“PRESUMPTIONS”

UNDER INDIAN EVIDENCE ACT, 1872

Project submitted to:

Dr. RAJEEV SHARMA

Project submitted by:

ANANYA SHIVANI
ROLL CODE – 26
YEAR & SEMESTER – 3rd Yr. 5th Sem.

FACULTY OF LAW
UNIVRSITY OF ALLAHABAD
 ‘Presumption’ Under Indian Evidence Act, 1872

ACKNOWLEDGEMENT

“IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER”

A project is a joint endeavour which is to be accomplished with utmost compassion,

diligence and with support of all. Gratitude is a noble response of one’s soul to kindness or
help generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.
This project report would not have been completed without combined effort of Dr. Rajeev
Sharma and other supporting staffs whose support and guidance was the driving force to
successfully complete this project. I express my heartfelt gratitude to him. Thanks are also
due to my parents, family, siblings, my dear friends and all those who helped me in this
report in any way. Last but not the least; I would like to express my sincere gratitude to
respected sir for providing me with such a golden opportunity to learn under his guidance.
Also this project was instrumental in understanding the concepts of Presumptions under
Indian Evidence Act 1872. It was truly an endeavour which enabled me to embark on a
journey which redefined my intelligentsia, induced my mind to discover the intricacies
involved in the statutes and provisions.
Moreover, thanks to all those who helped me in any way be it words or presence,
Encouragement or blessings...

Ananya Shivani
BA .LL.B(hons.)
5th Semester

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 ‘Presumption’ Under Indian Evidence Act, 1872

DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report entitled
“PRESUMPTIONS UNDER INDIAN EVIDENCE ACT , 1872 ” submitted to Dr. Rajeev
Sharma is an authentic record of my work carried out under his direction and guidance. I
have not submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Research Report.

(Signature of the Candidate)

ANANYA SHIVANI
FACULTY OF LAW
UNIVERSITY OF ALLAHABAD

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 ‘Presumption’ Under Indian Evidence Act, 1872

AIMS AND OBJECTIVES

AIM:
The aim of the research is to understand the concepts about the Indian evidence act to
presumptions.

OBJECTIVE:
❖ To know about the discretionary presumptions relating to documents.
❖ To learn about the presumptions as to Indian evidence act .
❖ To analysis of section 4 of the Indian evidence act .

HYPOTHESIS

HO:
Documentary evidence has not a great value in preceding of court.

HA :
Documentary evidence has a great value in preceding of court.

RESEARCH METHODOLOGY

Methodology” implies more than simply the methods the researcher used to collect data. It is

often necessary to include a consideration of the concepts and theories which underlie the

methods. The methodology opted for the study on the topic may be Doctrinal. 

Doctrinal research in law field indicates arranging, ordering and analysis of the legal

structure, legal frame work and case laws by extensive surveying of legal literature but

without any field work.

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 ‘Presumption’ Under Indian Evidence Act, 1872

CHAPTER – I

INTRODUCTION
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 proof but presumptions do away with this requirement.

Presumptions can be defined as an affirmative or negative inference drawn about the truth or
falsehood of a fact by using a process of probable reasoning from what is taken to be granted.
A presumption is said to operate where certain fact are taken to be in existence even there is
no complete proof.1 A presumption is a rule where if one fact which is known as the primary
fact is proved by a party then another fact which is known as the presumed fact is taken as
proved if there is no contrary evidence of the same. It is a standard practice where certain
facts are treated in a uniform manner with regard to their effect as proof of certain other facts.
It is an inference drawn from facts which are known and proved. Presumption is a rule which
is used by judges and courts to draw inference from a particular fact or evidence unless such
an inference is said to be disproved. 

Presumptions can be classified into certain categories: 

 Presumptions of fact.

 Presumptions of law.

 Mixed Presumptions.

Presumptions of fact are those inferences which are naturally and logically derived on the
basis of experience and observations in the course of nature or the constitution of the human
mind or springs out of human actions. These are also called as material or natural
presumptions. These presumptions are in general rebuttable presumptions. 

Presumptions of law are those inferences which are said to be established by law. It can be
subdivided into rebuttable presumptions of law and irrebuttable presumptions of law.
1
https://indiankanoon.org/doc/13065451/

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 ‘Presumption’ Under Indian Evidence Act, 1872

Rebuttable Presumptions of law are those presumptions of law which hold good until they are
disproved by evidence to the contrary. Irrebuttable Presumptions of Law are those
presumptions of law which are held to be conclusive in nature. They cannot be overturned by
any sort of contrary evidence however strong it is. 

