A presumption based upon a law or a general rule and not upon the facts or evidence in an individual case. Presumption is an inference, which takes place in the absence of absolute certainty as to truth or falsehood of a fact. In other words, presumption is an inference drawn by the court as to the truth of a particular fact, from other known or proved fact. The presumption has direct relevance with burden of proof. It shifts burden of proof on the other party to prove otherwise against the party in whose favor the presumption exit.
Classification of Presumption:
Presumptions may be classified as follows:
1. Presumption of Law(Shall Presumption):
Sometimes the law defines certain situations to be presumed in a certain way. The law makes such presumption to make our civil life easy and practical. Section 6 of Evidence Act 2031 deals with presumption of law. It’s refutable presumption that means the aggrieved party must prove otherwise against the presumption if he/she is to win the case. As per the Sec.6 of Evidence Act.2031has categorizes Presumption of law as
2. Presumption of undivided property:
If more than one co-partner is living together , the law presumes that the property is in possession of one of the co-partner is divisible property among other partners equally.
3. Presumption of joint ownership:
If two or more person is in joint possession of any property , the law presumes that each and every person has equal claim over the property.
4. Presumption of genuinity as to public documents: The law presumes that each and every public document prepared in course of public duty and kept is public record is genuine and accurate a it purports to be. The aggrieved party must prove otherwise to rebut this presumption. Until it is so done the court acts upon it.
5. Presumption of legitimacy:
Any child begotten during lawful wedlock is presumed to be legitimate child of the same couple. Likewise child begotten within 272 days of death of the deceased husband is presumed to be legitimate child of the deceased husband and similarly child begotten within 272 days of divorce is presumed to be legitimate child of divorce.
6. Presumption of genuinity of published and certified document:
If any document purports to publication of any government, or if any document is certified by any public official without his/her authority. The law presumes that such publication or certification is genuine as it purports to be on the face of it.
7. Presumption of genuinity of law or judicial decisions published by foreign government:
If any document which purports to be law or judicial decision is published by foreign government , the law presumes such document to be genuine and accurate. It is taken as evidence on the same presumption. The aggrieved party must bear burden of proof if he/she wants the court to be believe the other way.
b.Presumption of Fact (May Presumption):
Sometime the law gives option on the court. In such situations the court exercise its prudence and practicality and infers certain facts in favor or disfavor of either party to the litigation . In such situation the aggrieved party must adduce evidence to bring the court in his/her favor. Section 7 of Evidence Act 2031, deals with presumption of fact .The law has specified three situations as follows;
1.Presumption of theft:
If a person is found in possession of stolen property the court may presume that he/she either a thief or a person dealing with stolen property .The court may not presume such fact it is proved that the accused may come across of such property because of his/her nature of business.
2. Presumption of adverse interest:
Any person who is in possession of any document if does not produce before the court when ordered .Court may presume that the document if produced relates to adverse interest of such party .The court presumes this way only when it is prudent to do so.
3. Presumption based on logic and experience:
The court may presume any think which is pertinent to the given situation on the strength of its prudence and experience. Everything cannot be brought and proved before the court. There may be several such situations in which the court presumes certain thing at the proof of some other things.
Besides presumptions of fact and of law a third category of presumptions is also recognized which is referred to as mixed presumptions of law and fact. They lie on the boundary line between the other two, i.e. and presumptions of fact and presumptions of law. They consist chiefly of certain inferences which from their strength, importance or frequent occurrence and constant recommendations by judges become, in course of time, as familiar to the courts as presumptions of law.
Presumption of law directs the court to presume certain fact mandatory on the given situation . So the court shall presume such fact if the specified situation is before the court .Presumption of fact defers from presumption of law in the sense that presumption of fact is at option of the court itself. The court is not obliged to presume any fact mandatorily under it. It may presume certain fact if it thinks it appropriate in the given situation. Thus it depends upon the perceptions of the court, its prudence and experience. Both of these perceptions are refutable in court proceeding .The aggrieved party must give evidence, if it wants the court think otherwise. Conclusive proof is another type of presumption which is irrefutable.
The law presumes that a child under 10 cannot form guilty mind, the proof of under agedness of 10 years is sufficient to make believe the court that the child is innocent., the aggrieved party can not give evidence that even if the child below 10, he/she did the act maliciously, with ill will or under cruel intention. So conclusive proof is known as fiction of law. It is irrefutable presumption of law. The two types of presumption of law stated in the text of burden of proof are as follows:
Presumption of death :Any person who is not known to his/her close relations for more than 12 years of period is presumed to be dead for the purpose of law.
4.Presumption of ownership:
Any person who is in possession property is presumed to the owner of that property until otherwise proved.Indian Evidence Act 1872 has given wide range of description relating to presumption of the public document and also presumption of fact in sec.79 to 90, which does not differ with the provision mentioned in the Evidence Act 2031.Sec. 90 has stated that any document which is 30 years old and is produced from proper custody .The court regards such document as genuine and the writing and attestation there in is genuine as per the law.
The law presumption relates to burden of proof. Presumptions whether of law or fact are always refutable by the party on the strength of evidence, otherwise it may be the basis of decision.
Sec.32 of Evidence Act 2031]
Rebuttal of Presumption:
Section 29 of the Evidence Act 2031 states that there are certain facts, which are presumed by the court in favor of either party to the litigation. Presumption of law are those situations in which the law directs the court to presume certain facts on proof of some other facts. The court is obliged to presume as per the direction of law if such situation does not exist. Such situation is listed at the Section 6 of the Evidence Act 2031. The court acts as per the presumption until it is rebutted by the other party.
Similarly, presumption of facts are those situations in which the court acts on option whether to presume certain fact or not. If it does presume , the other party must bear burden of proof to rebut it. Section 7 of the Evidence Act 2031 has laid down such situations.
Presumption of Ownership:
Section 33 of the Evidence Act 2031 says that any person who is in possession of property is presumed to be owner of that property. The person rebutting it must bear burden of proof to the same effect. Similarly, Section 110 of Evidence Act 1872 of India lays down that a person in possession of a property is presumed to be the owner. If anybody denies that the possessor is not owner, the burden of proof lies on him/her.