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PROJECT

LAW OF EVIDENCE II (2019 – 2020)

TOPIC –PRESUMPTION AS TO DOCUMENTS.

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AIM OF THE STUDY

The aim of the study is used to study the Indian evidence act with respect to presumption to
documents.

HYPOTHESIS

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

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 .

REVIEW OF LITERATURE

Where a document is required by law to be stamped at the time when it is received by the
holder, and the document is produced in Court duly stamped, the presumption is that it was
duly stamped when received, and the onus is on the other (Author : john Banville , 2006)The
peculiar effect of a presumption "of law" (Dr.Lakshmi T and Rajeshkumar S 2018)is merely
to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence
to the contrary from the opponent.3 Presumption are scattered under different places of the
Indian Evidence Act. It has been defined under 'Section 4' of the said Act.4(Author:
SaiRamani Garimella , 2010) notary's certificate of execution or authentication of a document
in India is not by itself evidence of such execution or authentication. Such document will
have to be proved like any ordinary document. (Trishala A , Lakshmi T and Rajeshkumar
S,“2018 )But observations in some cases suggest a presumption of due execution and
authentication, that is, the fact that the(Author : Stephen Fitzjames James ,1870)This
authority, however, lays down that when a notice is sent by post and evidence is tendered that
the notice is so sent, a presumption arises that the letter reaches its .The first presumption
arises by posting of the letter in the ordinary course without registration under Section 114(f)
of the Evidence Act(Author: Shantanu Chakratu, 1872)presumptions of law, strong or violent

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presumptions of fact, as well as those arising from evidence, direct or presumptive, which
shift the burden of proof to the other party."The terms "presumptions of law" and
"presumptions of fact" are nowhere mentioned or defined by the Indian Evidence Act;
(Author :J.Kindersley ,1791).

METHODOLOGY

In this research the researcher used the descriptive method. Descriptive Research More
simply put, descriptive research is all about describing people who take part in the study.
There are three ways a researcher can go about doing a descriptive research project, and they
are: Observational, defined as a method of viewing and recording the participants.

SOURCES OF STUDY

Various books, e-sources and journals are used for the study related to Indian evidence act to
presumption to documents.

LIMITATION

1. The research has been limited to only referring to online sources and books.

2. The topic is very vast with limited time.

CHAPTERIZATION

Chapter I is a general introduction to the topic. Chapter II is an analysis of section 4 of the

Indian Evidence Act. Chapter III discusses discretionary presumption relating to documents.
Chapter IV concludes.

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TABLE OF CONTENTS

I. INTRODUCTION..............................................................................................................6

II. ANALYSIS OF SECTION 4 OF THE INDIAN EVIDENCE ACT.................................8

A. CASE LAWS:...........................................................................................................11

1. Kashibai Martand vs Vinayak Ganesh And Ors.on 22 February, 1955................11

2. Sri S Prakash vs Sri Jambu Kumar Muthaon 13 June, 2017.................................12

III. DISCRETIONARY PRESUMPTION RELATING TO DOCUMENTS.....................13

A. THE PRESUMPTION UNDER SECTION 90 TO BE APPLICABLE THE

FOLLOWING CONDITIONS HAVE TO BE FULFILLED:.............................................15

B. CASE LAWS:...........................................................................................................16

1. Prakash Chand and Ors. vs Hans Raj 24 sept 1993.............................................16

2. D. Ramanatha Gupta vs S. Razaack on 16 February, 1982...................................18

IV. CONCLUSION.............................................................................................................19

V. BIBLIOGRAPHY............................................................................................................21

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I. INTRODUCTION
Presumptions are inferences which are drawn by the c ourt 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 disproved2.

Section 3 of the Indian Evidence Act, 1872:

“Document”  means any matter expressed or described upon any substance by means of

letters, figures or marks, or by more than one of those means, intended to be used, or which
may be used, for the purpose of recording that matter. "Illustrations: A writing  is a document;
Words printed, lithographed or photographed are documents; A map or plan is a document;
An inscription on a metal plate or stone is a document; A caricature is a document.
“Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry, such statements are called oral evidence;

(2)  all documents including electronic records produced for the inspection of the Court], such
documents are called documentary evidence. “Proved” .A fact is said to be proved when, after

1
Presumptions 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).
2
A Term Paper on Indian Evidence Act, Presumption to Documents, available at http://www.acadpubl.eu/hub/
(accessed on 21st September 2019).

