# Prahlad & Anr. Defendants/ v. Sarvajeet Plaintiff/

- **Citation:** (2022) 11 ILRA 241
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-11
- **Case number:** Second Appeal No. 168 of 1995
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prahlad-anr-defendants-v-sarvajeet-plaintiff-47808
- **Pages:** 6

## Headnote

Civil Law - Specific Relief Act, 1963 -
Section 31 - Suit for cancellation of Sale
deed - Evidence Act, S. 101 - Burden of
proof - The expression " burden of proof
" means one of two things (1) that a
party has to prove an allegation before it
is entitled to a judgment in its favour, or
(2) that the one or the other of the two
contending parties has to introduce
evidence on a contested issue - The
questionof onus is material only where
the party on which it is placed would
eventually lose if it failed to discharge
the
same
-
Where
issuesare,
however,joined, evidence is led and such
evidence can be weighed in order to
determine the issues, the question of
burden
becomes
academic
-
Where
evidence has been led by the contesting
parties on the question in issue, abstract
considerations of onus are out of place;
truth or otherwise of the case must
always be adjudged on the evidence led
by the parties (Para 11, 12)

Plaintiff filed a suit seeking to cancel a sale
deed, alleging that due to his dependency on
the defendants' father, who had influence
over him, and his illness, the sale deed was
fraudulently
executed
in
favor
of
the
defendant - Trial Court put the burden on the
plaintiff of proving that the plaintiff was ill on
the relevant date and had put the burden of
proving that consideration had passed from
the defendants to the plaintiff on the
defendants - Plaintiff failed to produce
treating doctors - trial court found he was not
ill -First appellate court reversed this decision,
putting the burden on the defendants to
prove no fraud or misrepresentation due to
their dominant position - Held - trial court
rightly placed the burden on the plaintiff &
that the first appellate court wrongly shifted
the burden - First appellate court's decision
was set aside and the suit was dismissed.

Allowed. (E-5)

List of Cases cited:

## Text

11 All. Prahlad & Anr. Vs. Sarvajeet
241
and others Vs. Hari Singh and another)
while disbursing the amount.

18.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.

19. This Court is thankful to both the
counsels for getting this old matter decided.
----------
(2022) 11 ILRA 241
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 168 of 1995

Prahlad & Anr. ...Defendants/Appellants
Versus
Sarvajeet ... Plaintiff/Respondent

Counsel for the Appellants:
Sri Ramesh Chandra, Sri C.K. Rai, Sri
Fauzdar Rai, Sri Ishir Sripat, Sri J.A. Azmi,
Sri O.N. Misra, Sri Rahul Sripat, Sri S.C.
Verma, Sri S.S.P. Gupta, Sri Shachindra
Kumar Mishra, Sri Saurabh Patel

Counsel for the Respondent:
Sri R.M. Singh, Sri A.K. Singh, Sri Dinesh
Kumar Pandey, Sri Govind Krishna, Sri M.S.
Chauhan, Sri R.B. Tripathi

Civil Law - Specific Relief Act, 1963 -
Section 31 - Suit for cancellation of Sale
deed - Evidence Act, S. 101 - Burden of
proof - The expression " burden of proof
" means one of two things (1) that a
party has to prove an allegation before it
is entitled to a judgment in its favour, or
(2) that the one or the other of the two
contending parties has to introduce
evidence on a contested issue - The
questionof onus is material only where
the party on which it is placed would
eventually lose if it failed to discharge
the
same
-
Where
issuesare,
however,joined, evidence is led and such
evidence can be weighed in order to
determine the issues, the question of
burden
becomes
academic
-
Where
evidence has been led by the contesting
parties on the question in issue, abstract
considerations of onus are out of place;
truth or otherwise of the case must
always be adjudged on the evidence led
by the parties (Para 11, 12)

Plaintiff filed a suit seeking to cancel a sale
deed, alleging that due to his dependency on
the defendants' father, who had influence
over him, and his illness, the sale deed was
fraudulently
executed
in
favor
of
the
defendant - Trial Court put the burden on the
plaintiff of proving that the plaintiff was ill on
the relevant date and had put the burden of
proving that consideration had passed from
the defendants to the plaintiff on the
defendants - Plaintiff failed to produce
treating doctors - trial court found he was not
ill -First appellate court reversed this decision,
putting the burden on the defendants to
prove no fraud or misrepresentation due to
their dominant position - Held - trial court
rightly placed the burden on the plaintiff &
that the first appellate court wrongly shifted
the burden - First appellate court's decision
was set aside and the suit was dismissed.

