CHANAKYA NATIOANL LAW UNIVERSITY
NYAYA NAGAR, MITHAPUR, PATNA-800001
“CONCLUSIVE PROOF”
FINAL DRAFT
SUBMITTED TO:
DR. MEETA MOHINI
(FACULTY OF LAW)
SUBMITTED BY:
NAME: AKASH ANAND
COURSE: B.B.A.,LL.B(Hons.)
ROLL NO: 1808
SEMESTER: 4TH
SUBJECT: LAW OF EVIDENCE
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ACKNOWLEDGEMENT
The present project on the “Conclusive proof” has been able to get its final shape with the support
and help of people from various quarters. My sincere thanks go to all the members without whom
the study could not have come to its present state. I am proud to acknowledge gratitude to the
individuals during my study and without whom the study may not be completed. I have taken this
opportunity to thank those who genuinely helped me.
With immense pleasure, I express my deepest sense of gratitude to Dr. Meeta Mohini, Faculty
for Evidence law, Chanakya National Law University for helping me in my project. I am also
thankful to the whole Chanakya National Law University family that provided me all the material
I required for the project. Not to forget thanking to my parents without the co-operation of which
completion of this project would not had been possible.
I have made every effort to acknowledge credits, but I apologies in advance for any omission that
may have inadvertently taken place.
Last but not least I would like to thank Almighty whose blessing helped me to complete the
project.
Akash Anand
Roll-1808, 4th Semester
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DECLARATION BY THE CANDIDATE
I, Akash Anand, student of Chanakya National Law University hereby declare that the work
reported in the BBA.LL.B.(HONS.) project report entitled: “(Conclusive Proof)”. submitted at
Chanakya National Law University, Patna is an authentic record of my work carried out under
the supervision of Dr.Meeta Mohini . I have not submitted this work elsewhere for any other
degree or diploma. I am responsible for the contents of my Project Report.
(Signature of the Candidate)
NAME: Akash Anand
ROLL NO: 1750
COURSE: BBA.LL.B. (Hons.)
SEMESTER: 2018-2019 (4th )
SESSION: 2017-2022
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1. INTRODUCTION
When one fact is declared by the Evidence Act to be conclusive proof of another, the Court must,
on proof of the one fact, regard the other proved, and cannot allow evidence to be given for the
purpose of disproving it.
Conclusive Proof: Conclusive presumptions are inferences which the law makes so
peremptorily that it will not allow them to be overturned by any contrary proof, however strong.
This is the strongest of all presumptions. Ss. 41, 112 and 113 of the Evidence Act and S. 82 of
the Indian Penal Code are Illustration tractions of irrebuttable presumptions. S. 41 lays down that
final judgments in probate, matrimonial, admiralty or insolvency jurisdictions are conclusive in
certain respects. S. 112 lays down that if a person is born during the continuance of a valid
marriage between his mother and any man, or within 280 days after its dissolution, the mother
remaining unmarried, then, unless non-access is proved, it is a conclusive proof of his
legitimacy. S. 113 lays down that a notification in the Official Gazette of a cession of territory to
a Native State is conclusive proof that a valid cession took place on the date mentioned in the
notification. Likewise, S. 82 of the I.P.C. lays down that nothing is an offence which is done by a
child who is under seven years of age.
Similarly, under the provisions of the Companies Act, the Certificate of the Registrar of
Companies is conclusive evidence that each subscriber wrote opposite his name in the
Memorandum of Association the number of shares taken by him.
Or again, the statement in an Order of a Court is conclusive of what happened before the
Presiding Officer of such Court. In all these cases, no party before the Court is allowed to
produce any evidence to disprove or displace such a presumption.
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METHOD RESEARCH
The researcher has adopted a purely doctrinal method of research. The researcher has made
extensive use of the library at the Chanakya National Law University and also the internet
sources.
SOURCES OF DATA
The researcher has relied upon both primary as well as secondary sources to complete the
project.
• Primary Source – Bare Act, Case Law
• Secondary Source – Newspaper, Article Internet
METHOD OF WRITING
The method of writing followed in the course of this research paper is primarily analytical.
AIMS AND OBJECTIVES
The researcher intends to do a critical analysis of Conclusive proof with respect to various
provisions of laws and cases.
