MUNSHI SAHU Vs. BHUPAL MAHTON

JUDGEMENT

(1.) THE two petitioners are brothers in whose favour a handnote was executed by the opposite party. One of the brothers, the elder, brought a suit in a Court of Small Causes for recovery of the debt without making his brother a party to the suit, either as plaintiff or defendant, and there was no mention in the plaint of the fact that the handnote had been, executed in favour of his brother as well as himself. THE opposite party took an objection on this ground, whereupon the plaintiff was permitted to amend his plaint and add his brother as a co-plaintiff; but as this was done after the period of limitation had expired, the suit was dismissed in view of the provisions of Section 22, Limitation Act.

(2.) IT is contended on behalf of the petitioners that the original plaintiff's brother was not a necessary party since he as the manager of the family consisting of himself and his brother had lent the money and could in the same capacity give to the defendants a valid discharge for the debt. The learned advocate for the petitioners relied on the decisions of this Court in Surajman Prasad Misra v. Sadanand Misra 1932 Pat 346 and Ramnagina Prasad V/s. Biswanath Prasad 1934 Pat 85. But those were cases in which suits had been brought by the person in whoso favour a handnote had in reality been executed although in the name of another person and the decisions were with reference to the provisions of Section 78, Negotiable) Instruments Act. IT was held that if the beneficiary was in a position to give a valid discharge, the fact that the promissory note did not stand in his name would not disentitle him to a decree in the suit where the person in whoso name the document stood was a party to the suit, which in both cases he was. The decisions are not authority for the proposition that one of two co- promisees can bring a suit on the promise without making the other a party to it. Under Section 45, Contract Act, the right to claim performance of the promise rests with them jointly. In the present case, moreover, as I have said, the original plaintiff was not suing as karta of the family. I see no reason to suppose that the learned Munsif has committed any error of law in dismissing the suit and I accordingly dismiss this application with costs: Hearing fee two gold mohurs.