Holding

When a promissory note is proved to be executed, the defendant bears the initial burden to prove the non‑existence of consideration; failure to do so entitles the plaintiff to the benefit of the presumption under Section 118(a) and a decree in his favour.

Summary

The appellant, who had lent money to the respondent firm, sued for recovery of amounts due under two promissory notes executed by the managing partner of the firm. The trial court decreed the suit in part, granting relief for one note but refusing relief for the second on the ground that it was not supported by consideration. The respondents denied execution of the notes and alleged forgery, but the lower courts found the notes were duly executed. The key issue was whether, under Section 118(a) of the Negotiable Instruments Act, the appellant was entitled to the statutory presumption that the notes were made for consideration, given that the respondents failed to prove the absence of consideration. The Supreme Court held that once execution is proved, the burden to disprove consideration lies on the defendant, and the respondents had not discharged this burden. Consequently, the appellant was entitled to the benefit of the presumption and the suit was decreed in its entirety. The appeal was allowed, modifying the lower courts' judgments.

Issues considered

Whether the presumption under Section 118(a) of the Negotiable Instruments Act applies when the execution of a promissory note is proved and the defendant fails to prove the non‑existence of consideration.
Whether the appellant is entitled to a decree for the second promissory note despite evidence allegedly inconsistent with the presumption.

Legislation cited

Negotiable Instruments Act, 1881s. 118(a)

Subjects

Negotiable Instruments ActSection 118presumption of considerationpromissory noteburden of proofcivil appealdecree

Judgment

[2008] 8 S.C.R. 1210 M4~

'
_._
A MALLAVARAPU KASIVISWESWARA RAO
v.
THADIKONDA RAMULU FIRM AND ORS.
(Civil Appeal No.5597 of 2001)
•
I
MAY 16, 2008
B
(TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.)
..
Negotiable Instruments Act, 1881 - s. 118(a) - Presump-
tion as to consideration - Benefit of - Entitlement to - Appel-
c /ant borrowing money and lending to respondent firm - Ex-
ecution of promissory note by respondent - Suit for recovery
of amount due under two pronotes - Suit decreed with regard
to one pronote - Upheld by High Court - On appeal, Held:
Execution of pronote was proved and respondent failed to dis-
D
charge the initial burden of proving non-existence of consid- ..
eration either by direct evidence or by preponderance of prob-
abilities - Thus, appellant entitled to the benefit of presump-
tion u/s 118(a)- High Court not justified in not decreeing the
suit of appellant since evidence by appellant inconsistent with
such presumption - Thus, suit to be decreed in entirety.
E
Respondent no. 1 is a firm. It belongs to respondent
no. 2 who is the managing partner and his sons' viz. re-
spondent no. 3 and 4. It was appellant's case that he bor- 'i-
rowed certain amounts from P and lent the same to the \r I
F respondent firm. The respondent no.2 executed pronotes
for the sum of Rs.4,72,000/- and Rs.2,15,000/- in favour of
the appellant. However, the respondents did not pay the
amount. Appellant filed suit for recovery of amounts due
under pronotes of Rs.4,72,000/- and Rs.2,15,000/- against

. .
respondents. Respondent no. 2 denied execution of ~
G
pronote in favour of appellant and that the pronotes were
forged ones. The trial court partly decreed the suit for a
sum of Rs.2,33,125 with interest@ 18% from date of suit
till realization with regard to first pronote. However, it held
H 1210
MALLAVARAPU KASIVISWESWARA RAO v. 1211
THADIKONDA RAMULU FIRM

