JUDGMENT K.S. Rakhra, J.
1. This is defendant's second appeal against the judgment and decree dated 28.3.1987 passed by IInd Additional District Judge, Faizabad in Civil Appeal No. 301 of 1982 by which the decree dated 15.7.1982 of the trial court in Regular Suit No. 256 of 1981, Abdul Wahid and Ors. v. Iqbal Ahmed was reversed.
2. The substantial questions of law on which the appeal has been pressed and the learned counsel for the parties have addressed the Court are following :
(1) Whether the burden to prove that the sale deed was liable to be cancelled for the ground given in the plaint was on the plaintiff and whether the same was shifted to the defendants in this case.
(2) Whether adverse inference could be drawn against the defendant in the present case because he had failed to produce before the Court the original sale deed.
3. The suit of the plaintiff was for cancellation of sale - deed dated 25.8.1981, which is said to have been executed by plaintiff No. 1 Abdul Wahid in favour of defendant Iqbal Ahmed. The challenge to the sale deed was inter alia on the ground that no sale deed was executed by plaintiff No. 1 and the same has been forged presenting an imposter before the sub-registrar. It was further challenged on the ground of want of consideration, inadequacy of consideration, fraud, undue influence, unsound mind and the illness of the plaintiff No. 1. The defendant is the son of the real sister of the plaintiff No. 1.
4. The defendant resisted the suit inter alia on the ground that the sale deed was executed for consideration shown in the deed itself and it was conscious act of the plaintiff No. 1, who was of sound mind with all his faculties functioning properly and without exercise of any undue influence or of play of fraud. The defendant claimed that the plaintiff No. 1 had borrowed money from his father and could not repay the same but delivered possession to him and subsequently he expressed his intention to execute the sale deed of the land for a sum of Rs. 18,000 in favour of defendant in lieu of the said loan. Since Rs. 10,000 was already outstanding as loan and Rs 8,000 was given to the plaintiff No. 1 in this connection, the sale deed was executed in the sub-registrar's office.
5. On these pleadings, the trial court framed several issues including the issue as to whether the plaintiff had executed sale deed dated 25.8.1981 and whether it was liable to be set aside on the ground mentioned in para 7 of the plaint. The trial court decided against the plaintiff on the ground that the burden to prove the ground of challenge of the sale deed was on the plaintiff and the plaintiff had not adduced any oral evidence to prove them. The trial court also repelled the arguments that the burden was on the defendants to prove that the plaintiff No. 1 had executed sale deed on 25.8.1981 in his favour. It was of the opinion that the burden lay on the plaintiff and the said burden was not discharged. It observed that there was presumption as to the legality and validity of the registered sale deed unless proved otherwise.
6. The plaintiff challenged the verdict of the trial court in the first appellate court. The first appellate court reversed the decree primarily on the circumstances that the sale deed in question was not produced by the defendant and therefore, adverse inference was to be drawn. The first appellate court also observed that for comparison of the thumb impression of the plaintiff No. 1, production of the sale deed in question was necessary. The trial court observed that plaintiff No. 1 moved an application for direction to the defendant to produce the original sale deed but the trial court wrongly rejected the said application. It was observed that though nobody can be compelled to file document or evidence in respect of the case but since the sale deed was basis of the suit, it must have been brought on record. The Court drawing adverse inference observed that if there had been any truth in the contention of the respondent (defendant) that the sale deed was executed by plaintiff No. 1, it was mandatory duty of the respondent to file the sale deed. The plaintiff had insisted that the defendant should file sale deed in the Court because unless the original was filed and seen by the plaintiff, it could not he said by him whether it was bearing his thumb impression or not. In the circumstances, mentioned above, the first appellate court concluded that since the original sale deed was not produced by the defendant without any cause, adverse inference was to be drawn holding that it was not executed by plaintiff No. 1. Thus, on the basis of this inference and averment in the plaint alone, the first appellate court reversed the decree of the trial court.
