The burden of proof regarding the limitation of a promissory note lies upon the plaintiff, and the admissibility of secondary evidence is subject to the requirements of the Evidence Act.

Curgenven, J.

1. This second appeal is preferred by defendants 1 and 2 against the decree of the Court of the Small Causes of Trichinopoly reversing the decree of the Additional District Munsif of Kulitalai dismissing the plaintiffs suit upon a promissory note. The plaint alleged that the defendants jointly executed a promissory note, for Rs. 500 in June 1919 to Virasami Naidu, the divided brother of the plaintiff. Virasami Naidu died in October 1919 and about a month before his death executed a settlement deed, Ex. A, making his brother the plaintiff manager for the purpose of applying certain properties to charitable objects. One of the items of property named in the deed was the suit promissory note. This note was not produced in the case, the allegation in Ex. A, being that it was with Viraswami Naidus wives, with whom the had quarreled. A question for decision in second appeal is whether the entry relating to this promissory mote in Ex. A, is evidence of its existence upon which a decree against the defendants can be passed. Defendant 1 who contested the suit denied, having executed any such note. His brother defendant 2 was ex parte. The learned Subordinate Judge in reversing the District Munsifs judgment has held in brief that Ex. A is evidence against both the defendants, that they are in collusion with Viraswami Naidus widows and that, therefore, they could produce the note if they so pleased., He further considers that the onus of showing that the debt is time barred lies on the defendants.

2. It is virtually conceded that it is impossible to support the decree so far as it affects defendant 2. The settlement deed names defendant 1 only as an executants of the note. The plaint avers that both the defendants executed it but there is no evidence whatever to show that defendant 2 joined in doing 30. The learned Subordinate Judge considers that it is immaterial whether It was executed by defendant 1 alone or by both the defendants, apparently on the ground that defendant ls action bound his brother. There is no proof of any circumstances which would substantiate this view and since the claim proceeds on the footing that defendant 2 was an executants it must be found that there is no evidence to establish it.

3. Turning to the case against defendant 1, the first question which arises relates to the admissibility of Ex. A as secondary evidence of the existence of the promissory note. There is some doubt whether Ex. A is even secondary evidence as defined in Section 63, Evidence Act. But assuming it to be so, it was incumbent on the plaintiff before making use of it to satisfy the requirements of Sections 65 and 66 of that Act. His case as disclosed by the notice Ex. 1 which he sent to defendant 1 and by his plaint was that the note was in the custody of the widows. Indeed upon this ground he imp-leaded them as defendants 3 and 4. The learned Subordinate Judge, as I have said, inferred collusion between the widows and defendants 1 and 2, But though there may be something to be said for this view there is no evidence whatever that these defendants were at the time of suit in possession of the note and it must be taken I think on the allegations made that the plaintiffs had committed himself to the position that the widows possessed it. Under Section 66 secondary evidence may not be given unless the party proposing to give it has previously given to the party in whose possession or power the document is, such notice to produce it as is prescribed by law or as the Court considers reasonable. If it could be held upon the pleadings that the alleged executants of the note had it in their possession, under the proviso to that section the Court might well have dispensed with notice since the only contesting defendant had denied its execution. In the case of the widows however, I can see no sufficient ground for presuming that the notice would be ineffectual. The omission to give notice to the persons said to possess the note a