Hub Lal Singh (Deceased) And ... vs Sheo Balak Singh And Others
2013 Latest Caselaw 1304 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 196 of 2010
 

 
Appellants :- Hub Lal Singh (Deceased) And Others
 
Respondent :- Sheo Balak Singh And Others
 
Appellants Counsel :- Kunal Ravi Singh,V.K.S. Chaudhary
 
Respondent Counsel :- Shailendra Singh, Dr.R.Dwivedi, Kr. R.C.Singh
 

 
Hon'ble Sudhir Agarwal, J.

1. Heard Sri Kunal Ravi Singh, Advocate, for the appellants and Kunwar R.C. Singh, Advocate, for respondents 1 to 3.

2. The substantial questions of law, which has arisen in this case, are:

(1) Whether the statement of Smt. Kailashi, defendant-respondent no. 4 (now deceased and substituted by legal heirs) could be treated as her admission under Section 18 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") so as to qualify for an admission which needs no further proof under Section 58 of Act, 1872?

(2) Whether statement of Smt. Kailashi, defendant-respondent no. 4, after execution of sale-deed dated 8.10.1965, ought to have been considered in accordance with the principle as applicable to Pardanashin lady, considering the fact that she was an old lady of 65 years, widow and rustic village women?

(3) Whether the judgment of Lower Appellate Court (hereinafter referred to as "LAC") has complied with the directions issued by this Court by considering and deciding the issues whereupon this Court has remanded the matter vide judgment dated 5.12.2007 passed in Second Appeal No. 1818 of 1977?

3. Sri Kunal Ravi Singh, learned counsel for appellants, stated that statement of Smt. Kailashi, defendant-respondent no. 4 did not qualify to be an admission under Section 18 of Act, 1872 and placed reliance on this Court's decision in Smt. Phekni Vs. Board of Revenue U.P. at Allahabad and others 2011 (114) RD 658. He further contended that there were several contradictions in the statement of defendant-respondent no. 4 which have been ignored by Courts below. He lastly contended that this Court required LAC to consider two questions but those have not been addressed by LAC and, therefore, the impugned judgment of LAC is vitiated and in the teeth of the directions issued by this Court.

4. To appreciate above submissions, it would be necessary to have a bird eye view of factual background of the case in hand.

5. Alleging that Smt. Kailashi, widow of Sri Makhmal Singh, resident of Village Rasoolpur Vaina, pergana Bhognipur, District Kanpur (now part of District Kanpur Dehat) executed a contract for sale, dated 23.9.1965, with Sri Sheo Balak Singh, Taqdir Singh and Sant Singh, agreeing to execute sale-deed on a consideration of Rs. 3,000/- whereagainst a sum of Rs. 1,500/- was taken as earnest money, but thereafter she retracted and hurriedly executed a sale-deed on 8.10.1965 in favour of Hubblal Singh, son of Sri Lakhan Singh and Tika Ram Singh, son of Baldeo Singh, Original Suit No. 11 of 1966 was instituted by prospective vendees, namely, Sheo Balak Singh, Taqdir Singh and Sant Ram Singh, all real brothers and sons of Sri Kalicharan Singh impleading Smt. Kailashi as defendant no. 1 and Sri Hubblal Singh and Tika Ram Singh, as defendants no. 2 and 3. It was pleaded that sale-deed was to be executed within a period of three months but defendant no. 1 also retracted from her part of agreement though plaintiffs have always been ready and are willing for performance of the contract. The property in dispute compromises of a house (Kachcha) as also bhumidhari land, detailed at the bottom of plaint. The aforesaid deed of contract for sale is paper no. 6-Ka-1.

6. Defendant no. 1 admitted the case of plaintiffs to the extent that she is the owner of disputed property, had executed a contract for sale dated 23.9.1965 and obtained Rs. 1,500/- as earnest money and also handed over possession of disputed property to plaintiffs. It was further pleaded that she never denied execution of sale-deed but defendants no. 2 and 3 got the sale-deed executed in respect to disputed property by exerting undue pressure, forcibly, under threat of life tendered to defendant no. 1 without any consideration and obtaining her thumb impression on several papers. The aforesaid sale-deed is clearly the result of fraud, undue influence etc. In effect, defendant no. 1 supported the case of plaintiffs and raised serious dispute about the validity of sale-deed dated 8.10.1965 executed in favour of defendants 2 and 3.

