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Evidence Law Notes for Evidence Law Notes

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Burden of Proof : Definition

The expression burden of proof means “obligation to proof a fact.” Every party of the case has to establish facts which go in his/her favor or against his/her opponent. In other words, the general rule with regard to burden of proof is:” He/she who asserts must prove.” The reason is “one who drags another into the court must hear the burden of proving the facts which he/she asserts”.

The word ‘proof’ signifies a state of mental certainty as to existence or non-existence of some fact and the phrase’ burden of probabilities which has to be compulsive or overwhelming in the case of a choice in favor of a conviction as to remove all reasonable doubt. Burden of and presumption may become decisive only where evidence from both sides is equally balanced or there is paucity of evidence on either side.

Rebuttal of Presumption:

Section 29 of the Evidence Act 2031 states that there are certain facts, which are presumed by the court in favor of either party to the litigation. Presumption of law are those situations in which the law directs the court to presume certain facts on proof of some other facts. The court is obliged to presume as per the direction of law if such situation does not exist. Such situation are listed at the Section 6 of the Evidence Act 2031.The court acts as per the presumption until it is rebutted by the other party.

Similarly, presumption of facts are those situations in which the court acts on option whether to presume certain fact or not. If it does presume , the other party must bear burden of proof to rebut it. Section 7 of the Evidence Act 2031 has laid down such situations.

Presumption of Ownership:

Section 33 of the Evidence Act 2031 says that any person who is in possession of property is presumed to be owner of that property. The person rebutting it must bear burden of proof to the same effect. Similarly Section 110 of Evidence Act 1872 of India lays down that a person in possession of a property is presumed to be the owner . If anybody denies that the possessor is not owner, the burden of proof lies on him/her.

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