Judgment :- MISHRA, J. 1. Plaintiff/appellant has preferred this appeal under Clause 15 of the Letters Patent of this Court, against judgment by a learned single Judge under which he has held that a promissory note said to have been executed by defendants 1 and 2 who are father and son in his favour on 25.11.1976 for a sum of Rs. 70,000/- is not valid in law. According to the plaintiff/appellant, the date of the promissory note and the name of the promisee were not filled up in the promissory note and the defendants had authorised the plaintiff to fill up those particulars himself. Accordingly, the plaintiff filed the suit without filling those particulars but sought permission of the Court and after such permission filled up those particulars and re-filed the original promissory note. According to the plaintiff/appellant when the defendants failed to pay the interest due under the promissory note for two months, he pressed for the same and the third defendant viz. the wife of the first defendant executed a letter of guarantee on 1.2.1977 for repayment of the loan. Learned single Judge has noted in his order. “All the three defendants executed the letter of guarantee in favour of the plaintiff acknowledging the liability under the promissory note. Thus, the defendants 1 and 2 as principal borrowers and the 3rd defendant as guarantor are jointly and severally liable for the suit claim.” In the common written statement, defendants 1 and 2 denied the borrowing but said that they had signed a blank promissory note and given it to the plaintiff. They pleaded that the plaintiff had several concerns in different names as partners and second defendant had dealing with the plaintiffs various concerns and he (plaintiff) habitually took blank promissory notes from the borrowers and in particular took the signatures of defendants 1 and 2 in blank promissory notes mentioning the figure of Rs. 70,000/- and the year 1971 and another blank promissory note for a similar sum in 1973. According to them, neither the date nor the name of the promisee was mentioned in the said promissory note, and they had duly settled the amounts due under the dealing with the plaintiffs concern but the plaintiff did not return the promissory notes. According to them, the letter of guarantee was signed only on a blank paper. According to them, neither the date nor the name of the promisee was mentioned in the said promissory note, and they had duly settled the amounts due under the dealing with the plaintiffs concern but the plaintiff did not return the promissory notes. According to them, the letter of guarantee was signed only on a blank paper. The defendants came forward with an additional written statement that the promissory note was vitiated by material alteration and that the suit was liable to be dismissed, since the unfilled paper that had been filed with the plaint was not a promissory note on the date of the filing of the suit. 2. The trial court originally framed four issues and on the filing of the additional written statement, two additional issues, viz., (1) Is the suit liable to be dismissed for reasons set out in the additional written statement? and (2) Whether the suit promissory note is vitiated by material alteration, Learned judges who framed the issues and the additional issues respectively were not to hear the suit. It came up for hearing before T.N. Singaravelu, J., who has entered into the case saying: “This is an unusual suit filed by the plaintiff on a blank promissory note without the date of the promissory note and the name of the promisee. However, even when the name of the promisee is not found in the negotiable instrument, the plaintiff has chosen to file the suit on the promissory note in his own name. In other words, it is very important to note that the suit is not based on the original cause of action but only on the promissory note purporting to bear the date 23.11.1976. It is strenuously contended on behalf of the defendants that the suit on a blank promissory note without the particulars of date and the promisee, is not a negotiable instrument in the eye of law, and therefore, the suit itself is not maintainable. Therefore these points covered by the additional issues were taken as preliminary issues at the time of trial.” He has on the two additional issues, found against the plaintiff/appellant in these words, “The plaintiff who claims to be the promisee had not filled up the name of the promisee or the date of the promissory note within a reasonable time. Therefore these points covered by the additional issues were taken as preliminary issues at the time of trial.” He has on the two additional issues, found against the plaintiff/appellant in these words, “The plaintiff who claims to be the promisee had not filled up the name of the promisee or the date of the promissory note within a reasonable time. It may be recalled that the instrument is dated 25.11.1976 and the suit was filed on 2.2.1980 relying upon a letter of acknowledgment. Even after the filing of the suit, the plaintiff waited for two years and nine months after the written statement and the additional written statement were filed. By no stretch of imagination, can it be said that the plaintiff exercised the statutory authority under S. 20 of the Negotiable Instruments Act within a reasonable time, in as much as he has filed the suit on the promissory note with the name of the promisee and the date of the promissory note left blank, the instrument is not valid in law. Therefore, the plaintiff has to be nonsuited since he has not even cared to file the suit on the original cause of action. Thus, even if it is held that there is no material alteration in the promissory note, the instrument itself is invalid and no suit can be filed on the promissory note even without the date of instrument which seriously prejudices the defendants with reference to law of limitation, etc. Further, the plaintiff appears to be a professional money lender and he has been keeping the blank instrument with him for several years and such a transaction, even if the defendants have signed their names in the incomplete promissory note, should not be upheld on grounds