BHAGIRATH Vs. GULAB KANWAR

JUDGEMENT

(1.) THIS is an appeal by the defendant Bhagirath in a suit brought against him by the plaintiff Mst. Gulab Kanwar on behalf of herself and her sons Sampatchand and Suratsingh who are minors. The suit was principally based upon a promissory note and has been decreed with respect to it by the Senior Civil Judge Jodhpur but the rest of their claim stands dismissed.

(2.) THE case disclosed by the plaintiffs is that there were money dealings between Nauratanmal deceased, grandfather of the minor plaintiffs, and the defendant, and the latter had also taken certain kothas on rent from the deceased and was in occupation thereof. It is said that after the death of Nauratanmal, on the 15th October, 1951, accounts were gone into between the parties on Migsar Sudi 15 Svt. 2008 (corresponding to the 13th December, 1951) and a sum of Rs. 9701/7/- was found due against the defendant. THE latter expressed his inability to repay the amount found due. THEreupon the old Khata was squared up, a sum of Rs 8/7/-was paid in cash by the defendant, and so for the balance of Rs. 9700/- he executed a promissory note in favour of Mst. Gulabkanwar, and this amount was stated in the promissory note to have been received by the defendant in cash. It was further stipulated in the promissory note that the defendant would pay interest at the rate of 7 annas percent per mensem. THE plaintiffs eventually brought a suit for the recovery of Rs. 9700/-principal and Rs 75/3/ as interest and Rs. 673/9/- as arrears of rent, amounting in all to Rs. 10448/12/-- As was subsequently made clear by Mst. Gulabkanwar, the debt covered, by the promissory note (and the kothas) had fallen to the share of Nauratanmal at a family partition, and on his minor grand-sons Sampatchand and Suratsingh (their father Dhanpat Singh having predeceased Nauratanmal) became the owners thereof and the promissory note had been executed in Mst. Gulabkanwar's name because her sons were minors and she was their natural guardian. Mst. Gulabkanwar also stated in her replication that if the money due on the promissory note was paid to her sons, she would have no objection whatsoever and that she would be prepared to give a complete discharge to the defendant both on her own behalf if required and also on behalf of her sons as their natural guardian. THE defendant admitted the execution of the promissory note but contended that he had not received any consideration for it and, therefore, the plaintiffs' suit was bound to fail. THE defendant further pleaded that the suit as brought by the plaintiffs was bad for mis-joinder of plaintiffs and causes of action. He also raised certain other pleas but they are not material for the purposes of the present appeal and, therefore, we do not propose to mention them.

(3.) THE second type of cases arises where the beneficial or true owner brings a suit without impleading the holder (who is alive) either as a plaintiff or as a defendant. It appears to us, on the principles which have commended themselves to us, that in this class of cases the plaintiff cannot maintain his suit in the absence of the holder. THE reason, to our mind, is simple and that is that if the matter is decided one way or the other, in the absence of the holder, the latter cannot be held to be bound by any decision which might have been so arrived at, and the maker or the acceptor of the not would be exposed to unnecessary risk, and the object of sec. 73 would be clearly defeated. We, therefore, wish to point out that those cases which lay down that the claim of the true owner can be decreed even in the absence of the holder and the latter has not been made a party to the suit have gone too far. On this view, with utmost respect, it appears to us that the Full Bench case of Rai Ram Kishore vs. Ram Prasad (12) goes farther than we would be prepared to go, because in that case the holder of the promissory notes was alive but he was not made a party to the suit. THE earlier decisions of the Allahabad High Court in Sewaram vs. Hotilal (10) and Lachmi Chand us. Madanlal Khemka (11) seen to us to have struck the correct note when it was laid down therein that the real owner of a note may be provided he is in a position to obtain a good discharge from liability for the maker or acceptor of the note, and such a discharge could only be obtained with confidence or certainty where the holder himself is a party.