that they will take appropriate proceedings against the tenant. made in revenue proceedings is not an admission of plaintiffs possession ?= application made by the respondent for obtaining exemption certificate under Section 88C, should have been accepted as evidence in favour of the plaintiff, viz. that they will take appropriate proceedings against the tenant. 6. The revenue proceedings do show that the defendant has made some such statements, but those statements were made while seeking exemption. The Civil Court had to decide on the basis of the material that was adduced in evidence by the plaintiff before it. The Trial Judge could not hold that the plaintiff was in possession of the suit property on the basis of the material provided. The evidence of the plaintiff herself shows that her father was an officer in the aforesaid company, her husband was an officer in Merchant Navy and she was required to go along with him and she never visited this particular area i.e. the suit property for a number of years.- If the plaintiff was in possession of a parcel of land and cultivating the land, she would have got the appropriate certificate under Section 32-G of the Bombay Tenancy and Agricultural Lands Act and claimed to be "protected tenant". The plaintiff failed to obtain that certificate also. That apart, if the plaintiff was in possession of the land and cultivating the same, as is contended by her, there would have been a number of documents which could have been produced and relied upon by her, like electricity bills, bills for payment of water charges, etc. and even for that matter, an affidavit or evidence of the neighbours could have been obtained and placed on record. But nothing of that kind was filed by the plaintiff and ultimately the suit was dismissed.

' 


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


SPECIAL LEAVE PETITION (CIVIL) NO. 28538 OF 2011




EDNA SUSHILA SAMUEL Appellant(s)
:VERSUS:
WAMAN KRISHNA GALANDE (D) THR.LRS. & ORS. Respondent(s)








O R D E R


1. This special leave petition seeks to challenge the judgment
and order dated 8.7.2011 passed by learned Single Judge of the High
Court of Judicature at Bombay in Second Appeal No.257 of 2011. By
that judgment the learned Single Judge has left undisturbed the
decisions of the First Appellate Court as also of the Trial Court i.e.
Civil Judge, Senior Division, Pune rendered on 23.12.2010 in Regular
Civil Suit No.1109 of 2003.


2. Heard Mr. Amol Chitale, learned counsel appearing for the
petitioner and Mr. V.A. Mohta and Ms. Indu Malhotra, learned senior
counsel appearing for the respondents. Mr. Manish Pitale has appeared
for an intervenor.


3. The above referred suit was filed by the plaintiff-petitioner
seeking an injunction against the respondents on the basis of heralleged possession of the property concerned. 
The suit property is a
piece of land of about 10 acres, situate at Vadgaon Sheri, Taluka
Haveli, District Pune. 
The plaintiff relied upon the Revenue entries
from 1955 to 1998 and 
also the application made by the respondents to
get Exemption Certificate under Section 88-C of the Bombay Tenancy and
Agricultural Lands Act, 1948. 
Apart from that the plaintiff relied
upon the averments which the plaintiff had made in the plaint and some
statements of the defendant-respondent in the Revenue proceedings.


4. It is the settled position that when a tenancy matter is in
the Court, the Court decides the same on the basis of the evidenceadduced before it. 
In that process the issues are framed, documents
are exhibited, the revenue entries are examined and an appropriate
inference is drawn. 
The 7x12 extract of one year which has been
produced by the plaintiff-petitioner, shows the name of father of the
plaintiff in the other rights column. 
The name of the ancestor of the
respondent is also shown in the same column. 
This is the best document
relied upon by the plaintiff-petitioner. 
As against that, without
there being any other evidence which could be accepted by the Court,
the Trial Court held that the plaintiff-petitioner claims to have
possession of a parcel of land through her father who was an employee
in a company, known as "Bombay Bio Products". 
It is not the case of
the plaintiff-petitioner that the plaintiff was, in any way, the
tenant of the respondent inasmuch as there are no rent receipts relied
upon by the plaintiff.
 If the plaintiff was in possession of a parcel
of land and cultivating the land, she would have got the appropriate
certificate under Section 32-G of the Bombay Tenancy and Agricultural
Lands Act and claimed to be "protected tenant". 
The plaintiff failed
to obtain that certificate also. 
That apart, if the plaintiff was in
possession of the land and cultivating the same, as is contended by
her, there would have been a number of documents which could have been
produced and relied upon by her, like electricity bills, bills for
payment of water charges, etc. and even for that matter, an affidavit
or evidence of the neighbours could have been obtained and placed on
record. 
But nothing of that kind was filed by the plaintiff and
ultimately the suit was dismissed.


5. A question arises as to whether the Trial Judge has committed
any error and if so, which is that. 
To this, the submission of the
plaintiff-petitioner is that those revenue entries as well as the
application made by the respondent for obtaining exemption certificate
under Section 88C, should have been accepted as evidence in favour of
the plaintiff, viz. that they will take appropriate proceedings
against the tenant.


6. The revenue proceedings do show that the defendant has made
some such statements, but those statements were made while seeking
exemption. 
The Civil Court had to decide on the basis of the material
that was adduced in evidence by the plaintiff before it. 
The Trial
Judge could not hold that the plaintiff was in possession of the suit
property on the basis of the material provided. 
The evidence of the
plaintiff herself shows that her father was an officer in the
aforesaid company, her husband was an officer in Merchant Navy and she
was required to go along with him and she never visited this
particular area i.e. the suit property for a number of years.

7. Mr. Mohta, learned senior counsel appearing on behalf of the
respondents pointed out that the plaintiff was required to file
another suit bearing No.104 of 2010 against one Mr. Popatlal
Navalakha, who she claims to be her manager and who had also claimed
independent possession on a parcel of the land. It is seen that this
suit was for a permanent injunction and alternatively a prayer was
also made therein that the possession be given to the plaintiff. If
this is the position of the plaintiff in the other suit, it could not
be said that she was in possession when she sought possession from Mr.
Navalakha.




