ONUS OF PROOF IN DIFFERENT TYPES OF CASES
Section
101 of the Indian Evidence Act, 1872 defines `burden of proof' which clearly
lays down that whosoever desires any court to give judgment as to any legal
right or law 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. Thus, the
Evidence Act has clearly laid down that the burden of proving fact always lies
upon the person who asserts. Until such burden is discharged, the other party
is not required to be called upon to prove his case. The court has to examine
as to whether the person upon whom burden lies has been able to discharge his
burden. Until he arrives at such conclusion, he cannot proceed on the basis of
weakness of the other party.Rangammal vs
Kuppuswami & Anr. (AIR 2011 SC 2344).
IN
CASE OF MINOR:
when a person
after attaining majority, questions any sale of his property by his guardian
during his minority, the burden lies on the person who upholds/asserts the purchase not only to show that the
guardian had the power to sell but further that the whole transaction was bona fide. This was held in the
case of Roop Narain vs. Gangadhar, 9 WR 297, as also in Anna Malay vs. Na U Ma, 17C
990. Rangammal vs Kuppuswami & Anr. (AIR 2011 SC
2344).
IN CASE OF PARTITION:
that in a suit for partition, it is expected
of the plaintiff to include
only those properties for partition to which
the family has clear title and unambiguously belong to the members of the joint family which is
sought to be partitioned and if someone
else's property meaning
thereby disputed property
is included in the schedule
of the suit for partition, and the same is contested
by a third party who is
allowed to be impleaded by order of the trial court, obviously it is the plaintiff who will have to first of
all discharge the burden of proof for establishing that the disputed property
belongs to the joint family which should be partitioned excluding someone who
claims that some portion of the joint family property did not belong to the
plaintiff's joint family in regard to which decree for partition is sought. Rangammal vs Kuppuswami & Anr. (AIR 2011 SC 2344).
IN
CASE OF EXECUTION OF AN UNREGISTERED DOCUMENT:
In Thiruvengada
Pillai v. Navaneethammal & Anr, AIR 2008 SC 1541, hon'ble Supreme
Court held that when the execution of an
unregistered document put forth by the plaintiff was denied by the
defendants, the ruling that it was for the defendants to establish that the
document was forged or concocted is not a sound proposition. The first
appellate Court proceeded on the basis that it is for the party who asserts
something to prove that thing;
and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate Court lost sight of
the fact that the party who propounds
the document will have to prove it. It was the plaintiff who had come to Court alleging
that the first defendant had executed an agreement of sale in his favour. The
defendant having denied it, the burden was on the plaintiff to prove that the
defendant had executed the agreement and not on the defendant to prove the negative.
IN
CASE OF SUSPICIOUS CIRCUMSTANCES REGARDING THE EXECUTION OF THE WILL:
. In K. Laxmanan
v. Thekkayil Padmini &
Ors., AIR 2009 SC 951, honorable Supreme
Court held "that when there are suspicious circumstances regarding the execution of the Will, the
onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the
Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances
arise due to several reasons such as with regard to genuineness of the signature
of the testator, the conditions of the testator's mind, the
dispositions made in the Will being unnatural, improbable or unfair
or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all
legitimate suspicion should be completely removed before the document is
accepted as the last Will of the testator."
IN
CASE OF FRAUD, MISREPRESENTATION OR UNDUE INFLUENCE:
In Krishna Mohan Kul @ Nani Charan Kul
& Anr. v. Pratima Maity & Ors. AIR 2003
SC 4351, it was held "that when fraud,
mis- representation 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."
UNDUE
INFLUENCE:(Section
16 of Contract Act, 1872)
Section
16 of the Contract Act provides that a contract is said to be induced by “undue
influence” where the relations subsisting between the parties are such that one
of the parties is in a position to dominate the will of the other, and uses
that position to obtain an unfair advantage over the other.
