Research › Browse › Judgment

Allahabad High Court · body

1941 DIGILAW 26 (ALL)

Rishi Kesh v. Brij Mohan Lal Alias Munnu

1941-03-07

body1941
JUDGMENT Bennett, J. - This is an application in revision u/s 25 of the Small Cause Courts Act. A suit was brought by a minor named Brij Mohan Lal against two other minors, Rishi Kesh and Brij Behari on the basis of a promissory note which purported to have been executed by one Babu Ram, father of Rishi Kesh and Brij Behari, in favour of Kashi Nath, father of Brij Mohan Lal. The defence was a denial that the document had been executed by Babu Ram, but the defendants made it clear in their additional pleas that this denial was based on ignorance of the execution and not on any definite knowledge that the promissory note had not been executed by Babu Ram. There was no suggestion that the writing or signature had been forged. The minor defendants, it should be noted, were under the guardianship of an uncle named Pirthi Pal, who appears to have been the brother of Babu Ram as he is described as their real uncle. 2. The lower Court considered that the promissory note had been proved by the evidence of a witness named Darbari Lal who deposed that be was in a position to recognise the signature and handwriting of Babu Ram because the latter had written several deeds for him. He further deposed that the promissory note and also the receipt (Exs. 1 and 2) "appear to be scribed by Babu Ram and bear his signature." It would seem from this that the witness intended to say that he thought the writing was Babu Ram's writing and that he was confident that the signatures were those of Babu Ram. It is, however, not quite clear whether he intended to draw any such distinction between the actual writing of the promissory note and the signature. 3. It is submitted in this application in revision that the evidence of Darbari Lal is insufficient to prove execution and further that the suit should not have been decreed in the absence of evidence to show that there was consideration for the promissory note. 4. In support of these contentions I have been referred to three cases, AIR 1933 394 (Oudh) AIR 1933 1029 (Lahore) and Anumolu Narayana Rao and Another by their mother and guardian Anumolu Ramadevamma Vs. Ghattaraju Venkatappayya and Others, (1937) ILR (Mad) 299 5. 4. In support of these contentions I have been referred to three cases, AIR 1933 394 (Oudh) AIR 1933 1029 (Lahore) and Anumolu Narayana Rao and Another by their mother and guardian Anumolu Ramadevamma Vs. Ghattaraju Venkatappayya and Others, (1937) ILR (Mad) 299 5. In the Oudh case the plaintiff brought a suit on the basis of a promissory note purporting to have been executed by the defendant and the defendant denied having borrowed any money from the plaintiff. It was held by Nanavutty J. that it was for the plaintiff to prove not only the execution of the promissory note but also the passing of consideration. 6. It will be observed that in this case the suit was between the alleged principals to the transaction and there was a definite denial by the defendant that he had borrowed the money. In the present case the suit is between the sons of the parties to the promissory note and the defence is based on absence of knowledge. 7. In the Lahore case the suit appears to have been brought by the party in whose favour the promissory note was alleged to have been executed, and the defendants were the sons of the deceased executant. The sons denied execution by their father. It was not alleged that the document had been written by the deceased executant, but only that it bore his thumb mark. It was held that in these circumstances it was necessary that the plaintiff should prove by clear, cogent and reliable evidence that the thumb-impression on the document was really that of the deceased executant. 8. It is clear, therefore, that the facts in the Lahore case were different from the facts in the present case. 9. In the Madras case it was said that in a suit on a promissory note purporting to have been executed by the father of the defendant, the burden of proof is not the same in respect of the claim against his sons as that applicable to the claim against the father. The burden of proof was held to lie on the plaintiff to prove the debt like any other debt. 10. The burden of proof was held to lie on the plaintiff to prove the debt like any other debt. 10. Another case was referred to, namely AIR 1935 130 (Rangoon) in which the Rangoon High Court held that where there Was a denial by the defendant that he had promised to pay the sum to the plaintiff, the burden of proof of the loan lay on the latter. 11. If the evidence of Darbari Lal is accepted as sufficient to prove the execution of the document by Babu Ram, the question remains whether it was also necessary for the plaintiff to prove consideration for its execution. No evidence was produced by either side on this point, presumably because neither party had any knowledge of the alleged transaction. Section 118 of the Negotiable Instruments Act provides that until the contrary is proved it shall be presumed that every negotiable instrument was made or drawn for consideration. Learned Counsel for the applicant contends on the basis of the cases cited that where a promissory note is denied, it is not sufficient that it should be proved: it is also necessary that consideration for it should be proved. I find it difficult to accept this contention because it is not supported by Section 118. No distinction is drawn in that section between admission of execution and proof of execution, and I should have thought that it was immaterial whether execution was admitted or was proved. In either case I should have thought that the presumption referred to could be made. 12. In the present case, although neither party may have had any knowledge of the circumstances of the loan, it would certainly appear that the defendant could have produced evidence to disprove execution of the promissory note by Babu Ram, if actually it was a forgery. Presumably Pirthipal, who represented the minors, was acquainted with Babu Ram's handwriting and signature, and had the document been forged, we might have expected Pirthipal himself to have gone into the witness box and to have said so. He did not do this. There was no express denial of the writing and signature and no request for expert examination of the writing and signature. He did not do this. There was no express denial of the writing and signature and no request for expert examination of the writing and signature. I do not consider in these circumstances that it would be justifiable to hold that the lower Court was not warranted in accepting the evidence of Darbari Lal as sufficient to prove the execution of the document, and in my opinion once the document is proved the presumption provided by Section 118 of the Negotiable Instruments Act applies. I find therefore no good ground for interference and I dismiss the application with costs.