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Burden of Proof –
Nuances on Initial Burden and Shifting Onus of Proof

(By Saji Koduvath, Advocate, Kottayam)

Key Takeaways

1. Burden of proof is always static and does not shift; onus of proof shifts.

2. Burden of proof it is upon whom who suffers, if no evidence on the
question in dispute.

3. Burden of proof would be on the party who asserts the affirmative of the
issue.

4. Burden of proof loses significance if both parties adduced evidence.

5. Onus of proof ‘shifts’ on adducing adequate evidence by the party concerned.

6. Adverse inference is drawn when a party withholds documents, even if he has no burden.

7. Adverse inference is drawn if a party does not examine himself: But, it is Not an Invariable Rule.

8. A Plaintiff has to win the title-suit on his evidence; not on the weakness
 of the adversary.

9. Adverse inference is taken after considering (a) pleadings, (b) relevancy
of the withheld evidence and (c) burden of proof.

10.Presumption and adverse inference for non-production of evidence are always optional.

11.Suit on title – If plaintiff discharges his burden by showing high degree of probability (that the title vests in him), onus shifts.

12.If the defendant fails to release the onus shifted, the burden on plaintiff shall stand discharged (and the title with the plaintiff is inferred).

13.If the defendant establishes his right to continue possession as lessee, licencee, mortgagee etc., (honouring title of the plaintiff) the plaintiff’s suit for possession will fail.

Abstract – Primary Principles on Burden of Proof

1. Burden of proof is static

• The burden of proof is always static and does not shift.
• Burden of proof lies on the person, who would fail if no evidence is adduced on either side.
• Ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.

2.Burden of proof loses its importance –

•    (a) if both parties adduced evidence
•    (b) if there is sufficient evidence on an issue.
•    In such a situation, it remains academic:
•    Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi, 49 IA 286 303:
   

AIR 1922 PC 292 (referred to in Seturatnam Aiyar v. Venkatachala Gounden (1919) 47IA 76, and Kumbham Lakshmanna v. Tangirala Venkateswarlu (AIR 1949 PC 278);

•    Sushil Kumar v. Rakesh Kumar (2004 (1) KLT OnLine 1241 (SC)).
•    Raghunathi v. Raju Ramappa Shetty (AIR 1991 SC 1040);
•    Mohd. Abdullah Azam Khan v. Nawab Kazim Ali Khan (1976) 3 SCC 32).

3. Burden of proof gets significance

•    (a) when no evidence at all on the question in dispute.
•   (b) when a person on whom the burden of proof lay, failed to adduce any evidence altogether.
• (c) when no adequate evidence so as to shift onus, or
• (d) when best evidence is withheld.
• (e) when Court cannot “Make Up its Mind” from the evidence adduced (Kumbhan Lakshmanna v. Tangirala Venkateswarlu (AIR 1949 PC 278).

4. Onus of proof ‘shifts’

•    Onus of proof ‘shifts’ on adducing ‘satisfactory’ (or high degree of) evidence by the party upon whom the onus lies, and thus discharging his burden.

‘Onus Probandi’and Section 106 of the Evidence Act

The Latin maxim, Onus Probandi, means ‘burden of proof’.  This maxim generally conveys the rule and impression that one who asserts a positive fact has to prove it.

•    Section 101 to 103 of the Indian Evidence Act, 1872, deal with the burden of proof in general.

      Section 104 to 106 deal with specific situations.

In an election case, referring Sections 106 and S.114 of the Evidence Act, the Supreme Court, observed in Puneet Rai v. Dinesh Chaudhary (2003) 8 SCC 204), that the onus was on the respondent to prove that he belongs to ‘Passi’ community which falls in the Schedule caste category.

In  Sushil Kumar v. Rakesh Kumar (2004 (1) KLT OnLine 1241 (SC) the Supreme Court
found that the burden of proving the age of the elected candidate (above 25 years) was upon him. The Apex Court held as under:

•    “28. It is no doubt true that the burden of proof to show that a candidate who was disqualified as on the date of the nomination would be on the election petitioner.
•    29. It is also true that the initial burden of proof, that nomination paper of an elected
   

candidate has wrongly been accepted, is on the election petitioner.

•   30. In terms of Section 103 of the Indian Evidence Act, however, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
•    31. Furthermore, in relation to certain matters, the fact being within the special knowledge of the respondent, the burden to prove the same would be on him in terms of Section 106 of the Indian Evidence Act. However, the question as to whether the burden to prove a particular matter is on the plaintiff or the defendant would depend upon the nature of the dispute.
•    32. The age of a person, in an election petition has to be determined not only on the basis of the materials placed on records but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of Section 106 of the Evidence Act.
•   It is also trite that when both parties have adduced evidence, the question of onus of proof becomes academic (See: Union of India & Ors. v. Sugauli Sugar Works (P) Ltd. (1976) 3 SCC 32,(para.14) and M/s Cox and Kines (Azents) Ltd. v. Their Workmen & Ors. (AIR 1977 SC 1666, (para.36)). Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established.”

