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Present: Fisher C.J. and Drieberg J.
RAMASAMY PILLAI i>. VENGADASAMY.440—D. C. Badulla, 4,470.
Promissory note—Holder as agent of another—Action by holder—Death
of principal before trial—Civil Procedure Code, s. 647.
A promissory note' was given to A as agent of B. A sued themaker on the note. After the institution of the action and beforethe date' of trial B died.
Held, that the action was maintainable by A as holder of the note.
Held, further, A was not entitled to continue the action tilladministration had been taken out to B's estate.
^^PPEAL from a judgment of the District Judge of Badulla.
. Plaintiff sued the defendant for the recovery of a sum ofRs. 5,981.25 on a promissory note. It appeared that the plaintiffin taking the note acted as the agent of one Sinnatambia Pillai,whose power of attorney he held and to whom the money was duefrom the defendant. Sinnatambia Pillai died after the action wasbrought and before the date of trial. The learned District Judgeheld that the action was not maintainable as the plaintiff’s agencyterminated with the death of Sinnatamby Pillai and because hisestate had not been administered.
H. V. Perera (with Rajakariar), for plaintiff appellant.
H. H. Bartkolomeusz, for defendant, respondent.
July 9, 1929. Drieberg J.—
The appellant sued the respondent on a promissory note forRs. 5,981.25 made in his favour by .the respondent. The respond-ent said that the note was a forgery and denied that he receivedconsideration on it from the appellant. Issues were framed onthese points and evidence was led on both sides.
The learned District Judge later delivered judgment dismissingthe action. He did not give his finding on the issues of fact, butbased it solely on an issue which he had framed, viz., “ Is this actionmaintainable at law by the plaintiff ? ” He says that he framedthis issue as it appeared from the evidence that in taking the notethe appellant acted as the agent of Sinnatambia Pillai, whose
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power of attorney he held, the note being taken for money due to 1929.Sinnatambia Pillai. Sinnatambia Pillai died after the action wasj,
brought and before the day of trial. The trial Judge was of opinion
that the action was not maintainable for the reason that, the agencyof the appellant ended on the death of Sinnatambia Pillai and also v. Vengada-on the ground that his estate was unadministered (section 547 of the sam^Civil Procedure Code). For these reasons he dismissed the action.
It is a fact that the note was given to the appellant for moneydue to Sinnatambia Pillai when the appellant was his agent. Fullparticulars of the making of the note are set out in the affidavitof the appellant dated October 10, 1927.
The first of the reasons given by the learned District Judge is nota good one. Though the appellant acted as the agent of SinnatambiaPillai he took the promissory note in his own name and is the holderof it. An action on a promissory note can be brought only by theholder of it, and the holder is the payee or the indorsee, or the bearerof it if it is one payable to bearer (section 2, Bills of ExchangeOrdinance, 1927). On the death of the holder his title to the noteand the right of action on it passes to his executor or administrator(C. R. Matara No. 548 (Full Bench) l). Sinnatambia Pillai or hislegal representative could have become the holder of the note byobtaining the indorsement of it by the appellant or by compellingby action the indorsement of it, but the death of Sinnatambia Pillaicould not deprive the appellant of his position as the holder of thenote and his right of action on it.
From the appellant’s affidavit dated October 10, 1927, it is clearthat he brought the action for the recovery of money due on thenote to Sinnatambia Pillai, and this being so the action must now beregarded as one for the recovery of property belonging to SinnatambiaPillai’s estate and is therefore subject to the provisions of section 547of the Civil Procedure Code. I am not aware of a similar case,but it can make no difference by whom an action is brought if theobject of it is that stated in section 547. The primary object ofsection 547 is to protect the revenue (Wood Benton J. in HassenHadjiar v. Levana Marikar 2).
The action, however, should not have been dismissed, but theappellant is not entitled to continue the action until grant ofprobate or letters of administration (Alagakawandi v. Muttumals)..
The order of dismissal is set aside. No further steps can be 'taken in the action by the appellant until grant of probate or lettersof administration of the estate of. Sinnatambia Pillai, and any stepthereafter must be after notice to the legal representative ofSinnatambia Pillai.
»(1899) Koch's Reports 38.* (7922) 15 N. L. R. 875.
* (1920) 22 N. L. R. 111.
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Mr. Perera asked that leave should be given to the appellant towithdraw the action if he so desires. As this would ordinarilyhave the effect of barring another action on the note by the legalrepresentative, the appellant should not be allowed to withdrawthe action except with the consent of the legal representative,who will be able to secure the interests of the estate by requiringthat the withdrawal should be with leave to re-institute.
The question of costs in the lower Court and of this appealwill be decided by the Judge who finally disposes of this action.
Fisher C.J.—I agree.
RAMASAMY PILLAI v. VENGADASAMY