The main legal point established in the judgment is the application of the Evidence Act, Section 68, and the Madras Agriculturists Relief Act in determining the truth of the plaintiff's story and the binding character of the mortgage on the second defendant's share.

Varadachariar, J.

1. The second defendant appeals against a preliminary decree for sale passed by the lower Court on foot of a mortgage-deed (Ex. A) executed on 10th March, 1926, by the first defendant for himself and as guardian of his then minor son the second defendant. The mortgage deed had been executed to secure repayment of a sum of Rs. 10,000 made up of Rs. 2,429-3-3 then due to the plaintiff himself on promissory notes that had been executed by the first defendant and of a sum of Rs. 7,570-12-9 recited to have been received in cash by the first defendant for discharging debts that had been contracted by him from others. The first defendant contended that Ex. A was supported by consideration only to the extent of Rs. 2,429-3-3 and that as regards the balance, the statement of cash payment in Ex. A was not true and that the understanding between the parties was that the document should serve as security for any amounts for which the plaintiff might ultimately become liable in connection with loans which the parties intended to borrow for the benefit of the first defendant, with the plaintiff standing as surety therefor. The second defendant who had attained majority by the date of the suit contended that even as regards the sum of Rs. 2,429-3-3, there was no genuine or binding debt and that in any event the mortgage was not binding upon his share in the family property. At a later stage, a further question was raised by an additional issue, namely, whether the mortgage-deed has been duly attested.

2. The learned Subordinate Judge held that the bond had been duly attested and that the sum of Rs. 10,000 had been paid as recited in the document and that the cash payment of Rs. 7,570-12-9 paid by the plaintiff to the first defendant at the time of Ex. A had been utilised for discharge of antecedent debts due by the first defendant to other creditors. He accordingly passed a preliminary decree for the sale of the mortgaged property. Before us, the lower Courts finding on the question, of attestation has not been challenged nor has any objection been taken to the binding character of the mortgage so far as it related to the sum of Rs. 2,429-3-3 found to be due from the first defendant to the plaintiff on the date of Ex. A.

3. The learned Counsel for the appellant has directed his arguments mainly to the question of the truth of the plaintiffs story as to the cash advance of Rs. 7,570-12-9 and as to the application of this sum in the discharge of antecedent debts by the first defendant. The decision of both these questions rests to a certain extent on the appreciation of oral evidence. The onus of proof is, of course, on the plaintiff, so far at any rate as he seeks to hold the second defendants share in the property liable under the mortgage. Besides examining himself, the plaintiff has examined a number of witnesses, some of whom prove that a portion of the money required to be advanced under Ex. A was borrowed from them by the plaintiff just prior to Ex. A and the rest claim to be creditors of the first defendant whose debts were discharged out of the moneys borrowed by the first defendant under Ex. A. As against this body of evidence, there is, on the other side, only the testimony of the first defendant who has shown himself to be a very unreliable witness.

4. There are three documents in the case, besides Ex. A, which lend considerable support to the plaintiffs case. Exs. D and E are two promissory notes executed by the plaintiff on 8th March, 1926, in favour of certain relatives of his and it is the plaintiffs case that as he had not on hand at the time the whole amount required to be advanced under Ex. A, he borrowed part of the amount under these promissory notes. That these notes cannot be a later fabrication is shown by the fact that the first defendant has himself attested them and when confronted with them in the box, the first defendant did not impeach their genuineness. These notes recite in terms that the m