Case: Pares Nath Thakur Vs. Smt. Mohani Dasi And Others

2. The facts of this case, leading up to this appeal, in so far as they are necessary for the determination of this appeal, are as follows: The plaintiffs are the assignees of the mortgagees interest in respect of a simple mortgage bond dated 14-4-1927, executed by the predecessors-in-interest of the defendants-second party aforesaid. The mortgagees instituted a suit in the court of the subordinate Judge at Cuttack to enforce the mortgage. They obtained a preliminary decree on 11-6-1935, which was made final on 13-10-1936. In due course, the mortgaged properties were sold and purchased by the decree-holders, but as the decretal dues were not satisfied by the sale of the mortgage properties, a money decree was obtained against the defendants 2 to 4 for Rs. 11,000 odd, on 29-4-1940. The disputed properties covered by the deed of trust aforesaid, had been attached before judgment, on 23-9-1934. When the decree-holder proceeded against the properties covered by the deed of trust, the defendant-first party, through the trustees, preferred a claim to the properties under R. 58 of O. 21 of the Code, claiming the properties as belonging to the deity and not to the judgment-debtors. The executing court, after holding an inquiry under the Code, passed an order in favour of the claimant. Hence, the plaintiffs instituted the suit under the provisions of R. 63 of O. 21 of the Code, alleging that the trust deed aforesaid, by virtue of which the claim had been allowed by the court, as aforesaid, was a sham and fraudulent transaction which did not convey any title to the property covered by the deed of trust and the subject-matter of the suit. The two courts of fact agreed in holding that there was an idol in fact, and that the deed of dedication was effective to transfer title from the donors to the donee, and that the donors, who were the predecessors-in-title of the defendants-second party, had completely divested themselves of any interest in the properties which were the subject-matter of the deed of trust. It was also found that the disputed properties did not belong to the family of the mortgagors, and that the deed of trust had been executed only with a view to putting the title to the property beyond all doubt or dispute. The plaintiffs, being unsuccessful in the first two courts, preferred a second appeal to the High Court of Judicature at Cuttack. The appeal was heard by a Division Bench, consisting of Panigrahi, C. J., and Narasimham, J. The judgment of the Court was delivered by the learned Chief Justice who set aside the decisions of the Courts below, and allowed the appeal with costs throughout. As the defendant-first party failed to obtain from the High Court the necessary leave to appeal to this Court, it moved this Court for special leave which was granted. Hence, this appeal.

Reasoning:
In our opinion, the High Court has completely misdirected itself both in law and on facts, as will presently appear, even assuming that it was open to it to go behind findings of facts4. In the first place, the High Court has misplaced the onus of proof, as will appear from the conclusion just quoted above. The onus of proof loses much of its importance where both the parties have adduced their evidence.But the High Court seems to have laid some emphasis on onus of proof, with a view to examining for itself whether that onus had been discharged by the contesting defendant, the deityWith due respect to the High Court, it must be remarked that it appears to have lost sight of the well-established rule applicable to suits of the kind it was dealing with,that the burden of proof is heavy on a plaintiff who sues for a declaration of a document solemnly executed and registered, as a fictitious transaction. The burden becomes doubly heavy when the plaintiff seeks to set aside the order of the civil court, passed in execution proceedings, upholding the claim of a third party to a property sought to be proceed against in execution. The plaintiff, who seeks to get rid of the effect of the adverse order against him, has to show affirmatively that the order passed on due inquiry by the executing court, was erroneous.Hence, in this case, apart from the fact that the respondents were the plaintiffs, there was an initial heavy burden on them not only to show that the order of the civil court in the claim case was erroneous, but also that the deed of trust relied upon by the contesting defendant was fictitiousThe case before us certainly is not one of those specified cases.These observations are sufficient completely to displace the decision of the High Court, but we shall examine the reasons of the High Court for setting aside the concurrent findings of fact of the courts below, to see whether the High Court was right in its conclusions, assuming all the time that the High Court was competent to go into those questions of factIt will be noticed from the above-quoted provision in the deed that the trustees were specifically empowered by the deed to alienate certain specific properties which, according to the evidence, were very inconveniently situated. The properties in dispute in this case are not in that category. The properties are land and house in the town of Cuttack, where the deity is located. Hence, in the first instance, the specific power of alienation granted to the trustees, did not apply to the properties in dispute. Secondly, such a provision in a deed of trust is not wholly out of place, which could lend itself to the inference that the document was not intended to be acted uponHere again, the High Court appears to have overlooked the evidence of D. W. 1, Kunjabehari LalThe High Court, here again, appears to have overlooked some material evidence, bearing on this aspect of the matter. Particularly significant is the evidence of one Dhaneswar Lal who was examined by the executing court in the claim case aforesaid, on behalf of the claimant7. It is clear, therefore, that the decision of the High Court on the second appeal, reversing the concurrent findings of fact of the two courts below, is based upon inferences drawn from evidence oral and documentary, after misplacing the onus of proof. This, the High Court was not entitled to do. Besides, as we have already indicated, even on the merits, the findings of the High Court are open to serious criticism and must be held to be unsound