1. This appeal arises out of a suit for money, instituted by the indorsee of a promissory note (Ex. A) dated 8th August, 1925, for Rs. 5,000 executed in favour of the 4th defendant by one A.Venkatarayudu deceased (hereinafter referred to as A.V.). The endorsement purports to have been made on 2nd July, 1926, in consideration of the plaintiff undertaking to pay off the debt due by the 4th defendant to one G. Venkatarayudu (hereinafter referred to as G.V.) under Ex. B, a pronote dated 2nd August, 1924, for Rs. 4,000. It is common ground that after the suit note was endorsed to the plaintiff, a notice was sent through D.W. 4, a vakil of Guntur, demanding payment of the money, and that A.V. sent a reply stating that the pronote was devoid of consideration. The reply notice is not now forthcoming and it is therefore not possible to say nor is D.W. 4 able to remember what more was stated in it as to the circumstances under which and the purpose for which the note was executed. Notwithstanding this reply which repudiated liability, this suit was instituted only on the last day of the period of limitation, and more than a year and a half after A.V.'s death.
2. The appellants, who were defendants 2 and 3 in the lower Court, are the two undivided minor sons of A.V.; the 1st defendant is his undivided younger brother. In the written statements, the defendants set out in some detail the circumstances which according to their information and belief led to the execution of the suit note. Briefly stated, the story was to the effect that in certain domestic disputes between A.V. and G.V. who were brothers-in-law, the 4th defendant a common friend and relation was requested to intercede with a view to persuade G.V. to take back his wife (the sister of A.V.) whom he had sent away or threatened to send away to A.V.'s house and that by way of assuring A.V. that both parties will act according to his advice in the matter, A.V. executed the suit note in favour of the fourth defendant, and a brother of G.V. (on G.V.'s part) executed a similar pronote for Rs. 5,000 in favour of the fourth defendant. The written statement filed by the first defendant was fuller in particulars than that filed on behalf of the defendants 2 and 3 by their mother. In answer to the plaintiff's allegation that he was a holder in due course, it was stated that he had paid no consideration for the transfer and that he was not the real transferee but only acting on behalf of G.V., who on account of quarrels with the defendants' family was trying to harass them by taking a transfer of this note which he knew was not supported by consideration.
3. It is not denied that before the institution of this suit, the relations between G.V. and the defendants had become very strained and had led to civil and criminal proceedings. It is also admitted by some of the witnesses examined on the plaintiff's side that G.V. had put away his wife (the sister of A.V.) and married another wife, but they would have it that this happened only after A.V.'s death and in consequence of the disputes between G.V. and the first defendant and had nothing to do with the execution of Ex. A by A.V.
4. Among the issues framed on 13th February, 1929, the first issue raised the question whether the suit note was executed by A.V. and was supported by consideration. The first defendant had filed his written statement on 2nd February, 1929, and on 8th April, 1929, the plaintiff's pleader endorsed on the plaint that the claim against the first defendant was given up. In explanation of this step it was stated that the first defendant was in jail in consequence of a conviction in a Sessions Case and that to avoid delay he was given up. The step that followed makes one suspicious as to the true reason for adopting this course. The later conduct of the litigation shows that the plaintiff was not prepared to examine either G.V. or the fourth defendant as a witness in the case. The issue as originally framed cast on the plaintiff the onus of proving execution as well as consideration; and, that would have necessitated plaintiff leading evidence in the first instance. On 16th April, 1929, a petition was filed on the plaintiff's side laying stress on the fact that the first defendant had been given up and praying that as the written statements of defendants 2 and 3 practically admitted the genuineness of the note and raised in substance a plea of absence of consideration, the 1st issue should be recast so as to throw the onus of proof on the defendants. The Court acceded to this suggestion and, overruling the objection of the appellants to such a course, recast the issue in its present form.
