Burden of proof loses importance – Saji Koduvath Associates

BURDEN of PROOF is Static; ‘ONUS’ alone Shifts, According to Indian Law

Jojy George Koduvath & Saji Koduvath.

Introduction

The doctrine of ‘burden of proof’ indicates the party upon whom the responsibility lies to establish the truth of a relevant fact in a legal proceeding.

In certain cases, the entire burden of proof may rest on one party to the litigation. In others, it may ‘shift’ to the other side when the first party prima facie discharges its obligation. It is, in most cases, depended upon the standard of proof expected from the parties to the litigation. In criminal cases, the standard of proof rests upon the prosecution and is ‘beyond a reasonable doubt’; whereas in civil cases, it is simply the ‘preponderance of the evidence’ or ‘balance of probabilities.’

Part I

Burden of Proof as a Legal Concept in Indian and English Law

Sec. 104 of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Sec. 101 of the Indian Evidence Act, 1872) defines Burden of Proof as under:

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

The Evidence Act in force in India systematically codifies the rules of evidence in civil and criminal cases, and provides clear guidelines on what is admissible in court and how evidence is to be presented.

But, in the UK (especially England and Wales), there is no full-fledged or comprehensive single enactment similar to the ‘Evidence Act’ in India.

Fundamentally, English courts follow the Common Law (judge-made law) with respect to the basic doctrines of evidence, such as the burden of proof, standard of proof, probative evidence, relevance, the res gestae rule, direct evidence, circumstantial evidence, and primary evidence. Various procedural enactments also provide piecemeal statutory provisions. The important statutes in this regard are –

Criminal Justice Act, 2003,
Youth Justice and Criminal Evidence Act, 1999,
Civil Evidence Act, 1995,
Police and Criminal Evidence Act, 1984 (PACE).

Burden of Proof – Primary Principles

1. Burden of Proof is Static; It never Shifts

As shown above, the “burden of proof” is depended upon the obligation upon each party in a legal proceeding to furnish evidence. The fundamental rules regarding the burden of proof in the Indian judicial system, as established by judicial authorities, can be summarized as under:

The burden of proof is always static and does not shift.
Burden of proof lies on the person who would fail if no evidence is adduced on either side.
Ordinarily, the burden of proof would be on the party who asserts the affirmative of an issue.

2. ‘Onus’ of proof ‘shifts’

‘Onus’ literally means – ‘the responsibility or duty to do something‘. In Indian law, “onus of proof” has a distinct connotation:

Though Indian Evidence Act does not use the word “onus”, authoritative judicial pronouncements have clarified that it differs from the ‘static’ burden of proof.
The doctrine of onus of proof ‘shifts’ the duty of proving a fact upon one party (when sufficient or proper evidence is furnished by it) to the other party. That is, when the ‘onus’ on the first party is discharged, it shifts to the opposing party to provide rebuttal or counter evidence.

In Rajesh Jain v. Ajay Singh, AIR 2023 SC5018; 2023-10 SCC 148, it is observed as under:

“29. There are two senses in which the phrase ‘burden of proof ’ is used in the Indian Evidence Act, 1872…. One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the ‘legal burden’ and it never shifts, the latter is called the ‘evidential burden’ and it shifts from one side to the other. [See: Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)].
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party’s case.
On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury’s Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G. Vasu v. Syed Yaseen (AIR 1987 AP 139) affirmed in Bharat Barrel v. Amin Chand [1999- 3 SCC 35].”

See also: Gian Chand & Brothers v. Rattan Lal, AIR 2013 SC 1078,

Burden of proof never shifts; Onus of proof shifts

In Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136, it was pointed out – there is an essential distinction between burden of proof and onus of proof. It reads as under:

“Burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.”

This principle in Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136 (burden of proof never shifts, and onus of proof shifts) is affirmed in the folloing decisions of our Apex Court-

Mahakali Sujatha v. Branch Manager, Future Generali India Life Insurance Company Limited, AIR 2024 SC 2019; 2024-8 SCC 712;
Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379;
Mohd. Abdullah Azam Khan v. Nawab Kazim Ali Khan, 2022-11 JT 214; 2022-16 Scale 689
Union of India v. Vasavi Coop. Housing Society, 2014- 2 SCC 269;
Gian Chand & Brothers v. Rattan Lal @ Rattan Singh, AIR 2013 SC 1078: 2013-2 SCC 606;
Sebastiao Luis Fernandes v. K.V.P. Shastri, 2013-15 SCC 161;
Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971; 2006-5 SCC 558;
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, AIR 2003 SC 4548; 2003-8 SCC 752.

‘Burden of Proof’ and ‘Onus of Proof‘- English Law

These terms (‘burden of proof’and ‘onus’) are often regarded as synonymous expressions by English courts, and are used interchangeably. (See: R v Hunt [1987] AC 352: (1987) I All ER I (HL); Cross and Tapper on Evidence.)

The terms ‘Legal burden‘ and ‘Evidential burden‘ are legal concepts primarily rooted in English Law. The ‘legal burden’ identifies the party responsible for proving a fact; the ‘evidential burden’ pertains to whether sufficient evidence has been presented to warrant proper adjudication.

Halsbury’s Laws of England

Halsbury’s Laws of England, 4th Edition, Volume 17, para 13 and 14, explains these legal concepts under the head, ‘Legal burden‘ and ‘Evidential burden‘. It reads as under:

“13. The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”
“14. The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence”. (Referred to in: Rajesh Jain v. Ajay Singh, AIR 2023 SC 5018; 2023-10 SCC 148).

Part II

Burden of Proof Loses its Importance

(a) if both parties adduced evidence
(b) if there is sufficient evidence on an issue.

Burden of Proof Gets Significance

(a) when no evidence at all on the question in dispute
(b) when a person on whom the burden of proof lay, failed to adduce any evidence altogether
(c) when no adequate evidence so as to shift onus, or
(d) when best evidence is withheld (Sriram Industrial Enterprises Ltd. v. Mahak Singh, AIR 2007 SC 1370; 2007-4 SCC 94).
(e) when Court cannot “Make Up its Mind” (Kumbhan Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278) from the evidence adduced.

Rule of ‘Best Evidence’

Rule of ‘Best Evidence’ requires a party to produce all material evidence with him. If he fails to produce the best evidence, then illustration ‘g’ of Section 114 of the Evidence Act allows the court to take the presumption that, had that evidence been produced, it would have been unfavourtable to him.

The party raising the Point must Plead and Prove

In Rajasthan Pradesh Vaidya Samiti v. Union of India, (2010) 12 SCC 609, relying on Bharat Singh v. State of Haryana[(1988) 4 SCC 534: AIR 1988 SC 2181], it is observed as under:

“15. It is a settled proposition of law that a party has to plead the case and produce/ adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the court is under no obligation to entertain the pleas. In Bharat Singh v. State of Haryana this Court has observed as under: (SCC pp. 542-43, para 13)
“13. … In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point.” (Quoted in: Indian Oil Corporation Limited v. Aditya H.P. Centre (2026 INSC 182)

In Writ Petition and Counter, Evidence in Proof of such Facts also be Pleaded

In Bharat Singh v. State of Haryana, (1988) 4 SCC 534: AIR 1988 SC 2181, our Apex Court pointed out as under:

“… there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading i.e. a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.” (Quoted in: Indian Oil Corporation Limited v. Aditya H.P. Centre (2026 INSC 182)

Weakness of the Defence & High Degree of Probability

A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary. But it must be noted that the plaintiff need to show only a high degree of probability; and that it shifts the onus on the defendant.

This principle applies in both civil and criminal cases. In M. Srinivasulu Reddy v. State Inspector of Police, 1991 (3) ALT 542, 1993 CriLJ 558, it is held as under:

“The prosecution cannot take advantage of the weaknesses of the defence or cannot take advantage of the inconsistent stand taken by the accused from time to time. The prosecution must stand on its own legs basing on the evidence that has been let in by it.”

The Supreme Court of India, in Ratnagiri Nagar Parishad v. Gangaram Narayan Ambekar, 2020-7 SCC 275, held as under:

“The initial burden of proof is on the plaintiffs to substantiate his cause, if he failed to discharge the same, the weakness in the defense cannot be the basis to grant relief to the plaintiffs and burden cannot be shifted on the defendants.”

Ownership & Title – High degree of Probability, Onus would “Shift“

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752, the law is stated in the following terms :

“A fact is said to be ‘proved’ when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. …”
In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof:
- burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.
In the present case, the trial Court and the first appellate Court have noted that the plaintiff has not been able to produce any deed of title directly lending support to his claim for title and at the same time the defendant too has no proof of his title much less even an insignia of title. Being a civil case, the plaintiff cannot be expected to proof his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged. In the opinion of the two Courts below, the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged. …”.
… A high degree of preponderance of probability proving title to the suit property was raised in favour of the appellant and the courts below rightly concluded the burden of proof raised on the plaintiff having been discharged while the onus shifting on the defendant remaining undischarged. ..”
(Quoted in: Anil. Rishi v. Gurbaksh Singh, 2006-5 SCC 558; City Municipal. Council, Bhalki v. Gurappa, (2016) 2 SCC 200)

Adverse Inference Drawn (even if no burden), if Withheld Documents

The Supreme Court held in Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, as under:

Even if a party to the suit has no burden, the Court can draw an adverse inference if he withholds important documents in his possession.

From the above, it is definite that, in a proper case, if the defendant who withholds important document (admittedly) in his possession, the court can take the adverse presumption against the defendant, even if the plaintiff (who has the burden of proof or who is bound to create a high degree of probability) did not adduce any evidence.

Duty to Produce Helpful Document

In National Insurance Co. Ltd., New Delhi v. Jugal Kishore, 1988-1 SCC 626, Our Apex Court stated the law as under:

“This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.” (Quoted in: Sushil Kumar v. Rakesh Kumar, 2003-8 SCC 673)

Modern Trend in English Law

In a leading Scottish case, Nimmo v. Alexander Cowan & Sons Ltd., 1967 SC (HL) 79; [1968] AC 107, the majority of the House of Lords held that, where a statute does not expressly indicate the burden of proof in respect of a particular fact, the court should consider practical considerations in determining on whom the burden lies — particularly the relative ease or difficulty with which each party might face in discharging the burden. Analysing Nimmo, in R v Hunt [1987] 1 AC 352, Lord Griffiths said:

“When all the cases are analysed, those in which the courts have held that the burden lies on the defendant are cases in which the burden can be easily discharged.”

R v Hunt [1987] 1 AC 352, is followed in subsequent cases which include –

R v Horncastle [2009] UKSC 14
R v Wright [2009] EWCA Crim 2169
R v Sheldrake [2004] UKHL 43.

