An admission of giving a thumb impression on a blank paper does not amount to an admission of execution of a handnote.

1. This second appeal is preferred by the plaintiff against the concurrent judgments of the courts below dismissing the suit filed on the basis of a handnote.

2. The plaintiff filed a suit for realisation of Rs. 2,100/-. The plaintiffs case, in short, was that this advance of Rs. 2,100.00 was given on execution of a handnote by the defendant on the 21st of July, 1963 and the defendant also agreed to pay an interest at the rate of Re. 1/- per cent per month. The amount not having been paid in spite of demands, the present suit was filed.

3. The defence was that the handnote was not executed by the defendant. The further defence was that the loan was taken from one Ram Bilash Singh of village Mailam and he gave his thumb impression on a blank piece of paper at that time. Afterwards the said amount was paid back to the said Ram Bilash Singh and the said Ram Bilash Singh gave an impression to the defendant that the said paper had been torn by tearing off a certain paper in his presence. The further defence was that the defendant apprehended that the said Ram Bilash Singh tore a wrong paper and the real one containing his thumb impression was given to the plaintiff, who had utilized the same for the present suit. Thus it has been alleged that the said handnote is forged and fabricated and the defendant never executed a handnote in favour of the plaintiff. The alleged handnote is also said to be without consideration.

4. The trial court on a consideration of the evidence came to the finding that the left thumb impression on the handnote was that of the defendant. It further found that the handnote in suit is genuine and valid but no advance was made by the plaintiff. As such, it dismissed the suit. Lower Appellate Court held that the plaintiff failed to prove the execution of the handnote and passing of consideration. It further found that the left thumb impression on the handnote was not that of the defendant. With the aforesaid finding it affirmed the judgment of the trial court and dismissed the appeal.

5. Mr. Devkant Chaudhary, learned counsel appearing on behalf of the appellant has contended before me that in the present case it should be taken that the execution of the handnote has been admitted by the defendant as his case was that he gave the thumb impression on a paper which was handed over to one Ram Bilash Singh, He further contended that the plaintiff being the holder in due course of the said handnote is entitled in law to institute the present suit. Mr. Lakshman Saran Sinha appearing on behalf of the respondents, however, has contended that the statement that has been made in the written statement cannot amount to an admission of the defendant of the execution of the handnote in favour of the plaintiff. Rather, if it is construed as a whole, it should be taken that there has been specific denial of the execution of any handnote in favour of the plaintiff. I have already stated above the relevant cases of the parties which are necessary for determination of the present appeal. From the written statement it would be found that in explicit terms there has been no admission by the defendant regarding execution of the handnote. The only admission made was that he gave his thumb impression in a sada paper to one Ram Bilash Singh from whom he took certain loan which was afterwards repaid and in presence of the defendant at the time of the payment of the said amount the said Ram Bilash Singh tore off the paper bearing thumb impression of the defendant. He further pleaded that it may be that the said Ram Bilash Singh handed over the said paper to the plaintiff which has been utilised for the present case. This is the relevant case that has been made out in the written statement.

6. Mr. Dev Kant Chaudhary contended that the aforesaid statement will amount to an admission of execution of the handnote. He relied upon a single Judge decision of this Court in Sahdeo Mauar V/s. Pulesar Nonia, reported in AIR 1930 Pat 598. In