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Issues: (i) Whether the suit mortgage deed was supported by consideration; (ii) Whether the plaintiff/appellant was entitled to a decree for the suit claim.
Issue (i): Whether the suit mortgage deed was supported by consideration.
Analysis: The execution of the registered mortgage deed was admitted. The recitals in the document, coupled with the oral evidence of the plaintiff and her husband, were sufficient to discharge the initial burden. Once that burden was discharged, it was for the defendants to prove that the mortgage was without consideration. The non-examination of the second defendant, who was a party to the document and the proper person to speak to the transaction, justified an adverse inference. The absence of attesting witnesses did not defeat the plaintiff's case because execution was not specifically denied and the statutory requirement under Section 68 did not operate in the same manner on these facts.
Conclusion: The suit mortgage deed was held to be supported by consideration, in favour of the plaintiff/appellant.
Issue (ii): Whether the plaintiff/appellant was entitled to a decree for the suit claim.
Analysis: Since the mortgage was found to be supported by consideration, the defendants' challenge to the claim failed. The evidence on record established the plaintiff's entitlement to enforce the mortgage debt, and the trial court's contrary view on burden of proof and appreciation of evidence was found unsustainable.
Conclusion: The plaintiff/appellant was held entitled to a preliminary decree for the suit claim, in favour of the plaintiff/appellant.
Final Conclusion: The dismissal of the suit by the trial court was set aside and the mortgage claim was decreed with costs throughout.
Ratio Decidendi: Where execution of a mortgage is admitted, the plaintiff may discharge the initial burden by the recitals in the registered instrument together with supporting oral evidence, and the burden then shifts to the defendant to disprove consideration; withholding the material executant as a witness may justify an adverse inference.
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