8. The land in question is a Ramoshi Watan land and the case of
the defendant is that one Bhivaji Galande, who was the predecessor of
the defendant, had purchased this land in auction and that is how
their claim to be in possession. The revenue certificate (which is a
7x12 extract) also mentions the State Government as owner and the name
of Galande in the other rights column. The Trial Court, therefore,
examined all these records and noted that the tenancy Court had held
that the plaintiffs were not tenants in the suit property. The Trial
Court has also referred to the fact that the suit filed against
Navalakha was filed in 1991 and therefore, the plaintiff was not in
possession at that particular point of time also. This being the
evidence, in our view, there was no occasion for the Trial Court to
grant any injunction as sought by the plaintiff. The Trial Court also
observed rightly that no documents were adduced by the plaintiff to
show that at present she was in possession and also making payment of
rent to the landlord defendant.


9. In view of these materials, the injunction could not have
been confirmed by the First Appellate Court as well as by the High
Court in the second appeal. We do not see any reason to interfere
with the impugned order passed by the High Court. The special leave
petition is dismissed. Needless to state that the interim orders
passed by this Court in special leave petition and the contempt
petition, stand vacated.


10. We may also note that one Balu Khandu Ramoshi had filed a
title suit, bearing No.636 of 2012, which is pending before the Joint
Civil Judge, Senior Division, Pune. Mr. Manish Pitale has appeared on
behalf of the aforesaid plaintiff by filing I.A No.6 of 2013. The
present proceedings are arising out of the suit for injunction filed
by the plaintiff Edna Samuel. Those proceedings filed by Balu Khandu
Ramoshi will be decided on their own merits. I.A No.6 of 2013 stands
disposed of accordingly.










CONTEMPT PETITION (CIVIL) NOS.103/2012 and 276/2012:


11. In view of the order passed by us in the special leave
petition above-mentioned, these contempt petitions are also disposed
of.




........................J
(H.L. GOKHALE)








........................J
(DIPAK MISRA)


New Delhi;
March 20, 2013.


















































ITEM NO.6 COURT NO.12 SECTION IX

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS


Petition(s) for Special Leave to Appeal (Civil) No(s).28538/2011

(From the judgement and order dated 08/07/2011 in SA No.257/2011 of the
HIGH COURT OF BOMBAY)

EDNA SUSHILA SAMUEL Petitioner(s)

VERSUS

WAMAN KRISHNA GALANDE (D) THR.LRS. & ORS. Respondent(s)

(With appln(s) for vacation/variation of ad-interim order, exemption from
filing O.T., impleadment and office report)

WITH

CONMT.PET.(C) NO. 103 of 2012 in SLP(C) No.28538/2011

CONMT.PET.(C) NO. 276 of 2012 in CONMT.PET.(C) NO. 103/2012
(With application for exemption from filing O.T.)


Date:20/03/2013 These Petitions were called on for hearing today.


CORAM :
HON'BLE MR. JUSTICE H.L. GOKHALE
HON'BLE MR. JUSTICE DIPAK MISRA



For Petitioner(s) Mr. Amol Chitale,Adv.
Ms. Pragya Baghel,Adv.


For Respondent(s) Mr. V.A. Mohta,Sr.Adv.
Mr. Indu Malhotra,Sr.Adv.
Mr. Prakash Vitthalrao Botre,Adv.
Mr. Pravin Satale,Av.
Mr. Anand Prakash Botre,Adv.
Mr. Ankur Gupta,Adv.
Mr. Rajiv Shankar Dvivedi,Adv.
Mr. Vanshdeep Dalmia,Adv.
Mr. Kush Chaturvedi,Adv.

-2-


In I.A. No.6/13 Mr. Manish Pitale,Adv.
Mr. Sunil Kumar,Adv.
Mr. Chander Shekhar Ashri,Adv.




UPON hearing counsel the Court made the following
O R D E R


Heard the learned counsel for the parties. The special leave
petition is dismissed in terms of the signed order. Needless to state
that the interim orders passed by this Court in special leave petition
and the contempt petition, stand vacated.
The contempt petitions are also disposed of in view of the
order passed in the special leave petition.




(A.S. BISHT) (SNEH LATA SHARMA)
COURT MASTER COURT MASTER

(Signed order is placed on the file)

Wakf Act, 1995: s.83(5) - Wakf Tribunal - Power of - HELD: Wakf Tribunal is deemed to be a civil court and has the same powers as are exercised by civil court under the Code of Civil Procedure while trying a suit or executing a decree or order - Civil courts are competent to issue injunctions in terms of Or. 39, rr. 1 and 2 and s.151 CPC - Similar orders can, therefore, be passed by the Wakf Tribunal also in suits that are legally triable by it - If the Wakf Tribunal, upon consideration of relevant facts and circumstances, comes to the conclusion that a case for grant of interim injunction has been made out, it shall be free to issue any such injunction - Code of Civil Procedure, 1908 - Or. 39, rr. 1 and 2 and s.151 - Injunctions. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 492 of 2003. From the Judgment & Order dated 24.01.2002 of the High Court of Judicature at Madras in CRP No. 1430 of 2001. K.V. Viswanathan, B. Ragunath (for Vijay Kumar) for the Appellants. K. Ramamoorthy, Hari Shankar K., Vikas Singh Jangra for the Respondents.

