ABDUL MAJEED MALLICK, J.-This appeal by the leave is directed against the judgment of the High Court dated 29th March, 1979, whereby the order of the trial Court dated 30th April, 1978, was set aside.
2. Fazal Rehman's claiming as owner of the suit land challenged the validity of sale, made by Malik Nazir Ahmed claiming to be the Mukhtar of Fazal Rehman's, in favour of Muhammad Sarwar and others vide sale-deed dated 16th November, 1972. It was averred in the plaint that Mukhtarnama, purporting to be executed by the plaintiff, was forged one. The trial Court framed the issue in terms of the averment and placed the burden of proof on the plaintiff. The plaintiff failed to lead evidence; consequently his suit was dismissed for want of proof. He, however, succeeded in second appeal, where the High Court allowed him to give evidence in support of his claim.
3. On remand of the case, the plaintiff moved the trial Court for reframing of the issue and to place the burden of proof on the defendants. His prayer was disallowed. He went in revision to the High Court. The learned Chief Justice of the High Court felt advised to accept his contention.
Consequently ; issue was reframed and the burden of proof was placed on the defendants to prove the execution of Mukhtarnama.
4. The first objection raised by the learned counsel for the appellant pertains to the expression of opinion relating to the dispute between the parties. To understand the grievance it would be useful to reproduce the relevant portion of the judgment which reads as under :---- "Prima facie, the circumstances that are intriguing and have heavily weighed in my mind is that the disputed Mukhtarnama was not executed in Sanghar where the executant, admittedly, resided and worked for a livelihood nor at Mirpur where the property is situate; the person who purports to have identified him, is also neither a resident of Sanghar nor of Mirpur but one Mr. Zainul Abdin, Advocate Karachi. The Mukhtarnama also does not give his correct address------either of Sanghar or of Mirpur but a fictitious one from Karachi proper."
5. The learned Chief Justice, it appears, was pursuaded to hold that in view of the attending circumstances reflected in the aforementioned paragraph, the burden of proof was to be placed on the defendant who alleged execution of the Mukhtarnama. Various factors lending support to his view, were narrated in the impugned report in order to suggest that initial presumption, raised in favour of the beneficiary, was rebuttable. The learned Chief Justice instead of confining to the question of burden of proof went ahead and entered into uncalled for open discussion; touching upon the merits of the real dispute. It goes to the credit of Raja Muhammad Siddique Khan, the learned counsel for the respondent that he frankly conceded that expression of opinion on the main dispute was uncalled for to resolve the controversy.
6. The observation in our view too was premature as the evidence of the parties was yet to be given. Defendant-appellants in these circumstances are well justified in apprehending the likelihood of prejudice caused to their case. This being so; we uphold the objection and expunge the above-mentioned portion of the impugned judgment.
7. The next objection relates to the question of placing the burden of proof. Agha Ashiq Hussain, the learned counsel for the appellants, contended that the burden of proof is to be placed on the plaintiff, who attacks the execution. He argued that in order to prove forgery it is incumbent upon the plaintiff to prove the negative fact by positive evidence; as in case no evidence is given at all by either party, it is the plaintiff who would fail. To support him he cited Lachmi Narain v. Mst. Nazeer Fatima (AIR 1926 Oudh 501), Bal Kishen and others v. Ram Charan and another (AIR 1929 P C 296), U Aung Ya v. Ma E Mal (AIR 1932 Rang. 24), Omanhene Kwamin Bassayin v. Omanhene Bendentu 11 (AIR 1937 P C 274), Dalchand Mulchand and others v. Hasabi w/o Ali Razakhan and others (AIR 1938 Nag. 152), M. Krishnaswa ml Naidu v. Secretary of State (represented by Collector of Tanjore) and others (AIR 1943 Mad. 15), Srundaban Chandra Dhlr Narendra v. The State of Orissa in the Revenue Department and others (AIR 1953 Orissa 121), and Mst. Sardar Bibi v. Muhammad Bakhsh and others (PLD 1954 Lah. 480).
8. Raja Muhammad Siddique Khan, in reply, argued that in a case where execution is denied and forgery is alleged the burden of proof is placed on the person who alleged execution. In support of his contention he referred us to Mst. Sardar Bibi v. Muhammad Bakhsh and others, Arsala Khan v.
Ghulam Mohy-ud-Din (PLD 1966 Azad J &, K 47), Abdul Karim v. Sattar Muhammad (unreported case, decided by the High Court of Azad J & K on 15-2-1971) and Saleh Muhammad Khan v. Hassan Muhammad Khan (1981 CLC 353).
