LAW OF EVIDENCE

SEMESTER V

A RESEARCH PROJECT ON:

PRESUMPTION AS TO DOCUMENTS

SUBMITTED TO:

Adv. Usha Andewar

Assistant Professor, NMIMS Kirit P Mehta School of Law

SUBMITTED BY:

Name: Abhishek Pareek

Roll No: B042

BA LLB (Hons.) Division B

AIM OF THE STUDY:-

The purpose of the study is to examine the presumption of documents under the Indian Evidence
Act.

HYPOTHESIS:-

Documentary evidence does not have a great value in preceding of court.

OBJECTIVE: -

 To analyze about the discretionary presumptions relating to documents.

 To know about the presumptions as to Indian evidence act.
 To learn about section 4 of the Indian evidence act.

METHODOLOGY:-

The descriptive method was used in this research by the researcher. Analytical Research Simply
said, descriptive research focuses on identifying the study's subjects. A researcher can do a
descriptive research study in one of three approaches, which are as follows: An observational
study is one that involves watching and documenting the participants.

SOURCES OF STUDY:-

The research on the Indian Evidence Act and the presumption of documents uses a variety of
books, e-sources, and periodicals.

LIMITATION:-

 The research has been limited to only referring to online sources and books.
 The topic is very vast with limited time.

INTRODUCTION:-

Presumptions are conclusions that the court makes regarding the presence of particular facts. When
certain facts are assumed to exist, the party in whose favor they are assumed to exist is exempt
from having to prove those truths. This is an exception to the general rule that the burden of
evidence shifts on the party making the allegation that certain facts exist, but presumptions do
away with this necessity. A conclusion formed regarding the validity or falsity of a fact utilizing a
process of likely reasoning from what is taken for granted is known as a presumption. When certain
facts are assumed to exist despite the lack of conclusive evidence, a presumption is said to be in
operation. A presumption is a rule that states that if one truth, known as the main fact, is proven
by a party and there is no evidence to the contrary, another fact, known as the supposed fact, is
assumed to be established.1 It is common practice to treat certain facts consistently when
considering their value as evidence for other facts. It is an inference made based on known and
established facts. Judges and courts employ the presumption rule to deduce conclusions from
specific facts or evidence unless such conclusions are deemed to be false.

Section 3 of the Indian Evidence Act, 1872:-

Anything that is represented or described on a material using letters, figures, or marks—or more
than one of those and that is meant to be used or that may be used to record such matter is referred
to as a "document." Illustrations: A writing is a document, as are words that have been printed,
lithographed, or captured on camera. Documents include things like maps and plans, inscriptions
on stones or metal plates, and caricatures.

"Evidence" refers to and includes—

 Oral evidence refers to all remarks that witnesses are allowed to make in front of the court
or are required to make in regard to the facts being investigated;
 Documentary evidence refers to all created materials, including electronic records, for the
Court's review. "Proved”. A fact is said to be proven when, after examining the
considerations at hand, the Court either believes it to exist, or judges its existence to be so
probable that, given the particulars of the case, a wise man ought to act on the presumption
that it exists. "Disproved." – A fact is said to be disproved when, after analyzing the issues
at hand, the Court either thinks that it does not exist, or decides that it is so likely that it
does not that a wise man would be advised to proceed under the circumstances of the
specific case. Not established. When a fact cannot be proven or refuted, it is said to be
unproven. "India" refers to the area of India that include the State of Jammu & Kashmir.