Burden of Proof Not Relevant when “Both Sides had Adduced Evidence”

In Moran Mar Basselios Catholicos v. Thukalan paulo Avira, AIR 1959 SC 31, the Constitution bench of the Supreme Court held as under:

The question of burden of proof at the end of the case when both the parties have adduced their evidence is not of very great importance and the Court has to come to a decision on a consideration of all the materials.

In Kalwa Devadattam v. Union of India, 1964-3 SCR 191, the Supreme Court held as under:

“The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue; abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties. ”

In Arumugham v. Sundarambal, AIR 1999 SC 2216, it has been held as under:

“On the question of burden of proof we are of the view that even assuming burden of proof is relevant in the context of the amended provision of Sec. 100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay, failed to adduce any evidence altogether.”

The Supreme Court, in Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, referring Sec. 102 of the Evidence Act (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), explained ‘burden of proof’ as under:

“Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.”

Burden of Proof Remains Only Academic

In Narayan v. Gopal, AIR 1960 SC 100, it was held as under:

“The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail, where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic.”

In Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040, it is observed that it is a settled law that once the parties have been permitted to produce evidence in support of their respective cases and it is not their grievance that any evidence was shut out the question of burden of proof loses significance and remains only academic.

BURDEN of PROOF – Initial Burden and Shifting Onus of Proof in Indian Law

Saji Koduvath, Advocate, Kottayam & Jojy George Koduvath, Kottayam.

Taken from: Rules on Burden of proof and Adverse Inference

Key Takeaways

1. Burden of proof is always static and does not shift; onus of proof shifts.
- Burden of proof it is upon whom who suffers, if no evidence on the question in dispute.
- Burden of proof would be on the party who asserts the affirmative of the issue.
- Plaintiff has to win on title – A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary.
- But it must be noted that the plaintiff need to show only a high degree of probability and that it shifts the onus on the defendant.
- Court is Entitled to Consider the Title set up by the Defendants also.
2. Burden of Proof loses significance if both parties adduced evidence.
3. Suit on title & high degree of probability– If plaintiff discharges his burden by showing high degree of probability (that the title vests in him), onus shifts.
- Onus of proof ‘shifts’ on adducing adequate evidence by the party concerned.
- If the defendant fails to release the onus shifted, the burden on plaintiff shall stand discharged (and the title with the plaintiff is inferred).
4. Adverse inference is drawn when a party withholds documents, even if he has no burden.
- If a party does not examine himself: Adverse inference is drawn if a party does not examine himself: But, it is Not an Invariable Rule.
- Adverse inference is taken after considering (a) pleadings, (b) relevancy of the withheld evidence and (c) burden of proof.
- Presumption and adverse inference for non-production of evidence are always optional.
5. If the defendant establishes his right as lessee etc. If the defendant establishes his right to continue possession as lessee, licencee, mortgagee etc. (honouring title of the plaintiff) the plaintiff’s suit for possession will fail.
6. Burden of proof is static; Contrary Observations are Legally Incorrect.
7. When burden of proof is discharged?
When there is (i) sufficient evidence is adduced or (ii) admission by other side

Burden and Standard of Proof in English Law

The Evidence Act in force in India systematically codifies the rules of evidence in civil and criminal cases; and provides clear guidelines on what is admissible in court and how evidence is to be presented. But, in the UK (especially England and Wales), there is no full-fledged or comprehensive single enactment similar to the ‘Evidence Act’ in India.

Fundamentally, English courts follow the Common Law (judge-made law), with respect to the basic doctrines of evidence, such as Burden of proof, Standard of proof, Probative evidence, Relevancy, Res gestae rule, Direct evidence, Circumstantial evidence, Primary evidence. Various procedural enactments provide piecemeal statutory provisions, also. The important statutes in this regard are-

Police and Criminal Evidence Act 1984 (PACE)
Criminal Justice Act 2003
Youth Justice and Criminal Evidence Act 1999
Civil Evidence Act 1995.

‘Burden of Proof’ and ‘Onus’ used in English Courts

‘Burden of proof’ is related to the requirement as to the standard of evidence placed upon each party to the legal proceedings. The burden or standard in criminal cases (“beyond a reasonable doubt”) is different from that in civil cases (“preponderance or balance of probabilities,” “a good arguable case,” or “much the better of the argument”).

The term ‘onus’ is also used in English courts in place of ‘burden of proof‘.

Indian Law: Abstract – Primary Principles

Burden of proof is static ; It never shifts

The burden of proof is always static and does not shift.

Burden of proof lies on the person, who would fail if no evidence is adduced on either side.
Ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.

See:

Kundanlal v. Custodian Evacuee Property, AIR 1961 SC 1316,
Raghavamma v. A. Chenchamma,AIR 1964 SC 136,
Bharat Barrel v. Amin Chand, (1999) 3 SCC 35,
Gian Chand & Brothers v. Rattan Lal, AIR 2013 SC 1078,
Rajesh Jain v. Ajay Singh, AIR 2023 SC 5018; 2023-10 SCC 148.

What is ‘Onus’ used in Indian Courts?

Onus means – ‘the responsibility or duty to do something‘.
Though the Indian Evidence Act does not contain the word “onus”, it is made clear by judicial pronouncements that it differs from the ‘static’ burden of proof. The onus of proof ‘shifts’ the duty of proving a fact upon one party when it is discharged, as the reply evidence is required from the other party.
Burden of Proof and Onus of Proof (as used in Indian Law) are recognized in English Law as ‘Legal Burden‘ and ‘Evidential Burden‘ respectively.

Halsbury’s Laws of England – ‘Legal burden‘ and ‘Evidential burden‘

Distinction between the legal burden of proof and evidential burden of proof is expounded in Halsbury’s Laws of England, 4th Edition, Volume 17 [para 13 and 14]. It reads as under:

“13. The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”
“14. The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence?”

Onus of proof ‘shifts’

Onus of proof ‘shifts’ on adducing ‘satisfactory’ (or high degree of) evidence by the party upon whom the onus lies, and thus discharging his burden.

Burden of proof Loses its Importance

(a) if both parties adduced evidence
(b) if there is sufficient evidence on an issue.

Burden of proof remains academic

In such a situation, it remains academic:

Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi, 49 IA 286 303: AIR 1922 PC 292 (referred to in: Seturatnam Aiyar v. Venkatachala Gounden, (1919) 47 IA 76 and Kumbham Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278);
Union of India v. Sugauli Sugar Works (P) Ltd., 1976-3 SCC 32 (referred to in Sushil Kumar v. Rakesh Kumar, , 2003-8 SCC 673; Rakesh Kumar v. Sunil Kumar, 1999-2 SCC 489; Mohd. Abdullah Azam Khan v. Nawab Kazim Ali Khan, 2022 (11 ) JT 214: 2022 (16 ) SCALE 689: 2023 KLT OnLine 1084 (SC)
Cox and Kings (Agents) Ltd. v. Workmen [(1977) 2 SCC 705 (referred to in Sushil Kumar v. Rakesh Kumar, , 2003-8 SCC 673; Rakesh Kumar v. Sunil Kumar, 1999-2 SCC 489; Mohd. Abdullah Azam Khan v. Nawab Kazim Ali Khan, 2022 (11 ) JT 214: 2022 (16 ) SCALE 689: 2023 KLT OnLine 1084 (SC)
Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040;
Sushil Kumar v. Rakesh Kumar, 2003-8 SCC 673,
Mohd. Abdullah Azam Khan v. Nawab Kazim Ali Khan, 2022 (11 ) JT 214: 2022 (16 ) SCALE 689: 2023 KLT OnLine 1084 (SC)

Burden of proof gets significance

(a) when no evidence at all on the question in dispute
(b) when a person on whom the burden of proof lay, failed to adduce any evidence altogether
(c) when no adequate evidence so as to shift onus, or
(d) when best evidence is withheld.
(e) when Court cannot “Make Up its Mind” from the evidence adduced (Kumbhan Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278).

When burden of proof is discharged?

When there is (i) sufficient evidence is adduced or (ii) admission by other side

National Insurance Co. Ltd. vs. Rattani (2009) 2 SCC 75: AIR 2009 SC 1499, answers this question. It says –

1. The question as to whether burden of proof has been discharged by a party to the lis or not, would depend upon the facts and circumstances of the case.
2. If the facts are admitted or, if otherwise,sufficient materials have been brought on record so as to enable a Court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lies would still be liable to produce direct evidence.

See also: Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022 (11 ) JT 214: 2022 (16 ) SCALE 689: 2023 KLT OnLine 1084 (SC), National Insurance Company Ltd. v. Savitri Devi, 2013-11 SCC 554.

Kumbhan Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278, where it was held as under:

“When, after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background.”
Quoted in: Dulhin Mahabati Kuer v. Raghunandan Prasad Singh, AIR 1958 Pat 249, Surajbhan Kailash Chand v. Hari Shanker Vashsist, AIR 1976 Delhi 70, Krishne Gowda v. Ningegowda, ILR 1987 Kar 2883, Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel, 2020-1 GLH 261, Vinod Agrawal v. Bharat Kumar Lathi, ILR 2012 MP 84.

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, it is held as under:

“In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.“
Quoted in: Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200.

The party raising the Point must Plead and Prove

In Rajasthan Pradesh Vaidya Samiti v. Union of India, (2010) 12 SCC 609, relying on Bharat Singh v. State of Haryana[(1988) 4 SCC 534: AIR 1988 SC 2181], it is observed as under:

“15. It is a settled proposition of law that a party has to plead the case and produce/ adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the court is under no obligation to entertain the pleas. In Bharat Singh v. State of Haryana this Court has observed as under: (SCC pp. 542-43, para 13)
“13. … In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point.” (Quoted in: Indian Oil Corporation Limited v. Aditya H.P. Centre (2026 INSC 182)

In Writ Petition and Counter, Evidence in Proof of such Facts also be Pleaded

In Bharat Singh v. State of Haryana, (1988) 4 SCC 534: AIR 1988 SC 2181, our Apex Court pointed out as under:

“… there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading i.e. a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.” (Quoted in: Indian Oil Corporation Limited v. Aditya H.P. Centre (2026 INSC 182)

Duty to produce ‘helpful documents’

The Supreme Court held in Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, that adverse inference has to be drawn (even if no burden), if a party to the suit withheld documents.
In National Insurance Co. Ltd., New Delhi v. Jugal Kishore, 1988-1 SCC 626, it was stated as under:
- “This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.”
See also:
- Union of India v. Vijay Krishna Uniyal, 2018-11 SCC 382.

“Legal Burden” and Sec. 101 Evidence Act

In Rajesh Jain v. Ajay Singh, AIR 2023 SC5018; 2023-10 SCC 148, it is observed as under:

“29. There are two senses in which the phrase ‘burden of proof ’ is used in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the ‘legal burden’ and it never shifts, the latter is called the ‘evidential burden’ and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)].
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party’s case. …. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury’s Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G. Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35].”

‘Onus Probandi’ and Sec. 106 of the Evidence Act

The Latin maxim, Onus Probandi, means ‘burden of proof’. This maxim generally conveys the rule and impression that one who asserts a positive fact has to prove it.