that the appellant was not entitled to recover amount un- A
der the other. pronote because it was not supported by
consideration. High Court upheld the order. Hence the
present appeal.
The question which arose for consideration in this
appeal was whether in the absence of any rebuttal by the B
respondents to the fact that the promissory note was for
consideration as required, which gave rise to the pre-
sumption u/s 118 of the Negotiable Instruments Act, 1881
the courts below were justified in holding that decree
could not be passed on the basis of such presumption C
since the appellant had given evidence inconsistent with
such presumption.
Allowing the appeal, the Court
HELD: 1.1. Section 118 of the Negotiable Instruments D
Act, 1881 deals with presumptions as to negotiable instru-
ments. Under Section 11 B(a) of the Act, the court is obliged
to presume, until the contrary is proved, that the promis-
sory note was made for consideration. That the initial
burden in this regard lies on the defendant to prove the E
non-existence of consideration by bringing on record
such facts and circumstances which would lead the Court
to believe the non-existence of the consideration either
by direct evidence or by preponderance of probabilities
showing that the existence of consideration was improb- F
able, doubtful or illegal. If the defendant is proved to have
discharged the initial onus of proof showing that the ex-
istence of consideration was improbable or doubtful or
the same was illegal, the onus would shift to the plaintiff
who would be obliged to prove it as a matter of fact and G
upon its failure to prove would disentitle him to the grant
of relief on the basis of the negotiable instrument. If the
defendant fails to discharge the initial onus of proof by
showing the non-existence of the consideration, the plain-
tiff would invariably be held entitled to the benefit of pre- H
•
1212 SUPREME COURT REPORTS [2008] 8 S.C.R.

A surnption arising under Section 118(a) in his favour. [Paras ...
11, 12 and 13] [1219-A,8,C,D, 1220-F,G, 1221-A]
2.1 The submission of the respondent that they had
denied the very execution of the pronotes and referred
the same as forged both in the reply notice as also in the
B written statement cannot be accepted. It was a finding of
the trial court, which was affirmed by the High Court in ....
the impugned judgment that the pronotes were indeed
executed by the respondents. It was also a finding of the '
High Court that except in the reply notice issued by the r
c respondents, nowhere had they stated that the consider-
ation had not passed. It is also an admitted position that
the findings of the two courts below was that the execu-
tion of the pronotes having been proved, the presump-
tion under Section 118(a) must come into play and the
D appellant must be entitled to a decree in the absence of
evidence to the contrary. The High Court observed that if
there was evidence inconsistent with the presumption u/
s 11 S(a) of the Act, the court would .not be in a position to
pass a decree in favour of the appellant on the basis of /-
E the presumption and therefore, proceeded to examine the
evidence of the appellant in extenso. [Para 15] [1221-C-G]
.2.2 Since. the initial burden on the respondents to
""'
1•;,
1~
show that the -pronote being Ex.A-21 was not supported
'.-
by any consideration was not discharged by them, the
F High Court was not justified in not decreeing the suit of
the appellant in respect of the amount covered by the pro-
note Ex.A-21. It is an admitted position that the finding as
to the execution of the pronotes had become finat Also,
the respondents had not discharged the initial burden of
G proving the non-existence of consideration either by di-
rect evidence or by preponderance of probabilities. The
mere denial, if there be any, by the respondents that no
consideration had passed would not have b~E)n Sl!fficient
and something probable had to be brought on ·record to
H
MALLAVARAPU KASIVISWESWARA RAO v. 1213
THADIKONDA RAMULU FIRM [TARUN CHATIERJEE,J.]
.... prove the non-existence of consideration. Therefore, once A
the execution of the pronote has been proved, the appel-
lant would be entitled to the benefit of the presumption u/
s 118(a) of the Act because the respondents had failed to
discharge the initial burden and therefore, the High Court
was in error in appreciating the evidence of the appellant B
to come to the c.onclusion that since such evidence was
... inconsistent with the pronote being Ex.A-21, the appel-
lant could not be given the benefit of the presumption.
Thus, the judgments of the courts below are modified to
the extent that the suit of the appellant must stand de- c
creed in its entirety. [Paras 15 and 16] [1222-A-F]
Bharat Barrel & Drum Company Vs. Amin Chand
Payrelal (1999) 3 sec 35 - relied on.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5597
D
of 2001
From the final Order dated 30. 7.1999 of the High Court of
Judicature, Andhra Pradesh at Hyderabad in A.S. No. 721 of
1992 .
Anjani Aiyagari for the Appellant. E

U.A. Rana and Abhishek K. Rao (for M.s. Gagrat & Co.)
for the Respondents.
The Judgment of the Court was delivered by
F
TARUN CHATTERJEE,J. 1. This appeal is directed
against the final judgment and order dated 3oth of July, 1999
passed by a Division Bench of the High Court of Judicature of
Andhra Pradesh at Hyderabad in AS No. 721/92 whereby the
High Court had affirmed the judgment and decree dated 5th of G
August, 1991 in OS No. 33/87 of the 1st Court of the Additional
Subordinate Judge, Kakinada, E.G. District, Andhra Pradesh
decreeing the s.uit filed by the appellant in part for a sum of Rs.
2,33, 1251-with interest@ 18% from the date of the suit till real-
ization.
H
A
1214 SUPREME COURT REPORTS [2008] 8 S.C.R.

