PRESUMPTIONS AS TO DOCUMENTS

Reference: The Indian Evidence Act
Section 70 to 90

Sections 79 to 90 A deal with presumptions made in regard to documents, certificates and certified copies. The presumptions in Sections 79 to 85 and in Section 89 must be made. However, all these presumptions are rebuttable.
These presumptions made in Sections 79 to 90 A deal with a prima facie presumption of the genuineness of the documents in question and are based on the principles that:
1. It is assumed that an act by a public officer (who s under continual public scrutiny) is properly done. This is reflected in the maxim ‘Omnia praesumuntur rite esse acta’ which means that all acts are presumed to be rightly done and in Illustration (e) to Section 114 which says that it is presumed that judicial and official acts have been regularly performed.
2. The tradition which accepts that a person acting in an official capacity has been duly appointed.

Also see:

Presumption as to certified copies of foreign judicial records

Presumption as to books, maps and charts

Presumption as to telegraphic messages

Presumption as to documents produced as record of evidence

Presumption as to powers-of-attorney

Presumption as to collections of laws and reports of decisions

Presumption as to maps or plans made by authority of Government

Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents

Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents

Presumption as to documents thirty years old

When facts not otherwise relevant become relevant

Presumption as to certified copies of foreign judicial records

Reference: The Indian Evidence Act
Section 86

The Court may presume that any document purporting to be a certified copy of any judicial record of any country and not forming part of India or of Her Majesty’s dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records. An Officer who, with respect to any territory or place not forming part of India or Her Majesty’s dominions, is a Political Agent therefor, as defined in Section 3 (43) of the General Clauses Act, 1897, shall, for the purposes of this Section, be deemed to be a representative of the Central Government in and for the country comprising that territory of place.

This Section does not exclude the operation of Sections 65 and 66 under which secondary evidence of public documents may be given if the person in whose possession they are is either out of the reach of the Court or is not subject to its process.

Presumption as to books, maps and charts

Reference: The Indian Evidence Act
Section 87

The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place, by whom or at which it purports to have been written or published.

Proof of a map is only proof of its preparation. A map can be considered to be a pictorial statement and as such, its maker must be called to the Court to prove its contents.
If the contents of the map were presumed merely by proving the map itself, it would amount to admitting hearsay evidence.

Presumption as to telegraphic messages

Reference: The Indian Evidence Act
Section 88

The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.

Similarly, no presumption can be made as to who sent an eMail or electronic message under Section 88 A. In District Magistrate v. G Jothisankar, 1993, it was held that a telegram is not an authentic document. It can be compared to an unsigned or anonymous communication. It is not evidence of who sent it: it is only primary evidence of the fact that it was delivered to the person to whom it is addressed on the date shown on it. (Abba Astavans v. Suresh, 1984)

Presumption as to documents produced as record of evidence

Reference: The Indian Evidence Act
Section 80

Whenever any document i.e. produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume that the document is genuine; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, and that such evidence, statement or confession was duly taken.

This Section gives legal sanction to the maxim ‘Omnia praesumuntur rite esse acta’ which means that all acts are presumed to be rightly done. (Queen Empress v. Vivan, 1886)
The presumption in Section 80 is wider than that in Section 79 – Section 79 presumes that the documents, etc. mentioned in it are genuine while Section 80 presumes that the documents, etc. mentioned in it are not only genuine but also that they have been properly taken in the circumstances mentioned in them. The presumption of genuineness is, however, not a guarantee of the truth: it is rebuttable. It is under this Section that statements which are recorded under Section 164 of the Code of Criminal Procedure are presumed to be genuine. (Ramchit Rajbhar v. State of West Bengal, 1992)

Presumption as to powers-of-attorney

Reference: The Indian Evidence Act
Section 85

The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.

