RAMASUBBA AIYAR Vs. AVUDAI AMMAL

JUDGEMENT

(1.) The learned District Judge in arriving at his conclusions has practically set aside the oral evidence on both sides as of very little value. He has considered the documentary evidence at great length and has then come to the conclusion that the documents do not prove the plaintiff s case, that case being that the 2nd defendant s purchase under Exhibit B was made as the 1st defendant s benamidar. In arriving at this conclusion, the learned District Judge has laid (in our opinion) undue stress in very many places on the fact that the burden of proof lay on the plaintiffs. We think that when the whole evidence on both sides has been let in it is not legally sound to lay stress on the burden of proof, and that the Court should weigh the evidence let in and the probabilities as a whole and then arrive at its findings on the facts. Further, as pointed out in Hall v. Venkatakrishna 13 M. 394 at p. 399 the burden of proof in most cases is not a burden that goes on for ever resting on the shoulders of the person upon whom it is first cast." These considerations (it seems to us) have not been properly kept in mind by the learned Judge of the Court below in construing the documentary evidence on the construction of which the case of benami rests. After reading over the principal letters, in Exhibit E series, and hearing many of them discussed at the Bar, we are of opinion that Exhibits E14 and E16 have not been properly construed by the learned District Judge, and that, on a proper construction of these letters, the finding ought to have been that the 2nd defendant was the 1st defendant s benamidar in the matter of the purchase of lands from Padmanabha Aiyar.

(2.) The question of construction of documents is a question of law--Lala Fateh Chand v. Rani Kishen Kunwar 16 Ind. Cas. 67 : 16 C.W.N. 1033 : 23 M.L.J. 330 : 12 M.L.T. 413 : 10 A.L.J. 335 : 14 Bom.L.R. 1090 : 34 A. 579 (P.C.) : 17 C.L.T. 1 : (1912) M.W.N. 1065, and as the finding of fact in this case in the lower Court has been based (as we have already stated) on the documentary evidence alone, we set aside the finding of the District Judge in the 2nd defendant s favour and decide the 2nd issue in the plaintiff s favour.

(3.) Before disposing finally of this second appeal we think it is desirable to obtain a finding from the District Court on the 7th issue, which has not been dealt with in the lower Appellate Court s judgment. The finding should be submitted within four weeks from the receipt of this order. Ten days will be allowed for filing objections. Tyabji, J.