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considering the matters before it, the Court either believes it to exist, or considers its existence
so probable that a prudent man ought, under the circumstances of the particular case, to act
upon the supposition that it exists. “Disproved”. — A fact is said t o be disproved when, after
considering the matters before it, the Court either believes that it does not exist, or considers
its non-existence so probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it does not exist. “Not proved”. A fact is said
not to be proved when it is neither proved nor disproved.  [“India ”. —“ India ” means the
territory of India excluding the State of Jammuand Kashmir .]  [the expressions “Certifying
Authority”, [electronic signature], [Electronic Signature Certificate], “electronic form”,
“electronic records”, “information”, “secure electronic record”, “secure digital signature”and
“subscriber” shall have the meanings respectively assigned to them in the Information
Technology Act, 2000.

Document means any matter expressed or described upon any substance by-means of letters,
figures or marks, or by more than one of those-means intended to be used, or which may be
used, for the purpose of recording that matter. Writing, printing, lithograph, photograph, map,
a plan, an inscription on a metal plate or a stone, a plaque, a caricature etc. are d ocuments. At
this stage we must bear in mind an other principle i.e. “Party must produce the best evidence
in possession or power of the party”. Basically, the best evidence is primary evidence i.e. the
document itself. When we say document itself, it envisages original document which is called
Primary Evidence. Document is required to be proved in accordance with the provisions of the
Evidence Act. Mere production and marking of the document as an exhibit is not enough.
Execution of documents is to be proved by admissible evidence.

The admission of documents under Order 13 Rule 4 Civil Procedure Code does not bind the
parties and unproved documents cannot be regarded as proved nor do they become evidence in
the case without formal proof. The marking of a document as an exhibit, be it in any manner
whatsoever either by use of alphabets or by use of numbers, is only for the purpose of
identification. Endorsement of an exhibit number on a document has no relation with its proof.
Neither the marking of an exhibit number can be p ostponed till the document has been held
proved; nor can the document be held to have been proved merely because it has been marked
as an exhibit.

The Sections of the Indian Evidence Act which deal with Discreti onary Presumptions relating
to documents are sections 86, 87, 88, 90and 90-A. These Presumptions are those in which the

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words may presume are used in the secti ons 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 pr oved
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 Non-
Discretionary Presumptions are Section 79, 80, 80-A, 81, 82, 83 85and 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 bef ore 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. Document means any matter expressed
or described upon any substance by-means of letters, figures or marks, or by more than one of
those-means intended to be used, or which may be used, for the purpose of recording that
matter. Writing, printing, lithograph, photograph, map, a plan, an inscripti on on a metal plate
or a stone, a plaque, a caricature etc. are documents. When we say document itself, it
envisages original document which is called Primary Evidence. D ocument is required to be
proved in accordance with the provisions of the Evidence Act. Mere production and marking
of the document as an exhibit is not enough. Execution of documents is to be proved by
admissible evidence. The admission of documents under Order 13 Rule 4 Civil Procedure
Code does not bind the parties and unproved documents cannot be regarded as proved nor do
they become evidence in the case without formal proof. Endorsement of an exhibit number on
a document has no relation with its proof. Neither the marking of an exhibit number can be
postponed till the document has been held proved; nor can the document be held to have been
proved merely because it has been marked as an exhibit.

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 ❖ Non-Discretionary Presumptions ❖ Conclusive Proof

The Sections of the Indian Evidence Act which manage Discreti onary Presumptions
identifying with records are segments 86, 87, 88, 90and 90-A. These Presumptions are those
in which the words may assume are utilized as a part of the areas and the words may assume

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is utilized implies that the official courtrooms have prudence to choose with respect to whether
an assumption is permitted to be raised or not. On account of such assumptions the official
courtrooms will assume that a reality is dem onstrated unless and until the point when it is said
to be discredited under the watchful eye of the courtroom or it might call for verification of a
reality brought before.3

The Sections of the Indian Evidence Act which manage Non- Discretionary Presumptions are
Section 79, 80, 80-A, 81, 82, 83 85and 89.

Shall Presume These Presumptions are those in which the words might assume is utilized. In
the event of such assumptions the official courtrooms will assume that a reality before it is
demonstrated until and unless it is negated. The words should assume connote that the courts
need to obligatorily raise an assumption and such an assumption which is raised might be
thought to be demonstrated unless and until the point when the assumption is said to be
negated and there is no tact left to the court hence there is no requirement for call of evidence
for this situation.4 It resembles order of the lawmaking body to the court to raise an assumption
and the court must choose the option to do it. The similitude amongst optional and required
assumptions is that both are rebuttable assumptions.