1
ptions as to Indian Evidence Act Documents,LAW TEACHER,https://www.lawteacher.net/free-
law essays/contract-law/presumptions-as-to-indian-evidence-act-documents-contract-law-essay.php#ftn1
(accessed on 20th September 2019).
 The definitions outlined in the Information Technology Act of 2000 shall apply to the terms
"Certifying Authority," "electronic signature," "Electronic Signature Certificate,"
"electronic form," "electronic records," "information," "secure electronic record," "secure
digital signature," and "subscriber." Document refers to any information that is represented
or described on a material using letters, numbers, or other markings, or more than one of
those, with the intention of recording that information. Documents include writing,
printing, lithographs, photographs, maps, plans, inscriptions on stones or metal plates,
plaques, caricatures, and more. Another concept, "Party must present the finest evidence
in possession or power of the Party," must be kept in mind at this point. Primarily, the paper
itself serves as the finest kind of proof. When we refer to a document as being by itself, we
mean the original document, also known as Primary Evidence. According to the guidelines
of the Evidence Act, a document must be proven. It is insufficient to simply produce the
document and label it as an exhibit. Document execution must be established using
acceptable proof.2
Untested documents cannot be taken as proved or used as evidence in a case without formal
proof, and the admission of documents under Order 13 Rule 4 of the Civil Procedure Code
does not bind the parties. Any designation of a document as an exhibit, including the use
of alphabetic or numeric symbols, is only done for identifying purposes. A document's
endorsement of an exhibit number has no bearing on the document's evidence. A document
cannot be deemed to have been proven just because it has been designated as an exhibit;
nor may the marking of an exhibit number be delayed until the document has been held to
have been proved.
Sections 86, 87, 88, 90, and 90-A of the Indian Evidence Act include Discretionary
Presumptions pertaining to documents. These presumptions are those in which the words
"may presume" are used in the sections, and the usage of those terms denotes that the courts
of law have the authority to determine whether or not a presumption may be raised. In the
event of these presumptions, courts would assume that a truth is proven unless and until it
is said to be denied before the court of law or it may need proof of a fact placed before it.

2
A Term Paper on Indian Evidence Act, Presumption to Documents, available at http://www.acadpubl.eu/hub/
(accessed on 21st September 2019).
 The Indian Evidence Act's Sections 79, 80, 80-A, 81, 82, 83, 85, and 89 include
Nondiscretionary Presumptions. The phrase "must suppose" is used in relation to certain
presumptions. When there are such presumptions, unless and unless it is disproved, the
courts of law will assume a fact before it is proven. There is no discretion left to the court,
so there is no need for a call of proof in this case. The words "shall presume" mean that the
courts must mandatorily raise a presumption, and a presumption that is raised shall be
considered to be proved unless and until the presumption is said to be disproved. Document
refers to any information that is represented or described on a material using letters,
numbers, or other markings, or more than one of those, with the intention of recording that
information. Documents include writing, printing, lithographs, photographs, maps, plans,
inscriptions on stones or metal plates, plaques, caricatures, and more. When we refer to a
document as being by itself, we mean the original document, also known as Primary
Evidence. According to the guidelines of the Evidence Act, a document must be proven. It
is insufficient to simply produce the document and label it as an exhibit. Document
execution must be established using acceptable proof. Unproven documents cannot be
taken as proved or used as evidence in a case without formal proof, and the admission of
documents under Order 13 Rule 4 of the Civil Procedure Code does not bind the parties. A
document's endorsement of an exhibit number has no bearing on the document's evidence.
A document cannot be deemed to have been proven just because it has been designated as
an exhibit; nor may the marking of an exhibit number be delayed until the document has
been held to have been proved.
ANALYSIS OF SECTION 4 OF THE INDIAN EVIDENCE ACT:-
The Indian Evidence Act Section 4 addresses three types of presumptions:
 Discretionary Presumptions
 Non-Discretionary Presumptions
 Conclusive Proof
Sections 86, 87, 88, 90, and 90-A of the Indian Evidence Act regulate Discretionary
Presumptions relating to records. These presumptions are those where the phrase "may
assume" is used as part of the areas, and the phrase "may assume" implies that the official
courtrooms have the discretion to decide whether or not an assumption may be raised.
Because of these presumptions, official courtrooms will assume that a fact is demonstrated
 unless it is said to be refuted in front of the court, at which point it can require that proof
of a reality be shown. The Indian Evidence Act's Sections 79, 80, 80-A, 81, 82, 83, 85, and
89 govern Non-Discretionary Presumptions.
Shall Presume:-
These assumptions are the ones where the phrase "may presume" is used. If such
assumptions are made, the official courtrooms will presume that a reality exists before it is
proven or until it is refuted. The phrase "should presume" implies that the court must raise
an assumption, and that assumption may be taken to be shown until and until it is said to
be untrue. Since the court is left with no remaining tact in this circumstance, there is no
need to summon witnesses. It is similar to a request from a legislative body for the court to
make an assumption, and the court must decide how to proceed. Both optional and
obligatory assumptions are rebuttable, which is a similarity between them.3
Conclusive Proof:-
According to Section 4, when the court may order the verification of a specific certainty
with regard to another reality to be proved and the court should not tolerate any proof that
may be provided to refute such a reality, one reality is considered to be conclusive
confirmation of another reality. Conclusive Evidence is another name for Decisive Proof.
It grants some facts a fabricated probative effect under the law, and no evidence may be
produced to counteract that effect. It provides assurance that a reality exists that is supposed
to be established. Most often, this occurs when doing so goes against the administrative
method or is in the larger interest of society. This is an unchallengeable presumption. The
usual rule about the weight of the evidence is that it depends on the group that charges the
reality to prove that it is genuine. Anyhow, a group might take advantage of the
presumptions that are on his side. The burden of proof to disprove an assumption rests
always with the party seeking to do so if the indictment can show that the conditions of
such an assumption are rebuttable in nature.
May presume:
The Court may presume a reality whenever it is provided by this Act. It may either see such
actuality as proved, until and until it is invalidated, or it may request proof of it. A court
has the discretion to accept evidence of reality as true or to request supporting evidence

