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Allahabad High Court
Bhuri vs Namnhi Jan And Karam Ali Khan on 24 April, 1908
Equivalent citations: (1908) ILR 30 All 321
Bench: J Stanley, K Husein


John Stanley, C.J. and Karamat Husein, J.

1. This appeal arises under the following circumstances. The defendant Karam Ali Khan had two wives, namely, Musammat Bhuri and Musammat Nannhi Jan. Musammat Nannhi Jan on the 4th August 1905 instituted a suit against her husband for the recovery of her dower, and on the 24th of November 1905 obtained a decree. On the 2nd of August 1905, that is, two days before the institution of Nannhi Jan’s suit, Karam Ali Khan transferred to his wife Musammat Bhuri certain property ostensibly in satisfaction of a portion of her dower debt. Musammat Nannhi Jan proceeded to execute her decree and attached the property which was transferred to Musammat Bhuri. Thereupon Musammat Bhuri filed an objection, but her objection was disallowed, and thereupon she instituted the suit out of which this appeal has arisen under Section 283 of the Code of Civil Procedure.

2. The first Court dismissed the suit, but upon appeal the learned District Judge reversed the decision of the Court below and decreed the plaintiff’s claim.

3. The main question which has been discussed before us is whether or not the learned District Judge rightly laid the burden of proof on the defendant Musammat Nannhi Jan. According to his judgment he found, in agreement with the Court below, that the oral evidence was valueless, and held that the decision of the case turned on the amount of value to be placed upon the deed of sale in favour of Musammat Bhuri. Then he gays: “The burden of proof was upon the defendant respondent Musammat Nannhi Jan to prove that the deed had been executed fictitiously and collusively. She did absolutely nothing to satisfy this burden.” And later on he observes: “Musammat Nannhi Jan having absolutely failed to discharge the burden of proof on her to show that the sale deed was executed fraudulently, fictitiously and collusively, I find that the deed of sale in question is a genuine document.” It is contended that the learned District Judge regarded the case from an entirely wrong standpoint and that the trial of the case was wholly unsatisfactory. The important fact to bear in mind is that Musammat Bhuri filed an objection to the attachment and to the sale of the property which had been transferred to her and that her objection had been disallowed. In consequence of this it was necessary for her to institute the suit. It appears to us to be well settled, so far at all events as this Court is concerned, that a plaintiff coming into Court under such circumstances is bound to Jay before the Court some evidence to satisfy the Court that the document under which she claims represents a bond fide and genuine transaction, and that the burden does not lie upon the defendant in the first instance to give evidence in proof of the fraudulent and collusive nature of such document. The learned District Judge appears to us to have laid the burden of proof upon the wrong party. In the case of Tulshi Rai v. Ram Das Weekly Notes 1887, p. 71 Straight and Tyrrell, JJ., held that under similar circumstances the burden rested upon the plaintiffs who were impeaching the disallowance of their objection filed in the execution department to establish by clear and satisfactory proof that the property attached was their property at the date of the attachment and not the property of the judgment-debtor. This decision was followed in Afzal Begam v. Muhammad Obaidat-ullah Khan Weekly Notes 1899, p. 220 and also in the case of Ram Nath v. Bindraban (1896) I.L.R. 18 All. 360. It also has the support of the case of Govind Atmaram v. Santai (1887) I.L.R. 12 Bom. 270, which is a case on all fours with the case before us. In that case Sargent, C.J. observes: “The defendant had obtained an order maintaining his attachment, and it was incumbent upon the plaintiff who impugns that order by the present suit to prove her case. For this purpose it would be necessary for the plaintiff to prove the payment of the purchase money and that she had been since in possession.” These cases establish” the proposition that a party intervening, as the plaintiff did in this case, in the execution department and failing in his objections to an attachment and consequently being obliged to bring a suit under Section 283 must give prima facie evidence to establish the genuineness of the document upon which he relies. One case was quoted to us in which a different view was taken. That was the case of Suba Bibi v. Balgobind Das (1886) I.L.R. 8 All. 178. In that case Straight and Brodhurst, JJ., laid the burden upon the defendant. This decision loses weight from the fact that in the later case Straight, J., resiled from the position which he took up in it and took part in the decision of the case of Ram Nath v. Bindraban, which we have cited. Now the learned District Judge has considered the evidence from an entirely wrong standpoint, and it is impossible for us to accept his conclusion on the question whether the sale to the plaintiff was a real transaction or not, in view of the course adopted at the trial. We therefore, as was done in Govind Atmaram v. Santai, set aside the decree and remand the case to the lower appellate Court for re-trial. We accordingly remand the case with directions that it be replaced in the file of pending appeals in its proper number and be disposed of on the merits, regard being had to the directions which we have given above. The costs here and hitherto will abide the event.

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