JUDGMENT
1. This appears to us a clear case. The plaintiff Sri Nath Das sues to recover two sums of money which are alleged to have been borrowed by the defendants in the year 1906. On the occasion of the first loan of Rs. 300, the defendant Bijai Bahadur Singh, who is the son of the other defendant, executed a promissory-note, and on the occasion of the second loan of Rs. 200 on the 1st of Jane, 190G, he also executed in favour of the plaintiff a promissory-note Bijai Bahadur Singh was at the date of the note a minor. Therefore, no claim, against him upon the notes can succeed. The plaintiff, however, did not sue Bijai Bahadur Singh upon the promissory-notes but he brought his suit against both the father and the son for money lent, stating in the plaint that both the father and the, son borrowed the two sums of Rs. 300' and Rs. 200 from him. in the. plaint he states that two notes were executed by the son in his favour.
2. The Court of first instance decreed the plaintiff's claim and upon appeal the lower appellate Court upheld that decision. That Court finds as a fact that both the defendants jointly borrowed from the plaintiff Rs. 500. This is a finding of fact. The Subordinate Judge explains why the notes were executed in the name of Bijai Bahadur only, namely, that in his name was the contract for which the loan was required, although both the defendants were jointly interested in the profits arising from the contract. It is well-settled that a creditor who has got a security for an advance of money made by him may as a rule sue for the original consideration. If he have a bill of exchange or promissory-note, as security, he must not have endorsed or lost or parted with the bill or note under such circumstances as would render the debtor liable upon it to some third person. The law on the subject is stated very clearly by Garth, C.J., in Sheikh Akbar v. Sheikh Khan 7 C. 256. He points out that in regard to the question whether evidence can be given aliunde to prove consideration for a note, this depends upon the circumstances and observed as follows: "When a cause of action for money is once complete in itself, whether for goods sold, or for money lent, or for any other claim, and the debtor then gives a bill or note to the creditor for payment of the, money at a future time, the creditor, if the bill or note is not paid at maturity, may always as a rule sue for the original consideration, provided that he had not endorsed, or lost, or parted with the bill or note, under such circumstances as to make the debtor liable upon it to some third person." In the case of Banarsi Prasad v. Fazal Ahmad 28 A. 298 : 3 A.L.J. 25 : A.W.N. (1906) 9, a Bench of this Court of which one of us was a member, held, in a suit for the recovery of a loan secured by a promissory-note, that when it was found that the stamp on the note had not been cancelled and the document must, therefore, be treated as an unstamped document and, therefore, not admissible in evidence, evidence of the debt would be admissible aliunde. We are at a loss to distinguish that case from the present. Here money is found to have been borrowed by the two defendants and it is evident that the plaintiff did not sue upon the notes alone, or upon the notes at all, in as much as the suit is brought against both Bijai Bahadur Singh and his father Angad Singh. If the suit had been upon the notes, the sole defendant would have been Bijai Bahadur Singh alone. The lower appellate Court, agreeing with the Court of first instance, found that the money was borrowed and decreed the plaintiff's claim. A second appeal was preferred to the High Court and the learned Judge, before whom the appeal came has written a most elaborate and lengthy judgment and discussed a number of questions which we think unnecessary here to refer to. The sole question in the case, as it seems to us, was whether or not money was borrowed and whether the plaintiff established his right to recover that money. The learned Judge has mistaken the finding of the lower appellate Court upon a very material point. The lower appellate Court, as we have pointed out, found that the money was borrowed by the two defendants jointly, and then explained why the notes were executed in the name of one alone. The learned Judge of this Court at the conclusion of his judgment states the finding of the lower appellate Court as follows, namely, "both the father and the son jointly borrowed Rs. 500 on the two promissory-notes which were caused by the father to be executed in the name of the son and both the father and the son were jointly interested in the business for which the money was borrowed." That was not the finding of the lower appellate Court. Its finding was that the father and the son borrowed the money from the, plaintiff and that the son gave the promissory-notes for the amount. This misconception as to the finding of the lower appellate Court has probably led to the overruling of the decision of both the lower Courts by the learned Judge of this Court. We allow the appeal. We set aside the decree of the learned Judge of this Court and restore the decree of the lower appellate Court with costs in all Courts.