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.

Abstract – 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 –
  • (a) if both parties adduced evidence
  • (b) if there is sufficient evidence on an issue.
  • 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);
  • Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673,
  • Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040;
  • Mohd.  Abdullah Azam Khan Vs. Nawab Kazim Ali Khan,(1976) 3 SCC 32
• 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).
• 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.

‘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.

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

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.”

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 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.] 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.) 9.4.2024, 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.) 9.4.2024, 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.

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

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.”

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.

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.

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.