ANIL RISHIversusGURBAKSH SINGH

                                     ANILRISHI                                         A
                                           v.
                                 GURBAKSH SINGH

                                    MAY 2, 2006

                [S.B. SINHA AND P.K. BALASUBRAMANY AN, JJ.]                            B


         Evidence Act, I872:

        ss. JOI and I02-Burden of proof-Suit for declaring sale deed as
   void-Forgery and fabrication of document alleged-Held, with a view to               C
   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-                D
   Explained.

         Words and Phrases:

         Expressions 'burden of proof' and 'onus of proof'--Connotation of in
   the context of Evidence Act.                                                        E

         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             F
   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?"
                                                                                       G
           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
                                         659                                           H
    660                    SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A 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.

B         Allowing the appeal, the Court

          HELD: 1.1. In view of Section IOI 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
C   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 Ku/ @ Nani Charan Ku/ & Anr. v. Pratima Maity &
    Ors., AIR (2003) SC 4351, distinguished.
D
          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 11lways 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
E
    the Trial Judge to produce the same. [655-D-El

          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
F   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 IOI is inflexible. In terms of Section 102 the initial
G   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-AI
          R. VE. Venkatachala Gounder v. Arulmigu Viswesaraswami & VP. Temple
H and Anr., JT (2004) 6 SC 442, relied on.
               ANIL RISH! v. GURBAKSH SINGH [S.B. SINHA, J.]               661

      3. The order reframing the issue is set aside thus reviving the issue       A
originally framed. (666-D)

      CIVIL APPELLATE JURISDICTION: Civil Appeal No, 2413 of2006.

     From the Order dated 14.12.2005 of the High Court of Punjab and
Haryana at Chandigarh in C.R. No. 1077/2005.                                      B
      Suresh Kumari and A.P. Mohanty for the Appellant.

    Shalil Sagar, Pratap Venugopal and E. Venu Kumar for Mis. K.J. John
& Co., for the Respondent.

      The Judgment of the Court was delivereq by
                                                                                  c
      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. I 077 of        D
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      E
 in Sector I SA, 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        F
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        G
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
                                                                                  H
    662                     SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

            document?"
A
          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
B           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 the existence of such a fact."

c said order
        A revision application filed on behalf of the appellant herein against the
             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
D           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
E           possession of the sale deed in question. After the defendant proves
            the validity and genuineness of the sale deed, the tum 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
F           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 .... "

        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
G 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
H 101 of the Evidence Act, which reads as under:-
              ANIL RISH! v. GURBAKSH SINGH [S.B. SINHA, J.]                 663

        "Sec. JOI. Burden of proof-Whoever desires any Court to give               A
        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·
                                                                                   B
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    C
statement denied and disp.uted 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       D
parties do not adduce any evidence, in view of Section I02 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.                          E
     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 Ku! @ Nani Charan Ku! & Anr. v. Pratima                F
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       G
than I00 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
                                                                                   H
    664                   SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A Court opined:-
           "12 ..... The onus to prove the validity of the deed of settlement was
           on the defendant No. I. 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
B          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
c          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
D          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 .... "
E
         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 conjidence.-Where there is a question as to the
F          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."

G         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
H transaction is in question but not when the real nature thereof is in question.
               ANIL RISHI v. GURBAKSH SINGH [S.B. SINHA, J.]                   665
       The words 'active confidence' indicate that the relationship between            A
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   B
or the position of active confidence held by the defendant-appellant, 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             C
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 /is can never be
determinative of the question as to upon whom the burden of proof would D
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 I01
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 E
be directed to produce the same. The plaintiff could file an application calling
for the said document from the defendant and the defendant cou Id 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 F
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 G
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 I 0 I is
inflexible. In terms of Section I 02 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
                                                                                       H
    666                    SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A would disentitle the plaintiff to the same.
         In R. V.E. Venkatachala Gounder v. Aru/migu Viswesaraswami & V.P.
    Temple and Anr., [JT 2004 (6) SC 442], the law is stated in the following tenns:

           "29. In a suit for recovery of possession based on title it is for the
B          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
c          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
D          thereof the burden of proof lying on the plaintiff shall be held to have
           been discharged so as to amount to proof of the plaintiffs title."

            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
E   if it is felt necessary.

          The appeal is allowed as above.

    RP.                                                            Appeal allowed.