JUDGMENT

1. This is a second appeal from a decree of the District Judge of Fyzabad in respect of a suit for money filed on the basis of a pronote. The subject-matter of the appeal is reduction of interest which is claimed by Mohammad Husain appellant in two different ways. He himself is undoubtedly an agriculturist, being a grower of tobacco. Raza Husain, who is a joint signatory of the pronote in suit, is not an agriculturist, and Mohammad Husain pleaded that Raza Husain had signed the pronote only as a surety, and therefore under proviso 3 to Section 2, Agriculturists' Belief Act, the fact that Raza Husain is not an agriculturist will not deprive Mohammad Husain of claiming the benefit of Section 30, Agriculturists' Relief Act. The trial Court went into this question thoroughly, and it does not appear that any objeotion to the plea on the basis of Section 92, Evidence Act, was taken. When, however, the case came up to the lower appellate Court the plea that this evidence was barred by Section 92 was taken, and the lower appellate Court considered that the case did not come under any of the exceptions to Section 92 and therefore the evidence was inadmissible. It, however, went on to consider that evidence and came to the conclusion that the trial Court had correctly decided that Raza Husain had not signed as a surety but for consideration.

2. The appellant's learned Counsel argues first, that the learned District Judge decided this point of law wrongly and secondly, that his decision on the question of fact is vitiated by serious misdirection and error. Dealing with the first point, we have no doubt that the learned District Judge decided it erroneously. A series of rulings have been cited before us, beginning with Sheo Prasad Ram Prasad v. Gobind Prasad, AIR1927All292 , in which it was held:

Evidence to show that an instrument like a promissory note, the title to which generally passes by delivery, was delivered conditionally or for a special purpose only, and not for the purpose of transferring absolutely the property therein, is not only admissible but is precisely the class of evidence contemplated by the provision in Section 46, Negotiable Instruments Act and in Section 92, Evidence Act.

3. Other rulings are Bhogi Ram v. Kishore Lal, AIR1928All289 , which approves Sheo Prasad Ram Prasad v. Gobind Prasad, AIR1927All292 , Moolji Murarji Sunderji v. M.C. Pinto, A.I.R. 1926 Sind. 156, a Sind decision, which is directly in point, and Panchapakesa Ayyar v. Ayyaswami Ayyar107 I.C. 510 (Mad.). Such evidence is frequently led in Court, and we have never heard it objected to before. We have no doubt that the view urged by the appellant's learned Counsel, which is based upon the consensus of opinion of many High Courts, is the correct view. Turning to the question of fact, we find that there are some errors in the (learned District Judge's judgment which might vitiate the finding of fact. In the first place he states that the only evidence in favour of the view that Raza Husain signed only as a surety is the statement of Mohammad Husain alone and his own account books. The facts, however, are that the ledger relied upon by the appellant is not his own ledger, but is the ledger of the plaintiff. Then again the District Judge remarks that it is almost inconceivable that the fact that Raza Husain signed as a surety would not have been entered in the pronote. We, however, are of opinion that this fact is seldom or never entered in a pronote where a man signs as a surety. He merely makes himself jointly and severally liable as joint signatory without any specification of the capacity in which he has signed. Some other remarks also show that the learned Judge held erroneous views about the liability of a surety in such a transaction. On this account, we have read the evidence with the view of forming an opinion of our own as to the correctness of the decision on this question of fact. In the ledger of the plaintiff a "khata" was opened in