Conclusive Proof is characterized under Section 4 that one reality is said to be decisive
confirmation of another reality when the court might on the verification of a specific certainty
respect another reality to be demonstrated and the court should not permit any proof which
might to be given to disprove such a reality. Decisive Proof is otherwise called Conclusive
Evidence. It gives certain actualities a manufactured probative impact by law and no proof
might be permitted to be created which will battle that impact It offers certainty to the
presence of a reality which is looked to be established.5 This for the most part happens in
situations where it is in the bigger enthusiasm of society or it is against the administrative
approach. This is an irrebuttable assumption. The general govern about weight of evidence is
that it lies on the gathering who charges the reality to demonstrate that the reality exists. In
any case, a gathering can exploit the assumptions which are to support him. In the event that
the indictment can demonstrate that the states of an assumption are such an assumption is of
rebuttable nature then the weight of demonstrate to refute it is dependably on the gathering
who needs to disprove it.

3
James Stephen Fitzjames, Law of evidence, (Little Brown, USA 1870).
4
The Indian evidence act (Amendment) Bill, Law commission of India,2013.
5
Id at 5.

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May presume: At whatever point it is given by this Act the Court may assume a reality, it
might either see such actuality as demonstrated, unless and until the point that it is
invalidated, or may call for confirmation of it. A court has attentiveness to assume a reality as
demonstrated, or to call for corroborative proof as the conditions require. In such cases the
assumption is definitely not a rigid run the show. The presumption is juris et de jury. The
court is allowed to assume any reality or not as the assumptions are about the subject of
actualities. It might view such actuality as dem onstrated, unless and until the point when it is
negated or may require its confirmation. In the event that for a situation the court has a choice
to raise the assumption and raises the assumption, the refinement between two classes of
assumptions stops and the truth of the matter is assumed, unless and until the point that it is
invalidated.6 It is available to the endless supply of a marriage on a specific date, either to
view as demonstrated the subsistence of the marriage on a consequent date unless and until the
point when it ought to be invalidated or else to call for confirmation of it. For instance, Under
Section 90 of the Evidence Act when an archive of thirty years of age is created under the
steady gaze of the court, it might be assumed that the report was marked and composed by a
man by whom it was attempted to have been composed and marked. So also, Section 88 of this
Act manages assumption (may assume in nature, for example, to telegram. Shall presume: At
whatever point it is coordinated by this Act the Court should assume a reality, it might see
such certainty as demonstrated, unless and until the point that it is negated. The court will
undoubtedly assume a reality as demonstrated. The articulation "might assume" is to be
comprehended as in fear i.e. having some import of compulsion. For case Under section 89 of
the Evidence Act "the court might assume that each report, called for and not delivered after
notice to create validated, stamped and executed in the way required by law."7 Conclusive
proof : When one certainty is pronounced by this Act to be convincing confirmation of
another, the Court should, on verification of the one actuality, view alternate as demonstrated,
and might not enable proof to be given to disprove it. At the point when a reality is a 'decisive
confirmation' of another reality the court has no caution to discredit it. It is irrebuttable
assumption and the court should not enable confirmation to be given to disprove it. "Decisive
confirmation' gives a simulated probative impact by the law to specific actualities. No
confirmation is permitted to be delivered with a view t o fighting that impact. In this sense it is

6
Indian Evidence, Presumption as to Documents, ADVOCATE KHOJ,
http://www.advocatekhoj.com/library/bareacts/indianevidence/
7
Himani Kishorkini, Presumption as to Documents,http://www.legalservicesindia.com/article/532/Presumption-
as-documents (23rd September 2019 3:09 pm).

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unquestionable assumption.8 "Convincing verification: is likewise inside the domain of the

Evidence Act. Where a statute influences certain realities as last and indisputable, to
confirmation to discredit such actualities isn't to be permitted. This is the most grounded of all
assumptions. At the point when any individual signs a rep ort is assumed that he has perused
the archive9 legitimately and comprehended it and just them he has joined his mark
consequently, generally no mark on a record can ever be acknowledged. "Specifically,
representative, seeing cautious individuals (since their cash is included) w ould have
commonly perused and comprehended an archive before marking it. Thus the assumpti on
would be considerably more abnormal for their situation." For example: Birth amid marriage,
a last judgment of the court, or a degree presented by the University.

