K. RAMA SWAMY, J.

( 1 ) THE defendants are the appellants. Respondents 1, 2 and 3, 4 and 5 being the legal representatives of the second respondent who died subsequently, laid the suit on the foot of the promissory note, Ex. A-9 dated april 15, 1971, executed by the first appellant in favour of the first respondent and the second appellant stood as surety, for a sum of Rs. 50,000/ -. The trial court decreed the suit. Thus, the apeal

( 2 ) THE first respondent-first plaintiff is a partnership firm consisting of 2nd and 3rd respondents. Earlier, the second respondent and her mother, begum Lulu Hasan Nawaz Jung were partners. Their present case is that the first appellant borrowed a sum of Rs. 50,00/- from Bsgum Lulu Hasan nawaz Jung, for short, "the promisee" under Exs. A-5 and A-6 in the year 1968 in sums of Rs. 30,000/- and Rs. 20,000/- respectively and the second appellant endorsed two cheques, Exs. A-7 and A8, which bore initially the date April 1, 1968 but later corrected as July 1, 1968, as collateral security. Before expiry, when demanded, the first appellant executed Ex. A-9 suit promissory note dated April 15, 1971, in renewal of the promissory notes ex. AS and A6 and despite promising to pay, he did not pay. Hence the suit.

( 3 ) THE defence of the appellants is that the first appellant did not borrow any amount from promisee. He was introduced by the second appellant to one Abdullah Rowji, the husband of the second respondent,who was now admitted to be looking after the business of the first respondant-firm. The said Abdullah Rowji lent a sum of Rs. 50,000/- He executed Ex. A-30 in favour of the first respondent and for recovery thereof, O. S. No. 130/72 was laid and on admission, it was decreed. Since late Abdullah Rowji was involved in money-lending business with black money he requested the appellant to execute blank promissory notes. He accommodated him by signing several blank papers for the purpose of- income-tax. He denied the execution of the promissory note under Ex. A-9 and receipt of consideration and also denied the execution of any promissory note in favour of the promisee. He denied Ex. A-9, a renewal of Exs. A-5 and A-6. Yet, the Court below accepted the plea of the respondents and held that the first appellant had executed Ex. A-9, it is a renewal of Exs. A-5 and A-6 ; consideration was paid thereunder ; the second appellant stood as a surety and accordingly decreed the suit.

( 4 ) THE facts proved at the trial are that Ex A-9 is a promissory note signed by the first appellant ; and the recital that cash consideration of Rs. 50,000/- was paid thereunder is not the case set up. In the plaint it is the case that Ex. A-9 is a renewal of Exs. A5 and A6 of 1968 and that Exs. A7 and a8, cheques, which were initially dated as April 1, 1968 but later corrected as July 1, 1968 and signed for Key and Key Enterprises Private Ltd. , by the second appellant as its Director and were issued as collateral security. Subsequently they were renewed on April 15, 1971, under the suit promissory note Ex. A-9. Or the same date, Ex. A-30, another promissory note also was executed for another sum of Rs. 50,000/-, the subject matter of the suit, O. S. 130/72, the execution of which was admitted and the suit decreed. No suit notice was issued before filing the suit on the last day of limitation. Thus, it is the respondents case that the original debt incurred by the first appellant having borrowed from promisee under Exs. A-5 and A-6 in 1968 is the consideration for Ex. A-9 as renewal thereof, to which the second appellant stood surety. The first question, therefore, is whether the decree is valid. Under sec. 4 of the Negotiable Instruments Act (Act 26 of 1881), for short, "the act", the promissory note is defined as "an instrument in writing containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of a certain person or to the bearer of the instrument. " Under Section 13 (1) "negotiable instrument" means, "promissory note payable either to order or to the bearer. " Ex. A-9 is a negotiable instrument, the execution of which, unless admitted, is to be proved. In this case, the first appellant, as D. W. 2, only admitted his signature on ex. A-9. But, in view of the admitted fact that no cash consideration was paid under Ex. A-9 (though recited therein "of payment of cash consideration ) and it is only a renewal of Exs A5 and A-6. The question at issue is whether the first respondent can lay the suit on the foot of Ex. A-9.

