1. This appeal arises out of an unfortunate litigation. The matter has been before the Courts now four times and this is the fifth time that the questions have been considered judicially, and yet the questions in themselves are neither abstruse nor of unusual difficulty. They are whether two documents, Exhibits I and VI, are binding on the plaintiff. These documents were executed by the guardian of the plaintiff when he was a minor. He has now attained majority. His guardian is dead. The guardian was the plaintiff's natural father and had been appointed the testamentary-guardian of the plaintiff by his adoptive father. That he was an affectionate father and guardian to the plaintiff is stated by the learned Judge and has not been denied before us.
2. Exhibits I and VI purport to have been executed for a total consideration of Rs. 1,575 each. The Munsif in the first instance found that they were valid to the extent of Rs. 1,000 and Rs. 500 respectively. On appeal the Subordinate Judge upheld the validity of both in toto. In Second Appeal 1731 of 1910 the High Court remanded the suit for being retried in the light of their observations. On remand the Subordinate Judge in the judgment under appeal held that they were valid to the extent of Rs. 1,286 and Rs. 1,000 respectively.
3. The question as to whether or not this finding is correct being one of fact, it cannot be reconsidered by us unless it is shown the finding was contrary to law. It is contended for the appellant that the finding was arrived at without there being any evidence to support it and must, therefore, be set aside.
4. The argument for the appellant was that the only ground referred to by the learned Subordinate Judge for the finding that the debts were binding on the minor consisted of recitals in documents to the effect that the debts were for purposes binding upon the minor, and that such recitals are not by themselves any evidence of the truth of the statements contained therein. For this proposition Makundi v. Sarabsukh 6 Aa. 417 : A.W.N. (1884) 144. was cited to us. There it is stated that such a recital in itself is no evidence of necessity as was held by the Privy Council in Raj Lukhee Dabea v Gokool Chunder Chowdhry 3 B.L.R : 57 12 W.R.P.C. 47 : 13 M.I.A. 209 : 2 Suth. P.C.J. 275 : 2 Bar. P.C.J. 518 : 20 Eng. Rep. 529. The decision of the Privy Council does not perhaps go to the extent mentioned in Makundi v Sarabaikh 6 Aa. 417 : A.W.N. (1884) 144. The gist of the Privy Council decision, so far as now relevant, may be gathered from the following portions of the judgment in Raj-Lukhee Dabea v. Gokool Chunder Chowdhry 3 B.L.R : 57 12 W.R.P.C. 47 : 13 M.I.A. 209 : 2 Suth. P.C.J. 275 : 2 Bar. P.C.J. 518 : 20 E R 529. Their Lordships say, 'Then upon what grounds are we to treat this transaction as valid The statement upon the face of the deed of sale is, that the property was sold in order to liquidate the husband's debts.' Then their Lordships set out the recital and then state : Therefore, there is a clear allegation that the transaction , was entered into for the purpose of defraying the debts of the husband, including a particular debt, secured by an instalment bond, and an agreement made in Court, and under the threat of an immediate execution against the zemindaries : though the deed goes on to say, that it was executed for the further purpose of performing the shradh, etc., of their husband at Gya.' It is not easy to see why, if the case so stated were true, there should have been any difficulty in giving far more satisfactory evidence of it than has been given in this suit. There is the reference to an agreement in Court, there is the reference to a threat of execution and to the instalment bond which constituted the debt at least of Narayan Das. These things, if they had any real existence, were presumably capable of being proved. But what has been the course of the litigation The burden of proof was unquestionably on the party seeking to support the transaction, that is, the present respondent. But it is an admitted fact, that in the Court of first instance he gave no evidence in support of the transaction except the deed itself In that state of things the Principal Sudder Ameen very properly decided the issue against him.' In the result their Lord ships held that the Court of first instance was right in holding that the sale by the widows could not be upheld as valid and that the High Court should at the utmost have remanded the case for full consideration and should not have reversed the decision of the first Court. Then we have the case of Sunker Lall v. Juddoobuns Sahaye 9 W.R. 285. The decision was that there was no necessity for a declaratory decree to the effect that the bond was not given, as recited in it for money borrowed by the widow for the performance of the husband's shradh, and the grounds of the decision were