S.N Singh, J.:— This is a plaintiffs appeal in a suit for recovery of Rs. 3946/- on the basis of a pronote alleged to have been executed on 15th February, 1963.
2. The case of the plaintiff in brief was that defendants Ram Odhar and Muneshwar took a cash loan of Rs. 3001/- from the plaintiff and promised to pay interest at 1% per month and in proof thereof they executed a pronote in dispute in favour of the plaintiff. It was alleged in the plaint that the loan had been taken for legal necessity and benefit of the family as such the entire family was bound to pay the above debt. Since the defendants did not pay the amount due hence this suit.
3. This suit was contested by the defendants on the ground that they had not executed any pronote or receipt in favour of the plaintiff as alleged by him. It was stated in paragraph 9 of the written statement that the plaintiff started the shop at Sikata and on that shop he had kept the defendants and one Kunwar Prasad and his brother for looking after the work of that business, and it had been settled between the plaintiff and the defendants and Kunwar Prasad and his brother that out of the profits of the business plaintiff would take two-thirds and the remaining one-third would go to defendants and Kunwar Prasad and his brother half and half. In short the defendants meant that plaintiff was the financing partner and defendants as well as Kunwar Prasad and his brother were working partners. It was further alleged that it was in connection with that business that plaintiff got two blank papers signed and thumb marked by the defendants by way of security and similarly two documents had been taken from Kunwar Prasad and his brother. The defendants denied the execution of the pronote and receipt for consideration as alleged in the plaint.
4. On the pleadings of the parties relevant issues were framed by the trial court and on a consideration of the pleadings and evidence on the record the trial court accepted the plaintiff's case and decreed the suit as prayed.
5. The defendants preferred an appeal before the lower appellate court and the lower appellate court disbelieved the plaintiff's case and having accepted the defence version dismissed the suit.
6. The plaintiff has come up in appeal to this Court and it has been argued on behalf of the plaintiff appellant that the lower appellate court has erred in law in not raising a presumption under Sec. 118 of the Negotiable Instruments Act as such the finding recorded by the lower appellate court was visiated in law. It was further submitted that there were certain mis-reading in the judgment of the lower appellate court which vitiated the findings. The misreading pointed out by the learned counsel was that even though there was no evidence the lower appellate court has said that the defendants were the plaintiff's servant. Further it was pointed out that the plaintiff had clearly denied to be an agriculturist yet the lower appellate court has wrongly said that the plaintiff was an agriculturist. Again it was pointed out that although the plaintiff had stated that there were 25 members in his family yet the lower appellate court said in its judgment that there were only two persons in the family of the plaintiff, while believing the defence case that plaintiff was running a cloth shop in view of the various purchases made by him which was not possible if it reconsisted of three persons. Learned counsel also pointed out certain omissions which according to him were material omissions which vitiated the findings of fact recorded by the lower appellate court. Those material omissions according to the learned counsel were that although Jaddu one of the defendant's witness had admitted that the cloth purchased by the plaintiff was for domestic purpose, it was not noticed by the learned Judge. It was further contended that the learned Judge had not considered the defendants' admission when they admitted that they were carrying on the cloth business nor was the statement of Kunwar a court witness considered. It was pointed out that the licence of cloth shop stood in the name of the defendant Ram Adhar and Kunwar Prasad. This was also not noticed by the learned Judge and further submission was made that the Judge erred in not drawing adverse inference against the defendants when they had not produced their account books in the case. In support of these submissions the learned counsel relied on the case of Abdul Shakur v. Kotwaleshwar Prasad A.I.R 1958 Alld. 54. wherein it has been held as to in what circumstances a finding of fact can be interfered with. This authority has also dealt with about the presumption which should be raised under Sec. 118(a) of the Negotiable Instruments Act. Reliance was placed on the case of Jagmohan Misir v. Mendhai Dube A.I.R 1932 Alld. 164. wherein it has been held that when the execution of the pronote is admitted there should be a presumption about the consideration and if the court does not raise such presumption it misdirects itself and the order is liable to be set aside in revision.
