Alfred Henry Lionel Leach, C.J.
1. This appeal has been placed before a Full Bench of five judges as its decision calls for the settlement of a conflict which exists in the decisions of Koneti Naicker v. Gopala Aiyar : (1913)25MLJ425 and Satyanarayana v. Mallayya (1934) 68 M.L.J. 540 : I.L.R. 58 Mad. 735 each of which was decided by a Full Bench of three Judges of this Court. Stated broadly the question is whether the Court can look into the surrounding circumstances when deciding whether the maker' of a promissory note has executed it as the agent or the representative of another. In Koneti Naicker v. Gopala Aiyar : (1913)25MLJ425 , the Court held that the surrounding circumstances could not be inquired into. The question of liability could only be decided on the reading of the instrument. In Satyanarayana v. Mallayya (1934) 68 M.L.J. 540 : I.L.R. 58 Mad. 735 , it was, however, said that one could look at all the surrounding circumstances in inferring the intention of the maker.
2. The appeal arises out of a suit filed by the appellant to recover the amount due on a promissory note of which he was the holder. The promissory note was executed by the second respondent, who is the husband of the first respondent. The first respondent had granted her husband a power-of-attorney, and it has been suggested on behalf of the first respondent that this power did not give him authority to execute a negotiable instrument on her behalf. The question of authority has been investigated by the Courts below and they have agreed that the second respondent was duly authorised to execute promissory notes on his wife's behalf. The promissory note in suit was a renewal of a previous promissory note, and the Subordinate Judge of Cuddalore who tried the suit and the District Judge of South Arcot on first appeal both held that the earlier promissory note was executed by the husband with the knowledge and at the instance of his wife. The husband was empowered under the power-of-attorney to discharge his wife's debts, and we concur in the finding, as Venkataramana Rao, J., did in his Order of Reference, that the husband had authority to execute the promissory note in suit as the agent of his wife. The promissory note in suit reads as follows:
Promissory note executed on the 24th November, 1932, in favour of Sivagurunatham Pillai, son of Ramanujam Pillai, residing in Thunisaramedu village, Chidambaram taluk, by me Srinivasam Pillai, son of Velayudham Pillai, the husband and agent under power-of-attorney of Padmavathi Ammal, daughter of Kuppusami Pillai, residing in Gunamangalam village, Chidambaram Taluk:
As you have obtained an assignment on 1st January, 1930, of the promissory note executed by me on 11th December, 1929, for Rs. 3000 (Rupees three thousand) in favour of Therku Virudangan Ananta Pillai's son, Ramaswami Pillai, in respect of the debt due by Shanmugasundaram Pillai, my wife's junior paternal uncle, the amount of principal and interest due on the said promissory note is Rs. 3797-4-0 (Rupees three thousand seven hundred and ninety seven and annas four). As I have received this sum in manner stated above, I shall pay interest on the said sum at 15 annas percent per mensem from this day and pay you, or your order, on demand, the aggregate principal and interest and take back this document after endorsement of payment made thereon.
V. Srinivasa Pillai.
3. It will be observed that while the signature of the maker is not followed by any words indicating the capacity in which he signed, in the first paragraph of the note he is described as the husband and agent under the power-of-attorney of his wife. The wife denied that her husband executed this promissory note as her agent and the husband maintained that he had. Holding that the husband had authority to sign for his wife and had executed this promissory note as her agent, the Subordinate Judge granted the appellant, who is the payee of the promissory note, a decree for the amount claimed. The District Judge, while concurring in the finding of the Subordinate Judge that the husband had authority from his wife to execute the promissory note and had in fact executed it as her agent, held that as the wording of the instrument did not exclude the husband's personal liability he was liable. Accordingly he granted a decree against the husband and dismissed the suit against the wife. The decree-holder has appealed and he asks for the restoration of the decree of the trial Court.
