Jojy George Koduvath.

Introspection.

Presumption in Evidence Act

• 1. Sec. 114 of the Evidence Act allows the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
• 2. ‘Presumption’ may guarantee truth of the contents of a document. Whether the presumption bestows truth is a matter to be deduced after ‘appreciating’ evidence of facts (in each case).
• 3. The court should give an opportunity to the party who relies on the document, to cure the deficiency (so finds by the court) for not adducing proper evidence to prove the document.
  • It is clear from Sec. 114. This provision gives a discretion to the court to invoke or not to invoke the presumption. It can never be a ‘classified’ matter.
  • We can take cue from Section 58 of the Evidence Act and Proviso to Order XII, Rule 2A of the CPC and  Sec. 294 of the CrPC.
  • Proviso to Section 58 of the Evidence Act and Proviso to Order XII, Rule 2A of the CPC and  Sec. 294 of the CrPC state that the facts admitted by the opposite side need not (always) be taken as proved, by the court. They manifestly allows the courts to “require” the facts admitted to be proved otherwise than by such admissions.

Presumption and marking of a document

• Whenever the court considers:
  • (a) mere marking of a document on admission will not amount to its proof; or
  • (b) the probative value of a document ‘marked without objection’ is low or nil, for want of proper proof; or
  • (c) there is a formal defect (for not adducing ‘foundational evidence’) for a document that is a secondary evidence,
• No court can discard the document from consideration, on this score, without giving an opportunity, to the party who relies on the document, to cure the deficiency.
• It does not ipso facto arise from relevancy. The ‘truth or otherwise’ attached to the contents of a document is ‘presumed’ only under Sec. 114.

‘Presumption’ in Law – Is it Truth of a Fact Alleged

Presumption, in its word-word meaning, is an inference of a fact. Under Sec. 114 of the Evidence Act, court is expressly authorised to presume the existence of a fact on proof of certain specified conditions.

• But, the inference of fact under Sec. 114, in most cases, will be the subsistence of a fact, like existence of a document or its authorship; and truth of it can be presumed, without further evidence, only in some cases. In certain cases, it may also be possible to take a further presumption – so that the ‘truth’ may also be deduced (Eg. regularity of official acts, transfer under a registered sale deed).

Thus, it is clear that ‘truth’ of a fact, inferred under presumption, may have to be separately established.

Presumption – Registered Document is Validly Executed & also Genuineness of Transaction

• The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
• There is a presumption – registered document is validly executed – Prem Singh v. Birbal, AIR 2006 SC 3608; Jamila Begum v. Shami Mohd., AIR 2019 SC 72; Manik Majumder v. Dipak Kumar Saha, AIR  2023 SC 506.
• A registered document carries with it a presumption that it was validly executed – Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
• A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.
• The facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof – Bhagat Ram v. Suresh, AIR 2004 SC 43.
• A registered deed carries a presumption that the transaction was a genuine one. (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713)

PART I

‘Presumption’ under Sec. 114 of the Evidence Act

A fact, otherwise doubtful, may be substantiated from certain other facts. It is presumption.

Sec. 114 of the Evidence Act allows the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Sir James Fitzjames Stephen – “No Two pairs of Shoes – Precisely Same Marks”

Sir James Fitzjames Stephen (Q.C.) who drafted the Indian Evidence Act, 1872, said in “The Indian Evidence Act  (I. of 1872), With An Introduction Principles on Judicial Evidence” as under:

• “The presumption founded upon common experience, though its force may vary indefinitely, is that no two pairs of shoes would make precisely the same marks.”

Meaning of the word “Presume”

Meaning of the word “presume” is explored in State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744, and stated as under:

• “In Black’s Law Dictionary it has been defined to mean “to believe or accept upon probable evidence”.
• In Shorter Oxford English Dictionary it has been mentioned that in law “presume” means “to take as proved until evidence to the contrary is forthcoming”.
• Stroud’s Legal Dictionary has quoted in this context a certain judgement according to which “A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged”.
• In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.”
•  (See also: Ramachandran v. State of Kerala, 2009 Cr.LJ 168.)

Is there presumption as to “Truth”, in ‘Presumption’ under the Indian Evidence Act?

Not always.

• But, mark – When presumption can be safely invoked without hesitation (on the face of it), the onus would be on a person who challenges such presumption – See: Prem Singh v. Birbal , (2006) 5 SCC 353)

Two views are forthcoming:

• First, Presumption is an inference of a fact. This, by itself (invariably) embraces ‘truth’.
• Second (and more cogent), under Sec. 114 of the Evidence Act, court may presume the existence of any fact. The inference, in most cases, will be the subsistence of a fact, like existence of a document or its authorship (rather than its truth). In proper cases, a further presumption could be added – so that the ‘truth’ may also be deduced (Eg. regularity of official acts, sale under a registered sale deed).

Read Blog: Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Presumption of Truth is taken ‘on something Proved’, or presumed

In Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, the Supreme Court definitely observed that presumption of truth is taken ‘on something proved or taken for granted’. It reads as under:

• “The term ‘presumption’ in its largest and most comprehensive signification, may be defined to mean inference, affirmative or dis-affirmative of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted.”

