NAGENDRA PRASAD SINGH, J.

1. The plaintiff is the appellant. The suit in question had been filed on behalf of the plaintiff for realisation of a sum of Rupees 2431/- being the principal alone with interest. The claim was based on a handnote executed by the father of the defendants, Nand Kishore Kanth, in favour of the plaintiff for the amount which had been advanced by the plaintiff in past.

2. According to the plaintiff, the executant had taken a sum of Rs. 1801/- for meeting certain necessities and when he was unable to return the said amount, he executed the handnote in question on 17-8-1961 and agreed to pay interest at the rate of one per cent per month. The executant however died on 7-8-1963 leaving behind the defendants as his heirs.

3. Defendants 1 to 3 contested the suit, and inter alia, denied that their father took a sum of Rs. 1801/- or any amount at any time from the plaintiff. They also denied that any such handnote was executed by their father in favour of the plaintiff. According to them, the document in question is a forced and fabricated one and without any consideration. One of the pleas which was taken on their behalf is that defendant No. 4, who was the daughter of the executant, died during the pendency of the suit and as her legal heirs were not substituted, the suit had partially abated with respect to the share of the deceased defendant No. 4.

4. Learned Munsiff came to the conclusion on the materials on record that handnote had been executed by Nand Kishore Kanth aforesaid. However, he was of the opinion that the plaintiff had never paid any sum to the executant at any point of time. On that finding, he negatived the claim of the plaintiff. The plaintiff filed an appeal against the judgement aforesaid, which was heard by the learned Subordinate Judge, who recorded the following findings :-

"I hold that the handnote (Ext. 3) was not based on taking of loan by the father of the defendants Nos. 1 to 3 but was in lieu of amicable settlement held between the parties in respect of the loan of Monohar District. I agree with the findings given by the lower court that the handnote (Ext. 3) was without consideration and it was in respect of some previous transactions which has not been proved by the plaintiff. The plaintiff has also concealed this aspect of the matter."

On that finding the judgement and decree of the trial court were affirmed in appeal as well.

4A. On behalf of the appellant, it was urged before a learned Judge of this Court that on the finding recorded by the court of appeal below the suit of the plaintiff should have been decreed inasmuch as it is not necessary for a plaintiff to prove in a suit based on handnote that money had been advanced at the time of the execution of the handnote; once the handnote is found to be executed by the person concerned in lieu of consideration, the court has to decree the suit in favour of the plaintiff. The learned Judge has referred the aforesaid question for consideration by a Division Bench.

5. Whenever a suit is based on handnote, the plaintiff has to first prove due execution thereof. But then, before a decree in favour of the plaintiff is granted, the court has to be satisfied that the execution of the handnote was for consideration. While judging this respect of the matter, Sec.118(a) of the Negotiable Instruments Act is relevant, which runs as follows :

"Until the contrary is proved, the following presumption shall be made : that every negotiable instrument was made or drawn for consideration......"

In view of this provision it has to be presumed that every negotiable instrument was executed for consideration, the result whereof will be that whenever a claim is made on and negotiable instrument the onus of proving want of consideration is on the defendant. So far as this respect of the matter is concerned, it could not have been seriously disputed nor it has been disputed. What was, perhaps, urged on behalf of the defendants in the court below