The presumption of consideration under Section 118 of the Negotiable Instruments Act, 1881, is mandatory and applies between the parties to the instrument or persons claiming under them. The burden of proof of want or failure of consideration is imposed on the maker of the instrument or the endorser, as the case may be.

( 1 ) THIS appeal arises out of a suit filed under the provisions of O. 37 of the Code of Civil Procedure for the recovery of the amount under 5 Hundies of the same date together with interest. The suit having been decreed, the defendants have filed this appeal.

( 2 ) THE execution of the Hundies has not been denied by the defendant No. 2 deposing as a sole witness for the defendants, the other defendant, i. e. the defendant No. 1, being the partnership firm of which defendant No. 2 and his son are the partners. The execution of the Hundies by the defendants having been proved by PW-1 and not having been denied by DW-1, the Hundies obviously attract all the presumptions available under S. 118 of the Negotiable Instruments Act, 1881. The relevant portion of S. 118 of the Negotiable Instruments Act reads thus :-"until the contrary is proved the following presumptions shall be made - (a) that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration".

( 3 ) AS observed by the Supreme Court in Kundan Lal v. Custodian, Evacuee Property AIR 1961 SC 1316 at p. 1318, referred to by the learned Judge in his judgement, this S. 118 (a) lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and a court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration and the burden of proof of wait or failure of consideration is imposed on the maker of the instrument or the endorser as the ease may be.

( 4 ) WE agree with the learned Judge that the mandatory presumption in favour of consideration of negotiable instruments flowing irresistibly from S. 118 (a) of the Negotiable. Instruments Act has not been rebutted in this case. The evidence in the case as made out in para 8 of the written statement as well as in the deposition is that one Naraindas was acting as defendant's financial broker for quite some time and in 1967 some blank Hundies signed by the defendants were handed over to that Naraindas to secure loan for the defendants. Without arranging any such loan, that Naraindas died in May, 1968 and in spite of their best efforts, the defendants could not get back their Hundies and the defendants apprehend that those blank Hundies have been utilised for the purpose of this suit.

( 5 ) IF this was true, then, as pointed out by the learned Judge, the defendants were obviously expected to take some steps for the recovery of the Hundies after Naraindas's death from his officers, employees or legal representatives. But the defendants have done nothing of the sort and, on the contrary, DW-1 has admitted that he even does not know who are the legal representatives of that Naraindas, DW-1 has further admitted that he has never made any attempt in writing asking Naraindas or his representatives to return those blank Hundies, nor has he made any complaint about that to the police or any other authority. Admitting that he knows that Naraindas has a son, DW-1 has tried to say that he could rot contact that son as "he having cheated many was keeping away from the market". But not a single witness from the market or elsewhere has been examined to prove the alleged abscondence of that son and DW-1 has ultimately admitted that he cannot say whom that son cheated and that he cannot name a single party so cheated. Naraindas is stated to have died in 1968; the demand notice Ext. 2 is admitted to have been served on the defendants in 1969 and the suit has been filed in 1972. If the defence case was true, then it was expected that many other businessmen having business relation with Naraindas and the defendants would have come to know about the defendants' failing to recover the signed blank Hundies from the employees or officers or the legal representatives of Na