Under Sec. 114 of the Evidence Act, court can presume the existence of any fact. The Indian Evidence Act does not specifically correlate “truth” or “correctness” with ‘presumption’. But, ‘any fact’ stated in Sec. 114 of the Evidence Act (Court may presume the existence of any fact) includes ‘truth’.

In law, presumption is a probable consequence drawn from facts proved. By invoking presumption, existence (or non existence) of a fact, otherwise doubtful, is inferred from certain other proved facts. The Court exercises a process of reasoning and reach a logical conclusion as the most probable position. 

In proper cases, the court can infer ‘truth’ (over and above) presumption as to VALID EXECUTION. Presumption as to VALID EXECUTION  & CORRECTNESS to registration, need not always lead to further Presumption as to ‘truth’ of contents.

Presumption is Inference and Logical Conclusion

As shown above, it is clear from the Stroud’s Legal Dictionary that presumption is a probable consequence drawn from facts as to the truth of a fact alleged. It is clear that, in presumption, the existence or truth of a fact, otherwise doubtful, is inferred from certain other proved facts. Here, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position.

Presumption is also an inference as to the existence of one fact from the existence of some other facts. In Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, the Supreme Court observed as under:

• “The term ‘presumption’ in its largest and most comprehensive signification, may be defined to mean inference, affirmative or disaffirmative of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted.”

The Apex Court further quoted James Bradley Tayer (American jurist and author of Treatise on Evidence) which reads as under:

• “Presumptions are aids to reasoning argumentation, which assume the truth of certain matters for the purpose of some given inquiry. …”.

In St. of West Bengal Vs. Mir Mohammad Omar, AIR 2000 SC 2988, it is held by our Apex Court as under:

• “Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

It is held as under in Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857, as under:

• “The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship.”

Our courts usually draw presumptions as to truth or correctness in documents covered by Sec. 35 Evd. Act and Registered deeds, as detailed below.

PART II

PRESUMPTION – ONE OF THE ‘MODES OF PROOF‘ OF DOCUMENTS

Besides the direct evidence, modes of proof of (contents of) documents include the following:

• Invoking (specific) presumptions under Sec. 79 to 90A.
• Invoking Presumptions (general) on probability or inferences under Sec. 114.
• Relying on Circumstantial evidence – on probability and inferences (Sec. 114).

Proof Invoking Presumption

Presumption being an inference as to the existence of one fact from the proof of some other proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable consequence (See: St. of West Bengal v. Mir Mohammad Omar, AIR 2000 SC 2988).

Section 67, Evid. Act requires – facts to be proved; It includes invocation of ‘Presumption‘

Section 35 in the Registration Act, 1908 reads as under:

• “35. Procedure on admission and denial of execution respectively—(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or ….”

In Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945) it was observed that Section 67, Evidence Act only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’

In Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, the Kerala High Court observed that the facts required to be proved under Section 67 could be proved by any kind of evidence, and there was nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, was to be excluded. It is held as under:

• “The Privy Council said in Gangamoy Debi v. Troilukhya Nath  (1906) 33 Ind App 60 : ILR 33 Cal 537 (PC)–‘The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order‘.
• 15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. … …..
• 19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) :
  • “…  It (Section 67 Evidence Act) only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’
  • We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect.”

In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713, it is held as under:

• “The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a genuine one.”

Read Blog: Proof and Truth of Documents

Proof of Certified Copies Permitted by S. 77; Correctness Presumed by S. 79

Sec. 77 of the Evidence Act permits to produce certified copies of public documents in proof of its contents.  Sec. 77 reads as under:

• “77. Proof of documents by production of certified copies– Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”

In Kalyan Singh v. Chhoti, AIR 1990  SC 396, our Apex Court did not act upon the ‘just an ordinary copy‘, for, there was “also no evidence regarding content of the original sale deed”. It reads as under:

• “Section 63 of the Evidence Act mentions five kinds of secondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”

Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.

Truth of Public Document must be Separately Established

In Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1, it is held that even when the contents of a document is proved, the truth of what the document states must be separately established. It was a case where truth of contents disputed. It is clear from this decision that the proposition as to proving truth is more apposite when a contention was raised regarding the correctness of truth of the documents. It was further held in this case that annual return under the provisions of Section 164 of the Companies Act was prima facie evidence of any matters directed or authorised to be inserted therein by the Companies Act. The said extract prima facie establishes the truth of the contents of its original.

It is made clear in Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, as under:

• “If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”

General and Specific instances of Presumptions in the Evidence Act

Sec. 114 of the Evidence Act allows the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Sec. 79 to 90A of the Evidence Act speaks as to specific instances of invoking presumptions.

Sec. 114 Evidence Act read with Sec. 35 Evidence Act

Besides direct evidence and admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, Evd. Act can be used to prove the existence and genuineness/truth of a document.

Sec. 35 of the Evidence Act reads as under:

• “35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.

Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases, over and above ‘common course of natural events’, ‘human conduct’ etc. that are brought-forth under the body of S. 114.  ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..

Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held by our Apex Court in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.

In Avadh Kishore Das v. Ram Gopal, AIR 1979 SC 861, (1979) 4 SCC 790, it is observed as under:

• “Wajibularz is village administration paper prepared with due care and after due enquiry by a public servant in the discharge of his official duties. It is a part of the settlement record and a statutory presumption of correctness attaches to it. Properly construed, this Wajibularz shows that the entire revenue estate of village Bahawalpura vests in the Temple or the Math as a juristic person.”

