Wanchoo, C.J.—This is an appeal by Pukhraj Surana defendant against the judgment and decree of the District Judge, Jodhpur, decreeing the suit brought by the plaintiffs respondents against the defendant appellant.

2. The case of the plaintiffs was that they were carrying on business under the name and style of Chandulal Kushalchand at Bombay. The plaintiffs used to work as commission agent for the defendant who was the manager of his joint family, and was carrying on the business of the joint family. As a result of these dealings between the plaintiffs and the defendant, a certain sum of money was due to the plaintiffs. The defendant, in order to pay off in part the amount due from him to the plaintiffs, executed two Muddati Hundis on Mangsar Sudi 8th St. 2 03 for a total sum of Rs. 35,000/-. One of these Hundis was for Rs. 20,000/- payable 61 days after date, while the other was for Rs. 15,000/- payable 121 days after date. The plaintiffs endorsed the Hundis in favour of Raghunathmal Bank and asked the Bank to credit the money to their account as and when the Hundis were honoured. The Bank presented the Hundis on the respective dates of their maturity to the defendant, but they were dishonoured. Consequently, the Bank returned the Hundis to the plaintiffs who asked the defendant to pay the amount of the Hundis. The defendant, however, refused to do so, and consequently the plaintiffs filed the suit for Rs. 39,615/-including principal and interest at the rate of 6% per annum.

3. The suit was resisted by the defendant. It was admitted that there were transactions between the defendant and the plaintiffs; but it was said that no amount was due from the defendant to the plaintiffs. The defendant also admitted that the two Hundis were drawn by him, but his case was that they were drawn for purchasing gold in future, and as the plaintiffs did not supply the gold the Hundis were not honoured. The defendant thus set up the case of consideration. It was also urged that the Hundis were not stamped according to law, and as such they were inadmissible in evidence being unstamped, and could not be acted upon. It was further said that as no notice of dishonour had been given, the suit could not be maintained. Lastly, it was said that the endorsement on the Hundis by Shivlal was of no legal effect as he had no authority to do.

There issues were framed on the basis of this defence, which are as below—

(1) Whether the Hundis, the basis of the suit, were without consideration?

(2) Whether the two Hundis, the basis of the suit, being unstamped were inadmissible in evidence?

(3) Whether the plaintiffs did not give notice of dishonour of these Hundis, and, therefore, this suit was not maintainable?

There was a fourth issue relating to relief. No issue was framed on the question of the authority of Shivlal to endorse the Hundis.

4. The trial court held that the Hundis were with consideration. The issue relating to notice of dishonour was not pressed, and was therefore decided against the defendant. The issue relating to the admissibility of the Hundis was decided in favour of the plaintiffs on the ground that as the Hundis had been admitted at an earlier stage in the suit, it was not open to the defendant to challenge their admissibility in view of sec. 36 of the Stamp Act. In consequence, the plaintiffs suit was not decreed in full with costs and interest pendente lite and future at 6% per annum.

5. In the present appeal, learned counsel for the appellant has not pressed the issue about consideration. He has only raised two points before us. In the first place, it has been contended that the court below should have framed an-issue as to the authority of Shivlal to endorse the Hundis and should have deci-ded that point, and as that was not done, the suit should be remanded for further evidence. It is urged that unless the authority of Shivlal to endorse the Hundis in favour of Raghunathmal Bank is proved, Raghunathmal Bank would have no authority to presen

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