5. At the trial, two out of the three attestors to the suit note were examined as D.Ws. 1 and 2 and they supported the defendants' version as to the origin and purpose of the note. The remaining attestor, a brother of G.V., was examined as P.W. 4; and he deposed that the suit note was executed in the kottu or business place of the fourth defendant who paid the consideration in cash to A.V. Evidence to the same effect was given by P.W. 1, a brother of the fourth defendant (the promisee). The plaintiff, as P.W. 3, spoke to the transfer in his favour being supported by consideration and stated that he had executed a paddu (or memo.) to G.V. undertaking to discharge fourth defendant's debt to G.V. under Ex. B.
6. The learned Subordinate Judge expressed himself unable to accept the defendants' story as to the object of the execution of the suit pronote and held that it was supported by consideration. He also held that the plaintiff was a holder in due course and accordingly gave him a decree against the family properties in the hands of defendants 2 and 3. Hence this appeal by defendants 2 and 3. Plaintiff was also given a decree against the fourth defendant (as endorser) who appears to have submitted to the decree.
7. It will be convenient to deal at the outset with the question of the frame of the issue and the onus of proof, which was argued before us at some length. Section 118, Clause (a) of the Negotiable Instruments Act provides that every negotiable instrument shall be presumed to have been made and endorsed for consideration; and according to Clause (g), the holder of a negotiable instrument shall be presumed to be a holder in due course. Though this section is not, like Sections 119 to 122, limited in terms to a 'suit upon the instrument', it seems only reasonable to hold that the 'special rules of evidence' laid down in Section 118 must have been intended to apply only as between the parties to the instrument or those claiming under them. In other cases, the presumption can only be in the terms enacted in Section 114 of the Evidence Act (vide 111. c) which by the use of the expression 'may presume' leaves it to the Court to apply the presumption or not according to circumstances. When a suit like the present is instituted against the undivided sons of a Hindu promisor governed by the Mitakshara law, the suit cannot be regarded as one against the heirs or representatives of the promisor, because it only seeks to enforce the Hindu law theory of pious obligation, in respect of property which the sons have taken by survivorship. The pious obligation can arise only on the assumption of the existence of a debt due by the father; and, this way of stating the position would prima facie throw on the creditor the onus of proving the existence of a debt.
8. The inappropriateness of applying even as against the undivided sons of the executant the provisions of the Negotiable Instruments Act can be shown by one or two illustrations. The sons can always avoid liability by proving the illegality or immorality of the debt; but no such defence is contemplated or permitted by the Negotiable Instruments Act. Again, take a suit by the endorsee of a promissory note executed by the father; it being presumed or proved that he is a holder in due course, the endorsee may be entitled to a decree against the executant (father) even after proof that as between the original parties to the note, there was no consideration at all. But in such a case when the absence of consideration has been proved, it will be preposterous to postulate the existence of a ' debt' and impose on the sons a pious obligation in respect thereof. If, as observed in Krishnanand Nath Khare v. Raja Ram Singh I.L.R. (1922) 44 All. 393 one has to reconcile oneself to the difficulty of applying the legislative provisions of Western Law to the ancient customs and traditions of the law of the joint Hindu family', one need not add to this difficulty by an unreasonable extension of the provisions of the Negotiable Instruments Act. With reference to the possibility of regarding the ' family ' itself as the ' maker' of a promissory note executed by the father or manager, see observations of Page, J., in Ramgopal Ghose v. Dhirendra Nath Sen I.L.R. (1927) 54 Cal. 380.
9. It must now be taken as established by the decision of the Judicial Committee in Sadasuk Janki Das v. Sir Kishan Pershad (1918) 36 M.L.J. 429 : L.R. 46 IndAp 33 : I.L.R. 46 Cal. 663 (P.C.) that none can be held liable on a negotiable instrument unless his liability appears on the instrument itself, in a manner recognised by law. An heir or legal representative will of course be liable if his ancestor or predecessor was liable on the instrument. Any other person can be made liable only upon the consideration and not on the note. If a decree had been obtained against the father, his undivided sons may perhaps become liable to discharge the decree debt Periasami Mudaliar v. Seetharama Chettiar (1903) 14 M.L.J. 84 : I.L.R. 27 Mad. 243 apart from any proof of the debt independently of the decree; and it might perhaps make no difference in such a case that the decree against the father was based on the presumption laid down in Section 118 of the Negotiable Instruments Act. Likewise, a decree thus obtained against the father may by the operation of Section 53, Civil Procedure Code of 1908, become executable against the interests of the sons in the family property, leaving it open to them to escape liability only on proof of illegality or immorality without entitling them to call upon the creditor to establish the existence of a 'debt' apart from the decree. No such special considerations apply to a case where, as in the present, no decree has been obtained against the father and the suit is brought after his death against his undivided sons. In this class of cases, it seems to me right to hold that the onus of proving the existence of a debt must prima facie be laid upon the creditor who can of course call in aid the presumption permissible under the general law of evidence, namely, Section 114 of the Evidence Act.
