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Chella Balayya Vs. Kanuparthi Subbayya - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in44Ind.Cas.813
AppellantChella Balayya
RespondentKanuparthi Subbayya
Cases ReferredRadhakrishna Mudaliar v. Subraya Mudaliar
Excerpt:
negotiable instruments act (xxvi of 1881), sections 4, 27 - promissory note, execution of, by illiterate person--mark of executant, absence of--execution, proof of, by authority--agency--contract act (ix of 1872), section 226. - .....was decided with reference to the execution of a will and the special wording of section 0, indian succession act. it, therefore, lays down no general rule. we accordingly agree with the lower appellate court that plaintiff is at liberty to prove the execution of the suit note by defendant's authority and that the case must be remanded in order that he may have an opportunity to do so. the appeal against order is dismissed with costs.
Judgment:

1. The suit promissory note purports to be executed by defendant-appellant in virtue of the words on it 'Nishi, mark of Chella Subbayya.'

2. There is in fact no separate mark. The plaintiff contends that the absence of one is immaterial and that he is at liberty to prove that the words referred to were written with defendant's authority and, therefore, constituted a valid execution of the instrument.

3. As regards the 1st point, we cannot see and have not been shown authority for holding that any separate mark is essential, if the writing relied on is in fact written with authority.

4. As regards the 2nd, no case has been cited to the effect that the ordinary law of agency stated in Section 226 of the Indian Contract Act is inapplicable to negotiable instruments, and Section 27, Negotiable Instruments Act, is to the contrary effect, its restrictive portion being irrelevant in the present connection. Radhakrishna Mudaliar v. Subraya Mudaliar 34 Ind. Cas. 849relied on by appellant, was decided with reference to the execution of a Will and the special wording of Section 0, Indian Succession Act. It, therefore, lays down no general rule. We accordingly agree with the lower Appellate Court that plaintiff is at liberty to prove the execution of the suit note by defendant's authority and that the case must be remanded in order that he may have an opportunity to do so. The appeal against order is dismissed with costs.


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