Section 105 BSA: On Whom Burden of Proof Lies

Section 105 of the Bharatiya Sakshya Adhiniyam, 2023 determines which party must prove a case if neither side produces evidence.

Introduction

The burden of proof under Section 105 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is determined by asking which party would fail if no evidence were presented by either side. The provision helps courts identify the party responsible for establishing the facts necessary to obtain a favourable judgment.

Section 105 is particularly important in civil disputes involving property, recovery of money, contractual obligations and other legal claims. It complements Section 104 BSA, which establishes the general rule that a person seeking a judgment based on asserted facts must prove those facts.

Section 105 BSA corresponds to Section 102 of the Indian Evidence Act, 1872. The provision retains the same fundamental principle under India’s current law of evidence.

Section 105 of the Bharatiya Sakshya Adhiniyam, 2023: Bare Act

105. On whom burden of proof lies.— The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Illustrations.

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.

(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B.

Meaning of Section 105 BSA

Section 105 provides a practical test for determining the burden of proof: which party would lose if neither party produced any evidence?

The answer ordinarily identifies the party on whom the burden of proof rests. The court considers the nature of the claim, the facts admitted or disputed, the existing legal position and the relief sought.

For example, if A files a suit claiming ownership of land currently possessed by B, A must establish the legal basis for claiming the land. If neither party produces evidence and B is legally entitled to retain possession in the absence of proof of A’s claim, the burden rests on A.

However, if a defendant admits the plaintiff’s underlying claim but raises a separate allegation that would defeat that claim, the defendant may bear the burden of proving that allegation. This is illustrated by Section 105(b), where the execution of a bond is admitted but the defendant alleges fraud.

The provision therefore does not simply place the burden on the plaintiff or the defendant in every case. It requires the court to examine who would fail in the absence of evidence, taking the applicable legal rules into account.

Essential Elements of Section 105 BSA

The principal elements of Section 105 are:

Element	Explanation
Suit or proceeding	The rule applies to the determination of the burden of proof in a legal proceeding.
Absence of evidence	The court considers the hypothetical situation in which neither party produces evidence.
Likely failure	The court identifies the party who would fail under that situation.
Allocation of burden	The burden of proof rests on that party, subject to applicable statutory rules and presumptions.

This test helps determine which party must establish the relevant facts. It does not mean that the court must actually decide the case without evidence; the absence of evidence is the legal test used to identify the burden.

Illustrations of Section 105 BSA

1. Dispute over ownership of land

A claims that a plot of land in B’s possession was left to A under the will of C, who was B’s father.

A files a suit seeking possession of the property. If neither party produces evidence, B would ordinarily be entitled to retain possession because A has not established the asserted entitlement.

Therefore, the burden of proof rests on A.

Also Read: Section 104 BSA: Burden of Proof

This illustration demonstrates that a person seeking to disturb an existing position through a legal claim must establish the facts necessary to justify the requested relief.

2. Recovery of money under a bond

A sues B to recover money due under a bond. B admits that the bond was executed but alleges that A obtained it through fraud.

If neither party produces evidence, the admitted bond remains undisputed, while the allegation of fraud remains unproved. On the facts of the statutory illustration, A would succeed and B would fail on the allegation of fraud.

Therefore, the burden of proving fraud rests on B.

This example demonstrates that the party raising an affirmative allegation that would defeat an otherwise established claim may bear the burden of proving that allegation.

3. Claim for repayment of a loan

A files a suit against B for repayment of a loan. B admits receiving the loan but claims that the amount has already been repaid.

The court must consider the applicable rules and the precise issues in dispute. Where repayment is asserted as a fact that would discharge an admitted obligation, B will ordinarily need to establish that repayment occurred.

The example illustrates how the burden may rest on the party relying on a subsequent event or fact to defeat an otherwise established claim.

4. Dispute concerning a contractual obligation

A sues B for payment under a contract. B admits the relevant contract but alleges that the obligation was discharged through an agreed settlement.

The burden of proof depends on the issues framed and the applicable law. If B relies on the settlement as the fact that discharged an admitted obligation, B will ordinarily need to prove the settlement and its legal effect.

The court must assess the evidence and any applicable statutory rules rather than automatically placing the entire burden on one party merely because that party is the plaintiff or defendant.

Difference Between Section 104 and Section 105 BSA

Sections 104 and 105 are closely related, but they address different aspects of the burden of proof.

Basis	Section 104 BSA	Section 105 BSA
Title	Burden of proof	On whom burden of proof lies
Core principle	A person asserting facts necessary for a legal right or liability must prove them	The burden rests on the person who would fail if neither side produced evidence
Main question	Who must prove the asserted facts?	Who would fail if no evidence were presented by either side?
Function	Establishes the general rule	Helps determine the allocation of the burden in a suit or proceeding
Corresponding provision under the Indian Evidence Act, 1872	Section 101	Section 102

In simple terms, Section 104 explains the general obligation to prove asserted facts, while Section 105 supplies a test for identifying the party who bears the burden in a particular proceeding.

Difference Between Burden of Proof and Onus of Proof

The concepts of burden of proof and onus of proof are related but distinguishable.

The burden of proof generally refers to the legal responsibility to establish a proposition necessary for a claim or defence. The onus of proof refers to the evidential responsibility to establish a fact at a particular stage of the proceedings. The onus may shift as evidence is presented.

For example, a plaintiff may initially bear the burden of proving a claim. If the plaintiff produces sufficient evidence to establish a prima facie case, the evidential onus may shift to the defendant to respond. The court must still determine whether the applicable legal burden has been discharged.

