Rajendra Prasad alias Rajendra Kumar Khosla vs Braham Bhushan Khosla

Gautam Kumar Choudhary, J

This  is  plaintiffs’ second  appeal  against  which  the  judgment  of reversal.

Plaintiff filed the suit for following reliefs:-

I.   Declaration that defendant no.1-Rajendra Prasad @ Rajendra Kumar Khosla was the foster child of plaintiff no.1.-Gyan Devi and her husband-Ram Roop Khosla.

II. For eviction of defendant no.1 from suit premise bearing portion of holding no.6 situated at Rajendra Nagar, P.O. Sakchi, Jamshedpur detailed Schedule B of the plaint.

As per the case of the plaintiff, defendant was an orphan who was living in Arya Samaj at Jamshedpur. In or about 1949, they brought him to their residence in the Quarter allotted by TISCO. They educated their foster child (defendant no.1), got him married and settled him in life.

Ram Roop Khosla, the husband of plaintiff no.1 constructed house in Schedule A land in which defendant no.1 moved along with Khosla family and was given occupation in first floor of the house detailed in Schedule B. Later, differences developed between the wife of defendant no.1 and plaintiff no.7 regarding which proceeding under Section 107 of the Cr.P.C. was drawn.

The case of the defendant is that he was not foster son, but the natural son of Ram Roop Khosla (plaintiff no.1) and therefore, he was entitled to inherit all the properties left by him. It is also claimed that he was in possession of the property.

On the pleadings of the parties, following issues framed by the trial court:-

Issue No.V Whether defendant no.2 was the natural or foster child of Rajendra Kumar Khosla and plaintiff no.1.

Issue No.VI Whether defendant no.1 has any interest in the property of Late Ram Roop Khosla.

Issue No.VII Whether defendant can be evicted from the suit property and restrain from interfering with the possession of the plaintiff.

Learned trial court recorded the finding on all these three issues against the plaintiff and the suit was dismissed. On Issue No.V, it was held that since the plaintiff had failed to prove that defendant no.1 was the foster child therefore, an inference was drawn that he must have been the natural child of plaintiff no.1 and her husband Late Rajendra Kumar Khosla.

Learned first appellate court reversed the judgment of the trial court and decreed the suit inter alia on the ground that in view of the ratio laid down by the privy council in Nand Kishwar Bux Roy Versus Gopal Bux Rai, AIR 1940 Privy Council 1993 wherein plaintiff had challenged that defendant no.1- Nand Kishwar was of son of Binodini Devi from her late husband Surendra. In that case, the principle was laid down that provision of Section 112 of Evidence Act has no application to the case where maternity of the person is in dispute. Apart from this, documents were considered by the first appellate court while returning the finding that he was not the natural child. Among the said documents, Exhibit 1 which was a counter foil of School Leaving Certificate Bhartiya Model School, Jamshedpur wherein the name of pupil was mentioned Rajendra Prasad and father’s name was mentioned as R. R. Khosla just above the column there was an entry as guardian and after the name of R.R. Khosla, the word ‘orphan’ was noted. The date of birth in the counter foil of School Leaving Certificate was 03.03.1945. Similar is the case of Exhibit 2 which is the School Admission Register where the word ‘guardian’ and word ‘orphan are not noted in the School Admission Register.

Learned  first  appellate  court  noted  that  defendant  no.1  failed  to produce entry of High School Register therefore, the adverse inference was liable to be drawn. After death of Ram Roop Khosla, partnership firm was re-constituted in 1970 and the re-constituted partnership deed (Exhibit 4h-4 k) and in this re-constituted partnership firm, defendant no.1 was given no share, but no objection was raised against at it for being deprived of share in it.

This appeal has been admitted to be heard on the following substantial question of law:

Whether the court of appeal below has erred in law in reversing the findings of the trial and holding defendant no.1 to be foster son of plaintiff no.1?

It is submitted by the learned counsel on behalf of the appellant that the first appellate court was in clear error of law in view of Sections 101 and 102 of the Evidence Act to shift the burden of proof on the defendant. The suit was brought by the plaintiff inter alia for a declaration that defendant no.1 was the foster son and therefore, burden of proof was on the plaintiff. It is submitted that the matriculation certificate has been produced by the defendant no.1 which has not been considered by the first appellate court. Learned first appellate court has not met with the reasoning of the trial court.

Learned counsel on behalf of the respondents submitted that burden of proof under Section 101 of the Evidence Act does not shift. But once the plaintiff discharges his initial onus of proof of a particular fact the onus to lead evidence in rebuttal of the said fact shifts on the defendant under Section 103 of the Evidence Act. In the present case, the plaintiff had discharged its burden by leading documentary evidence which has been discussed by the first appellate court and marked as exhibits, where R.R. Khosla has been stated to be the guardian and not father, and there is specific reference to the defendant no.1 to be the orphan. Having discharged the onus, it was shifted on the defendant to lead positive evidence to show that he was not the foster son, but the natural son, but no cogent evidence in rebuttal was led. Learned first appellate court has committed no error by relying the judgment rendered by the Privy Council.

Having considered the submissions advanced on behalf of both sides and the materials on record, this Court is of the view that first appellate court has assigned sufficient reasons while reversing the judgment.

The main principle governing the burden of proof is that the party who makes a legal claim must prove the operative legal facts for that claim, i.e. the facts that according to the law are ordinarily sufficient reasons for the claim. In theory, the term means two kinds of burdens : the burden of production and the burden of persuasion which is an obligation that remains on a single party for the duration of the court proceedings. The burden of persuasion should not be confused with the evidential burden or burden of production of evidence which is an obligation which may shift between parties over the course of the hearing or trial. It has been held in Anil Rishi Vs. Gurubaksh Singh, AIR 2006 SC 1971 that

in terms of section 102 initial onus is always on the plaintiffs and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstance which would disentitle the plaintiffs to the same.

It should be noted that plaintiff no.1 is Gyan Devi who filed the suit for declaration that defendant no.1 was not her son, but orphan, who had been kept as foster child by her husband Late R. R. Khosla along with plaintiff no.1. Normally in natural course of human conduct , no mother will file a suit for declaration that her biological son was not her son. Learned first appellate court noted the oral and documentary evidence led on behalf of plaintiff showing the Defendant to be an orphan and R.R Khosla to be the guardian in support of pleading, and drew the adverse inference for not leading contrary evidence as the relevant school register was not brought into evidence by defendant no.1 to rebut the evidence that he was an orphan and R. R. Khosla at the time of admission was a guardian to him. I do not find any error of law is committed by the 1st Appellate Court in reversing the Judgment and decree of the learned trial Court.

Second Appeal is dismissed with cost.