M.P. Saxena, J.
1. This is a plaintiff's second appeal against the judgmentand decree dated 27th April, 1966. passed by the learned District Judge, Meerut, dismissing his suit for the recovery of RS. 1500/-.
2. The plaintiff-appeallant had filed a suit for the recovery of Rs. 1,500/-on the basis of a pronote and a receipt dated 11-6-1962 for Rs. 1,000/- alleged to have been executed by the defendants and carrying an interest at the rate of one and a half per cent per mensem. Nothing was said to have been paid towards this loan.
3. The defendant No. 1 alone contested the suit, inter alia, on the grounds that the defendants neither borrowed any amount nor executed the pronote and the receipt in suit; that the plaintiff had to get a joint wall of the parties re-constructed and the defendants were to bear half costs. In that connection the plaintiff obtained their thumb impressions on blank papers. It was alleged that they had paid Rs. 230/- to the plaintiff as their contribution towards the cost of the construction of the wall.
4. The learned trial court held that the pronote and the receipt were executed by the defendants for consideration of Rs. 1,000/- and that nothing was paid towards it. He, therefore, decreed the suit for the recovery of Rs. 1000/- with pendente lite and future interest at the rate of Rs. 6/- per cent. The decretal amount was, however, allowed to be paid by six monthly instalments of Rs. 300/-each.
5. The defendants filed an appeal reiterating the pleas taken in the written statement. The learned District Judge, Meerut, held that the plaintiff had failed to prove execution of the pronote and the receipt as well as its consideration Therefore, the appeal was allowed and the suit was dismissed with costs of both the courts.
6. The plaintiff has now come up in second appeal and the main point pressed before this Court is that the execution of the pronote and the receipt was not only proved by him but was also admitted by the defendant No. 1 and under Section 118 of the Negotiable Instruments Act the learned first appellate court should have raised a presumption in favour of consideration and it was wrong in placing the burden on the appellant to prove consideration when it should have been done by the defendants.
7. The point has been argued at great length from both sides. I have given my anxious consideration to the whole matter and have no hesitation to say that in a case based on pronote the initial burden lies on the plaintiff to prove 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 and it will be for the defendants to rebut that presumption. The same principle was laid down in the case of Kundan Lal Ralla Ram v. Custodian Evacuee Property, Bombay, (AIR 1961 SC 1316). Before proceeding further it may be considered as to what the word 'execution'' signifies. In Shaikh Ebadut Ali v. Muhammad Fareed, 35 Ind Cas 56 = (AIR 1916 Pat 206) it was held that the word 'execution' consists in signing a document written out, read over and understood and does not consist of merely signing a blank paper. The same view was taken in the cases of Mirza Gorganj v. Bhola Mal Nibalchand, (AIR 1934 Lah 293 (2)) and Pirbhu Dayal v. Tula Ram, (AIR 1922 All 401 (2)). Therefore, the first question which arises for consideration is whether the execution of the pronote was proved by the plaintiff or admitted by the defendants. The plaintiff examined himself and one Pheru, the marginal witness of the pronote. Both of them contradicted each other on material points to the extent that the learned first appellate court was justified in rejecting their evidence. According to the plaintiff, the said advance was made by him in his Kothri which is north facing. He immediately resiled from this statement and gave out that the money was advanced at the house of Mithan Lal the scribe of the pronote and the receipt. According to him, Ratna and Pheru were present at that place and the pronote was scribed by Mithan Lal at his house. He had also stated that the necessary stamp and form for executing the pronote and the receipt were brought by Mithan Lal. Pheru on the other hand gave out that the advance was made at the house of the plaintiff and the pronote and the receipt were also executed at that place. According to him, these documents were scribed by one Pirthvi and not by Mithan Lal asstated by the plaintiff. He also gave out that the stamp and the forms were brought by Harphool. Obviously these contradictions should not have been there if the pronote and the receipt were actually written out in the presence of the defendants and their thumb marks were obtained thereafter. It may further be stated that neither Mithan Lal the alleged scribe of the documents nor Ratna was produced in this case. In this manner the learned first appellate court was perfectly justified in holding that the plaintiff had failed to prove execution of the pro-note and the receipt. The conclusion is based on sound reasonings aS held in the case of V. Ram Chandra Ayyar v. Rama Lingam Chettiar : 3SCR604 . Section 100(1)(c). Civil Procedure Code does not refer to error or defect in the appreciation of evidence adduced by parties on merits. Even if the appreciation of evidence made by the lower appellate court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect and the High Court cannot interfere with the conclusions recorded by the lower appellate court. In the instant case the conclusions cannot be characterised as erroneous or wrong and cannot be disturbed.
8. Another question which arises for consideration is whether the defendants had admitted execution of the pro-note and the receipt. In their written statement they categorically denied that they had borrowed any amount from the plaintiff or executed any pronote or receipt in his favour. According to them, the plaintiff had obtained their thumb marks on blank paper in connection with the contribution of costs towards construction of a joint wall. Therefore, there is no scope for argument that the defendants had admitted execution of the pro-note and the receipt in their written statement.
9. Under Order X, Rule 2, Civil Procedure Code the defendant No. 1 had made it clear that their thumb marks were taken on blank papers and the pro-note and the receipt were not written in their presence. Even this statement does not amount to admission of the execution.
10. On the back of the pronote and the receipt the learned counsel for the defendants had simply endorsed 'only thumb impressions admitted the rest denied'. It makes it clear that the defendants admitted only thumb marks on these documents and not that they had thumb marked after the documents were written out and the burden remained on the plaintiff to prove this fact. Reference may be made to the case of Thakur Lal v. Ram Adhar, (1968 All LJ 4801 in which it was held that mere admission of putting signatures and thumb marks on a blank sheet of paper does not amount to an admission of execution. In such circumstances it is necessary for the plaintiff to prove due execution of the pronote and it is only when due execution is established that a presumption under Section 118(a) of the Negotiable Instruments Act can be raised. When the initial burden is not discharged by the plaintiff, there is no question of raising presumption in favour of the plaintiff.
11. Lastly, learned counsel for the appellant has placed considerable reliance on the statement of Harphool defendant wherein he had stated 'Hamse rukka Likhwaya tha'. It is vehemently argued that this statement points to the conclusion that the pronote was written. I am reluctant to draw this inference because literally this statement means that the pronote was scribed or written by the defendants when the plaintiffs' own admission is that it was not written by them. Obviously these documents do not purport to have been written by the defendants nor it could be done as they are illiterate and had affixed their thumb marks. This statement will, therefore, be construed to mean that they had thumb marked the pronote and the receipt as alleged in the written statement. In this view of the matter execution of the pro-note and the receipt was neither proved nor admitted and no presumption in favour of consideration could be raised nor the burden shifted on the defendants to prove want of consideration. It may further be said that on account of the infirmities in the evidence discussed above, the pronote cannot be held to be for consideration.
12. For all these reasons the learned first appellate court was right in dismissing the suit and the appeal is hereby dismissed with costs to the defendant-respondents.