Viswanatha Sastri, J.:-
(1) This is an appeal from the decree of the subordinate judge of bapatla dismissing a suit filed by two plaintiffs for recovery of rs. 6,200 with interest from the first defendant personally and the properties of the joint family in his hands. The second defendant, the minor son of the first defendant, got himself impleaded as a party to the suit so as to enable him to contest the claim of the plaintiffs. The first plaintiff is the daughter's son of the and plaintiff the latter being alleged to be a benamidar for the former. The first plaintiff is the appellant before us, the second plaintiff being the 3rd respondent.
(2) On 22nd february, 1945, the first defendant sold under exhibit a - 1 an ancestral house belonging to himself and his minor son to the 2nd plaintiff for rs. 4,000. The minor son, the present second defendant brought o. S. No. 56 of 1946 on the file of the sub - court, bapatla, for recovery of possession of the hourse impeaching the sale under exhibit a - 1 as being devoid of consideration and not binding on the joint family, impleading his father and the purchaser as defendants to the suit. The trial court declared the sale not to be binding on the joint family and ordered it to be cancelled and its decree was affirmed by the district court on appeal in a. S. No. 189 of 1948. There is good reason to think that the father was behind his minor son in starting and conducting the suit. The present suit was then brought for recovery of rs. 6,200 and interest as upon a failure of consideration for exhibit a - 1. The suit was dismissed by the court below on two grounds: (1) that exhibit a - 1 was in fact not supported by consideration and (2) that the finding in the prior litigation that there was no consideration for exhibit a - 1 operated as res judicata. The appellant challenges the correctness of this conclusion. The advocate for the contesting respondents having reported that he had no instructions to conduct case, we have gone into the evidence fully. The point of res judicta will first be dealt with.
(3) According to the court below there was an adverse decision in the previous litigation to which the second plaintiff was a party, that exhibit a - 1 was not supported by consideration and that though the second plaintiff and first defendant were ranged as co - defendants in that suit, the decision on the issue as to consideration nevertheless operated as res judicata between them. On the admission of the first plaintiff that the second plaintiff, who was a party to the prior litigation, was his benamidar, it must be held that the second plaintiff fully represented him in the prior litigation and the first plaintiff, the person claiming to be beneficially entitled, though not a party, is fully affected by the rule of res judicata. Gurnarain v. Sheo lal singh, (1918) l. R. 46 la. 1 : 36 m. L. J. 68 : i. L. R. 46 cal. 566 (p. C.). Is sufficient authority for the view that a benamidar represents the real owner and a decree obtained against the benamidar binds the real owner. The further question is, what was the decision in the prior litigation that could be relied upon as res judicata. The court below went wrong in its discussion of this point. It is true that in trial court evidence was adduced and a decision was given on the issue as to the existence of consideration for exhibit a - 1 and the decision was adverse to the present and plaintiff, the benamidar. But then the matter went up on appeal. The appeal destroyed the finality of the judgment of the trial court and the appellate judgment superseded that of the trial court. It is the appellate judgment that has to be looked to determine the question of res judicata. Annamalai v. Thorn - hill, (1931) 61 m. L. J. 420 (p. C.). Sheosagar v. Sitaram, (1897) i. L. R. 24 cal. 616 : l. R. 24 la. 50 (p. C.). Abdullah v. Ganesh das, (1917) i. L. R. 45 cal. 442 ; l,r. 44 la. 213 : 34 m. L. J. 12 (p. C.). Now the appellate court rested its conclusion not on the ground that exhibit a - 1 was unsupported by consideration but on the ground that the transaction was such as not to bind the joint family. Though the trial court found that the consideration for the sale exhibit a - 1 was wholly fictitious, the appellate court did not give a finding upon that question but confirmed the decree of the trial court on the ground that the sale was for a consideration not binding on the joint family. This is not a case where the relief granted by the appellate court would have been possible only on the findings of the trial court which though not referred to, should be deemed to have been adopted by the appellate court. There are observations in the judgment of the lower appellate court throwing doubt on the reality of the debts alleged to have been discharged out of the consideration for exhibit a - 1 but the only point for determination set out in its judgment and decided in the negative by the appellate court was whether exhibit a - 1" was for valid consideration binding on the joint family of plaintiff and third defendant ". There was no final decision on the question whether exhibit a - 1 was supported by any consideration at all and if so, to what extent. In this view it is unnecessary to consider in what circumstances a finding on an issue operates as res judicata between co - defendants.
