The main legal point established in the judgment is that the liability of an executor under promissory notes is personal, and the appointment of a guardian for the property of Hindu minors, especially in the case of joint family property, has limitations.

Sadasiva Aiyar, J.

1. The defendants Nos. 1 to 4 are the appellants. The suit was brought upon two promissory notes, Exhibits D and E, executed by one Venkatachallam Pillai on the 9th October 1903 for Rs. 1,490, and on the 3rd October 1903 for Rs. 725 respectively. This Venkatachallam Pillai was the 5th defendant in the case, His lagal representatives (defendants Nos. 6 to 9; were brought on the record but they were exonerated by the judgment of the Court of first instance. They were not made parties either in the lower Appellate Court or in the second appeal to this Court. The liability of the executant, Venkatachallam Pillai, and his heirs need not, therefore, be directly dealt with in this second appeal.

2. The only question remaining in the suit is, therefore, whether the defendants Nos. 1 to 4 are liable on those two promissory notes, Exhibits D and E, executed by Venkatachallam Pillai. The sacoad promissory note, Exhibit H), was executed mainly for the interest due for three years on the first promissory note, Exhibit D. On calculation I fitil that of the Rs. 725 mentioned in this promissory note Exhibit E, nearly Rs. 630 is the amount of interest on Exhibit D, and the balance of Rs. 95 seems to have been borrowed for some purpose not disclosed.

3. Venkatachallam Pillai is executing the main pro-note Exaibit D describes himself in the body as the son of so and so and as the executor of the deceased Appukuttia Pillais family under the Will executed by the said Appukuttia Pillai. He also signs the promissory note as Venkatachallam Pillai, executor of Appakuttia Pillais family, and in Exhibit E describes himself similarly in the body of the document and signs merely as "executor Venkatachallam Pillai." In the plaint there is not a word mentioned that this executor of the Will of Appukuttia Pillai has got any right of indemnity against the estate of Appukuttia Pillai or the estate of the family or that the plaintiff is entitled to be subrogated to any such right of indemnity of Venkatachallam Pillai. The plaintiff seems to have felt that on a promissory note executed by an executor under a Will, the executor and his heirs alone are liable and that the estate of which he is the executor cannot be made directly liable. The law has been, in my opinion, finally settled to the above effect by the recent judgment of my learned brother and Abdur Rahim, J., in Swaminabha Aiyar v. Srinivasa Aiyar 38 Ind. Cas. 172 : 32 M.L.J. 259 : 21 M.L.T. 91 : 5 L.W. 323 : (1917) M.W.N 278, where they refer to the English and Indian cases on this point, including the case in Srinath Daivasihamani Pandarasannidhi v. Noor Mahomed Routhan 31 M. 47 : 17 M.L.J. 553 : 3 M.L.T. 95 to which the late Chief-Justice was a party. The plaintiff, thus feeling the weakness of his claim against the defendants Nos. 1 to 4 (who belong to Appukuttia Pillais undivided family), states in paragraph No. 10 of the plaint as follows: "If for any reason, defendants Nos. 1, 2, 3 and 4 should contend that they are not bound to pay any amount, the 5th defendant is bound to pay that amount." No doubt the first Court decided that the 5th defendant and his heirs are not bound and dismissed the plaintiffs suit as against them, but if the plaintiff, who put himself in the plaint on the safe side, wanted to continue to be on the safe side, he ought to have appealed against the judgment of the first Court exonerating the 5th defendant and his heirs or should at least have applied to the lower Appellate Court to have the 5th defendants heirs made party-respondents to the appeal, so that the Appellate Court might pass a decree against them if the defendants Nos. 1 to 4 were exonerated. The lower Appellate Court also seems to have felt the difficulty of making the defendants Nos. 1 to 4 (of whom the defendants Nos. 2 to 4 are minors) liable on promissory notes executed by a stranger in his capacity as executor of the Will of Appukuttia Pillai (the father of the defendants Nos. 1 to