4. Before examining the judgments in Koneti Naicker v. Gopala Aiyar : (1913)25MLJ425 and Satyanarayana v. Mallayya (1934) 68 M.L.J. 540 : I.L.R. 58 Mad. 735 , I propose to state the relevant provisions of the Bills of Exchange Act, 1882 and the Negotiable Instruments Act, 1881, because the provisions of the two Acts with regard to the execution of a negotiable instrument by an agent are not the same, and English decisions may not always be in point. Section 23 of the Bills of Exchange Act is in these words:
No person is liable as drawer, indorser, or acceptor, of a bill who has not signed it as such; Provided that:
(i) where a person signs a bill in a trade or assumed name, he is liable as if he had signed it in his own name.
(ii) The signature of the name of a firm is equivalent to the signature by the person so signing of the names of all persons liable as partners in that firm.
5. Section 26 reads as follows:
Where a person signs a bill as drawer, indorser, or acceptor, and adds words to his signature, indicating that he signs for or on behalf of a principal, or in a representative character, he is not personally liable thereon; but the mere addition to his signature of words describing him as an agent, or as filling a representative character, does not exempt him from personal liability.
6. The corresponding sections of the Negotiable Instruments Act are Sections 27 and 28 respectively and they read as follows:
27. Every person capable of binding himself or of being bound, as mentioned in Section 26, may so bind himself or be bound by a duly authorized agent acting in his name.
A general authority to transact business and to receive and discharge debts does not confer upon an agent the power of accepting or indorsing bills of exchange so as to bind his principal.
An authority to draw bills of exchange does not of itself import an authority to indorse.
28. An agent who signs his name to a promissory note, bill of exchange or cheque 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.
7. Under the English Act, if an agent is to escape liability as a drawer, indorser or acceptor he should add words to his signature indicating that he is signing for and on behalf of his principal. Of course if in the body of the instrument the maker expressly excludes his personal liability this would have the same effect as the adding of suitable words to his signature, but in England negotiable instruments are not usually drawn in this way. Under the Indian Act there is more latitude in the matter of construction. The question is not whether there has been express exclusion of personal liability, but whether on a fair construction of the instrument as a whole the exclusion of personal liability can be inferred. The importance which Section 26 of the English Act attaches to words of exclusion following the signature was not a feature of the decisions in England before the passing of the Bills of Exchange Act in 1882. What was insisted upon was that on the face of the instrument the maker should clearly indicate that he was signing for another, otherwise he would be liable personally. In Leadbitter v. Farrow (1816) 5 M.S.334 : 105 E.R. 1077, Lord Ellenborough, C.J., said:
Is it not an universal rule that a man who puts his name to a bill of exchange thereby makes himself personally liable, unless he states upon the face of the bill that he subscribes it for another, or by procuration of another, which are words of exclusion? Unless he says plainly 'I am the mere scribe', he becomes liable....Every person, it is to be presumed, who takes a bill of the drawer, expects that his responsibility is to be pledged to its being accepted. Giving full effect to the circumstance that the plaintiff knew the defendant to be agent, still the defendant is liable like any other drawer who puts his name to a bill without denoting that he does it in the character of procurator. The defendant has not so done, and, therefore, has made himself liable.
8. When Lindus v. Melrose (1858) 3 H.N. 178 : 157 E.R. 434 was before the Court of Exchequer, Pollock, C.B., did say (1857) 2 H N. 296 : 157 E.R. 123
On reading the instrument as I have suggested, and looking to the surrounding circumstances, 1 entertain not the slightest doubt that in fact it was intended as the note of the Company.
9. But there is no indication that the surrounding circumstances were used to add to the instrument and when the case was before the Exchequer Chamber on appeal it is obvious that it was decided merely on an examination of the words of the note.
10. It has been argued that Elliott v. Bax-Ironside (1925) 2 K.B. 301, 'is direct authority for the proposition that the Court may look beyond the document and examine the surrounding circumstances when deciding whether personal liability has been excluded by the maker of a negotiable instrument such as we have here, but an examination of the judgments shows that they do not render support for the argument. A bill of exchange was accepted in the following form:
Accepted payable at the Westminster Bank Ltd., Piccadilly Branch, H, C., Bax-Ironside, Ronald A. Mason, directors, Fashions Fair Exhibition Ltd.
