(1.) This in an appeal by only one of many defendants in a suit for sale brought on foot of two mortgages, dated 8 March 1911, for the sale of the same property and under the following circumstances. The mortgagor Maqbul-ur-Rahman, who is Defendant 1 in the case, made the two mortgages aforesaid in favour of one Shadi Ram and five others. One of these creditors was one Lakhpat Rai whose name would again appear in the course of the judgment. The properties mortgaged were several including the village of Khajuri. The Plaintiff No. 1 and Defendant 15, Cheddan Lal, obtained a mortgage from Maqbul-ur-Rahman for a sum of Rupees 4,000 on 16 February 1913. On foot of that mortgage they brought a suit for sale and obtained a decree. Cheddan Lal sold his share in the decree to Brij Bashi Lal, father of Plaintiff No. 2. The plaintiffs have paid off the mortgages of 1911 to the mortgagees and have obtained a receipt discharging the mortgages. The plaintiffs claim that having paid off the prior mortgage of 1911 they have been subrogated to the position of the original mortgagees and are entitled to sue on foot of these mortgages.
(2.) Among the defendants was the present appellant he having purchased, in execution of a simple money decree, a portion of the property mortgaged. He contested the claim two of his pleas were these: (1) The mortgages of 1911 were without consideration and (2) that, in any case, the present plaintiffs acquired no right to maintain the suit simply because they paid off the original mortgagees. The Court below found against the appellant on both the points and hence this appeal. In this Court these two very points have been raised and we proceed to consider them.
(3.) On the first point, the burden of proof would be on the defendant-appellant, he being a representative of the mortgagor who has admitted in the bonds themselves the receipt of the consideration money. The plaintiffs however adduced evidence to prove the passing of the consideration money and the appellant has also adduced some evidenced to rebut the same and we have to see whether consideration actually passed or not.