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TMI Blog1961 (3) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... Satar Ahmedbhoy and Nathuram Ramaldasagreed to enter into a transaction of exchange in respect of the said properties. For the purpose of exchange the Empire Tin Factory at Bombay was valued at a sum of ₹ 1,48,000.00 and the Indian Electric and Trading Company at Karachi was valued at ₹ 1,00,000.00 In respect of the balance of ₹ 48,000.00 payable by Nathuram Ramaldas to Abdul Satar Ahmedbhoy, the former paid to the latter a sum of ₹ 11,000.00 in cash and executed a promissory note dated 24/12/1947, in his favour for the balance of ₹ 37,000.00 On or about 22/03/1948, Abdul Satar Ahmedbhoy endorsed the said promissory note in favour of the appellant Kundan lal Rallaram. It is said that the said endorsement was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected the petition. The appellant filed an appeal against that order to the Custodian of Evacuee Property, Bombay, on 10/08/1951, and the same was dismissed on 10/09/1951. But the Custodian-General by his order dated 7/12/1955, in revision remanded the case to the custodian for further enquiry after giving the parties an opportunity to produce fresh evidence with regard to the genuineness or otherwise of the signature of Abdul Satar Ahmedbhoy to the endorsement. On remand, the Custodian, after considering the entire evidence placed before him, found that the transaction of exchange between Abdul Satar Ahmedbhoy and Nathuram Ramaldas was without consideration, though the endorsement on the reverse of the promissory note by Abdul Satar Ahmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r alia, that the negotiable instrument or the endorsement was made or endorsed for Consideration. In effect it throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be. The question is, how the burden can be discharged? The rules of evidence pertaining to burden of proof are embodied in Chapter 7 of the Evidence Act. The phrase burden of proof has two meaning - one the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift again to the plaintiff. He may also rely upon presumptions of fact, for instance those mentioned in S. 114 and other sections of the Evidence Act. Under S. 114 of the Evidence Act, The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (g) to that section shows that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. A plaintiff, who says ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its decision. With regard to third parties this may be right enough - they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is in their Lordships' opinion, as inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. 3. The same rule was reaffirmed in Rameshwar Singh v. Bajit Lal, and was approved by this Court in Hiralal v. Badkulal. THEse three decisions lay down that it is the duty of a party to a suit in possession of important documents to produce them in court, and if that duty is not discharged the court may as well draw the presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gave evidence before the Deputy Custodian. His evidence discloses the following facts : the appellant was doing business in radios and gramophones in Karachi in partnership with one Sarup Singh; he transferred his shop to his friend Iqbal Hussain with the consent of the landlord without consideration and the stock-in-trade for consideration to Abdul Satar Ahmedbhoy; he did not remember the name of the landlord whose permission he took before transferring the shop to Iqbal Hussain; he sold all his goods to Abdul Satar Ahmedbhoy who was a stranger to him and took from him a sum of ₹ 96-1-0 in cash and took from him an endorsement in his favour of the promissory note for ₹ 37,000.00 executed by another who was also a stranger to h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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