The burden of proof lies on the plaintiff to prove the borrowing of money and execution of the promissory note by the deceased promisor.

1. The defendant in O.S.No.379 of 1990 on the file of the learned District Munsif, Tirukoilur, is the appellant. The plaintiff is the 1st respondent and the 2nd defendant is the 2nd respondent. The plaintiff filed the said suit for recovery of a sum of Rs.6,000/-with interest @ 12% p.a. due under a promissory noted dated 09.03.1988. By decree and judgment dated 24.12.1983, the learned District Musnif dismissed the suit. As against the same, the plaintiff preferred an appeal in A.S.No.66 of 1994. By decree and judgment dated 29.03.1996, the learned Principal District Judge, Villupuram, allowed the appeal, set aside the decree and judgment of the trial court and decreed the suit as prayed for. As against the same, the 1st defendant is, now, before this court with this second appeal.

2. The case of the plaintiff in brief is as follows:- On 09.03.1988, the husband of the 1st defendant by name Karunakaran borrowed a sum of Rs.6,000/- from the plaintiff and executed a promissory note thereby promising to repay the same on demand with interest at 12% p.a. Subsequently, Karunakaran passed away leaving behind the 1st defendant to succeed to his estates. The 1st defendant has inherited the properties of the deceased Karunakaran. Thereafter, a demand was made by the plaintiff to the 1st defendant for the repayment of money due under the promissory note. The 1st defendant failed to repay the amount. Therefore, the plaintiff filed the present suit for recovery of money.

3. The 2nd defendant remained ex parte

4. The 1st defendant filed a written statement wherein , he disputed the very borrowal of the amount by her husband Karunakaran and the execution of the promissory note. According to her, the mother in law of the 1st defendant by name Mrs.Nagarathinammal declined to give share in the property in favour of the 1st defendant. This has resulted in suit in O.S.NO.1001 of 1989. The plaintiff is the sister's son of Mrs.Nagarathinammal. It is because of the said enmity, the promissory note has been manufactured falsely to make the claim. Therefore, according to her, the suit is not sustainable and the same is, therefore, liable to be dismissed.

5. Based on the above pleadings, the trial court framed appropriate issues. During trial, on the side of the plaintiff, 4 witnesses including the plaintiff were examined as P.Ws.1 to 4 and 3 documents were exhibited as Exs.A.1 to A.3. On the side of the defendants, 2 witnesses were examined as D.Ws.1 and 2 and 4 documents were marked as Exs.B.1 to B.4. Having considered the above materials, the trial court dismissed the suit. As against the same, the plaintiff preferred an appeal in A.S.No.66 of 1994 before the learned Principal District Judge, Villupuram. Pending enquiry, on the side of the plaintiff ,an additional documentary evidence was sought to be exhibited. The learned Principal District Judge accepted the request made by the plaintiff and allowed the document namely, pass book, to be exhibited as additional documentary evidence under Ex.A.4. Having considered the available records, by judgment and decree dated 29.03.1996, the learned Principal District Judge allowed the appeal, set aside the decree and judgment of the trial court and decreed the suit as prayed for. That is how, the 1st defendant is, now, before this court with this second appeal.

6. When the second appeal was admitted, this court framed the following substantial questions of law:-

(1) Whether the order of the lower appellate court in holding that the deceased Karunakaran had executed the said pronote is not based on any evidence on record and whether it should not have applied the principle governing the burden of proof of passing of consideration after the death of the deceased promissor is on the promisee and whether the lower appellate court should not have applied the principles laid down in 1937 (1) M.L.J. 543 [Varadhachari and Mockett JJ] properly and correctly?

(2) Whether the lower appellate court ought not to