Nagayya Gowdu vs K. Chenganna Gowdu and Others

Mamaheswaram, J.—The Plaintiff is the Appellant. He is the only son of the 1st Defendant. Defendants 2 and 3 are alienees of some of the joint family properties from, the 1st Defendant. The suit was filed for partition and separate possession of a. half share. So far as the alienation is concerned, the Plaintiff stated that the father, the 1st Defendant, was friendly with Veeramma, the mother of Defendants 2 and 3, that in order to benefit her within a. few months after the Plaintiff''s birth, a nominal mortgage, dated 9-12-1927. was created in favour of her mother, Gangulamma, for a sum of Rs. 600 and that the sale deed, dated 19-6-1933, was executed in favour of Defendants 2 and 3 purporting to discharge the mortgage debt. Defendants 2 and 3 contended that both 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 J 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.

On appeal, the District, Judge of Chittoor reversed the judgment and donee of the District Munsif. He agreed with the District Mimsif 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 ho has not discharged the burden and allowed the appeal with costs. The Plaintiff has therefore preferred the Second Appeal.

On a careful consideration of the papers, I am of opinion that the District Judge has not addressed his mind to the several questions discussed by the District Munsif and a fresh finding should be called for. The District Judge has not discussed the material questions, namely, whether Ganguiamma had sufficient means to and whether Veeramma was the mistres or the 1st Defendant and whether the mortgage deed was executed soon after the birth of the Plaintiff to benefit her. He also gave no reasons for discrediting the evidence of P. W. 3 upon whom the trial Judge placed great leliance. He also did not discuss, in detail, the evidence of the Defendants'' witnesses or state as to why their evidence should he accepted in preference to the Plaintiff''s witness As I propose to call for a finding, I do not wish to discuss the evidence. But before calling for a. finding I hud if ecessary that an authoritative riding should be Riven by a Bench of this Court on the question, upon whom the burden of proof the whether the mortgage deed is supported by consideration or not.

In Bhagawan Singh v. Bishambhar Nuth, 1940-2 Mad LJ 452: AIR 1910 PC 114 (A) Lord Justice Goddard held that in a sail to enforce a mortgage by a Hindu father against the other & his sons, the onus of proof on the qseuslion whether there was consideration or whether the full consideration stated in the mortgage had in fact passed is wholly on the Defendants and it is not for the Plaintiffs to prove this matter affirmatively.. This Privy Council decision was distinguished by Abdur Rahman, J., in Sreeramulu v. Than-davakrishnayya 1942 Mad LJ 452 : AIR 194, Mad 77 (B). The learned Judge held that if the mortgagee wanted to enforce his mortgage as mortgage and to get a decree for sale against the sons'' interests, he would have to establish that the mortgage had been executed by their father either for legal necessity or for payment of an antecedent debt, and that the recitals by the mortgagor alone would be iiisulfia ient against the sons to shift the onus of proof. was held, fallowing the decisions in Mariapoa Goundan v. Pnlania-pa Goundan, AIR 1930 Mad 79 (C) and S.K. Raghavendra Rao Vs. Venkatasami Naickan and Others, (D) that the admission contained in a recital Of a document only applies to the case where the suit is brought either against its executants 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 alias Nambiappa Muthirian Vs. Kandaswami Muthirian and Another, (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 AIR 1940 114 (Privy Council) (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 So-sham ma v. Narasimharao AIR 1940 Mad 356 (G), Leach, C.J. held that whereas a Judge of the High Court sitting- alone is not bound on a question of law by the decision of Anr. Judge sitting alone the . Division Bench should regard itself bound by a decision of Anr. Division Bench on a question of law unless the case is referred to a Full Bench, But recently Subba Rao, C J" stated in M. Subbarayudu and Others Vs. The State, , that a single Judge shall not differ from a judgment of Anr. Judge of the same Court and that if he does not agree, the proper course for him is to refer the ease to a Bench of two Judges to avoid conflict of decisions. The object of the learned Chief Justice in laying down the law is stated to be as fallows:

The public will know their rights and the subordinate Courts will be in a position to administer the settled law without any difficulty. I hoe and trust that in the interests of the smooth and efficient; judicial administration of the State, this High Court will in future follow strictly the aforesaid procedure without any deviation." Though according to the Full Bench decision in AIR 1940 Mad 350 (G) which, is also binding on me I am not bound on a question of law by the decisions of the single Judges of either the Madras High Court or of this Court referred to supra and I might examine the question on principle still I feel inclined to refer the matter to a Bench in accordance with the Full Bench of this Court to solve the conflict that exists between the decision of Chandra Reddy J., on the ''one hand and Abdur Rahman, J. and Somayya, J., on the other hand.

