In the case reported in I. L. R. 1 Cal. 378, their Lordships dissented from the following cases: (1) Forbes v. Sheikh Mean Jan, 3 W. R. 69; (2) Shamlol Ghose v. Sekunder Khan, 3 W. R. 182; (3) Nobolol Khan v. Adhardni Narain Koonwari, 5 W. R. 191. (b). Where it is admitted that the defendants hold certain lands within the plaintiff's zamindari, some at least of which are rentpaying, the defendants, if desirous of proving that any of these lands are rent-free, are bound to give some primâ facie evidence of the fact before they can call upon the plaintiff, the zamindar to prove that the whole or any part of the lands are mal-Akbur Ali v. Bhyea Lal Jha, I. L. R. 6 Cal. 666. (c). In a suit to assess land which defendant proves that he purchased as lakhiraj, and of which he is in possession, the onus of proving that it is rent-paying lies on the plaintiff-Rajkisore Mookerji v. Hurihur Mookerji, 10 W. R. 117. Rent Law. Transferability of Tenures.-(a). In a suit brought to recover possession of certain lands forming part of the putni estate of the plaintiffs and constituting the ryoti holding of one M., which lands were sold in execution of a money-decree against M. and purchased by the defendant, the defendant set up that the tenure held by M. was of a permanent and transferable nature. Held, that the onus of proving the transferability of this tenure was upon the defendant— Kripamoyi Dabia v. Durga Govind Sirkar, I. L. R. 15 Cal. 89. The following cases were referred to with approval: (1) Perhlad Sen v. Doorga Persaud Tewari, 12 Moo. I. A. 322; (2) Suhodwa v. Smith, 20 W. R. 138; (3) Ram Moni Mohurir v. Aleemoddeen, 20 W. R. 374 ; (4) Behari Sahoo v. Puryag Mahtoon, 23 W. R. 291; (5) Rajkishen Mookerji v. Peary Mohan Mookerji, 20 W. R. 421; (6) Hyes v. Moneerooddeen Ahung, 24 W. R. 6; (7) Betai Ahir v. Bhuggobutty Koer, 11 C. L. R. 876. The case of Doya Chand Shaha v. Anund Chunder Sen, I. L. R. 14 Cal. 382, was dissented from. (b). Vide Thiagaraja v. Giyana S. P. Sannadhi, I. L. R. 11 Mad. 77. Rent Law.-Yearly Tenant.-Vide (1) Endar Lala v. Lallu Huri, 7 Bom. A. C. 111; (2) Vasudeba Patruda v. Sanyasiraz P. Simhulu, 1. L. R. 3 Mad. 1. Revenue Sale Law.-The onus of proving that under-tenures in a taluk sold at a revenue sale under Act XI of 1859 fall under any of the exceptions to sec. 37 of that Act is on the person alleging the under-tenures to be within such exceptions-Rash Behari Bosu v. Hara Moni Debia, I. L. R. 15 Cal. 555. Sir-land. Where a person, whose proprietary rights in a mehal have been sold in execution of a decree, alleges that land held by him at the time of such sale was held as sir, the burden of proof lies on him-Haridas v. Ghansham Narain, I. L. R. 6 All. 286. Shikmee Taluq.-Lands situate within a zamindari must primâ facie be considered as part of the zamindari; and it is for those who insist on the separation of lands from the general lands of the zamindari, and on their settlement as a shikmee taluq, to establish their title- Wise v. Bhoobun Moyee Debia, 3 W. R. (P. C.) 5. Vide also Nistarini v. Kali Persaud Das Chowdhari, 23 W. R. 431. Threats.-Undue Influence.—In the case of The Zamindar of Ramnad v. The Zamindar of Yettiapooram, 7 Moo. I. A. 441, their Lordships of the Privy Council remarked: "It has been said that if the zamindar did give his consent to the arbitration, it was not a willing consent, but was obtained by threats and through undue influence exerted by persons in authority. Now the onus probandi of an averment of this description must necessarily fall on those who make it." Vatandar Joshi.-The burden of proving that the Vatandar Joshi of village is not entitled to officiate and take fees in the family of any particular caste lies upon the person or persons asserting exemption-Raja Valad Shivapa v. Krishnabhat, I. L. R. 3 Bom. 232. Will.-Insanity.-When a will duly signed and attested is impugned in the Court of Probate, on the ground of the testator's insanity, the burden of proof lies on the impugner; when, however, it is shown that the testator was insane or subject to delusions at any time prior to the date of the will, or within a few years after that date, the burden of establishing his capacity to have made the will in question is shifted on to the propounding party-Smee v. Smee, L. R. 5 P. D. 84; Prinsep v. Dyee Sombre, 10 M. P. C. 232. The onus of proving insanity is placed on the impugner, because every man may reasonably be presumed to be sane till the contrary is shown. Will.-Revocation of.-(a). A will duly executed is not to be treated as revoked, either wholly or partially, by a will which is not forthcoming, unless it is proved by clear and satisfactory evidence that the later will contained either words of revocation or dispositions so inconsistent with the dispositions of the earlier will that the two cannot stand together. It is settled that the burden of proof lies upon the person who challenges the will that is in existence-Shahib Mirza v. Umda Khanam, I. L. R. 19 Cal. 444. (b). Where revocation of probate is prayed for under sec. 234 of the Succession Act, on the ground that citation was not duly published, and that petitioner being a minor under the care of the person who obtained probate, did not understand his fraud, it was held that the petitioner should be allowed an opportunity of proving these allegations; and if she succeeded, there should be a new trial as to the factum of the will, which the person propounding would have to prove in the ordinary way-Dintarini Debi v. Daibo Chunder Rai, I. L. R. 8 Cal. 880. 