​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption Regarding the Authenticity of Documents Thirty Years Old [Section 92]
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Section 92 of the Bharatiya Sakshya Adhiniyam, 2023 embodies an important evidentiary principle relating to ancient documents, that is, documents which are thirty years old or more. This provision enables courts to presume the genuineness of such documents, thereby relieving parties of the often-impracticable burden of proving their execution after a long lapse of time.

Statutory Rule
According to Section 92, where any document purporting or proved to be thirty years old is produced from a custody which the Court, in the given circumstances, considers to be proper, the Court may presume:

• that the signature and every other part of the document which appears to be in the handwriting of a particular person is indeed in that person’s handwriting; and
• that the document, if it purports to have been executed or attested, was duly executed and attested by the persons by whom it claims to have been so executed or attested.

The provision thus allows the Court to presume not only the handwriting and signature but also the due execution and attestation of such documents.

Meaning of Proper Custody
The Explanation to Section 92 clarifies the concept of proper custody. A document is said to be in proper custody if it is found in the place where it would naturally be kept and under the care of the person with whom it would ordinarily remain. However, custody is not considered improper merely because the document is produced from a different source, provided it is shown to have a legitimate origin or the circumstances reasonably explain how it came into such custody.
Illustrations of proper custody include:

• Title deeds produced by a person who has long been in possession of the land;
• Deeds produced by a mortgagee relating to mortgaged property;
• Documents deposited with a relative or acquaintance for safe custody.

In all such cases, the custody would be regarded as proper.
Scope and Rationale of the Section
The primary objective of Section 92 is to address the practical difficulty of proving documents executed decades earlier. With the passage of time, witnesses may die, handwriting experts may not be available, and direct evidence of execution may no longer exist. To avoid injustice and unnecessary hardship, the law permits a presumption of genuineness for documents that have survived for thirty years.
The provision is founded on necessity, convenience, and probability, as it is reasonable to assume that documents preserved for such a long period without dispute are likely to be genuine.

Nature of the Presumption
The presumption under Section 92 is discretionary, as indicated by the words “may presume”. The Court is not bound to draw the presumption in every case and must exercise its discretion judiciously. The presumption is confined strictly to:

• handwriting,
• signature,
• execution, and
• attestation.

It does not extend to the truth of the contents of the document or to collateral facts, which must still be proved independently.
Moreover, if a party has already attempted to prove the document by direct evidence and failed, it cannot later fall back upon this statutory presumption.

Essential Conditions for Raising the Presumption
For the presumption under Section 92 to operate, the following conditions must be satisfied:

1. The document must be at least thirty years old.
2. The thirty-year period is generally calculated from the date borne on the document, though extrinsic evidence may be used if no date is mentioned.
3. The document must be produced from proper custody, which is a question of fact in each case.
4. The presumption applies primarily to the original document, not to copies.
5. The document must have completed thirty years at the time it is tendered in evidence, not merely when it is filed in court.
6. The document must appear to be free from suspicion on its face.

Courts are cautioned to carefully examine the apparent age of documents, as a recently created document may falsely bear an old date.

Judicial InterpretationIn Om Prakash (Dead) through LRs v. Shanti Devi, the Supreme Court reaffirmed that the thirty-year period is to be reckoned from the date when the document is tendered in evidence and its genuineness becomes a matter of proof, not from the date of its mere filing. This principle traces its origin to the Privy Council decision in Surendra Krishna Roy v. Mirza Mahammad Syed Ali Mutawali.

Similarly, in Tushar Arun Gandhi v. State of Orissa, entries relating to the deposit of Mahatma Gandhi’s ashes, being over thirty years old, were presumed to be genuine under this provision.
Exception: No Presumption for WillsA significant limitation of Section 92 is that it does not apply to wills. Even if a will is thirty years old, its execution and attestation must be strictly proved in accordance with the requirements of the Indian Succession Act and the relevant provisions of the Bharatiya Sakshya Adhiniyam. This position was firmly established by the Supreme Court in Bharpur Singh v. Shamsher Singh, where it was held that no presumption of genuineness arises in favour of ancient wills.

