Vushthepalle Swami Setti vs Dandu Lakshmireddi and Another

Wadsworth, J.—This appeal arises out of an application by the appellant, a mortgagee, praying the Court to scale down the debt due to the

appellant by the respondents under a mortgage deed, Ex. P-l. The application is filed under the rules framed under Madras Act 4 of 1938. The

history of the transaction may be briefly summarised. in 1927, the respondents executed a promissory note for Rs. 5000 in favour of the appellant

and one Ranga Reddy. It appears that the appellant and Ranga Reddy were at that time members of an unregistered partnership. In 1932, after

payments had been made towards this promissory note, there was a renewal in favour of the same parties for a sum of Rs. 4385. Apparently there

was a dissolution of partnership or an agreement to divide the joint assets between the appellant and Ranga Reddy , as a result of which this debt

fell to the share of the appellant. As a consequence of this arrangement, the respondents on 12th April 1931 executed a mortgage in favour of the

appellant for Rs. 6000 which comprised Rs. 5099-12-0 due under the promissory note of 1932 in favour of the appellant and Ranga Reddy,

together with two other sums with which we are not immediately concerned. The lower Court has taken the view that the mortgage must be treated

as a renewal of the antecedent indebtedness under the promissory notes and has inferred that there was an assignment by reason of the dissolution

of the unregistered partnership between the appellant and Ranga Reddy. It seems to us quite clear that there was no legal assignment so far as the

evidence before us goes. There was no endorsement on the note and no document assigning the note to the appellant has been put into evidence or

is alleged to exist. It has however been argued that because the appellant was a creditor under the antecedent promissory notes and because he is

the creditor under the mortgage, the creditor under the mortgage is the same creditor as the creditors under the promissory notes, so as to bring

into force the Explanation to Section 8 of the Act. This argument has been reinforced by pointing out that one of the two joint promisees under the

antecedent promissory note could have given a valid discharge, having regard to the decision of the Pull Bench in Annapurnamma v. Akkayya

(1913) 36 Mad. 544. There is no doubt that we have repelled the contention that where a debt is in the name of a benamidar the real owner can

be deemed to be the creditor, by applying the criterion whether the real owner could give a valid discharge. This does not however mean that the

power to give a discharge is the sole criterion to be applied in order to find out who is the creditor under a promissory note in the name of two

persons. It has been pointed out that the power of one of two joint promisees to give a discharge, recognized by the Full Bench with reference to

the provisions of Section 38, Contract Act, is a very limited power extending only to the acceptance of an offer of full payment of the debt. It was

held in P. Ramaswami and Others Vs. Chandra Kotayya, that one of two joint promisees could not give a discharge by taking a fresh document in

his own name. It is moreover clear having regard to the provisions of Section 45, Contract Act, that one of two joint promisees has not the power

to claim performance of the contract without impleading his co-promisee, and it seems to us that in deciding the question who is the creditor under

a promissory note we must have regard not only to the power to grant a valid discharge but also the power to enforce performance of the contract.

It follows from this reasoning that the antecedent promissory note which could be enforced only by the two promisees jointly was a debt, the

creditor of which was two persons and not one. It follows that the mortgage in favour of one alone of two persons is not to the same creditor as

the creditor under the antecedent promissory note. In this view we allow the appeal with costs in both Courts and give a declaration that the

amount due under the suit mortgage will be as claimed by the petitioner, namely, the principal amount of the mortgage with interest at five per cent

up to 22nd March 1938 and thereafter at 6 1/4 per cent.