§ SECTION 105 · BSA 2023 · CHAPTER VII — BURDEN OF PROOF

On whom burden of proof lies

The practical test for locating the burden. In a suit or proceeding, the burden of proof lies on the person who would fail if no evidence at all were given on either side.

How to read Section 105

Imagine no one leads any evidence → whoever would then lose carries the burden.

The test

Imagine that no evidence at all is led — by either side.

The loser

Ask who would then fail on the record as it stands.

The burden

That person carries the burden of proof.

The bare Act

The section in its own words — the rule and two illustrations.

Section 105 · verbatim

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.

Illustrations

(a) 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.

(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.

In short: § 104 says the one who asserts must prove; this section gives the working test for finding, on any given issue, whose duty that is. Strip the case down to the pleadings and suppose nobody leads any evidence. Whoever would lose in that bare state must be the one to prove — the burden is his. It need not sit on the plaintiff: where a defendant admits the claim but sets up a fresh fact to defeat it (say, fraud), the admitted claim would carry the plaintiff on an empty record — so the defendant must prove that fresh fact.

→ This carries forward IEA 1872 § 102 — the ‘who would fail’ test for locating the burden.

Glossary

would fail if no evidence

The party who would lose on a bare record bears the burden.

suit or proceeding

Any case — civil or otherwise — before the court.

retain his possession

B already holds the land — he keeps it unless A proves his claim.

execution of the bond

That the bond was made and signed — here admitted.

obtained by fraud

A fresh fact B raises to defeat an admitted bond.

on either side

Treating both parties’ proof as absent.

The picture

Empty the record of all evidence — whoever would lose must be the one to prove.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The testThe two illustrations

the testEmpty the record — whoever would lose bears the burden

In one lineIn a suit or proceeding, the burden of proof lies on the person who would fail if no evidence at all were given on either side.

The burden of proof in a suit or proceeding lies on that personthe burden sits on one identified person…on any given issue in the case, one party bears the duty to prove…

who would fail if no evidence at all were given on either side.→ the one who would lose on an empty record…the one who, with no proof from anyone, would lose — that is who must prove.

ExampleA defendant in possession need lead nothing until the plaintiff proves title — on an empty record the plaintiff loses, so the plaintiff bears the burden.

✗ Not thisThe test is not ‘whoever spoke first’. It asks who would actually lose if the record stayed empty — which can place the burden on the defendant.

the two illustrationsLand: burden on A (plaintiff) · Bond: burden on B (defendant)

In one line(a) B keeps the land by default, so A must prove his claim; (b) the admitted bond would carry A, so B must prove the fraud — the burden shifts to the defendant.

(a) 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.(a) possession stands → burden on Aon an empty record B keeps the land, so A must prove the will left it to him.

(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.(b) admitted bond carries A → burden on Bthe bond is admitted, so A wins on an empty record; the fraud is B’s to prove.

ExampleIn (b) the bond’s execution is admitted, so A would win doing nothing. The live issue is the fraud — a fresh fact B raised — so the burden is B’s.

✗ Not thisThe burden is not fixed on the plaintiff. Where the defendant raises a fresh fact (fraud) that alone would change the result, it is his to prove.

Connected provisions

§ 104 · back

IEA 1872, § 102

Carried forward — the ‘who would fail’ test.

Bharatiya Sakshya Adhiniyam, 2023 — Section 105: On whom burden of proof lies