Allowed. (E-5)

List of Cases cited:

1. Daya Shankar Vs Smt. Bachi & ors. AIR 1982
Allahabad 376

2. Narayan Bhagwantrao Gosavi Balajiwale
Vs Gopal Vinayak Gosavi & ors. AIR 1960 SC
100
242 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Kalwa Devadattam & ors. Vs U.O.I. & ors. (In
C.A. No. 641 of 1961) 2. Kamaji 4. 4. Saremal,
Firm & ors. (In C.A. No. 642 of 1961)

(Delivered by Hon'ble Siddhartha Varma, J.)

1. This second appeal has been filed
by the defendant against the judgement and
decree of the First Appellate Court dated
17.12.1994 by which the First Appeal of
the plaintiff was allowed and the Suit of the
plaintiff which was earlier dismissed by the
Trial Court on 5.3.1992 was decreed. The
plaintiff - Sarvajeet - ( the respondent here)
had filed a suit being Original Suit No. 445
of 1989 for the relief that the sale deed
dated 27.9.1988 be cancelled. The Suit was
based on the fact that the plaintiff was an
elderly person and was dependent on the
father of the defendants in whom the
plaintiff had confidence and who had,
therefore, the capacity to influence the
decision taking capacity of the plaintiff.

2. The plaintiff further had taken a
case that on the date when the sale deed
was executed i.e. on 27.9.1988, the plaintiff
who was suffering from cataract had acute
fever and had gone to the office of the
Registrar at Tehsil Sagari on the pretext
that Kishori the father of the defendants
would get him treated by a good doctor. It
has been alleged in the plaint that instead of
getting the plaintiff treated, the father of the
defendants fraudulently got executed the
sale deed on 27.9.1988 in favour of the
defendants. The defendants in their written
statements, however, took a case that the
plaintiff had executed the sale deed in
question with his free mind and will and on
the date when he executed the sale deed, he
was in sound mental condition. Further,
they stated that the sale deed was executed
for a proper consideration. At the Registrar
Office, the plaintiff had been informed
about the contents of the document and the
document which he was going to put his
signature on. He had understood the
contents of the document and after taking
full consideration he had executed the sale
deed. The Trial Court had put the burden
on the plaintiff of proving that the plaintiff
was ill on the relevant date and had put the
burden of proving that consideration had
passed from the defendants to the plaintiff
on the defendants. The Trial Court found
the oral evidence of P.W. - 1 Ram Nagina
as a heresy evidence as his evidence
regarding his knowledge of the illness of
the plaintiff, Sarvajeet, was through the
father of the defendants himself. Further
the Trial Court analysed the testimony of
the plaintiff to see to his physical and
mental status and went through the
evidence which was brought before the
Court. The plaintiff had stated in his
examination in chief that, to begin with, he
had got himself treated by one Dr.
Tirathram and when he did not get any
benefit out of his treatment he had changed
the Doctor and had started taking treatment
of one Doctor Yadava. When he did not get
any relief from their treatment and when
the defendant's father, in whom the plaintiff
had full confidence and faith, suggested
that he showed himself to the Doctor at
Sagari, the plaintiff had readily agreed. The
plaintiff had not brought in the witness box
the Doctors who had treated him. However,
he produced the prescriptions which were
again not proved by the Doctor who had
prescribed them. However, since the
plaintiff had produced those prescriptions
they were considered in evidence and it
was found that when on the first occasion
the plaintiff was given the medicines on
16.9.1988 then they were prescribed for a
period
of
five
days.
Thereafter
on
20.9.1988, the medicines were slightly
changed and they were prescribed for three
11 All. Prahlad & Anr. Vs. Sarvajeet
243
days more. On 23.9.1988, the temperature
and pulse recorded by the Doctor were
normal. Therefore, it has been concluded
by the Trial Court that three days after
23.9.1988, the plaintiff's physical condition
was absolutely normal. There is no
evidence on record, it has been stated by
the Trial Court, to prove that the condition
of the plaintiff deteriorated thereafter. The
Trial Court also took into consideration
certain facts about the family of the
plaintiff which were brought on record by
the defendants and was not denied by the
plaintiff.

