Ryves and Gokul Prasad, JJ.
1. The plaintiff Musammat Manna Kunwar sued to recover a sum of money due on a ruqqa executed by the defendants in favour of one Kishori Lal. The plaintiff's allegation was that the money was advanced by her and that Kishori Lal, in whose name it was drawn, was merely her benamidar as she was parda-nashin. Kishori Lal bad died without heirs and the plaintiff was entitled to recover the money on this ruqqa. The defence was, so far as we are now concerned, that the plaintiff could not maintain the suit. The trial court found all the issues of fact in favour of the plaintiff, namely, that she had advanced the money in cash to the defendants who had executed the ruqqa, benami in the name of Kishori Lal who was a near relation of the plaintiff The trial court, however, dismissed the suit on the ground that under Section 78 of the Negotiable Instruments Act read with Section 8 of that Act Musammat Manna Kunwar could not maintain the suit. She appealed. The learned Subordinate Judge agreed with all the findings of fact found by the trial court but held that the suit was nevertheless maintainable. What he says is this: 'The ruqqa in question is an agreement, It provides for interest and is payable on demand. It is true that under Section 78 of the Negotiable Instruments Act only the holder can sue whether the instrument is negotiable or not, but the rule does not apply to agreements. I hold that the ruqqa in question is an agreement and the cestui que trust can sue on it'. He nevertheless calls the document a ruqqa. We have read the document and there is no doubt whatsoever that it falls within the definition of a promissory note given in Section 4 of the Negotiable Instruments Act. The learned Counsel who appears for the respondent does not, and indeed could not, support the reasoning of the learned Subordinate Judge, but he argues that Section 78 of the Negotiable Instruments Act does not bar a suit by the person really entitled to the money payable under a promissory note. It bars the payment out of Court, it is argued, to any one except the payment as defined in Section 8 of the Act so as to get a valid discharge, and that that is all it does, and he relies on the case of Gurumurti v. Sivayya (1897) I.L.R. 21 Mad. 391. That case certainly does seem to support his contention, but no reference in that case is made to the provisions of the Act. That judgment, however, has been considered in three later cases by the Madras High Court. In Ramanuja Ayyangar v. Sadagopa Ayyangar (1904) I.L.E. 28 Mad. 205 a Divisional Bench of that Court dissented from it. It was, however, again considered by a Full Bench of the same High Court in Subba Narayana Vathiyar v. Ramaswami Aiyar (1906) I.L.R. 30 Mad. 88. It is true that that case was the converse of the present case. There it was held that a defendant could not set up the plea that the plaintiff, who sued on a promissory note and in whose name the promissory note was, was not in fact the real owner. That is true, but in the course of the judgment the case of Gurumurti v. Sivayya (1897) I.L.R. 21 Mad. 391 was expressly overruled. In Subramanya Tevan v. Arunachala Tevan (1907) 18 M.L.J. 186 this latter case was followed. In our own Court in the case of Dori Lal v. Sewak Ram (1915) 13 A.L.J. 695 the point was considered by a Judge sitting alone. The facts there were on all fours with the facts here, and that learned Judge followed the view taken in the later Madras cases to which we have referred, We agree with his view. We think that the decision of the first court was correct. The result is that we allow the appeal and setting aside the decree of the court below, restore that of the court of first instance with costs.