In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:

• “The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”

In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under

• “Where Sec. 35  properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).

In Dalchand Mulchand v. Hasanbi AIR 1938 Nag 152 (Vivian Bose and Puranik JJ.) held as under:

• “The initial burden of proving execution of a document when it is denied is upon the person alleging execution. But if nothing else is known the mere fact that a document is admitted to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. This inference arises in India directly from Sec. 114, Evidence Act. Persons do not ordinarily sign documents without intending to execute them: that is not the common course of human conduct, nor yet the common course their public or private business. Consequently if any person wants to rely on an exceptional circumstance, if he wants to show that in some particular instance the ordinary rule was abrogated surely he must prove it and thus the burden shifts on him”.

Documents in Official and Judicial Acts

Under S. 114, Illustration (e), there is presumption as to ‘regularity’, for Judicial and official acts. 

See also: Relevancy, Admissibility and Proof of Documents

• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?

Presumptions on documents arise in the following cases:

1. Presumption on documents made in the course of business.
2. Presumption on Regularity of official and judicial acts.
3. Presumption on Registered Documents.
4. Presumption on statements of dead person or who is not found etc.
5. Presumption on certified copies of foreign judicial records.
6. Presumption on certain books, maps and charts.
7. Presumption on telegraphic messages.
8. Presumption as to electronic messages.
9. Presumption on 90 years old documents.
10. Presumption on electronic records five years old
11. Presumption on undue influence
12. Presumption on Specific documents:
    • a. Wound Certificates, Post-Mortem Report etc.
    • b. Certificate, prepared on the basis of other documents.
    • c. Commission Report in an earlier case
    • d.  Deposition in an earlier case

Relevancy and Presumptions on Truth

Sec. 16, 34, 35, etc. of the Evidence Act speaks only on ‘relevancy’ of documents. It directs towards the ‘admissibility’. The ‘truth or otherwise’ attached to its contents is ‘presumed’ under Sec. 114.

Documents in the Course of Business.

Section 16 of the Indian Evidence Act: Sec. 16 reads as under:

• Existence of course of business when relevant: When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

Illustrations to Sec. 16 make it clear that (a) when a question arises whether a particular letter was dispatched, the facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant; and that (b) when a question arises whether a particular letter reached A, the fact that it was posted in due course, and was not returned through the Dead Letter Office, are relevant.

In Puwada Venkateswara Rao v. Chidamana Venkat Ramanaa, AIR 1976 SC 869, the Apex Court found that a letter sent by registered post, with the endorsement “refused” on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service and it was observed that there was presumption under Sec. 114 of the Evidence Act that, in the ordinary course of business, it was received by the addressee and actually refused by him.

Illustration (f) of Sec. 114 of the Evidence Act speaks that the common course of business has been followed in particular cases. Under this Illustration, it can be presumed the common course of business has been followed in particular cases. A registered postal receipt along with a copy of the letter containing the court notice and bearing correct address raises a presumption that it was duly received by the addressee, in spite of the absence of a return of acknowledgement (Anil Kumar vs. Nanak Chandra: AIR 1990 SC 1215). but, the addressee can rebut it (Radha Kishan vs. State: AIR 1963 SC 822).

Section 34 enjoins that entries in books of account, regularly kept in the course of business, are relevant. But, they by themselves, cannot create any liability. Unbound sheets of paper are not books of account (Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35).

Books of account, by themselves, being cannot create any liability (Ishwar Dass v. Sohan Lal, AIR 2000 SC 426), it can only be a corroborative evidence, and must be supported by other evidence (Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35).

Therefore, it is clear that, Sec. 114 can be resorted to, and presume existence of truth or correctness (a fact) which ‘it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business’.

Section 32: The ‘presumption of truth’ on such documents arises if it falls relevant under Sec. 32. Sec. 32 Evidence Act reads as under:

• “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. –– Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:  
• (1) When it relates to cause of death …. …..
• (2) Or is made in course of business. –– When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him
• (3) …..”

PART III

REGISTERED DEEDS – Presumption of Correctness Attached

As per Section 114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. According to Section 114 (e) there is a presumption that the judicial acts and official acts have been regularly performed.

Section 32 of the Registration Act states as to who shall present a document for registration. Section 34(3) states that the Registering Officer shall thereupon:

•  “(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;
•  (b) satisfy himself as to the identity of the persons appearing before him and alleging that he has executed the document.”

Section 35 provides that if the person executing the document appears personally before the registering officer and personally known to him, or if he be otherwise satisfied that he is the person, admits the execution of the document the registering officer shall register the document in accordance with sub-rule (2). The Registering officer may, in order to satisfy himself that the person appearing before him is the person he represent himself to be, or for any other purpose contemplated by this Act, “examine the person present before him in his office.” The Act further lays down that if any such person appears to the registering officer to be a minor, an idiot or a lunatic, the registering officer shall refuse to register the document. Section 36 confers the registering officer the power to enforce the appearance of executant and the powers of the civil court in that regard.  The endorsement under Section 58 is made by the Registrar after satisfying with the statutory requirements.

