- Bookmark
- Share
- CaseIQ
Children Thankammal Vayamkaramma And Ors. v. Mullatha Meenakshi Amma'S Daughter Kunhamma And Ors.
Structured Summary of the Provided Opinion
Factual and Procedural Background
Defendants 2, 3 and 4 (petitioners in revision) were junior members of a tavazhi (joint family), of which the 1st defendant was the manager. The 1st defendant, as manager, borrowed Rs. 100 in cash and executed a promissory note in her own handwriting to the plaintiff on 18 February 1914. The plaintiff brought a suit against the 1st defendant and the other members of the tavazhi, alleging the money was borrowed under the promissory note for the necessities of the tavazhi. The Subordinate Judge on the Small Cause side entered a decree against the 1st defendant and also against the other defendants to the extent of their interest in the tavazhi properties. Defendants 2 to 4 filed a revision petition raising, among other grounds, two principal objections: (1) that under the ruling in Govinda(n) Nair v. Nana Menon the lower court erred in giving a decree against the tavazhi because the suit was solely based on the promissory note; and (2) that the lower court did not find that the tavazhi had a necessity to borrow.
Legal Issues Presented
- Whether a creditor can bring two separate causes of action (one based on contemporaneous borrowing and one on the promissory note) when a promissory note is executed for money borrowed at the time of execution.
- Whether the decision in Govindan Nair v. Nana Menon precludes a decree against other members of a tavazhi when the karnavan or manager has executed a promissory note for tavazhi purposes.
- Whether the lower court was required to make an explicit finding that the borrowing was a "necessity" of the tavazhi in order to make other members liable.
- Whether a payment or endorsement by the manager (1st defendant), not expressly stated to be as manager, can operate to extend the period of limitation as against other members of the tavazhi.
Arguments of the Parties
Petitioners (Defendants 2–4) — Grounds in Revision
- Contended that, per Govinda(n) Nair v. Nana Menon, the lower court erred by decreeing against the tavazhi because the suit was based solely on the promissory note.
- Argued the lower court failed to find that the tavazhi had a necessity to borrow, implying that liability of other members should not be imposed without such a finding.
- Their counsel (Mr. Kutti Krishna Menon) additionally argued (though not raised in the revision grounds) that the suit was barred by limitation as against the other members, because a payment endorsed by the 1st defendant did not purport to have been made by her in her capacity as manager.
The opinion does not contain a detailed account of any specific arguments advanced by the plaintiff beyond the plaint's allegation that the money was borrowed for the necessities of the tavazhi.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Govindan Nair v. Nana Menon (1914) 27 M.L.J. 595 | Establishes that where a suit is based solely on a promissory note, liability of other family members under their personal law must be alleged and proved; decision turned on absence of such allegation/evidence. | The court distinguished this case: it held Govindan Nair does not preclude a decree against other members where the plaint pleads and evidence shows the tavazhi liability (i.e., the other members' liability under their personal law was alleged/established here). |
| Muthu Sastrigal v. Visvanatha Pandara Sannatht (1918) I.L.R. 38 Mad. 660 | Discussed in relation to whether two distinct causes of action arise where promissory note and contemporaneous borrowing occur. | Cited in considering that, having regard to Section 91 Indian Evidence Act, two distinct causes of action do not vest in such cases. |
| Ammalu Ammal v. Namagiri Animal (1916) 33 M.L.J. 644 | Referenced alongside Muthu Sastrigal on the same question of causes of action where promissory note contemporaneous with borrowing. | Used to support the view that two separate causes of action do not arise; cited as part of case-law context. |
| Shummuganatha Chettiar v. Srinivasa Aiyar (1916) I.L.R. 40 Mad. 727 | Represents authority taking a position relevant to the question whether separate causes of action exist. | Noted as part of the jurisprudential landscape; contrasted with decisions taking an opposite view. |
