1. The appellant got a decree against the father of the respondent. During execution proceedings the father died and the respondent was brought on record as his legal representative. He is his undivided son. When the appellant sought to bring certain properties to sale the son claimed that they were his self-acquired properties and so not liable. The executing Court dismissed the claim, but it was allowed in appeal and this second appeal is preferred against that decision.
2. Although the appellant asserted that the property was ancestral the evidence shows, and it is not disputed before me, that it originally belonged to the maternal grandmother of the respondent who assigned it by Ex. A in 1914 to the respondent then a minor, with his father as guardian. But the appellant asserts that the property was thrown into the common stock by the respondent. The onus of proving this is, of course, on the appellant and he relies mainly on the mortgage, Ex. 1, dated 5th August 1921. By this mortgage the land in question together with ancestral property was jointly mortgaged to a third party by the respondent and his father. The respondent executed the deed as a major. He describes himself as the undivided son of his father and says that on account of our necessity'
We have borrowed of you a sum of Rupees 2400. We shall pay interest thereon at As. 12 per cent per mensem and we shall pay the annual interest on this date every year etc.
3. Then we come to the most important part, the description of the property mortgaged. First the ancestral property is described:
We have mortgaged to you under this deed the inam land acquired by our ancestors and which is in our possession and enjoyment as of right.
4. Then comes the description of the property now in dispute as follows:
and the immovable property inclusive of the water sources, wells, tanks, etc., therein specified in para. 3 hereunder and which devolved on Pallamraju of us, through his maternal grandmother Vissapragada Atchamma Garu, and in which we have rights of enjoyment.
5. Later on, alluding to both sets of properties the executants say 'they are in possession and enjoyment as of right without any obstruction whatever.' No statements could be more explicit and it cannot be said that there has been any confusion between the ancestral properties and those of respondent's maternal grandmother, because the document goes out of its way to describe each separately and states distinctly that in the latter also both the executants have rights of enjoyment. No explanation has been offered by the respondent in the box for these admissions, and the learned Sub-Judge has entirely overlooked the fact that, in the absence of any explanation, the onus of proof is at once shifted to the respondent. He merely says with regard to Ex. 1:
The lower Court relied wholly on Ex. 1 and on the fact that during the appellant's minority his father managed the attached properties. But this is not sufficient to draw the inference that the appellant converted his separate property into joint family property.
6. That conflicts with the principle laid down by the Privy Council in Chandra Kunwar v. Chandra Narpat Singh (1907) 29 All 184 . Their Lordships say:
The learned Chief Justice in his judgment points out that the burden of proving that the adoption relied on took place rests on the defendant.
7. That is undoubtedly so, but it is difficult to conceive how she could as against Mukand Singh, prima facie at all events, discharge that burden more effectually than by proving his solemn statement under hand and seal that it did take place. The proof of the admission shifts the burden, because as against the party making it, as Baron Parke says in Slatterie v. Pooley (1840) 6 M & W 664 :
What a party himself admits to be true may reasonably be presumed to be so. No doubt in a case such as this where the defendant is not a party to the deeds and there is therefore no estoppel, the party making the admission may give evidence to rebut the presumption, but unless and until that is satisfactorily done, the fact admitted must be taken to be established.
8. They quote from Hearne v. Rogers (1829) 9 B & C 577, the remark of Bayley, J.:
The express admissions of a party are evidence and strong evidence against him.
9. The learned Sub-Judge goes on to give certain reasons to explain these admissions, reasons which are not given by the respondent himself whose duty it was to give them. He says:
His age was given last year in his petition in the lower Court as 25 years and in his description in his deposition as 28 years. He had just attained majority when Ex. 1 was executed.
10. Now if respondent was relying on his having only just attained majority to explain Ex. 1 it was for him to say so. He never put forward any such plea. All he says by way of explanation is:
I do not remember if may property was separately described in the mortgage deed.
