INDARSINGH GOPALSINGH RAIPUT Vs. RAMNARAYAN MATHURALAL

JUDGEMENT

(1.) THIS is an application for revision Under Section 25, Provincial Small Cause Courts Act by the defendant applicant against whom the lower Court has awarded to plaintiff 1 non-applicant 1 a decree for Rs. 345-2-3 and costs. The suit was for recovery of the amount due on the promissory note dated 9th February 1939 (Ex. P-1) for a sum of Rs. 274, which the defendant had executed in favour of plaintiff 1. Excepting Rs. 25 which was then advanced, the remaining amount was due on the promissory note dated 9th February 1936 (Ex. P-2) for Rs. 200, which had been executed by the defendant in favour of plaintiff 2 non-applicant 2, the wife of plaintiff 1.

(2.) IN the first instance plaintiff 1 was the sole plaintiff hut on the defence taken by the defendant, the lower Court ordered the joinder of plaintiff 2 who was accordingly so joined. The defence was as follows: That it is submitted that the plaintiff is a patwari and carries on money-lending business in the name of his wife Mt. Parwati Bai. That the transaction in suit is in pursuance of his money-lending business. The plaintiff is prohibited under law, as a patwari, from doing money-lending business; as such the con tract is void Under Section 23, Contract Act. The suit is therefore not maintainable.

(3.) THE lower Court accordingly decreed the claim in favour of plaintiff l. The learned Counsel for the defendant relies on the decision of Kotval A.J.C. in Vishnu v. Achut and contends that the suit, which was on a promissory note, could, in view of Sections 8 and 78, Negotiable Instruments Act, be brought, as it was brought, by plaintiff 1 alone but that for that very reason it was liable to be dismissed, the transaction of the promissory note being, as was urged, void Under Section 23, Contract Act, by reason of the Patwari Rules. No doubt the position is that plaintiff 1 being the holder of the promissory note was alone competent to sue though he was a mere benamidar for plaintiff 2. That position is borne out by Vishnu v. Achut . The same view has been taken by the Special Bench of the Patna High Court in Ghanshyam v. Ragho in which at pp. 80-81 the following statement occurs: There is a current of decisions to the effect that where a hand- note is executed in favour of a benamidar, it is not open to the defendant to assert that the holder of the note is not the beneficial owner --Subba Narayana v.Ramaswami 30 Mad. 88 and conversely that if a suit is to be based on the hand-note, it must be instituted by the holder whose name appears on the note, not by another person who alleges that the original holder is his benamidar and that he is the beneficial owner--Ram Das v. Chhote Lal A.I.R. 1928 Pat. 24 and Harikishore v. Guru Mia .