Chandra Kali vs Indrawati and Others

Ashok Pal Singh, J.

Challenge by way of this appeal is to the judgment and decree dated 09.05.1985 passed by the Addl. District Judge, Gonda in Civil Appeal No. 101 of 1983 whereby the appeal filed by the present appellant has been dismissed and the judgment and decree dated 06.04.1983 passed by the trial court thereby decreeing the suit filed by the respondent for cancellation of saledeed has been upheld.

Brief facts of the suit out of which the present proceedings emanate are that the present appellant and the respondent both are real sisters. The respondent filed the original suit for cancellation of the registered saledeed dated 17.04.1981 alleged to have been executed by their deceased father Brajraj in favour of the appellantdefendant for a consideration of Rs.42,000/. It was specifically alleged by the plaintiffrespondent that the said saledeed was a forged and fabricated document which had been got executed by the defendantappellant by getting her father impersonated by someone else. It was also alleged that Brajraj was very old and because of his ailments since few months prior to the alleged execution of the saledeed, he was unable to move around. The appellant denying the said allegations alleged that the saledeed was executed by deceased Brajraj himself after receiving entire saleconsideration. It was also alleged by the appellant that about 12 years prior to the filing of the present suit, the respondent had fled away from their father''s house and had got herself married against the wishes of their father Brajraj because of which Brajraj had become very enraged with her and had executed a will of his entire property in favour of the appellant. Brajraj had started living with the appellant and the appellant used to lookafter his needs. Brajraj had executed the disputed saledeed in her favour so as not to remain in any debt of the appellant.

The suit was decreed by the learned trial court vide its judgment and decree dated 06.04.1983 primarily on the basis of the finding that in the facts and circumstances the defendantappellant had failed to prove the execution of the saledeed by deceased Brajraj. The execution of saledeed in favour of one daughter only to the exclusion of the other and the need of the execution of the saledeed by the deceased in favour of the defendantappellant when already a will had been executed by him in her favour were considered by the trial court as doubtful circumstances. It appears that the same findings also found favour with the first appellate court in first appeal filed by the present appellant which affirmed the judgment and decree of the trial court while passing its impugned judgment and decree dated 09.05.1985.

Aggrieved by the aforesaid judgment and decree of the First Appellate Court, the defendantappellant has preferred this second appeal.

At the time of admission of the present appeal, following three questions as provided in the list given in the memo of appeal were formulated as substantial questions of law :

" (1) Whether merely because the plaintiff and defendant are real sisters, the sale deed could not be executed in favour of one daughter and the courts below could discard the saledeed on surmises ?

(2)Whether the courts below in not considering the evidence muchless oral evidence and deciding the case only on whims, the findings recorded by the courts below, stand vitiated ?

(3) Whether merely because a suit for cancellation has been filed, the burden of proving the saledeed will shift on the defendantappellant and the plaintiff could be absolved of the responsibility to prove that the saledeed was an outcome of fraud or was not executed ?

I have heard Shri U.S.Sahai, learned counsel for the appellant and Shri Rohit Tripathi, learned counsel for the respondent and perused the material available on record.

Submission of the learned counsel for the appellant is that the findings of the both the courts below are perverse as they have been arrived by them by ignoring basic principles of law of evidence. They also completely lost sight of the fact that the saledeed in question was a document having a presumption of law to have been executed by its executant and its'' execution was not being challenged by the executant himself. Specific allegations had been made of getting the saledeed executed by impersonation. In the circumstances, the burden was upon the plaintiffrespondent to have proved that the saledeed did not bear the thumb impression of the deceased and was an outcome of fraud. In the absence of any such discharge of burden of proof on the part of the respondent, the saledeed could not have been held to have not been executed by the deceased. More so, the respondent herself as D.W.1 and the attesting witness D.W.2 in their oral testimony proved the saledeed to have been executed by the deceased. Further submission is that findings of both the courts below that the saledeed could not be executed by the deceased in favour of one daughter depriving the other daughter or that when a registered will had already been executed by the deceased in favour of the appellant why the deceased would then have executed the saledeed also in her favour are simply based on mere surmises and conjecture. Submission of the learned counsel further is that a negative burden of proof had been placed by both the courts below upon the appellant to prove the genuineness and authenticity of the saledeed. The judgment and decree of both the courts below are thus, liable to be set aside and the suit dismissed.

On the other hand, learned counsel for the respondents supporting the findings of the courts below has submitted that the concurrent findings arrived by them cannot be dislodged in the second appeal, and as such the appeal is liable to be dismissed.

It is true that as a general principle of law, the concurrent finding of facts arrived at by the courts below cannot be interfered by the High Court in the second appeal under Section 100 CPC. However, it cannot be said to be a hard and fast rule. There are some exceptions to it.

