History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.195.1

v4.c63.195.1

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.