Ram Murti vs Kabal Singh and Others

Mehar Singh, J.—This second appeal arises out of a usual declaratory suit under custom. Phul Singh Defendant is the brother of Ram Murti alias Ram Chand Plaintiff. He made, the following four alienations of his land-

(a) a mortgage, dated 25-7-1950, of 7 bighas and 10 biswas land in favour of Ami Chand and others, Defendants No. 2, for Rs. 900/-;

(b) a mortgage, dated 13-6-1951, of 12 bighas and 10 biswas land in favour of Anchal Singh, Defendant No. 3, for Rs. 2,500/-;

(c) a mortgage, dated 15-6-1951, of 7 bighas and 9 biswas land in favour of Kabal Singh and others,'' Defendants No. 4, for Rs. 2,400/-; and

(d) a sale, dated 21-1-1953, of 2 bighas and 13-1/4 biswas land in favour of Kehar Singh, Defendant; No. 1, for, Rs. 596/-.

The Plaintiff alleged that the lands alienated are ancestral qua him and his brother, the alienor, that all the alienations were effected without consideration and legal'' necessity, and that the parties were governed by custom in matters of alienation. He further averred .that the alienor was a man of extravagant and reckless habits and was addicted to bad ways such as taking liquor and opium and so the alienations were made by him as reckless extravagance and waste and in order to injure-his reversionary rights in the lands.

He therefore prayed for a declaratory decree that the alienations would not be binding upon his reversionary interests after the death of his brother Phul Singh. Of course the alienees in their written-statements controverter all the averments of the Plaintiff.

The learned trial Judge found for the Plaintiff that the parties are governed by custom in matters of alienation, that the alienated lands are ancestral qua the Plaintiff and the alienor, that the alienor is a man of reckless and extravagant habits and has wasted the estate to the injury of the'' reversionary interests of the plain-tlff and that all the alienations are without legal necessity.-'' The suit of the Plaintiff was decreed qua. all the four impugned alienations.

There was no appeal against the decree toy Defendants 1 and 2, but Defendants 3 and 4 filed an appeal against it, which was heard and decided by the learned Additional District Judge of Patiala. He came to the conclusion that the finding of,the learned, trial Judge against the appealing Defendants has been prejudiced on account of the omission to frame an issue that the alienor is a man of extravagant and reckless habits, in spite of the Plaintiff having made a specific averment in this respect in the plaint, and as there was no issue on the question so the de-fendants-Respondents did not get proper opportunity to lead evidence upon it.

In the result he framed an issue whether Phul Singh alienor is a man of extravagant habits: if so, what is its effect? - and placing the onus of proof of the issue upon the Plaintiff, he, curiously enough, did not proceed according to the procedure provided in Order 41, Rule 25, Code of Civil Procedure, and remit the issue for trial and finding to the trial Court, but set aside the decree of the trial Court as a whole and ordered a re-trial of the case, in so far as the appealing Defendants were concern-'' ed.

It is against the decree of the learned Additional District Judge, in the circumstances stated, that the Plaintiff has come up in second appeal.

The procedure adopted by the learned Additional District Judge, assuming for the moment that the remand of the case was justified, was entirely un-warranted, and in the view that he took, the only course open to him was to settle the issue and then follow the procedure as given in Order 41, Rule 25, Code of Civil Procedure, in which case the appeal would have still remained pending in-his Court for disposal till after the receipt of the evidence and finding on the issue by the trial Court.

The learned Counsel for the Plaintiff urges (a) that the issue settled by the learned Additional District. Judge was unnecessary be cause the burden of proving the validity of an alienation is upon the alienee and it is for him to prove that the alienor is not a man of extravagant and immoral habits and the debt is not tainted and thus the matter of the new issue was already covered in the issue in the case, and (b) that, in any case, if such an issue was necessary, the burden of proof of it must be upon the alienee.

The answer on behalf of the Defendant''s la that the alienee cannot be expected to prove the negative and so both the issue was necessary and the burden of proving it could only be placed upon the Plaintiff. Reliance in this behalf is placed upon the dictum of Sir Jai Lal, as President of the Judicial Committee of former Patiala State, in - ''Hardwari Singh v. Dewan Singh'' 11 PLR 54 (A).