of public policy also. It is not as if the instrument is a bill of exchange, and it is gathered from the evidence that he gets signatures of the drawers on blank promissory notes and then uses them to his advantage whenever required. Thus, the sanctity of the promissory note is lost and such a shady transaction cannot be upheld by a court of law.” Learned single judge has concluded his judgment mainly on the ground of the maintainability of the suit which according to him was filed on the basis of a promissory note which had unfilled entry as to the date of the promissory note. Yet he has referred to the evidence of the parties and said as follows: “The evidence of P.W. 1 also fortifies my conclusion on this aspect. P.W. 1 is the plaintiff and he is a partner of Uttam Pradhat Industries comprising of six partners. The 1st defendant is doing the same business in stainless steel and he is having transactions in stainless steel with the plaintiff firm. Admittedly P.W. 1 used to finance the 1st defendant by advancing moneys for commission and interest. P.W. 1 further conceded that he used to advance moneys in the name of the other partners of the firm also. P.W. 1 is admittedly an income tax and wealth tax assessee and he has conceded that the suit amount advanced to the defendants will be reflected in his income tax returns, but he has not chosen to reduce the same. Be that as it may, he has not even produced his account books to show on what date he advanced the sum of Rs. 70,000/- to the defendants 1 and 2. He has stated in the same breath that he does not have any accounts for his individual transactions, and therefore, the account books will not reflect this transaction on the promissory note. He has also not produced the firms accounts. While so, it is ununderstandable as to on what basis he says that he advanced the sum on 25.11.1976. On the other hand, in cross-examination, P.W. 1 stated that he saw the promissory note in Court with the date and therefore he says that he advanced it on that date. Of course, it was urged on behalf of the plaintiff that the defendants have given a guarantee letter on 1.2.1977 and from that he infers the date of the promissory note when he is said to have lent moneys. But these acknowledgment letters Exs. P2 and P3 are also assailed by the defendants who have stated that the plaintiff, who is a professional money lender, has obtained their signatures in various blank forms and letter heads and used them in this case. A perusal Exs. P2 and P3 would show that there is force in the contention of the defendants, the typing and the rubber stamp seals are adjusted to the signatures. A perusal Exs. P2 and P3 would show that there is force in the contention of the defendants, the typing and the rubber stamp seals are adjusted to the signatures. Be that as it may, the more important point is, the date of the promissory note itself is blank and the subsequent filling, though with the permission of the Court, will amount to material alteration. Obviously the permission was granted without prejudice to the contentions of the defendants. Therefore, there is force in the contention of the defendants that they are having dealing with the plaintiff firm who were also dealing in the same stainless steel goods business and that the plaintiff or his partners have taken blank promissory notes from the defendants and filed the suit without even filling up the date under the authority given to them under S. 20 of the Negotiable Instruments Act. Now, the position is, the alteration affects the very contract itself, and no decree can be passed on such an instrument which had no legal existence on the date of the filing of the suit.” 3. It will be difficult for any person to deny that money lending, as a profession in our country, has degenerated and converted into a means or a weapon of exploiting the needy and the poor. It is difficult not to sympathise with the plight of a debtor who, for the reasons of constraint and contract alone, pays interest much in excess of the principal sum advanced to him by a creditor, who always has the advantage of dictating his terms and forcing the borrower to agree to any and all conditions that he chooses to enforce. Learned judges concern for the debtors by saying in the judgment, “the plaintiff appears to be a professional money lender and he has been keeping the blank instrument with him for several years and such a transaction, even if the defendants have signed their names in the incomplete promissory note, should not be upheld on grounds of public policy also,” has however, come in a case he has decided to dispose of on preliminary issues aforementioned and thus without there being any genuine effort to take into account the effect of the evidence adduced on behalf of the parties and the proof of the fact that the plaintiff was in the habit of taking signatures on blank papers and that in the case of the defendants also, he had obtained their signatures on blank paper. Ex facie , on the evidence that learned judge has himself quoted, it is difficult to accept that the defendants had not borrowed any money from the plaintiff and that the blank note handed over to the plaintiff was as desired by the plaintiff in course or their business transactions. The execution of the letter of guarantee for repayment of the loan belies any story of the defendants not receiving any loan from the plaintiff. We, however, propose to record no finding on this, for, if we do so, we shall be repeating the mistake in the impugned judgment by casualty speaking on the evidence when the question is whether it is right to say that the suit is not maintainable for along with the plaint the alleged promissory note was filed but it had blanks in particulars such as the name of the promisee and the date of the promissory note. 4. The Negotiable Instruments Act has defined a “promissory note” in S. 4 as an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. S. 13 of the Act contains the definition of an negotiable instrument and says. (1) A ‘negotiable instruments means a promissory note bill of exchange or cheque payable either to order or to bearer. S. 13 of the Act contains