In Hero Vinoth (Minor) Versus Sheshammal, 2006 AIR (SC) 2234, Hon''ble Apex Court has mentioned the following three exceptions in which concurrent findings of fact can be interfered by the High Court in the second appeal:

I. where the courts below have ignored the material evidence.

II. where the courts below have wrong inferences from proved facts by applying the law erroneously and

III. where the courts below have wrongly cast the burden of proof.

In the present case specific ground for cancellation of the saledeed was taken by the plaintiffrespondent that the alleged saledeed had not been executed by the deceased and was a result of impersonation. It transpires from the record that an application had also been moved by the respondent before the trial court to get the thumb impression of the deceased affixed on the saledeed examined and verified by an expert. However, no further effort was made by the respondent to press the said application. Both the courts below have also refused to draw any adverse inference on the failure of the respondent to get the thumb impression of the deceased upon the saledeed examined and verified by an expert. The reason given by them as per their findings was that the burden of proving the execution of the sale deed was upon the defendantappellant and that when she had failed to discharge the said burden there was no need left for the plaintiffrespondent to do so.

At this stage it will be useful to take into consideration the provisions of Sections 101,102 and 111 of Evidence Act which relates to burden of proof.

Section 101 of Evidence Act in nutshell provides that a person who asserts a particular facts has to prove the same.

Section 102 of Evidence Act provides that the burden of proof would lie on that person who would fail if no evidence at all were given on either side.

Section 111 of Evidence Act provides that where there is a question as to the goodfaith of a transaction between the parties, one of whom stands to the other in a position of active confidence, the burden of proving the goodfaith of the transaction will be on the party who is in a position of active confidence.

In K.S.Nanji and Co. Versus Jatashankar Dossa and others, AIR 1961 SC 1474 while considering the provisions of Section 101 of Evidence Act a clarification was made by the Hon''ble Supreme Court between the burden of proof and onus. It was held therein by the Apex Court that the burden of proof is on a plaintiff who asserts a right, and it may be having regard to the circumstances of each case, that the onus of proof may shift to the defendant. In context of the pleadings and evidence the Hon''ble Apex Court clarified the position of burden of proof and onus as follows :

"Under the evidence act there is an essential distinction between the phrase "burden of proof" as a matter of law and pleading and as a matter of adducing evidence. Under S.101 of the evidence act, the burden in the former sense is upon the party who comes to court to get a decision on the existence of certain facts which he asserts. That burden is constant throughout the trial; but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other."

A conjoint and plain reading of Sections 101 and 102 of Evidence Act makes it clear that the burden of proof would always remain upon a person who asserts that fact and in case no evidence is given by him in support of his said assertion, he would fail in proving that fact . Meaning thereby that the burden of proof remains constant; whereas, the onus may shift from time to time according to the facts and circumstances of each case depending upon the nature of the evidence adduced by the parties subject to presumption of fact or law raised in favour of one or the other.

In the present case, as no evidence at all was adduced by the plaintiffrespondent in support of his assertion that the saledeed had been executed not by the deceased but by someone else impersonating the deceased, he has miserably failed to discharge the burden which lay upon him under Sections 101 and 102 of Evidence Act. In the circumstances, there was no occasion of onus to have shifted upon the defendantappellant to prove that the saledeed was genuine and not result of fraud.

The question of applicability of Section 111 of Evidence Act which provides a protection to an executant of a transaction against a party who is in a position of active confidence or in a position to dominate his will, will not arise. Applicability of this section would have arisen only when instead of making allegations of execution by impersonation, the plaintiffrespondent had made allegations in his pleadings against the defendantappellant of having got the saledeed executed by the deceased himself by playing fraud upon him.

It is thus, evident that both the courts below have wrongly and erroneously shifted the burden of proving the execution of saledeed upon the appellant absolving the plaintiffrespondent to prove the saledeed to have not been executed by the deceased.

Nowhere in the law a restriction has been placed that a father cannot execute a saledeed of his property in favour of one of his children depriving the others. There is also no restriction in the law that where a will had already been executed in favour of a person, thereafter, the saledeed of the same property which has been bequeathed under that will cannot be executed in favour of the same person. As a matter of prudence or as an after thought such a step can be taken by a person to provide a clear title to the beneficiary.

The findings of the courts below on the above basis of so called doubtful circumstances are merely based on surmises and conjecture.

It is borne out from the record that a registered will was executed by the deceased in favour of the appellant 12 Years prior to the filing of the suit in the lower court. At that time there was no dispute between the two sisters. It''s execution by the deceased thus, further fortifies the fact that the deceased wanted his property to be inherited by the appellant only to the deprivation of the respondent. Thus, there was nothing unusual if subsequently, a saledeed was also executed by him in favour of the appellant. Execution of sale deed by the deceased depriving the respondent cannot be taken to be a doubtful or suspicious circumstance.

One another aspect that may not be lost sight of at this juncture is that the plaintiffrespondent has failed to make any attempt to get the registered will executed by the deceased in favour of the appellant set aside. As a result thereof even if the saledeed stands cancelled the entire property would be inherited by the appellant by virtue of the said will in as much as the will would still remain in existence. It is thus, clear that the plaintiffrespondent has omitted to sue for cancellation of aforesaid will, which was also a necessary relief for him to have been claimed.

In the aforesaid circumstances, all the three substantial questions of law are decided in favour of the appellant and on that basis, it is found that the courts below are patently erroneous.

As a result of the above discussion, the appeal is allowed and the impugned judgment and decree of the courts below are set aside and the suit filed by the respondents is dismissed. Parties to bear their own costs.