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In Re: Para Thurinji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1916Mad647(1); 30Ind.Cas.258
AppellantIn Re: Para Thurinji and ors.
Cases ReferredMohammad Mehdi Hasan Khan v. Mandir Das
Excerpt:
evidence act (i of 1872), section 114, ill. (i) - production of bond by executant--presumption as to discharge--onus. - .....exhibit i. there was no endorsement of discharge on it. the courts below give weight to this piece of evidence, but point out that having regard to the fact that the person through whom the money' was said to have been paid was not examined, this evidence is not enough to discharge the burden which lay on the defendants. mr. visvanadha aiyar argues that the burden is on the plaintiff, having regard to illustration (i) of section 114 of the evidence act. that section refers to presumptions that may be raised. it does not follow that such presumptions would shift the onus of proof. the presumption is a piece of evidence in favour of the party. i do not think that the decision of mohammad mehdi hasan khan v. mandir das 17 ind. cas. 396: 14 bom. l.r. 1073 : 10 a.l.j. 373supports the.....
Judgment:

Seshagiri Aiyar, J.

1. The 7th to 9th defendants produced the usufructuary mortgage, Exhibit I. There was no endorsement of discharge on it. The Courts below give weight to this piece of evidence, but point out that having regard to the fact that the person through whom the money' was said to have been paid was not examined, this evidence is not enough to discharge the burden which lay on the defendants. Mr. Visvanadha Aiyar argues that the burden is on the plaintiff, having regard to illustration (i) of Section 114 of the Evidence Act. That section refers to presumptions that may be raised. It does not follow that such presumptions would shift the onus of proof. The presumption is a piece of evidence in favour of the party. I do not think that the decision of Mohammad Mehdi Hasan Khan v. Mandir Das 17 Ind. Cas. 396: 14 Bom. L.R. 1073 : 10 A.L.J. 373supports the learned Vakil. In that case, the bond contained an endorsement of discharge. The production of the document coupled with the endorsement was regarded as shifting the burden. The present case is, therefore, distinguishable from that decision.

2. I see no reason to differ from the conclusions of the Courts below.

3. This second appeal is dismissed.


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