‘Onus Probandi’ and Rule of ‘Best Evidence’

Rule of ‘Best Evidence’ requires a party to suit to produce all material evidence with him. If he fails to produce the best evidence, then illustration ‘g’ of Section 114 Evidence Act allows the court to take the presumption that, if that evidence had been produced, it would have been unfavourable to him. In Dharampal v. State of Haryana (P & H., 2020) it is observed as under:

“20. Chapter VII in Part-Ill of the Evidence Act, 1872 examines the burden of proof and onus of proof or “onus probandi”. Section 101 lays down that whosoever, wants the court to give judgment as to any legal right or liability dependent on the existence of fact, which he asserts, must prove that those facts exist. However, Section 106 provides that any fact which is essentially within the knowledge of any person, the burden of proving that fact is upon him. Illustration ‘b’ to Section 106 specifically provides that if A is charged with travelling on a railway train without ticket, the burden of proving that he had bought a ticket is on the person who was found travelling. Still further, illustration ‘g’ of Section 114 require production of best evidence before the Court/authority. It lays down that the evidence which could be but is not produced, would be deemed to be unfavourable to the person who holds it from the Court/authority. It means that if a person fails to produce the best evidence which he could produce then the presumption would be that the aforesaid evidence, if had been produced, would be unfavourable to the person, who withholds it.”

Suit on Title – If Plaintiff Shows High Degree of Probability, Onus Shifts

In R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami (2004 (1) KLT OnLine 1227 (SC)
the law is stated in the following terms :

“29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A.Raghavamma v. A.Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.” (Quoted in: Anil Rishi v. Gurbaksh Singh
(2006 (2) KLT SN 77 (C.No.95) SC) City Municipal Council, Bhalki v. Gurappa (2015 (4) KLT Suppl.88 (SC).

In Smriti Debbarma v. Prabha Ranjan Debbarma (2023 KLT OnLine 1065 (SC)) it is held by our Apex Court as under:

• “31. The burden of proof

[See Paragraph 19 inAnil Rishi v. Gurbaksh Singh (2006 (2) KLT SN 77 (C.No.95) SC)
where the expression ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others].

• to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief [See Addagada Raghavamma & Anr. v. Addagada Chenchamma & Anr.(1964 KLT OnLine 1225 (SC). This is mandated in terms of Section 101).

[Section 101: Burden of Proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person].

• of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions,[See Ss. 103, 104 and 105 of the Evidence Act]. but in the factual background of the present case, the general principle is applicable. In terms of Section 102

[Section 102: On whom the burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.]

•   of the Evidence Act, if both parties fail to adduce evidence, the suit must fail [SeeAnil Rishi v. Gurbaksh Singh(2006 (2) KLT SN 77 (C.No. 95) SC = (2006) 5 SCC 558).

Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.[See R.V.E.Venkatachala Gounder v. ArulmiguViswesaraswami V.P.Temple & Anr.(2004 (1) KLT OnLine 1227 (SC)]. The weakness of the defence cannot be a justification to decree the suit. [SeeUnion of India & Ors. v. Vasavi Co-operative Housing Society Limited & Ors. (2014 (1) KLT SN 55 (C.No.77) SC), The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes (dead) Through LRs. & Ors. v. K.V.P. Shastri (dead) Through LRs. & Ors. (2013 (4) KLT OnLine 1135 (SC).

•    Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”

No pleading; but, Issue Covered by Implication – Evidence can be relied on

The Supreme Court, in the matter of Standard Chartered Bank v. Andhra Bank Financial Services Ltd. (2006 (3) KLT OnLine 1117 (SC)) held that if parties know that a plea was involved in trial and if such a plea is covered by issue by implication then in such a case mere fact that the plea was not expressly taken in pleading would not necessary disentitle a party from relying upon it if it is satisfactorily proved by evidence.

Adverse Inference Drawn (Even if no burden), if one Withholds Documents

The Supreme Court observed in Gopal Krishnaji Ketkar v. Mahomed Haji Latif (AIR 1968 SC 1413, as under:

“Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue.”

Plaintiff Fails to Establish ‘Probability‘ and Defendant ‘Withholds Documents‘

From R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami (2004 (1) KLT OnLine 1227 (SC)) the law is clear –

•   in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.

From Gopal Krishnaji Ketkar v. Mahomed Haji Latif (AIR 1968 SC 1413), it is also clear –

•    Even if a party to the suit has no burden, the Court can draw an adverse inference if he withholds important documents in his possession.

From the above, it is definite that, in a proper case, if the defendant who withholds important document (admittedly) in his possession, the court can take the adverse presumption against the defendant, even if the plaintiff (who has the burden of proof or who is bound to create a high degree of probability) did not adduce any evidence.