Notaries Public are officers who may take note of anything which concerns the public by attesting deeds etc. The Central Government is authorised to appoint Notaries Public within any local area under Section 138 of the NIA, 1881. And under Section 2 (21) of the Indian Stamp Act, a PoA includes any instrument empowering a specified person to act for and in the name of the person who executes it. The presumption in this Section applies to both local and foreign Notaries Public. Further, it was held in Re: Sladen, 1898, that the Section is an inclusive Section – it does not exclude other legal methods to prove a PoA.

Presumption as to collections of laws and reports of decisions

Reference: The Indian Evidence Act
Section 84

The Court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of nay country, and to contain any of the laws of that country and of every book purporting to contain reports of decisions of the Courts of such country.

This Section should be read along with Sections 38, 57, 74 and 78. Section 38 makes the law and rulings contained in officially printed books of any country relevant. Courts are directed to take judicial notice of certain facts under Section 57 including Indian and English laws, and legislative proceedings. The documents which are recognised as public documents are listed in Section 74, and Section 78 speaks of how certain public documents including those mentioned in Section 84 are to be proved.

Presumption as to maps or plans made by authority of Government

Reference: The Indian Evidence Act
Section 83

The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.

The presumption of accuracy does not extend to maps or plans made by private persons. This Section should be read with Section 36 which speaks of the relevancy of maps which are made under the authority of the Central or any State Government as well as of public maps or charts generally offered for sale to the public although only maps and plans made under the authority of the Central or any State Government are covered by Section 83. Further, maps or plans covered by Section 83 can be proved by certified copied under Sections 77 and 79.

Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents

Reference: The Indian Evidence Act
Section 81

The Court shall presume the genuineness of every document purporting to be the London Gazette or any Official Gazette, or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament of the United Kingdom printed by the Queen’s Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

As far as newspapers are concerned:
1. Matters published in newspapers are hearsay. They are not admissible. They are not proof of the facts reported in them. (Ramswaroop Bagari v. State of Rajasthan, 2002)
2. The presumption of genuineness does not extend to the facts contained in the newspaper. (Ravinder Kumar Sharma v. State of Assam, 1999)
‘Proper custody’ is explained in the explanation to Section 90 as follows: ‘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 the circumstances of the particular case are such as to render such an origin, probable.’ Further, in Deodem Neale v. Samples, 1838, it was held that ‘Proper custody’ means the custody of any person so connected to the deed that his possession of it does not excite any suspicion of fraud.

Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents

Reference: The Indian Evidence Act
Section 81

The Court shall presume the genuineness of every document purporting to be the London Gazette or any Official Gazette, or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament of the United Kingdom printed by the Queen’s Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

As far as newspapers are concerned:
1. Matters published in newspapers are hearsay. They are not admissible. They are not proof of the facts reported in them. (Ramswaroop Bagari v. State of Rajasthan, 2002)
2. The presumption of genuineness does not extend to the facts contained in the newspaper. (Ravinder Kumar Sharma v. State of Assam, 1999)
‘Proper custody’ is explained in the explanation to Section 90 as follows: ‘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 the circumstances of the particular case are such as to render such an origin, probable.’ Further, in Deodem Neale v. Samples, 1838, it was held that ‘Proper custody’ means the custody of any person so connected to the deed that his possession of it does not excite any suspicion of fraud.

Rules as to Notice to produce Secondary Evidence

Reference: The Indian Evidence Act
Section 66

Secondary evidence of the contents of the documents referred to in Section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law, and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:
(1) when the document to be proved is itself a notice
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it
(3) When it appears or is proved that the adversary has obtained possession of the original by fraud or force
(4) when the adverse party or his agent has the original in Court
(5) when the adverse party or his agent has admitted the loss of the document
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

This Section should be read along with O XI R 15 of the CPC which prescribes the kind of notice required to produce a document in civil cases. Further, Sections 94 to 98 of the Code of Criminal Procedure lays down the procedure to be followed in criminal cases and Section 175 of the Indian Penal Code says that it is an offence to for any person who is legally bound to produce a document to any public servant to intentionally omit to do so.
In Surendra Kriahnan Roy v. Mirza Mohd. Syed Ali Matwali, 1935, it was held that such notice may be dispensed with if the Court thinks that it is fit to dispense with it. However, a party was held not to be entitled to produce secondary evidence of a document which it had not required the other party (who was in possession of the original) to produce in the original in Oriental Fire and General Insurance Co. v. Chandrawali, 1989.