2. The facts leading to the filing of this appeal as emerg- ...
•
ing from the case made out by the appellant in the plaint are as
under.
The appellant is the son-in-law of respondent no.2. The
respondent nos. 3 and 4 are the sons of respondent no. 2 while
B respondent no. 1 is the firm belonging to respondent nos. 2 to 4
whose managing partner is respondent No.2. The appellant in- ...
troduced one Pynda Ramakumar to the respondents who
agreed to advance monies to the respondents on the under- .
standing that the respondents would repay the amount while
c "'
the appellant woulcl execute pronotes as surety. The appellant
accordingly executed certain pronotes whose consideration was
received by the respondents. As regards repayment, the respon-
dents were sending monies by drafts or otherwise in the name
of one Narayan Murthy, who was the clerk of the appellant, by
D depositing the same in his account. The appellant would with-
draw such amount deposited in the clerk's account by encashing
the Tis or Drafts which was then paid to Pynda Ramakumar
who then got the endorsements signed by the appellant. This
continued for some time but when the respondents failed to re-
E pay the balance amount due to Pynda Ramakumar, he pressur-
ized the appellant for payment of the balance amount due to
him. The appellant made several demands to the respondents
for payment of the amounts due to Pynda Ramakumar but when
the respondents could not pay the amounts, the respondent no.
F 2 as manager of the joint family and. also on behalf of the re-
spondent No. 1 firm executed two pronotes for sums of Rs.
2,15,000/- and Rs. 4,72,000/- being Ex.A-20 and Ex.A-21 re-
spectively and a Khararnama in favour of the appellant whereby
the respondent No. 1 agreed to repay amounts with interest at
Rs. 2.5C ps. and Rs. 1.50 ps. respectively per annum. After ex-
G
ecution of such pronotes, when, despite several demands, the ...
respondents did not pay the amounts, a notice dated 3rd of
October, 1986 was issued to them by the appellant stating that
the pronotes and khararnama were executed by respondent no.
1 in favour of the appellant which may be discharged. The re-
H
MALLAVARAPU KASIVISWESWARA RAO v. 1215
THADIKONDA RAMULU FIRM [TARUN CHATTERJEE,J.]

.. spondents vide letters dated 16th of October, 1986 and 20th of
October, 1986 replied to the notice wherein they did not spe-
A

cifically deny the execution of the pronotes and the Khararnama
but referred to the allegations made in such notice as false and
vague.

3. In the backdrop of the above mentioned facts, in 1987, B
the appellant, therefore, filed O.S. No. 33/1987 in the 1st Court
of the Additional Subordinate Judge, Kakinada for recovery of
the amounts due under the pronotes of Rs. 4,72,000/- and Rs.
2, 15,000/- with interest and costs. The respondent No. 2 con-
tested the suit by filing written statement on his own behalf and c
also on behalf of the respondent No. 1 firm denying any execu-
ti on of the pro notes in favour of the appellant and further stating
that the pronotes were forged by the appellant with the assis-
tance of his brother-in-law and the Clerk. It was further alleged
that the appellant bore a grudge against the respondents and 0
was involved in many criminal cases and since he was not look-
ing after his wife and children properly, the respondents had
opened an account in the name of Narayanmurthy and were
sending monies regularly in that account for the maintenance of
the appellants' family and therefore, it was alleged that no money E
was ever borrowed from the said Pynda Ramakumar, whom
the respondent no.2 did not know, through the appellant for the
respondent No. 1 firm. It was also alleged by the respondent
no. 2 that the respondent no. 1 firm was not carrying on any
~·
business and in fact, all its branches were closed and the re- F
spondent Nos. 2 to 4 were partitioned in the year 1980.

