Kadir Moideen Rowther and Others vs Asiaru

Walsh, J.—The plaintiff in the suit is the appellant in this second appeal. He brought the suit as endorsee of a pro-note Ex. A purported to

be executed on 4th September 1924, by the defendant in favour of one Fatima Bi for a cash consideration of Rs. 900. It was endorsed in favour

of the plaintiff on 3rd June 1925. The defence was a denial of the execution. Three issues were framed in trial of the suit: ""(1) Is the suit pro-note

genuine?; (2) to what relief is the plaintiff entitled? and (3) whether the plaintiff is a bona fide holder in due course?"" (An ex parte decree had been

already passed but �et aside at the request of the defendant). The plaintiff examined himself as P.W. 2 and stated that Ex. A was assigned to him

under Ex. A-1. P.W. 3, Batcha Rowther is an attestor of Ex. A and P.W. 4 is an attestor of Ex. A-1. The trial Court found the note to be genuine

and gave the plaintiff a decree. On appeal by the defendant the suit was remanded for a"" finding on the following issue: ""If Ex. A is genuine, is it not

supported by consideration?"" The finding returned was that the suit pro-note was supported by consideration. The lower appellate Court found

that the note was genuine but allowed the appeal on the ground that the plaintiff was not a holder in due course and that Ex. A was not supported

by consideration. It gave no costs on the ground that neither party had spoken the whole truth with regard'' to the genesis of Ex. A.

u/s 118(a), Negotiable Instruments Act if the note is genuine there is a presumption that there has been consideration. Therefore to prove want

of consideration lay upon the defendant and there is no evidence except his mere word on the point. On the other hand there is evidence both that

Fatima Bibi and her husband were likely to-have been in possession of funds at the time of the pro-note from which to advance the loan and also

that the plaintiff is a man of property who could have taken the assignment. It may be remarked at once that the question as to the passing of

consideration between the plaintiff and Fatima Bi is only remotely relevant as going to show whether the plaintiff was a bona fide holder in due

course. The defendant is not entitled to go into the question of consideration as between Fatima Bi and the plaintiff and even if plaintiff had been a

mere assignee for collection the defendant could not resist his claim on the ground that there was no consideration for the assignment. The learned

District Judge has really based his finding as regards the want of consideration of the pro-note itself on certain criminal proceedings brought by the

defendant against Fatima Bi''s husband and the compromise entered into in that case between the present defendants, and Fatima Bi''s husband.

The lower Court had held that Ex. 3 went to show that the suit pro-note was genuine and for consideration. But the learned District Judge rightly

observed that if Ex. 3 was to be against the defendant it must be taken as a whole. He then however proceeded to fall into an error of using Ex. 3

as a piece of evidence against the plaintiff. All the Exhibits in the criminal case are entirely irrelevant if sought to be used against the plaintiff. He was

not a party to the criminal case and he was not a party to the compromise. The evidence of the defendant shows that the facts on which the

criminal case was laid had nothing whatsoever to do with the suit pro-note and in fact they occurred several months after the date of the suit

pronote. The learned District Munsif was correct in his observation that if the recitals in the razinama Ex. 3 are in. effective and not binding on

Fatima Bi: they cannot be more binding on arc assignee from Fatima Bi, viz., the plaintiff. The learned District Judge apparently thinks that the

evidence of D.W. 3 shows that the plaintiff was a contesting party to Ex. 3. There is absolutely nothing in his evidence even if that evidence is

believed (and the trial Court remarked that this witness and D.W. 4 appear to be prima facie partisans of the defendants to this effect) to show this

All that he says is that plaintiff ac. companied the accused in that case to every hearing of the case. He does not say that he was any party to the

razinama In fact, if the accused in that case, in order to escape the consequences of his action, chose to enter into a razinama of this sort with the

present defendant the plaintiff could not possibly have stopped his doing so. Putting aside the evidence of Ex, 3 which is quite inadmissible as

against the plaintiff, there is no other evidence beyond the defendant''s bare denial of want of consideration, and, in estimating this, the fact that his

main defence that the pro-note is not genuine has been found by both Courts to be false cannot possibly be overlooked.

The presumption therefore raised by Section 118(a) remains very strongly against him and the learned District Judge has, not baaed his decision

on the ground that in spite of all this he believes the defendant''s evidence of no consideration as he, is now speaking the whole truth, because he

expressly states that neither party has. spoken the whole truth with regard to the genesis of Ex. A. It was for the defendant to speak the whole truth

and show why and how there was no consideration. As he has failed to show this, and as Ex. 3 is not admissible against the plaintiff this appeal

must be allowed and the decree of the trial Court restored with costs throughout.