Presumption when a person signs a document

In Grasim Industries Ltd. v. Agarwal Steel, 2010-1 SCC 83, it is held as under:

• “In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people (since their money is involved) would have ordinarily read and understood a document before signing it. Hence the presumption would be even stronger in their case.”

Registered Documents: Presumption – Genuineness

In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713, it is held as under:

• “The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a genuine one.”
• “The deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the defendant to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction. Evidently, with a view to avoid confrontation in regard to his signature as an attesting witness as also that of his father as vendor in the said sale deed, he did not examine himself. An adverse inference, thus, should have been drawn against him by the learned Trial Court.[See Kamakshi Builders v. Ambedkar Educational Society & Ors. [AIR 2007 SC 2191]”
• “A heavy burden of proof lay upon the defendant to show that the transaction was a sham one.”

Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence Act. Under Sec. 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:

1. the date, hour and place of presentation of the document for registration :
2. the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
3. the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
4. any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Sec. 59 and then certified under Section 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. … [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1989 PC 117].

In Sulender Singh v. Pritam, 2013-3 HLR 1443, it is held by the Himachal Pradesh High Court that there was a presumption of correctness to the endorsement/ certificate issued by the Sub-Registrar at the time or registration of gift deed (Rewat Ram Sharma versus Munshi Ram, Latest HLJ 2002 (HP) 165) and that the onus to rebut the presumption on a registered deed was heavily on the plaintiff.

In the split-verdict in Manik Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV Nagaratna, J., held as under:

• “18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”

BV Nagaratna, J. referred the following decisions-

• Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
• Chottey Lal v. The Collector of Moradabad,  AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
• Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
• Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
• Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).

See also Blog: Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Registration of a document is Evidence of its Execution by its Executant

In Manik Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, the sale of property under consideration was made on behalf of the seller to the buyer through the power of attorney.  The power of attorney was not produced before the Court. The High Court observed that the sale was not proved as the PoA was not produced. Refuting the observation of the High Court, BV Nagaratna, J., in the split-verdict, held as under:

• “18. … However, a registered deed has to be proved in accordance with Section 67 of the Evidence Act, 1872. Section 67 states that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Section 67 states that proof of signature and the genuineness of document proved by the proof of handwriting is proof of execution. Execution of a document means signing a document by consenting on it by a party. Section 67 does not prescribe any particular mode of proof. Mere registration of a document is not self-sufficient proof of its execution. It is only a prima facie proof of its execution particularly when no other evidence is available. Registration of a document is evidence of its execution by its executor. Certificate by registering officer under Section 60 of the Registration Act, 1908 is relevant for proving its execution. Proof by evidence afforded by the contents of the documents is of considerable value. In the instant case, what is sought to be proved is title by the sale deed and not the power of attorney as it is the sale deed which conveys title and the sale deed has been executed in accordance with the provisions of Registration Act, 1908, and proved in accordance with Section 67 of Evidence Act. It cannot be held that the sale made on behalf of the seller (original owner of the suit land) to the buyer through the power of attorney is vitiated as the power of attorney was not produced before the Court. This is because even in the absence of the production of the power of attorney, the contents of the sale deed and the execution of the power of attorney as well as the sale deed have been established by proving the sale deed in accordance with the law.”

Presumption on a Registered Document – “It is VALIDLY EXECUTED“

• Section 35 in the Registration Act, 1908 says that the Registrar allows registration of a document (i) if only he is satisfied as to the identity of the person who executes the document, and (ii) if the executant admits the execution of the document.
• Presumptions can be invoked in view of the Sec. 58 and 59 Sec. 60 (certificate) of the Registration Act. The presumption of regularity of official acts in Illustration (e) of Section 114 of the Evidence is also attached to a registered deed.
• In short, the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
• Therefore, there is a presumption – registered document is validly executed –
  • Prem Singh v. Birbal, AIR 2006 SC 3608;
  • Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
  • Jamila Begum v. Shami Mohd., AIR 2019 SC 72;
  • Manik Majumder v. Dipak Kumar Saha, AIR  2023 SC 506.
• A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.
• The facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof – Bhagat Ram v. Suresh, AIR 2004 SC 43.

Registered Deeds: Proof of CORRECTNESS, Invoking Presumption

Besides the presumption on a registered document that it is validly executed, there is also a presumption that the “transaction is a genuine one” (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713). The onus of proof, thus, would be on a person who questions the same

Do Presumptions as to VALID EXECUTION & CORRECTNESS  Import TRUTH?

Two views emerge on registered documents-

• First, Presumption as to VALID EXECUTION  & CORRECTNESS lead to further (invariable) Presumption as to ‘truth’.
• Second (and more cogent), under Sec. 114 of the Evidence Act, court may presume the existence of any fact. In most cases, the court will infer ‘truth’ if there is presumption as to VALID EXECUTION  & CORRECTNESS. But, in proper cases, the court can desist to deduce ‘truth’ despite presumption as to VALID EXECUTION  & CORRECTNESS.

