Case Note & Summary
This appeal by special leave arose from a suit instituted by the respondents under Order 21 Rule 63 of the Code of Civil Procedure, 1908, seeking a declaration that a deed of trust dated December 15, 1926, executed in favour of the first defendant, Pares Nath Thakur, a deity installed in the Digamber Jain Temple at Cuttack, was sham and fraudulent, and that the properties covered by it were liable to be sold in execution of a money decree obtained by the plaintiffs against defendants 2 to 4. The plaintiffs were assignees of a mortgagee's interest under a simple mortgage bond dated April 14, 1927. In enforcing the mortgage, they obtained a preliminary decree on June 11, 1935, and a final decree on October 13, 1936; after sale of the mortgaged properties, a money decree for about Rs. 11,000 was passed on April 29, 1940. The disputed properties, which had been attached before judgment on September 23, 1934, were claimed by the deity through its trustees under Order 21 Rule 60 of the Code. The executing court, after inquiry, allowed the claim. Consequently, the plaintiffs commenced the present suit under Order 21 Rule 63. The trial court and the first appellate court both dismissed the suit after detailed consideration of evidence, holding that an idol existed, that the deed of dedication effectively transferred title from the donors to the deity, that the donors had divested themselves of all interest in the properties, and that the deed had been executed to place the title beyond doubt. On second appeal, a Division Bench of the Orissa High Court reversed these concurrent findings of fact and decreed the suit in favour of the plaintiffs, holding that the defendant deity had failed to prove its title and that the recitals in the trust deed did not establish a real dedication. The defendant deity then appealed to the Supreme Court by special leave. The Supreme Court framed the primary issue as whether the High Court could interfere with concurrent findings of fact and whether the burden of proof had been correctly placed. The Court held that the question whether a trust deed was a fictitious document was essentially a question of fact, relying on the decision in Meenakshi Mills, Madurai v. Commissioner of Income-tax, Madras. It reiterated the settled principle that a High Court in second appeal cannot go into questions of fact, however erroneous the findings may be. The Court further held that the High Court had completely misdirected itself on the question of onus: in a suit for declaration that a registered deed is sham, the burden lies heavily on the plaintiff, and it becomes doubly heavy when the plaintiff seeks to set aside an order of the executing court upholding a third party's claim. The High Court had shifted this burden onto the defendant deity to prove title, which was contrary to law. Additionally, the Supreme Court examined the trust deed's recital empowering trustees to alienate certain properties and found that the High Court had misread the document; the power was limited to specific inconveniently situated properties, not the disputed properties in Cuttack, and such a provision did not render the deed fictitious. The Supreme Court noted that the lower courts had accepted reliable evidence, including that of D.W.3, a respectable witness. Accordingly, the Supreme Court allowed the appeal, set aside the judgment and decree of the Orissa High Court, and restored the judgments and decrees of the courts below dismissing the plaintiffs' suit. The decision affirmed that concurrent findings of fact should not be disturbed in second appeal and that the plaintiffs had failed to discharge the heavy burden of proving the trust deed sham and the executing court's order erroneous.
Headnote
A) Civil Procedure - Second Appeal - Power of High Court to Interfere with Findings of Fact - Code of Civil Procedure, 1908, Order 21 Rules 60 and 63 - In second appeal, a High Court cannot go into questions of fact however erroneous the findings of fact recorded by courts of fact may be, unless the question is one of law or a specified exceptional case - The lower courts concurrently found that the trust deed was valid and effective; the High Court reversed this finding, which was essentially a factual determination - Held that the High Court erred in setting aside concurrent findings of fact and that the question whether a trust deed was fictitious was essentially one of fact (Paras 1-6). B) Evidence - Burden of Proof - Suit for Declaration that Registered Deed is Sham - Code of Civil Procedure, 1908, Order 21 Rule 63 - The burden of proof lies heavily on a plaintiff who sues for a declaration that a document solemnly executed and registered is a fictitious transaction; the burden becomes doubly heavy when the plaintiff seeks to set aside an order of a civil court passed in execution proceedings upholding a third party's claim - The High Court misplaced the onus by requiring the defendant deity to prove its title, rather than requiring the plaintiffs to prove the deed was sham and the executing court's order was erroneous - Held that the High Court completely misdirected itself on the question of onus and that the plaintiffs had failed to discharge the heavy burden (Paras 1-6). C) Trusts and Endowments - Dedication to Deity - Effect of Power of Alienation in Trust Deed - Code of Civil Procedure, 1908, Order 21 Rules 60 and 63 - A specific power conferred on trustees to alienate certain inconveniently situated properties did not invalidate the dedication of other properties, particularly where the properties in dispute were located near the deity's temple and were not covered by the power - The High Court misread the trust deed by overlooking the limiting paragraph that restricted the power of sale to specified properties and by inferring that the document was not intended to be acted upon - Held that the recital regarding sale power did not lend itself to the inference of a sham transaction, and the two courts of fact had correctly appreciated the deed's terms (Paras 1-6). D) Civil Procedure - Execution Proceedings - Effect of Order under Order 21 Rule 60 CPC - Code of Civil Procedure, 1908, Order 21 Rule 60 - An order passed by the executing court after due inquiry upholding the claim of a third party is binding unless the plaintiff in a subsequent suit under Order 21 Rule 63 affirmatively shows the order was erroneous - The executing court had allowed the deity's claim to the attached properties, and the lower courts found the plaintiffs failed to prove the order was wrong - Held that the plaintiffs carried a heavy initial burden to displace the executing court's order, which they did not discharge, and the High Court erred by disregarding this burden (Paras 1-6).
Issue of Consideration
Whether the High Court in second appeal could reverse concurrent findings of fact recorded by two lower courts; whether the burden of proof was correctly placed on the defendant deity rather than on the plaintiffs; whether the trust deed dated December 15, 1926 was a sham and fictitious document; whether the executing court's order under Order 21 Rule 60 CPC was binding unless shown erroneous.
Final Decision
The Supreme Court allowed the appeal, set aside the judgment and decree of the Orissa High Court, and restored the judgments and decrees of the trial court and the first appellate court dismissing the plaintiffs' suit. The Court held that the High Court erred in interfering with concurrent findings of fact and in misplacing the burden of proof.
Law Points
- Legal points not extracted
- High Court cannot interfere with concurrent findings of fact in second appeal
- question whether trust deed is fictitious is essentially one of fact
- burden of proof lies heavily on plaintiff to prove registered deed sham
- burden becomes doubly heavy when challenging executing court order under Order 21 Rule 60 CPC
- onus cannot be shifted to defendant deity to prove title
- power of alienation limited to specific properties does not invalidate dedication
