Thangatur Subbarayudu vs Nichanametla Subbarayudu and Another

Pandrang Row, J.—This is an appeal from the order of the District Judge of Cuddappah, dated 4th April 1932, on an appeal from the

decree of the District Munsif of Prodattur, dated 12th August 1931, dismissing the suit (No. 119 of 1931) instituted by one Subbarayudu for

recovery of the amount due on a promissory note executed by defendant 1 in favour of defendants.

Defendant 2 is the adoptive mother of the plaintiff. Disputes arose between them sometime after the promissory note was executed in favour of

defendant 3 and the disputes were referred to certain arbitrators in January 1930. The arbitrators delivered an award in September 1930, and the

award was subsequently registered in the same month by the District Registrar of Cuddapah. It may also be stated in this connexion that the suit

promissory note was actually delivered to the plaintiff by the arbitrators, because under the award this promissory note as well as certain other

oustandings were allotted to the plaintiff''s share in the-partition made by the arbitrators. On 17th October 1930, the plaintiff sent a. registered

notice to defendant 1 demanding payment of the amount due on the promissory note, to which defendant 1 sent a reply stating that he had already

paid on 17th October which happens to be the very date-on which the registered notice was sent-a sum of Rs. 1,500 to defendant 2. The

plaintiff''s case was that defendant 1 was aware of the award even before he sent the registered notice, that the payment of Rs. 1,500 pleaded by

him was not true and that both the defendants had colluded together in order to cause loss, to the plaintiff. Defendant 2 was impleaded on the

further ground that there was a provision in the award whereby he was liable to make good any loss which the plaintiff might sustain, if she failed to

endorse the promissory note in favour of the plaintiff.

It appears from the written statement of defendant 2 that a suit had been filed by the plaintiff in 1930 in the District Court of Cuddapah, namely,

O.S. No. 4 of 1930, in which the validity of the award was disputed by defendant 2, the suit being based on the award. Of course the question

whether the award is valid or not has to be decided in that suit, but for the purpose of the present appeal it must be assumed that the award is

valid. The District Munsif framed two preliminary issues, the first being whether the suit is maintainable in the absence of an endorsement on the

promissory note in favour of the plaintiff, and the second being whether the suit is not bad for misjoinder of defendants and of the causes of action.

The first preliminary issue was found against the plaintiff though issue 2 was found in his favour and as a result of the finding on issue 1 to the effect

that the suit is not maintainable in the absence of an endorsement, the suit was dismissed by the District Munsif with costs. On appeal the District

Judge disagreed with the view taken by the District Munsif on the preliminary point of the maintainability of the suit and was of opinion that the suit

was maintainable in the absence of an endorsement. He accordingly reversed the decree of the lower Court and remanded the suit to the lower

Court for disposal according To law. The present appeal is from this order of remand.

The only point raised in the present appeal therefore is whether the suit is maintainable in the absence of an endorsement thereof in favour of the

plaintiff. The learned District Judge has given very good reasons in support ,of his conclusion and I have no hesitation in concurring in his view. The

award which is relied upon by the plaintiff operated in my opinion as a transfer inter alia of the suit promissory note from defendant 2, the payee

mentioned therein to the plaintiff. The further provision in the award that defendant was to endorse and hand over the promissory note in the name

of the plaintiff in order that there may be no obstacle to the plaintiff''s realizing the amount due under the same, does not operate so as to make the

transfer conditional on such endorsement or postpone the effect of the transfer till such endorsement is actually made. This provision is in my

opinion an additional and a further provision made with the object mentioned therein, namely, in order to facilitate the collection of the amount due

under the promissory note by the plaintiff and to give him a further right to claim indemnity from defendant 2 for any loss which he might sustain by

reason of the failure of defendant 2 to endorse the note in his favour. There can be no doubt that the effect of the award, which allotted the suit

promissory note among after things :to the share of the plaintiff, was to transfer the property in the suit promissory note to the plaintiff, and the

plaintiff is therefore entitled as the owner to maintain the suit on the promissory note. It is not necessary to refer to any of the decisions quoted

during the argument in this appeal, except perhaps to the one that is reported in Amir Bi Bi v. Arokiam 1919 Mad 1113 which deals specifically

with the effect of an award.

I therefore find that the suit is maintainable in the absence of an endorsement. It follows therefore that the order appealed from is right and that

this appeal must fail. It is accordingly dismissed with costs.