3. It was brought on record that the
plaintiff had six brothers and they were all
living in the neighbourhood. However,
none of them appeared in the witness box
to corroborate the case of the plaintiff that
he was seriously ill on the date when the
sale deed was executed.

4. It was also brought on record that
Katuwaru, who was the son of another
brother of the plaintiff, namely, Ramhit,
was much loved by the plaintiff but he also
never came to the witness box. The
plaintiff' s love for katuwaru was to the
extent that the plaintiff had got his name
engraved on the top of the disputed house.
The defendants had brought on record the
fact that Katuwaru, the nephew of the
plaintiff who was to definitely lose on
account of the execution of the sale deed
dated 27.9.1998 never opposed the sale
deed or appeared in the witness box for the
plaintiff.

5. So far as the case of the plaintiff
with regard to the averment in the plaint
that the plaintiff had sufficient money and
he did not require the money from the sale,
the Trial Court had dealt with all the
evidence which was there with regard to
the money being there in the account of the
plaintiff. The Trial Court had found that the
plaintiff had deposited in a fixed deposit
Rs. 25,000/- in a Cooperative Bank at
Kaptanganj on 1.10.1988. When asked as
to from where this amount had come, the
plaintiff had stated in his examination in
chief that he had withdrawn this amount of
Rs. 25,000/- from various other bank
accounts. However, when asked to prove as
to from which bank account the plaintiff
had withdrawn Rs. 25,000/-, the plaintiff
filed details of three accounts:-

I. The pass-book of Cooperative
Bank Azamgarh, which account was
opened on 21.9.1989. This therefore was
opened after the sale had taken place.

II. The pass-book of Union Bank
of India opened in 1974 and that acount
revealed that the plaintiff in the year 1979
had a last closing balance of Rs. 480.05/-.

III. The another pass-book of
Union Bank of India of the Month of
September, 1988 showed the closing
balance amount of Rs. 825.70. Thus the
Trial Court concluded that Rs. 25,000/-
which the plaintiff had deposited in the
fixed deposit on 1.10.1988 came from
nowhere
else
but
from
the
sale
consideration which he had got on
27.9.1988.

6. So far as the source of money
which the defendants had got for the
payment to the plaintiff, the defendants had
explained that when their mother had died
their father had got as compensation Rs.
14,000/- and this had swelled to Rs.
20,000/- and from this amount they had
paid to the plaintiff the consideration
money for the sale deed. The Trial Court
thereafter dismissed the Suit. The First
Appellate Court as stated earlier reversed
the findings of the Trial Court and on
244 INDIAN LAW REPORTS ALLAHABAD SERIES
17.12.1994 and allowed the First Appeal of
the plaintiff chiefly on the ground that the
defendants ought to have proven that there
was no fraud or misrepresentation on their
part as they were in a dominating position
and the plaintiff was having faith over the
defendants and, therefore, it was for them
to prove the correctness of the transaction.

7. The Second Appeal was admitted
on the following substantial question of law
on 4.8.2009 which is being reproduced here
as under:-

"Whether the benefits available to
a pardanashin lady can be extended to a
person who is illiterate and is engaged in
business activities"

8. Learned counsel for the appellant
has submitted that when the plaintiff was
such a person who was always actively
employed in a business, though at the time
of the sale deed he was not into active
business; was having three bank accounts
and was in a position to visit doctors
independently could not be compared to a
Pardanashin Lady.

