9911796707
TMI Blog1940 (5) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... 1892, whereby Durjan Sal, the father of appellant 1 and great-grandfather of appellants 2 and 3, had mortgaged some of his ancestral lands to one Bhoraj, the father of respondent 4, for ₹ 25,000. The consideration for the mortgage is stated in the deed to be the discharge of two promissory notes with interest amounting to ₹ 6221-8-0 and ₹ 18,778-8-0 cash, for payment of a debt due under a bond. 2. On the same day the mortgagor executed a bond for ₹ 2000 payable in two years in favour of the mortgagee. This mortgage was renewed on 26th April 1895, again on 29th July 1910 and finally on 17th August 1924 by the mortgagee which is the subject of the present suit. The execution and completion of the original mortgage and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issory notes and that there was no consideration for the bond for ₹ 2000, and there was thus a failure of consideration to the extent of those two sums. He accordingly granted a decree for the amount of the principal and interest less these two sums, and, having recalculated the interest, he deducted in all ₹ 25,488. On this point the High Court reversed the learned Subordinate Judge and granted a decree for the full amount claimed. Now there seems to have been some misunderstanding as to the onus of proof in this case. In their judgment the High Court said: We are of opinion that the burden of showing that consideration had passed under the mortgage of 1892 had been discharged by the plaintiffs and the defendants did not prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they gave for so doing as it is obvious that no reliance could be placed upon it. So far as the fictitious character of the two promissory notes was concerned, there was really no evidence of this at all, but the learned Subordinate Judge appears to have based his findings on certain circumstances which appeared to him suspicious and which need not be set out in detail because even if they gave rise to suspicion there was no evidence which would justify a finding that the sums secured by the notes had not in fact been paid. Ganesh Prasad's evidence having been rejected as untrustworthy there was nothing left in the case, and it was really unnecessary for the plaintiffs to have called any evidence on the issue as to consideration, for, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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