7. Another written statement was filed by defendants no. 2 and 3 disputing possession of plaintiffs over the property in question. They pleaded that defendant no. 1 executed a valid sale-deed in their favour on 8.10.1965. The defendants no. 2 and 3 jointly held the grove in suit along with defendant no. 1 and she is a neighbour. Defendants no. 2 and 3 denied to have any knowledge of contract for sale dated 23.9.1965 and pleaded that sale-deed dated 8.10.1965 was executed in a bona fide manner and for valuable consideration. It is also said that they have purchased property except Kachcha house, shown at the bottom of plaint, by defendant no. 1, vide sale-deed dated 8.10.1965. In para 13 under the heading "Additional Pleas" they pleaded that defendant no. 1, Smt. Kailashi, is a Khandani of defendants no. 2 and 3 and also a close relative of plaintiffs and is their Bua. They alleged that agreement dated 23.9.1965 was actually non-est at the time of execution of sale-deed but has been subsequently manufactured, in collusion with one Mukut Singh, who bore enmity with defendants 2 and 3. Defendants 2 and 3 claimed possession over property in dispute.

8. In the context of pleadings between the parties, the Trial Court (hereinafter referred to as "T.C.") framed three issues:

"(1) Whether there was any agreement of sale between the plaintiff and defendant no. 1 as alleged in the plaint?

(2) Whether defendants 2 and 3 are bona fide transferees for value without notice and are protected U/S 41 of T.P. Act?

(3) To what relief if any against whom plaintiffs are entitled?"

9. The T.C. Found, besides the fact, that between the plaintiffs and defendant no. 1, there is no dispute about execution of contract for sale, evidence was also adduced to show that possession of agricultural plot was delivered to plaintiffs. In this regard, land revenue receipts were placed on record as Exhibits 9, 10 and 12 and also the documents showing water charges of irrigation, i.e., Exhibits 11 and 12. On the contrary, defendants 2 and 3 failed to prove that the said agreement to sale was prepared subsequent to execution of sale-deed as was pleaded by them in their written statement. Issue No. 1, accordingly, was decided in affirmative and in favour of plaintiffs.

10. Coming to Issue No. 2, T.C. found that defendants 2 and 3 have admitted on their own that sale-deed dated 8.10.1965 was executed only in respect to agricultural land and not the House, but, simultaneously, asserted that house was also in their possession. They failed to adduce best evidence, i.e., original sale-deed before T.C. which ought to have been in their possession, but, on the contrary, plaintiffs filed a certified copy of sale-deed as Exhibit-3 wherefrom T.C. noticed that sale-deed was attested by two witnesses Kandhai and Raghubir Singh and sale consideration mentioned therein was Rs. 2,500/- out of which Rs. 1,500/- alleged to have been paid as advance and Rs. 1,000/- was to be paid at the time of registration of sale-deed. To prove execution of sale-deed and possession, defendants 2 and 3 adduced three witnesses one, defendant 2 himself, i.e., Hubblal Singh, another an attesting witness, namely Raghubir Singh and third witness Ramdas for proving their possession over agricultural land.