The leading authority on the question is ''Devi Ditta v. Saudagar Singh'', 65 Pun Re 1900 (FB) (B), in which delivering the judgment of the,Full Bench Chatterji J., has held that the onus-of proof of the validity of an alienation of ancestral land by a male proprietor always lies, in the first instance, on the alienee, whether he be a third party or a person whose debts have been paid off by the alienation. It has further been held in this case that the payment of his just antecedent debts by a male proprietor is a necessity. The definition of."just debts''.'' given is:

(a) debts which are actually due and are not immoral, illegal or opposed to public policy;

(b) debts not contracted as an act of reckless extravagance or of wanton waste or with the intention of destroying the interests of reversioners

This definition of ''just debt'' has been approv ed by the Privy Council in ''Kirpal Singh'' v. Balwant Singh'', 26 Pun Re 1913 (PC) (C). On, the question of ''how the burden of proving the validity of an alienation.is to be discharged by the alienee the Full Bench has held (a) that an. alienee who is himself the antecedent creditor by his position is prima facie fixed with the know-ledge of the nature of the debts and of the pur--poses on which the money borrowed was spent, and if they were not incurred for actual necessity or were contracted for reckless extravagance or to waste the estate, the alienation in lieu of such debts is invalid, and (b) that an outsider who pays the antecedent debts in consideration of the transfer of the property if he acts honestly and makes proper enquiry whether the debts are actually due, is not responsible if he has been deceived and is entitled to have the alienation declared binding.

So that in the case of the antecedent debtor being due to a third party, all that the alienee has to prove is that the debts are actually due, but in the case in which the antecedent debts are due to the alienee himself, as he is prima facie fixed with the knowledge of the nature of the debts and of the purposes on which the money borrowed was spent, so it is for him to prove that they were either incurred for actual necessity or were not contracted for reckless extravagance or to warte the estate.

This appears to be the difference between the position of the two types of alienees. The distinction has been clearly brought out by Chatterji J. But after the decision in the Full Bench case, there remained, for a considerable time, divergence of Judicial opinion as regards the position of an alienee who is himself the antecedent creditor. Some of the learned Judges were of the opinion that once such an alienee proves that the antecedent debt was actually due, it was not necessary for him to prove anything more and his position was at par with the antecedent debt being due to a third party, but some other of the learned Judges did not agree with this view and insisted upon such an alienee also proving necessity for such a debt.

The question came up for consideration of a Pull Bench of the Lahore High Court in ''Karnail Singh v. Naunihal Singh AIR 1945 Lah 188 (D), and at pages 192 and 193, Mahajan J., explaining the opinion of Chatterji J., in the previous Pull Bench case, has observed:

"As I understand this matter it seems that the difference in the two kinds of alienees, i.e., between an alienee who was himself an antecedent creditor and a stranger alienee, has never been based on the ground that the definition of a just debt is different in the two cases, nor on the ground that the creditor alienee has to prove legal necessity for the debts advanced by him.

The difference in the two kinds of alienees has been grounded on the basis of certain rules of evidence and principles of equity applicable to their respective cases. This distinction between the two classes of alienees has been made not because their cases are governed by different principles of law but because the position of an alienee who is an antecedent creditor himself is one of vantage qua the alienor and by reason of his relationship with the alienor he is fixed with the knowledge of the nature of the debt .......... ... ... .... .... .... .... .... .... ....To put it briefly the difference in the two classes of alienees lies in the fact that in the case of a '' stranger alienee it is presumed that the debt due to the antecedent creditor, without more is a just debt, while in the other case no such presumption can be made.

The onus is on the alienee, who is an antecedent creditor to eliminate circumstances which would remove suspicion that the antecedent advance was not such as would take it out of the definition of "just debt", i. e., is not one that has been advanced to an extravagant and immoral person for extravagance, waste and immoral purpose and is not of a kind which has been unnecessarily incurred as a part of the design to injure the reversionary body."

The opinion of Mahajan J., only puts what was the opinion of Chatterji J., in a rather more clear and distinctive perspective. It is now clear that it is for the alienee, who is an antecedent creditor himself, to prove that the debt "is not one that has been advanced to an extravagant and immoral person for extravagance, waste and immoral purpose and is not of a kind which has been unnecessarily incurred as a part of the design to injure the reversionary body;

is not one that has been advanced to an extravagant and immoral person for extravagance, waste and immoral purpose and is not of a kind which has been unnecessarily incurred as a part of the design to injure the reversionary body;

so that the burden of proving this lies upon the alienee. When an issue is framed placing the burden upon the alienee to prove necessity for a aeot and he has to prove that it is a ''just debt'', it follows that he has to prove all the ingredients. in the definition of a ''just debt'', and the onus lies-upon him to prove both the positive and negative aspects of that definition. Negatively he has to prove the absence of character in the alienor that would allay suspicion as to the justness of the debt.

