1. The suit out of which this second appeal arises was instituted on a pro-note executed in favour of the plaintiff's husband by the 1st defendant on behalf of himself and as guardian of the 2nd defendant, who is his natural son given away in adoption to a brother of his. There were four brothers in an undivided Hindu family, namely, the plaintiff's husband Aiyasami Aiyer, the 1st defendant, the 2nd defendant's adoptive father and one Subramania Aiyar. Disputes arose between them in connection with the partition of their family property. Aiyasami Aiyer, the plaintiff's husband, was burdened with 6 daughters only two of whom had been given away in marriage. Several daughters of some of the other brothers had been married at the expense of the family. Aiyasami Aiyer made a claim that he was entitled to have an allotment towards the expenses of the marriages of his other daughters. The other brothers in settlement of this claim agreed to pay him Rs, 5,000. This agreement is one of the stipulations contained in the partition karar, Exhibit C, dated the 5th September 1901. According to Exhibit C they were bound to make the payment within 3 months by which time apparently the parties intended the partition would be completed. Lists of properties to be allotted to each of the co-parceners were drawn up on the 11th January 1902. As payment of the Rs. 5,000 promised has not been made to the plaintiff, two pro-notes were executed for the amount, one of them Exhibit A for Rs. 3,333 5-4 and the other by Subramaniya Iyer for the balance on 10th January 1902. The lower Courts have held the plaintiff entitled to decree for the amount due on the pro-note Exhibit A. The defendants object to the decree on three grounds (1) that there was no consideration in law for the promise to pay Rs. 5,000, (2) that the promise was not of such a character as would be binding on the minor 2nd defendant when made by his guardian the 1st defendant, and (3) that the suit is barred by Section 43 of the Civil Procedure Code.
2. The first contention may be disposed of in a few words. The appellant's argument is that the agreement to pay Rs. 5,000 was not ore of the terms of the agreement between the parties for the division of the family properties but an independent promise, that there was no obligation under the Hindu law on Aiyasamy's brother to contribute towards the expenses of his daughters' marriage and that there was, therefore, no legal consideration to support the promise.
3. We are entirely unable to accede to this argument. Page 13 of Exhibit C. says: As it has been settled that for the expenses of marriages, etc., that have to be celebrated for the daughters of Aiyasami Aiyer, one of us, the other 3 co-parceners shall pay Rs. 5,000 in a term of 3 months from now; the said sum of Rs. 5,000 shall be accordingly paid off in cash in the aforesaid term. The natural construction of the Clause is that the parties agreed under the instrument Exhibit C to pay the sum. But assuming that it had been previously settled that Sections 5,000 should be paid to Aiyasami Aiyer that fact would certainly make no difference, for the effect of the Clause is to make the previous agreement about the payment of Rs. 5,000 part of the agreement of partition which the parties were at perfect liberty to do. Mr. Rangachari attempted to perform the impossible feat of separating the promise contained in Clause 13 from the other terms of Exhibit C and he would regard the statement in page 13 as a mere recital of an independent promise even if the promise was made at the same time as the other terms in Exhibit C were agreed to. He contends that the plaintiff himself so treated the matter in the plaint, but we can find nothing in the plaint to support the argument. He also relies on a sentence in Exhibit B, a letter written by the 1st defendant and Subramania Iyer on the same day as they executed the pro-notes, in which they say, 'Even though other matters relating to partition among us may not be settled we shall pay off the said amount without raising any objection.' Bat this does not show that the promise was a transaction independent of the agreement of partition. The object of the letter was merely to prevent the executants of the pro-notes, in case litigation should ensue with regard to the enforcement of the agreement of partition, from resisting the payment of the amount of the pronotes until the other terms of the partition agreement were also fulfilled by the various parties thereto. In other words, the object was to prevent them from raising the plea that no term of Exhibit C could be enforced prior to the fulfilment of the other terms. This does not show that the promise was not to be enforced as one of the terms of Exhibit C. It is not contended that the defence of absence of consideration could be set up if the promise be regarded as one of the terms of Exhibit C. It is not contended that the defence of absence of consideration could be set up if the promise be regarded as one of the terms of the contract of partition as Aiyasami Iyer's agreement to the other terms of the contract would then be sufficient consideration.
