SATHIADEV


All the appeals and memos of cross-objections have been preferred against a common judgement delivered by Sub Court, Dindigul in O.S.453 of 1973 and 70 and 125 of 1974. In the three suits parties are the same, and plaintiff has filed these suits in respect of four promissory notes i.e. Ex. A-1 dt. 26-6-1970 for Rs. 30,000; Ex. A-2, dt. 28-11-1970 for Rs. 30,000; Ex. A 3 dt. 5-3-1971 for Rs. 7500 and Ex. A-4 dt. 1-3-1972, for Rs. 10,000. All of them were executed by one Rev. Mar Thomal Dionysius, Metropolitan of Niranam and founder President of the Society of the Order of Sacred Transfiguration, Mount Taber, Pathanapuram, a society started in 1922, and registered under Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. It was impleaded as first defendant, and it runs the second defendant College. Rev. Mar Thoma Dionysius (hereinafter called as promisor) executed Exs. A-1 and A. 4, in favour of one Dhanabalar, the brother of the plaintiff and Exs. A.-2 and A. 3 in favour of the father of the plaintiff. The promisor died on 3-12-1972, and it is the third defendant, who had succeeded him as the President of the Society. The promisees in turn assigned the promissory notes in favour of the plaintiff on 25-9-1973, and in turn he issued the suit notices on 3-10-1973 (Exs. A. 24 to A. 26) and as the amount had not been paid, the three suits were instituted. O.S. 125 of 1974 pertains to Exs. A. 1 and A. 4.


2. In the plaint, it is claimed that the amounts were borrowed by promisor for the purposes of institutions run by him and they were advanced at a time when he was contemplating to sell Ponniah High School at Tiruchi and proposing to buy, what is known as Vizhukkan Parai Estate, which belonged to father of plaintiff, who had been examined as P.W. 1. He had deputed his brother Mowthannan Rowtyer for the purchase of the estate, and during the period of negotiations, the promissory notes were executed for valid consideration passed. After his death, third defendant had made an endorsement, Ex. A. 7 on 24-5-1973 on Ex. A. 1 by paying a sum of Rs. 250.


3. Third defendant, whose stand is adopted by defendants 1 and 2, claimed that, there was no necessity for promisor to borrow any amounts for the institutions and he had no authority to borrow binding the said institution. The rules and regulations had not enabled him to borrow any amount binding defendants 1 and 2, and when the governing body had not authorised him to do so, the suit claims are not binding on any of the defendants. Accounts maintained do not refer to these borrowings, and as third defendant was not aware of the execution of any of the Ex. A. 7, at a time when third defendant was proceeding from Calicut to Kottayam, he was stopped at Kottakkal by plaintiff's men, who forced him to make the endorsement, and to avoid embarrassment he paid a sum of Rs. 250 and made the endorsement, and therefore, it is not binding upon him.


4. In the reply statement, plaintiff reasserted that the promisor, as head of the institutions, was borrowing the amounts for their benefit, and on 11-11-1973, these promissory notes were shown to their advocate, D.W. 2, and that Ex. A. 7, endorsement was made voluntarily, and that as the assignments had been validly made, the Court had the jurisdiction to try the suits.


5. Trial Court decreed the suit claims in respect of Exs. A. 1 and A. 2 and rejected the claims based on Exs. A. 3 and A. 4.


6. The points arising for consideration are -


(i) Whether Rev. Mar Thomas Dionysius-promisor was authorised to borrow under these promissory notes for the benefit of the first defendant-Society and for the institutions run by it ?


(ii) Are all the promissory notes genuine, true, valid and supported by consideration ?


(iii) Whether Ex. A. 7 endorsement was validly made or not ?


7. On the first point, defendants would submit that they cannot be made liable for any of the borrowings made by promisor, as he had no authority to bind any of the defendants, because according to the regulations obtaining, it is only the general body that could authorise such borrowings, and factually no part of the borrowed amount having been credited to the institution, and the promissory notes themselves stating that he had borrowed for his family expenses, the suit claims have to necessarily fail. In Exs. A.2 to A.4, it is also stated that the borrowing was for College expenses, and there being no apportionment made and proof adduced as to whether any portion of the amount had been spent for the institution, Court below was in error in decreeing the claims based on Exs. A.1 and A.2.


