M.V. Maya Nadan and Brothers vs Arunachallam Chettiar

Victor Murray Coutts Trotter, C.J.—Whatever difficulty there may be in this case arises in my opinion, not from any doubt or uncertainty as

to the legal principles applicable to it but in the application of those principles to so complicated a thing as the type of signature in vogue among

Nattukottai Chetty firms or indeed at times among Nattukottai Chetty individuals.

The suit is brought on a promissory note dated 20th February, 1911. The liability of the 1st defendant is sought to be enforced on two grounds;

(1) that the signature to the note is on the face .of it an unqualified assumption by him of personal liability; (2) that in any event, if the signature be

held to be merely that of a firm, he was in fact a partner in that firm or alternatively held himself out as being such. The 1st defendant''s name is

Arunachallam Chetty and he is the son of a man called A. Ponsivalai Chetty. There is no doubt that A. Ponsivalai Chetty entered into partnership

with a firm trading under the Vilasam of ""V.M.A.C. and Sons"", and that partnership unquestionably traded under the style of ""V.M.A.C. and Sons

and A.P.""--See for example, Ex. I. There is also no doubt that the partnership gave a power-of-attorney to Arunachallam to act as agent for the

partnership, Ex. VI. If, therefore, he signed the promissory note with the partnership signature and merely added his own name, the inference

would be irresistible that the operative signature was that of the firm and that he merely added his own name as agent. It is true that he added no

qualificatory words such as ''agent'' or ''by'' or ''per pro'' but documents in that form are executed by Nattukottai agents every day and are

universally understood to be the firm''s signature merely vouched as such by the agent'' who adds his'' own name. The learned Judge took that view

and held that the signature should read as if it were written ""V.M.A.C. and Sons and A. P."", (firm''s signature) ""Arunachallam Chetty"" (agent''s

signature). The appellant''s case is that the signature should be read entirely differently thus:

V.M.A.C. and Sons"" (one signature) and ""A.P. Arunachallam Chetty"" (another signature). In plain English, does the A. P. attach itself to what

precedes or what follows? To my mind, the ''''and"" (which is . not written in Tamil, but in the ordinary English abbreviation ''&''. clearly links up the

A.P. with what precedes, and I, therefore, agree with the learned Judge that the signature on the face of it makes the partnership firm of

V.M.A.C. and Sons and A. P."" liable, and excludes the personal liability of Arunachallam. I am not sure how far I am entitled to look outside the

signature itself to construe it, but as both sides have invited us to do so, I will briefly state what conclusions I would be prepared to draw from the

only two sources that appear to me to be in any conceivable way relevant. The first is the words used in the body of the promissory note sued

upon itself. It is unfortunate that the Tamil has clearly been mistranslated, but that does not really affect the present question, because the

promissory note cpntains the clearest possible recital that the debtors are the firm trading under the style of ""V.M.A. Chinnappa Chetty and Sons

and A. Ponsivalai Chetty."" If I am at liberty to look at Ex. B the result is the same. That is dated the 11th February, 1918, and was the formal

application for the very loan in respect of which the suit promissory note was executed. It is signed in practically the same way: ""V.M.A.C. and

A.P. Arunachallam Chetti"". But the heading is unequivocal, ""V.M.A. Chinnappa Chettiar. A. Ponsivalai Chetty writes""--a clear intimation that the

application for the loan was for a loan to the firm of ""V.M.A.C. and Sons and A P.

The whole difficulty has arisen from the fact that Arunachallam at times put his fathers'' initials in front of his own name when he undoubtedly

meant to be signing for himself and nobody else. See for example, his affidavit in the subsequent insolvency proceedings, Ex. IV. That, it seems to

me, would at best found an estoppel against him, and in order to found that estoppel, it would have to be shown that such a signature existed which

was (a) prior in date to the suit promissory note and (b) brought to the notice of the appellants. If I am right in my construction of Ex, B there is no

document on the record which fulfils the first of these requirements let alone the second.

