes, one for Rs. 300 dated the 9th May 1906, alleged to have been executed by Bijai Bahadur Singh,/ and impleading his father Angad Singh as joint member of the family.'*** Defendant Bijai Bohadur Singh, the executant of the promissory-notes, dated the 9th May and the 1st June 1906, had admitted in his written statement the receipt of the whole sum of Rs. 500 but pleaded repayment of the same. Had any consideration been really wanting the party immediately concerned would have been the first person to plead it.' ** 'I find that both the defendants jointly borrowed Rs. 500 and the promissory-notes were caused to be executed in the name of Bijai Bahadur in whose name the contract was held for which the loan was required, although both the defendants were jointly interested in the profits arising out of the contract'. Independently of the findings of the lower appellate Court as to the case set up for the plaintiff in that Court, the following considerations leave no doubt in my mind that the debt claimed was advanced on the promissory-notes, that they were not taken in lieu of a pre-existing joint debt under an oral contract and that the notes were produced as the basis of the claim.

(a) The material portion of the two promissory-notes may be rendered as follows:

I have borrowed from you Rs. 300 the half of which is Rs. 150 when I get my cheque you will deduct it. Keep this note with you; 9th May 1906,' 'As I have borrowed Rs. 200 from. Babu Srinath Das agent of the district treasurer I execute this note that it be of use when needed. 1st June 1906.The language of the promissory-note of the 1st June 1906 conclusively shows that it contains the terms of an original debt for which it was executed and that it was not given in satisfaction and discharge of any joint debt the cause of action for which had been complete before its execution.

(b) The language of the promissory-note of the 9th May 1906 coupled with the statement of the plaintiff that it was executed between 11 and 12 of the day and that the money was paid then and there makes it certain, that the note was taken for an original debt.

(c) The debt jointly incurred by the father and the son is alleged to carry interest and it is incredible that a money-lender whose sole motive for advancing money is to get interest would accept promissory-notes which carry no interest for a debt which carried interest specially when he was in possession of good evidence' to prove the oral debt.

(d) The allegation in the first paragraph of the plaint that the entire business of the father and the son is joint fits in with making the father liable for the loan taken by the son better than with the theory that the father and the son jointly borrowed the money under an oral agreement.

(e) The natural meaning of the allegation in paragraphs 3 and 4 of the plaint is that the notes were executed for the money advanced on them and that the father by causing the son to execute them was as much liable on the notes as the executant himself.

Paragraphs 3 and 4 of the plaint completely demolish the theory that an oral debt is the basis of the claim.

(f) The date on which the cause of action is alleged in the plaint to have arisen is the 11th July 1907, and it is not shown how this date could be the date of the cause of action for an oral debt the terms of which are not stated anywhere in the pleadings.

(g) The promissory-notes were filed with the plaint as the basis of the claim and when they were shown to the executant during his examination they were called the basis of the claim.

(h) If the claim was not based on them why was an issue as to the minority of the executant framed and why was the finding of the first Court on that issue attacked in the memorandum of appeal to the lower appellate Court. That memorandum of appeal contains five pleas and four of them challenge the finding that the executant at the time of the execution of the promissory-notes was a minor.

8. It only remains to state that the statement of the plaintiff's pleader on the 6th January 1908 does not contain any allegation to the effect that there was an oral and joint contract independently of the promissory-notes and that it is the basis of the claim.

9. When the plea of minority was raised by the executant of the notes, the plaintiff's pleader, no doubt, attempted to base the claim upon an oral agreement in proof of which the promissory-notes were produced. He did not, however, say that the claim was based upon an oral agreement, which was independent of the promissory-notes. The allegation that the basis of the claim was an oral agreement, in proof of which the promissory-notes were produced, has no sense inasmuch as those notes cannot prove any oral contract which they do not contain. The absurdity of the statement, I presume, was the reason why the case of an oral agreement to be proved by the promissory-notes was given up in the lower appellate Court and the case that the money was advanced on the two promissory-notes under which the father and the son were jointly liable was sought to be established. In this connection I may remark that the statement of the learned Vakil for the respondent before me that the notes were produced to prove the joint liability of the son under the oral and joint contract by which the father and the son incurred a joint liability is a modification of the statement of the Pleader of the plaintiff in the first Court and is difficult to follow. A promissory-note can, in no way, prove the joint liability of the executant under an oral contract which is independent of the promissory-notes. To sum up, the case sought to be established by the plaintiff in the lower appellate Court and rightly found by that Court is that both the father and the son jointly borrowed Rs. 500 on the two promissory-notes which were caused by the father to be executed in the name of the son and that both the father and the son were jointly interested in the business for which the money was borrowed.

10. The lower appellate Court on the above findings decreed the claim in full against the father and exempted the son on the ground of minority.

11. This decree cannot stand for the simple reason that the executant of the promissory-notes has been found to be a minor and that a contract entered into by a minor is void and creates no liability see Mohori Bibee v. Dharmodas Ghose 30 I.A. 114 : 30 C. 539.

12. In this view of the case it is unnecessary for me to consider the rulings relied on by the learned Vakil for the respondent inasmuch as there is no oral and joint contract which is independent of the two promissory-notes and on which the plaintiff may sue and inasmuch as the contract entered into by the son on which the father is sought to be made jointly liable is void.

13. The result is that I allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiff's claim with costs in all Courts.


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