Conclusion
Section 92 of the Bharatiya Sakshya Adhiniyam, 2023 provides a pragmatic mechanism for dealing with ancient documents by permitting courts to presume their authenticity under specified conditions. While the provision significantly eases the evidentiary burden, it simultaneously safeguards against misuse by making the presumption discretionary, limited in scope, and subject to careful judicial scrutiny.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Due Execution, Attestation and Stamping of Documents Not Produced [Section 91]

Section 91 of the Bharatiya Sakshya Adhiniyam, 2023 lays down an important rule of presumption against a party who withholds documentary evidence. It empowers the Court to draw an adverse presumption regarding the formal validity of a document when a party, despite due notice, fails to produce it.

Statutory Provision
Section 91 provides that:
When a document is called for by the Court and is not produced after due notice to produce, the Court shall presume that the document was duly executed, properly stamped, and validly attested in the manner required by law.
Thus, the law presumes compliance with legal formalities relating to execution, attestation, and stamping of the document that has been withheld.

Scope and Nature of the Presumption

• The presumption under Section 91 is mandatory in nature, as indicated by the expression “shall presume”.
• However, the scope of this presumption is limited. It extends only to:
  • due execution,
  • proper stamping, and
  • lawful attestation of the document.

Importantly, this presumption does not extend to the truth or correctness of the contents of the document. The contents still require proof, ordinarily through secondary evidence, in accordance with Section 60 of the Act.

Underlying Principle
The provision is based on the well-established legal maxim:
Nemo ex suo delicto meliorem suam conditionem facere potest
(No one can be allowed to take advantage of his own wrong).
If a party deliberately withholds a document that is in his possession after being lawfully called upon to produce it, the law presumes that the document would have gone against his interest.
This principle is also reflected in the general presumption under Section 119(g), which allows the Court to presume that evidence which could be produced and is not produced would, if produced, be unfavourable to the person withholding it.

Opportunity to Rebut the Presumption
Although the presumption under Section 91 is mandatory, it is rebuttable. The party against whom the presumption is raised may lead evidence to show that:

• the document was not duly executed, or
• it was not properly stamped, or
• it was not validly attested.

However, this right to rebut is subject to an important limitation.

Effect of Section 167
Section 167 of the Bharatiya Sakshya Adhiniyam places a restriction on a party who refuses to produce a document when called upon to do so. It provides that:

• A party who has a document in his possession and refuses to produce it at the hearing cannot later rely on that document as evidence, unless:
  • the opposing party consents, or
  • the Court permits its production.

Thus, while a party may attempt to rebut the presumption by other evidence, he cannot freely rely on the very document he wrongfully withheld, without satisfying the requirements of Section 167.

Condition for Raising the Presumption
For the presumption under Section 91 to arise, the following condition must be fulfilled:

• There must be evidence that the document was in the possession or power of the party against whom the presumption is sought to be raised.

If possession or control of the document is not established, the presumption cannot be invoked.

Conclusion
Section 91 of the Bharatiya Sakshya Adhiniyam, 2023 serves as a deterrent against the suppression of documentary evidence. By compelling the Court to presume due execution, attestation, and stamping of a document that is deliberately withheld, the provision ensures fairness in judicial proceedings and prevents parties from benefiting from their own misconduct. At the same time, it carefully limits the presumption to formal validity, leaving the truth of the contents to be proved in accordance with established rules of evidence.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Exclusion of Evidence to Explain or Amend an Ambiguous Document [Section 96]

​Meaning and Object
Section 96 deals with cases where a document is ambiguous or defective on the face of it. Such ambiguity is known as patent ambiguity, i.e., an uncertainty that is apparent from the document itself without reference to external facts.
The object of this provision is to maintain the certainty and sanctity of written documents by preventing parties from using oral or extrinsic evidence to correct obvious defects or ambiguities.

Statutory Rule
When the language used in a document is ambiguous or defective on its face,
no evidence may be given of facts which would:

• Explain its meaning, or
• Supply or remove its defects.

Nature of Ambiguity

• The ambiguity must be visible from the document itself.
• It must not require external facts to discover the defect.
• Such ambiguity cannot be cured by oral or extrinsic evidence.

Illustrations

1. Uncertain Price
   • A agrees in writing to sell his cow to B for Rs. 1500 or Rs. 2000.
   • Evidence cannot be given to prove which price was intended.
2. Alternative Consideration
   • A agrees in writing to sell a horse to B for “one lakh rupees or one lakh fifty thousand rupees.”
   • Oral evidence is inadmissible to clarify the price.
3. Blanks in a Document
   • A deed contains blanks.
   • Evidence cannot be given to show how the blanks were intended to be filled.