8. Third defendant, D.W. 1, clearly admits that promisor was the founder of the institutions and he had put up the buildings. He would further admit that both defendants 1 and 2 were under his control and management and he had known him from 1940 and he was an orthodox, pious and dutiful Bishop, who had no family of his own, and there was nothing against him till his death. D.W. 3, one of the father's in charge of the institutions at Pathanapura and other places, conducted by first defendant, also admits that promisor had no family of his own, and as Bishop he had come out of his family and he had brothers and sisters and that as President of first defendant-Society, he had control over the institutions and that it was he who purchased the High School at Tiruchi, and sometimes sold properties for the benefit of the institutions. He also speaks about himself attesting Ex. A.1 and that he cannot deny the borrowal of the said sum by promisor, and that defendants are not liable to pay the amounts under Exs. A.2 to A.4. He also speaks about negotiations being made by promisor for sale of school at Tiruchi and purchase of property through Mowthannan Rowther, the broker and of borrowings made by him under the mortgage deed Ex. A. 31, which he had attested and the sum so borrowed was utilised for construction of second defendant-College. 1(a) Ex. B.18 is the Memorandum of Association of Society of the Order of the Second Transfiguration a Society started in, 1922 with the promisor as the Founder President for life. It was registered under Travancore Cochin Act XII of 1955. The regulations of the Society show that during his lifetime, under Cl. 11, he was authorised to manage. control and administer the Society, its properties and its institutions. Under Cl. 15, he was the ultimate authority in all religious and administrative matters wielding unquestionable authority. Cl. 16 states that the entire assets of the Society at the time of formation of the Society had been bequeathed by him. An unusual condition is found in Cl. 17 to the effect that, all the properties, movable and immovable standing in the name of a member at the time of his death, shall automatically vest in the President of the Society; Clause 18 states that all gifts, presents, etc. received by members shall also vest in the President. All bank deposits and other accounts of income and expenditure of the Society shall be in the. name of the President.


Under Ex. A. 29, the promisor purchased certain landed properties in his name and they were utilised by the school at Tiruchi. Under Ex. A.30; he sold a property in 1960, which was attested by D.W. 3, and it was also sold only in his name. Equally, when he executed a mortgage under Ex. A.31, which was also attested by D.W. 3, it was done only in the name of the promisor. Promisor died on 3-12-1972 and third defendant states that he had succeeded him as President of first defendant-Society.


9. It is thus crystal clear that, all movable and immovable properties belonging to members, on their death, would vest only in the President, and all the bank deposits and other accounts maintained by the Society shall stand only in the name of the President. He had unquestionable authority to manage, control and administer the entire properties and institutions of the Society. Hence, the defence put forth, as if regulations contemplate that the Governing Body alone is authorised to borrow on behalf of the Society and non else, is without any basis. As for first defendant and institutions under its control and management, sales, mortgages were effected and purchases were made and borrowings have been done, only in the name of the President, and all such transactions were treated as binding on the Society.


9A. Mr. T.R. Ramchandran, learned counsel for defendants points out that, in Ex. A. 1, it is mentioned that it was a borrowing for the family benefit of the promisor, and in the light of the decisions rendered in M.M. Abbas Bros v. Chethandas, 1979 AIR(Mad) 272, Sadasuk Jankidas v. Sir Kishen Pershad, 1918 (46) ILR(Cal) 663 : 1918 AIR(PC) 146), Oriol Industries Ltd. v. Bombay Mercantile Bank Ltd., and Rangaraju v. Firm Devichand Bhootaji, 1945 AIR(Mad) 439 : (1945) 2 Mad LJ 113, unless there is an indication on the face of the instrument itself that it was for the benefit of the Society or any one of its institutions, the liability under Ex. A. 1 cannot be fastened on defendants. All the promissory notes were executed in printed forms containing the words, (vernacular omitted). In the other three promissory notes, apart from these words in the blank portion - (vernacular omitted) is included. In the last of the decisions relied upon by him, it is stated that, there must be some indication in the instrument itself to show about the liability of the concerned partner or the company as the case may be, but in view of the decision in Sivagurunathan v. Padmavathi, 1941 ILR(Mad) 513 : 1941 AIR(Mad) 417) (FB), it is not as if the instrument alone that could be looked into. The authority invested in the person to bind the affair of an institution would also be relevant. Admittedly, promisor had no family of his own, and since 1940, as a sincere and devoted Christian, he had been acquiring and disposing of properties in his name, solely for the benefit of the institutions, and the expression (vernacular omitted) in Ex. A. 1 is referable to the only expenditure he was incurring in his life it being for the benefit of the Society and its institutions. The relevant clauses of the regulations already referred to, categorically establish that every property of the President belongs only to the Society.


