Modi, J. - (1.) THE suit out of which this second appeal has arisen was brought by Motilal against the present appellants Kastoor Chand and his son Kanhya Lal, and two other sons of Kastoorchand viz. , Motilal and Basantilal who have been impleaded as respondents in this appeal.
(2.) THE plaintiffs case was that Kastoorchand was the karta of a joint Hindu family consisting of himself and his sons and carried on business in the name of Malookchand Kastoorchand. THE case disclosed in the plaint further was that Kastoorchand had borrowed a sum of Rs. 1,502/- from the plaintiff Motilal on Posh Sudi 2 Svt. 2004, and the latter had arranged the above-mentioned amount to be paid in the manner following: - (1) A sum of Rs. 1,200/- was paid through the firm of Raghveshwar Madhu-sudan of Banswara, the allegation being that it was a firm in which the defendants were partners;. (2) A sum of Rs. 202/- was paid to the defendants through another firm Cham-palal Kishenlal of Ghotal; and (3) A sum of Rs. 100/- was paid to Pyarji Menulal Tilwada on behalf of the defendants. THE plaintiff relied in support of his case on the Khata Ex. P-1 which was alleged to have been executed by Kastoorchand in favour of the plaintiff. It would be convenient to state the recitals in the Khata at this stage. THEse recitals are : "received a sum of Rs. l,502/- (in words fifteen hundred and two) only in cash. Interest payable on this amount would be rupee one per cent per mensem. Attested by Jodawat Rikhabdas Deepchand, Signed by Malookchand Kastoorchand. " THEre is an entry of a sum of annas -/5/6 as costs of a notice dated 24th March, 1949, and a further entry of interest amounting to Rs. 275,/3/6 on the debit side, the total amount thus being Rs, 1,777/9/- against which there is a credit entry of Rs. 200/- dated the Baisakh Vadi 1 received through Deepchand. THE total amount due on the khata Ex, P-1 thus works out to Rs. l,577/9/- for which the plaintiff brought the present suit on 25th August, 1949. THE defendants Kastoorchand, Basanti-lal and Kanhyalal minor through his father Kastoorchand who was his guardian ad litem contested the suit, and his (Kastoorchand's) remaining son Motilal allowed the suit to go ex parte against him. THE principal pleas raised by the defendants were that Kastoorchand had not executed the khata Ex. P-1 at all and that he had never received the sum of Rs. 1,200/- from the firm of Reghveshwar Madhusudan of Banswara, and, therefore, Ex. P-1 was void for failure of consideration. As regards the remaining two sum of Rs 202/. and Rs. 100/-, it is common ground between the parties that the sum of Rs. 202/- had been paid back although the defendants' contention was that this had nothing to do with the khata. THE defendants further admitted that the sum of Rs. 103/- which was paid by the plaintiff to. Pyarji Nenulal on behalf of the defendants was still due from Kastoorchand and he was prepared to pay it. THE trial court decreed the plaintiff's suit for Rs. 1. 577/9/- and allowed interest at 6% per annum from the date of the decree to the date of realization, and did not allow any pendente lite interest. Both parties contested this decree before the District Judge of Pratapgarh; the plaintiff by an appeal for the interest disallowed and the defendants by a cross-objection contested that the entire suit less the sum of Rs. 100/- admitted should have been dismissed THE learned District Judge, however, affirmed the decree of the trial court, and dismissed both the appeal and the cross-objection by his judgment dated 4th September, 1951, from which the defendant have filed the present appeal, and the plaintiff has further filed a cross-objection praying for the award of pendente lite interest to him. I shall take up the appeal first. The main contention on behalf of the defendants in this Court is that the courts below had looked at the case from an entirely erroneous angle inasmuch as they had wrongly thought that the burden of failure of consideration rested on the defendants in the present case, which burden, it was held they had failed to discharge. It undoubtedly appears from the judgment of the learned District Judge that he considered that as the execution of Ex. P-1 had been established, it was for the defendants to prove that it was not supported by the consideration alleged therein. (See paragraph 11 of the judgment ). Having so laid down, the learned District Judge discussed the evidence of the defendants and came to the conclusion that it was not worthy of belief. It appears to me also that the evidence of the defendants does not deserve any serious consideration; but the important circumstance which was necessary to have been borne in mind in the court below was that the present case was one wherein the version as to consideration disclosed by the plaintiff in his plaint was different from the version contained in the khata Ex. P-1 upon which the plaintiff based his suit. The khata speaks of the entire sum of Rs. 1,502/-having been advanced in case. The plain gives, however, a different story. And so far as the ;sum of Rs. 1,200/- is concerned, the plaint shows that it was not advanced in cash but that arrangements had been made for that amount to be paid to the defendants through the firm of Raghveshwar Madhusudan of which the defendant Kastoor Chand was himself alleged to be a partner. In fact, the entire evidence of the plaintiff shows beyond any manner of doubt that the sum of Rs. 1. 