Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Due Execution, Attestation and Stamping of Documents Not Produced [Section 91]

Section 91 of the Bharatiya Sakshya Adhiniyam, 2023 lays down an important rule of presumption against a party who withholds documentary evidence. It empowers the Court to draw an adverse presumption regarding the formal validity of a document when a party, despite due notice, fails to produce it.

Statutory Provision
Section 91 provides that:
When a document is called for by the Court and is not produced after due notice to produce, the Court shall presume that the document was duly executed, properly stamped, and validly attested in the manner required by law.
Thus, the law presumes compliance with legal formalities relating to execution, attestation, and stamping of the document that has been withheld.

Scope and Nature of the Presumption

• The presumption under Section 91 is mandatory in nature, as indicated by the expression “shall presume”.
• However, the scope of this presumption is limited. It extends only to:
  • due execution,
  • proper stamping, and
  • lawful attestation of the document.

Importantly, this presumption does not extend to the truth or correctness of the contents of the document. The contents still require proof, ordinarily through secondary evidence, in accordance with Section 60 of the Act.

Underlying Principle
The provision is based on the well-established legal maxim:
Nemo ex suo delicto meliorem suam conditionem facere potest
(No one can be allowed to take advantage of his own wrong).
If a party deliberately withholds a document that is in his possession after being lawfully called upon to produce it, the law presumes that the document would have gone against his interest.
This principle is also reflected in the general presumption under Section 119(g), which allows the Court to presume that evidence which could be produced and is not produced would, if produced, be unfavourable to the person withholding it.

Opportunity to Rebut the Presumption
Although the presumption under Section 91 is mandatory, it is rebuttable. The party against whom the presumption is raised may lead evidence to show that:

• the document was not duly executed, or
• it was not properly stamped, or
• it was not validly attested.

However, this right to rebut is subject to an important limitation.

Effect of Section 167
Section 167 of the Bharatiya Sakshya Adhiniyam places a restriction on a party who refuses to produce a document when called upon to do so. It provides that:

• A party who has a document in his possession and refuses to produce it at the hearing cannot later rely on that document as evidence, unless:
  • the opposing party consents, or
  • the Court permits its production.

Thus, while a party may attempt to rebut the presumption by other evidence, he cannot freely rely on the very document he wrongfully withheld, without satisfying the requirements of Section 167.

Condition for Raising the Presumption
For the presumption under Section 91 to arise, the following condition must be fulfilled:

• There must be evidence that the document was in the possession or power of the party against whom the presumption is sought to be raised.

If possession or control of the document is not established, the presumption cannot be invoked.

Conclusion
Section 91 of the Bharatiya Sakshya Adhiniyam, 2023 serves as a deterrent against the suppression of documentary evidence. By compelling the Court to presume due execution, attestation, and stamping of a document that is deliberately withheld, the provision ensures fairness in judicial proceedings and prevents parties from benefiting from their own misconduct. At the same time, it carefully limits the presumption to formal validity, leaving the truth of the contents to be proved in accordance with established rules of evidence.