the definition of an negotiable instrument and says. (1) A ‘negotiable instruments means a promissory note bill of exchange or cheque payable either to order or to bearer. Explanation (i) A promissory note, bill of exchange or cheque is payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable. Explanation (ii) - A promissory note, bill of exchange or cheque is payable to bearer which is expressed to be so payable or on which the only or last indorsement in an indorsement in blank. Explanation (iii) Where a promissory note bill of exchange or cheque, either originally or by indorsement, is expressed to be payable to the order of a specified person, and not to him or his order, it is nevertheless payable to him or his order at his option. (2) A negotiable instrument may be made payable to two or more payees jointly, or it may be made payable in the alternative to one of two or some of several payees.” The essential requisite of a promissory note is that there should be a person signing a document, on unconditional undertaking, to pay a certain sum of money only to or to the order of the a certain person or the bearer of the instrument. It shall be a negotiable instrument even if it does not contain the name of the promisee, because the maker of the instrument promisee his attachment to the instrument and his liability is always to the bearer of the instrument. S. 20 of the Act, however, has taken notice of inchoate stamped instrument in these words, “Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.” The inchoate situation is no bar to endorsements, as are found recognised in S. 49 of the Act which reads: “The holder of negotiable instrument indorsed in blank may, without signing his own name, by writing above the indorsers signature a direction to pay to any other person as indorsee, convert the indorsement in blank into an indorsement in full; and the holder does not thereby incur the responsibility of an indorser.” But this has a limitation recognised by S. 87 of the Act which reads, “Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time Of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;” 5. Before, however we proceed to consider more about the effect of the filling in the blanks in the note by the plaintiff, after fifing the suit, but before orders of the Court, we may take notice of the rule engrafted in S. 118 of the Act which says, “Until the contrary is proved, the following presumptions shall be made:— (a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. (b) as to date that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer that every transfer of a negotiable instrument was made before its maturity; (e) as to order of instruments that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained for its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.” In a somewhat similar facts there has been a case in Patna in the case of Brijbhushan v. Ramjanam AIR 1932 Patna 324 in which the hand-note) in suit, Ex. 1, did not mention the name of the payee at all. The argument before the High Court was that no decree could be passed on such an instrument and also stated that under S. 20, Negotiable Instruments Act, it was open to the payee to fill in the blank instrument, but unless he did so, he is not entitled to obtain any decree. Reliance for this proposition was made on a judgment of this court in the case of V.C.T.M. Chidambaram Chettiar v. Ayasami Thevan I.L.R. 40 Madras 585 = 4 L.W. 261. Reliance for this proposition was made on a judgment of this court in the case of V.C.T.M. Chidambaram Chettiar v. Ayasami Thevan I.L.R. 40 Madras 585 = 4 L.W. 261. Learned Judge, who noted this contention also in his judgment that it was urged before him that the presumption under S. 118 of Negotiable Instruments Act that every negotiable instrument was made or drawn for consideration and that the holder of a negotiable instrument is a holder in due course does not arise in the case of a promissory note, which is not a negotiable instrument within the definition in S. 4 of the Act and that, therefore, in this case, the onus was on the plaintiff to prove that he had made an advance to the defendants 1 and 2 and that the hand-note was executed in his favour. There are not many observations in the judgment of the learned judge except that after taking notice of the fact that the above contentions were not resisted by the counsel for the opposite party he found as follows: “The contentions are not resisted by the learned advocate for the opposite party though I may perhaps incidentally observe that there is reason to doubt whether the definition of ‘holder’ in S. 8 Negotiable Instruments Act, covers bearer but has urged that the lower court has decreed the suit upon a consideration of all the evidence and has found that the plaintiff has satisfactorily proved that he advanced a loan in question and got the hand-note from the defendant, and he has further urged that the plaintiff was entitled to succeed on the loan itself, if, for technical reasons he was not entitled to succeed on the hand-note. The ruling in Dhaneshwar Sahu v. Ramrup Gir AIR 1928 Patna 426, which has been cited by the learned advocate, supports the contention that the hand-note failing the plaintiff was entitled to sue on the loan itself. It cannot however he said, in the present case that the plaintiff sued on the loan and not on the hand-note alone. It is also clear that the lower court, placed the onus on the defendant in the same manner as if S. 118, Negotiable Instruments Act, had applied in the circumstances of the case. It cannot however he said, in the present case that the plaintiff sued on the loan and not on the hand-note alone. It is also clear that the lower court, placed the onus on the defendant in the same manner as if S. 118, Negotiable Instruments Act, had applied in the circumstances of the case. It is impossible to say what the result would have been if the lower court had been asked to approach the matter from the point of view that is now urged before me, namely, that the plaintiff was suing not upon the hand-note but upon the loan. Nor can the matter be approached from that point of view without an