व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

S. I. 1. 32-34 ]
M.p 121 31-p 131 21 ] BURDEN OF PROOF 17
gold was taken but that clothes were not taken or were returned ( after being
received ) or that ( the plaintiff ) was defeated ( in a lawcourt ) in regard to
clothes, then the judicial proceeding should be carried on with reference to
clothes only and not with reference to gold, since though ( gold ) is more
valuable, there is no necessity of proof in regard to it. Where the claim being
' this is my cow, she was missing on a certain day, she is seen to-day in
this person's ( the defendant's ) house ' and the reply being ' this is false, the
cow was in my house even before the time indicated in the plaint ', the
reply though a combination of the replies of denial and special plea is not
a faulty reply, since it meets the whole plaint ( all the points in the plaint ).
This is a reply of denial together with a special plea. Here the burden of
proof rests on the defendant alone, not on the plaintiff also,¹ since Hārīta says
' in a reply of denial and special plea, the reply of special plea must be taken
up ( for investigation ) '. In the same way when there is a combination of
the replies of denial and former judgment and of the replies of special plea and
former judgment, they are not faulty replies, if such combinations meet the
whole plaint. Here in both cases the burden of proof lies on the defendant
alone. Hence in no judicial proceeding whatever does the burden of proof
lie on both the parties ( at the same time ). This will suffice (to explain the
above passage of Kātyāyana).²
After the reply has been recorded, the proofs are to be exhibited and
Yājñavalkya (II. 7-8) declares the order ( in adducing proof ) :
Then the plaintiff should at once cause to be written the evidence
( which he proposes to adduce ) for establishing the matter alleged (in the
plaint ). If that (evidence) holds good he obtains success, if it be otherwise
( i. e. if it does not hold good ), the reverse is the case ( i. e. he is defeated ).
*This ( verse ) applies as regards a reply of denial, but in other kinds of
replies it is the defendant only who has to adduce evidence, as Hārīta says :
In a reply of former judgment and of special plea the defendant should
exhibit the proof, but in a reply of denial, the plaintiff ( should exhibit it);
in the reply of admission, there is no need for it ( for proof ).
Yājñavalkya ( II. 8 ) thus declares that a judicial proceeding has four parts
(stages):
This judicial procedure is shown (by me) to have four parts ( stages ) in
litigations.
And the four parts ( of Vyavahāra ) are clearly set forth in another smṛti:
( Vyavahāra ) is said to be fourfold as in it enter four parts on account
of there being the plaint, the reply, the proof and the decision that come in
order one after another.
1 The burden of proof in a pure reply of denial is on the plaintiff and in a pure reply
of special plea on the defendant. As this is a reply of denial and special plea it may be argued
that the onus of proof is on both. To this a reply is given here.
2 For detailed explanation vide notes to V. M. pp. 32–35,
*P. 18 (text).
V. M. 3