The next point taken was that the 1st defendant was a partner in fact or by estoppel. That he was not a partner in fact is conclusively shown by

this. Whereas he was at first adjudicated an insolvent along with the other members of the firm of ""V.M.A.C. and Sons and A.P.;"" on the true facts

being brought to the knowledge of the High Court, his adjudication was annulled, and the decision was not appealed from. Indeed it never rested

on anything more solid than the mere statement of the appellants. The estoppel can only be based on the very documents which we have held not

to reveal him as other than an agent.

A fresh point was taken in appeal, seeking to rest the liability of all the defendants on the pious obligation of the sons to pay the father''s debt.

The remedies available against the father (which for this purpose must mean A. Ponsivalai Chetty) have been pursued against him and a

considerable dividend realized and he has obtained his discharge. When the obligation of the father is ended that of the sons goes with it.

In the result the appeal is dismissed with costs.

Ramesam, J.

I agree with my Lord''s judgment just delivered but on the second point raised I wish to add a few words. In the first place it is contended that

Section 45(4) of the Presidency Insolvency Act applies, and, therefore, the order of discharge does not release the 1st defendant who continues to

be liable. It is conceded that the 1st defendant is not a partner or a co-trustee with Ponsivalai Chetti nor was he jointly bound nor had he made any

joint contract with him. It is also conceded he was not a surety but it is said that he was in the nature of a surety for Ponsivalai Chetty. On this point

the decision in A.R.P. Narayanan Chetti and Others Vs. Kana Pana Veeanna Rana Virappa Chetti and Others, is against the appellant. It was held

in that case that where the father is discharged under the Straits Settlements Bankrupts Ordinance by the Supreme Court at Singapore, the

extinguishment of the debt operated as discharge everywhere and the creditor had no right to sue in India the debtor and his undivided sons for the

balance of the debt as if it was still subsisting. I do not see any reason to differ from that decision. It would have been different if a decree had been

obtained against the son or even against the father prior to the insolvency, in which case it may be possible for the creditor to seize the joint family

property in the hands of the son in execution proceedings. [See Brij Narain Vs. Mangla Prasad, ]

But apart from this, there seem to be other difficulties in the way of the plaintiff. The plaint does not allege that the 1st defendant is liable on the

ground that though the debt was contracted by the firm of ""V.M.A.C. & Sons and A.P."", the 1st defendant being the undivided son of Ponsivalai

Chetty and being in possession of the joint family property is liable for the suit debt. Paragraph 9 of the plaint merely refers to the liability of

defendants Nos. 2 to 6 as the undivided sons of the 1st defendant on the ground that defendant No. 1 and his sons 2 to 6 form an undivided family

of which the 1st defendant is the manager. It has nothing to do with the liability of the 1st defendant on the ground of the larger joint family of which

Ponsivalai Chetty is the manager. If the liability of the 1st''''defendant is based on the ground that he is the son of Ponsivalai Chetty and the debt is

not illegal and immoral and that he is liable along with his father even during his lifetime Brij Narain Vs. Mangla Prasad, ] the reply is that when the

father is discharged the son cannot continue to be liable, the son''s liability depending for its existence on that of the father. [See Mayne''s Hindu

Law, page 399, 9th Edition.] When this was pointed out, Mr. Srinivasa Gopalachari abandoned his contention and was content to rely not on the

special ground that the 1st defendant is under a pious duty to discharge his father''s debts but on the ground that he is a member of the joint family

who had-the benefit of the partnership like other members such as the brothers of Ponsivalai Chetty. But if it is rested on this ground the whole

plaint has to be re-cast. There are no allegations that the business carried on by Ponsivalai Chetty was an ancestral business ""and is, therefore,

prima facie binding on all other members of the family. If it is not ancestral it must be shown that the business resulted in some benefit to the family

and that the other members participated in such benefit. [See Sanyasi Charan Mandal Vs. Krishnadhan Banerji, .] Unless it is shown that other

members were admitted to the benefits of the partnership they are not liable for the debts of the firm. The share of the other members of the family

who were not directly partners is merely the right to participate in the property of the firm after the obligations have been discharged. There being

no allegations in the plaint on these matters, to allow it to be amended at this stage will be to alter its character entirely and start a fresh trial de

novo. We see no reason to allow this. The result is, the appeal is dismissed with costs.