9. We first proceed to examine the respective case-law relied upon by the learned counsel for the parties. In Lachmi Narain v. Mst. Nazeer Fatima the dispute related to transaction of transfer of property. It was alleged that nature of the transaction was fraudulent. In light of the facts of that case it was held as under :--------- "The burden of proving the fraudulent nature of a transaction lies ordi--narily on the persons who seeks to impeach it."
"In a suit attacking transfers of property the burden is on the plaintiff of establishing the attacks."
10. In U Aung Ya v. Ma E Mai, the mortgagor, who executed the mortgage-deed, claimed that he was of unsound mind and also that he had lucid intervals. In defence it was pleaded that at the time of the execution of deed the mortgagor was of sound mind. In view of the facts of that case it was laid down; "In a suit on a mortgage the mortgagor pleaded that he was of unsound mind at the time the mortgage-deed was executed. It, was found that he was of unsound mind and also that he had lucid intervals. Mortgagee contended that it was for the mortgagor to prove that he was of unsound mind at the time of execution of the deed while the mortgagor contended that it was for the mortgagee to prove that he was temporarily of sound mind at the time the document was executed. The evidence showed that the chief characteristic of his madness was his unreasonable hatred of strangers. It was also shown that he executed the registered deed and behaved quite normally when he was taken to the Sub-Registrar.
Held : that no general rule could be laid down as to where burden of proof lay and that the mortgagor was of sound mind at the time of execution."
11. In Omanhene Kwmnin Bassayin v. Omanhene Bendentu II, a dispute arose between the parties about the boundary of their estates. Prior to the dispute a document, purporting to be an agreement ; containing a clause of arbitration, was executed. In consequence of the agreement an award was made which settled the boundary of the disputed property. Defendant admitted his signature on the document but claimed that the document written in English, was not explained to him. On this view of the controversy, relating to burden of proof, the proposition was resolved as under :--------- "Where a person not knowing English has affixed his mark to a document written in English language, the onus to prove that the document was properly explained and interpreted to the person affixing his mark so as to make him understand its true import is on the party relying on the document."
12. `Dalchand Mulchand and others v. Hasanbi w/o Ali Razakhan and others' is a case where execution of a mortgage-deed and a sale-deed purporting to have been executed by the father of the defendants in favour of their mother were subject of dispute. Defendants denied the execution of the deed on which a dispute arose about the burden of proof. It was held as follows :------ "The initial burden of proving execution of a document when it is denied is upon the person alleging execution. But if nothing else is known then the mere fact that a document is admitted to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. This inference arises in India directly from S. 114, Evidence Act. Persons do not ordinarily sign documents without intending to execute them : that is not the common course of human conduct, nor yet the common course of their public or private business. Consequently if any person wants to rely on an exceptional circumstance, if he wants to show that in some particular instance the ordinary rule was abrogated surely he must prove it and thus the burden shifts on him."
13. In M. Krishanswa mi Naidu v. Secretary of State represented by Collector of Tanjore and others two cross-suits, relating to property of one Viralimalai Sadsiva Swamigal, who died without leaving any heirs, were instituted in the Court, one by the Secretary of State for India on the ground of escheat and the other by the opposite-party, who claimed the property under the title of gift ; made by the last owner. Defendants claimed adverse possession of the property. The main controversy was as to whether the last owner died without leaving any heir. The proposition relating to placing of the burden of proof was settled as under :--- "If a party wishes the Court to believe in the non-existence of certain facts and the existence of the rights asserted by him depends on the non-existence of such facts, it is as much his duty to establish those negative facts as it would be of proving positive facts, if his rights were to depend on their existence. The distinctions between the denial of an affirmative allegation and the assertion of a negative fact and between the proof of the existence or non-existence of a fact and disproof of its existence or non-existence are obvious and should not be lost sight of. The degree of proof in regard to affirmative and negative facts must be, in the nature of things, different although in either case the Court has "after considering the matters before it," to make up its mind whether it does or does not believe in the existence or non-existence of a fact which has `to be established or considers its existence or non--existence "so probable that a prudent man ought, under the circum--stances of the particular case, to act under the supposition that it exists" or does not exist.
When an affirmative fact is to be established, direct evidence to prove that fact can be adduced and the Court has to make up its mind as to its credibility and sufficiency ; but when a negative fact has to be proved, a plaintiff can be expected to do nothing more than to substantiate his allegations prima facie."