7. Under Section 101 of the Indian Evidence Act, 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 and the burden of proof lies on that person. Section 102 of the said Act says that the burden of proof in a suit or proceeding lies on that person, who would fail if no evidence at all were given on either side. Section 103 of the said Act shows that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
8. In the case before us, the challenge to the sale deed was firstly on several grounds mentioned in para 7 of the plaint and secondly on the ground that no sale deed at all was executed by plaintiff No. 1 in favour of the defendant. The fact that the plaintiff was mentally deranged and that undue influence, fraud or misrepresentation were practised on him when he executed the sale deed, or that the sale deed was without consideration or the consideration was insufficient, etc. alleged in the plaint were the facts on which the plaintiff should have led evidence to discharge his burden of proof. Since no evidence, was led, the burden never shifted to the defendant to disprove these allegations.
9. So far as the plaintiff's averment that the sale deed was liable to be cancelled on the ground that it was obtained by putting forward some imposter in place of the plaintiff No. 1, here too burden of proof lay on the plaintiff and not on the defendant. The defendant was not asking for any relief and therefore, he was not under any obligation to prove the execution of the sale deed or to produce the original record before the Court. The plaintiff No. 1 or any of the witness could have been examined to prove that no such sale deed was executed and even necessary record could have been summoned from the sub-registrar's office for comparison of the thumb impression of plaintiff No. 1 with the thumb impression of the executor of the sale deed in question available in the sub-registrar's office. Had any such evidence been led by the plaintiff in support of their case, the burden would have shifted on the defendant. In the absence of any such evidence on record, issue could not be decided in favour of the plaintiff by drawing adverse inference on the ground that the defendant had not produced the original sale deed as desired by the plaintiff in the case.
10. The argument of learned counsel for the respondent was that the plaintiff in this case was of an unsound mind and that defendant was closely related to him and there was, therefore, a fiduciary relationship between the two. It was argued that because of this relationship and also because the plaintiff had also taken plea that the impugned sale deed does not bear thumb impression of the plaintiff No. 1, the burden of proof was on the defendant, who claimed that the sale deed in his favour was duly executed by plaintiff No. 1. Learned counsel placed reliance on the case of Daya Shanker v. Smt. Bachi and Ors., AIR 1982 All 376, wherein with reference to Section 111 of the Indian Evidence Act and Section 16 of the Contract Act, it was held that in a case of fiduciary relationship subsisting between contracting parties burden to prove genuineness of deed lies on dominating party and not on person challenging it. The Court held that the law presumes, prima facie, in favour of the deeds being, duly executed. So ordinarily the person who challenges the validity of a transaction on the ground of fraud, undue influence etc. and charges his opponent with bad faith has to discharge the burden of proof which rests on him. But the major exception to this rule is that the initial burden would not shift to the party who challenges the transaction and will instead be cast on the person who relies on such deed if a relationship of "active confidence" or fiduciary relationship subsists between the contracting parties, such as guardian and ward, agent and principal, doctor and patient, spiritual adviser and disciple, trustee and cestui qui trust etc. The probability of dominating over the will of another party arises either directly from the very nature of the relationship existing between the parties or sometimes from a peculiar handicap or disability from which the other party suffers. Thus, Section 111 of the Evidence Act has to be read along with the provisions of Section 16 of the Contract Act (1887) 36 Ch D 145 and Halsbury's Laws of England Third Edn. Vol. 17 para 1297, p. 672.
11. This legal position, in my opinion does not apply to the facts of the case before us. It is significant to note that the plaintiff No. 1 was not a retarded brain or unsound mind person since his childhood or birth. The plaintiffs alleged that the plaintiff No. 1 had attained the age of 80 years and since last 3-4 years on account of old age, illness etc., he had lost reasoning power and that he was not in a position to assess whether some act was to his benefit or to his disadvantage. Defendant No. 1 disputed this fact. It was, therefore, for the plaintiff to have proved that the plaintiff No. 1 was suffering from any deficiency. Since no evidence was led at all in this regard, it could not be said that he was suffering from any such deficiency or was dependent on some third person. Further defendant was the sister's son of the plaintiff No. 1. Although in the plaint, it has been mentioned that the plaintiff No. 1 was greatly relying on his sister, sister's husband and the defendant etc. but nothing was stated to show that he was dependent on defendant or the above relations. In para 4 of the plaint, it has been mentioned that plaintiff No. 1 used to consult these relations in his matter. The fact of consultation itself indicates that the plaintiff No. 1 was not of unsound mind as is being pretended by the plaintiffs. Nothing in the plaint shows that the defendant was in relationship of active confidence with regard to the plaintiff No. 1. There was no evidence on record to show that there was any fiduciary relationship between them. That being the position, the legal presumption would be in favour of the defendant of the sale deed being duly executed by the plaintiff No. 1 in favour of the defendant.