11. When the drawer sent the bill to the Company for acceptance he wrote saying that as a condition of his doing the work for which the bill was drawn he should require it to be indorsed by the directors as well as accepted by the Company. As the result of this letter the two directors indorsed the bill as follows: 'Fashions Fair Exhibition Ltd., A. B. and C. D. directors', and one of them when returning the accepted bill drew attention in his letter to the fact that it was duly indorsed by two directors of the Company as had been requested. Bankes and Scrutton, L. JJ., were of the opinion that the Court was entitled to look at the surrounding circumstances under which the bill was signed, including the letters which passed between the parties on the subject of the indorsement, from which it was to be inferred that the defendants by indorsing intended to guarantee the payment of the bill. Sargent, L.J., agreed in holding that the directors were liable, but he preferred to base his judgment merely on the contents of the particular bill.
12. In holding that the surrounding circumstances might be looked into Bankes and Scrutton, L.JJ., placed reliance on Macdonald v. Whitfield (1883) 8 A.C. 733 and Macdonald & Co. v. Nash & Co. (1924) 2 A.C. 625 Macdonald v. Whitfield (1883) 8 A.C. 733 was an appeal to the Privy Council from Canada, and in delivering the judgment of the Board Lord Watson observed:
But it is a well established rule of law that the whole facts and circumstances attendant upon the making, issue, and transference of a bill or note may be legitimately referred to for the purpose of ascertaining the true relation to each other of the parties who put their signatures upon it, either as makers or as indorsers; and that reasonable inferences, derived from these facts and circumstances, are admitted to the effect of qualifying, altering, or even inverting the relative liabilities which the law merchant would otherwise assign to them.
13. These remarks are confined to the parties who put their signatures upon the instrument. In that case the directors of a Company agreed with each other to become sureties to the bank for the same debts of the Company and as the result of this agreement successively indorsed three promissory notes to the Company. It was held that they were entitled and liable to equal contribution inter se. The rule stated by Lord Watson-in that case obviously does not apply in the present case. The appellant has not signed the promissory note, he is merely the payee and the question is whether the maker or a third party, whose signature does not appear on the instrument, is liable.
14. In Macdonald & Co. v. Nash & Co. (1924) 2 A.C. 625 the position was this. The appellants sold 19,000 cases of tinned soup, but as the buyers were unable to find the money they applied for financial assistance to the respondents, who undertook as between themselves and the buyers to find 75 per cent. of the purchase price. The appellants, the respondents and the buyers then agreed that the respondents should indorse a series of eight bills of exchange, seven for 1,000 each and one for . 117 odd, to be drawn by the appellants on the buyers, payable six months after date to the appellants' order, and that the appellants, in consideration of the bills being duly indorsed by the respondents, should hand to the respondents delivery orders for the balance of the cases, ' some 3,000 cases having been taken up by the buyers. The bills were drawn by the appellants on the buyers, expressed to be payable to the appellants' order, and were accepted by the buyers and indorsed by the respondents. Room was left above the name of the respondents for the indorsement of the name of any person to whom the appellants should direct payment. The respondents then handed the bills to the appellants in exchange for the delivery orders. One bill was discharged, but before the. remaining bills became due the appellants indorsed their name as payee above the respondents' signature. On presentation to the buyers these bills were dishonoured and the appellants claimed payment from the respondents, who denied liability. Thereupon the appellants sued the respondents as indorsers. It was held that the respondents must be taken to have intended to make themselves liable to the appellants on the bills and that the appellants had implied authority to fill in their own name as payee.
