Lecture-Burden of Proof
Lecture-Burden of Proof
UNDER
INDIAN EVIDENCE ACT, 1872
Part III of the Evidence Act, 1872 deals with Production and Effect of Evidence.
When a party approaches an advocate to file a suit or initiate any legal proceedings, the first thing which the
advocate must ascertain is on whom the burden to prove the facts lie –
liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a
person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations
(a)A desires a Court to give judgment that B shall be punished for a crime which A says B has
(b) 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.
Section 101 is based on the maxim – “Ei Incumbit Probatio Qui Dicit, Non Qui Negat”, i.e. the burden of
proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the
This rule of convenience has been adopted in practice, not because it is impossible to prove a negative, but
because the negative does not admit of the direct and simple proof of which the affirmative is capable.
Moreover, it is but reasonable and just that the suitor, who relies upon the existence of a fact, should be
In the application of this rule, regard must be had to the substance and effect of the issue, and not to its
grammatical form, for in many cases the party, by making a slight alteration in the drawing of his
pleadings, may give the issue a negative or affirmative form, at his pleasure.
The party, on whom the burden of proof lies must, in order to succeed, establish a prima facie case. He
cannot, on failure to do so, take advantage of the weakness of his adversary’s case. He must succeed by
the strength of his own right and the clearness of his own proof. He cannot be heard to say that it was too
The illustrations to the section show that the provision applies to civil as well as criminal cases.
In Narain Singh Vs. State [(1997) 2 Crimes 464 (Del.)], it was held that, it is well settled that the prosecution
can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot
take advantage of the weakness of the defence. Nor can the court on its own make out a new case for the
The Supreme Court in Jarnail Singh Vs. State of Punjab [AIR 1996 SC 755] held that in a criminal case,
the burden to prove the guilt of the accused beyond all reasonable doubt always lies on the prosecution,
and therefore if the prosecution fails to adduce satisfactory evidence to discharge the burden, it cannot rely
Section 102. On whom burden of proof lies. –– 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
(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.
Section 101 contains the principle of burden of proof as to existence of certain facts and Section 102
The elementary rule in Section 101 that party who approaches court must prove his case is inflexible.
In terms of Section 102 the initial onus is always on the Plaintiff and if he discharges that onus and makes
out a case which entitles him to relief, the onus shifts to the defendant to prove those circumstances, if
In Triro Vs. Dev Raj [AIR 1993 J&K 14], there was a delay in filing the suit, the defendant had taken a plea
of limitation period. Since the plaintiff was in position to know the cause of delay, the burden of proving
in civil cases:
“Onus is always on a person who asserts a proposition or a fact which is not self-evident. To assert
that a man who is alive was born requires no proof. The onus is not on the person making the
assertion, because it is self-evident that he had been born. But to assert that he was born on a
certain date, if the date is material requires proof: the onus is on the person making the assertion.
Now, in conducting any inquiry, the determining tribunal will often find that onus is sometimes
on the side of one contending party, sometimes on the side of the other, or, as it is often expressed,
“It is also well to bear in mind that there is an essential distinction between “burden of proof”
and “onus of proof”; burden of proof lies upon the person who has to prove a fact and it never
shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation
of evidence (see Raghavamma v. Chenchamma, AIR 1964 SC 136). Burden of proof has two
distinct meanings, namely, (i) the burden of proof as a matter of law and pleadings, and (ii) the
burden of proof as a matter of adducing evidence. Section 101 of the Evidence Act deals with the
former and Section 102 of the Evidence Act with the latter. The first remains constant but the
second shifts. In a claim application, therefore, the burden of proof, in the first sense, certainly
lies on the claimant. If he examines himself and his witness, if any, and if the evidence, tested in
the light of the principles set out above, is found to be acceptable, the onus shifts on the tortfeasor
to prove those circumstances, if any, which dislodge the assertions of the claimants. If the
tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the
evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has
established the case and, on that basis, to make a just award it would thus appear, that though
the legal burden, - the burden as a matter of law and pleadings - remains constant on the
claimant, the burden as a matter of adducing evidence changes often times as the trial of the
In State of Maharashtra Vs. Wasudeo Ram Chandra Kaidalwar [(1981) 3SCC 199], it was held that the
expression “burden of proof has two distinct meanings (1) the legal burden i.e., the burden of
establishing the guilt; and (2) the evidential burden i.e., the burden of leading evidence”.
