XAVIER UNIVERSITY

Xavier law school

PROJECT TITLE

Presumption As To Documents Under Indian Evidence Act,1872

SUBJECT

Law of Evidence

Name of the Candidate : SRIKAR LADI

Roll No. :Ul18bb004

Semester : 5

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 TABLE OF CONTENTS

1. ACKNOWLEDGEMENT ……………………………………………………………...3
2. INTRODUCTION…………………………………………………………………........4
3. DOCUMENT……………………………………………………………………………4
4. PRESUMPTION………………………………………………………………………..4
5. SHALL PRESUME…………………………………………………………………… .5
i. SECTION 79…………………………………………………………………….6
ii. SECTION 80…………………………………………………………………….7
iii. SECTION 81…………………………………………………………………….7
iv. SECTION 81A…………………………………………………………………..8
v. SECTION 82…………………………………………………………………….8
vi. SECTION 83…………………………………………………………………….9
vii. SECTION 84……………………………………………………………………10
viii. SECTION 85……………………………………………………………………10
ix. SECTION 85A………………………………………………………………….11
x. SECTION 85B………………………………………………………………….11
xi. SECTION 85C…………………………………………………………….........12
xii. SECTION 89………………………………………………………………........12
6. MAY PRESUME……………………………………………………………………..,..12
i. SECTION 86……………………………………………………………………13
ii. SECTION 87……………………………………………………………………13
iii. SECTION 88……………………………………………………………………12
iv. SECTION 88A………………………………………………………………….13
v. SECTION 89……………………………………………………………………14
vi. SECTION 90…………………………………………………………………..14
vii. SECTION 90 A………………………………………………………………..15
7. CONCLUSION…………..……………………………………………………………15

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ACKNOWLEDGEMENT

I heartfully express my special thanks to my subject teacher for giving me the opportunity
to do the project on the topic ‘Presumption As To Documents Under Indian Evidence
Act,1872 ’. It helped me to know many things and gain knowledge. I also thank him for
guiding me throughout the project and responding for my doubts regarding the project.

I would also like to thank my University ‘XAVIER UNIVERSITY’ for providing me with
all the required materials for the completion of my project and I also came to know many
new things

LADI SRIKAR

ROLLNO: Ul18bb004

Semester 5

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INTRODUCTION

Section 79 to 90A of the Indian Evidence Act 1872 set out the arrangements identifying with the
assumptions as to report. Area 79 to 85 of the said Act manage are called assumptions of law and
Section 86 to 88 and 90 are identified with the assumptions of certainty.

DOCUMENT -

"Archive" signifies any issue communicated or depicted upon any substance by methods for
letters figures or stamps, or by more than one of those methods, expected to be utilized or which
might be utilized, to record that issue.

Illustration

A composing is a record; Words printed, lithographed or shot are archives; A guide or plan is a
report; An engraving on a metal plate or stone is a record; A personification is a record.

PRESUMPTION:

Meaning and Definition of Presumption -  The term presumption can be defined to be an

inference affirmative or dissaffirmative of the truth or falsehood of a doubtful fact proportion,
drawn by a process of probable reasoning from something proved or taken for granted.

In MS NARAYANA MENON V. STATE OK KERALA & ANR.-2006(7)TMO 576

SUPREME COURT:

Held that a presumption is a legal or a factual assumption drawn from the existence of certain
facts . Presumption raised under the statute only has an evidentiary value

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A fact assumed to be true under the law is called a presumption. For example, a criminal
defendant is presumed to be innocent until the prosecuting attorney proves beyond a reasonable
doubt that he/she is guilty. Presumptions are used to relieve a party from having to actually prove
the truth of the fact being presumed. Once a presumption is relied on by one party, however, the
other party is normally allowed to offer evidence to disprove (rebut) the presumption. The
presumption is known as a rebuttable presumption. In essence, then, what a presumption really
does is place the obligation of presenting evidence concerning a particular fact on a particular
party

Presumptions are either legal and artificial, or natural.

