JUGAL PRASAD MISSER Vs. BHADAI DAS

JUDGEMENT

(1.) This appeal by the plaintiff is directed against a decision of the Subordinate Judge of Darbhanga, dismissing a suit for therecovery of Rs. 6,630/5/6, principal and interest, on account of loans on handnotes given by defendant 9, Janardan Frasad Singh to the defendants 1 to 8, as members of a joint Hindu family governed by the Mitakshara school of Hindu law. There are three handnotes, Ex. 4(b) dated 31-12-1943, for a sum of Rs. 3.000, Ex. 4, dated 8-1-1944, for a sum of Rs. 2,000 and Ex, 4(a) dated 26-1-1944, for a sum of Rs. 800, all executed by Bhadai Das, defendant 1 in favour of Janardan Frasad Singh, stipulating to pay interest at the rate of 1 per cent per month. The handnotes were assigned to the plaintiff Jugar Prasad Misra on 15-1-1945, by defendant 9. Defendants 1 to 8 denied the allegation that they are a joint family. According to them defendant 1 is separate from the other defendants. They further denied the factum of the alleged loans and asserted that the handnotes were forgod. Finally, they challenged the maintainability of the suit on the ground that at the time the advances are alleged to have been made defendant 9 was not registered under the provisions of the Bihar Money Lenders Act, 1938. The learned Subordinate Judge decided these questions of fact in favour of the plaintiff. He held that the defendants I to 8 constitute a joint family of which defendant 1 is the 'karta', that the hand-notes are genuine and represent advances as mentioned therein and that the loans were taken for the benefit of the joint family. He dismissed the suit on the ground that it cannot be entertained under the provisions of Section 4, Bihar Money Lenders (Regulation of Transactions) Act, 1939, because on the dates when the advances were made defendant 9 was not a registered money lender. It was urged on behalf of the plaintiff, firstly, that these were casual loans and that defendant 9, not being a money lender by profession, was not required to register himself under the Money-lenders Act of 1938; and secondly, that at the relevant period the plaintiff was a registered money lender under the Act of 1938. The Subordinate Judge rejected the story about these being casual loans and held that the fact of the plaintiff having been a registered money-lender at the relevant period did not exclude the application of Section 4, Bihar Money Lenders (Regulation of Transactions) Act, 1939.

(2.) Before us the only finding of fact which has been challenged is the question whether defendant 9 was a professional money-lender required to register himself as such under the Money Lenders Act of 1938. This challenge was somewhat half-hearted in view of the clear evidence on the record. The case was attempted to be made out that defendant 1, who was working as a contractor under the District Board, is a tenant of defendant 9, and that because of this relationship defendant 9 occasionally gave him financial help when he was in need of funds. Defendant 9 was examined as witness No. 4 for the plaintiff and deposed that he has no regular money-lending business and does not maintain any account. It appears from his cross-examination, however, that during the four or five years preceding his deposition he had advanced money under handnote to other persons besides defendant 1. In particular, he mentions one Medni Singh to whom in 1940 he advanced the sum of Rs. 500. Witness No. 3 for the plaintiff Jainarain Labh is the scribe of the three handnotes in suit. He tells us that he has scribed a number of handnotes in favour of defendant 9. Rameshwar Prasad Singh (P. W. 5), who is a witness to the handnote Ex. 4 (b) deposes: "Defendant 9 advances money to people. His money lending business would be Rs. 5,000 to Rs. 10,000 per year". He also mentions a specific loan of Ri. 5,000 given by defendant 9 to Mangal Mahto. It would not be out of place in this connection to notice that the plaintiff himself in the cause title of the plaint describes defendant 9 as "zamindar and mahajan". In these circumstances, the Subordinate Judge rightly rejected the plea that defendant 9 was not liable to register himself as a money lender under the Bihar Money-Lenders Act, 1938.

(3.) The only question which arises on this finding is whether in these circumstances, the plaintiff, having been duly registered under the Act at the relevant time, the suit is barred by Section 4, Money Lenders (Regulation of Transactions) Act, 1939. The point is concluded by the decision in -- 'Noor Mohammad Khan Kabuli v. Haridas Banerjee', AIR 1953 Pat 140 (A). In that case the plaintiff, a registered money lender, sued to recover an advance of Rs. 230/- with interest at the rate of 10 per cent per month given on a handnote by a firm of money lenders at a time when the firm was not registered under the Act of 1938. It was held by Rai and Sinha, JJ. that the fact that the plaintiff, the assignee from the money lending firm of the handnote in question, was a registered money lender at the relevant period did not exclude the application of Section 4, Money Lenders (Regulation of Transactions) Act, 1939. It has been contended very strenously before us, however, that the decision of their Lordships is not supported by the reasons given by them, and the point should be referred to a large Bench for further consideration.