Modes of proving Handwriting

Reference: The Indian Evidence Act

1. Statement by the writer himself : Section 60
2. Evidence of a person who has seen it : Section 60
3. Opinion of a handwriting expert : Section 45
4. Evidence of a person acquainted with it : Section 47
5. The Court compares the handwriting : Section 73

Proof of other official documents

Reference: The Indian Evidence Act
Section 78

The following public documents may be proved as follows:
(1) Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government, by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government or as the case may be, of the Crown Representative
(2) the proceedings of the Legislatures, by the journals of those bodies respectively, or by published Acts o abstracts, or by copies purporting to be printed by order of the Government concerned
(3) proclamations, orders or regulations issued by Her Majesty or the Privy Council or any department of Her Majesty’s Government, by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s printer
(4) the acts of the Executive or the proceedings of the Legislature of a foreign country, by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act
(5) the proceedings of a municipal body in a State, by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body
(6) Public documents of any other class in a foreign country, by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an India Consul or diplomatic agent that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.

This Section deals with how public documents not dealt with in Section 77 may be proved.

In Seodayal Khemka v. Joharlal Manmull, 1923, the Calcutta High Court held that this Section is permissive and not exclusive. The Section itself says that documents may be proved in the manner specified therein. Thus, it is within the Court’s discretion to decide if a document may be proved in the manner described in this Section.

Presumption as to documents thirty years old

Reference: The Indian Evidence Act
Section 90

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 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 the circumstances of the particular case are such as to render such an origin, probable. This explanation applies also to Section 81.

This Section which has expediency as its object ensures that it does not become virtually impossible to prove handwriting attestation etc. the rules as to proof of private documents are made inapplicable by the provisions of this Section if the document is more than 30 years old. Corresponding provisions govern presumptions as to electronic records which are over 5 years old under Section 90 A.
The Court has discretion in the matter of raising a presumption in favour of a document though. It was held in Govinda Hazra v. Pratap Narain Mukhopadhyaya that ‘because a document purports to be an ancient document and to come from proper custody, it does not, therefore follow that its genuineness is to be assumed’.
The discretion is, however, based on sound judicial principles. In Jesa Lal v. Mussamat Ganga Devi, 1913, it was held that the Court should aliunde be satisfied that there is good ground for accepting it as a true document, and in Prakash Chand v. Hans Raj, 1994, it was held that the document should not look ex facie suspicious.
The presumption does not extend to the contents of the document and the period of 30 years begins not when the document is filed but when it is first tendered as evidence in a proceeding, and, in the case of a will, from the date of the will.

THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

Reference: The Indian Evidence Act

Sections 91 to 100 are based upon the principle that the best evidence must always be given, and the acceptance of the fact that no matter how good a person’s memory may be, the best evidence of the content of a document is the document itself.
The principle does not demand the largest amount of evidence – it simply requires the best evidence and since this is documentary evidence, oral evidence is excluded. However, it was held in Javarasetty v. Ningamma, 1992, that oral evidence is not excluded when the writing in question is not evidence of the matter reduced to writing; there is no reason for the Court to prefer either documentary or oral evidence to the other.
The general rule excluding oral evidence in the presence of documentary evidence is laid down in Sections 91 and 92. The general rule is subject to the ‘exceptions’ contained in Sections 93 to 100 which speak of how oral evidence may be used to interpret documents.

