NATHUNI SAO Vs. MTLACHHMINIA

JUDGEMENT

(1.) This appeal arises out of a suit under Order 21, Rule 63, Civil P.C. The difficulty which has arisen in this case would have been obviated had the learned Judge kept in mind the proposition which has been reiterated so many times, namely that the doctrine of the onus of proof is merely academic where both parties give evidence. Had the learned Judge taken the evidence in this case and then come to the conclusion one way or the other, no difficulty, as I have already said, would have arisen. To develop the point I have stated,, if the plaintiff and the defendant gave evidence and the defendant's evidence was not to be believed in any circumstances and the onus was upon the defendant, necessarily the plaintiff must succeed. Similarly, if the onus was on the plaintiff and the plaintiff failed to satisfy the Court, the plaintiff must fail. But where there is evidence on; both sides, as appears to have been the case in the present action, and the evidence of j neither side is not inherently improbable, the question of onus does not arise at all and the Judge has to determine the issue between the parties on the evidence before him. Difficulty has arisen in this case by the Judge having stated that the onus was on the plaintiff. In Nawab Mirza Ali Kadar Badadur V/s. Inder Parshad (1896) 23 Cal. 950 their Lordships of the Judicial Committee of the Privy Council have pointed out that the onus of proving that the transaction recited in the endorsement on the bond which was witnessed by the Registrar was untrue was on the party who denied the truth of the statement contained in that endorsement.

(2.) Now, the relevance of that statement lies in the fact that the Judge in the Court; below decided against the genuineness of the document because it was not proved that consideration had passed. It is true that the learned Judge proceeded also to decide whether the plaintiff was in possession, but possession did not necessarily determine the matter. Had the Judge decided that it was a genuine document and for consideration, the question whether the plaintiff was in possession or not would not have affected the decision as to his title. Many persons are not in possession of properties and yet they have a very good title to them. In great many cases, possession may be an indication as to the truth of the allegation of the plaintiff that he has a title. It is quite clear that the real point in. the case is whether the plaintiff has title, that point depending, as I have already said, on the finding of the Judge in the Court, below whether the money was paid or not. Prima facie on the decision of the Privy Council the fact that there was an endorsement on the bond to the effect that Rs. 79 had been paid to Haridas presumably on behalf of the vendor threw the onus on the defendant to show that the money had not been paid--neither Rs. 79 nor any other I money. It is perhaps more accurate to say 1 that once it is shown that consideration or a portion of it has passed, the onus is on the defendant to prove that it has not.

(3.) Reliance in such cases is always placed upon the decision of the Privy Council in Mohammad Ali Mohammad Khan V/s. Mt. Bismillah Begam where their Lordships are supposed to have laid down the proposition that the onus was on the party bringing a suit under Order 21, Rule 63. All that Lord Dunedin pointed out in delivering the judgment of the Privy Council was this that, as the Begam based her claim to the property as being wakf property upon the deed of gift made to her in consideration of her dower some years before and as that transaction had been held both in the Courts in India and before the Judicial Committee to be a fraudulent transaction (the mention of wakf had to be looked upon with great suspicion, and the onus in those circumstances was on the claimant to establish it. The judgment in Mahadeo Missir V/s. Ram Prasad A.I.R (1929) Pat. 579 to "which I was a party, makes reference to a decision reported in Vol. 5 of the Rangoon Reports--another decision of their Lordships of the Privy Council--and Kulwant Sahay J. made this observation while delivering the judgment of the Court: Therefore the circumstances upon which their Lordships of the High Court of Rangoon placed the onus upon the defendant were set out in the judgment, namely the fact that the plaintiff had proved the passing of the consideration. When the matter went before their Lordships of the Judicial Committee they observed as follows: Now they (meaning the plaintiffs) being the ostensible owners of the property under a duly registered deed and a deed of transfer, obviously the party claiming to attach that property for sombody else's debt, not their debt, but the debt of the original debtor, must show that the sale was a fraudulent one.