200/- was not paid in cash on the date the khata was executed on Posh Sudi 2, Svt. 2004. Motilal plaintiff himself admitted that the sum of Rs. 1,200/- was not paid in cash but that he had given a letter to Mansukh for the payment of that sum to the defendants. P. W. 2 Deepchand is the father-in-law of the plaintiff Motilal. According to this witness also, no cash payment of the sum of Rs. 1,200/- had been made to the defendant Kastoorchand. He States, however that Kastoorchand had admitted in his presence the receipt of Rs. 1,202/- as having been received from his partner, presum-ably meaning thereby Raghveshwar Madhusudan. He does not speak of any letter having been given by Motilal to Kastoorchand. Then I may deal with the evidence of Sewalal P. W. 4. Sewalal is the son of Pyarchand who was a partner of the Raghveshwar Madhusudan. This witness stated that he used to work at his father's firm, as the latter was an invalid in 1947-48. This witness merely gave oral testimony to the effect that a sum of Rs. 1,200/- had been debited against Motilal, and given over to defendant Kastoor chand at the instance of Motilal. When the witness was questioned, however, whether the said sum had been given to Kastoorchand in cash, the witness replied that he could not say whether it had been given to Kastoor Chand in cash or by adjustment. He further stated that the partner Laxminarain used to write up the accounts, and it is obvious, therefore, that he has no first-hand knowledge of the exact entry made in the books of the firm in relation to this disputed amount. Questioned further whether he had the books with him, he replied in the negatives. In my judgment the evidence of this witness as given in the examination-in-chief even was not satisfactory, and in his cross-examination he admitted that he had been in Government service in 1947-48, the time to which the payment of Rs. 1,200/- must relate, if made, and it is, therefore, not free from doubt whether he was in a position to look after the work of his father's firm as stated by him. He further disclosed that the payment had been made because Motilal himself had come but that he did not know or remember whether Motilal had sent any letter at all with Kastoorchand for any payment to be made to him. Now Motilal says nothing in his own deposition that he at all went to have the payment made to Kastoorchand personally. It appear from the evidence of this witness that the firm of Raghveshwar Madhusudan maintained a rokar or a cash-book, and be was altogether unable to recollect any other entries in the rokar of that year. He also said that he was unable to say whether Kastoorchand's signature had been taken in the rokar or not. From all this, it seems to me that the evidence of this witness cannot be relied upon to prove that payment of the sum of Rs. 1,200/- had actually and in fact been made to Kastoorchand. It deserves to be pointed out in this connection that when the plaintiff got this witness summoned, the defendants made an application on the 4th April, 1951 (the case was posted for the evi-dence of the witness on the 20th April, 1951) that in view of the plaintiff's case being that payment had been made to the defendants of the sum of Rs. 1,200/- through the from of Raghveshwar Madhusudan, witness Sewalal be asked to bring with himself the relevant rokar or other books wherein the alleged payment might have been recorded to have been made to Kastoorchand. The court accordingly ordered that Sewalal be directed to bring the account-books under reference when he came to give his evidence. It transpired, however, that Sewalal entirely failed to produce the required account-books or to satisfactorily explain the absence of them, and merely came to support by his word of mouth that the sum of Rs. 1,200/- had been paid to Kastoorchand as required by Motilal personally. It may also be pointed out that the plaintiffs allegation that Kastoorchand was a partner of the firm Raghveshwar Madhusudan is not at all deposed to by Sewalal. According to him there were only three partners of the firm, none of whom obviously was Kastoorchand. This evidence, in my opinion,, is altogether insufficient to prove the case set up by the plaintiff in his plaint or at the trial. The learned District Judge, however, placed the burden of failure of consideration on the defendants, and as the defendants' evidence was not of a type which carried any credence, he held that the plaintiff's case was proved became according to him and the court below, the signatures of Kastoorchand had been established beyond doubt on the khata Ex. P-l. I have no doubt that the courts below were mistaken in the view which they adopted as to the burden of proof in a case like the present. It is true that where a plaintiff bases his claim on a document which has been executed by the defendant and is proved to have been so executed, the burden of establishing failure of consideration is shifted to the defendant, and if he fails to discharge the burden which so lies so him, the plaintiff is undoubtedly entitled to succeed. This rule, however, has no application in cases where the consideration set up by the plaintiff in the document on which he sues is different from the consideration which he seeks to prove at the trial, and in such a case the true view is that the burden of proving consideration rests squarely on the shoulders of the plaintiff himself. In such a case I am further of the opinion that if the plaintiff fails to prove consideration as he should, he has no right to succeed merely because the case set up by the defendant is itself open to infirmity. I shall refer to a few cases in support of the view