Party Does Not Examine - Adverse Inference if only he is a Material Witness

In Bijoy Kumar Karnani v. Lahori Ram Prasher (AIR 1973 Cal.465), the High Court considered the argument as to non-examination of the plaintiff as a witness in the light of Section 114, illustration (g) of the Evidence Act which provides that the Court may presume that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. The court pointed out that the plaintiff was not a material witness as to the disputed facts, sans admitted facts. Citing Gurbakhsh Singh v. Gurdial Singh (AIR 1927 PC 230), it was observed that the argument of the defendant would be apt if only the plaintiff was a material witness, as stated by the  Privy Council as under:

•    “The true object to be achieved by a Court of Justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected to all its particulars to cross-examination.”

Adverse Inference – if a Party Not Examine Himself: Not an Invariable Rule

In Iswar Bhai C.Patel v. Harihar Behera (1999 (1) KLT OnLine  975 (SC)) the Supreme Court observed as under:

•    “17…..Having not entered into the witness-­box and having not presented himself for cross-­examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872.” (Quoted in: Iqbal Basith v. N.Subbalakshmi (2021) 2 SCC 718).

The Supreme Court also observed in Vidhyadhar v. Manikrao (1999 (1) KLT OnLine  928 (SC) as under:

“Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”

In Janki Vashdeo Bhojwani v. Indusind Bank Ltd. (2005 (2) KLT  265 (SC) our Apex Court followed Vidhyadhar v. Manikrao, and held as under:

“No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.”

But, it is not an invariable principle. Two contra-situations are pointed out by Kerala High Court:

1. It is applied only against the party on whom the burden of proof lies;

2. It is not applicable where there is no much scope for any oral evidence.

In Mammu Haji and Company v. Vasanthalakshmi (2014 (4) KLT SN 58 (C.No.70) that this
proposition of law laid down by the Apex Court applies only in cases where the party on whom the burden of proof lies withholds himself from adducing evidence. It is held as under:

•   “In short, this decision can be applied against the party on whom the burden of proof lies; but did not adduce evidence. In the instance case, the burden of proof absolutely lies on the defendant who claims protection under S.106 of the Act. Therefore, the non-examination of the plaintiff is not fatal and no adverse inference can be drawn against the plaintiff, where the lease arrangement is admitted as such by the defendant, and the entire burden of proof lies on the defendant.”

In Upendra Rao v. Ammini (2017 (1) KLT 57), the Kerala High Court pointed out that the principle in Vidhyadhar v. Manikrao  (that when a party to a suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, adverse presumption  can be taken) cannot be applied to the facts of a case where there is not much scope for any oral evidence.

In P. Sukumaran v. K.A.Hamza Haji (2014 (4) KLT SN 54 (C.No.65) the Kerala High Court distinguished Vidhyadhar v. Manikrao observing as under

•    “13. InVidhyadhar’s case , the Apex Court was dealing with a case where the first defendant in the suit contended that, the sale deed executed by the second defendant in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction as only ` 500/- was paid as sale consideration to the second defendant. He further claimed that payment of ` 4500/- to the second defendant at his home before the registration of the deed was wholly incorrect. This plea was not supported by the first defendant as he did not enter the witness box. It was in such circumstances, the Apex Court held that, the non-examination of the first defendant, by itself, is enough to reject his claim that the transaction of sale between second defendant and the plaintiff was a bogus transaction.
•    14. But, in the case on hand, the tenancy in respect of the petition schedule building and the rate of rent are not in dispute. When a plea of discharge of rent is set up by the tenant, the burden is upon him to prove that plea of discharge and no adverse inference or a presumption under Section 114(g) of the Evidence Act, 1872, can be drawn against the landlord on his omission to appear as a witness and to state his own case on oath.”

Adverse Inference – When Court cannot “Make Up its Mind”

It is only if the Tribunal or the Court feels it cannot “make up its mind” as to which of the version is true, it will be held that the party on whom the burden lies has not discharged the burden (See Kumbhan Lakshmanna v. Tangirala Venkateswarlu (AIR 1949 PC 278).

This Section (Section 102) shows that the initial burden of proving a prima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. When, after the entire evidence is adduced, thetribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background.” (Quoted in: Dulhin Mahabati Kuer v. Raghunandan Prasad Singh (AIR 1958 Pat.249, Surajbhan Kailash Chand v. Hari Shanker Vashsist (AIR 1976 Del.70, Krishne Gowda v. Ningegowda, ILR 1987 Kar.2883, Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel, 2020-1 GLH 261, Vinod Agrawal v. Bharat Kumar Lathi (ILR  2012 M.P.84).

Burden of Proof Not Relevant when “Both Sides had Adduced Evidence”

In Moran Mar Basselios Catholicos v. Thukalanpaulo Avira (1958 KLT 721 (SC) the Constitutionbench of the Supreme Court held as under:

•    The question of burden of proof at the end of the case when both the parties have adduced their evidence is not of very great importance and the Court has to come to a decision on a consideration of all the materials.