amendment of the plaint which may or may not now be open to the plaintiff. The loan was small, namely, Rs. 60/- only, out in view of the illegalities and difficulties pointed out on behalf of the petitioners, to say nothing of the vexed question of the liability of the joint family it is impossible to let the decree below stand. Mr. P.P. Verma as amicus curiae has placed me under obligation by referring to Sheonandan Pandey v. Ramdhan Pandey CIV. Rev. 55 of 1930 disposed of by Kulwant Sahay, J., on 17th December 1930, in which that learned Judge found that the lower Court had misplaced the onus in a suit on a hand-note and accordingly remanded the case for a fresh hearing after placing the onus of proof upon the right party. Rev. 55 of 1930 disposed of by Kulwant Sahay, J., on 17th December 1930, in which that learned Judge found that the lower Court had misplaced the onus in a suit on a hand-note and accordingly remanded the case for a fresh hearing after placing the onus of proof upon the right party. I set the decree of the lower court aside and direct that the case be retried after proper opportunity given to the plaintiff to amend his plaint if he so desires and satisfied the lower court that an amendment ought now to be allowed.” The propositions in the above judgment are (1) Where a hand-note does not mention the name of the payee at all, no decree can be passed on such instrument, the payee can fill in the blank instrument and unless he does so, he is not entitled to sue and obtain a decree on the instrument (2) The presumption under Section 118 of the Negotiable Instruments Act, that every Negotiable Instrument was made or drawn for consideration and that the holder of a negotiable instrument is a holder in due course do not arise in the case of a promissory note which is not a negotiable instrument within the definition in S. 4 of the Act and such a case is not a suit based on hand-note, as it does not mention the name of the payee. The onus is on the plaintiff to prove that he made advance to the defendant and that the hand-note was executed in his favour and (3) the plaintiff, who sues on a distinctive hand-note and hand-note without filling up the blanks is entitled to sue on the loan after amending the plaint. These principles are well settled by now and it is difficult to conceive of any other view. There are, however, certain improvements in the approach, which, in our opinion, are relevant for the appreciation of the question before us. In a Division Bench decision of the Patna High Court in the case of Hridhaya Singh v. Kailash Singh AIR 1940 Patna 377 the plaintiff filed a suit showing that the defendant had taken a loan of Rs. 1,000/- for which he had executed the note. In a Division Bench decision of the Patna High Court in the case of Hridhaya Singh v. Kailash Singh AIR 1940 Patna 377 the plaintiff filed a suit showing that the defendant had taken a loan of Rs. 1,000/- for which he had executed the note. The defendants case was that the endorsement was made by him on a blank piece of paper and was intended to part as collateral security for a loan advanced by one ‘X’ to another ‘Y’, a relation of the plaintiff. The name of the payee in the instrument was that of the plaintiff. The defendant explained this by asserting that when the defendant signed the instrument it was blank and that subsequently the plaintiffs name was written out as payee. On these facts, the Division Bench observed as follows: “The effect of assigning a paper stamped in accordance with the law relating to the negotiable instruments is dealt with in S. 20, Negotiable Instruments Act, 1881, which provides that where a person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments, then in force in British India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable Instrument, for any amount specified therein and not exceeding the amount covered by the stamp. It is contended on behalf of the defendant-respondent that this Section does not authorise the person to whom the stamped and signed paper is delivered to insert in it as payee the name of anyone but himself. In this connection reference was made to S. 4 of the Act which defines a promissory note as an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking singed by the maker to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. The promissory note in question does, of course, promise to pay the sum mentioned unconditionally to a certain person, namely, the plaintiff, and I can see nothing in that Section which, in any way, curtails the general authority conferred by S. 20 on the person to whom a stamped and a signed paper is delivered to convert it into a negotiable instrument payable to any specified person. This appears also to be the law in England. In Cruchely v. Clarance (1813) 2 M & S. 90 the facts were that a bill of exchange was drawn in Jamaica upon one Henry Man of London leaving a blank for the name of the payee. This bill was negotiated in England by one Vashon who endorsed it to the plaintiff in payment of an old debt. The plaintiff inserted his own name as the payee. In a suit on the bill, the defence was that the plaintiff had no right to insert his own name in the bill, Lord Ellenborough, C.J. disposed of this defence in the following words: “As the defendant has chosen to send the bill in the world in this form the world ought not to be deceived by his acts. The defendant by leaving the blank undertook to be answerable for it when filled up in the shape of a bill.” Bayley, J. said; The signing the bill in blank without the name of the payee was an authority to a bona fide holder to insert the name. Twomey, J. in 17 IC 915 ( M.N.P.L. Firm v. Kirwan Gyan also held that a payee can fill in a blank inchoate instrument and sue on it himself after filling it or endorsing it to some one. This case was referred to by Dhavle, J. in 13 P.L.T. 606 Brijbhusan Pande v. Ramjanan Kuer (1932) 19 AIR 324). In my view, the defendant cannot be heared, to challenge the authority of Shammandan Prasad Singh on that particular ground in view of the endorsement which he himself wrote across the stamps on the instrument as a hand-note. He chose to send this