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Judgment
Harries, J.—This is a first appeal by the plaintiffs from a decree of the learned Subordinate Judge of Puri decreeing their claim in part. The suit was brought by the plaintiffs to recover a sum of Rs. 9710 said to be due on a promissory note, dated 8th August 1927 executed by defendant 2 who was the mahant of Dakshin Parswa Math. It was alleged that the mahant was the shebait marfatdar of the deity Lord Jagannath, and the latter was impleaded as defendant 1, the allegation being that the mahant signed the promissory note as shebait or agent of Lord Jagannath, and therefore the latter was liable on the note.
The defence of Lord Jagannath, defendant 1, was that the deity could not be made liable on this note. The money, it was said, was not borrowed for any legal necessity, and therefore the deity could not be made liable, though the mahant, who borrowed the money, would be liable. The learned Subordinate Judge held that the deity was not liable and dismissed the claim as against defendant 1. He however decreed the claim against defendant 2. Being dissatisfied with the decree in so far as it dismissed the claim against defendant 1, the plaintiffs have preferred this appeal.
There can be no question that defendant 2 was clearly liable on this promissory note. He had executed it and it was not contested that he had received the consideration. The only question in this appeal is whether the deity, defendant 1, can be made liable. The suit is clearly one on the promissory note, and the question at once arises whether defendant 1 can be made liable in a suit based upon the note. The note has been translated, and the opening portion of the note is in these words:
Executed by,
The Mathadhipati of Dakshinparus Math Sri Mahant Jagannath Ramanuj Das, aged 21, chela of the late Mahant Sri Bhagaban Ramanuj Das, by caste Brahman Aohari, Sri Baishnab, by profession Bhajan Smaran, Lakhraj Zamindari &c, of Balisahi Dakshinparus Math, Town Puri.
To
Sri Mahadeb Ram, son of late Mohubut Ram, (2) Sri Rameswar, son of late Bridhi Chand, Agar-walla by caste, Mahajani &c, by profession, at present of Kalikadebi Sahi, Town Puri.
Handnote for Rs. 7000.
Then follows a recital as to how the amount of the handnote was made up, and the document concludes with these words:
I execute this handnote to you and agree to pay on demand the same with interest at one per cent, per mensem. Hence I execute this handnote thinking it would be of use when necessary.
The handnote was certainly executed by respondent 2 who describes himself as the mahant; but it is to be observed that he does not even describe himself as a shebait or any kind of agent of Lord Jagannath, defendant 1. There is nothing whatsoever on the face of the document to suggest that defendant 2 was contracting in such a way as to bind defendant 1. In those circumstances, can it be said that defendant 1 is liable in a suit upon the note?
Mr. M.S. Rao who has argued this case very fully on behalf of the appellants has relied upon the case in Sivagurunatha Pillai Vs. Padmavathi Ammal and Another, , in which a Full Bench of five Judges held that on the terms of a Tamil promissory note a person was liable other than the person who actually executed the note; The relevant portions of the note read as follows:
Promissory note executed in favour of A, son of B, by C, son of D, the husband agent under power of attorney of P, daughter of K. As you have obtained an assignment of the promissory note executed by me in favour of T, son of B, in respect of the debt due by S, my wife''s junior paternal uncle, the amount of principal and interest due is Rs. 3797-4-0. As I have received this sum in manner stated above I shall pay interest on the said sum at fifteen annas per cent, and pay you or order on demand the aggregate principal and interest.
The promissory note was signed by O without adding any words indicating the capacity in which he signed. The Full Bench held that in a suit based on the promissory note filed by A against P and C, P was liable. The Bench construed the note as clearly indicating that P was made liable under it. O was described as the agent under power of attorney of P and further the note itself described the reason for the borrowing. Taking all the circumstances referred to in the note itself, the Court was of opinion that the liability of P was indicated clearly by the note itself.
It appears to me that the Full Bench case of the Madras High Court is clearly distinguishable from the present case. As I have pointed out, there is nothing on the face of the promissory note sued upon in this case to suggest that Lord Jagannath, defendant 1, was in any way liable for the debt. Any one taking this note as a result of negotiation could never know that Lord Jagannath was in any way concerned in the matter. The present case is, to my mind, very similar to the case in Sadasuk Janki Das v. Kishan Pershad AIR 1918 P.C. 146 in which it was held by their Lordships of the Privy Council that no person is liable upon a hundi or bill of exchange unless his name appears upon the instrument in a manner which, upon a fair interpretation of its terms, shows that the name is the name of the person really liable. A statement after the signature of the drawer that he is acting Superintendent for another is merely descriptive, and does not make that other person a party to the instrument. At p. 36 Lord Buckmaster, who delivered the opinion of the Board, observed:
It is of the utmost importance that the name of a person or firm to be charged upon a negotiable document should be clearly stated on the face or on the back of the document, so that the responsibility is made plain and can be instantly recognized as the document passes from hand to hand
* * * * * * It is not sufficient that the, principal''s name should be "in some way" disclosed; it must be disclosed in such a way that on any fair interpretation of the instrument his name is the real name of the person liable upon the bill.