In Kalwa Devadattam v. Union of India (1964 KLT OnLine 1242 (SC) the Supreme Court held as under:

•   “The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue; abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties. ” 

In Arumugham v. Sundarambal (AIR 1999 SC 2216), it has been held as under:

•    “On the question of burden of proof we are of the view that even assuming burden of proof is relevant in the context of the amended provision of Section 100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay, failed to adduce any evidence altogether.”

The Supreme Court, in Anil Rishi v. Gurbaksh Singh (2006 (2) KLT SN 77 (C.No. 95) SC = referring Section 102 of the Evidence Act (The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side), explained ‘burden of proof’ as under:

•    “Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.”

In Raghunathi v. Raju Ramappa Shetty (AIR 1991 SC 1040), it is observed that it is a settled law that once the parties have been permitted to produce evidence in support of their respective cases and it is not their grievance that any evidence was shut out the question of burden of proof loses significance and remains only academic.

It is held by the Supreme Court in Thiruvengada Pillai v. Navaneethammal (2008 (2) KLT 267 (SC), that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the plaintiffs to establish that the document was forged or concocted. It is observed that the party who asserts something has to prove that thing. It is pointed out that when the plaintiff had come to Court alleging that the first defendant had executed an agreement of sale in his favour and when the defendant denied it, the burden was on the plaintiff to prove that the defendant had executed the agreement, and not on the defendant to prove the negative.

In K. Laxmanan v. Thekkayil Padmini (2009 (1) KLT 29 (SC), the Apex Court held that when there were suspicious circumstances regarding the execution of a Will, the onus was on the propounder to explain them to the satisfaction of the Court; and only when such responsibility was discharged, the Court would accept the Will as genuine. It was further observed that even where there were no such pleas, but circumstances gave rise to doubt, it was on the propounder to satisfy the conscience of the Court. These decisions are followed in Joseph John Peter Sandy v. Veronica Thomas Rajkumar (2013 (2) KLT SN 9 (C.No.11) SC.  

The Privy Council inSeturatnam v. Venkatachella (AIR 1920 PC 67), observed that where the parties have led all the evidence and relevant facts were before the court and all that remained for decision was what interference was to be drawn from them, the question of burden of proof was not important. In Chidambara v. Veerama (AIR 1922 PC 292), the Privy Council held that when entire evidence was once before the court, the debate as to onus of proof was purely academic. (See:Legal Heirs of Renushree Lahkar v. Pradip Kumar Lahkar (2018-4 Gau LT 733).

See also:

•    Mohd. Abdullah Azam Khan v. NawabKazim Ali Khan (2023 KLT OnLine 1084 (SC).
•  Standard Chartered Bank v. Andhra Bank Financial Services Ltd.(2006 (3) KLT OnLine 1117 (SC).
•  Union of India v. Sugauli Sugar Works (P) Ltd. (1976) 3 SCC 32).
• Cox and Kines (Azents) Ltd. v. Their Workmen (AIR 1977 SC 1666).

Presumption on a Registered Document – “It is VALIDLY EXECUTED”

• Section 35 in the Registration Act, 1908 says that the Registrar allows registration of a document (i) if only he is satisfied as to the identity of the person who executes the document, and (ii) if the executant admits the execution of the document.
• Presumptions can be invoked in view of the Sec. 58 and 59 Sec. 60 (certificate) of the Registration Act. The presumption of regularity of official acts in Illustration (e) of Section 114 of the Evidence is also attached to a registered deed.
•  In short, the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution –Piara v. Fatnu (AIR 1929 Lah.711).

• Therefore, there is a presumption – registered document is validly executed –
•      Prem Singh v. Birbal(2006 (2) KLT 863 (SC).
•       Abdul Rahim v. Abdul Zabar(2009 (2) KLT SN 88 (C.No.88) SC.
•      Jamila Begum v. Shami Mohd.(2019 (1) KLT OnLine 3072 (SC).
•       Manik Majumder v. Dipak Kumar Saha(2023 (1) KLT SN 58 (C.No.50) SC =      2023 KLT OnLine 1040 (SC).
• A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran (2009 (2) KLT Suppl.589 (SC) = AIR 2009 SC 3293).
• The facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof – Bhagat Ram v. Suresh (2004 (1) KLT OnLine 1206 (SC).

Registered Deeds: Proof of CORRECTNESS drawn, Invoking Presumption

• Besides the presumption on a registered document that it is validly executed, there is also a presumption that the “transaction is a genuine one” (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo (2009 (3) KLT Suppl.866 (SC) = Jamila Begum v. Shami Mohd. (2019 (1) KLT OnLine 3072 (SC) = AIR 2019 SC 72) .