SYED MOHIDEEN & ANR.
v.
RAMANATHAPURA PERIA MOGALLAM JAMATH & ORS.
(Civil Appeal No. 492 of 2003)
JULY 21, 2010
[MARKANDEY KATJU AND T.S. THAKUR, JJ.]
2010 (8) SCR 777
The following order of the Court was delivered
ORDER
The application for substitution is allowed.
Heard learned counsel for the parties.
This appeal has been filed against the impugned order of the
High Court of Judicature at Madras dated 24th January, 2002
passed in C.R.P. No.1430 of 2001.
The facts in detail have been set out in the impugned order and
hence we are not repeating the same here.
Having gone through the impugned order, we noticed from
paragraphs 20 & 21 of the impugned order that the High Court has
only observed that certain points were not considered by the Wakf
Tribunal which should have been taken into consideration. Hence,
the High Court remanded the matter.
We agree with the aforesaid observations of the High Court and
see no reason to interfere with the same. We, however, may make
it clear that in terms of Section 83(5) of the Wakf Act, 1995 the
Wakf Tribunal is deemed to be a civil court and has the samepowers as are exercised by civil court under the Code of Civil
Procedure, 1908 while trying a suit or executing a decree or order.
The civil courts are in turn competent to issue injunctions in terms of
Order XXXIX Rules 1 and 2 and Section 151 C.P.C. Similar orders
can, therefore, be passed by the Wakf Tribunal also in suits that are
legally triable by it if a case for grant of such injunction or direction
is made out by the party concerned. These observations shall not,
however, be understood to mean that we are expressing any
opinion on whether a case for grant of an injunction had been made
out in the matter at hand. All that we wish to clarify is that if the
Wakf Tribunal upon consideration of all the relevant facts and
circumstances comes to the conclusion that a case for grant of
interim injunction has been made out it shall be free to issue any
such injunction. With these observations the appeal is dismissed.
The Tribunal shall take a view uninfluenced by any observations
made in this order or the order impugned before us. No costs.