instrument into the world in a form showing that the document was a hand-note and therefore he is answerable for it. He chose to send this instrument into the world in a form showing that the document was a hand-note and therefore he is answerable for it. In (Chulhal Lal Das v. Kuldip Singh 1831 18 AIR Pat 267 = 12 P.L.T. 231 it was held that when the execution of a hand-note is admitted, the onus of proof of showing that no consideration passed is thrown entirely on to the defendant. In 12 P.L.T. 233 (Ramlakhan Singh v. Gog Singh, it was held that an admission by a defendant regarding the putting of a signature or a thumb mark on a document, while he maintains that the paper when he signed it was blank, is not such an admission of the execution of the document as to throw the burden of proving his case upon him and it is for the plaintiff in such a case to prove primarily the due execution of document relied upon by him. The case must be distinguished from the present where the defendant in his own hand-note. There is also a decision of a single Judge of this Court in Sahdeo Mauar v. Fulesar Monia 11 P.L.T. 606, in which it was held that in a suit on a hand-note where the defendant admits that he put his thumb mark on a blank piece of paper but asserts that it was intended that a Kabuliyat should be written out on the paper, the burden of proof lies on the defence to explain how the hand-note bearing the defendants thumb impression came into existence. For the reasons which I have given above I would hold that on the fact of this case the defendant is not entitled to deny that the document is a hand-note and the onus of proof does not lie on the plaintiff in such a case” After saying as above, the learned Judge delivering the judgment of the court added: “As in my view the instrument with which we are concerned is a negotiable instrument it is not open to the defendant to plead that the holder of the note, namely the payee, is not the person entitled to recover on it, that is to say, the defendant cannot plead that the person to whom the money is due is not the plaintiff, who is the specified payee Sharmandan Prasad Singh, (see Subha Narayana Vathiyar v. Ramaswami Aiyar 30 Madras 88-Kulwant Sahay, J. sitting singly, disagreed with this decision in ( Srijog Singh v. Deo Saran Singh 11 P.L.T. 255, but the decision of Kulwant Sahay, J., was disapproved by a Division Bench in ( Pearey Pasi v. Gauri Lal 13 Pat 655. Although this last mentioned case has been overruled on another point by the Full Bench in (Ghanshyam Das v. Ragho Sahu 16 Pat 74, it is still good authority for the view that the decision in 11 P.L.T. 255 (Sargug Singh v. Deo Saran Singh is not good law. In the result I would allow the appeal of the plaintiff and restore the decision of the Munsif.” The Bench decision of this court referred to him in Brijbhusan v. Ramjanam Kuer AIR 1932 Patna 324 is a case in which two questions were referred to, viz. (1) whether a promissory note payable to a person or order or bearer is illegal and void and whether the lender can be given a decree for money in a suit and (2) whether the lender can be given a decree apart from the hand-note for the money lent upon the note. To the first question the Bench answered on the basis of the law then in force (The Paper Currency Act 2 of 1910) which under S. 26 declared the making of such a note as that referred to, illegal. To the first question the Bench answered on the basis of the law then in force (The Paper Currency Act 2 of 1910) which under S. 26 declared the making of such a note as that referred to, illegal. On the second question while one learned Judge said “it is not possible to answer this question without further knowledge of the facts, for, it is impossible on the information given by the District Munsif, to decide whether there was any obligation apart from the note, the fact that the alleged note were contemporaneous not being decisive on the point” the other learned Judge while agreeing that the second question would not be answered without sufficient materials on record, added that if there is an obligation. Apart from one under the note itself, it may clearly be enforced. The fact that the loan and the note are contemporaneous is not conclusive on the non-existence of such obligation, attention may be drawn to the decision in Subba Narayana Vathiyar v. Ramaswami Aiyar I.L.R. 30 Madras 88. 5 A. The Full Bench decision of this court in Subba Narayana Vathiar v. Ramaswami Aiyar -I.L.R. 30 Madras 88, referred to in Hridayasingh v. Kailash Singh A.I.R. 1940 Patna 377 is one in which it is held in no uncertain terms that S. 78 of the Negotiable Instruments Act provides that subject to the provisions of S. 82(c) which do not apply here the payment of the amount due on a promissory note must, in order to discharge the maker, be made to the holder and that; “These provisions are imperative and in our opinion preclude the maker when sued on the instrument from pleading discharge by payment to any one but the holder. “Holder” is defined in S. 8 as a person entitled in his own name to the possession of the note and to receive or recover the amount due thereon from the parties thereto. “Holder” is defined in S. 8 as a person entitled in his own name to the possession of the note and to receive or recover the amount due thereon from the parties thereto. Having regard to the prevalence of benami transactions in this country, that is, to the practice of acquiring property or rights in the name of another, we consider the use of the words “entitled in his own name” in the definition of holder most significant, and that they were inserted by the Legislature for the purpose of preventing any one from claiming the rights of a holder under the Act on the ground that the ostensible holder was a mere benamidar.” Besides as above, this judgment is an authority on the proposition that once the instrument is proved, the maker is precluded from denying the payees right to sue. We have thus seen that S. 20 of the Act has been recognised as a provision giving to the holder of the promissory note authority to make or complete as the case may be, a wholly blank or incomplete