Judgment

K. Ramaswamy, J.

1. Impleadment allowed.

2. Leave granted.

3. We have heard the counsel on both sides. The appellant-defendant is assailing the concurrent findings of the High Court in A. S. No. 372/83, dated 12-6-1990 and the Civil Court in O. S. No. 67/81, dated 12-10-1981 that though promissory note, Ex. A1, dated October 28, 1978 executed for a sum of Rs. 1.5 lakhs recites cash consideration, since the consideration, as pleaded in the plaint, namely, an additional land of 3 acre and 44 cents bearing survey No. 8/1A2 and a building was delivered, in addition to 10 acres of land delivered under agreement of sale dated July 21, 1978, Ex B1, the consideration for Ex. A1 has been proved; and the suit for recovery of the amount on the basis of Ex. A1 is valid in law.

4. The facts in support thereof are that the first respondent as a general power of attorney had entered into an agreement of sale, Ex. B1, to sell 35 acres of land for a total consideration of Rs. 10 lakhs. In furtherance thereof, on paying Rs. 4 lakhs as part consideration, 10 acres of land was put in possession of the appellant. On the appellant requiring additional land and as he did not have cash with him had executed promissory note, Ex. A1, for a sum Rs. 1.50 lakhs and in furtherance thereof possession of three acres and forty four cents of land and building was given to the appellant. It is not necessary for us to proceed further in this matter relating to Ex. B1 for the reason that Ex. B1 has fallen through and the contract has not been completed.

5. Chapter VIII of the Negotiable Instruments Act, 1881 (for short the 'Act') provides special rules of evidence. Section 118 draws presumption as to the negotiable instruments. "Until the contrary is proved ", under clause (a) presumption shall be made of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted endorsed, negotiated or transferred for consideration.

6. This Court in Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316, speaking through K. Subba Rao, J. {as he then was } considering the scope of the presumption had laid down the law thus :

"Section 118 lays down special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder a Court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration. In effect it throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be. The phrase "burden of proof" has two meanings-One, the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial whereas the latter is not constant but shifted as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be directed evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact. A plaintiff who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was reflected for a particular consideration should produce the said account books. If such a relevant evidence is withheld by the plaintiff, S. 114, Evidence Act enables the Court to draw a presumption to the effect that, if produced, the said accounts would be unfavorable to the plaintiff. This presumption if raised by a Court can under certain circumstances rebut the presumption of law raised under Section 118 of the Negotiable Instruments Act".

7. In that case the appell