Nachiappa Chetty v. Dakshinamurthy Servai

1. This is a suit brought upon two promissory notes against one Ramaswami Chetti, the 1st defendant, who has since died and his minor son, the 2nd defendant. So far as the 1st defendant is concerned, the onus was of course upon him to show that the promissory notes were not supported by consideration, and the Subordinate Judge has found that he had failed to discharge that onus. The 1st defendant was residing at Kundanoor in the Ramnad District and was a partner in a firm which carried on business in Tinnevelly and also in Rangoon. He is stated to have executed the plaint notes for Rs. 7,000 and 6,000 respectively in May and July 1908. The plaintiff's case is that the notes were executed by him at Elayirampunnai, the plaintiff's father's village, whereas according to the defence one of them was executed at Kannakude near Madura during a festival and the other in a dancing girl's house at Madura. The defence case is that the second note was a mere renewal of the first and was antedated to May 1908. The defendants have put forward a very extraordinary story which we are altogether unable to accept.

2. While we have no hesitation in rejecting the case put forward for the defence, we have carefully considered whether on the evidence for the defence it might not be said that there was sufficient to shift the onus and throw upon the plaintiffs, the onus of proving that full consideration had been given for the notes.

3. No doubt the plaintiffs have exercised what might perhaps be described as a considerable economy of truth. They merely prove the execution of the notes and the payment of the money at the plaintiff's village and they give no explanation as to how the transaction came to be entered into nor do they produce any accounts. But on the whole we have come to the conclusion that there is not sufficient to justify us in holding that the onus is shifted or in differing from the conclusion at which the Subordinate Judge has arrived. So much for the facts.

4. It has, however, been argued that as against the minor, the 2nd defendant, the onus was upon the plaintiffs and the recent decision of the Full Bench in P. Govindan Nair…Plaintiff v. K. Nanu Menon…Defendant .(1) has been referred to, and it has been argued on the authority of that decision that as the suit is on the note it cannot, according to numerous cases, be treated as on the original cause of action against the maker of the note and that consequently the other defendants, who are sons of the 1st defendant cannot be made liable in this suit. That was an application to revise a decree of a Small Cause Court against the members of a tarwad on a promissory note executed by the deceased karnavan of the tarwad and was the subject of a reference to a Full Bench. It did not appear that it had either been alleged in the plaint or proved in evidence that the debt was contracted for purposes binding on the tarwad, facts necessary to be proved according to the decision of the Full Bench in Krishna Iyer v. Krishnaswami Iyer(2). It was held in that case that in order to enforce a promissory note not only against the maker who was the managing member of the family when he executed it, but also against the other members of the joint family, it was necessary to allege in the plaint and prove that the debt was contracted in circumstances binding on the family and that in a suit so framed the junior members of the family might properly be held liable. In the judgment of the Full Bench in Subba Narayana Vathiyar v. Bamaswami Iyer(3) the authority of this case was purposely left unaffected and all that was decided in P. Govindan Nair…Plaintiff v. K. Nanu Menon…Defendant . was that the circumstances of that case did not bring it within the authority of Krishna Iyer v. Krishnaswami Iyer, which they did not as I have already pointed out. This seemed to us sufficient to dispose of the case, and the judgment which is very brief merely says that the suit was based on the promissory note and not on the original cause of action and that consequently Krishna Iyer v. Krishnaswami Iyer did not apply. I do not think this meant anything more than that the facts which gave rise to the liability of the junior members were not alleged in the plaint and proved. If they had been alleged and proved, it might be said that in one sense it was a suit upon the original cause of action, but 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. The decision in Krishna Iyer v. Krishnaswami Iyer is authority for the position that even if the suit against the maker is on the promissory note, it is permissible in the same suit to plead and prove facts which render the other members of the joint family liable, and it was not intended to interfere in any way with the authority of the decision in P. Govindan Nair…Plaintiff v. K. Nanu Menon…Defendant . to which I was a party. In the present case in order to make the 3rd defendant as guardian of 1st defendant liable, it is not necessary to plead and prove that the debt was incurred by the father for purposes binding on the family, and it is enough to give him an opportunity of showing, if he can, that it was incurred for purposes which were illegal or immoral which it is for him to prove. Applying the principle of the decision in Krishna Iyer v. Krishnaswamy Iyer to the case of a suit against a father, the executant of the promissory note, and his sons, it is sufficient to join the sons and give them an opportunity of showing circumstances which would prevent the debt being binding on them or decree being passed against them. This form of suit is of every day occurrence and there is in my opinion nothing in the decision in P. Govindan Nair…Plaintiff v. K. Nanu Menon…Defendant . to affect its validity. In these circumstances there can be no question of there being any different onus in the case of sons from that in the case of the father. Therefore, that objection also fails.

5. In the result, the appeal fails and is dismissed with costs.

S.N/R.K

6. Appeal dismissed.