Richards, C.J and Tudball, J.:— This appeal arises out of a suit on foot of a mortgage, dated the 23rd of September, 1898. There were a number of defendants besides the mortgagors. The present appellants Babbu and Sukhnandan Lal were defendants as purchasers of a portion of the mortgaged property. The court of first instance, according to the judgement of the lower appellate court, threw the onus of proving the payment of consideration upon the plaintiff, and held that he had not discharged this onus and accordingly dismissed the suit. The lower appellate court itself also dismissed the suit, stating that, while the court of first instance was wrong in throwing the onus upon the plaintiff, still, the witnesses having been examined and not believed, the suit was rightly dismissed.
A learned Judge of this Court finding that there was an acknowledgment of the money in the deed itself, (and apparently, believing that there was no other evidence adduced on behalf of the defendants), held that both the courts below were wrong and decreed the plaintiff's claim.
We entirely agree with the remarks of the learned Judge of this Court. 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 primâ 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 presumption of course can be rebutted, and 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 to show that, notwithstanding the acknowledgment in the body of the deed, there was no consideration in fact. We would like here to point out that as a general rule the subordinate courts ought to hear the evidence on both sides. Their decisions are not always final. If they, do not hear the evidence on both sides, in cases in which appeals lie, the defendant may be put in the awkward position of having the case decided on appeal against aim although his evidence has not been heard. To some extent we rather suspect that this is what happened in the present case. Evidently the learned Munsif was very dissatisfied with the plaintiff's evidence. We find, however, on referring to the record that one witness was examined on behalf of the defendants who deposed to facts, which, if believed, would go to show that there was no consideration for the bond in suit, also that he mentioned some persons who could corroborate this statement, and that these persons were summoned as witnesses. The facts were evidently not brought under the notice of the learned Judge of this Court, owing very likely to the fact that the pleader on behalf of the present appellants had died and they were unrepresented when the appeal was before him. We might also mention that the plaintiff and the appellant Sukhnandan Lal had come to terms and that the decree as against Sukhnandan could only have been in the terms of the compromise.
We allow the appeal, set aside the decree of this Court and also of the lower appellate court, and remand the case to the court of first instance with directions to proceed to hear the evidence for the defence and to decide the case according to law. The Court will be entitled, after hearing the defendant's evidence, if it thinks it necessary so to do, to hear any further evidence which the parties may adduce. Costs here and heretofore, including both hearings in this Court, will be costs in the cause.
Appeal decreed and cause remanded.
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