TMI Blog1955 (8) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the mortgage deed and the sale deed were binding upon the Plaintiff T. The District Munsif of Chattier held that the onus of proving that the alienations made by the 1st Defendant are nominal lay upon the Plaintiff. He held that Ganguiamma was not in a position and had no means to lend the mortgage amount. He also held that as Veeramma was the mistress of the 1st Defendant, the mortgage deed was brought into existence within a few months after the Plaintiff was born. He accepted the evidence of P W 3 in preference to that of D. Ws. 2 3 and held that the consideration for the mortgage was not made out. He therefore found that both the mortgage and the sale were only make-believe transactions that had been brought into existence with the object of benefiting the mistress of the 1st Defendant, and decree the suit with costs. 2. On appeal, the District, Judge of Chittoor reversed the judgment and donee of the District Munsif. He agreed with the District Munsif that the burden of proof lay on the Plaintiff to show that the mortgage deed Exhibit A-2 was a nominal document. He held that he has not discharged the burden and allowed the appeal with costs. The Plaintiff has therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts himself or against persons claiming under him and has no application to the persons on whom the family properties devolve by the rule of survivorship. This decision was followed by Somayya, J., in Muthachi v. Kandaswami Muthirian (1945 1 Mad LJ 207: AIR 1945 Mad 135 (E). It was held that when the father of an undivided son of a joint Hindu family executes a mortgage and the mortgagee brings a suit on it against the son after the father's death and the son denies the consideration for the mortgage, the onus of proving consideration for the mortgage is on the mortgagee and it is not for the son to prove want of consideration. The decision of the Privy Council in (1940 2 Mad LJ 452: AIR 1940 PC 114) (A) was explained away. Mr. Justice Chandra Reddy has, on the other hand, followed the decision of the-Privy Council and held in D. Subramanyani v. K. Bhavanarayana, AIR 1954 AP 17(P) that the onus is always on the persons pleading want of consideration to prove it, although they do not claim it under the executants. No reference is, however, made to the decisions of Abdur Rahman J., and Somayya, J., referred to supra. In the Full Bench decision in Seshamma v. Narasimharao AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that in a suit by sons to set aside alienation of ancestral property by the father, the onus is on the alienees to prove that there was an antecedent debt. While according to the learned advocate for the Respondents it is sufficient for the alienee to wove that there was an antecedent debt, according to the learned advocate for the Appellant, the alienee has to further prove that the antecedent debt is a real debt and is supported by consideration. In Lakshmadu v. Ramudu, ILR 19 10 Mad :AIR 1939 Mad 867 (J), the learned Judges while holding that it was open to a Hindu, son to deny the existence of the debt, however, left open the question of burden of proof. As there is also no authoritative ruling on this question, I refer this question also to a Bench. The Second Appeal will therefore be placed before a Bench for deciding the two questions referred to supra. JUDGMENT OF THE BENCH K. Bhimasankaram, J. 6. This Second Appeal has been referred to a Bench by our learned brother, Umamaheswaram, J.., firstly in order to settle what he considers a conflict of judicial opinion on the question of onus in cases where an alienation by a Hindu father is attacked by his son on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation of the alienor as to the existence of necessity, benefit, etc. under the above rules of substantive law, if a mere recital as to the existence of necessity were decisive against the assailant, the rules could easily be circumvented. It has therefore been well settled by a long series of decisions beginning perhaps with Mt. Wahidun Nissa v. Mt. Shubruittun 6 Beng; LB 54 (L), that the recital as such is not proof, though it is evidence, of the existence of necessity, etc., or of the representation, that is to say. the onus resting on the alienee is not discharged merely by producing the deed and relying- on the recitals therein. The weight, however, which may be attached to a recital of such nature will depend upon other circumstances in the case. (Vide Banga Chandra Dhur Biswas v. Jagat Kishore ILR 44 Cal 180: AIR 1916 PC 110 (M). A recital in a document of more than 50 years old, when the parties to the original transaction are no longer alive, may naturally carry greater weight than that in a recently executed document. The weight to be attached may also depend upon the fact whether the recital is made by a widow who may not be interested in protecting the estate of her hu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence