Section 105 BSA 2023 - On Whom Burden of Proof Lies
Section 105 of the Bharatiya Sakshya Adhiniyam, 2023 lays down a practical rule for deciding which party carries the burden of proof in a suit or proceeding. The question is: who would lose if neither side produced any evidence?
Text of Section 105 - On Whom Burden of Proof Lies
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 to Section 105
Illustration (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.
Illustration (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 identifies the party who bears the legal burden by applying a "no evidence" test. The Court asks what the result would be if both sides produced no evidence at all. The party who would fail in that situation bears the burden of proving the necessary facts.
The section is closely connected with Section 104 BSA, which states the general principle that a person who asks the Court to give a judgment based on facts asserted by that person must prove those facts.
How the Rule Works in Practice
In a civil claim, a claimant who asserts a right ordinarily has to establish the facts on which that right depends. If the defendant admits the basic claim but raises a separate defence such as fraud, payment, discharge or another affirmative fact, the burden of proving that defence may fall on the defendant.
Section 105 therefore does not merely ask who filed the case. It asks which party would lose on the particular issue if no supporting evidence were produced.
Difference Between Sections 104 and 105 BSA
Section 104 states the general rule that a person asserting facts on which a legal right or liability depends must prove those facts. Section 105 provides a practical method for identifying the party carrying that burden: consider who would fail if neither side gave evidence.
Corresponding Provision Under the Indian Evidence Act, 1872
Section 105 of the Bharatiya Sakshya Adhiniyam, 2023 corresponds in substance to Section 102 of the Indian Evidence Act, 1872, which also dealt with the question of on whom the burden of proof lies.