1. The second defendant executed a promissory note to the plaintiff on 27th July, 1919. He was then the junior paternal uncle and de facto guardian of the minor 1st defendant. The promissory note was for the discharge of a mortgage debt over the minor's estate. In the body of the promissory note, 2nd defendant described himself as guardian and junior paternal uncle of the minor Somasundaram Mudaliar (1st defendant) and he signed it as 'Ramanatha Mudaliar, Kurnam'. The point for decision in this case is whether he signed the note in his, own personal capacity or in his capacity as de facto guardian of 1st defendant.
2. Now, in a matter of Negotiable Instruments which may pass from hand to hand to persons who have no personal knowledge of original parties at all, the law that it must be clear on the face of the note who has executed it and whose estate is liable for it must be interpreted more strictly than in the case of a contract, and citations of cases which deal with contracts seem to me of little value in this connection. I am clear that the proper principle is that elasticity in the interpretation of the law in the matter of a promissory note is not permissible, and that if parties do not make it clear on the face of the note that the executant signing it is binding not himself but some one else, they must themselves take the consequences.
3. In the present case I am unable to hold that the mere description of the executant as guardian and junior paternal uncle is sufficient to indicate that the executant did not intend to bind his own estate. On the contrary the note goes on to say 'I (that is, he who signs, Ramanatha Mudaliar) have received cash Rs. 750. I shall on demand....' and the description of himself in the signature is not 'guardian' but 'kurnam'. I think it is clear that he executed the note in his own personal capacity and that it does not bind and was not intended to bind the minor's estate.
4. The respondent calls in aid a decision in Krishna Aiyar v. Krishnaswami Aiyar ILR (1900) M 597 but that clearly has no application to the present case, since the present case is not one where the 1st defendant by his personal law is liable in respect of the debt incurred by the 2nd defendant. The decision in Krishna Chettiar v. Nagamani Ammal ILR (1915) M 915 is in point. It proceeded on the footing that the language of Section 28 of the Negotiable Instruments Act cannot by analogy be applied to a case of guardian. But the correctness of this decision was questioned in Ammalu Ammal v. Namagiri Ammal : AIR1918Mad300 as noted by the late Chief Justice in Palaniappa Chettiar v. Shaninugam Chettiar : (1918)35MLJ90 . A case of this High Court reported in Ramasicami Mudaliar v. Muthuswami Aiyar 30 IndCas 481 is an exact parallel as is the case in Subbarayudu v. Subbanna : (1924)47MLJ765 . So also the case reported in Subbanna v. Subbarayudu (1925) 50 MLJ 125, where the law on the subject is treated at length. I respectfully agree with the observations in that case. On the face of this note it is clear to me that 2nd defendant has not unequivocally indicated that he is not personally liable. The necessity for such a clear, unequivocal indication is laid down by a Bench of three Judges in Koneti Naicker v. Gopala Aiyar : (1913)25MLJ425 .
5. It has been urged by the respondent that this contention of the appellant is a new point not urged until now and that, if the Court allows it, he ought to be given an opportunity to amend his plaint so as to hold the 1st defendant liable on the original debt since in the original plaint he has sued only on the promissory note. But I think the point was clearly raised in the only issue, framed:
From which of the defendants is the plaintiff entitled to recover the suit amount?
6. The frame of the note itself threw on the plaintiff the burden of showing that the 2nd defendant had unequivocally excluded his personal liability, if he wanted to prove, as from his plaint it is perfectly clear that he did want to prove, that the person liable was the 1st defendant. I can see no reason for allowing the amendment at this late stage. On the frame of the note I am clear that the plaintiff was content to have this debt satisfied by the 2nd defendant's personal promise and he cannot now be allowed to put forward a claim against the 1st defendant's estate which he abandoned when he took the note, and which will, if now put forward by a separate suit, be barred by time.
7. I refuse to interfere and dismiss this appeal with costs of 1st defendant.