1. The only question in this second appeal is whether when the father of an undivided son of a joint Hindu family executes a mortgage and the mortgagee brings a suit on it, the onus of proving consideration for the mortgage is on the mortgagee or whether it is for the son to prove want of consideration. The suit mortgage was executed by the father of the first defendant and the suit was filed against the son, the first defendant, and the second defendant a subsequent mortgagee. The son denied consideration as well as necessity for the mortgage. Both the points were found by the trial Court against the plaintiff and the suit was dismissed. On appeal, the Subordinate Judge agreed with the District Munsiff in holding that there was no necessity for the mortgage but he gave a decree against the executant's half share in the suit property. On the question of consideration he held that the onus of proving want of consideration is upon the son, the first defendant, and that he did not discharge it. It was also found that there was no necessity or antecedent debt to support the mortgage against the son's share. The Subordinate Judge gave a decree against the father's half share in the hands of the son, and there is no appeal against it.
2. In second appeal filed by the creditor it is argued that he is entitled to a decree against all the joint family properties in the hands of the son including his half share in the mortgaged properties on the ground of the pious obligation of the son to discharge the debts of his father. The suit mortgage provided a period of three years for payment and the suit is within six years from the expiry of that period. Hence if the mortgage is supported by consideration, the plaintiff would be entitled to a decree not on the foot of the mortgage, but treating the document as a simple money bond. This leads us to the question whether the view of the lower appellate Court that the onus of proving want of consideration is upon the son is justified by the authorities. The lower appellate Court relied on the recent decision of the Judicial Committee in Thakur Bhagwan Singh v. Bishambar Math (1940) 2 M.L.J. 452. Until this decision of the Judicial Committee, it was uniformly held by this and the other Courts that in such cases the onus of proving both consideration and necessity lay upon the creditor if he wanted to proceed against the son. It is only where a debt of the father is proved that the theory of pious obligation entitling the creditor to a decree against the joint family property in the hands of the son comes in.
3. It is said, however, that the decision just cited makes a departure and that the earlier decisions must be taken to have been wrongly decided. There is a later decision of a single Judge of this Court in Sriramulu v. Thandava Krishnayya : AIR1943Mad77 . In that case Abdur Rahman, J., held that a mortgagee cannot get a mortgage decree for sale against the son's share unless the plaintiff proves the existence of legal necessity, and that proof of necessity necessarily involves proof of consideration as well. The learned' Judge pointed out that the recital in the mortgage deed by the father that he had received consideration is not enough, for the son in a joint Hindu family does not claim through the father but gets a right by birth and claims independently of the father. Where the transaction is sought to be enforced against the executant or against his legal representatives strictly so-called, the admission of receipt of consideration contained in the document might well fee used both against the executant and against his legal representatives. But as against persons who do not claim through the executant but who claim independently, the 'admission of receipt of consideration is not enough. The correctness of this decision is very seriously contested by appellant's counsel who relied for this purpose solely on the decision of the Judicial Committee mentioned already. It is therefore necessary to consider at some length the facts of the case which went up before the Judicial Committee in Thakur Bhagvan Singh v. Bishambar Math (1940) 2 M.L.J. 452. In that case the mortgage sused upon had its origin a mortage executed by the grandfather oft he first defendant in the year 1892. That mortgage of 1892 recited that there were two promissory notes under which moneys were due to the mortgagee; and that further sums were paid before the Sub-Registrar. The later documents were successive renewals of the mortgage of 1892. The defendants in the suit who were the sons and frandsons of the executant of the mortage of 1892 denied that the mortage sued upon was supported by consideration. They admitted the successive renwals and admitted the fact that the grandfather had excuted the mortage of 1892 that the prior promissory notes recited in that document were true and that some portion of the consideration had bee paid before the Sub-Registrar. They however alleged that the sup paid before the Sub-Registrar was taken back by the mortgagee. The High Court held that the mortgagee had discharged the onus of proving consideration for the document of 1892. The matter went up before the Judicial Committee. While approving of the decision of the High Court that the mortgagee had succeeded in proving that the document of 1892 was fully supported by consideration their Lordships of the Judicial Committee made some observations which are relied upon by the appellant's learned advocate. They said that there was no onus on the part of the creditor to prove consideration for the document of 1892, that the onus of proving want of consideration lay wholly on the son and grandson and that the only burden upon the plaintiff was to prove necessity Mr. Muthukrishna Ayyar, the learned advocate for the respondents, argues that in view of the acceptance by the Privy Council of the finding of the High Court that the creditor had succeeded in proving affirmatively that consideration did pass, the observations relied upon by the other side must be taken to be purely obiter dicta. Apart from it Mr. Muthukrishna Ayyar submits that in that case it was not the suit document that was attacked as not supported by consideration and that it was the original mortgage of 1892 that was attacked as not supported by consideration That the mortgage of 1892 was executed with the recitals as to the prior promlsory notes and that it contained an endorsement of payment made by the Sub-Registrar were admitted The defendants in the suit put forward the case that the money that was paid before the Sub-Registrar was returned. Once the defendants admitted that money was paid before the Sub-Registrar, the onus of proving that it was returned to the creditor was upon the persons who asserted it.
4. Out of Rs. 25,000 the sum secured by the sum secured by the mortgage of 1802, as much as Rs. 18,778-8-0 was paid before the Sub-Registrar and he made the endorsement on the mortgage. The two earlier promissory notes under which Rs. 6,221-8-0 was said to be due were also returned before the Sub-Registrar to the mortgagor This was also endorsed upon the document. The mortgage of 1892 was renewed on the 26th April 1895, then again on the 29th July, 1910 and finally on 17th August, 1924, and the suitwas filed on this last mortgage of 1924. It was pointed out by the Judicial Committee that between August 1912 and January 1917 various payments four in number were made on account of interest due on the mortgage It was under these circumstances that the Judicial Committee said that the onus of proving want of consideration for the original mortgage of 1892 really lay upon the son and granson of the then mortgagor. Nearly three-fourths of the amount was paid before the Sub-Registrar and as pointed out above, where a person attacks that payment on the ground that the amount was taken back by the morteatee, the onus is really upon him to prove it. Then as regards the balance of Rs. 6, 221-8-0 the facts to be remembered are that the mortgage document was renewed thrice for the full sum due under the mortgage of 1892 and that four payments were made towardsinterest--presumablyinterest on the entire sum of Rs. 25,000 between 1912 and 1917. The consideration for the document of 1892 was challenged in a suit filed nearly after 40 years and that after three renewals and after four payments of interests apparently on the full sum between August 1912 and January 1917. 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 amount there was the evidence afforded by the subsequent conduct of the parties and where 40 years after the original transaction, the consideration is challenged, it might well be held that the onus of proving want of consideration is upon the persons who challenged it. I do not think that the decision 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.
5. It is next said by Mr. Narayanaswami Ayyar that the lower appellate Court has accepted the plaintiff's evidence as to consideration. The trial Court found against it and on a fair reading of the judgment of the appellate Judge, it is clear that he rested his judgment solely on what he thought was the onus of proof.
6. I accordingly hold that the appellant must fail, he not having proved consideration against the son. The second appeal is, therefore, dismissed with costs. (No leave).