RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PATIALA, PUNJAB

The Project Submitted in Fulfilment of B.A.L.L.B. (Hons.),

Seventh Semester

TOPIC:
Burden of Proof under Section 111 of the Indian Evidence Act

Submitted to: Submitted by:

Dr. Manoj Sharma Priyansh Sharan
Roll no. 15021
Group – 3
B.A.L.L.B (Hons.) 4th Year
 Contents: -

Introduction: - ................................................................................................................ 3

General Principles of Burden of Proof .......................................................................... 5

Section 111 .................................................................................................................... 7

Proof of active confidence: ........................................................................................ 7

Indian Contract Act: ................................................................................................... 9

Fiduciary relationship: ............................................................................................... 9

Transaction with Pardanashin ladies:....................................................................... 10

References: - ................................................................................................................ 12

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 Introduction: -

The responsibility to prove a thing is called burden of proof. When a person is required
to prove the existence or truthfulness of fact, he is said to have the burden of proving
that fact. In a case, many facts are alleged and they need to be proved before the court
can base its judgment on such facts.

The burden of proof is the obligation on a party to establish such facts in issue or
relevant facts in a case to the required degree of certainty in order to prove its case. For
example, in a case of murder, prosecution may allege that all the conditions constituting
a murder are fulfilled. All such conditions are facts in issue and there is an obligation
to prove their existence. This obligation is a burden of proof. In general, every party
has to prove a fact that goes in his favour or against his opponent, this obligation is
nothing but burden of proof.1

The normal law relating to the Burden of Proof and its onus is given under the
provisions of the Indian Evidence Act, 1872. Chapter VII, S.101 to S.114 of Indian
Evidence Act deals with the provisions of "burden of Proof".

The word 'burden of proof' has not been defined in Evidence Act. It is a fundamental
principle of criminal jurisprudence that guilt of accused is to be proved by the
prosecution, and an accused should be presumed to be innocent.

Under Indian law, until and unless an exception is created by law, the burden of proof
lies on the person making any claim or asserting any fact. The term "burden of proof"
is used to mean two kinds of burdens: The burden of production (or the burden of
"going forward with the evidence") and the burden of persuasion.2

A "burden of persuasion" or "risk of no persuasion" is an obligation that remains on a

single party for the duration of the court proceeding. Once the burden has been entirely
discharged to the satisfaction of the trier of fact, the party carrying the burden will
succeed in its claim. For example, the presumption of innocence in a criminal case
places a legal burden upon the prosecution to prove all elements of the offense
(generally beyond a reasonable doubt), and to disprove all the defences except

1
Monir, Principles and Digest of the law of Evidence (14th ed., 2006)
2
Phipson on Evidence (7th ed. 1987)

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for affirmative defences in which the proof of non-existence of all affirmative
defences(s) is not constitutionally required of the prosecution.

The burden of persuasion should not be confused with the evidential burden, or burden
of production, or duty of producing (or going forward with) evidence which is an
obligation that may shift between parties over the course of the hearing or trial. The
evidential burden is the burden to adduce sufficient evidence to properly raise an issue
at court.3

The burden of proof is always on the prosecution to establish beyond reasonable doubt
all ingredients of an offence with which the person accused is charged4 and it cannot
fall back solely upon the evidence adduced by the accused persons in their defence.5
However, proof beyond reasonable doubt is entirely different from finding a charge to
be false.

3
C. D. Field, The Law of Evidence, 6 vols., 10th ed., 1970-73
4
Labhshanker Maganlal Shukla v. State of Gujarat, AIR 1979 SC 1012
5
Jarnail Singh v. State of Punjab, AIR 1996 SC 755

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 General Principles of Burden of Proof

Generally, the burden of proof lies on the party who substantially asserts the affirmative
of the issue and not upon the party who denies it. This rule of convenience has been
adopted in practice because negative does not admit of direct and simple proof of which
the affirmative is capable.

The general principles of burden of proof are laid down in sections 101 to 103.

Section 101:

Burden of proof-

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

This section says on whom burden of proof lies. The burden of proof lies on the party
who substantially asserts the affirmative of the issue and not upon the party who denies
it. 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 the existence of a fact, should be called upon to prove his own case. The party
on whom 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.6

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.

This section lays down the general test of the burden of proof. Accordingly, burden of
proof lies on the party whose case would fail if no evidence were given on either side.
This section tries to locate on whom burden of proof lies.

6
V.B. Raju, Commentaries on the Indian Evidence Act, 1872, 2 vols., 3rd ed., 1970

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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 proof of that fact
shall lie on any particular person.

Section 103 of the Evidence Act provides that burden of proof of any particular fact
lies on the person who wishes the court to believe in its existence.

