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ANNAMALAI CHETTY v. MENIKA et al.
NLR20V407
[FULL BENCH.]
Present: Bertram C.J., Ennis and De Sampayo JJ.
ANNAMALAI CHETTY v. MENIKA et al.
190-C. R. Kurunegala, 177.
Joint promissory note-Right of action against survivor and executor or
administrator of deceased maker.
A holder of a joint promissory note cannot sue in one action both the surviving
maker and the legal representative of the estate of the deceased maker.
THE facts appear from the judgment.
G. Koch, for appellant.-This is a matter of procedure, and not of substantive
law. The two joint makers are jointly liable during their lives. Why should the
estate of a joint maker be not liable when he is dead? We are not governed by
English rules of procedure (Mudalihamy v. Punchi Banda 2).
[DE SAMPAYO J.-Under the English common law only- the survivor is liable.]
The Bills of Exchange Act does not enact that the survivor alone is liable. We
are governed by the Bills of Exchange Act, and not by the English common law.
1 4 Man. & G. 860.
2 (1912) in N. L. R. 350.
DE SAMPAYO J.-The Bills of Exchange Act does not deal with this point, because
it is part of the common law.]
Under the English law an executor or administrator can be brought into the
action. The object of law is to prevent multiplicity of actions. The debt is not
extinguished.
All the joint makers must be sued altogether. Otherwise the right of action
against the person not joined as defendant is barred (Manuel Istaky v. Sinnatamby
1).
Counsel also referred to Muttiah Chetty v. De Silva 2 and Vattiappa Chetty v.
Sinnatamby . s
Chief Justice referred counsel to Williams on Executors, vol. 2, 10th edition,
p. 1375; Lindley on Partnership, 7th edition, -p. 664; % Summer v. Powell;
Jones v. Beach;5 and Rawstone v. Parr 6
Batuwantudawe (with him H. V. Perera), for respondent.
November 27, 1918. BERTRAM C.J.-
This was a case reserved by my Brother Ennis for the opinion of the Full Court,
raising the interesting and important point whether our rules of procedure
established by the Civil Procedure Code enable a person, who is the holder of a
joint promissory note-one of the makers of which is dead-to sue in one action
both the surviving maker and the estate of the deceased maker. It appears that
express provision has been made for this purpose by section 42 of the Indian
Contract Act, the terms of which are as follows: " When two or more persons have
made a joint promise, then, unless a contrary intention appears by the contract,
all such persons during their joint lives, and after the death of one of them,
his representative jointly with the survivor or survivors, and after the death
of the last survivor, the representatives of all jointly, must fulfil the
promise."
It is established in English law (which is the law governing negotiable
instruments in this Colony) that, where a promissory note is made by two persons
jointly, and one of them dies, the liability survives to the other, and the
estate of the party dying is discharged. This is a principle not confined to
promissory notes alone, but applicable to all joint obligations. The Courts of
Equity in English law have worked out a special exception in the case of
partnership debts, where one of the partners is dead and his estate is
undergoing administration, and, as is explained in Lindley on Partnership, 7th
edition, p. 664, it is now possible for a creditor of two partners to sue the
surviving partner directly, and the estate of the deceased partner indirectly,
in a single action. He can in that action recover his debt in such a form as may
ultimately be found convenient from both his surviving debtor and the estate
| 1 (1910) 13 N. L. R. 284. | 4 (1816) 2 Merivale 37. |
| 2 (1890) 2 N. L. R. 109. | 5 (1852) 2 De G. M. & G. 886. |
| 3 (1894) 1 N. L. R. 350. | 6 3 Russ. 539. |
of the deceased. Various reasons have been assigned for that principle, which it
is not necessary for us here fully to discuss. But the only questi