10. On behalf of the plaintiff-respondent, Mr. Raghava Row relied on the decision in Nachiappa Chetty v. Dakshinamurthy Servai (1915) 17 M.L.T. 232 : 28 I.C. 345 as supporting his contention that in a suit on the father's note, the burden of proof is not different in respect of the claim against the sons from that applicable to the claim against the father. On the facts it may be pointed out that in that case the suit had been instituted during the father's lifetime. This is what made it possible for the learned Judges to say that the sons had been added only to give them an opportunity of proving, if they can, that the debt was incurred for illegal or immoral purposes. Similar language cannot be appropriately used where the suit is instituted after the father's death and the sons are the only defendants. If the learned Judges intended to lay down the rule in broad terms, so as even to cover a case like the present, I am, with all respect to them, unable to concur in that view. Their conclusion is mainly based on the decision in Krishna Aiyar v. Krishnaswami Aiyar I.L.R. (1900) 23 Mad. 597, but as we read the judgments of Shephard and Subramania Ayyar, JJ., in the last mentioned case, their reasoning far from leading to such a conclusion seems to us to suggest the contrary result.
11. The actual decision in Krishna Aiyar v. Krishnaswami Aiyar I.L.R. (1900) 23 Mad. 597 related to the propriety of joining in the same action a claim for a personal decree against the executant of a promissory note and a claim to recover the debt from the shares of his coparceners in the joint property of the family. While holding such joinder to be permissible, both Shephard and Subramania Ayyar, JJ., clearly recognise that the liability of the executant is on the note while the liability of the other coparceners is on the debt and is an obligation arising under the Hindu Law see also Seshayya v. Sanjivarayudu (1933) 67 M.L.J. 393 and Ramasami Nadan v. Ulaganatha Goundan (1898) 8 M.L.J. 312 : I.L.R. 22 Mad. 49. I am unable to agree that in such cases the cause of action as against the two sets of defendants can be said to be the same in the sense that evidence sufficient to establish the liability of the executant would necessarily and always suffice to establish the liability of the other set of defendants. In the Full Bench judgment in Mallesam Naidu v. Jugala Panda (1899) 10 M.L.J. 34 : I.L.R. 23 Mad. 292 there is no doubt language employed which may seem to support the contention that the cause of action is the same as against both father and son. But the question then under discussion was whether a separate cause of action accrued as against the sons after the father's death or the cause of action against both accrued once for all during the father's lifetime.
12. Mr. Raghava Row contended that so far as the creditor was concerned, the same evidence would suffice to establish the liability both of the father and of the sons and the only difference between them was that by way of defence the sons can plead the illegal or immoral character of the debt. He also laid emphasis on the circumstances that the extinction of the father's liability or its unenforceability on the ground of limitation will equally avail the sons as a defence. But this contention ignores the fact that for purposes of joinder as also the continued subsistence of the liability, the decision in Krishna Aiyar v. Krishnaswamy Aiyar I.L.R. (1900) 23 Mad. 597 draws no distinction between the claim against the sons and the claim against the other coparceners of the executant; nevertheless there can be no doubt that in respect of the claim against the coparceners who are not sons, there lies on the plaintiff creditor himself, the further burden of proving that the suit debt was incurred for family purposes, cf. Abdul Majid Khan v. Saraswati Bai (1933) 66 M.L.J. 65 : L.R. 61 IndAp 90 (P.C.). In this view, the decision in Krishna Aiyar v. Krishnaswamy Aiyar I.L.R. (1900) 23 Mad. 597 even if it can be read as laying down that the cause of action as against the non-executants is the same as that against the executant of the note, will not support the conclusion that as against all the defendants joined in a suit of the kind there contemplated the onus of proof resting on the plaintiff will be the same.
