ASURAM Vs. NIRANJANDASS

JUDGEMENT

(1.) THIS is a Civil Second Appeal filed by the defendant in a money suit.

(2.) THE case of the plaintiff-respondent Niranjandas is that he and his brothers carried on business at Mandi Singaria under the name and style of Firm Motimal Tilokchand. THE defendant Asuram had executed a promissory-note for Rs. 3,500/-on the 22nd January, 1955 in favour of the said Firm Motimal Tilokchand in settlement of the old account. THE promissory note provided that interest shall be paid at annas eight per cent per mensem. THE case of the plaintiff further is that after the execution of the promissory-note the firm Motimal Tilokchand was dissolved and the said promissory note fell to the share of the plaintiff. THE plaintiff therefore, brought the suitfor the recovery of Rs. 3800/-including interest. Asuram defendant denied all the allegations made by the plaintiff and took some pleas in defence which need not be re-eiterated here as they have been disbelieved by the courts below. THE trial Judge held that the defendant Asuram had executed the promissory note and the amount for which the suit was filed was due from him. He, however, held that the Firm Motimal Tilokchand was not dissolved on the date of the filing of the suit and the promissory note had not fallen to the share of the plaintiffs. THE trial Judge also held that the promissory note was a negotiable instrument which could not be assigned by the said firm in favour of the plaintiff without endorsement and, as such, the plaintiff was not entitled to maintain the suit. THE suit was, therefore dismissed. On appeal by the plaintiff-respondent, the learned District Judge Ganganagar, agreed with the trial court that the promissory note was executed by the defendant Asuram. THE learned District Judge further held that the firm Moti Mal Tilokchand was dissolved on Phagun Badi 5, Sambat 2011 after the execution of the promissory note and before the filing of the suit and the promissory note had fallen to the share of the plaintiff on the dissolution of the firm. He also took the view that the other two partners of the firm namely Kesri Chand and Bhagwan Das had come in the witness box and deposed that they had nothing to do with the said promissory note which had fallen to the share of the plaintiff-respondent and under these circumstances the plaintiff had a right to give a valid discharge of the debt due on the promissory note and was entitled to bring an action on the promissory note, though it had not been endorsed in his favour. He also observed that the other two partners should be deemed to be parties to the suit. Taking this view of the matter, he decreed the suit of the plaintiff. Asuram defendant has filed this second appeal. He died during the pendency of the suit and he is now represented by the present appellants.

(3.) LEARNED counsel for the appellants has laid considerable emphasis on the observations made by the Division Bench that the Full Bench case of Ramkishore Vs. Ramprasad Misir (2) went further than the Bench was prepared to go. It may be mentioned that the Division Bench approved the decisions of the Allahabad High Court in Sewa Ram Vs. Hotilal (3) and Lachmi Chand Vs. Madanlal Khemka (4 ).