1. It is not quite clear that this really was a benami transaction; but, assuming that it is we do not think that the payee and holder of a promissory note is debarred from suing on it by reason of the fact that a third person is really interested in it. No doubt it has been often held in suits relating to land that a benamidar is not competent to sue in his own name. But there is a great distinction between cases of that sort and the case of negotiable instruments. The distinction between suits relating to immoveable property and suits on contracts appears to be recognized by the Privy Council Gopeerkrist Gosain v. Gungapersaud Gosain 6 M.I.A. 72 and Hari Gobind Adhikari v. Akhoy Kumar Mozumdar I.L.R. 16 Cal. 364. In the case of negotiable instruments especially it would be most mischievous in our opinion to hold that the holder and payee of an instrument may be put to proof as to whether the money advanced was his own. We can find no reported authority in favour of the plea now suggested. We entirely disagree with the unreported decision in Ganapati Naicken v. Saminatha Pillai Civil Revision Petition No. 578 of 1895 unreported.
2. We must reverse the decrees of the Courts below and the plaintiff must have a decree against the first defendant as prayed with costs throughout.