Underlying Principle

• A document must speak for itself.
• Where the defect or ambiguity is apparent, the court cannot rely on external evidence to interpret or amend it.
• Allowing such evidence would amount to rewriting the contract, which is not permitted.

Use of Internal Evidence

• Although extrinsic evidence is barred,
• The court may interpret the document by:
  • Reading it as a whole, and
  • Using statements contained in one part of the document to clarify another part.
• This is permissible only when the clarification arises from the document itself.

Judicial Interpretation
In Pardeep Kumar v. Mahaveer Pershad, a lease deed contained blanks regarding the date of commencement. However, another clause stated that the first installment of rent was payable on a particular date. The High Court held that:

• The date of payment of the first installment could reasonably be treated as the date of commencement.
• This was allowed because the clarification was derived from the internal contents of the document, not from oral evidence.

Key Points

• Section 96 applies only to patent ambiguity.
• Oral or extrinsic evidence is not admissible.
• Essential defects cannot be cured from outside the document.
• Internal consistency of the document may be used for interpretation.

Conclusion
Section 96 of the Bharatiya Sakshya Adhiniyam, 2023 excludes evidence to explain or amend documents that are ambiguous or defective on their face. The provision reinforces the principle that written instruments must be clear and complete, and courts cannot rely on external evidence to cure patent defects.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-On Whom the Burden of Proof Lies (Section 105) and Burden of Proof & Onus of Proof 

​1. IntroductionA basic question in evidence law is: who must prove what?
The general rule is: “he who asserts must prove.” If a person claims a right or asserts a fact and fails to prove it, he will fail in the suit/proceeding.

2. Statutory Rule: Section 105 (Test for deciding who carries the burden)Section 105 lays down a practical test:

• The burden of proof lies on that person who would fail if no evidence at all were given on either side.

This means the court imagines a situation where both sides produce zero evidence—then asks: who would lose? That person carries the burden.

3. Illustrations (Simple understanding)(a) Land + Possession case

• A sues B for land; B is already in possession.
• If no evidence is produced, B keeps possession.
  ✅ So A has the burden.

(b) Bond + Fraud defence

• A sues B on a bond; execution admitted, but B alleges fraud.
• If no evidence is produced, bond stands and A wins.
  ✅ So B has the burden to prove fraud.

4. Scope and Principle (How Section 105 works with the general rule)

• Section 104 explains the general rule about burden (who must prove facts to get relief).
• Section 105 states the same idea in a negative/hypothetical form (who would fail without evidence).

Key points:

• Burden lies on the party substantially asserting the affirmative of the issue.
• The party with the burden must:
  • establish a prima facie case,
  • succeed on the strength of their own evidence,
  • and cannot win merely because the opponent’s case is weak.

5. Burden of Proof vs Onus of Proof (Rewritten in Note Form)(A) Burden of Proof

• Meaning: The legal responsibility to prove the facts necessary to succeed in the case.
• Nature: Fixed/constant throughout the trial (generally does not shift).
• Scope: Relates to the entire case (whole claim or defence that must be proved).
• Effect: If the party who bears it fails to prove, they lose.

(B) Onus of Proof

• Meaning: The duty to produce evidence on a particular point at a particular stage of the case.
• Nature: Shifting/variable—moves from one side to the other depending on evidence, presumptions, and admissions.
• Scope: Relates to specific issues/facts during trial.
• Effect: Once one party produces sufficient evidence on a point, the onus shifts to the other party to rebut it.

(C) Core Distinction (In one line)

• Burden of proof = fixed duty to ultimately prove the case.
• Onus of proof = shifting duty to lead evidence at different stages.

6. Judicial Understanding (Short note)

• Courts have repeatedly clarified that:
  • burden generally remains constant,
  • while onus may shift according to how evidence unfolds and which presumptions apply.
• In title/possession disputes, courts emphasize:
  • the plaintiff must prove a better title,
  • and cannot succeed merely by pointing out weakness in the defendant’s case.

7. Burden of Proof and Presumptions (Connection)Burden is often lightened or affected by:

• Presumptions (fact or law),
• Admissions,
• Estoppel.

General idea:

• If a presumption operates in favour of one party, the other party must rebut it.
• So presumptions often cause a shift in onus, even if the main burden remains where law places it.

8. Exceptions to the General Rule (Quick notes)Even though usually the one who asserts must prove, burden/onus may shift in two important situations:

1. Rebuttable presumptions / prima facie case
   • Once a presumption arises or a prima facie case is shown, the opponent must rebut.
2. Facts especially within knowledge (Section 109)
   • If a fact is exceptionally within one party’s knowledge, that party may have to prove it.

