The definition of "money-lender" in Sec. 2(g) of the Bihar Money-Lenders Act, 1938, does not apply in a case where the original money-lender is suing for the money advanced by him.

Narayan, J.

1. This appeal arises out of a suit for recovery of Rs. 800.00 as principal and Rs. 228/- as interest on the basis of a handnote, dated 17-2-1944, alleged to have been executed by the original defendant Ramlochan Sharma in favour of the plaintiff,

2. The defendant pleaded inter alia that the suit was not maintainable because the plff. was not a registered money-lender. This defence found favour with the Court of first instance, which dismissed the suit on the ground that the plaintiff was not a registered money-lender at the time when the loan was advanced. The defence however, was rejected by the lower appellate Court, and, in the result, the lower-appellate Court decreed the suit in full.

3. It appears that when the appeal before the District" Judge was pending, Ramlochan Sharma died and his widow, his sons and grandsons were substituted in his place, they being, the appellants before this Court.

4. The short point for determination in this appeal is whether the suit is maintainable even though the plaintiff was not a registered moneylender at the time when the loan was advanced. The contention of the plaintiff has been that though the plaintiff when he advanced the loan was not a registered money-lender, Sec. 4, Bihar Money-Lenders, Act, 1939 will not be a bar inasmuch as the loan had really been advance by Mungpshwar Singh, the karta of the plaintiffs family, who is now dead. Learned counsel for the respondent strenuously urged that because the word "Money-lender" includes a Hindu undivided family and legal representatives and the successors-in-interest, whether by inheritance, assignment or otherwise, of a person who advances a loan, the plaintiff will be able to maintain the suit even though the handnote does not stand in his name. This would have been a perfectly sound argument if the handnote would have been executed in the name of and the loan would have been advanced by Mungeshwar Singh, who, according to the findings of the Courts below, was the karta of the joint family. Admittedly the handnote does not stand in the name of Mungeshwar Singh and even the plaintiff of this suit does not say that the loan was advanced by Mungeshwar Singh. The clear averment in the plaint is that the defendant borrowed a sum of Rs. 800/-from the plaintiff on 17-2-1944, and executed a handnote in favour of the plaintiff. There is a further statement to the effect that "the claim is made on the strength of the original consideration also."

Thus, the plaint unmistakably goes to show that the loan was advanced by the plaintiff himself and the handnote was executed in his favour and in his name. Evidence, contrary to this statement, should not have been taken and the Court of appeal below was not justified in holding even in face of this averment that the loan had been really advanced on behalf of the joint family and that the plaintiff had sued in his capacity as the karta of the joint family. Advantage could be taken by the plaintiff of Sec.2(g), Bihar Money-Lenders Act, 1938, only if the loan would have been advanced by Mungeshwar Singh and the handnote would have been executed in his favour; then and, then only it could be urged that Sec. 4, Bihar Money-Lenders Act., 1939, was not a bar to the maintenance of the suit by the present karta of the family. According to Sec. 5, Bihar Money-Lenders Act, 1938, application for being registered as a money-lender has to be made by the person, who takes to the profession of money-lending, and the name and address of the applicant as also the name and style under which he carried on or desires to carry on business as a money-lender have to be mentioned.

Section 4 of the Act of 1939 says that "no Court shall entertain a suit by a money lender for the recovery of a loan advanced by him after the commencement of this Act unless such money-lender was registered under the Bihar Money-Lenders Act, 1938, at the time when such loan was advanced." The words "such money-lender" are import