Sec. 101 to 103 of the Indian Evidence Act, 1872, deal with the burden of proof in general. Sec. 104 to 106 deal with specific situations.

Sec. 101 to 106, Indian Evidence Act, reads as under:

S. 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.
S. 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.
S. 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.
S.104. The burden of proving the 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 fact is on the person who wishes to give such evidence.
S.105. The burden of proving that the case of accused comes within exceptions. When a person is 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.
S.106. The burden of proving fact specially within knowledge. When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.

In an election case, referring Sec. 106 and Sec. 114 of the Evidence Act, the Supreme Court, observed in Puneet Rai v. Dinesh Chaudharv, (2003) 8 SCC 204, that the onus was on the respondent to prove that he belongs to ‘Passi’ community which falls in the Schedule caste category.

In Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673, the Supreme Court found that the burden of proving the age of the elected candidate (above 25 years) was upon him. The Apex Court held as under:

“28. It is no doubt true that the burden of proof to show that a candidate who was disqualified as on the date of the nomination would be on the election petitioner.
29. It is also true that the initial burden of proof, that nomination paper of an elected candidate has wrongly been accepted, is on the election petitioner.
30. In terms of Section 103 of the Indian Evidence Act, however, 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.
31. Furthermore, in relation to certain matters, the fact being within the special knowledge of the respondent, the burden to prove the same would be on him in terms of Section 106 of the Indian Evidence Act. However, the question as to whether the burden to prove a particular matter is on the plaintiff or the defendant would depend upon the nature of the dispute.
32. The age of a person, in an election petition has to be determined not only on the basis of the materials placed on records but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of Section 106 of the Evidence Act.
It is also trite that when both parties have adduced evidence, the question of onus of proof becomes academic [See: Union of India and Others vs. Sugauli Sugar Works (P) Ltd., (1976) 3 SCC 32,(Para 14) and M/s Cox and Kines (Azents) Ltd. vs. Their Workmen and Others, AIR 1977 SC 1666, (Para 36)]. Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established.”

‘Onus Probandi’ and Rule of ‘Best Evidence’

Rule of ‘Best Evidence’ requires a party to suit to produce all material evidence with him. If he fails to produce the best evidence, then illustration ‘g’ of Section 114 Evidence Act allows the court to take the presumption that, if that evidence had been produced, it would have been unfavourtable to him. In Dharampal v. State of Haryana (P& H, 2020) it is observed as under:

“20. Chapter VII in Part-Ill of the Evidence Act, 1872 examines the burden of proof and onus of proof or “onus probandi”. Section 101 lays down that whosoever, wants the court to give judgment as to any legal right or liability dependent on the existence of fact, which he asserts, must prove that those facts exist. However, Section 106 provides that any fact which is essentially within the knowledge of any person, the burden of proving that fact is upon him. Illustration-b to Section 106 specifically provides that if A is charged with travelling on a railway train without ticket, the burden of proving that he had bought a ticket is on the person who was found travelling. Still further, illustration ‘g’ of Section 114 require production of best evidence before the Court/authority. It lays down that the evidence which could be but is not produced, would be deemed to be unfavourable to the person who holds it from the Court/authority. It means that if a person fails to produce the best evidence which he could produce then the presumption would be that the aforesaid evidence, if had been produced, would be unfavorable to the person, who withholds it.”

Suit on Title – Weakness of the Defence & High Degree of Probability

This principle applies in both civil and criminal cases. In M. Srinivasulu Reddy v. State Inspector of Police, 1991 (3) ALT 542, 1993 CriLJ 558, it is held as under:

“The prosecution cannot take advantage of the weaknesses of the defence or cannot take advantage of the inconsistent stand taken by the accused from time to time. The prosecution must stand on its own legs basing on the evidence that has been let in by it.”

The Supreme Court of India, in Ratnagiri Nagar Parishad v. Gangaram Narayan Ambekar, (2020) 7 SCC 275, held as under:

“The initial burden of proof is on the plaintiffs to substantiate his cause, if he failed to discharge the same, the weakness in the defense cannot be the basis to grant relief to the plaintiffs and burden cannot be shifted on the defendants.”

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is stated in the following terms :

“A fact is said to be ‘proved’ when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. …”
In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof:
- burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.
In the present case, the trial Court and the first appellate Court have noted that the plaintiff has not been able to produce any deed of title directly lending support to his claim for title and at the same time the defendant too has no proof of his title much less even an insignia of title. Being a civil case, the plaintiff cannot be expected to proof his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged. In the opinion of the two Courts below, the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged. …”.
The suit property, which is a shop, is situated just adjoining the property owned by the temple. It has come in the evidence that the property which is now owned by the temple was at one time owned by the forefathers of the plaintiff and they made an endowment in favour of the temple. The father of the plaintiff, and then the plaintiff, continued to be the trustees. The trouble erupted when in the late sixties the Charity Commissioner appointed other trustees and Chief Executive Officer of the trust dislodging the plaintiff from trusteeship. The plaintiff staked his claim to trusteeship of the temple submitting that the office of the trustee of the temple was hereditary and belonged to the plaintiff. The plaintiff was managing the trust property as trustee while the property adjoining to the property of the temple, i.e. the suit property, was in possession of the plaintiff as owner occupied by the tenant, the defendant No.2., inducted as such by the father of the plaintiff. At the instance of the Chief Executive Officer of the trust, the defendant No.2, during the continuance of the tenancy in favour of the plaintiff, executed a rent note in favour of the temple attorning the latter as his landlord. This the defendant no.2 could not have done in view of the rule of estoppel as contained in Section 116 of the Evidence Act. It was at the instance of the newly appointed trustees and the Chief Executive Officer who on behalf of the temple started claiming the suit property in occupation of the tenant, defendant No.2, to be trust property belonging to the temple. But for this subsequent development the title of the plaintiff to the suit property would not have been in jeopardy and there would have been no occasion to file the present suit.
The learned counsel for the temple, defendant-respondent No.1, faintly urged that the appellant being a trustee of the temple was trying to misappropriate the property belonging to the temple. For such an insinuation there is neither any averment in the written statement nor any evidence laid. Such a submission made during the course of hearing has been noted by us only to be summarily rejected. We have already held that the appellant is the owner of the suit property entitled to its possession and recovery of arrears of rent from the defendant No.2.
… A high degree of preponderance of probability proving title to the suit property was raised in favour of the appellant and the courts below rightly concluded the burden of proof raised on the plaintiff having been discharged while the onus shifting on the defendant remaining undischarged. ..”
(Quoted in: Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200)

In Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9,it is held bu our Apex Court as under:

“31. The burden of proof
- ^{[See Paragraph 19 in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 where the expression ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others.]}
to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief [See Addagada Raghavamma v. Addagada Chenchamma and Another, AIR 1964 SC 136.] This is mandated in terms of Sec. 101
- ^{[Sec. 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.]}
of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions,[See Ss. 103, 104 and 105 of the Evidence Act.] but in the factual background of the present case, the general principle is applicable. In terms of Sec. 102
- ^{[Sec. 102: On whom the 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.]}
of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.[See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558.] Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.[See R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami V.P. Temple and Another, (2003) 8 SCC 752.] The weakness of the defence cannot be a justification to decree the suit. [See Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others, (2014) 2 SCC 269.] The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Ss. 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes (DEAD) Through LRs. And Others v. K.V.P. Shastri (DEAD) Through LRs. And Others, (2013) 15 SCC 161.]
Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”

Court is Entitled to Consider the Title set up by the Defendants also

In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, it is observed –

In a recovery on title suit, the burden is on the plaintiff to establish title.
Court is also entitled to consider the rival title set up by the defendants
Weakness of defence to establish title, would not enable plaintiff to a decree.

The Apex Court held:

“The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
“14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”

Document ex-facie reveals no title – specific declaration as to invalidity not necessary

The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.), 2024(2) KLT 789 (SC), held as under:

“18. …. If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 (Exhibit A-20).”

By proving a deed, title of the executing person is not automatically confirmed

The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.), 2024(2) KLT 789 (SC), also held as under:

“18. … It would be trite to repeat that even if subsistence of a deed is proved in evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed. ….. … But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”

Easement of Necessity – Who has the Burden to show Alternate Way

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, it is held that the plaintiff claiming easement of necessity or grant has only a primary burden to prove the absence of any alternate pathway.

“In a case where the original plaintiff was claiming easement right either as grant or as of necessity the plaintiff has only a primary burden to prove the absence of any alternate pathway. As the defendants have not proved the existence of any pathway for access to Plaint `A’ schedule property the version of the plaintiff that there is no alternate pathway shall be accepted. … The defendants have not entered the witness box to disprove the evidence led by the plaintiff.”

Who has the Onus to show Alternate Way Could Not be Used ‘As Of Right’

When the existence of alternate way is shown by the alleged servient owner of easement of necessity, the onus to prove that the way cannot be used “as of right” is upon the dominant owner. In Antony @ Anthappan v. George, LAWS(KER) 2012-11-179 it is held by t6he Kerala High Court as under:

“11. When the existence of an alternate way is shown, the appellants ought to have shown that they could not use it as of right. That is because that is a matter within the knowledge of the appellants. The appellants did not adduce evidence in that line.”

The High Court then remanded the case giving the dominant owners an opportunity to adduce evidence to show that the alternate way was not one which they were entitled to use as of right.

No pleading; but, Issue Covered by Implication – Evidence can be relied on

The Supreme Court, in the matter of Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94, held that if parties know that a plea was involved in trial and if such a plea is covered by issue by implication then in such a case mere fact that the plea was not expressly taken in pleading would not necessary disentitle a party from relying upon it if it is satisfactorily proved by evidence.

Plaintiff Fails to Establish ‘Probability‘ and Defendant ‘Withholds Documents‘

From R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is clear –

in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.

Adverse Inference Drawn (Even if no burden), if Withheld Documents

The Supreme Court held in Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, as under:

Even if a party to the suit has no burden, the Court can draw an adverse inference if he withholds important documents in his possession.

Duty to produce helpful document

In National Insurance Co. Ltd., New Delhi v. Jugal Kishore, 1988-1 SCC 626, Our Apex Court stated the law as under:

“This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.” (quoted in: Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673)

Also Read: Best Evidence Rule in Indian Law

Party Does Not Examine -Adverse Inference if only he is a Material Witness

In Bijoy Kumar Karnani vs Lahori Ram Prasher, AIR 1973 Cal 465, the High Court considered the argument as to non-examination of the plaintiff as a witness in the light of Section 114, illustration (g) of the Evidence Act which provides that the Court may presume that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. The court pointed out that the plaintiff was not a material witness as to the disputed facts, sans admitted facts. Citing Gurbakhsh Singh v. Gurdial Singh, AIR 1927 PC 230, it was observed that the argument of the defendant would be apt if only the plaintiff was a material witness, as stated by the Privy Council as under:

“The true object to be achieved by a Court of Justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected to all its particulars to cross-examination.”

