84. Presumption as to collections of laws and reports of decisions. –
– The Court shall presume the
genuineness of every book purporting to be printed or published under the authority of the Government of
any 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.
1. Subs by the A.O. 1937, for “the Gazette of India, or the Government Gazette of any L.G., or”.
2. Ins. by the A.O. 1950.
3. Ins. by Act 21 of 2000, s. 92, and the Second Schedule (w.e.f. 17-10-2000).
4. The original word “Government” has successively been amended by the A.O. 1937, the A.O. 1948, Act 40 of
1949 and the A.O. 1950 to read as above.
39
85. Presumption as to powers-of-attorney. –– 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, 1[Indian] Consul or Vice-Consul, or representative 2*** of the
3
[Central Government], was so executed and authenticated.
4
[85A. Presumption as to electronic agreements. –– The Court shall presume that every electronic
record purporting to be an agreement containing the 5[electronic signature] of the parties was so
concluded by affixing the 5[electronic signature] of the parties.
85B. Presumption as to electronic records and 5[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 digital signature, the Court shall presume unless the contrary
is proved that—
(a) the secure 5[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 5[electronic signature], nothing in
this section shall cerate any presumption, relating to authenticity and integrity of the electronic record
or any 5[electronic signature].
85C. Presumption as to 6[Electronic Signature Certificates]. –– The Court shall presume, unless
contrary is proved, that the information listed in a 6[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.]
86. Presumption as to certified copies of foreign judicial records. The Court may presume that
any document purporting to be a certified copy of any judicial record of 7[8* * * any country 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 9* * * the 3[Central Government] 10[in
or for] 11[such country] to be the manner commonly in use in 12[that country] for the certification of
copies of judicial records.
13
[An officer who, with respect to 14*** any territory or place not forming part of 15[India or] Her
Majesty’s Dominions, is a Political Agent there for, as defined in section 3, 16[clause
(43)], of the General
1. Subs. by the A.O. 1950, for “British”.
2. The Words “of Her Majesty, or” Rep. ibid.
3. Subs. by the A.O. 1937, for “Government of India”.
4. Ins. by Act 21 of 2000, s. 92, and the Second Schedule (w.e.f. 17-10-2000).
5. Subs. by Act 10 of 2009, s. 52
(e), for “digital signature” (w.e.f. 27-10-2009).
6. Subs. by ibid., s. 52
(f), for “Digital Signature Certificate” (w.e.f. 27.10.2009).
7. Subs. by the A.O. 1950, for “any country not forming part”.
8. The words “a Part B State or of” omitted by Act 3 of 1951, s. 3 and the Schedule.
9. The words “Her Majesty or of” omitted by A.O. 1950.
10. Subs. by Act 3 of 1891, s. 8, for “resident in”.
11. Subs. by Act 3 of 1951, s. 3 and the Schedule, for “such Part B State or Country”.
12. Subs. by s. 3 and the Schedule, ibid., for “that State or Country”.
13. Subs. by Act 5 of 1899, s. 4, for the para added by Act 3 of 1891, s. 3.
14. The words “a Part B State or” ins. by the A.O. 1950, omitted by Act 3 of 1951, s. 3 and the Schedule.
15. Ins. by the A.O. 1950.
16. Subs., ibid., for “clause
(40)”.
40
Clauses Act, 1897 (10 of 1897), shall, for the purposes of this section, be deemed to be a representative of
the 1[Central Government] 2[in and for the country] comprising that territory or place].
87. Presumption as to books, maps and charts. –– 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.
88. Presumption as to telegraphic messages. –– 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.
3
[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 (21 of 2000).]
89. Presumption as to due execution, etc., of documents not produced. ––The Court shall presume
that every document, called for and not produced after notice to produce, was attested, stamped and
executed in the manner required by law.
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.
Illustrations
(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to
the land showing his titles to it. The custody is proper.
(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession.
The custody is proper.
1. Subs. by the A.O. 1937, for “G. of I.”
2. Subs. by Act 3 of 1951, s. 3 and the Schedule, for “in and for that Part B State or country”.
3. Ins. by Act 21 of 2000, s. 92 and the Second Schedule (w.e.f. 17-10-2000).
41
(c) A, a connection of B, produces deeds relating to lands in B’s possession, which were deposited
with him by B for safe custody. The custody is proper.
1
[90A. Presumption as to electronic records five years old. –– Where any electronic record,
purporting or proved to be five years old, is produced from any custody which the Court in the particular
case considers proper, the Court may presume that the 2[electronic signature] which purports to be the
2
[electronic signature] of any particular person was so affixed by him or any person authorised by him in
this behalf.
Explanation. –– Electronic records 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 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 81A.]
CHAPTER VI. –– OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of
document. –– 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 3[admitted to probate in 4[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 than the facts referred to
in this section, shall not preclude the admission of oral evidence as to the same fact.
Illustrations
(a) If a contract be contained in several letters, all the letters in which it is contained must be proved.