11. Defendant 1 supported case of plaintiffs and challenged valid execution of sale-deed dated 8.10.1965 alleging that she was put under threat of life and no consideration was paid to her. She also stated to have lodged a report with Police in this connection and copy of the report was placed before Courts below as Ex. A-1. From the statements of Hubblal Singh and Raghubir Singh, T.C. found that passing of consideration and voluntary execution of sale-deed was not satisfactorily proved. Hubblal in his oral statement said that at the time of payment of Rs. 1,500/- to Smt. Kailashi, as advance consideration, for disputed land, Sri Mukut Singh and Raghu Nath Singh both were present but these two persons were not produced before Courts below by defendants 2 and 3. On the contrary, they were produced by plaintiffs and were subjected to cross-examination by counsel representing defendants 2 and 3. They clearly stated against what was pleaded, and sought to be proved by Sri Hubblal, defendant 2 himself. In the cross-examination, the Court found that there was not even a suggestion that alleged part payment of Rs. 1,500/- was made in their presence. The Court also found that defendants 2 and 3's pleading that Smt. Kailashi, defendant no. 1, was father's sister of plaintiffs was not correct and this fact could not be proved by them, at all. The Court held that Smt. Kailashi is sister of one Guru Dayal Singh and had no relation with plaintiffs, as alleged by defendants 2 and 3. Looking to the fact that Smt. Kailashi was an old and illiterate lady, and also the facts which she proved by deposing her own statement that she was put in threat of life etc. and considering evidence, otherwise adduced, by parties, Issue No. 2 was decided in negative and against defendants no. 2 and 3. Consequently, the T.C., i.e. Second Addl. Civil Judge, Kanpur decreed the suit vide judgment and decree dated 25.4.1967 directing defendants to execute sale-deed in respect to property in dispute in favour of plaintiffs and a permanent injunction, as prayed by the plaintiffs against the defendants no. 2 and 3, was also granted.

12. Defendants 2 and 3 came up in Civil Appeal No. 223 of 1967. During pendency of appeal, defendants 2 and 3 died and were substituted by their heirs and legal representatives. Similarly, plaintiffs 2, 3 and defendant no. 4 also died and were substituted by their heirs and legal representatives. This appeal came to be decided by LAC vide judgment dated 3.7.1969. Allowing the appeal, judgment of T.C. was reversed and the suit of plaintiffs was dismissed by LAC.

13. Plaintiffs, thereafter, came in Second Appeal No. 1657 of 1969 which was allowed by this Court vide judgment dated 22.1.1971. Setting aside judgment of LAC, this Court remanded the matter, observing, that Court below was required to consider aspects about lacks of consideration and relevant factors regarding bona fide purchase for value, and also, the question of execution of contract for sale.

14. Thereafter, LAC decided the matter again vide judgment and decree dated 25.7.1977. This time, LAC dismissed appeal of defendants 2 and 3. It gave rise to Second Appeal No. 1818 of 1977 filed by defendants 2 and 3. Again it was decided vide judgment dated 5.12.2007 and this Court while allowing appeal, held that LAC has not examined the dominant question about execution of agreement for sale. The Court said that the two aspects which were to be considered by LAC were, first, which was held to be main object, whether plaintiffs were able to prove execution of agreement for sale inasmuch if such execution itself is not proved, the suit will have to fail. The second question, which would arise in case first question is answered in affirmative, is, whether there was a bona fide purchase for value and also about the possession. This Court also observed that finding of Revenue Court about possession in mutation proceeding is always subject to independent adjudication on this aspect, by a Civil Court. The matter, thus, was remanded again. The LAC, now third time, has decided Civil Appeal No. 223 of 1967, by dismissing the same vide judgment and decree dated 21.11.2009 which has given rise to the present Appeal under Section 100 C.P.C.

15. Hence, it is third innings. First one at the instance of plaintiffs and rest two, by defendants 2 and 3, in the suit.

16. Sri Kunal Ravi Singh, learned counsel appearing for appellants, i.e., defendants 2 and 3, vehemently contended that issue relating to execution of contract for sale dated 23.9.1965 has been decided by LAC solely relying on the statement of defendant 1, treating it to be her admission, and, thereafter referring to Section 58 of Act, 1872, though the alleged admission of defendant 1 does not qualify to be so under Section 18 of Act, 1872. In the circumstances, the very basis to decide the question about execution of contract for sale dated 23.9.1965 is clearly erroneous, illegal which vitiates the very main issue and thereby nullifies the impugned judgment inasmuch LAC was bound to dismiss the suit.

17. Before coming to the question, whether statement of defendant 1 has been treated to be the sole basis, as an admission, by LAC, to decide about execution of contract for sale dated 23.9.1965, I would like to consider the legal submission advanced by learned counsel for appellants founded on Section 18 of Act, 1872.