No specific issue as to the character of the alienor is thus necessary, because the main issue as to the necessity or justness of the debt directly brings in the character of the alienor and where the alienee is himself the antecedent creditor, this matter is always directly in point. This, in my opinion, is so even if the Plaintiff does not make an allegation against the character of the alienor, but where he does make a specific allegation, there can be no manner of doubt that the onus of showing that the character of the alienor is not such as to take away the antecedent debt of the alienee-himself out of the category of a ''just debt'' lies upon him.

A contrary view appears to have been taken by Sir Jai Lal, the President of the Judicial Committee of the former Patiala State, in ''11 PLR 54 (A)'', in which at p. 64, the learned President, with reference to the definition of a. ''just debt'', as given in - ''Devi Ditta v. Saudagar Singh'', (B), by Chatterji j., observes-

It would be observed'' that the definition comprises both positive and negative implications that the debt must be actually due, the negative condition is that it should not be immoral or reckless extravagance or wanton waste or with the intention of destroying the interest of reversionary. Therefore while the existence of the previous debt at the time of the alienation must be proved by; the alienee, there is no justification for holding; that the absence of immorality or extravagance or recklessness should also be always proved by him because a person ought not ordinarily be called upon to prove the non-existence of facts in the first instance.

It shows from this that if the existence of a previous debt is proved by the vendee it would be for those who seek to set aside the alienation indebtedness of the alienor.

This decision of the Judicial Committee of the former Patiala State was given in the year 1943, and, though it purports to follow the Pull Bench- case of - ''Devi Ditta v. Saudagar Singh'', (FB) (B), the learned President had not the benefit of the opinion of Mahajan J., in the subsequent Lahore Full Bench case of - ''Karnail Singh v. Naunihal Singh'', (D). In the latter case Maha jan J., has with clarity explained that the onus of the negative aspect of. the definition of ''just debt'' in the case of the antecedent debt being of a stranger is discharged by the alienee by a presumption in his favour that it was not incurred for immoral or extravagant purposes or to the injury of the interests of the reversionary body but that in the case of the alienee being himself the antecedent creditor no such presumption is available and he must prove this aspect of the definition of ''just debt'' as well.

These aspects of the matter have been dealt with by Chhatterji J., in ''Devi Ditta v. Sauda '' gar Singh'', (B). This is the requirement of the law and the question of burden of proof must follow the line of this requirement. In view of the dicta in the two Pull Bench cases, already cited, I am of the opinion that the opinion of the learned President in Hardwari Singh v. Dewan singh (A) is no longer good law.

The learned Counsel for the Defendants-Respondents, on the basis of ''Santu v. Sohan Lal'' AIR1951 Pepsu 33 (FB) (E), contends that the decision of the Judicial Committee is binding upon this Court but he does not seem to have appellate that the Full Bench case refers to the, Judicial Committee in the Pepsu State and not the Judicial Committee of the former Patlala What'' has been held in the Full Bench case is that. the decisions of the Pepsu Judicial Committee are binding on the High Court unless the Supreme Court lays down different law, but, as pointed out, that'' case does not decide that the decisions of the Judicial Committee of the former '' Patiala" State are binding upon this High Court, and in my opinion they are not; at the most those decisions, are only persuasive precedents. The position with regard to the decisions of the Judicial Committees of the remaining former Covenanting States is apparently the same.

When it is the requirement of law that a person is to prove the non-existence of facts, then the burden of proving such facts lies upon him and there is no reason that he is to be excused of that burden. The learned President appears to think that "a person ought not ordinarily be called upon to prove the non-existence of facts in the first instance", but if under the law it is he who has to prove the non-existence of facts, then he cannot be absolved of that burden.