4. With regard to the second contention that the 1st defendant had no right to bind the minor 2nd defendant by such a promise the argument is that according to Hindu Law there is no obligation on the part of coparceners to provide at a partition for the marriages of the daughters of one of them out of the general family funds and that it was, therefore, beyond the powers of the 1st defendant as a guardian to bind his ward for a purpose which created no legal obligation on the ward. But it is clear that Aiyasami Iyer made claim that he was legally entitled to a portion for his daughter's marriages. Three daughters of the 1st defendant had been married at the expenses of the family estate and the only daughter of Subramania Iyer had been married and provided oat of the family funds. There is no reason for supposing that Aiyasami Iyer did not believe that he had ground for making the claim or that the 1st defendant did not believe that there were some grounds for the claim. Nor can we assume that the claim was altogether unfounded according to Hindu Law, although the plaintiffs in the Court of first instance seems to have conceded that the claim would not be enforced by a Court of Law. Further, it appears from paragraph 12 of the Subordinate Judge's judgment that there were other matters in dispute between Aiyasami Iyer and his brothers. All of them were settled by Exhibit C and it is impossible to separate the promise contained in paragraph 13 from the other terms of Exhibit C and to test its validity by a consideration merely of the abstract legal question which is raised to resist the promise. We must uphold it as one of the terms of a bona fide, compromise constituting a settlement between the members of the family.
5. We now proceed to the consideration of the last question, whether the suit is barred by Section 43 of Act XIV of 1882. The defendant's contention is that the plaintiff should have included the present claim in the Suit No. 31 of 1904 on the file of the Additional Subordinate Judge's Court of Tanjore instituted by the plaintiff's husband against the defendants and Subramania Iyer for division of the family properties. The learned Vakil for the appellants contends that the cause of action was the same in both suits namely the agreement of partition, Exhibit C, and that the suit is, therefore, barred by Section 43. The argument is fallacious for several reasons. In the first place the present claim is one against the 1st and 2nd defendents only, while the right to division of the properties was against all the members of the family including Subramania Iyer. See Nannu v. Raman 16 M.P 335. Secondly, the parties agreed to execute separate pro-notes for the sum of Rs, 5,000, Exhibit A being executed by defendants Nos. 1 and 2 and another pro-note by Subramania Iyer for the remainder of the amount. The original agreement to pay Rs. 5,000 was thus split up into two contracts. In Exhibit B, the letter already referred to, the 1st defendant and Subramania Iyer say, 'As we have not found it convenient to settle it now (that is, the payment of Rs. 5,000) according to the aforesaid arrangement (that is, to pay the amount within 3 months from the date of Exhibit C) we have on this day separately executed promissory-notes to you for the said amount and thereby the said matter has been settled.' In other words, the obligation created by Exhibit C is regarded as discharged by the execution of different pro-notes. There can, therefore, be no doubt that the promise contained in paragraph 13 to Exhibit C became separated from the other obligation contained in that instrument and was split up into two different obligations by two pro-notes. Each pro-note, therefore, furnishes a separate cause of action different from the obligation existing under Exhibit C. Thirdly, even apart from the effect of Exhibit B, we have no doubt that although the original obligation may be single and entire, if the parties agree to execute a separate document for a part of the obligation that document will constitute a distinct cause of action.
6. In Sesha Ayyar v. Krishna Iyengar 24 M.P 96 a sum of Rs. 10,500 was found due by a debtor, and for this amount two mortgage bonds were executed by him, one for Rs. 10,0C0 and the other for Rs. 500, on the same date, It was contended that a suit instituted on the bond for Rs. 10,000 was barred by a previous suit on the one for Rs. 500. Sheppard and Davies, JJ., held that it was not. The learned Judges say: 'it may be true that the term 'cause of action' is used in that Section in a peculiar way, but we do not think that when parties for whatever reason choose to agree that there should be two instruments and two obligations, the Courts are justified in saying that there is only one obligation.' The same view was held in Umed Dholchand v. Pir Saheb Jiva Miya 7 B.P 134. There, for the amount due on a previous bond, two different bonds were executed by the debtor. Sargent, C.J., ahd Melville, J., held that the bonds furnish different causes of action for purposes of Section 43. Their Lordships say: 'There can be no doubt that the two bonds and the default in payment of them constitute, in any view of the expression 'cause of action', two distinct causes of action and there is nothing, we think, in the language of the Section (which would appear to have been mainly designed to discourage multiplicity of suits) which would justify the Court in going behind the bonds to consider the circumstances out of which they sprung, albeit those circumstances might themselves at the time have constituted a cause of action.' See also Sundar Singh v. Bholu 20 A.P 322 and Moro Raghunath v. Balaji Trimbak 13 B.P 45.
