1. The suit was brought by the respondent, as plaintiff, in the Court of the First Class Subordinate Judge at Belgaum, to recover from the defendant a certain sum with interest on the strength of a promissory note, alleged to have been executed on the 29th of March 1904, at Chikodi. The defendant pleaded in answer to the claim that in the first place he was an agriculturist; that though he had executed the note in suit, yet the consideration stated in it was not true, but that the note had been passed nominally, merely with a view to induce the plaintiff to stand security to Government for the performance by the defendant of certain contracts which he had undertaken.

2. The Subordinate Judge found that the defendant was an agriculturist and that the plaintiff's case as to the consideration was true. So a decree was passed in the plaintiff's favour. The defendant appeals.

3. It is urged before us that the onus of proof lay on the plaintiff in spite of the admission by the defendant of the execution of the note, because the case was one which had to be tried, and was tried, under the Dekkhan Agriculturists' Relief Act. Now, in one sense no doubt that is true. But it is for the Court to say whether it ought to take the admission in the note as to the consideration, as correct, and call upon the other side to rebut the presumption. The lower Court here has deemed it proper to take into consideration all the circumstances of the case. As to the question of onus of proof, any argument founded upon it would have greater force in an original trial, where the question is which party is to begin. But where the trial has ended, and where the plaintiff has led evidence on his own behalf, and undertaken the burden on his own shoulders in the first instance, the contention that the onus of proof was wrongly thrown loses all its force in an appeal, because an appellate Court has to see whether, having regard to the evidence adduced by both parties, the lower Court's conclusion is shown to its satisfaction by the appellant to be erroneous or not. I point out that because it is often forgotten that the duty of an appellate Court is different from the duty which is imposed on a Court of original trial. In an appeal the appellate Court should not reverse the decree unless it is clearly shown to be erroneous. That is a long standing rule of practice, both here and in the English Courts. The question of onus becomes important and material in appeal only where the evidence is evenly balanced and conflicting; where that is the case, that party must fail, on whom the onus lay in the first instance.

4. In the present case we must approach the question from this point of view: Whether the Subordinate Judge has been shown to our satisfaction to have committed an error in arriving at his finding of fact, on his appreciation of the evidence, that the plaintiff's case is true and that the defendant's case is false as to the consideration of the promissory note. Now, in deciding that question, at the outset regard must be had to one or two undisputed facts in the case. Although the defendant is found to be an agriculturist, yet he cannot be said to be an ignorant man. As the Subordinate Judge has pointed out in his judgment, both the plaintiff and the defendant are money lenders The defendant for some time has been taking contracts from Government, and I think that a fair presumption may be made from that circumstance that he is a shrewd man and knows what he is about, and would not enter into dealings without careful consideration. The Subordinate Judge remarks that both parties were equally matched in point of intelligence and shrewdness. As regards the transaction of the promissory note in dispute, the defendant has admitted in his deposition that he had previous dealings with the plaintiff. It is true that he has qualified that admission by the statement that those dealings have been settled, and that he owes no money whatever to the plaintiff. But that there had been dealings at one time is an admitted fact. Whether they were settled is the very question which is now in dispute. The plaintiff says it was settled by the promissory note in dispute.

5. The plaintiff's case is that these dealings had lasted for several years; that there were accounts between the parties, and that on the date of the promissory note the accounts were made up and adjusted with the result that the defendant promised to pay a lump sum of Rs. 15,000 to the plaintiff by way of settlement. That is the consideration alleged by the plaintiff, and stated in the promissory note.

6. But the defendant, on the other hand, alleges that the promissory note was executed, not for any payment, not on account of any balance due on the previous transactions between the parties, but that it was executed nominally in consideration of the fact that the plaintiff had agreed to stand security for the defendant to Government in the performance of his contracts. This plea amounts to this: that the promissory note was a bogus transaction ; that there was really no consideration for it that it was simply a sort of inducement, but no money was to pass. But this story, at the very outset, seems improbable. The plaintiff by becoming surety had undertaken the liability to pay to Government whatever the defendant might fail or be liable to pay by way of compensation for non-performance of his contracts. That liability, according to the evidence, was estimated to come up to Rs. 21,000 at the date of the note; both parties must be presumed to have known that. Further, the plaintiff on payment to Government would have stood in the shoes of Government with reference to their rights against the defendant as their contractor. That was the plaintiff's position when he became surety. What did he gain, by this promissory note, if the defendant's case is true that it was passed merely as an inducement to the plaintiff to become surety and it was not the intention of either party that any money should be paid by the defendant to the plaintiff as promised in the note ?

