CHAPTER 2 PRESUMPTIONS

Updated: Dec 16, 2020

Ch.2.1 Presumptions:

Definition: A presumption is a rule of law that Courts and Judges shall draw a particular inference From a particular set of facts; or from a particular evidence. This is held so until the truth of such inference is disproved. Presumptions are drawn from the course of nature. These inferences are based on the wide experience of mankind. They may also be drawn from the course of human affairs, the usage of society, transactions in business, or domestic relationships.' (Norton)

Ch.2.2 Kinds of Presumptions:

Presumptions are of three kinds:

·Presumptions of fact (Natural Presumptions)

·Presumptions of law (Artificial Presumptions)

·Mixed Presumptions.

a) Natural Presumptions: are inferences drawn naturally and logically from the experience of the Course of nature, constitution of human mind, the springs of human action and usages and habits of Society. These are rebuttable. The Evidence Act, has stated them under 'May Presume'.

Examples:

i) Certified copy of foreign records may be presumed genuine.

ii) Telephone message: The presumption is that it corresponds with the original message sent.

iii) Documents 30 years old: The presumption is that the handwriting is that of the person Concerned. Regarding attestation the presumption is that it is duly done. These may be rebutted.

b) Presumptions of Law: These are legal, uniform and are drawn by the Courts whenever the necessary facts develop. In fact, these are in reality rules of law.

These may be rebuttable or irrefutable. The Evidence Act has enumerated them under

'Shall Presume' and

Examples:

i) Certified copies of documents are genuine, ii) Official gazette notifications are genuine, iii) Maps And plans published under the authority of the government are presumed to be genuine, IV) Law reports And such publications are genuine, v) Power of attorney is genuine. These are rebuttable.

Irrefutable Presumptions:


Examples:

I) Judgments in rem is conclusive in respect of the Legal character it declares (Sn.41).

ii) Any person born, a) during the continuance of a valid marriage between his mother and any Man or

b) Within 280 days after divorce, the mother remaining unmarried, shall be conclusive proof that he is legitimate. There must be, of course, access to the parties.

iii) Cession of territory made by Government-conclusive if it is in official gazette. These are irrefutable presumptions and hence are conclusive in nature.

c) Mixed Presumptions:

This stands midway between presumption of fact and of law. These are inferences but because of Their strength, importance or occurrence, they have gained the force of law. Eg. A person is presumed to be dead when it is proved that he has not been heard of, for seven Years. (Sn.107).

Ch.2.3. May presume, Shall presume and Conclusive proof:

a) May Presume: Whenever the Evidence Act provides that the court may presume, what is understood is, that the court treats the fact as proved until it is disproved or it may call for proof of it. A Presumption is a rule of law. The court shall draw an inference from a particular set of facts, or, from a particular evidence.  'May presume' refers to natural presumptions. These are inferences drawn naturally and logically from the experience of mankind, usage and habits of society.

These are rebuttable:

Eg. i) Certified copy of foreign records may be presumed genuine.

ii) Ancient documents (30 years old documents), the Presumptions is that the handwriting is that of The person concerned.


b) Shall Presume: Whenever the Act provides that the court shall presume, what is understood, is, that the court shall regard the fact as proved unless it is disproved. This is rebuttable and stands good until disproved Eg. i) Official Gazette notifications shall be presumed to be genuine.


ii) Maps and plans published under the authority of law shall be presumed to be genuine...

c) Conclusive Presumptions: -These are inferences which the law makes so peremptorily that it will not allow them to be over turned by any contrary proof however strong. Eg. i) Judgment in rem is conclusive in respect of the legal character it declares.


ii) Sn. 112: The fact that any person was born during the continuance of a valid marriage between His mother and any man, or within 280 days after divorce (the mother remaining unmarried) shall be Conclusive proof that the son is legitimate. The burden is on the husband to show that he had no access to

His wife at all and very strong proof is required by courts to establish this. Eg. Husband living abroad for over one year. Here, had no access to his wife, when the child Would have been begotten.

iii) Sn. 113: Cession of territory by Govt.: The official gazette notification is conclusive proof.

Ch.2.4. Presumptions as to documents (Sns.79 to 90):

i) The presumption is a rule of law that Courts and judges shall draw a particular inference from a Particular set of facts, or from particular evidence. 

The Evidence Act has classified these presumptions

Into three groups:

a) May Presume b) Shall Presume and c) Irrefutable Presumptions.

ii) In regard to documents produced before the Courts or their certified copies as required by the Evidence  Act,  the  Courts  start  with  some presumption  for  example  about  the  genuineness  of  the Document. This presumption is rebuttable, and, the party who asserts that the document is not genuine, Should prove or establish his assertion.

iii) May Presume:

Certified copies of foreign judicial records: The Court may presume them to be genuine and accurate if duly certified by the concerned authority. Sn 86 Books/Maps and Charts: The court which may refer for Information on matters of public or general interest, as relevant facts, may presume that these were written and published duly at the place, by the persons there of. Sn 87


Telephonic Message: The court may presume that telegraphic message received by the addressee corresponds with the message given for transmission. However, the court will not make any presumption As to who has sent the message. Sn 88 Ancient documents: In regard to such documents which are thirty years old, and produced from proper Custody, the court may presume that the signature, the hand-writing, are proper; and, that

The attestations and execution are duly done.

iv) Shall Presume:

Certified Copies: Every Certified copy duly issued by the concerned authority shall   be presumed to be genuine, and, duly certified by that authority and that authority held the official status stated therein. Sn 79 Records of evidence in judicial proceedings: The Court shall presume, that such documents forming part of judicial proceedings, are genuine, that the statements contained therein were duly taken or Recorded. (This refers to Confession Statements, or any document or memorandum before any judicial proceedings). Sn 80 Gazette, Newspaper, Acts of Parliament (Or Legislature) and other documents, shall be presumed to be genuine. Sn 81 Maps or Plans made by Government: The courts shall pre some that they are accurate. Sn 83, Foreign Law books and reports: Sn 84. Every law book and law Report published by a foreign Govt. shall be presumed to be genuine. Power of Attorney: Every Power of Attorney duly executed before a Magistrate or a Court, or a Notary Public, shall be presumed to be genuine. Sn 85

Irrefutable Presumptions:

Examples:

I) Judgments in rem is conclusive in respect of the Legal character it declares (Sn.41).

ii) Any person born, a) during the continuance of a valid marriage between his mother and any Man or

b) Within 280 days after divorce, the mother remaining unmarried, shall be conclusive proof that he is legitimate. There must be, of course, access to the parties.

iii) Cession of territory made by Government-conclusive if it is in the official gazette. These are irrebuttable presumptions and hence are conclusive in nature.



1 view0 comments

Recent Posts

See All

CHAPTER 8 EXAMINATION

Examination in Chief and Cross examination: 1.The Evidence Act defines evidence to include oral and documentary evidence to prove or Disprove any matter of fact. In respect of oral testimony of witne

“Education Is The Most Powerful Weapon Which You Can Use To Change The World “

    • Blogger
    • Instagram
    • Twitter
    • YouTube
    © 2021 by www.lawtool.net Copyright™