In the absence of the Negotiable Instruments Act, the burden of proving consideration for a negotiable instrument lies on the plaintiff.

DAVE, J.

( 1 ) THIS is plaintiffs first appeal against the judgment "and decree of the Additional civil Judge, Udaipur, dated 28th September, 1953 whereby their money suit based on a hundi has been dismissed with costs.

( 2 ) THE appellants case was that the respondents Chunilal, Leharilal and Mohanlal are brothers; but in the partnership of respondent No. 4 Mangilal, they had a joint business and their firm went by the name of Leharilal Maugilal. On behalf of this firm, respondent Leharilal handed over to the plaintiffs a darshani hundi dated magh Sud 13 Samwat 2005 for Rs. 5,000/- in consideration of the money which the respondents said firm was liable to pay to the plaintiffs. Thus the drawer of this hundi was Leharilal on behalf of the defendants firm, the drawee was the defendants firm and the payee was the plaintiffs firm. The plaintiffs sold this hundi to the Bank of Jaipur Ltd. at Kishangarh. The bank, however, returned it to the plaintiffs on 19th of February 1949 as it was not honoured by the respondents firm. The plaintiffs, therefore, claimed Rs. 5,000/for the hundi and Rs. 76/10/9 for interest and incidental expenses. In all, they brought a claim for Rs. 5,076/10/9.

( 3 ) THE respondents reply was that the said hundi was without consideration and it was written out by Leharilal simply to cover the losses that he might incur in the satta transactions to the respondents, it was not a darshani hundi but a jokhami hundi which was to serve the purpose of a security for future losses, if any. They raised several other objections, on whose basis the following issues were framed :

1. Whether the plaintiff and defendant firms deal in adat and cash transactions and Shri Narain is the Manager of the plaintiff company. 2. Whether the defendant firm gave the hundi in question in consideration of balance standing in favour of the plaintiff company and whether the defendant No. 1 has signed them as Manager of the defendant firm. 3. Whether the Hundi in question was presented for payment and was dishonoured. 4. Whether the plaintiff is entitled to get interest. 5. Whether any notice regarding this suit was served on behalf of the plaintiff on the defendant and what would be its effect on the suit. 6. Whether this hundi was given towards profits and losses of Satta transactions to the plaintiff and was intended to serve as deposit and so the Hundi was without consideration, 7. Whether the Hundi was not shah Jog but "jokhmi". 8. Whether the plaintiff did not give any notice of dishonour to the defendant and so the former cannot get the suit money from the latter. 9. What is the effect of unstamped Hundi upon the suit? 10. Relief?

( 4 ) AFTER recording the evidence of both parties the trial Court decided issues Nos. 1, 4, 7 and 9 in the plaintiffs favour. Issue No. 5 was decided partly in the plaintiffs and partly in the defendants favour. Issues Nos. 2, 3, 6 and 8 were decided against the plaintiffs and so their suit was dismissed.

( 5 ) THE main arguments advanced before us relate to issues Nos. 2, 6 and 7 and therefore, it would be proper to deal with them before taking up other points. It may be pointed out in the first instance that it was not necessary to frame three issues, namely Nos. 2, 6 and 7 in different language on the same point. The question involved in all the three of them is the same, namely whether the hundi ex. P. 1 was for consideration or it was written out simply to cover the losses of satta transactions, if any, that might be incurred by the respondent Leharilal. It is urged by the appellants learned counsel that these issues have been wrongly decided against his clients. It is contended that according to Section 118 of the negotiable Instruments Act, it was incumbent upon the trial Court to presume that the hundi Ex. P-l was drawn for consideration; that the burden of proving want of consideration was on the respondents and since they had failed to discharge that burden, the suit should have been