( 5 ) UNDER Sec. 43 of the Act, a negotiable instrument made, drawn, accepted, indorsed or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction. Since it is admitted that no cash consideration, as professed on the face of the instrument Ex. A-9, was paid by the first respondent, though it is a holder under Sec. 8, by operation of Section 43 of the Act, it fastens no obligation on the maker, the 1st appellant, to pay the debt to the first respondent. The contract is void under Sec. 25 of the Contract Act and the case cannot be brought within exception 3 to Sec. 25 thereof. In Amir Chand vs. Krishna Chandra 1 the finding was that no consideration has been paid under the promissory note. So it was held that the negotiable instrument does not create any obligation between the plaintiff and the defendant. The ratio therein squarely applies to the facts of this case. The first respondent is neither a holder in due course under Sec. 9 nor transferee for consider a- tion of Ex. A-5 and A-6. Therefore, it acquired no title to the debt under exs. A-5 and A-6 and so no consideration has been passed under Ex A-9 and cannot sue upon the instrument, Ex. A-9. The consideration under Ex. A-5 and A-6 had flown from the personal money of Begum Lulu Hasan Nawaz jung who died in January 1970, and the suit instrument Ex. A-9 was executed on April 15,1971. During her life time, Exs. A-5 and A-6 were not endorsed either in favour of the first respondent-firm or in favour of her daughter, the 2nd respondent. So the second respondent is also neither a holder in due course nor transferee for consideration of Exs. A-5 and A-6 and no title thereunder did pass on to her. Now, she claims to recover the debt as beneficial owner of them as a heir of her mother or as legatee under oral will bequeathed in her favour. This contention is beset with several insurmountable difficulties. Beneficial ownership does not create legal title to the property in negotiable instruments Exs. A-5 and A-6 and a declaration that she is the beneficial owner does not operate as transfer of the right in exs. A-5 and A-6 except as holder in due course or endorsee for consideration or by operation of law. As already held that she is neither a holder in due course nor transferee for consideration. Though Sec. 135 of the transfer of Property Act does not apply to negotiable instruments, she acquired no title to Exs. A-5 and A-6 by operation of law. On the demise of promisee, the debt under Exs. A-5 and A-6 became unenforceable. It is an admitted case and fairly conceded by Smt. Faizunnisa Begum, learned counsel for the respondents, that the deceased promisee left behind her several heirs, including the second respondent. One of the heirs alone can not maintain a suit on the instrument in her own name as heir. No such plea was raised in the plaint. None of the heirs were impleaded Moreovar, she did not obtain any succession certificate to recover the debt under Exs. A-5 and A-6. The suit instrument was executed in favour of the first respondent. So, she is not the holder of Ex. A-9. Ex. A-9 cannot be treated to be a renewal of exs. A-5 and A-6. The suit is not based on the original instruments, Exs. A-5 and A-6, which are barred by limitation on the date of the suit. Ex. A-9 on its face, is not a renewal so as to be an acknowledgment in writing signed by the maker saving limitation under Sec. 18 of the Limitation Act, 1963. Even otherwise, as beneficial owner as partner, she does not become a holder of the instrument Ex. A-9 as it was not indorsed in her favour. Though these points were neither pleaded in the written statement nor argued by Sri B. V. Subbaiah, learned counsel for the appellants, since these are pure questions of law on admitted facts, I called upon the learned counsel for the respondents to answer them, given time to this day and she. argued at great length. The plea that her mother bequeathed by oral will, Exs. A-5 and A-6 is not accepted by the lower Court for valid reasons. I am not pursuaded to differ from those reasons.