   And, there is a presumption of Correctness also (Majumder v. Dipak Kumar Saha (2023 (1) KLT SN 58 (C.No.50) SC = 2023 KLT OnLine 1040 (SC)  B.V. Nagaratna, J.).
The onus of proof, therefore, would be on the person who questions the same.

Do Presumptions as to VALID EXECUTION & CORRECTNESS Import TRUTH?

Two views emerge on registered documents-

• First, Presumption as to VALID EXECUTION  & CORRECTNESS lead to further (invariable) Presumption as to ‘truth’.
• Second (and more cogent), under Section 114 of the Evidence Act, court may presume the existence of any fact. In most cases, the court will infer ‘truth’ if there is presumption as to VALID EXECUTION  & CORRECTNESS. But, in proper cases,

the court can desist to deduce ‘truth’ despite presumption as to VALID EXECUTION  & CORRECTNESS.

In short, Presumptions as to VALID EXECUTION & CORRECTNESS may Import TRUTH. It may result:

• 1. Shift Burden in Most cases. The party in whom the ‘burden of proof’ rests can rely on ‘registration certificate’ as proof and truth of the contents of the deed.

      The certificate endorsed on a registered deed by the registering officer is a             relevant piece of evidence for proving its execution – Piara v. Fatnu (AIR1929                      Lah.711).

•     It being presumed to be VALID & CORRECT, it further gives a presumption            as to truth of the contents also, under Section 114 Evidence Act (regard being had to the common course of natural events, human conduct etc.)

•       There being presumption as to ‘VALID EXECUTION  & CORRECTNESS’
       and thereby presumption as to truth of the contents also, the onus of proof                is shifted upon the party who challenges the presumption as to truth of the contents.

•  2. No Question of Shifting Burden in certain cases. But, the above proposition is not an invariable rule. If it comes out from the pleadings, documents or issues that the burden is upon the person who produced the registered document to prove its truth, the presumed presumption will not help him.
•      For example – The executant of the registered deed would not have executed  such a deed, in all probabilities (regard being had to the common course of   natural    events, human conduct etc.) as revealed from the pleadings or documents         produced; or, its untrue nature can be (prima facie) ‘judicially noticed’.

Section 114 Evidence Act

Section 114 Evidence Act reads as under:

• “114. Court may presume existence of certain facts —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations ……”

Section 6 of the Hindu Succession Act 30/1956 as Amended in 2005
by Act 39/2005 and Kerala Hindu Joint Family (System) Abolition Act, Act 30/1976 –A Critical Study

(By  P.B. Menon, Advocate, Palakkad)

Under the Hindu Succession Act 1956 the original Section 6 of the Act as interpreted by the courts is to the effect that due to the death of a coparcener, in case he has left behind a female relative specified in Clause 1 of the Schedule,a notional partition takes place as regards the deceased and amongst the rest of the male members no disruption takes place and as such they continue as Hindu Joint Family retaining their coparcenary status. That is what is clearly provided for in reading the plain language too in the Section, without any interpretation. Under the law there are various modes of interpretation and what is held to be the best method of interpretation is not to interpret but read the Section as it is in the statute.

As the result of the Hindu Joint Family (System) Abolition Act passed by the Kerala Government, Kerala Act 30/1976 which is applicable only to Kerala is that the concept of the joint family coparcenery property is put an end to and in coming into force of the Act, all existing male members i.e., coparceners in the said joint family on that date as the result of notional partition and as the result of statutory division among such sharers, become tenants in common or co-owners. Thus  by the statute, the coparcenary is put an end to forever so as to not to  revive that status in future.  Actually it puts an end to the theory of reunion as well under the old pristine Hindu Mitakshara Law. As such division in status is effected by a statute and not as the result of division of status having brought about by the coparceners by issuing a registered notice for partition or even by filing a suit for partition or as the result of a preliminary decree passed in such a suit for partition,wherein under the above circumstances under the old mitakshara law a reunion is possible; but being under a statute that such division has taken place the scope of reunion is lost  and as on that date the members have attained the status of co-owners or tenants in common. The status of coparcenary property is lost forever in the light of statute and that has what was happened to in Kerala i.e., a disruption of the Hindu joint family by bringing about a  statutory notional partition among the members  of the coparcenary. The effect is shares of each are determined as on that date without any future fluctuation as they are tenants in common from that crucial date.

A larger bench of the Hon’ble Supreme Court in order to avoid the conflict between two Division Bench decisions of the Hon’ble Supreme Court reported in Prakash v. Phulavati (2016 (1) KLT SN 7 (C.No.9) SC and Danamma @ Suman Surpur v. Amar (2018 (1) KLT OnLine 3039 (SC) has made an authoritative pronouncement considering the various aspects of pristine Hindu law and the Hindu Succession Act Section 6  and the amended Section 6 of 2005 Act.

