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Wednesday, May 1, 2013

Evidence Act, 1872: ss. 101 and 102-Burden of proof-Suit for declaring sale deed as void-Forgery and fabrication of document alleged-Held, with a view to prove forgery or fabrication in a document, possession of the same by defendant would not change legal position-Initial burden of proof would be on plaintiff-The fact that defendant was in a dominant position must be proved by plaintiff at the first instance. Evidence-Burden of proof and onus of proof-Distinction between-Explained. Words and Phrases: Expressions `burden of proof' and `onus of proof'-Connotation of in the context of Evidence Act. Suit-Framing of issues-Practice and Procedure. Pursuant to an agreement of sale between respondent and appellant, a sale deed was executed on 26.3.1991. Later, the respondent filed a suit for declaration that the said sale deed was void as the same was forged and fabricated. The defendant-appellant denied the allegations. On pleadings of the parties the trial court framed the following issue: "Whether the sale deed dated 26.3.1991 is forged and fabricated as prayed for?" On an application by the plaintiff, the trial court observed that onus to prove an issue was to be discharged in affirmative and it would always be difficult to prove the same in negative, and reframed the issue as under: "Whether the alleged sale deed dated 26.3.1991 is a valid and genuine document?" The revision application of the defendant was dismissed by the High Court observing that defendant was in a dominant position to prove the document affirmatively. Aggrieved, the defendant filed the present appeal. Citation: 2006 AIR 1971,2006(1 )Suppl.SCR659 ,2006(5 )SCC558 ,2006(5 )SCALE153 ,2006(11 )JT521- Allowing the appeal, the Court HELD: 1.1. In view of Section 101 of the Evidence Act, the initial burden of proof would be on the plaintiff. The trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. The fact that the defendant was in a dominant position must be proved by the plaintiff at the first instance. [662-h; 663-b-c; e] Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., AIR (2003) SC 4351, distinguished. 1.2. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the Trial Judge to produce the same. [655-d-e] 2. It should be borne in mind that a distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the OTHERS The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitled him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. [655-f-h; 666-a] R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr., JT (2004) 6 SC 442, relied on. 3. The order reframing the issue is set aside thus reviving the issue originally framed. [666-d] Suresh Kumari and A.P. Mohanty for the Appellant. Shalil Sagar, Pratap Venugopal and E. Venu Kumar for M/s. K.J. John & Co., for the Respondent.


http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (civil) 2413 of 2006
PETITIONER:
Anil Rishi
RESPONDENT:
Gurbaksh Singh
DATE OF JUDGMENT: 02/05/2006
BENCH:
S.B. Sinha & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
[Arising out of SLP (Civil) No. 5963 of 2006]
S.B. SINHA, J.
 Leave granted.
The defendant in the suit is the appellant herein. He is before us
aggrieved by a judgment and order dated 14th December, 2005 passed by the
Punjab and Haryana High Court at Chandigarh in Civil Revision No. 1077
of 2005 dismissing his revision application arising out of an order dated
9.2.2005 passed by the Civil Judge (Junior Division), Chandigarh.
An agreement to sell dated 26.03.1990 was entered into by and
between the parties hereto in relation to the premises bearing House No. 86,
situate in Sector 18A, Chandigarh. A sale deed was executed pursuant to the
said agreement to sell on 27.03.1991. However, a suit for declaration was
filed by the respondent herein alleging that the said sale deed dated
26.3.1991 was a forged, fabricated and was a void document. The appellant
filed his written statement in the said suit denying or disputing the
allegations contained therein. On the pleadings of the parties herein, issues
were framed by the learned trial Judge including the following:-
"Whether the sale deed dated 26.3.1991 is forged and
fabricated as prayed for?"
An application was filed by the respondent for deletion of the said
issue and reframe the same. The learned trial Judge reframed the issue
allowing the said application in terms of order dated 9.2.2005. Reframed
issue No. 2 reads as under:-
"Whether the alleged sale deed dated 26.3.1991 is a valid 
and genuine document?"
The learned Trial Judge while passing its order dated 09.02.2005
held:-
"Normally the initial burden of proving the execution of
a document when it is denied must rest upon the person
alleging its execution. Here in the present case the
plaintiff has denied the execution of the sale deed. The
onus to prove a issue has to be discharged affirmative.
