The Judgment of the Court was delivered by
Oldfield, J.:— The only question argued is whether the burden of proof regarding the defendant's 1 minority was rightly imposed on the defendants by the lower appellate Court. The answer may be given shortly in the words of the Chief Justice in Krishnama Chariar v. Veeravelli Krishnama Chariar(1).
“In the case of contract if the plea of infancy is set up, it is for the party who sets up the plea to prove it,”
2. That is, in this case, for the defendants. Virupakshappa v. Sidappa Basappa(2) and Nilmonee Choudhry v. Mt. Zuheerunnissa Khanum(3) are also in point.
3. The second appeal, therefore, fails and is dismissed with costs.
Tyabji, J.:— In this case, in my opinion, no question arises which can be considered in second appeal. All we are really asked to decide is, whether the learned Sub-Judge considered an issue of fact in the correct manner. That question must, in my opinion depend upon whether the Sub-Judge acted in accordance with the Indian Evidence Act or in contravention of it. The argument before us is that the present appeal is dependent on the question whether the burden of proof as to issue 1 lay upon the defendants which in my opinion, without any warrant is assumed to be always a question of law. Issue 1 “was defendant 1 a major at the time of the sale relied on by the plaintiff?”
4. Unless this issue is answered in the affirmative, the plaintiff must fail because it was the plaintiff who was relying on the sale executed by defendant 1 and it was necessary for him to prove the validity of the sale in order to prove his title. The Sub-Judge did answer it in the affirmative. For doing so, he presumed that defendant 1 was of age at the date of Ex. A and threw the burden of proof on the defendants as regards the issue. It may be that this course was necessitated by Section 106 of the Evidence Act, it was in my opinion, certainly within his powers under S. 114, especially in consideration of the fact that he held Ex. B (to which I shall refer later) to be genuine. But the learned Sub-Judge did not refer to either section. Nor was his decision expressed to be based on the grounds I have mentioned.
5. If the lower Courts were to refer to the sections of the Evidence Act or at least to follow the terminology of that Act (which ought to be taken as the first guide in the decision of facts), a great number of second appeals would not be filed at all and a great number of others would not withstand fruitless efforts on the part of the appellant to formulate grounds of appeal. On the other hand a discussion of facts in language not corresponding to that which is adopted in the Evidence Act, and without anything to indicate that, the attention of the Court has been directed to its powers and duties as laid down in the Evidence Act make the task of Courts sitting in second appeal unnecessarily laborious. In this particular case I may point out that the Sub-Judge has considered the whole evidence carefully and has come to the conclusion that the oral evidence is quite unreliable and that only one document, Ex. B, is proved to have any bearing on the age of the defendant 1 that document is evidence as an admission that the first defendant was of age. If on these materials the learned Sab Judge had given a decision with reference to the Sections 106 and 114 of the Evidence Act, is would have been wholly satisfactory. It would then have been quite appropriate to cite as he did Virupakshappa v. Sidappa Basappa for the purpose of showing that a Court of superior jurisdiction adjudicating upon similar facts had based its decision by presuming in favour of majority. It would have then also been proper to refer to the obiter dictum of the Chief Justice in Krishnama Chariar v. Veeravelli Krishnama Chariar and to the case in Nilmonee Chowdhry v. Mt. Zuheerunnissa Khanum, which was decided five years and twelve days prior to the date when the Evidence Act came into operation.
6. When presumptions and the incidence of the burden of proof are the subject of discussion it seems to me to be unsafe and unsatisfactory to ignore the appropriate sections, of the Evidence Act and in particular Ss. 4, 79, 90 and 101-114. Their effect is summarized in the following terms by Messrs Ameer Ali and Woodroffe in their commentary just preceding S. 101:
“In conclusion, the general principle with regard to burden of proof may be stated to be that a party who desires to move the Court, must prove all facts necessity for that purpose (Ss. 101-105). This general rule is, however subject to two exceptions: (a) he will not be required to prove such facts as are especially within the knowledge of the other party (S. 106), nor (b) so much of his allegations in respect of which there is any presumption of law (Ss. 107-113), or, in some cases, of fact (S. 114) in his favour.”
7. To the sections mentioned by the learned authors in paranthesis, might be added Sections 79-90 of the Evidence Act, and the other provisions of the law such as Sections 118, 122 or 137 of the Negotiable Instruments Act, 1881. The expression “presumption of law” is taken from the system prevailing in England and as I understand the matter, it refers to those presumptions which the Judge is required to point out to the jury. The Evidence Act does not follow that phraseology, but lays down that certain matters Shall be presumed and others may be presumed (Section 4 of the Evidence Act. Taylor on Evidence, paras. 25, 70, 72 et seq and 111. The introduction of the Evidence Act by its draftsman, Sir James Stephen, re-printed in Ameer Ali and Woodroffe's Edition of the Act at p. 79 shows the relation between the English Law and the Evidence Act on this subject). I desire also to refer in this connexion to my remarks in Pengale Viswanatha Row v. Chinnakolandai Nainar(4) which were explicitly concurred in by my learned colleague.
8. When decisions referring to presumptions are relied upon, it is necessary to bear in mind whether the presumption raised (or rejected) in the decisions is one of fact or of law, something which the Court may presume or shall presume: see (Evidence Act, S. 4). For this purpose it is advisable to see whether the decision cited is or is not of a Court adjudicating upon facts.
9. In my opinion, the learned Sub-Judge was, for the reasons I have stated, entitled (especially in view of Section 106 of the Evidence Act and of his decision that the only piece of reliable evidence in the case was in favour of the plaintiff) to draw the presumption that the defendant 1 was of age and to throw the burden of proving his minority on the defendants, and his decision on that issue cannot be questioned in second appeal.
10. I would, therefore, dismiss the second appeal with costs.
S.N/R.K
11. Appeal dismissed.