Section 213. Right as executor or legatee when established. (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of a authenticated copy of the will annexed…………… (ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.- Now by the Indian Succession [Amendment] Act, 1962, the section has been made applicable to wills made by Parsi dying after the commencement of the 1962 Act.- We have shown above that it is applicable to Parsis after the amendment of the Act in 1962 and to Hindus who reside within the territories which on 1.9.1870 were subject to the Lt. Governor of Bengal or to areas covered by original jurisdiction of the High Courts of Bombay and Madras and to all wills made outside those territories and limits so far as they relate to immovable property situate within those territories and limits.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Writ Petition (civil) 137 of 1997
Writ Petition (civil) 674 of 1998
PETITIONER:
CLARENCE PAIS & ORS.
 Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT: 22/02/2001
BENCH:
S. Rajendra Babu & R.C. Lahoti
JUDGMENT:
J U D G M E N TL...I...T.......T.......T.......T.......T.......T.......T..J
RAJENDRA BABU, J. :
 These two writ petitions have been filed challenging the
validity of Section 213 of the Indian Succession Act, 1925
(hereinafter referred to as the Act] as unconstitutional
and to restrain the Union of India from enforcing the
provisions thereof against the Indian Christians.
 In Writ Petition (C) No. 137 of 1997, petitioner No. 1
is an Indian Christian and a citizen of India. He has been
in the legal profession for about 48 years, and on account
of experience gained in having appeared in many probate
cases and had occasions to obtain probate of his fathers
Will, his experience has made him decide to file this writ
petition. Petitioner No.2 is a Catholic Association of
Dakshina Kannada, Karnataka. It is submitted that the
effect of taking out probate of a Will is to establish the
genuineness or validity of the Will and the grant of probate
is not a condition precedent to the vesting of the estate in
the executor in light of the provisions of Section 211 of
the Act. Section 211 of the Act provides for vesting of the
property in the executor or administrator, as the case may
be, of a deceased person in his legal representative for all
purposes. However, when the deceased is a Hindu,
Muhammadan, Buddhist, Sikh, Jaina or Parsi nothing contained
in the Act shall vest in an executor or administrator any
property of the deceased person, which would otherwise have
passed by survivorship to some other person. Section 213(1)
requires that no right as executor or legatee under a Will
can be established in a Court of Justice without obtaining
probate or letters of administration of the Will under which
such right is sought to be established. Section 57 of the
Act makes it clear that the provisions of that part which
are set out in Schedule III subject to the restrictions and
modifications specified therein, shall apply to all Wills
and codicils made by any Hindu, Buddhist, Sikh or Jaina
after the first September, 1870 who are originally residents
in the jurisdiction of the High Courts of Judicature at
Madras and Bombay or subject to the jurisdiction ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Lieutenant Governor of Bengal and to all such Wills and
codicils made outside those territories and limits so far as
relates to immovable property situate within those
territories or limits and to all Wills and codicils made by
any Hindu, Buddhist, Sikh or Jaina on or after the first day
of January, 1927 to which those provisions are not applied
by clause (a) and (b), provided that marriage shall not
revoke any such Will or codicils. In view of the aforesaid
provisions, there is compulsory requirement of probating a
Will to establish such a right by virtue of the provisions
of Section 213 which is made applicable and is restricted to
Indian Christians and certain other categories of persons
professing Hindu and other faiths. The contention of the
petitioner is that there is no rational or discernible basis
for making the requirement of probate necessary for only a
limited section of Indian citizens such as Indian Christians
excluding other sections. The Indian Succession Act, 1925
repealing the Indian Succession Act, 1865 was enacted by
Parliament with a view to consolidate the law applicable to
intestate and testamentary succession in India and, as a
consequence no intentional change in the law was made at
that stage. While no distinction is made with respect to
establishing a right to property of a person dying intestate
belonging to different communities and professing different
faiths, Christians alone are subjected to this requirement.
 In Writ Petition (C) No. 674 of 1998 petitioner is an
Indian Christian who belongs to Roman Catholic community
residing in the State of Kerala. The petitioner was the
sole beneficiary of a registered Will dated 15.12.1986
executed by his aunt Mrs. Lissa Jos Arakal owner of a flat
No. 5, Ashiana Apartment, Pitam Pura, Delhi. She was a
Christian and she remained unmarried till her death. Out of
love and affection towards the petitioner she executed a
Will on 15.12.1986 bequeathing her entire rights in respect
of the said flat in favour of the petitioner. She died on
9.8.1991 at Lourdes Hospital, Kochi. The petitioner
received a letter in August 1993 from the Secretary of M/s
Loyola Co- operative Housing Society, Ashiana Apartments,
Road No. 41, Pitam Pura, Delhi stating that the committee
of the Society had decided not to hand over the flat to him
without any court direction. The petitioner also informed
the Society not to transfer the said flat to any one else
other than himself. However, he received a reply from the
Society stating that Mr. Barley Arakal is the nominee of
the testatrix as per their record and as such since there is
a dispute regarding the property the status quo will be
maintained until further orders. It is stated that the
petitioner is not in a position to establish his legal right
over the property in question or to obtain any relief from
the court on account of the fact that he is a Christian who
is bound by the restriction provided under Section 213 of
the Act and since Section 213 of the Act comes in the way of
exercising his right, the petitioner is challenging the
validity of the said provision for identical reasons as set
forth in the connected writ petition. It is also brought to
our notice in these proceedings that in view of the harsh
