# PARES NATH THAKUR v. SMT. MOHANI DASI AND OTHERS

- **Citation:** [1960] 1 S.C.R. 271
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 655of1957
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. N. W Anchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pares-nath-thakur-v-smt-mohani-dasi-and-others-1754
- **Pages:** 8

## Headnote

271
Execution-Deity's claim based on deed of trust upheld ~y
executing court-Suit by decreeholder-Deed, if fraudulent in
character-Burden of proof-Concurrent findings of fact-Power of
High Court in Second Appeal-Code of Civil Procedure 0. zr.,
rr. 60, 63.
The respondents as plaintiffs brought the suit, out of which
the present appeal arises, under the provisions of 0. 2r, r.' 63 of
the Code of Civil Procedure for a declaration that the deed of trust
executed in favour of the appellant deity was a sham and
fictitious document and the properties covered by it were liable to
sold in execution of their decree. The courts below dismissed
the suit but the High Court, by misplacing the onus on the deity
to prove its title, set aside the concurrent findings of the Courts
below and decreed the respondents' suit.
Held, that the question whether a trust deed was a fictitious
document or not was essentially a question of fact.
Meenakshi Mills, Madurai v. The Commissioner of Income-tax,
Madras, [r956] S.C.R. 69r, referred to.
It was well settled by a long series of decisions of the Privy
Council and of this Court that the High Court could not, in a
second appeal, interfere with findings of fact arrived at by the
Courts below, however erroneous they might be.
Even assuming that it was open to the High Court to go
behind the findings of fact, it was clear that it had completely
misdirected itself on the question of onus. In a suit, such as the
present, where the plaintiff sought for a declaration that a
document solemnly executed and registered was a fictitious one,
the burden lay heavily on him to prove that it was so and that
burden became still more heavy where he sought a declaration
that an order passed by the court upholding a claim of a third
party under 0. 2r, r. 60 of the Code was erroneous.

## Text

S.C.R.
SUPREME COURT REPORTS
PARES NATH THAKUR
v.
SMT. MOHANI DASI AND OTHERS
(B. P. SINHA, P. B. GAJENDRAGADKAR and
K. N. W ANCHOO, JJ.)
271
Execution-Deity's claim based on deed of trust upheld ~y
executing court-Suit by decreeholder-Deed, if fraudulent in
character-Burden of proof-Concurrent findings of fact-Power of
High Court in Second Appeal-Code of Civil Procedure 0. zr.,
rr. 60, 63.
The respondents as plaintiffs brought the suit, out of which
the present appeal arises, under the provisions of 0. 2r, r.' 63 of
the Code of Civil Procedure for a declaration that the deed of trust
executed in favour of the appellant deity was a sham and
fictitious document and the properties covered by it were liable to
sold in execution of their decree. The courts below dismissed
the suit but the High Court, by misplacing the onus on the deity
to prove its title, set aside the concurrent findings of the Courts
below and decreed the respondents' suit.
Held, that the question whether a trust deed was a fictitious
document or not was essentially a question of fact.
Meenakshi Mills, Madurai v. The Commissioner of Income-tax,
Madras, [r956] S.C.R. 69r, referred to.
It was well settled by a long series of decisions of the Privy
Council and of this Court that the High Court could not, in a
second appeal, interfere with findings of fact arrived at by the
Courts below, however erroneous they might be.
Even assuming that it was open to the High Court to go
behind the findings of fact, it was clear that it had completely
misdirected itself on the question of onus. In a suit, such as the
present, where the plaintiff sought for a declaration that a
document solemnly executed and registered was a fictitious one,
the burden lay heavily on him to prove that it was so and that
burden became still more heavy where he sought a declaration
that an order passed by the court upholding a claim of a third
party under 0. 2r, r. 60 of the Code was erroneous.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
655of1957.
Appeal by special leave from the judgment and
decree dated April 22, 1954, of the Orissa High Court
in Second Appeal No. 174of1948, arising out of the
judgment and decree dated January 12, 1948, of the
District Judge, Cuttack, in Munsif Appeal No. 309 of
1946 against the judgment and decree of the second
r959
May IZ.
272
SUPREME COURT REPORTS [1960(1)]
x959
Munsif, Cuttack, dated August 31, 1946, in Title Suit
Pares;,;;;;-Thakur No., 120 of 1943.
v.