A. CASE LAWS:

1. Kashibai Martand vs Vinayak Ganesh And Ors.on 22 February, 1955

This is an interest by the offended party whose case to reclaim the suit contract has been
expelled by both the Courts beneath. The claim has been rejected on the ground that the
execution of the home loan deed isn't demonstrated by the offended party. The mortgagee
Vinayak embraced Ganesh. Ganesh kicked the bucket on 7-4-1934. Vinayak is his child; he is
respondent No. 1 to the present suit. Vinayak sold the right, title and enthusiasm vesting in
him to Dhanraj Hajarimal on 22-8-1935. The buyer in his turn sold the property to Nathmal
Rajmal gracious 23-12-1935. It gives the idea that Vinayak tested the deal deed executed by
him for Dhanraj on 22-8-1935, by recording suit No. 214 of 1939. This suit was announced
and Vinayak was held qualified for the ownership of the property presently in suit and
different properties on condition that he paid Rs.15,000 in the way end orsed by the decree.
Defendant No. 1 at that point sold his right, title and enthusiasm for this property to Nathmal
Rajmal on 29-4-1943. It ought to be seen that Nathmal felt uneasy ab out the legitimacy of his
title in perspective of the declaration which was passed for litigant No. 1and against his
merchant Dhanraj Hajarimal. right, title and enthusiasm of respondent No. 1 was put to deal at
a bartering deal held under a request passed on the Original Side of this Court on 27-8-1943.
Govind Palekar was the bartering buyer at this deal. Govind Palekar, in his turn, looked to
finish his title and leave no imperfection in it by acquiring a deed of discharge from Nathmal
on 27-11-1943. Govind Palekar passed on 27-9-1944,and the present respondents Nos. 2 to 6
are his beneficiaries and lawful delegates. By the joined activity of those two presumptions the

8
 J Thayer, The Burden of Proof, HARVARD LAW REVIEW 45 (1890).
9
J. Kindersley, A Manual Law of Evidence, CATHERINE LINTOT, UK, 1791.

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offended party has, in my judgment, demonstrated that the record was appropriately executed
in the way required by law.10

2. Sri S Prakash vs Sri Jambu Kumar Muthaon 13 June, 2017

The instance of the offended party to sum things up is as per the following: The whole 'A'
timetable property initially had a place with one Nanjunde Gowda. Offended party's dad
B.S.Chaganmal obtained the said property under the enlisted deal deed dated 23.06.1949.
From that point forward offended party and father are/were under lock and key and satisfaction
in the said property. In 1994 the respondents with no privilege or enthusiasm over the suit
plan property attempted to meddle with the offended party's ownership and delight in the
same. In this manner he recorded O.S. No.235/1994. Pending that suit, in February 1996 the
respondents trespassed into the 'B' plan property. In this way offended parties documented
O.S.No.41/1996 in presentation and order. Plaint in O.S. No.41/1996 was returned RFA NOS
806/2000 C/W 296/2011 under Section 80 C.P.C. Exploiting that in April 1996 the litigants
set up development on plaint 'B' plan property. Along these lines the suit. The litigants
documented their composed explanation and challenged the suit. The significance of the
composed articulation is as follows:11

The showcase estimation of the suit plan property is more than Rs.12 Lakhs. The suit isn't
appropriately esteemed and Court expense paid in adequate. The Government gained
Sy.No.206 alongside sy.No.196, 203, 204/1, 204/2, 204/3and 205 of Malur Village under
Section 8 of the land procurement Act for open reason specifically for development Municipal
High School and inns. After such securing Municipal High Sch ool was developed in 1956.
Therefore under the blessing deed dated 12.05.1976 Municipality gave over the Municipal
High School alongside the properties including building and soon., to the Government. From
that point forward the litigant is in control of RFA NOS 806/2000 C/W 296/2011 11 secti ons
of land 21 juntas of land which incorporates suit property. Neither the offended party nor his
precursors have any privilege in the suit property and suit is documented just to knock off the
Government property.12 The extra school building is built on the suit property by burning
through Rs.8 Lakhs. The respondents have built stone piece around secondary school to keep
up the protection. The suit is hit by Secti on 80 C.P.C. The judgment and pronouncement in
O.S.No.125/96 go by the Addl. Common Judge (Sr.Dvn.)and CJM, Kolar is thusly affirmed.

10
Kashibai Martand vs Vinayak Ganesh And Ors., (1955) 57 BOMLR 918.
11
Sri S Prakash vs Sri Jambu Kumar MuthaAIR 2017 CLR 218.
12
Ibid.

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The litigants are therefore coordinated to handover the empty ownership of the suit plan "B"
property inside 60 days from the date of this Judgment.