Adverse Inference – if a Party Not Examine Himself: Not an Invariable Rule

In Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457, the Supreme Court observed as under:

“17…..Having not entered into the witness-box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872.” (Quoted in: Iqbal Basith v. N. Subbalakshmi, (2021) 2 SCC 718)

The Supreme Court also observed in Vidhyadhar v. Manikrao, AIR 1999 SC 1441, as under:

“Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”

Party Not Examine Himself: Not an Invariable Principle

But, it is not an invariable principle. Two contra-situations are pointed out by Kerala High Court:

It is applied only against the party on whom the burden of proof lies;
It is not applicable where there is no much scope for any oral evidence.

In Mammu Haji and Company Vs. Vasanthalakshmi, 2014 -3 KHC 213 that this proposition of law laid down by the Apex Court applies only in cases where the party on whom the burden of proof lies withholds himself from adducing evidence. It is held as under:

“In short, this decision can be applied against the party on whom the burden of proof lies; but did not adduce evidence. In the instance case, the burden of proof absolutely lies on the defendant who claims protection under S.106 of the Act. Therefore, the non-examination of the plaintiff is not fatal and no adverse inference can be drawn against the plaintiff, where the lease arrangement is admitted as such by the defendant, and the entire burden of proof lies on the defendant.”

In Upendra Rao v. Ammini, ILR 2017-1 Ker 466, the Kerala High Court pointed out that the principle in Vidhyadhar v. Manikrao (that when a party to a suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, adverse presumption can be taken) cannot be applied to the facts of a case where there is not much scope for any oral evidence.

In P. Sukumaran v. K. A. Hamza Haji, ILR 2015-2 Ker 166, the Kerala High Court distinguished Vidhyadhar v. Manikrao observing as under”

“13. In Vidhyadhar’s case , the Apex Court was dealing with a case where the first defendant in the suit contended that, the sale deed executed by the second defendant in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- was paid as sale consideration to the second defendant. He further claimed that payment of Rs. 4500/- to the second defendant at his home before the registration of the deed was wholly incorrect. This plea was not supported by the first defendant as he did not enter the witness box. It was in such circumstances, the Apex Court held that, the non-examination of the first defendant, by itself, is enough to reject his claim that the transaction of sale between second defendant and the plaintiff was a bogus transaction.
14. But, in the case on hand, the tenancy in respect of the petition schedule building and the rate of rent are not in dispute. When a plea of discharge of rent is set up by the tenant, the burden is upon him to prove that plea of discharge and no adverse inference or a presumption under Section 114(g) of the Evidence Act, 1872, can be drawn against the landlord on his omission to appear as a witness and to state his own case on oath.”

In Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217, our Apex Court followed Vidhyadhar v. Manikrao, AIR 2005 SC 439, and held as under:

“No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.”

Adverse Inference –When Court cannot “Make Up its Mind”

It is only if the Tribunal or the Court feels it cannot “make up its mind” as to which of the version is true, it will be held that the party on whom the burden lies has not discharged the burden. See, Kumbhan Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278, where it was held as under:

“This section (Sec. 102) shows that the initial burden of proving a prima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. When, after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background.”
(Quoted in: Dulhin Mahabati Kuer v. Raghunandan Prasad Singh, AIR 1958 Pat 249, Surajbhan Kailash Chand v. Hari Shanker Vashsist, AIR 1976 Delhi 70, Krishne Gowda v. Ningegowda, ILR 1987 Kar 2883, Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel, 2020-1 GLH 261, Vinod Agrawal v. Bharat Kumar Lathi, ILR 2012 MP 84)

Burden of Proof Not Relevant when “Both Sides had Adduced Evidence”

In Moran Mar Basselios Catholicos v. Thukalan paulo Avira, AIR 1959 SC 31, the Constitution bench of the Supreme Court held as under:

The question of burden of proof at the end of the case when both the parties have adduced their evidence is not of very great importance and the Court has to come to a decision on a consideration of all the materials.

In Kalwa Devadattam v. Union of India, (1964) 3 SCR 191, the Supreme Court held as under:

“The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue; abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties. ”

In Arumugham v. Sundarambal, AIR 1999 SC 2216, it has been held as under:

“On the question of burden of proof we are of the view that even assuming burden of proof is relevant in the context of the amended provision of Sec. 100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay, failed to adduce any evidence altogether.”

“Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.”

Burden of proof remains only academic

It is held by the Supreme Court in Thiruvengada Pillai v. Navaneethammal, AIR 2008 SC 1541, that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the plaintiffs to establish that the document was forged or concocted. It is observed that the party who asserts something has to prove that thing. It is pointed out that when the plaintiff had come to Court alleging that the first defendant had executed an agreement of sale in his favour and when the defendant denied it, the burden was on the plaintiff to prove that the defendant had executed the agreement, and not on the defendant to prove the negative.

Even if No Plea, Propouner has to clear Suspicion

In K. Laxmanan v. Thekkayil Padmini, AIR 2009 SC 951, the Apex Court held that when there were suspicious circumstances regarding the execution of a Will, the onus was on the propounder to explain them to the satisfaction of the Court; and only when such responsibility was discharged, the Court would accept the Will as genuine. It was further observed that even where there were no such pleas, but circumstances gave rise to doubt, it was on the propounder to satisfy the conscience of the Court. These decisions are followed in Joseph John Peter Sandy v. Veronica Thomas Rajkumar, AIR 2013 SC 2028.

The Privy Council in Seturatnam v. Venkatachella, AIR 1920 PC 67, observed that where the parties have led all the evidence and relevant facts were before the court and all that remained for decision was what interference was to be drawn from them, the question of burden of proof was not important. In Chidambara v. Veerama, AIR 1922 PC 292, the Privy Council held that when entire evidence was once before the court, the debate as to onus of proof was purely academic. (See: Legal Heirs of Renushree Lahkar v. Pradip Kumar Lahkar, 2018-4 Gau LT 733).

Modes of Proof of Documents – Admission, Direct Evidence, Expert Evidence, Presumption etc.

Saji Koduvath, Advocate, Kottayam.

Documents produced in court have to pass through two steps. They are:

Admission and exhibition (if relevant)
Proof (or truth of contents, veracity, reliability, etc.).

The question of proof comes for consideration only if the first step (admission and exhibition, as relevant) is successfully covered. In Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180, our Apex Court held as under:

“Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility.”

Proof is of Two Types:

First, Formal Proof, or Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.

Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the contents of the document is established.

Proof as to truth is to be established-
- (i) by oral evidence of one who can vouchsafe the same or
- (ii) by circumstantial evidence or
- (iii) by invoking ‘presumption’ or
- (iv) by express admission by the other side.

Modes of Proof of Documents

Documents can be proved (both, ‘formal proof’ and ‘truth of the contents’) in the following ways:

Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Public documents – Sec. 74 – 77.
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. Lands/ houses are known by ‘names’ and not by Sy. Number. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)

Also Read Blog: Are RTI Documents Admissible in Evidence as a ‘Public Documents’?

Sec. 68 Evidence Act

Proof documents required by law to be attested, when one attesting witness at least is available.

Will: section 63 of the Succession Act.
Mortgage deed: section 59 of the T P Act.
Gift deed: section 123 of the T P Act.
Bond: 2(5) of the Indian Stamp Act, 1899.

Admission Cannot be Proved by the Person who Makes them

According to Sec. 21 of the Evidence Act, an admission cannot be proved by, or on the behalf of, the person who makes them because a person will always naturally make statements that are favourable to him. Sec. 32, 33, 34 etc. of the Evidence Act lays down exceptions to this rule. However, for comparison of hand writings and signatures, ante litem motam documents would have probative force (G. Govindaraj v. Smt. Saroja Ramakrishnan, 2013 (4) MLJ 164).

Ante litem motam documents

The Supreme Court had said in Harihar Prasad Singh v. Must. of Munshi Nath Prasadand, AIR 1956 SC 305, that ante litem motam documents that extend over a considerable period of time, form cogent and strong evidence that the lands were private lands.

Presumption & Circumstantial Evidence

St. of West Bengal Vs. Mir Mohammad Omar (AIR 2000 SC 2988) it is held by our Apex Court as under:

“Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

It is held as under in Mobarik Ali Ahmed Vs. State of Bombay (AIR 1957 SC 857) as under:

“The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship.”

If payment of price is disputed, Some Oral Evidence is needed for ‘proof’.

In Suresh CV v. Tobin, ILR 2013(1) Ker. 30, the Kerala High Court held that if payment of price for sale was disputed, such fact would not be proved by mere production and marking of a registered sale deed which stated or narrated the payment, and that it was necessary to adduce oral evidence to prove such fact. The Court relied on Ramji Dayawala Vs. Invest Import (AIR 1981 SC 2085) which held that if the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document and that the truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.

Proof must be by persons who can vouchsafe for the truth

Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003-8 SCC 745) held:

“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”.

Is it necessary to file an application for ‘permission’ to lead secondary evidence

It is observed by the Bombay High Court (2017) in Shri. Karthik Gangadhar Bhat v. Smt. Nirmala Namdeo Wagh (indiankanoon) that the insistence on filing an application for ‘permission’ to lead secondary evidence is ‘simply wrong‘. The court referred to an earlier decision, Indian Overseas Bank v. Triokal Textile Industries, AIR 2007 Bom 24 where it was held that it was always open to the party to lead secondary evidence before the Trial Court recording evidence or hearing the matter ‘without having to file such an application’.

PRESUMPTION under Sec. 114, Evid. Act read with Sec. 35.

Sec. 35 Evd. Act speaks on ‘an entry in any public or other official book, register or record or an electronic record’. Sec. 35 Evd. Act speaks as to presumption.

Besides direct evidence, or admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, can be used to prove the existence and genuineness/truth of a document.

Sec. 35 of the Evidence Act reads as under:

“35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.

Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases, over and above ‘common course of natural events’, ‘human conduct’ etc. that are brought-forth under the body of S. 114. ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..

Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held by our Apex Court in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.

In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:

“The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”

In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under

“Where Sec. 35 properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).

In Durairaju v. Neela, 1976 CriLJ 1507, Ratnavel Pandian, J., it was held that it was the duty of the court, before making the order for maintenance, to find though in a summary manner, the paternity of the child. It was held that Ex. P. 1, the intimation received by the Municipality from the Government Hospital, and Ex. P. 2 a copy of the birth extract made on the basis of Ex, P. 1, were not sufficient to raise presumption of paternity for, the medical officer who made the entries in Ex. P. 1 had not been examined. The author of the information is not mentioned in Ex. P. 1. PW 2 herself had not stated that she mentioned to the doctor that the child was born to her through the petitioner. In the absence of such evidence, the document could not by itself prove the relevant entries made thereon. It was also observed that to prove a document under Section 35 it must be shown that the document was prepared by a public servant in discharge of his official duty or by any person in performance of a duty specially enjoined by the law.