11. Even taking the facts relied on by the learned Sub-Judge as regards his age, what are they? Ex. 1 is dated 5th August 1921. In a petition of 1928 respondent describes himself as 25, which no doubt would make him only 18 at the time of Ex. 1; but in 1928 he described himself as 28 which would make him 21 at the time of Ex. 1. Of what value are contradictory statements like these by the respondent himself as to his age at the time of Ex. 1 and why should one be relied on rather than the other? Then the Court remarks that
although Ex. 1 set out that the attached properties were acquired by him from his maternal grandmother it does not set out how his father along with him had a right to them.
12. He was living as an undivided son with his father in the same house and the father was managing the property. He was also the only son. There would be therefore nothing surprising in his throwing his properties into the joint family; and when he distinctly says in Ex. 1 that they are owned jointly by himself and his father in their own right it is for him to explain this statement. The learned Subordinate Judge is of course correct when he says that the mere fact that the father was managing the properties and enjoying them jointly would not necessarily prove that they were thrown into the common stock, nor would respondent offering his own properties as security for the father's debt do so. But respondent has done far more than this. He has made the father's debt his own, as the document shows, and if he was merely offering his own properties for his father's debt there was no reason at all why he should not have said so in Ex. 1. It did not in the least benefit his father that he should describe the property as belonging to both of them as of right. In this connexion, Mayne's Hindu Law, p. 272, is quoted by the respondent's learned advocate. I do not think it helps him at all. Mayne says:
The question whether he has done so or not (i.e., thrown his property into the joint stock) is entirely one of fact to be decided in the light of all the circumstances of the case; but a clear intention to waive his separate rights must be established and will not be inferred from acts which may have been done merely from kindness or affection.
13. For this last statement Lal Bahadur v. Kanhaiya Lal (1907) 29 All 244 and Suraj Narain v. Ratan Lal AIR 1917 PC 12 are quoted. Those were both cases in which the property was actually held to have been thrown into the common stock except in the latter case a certain part of the property which the member bought in the name of his son-in-law, and they do not at all help the respondent. A ruling not available, Jangi Nath v. Janki Nath (1905) 2 AL J 225, was also mentioned which is quoted in Ramakrishna's Hindu Law, Vol. 1, p. 270. From the description of it in that book the three points which were held not enough to prove that the property had been thrown into the common stock were: (1) joint registry in the revenue accounts; (2) association by the members with his brothers in suits relating to the property; (3) payment out of income of the gifted property to his brothers. None of these things amount to what we have in this case a solemn declaration that the debt has been incurred jointly and that both the sets of properties which are being mortgaged are held jointly as of right by the respondent and his father. The last matter relied on by the learned Sub-Judge consists of unregistered leases counter parts of Ex. B series in 1923 and 1924, which the respondent took of the property from tenants. The best evidence for these documents, that of the tenants who executed them, has not been called and they are documents very easily got up. They may even be genuine, for they are executed two years after Ex. 1 and possibly in order to try and escape the implications of that document and to save the lands from being proceeded against for the father's debts. Besides the respondent the only witness called to these leases says:
I do not know for how much rent Pallaramaraju leased the lands. I do not know about the affairs of father and son.
14. This Court will not interfere in second appeal with a finding of fact for which there is evidence but it is clear in this case that the learned Sub Judge took a wrong view of the law in holding that Ex. 1 did not shift the onus of proof on to the respondent if not explained. There being no explanation offered of it the leases Ex. B are certainly not, under the circumstances, sufficient to discharge the onus now resting on the respondent nor is it in this light that the lower appellate Court has viewed thorn, for it has stated by holding that Ex. 1 is insufficient to discharge the onus resting on the appellant. It has also proceeded to give an explanation for Ex. 1 which it was for the respondent to give, and this explanation, so far as it rests on the respondent, having only just attained majority at the time of Ex. 1, is based on what one must call no evidence at all. I am of opinion therefore that this is a case where the lower appellate Court has gone wrong in its view of the law, and has also erred in setting up a defence for the respondent which it was for him to set up and which defence itself was not based on any evidence. The second appeal is therefore allowed with costs throughout and the order of the District Munsif dismissing the claim will be restored.