In short, Presumptions as to VALID EXECUTION & CORRECTNESS may Import  TRUTH. Presumptions may give rise to two propositions:

• 1. Shift Burden (as to truth) in Most cases. The party in whom the ‘burden of proof’ rests can rely on ‘registration certificate’ as proof and truth of the contents of the deed.
  • The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
• It being presumed to be VALID & CORRECT, it further gives a presumption as to truth of the contents also, under Sec. 114 Evid. Act (regard being had to the common course of natural events, human conduct etc.) .
• There being presumption as to ‘VALID EXECUTION  & CORRECTNESS’ and thereby presumption as to truth of the contents also, the onus of proof is shifted upon the party who challenges the presumption as to truth of the contents. (Note: it is held in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713, that there is also a presumption on registered deed that the “transaction is a genuine one”)
• 2. No Question of Shifting Burden. But, the above proposition is not an invariable rule. If it comes out from the pleadings, documents or issues that the burden is upon the person who produced the registered document to prove its truth, the presumed presumption will not help him.
  • For example – The executant of the registered deed would not have executed such a deed, in all probabilities (regard being had to the common course of natural events, human conduct etc.) as revealed from the pleadings or documents produced; or, its untrue nature can be (prima facie) ‘judicially noticed’.

Sec. 114 Evid. Act

Sec. 114 Evid. Act reads as under:

• “114. Court may presume existence of certain facts —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations ……”

Is there Presumption as to Truth on Registered Will

On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

The Apex Court observed in Bhagat Ram v. Suresh, AIR 2004 SC 43 as under:

• “The certificate of registration under Section 60 of the Registration Act, 1908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of will as required by the rules enacted by Section 63 of the Succession Act. An endorsement by registering officer is not by itself a proof of the will having been duly executed and attested. ……. …

The Kerala High Court held in Mariyadas v. Benjamin, ILR 2014-4 Ker 471, as under:

• “If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will it will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document.”

Registered deed: Presumption – Validly Executed

It is held in Prem Singh v. Birbal, AIR 2006 SC 3608, as under:

• “52. It is well-settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questions the same.”

In Bellachi v. Pakeeran, AIR 2009 SC 3293, also it is a observed that a registered document carries with it a presumption that it was executed in accordance with law. The Apex Court observed in Jamila Begum v. Shami Mohd., AIR 2019 SC 72: 2018 KHC 7002 as under: 

• “A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and others v. Birbel and others (2006) 5 SCC 353, it was held as under:
  • “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” “

Read Blog: Presumptions on Registered Documents & Truth of its Contents

Registration Certificate is a mode of proof under Section 67 Evidence Act

In Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, the Kerala High Court observed that the facts required to be proved under Section 67 could be proved by any kind of evidence, and there was nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, was to be excluded. It is held as under:

• “The Privy Council said in Gangamoy Debi v. Troilukhya Nath  (1906) 33 Ind App 60 = ILR 33 Cal 537 (PC)–‘The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order‘.
• 15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. … …..
• 19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) : “…  It (Section 67 Evidence Act) only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’
• We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect.”

Non-Examination of Registrar

No doubt, there is a presumption on registration. Therefore, the best evidence rule requires examination of Registrar when one seeks to rebut or displace the presumption. In Muruga Udayar v. Thirumalai Enterpreses, 2011 3 LW 513, the Madras High Court took it seriously that despite the the party who raised dispute as to the execution of the agreement did not chose to examine the Sub-Registrar for proving his case that he did not appear before the Sub-Registrar and put his signature towards registration.

PART IV

30 Years Old Documents and Presumption of Truth of Contents

Sec. 90 Evidence Act reads as under:

• “90. 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 Evidence Act can be analysed as under:

• Sec. 90 CPC speaks about two things, as regards 30-year-documents:
  • 1. A document purports to be in the handwriting of any particular person is presumed to be in his handwriting.
  • 2. A document purports to be executed or attested is presumed to be duly executed and attested.
• Under Sec. 90, Not Truth of Contents, but, only presumption of Genuineness of a document (i.e., existence or handwriting), is drawn. Therefore, besides TRUTH, the contents of the documents also have to be proved by cogent evidence.
  • But, if the document is a public document an “added presumption” (as to correctness) under Section 114(e) is available -Kalita Iqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718.
• Under Sec. 114, TRUTH can be presumed, directly, in proper cases, in their peculiar ensuring facts (regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case).

In Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357, with regard to admissibility in evidence of thirty years old documents produced from proper custody, it was observed as under:

• “15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature  or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.”

Presumption on Public Documents

Quoting Lakhi Baruah v. Padma Kanta, it is held in Kalita Iqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718, as under:

• “The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor OA Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for non­production of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

In Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC  3115; 2009-12 SCC 454, it was observed as under:

• “25. The findings of the learned District Judge holding Ex.P.2 to be a public document and admitting the same without formal proof cannot be questioned by the defendants in the present appeal since no objection was raised by them when such document was tendered and received in evidence. It has been held in Dasondha Singh and Others v. Zalam Singh and Others14 [1997(1) P.L.R. 735] that an objection as to the admissibility and mode of proof of a document must be taken at the trial before it is received in evidence and marked as an exhibit. Even otherwise such a document falls within the ambit of Section 74, Evidence Act, and is admissible per se without formal proof.”