procedure contemplated in the provisions under challenge the
Kerala Legislature has enacted an amendment known as Indian
Succession (Kerala Amendment) Act, 1986 dated 14.3.1997 by
which sub-section (2) of Section 213 of the Act has been
amended to the effect that after the word Muhammadans the
words or Indian Christians shall be inserted. It is thus
evident from this provision that it would apply to the State
of Kerala in respect of the property held by the deceasedhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
but it is not clear whether the amendment would apply to the
property of a testator who belongs to the State of Kerala in
respect of the property situated outside the State of
Kerala, as in the present case. The petitioner points out
the anomaly arising in the law. Thus a Christian residing
in the State of Kerala owning property therein if dies after
making a Will, the legatee thereto need not to obtain a
probate in terms of Section 213 of the Indian Succession Act
before establishing their right, while those residing in
other parts of the country are required to do so. The
anomaly pointed out by the petitioner is that the Will is
made in respect of a property situate in some part of the
country other than Kerala.
 The defence taken by the Government of India is that the
members of the Christian community are not put to any
discrimination and they are compelled to obtain probate or
letters of administration of the Wills only by way of rule
of evidence and procedure and it is intended to provide for
a right of means of establishing the genuineness of a Will
conclusively. So far as marriage and divorce, infants and
minors, adoption, wills, intestacy and succession, joint
family and partition and all matter in respect of which
parties in judicial proceedings were immediately before the
commencement of the Constitution subject to their personal
law, it is open to the State Legislatures to undertake any
legislation of the nature of Section 213 of the Act. The
State Governments bring in changes in personal law from time
to time as per the social conditions prevailing in the
particular States. Therefore, the amendment made in the
State of Kerala would not discriminate the persons residing
in other parts of the country. The contention is that the
classification has achieved social acceptance as is evident
from the fact that it has been in existence in the statute
book for a quite long time and it is not established that
how such classification in the statute suffers in any manner
from discrimination, and the provisions being procedural in
nature are intra vires to the Constitution. It is further
submitted that the Central Government has been consistently
following a policy of non-interference in the personal laws
of the minority communities unless the necessary initiative
for amendments or repeal from a majority or sizable crosssection of the community arises.
 On several representations having been made in this
regard by the Christian community in India amendment was
sought to be introduced by way of a Bill to amend Section
213 of the Act to bring Christians at par with other
communities who are not required to obtain probate. The
grievance of the petitioners in these cases, it is stated,
is well brought out in the Statement of Objects and
Reasons dated May 13, 1942 in respect of proposed amendment
of Section 213 which reads as under:-
 Prior to 1901, Indian Christians laboured under a
serious grievance, namely, that they were compelled to
obtain probate of wills and letters of administration with
liability to pay death duties on the death of every owner of
property under the Indian Succession Act X of 1865, while
Hindus and Muslims were exempt from the provisions of the
Act. They have since been partially relieved by being
placed practically on the same footing as their
non-Christian countrymen in cases of intestacy under the
Indian Christian Estates Administration Act VII of 1901;
but where the deceased has left a will, they are still boundhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
to obtain probate and pay probate duty as required by
section 213 of the Indian Succession Act XXXIX of 1925, a
section which does not apply to will of Hindu, Buddhists,
Sikhs or Jains except where such wills are of the class
specified in clauses (a) and (b) of section 57 and to all
wills of Muhammadans.
 The necessity of making wills has been imposed upon
Indian Christians by the provisions of the Indian Succession
Act as to intestate succession being made applicable to
them, which are far in advance of their usages and are
derived from English law. It is felt as a serious hardship
that in such circumstances Indian Christians should be
compelled to obtain probate and should be made liable to pay
death duties while their non-Christian countrymen to whom
wills are a luxury are exempt. From this injustice they
should be relieved by placing Indian Christians on the same
footing as Hindus and Muhammadans in Sections 213 and 370 of
the Act.
Sections 57 and 213 of the Act provide as follows :
 57. Application of certain provisions of Part to a
class of wills made by Hindus, etc. The provisions of this
Part which are set out in Schedule III shall, subject to the
restricts and modifications specified therein, apply
 (a) to all wills and codicils made by any Hindu,
Buddhist, Sikh or Jaina, on or after the first day of
September, 1870, within the territories which at the said
date were subject to the Lieutenant-Governor of Bengal or
within the local limits of the ordinary original civil
jurisdiction of the High Courts of Judicature at Madras and
Bombay; and
 (b) to all such wills and codicils made outside those
territories and limits so far as relates to immovable
property situate within those territories or limits; and
 (c) to all wills and codicils made by any Hindu,
Buddhist, Sikh or Jaina, on or after the first day of
January, 1927, to which those provision:
 Provided that marriage shall not revoke any such will or
codicil.
 Section 213. Right as executor or legatee when
established. (1) No right as executor or legatee can be
established in any Court of Justice, unless a Court of
competent jurisdiction in India has granted probate of the
will under which the right is claimed, or has granted
letters of administration with the will or with a copy of a
authenticated copy of the will annexed.
 (2) This section shall not apply in the case of the
wills made by Muhammadans, and shall only apply-
 (i) in the case of wills made by any Hindu, Buddhist,