18. 'Admission' is defined in Section 17 of Act, 1872. It reads as under:

"17. Admission defined.- An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."

19. The kind of circumstances in which "admissions" are made and are to be treated as "admissions" are provided in Section 18 to 20. Section 21 provides that the admissions are relevant and may be proved as against the person who makes them or his representative in interest but they cannot be proved by or on behalf of person who makes them or by his representative in interest, except in the cases provided in Clauses (1) (2) and (3) of Section 21. Section 21 of Act, 1872 reads as under:

"21. Proof of admissions against persons making them, and by or on their behalf.- Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:-

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission."

20. A party's admission, as defined in Section 17 of Act, 1872 fulfilling the requirement of Section 21 of Act, 1872 is a substantive evidence, proprio vigore. An 'admission', if clearly and unequivocally made, is the best evidence and though not conclusive, shifts the onus on to the maker.

21. In Delhi Transport Corporation Vs. Shyam Lal AIR 2004 SC 4271, it was held that admission is best piece of evidence against the person making it. However, it is open to the person making admission to show that the admission may not be acted upon. The admissions are of various kinds. They may be formal or informal. Formal admissions are made for the purpose of Trial Court and they are also of several kinds. Such admission are not generally received in other proceedings. Informal admissions, whether oral or in writing or by conduct, are made out of Court, in generality, at a time and under the circumstances when the person making it has no idea that the same would be used as admission for the purpose of any litigation. Such admissions, though not conclusive, but tends to shift burden of proof. An admission has been considered to be best evidence for the reason that Section 58 of Act, 1872 states that the fact admitted need not be proved. An admission in pleading means admission of an averment by the opposite parties. However, party making admission can not take advantage of it and, on the contrary, the party in whose favour it is made, may get its benefit.

22. Section 56 of Act, 1872 provides that no fact of which the Court will take judicial notice need be proved. Reading the aforesaid provision along with Section 58, a fact, if not disputed between the parties, need not be proved, unless the Court requires such admitted facts to be proved otherwise than such admissions.

23. The admission of defendant 1, thus, has to be looked into the light of, not only, Section 18 of Act, 1872 but what discern from a cumulative reading of various provisions, some of which are discussed above. The suit was instituted by three persons claiming that a contract for sale was executed with them by defendant 1, Smt. Kailashi. The fact, whether such an agreement was executed or not, obviously was in the knowledge of parties to the agreement, i.e., plaintiffs and defendant 1.

24. Defendant 1 in her pleadings, admitted this statement of fact made by plaintiffs in the plaint. Therefore, in view of above discussion of various provisions of Act, 1872, the plaintiffs were not required to prove the fact, whether the agreement was actually executed or not. However, the status of admission made by defendant 1 stood diluted by the fact that such admission was not made by her during continuance of her case in the subject matter inasmuch there was already a sale deed executed by defendant 1 in favour of defendants 2 and 3 and she ceased to had any interest in the property in dispute, i.e., subject matter of the suit at the time of filing her written statement.

25. This fact itself would not make any difference for the reason that once the statement made by plaintiff is not disputed by defendant 1, the executor of document, plaintiffs could have validly proceeded not to prove a fact which was not disputed by defendant 1. This fact was actually disputed by defendants 2 and 3, who are subsequent beneficiaries and have received interest in the subject matter of the suit. It was their pleading that agreement for sale was not actually executed at the relevant time but has been prepared subsequently. Here statement of defendants 2 and 3 also admits execution of document but explains by stating that this document was executed not on the date as stated, but subsequently, i.e. after execution of sale-deed. This admission on the part of defendants 2 and 3, which pre-supposes execution of document, i.e., agreement for sale, coupled with the statement of defendant 1, can be used safely by referring to Section 58 of Act, 1872 that the execution of document was admitted by parties. Hence plaintiffs stood discharged of their initial burden of proof, shifting the onus upon defendants 2 and 3 to prove that execution of document did not take place on 23.9.1965 but on a subsequent date, as was pleaded by them in their written statement.

