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Kaliana thevan and ors. Vs. Muthuswami Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1940Mad174
AppellantKaliana thevan and ors.
RespondentMuthuswami Goundan and ors.
Cases ReferredMaruthamuthu Naicker v. Kadir Badsha Rowther A.I.R.
Excerpt:
- - on the note against the executant unless the endorsement is so worded as to transfer the debt as well and the law as to stamping is complied with. 240. an endorsement may operate to assign the debt as well when it is so worded and the requirements of the law with regard to stamping are complied with......with regard to stamping are complied with.2. the respondent contends that the endorsement upon the suit promissory note is an assignment not only of the promissory note but also of the original debt. in this endorsement, which expresses itself to be an assignment after various recitals these words appear : 'i have assigned this promissory note in your favour.' assuming that it was an assignment, then what was assigned was nothing more than the promissory note. i have been referred by learned counsel on behalf of the respondent to muthat sahib maraikar v. kader sahib marakayar (1905) 28 mad. 544, in which sir section subramania iyer, offg. c.j. in the course of the judgment said at p. 546 that in the case of transfer of a negotiable instrument otherwise than by indorsementthe assignee.....
Judgment:

Gentle, J.

1. In the suit the plaintiff sued on a promissory note dated 5th April 1929 executed by defendant 1 in favour of Kaliappa Kavundan in respect of a sum of Rs. 1355 with interest at one per cent, per mensem. The person in whose favour the promissory note was given transferred it on 7th March 1932 to the plaintiff. The lower Courts decreed in his favour the amount claimed not only against defendant 1, the executant, but also against defendants 2 to 9 as being members of a joint Hindu family with defendant 1. The appellants are defendants 6 to 9, namely, the brothers and nephews respectively of the executant. I have no doubt that the suit was one on the promissory note. On behalf of the appellants, it is contended that the executant alone is responsible in a suit upon a promissory note at the instance of an indorsee and it is contended that the plaintiff is an indorsee. In Maruthamuthu Naicker v. Kadir Badsha Rowther A.I.R. (1938) Mad. 377, it was held that the indorsee of a promissory note executed by the managing member of a joint Hindu family is limited to his remedy; on the note against the executant unless the endorsement is so worded as to transfer the debt as well and the law as to stamping is complied with. In the course of the judgment, Sir Lionel Leach C.J., at p. 576 said:

Where the endorsement is in blank it only operates to transfer the property in the instrument and not as an assignment of the debt as was pointed out by Madhavan Nair J. in Periakaruppan Chetti v. Mottayya Mudali A.I.R. (1935) Mad. 240. An endorsement may operate to assign the debt as well when it is so worded and the requirements of the law with regard to stamping are complied with.

2. The respondent contends that the endorsement upon the suit promissory note is an assignment not only of the promissory note but also of the original debt. In this endorsement, which expresses itself to be an assignment after various recitals these words appear : 'I have assigned this promissory note in your favour.' Assuming that it was an assignment, then what was assigned was nothing more than the promissory note. I have been referred by learned Counsel on behalf of the respondent to Muthat Sahib Maraikar v. Kader Sahib Marakayar (1905) 28 Mad. 544, in which Sir Section Subramania Iyer, Offg. C.J. in the course of the judgment said at p. 546 that in the case of transfer of a negotiable instrument otherwise than by indorsement

the assignee will acquire in the bill or note, as a chattel, nothing more than the right, title and interest of his assignor, whereas in the case of an indorsement the assignee will have all the rights and advantages of a holder in due course of a negotiable instrument.

3. If the endorsement on the suit promissory note is assumed to be an assignment, what was assigned was the promissory note and in respect of the promissory note the right, title and interest of the assignor. I cannot see that there has been any assignment of the original debt. The plaintiff as indorsee or assignee, as the case may be, has not acquired any rights in regard to the original debt and his rights are confined to those arising out of the promissory note. If the endorsement does not amount to an assignment but is no more than an endorsement of the note the position is covered by the decision in Maruthamuthu Naicker v. Kadir Badsha Rowther A.I.R. (1938) Mad. 377. It must follow that the plaintiff is entitled to succeed only against the executant of the note, namely defendant 1, and not against the other members of the same family of which defendant 1 is a member. From the information before me there was no assignment of the original debt to the plaintiff. The endorsement on the suit promissory note is not stamped as an assignment, as such. Two authorities have been cited to me by the learned Counsel on behalf of the respondent to the effect that the document having been admitted in evidence the objection as regards inadequate stamping cannot prevail. It is unnecessary to give a decision on this point. The result is that the appeal will be allowed with costs both here and below. Leave to appeal granted.


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