Sikh or Jaina where such wills are of the classes specified
in clauses (a) and (b) of section 57; and
 (ii) in the case of wills made by any Parsi dying, after
the commencement of the Indian Succession (Amendment) Act,
1962, where such wills are made within the local limits of
the ordinary original civil jurisdiction of the High Courtshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
at Calcutta, Madras and Bombay and where such wills are made
outside those limits, in so far as they relate to immovable
property situate within those limits.
 Hindu Wills Act, 1870 is the forerunner of Section 57 of
the Act. This Section without the proviso together with
Schedule III except Article (5) is Section 2 of Hindu Wills
Act, 1870 as amended by Section 154 of the Probate and
Administration Act, 1881. The proviso is proviso to Section
3 of the Hindu Wills Act. Thus, the scheme of the said
enactment is retained in Section 57 of the Act.
 The scope of Section 213(1) of the Act is that it
prohibits recognition of rights as an executor or legatee
under a will without production of a probate and sets down a
rule of evidence and forms really a part of procedural
requirement of the law of forum. Section 213(2) of the Act
indicates that its applicability is limited to cases of
persons mentioned therein. Certain aspects will have to be
borne in mind to understand the exact scope of this section.
The bar that is imposed by this section is only in respect
of the establishment of the right as an executor or legatee
and not in respect of the establishment of the right in any
other capacity. The section does not prohibit the will
being looked into for purposes other than those mentioned in
the section. The bar to the establishment of the right is
only for its establishment in a court of justice and not its
being referred to in other proceedings before administrative
or other Tribunal. The section is a bar to everyone
claiming under a will, whether as plaintiff or defendant, if
no probate or Letters of Administration is granted. The
effect of Section 213(2) of the Act is that the requirement
of probate or other representation mentioned in sub-section
(1) for the purpose of establishing the right as an executor
or legatee in a court is made inapplicable in case of a will
made by Muhammadans and in the case of wills coming under
Section 57(c) of the Act. Section 57(c) of the Act applies
to all wills and codicils made by any Hindu, Buddhist, Sikh
or Jain, on or after the first day of January, 1927 which
does not relate to immovable property situate within the
territory formerly subject to the Lieutenant-Governor of
Bengal or within the local limits of the ordinary civil
jurisdiction of the High Courts of Judicature at Madras and
Bombay, or in respect of property within those territories.
No probate is necessary in the case of wills by Muhammadans.
Now by the Indian Succession [Amendment] Act, 1962, the
section has been made applicable to wills made by Parsi
dying after the commencement of the 1962 Act. A combined
reading of Sections 213 and 57 of the Act would show that
where the parties to the will are Hindus or the properties
in dispute are not in territories falling under Section
57(a) and (b), sub-section (2) of Section 213 of the Act
applies and sub-section (1) has no application. As a
consequence, a probate will not be required to be obtained
by a Hindu in respect of a will made outside those
territories or regarding the immovable properties situate
outside those territories. The result is that the
contention put forth on behalf of the Petitioners that
Section 213(1) of the Act is applicable only to Christians
and not to any other religion is not correct.
 We have shown above that it is applicable to Parsis
after the amendment of the Act in 1962 and to Hindus who
reside within the territories which on 1.9.1870 were subject
to the Lt. Governor of Bengal or to areas covered byhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
original jurisdiction of the High Courts of Bombay and
Madras and to all wills made outside those territories and
limits so far as they relate to immovable property situate
within those territories and limits. If that is so, it
cannot be said that the section is exclusively applicable
only to Christians and, therefore, it is discriminatory.
The whole foundation of the case is thus lost. The
differences are not based on any religion but for historical
reasons that in British Empire in India, probate was
required to prove the right of a legatee or an executor but
not in Part B or C States. That position has continued
even after the Constitution has come into force. Historical
reasons may justify differential treatment of separate
geographical regions provided it bears a reason and just
relation to the matter in respect of which differential
treatment is accorded. Uniformity in law has to be
achieved, but that is a long drawn process. Undoubtedly,
the States and Union should be alive to this problem. Only
on the basis that some differences arise in one or other
States in regard to testamentary succession, the law does
not become discriminatory so as to be invalid. Such
differences are bound to arise in a federal set up.
 The learned counsel for the Petitioners relied on the
decisions in B.Venkataramana vs. State of Madras & Anr.,
AIR 1951 SC 229, Sheokaransingh vs. Daulatram, AIR 1955
Raj. 201, State of Rajasthan & Ors. vs. Thakur Pratap
Singh, AIR 1960 SC 1208, Mrs.Hem Nolini Judah vs. Mrs.
Isolyne Sarojbashini Bose, 1962 Supp.(3) SCR 294, Mary Sonia
Zachariah vs. Union of India, 1995(1) KLT 644, Ahmedabad
Women Action Group (AWAG) & Ors. vs. Union of India, 1997
(3) SCC 573 and Preman vs. Union of India, 1998(2) KLT
1004. However, in the light of the above conclusion, it is
unnecessary to refer to those decisions though some of them
may have bearing in analysing and understanding the scope of
the provisions which are made applicable exclusively to
Christians as it happened in the case of Section 118 of the
Act or in the case of the Indian Divorce Act. Therefore, we
have not adverted to any one of these provisions. If
Christians alone had been discriminated against by treating
them as a separate class, we think the argument could have
been understood and merited consideration.
 In that view of the matter, we do not think there is any
merit in these petitions and the same stand dismissed@@
 JJJJJJJJJJJJJJJJJJJJJJJJJJJ
accordingly. No costs.@@
JJJJJJJJJJJJJJJJJJJJJJJ
S. RAJENDRA BABU
R.C. LAHOTI
February 22, 2001.