7. But it is said that it is highly improbable that the plaintiff would have agreed to take Rs. 15,000 as a result of the settlement of the accounts, because when these accounts are examined we find that he has remitted Rs. 6,000 which was owing to him as interest, and Rs. 4,000 which was owing to him as principal. And the question is asked, why should the plaintiff have been so very generous towards the defendant?

8. That question is satisfactorily answered by the Subordinate judge in his judgment, and we have not heard any cogent arguments meeting the Subordinate Judge's observations on that head. The Subordinate Judge points out that the reason why there was this remission was that the plaintiff had found it difficult to get back his debts from the defendant. Several items had become time-barred. And when he was asked to stand security, then he saw his opportunity and prevailed upon the defendant to execute a document in respect at least of a portion of the debts, before he could agree to stand security for him. I have no doubt that there was some inducement, and that the defendant's plea states what is partially true. But he has only taken hold of one portion of what occurred at the execution of the document, and has given the go-by to the rest of the circumstances which led to the promissory note.

9. Upon the evidence and probabilities the truth appears to me to be this: the defendant wanted the plaintiff to stand security for him. The plaintiff declined unless the defendant satisfied the debts due on the previous accounts. But a portion of the debts had become barred. There was a difference between the parties. The defendant, however, wanted the plaintiff's assistance in the matter of the surety ship, and therefore both settled the differences, the plaintiff agreeing to stand security and the defendant agreeing to execute the promissory note in satisfaction of the debts due on the previous transactions and accounts.

10. Mr. Belvi has also argued that the defendant's case must be true, and that the plaintiff's case must not be believed, because the evidence shows that the plaintiff possessed account books and that he has suppressed them, and we are asked to draw a presumption from that circumstance, adverse to the plaintiff's case. There is evidence which tends to show that it is highly probable that the plaintiff has account books. The plaintiff is a hereditary Savkar; he deals in lakhs of rupees; he pays a fairly large amount as income-tax; he keeps two Karkuns. All this is admitted and makes it quite probable that he has accounts, because business such as his cannot go on without accounts.

11. But there are Exhibits 83, 84 and 85, and the signatures on them, which purport to be those of the defendant, compared with his admittedly genuine signatures, are proved in my opinion to be his. And I do not see any reason whatever why the witnesses Exhibits 78, 79 and 80 who have been examined for the plaintiff, and who speak to the circumstances under which the promissory note was executed, should be disbelieved. The Subordinate Judge who saw and heard them has practically relied upon them. Their cross-examination has not been of such a character as to shake materially the weight to be attached to their statements in examination-in-chief. No doubt, they say that no accounts were examined in their presence, neither was any inspection taken of the Yadi or any Chopdi. But if what I have already said be the correct view to take of what must have occurred before the execution of the promissory note, what the witnesses have said appears reliable.

12. When the plaintiff was asked to stand security for the defendant, the defendant was in need of the plaintiff's assistance, and the plaintiff wanted his previous debts to be paid. It is only natural that no accounts would be examined, but both parties would take it for granted that each knew what the result of the accounts would be, that a rough sum would be arrived at, for the purpose of settling the differences. It cannot be said that the statement in the promissory note, that the accounts had been examined, is false, if the parties proceeded upon the understanding that the compromise, which they had arrived at, was the result of a settlement, in the nature of give and take. The fact that the promissory note was executed at Chikodi, where the plaintiff had to go to stand security, confirms the view which I have taken, because that strengthens the conclusion, I have already expressed, that the plaintiff must have asked the defendant to execute a promissory note and satisfy his old debts, before he could undertake the contract of surety ship on his behalf. On this ground, therefore, in my opinion, the Subordinate Judge's finding as to the consideration must be upheld.

13. I ought to point out, however, that the Subordinate Judge did not exercise proper discretion in summoning Mr. Manerikar, as an expert witness for the purpose of comparison of handwriting in respect of Exhibits 83, 84 and 85. Neither party had called him. And the Subordinate Judge could have formed his own conclusion as to the handwriting instead of calling a witness, who himself admits that he is not an expert at all. And what is still more irregular is that, that witness was called nearly four months after the last, witness before him had been examined.

