Abdul Rahman and others vs Mahomed Azim, Decree-holder

We think the District Judge was wrong in holding that the burden of proof in this case was upon the judgment-debtors. It appears that a decree was obtained against them as the representatives of their deceased father for money due by him. In execution of that decree the decree-holder attached a number of cattle as the property of the deceased father now in the possession of the sons, The sons claimed the cattle as their own and said their father had no interest in them. The first Court directed the release of the cattle on the ground that the decree-holder had not made good his case as regards them.

The District Judge reversed the decision holding that the burden of proof was upon the judgment-debtors and that they had failed to discharge it.

The one question which the Courts had to try was whether the cattle belonged to the deceased and on his death came into the possession of the Defendants, and the burden of proof, it seems to us, lay on the decree-holder who asserted that state of things. No doubt if he alleged and proved that property of the deceased had come into the possession of the sons the latter would be personally liable to the extent of the property so received and not duly accounted for by them. But this is not a case of that kind. Here specific property has been seized as the property of the father. The Judge does not in any way refer to the evidence. He merely holds that the burden of proof is on the judgment-debtors and although he adds that the probabilities are in favour of the decree-holder''s version we cannot regard his judgment as a decision on the question which he had to determine. It is moreover quite uncertain how far the decision, if it is one, has been affected by the erroneous view which the Judge took as regards the burden of proof.

We set aside the decision of the District Judge and send back the case in order that he may decide upon the evidence in the case, the question upon which the parties are at issue. The costs will abide the result. We assess the hearing fee at one gold mohur.