The duty of the defendant to prove a promissory note as forged and the admissibility of comparing signatures.

This appeal has been preferred against the Judgment and decree in A.S.No.47 of 1994 on the file of Sub Court, Tindivanam. The plaintiff who won before the trial Court, but lost her case before the first appellate Court, is the appellant herein.

.2. The short facts of the case of the plaintiff in the plaint relevant for the purpose of deciding this appeal are as follows:

On 11. 1986 the plaintiff had executed a promissory note for a consideration of Rs.2,500/- agreed to pay 12% interest per annum. The defendant has not repaid the amount in spite of several demands and finally issued a lawyers notice on 28. 1989. Since the defendant is an agriculturist, the plaintiff restricts his interest at the rate of 9% per annum. Hence the suit.

3. The defendant in his written statement would contend that the suit promissory note was not executed by him and no consideration passed and that the suit promissory note is a forged one. He had borrowed a sum of Rs.1,200/- in the year 1986 from one Ramachandra Maistha but the promissory note was executed for Rs.2,500/- including the interest. Even one month before the expiry of the limitation period, the said debt was discharged by the defendant and when the defendant asked for the return of the promissory note, the plaintiff had promised to search the same and returned the same as early as possible. Afterwards, the plaintiff, with the help of the signature found in the earlier promissory note, has forged the suit promissory note. Hence the suit is liable to be dismissed.

.4. On the above pleadings, the trial Court had framed five issues for trial. On the side of the plaintiff, Plaintiff has examined herself as P.W.1 and also examined the scribe of the promissory note as P.W.2 and also marked Ex A1 promissory note. On the side of the defendant, Defendant has examined himself as D.W.1 and also examined another witness D.W.2 and marked Ex B1 dated 28. 1989 notice issued by the plaintiff through her lawyer to the defendant and Ex B2 dated 21. 1990 reply notice sent by the defendant to the plaintiffs counsel.

5. After going through the oral and documentary evidence, the learned trial Judge has come to a conclusion that the plaintiff is entitled to a decree as prayed for and accordingly decreed the suit with costs, and with a direction to the defendant to repay the debt amount within three months. Aggrieved by the Judgment of the learned trial Judge, the plaintiff has preferred A.S.No.47 of 1994 before the Sub Court, Tindivanam who has reversed the findings of the learned trial Judge on the ground that there is a discrepancy seen in the admitted signature of the defendant with that of the signature found in the suit promissory note Ex A1 and that the plaintiff has failed to examine one of the witnesses to the suit promissory note and that Ex B1 notice, the date of the suit promissory note has been mentioned wrongly. Since the plaintiff is not satisfied with the reasoning given in the Judgment of the first appellate Court, she has preferred this second appeal.

6. The substantial question of law involved in this appeal is:

"1. Whether the lower Appellate Court is correct in law in its findings as to Ex A1 as against the provisions of Section 88 of the Negotiable Instruments Act, 1881?

Courts below are right in upholding the oral partition pleaded by the defendant?

2. Whether it is not the duty and burden of the respondent/defendant to prove that Ex A1 is not a valid document as per Sections 102 and 103 of the Indian Evidence Act?

3. Whether the lower appellate Court is correct in law in reversing the valid findings of the trial Court?

7. The Points:

Section 88 of the Negotiable Instruments Act reads as follows:

"Acceptor or indorser bound not withstanding previous alteration: An acceptor or indorser of a negotiable instrument is bound by his acceptance or indorsement notwithstanding any previous alterations of the instrument."

The defence taken by the defendant in his written statemen