negotiable instrument but S. 87 of the Act declares that any material alteration of a negotiable instrument would render the same void as against anyone who is a party thereto, if such alteration is effected without his consent, but, it will not be void if alteration is made in order to carry out the common intention of the original parties. In such a state of law, one is reminded of S. 65 of the Indian Contract Act, which says that when an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it. The two parts of this provision when an agreement is discovered to be void and when a Contract becomes void have fallen for decision in several cases. We, in the instant case, however, are not required to go into the deliberate use of the word ‘discovered’ to be in the case of an agreement whereas in the case of contract the word used is becomes void. We, in the instant case, however, are not required to go into the deliberate use of the word ‘discovered’ to be in the case of an agreement whereas in the case of contract the word used is becomes void. There is, however, a possibility of a balance between the two situations (1) where passing of consideration and the execution of the promissory note are found simultaneous or contemporaneous and (2) where the lending is earlier to the execution of the note i.e., promissory note is subsequently executed only by way of acknowledgment of the loan and as security for it. In the former case S. 91 of the Evidence Act would intervene which says: “When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which a matter is required by law to be reduced to the form of a document, no evidences shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provision herein-before contained. Exception 1.- When a public officer is required, by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2.- Wills admitted to prove in India may one original only need be proved by the probate. Explanation 1.- This Section applies equally to cases in which the contract, grants or dispositions of property referred to are contained in one document and to cases in which the are contained in more documents than one. Explanation 2.- Where there are more originals, one original only need be proved. Explanation 3.- This statement, in any document whatever, of a fact other than the facts referred to in this Section, shall not preclude the admission of oral evidence as to the same fact”. The latter obviously will not attract S. 91 of the Evidence Act, but shall attract S. 65 of the Contract Act in the sense that the contract is not void. What is void is the instrument, the contract being independent of the instrument which is executed only to evidence the loan. The latter obviously will not attract S. 91 of the Evidence Act, but shall attract S. 65 of the Contract Act in the sense that the contract is not void. What is void is the instrument, the contract being independent of the instrument which is executed only to evidence the loan. A Division Bench of this Court has gone into this aspect of the law in the case of Rangaswami Reddy v. Doraiswami Reddy AIR 1957 Madras 715 = 70 L.W. 583 and has stated as follows; after quoting S. 87 of the Negotiable Instruments Act:— “It is clear from this Section that a negotiable instrument which has been altered by the payee cannot be enforced by him. The question is whether the plaintiff is entitled to any relief in spite of this provision. If the finding of the appellate court had been that a sum of Rs. 1100 was lent by the plaintiff on 15th December 1947 and the promissory note subsequently executed was only an acknowledgment of loan and security for it, may well be that the plaintiff could obtain a decree on that loan in spit e of the subsequent promissory note becoming unenforceable. But the appellate Court has found that there was no payment of money on 15th December 1947 and the money was paid only on 20th December 1947 in pursuance of the promissory note executed on that date. In such circumstances, S. 91 of the Evidence Act would be an obvious bar to the admission of any evidence allunde to prove the passing of consideration under the promissory note. All the terms of the contract between the plaintiff and the defendant in respect of loan were reduced to writing and embodied in the promissory note. On account of the material alteration the promissory note in the original form has ceased to exist and the promissory note as materially altered has been rendered void and inadmissible.” Speaking on S. 65 of the Contract Act, the Bench has said as follows: “When an instrument which embodies a contract becomes un enforceable for some reason or other, it is not correct to say that the contract itself has become void. Of course, there is no question of the agreement being discovered to be void. Of course, there is no question of the agreement being discovered to be void. The contract between the parties is that in consideration of the money advanced by the plaintiff to the defendant, the defendant agrees to repay the said sum with interest thereon on demand. That contract as such has not become void. What has become void is the instrument containing the terms of the contract. The difficulty in the way of the plaintiff is the rule of law that when the terms of a contract are reduced to writing and that writing is inadmissible in evidence, no other evidence can be given of the terms of the contract. Here on account of S. 87 of the Negotiable Instruments Act the promissory note has become void and the plaintiff cannot be permitted to adduce any other evidence to prove the contract of loan. The promise to repay the amount of the loan is certainly a term, indeed an essential term of the contract. Of course, if there was a completed contract which existed before the execution of the promissory note in which case the promissory note may be treated as a security or voucher, an action would lie on such a contract even though the promissory note executed subsequently cannot be admitted in evidence for any reason.” The discussions that we have made until now have taken us to the conclusion that (1) if the loan and the execution of the promissory note are simultaneous or contemporaneous