Record of rights and the record of Permanent Settlement

Our Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, as under:

“This brief review of evidence is sufficient to show that appellant has not been able by clear and conclusive evidence to rebut the presumption arising from the Record of rights and the record of Permanent Settlement and he has failed to establish his claim”.

In Vallikunnil Janaki Amma v. Sree Amruthamangalam Kshethram Moorthi, Kozhikode, 2014 (1) KHC 57, Kerala High Court Court referring to the decision of the Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, held as under:

“Even though Ext. A2 is only an extract of the Settlement Register/ Adangal extract which may not by itself prove or confer title to a party in whose name the property stood registered, it can be accepted as evidence of title when there is no contra evidence. Admittedly it is adjacent to Amruthamangalam temple. The temple compound and this suit property which is adjacent to the temple are shown to be of Amruthamangalam Devaswom as per revenue record. In these circumstances, the contention that this property did not and does not belong to the temple/Devaswom cannot be sustained at all.” (Referred to in: Kunhimangalam Devaswam v. State of Kerala, 6 April, 2022, Anil K. Narendran, J.)

Revenue Settlement Registers of Travancore in 1910, Basic Record of Land matters

The Kerala High Court held in Mohandas v. Santhakumari Amma, 2018-3 KLT 606 as under:

“We notice that, a new survey and settlement was undertaken in the erstwhile Travancore State for the purpose of putting in place a sound Revenue administration. Accordingly, it appears that a complete survey and reassessment of the entire State ’embracing an accurate measurement, demarcation, mapping and valuation of properties of every description and a registration of titles, as the basis of a sound Revenue Administration’ was carried out. On the basis of such a statement a proclamation was issued by the Maharaja of Travancore on 14 th Kumbhom 1061 corresponding to 24th February 1886.”

If Settlement Register says Government Land, Petitioner to Establish Title

In Sahana Industries v. State of Kerala (2021 KHC OnLine 7110), Kerala High Court (Devan Ramachandran, J.) held (October 11, 2021) as under:

“… If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents”.

Presumption of Correctness Attached to a Registered Deed

In the split-verdict in Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV Nagaratna, J., held as under:

“18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”

BV Nagaratna, J. referred the following decisions-

Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
Chottey Lal v. The Collector of Moradabad, AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).

Production of PoA Not Essential for Proving Regd. Sale Deed Executed through PoA

In Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, the sale of property under consideration was made on behalf of the seller to the buyer through the power of attorney. The power of attorney was not produced before the Court. The High Court observed that the sale was not proved as the PoA was not produced. Refuting the observation of the High Court, BV Nagaratna, J., in the split-verdict, held as under:

“18. … However, a registered deed has to be proved in accordance with Section 67 of the Evidence Act, 1872. Section 67 states that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Section 67 states that proof of signature and the genuineness of document proved by the proof of handwriting is proof of execution. Execution of a document means signing a document by consenting on it by a party. Section 67 does not prescribe any particular mode of proof. Mere registration of a document is not self-sufficient proof of its execution. It is only a prima facie proof of its execution particularly when no other evidence is available. Registration of a document is evidence of its execution by its executor. Certificate by registering officer under Section 60 of the Registration Act, 1908 is relevant for proving its execution. Proof by evidence afforded by the contents of the documents is of considerable value. In the instant case, what is sought to be proved is title by the sale deed and not the power of attorney as it is the sale deed which conveys title and the sale deed has been executed in accordance with the provisions of Registration Act, 1908, and proved in accordance with Section 67 of Evidence Act. It cannot be held that the sale made on behalf of the seller (original owner of the suit land) to the buyer through the power of attorney is vitiated as the power of attorney was not produced before the Court. This is because even in the absence of the production of the power of attorney, the contents of the sale deed and the execution of the power of attorney as well as the sale deed have been established by proving the sale deed in accordance with the law.”

Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Courts to admit documents Without Proof

Section 163 of the Evidence Act, reads as under:

163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:

“The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”

It is noteworthy that Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively). In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.

Oral Evidence on contents of Documents – No Use, Unless Secondary Evidence Entitled

Sec. 22, 22A and 144 of the Evidence Act postulate that the oral admissions or assertions as to contents of documents are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under Sec. 65, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises that oral evidence as to contents of documents , even if adduced, will be of no use, as it will be ‘irrelevant’. By virtue of Sec. 144 of the Evidence Act, the adverse party may object to giving oral evidence as to contents of the same until such document itself is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Sec. 22 and 22A of the Evidence Act reads as under:

22. When oral admissions as to contents of documents are relevant: Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.
22A. When oral admissions as to contents of electronic records are relevant: Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.

Sec. 144 of the Evidence Act reads as under:

144. Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Sec. 59 of the Evidence Act lays down that contents of documents (or electronic records) are to be proved by oral evidence. Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court. Sec. 64 of the Act requires that that the documents to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.

Sections 22, 59, 61, 62 and 64 of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)

Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded. Both these provisions are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6 SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7 SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).

The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:

“The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”

However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106).

Admission of Contents of Document in Pleadings

In Perumal Chettiar VS Kamakshi Ammal, AIR 1938 Mad 785; ILR 1938 Mad 933, it is held as under:

“Section 22 of the Indian Evidence Act adopted the stricter view and relegated oral admissions as to the contents of a document to the category of ‘secondary evidence’. The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 : 32 E.R. 1215 and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488 because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918)35MLJ555 This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra I.L.R.(1893) 18 Bom. 369 where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”

Specific Presumptions in Evidence Act, as to Electronic Records

Sec. 81A. Presumption as to Gazettes in electronic forms
Sec. 85A. Presumption as to electronic agreements
Sec. 85B. Presumption as to electronic records and electronic signatures
Sec. 85C.Presumption as to Electronic Signature Certificates
Sec. 88A. Presumption as to electronic messages

81A. Presumption as to Gazettes in electronic forms

The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody

85A Presumption as to electronic agreements

The Court shall presume that every electronic record purporting to be an agreement containing the electronic signature of the parties was so concluded by affixing the electronic signature of the parties.

85B Presumption as to electronic records and electronic signatures

(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

(2) In any proceedings, involving secure electronic signature, the Court shall presume unless the contrary is proved that—

(a) the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;

(b) except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.

85C Presumption as to Electronic Signature Certificates

The Court shall presume, unless contrary is proved, that the information listed in a Electronic Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.

88A. Presumption as to electronic messages

The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

“Explanation: For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.

Admission by itself cannot confer title

In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, our Apex Court made the following forceful propositions:

In a recovery on title suit, the burden is on the plaintiff to establish title.
Court is also entitled to consider the rival title set up by the defendants.
Weakness of defence to establish title, would not enable plaintiff to a decree.

The Supreme Court held in Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577 as under:

“The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
“14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”

End Notes

1. Proof is of Two Types:

First, Formal Proof, or Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.
Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the contents of the document is established.

2.Modes of Proof of Documents

Documents can be proved (both, ‘formal proof’ and ‘truth of the contents’) in the following ways:

Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Public documents – Sec. 74 – 77.
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)

3. Proof as to truth is to be established-

(i) by oral evidence of one who can vouchsafe the same or
(ii) by circumstantial evidence or
(iii) by invoking ‘presumption’ or
(iv) by express admission by the other side.

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Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Divorce

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Withholding Evidence & Adverse Inference

Saji Koduvath.

Legal Propositions discussed

1. Burden of proof is always static and does not shift; onus of proof shifts.
- Burden of proof it is upon whom who suffers, if no evidence on the question in dispute.
- Burden of proof would be on the party who asserts the affirmative of the issue.
- Plaintiff has to win on title – A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary.
- But it must be noted that the plaintiff need to show only a high degree of probability and that it shifts the onus on the defendant.
- Court is Entitled to Consider the Title set up by the Defendants also.
2. Burden of Proof loses significance if both parties adduced evidence.
3. Suit on title & high degree of probability– If plaintiff discharges his burden by showing high degree of probability (that the title vests in him), onus shifts.
- Onus of proof ‘shifts’ on adducing adequate evidence by the party concerned.
- If the defendant fails to release the onus shifted, the burden on plaintiff shall stand discharged (and the title with the plaintiff is inferred).
4. Adverse inference is drawn when a party withholds documents, even if he has no burden.
- If a party does not examine himself: Adverse inference is drawn if a party does not examine himself: But, it is Not an Invariable Rule.
- Adverse inference is taken after considering (a) pleadings, (b) relevancy of the withheld evidence and (c) burden of proof.
- Presumption and adverse inference for non-production of evidence are always optional.
5. If the defendant establishes his right as lessee etc. If the defendant establishes his right to continue possession as lessee, licencee, mortgagee etc. (honouring title of the plaintiff) the plaintiff’s suit for possession will fail.

Primary Principles on Burden of Proof

Burden of proof is static
- The burden of proof is always static and does not shift.
Burden of proof lies on the person, who would fail if no evidence is adduced on either side.
Ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.
Burden of proof loses its importance (and remains academic)
- (a) if both parties adduced evidence
  - (Mohd. Abdullah Azam Khan v. Nawab Kazim Ali Khan, 2023 KLT OnLine 1084 (SC),
  - Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94,
  - Arumugham v. Sundarambal, AIR 1999 SC 2216;
  - Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040 (remains academic),
  - Union of India and Others v. Sugauli Sugar Works (P) Ltd., (1976) 3 SCC 32,
  - Cox and Kines (Azents) Ltd. v. Their Workmen and Others, AIR 1977 SC 1666)
- (b) when there is sufficient evidence on an issue.
Burden of proof gets significance
- (a) when no evidence,
- (b) when no adequate evidence so as to shift onus, or
- (c) when best evidence withheld.
- (d) when Court cannot “Make Up its Mind” (Kumbhan Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278).
Onus of proof ‘shifts’
- Onus of proof ‘shifts’ on adducing adequate evidence by the party upon whom the onus lies, and thus discharging his burden.

