V.D. Bhargava, J. - (1.) THIS is a Plaintiffs' appeal in a suit based on a mortgage. The mortgage was executed for a sum of Rs. 700 on 1 -5 -1938. Ved Prakash was one of the executants and after his death Defendants Nos. 1 to 4 are his heirs. Defendants Nos. 3 and 6 had purchased the mortgage property at a court sale. In execution of the simple money decree the mortgage was executed in favour of one Hazari Lal and the present Plaintiffs who are the nephews of Hazari Lal are his heirs. Hazari Lal had left neither a male issue nor a widow.
(2.) THE suit was mainly contested by Defendants Nos. 5 and 6, the auction purchasers, and the ground on which it was challenged was that the mortgage had not been validly executed and there was no consideration for the mortgage and the document was Farzi. Both the courts have held that so far as the mortgage was concerned, it was executed by the executants but they have differed on the question of consideration. The first court came to the conclusion that the document was executed for consideration. But the lower appellate court had come to a finding that the document was not for consideration. Ordinarily this would have been a finding of fact binding upon me in a second appeal. But this finding had been arrived at from a wholly wrong approach from the point of view of burden of proof. The first court had rightly placed the burden of proving the want of consideration on the Defendants but the lower appellate court had held otherwise. It has remarked: It was for the Plaintiffs to prove the consideration of the mortgage deed but the lower court seems to have shifted the burden on the auction purchasers to prove that the mortgage was without consideration. This was again a wrong method leading to a wrong conclusion. The lower court seems to have considered only the defence evidence on this question although in my opinion it was exclusively the job of the Plaintiffs to prove that the mortgage deed was executed for consideration mentioned in it. The mere fact that a certain figure is given out in a deed is not a proof that that sum was really advanced.
(3.) FOR the proposition of law that the burden had wrongly been placed learned Counsel for the Appellants has relied on the case of Babu v. Sita Ram and Drig Pal Singh : ILR 1914 36 All. 478 wherein a Bench consisting of Sir Henry Richards Knight, C.J. and Mr. Justice Tudball held as follows: Where a mortgage deed is proved to have been executed and the document contains an acknowledgment of the receipt of the consideration, this is strong prima facie evidence that the consideration has been actually received and is evidence not only against the mortgagors but also against persons claiming under them subsequent to the date of the mortgage. The mere fact that a court was not satisfied with the evidence, which the Plaintiff adduced in addition to the acknowledgment would not absolve the Defendants from producing evidence that, notwithstanding the acknowledgment in the body of the deed, there was no consideration in fact.;