and a suit is filed to recover the loan advanced, it is a suit based on a document reduced into writing by the parties and if for a legal cause or valid reason the promissory note is not found valid, the suit may fail and (2) if loan is advanced on a promissory note as above, but it is a stamped instrument duly signed by the debtor and delivered to the creditor, then the creditor or any holder in due course of the instrument can fill in the blanks as to date, payees name etc. The holder of the note, however, cannot effect any material alteration without the consent of the person (debtor) who delivered the instrument to him unless it is made in order to carry out the common intention of the original parties. The holder of the note, however, cannot effect any material alteration without the consent of the person (debtor) who delivered the instrument to him unless it is made in order to carry out the common intention of the original parties. Filling up the blanks as to date, drawers amount or payee would not be material alteration attracting S. 87 of the Negotiab le Instruments Act. It is so, because, S. 87 is made subject to S. 20 of the Negotiable Instruments Act. Expression “material alteration” cannot mean filling up the blanks, but something different that would show that the original instrument has become different, that changes in the document cannot be explained by S. 20 of the Act and that it is not thus filling up the blanks by the holder in due course. Learned single Judge has, however assumed that the suit is one instituted on the promissory note and that it cannot fail for the reason that the promissory note which was presented with the plaint has certain blanks and even though the plaintiff obtained courts permission and completed the instrument by filling in the blanks, the suit is not maintainable. Subsequent filling up the blanks, according to him, has not cured the defect in the suit. For the conclusion that the suit has been one instituted on a promissory note, there is nothing disclosed in the judgment. There is also no discussion in the judgment that without the promissory note the plaintiff cannot sustain his claim. There is also nothing to show why it is said that the promissory note has been claimed as the basis of the loan. He has also not considered that a plaintiff, who has moved the Court has the option to amend the plaint and prove his case of advancement of loan, even if the instrument is found inadmissible. Unless specific findings are recorded, it will be unfair to say that the plaintiff instituted a suit on the promissory note and that the promissory note has not been proved to be a valid document. We have, however, good reasons to differ with the approach adopted by the learned single Judge for rejecting the suit on the ground that it was filled without all the blanks in the promissory note filled up before the institution of the suit. We have, however, good reasons to differ with the approach adopted by the learned single Judge for rejecting the suit on the ground that it was filled without all the blanks in the promissory note filled up before the institution of the suit. Facts we have already noticed that the payee got the instrument returned and entries and re-filed. There is no material, in fact, there is no inquiry or trial into the issue of material alteration in the promissory note, although learned Judge has made a reference to S. 87 in this behalf but has taken up this issue as preliminary issue, without evidence whatsoever. Plaintiffs case has suffered, on account of a serious mistake of law that filling up the blanks or completing a document has not been viewed as S. 20 of the Act has envisaged. The trial Court has not found that, apart from filling up the blanks, the plaintiff made any other alteration. Yet he has found the issue whether the suit promissory note is vitiated by material alteration against the plaintiff. A new kind of infirmity, however, has been noted on the principles of some judgments, which we feel, have to be viewed rather differently. There is no provision in the Negotiable Instruments Act to fix the period of filling up the blanks in the instrument before the suit is instituted and it is difficult basing only on the authorities of the English Courts to say that as in England so in India such filling up must be found to have been done within a reasonable time, otherwise it will be deemed to be a material alteration. Learned single judge has in his judgment referred to the case of Griffith v. Dalton 1940 (2) Kings Bench 264 for this proposition and almost followed it as an absolute law ignoring altogether a judgment of a learned single Judge of this Court in the case of M.P. RM. Irulandi Mudaliar v. Syed Ibrahim and others 1962 I M.L.J. 306. The precedence before him was that of an order in a petition for revision of an order of a District Munsif under which order he had declined to return the two promissory notes which were the subject matter of the suit before him for filling up the name of the payee. The precedence before him was that of an order in a petition for revision of an order of a District Munsif under which order he had declined to return the two promissory notes which were the subject matter of the suit before him for filling up the name of the payee. In the short order in this case, learned Judge has said: “The promissory notes were executed by one Muhammed Ibrahim for a sums borrowed at Rangoon. They are duly stamped in accordance with the provisions of the Indian Stamp Act. The promissory notes, however, did not bear the name of the payee; a space was left in blank for fill in up the name and it is the petitioners case that he was authorised to fill in his name at any time that he chose; but due to a mistake he omitted to fill in his name in the promissory notes before instituting the suit thereon. The suit was filed against the legal representatives of the executant, Muhammed Ibrahim as he had died by then. The petitioner realising that the payees name had not been filled up applied to the Court to return the two promissory notes to him to enable him to fill in the blanks and represent the same into Court. S. 20 of the