Legal presumption
A legal presumption is a rule of law by which the court and Judges draw a particular inference from partucular fact or particular evidence untill the truth is proved. By this a fact is presuned to be truth but one can rebute it if bnot rebudte it will true. The law of evidence is the basic foundation of this term. This law has given power to the court to presume some fact as true.
For example: notification is published. Then it is presumed that this is duly signed by the authorised person.
Kinds of presumptinon:
Presumption can be divided into two types
1. Presumption of law
2. Presumption of fact
Kinds of presumption of Law
1. Conclusive presumption: it prevents the court to interfer to prove the fact. That means in this case if one fact is proved the other fact is conclusively proved. Lwa prohibits to provide the evidenceton the conyrtry.
For example:
According to section 112 of the evidensce Act if a child is born in the cotinuition of avalid marriage and within 280 days after dissolution, the child is legitimate.
Accordinfg to section 83 of the penal code 1860, a child under 7 years is conclusiveky presumed that he is incapable of commission of crime so his acts are not punishable.
2. Rebuttable presumption: A rebutable presumption is that where the court can interfare to prove. The parties are also allowed to provide the evidence to the contrry.
For example:
Accoeding to section 107 of the Evidence Act, 1872 if person is not heard for 7 years who would naturally to know but they do not know. He is presumed to be death but any one can prove his aliveness.
Legal fiction
According to Sir Henry Maine: a fiction is any presumption which concealsthe fact that the rule of law has undergone any alteration its letter remaining unchangedbut its operation being modified.
According to Salmond: Legal fiction is device by which law intentionally depats from the the truthof things.
Legal fiction is legal conflict. It changes the character of any thing though its reallity is in another character.
For example:
1. A limited company is by law a person though it is really not aperson.
2. An adopted child lost the original character of his original family but he accured the new identity.