In Ladli Prashad
Jaiswal v. The Karnal
Distillery Co. Ltd., Karnal & Ors, AIR 1963 SC
1279, honorable Supreme Court held:
“The doctrine of ‘undue influence’ under the common
law was evolved
by the Courts in England
for granting protection against transactions procured by the exercise of
insidious forms of influence spiritual and temporal. The doctrine applies to
acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains
an unfair advantage
over another. The Indian
enactment is founded substantially on the rules of English common law. The first sub- section of S.16 lays
down the principle in general terms. By sub-section (2) a presumption arises
that a person shall be deemed to be in a position
to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise
of undue influence. The reason for the rule in the third
sub-section is that a person who has obtained an advantage over another by
dominating his will may also remain in a position to suppress the requisite
evidence in support of the plea of undue influence.”
IN CASE OF
DONOR AND DONEE:-
In Subhash
Chandra Das Mushib v. Ganga Prasad
Das Mushib & Ors., AIR 1967 SC 878, hon'ble Supreme
Court held "that
the Court trying the case of undue influence must consider two things to start
with, namely, (1) are the relations
between the donor and the donee, such that the donee is in a position to
dominate the Will of the donor, and (2) has the donee used that position to
obtain an unfair advantage over the donor? Upon the determination of these two
issues a third point emerges, which is that of the onus probandi. If the
transaction appears to be unconscionable, then
the burden of proving that the contract was not induced by undue
influence lies upon the person who is
in a position to dominate the Will of the other. It was further said that
merely because the parties were nearly
related to each other or merely because the donor was old or of weak character,
no presumption of undue influence can arise. Generally speaking the relations
of solicitor and client, trustee and cestui que trust, spiritual adviser and
devotee, medical attendant and patient, parent and child are those in which
such a presumption arises."
In Afsar Shaikh & Anr v. Soleman Bibi
& Ors, AIR 1976 SC 163, honorable Supreme Court held:
“The law as to undue influence in the case of a gift inter
vivos is the same as in the case of a contract. Sub-section (3) of Section 16 contains a rule of evidence. According
to this rule, if a person
seeking to avoid a transaction on the ground of undue influence proves-
that the party
who had obtained the benefit
was, at the material time, in a position to dominate
the will of the other conferring the benefit,
and
that the transaction is
unconscionable,
the burden shifts
on the party benefiting by the transaction to show that it was not induced
by undue influence. If either
of these two conditions is not established the burden will not shift. As shall
be discussed presently, in the instant case the first condition had not been established;
and consequently, the burden never shifted
on the defendant. The Privy Council in Raghunath Prasad v. Sarju Prasad, (AIR 1924 PC 60) expounded
three stages for consideration of a case of undue influence. It was pointed
out that the first thing to be considered is, whether the plaintiff or the party seeking relief on the ground of undue influence
has proved that the relations between the parties
to each other are such that one is in a position to dominate the will of
the other. Upto this point, 'influence' alone has been made out. Once that position
is substantiated, the second stage has been reached - namely,
the issue whether
the transaction has been induced
by undue influence. That is to say, it is not sufficient for the person
seeking the relief
to show that the relations of the parties
have been such that the one naturally relied
upon the other for advice,
and the other was in a position
to dominate the will of the first in giving it. Upon a determination of
the issue at the second stage, a third point emerges,
which is of the onus probandi. If the transaction appears to be unconscionable,
then the burden of proving
that it was not induced
by undue influence
is to lie upon the person who was in a position to dominate the will
of the other. Error is almost sure to arise if the order of these propositions
be changed. The unconscionableness of the bargain is not the first thing to be
considered. The first thing to be considered is the relation of the parties.
Were they such as to put one in a position to dominate the will of the other."
lACK OF
DETAILS IN THE PLEADING:
13. If there
are facts on the record
to justify the inference of undue influence, the
omission to make an
allegation of undue influence specifically, is not fatal to the plaintiff being entitled to relief on that
ground; all that the Court has to see is that there is no surprise to the
defendant. In Hari Singh v.
Kanhaiya Lal, AIR 1999 SC 3325, it was held that mere lack of details in
the pleadings cannot be a ground to reject a case for the reason that it can be
supplemented through evidence by the parties.
Joseph
Johan Peter Sandy vs Veronica Thomas Rajkumar & Anr. 2013 (1) UAD 746 SC
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