Legal or artificial presumptions are such as derive from the law a technical or artificial,
operation and effect, beyond their mere natural tendency to produce belief, and operate
uniformly, without applying the process of reasoning on which they are founded, to the
circumstances of the particular case. For instance, at the expiration of twenty years, without
payment of interest on a bond, or other acknowledgment of its existence, satisfaction is to be
presumed; but if a single day less than twenty years has elapsed, the presumption of satisfaction
from mere lapse of time does not arise; this is evidently an artificial and arbitrary distinction.
Legal presumptions are of two kinds:

i. Firstly, such as are made by the law itself, or presumptions of mere law;
ii. ii. Secondly, such as are to be made by a jury, or presumptions of law and fact.

Classification of Presumptions

  Presumptions can be classified into May presume, Shall Presume and Conclusive presumes

Two types

1. May presume – the court my presume a fact, it may either regard such fact as proved,
unless it is disproved, or may call for proof of it;
2. Shall presume – the court shall presume a fact, it shall regard such fact as proved, unless
and until it is proved.

SHALL PREXUME:

The following sections of Evidence Act, 1872 provides that the court shall presume as proved

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 79. Presumption as to genuineness of certified copies.

80. Presumption as to documents produced as records of evidence

81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other

documents.

81A. Presumption as to Gazettes in electronic forms.

82. Presumption as to document admissible in England without proof of seal or signature.

83. Presumption as to Maps or Plans made by authority of Government

84. Presumption as to collections of laws and reports of decisions

85. Presumption as to powers of attorney

85A. Presumption as to electronic agreements.

85B. Presumption as to electronic records and digital signatures

85C. Presumption as to Digital Signature Certificates

89. Presumption as to due execution etc, of documents not produced

Presumption as to genuineness of certified copies ).

        The Court shall presume to be genuine every document purporting to be a certificate,

certified copy, or other document, which is by law declared to be admissible as evidence of any
particular fact, and which purports to be duly certified by any officer of the Central Government
or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly
authorized thereto by the Central Government:

Provided that such document is substantially in the form and purports to be executed in the
manner directed by law in that behalf. The Court shall also presume that any officer by whom
any such document purports to be signed or certified, held, when he signed, the official character
which he claims in such paper.

 Budhmal Bhansali @ B. Bhansali Vs. State of West Bengal and anr., 2008

Madras high court was of the view that the form no. 32 filed with the registrar of companies is a
public document as per section 74 of the indian evidence act, 1872. the learned single judge

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further recorded when the certified extract of such a public document is filed, the court shall
presume as to the genuineness of such certified copies in terms of provision under section 79 of
the evidence act.14. in s.b. shankar v. amman steel corporation, tiruchirapalli, (supra), another
single judge of the madras high court also considered the scope of document furnished under
form no. 32 of the companies act and quashed the proceeding in exercise of power conferred
under section 482 of the code of criminal procedure.15. the contrary decisions about the scope of
form no. 32 appears in the case

Presumption as to documents produced as records of evidence  (Section -80).

      Whenever any document is produced before any Court, purporting to be a record or

memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial
proceeding or before any officer authorized by law to take such evidence or to be statement or
confession by any prisoner or accused person taken in accordance with law, and purporting to be
signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume -
that the document is genuine; that any statements as to the circumstances under which it was
taken, purporting to be made by the person signing it, are true, and that such evidence, statement
or confession was duly taken.

 Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents 

(Section -81) 

The Court shall presume the genuineness of every document purporting to be the London
Gazette or any Official Gazette, or the Government Gazette of any colony, dependency of
possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act
of Parliament of the United Kingdom printed by the Queen’s Printer and of every document
purporting to be a document directed by any law to be kept by any person, if such document is
kept substantially in the form required by law and is produced from proper custody.

~ Gazette - 'Official Gazette' includes a state gazette. Under this section, the genuineness of the
gazette must be presumed, though it is not formally tendered at the trial. It is enough, if the court
has the gazette before it. Notifications and orders published in the gazette need no proof, as the
court will take judicial notice of them under s 57 and presume their genuineness under this
section.

