1. This appeal arises out of a suit brought by Ghure Mal, the plaintiff-respondent, for the recovery of Rs. 565-13-4 on the basis of a hundi dated August 23rd, 1910. It was alleged in the plaint that one Kanhaiya Lal had drawn the hundi in suit on a Bombay firm in favour of Kishen Ballabh and his son Baldeo for Rs. 500, who had sold it to the plaintiff for the same amount. Tim plaintiff presented the said hundi to the Bombay firm and it was dishonoured. Subsequent to the dishonour of the hundi by the Bombay firm the plaintiff called upon Kishen Ballabh and Baldeo to discharge it, who made promises from time to time but failed to pay the money; due on it. Hence the plaintiff sued both father and son for the recovery of Rs. 500 principal and Rs. 65-15-4 interest at six per cent per annum. The claim was decreed ex parte, on April 16th 1913, against Kishen Ballabh but was dismissed against Baldeo. On May 3rd, 1913, Kishen Ballabh applied to have the ex, parte, decree against him set aside and Ins application was allowed on May 24th, 1913. He denied the claim and pleaded that Kanhaiya Lal had not drawn the hundi in suit in his favour and that he, Kishen Ballabh, had not endorsed the hundi to the plaintiff and had received no consideration on it.
2. The learned Munsif of Mahaban, in whose Court the suit was filed, yielded to the pleas in defence. He hold that it had not been proved that Kanhaiya Lal had drawn the hundi in suit or that Kishen Ballabh had endorsed it to the plaintiff, or had received any consideration on it. The claim was accordingly dismissed. The plaintiff preferred an appeal which was disposed of by the learned Subordinate Judge of Muttra. The fatter disagreed with the first Court as to the sale of the hundi in suit to the plaintiff by Kishen Ballabh. He held that the evidence before him proved the sale of the hundi. He agreed with the first Court that the plaintiff had failed to prove the passing of full consideration, but in his opinion some consideration did pass on it, probably Rs. 125, but could not say for certain how much. However, as under the Negotiable Instruments Act it must be presumed that the hundi in suit was transferred for consideration and no rebutting evidence was given by Kishen Ballabh as to the failure of part of the consideration, the claim of the plaintiff must prevail. The learned Subordinate Judge accordingly accepted the appeal and decreed the claim, Kishen Ballabh in his appeal to this Court challenges the decree against him on three grounds. He says that it has not been proved that Kanhaiya Lal drew the hundi in suit or that the appellant sold it to the plaintiff. Under the circumstances of the present case, as found by the lower Appellate Court, no presumption arises in favour of the passing of consideration. Moreover it was not necessary for the appellant to give evidence in rebuttal on the question of consideration, as the plaintiff had himself led the evidence on the point and it was disbelieved. In support of the first objection it is said that the finding of the lower Appellate Court is that Kanhaiya Lal is a wealthy spendthrift in whose service the appellant has enriched himself with the help of the plaintiff, who holds many hundis from Kanhaiya Lal. The hundi in suit was possibly fabricated by the plaintiff to cheat Kanhaiya Lal. And if the appellant was perhaps a party to the fraud in endorsing it to the plaintiff, no decree should be awarded on such a hnndi. The appellant did not state in his defence that he and the plaintiff had fabricated the hundi in suit to cheat Kanhaiya Lal. The suggestion thrown out in the argument now cannot be accepted. It is true that he did not admit that the hundi in suit was drawn by Kanhaiya Lal, but he gave no evidence in support of it. If he himself fabricated the hundi. without the knowledge of the plaintiff and sold it to the latter, he, the appellant, is liable under it, lie, however, denies the sale of the hundi to the plaintiff and contends that there is no legal proof in support of the alleged sale. The plaintiff went into the witness-box and swore that the hundi in suit had been sold to him by the appellant. He produced two witnesses who gave evidence to the same effect. A letter was also produced purporting to he written by Baldeo, the son of the appellant, asking Kanhaiya Lal to pay the hundi in suit. The learned Munsif disbelieved the plaintiff and his witnesses and while admitting the genuineness of the latter, explained it by saying that the plaintiff had procured it 'on some pretence.' The learned Subordinate Judge, however, accepted the evidence for the plaintiff in view of the letter of Baldeo and the resemblance of the admitted signatures of the appellant to his signature on the endorsement on the hundi, I think that the learned Subordinate Judge acted on legal evidence and his finding, being one of fact based on evidence, cannot be questioned.
3. The third objection for the appellant in my opinion must prevail. If no evidence had been given by the plaintiff, the presumption that arises in favour of a negotiable instrument with regard to the passing of consideration would have held good. But plaintiff chose to open the case and lead evidence as to the passing of consideration. Both the Courts have disbelieved that evidence. The learned Subordinate Judge holds that some consideration must have passed, because in the or parte trial one of the witnesses for the plaintiff said that Rs. 125 had been paid to Kanhaiya I ml. In the present case the evidence of that witness cannot be taken into consideration and an inference drawn that some consideration passed on the hundi, in suit to the appellant. Besides the assumption that some consideration passed on the hundi in suit to the appellant would not warrant a decree for the full amount. As the amount paid to the appellant, if any, has not been proved the claim of the plaintiff must fail, I allow the appeal, set aside the decree of the lower Appellate Court and restore that of the first Court. Costs are allowed lo the appellant against the plaintiff-respondent.