7. Reliance was also placed on the cases of Ganga Singh v. Santosh Kumar A.I.R 1963 Alld. 194., Jai Narain Tandon v. Ram Kishan Dass 1965 A.L.J 794. and V. Ramachandra Ayyar v. Ramalingam Chettiar A.I.R 1963 S.C 302.. All these cases have laid down the principle of law as to the circumstances when a second appellate court would interfere with the finding of fact of the first appellate court.
8. As against the submissions of the learned counsel for the appellant a short reply was given by the learned counsel for the respondents that in this case the lower appellate court has not accepted the execution of the pronote and receipt by the defendants. The lower appellate court has found as a fact that the plaintiff carried on cloth business and that defendants were working partners as asserted to by the defendants. It was submitted that this was a finding of fact and binding in second appeal. Learned counsel further pointed out that originally when the plaintiff was examined he had stated that he had no son and had only one daughter. It was only when the plaintiff was recalled and again examined that he stated that his family consisted of 25 members. Various exhibits were also shown to show that from 1960 to 1963 cloth worth about Rs. 5,000/- has been purchased by the plaintiff from the shop of firm Bhaddarmal Bhagwandas. The purchases that were shown during 1960 showed a purchase of cloth worth Rs. 2,532/6/9. In 1961 cloth worth Rs. 800/-, again cloth worth Rs. 800/- were purchased in 1962 and cloth worth Rs. 1,000/- in 1963. Learned counsel submitted that the finding of the lower appellate court that plaintiff dealt with the cloth business being one of fact should be accepted in second appeal. Reliance was placed on a decision of the Supreme Court in the case of Kundan Lal Rallaram v. The Custodian, Evacuee Property Bombay. A.I.R 1961 S.C 1316. to show that in a case based on pronote initial burden lay on the plaintiff to prove the execution of the pronote and when this burden is discharged it is then that the court shall raise a presumption in favour of the plaintiff for holding that the pronote was for consideration. According to the learned counsel the initial burden which lay on the plaintiff itself has not been discharged and the lower appellate court rightly held that the plaintiff failed to prove that the defendants appellants executed the disputed pronote and receipt for consideration.
9. I have considered the respective submissions of the learned counsel for the parties. Learned counsel for the parties while supporting their submissions have taken me through all the relevant oral and documentary evidence on the record. Although I am not in agreement with the lower appellate court about some of its observations in the judgment but on the whole after considering the documentary and oral evidence on the record I am satisfied that the conclusion arrived at by the lower appellate court that plaintiff was doing the cloth business was correct. Whether plaintiff was carrying on cloth business or not is a question of fact and the finding arrived at by the lower appellate court is based on evidence and cannot be said to be perverse.
10. I will take up the objections raised by the learned counsel for the appellant against the findings of the learned Judge one by one would see as to whether on account of those criticisms the finding of the lower appellate court could be set aside or not. So far as the complaint that although there was no evidence that defendants were the servants of the plaintiff the lower appellate court has observed that defendants were plaintiff's servants. I find from paragraph 9, that the defendants did allege in their written statement that the defendants were appointed to work at the shop of the plaintiff. The lower appellate court having accepted their case of being working partners has described them as servants. This finding of the learned Judge cannot be said to have affected the finding about cloth business. It is true that the plaintiff stated that he was not an agriculturist and the lower appellate court has wrongly said that he was an agriculturist but this misstatement would also not affect the decision of the lower appellate court. So far as the statement in judgment about the existence of a small family is concerned the plaintiff has made both statements. It was open to the Judge to accept any one of them as such mention of a small family in the judgment cannot be said to be mis-statement.
11. Now coming to the material omissions pointed out by the learned counsel they are not such as in my opinion could be said that the decision of the lower appellate court would have been otherwise. So far as the licence standing in the name of the defendant and Kunwar Prasad is concerned it cannot be said that because the licence was in their name, therefore, the plaintiff could not have done the cloth business. On the contrary to my mind it appears that because of the licence in the name of the two persons stated above the plaintiff in collaboration with those two persons appears to have started the cloth business he being a financing partner and the other being working partners. The case of the defendants was that his relations with Kunwar Prasad were strained and the plaintiff had sided with Kunwar Prasad as such the statement of Kunwar Prasad, could not be relied.