Gazetteers - Statements in gazetteers cannot be relied on as evidence of title, but they do provide
historical materials. Statements in them can be relied on as providing historical material, and the

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practice followed, eg, by a math and its head. Gazetteers can be consulted on matters of public
history.

Newspapers - Reports in newspapers are merely hearsay, hence inadmissible in evidence; no

presumption of their genuineness can be attached. Newspaper reports per se, not admissible in
evidence.

Under section 81, Official Gazettes, newspapers or journals and copies of the Acts of
Parliament are presumed to be genuine. Following documents are presumed to be genuine under
the section:

1. Every document which purports to be London Gazette or any Official Gazette, or the
Government Gazette of any colony, dependency or possession of the British Crown.

2. Every document which purports to be a newspaper or journal.

3. Every document that purports to be a copy of a private Act of Parliament of the United
Kingdom printed by Queen's printer.

4. Every document purporting to be a document directed by any law to be kept by any person, if
such document is kept substantially in the form required by law and is produced from proper
custody

d) Presumption as to Gazettes in electronic forms (Section - 81A)

The Court shall presume the genuineness of every electronic record purporting to be the Official
Gazette or purporting to be electronic record directed by any law to be kept by any person, if
such electronic record is kept substantially in the form required by law and is produced from
proper custody

~ Information Technology Act, 2000. - The court has to presume the genuineness of any
electronic record purporting to be the Official Gazette or purporting to be the electronic record
directed by law to be kept by a person. It is necessary that the electronic record is substantially
kept in accordance with the form required by the law and is produced from proper custody

e)  Presumption as to document admissible in England without proof of seal or signature

(Section - 82).

When any document is produced before any Court, purporting to be a document which, by the
law in force for the time being in England or Ireland, would be admissible in proof of any
particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or
signature authenticating it, or of the judicial or official character claimed by the person by whom
it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine,

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and that the person signing it held, at the time when he signed it, the judicial or official character
which he claims, and the document shall be admissible for the same purpose for which it would
be admissible in England or Ireland.

The following are some of the documents which in England can be proved by certified copies
and which are of like occurrence in Indian courts – birth, marriage or death register, and other
similar registers mentioned, certain documents relating to companies, copyright registers, orders
in lunacy, newspapers proprietors, registers, patent office register, registers and other documents
under the Merchant Shipping Act 1894, official books and registers may be proved either by
production of the originals or copies. In practice, they are now always proved by means of
examined or certified copies, unless the circumstances render it necessary that the court should
examine the original entry

Smt. Lila Kumari And Others vs Smt. Laxmi Devi

On 17.10.2003, when the instant appeal came up for consideration before the learned Single
Judge, learned counsel for the defendant-appellants raised the issue that the probate obtained by
the defendant-appellants from the High Court in England is conclusive between the parties as it
was a judgment in rem and that the same was admissible in view of the provisions of Sections 41
and 82 of the Indian Evidence Act, 1872 (for brevity, 'the Evidence Act') and, therefore, the Civil
Court could not go into the validity of the Will. It was further contended that if the plaintiff-
respondent wanted to challenge the validity of the Will, the same could be done only in a Court
in England. Reliance in that regard was placed on a Single Bench judgment of this Court
rendered in the case of Darshan Singh v. Kuldip Singh, AIR 1979 P&H 250.

f) Presumption as to Maps or Plans made by authority of Government ( Section - 83).

The maps and plans are also a recognized type of documentary evidence. Section 83 of the
Indian Evidence Act provides the various presumptions regarding maps and plans made by the
authorities of the government. According to this Section, the maps and plans are presumed to be
genuine and accurate if it is made by the authority of the Central or State government. 

