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Onus of Proof.
Initial Burden on one who
takes affirmative of the
issue
• A party who wishes the court to give a judgement
on the existence of a fact should prove the fact.
• K. Prasad v. G.Prasad, A.I.R. 2001 Pat. 1 – A person
who questions a gift deed on the ground of fraud
has to prove that fact. In this case the legal heirs
who would have otherwise inherited the donated
property questioned it.
• Where a landlord seeks eviction on the ground of
bonafide personal need, burden lies upon him to
establish that he is genuinely in need of
accommodation. S. Benezer v. Velayudhan, A.I.R.
1998 S.C. 746.
Onus and Burden
• Burden of proof lie on the person who has to prove
a fact and it never shifts.
• Onus of proof shifts and it includes assertion of a
proposition or fact which is not self-evident
• R. Somabhai v. Babubhai, AIR 1982 Guj. 308 –
Burden of proof as a matter on law and pleadings
never shifts (section 101 – whoever desires any
Court to give judgement as to any legal right or
liability dependant on the existence of facts which
he asserts, must prove that those facts exists).
• Onus of proof as a matter of adducing evidence
shifts (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).
premises had been sub-let
by the tenant. The landlord
proved that somebody
other than the tenant was
using the premises. The
landlord had discharged
his initial burden.
Civil Cases and
preponderance of
probability
• The presumption of sub-letting
arises when the premises are used
by other persons other than tenant.
• A tenant will not allow anyone else
to stay within the premises without
consideration.
• The burden shifts on the tenant to
show whether the premises are sub-
let or not.
Section 105 Ind.
Evidence Act.
• When a person is accused of any
offence, the burden of proving the
existence of circumstances bringing
the case within any general
exceptions in IPC or special
exception or proviso of IPC is upon
him and the court shall presume the
absence of such circumstances.
• Section 105 does not indicate the
nature and standard of proof
required.
Section 105, continued
• The Evidence Act does not contemplate that the
accused should prove his case with the same
strictness and vigour as a prosecution is required
to prove in a criminal charge.
• V. Subhramani v. State of Tamil Nadu, AIR 2005 SC
1983 – the accused can discharge the burden of
proving right of private defence by showing the
preponderance of probabilities.
• Shah Guman Mal v. State of AP, AIR 1980 SC 793 –
the accused was prosecuted for possession of
smuggled gold under the Customs Act.
Case continued.
• The accused admitted that it was a
foreign metal and that it was
delivered to him by a certain person
whose identity he failed to disclose.
• It was held that the accused knew
who that person was and whether he
had any license and burden lay upon
him.
• From his refusal a presumption arose
under section 114 that the matters
were against him.
Defense can raise
reasonable doubt in the
minds of the Court
• In criminal cases the defendant is
not always required to prove the fact
beyond reasonable doubt, raising
reasonable doubt is enough.
• Following a serious dispute with his
workers, the owner was on way back
home by a jeep. Suddenly he saw
two of his workers raising their
hands to stop the jeep.
• They then tried to follow and close in
on the jeep.
The case continued
• In the apprehension that that they might
harm, the accused shot at them and they
died.
• The Supreme Court held that the evidence
on record did not establish that the jeep
was pelted with stones and damaged, but
it established a reasonable possibility of
the apprehension of personal harm.
• The circumstances justified the exercise
of private defence, but the limit was
exceeded. M. Ramzani v. State of Delhi,
AIR 1980 SC 1341.
Burden of proof of death
of person
• Section 107- When the question is whether
a man is alive or dead, and it is shown that
he was alive within thirty years, the burden
of proving that he is dead is on the person
who affirms it.
• In R v. Lumley, 1869 LR 1 CCR 196, the
prisoner, a woman was prosecuted for
bigamy. She married a man in 1836, left
him after seven years in 1843 and married
another in 1847.
• Nothing was heard of her first husband
after she left him.
Case continued
• The prosecution gave no evidence of his age, or of
the fact that he was alive.
• But the judge felt that just because he was alive for
four years before the marriage, there was the
presumption that he was still alive and
consequently the prisoner was convicted.
• On Appeal, the conviction was quashed. In an
indictment for bigamy, it is incumbent on the part
of the prosecution to prove that the husband or
wife was alive at the date of the second marriage.
• The existence of the party at the antecedent date
may not afford a reasonable inference that he is
living at the subsequent date.
• The law makes no presumption either way.
Burden of proving that a
person is alive who has not
been heard of for 7 years
• Section 108 – the burden is on the
person who affirms it.
• M Sharif v. Bande Ali, ILR, 1911, 34
All. 36, M mortgaged certain
property to the defendant in 1890.
Thereafter he disappeared and
nothing was heard of him again.
• He had no heir.
• His brother D, who should have
inherited the property, died about 14
years after M’s disappearance.
Case contiued
• The heirs of D filed a suit for redemption of
the mortgage and contended that as M
disappeared 18 years ago, he must be
presumed to have been dead for last 11
years, and D who was alive till a later date,
must be deemed to have succeeded him as
a heir.
• The Court held that there is no
presumption that M died in the first 7 years
or in the last 7 years. The presumption
merely is that he was dead.
Proof of good faith in
transactions.
• Section 111- where one party is in
relation of active confidence the
burden of proving the good faith is
on him.
• Daya Shankar v. Bachi, AIR 1982 All.
376 – The plaintiff’s uncle, being
childless, used to treat the plaintiff
as his own son.
• He was eighty years old.
• him into a railway hospital.