GHANASHAYAM SABATO Vs. B V RANGANATH SWAMY PANDITO

JUDGEMENT

(1.) The plaintiff has brought this second appeal against the reversing judgment of the lower appellate Court arising out of a suit for recovery of a sum of Rs. 917/8/-. The promissory note executed by defendant No. 1 in favour of defendant No. 2 is dated 23rd September 1944 for a principal amount of Rs. 500/-. Plaintiff and defendant No, 2 are two brothers, defendant No. 2 being the elder. The plaintiffs version is that the money was advanced from out of the joint family funds and in a partition in the year 1945 this debt along with the promissory note fell to the share of the plaintiff. Defendant No. 1 made two payments to the plaintiff on 6th September 1947 and 26th August. 1950.

(2.) Defendant No. 1 contested the suit mainly on the ground that the suit is not maintainable as there is no endorsment on the pronote as required under the provisions of the Negotiable Instruments Act. Defendant No. 1 admitted execution of the handnote, but did not admit that the consideration was paid from out of the joint family funds or that on partition the promissory note fell to the share of the plaintiff.

(3.) The trial court on a discussion of the evidence adduced on behalf of the plaintiff, however, found that the consideration was paid from out of the joint family funds and that on partition the promissory note fell to the share of the plaintiff. He also negatived the contention of the defendant as to the maintainability of the suit so he allowed a decree in favour of the plaintiff. The facts that the money was paid from out of the joint family funds or that the promissory note fell to the share of the plaintiff were not contested before the lower appellate Court and neither are they contested before me. The main ground which was urged before the lower appellate Court and also accepted by him is that the suit is hit by the provisions of Negotiable Instruments Act, there being no endorsement and also by Section 130 of the Transfer of Property Act, which requires that an actionable claim can be transferred only by an instrument in writing. It is to be mentioned that defendant No. 2, the elder brother of the plaintiff, did not contest the plaintiff's suit,