GADIAN CHETTI (DIED) Vs. VEERAPPA CHETTI

JUDGEMENT

(1.) The only question involved in this appeal is whether the mortgage of the 9th August 1S89 (Exhibit C in the case) in favour of the plaintiff is supported by consideration. Both the lower Courts have found that issue in the affirmative. But it has been argued before us on behalf of the appellants that the decisions of the lower Courts are erroneous in law.

(2.) Mr. Rangachariar argued in the first instance that the lower Courts erred in permitting the plaintiff to prove and rely upon the acknowledgment of receipt of consideration contained in Exhibit C to which document the 2nd defendant was not a party. He relied upon Brajeshware Peskakar v. Budhanuddi (1880) I.L.R. 6 C. p..268 at p. 277 Manohar Singh v. Sumitra Kuar (1907) 5 C.L.J. p. 653 Ghurphekni v. Purmeshar Dayal Dubey (1895) I.L.R. 17 All. p. 428 at p. 430 and Bisheswar Dayal v. Harbans Sahay (1907) 6 C.L.J. p. 659 which decisions, he contended, laid down that a recital of payment, though it may bind a party to the document containing the recital, will not be evidence against the appellant because he was not a party to the document. We cannot accede to this argument. Sections 17 and 21 of the Evidence Act seem to us to provide for the point in question. An acknowledgment of receipt of consideration is, under the circumstances we are considering, clearly such a statement as is defined as an admission in Section 17; and Section 21 provides that an admission so defined is relevant and may be proved not only as against the person who makes it, but also his representative in interest. Mr. Rangachariar could not deny that the appellant was a representative in interest of the person who made the admission. We therefore think that the lower courts were right in permitting the acknowledgment to be proved as against the appellant.

(3.) The next point taken was that the lower Courts erred in shifting the burden of showing want of consideration on to the second defendant after the acknowledgment of receipt of consideration contained in Exhibit C had been proved. Reliance was placed on Lalak Singh v. Ajudhia Prasad (1912) 10 All. L.J. p. 108 where it is stated as follows: "The burden of proof in such a case is primarily on the plaintiffs to establish payment of consideration, and as against the transferee who was no party to the bond and had no sufficient knowledge of the circumstances under which it was executed, that admission is of very little value, and in our opinion is insufficient to shift the burden of proof on to the defendant-transferee." Did the learned Judges who decided that case intend to lay it down as a proposition of law that the burden of proving consideration can in no case be discharged and shifted merely by proof of the acknowledgment of receipt of consideration? We are not prepared to say that they intended to do so. But if they did, we must with deference express dissent from that proposition.