GUBRA Vs. UMRAO

JUDGEMENT

(1.) THE only question in this revision is whether the burden of proof has been rightly shifted to the defendants. The suit was instituted by Umrao as a minor though his mother Tulsa. The defendants denied that Umrao was a minor. The trial Judge framed the following issue:

(2.) SHRI Khedkar strenuously urges that this Court should not interfere in revision as the question can be taken up by the defendants in appeal under S. 105 C.P.C. In my opinion, no hard and fast rule can be laid down as to when there should be interference in revision on a question relating to burden of proof. It was laid down in Ramprasad Ramnarain Vs. Harishchandra Dwarkadas 1952 MBLJ 103=AIR 1953 MB 56, that interference can be made on a question of burden of proof if the subordinate Court acted illegally or with material irregularity. Applying the dictum in Venkatagiri Ayyangar vs. Hindu Religious Endowments Board, AIR 1959 SC 23, there should be a breach of some provision of law, or there should be commission of some error of procedure in the course of the trial which is material and affects the ultimate decision. There should be an error "in the approach of the question." In the present case, the trial Judge has altered the wording of the issue saying: ...[VERNACULAR TEXT OMITTED]...