A filed a suit against her maternal uncle B seeking partition of her share in land measuring about 24 acres left behind by A’s father… How would you decide the question of the onus of proof in these circumstances?

Question: A filed a suit against her maternal uncle B seeking partition of her share in land measuring about 24 acres left behind by A’s father. B resisted the suit on the ground that A’s mother who was an old, blind, tribal woman, and was living with B had executed a sale deed in favour of ‘W.

A challenged the sale on the ground that it was obtained by exercising undue influence on her mother, who was a blind, illiterate, tribal woman living at the mercy of B till her death. B led no evidence to show that any consideration had actually passed at the time of registration of sale deed.

In these circumstances, whether ‘A’ can be said to have discharged the onus of proof that the sale transaction was vitiated because of undue influence? How would you decide the question of the onus of proof in these circumstances? [D.J.S. 1996]

Find the answer to the mains question only on Legal Bites. [A filed a suit against her maternal uncle B seeking partition of her share in land measuring about 24 acres left behind by A’s father… How would you decide the question of the onus of proof in these circumstances?]

Answer

The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:-

“Whoever desires any Court to give 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 the party who substantially asserts the affirmative issues and not the party who denies it.

Moreover, Section 111 dealing with Proof of good faith in transactions where one party is in relation to active confidence states Where there is a question as to the 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.

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 the position of active confidence is drawn. The factum of active confidence should also be established. The words 'active confidence’ indicates that the relationship between the parties must be such that one is bound to protect the interests of the other.

In the case of Krishna Mohan Kul @ Nani Charan Kul and Anr. v. Pratima Maity and Ors. [AIR 2003 SC 4351] the court has observed herein under:

“The onus to prove the validity of the deed of settlement was on defendant No. 1. 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 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. 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 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…”.

Further, in a suit for recovery of possession based on title, it is for the 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 [1964] 2 SCR 933 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 shifts.

The onus of proof shifts. Such a shifting of the onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on the 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, thereof the burden of proof lies on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.

Applying the provisions of section 111, and reasoning of above judicial pronouncements to the present case at hand, where A filed a suit against her maternal uncle B seeking partition of her share in land measuring left behind by A’s father and B resisted the suit on the ground that A’s mother was living with B had executed a sale deed in favour of ‘W.

The initial burden of proof should have been on the Plaintiff who moves to the court, asserting a fact but since A challenged the sale on the ground that it was obtained by exercising undue influence on her mother, who was a blind, illiterate, tribal woman living at the mercy of B till her death. The facts explicitly show that there was a clear fiduciary relationship between B and A’s mother and B was acting in active confidence so the onus of proof now shifts upon him to prove that such undue influence was not exercised by him upon A’s mother in executing the sale deed.

Further, as B led no evidence to show that any consideration had actually passed at the time of registration of the sale deed. In these circumstances, ‘A’ can be said to have discharged the onus of proof that the sale transaction was vitiated because of undue influence and the court shall accept the same.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
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8. Law of Evidence Mains Questions Series Part-VIII
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