The burden of proof in a case involving a bond shifts between the plaintiff and the defendant depending on the circumstances and evidence presented.

( 1 ) THE appellant's (sic) (respondent's?) suit was based on a bond for Rs. 880/ (Ex. pl.) under which the defendant is purported to have obtained a lean of Rs. 880/- in cash. The defendant denied that any cash consideration passed. He also pleaded a repayment of Rs. 398a. The trial Judge dismissed the suit. The first appellate Court has found that no cash consideration passed from the plaintiff to the defendant on the date of the execution of the bond but on the defendant's admission he found that a decree could be passed against him.

( 2 ) IT is argued by Shri Gupta that there was no case in the plaint nor in the statement of the plaintiff or his witnesses that there was any previous account under which the defendant was liable to pay Rs. 880/-, the defendant's admission should either have been taken into account as a whole or should have been ignored. But the lower Court has passed a decree on this basis without taking into consideration his objection that interest at a rate which was not allowable had been included and compound interest had also been charged. Learned counsel also argues that there was no admission as to the execution of the particular document which was the basis of the suit.

( 3 ) HAVING regard to paragraph 1 of the written statement, it is quite clear to me that the defendant admits to have executed a certain document, but he does not say that he did not execute the particular document referred to in paragraph 1 of the plaint. In the absence of such denial, it will be deemed that he admitted execution of the suit bond. Once the execution of the document is admitted, it is for the defendant to prove want of consideration.

( 4 ) WHEN, execution of a document is either admitted or proved, a natural presumption arises against the deb-for that he must have received consideration when he executed it. Here it must be clearly understood that the burden of proof is not stationary. The expression "burden of proof" Is used in 2 senses, i. e. , the burden of proving an issue or issues sometimes termed the 'legal burden', and the burden of proof as a matter of adducing evidence during the various stages of the trial. What is called the burden of proof on the pleading should not be con- fused with the burden of adducing evidence which is described as "shifting". See, observations in Narayan v. Gopal, AIR 1960 SC 100; Pickup v. Thames insurance co. , (1878) 3 QBD 594; Lakshmana v. Venkateswarlu, 76 Ind App 202 : (AIR 1949 PC 278); 15 Halsbury (Simond) 267; Huyton-with-Roby Urban District council v. Hunter, (1955) 2 All E. R. 398 at p. 400 per Denning L. J. Thase two aspects of the burden of proof are enunciated in sections 101 and 102 of the evidence Act, Section 101 shows that the initial burden of proving a prima facie case in his favour is on the plaintiff. When he gives such evidence as will support a prima facie case, the onus shifts, on the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff.

( 5 ) IN the case of a bond when execution and consideration are both denied by the defendant, the primary burden to prove execution as well as consideration is on the plaintiff. But once he proves that the signature or the thumb mark is of the defendant, the burden shifts to the latter. That burden the defendant can discharge either by establishing circumstances as would vitiate the contract, e. g. fraud, coercion, undue influence, mistake, want or failure of consideration or he can make out circumstances to show that no presumption fairly arises against him under section 114 of the Evidence Act. As soon as the defendant succeeds in this, then the burden shifts back to the plaintiff. The recital in the document that the defendant has received consideration is no doubt evidence against him but is not conclusive and the defendant can show that the recital is not correct. The defendant can discharge h