The expression “burden of proof” has two meanings;

a) one is the burden of establishing the case and;

b) the other is the burden of introducing the evidence.7

The burden of proof in the first sense is fixed by law before the trial. It is usually
decided by the policy of law. Law decides that in a particular cause of action the burden
should be either on the plaintiff or on the defendant. This burden of establishing the
case remains throughout the trial on the person on whom it is originally placed. Burden
of proof in the second sense, i.e. the burden of introducing the evidence, goes on
shifting from party to party throughout the trial.

If the plaintiff makes out his prima facie case, then the burden shifts to the defendant
to introduce evidence to rebut plaintiff' s claim. It is not easy to lay down how and when
the burden in the second sense goes on shifting.

The burden of proving that a particular accused comes within any exception, general
or special, of the Indian Penal Code is on the accused.8

7
Kundan Lai v. Custodian, Evacuee Property AIR 1961 SC 1316
8
Rizam v. State of Chhattisgarh AIR 2003 SC 97

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 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 on the party who is in a position of active confidence.

This section provides that where a person is so related to another in a position of active
confidence, the burden of proving good faith of any transaction between them lies on
the person in good faith. According to Section 111 an active confidence is imposed
upon a person in good faith.

The active confidence means and indicates “the relationship between the parties must
be such that one is bound to protect the interest of other.” A relationship of active
confidence stands between the contracting parties when one imposed the duty of good
faith upon another who occupies position of trust and confidence.

Such relationship exists in cases such as, father and sons; advocate and client; doctor
and patient; husband and wife etc. In all such cases the law imposes a duty of good
faith upon person occupying the above positions. There an exception to this rule where
a fiduciary or confidential relationship subsists between the contracting parties.9

The burden of proving good faith of transaction would be on the defendant, dominant
party i.e. the party who is in position of active confidence.10

Proof of active confidence:

Section 111 applies to the circumstances where there is valid transaction between the
parties and one of them is accruing benefit from the transaction without acting in good
faith or is taking advantage of his position. In such cases the burden of proving good
faith of the transaction is on the transferee or beneficiary and the relationship of active
confidence must be proved.

9
S.C. Sarkar, The Law of Evidence, 14th ed., Wadhwa & Co. Nagpur, 1993
10
K.M. Kul v. P. Maity, AIR 2003 SC 4351

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The burden of proving good faith in transaction would be on defendant, dominant party
i.e. the party who is in position of active confidence.

“Active confidence indicates that the relationship between the parties must be such that
one is bound to protect the interests of the other”.11

When both parties adduce oral evidence as well as documentary evidence the question
of burden of proof becomes insignificant and the provisions of Section 111, Evidence
Act are not attracted.12

As between persons dealing on a footing of complete equality there is no presumption

against good faith. The law presumes prima facie in favour of deeds duly executed. So,
ordinarily a person who challenges the validity of a transaction on the ground of fraud,
undue influence, and charges his opponent with bad faith has the burden of proof on
him.

There is an exception to this rule where a fiduciary or confidential relationship subsists

between the contracting parties, e.g. guardian and ward, trustee and cestui que trust,
parent and child, physician and patient, preceptor and disciple etc.

The rule also applies to parents, executors, administrators, trustees, &c who take any
benefit in respect of any property entrusted to their care.

Where on account of the existence of such relationship one of them is in a position to

exert undue influence or "dominion" over the other and takes any benefit from him, the
burden of proving the good faith of the transaction is thrown upon the dominant
party i.e. the party who is in a position of active confidence.

A person standing in a fiduciary relation to another has a duty to protect the interest
given to his care and the court watches with jealousy all transactions between such
persons so that the protector may not use his influence or the confidence to his
advantage. When the party complaining shows such relation, the law presumes
everything against the transaction and the onus is cast upon the person holding the
position of confidence or trust to show that the transaction is perfectly fair and

11
V.B. Raju, Commentaries on the Indian Evidence Act, 1872, 2 vols., 3rd ed., 1970.
12
Dhanesra v. Sabira, 2004 (2) AWC 1686

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reasonable, that no advantage has been taken of his position and that no information
which should have been communicated has been withheld.

Indian Contract Act:

Section 16 of the Indian Contract Act provides for the cases in which one of the parties
is in a position to dominate the will of the other and uses that position to obtain an
unfair advantage.

In S. 16(2)(a) "standing in a fiduciary relation to other" is given as an example of a

person who is in a position to dominate the will of another.

S. 16(3) supplements this section so far as contracts are concerned and should be read
with it. It says that when such person enters into a contract with that other "and the
transaction appears on the face of it or on the evidence adduced to be unconscionable,
the burden of proving that such contract was not induced by undue influence shall be
upon the person in a position to dominate the will of the other."