"It is always difficult to prove the same in negative".
When the fact is proved in affirmative or evidence is led
to prove the same. Onus shifts on the other side to negate http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
the existence of such a fact."
A revision application filed on behalf of the appellant herein against
the said order was dismissed by the High Court by reason of the impugned
order stating:-
"In the present case, it is the case of the plaintiff respondent that he had not executed any sale deed dated
26.3.1991 in favour of the defendant-appellant and it was
a forged and fabricated document. On the other hand, it
is the case of the defendant that the said sale deed is valid
and genuine document. The sale deed itself is in
possession of the defendant. In such a situation, the
defendant is in a dominating position to prove the
document affirmatively, whereas it will be difficult for
the plaintiff to prove the same. Negatively, who is not
even in possession of the sale deed in question. After the
defendant proves the validity and genuineness of the sale
deed, the turn will come of the plaintiff to prove the
document negatively. In this view of the matter, I am of
the considered opinion that the trial court has rightly re framed issue No. 2 and put the onus on the defendant to
prove
whether the same is valid and genuine document. 
There is no infirmity in the order dated 9.2.2005 passed
by the Civil Judge (Junior Division), Chandigarh\005\005"
In the impugned judgment, the High Court proceeded on the basis that
although generally it is for the plaintiff to prove such fraud, undue influence
or misrepresentation, but when a person is in a fiduciary relationship with
another and the latter is in a position of active confidence, the burden of
proving the absence of fraud, misrepresentation or undue influence is upon
the person in the dominating position.
The initial burden of proof would be on the plaintiff in view of
Section 101 of the Evidence Act, which reads as under:-
"Sec. 101. Burden of proof. \026 Whoever desires any Court
to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts,
must prove that those facts exist.
When a person is bound to prove the existence of any
fact, it is said that the burden of proof lies on that
person."
In terms of the said provision, the burden of proving the fact rests on
the party who substantially asserts the affirmative issues and not the party
who denies it. The said rule may not be universal in its application and
there may be exception thereto. The learned trial Court and the High Court
proceeded on the basis that the defendant was in a dominating position and
there had been a fiduciary relationship between the parties. The appellant in
his written statement denied and disputed the said averments made in the
plaint.
Pleading is not evidence, far less proof. Issues are raised on the basis
of the pleadings. The defendant-appellant having not admitted or
acknowledged the fiduciary relationship between the parties, indisputably,
the relationship between the parties itself would be an issue. The suit will
fail if both the parties do not adduce any evidence, in view of Section 102 of
the Evidence Act. Thus, ordinarily, the burden of proof would be on the
party who asserts the affirmative of the issue and it rests, after evidence is
gone into, upon the party against whom, at the time the question arises,
judgment would be given, if no further evidence were to be adduced by
either side.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
The fact that the defendant was in a dominant position must, thus, be
proved by the plaintiff at the first instance.
Strong reliance has been placed by the High Court in the decision of
this Court in Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima
Maity & Ors., [AIR 2003 SC 4351]. In that case, the question of burden of
proof was gone into after the parties had adduced evidence. It was brought
on record that the witnesses whose names appeared in the impugned deed
and which was said to have been created to grab the property of the plaintiffs
were not in existence. The question as regards oblique motive in execution
of the deed of settlement was gone into by the Court. The executant was
more than 100 years of age at the time of alleged registration of the deed in
question. He was paralytic and furthermore his mental and physical
condition was not in order. He was also completely bed-ridden and though
his left thumb impression was taken, there was no witness who could
substantiate that he had put his thumb impression. It was on the
aforementioned facts, this Court opined:-
"12\005The onus to prove the validity of the deed of
settlement was on the defendant No. 1. When fraud,
misrepresentation or undue influence is alleged by a
party in a suit, normally, the burden is on him to prove
such fraud, undue influence or misrepresentation. But,
when a person is in a fiduciary relationship with another
and the latter is in a position of active confidence the
burden of proving the absence of fraud,
misrepresentation or undue influence is upon the person,
in the dominating position, he has to prove that there was
fair play in the transaction and that the apparent is the
real, in other words, that the transaction is genuine and
bona fide. In such a case the burden of proving the good
faith of the transaction is thrown upon the dominant
party, that is to say, the party who is in a position of
active confidence. A person standing in a fiduciary
relation to another has a duty to protect the interest given
to his care and the Court watches with jealously all
transactions between such persons so that the protector
may not use his influence or the confidence to his
advantage. When the party complaining shows such
relation, the law presumes everything against the
transaction and the onus is cast upon the person holding
the position of confidence or trust to show that the
transaction is perfectly fair and reasonable, that no
advantage has been taken of his position\005"
This Court in arriving at the aforementioned findings referred to
Section 111 of the Indian Evidence Act which is in the following terms:-
"Sec. 111. Proof of good faith in transactions where one
party is in relation of active confidence. \026 Where there is
a question as to the good faith of a transaction between
parties, one of whom stands to the other in a position of
active confidence, the burden of proving the good faith of
the transaction is on the party who is in a position of
active confidence."
