The presumption under Sections 118 and 121 of the Negotiable Instruments Act regarding passing of consideration and capacity of the plaintiff is a presumption of law and the burden of proof is on the maker of the note or endorser to rebut it.

T. N. VALLINAYAGAM, J.

( 1 ) IN these civil revision petitions, the decree of the trial court refusing the claim of the plaintiff based on a promissory note is challenged. The facts in all the cases are similar. Therefore, this common judgment is delivered as has been done in the suits by the trial Court.

( 2 ) THREE suits were filed based on promissory note. S. C. 313/93 and 314/93 were filed by one Maregouda; S. C. 319/3 was filed by one Eramma, his wife. The defendants in all the three suits are common. The case of the plaintiff in S. C. 313/93 is that on 12-11-87, the defendants jointly borrowed a sum of Rs. 12,000/- for agricultural expenses and executed the promissory note agreeing to repay the said sum with interest at 24% p. a. In S. C. 314/97, the date of the promissory note is 3-11-1987; the amount is the same. In S. C. 319/93, the promissory note was for a sum of Rs. 15,000/- and the date is 2-11-1987. In respect of the three promissory notes, notice of demand was made and an interim reply followed by final reply was given by the defendants denying their liability.

( 3 ) THE trial Court framed as many as eight points for determination and holding that the plaintiffs have not proved execution of the promissory notes and the necessity of the defendants to prove that no consideration was passed under the promissory notes, the suits were ultimately dismissed.

( 4 ) THE main defence in the suits by the defendants was one of total denial, contending that the left thumb impression of the 1st defendant and the signature of the 2nd defendant were taken on blank stamp papers for the purpose of change of khatha of the lands and in view of the disputes that arose between the plaintiff and the defendants, the suits came to be filed. The defence was accepted by the trial Court and the suits came to be rejected.

( 5 ) IN all these three civil revision petitions, it is contended by the learned counsel for the petitioner that once execution of the promissory note is admitted, there cannot be denial of a decree; the presumption under Ss. 118 and 121 of the Negotiable Instruments Act regarding passing of consideration and capacity of the plaintiff has not been taken note of by the court below; the question of treating the promissory note as a suspicious document does not arise and the question of capacity of the person lending the loan also does not matter much. Further, the question of proving by attesting witnesses does not arise in respect of a promissory note. However, the scribe and attesting witnesses have been examined. It is also submitted that the family of the plaintiff owns 35 acres of land and they are cultivating it personally. Therefore, the theory of change of khatha was denied.

( 6 ) ON the other hand, the learned counsel for the respondent submitted that the trial court has given a specific finding that :'it has been elicited in the cross-examination itself that he has signed on blank papers about 7 years back. This squarely fits in with the case of the defendants that their thumb impression and signature have been taken on blank pro-notes'. The trial Court also found as follows :'it has been elicited from PW1 himself that during the year 1984, the 1st defendant had executed a mortgage deed in his favour and the amount under the mortgage had not been repaid by the 1st defendant. So, when 3 years prior to the date of suit transaction had been a mortgage-deed executed in favour of the plaintiff in S. C. 313/93 and the said amount had not been paid, I am sure that no ordinary prudent man would have lent again total sum of Rs. 39,000/ -. So, I am of the opinion that the case of the plaintiffs in all these S. Cs. is most improbable and most unbelievable one'. On the above basis, the submission that the order of dismissal is correct and it does not call for any interference.

( 7 ) ON the question of revisional power of this court, in the case of Manick Chandra Nandy v. Debdas Nandy reported in AIR 1986 SC 446, it is held as

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