The burden of proof lies on the executant of a document to prove want of consideration for a mortgage, and recitals in a document create a prima facie case, shifting the burden to the defendant to adduce evidence.

Anantakrishna Ayyar, J.

1. The plaintiff is the appellant in this second appeal. He sued to recover money due on a registered hypothecation bond, dated 23rd December 1910, Ex. A, executed by defendant ls paternal grandfather, Karuppa Goundan. The plea of defendant 1 was that the document sued on was not supported by consideration and that it was executed to spite defendant 1, and the particular reason for spiting defendant 1 was mentioned in the written statement and I do not think it necessary to mention the reason in this judgment. Issue 1 raised in the case was whether the mortgage sued on was true and supported by consideration. It was admitted that the property which was mortgaged to the plaintiff was the ancestral property of Karuppa Goundan, the mortgagor, and that defendant 1, as a coparcener, was also interested in that property. It is also admitted that defendant 1 was a major at that time. During the trial in the first Court the question arose as to the onus of proof. The District Munsif held that the onus of proof was on defendant 1, because the execution of the mortgage was proved and because there was an admission by the paternal grandfather of defendant 1 that the consideration was received. In considering the evidence in the case the learned District Munsif observed in para. 7 of his judgment that apart from the ipsa dixit of the plaintiff as P.W. 1 there was no clear proof that consideration passed for the mortgage. But holding that the onus was upon the defendant to prove want of consideration he decided issue 1 in favour of the plaintiff.

2. In the result however he dismissed the suit on the ground that the plaintiffs claim was barred by limitation, because in his view an acknowledgment by a mortgagor in a benami sale deed executed by him in favour of a third person of the existence and binding nature of the mortgage was not in law a proper acknowledgment of liability within the meaning of Section 19, Lim. Act. The plaintiff preferred an appeal, and on appeal the learned Subordinate Judge came to the conclusion that the District Munsif was wrong in his view on the question of limitation and I think he was right. In considering whether a particular document amounts to a proper acknowledgment within the meaning of Section 19, Lim. Act, all that one has to see is whether the document contains an acknowledgment of liability in respect of the debt now sued upon. The circumstance that the acknowledgment was contained in a sale deed executed by the debtor which was not to take effect at all or executed with an ulterior motive is not a relevant consideration in connexion with the question arising under the Limitation Act I therefore agree with the learned Subordinate Judge that the District Munsif was wrong in his view about limitation.

3. The learned Subordinate Judge, however, confirmed the District Munsifs decree dismissing the suit on the ground that the mortgage-bond, Ex. A, was not supported by consideration. The learned advocate for the appellant urged that the lower appellate Courts view on the question of onus of proof was not correct, because in para. 3 of its judgment the lower appellate Court stated by saying:

The burden is cartainly upon the plaintiff to show that the document is supported by consideration.

4. My attention was also drawn to a very recent case decided by Ramesam, J., and Jackson, J., Appeal No. 95 of 1925: Raghavendra Rao v. Venkataswami Naicken A.I.R. 1930 Mad. 251, where their Lordships disagreed with the view expressed by Spencer, J. in the case of Kumarappan Chetti v. Narayana Chettiar [1916] 35 I.C. 455 where that learned Judge decided in similar circumstances that with reference to subsequent mortgagees the onus of proving consideration for a prior mortgage was on the prior mortgagee who instituted a suit to realize moneys due on his mortgage. It was urged accordingly that the lower appellate Courts view apparently based on the decision in Kumarappan Chettiar V. Narayana Chettia