15. The decision in Macdonald & Co. v. Nash & Co. (1924) 2 AC. 625 does not go beyond the rule stated by Lord Watson in Macdonald v. Whitfield (1883) 8 A.C 733 and I consider that Elliott v. Bax-Ironside (1925) 2 K.B. 301 goes no further. In my judgment the English decisions lend no support for the suggestion that in a case like the one now before us the Court can travel beyond the instrument in order to decide whether a person has signed as the agent of another. So far as the Courts in India are concerned the question is really governed by the decision of the Privy Council in Sadsuk Janki Das v. Sir Kishan Pershad (1918) 36 M.L.J. 429 : L.R. 46 IndAp 33 : I.L.R. 46 Cal. 663 In that case certain hundis had been drawn by one Mohan Lal, who had been employed by Maharaja Sir Kishan Pershad, as the superintendent of his private treasury. The hundis were in this form:
By order of Sirkar, may his happiness increase,
Mohan Lal, son of Hira Lal,
Six months from the date of the execution of this hundi, please pay to Seth Sadsuk Janki Das Sahu of the Residency Bazaars or to his order the sum of H.S. Rs. 2,500 (half of which is Rs. 1,250) which sum I have received in cash in the Residency Bazaars from the said Seth Sahib.
Dated 3rd Rabi-us-sani, 1328-H (14th April, 1910)
Mohan Lal (In Urdu)Acting Superintendent of the PrivateTreasury of His Excellency Sir Maharajah, the Prime Minister of H.H. the Nizam. (on the back)This hundi has been accepted by Mohan Lal, son of Hira Lal, in favour of Seth Sadsuk Janki Das, inhabitant of the Residency Bazaars, Hyderabad. Dated 3rd Rabi-us-sani, 1328 Hijiri, Mohan Lal (In Urdu).
16. The question was whether Mohan Lal or the Maharaja was liable. The Privy Council held that the liability rested with Mohan Lal and not with the Maharaja. In delivering the judgment of the Board, Lord Buckmaster said:
It is of the utmost importance that the name of a person or firm to be charged upon a negotiable document should be clearly stated on the face or on the back of the document, so that the responsibility is made plain and can be instantly recognised as the document passes from hand to hand. In this case the preliminary words mention no more than that Mohan Lal has been directed to execute the hundis, and they do not necessarily imply that he has been clothed with authority to execute them in any other form than that in which they were actually prepared--a form which it has already been shown constituted nothing more than a personal liability on behalf of Mohan Lal.
17. After referring to Sections 26, 27 and 28 of the Negotiable Instruments Act, the judgment proceeds:
It is sufficient to say that these sections contain nothing inconsistent with the principles already enunciated, and nothing to support the contention, which is contrary to all established rules, that in an action on a bill of exchange or promissory note against a person whose name properly appears as party to the instrument, it is open either by way of claim or defence to show that the signatory was in reality acting for an undisclosed principal.
18. There can be nothing plainer than this judgment. It is the instrument and the instrument alone which has to be looked at in deciding whether the maker has excluded personal liability in such a case. Therefore in turning to examine the decisions of this Court in Koneti Naicker v. Gopala Aiyar : (1913)25MLJ425 and Satyanarayana v. Mallayya (1934) 68 M.L.J. 540 : I.L.R. 58 Mad. 735 we have this factor well established. Of course, if the authority of the agent is questioned the authority must be established before the instrument is looked at.
19. The case of Koneti Naicker v. Gopala Aiyar : (1913)25MLJ425 , was decided by White, C.J., and Ayling and Oldfield, JJ. It was heard by three Judges as Sundara Aiyar and Sadasiva Aiyar, JJ., who had heard it in the first instance had disagreed. It has been suggested that the judgment of Sundara Aiyar, J., amounts to an assertion that the surrounding circumstances may be. taken into consideration in a case like the present one, but when his judgment is examined it is clear that he was not stating any such proposition. The real conflict between him and Sadasiva Aiyar, J., was that he considered that the promissory note itself indicated that it had been signed by the maker as an agent, while Sadasiva Aiyar, J., took the opposite view. The promissory note read as follows:
12th August, 1907 corresponding to 28th Audi, Plavanga. Promissory note executed to you both, (1) Gopala Aiyar and (2) Nagaswami Aiyar, sons of Soothi Seshaiyer residing in No. 1, Police Station Lane, Madura Town, by R. P. Koneti Nayudu Garu, son of Nanjundappa Naidu Garu agent holding power-of-attorney from the Zarnindar Dorai Rajah Avergal and residing in Vellikurichi village, Manamadura Taluk, Madura District.
