Section 91 BSA: Presumption as to Due Execution of Documents Not Produced

Section 91 BSA explains the presumption of proper attestation, stamping and execution when a document is withheld despite notice to produce.

Introduction

Section 91 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the presumption as to due execution of documents not produced. It provides that when a document is called for but is not produced after notice to produce, the court shall presume that the document was attested, stamped and executed in the manner required by law.

The provision addresses situations in which a party has been formally called upon to produce a document but fails to do so. It establishes a presumption concerning the document’s formal execution, rather than automatically proving the truth of its contents.

Section 91 BSA corresponds to Section 89 of the Indian Evidence Act, 1872. The wording of the provision remains substantially unchanged under the new evidence law.

Section 91 of the Bharatiya Sakshya Adhiniyam, 2023: Bare Act

91. Presumption as to due execution, etc., of documents not produced.—

“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.”

Explanation of Section 91 BSA

Section 91 establishes a mandatory presumption concerning the formal execution of a document when the statutory conditions are satisfied.

Three requirements are central to understanding the provision:

1. A document must have been called for.
2. Notice to produce the document must have been given.
3. The document must not have been produced despite that notice.

When these conditions are met, the court shall presume that the document was attested, stamped and executed in the manner required by law.

1. Meaning of “called for”

The expression “called for” refers to a document being formally sought in the course of legal proceedings.

For example, one party to a civil suit may require the opposing party to produce an agreement, deed or other document relevant to the dispute. The document must be called for in the legally relevant circumstances; merely knowing that a document exists does not, by itself, establish the statutory trigger.

2. Meaning of “notice to produce”

A notice to produce is a formal notice requiring a party to produce a document that is sought in the proceedings.

Section 64 BSA deals with the rules relating to notice to produce. The provisions should be read together when examining whether the requirements for applying Section 91 have been satisfied.

The purpose of the notice is to establish that production of the document was formally required. If the document is not produced after the requisite notice, Section 91 may become relevant.

Also Read: Section 56 BSA: Proof of Contents of Documents

3. Meaning of “not produced”

The document must remain unproduced after notice to produce.

The provision is concerned with the failure to produce a document that has been called for. The court must examine the circumstances to determine whether the statutory conditions are met.

Section 91 should not be treated as applying merely because a document is absent from the evidence without considering whether it was called for and notice to produce was given.

4. Meaning of “shall presume”

Section 91 uses the words “shall presume”. Under Section 2 of the BSA, this directs the court to regard the relevant fact as proved unless and until it is disproved, or to require proof of that fact.

Unlike provisions using “may presume”, Section 91 makes the presumption mandatory when its statutory requirements are satisfied.

The presumption is nevertheless limited to the matters stated in the section: attestation, stamping and execution in the manner required by law.

What Does Section 91 Presume?

Section 91 addresses three aspects of a document’s formal execution.

Element	Meaning
Attested	The document is presumed to have been witnessed or attested in the manner required by law, where attestation is legally required.
Stamped	The document is presumed to have been stamped as required by the applicable law.
Executed	The document is presumed to have been executed in the manner required by law.

These presumptions concern formal regularity. They do not automatically establish that every statement in the document is true, that the document is admissible for every purpose or that a transaction recorded in it is legally enforceable.

Illustration of Section 91 BSA

Suppose A files a civil suit against B concerning a written agreement. During the proceedings, A formally calls upon B to produce the agreement and serves the required notice to produce it. B does not produce the document.

If the conditions of Section 91 are satisfied, the court shall presume that the document was attested, stamped and executed in the manner required by law.

However, this does not automatically establish that the contents of the agreement are true or that A is entitled to succeed in the suit. The relevant facts, the admissibility of any evidence tendered in place of the document and the legal effect of the agreement must still be considered under the applicable law.

Difference Between Section 91 BSA and Section 90 BSA

Section 90 concerns electronic messages, whereas Section 91 concerns documents not produced after notice to produce.

Basis	Section 90 BSA	Section 91 BSA
Subject	Presumption as to electronic messages	Presumption as to due execution of documents not produced
Trigger	A qualifying electronic message transmitted through an electronic mail server	A document called for but not produced after notice to produce
Main presumption	The message may be presumed to correspond with the message entered for transmission	The document shall be presumed to have been attested, stamped and executed as required by law
Sender or execution	The court cannot presume who sent the electronic message	The presumption concerns formal execution, stamping and attestation
Nature	Discretionary presumption	Mandatory presumption when statutory conditions are satisfied

The two provisions address different evidentiary problems and should not be confused.