A. V. Viswanatha Sastri and B. P. Maheshwari, for
Mohani Dasi
the appellant.
and OIMrs
Sinha ].
S. P. Sinha and R. Patnaik, for
respondents,
Nos. 2, 3 and 4.
1959. May 12. The Judgment of the Court was
delivered by
SINHA J.-This appeal by special leave is directed
against the judgment and decree dated April 27, 1954,
of the Orissa High Court, passed on second appeal,
reversing the concurrent decisions of the courts below,
dismissing the plaintiffs' suit instituted under the provisions of r. 63 of 0. 21 of the Code of Civil Procedure
(hereinafter referred to as 'the Code'). The suit had
been instituted by the' respondents for a declaration
that the deed of trust dated December 15, 1926, in
favour of the first defendant, Pares Nath Thakur,
installed in the Digamber Jain Temple, in the town of
Cuttack in Orissa, was sham and fraudulent and had
not been meant to be acted upon, and that the properties covered by the said deed of trust, belonged to
the defendants 2 to 4, and were liable to be sold in
execution of the decree obtained by the plaintiffs
against the defendants-second party (defendants 2 to 4).
The deity, the first defendant, was sued under the
guardianship of the trustees.
The facts of this case, leading upto this appeal, in
so far as they are necessary for the determination of
this appeal, are as follows: The plaintiffs are the
assignees of the mortgagee's interest in respect of a
simple mortgage bond dated April 14, 1927, executed
by the predecessors-in-interest of the defendantssecond party aforesaid. The mortgagees instituted a
suit in the court of the Subordinate Judge at Cuttack
to enforce the mortgage. They obtained a preliminary
decree on June 11, 1935, which was made final on
October, 13, 1936. In due course, the mortgaged properties were sold and purchased by the decree-holders,
but as the decretal dues were not satisfied by the sale
S.C.R.
SUPREME COURT REPORTS
273
of the mortgage properties, a money decree was obtainr959
ed against the defendants 2 to 4 for Rs. 11,000 odd,
-
on April 29, 1940. The disputed properties covered Pares Nath Thaki"
by the deed of trust aforesaid, had been attached
Moha:i Dasi
before judgment, on September 23, 1934. When the
and Others
decree-holder proceeded against the properties covered
by the deed of trust, the defendant-first party, through
Sinha .f.
the trustees, preferred a claim to the properties under
r. 63 of 0. 21 of the Code, claiming the properties as
belonging to the deity and not to the judgment-debtors.
The executing court, after holding an inquiry under
the Code, passed an order in favour of the clai191t.
Hence, the plaintiffs instituted the suit under the 'provisions of r. 63 of 0. 21 of the Code, alleging that the
trust deed aforesaid, by virtue of which the claim had
been allowed by the court, as aforesaid, was a sham
and fraudulent transaction which did not convey any
title to the property covered by the deed of trust and
the subject-matter of the suit. The two courts of fact
agreed in holding that there was an idol in fact, and
that the deed of dedication was effective to transfer
title fr-0m the donors to the donee, and that the donors,
who were the predecessors-in-title of the defendantssecond party, had .completely divested themselves of
any interest in the properties which were the subjectmatter of the deed of trust. It was also found that
the disputed properties did not belong to the family
of the mortgagors, and that the deed of trust had been
executed only with a view to putting the title to the
property beyond all doubt or dispute. The plaintiffs,
being unsuccessful in the first two courts, preferred a
second appeal to the High Court of Judicature at
Cuttack. The appeal was heard by a Division Bench,
consisting of Panigrahi, C. J., and Narasimham, J. The
judgment of the Court was delivered by the learned
Chief Justice who set aside the decisions of the courts
below, and allowed the appeal with costs throughout.
As the defendant-first party failed to obtain from the
High Court the necessary leave to appeal to this Court,
it moved this Court for special leave which was
granted.
Hence, this appeal.
33
274
SUPREME COURT REPORTS [1960(1)]
1959
It i~ manifest that the question to be determined by
Pares Nath Thakur the High Court on the second appeal, was essentially
v.
on~ of fact.
That the High Court was cognizitnt of
Mohani Dasi
this aspect of the case, appears from the following
and Others
observation with which the decision of the High Court
Sinha].
begins:-
" In second appeal the substantial point urged
before us is whether the evidence, both oral and
documentary, would warrant an inference that the
properties had in fact been dedicated to the deity."
