S A AYYATHURAI AYYAR Vs. CSSIVARAMA PATTAR KARIKAR

JUDGEMENT

(1.) The appellant s Vakil contends that as appellant endorsed a promissory note for Rs. 300 in favour of respondent, the contract that is implied by the endorsement includes an acknowledgment of the full consideration, and consequently no oral evidence can be adduced to prove that the consideration that passed was less than Rs. 300. Although the maker of the note may not be allowed to prove that he had not received full consideration as recited in the note, yet the contract between the endorser and endorsee (i.e., the endorsement) contains no recital of consideration and although such endorsement is held to imply a contract between the parties to it similar to the contract in the note, it cannot, in my opinion, amount to a contract in writing" that the promise is to be performed in consideration of the receipt of the full consideration for the note. To hold this would be to prevent any endorsement being made as a gift or even for a smaller consideration by way of discount, and consequently no such recital can be implied and, therefore, Section 92 of the Evidence Act is inapplicable. This being so, the Subordinate Judge s finding becomes one of fact.

(2.) The other point argued is one of appreciation of evidence and cannot be considered here.

(3.) The petition is dismissed with costs.