PARES NATH THAKUR versus SMT. MOHANI DASI AND OTHERS

Citation: [1960] 1 S.C.R. 271 · Decided: 12-05-1959 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

S.C.R. 
SUPREME COURT REPORTS 
PARES NATH THAKUR 
v. 
SMT. MOHANI DASI AND OTHERS 
(B. P. SINHA, P. B. GAJENDRAGADKAR and 
K. N. W ANCHOO, JJ.) 
271 
Execution-Deity's claim based on deed of trust upheld ~y 
executing court-Suit by decreeholder-Deed, if fraudulent in 
character-Burden of proof-Concurrent findings of fact-Power of 
High Court in Second Appeal-Code of Civil Procedure 0. zr., 
rr. 60, 63. 
The respondents as plaintiffs brought the suit, out of which 
the present appeal arises, under the provisions of 0. 2r, 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, [r956] S.C.R. 69r, 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. 2r, r. 60 of the Code was erroneous. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 
655of1957. 
Appeal by special leave from the judgment and 
decree dated April 22, 1954, of the Orissa High Court 
in Second Appeal No. 174of1948, arising out of the 
judgment 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 
r959 
May IZ. 
272 
SUPREME COURT REPORTS [1960(1)] 
x959 
Munsif, Cuttack, dated August 31, 1946, in Title Suit 
Pares;,;;;;-Thakur No., 120 of 1943. 
v. 
A. V. Viswanatha Sastri and B. P. Maheshwari, for 
Mohani Dasi 
the appellant. 
and OIMrs 
Sinha ]. 
S. P. Sinha and R. Patnaik, for 
respondents, 
Nos. 2, 3 and 4. 
1959. May 12. The Judgment of the Court was 
delivered by 
SINHA 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 pro-
visions of r. 63 of 0. 21 of the Code of Civil Procedure 
(hereinafter referred to as '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 pro-
perties 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 pro-
perties were sold and purchased by the decree-holders, 
but as the decretal dues were not satisfied by the sale 
S.C.R. 
SUPREME COURT REPORTS 
273 
of the mortga

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