9. Conclusion

• Section 105 provides the clearest test: who would fail if no evidence is given?
• Burden of proof decides who must ultimately prove the case (generally constant).
• Onus of proof is the shifting duty to produce evidence as the trial progresses.

​Indian Evidence Law - Bharatiya Sakshya Adhiniyam 2023- Evidence of Terms of Contracts Reduced to Writing (Section 94)
1. Core Idea (Best Evidence Rule)

• When the terms of a contract/grant/disposition of property are reduced into writing, the law requires the writing itself to be produced in court.
• Oral evidence cannot be used to prove those terms.
• If the original document cannot be produced for valid reasons, secondary evidence may be given only where permitted under the Act.

2. Statutory Rule (Section 94)Section 94 applies when:

1. Terms of a contract / grant / other disposition of property are written in a document; or
2. Any matter is required by law to be reduced to writing.

✅ In such situations:

• No evidence shall be given to prove the terms, except:
  • the document itself (primary evidence), or
  • secondary evidence, where admissible.

3. What Section 94 Covers (Two Categories)(A) Writing Voluntarily (Part 1)

• Parties choose to put terms into writing.
• Once reduced into writing, oral evidence of terms is barred.
• Proof must be by document / secondary evidence only.

Example idea: If writing is optional and parties still choose to write, they must prove terms through the document.
(B) Writing Mandatory by Law (Part 2)

• Law requires the matter to be in writing (e.g., certain property transfers).
• Even if the document is not registered (when registration is mandatory), oral evidence cannot replace it to prove the terms.
• An unregistered document that is compulsorily registrable is generally inadmissible to prove the transaction’s terms.

4. Illustrations (Meaning in simple words)

• (a) If contract is in several letters → all relevant letters must be proved.
• (b) If contract is in a bill of exchange → bill must be proved.
• (c) If bill of exchange is in three originals → proving one original is enough.
• (d) If document mentions another payment made orally earlier → oral evidence may be given to show that earlier payment was not made (because it is not the “term” being proved under Section 94).
• (e) A receipt is not a “contract term” document in the strict sense → oral evidence of payment can still be admissible.

5. Essential Ingredients of Section 94To apply Section 94:

1. There must be “terms” (conditions/clauses of the transaction).
2. Those terms must relate to:
   • a contract, or
   • a grant, or
   • an other disposition of property, or
   • a matter required by law to be written.
3. The transaction must be:
   • in writing voluntarily, or
   • required by law to be in writing.

6. Exceptions (When document itself need not be proved)Exception 1: Public officer appointed in writing

• If a public officer must be appointed in writing, but it is shown that a person has acted as that officer, the appointment letter need not be proved.

Exception 2: Will admitted to probate

• If a will is admitted to probate, the probate/certified copy may prove the will—original may not be required.

7. Explanations under Section 94Explanation 1: One document or many

• Whether terms are in one document or multiple documents, the rule applies.
• If in multiple documents → all must be produced to prove terms.

Explanation 2: More than one original

• If there are multiple originals, proving one original is sufficient.

Explanation 3: Facts other than “terms”

• Section 94 bars oral proof only of the terms.
• If the document mentions some other fact (not the “terms”), oral evidence about that fact is not barred.

Examples of “other facts”:

• Receipt acknowledging payment → oral evidence of payment may still be allowed.
• Adoption deed merely records an event; oral evidence of adoption can still be led.

8. Important Clarification: “Terms” vs “Factum”

• Section 94 bars oral evidence to prove terms, not the factum (existence) of transaction, in some situations.
• Example: An unregistered partition deed may not prove the terms/share, but oral evidence may prove that partition occurred (factum).

9. Link with Section 95

• Section 94: how terms must be proved → by document/secondary evidence only.
• Section 95: once terms are proved through the document, parties generally cannot use oral evidence to contradict/ vary / add / subtract from those terms (subject to provisos).

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proof and Onus of Proof 
1. Burden of Proof
The burden of proof refers to the legal responsibility placed upon a party to prove the facts that he asserts in order to obtain a judgment in his favour. It is codified under Section 104 of the Bharatiya Sakshya Adhiniyam, 2023.

