The presumption under Section 118 of the Negotiable Instruments Act places the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be.

JUDGMENT :- This is a plaintiffs second appeal in a suit for recovery of Rs. 1,746.60 p. on the foot of a Hundi for Rs. 1,800, Ext.7, said to have been executed for M/s. Chunni Lal Satyabrat by Satyabrat, defendant No. 1, in favour of Bhagwan Das Puttu Lal for Rs. 1,800 payable on the expiry of 361 days from the date of the Hundi viz, Kuwar Sudi 10 Sambat 2017 equivalent to 30th Sept. 1960. The defence gave rise to a large number of issues. It is not necessary to refer to them all. The Trial Court found in favour of the plaintiffs and decreed the suit for recovery of Rs. 1,746.60 P. with pendente line and future interest at 6 per cent per annum and costs. On appeal by the defendants, the lower Appellate Court has dismissed the suit on the findings that the Hundi was insufficiently stamped and the court could not act upon it and that the Hundi was not executed for consideration.

2. Learned Counsel for the plaintiff-appellants has assailed both the findings or the lower Appellate Court.

3. A perusal of the judgment of the Trial Court shows that the Hundi was admitted in evidence and marked Ext.7 on 26th Nov. 1968, without any objection to its admissibility on the ground of deficiency in stamp being raised by the defendants. The objection was raised later by an amendment of the written statement and gave rise to issue No. 14. The Trial Court relied on S.36 of the Stamp Act and held that the Hundi having been admitted in evidence, its admissibility could not be challenged in the suit. There could be no doubt that the Trial Court is right and the view taken by it is amply supported by the ruling of the Supreme Court in Javer Chand v. Pukhraj Surana (AIR 1961 SC 1655). In my view the lower Appellate Court went astray in dealing with this point and came to a wrong conclusion. Learned Counsel for the defendant respondents, however, relied on the decision of the Supreme Court in Ram Rattan v. Bajrang Lal (AIR 1978 SC 1393). That case is clearly distinguishable on the facts. A perusal of the judgment of the Trial Court shows that when the Hundi was placed before the defendants for endorsing their admission or denial, the Counsel for defendants Nos. 1 to 5 including Satyabrat, who had executed the Hundi, made the following endorsement :

"Signatures admitted subject to pleas in W.S.

Sd/- Illegible,

Counsel for defendants

Nos. 1 to 5

26-11-62".

4. The Counsel for the guardian ad litem appointed by the court for defendants Nos. 6 to 14 dispensed with the formal proof of the document. The pleas raised in the written statement of defendents Nos. 1 to 5 did not include any plea that the document was inadmissible in evidence on account of deficiency in stamp duty payable thereon. That plea was taken by a subsequent amendment of the written statement of defendant No. 1 only. Under the circumstances the Court was not invited by any of the defendants to decide the question whether the document

was inadmissible on account of deficiency in stamp duty and it was accordingly admitted in evidence and given an exhibit mark on 26th Nov. 1962. On the other hand in Ram Ratans case (supra) the objection to the admissibility of the document on the ground of insufficiency of stamp was not decided. Instead the Court made the Note: "Objected. Allowed subject to objection" and proceeded to mark it as Ext.I. That was a case where the Court postponed the decisio

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