Presumption as to maps or plans made by authority of Government The Court shall presume that
maps or plans purporting to be made by the authority of the Central Government or any State
Government were so made, and are accurate; but maps or plans made for the purposes of any
cause must be proved to be accurate. Maps or plans Maps or plans purporting to be made with
the authority of the Central or State Government to be accurate. Maps or plans made for the
purpose of any cause must, of course, be proved to be accurate. Comments:- Section 83 says that
the maps and plans made by Central Government or any State Government will be assumed

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accurate and will not require any evidence but any maps or plans made for any particular cause
or by any private individual will need to be proved before the court. The maps and plans
mentioned in the section 83 are described in Section 36 of Indian Evidence Act 1872 Section
36:- relevancy of statements to maps charts and plans Statements of facts in issue or relevant
facts, made in published maps or charts generally offered for public sale or in maps or plans
made under the authority of the central government or any state government as to matters usually
represented or stated in such maps, charts or plants are themselves relevant facts

Ram Kishore Sen v. Union of India, AIR 1966 SC 644 

The case pertains to the dispute between some residents (Ram Kishore Sen & Others) of part of
Barubari Union No. 12, about of transfer of half of the area of Barubari Union No. 12 to the then
Pakistan (now Bangladesh), as of Redcliffe Award, in view of the 'Indo-Pakistan Agreements'
entered into in 1956 between the Prime Ministers of India and Pakistan half of the area known as
Barubari Union No. 12, and a portion of Chilahati village admeasuring 512 acres were agreed to
be transferred by India to Pakistan.

The OA was originally dismissed by the Calcutta High Court with its decision on 17 November,
1964, and Appeal in the case also dismissed by the Supreme Court with its judgment on 11
August, 1965, as of claim treated as not established by the Applicant/ Appellant. The appeal was
filed with the plea of being in adverse possession of the disputed area by the Bengal State,
whereas the OA neither contained any such issue, nor the Government confirms the area to be of
adverse possession of by the Indian side.[3]

g) Presumption as to collections of laws and reports of decisions  (Section - 84) -

Presumptions are inferences which are drawn by the court with respect to the existence of certain
facts. When certain facts are presumed to be in existence the party in whose favor they are
presumed to exist need not discharge the burden of proof with respect to it. This is an exception
to the general rule that the party which alleges the existence of certain facts has the initial burden
of  The court shall presume the genuineness of every book purporting to be printed or published
under the authority of the government of any country and to contain any of the laws of that
country, and of every book purporting to contain reports of decisions of the courts of such
country. Collection of laws and reports proof but presumptions do away with this requirement.

The Court presumes the genuineness of every book purported to be printed or published under
the authority of the Government of any country, and which contains any of the laws of that
country. The same presumption is raised in reference to books published by the State which
contain reports of decided cases. Section 84 provides for this presumption.

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h) Presumption as to powers of attorney (Section 85) - 

     The Court shall presume that every document purporting to be a power-of-attorney, and to
have been executed before, and authenticated by, a Notary Public, or any Court, Judge,
Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so
executed and authenticated.
The Delhi High Court acted on this presumption and held that the power of attorney executed on
behalf of a bank attested by a notary public created a presumption that the power was validly
delegated and the executants were duly authorized to do so. The presumption created by the
section applies with equal force in reference to documents authenticated by notaries functioning
in other countries. The Supreme Court accepted a document which was authenticated before a
notary public of California, U.S.

Authentication - The authentication is not merely attestation, but something more: It means that
the person authenticating has assured himself of the identity of the person who has signed the
instrument as well as the fact of execution. It is for this reason that a power of attorney bearing
the authentication of a notary public or an authority mentioned in this section, is taken as
sufficient evidence of the execution of the instrument by the person who appears to be the
executants on the face of it

i) Presumption as to electronic agreements (Section 85A).

The Court shall presume that every electronic record purporting to be an agreement containing
the electronic signatuers of the parties was so concluded by affixing the electronic signature of
the parties.
Where an electronic record purports to be an electronic agreement made through digital
signatures, the Court has to presume that the agreement was concluded as it purports to be,
namely, by affixing the digital signatures of the parties.

j) Presumption as to electronic records and digital signatures (Section 85B). 

(1) In any proceedings involving a secure electronic record, the Court shall presume unless
contrary is proved, that the secure electronic record has not been altered since the specific point
of time to which the secure status relates.