There are two theoretical concepts applicable to burden of proof:
(i) Onus Probandi – The obligation to prove an assertion or allegation that one makes. It is a general
rule that a party who alleges the affirmative of any proposition shall prove it.
(ii) Factum Probans – A fact offered in evidence as proof of another fact. It means the actual
In civil cases the burden of proof is determined on the basis of records produced before the courts such as
In criminal cases the burden to prove existence of every ingredient of the offence is on the prosecution.
The burden to establish the case is the initial burden. The burden to start adducing evidence is the second
stage.
The right to begin follows onus probandi. It assumes importance in the early stage of the case. The question
of onus of proof has greater force, where the question is, which party is to begin.
The term onus probandi, in its proper use, means that if a fact has to be proved, the person whose interest
it is to prove it should adduce some evidence, however slight, upon which a court could find the fact he
It means that the evidence he lays before the court should be sufficient, if not contradicted to form the
(i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning
Order 18 CPC
Rule 1 – The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff
and contends that either in point of law or on some additional facts alleged by the defendant the
plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right
to begin.
Rule 3 - Where there are several issues, the burden of proving some of which lies on the other party,
the party beginning may, at his option, either produce his evidence on those issues or reserve it by way
of answer to the evidence produced by the other party; and, in the latter case, the party beginning may
produce evidence on those issues after the other party has produced all his evidence, and the other
party may then reply specially on the evidence so produced by the party beginning; but the party
In a civil suit the burden is fixed once pleadings are complete – Issues are fixed. Once the burden is fixed
On the other hand in criminal cases there may not be pleadings. Police files its final report/charge sheet and
the court frames charges. It is well established that in criminal cases the burden to establish the case –
(i) Presumptions;
(iii) Estoppels
This expression means two different things:
Firstly, it means sometimes that a party is required to prove an allegation before judgment can be
Secondly, it means that on a contested issue one of the two contending parties has to introduce
evidence.
The burden of proof is of importance where by reason of not discharging the burden which was put upon
it, a party must eventually fail (Sec 102). This burden will, at the beginning of a trial, lie on one party, but
during the course of the trial it may shift from one side to the other.
Examples/Case Laws:
1. Where the person claiming tenancy produced a certified copy of admission of his tenancy given
by landlord, burden of proof lay on the landlord to disprove the admission. [Damu Ganu Bendale
to establish his plea would be on the tenant. [Hardit Singh Chadha v Jagtar Singh Grover, AIR
3. In a claim of damages for breach of contract, the burden is on the claimant to show the basis on
which the damages claimed by him have been quantified. [Usha Beltron Ltd v Nand Kishore
4. Where a sale deed was alleged to be forged and fabricated and, therefore, the party who made such
allegation had to prove it, the court said that it was not proper for the court to shift the burden of proof
because of hardship and require the other party to prove even to begin with that the allegation was false.
5. Even total silence of the accused as to any defence on his part does not lighten the prosecution’s
burden to prove its case satisfactorily. [Bishandas v State of Punjab, AIR 1975 SC 573]
6. Where the defendant said that he had put his signature only on a blank paper, it was held that the
evidence adduced by the plaintiff to the effect that the defendant had executed a document, if
found reliable, would discharge the burden of the plaintiff and put the burden on the defendant
to show that he had not executed any document. [Kuttadan Velayudhan Re, AIR 2001 SC 123]
7. In a suit for recovery of possession based upon the plaintiff’s possessory title, onus is on him to
establish the fact of his possession within the preceding 12 years from the date of adverse
possession. Once this fact was established, the onus would be shifted on to the defendant to show
that he was entitled to retain his possession on the basis of a superior title. [Kantilal v Shanti
8. A woman gifted her property to her grandson. The lady was more than 90 years, but she was fully
intelligent and not infirm. The gift was due to the flow of a natural love as the donee had lost his
mother and the step mother started torturing him. The suit was filed by the donor lady and her son. The
burden of proof was held to be on the person who alleged that there was a fraud in the
9. The plaintiff in a suit for declaration of title and possession could succeed only on the strength of
its title and that could be done only by adducing sufficient evidence to discharge the onus on it,
irrespective of the question whether the defendants have proved their case or not. Even if the title set
up by the defendants is found against them, in the absence of establishment of the plaintiff’s own
title, the plaintiff must be non-suited. [UOI v Vasavi Cooperative Housing Society Ltd, (2014) 2
SCC 269]
Section 103. Burden of proof as to particular fact. ––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
Illustration
A prosecutes B for theft, and wishes the Court to believe that B confessed the theft to C. A must prove
the confession.
