A.S. No. 80 of 1917.
1. At the hearing of this appeal, two con-tentions were raised:
1. that the Varthamanam or guarantee (Exhibit M) alleged to have been written by 5th defendant's husband Audinarayana Pillai was not genuine;
2. that owing to the nature of the transaction which Exhibit M evidences, 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 Vartha-manam was sent to him and. he did not repudiate his liability, tells strongly against (be 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 1st 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.
5. Verses 53 and 54 of Yajnavalkya run as follows:
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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 surely for appearance or a surety by assurance dies, the sons of such a one must not pay; (but) in the case of a surety for payment, they should pay.
6. It is argued that the 5th defendant was under Exhibit M a surety for assurance (mpratyaye) and not for payment dane) 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 com-menting upon the above verses, the surety by way of assurance consists of a general warranty of credit, but a surety for payment is one who says: 'If he does hot pay, then I myself will pay.' The distinction between these two classes of sureties is farther explained in Colebrook's Digest, Volume 1, page 164, and that has been discussed fully by Ranade, J., in Tukarambhat v. Gangasam Mulchand Gujar 12 Ind. Dec. 301. In Rasik Lal Mandal v. Singhaswar Roy 16 C.L.J. 107 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.
7. 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 2 months from this date. In default of payment as aforesaid by the slid person within the said time, I shall pay the amount of principal and interest on the said promissory note and get back the said promissory note and the surety bond and the title-deeds.'
8. 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 clause of suretyship, that for payment (dane), and it makes no difference that the money had already been lent to the debtor when the surety executed the bond.
9. Defendants Nos. 5 and 9 are, therefore, liable to pay out of the family assets in their hands.
10. The appeal is dismissed with costs of plaintiff and 8th defendant (two sets).
A.S. No. 155 of 1917.
11. We agree with the Subordinate Judge 'that Exhibit C covered past as well as future advances. The participle used, as the Subordinate Judge has observed, is without time and is equally applicable to past as well as future borrowings. The fact that a deposit of title-deeds had been taken at the time of the earliest advance of Rs. 2,000 under Exhibit A, shows that it could not have been the intention of the parties to exclude under Exhibit 0 the money already borrowed on the security.
12. As regards the other points, we agree with the Subordinate Judge that the sum of Rs. 3,000 was intended to apply to advances of principal and that the property mortgaged was made security under the terms of the document not only for the principal sums not exceeding Rs. 3,000 in all but also for the interest thereon. The appeal is dismissed with costs.