| Karimalli Abdulla v. Karimji Jiwanji (1915) I.L.R. 39 Bom. 261 | Privy Council decision relied on by some to support the view that creditor can put forward two independent claims; actually concerned whether a transaction was a partnership transaction. | The court interpreted the Privy Council as addressing a different partnership question and not the specific Hindu/tavazhi promissory note issue; thus it was not treated as directly governing the point here. |
| Nachiappa Chetty v. Dakshnimurthi Servai (1915) M.W.N. 217 | Discusses whether, when debt and promissory note arise simultaneously, the maker must be sued on the note and whether liability of others arises from the execution of the note. | The learned Chief Justice's explanation of Govindan Nair was relied upon: Nachiappa Chetty indicates that other family liability may arise from the promissory note itself if properly alleged/proved; the present case was distinguished on that basis. |
| Ayyasami Pillai v. Guruswami Naicker (1916) 3 L.W. 463 | Indicates that claims based on Hindu Law against persons other than the maker arise along with and as a result of execution of the promissory note by the managing member. | Applied to hold that other tavazhi members may be liable on a promissory note executed by the manager when the debt is for proper tavazhi debts. |
| Nataraja Naicken v. Aiyaswami Pillai (1916) 32 M.L.J. 354 | Confirms the principle in Ayyasami Pillai; relates to liability of joint-family members upon promissory notes executed by the manager. | Relied on as corroborative authority that the promissory note by managing member creates liability of other family members for proper debts. |
| Krishna Ayya v. Krishnaswami Aiyar (1900) I.L.R. 23 Mad. 597 | Full Bench decision holding that the debt created by the promissory note ipso facto creates obligation on other members under Hindu law. | Quoted and applied to support the proposition that the obligation on other members arises with the execution of the promissory note and not from any antecedent independent debt. |
| Chinnayya v. Gurunathan (1882) I.L.R. 5 Mad. 169 | Full Bench decision that the managing member has a right to create debts and to make payments towards debts, and thus may bind the family for such debts. | Held to be conclusive that a manager can acknowledge or make payments that operate to extend limitation as against the family members as well as himself/herself. |
| Krishna Chettiar v. Nagamani Ammal (1915) I.L.R. 39 Mad. 915 | Authority that a document creating the original liability need not purport to be signed by the executant as manager. | Applied to reject the argument that the manager must expressly sign as manager for the document or endorsement to bind the tavazhi. |
| Parakutty Amma v. Kunhi Krishnan Nair S.A. No. 395 of 1917 | A decision (referenced by petitioners) that, according to petitioners' counsel, may hold otherwise on whether manager must sign as manager when making payments or acknowledgments. | The court expressly declined to follow any contrary proposition in that decision, stating inability to follow it with respect. |
| Lakshmana Chetty v. Sadayappa Chetty (1918) 35 M.L.J. 571 | Establishes that authority to sign an acknowledgment under Section 19 Limitation Act need not be expressly given and that agency may follow from court act, statutory/partnership rules, or personal law. | Relied upon to support the proposition that an endorsement or acknowledgment by the manager can bind other members for limitation purposes even without express agency being recorded. |
| Sarada Charan Chakravarthi v. Durgaram De Sinha (1910) I.L.R. 37 Cal. | Addressed in relation to whether a manager's acknowledgement can extend limitation against other family members. | Applied (with Chinnayya) to show consensus that a manager can acknowledge liability so as to extend limitation against the family members. |
Court's Reasoning and Analysis
The court proceeded through a sequence of legal questions and authorities in resolving the revision petition:
- On the question whether two distinct causes of action arise when a promissory note is executed contemporaneously with the borrowing, the court reviewed several decisions. Having regard to Section 91 of the Indian Evidence Act, the court expressed the view that two distinct causes of action do not vest in such cases and that the obligation under Hindu family law against other members arises "along with and as a result of the execution of the promissory note by the managing member." The court distinguished authorities that suggested otherwise as being concerned with different legal questions (for example, partnership issues addressed by the Privy Council in Karimalli Abdulla v. Karimji Jiwanji).