(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
(d) A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact
that B had paid A the price of other indigo contracted for verbally on another occasion.
1. Ins. by Act 21 of 2000, s. 92 and the Second Schedule (w.e.f. 17-10-2000).
2. Subs. by Act 10 of 2009, s. 52, for “Digital Signature” (w.e.f. 27.10.2009).
3. Subs. by Act 18 of 1872, s. 7, for “under the Indian Succession Act”.
4. Subs. by Act 3 of 1951, s. 3 and the Schedule, for “the States”.
42
Oral evidence is offered that no payment was made for the other indigo. The evidence is
admissible.
(e) A gives B a receipt for money paid by B.
Oral evidence is offered of the payment.
The evidence is admissible.
92. Exclusion of evidence of oral agreement. –– When the terms of any such contract, grant or 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 or statement shall be admitted, as
between the parties to any such instrument or their representatives in interest, for the 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, 1[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.
Illustrations
(a) A policy of insurance is effected on goods “in ships from Calcutta to London”. The goods are shipped in a
particular ship which is lost. The fact that particular ship was orally excepted from the policy, cannot be proved.
(b) A agrees absolutely in writing to pay B Rs. 1,000 on the first March 1873. The fact that, at the same time, an
oral agreement was made that the money should not be paid till the thirty-first March, cannot be proved.
(c) An estate called “the Rampore tea estate” is sold by a deed which contains a map of the property sold. The
fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the
deed cannot be proved.
1. Subs. by Act 18 of 1872, s. 8, for “want of failure”.
43
(d) A enters into a written contract with B to work certain mines, the property of B, upon certain
terms. A was induced to do so by a misrepresentation of B’s as to their value. This fact may be proved.
(e) A institutes a suit against B for the specific performance of a contract, and also prays that the
contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A
may prove that such a mistake was made as would by law entitle him to have the contract reformed.
(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the
goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term
still unexpired.
(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words: “Bought of
A a horse of Rs. 500”. B may prove the verbal warranty.
(h) A hires lodgings of B, and gives B a card on which is written ––“Rooms, Rs. 200 a month.” A
may prove a verbal agreement that these terms were to include partial board.
A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney, is
made between them. It is silent on the subject of board. A may not prove that board was included in the
term verbally.
(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does
not send the money. In a suit for the amount, A may prove this.
(j) A and B make a contract in writing to take effect upon the happening of a certain contingency.
The writing is left with B, who sues A upon it. A may show the circumstances under which it was
delivered.
93. Exclusion of evidence to explain or amend ambiguous document. –– When the language used
in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would
show its meaning or supply its defects.
Illustrations
(a) A agrees, in writing, to sell a horse to B for “Rs. 1,000 or Rs. 1,500”. Evidence cannot be given to
show which price was to be given.
(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were
meant to be filled.
94. Exclusion of evidence against application of document to existing facts. –– When language
used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be
given to show that it was not meant to apply to such facts.
Illustration
A sells to B, by deed, “my estate at Rampur containing 100 bighas”. A has an estate at Rampur containing
100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different
place and of a different size.
95. Evidence as to document unmeaning reference to existing facts. –– When language used in a
document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show
that it was used in a peculiar sense.
Illustration
A sells to B, by deed, “my house in Calcutta”.
A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession
since the execution of the deed.
These facts may be proved to show that the deed related to the house at Howrah.
44
96. Evidence as to application of language which can apply to one only of several
persons. –– When the facts are such that the language used might have been meant to apply to any one,
and could not have been meant to apply to more than one, of several persons or things, evidence may be
given of facts which show which of those persons or things it was intended to apply to.
Illustrations
(a) A agrees to sell to B, for Rs. 1,000, “my white horse”. A has two white horses. Evidence may be give of
facts which show which of them was meant.
(b) A agrees to accompany B to Haidarabad. Evidence may be given of facts showing whether Haidarabad in
the Dekkhan or Haiderabad in Sind was meant.
97. Evidence as to application of language to one of two sets of facts, to neither of which the
whole correctly applies. –– When the language used applies partly to one set of existing facts, and partly
to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be
given to show to which of the two it was meant to apply.
Illustration
A agrees to sell to B “my land at X in the occupation of Y”. A has land at X, but not in the occupation of Y, and
he has land in the occupation of Y but it is not at X. Evidence may be given of facts showing which he meant to sell.
98. Evidence as to meaning of illegible characters, etc. –– Evidence may be given to show the
meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and
provincial expressions, of abbreviations and of words used in a peculiar sense.
Illustration
A, sculptor, agrees to sell to B, “all my mods”. A has both models and modelling tools. Evidence may be given
to show which he meant to sell.
99. Who may give evidence of agreement varying terms of document.––Persons who are not
parties to a document, or their representatives in interest, may give evidence of any facts tending to show
a contemporaneous agreement varying the terms of the document.
Illustration
A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery. At the same
time they make an oral agreement that three months credit shall be given to A. This could not be shown as between
A and B, but it might be shown by C, if it affected his interests.