B wishes the Court to believe that, at the time in question, he was elsewhere. B must prove it.
In State of Haryana Vs. Sher Singh [AIR 1981 SC 1021], it was held by the Supreme Court that the plea of
In Habib Ullah Bhat vs. Juna, AIR 2003 J&K 32, the plaintiff filed a suit for a declaration that the gift
deed relating to his property was null and void because at the time of its execution he was a minor. His
birth certificate was neither exhibited nor proved through other witnesses. It was for him to prove his
age and not for the defendant. The suit was filed 3 years after attaining majority. He was held not entitled
In a claim against the railway for damage to consignment, it was contended by the railway that the damage
was due to rainfall, i.e., an act of God. The court said that rain is normally an expected natural
phenomenon against which precautions can be taken for saving property. Railway would have to prove
what care and caution was taken and how it could be said that the operation of nature was irresistible
[General Manager, Southern Rly vs. Agarwal Traders, AIR 2001 Kant 366]
In a claim against a carrier for non-delivery of goods, the court said that the burden was not on the plaintiff
but on the defendant carrier to prove that there was no negligence on his part [Karnataka Transport
Corp vs. National Insurance Bank Ltd, AIR 1999 Kant 233.]
Burden of Proof in Execution of a Document:
The burden of proving execution of a document is on the party relying on the document, unless, its
execution is admitted.
The burden of proof that a Will has been validly executed and is a genuine document is on the
propounder. Merely because a Will is registered its genuineness cannot be presumed. The registration of a
Will does not shift the onus of proof from its propounder to the challenger when doubt is raised.
In Malliga Vs. Santhamani [AIR 2009 (NOC) 1268 (Mad.)], where execution of sale agreement was denied
by defendant stating it to be forged one, the court held that the burden of proof lies on plaintiff to prove
valid execution of sale agreement and not on the defendant to disprove same.
Section 104. Burden of proving fact to be proved to make evidence admissible. –– The burden of
proving any fact necessary to be proved in order to enable any person to give evidence of any other
Illustrations
(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the
This section should be read with second part of Section 136 of the Evidence Act and with illustrations
Section 136. Judge to decide as to admissibility of evidence. ––When either party proposes to give
evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the
alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other
fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned,
unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge
may, in his discretion, either permit evidence of the first fact to be given before the second fact is
proved, or require evidence to be given of the second fact before evidence is given of the first fact.
Illustrations
(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement
is relevant under section 32. The fact that the person is dead must be proved by the person proposing to prove
lost must be proved by the person proposing to produce the copy, before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he
denied the possession of the property. The relevancy of the denial depends on the identity of the property.
The Court may, in its discretion, either require the property to be identified before the denial of the possession
is proved, or permit the denial of the possession to be proved before the property is identified.
(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of fact in issue. There
are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded
as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is
Where the rented premises were found to be in the possession of a stranger and not the tenant, the
burden was upon the tenant to disprove the inference of sub-letting as he alone had the special
knowledge of facts. [Gur Dayal Khanna v Malti Devi, AIR 1993 All 90.]
