( 1 ) ONE Baijnath Sayal received a telegram purporting to be from L. Kunwar Lal Thapar. A request was made in that telegram that Baijnath Sayal should send Rs. 4000/- by draft to Kunwar lal Thapar c/o Messrs. Karam Chand Thapar and Brothers. L. Baijnath Sayal went to Imperial bank Delhi and purchased a draft. The draft was drawn by the Imperial Bank Delhi payable to kunwar Lal Thapar by the Imperial Bank Kanpur. The draft was duly posted and it was taken delivery of not by Kunwar Lal Thapar but by another person, Inder Raj seth. Either Inder Raj sethi or some other person took the draft to firm Kalka Prasad Ram Charan. That person had a letter of introduction to. the firm from Baijnath and Co. That person said that he wished to buy certain goods from firm Kalka Prasad Ram Charan. He endorsed the draft as kunwarlal Thapar and handed it over to firm Kalka Prasad Ram Charan. They in their turn made an endorsement in blank in favour of the Bharat Bank. This draft was entered in a pay-in slip by firm Kalka Prasad Ram Charan in which two other items were entered and the draft along with the pay-in slip was sent to the Bharat Bank. The Bharat Bank presented the draft for payment to Imperial Bank Kanpur the drawee and received the amount mentioned in the draft and paid in that amount into the account of firm kalka Prasad Ram Charan. It appears that when Karam Chand Thapar came to know that L. Baijnath Sayal had sent a draft in this manner and that the draft was taken possession pf by another person and was dealt with in the manner described above, L. Kunwar Lal Thapar and L. Baijnath Sayal as co-plaintiffs filed the present suit against the Imperial Bank of India Delhi and kanpur branches, the Bharat Bank Kanpur and firm Kalka Prasad Ram Charan. The banks were made pro forma defendants and the decree was asked for as against firm. Kalka prasad Bam Charan, defendant No. 1 alone. The defence of defendant No. 1 was that the plaintiffs were guilty of gross negligence and carelessness in knowingly and deliberately sending the. draft to a person who was not in Kanpur and, therefore, estopped from claiming the amount from defendant No. 1. It was further pleaded that defendant No. 1 was holder of the bank draft in due course and that he acted bona fide and was not liable.

( 2 ) THE learned Munsif held that defendant No. 1 was not a holder in due course because the endorsement in his favour was forgery. He also held that the plaintiffs were not guilty of any fraud. Accordingly, he decreed the plaintiffs claim for Rs. 4,000/- with future interest as against defendant No. 1.

( 3 ) THERE was an appeal and a cross-objection filed in the Court below. The Court below held that the forged endorsement in favour of the firm could not give it a title. The Court below also agreed with the learned Munsif that Kunwar Lal Thapar and Baijnath Sayal. the plaintiffs, had been duped and defrauded. The appeal and the cross-objection, which related to costs, were both dismissed.

( 4 ) THE present second appeal has been filed by the firm kalka Prasad Ram Charan, defendant no. 1. Learned counsel concedes that on the finding that the endorsement in favour of the firm was a forgery, no legal title passed to the firm in the draft. It is also conceded that the firm, in its turn, passed no legal title to the Bharat Bank. It is well settled that the endorsement on a negotiable instrument through which a holder in due course claims must be genuine and, therefore, a forged endorsement creates no title in favour of the holder in due course. It is not only that such holder in due counsel has a defective title but he has no title at all. For that reason, such a holder, who obtained payment under the negotiable instrument, is guilty of conversion and the true owner is entitled to waive the tort and sue for recovery of the amount of the instrument which amount the holder must be deemed to be holding for the use of the true owner. It is, however, argued that it was re