104. 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. Burden of proving fact to be proved to make evidence admissible. Illustrations. (a). A wishes to prove a dying declaration by B. A must prove B's death. (b). A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost. Vide sec. 136 post. Burden of prov ing that case of excep 105. 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, 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. Illustrations. (a). A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. (b). A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A. (c). Section three hundred and twenty-five of the Indian Penal Code provides that whoever, except in the case provided for by section three hundred and thirty-five, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section three hundred and twenty-five. The burden of proving the circumstances bringing the case under section three hundred and thirty-five lies on A. Purport of the Section.-(a). It is a settled rule in criminal cases that the accused must be presumed to be innocent until proved to be guilty; and consequently the onus of proving everything essential to the establishment of the charge against him lies on the prosecutor. But the onus may be shifted by legislative interference or by the admission of the accused. This section relieves the prosecution from the necessity of averring or proving the absence of circumstances which might constitute a general or special exception under the Indian Penal Code or any other law defining an offence. Now it is incumbent on the accused to prove the existence of circumstances which would show that the exceptive clause takes his case out of the danger of the law. (b). Since the passing of the Evidence Act, it is incumbent on the accused, in all criminal cases tried in the muffasil, to prove the existence (if any) of circumstances which bring the offence charged within the general or special provisions contained in any part of the Penal Code or in any law defining such offence.—In the matter of the Petition of Shiboo Prosaud Pandah, I. L. R. 4 Cal. 124. Private Defence. In the case of Jamsheer Sardar, 1 C. L. R. 62, their Lordships remarked: "It is obvious that, under the provisions of the Evidence Act, sec. 105, an answer, setting up the right of private defence, must be supported by evidence, giving a full and true account of the transaction from which the charge against an accused person arises. No accused person can at the same time deny committing an act and justify it. The law does not admit of justification by putting forward hypothetical cases; it must be by proof of the actual facts." But it seems to us that their Lordships, who decided the case of Kalichurn Mookerji, 11 C. L. R. 232, took a more rational view of the law. The accused in this case did not raise before the Magistrate the plea that he was acting merely in the exercise of the right of private defence. The Judge on appeal held that the complainants had themselves been the aggressors, and that the accused had merely exercised the right of private defence; but inasmuch as the accused had not set up the plea of private defence before the Magistrate, the conviction could not be set aside. The High Court held that such an argument was clearly untenable. Their Lordships remarked : "It is true that sec. 105 of the Evidence Act placed on the accused the burden of proving that in any criminal trial, they acted within their legal rights in the exercise of the right of private defence of property, still this burden can be discharged by the evidence of witnesses for the prosecution, as well as by evidence for the defence on such a plea being set up; and the accused are clearly entitled to claim an acquittal if, on the evidence for the prosecution, it is shown that they have committed no offence." 106. When any fact is especially within the Burden of prov. knowledge of any person, the burden of proving that fact is upon ing fact especially within ledge. know him. Illustrations. (a). When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b). A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. Reason of the Rule.—" The law, says one of our old books, will not force a man to show a thing which, by intendment of law, lies not within his knowledge. From the very nature of the question in dispute, all or nearly all the evidence that could be adduced respecting it must be in the possession of, or be easily attainable by, one of the contending parties, who, accordingly, could at once put an end to litigation by producing that evidence, while the requiring his adversary to establish his case, because the affirmative lay on him, or because there was a presumption of law against him, would, if not amounting to injustice, at least be productive of expense and delay. In order to prevent this, it has been established, as a general rule of evidence, that the burden of proof lies on the person who wishes to support his case by a particular fact which lies more peculiarly within his own knowledge, or of which he is supposed to be cognizant.-Best on Evi. (8th Ed.) 265. |