The defendants are the appellants and the appeal arises out of a suit for recovery of money due on a mortgage bond for Rs. 400 executed on 5th February, 1931, by the first defendant, the father of defendants 2 and 3, in favour of the plaintiff. The trial Court found that the mortgage bond was supported by consideration to the extent of Rs. 75 only and gave a decree for that amount and interest thereon. On appeal by the plaintiffs, the learned District Judge of North Arcot at Vellore holding that the burden of proof was on the defendants following the observations of the Privy Council in Bhagwan Singh v. Bishambar Nath1, held that it is not for the plaintiff to prove affirmatively the passing of the consideration and decreed the suit as prayed for. Hence this second appeal.

It is true in this case evidence was let in by both parties examining a witness each and the case could have been disposed of on that evidence without adverting to the burden of proof. As a matter of fact the trial Court framed the issues as if the burden was on the defendants and evidence was let in on the basis that the burden was on the defendants. So the learned District Judge could have easily disposed of the case on the evidence on record and come to a conclusion with regard to the facts of the case but instead of doing so, he emphasised the fact that the burden was on the defendants stating that “it was really unnecessary for the plaintiff to have called any evidence on the issue as to consideration, since the burden of proof was entirely on the defendants.” Since the judgment of the learned Judge is based on this observation of his, it is necessary to consider how far he was justified in corning to that conclusion. The document was executed only by the first defendant. Neither the second defendant nor the third defendant were parties to that document. It is stated by learned Counsel for the respondent-plaintiff that the third defendant was not born on that date. But the second defendant was born on that date and so far as he is concerned, the burden will be upon the plaintiff to prove the passing of consideration. The headnote in Bhagwati Singh v. Bishambar Nath1 is rather too wide. In that case the consideration for the mortgage bond on which the suit was filed was made up of three items: payment in cash before the Sub-Registrar, the return of two documents and also payment of money in two banks. But it was pleaded that the money paid was taken back. That was the plea of the defendants. Consequently the burden was upon the defendants to prove, on account of the particular facts of that case, that the entire consideration did not pass. That case had to be considered by two Judges of this Court, Abdur Rahman, J., and Somayya, J., by the latter in Muthachi v. Kandasami Muthirian2 and by the former in Sreeramulu v. Thandavakrishnayya3. The facts of the Privy Council case are fully stated by Somayya, J., and as he has written an exhaustive judgment pointing out all the circumstances which led the Privy Council in that particular case to come to the decision at which it arrived, I entirely agree with him. It is unnecessary to repeat the observations of Somayya, J. Agreeing with him I should think the learned District Judge was wrong in having taken the decision of the Privy Council in Bhagwati Singh v. Bishambar Nath1, as one of universal application on the question of burden of proof with regard to all documents irrespective of the facts of the case and basing that finding on that opinion of his. I therefore set aside the decree of the lower appellate Court and remand the appeal for being reconsidered in the light of the observations made above holding that so far as the second defendant is concerned, he being not a party to the document the burden is on the plaintiff to prove consideration. Of course it will be open to the plaintiff to urge in the lower appellate Court that so far as the third defendant is concerned he was born subsequently and