Jhari Singh and Others vs Tokharam Marwari and Another

Dawson Miller, C.J.—This is an appeal by the defendants from a decision of the District Judge of Dumka, dated the 3rd May 1918, reversing a decision of the Subordinate Judge of Raj Mahal, dated the 25th January 1918.

The plaintiffs brought a suit to enforce a mortgage executed by the principal defendants on the 23rd July 1910 as security for an advance of Rs. 700. At the date of the suit a sum of Rs. 1,400 was due as principal and interest and that was the amount claimed. The defence was that no consideration bad passed for the execution of the bond and that it was merely a benami transaction, and the question which had to be decided at the trial was mainly whether consideration bad in fact passed. It is not disputed that the plaintiffs in such a case have to make out the execution of the bond and the fact that consideration was paid, unless it is admitted. In most oases there is a recital in the bond that the consideration money has been paid and when execution is proved, this admission by the mortgagor is sufficient to satisfy the burden of proof as to the passing of consideration and if the mortgagor denies the passing of consideration, then it is for him to make out such a case. In the present case the bond admitted the payment of consideration by. the mortgagee and it was further proved that at the registration proceedings, which took place shortly after the execution of the bond, payment of the consideration was again admitted by the mortgagor. Had the plaintiffs upon this question rested their case there, undoubtedly they would have discharged the burden of proof and it would have been for the defendants to'' satisfy the Court that notwithstanding this admission no consideration had, in fact, passed. The plaintiffs, however, in the course of the evidence produced by them in support of their case, admitted that the consideration money had not, in fact, been paid up to the time when the registration took place and, therefore, in so far as there was a recital in the bond and in so far as the registration proceedings in themselves afforded evidence of payment of the consideration money, it was quite clear that they could no longer be relied upon in view of the admission that those statements were not accurate. The plaintiffs, however, endeavoured to prove that although the consideration had not been paid up to the time of registration it was, in fact, paid some days later, and they gave evidence in support of that case. The defendants, on the other hand, called evidence to show that no consideration of any sort was paid at any time and, therefore, the only question which the trial Court had to decide was which of these two sets of witnesses it � should believe. The learned Subordinate Judge after considering and weighing the evidence same to the conclusion that the defendants'' case was the right one and that no consideration had, in fact, passed and he dismissed the suit,

The plaintiffs thereupon appealed to the District Judge and the District Judge, as it appears to me, fell into a serious error in regarding the case as one in which the onus of proving that no consideration passed lay upon the defendants. He deals with the case in this way. He says that one of the main points in the appeal was that the onus of proving that the consideration money was paid had been put wrongly upon the appellants before him (that is to say, the plaintiffs), whereas it should have lain heavily on the respondents to show that it was not paid. Then he says: "As to the onus I consider that it lies very heavily on the defendants to show that the consideration money was not; paid. It was expressly admitted at the time of registration that it had been paid, and I do not think the onus is shifted because it is admitted by the plaintiffs that it was paid afterwards." Now there the learned Judge, in my opinion, clearly went wrong. Once it is admitted that the evidence of the registration proceedings as to payment of consideration is wrong and cannot be supported, it is quite clear that no value can '' be attached to evidence of that sort. Then the learned Judge says a little lower down: "As the lower Court''s judgment shows, the decision of this point" (which we have just been considering as to whether the consideration had passed or not) "was difficult, because there was only a slight balance of evidence in favour of the defendants. I do not consider this balance is sufficient to discharge the onus placed upon them." It is quite clear reading that passage that the learned Judge was under the impression that notwithstanding that there was an admission by the plaintiffs that the evidence of the registration proceedings was not accurate, still there was by the mere fact of registration having taken place some sort of presumption that consideration had passed. It is, to my mind, clear that no such presumption can arise when there is a distinct admission that no consideration had passed at that time. Then again in a later passage of his judgment the Judge proceeds in this way: "The main fact in the case, which there is no getting away from, is that at the final registration of the document the defendants admitted receipt of the consideration money, and to allow them to deny this now without the clearest possible proof would be to render inoperative the provisions of the Registration Act for certifying the execution of contracts." There again the learned Judge seems to have forgotten that the evidence of payment of consideration, which is admittedly inaccurate according to the plaintiffs own case, cannot be relied upon as any evidence at all. Nevertheless in spite of this the learned Judge based his whole decision upon evidence of this nature. The truth is that this case is not a case which had to be decided upon any question of onus of proof at all. The question of onus of proof only arises when there is a question of fact to be determined and there is no evidence one way or the other which will enable the Judge to come to a conclusion. In such a case the Court has to decide whether the burden of proving that fact lies upon the plaintiff or the defendant. If the burden of proof- lies upon the plaintiff and the proof of that fact is essential to his case, then the plaintiff must fail because be has not discharged the burden which lay upon him. On the other hand if the onus of proving that fact was upon the defendant and its proof is essential to the defendant''s success in the case, then the defendant must fail because he failed to discharge the burden which was upon him. But where there is a fact which is essential to the determination of the case, whether the burden, in the first instance, be upon the plaintiff or the defendant, if there is evidence of both parties, then the question of the burden of proof becomes immaterial and the Court has to determine that question upon the evidence before it. In the present case there was evidence both ways and the learned Judge should have applied his mind, to the question which side ought to be believed, that is whether the evidence given by the plaintiffs as to the passing '' of consideration was more worthy of credit than the evidence given by the defendants to the contrary. Instead of that he dealt with the case as if there was some heavy burden upon the defendants in the first instance the moment that the registration proceedings had been proved. Although he seems to have realised that the lower Court; thought the balance of evidence was in favour of the defendants, he says that having regard to this burden which lay upon the defendants that balance was not sufficient to discharge it. There, in my opinion, he was clearly wrong.

The only question is whether we should reverse this decision and restore the findings of the Subordinate Judge. I think the proper course is to remand the case for re-hearing by the learned District Judge with the directions already given, that is to say, he mast disregard the question of onus altogether and deal with this question whether consideration passed or not merely upon the evidence actually before him, disregarding the admission made on registration which on the plaintiffs'' own showing cannot be accepted as evidence of payment of the consideration money at or before registration. He must decide whether there was a subsequent passing of consideration. There was evidence both ways and he will have to consider that evidence for himself and judge whether the weight of evidence is, as the Subordinate Judge decided, in favour of the defendants or whether after considering it himself he is satisfied, notwithstanding the findings of the Subordinate Judge, that the weight of evidence is in favour of the plaintiffs and whether he is, therefore, entitled, in that state of things, to reverse the judgment of the trial Court.

In the result the decree appealed from will be set aside and the case will be remanded to be dealt with by the District Judge in accordance with law and the directions given above. The costs of this appeal will abide the result of the District Judge''s decision.

Foster, J.

I agree.