( 6 ) NO doubt, in the plaint it is stated that Exs. A-5 and A-6 Were bequeathed to the second respondent. But no plea of oral will was taken. At the trial, this plea was raised and evidence was adduced in that regard. The trial Court did not believe that evidence and held that the alleged oral will had not been proved, Though, Smt. Faizunnisa Begum has pressed home very hard to impress upon me that the oral will had been proved. I have carefully scanned the evidence of the witnesses, P. Ws 1 and 3 to see whether it establishes that the promisee has bequeathed orally Exs. A-5 and a-6 to the second respondent. The evidence being of interested witnesses and there being no unimpeachable evidence to accept unhesitatingly regarding the oral will, more particularly when the promisee left behind her several heirs, it is highly unsafe to accept this interested evidence. It would appear from a reading of the plaint, that the first respondent being a registered partnership of which respondents 2 and 3 are the partners and the promissory note having been executed in favour of the first respondent, impleaded all the partners and laid the suit on that basis. As seen, once the firm did not pay the consideration under Ex. A-9, then the partners too in their capacity as partners of the first respondent- firm, cannot lay the suit. The contention of Smt. Faizunnisa Begum is that since the promisee being a partner of the first respondent paid the consideration under Exs. A-5 and A-6 to the first appellant, the first respondent firm is entitled to lay the suit. I am unable to agree. It is true that late Begum Lulu Hasan Nawaz Jung was a partner of the first respondent-firm. But the cansideration under Ex. A-5 and A-6, as already held did not pass from the partnership firm. It is admitted that the consideration said to have been paid under Exs. A-5 and A-6 is personal cash of promisee nor were they endorsed it favour of the firm. Therefore, it cannot partake the character of the asset of the partnership firm but continued to be the personal property of the promisee. Therefore, the renewal of debt under Exs. A-5 aud A-6 cannot be treated to be consideration for Ex. A-9.

( 7 ) IT is the case of the respondents that Exs. A-5 and A-6 were executed simultaneously on the same day, but no date has been put thereon. If really consideration has been passed for a sum of Rs. 50,000/- on the same day, it is not explained why two promissory notes came to be executed simultaneously, one for Rs. 30,000/- and the other for Rs. 20,000/- when, in fact, one promissory note should have been sufficient. It is now seen that the promissory notes do not bear any date at all. If the promissory notes were to be genuine and were really executed as professed to be, they would have carried with them the date on which they were executed. It was not done. Exs. A-7 and A-8 were sought to be pressed into service as collateral security to Exs. A-5 and A-6 and were stated to have been executed simultaneously by the second defendant. As D. W. 1. , the 2nd appellant has stated that he went on giving several cheques and had accommodated the firm and he also issued the blank cheques. If really Exs. A-7 and A-8 were executed on the same day when Exs. A-5 and A-6 were contemporaneously executed, then we could have found the same corrected date as July 1, 1968 iu Exs. A-5 and a-6" also.-There is no date mentioned. On the other hand, Exs. A-7 and A-8 originally, as seen, the date was April 1, 1968. It was later struck off to july 1, 1968. The reason thereof was not explained. They were never presented for encashment. Therefare, Exs. A-7 and A-8 cannot be pressed into service. The actual date when Exs. A-5 and A-6 were executed has not been established. The promisee is admittedly an income tax assessee Her return for 1968 would have shown the actual date of lending to the first appellant. It was deliberately withheld. Therefore, we do not know the actual date on which they were executed. This clearly lends support to the claim of the appellants that these documents were executed only as accommodating documents far the purpose of income-tax of Abdullah Rowji, who was looking after the first respondent partnership-firm. No interest is charged under Exs. A-5, A-6 and A-9. It is clear from the evidence that the maker is a stranger to the promisee and she as well as the firm lent money in regular course to several persons on the foot of promissory notes. No reasons are given why interest is not charged.

( 8 ) IN Venkata Satyanarayana vs. Subbaiah 2 relied no by Sri Subbaiah, a Division Bench of this Court has held that so far as the promissory note payable to the order of a certain person is concerned, the person entitled in his own name to the possession thereof is either the bearer or endorser. In this case, the first planitiff is not the person entitled to sue in its own name as bearer but is sought to be recovered as a debt. The Court has held that the Act is not concerned with the persons who may be beneficially interested in the amount due on a negotiable instrument. In that case, the plea was that the discharge was made in favour of one of the members of the joint family. Therefore, there is no liability. While rejecting that contention, it was held thus :"now, therefore, although the secon defendant is a member of the Hindu joint family along with the first defendant and the promissory note made in favour of the latter is really for the benefit of the family, it cannot be said that the family is the holder within the meaning of the definition. "the priniciple underlying this ratio is that it is the holder that is entitled but not the persons who are beneficially entitled to the benefit under the instrument. The same ratio applies to the facts in this case also.