Difference Between Section 91 BSA and Section 92 BSA

Section 91 deals with documents not produced after notice, while Section 92 concerns documents that are thirty years old.

Basis	Section 91 BSA	Section 92 BSA
Subject	Due execution of documents not produced	Presumption as to documents thirty years old
Main condition	The document was called for and not produced after notice to produce	A document purporting or proved to be thirty years old is produced from custody the court considers proper
Nature of presumption	Mandatory	Discretionary
Matters covered	Attestation, stamping and execution in the manner required by law	Handwriting, signature, and due execution and attestation in the circumstances stated in the section
Corresponding provision under the former Evidence Act	Section 89	Section 90

Section 92 requires the document to be produced from custody considered proper by the court. Section 91 instead focuses on the failure to produce a document after notice.

Also Read: Section 86 BSA: Presumption as to Electronic Records and Electronic Signatures

Important Case Law and Judicial Interpretation

Section 91 reproduces Section 89 of the Indian Evidence Act, 1872. Decisions concerning the predecessor provision can therefore be relevant to the corresponding principle, subject to the facts and applicable law.

However, the research for this article did not establish a sufficiently verified, directly on-point reported judgment interpreting the precise operation of Section 89 that would justify presenting a particular case as authoritative on Section 91. It is preferable to explain the provision from its statutory text rather than rely on judgments dealing with different presumptions, such as the presumption for documents thirty years old under former Section 90.

When researching a case under the predecessor law, ensure that it actually concerns Section 89 and the failure to produce a document after notice, rather than merely mentioning another provision of the Evidence Act.

Relationship Between Section 91 BSA and Section 64 BSA

Section 64 BSA deals with the rules relating to notice to produce. Section 91 operates where a document has been called for and remains unproduced after notice to produce.

These provisions are related but perform different functions:

• Section 64 addresses the rules governing notice to produce.
• Section 91 establishes the presumption concerning attestation, stamping and execution when its conditions are met.

The party relying on Section 91 must establish the circumstances necessary for the provision to apply. The presumption should not be invoked without examining whether the document was called for and the requisite notice was given.

Key Points for Law Students and Judiciary Aspirants

• Section 91 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the presumption as to due execution of documents not produced.
• It corresponds to Section 89 of the Indian Evidence Act, 1872.
• The document must have been called for and not produced after notice to produce.
• The court shall presume that the document was attested, stamped and executed in the manner required by law.
• The expression “shall presume” makes the presumption mandatory when the statutory requirements are satisfied.
• The presumption concerns formal execution and does not automatically establish the truth of the document’s contents.
• Section 64 BSA, which deals with notice to produce, is relevant to the application of Section 91.
• Section 91 should not be confused with Section 92 BSA, which concerns documents thirty years old.

Frequently Asked Questions (FAQs)

1. What is Section 91 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 91 provides that the court shall presume that a document was attested, stamped and executed in the manner required by law when it was called for but not produced after notice to produce.

2. Which section of the Indian Evidence Act corresponds to Section 91 BSA?

Section 91 BSA corresponds to Section 89 of the Indian Evidence Act, 1872.

3. Is the presumption under Section 91 mandatory?

Yes. The words “shall presume” make the presumption mandatory when the statutory conditions are satisfied, subject to the legal framework governing rebuttal and proof.

4. Does Section 91 prove that the contents of the document are true?

No. It concerns attestation, stamping and execution in the manner required by law. The truth of the contents and the legal effect of the document must be considered separately.

5. Is notice to produce necessary under Section 91?

Yes. The provision expressly applies to a document called for and not produced after notice to produce. Section 64 BSA contains the rules relating to notice to produce.

6. What is the difference between Sections 91 and 92 BSA?

Section 91 concerns the formal execution of a document withheld after notice to produce. Section 92 concerns documents thirty years old that are produced from custody the court considers proper and provides a different, discretionary presumption.

7. Does Section 91 apply whenever a document is missing from a case?

No. The statutory conditions must be met. The document must have been called for and not produced after notice to produce.

Conclusion

Section 91 of the Bharatiya Sakshya Adhiniyam, 2023 provides a mandatory presumption concerning the formal execution of documents that are called for but not produced after notice to produce. It presumes that such documents were attested, stamped and executed in the manner required by law.

The provision does not automatically prove the truth of the document’s contents or determine the outcome of the dispute. Its proper application requires attention to the notice-to-produce requirement under Section 64 BSA and the distinction between formal execution and proof of the facts asserted in a document.

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