10. On the other plea that plaintiff had no proved as to how amounts borrowed have been apportioned as between the two purposes mentioned in the promissory notes. As already stated, the promisor had no family of his own and the only one he could think of are the institutions as his family, and as for the other purpose Exs. A. 2 to A. 4, it is stated that it was for the purposes of the College. In Ex. A. 1, when he states that the borrowal was for his personal purpose, it was only for the purpose of the institutions, because D. W. 3 himself admits about this amount having been borrowed, and would state that the defendants are not liable only for the amounts due under Exs. A. 2 to A. 4. He had attested Ex. A. 1. Thus, it is clear that the promisor had the necessary authority to execute Exs. A. 1 to A. 4 for the benefit of the defendants 1 and 2 and make them binding for the due performance of these promissory notes.


11. On the second point, as for Ex. A. 1 is concerned, D.W. 1 admits that it bears the signature of promisor. P. W. 2 has spoken about the letter dt. 12-10-1970 Ex. A. 10. In this letter, promisor himself in his handwriting had stated that he would'pay back the amount of Rs. Thirty thousand originally given to me at Trichinopoly hospital'. Ex. A. 8 dt. 18-9-1970 refers to the loan which ought to have been returned on time. In the face of such admissions made by promisor, and the signatures thereon not being disputed by D. Ws. 1 and 3, the genuineness and the validity of Ex. A. 1 is being unfortunately disputed by the Christian Society, which is not expected to take such a stand.


12. As for Ex. A-2, promisor writes on 10-10-1970 Ex. A-9 asking for a loan of Rs. 30,000, and this was written subsequent to Ex. A-1. In Ex. A-10, after referring to the first loan of Rs. 30,000 (Ex. A-1) he states'this second loan will be received by me here, since I have been medically advised for complete rest on account of blood pressure". He writes this from his sick room at Pathanapuram. This was followed by a telegram under Ex. A-11 asking for the amounts. Ex. A. 2 is attested by P.W. 2 and Mouthannan Rowther who was negotiating on behalf of the promisor. Defendants have not chosen to examine Mouthannan Rowther. It is based on the request made under Exs. A-9 to A-11, the amount of Rs. 30,000 was paid on 28-11-1970 under Ex. A-2 and P.W. 2 speaks about the passing of consideration at Pathanapuram. In Ex. A-12, dt. 13-1-1971, written after Ex. A 2, he states that he would try to clear the debts as promised by the time he had borrowed under Exs. A-1 and A-2. Though defendants have come forward with a claim that the signature in Ex. A-2 is disputable when promisor himself had indicated that he was taking the amount as a second loan as found in Exs. A-9 to A-11, it is unfortunate that first defendant had taken such a defence bringing a disrespect to the institution.


13. As for Ex. A3, this is also preceded by a specific request made by promisor as found in Exs. A12 and A13. In Ex. A12, D/-13-1-1971, he refers to the condition of his car, which requires a repair of not less than Rs. 5000 and that Mounthannan Rowther will explain things personally. This was followed by Ex. A13, D/-16-1-1971, asking for a loan of Rs. 7000, to be sent through Mowthannan Rowther, which is required for paying repair charges of the car. On such request made. P.W. 2 had gone to Pathanapuram and paid the amount to him in the hospital. Here again, Mowthannan Rowther is one of the attesting witnesses, but he been kept back by defendants. the signature of the promisor in Ex. A3 is being disputed. The evidence of D.W. 5, the Doctor, who was attending on the promisor between 25-2-1971 and 15-5-1971 is relied upon to plead that none could have had access to him. He also states that promisor was given the last sacrement.