( 9 ) IN Indarsingh vs. Ramnarayan 3 relied on by Smt. Faizunnisa Begum, the facts are : the first plaintiff is the husband. The second plaintiff is the wife. The first plaintiff has lent the money in the name of his wife, the second plaintiff and then the suit was laid for the recovery of the amount by both the plaintiffs. It was contended that the second plaintiff is only a benamidar for the first plaintiff and, therefore, the suit was maintainable. The husband is an employee prohibited to do business and so the suit is void under Sec. 23 of the Contract Act. In that context, it was held that the holder of the promissory note was alone competent to sue and that since the plaintiff No. 2 was holder, the suit was maintainable. The first plaintiff had lent the money and merely because the second plaintiff stood as a benatmidar, the contract is not void under Sec. 23 of the Contract Act, and, therefore the suit was held maintainable. This case does not help the respondents. The ratio in Ghanashyam vs. Ranganath Swamy 4 is not applicable to the facts in this case. In that case, the suit promissory note was executed in favour of the joint family and at the partition, the promissory note was assigned to one of the co-parceners and that co-parcener laid the suit for recovery of the debt. It was contended that since the promissory note was not endorsed or assigned in favour of the plaintiff, the suit was not maintainable. In that context, it was held since the debt is a joint family debt and at partition, the plaintiff acquired right, title and interest in the promissory note debt, the suit was maintainable. Under those circumstances, the suit was decreed. The ratio therein is inapplicable to the facts in this case because the concept of joint family debt does not apply to the Muslim personal law. As already said, there is no assignment of the debt by the deceased promises in favour of the second respondent and it is not even the basis on which the suit was laid.

( 10 ) THESE points are sufficient for the disposal of the appeal. But, however, since the parties have argued the matter on merits regarding executing and passing of consideration under Ex. A-9, I would also consider and deal with them. It is the case of the appellants that only Ex. A-30 dated april 15, 1971 is the promissory note which he executed in favour of the first respondent-firm and the amount was already recovered in O. S. 130/72 and he did not execute any other promissory note and he pleaded that ha signed several blank papers, including promissory notes, for the purpose of incometax to accommodate Abdullah Rowji, the husband of the second respondent who was looking after the firm s business. From the evidence it would appear that the first appellant was introduced by the second appellant to abdullah Rowji and then there are series of transactions mutually. The first appellant and the second appellant were partners in a business jointly run by them in addition to the personal business of the second appellant, viz. , key and Key Enterprises,as found under Exs. A? and A-8. Thesre are also a number of transactions under which the payments are being made. It is not known-who scribed Exs. AS; A6 and A9 even. Only the attestors of exs. A5 and A6, who js P. W. 2 and that of Ex. A-9 who is P. W. 5 have been examined. P. W. 1 is the seeond respondent herself. She deposed to the execution of Exs. A5 and A6. She is not an attesting witness. But there is no recorded evidence or entry to show that her mother paid the amount of rs. 50,000/- to the first appellant, The return for 1968 was not produced. It is the best evidence. P. W. 2 admitted that he was not present at the time when Exs. A5 and A-6 were executed. . They were already filled up by the time he came and then he merely attested them He did not in - his chiefexamination, state that any consideration has been paid thereunder. But when was cross-examined, he came forward with an explanation that he has seen the payment of the consideration under Exs. A-5 and A-6. When it is not his case in the chief-examination that he has seen the passing of the r_420:"-:; : -;-/;- ;.-V. . ". . . . consideration under Exs. A-5 and A-6, it is difficult to give weight when he says in cross-examination that he saw the consideration being paid. Therefore, it is not safe to accept his evidence. It is admitted that he is the servant of the promisee. No doubt, P. W. 1 nas stated that she was present at the time when Exs. A-5 and A-6 were executed and consideration was paid. But she being an interested witness it is difficult to accept her evidence on its face value. It is now admitted that P. W. 1 and her mother are income-tax assessees and during the relevant year 1968, the income-tax return was filed. But no copies of the returns have been produced in the Court as corroborate unimpeachable evidence to show that consideration was in fact paid As already stated, the seribe of the documents has not been examined, It is not even mentioned as to who the scribe of the document is. As seen, the suit is not based on the promissory notes, Exs. A-5 and A-6. It is only now stated that the consideration for Ex. A-9 is the debts under the promissory notes exs. A-5 and A-6.

