Hari Prasad Chowdhury vs Harihar Prasad Chowdhury and Others

Das, J.—This appeal arises out of a suit instituted by the respondents against the appellants for an order directing the defendant to deliver the registered sale deed, dated the 20th May 1916, to the plaintiffs, or in the alternative for a mortgage-decree against the defendant for a certain sum of money. The plaintiffs'' case is that the defendant executed a mortgage-deed in their favour for Rs. 400, on the 7th October 1915 and that thereafter, that is to say, on the 2nd February 1916 and the 22nd February 1916, the defendant borrowed two other sums from the plaintiffs. According to them, on the 20th of May 1916, the defendant sold to them two of the properties out of the four mortgaged to them for Rs. 7cro. They assert in the plaint that they offered to pay to the defendant the sum of Rs. 186-8-0 and asked the defendant to deliver the sale-deed to them but that the defendant refused to deliver the same to them. The defendant''s case in the written statement was that the entire transaction upon which the plaintiffs rely was fraudulent and that he never borrowed any sum of money from the plaintiffs and that, although he executed the mortgage-deed in favour of the plaintiffs and also the sale-deed dated the 20th May 1916, there was no consideration at all for either of these transactions.

The Court of first instance came to the conclusion that the defendant took a loan of Rs. 200 from the plaintiffs. He accordingly gave the plaintiffs a money-decree for Rs. 200. On appeal the learned Judge in the Court below has reversed this decision of the Court of first instance and has decree4 the plaintiffs'' suit in its entirety. It is argued before us by Mr. Sunder Lal on behalf of the appellant that the dacision of the learned Judge in the Court below is erroneous.

The first point is whether the decision of the learned Judge on the question of the passing of consideration is good in law. The learned Subordinate Judge in the Court below pointed out that the Court of first instance dealt with the case as if the onus was on the plaintiffs to establish that there was a consideration in respect of the transactions. The learned Subordinate Judge was right in pointing out that the defendant having admitted the execution of the-document it was for him to establish that consideration did not pass. Mr. Sunder Lal on behalf of the appellants has urged before us that the defendant did adduce evidence in the Court below. He undoubtedly did adduce evidence but then the Court of first instance entirely disbelieved this evidence. In my opinion the learned Subordinate Judge is right in his decision that the burden was upon the defendant to establish that consideration did not pass. As regards his finding that that burden has not been discharged, that is a finding of fact, which is binding on us in second appeal.

It was then urged before us that the Court below erred in giving a decree for mesne profits to the plaintiffs. Mr. Sunder Lai urges before us that the sum due to him was Rs. 186-8-0 and that the plaintiff on his own admission tendered the sum of Rs. 103-13. He maintains, therefore, that as he had a lien on the property for the unpaid purchase-money he ought not to be liable for mesne profits. The question is not free from difficulty. There is a decision of the Madras High Court in Yella Krishnamma v. Kotipalle Mali 56 Ind. Cas. 530 : 43 M. 712 : 38 M.L.J. 467 : 11 L.W. 563 : (1920) M.W.N. 380 : 28 M.L.T. 88 which decides that the lien does not entitle the vendor to retain possession of the property. Mr. Sunder Lal has not given us any authority which holds the contrary. In my opinion the point urged by Mr. Sunder Lal fails.

I would accordingly dismiss this appeal with costs.

Coutts, J.

6 I agree.