LAW OF EVIDENCE 549
Proviso —
Illus Sec. 92 I . P. C.
Question is who should prove that the case of the Accused falls within the Exception, General or Special. Exception or the Proviso as the case may be ? The prosecution who alleges that it does not or the Accused who alleges that it does ? The Answer is given in Section 105. The burden is on the Accused to prove.
This is a departure from the previous law. Under it the burden was on the prosecution to prove that the case did not fall within the Exception,
§ Burden of Proving an Exception to a Civil Law —
1. There is no specific section in the Evidence Act which regulates the Burden of Proof in respect of an exception to a Civil Law. The rule is however the same as in Criminal Law. Namely that the Defendant must prove that his case falls under the Exception.
Illus— 15 Cal. 555
“The suit is governed by Section 37 of Bengal Act XI of
1859 (Revenue Sale Act)—and that section dealing separately with encumbrance and under tenures, lays down that the Auction purchaser shall be entitled to avoid all under tenures and to eject the holders of them with certain exceptions, and then goes on to set out the Exceptions. It appears to us that the presumption is in favour of the general proposition of law laying down that all under tenures are voidable, and that pleading a certain exception is bound to bring himself within it. That being so, it will be for the Defendant in this case to bring himself within the exception which he pleads.”
§ Burden of Proving an Exception a proviso/or a condition precedent in an Agreement.
1. Distinction between a Proviso and an Exception.
A Proviso is properly speaking the statement of some thing extrinsic of the subject-matter of a covenant which by the terms of the covenant is to go in discharge of that covenant by way of defeasance.
An Exception is a taking out of the covenant some part of the subject-matter of the covenant.