13. Reliance was placed by Mr. Raghava Rao on Ayyaswami Pillai v. Guruswami Naicken (1916) 3 L.W. 463, Nataraja Naicken v. Ayyaswami Pillai (1916) 32 M.L.J. 354 and Thankammal v. Kunhamma (1913) 37 M.L.J. 369 in support of the contention that the liability even of non-executants may be described as one on the note. The observations in these cases are opposed not only to the judgments in Krishna Aiyar v. Krishnaswamy Aiyar I.L.R. (1900) 23 Mad. 597, Seetharama Chetty v. Seshiah Chetty (1912) M.W.N. 1011 and Shanmughanatha Chettiar v. Srinivasa Aiyar : (1916)31MLJ138 but to the principle of the decision of the Judicial Committee in Sadasuk Janki Das v. Sir Kishan Pershad (1918) 36 M.L.J. 429 : L.R. 46 IndAp 33 : I.L.R. 46 Cal. 663 (P.C.). The assumption in Nataraja Naicken v. Ayyaswami Pillai (1916) 32 M.L.J. 354 and Thankammal v. Kunhamma (1913) 37 M.L.J. 369 that the decision of the Privy Council in Karmali Abdulla v. Karimji Jeevanji (1914) 28 M.L.J. 515 : L.R. 42 IndAp 48 : I.L.R. 39 Bom. 261 (P.C.) supports the view that even non-executants can be held liable on the bill or note seems to us with all respect unwarranted, because, as pointed out in Shanmughanatha Chettiar v. Srinivasa Aiyar : (1916)31MLJ138 their Lordships expressly say that the suit should not be regarded as one on the bill but must be treated as 'an action of accounting against both Rashid and Karim'.
14. Reference has been made in some of the judgments relied on by Mr. Raghava Rao to the principle that when the loan and the note are contemporaneous, there can be no cause of action independent of the note, because that is the only contract. Judicial opinion is by no means unanimous as to this proposition see Chinnayya Naidu v. Srinivasa Naidu (1934) 67 M.L.J. 912 and Ramasami Pillai v. Murugiah Padayachi (1935) 70 M.L.J. 167 : I.L.R. 59 Mad. 268, but in any event, that proposition can hold good only as between the parties to the note and has therefore no bearing on the question now under consideration.
15. In Satyanarayana v. Mallayya (1934) 68 M.L.J. 540 : I.L.R. 58 Mad. 735 there is no doubt an observation that the difference between the claim on the note and the claim on the debt is a verbal distinction and not one of substance. The observation may perhaps be justified where, as in Krishna Chettiar v. Nagamani Ammal I.L.R. (1915) 39 Mad. 915 the distinction was insisted on merely with reference to the interpretation of the frame of the suit, though even in this respect the Privy Council in Sadasuk Janki Das v. Sir Kishan Pershad (1918) 36 M.L.J. 429 : L.R. 46 IndAp 33 : I.L.R. 46 Cal. 663 (P.C.), insisted on the distinction. It seems to us too sweeping to say that for all purposes the distinction is unsubstantial. To take one instance, the difference will be very material when the Court is called upon to apply the provisions of Sections 120 and 121 of the Negotiable Instruments Act.