The learned advocate for the Respondents, sought to support the judgment Of the Courts below on the question of onus of proof on Anr. independent ground. He contended that in as much as the alienee proved that the alienation was effected for an antecedent debt it was necessary for the son to prove that the antecedent debt, viz.. the mortgage, was nominal and not supported by consideration. In support of this proposition, ho invited have attention to the passage at page 473 of Mayne''s Hindu Law (11th edition) and page 303 of Mulla''s Hindu Law ( the edition). The learned advocate for the Appellant however relied on the decision of a single Judge in K. Seetharam Naidu and Others Vs. K. Balakrishna Naidu and Others, (I). It. was held by Wallis,. J., (as he then was) 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 agene 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 M.-.O 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

Bhimasankaram, J.

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 eases where an alienation by a Hindu father is attacked by his son on the ground that it is not supported by consideration and secondly in order that an authoritative ruling as to whether an alienee claiming under such an alienation and seeking to support it on the basis that the consideration therefore went in discharge of an antecedent, debt, .should further establish also that the antecedent debt was real and supported by consideration. Rut before entering into a discussion of the questions so arising, it would he convenient to consider the nature of onus probe and There is a difference between the burden of proof on, the pleadings and the burden of adducing evidence. The burden of proof arising on the pleadings never shifts, while the burden of adducing evidence shifts from one side to other during the trial. The burden that arises from the pleadings depends upon the facts asserted or denied and is determined by rules of substantive or statutory law or by presumptions of law or fact. Such a burden never shifts, vide Lakshmanna v. Venkateswarlu (K). But even so, if the entire evidence has been adduced by both the parties and the tribunal feels it can make up its mind as to the truth of the version of either party, then the ultimate decision of the Court will not turn upon the burden. But where the Court finds that the evidence is conflicting or equally balanced so as to make it difficult for it to arrive at a determinate conclusion, then, the burden of proof on the pleadings turns: the scale. The* question of onus may also be decisive where one or both of the parties has not adduced any evidence at nil on the patellar issue. Then again in regard to the shirting of onus of ; the other kind, it would be inexpedient, even if it were possible, to lay down at what particular statue in the course of the evidence it shifts from one party to the other.

Now. the rule as to the burden resting on an alienee (under a sale or mortgage executed by a Hindu father, family manager or a limited owner) wale seeks to affect the rights of persons not .parties to the transaction in his favour, derives directly from the substantive law where under the powers of alienor of that character are limited to the existence of necessity bonnet or antecedent debt. There is a further rule of substantive law that the alienee is also protected if he can satisfy the Court that in entering into the transaction he acted bona fide on the representation of the alienor as to the existence of necessity, benefit, etc. tinder the above rules of substantive law, if a mere JHENGANNA Bhimasankaram

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 Ben-j; 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 husband for the benefit of remote or distant reversioners or by a father alienating his own with the interest of his son. It is common experience that in a large number of alienations by fathers or managers of joint families, the honors themselves are behind the attack. It would be wholly improper to hold that in such cases it is not open to the Court to draw the inference that the recitals made by them are prima facie true when knowing all the facts as they do they keep out of the witness-box.

