The burden of proving want of consideration for a sale deed lies on the person pleading it, even if they are not parties to the deed and do not claim under the executant.

VISWANATHA SASTRI, J.

( 1 ) THIS is an appeal from the decree of the Subordinate judge of Bapatla dismissing a suit filed by two plaintiffs for recovery of Rs. 6,200 with interest from the first defendant personally and the properties of the joint family in his hands. The second defendant, the minor son of the first defendant, got himself impleaded as a party to the suit so as to enable him to contest the claim of the plaintiffs. The first plaintiff is the daughter s son of the and plaintiff the latter being alleged to be a benamidar for the former. The first plaintiff is the appellant before us, the second plaintiff being the 3rd respondent.

( 2 ) ON 22nd February, 1945, the first defendant sold under Exhibit A-1 an ancestral house belonging to himself and his minor son to the 2nd plaintiff for Rs. 4,000. The minor son, the present second defendant brought O. S. No. 56 of 1946 on the file of the Sub-Court, Bapatla, for recovery of possession of the hourse impeaching the sale under Exhibit A-1 as being devoid of consideration and not binding on the joint family, impleading his father and the purchaser as defendants to the suit. The trial Court declared the sale not to be binding on the joint family and ordered it to be cancelled and its decree was affirmed by the District Court on appeal in a. S. No. 189 of 1948. There is good reason to think that the father was behind his minor son in starting and conducting the suit. The present suit was then brought for recovery of Rs. 6,200 and interest as upon a failure of consideration for Exhibit a-1. The suit was dismissed by the Court below on two grounds: (1) that Exhibit a-1 was in fact not supported by consideration and (2) that the finding in the prior litigation that there was no consideration for Exhibit A-1 operated as res judicata. The appellant challenges the correctness of this conclusion. The Advocate for the contesting respondents having reported that he had no instructions to conduct case, we have gone into the evidence fully. The point of res judicta will first be dealt with.

( 3 ) ACCORDING to the Court below there was an adverse decision in the previous litigation to which the second plaintiff was a party, that Exhibit A-1 was not supported by consideration and that though the second plaintiff and first defendant were ranged as co-defendants in that suit, the decision on the issue as to consideration nevertheless operated as res judicata between them. On the admission of the first plaintiff that the second plaintiff, who was a party to the prior litigation, was his benamidar, it must be held that the second plaintiff fully represented him in the prior litigation and the first plaintiff, the person claiming to be beneficially entitled, though not a party, is fully affected by the rule of res judicata. Gurnarain v. Sheo Lal singh, (1918) L. R. 46 LA. 1 : 36 M. L. J. 68 : I. L. R. 46 Cal. 566 (P. C. ). is sufficient authority for the view that a benamidar represents the real owner and a decree obtained against the benamidar binds the real owner. The further question is, what was the decision in the prior litigation that could be relied upon as res judicata. The Court below went wrong in its discussion of this point. It is true that in trial Court evidence was adduced and a decision was given on the issue as to the existence of consideration for Exhibit A-1 and the decision was adverse to the present and plaintiff, the benamidar. But then the matter went up on appeal. The appeal destroyed the finality of the judgment of the trial Court and the appellate judgment superseded that of the trial Court. It is the appellate judgment that has to be looked to determine the question of res judicata. Annamalai v. Thorn- hill, (1931) 61 M. L. J. 420 (P. C. ). Sheosagar v. Sitaram, (1897) I. L. R. 24 Cal. 616 : L. R. 24 LA. 50 (P. C. ). Abdullah v. Ganesh Das, (1917) i. L. R. 45 Cal. 442 ; L,r. 44 LA. 213 : 34 M. L. J. 12 (P. C. ). Now the appellate Court rested its conclusion not on t

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