(4) The question that falls to be answered is whether exhibit a - 1 was supported by consideration and if so, to what extent. It was argued for the appellant that the admission of the father as to the receipt of consideration was binding on the son and that the onus lay upon him to disprove consideration for exhibit a - 1. Reference was made to the recent decision of this court in nagayya gowdu v. Chenganna gowdu, (1956) 2 an. W. R. 65. In support of this contention. Umamaheswaram, j. , in his order of reference to a division bench and bhimasankaram, j. , delivering the judgment of the division bench have referred to the decisions of the privy council in thakur bhagwan singh v. Bishambar nath, (1940) 2 m. L. J. 452 (p. C.) abdur rahman, j. , in sreeramulu v. Thandava krishnayya, (1942) 2 m. L. J. 452. Somayya, j. , in muthachi v. Kandasami, (1945) 1 m. L. J. 207. And chandra reddy, j. , in d. Subramanyam v. K. Bhavanarayana rao, (1955) an. W. R. 28. To this list may be added the judgment of kuppuswami iyer, j. , in vellai goundan v. Rajagopala mudaliar, (1947) 1 m. L. J. 68.
(5) In considering this question regard must be had to certain well - settled rules of law. Ordinarily and apart from status, recitals in deeds can only be evidence as between the parties to the conveyance and those who claim, under them. Banga chandra v. Jagat kishore, (1916) i. L. R. 44 cal. 186 : l r. 43 i. A. 249 : 31 m. L. J. 563 (p. C.). Shrinwas v. Meherbai, (1916) i. L r. 41 bom. 300 : l. R. 44 i. A. 36 : 32 m. L. J. 175 (p. C.). Ankula sanyasi v. Ramachandra rao, (1926) 51 m. L. J. 73. Even as regards parties and their privies an admission is not conclusive proof of the matters admitted and its effect is to shift the burden of proving the contrary to the party making the admission. What a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted, the fact admitted can be taken to be established. Chandra kunwar v. Chaudhri narpat singh, (1906) i. L. R. 29 all. 184: l. R. 34 i. A. 27: 17 m. L. J. 103 (p. C.). Recitals as regards receipt of consideration for a sale or mortgage are regarded as admissions by the vendor or mortgagor which shift the onus of proving want of consideration to the executants or those who claim under them. Ihtisham ali v. Jamna prasad, (1921) l. R. 48 i. A. 365: a. I. R. 1922 p. C. 56. Maganlal v. Darbari lal, (1927) 54 m. L. J. 208 (p. C.). Where, however, strangers who are neither parties to the transaction nor their privies, deny the consideration, the onus is on the mortgagee or vendee to prove the passing of consideration notwithstanding the recitals in the deed. Otherwise, as observed by the judicial committee in banga chandra v. Jagat kishore the rights of persons like reversioners, non - alienating coparceners and minors, could always be defeated by the insertion of carefully prepared recitals in deeds to which they are not parties. It may be that a father has a greater interest in his undivided son than an uncle in his nephew or a widow in the reversioner and is, therefore, less likely to injure him by the introduction of fictitious recitals of consideration in sales or mortgages of family property but this is a factor that is relevant to an appreciation of the evidence and does not affect the burden of proof as a matter of law and pleading.