100. Saving of provisions of Indian Succession Act relating to wills.––Nothing in this Chapter
contained shall be taken to affect any of the provisions of the Indian Succession Act,
1865 1(10 of 1865) as to the construction of wills.
PART III
PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER VII. –– OF THE BURDEN OF PROOF
101. Burden of proof. –– Whoever desires any Court to give judgment as to any legal right or
liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a
person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A
must prove that B has committed the crime.
1. See now the Indian Succession Act, 1925 (39 of 1925), Pt. VI, Ch. VI.
45
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by
reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.
102. On whom burden of proof lies. –– The burden of proof in a suit or proceeding lies on that
person who would fail if no evidence at all were given on either side.
Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s
father.
If no evidence were given on either side, B would be entitled to retain his possession.
Therefore the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not
proved.
Therefore the burden of proof is on B.
103. Burden of proof as to particular fact. ––The burden of proof as to any particular fact lies on
that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof
of that fact shall lie on any particular person.
Illustrations
1
[
(a)] A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the
admission.
(b) B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
104. Burden of proving fact to be proved to make evidence admissible. –– The burden of proving
any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the
person who wishes to give such evidence.
Illustrations
(a) A wishes to prove a dying declaration by B. A must prove B’s death.
(b) A wishes to prove, by secondary evidence, the contents of a lost document.
A must prove that the document has been lost.
105. Burden of proving that case of accused comes within exceptions. ––When a person is
accused of any offence, the burden of proving the existence of circumstances bringing the case within any
of the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or
proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and
the Court shall presume the absence of such circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.
The burden of proof is on A.
(b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the
power of self-control.
1. See, in the Act as published in Gazette of India, 1872, Pt. IV, p. 1 there is no illustration
(b).
46
The burden of proof is on A.
(c) Section 325 of the Indian Penal Code (45 of 1860) provides that whoever, except in the case
provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances bringing the case under section 335 lies on A.
106. Burden of proving fact especially within knowledge. –– When any fact is especially within
the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and
circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a
ticket is on him.
107. Burden of proving death of person known to have been alive within thirty years. –– When
the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the
burden of proving that he is dead is on the person who affirms it.
108. Burden of proving that person is alive who has not been heard of for seven
years. –– 1[Provided that when] the question is whether a man is alive or dead, and it is proved that he has
not been heard of for seven years by those who would naturally have heard of him if he had been alive,
the burden of proving that he is alive is 2[shifted to] the person who affirms it.
109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal
and agent. –– When the question is whether persons are partners, landlord and tenant, or principal and
agent, and it has been shown that they have been acting as such, the burden of proving that they do not
stand, or have ceased to stand, to each other in those relationships respectively, is on the person who
affirms it.
110. Burden of proof as to ownership.––When the question is whether any person is owner of
anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the
person who affirms that he is not the owner.
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.
3
[111A. Presumption as to certain offences. ––
(1) Where a person is accused of having committed
any offence specified in sub-section
(2), in ––
1. Subs. by Act 18 of 1872, s. 9, for “when”.
2. Subs. by s. 9, ibid., for “on”.
3. Ins. by Act 61 of 1984, s. 20 (w.e.f. 14-7-1984).
47
(a) any area declared to be a disturbed area under any enactment, for the time being in force,
making provision for the suppression of disorder and restoration and maintenance of public order; or
(b) any area in which there has been, over a period of more than one month, extensive disturbance
of the public peace,
and it is shown that such person had been at a place in such area at a time when firearms or explosives
were used at or from that place to attack or resist the members of any armed forces or the forces charged
with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless
the contrary is shown, that such person had committed such offence.
(2) The offences referred to in sub-section
(1) are the following, namely: ––
(a) an offence under section 121, section 121A, section 122 or section 123 of the Indian Penal
Code (45 of 1860);
(b) criminal conspiracy or attempt to commit, or abetment of, an offence under section 122 or
section 123 of the Indian Penal Code (45 of 1860).]
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.
113. Proof of cession of territory. –– A notification in the Gazette of India that any portion of
British territory has 1[before the commencement of Part III of the Government of India
Act, 1935 (26 Geo. 5, c. 2)] been ceded to any Native State, Prince or Ruler, shall be conclusive proof
that a valid cession of such territory took place at the date mentioned in such notification.
2
[113A. Presumption as to abetment of suicide by a married woman. ––When the question is
whether the commission of suicide by a woman had been abetted by her husband or any relative of her
husband and it is shown that she had committed suicide within a period of seven years from the date of
her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court
may presume, having regard to all the other circumstances of the case, that such suicide had been abetted
by her husband or by such relative of her husband.
Explanation. –– For the purposes of this section, “cruelty” shall have the same meaning as in
section 498A of the Indian Penal Code (45 of 1860).]
3
[113B. Presumption as to dowry death. ––-When the question is whether a person has committed
the dowry death of a woman and it is shown that soon before her death such woman had been subjected
by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall
presume that such