14. In Brundaban Chandra Dhir Narendra v. The State of Orissa in the Revenue Department and others the petitioner challenged the validity of a notification of the Government, whereby the petitioner was declared as a disqualified proprietor of the property and the property vested in the Court of Wards by virtue of the said notification. It was observed as under :-------- "The criterion that the burden to prove the absence of bona fides resting upon the person who challenges the same is not a burden requiringproof to the hilt but to render the same as reasonably probable is only for the purposes of finding whether or not there has been a valid exercised of the statutory power. If the Court is called upon to decide the positive existence of an impugned wrong motive, it must be proved to the positive satisfaction of the Court."
15. In `Mst. Sardar Bibi v. Muhammad Bakhsh and others' a dispute arose for possession of land left by one Mst. Qayam Khatun. The collaterals of the father of the deceased claimed half of the property according to Sunni Law. Mst. Sardar Bibi, defendant-appellant, refused to accept the claim of the plaintiffs on the allegation that the deceased was a Shia and she, being a daughter, was entitled to whole of the land of the deceased, under Shia Law. One of the issues was to be whether Mst. Qayam Khatun was Shia? Onus of proof was placed upon Mst. Sardar Bibi, defendant.
In second appeal controversy relating to placing of burden of proof was raised. In was contended that the burden of proof ought to have been placed on plaintiff, particularly when mutation of the entire estate had already been sanctioned in favour of the defendant. The objection ultimately was over--ruled. The relevant observation is reproduced as under;----- "When a plaintiff comes to Court and asks for a certain relief on the basis of certain facts, the onus of proof of those facts has to be on him, for the relief prayed for cannot be granted unless the Court is able' to hold the existence of those facts proved. But the law makes provision for certain presumptions and any party on whom a burden is cast by sections 101 and 102 may shift the onus of proving any fact to the other party by showing that that fact should be presumed to exist.
Sections 101 and 102 are to be read as subject to these presump--tions. Rules as to rebuttable presumptions are no more than rules as to burden of proof. When the Court presumes the existence of fact, the burden of proving its existence is on the party that asserts its non-existence.
Conversely, when the burden of proving a fact is on -a particular party, the Court is presuming its non-existence."
16. In Arsala Khan v. Ghulam Mohy-ud-Din the plaintiff-appellant brought a suit for possession of a house in lieu of a registered mortgage-deed. The defendant-respondent contested the suit and claimed that the deed was got executed fraudulently and without any consideration. The onus of proof was initially placed on the defendant to prove the deception and execution without consideration. The question relating to the burden of proof was raised in the second appeal. The learned Judge expressed the opinion as under; "I think what the learned counsel was aiming at by referring to the above authority was that just as a plaintiff must establish allegations relied on by him and he cannot rely on the unreliability of the defendant's witnesses, similarly defendant in the present case should have relied on his own evidence to prove that the execution of the mortgage deed was without consideration and the weakness of the evidence of the plaintiff could not help his case. This appreciation of the above authority is far from correct because it apparently applies to that party only which asserts affirmatively. The defendant in this case is not asserting affirma--tively but he and his witnesses are deposing to a contradictory negative proposition to the effect that no amount has been paid as a considera--tion for the mortgage deed, therefore, the authority in question cannot be treated as a precedent. Even if the defendant is unable to establish his assertion the plaintiff just the same would have to prove by satisfactory and reliable evidence that the consideration of Rs. 700 had, in fact, been paid. If he fails to do so and merely furnishes proof of the execution of the mortgage deed, it would not entitle him to a decree for possession."
17. In Saleh Muhammad Khan v. Hassan Muhammad Khan a general rule of evidence relating to burden of proof was enunciated as under :--------- "Let us see the case from another angle. It is time honoured principle that in cases of civil nature when a person alleges a fact to exist, it --is he, who bas to prove it affirmatively and if he successfully estab--lishes a prima facie case, the burden of proof shifts to the other side. In the case at hand, the appellant has proved a prima facie case and it was for the respondent to disprove it. But he failed to produce any evidence to rebut the case of the appellant. It is significant to state here that the defendant in his written statement also does not own the entries made in the Khasra Girdawari. This fact goes to lend support to the claim of the appellant and destroy the evidentiary value of Khasra Girdawari."
