Report No. 69

IV. Scheme of sections 101-104

45.16. General principle.-

The general principle underlying the sections in this Chapter is that the party wishing to establish, before the Court, the truth of certain facts, must prove them (section 101). In other words, a party, who desires to move the Court, must prove all facts necessary for that purpose (sections 101-105). This general rule is; however subject to two exceptions (in addition to the general rule that facts admitted or judicially noticed need not be proved):-

(a) A party need not prove such facts as are especially within the knowledge of the other party (section 106);

(b) A party need not prove so much of his allegations in respect of which there is any presumption of law (sections 107-113), or, in some cases, of fact (section 144) in his favour.

45.17. Sections 101 to 104-Brief scheme.-

The scheme of the principal sections is as follows: Section 101 introduces us to the topic of burden of proof. Section 102 deals with the general burden of proof, vide the words "in a suit or proceeding". The section seems to deal with the burden of persuasion or the legal burden. Section 103 deals with the burden of proof of particular facts. Section 104 deals with the burden of proof of introductory facts. With the burden of proving the specific facts dealt with in each section. This group may be said to extend up to section 111.

V. Some Broad Propositions

45.18. Case law on sections 101-104.-

It may be convenient to set out some broad propositions deducible from the reported cases on sections 101-104-

(a) It is incumbent on each party to discharge the burden of proof which rests upon him1. Where the burden of proof lies on a party suing as a plaintiff and is not discharged, the suit must be dismissed.2

(b) When the issue raised by the Court is in substance, whether the plaintiff's or defendant's story is true, it is possible that neither of the stories may be true. Usually, really material question is-is the plaintiff's story true if the defendant's defence is a plea in confession and avoidance, namely, a plea which admits that the plaintiff's story is true but avoids it-then, if the defendant fails to prove his case, the plaintiff may recover. But if the defence is substantially an argumentative traverse of the truth of the plaintiff's story, not admitting that one word of it is true and setting up certain things perfectly inconsistent with it, then the truth of the plaintiff's story becomes the real question. If the plaintiff's then does not prove the affirmative of his issue, the consequence is that he must fail, and the defendant may say, "it is wholly immaterial whether I prove my case or not; you have not proved yours".3-4

(c) Shifting burden.-The burden of proof, in the sense of the burden of introducing evidence to prove a particular fact may, and constantly does, shift during the trail. There are many cases in which the party on whom the burden of proof in the first instance lies may shift the burden to the other side, by proving facts giving rise to a presumption in his favour,5 or by showing an admission.6

(d) The answer to the question on whom the burden of proof rests, includes the answer to another question, which frequently causes great controversy in the preliminary stages of a case, viz. which party has the privilege, or incure the duty, of beginning.

(e) The amount of evidence required to shift upon a party the burden of displacing a fact may depend on the circumstances of each case.7

1. Baijnath v. Raghonath, (1892) 12 CLR 186 (193).

2. Appa Rao v. Subbanna, 1889 ILR Mad 60 (65).

3. Chandranath v. Ramjai, (1870) 6 BLR 303 (308).

4. Haji Khan v. Baldeo, 1901 ILR 24.

5. Mono v. Mathura, 1881 ILR 7 Cal 225 (231).

6. Bala v. Shiva, 1902 ILR 27 Born 271 (278) (Chandavarkar and Aston, JJ.).

7. assumbhoy v. Ahmedbhoy, 1887 ILR 12 Born 280 (309) (Jardine, J.).

VI. Sections 101 to 104

We may now consider the sections proper.

Section 101

Section 101 contains two propositions-

(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

The first proposition is based on the principle that the time of the Court ought not to be wasted in idle controversies nor should a party be dragged without factual basis. Illustration (a) to the section deals with a criminal prosecution. If A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. Illustration (b) relates to a civil proceeding. A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts. The section needs no change, not having raised any difficulty in practice.

Section 102

45.19. Under section 102, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustration (a) relates to the case where A sues B for land of which B is in possession, and which as A asserts, was left to A by the Will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A. In this case the burden rests on the plaintiff. In illustration (b), A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. From the illustrations, it would appear that the section deals with the "legal burden of proof"1-also called the burden of persuasion. The section needs no change.

1. See supra.

Section 103

45.20. Burden of proof as to Particular facts.-

Under section 103, 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.

Illustration (a)1is as follows:

A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.

B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it".

1. Sic. In the Act, as published in Gazette of India, 1872, Pt. IV, p. 1, there is r illustration (b).

45.21. The emphasis in the section is on particular facts. In relation to facts in issue, this section and section 102 yield the same result. But, in relation to other relevant facts-e.g., admissions-section 102 may not suffice-vide the words "in a suit or proceeding" in section 102. We have no further comments on the section.

Section 104

45.22. Burden of proving fact to be proved to make evidence admissible.-

Under section 104, the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wished to give such evidence. This section clearly deals with relevant facts which are not facts in issue. It really deals with the proof of certain preliminary facts which constitute a condition precedent to the production of a particular species of evidence.

This is clear from the illustrations to the section:-

(a) A wishes to prove a dying declaration by B. A must prove B's death.

(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.

The section needs no change.

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