The burden of proof to establish the existence of a debt and consideration for a negotiable instrument rests on the plaintiff, especially in cases involving joint Hindu family and pious obligation.

Varadachariar, J.

1. This appeal arises out of a suit for money, instituted by the indorsee of a promissory note (Ex. A) dated 8th August, 1925, for Rs. 5,000 executed in favour of the 4th defendant by one A.Venkatarayudu deceased (hereinafter referred to as A.V.). The endorsement purports to have been made on 2nd July, 1926, in consideration of the plaintiff undertaking to pay off the debt due by the 4th defendant to one G. Venkatarayudu (hereinafter referred to as G.V.) under Ex. B, a pronote dated 2nd August, 1924, for Rs. 4,000. It is common ground that after the suit note was endorsed to the plaintiff, a notice was sent through D.W. 4, a vakil of Guntur, demanding payment of the money, and that A.V. sent a reply stating that the pronote was devoid of consideration. The reply notice is not now forthcoming and it is therefore not possible to say nor is D.W. 4 able to remember what more was stated in it as to the circumstances under which and the purpose for which the note was executed. Notwithstanding this reply which repudiated liability, this suit was instituted only on the last day of the period of limitation, and more than a year and a half after A.V.s death.

2. The appellants, who were defendants 2 and 3 in the lower Court, are the two undivided minor sons of A.V.; the 1st defendant is his undivided younger brother. In the written statements, the defendants set out in some detail the circumstances which according to their information and belief led to the execution of the suit note. Briefly stated, the story was to the effect that in certain domestic disputes between A.V. and G.V. who were brothers-in-law, the 4th defendant a common friend and relation was requested to intercede with a view to persuade G.V. to take back his wife (the sister of A.V.) whom he had sent away or threatened to send away to A.V.s house and that by way of assuring A.V. that both parties will act according to his advice in the matter, A.V. executed the suit note in favour of the fourth defendant, and a brother of G.V. (on G.V.s part) executed a similar pronote for Rs. 5,000 in favour of the fourth defendant. The written statement filed by the first defendant was fuller in particulars than that filed on behalf of the defendants 2 and 3 by their mother. In answer to the plaintiffs allegation that he was a holder in due course, it was stated that he had paid no consideration for the transfer and that he was not the real transferee but only acting on behalf of G.V., who on account of quarrels with the defendants family was trying to harass them by taking a transfer of this note which he knew was not supported by consideration.

3. It is not denied that before the institution of this suit, the relations between G.V. and the defendants had become very strained and had led to civil and criminal proceedings. It is also admitted by some of the witnesses examined on the plaintiffs side that G.V. had put away his wife (the sister of A.V.) and married another wife, but they would have it that this happened only after A.V.s death and in consequence of the disputes between G.V. and the first defendant and had nothing to do with the execution of Ex. A by A.V.

4. Among the issues framed on 13th February, 1929, the first issue raised the question whether the suit note was executed by A.V. and was supported by consideration. The first defendant had filed his written statement on 2nd February, 1929, and on 8th April, 1929, the plaintiffs pleader endorsed on the plaint that the claim against the first defendant was given up. In explanation of this step it was stated that the first defendant was in jail in consequence of a conviction in a Sessions Case and that to avoid delay he was given up. The step that followed makes one suspicious as to the true reason for adopting this course. The later conduct of the litigation shows that the plaintiff was not prepared to examine either G.V. or the fourth defendant as a witness in the case. The issue as originally framed