May presume, Shall presume and Conclusive proof

Section 4.- “May presume”- Whenever it is provided by this Act that

Court may presume a fact, it may either regard such fact as proved,
unless and until it is disproved, or may call for proof of it;
“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;
“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 disproved.
Every fact, on the basis of which a party to a proceeding wants to take
judgment, must be proved. No court can while deciding a case, place
reliance on a fact unless and until it has been proved according to the
rules laid down in the Evidence Act. But the Law of Evidence has
provided that a court can take into consideration certain facts even
without calling for proof of them, i.e., the court may presume certain
things. In the Law of Evidence the word “presumption” is used to
designate an inference, affirmative or negative, of the existence of some
fact. The inference or presumption are based upon the wide experience
of a connection existing between two facts. Presumptions are drawn
from the course of nature for instance, that the night will follow day, the
summer will follow the winter, death ensues from the mortal wound and
the like. They may also be drawn from the course of human affairs, from
the usage of the society and transactions in business, e.g., 1. A watch of
Ram is stolen and soon after it is recovered from the possession of
Shyam. There shall be a natural inference (presumption) that Shyam
either stolen the watch himself or received it from some thief knowing it
to be stolen, 2. From the fact that a letter has been posted, the inference
would be that it reached the addressee.
Kind of Presumption- Presumptions are of three kinds- 1. Presumption
of fact or Natural presumption, 2. Presumption of law (rebuttable and
unrebuttable) and 3. Mixed presumption (presumption of law and fact).
Presumption of Fact- Presumption of fact are inference which are
naturally drawn from the observation of the course of nature and the
constitution of human mind. The examples given above are the example
of the presumption of fact. Section 114 of the Act and the illustrations
under the Section are examples of presumption of facts. Sections 86, 87,
88 and 90 also deal with the presumption of fact. These presumption are
generally rebuttable.
Presumption of Law- Presumption of law is two kinds-
1. Irrebuttable presumption- The conclusive or irrebuttable
presumptions of law are those legal rules which are not overcome
by any evidence that the fact is otherwise. A well-known instance
of an irrebuttable presumption of law can be found in Sec. 82 of
the IPC, wherein it is laid down that “nothing is an offence which
is done by a chield under seven years of age”. If in a criminal case
it is proved that the accused is below than seven years of age he
shall be presumed innocent, no evidence will be allowed to prove
that the accused was guilty. This type of presumption of law is
conclusive.
2. Rebuttable presumption- This kind of presumption arises when
presumptions of law are certain legal rules, defining the amount of
evidence requisite to support a particular allegation, which facts
being proved, may be either explained away or rebutted by
 evidence to the contrary, but are conclusive in absence of such
evidence. Legal presumptions of this kind are definitions of the
quantity of evidence sufficient to make a prima facie case: in other
words of the circumstances under which the burden of proof lies
on the opposite party. A few examples will suffice- a man is
presumed innocent until he is proved guilty, a child if born in a
legal wedlock shall be presumed to be legitimate and one who
questions his legitimacy must disprove it, if a child is born during
divorce he must be presumed illegitimate unless the contrary is
proved, a presumption of law is that a man is alive unless nothing
has been heard about him for 7 years when the presumption is that
he is died. Sections 107, 108, 112 are the examples of this
presumption.