12. In the case of Ishwar Dass Jain (dead) v. Sohan Lal (Dead), 2000 (1) AWC 2.1 (SC) (NOC) : (2000) 1 SCC 434, the Apex Court has held that there is a presumption of correctness of endorsement made in the deed (mortgage deed) by Sub-Registrar under Section 58 of the Registration Act. This presumption no doubt is rebuttable but in the instant case, no evidence has been led to rebut the presumption.
13. In the case of A. Raghavamma and Anr. v. A. Chenchamma and Anr., AIR 1964 SC 136 (V. 51 C 10), it has been held that there is an essential distinction between the burden of proof and onus of proof : burden of proof lies upon the person, who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
14. In the case before us, the initial burden of proof was on the plaintiff but no attempt was made to lead evidence to show that the plaintiff No. 1 was in any manner handicapped and advantage of this was taken by defendant to play fraud by misrepresentation etc. Had the plaintiff led any evidence, onus could have shifted to the defendant if the evidence led by the plaintiff was reliable.
15. Learned counsel for the respondent also placed reliance on the case of Lachman Singh and Ors. v. Surendra Bahadur Singha and Ors., AIR 1932 All 527. This ruling has no application to the facts of the case before us. Reliance was next placed on Radha Raman v. Bhogi Ram, 1979 ALJ 231. This ruling has also no application to the facts of the case before us. Reliance was next placed on the case of Bechu v. Ram Bujharat, 1979 ALJ 792, wherein it was held that the endorsement by the registering authority under the Registration Act 1908, does not mean that the execution of the deed was a conscious act of the executor who was in that case, an old illiterate blind village women. It was held that the law gives special protection to such type of persons. In the circumstances of the case, it was held that besides the endorsement it had to be proved affirmatively that the executor really intended to execute the gift deed knowing its full import. As mentioned earlier, in the case before us, there was no evidence led to show that the plaintiff No. 1 was suffering from any deficiency entitling him to such Special protection. The initial burden which lay on the plaintiff, was not discharged.
16. Reliance was further placed by the learned counsel for the respondent on the cases of Iswar Bhai C. Patel v. Harihar Behera ; Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr., (2003) 8 SCC 745 and S.V.R. Mudaliar v. Mrs. Buhari, 1995 ACJ 493, in support of his contention that the defendant by not producing the original sale deed or not leading any evidence by examining himself gave rise to adverse inference. As stated earlier, since the burden of proof was on the plaintiff and onus had not shifted to the defendant, the defendant was not under any obligation to lead any evidence to show that the sale deed executed in his favour was a valid document executed for consideration. The legal presumption about the validity of the registered sale deed was not disturbed by any evidence on record.
17. In the case of Bala Shankar Maha Shankar Bhattjee v. Charity Commercial, Gujarat, AIR 1995 SC 167, it was held that the burden of proof means of two things (1) that a party has to prove an allegation before it is entitled to a judgment in its favour, and (2) that the one or the other of the two contending parties has to introduce evidence on a contested issue. The question of onus is material only where the party on which it is placed, would eventually lose if it failed to discharge the same. Where issues are, however, joined, evidence is led and such evidence can be weighed in order to determine the issues, the question of burden become academic.
18. In the circumstances mentioned above, the initial burden, which was on the plaintiff was not discharged and in view of the legal presumption in favour of the validity of the sale deed, the onus of proof of the validity of the deed never shifted to the defendant. That being the position, there was no situation for drawing any adverse inference against the defendant,
19. For the reasons given above, the finding of the first appellate court on the two points under consideration, was wholly erroneous and illegal and resulted into failure of justice. The appeal is, therefore, liable to be allowed. The appeal is allowed with costs and judgment and decree dated 23.3.1987 of the first appellate court is set aside and that the trial court is confirmed.