(2) In any proceedings, involving secure digital signature, the Court shall presume unless the
contrary is proved that—

(a) the secure electronic signature is affixed by subscriber with the intention of signing or
approving the electronic record;

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(b) except in the case of a secure electronic record or a secure digital signature, nothing in this
section shall cerate any presumption, relating to authenticity and integrity of the electronic record
or any electronic signature.

Where a proceeding involves a secure electronic record, the court has to presume that the record
was not altered since the specific point of time to which the secure status related. The section
permits evidence to the contrary. Evidence may be produced in rebuttal of the presumption.
There is a similar presumption as to a secure digital signature. Where any proceeding involves a
secure digital signature, the Court has to make the following two presumptions:

(a) That the secure digital signature was affixed by the subscriber with the intention of signing or
approving the agreement;

(b) That the presumption will apply only to secure electronic record or secure digital signature
and that there is to be no presumption under the section relating to authenticity and integrity of
the electronic record or digital signature. There can be evidence to the contrary

k) Presumption as to Digital Signature Certificates (Section 85C)

   The Court shall presume, unless contrary is proved, that the information listed in an
Electronic Signature Certificate is correct, except for information specified as subscriber
information which has not been verified, if the certificate was accepted by the subscriber.

The court has to presume that the information listed in a digital certificate is correct if the
certificate was accepted by the subscriber. This presumption does not apply to information
specified as subscriber information which has not been verified.

 l)Presumption as to due execution etc., of documents not produced (Section 89) 

     The Court shall presume that every document, called for and not produced after notice to
produce, was attested, stamped and executed in the manner required by law.

MAY PRESSUME

The following sections of Evidence Act, 1872 provides that the courts may presume a fact either
regard as proved, unless and until it is disproved or may call for proof of it

86. Presumption as to certified copies of foreign judicial records

87. Presumption as to Books, Maps and Charts

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88. Presumption as to Telegraphic Messages

88A. Presumption as to electronic messages

90. Presumption as to documents thirty years old

90A. Presumption as to electronic records five years old

Presumption as to certified copies of foreign judicial records Section 86

Provides that the Court may presume that any document purported to be a certified copy of any
judicial record of any country not forming part of India or of Her Majesty's Dominions is
genuine and accurate, if the document purports to be certified in any manner which is certified
by any representative of the central govt in or for such country to be the manner commonly use
in that country for that certificate of copes of judicial records.

Here are some of the points of the High court / Supreme under thus section:

 Aforeign judgment is not admissible in evidence in the absence of the certificate

 In order to raise the presumption, admission of judgment in evidence does not become a
condition precendent .
 Certified copy of the a decree of a High court filed in a court beyond the jurisdiction of
the said High Court. Presumption of the genuineness is available in spite of the absence
of the certificate under Section 86

Presumption as to Books, Maps and Charts (Section 87)

The Court may presume that any book to which it may refer for information on matters of
public or general interest, and that any published map or chart, the statements of which are
relevant facts, and which is produced for its inspection, was written and published by the person,
and at the time and place, by whom or at which it purports to have been written or published.

Presumption as to Telegraphic Messages (Section 88) -

 The Court may presume that a message, forwarded from a telegraph office to the person to
whom such message purports to be addressed, corresponds with a message delivered for
transmission at the office from which the message purports to be sent; but the Court shall not
make any presumption as to the person by whom such message was delivered for transmission.

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Presumption as to electronic messages (Section 88A)

    The Court may presume that an electronic message, forwarded by the originator through an
electronic mail server to the addressee to whom the message purports to be addressed
corresponds with the message as fed into his computer for transmission; but the Court shall not
make any presumption as to the person by whom such message was sent. Explanation For the
purposes of this section, the expressions “addressee” and “originator” shall have the same
meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of
the Information Technology Act, 2000.

Presumption as to due execution etc., of documents not produced (Section 89) 

     The Court shall presume that every document, called for and not produced after notice to
produce, was attested, stamped and executed in the manner required by law.

