Arshid Hussain vs Ishtiaq Ahmad Khan

As agreed to by learned counsel for the parties, this revision petition is being disposed of at the very admission stage.

This revision petition arises out of the order purported to have been passed by Munsiff, Anantnag in Civil suit No: 83 instituted on 20587 for

declaration of Abtalnama (Cancellation Deed) of the will deed purported to have been executed by Khana Begum widow of Fateh Bahadur Khan

R/O Gopalpora Kalan, tehsil and district Anantnag on 1811984 and registered on 01021984 as null and void as the same has been obtained

fraudulently and by deceitful means by producing some other lady instead of Khana Begum and thereunder the will deed which is alleged to have

been executed by deceased Khana Begum in favour of the petitioner/ plaintiff, whereunder she has adopted the person of the petitioner and her

self acquired property was to devolve on the petitioner, as her adopted son.

The facts in brief which have given rise to the present revision petition are that the person of Khana Begum was issueless and it is alleged that

she had adopted Arshid Hussain (minor), present petitioner herein as Pissarparvarda and has executed a will deed in his favour.

On the other hand, the husband Fateh Bahadur Khan of deceased Khana Begum had adopted the defendant as his Pissarparvarda to inheret the

property left out by said Fateh Bahadur Khan. It is alleged that after the Khana Begum is alleged to have executed the will deed in favour of the

petitioner, the person of Mohammad Ayub Khan, real father of minor petitioner herein, who is at present next friend of the petitioner started

interfering in the possession and property of Khana Begum, which constrained her to execute a cancellation deed, which is impugned in the suit in

hand.

On the pleadings of the parties, the learned Munsiff had framed about seven issues in the matter, which are both legal as well as factual and out

of these issues, issue No.4 has been caste as under:

Whether the alleged cancellation deed purported to have been executed on 1.2.1984 and the affidavit dated 4.4.1984 are concocted, fabricated

and fraudulent.

The onus of proof of this issue has been placed on the plaintiff/petitioner.

The plaintiff/petitioner feeling aggrieved of the framing of the issue and casting of onus of proof of him, has filed the present revision petition.

Mr. Attar appearing for the respondent raised an objection that the revision petition does not fall within purview of section 115 of the Civil

Procedure Code as because the order impugned does not amount to case decided and that there is no reason for filing the present revision. The

onus of proof has been correctly placed on the person who alleges fraud and fabrication of the alleged document purported to have been executed

by deceased Khana Begum and the document is duly registered, whereunder the so to say will deed obtained or given by deceased Khana Begum

has been called back and canceled by said Khana Begum.

The arguments projected by Mr. Attar that no revision will lye is not well founded, as it has been held by different courts of the country that

placement of onus of proof is also coming within the definition/purview of case decided as has been held in AIR 1975 Punjab and Haryana page

174, wherein their lordships have held as under :

An order of a subordinate court refusing to change the onus of an issue falls within the words ""case decided"". The expression ""case"" is a word of

comprehensive import; it includes a civil proceeding and is not restricted by anything contained in S.I 15 to the entirety of the Proceedings in a Civil

Court.........

Reliance by their lordships have been made on AIR 1970SC 406, AIR 1964 SC 497 and AIR 1943 Lahore 65.

Similarly in AIR 1982Rajasthan 77, it has been observed by their lordships that the order dismissing an application under the provisions of

Order 14 Rule 5, whereby refusing to frame additional issue would certainly be an adjudication in the course of a suit of some right or obligation of

the parties in controversy and would fall within the words ""case decided.

Thus even refusal of framing of additional issue has been held as case decided and is revisable.

The main plank of arguments of learned counsel for the petitioner is two fold:

Firstly that the onus of proof has been put on him which is a negative assertion; and

Secondly the deed purposed to have been executed and named as Cancellation deed of the will deed has been obtained from some other lady.

So it is for the respondent to prove that the deed was obtained without undue influence, fraud or coercion and the law which has developed in this

respect is that the onus of proof should have been on the person of the defendant and not on the plaintiff.