Applying these observations to the facts of this case, it is clear that defendant 1 cannot be made liable on this promissory note. There is nothing on the face of the document to suggest that Lord Jagannath is the real person liable upon the bill. Any person not closely acquainted with the affairs of this math could never know by looking at this note that Lord Jagannath was in any way concerned with the transaction.
One exception has been made to the rule laid down by their Lordships of the Privy Council, and that is in the case of a karta of a joint Hindu family. Their Lordships have held that a note signed by the karta, if he is acting on behalf of the ''family, does bind the family. That, however, is a special case which depends upon the peculiar position of a karta of a joint family in Hindu law. Up to the present that is the only exception that has been permitted, and, in my view, the provisions of the Negotiable Instruments Act and the case in Sadasuk Janki Das v. Kishen Pershad AIR 1918 P.C. 146 compel me to hold that any suit on this note brought against defendant 1 is bound to fail.
Even assuming that a suit could be brought upon this note against defendant 1, yet I am not satisfied that the liability of the latter has been established. The learned Subordinate Judge was satisfied that there was no legal necessity for these loans, and that being so, defendant 1 could not be made liable.
The note sued upon makes it clear that the sum of Rs. 7000 was made up of a sum of nearly Rupees 5000 said to have been expended on the sradh of the previous mahant and dues under an earlier note for Rs. 2500 dated 29th November 1926. This sum of Rs. 2500 was again due under two earlier hand-notes, one of Rs. 400 dated 30th November 1923, and another for Rs. 1100 dated 15th May 1924. It will be necessary shortly to consider whether legal necessity has been established for any of these loans.
Mr. Rao has urged that the expenses of sradh of is previous mahant are dearly legal necessity. That has been frequently held, and the proposition cannot be doubted. That, however, does not dispose of this case, because necessity has to be established that the mahant, in the circumstances, was entitled; to borrow for this object. The evidence, which the learned Subordinate Judge has accepted, shows that the income of this math was at least one lakh of rupees. The plaintiff himself gives that estimate, and that one can safely assume to be the minimum. The evidence also shows that on the date of the sradh a sum of well over Rs. 4000 stood to the account of the mahant in the books of the math. The plaintiff did say that on the day of the death of the mahant only some Rs. 500 stood to the new mahant''s credit; but it is clear from the evidence of a clerk of the math that between the date of the death and the date of sradh income to the extent of Rs. 6000 had been received, and there had been a borrowing to the extent of Rs. 9000. The learned Subordinate Judge was not satisfied that it was necessary to borrow any sum to pay for clothes and food for this sradh. It is difficult to understand why it was necessary to borrow nearly Rs. 5000 for that purpose when practically that amount was on the day of the aradh in the coffers of the math. Further, the learned Subordinate Judge was not satisfied that the sradh of the late mahant required such expenditure. The plaintiff said that he had seen books showing the expenditure on the sradhs of earlier mahants, but he could not say what the books disclosed and further did not even call for those books from defendant 2. It is true that the expenses of a sradh may be regarded as legal necessity, but that would not allow a mahant to spend far more than was needed for such a sradh. There is nothing in the evidence to suggest what the customary amount was for these ceremonies; and the learned Judge was not satisfied that all this money was required. In any event, he was satisfied that even if this money was required, there was money available to pay the expenses without recourse to borrowing. In such circumstances, I am wholly unable to say that the learned Judge was wrong in holding that there was no legal necessity for borrowing nearly Rs. 5000 for the expenses of the late mahant''s sradh.
Mr. Rao has pressed us strongly that we should infer that there was need for borrowing for these expenses, because the present mahant did not produce the books of the math. He was called upon to produce the books showing the expenses of the sradh ceremony, and these books he did produce; and these books show that on the date of the sradh the clothing and food could have been paid for without borrowing. It is to be observed that the mahant was not called upon to produce any other books. It was also urged that an inference should be drawn against defendant 2, because he did not go into the witness-box. It was said that he was ill and could not attend; but it is impossible to say whether that was true or not. However, a clerk who was in charge of the accounts was called, and he did produce such books as were called for from defendant 2.
For these reasons I am satisfied that the decision of the learned Subordinate Judge that no legal necessity was established for the sum of nearly Rs. 5000 expended on the sradh of the late mahant cannot be successfully challenged in this Court. (His Lordship then considered the evidence regarding the other two loans and came to the conclusion that legal necessity has not been proved for either of them and proceeded.) As legal necessity has not been established in respect of the three advances which are included in the promissory note sued upon, the claim against defendant 1 was bound to fail. The plaintiffs will, of course, have all the remedies which the law gives them against defendant 2.
The result, therefore, is that this appeal fails, and I would dismiss it with costs payable only to defendant 1.
Manohar Lall, J.
I agree.