- On whether Govindan Nair v. Nana Menon precludes a decree against other tavazhi members, the court explained that Govindan Nair turned on the absence of pleaded or proved facts showing liability of other members under the relevant family law. Therefore, Govindan Nair does not prevent decreeing against other members where the plaintiff has pleaded and established that, under the family law (Marumakkathayam in the Govindan Nair explanation), the other members were bound by the manager's debt. The court relied on Nachiappa Chetty and other decisions to show that liability of other family members may be imposed when the promissory note is executed by the manager for proper family debts.
- On the limitation point (whether the endorsement/payment by the manager extended limitation as against the other members), the court relied on Chinnayya v. Gurunathan and other authorities to conclude that the managing member has the right to create debts and to make payments on them; it is unnecessary for the manager to expressly state that payments or endorsements are made in the capacity of manager. The court further cited Lakshmana Chetty to affirm that authority to sign acknowledgments under Section 19 of the Limitation Act need not be expressly given and may be inferred from the circumstances or the applicable personal law.
- Regarding the asserted absence of a finding that borrowing was a necessity of the tavazhi, the court read the Subordinate Judge's finding that the debt was contracted for the purpose of the tavazhi as effectively meaning that it was for the necessary expenses of the tavazhi; thus, that concern was addressed by the lower court's finding.
- The concurring opinion (Spencer, J.) reiterated the points above: that the suit was based on liability evidenced by the promissory note signed by the 1st defendant as manager; that the Subordinate Judge resolved the necessity question in the plaintiff's favour; that Govindan Nair is distinguishable because that case was based solely on the promissory note without pleadings establishing other members' liability; and that Chinnayya and Sarada Charan Chakravarthi support the proposition that a manager's acknowledgment can extend limitation to other members.
Holding and Implications
Holding: The Civil Revision Petition is dismissed with costs.
Implications and direct effect:
- The dismissal upholds the decree of the Subordinate Judge that was entered against the 1st defendant and against the other defendants to the extent of their interest in the tavazhi properties.
- The court held that where a promissory note is executed by the managing member for proper tavazhi debts and where the plaintiff has pleaded and proved the family-law basis of liability, other family members can be decreed against on that promissory note (i.e., their liability arises with the execution of the note).
- The court concluded that endorsements or payments by the manager need not expressly state the capacity of manager to bind the family or to extend limitation; authority may be inferred by law or circumstances.
- No broader novel precedent or sweeping new rule beyond the application and reconciliation of existing authorities was announced; the judgment applies and distinguishes earlier authorities to the facts before the court.
This summary is drawn exclusively from the provided opinion. No information has been added beyond what the opinion itself contains.
1. Defendants 2, 3 and 4 are the petitioners in revision. They are junior members of a tavazhi, of which the 1st defendant was the manager. As such manager, she borrowed Rs. 100 in cash for tavazhi expenses and executed a promissory note in her own handwriting to the plaintiff on the 18th February 1914. A suit was brought against her and the other members of the tavazhi, the plaint alleging that the money was borrowed under the promissory note for the necessities of the tavazhi. The Subordinate Judge on the Small Cause side gave a decree against the 1st defendant and also against the other defendants to the extent of their interest in the tavazhi properties. Defendants 2 to 4 urge in their grounds of the revision petition (1) that under the ruling in Govinda Nair v. Nana Menon (1914) 27 M.L.J. 595 the lower court erred in giving a decree against the Tavazhi as the suit was solely based on the promissory note (2) that the lower court has not found that the tavazhi had a necessity to borrow. (There are other grounds which raise questions of fact, which it is not usual in revision petitions to consider).
