PANDURANG Vs. TUKARAM

JUDGEMENT

(1.) 1. Plaintiff-respondent 1 had purchased certain property from respondent

(2.) BY a sale deed, dated 4th May 1929. This property being attached by defendant 1, the plaintiff filed an objection which was unsuccessful. Then he brought the present suit for a declaration Under Order 21, Rule 63, Civil P.C. The first Court, holding that the sale was bogus and fraudulent, dismissed the suit. The lower appellate Court found that the first Court had proceeded upon a wrong view as regards the burden of proof, and then on a review of the evidence and circumstances of the case came to the conclusion that the appellant's purchase was a real one and not fraudulent. Therefore it decreed the claim. In second appeal it is contended that the first Court's view as to the burden of proof was quite correct and that the lower appellate Court's estimate of the evidence has been vitiated by its wrong decision on this point. The lower appellate Court relies on the Privy Council case of V.E.A.R.M. Firm v. Maung Ba Kyin 1927 PC 237 wherein it was remarked that as the plaintiffs in that case were the ostensible owners of the property under a duly registered deed and a deed of transfer, it was for the party claiming to attach that property for somebody else's debt, not their debt but the debt of the original debtor, to show that the sale was a fraudulent one. 2. The head-note of the case seems to lay it down as a general principle, but as it has been consistently held by the Courts in India and by the Privy Council itself that the onus lies on the plaintiff who brings a suit Under Order 21, Rule 63, it is obvious that V.E.A.R.M. Firm v. Maung Ba Kyin 1927 PC 237 must be looked into carefully before a conclusion is reached that it upsets the previous law. This has been well done in two cases which are reported in Mahadeo Missir v. Ram Prashad 1929 Pat 579. They make it quite clear that in that particular case it was because the plaintiff had succeeded in proving the passing of consideration that their Lordships held that the defendant had to show that the sale was fraudulent. Their Lordships nowhere lay down as a proposition of law that in a suit brought Under Order 21, Rule 63, the burden of proof lies on the defendant. In fact neither Order 21, Rule 63 nor the phrase 'burden of proof is mentioned in their Lordships' short judgment. There is evidently no intention of upsetting the previous clear decision of the Privy Council in Ghunsham Das v. Umapershad 1919 PC 6. I am in respectful agreement with the discussion in the Patna and Madras cases and hold that the burden of proof in this case lay initially on the plaintiff and that V.E.A.R.M. Firm v. Maung Ba Kyin 1927 PC 237 is no authority to the contrary.

(3.) IN other words, if the Judge's finding is determined only by the question of burden of proof, or on a one-sided examination of the evidence due to the view taken about the burden of proof, then the finding stands in need of revision; but if the evidence and circumstances on both sides are duly considered the question of the burden of proof is of very little importance. This has been pointed out in quite a number of cases out of which I may refer to: Trimbakdas v. Nagindas 1930 Nag 225 at p. 81: Where, as here, the relevant facts are before the Court and all that remains for decision is what inference is to be drawn from them, the question of burden of proof is not pertinent. Also when the entire evidence is once before the Court, the debate as to onus of proof is purely academical.