4. The respondent nos. 3 and 4 also filed separate written
statements contending, inter alia, that they had not signed any
pronotes and the scribe of the pronotes in question was the
clerk of the appellant and the Attester was his brother-in-law. G
They also contended that they were not aware of the alleged
borrowing by the respondent no.2 for the respondent no. 1 firm
from the said Pynda Ramakumar or the appellant and in fact,
the pronotes in question did not show that the amounts so bor-
rowed were for the business of the respondent no.1 firm. It was H
~

1216 SUPREME COURT REPORTS [2008] 8 S.C.R.

A further alleged in the written statement filed by the respondent •
•
Nos. 3 and 4 that the pronotes were fabricated on account of
family disputes between the appellant and the respondent No.
2 and that they had no necessity to borrow any amount from
some other person. Infact, Pynda Ramakumar was a friend and
B an associate of the appellant. Even otherwise, the pronotes were
not binding on them as no amounts were borrowed for the ben-
efit of the firm and they were not signatories to the said pro notes. ..
It was further the case of the respondent Nos. 3 and 4 that there
was no joint family because the properties of the respondents k
c were partitioned in the year 1980 and, therefore, the respon-
dent no. 2 had no right or authority to borrow debts for the firm
on their behalf. Accordingly, all the respondents prayed for dis-
missal of the suit filed by the appellant.
5. On the basis of the pleadings of the parties, the follow-
D ing issues were framed by the trial court for consideration: -
a) Vv'hether the two suit pronotes dated 29.0ci.86 and
29. 08. 1986 are true, valid and binding on the
defendants?

E b) Whether the plaintiff is entitled to recover the suit
amount with subsequent interest and costs thereon?
c) Whether the 2nd defendant executed the suit ,,.,

pronotes in the capacity of Manager of the joint
family of the defendants 2 to 4 so as to bind the
F defendants 3 and 4?
d) Whether the defendant No. 2 executed pronotes as
the Managing Partner of D. 1 firm so as to bind its
partners 3 and 4?
G e) To what relief?
6. As noted herein earlier, by the judgment dated 5th of
August, 1991, the 1st Court of the Additional Subordinate Judge,
Kakinada decreed the suit of the appellant in part for a sum of
Rs. 2,33, 125/-with proportionate costs and subsequent inter-
H
I
'

I
MALLAVARAPU KASIVISWESWARA RAO v. 1217
THADIKONDA RAMULU FIRM [TARUN CHATTERJEE,J.]

• est@ 18 % p.a. from the date of suit till realization holding the A
same to be a commercial transaction(Ex.A-20). As regards re-
covery of the amount due under the other pronote Ex.A-21, the
trial court held that the appellant was not entitled to recover the
same because the said pronote was not supported by consid-
eration and accordingly, the rest of the claim of the appellant B
was dismissed with proportionate costs. Feeling aggrieved by
. the said judgment of the trial court, both the appellant and the
respondents filed two appeals before the High Court of Andhra
Pradesh at Hyderabad being A.S. NO. 721/87 and 1872/92
respectively. By the impugned judgment of the High Court dated c
30th of July, 1999, both these appeals were dismissed. The
appellant has filed this special leave petition before us against
the aforesaid judgment of the High court passed in A.S. No.
721/87.
7. We have heard the learned counsel for the parties and D
•
examinecj the judgment of the High Court as well as the trial
Court and other materials on record including the oral and docu-
mentary evidence. The only question that needs to be decided
in this appeal is whether in the absence of any rebuttal by the
respondents to the fact that the promissory note was for con- E
sideration as required, which gave rise to the presumption un-
der Section 118 of the Negotiable Instruments Act, the courts
below were justified in holding that since the appellant had given
evidence inconsistent with such presumption, no decree could
" be passed on the basis of such presumption. F
8. The learned counsel for the appellant contended before
us that the trial court had found that the existence of both the
pronotes was proved by evidence and the materials on record.
The learned counsel for the appellant accordingly contended
that although it was never the defence of the respondents that G
the pronotes were not supported by consideration, neverthe-
less, the trial court had held that since the appellant had failed
to prove that he had borrowed those amounts from Pynda
Ramakumar and lent the same to the respondent firm, the
pronote Ex.A-21 could not be believed. The learned counsel for H
1218 SUPREME COURT REPORTS [2008] 8 S.C.R.

