The main legal point established in the judgment is that the execution of the hypothecation bond was found to be with substantial consideration and good faith, and the application of Section 53 Transfer of Property Act was not applicable.

Oldfield, J.

1. On the merits the question in this appeal is whether Ex. E, an hypothecation bond in favour of plaintiff appellant by the widows of two partners, Muthu and Raman Chetty, as guardians of 1st to 4th defendants, their minor sons, is without consideration and merely colourable or was executed in the words of Section 53 Transfer of Property Act with intent to defeat or delay creditors.

2. The undisputed circumstances are that Ex. E hypothecates for its full value all the immoveable property of 1st to 4th defendants; that plaintiff is the brother of one executant the widow of Muthiah Chetty; and that of the four other creditors of the firm, whose debts plaintiff was to pay as part of the consideration, one is a dayadi of plaintiff and a cousin of the widow of Raman Chetty and another is plaintiffs partner and nephew. Plaintiff had been an agent of the firm and knew that it had been declining in prosperity since the death of Raman. Chetty in 1909. Ex. E moreover was executed just after 5th to 15th defendants, the contesting respondents, other creditors of the firm, who eventually obtained a decree against it for a little over Rs. 30,000, interest, and costs had at an earlier stage in their suit obtained a conditional order of attachment before judgment, of which plaintiff and the creditors may be supposed to have been aware, although the attachment was never actually made and, it may be added, is not relied on as invalidating this alienation. On these facts there is no doubt that the lower court was justified in imposing the burden of proof of the substantial character and good faith of Ex. E. on plaintiff.

3. That however did not entitle the lower court to require him, as it has done in respect of the greater part <3f the consideration and on other parts of the case, to discharge that burden with unreasonable strictness or to criticise his attempts to do so perversely. When for instance he had produced in support of Rs. 14, 300 which he was to pay to four creditors of the firm, entries in the firms accounts, it was not justified in saying that, although these entries show that plaintiff and the others were entitled to money from the firm, it did not. follow that they were so on the date of Ex. E. For in the absence of evidence of discharge the proved indebtedness at a comparatively recent date would presumably still be existing. Nor, when plaintiff admitted that his father had transactions with himself and 1-4th defendants firm, was it reasonable, when no specific suggestion was made to him, to assume that the debt due to him might have been adjusted by transactions with his father and to refuse to reach a conclusion in his favour, because the possibility of such adjustment was not excluded by his evidence.

4. The accounts relied on by plaintiff were those of 1st to 4th defendants and the different debts were proved by them and by plaintiff and 1st to 4th P. Ws. Comment was made on the fact that the day books from 13-4-1904 to 13-1-1906 (Exh. J.) were missing. But no reason shown for attaching any special significance to this and after the latter date the account was continued on the footing that the debts were still outstanding. Item 2 due to V.E.S. Subramaniam Chetty is cupported by numerous entries ; but there is none relating to it between 1906 and 1910, although there is none indicating its discharge in the interval. Item 5 due to K.S.S. Kasi Rama-natha Chetty was subject to interest at quarterly rests ; but no such rests are entered and there are in fact no entries of interest from fasli 1308 to 1310. No attempt however was made in cross examination to see whether any explanation was available on these points and they therefore cannot be considered now. The last named creditor accounted rather indistinctly for the manner, in which his debt was transferred in the accounts from the name of his wife and mother to his own ; but that goes no way towards showing that it was not due at all. No more serious objecti