JUDGMENT ASHIM KUMAR BANERJEE.ACJ: The above appeals would relate to premises No. 3 Alipore Park Place being partly two storied and partly one storied building erected on the land measuring about 1 Bigha 6 Kathas and 5 Chataks and 20 square feet. Parties to the litigation being the five plaintiffs and one Mahendra Kumar Sarawgee were the owners of the building in question. According to the plaintiffs, the premises were valued at Rs.4 Crores. The facts would reveal, one Munni Devi was the owner of the building to the extent of 9/16th share. Munni Devi was the grandmother of plaintiff No.1, 2 and defendant No.8. By a Deed of Family Arrangement dated November 20, 1933, the father of the plaintiff No.1 and 2 and defendant No.8 held undivided 5/16th share, balance undivided 2/16th share jointly belonged to plaintiff No.2, defendant No.8 and their mother Smt. Bhagwani Devi. Munni Debi died on October 22, 1942. Under her Will Bhagwani Devi got life interest whereas the plaintiff No.1, 2 and defendant No.8 would be entitled to undivided 9/16th share belonging to Smt. Munni Devi. Bhagwani Devi died on December 22, 1992. As per her Will she bequeathed her absolute interest to her grandsons Rabindra Kumar Sarawgee and Bharat Kumar Sarawgee as also Mahendra Kumar Sarawgee. Hiralal Sarawgee (Plaintiff No.1) was granted life interest under the said Will. After the death of Hiralal, Mahendra would get absolute ownership along with his sons Manish, Rabindra and Bharat. Bhagwani Devi appointed Rabindra as her executor. After the death of Bhagwani the plaintiff No.1 became the owner of 9/48th share in the said premises. Plaintiff No.2 also got 9/48th share so was the defendant No.8, plaintiff No.4 and 5 were the trustees under the Deed of Family Arrangement dated November 20, 1933. As trustee, they were entitled to balance 5/16th share. The executors to the estate of Munni Devi leased out the property vide an indenture of lease dated February 29, 1976 to one Durgadas Moondhra. The said lease expired by efflux of time when the Bhagwani, plaintiffs No. 2, 3, 4 and 5 and the defendant No.8 jointly filed a suit for recovery of possession. Durgadas also filed a suit for specific performance. Both the suits were heard analogously when the Learned Assistant District Judge, Second Court, Alipore directed recovery of khas possession. The said lease expired by efflux of time when the Bhagwani, plaintiffs No. 2, 3, 4 and 5 and the defendant No.8 jointly filed a suit for recovery of possession. Durgadas also filed a suit for specific performance. Both the suits were heard analogously when the Learned Assistant District Judge, Second Court, Alipore directed recovery of khas possession. Durgadas filed an appeal wherein the Division Bench of this Court stayed the execution of the decree. Being aggrieved, Sarawgees filed a Special Leave Petition before the Apex Court, where the Apex Court imposed terms on Durgadas. The appeals were pending when the present suit was filed. One Kishore Kumar Jhunjhunwala and Dilip Kumar Jhunjhunwala being the sister’s son of the plaintiffs and the defendant No.8 coerced the plaintiff No.1 to agree to execute a Power of Attorney to deal with his share in the property. The plaintiff No.1 agreed to sell his undivided share at Rs.40 lakhs. It subsequently transpired he executed a Conveyance conveying his undivided share at a consideration of Rs.1.9 lakhs. Subsequently, there had been a Deed of Rectification curing the defects that were highlighted in paragraph 29 of the plaint. On the above allegations the plaintiffs filed a suit being Title Suit No.43 of 1993 inter-alia praying for a declaration that the Deed of Conveyance dated July 25, 1992 executed by the plaintiff No.1 should be declared as null and void and delivered up as cancelled. The suit was subsequently transferred to the Court of learned Civil Judge (Senior Division) Third Court Alipore and renumbered as Title Suit No. 115 of 2004. The learned Judge heard the suit and decreed the suit cancelling the Deed of Conveyance dated July 25, 1992. Being aggrieved, the defendant No.1 filed the appeal being F.A. No. 83 of 2012. The other defendants being the added defendant No.9, added defendant No.10, added defendant No.11 and added defendant No.12 filed four appeals being F.A. No.103, 104, 105 and 106 of 2014 respectively. The appeals were heard on the above mentioned dates. Mr. Moloy Ghosh learned Senior Counsel appearing for the appellant in support of the appeal contended, the plaintiff No.1 Hiralal Sarawgee did not examine himself as witness. The plaintiff No.2 in his evidence did not disclose any fact that would be within his personal knowledge. The learned Judge held, the evidence of plaintiff No.2 was inadmissible being hearsay evidence. According to Mr. The plaintiff No.2 in his evidence did not disclose any fact that would be within his personal knowledge. The learned Judge held, the evidence of plaintiff No.2 was inadmissible being hearsay evidence. According to Mr. Ghosh, when the learned Judge held that the plaintiffs could not prove their case he could not have cancelled the conveyance. The learned Judge in paragraph 35 observed, “Hearsay cannot be subjected to the test of cross-examination and this is what has happened in this