Also see:
Section 91: http://indialegal.blogspot.com/2008/04/evidence-of-terms-of-contracts-grants.html
Section 92: http://indialegal.blogspot.com/2008/04/exclusion-of-evidence-of-oral-agreement.html

Evidence of terms of contracts, grants and other dispositions of property reduced to form of document

Reference: The Indian Evidence Act
Section 91

When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1. – When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2. – Wills admitted to probate in India] may be proved by the probate.
Explanation 1- This Section applies equally to cases in which the contracts grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.
Explanation 2—Where there are more originals than one, one original only need be proved.
Explanation 3. – The statement, in any document whatever, of a fact other then the facts referred to in this Section, shall, not preclude the admission of oral evidence as to the same fact.

Under this Section, no oral evidence can be given of the terms of a written contract, grant or other disposition of property. However, oral evidence may be given to show:
1. there was no agreement between the parties and as such, no contract (Tyagaraja Mudialiar v. Vadethanni, 1935)
2. a condition precedent to the formation of the contract (P B Bhatt v. V R Thakkar, 1971)
Thus, the only oral evidence excluded by this Section is oral evidence regarding the terms written in a document. If there is no document, this Section does not apply.
For example, under Hindu law, a partition may be oral. If it is oral, Section 91 has no application. But if it is in writing, the Section applies (and if it involves immovable property, the document must be registered).
The first exception to this Section deals with the appointment of a public officer and is partly a reflection of the maxim ‘Omnia praesumuntur rite esse acta’ which means that all acts are presumed to be rightly done (which is also seen in Section 79).
The second exception says that probate is admissible (even though it is secondary evidence).
This Section should be read along with (a) Section 364 of the Code of Criminal Procedure, (b) O XVIII R 5 of the Code of Civil Procedure and (c) the proviso to Section 49 of the Indian Registration Act which respectively say that (a) evidence may be taken to show that a recorded statement of an accused person was duly made if a Criminal Court finds that the statement was not recorded in the proper manner, (b) the deposition of a witness must be read over to him (and if this is not done, oral evidence of its contents is inadmissible) and (c) an unregistered document which is required to be registered is admissible as evidence of collateral facts or any collateral transaction which need not be effected by a registered document.

Exclusion of evidence of oral agreement

Reference: The Indian Evidence Act
Section 92

When the terms of any such contract, grantor other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last Section, no evidence of any oral agreement of statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for purpose of contradicting, varying, adding to, or subtracting from, its terms
Proviso (1) – Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure] of consideration, or mistake in fact or law.
Proviso (2) – The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3) – The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4) – The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5) – Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved provided that the annexing of such incident would not be repugnant to, or inconsistent with the express terms of the contract.
Proviso (6) – Any fact may be proved which shows in what manner the language of a document is related to existing facts.

This Section supplements Section 91 as it would be pointless to make evidence of a document (other than the document itself) inadmissible if it contradicting, varying, adding to, or subtracting from its terms was permitted.
Sections 91 and 92 are, as the Supreme Court pointed out in Roop Kumar v. Mohan Thedani, 2003, different in some material particulars. It was held that ‘Section 91 aplies to all documents, whether they purport to dispose of rights or not whereas Section 92 applies to documents which can be described as dispositive. Section 91 applies to documents which are both bilateral and unilateral, unlike Section 92 whose application is confined to bilateral agreements’.
Proviso 1 deals with agreements whose validity has been impeached (See Illustrations d and e) and should be read with Section 31 of the Specific Relief Act.

Section 92 applies only when there is no infirmity in the document; facts which invalidate a document can be proved by oral evidence.
Proviso 2 deals with matters on which the agreement is silent. (See Illustrations f, g and h) It is under this proviso that oral evidence is admissible on matters which the document does not speak of although the evidence given cannot be inconsistent with the written terms of the agreement. Also, the Court considers the formality of the document which deciding whether or not the proviso applies i.e. a Court may permit the missing links in a document drafted by a layman to be filled in by oral evidence but may not do so if the document in question has been drafted by a team of lawyers: in such a case, the Court may conclude that what has been left blank has been deliberately left blank.
Proviso 3 deals with conditions precedent to obligation. For example, Section 144 of the Contract Act which deals with guarantees says ‘where a person gives a guarantee upon a contract that a creditor shall not act upon it till another person has joined in it as co-surety, the guarantee is not valid if that other person does not join. Here, the agreement that the person would be under no obligation until a co-surety joined in the guarantee may be proved.