It is well-settled by a long series of decisions of the
JUW.cial Commi~tee of the Privy Council and of this
Court, that a High Court; on second appeal, cannot go
into questions of fact, however erroneous the findings
of fact recorded by the courts of fact, may be. It is
not necessary to cite those decisions. Indeed, the
learned counsel for the plaintiff-respondents did not
and could not contend that the High Court was competent to go behind the findings of fact concurrently
recorded by the two courts of fact. The High Court
then set out to examine the evidence, both oral and
documentary, and after an elaborate examination of
the large volume of evidence adduced by the parties,
recorded the finding that :
"defendant No. 1 has failed to prove his title and
that the plaintiffs are entitled to have the suit properties sold with a view to satisfy the decree obtained by them against the judgment-debtors."
In our opinion, the High Court has completely misdirected itself both in law and on facts, as will presently
appear, even assuming that it was open to it to go
behind findings of fact.
In the first place, the High Court has mis-placed the
onus of proof, as will appear from the conclusion just
quoted above. The onus of proof loses much of its
importance where both the parties have adduced their
evidence. But the High Court seems to have laid some
emphasis on onus of proof, with a view to examining
for itself whether that onus had been discharged by
the contesting defandant, the deity.
This becomes
clear from the following observation of the High
Court;-
S.C.R.
SUPREME COURT REPORTS
275
".Judged by these principles Ext. F, the deed of
z959
trust by itself creates no endowment;
an~ it is Pares ~:;;,Thakur
necessary for the defendants to show by evidence
v.
aliunde that there had been an existing endowment
Mohani Dasi
in favour of this particular idol to which the descripand Others
tion 'Devottar' can be applied."
Further down, the High Court observed as follows,
after referring to what it characterised as "innumerable decisions " :-
'
'' Applying the above principles to the facts of
this case, we find that no evidence has been given
with regard to the formal dedication of the properties to the deity except what is recited in Ex. F.
This recital is insufficient to support a finding that
there had been a real dedication of these properties."
With due respect to the High Court, it must be
remarked that it appears to have lost sight of the wellestablished rule applicable to suits of the kind it was
dealing with, that the burden of proof is heavy on a
plaintiff who sues for a declaration of a document·
solemnly executed and registered, as a fictitious
transaction. The burden becomes doubly heavy when
the plaintiff seeks to set aside the order of the civil
court, passed in execution proceedings, upholding the
claim of a third party to a property sought to be
proceeded against in execution.
The plaintiff, who
seeks to get rid of the effect of the adverse order
against him, has to show affirmatively that the order
passed on due inquiry by the executing court, was
erroneous. Hence in this case, apart from the fact
that the respondents were the plaintiffs, there was an
initial heavy burden on them not only to show that
the order of the civil court in the claim case, was
erroneous, but also that the deed of trust relied upon
by the contesting defendant, waR fictitious.
The two
courts of fact had discussed all the relevant evidence in
great detail, and had agreed in finding that the
plaintiffs had failed to prove their case. The question
which the courts below decided and which was the
only question in controversy before the High Court;
was whether the trust deed was a fictitious transaction.
Such a question is essentially one of fact.
See the
Sinha].
276
SUPREME COURT REPORTS [1960(1))
'959
latest decision of this Court in the case of M eenakshi
r
N th Tl k Mills, Madurai v. The Commissioner of Income-tax.
ares
:.
•• "'Madras ('), where it has been laid down, inter alia,
Mohani Dasi
that a finding of fact, even when it is an inference
and Others
from other facts found on evidence, is not a question
Sinha].
of law, except in certain specified cases.
The case
before us certainly is not one of those specified cases.
These observations are sufficient completely to displace
the decision of the High Court, but we shall examine
the reasons of the High Court for setting aside the
concurrent findings of fact of the courts below, to see
whether the High Court was right in its conclusions,
assuming all the time that.· the High Court was
competent to go into those questions of fact.
The
High court was considerably influenced by certain
recitals in the deed, as will appear from the following
observations :-
" Above all, there is a further significant recital
which appears to have escaped the notice of both
the courts below, and that is that the 'trustees can
dispose of the properties if ever they think it necessary, and may also appoint a Pujari for conducting
the daily worship of the deity '."
In making these observations, the High Court has
completely missed the real significance of the following
paragraph towards the end of the deed:-
"Be it stated that if it will be required at any
time, you the trustees according to your unanimous
opinion will sell the property situated at Mouzas
Baramunda, Siripur and Nuapalli etc., in Killa
Khurda and Zilla Dandimal out of the immovable
properties described in schedule 'kha' of this deed
and will appoint any servant etc., for the purpose of
worship."
