The burden of proof lies on the mortgagee to prove consideration for the mortgage against the sons of the mortgagor.

( 1 ) THE plaintiff is the appellant. He is the only son of the 1st defendant. Defendants 2 and 3 are alienees of some of the joint family properties from the 1st defendant. The suit was filed for partition and separate possession of a half share. So far as the alienation is concerned, the plaintiff stated that the father, the 1st defendant, was friendly with Veeramma, the mother of defendants 2 and 3, that in order to benefit her, within a few months after the plaintiff s birth, a nominal mortgage, dated 9th December, 1927, was created in favour of her mother, Gangulamma, for a sum of Rs. 600 and that the sale deed, dated 19th June 1933, was executed in favour of defendants 2 and 3 purporting to discharge the mortgage debt. Defendants 2 and 3 contended that both the mortgage deed and the sale deed were binding upon the plaintiff. The District Munsif of Chittoor held that the onus of proving that the alienations made by the 1st defendant are nominal lay upon the plaintiff. He held that Gangulamma was not in a position and had no means to lend the mortgage amount. He also held that as Veeramma was the mistress of the 1st defendant, the mortgage deed was brought into existence within a few months after the plaintiff was born. He accepted the evidence of p. W. 3 in preference to that of D. Ws. 2 and 3 and held that the consideration for the mortgage was not made out. He therefore found that both the mortgage and the sale were only make-believe transactions that had been brought into exisitance with the object of benefiting the mistress of the 1st defendant and decreed the suit with costs.

( 2 ) ON appeal, the District Judge of Chittoor reversed the judgment and decree of the District Munsif. He agreed with the District Munsif that the burden of proof lay on the plaintiff to show that the mortgage deed Exhibit A-2 was a nominal document. He held that he has not discharged the burden and allowed the appeal with costs. The plaintiff has therefore preferred the Second Appeal.

( 3 ) ON a careful consideration of the papers, I am of opinion that the District judge has not addressed his mind to the several questions discussed by the District munsif and a fresh finding should be called for. The District Judge has not discussed the material questions, namely, whether Gangulamma had sufficient means to lend whether Veeramma was the mistress of the 1st defendant and whether the mortgage deed was executed soon after the birth of the plaintiff to benefit her. He also gave no reasons for discrediting the evidence of P. W. 3 upon whom the trial Judge placed great reliance. He also did not discuss, in detail, the evidence of the defendants witnesses or state as to why their evidence should be accepted in preference to the plaintiff s witnesses. As I propose to call for a finding, I do not wish to discuss the evidence. But before calling for a finding i find it necessary that an authoritative ruling should be given by a bench of this Court on the question, upon whom the burden of proof lies whether the mortgage deed is supported by consideration or not.

( 4 ) IN Thakur Bhagawan Singh v. Bishambhar Nath, (1940) 2 M. LJ. 452 (P. C. ). Lord Justice Goddard held that in a suit to enforce a mortgage by a Hindu father against the father and his sons, the onus of proof on the question whether there was consideration or whether the full consideration stated in the mortgage had in fact passed is wholly on the defendants and it is not for the plaintiffs to prove this matter affirmatively. This privy Council decision was distinguished by Abdur Rahman, J. , in Sreeramulu v. Thandavakrishnayya. , (1942) 2 M. L. J. 452.

( 5 ) THE learned Judge held that if the mortgagee wanted to enforce his mortgage as mortgage and to get a decree for sale against the sons interests, he would have to establish that the mortgage had been executed by their father either for legal necessity or for payment of an antecedent debt and that the recitals by the mor