Vol. 12 · pages 571–575

550 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Whether particular words form a proviso or an exception will not in any way depend on the precise form in which they are introduced, or the part of a deed in which they are found. 2. The rule of pleading is that a Plaintiff need never state a proviso in his plaint, but he must always state an exception. Aga Syud Saduck vs. Raji Jackariah Mahomed. 2 Ind. Jur. N.S. 308(310) 310. Markby J. In the Note to Thursby vs. Plant’ 1 Wms. Saund. p. 2336 it is laid down that a proviso is properly the subject of some thing extrinsic of a subject-matter of a covenant by way of defeasance. An exception is a taking out of the Covenant some part of the subject-matter of it. Of these be right definitions a Plaintiff need not never state a proviso, but always state an exception. 3. Although this is laid down as a rule of pleading it also holds good as a rule of burden of proof. So if a clause in an instrument such as a policy of assurance, be an exception, the Plaintiff must only state it, but show that it is not applicable. If it be a proviso the Defendant must state it, and show that it applies. 2 Ind.Jur.N.S. 308,310 2. Ind. Jur. N. S. 308. 1867 A sued B. & Co. on a policy of insurance on the ship “Alaya” from noon of the 24th November 1865 to noon of the 24th February 1866 “and to all ports and places”, The words “and to all ports and places” were written, the rest being printed. B & Co. in their Written Statement admitted the policy, but set up the following exception : “All risks or losses arising from the detention etc.; also from storms and gales of wind, or other perils of the sea; while touching or trading on the Coast of Coromandel from Point Palmyras to Ceylon and within surroundings between the 15th October and 15th December inclusive are here by excepted, which risks or losses are to be borne by the assured and not by the Assurers, notwithstanding anything to the contrary hereinbefore expressed.”

551LAW OF EVIDENCE 3. Akiks 4. Condition Precedent = Proviso. In this connection the law of evidence has appointed three principles. I. The burden of proof of a fact is on a person who wants to benefit himself by the special facilities provided by the law of evidence for the proof of that fact. Section 104 is an illustration of this principle. 2. § Burden of proving a particular fact. 1. The rule is the same as in the case of burden of proving an issue. That is the burden of proving a particular fact is on the party who affirms the existence of the fact and not upon the party who denies it. The rule is contained in Section 103 and the reasons of the rule are the same in both cases. 2. There are however certain facts the burden of proving which is placed by law upon a particular person irrespective of the question whether he asserts its existence or denies its existence. Sections 104 to 111 specify the cases in which the law of evidence places the burden on particular persons. 3. The principles underlying these sections and which justify this departure from the general rule relating to Burden of Proof seem to be four. I. The burden of proving a fact should be on a party who wants to take the benefit of the special facilities provided by the law of evidence for the proof of that fact. II. Where parties are unequal in their relative position the burden of proving a particular fact should rest on the one who is comparatively in a better or stronger position. III. Where things have continued to exist the burden of proving their discontinuance is on the party who alleges discontinuance. IV. Where one fact is a mere legal incident of another fact the burden of proving that the incident should not be attached to the fact is on the party who alleges that it should not be. § Sections illustrative of the First principle. 1. Section 104 is an illustration of the First Principle. This deals with the burden of proof of a fact, the proof which is a necessary prerequisite for the proof of another fact.

552 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 2. The law of evidence lays down certain conditions which must be fulfilled before evidence of a particular fact is given. Similarly the law of evidence lays down certain conditions which must be fulfilled before a particular method of proving a fact can be resorted to. Illus-I. Nothing is evidence unless it is given before and in the presence of the Court. Ordinarily therefore the statement made by a person who is dead is not evidence. The law of evidence however permits evidence being given of anything said by a deceased person if it is relevant to the issue on the condition that the fact of his death is proved. Illus-II. The law of Evidence requires that the contents of a document must be proved by the production of the original. The law however permits secondary evidence being given on the condition that the loss of the original is proved. 3. The question is who must prove the fact of death or the fact of the loss of the original document ? In general who must prove these prerequisites ? Section 104 lays the burden on the party who wishes to profit by these special facilities. § Sections illustrative of the Second Principle. 1. Section 106 and 111 illustrate the Second Principle. Section 106. 1. This section deals with the burden of proof of a fact which is especially within the knowledge of one of the Parties. (i) If A alleges a certain fact and if B denies it then by virtue of the rule contained in Section 103, A must prove it because A affirms it. (ii) But if the fact is especially within the knowledge of B then by virtue of this section the burden of proof in respect of it rests on B.

553LAW OF EVIDENCE 2. Illustrations. 22 Cal 164. Haradhan had 2 daughters—twins about a year old—sold one of them to Karuna a prostitute for Rs. 9 and within 10 days sold to Karuna who she had brought up from her infancy and who was then living with her and leading the life of a prostitute. Question. On a prosecution under Sec. 372/373 for buying and selling minors for prostitution the question was who should prove that the intention was that the girls were to be used for prostitution. By the accused-being a matter within their knowledge. 23 All 124. Several persons were found at 11 O’clock at night on a road just outside the city of Agra all carrying arms (guns and swords) concealed under their clothes. None of them had a license to carry arms, and none could give reasonable explanation of his presence at the spot. On a charge under Section 402 held burden of intention on the Accused. Section 111. 1. This section deals with the burden of proof in respect of the good faith of a transaction. 2. Definition of good faith. (1) Good faith is not defined in the Evidence Act. (2) It is defined in Section 52 of the Indian Penal Code. Nothing is said to be done or believed in ‘Good faith which is done of believed without due care and attention. (3) It is also defined in Section 3 (20) of the General Clauses Act X of 1897. “A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not”. (4) The difference between the two definitions is that the question of honesty is immaterial to good faith as defined by the Penal Code. But it is the very core of the definition as given in the General Clauses Act. (5) The term good faith as used in the Evidence Act is used in the sense in which it is used in the General Clauses Act.

554 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 3. The General rule regarding Burden of proving good faith. (i) It is a general principle of law to hold that all persons in their dealings act fairly. Nothing dishonourable or odius is to be attributed to any person. Law will not impute vice and immorality. That being so the person who wishes to impeach the conduct of any person as being dishonest or unfair has the burden of proving dishonesty and unfairness. In other words the burden of proof in respect of good faith is upon the person who allege the absence of good faith. The motive must be proved. (ii) Section 111 enacts an exception to this general rule and prescribes the circumstances in which a person must prove affirmatively the presence of good faith. If the good faith of a transaction between two parties is questioned by one of them and the two are so related that one stands to the other in a position of Active confidence the burden of proving good faith affirmatively is on the person who stands in the position of active confidence. This Exception applies only where the two parties to the transaction are so related that one stands to the other in a position of active confidence. (IV) Meaning of the “Position of Active Confidence ” : (i) Position means legal relationship. (ii) Active confidence means habituated to consult and act on advice. Position of Active confidence therefore means such legal relationship between the parties as gives rise to the habit in one party to consult the other for the protection of his interest and imposes upon the other the duty to see that his advise is such as will safeguard his interest. The section contemplates legal relationship between the parties such that it becomes the duty of the person taken in confidence to protect the others interests. Coulson vs. Allison The rule applies because parties 2.D.F.&J. 581. were husband and wife. Hargeave vs. Everard The rule was not applied because 6.Ir.Ch.R.278. parties were not husband and wife but mistress and paramour.