26. The principle of burden of proof is well established and the onus lies upon the person who, if fails to prove, will have to suffer the consequences.

27. LAC has also not relied on the statement of defendant 1 solely treating it her admission but has discussed the entire statement of defendant 1 at length and looking to the natural, harmonious and consistent statement of narrating all the transactions which took place from time to time, as also the fact, that, the same was proved by other witnesses, namely, P.W. 1 Ganga Prasad Tripathi, the scriber of the agreement, and also by adducing witnesses Subedar Pradhan and Mukut Singh as well as Takdeer Singh, the statement of Stamp Vendor, Sri Ram Chandra Agarwal, who also produced Stamp Register showing sale of stamp on 22.9.1965 in the name of Smt. Kailashi and also the stand of defendants 2 and 3 that they have disputed agreement to sale on the ground that it was executed subsequently and not at the time as alleged, it has recorded the findings that agreement for sale has been executed at due time since defendants 2 and 3 had failed to prove that it was executed subsequently.

28. In this regard, it would be useful to refer the observations made by this Court in its judgment dated 22.1.1971 in the first round. This Court said that Stamp Paper, on which the agreement for sale has been inscribed, bore a particular date and unless there were circumstances to suggest otherwise, it would be normally presumed that date was correctly noted by Stamp Vendor. Mere allegation in the written statement that the agreement has been ante dated, without anything more, did not justify drawing of any presumption against plaintiffs. The above observation made it very clear that this Court also took the view that presumption lie in favour of plaintiffs was rebuttable only when it is proved otherwise by defendants which means that the onus lies upon defendants 2 and 3 to prove the alleged ante dating of agreement, as was pleaded by them, failing which execution of agreement had to be held valid, not only in view of non contest by defendant 1, but, also on account of various other facts and circumstances, including the fact that execution of document was also not disputed by defendants 2 and 3, but they tried to explain execution by terming it as ante dated for which onus lie upon them to prove, in which they failed. The finding of T.C. on Issue No. 1 in affirmative, i.e., in favour of plaintiffs was upheld and, in my view, rightly. In the aforesaid facts and circumstances and discussion made above, I find no reason but to return question no. 1 against the appellants.

29. Now I come to question no. 2. The facts have not been disputed that defendant 1 was an old, illiterate lady of rural area. The defendants 2 and 3 are close relative (ppsjs nsoj, i.e., sons of her husband's uncle). It is also proved from record that complaint with respect to threat to her life and forcible execution of sale-deed was made by her to the Police. She had clearly pleaded that defendant 2 on coming to know about execution of contract for sale, threatened for risk to her life, exerted undue pressure, force and coercion and, thereafter took her in Tehsil Pukhraya, whereat obtained her signatures on various documents and got sale-deed executed. She clearly disputed the factum of execution of sale-deed  in favour of defendants 2 and 3 and said that the same is forged, fictitious and fraudulent. Pleadings contained in para 7 of written statement of defendant 1 reads as under:

^^nQk 7& ;g fd etewu vjth nkok nQk 7 esa flQZ ;g rlyhe gS fd eqíkysg uEcj 2 o 3 eqíkysgk eqtho ds [kkunkuh gSa vkSj mudk ,d tcjnLr fxjksg gS] ckx futkbZ esa os eqíkysgk eqtho ds lkFk 'kkfey ckxnkj o 'kkfey dkfct Hkh jgs gSa] mUgksus tc ;g ns[kk fd eqíkysgk eqtho us tk;nkn futkbZ ds cspus dk bdjkjukek cgd eqíb;ku dj fn;k gS vkSj tk;nkn futkbZ ij eqíb;ku dk dCtk o vf/kdkj djk fn;k gS rks os eqíkysgk eqtho ls :"V jgus yxs vkSj eqíkysgk eqtho dks tku ls ekj Mkyus dh /kedh Hkh nh Fkh vkSj ml ij vuqfpr ncko Mky dj mls Mjk o /kedk dj rglhy iq[kjk;k ys x;s vkSj ogka eqíkysgk eqtho ls dbZ txg fu'kku vaxwBs cuok fy;sA ckn dks eqíkysgk eqtho dks mlds ?kj NksM+ fn;k vkSj ;g tkfgj fd;k fd mUgksusa eqíkysgk eqtho ls mldh vkjkth dk cSukek djok fy;k gSA nj vly mtjnkfj;k us cSukek le> dj dksbZ rgjhj eqíkysgk uEcj 2 o 3 ds gd esa ugha fy[kh vkSj u dfFkr cSukek mls i<+ dj lquk;k ;k le>k;k gh x;k vkSj u mlds ckjs esa eqíkysgk eqtho dks dksbZ dher gh gkfly gqbZ dfFkr cSukek egst QthZ] uqekb'kh o foyk cny gS vkSj eqíkysgk eqtho ls uktk;t ncko Mky dj Mjok o /kedk dj gh mDr cSukek djok;k x;k gSA^^

