KRISHNA MOHAN KUL @ NANI CHARAN KUL AND ANR. versus PRATIMA MAITY AND ORS.

Citation: [2003] SUPP. 3 S.C.R. 496 · Decided: 09-09-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed

Judgment (excerpt)

A 
KRISHNA MOHAN KUL @ NANI CHARAN KUL AND ANR. 
V. 
PRA TIMA MAITY AND ORS. 
SEPTEMBER 9, 2003 
B 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
Code of Civil Procedure, 1908 : 
Section 100.-Second Appeal-Appellants claiming possession of 
C property on the basis of a registered settlement deed purported to be 
executed by executor, who was old and not in a fit condition mentally and 
physically-Respondents filing suit fordeclaration and permanent injunction 
before trial court allegingfraud and undue irifluence exercised by appellants 
on executor-Trial court dismissing the suit for failure by respondents to 
prove the validity of the deed-First Appellate Court confirming the 
D judgment of the trial court-High Court reversing the concurrentfindings-
On appeal, held, the lower courts wrongly placed onus on the respondents 
to prove validity of the settlement deed-Burden of proof on the appellants 
on ground of fiduciary relationship with the executor-Hence, interference 
by High Court justified-Evidence Act, 1872-Section 111. 
E 
Appellant-defendants claimed possession over suit property from 
respondent-plaintiffs on the basis of a registered deed of settlement 
purported to have been executed by the executor on 11.7.1970. The 
respondents filed a suit for declaration and permanent injunction 
F before trial court contending that the executor was more than 100 
years of age; that the executant was paralytic and was not in a fit 
condition physically and mentally at the time of the execution of the 
deed; and that there were no witnesses to prove the left thumb 
impression stated to have been affixed by the executor on the deed of 
settlement. The trial court dismissed the suit since the respondents 
G failed to prove the validity of the settlement deed. The first appellate 
court confirmed the trial court judgment and held that the age of the 
executant was not proved by the respondents. The High Court allowed 
the second appeal of the respondents holding that the onus of proving 
the validity of the settlement deed was on the appellants and that the 
H deed of setlement was void and invalid. 
496 
KRISHNA MOHAN KUL v. PRA TIMA MAITY 
497 
In appeal to this court, the appellants contended that the High A 
Court, in an appeal under section 100 CPC, cannot interfere with the 
concurrent findings recorded by the lower courts; and that the 
executant was in a fit physical and mental state at the time of execution. 
Dismissing the appeal, the Court 
HELD: I. The scope for interference by High Court with concurrent 
findings of fact while exercising jurisdiction under section 100 CPC is 
very limited. But where the trial court and/or the first appellate court 
misdirected themselves in appreciating the question of law and placed 
B 
the onus on the wrong party to prove the validity of the settlement deed, C 
then there is a scope for interference under section 100 CPC after 
formulating a substantial question of law. 1501-H, 502-A, BJ 
Yadarao Dajiba Shrawane (dead) by Lrs. v. Nani/al Harakchand 
Shah (dead) & Ors., [20021 6 SCC 404 and Neelikantan & Ors. v. Mallika D 
Begum, 12002) 2 SCC 440, relied on. 
Chandra Bhan v. Pamma Bai & Anr., 12002) 9 SCC 565 and 
Sakhahari Parwatrao Karahale & Anr. v. Bhimashankar Parwatrao 
Karahale, 12002) 9 SCC 608, distinguished. 
E 
2. The first appellate court totally ignored the relevant materiills 
and recorded a completely erroneous finding that there was no 
material regarding age of the executant when the document in question 
itself indicated the age. The courts below have wrongly placed onus to 
prove execution of the deed on the respondents. There was challenge F 
by the respondents to the validity of the deed. The onus to prove the 
validity of the deed of settlement was on the appellants. [502-E-G) 
3. When fraud, misrepresentation or undue influence is alleged by 
a party in a suit, the burden is on the party to prove such fraud, undue 
influence or misrepresentation. But when a person is in a fiduciary G 
relationship with another and the latter is in a position of active 
confidence, the burden of proving the absence of fraud, 
misrepresentation or undue influence is upon the person in the 
dominating position i.e. the party who is in a position of active 
confidence. He has to prove that there was fair play in the transaction H 
498 
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R. 
A and that the transaction is genuine and bona fide. In such a case, the 
burden of proving the 

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