The distinction is important because the burden does not automatically transfer merely because one party has produced some evidence. The effect of the evidence depends on the applicable law and the facts of the case.

Important Case Law on Section 105 BSA

The following Supreme Court judgment interprets Section 102 of the Indian Evidence Act, 1872, the predecessor of Section 105 BSA. It remains relevant to understanding the principle, although it is not a judgment specifically interpreting Section 105 BSA.

Also Read: Section 54 BSA: Proof of Facts by Oral Evidence

Anil Rishi v. Gurbaksh Singh (2006)

Citation: (2006) 5 SCC 558

In Anil Rishi v. Gurbaksh Singh, the Supreme Court examined the burden of proof in a civil dispute involving allegations of fraud and a claimed fiduciary relationship.

The Court explained that the burden ordinarily rests on the party asserting the affirmative of an issue. It also considered Section 102 of the former Indian Evidence Act, which places the burden on the person who would fail if no evidence were produced by either side.

The Court emphasised that pleadings are not evidence and that the existence of a fiduciary relationship or a position of active confidence must first be established before the relevant legal consequences can follow. The burden may be allocated differently where a specific legal rule applies.

The judgment also distinguished the burden of proof from the onus of proof. While the underlying legal burden generally remains with the party on whom the law places it, the evidential onus may shift during the proceedings.

Relevance to Section 105 BSA: The decision explains how courts determine which party must establish a disputed fact and why the burden cannot be shifted merely because proving a negative allegation may be difficult.

Relationship Between Section 105 and Other BSA Provisions

Section 105 should be read alongside the other provisions governing the burden of proof in Chapter VII of the BSA.

• Section 104: Establishes the general rule that a person seeking a judgment based on asserted facts must prove those facts.
• Section 105: Determines on whom the burden lies by asking who would fail if neither side produced evidence.
• Section 106: Deals with the burden of proof as to a particular fact.
• Section 107: Deals with the burden of proving a fact that must be established to make evidence admissible.
• Section 108: Addresses the burden of proving that the case of an accused person falls within a general exception, subject to the statutory provision and applicable criminal-law principles.
• Section 109: Deals with the burden of proving facts especially within a person’s knowledge.

These provisions address different situations. Section 105 provides the general test for allocating the burden, while the subsequent sections deal with particular factual or legal circumstances.

Practical Importance of Section 105 BSA

Section 105 is important because it helps courts and litigants identify the party responsible for establishing the facts necessary to resolve a dispute.

Its practical importance includes:

1. Identifying the party who must begin: The provision may assist in determining which party should ordinarily lead evidence first, read with the applicable procedural rules.
2. Evaluating affirmative allegations: A party relying on fraud, repayment, settlement or another fact to defeat a claim may have to prove that fact.
3. Clarifying the effect of admissions: Where a material fact is admitted, the burden may focus on the disputed allegation rather than the admitted fact.
4. Avoiding assumptions about the burden: The burden is determined by the issues, the legal consequences claimed and the applicable rules, not merely by whether a person is the plaintiff or defendant.
5. Applying statutory presumptions: A specific statutory presumption or burden-shifting provision may affect the ordinary allocation of the burden.

Key Takeaways for Law Students

• Section 105 of the BSA deals with the question of on whom the burden of proof lies.
• It corresponds to Section 102 of the Indian Evidence Act, 1872.
• The central test is to identify who would fail if neither side produced evidence.
• The burden may rest on a plaintiff claiming relief or on a defendant relying on a fact that would defeat an otherwise established claim.
• The party alleging fraud does not invariably bear the burden in every situation; special rules may apply, including where a fiduciary relationship or active confidence is established.
• The evidential onus may shift during a trial, even where the underlying legal burden remains unchanged.
• Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558, is a useful Supreme Court authority on burden of proof and onus of proof under the predecessor law.

Frequently Asked Questions (FAQs)

1. What is Section 105 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 105 BSA provides that the burden of proof in a suit or proceeding lies on the person who would fail if no evidence were produced by either side.

2. Which section of the Indian Evidence Act corresponds to Section 105 BSA?

Section 105 BSA corresponds to Section 102 of the Indian Evidence Act, 1872.

3. How does a court determine on whom the burden of proof lies?

The court considers who would fail if neither party produced evidence, taking account of the claims, admitted facts, disputed issues and applicable statutory rules.

4. Does the burden of proof always lie on the plaintiff?

No. Although the plaintiff ordinarily bears the initial burden of establishing the claim, a defendant may bear the burden of proving an affirmative allegation or defence. The allocation depends on the issues and applicable law.

5. What is the difference between Sections 104 and 105 BSA?

Section 104 states the general rule that a person asserting facts necessary for a legal right or liability must prove them. Section 105 identifies the party who bears the burden by considering who would fail if neither side produced evidence.

6. Which case law is important for Section 105 BSA?

Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558, is an important Supreme Court decision interpreting Section 102 of the former Indian Evidence Act, the predecessor of Section 105 BSA.

Conclusion

Section 105 of the Bharatiya Sakshya Adhiniyam, 2023 provides a practical rule for allocating the burden of proof in legal proceedings. By asking which party would fail if neither side produced evidence, courts can identify who must establish the facts necessary to support a claim or defence.

The provision is particularly significant in property disputes, recovery suits and cases involving affirmative allegations such as fraud or repayment. Read with Section 104 BSA and the related provisions on particular facts, admissibility and statutory exceptions, Section 105 helps maintain a structured and fair approach to evaluating evidence.

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