"Para 7- That para 7 of the suit admits only that Defendant Nos. 2 & 3 are kinspersons of the answering defendant forming a powerful group, sharing the disputed garden with the answering defendant, and holding possession over it with her. When they saw that the answering defendant had entered into an agreement in favour of the plaintiffs to sell the disputed property and had given the title & possession of the disputed property to them, they began to nurse ill-will towards the answering defendant and even threatened to kill her and took her to Tehsil Pukhraya by putting undue pressure and giving threats where they took the answering defendant's thumb impression at many places. Later on, they left the answering defendant at her home and showed that they had got a sale-deed executed by the answering defendant in respect of her land. As a matter of fact, considering it to be the sale-deed, the answering defendant did not write anything in favour of Defendant Nos. 2 & 3 nor was the alleged sale-deed read over and explained to her nor did the answering defendant receive any money in this respect. The alleged sale-deed is just forged, specious and without any consideration and the said sale-deed has been got executed by the answering defendant forcibly by giving threats to her." (English Translation by the Court)

30.   Besides, both the Courts below have recorded concurrent finding of fact that the possession of disputed property came in the hands of plaintiffs, after execution of agreement to sale. Defendants, therefore, had to prove bona fide and valid execution of sale-deed. Learned counsel for appellants contended that the onus lie upon plaintiffs to prove that  sale-deed was not executed validly while Courts below have proceeded by placing onus wrongly on the defendants. The submission is thoroughly misconceived. It is not initial onus which has been held to lie upon the defendants 2 and 3 but after initial burden, having been discharged by plaintiffs, it is the shifting of onus upon defendants 2 and 3, which has caused adjudication of Issue 2 against defendants 2 and 3.

31. Initial burden of proof, admittedly, would be on the plaintiff in view of Section 101 of Act, 1872 which talks of burden of proof, and says:

"Burden of proof.- 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."

32. The burden of proving a fact rests on the party who substantially asserts affirmative of issue and not upon the party who denies it; for a negative is usually incapable of proof. The provision is based on the rule, ie incumbit probatio qui dicit, non qui negat. In Constantine Line Vs. I S Corpn, (1941) 2 All England Report 165, Lord Maugham said;

"It is an ancient rule founded on consideration on good sense and should not be departed from without strong reasons."

33. A person who asserts a particular fact has to prove the same. Until such burden is discharged, the other party is not required to be called upon to prove his case. Whoever desires a Court to give judgment, dependent on the existence of facts which he asserts, must prove that those facts exist. The distinction between "burden of proof" and "onus" is that the former lies upon the plaintiff and never shifts but the "onus" shifts. Shifting of onus is a continuous process, in the evaluation of evidence. For example, in a suit for possession, based on title, once the plaintiff is able to create a high degree of probability so as to shift onus on the defendant, it is then for the defendant to discharge his onus and in absence of such discharge by defendant, burden of proof lying on plaintiff shall be held to have been discharged so as to amount to proof of plaintiff's title.

34. The above distinction between "burden of proof" and "onus" of proof has been explained in A.Raghavamma Vs. A. Chenchamma, AIR 1964 SC 136, followed in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr., (2003) 8 SCC 752.