that 'it is admitted by the Vakil for the plaintiff, that if the bond had not contained any such statement, a suit could not have been maintained for a declaration that the money was borrowed for the purposes of the widow, and not for any purposes binding upon the husband's estate or upon the heirs of the husband, and it is also admitted in like mariner that the recital in the bond that the money was borrowed for the husband's shradh would be no evidence of the fact in a suit against the heirs of the husband, or in a suit to charge the estate In point of law, therefore, the recital sought to be set aside makes no difference as regards the estate of the husband, or as regards the evidence which would be necessary to prove the fact in a suit against the heirs ' We think, however, that the law relating to the admissibility of the effect of recitals is most accuratly stated in Sikher Chand v. Dulputty Singh Singh 5 C. 363, 5 C.L.R. 374 : 5 Ind. Jur. 200. in the following words : 'The learned Advocate-General has pressed on us that a recital in a deed would be conclusive, or at least satisfactory evidence of a necessity for contracting a debt binding on a minor or a member of a joint family. I am prepared to admit that such a recital is some evidence that the fact recited was present to the minds of the parties to the transaction : and further, that the absence of any such recital in a deed would, probably, make it more difficult for the party on whom the burden of proof lay to establish the existence of a legal necessity. But I cannot accept a mere recital in a deed as evidence sufficient to establish the fact so recited.' We shall proceed on the basis that the recitals relied upon by the learned Judge in this case are not sufficient to prove the necessity for the debts which are the subject-matter of the suit, that they were evidence only of the fact recited having been present to the minds of the parties to the transaction.
5. The learned Pleader for the appellant in these circumstances pressed upon us that there is no proof of two facts which must necessarily be made out before they can be held to be binding against the minor. First, that there was some liability to be discharged at the dates of Exhibits I and VI, and secondly that the liability could not be discharged except by borrowing. Some statements made by the leraned Subordinate Judge in considering the evidence with reference to those debts may not be quite accurate. But we consider that, taking the whole judgment, he proceeded on- the basis that there were certain facts which entitled him to consider that the defendants had made out a prima facie case that these debts were, as a matter of fact, incurred bona fide for purposes which would make them binding on the minor, so that in the absence of some more defininte evidence on the part of the plaintiff the learned Judge was not prepared to hold that the debts were not so binding. The circumstances may be shortly stated as follows :
First, that the guardian was the natural father of the plaintiff and that he was an affectionate father.
Second, that there is one transaction to which I shall refer more fully and which points to the fact that the plaintiff himself considered a good portion of the debt for discharging which Exhibit VI was entered into as having been a binding debt upon himself.
6. That circumstance is evidenced by Exhibits XII and IX. We must refer to the facts in some detail for the purpose of making this clear.
7. Exhibit VI is, as we have already said, for the total amount of Rs. 1,575. This amount was made up of various items one of which was Rs. 500 borrowed for the purpose of discharging Exhibit VII. Exhibit VII was a usufructury mortgage the total consideration for which was Rs. 1,500. It is proved that the plaintiff after attaining majority proceeded on the basis that Exhibit VII was binding upon him. That is proved by the fact that by Exhibit IX he borrowed money for the purpose of paying off Rs. 1,000 out of the total consideration due on Exhibit VII. It is true that the plaintiff tried to explain away the circumstances in which Exhibits IX and XII were executed, but on page 13, paragraph 3 of the judgment under appeal, the learned Judge clearly intimates that he does not accept the plaintiff's explanation of the circumstances referred to in Exhibits XII and IX.
The third fact which has been relied upon, for showing that the burden of proof may be considered to have shifted from the defendants to the plaintiff, is that very soon after the plaintiff had been adopted, a Suit No. 15 of 1896 was instituted for the purpose of establishing his adoption, that litigation was expensive and there were no funds available for carrying on that litigation, and it may well be that the plaintiff's natural father and guardian borrowed certain sums for the purposes of that very necessary suit.