A the appellant, therefore, vehemently argued that the conclusion
reached by the trial court and the High Court to the effect that
...
•
since the evidence adduced by the appellant was inconsistent
with the presumption, in the absence of any evidence by the
respondent to rebut the presumption about the pronote, such
B conclusion was contrary to law. The learned counsel for the ap-
pellant, while elaborating her argument further also contended
before us that once the execution of the pronote Ex.A-21 was .
proved, the presumption under Section 118 of the Negotiable
Instruments Act came into play and after such presumption, the
c initial burden was on the respondents to prove the non-exist-
ence of the consideration by adducing direct evidence or by
preponderance of probabilities showing that the existence of
such consideration was improbable, doubtful or illegal and since
they had failed to discharge such initial burden, the appellant
was entitled to the benefit of the presumption that the pronote
D
was for consideration. In this regard, the learned counsel for the "
appellant strongly relied on a decision of this court in Bharat
Barrel & Drum Company Vs. Amin Chand Payrela/ [(1993) 3
sec 35].
E 9. These submissions of the learned counsel for the ap-
pellant were contested by the learned counsel appearing on
behalf of the respondents. The learned counsel appearing on
behalf of the respondents have contended that the appellant is
not entitled to the benefit of presumption under Section 118 of
F the Negotiable lnstrum,fa'.ts Act and that the impugned judgment •
of the High Court was assed after considering the evidence in
extenso to hold that the pronote Ex. A-21 was not supported by
any consideration. The learned counsel for the respondents fur-
ther submitted that the presumption under Section 118 is rebut-
table and that the respondents had all along denied the execu-
G
tion of the pronotes.
10. Having heard the learned counsel for the parties, we l;_;

are of the view that this appeal deserves to be allowed for the
reasons set out hereinafter.
H
JL
1,....

J'.
MALLAVARAPU KASIVISWESWARA RAO v. 1219
THADIKONDA RAMULU FIRM [TARUN CHATTERJEE,J.]

.. 11. Section 118 of the Negotiable Instruments Act deals A
with presumptions as to negotiable instruments. One of such
presumptions appearing in Section 11 S(a}, with which we would
be concerned in this appeal is reproduced as under:-
"that every negotiable instrument was made or drawn for
consideration, and that every such instrument, when it has been B
accepted, endorsed, negotiated or transferred, was accepted,
endorsed, negotiated or transferred for consideration."
12. Under Section 118(a) of the Negotiable Instruments
Act, the court is obliged to presume, until the contrary is proved, c
that the promissory note was made for consideration. It is also
a settled position that the initial burden in this regard lies on the
defendant to prove the non-existence of consideration by bring-
ing on record such facts and circumstances which would lead
the Court to believe the non-existence of the consideration ei-
0
ther by direct evidence or by preponderance of probabilities
showing that the existence of consideration was improbable,
doubtful or illegal. In this connection, reference may be made
to a decision of this Court in the case of Bharat Barrel & Drum
Manufacturing Company Vs. Amin Chand Payrelal [supra]. In
paragraph 12 of the said decision, this court observed as un- E
der: -
"Upon consideration of various judgments as noted
hereinabove, the position of law which emerges is that
once execution of the promissory note is admitted, the F
presumption under Section 118(a) would arise that it is
supported by a consideration. Such a presumption is
rebuttable. The defendant can prove the non-existence
of a consideration by raising a probable defence. If the
defendant is proved to have discharged the initial onus G
of proof showing that the existence of consideration was
improbable or doubtful or the same was illegal, the onus
would shift to the plaintiff who will be obliged to prove it
as a matter of fact and upon its failure to prove would
disentitle him to the grant of relief on the basis of the H
•
1220 SUPREME COURT REPORTS [2008] 8 S.C.R.