35. Section 102 of Act, 1872 says that burden of proof in a suit would lie on a person who would fail if no evidence at all were given on either side. Here it is not degree of proof but the onus to lead evidence i.e. obligation to begin to prove a fact. The burden of proof as such has not been defined in the Act but looking to the substance and the context and spirit, it can be said that burden to establish case, loosely, can be said to be burden of proof.

36. In the present case, shifting of onus has to be looked into from the facts that the vendor, i.e., defendant 1 herself stated that defendants 2 and 3 are her close relatives and under the threat of life etc. the got the sale deed executed, forcibly, and without consideration. The plea of coercion, undue influence, fraud etc. has been taken specifically in para 7 of written statement. She has supported her pleading in her oral deposition also. The facts of this case, I find, justify shifting of burden upon the defendants 2 and 3 to prove that sale deed was executed validly, bona fidely and genuinely. In Anil Rishi Vs. Gurbaksh Singh AIR 2006 SC 1971, Apex Court in para 9 and 11 of the judgment said:

    "9. 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."

"11. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance."

37.    Pleading is not evidence, far less proof. Issues are raised on the basis of pleadings. The defendants 2 and 3 initially did not admit their relationship with defendant no. 1 and instead alleged that she is close relative of plaintiffs which fact was found false on both the counts inasmuch plaintiffs were not found to be in relation with defendant 1. On the contrary, defendants 2 and 3 were found in relation with defendant 1. The relationship between the parties was an issue and has been decided in a particular manner, i.e., against defendants 2 and 3. Issue not 2 was framed in the manner, if none of the parties adduce evidence, he, who shall fail, has to adduce evidence. This is how it is provided by Section 102 of Act, 1872. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of 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. It is in these circumstances, the Apex Court in Anil Rishi Vs. Gurbaksh Singh (supra) observed that party who was in dominant position must prove the fact. On this aspect I find further support from the decision in Krishna Mohan Kul Vs. Pratima Maity AIR 2003 SC 4351, wherein the Court held:

"The 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."

38. In recording the above opinion, the Court relied on Section 111 of Act, 1872 and held that one has to distinguish 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 various ways and, in particular, three, namely, (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 entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the relief.

39. In the present case, once Issue No. 1 was decided in favour of plaintiffs, holding that there was an agreement for sale, subsequent sale-deed executed between defendant 1 and defendants 2 and 3 could have been saved only if defendants 2 and 3 would have shown that they are bona fide purchasers, having no knowledge of agreement for sale. In the present case, their burden got more onerous and cumbersome for the reason that the alleged bona fide, which could have been presumed in their favour, was sought to be challenged by defendant 1 also, by pleading that sale-deed is result of coercion, undue influence, fraud, criminal force and intimidation and these facts were not only pleaded by defendant 1 in her written statement but also fortified in her oral deposition. She was also put in cross examination by defendants 2 and 3 but they could not elicit anything therefrom. In fact, the relevant situations, which could have helped them, were not put forth.

40. Learned counsel for appellants has sought to argue that all the principles applicable to a Pardanashin lady has been followed by the Courts below against the defendants 2 and 3 but this fact as such is not correct and not borne out from the impugned judgments.

41. Even otherwise, this Court in Second Appeal No. 772 of 1979 (Tika Ram & Another Vs. Daulat Ram & Others) decided on 4.4.2013 has held that in a case of illiterate widow, old lady, from rural area, similar principles as applicable to Pardanashin lady, should be extended, looking to the ground level scenario of Indian continent.

42. In view of above discussion, question no. 2 is also answered against the appellants.

43. The question no. 3 stands answered once the questions no. 1 and 2 are answered against appellants. The discussion made above leave no manner of doubt that whatever was required to be done by this Court in its judgment dated 5.12.2007 passed in Second Appeal No. 1818 of 1977, there is a substantial compliance on the part of LAC though in a mixed manner, but having gone through the entire judgment, I find that directions issued by this Court have been substantially complied with. The question no. 3, therefore, is also returned against the appellants.

44. In the result, there is no merit in this second appeal. It is, accordingly, dismissed with cost throughout.

Dt. 25.4.2013

PS