1. The only question involved in this appeal is whether the mortgage of the 9th August 1S89 (Exhibit C in the case) in favour of the plaintiff is supported by consideration. Both the lower Courts have found that issue in the affirmative. But it has been argued before us on behalf of the appellants that the decisions of the lower Courts are erroneous in law.
2. Mr. Rangachariar argued in the first instance that the lower Courts erred in permitting the plaintiff to prove and rely upon the acknowledgment of receipt of consideration contained in Exhibit C to which document the 2nd defendant was not a party. He relied upon Brajeshware Peskakar v. Budhanuddi I.L.R. (1880) C. 268 Manohar Singh v. Sumitra Kuar (1907) 5 C.L.J. 653 Ghurphekni v. Purmeshar Dayal Dubey I.L.R. (1895) All.428 and Bisheswar Dayal v. Harbans Sahay (1907) Cri.L.J. 659 which decisions, he contended, laid down that a recital of payment, though it may bind a party to the document containing the recital, will not be evidence against the appellant because he was not a party to the document. We cannot accede to this argument. Sections 17 and 21 of the Evidence Act seem to us to provide for the point in question. An acknowledgment of receipt of consideration is, under the circumstances we are considering, clearly such a statement as is defined as an admission in Section 17; and Section 21 provides that an admission so defined is relevant and may be proved not only as against the person who makes it, but also his representative in interest. Mr. Rangachariar could not deny that the appellant was a representative in interest of the person who made the admission. We therefore think that the lower courts were right in permitting the acknowledgment to be proved as against the appellant.
3. The next point taken was that the lower Courts erred in shifting the burden of showing want of consideration on to the second defendant after the acknowledgment of receipt of consideration contained in Exhibit C had been proved. Reliance was placed on Lalak Singh v. Ajudhia Prasad (1912) 10 All. L.J. 108 where it is stated as follows: 'The burden of proof in such a case is primarily on the plaintiffs to establish payment of consideration, and as against the transferee who was no party to the bond and had no sufficient knowledge of the circumstances under which it was executed, that admission is of very little value, and in our opinion is insufficient to shift the burden of proof on to the defendant-transferee.' Did the learned Judges who decided that case intend to lay it down as a proposition of law that the burden of proving consideration can in no case be discharged and shifted merely by proof of the acknowledgment of receipt of consideration? We are not prepared to say that they intended to do so. But if they did, we must with deference express dissent from that proposition.
4. It seems to us that it is impossible to lay down in broad terms as a proposition of law that, after a person on whom the burden of proof lies has adduced any specific piece of evidence,--such as acknowledgment of the receipt of consideration--the burden of proof is not shifted from him. Whether a specific piece of evidence is enough for discharging the burden of proof is a question primarily concerned with the weight to be given to that piece of evidence and is not a question of law. In this connection it may not be out of place to point out, what has often been pointed out before, that, where each party has adduced evidence tending respectively to prove and disprove a fact in issue, in such cases the importance of the incidence of the burden of proof disappears almost entirely. See Hall v. Venkatakrishna I.L.R. (1889) M.394 Mehdi Hasan Khan v. Sri Mandir Dass 17 C.W.N.49 cited in Kuram Krishnamachariar v. Veeranelly Krishnamachariar : (1913)24MLJ517 . It must seldom happen, especially in view of Section 114 of the Evidence Act, that the acknowledgment of payment is the only matter which the court can consider in coming to a conclusion whether or not consideration passed. Even if the proof of the recital is the only formal evidence adduced, the circumstances surrounding the transaction in question, the relationship of the parties to the suit and various other matters would affect the weight to be given to the acknowledgment. Hence, it may be that in some cases not only would proof of acknowledgment be sufficient to shift the burden, but would be held sufficient to counterbalance a great deal of other evidence produced against the contention that consideration passed, if such evidence does not favourably impress the judge before whom it is tendered. On the other hand, the circumstances may be such as to make the judge disinclined to attach any weight to the acknowledgment. It seems to us material in this connection to advert to Section 3 of the Evidence Act where it is stated when a fact should be said to be proved, disproved, or not proved, respectively:
A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
A fact is said not to be proved when it is neither proved nor disproved.
5. It is impossible, therefore, in our opinion, to state broadly either that the m ere proof of acknowledgment or receipt of consideration must necessarily shift the burden of proof or must, if taken by itself, always necessarily be insufficient to so shift the burden of proof.
6. The second point taken on behalf of the appellants was that, apart from the question of the burden of proof, and even assuming that it rested on the defendants, on the facts found by the learned Subordinate Judge, the irresistible legal inference was that no consideration had passed.
7. Their Lordships then discuss the evidence.
8. Taking all the circumstances together, it seems to us that the lower courts were right in proceeding on the basis that there was consideration for Exhibit C and in passing a decree on that footing.
9. The Second Appeal will be dismissed with costs.