In dealings with pardanashin women there is a presumption that the contract was the result of
undue influence. Hence, the burden lies on the other party to prove that the transaction was fair
and free. [Chaitan Charan Parida v Maheshwar Parida, AIR 1991 Ori 125]
A pardanashin woman transferred her lands to her son subject to certain conditions as to
maintenance etc. But the deed was altered so as to remove the conditions, the burden to prove that
the alteration was with the consent of the woman was upon those who were trying to take
advantage of the deed. [Rankanidhi Sahu v Nandkishore Sahu, AIR 1990 Ori 64]
An illiterate woman contended that the sale deed which she executed was not read over to her. It
was held that the burden was upon the other party to prove that she was made fully aware of the
contents of the document. [Sri Siya Ram v Lilawati, AIR 1990 All 75]
Where the railways contention was that the person who died by falling from a train was not a
bona fide passenger being without ticket, the court said that it was for the railways to prove that
accused of any offence, the burden of proving the existence of circumstances bringing the case within
any of the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception
or proviso contained in any other part of the same Code, or in any law defining the offence, is upon
him, and the Court shall presume the absence of such circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature
(b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power
(c) Section 325 of the Indian Penal Code provides that whoever, except in the case provided for by
section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the
(i) In Rizan Vs. State of Chhattisgarh [AIR 2003 SC 976], it was held that the burden of establishing
the plea of self-defense is on the accused and the burden stands discharged by showing
(ii) In Samudra Rajan Vs. State of Tamil Nadu [(1997) 2 Crimes 185 (Mad.)], it was held that when
the prosecution has established its case, it is incumbent upon the accused under Section 105 to
The basic principles underlying the subject of proving defence or exception were restated by the Supreme
“The doctrine of burden of proof in the context of the plea of insanity may be stated in the
following propositions:
(1) the prosecution must prove beyond reasonable doubt that the accused had committed the
offence with the requisite mens rea; and the burden of proving that always rests on the
(2) there is a rebuttable presumption that the accused was not insane when he committed the
crime; the accused may rebut it by placing before the court all the relevant evidence oral,
documentary or circumstantial, but the burden of proof upon him is no higher than that which
(3) even if the accused was not able to establish conclusively that he was insane at the time when
he committed the offence, the evidence placed before the court may raise a reasonable doubt in
the mind of the court as regards one or more of the ingredients of the offence, including mens rea
and in that case the court would be entitled to acquit the accused.”
The principles stated by the Supreme Court were restated by Fazal Ali J, in Rabindra Kumar Dey v State
“In our opinion three cardinal principles of criminal jurisprudence are well settled, namely:—
(1)that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and
it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
(2)that in a criminal trial the accused must be presumed to be innocent unless he is proved to be
guilty; and
the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and
circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a
ticket is on him.
The principle contained in Illustration (a) of Section 106 is an application of principle of Res Ipsa Loquitur,
In Byrne vs Boadle, 159 E.R. 299 this maxim was used for the first time where the complainant was injured
by a barrel that dropped from the window of the defendant. In this case Pollock, Chief Baron observed:
“There are certain cases of which it may be said res ipsa loquitur, and this seems one of them. I
think it would be wrong to lay down as a rule that in no case can presumption of negligence arise
from the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and
fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty
of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that
such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could
not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by
it must call witnesses from the warehouse to prove negligence seems to me preposterous.”
https://law.justia.com/cases/foreign/united-kingdom/159-eng-rep-299-1863.html
It has been considered by the Privy Council that the burden of proving negligence always rests with the
plaintiff, even when the maxim res ipsa loquitur applies [Ng Chun Pui v Lec Chuen Tat, 1988 CLY 1582]
Once the initial burden of showing the setting of the mishap is discharged, this maxim will relieve the
Wakelin v. London & South Western Rly Co., (1886) 12 App Cas 41, in this case under the Fatal Accidents
Act, 1846, the allegation was that the plaintiff’s husband met his death owing to the negligence of the
railway company. The only evidence offered was that the body was found lying by the side of the
railway line near a level crossing. Lord Watson stated that the liability of a defendant must rest in the first
“some negligent act or omission on the part of the company or their servants which materially
contributed to the injury or death complained of…. Mere allegation or proof that the company
were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or
omissions, which might possibly have occasioned injury to somebody, but had no connection
whatever with the injury for which redress is sought, and therefore the plaintiff must allege and
prove, not merely that they were negligent, but that their negligence caused or materially
