Sections 89, 90 and 90A of the Indian Evidence Act 1872: Presumptions Relating to Documents and Electronic Records

Section 89 - Presumption as to due execution of documents not produced

Section 89 provided that where a document was called for and was not produced after notice to produce, the Court shall presume that the document was attested, stamped and executed in the manner required by law.

Essential conditions

• A document must have been called for in accordance with law.
• Notice to produce the document must have been given.
• The person required to produce it must fail to produce it.
• On those conditions, the statutory presumption concerns due attestation, stamping and execution in the manner required by law.

The provision addresses the evidentiary consequence of withholding a document after notice. It does not mean that every disputed fact said to be contained in the unproduced document automatically becomes proved.

Section 90 - Presumption as to documents thirty years old

Section 90 applied where a document purporting or proved to be thirty years old was produced from custody which the Court considered proper. The Court may presume that the signature and every other part purporting to be in the handwriting of a particular person was in that person's handwriting and, where the document purported to have been executed or attested, that it was duly executed and attested by the persons by whom it purported to have been executed and attested.

Proper custody

The statutory explanation treated documents as being in proper custody when they were in the place in which, and under the care of the person with whom, they would naturally be. Custody was not improper merely because it differed from that ordinary course if it was shown to have a legitimate origin or the circumstances made such an origin probable. The explanation also applied to Section 81.

Illustrations concerning proper custody

• A person long in possession of landed property produces from that custody deeds relating to the land and showing title to it: the custody is proper.
• A mortgagee produces deeds relating to the landed property although the mortgagor remains in possession: the custody may be proper.
• A connection of the person in possession produces land deeds deposited with him by that person for safe custody: the custody is proper.

Section 90A - Presumption as to electronic records five years old

Section 90A applied where an electronic record purporting or proved to be five years old was produced from custody which the Court considered proper. The Court may presume that the digital signature purporting to be the digital signature of a particular person was affixed by that person or by a person authorised by that person in that behalf.

Proper custody of an electronic record

For Section 90A, an electronic record was regarded as being in proper custody when it was in the place in which, and under the care of the person with whom, it would naturally be. Custody was not improper if it was proved to have a legitimate origin or the circumstances made such an origin probable. This explanation also applied to Section 81A.

Scope of the presumption

The provision focused on the digital signature appearing on an electronic record of the prescribed age and its connection with the person by whom it purported to have been affixed. Because the provision used "may presume," the Court retained the statutory discretion recognised by Section 4.

Difference between Sections 89, 90 and 90A

• Section 89: concerns a document called for but not produced after notice and creates a "shall presume" rule concerning attestation, stamping and execution.
• Section 90: concerns a document thirty years old produced from proper custody and permits presumptions regarding handwriting, signature, execution and attestation.
• Section 90A: concerns an electronic record five years old produced from proper custody and permits a presumption regarding the digital signature.

Legal position before the Bharatiya Sakshya Adhiniyam, 2023

The above explanation is confined to the Indian Evidence Act, 1872 as applicable before implementation of the Bharatiya Sakshya Adhiniyam, 2023. The new enactment reorganised the law of evidence, including provisions concerning documentary and electronic evidence. The applicable statute should therefore be identified by reference to the proceeding and the relevant commencement and savings provisions.