Presumption-A legal Theory

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.

a.Mixed Presumption:

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.

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