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proof how andwhat ?

(Querist) 16 May 2008 This query is : Resolved 
is there any difference between 'burden of proof' and 'onus of proof ?
Prakash Yedhula (Expert) 16 May 2008
The following judgment of the Supreme Court would clearly illustrate the difference between burden of proof and onus of proof:

Appeal (civil) 2413 of 2006

PETITIONER:Anil Rishi

RESPONDENT:Gurbaksh Singh

DATE OF JUDGMENT: 02/05/2006

BENCH:S.B. Sinha & P.K. Balasubramanyan

JUDGMENT:J U D G M E N T[Arising out of SLP (Civil) No. 5963 of 2006]

S.B. SINHA, J.

Leave granted.

The defendant in the suit is the appellant herein. He is before us aggrieved by a judgment and order dated 14th December, 2005 passed by the Punjab and Haryana High Court at Chandigarh in Civil Revision No. 1077 of 2005 dismissing his revision application arising out of an order dated 9.2.2005 passed by the Civil Judge (Junior Division), Chandigarh.

An agreement to sell dated 26.03.1990 was entered into by and between the parties hereto in relation to the premises bearing House No. 86, situate in Sector 18A, Chandigarh. A sale deed was executed pursuant to the said agreement to sell on 27.03.1991. However, a suit for declaration was filed by the respondent herein alleging that the said sale deed dated 26.3.1991 was a forged, fabricated and was a void document. The appellant filed his written statement in the said suit denying or disputing the allegations contained therein. On the pleadings of the parties herein, issues were framed by the learned trial Judge including the following:-

"Whether the sale deed dated 26.3.1991 is forged and fabricated as prayed for?"

An application was filed by the respondent for deletion of the said issue and reframe the same. The learned trial Judge reframed the issue allowing the said application in terms of order dated 9.2.2005. Reframed issue No. 2 reads as under:-

"Whether the alleged sale deed dated 26.3.1991 is a valid and genuine document?"

The learned Trial Judge while passing its order dated 09.02.2005 held:-

"Normally the initial burden of proving the execution of a document when it is denied must rest upon the person alleging its execution. Here in the present case the plaintiff has denied the execution of the sale deed. The onus to prove a issue has to be discharged affirmative. "It is always difficult to prove the same in negative". When the fact is proved in affirmative or evidence is led to prove the same. Onus shifts on the other side to negate the existence of such a fact."

A revision application filed on behalf of the appellant herein against the said order was dismissed by the High Court by reason of the impugned order stating:-

"In the present case, it is the case of the plaintiff-respondent that he had not executed any sale deed dated 26.3.1991 in favour of the defendant-appellant and it was a forged and fabricated document. On the other hand, it is the case of the defendant that the said sale deed is valid and genuine document. The sale deed itself is in possession of the defendant. In such a situation, the defendant is in a dominating position to prove the document affirmatively, whereas it will be difficult for the plaintiff to prove the same. Negatively, who is not even in possession of the sale deed in question. After the defendant proves the validity and genuineness of the sale deed, the turn will come of the plaintiff to prove the document negatively. In this view of the matter, I am of the considered opinion that the trial court has rightly re-framed issue No. 2 and put the onus on the defendant to prove whether the same is valid and genuine document. There is no infirmity in the order dated 9.2.2005 passed by the Civil Judge (Junior Division), Chandigarh"

In the impugned judgment, the High Court proceeded on the basis that although generally it is for the plaintiff to prove such fraud, undue influence or misrepresentation, but when a person is in a fiduciary 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 dom


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