The matter involved and considered by the Hon’ble Supreme Court in that case related to a partition suit in which a preliminary decree for partition was already passed on the date  the amendment  came into force of such  i.e., 9.9.2005. The court holds that a partition suit does not stand disposed of by passing a preliminary decree and that the preliminary decree can be amended in order to fully recognize the rights  of a daughter introduced by the amended Section 6. After the passing of the preliminary decree the suit continues till the final decree is passed. If in the interregnum i.e., after passing of the preliminary decree and before the final decree is passed the events and supervening circumstances occur necessitating change in shares there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interest of the parties having regard to the changed situation.

Now let me come to the fundamental principle accepted by the Hon’ble Supreme Court in para 80 and let me quote the same.

We deem it appropriate to refer to the decision Hardeo Rai v. Sakuntala Devi & Ors.(2008 (3) KLT OnLine 1125 (SC))laying down that when an intention is expressed to partition the coparcenary property, the share of each of the coparceners become clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. After  taking  a definite share in the property a coparcener becomes the owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. It was observed for the purpose of assigning one’s interest in the property it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an  intention is expressed to partition the coparcenary property the share of each of the coparceners become clear and ascertainable. Once the share of the coparcener is determined it ceased to be a coparcenary property. The parties in such an event would not possess the property as “joint tenants” but as “tenants in common”. The decision of this court in State Bank of India v. Ghamandi Ram (1969 KLT OnLine 1054 (SC)) is therefore is not applicable to the present case.

It is learnt that this decision of the Hon’ble Supreme Court, support the view that the amendment will apply to Kerala as well. Another view seen expressed at some quarters is unless partition by metes and bounds have not taken place it will apply to Kerala as well. Hence my attempts to pen down my opinion in this connection against such views

Before I proceed to  discuss the effect of Hindu Joint Family (System) Abolition Act, let me refer to a few decisions more as set down below.

In 1938 PC189 it is held that once the shares are defined there is severance of joint status. Merely because there is no physical partition, but decide to live together and enjoy the property in common –cannot lead to an inference that members wanted to retain as tarawad property.

In Gurupad Khandappa Magadum v. Hirabai Khandappa Magdum (1978 KLT OnLine 1007 (SC)) Hon’ble Supreme Court quotes Lord Asquith the famous passage in East End Dwelling Co.Ltd. v. Finsburry Burrough Council which is held to be locus classicus.

If you are bidden to to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, most inevitable have followed from or accompanied it, and if the statute say that you must imagine a certain state of affairs it cannot be interpreted to mean that having done so you must cause or permit your imagination to boggle when it comes the inevitable corollaries of that state of affairs.

In the light of the above, let me attempt to analyse the effect of amendment of Section 6
under Act 39/2005 with reference to the Kerala Hindu Joint Family (System) Abolition
Act 1976.

The Hindu Joint Family (System) Abolition Act, Kerala Act 30/76, Section 4 provides that all members of an undivided Hindu family governed by the Mithakshara Law holding any coparcenary property on the date the Act comes into force shall be deemed to hold it as tenants in common as if a partition had taken place among all the members of that undivided Hindu family. Hence should there be an actual partition by metes and bounds ?
No  if at all, it will only be a partition among co owners not coparceners as shown below.

So when Section 6 as amended by Act 39/2005 came into force on 9.9.2005 there was no coparcenary in existence in Kerala, as  the result of the Kerala Act 30/1976. The main aspect is that the coparcenary in Kerala is put an end to, not by volition among the coparceners or as the result of preliminary decree or final decree in partition suit or by any other mode, but by statutory enactment.

Regarding partition suits I feel there are two types i.e., one as in olden days by a coparcener to get his share separated which may or may not fluctuate by the time a preliminary decree is passed or even after as held by the Hon’ble Supreme Court, before passing a final decree due to intervening circumstances and the other type is when a division in status has already occurred due to the statute by a co owner whose share is definite and certain at the time of filing of the suit and which will never be alterable.

In the said circumstance my considered view, whether acceptable or not is that the decision reported in Yineeta Sharma v. Rakesh Sharma (2020 (4) KLT OnLine 1009 (SC)) by a Larger Bench of the Hon’ble Supreme Court will not be applicable to Kerala and will apply to all other States where coparcenary exists. If we analyse the situation with reference to shares in case coparcenary exists, the share will fluctuate, whereas if such coparcenery is put an end to and the members become co-owners, the shares will be definite and certain on the date they attain division in status by virtue of statute.

Let us view the situation from another angle. A new class of coparceners is created by amended Section 6 Hindu Succession Act but for them to walk in there must be a body coparcenery in existence. Is it not like throwing once separated property into the common hotchpot with a intention to waive individual right over the same as in the olden days under the law, and convert the same into coparcenery property by blending. But for that there should exist coparcenary property for the purpose of blending the same. In case  if there is nothing in the hotch pot  to blend with, it will remain as separate property  see Jupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao (AIR 1994 A.P.134) such blending is always in favour of entire body of coparcenary (See 1968(2) MLJ 411).

