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Children Thankammal Vayamkaramma and Ors. Vs. Mullatha Meenakshi Amma's Daughter Kunhamma and Ors. (06.11.1918 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1919)37MLJ369
AppellantChildren Thankammal Vayamkaramma and Ors.
RespondentMullatha Meenakshi Amma's Daughter Kunhamma and Ors.
Cases ReferredSarada Charan Chakravarthi v. Durgaram De Sinha I.L.R.
Excerpt:
- - , clearly bases his decision on the ground that the debt created by the promissory note itself ipso facto creates the obligation on the other members of the family under the hindu law and not that their obligation is created by any antecedent independent debt which existed before the promissory note was executed. nana menon air1915mad618 has been clearly explained by the learned chief justice who was a party to it in his judgment in nachiappa chetty v. kutti krishna menon for the petitioners (though i do not find it raised in the grounds of the revision petition) was that the suit was barred by limitation as against the other members of the tavazhi because the payment towards the principal and interest made by the 1st defendant and endorsed on the promissory note in her writing and..........on the promissory note and not also on the hindu law liability of the tavazhi for a promissory note debt incurred by its manager in respect of a family transaction within her powers. i might add that the decision in nachiappa chetty v. dakshnimurthi servai (1915) m.w.n. 217 a case decided after the decision of their lordships of the privy council in karimalli abdulla v. karimji jiwanji i.l.r. (1915) bom. 261 the learned chief justice has the following observation :--' this way of putting it does not take account of the decisions that where the debt and the promissory note came into existence at one and the same time the maker must be sued on the promissory note, and not on the original cause of action.' this observation indicates that in the opinion of my lord, the chief justice,.....
Judgment:

Sadasiva Aiyar, J.

1. Defendants 2, 3 and 4 are the petitioners in revision. They are junior members of a tavazhi, of which the 1st defendant was the manager. As such manager, she borrowed Rs. 100 in cash for tavazhi expenses and executed a promissory note in her own handwriting to the plaintiff on the 18th February 1914. A suit was brought against her and the other members of the tavazhi, the plaint alleging that the money was borrowed under the promissory note for the necessities of the tavazhi. The Subordinate Judge on the Small Cause side gave a decree against the 1st defendant and also against the other defendants to the extent of their interest in the tavazhi properties. Defendants 2 to 4 urge in their grounds of the revision petition (1) that under the ruling in Govinda Nair v. Nana Menon : AIR1915Mad618 the lower court erred in giving a decree against the Tavazhi as the suit was solely based on the promissory note (2) that the lower court has not found that the tavazhi had a necessity to borrow. (There are other grounds which raise questions of fact, which it is not usual in revision petitions to consider).

2. As regards the first point, there was a preliminary argument addressed on the question whether when a promissory note is executed for money borrowed at the time of the execution of the promissory note itself, the creditor can bring two separate suits or put forward two separate causes of action in the same suit on two independent heads of claim, namely, one based on the borrowing of the money the instant before the execution of the promissory note and the other on the promissory note itself. In Muthu Sastrigal v. Visvanatha Pandara Sannatht I.L.R. (1918) Mad. 660 see also the decision in Ammalu Ammal v. Namagiri Animal (1916) 33 M.L.J. 644. I expressed the opinion that having regard to Section 91 of the Indian Evidence Act, two distinct causes of action did not vest in such cases in the creditor. In Shummuganatha Chettiar v. Srinivasa Aiyar I.L.R. (1916) Mad. 727. Abdur Rahim, J., basing himself on the decision of the Privy council in Karimalli Abdulla v. Karimji Jiwanji I.L.R. (1915) Bom. 261 held that the creditor has the right to put forward the two claims independently of one another. With the greatest respect, I venture to think that their Lordships of the Privy Council were not considering this question in Karimali Abdulla v. Karimji Jiwanji (1915) I.L.R. 39 Bom. 261 but a different question, namely, whether other partners were liable on bills drawn by one of the partners for debts incurred by him in the carrying on the partnership business of purchasing brown sugar at Mauritius for shipment to and sale at Hongkong. Their Lorships say expressly at pages 274 and 275 that ' the Indian Contract Act' 'rules parties in this case' and the question was ' whether the transaction is or is not a partnership transaction' and that ' it is erroneous to treat the question as purely a question of liability on the bills ' just as it is erroneous in the present case to treat the suit as one solely on the promissory note and not also on the Hindu law liability of the tavazhi for a promissory note debt incurred by its manager in respect of a family transaction within her powers. I might add that the decision in Nachiappa Chetty v. Dakshnimurthi Servai (1915) M.W.N. 217 a case decided after the decision of their Lordships of the Privy Council in Karimalli Abdulla v. Karimji Jiwanji I.L.R. (1915) Bom. 261 the learned Chief Justice has the following observation :--' This way of putting it does not take account of the decisions that where the debt and the promissory note came into existence at one and the same time the maker must be sued on the promissory note, and not on the original cause of action.' This observation indicates that in the opinion of my Lord, the Chief Justice, there is only one cause of action, after the promissory note was executed (for a contemporaneous borrowing) on which a suit could be brought. I might also refer to the decisions of Coutts Trotter, J., in Ayyasami Pillaiv. Guruswami Naicker (1916) 3 L.W. 463 and of Ayling and Seshagiri Aiyar, JJ., in Nataraja Naicken v. Aiyaswami Pillai (1916) 32 M.L.J 354 which indicate that the claim based upon rules of the Hindu Law and made against persons other than the maker of the promissory note arises along with and as a result of the execution of the promissory note by the managing member. So also in the Full Bench decision in Krishna Ayya v. Krishnaswami Aiyar I.L.R. (1900) Mad. 597. Subrahmania Aiyar, J., clearly bases his decision on the ground that the debt created by the promissory note itself ipso facto creates the obligation on the other members of the family under the Hindu Law and not that their obligation is created by any antecedent independent debt which existed before the promissory note was executed.