and not to onus. In all these cases, it must also be remembered that the normal rule is that he who seeks to show that the apparent is not real must carry the burden of establishing it. If a person says that what purports to be a sale deed is in reality a gift deed, it is for him to prove it. Indeed, such was the view taken as early as the case in Chidainbaramma v. Hussai-namma (ILR 39 Mad 565: AIR 1916 Mad 347) (N) a Bench decision of the Madras High Court. The head-note of that ruling so far as it is relevant is as follows: Where a Hindu widow sold certain property of her husband and subsequently the Plaintiff obtained a decree against her for a debt due by her husband, attached the said property in execution, and on the attachment being raised at the instance of the alienee, sued for declaration that the sale was nominal or without consideration that it was in any event not for necessity and that the property was liable to be attached in execution, held that the onus of proving that the sale- Was nominal or without consideration lay upon the Plaintiff, while the onus of proving that it was binding on the reversion lay on the alienee. 9. To sum up, it appears to us tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1943 Mad 77) (B). Abdur Rahman, J., held that a mortgage seeking a decree for sale against the sons of the mortgagee must in spite of the recitals contained in the document prove the receipt of the consideration there under as against them. With reference to the Privy Council case in 1940-2 Mad LJ 452: (AIR 1940 PC 114) (A),, he made the following observations: But in as much as the Defendants in the Privy' Council decision happened to be the son and grandson of the mortgagor learned Counsel for the Appellant contended that the onus of proving the want of consideration should lie, view of the admission by the 1st Defendant in mortgage-deed, not only on him, but on his minor sons as well. It must be, however, remembered that Durban Sal had apparently died before the suit and his son and grandson were being sued on the mortgage executed by their father and grandfather as his heirs or legal representatives and the question as to the extent of consideration alone, as distinct from the question of its being binding on the son or the grandson, was being taken by their Lordships into consideration. It is difficult to see where the learned Judge got the impression that the son an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question of onus only incidentally. His remarks are obiter and are unsupported by any authority, The decision of Mr justice Somayya in 1945-1 Mad LJ 207: (AIR 1945 Mad 135 )( (E), has to be next considered. The proposition which he lays down in the case if; that where a transaction is sought to he enforced a earns persons 'who do not claim through the eeriest, the admission in the documents as to the receipt of consideration is not enough. I:, may to once be remarked that this is an observation concerning the sufficiency of proof and not the dims, tie, however, went into a detail's expressed of tin; facts of the Privy Council are and oppress id the view as to its effect in the following- terms: In a case where the major portion of the consideration was paid in cash before the Sub-Registrar and as regards the -balance of about a fourth of the total am omit there was the evidence afforded by the subsequent of the parties and where 40 years alter the original transaction, the- consideration is challenged, it might well be held, that the onus of proving want or consideration is upon the persons who challenged it. I do not think that the decision of the Judicial Committee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19th June, 1933. by the father of the Plaintiff (who is the 1st Defendant) X in favour of Defendant 2 and 3. In support of or the sale deed in their favour (Exhibit B-l), Defendants 2 and 3 have produced Exhibit A-2, a mortgage-bond dated the December, 1927, executed by their vendor in favour of their maternal grand mother. This latter deed recites the receipt of about ₹ 600, in all consisting of several items. The suit impugning the sale was held on 8th October, 1947. two years after the attainment of majority by the Plaintiff. The father of the Plaintiff is alive, but has not entered the witness-box. (Nor has the mortgagee, it is true, given evidence). Two of the debts recited in Exhibit A-2 the mortgage bond, towards the discharge of which, the I consideration there under was alleged to have been borrowed are a sum of ₹ 100 due to P. W. 3 and Anr. sum of ₹ 100 due to D. W. 2. P. W. 3 deposed that there was-at no time any sum due s to him from the father of the Plaintiff, while D. W 2 deposed that the debt referred to as be1ng payable to him was real. The scribe of the mortgage-bond, was examined on the side of the Defendants as D. W. 3 and he supported them. On ..... X X X X Extracts X X X X X X X X Extracts X X X X
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