A party serves formal notice demanding the other side produce a document central to the case. The other side simply does not produce it — no explanation, no objection, no alternative copy. Section 91 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) answers what happens next, and unlike the two presumptions on either side of it in this chapter, it leaves the court no discretion at all.
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.
Section 91 reproduces Section 89 of the Indian Evidence Act, 1872 without any wording change — confirmed against two independent bare-act sources.
"Shall Presume," Not "May Presume"
The distinction sits in a single word, but it changes the entire character of the provision. Section 92 and Section 93 of this Act, both covered in this project's earlier articles, use "may presume" — leaving the court discretion to decline the presumption if the circumstances warrant caution. Section 91 uses "shall presume." Once the precondition is met — a document was properly called for, notice to produce it was given, and it was not produced — the presumption of due attestation, stamping, and execution is not optional. The court has no room to weigh whether the presumption "feels" appropriate on the facts; the statute has already made that judgment for every case meeting the description.
The Mechanics: Notice to Produce
The provision only operates within a specific procedural sequence familiar to anyone conducting litigation involving documents held by an opposing party. Where a party believes the other side holds a document relevant to the case, that party can serve a formal notice demanding its production. If the document is then produced, its formal validity is proved (or disputed) in the ordinary way. If it is not produced despite the notice, the party who withheld it usually loses the ability to complain later that the document was not produced with proof of its execution — the calling party may instead lead secondary evidence of its contents, and whatever document does eventually surface or get described is treated, for the limited purposes this section covers, as though it had been duly attested, stamped, and executed exactly as the law requires.
The Policy Behind a Mandatory Rule
A discretionary presumption would leave room for a party to withhold a document strategically and then argue, case by case, that no presumption should follow — effectively rewarding non-production with a second layer of dispute over whether withholding should have consequences at all. Making the presumption mandatory removes that incentive entirely. A party who holds a document and chooses not to produce it after formal notice cannot also insist that its formal execution be independently proved through some other route; the two positions are treated as mutually exclusive by force of the statute itself.
How This Connects to the Rest of the Act's Approach to Withheld Evidence
Section 91's mandatory presumption is a narrower, document-specific instance of a broader theme running through this Act: withholding evidence a party could produce carries consequences. Section 119 BSA, covered earlier in this project's coverage of Chapter VII, allows a court to presume that evidence a person could produce, but does not, would be unfavourable to them if produced. Section 91 operates on a tighter, more specific footing — it does not merely permit an adverse inference about content, it fixes a particular formal presumption about execution as a matter of law, triggered by the specific procedural act of an unanswered notice to produce, rather than by non-production in general.
Key Takeaways
- Section 91 BSA carries forward Section 89 IEA verbatim — confirmed unchanged against two independent sources.
- It is a mandatory presumption ("shall presume"), unlike the discretionary presumptions in the surrounding Sections 92 and 93.
- It applies only where a document was formally called for through notice to produce, and the opposing party did not produce it in response.
- The presumption covers due attestation, stamping, and execution — not the truth of the document's contents, which still requires separate secondary evidence.
- It reflects the same underlying policy as Section 119 BSA's broader adverse-inference rule for withheld evidence, applied here in a narrower, execution-specific form.
Conclusion
Section 91 makes sure a party cannot benefit twice from withholding a document — once by keeping its contents out of evidence, and again by demanding strict formal proof of its validity from someone who never had custody of it. Anyone served with a notice to produce should treat the mandatory nature of this presumption as a genuine reason to comply, since ignoring the notice does not make the document disappear from the case — it simply hands the other side a legal shortcut past the very formalities non-production was meant to obstruct.