Presumption as to documents thirty years old (Section 90) 

     Where any document, purporting or proved to be thirty years old, is produced from any
custody which the Court in the particular case considers proper, the Court may presume that the
signature and every other part of such document, which purports to be in the handwriting of any
particular person, is in that person’s handwriting, and, in the case of a document executed or
attested, that it was duly executed and attested by the persons by whom it purports to be executed
and attested. Explanation Documents are said to be in proper custody if they are in the place in
which, and under the care of the person with whom, they would naturally be; but no custody is
improper if it is proved to have had a legitimate origin, or if the circumstances of the particular
case are such as to render such an origin probable. This Explanation applies also to Section 81.

Illustrations

 (a) A has been in possession of landed property for a long time. He produces from his custody
deeds relating to the land showing his titles to it. The custody is proper.

(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is
in possession. The custody is proper.

(c) A, a connection of B, produces deeds relating to lands in B’s possession, which were
deposited with him by B for safe custody. The custody is proper.

The presumption discretionary - The power under Section 90 is only if discretionary, and not
compulsory. It depends upon the Court. It may presume the execution of a document under
Section 90 or may demand the proof of the documents filed.

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 In Kripal Singh v. Aas Kaur and others, the document was gift-cum-will. It was 30 years old
coming from custody of proper person. Same was registered. The court presumed its proper
execution.

Presumption as to electronic records five years old  (Section 90A) 

       Where any electronic record, purporting or proved to be five years old, is produced from any
custody which the Court in the particular case considers proper, the Court may presume that the
electronic signature which purports to be the electronic signature of any particular person was so
affixed by him or any person authorised by him in this behalf.

 Explanation Electronic records are said to be in proper custody if they are in the place in which,
and under the care of the person with whom, they naturally be; but no custody is improper if it is
proved to have had a legitimate origin, or the circumstances of the particular case are such as to
render such an origin probable.

Where an electronic record purports to be or is proved to be five years old and is produced from
any custody which the court considers proper in the particular case, the court may presume that
the electronic signature which purports to be the electronic signature of any person was so
affixed by him or by any person authorised by him in that behalf.

CONCLUSION:

Discretionary presumptions are those presumptions in which court will presume a fact to be
proved until it is disproved or may call proof upon it. In the case of such presumptions the court
has the choice to decide whether to raise the presumption or not.

Discretionary presumptions given under Section 86 to 88-A and Section 90-A are self
explanatory in nature. However with respect to the interpretation of Section 90 there is lot of
questions. First issue is on how the period of 30 years is calculated to find out if a document is
30 years old or not. According to the current position of law to find whether a document is thirty
years or not the period has to be calculated from the date of execution of the document and not
from the date which the document is filed in court.  Next there is the issue as to whether the mere
production of the document would enough to attract section 90. According to the present position
of law mere production is not enough the production has to be from proper custody. Proper
custody of a document means that the document is possession of such a person that it does not
bring about any suspicion fraud or doubt. Proper custody does not mean most proper place for

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the document to be deposited it just requires that there should be a sufficient explanation about
the origin of the document. Proper custody thus means the document should be in such a place or
with such a person where or in whose possession can be reasonably expected to be.  The third
issue is on whether section 90 is applicable to copies of document. The current position of law is
that Section 90 is applicable to only original documents and not to copies of documents.
However in copies of documents(whether certified copies or registered copies) which can be
admitted as secondary evidence under Section 65 which is over 30 years old and is produced
from proper custody only the signature which authenticates the document can be presumed to be
genuine and not the execution of the said document. Certified copies are admissible to prove the
contents of the original document if the original document is proved to be lost in proper custody
or it is in the possession of the adverse party. But these certified copies do not prove the
execution of the original documents only the contents of the same.  The next issue is on whether
documents with respect to which presumption under Section 90 can be raised should be signed.
The current position of law is that only the documents which are signed attract the presumption
under Section 90. If the document does not have a signature then Section 90 is not applicable.
Signature here includes thumb impressions but does not include seals.

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