Learned counsel places reliance and asserts that the person of deceased Khana Begum being a lady she has been made to execute a

cancellation deed or that some other lady has been produced instead of said Khana Begum before the authorities for execution of the alleged

cancellation deed of the will on 1.1.1984 and got registered the same thereby the person of the petitioner (minor) is being deprived of the usufructs

and the property which has been duly willed by the person of Khana Begum deceased in favour of the plaintiff/petitioner by adopting him as her

adopted son.

Though onus of proof in case where Pardanishin ladies are involved shifts on the person of other party who pleads that the deed has been duly

and authentically got executed and on this analogy, he projects that the onus of proof of issue No. 4 as struck in the case, should have been on the

person of defendants rather than on the person of the plaintiff.

Ld. Counsel has drawn my attention to AIR 1984 Patna 257, wherein their lordships have laid down:

Pardanasin ladies have been given a special protection in view of the social conditions of the time and they are presumed to have imperfect

knowledge of the work. In cases where documents are taken from Pardanasin ladies, the court has to ascertain that the party executing the

document has been a free agent and duly informed of what the document was about. The general presumption is that a person understands the

document to which he has affixed his name but this presumption is not applicable in the case of Pardanasin ladies. It is well settled that the burden

of proof always rests upon the person who seeks to sustain a transaction entered into with a Pardanasin lady to establish that the said document

was entered into by her after careful understanding the nature of transaction. It must be established that it was not her physical act but also her act.

Thus burden of proof can be discharged not only by proving that the document was explained to her and that she understood it but also by other

evidence, direct and circumstantial. This special rule in a deal with pardanasin lady which is evolved for the protection of Pardanasin lady, should

not be confused with other doctrine such as fraud, duress, undue influence which apply to all persons whether they be Pardanashin ladies or not.

It may be noted that the general rule of onus of proof is covered under the provisions of Section 101 to 103 of the Evidence Act. Section 102

of the Evidence Act laid down that the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given

on either side, meaning thereby:

a) A sues B for land of which B is in possession and which, as A asserts, was left to A by the will of C, B's father.

If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.

b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.

If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved.

Therefore the burden of proof is on B.

So it means that the person who pleads fraud or undue influence or coercion or duress, has to plead and prove the same irrespective of the

fact, whether they be Pardanasin ladies or not. Moreover in the case in hand copy of the plaint and the written statement as placed before me

nowhere and at no stage indicate that the person of the plaintiff has pleaded that the person of Khana Begum was a Paradanisin lady or that she

was illiterate and could not understand the deed or contents of the deed of cancellation of will. So there is no pleading as such that the person of

Khana Begum, deceased through whom the person of plaintiff claims, was a Pardanisin lady and can claim special treatment that the deed obtained

from her is to be proved, was obtained by the respondents without undue influenced fraud or coersion. It is the plaintiff who pleads that the deed is

null and void and has been obtain by fraud, undue influence and above all by production of some other lady as substitute of Khana Begum

deceased in getting the deed. The onus of proof of all these elements has rightly been placed by the trial court on the person who pleaded like that.

Even if the learned Munsiff would have put the issue on the defendant that the deed, cancellation of which is sought i.e. Abtalnama has been

obtained validly, by the defendant from the person of Khana Begum and got duly registered and in case of proof of this issue, a counter issue

would have been put on the plaintiff that in case of proof of the above issue in the affirmative, the deed in question has been obtained by fraud and

undue influence or otherwise by the person of the defendant, the onus of proof of this issue will again be cast upon the person of the plaintiff. So

the matter boils down to the same position that the onus of proof of issue in relation to issue No. 4 has been placed in derogation of law and the

procedure.

For the foregoing reasons, the revision petition is misconceived and is disposed of accordingly. However, the observations made in this order

should not be deemed in any way prejudicial to either of the parties in proving their respective case before the trial court.