MADDALI SREERAMULU Vs. KAVUR THANDAVAKRISHNAYYA

JUDGEMENT

(1.) This appeal arises out of a suit brought on the basis of a mortgage-deed (Ex. A) executed by the 1 defendant for himself and as guardian of his minor sons, defendants 2 and 3 on the 25 November, 1929, for a sum of Rs. 700. The defence raised on behalf of the father was to the effect that the mortgage was without consideration and executed with a view to preserve the property against his own bad ways. A separate written statement was put in on behalf of the minor sons in which the validity of the mortgage was also contested. Two issues were framed by the District Munsiff of Narasaraopet: (1) Whether the suit mortgage is true and valid, supported by consideration and binding on the defendants 2 and 3? (2) Whether the suit mortgage was executed in the circumstances stated by the 1 defendant and as such is unenforceable? On a consideration of the evidence adduced by the parties, the trial Court decided both these issues in favour of the plaintiff and decreed the suit. But on an appeal having been taken to the Subordinate Judge of Guntur, this decree was reversed on the ground that the mortgage-deed Ex. A was not supported by consideration. In doing so he held the onus to be on the plaintiff as he was under the impression that the case made out by the plaintiff in regard to the passing of consideration at the trial was different from what was stated in the document although he happened to observe that the question of onus did not arise at that stage. In spite of this, however, if I read paragraph 2 of his judgment aright, I feel that his conclusion as to consideration was mostly if not wholly based on his view as to the onus of proof. Having held the mortgage-deed Ex. A to be without any consideration, the lower appellate Court abstained from going into the second issue raised at the trial and dismissed the suit. This has led the plaintiff to prefer the present appeal.

(2.) The recital of consideration in Ex. A was to the following effect: We have received in all Us. 533-1-3 by your undertaking to pay to the aforesaid creditors. This sum of its. 533-1-3 and the sum of Rs. 166-14-9 borrowed from you in cash this day for our family expenses make a total of Rs. 700. My attention was drawn by learned Counsel for the appellant to the words by Havalat appearing after the word creditors thereby implying that the recital was to the effect that there was a novation or in other words the plaintiff had agreed to make himself liable to the creditors who had accepted him, i.e., the plaintiff as their debtor, thereby discharging the defendant or defendants from his or their liability to the creditors mentioned in Ex. A. This may be correct; but it is clear that the case was not put on behalf of the plaintiff in that manner and was not therefore considered from that aspect by both the lower Courts. Moreover, different interpretations were placed upon this clause by learned Counsel for the parties and by the Court interpreter. But in view of the decision at which I have arrived it seems to me unnecessary to decide the correct meaning of these words at this stage although it must be stated that the difference alleged to have been existing between the allegations of the plaint and those contained in the mortgage-deed Ex. A referred by the lower appellate Court in paragraph 3 of its judgment is incorrect. There was a reference to an undertaking by the plaintiff to pay to the creditors in both these documents.

(3.) From the way the case was dealt with by the trial Court or treated by the lower appellate Court, it appears that the matters in controversy were not looked at in their correct perspective and the question in regard to the onus was not fully appreciated by both the subordinate Courts. It must be, however, admitted that the pleas taken on behalf of the 1st defendant were not very clear. He came to Court with a mere denial of consideration but in view of what was contained in the document in regard: to the debts that were due by him, he apparently intended to raise the plea of failure of consideration. If he intended to do so, the onus of proving that the sum of Rs. 166-14-9 had not been received by him or that the consideration of the deed in regard to the debts due by him had otherwise failed should have been in view of his own admission in the document laid on him. The plaintiff's "undertaking to pay to the aforesaid creditors" was in itself good consideration so far as the 1 defendant was concerned, and must be regarded to be sufficient in law on the date on which the mortgage was executed. That the 1 defendant's admission in regard to the receipt of the consideration in the deed would shift the onus of proving the absence of it, on him or on those who claim through him admits of no doubt. It is fully borne out by the decision of their Lordships of the Privy Council in Thakur Bhagwan Singh V. Bishambhar Nath (1940) 2 M.L.J. 452: I.L.R. (1940) Kar. (P.C.) 267. to which my attention was drawn by learned Counsel for the appellant. The facts of that were that one Durjan Sal, the father of the 1 appellant in that case and the great grandfather of the 2nd and 3 appellants had mortgaged some of his ancestral land to one Bhojraj, the father of the 4 respondent for Rs. 25,000. The consideration for the mortgage was stated in the deed to be a discharge of two promissory notes with interest amounting to Rs. 6,221-8-0 and a cash payment of Rs. 18,778-8-0 for payment of a debt due under the bond. The execution of the mortgage and the receipt of Rs. 6,221-8-0 were admitted by the mortgagor in the presence of the Sub-Registrar who certified that the cash payment of Rs. 18,778-8-0 was made to the mortgagor in his presence. In regard to the onus of proof their Lordships observed, in the circumstances, as follows: But in the opinion of their Lordships, the onus of proof on the question whether there was consideration or whether the full consideration stated in the mortgage did in fact pass is wholly on the defendants and it is not for the plaintiff to prove this matter affirmatively. The position would be the same if the 1 defendant pleaded subsequent failure of consideration. Once consideration is found to have been admitted by a person, the onus of proving its failure would have to be, generally speaking, discharged by him or by those who claim through him.