Mixed Presumptions are certain inferences which can be considered as observations of law
due to their strength or importance. These are also known as presumptions of mixed law and
fact and presumptions of fact recognized by law. 

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 ‘Presumption’ Under Indian Evidence Act, 1872

CHAPTER – II

ANALYSIS OF SECTION 4 OF THE INDIAN EVIDENCE ACT

Section 4 of the Indian Evidence Act deals with three categories of presumptions

 Discretionary Presumptions

 Mandatory Presumptions

 Conclusive Proof 

The Sections of the Indian Evidence Act which deal with Discretionary Presumptions relating
to documents are sections 86, 87, 88, 90 and 90-A. These Presumptions are those in which
the words may presume are used in the sections and the words may presume is used signifies
that the courts of law have discretion to decide as to whether a presumption is allowed to be
raised or not. In the case of such presumptions the courts of law will presume that a fact is
proved unless and until it is said to be disproved before the court of law or it may call for
proof of a fact brought before it. The Sections of the Indian Evidence Act which deal with
Mandatory Presumptions are Section 79, 80, 80-A, 81, 82, 83 85 and 89. These Presumptions
are those in which the words shall presume is used. In case of such presumptions the courts of
law will presume that a fact before it is proved until and unless it is disproved. The words
shall presume signify that the courts have to mandatorily raise a presumption and such a
presumption which is raised shall be considered to be proved unless and until the
presumption is said to be disproved and there is no discretion left to the court therefore there
is no need for call of proof in this case. It is like command of the legislature to the court to
raise a presumption and the court has no choice but to do it. The similarity between
discretionary and mandatory presumptions is that both are rebuttable presumptions. 

Conclusive Proof is defined under Section 4 that one fact is said to be conclusive proof of
another fact when the court shall on the proof of a certain fact regard another fact to be
proved and the court shall not allow any evidence which shall to be given for the purpose of
disproving such a fact. Conclusive Proof is also known as Conclusive Evidence. It gives
certain facts an artificial probative effect by law and no evidence shall be allowed to be
produced which will combat that effect. It gives finality to the existence of a fact which is

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sought to be established. This generally occurs in cases where it is in the larger interest of
society or it is against the governmental policy. This is an irrebuttable presumption. 

The general rule about burden of proof is that it lies on the party who alleges the fact to prove
that the fact exists. But a party can take advantage of the presumptions which are in his favor.
If the prosecution can prove that the conditions of a presumption are fulfilled and such a
presumption is of rebuttable nature then the burden of prove to rebut it is always on the party
who wants to rebut it.2 

2
https://www.lawteacher.net/free-law-essays/contract-law/presumptions-as-to-indian-evidence-act-documents-
contract-law-essay.php#ftn10

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 ‘Presumption’ Under Indian Evidence Act, 1872

CHAPTER – III

DIFFERENCE BETWEEN PRESUMPTION OF FACTS AND

PRESUMPTION OF LAW

Presumption generally means a process of ascertaining few facts on the basis of possibility or
it is the consequence of some acts in general which strengthen the possibility and when such
possibility has great substantiate value then generally facts can be ascertained. A presumption
in law means inferences which are concluded by the court with respect to the existence of
certain facts. The inferences can either be affirmative or negative drawn from circumstance
by using a process of best probable reasoning of such circumstances. The basic rule of
presumption is when one fact of the case or circumstances are considered as primary facts
and if they are proving the other facts related to it, then the facts can be presumed as if they
are proved until disproved. Section 114 of Indian Evidence Act specifically deals with the
concept that ‘the court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of (a) natural events, (b) human conduct,
and (c) public and private business, in their relation to the facts of the particular case’. 

Topic Presumption of Facts Presumption of Law

When presumptions are When presumptions are acknowledged

established on the basis of facts without the help of proof in certain
Definition
or groups of facts or from the situations or circumstances where court
collection of facts. me presumes some facts itself.

Position of
Uncertain position. Certain and uniform position.
Presumption

Performance They are always rebuttable and They are conclusive presumption unless
can be challenged after proven with probative evidence.
establishing probative evidence.

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 ‘Presumption’ Under Indian Evidence Act, 1872

Court enjoys discretionary Court has no discretionary power, and

Discretionary
power, either to presume any they are bound to presume some facts as
Power of Court
facts or not. such facts are presumed itself by the law.

They are derived on the basis of

Judicial customs & practices, the law
Source of natural law, customary practices,
under the statues are the only sources of
Presumption and general mankind
presumption of law.
experiences.

