The onus of proving want of consideration for a mortgage executed by the father of an undivided son of a joint Hindu family lies upon the son, and the proof of legal necessity necessarily involves proof of consideration.

Somayya, J.

1. The only question in this second appeal is whether when the father of an undivided son of a joint Hindu family executes a mortgage and the mortgagee brings a suit on it, the onus of proving consideration for the mortgage is on the mortgagee or whether it is for the son to prove want of consideration. The suit mortgage was executed by the father of the first defendant and the suit was filed against the son, the first defendant, and the second defendant a subsequent mortgagee. The son denied consideration as well as necessity for the mortgage. Both the points were found by the trial Court against the plaintiff and the suit was dismissed. On appeal, the Subordinate Judge agreed with the District Munsiff in holding that there was no necessity for the mortgage but he gave a decree against the executants half share in the suit property. On the question of consideration he held that the onus of proving want of consideration is upon the son, the first defendant, and that he did not discharge it. It was also found that there was no necessity or antecedent debt to support the mortgage against the sons share. The Subordinate Judge gave a decree against the fathers half share in the hands of the son, and there is no appeal against it.

2. In second appeal filed by the creditor it is argued that he is entitled to a decree against all the joint family properties in the hands of the son including his half share in the mortgaged properties on the ground of the pious obligation of the son to discharge the debts of his father. The suit mortgage provided a period of three years for payment and the suit is within six years from the expiry of that period. Hence if the mortgage is supported by consideration, the plaintiff would be entitled to a decree not on the foot of the mortgage, but treating the document as a simple money bond. This leads us to the question whether the view of the lower appellate Court that the onus of proving want of consideration is upon the son is justified by the authorities. The lower appellate Court relied on the recent decision of the Judicial Committee in Thakur Bhagwan Singh v. Bishambar Math (1940) 2 M.L.J. 452. Until this decision of the Judicial Committee, it was uniformly held by this and the other Courts that in such cases the onus of proving both consideration and necessity lay upon the creditor if he wanted to proceed against the son. It is only where a debt of the father is proved that the theory of pious obligation entitling the creditor to a decree against the joint family property in the hands of the son comes in.

3. It is said, however, that the decision just cited makes a departure and that the earlier decisions must be taken to have been wrongly decided. There is a later decision of a single Judge of this Court in Sriramulu v. Thandava Krishnayya AIR1943Mad77 . In that case Abdur Rahman, J., held that a mortgagee cannot get a mortgage decree for sale against the sons share unless the plaintiff proves the existence of legal necessity, and that proof of necessity necessarily involves proof of consideration as well. The learned" Judge pointed out that the recital in the mortgage deed by the father that he had received consideration is not enough, for the son in a joint Hindu family does not claim through the father but gets a right by birth and claims independently of the father. Where the transaction is sought to be enforced against the executant or against his legal representatives strictly so-called, the admission of receipt of consideration contained in the document might well fee used both against the executant and against his legal representatives. But as against persons who do not claim through the executant but who claim independently, the admission of receipt of consideration is not enough. The correctness of this decision is very seriously contested by appellants counsel who relied for this purpose solely on the decision of the Judicial Committee mentioned already. It is therefo