THE EXAMINATION OF WITNESSES

Electronic Records

Reference: The Indian Evidence Act
Sections 65 A and 65 B

Sections 65 A and 65 B deal with electronic records. A computer output is considered to be a document under the IEA. (See Section 65 A)
Under Section 65 B: A computer output is any information contained in an electronic record which is: (a) printed on a paper or (b) stored, recorded or copied in optical or magnetic media produced by a computer.
It is admissible in any proceedings without further proof or production of the original as evidence of: (a) any contents of the original or (b) any fact stated in it of which direct evidence would be admissible.
However, under Section 65 B (2), the output must satisfy certain conditions:
1. It should have been produced by a computer during the period when it was regularly used to store or process information for the purpose of any activity regularly carried on during that period by a person who has had lawful control over the use of the computer during that period.
2. The information of the kind in the electronic record or of the kind from which it was derived should have been regularly fed into the computer during the ordinary course of carrying on the activity during the said period.
3. The computer should have been operating properly. If it was not, it must be shown that the electronic record and the accuracy of its contents has not been affected.
4. The information contained in the electronic record should have been reproduced or derived from information fed into the computer during the ordinary course of business.
The ‘computer’ referred to in this Section need not be one computer. With reference to the period in question, it could be: (1) a combination of computers, (2) different computers operating in succession, (3) different combinations of computers operating in succession, (4) any manner involving the successive operation of one or more computers or combinations of computers in any order. Basically, all the computers used for that purpose during the period in question are treated as a single computer under Section 65 B.
Where it is desired to give a statement in evidence, a certificate shall be evidence of any matter stated in it. The certificate should:
1. identify the electronic record containing the statement and describe how it was produced or
2. give such particulars of any device involved in producing the electronic record as may be appropriate to show that it was produced by a computer or
3. deal with any of the matters to which the conditions mentioned in Section 65 B (2) relate
the certificate should be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activity (whichever is appropriate). It shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(Read Section 65 B (5) )

Secondary Evidence

Reference: The Indian Evidence Act

Secondary evidence of a document cannot be given unless:
1. The non-production of the original is accounted for so as to bring it under one of the exceptions of Section 65. (Krishna Kishori Chowdhrani v. Kirshori Lal Roy, 1887)
2. The original document is admissible.
A conjoint reading of Section 65 (b) and Section 22 of the IEA shows that the admission of a document amounts to the admission of its contents but not of its truth. (Section 22 speaks of when oral admissions regarding the contents of documents are admissible.)
If secondary evidence is sought to be given under Section 65 (c) because of the loss of the original, it must first be proved that the original has been lost. (Illustration (b) to Section 104)
A party who is in custody of the original document cannot give secondary evidence of its contents. (Hira Lal v. Ganesh Prasad, 1882)
Section 65 (d) applies to such things as tombstones, writing on a wall etc. which would be impractical to bring into a Court. It has been held in a number of cases though that this rule applies to ‘written documents’ in the strict sense of the term. It does not extend to films, tapes, etc. And, in Mertimer v. M Challan, 1840, it was held that the rule applied to books of the Bank of England as removing the originals would cause a great deal of public inconvenience.
Section 65 (e) is mainly to protect public documents from possibly damage that they may sustain from being continually produced in evidence.
Section 65 (f) can be read along with Sections 76, 78 and 86 which deal with certified copies of public documents, proof of other official documents and presumptions regarding certified copies of foreign judicial records respectively.
The object of Section 65 (g) is simply to expedite Court proceedings by saving time.