Presumption of Foreign Judicial

Records, Presumptions of Presumption of Innocence, Presumption
Examples
Abetment as to Suicide by a of declared death in absentia etc.
Married Women etc.

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CHAPTER – IV

DIFFERENCE BETWEEN MAY PRESUME, SHALL PRESUME AND

CONCLUSIVE PROOF

May presume is a condition when the court enjoys its discretion power to presume any/
certain/ few facts and recognize it either proved or may ask for corroborative evidence to
confirm or reconfirm the presumption set by the court in its discretion. Section 4 of the Indian
Evidence Act provides that a fact or a group of facts may be regarded as proved, until and
unless they are disapproved. The concept is defined under Section 4 of this act that ‘May
Presume’  deals with rebuttable presumption and is not a branch of jurisprudence.3

Whereas, shall presume denotes a strong assertion or intention to determine any fact.Section

4 of Indian evidence Act explains the principle of ‘Shall Presume’ that the court does not
have any discretionary power in the course of presumption of ‘Shall Presume’, rather the
court has presumed facts or groups of facts and regard them as if they are proved until they
are disproved by the other party. Section 4 of the Indian Evidence Act explains that the
concept of ‘Shall Presume’ may also be called ‘Presumption of Law’ or ‘Artificial
Presumption’ or ‘Obligatory Presumption’ or ‘Rebuttable Presumption of Law’ and tells that
it is a branch of jurisprudence.4

While, Conclusive Presumptions/ Proofs, this can be considered as one of the strongest

presumptions a court may assume but at the same time the presumptions are not completely
based on logic rather court believes that such presumptions are for the welfare or upbringing
of the society. With regards to Conclusive proofs, the law has absolute power and shall not
allow any proofs contrary to the presumption which means if the facts presumed under
conclusive proofs cannot be challenged even if the presumption is challenged on the basis of
probative evidence. This is the strongest kind of all the existing presumptions whereas
Section 41, 112 and 113 of the Evidence Act and S. 82 of the Indian Penal Code are one of
the most important provisions related to the irrebuttable form of presumptions or Conclusive
Presumption.5

3
Section 4, Indian Evidence Act, 1872
4
Ibid
5
Ibid

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The general definition of Conclusive Proof is a condition when one fact is established, then
the other facts or conditions become conclusive proof of another as declared by this Act. The
Court in its consideration shall regard all other facts to be proved, only if one fact of the case
is proven without any reasonable doubt. And if the other facts are proved on the basis of
proving of one fact that the court shall not allow any evidence contrary to other facts which
are presumed as conclusive proofs.

Illustration- A and B married on June 1 and the husband left home to his work for 6 months
later he discovered that her wife is pregnant he divorced the wife and challenges that he is not
liable for paying damages either to his wife or to his illegitimate son. And also explains that
he never consumed his marriage as just after one day of marriage he left his home for his
work. But in this case, the court will conclusively presumed that the son born out of his wife
is legitimate because he was with his wife for at least 1 day and shall not allow any proof
contrary to the conclusive proof even if he provides probative evidence. 

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CHAPTER – V

CLASSIFICATION OF PRESUMPTION

It is pertinent to note that there two types of presumptions, presumption of law and
presumption of fact and it was further emphasized that where the relevant provision of the
Act or any law that the courts ‘may presume’ a fact a presumption of fact is created. This
chapter majorly focuses on presumptions of law and the types of law, some of which are,
presumption of marriage, presumption of legitimacy among others.

PRESUMPTION OF LAW

In presumptions of law the conclusions to be deduced from the given sets of facts are
prescribed or stipulated by law and must always be drawn as the inevitable consequence of
this facts. For example, if two persons are proved to be parties to a conveyance, then a
conclusion directed by law6 to be inferred from this established fact, unless the contrary is
proved, is that both of them are of full age at the time of conveyance. This conclusion is
therefore a presumption of law. It is not necessarily logically inferable from the proved fact
but the court is bound to arrive at it there from because the law has so enjoyed.

Presumptions of law can be further divided into irrebuttable and rebuttable presumptions. If a
presumption is an irrebuttable presumption of law, it means that if a certain fact is proved,
then the court must draw a certain conclusion from the true fact and such facts are conclusive,
incontroversible and unquestionable., while on the other hand, if a presumption is a rebuttable
presumption of law, it means that once certain given facts are approved, then the court is
obliged or mandated to presume the existence of other facts unless and until the contrary is
proved.