The burden of proof relates to the entire case and not merely to individual facts. It lies on the party who would fail if no evidence were produced by either side. Once fixed, the burden of proof remains constant throughout the proceedings and does not shift during the trial.
The party on whom the burden of proof lies must succeed on the strength of his own evidence and cannot take advantage of weaknesses in the opponent’s case. If he fails to discharge this burden, the suit or proceeding must fail.

2. Onus of Proof
​The onus of proof means the obligation to produce evidence in support of a particular fact or issue at a particular stage of the trial. It is codified under Section 105 of the Bharatiya Sakshya Adhiniyam, 2023.

Unlike the burden of proof, the onus of proof is concerned with specific facts or issues rather than the whole case. Initially, the onus lies on the party who would be unsuccessful if no evidence were led. However, the onus of proof is not static; it shifts from one party to another during the course of trial depending upon the evidence adduced, admissions made, or presumptions raised.
Once a party discharges the onus by leading sufficient evidence, the onus shifts to the opposite party to rebut or counter that evidence.

3. Distinction between Burden of Proof and Onus of Proof
The burden of proof and onus of proof are closely related but distinct concepts. The burden of proof refers to the duty to establish the whole case, whereas the onus of proof refers to the duty to lead evidence at a particular stage of the proceedings.
The burden of proof is fixed and constant, while the onus of proof is variable and shifting. The burden of proof is a matter of law, whereas the onus of proof is influenced by the state of evidence at different stages of the trial.

4. Judicial View
In Anil Rishi v. Gurbaksh Singh, the Supreme Court clarified that the burden of proof remains constant throughout the trial, but the onus of proof may shift from time to time depending upon the evidence adduced by the parties.
Similarly, in Debbarma (Dead) through Legal Representatives v. Prabha Ranjan Debbarma, the Supreme Court emphasized that a plaintiff must prove his title by leading positive evidence and cannot rely merely on the failure of the defendant to prove his case. The onus may shift, but the burden of proof remains on the party asserting the claim.

5. Conclusion
In summary, the burden of proof determines who must ultimately prove the case, while the onus of proof governs the responsibility of producing evidence at different stages of the trial. Both concepts work together to ensure a fair and orderly process of adjudication under the Bharatiya Sakshya Adhiniyam, 2023.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023Burden of Proof [Sections 104–114]
1. Meaning of Burden of Proof
The burden of proof refers to the legal obligation placed upon a person to prove the facts which he asserts before a court or authority. Whenever a person seeks a judgment, decree, or order in his favour based on certain facts, it is his duty to establish the truth of those facts by leading evidence.
In simple terms, he who asserts must prove. If the party on whom the burden lies fails to prove the asserted facts, the court cannot grant the relief sought.
Sections 104 to 114 of the Bharatiya Sakshya Adhiniyam, 2023 collectively lay down the general and special rules relating to the burden of proof.

2. Statutory Principle
A person is said to bear the burden of proof when:

• He asserts the existence of certain facts, and
• He seeks a legal consequence (judgment, order, or relief) on the basis of those facts.

The burden lies on that person to establish the existence of such facts to the satisfaction of the court.

3. Illustrations
Illustration (a): Criminal Case
A desires the Court to punish B for a crime which A alleges B has committed.
Here, the burden of proof lies on A, and A must prove beyond reasonable doubt that B committed the crime.
Illustration (b): Civil Case
A desires the Court to declare that he is entitled to certain land in the possession of B, based on facts asserted by A and denied by B.
Here, the burden of proof lies on A, who must prove the existence of those facts on which his claim is based.

4. Scope of Sections 104–114
Sections 104–114 form a complete code on the law relating to burden of proof and include:

• General rules regarding who must prove a fact (Sections 104–106);
• Special rules dealing with admissibility of evidence, exceptions, special knowledge, presumptions, ownership, relationships, and good faith (Sections 107–114);
• Rules that determine how and when the burden may shift due to presumptions or special circumstances.

These provisions apply to both civil and criminal proceedings, subject to the differing standards of proof.

5. Nature of Burden of Proof

• The burden of proof is a rule of law, not discretion.
• It determines which party must ultimately fail if the evidence is evenly balanced or absent.
• The burden remains constant throughout the proceedings, though the onus of producing evidence may shift from one party to another.

6. Object and Rationale
The object of placing the burden of proof on the person asserting a fact is:

• To ensure fairness in adjudication;
• To prevent frivolous or unsupported claims;
• To promote certainty and judicial discipline.