The correct view on Sec. 30 had been expressed in Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, wherein it was observed that this was a matter with the discretion of the court. It also referred to Sec. 114 of the Evidence act. It is held as under:

• “10. The true scope of Sec. 90 of the Evidence Act is that the section does away with the strict rules of proof which are enforced in the case of private documents, by giving rise to a presumption of genuineness with regard to documents reaching a certain age. If private documents not less than thirty years old are produced from proper custody, and are on their face free from suspicion, the court may presume that they have been signed or written by the person whose signatures they bear or in whose handwriting they purport to be, and that they have been duly attested and executed, if they purport so to be. In other words, documents thirty years old prove themselves–see Sirkar on Evidence 12th Edn. page 727.
• The section deals with the admissibility of such old documents without proof in the usual manner, but the credit to be given to them depends on the discretion of the court exercised in a judicial manner and the particular circumstances of each case. No doubt, the presumption is permissive and according to the circumstances of each case the court may or may not raise it. It has also been held in certain cases that a sound disposing mind can be presumed under Sec. 90, This is so ‘because of the expression ‘duly executed’ in the section. The word duly has to be taken to mean execution by a person legally competent to execute the document–see (1) Kottayya v. Karancheti– AIR 1930 Mad 744 (2) Munnalal v. Kshibai — AIR 1947 PC 15; (3) Venkatarama v Bhaskar Rao — AIR 1962 Andh Pra 29.
• This presumption is fortified by Sec. 114 Evidence Act. Again it may be made clear that it is in the discretion of the court to draw the presumption or not.”

PART V

Presumption on undue influence Engrained in:

• (i) Section 111 of the Indian Evidence Act, 1872 and
• (ii) Clause (3) of Section 16 of the Indian Contract Act

Referring M. Rangasamy Vs. Rengammal, (2003) 7 SCC 683, it is pointed out in Bellachi v. Pakeeran,  AIR 2009 SC  3293, that though the law does not envisage raising of a presumption in favour of undue influence and that the party alleging the same must prove the same, it is subject of course to just exceptions. Though normally it would be for a person who pleads undue influence to establish the said fact, when the facts of a case establishes fiduciary relationship of the propounder with the executant, then it is for the propounder to prove that the deed was the result of free exercise of independent will by the executant.

In Krishna Mohan Kul @ Nani Charal Kul v. Pratima Maity,  AIR 2003 SC 4351, the Supreme Court held as under:

• “When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the letter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of the proving the good faith of the transaction is thrown upon the dominant, party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position.
• This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 …. …..”When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donors will….
• 15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian Contract Act, 1872 (in short Contract Act).

The Supreme Court in a subsequent decision in Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, distinguished Krishna Mohan Kul v. Pratima Maity stating that the averments as regard alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn; and that the factum of active confidence should also be established. It was also pointed out in Anil Rishi v. Gurbaksh Singh that Krishna Mohan Kul  was a case proceeded, inter alia, on the following circumstances:

• (i)   The witnesses were not in existence.
• (ii)  The executant was more than 100 years of age.
• (iv) He was paralytic and mental and physical conditions were not in order.
• (v) He was completely bed-ridden and no witness could substantiate that he had put his thumb impression.

Active Confidence & Sec. 111 Evidence Act

Sec. 111 of the Evidence Act reads as under:

• “111. Proof of good faith in transactions where one party is in relation of active confidence. Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
• Illustrations
•  (a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
•  (b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.”

Mere relation or old age not enough: Jamila Begum v. Shami Mohd., 2018 KHC 7002 (SC)

• “26. Insofar as the plea of undue influence, merely because the parties are related to each other or merely because the executant was old or of weak character, no presumption of undue influence can arise. Court must scrutinise the pleadings to find out that such plea has been made out before.”

PART VI

Presumption on Specific documents:

a. Expert Evidence

Section 45 of the Evidence Act does not say anything as to the weight to be attached to the expert evidence. This Section only says that expert’s evidence is admissible. The expert-evidence is not substantive evidence; and it is generally used as a piece of evidence for corroboration or conflict with oral evidence. The evidence of an expert only aids and helps the Court as advisory material. The expert being not a witness of fact, his opinion is to be analysed objectively by the court. The decision making process is never delegated to the expert; the expert only helps and assists the Court to decide. Courts always give due importance to the opinion of the experts. But, it will not substitute proof. Court is said to be the expert of experts.

In practice, the investigating agencies and courts give very high importance to wound-certificates and post-mortem certificates. They are considered as an indispensable part in most criminal cases. Same is the case of evidence of Ballistic expert. Here also primacy is given to ocular evidence if it is found credible by the court, especially when the ocular evidence is supported by the wound certificate or post-motem report.

In State of Haryana v. Bhagirath, (1999) 5 SCC 96, the Supreme Court held as under:

• “15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”

The blood group on the dress of the accused and the dress of the deceased matched. It corroborates the prosecution story. However that by itself is not conclusive proof of the culpability of the accused (Binder Munda v. State, 1992 Cr.L.J. 3508 Ori. (DB).

In Surinder Singh v. State of Punjab, 1989 SCC (Cri) 649, it is observed that it would not be helpful to the prosecution if it was not shown that the blood-stains on the weapon recovered from the possession of the accused were of the same group as the blood of the deceased. (See also: Kansa Behera. v. State of Orissa.AIR 1987 SC 1507).

