Bharatiya Sakshya Adhiniyam, 2023
Section 105
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 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.
Why this exists
This rule, carried forward from the earlier Indian Evidence Act, 1872 (Section 101), reflects a basic fairness principle in adversarial litigation: courts cannot function on guesswork, so they need a starting point to decide who must bring proof. The test asks a simple hypothetical — if both sides submitted nothing, who would lose? That person carries the burden, ensuring claims and defenses are backed by evidence rather than assumed true.
How courts read it
Indian courts have long applied this as a practical, outcome-based test rather than a rigid formula. They distinguish the legal burden (which stays fixed on the person asserting a fact, based on pleadings) from the evidentiary burden (which can shift during trial as evidence comes in). Courts have repeatedly held that where a party admits a document but alleges an additional fact like fraud, coercion, or undue influence, that party must prove the additional fact, since the underlying document remains valid unless disproved.
Common misconceptions
- Myth: The person who filed the case always has the burden of proof.
Fact: Not always — the burden depends on who would lose if no evidence were given, which can sometimes be the defendant, as in the fraud example. - Myth: Once the burden is fixed, it never moves during the trial.
Fact: Courts distinguish between the fixed legal burden (based on pleadings) and the evidentiary burden, which can shift back and forth as each side presents evidence.