INCOME TAX OFFICER Vs. APPA RAO B

JUDGEMENT

(1.) THE Income-tax Officer, A-Ward, Visakhapatnam, filed a suit, O. S. No. 324 of 10, 81, on the file of the Second Additional Subordinate Judge, Visakhapatnam, to set aside the order dated September 30, 1980, made in O. P, No. 139 of 1980-81 by the Tax Recovery Officer, Visakhapatnam. THE plaintiff's case is that the adoptions and the wills set up by the defendants and accepted by the Tax Recovery Officer, Visakhapatnam, are not correct. On the basis of the pleadings, the following issues Nos. 2 to 5 have been framed :

(2.) BEFORE the commencement of the trial, the defendants filed I. A. No. 7 of 1985 under Order 14, rule 5, Civil Procedure Code, seeking amendment of issues. The amendment sought for is to introduce the word "not" in all the issue Nos. 2 to 5 so as to case the burden of proof on the plaintiff. The learned Subordinate Judges, by taking into consideration the decisions in Asoke Chandra Mazumdar v. Chota Nagpur Banking Association Ltd. AIR 1948 Pat 247 and Smt. Khabirannessa Bibi v. Sudhamoy Bose, , came to the conclusion that it is the plaintiff that has to prove the case that has been set up by him as the plaintiff wants to set aside the order passed by the Tax Recovery Officer wherein the has accepted the two adoptions and the wills set up by the parties. The wills are dated March 18, 1976, and February 16, 1962, and the factum of adoption of the first defendant and late B. Appa Rao by late B. Guruvulu are not true and valid is on the plaintiff to prove. The I. A. No. 7 of 1985 was allowed, by casting the burden of proof on the plaintiff. The respondent in I. A. No. 7 of 1985 who is the plaintiff in the main suit, filed the present revision petition.

(3.) NOW, the crucial point that has to be determined is whether in a case where a claim petition is filed and allowed by the Tax Recovery Officer, under rule 11 (6) of Part I of Schedule II to the Income-tax Act, 1961, the burden of proof completely rests on the plaintiff who filed a suit to set aside that order. The two ruling that have been relied upon by the lower court relate to benami transactions. The proof in a case of the benami transactions is entirely different from that in a case where the adoptions and the wills have to be proved. Rule 11 (6) is as follows :