1. PRESUMPTION OF MARRIAGE

When it is proved that a man and woman went through an apparently regular ceremony of
marriage either under the act or customary law, there is the rebuttable presumption of validity

6
S.128 of Evidence Act.

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of the marriage. This is under the common law.7 This presumption was held in favour of a
validity of the marriage conducted in a private house (as against a registry or a court) not
withstanding the fact that there was no evidence that the required special licence was granted
for the celebration of the marriage. This presumption covers both the formal validity and
essential validity. Therefore, when there is evidence of the de-facto celebration of marriage,
the presumption is traced that the form of it took was valid and the essential requirements for
the celebration was met. Another aspect of this presumption is that where the man and the
woman are proved to be cohabiting, there is a presumption that they are living together as
husband and wife and not in a state of concubine until the contrary is proved. In Watson v
Tate8, it was proved in that case that a solicitor had lived with a woman as his wife for
nineteen years. The birth certificate of their children referred to a marriage in Victoria a
district whose law requires marriages to be registered. Although the marriage was not so
registered, it was held nonetheless that a presumption of valid marriage arose in this case
which could only be dispelled by cogent evidence.

2. PRESUMPTION OF LEGITIMACY

There is a rebuttable presumption of law that a child born during lawful wedlock is
legitimate.9 This is a corollary to the logical assumption that sexual intercourse took place
between the spouses. The presumption applies to either birth or conception during wedlock or
valid marriage. Thus, where a child is born to a married woman so soon after the marriage
has been dissolved, the presumption would apply where conception could have happed. It is
in this light that Section 148 of the Evidence Act as substituted by Section 115 (3) of the
Matrimonial Causes Act provides that: …when a person was born during the continuance of a valid
marriage between his mother any man, or within280 days after the dissolution, the mother remaining unmarried,
the court shall presume that the person in question is the legitimate son of that man.

The Supreme Court has held that this provision means no more than that: any one born by a
wife of a valid marriage or within 280 days after the dissolution of the marriage is the
legitimate child of the husband, unless it can be proved that the husband and the wife had no
access to each other or sexual intercourse could not have taken place. 10 The presumption of
legitimacy covers all children born during the continuance of a valid marriage or so soon
after the dissolution of the marriage.

7
Piers v Piers (1849) 9 ER 118.
8
(1937) 3 All ER 105.
9
Asdev K.V, The Law of Evidence in The Sudan (Butterworths, London 1981) 41.
10
Elumenze v Elumenze (1969) ALL NLR 311.

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3. PRESUMPTION OF DEATH

There is a rebuttable presumption to the effect that where a person has been continuously
absent without any explanation for a specific period of time, he can be presumed dead.
Section 144 (1) of the Evidence Act provides that: A person shown not to have been heard of, for
seven years by those, if any, who, if he had been alive, would naturally have heard of him, is presumed dead
unless the circumstances of the case are such as to account for his not being heard of without assuming his
death…

The presumption however depends upon the proof or admission of some basic facts, i.e. that
there are persons who would be likely to have heard of him over that period. Secondarily, that
those persons have not heard of him and that all due enquiries have been made. This
presumption is strictly limited to the death. It does not cover time of death. 11 It is also
provided by the Evidence Act12 that there is no presumption as to the age in which a person
died, who is shown to have been alive at a given time.

4. PRESUMPTION OF NEGLIGENCE
This is a common law presumption which arises mainly in action for negligence. Where a bag
of cocoa falls from a crane during a loading exercise from the warehouse to the ship, there is
presumption of negligence on the part of the driver of the carne if a person is injured in a road
ordinary being taken by members of the port community. The same conclusion will also arise
where a car hits the demarcation wall of a dual carriageway and collides with the vehicle
coming from the opposite direction. In these types of situation where the plaintiff has the
obligation to prove negligence, it may be cumbersome and onerous on him since the
defendant most often knows the actual cause of the accident. In order to ease the burden on
the plaintiff prove negligence on the part of the defendant, the law adopts common sense or
logical inference by presuming that the defendant might have been negligent since the thing
that caused the accident is under the exclusive control of him or his servant. This is usually
expressed in the Latin maxim, res ipsa loquitur, i.e. the thing speaks for itself. The full
import of this presumption is that once the primary facts of the occurrence have been accept,
it alters the burden of proof so that the defendant would need to show on the balance of
probabilities that he was not negligent. The defendant can do this by establishing that proper
care and attention has been exercised.13

