ANATHABANDHU SAHU Vs. BABU LAL

JUDGEMENT

(1.) This is an application for revision of a decree passed in a Small Cause Court suit. The suit was brought by Babu Lal, minor through his father and guardian Chunilal Josi for recovery of Rs. 64-2-11 due on khata accounts and Rs. 133 due on a handnote. The handnote was executed by defendant 1 in favour of the plaintiff's father Chunilal Josi. Defendant 1 is the karta of the joint family consisting of himself and defendants 2 and 3, and these two defendants were impleaded as being benefited by the transactions sued upon.

(2.) The suit was contested by defendant 1 on various grounds, one of them being that the handnote in suit not being in favour of the plaintiff, he had no right to sue. The learned Small Cause Court Judge, overruling all the defences, decreed the suit on contest against defendant 1 and ex parte as against defendants 2 and 3. Defendant 1 has presented this application for revision against that decree. The point raised on behalf of the petitioner is that the plaintiff has no right to maintain the suit so far as it is based on the handnote, because the handnote is not in his favour. Reliance is placed on Section 78, Negotiable Instruments Act, and also on certain observations in Ghanashyam Das V/s. Raghu Sahu a case decided by a Special Bench of this Court. Section 78, Negotiable Instruments Act, runs thus: Subject to the provisions of Section 82, Clause (c), payment of the amount due on a promissory note, bill of exchange or cheque, must, in order to discharge the maker or acceptor, be made to the holder of the instrument.

(3.) The object of this Section is obviously to secure a valid discharge to the maker or acceptor of the instrument. It has accordingly been held in some cases that none but the holder of a promissory note is entitled to sue to recover the money due on it. But Section 78 does not mean that where the suit on the promissory note is brought not by its ostensible holder but by the real beneficiary and the ostensible holder is a party to the suit and in his presence it is proved that the plaintiff is the real beneficiary, the suit shall still be held to be not maintainable. Such a suit has been held to be maintainable in several cases of this Court, Sarjug Singh V/s. Deosaran Singh A.I.R. 1930 Pat. 313, Surajram Prasad V/s. Sadanand Misra A.I.R. 1932 Pat. 346 and Ramnagina Prashad V/s. Biswanath Prasad A.I.R. 1934 Pat. 85. In each of these cases the ostensible holder was impleaded as a defendant and it was expressly stated in the plaint that the plaintiff was the real beneficiary.