12. Similarly it was the definite case of the defendants that Bahikhatas were with Kunwar Prasad as such he could not be penalised for its non-production. On the other hand the plaintiff who claims to be money lender strangely enough denies to have Bahikhata in respect of his loan transactions.
13. In this case the main question to be decided was whether the case as set up by the defendants that the cloth business was carried on by the plaintiff with defendants as working partners or the business was carried by the defendants and Kunwar Prasad alone as alleged by the plaintiff was the material point for decision and the fate of the case hinged on the decision of this important point. This will be seen that the plaintiff came to court on a clear allegation that the defendants had borrowed Rs. 3,001/- for legal and family necessity. This case of theirs was not substantiated in evidence. In evidence they said that the amount had been borrowed for the purpose of the cloth business. This could not be called as advancement of money for legal and family necessity. Except for the licence being in the name of the defendants and Kunwar Prasad the evidence on the record clearly justifies the inference that plaintiff was doing the cloth business and not the defendants as alleged by the plaintiff in evidence. Independent of the finding given by the lower appellate court on the materials on the record I am also satisfied that the cloth business was carried on by the plaintiff with the defendants as his working partners. With this back ground in mind one has to consider the case of the parties as to whether the pronote in suit came in existence as asserted to by the defendants or as alleged by the plaintiff. The lower appellate court having discussed the evidence has come to the conclusion that the pronote and receipt at the time when the defendants put their signatures and thumb impressions was a blank paper and not a written one also is justified on the evidence on the record. The lower appellate court rightly pointed out that if really the defendants had executed the pronote Ram Adhar who was a literate person he should have been made to write on the pronote the amount which is alleged to have been advanced by the plaintiff. Ram Adhar had only signed his name on the stamp affixed on the paper which according to him was blank. The entire pronote was ascribed by another person and the amount which was alleged to have been advanced was also written in his hand on the samp. The lower appellate court rightly disbelieved the plaintiff's evidence and believed the defence evidence in this respect. The initial burden to prove execution of the pronote lay on the plaintiff as held in the case of Kundan Lal Rallaram v. The Custodian, Evacuee Property Bombay.. The defendants in this present case merely admitted the putting of their signatures and thumb marks on blank sheet of paper. This is not admission of execution, vide Mirza Corganj v. Firm Bhola Mal Nibal Chand A.I.R 1934 Lahore 293. and Pirbhu Dayal…(Plaintiff) v. Tula Ram…(Defendant) . A.I.R 1922 Alld. 401.. In such circumstance it was necessary for the plaintiff to have proved due execution of the pronote and it was only when due execution was established that the presumption under Sec. 118(a) of the Negotiable Instruments Act could be raised. When the initial burden itself on the acceptance of the defence case was not discharged by the plaintiff there was no question of raising the presumption in favour of the plaintiff. The lower appellate court has definitely held that defendants had succeeded in proving that no consideration had been paid to them and their signatures were taken on blank papers. Learned counsel for the appellant has not been able to satisfy me that this finding is wrong. It has further been held that the plaintiff has failed to prove that the defendants executed the disputed pronote and receipt for consideration. This finding also is correct.
14. The decisions relied on by the learned counsel for the appellant do not help him on the finding as well as in view of the evidence on record. On the finding of the lower appellate court that due execution was not proved the cases of Jagmohan Misir v. Mendhai Dube and Abdul Shakur v. Kotwaleshwar Prasad cannot be held applicable. The other authorities cited by the learned counsel dealt with the circumstances when second appellate court could interfere with the findings of fact. In this case on a review of the entire evidence I have also come to the same conclusion as the first appellate court that such no question of interference by the second appellate court arises.
15. For the reasons discussed above this appeal lacks force and is hereby dismissed with costs.
Appeal dismissed.