Mohd Noor Ahmad JCA:

[1] This is an appeal by the 1st defendant against the decision of the learned judge who allowed the plaintiff's re-amended claim against him for the sum of RM580,000 with interest thereon at the rate of RM3,000 per month from 18 November 1983 to the date of full realization, being the plaintiff's entitlement under the will of Fung Yok Ying (the deceased).

[2] To summarize the facts:

(1) The deceased died on 21 February 1987 leaving a will naming the defendants and one Elizabeth Tang Suk Yee (Elizabeth) as the executors and executrix of her estate. The beneficiaries of her will were her five children (which included the executors and executrix) who were entitled to her estate in equal shares. The plaintiff is one of the beneficiaries. Probate was extracted on 6 February 1996. Elizabeth withdrew her consent to be an executrix, leaving the defendants to be the joint executors of the estate.

(2) On 6 July 1987 upon opening a safe deposit box maintained by the deceased with Chartered Bank, Renting Branch, Kuala Lumpur, amongst other valuables and personal effects of the deceased two promissory notes issued separately by each of the defendants were recovered. The sum stated in the promissory note issued by the 1st defendant is RM2.9 million and the sum stated in the promissory note issued by the 2nd defendant is Australian $725,000. The 2nd defendant initially denied owing the sum, but upon threats of legal proceeding by the plaintiff, he eventually settled the sum together with interest mentioned in the promissory note. However, the 1st defendant denied the existence of the loan mentioned in the promissory note (the PN). Hence, the present action by the plaintiff.

(3) The PN dated 18 November 1983 was handwritten and signed by the 1st defendant, which reads:

Dear Mummy,

This is to confirm that I have borrowed from you through Yok Ying Realty Sdn Bhd, the sum of $2,900,000 (two million and nine hundred thousand ringgit).

Each month I shall be giving you the sum of $15,000.00 for which I am not claiming tax deductions.

The principal sum is repayable upon request by you.

Signed... (1st defendant).

(see at p. 334 Rekod Rayuan Jilid 2).

[3] Three issues were canvassed before the learned judge, viz. (i) whether there was a loan of RM2.9 million remaining unpaid?, (ii) even if the loan exists and remains unpaid, whether the appointment of the 1st defendant as an executor of the deceased's estate extinguished the debt? and (iii) whether the plaintiff's claim is statute-barred? The learned judge answered all the questions in favour of the plaintiff. However, in this appeal the 1st defendant only proceeded with issue (i).

[4] On issue (i), the learned judge was of the view that the PN was a negotiable instrument. Hence, based on the provision of s. 30 of the Bills of Exchange Act 1949 and the authority in Ong Guan Hua v. Chong, [1963] MLJ 6, he held that consideration for the PN was presumed and it was for the 1st defendant to prove that there was no consideration ever affected on the PN. To rebut the presumption, the 1st defendant deposed that he never received the sum of RM2.9 million as loan from the deceased, although there were occasional small loans given by the deceased to him previously, but of which he had settled in full. To fortify his denial he asserted that in none of the bank statements of the deceased, either here or in Hong Kong and those concerning the accounts of the deceased's personal company in the name of Yoke Ying & Realty Sdn Bhd (Yok Ying), show an amount equal to that of RM2.9 million ever possessed by or disposed of by the deceased or Yok Ying during or around the time when the PN was given in order to show that no such loan was ever given by the deceased. He explained that the deceased inherited 1/10 of the assets of her late father. Amongst the assets were shares in Fung Keong Rubber Manufactory (M) Sdn. Bhd (Fung Keong). Some of the shares were registered in her personal name and others in Yok