III. DISCRETIONARY PRESUMPTION RELATING TO DOCUMENTS

Discretionary presumptions are those presumptions where the watchfulness is left to the court
regardless of whether to raise the assumption. The arrangements in which the words "may
assume" are utilized are optional assumptions. The optional assumptions identifying with
records are given under Sections 86, 87, 88, 90and 90-An of the Indian Evidence Act.
Segment 86 sets out the rule that the court may make an assumption identifying with the
validity and exactness of a confirmed duplicate of a legal record of any outside nation if the
said report is appropriately guaranteed as per the principles which are utilized as a part of that
nation for affirming duplicates of legal records.13 The assumption under this segment is
tolerant and basic in nature and subsequently ought to be agreed to. Yet, the court has the
caution to choose whether the assumption ought to be raised or not. On the off chance that
there is no endorsement under this segment then an outside judgment isn't acceptable as proof
in court. Yet, this does not imply that it rejects other verification. It isn't fundamental that the
remote judgment ought to have just been conceded as confirmation in order to offer ascent to
this assumption. The presumption under Section 87 is identified with the creati on, time and
place of the book or guide or diagram and not identified with precision or rightness of
actualities contained in the book, guide or graph. The exactness of the data in the guide, book
or outline isn't indisputable however without opposite proof it is dared to be precise.14 The
precision of the data in a guide or an outline relies upon the wellspring of data. The age of the
distribution is likewise not essential the court can allude to any production as long as it is
important to the suit brought before it. The presumption under Section 88 depends on the rule
that the demonstrations of authority nature are performed in a standard way. Under this area
the court acknowledges gossip explanation as confirmation about the character of the message
which was conveyed. The prerequisite under this area that no assumption might be made as to
the individual who has conveyed the message with the end goal of transmission is required
and ought to be essentially consented to. This assumption just works if the message has been
conveyed to the recipient generally the message isn't held to be demonstrated. This
presumption applies just those messages which are transmitted to the addressee through the

13
Shantanu Chakrak, Section 4 of the Indian Evidence Act, 1872, SHARE YOUR
ESSAY,http://www.shareyouressays.com/knowledge/section-4-of-the-indian-evidence-act-1872/(2014).
14
John Banville, The Book of Evidence,UNIVERSAL LAW, England, 2006.

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telegraphic office. This presumption also applies to radio messages15. The shape which is
given to the mail station by the sender of the message is the first of the wire and not the frame
given by the mail station to the recipient. Either the first duplicate must be submitted under
the steady gaze of the court by a mail station official or confirmation of its annihilation must
be given before duplicate can conceded as auxiliary proof under the watchful eye of the court
under this segment. As indicated by Section 88 there is just an assumpti on that the message
got by the recipient compares to the message conveyed for transmission to the broadcast office
and there is no assumption with regards to the individual who conveyed the said message for
transmission. However, the evidence identifying with the initiati on of the message isn't
immediate yet of a fortuitous sort. The substance of the message read in setting with the chain
of correspondence is verification identifying with the origin of the message.16 Segment 88-An
is like Section 88 in structure and it resembles an expansion of Section 88 which manages the
transmission of electronic message. As per this segment the c ourt may assume that an
electronic message sent by the originator through an electronic mail server to be recipient to
whom the message implies to be tended to relates with the message with the message as
nourished into his PC for transmission yet the court should not make any assumption with
regards17to the individual by whom the message is sent. The expressions "recipient" and
"originator" given in this area can be characterized by investigating Clauses (b) and (za) of
Subsection (1) of Section 2 of the Information Technology Act of 2000. Area 90 manages
assumption identifying with antiquated reports or records which are 30 years of age. The
premise of Section 90 is the guideline of accommodation and need. The fundamental goal of
this area is to decrease any challenges looked by people who need to demonstrate the
penmanship, execution and confirmation of old reports for building up their case. Under this
segment the court may influence the accompanying assumptions as for old to records: a) the
signature and all aspects of penmanship of such a man and b) that the report was properly
executed and verified by the individual it should be executed and bore witness to. The
assumption under this segment does not have any significant bearing t o different parts of the
record like its substance or its genuineness. The presumption under this area applies to every
one of the archives which go under the definition given under Section 3 of the Indian
Evidence Act. It applies to books of records, testamentary reports, private and open archives.
This assumption does not have any significant bearing to unknown records.18

15
Shantanu Chakrat,Indian Evidence Act, HIGGINBOTHAM, INDIA, 2001.
16
V. Krishnamachari, Law of Evidence, (429 S.GOGIAAND COMPANY2010).
17
M.Monir,Documentary evidenceand oral evidence, 2013.
18
Kashibai Martand vs Vinayak Ganesh And Ors, AIR 1956 BOM 65.

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A. THE PRESUMPTION UNDER SECTION 90 TO BE APPLICABLE THE

FOLLOWING CONDITIONS HAVE TO BE FULFILLED:

❖ The archive ought to be turned out to be or indicated to be at least 30 years of age. There
must be some confirmation or if nothing else a by all appearances case ought to be made out to
help that the archive is 30 years of age. This is anyway a rebuttable assumpti on. Old reports
can be perused as confirmation with no formal verification. The time of 30 years is driven
from the date of the execution of the report to the date on which it is put as proof.

❖ The record ought to be delivered from legitimate care. It can be demonstrated that record is
created from legitimate guardianship either by offering proof to demonstrate the reality or
demonstrate that the individual who delivered it was the store of the report.