Amount due to you including principal and interest up-to-date upon settlement of account of dealings which was standing against the name of Rani Chekkani Ammal on cloths, etc., having been purchased ere this for the Vellikurichi palace is Rs. 694-6-0. On demand, I promise to pay this sum of Rupees Six hundred and ninetyfour and annas six with interest at Rs. 5-8-0 per cent. per mensem from this date either to you or order and shall take this back with the endorsement of payment thereon.
(Signed) R. P. Koneti Nayudu.
20. It will be observed that after stating that he is the son of Nanjundappa Naidu the maker of the note adds he is the 'agent, holding power-of-attorney from the Zamindar Dorai Rajah Avergal.' The note has very much in common with the note now in suit. The question there was whether R. P. Koneti Naidu was personally liable or whether he had executed the promissory note as the agent of the Zamindar. Sundara Aiyar, J., considered that the promissory note should be construed as an instrument made by R. P. Koneti Naidu as the agent of the Zamindar and his reasons may be gathered from the following passage in his judgment: (23 M.L.J. 417 ):
The question is, has or has not the third defendant indicated on the note that he does not intend to incur personal responsibility for the debt? He has described himself as the agent of the first defendant holding a power-of-attorney from him. He has described the debt as one binding on the first defendant and incurred by the first defendant's mother. In instruments executed by the people of this country, it is, in my opinion, very uncommon for the executant to describe himself as agent of another, unless the contract is entered into by him as an agent. In this case, the justification for his acting as an agent is also referred to, namely, that he holds a power-of-attorney from the first defendant. The question whether the third defendant executed the document as agent and whether he has indicated that he did not intend to be personally responsible for the amount of the note is one of construction. In construing the instrument, I think it is proper and necessary to put oneself in the position of the executant, and to take into consideration the habits of the people of this country in the matter of conveyancing. These habits may not be the same as those of people in England or elsewhere, and the construction to be put on an instrument executed by a Hindu here should not necessarily be made to depend on the construction of a similarly worded instrument executed by an Englishman.
21. Later in the judgment Sundara Aiyar, J., said:
Of course, an agent might contract to be personally liable, and it would be open to the payee to prove such an agreement. But, apart from such agreement, I think that in this country, the description itself should be taken to be an indication that the executant should not be personally liable.
22. Sundara Ajyar, J., also said that if it was open to the maker to prove that he was only a benamidar for a third person, he saw no reason why he should not be entitled to show that he was only an agent for another, but he went on to add that, perhaps Section 28 of the Negotiable Instruments Act would not allow of this and therefore his decision must be taken to have been given on the reading of the promissory note, bearing in mind the manner of expression the maker would ordinarily use.
23. Sadasiva Aiyar, J., considered that the maker of a negotiable instrument would be personally liable unless in signing he indicated that he was signing as an agent or had expressly excluded his personal liability in the body of the note. He observed:
Why should a holder of a negotiable instrument be driven to make inquiries whether a man who puts his unequivocal signature to it is really an agent of some other person as he described himself in the body or whether he had authority to bind that principal? The very object of the law merchant might be defeated if, when the executant does not choose expressly to repudiate his own personal liability to the holder (whoever he may be) according to the law merchant, he should be allowed to spell out an implied non-liability on his part by involved arguments and by appeals to the negligent practices of people in the mofussil.
24. All the members of the Full Bench read the promissory note in the way it was read by Sadasiva Aiyar, J., although Ayling, J., observed that the question was not free from doubt. White, C.J., said that he did not attach importance to the variation of the language between Section 26 of the Bills of Exchange Act and Section 28 of the Negotiable Instruments Act because the legislature intended in both enactments to reproduce the English Common Law, though the language used for the purpose of carrying out their intention was different. As I have already indicated I do not agree that the effect of Section 26 of the English Act is precisely the same as that of Section 28 of the Negotiable Instruments Act, and before us learned Counsel have accepted that there is a difference.
