Presumptions Generally — Kinds of Presumption; Court May Presume Certain Facts (ss. 110–113, 119) — BSA (Law of Evidence) Notes

Presumptions Generally — Kinds of Presumption; Court May Presume Certain Facts (ss. 110–113, 119)

A man vanishes. His family has not heard from him — not a letter, not a message — for seven years. Is his wife a widow? May his property be distributed? The law will not make her wait forever for a body that may never be found. Once seven years of silence are shown, the court presumes he is dead, and the burden flips to anyone who says he is alive. This is a presumption at work: the law filling a gap that proof cannot.

A presumption is the law’s shortcut. Instead of making a party prove a fact directly, the law tells the judge to assume it once some other fact is shown. You met the grammar of presumptions in Unit 1 (s. 2(1)) — “may presume”, “shall presume”, “conclusive proof”. This topic puts that grammar to work in Chapter VII.

A. The kinds of presumption

Learn the three settings as a ladder of strength (all defined in s. 2(1)):

“May presume” — discretion. The court may regard the fact as proved, or it may call for proof. It is a rebuttable presumption the judge is permitted, not commanded, to draw (s. 119 is the great example).
“Shall presume” — mandatory but rebuttable. The court must regard the fact as proved unless and until it is disproved. The presumption is compulsory, but the other side may lead evidence to knock it down (e.g. dowry death, s. 118).
“Conclusive proof” — irrebuttable. On proof of one fact the court must treat the other as proved and shall not allow any evidence to disprove it (e.g. legitimacy, s. 116).

A further classification you can mention: presumptions of fact (natural inferences a court draws from experience, always rebuttable — mostly “may presume”) and presumptions of law (drawn because the law commands it — “shall presume” and “conclusive proof”).

B. The particular burden-shifting presumptions — ss. 110–113

Sections 110 to 113 are specific “shall presume”–style rules that place the burden on a named party:

s. 110 — continuance of life. 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 asserts it.
s. 111 — presumption of death. When it is shown that a man has not been heard of for seven years by those who would naturally have heard of him, the burden of proving that he is alive is shifted to the person who asserts it. (Note the limit: the law presumes the fact of death, but not the date or time of death — that must be separately proved.)
s. 112 — continuance of relationship. Where partnership, tenancy, or agency is shown to have existed, it is presumed to continue, and the burden of proving that it has ended lies on the person who says so.
s. 113 — ownership from possession. When a person is shown to be in possession of anything, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. Possession is prima facie proof of ownership.

C. Facts the court may presume — s. 119

Section 119 (old IEA s. 114) is the master “may presume” section: the court may presume the existence of any fact which it thinks likely to have happened, having regard to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. The section then gives famous illustrations the court may draw — each with a proviso that is where the marks are:

A man in possession of stolen goods soon after a theft is either the thief or a receiver — unless he accounts for his possession.
An accomplice is unworthy of credit unless corroborated in material particulars.
A bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration.
A man not heard of for seven years is dead (the discretionary counterpart of s. 111).
Judicial and official acts have been regularly performed.

🔑 The word in s. 119 is “may”. The court is never bound to draw these inferences; it weighs them against the facts of the case. That discretion is the whole difference between s. 119 and the “shall presume” sections.

🧩 WORKED EXAMPLE — reading which presumption applies

Facts. (i) X has not been heard of by his family for eight years. (ii) Y is found with a gold chain snatched in a robbery two days earlier and cannot say how he got it. (iii) Z is in undisturbed possession of a plot of land, and W sues claiming Z is not the owner.

Rule. Seven years’ silence shifts the burden of proving life onto the asserter (s. 111); recent possession of stolen goods lets the court presume the possessor is thief or receiver (s. 119); possession is prima facie proof of ownership (s. 113).

Apply. In (i) the court presumes X is dead; anyone claiming he is alive must prove it. In (ii) the court may presume Y is the thief or a receiver, unless he explains his possession. In (iii) Z’s possession makes him presumptively the owner; W must prove Z is not.

Conclusion. Each presumption places the burden on the party who is denying the natural inference — the shortcut the law draws from ordinary experience.

Note the limit. In (i) the law presumes only the fact of death, never the date — so if the date matters (e.g. survivorship), it must be proved by evidence.

Section 111, BSA 2023: “When the question is whether a man is alive or dead, and it is shown 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 shifted to the person who affirms it.”

Section 119, BSA 2023: “The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

In Simple Terms: A presumption lets the court assume a fact once a linked fact is shown. Some it must draw (ss. 110–113 shift the burden — life, death after seven years, continuing relationships, ownership from possession); the biggest, s. 119, it may draw at its discretion, using ordinary common sense about how the world usually works.

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Case Laws

LIC of India vs Anuradha (2004) — under s. 108 IEA (now s. 111) the law presumes the fact of death after seven years’ absence, but not the time of death; the party asserting a particular date must prove it.
Sarkar vs State (1980s line of cases) — the presumption under s. 114 illustration (a) that a possessor of recently stolen goods is the thief or receiver may be drawn only in the absence of a reasonable explanation.
Sodhi Transport Co. vs State of U.P. (1986) — explained “shall presume” as a rebuttable presumption of law that shifts the burden to the party denying the presumed fact.
Chandmal vs State of Rajasthan (1976) — recent and unexplained possession of stolen property is a strong circumstance from which the court may presume guilt under s. 114 (now s. 119).

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