Anil Kshetarpal, J.

1. The appellant is the plaintiff in a suit for recovery of Rs.88,075/- filed on the basis of a pronote and receipt dated 04.01.2003. As per the case of the plaintiff, late Sh. Maan Singh (the defendant’s father) borrowed a sum of 65,000/- from the plaintiff and executed a pronote and receipt in the Rs. presence of the witnesses. The defendant contested the suit while asserting that he is the adopted son of late Sh. Maan Singh. Sh. Maan Singh who never executed any pronote or receipt while borrowing any money from the plaintiff.

2. In order to prove the execution of the pronote by late Sh.Mann Singh, the plaintiff examined the following witnesses:-

1. PW.1 Baru Ram, plaintiff himself;

2. PW.2 Shishpal, witness of the pronote and receipt.

3. PW.3 Sandeep, son of Baru Ram.

3. The defendant, in order to prove his case, examined Dheeraj Jain, Ahlmad of the Court, the defendant-Rajinder, himself, appeared as DW.2, DW.3-Dharampal, Clerk, Government School, Pabra and DW.4 Amar Singh, Retired Headmaster of the School.

4. Both the Courts below dismissed the suit on the following grounds:-

I) Late Sh. Mann Singh is stated to have studied in a school from 1952 to 1956 and therefore, he, being a literate, could not have thumb marked the pronote.

II) No Fingerprint and Handwriting Expert has been examined to prove that thumb impression belongs to late Sh.Mann Singh.

III) Baru Ram (the appellant) has failed to prove that he had resources to pay the amount.

5. Heard the learned counsel representing the parties, at length and with their able assistance, perused the paper-book and the record, which was requisitioned.

6. It is evident from the reading of the judgments, passed by both the Courts below, that the provisions of Section 118 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the 1881 Act”) has been overlooked. Section 118 of the 1881 Act provides for various statutory presumptions with regard to a pronote. As per Section 4 in Chapter-II of the 1881 Act, the pronote is a negotiable instrument. Section 4 and 118 of the 1881Act are extracted as under:-

“4. “Promissory note.” — A “Promissory note” is an instrument in writing (not being a bank - note or a currency note) 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.

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118. Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made:

(a) of consideration: — that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

(b) as to date:—that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance:—that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer:—that every transfer of a negotiable instrument was made before its naturity;

(e) as to order of indorsements:—that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on;

(f) as to stamp:—that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course:—that the holder of a negotiable instrument is a holder in due course : provided that, where the instrutment has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him”.

7. On a careful reading of Section 118 of the 1881 Act, it is evident that a reverse onus has been placed on the person, who claims that the negotiable instrument is neither executed for consideration nor it was executed on the date on which it is stated to have been executed.

8. On a careful reading of the judgments, passed by both the Courts below, it is evident that the Courts have also overlooked Ex.PX, Ex.PY and Ex.PZ, respectively, the documents produced by the plaintiff to prove that late Sh. Mann Singh, while drawing pension, used to affix his thumb marks on the note-book maintained for distributing the pension. Further, the First Appellate Court has also erred while observing that Baru Ram has failed to prove his capacity to extend the loan. In the present case, the total loan alleged is of Rs.65,000/-. Both the persons are the residents of the same village. It is not expected from a villager to maintain proper accounts. There is no evidence that Baru Ram was having income in excess of the amount required for the payment of income-tax in the relevant year.

9. Both the courts below have further erred in laying much stress on the fact that no Fingerprint and Handwriting Expert has been examined. Such an Expert can only render his opinion. Such opinion is not binding on the Court. The opinion of an Expert cannot be preferred in place of the direct evidence i.e. deposition of a witness of the document.

10. Furthermore, the pronote and the receipt have been produced. It is evident that late Sh.Mann Singh is alleged to have thumb marked on the revenue stamps affixed on the pronote and receipt.

11. Moreover, before a decree for recovery is passed, the Court is required to record a finding to the effect that the defendant has inherited some property from late Sh. Mann Singh. Such aspect has also not been examined by the Courts below.

12. Keeping in view the aforesaid facts, this Court is of the considered view that the matter is required to be remitted back to the trial Court for deciding it afresh, after granting additional opportunity to the respective parties to lead further evidence, if required. Hence, the present appeal is allowed. The judgments and decree, passed by both the Courts below, are set aside for the reasons noted above. The parties, through their respective counsels, are directed to appear before the trial Court on 28.03.2022.

13. The miscellaneous application(s) pending, if any, shall stand disposed of.