Vol. 12 · pages 576–580

555LAW OF EVIDENCE A transaction between Trustee and beneficiary, solicitor and client, father and son or husband and wife would be subject to this rule if the issue of good faith were raised. (V) The rule although confined by the Section to cases where one person stands to the other in a position of active confidence it is extended by the Court to all cases where a person has domination over another and is in a position to exercise undue influence. Sections 107-108. 1. They must be read together because 108 is only a proviso to the rule contained in Section 107. 2. The sections do not deal with the question, how long was a person alive. 3. The sections do not deal with the question at what time he died. 4. The sections do not deal with the question whether he was alive or dead at some antecedent date. 5. The sections deal with the question whether a person is alive or dead at the time when the question is raised, that is at the date of the suit. Sections illustrative of the third Principle. Sections 107, 108 and 109 Sections 107 deals with the burden of proof where the question is whether a man is alive or dead. According to this section where it is proved that the person in question was alive within the last 30 years then the burden is upon the party who asserts that he is dead. Where it is not proved that the person in question was alive within the last 30 years then the burden is on the person who alleges that he is alive. Section 108 deals with the burden of proof where the question is whether the man who has not been heard of is alive or dead. Acording to the section : (1) if the man is not heard of for seven years and (2) by those who would naturally have heard of him the burden is upon the party who affirms that he is alive.

556 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Comment— The death of any party once shown to have been alive is a matter to be determined by the Court. As the presumption is in favour of the continuance of life the onus of proving the death lies on the party who asserts it. But the presumption of continuance of life ceases at the expiration of 7 years from the period when the person in question was last heard of. And the burden of proving that the person was alive within the seven years is upon the person asserting it But a Court may find the fact of death from the lapse of a shorter period than seven years, if other circumstance concur. Re.: Walker (1909) P. 115. Application of Sections 107-108. The question for which provision is made in these two sections is whether a person is alive or dead at the time the question is raised. These sections do not apply where the question is whether the man died at a particular time. If any one seeks to establish the precise time of death the burden of proof is upon him. Section 109. This section deals with the burden of proof as to continuance or discontinuance of three relationships. (1) Partners. (2) Landlord and tenant. (3) Principal and agent This section provides that once it is shown that two persons have stood in the relationship of partners, Landlord and Tenant or Principal and Agent the burden of proving that they have ceased to stand in that relationship is on the party who alleges that they have ceased. § Section illustrative of the 4th Principle— Section 110. This section deals with the burden of proof regarding title to property when the competition is between a person in possession and the owner who is out of possession. 1. The rule laid down in Section 110 is that the burden of proof that the person in possession is not the owner is on the person who alleges that he is not the Owner.

557LAW OF EVIDENCE Reason for the Rule— Ownership chiefly imports the right to exclusive possession and enjoyment of a thing. The owner in possession has the right to exclude all others from possession and enjoyment of it; and if he is wrongfully deprived of what he owns, he has the right to recover possession of it. Ownership also imports the power to dispose of property, to sell, mortgage or donate. Right to possession and Right to dispose of are therefore incidents of Ownership. Where there is ownership there goes with it the right to possession and the right to dispose. The law therefore holds that a person would not be in possession of property unless he was the owner and places the burden on his opponent. The principle of the section does not apply in the following cases— (i) Where the possession is merely judicial as distinguished from actual present possession. (ii) Where possession is obtained by fraud or force. BURDEN OF PROOF 1. The Law requires the person to discharge the Burden of Proof which is placed upon him. 2. In discharging the Burden of Proof attention must be paid to two considerations. (i) There are Matters of which Proof is not required. (ii) There are Matters the Proof of it is not allowed. 3. We must therefore proceed to consider these matters and the rules regulating them.

558 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES I. BURDEN OF PROOF (i) Matters of which Proof is not required. § Facts of which Proof is not required. 1. Matters of which Proof is not required fall under three heads: (1) Facts Judicially noticed. (2) Facts admitted by the Parties. (3) Facts the existence of which is presumed by law. § (i) Facts judicially noticed. 1. Sections 56 and 57 deals with facts judicially noticed. 2. Section 56 says no fact of which the Court will take judicial notice need be proved. 3. Sec. 57 lays down 13 matters of which the Court must take judicial notice. 4. Principle of the Secion. Certain matters are so notorious and are so clearly established that it would be useless to insist that they should be proved by evidence. Illus.— (1) Commencement and Continuance of hostilities. (2) Geographical Divisions. 5. The last two paras are important and read with section 56. They furnish a clue to the proper understanding of them. The effect is that when a matter enumerated in Section 57 comes into question, the parties who assert the existence to the contrary need not produce any evidence in support of their assertions. The judge must come to a conclusion without requiring any formal evidence. (1) The Judge’s own knowledge may be sufficient. If it is not he must look the matter up. (2) The Judge can also call upon the parties to assist him, if he thinks it necessary. (3) The Judge in making this investigation is emancipated entirely from all the rules of evidence laid down for the investigation of facts which the law require s a person to prove.

559LAW OF EVIDENCE (ii) Facts admitted by parties. Section 58 1. There are two sorts of admissions which must be distinguished. (1) Formal admissions made touching matters related to a proceeding in a Court and made intentionally by parties so as to dispense with their Proof. (2) Informal admissions alleged to have been made by a party to the proceedings but not made in the course of the proceedings. 2. Section 58 applies only to formal Admissions. Formal admissions may be made by parties in 6 different ways : (i) On the pleadings. (ii) In answer to interrogatories. (iii) In answer to a notice to admit specified facts. (iv) In answer to produce and admit documents. (v) By the Solicitor of a party during the litigation. (vi) In open Court by the litigant himself or by his Advocate. 3. Proof of such facts would be futile. The Court has to try the questions on which the parties are at issue and not on which they are agreed. 4. Applicability of Sec. 58 to criminal trials is a matter on which there is a difference of opinion. (i) Nortion says that it does not apply to criminal trials. (ii) Cunningham says that it does. 30 Bom. L. R. 646. Section 58 makes no exception in regard to criminal proceedings. Rat. Un. Cr. C. 769. Section 58 makes no exception in regard to Criminal Proceedings. 39 Mad. 449. On general principals of Jurisprudence Sec. 58 ought not to be applied to criminal trials.