Chulhai Lal Dass vs Kuldip Singh and Others

Courtney-Terrell, C.J.—This is an appeal from a decision of the District Judge of Darbhanga, reversing a decision of the Munsif of Samastipur, according to which the Munsif decreed the suit to recover a sum of money lent, which suit was founded upon a hand-note alleged to have been executed by the defendant.

The defendant''s defence was that as to the document upon which the suit was based, the signature and the thumb mark are his, but he says, that the circumstances under which he came to append his signature and thumb mark are as follows: He says that some years before the alleged date of the hand-note he borrowed from the plaintiff''s master a sum of Rs. 300 and that at the time when he placed his signature and thumb mark upon the document now said to be a hand-note it bore at that time no other words than an acknowledgment of a loan of Rs. 300. Ha says that the additional words which now appear upon the hand-note and which would give rise to the impression that it was given in consideration of a loan from the plaintiff, have been inserted subsequently to the time when he placed his signature and thumb mark upon the document and he says that he never in fact received any money from the plaintiff and had no such transaction with him. Now the plaintiff and the defendant and witnesses on their behalf gave evidence in support of the respective stories and the learned Munsif believed the story of the plaintiff. He disbelieved the story of defendant that the money which was received by the defendant, had in fact bean received from the plaintiff''s master several years before. He held that the defendant had executed the hand-note in the form in which it was produced in Court and he gave judgment for the plaintiff.

The learned District Judge on appeal found on examination of the evidence that the story of the defendant was the story to be preferred and he found as a fact that the hand-note relied upon by the plaintiff was not genuine, that is to say, he found that although the thumb mark and signature were not only proved but admitted by the defendant the document at the time the thumb mark and the signature were applied was not in fact a hand-note at all and was not a hand-note in favour of the plaintiff. A great deal has been said about the onus of proof in suits founded upon hand-notes and I agree with the proposition that when the execution of the hand-note is admitted the onus of proof of showing that no consideration passed is thrown entirely on the shoulders of the defendant. But in this case the execution of the hand-note is not admitted. All that is admitted is the signature and the thumb mark on a document which is not the hand-note sued upon, and therefore the onus of proving that the hand-note was executed by the defendant is upon the shoulders of the plaintiffs but in any case where evidence on an issue of fact has been given by both sides and that evidence is relevant to the issue it is open to the Court, which is the final Judge of fact, to come to a conclusion either way, and it is not for this Court to disturb the finding of fact. In this case the finding of fact is clear. It is to the effect that the hand-note, and I use the term in the sense of the specific document sued upon, was not executed by the defendant and that it has also been found as a fact that consideration did not pass and that there was no transaction as alleged by the plaintiff.

In these circumstances there can be no ground for the appeal from the decision which dismissed the plaintiff''s suit. I am of opinion that the appeal should be dismissed with costs.

Macpherson, J.

I agree.