(For further clarification kindly see any standard text book on Hindu Law like Mulla,
MAYNE or N.C.Ragahavachari Standard Text Book on Hindu Law).

The view expressed in Babu v. Arunapriya (2012 (4) KLT 487) will be I feel the correct view applicable to Kerala which hold that the Central Act 39/2005 amendment of Section 6 will not apply to Kerala in view of the fact that no coparcenery exist in Kerala since 1.12.76 when Kerala Act 30/76 came into force.

INCREASED LONGEVITY: WILL EPFO PENSION SCHEME BE ABLE TO AFFORD?

The study shows a newborn in 1950 had only a 46% chance of surviving to 60 years, but this has nearly doubled 70 years later.

 By Advocate H.L. Kumar 

Life expectancy has certainly increased significantly in India and there is every reason for it to rise further because of better medical facilities, awareness of the people about health and availability of better and healthy food. The present estimate is that it has risen by 3 to 4 years, but it is definitely going to be more than the estimated age. Therefore, the change in the work style has become imperative. A person can work longer if dramatic changes in career structure are brought about. There is a need to move away from the three-stage model of education, work and retirement to multistage life where careers are more fluid combining different stages of working from money to charitable efforts, caring for family etc.

The moot point is the period of pension will be automatically increased if the life expectancy increases and how will the organisation be able to bear the burden which will fall upon it by the increased life expectancy? In such circumstances, there are some countries which are thinking of increasing the retirement age of the employees but that is not as easy as it is being sought to be made out because after a certain age, the working capacity will not be the same as it is in the age of forties and fifties. 

Global life expectancy at birth increased from 46.6 years in 1950 to approximately 73.0 years in 2019 and the despite the setback caused by the COVID-19 pandemic, it is projected to reach 77.0 years in 2048 and furthermore in the years beyond 2050. Eastern Mediterranean, Southeast Countries and Western Pacific Regions have witnessed major gains. Apart from it, the chances of survival to older age have also improved. The study shows a newborn in 1950 had only a 46% chance of surviving to 60 years, but this has nearly doubled 70 years later.

If the age of retirement is increased, then the number of new recruits and employees will also come down which will be the cause of further unemployment. India cannot be compared with other countries because here the majority of the people are still young, but that will also increase in time. While in Japan the number of such old people has gone up and the problem of an ageing society has become more acute than in India. Firms generally do not think of older people as productive workers or consumers but with more elders ageing well and enjoying more money there are huge opportunities also. Companies should plan for longer careers, incorporate older workers' skills and support them in the workplace. Gone are the days when the cliches of tapering energy or health used to be applicable when one becomes elderly but there can be a better use of the elderly people for skills and preparing good social conditions. The elderly people may not be able to put in more physical work, but their skills can be used, without doubt, for better production.

As we live longer, we need to push back retirement, but will it helps solve the problem? The physical skills certainly diminish, so the company will have to think of insuring better health for fifty+ workers so they can remain healthy and more productive in the changing circumstances. There is often a negative perception around older people this is quite strange because while our chances of growing older are increasing globally, society seems to value it less. The problem comes with seeing old age in the decline of medical health, but the real question is how the Employee Provident Fund Organisation, which is a nodal agency providing pensionary benefits will be able to cope with the pressure, which will automatically be put it with increased years of giving pension. This needs to be considered with an open mind in view of the increasing longevity. 

The liability for payment of pension under EPFO does not cease on the demise of the member of the pensioner.  If a member dies while in service before attaining the age of 58 years, after payment of contribution for a month only, Family pension is paid to any of the beneficiary i.e. spouse, sons, daughter, includes legally adopted by the member. The family members of the deceased are entitled to family pension by default. The amount of pension will be as per amount mentioned in Table C (under paragraph 16 of the Employees Pension Scheme, 1995 pertaining to equivalent to widow pension as attached) or member pension, that would be payable to the member on the date of his death, whichever is higher.

In case of death after leaving service but before attaining the age of 58 years with contribution less than 10 years, pension is paid to Family member only as per above calculations. No nominee or parents are entitled to Family pension in such a case of death.

In case of death after leaving service but before attaining the age of 58 years with contribution more than 10 years, pension is paid to family as well as nominee or parents in absence of former. Family pension will be as above, that is as per Table C or equal to member pension whichever is higher.

In case of death after commencement of the Pension to an EPS member, the pension is paid to Family members only and the amount payable will be 50% of the member pension which the member is receiving or getting. No nominee or parents are entitled to the Family Pension in this case.

In case a member dies, away from service but before attaining the age of 58 years with contribution more than 10 years but could not contribute to the Pension Fund continuously for 36 months before his death the Family pension is ceased and the family of such member is not given Family pension. Instead, withdrawal benefit is paid to the beneficiary Family member. 

