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Balavenkatrama Chettiar and ors. Vs. Maruthamuthu Chetty and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad313; (1940)2MLJ946
AppellantBalavenkatrama Chettiar and ors.
RespondentMaruthamuthu Chetty and anr.
Cases ReferredBulaqi Das v. Lal Chand A.I.R.
Excerpt:
- .....the appellants ought to have been made liable in the capacity of trustees in which case only the trust property in their hands could be held liable but they are sought to be made liable in their individual capacity which has the result of affecting their individual person and their individual property. as aforesaid, by the appeals they seek to get rid of their liability to the extent of both their person and property in respect of the amount that has been decreed against them. the contention therefore that the subject-matter is incapable of valuation is unsustainable.4. mr. viswanatha aiyar relied very strongly on section 28 of the negotiable instruments act which is to the following effect:an agent who signs his name to a promissory note without indicating thereon, that he signs as.....
Judgment:

Venkataramana Rao, J.

1. The question for decision in this reference is, what is the correct court-fee payable on the three memoranda of second appeals preferred against the decrees of the learaaed District Judge of Coimbatore in A.S. Nos. 290 and 291 of 1937 and 174 of 1938? The suits out of which these second appeals arise were brought on three promissory notes. The main defence was that the appellants were not liable on the notes as the amounts were borrowed for the benefit of Kannika Parameswari Amman Temple of Peria Nagamam by them as trustees thereof and that a decree ought to be passed against the properties of the said temple in their hands. The decision of the learned District Judge was that two of the promissory notes purported to be executed by them in their individual capacity and not as trustees on behalf of the said temple and though there was a reference to the trust in the body of the third promissory note, the executants did not sign the said note as trustees and therefore they were personally liable on all the three notes. The, legal effect of this decision of the learned Judge is that the executants are not only liable to be arrested in execution of the decrees against them but also the properties they own and possess are liable to be proceeded against for the satisfaction of the said decrees. Thus they seek to get r d of their liability against their person and property to the extent of the amount that has been decreed against them. On these facts the learned Master took the view that an ad valorem court-fee has to be paid on the value mentioned in the memoranda of appeals, that is, the amount of the decrees which have been passed against them.

2. It is contended by Mr. Viswanatha Aiyar, the learned Counsel for the appellants, that the subject-matter of the appeals is incapable of valuation and that the correct court-fee has been paid1 under Article 17-B of Schedule II of the Court-Fees Act. He submits that he was not bound to pay the ad valorem court-fee because the appellants were not disputing the amount of liability but were only contending that they were not personally liable. He relied on Jagannath v. Laxmi Bai I.L.R. (1934) Bom. 439 and Bulaqi Das v. Lal Chand A.I.R. 1934 Lah. 865 in support of his contention. Article 17-B of the Second Schedule to the Court-Fees Act runs thus:

Plaint or memorandum of appeal in every suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by this Act.

3. The question therefore is, is it not possible to estimate at a money value the subject-matter in dispute in these appeals? Before a subject-matter in dispute can be said to be incapable of valuation, it must be established that it is not even possible to state approximately what would be the money value of the liability which a person seeks to get rid of by the judicial decision, that is, by no possibility could it be stated approximately what would be the money value of the detriment that a person may suffer by reason of the adverse decision against him. What is really contended for in these appeals is that the appellants ought to have been made liable in the capacity of trustees in which case only the trust property in their hands could be held liable but they are sought to be made liable in their individual capacity which has the result of affecting their individual person and their individual property. As aforesaid, by the appeals they seek to get rid of their liability to the extent of both their person and property in respect of the amount that has been decreed against them. The contention therefore that the subject-matter is incapable of valuation is unsustainable.

4. Mr. Viswanatha Aiyar relied very strongly on Section 28 of the Negotiable Instruments Act which is to the following effect:

An agent who signs his name to a promissory note without indicating thereon, that he signs as agent, or that he does not intend thereby to incur personal responsibility, is liable personally on the instrument, except to those who induced him to sign upon the belief that the principal only would be held liable.

5. He contends that one of the defences of the appellants was that the plaintiff was aware of the fact that the borrowing was made on behalf of the trust, that they were induced to sign the promissory notes in the belief that the temple only would be held liable and that if this defence is upheld in their favour, it would result in the passing of a decree against the trust property and not against them personally and what they are now seeking to do in these appeals is only to get rid of their personal liability. This contention does not appear to me to be sound. If the defence which they have raised is upheld, it would involve the dismissal of the appeal and not the passing of a decree against the trust property in their hands. Even assuming that a decree could be passed against the trust property in their hand the decree in so far as it negatives their personal liability in that their person and personal property will not be proceeded against is a decree which will be passed in their favour not as trustees but in a different capacity and therefore it cannot be said that it is incapable of valuation. If the appellants had been sued as trustees and a decree had been passed against them personally and also against the trust property in their, hands and an appeal was preferred against the said decree on the ground that they could not be rendered liable personally in the sense that they could not be arrested in execution of the decree it may be urged that it is not possible to estimate the liability they are seeking to get rid of. But the case here is different and I do not propose to examine the soundness of this view. Both the cases on which Mr. Viswanatha Aiyar relied are distinguishable on the facts of those cases and it is not necessary to canvass the correctness or otherwise of those decisions. In Jagannath v. Laxmi Bai I.L.R. (1934) Bom. 439, a decree was passed against the defendant personally though he was sued as the heir of the original debtor. The defendant did not dispute the liability of the property which came into his hands after the death of the debtor but contended that he was not liable to be proceeded against in tile sense that he could not be arrested in execution of the said a decree nor the property which he owned and possessed, apart from the property which he inherited from the debtor, is liable to be proceeded against. Murphy, O.C.J., took, the view that as the assets in that case were sufficient to enable the decree-holder, to recover the full amount due, it was not possible to estimate the money value of the liability which would remain after the exhaustion of the decree-holder's remedy against the said assets. This case therefore is distinguishable from the present appeals. Bulaqi Das v. Lal Chand A.I.R. 1934 Lah. 865 is also a similar case where a person admitted his liability in respect of his share in the joint family property but disputed the personal liability in respect thereof.

6. The view of the learned Master that the appellants should pay ad valorem court-fee is sound and I therefore confirm his decision. Time, six weeks for payment of court-fee from today.


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