❖ The archive ought to be unique and not confirmed duplicates or enrolled duplicates. In the
event that a unique record isn't created under the steady gaze of the court and no reason is
given for the non generation of the first archives the confirmed duplicates are not acceptable
under the steady gaze of the court. In any case if a duplicate of a record can be conceded as
auxiliary confirmation under19 Section 65and is created from legitimate guardianship and is
more than thirty years of age then mark which verifies the report might be assumed as honest
to goodness however this proves the execution of the archive. Guaranteed duplicates are
allowable if the first report is in the ownership of the contrary party. Confirmed duplicates are
likewise acceptable to demonstrate substance of the first if the first duplicate is lost.

❖ This presumption applies just on account of demonstrating the mark and the penmanship of
the record. In the event that the archives don't have a mark then the assumption under Section
90 does not have any significant bearing to it. The meaning of mark under this segment
incorporates thumb impressions if there is no proof despite what might be expected. Anyway
the mark under this area does exclude seals since seals don't fall inside the meaning of mark
given in the General Clauses Act.20

Anyway, there are sure causes which debilitate the assumption under Section 90 are: The
court may assume the validity of the record on the off chance that it over 30 years and
delivered from appropriate guardianship. The assumption is debilitated by conditions which
raise questions legitimacy of the report. At the point when the validity of the archive is

19
James B. Thayer, Presumptionsand the Law of Evidence, HARVARD LAW REVIEW, Vol. 3, No. 4 (Nov. 15,
1889), pp. 141-166.
20
SaiRamaniGarimella, Private International Law in India,KLUWER INTERNATIONAL LAW, 2010.

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debated the court needs to consider outside and interior confirmation identified with it keeping
in mind the end goal to choose whether there was legitimate execution and mark. At the point
when the archive is suspicious on the substance of it the court require not assume that the
report was executed by the individual indicated t o have executed it. Area 90-An is like
Section 90 of the Indian Evidence Act in structure and resembles an augmentation of Section
90 which applies to electronic records which are 5 years of age. As per this area if any
electronic record indicating or turned out to be 5 years of age is delivered from guardianship
which the court in the specific case considers appropriate the court may assume that the
electronic mark which implies to be the electronic mark of a specific individual was so
appended by him or approved by him for this sake.21 The clarification to this area expresses
that the electronic records are said to be in appropriate care in the event that they are in the
place in which and under the care of the individual with whom they normally be however no
guardianship is said to be ill-advised on the off chance that it is demonstrated to have a true
blue inception or the conditions of the case are, for example, to render such a birthplace
plausible.

B. CASE LAWS:

1. Prakash Chand and Ors. vs Hans Raj 24 sept 1993

“May Presume" - Whenever it is given by this Act the Court may assume a reality, it might
either see such certainty as demonstrated, unless and until the point when it is invalidated, or
may call for evidence of it. Whenever a record indicating or turned out to be thirty years of
age is created from a legitimate authority, the Court may either to abstain from confirmation of
the execution of the archive or call for additional verification for the report. The tact is left to
the Court to raise or not to bring assumption up in regard of a record contingent on the
conditions of each case yet this circumspecti on must be practiced judicially and not
subjectively. The activity of prudence ought not exclusively be in consonance with law and
equity yet additionally with extraordinary alert since wrong exercise of the caution under this
arrangement is probably going to fortify the hands of counterfeiter. By and large, it will be
most hazardous to draw assumption that the archive is certifiable just on the grounds that it is
thirty years of age as per the presentations in the record and furthermore is created from
appropriate guardianship. Regardless of whether a report is created from legitimate care or not
involves legal fulfilment and it should be established on the confirmation on record.

21
Ibid

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The factum of appropriate guardianship can't itself be a topic of any assumption and it ought to
be palatably demonstrated.22

From the investigation of Section 90 of the Indian Evidence Act, the acc ompanying
recommendations are deducible:- -

1. That the presumption applies to reports turned out to be at least thirty years of age;

2. The report must originate from legitimate guardianship;

3. The presumption is optional and in situations where a report is ex-facie suspicious the Court
might just decline to make the assumption and call upon the gathering to offer other
verification forthwith;23

4. The presumption must be connected to archives which bear the marks of the essayist or of
witnesses and the assumption can't be attracted instance of unsigned or mysterious papers; 5.
The degree of the assumption relates just to the marks, execution or authentication of an
archive, in other words, its validity. The illustrati on of the assumption does not mean the
substance of the reports is valid or that they have been followed up on. The presumption
applies just to unique archives and no duplicate thereof, ensured or something else.

Applying the previously mentioned recommendations to the present case, the report Ex. D-4 is
unique report, it bears marks of its executants and it doesn't look ex-facie suspicious as it has
been delivered at the primary occurrence when the respondents-offended parties guaranteed
restrictive responsibility for property in question, while, according to this archives it is
expressed to be joint property of forerunners in-enthusiasm of the gatherings. So far its
generation from an appropriate care is worried, according to the clarification to Section 90 of
the Indian Evidence Act, an archive is said to be in legitimate care in the event that it is in the
place in which and under the care of the individual with whom, it would normally be. In
addition, a report is turned out to be delivered from legitimate authority, in the event that it is
conveyed from such24 a place as to offer sensible assumption that it was genuinely and
decently gotten and safeguarded for utilize. So far a deed identifying with the undertakings of
family or plan of the family property is concerned, it is from legitimate care if created by the
children of one of the siblings among whom the course of action was touched base at and who
are in control of the piece of the property, as in the present case the archive Ex. D-4 is created
22
Parkash Chandand Ors v Hans Raj, AIR 1993 SC 214.
23
Shantanu Chakrat, Presumption in Evidence Act, http://www.shareyouressays.com/knowledge/section-4-of-
the-indian-evidence-act-1872/
24
ShantanuChakrat,Indian Evidence Act, HIGGINBOTHAM, 1872.

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by the appellants-litigants who are children of Ram Dass, one of the executants of the report,
who amid his life time and after his passing the appellants-respondents have found possessing
the property in debate.25 The appellants-litigants being appropriate repository of this archive,
even confirmation of its authority isn't vital. Having fulfilled that rep ort Ex. D-4 has been
created from legitimate care an assumption can securely be attracted regard of the marks and
additionally execution by Ram Rattan, Ram Dass and Durga Dass and it was a bit much for
the appellants-litigants to demonstrate their marks by delivering relatives of Durga Dass or
Ram Rattan as their witness, who was alive at the season of recording the confirmation of
appellants-respondents. In this way, both the courts beneath have raised wrong assumption
against the appellants-respondents for not delivering relatives of Durga Dass and Ram Rattan
to demonstrate their marks on archive Ex. D-4. Or maybe, assumpti on was required to be
drawn against the respondents-offended parties for not delivering Ram Rattan, their dad, who
had, as a matter of fact, kicked the bucket in the year 1983, in the event that they were
questioning that this report was not bona fide and did not endure his marks.26

3. D. Ramanatha Gupta vs S. Razaack on 16 February, 1982

This interest by the respondent is coordinated against the judgment and pronouncement dated
19-2-1973 go by the Second Addl. Common Judge, Bangalore in R. A. No. 35/70, on his
record, permitting the interest of the offended party on turning around the judgment and
announcement dated 31-3-1970 go by the Second Addl. In the first place Munsiff, Bangal ore
in 0. S. No. 489/64 on his record, expelling the suit of the offended party for directive. It is the
situation of the offended party that he is the proprietor of the premises known as Ali Buildings
bearing No. 840, Old TalukCutcherry Road, Nagarthpet and 112 Chowdeswari Temple Street,
and respondent is the proprietor of the premises connecting his premises bearing Nos. 113and
114, Old Taluk Cutcherry Road. There are two windows of the span of 36" X 56" on the up
stairs of the offended parties working through which the light and air goes to the property of
the offended party. These windows and ventilators have been by the offended party in
presence for more than 50 years and the offended party has been in satisfacti on in the light and
air, coming through them and it is undisturbed amid this period. In this way the offended party
has obtained easement ideal to the light and air through the windows and ventilators having
appreciated the same in his own particular right undisturbed for a time of 50 years. The
respondent some time back wrecked the structure in N os. 113and 114 Chowdeswary Temple
Street, and is currently setting up another storied building. On the off chance that the
25
Ibid.
26
Girijesh Shukla, Summary of Indian evidence act 1872.

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respondents were to put up a two storied building, the windows and ventilators would be
totally quiet down and there will be no air and light and there will be no entry through which
the air and light go to the property of the offended party. Subsequently, he asserted that the
litigant isn't qualified for hinder the air and light getting through the windows. Hence, the
offended party looked to limit the litigant by methods for an order from hindering the windows
and ventilators. Henceforth, he established the suit for lasting order against the litigant with a
petition for issuance of a directive - for all time, restricting the respondent from closing out the
windows and ventilators arranged in the offended party's property and for costs. The suit was
opposed by the litigant. He battled that the offended party did not get any easement by
solution for the affirmed stream of battle and air through the windows and ventilators. He
particularly argued that the forerunners in-title of the offended party executed a concession to
5-9-1921 to the ancestors in-title of the respondent endeavor not to block the raising of the
working by developing the floors. Consequently he presented that the suit for order was not
27
viable. D. Ramanatha Gupta vs. S. Razaack on 16 February, 1982 In the outcome, in this
manner, the interest is permitted. The judgment and pronouncement of the principal
investigative Court are put aside and the judgment and announcement of the trial Court is
supported and re-established and the suit of the offended party for order is thusly expelled. No
expenses of this appeal. Appeal permitted.