In State of U.P. v. Krishna Gopal, AIR 1988 SC 2154, the eye-witnesses were found credible and trustworthy. Therefore, the medical opinion pointing to alternative possibilities was not accepted as conclusive. The Apex Court pointed out that witnesses, as Bantham said, were the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged making any other evidence, including medical evidence as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent improbabilities.

Decision which changed the concept of law on ‘conclusive presumption’

Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik, AIR 2014 SC 932, is a very important decision which changed the concept of law on ‘conclusive presumption’ on Sec. 112.

Sec. 112 reads as under:

• 112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

It is held in Nandlal Wasudeo Badwaik case as under:

• “17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”

b. Wound Certificates, Post-Mortem Report etc.

Post-mortem Report or Wound Certificate is not a substantive evidence

• Mohan Singh v. Emperor, AIR 1925 All. 413 (DB);
• State v. Rakshpal Singh, AIR 1953 All. 520;
• Ram Pratap v. State, 1967 All.W.R. (H.C.) 395; Ram Balak Singh v. State, AIR 1964 Pat. 62(DB); Mellor v. Walnesley, 1905, 2Ch. 164 (CA);
• Hadi Kisani v. State, AIR 1966 Orissa 21; Gofur Sheikh v. State, 1984 Cr.L.J. 559 (Cal);
• Bhanda Gorh v. State of Assam, 1984 Cr.L.J.217 (Gau);
• Jagdeo Singh v. State, 1979 Cr.L.J.236 (All);  
• K. Pratap Reddy v. State of A.P., 1985 Cr.L.J.1446].

Unless the medical officer who conducted the post-mortem examination is examined in court, the post-mortem report cannot be used as substantive evidence. In Vadugu Chanti Babu v. State of A.P. (2002) 6 SCC 547 it is observed that a stray statement of the doctor in cross-examination will not be a conclusive opinion; but it is only a possibility.

In Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, it was held that the evidence of eyewitnesses should be preferred unless the medical evidence completely rules it out. It was held as under:

• “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.”

By the advent of scientific techniques in the field of judicial investigation and enquiry, our judicial process began to assign due importance to scientific evidence. Still, the oral evidence has primacy over the scientific evidence.  

c. Certificate or Report prepared on the basis of other documents.

Unless presumption can be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate can be taken as proved unless its contents are proved in a formal manner.

A certificate or report, prepared on the basis of other documents, or assumptions or inferences, by itself, is not admissible as it will only be, at the most, a secondary evidence.

d. Commission Report in an earlier case

Assumptions or inferences of a person on any matter, by itself, is not a substantive evidence. It is admissible only if the person concerned is examined in court. This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.

e. Deposition in an earlier case

It is not a substantive evidence unless it falls under Sec, 32 or 33 of the Evidence Act. But, credit of a witness can be impeached under Sec. 155 (3) of the Evidence Act with reference to his previous statements. Sec. 145 is the provision to cross examine a witness with regard to his previous writing.

f. Date of birth in School register

in Birad Mal Singhvi vs. Anand Purohit,AIR 1988 SC 1796, held as under:

• “An entry relating to date of birth made in the school register is relevant and admissible under section 35 of the Act, but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded .. The entries regarding dates of birth contained in the scholar’s register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates was mentioned in the school record, was examined. In the absence of the connecting evidence, the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value.”

When Marked Without Objection – its ‘contents’ stand proved, if presumptions can be safely invoked

Admission or exhibiting of documents in evidence, and proving the same before the court, are two different process. In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, separate proof need not be warranted. Separate proof may not be required, also, when presumptions can be safely invoked (e.g. a reliable document in ordinary course of business, a letter proved to be obtained in reply, a record from a government office).

Presumptions Incorporated in Evidence Act While Introducing Sec. 65 A and 65 B

• Sec. 81A. Presumption as to Gazettes in electronic forms
• The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody
• 85A Presumption as to electronic agreements
• The Court shall presume that every electronic record purporting to be an agreement containing the electronic signature of the parties was so concluded by affixing the electronic signature of the parties.
• 85B Presumption as to electronic records and electronic signatures
• (1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.
• (2) In any proceedings, involving secure electronic signature, the Court shall presume unless the contrary is proved that—
• (a) the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;
• (b) except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.
• 85C Presumption as to Electronic Signature Certificates
• The Court shall presume, unless contrary is proved, that the information listed in a 86 Electronic Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.
• 88A. Presumption as to electronic messages
• The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.
• “Explanation: For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.

PART VII

Adverse Presumption and Doctrine of Production of Best available evidence

Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld.

But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably (as shown below). Courts take into consideration the pleadings and decide whether the document/evidence withheld has any relevance. The court also cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The conduct and diligence of the other party is also important. Existence of some other circumstances may justify non-production (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).

The rule that best available evidence must be produced is taken in the following cases:

• Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; 
• Hiralal v. Badkulal, AIR 1953 SC 225; 
• A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136; 
• The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; 
• Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413;
• M/s. Bharat Heavy Electrical Ltd. v. State of U.P.,  AIR 2003 SC 3024;
• Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126.

In Mohan Lal Shamlal Soni v. Union of India, AIR 1991 SC 1346, the Supreme Court held as under:

• “It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.”