3
James Stephen Fitzjames, Law of evidence, (Little Brown, USA 1870).
 when necessary. In these situations, it is clear that a rigid run-the-show mentality is not
assumed. Juris et de jury is presumed. As long as the assumptions are related to actualities,
the court is free to make any assumption about reality. Until and unless it is refuted or
required, it may consider such fact to have been proven. The refinement between two
groups of assumptions ceases and the truth of the matter is accepted, unless and until it is
invalidated, in the case that the court has the option to elevate the assumption and does so.
It is possible for a marriage to continue indefinitely on a certain day, either by accepting as
evidence its continuation on a subsequent date until and until it should be dissolved, or by
requesting confirmation of it. It may take such truth to have been proven up until and unless
it is necessary to be challenged or required. 4
A. CASE LAWS:
 Kashibai Martand vs Vinayak Ganesh And Ors.on 22 February, 1955

This is a claim made on behalf of the aggrieved party, whose claim to recover the
lawsuit contract has been rejected by both lower courts. The claim was denied because
the injured party failed to provide evidence of the execution of the mortgage deed.
Vinayak, the mortgagee, hugged Ganesh. Ganesh passed away on July 4, 1934.
Vinayak is his child and the first respondent in this lawsuit. On August 22, 1935,
Vinayak sold Dhanraj Hajarimal the right, title, and passion that belonged to him. On
December 23, 1935, the buyer sold the property to Nathmal Rajmal gracious. It seems
that Vinayak recorded suit No. 214 of 1939 in order to verify the transaction deed he
had signed for Dhanraj on August 22, 1935. On the condition that he pay Rs. 15,000 in
the manner prescribed by the decision, Vinayak was declared qualified for ownership
of the property now the subject of the lawsuit as well as other properties. On 29-4-1943,
Defendant No. 1 sold Nathmal Rajmal his right, title, and interest in this property. It
should be obvious that Nathmal had doubts regarding the validity of his position in
light of the ruling that was rendered in favour of petitioner No. 1 and against his
business partner Dhanraj Hajarimal. At a bartering transaction performed in response
to a request made on the Original Side of this Court on 27-8-1943, respondent No. 1's
right, title, and zeal were up for negotiation. At this exchange, Govind Palekar was the

4
The Indian evidence act (Amendment) Bill, Law commission of India,2013.
 bartering buyer. In turn, Govind Palekar sought to polish his reputation by obtaining a
document of release from Nathmal on November 27, 1943. On 27-9-1944, Govind
Palekar passed away; the current respondents Nos. 2 through 6 are his beneficiaries and
legitimate delegates. In my opinion, the injured party has proven that the record was
properly completed in the manner required by law by the combined action of these two
presumptions.