14. Other points have been raised by Mr. Belvi in the course of his arguments. It is said that the suit at the instance of the plaintiff alone could not lie, on this promissory note, because the plaintiff himself admits that he is but a member of a joint family ; that there are other co-parceners interested in the promissory note ; and that he merely acted as manager on their behalf. But that argument is answered by Gurushantappa v. Chanmallappa(1). The law is that where credit is given to an individual member in a Hindu family, by an outsider, in respect of a contract, whether it be of money-lending, or of letting, the contract is one on which that member alone is entitled to sue. The principle of the decision in Gurushantappa v. Chanmallappa (1899) I.L.R. 24 Bom. 123 has been followed as regards leases executed in favour of a single co-parcener in a joint Hindu family. There is a ruling to that effect in Sayad Fatulla valad Sayad Kamlodin v. Bola bin Shivaya Gavda (1884) P.J. 33 where it was held that

"he who passes a Kabulayat to one of two or more who have a common interest cannot free himself from his liability by payment to another unless that other is the agent of the one with whom he has contracted. The defendant having attorned to the nephew exclusively and had enjoyment undisturbed by the nephew in consequence, must pay him."

That principle has been followed in a series of cases, which will be found in our Printed Judgments and also in the Law Reports.

15. Then the next point urged was as regards the conciliator's certificate, that the certificate was not Produced in time, and that, therefore, the suit is barred. But the production of the conciliator's certificate is not a condition precedent to the maintenance of the suit. All that the law requires is that the suit should not be heard. It is not that the Court has no jurisdiction to allow the suit to lie, but the Court has no jurisdiction to hear the suit. Therefore, if the Court finds at the trial that the certificate is not produced or is defective, it ought to postpone the hearing, and allow the party an opportunity of producing the conciliator's certificate. The leading authority for that is Jijaji Pratapji Raje v. Balkrishna Mahadeo (1892) I.L.R. 17 Bom. 469.

16. On the question of interest, having regard to the facts that the promissory note is silent as to interest, that the principal amount was arrived at as the result of a settlement of accounts between the parties, and that the plaintiff was anxious to get back his debts from the defendant, and the defendant was anxious to get assistance of the plaintiff as surety, the intention of the parties must be presumed to have been that the amount of the promissory note should not bear any interest, until demand. In the present case there is no evidence a all of any demand having been made. Therefore the Subordinate Judge's decree must be amended, so far as the award of interest goes, and interest must be awarded only from the date of the suit. The decree must be amended in that respect but confirmed in other respects.

17. The appellant who has substantially failed must pay the costs of the respondent in this appeal.

Heaton, J.

18. On the question of limitation and on the question as to whether the plaintiff alone could bring this suit I am content to rest on the authorities which have been referred to by my learned colleague. As to interest: I infer from the terms of the promissory note that it was not the intention of the parties that interest should be made payable until after demand. No demand has been proved, and therefore the interest, in my opinion, can only be made payable from the date pf the suit.

19. On the question of fact I agree with the Court below. I do not attach much weight to the oral evidence on behalf of the plaintiff. To my mind it is entirely unconvincing, and I do not think that the Subordinate Judge really placed any reliance on it. Nor does the defendant's theory of the promissory note being given by way of an indemnity strike me as in any way inherently incredible. My agreement with the findings of the Court below is based upon what seem to me to be the broad facts of the case. They are these:--

20. There is no doubt that the promissory note was passed by the defendant. That the promissory note in express terms declares that it is executed for the balance of old debt. Now, that is an admission made by the defendant in his own handwriting. He is a man of business experience, of education and of intelligence. He bears no resemblance to those illiterate, ignorant and helpless debtors, who are entirely in the hands of their creditors-that class for whose special benefit the Dekkhan Agriculturists' Relief Act was passed. When I find a defendant of the description of the defendant in this suit, deliberately writing in his own hand, in a document which he signs, that the document is for the balance of past debt, then it seems to me that the defendant is under an obligation to produce very satisfactory and very convincing evidence, if he is to induce a Court to hold, for his own advantage, that the statement made in the promissory note was absolutely untrue, and that the real facts of the case are something entirely different. That, however, is the task which the defendant has set before himself. To put t briefly: the whole fabric of his defence rests upon the theory that certain documents are forgeries. I need say no more than this: that neither in their nature, nor in their contents, nor in their handwriting do these documents appear to me to have any resemblance to forged documents. And having said that, I say that the entire strength of the defendant's case crumbles away and therefore I am compelled to allow that the plaintiff's case is good. I do this, although I am very far from believing the plaintiff's statement that he does not keep accounts, and although I feel perfectly sure, in my own mind, that we have had neither from the one side, nor from the other, the whole truth about the transaction. Nevertheless, there is the promissory note ; that promissory note is proved and the defendant has absolutely and completely failed to show that there is any good ground for supposing that the recital in the promissory note is false. That is enough, I think, to justify the decision of the Court below.