Law in laymen’s understanding is specific and defined by a rule book, leaving no scope presumptions or discretion. Oxford Advanced Learner’s Dictionary defines presumption as ‘something that is thought to be true or probable.’ The word ‘thought’ adds to it the element of subjectivity which leaves a capacity for it to be questioned. Whereas in practice, anything which is unproved would lack legitimacy, unless proven then how can evidence have the scope of presumption and how can that presumption be proved to be just and valid? Presumption in law is to basically mean, ‘to believe or accept upon probable evidence’; ‘to take as proved unless evidence to the contrary is forthcoming’.

There there stands a distinction between legal presumptions and our understanding of presumptions in general. ‘A legal presumption is a conclusion, combined with established laws, logic or reasoning, based on a particular set of facts. It is a rule of law that allows a court to assume that a fact is true unless the greater weight (preponderance) of the evidence against it refutes it.’ Even in law there is a staring difference between presumption of law and presumption of fact. According to Vol. 9, Ency. of Evidence, 882, “The distinction usually drawn between the two classes of presumptions is that a presumption of law is an arbitrary rule of law in a way that, when a certain fact/facts appear, a certain other fact is, for the purposes of the case, deemed to be established, either conclusively or until contrary evidence is introduced; while a presumption of fact is merely a logical inference or conclusion which the trier of the facts is at liberty to draw or refuse to draw.” 

We here discuss scope of presumption concerning documents as evidence under Indian Evidence Act, 1872. Presumption pertaining to document produced is to define the legitimacy of any document. It is therefore presumed that any claims regarding the circumstances in which the document was taken are valid, purporting to be made by the person who signed it and that such statements or confessions are duly taken. The principle of “party must produce the best evidence in possession or power of the party” refers to presenting primary evidence i.e. document. A document will make a primary evidence only when it is original and formally proven. 

Section 4 of Indian Evidence Act, 1872 talks about ‘may prove’, ‘shall prove’ and ‘conclusive proof’: 

 “May presume”. —Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it;

“Shall presume”. —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; and

“Conclusive proof”. —When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

This section deals with three categories of presumptions: Discretionary Presumptions, Mandatory Presumption and Conclusive Proof. 

Discretionary Presumptions or ‘May presume’ under this section (as the name suggests) works on the principle of discretion of court, where the courthouses have prudence in choosing whether or not to raise an assumption. The fact is presumed to be proven under this part of the section unless invalidated. The Indian Evidence Act sections that handle discretionary presumptions are section 86, 87, 88, 90 and 90-A. Presumption is basically inference of facts via other facts. Court via applying intelligent reasoning considers certain presumptions from other facts only when there is a statutory compulsion.

Mandatory presumptions or ‘shall presume’ under this section, going after the nomenclature, imposes a duty on the court to presume the validity of a fact unless invalidated. The court will undoubtedly assume the reality of the document/fact as demonstrated. The Sections of the Indian Evidence Act which manage Mandatory Presumptions are Section 79, 80, 80-A, 81, 82, 83 85 and 89. Both of these are rebuttable presumptions and thus gives way to the next concept. 

Conclusive proof is a presumption which works on the principle of juris et de jury, which refers to conclusive presumptions of law which cannot be rebutted by evidence. ‘It gives a predetermined probative impact by statute to certain actualities and no evidence could be allowed to be produced that will combat the impact. This gives certainty to the existence of a fact established.’ It was also held in a case,  “when act enjoins that any evidence would be treated as conclusive proof of certain factual situations or legal hypothesis, law would forbid other evidence to be adduced for purpose of contradicting or varying such conclusiveness.”

These definitions and interpretations have been established by many precedents time and again. Kashibai Martand v. Vinayak Ganesh And Ors is a property dispute case which discussed presumptions back in 1955. This case arose out of the failure to prove the execution of mortgage deed by the plaintiff. The property of this suit was originally owned by Baburao Ganesh Junnarkar, who mortgaged the property to Vinayak Malwadkar on 1-6-1897.  Baburao left behind two heirs after his death, Laxmi and Radhabai. Laxmi died in 1918 whereas Radhabai in 1934 before which Radhabai executed a will on 26-12-1933. With respect to the property in question, the plaintiff is the legatee under this will. That’s how she claims to be the owner of the equity of redemption in relation to the suit mortgage and wants to redeem the mortgage. This case has two main issues; scope of sec 90 if can be extended till certified copies and what is the scope of secondary evidence under presumptions. U/s 90 of the Act, the document with it being 30 years old shall be an original document for the court to presume the legitimacy of that document. When contended that copy can substitute the original, courts denied the scope to be extended rather courts said that secondary evidence shall be included under certified copies admissible as public document u/s 74 and u/s 77 it provides that certified copies may be presented in proof of public documents. The certified copy legitimises the secondary evidence. u/s 60(2) of the Registration Act, once the certificate has been issued, sealed and dated by the Registering Officer, and the certified copy has been obtained and filed along with the sale-deed, it would certainly be admissible as evidence to prove that the document has been duly registered in the manner provided by the Registration Act. Courts also considered presumption u/s 89 of the Act and combined presumptions of these two sections convinced the court in believing that the document was duly executed in manner required by law. 

