550 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
Whether particular words form a proviso or an exception will not in any way depend on the precise form in which they are introduced, or the part of a deed in which they are found.
2. The rule of pleading is that a Plaintiff need never state a proviso in his plaint, but he must always state an exception.
Aga Syud Saduck vs. Raji Jackariah Mahomed.
2 Ind. Jur. N.S. 308(310)
310. Markby J.
In the Note to Thursby vs. Plant’ 1 Wms. Saund. p. 2336 it is laid down that a proviso is properly the subject of some thing extrinsic of a subject-matter of a covenant by way of defeasance. An exception is a taking out of the Covenant some part of the subject-matter of it. Of these be right definitions a Plaintiff need not never state a proviso, but always state an exception.
- Although this is laid down as a rule of pleading it also holds good as a rule of burden of proof. So if a clause in an instrument such as a policy of assurance, be an exception, the Plaintiff must only state it, but show that it is not applicable. If it be a proviso the Defendant must state it, and show that it applies.
2 Ind.Jur.N.S. 308,310
2. Ind. Jur. N. S. 308.
1867
A sued B. & Co. on a policy of insurance on the ship “Alaya” from noon of the 24th November 1865 to noon of the 24th February 1866 “and to all ports and places”, The words “and to all ports and places” were written, the rest being printed. B & Co. in their Written Statement admitted the policy, but set up the following exception : “All risks or losses arising from the detention etc. ; also from storms and gales of wind, or other perils of the sea; while touching or trading on the Coast of Coromandel from Point Palmyras to Ceylon and within surroundings between the 15th October and 15th December inclusive are here by excepted, which risks or losses are to be borne by the assured and not by the Assurers, notwithstanding anything to the contrary hereinbefore expressed.”