suit. plaintiff No.2 heard from other plaintiffs regarding what happened on 8th July, 1992, plaintiff No.1 was the only person who could be subjected to cross-examination on the allegations made against Gaggar on whose representation or fraudulent or deceptive representations plaintiff No.1 believed the document to be what it actually was not, and put his signatures on the document a copy of which is exhibit 2 and on other blank papers. None else could be subjected to cross examination nor was there any need. P.W.1 is not competent to prove facts which were specially within the knowledge of plaintiff No.1”. Once the learned Judge held, so as quoted above, he could not have decreed the suit in favour of the plaintiffs. Mr. Ghosh was critical about the observation of the learned Judge to the extent, “Unless disapproved it cannot be said that the facts are false. The defendant No.1 did not bring on record any evidence to disapprove facts relating to this issue”. Supporting his contentions Mr. Joydip Kar appearing in the next four appeals would contend, learned Judge was possibly swayed away by the alleged deficiency of consideration. Mr. Kar would submit, there had been spate of litigation hence, the purchasers took a risk to purchase the undivided share. He would rely upon two Orissa High Court Judgments: 1. Umakanta Das and another Vs. Pradip Kumar Ray and others reported in All India Reporter 1986 Orissa Page-196. 2. Dulana Dei alias Dolena Dei Vs. Balaram Sahu and two others reported in All India Reporter 1993 Orissa Page-59. Per contra, Mr. Arijit Bhardhan learned Counsel would submit, the vendor did not have power to convey the undivided share when Bhagwani devi having life interest, was alive. Pertinent to note, the plaintiff No.1 executed Conveyance on July 25, 1992 whereas Bhagwani died on December 22, 1992. According to Mr. Per contra, Mr. Arijit Bhardhan learned Counsel would submit, the vendor did not have power to convey the undivided share when Bhagwani devi having life interest, was alive. Pertinent to note, the plaintiff No.1 executed Conveyance on July 25, 1992 whereas Bhagwani died on December 22, 1992. According to Mr. Bardhan, no appropriate consideration passed in favour of the vendor that would justify execution of the Conveyance. He was critical about the Memo of Consideration appended to the Deed of Conveyance wherein the entire amount was said to have been paid in cash. He contended, despite being asked for, the defendants did not produce relevant documents. Hence, the learned Judge was right in drawing adverse inference against the defendants. He also attacked the Deed of Rectification dated November 2, 1999. According to him, it was also a result of coercion and undue influence on the plaintiff No.1 who was not literate enough to understand what he was doing. Mr. Bardhan would rely upon two Apex Court decisions: 1. Smt. Rukhamanbai Vs. Shivram & other reported in All India Reporter 1981 Supreme Court Page-1881. 2. Subhra Mukherjee and another Vs. Bharat Coking Coal Limited and others reported in All India Reporter 2000 Supreme Court Page-1203. He would rely heavily on paragraph 18 of the Apex Court decision in the case of Rangammal Vs. Kuppuswami and another reported in 2011 Volume-XII Supreme Court Cases Page-220 wherein the Apex Court dealt with the issue of degree of proof. Mr. Kar cited two Single Bench decisions of the Orissa High Court to support his contention, merely because the value of the property was low it would ipso facto not lead to conclusion, it was unfairly dealt with. While replying, Mr. Ghosh was very much critical about the conduct of Hiralal. According to him, Hiralal was duty bound to explain his conduct as to what had prompted him to execute the Conveyance. Having not discharged such onus, the plaintiff No.1 or his supporters being the other plaintiffs were not entitled to the decree that the learned Judge erroneously passed in favour of the plaintiffs. After the hearing was concluded, the respondent filed a compilation of cases which are as follows: 1. Arjan Singh Vs. Kartar Singh & others reported in All India Reporter 1951 Supreme Court Page-193. 2. K. Venkataramiah Vs. A. Seetharama Reddy & Ors. reported in All India Reporter 1963 Supreme Court Page-1526. After the hearing was concluded, the respondent filed a compilation of cases which are as follows: 1. Arjan Singh Vs. Kartar Singh & others reported in All India Reporter 1951 Supreme Court Page-193. 2. K. Venkataramiah Vs. A. Seetharama Reddy & Ors. reported in All India Reporter 1963 Supreme Court Page-1526. 3. Smt. Rukhamanbai Vs. Shivram reported in All India Reporter 1981 Supreme Court Page-1881. 4. Usha Subbarao Vs. B.N. Vishveswaraiah and others reported in 1996 Volume-V Supreme Court Cases Page-201. 5. Gopal Krishnaji Ketkar Vs. Mohamed Haji Katif and others reported in All India Reporter 1968 Supreme Court Page-1413. 6. Subhra Mukherjee and another Vs. Bharat Coking Coal Limited and others reported in 2000 Volume-III Supreme Court Cases Page-312. 7. Rangammal Vs. Kuppuswami and another reported in 2011 Volume-XII Supreme Court Cases Page-220. 8. Macfoy Vs. United Africa Company Limited reported in 1961 Volume-III All England Law Reports Page-1169. 