Section 43 of the Contract Act applies to the case of heirs who have jointly succeeded to the liability of their deceased ancestor.

MISRA, J.

( 1 ) PLAINTIFF's suit is for recovery of Rs. 6,800 with pendente lite and future interest on the basis of a promissory note (Ex. 1) dated 9-8 1957 for Rs. 5,000/- executed by deceased Ramji Haridas (hereinafter to be referred to as the deceased) Defendants Nos. 1 and 2 are the sons Defendant No. 3 is the widow and defendant no. 4 is the son's son of the deceased. In the plaint, a bald case was advanced that the defendants as heirs and successors of the deceased are in possession of vast properties left by him and did not pay up the dues despite repeated demands the cause of action was alleged to have arisen on 9-8-1954 when the loan was advanced and on 9-8-1957 when Ex 1 was renewed. At the evidence stage plaintiff advanced the story that in his presence at Jatni Ex. 1 was executed and the deceased put the dates thereon. The averments in the written statement are of a general nature. Though pleas were taken that the suit was barred by limitation and was defective for non-joinder of parties, it did not indicate the facts on the basis of which such pleas were advanced. There was no denial of the assertion in para 3 of the plaint that the defendants were in possession of the properties of the deceased as heirs and successors. The execution of the pronote by the deceased was not denied.

( 2 ) THE learned Trial Court recorded the following findings:

(a) The original loan was advanced on 9-7-1951. Plaintiff admitted in his evidence that the handnote of 1954 was executed one or two days before 1954. Ex 1 was renewed on 9-8-1957 and by then the handnote of 1954 was barred by time.

(b) The story advanced by the plaintiff that Ex 1 was executed in the presence of P. Ws 1 and 2 at Jatni by the deceased who put the dates 98-1957' thereon is not acceptable.

(c) From other evidence, it however appears that Ex. 1 was executed by the deceased and he put the dates 9-8-1957'. The suit having been filed on 9-8-1960 is not barred by limitation

(d) Admittedly, the daughters of the deceased have not been made parties to the suit. The suit is however, maintainable as defendants are in possession of the

estate of the deceased. The learned Subordinate Judge decreed the plaintiff's suit Defendants are the appellants.

( 3 ) PLAINTIFF came forward with an untrue story that Ex. 1 was a renewal of a pro-note executed on 9-8-1954 for Rs. 5,000/- paid in cash The finding of the learned subordinate Judge is that the original loan to the tune of Rs. 5,000/- was advanced on 9-7-1951 and the handnote of 1954 which is not exhibited in this case was executed one or two days before 9-7-1954 and that Ex. 1 was renewed on 9-8-1957 after the 1954 promissory note had been barred by time. This finding is not assailed by Mr. Mohanty. This does not however, affect the plaintiff's case Under Section 25 (3) of the contract Act, an agreement made without consideration but in writing and signed by the person to be charged therewith to pay wholly a debt of which the creditor might have enforced payment but for the law for the limitation of suits is a contract. Thus Ex. 1 though renewed after the expiry of the period of limitation of the previous promissory note in 1954 is valid and enforceable in law.

( 4 ) IT is the common case of the parties that Ex 1 was executed by the deceased. Dispute centres round the Question whether the two dates 9-8-1957' one at the top and the other below, the signature of the deceased were put by him or have been subsequently put in by the plaintiff to avoid limitation.

( 5 ) MR Mohanty does not dispute the finding of the trial court that Ex. 1 was not executed on 9-8-1957 at Jathi in the presence of P. Ws. 1 and 2. He, however, argues that the dates 9-8-1957' on Ex. 1 shall be presumed to be on the promissory note on that date unless the contrary is proved and that defendants have failed to establish by satisfactory evidence that those dates were not on the promissory note on the date of execution. This contention requires careful ex