Negotiable Instruments Act says that where a promissory note is signed and delivered to another person on a paper, properly stamped, leaving blanks, the person to whom the promissory note is delivered will prima facie have authority to make the document complete. If that Section were to be applied to his case, the petitioner will have the authority to fill in his name; and what he wants now to do is simply to exercise his power under that provision. It is not contended that if the petitioner had the authority of putting his name, the death of Muhammed Ibrahim would put an ??d to that right; the authority as a statutory one and also one coupled with an interest. The death of the person giving the authority cannot affect the right. But whatever that may be, it is unnecessary to decide here whether, in the circumstances of this case, the petitioner had authority statutory or otherwise to fill up the blanks. That question can be agitated by taking an issue in the suit. The death of the person giving the authority cannot affect the right. But whatever that may be, it is unnecessary to decide here whether, in the circumstances of this case, the petitioner had authority statutory or otherwise to fill up the blanks. That question can be agitated by taking an issue in the suit. At the present moment justice requires that the petitioner should be allowed to fill in the name in the promissory notes. This he will be allowed to do in the presence of the Head Clerk of the District Munsifs Court at a time appointed by him for the p urpose. The Head clerk will add an endorsement on the note that the name of the payee inserted on the date on which it is so done. This will not preclude the respondents from raising the contention that the promissory notes are inadmissible in evidence for want of proper stamp or that there were circumstance in the case to show that the petitioner had no authority.” The learned single judge has posed a larger question, whether the plaintiff is contitled to fill up the blanks long after the filing of the suit and answered against the plaintiff appellant in spite of the judgment in the case of M.P. RM. Irulandi Mudaliar v. Syed Ibrahim and others 1962 IMLJ 306. He has concluded before any consideration by saying: “I have carefully considered this argument and I am of opinion that until the drawees name is inserted before the filing of the suit the instrument is not a promissory note in the eye of law” We say so with respect that a promissory note has to be understood not only with reference to its definition under S. 4 of the Negotiable Instruments Act but also in the light of such provisions which permit endorsements and filling up the blanks. A rule that something not done within a reasonable time may give rise to suspicion about its genuineness is different from a rule requiring that all documents should be presented in Court in full and complete. While the former is a rule of prudence, the latter is a rule of procedure. We are satisfied in the instant case that rejection of a plaint or disposal of a suit on a preliminary issue of this kind will not be legally justifiable. While the former is a rule of prudence, the latter is a rule of procedure. We are satisfied in the instant case that rejection of a plaint or disposal of a suit on a preliminary issue of this kind will not be legally justifiable. When we say so, we do not, for a moment, intend to suggest that it will not be open to the Court in the course of the trial to take notice of the delay in filling up the blanks and on that basis drawn inferences as to the genuineness of the document along with other materials on the record. A preliminary issue on which a suit is disposed of is one as envisaged in O. 14 R. 2, Code of Civil Procedure and any issue of the type that has been taken up by the learned judge for the disposal of the suit is not covered by any of the rules therein as the issues aforementioned do not appear to relate to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Learned judge has gone beyond the obligations under the statute that where issues both of law and of fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only it may try that issue first if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force and for that purpose, may, if it thinks fit, postpone the settlement of the other issues only after that issue has been determined and may deal with the suit in accordance with the decision on that issue. We have already noticed that the pleadings and the facts in controversy alone determine the issues in a case and in the instant case there are issues both of law and of fact which should be tried together. 6. We have already noticed that the pleadings and the facts in controversy alone determine the issues in a case and in the instant case there are issues both of law and of fact which should be tried together. 6. Since we have found in our judgment that the issue as to the material alteration in the promissory note has not been tried in accordance with law and the learned single Judge has decided to dispose of the suit on preliminary issues as above and since we have also found that this has resulted in error of law, we are inclined to interfere with the impugned judgment and to remit the case to the trial court for disposal in accordance with law. It is a settled law that the filing of the suit on a claim based on a promissory note is a fact which is independent of the filing of the document itself and validity or otherwise of the document is not dependent upon the time of the presentation of the document in the Court, but the proof thereof in accordance with law. Our observations and findings on any fact in controversy in the instant suit, however are confined for a prima facie determination of the question whether there is any error in the judgment of the trial court or not. We have not endeavoured to record any finding of fact except on the question of law as afore-mentioned. 7. In the result, the appeal is allowed, the impugned judgment is set aside and the matter is remitted back to the trial court for disposal of the suit in accordance with law. On the facts of this case there shall be no order as to costs.