2. There is a lack of evidence, or the evidence presented before the court is insufficient to establish
3. The defendant owes a duty of care towards the plaintiff, which he has breached.
Karnataka [AIR 1979 SC 1848], the Kerala High Court held that where a live wire was hanging on the
road from an electric pole, it must be presumed that it must have been due to negligent management
Illustration (b) A is charged with travelling on a railway without a ticket. The burden of proving that
In Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 it was held that:
“Section 106 is an exception to Section 101……….. This (Section 101) lays down the general rule
that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not
intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases
in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to
establish facts which are “especially” within the knowledge of the accused and which he could
prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that
are preeminently or exceptionally within his knowledge. If the section were to be interpreted
otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on
the accused to prove that he did not commit the murder because who could know better than he
whether he did or did not. It is evident that cannot be the intention and the Privy Council has
twice refused to construe this section, as reproduced in certain other Acts outside India, to mean
that the burden lies on an accused person to show that he did not commit the crime for which he
from their house at night. The next day their bodies were found riddled with gunshot injuries. The
circumstances found sufficient were, amongst others, that the incident had taken place during the period when
the Punjab was boiling with terrorist activities; that the terrorists treated the house of the deceased as the
home of police tout; that the accused had gone to the house of the deceased armed with AK-47 rifles and
forcibly taken away the two boys; that the deceased then did not return home but their bodies were
found the next morning riddled with bullets. The Court held that what happened after the two boys were
abducted was within the exclusive knowledge of the accused and that they did not tell the Court as to what
they did with the boys after they abducted them. The accused persons were convicted as they failed to
discharge the burden caste upon them by Section 106 of the Evidence Act.
In Ram Ghulam Chaudhary and Ors. v. State of Bihar, AIR 2001 SC 2842, the Supreme Court stated
that:
“This is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was
brutally assaulted and then a chhura blow was given on the chest. Thus, Chhura blow was given
after Bijoy Chaudhary had said “he is still alive and should be killed”. The Appellants then
carried away the body. What happened thereafter to Krishnanand Chaudhary is especially
within the knowledge of the Appellants. The Appellants have given no explanation as to what
they did after they took away the body. Krishnanand Chaudhary has not been since seen alive.
In the absence of an explanation, and considering the fact that the Appellants were suspecting
the boy to have kidnapped and killed the child of the family of the Appellants, it was for the
Appellants to have explained what they did with him after they took him away. When the
abductors withheld that information from the Court there is every justification for drawing the
inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not
be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond
reasonable doubt, but the section would apply to cases like the present, where the prosecution
has succeeded in proving facts from which a reasonable inference can be drawn regarding death.
The Appellants by virtue of their special knowledge must offer an explanation which might lead
the Court to draw a different inference. We, therefore, see no substance in this submission of Mr.
Mishra.”
In State of Rajasthan Vs. Kashi Ram [AIR 2007 SC 144], the Supreme Court held that the provisions of
Section 106 are unambiguous and categoric in laying down that when any fact is especially within the
knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with
the deceased, he must offer an explanation as to how and when he parted company. He must furnish an
explanation which appears to the court probable and satisfactory. If he does so he must be held to discharge
his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to
holding the custody to show how the captive had died [Dalip Singh Vs. State of Haryana, AIR 1993 SC
2119 ].
In Swamy Shradhananda Vs. State of Karnataka [AIR 2007 SC 2531], the deceased died under unnatural
circumstances in her bedroom, which was occupied only by her and her husband, law requires the
husband to offer an explanation in this behalf. Absence of any explanation by the husband would lead to
the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the
Section 108. Burden of proving that person is alive who has not been heard of for seven years. ––
[Provided that when] the question is whether a man is alive or dead, and it is proved that he has not
been heard of for seven years by those who would naturally have heard of him if he had been alive, the
burden of proving that he is alive is shifted to the person who affirms it.
Sections 107 and 108 must be read together because the latter is only a proviso of the rule contained in the
former, and both constitute one rule when read together [State of Punjab Vs. Bachan Singh, AIR 1956 Ajmer
2].
Section 109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal
and agent. –– When the question is whether persons are partners, landlord and tenant, or principal
and agent, and it has been shown that they have been acting as such, the burden of proving that they
do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person
When a juridical relation is once established, it is enough generally for a party relying upon such relation to
show its establishment, and the burden is then on the opposite party to show that the relation has ceased.