Section 90 of the Act says,

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

Sec 90, falls under the category discretionary presumptions where the watchfulness lies in hands of court whether to raise an assumption or not. This section entails presumptions regarding antiquated reports/records which are 30 years old. The fundamental reason of this section in Evidence Act is to decrease any challenges looked by people to demonstrate penmanship, execution and confirmation of old reports and documents. It applies to books of records, testamentary reports, private and open archives but does not have nay bearing to unknown records. For the presumptions u/s 90 will only be applicable under following circumstances:

1. The archive has to be 30 years old and proved to be so via supplementing documents or by the look of it. The 30-year period is driven from the date of the report’s execution to the date it is put as evidence. 
2. The report should be delivered out of legitimate care which can be shown by the record’s legitimate guardianship either by offering evidence to demonstrate the reality or by demonstrating that the report store was the individual who delivered it.
3. The archive ought not be original and not a copy/duplicate. In any case, if a duplicate of a record can be granted as an auxiliary confirmation under Section 65 and is created from legitimate guardianship and is more than thirty years old, the mark verifying the report may be assumed to be honest to goodness, but this proves that the archive has been executed.
4. There ought to be a mark and/or penmanship for the assumptions to arise. If the archives have no mark, then the assumption under Section 90 has no significant bearing on it. The definition of the mark requires thumb impressions and/or seals.

In Om Prakash v. Shanti Devi, it was held that, other than a document u/s 90 there was no other evidence in form of handwriting, witnesses, witness examination etc. they also failed to prove the signature of the executant. When document tendered in evidence it turns out to be merely 29 years and 5 months old. This document did not fulfil any conditions laid down u/s 90 of the Act. Therefore, the courts rejected the appeal. The section attracts the question of validity of wills which fall under the criteria of them being 30 years old but the section remains silent on it. The question of will is answered in the case, Bharpur Singh v. Shamsher Singh, which held, that compliance with requirement of producing document would not sufficient, as u/s 68 of The Act postulates that execution must be approved by at least one attesting witness. Also, a will must be proved in terms of S. 63(c), Succession Act, 1925 and S. 68, Evidence Act, 1972.  

This section also carries 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 act in the favour of the original document holder. Documents are said to be in appropriate custody in the event that they are in the place where they would normally be, and under the custody of the individual with whom they are; however, no authority is ill-advised on the off chance that it is shown to have a true root, or if the conditions of the particular case are, for example, to make such a place of birth plausible. Discretionary presumption u/s 86-88 & 90 are though very subjective but also have set guidelines as to how and when to raise assumptions. The fear of misuse of the section occurred to me as well but the affirmation of the document staying with the person it belongs serves as assurance, preventing misappropriation and fraud. The current position of law explicitly states that the scope of this section only stretches till unique and original documents. Assumption of legitimacy of these documents are necessary for many land disputes and birth certificates etc. Tukaram v State of Maharashtra, justifies the need of presumptions. Court ruled that presumptions not only help a victim with fast trials but also direct the case which helps the judiciary in reaching a decision faster. They draw us closer to legal realism which I understand as a utopian mixture of natural justice and legal positivism. The discretionary part leaves a dominating power in hands of judge to act in good conscience. On the plain reading of the text this section might come off as unnecessary however it holds importance as the book of law was made by humans and therefore is not error free, thereby defined discretion and autonomy is must to serve justice. 

References

1. “Presumption Noun – Definition, Pictures, Pronunciation and Usage Notes: Oxford Advanced Learner’s Dictionary at OxfordLearnersDictionaries.com.” presumption noun – Definition, pictures, pronunciation and usage notes | Oxford Advanced Learner’s Dictionary at OxfordLearnersDictionaries.com. Accessed October 30, 2019. https://www.oxfordlearnersdictionaries.com/definition/english/presumption.
2.  Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, para 30
3. US Legal, Inc. “Legal Presumption Law and Legal Definition.” Legal Presumption Law and Legal Definition | USLegal, Inc. Accessed October 30, 2019. https://definitions.uslegal.com/l/legal-presumption/.
4. Sec 4, Indian Evidence Act, 1872-“May presume”.—Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. “Shall presume”.—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. “Conclusive proof”.—When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
5. State of A.P. v. V. Vasudeva Rao, (2004) 9 SCC 319
6. Fitzjames, James, Stephen., Law of evidence., published by little brown on 1870., in USA.
7. State of Kerala v. Mohd. Basheer, (2019) 4 SCC 260 
8. Kashibai Martand Wadekar v. Vinayak Ganesh Malwadkar & Ors., 1955 SCC OnLine Bom 24
9. Section 90, Indian Evidence Act, 1972
10. Thayer, James B. “Presumptions and the Law of Evidence.” Harvard Law Review 3, no. 4 (1889): 141-66. doi:10.2307/1321688.
11. Garimella, SaiRamani, Private International Law in India, published by Kluwer International Law on 2010., in New Delhi
12. Om Prakash v. Shanti Devi (2015) 4 SCC 601
13. Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687, para 19. 
14. Tukaram v. State of Maharashtra, 1979 2 SCC 143. 

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