SINGHESHWAR MANDAL Vs. GITA DEVI

JUDGEMENT

(1.) This appeal is by defendant No. 1. A money suit was filed against him by the plaintiff-respondent for recovery of a sum of Rs. 1541/15/-annas on the basis of a handnote admittedly executed by him on 4-7-1959 for a sum of Rs. 1133/11/- annas in favour of Dhir Narain Chand, the father of the plaintiff. It has been stated in the plaint, inter alia, that the plaintiff's father had expressed his desire in presence of the defendant second party that the amount in respect of this loan would go to the plaintiff alone to which the defendant second party expressly consented. The defendant second party are the two widows of Dhir Narain Chand aforesaid.

(2.) Defendant No. 1 filed a written statement and contested the suit on various grounds, inter alia, that the plaintiff being not the holder of the handnote in question, she had no right to institute the suit in question. As it is only this question that is falling for my consideration, it is not necessary to advert to any other defence put forward on behalf of the defendant. The trial court accepted the defence and dismissed the suit but on appeal, however, the learned Additional Subordinate Judge has decreed the same and, therefore, this second appeal has been filed by defendant No. 1. The learned Additional Subordinate Judge has overcome this plea of the appellant on the ground that the plaintiff was an heir of Dhir Narain Chand who had every right to make arrangement and partition the assets among his heirs. On referring to the evidence and the circumstances on record, he has held that the plaintiff's father did make such an arrangement according to which this debt was made realisable by the plaintiff alone.

(3.) In my opinion, the court of appeal below has committed an apparent error of law in decreeing the suit. Under the provisions of Section 78 of the Negotiable Instruments Act, payment of the amount due on a promissory note etc. in order to discharge the maker or acceptor thereof must be made to the holder of the instrument or if the same is endorsed then to the endorsee as provided under Section 82 (c) of the Act which is not the case here. The provisions of the Negotiable Instruments Act are very specific.