A.M.BHATTACHARJEE, J. - (1.) This appeal arises out of a suit filed under the provisions of O.37 of the Code of Civil Procedure for the recovery of the amount under 5 Hundies of the same date together with interest. The suit having been decreed, the defendants have filed this appeal.
(2.) The execution of the Hundies has not been denied by the defendant No. 2 deposing as a sole witness for the defendants, the other defendant, i.e. the defendant No. 1, being the partnership firm of which defendant No. 2 and his son are the partners. The execution of the Hundies by the defendants having been proved by PW-1 and not having been denied by DW-1, the Hundies obviously attract all the presumptions available under S.118 of the Negotiable Instruments Act, 1881. The relevant portion of S.118 of the Negotiable Instruments Act reads thus :- "Until the contrary is proved the following presumptions shall be made - (a) that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration".
(3.) As observed by the Supreme Court in Kundan Lal v. Custodian, Evacuee Property AIR 1961 SC 1316 at p. 1318, referred to by the learned Judge in his judgement, this S.118(a) lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and a court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration and the burden of proof of wait or failure of consideration is imposed on the maker of the instrument or the endorser as the ease may be.;