That being the law as to recitals of necessity, etc., is there any rule as to a recital acknowledging the receipt of the consideration? There can be little doubt that such a recital is admissible in evidence, though if the decision in Muthachi alias Nambiappa Muthirian Vs. Kandaswami Muthirian and Another, (E), is correct it is not enough. Now, it is necessary to consider whether there is any rule as to the sufficiency in law of such a recital. We think not. It has never been laid down that a person attacking a transaction of the nature above referred to can add to the burden of the alienee by an additional plea that the transaction he impugns is altogether devoid of consideration. It is difficult to conceive that an alienee, who seeks to establish actual necessity, benefit or antecedent debt can succeed, unless he proves that the necessity or benefit or antecedent debt was met or paid out of the money that the alienor received from him by way of consideration for the deed in dispute. To that extent, the burden as to consideration is necessarily involved in the initial burden that rests on him. But it is difficult to subscribe to the proposition that there is apart from what is HO involved, any abstract doctrine of onus applicable to the situation As stated above, the value to be attached to a recital may vary with the circumstances of each case such as, how long ago it was made and by whom it was made. It has never been disputed that the acknowledgment of receipt of consideration by an executants before a Registrar is evidence even as against non-executants and may. in the absence of proof to the contrary by them tell against them. Then, again, the value such a recital may carry may well depend upon whether the recital is made in the document attacked or in an earlier document relied on as a voucher, especially where there is a series of such vouchers. These are rules relating to sufficiency of evidence 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 S. Chidambaramma Vs. S. Hussainamma and Others, (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.

To sum up, it appears to us that there is no special rule of onus in such case:

Our learned brother Dhandra Rcddy, J , stated in AIR 1854 Andh''a 17 (P), that it is for the persons who plead want of consideration to prove it, notwithstanding !w. fact that they arc not parties to the original cucumber and that the persons claiming it do not claim under him. This proposition does receive suomotu from the decision of the Council in AIR 1940 114 (Privy Council) (A), which he cites. That was a case in which an action was brought on foot of a mortgage dated nth August, 1924. That mortgage was, the last in a series by way of renewal of an original mortgage dated 22nd July, 1892, whereby the fattier of the 1st Appellant and the great-grandfather of the second and third Appellants had mortgaged some of the ancestral lands to the father of the contesting Respondent. The execution and completion of the original mortgage and the receipt of the consideration there under were admitted by the mortgagor in the presence of the Sub-Registrar. There were various payments made en account of interest due under the antecedent mortgages. The only point argued before the Privy Council arose out of an issue framed as follows:-

Was the bond in suit executed for consideration and is it not binding on the Defendants?'''' It was the case of the Defendants that the original mortgage was not substantially supported by consideration. On these facts their Lordships of the Privy Council made the following observations Which are relevant to the present discussion:

Now there seems to have been some misunderstanding as to the onus of proof in this case. In their judgment the High Court said: ''We are of opinion that the burden of showing that consideration had passed under the mortgage of 1892 had been discharged by the Plaintiffs and the Defendants did not produce any satisfactory evidence to show that the money was returned to the mortgagee. But in the opinion of their Lordships the onus of proof on the question whether there was consideration, or whether the full consideration stated in the mortgage had in fact passed, is wholly on the Defendants and it is not for the Plaintiff to prove this matter affirmatively; on the other hand when the Question is whether there was legal necessity for the borrowing, the onus of proving that there was is on the Plaintiffs.

But in Maddali Sreeramulu and Another Vs. Kavur Thandavakrishnayya and Others, (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 AIR 1940 114 (Privy Council) (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 and grandson were sued as heirs or legal representatives. In fact their Lordships referred to the first mortgage by the grandfather Durjan Sal as covering some of his ancestral lands. The whole of the paragraph, at the beginning of which the passage extracted by us occurs, is devoted to the consideration of the evidence adduced by the Defendants by citing Ganesa Prasad and concludes as follows:

Ganesa Prasad''s evidence having been rejected as untrustworthy there was nothing left in the case, and it was really unnecessary for the Plaintiffs to have called any evidence on the issue as to consideration, for, as has already been pointed out. the burden of proof was entirely on the Defendants.

