KUNHIRAMAN Vs. PADMAKSHI

JUDGEMENT

(1.) Appellant plaintiff was the promisee of a promissory note Ext. A1 dated 5-2-1967 executed, on the concurrent findings of the courts below, by his deceased elder brother Krishnan, husband of defendant 1 and father of defendants 2 and 3. Ext. A1 is for a consideration of Rs. 5000/- which is made up of sums due to the plaintiff from Krishnan's business on settlement of accounts and of money advanced by him to Krishnan and contains a promise to pay it on demand to the plaintiff or order with interest at 5% per annum. In the plaint the plaintiff repeated the statement in Ext. A1 and claimed a decree for the amount and interest except a sum of Rs 2,000/- which he alleged had been paid by Krishnan on 8-11-1967. So far at relevant defendants 1 to 3 who contested the suit denied the execution of Ext. A1 by Krishnan and its being supported by consideration. At the trial the plaintiff (Pw. 1) stated that there was no cash payment under Ext. A1 and that the consideration consisted of the amount due to him from the business. The courts below found that Ext. A1 was executed by Krishnan and that in view of the conflict between the recital in Ext. A1 and the evidence of Pw. 1 about the consideration and the omission to examine the witnesses who mediated between the plaintiff and Krishnan at the time of Ext. A1, the presumption under S.118(a), Negotiable Instruments Act was sufficiently rebutted. The appellate Judge also added that under such circumstances the burden was heavy on the plaintiff to prove that Ext. A1 was fully supported by consideration As this had not been done the courts dismissed the suit. (The plaintiff had clubbed a claim for arrears of rent with the prayer for the amount under Ext. A1 but this claim which was rejected by the Trial Court had not been pursued further).

(2.) The plaintiff has not proved the consideration mentioned in Ext. A1 and he has also given evidence which to a certain extent conflicts with the recital in Ext. A1. The main question that falls to be considered is whether this circumstance has relieved the defendants of the obligation to discharge the presumption under S.118 and thrown the onus on the plaintiff to establish the consideration for Ext. A1 S.118(a) reads:

(3.) The execution of the promissory note having been proved, there is a presumption, which is one of law, that it was made for consideration, a presumption which would entitle the plaintiff to a decree unless the presumption is rebutted by the respondents. Counsel for the respondents argued that the presumption can be discharged not only by direct evidence but even otherwise including the admissions of the plaintiff and that here, besides the direct evidence of the first defendant as D.W. 1 denying the consideration, the variance between the recital in Ext. A1 and the evidence of the plaintiff as Pw. 1 about the nature of the consideration, rebuts the presumption and shifts the burden back to the plaintiff. Counsel is right in his contention as to the mode in which the presumption could be discharged although it is not exhaustive and it requires to be examined whether it has been discharged as urged by him and whether the variance operates as a rebuttal of the presumption. The first defendant has no personal knowledge of the promissory note and her denial of consideration is of no avail to discharge the burden apart from the nature of the burden that requires to be discharged. Before considering the effect of the partial divergence between the recital in Ext. A1 and the evidence of Pw. 1 on the presumption, it is worth while to refer to certain decisions where the scope of S.118(a) has been examined. I shall start with Tarmahemed v. Tyeb Ibrahim AIR 1949 Bom. 257, where Chagla, C. J. sitting with Bhagwati J. explained the position at some length. The head note which adequately reflects the decision reads: