History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.195
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.195
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When the reply had been given the *sabhyas* had to consider the question about the burden of proof. Bṛ.⁴³⁰ says 'the sabhyas after considering the nature of the reply should call upon one of the parties that are in court to establish his case' (Sm. C. II. p. 50). What a party sets out to establish is called *sādhya* and the means whereby the claim (of the litigant) in its entirety is established is called *sādhana* (Kāt. 213 in V. P. p. 79). Yāj. II. 7 and Nār. II. 27 say that the party (on whom the burden of proof lies) should immediately (after the reply is given) write down the means whereby he proposes to prove his averments. This third stage (pāda) is called *kriyā* i. e. proof. *Sādhya* and *kārya* are synonyms, *kriyā* and *sādhana* also are synonyms (Kāt. in Aparārka p. 616, Vyāsa in Sm. C. II. p. 54). The rules about burden of proof are laid down by Hārīta (q. in Mit. on Yāj. II. 7, Aparārka p. 616). In a reply of denial, the burden of proof is on the plaintiff, in a reply of former judgment or of a special plea, it is on the defendant and in a reply of admission no question of burden of proof arises. Compare also Nār. II. 31. The Mit. on Yāj. II. 80 states another rule that an affirmative proposition has to be proved by him who asserts it (*bhāvapratijñāvādina eva kriyā*). Yāj. II. 22, Nār. II. 28-29 and IV. 69, Bṛ. (in Sm. C. II. p.
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54), and others say that means of proof are two-fold, human and divine, and that documents, witnesses and possession are the human means of proof (Vas. 16. 10 also), while the ordeals of balance and others are divine means. Yāj. II. 22, Nār. II. 29, Kāt. 217 expressly state that ordeals are to be resorted to only when none of the human means are possible or available. If one party relies on human means alone and the other offers divine means, the king (or judge) has to accept human means and not divine; in disputes among men, if there be human means of proof though reaching (or covering) only a portion (of the allegations in the plaint) then human means should be accepted and not divine ones even though the latter may cover the whole ground (Kāt. 218–219 q. by Mit. on Yāj. II. 22). This latter rule is based on the proposition laid down in Yāj. II. 20 and Viṣṇudharmasūtra VI. 22 that when a party totally denies a claim and the opponent establishes by evidence a substantial portion of it, the judge may pass a decree against the denying party for the whole of the claim. This is practically the same as the maxim ‘omnia praesumuntur contra spoliatorem’. ⁴³¹ Therefore the general rule was that the divine mode of proof was to be resorted to only in the absence of any human means of proof. Kāt. 229 (q. by Mit. on Yāj. II. 22, Aparārka p. 629) allows witnesses or ordeals when the dispute is started with reference to *sāhasa*, assault or abuse and causes that spring from force and Kāt.
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230 (q. in Sm. C. II. p. 51) provides that, in the case of a person guilty of *sāhasa* perpetrated in secret, investigation has to be made by divine proof. Kāt. 225–228 (q. by Mit. on Yāj. II. 22, Aparārka p. 629, Sm. C. II. pp. 53–54) lay down certain rules about preference among the several means of proof: whatever are declared as the conventional usages of the associations of traders, of guilds (of artisans) and of groups (of brāhmaṇas), the means of proving them are documents and not ordeals nor witnesses; enjoyment431a (or possession) alone is weightier in the case of the making and (the use of) doors and ways, as also in the case of water-courses and the like (i. e. in the case of easements) and not writing nor witnesses; in the case of things promised to be given but not given, when a decision is to be given in disputes of servants with masters, in the matter of taking back a thing after it is sold or when a person having purchased a thing does not pay the price, in gambling and prize fighting--when in these matters disputes arise the means of proof are witnesses and not documents nor ordeals. Marīci (q. by Sm. C. II. 60, V. P. p. 141) states that as regards the sale, mortgage, gift or partition of immoveable property a document (should be executed as it) enables the person (in whose favour it is executed) to acquire (clear) title and freedom from doubt⁴³² (even after the lapse of years).
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It is in consonance with this that the Indian Legislature (in the Transfer of Property Act, IV of 1882) requires writing and registration as regards the sale, mortgage and gift of immoveable property. Nārada IV. 75 very concisely hits the special characteristics of each *pramāṇa*: 'a document is always strong, witnesses are strong (as evidence) only as long as they are alive, possession becomes strong as time passes'. The comparative strength of the several kinds of evidence is well put by Bṛhaspati⁴³³: 'Witnesses are superior to inference (circumstantial evidence), a document is superior to witnesses, undisturbed possession for three generations is superior to all these'. Kāt. 221 (q. by Mit. on Yāj. II. 80 and V. P. p. 80) gives the warning that when a litigant abandoning a strong ground or means of proof resorts to a weak one to prove his case, he would not be again entitled to rely on that (strong ground of proof) after the members of the court have decided as to who should succeed. This practically propounds the same rule as that of constructive *res judicata* contained in explanation 4 to section 11 of the Indian Civil Pro. Code (of 1908).