TMI Blog1929 (8) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ations with a view to precipitate a partition in the family. He relied on some other circumstance for showing that the suit document was a nominal one. Defendant 2 contended that the suit document was not binding on him. Defendant 7 raised certain contentions which it is unnecessary to state. The Subordinate Judge granted a decree against defendant 1's share only. The Official Receiver files this appeal and he repeats his contention in the Court below that the suit document was nominal. 2. Defendant 1 became an insolvent some time in August 1914. He had previously executed two mortgages in favour of his wife's brothers. They were dated 15th February 1913 and 27th February 1913. Soon after the mortgagor was declared insolvent, the Official Receiver took steps to have these mortgages declared void against the creditors under Section 36, Insolvency Act, and they were declared void. The present plaintiff 1 is the brother of the father-in-law of the mortgagor. He died before the case came on for trial and his nephews were brought on the record as his legal representatives. These happen to be the two mortgagees whose mortgages were declared void in the insolvency proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils. 4. The next circumstance relied on by the appellant may be thus stated. Defendant 7 obtained a decree in O.S. No. 28 of 1908 and proceeded to execute his decree by sale of the mortgage properties. In the proclamation the suit mortgage was given in the list of prior encumbrances and a remark was added that it was a nominal document. This is a statement made behind the back of the creditor in proceedings to which he was not a party and it was purely a self-serving statement. A statement of that kind is not even evidence against the plaintiff. Thus, so far as the specific circumstances relied on by the appellant are concerned, I think that they do not go to show in the slightest degree that there is any suspicion attached to the document. 5. It is next contended that, even ignoring all the circumstances relied on by the defendant, the plaintiff ought to fail because it is said that the burden of proof is on the plaintiff to prove that there was consideration for the suit mortgage and the supplemental plaintiffs have not discharged that burden resting upon them. The document Ex. A mentions five items of consideration. The first item is a sum of ₹ 1,000 due to the Coimb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the defendants must fail. But I do not wish to dispose of the case on this narrow ground. An elaborate argument has been addressed to us that where ever there is a mortgage and the mortgagee's interest afterwards passes to a stranger and a suit is brought on the document the burden of proof as against the stranger is on the mortgagee and if he fails to show the passing of consideration positively, he must fail even if there is no evidence on the side of the defendants. I agree with a part of this proposition but not with the full extent of the implication in it and, as there are cases either apparently or really supporting the contention of the appellant, I wish to deal with this matter fully. 7. If the suit is between the mortgagee and the mortgagor only and the mortgagor admits the document, the onus of proving want of consideration is on him but if he does not admit the execution of the document and denies it and therefore denies the whole transaction the burden of proving execution and the passing of consideration are both on the plaintiff mortgagee. Generally he discharges his burden by proving execution only and exhibiting the document containing the admission by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n what happens in the case of the mortgagor himself denying execution; and to say this is not to put the purchaser in a better position than the original mortgagor. Now, suppose in such a case the plaintiff mortgagee has proved the execution of the document and has put in evidence the recital therein as to the passing of consideration, i.e., an admission by the mortgagor whose representative the defendant is. In such a case it seems to me that, unless in the course of proving the document circumstances have been elicited by cross-examination of witnesses which throw a great cloud or suspicion on any part of the case, the recitals would be prima facie proof of the passing of the consideration and it is for the defendant who claims under the person who made the admission to meet the presumption arising from the recitals. I do not think it can lie in his mouth to say that he was a stranger to the original transaction; and, if he cannot undertake to meet the plaintiff's prima facie case arising from the; recitals, he cannot, it seems to me, insist on the plaintiff proving something more than the recitals so as to make out the passing of the consideration specifically and not by mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing in the plaintiff's case itself or other surrounding circumstances which threw so much suspicion that without further evidence on the part of the plaintiff it was not prepared to accept his case, or in other words, it would not have called upon the defendant to meet the plaintiff's case. If anything in that case rests upon some such consideration, I would agree with Macdonell, J., that it is a matter for non-interference in second appeal; but Jackson, J's judgment shows that there were no such circumstances and I would agree with Jackson, J., that in that case the second appeal ought to have been allowed. In any event, I am unable to agree with the Chief Justice's observation that because the defendant is a stranger to the document the weight to be attached to the plaintiff's evidence varies. The weight of certain evidence cannot vary because of the nature of the defendant but can only vary with reference to the surrounding circumstances. 10. The recitals in a document may lose their weight on account of other suspicious circumstances surrounding the execution of the document coming out in the evidence; but where there are no such suspicious circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n every case of a stranger-defendant the burden does not shift merely by proof of execution. If it is (merely a statement on the facts of the case, the case lays down nothing in favour of the appellant. 11. The next case is Krishna, Kisore v. Nagendrabala Chowdhurani AIR1921Cal435 . This case certainly does not help the appellant. Both sides adduced such complete evidence as was in their power and the Court was in a position to adjudicate upon the truth and not upon a technical rule of onus. In such cases it is said that the onus of proof becomes immaterial and no importance should be attached to the question of onus. I entirely agree with these remarks. In a case where all the facts are proved by ample evidence and the Court is in a position exactly to say what happened, no importance need be attached to the rule as regards burden of proof. Other cases occur where evidence is very meagre and the Court is not in a position to know definitely what happened. In such a case the case has to be decided with reference only to the technical rule as to burden of proof. Let us imagine a very elementary case. Suppose that beyond exhibiting the document both sides have adduced no further e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit the mortgagee, which is a special case, the mortgagee cannot have a decree for sale. I agree with all this. At p. 457 he agrees with Bisheshwar Dayal v. Harbans Sahay [1907] 6 C.L.J. 659. But on reading the rest of the paragraph it seems to me he is not laying down any rule as to burden of proof. He only says that want of consideration may be proved as part of other circumstances going to show that the instrument is a colourable transaction and not intended to convey any interest to the ostensible purchaser or to confer any title on him. In fact, there seems to be in that case very strong evidence to show that the document was colourable. Whether it came out as part of the plaintiff's case or whether the defendant adduced such evidence I am not able to say. The matter came up in second appeal and the crux of the appellant's contention seems to have been that, even if there is no consideration proved he is entitled to a decree for sale. In my opinion this case does not help the appellant. Certainly I am inclined to dissent from Spencer, J.'s disapproval of Babbu v. Sita Ram [1914] 36 All. 478. 13. In my opinion the observations in Babbu v. Sita Ram [1914] 36 All. ..... 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