A negotiable instrument. The burden upon the defendant .
of proving the non-existence of the consideration can be
either direct or by bringing on record the preponderance
of probabilities by reference to the circumstances upon
which he relies. In such an event, the plaintiff is entitled
B under law to rely upon all the evidence led ih the case
including that of the plaintiff as well. In case, where the
defendant fails to discharge the initial onus of proof by
showing the non-existence of the consideration, the
plaintiff would invariably be held entitled to the benefit of
c presumption arising under Section 118(a) in his favour.
The court may not insist upon the defendant to disprove
the existence of consideration by leading direct evidence
as the existence of negative evidence is neither possible
nor contemplated and even if led, is to be seen with a
doubt. The bare denial of the passing of the consideration
D
apparently does not appear to be any defence.
Something which is probable has to be brought on record
for getting the benefit of shifting the onus of proving to
the plaintiff. To disprove the presumption, the defendant
has to: bring on record such facts and circumstances
E upon consideration of which the court may either believe
that the consideration did not exist or its non-existence
was so probable that a prudent man would, under the
circumstances of the case, shall act upon the plea that
I
gt
it did not exist ...... " '>
ll j
F '~~;
13. From the above decision of this court, it is pellucid that
if the defendant is proved to have discharged the initial onus of
proof showing that the existence of consideration was improb-
able or doubtful or the same was illegal, the onus would shift to
the plaintiff who would be obliged to prove it as a matter of fact
G
and upon its failure to prove would disentitle him to the grant of
relief on the basis of the negotiable instrument. It is also dis-
. ff
cernible from the above decision that if the defendant fails to ~-~
\".-"'
discharge the initial onus of proof by showing the non-existence
of the consideration, the plaintiff would invariably be held en-
H
MALLAVARAPU KASIVISWESWARA RAO v. 1221
THADIKONDA RAMULU FIRM [TARUN CHATTERJEE,J.]
.. titled to the benefit of presumption arising under Section 118(a) A
in his favour.
14. Keeping the aforesaid in mind, let us now see if the
respondents in this case had discharged the initial burden, which
lay on them to prove that the pronote being Ex.A-21 was not
supported by consideration. B

15. The learned counsel for the appellant, as noted herein
earlier, contended that the respondents had neither taken the
plea that there was no consideration for the pronote Ex.A-21,
either in the reply notice or in the written statement, nor had theyc
adduced any evidence to prove the non-existence of the con-
sideration. The learned counsel for the respondents, however,
contended that the respondents had denied the very execution
of the pronotes and referred the same as forged both in the
.. reply notice as also in the written statement. We are unable to
accept the contentions of the learned counsel for the respon-
D
dents. In the written statements, the plea of the respondents was
that on the face of the pronotes, no cash was paid by the appel-
lant and therefore, the respondents were not liable to pay the
amount because the pronotes were forged. It was a finding of
the trial court, which was affirmed by the High Court in the im- E
pugned judgment that the pronotes were indeed executed by
the respondents. It was also a finding of the High Court that
except in the reply notice issued by the respondents, nowhere
had they stated that the consideration had not passed. It is also
an admitted position that the findings of the two courts below F
was that the execution of the pronotes having been proved, the
presumption under Section 118(a) must come into play and the
appellant must be entitled to a decree in the absence of evi-
dence to the contrary. Having said this, the High Court pro-
ceeded to observe that if there was evidence inconsistent with G
.. the presumption under Section 118(a) of the Act, the court would
not be in a position to pass a decree in favour of the appellant
on the basis of the presumption and therefore, proceeded to
examine the evidence of the appellant in extenso. In view of the
decision of this Court in Bharat Barrel & Drum Manufacturing H
1222 SUPREME COURT REPORTS [2008] 8 S.C.R.
('.\.-'

~
A Company Vs. Amin Chand Payrelal [supra] and also in view of
the findings arrived at by the Courts below, we are of the view
.
that since the initial burden on the respondents to show that the
pronote being Ex.A-21 was not supported by any consideration
was not discharged by them, the High Court was not justified in
B not decreeing the suit of the appellant in respect of the amount
covered by the pro-note Ex.A-21. It is an admitted position that
the finding as to the execution of the pronotes had become fi- ..
nal. Also, we are of the view that the respondents had not dis-
charged the initial burden of proving the non-existence of con-
c sideration either by direct evidence or by preponderance of
probabilities. The mere denial, if there be any, by the respon-
dents that no consideration had passed would not have been
sufficient and something probable had to be brought on record
to prove the non-existence of consideration. In this view of the
matter, we are, therefore, of the view that once the execution of
D
the pro note has been proved, the appellant would be entitled to ~

the benefit of the presumption under Section 118(a) of the Ne-
gotiable Instruments Act because the respondents had failed to
discharge the initial burden and therefore, the High Court was
in error in appreciating the evidence of the appellant to come to .
E the conclusion that since such evidence was inconsistent with
the pronote being Ex.A-21, the appellant could not be given the ..
benefit of the presumption.
~
16. For the foregoing reasons, the appeal is allowed and -.,-
~

F the judgments of the courts below ::ire, therefore, modified to
the extent that the suit of the appellant must stand decreed in its
entirety. There will be no order as to costs.
N.J. Appeal allowed