Since courts decide disputes on the basis of evidence, a party who approaches the court must justify his claim by proving the facts on which it is founded.

7. Conclusion
Sections 104–114 of the Bharatiya Sakshya Adhiniyam, 2023 lay down the foundational principles governing the burden of proof. The law mandates that a person who seeks a judgment or legal relief must prove the facts on which his claim rests. Failure to discharge this burden results in failure of the claim, thereby ensuring fairness, accountability, and logical adjudication in the administration of justice.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Introduction: Burden of Proof

​Part IV of the Bharatiya Sakshya Adhiniyam, 2023 (Sections 104 to 170) deals with the production and effect of evidence, that is, the manner in which facts are to be proved before a court of law. This Part lays down the procedural framework governing how evidence is presented, evaluated, and relied upon in judicial proceedings.

Classification under Part IV
The provisions relating to production and effect of evidence are divided into the following categories:

1. Burden of Proof – Sections 104 to 120
2. Estoppel – Sections 121 to 123
3. Witnesses and their Examination – Sections 124 to 168
4. Improper Admission and Rejection of Evidence – Section 169
5. Repeal and Savings – Section 170

Among these, the burden of proof occupies a central position in the law of evidence as it determines who must prove what in a legal proceeding.
Chapter VII of BSA, 2023
Chapter VII (Sections 104 to 123) of the Bharatiya Sakshya Adhiniyam, 2023 deals with two important aspects:

• Burden of Proof – Sections 104 to 114
• Presumptions by the Court – Sections 115 to 123

These provisions together regulate the responsibility of parties to prove facts and the circumstances in which courts may presume certain facts.

Meaning of Burden of Proof
In every legal proceeding, one party asserts the existence of a right or liability and claims that the opposing party is subject to a corresponding duty or obligation. The opposing party may deny the existence of those facts and contest the claimed right or liability.

This gives rise to a fundamental question:
On whom does the burden of proof lie?
The burden of proof means the obligation to prove a fact asserted by a party. The general rule of evidence is:
He who asserts must prove.
Thus, the party who alleges the existence of a fact must adduce evidence to the satisfaction of the court to establish its existence or non-existence, as the case may be.
The expression burden of proof (onus probandi) signifies that if no evidence is produced by the party on whom the burden lies, the issue must be decided against that party.

Judicial Definition
In Sher Singh @ Partapa v. State of Haryana, the Supreme Court referred to the definition of burden of proof as given in The Concise Dictionary of Law (Oxford), which states:
The burden of proof is the duty of a party to litigation to prove a fact or facts in issue. Generally, it lies upon the party who substantially asserts the truth of a particular fact. A distinction is drawn between the legal (persuasive) burden and the evidentiary burden.
This definition highlights two distinct dimensions of the burden of proof.

Two Meanings of Burden of Proof
As applied to judicial proceedings, the term burden of proof has two distinct meanings:

1. Burden of Proof as a Matter of Law and Pleadings (Legal Burden)
   • This refers to the obligation to establish the entire case.
   • It determines which party will fail if no evidence is led.
   • This burden is fixed and constant throughout the trial.
   • It is reflected in Section 104 of the BSA.
   • Lord Denning described this as the legal burden.
2. Burden of Proof in the Sense of Introducing Evidence (Evidentiary Burden / Onus of Proof)
   • This refers to the obligation to produce evidence at a particular stage.
   • It shifts from one party to the other during the course of trial.
   • It is provisional or tactical in nature.
   • This concept is embodied in Section 105 of the BSA.

Burden of Proof under Criminal Law
In criminal proceedings:

• The burden of establishing the charge lies entirely on the prosecution.
• The accused is presumed to be innocent until proven guilty.
• The accused is not required to prove his innocence.
• The prosecution must prove guilt beyond reasonable doubt.
• The prosecution must stand on its own evidence; weaknesses in the defence do not strengthen the prosecution case.

Thus, Section 104 operates strictly in favour of the accused in criminal trials.

Burden of Proof under Civil Law
In civil proceedings:

• The burden of proof lies on the party who asserts the existence of a fact.
• The standard of proof is preponderance of probabilities, not proof beyond reasonable doubt.
• The court looks at the substance of the claim, not merely the form of pleadings.
• The burden is discharged when the court finds that the asserted facts are more probable than not.

This standard applies uniformly to all civil cases.

