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Report No. 69

Section 88

40.18. Introductory.-

Section 88 provides that the court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent: but the court shall not make any presumption as to the person by whom such message was delivered for transmission.

40.19. No presumption as to delivery.-

It may be noted that the section itself does not raise any presumption of delivery to the addressee, but assumes, on the contrary, that such delivery has taken place. This is clear from the words "forwarded from a telegraph office to the person to whom such message purports to be addressed".

40.20. However, it may also be noted, that in the case of the post office, there is a presumption that a letter properly directed and posted (and not returned) was delivered in due course1. It has been stated2 that this presumption will be extended to postal telegrams, now that the inland telegraphs form part of the Government postal system. The view has been expressed in England that proof that the message was sent over the wires addressed to a particular person at a particular place, he being shown to be at the time resident at such a place, may present a prima facie case of the reception of such telegram by the addressee3.

1. See-

(a) British and American Telegraph Co. v. Colson, LR 6 Exch 122; per Barmwell, B.

(b) Walla v. Wicker, 86 LJKB 177.

(c) Cases in Phipson Evidence, (1963), para. 301, footnote 18.

2. Roscos N.P. Evidence, 43, cited in Woodroffe.

3. Wharton Evidence, section 76, 1323, 1329, cited in Woodroffe.

40.21. It would appear that, in India, such a presumption may be raised under1 the general section relating to facts which the court may presume. Further, the Evidence Act provides5 that where there is a question whether a particular act was done, the existence of any course of business, according to which it would naturally have been done, is a relevant fact and may be proved2.

1. Section 114, Illustration (f).

2. Section 16.

40.22. Original of a telegram.-

As to giving the telegram in evidence, it is to be pointed out that the original of a telegram is the one which is handed over 1 or transmission and not the one which is delivered2. The original, as sent, must, therefore, be produced from the post office, or if the original is destroyed, a copy would be admissible3.

No change needed.-The above discussion does not necessitate any amendment of the section.

1. Henkil v. Pape, 1871 LR 6 Exch 7.

2. Godwin v. Francis, 1870 LR 5 Common Pleas 297.

3. R. v. Regan, (1887) 16 Cox 203; Phipson, (1963), para. 1689.

Section 89

40.23. Section 89 provides that the court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law. The principle applicable to the situation dealt with in section 89 is usually referred to as the principle of necessity. The notice to produce is usually given under section 65(a) read with section 66.

40.24. The presumption under the section is rebuttable; but it is to be noted that the mere production of the document at a later stage is not enough to rebut the presumption1. One example of a circumstance justifying rebuttal of the presumption is where the deed in question is proved at some time in the past to have been in the possession of the party giving notice.

1. Kashibai v. Vinayak, AIR 1955 Born 999: 57 Born LR 918; followed in AIR 1956 Boni 65.

40.25. Another method of rebutting the presumption would be by an admission by one of the parties who now seeks to rely on the document. In this connection, it is to be noted that once it is shown that the document was unstamped, it should be presumed to have continued until the contrary is proved1. Circumstances may, again, show that the document is not in the possession of the party to whom the notice is given, and in such a case, the presumption cannot be made.

No change needed.-The above discussion does not disclose need for any amendment.

1. Marine Investment Company v. Heavyside, Law Reports 5 House of Lords 624.

Indian Evidence Act, 1872 Back

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