DISCRETIONARY PRESUMPTION RELATED TO DOCUMENTS:-

” Presumptions that are discretionary are those in which the decision of whether to raise the
assumption or not rests with the court. The configurations that are implied by the language "may
assume" are only suggestions. The Indian Evidence Act's Sections 86, 87, 88, 90, and 90- An
provide the optional presumptions identifying with documents. The rule is outlined in Section 86,
which states that if the document is properly guaranteed in accordance with the standards used in
that country for confirming copies of legal records, the court may make an assumption regarding
the validity and accuracy of the confirmed duplicate of a legal record of any foreign country. 5This
segment's underlying assumption is tolerant and fundamental in nature, so it should be accepted.
However, the court retains the discretion to determine whether or not the presumption should be
challenged. An outside judgment is not admissible as evidence in court if there is no endorsement
under this section. This does not, however, mean that other forms of verification are invalid. It is
not necessary for the remote judgment to have simply been accepted as support in order to give
credence to this premise. 6The Section 87 presumption is not based on the accuracy or correctness
of the facts stated in the book, guide, or graph, but rather on the production date, location, and time
of the document. Although the accuracy of the information in the manual, book, or outline is
debatable in the absence of contrary evidence, it is nonetheless deemed to be accurate. A guide's
or an outline's data source will determine how accurate the info is. The court can make references
to any production as long as it is relevant to the case that was brought before it; the age of the
distribution is also not a requirement. The assumption under Section 88 is based on the requirement
that authority demonstrations be carried out in a uniform manner. In this area, the court accepts

5
Indian Evidence, Presumption as to Documents, ADVOCATE KHOJ,
http://www.advocatekhoj.com/library/bareacts/indianevidence/
6
Himani Kishorkini, Presumption as to Documents, http://www.legalservicesindia.c o m/article/532/Presumpti o
n- as-d o cuments (23rd September 2019 3:09 pm).
rumors as justification for the nature of the message that was sent. The requirement under this
section that no inferences about the sender of the communication may be drawn with the intention
of transmission is necessary and should essentially be agreed upon. This presumption only holds
true if the receiver has received the message; otherwise, the message isn't considered to have been
shown. Radio communications are likewise subject to this assumption15. The first wire is the shape
that the message sender provides to the mail station, not the frame that the mail station provides to
the receiver. Before a duplicate can be admitted as supplemental evidence under the careful eye of
the court in this section, either the first duplicate must be produced by a postal station official
under the watching eye of the court or certification of its destruction must be supplied. According
to Section 88, the only assumption is that the message received by the recipient matches to the
message sent to the broadcast office for transmission. There is no assumption made about the
person who sent the said message for transmission. However, there isn't any immediate or other
than accidental proof linking the message's beginning to it. The communication's content, when
viewed in the context of the chain of correspondence, serves as confirmation of the origin of the
message. Segment 88-An, which regulates the transmission of electronic messages, is similar to
Section 88 in structure and appears to be an extension of that section. In accordance with this
section, the court may assume that an electronic message sent by the sender through an email
server to the recipient, to whom the message is intended to be addressed, is related to the message
as it was fed into his computer for transmission. However, the court should not make any
assumptions about the identity of the sender. By looking at Clauses (b) and (za) of Subsection (1)
of Section 2 of the Information Technology Act of 2000, it is possible to characterize the terms
"receiver" and "originator" given in this area. Area 90 deals with the presumption associated with
outdated reports or documents older than 30 years. The principle of accommodation and necessity
is the foundation of Section 90. The main objective of this section is to lessen any difficulties
encountered by those who must prove their case using the execution, handwriting, and
confirmation of previous reports. According to this clause, the court may sway the following
presumptions regarding historical records: a) the signature and all elements of this man's
calligraphy; and b) that the report was duly written and confirmed by the person it should have
been executed and gave witness to. The supposition made in this section has no influence
whatsoever on other aspects of the document, such as its authenticity or content. Every archive
that falls under the term provided in Section 3 of the Indian Evidence Act is subject to the
presumption in this area. It applies to public and private archives, testamentary reports, and books
of record. This presumption doesn't really matter for records that aren't known. ”