( 11 ) THE contention is that Exs. A-5 and A-6 were executed simultaneously with a host of other documents like Ex. A-7 and A-8 cheques by the surety, 2nd appellant. The latter bear dates though corrected from April 1, 1968 to July 1,1968, conspicuously no date on Exs. A-5 and A6 was put. The effect of omission was already discussed. Omission to mention the dates on the instruments per se does not invalidate the instruments. But it excites suspicion and gets shrouded with doubtful circumstances regarding not merely of date of execution but also the very authenticity of execution are brought on record. Limitation to lay an action on a negotiable instrument is three years; under Articles 19 and 21 of the Limitation Act, 1963 from the date the loan is made and under Art. 35 from the date of the bill, etc. Theiefore, specification of a date on a negotiable instrument is an essential one. When alleged collateral securities, Exs. A-7 and A8 do bear even the corrected date, i. e. , July 1, 1968, when the date thereon was corrected,. the omission to write even the date on Exs. A-5 and A-6 and receipts", tells heavily against the authenticity and remains inexplicable. It stands to no reason. If really all i. e. , Exs. A-5 to A-8 came into existence at one time, it is expected that Exs. A-S and A-6 also do bear the corrected date i. e. , July 1, 1968. It would mean that Exs. A-5 and A-6 either were not executed at the time when Exs. A7 and A8 were executed or that Exs. A5 and A6 were subsequently brought out and to lend corroboration Exs A7 and A8 were pressed into service. So to remove that doubt, the examination of the scribe of Exs. A5 and A6 assumes importance, to establish the date of execution of Exs. A-5 and A-6 and passing consideration thereunder. He is not only not examined but his identity is kept in dark. It is not the case that they are in the handwriting of the maker, a graduate. The assestor admits that he is an employee of the respondents and did not see the writing. Therefore, it is not safe to act on the interested testimony,

( 12 ) UNDER these circumstances, the presumption under Section 118 of the Act does not apply the instruments. Exs. A-5 and A-6. I bold that as a fact the respondents failed to establish that consideration was in fact passed under Exs. A-5 and A-6. Since they have had the documentary evidence, namely, the income-tax returns, which would have shown the amount being paid to the first appellant and since they withheld the same from production before the Court, an adverse inference has to be drawn under Sec. 114 (g) of the Evidence Act and if those returns were produced they would have belied the respondents case unfavourable to them. In kundan Lal vs Custodian, Evacuee Property 5, Subba Rao, J. (as he then was) held that the presumption is one of law and thereunder the Court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration. In effect, it throws the burden to prove the failure of consideration on the maker of the note or the endorser, as the case may be. In that case, it was held that siace the records were not produced and the relevant evidence was withheld by the plaintiffs, the Court is enjoined under Sec. 114 (g) of the Indian Evidence Act to draw the presumption to the effect that if produced the document would be unfavourable to the plaintiff. This presumpt on, if raised by a Court. can under certain circumstances rebut the presumption of law raised under Sec. 118 of the Act. In a recent judgment of this Court reported in G. Vasu vs. Syed Yaseen 6, my learned brother, Jagannadha Rao, J speaking for the Full Bench has considered the entire gamut of the controversy and it is held that the words "until the contrary is proved" under Sec. 118 of the Act do not mean that the defendant must necessarily show that the document is not supported by any form of consideration but the defendant has the option to ask the Court to consider the non-exsistence so probable that a prudent man ought, in the circumstances of the case, to act upon the supposition that the consideration did not exist. Though the evidential burden is initially placed upon the defendant by virtue of Section 118, it can be rebutted by the defendant by showing the preponderance of probabilities that such consideration as stated in the pronote or in the suit notice or in the plaint does not exist and once a presumption is so rebutted, the said presumption disappears . As stated earlier, in this case, the case set up under Ex. A-9 is that cash consideration has been paid. But that has been given up by them in their pleadings and evidence. Therefore, the presumption under Sec. 118 of the Act does not apply. It is seen that P. W. 1 admitted that she was not present at the time when Ex. A-9 was executed. On the other hand, it is her definite case that she had asked her manager to keep the document executed by the defendant and she left for Bombay and the manager has not been examined. As stated above, the scribe of the document Ex. A-9 has not been examined. The evidence of P. W. 5, who was initially an employee of the firm and subsequently became the son-in-law of the second respondent cannot be accepted he being an interested witness. The firm of the first respondent is also an income-tax assessee and all the transactions, including the suit transactions, must have been entered in the accounts. But those returns have not been produced. No doubt, in Ex. A-11, the letter has been addressed by the first 6. AIR 1987 A p, 139 (FB> -19*7 (1) ALT 1 FB, appellant enclosing Exs. A-12 to A-21, share certificates, for crediting to the liability owned to the first respondent-firm. It is the case of the respondents that the appellants owned one lakh of rupees under Exs. A- 30 and A-5 and a-6 and the first appellant has given those shares for crediting to the account under Exs. A-5 and A-6. But, as seen, Ex. A-11 was addressed to the first respondent and there is no express mention that there is any debt due and payable to Begum Lulu Hasan Nawaz Jung and that there is no categorical admission that it was towards the discharge of the deot under Exs A-5 and a-6, 8s evidenced under Ex. A-9. Therefore, Ex. A-ll cannot be pressed into service.