dying declaration = “Though a dying declaration is entitled and is still recognised by law to be given greater weightage but it has also to be kept in mind that the accused had no chance of cross-examination. Such a right of cross examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists tha the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.” So far as the statement of PW3 – Prem Chand recorded under Section 161, Cr.P.C. marked as Exh. P6 is concerned, the deceased was only abusing her father in law and that was not even corroborated by PW4 or PW5 and PW3 himself turned hostile. Due to discrepancies and contradictions between the two dying declarations and also in the absence of any other reliable evidence, in our view, the High Court is justified in reversing the order of conviction which calls for no interference by this Court. In view of above, the appeal is, therefore, dismissed.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 427 OF 2007
State of Rajasthan … Appellant
Versus
Shravan Ram & Anr. … Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. This is an appeal by the State of Rajasthan against the
Judgment in D.B. Criminal Appeal No. 124 of 2001 passed by
the High Court of Rajasthan. The Additional Sessions Judge
convicted the accused persons under Section 302, IPC and
sentenced them for life imprisonment with fine which was
reversed by the High Court and acquitted the accused persons.
2. The prosecution case is as follows:
Guddi, the deceased, was admitted in the hospital on
11.09.1998 with ninety nine per cent burn injuries. Parcha
Page 2
2
Bayan (Ex.P14A) of the deceased was recorded by ASI, Ram
Kishan and signed by SHO Mohan Lal PW13 in the hospital. On
the basis of the said Parcha Bayan, FIR No. 300/98 was
registered at police station Madanganj (Ajmer) against the
accused persons under Section 307, IPC. During treatment,
Guddi died at about 10AM on the same day and the case was
converted into Section 302, IPC. During the course of
investigation, both the accused persons were arrested on
12.09.1998, first accused is the father-in-law and second
accused is the husband. The accused persons denied the
charges and the case went to trial. On the side of the
prosecution 14 witnesses were examined. The Additional
Sessions Judge, placed considerable reliance on the dying
declaration stated to have been made before PW 3 Prem
Chand, a neighbour which find a place in the statement (Ex. P6)
made by him to the police under Section 161 of Cr.P.C. PW3
has stated that the deceased had raised hue and cry after the
burn injuries and abused the father-in-law - Sharvan Ram and
based on the evidence of PW3 and his 161 statement, the
Session Court found the accused persons guilty. Page 3
3
3. Following are the circumstances which weighed with the
Additional Sessions Judge:
(i) That Smt. Guddi, aged 19 years died after two years
of her marriage due to 99% burn injuries after
pouring kerosene on her enlightening match stick,
therefore the death is homicidal.
(ii) Deceased was in the custody of accused appellants
and simply on account of going outside the house
were the ‘occurrence took place’ custody will not be
ceased.
(iii) PW1 Nathu Lal (father), PW2 Kailash (uncle) and
PW13 Smt. Suraj Devi (mother) of the deceased in
their statements have deposed that Smt. Guddi was
not allowed by the accused appellants to go to her
matrimonial home.
(iv) The version of Prem Chand, PW3 in his statement
under Section 161 Cr.P.C. was considered as dying
declaration and not the Parcha Bayan. Reliance was
not placed by Additional Sessions Judge on Parcha
Bayan of deceased. 
(v) That the previous and subsequent conduct of
accused appellants was not satisfactorily explained in
their statements under Section 313 Cr.P.C as
required under Section 8 of the Evidence Act.
(vi) Since the death was caused in the custody of the
accused, therefore, the accused were also
Page 4
4
responsible for proving the fact of burn which was
specifically within their knowledge as required under
Section 106 of the Indian Evidence Act and further
according to Section 114 of the Indian Evidence Act
presumption has to be drawn against accused
appellants.
4. Shri Abhishek Gupta, learned counsel appearing for the
respondents submitted that the High Court has rightly held that
it is not safe to base conviction on the statement of PW 3 –
Prem Chand recorded under Section 161 Cr.P.C., who was
declared hostile. Further, it was also pointed out that in the
statement under Section 161 Cr.P.C., PW3 had not named the
second accused - Pappu Lal, husband of the deceased. Further,
it was also pointed out that PW4 Smt. Choti and PW5 Narayan,
who are neighbours, did not disclose the cause of death and
have not mentioned the names of any of the accused persons
in their evidence. Therefore, the dying declaration made
before Prem Chand remained uncorroborated and the High
Court has rightly held that no reliance could be placed on
uncorroborated dying declaration. Learned counsel, therefore,
submitted that the judgment of the High Court calls for no
interference.
Page 5
5
5. Shri Shoran Mishra, learned counsel appearing for the
State submitted that the High Court has committed an error in
not placing reliance on the evidence of PW3 and the statement
made by him before the Police under Section 161 Cr.P.C.,
wherein the name of the second accused has been mentioned.
Learned counsel also submitted that the High Court has failed
to notice the fact that the deceased was in the custody of the
respondents and therefore the burden of explaining the fact of
burning is on the accused persons. Further, they have failed to
provide any explanation when examined under Section 313
Cr.P.C. Learned counsel also pointed out that the High Court
has not properly appreciated the evidence by PW1 - Nathu lal
(father of the deceased), PW2 - Kailash (uncle of the deceased)
and PW14 – Suraj Devi (mother of the deceased). PW14 in her
deposition stated that the deceased father in law used to say
that Guddi is his wife and she had deposed that her daughter
had told if the above facts were disclosed she would be killed
by burning. Learned counsel, therefore, submitted that the
evidence of PW1, PW2 and PW14 coupled with the statement
made by PW3 would establish the guilt of the respondents and
the trial court has rightly convicted them.
Page 6
6
6. We notice that there is no eye-witness to the occurrence
and the entire case hinges upon few alleged dying declarations
made by the deceased and circumstantial evidence. PW11 –
Dr. P.C. Patni conducted the autopsy and gave report Ex.P14 in
which it is stated that the deceased had 99% burn injuries.
Post mortem was conducted by members of the board and in
their opinion cause of death was hypovolumic shock as a result
of ante-mortem burn and the death had occurred within 24
hours and there was no evidence of suicide or accidental fire
and therefore the case was homicidal.
7. We are in this case concerned with three dying
declarations which are as follows:
(i) ASI Kishan recorded Parcha Bayan of the deceased
which was signed by PW13 Mohan Lal in the presence
of the doctor who also signed the same. Further, the
accused also stated to have affixed his thumb
impression.
(ii) Dying declaration stated to have been made on
11.09.1998 , signed by the Sub-Divisional Magistrate
but neither the said dying declaration had been
exhibited nor the Sub-Divisional Magistrate had been
produced in evidence.Page 7
7
(iii) Dying declaration, as made by the deceased, before
PW 3, Prem Chand, which had been stated by him in
his statement under Section 161, Cr.P.C.
8. We find only two dying declarations are on record, the
second one mentioned above was not brought out in evidence.
Parcha Bayan of the deceased, based on which the case was
registered reads as follows:
“I stay in Maliyon ki Dhani Madanganj. Today morning
at around four-five, I had gone from home to near the
drain adjacent Shivji Temple to ease myself and I was
easing myself when at that time a person wearing
white pant and shirt came. And in his hand there was
a kerosene can, and poured over me. And lighting a
match poured over me. My terecot clothes
immediately caught fire. I fell in the drain and coming
out of the drain reached the house being inflamed and
narrated the whole incident to the family members. I
did not recognize the person. I being inflamed fell in
the drain and coming from the drain came being
inflamed and narrated the whole incident to the family
members, who have brought me to the hospital, my
marriage took place two years back.”Page 8
8
The third dying declaration stated to have been made by the
deceased before PW3 – Prem Chand was referred to in Part A to
B of Ex.P6 reads as follows:
“She was a woman who shouting at the site and was
abusing her father in law Shravan Ram that you be
doomed you ran away setting me on fire.”
9. We may now examine, whether statement of PW3 – Prem
Chand recorded under Section 161, Cr.P.C., marked as Ex.P6
could be accepted as a dying declaration, wherein it was stated
by him that the deceased was raising hue and cry and was
abusing her father in law for ablazing her. PW3 was declared
as hostile. Further, PW4 and PW5, the neighbours, who have
stated to have seen the deceased in a burning state and raising
