Friday, 20 September 2019

Whether court can put burden of proof on other side if plaintiff has failed to plead that she was pardanashin lady?

The plaintifffirst
respondent filed a Suit No. 155 of 1996
before the Civil Judge (J.D.), Roorkee. A copy of the plaint has
been placed on record (Annexure P/1). On perusal of the plaint,
it reveals that it has nowhere been pleaded that the plaintifffirst
respondent is a pardanasheen illiterate lady. In the ordinary
course the burden of proof rest, on who attack. On the contrary,
it was pleaded in the plaint that defendant nos.1 and 3 are the
sons of her uncle Mangta and defendant no. 2 is the wife of
defendant no. 1 and they hatched a conspiracy to grab the land
of the plaintifffirst
respondent and with connivance, the power of
attorney was prepared & registered on 25th April, 1995 in the
registry office, in the name of the plaintiff and pursuant thereto,
suit land was sold by a registered sale deed. On the basis of
pleadings on record, the abovementioned
eight issues were
framed on which both the parties have adduced oral and
documentary evidence and the trial Judge, after considering the
evidence, dismissed the suit vide judgment and decree dated 19th
January, 2001 and that came to be affirmed on dismissal of the
appeal filed at the instance of the plaintifffirst
respondent dated
27th August, 2001. It reveals from the record that without there
being any factual foundation, the High Court, while admitting the

appeal, framed two substantial questions of law in reference to
which there was no supporting pleadings on record.
14. We still, for our satisfaction have gone through the plaint
placed on record at Annexure P/1 and we are unable to find the
pleadings in support that she was a pardanasheen illiterate lady
and was entitled for protection of law and the burden was on the
defendantappellant
to prove that the alleged power of attorney
was the result of fraud.

NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 7137 OF 2010

ALI HUSSAIN  Vs  RABIYA 

Dated:SEPTEMBER 17, 2019
Rastogi, J.

1. This appeal is directed against the judgment and decree
dated 18th August, 2008 passed by the High Court of
Uttarakhand in Second Appeal No. 1341 of 2001.
2. The facts in brief are that the first respondentplaintiff
filed
a suit against the defendantappellant
for cancellation of sale
deed dated 10th May, 1995 registered in SubRegistrar
Office,
Jagadari, Roorkee on 22nd May, 1995. According to the plaint,
the plaintifffirst
respondent Smt. Rabiya inherited the property

shown in the schedule of property indicated at the foot of the
plaint, from her father late Sri Ahamad and is the owner and in
possession of the suit property in question. It was further
averred that the impleaded defendants in the suit (defendant
nos.1 and 3, Ali Hussain and Abdul Hassan) are the sons of her
great grandfather and impleaded defendant no. 2 Smt. Raquiba,
is the wife of Ali Hussain (impleaded defendant no. 1).
3. It was averred in the plaint that the impleaded defendant
no.1 (appellant) in order to grab the suit property of the
plaintiffrespondent,
got prepared a forged registered power of
attorney, in the name of the plaintifffirst
respondent on 25th
April, 1995 and on the basis of the forged power of attorney, sold
the suit property by a registered sale deed for a consideration of
Rs. 1,50,000/on
10th May, 1995 in favour of defendant nos. 2
and 3 (Smt. Raquiba and Abdul Hassan). According to the
plaintifffirst
respondent, the sale price of the suit property could
not be less than Rs. 3,00,000/.
It is also alleged in the plaint
that there is no recital as to who had actually received the sale
consideration and she is in actual possession of the suit property
and the forged sale deed was never acted upon. It was prayed for

the decree for cancellation of power of attorney and the sale deed
obtained by playing fraud.
4. Before the trial Court, on the basis of pleadings of the
parties, following issues were framed:1.
Whether the sale deed dated 10.05.1995 executed by
defendant no. 1 in favour of defendant nos. 2 and 3
is liable to be cancelled on the grounds set in the
plaint?
2.Whether the alleged power of attorney dated
25.04.1995 executed by plaintiff in favour of
defendant no. 1 is forged document and the plaintiff
did not execute the same? If so, its effect?
3.Whether the plaintiff received the sale consideration
in respect of sale deed from defendant no. 1 in
favour of defendant nos. 2 & 3.
4.Whether the plaintiff is owner and in possession of
the property in dispute?
5.Whether the plaintiff is entitled for any relief?
6.Whether after selling the property in dispute to
Mohammad Mateen by the plaintiff, the suit
rendered infructuous?
7.Whether the suit is barred by principle of estoppel
and acquiescence?
8.Whether the suit rendered infructuous in view of the
contention raised in para no. 13A
of the written
statement?
5. Both the parties adduced their oral as well as documentary
evidence in support of their defence. The trial Judge, after
hearing the parties and considering the evidence on record,
dismissed the suit filed by the plaintifffirst
respondent vide

judgment and decree dated 19th January, 2001 which was further
assailed at the instance of the plaintifffirst
respondent in first
appeal which was dismissed vide judgment and decree dated 27th
August, 2001, further assailed in second appeal before the High
Court of Uttarakhand.
6. It may be relevant to note that at the time of admission of
second appeal, the High Court admitted the appeal on the
following substantial questions of law:1.
As to whether both the courts below were justified
placing burden of proof on the plaintiff/appellant to
prove negative fact that power of attorney is not
executed by her?
2.Whether burden/onus of proof lies on the transferee
when transferor totally denies execution of the deed
by himself? If so, its effect?
7. The High Court after hearing the parties proceeded on the
premise that the plaintifffirst
respondent was the pardanasheen
illiterate lady and taking note of the judgment of this Court in
Mst. Kharbuja Kuer Vs. Jangbahadur Rai and Others AIR
1963 SC 1203, relying on the judgment of the Privy Council
(FaridUnNisa(
Plaintiff) Vs. Mukhtar Ahmad and
Another(Defendants) AIR 1925 PC 204) held that burden of proof