( 13 ) IT is next contended that Exs. A-26 and A-27 and the endorsements on Exs- A-7 and A-8, the contemporaneous documents, also mention the renewals of April 15, 1971. They clearly show that they are two independent transactions under Exs. A-30 and A-9. Therefore, they are two transactions for which the first appellant is liable to pay as principal debtor and the second appellant as surety, As I have already said, there is no proof of payment of consideration under Exs. A-5 and. A-6. As seen, though the payment of cash consideration under Ex. A-9 has been expressly mentioned, but was given up and a different case has been set up, namely, cash consideration paid under Exs. A-5 and A-6 is the consideration for ex. A-9 and its effect and tenability were already discussed and negatived. The seriesof documents referred to hereinbefore are of little assistance to the respondents. Thus considered, I have no hesitation to hold that the respondents have not proved that consideration has been passed under Exs. A-5 and a-6 or Ex. A-9.

( 14 ) ON admission or proof of execution of a negotiable instrument, Section 118 of the Act draws a statutory presumption that consideration was passed thereunder and places onus on the maker. The Act was made at a time when moral values were high in the society. Lai sezfaire has its roost and lending does not then appear to be a profession or means of living. But with the passage of time, moral standards eclipsed to its ebb ; lending has beccme a profession and means to an end. Several subterfuges are being adopted. The economic necessity drives the needy and indigent to approach the lender to lend money and the promisee is taking undue advantage thereof. Statutory presumption thus deprives the needy and the indigent of the normal proof by the promisee of fact of an issue in the normal course and feeds injustice. Art. 14 read with Article 39-A of the Constitution assures fundamental right to equality of justice, and Art. 21 assures right to life and fair procedure but the statutory presumption denies to them of that equality and obviates the promisee normal burden of proof of passing of consideration and aids unfair advantage. Law is an instrument of social change to fulfil the needs and aspirations of the society upon which it operates. It is high time to reconsider and, if necessary, to delete the statutory presumption under Sec. 118 or to recast its efficacy so as to afford equal right to justice to the needy and indigent. The case on hand is a stark reality for the above need.

( 15 ) ACCORDINGLY, I hold that the respondents have not proved either the execution of Exs. A-5, A-6 and A-9 or passing of consideration The liability of the appellants under Ex. A-9 is pot established. Accordingly the appeal is allowed, the decree of the trial Court is set aside and the suit is dismissed. But in view of the peculiar facts and circumstances of the case, each party is directed to bear its/his own costs.