TABLE - C

(See Paragraph 16)

(EQUIVALENT WIDOW PENSION)

There is no surprise that the longevity of newborn children will be six to ten years more than their parents. The longer the age after the retirement of an employee, the more will be the period of payment of pension by the Employees Provident Fund organisation to thousands of retirees year after year. According to a report published in a well-known daily newspaper the children born 'now could live for hundred years'. It has been comprehensively discussed in the book ‘The Hundred-Year Life’ of famous economist Andrew J Scot. According to him, longevity can be better used and made productive by adopting some innovation. 

LIFE EXPECTANCY UP -- The life expectancy at birth has more than doubled since Independence.  In 1951, an average Indian could expect to live to be 32 years old, which has since increased to 68 years in 2013, according to Niti Aayog Data.  Indian Express 12.9.2021 

LIVING LONGER -- Global life expectancy at birth increased from 46.5 years in 1950 to approximately 73.0 years in 2019 and, despite the setback caused by the Covid 19 pandemic, it is projected to reach 77.0 years by 2048.  Gains are the most in Eastern Mediterranean.  South-East Asia, and Western Pacific regions.  Besides, chances of survival to older age have also improved.  Globally, a newborn in 1950 had only a 46% chance of surviving to 60 years.  This has nearly doubled 70 years later.   Economic Times 24.5.2023

Defect Melas in Times of E-Filing

 (By Jacob Abraham, Advocate, High Court of Kerala) 

E-filing was an inevitable introduction. But as in the case of similar ventures, it has its share of controversies and difficulties in its conceptualisation, introduction and implementation. Everyone without exception was new to it. The Judges, lawyers, staff, litigants, advocate clerks, stamp vendors, stationers, and everyone associated with it had to endure the difficulties during its implementation. For some, it was tragic like loss of job, income, business, etc. To lawyers and their clerks most of the time, what they call, it was defect melas.

E-filing was expected to do ease of doing business. Despite the present problems ultimately it will reach its goal. This writer intends to bring up some of the difficulties that were avoidable in the first instance itself, for which all concerned are responsible.

Now in the High Court and all courts, filing papers in A4 size is mandatory but not followed in lower courts. The printing is to be done on both sides of the paper. But regarding the margins there is variation in what is stated in E-filing Rules and the notification issued by the High Court. As per notification No.DI-1/104010/2019 dated 22.9.2020 of the High Court, left and right margins must be 3.5 c.m. and the top and bottom 2 c.m. (necessity of 3.5 c.m. on the right side is difficult to understand). As per Rule 5 of Electronic Filing Rules for Courts (Kerala), 2021, top, bottom, left and right margins are to be 1.5, 1.5, 1.75 and 1.0 respectively. This rule is applicable in respect of all courts in Kerala and it is later in introduction. There must be clarification regarding the applicability of the rule that is applicable.   

Now new guidelines are introduced in respect of filing urgent memos in High Court. Such memos are to be filed between 10 a.m. and 1 p.m. A time when lawyers are in court or are travelling to court. No choice is given to the applicant to select a date. It is invariably the day after tomorrow. An option must be given to select a date. Regarding disposed of cases there is no guarantee in respect of the posting date. One can understand the practical difficulty involved in it. But there should be a time limit for this.  Another problem related to the answering of queries to be given in the application. One of the questions is whether the service is complete and another is the date notified for appearance. To know them, one has to approach different seats situating on different floors of the court. Some solution is to be found in respect of it this like online publication of notices mentioned in Rule 52 of the Rules of the High Court of Kerala or in case status or in some other place. Till that is introduced, conveying information over the phone must be encouraged. Proper updating of history of case filing will also be helpful in a long way. That is not happening always.

Copies of documents can be obtained by strangers, only on orders by the court.
Rule 129 of the Rules of the High Court of Kerala dealt with it earlier and as per this rule, a verified petition was to be filed. Now the new rule is Rule 132 and it requires a verified petition and an affidavit. One cannot understand the necessity, especially for both. Or either that requires the order of the court in a court of record.

One can apply online for certified copies of judgements and decrees. A laudatory move. But to get the judgements or decrees that were not published online one has to approach different staffs for publication of it online or for scanning the same, etc. There must be coordination between the different persons responsible for issuing them. No time limit is also fixed for issuing copies. It is an area that requires immediate attention. After all, all are employed under the same employer and are sitting under the same roof and applicants must be spared of approaching different seats. Online applications are to be introduced in respect of documents as well.

Online publication of notices, circulars, etc., must be made mandatory. It is regretted to note that even the Rules of the High Court of Kerala is not available online, even though it appears to be available online. It is inaccessible. Likewise, the amendments to this rule are also not published. There are judgements by individual Judges saying that certain formalities are to be followed in certain cases. They work like rules and due to the non-availability of these judgements on the website one is facing difficulties and results in defective filings.   

Lack of care in sticking to rules in drafting the pleadings by counsels and in the verification of e-filed papers by FSOs are other important reasons that cause the defects.

Hope that the system will eventually improve as it happened in the case of portals of Income Tax and GST.