Abdur Rahman, J, refers to two decisions reported in S.K. Raghavendra Rao Vs. Venkatasami Naickan and Others, (D). the decision of a Division Bench and. Mariappa Goundan Vs. Palaniappa Goundan and Others, (C), that .of a single Judge as supporting his view. The main question in the former case was whether recitals made by a mortgagor who became an insolvent and whose property vested in the Official Receiver as to receipt of consideration were tantamount to prima facie proof of such receipt. There were also in that case subsequent mortgagees and purchasers of portions of the hypothec, some under private and some under Court sales. It was contended on behalf of the Official Receiver that as he was a stranger to the document the burden lay on the mortgagees to prove the passing of the consideration as against him. The learned Judges held that if the Plaintiff in such a case proves execution and exhibits documents containing recitals as to the receipt of the consideration by the mortgagor, he makes out a prima facie case as to the passing of consideration and it is up to any person claiming under him to displace that prima facie proof. There was no occasion for the learned Judges in that case to discuss the present question. In the later case, a single Judge of the Madras High Court declined to apply the rule laid down in the Bench case to the facts before him and in the course of his judgment, however he made the observations referring to the general rule enunciated in the earlier case by Ramesam, J., that it is only with reference to persons and executants claiming under them that the rule in that decision would apply. It is clear from the judgment that the learned Judge accepted the finding of the lower appellate Court, and he discussed the question of onus only incidentally. His remarks are obiter and are unsupported by any authority, The decision of Mr justice Somayya in Muthachi alias Nambiappa Muthirian Vs. Kandaswami Muthirian and Another, ( (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 l 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 pro vine want or consideration is upon the persons who challenged it. I do not think that the hecisioir of the Judicial Committee can, under these circumstances, be taken to lay down that in all cases where a creditor sues upon a mortgage executed by the father, the onus of proving consideration is not upon the mortgagee and that the sons have to prove want Of consideration for it.

Having regard to what We have stated above with regard to the effect of the Privy Council decision, we cannot agree that there is any such rule as to onus. The real question in such cases is whether the executants as an individual received the consideration recited and there is no reason why his own admission in a solemn deed as to its receipt should be regarded as ox little valve.. Such an admission is not to he ruled out as res inter allocate, because the mere fact that he received the consideration mentioned is, by itself, of no legal effect against Ors. . Unless such a recital is necessarily to be viewed with suspicion (for which there is no warrant in substantive law) it may well be taken as prima facie proof cf such receipt. We are not to be understood however as implying that in the particular circumstances of these cases, the decisions in Maddali Sreeramulu and Another Vs. Kavur Thandavakrishnayya and Others, (B) and Muthachi alias Nambiappa Muthirian Vs. Kandaswami Muthirian and Another, (E). were not right. But we must respectfully de the to support the proposition that Iany general doctrine of onus is involved in such cases. We cannot agree that in ah. cases such a ''recital should be considered inadequate in law.

Now. as regards the other question on which an authoritative ruling is sought by our learned brother, it seems to us, the answer is covered by the foregoing reasoning. If the recital in a document under attack is itself some evidence as to the passing of consideration, then the have applies with greater force in the case of an antecedent document. Unless there are circumstances established in the case raising a reasonable suspicion as to the truth of the recitals made, there is no reason why such recitals should not be adapted as prima facie proof. There is no presumptive of law that such recitals are not correct and I that they are fraudulently made.

Though our learned brother has referred the case to us for decision on the questions of law above referred to, case with the consent of counsel on both sides, thought it convenient to dispose of the appeal on the merits.

The transaction impeached in this case S is a sale deed executed on 19th June, 1933. by the v. 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 mort- m gage-bond dated the December, 1927, executed by their vendor in favour of their maternal grand mother. This latter deed recites the receipt of about Rs. 600, in all. consisting of several items. 1 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 frottage bond, towards the discharge of which, the I consideration there under was alleged to have been 1 borrowed are a sum of Rs. 100 due to P. W. 3 and Anr. sum of Rs. 100 due to D. W. 2. P. W. 3 1 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 these facts, the lower appellate Court decided that Exhibit B-l is binding upon the Plaintiff. In the course of its judgment, after discussing a portion of the evidence, it observed that the burden lay upon the Plaintiff to establish want of consideration. We are inclined to agree with the learned J District Judge, having regard to all the circum- "f stances of the case, that the burden lay upon the Plaintiff to establish that the recitals in a mort gage-bond which was executed six years before the actual alienation and twenty years before the date when it was attacked were false, especially in the absence of their father from the witness-box.

We therefore , affirm the decision of the learned District judge and dismiss this appea; with costs.