MARIAM GEORGE Vs. RICHARD PERIEIRA

JUDGEMENT

(1.) This Second Appeal arises from a suit for recovery of the amount under a hypothecation bond Ext. A dated 11.7.1102 executed by one Bastian Nazarath Miranda, the deceased husband of the 1st defendant in favour of the 8th defendant. Defendants 2 to 8 are the children of Miranda, the 8th defendant being his daughter by his deceased wife. The bond was assigned by the 8th defendant in favour of the plaintiff under Ext. B dated 28.9.1116. The suit was contested by the 12th defendant who had acquired the hypothecata under a court sale in execution of the decree in O.S. No. 494/1109, which was obtained on a prior hypothecation bond. The 8th defendant was not impleaded in O.S. No. 494/1109. The 12th defendant contended that Ext. A was unsupported by consideration and that the same was executed to defeat the claims of the 9th defendant to whom the hypothecata was sold 3 days after the execution of Ext. A without making any reference to the plaint bond. The Trial Court overruled the defence plea and decreed the suit. On appeal by the 12th defendant the decree was reversed, holding that the burden of proof regarding consideration was on the plaintiff and that the plaintiff had not discharged the same. The suit was accordingly dismissed. The plaintiff has preferred this second appeal from the decree of the lower appellate court.

(2.) The only point arising for decision is as to whether the hypothecation bond sued on is supported by consideration. This depends to some extent on the question of burden of proof. The issue as framed by the Trial Court cast burden on the plaintiff. The only witnesses examined in the case are the plaintiff and the 12th defendant, neither of whom have any direct knowledge about the transaction. The position taken up by the 12th defendant was that he being a stranger to the contract, the burden of proving consideration lay on the plaintiff. The appellant relied on the decisions in Raghavendra Rao v. Venkitaswami Naicken and others ( AIR 1930 Mad. 251 ) and Jamuna Prasad Shah v. Faujdir Shahani (AIR 1929 Pat. 254). In the former case after an exhaustive consideration of the case law on the subject Ramesan, J. held that an auction purchaser of the mortgaged property cannot stand in a better position than the original mortgagor in this respect. It was held:

(3.) However, the plaintiff cannot succeed merely on the strength on the presumption. There are a number of suspicious circumstances which throws cloud on this part of the plaintiff's case. The 8th defendant was the daughter of the executant of the hypothecation bond. The bond does not give the age of the 8th defendant when she took it in 1102, but according to her age as stated in the plaint she could not have been more than 16 years old at that time. The deed of assignment Ext. B would indicate that her age was only 18 in 1102. At the time of execution of Ext. A she was residing with her father. The document was produced for registration by her father and he got it back from the Sub Registrar's Office. The property hypothecated was within the jurisdiction of Navayikulam Sub Registrar's Office, but registration was effected in the Office of the Sub Registrar at Chirayinkil. In order to confer jurisdiction to the Sub Registrar of Chirayinkil, a mango tree within his jurisdiction was also included in the bond and it was stated that in case of default of payment of interest and principal as stipulated in the Deed, the hypothecatee could realise the same from this tree also. The fact of registration in a Sub Registrar's Office different from the one where it ought to be normally registered may not by itself matter much. But there is a very significant fact that within 3 days of registration of Ext. A the hypothecator sold the property under Ext. 1 without making mention of Ext. A or providing its discharge. Ext. 1 was registered in the Sub Registrar's Office at Attingal. The effect of such a selection of different Sub Registrar's Offices was that information regarding Ext. A could not reach the proper Sub Registrar's Office at the time of execution of Ext. 1. It may be argued that the 8th defendant would not be bound by what her father did after executing Ext. A; but taken along with the other circumstances, the omission to make mention of this bond in Ext. 1 is very significant. After providing for payment of the debt which later matured into the decree under which the 12th defendant claims, there was a balance which would almost have sufficient for discharge of the plaint claim. It is difficult to understand why the father was anxious to dupe not merely the vendee but his daughter also and that so soon after the execution of Ext. A. In the light of these facts and circumstances the question of burden of proof is not very material. It cannot be said that the conclusion reached by the lower appellate court was wrong on the evidence on record. In this view, the decree of the lower appellate court has to be confirmed and this second appeal must be dismissed with costs.