http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: PARES NATH THAKUR

       Vs.

RESPONDENT: SMT.  MOHANI DASI AND OTHERS

DATE OF JUDGMENT: 12/05/1959

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1959 AIR 1204            1960 SCR  (1) 271

ACT:        Execution-Deity’s  claim  based on deed of trust  upheld  by        executing court-Suit by decyeeholder-Deed, if fraudulent  in        character-Burden of Proof-Concuyyent findings of  lact-Power        of  High Court in Second Appeal-Code of Civil  Procedure  O.        21, Yr. 60, 63.

HEADNOTE:        The respondents as plaintiffs brought the suit, out of which        the present appeal arises, under the provisions of 0. 21, r.        63 Of the Code of Civil Procedure for a declaration that the        deed of trust executed in favour of the appellant deity  was        a sham and fictitious document and the properties covered by        it  were liable to sold in execution of their  decree.   The        courts  below  dismissed  the suit but the  High  Court,  by        misplacing  the  onus on the deity to prove its  title,  set        aside  the  concurrent  findings, of the  Courts  below  and        decreed the respondents’ suit.        Held,  that  the  question  whether  a  trust  deed  was   a        fictitious  document  or not was essentially a  question  of        fact.        Meenakshi Mills, Madurai v. The Commissioner of  Income-tax,        Madras, [1956] S.C.R. 691, referred to.        It  was  well settled by a long series of decisions  of  the        Privy  Council and of this Court that the High  Court  could        not,  in  a second appeal, interfere with findings  of  fact        arrived at by the Courts below" however erroneous they might        be.        Even  assuming  that  it was open to the High  Court  to  go        behind  the  findings  of fact, it was  clear  that  it  had        completely misdirected itself on the question of onus.  In a        suit, such as the present, where the plaintiff sought for  a        declaration that a document solemnly executed and registered        was a fictitious one, the burden lay heavily on him to prove        that it was so and that burden became still more heavy where        he  sought a declaration that an order passed by  the  court        upholding a claim of a third party under 0. 21, r. 60 of the        Code was erroneous.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

JUDGMENT:        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 655 of 1957.        Appeal  by special leave from the judgment and decree  dated        April  22, 1954, of the Orissa High Court in  Second  Appeal        No.  174  of 1948, arising out of the judgement  and  decree        dated  January 12, 1948, of the District Judge, Cuttack,  in        Munsif  Appeal  No.  309 of 1946 against  the  judgment  and        decree, of the second        272        Munsif,  Cuttack, dated August 31, 1946, in Title  Suit  No.        120 of 1943.        A.   V.  Viswanatha  Sastri and B. P.  Maheshwari,  for  the        appellant.        S.   P. Sinha and R. Patnaik, for respondents, Nos. 2, 3 and        4.        1959.  May 12.  The Judgment of the Court was delivered by        SIN]HA  J.-This appeal by special leave is directed  against        the judgment and decree dated April 27, 1954, of the  Orissa        High   Court,  passed  on  second  appeal,   reversing   the        concurrent  decisions  of the courts below,  dismissing  the        plaintiffs’ suit instituted under the provisions of r. 63 of        0.  21 of the Code of Civil Procedure (hereinafter  referred        to  as  I the Code’).  The suit had been instituted  by  the        respondents  for a declaration that the deed of trust  dated        December  15, 1926, in favour of the first defendant,  Pares        Nath  Thakur, installed in the Digamber Jain Temple, in  the        town  of Cuttack in Orissa, was sham and fraudulent and  had        not  been  meant to be acted upon, and that  the  properties        covered  by  the  said  deed  of  trust,,  belonged  to  the        defendants  2 to 4, and were liable to be sold in  execution        of  the  decree  obtained  by  the  plaintiffs  against  the        defendants-second party (defendants 2 to 4).  The deity, the        first  defendant,  was sued under the  guardianship  of  the        trustees.        The facts of this case, leading upto 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        mortgagee’s  interest in respect of a simple  mortgage  bond        dated  April  14,  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 June 11, 1935, which was made final on        October, 13, 1936.  In due course, the mortgaged  properties        were  sold and purchased by the decree-holders, but  as  the        decrement dues were not satisfied by the sale                                    273        of  the  mortgage properties, a money  decree  was  obtained        against  the defendants 2 to 4 for Rs. 11,000 odd, on  April        29,  1940.  The disputed properties covered by the  deed  of        trust  aforesaid,  had  been attached  before  judgment,  on        September  23,  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. 63 of 0. 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 0. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

      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 subjectmatter 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.        274        It  is  manifest that the question to be determined  by  the        High  Court  on the second appeal, was  essentially  one  of        fact.   That the High Court was cognizant of this aspect  of        the case, appears from the following observation with  which        the decision of the High Court begins :-        " In second appeal the substantial point urged before us  is        whether  the  evidence,  both oral  and  documentary,  would        warrant  an inference that the properties had in  fact  been        dedicated to the deity." It is well-settled by a long series        of decisions of the Judicial Committee of the Privy  Council        and  of  this Court, that a High Court,  on  second  appeal,        cannot  go  into questions of fact,  however  erroneous  the        findings of fact recorded by the courts of fact, may be.  It        is  not  necessary  to cite those  decisions.   Indeed,  the        learned  counsel for the plaintiff-respondents did  not  and        could  not contend that the High Court was competent  to  go        behind the findings of fact concurrently recorded by the two        courts of fact.  The High Court then set out to examine  the        evidence’, both oral and documentary, and after an elaborate        examination  of the large volume of evidence adduced by  the        parties, recorded the finding that:        " defendant No. 1 has failed to prove his title and that the        plaintiffs  are  entitled to have the suit  properties  sold        with  a view to satisfy the decree obtained by them  against        the judgment-debtors."        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 fact.        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 defandant, the  deity.   This        becomes  clear  from the following observation of  the  High        Court                                    276        "  Judged by these principles Ext.  F, the deed of trust  by        itself  creates no endowment ; and it is necessary  for  the        defendants  to show by evidence aliunde that there had  been        an  existing endowment in favour of this particular idol  to        which the description ’Devottar’ can be applied."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

