Sajjad Husain LawSajjad Husain Law Associates

Introduction

A client sells property to the advocate handling her case. A son, just turned eighteen, sells his share of land to his own father. Neither transaction is illegal on its face — a sale is a sale. But the law of evidence treats both very differently from a sale between strangers, because in both, one side held a position the other trusted absolutely. When such a transaction is later challenged, who has to explain themselves?

Section 114 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) answers that question: it is the trusted party, not the trusting one, who must come forward and prove the transaction was made in good faith. This article covers Section 114's text and its two built-in illustrations, a Supreme Court ruling on exactly how far this burden-shift reaches, and a small but genuine wording update from the provision's 1872 predecessor.

Section 114 corresponds word-for-word to Section 111 of the Indian Evidence Act, 1872 — with one small but real exception. Illustration (a) originally read "attorney," the term used before the Advocates Act, 1961 unified India's legal profession under a single designation; the BSA updates it to "advocate." Illustration (b) and the operative rule itself are untouched. It's the same category of change as Section 116 BSA's "legitimate son" becoming "legitimate child" — a modernisation of terminology to match how the profession is actually described today, not a shift in the underlying rule.

What Counts as a Position of "Active Confidence"

Not every relationship of trust triggers Section 114. The phrase "active confidence" describes a relationship where one party is bound to look after the other's interests — not merely a friendship or a general reputation for honesty. The BSA's own illustrations mark out the paradigm cases: a lawyer acting for a client, and a parent dealing with a child who has only just reached majority and would ordinarily still look to that parent for guidance. Courts have extended the same logic to other custodial or advisory relationships — trustees and beneficiaries, guardians and wards, spiritual advisors and devotees — wherever the facts show one side genuinely held the other's interests in its keeping.

Anil Rishi v. Gurbaksh Singh: The Relationship Itself Must Be Proved First

The most-cited limiting principle on Section 111 IEA comes from Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 (AIR 2006 SC 1971). The Supreme Court explained that when fraud, misrepresentation, or undue influence is alleged in an ordinary transaction, the person alleging it normally carries that burden — the general rule of evidence. Section 111 (now Section 114 BSA) creates a genuine exception, but only once a fiduciary relationship or a position of active confidence has itself been established: at that point, the law presumes against the transaction, and the burden of proving good faith, fair play, and that no advantage was taken shifts onto the dominant party.

In other words, Section 114 is not a general suspicion clause available whenever one party had more knowledge, more money, or more social standing than the other. It requires the same kind of factual anchor Chapter VII demands elsewhere in the Act: prove the relationship first, and only then does the burden of proving good faith move.

Reading the Act's Own Two Illustrations Side by Side

Illustration (a)'s advocate-client sale and illustration (b)'s father-son sale look different on their face — one is professional, the other familial — but Section 114 treats them identically, and the reason is instructive. In (a), the advocate has professional knowledge and influence over a client who typically defers to that expertise; in (b), the father, as the recently-adult son's parent, retains the kind of authority a child does not shed the moment they turn eighteen. In both, the law does not ask whether the trusted party is generally honest — it simply requires that party to step forward, once the transaction is challenged, and affirmatively demonstrate the sale was fair, that the price was genuine, and that the weaker party's consent was not simply deference dressed up as agreement.

Where This Fits in Chapter VII's Burden-Shifting Scheme

Alongside Section 112's presumption that an established relationship continues and Section 113's presumption that possession proves ownership, Section 114 completes a small cluster of provisions in Chapter VII built around the same idea: once certain facts are shown — a relationship, a possession, a position of active confidence — the law assigns the burden of disproving the natural inference to whichever party is best placed to explain it. Section 114 is the one aimed squarely at the party holding influence, not the party without it.

Key Takeaways

1. Section 114 BSA shifts the burden of proving good faith onto the party in a position of "active confidence" — but only once that position is itself independently established.
2. The provision carries forward Section 111 IEA verbatim in substance, with one genuine terminology update: "attorney" becomes "advocate" in illustration (a), the fifth confirmed wording change found across this project's BSA coverage.
3. Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558, confirms the burden only shifts after the fiduciary relationship is proved; until then, whoever alleges fraud or undue influence carries the ordinary burden.
4. The Act's own illustrations — advocate/client and father/son — cover professional and familial active-confidence relationships alike, and courts have extended the same logic to trustees, guardians, and similar custodial roles.
5. Section 114 completes a Chapter VII cluster, alongside Sections 112 and 113, built on the same structure: prove the anchoring fact, and the burden of disproving the natural inference shifts to the party best placed to answer it.

Conclusion

Section 114 exists because the law recognises that some relationships make free, informed consent harder to verify from the outside — and it responds not by banning such transactions, but by making the trusted party answer for them when challenged. Anil Rishi keeps that rule properly bounded: it is a burden that shifts once trust is shown to exist, not a general licence to presume wrongdoing. Chapter VII's descent through the burden-of-proof provisions continues next at Section 113.