2. As regards the first point, there was a preliminary argument addressed on the question whether when a promissory note is executed for money borrowed at the time of the execution of the promissory note itself, the creditor can bring two separate suits or put forward two separate causes of action in the same suit on two independent heads of claim, namely, one based on the borrowing of the money the instant before the execution of the promissory note and the other on the promissory note itself. In Muthu Sastrigal v. Visvanatha Pandara Sannatht (1918) I.L.R. 38 Mad. 660 see also the decision in Ammalu Ammal v. Namagiri Animal (1916) 33 M.L.J. 644. I expressed the opinion that having regard to Section 91 of the Indian Evidence Act, two distinct causes of action did not vest in such cases in the creditor. In Shummuganatha Chettiar v. Srinivasa Aiyar (1916) I.L.R. 40 Mad. 727. Abdur Rahim, J., basing himself on the decision of the Privy council in Karimalli Abdulla v. Karimji Jiwanji (1915) I.L.R. 39 Bom. 261 held that the creditor has the right to put forward the two claims independently of one another. With the greatest respect, I venture to think that their Lordships of the Privy Council were not considering this question in Karimali Abdulla v. Karimji Jiwanji (1915) I.L.R. 39 Bom. 261 but a different question, namely, whether other partners were liable on bills drawn by one of the partners for debts incurred by him in the carrying on the partnership business of purchasing brown sugar at Mauritius for shipment to and sale at Hongkong. Their Lorships say expressly at pages 274 and 275 that " the Indian Contract Act" "rules parties in this case" and the question was " whether the transaction is or is not a partnership transaction" and that " it is erroneous to treat the question as purely a question of liability on the bills " just as it is erroneous in the present case to treat the suit as one solely on the promissory note and not also on the Hindu law liability of the tavazhi for a promissory note debt incurred by its manager in respect of a family transaction within her powers. I might add that the decision in Nachiappa Chetty v. Dakshnimurthi Servai (1915) M.W.N. 217 a case decided after the decision of their Lordships of the Privy Council in Karimalli Abdulla v. Karimji Jiwanji (1915) I.L.R. 39 Bom. 261 the learned Chief Justice has the following observation :--" This way of putting it does not take account of the decisions that where the debt and the promissory note came into existence at one and the same time the maker must be sued on the promissory note, and not on the original cause of action." This observation indicates that in the opinion of my Lord, the Chief Justice, there is only one cause of action, after the promissory note was executed (for a contemporaneous borrowing) on which a suit could be brought. I might also refer to the decisions of Coutts Trotter, J., in Ayyasami Pillaiv. Guruswami Naicker (1916) 3 L.W. 463 and of Ayling and Seshagiri Aiyar, JJ., in Nataraja Naicken v. Aiyaswami Pillai (1916) 32 M.L.J 354 which indicate that the claim based upon rules of the Hindu Law and made against persons other than the maker of the promissory note arises along with and as a result of the execution of the promissory note by the managing member. So also in the Full Bench decision in Krishna Ayya v. Krishnaswami Aiyar (1900) I.L.R. 23 Mad. 597. Subrahmania Aiyar, J., clearly bases his decision on the ground that the debt created by the promissory note itself ipso facto creates the obligation on the other members of the family under the Hindu Law and not that their obligation is created by any antecedent independent debt which existed before the promissory note was executed.
3. Then the next question is whether the decision in Govindan Nair v. Nana Menon (1914) 27 M.L.J. 595 precludes the Court from giving a decree against the other members of the tavazhi even if the debt has been incurred by the karnavan for purposes binding on the tavazhi. This decision in Govindan Nair v. Nana Menon (1914) 27 M.L.J. 595 has been clearly explained by the learned Chief Justice who was a party to it in his judgment in Nachiappa Chetty v. Dakshinamurthi Servai (1915) M.W.N 217. He there points out that the decision in Govindan Nair v. Nana Menon (1914) 27 M.L.J. 595 was based on the fact that the plaintiff in that case neither alleged in his plaint nor proved by his evidence facts indicating that, by the Marumakkathayam Law, the other members of the tavazhi were bound by the debt of the manager. On the other hand, the decision in the case in Nachiappa Chetty v. Dakshinamurthi Servai (1915) M.W.N. 217 and the decisions in Ayyaswami Pillai v. Guruswami Naicker (1916) 3 L.W. 468 and Nataraja Naicken v. Ayyaswami Pillai (1916) 32 M.L.J. 354 impose liability on the other members of the tarwad or the joint family on the promissory note executed by the karnavan or the manager (as the case may be) for proper debts.