16. Some of the cases above referred to also bear on the question whether the plaintiff, as endorsee of the note, is limited to the remedy available on the note or can also claim to recover the debt from the property of non-executants, on the ground of their liability under the Hindu law. Judicial opinion is divided on the point; but, as we have come to the conclusion that this appeal must succeed on the merits, even on the assumption that the plaintiff is entitled to recover the debt from the undivided sons of the executant and even on the footing that he is entitled to invoke the aid of Section 118 of the Negotiable Instruments Act, we do not pause to consider the necessity or desirability of obtaining the opinion of a Full Bench on the questions above discussed. It has to be borne in mind that when evidence has been adduced on both sides, the question of onus is a material or deciding factor only in exceptional circumstances. cf. Yellappa Ramappa Naik v. Tippanna (1928) 56 M.L.J. 287 : L.R. 56 IndAp 13 : I.L.R. 53 Bom. 213 (P.C.) and that even the onus under Section 118 of the Negotiable Instruments Act need not always be discharged by direct evidence adduced by the defendant Muhammad Sharif Khan v. Muhammad Moaszum Ali Khan (1922) 79 I.C. 464, Singar Kunwar v. Basdeo Prasad (1930) 124 I.C. 717 and Bishambar Das v. Ismail A.I.R. 1933 Lah. 1029. Not merely can the Court base its conclusion on the effect of the evidence taken as a whole but it may also draw adverse inferences against a party who being in a position to adduce better evidence deliberately abstains from doing so. Murugesam Pillai v. Manickavasaka Desika Gnana Sambandha Pandarasannadhi (1916) 32 M.L.J. 565 : L.R. 44 IndAp 117 : I.L.R. 40 Mad. 402 (P.C.), Gurusami Nadar v. Gopalaswamy Odayar (1919) 26 M.L.J. 568 : I.L.R. 42 Mad. 629 and Raghavendra Rao v. Venkataswami Naicken (1929) 30 L.W. 966.
17. In dealing with the evidence, we are obliged to refer at the outset to certain defects and omissions in the lower Court's discussion of it which are so material as seriously to impair the value of the judgment under appeal. Even in cases where the defendant is the heir-at-law of the obligor and as such bound by the recitals contained in the document executed by his predecessor, the Court will, in weighing the evidence, be justified in taking into account the fact that the defendant was not himself a party to the transaction and the plaintiff and those supporting the plaintiff are thus placed in a position of advantage. The disparity arising from this circumstance becomes all the greater when the defendants are minors. And yet, the learned Judge has, in this case, made strong comments on the omission of the defendants to disclose the source of their information as to the circumstances attending the execution of the suit pronote and upon the difference in details between the written statement of the first defendant and the written statement filed by the mother on behalf of defendants 2 and 3. On the other hand, it does not appear to have occurred to him at all that the omission of the plaintiffs to call the fourth defendant and G.V. to give evidence in the case was, in the circumstances, of great significance.
18. The fourth defendant was undoubtedly in embarrassed circumstances even at the time of Ex. A. His note Ex. B in favour of G.V. carried interest at Rs. 1-0-6 per cent, per mensem and had been outstanding for about a year by the date of Ex. A and yet we are asked to accept the story that the money he brought for paying off G.V. was with little ado lent away to A.V. on a promissory note carrying interest at Rs. 0-12-0 per cent, per mensem. If the plaintiff intended to rely on the statutory presumption, why should he have called the fourth defendant's brother as P.W. 1 instead of calling the fourth defendant himself. On a perusal of the evidence of P.W. 1, we are not satisfied that P.W. 1 was at all present at the execution of Ex. A. It is the story of P.W. 1 that the money lent under Ex. A was advanced at the fourth defendant's place of business and he admits that the fourth defendant kept accounts. Why have not these accounts been summoned? If the note was executed in a place like the business quarters of Guntur (as P.Ws. 1 and 4 would have it) where plenty of respectable people would have been available, why should attestors of the status of D.Ws. 1 and 2 have been called in, even if (as suggested by P.W. 4) these persons happened to be going along the road at the time. Reliance was placed by Mr. Raghava Rao on the fact that Ex. B also has been attested by D.W. 2; but we have not been told anything as to the place where it had been executed, so that we are not in a position to say whether in the circumstances he was a natural attestor to Ex. B or not.
19. As regards the payment of consideration by plaintiff for the transfer of Ex. A, the only evidence in support of it is that of the plaintiff himself. Even according to him, there was no payment in cash at the time but only the execution of a paddu in favour of G.V. The paddu has not been produced, though the plaintiff offered to produce it, if required. It is the plaintiff's story that sometime later, the paddu was discharged by payment; but one important circumstance bearing on this part of the case has not even been adverted to by the learned Subordinate Judge. As stated already, a notice was sent through D.W. 4 demanding payment even during the lifetime of A.V. The plaintiff would have us believe that D.W. 4 told him of the receipt of some reply even two or three months before the death of A.V. but not of the terms of the reply; but in another part of his deposition, he states that he filed this suit within 4 or 5 months after D.W. 4 told him of the receipt of a reply. The two statements are irreconcilable because this suit has been filed nearly 20 months after the death of A.V. The importance of this part of the plaintiff's story arises by reason of its bearing on the alleged payment of cash to G.V.; because after receipt of a repudiation by A.V., plaintiff was hardly likely to have parted with such a large amount. Even if he had undertaken a legal liability of G.V. by a kind of novatio, it is incredible that he would not have cared to inform himself what kind of reply A.V. gave to the notice sent through D.W. 4. The delay of 20 months in instituting the suit is hardly consistent with the hypothesis that the plaintiff had incurred any kind of liability in this connection. Even according to the plaintiff, he did not take a transfer of Ex. A in the ordinary course of commercial business or even in satisfaction of a claim he had against the fourth defendant which he had no other means of recovering. He voluntarily undertook the fourth defendant's liability under Ex. B in return for the transfer of Ex. A. The evidence of D.W. 4 is not as helpful to the Court as it might have been in view of his status; but reading through it, one cannot resist the suspicion that the notice was probably sent by him at the instance of G.V. himself, who was admittedly his standing client. The bearing of this circumstance on the appellant's case that plaintiff is only a benamidar for G.V. is obvious. In any event G.V. would undoubtedly have been the best witness to speak to these matters as well as to the time when differences arose between himself and his wife and attempts were made to settle those differences.
20. Mr. Raghava Rao contended that it was the duty of the appellants to call G.V. and the fourth defendant, if they thought their evidence material. We are unable to appreciate this argument, in view of the fact that according to the appellants it is G.V. who is really conducting the suit in the plain tiff's name and the fourth defendant has transferred the note to the plaintiff benami for G.V. and in breach of the under standing on which it had been executed. On the other hand the plaintiff has nowhere suggested that G.V. and the fourth defendant are antagonistic to him.
21. Reviewing the evidence with due regard to the considerations above set forth, we are of opinion that the evidence given by two of the attestors (D.Ws. 1 and 2) in support of the appellant's story was at least sufficient to shift the onus on to the plaintiff and that the latter has deliberately chosen not to place the best evidence before the Court. That the third attestor (P.W. 4) supports the plaintiff does not count for much in the circumstances of this case, because that witness is a brother of G.V. and according to the appellants, G.V. is behind the plaintiff in this suit. The episode that P.W. 2 has denied does not seem to us such a vital part of the defendant's case that the discrediting of that episode on the strength of her testimony must of itself, disprove the substance of the defendant's case. Her evidence has to be weighed in the light of the admitted fact that the house in which she lives has long been and still continues to be under mortgage to G.V.; and it is curious that she was in the first instance summoned on the appellant's side. We must also observe that we are not satisfied with the reasons given by the learned Judge for discrediting D.W. 3, who appears to be a man of respectability and not merely of 'professed' respectability. A.V. was no doubt the witness's aunt's daughter's son but that may itself be a reason for his being informed of domestic matters arising in A.V.'s family. We do not see, any change as the learned Judge seems to find between the version given by D.W. 2 and that spoken to by D.W. 3. Their stories relate to different stages.
22. Mr. Raghava Rao rightly urged that the learned Subordinate Judge has had the advantage of seeing the witnesses before him and has expressed himself favourably impressed by the demeanour of P.Ws. 2 and 3 in the witness-box. The cases referred to in this connection do not profess to lay down a rule of law limiting the powers of the appellate Court but only indicate a rule of caution for its guidance. We have duly borne this caution in mind, but for the reasons we have already given, we find ourselves unable to give the same weight to the lower Court's judgment in this case as we should be disposed to do in other circumstances. In the view that we take as to the effect of the whole evidence adduced in the case, this appeal must be allowed and the suit dismissed as against defendants 2 and 3 with costs here and. in the Court below, payable by the plaintiff.
23. A petition (C.M.P. No. 900 of 1931) has been filed on behalf of the appellants for the admission of two documents in appeal. One of them is said to be a draft of a notice alleged to have been sent by A.V. to P.W. 2. We see no justification for admitting such a document at this stage. The other is a certified copy of a deposition given by A.V. in which he denied that any money was due under the suit pronote. That is only a self-serving statement. If all that the appellants desire to show by this document is that the plea of non-liability was put forward by A.V. himself and not invented by them for the purposes of this suit, that is sufficiently established by the evidence of D.W. 4 and it is therefore unnecessary to admit this deposition of A.V.
24. C.M.P. No. 900 of 1931 will accordingly be dismissed.
25. I agree. As to the questions of fact which arise in this appeal, I have nothing to add to what my learned brother has said. It is very apparent that the trial Judge has failed to direct his mind to the proper aspect of some of the salient features of this case, especially the remarkable omission by the plaintiff to call the fourth defendant and Gadde Venkatarayudu. It is possible no doubt that the general handling of this case was due to the frame of the issues. But in any event, when the whole facts were before the Court, the absence from the witness-box of the two persons to whom must have been known the real facts should have been a helpful guide to the Court in arriving at a decision; but this feature of the evidence seems to have been given little, if any, attention. The suggestion thrown out in this appeal that the defendants should have called the fourth defendant and Gadde Venkatarayudu is to me wholly unconvincing.
26. Mr. Raghava Rao and Mr. Sambasiva Rao have addressed us fully on the question of onus of proof and a number of cases have been cited. It is suggested by Mr. Raghava Rao that there is a conflict of authority with regard to the position but it seems to me that the matter now directly before us has not been concluded by authority. The whole difficulty arises from what is described in Krishnanand Nath Khare v. Raja Ram Singh I.L.R. (1922) 44 All. 393 as 'applying the legislative provisions of Western law to the ancient customs and traditions of the law of the joint Hindu family.' Section 118 of the Negotiable Instruments Act is essentially a product of Western law. Long before the provisions of the Bills of Exchange Act of 1882 it was one of the rules of the Law Merchant that consideration was presumed in the case of negotiable instruments. The Indian Evidence Act of 1872 allows the Court to presume that a bill of exchange was accepted or endorsed for good consideration and Section 118 of the Negotiable Instruments Act of 1881 introduces a statutory presumption that all negotiable instruments are made or drawn for consideration. An examination of the Indian case-law shows that complications which have arisen in suits apparently founded on promissory notes brought against members of joint Hindu family have been matters really of pleading and joinder of parties and causes of action. No such difficulties arise in England and no English cases have been cited in argument. It is natural that from Indian case-law should guidance be sought when a relic of the Law Merchant as to burden of proof is intermingled with the doctrine of family necessity. Much reference has been made to Nachiappa Chetty v. Dakshinamurthy Servai (1915) 17 M.L.T. 232 : 28 I.C. 345 which at first sight appears to be in favour of the respondents in the case. But it must be observed in that case the father at the time of the suit was alive and his sons were joined with him as defendants. The suit was primarily against the maker of the negotiable instrument a party to the instrument. Now in this case the essential feature of liability under a negotiable instrument is absent. The decision of the Judicial Committee in Sadasuk Janki Das v. Sir Kishan Pershad (1918) 36 M.L.J. 429 : L.R. 46 IndAp 33 : I.L.R. 46 Cal. 663 (P.C.) is clear that in order to make a person liable on a promissory note it must be shown that his name appears upon it. The decision of the Judicial Committee in Karmali Abdulla v. Karimji Jeevanji (1914) 28 M.L.J. 515 : L.R. 42 IndAp 48 : I.L.R. 39 Bom. 261 (P.C.) does not seem to be in the least at variance with Sadasuk Janki Das v. Sir Kishan Pershadz (1918) 36 M.L.J. 429 : L.R. 46 IndAp 33 : I.L.R. 46 Cal. 663 (P.C.). At page 273 their Lordships point out that the action is one for an account. In this case the defendants' names do not appear upon the instrument; their father's name appears upon it but they are not sued as the legal representatives of their father. They are sued under the provisions of Hindu law by which sons are liable for their father's debts. In other words the suit is on a debt and not on the promissory note at all. When that distinction is borne in mind, it seems to me that this case presents little difficulty. My learned brother has examined the cases and I do not wish to repeat his analysis. It will be seen that the point now raised has never before come for decision in the clear cut form in which it is now presented to us. As stated in Satyanarayana v. Mallayya (1934) 68 M.L.J. 540 : I.L.R. 58 Mad. 735 the difference between a claim on a promissory note and a claim on a debt may in certain cases be lacking in substance and I think Ramesam, J., in delivering the judgment of the Full Bench had such circumstances in mind. But in a case such as is before us the form of the suit is of vital importance to the defendants and for the reason that if the burden is on them to negative the acts of their father they are in a difficult if not in a hopeless position. The defendants are mere children without any knowledge of the facts. The plea therefore in this case as to the form of the action is, as I have said, of great importance and I imagine must always so be in suits brought after the death of the father against the sons ostensibly on a promissory note. As pointed out by my learned brother, some doubt has arisen in this matter owing to the observations made in Ayyasami Pillai v. Guruswami Naicken (1916) 3 L.W. 463, Nataraja Naicken v. Ayyaswami Pillai (1916) 32 M.L.J. 354 and Thankammal v. Kunhamma (1913) 37 M.L.J. 369. I am inclined however to think that Coutts-Trotter, J., in Ayyaswami Pillai v. Guruswami Naicken (1916) 3 L.W. 463 had in mind the importance of the promissory note rather as evidence of the debt and in none of these cases was the question of burden of proof given any prominence. So far as Nataraja Naicken v. Ayyaswami Pillai (1916) 32 M.L.J. 354 is concerned, personally I see nothing very extraordinary in a suit being framed on the note against the maker and under the Hindu law against the members of the family. On the other hand I find it much more difficult to contemplate a suit on a negotiable instrument against anybody not a party to it. The distinction as to the form of pleading is pointed out by Page, J., in Ramgopal Ghose v. Dhirendra Nath Sen I.L.R. (1927) 54 Cal. 380 where a suit in the alternative is discussed by the learned Judge at p. : 393. In Seshayya v. Sanjivarayudu (1933) 67 M.L.J. 393, Cornish, J., indicates the two sorts of liability--by the maker on the note and by the coparcener on the debt under Hindu law. No doubt the observations in reported cases suggest a difference of opinion on the subject. In this respect it must be repeated that the short question as to onus of proof in such a case as this was never considered, in any of those cases and a careful examination of this cases shows that what was being considered was the question of the sons' liability for the amount of the note. But it has now to be considered and answered and I take the view that to hold that the onus of proof as to consideration rests on a defendant sued on a promissory note on which his name does not appear is contrary to the view of the Judicial Committee as clearly expressed in Sadasuk Janki Das v. Sir Kishan Pershad (1918) 36 M.L.J. 429 : L.R. 46 I.A. 33 : I.L.R. 46 Cal. 663 (P.C.). I find it impossible to suppose that the presumption as to consideration was intended to operate except as, between parties to a negotiable instrument. Although Hindu law may make a defendant son liable for the amount of a negotiable instrument signed by his father, nothing except his written name thereon can make him a party thereto, liable as a party, and subject to the statutory presumption affecting consideration between parties. When as here the signatory father is dead and it is sought to make any one other than his legal representatives as such liable for money lent under a promissory note, it seems to me that any subtleties found by the Court in Nataraja Naicken v. Ayyasami Pillai (1916) 32 M.L.J. 354 disappear and the suit can only be on the debt of which the promissory note is evidence and personally I have little difficulty in holding that that being so the burden of proof from the beginning must be on the plaintiff to prove the debt like any other debt.
27. The above view is not, I think, contrary to any actual decision of this Court, nor does it affect any question of liability for a debt; and it is only necessary to state it in a case such as this when a nice question of burden of proof involves the allocation of a form of action to its precise legal category.