(1) The standard of evidence is not uniform when challenging a registered document as compared to challenging an unregistered document.
The legal scheme governing various principles of the 'burden of proof' is contained in Articles 117 to 122 of the Q.S.O. As per Article 117 ibid, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This Article is based on the rule, ei incumbit probatio qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it because a negative is usually incapable of proof. The burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. However, the above rule is subject to the general principle that things admitted need not be proved.
In terms of Article 118 of Q.S.O., the initial burden to prove its claim is always on the plaintiff and if he discharges that burden and makes out a case that entitles him to relief, the burden shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff of the same. Where, however, evidence has been led by the contesting parties, abstract considerations of burden are out of place and truth or otherwise must always be adjudged on the evidence led by the parties. As per Article 119 of Q.S.O, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. This Article amplifies the general rule in Article 117 of Q.S.O that the burden of proof lies on the person who asserts the affirmative of the issue. It lays down that if a person wishes the court to believe in the existence of a particular fact, the burden of proving that fact is on him unless the burden of proving it is cast by any law on any particular person. Article 121 of Q.S.O is an application of the rule in Article 119 of Q.S.O. Article 122 of Q.S.O is an exception to the general rule laid down in Article 117 of Q.S.O that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue. Article 122 of Q.S.O is not intended to relieve any person of that duty or burden but states that when a fact to be proved is peculiarly within the knowledge of a party, it is for him to prove it. 12. Given the above legal position, it may be resolved that the phrase 'burden of proof’ has two meanings - one the burden of proof as a matter of law and pleading, that is ‘legal burden’ and the other, the burden of establishing a case, that is ‘evidential burden’, 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 presumption in his favour.
Thus, the legal burden would always remain on the plaintiffs and the evidential burden would shift to the defendants if they (plaintiffs) discharged their initial burden. The evidence required to shift the evidential burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by the opposite party, it may comprise of circumstantial evidence or presumptions of law or fact. The question as to whether the burden of proof has been discharged by a party to the lis or not, would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record to enable a Court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lies would still be liable to produce direct evidence.
The standard of evidence required to discharge the initial burden depends on the facts and circumstances of each case. It cannot be said that it will be consistent in all situations. Sometimes, a simple denial is adequate to shift the burden to the opposite party, while at other times, material evidence is necessary for the same purpose. Therefore, the standard of evidence is not uniform when challenging a registered document as compared to challenging an unregistered document. It has been observed that in disputes relating to registered documents, a common misconception may arise when an executant attempts to dispute the validity of the document through mere denial. It is essential to emphasize that the act of registration is not a perfunctory formality but rather a deliberate and legally binding process. When a document is registered, it becomes an official record available to the public. This adds credibility to the authenticity and legal purpose of the transaction.
On the other hand, unregistered documents lack the same level of legal endorsement. While they may carry evidentiary weight, their value is inherently lessor as compared to the registered document. The absence of registration renders unregistered documents vulnerable to challenges regarding their authenticity and enforceability. Moreover, a document duly registered by the Registration Authority in accordance with the law becomes a legal document that carries a presumption as to the genuineness and correctness under Articles 85(5) and 129(e) of the Q.S.O. and which cannot be dispelled by an oral assertion that is insufficient to rebut the said presumption. The High Court overlooked the above position of law and erroneously held in the impugned judgment that “the moment the document [suit registered documents] is challenged by the alleged executant or his successor-in-interest, that presumption stands rebutted, and the beneficiary thereof has to prove not only the execution thereof, but also the original transaction embodied therein.”
Under section 11 of the Contract Act 1872, a contract made by a minor is of no legal effect. Moreover, it is a well-established principle of Muslim Law that a de facto guardian of a minor has no power to transfer any right to or interest in the immovable property of the minor. Such a transfer is not merely voidable but is void.
A sale deed relates to financial obligations and is required to be attested by two witnesses by virtue of sub-Article 2(a) of Article 17 of the Q.S.O. The general rule indeed is that the documents required by law to be attested shall not be used as evidence until two attesting witnesses, who are if alive, amenable to the jurisdiction of the Court and capable of giving evidence are produced before the Court under Article 79 of the Q.S.O. for the purpose of proving its execution.
Suit for Declaration/Cancellation of Document
C.A.81-K/2022 Mst.Nazeeran & others v. Ali Bux (deceased) through his L.Rs.& others
Mr. Justice Syed Hasan Azhar Rizvi
05-12-2023
 The standard of evidence is not uniform when challenging a registered document as compared to challenging an unregistered document. (2) A mere denial by the .....){kind=link}
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