(6) Under the mitakshara law sons have by birth an equal ownership with the father in ancestral immoveable property and the sons could enforce their right by a partition even against their father's wishes. The sons have independent coparcenary rights of their own in ancestral property. They do not claim through the father nor are their rights derived from or through their father. This principle has been modified to a large extent by another rule of hindu law that a son is bound to discharge the debts of his father if not tainted with immorality to the extent of his interest in the family property. Before, however, a creditor enforces the pious obligation of the sons to pay their father's debts by proceeding against the sons' interest in the ancestral property, he must prove that there was a real debt of the father in existence, if the factum of the debt is denied by the sons. The burden of establishing that there was a real debt of the father rests upon the creditor who seeks to make the sons' interest liable and recitals in documents executed only by the father have not the same probative value against the sons that they have as against the executant. For instance, the special presumptions and rules as to consideration under sections 118 to 122 of the negotiable instruments act, apply only to the parties to the instrument and cannot be invoked against the sons who are not parties to a promissory note executed by their father. Consideration will not be presumed but will if disputed have to be proved as against the sons if the creditor sues upon the debt and seeks to revover it from their shares in ancestral property. Arayana rao v. Venkatappayya, (1937) 1 m. L. J. 543 : i. Lr. 1937 mad. 299 nagireddi v. Somappa, (1942) 2 ml. J. 691 : i. L. R. 1943 mad. 248, 264. Lakshmanaswami v. Raghavacharyulu, (1943) 1 m. L. J. 104 : i. L. R. 1943 mad. 717.
(7) Where a sale of ancestral property is made by the father alone or where a mortgage of the property is created by him and the property is sold in execution of a decree on the mortgage, the sons, not being parties, are entitled to have the factum and nature of the debt tried in a suit of their own. The existence of real debt is a prerequisite of the sons' liability. Lakshmadu v. Ramudu, i. L. R. 1940 mad. 123, 133 - 138. In view of these considerations, it is difficult, with great respect, to accept the view of chandra reddy, j. , in d. Subramaniam v. K. Bhavararayana, (1955) anw. R. 28. That the onus is on the persons pleading want of consideration to prove it although they are not parties to the deed and do not claim under the executant. Nor do we read the judgment in nagayya gowdu v. Chenganna gowdu, (1956) an. W. R. 65. As accepting the view of chandra reddy, j. The following observations of bhimasankaram, j. , are relevant in this connection : -
"it has never been laid down that a person attacking a transaction of this nature above referred to (a sale by a father of ancestral property) can add to the burden of the alienee by an additional plea that the transaction he impugns is altogether devoid of consideration. It is difficult to conceive that an alienee, who seeks to establish actual necessity, benefit or antecedent debt can succeed, unless he proves that the necessity or benefit or the antecedent debt was met or paid out of the money that the alienor received from him by way of consideration for the deed in dispute. To that extent the burden as to consideration is necessarily involved in the initial burden that rests on him."
(8) The passage recognises that the alienee has to prove (1) that there was in fact consideration for the alienation and (2) that the consideration went to discharge antecedent debts of the father or to meet the necessities of the family. The passing of consideration for the alienation lies at the threshold of the enquiry and it is only if that fact is established, the further question of its binding character on the sons of the alienor arises. We cannot, therefore, treat the decision in nagayya gowdu v. Chenganna gowdu as an authority for the position that the second defendant, the son, is bound by his father's admission of the receipt of rs. 4,000 as consideration for the sale, exhibit a - 1. The plaintiff has to establish how much was paid as the price of the sale.
(9) The first plaintiff's father was a money - lender and merchant at ongole and he left some cash and outstandings when he died. The first plaintiff, his only son, was then a minor and his mother ranganayakamma, was his guardian. The consideration for exhibit a - 1 was recited as rs. 4,000 received by the vender as shown below, (1) rs. 354 - 12 - 0 due under a promissory note for rs. 300, exhibit a - 3, dated 7th february, 1942, executed by the first defendant in favour of ranganayakamma ; (2) rs. 443 - 3 - 0 due on a promissory note for rs. 400 exhibit a - 4, dated 4th may, 1943, executed by the first defendant to ranganayakamma ; (3) rs. 1,063 - 12 - 0 due on a loan advanced to the first defendant on 21st may, 1944, in cash and evidenced by an entry in the account of the plaintiff, exhibit a - 10 (d) , signed by the first defendant ; (4) rs. 500 paid as advance for the sale on 1st october, 1944 ; (5) rs. 1,638 - 5 - 0 paid by the agent of the plaintiff to the vendor before the sub - registrar at the time of the registration of the sale. The three debts due from the first defendant to the mother and guardian of the plaintiff amounting to rs. 2,361 - 11 - 0 were discharged out of the consideration for exhibit a - 1. The first defendant admits the execution of the pronotes exhibits a - 3 and a - 4 and the execution of the letter exhibit a - 5 and the endorsement of discharge exhibit a - 5 (a) with regard to the loan of rs. 1,000. There is the endorsement of the registering officer evidencing the payment to the first defendant of rs. 1,638 - 5 - 0 at the time of the registration of exhibit a - 1. Exhibit b - 12, dated 20th may, 1944, evidences the payment of an advance of r. 500 to the first defendant. These payments are found in the account - book exhibit a - 10 produced by the first plaintiff. The plaintiff has examined the attestors of exhibits b - 12, a - 3 and a - 4 as p. W. 2, p. W. 3 and p. W. 5 respectively. Exhibit a - 5 (a) is attested by p. W. 4. There is thus ample evidence to prove that exhibit a - 1 was supported by consideration to the extent of rs. 4,000 as recited in the deed.
