SOBHA SINGH Vs. BIHARI LAL BENI PARSHAD

JUDGEMENT

(1.) On the 1st March, 1955 Messrs Behari Lal Beni Parshad brought a suit against Sir Sobha Singh & Co., for the recovery of a sum of Rs. 1,42,884/5/- on the basis of a cheque for Rs. 1,20,000 issued by it as a short term loan payable on demand. The defendant denied his liability to repay the amount on the ground that this sum of money was given to him not by way of loan but for payment of interest on a loan of Rs. ten lacs raised by the defendant from the Bank of Jaipur. In view of the pleadings of the parties the trial Court proceeded to frame the following issue, namely :-

(2.) The defendant states that the onus of this issue has been wrongly placed on him and has come to this Court in revision. Section 102 of the Indian Evidence Act declares that the burden of proof shall lie on the person who would fail if no evidence at all were given on either side. If therefore the plaintiff asserts that he advanced a certain sum of money to the defendant by way of a loan payable on demand and if the defendant denies having received it as a loan the burden of establishing the fact devolves on the plaintiff. The person who asserts something to be due to him has the burden of proof and he cannot be permitted to shift this burden to shoulders other than his own. As pointed out by Bhide, J., in Bihari Lal v. Chandu Lal, 1939 AIR(Lah) 386 every payment made by one person to another is not necessarily a loan and there is no legal presumption that it was meant to be repaid. The person who brings an action for the recovery of money must establish to the satisfaction of the Court that it was intended to be repaid.

(3.) For these reasons I would accept the petition, set aside the order of the trial Court and direct that the issue be reframed so as to shift the burden of proof from the defendant to the plaintiff.