It is further laid down that "nothing in this sub-section shall affect the provisions of s.
111 of the Evidence Act." Under s. 111, whenever the good faith of a transaction
between persons, one of whom stands to the other in a position of act ive confidence,
(eg, guardian, trustee, parent, agent, &c) is in question, there is a presumption against
the deed and the burden of proving good faith is on the person who holds the position.13

But under s. 16(3) Contract Act the burden of proof is thrown on the person who is in
a dominating position, only when the transaction appears on the face of it, or on the
evidence adduced to be unconscionable. This condition must be satisfied, otherwise, it
must be proved that the dominating position was actually used to the detriment of the
other person.14

Fiduciary relationship:

Where a confidence is imposed by one party to another during the course of transaction,
the fiduciary relationship may arise if there arises conflict of interests between the
parties. “Where a fiduciary or quasi-fiduciary relationship exists, the burden of

13
Poosathurai v. Kannappa, 47 IA 1: 43 M 546PC
14
Journal of the Indian Law Institute, Special Issue, 1972 on the Indian Contract Act and the Indian
Evidence Act

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sustaining a transaction between the parties’ rests with the party who stands in such
relation and is benefited by it.”15

When Director issuing additional shares has no fiduciary duty to inform the current
shareholders about the benefit and the question of burden of proving bona fide of
director does not arise. In a transaction entered into by a pardanashin lady in favour of
her managing agent, every onus in upon the agent to show conclusively that the
transaction was honest and bona fide.

Where a fiduciary relation existed, the courts of Equity have invariably placed the
burden of sustaining the transaction upon the party benefitted by it, requiring him to
show that it was of an unobjectionable character and one which it ought not to disturb.16

Transaction with Pardanashin ladies:

When any transfer is made by a pardanashin lady the principle embodied in Section
111 applies. In cases involving transfer by pardanashin ladies, it is incumbent that those
who rely upon them should satisfy the court that they had been explained to and
understood by those who executed them.

“The rule above applies only to strictly pardanashin woman, women who live in
complete seclusion and do not appear in public according to the customs and manners
of their country and who on account of their ignorance or want of contract with outside
would have not the capacity of understanding business transactions and incapable of
managing their own affairs are also entitled to the protection of the court.17

Where there is a "relation of confidentiality" between the parties and the appellant who
was in a position to dominate the will of a pardanashin lady had a deed in his favour
which was on the face of it clearly harsh and unconscionable, it is essential for the party
benefitted to excuse themselves from what would otherwise be the necessary
implication arising on those facts.18

15
Avtar Singh, Principles of the Law of Evidence (1992), Central Law Agency, New Delhi
16
Sital Pd v. Parbhulal, 10 A 535
17
J. G. Woodroffe and Amir Ali, The Law of Evidence, 4 vols., 12th ed. by J.P. Singhal, 1968
18
Thakurji v. Ram Dei, A 1930 PC 139

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Where S. 111 Does not apply. —

S. 111 has no application except as between parties to the transaction itself. It does not
apply where the sole dispute on the pleading is not one of bona fides of a transaction
but one of what is the real nature of the transaction itself (e.g. whether it was sale or a
mortgage by way of conditional sale). When a question which is entirely outside one
of good faith and the transaction is impugned from another angle altogether, merely
because a sale takes place between a solicitor and client or between persons who have
some other analogous relationship, it does not mean that the method of impugning it
should be different or the things to prove should in any way be varied.19

Wills:

As S. 111 speaks of "a transaction between parties" which implies bilateral documents,
whereas a will is a unilateral document by which property is disposed of by a person,
thus interpreted, an exception may be created in favour of wills. The burden of proving
testamentary capacity and execution is upon the proponent. When the person benefitted
by the will is found to be in a position of active confidence towards the testator, there
does not appear to be any reason why the general rule of presumption of undue
influence should not arise.

When once it has been proved that a will has been executed with due solemnities by a
person of competent understanding and apparently a free agent, the burden of proving
that it was executed under undue influence is on the party who alleges it.20

19
Ma Phaw v. Dutt, AIR 1938 SCC 412
20
Naresh v. Paresh, AIR 1955 SCC 362

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 References: -

1. Sarkar and Manohar, Sarkar on Evidence (1999), Wadha & Co., Nagpur

2. Indian Evidence Act, (Amendment up to date)

3. Ratan Lal, Dhiraj Lal: Law of Evidence (2006, Wadhwa, Nagpur

4. Polein Murphy, Evidence (5th Edn. Reprint 2000), Universal, Delhi.

5. Albert S. Osborn, The Problem of Proof (First Indian Reprint 1998), Universal,

Delhi.

6. Avtar Singh, Principles of the Law of Evidence (1992), Central Law Agency, New

Delhi

7. Vepa P. Sarathi, Law of Evidence (6th ed., 2006)

8. M. Monir, Law of Evidence (14th ed., 2006)

9. The Law of Evidence,Batuk Lal,Central Law Agency, Allahabad.

10. J. G. Woodroffe and Amir Ali, The Law of Evidence, 4 vols., 12th ed. by J.P.

Singhal, 1968

11. Journal of the Indian Law Institute, Special Issue, 1972 on the Indian Contract Act

and the Indian Evidence Act

12. V.B. Raju, Commentaries on the Indian Evidence Act, 1872, 2 vols., 3rd ed., 1970

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