25. In Satyanarayana v. Mallayya (1934) 68 M.L.J. 540 : I.L.R. 58 Mad. 735 the facts were these. A promissory note was executed by the mother, who was also the guardian of the minor members of a Hindu joint family, without adding any words of qualification to her signature, but in the body of the note the minors were described as the makers 'represented by their mother and guardian, Venkayamma'. The promissory note was in renewal of an earlier promissory note made by the mother as guardian of the minors and this note was in renewal of a promissory note which had been executed by the father. The judgment of the Court was delivered by Ramesam, J., who stated without any qualification that one must look at all the surrounding circumstances in inferring the intention of the maker. The Courts held that the minors' estate was liable on the promissory note and in arriving at this decision took into consideration the surrounding circumstances. This course cannot be supported. With great respect the Court was wrong in looking at the surrounding circumstances when deciding whether the mother as the maker of the promissory note had excluded her personal liability.
26. As the Court cannot look beyond what is stated in the instrument in a case like the present one it is now necessary to decide whether the promissory note in suit should be construed in accordance with the judgment of Sundara Aiyar, J., or the judgments of Sadasiva Aiyar, J., and White, C.J. In my opinion the judgment which should be followed is that of Sundara Aiyar, J. It is the duty of the Court to read the instrument and judge its effects from the words used, but a promissory note drawn up in a vernacular language cannot always be construed according to the literal translation into English. While I have no knowledge of the Dravidian languages, I have seen sufficient of the translations of vernacular documents which have come before this Court to realize that to give a fair translation words in English have often to be added, and both my learned brothers Somayya and Patanjali Sastri, JJ., inform me that a Tamilian who wished to indicate that he was signing on behalf of his principal might aptly use the language found in the promissory note in suit and that a Tamilian would read it as an instrument signed by the maker on behalf of his principal. I do not suggest that a document in Tamil or any-other language spoken in India should not be given the meaning which the words used ordinarily imply, but in deciding their implication I agree with Sundara Aiyar, J., that one must put oneself in the position of the writer so far as the language used is concerned. In this country when a person is describing who he is he gives his father's name and says that he is his son. When in a document such as we have here the person after giving his own description adds that he is the agent of another it means that he is acting as the other's agent in the matter of the execution of the document.
27. In this case I consider that it is beyond reasonable doubt that when the second respondent added to the statement that he was the son of Velayudham Pillai the statement that he was the husband and agent under power-of-attorney of the first respondent he implied that he was executing the document in his capacity as her agent. The matter does not, however, rest there. The body of the instrument shows that the note was executed in renewal of a previous promissory note executed in respect of a debt owed by the first respondent's junior paternal uncle Shanmugasundaram Pillai, and this gives an indication of the reason why the second respondent was called upon to act on behalf of his wife. She was lending aid to a relation of hers. On a fair construction of the document bearing in mind that it was written in Tamil by a person who would express agency in this way I hold that the second respondent signed it as his wife's agent.
28. Mr. Venkatesa Aiyar on behalf of the first respondent stated in the course of his argument that if the word 'as' preceded the words 'the husband and agent under power-of-attorney of Padmavathi Ammal' it would be a fair construction of the document to say that the maker intended to exclude his own personal liability. I do not see what difference the absence of the word 'as' makes, because the insertion of the words 'husband and agent under power-of-attorney of Padmavathi Ammal'. would be entirely unnecessary unless the intention was to indicate that the second respondent was signing the document as the agent of his wife.
29. I would sum up the position thus. In Satyanarayana v. Mallayya (1934) 68 M.L.J. 540 : I.L.R. 58 Mad. 735 the Court erred in saying that circumstances not disclosed in the instrument could be looked at when deciding whether the maker was personally liable and the learned Judges who decided Koneti Naicker v. Gopala Aiyar : (1913)25MLJ425 , erred in refusing to follow the line of approach indicated by Sundara Aiyar, J. When it is a matter of construing the effect of an instrument written in Tamil or in any other Indian language, the observations of Sundara Aiyar, J., apply.