9. Learned counsel for the appellant
further submitted that even though the
plaintiff was living with the defendants
after he was not doing his business it did
not mean that he depended on the
defendant's father in such a manner that the
latter could influence his thinking. The
plaintiff was an independent person and
had an identity of his own and though he
was having his food etc. with the father of
the defendants he always wanted an
independent source of income through bank
interest and, therefore, he had invested the
consideration amount in a fixed deposit.
There
was
no
fiduciary
relationship
between the plaintiff and the father of the
defendants. They relied upon AIR 1982
Allahabad 376 ( Daya Shankar vs. Smt.
Bachi and others)
to
bolster
their
arguments.

10. Further, the counsel for the
appellant submitted that when the evidence
had been led from the side of the plaintiff
and the defendant and there was sufficient
evidence on record for the Court to
conclude as to whether the plaintiff was ill ;
whether there was any undue influence
from the side of the defendants and whether
consideration was properly paid then the
question as to on whom there was the
burden to prove that the plaintiff was ill or
not on the date of the execution of the sale
deed lost all importance.

11. Learned counsel for the appellants
relied upon AIR 1960 SC 100 ( Narayan
Bhagwantrao
Gosavi
Balajiwale
vs.
Gopal Vinayak Gosavi and others) and
specifically relied upon paragraph no. 10 of
the judgement. The relevant portion of
which is being reproduced here as under:

"The
expression
"burden
of
proof" really means two different things. It
means sometimes that a party is required to
prove an allegation before judgment can be
given in its favour; it also means that on a
contested issue one of the two contending
parties
has
to
introduce
evidence.
Whichever way one looks, the question is
really academic in the present case, because
both parties have introduced their evidence
on the question of the nature of the deity
and the properties and have sought to
establish their own part of the case. The
two Courts below have not decided the case
on the abstract question of burden of proof;
nor could the suit be decided in such a way.
The burden of proof is of importance only
where by reason of not discharging the
11 All. Prahlad & Anr. Vs. Sarvajeet
245
burden which was put upon it, a party must
eventually fail. Where, however, parties
have joined issue and have led evidence
and the conflicting evidence can be
weighed to determine which way the
issue can be decided, the abstract
question of burden of proof becomes
academic."

12. The relevant portion of the
paragraph 11 of AIR 1964 SC 880 (Kalwa
Devadattam and others(in both the
appeals) vs. 1. Union of India and others
(In C.A. No. 641 of 1961) 2. Kamaji
Saremal, Firm and others(In C.A. No.
642 of 1961) which was relied upon by the
appellant is also being reproduced here as
under:

"The question of onus probandi is
certainly important in the early stages of a
case. It may also assume importance where
no evidence at all is led on the question in
dispute
by
either
side;
in
such
a
contingency the party on whom the onus
lies to prove a certain fact must fail. Where
however evidence has been led by the
contesting parties on the question in issue,
abstract considerations of onus are out of
place; truth or otherwise of the case must
always be adjudged on the evidence led by
the parties."

13. Learned counsel for the appellants
further argued that whether the transaction
could be said to be vitiated on the ground
of undue influence when the plaintiff
himself had brought on record all evidence
which definitely went against him then the
question of law as had been framed by the
Court should be answered in favour of the
appellants.

14. Learned counsel for the plaintiffrespondent Sri M.S. Chauhan, however,
argued that the grounds as had been raised
in the appeal did not raise any substantial
question of law and, therefore, the Second
Appeal should be dismissed. He further
submitted
that
the
Trial
Court
had
erroneously shifted the burden of proving
that there was illness of the plaintiff on the
plaintiff. He also submitted that burden of
proving that undue influence was exercised
on the plaintiff was wrongly put on the
defendants.
Learned
counsel
for
the
plaintiff-respondent further submitted that
the first appellate court had rightly
concluded that when the defendants did not
prove that there was no misrepresentation
or fraud then the case of the plaintiff had to
be believed and the suit ought to be
decreed.

