KUMARAPPAN CHETTIAR Vs. NARAYANAN CHETTIAR

JUDGEMENT

(1.) The plaintiff is a puisne mortgagee under a hypothecation bond and he sued for sale of the mortgaged property. The 1st defendant is the son and legal representative of the mortgagor. The remaining defendants were impleaded as claiming an interest in the property by reason of a prior mortgage to defendants Nos. 2 to 5, a sub-mortgage by them to 6th defendant, a suit brought by 6th defendant followed by a decree and a sale of the mortgaged property in Court auction, and lastly a private sale by 6th defendant to defendants Nos. 7 and 8.

(2.) Both the lower Courts held that the plaintiff s mortgage was without consideration and dismissed his suit. The questions that arise in second appeal are (1) whether it was open to any of the contesting defendants to raise the question of consideration, (2) whether, when the execution of the mortgage instrument is proved and it contains a recital that consideration passed, the onus of proving want of consideration does not lie on the persons who wish to attack its validity.

(3.) From the District Munsif s remark, in paragraph 11 of his judgment, about the plaint bond being a colourable one and the Subordinate Judge s remark, in paragraph 6 of his judgment, about its being nominal and fraudulent, I am inclined to think that, if the issue had bean so worded, they would have declared the instrument to be a sham and collusive document; but as there was no issue on this point, we must see whether the plaintiff is entitled to succeed on the Subordinate Judge s finding that Exhibit A was indeed executed by 1st defendant s father but that no consideration passed.