1. In Appeal No. 80 of 1917 at the hearing of this appeal, two contentions were raised:
(1) that the varthamanam or guarantee (Exhibit M) alleged to have been written by fifth defendant's husband Audinarayana Pillai was not genuine:
(2) that owing to the nature of the transaction which Exhibit M evidenced, the heirs of the guarantor are not liable under Hindu Law.
2. On the first point, we do not find the least reason to doubt the correctness of the learned Subordinate Judge's finding of fact. The circumstance that, during Audinarayana's lifetime a notice of demand setting out his liability under the varthamanam was sent to him and he did not repudiate his liability, tells strongly against the present theory that it is a forgery. It was again mentioned in the subsequent promissory note (Exhibit Q) in a sentence which may have been written after the stamp was affixed but not necessarily after Audinarayana had signed across the stamp.
3. The attempts made to prove an alibi for the first defendant on the day when Exhibit M was executed by means of certain post cards do not in our opinion in the least detract from the genuineness of that document.
4. The determination of the second point depends upon the application to the facts of this case of the Hindu Law as to the liability of sons of persons who have stood sureties for others. Verses 53 and 54 of Yajnavalkya run as follows.
which are translated by Mr. Gharpure in his collections of Hindu Law texts thus:
Suretyship is ordained for appearance, assurance and for payment. The first two, however, should be made to pay in case of default while in the case of the last even the sons (should be made to pay). Where a surety for appearance or a surety by assurance dies, the sons of such a one must noli pay (but) in the case of a surety for payment, they should pay.
5. It is argued that the fifth defendant was under Exhibit M a surety for assurance (pratyaye) not for payment (dana) and that the fact that the money had already been lent to the debtor when the surety bond was executed is an indication of this. According to the illustration given in the Mitakshara when commenting upon the above verses, the suretyship by way of assurance consists of a general warranty of credit, but a surety for payment is one who says: 'If he does not pay, then I myself will pay.' The distinction between these two classes of sureties is further explained in Colebroke's Digest, volume I, page 164, and has been discussed fully by Ranade, J., in Tukaram Bhat v. Gangaram I.L.R. (1899) Bom. 454. In Rasik Lal Mandal v. Singheswar Rai I.L.R. (1912) Cal 843 it was held that a surety obligation for payment was binding on the son even where the creditor's claim against the principal debtor did not arise out of a loan from the creditor to the debtor.
6. In Exhibit M, the promise which Audinarayana Pillai made was in these words:
I shall make the said Veera Pillai pay the amount due under the said promissory note within two months from this date. In default of payment as aforesaid by the said person within the said time, I shall pay the amount of principal and interest due on the said promissory note and get back the said promissory note and the surety bond and the title-deeds.
7. There could hardly be a more definite promise to pay, if the debtor failed to pay, than this, and therefore this falls under the third class of suretyship, that for payment (dana), and it makes no difference that the money had already been lent to the debtor when the surety executed the bond.
8. Defendants Nos. 5 and 9 are therefore liable to pay out of the family assets in their hands.
9. The appeal is dismissed with costs of plaintiff and eighth defendant (two sets).