HYPOTHESIS
The researcher presumes that Conclusive proof is the final proof after which no further argument
is required.
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TENTATIVE CHAPTERIZATION
1. INRTODUCTION
2. WHAT IS PRESUMPTION?
3. MAY PRESUME AND SHALL PRESUME IN CONCLUSIVE PROOF
4. RELATED SECTIONS OF CONCLUSIVE PROOF
5. CONCLUSION AND SUGGESTION
6. BIBLIOGRAPHY
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2. WHAT IS PRESUMPTION
In the law of evidence, a presumption of a particular fact can be made without the aid of proof in
some situations. The invocation of a presumption shifts the burden of proof from one party to the
opposing party in a court trial.
There are two types of presumption: rebuttable presumption and conclusive presumption. A
rebuttable presumption is assumed true until a person proves otherwise (for example
the presumption of innocence). In contrast, a conclusive (or irrebuttable) presumption cannot be
refuted in any case (such as defense of infancy in some legal systems).
Presumptions are sometimes categorized into two types: presumptions without basic facts, and
presumptions with basic facts. In the United States, mandatory presumptions are impermissible in
criminal cases, but permissible presumptions are allowed.
An example of presumption without basic facts is presumption of innocence.i
An example of presumption with basic facts is Declared death in absentia, e.g., the law says if a
person has been missing for seven years or more (basic fact), that person is presumed dead.
A conclusion made as to the existence or nonexistence of a fact that must be drawn from other
evidence that is admitted and proven to be true. A Rule of Law.If certain facts are established, a
judge or jury must assume another fact that the law recognizes as a logical conclusion from the
proof that has been introduced. A presumption differs from an inference, which is a conclusion
that a judge or jury may draw from the proof of certain facts if such facts would lead a reasonable
person of average intelligence to reach the same conclusion.
A conclusive presumption is one in which the proof of certain facts makes the existence of the
assumed fact beyond dispute. The presumption cannot be rebutted or contradicted by evidence to
the contrary. For example, a child younger than seven is presumed to be incapable of committing
a felony. There are very few conclusive presumptions because they are considered to be a
substantive rule of law, as opposed to a rule of evidence.
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A rebuttable presumption is one that can be disproved by evidence to the contrary. The Federal
Rules of Evidence and most state rules are concerned only with rebuttable presumptions, not
conclusive presumptions.
Presumption in the law of evidence, certain assumptions either of fact, judicial decision or statute
that must be rebutted, that is, controverted by evidence, or the assumptions will stand as effective
proof Presumptions in law include:
(i) presumption in favour of life;
(ii) presumption of ordinary physical condition;
(iii) pater est quem nuptiae demonstrant, or ‘the husband of the woman who has a child is presumed
to be the father’;
(iv) presumption of innocence in criminal cases and against wrongful acts in civil matters; omnia
praesumuntur rite et solemniter acta, or ‘a presumption in favour of regularity and validity’;
(v) presumption from business, such as donatio non praesumunitur, ‘that against donation’.
Both England and Scotland presume death in certain cases. In England a person is presumed dead
if he has not been heard of for seven years. In Scotland, the Presumption of Death (Scotland) Act
1977 provides that a person may be presumed dead if the court is satisfied that he has died or has
not been known to be alive for a period of at least seven years.
Presumptions of fact are really no more than cases where it is reasonable and likely that a court
will infer a state of affairs from other facts. Thus, a person in possession of recently stolen property
may be presumed to be the thief, but this can be rebutted by showing that he had found them and
was taking them to the nearest police station when apprehended. The maxim res ipsa loquitur (‘the
happening speaks for itself), once treated as a matter of law, is no more than a very strong
inference. If an accident happens, caused by something that is under the defender's control and in
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such a way that, if well operated, it should not have happened, then res ipsa loquitur ‘the incident
is eloquent of negligence’.
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3. MAY PRESUME AND SHALL PRESUME IN CONCLUSIVE
PROOF.
Whenever it is provided by this Act that Court may presume a fact, it may either regard such
fact as proved, unless and until it is disproved, or may call for proof of it:
Shall presume" – Whenever it s directed by this Act that the Court shall presume a fact, it shall
regard such fact as proved, unless and until it disproved;
Court may presume existence of certain acts
The court may presume the existence of any fact which it thinks likely to have happened, regard
being had to the common course of natural events, human conduct and public and private business,
in their relation to the facts of the particular case.
