Introduction
Strip every witness, every document, and every argument out of a lawsuit. No evidence at all is led by either side. Who wins? Whoever the answer favours by default is not, under Section 105 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), the party who gets to sit back — it is the other side who must actually produce evidence, because the law has just identified exactly who bears the burden of proof.
This article covers Section 105's text and its own two illustrations, the distinction between this rule and the more foundational Section 104, and a fresh example applying the same test to a modern contract dispute.
105. On whom burden of proof lies.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustrations.
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B.
Section 105 reproduces Section 102 of the Indian Evidence Act, 1872 without any wording change, confirmed against two independent bare-act sources.
The Silence Test, Applied to Both Illustrations
Illustration (a) shows the test applied to a possession dispute: B is already sitting on the land, so if both parties stayed completely silent, B keeps it by default — meaning A, who wants to disturb that default, carries the burden of proving the will that supposedly entitles him to it. Illustration (b) shows the same test producing the opposite result on different facts: because B has already admitted executing the bond, silence from both sides would leave A entitled to payment — so it is B, who wants to escape that default by alleging fraud, who must now prove the fraud.
A Rule About the Whole Case, Not Each Fact
Section 105 operates one level up from Section 106 (the particular-fact rule covered separately in this Act). Section 105 asks a single question about the proceeding as a whole: who would lose outright if the courtroom were completely silent? The Supreme Court, in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558, distinguished this whole-case burden — which stays fixed on one party throughout — from the separate, narrower "onus of proof," which can shift back and forth between parties issue by issue as a trial actually unfolds. Section 105 answers the fixed, whole-case question; the shifting, issue-by-issue question belongs to Section 106.
A Fresh Example: A Software Licensing Dispute
A software vendor sues a client for unpaid licence fees under a signed contract. The client admits signing the contract but claims the vendor never actually delivered the software. If neither side led any evidence at all, the vendor would fail — a signed contract alone does not prove performance actually happened. Applying Section 105's test, the burden of proof in this proceeding lies on the vendor: having chosen to sue for money it says it is owed, it must lead evidence establishing that it in fact delivered what the contract required, not merely that the contract exists.
Key Takeaways
- Section 105 BSA carries forward Section 102 IEA verbatim, both illustrations intact, confirmed unchanged.
- The test is simple: imagine no evidence at all is given by either side, and see who would lose by default — the burden of proof lies on that party.
- The Act's own illustrations show the test cutting both ways: sometimes it lands on the plaintiff (illustration a), sometimes on the defendant once they raise their own affirmative claim (illustration b).
- Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558, distinguishes this fixed, whole-case burden from the separate, shifting "onus of proof" that moves between parties issue by issue as a trial develops.
- The same test applies unchanged to modern disputes — a software licensing dispute resolves under exactly the same logic as the Act's 1872-era land and bond examples.
Conclusion
Section 105 gives every civil dispute a clean starting point: work out who wins if nobody proves anything, and that tells you who actually has to come to court with evidence. It is a deceptively simple test that resolves disputes as different as inherited land, a disputed bond, and a modern software contract using the exact same logic. Chapter VII's descent through the burden-of-proof provisions concludes next at Section 104, the chapter's foundational, opening rule.