15. Having heard the learned counsel
for the defendants/appellants Sri Rahul
Sripat learned Senior Counsel assisted by
Sri Saurabh Patel and Sri Ishir Sripat and
Sri M.S. Chauhan, the learned counsel for
the respondent, the Court is of the view that
the Second Appeal deserves to be allowed.
The Trial Court when had looked into the
evidence on record which had been brought
by the plaintiff with regard to the fact that
the plaintiff was ill and undue influence
was exercised by the defendant then it
evaluated all the evidence in its correct
perspective and had found that the plaintiff
was not in any manner ill on the date of the
execution of the sale deed. The Court
further finds that when the plaintiff was not
unwell; he could think properly and had
earlier carried on his own business then
even if the plaintiff was living with the
defendants it could not be said that any
undue influence could have been exercised
on the plaintiff. What is more, the Trial
Court had rightly put the burden of proving
whether the plaintiff was ill or not on the
plaintiff and the plaintiff definitely could
246 INDIAN LAW REPORTS ALLAHABAD SERIES
not prove that the plaintiff was in any
manner ill on the date of the execution of
the sale deed. The Doctors who had given
the prescriptions were never produced. The
prescriptions themselves told a story which
was different from the case which the
plaintiff was taking and also the Trial Court
rightly concluded from the facts which the
defendants had brought on record and had
not been denied by the plaintiff that none of
the other brothers of the plaintiff had come
in the witness box to allege that the
defendants' father had exercised undue
influence. Even the nephew who was much
loved by the plaintiff and whose name
found place on the top of the house never
came in the witness box. What is more the
Court finds that, in fact, the plaintiff has
not been able to prove as to from where the
amount which he had deposited in the fixed
deposit was earned by him. This also shows
that
the
plaintiffs
had
taken
the
consideration and had also converted the
consideration money into a fixed deposit. It
appears that the plaintiff had filed a suit as
an afterthought.

16. Under such circumstances, it is
abundantly proved that the First Appellate
Court wrongly shifted the burden on the
defendants to prove that the plaintiff was
not under any undue influence of the
defendant's father. All the evidence which
was there before the Trial Court was
correctly analysed in a balanced manner by
it. The First Appellate Court wrongly
shifted the burden on the defendants. The
Second Appeal, therefore, is allowed. The
judgement and decree of the First Appellate
Court dated 17.12.1994 passed by the VIth
Additional District Judge, Azamgarh, is set
aside. The Suit stands dismissed.
----------
(2022) 11 ILRA 246
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 1180 of 1983

Sheo Badan ...Defendant/Appellant
Versus
Prithvi Pati & Ors.
 ...Plaintiffs/Respondents

Counsel for the Appellant:
Sri V.B. Khare, Sri Ashok Kumar Shukla, Sri
L.P. Tiwari

Counsel for the Respondents:
Sri H.R. Mishra, Sri A.K. Mishra, Sri A.P.N.
Giri, Sri Arvind Prabodh Dubey, Sri P.K.
Mishra, Sri R.S. Mishra, Sri Ashok Kumar
Giri

A. Civil Law - Code of Civil Procedure,1908
- Order VII Rule 3 C.P.C. - Identity of
Property - Order XXVI Rule 9 C.P.C.,
Commissions to make local investigations
- Transfer of Property Act, 1872 - Section
118 - Exchange - Plaintiff established that
he
had
given
his
plot
no.2573/1
measuring 11 decimals in exchange of plot
no.2143
which
was
subsequently
converted to plot no.2826/10 and then
later on to 2826/11, at the time of
consolidation and, therefore, he had a
right over the same - As per section 118 of
the Transfer of Property Act, 1872 there
was a proper exchange of plot no.2573/1
(of the plaintiff) with plot no.2143 (of
Ganga and Harivansh) and since at the
time when the exchange had taken place
i.e. in the year 1950, the plots were valued
not more than Rs.100/-, there was no
requirement of a written document -
Lower appellate Court committed no error
in law in not getting the plot in dispute
demarcated by preparing a survey map
and not getting the identity of the plots
established - Court found that in fact
there was no dispute with regard to plot