18. The scrutiny of the above-referred authorities lead us to the following conclusions :---
(i) Where under the circumstances of a particular case, a presumption operates in favour of a party, the burden of proving otherwise is on the opponent. The rules of the burden of proof and as to presumptions are closely linked. When the Court presumes the existence of a fact, the burden of proving its non-existence is on the opponent: Likewise when the Court presumes the non-existence of a fact, the burden of] proving the existence of that fact, lies on the party who asserts affirmatively ;
(ii) When a person alleges a fact to exist, it is be, .Who has to prove affirmatively and if he successfully establishes a prima facie case, the burden of proof shifts to the other side ; (i.e) Where execution of a document is denied, the initial burden of proving execution is upon the person who alleges the execution ; and
(iv) Where a transaction of transfer of property is attacked, the burden is on the plaintiff to establish the attacks.
19. The learned Chief Justice of the High Court examined the proposi--tion in the light of the first aforesaid principle. He referred to various aspects of the controverted facts of the case and arrived at a conclusion that it was for the defendant-appellants to prove execution of Mukbtarnama. We would do no better than to revert to the relevant part of the judgment. It reads :---------- "Frankly, the problem is not free from difficulty; one consequence of placing the onus of proof, in such cases as the instant one, on the plaintiff that worry's my mind is that regardless of what is ultimately found to be the truth, such a course would encourage the forging of title-deeds etc; it would thus be putting premium on forgery, Thanks to the ingenuity of law, a forger can also start with a presumption of truth and honesty: But if burden of proof, in such cases, is placed on the beneficiary, it would, at the same time, encourage a deceitful executant of whom there is no dearth, to repudiate a solemnly executed document and start with a presumption of non- execution.'
On comparison, however, it seems that the mischief resulting from pre--suming in favour of the owner of the property the prima facie executant of the document is lesser than by doing so in favour of the beneficiary. Execution of a document, where it is genuine, can be easily and convin-- cingly proved, by proving his signatures, his appearance before the registering authority, by examining the scribe, the stamp-vendor and the marginal witnesses etc. Etc."
It is impressed by the learned Judge that mischief resulting from presum--ing in favour of the executant is less than by doing so in favour of the party alleging execution. He justified his conclusion by counting various factors capable to prove positively than doing so in negative.
20. There is no second view on the proposition that where execution of a document is denied and forgery is alleged; the burden of proof is placed on the party alleging the execution. In the instant case, plaintiff who is owner of the end in dispute, denied the execution and averred that the document was forged one. In addition to that, the attending facts, uncontroverted between the parties, also raised initial presumption in favour of the plaintiff. This being the position; we find no reason to disagree with the conclusion arrived at by the learned Chief Justice. The objection is, therefore, overruled.
21. Next it is contended that the plaintiff-respondent, at the time of the framing of issue, accepted the onus of proof. Once the onus of proof was accepted by the parties ; it could not be challenged later on. It is also contended that the plaintiff-respondent moved for change of onus of proof at a belated stage. Hence ; according to the learned counsel for the appellant, at this late stage the onus of proof could not be shifted. 1n support of his contention be cited Pokhar Das and another v.
Thakar Das and others (AIR 19301ah, 213), Bishambar Das and others v. Telu Ram and others (AIR 1934 Lah. 1019), Australasia Bank Ltd. v: Muhammad Din (PLD 1963 Kar. 105) and Jamsher and others v. Abdul Jalil and others (PLD 1964 Pesh. 159).
22. We have considered the last objection raised by the learned counsel for the appellant. It is admitted that the case was yet at the stage of evidence of the parties. The plaintiff respondent moved the trial Court for reframing of issue and change of the onus of proof, before the evidence was led. This being the position, it cannot he argued that plaintiff-respondent made an attempt for reframing of issue and placement of the burden of proof at a late stage. The dictum laid down in the authorities, referred to us by the learned counsel for the appellant, is not helpful to him in view of the facts of the present case. In all the authorities, cited by the learned counsel for the appellant, objection of onus of proof was raised at the appellate stage. It was in the light of specific circumstances of the cases that the learned Judges decided that an objection relating to onus of proof cannot b: entertained at the appellate stage. There is no dispute with the proposition that the objection relating to onus of proof, ordinarily, be raised at the time of framing of issue. But at the same time when onus of proof is wrongly placed on a party ; that party cannot be deprived to object to the placement of the onus of proof, when evidence was yet to be led. That is undoubtedly an earlier stage. The import--ance of onus of proof remained till evidence was given.