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Mariappa Koundan Vs. Palaniappa Goundan and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in125Ind.Cas.68
AppellantMariappa Koundan
RespondentPalaniappa Goundan and ors.
Cases ReferredEhtisham Ali v. Jamna Prasad
Excerpt:
limitation act (ix of 1008), section 19 - acknowledgment in benami sale-deed, whether effective--mortgage--consideration--burden of proof. - .....455, where that learned judge decided in similar circumstances that with reference to subsequent mortgagees the onus of proving consideration, for a prior mortgage was on the prior mortgagee who instituted a suit to realise monies due on his mortgage. it was urged accordingly that the lower appellate court's view apparently based on the decision in kumarappan chettiar v. narayana chettiar 35 ind. cas. 455, is not sustainable having regard to the recent decision in raghavendra rao v. venkataswami naiekan : air1930mad251 , referred to. on reading the leading judgment delivered by ramesam, j., in that appeal i find that the learned judge disagreed with the reasoning of spencer, j., in the case referred to above. the judgment contains a statement of the principles which have to be kept in.....
Judgment:

Anantakrishna Iyer, J.

1. The plaintiff is the appellant in this second appeal. He sued to recover money due on a registered hypothecation bond, dated 23rd December, 1910, Ex. A, executed by the 1st defendant's paternal grandfather, Karuppa Goundan. The plea of the 1st defendant was that the document sued on was not supported by consideration and that it was executed to spite the 1st defendant and the particular reason for spiting the 1st defendant was mentioned in the written statement and I do not think it necessary to mention the reason in this judgment. The first issue raised in the case was whether the mortgage sued on was true and supported by consideration. It was admitted that the property which was mortgaged to the plaintiff was the ancestral property of Karuppa Goundan, the mortgagor, and that the 1st defendant, as a co-parcener, was also interested in that property. It is also admitted that the 1st defendant was a major at that time. Daring the trial in the first Court the question arose as to the ouns of proof. The District Munsif held that the onus of proof was on the 1st defendant, because the execution of the mortgage was proved and because there was an admission, by the paternal grandfather of the 1st defendant, that the consideration was received. In considering the evidence in the case the learned District Munsif observed in para. 7 of his judgment that apart from the ipse eixit of the plaintiff as P.W. No. 1 there was no clear proof that consideration passed for the mortgage. But holding that the onus was upon the defendant to prove want of consideration he decided issue No. 1 in favour of the plaintiff. In the result, however, he dismissed the suit on the ground that the plaintiff's claim was barred by limitation, because in his view an acknowledgment by a mortgagor in a benami sale-deed executed by him in favour of a third person of the existence and binding nature of the mortgage was not in law a proper acknowledgment of liability within the meaning of Section 19 of the Limitation Act. The plaintiff preferred an appeal, and on appeal the learned Subordinate Judge came to the conclusion that the District Munsif was wrong in his view on the question of limitation and I think he was right. In considering whether a particular document amounts to a proper acknowledgment within the meaning of Section 19 of the Limitation Act all that one has to see is whether the document contains an acknowledgment of liability in respect of the debt now sued upon. The circumstance that the acknowledgment was contained in a sale-deed executed by the debtor which was not to take effect at all or was executed with an ulterior motive is not a relevant consideration in connection with the question arising under the Limitation Act. I, therefore, agree with the learned Subordinate Judge that the District Munsif was wrong in his view about limitation.