Conclusion
The concept of burden of proof forms the backbone of the law of evidence. Sections 104 to 114 of the Bharatiya Sakshya Adhiniyam, 2023 codify both the legal burden and the evidentiary burden, ensuring clarity as to who must prove what and at what stage. By distinguishing between civil and criminal standards of proof and recognizing shifting onus during trial, the law strikes a careful balance between fairness, justice, and procedural efficiency.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Saving of Provisions of the Indian Succession Act relating to Wills [Section 103] Statutory Provision

Section 103 of the Bharatiya Sakshya Adhiniyam, 2023 provides that:
Nothing in this Chapter shall be taken to affect any of the provisions of the Indian Succession Act, 1925 as to the construction of wills.

Meaning and Purpose

• This section acts as a saving clause.
• It ensures that the rules laid down in the Bharatiya Sakshya Adhiniyam regarding evidence do not override or interfere with the provisions of the Indian Succession Act, 1925 concerning the construction and interpretation of wills.

Scope of Section 103

• The construction of wills is governed exclusively by the Indian Succession Act, 1925.
• Even if provisions in the Bharatiya Sakshya Adhiniyam deal with interpretation of documents or admissibility of evidence, those provisions cannot be applied to alter or affect how wills are to be construed.
• In case of any apparent conflict, the provisions of the Indian Succession Act shall prevail.

Rationale behind the Provision

• The Indian Succession Act is a special and comprehensive law dealing specifically with testamentary matters.
• The legislature intended to preserve the special rules and principles developed for interpreting wills, such as:
  • Intention of the testator
  • Harmonious construction of clauses
  • Preference for testamentary intent over technicalities
• Section 103 prevents general rules of evidence from disturbing these settled principles.

Legal Effect

• Courts must apply the Indian Succession Act, 1925 while interpreting wills.
• Provisions of Chapter VII of the Bharatiya Sakshya Adhiniyam cannot be used to:
  • Change the meaning of a will
  • Add to or subtract from its terms
  • Override statutory rules of testamentary interpretation

Conclusion
Section 103 of the Bharatiya Sakshya Adhiniyam, 2023 safeguards the autonomy of the Indian Succession Act, 1925 in matters relating to the construction of wills. It reinforces the principle that special laws prevail over general laws, thereby ensuring certainty and consistency in testamentary jurisprudence.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Who may give Evidence of Agreement Varying the Terms of a Document [Section 102]
Statutory Provision
Section 102 provides that:

• Persons who are not parties to a document, or not representatives in interest of the parties,
• May give evidence of any facts tending to show that there existed a contemporaneous agreement varying the terms of the document.

Meaning of Section 102

• This section deals with evidence by third parties (non-parties) to a document.
• While parties to a document are generally barred from giving oral evidence that contradicts or varies the written terms,
• Strangers to the document are not bound by this restriction and may prove facts showing that the written document does not represent the complete agreement.

Illustration

• A and B enter into a written contract where B agrees to sell cotton to A, payable on delivery.
• At the same time, they orally agree that A will be given three months’ credit.
• A and B cannot prove this oral agreement against each other.
• However, C, a third party whose interests are affected, may prove the existence of such an oral agreement.

Evidence by Non-Parties

• Parties to a document and their representatives are barred from leading evidence that:
  • Adds to
  • Subtracts from
  • Varies
  • Contradicts
    the written terms of the document.
• This restriction does not apply to non-parties.
• A person who is neither a party nor claiming through a party may give oral or other evidence to show:
  • A contemporaneous agreement
  • The true nature of the transaction
  • That the document does not reflect the full understanding between parties

Relation with Section 95

• Section 95 prohibits parties to a contract, grant, or disposition of property from contradicting its terms.
• Section 102:
  • Reinforces and clarifies this position
  • Applies to all documents, not only contracts
  • Explicitly permits non-parties to give evidence of varying agreements

Thus, Section 102 extends the principle of Section 95 to all kinds of documents and expressly recognizes the right of third parties to lead such evidence.

Scope and Significance

• Prevents injustice to third parties whose rights may be affected by a document they did not execute.
• Ensures that written documents cannot be used as a shield against persons who were not parties to them.
• Maintains the balance between:
  • Sanctity of written documents, and
  • Fairness to third parties.

Conclusion
Section 102 of the Bharatiya Sakshya Adhiniyam, 2023 permits non-parties to a document to give evidence of a contemporaneous agreement varying its terms. While parties themselves are bound by the written document, strangers are free to establish the real nature of the transaction when their interests are affected.