9. Nalini Kishore Choudhury Vs. Atul Chandra Chakrabarty Choudhury and others reported in 40 Calcutta Weekly Notes Page- 561. OUR VIEW: The property was admittedly a joint property. It was not a dwelling house. Defendant No.1 Hiralal sold his share to the appellants. Whether he was coerced or unduly influenced, would be within his special knowledge hence, Hiralal was the best witness to prove the case of the plaintiffs. Hiralal opted not to come to the box. No explanation was offered. The learned Judge proceeded in the matter in a right direction on the issue. He very rightly held, hearsay evidence that PW2 adduced, would be of no assistance unless there was corroboration from PW1 being Hiralal. We, however, join issue as to the peculiar way of approach that the learned Judge made while decreeing the suit. The learned Judge was of the view since the valuation of the property was doubtful there would be presumption of unfair deal and the doubt must be dispelled by the defendants. Having not done so, adverse inference should be drawn as against the defendants that would eventually lead to passing of a decree in favour of the plaintiffs. We do not find any support of such proposition of law from any Statute. The decisions in the case of Arjan Singh (supra) and K. Venkataramiah (supra), in our view, would have no relevance in the instant case. We do not find any support of such proposition of law from any Statute. The decisions in the case of Arjan Singh (supra) and K. Venkataramiah (supra), in our view, would have no relevance in the instant case. The decision in the case of Rukhamanbai (supra) and Usha Subbarao (supra) would deal with a situation as to the status of a property having a vested interest. In the case of Gopal Krishnaji Ketkar (supra) the Apex Court considered the implication of Section 114 of the Evidence Act. The Apex Court observed, a party in possession of best evidence, which would throw light on the issue in controversy, withholding it, Court ought to draw adverse inference against him notwithstanding that onus of proof does not lie on him. The decision in the case of Subhra Mukherjee (supra) and Rangammal (supra) would have some bearing on the issue where according to the Apex Court burden of proof would lie on the person, who would allege a transaction as sham or bogus. These two decisions would squarely help the appellant. The Apex Court observed, “There can be no dispute that a person who attacks a transaction as sham, bogus and fictitious must prove the same. But a plain reading of question No. 1 discloses that it is in two parts; the first part says, whether the transaction in question is a bona fide and genuine one which has to be proved by the appellants. It is only when this has been done that the respondent has to dislodge it by proving that it is a sham and fictitious transaction. When the circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is not bona fide and genuine, it is unnecessary for the Court to find out whether the respondent has led any evidence to show that the transaction is sham, bogus or fictitious.” In the present case the plaintiff prayed for a declaration that the document was sham hence, the plaintiff would have to discharge the initial onus in the cases before the Apex Court. It was other way round where the plaintiff prayed for a declaration, the transaction was good he was to prove, it was not a sham transaction. Learned Judge failed to appreciate, how these two decisions would help the respondent. It was other way round where the plaintiff prayed for a declaration, the transaction was good he was to prove, it was not a sham transaction. Learned Judge failed to appreciate, how these two decisions would help the respondent. The decision in the case of Macfoy (supra), in our view, would have no relevance. In the case of Nalini Kishore Choudhury (supra) the Court found, there was gross inadequacy of price as would shock the conscience of the Court and it would amount to be conclusive and decisive evidence of fraud. Mr. Kar, appearing for some of the appellants, tried to justify the price. Location wise, the property would have fetched a price which would be nowhere near the price for which the property was sold however, considering the factors that Mr. Kar would highlight, more particularly the fact, the purchaser was in fact buying litigation, the contention of Mr. Kar cannot be brushed aside. We may look at this problem from a different angle. The plaintiff filed a suit for declaration to the effect; transaction relating to the suit property was sham and a result of fraud, coercion and undue influence. Hence, the plaintiff must discharge the initial onus. In any civil action, the plaintiff has to discharge his initial onus so that burden could shift on the defendant. In the instant case, the learned Judge categorically held, plaintiffs miserably failed to discharge their onus. The logic behind passing of the decree in the suit, could not be conceived of. So long the onus was not discharged by the plaintiff defendant could not be called upon to prove his defence. The appeals succeed and are allowed. The judgment and decree impugned herein is set aside. The suit is dismissed without however, any order as to costs. Appeals are disposed of accordingly without any order as to costs.