14. It is not disputable that promisor was in need of Rs. 7000 for repairing his car, which was being used for the benefit of the Society, and the evidence of P.W. 2, that he had gone to the hospital and paid the amount to him could not be dislodged by defendants in cross-examination, What could be elicited from him in this regard was that he was unaware of the duration of treatment undergone by the promisor in the hospital and that he does not know the name of the heart specialist and the room number in which he was undergoing treatment. He had stated that nurses were present when the amount was paid to the promisor, but their signatures had not been taken. When Mowthannan Rowther had attested it and his signature having not been disputed, and in Ex. A13, promisor himself having stated that the said amount could be sent through Mowthannan Rowther, there is a preponderance of material to uphold the due execution of Ex. A3. It is commented that though the request was for Rs. 7000, Rs. 7500 had been paid and that there are no similarities between the signatures in Exs. A1 and A3. An higher amounts of Rs. 500 taken in March over and above a sum of Rs. 7000 demanded in January, is not improbable when promisor had stated in Ex. A13 that the repair charges for the car would be about Rs. 7000. As for dissimilarity attempted by court below, when he was undergoing treatment, and when D.W. 5 would go to the extent of saying that he was in serious condition, the marginal dissimilarity in signature is inevitable. Hence, the finding of the court below on Ex. A3 is hereby set aside.


15. As for Ex. A4, this is again preceded by two letters written by promisor under Exs. A15 and A17. He had recovered from his illness by May, 1971, and lived for 18 months more. Ex. A15 was written on 3-12-1971, stating that all his transactions were dislocated for about 8 months due to illness and that on sale of Tiruchi High School, he would pay to the plaintiff's father and others' their dues. Under Ex. A16, D/-19-2-1972, he had asked for a hand loan of Rs. 10,000, and mentioned about Rowther speaking to plaintiff's father about it. Based on such a specific request made, the amount of Rs. 10,000 under Ex. A4, D/-1-3-1972, was advanced by the brother of plaintiff. One Rev. Father Daniel had attested it, but defendants have not chosen to examine him, whereas P.W. 2 speaks about passing of consideration. Here again, court below had attempted to show that the signature therein does not tally with the one found in Ex. A1. Due to advanced age, and after a serious illness, a settled signature of a person changes marginally. Exs. A3 and A4 are identical. Yet, one other aspect touched upon is about letters sent by plaintiffs father preceding the advance of loans under Exs. A3 and A4 stating that funds are not available, and hence, they are not supported by consideration. It is not the case of defendants that Pandya Nadar or Dhanabalan, the father and the brother of plaintiff did not have the means to advance these amounts. Any creditor, when further loans are asked, usually states like that, and yet, thereafter advances loans. Hence, none of the pleas of defendants in this respect being entertainable, the finding of the Court below that Ex. Al is unsupported by consideration and was not executed by promisor is hereby set aside.


16. The third point is that the endorsement Ex. A7 on Ex. A1 was taken under coercion. It is not known as to why such a claim ought to have been made, when admittedly, Father Abraham had taken P.

Ws. 1, 2 and 4 and one Sivaraman, on instructions given by Father Zackariah, D.W. 3, to show them the third defendant. D.W.3 admits that they came regarding Exs. A1 to A4 and that he asked Abraham to take them to Calicut, where D.W. 1 was then staying. On their way, at Kottakkal, Father Abraham saw D.W. 1, coming by car, and he stopped it. On seeing Exs. A1 to A4, an endorsement having been taken to save limitation and admittedly a sum of Rs. 250 having been paid, and signed by him, D.W. 1 had made an untrue claim that it was taken by coercion. He had not examined Father Abraham. Evidently, he had chosen to remain truthful. This claim had not found acceptance by the Court below, and no valid reason exists to differ from it. 17. Yet another plea taken is that, the accounts of second defendant do not disclose any entries of these borrowings. D.W. 4, a clerk of College produced only its day books, but strangely states that he does not know whether Society is maintaining accounts or not, though he admits that College receives amounts from it. D.W. 1 says that there are accounts for the receipt and expenditure, and he is now the President of Society and knowingly they are not produced them (sic). Non production of such accounts leads to the inference that relevant entries exist in the account books of the society. Promisor was borrowing for Society and for benefits of its institutions, and presently D.W. 1 is doing likewise. Court below has held that promisor had borrowed for benefit of the institutions alone under Exs. A1 and A2. Hence, now that all the four promissory notes are held as true and valid, the sums drawn thereunder are binding on defendants. No personal decree is passed against third defendant. 18. Hence, A.S. 140 and 141 of 1979 are dismissed and A.S. 479 of 1970 and Memorandum of Cross Objections in A.S. 140 of 1979 are allowed. Cost in each of the four cases ordered throughout. Therefore all the three suits are decreed with costs.