Section 4 of the Indian Evidence Act, 1872

Comments:

A court has discretion to presume a fact as proved, or to call for confirmatory evidence as the circumstances require. In such cases the presumption is not a hard and fast rule. The presumption is juris et de jure. The court is free to presume any fact or not as the presumptions are about the question of facts. It may regard such fact as proved, unless and until it is disproved or may call for the proof of it.

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If in a case the court has an option to raise the presumption and raises the presumption, the distinction between two categories of presumptions ceases and the fact is presumed, unless and until it is disproved. It is open to the Court upon proof of a marriage on a certain date, either to regard as proved the subsistence of the marriage on a subsequent date unless and until it should be disproved or else to call for proof of it.

Example:

Under section 90 of the Evidence Act when a document of thirty years old is produced before the court, it may be presumed that the document was signed and written by a person by whom it was presumed to have been written and signed. Similarly, Section 88 of this Act deals with presumption (may presume in nature) such as to telegraphic message.

“Shall presume”:

Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

Comments:

The court is bound to presume a fact as proved. The presumption is irrebuttable presumption as it is presumption of law. Whenever there is provision to the effect, “that the court shall presume a fact,” the court cannot exercise its discretion, but in such circumstance the court shall have liberty to allow opposite party to adduce evidence to disprove the fact so presumed. If the party is successful in disproving it the court shall not presume the fact. The expression “shall presume” is to be understood as in terroren i.e. having some import of compulsion.

Example:

Under section 89 of the Evidence Act “the court shall presume that every document, called for and not produced after notice to produce attested, stamped and executed in the manner required by law.”

“Conclusive proof”:

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

Comments:

When a fact is a ‘conclusive proof’ of another fact the court has no discretion to disprove it. It is irrebuttable presumption and the court shall not allow evidence to be given for the purpose of disproving it. “Conclusive proof’ gives an artificial probative effect by the law to certain facts. No evidence is allowed to be produced with a view to combating that effect. In this sense it is irrebutable presumption. “Conclusive proof: is also within the realm of the Evidence Act. Where a statute makes certain facts as final and conclusive, evidence to disprove such facts is not to be allowed. This is the strongest of all presumptions. When any person signs a document is presumed that he has read the document properly and understood it and only them he has affixed his signature thereon, otherwise no signature on a document can ever be accepted. “In particular, businessman, seeing careful people (since their money is involved) would have ordinarily read and understood a document before signing it. Hence the presumption would be even stranger in their case.”

Example:

Birth during marriage, a final judgment of the court, or a degree conferred by the University.