The central legal point established in the judgment is the determination of the plaintiffs' rights as holders in due course and the limitations of rights transferred through an assignment of a chose in action.

Wallace, J.

1. This second appeal is against the decision of the lower appellate Court in the matter of a promissory note claim. The promissory note dated 9th June 1920 was executed by defendant 1 in favour of plaintiff 1 on behalf of the joint family of which he was the manager. In a partition suit decree, this promissory note was allotted to the share of one Balkrishnayya although the promissory note appears to have remained with plaintiff 1. On 14th September 1922, Balkrishnayya executed a release deed relinquishing his rights in the suit note in favour of both the plaintiffs. Both the plaintiffs filed this suit to recover the full amount due upon the note. The defence pleaded was a discharge to Balakrishnayya partly by cash and partly by execution of another promissory note. The trial Court held that the payment pleaded by the defendants was true but that it was not binding on the plaintiffs. The lower appellate Court agreed in holding that the payment was true but held further that the plaintiffs had no title to sue, not being holders in due course. It therefore dismissed the suit and the plaintiffs appeal.

2. The first contention urged by them is that as the promissory note is in the name of plaintiff 1 and has not been endorsed by him to any one else, he is the holder and entitled to recover from the defendants. This to my mind is entirely a new case set up here for the first time. It may be a good case or a bad case, but the defendants have never been given an opportunity of meeting it. It is argued that this is a pure question of law but clearly that is not so. I cannot speculate as to what would have been the defendants defence if plaintiff 1 alone had sued upon the note. Attempts to raise in second appeal points which are not even in the pleadings and which the other side has never been called upon to meet are not to be lightly permitted in second appeal. The Privy Council has lately condemned such a practice It appears to their Lordships to be highly irregular for any Court either to assume without the admission of all parties that material facts are not in dispute or to proceed to draw inferences from those facts where no evidence of them has been placed before the Court." James R. R, Skinner v. Nannihal Singh A.I.R. 1929 P.C. 158.

3. That this present contention is a new case is clear from a perusal of the pleadings and the judgment of the lower Courts. There is no hint in the plaint that plaintiff 1 has any cause of action apart from that of plaintiff 2. The manner in which the plaintiffs became "absolute hukdars" of the promissory note is stated in paragraph 6 to be the release deed. The only prayer in the plaint is to pay the suit amount to both the plaintiffs. There is no issue whatever on this present point and the frame of the only issue shows that it was never raised. The only issue is whether the discharge set up by the defendants is true and binding on the plaintiffs.

4. If there had been any case that plaintiff 1 alone was entitled to sue as holder the plea of discharge to some one else who never was holder was irrelevant and could not have arisen. A perusal of the judgments of both Courts shows also that the present contention was never raised there, and neither Court has given any finding which can remotely be related to such a contention. I therefore refuse to allow this contention to be raised at this stage.

5. We are then concerned with the joint rights of both plaintiffs to sue on the footing of the release deed. Plaintiff 1s rights in this matter are no more than plaintiff 2s. So it will be convenient to ask what rights plaintiff 2 now has to sue upon the promissory note. His right is derivable, if anywhere, from the release deed which conveyed to him the right which Balakrishnayya had in the promissory note. What right had Balakrishnayya? The note was not endorsed to him, so that he is not a holder by endorsements. Is he otherwise a holder in due course? It must be held that he clearly was no