SUNDARAMMAL ALIAS SOWBHAGIAMMAL Vs. VSUBRAMANIA CHETTIAR

JUDGEMENT

(1.) This is an appeal from the decision of the Subordinate Judge of North Arcot giving judgment for the plaintiff in a suit on three promissory notes, which were executed by the 1st defendant who died before the trial. The Subordinate Judge has written a very careful judgment, and I do not find it necessary to dissent from any of the conclusions of fact at which he has arrived. He has decided the case on the ground that under the Negotiable Instruments Act, the burden is on the representative of the 1st defendant to show failure of consideration in whole or in part and ho has observed in the course of his judgment that but for the burden of proof being this way he would probably, on account of the suspicious circumstances of the various transactions to which he refers, have decided the suit against the plaintiff except to the extent of the consideration admitted by the 1st defendant in his written statement. Farran, C.J., in Moti Gulabchand v. Mahomed Tharia Topan 20 B. 367 held that the fact that the defendant in that case was a young man of extravagant habits who was kept cut of the enjoyment of his property which was in the hands of a Receiver was sufficient to throw the burden on to the plaintiff. It appears to me that the facts of the present case are very much stronger than the facts in Moti Gulabchand v. Mahomed Mehdi Tharia Topan 20 B. 367 and that they have that effect. The 1st defendant was a young man of extravagant habits, who, though, as the Subordinate Judge finds, he was supplied by his family with abundant means for his maintenance, borrowed in a very extravagant manner both from the present plaintiff and from others after he came of age, so that his elder brother was obliged to sue for partition. All the transactions in this suit took place before the 1st defendant obtained his share of the property on partition. The transactions with the present plaintiff fall under three heads. In the year 1906, the 1st defendant borrowed over Rs. 1,600 from the plaintiff and afterwards denied receipt of consideration. This put a stop to the transactions between the parties for sometime. But in 1908 they were resumed, and between March 1908 and May 1908 the 1st defendant is said to have borrowed from the plaintiff a sum of over Rs. 6,000 on promissory notes which have been made the subject of separate suits. Lastly, we come to the plaint transactions, three promissory notes for Rs. 3,000, Rs. 3,400 and Rs. 3,000 which are said to have been borrowed in June, August and November 1908. So that between March and November 1908, the 1st defendant is said to have borrowed more than Rs. 15,000 from the plaintiff.

(2.) The Subordinate Judge has enumerated the various suspicious circumstances which attended these transactions, and I think if only necessary to refer to one or two of them as sufficient to shift the burden. The Subordinate Judge finds that the plaintiff has not means to make the advances shown in his accounts &o the 1st defendant and his other clients. According to the plaintiff s own evidence his transactions with other clients were on a very small scale. He says that their total indebtedness to him was Rs. 3,000, whereas he purports to have made advances of no less than Rs. 15,000 in the course of these few months to the 1st defendant. The Subordinate Judge finds, and I agree with him, that the plaintiff s accounts do not show that he had enough money to make such advances. It is, of course, possible that these accounts may not fully represent his transactions and may have been prepared for the purpose of deceiving the income-tax authorities. In the course of cross-examination the plaintiff set up various false cases as to how he got the money. One absurd story he told was that he had sold all his wife s jewels for the purpose of getting money to make these advances to the 1st defendant. I think that is quite incredible. I do not believe the allegation of the 1st defendant in his written statement as to what he received on these promissory notes. On the other hand, I am equally far from believing that the plaintiff really advanced the whole of these amounts as he says. It seems to me that where the relation is such as that which existed between the plaintiff and the 1st defendant very little is needed to shift the burden.

(3.) The other evidence is fully dealt with by my learned brother in his written judgment, and it is sufficient for me to say the effect of that evidence is to shift the burden which was on the defendant to show that the full consideration of the promissory notes has not been paid, and that being so, judgment can only be given for the amounts which are admitted to have been received by the 1st defendant. The appeal must, therefore, be allowed and the decree will be modified accordingly with costs throughout. Seshaqiri Aiyar, J.