The burden of proof lies with the party making a claim, and implied ratification by a principal can validate acts exceeding an agent's authority.

Sundaram Chetty, J.

1. This second appeal arises out of a suit filed by the plaintiffs, for the recovery of a sum of Rs. 2,999-0-0 (Rupees two thousand nine hundred and ninety-nine) alleged to be due under a mortgage bond (Ex. A) dated 10th July 1929 (after relinquishing a large portion of the sum due for the reason that the hypotheca would not be worth more than the suit amount). Ex. A was executed by defendant 1 through his agent under a power-of-attorney viz., defendant 3 in favour of the deceased Shaik Dawood Rowther for Rs. 2,500 (Rupees two thousand five hundred). The mortgagee died in December 1909. He was the brother of plaintiff 1 and defendant 2, and a cousin of defendant 1. Plaintiffs 2 to 5 are the children of Shaik Dawood Rowther whose widow is plaintiff 6. The claim was resisted by defendant 1, on the ground that Ex. A was executed nominally, without any consideration, for the purpose of defrauding the creditors. The first Court dismissed the plaintiffs suit accepting defendant 1s plea as true, whereas, the lower appellate Court disagreed with the District Munsiffs view and found that Ex. A was executed by defendant 1, not as a benami or colourable transaction, but for real consideration, on account of the share of profits due to Shaik Dawoods branch in the partnership business at Moulmein, which was made over to defendant 1 solely on the occasion of Shaik Dawood going away to India.

2. In this second appeal, the correctness of the finding arrived at by the lower appellate Court is challenged. Is that finding which is substantially one of fact, vitiated by any flaws, which afford reasonable grounds for interference under Section 100, Civil P.C.? The learned Subordinate Judge has dealt with the evidence (oral and documentary) in a careful manner, pointing out the errors and misstatements which have crept in some portions of the District Munsiffs judgment: vide paras. 3 and 10 in the judgment of the lower appellate Court.

3. It is urged by the learned advocate for the appellant that the plaintiffs case sought to be proved at the time of trial was at variance with the plaint allegations as to how the consideration passed for Ex. A, and this change of front must be taken to militate against the truth of the plaintiffs claims. Any variance between the pleading and the proof, would no doubt be a good ground for rejecting the case. The lower appellate Court has given prominent attention to this objection, and observed that there is really no variance, and that the District Munsiff is not correct in his assumption. Turning to the recitals in Ex. A itself, it is extremely difficult to hold that it recites an actual cash loan of a sum of Rs. 3,000 (Rupees three thousand) by defendant 1 from Shaik Dawood Rowther.

4. On the other hand, reference is made to the partnership business at Moulmein, and to the fact of defendant 1 having taken the sum of Rs. 3,000 (Rupees three thousand) out of the profit due to Shaik Dawood Rowther, when he left Moulmein for India enabling defendant 1 to do. the whole business solely at Moulmein. If due regard be had to the particulars of consideration set forth in Ex. A, it cannot be construed as a document reciting the advance of a cash loan to defendant 1, but the reasonable inference is that the share of profits duo to Shaik Dawood Rowther in that partnership business, was treated as the sum borrowed by defendant 1, as the latter was taking over the whole business for himself, on the departure of Shaik Dawood for India. Nor is the allegation in para. 4 of the plaint materially different from the recitals in Ex. A. It is alleged in that paragraph that Ex. A was executed in accordance with the letter Ex. B written by defendant 1 to defendant 2. Defendant 1 was deemed to have become indebted to Shaik Dawood in connexion with some arrangement effected as regards the partnership business at Moulmein and that the suit bond (Ex. A) happened to be executed later on for that liability is in my opin