Burden of proof after full evidence and affidavits as evidence: Madras HC principles on adverse inference and admissibility.

Once both parties have adduced evidence, burden of proof is ordinarily not decisive except in exceptional cases; the court may assess the record as a whole and draw adverse inference from failure to produce better evidence. On the facts discussed, discrepancies in the plaintiff's case and supporting material for the defendants meant the concurrent findings on nominal and fraudulent transfer were left undisturbed. The text also states that an affidavit by a living person is not substantive evidence merely because it is filed in court; oral evidence should ordinarily be given in open court, and material must satisfy admissibility and relevance requirements before it can be relied upon.

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Issues: (i) Whether, after evidence was adduced on both sides, the burden of proof remained a decisive factor in determining the issue of fraudulent and nominal transfer. (ii) Whether the affidavit of a living person, not examined in the witness box, could be acted upon as admissible evidence.

Issue (i): Whether, after evidence was adduced on both sides, the burden of proof remained a decisive factor in determining the issue of fraudulent and nominal transfer.

Analysis: Once both sides had led evidence, the question of onus ceased to be decisive except in exceptional circumstances. The Court could assess the evidence as a whole and draw adverse inference from the failure of a party to produce better evidence. On the facts, the defendants' case was supported not only by affirmative evidence but also by discrepancies and gaps in the plaintiff's evidence.

Conclusion: The burden of proof contention did not warrant interference with the concurrent findings against the appellant.

Issue (ii): Whether the affidavit of a living person, not examined in the witness box, could be acted upon as admissible evidence.

Analysis: Oral evidence must ordinarily be given in open Court under the supervision of the Judge, subject to the limited exceptions provided for evidence by affidavit. An affidavit of a living person is not substantive evidence merely because it is filed in Court. Its contents must satisfy the requirements of admissibility and relevance under the Evidence Act, and material not falling within Section 32 could not be relied upon as evidence. The affidavit in question should have been excluded from consideration.

Conclusion: The affidavit was not properly admissible and ought not to have been relied upon.

Final Conclusion: The disputed transfer remained a question of fact, and the concurrent findings that it was nominal and fraudulent were not shown to suffer from such material error as to justify reversal. The second appeal therefore failed.

Ratio Decidendi: After both parties have adduced evidence, burden of proof is ordinarily not decisive except in exceptional circumstances, and an affidavit of a living person cannot be treated as substantive evidence unless it satisfies the recognised rules of admissibility and relevance.

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