In ''Abrath v. North Eastern Railway Co. (1883) 11 QBD 440 (F), the action was for malicious prosecution. The Plaintiff had to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge inconsistent with the existence of reasonable and probable cause; and lastly, that the proceedings of which he complains were initiated in a malicious spirit that is, from an indirect and improper motive, and not in furtherance of Justice. To prove the second proposition two mi-nor propositions had to be proved and they were- (a) that the Defendant-company did not take reasonable care to inform themselves of the true tact''s of the case, and(b) that they did not honestly believe in the case which they laid before the Magistrate. The case was tried by Cave J., with a jury, and the-learned judge directed the jury that it lay on the'' Plaintiff to prove the two minor propositions in order to prove the second major proposition. The verdict of the jury was for the Defendants. In appeal it was contended that the burden of proof of the minor propositions, which were raised by the Defendants, was upon the Defendants as the matters were specially within their knowledge, and it was not for the Plaintiff to prove the negative. At p. 449 of the report Brett, M.R., observed- It is admitted that the burden of proof of the whole lies upon the Plaintiff, and that the burden of proof of each of the major divisions lies upon him; but it is said that if in any one of those three propositions a minor proposition is raised which must be proved in order to support the proposition in question, then the burden of proof is not upon the Plaintiff.

Now dt seems to me that whenever a claim or defense consists of several necessary parts, he on whom the burden of proof of the whole rests, has also on him the burden of proof of each of those necessary parts".

And at page 457 Bowen L.J., observed

If the assertion of a negative is an essential part of the Plaintiff''s case, the proof of the assertion still rests upon the Plaintiff. The terms ''negative'' and ''affirmative'' are after all relative and not absolute. In dealing with a question of negligence, that term may be considered either as negative or affirmative according to the definition adopted in measuring the duty which is neglected. Wherever a, person asserts affirmatively as part of his case that a certain state of facts is present or is absent, or that a particular thing is insufficient for a particular purpose, that is an averment which he is bound to prove positively.

It has been said that an exception exists in those cases where the facts lie peculiarly within the knowledge of the opposite party. The counsel for the Plaintiff have not gone the length of contending that in all those cases the onus shifts, and that the person within whose knowledge the truth peculiarly lies is bound to prove or disprove the matter in dispute. I think a proposition of that kind cannot be maintained,

This authority clarifies that where a party to succeed has to prove the negative, the burden lies upon him to prove the negative state of facts. This authority appears not to have been brought to the notice of the learned President. It has been followed in India in - Hemchandra Ganguli Vs. Matilal Ganguli,

I am, therefore, of the opinion that in the ease of an alienee, who is himself the antece dent creditor and who has to prove the justness of his debt, the onus of proof lies upon him to prove both the positive and the negative aspects of the definition of ''just debt''. In discharging that bur den he has to show that the debt.

So that no separate issue as regards the character of the'' alienor, as settled by the learned Additional District Judge in the present case, is necessary.

The learned Counsel for the Defendants-Respondents has, however, strenuously urged that the Defendants-Respondents have been misled by the dictum in - ''Hardwari Singh v. Dewan Singh'', (A), and therefore they have not led proper evidence with regard to the character of the alienor in this case. There appears to be substance in this contention and in the circumstances of the case it would be manifestly unjust not to give the Defendants-Respondents an opportunity to lead evidence on the matter.

The learned Counsel for the Plaintiff says that the Plaintiff has led all his evidence on the question, but should at least be given an opportunity to produce evidence in rebuttal to that of the opposite party. This is also reasonable. I consider it just to allow the Defendants-Respondents to pro- duce ''evidence in the first appeal under Order 41, Rule 27, Code of Civil Procedure. The first appellate Court has already sent back the case to the lower Court and thus in the circumstances the learned-trial "Judge will"'' take evidence of the Defendants-Respondents, and also of the Plaintiff in rebuttal, on the question according to Rule 28 of Order 41.

It has already been shown that the decree of the first appellate Court is not justified, upon any consideration and there was no occasion for the learned first appellate Court to set aside the decree of the trial Court and to order readmission of the case. In this view the judgment and decree of the first appellate Court need modification. The decree is set aside and the direction is that the appeal of the Defendants shall be taken to have continued pending in the first appellate Court.

The case shall be taken to have been remitted to the trial Court for taking of the evidence on the question as suggested above under Rule 28 of Order 41 After the trial Court has taken the evidence, it shall remit the same to the appellate Court, which shall then proceed to dispose of the appeal on merits. This appeal succeeds with the directions and modifications as above. There is no order as regards costs. The parties, through their counsel are directed to appear in the trial Court on 26-5-1955.