1. This appeal arises out of a suit for foreclosure of a mortgage made on the 19th of August, 1898, by one Kali Charan now deceased the first husband of Musammat Dulari defendant No. 1. The property comprised in the mortgage consists of five shops and a house. Of these shops Kali Charan mortgaged one to the defendant Mathura Parshad on the 16th of December, 1898. After Kali Charan's death his widow Musammat Dulari sold this and another shop to the defendant Mathura Parshad on the 28th of January 1902, and on the same date she sold three shops to the defendants Nos. 3 and 4.
2. The suit was contested on two grounds first that Kali Charan was a minor at the date of the mortgage executed in favour of the plaintiffs and second that there was no consideration for the mortgage.
3. The Court below found that consideration had been paid for the mortgage made by Kali Charan but it was of opinion that he was a minor at the date of the mortgage and, accordingly, dismissed the suit.
4. Upon the question of the payment of consideration no argument has been addressed to us on behalf of the respondents. We must, therefore, assume that the finding of the Court below as to the payment of consideration is accepted by the respondents. The only question before us is whether Kali Charan was or was not of full age at the date of the mortgage in suit.
5. The learned Additional Judge holds that the burden of proving majority lay on the plaintiff. He did not believe the oral evidence adduced on either side and apparently relying upon two judgments pronounced in previous litigation in which the question of Kali Charan's age was in issue came to the conclusion that Kali Charan was a minor at the time of the execution of the mortgage in suit. It is urged on behalf of the appellants that the learned Judge was wrong in throwing the burden of proof upon the plaintiffs. We think that the onus of proof was in 'the first instance on the plaintiffs. They seek to enforce a contract entered into by Kali Charan. As the validity of that contract is denied on behalf of the defendant it was for the plaintiffs to establish by prima facie evidence that the contract was valid and was entered into by a person who was competent to do so. In the present case we think sufficient prima facie evidence was adduced on behalf of the plaintiffs.
6. We have first of all the fact that at the time of the registration of the mortgage deed in plaintiff's favour it was stated by Kali Charan that he was of full age. He produced a medical certificate showing that his age exceeded 18 years. The Sub-Registrar by whom the document was registered has given evidence in this case and he says that he was satisfied as to Kali Charan's age. Mathura Prasad defendant who now asserts that Kali Charan was a minor at the date of the mortgage was a marginal witness to the mortgage deed. He identified Kali Charan before the Sub-Registrar and not only did he do this but on the 16th of December following he took from Kali Charan a mortgage of one of the shops which Kali Charan executed as a man of full age--asserting his age before the Sub-Registrar to be 19 years. In addition to this we have the evidence of some witnesses who deposed that Kali Charan was over 18 years of age at the date of the mortgage. One of these, namely, Ishar Din has given important evidence on the point. He swears that Kali Charan was born, 1,2 days after the birth of his daughter and that his daughter was born in Jeth 1935 sambat which corresponds to May 1878. The statement of this witness is corroborated by Musammat Rikha a witness for the defendant. She says that Ishar Din's daughter was born in the same year in which Kali Charan was born and that there was a difference of 10 or 12 days and that Kali Charan was born in the year following the famine year 1934 which corresponds to 1877-78. Now this evidence clearly proves the age of Kali Charan at the date of the registration of the mortgage deed in suit. We see no reason to disbelieve the statements of these witnesses and their evidence coupled with the facts to which we have already referred and Kali Charan's own assertions at the time of the execution of the mortgage deed and the conduct of Mathura Prasad defendant is we think sufficient to establish the plaintiff's allegation and to cast upon the defendants the burden of showing that Kali Charan was a minor when the mortgage deed in question was executed. The oral evidence adduced on behalf of the defendants has been justly held by the learned Judge not to be of any value.
7. There remains then the fact that in certain previous litigation it was asserted that Kali Charan was a minor and the plea of minority was asserted by the Court. The learned Judge considers these judgments to be admissible in evidence as showing that Kali Charan's 'right and ability to transfer his property were denied' and he is of opinion that they were admissible under Section 13 Clause (b) of the Evidence Act. One of these judgments was pronounced in a suit brought against Kali Charan upon a bond executed by him in October 1898. Kali Charan's plea was that he was a minor at the date of the bond. This plea was accepted and the suit was dismissed by the Court of Small Causes. The other judgment was passed in 1901 in a suit brought in the Munsif's Court, upon a mortgage bond executed by Kali Charan on the 24th of January 1899. In that case also the Court found that he was a minor at the date of the bond. It also found that there was no consideration for the mortgage and dismissed the suit. It is said that these judgments are admissible as proving Kali Charan's minority at the date of the bond in suit. We are unable to agree, with this view. The judgments do not come within the perview of Section 13 (b). The cases in which those judgments were passed are not instances in which any right asserted by Kali Charan was recognised or exercised or in which its existence was disputed asserted or departed from. The question in those cases was that of the competency of Kali Charan to execute the documents which were the foundations of those suits. The judgments were admissible only to prove the fact of Kali Charan's denial and of the Court's decision but they are not admissible to prove as against the plaintiffs the minority of Kali Charan. We think that the case of the The Collector of Gorakhpur v. Palakhdhari Singh 12 A. 1 referred to by the learned Judge is distinguishable.
8. The only other circumstance on which reliance has been placed on behalf of the respondents is that in 1899 a relative of Kali Charan applied for and obtained a certificate of guardianship of his person and property. In that case no question of Kali Charan's age was in contest and the application was apparently made with a view to prevent Kali Charan running into debts or to prevent his creditors recovering the debts already incurred by him.
9. In view of our finding as to the age of Kali Charan the fact of a certificate having been obtained after he had attained majority on the representation that he was under age can have no effect as to the validity of the mortgage now in question. In our judgment the plaintiff's claim ought to have been decreed.
10. We, accordingly, allow the appeal and setting aside the decree of the Court below decree the plaintiff's claim with costs in both Courts including in this Court fees on the higher scale. We fix the 15th of December 1909 as the date for payment. The plaintiffs will get interest at the stipulated rate up to that date and there after at 6 per cent per annum.