Our Apex Court held (per B. V. Nagarathna, J.) in Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022, Ajay Rastogi, B. V. Nagarathna, JJ., as under:

“12.7. Where, however, evidence has been led by the contesting parties, abstract considerations of onus are out of place and truth or otherwise must always be adjudged on the evidence led by the parties [Kalwa Devadattam v. Union A.I.R. 1964 SC 880]”

Plaintiff able to create a high degree of ‘probability’, Onus Shifts

In the case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple reported in AIR 2003 SC 4548, the Hon’ble Apex observed as under:

“There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which, never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title”. (quoted in: Narendra Singh Panwar v. The State of Madhya Pradesh, 2021 Cr LJ 934)

Our Apex Court in Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2023 KLT OnLine 1084 (SC), authoritatively lays down the General principles as to Burden of Proof. It reads:

12.1. The legal scheme governing various aspects of ‘burden of proof’ in the Indian context, is contained in Sections 101 to 106 of the Indian Evidence Act.
12.2. As per Section 101 of the Indian Evidence Act, 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 is based on the rule, ei incumbit probatio qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, because a negative is usually incapable of proof. The burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. However, the above rule is subject to the general principle that things admitted need not be proved.
12.3. The question as to whether burden of proof has been discharged by a party to the lis or not, would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a Court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lies would still be liable to produce direct evidence, vide National Insurance Co. Ltd. vs. Rattani (2009) 2 SCC 75: AIR 2009 SC 1499.
12.4. Burden to prove documents lie on plaintiff alone as onus is always on the person asserting a proposition or fact which is not selfevident. This position is summarised in the observation to the effect that, an assertion that a man who is alive was born requires no proof; the onus, is not on the person making the assertion, because it is selfevident that he had been born. But to assert that he had been born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion, vide Robins vs. National Trust & Co. Ltd. 1927 AC 515: 101 IC 903.
12.5. It is also to be noted at this juncture that there is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon a person who has to prove the fact and it never shifts, onus of proof on the other hand, shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. For instance, In a suit for possession based on title, once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof, the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title, vide RVE Venkatachala Gounder vs. Arulmigu Viswesaraswami and VP Temple AIR 2003 SC 4548: (2003) 8 SCC 752.
12.6. In terms of section 102 of the Evidence Act, the initial burden to prove its claim is always on the plaintiff and if he discharges that burden and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff of the same.
12.7. Where, however, evidence has been led by the contesting parties, abstract considerations of onus are out of place and truth or otherwise must always be adjudged on the evidence led by the parties [Kalwa Devadattam vs. Union, AIR 1964 SC 880]
12.8. As per Section 103, 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. This section amplifies the general rule in section 101 that the burden of proof lies on the person who asserts the affirmative of the issue. It lays down that if a person wishes the court to believe in the existence of a particular fact, the onus of proving that fact, is on him, unless the burden of proving it is cast by any law on any particular person.
12.9. Section 105 is an application of the rule in section 103. When parties to a dispute adduce evidence to substantiate their claim, onus becomes academic and divided, entailing each party to prove their respective plea.
12.10. Section 106 is an exception to the general rule laid down in Section 101, that the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue. Section 106 is not intended to relieve any person of that duty or burden but states that when a fact to be proved is peculiarly within the knowledge of a party, it is for him to prove it. It applies to cases where the fact is especially within a party’s knowledge and to none else. The expression ‘especially’ used in Section 106 means facts that are eminently or exceptionally within one’s knowledge. This means a party having personal knowledge of certain facts has a duty to appear as a witness and if he does not go to the witness box, there is a strong presumption against him. In an Election Petition, the initial burden to prove determination of age of returned candidate lies on the petitioner, however, burden lies on the respondent to prove facts within his special knowledge. (Sushil Kumar vs. Rakesh Kumar [ (2003) 8 SCC 673) ].
12.11. The provisions of Section 106 are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. If he does so, he must be held to have discharged his burden but if he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. [Source: Sarkar on Law of Evidence, 20th Edition, Volume 2.]
12.12. In Sushil Kumar vs. Rakesh Kumar (supra), the controversy was with regard to the improper acceptance of the nomination of the sole respondent therein on the premise that he was under qualified to contest the Bihar Legislative Assemble election from 181, Parbatta Constituency. In the said case, inter alia, the horoscope of the respondent therein and admission register of New St. Xaviers School, Boring Road, Patna and transfer certificate issued by Swami Vivekananda Vidyalaya, Mithapur, Patna, were produced as documents to prove that the successful candidate therein was not eligible to contest the said Assembly election. In the said case, Section 35 of the Indian Evidence Act was referred to and it was observed that the register maintained in terms of a statute or by a statutory authority in regular course of business would be a relevant fact and if such vital evidence had been produced, it would clinch the issue. It was observed that there is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person and that the admission register or a transfer certificate issued by a primary school do not satisfy the requirements of Section 35 of the Evidence Act.

In Narendra Singh Panwar v. The State of Madhya Pradesh, 2021 Cr LJ 934, it is observed as to Blood Group as under:

“27. Thus it is proved that there was one commonality of blood group between the clothes of both the appellants (accused) and the handkerchief found on the spot.
28. Learned counsel submits that the prosecution has not proved that the blood group of the deceased was also of ‘B’ group. This submission is not acceptable. Onus now shifted upon the accused persons to show that their own blood group was not of ‘B’ group. The Supreme Court in the case of A. Raghavamma vs. A. Chenchamma in AIR 1964 S.C. 136 has held as under :-
- “1 to 12……. 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. …..”

Unregistered PoA Withheld – Adverse Inference Drawn

In K.J.Abraham v. Mariyamma Itty, 2016-3 KerHC 718, ILR 2016-3 Ker 98, Hariprasad, J. held that withholding an unregistered power of attorney, on the basis of which a sale deed was executed, invited adverse inference. It is pointed out that unregistered PoA ‘would be preserved as a permanent record by any prudent person’.

Suit on Title – Both Parties Claim Title – Plaintiff Shows High Probability, Onus Shifts

In a suit for recovery on title, where both plaintiff and defendant claim title, if plaintiff has been able to create a high degree of probability, he will Win, if the defendant fails to discharge his onus. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is stated in the following terms :

“29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.” (Quoted in: Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200)

In Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9,it is held bu our Apex Court as under:

“31. The burden of proof
- [See Paragraph 19 in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 where the expression ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others.]
to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief [See Addagada Raghavamma and Another v. Addagada Chenchamma and Another, AIR 1964 SC 136.] This is mandated in terms of Sec. 101
- [Sec. 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.]
of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions,[See Ss. 103, 104 and 105 of the Evidence Act.] but in the factual background of the present case, the general principle is applicable. In terms of Sec. 102
- [Sec. 102: On whom the 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.]
of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.[See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558.] Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.[See R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami V.P. Temple and Another, (2003) 8 SCC 752.] ……
Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”

Burden of proof and Onus of proof

The Supreme Court in the case of Gian Chand and Bros v. Rattan Lal, (2013) 2 SCC 606, has held as under:

18. It is well-settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. In Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558] (SCC p. 561, para 9), it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it and the said principle may not be universal in its application and there may be an exception thereto. The purpose of referring to the same is that if the plaintiff asserts that the defendant had acknowledged the signature, it is obligatory on his part to substantiate the same. But the question would be what would be the consequence in a situation where the signatures are proven and there is an evasive reply in the written statement and what should be construed as substantiating the assertion made by the plaintiff.
19. In Krishna Mohan Kul v. Pratima Maity [(2004) 9 SCC 468] it has been ruled thus: (SCC p. 474, para 12) “12. … When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation.”
20. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] a Constitution Bench of this Court, while dealing with a mode of proof of a will under the Succession Act, 1925 observed that where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.
21. In A. Raghavamma v. A. Chenchamma [AIR 1964 SC 136], while making a distinction between burden of proof and onus of proof, a three-Judge Bench opined thus: (AIR p. 143, para 12) “12. … 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. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.”

‘Onus Probandi’ and Sec. 106 of the Evidence Act

The Latin maxim, Onus Probandi, means ‘burden of proof’. This maxim generally conveys the rule and idea that one who asserts a positive fact has to prove it.

Sec. 101 to 103 of the Indian Evidence Act, 1872, deal with the burden of proof in general. Sec. 104 to 106 deal with specific situations.

In an election case, referring Sec. 106 and Sec. 114 of the Evidence Act, the Supreme Court reversed the judgment of the High Court, in Puneet Rai vs. Dinesh Chaudharv. (2003) 8 SCC 204, observing that the onus was on the respondent to prove that he belongs to ‘Passi’ community which falls in the Schedule caste category.

In Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673, the Supreme Court reversed the decision of the High Court finding that the burden of proving the age of the elected candidate (above 25 years) was upon him. The Apex Court held as under:

“28. It is no doubt true that the burden of proof to show that a candidate who was disqualified as on the date of the nomination would be on the election petitioner.
29. It is also true that the initial burden of proof that nomination paper of an elected candidate has wrongly been accepted is on the election petitioner.
30. In terms of Section 103 of the Indian Evidence Act, however, 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.
31. Furthermore, in relation to certain matters, the fact being within the special knowledge of the respondent, the burden to prove the same would be on him in terms of Section 106 of the Indian Evidence Act. However, the question as to whether the burden to prove a particular matter is on the plaintiff or the defendant would depend upon the nature of the dispute.
32. The age of a person, in an election petition has to be determined not only on the basis of the materials placed on records but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of Section 106 of the Evidence Act. It is also trite that when both parties have adduced evidence, the question of onus of proof becomes academic [See Union of India and Others vs. Sugauli Sugar Works (P) Ltd., (1976) 3 SCC 32,(Para 14) and M/s Cox and Kines (Azents) Ltd. vs. Their Workmen and Others, AIR 1977 SC 1666, (Para 36)]. Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established.”

Prosecution to discharge the onus to Invoke Sec. 106

The Supreme Court held in Shambu Nath Mehra v. State of Ajmer (AIR 1956 SC 404), as under:

“This 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 Supreme Court held in Anees v. The State Govt. of NCT, 2024 INSC 368, as under:

“Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed.”

In Nusrat Parween v. State Of Jharkhand (Neutral Citation: 2024 INSC 955), it is held, following Shambu Nath Mehra v. State of Ajmer and Anees v. The State Govt. of NCT, as under:

“There is no credible evidence on record of the case to establish the exclusive presence of the accused-appellants with Hamida Parween (deceased) in the house in question at any time before the incident, justifying the shifting of the burden of proof on to the accused-appellants by invocation of Section 106 of the Evidence Act. Thus, the theory of last seen together attributed by the prosecution could not be proved beyond all manner of doubt.”

‘Onus Probandi’ and Rule of ‘Best Evidence’

“20. Chapter VII in Part-Ill of the Evidence Act, 1872 examines the burden of proof and onus of proof or “onus probandi”. Section 101 lays down that whosoever, wants the court to give judgment as to any legal right or liability dependent on the existence of fact, which he asserts, must prove that those facts exist. However, Section 106 provides that any fact which is essentially within the knowledge of any person, the burden of proving that fact is upon him. Illustration-b to Section 106 specifically provides that if A is charged with travelling on a railway train without ticket, the burden of proving that he had bought a ticket is on the person who was found travelling. Still further, illustration ‘g’ of Section 114 require production of best evidence before the Court/authority. It lays down that the evidence which could be but is not produced, would be deemed to be unfavourable to the person who holds it from the Court/authority. It means that if a person fails to produce the best evidence which he could produce then the presumption would be that the aforesaid evidence, if had been produced, would be unfavourtable to the person, who withholds it.”