7. It is immaterial, as pointed out by the Bombay High Court, for the decision of an objection under Section 43 to consider whether a suit could have been instituted on the original indebtedness apart from the pro-notes. It is often the case no doubt where a pro-note is executed for a previously existing debt, that an action may be maintained on the debt, apart from the pro-note. And it is sometimes necessary to do so, as when the pro-note is unenforceable for defect of stamp or otherwise. But this does not show that the pro-note itself is not a cause of action. There are two causes of action in a case on either of which a suit may as such be maintained. The presumption would, ordinarily, be that the cause of action for debt is merged in the pro-note. But there would be no effective legal merger where the pro-note cannot be sued on. If several pro-notes are executed for portions of the same debt, each pro-note creates a cause of action, and this would be so, even if it be assumed that a suit might be instituted for the whole debt on the original cause of action. If the creditor neglecting one of the pro notes institute a suit for the amount secured by it on the original cause of action, there is no doubt he would not be entitled to maintain another suit for the remaining amount on the original debt. In such a case he could claim no more than the amount secured by the particular pro-note. That pro-note is not a cause of action on which he could claim the value of the debt. Section 43 compels a person only to include the whole of the claim arising from the same cause of action. It does not require him to include what he could claim on a cause of action distinct from that which he sues on. Mr. Rangachari has referred to three oases in support of his contention: Appasami v. Ramasami 9 M.P 279; Shanmugam Pillai v. Syad Ghulam Ghose 27 M.P 116 and Preonath Mukerjee v. Bishnath Prasad 29 A.P 256 : (1907) A.W.N. 41 : 4 A.L.J. 85. In the first of these Appasami v. Ramasami 9 M.P 279 upon a settlement of accounts a sum of money was found due to a creditor, which the debtor agreed to pay. He gave the creditor an order on his agent to pay a portion of the amount from the profit of certain lands and promised to pay the balance within a month. The agent having failed to make payment, two different suits were instituted on the same day against the debtor for the amount which he had directed the agent to pay and for the balance respectively. It was contended that both suits were barred by Sections 42 and 43. Brandt and Parker, JJ., held that the giving of the order on the agent was not similar to the execution of a pro-note so as to give the creditor a separate cause of action for the amount of the order, and that the cause of action for the whole amount remained the same. They distinguish Umed Dholckand v. Pir Saheb Jiva Miya 7 B.P 134 and hold that one of the suits must be held to be barred. That case is clearly not analogous to the present one where a distinct source of obligation was created by the execution of the pro-note. In the second case, Shanmugam Pillai v. Syed Ghulam Ghose 27 M.P 116 an inamdar obtained separate muchilikas from the occupying ryot of his land for two different years. He first instituted a suit for rent for the later year and subsequently instituted another for the rent of the earlier year. Benson and Bashyam Ayangar, JJ., held that the second suit was barred. The judgment was based on the ground that the muchilikas did not furnish the cause of action for rent. They apparently regarded a muchilika as merely evidence of the terms of tenancy between the landholder and the ryot. They observe: 'Though there were separate muchilikas for faslis 1306 and 1305 yet there was but one cause of action, namely non-payment of rent by a tenant to his landlord. Though the rents became payable under different documents and at different times, they are only different claims under the same cause of action or tenancy. The case is very similar to the case where several articles are sold in succession by A. to B. If the vendor sues for the price, he must sue for the price of all the goods sold up to the date of his suit, and cannot sue separately first for one and then for another.' In Preonath Mukerji v. Bishnath Prosod 29 A.P 256 : (1907) A.W.N. 41 : 4 A.L.J. 85 the third case, A, 'a doctor, agreed with B. to accompany B. to ardwar as his medical attendant on a fee of Rs. 100 a day. After seven days B. gave A a promissory note for Rs. 700 representing seven day's fees. B. who was a Vakil also promised to assist A. professionally in certain litigation. B., however, died before he could fulfil his agreement to render professional services. A. sued B.'s son upon the promissory-note first and subsequently in a separate suit for the balance of his fees for attendance at Hardwar under the alleged agreement and for fees for later attendance at Benares.' It was held that the second suit was barred by the provisions of Section 43 of the Civil Procedure Code so far as the fees for, attendance at Hardwar wer6 concerned, though not in respect of the other fees claimed. The learned Judges, Stanley, C.J., and Burkitt, J., say that the cause of action for medical fees was the same in both cases and that it was in reality the breach oJE the agreement to pay a fee of Rs. 100 per day for attendance on the deceased. They observe: 'it is true that Raghunath Prasad executed a promissory-note to secure the payment of Rs. 700 on account of fees for seven days, but the fact that this security was given does not take the case out of Section 43 because of the proviso to that Section which is in the following terms: 'For the purposes of this Section an obligation and a collateral security for its performance shall be deemed to constitute but one cause of action.' The contention, therefore, that the cause of action on the promissory-note is one cause of action and the cause of action for the recovery of the balance of Rs. 600 forms another cause of action, is not well founded.' With all deference, we are unable to agree with the learned Judges that a pro-note executed for payment of a 'debt is ordinarily to be regarded merely as a collateral security for the debt. The deposit of title-deeds or mortgage as security is only an accessory right to secure the rendering of the main right, namely, the debt. But a promissory note is prima facie to be regarded as the record intended by the parties of the obligation to pay the debt. The decision is not in accordance with the case already referred to above, including the judgment of the Allahabad High Court, in Similar Singh v. Bholu 20 A.P 322 which is not referred to in the judgment.
8. For the reasons mentioned above, we hold that the present suit is not barred by Section 43 of the Civil Procedure Code.
9. We dismiss the second appeal with costs.