11
S.144 (1) Evidence Act.
12
S.144 (3).
13
Thompson v Adefope (1969) 1 All NLR 322.

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A specific illustration of the application of res ipsa loquitur was laid down in the case of
Dickson Igbokwe v UCH Board of Management 14. The deceased, an inpatient in the
defendant’s hospital was discovered missing from her bed after she had been given some
sedatives. It was held that the presumption of negligence which arose was not rebutted by the
defendant. The maximum will not however apply where the proper inference is not one of
negligence, i.e. the plaintiff will fail in his claims if the totality of the whole evidence for both
parties is consistent with the presence as well as with absence of negligence.15

5. PRESUMPTION OF REGULARITY
Section 150 of the Evidence Act creates four different types of presumptions with regard to
the regularity and completed deed of titles. The first two are applied mainly to judicial and
official appointments and acts. These are presumed to be regular until the contrary is proved.
It embodies the common law principle expressed in the Latin maxim omnia praesumntur rite
esse acta, meaning that things are rightly and properly does. The last two relate to deeds
perfecting the title of a beneficial owner of property and to meetings and proceedings thereat
of an incorporated company as well as the appointment of directors. Section 150(1) provides
that: When any judicial or official act is shown to have been does in a manner substantially regular, it is
presumed that formal requisites for its validity were complied with.

This presumption is commonly found with respect to official acts and documents. In the case
of Ogiamen v Ogiamen,16 some customary court members were shown to have sat on one
occasion as a panel in respect of one suit and there was no indication as to which of them sat
in other occasions in respect of the suit.

6. PRESUMPTION OF UNDUE INFLUENCE

Generally, through the presumption omnia presumption rite esse act, the burden of proving
fraud is thrown upon the party alleging it. But where through the fiduciary or confidential
14
(1961) WNLR 173.
15
Lagos State Transport Service v Ibechim (1961) LLR 146.
16
(1967) NMLR 245.

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relationship between the parties, one party is able to exert under influence over the other, then
the onus is on the dominant party to show that in the transaction in questions the servient
party did not act because of the undue influence exercised on him by the former. The
relationships which have been held to come under this heading are: parent and child; fiancé
and fiancée; solicitor and client; doctor and patient; guardian and ward; spiritual adviser (or
clergyman) and parishioner17. It should be noted that the list is not exhaustive, but will
include any relationships where one party has exercised a predominant influence upon
another and benefits inter vivos have been received18.

17
Ashimowu Aduke v R.O. Oyenubi (1968) NML 477.
18
Allcard v Skinner (1887) 36 ChD 145.

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CONCLUSION

Presumption has been defined in the body of this work in section 4 (b) 137 the Act provides
that ‘whenever it is directed by this Act that the court shall presume a fact, it shall regard such
fact as proved unless and until it is disproved.’

In essence once a fact or facts in issue due presumed, no evidence is required of a fact which
is presumed in a party’s favour thus presumptions are therefore one of the ways in which
matter may be established otherwise than by evidence.

There have always been criticisms on this classification based on the ground that it is why
difficulty draws the line between both presumptions of law and that of fact. Unless there is
other evidence proving the intraday, the fact thus presumed is deemed to by fully established.
The chief effects of presumption of law are to prove negative asserters, which very way.
While on the other hand, a presumption of fact is the logical inference of the existence of
given facts from the proved existence of other facts. In most cases it exists as an example of
circumstantial evidence.

In all cases of presumptions of fact, the court is free to draw a particular inference from
proved facts. The court is not, however, obliged to draw the influence even though no further
evidence in rebuttal is offered by the party to be affected by the inference.

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BIBLIOGRAPHY

Websites And Aricles

 https://www.scconline.com/web-edition
 Enloe J. ‘Presumpion’,
<http://www. It’stheNameoftheGamecheckart%.pdf> Assessed on 23rd March 2011
 Guide to Defeating the Heeding Presumption in Failure-to-warn Cases; C.A. Daniel.
Defense Counsel Journal. <http://www.alternativestolawofevidence.com Tuesday,
April, 2003.
 Indiankanoon.com

BOOKS
 Aguda T.A, The law of Evidence, Fourth Edition. Spectrum Law Publishing 1999.
 Akintola A.L and Adedeji A.A, Nigerian Law of Evidence, A Book of Readings in
honour of Oluwarotimi O. Akeredolu SAN. University Press PLC 2006
 Alan T, Principles of Evidence, Cavendish Pub. Ltd, Second Edition (2001)
 Principles Of Law Of Evidence - Avtar Singh

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