(HAFIZ) ALLAH BAKHSH Vs. HAMID KHAN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit brought by him for recovery of Rs. 1,671-8-6 alleged to be due under an acknowledgment, dated 8 August 1924, executed by the two defendants: Mt. Mumtazi Begam defendant 1, and her husband Hamid Khan defendant 2. Both the Courts below have dismissed the suit. Hence this second appeal. The acknowledgment is in the following terms: That the second executant (Hamid Khan) has borrowed Rs. 1,900 from Hafiz Allah Bakhsh, son of Hafiz Nabi Baksh caste Sheikh now resident of Nai Mandi, Agra City and utilized in his business, and the said Hafiz has been persistently demanding his dues and at present we cannot manage to pay off his debt we agree to execute an agreement for mortgage by conditional sale within four months of this.

(2.) It has been found, and the finding has not been contested before us, that the liability acknowledged in the writing quoted above represented certain debts due from defendant 2 to the plaintiff which had become barred by limitation. The case therefore has to be decided on the assumption that the above writing acknowledged a time-barred debt. Defendant 1, Mt. Mumtazi Begam, was joined in the acknowledgment as the shop which it was agreed would be mortgaged by conditional sale belonged to her. For some reason the plaintiff discharged Mt. Mumtazi Begam from the array of parties confining his claim to defendant 2, her husband. Both the defendants contested the suit. We need not refer to the written statement of defendant 1. Defendant 2 denied the execution of the acknowledgment, pleading that he was an illiterate man and if the acknowledgment sued on was found to bear his signature it must have been obtained by some fraudulent means. The Courts below have held that the plaintiff failed to establish the passing of consideration under the acknowledgment sued on. The lower appellate Court observes: Most probably there was some debt due by the defendant to this plaintiff but its amount has not been established on the record except for the recital in the deed of agreement with which the illiterate defendant who can only sign his name cannot be bound in the absence of any reliable evidence on record that the agreement was executed with full knowledge of its contents or that it was ever read out to him.

(3.) The learned Subordinate Judge seems to have been of opinion that the plaintiff must establish not only the due execution of what he calls the agreement but also establish the passing of consideration independently of the recital. If the disposal of the appeal before us had depended upon that question, we would have in all probability differed from the view taken by the learned Subordinate Judge, as if the execution of a document which contains an admission by a debtor to have received the debt is established the burden of proving want of consideration is shifted to the defendant who disputes it. But there is a serious difficulty in the plaintiff's way to succeed in the suit.