      Further  down,  the High Court observed  as  follows,  after        referring   to  what  it  characterised  as  "   innumerable        decisions " : r        "  Applying the above principles to the facts of this  case,        we  find that no evidence has been given with regard to  the        formal dedication of the properties to the deity except what        is  recited  in  Ex.  F. This  recital  is  insufficient  to        support  a finding that there had been a real dedication  of        these  properties."         With  due  respect to the High Court, it must  be  remarked        that  it appears to have lost sight of  the  wellestablished        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 proceeded 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  fictitious.        The  two  courts  of fact had  discussed  all  the  relevant        evidence in great detail, and had agreed in finding that the        plaintiffs  had  failed to prove their case.   The  question        which  the  courts  below decided and  which  was  the  only        question  in controversy before the High Court; was  whether        the  trust  deed  was  a  fictitious  transaction.   Such  a        question is essentially one of fact., See the        276        latest  decision  of  this Court in the  case  of  Meenakshi        Hills,  Madurai  v. The Commissioner of  Income-tax.  Madras        (1), where it has been laid down, inter alia, that a finding        ˜of  fact,  even when it is an inference  from  other  facts        found  on  evidence,  is not a question of  law,  except  in        certain  specified cases.  The 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  fact.   The  High        court was considerably influenced by certain recitals in the        deed, as will appear from the following observations :-        "  Above all, there is a further significant  recital  which        appears to have escaped the notice of both the courts below,        and that is that the ’trustees can dispose of the properties        if  ever  they think it necessary, and may  also  appoint  a        Pujari for conducting the daily worship of the deity’."        In making these observations, the High Court has  completely        missed  the  real significance of  the  following  paragraph        towards the end of the deed:-        " Be it stated that if it will be required at any time,  you        the  trustees according to your unanimous opinion will  sell        the  property  situated  at Mouzas  Baramunda,  Siripur  and        Nuapalli etc., in Killa Khurda and Zilla Dandimal out of the        immovable  properties  described in schedule ’kha’  of  this        deed  and will appoint any servant etc., for the purpose  of        worship."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

      It  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, were the deity is located.  Hence, in  the        first instance, the specific power of        (1)  [1956] S. C. R. 691.                                    277        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 upon.        The High Court then examined in detail the evidence of D. W.        3, who, on its own findings, is a respectable person.  About        this witness, the High Court observed:        " Undoubtedly, the testimony of this witness is entitled  to        great  respect  and  the courts below have  accepted  it  as        reliable."        While  dealing with the evidence of this witness,  the  High        Court proceeded to make the further remarks:        "  We are here concerned with the determination of the  sole        question as to whether there has, in fact, been a dedication        in favour of the deity.  No witness has been called to prove        the gift of any single item of the properties in suit.  Even        the  evidence  relating to the installation of the  idol  is        extremely  obscure." there again, the High Court appears  to        have  overlooked the evidence of D. W. 1,  Kunjabahari  Lal,        who has stated as follows:-         The disputed shop house belongs to the Thakur.  In 1870  or        1872, one person probably of the name of Maniklal gifted the        disputed shop house to the Thakur."        While  dealing with the question whether the deed  of  trust        had been given effect to, the High Court made the  following        significant observations:-        " There is no evidence of the appropriation of the rents and        profits  of the properties upto the year 1938, and even  the        accounts,  which are alleged to have been  maintained,  have        not been produced."        The 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 claimant.   The  following        statement in his evidence, which was marked as ext.  Mat the        trial because the witness was dead, is pertinent:-        278        "I look after the Thakur’s affair.  I am a Panchayat  member        of the Thakur.  I also perform its Puja and get a pay of Rs.        12 for it.  Since 1934, I work as Thakur’s Pujhari, and look        after  the Thakur’s land since 1936.  I  regularly  maintain        accounts.   These  accounts  have  been  filed  in  the  2nd        Munsif’s Court in connection with Suit No. 94 of 1941.   The        disputed property relates to lots I and 2 of the trust deed.        Plot 216 is Thakur’s temple.  It is a twostoreyed building."        The  witness had been cross-examined by the  plaintiffs  who        were  opposing the claim, and in his  cross-examination,  it        was  brought out that the accounts which the witness  stated        had  been  filed in the 2nd Munsif’s  Court,  also  included        expenditure  made in the temple.  In this connection, it  is        noteworthy  that  the  plaintiffs had not  called  upon  the        contesting  defendant  to  produce  those  account-books  in        respect  of  the properties in dispute.  If that  party  had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

      been  called  upon  to produce those documents  and  it  had        failed to produce them, an adverse inference might have been        permissible  to a court of fact.  But apparently,  the  High        Court  was inclined, on the second appeal, to draw  such  an        adverse inference even though no foundation had been laid at        the  trial  for justifying such an inference.  To  the  same        effect, are the following observations of the High Court:-        "  On the other hand, the other facts and  circumstances  of        the case raise a strong presumption that there had, in fact,        been no such endowment."        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.        For the reasons aforesaid, it is clear that the judgment  of        the  High  Court  cannot  be  supported.   The  appeal   is,        accordingly,  allowed  with costs throughout, and  the  suit        will stand dismissed.        Appeal allowed.                                    279