Where a partnership is once shown to exist, the burden of proving that it has ceased to exist is on the person
would have been an act of the firm, if done before the dissolution, until a public notice of dissolution is given
anything of which he is shown to be in possession, the burden of proving that he is not the owner is on
The section provides that if a person is shown to be in possession of something there is the presumption that
he is the owner. It is founded on the principle that possession prima facie is proof of ownership.
“Possession is a good title, nothing less against all but the true owner [Asher Vs. Whitlock, 1 QB 16]”
A person in peaceful possession of land has as against every one but the true owner, an interest capable of
the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts
Before the presumption of title from long possession can be called in aid the possession must have been
prima facie lawful, long and continuous so as to lead to an inference that the person is possession really has
For the purposes of this section possession must be such as leads to an inference of title, mere undisturbed
user for some time being insufficient [Suraji Tulaji Vs. Secretary of State, AIR 1937 Bom 193].
Physical contact or occupation is not necessary to complete physical possession. A person maybe in
possession either by himself, cultivating the land or by having it cultivated by tenants. Receipt of rents and
enjoyment, and it is presumed to be with the owner unless definite evidence of acts of possession by another
person is forthcoming.
When the facts disclose no title in either party, possession alone decides.
Section 111. Proof of good faith in transactions where one party is in relation of active confidence. ––
Where there is a question as to the good faith of a transaction between parties, one of whom stands to
the other in a position of active confidence, the burden of proving the good faith of the transaction is
Illustrations
(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The
(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the
son. The burden of proving the good faith of the transaction is on the father.
The words “active confidence” in the Section indicate that the relationship between the parties must be such
that one is bound to protect the interest of the other. A legal advisor stands in a fiduciary position to his client,
a doctor to his patient, a parent to his child, an agent to his principal, and whenever a transaction between
such parties is questioned, the burden of proving the good faith of the transaction is on the party who stands
(a) any area declared to be a disturbed area under any enactment, for the time being in force,
making provision for the suppression of disorder and restoration and maintenance of public
order; or
(b) any area in which there has been, over a period of more than one month, extensive disturbance
and it is shown that such person had been at a place in such area at a time when firearms or explosives
were used at or from that place to attack or resist the members of any armed forces or the forces
charged with the maintenance of public order acting in the discharge of their duties, it shall be
presumed, unless the contrary is shown, that such person had committed such offence.
(2) The offences referred to in sub-section (1) are the following, namely: ––
(a) an offence under section 121, section 121A, section 122 or section 123 of the Indian Penal Code (45
of 1860);
(b) criminal conspiracy or attempt to commit, or abetment of, an offence under section 122 or section
Section 111A was inserted after Section 111 by Amendment Act of 1984. The amendment was made through
the same ordinance through which the Government established special courts in terrorist affected areas. This
Section puts the onus of proof of innocence on the accused person in cases involving terrorist activities.
However, the onus on the accused arises only when the prosecution is able to establish all necessary
ingredients contained in the Section 111A, which may give rise to presumption against the accused. If
prosecution is unable to satisfy the court about existence of all necessary ingredients contained in the Section,
“Under Section 111A of the Indian Evidence Act, a presumption can be drawn against a person
who is accused of having committed an offence punishable under Section 122 of the Indian Penal
Code. It can be presumed that a person charged under Section 122 of the Indian Penal Code, is
guilty if it is shown that he had been in an area declared to be a disturbed area and where firearms
or explosives were used or found to attack or resist the members of any armed forces or forces
charged with the maintainance of public order, while discharging of their duties. However, the
prosecution in this case has not established that the area from which the accused persons were
arrested was a disturbed area or that the accused had used the firearms against persons charged
with maintaining law and order in that area or the armed forces. Therefore, such a presumption
under Section 111A of the Indian Evidence Act also cannot be drawn in the present case.”
The general rule that a party who desires to move the court must prove all facts necessary for that purpose (sections 101–105) is subject to two
exceptions:—
(a) he will not be required to prove such facts as are especially within the knowledge of the other party (sec on 106); and
(b) he will not be required to prove so much of his allega ons in respect of which there is any presump on of law (sec ons 107–113), or in some
For example, a very old man donated land and later sued for possession on the ground that the gi was not voluntary. The burden was upon the
donee.