2. The learned Subordinate Judge, however, confirmed the District Munsif's decree dismissing the suit on the ground that the mortgage-bond, Ex. A, was not supported by consideration. The learned Advocate for the appellant urged that the lower Appellate Court's view on the question of onus of proof was not correct, because in para. 3 of its judgment the lower Appellate Court stated by saying 'The burden is certainly upon the plaintiff to show that the document is supported by consideration'. My attention was also drawn to a very recent case decided by Justice Ramesam and Justice Jackson, Appeal No. 95 of 1925 Raghatendra Rao v. Venkataswami Naickan : AIR1930Mad251 , where their Lordships disagreed with the view expressed by Justice Spencer in the case of Kumarappan Chetti v. Narayana Chettiar 35 Ind. Cas. 455, where that learned Judge decided in similar circumstances that with reference to subsequent mortgagees the onus of proving consideration, for a prior mortgage was on the prior mortgagee who instituted a suit to realise monies due on his mortgage. It was urged accordingly that the lower Appellate Court's view apparently based on the decision in Kumarappan Chettiar v. Narayana Chettiar 35 Ind. Cas. 455, is not sustainable having regard to the recent decision in Raghavendra Rao v. Venkataswami Naiekan : AIR1930Mad251 , referred to. On reading the leading judgment delivered by Ramesam, J., in that appeal I find that the learned Judge disagreed with the reasoning of Spencer, J., in the case referred to above. The judgment contains a statement of the principles which have to be kept in view when considering the question of onus in particular cases. As I understand his Lordship's judgment, it is stated that prima facie the onus of proof of want of consideration will be upon the executant of the document when once execution of the document is proved. Logically, it will also be upon the heir of the executant in similar circumstances to prove that consideration did not pass, because, when the execution is admitted and the document recites and acknowledges payment of consideration, then, if nothing else be known and no further evidence be let in, the mortgagee should succeed. Following the same line of reasoning, his Lordship remarks that in the case of subsequent mortgagees also the same reasoning would ordinarily apply, but what exactly would be the stage in which the burden changes in any particular case, and what exact weight should be attached to other circumstances appearing either in the examination of the plaintiff himself, or other witnesses or otherwise, are not matters on which any invariable rule could be laid down applicable to all cases. His Lordship remarks: 'It seems to me that in general, by which I mean where no other suspicious circumstances appear, the plaintiff by merely proving the execution of the document containing recitals must be taken to have made out a prima facie case and it is for the defendant to meet that case by adducing evidence.' Further in the course of the judgment his Lordship further remarks: 'Recitals in a document may lose their weight on account of other suspicious circumstances surrounding the execution of the document coming out in the evidence, but where there are no such suspicious circumstances I am unable to see how the weight can diminish because the defendant is other than the original executant.' Therefore, the decision in Appeal No. 95 of 1925 Raghavendra Rao v. Venkataswami Naiekan : AIR1930Mad251 , is no justification form reversing the judgment of the lower Appellate Court, unless I am satisfied that the other remarks contained in the judgment of Justice Eamesam do not apply to the case before me. In the first place the defendant is not the heir of the mortgagor (executant); the properties are not the self-acquired properties of Karuppa Goundan, the executant but joint family properties which came to the 1st defendant, a co-parcener by survivorship. It is only with reference to executants and persons claiming under them that the general rule enunciated in that judgment would apply. That is also the provision of law contained in Section 102 of the Evidence Act. I may also refer to the remarks of their Lordships of the Privy Council in Ehtisham Ali v. Jamna Prasad 64 Ind. Cas. 299 : 48 I.A. 365 at p. 372 : 24 C.C. 274 : 15 L.W. 104 : 30 M.L.T. 132 : 9 C.L.J. 71 : 24 Bom. L.R. 675 : A.I.R. 1922 P.C. 56 : 27 C.W.N. 8 : 20 A.L.J. 961 (P.C.). This is what their Lordships say: 'The burden is on him and on people claiming under him to prove that what apparently happened did not happen.' In addition to the fact that the 1st defendant is not the heir of the executant, we have also got some other circumstances appearing in this case. The lower Appellate Court while discussing this question, though it starts with the statement that the burden is certainly on the plaintiff to show that the document is supported by consideration, in the course of the discussion also remarks as follows:

Apart from the onus of proof there is no evidence at all to show the receipt of consideration for Ex. A.

3. The lower Appellate Court first considers the recital in the document to the effect that the whole of the consideration was paid in cash at the time of the execution whereas, the plaintiff himself admitted that Rs. 200 was paid before execution and Rs. 200 after. Again the amount was borrowed for the purpose of paying Guruva Boyan according to the recital in the document. Guruva Boyan has not been examined, no voucher has been produced from him as regards the payment, No doubt, under the terms of the document, Ex. A the plaintiff is not bound to procure any voucher, but the examination of Guruva Boyan would be a circumstance in favour of consideration having passed with reference to Ex. A but he has not been examined. The plaintiff admits that he did not make any inquiry as to whether the mortgagor had any debts or as to the necessity for borrowing. The learned Subordinate Judge also remarks that there is an endorsement on the back of Ex. A dated 22nd October, 1911, reciting a payment of Rs. 50. In the lower Court the plaintiff's Pleader did not rely upon the said endorsement and it is not the case here that the amount was paid at the time. Further, as the learned Subordinate Judge remarks, the circumstance that the 1st defendant's grandfather executed a sale-deed, Ex. B, for Rs. 900 to the 2nd defendant in which certain recitals were made as regards the amount due under Ex. A (the amount being incorrectly given) also tends to show that Ex. A was without consideration. He mentions other circumstances also which throw suspicion on the transaction and there are circumstances which could legitimately be taken into account in finding whether the onus, even if it be on the 1st defendant, had been discharged in the circumstances of the case. It is a well-known principle of law that the question of onus does not matter when both parties have let in their evidence in the case. On the circumstances appearing in the judgment of the lower Appellate Court I cannot say that relevent materials were not available to it to come to the conclusion that the mortgage was not supported by consideration but that the same was executed with a view to spite the 1st defendant. That is the other ground on which the lower Appellate Court justified the dismissal of the suit and as I think that finding is binding upon me in second Appeal I dismiss the second appeal with costs.


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