30. It follows from what I have said that I consider that the Subordinate Judge was right, and I would allow the appeal with costs here and below.
31. I agree. As I was a member, of the Full Bench which decided Satyanarayana v. Mallayya (1934) 68 M.L.J. 540 : I.L.R. 58 Mad. 735 , I wish to add that to the best of my recollection the question of the propriety of looking into surrounding circumstances was not raised then. Those circumstances were assumed, as constituting the background of facts upon which the case had to be decided. Now that I have had the advantage of hearing that matter fully argued, I agree that in that respect our decision was wrong.
32. I agree with the judgment just delivered by my Lord the Chief Justice. I only wish to add that I entirely agree with the observations of my brother Patanjali Sastri, J., as to the mode in which promissory notes and other documents are drafted in this country to indicate that the executant excludes his personal liability and that he is executing the document for another.
Patanjali Sastri, J.
33. I agree with my Lord the Chief Justice whose judgment I have had the advantage of reading, and would only add that the appending of the words 'agent under power-of-attorney of etc.,' to the name of the executant is a well-known form commonly employed in Tamil documents to indicate execution in a representative capacity and exclusion of personal responsibility. The words are almost invariably regarded as limiting and qualifying the liability and not merely as describing or identifying the executant. It is indeed difficult to see what descriptive or decorative significance can be ascribed to such words when they are added to a name already adequately described as in the present case.
34. English decisions holding that words like 'Director', 'Secretary', 'Managing Agents' etc., added to the, signatures of parties to negotiable instruments are only descriptive and do not have the effect of excluding personal liability are, in my opinion, more misleading than helpful in determining the intention of parties to similar instruments in India and I respectfully endorse the protest of Sundara Aiyar, J., in Koneti Naicker v. Gopala Aiyar (1913) 23 M.L.J. 417 : I.L.R. 38 Mad. 482 , against a too rigid and indiscriminating adherence to English rules of construction in interpreting documents executed by the people of this country in their own vernacular. With all respect to Sadasiva Aiyar, J., whose differing judgment prevailed, it seems to me a curious inversion of true canons of construction to apply the English rule based upon a different mode of drawing negotiable instruments prevalent in England to similar instruments executed in India, brushing aside forms of words commonly used in vernacular to express agency as 'negligent practices of people in the mofussil.' In England as pointed out by Lord Ellenborough, C.J., in Lead-bitter v. Farrow (1816) 5 M. and Section 345 : 105 E.R. 1077, it was an universal rule that a man who puts his name to a bill of exchange thereby makes himself personally liable unless he subscribes it for another or by procuration of another which are words of exclusion (italics mine). This well-established mode of excluding personal liability was recognised and perhaps made more stringent in Section 26 of the Bills of Exchange Act of 1882, and hence the English rule. But in this part of the country it is the usual practice in drawing a promissory note in vernacular to begin by stating that it is executed by A B to C D and where such execution is for and on behalf of another, to append the words 'agent under power-of-attorney of X, Y', to the name of the executant. No Tamilian would read the promissory note in suit, (Ex. A), except as one executed by the maker for and on behalf of his principal. Promissory notes are not only common among the commercial community in the cities but are popular among the large agricultural community in the mofussil on account of the low stamp duty to which they are subject, and it is to the interest of these communities that no doubts should be thrown on the generally accepted meaning of these words as excluding personal liability on the part of the signatory.
35. Mr. Venkatesa Aiyar placed reliance on the wording of Section 28 as sanctioning the application of the English rule in this country also. He pointed out that the section begins with the words 'an agent' and not 'a person; thereby indicating that even if the instrument purports to be executed by a person as an agent, that is not sufficient to exclude personal liability. But there is no warrant for supposing that the section presupposes instruments purporting to be executed by an agent as such. All that it means is that a person who is in fact an agent but signs his name without indicating on the instrument that he signs as agent or that he does not intend thereby to incur personal responsibility, is liable as a principal--Cf. Section 231 of the Indian Contract Act where the words 'an agent' obviously refer to a person who is in fact an agent and not one who purports to act as such.
36. I agree.