M G GURUBASAPPA Vs. RUDRIAH

JUDGEMENT

(1.) The finding of the lower appellate court is that the signature which appears on Exhibit P-1 did not exist when that document was handed over to the plaintiff by the defendant. It believed the evidence of the defendant which was corroborated by the evidence of D.W. 2 that Ex. P-3 another promissory note executed by the defendant in favour of the plaintiff was returned by the plaintiff to the defendant without the stamp which originally existed, and on which the defendant has fixed the signature. The lower appellate Court also disbelieved the evidence of the plaintiff that when Ex. P-1 was handed over to him, it contented the signature of the defendant. The clear finding of the lower appellate Court was that there was no such signature.

(2.) The presumption under S. 118 of the Negotiable Instruments Act was thus unavailable to the plaintiff. That presumption becomes available only when there is a promissory note admittedly executed. A document which is not signed by the maker is not a promissory note since, according to the definition of a promissory note contained in the Negotiable Instruments Act, it is an instrument in writing signed by the maker containing an unconditional undertaking to pay a certain sum of money either to the payee or to his order. But if as found by the lower appellate Court Ex. P-1 did not contain the signature of the defendant, it was not a promissory note when it was delivered to the plaintiff by the defendant, and that being so, no appeal could be made to the presumption directed by S. 118 of the Negotiable Instruments Act.

(3.) On the finding recorded by the lower appellate Court that Ex. P-1 did not contain the signature of the defendant when the plaintiff was handed over that document, the duty to prove execution was clearly on the plaintiff, and the plaintiff did not examine the attestors of the promissory note on the plea that they had become hostile. The lower appellate Court did not think that it was proved that there were grounds for thinking that the allegation that the attestors had become hostile was a good allegation. So, the only evidence which was available on record was the evidence given by the plaintiff which the lower appellate court did not believe, and that being so, the finding of the lower appellate Courts was to the effect that the execution of the promissory note was not proved. That finding is a finding on a pure question of fact which is not open to discussion in second appeal.