(10) In addition to the sum of rs. 4,000, the consideration recited in the sale deed, exhibit a - 1, the plainiff claims to have paid a further sum of rs. 2,100 to the first defendant as the price of the property. An entry exhibit a - 10 (f) , dated 10th october, 1944, in the account - book, exhibit a - 10, is shown in support of this plea. This entry is not signed by the first defendant, though a smaller loan of rs. 1,000 is acknowledged under his signature in exhibit a - 10 (a). There is no promissory note or letter to evidence the loan. Relianceis placed on exhibit a - 2, executed by the first defendant, in favour of the second plaintiff wherein the former agreed to pay a penalty of rs. 2,200 if, as a result of a suit by bommisetti lakshmayya or others, the vendee under exhibit a - 1 lost title to the property. This bommisetti lakshmayya was a person in whose favour the first defendant had agreed to sell the same property for rs. 4,500 under exhibit b - 5, dated 19th march, 1944 and from which he resiled. The first defendant, of course, denies the receipt of rs. 2,100. The plaintiff's case really conies to this, that in order to avoid the risk of a suit for damages by bommisetti lakshmayya, the consideration for exhibit a - 1 was shown to be rs. 4,000 with a secret arrangement for payment of a further sum of rs. 2,100 as the price of the property. If so, some receipt or voucher would have been taken from the first defendant but none was taken. We are unable to accept the plaintiff's case as regards the payment of rs. 2,100 in addition to the sum of rs. 4,000 shown as the price in exhibit a - 1.
(11) The father, the first defendant, is now dead and his interest in the joint family properties has now survived to his son, the second defendant. When the sale exhibit a - 1 was set aside at the instance of the son, the father came under an obligation to refund the purchase money to the disappointed vendee. The liability of the father to make a refund of the purchase money is quasi ex contractu and it is in accordance with good morals, justice and common honesty that this debt of the father should be discharged by the son out of the joint family properties in his hands. In natesayyan v. Ponnuswami, (1892) 3 m. L. J. 1 : i. L. R. 16 mad. 99. The court observed that :
"the son is surely bound to do that which his father himself would do were it possible, viz. , to restore to those lawfully entitled, money, which he has unlawfully retained."
(12) This observation of the madras high court was approved by the judicial committee in hemraj v. Khem chand, (1943) 2 m. L. J. 397 : i. L. R. 1943 all. 727 ; l. R. 70 i. A. 171 (p. C.). Where it was held that the sons were liable to satisfy a decree passed against the father for loss caused by his negligence or wrongful act. That is the position here. The learned advocate for the appellant relying upon section 55, clause 6 (b) of the transfer of property act, claims a charge on a moiety of the property conveyed under exhibit a - 1 for realisation of the sum of rs. 4,000 with interest at 6 per cent, per annum from 20th january, 1948, till realisation. We are of the opinion that, in the circumstances of the case, the first plaintiff is entitled to a charge for the amount claimed by him on a moiety of the property covered by exhibit a - 1. The second defendant who is the only surviving defendant on record will have three months' time for payment of the decretal amount. In default of such payment, there will be a final decree for sale of a moiety of the property covered by exhibit a - 1. Since both parties have adduced untenable pleas and unacceptable evidence in support of their case we direct that they should pay and receive proportionate costs both here and in the court below. The second defendant, who got himself impleaded as a defendant in order to contest the plaintiffs' claim, will be personally liable for the costs awarded to the first plaintiff. Decree modified.