Distinction between Presumption of Fact and Presumption of Law-

1. Presumption of Fact is based on logic, human experience and law
of nature.
Presumption of law is based on provisions of law.
2. Presumption of fact is always rebuttable and goes away when
explained or rebutted by establishment of positive proof.
Presumption of law is conclusive unless rebutted as provided under
rule giving rise to presumption.
3. The position of presumption of fact is uncertain and transitory.
The position of presumption of law is certain and uniform.
4. The court can ignore presumption of fact however strong it is.
The court cannot ignore presumption of law.
5. The presumption of facts is derived on basis of law of nature,
prevalent customs and human experience.
Presumption of laws is derived on established judicial norms and
they have become part of legal rules.
6. The court can exercise its discretion while drawing presumption of
fact i.e., presumption of facts is discretionary presumption.
Presumption of law is mandatory i.e., court is bound to draw
presumption of law.
3. Mixed presumptions- Mixed presumptions of law and fact are
chiefly confined to the English law of real property so it is not
necessary to presume subject here. The Indian Evidence Act has
made provisions for the presumptions of fact and law. In certain
sections of the Act it has been provided that “the court may
presume” certain facts. In some other sections the words “the court
shall presume a fact” has been used. There are certain sections in
which it is said that a certain fact is conclusive proof of certain
another fact. Section 4 of the Evidence Act controls these sections
and gives a direction to courts as to how to proceed under those
sections of the Act.
“May presume”- Whenever it is provided that the court may
presume a fact, the court may take notice of the fact without
calling for its proof or may call upon a party to prove that fact.
Here the court has discretion to presume a fact or not to presume it.
Section 90 of the Evidence Act provides that when a document
purporting to be 30 years old is produced from a proper custody,
the court may presume that the document was signed and written
by the person by whom it purported and is said to have been
written and signed.
Generally when a document is filed in a case it is to be proved by
adducing evidence as to who wrote the deed and who signed it.
Unless and until it is done, the document cannot be read in
evidence. If a document produced before the court is 30 years old,
the court may dispense with the proof of it and read the document
in evidence without calling for the proof of it. The court may also
call for the proof of it and may order that the document will not be
read in evidence without being proved.

“Shall presume”- Whenever there is a provision to the effect “that

the court shall presume a fact” the court cannot exercise its
discretion. It is compelled to take the fact as proved, i.e., it shall
have to presume the fact. But in this case the court will be at
liberty to allow the opposite party is successful in disproving it, the
court shall not presume the fact. In the Indian Evidence Act the
word “shall presume” indicate that presumption therein is
unrebuttable. Sec. 89 of the Evidence Act provides “that 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”.
Presumption and Proof distinguished- Proof considered as the
establishment of material facts in each particular case by proper
and legal means to the satisfaction of the court is effected by a)
evidence or statement of fact, admission or confession of the party
as also production of the document, b)presumption, c)judicial
notice and inspection, etc.
Every fact on which judicial judgment may be given must be
proved. But the Law of Evidence has provided that court can take
into consideration certain facts without calling for proof of them,
i.e., the court may presume certain things. The word presumption
means a thing taken for granted. In the Law of Evidence the word
‘presumption’ is used to designate an inference, affirmative or
negative of the existence of certain facts drawn by a judicial
tribunal. Thus proof is the final stage in a proceeding which is
arrived at by evidence or presumption. Presumption is one of the
means of effecting proof.
“Conclusive proof”- Whenever it is mentioned that a fact is a
“conclusive proof” of another fact, the court has no discretion at
all. It cannot call upon a party to prove that fact nor can it allow the
opposite party to adduce evidence to disprove the fact. Sec 41 of
the Evidence Act provides inter alia that a final judgment, order or
decree of a competent court in exercise of matrimonial jurisdiction
is a conclusive proof of that legal character. For example, suppose
A files a suit in a court of law for declaration that B is his legally
married wife. The court gives a decree in favour of A and declares
that B is his wife. After a few years in the lifetime of A, Bfiles a
suit against D for the property of one C, alleging that she is widow
of C. In this case there will be an issue whether B is the wife of C.
D files the copy of the judgment of the previous case (A versus B).
This judgment will prove that B is legally married wife of A. Now
that B is legally married wife of A is a conclusive proof of the fact
that she is not the wife of C. Therefore, after the judgment
mentioned above has been filed, the court cannot allow B to
adduce evidence to prove that she is wife of C and not of A.
‘Conclusive proof’ in Sec. 4 of the Evidence Act shows that by
declaring certain fact to be conclusive proof of another an artificial
probative effect is given by the law to certain facts and no evidence
is allowed to be produced with a view to combating that effect.
These cases generally occur when it is against the policy of
Government or the interest of society that a matter may be further
open to dispute.