But before such a finding is arrived at, the averments as regard alleged
fiduciary relationship must be established before a presumption of undue
influence against a person in position of active confidence is drawn. The
factum of active confidence should also be established.
Section 111 of the Evidence Act will apply when the bona fides of a
transaction is in question but not when the real nature thereof is in question. http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
The words ‘active confidence’ indicate that the relationship between the
parties must be such that one is bound to protect the interests of the other.
Thus, point for determination of binding interests or which are the
cases which come within the rule of active confidence would vary from case
to case. If the plaintiff fails to prove the existence of the fiduciary
relationship or the position of active confidence held by the defendantappellant, the burden would lie on him as he had alleged fraud. The trial
Court and the High Court, therefore, in our opinion, cannot be said to be
correct in holding that without anything further, the burden of proof would
be on the defendant.
The learned trial Judge has misdirected himself in proceeding on the
premise "it is always difficult to prove the same in negative a person/party in
the suit."
Difficulties which may be faced by a party to the lis can never be
determinative of the question as to upon whom the burden of proof would
lie. The learned Trial Judge, therefore, posed unto himself a wrong question
and arrived at a wrong answer. The High Court also, in our considered
view, committed a serious error of law in misreading and misinterpreting
Section 101 of the Indian Evidence Act. With a view to prove forgery or
fabrication in a document, possession of the original sale deed by the
defendant, would not change the legal position. A party in possession of a
document can always be directed to produce the same. The plaintiff could
file an application calling for the said document from the defendant and the
defendant could have been directed by the learned Trial Judge to produce
the same.
There is another aspect of the matter which should be borne in mind.
A distinction exists between a burden of proof and onus of proof. The right
to begin follows onus probandi. It assumes importance in the early stage of
a case. The question of onus of proof has greater force, where the question
is which party is to begin. Burden of proof is used in three ways : (i) to
indicate the duty of bringing forward evidence in support of a proposition at
the beginning or later; (ii) to make that of establishing a proposition as
against all counter evidence; and (iii) an indiscriminate use in which it may
mean either or both of the others. The elementary rule is Section 101 is
inflexible. In terms of Section 102 the initial onus is always on the plaintiff
and if he discharges that onus and makes out a case which entitles him to a
relief, the onus shifts to the defendant to prove those circumstances, if any,
which would disentitle the plaintiff to the same.
In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami &
V.P. Temple and Anr. [JT 2004 (6) SC 442], the law is stated in the
following terms :
"29. In a suit for recovery of possession based on title
it is for the plaintiff to prove his title and satisfy the court
that he, in law, is entitled to dispossess the defendant
from his possession over the suit property and for the
possession to be restored to him. However, as held in A.
Raghavamma v. A. Chenchamma there is an essential
distinction between burden of proof and onus of proof:
burden of proof lies upon a person who has to prove the
fact and which never shifts. Onus of proof shifts. Such a
shifting of onus is a continuous process in the evaluation
of evidence. In our opinion, in a suit for possession based
on title once the plaintiff has been able to create a high
degree of probability so as to shift the onus on the
defendant it is for the defendant to discharge his onus and
in the absence thereof the burden of proof lying on the
plaintiff shall be held to have been discharged so as to
amount to proof of the plaintiff’s title."http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
For the reasons aforementioned, the impugned judgment cannot be
sustained. The order reframing the issue is set aside thus reviving the issue
originally framed. The Trial Court will be free to frame any additional issue
if it is felt necessary.
The appeal is allowed as above.

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