Invoking best evidence rule it is observed by the Supreme Court in Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, as under:

• “13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).”

In Jitendra v. State of M.P (2003) our Apex Court observed that charas and ganja seized from the accused was the best evidence in that case and the non-production of the same in court was seriously taken note of by the court and observed that that mere oral evidence as to the same was insufficient. (See also: Mohd. Aman, Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.)

In Tomaso Bruno v. State of U.P, (2015) 7 SCC 178, it is observed as under:

• “22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”

With regard to adverse presumption the Apex Court held in Tomaso Bruno as under:

• “28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.”

Non examination of the best person as a witness was also taken seriously by our Apex Court in Jagga Singh v. State of Punjab, AIR 1995 SC 135, observing that ‘the best evidence having not been brought on record’ the it would not be justified, ‘to hold that it was the appellant who had done the mischief’.

In Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522, also the Apex Court found fault for making no attempt to examine material witnesses and observed that the best evidence which would have been thrown light on the controversy in question was withheld.

Need for placing best evidence in cases of circumstantial evidence is emphasised in Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2019 SC 1, also.

Mere Non-Production of Documents would Not result in Adverse Inference

In Mahendra L. Jain v. Indore Development Authority, (2005) 1 SCC 639, the Supreme  Court held that mere non-production of documents would not result in adverse inference. If a document was called for in the absence of any pleadings, the same was not relevant. An adverse inference need not necessarily be drawn only because it would be lawful to do so. In Manager, R.B.I., Bangalore v. S. Mani, AIR 2005 SC 2179, the Industrial Tribunal directed the employer to produce the attendance register. The explanation thereto was that the attendance registers being very old, could not be produced. The Tribunal drew an adverse inference. The respondents did not adduce any evidence whatsoever. Apex Court reversed the finding observing as under:

• “The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle.”

Similar view is stated in the following decisions:

• Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96;
• Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256;
• Smt. Indira Kaur v. Shri Sheo L Kapoor, AIR 1988 SC 1074;
• Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy, AIR 2003 SC 3342,
• Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214; 
• Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328;
• Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681;
• A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; 
• R.M. Yellatti v. Assistant Executive Engineer AIR 2006 SC 355;
• Pratap Singh v. State of M.P., AIR 2006 SC 514;
• Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134, 
• Ravi Yashwant Bhoir v. District Collector, Raigad, AIR 2012 SC 1339,

Referring all the aforesaid decisions it is held in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, that presumption or adverse inference for non-production of evidence is always optional. It is said as under:

• “16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court’s order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.”

Conclusion

The answer to the question – does ‘presumption’ in law guarantee truth of the contents of a document; or, whether it is only proof of existence of the document – is that, ‘presumption’ in law, generally speaking, guarantees truth of contents of a document. Court is free to invoke presumption on a particular set of facts. It depends upon the appreciation of evidence of facts (in each case), by the court, on its experiences, which is an art and science. R. Basant, J., in Basheer Vs. Mahasakthi Enterprises – Ker LT 2005-3 163: 2005-1 Mad LJ 965, held as under:

• “The appreciation of evidence is both an art and a science. All relevant inputs have to be taken into consideration for the Court to answer a disputed question of fact. Each circumstance including the opinion tendered by an expert must be taken into consideration. All the relevant inputs must be placed in the crucible. But the result of such appreciation must stem from prudence, reasonableness and intelligence of the Court. The knowledge of men and matters of the Court would be crucial. The knowledge of the court of common course of events and natural and probable behaviour of human beings will be vital. The yardsticks of a reasonably prudent mind have to be accepted. All relevant circumstances must go into the decision making. When the evidence is sifted, weighed, tested, analysed and evaluated, no one piece of evidence can be said to overrule the others unless such evidence be clinching, convincing and beyond doubt.”

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Foot Notes:

Modes of Proof of Documents

• Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
• Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
• An attesting witness (Sec. 59).
• Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
• Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
• Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
• Invoking ‘ordinary course’, regularity etc. under Sec. 16, 32, 34, 35 read with and presumption under Sec. 114.
• Invoking (specific) presumptions under Sec. 79 to 90A.
• Presumptions (general) under Sec. 114.
• Circumstantial evidence: on probability or inferences (Sec. 114).
• Court-comparison (Sec. 73).
• Facts judicially noticeable (Sec. 56 and 57).
• A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010  ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
• internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857).

Modes of Proof of Documents Required By Law To Be Attested: Section 68 of the Evd. Act provides that the documents required by law to be attested shall not be used in evidence until at least one attesting witness has been examined, if there be (i) an attesting witness alive, (ii) he is subject to the process of court and (iii) he is capable of giving evidence. But, the proviso lays down that if its execution is not specifically denied by the person by whom it purports to have been executed, it shall not be necessary to call an attesting witness in proof of the execution of any document not being a Will if such document is registered in accordance with the provisions of Indian Registration Act, 1908. That is, for the purpose of proving the Will, the examination of the attesting witness is necessary.Following documents are required by law to be attested by two or more attesting witnesses.

1. Will: section 63 of the Succession Act.
2. Mortgage deed: section 59 of the T P Act.
3. Gift deed: section 123 of the T P Act.
4. Bond:  2(5) of the Indian Stamp Act, 1899.

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• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal