1. This second appeal is preferred by defendants Nos. 1 and 2 against the decree of the Court of Small Causes of Trichinopoly reversing the decree of the Additional District Munsif of Kulitalai dismissing the plaintiff's suit upon a promissory note. The plaint alleged that the defendants jointly executed a promissory note for Rs. 500 in June, 1919, to Viraswami Naidu, the divided brother of the plaintiff. Viraswami Naidu died in October, 1919, and about a month before his death executed a settlement deed Ex. A, making his brother the plaintiff manager for the purpose of applying certain properties to charitable objects. One of the items of property named in the deed was the suit promissory note. This note was not produced in the case, the allegation in Ex. A being that it was with Viraswami Naidu's wives, with whom he had quarrelled. A question for decision in second appeal is whether the entry relating to this promissory note in Ex. A is evidence of its existence upon which a decree against the defendant can be passed. The 1st defendant who contested the suit denied having executed any such note. Hie brother, the 2nd defendant was ex parte. The learned Subordinate Judge in reversing the District Munsif's judgment has held in brief that Ex. A is evidence against both the defendants, that they are in collusion with Viraswami Naidu's widows and that, therefore, they could produce the note if they so pleased. He further considers that the onus of showing that the debt is time-barred lies on the defendants.
2. It is virtually conceded that it is impossible to support the decree so far as it affects the 2nd defendant. The settlement deed names the 1st defendant only as an executant of the note. The plaint avers that both the defendants executed it but there is no evidence whatever to show that the 2nd defendant joined in doing so. The learned Subordinate Judge considers that it is immaterial whether it was executed by the 1st defendant alone or by both the defendants, apparently on the ground that the 1st defendant's action bound his brother. There is no proof of any circumstances which would substantiate this view and since the claim proceeds on the footing that the 2nd defendant was an executant it must be found that there is no evidence to establish at.
3. Turning to the case against the 1st defendant the first question which arises relates to the admissibility of Ex. A as secondary evidence of the existence of the promissory note. There is some doubt whether Ex. A is even secondary evidence as defined in Section 63 of the Evidence Act. But assuming it to be go, it was incumbent on the plaintiff before making use of it to satisfy the requirements of Sections 65 and 66 of the Act. His case as disclosed by the notice Ex. I which he sent to the 1st defendant and by his plaint was that the note was in the custody of the widows. Indeed upon this ground he impleaded them as 3rd and 4th defendants. The learned Subordinate Judge as I have said, inferred collusion between the widows and the Jet and 2nd defendants. But though there may be something to be said for this view, there is no evidence whatever that these defendants were at the time of suit in possession of the note and it must be taken, I think, on the allegations made that the plaintiff had committed himself to the position that the widows possessed it. Under Section 66 secondary evidence may not be given unless the party proposing to give it has previously given to the party in whose possession or power the document is, such notice to produce it as is prescribed by law or as the Court considers reasonable. If it could be held upon the pleadings that the alleged executants of the note had it in their possession, under the proviso to that section the Court might well have dispensed with notice since the only contesting defendant had denied its execution in the case of the widows, however, I can see no sufficient ground for presuming that the notice would be ineffectual. The omission to give notice to the persons said to possess the note appears to me to be a fatal objection to the admission of Ex. A as proof of the promissory note and upon that ground alone, therefore, the suit must I think fail. It has been suggested that the inadmissibility of Ex. A was not upon that ground challenged before the lower Courts. But that the question of its admissibility was in general dispute is, I think, clear from the passage in para. 8 of the District Munsif's judgment and from the general line of argument adopted by the Subordinate Judge.
4. Since I hold that the suit must fail for lack of legal evidence of the claim, it is scarcely necessary to discuss the other points raised. Granting that Ex. A can be used as secondary evidence, I think, it may be employed to prove the promissory note under Section 32 (7) of the Evidence Act read with Section 13 (a), since the settlement deed constitutes a transaction by which right was asserted. I may refer to the judgment of Ayling, J., in Saripalli Venkatarayagopala Raju v. Fota Narasayya 26 Ind. Cas. 747 : (1914) M.W.N. 779 for an illustration of the significance of the word 'by' occurring in Section 13 (a).
5. There remains the question of limitation. The plaint refers the execution of the promissory note to June, 1919. Evidence was produced in the suit the effect of which was to show that it was executed in March to May, but this evidence was disbelieved by both the Courts. There is, accordingly, no evidence whatever on the record as to when the alleged promissory note was executed. In these circumstances the learned Subordinate Judge has laid the onus upon the defendants to show that the note is barred. I doubt very much whether this is a correct view of the law. Under Order VII, Rule 1(e), Civil Procedure Code, the plaintiff has to state when his cause of action arose and I incline to the view that it lies upon him to substantiate that statement, a view which appears to me supported by Mahomed Ibrahim v. Morrison 5 C. 36, Mahomed Ali Khan v. Khaja Abdul Gunny 9 C. 744 : 12 C.L.R. 257 and the Privy Council judgment in Lal Chand Marwari v. Ramrup Gir 93 Ind. Cas. 280 : 5 Pat. 312 : 24 A.L.J. 105 : A.I.R. 1926 P.C. 9 : (1926) M.W.N. 203 : 7 P.L.T. 163 : 43 C.L.J. 249 : 50 M.L.J. 289 : 3 O.W.N. 335 : 30 C.W.N. 721 : 28 Bom.L.R. 855 : 42 T.L.R. 159 : 53 A. 24 (P.C.). To cast the burden on the defendants would seem to run counter to the provisions of Sections 101 and 102 of the Evidence Act. The case in Radha Prasad Singh v. Bhajan Rai 7 A. 677 : (1885) A.W.N. 202 would appear to be authority to the contrary but it relates only to a case where a defendant admitting the debt, pleads, that it is barred. In such circumstances it may well be that he has to prove this plea Where, however, there is no such admission, I think the plaintiff must prove everything that is required to entitle him to a decree.
6. I find that the plaintiff has failed to substantiate his claim against both the defendants and accordingly I allow the second appeal, set aside the decree of the lower Appellate Court and restore that of the District Munsif with costs to the appellants throughout.