I have expressed above. The first case to which reference may by made and which appears to have stood the test of time is Makund vs. Bahorilal (l ). In that case the defendants admitted the execution of the bond on the basis of which they had been used but denied that they had received any consideration for it at the time of the execution of the bound as stated therein. The trial court wrongly laid the burden of , proving consideration for the bond upon the plaintiff who led evidence on the point. The evidence of the plaintiff's witnesses showed that no consideration had been paid at the time of the execution, and if at all paid, it was paid at a subsequent time but the plaintiff did not produce any further evidence to establish such payment. The trial court dismissed the suit; but on appeal the first appellate court reversed the decree of the trial court and gave the plaintiff a decree. It was held by the High Court that - "although the plaintiff ought not to have begun, yet as he had done so and his witnesses had proved that the consideration for the bond had not been paid as admitted in the bond, a new case was opened up, in which the onus was shifted back to the plaintiff to establish that he had, not at the time alleged in the bond, but at some subsequent time, paid to the defendants the consideration for the bond. " It was further held that the lower appellate court should not have ignored what had taken place, but should have dealt with the case in appeal in the shape it came before it, and in that view the decision of the trial court was restored. In the case of Md. Shafi vs. Moaz-zam Ali (2) the same principle was upheld. In Sunder Singh vs. Khushi Ram (3), it is again held that - "where, in a suit on promissory note plaintiff set up different stories as to consideration at different stages, the burden of proving consideration shifs on him. " The last case to which I may refer is Uttam Chand vs. Hakim Mohammed (4) which is almost on all fours with the present case. There it was held that the signature of the defendant having been proved it was for him to establish want of consideration. But the plaintiff produced two witnesses whose evidence as regards consideration was directly in conflict with the entries which had been made in the plaintiff's account-book. The result, therefore, was that the plaintiff having taken upon himself the onus of proving the passing of consideration had failed in his attemp. The plaintiff's suit was dismissed and it was held that it was rightly so dismissed. The principle to be deduced from the above case is briefly this, that where it is admitted by or proved against the party relying on a document that the consideration as stated in the document did not pass, the onus to prove that the document was for consideration rests on him, no matter that it is held that the signature of the defendant on the document stands proved. In this view of the matter, 1 have no hesitation in holding that the lower appellate court was wholly wrong when it came to the conclusion that the burden of proving failure of consideration, in the circumstances of the present case, lay on the defendants. I may also add that in this case as issues were framed, this burden was placed on the plaintiff, and even though the courts below held that the signature on the khata was proved to be that of the defendant, this burden never shifted from his shoulders and remained throughout where it lay initially for the simple reason that the plaintiff had set up one kind of consideration in the document on which he based his suit and alleged a different kind of consideration in his plaint, and sought to prove it at the trial. From the evidence which I have discussed above, I am constrained to come to the conclusion that the plaintiff has failed to discharge the burden which lay upon him in the present case. The result is that I hear by parts allow this appeal, set aside the judgment and decree of the court below and dismiss the plaintiff's suit, except for the sum of Rs. 100/- admitted by the defendants to be due from them to the plaintiff. The decree against the defendants is reduced accordingly and will be to the extent of Rs. 100/- only. So far as the sons of Kastoorchand are concerned, as they are admittedly members of a joint Hindu family of which Kastoorch and was the Karta, their liability for the decretal amount will extend to their interest in the joint family. The plaintiff will also be entitled to interest at the rate of 6% per annum on the amount decreed from the date of suit to the date of decree. He will also be entitled to future interest at the same rate up to the date of realisation. The cross-objection of the plaintiff succeeds only to this extent and no more. As regards costs, I am of opinion that the conduct of the defendants in the present case, in spite of the fact that the suit against them almost entirely fails, smacks of suspicion and is in any case not above board, particularly as the appellant Kastoorchand did nothing to have the khata cancelled although it was signed by him when he had not been successful in obtaining the payment of Rs. 120 /- from the party concerned as alleged by him. The plaintiff may have failed in this case not necessarily because his case was false but because he failed to adduce the best evidence to prove it. In these circumstances I direct that the plaintiff will be entitled to his costs on the part of his claim which has been decreed only, but as regards the rest of the claim disallowed, both parties shall bear their own costs throughout. . ;