Also Read: Best Evidence Rule in Indian Law

Burden of Proof – Weakness of the Defence cannot be a Justification

This principle applies in both civil and criminal cases. In M. Srinivasulu Reddy v. State Inspector of Police, 1991 (3) ALT 542, 1993 CriLJ 558, it is held as under:

“The prosecution cannot take advantage of the weaknesses of the defence or cannot take advantage of the inconsistent stand taken by the accused from time to time. The prosecution must stand on its own legs basing on the evidence that has been let in by it.”

In Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9,it is held bu our Apex Court as under:

…… The weakness of the defence cannot be a justification to decree the suit. [See Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others, (2014) 2 SCC 269.] The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Ss. 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes (DEAD) Through LRs. And Others v. K.V.P. Shastri (DEAD) Through LRs. And Others, (2013) 15 SCC 161.]
Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”

Burden of Proof never shifts, But Onus of Proof shifts

As stated above, onus of proof ‘shifts’ on adducing adequate evidence by the party upon whom the onus lies, and thus discharging his burden.
In Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136, the Apex Court held as under:

“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. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.”

Read Blog: Burden of Proof – Initial Burden and Shifting Onus of Proof

Is Burden of Proof Not Relevant when Both Sides had Adduced Evidence

In Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31, the Constitution bench of the Supreme Court held as under:

The question of burden of proof at the end of the case when both the parties have adduced their evidence is not of very great importance and the Court has to come to a decision on a consideration of all the materials.

In Kalwa Devadattam v. Union of India, (1964) 3 SCR 191, the Supreme Court held as under:

“The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue; abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties. ”

In Arumugham v. Sundarambal, AIR 1999 SC 2216, it has been held as under:

“On the question of burden of proof we are of the view that even assuming burden of proof is relevant in the context of the amended provision of Sec. 100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay failed to adduce any evidence altogether.”

“Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.”

The Privy Council in Seturatnam v. Venkatachella, AIR 1920 PC 67, observed that where the parties have led all the evidence and relevant facts were before the court and all that remained for decision was what interference was to be drawn from them, the question of burden of proof was not important. In Chidambara v. Veerama, AIR 1922 PC 292, the Privy Council held that when entire evidence was once before the court, the debate as to onus of proof was purely academic. (See: Legal Heirs of Renushree Lahkar v. Pradip Kumar Lahkar, 2018-4 Gau LT 733)

Will – Burden to Prove Coercion, Undue Influence or Fraud, on him who alleges it

In V. Kalyanaswamy v. L. Bakthavatsalam, the Supreme Court held as under:

“83. Lastly, while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same.”

It is made clear-

The burden to prove that the Will is free from suspicious circumstances is on the propounder.
If there are suspicious circumstances to explain, the propounder has to explain them.
(However), if the respondent alleges that the Will is procured by coercion, undue influence or fraud, the burden to prove such allegations is on the respondent.

In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, 2006 (14) SCALE 186,

“The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See: Madhukar D. Shende v. Tarabai Shedage, 2002-2 SCC 85 and Sridevi v. Jayaraja Shetty, 2005-8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.” (Quoted in: Savithri v. Karthyayani Amma, 2007-11 SCC 621)

Burden of proof loses its importance (and remains academic) if both parties adduced evidence – Does it mean that Sec. 102 to 111 have no Significance?

Answer – Never.

The court when analyses the evidence (at the time of verdict) it should proceed without being considering the “Burden of Proof” if

(a) both parties adduced evidence or
(b) there is sufficient evidence on an issue.

But, no doubt, it does not mean that the consequences of

‘no sufficient evidence‘,
‘no evidence adduced as to facts in especial knowledge of a party‘, etc.

shall have no effect; on the contrary, the edicts in the provisions in Sec. 102 to 111 Evid. Act will follow with its full vigor.

Our Apex Court in National Insurance Company Limited v. Rattani, 2009-2 SCC 75: AIR 2009 SC 1499, it is observed as under:
“14. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.” (See also: Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022 (11 ) JT 214: 2022 (16 ) SCALE 689: 2023 KLT OnLine 1084 (SC), National Insurance Company Ltd. v. Savitri Devi, 2013-11 SCC 554.)

As shown earlier, in a suit for recovery on title, where both plaintiff and defendant claim title, if plaintiff has been able to create a high degree of probability, he will Win, if the defendant fails to discharge his onus (R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752).

Adverse Inference Drawn, if one Withholds Documents (Even if no burden)

The Supreme Court observed in Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, as under:

“Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manichavasaka Pandara Lord Shaw observed as follows:
- “A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision.. With regard to 44 I. A. 98, at P. 103. third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships’ opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.”

This passage was cited with approval by this Court in a recent decision: Biltu Ram v. Jainandan Prasad . In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desrai Ranjit Singh.

But Shah, J., speaking for the Court, stated:
- “The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration(g) of s. 114 of the Evidence Act, and also an impressive body of authority.”

Mere Non-Production of Documents would NOT result in Adverse Inference

In Mahendra L. Jain v. Indore Development Authority, (2005) 1 SCC 639, the Supreme Court held that mere non-production of documents would not result in adverse inference. If a document was called for in the absence of any pleadings, the same was not relevant. An adverse inference need not necessarily be drawn only because it would be lawful to do so.

In Manager, R.B.I., Bangalore v. S. Mani, AIR 2005 SC 2179, the Industrial Tribunal directed the employer to produce the attendance register. The explanation thereto was that the attendance registers being very old, could not be produced. The Tribunal drew an adverse inference. The respondents did not adduce any evidence whatsoever. Apex Court reversed the finding observing as under:

“The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle.”

Similar view is stated in the following decisions:

Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96;
Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256;
Smt. Indira Kaur v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074;
Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy, AIR 2003 SC 3342, Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214;
Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328;
Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681;
A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534;
R.M. Yellatti v. Assistant Executive Engineer, AIR 2006 SC 355;
Pratap Singh v. State of M.P., AIR 2006 SC 514;
Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134,
Ravi Yashwant Bhoir v. District Collector, Raigad, AIR 2012 SC 1339,

Referring all the aforesaid decisions it is held in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, as under:

“16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court’s order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.”

All the Pros and Cons be examined; ‘Other Larger Evidence’ be Looked Into

In Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy, AIR 2003 SC 3342, our Apex Court held that all the pros and cons must be examined before drawing an adverse inference against a party. In that case the issue had been, as to whether two persons had been travelling together in the vehicle and presumption had been drawn on the basis that the bus tickets of both the persons were not produced. This Court held that presumption could not have been drawn if other larger evidence was shown to the contrary. (See also: Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214; and Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328).

In Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96, a view has been expressed that it was open to a litigant to refrain from producing any document that he considered irrelevant; if the other litigant was dissatisfied, it was for him to apply for interrogatories/inspections and production of documents. If he failed to do so, neither he nor the Court at his suggestion, was entitled to draw any inference as to the contents of any such documents. (See also: Union of India v. Ibrahim Uddin, (2012) 8 SCC 148; R. Chinnasamy v. T. Ponnusamy 2018- 5 MLJ 661)

In Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256, our Apex Court held that mere withholding of documentary evidence by a party was not enough to draw adverse inference against him. The other party must ask the party who was in possession of such evidence to produce the same, and in case the party in possession did not produce it, adverse inference could have been drawn. (See also: Union of India v. Ibrahim Uddin, (2012) 8 SCC 148; R. Chinnasamy v. T. Ponnusamy 2018- 5 MLJ 661)

Party Does Not Examine -Adverse Inference if only he is a Material Witness

“The true object to be achieved by a Court of Justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected to all its particulars to cross-examination.”

Adverse Inference if a Party Not Examine Himself: Not an Invariable Rule

In Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457 the Supreme Court observed as under:

“17…..Having not entered into the witness-box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872.” (Quoted in: Iqbal Basith v. N. Subbalakshmi, (2021) 2 SCC 718)

The Supreme Court also observed in Vidhyadhar v. Manikrao, AIR 1999 SC 1441, as under:

“Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”

But, it is not an invariable principle. Two contra-situations are pointed out by Kerala High Court:

It is applied only against the party on whom the burden of proof lies;
It is not applicable where there is no much scope for any oral evidence.

“In short, this decision can be applied against the party on whom the burden of proof lies; but did not adduce evidence. In the instance case, the burden of proof absolutely lies on the defendant who claims protection under S.106 of the Act. Therefore, the non – examination of the plaintiff is not fatal and no adverse inference can be drawn against the plaintiff, where the lease arrangement is admitted as such by the defendant, and the entire burden of proof lies on the defendant.”

In P. Sukumaran v. K. A. Hamza Haji, ILR 2015-2 Ker 166, the Kerala High Court distinguished Vidhyadhar v. Manikrao observing as under”

“13. In Vidhyadhar’s case , the Apex Court was dealing with a case where the first defendant in the suit contended that, the sale deed executed by the second defendant in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- was paid as sale consideration to the second defendant. He further claimed that payment of Rs. 4500/- to the second defendant at his home before the registration of the deed was wholly incorrect. This plea was not supported by the first defendant as he did not enter the witness box. It was in such circumstances, the Apex Court held that, the non-examination of the first defendant, by itself, is enough to reject his claim that the transaction of sale between second defendant and the plaintiff was a bogus transaction.
14. But, in the case on hand, the tenancy in respect of the petition schedule building and the rate of rent are not in dispute. When a plea of discharge of rent is set up by the tenant, the burden is upon him to prove that plea of discharge and no adverse inference or a presumption under Section 114(g) of the Evidence Act, 1872, can be drawn against the landlord on his omission to appear as a witness and to state his own case on oath.”

In Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217, our Apex Court followed Vidhyadhar v. Manikrao, AIR 2005 SC 439, and held as under:

“No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.”

Presumption – Official Acts, Regularly Performed. Onus on whom Disputes

In Iqbal Basith v. N. Subbalakshmi, (2021) 2 SCC 718, it is observed by our Apex Court as under:

“12. Both the courts then proceeded to consider the title of the appellants to decide lawful possession. The respondents had themselves produced a certified copy of Ex. D1 dated 07.09.1946. The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor O.A. Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for nonproduction of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

No Express Plea – Issue Covered by Implication, Evidence can be Relied on

When Court cannot “Make Up its Mind”

It is only if the Tribunal or the Court feels it cannot “make up its mind” as to which of the version is true, it will be held that the party on whom the burden lies has not discharged the burden (See Kumbhan Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278.

This section (Sec. 102) shows that the initial burden of proving a prima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. When, after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background.” (Quoted in: Dulhin Mahabati Kuer v. Raghunandan Prasad Singh, AIR 1958 Pat 249, Surajbhan Kailash Chand v. Hari Shanker Vashsist, AIR 1976 Delhi 70, Krishne Gowda v. Ningegowda, ILR 1987 Kar 2883, Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel, 2020-1 GLH 261, Vinod Agrawal v. Bharat Kumar Lathi, ILR 2012 MP 84)

Plaintiff Fails to Create ‘Probability‘ and Defendant ‘Withholds Documents‘

From R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is clear –

in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.

From Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, it is also clear –

Even if a party to the suit has no burden, the Court can draw an adverse inference if he withholds important documents in his possession.

Presumptions on Registered Document – VALIDLY EXECUTED

Section 35 in the Registration Act, 1908 says that the Registrar allows registration of a document (i) if only he is satisfied as to the identity of the person who executes the document, and (ii) if the executant admits the execution of the document.
Presumptions can be invoked in view of the Sec. 58 and 59 Sec. 60 (certificate) of the Registration Act. The presumption of regularity of official acts in Illustration (e) of Section 114 of the Evidence is also attached to a registered deed.
In short, the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
Therefore, there is a presumption – registered document is validly executed –
- Prem Singh v. Birbal, AIR 2006 SC 3608;
- Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
- Jamila Begum v. Shami Mohd., AIR 2019 SC 72;
- Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506.
A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.
The facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof – Bhagat Ram v. Suresh, AIR 2004 SC 43.

Registered Deeds: Proof of CORRECTNESS drawn, Invoking Presumption

Besides the presumption on a registered document that it is validly executed, there is also a presumption that the “transaction is a genuine one” (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713; Jamila Begum v. Shami Mohd., AIR 2019 SC 72) .
And, there is a presumption of Correctness also (Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, BV Nagaratna, J.). The onus of proof, therefore, would be on the person who questions the same.

Do Presumptions as to VALID EXECUTION & CORRECTNESS Import TRUTH?

Two views emerge on registered documents-

First, Presumption as to VALID EXECUTION & CORRECTNESS lead to further (invariable) Presumption as to ‘truth’.
Second (and more cogent), under Sec. 114 of the Evidence Act, court may presume the existence of any fact. In most cases, the court will infer ‘truth’ if there is presumption as to VALID EXECUTION & CORRECTNESS. But, in proper cases, the court can desist to deduce ‘truth’ despite presumption as to VALID EXECUTION & CORRECTNESS.

In short, Presumptions as to VALID EXECUTION & CORRECTNESS may Import TRUTH. It may result:

1. ShiftBurden in Most cases. The party in whom the ‘burden of proof’ rests can rely on ‘registration certificate’ as proof and truth of the contents of the deed.
- The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
It being presumed to be VALID & CORRECT, it further gives a presumption as to truth of the contents also, under Sec. 114 Evid. Act (regard being had to the common course of natural events, human conduct etc.).
There being presumption as to ‘VALID EXECUTION & CORRECTNESS’ and thereby presumption as to truth of the contents also, the onus of proof is shifted upon the party who challenges the presumption as to truth of the contents.
2. No Question of Shifting Burden in certain cases. But, the above proposition is not an invariable rule. If it comes out from the pleadings, documents or issues that the burden is upon the person who produced the registered document to prove its truth, the presumed presumption will not help him.
- For example – The executant of the registered deed would not have executed such a deed, in all probabilities (regard being had to the common course of natural events, human conduct etc.) as revealed from the pleadings or documents produced; or, its untrue nature can be (prima facie) ‘judicially noticed’.

Sec. 114 Evid. Act

Sec. 114 Evid. Act reads as under:

“114. Court may presume existence of certain facts —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations ……”

‘Discovery’ under R. 12 of O. XI is condition precedent for ‘Production’ under R. 14

Analysis of Rule 12 and 14 impeccably establishes complementarity between these provisions, and unerringly settles that ‘Discovery’ of documents under Rule 12 of Order XI is an inevitable condition precedent for ‘Production’ of documents under Rule 14, as shown under:

Rule 12 (for discovery) expressly allows a party to the suit to apply the Court for an order directing any other party to make ‘discovery on oath’.
The party against whom discovery (on oath) is applied for is required, to file affidavit (under Rule 13). Rule 13 further requires him to place his ‘objections to produce’.
Rule 12 directs that the documents sought for must relate to matters in question; that on the hearing of such application the Court may either refuse or adjourn the same; and that if the court is satisfied that such discovery is not necessary, make such order, as the court thinks fit.
- Though ‘production’ under Rule 14 is the serious matter when compared to ‘discovery’ under Rule 12, there is no provision in Rule 14 (as in Rule 12) for –
  - (i) applying for production;
  - (ii) placing objections or filing affidavit;
  - (iii) directing hearing by court, and passing an order as the court thinks fit.
Failure to produce affidavit under Rule 12 invites stringent actions under Rule 21 (suit dismissed, defence struck out, etc.).
- (i) Effect of non-production of documents under Rule 14 is not specified in R. 21;
- (ii) court can, in such an eventuality, take adverse presumption only, (under Sec. 114, Illus.- g of the Evidence Act).

We see significant and severe actions as regards ‘discovery of documents’ under Rule 12 (that is, filing affidavit and objection, hearing, dismissal of suit, striking out defence, etc.). And, no such significant actions are attached to Rule 14. Why?

The only answer is that the legislature took Rule 12 and 14 as concomitant provisions. That is, ‘production’ of a document under Rule 14 comes into consideration only if it is ‘discovered’ under Rule 14.

Legislative Intention – Concordance Between ‘Discovery’ and ‘Production’

The indisputable reciprocity between ‘discovery’ and ‘production’, and the sequence in which the they are arrayed in Rule 12 and 14, ensure that compliance of Rule 12 is a necessary pre-condition for ordering ‘production’ under Rule 14. Therefore, it is definite that discovery under Rule 12 partakes its ‘production’ (as the next step, under Rule 14).

The afore-stated propositions are fortified by the following:

Ordering production, under Rule 14, is purely a discretionary matter with court.
- Rule 14 reads – “It shall be lawful for the Court … to order the production … of such of the documents in his possession or power … ”.
- Import of these words are obvious in itself. That is, wide-open discretion is given to the court for ordering production under rule 14.
It is unquestionable that a party to the suit has no vested right to seek ‘production’ of any document under rule 14-
- even after ‘discovery’ of the same under rule 12.
Similarly, the party to the suit has no vested right to seek production of ‘all documents‘ discovered under Rule 12.

Documents Referred to in “Pleadings or Affidavit”; Can Production be Ordered?

Now, a question may reasonably and logically arise – Assume, certain relevant documents are referred to in “pleadings or affidavit”; can’t the court order production of those documents (directly) under Rule 14, on application of the other party?

Strictly speaking, No – because of the specific provisions of the CPC as to inspection (and to take copies) of documents referred to in pleadings or affidavits in Order XI rule 15.*
- ^*^{Note: The rule is that general provisions should yield to specific provisions (J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P., (1961) 3 SCR 185; U.P. SEB v. Hari Shankar Jain, (1978) 4 SCC 16; Commercial Tax Officer, Rajasthan v. M/S Binani Cement Ltd., (2014) 3 SCR 1).}
It goes without saying that the permission for taking copies is provided for ‘exhibiting’ the same by the party concerned, as part of his evidence.
Rule 15 Order XI CPC reads as under:
- “15. Inspection of Documents Referred to in Pleadings or Affidavits. Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document or who has entered any document in any list annexed to his pleadings or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse with the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs an otherwise as the Court shall think fit.”
See blog: Notice to Produce Documents in Civil Cases
Proof of Documents & Objections To Admissibility – How & When?

Admitted in Pleadings or Evidence that Document is in his Possession; Can Production be Ordered under S. 151?

Yes; it can be under inherent power. But, it must be remembered that because of the specific provisions of the CPC as to inspection (and to take copies) of documents referred to in pleadings or affidavits in Order XI rule 15, it may not be proper for a party to invoke Sec. 151 – though the power is open to the Court.
Note:
- Order XI rule 12 speaks as to discovery of documents – (and not documents in ‘possession of‘ a party).
- Order XI rule 15 speaks as to documents – ‘referred to‘ (and not documents in ‘possession of‘ a party).
The Court can also invoke Sec. 165 of the Evidence Act.

A party in “possession of a document” can be directed to produce the same

A party in “possession of a document” (Distinct from “Documents Referred to in Pleadings or Affidavits” – Order XI rule 15) can be directed to produce the document. The plaintiff could file an application calling for the said document from the defendant.

In Anil Rishi vs Gurbaksh Singh, (S.B. Sinha, P.K. Balasubramanyan) it is held as under:

“A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the learned Trial Judge to produce the same.”

Burden on plaintiff to Prove Title; Weakness of defence would not enable a decree

In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, it is observed –

In a recovery on title suit, the burden is on the plaintiff to establish title.
Court is also entitled to consider the rival title set up by the defendants.
Weakness of defence to establish title, would not enable plaintiff to a decree.

The Apex Court held:

“The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
“14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”

Beneficial Provision – View That Favours the Beneficiary be Preferred

The burden to prove that the accidental case falls within the exception of 124 A of the Railways Act rest on the shoulder of railways. When two views are possible, on the application of a beneficial provision of an Act, the principle to be followed is that the view which favours the beneficiary should be adopted. See:

State of West Bengal v. Kesoram Industries Ltd., 2004 (10) SCC 201;
Mathuram Agarwal v. State of M.P., AIR 2000 SC 109;
Mysore Minerals Limited v. CIT Karnataka, 1999 (7) SCC 106.

Plea of Private Defence

When an accused raise the benefit of exceptions, under Sec. 105 Evid. Act, burden lies on him to prove exceptions. It applies to the Plea of self-defence. the accused can establish his case of private defence by showing probability (Samuthram alias Samudra Rajan v. State of Tamil Nadu, 1997-2 Crimes 185 (Mad). The burden would stand discharged if preponderance of probabilities is in favour of that plea on the basis of materials on record (Rizan v. State of Chhattisgarh, AIR 2003 SC 976).

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End Notes

Relevant provisions of the Evidence Act:

S. 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.

S. 103. Burden of proof as to particular fact

S.104. The burden of proving the 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 fact is on the person who wishes to give such evidence.

S.105. The burden of proving that the case of accused comes within exceptions

S.106. The burden of proving fact specially within knowledge.

When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.

S.107. The burden of proving the death of person known to have been alive within thirty years.

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.

S.108. The burden of proving that person is alive who has not been heard of for seven years.

S.109. The burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent

S.110. The burden of proof as to ownership

S.111. Proof of good faith in transactions where one party is in the relation of active confidence.

S. 114. Court may presume existence of certain facts.

Illustrations

The Court may presume —

(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence;
(e) that judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particular cases;
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
(i) that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it: —

as to illustration (a) — a shop-keeper has in his bill a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;
as to illustration (b) — A, a person of the highest character is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;
as to illustration (b) — a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;
as to illustration (c) — A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person, completely under As influence;
as to illustration (d) — it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;
as to illustration (e) — a judicial act, the regularity of which is in question, was performed under exceptional circumstances;
as to illustration (f) — the question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
as to illustration (g) — a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;
as to illustration (h) — a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
as to illustration (i) — a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.

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