Sadasiva Aiyar, J.:— Defendants 2, 3 and 4 are the petitioners in revision. They are junior members of a tavazhi, of which defendant 1 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 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 defendant 1 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 P. Govindan Nair…Plaintiff v. K. Nanu Menon…Defendant .(1) 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.
3. In Muthu Sastrigal v. Viswanatha Pandara Sannadhi(2): see also the decision in Ammalu Ammal v. Namagiri Ammal(3). I expressed the opinion that having regard to Section 91 of the Evidence Act, two distinct causes of action did not vest in such cases in the creditor. In Shanmuganatha Chettiar v. Srinivasa Aiyar(4), Abdur Rahim, J., basing himself on the decision of the Privy Council in Karmali Abdulla v. Bora Karimji(5), held that the creditor has the right to put forward the two claims independently of one another.
4. With the greatest respect I venture to think that their Lordships of the Privy Council were not considering this question in Karmali Abdulla v. Bora Karimji, 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 Lordships say expressly at pp. 274 and 275 (of 39 Bom.) that “the 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 in the decision in Nachiappa Chetty v. Dakshinamurthy Servai(6), a case decided after the decision of their Lordships of the Privy Council in Karmali Abdulla v. Bora Karimji the learned Chief Justice has the following observation:
“This way of putting it does not take account of 1 he 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.”
5. 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 Ayyasamy Pillai v. Gurusami Naicken(7) and of Ayling and Seshagiri Aiyar, JJ., in Nataraja Naicken v. Ayyasami Pillai(8), which indicate that the claim based on the rules of 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 Ayyar v. Krishnasami Ayyar(9) Sabrahmania 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.
6. Then the next question is whether the decision in P. Govindan Nair…Plaintiff v. K. Nanu Menon…Defendant . 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 P. Govindan Nair…Plaintiff v. K. Nanu Menon…Defendant . has been clearly explained by the learned Chief Justice, who was a party to it, in his judgment in Nachiappa Chetty v. Dakshinamurthy Servai. He there points out that the decision in P. Govindan Nair…Plaintiff v. K. Nanu Menon…Defendant . 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 Nachiappa Chetty v. Dakshinamurthy Servai and the decisions in Ayyasamy Pillai v. Gurusami Naicken and Nataraja Naicken v. Ayyasami Pillai 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.
7. 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 defendant 1 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 Chinnaya Nayudu v. Gurunathan Chetti(10), 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 Padma Krishna Chettiar v. Nagamani Ammal(11)], 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. Kurihi Krishnan Nair(12) quoted by Mr. Kutti Krishnan 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 Lahshumanan Chetty v. Padayappa Chetty(13) in the judgment of Abdur Rahim, J.
8. 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 purposes of the tavazhi is only another way of saying that it was for the necessary expense of the tavazhi that the debt was incurred. I would therefore dismiss the revision petition with costs.
Spencer, J.:— 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 defendant 1, the manager of the defendant's tavazhi. Para. 5 of the plaint and para. 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. The petitioners' vakil relies on the decision in P. Govindan Nair…Plaintiff v. K. Nanu Menon…Defendant . in support of his contention that the defendants' 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 entited in the judgment. I would distinguish that case from the present upon that ground. In Nachiappa Chetty v. Dakshinamurthi Servai the learned Chief Justice, in following the decision in Krishna Ayyar v. Krishnasami Ayyar, found no difficulty in so distinguishing the decision in P. Govindan Nair…Plaintiff v. K. Nanu Menon…Defendant . to which he was a party. The decision of Coutts-Trotter, J., in Ayyasamy Pillai v. Guruswami Naicken, and the decision of a Bench in Nataraja Naicken v. Ayyaswami Pillai, 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 Contract Act.
9. On the question whether defendant 1's payment of Rs. 23 on 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 Chinnaya Nayudu v. Gurunatham Chetti and that in Saroda Charan Chuckerbutty v. Durga Ram De Sinha(14) are conclusive as showing that a manager can acknowledge liability of the members of the family which he or she represent so as to extend the period of limitation against them as well as against himself or herself.
10. I agree with my learned brother in holding that the civil revision petition shall be dismissed with costs.
S.N/R.K
11. Petition dismissed.