hue and cry, neither disclosed the cause of death nor
mentioned the names of any of the accused persons.
Consequently, the dying declaration made by Prem Chand
remained uncorroborated. It is trite law that it is unsafe to base
reliance on the statement made under Section 161 Cr.P.C. as
dying declaration without any corroboration. Although
corroboration as such is not essential but it is expedient to
have the same, in order to strengthen the evidentiary value of
Page 9
9
declaration. This court in Arvind Singh v. State of Bihar
(2001) 6 SCC 407 while dealing with the case of oral dying
declaration stated as follows:
“Dying declaration shall have to be dealt with care and
caution. Corroboration is not essential but it is
expedient to have the same, in order to strengthen the
evidentiary value of declaration. Independent
witnesses may not be available but there should be
proper care and caution in the matter of acceptance of
such a statement as trustworthy evidence.”
10. This Court in Bhajju Alias Karan Singh v. State of
Madhya Pradesh (2012) 4 SCC 327 while dealing with
admissibility of dying declaration held as follows:
“The law is well settled that a dying declaration is
admissible in evidence and the admissibility is founded
on the principle of necessity. A dying declaration, if
found reliable, can form the basis of a conviction. A
court of facts is not excluded from acting upon an
uncorroborated dying declaration for finding
conviction. The dying declaration, as a piece of
evidence, stands on the same footing as any other
piece of evidence. It has to be judged and appreciated
in light of the surrounding circumstances and its
weight determined by reference to the principle
Page 10
10
governing the weighing of evidence. If in a given case
a particular dying declaration suffers from any
infirmity, either of its own or as disclosed by the other
evidence adduced in the case or the circumstances
coming to its notice, the court may, as a rule of
prudence, look for corroboration and if the infirmities
are such as would render a dying declaration so infirm
that it pricks the conscience of the court, the same
may be refused to be accepted as forming basis of the
conviction.”
11. Applying the above legal principles and examining the
facts on record, we are of the view that no reliance could be
placed on the statement made by PW3 – Prem Chand under
Section 161 Cr.P.C. before the police in the absence of any
corroboration. Over and above, PW3 has himself turned
hostile.
12. We will now deal with the question whether the dying
declaration stated to have been recorded by ASI Ramkishan,
signed by SHO Mohan Lal (PW13) as well as Dr. Anil Kumar Soni
would be sufficient to base the conviction.Page 11
11
13. First we will examine whether P14-A, Parcha Bayan, which
was converted into dying declaration is made in consonance
with Rule 6.22 of the Rajasthan Police Rules, 1965. Rule 6.22
of the Rajasthan Police Rules, 1965 reads as follows:
“Dying Declarations – (1) A dying declaration shall,
whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if
possible, be examined by medical officer with a view
to ascertaining that he is sufficiently in possession of
his reason to make a lucid statement.
(3) If no Magistrate can be obtained, the declaration
shall, when a gazetted police officer is not present, be
recorded in the presence of two or more reliable
witnesses unconnected with the police department
and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of
the injured person dying before his statement can be
recorded, it shall be recorded in the presence of two or
more police officers.
(5) A dying declaration made to a police officer should,
under Section 162, Code of Criminal Procedure, be
signed by the person making it.”
14. We notice, in this case, the above mentioned Rule is
substantially complied with, still in our view no reliance could
Page 12
12
be placed due to lack of corroboration over and above the fact
that even in Ex. P14-A, the deceased had not named the
accused persons. What she stated is that she did not recognize
the person who has ablazed her. Therefore, in the absence of
any corroboration and also not naming any of the accused
persons in Ex.P14A, no reliance could be placed on the same
even though the provision of Rule 6.22 of the Rajasthan Police
Rules, 1965 has been complied with.
15. This Court had occasion to consider the scope of multiple
dying declarations in Smt. Kamla v. State of Punjab (1993)
1 SCC 1, this Court held as follows:
“A dying declaration should satisfy all the necessary
tests and one such important test is that if there are
more than one dying declaration they should be
consistent particularly in material particulars.”
16. In Kishan Lal v. State of Rajasthan (2000) 1 SCC 310,
this Court held has follows:
“Examining these two dying declarations, we find not
only that they gave two conflicting versions but there
is inter se discrepancies in the depositions of the
witnesses given in support of the other dying
Page 13
13
declaration dated 6.11.1976. Finally, in the dying
declaration before a Magistrate on which possibly
more reliance could have been placed the deceased
did not name any of the accused. Thus, we have no
hesitation to hold that these two dying declarations do
not bring home the guilt of the appellant. High Court,
therefore, erred in placing reliance on it by
erroneously evaluating them.”
17. In Lella Srinivasa Rao v. State of A.P. (2004) 9 SCC
713, this Court had occasion to consider the legality and
acceptability of two dying declarations. Noticing the
inconsistency between the two dying declarations, the Court
held that it is not safe to act solely on the said declarations to
convict the accused persons.
18. In Amol Singh v. State of Madhya Pradesh (2008) 5
SCC 468, this Court interfered with the order of sentence
noticing inconsistencies between the multiple dying
declarations. It is not the plurality of the dying declarations but
the reliability thereof that adds weight to the prosecution case.
If a dying declaration is found to be voluntary, reliable and
made in fit mental condition, it can be relied upon without any
Page 14
14
corroboration but the statement should be consistent
throughout. However, if some inconsistencies are noticed
between one dying declaration and the other, the Court has to
examine the nature of the inconsistencies, namely, whether
they are material or not and while scrutinising the contents of
various dying declarations, in such a situation, the court has to
examine the same in the light of the various surrounding facts
and circumstances.
19. In State of Andhra Pradesh v. P. Khaja Hussain
(2009) 15 SCC 120, this Court rejected the appeal filed against
the acquittal holding that it was not a case where the variation
between the two dying declarations was trivial in nature.
20. In Sharda v. State of Rajasthan (2010) 2 SCC 85, this
Court has dealt with three dying declarations. Noticing
inconsistencies between dying declarations, this Court set aside
the sentence ordered by Sessions Judge as well as High Court
and held as follows:
“Though a dying declaration is entitled and is still
recognised by law to be given greater weightage but it
has also to be kept in mind that the accused had no
Page 15
15
chance of cross-examination. 
Such a right of cross examination is essential for eliciting the truth as an
obligation of oath. 
This is the reason, generally, the
court insists tha the 
dying declaration should be such
which inspires full confidence of the court of its
correctness. 
The court has to be on guard that such
statement of the deceased was not as a result of
either tutoring, prompting or product of imagination.
The court must be further satisfied that the deceased
was in a fit state of mind after a clear opportunity to
observe and identify the assailants. 
Once the court is
satisfied that the aforesaid requirement and also to
the fact that declaration was true and voluntary,
undoubtedly, it can base its conviction without any
further corroboration.”
21. We have gone through both the dying declarations and
there are not only material contradictions in both the
declarations but also inter se discrepancies in the depositions
of the witnesses as well. In the first dying declaration recorded
by ASI, signed by PW13, there is no mention of the names of
any of the accused persons and the deceased had stated that
she could not recognize the person who set her ablaze even
though the declaration was in consonance with Rule 6.22 of the
Rajasthan Police Rules, 1965.
Page 16
16
22. So far as the statement of PW3 – Prem Chand recorded
under Section 161, Cr.P.C. marked as Exh. P6 is concerned, the
deceased was only abusing her father in law and that was not
even corroborated by PW4 or PW5 and PW3 himself turned
hostile. Due to discrepancies and contradictions between the
two dying declarations and also in the absence of any other
reliable evidence, in our view, the High Court is justified in
reversing the order of conviction which calls for no interference
by this Court. In view of above, the appeal is, therefore,
dismissed.
 …………………………..J.
(K.S. Radhakrishnan)
…………………………..J.
(Dipak Misra)
New Delhi,
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.