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Rakapalli Vira Raghavulu Naidu Vs. Dhara China Rajalingam and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1939Mad846; (1939)2MLJ531
AppellantRakapalli Vira Raghavulu Naidu
RespondentDhara China Rajalingam and ors.
Cases ReferredMarnthamuthu Naicker v. Kadir Badsha Rowther
Excerpt:
- - the indorsee of a promissory note executed by the managing member of a hindu joint family is limited to his remedy on the note unless the indorsement is so worded as to transfer the debt as well and the stamps law is complied with;.....of kistna dated 12th april, 1935, in o.s. no. 15 of 1933, a suit to recover the amount due on a promissory note ex. a, dated 12th february, 1930, executed by the first defendant in favour of the late mallikarjuna rao, the father of the plaintiff's indorsers. the suit was directed not merely against the maker of the note, the first defendant, but also against his father, the second defendant, and his son, the third defendant. it may be mentioned in this connection that the first defendant became insolvent and the official receiver of vizagapatam was brought on record as the fourth defendant. the learned district judge passed a decree only as against defendants 1 and 4, that is to say, as against the estate of the first defendant, and dismissed the suit as against defendants 2 and 3......
Judgment:

Pandrang Row, J.

1. This is an appeal from the decree of the District Judge of Kistna dated 12th April, 1935, in O.S. No. 15 of 1933, a suit to recover the amount due on a promissory note Ex. A, dated 12th February, 1930, executed by the first defendant in favour of the late Mallikarjuna Rao, the father of the plaintiff's indorsers. The suit was directed not merely against the maker of the note, the first defendant, but also against his father, the second defendant, and his son, the third defendant. It may be mentioned in this connection that the first defendant became insolvent and the Official Receiver of Vizagapatam was brought on record as the fourth defendant. The learned District Judge passed a decree only as against defendants 1 and 4, that is to say, as against the estate of the first defendant, and dismissed the suit as against defendants 2 and 3. The plaintiff has preferred this appeal from the decree of the Court below dismissing the suit against defendants 2 and 3, and the only question for determination in this appeal is whether the plaintiff is entitled to a decree against defendants 2 and 3.

2. It must be remembered that the suit is by an indorsee and is based on the promissory note, Ex. A. In paragraph 4 of the plaint it is mentioned that the endorsement was obtained of the note in order to collect the amount due thereunder, and it would appear as if the plaintiff is only an indorsee for collection and not for value. The plaint does not allege that the plaintiff paid anything for the indorsement, and on the other hand it is stated in paragraph 4 that the transfer of the promissory note was obtained in order to collect the amount due on the note. It is obvious that neither the son nor the father of the first defendant could be made liable directly on the promissory note in which neither of them is mentioned. It is enough in this connection to refer to the recent Full Bench decision in Marnthamuthu Naicker v. Kadir Badsha Rowther : AIR1938Mad377 , in which the head note runs as follows:

The indorsee of a promissory note executed by the managing member of a Hindu joint family is limited to his remedy on the note unless the indorsement is so worded as to transfer the debt as well and the stamps law is complied with; and therefore in the case of an ordinary endorsement the indorsee cannot sue the non-executant coparceners on the ground of their liability under the Hindu Law.

3. In the present case the indorsement is of the ordinary kind; it is not so worded as to transfer the debt itself nor has any stamp duty been paid on the indorsement. It was alleged in the plaint that there was an agreement by the second defendant on the 12th January, 1931, whereby he paid Rs. 2,000. being part of the amount due to the original payee, and the balance was promised to be paid after ' some time., This; agreement, which is marked as Ex. F in this case, is however riot an agreement with the plaintiff in the present suit but only with the original payee, and it is not the plaintiff's case that the rights under this agreement were also transferred to the plaintiff along with the promissory note. While the promissory note was filed along with the plaint, this letter Ex. F was not filed, and if it had really been relied upon as part of the cause of action as it is now sought to be, it would have been filed along with the plaint. Even assuming that the plaintiff is not a mere indorsee for collection but is an indorsee for value, it would not follow that the indorsement ipso facto transferred the rights under the letter Ex. F to the plaintiff. The Advocate for the appellant relies on Section 8 of the Transfer of Property Act and in particular the following passage therein, namely:

Where the property is a debt or other actionable claim, the securities therefor.

4. This is not however a case in which there has been any transfer in law of either a debt or of any actionable claim. What was transferred by the endorsement was only the property in the promissory note and nothing more. This is therefore a case to which the particular portion of Section 8 of the Transfer of Property Act relied upon will not apply. We are therefore of opinion, though not for the reasons found in the judgment of the Court below, that the Court below was right in dismissing the claim of the plaintiff as against defendants 2 and 3. The appeal therefore fails and is dismissed with costs of respondents 2 and 3.


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