3. Then the next question is whether the decision in Govindan Nair v. Nana Menon : AIR1915Mad618 precludes the Court from giving a decree against the other members of the tavazhi even if the debt has been incurred by the karnavan for purposes binding on the tavazhi. This decision in Govindan Nair v. Nana Menon : AIR1915Mad618 has been clearly explained by the learned Chief Justice who was a party to it in his judgment in Nachiappa Chetty v. Dakshinamurthi Servai (1915) M.W.N 217. He there points out that the decision in Govindan Nair v. Nana Menon : AIR1915Mad618 was based on the fact that the plaintiff in that case neither alleged in his plaint nor proved by his evidence facts indicating that, by the Marumakkathayam Law, the other members of the tavazhi were bound by the debt of the manager. On the other hand, the decision in the case in Nachiappa Chetty v. Dakshinamurthi Servai (1915) M.W.N. 217 and the decisions in Ayyaswami Pillai v. Guruswami Naicker (1916) 3 L.W. 468 and Nataraja Naicken v. Ayyaswami Pillai (1916) 32 M.L.J. 354 impose liability on the other members of the tarwad or the joint family on the promissory note executed by the karnavan or the manager (as the case may be) for proper debts.

4. The next point argued by Mr. Kutti Krishna Menon for the petitioners (though I do not find it raised in the grounds of the revision petition) was that the suit was barred by limitation as against the other members of the Tavazhi because the payment towards the principal and interest made by the 1st defendant and endorsed on the promissory note in her writing and over her signature does not purport to be made by her as manager of the tavazhi. I think that the matter is concluded by the Full Bench decision in Chinnayya v. Gurunathan I.L.R. (1882) Mad. 169 where it was held that the managing member has got a right to create debts and to make payment towards debts. Just as it is unnecessary that the document creating the original liability should purport to be signed by the executant as manager (see on this point the decision in Krishna Chettiar v. Nagamani Ammal I.L.R. (1915) Mad. 915 it is likewise unnecessary that the manager when making payments or signing endorsements, should expressly state that he or she pays or signs as manager. If the decision in Parakutty Amma v. Kunhi Krishnan Nair S.A. No. 395 of 1917 quoted by Mr. Kutti Krishna Menon holds otherwise, I regret (with great respect) that I am unable to follow it. That the authority to sign an acknowledgment under Section 19 of the Limitation Act need not be expressly given by the parties sought to be made liable and that the agency to sign can follow from the act of the Court or from rules of statutory or partnership law or the personal law of the defendant has been established by the case-law discussed fully in Lakshmana Chetty v. Sadayappa Chetty : (1918)35MLJ571 in the judgment of Abdur Rahim, J.

5. Then on the question that there is no finding by the Subordinate Judge that there was necessity to borrow, I think that his finding that the debt was contracted for purpose of Tavazhi is only another way of saying that it was for the necessary expenses of the tavazhi that the debt was incurred.

6. I would therefore dismiss the revision petition with costs.

Spencer, J.

7. On the pleadings in the Small Cause suit, I am of opinion that the suit was based on the liability for the debt as evidenced by the promissory note of 18th February 1914 signed by 1st defendant, the manager of the defendant's tavazhi.

8. Paragraph 5 of the plaint and paragraph 2 of the written statement raised the question whether the debt was contracted for the necessity of the members of the tavazhi and the Subordinate Judge has decided the issue arising out of this question in the plaintiff's favour.

9. The petitioners' vakil relies on the decisions in Govindan Nair v. Nana Menon : AIR1915Mad618 in support of his contention that the defendant's tavazhi is not liable. That suit was based solely upon the promissory note and not upon the original cause of action. It is expressly so stated in the judgment. I would distinguish that case from the present upon that ground. In Nachiappa Chetty v. Dakshnimurthi Servai (1915) M.W.N. 217 the learned Chief Justice in following the decision in Krishna Aiyar v. Krishnaswami Aiyar I.L.R. (1900) Mad. 597 found no difficulty in so distinguishing the decision in Govindan Nair v. Nana Menon : AIR1915Mad618 to which he was a party.

10. The decision of Coutts Trotter, J., in Ayyaswami Pillai v. Guruswami Naicken (1916) 3 L.W. 463 and the decision of a Bench in Nataraja Naicken v. Ayyaswami Pillai (1816) 32 M.L.J. 354 in which his decision was confirmed are exactly to the point on the question raised in this Civil Revision Petition. The cases of partnership which have been quoted in the arguments have not, to my mind, much bearing upon this point as liabilities of partners are governed not by Hindu Law but by Sections 249 and 251 of the Indian Contract Act.

11. On the question whether the 1st defendant's payment of Rs. 23 on the 17th February 1917 which was certified over her signature had the effect of extending the limitation as against the other defendants. I think that the decision in Chinnayya v. Gurunathan I.L.R. (1882) Mad. 169 and that in Sarada Charan Chakravarthi v. Durgaram De Sinha I.L.R. (1910) Cal 37 are conclusive as showing that a manager can acknowledge liability of the members of the family which he or she represents so as to extend the period of limitation against them as well as against himself or herself.

12. I agree with my learned brother in holding that the Civil revision petition shall be dismissed with costs.


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