CONCLUSION:-

” Documents are said to be in appropriate guardianship if they are kept in the location and care of
the person with whom they would ordinarily be. However, no authority is ill-advised if it can be
proven that it has a genuine origin, or if the circumstances of the particular case make such a
birthplace plausible. The nature of the optional assumptions provided under Sections 86 to 88-A
and Section 90-A is quite clear. According to the current legal framework, creation from
insignificant power is insufficient; it must come from a legitimate source. In order to avoid any
question, deception, or uncertainty, proper maintenance of a report means that the archive is owned
by such a guy. Legitimate care just requires that there be a sufficient explanation of the report's
beginning point. It does not entail that the archive should be placed in the most appropriate
location. Accordingly, legal guardianship means the report should be in a location or with a person
where or whose ownership may be foreseen as being there. The current legal view is that only
unique records are covered by Section 90, not duplicate archives.7

Venkatachalliah, M.N. (J) stated in State of U.P. vs. Krishna Gopal and Anr. 29 that "Doubts would
be fair provided they are free from a seat for abstract speculation. Truth is the only favourite that
law can afford. There cannot be an excessively emotional response for there to be reasonable
doubt. However, only the mark that authenticates the report can be assumed to be genuine and not
the execution of the said archive in duplicates of documents (whether guaranteed duplicates or
enlisted duplicates) which can be conceded as auxiliary confirmation under Section 65 and which
is older than 30 years and is created from legitimate guardianship. If the original report turns out
to be missing from the proper authority or is in the possession of an adversarial party, ensured
copies are acceptable to show the content of the original archive. However, these authentic copies
only show the content of the original records, not their functionality. Currently, only archives that
are indicated draw in the assumption under Section 90, according to the law. In the unlikely event

7
Parkash Chandand Ors v Hans Raj, AIR 1993 SC 214. 23Shantanu Chakrat, Presumption in Evidence Act,
http://www.shareyouressays.com/knowledge/section-4-of the-indian-evidence-act-1872
that the report is unmarked, Section 90 isn't relevant. Here, Mark includes thumbprints but doesn't
include seals. ”

BIBLIOGRAPHY:-

BOOKS:

 John Banville, The Book of evidence, Published by Universal law on 2006,

England. SaiRamaniGarimella, Private International Law in India, Published by
Kluwer International Law on 2010, New Delhi.
 James Stephen Fitzjames, Law of evidence, Published by Little Brown on 1870,
USA.
 Kindersley J., A Manual Law of Evidence, Published by CatherineLintot on 1791,
UK.
 Shantanu Chakrat, Indian evidence Act, Published by Higginbotham on 1872, in
India.

JOURNALS:

 The Indian evidence act (Amendment) Bill 2013, Law commission of India.
 Presumption as to Indian evidence Act documents by Harvard University.
 Documentary evidence and oral evidence byM.Monir.
 Report of law commission of Indian in Indian evidence Act in 1872 by Bimal N Patel.
 Summary of Indian evidence act in 1872 by Dr. Girijesh Shukla. International Journal of
Pureand Applied Mathematics Special Issue 57
 Importance features of the Indian evidence act by Alcuin lawn. E- SOURCES:
 http://www.advocatekhoj.com/library/bareacts/indianevidence/
http://www.legalservicesindia.com/article/532/Presumption-as-documents.
https://www.jstor.org/stable/pdf/1321688.
 http://ncw.nic.in/acts/THEINDIANEVIDENCEACT1872.
http://www.shareyouressays.com/knowledge/section-4-of-the-indian-evidence-act1872/