4. The next point argued by Mr. Kutti Krishna Menon for the petitioners (though I do not find it raised in the grounds of the revision petition) was that the suit was barred by limitation as against the other members of the Tavazhi because the payment towards the principal and interest made by the 1st defendant and endorsed on the promissory note in her writing and over her signature does not purport to be made by her as manager of the tavazhi. I think that the matter is concluded by the Full Bench decision in Chinnayya v. Gurunathan (1882) I.L.R. 5 Mad. 169 where it was held that the managing member has got a right to create debts and to make payment towards debts. Just as it is unnecessary that the document creating the original liability should purport to be signed by the executant as manager (see on this point the decision in Krishna Chettiar v. Nagamani Ammal (1915) I.L.R. 39 Mad. 915 it is likewise unnecessary that the manager when making payments or signing endorsements, should expressly state that he or she pays or signs as manager. If the decision in Parakutty Amma v. Kunhi Krishnan Nair S.A. No. 395 of 1917 quoted by Mr. Kutti Krishna Menon holds otherwise, I regret (with great respect) that I am unable to follow it. That the authority to sign an acknowledgment under Section 19 of the Limitation Act need not be expressly given by the parties sought to be made liable and that the agency to sign can follow from the act of the Court or from rules of statutory or partnership law or the personal law of the defendant has been established by the case-law discussed fully in Lakshmana Chetty v. Sadayappa Chetty (1918) 35 M.L.J. 571 in the judgment of Abdur Rahim, J.
5. Then on the question that there is no finding by the Subordinate Judge that there was necessity to borrow, I think that his finding that the debt was contracted for purpose of Tavazhi is only another way of saying that it was for the necessary expenses of the tavazhi that the debt was incurred.
6. I would therefore dismiss the revision petition with costs.
Spencer, J.
7. On the pleadings in the Small Cause suit, I am of opinion that the suit was based on the liability for the debt as evidenced by the promissory note of 18th February 1914 signed by 1st defendant, the manager of the defendant's tavazhi.
8. Paragraph 5 of the plaint and paragraph 2 of the written statement raised the question whether the debt was contracted for the necessity of the members of the tavazhi and the Subordinate Judge has decided the issue arising out of this question in the plaintiff's favour.
9. The petitioners' vakil relies on the decisions in Govindan Nair v. Nana Menon (1914) 27 M.L.J. 595 in support of his contention that the defendant's tavazhi is not liable. That suit was based solely upon the promissory note and not upon the original cause of action. It is expressly so stated in the judgment. I would distinguish that case from the present upon that ground. In Nachiappa Chetty v. Dakshnimurthi Servai (1915) M.W.N. 217 at page 220 the learned Chief Justice in following the decision in Krishna Aiyar v. Krishnaswami Aiyar (1900) I.L.R. 23 Mad. 597 found no difficulty in so distinguishing the decision in Govindan Nair v. Nana Menon (1914) 27 M.L.J. 595 to which he was a party.
10. The decision of Coutts Trotter, J., in Ayyaswami Pillai v. Guruswami Naicken (1916) 3 L.W. 463 and the decision of a Bench in Nataraja Naicken v. Ayyaswami Pillai (1816) 32 M.L.J. 354 in which his decision was confirmed are exactly to the point on the question raised in this Civil Revision Petition. The cases of partnership which have been quoted in the arguments have not, to my mind, much bearing upon this point as liabilities of partners are governed not by Hindu Law but by Sections 249 and 251 of the Indian Contract Act.
11. On the question whether the 1st defendant's payment of Rs. 23 on the 17th February 1917 which was certified over her signature had the effect of extending the limitation as against the other defendants. I think that the decision in Chinnayya v. Gurunathan (1882) I.L.R. 5 Mad. 169 and that in Sarada Charan Chakravarthi v. Durgaram De Sinha (1910) I.L.R. 37 Cal are conclusive as showing that a manager can acknowledge liability of the members of the family which he or she represents so as to extend the period of limitation against them as well as against himself or herself.
12. I agree with my learned brother in holding that the Civil revision petition shall be dismissed with costs.
Alert