Fourthly, there is the circumstance that many of the debts which were paid off by the consideration borrowed under Exhibits I and VI were originally created in favour of creditors who have no interest in the present litigation. One such creditor who has figured very prominently in the present suit is Vyasachari, the 7th witness for the defence. His debts have been paid off, and the learned Judge disbelieves even his evidence and indicates that Vyasachari was a witness hostile to the defence. His own evidence in chief consists of more or less formal evidence. He had necessarily to be summoned by the defence for the production of the deeds relied upon by the defendants for showing that Exhibits I and VII were executed for purposes binding upon the minor. It is true that Vyasachari says that no enquiries were made before the sums were advanced for the payment off of which Exhibits I and VII were partly executed, and it must be accepted on the evidence that it has not been proved that any such bona fide inquiries were made as would make the bonds binding upon the plaintiff irrespective of their being supported by a valid consideration which would affect the estate. But the Judge was entitled to consider that Vyasachari being the person who was the original creditor and that the recitals being proof of the fact that the matters recited were present to his mind, that it was unlikely that he advanced money on an unstable foundation.
8. All these circumstances taken together seem to us to be sufficient for shifting the burden of proof in regard to the question of the nature with which the Courts below were concerned, especially in view of the onus on the defence in cases of this kind is not always and necessarily very heavy.
9. This appears from Sikher Chand v. Dulputty Singh 5 C. 363 : 5 C.L.R. 374: 5 Ind. Jur. 200. : 'The reason why the onus was thus generally thrown upon the purchaser is explained in Hunoomanpersaud Panday's case 6 M.I.A. 393 : 18 W.R. 81 : Sevestre 253, note : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 Eng. Rep. 147., to be based upon this principle : that the circumstances under which the sale took place, and which made it necessary, must be presumed to be rather within the knowledge of the purchaser than of the minor, who was often quite a child at the time of the transaction : and the same reason was given by the Court in Syud Lootf Hossein v. Dursun Loll Sahoo 23 W.R. 424., as the sale was made during the minority of the plaintiff, at a time when he could know nothing of the circumstances of the case, it was obligatory on the defendants to prove, that when the original loan was taken from the widow, it was taken for the benefit of the infant. This rule, however, is not always applicable : see Oomed Rai v. Heeralal 6 S.D.R.N.W.P. 618, referred to by the Privy Council in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81 : Sevestre 253, note : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 Eng. Rep. 147. Their Lordships there expressly say, that the question--on whom the onus 'of proof lies in suits brought by an infant to recover property improperly sold or mortgaged,--'is one which is not capable of a general or inflexible answer. The presumption proper to be made, will vary with circumstances, and must be regulated by and dependent on them' '. When the nature of the presumption is, therefore, to be considered and especially when the provision of Section 114 of the Indian Evidence Act is made to bear upon this presumption, and when the circumstances to which we have above alluded are considered, it seems to me that it would be a bold step for us to take, sitting in second appeal to hold that the learned Judge was wrong' in holding that the debts were binding upon the minor to the extent he has held We might further illustrate our meaning by a reference to a case decided by the Privy Council and reported as bardar Kirpal Singh v. Balwant Singh 17 Ind. Cas. 666 : 24. M.L.J. 318 : 13 M.L.T. 5 : 11 A.L.J. 1 : 9 P.W.R. 1913 : (1913) M.W.N. 58 : 17 Cri.L.J. 137 : 15 B.L.R. 79 : 17 C.W.N.302 : 28 P.L.R. 1913 : 26 P.R. 1913 : 40 Ca. 288. Their lordships were in that case dealing with the question whether the plaintiffs could set aside a sale by their father on the ground that the sale was for immoral debts Their Lordships there stated as it has been frequently held that the burden of proving immorality is on the sons : but they refer to the fact that there was general evidence of the father being recklessly extravagant and speak of that fact as having 'an important bearing on the question of necessity.' The question whether the onus has been shifted is in any particular case, of course, a question of fact. In the case now before us we are of opinion that there were sufficient materials on which the Judge might have asked the plaintiff to give evidence of such facts as would show that the general inference that might fairly be made from the circumstances to which we have referred ought not to be drawn in this case and that the debts should be held to have been borrowed without detriment by his guardian, i. e., natural father Under these circumstances we see no reason to interfere with the main decision in second appeal.