IV. CONCLUSION
There is indeed a beautiful metaphor in the regard in the judgment of Cochran, J. in Stumpf v.
Mantgomery28,Pac 85 of the American Court (quoted in Wigmore para 2491, page 291) as
follows :"Presumptions may be looked on as the bats of law, flitting in the twilight, but
disappearing in the sunshine of facts."

Documents are said to be in appropriate guardianship in the event that they are in the place in
which, and under the care of the individual with whom, they would normally be; however no
authority is ill-advised on the off chance that it is demonstrated to have had a true blue root, or
if the conditions of the specific case are, for example, to render such a birthplace plausible.
Optional assumptions given under Section 86 to 88-A and Section 90-A are plain as day in
nature. As indicated by the present position of law insignificant generation isn't sufficient, the
creation must be from appropriate authority. Appropriate care of a report implies that the

27
D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kar 314.
28
(1924) 101 OKL 256.

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archive is ownership of such a man, to the point that it doesn't achieve any doubt,
misrepresentation or uncertainty. Legitimate care does not mean most appropriate place for
the archive to be stored it just requires that there ought to be an adequate clarification about
the starting point of the report. Legitimate guardianship subsequently implies the report ought
to be in such a place or with such a man where or in whose ownership can be sensibly
anticipated that would be. The present position of law is that Section 90 is appropriate to just
unique records and not to duplicates of archives.

In State Of U.P vs Krishna G opal and Anr29, Venkatachalliah, M.N. (J) said that “D oubts
would be reasonable if they are free from a seat for abstract speculation. Law cannot afford
any favourite other than truth. To consitute reasonable doubt, it is must be free from an over
emotional response.”

Anyway, in duplicates of documents, (whether guaranteed duplicates or enlisted duplicates)

which can be conceded as auxiliary confirmation under Section 65 which is more than 30
years of age and is created from legitimate guardianship just the mark which verifies the
report can be ventured to be bona fide and not the execution of the said archive. Ensured
duplicates are permissible to demonstrate the substance of the first archive if the first rep ort is
turned out to be lost in appropriate authority or it is in the ownership of the unfriendly party.
In any case, these ensured duplicates don't demonstrate the execution of the first records just
the substance of the same. The present position of law is that exclusively the archives which
are marked draw in the assumption under Section 90. On the off chance that the report does
not have a mark at that point Section 90 isn't material. Mark here inc orporates thumb
impressions yet does exclude seals.

29
1988 AIR 2154.

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V. BIBLIOGRAPHY

BOOKS:

1.John Banville, The Book of evidence, Published by Universal law on 2006, England.

2SaiRamaniGarimella, Private International Law in India, Published by Kluwer Internati onal

Law on 2010, New Delhi.

3. James Stephen Fitzjames, Law of evidence, Published by Little Brown on 1870, USA.

4. Kindersley J., A Manual Law Of Evidence, Published by CatherineLintot on 1791, UK .

5. Shantanu Chakrat, Indian evidence Act, Published by Higginbotham on 1872, in India.

JOURNALS:

8. The Indian evidence act ( Amendment) Bill 2013, Law commission of India .

9. Presumption as to Indian evidence Act documents byHarvard University.

10. Documentary evidenceand oral evidence byM.Monir.

11. Report of law commission of Indian in Indian evidence Act in 1872 by Bimal N Patel .

12. Summary of Indian evidence act in 1872 by Dr. Girijesh Shukla. Internati onal Journal of
Pureand Applied Mathematics Special Issue 57 13. Importance features of the Indian evidence
act by Alcuin lawn.

E- SOURCES:

14. http://www.advocatekhoj.com/library/bareacts/indianevidence/

15.http://www.legalservicesindia.com/article/532/Presumption-as-documents.

16.https://www.jstor.org/stable/pdf/1321688.

17.http://ncw.nic.in/acts/THEINDIANEVIDENCEACT1872.

18.http://www.shareyouressays.com/knowledge/section-4-of-the-indian-evidence-act1872/

CASE LAWS:

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19. Kirpal Singh vs Aas Kumar on 2 August 1996.

20. KashibaiMartand vs Vinayak Ganesh And Ors. on 22 February, 1955.

21. Kulwant Singh vs Assessee income Tax on 2008 .

22. Sri S Prakash vs Sri Jambu Kumar Mutha on 13 June, 2017.

23. Chikkapapanna Alias G.C. vs Smt. Kenchamma (Deceased) By L.Rs on 19 June, 1998

24. D. Ramanatha Gupta vs S. Razaack on 16 February, 1982.

25. Prakash Chandand Ors vs Hans raj on 24 sept 1993.

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