in such a case rest, not with those who attack, but with those
who found upon the deed, and the proof must go so far as to
show affirmatively and conclusively that the deed was not only
executed by, but was explained to, and was really understood by
the grantor.
8. The High Court held that the burden to prove that the
alleged power of attorney is not a result of fraud and
misrepresentation lie on the shoulder of the appellantdefendant
because they are the beneficiaries and the trial Court and the
first Appellate Court has committed a manifest error in shifting
the burden on the shoulders of the plaintifffirst
respondent and
accordingly set aside the judgment and decree of the Courts
below and remitted the matter back to the trial Judge to decide
the suit afresh in view of the evidence available on record taking
note of the observations made by the High Court in the impugned
judgment dated 18th August, 2008 which is a subject matter of
challenge at the instance of the appellantdefendant
no. 1 before
us.

9. This Court, while issuing notice on 14th November, 2008
stayed the operation of the impugned judgment dated 18th
August, 2008.
10. Learned counsel for the appellants submits that the very
foundation on which the High Court has proceeded that the
plaintifffirst
respondent was a pardanasheen illiterate lady and
shifting the burden of proof on the shoulder of the appellantfirst
defendant to establish that the document was explained to the
plaintifffirst
respondent and she understood it and thereafter
transaction was entered into, is against the pleadings on record.
From the perusal of the copy of the plaint annexure P/1 on
record filed by the plaintifffirst
respondent, it is nowhere pleaded
that she was a pardanasheen illiterate lady and in absence
whereof, the very proposition which has been examined by the
High Court under the impugned judgment is unsustainable and
so far as the issues which are framed by the trial Judge on the
basis of the pleadings on record, all have been negated against
the plaintifffirst
respondent and in the given circumstances, the
finding recorded by the High Court in remitting the matter to the

trial Judge to revisit the same on the basis of principles laid
down deserves to be interfered by this Court.
11. Per contra, learned counsel for the respondents, while
supporting the finding recorded by the High Court under the
impugned judgment, submits that it is indisputed fact that the
plaintifffirst
respondent is a pardanasheen illiterate lady and
still the case was proceeded with the burden of proof on her
shoulders to establish that the power of attorney executed by the
plaintiff in favour of defendantappellant
was a forged document
was a patent error of law. In the given circumstances, the
burden of proof was upon the defendant no.1appellant
to
establish that the registered power of attorney executed on 25th
April, 1995 was a genuine document and only thereupon the
onus could have been shifted to the plaintifffirst
respondent and
this is an apparent manifest error which was committed by the
trial Judge but noticed by the High Court in the impugned
judgment and it needs no further interference by this Court.
12. We have heard learned counsel for the parties and with
their assistance perused the material available on record.

13. The plaintifffirst
respondent filed a Suit No. 155 of 1996
before the Civil Judge (J.D.), Roorkee. A copy of the plaint has
been placed on record (Annexure P/1). On perusal of the plaint,
it reveals that it has nowhere been pleaded that the plaintifffirst
respondent is a pardanasheen illiterate lady. In the ordinary
course the burden of proof rest, on who attack. On the contrary,
it was pleaded in the plaint that defendant nos.1 and 3 are the
sons of her uncle Mangta and defendant no. 2 is the wife of
defendant no. 1 and they hatched a conspiracy to grab the land
of the plaintifffirst
respondent and with connivance, the power of
attorney was prepared & registered on 25th April, 1995 in the
registry office, in the name of the plaintiff and pursuant thereto,
suit land was sold by a registered sale deed. On the basis of
pleadings on record, the abovementioned
eight issues were
framed on which both the parties have adduced oral and
documentary evidence and the trial Judge, after considering the
evidence, dismissed the suit vide judgment and decree dated 19th
January, 2001 and that came to be affirmed on dismissal of the
appeal filed at the instance of the plaintifffirst
respondent dated
27th August, 2001. It reveals from the record that without there
being any factual foundation, the High Court, while admitting the

appeal, framed two substantial questions of law in reference to
which there was no supporting pleadings on record.
14. We still, for our satisfaction have gone through the plaint
placed on record at Annexure P/1 and we are unable to find the
pleadings in support that she was a pardanasheen illiterate lady
and was entitled for protection of law and the burden was on the
defendantappellant
to prove that the alleged power of attorney
was the result of fraud.
15. After we have heard the parties, we are of the view that the
High Court has committed a manifest apparent error in reversing
the concurrent finding of the two Courts below and on this score
the impugned judgment is not sustainable.
16. Consequently, the appeal succeeds and accordingly allowed.
The judgment of the High Court in second appeal dated 18th
August, 2008 is hereby set aside. No costs.

17. Pending application(s), if any, stand disposed of.
..………………………………………J.
(N.V. RAMANA)
..………………………………………J.
(MOHAN M. SHANTANAGOUDAR)
.……………………………………….J.
(AJAY RASTOGI)
NEW DELHI
SEPTEMBER 17, 2019

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