10. It has been conceded, however, in regard to one matter that the decree of the lower Court must be modified. The plaintiff has under that decree been awarded mesne profits, but on the other hand has been required to give interest on Rs. 1,000 in regard to Exhibit VI and Rs. 1,286 in regards to Exhibit I at the rate of 12 per cent. The questions as to what was the proper allowance for mesne profits and as to the proper amount of interest to be allowed are no doubt matters of discretion and we should be slow to interfere in matters of that kind. But we think in the present case that the learned Vakil for the respondents has rightly conceded that the decision could not be allowed to stand. For mesne profits and interest in the present case must necessarily be taken as having a certain relationship to each other : Exhibits I and VI being usufructuary mortgages. It must be taken that the usufruct of the lands, in other words the mesne profits, represented the equivalent of the interest on the amounts borrowed under Exhibits I And VI respectively. Therefore it would have been proper to proceed on the basis that such an amount of interest payable by the plaintiff should have the same proposition.
11. In other words the defendant will have a set off of 1286/1575 of the mesne profits of the lands referred to in Exhibit I and 1000/1575 of the mesne profits of the lands referred to in Exhibit VI.
12. With this alteration Second Appeal No. 2494 is dismissed with costs.
13. With reference to Second Appeal No. 2495 of 1912 our attention has been drawn to the fact that a portion of the consideration for Exhibit I consists of items that ought not to be allowed. Exhibit I was executed on the 13th Juno 1906. Its consideration purports to have been borrowed. For the payment off of Exhibits II, IV, IVA and V, a sum of Rs. 59 borrowed on a promissory note and stamp and registration fees amounting to Rs. 25. But the learned Judge has accepted only that portion of the consideration for Exhibit I which was for payment off of Exhibits II IVA and V. A : portion of consideration for Exhibit II was borrowed for the purpose of payment off of Exhibit IIIA and IIIF, both of which were promissory notes. It is contended that the consideration for Exhibit III A namely, Rs. 175, was a debt which was barred and which should not have been paid off out of the sums borrowed under Exhibit II. We are not prepared to say that the learned Judge was wrong in holding that Exhibit I was valid to the extent that Exhibit II had to be paid off under Exhibit I by reason of the fact that it was not for him to inquire with too great a scrutiny into every item which may have made up the consideration for Exhibit II. The real question for the learned Judge was whether Exhibit I was binding and if a great portion of the consideration for Exhibit I was satisfactorily proved, we are not prepared to say that he may not proceed on the basis that, other portions of the debts recited in Exhibit I were genuine, unless there is something clearly showing that they were not genuine. Each case must be considered with reference to all the facts and when a document executed in 1906 has to be scrutinized in a suit instituted in 1908 with a reference to transactions of 1898, it may be a more satisfactory basis to proceed on the general probabilities of the case and all the circumstances than on the basis that a strict proof must be adduced by the defence with reference to every rupee making up the consideration for the debt claimed.
14. The decree in this case will be modified with reference to the mesne profits and interest.
15. I have omitted to refer to Exhibits III F and IVA, III F is a promissory note to Srinivasachary for Rs. 176-9-0. It purports to have been executed for the purpose of paying off some kist and it is found that the kist was, as a matter of fact, paid out of funds in the Court. It also purports to be borrowed for the educational expenses of the plaintiff. Exhibit IVA is executed in favour of one Swaminatha Iyer and purports to be for discharging the debt due to Vyasachari and for the payment of kist, and the remarks that I have made as regard III A apply to Exhibits IIIF and IVA.
16. Second Appeal No. 2495 of 1912 will also be dismissed with costs, but the order as regards mesne profits will be varied as stated in Second Appeal No. 2494.
17. The time for redemption will be extended by one month from the re-opening of the Court after the vacation.
18. In conclusion we must refer to the careful tabular statement prepared by the learned junior Vakil appearing for the appellant which has greatly facilitated the disposal of the appeal.