It will be noticed from the above-quoted provision in the
deed that the trustees were specifically empowered by
the deed to alienate certain specific properties which,
according to the evidence, were very inconveniently
situated. The properties in dispute in this case, are
not in that category. The properties are land and
house in the town of Cuttack, were the deity is located.
Hence, in the first instance, the specific power of
(1) [1956) S. C.R. 691.
S.C.R.
SUPREME COURT REPORTS
277
alienation granted to the trustees, did not app~y to the
x959
Properties in dispute. Secondly, such a provision in a P
Nth Th •
.
.
ares
a
an:ur
deed of trust is not wholly out of place, w hwh could
v.
lend itself to the inference that the document was not
Mohani Dasi
intended to be acted upon.
and Others
The High Court then examined in detail the evidence
of D. W. 3, who, on its own findings, is a respectable
person. About this witness, the High Court observed:
"Undoubtedly, the testimony of this witness is
entitled to great respect and the courts below have
accepted it as reliable."
While dealing with the evidence of this witness, the
High Court proceeded to make the further remarks :
" We are here concerned with the determination
·of the sole question as to whether there has, in fact,
been a dedication in favour of the deity. No witness
has been called to prove the gift of any single item
of the properties in suit. Even the evidence relating
to the installation of the idol is extremely obscure."
Here again, the High Court appears to ha vc overlooked
the evidence of D. W. 1, Kunjabahari Lal, who has
stated as follows :-
"The disputed shop house belongs to the Thakur.
In 1870 or 1872, one person probably of the name
of Maniklal gifted.the disputed shop house to the
Thakur."
While dealing with the question whether the deed of
trust had been given effect to, the High Court made
the following significant observations:-
"There is no evidence of the appropriation of the
rents and profits of the properties upto the year
1938, and even the accounts, which are alleged to
hl:l.Ve been maintained, have not been produced."
The High Court, here again, appears to have over·
looked some material evidence, bearing on this aspect
of the matter. Particularly significant, is the evidence
of one Dhaneswar Lal who was examined· by the
executing court in the claim case aforesaid, on behalf
of the claimant. The following statement in his evidence, which was marked as ext. M at the trial
because the witness was dead, is pertinent:-
Sinha].
z959
Pares Nath 1'/za/afr
v.
!vl okani Dasi
and Others
Sinha].
278
SUPREME COURT REPORTS [1960(1)]
" I. look after the Thakur's affair. I am a
Panchayat member of the Thakur. I also perform
its Puja and get a pay of Rs. 12 for it. Since 1934, I
work as Thakur's Pujhari, and look after the Thakur's land since 1936. I regularly maintain accounts.
These accounts have been filed in the 2nd Munsif's
Court in connection with Suit No. 94 of 1941. The
disputed property relates to lots 1 and 2 of the trust
deed.
Plot 216 is Thakur's temple. It is a twostoreyed building."
The witness had been cross-examined by the plaintiffs
who were opposing the claim, and in his cross-examination, it was brought out that the accounts which
the witness stated had been filed in the 2nd Munsif's
Court, also included expenditure made in the temple.
In this connection, it is noteworthy that the plaintiffs
had not called upon the contesting defendant to
produce those account-books in respect of the properties in dispute. If that party had been called upon to
produce those documents and it had failed to produce
them, an adverse inference might have been permissible to a court of fact. But apparently, the High Court
was inclined, on the second appeal, to draw such an
adverse inference even though no foundation had been
laid at the trial for justifying such an inference. To
the same effect, are the following observations of the
High Court :-
" On the other hand, the other facts and circumstances of the case raise a strong presumption that
there had, in fact, been no such endowment."
It is clear, therefore, that the decision of the High
Court on the second appeal, reversing the concurrent
findings of fact of the two courts below, is based upon
inferences drawn from evidence oral and documentary,
after mis-placing the onus of proof. This, the High
Court was not entitled to do.
Besides, as we have
already indicated. even on the merits, the findings of
the High Court are open to serious criticism and must
be held to be unsound.
lfor the reasons aforesaid, it is clear that the judgment of the High Court cannot be supported. The
appeal is, accordingly, allowed with costs throughout,
and the suit will stand dismissed.
Appeal allowed.