The Court may presume—
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has
received the goods knowing them to be stolen, unless he can accounts for his possession.
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration.
(d) That a thing or state of things which has been shown to be in existence within a period shorter
than that within which such things or states of things usually cease to exist, is still in existence;
(e) That judicial and official acts have been regularly performed;
(f) That the common course of business has been followed in particular cases;
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(g) That evidence which could be and is not produced would, if produced, be unfavorable to the
person withholds it.
(h) That if a man refuses to answer a question which he is not compelled to answer by law, the
answer, if given would be unfavorable to him;
(i) That when a document creating and obligation is in the hands of the obligor, the obligation has
been discharged.
But the Court shall also have regard to such facts as the following, in considering whether such
maxims do or do not apply to the particular case before it:-
As to illustration (a) –A shop- keeper has in his till a marked rupee soon after it was stolen, and
cannot account for its possession specifically, but is continually receiving rupees in the course of
his business;
As to illustration (b)–A person of the highest character is tried for causing a man’s death by an act
of negligence in arranging certain machinery. B, person of equally goods character, who also took
part in the took part in the arrangement, describes precisely what was done, and admits and
explains the common carelessness of A and himself;
As to illustration (b)-A person of the highest character is tried for causing a man’s death by an act
of negligence in arranging certain machinery B, person of equality goods character, who also took
part in the arrangement, describes precisely what was done, and admits and explains the common
carelessness of A and himself;
As to illustration (b)–A crime is committed by several persons. A, B and C, three of the criminals,
are captured on the spot and kept apart from each other. Each gives an account of the crime
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implicating D, and the accounts corroborate each other in such a manner as to render previous
concert highly improbable;
As to illustration (c) – A, the drawer of a bill of exchange, was a man of business. B, the acceptor,
was young and ignorant person, completely under A’s influence;
As to illustration (d) – It is proved that a river ran in a certain course five years ago, but it is known
that there have been floods since that time which might change its course.
As to illustration (e) – A judicial Act, the regularity of which is in question, was performed under
exceptional circumstances;
As to illustration (f) – The question is, whether a letter was received, it is shown to have been
posted, but the usual course of the post was interrupted by disturbances;
As to illustration (g) - A man refuses to produce a document which would bear on a contract of
small importance on which he is sued, but which might also injure the feeling and reputation of
his family;
As to illustration (h) – A man refuses to answer a question which he is not compelled by law to
answer, but the answer to it might cause loss to him in matters unconnected with the matter in
relation to which it is asked;
As to illustration (i) – A bond is in possession of the obligor, but the circumstances of the case are
such that he may have stolen it.
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DIFFERENCE BETWEEN ‘MAY PRESUME’ AND ‘SHALL PRESUME’.
May Presume:
1. The word “may” itself denote ‘expressing or seeking permission’. Example: “May I come in,
Sir.” Giving the permission depends upon the discretion of the teacher or boss, as the case may be.
“May presume” is based upon this concept.
2. The first clause of Sec. 4 of the Evidence Act defines “may presume”.
3. According to the first clause of Sec. 4, whenever it is provided by this Act that the Court may
presume a fact,—
(i) It may either regard such fact as proved, unless and until it is disproved; or
(ii) It may call for proof of it.
4. The word provided in the first clause is weaker than the word directed in the second clause.
5. The expression may presume gives a wide discretion to the Court,—
(i) To presume a fact as proved; or
(ii) To call for proof of it.
6. Sections 86 to 90-A, 113-A, 114 and 114-A of the Evidence Act provide the necessary
presumptions for “may presume”.
7. The presumptions under the first clause of Sec. 4 (May Presume) may also be called as
“Presumptions of Fact”; “Natural Presumptions”. “Permissive Presumptions”; “Rebuttable
Presumptions”.
8. These presumptions do not constitute a branch of jurisprudence.
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9. These are natural, permissive and rebuttable.
Shall Presume:
1. The word ‘shall’ itself denote a “strong assertion or intention or determination”. Example: “I
shall go to picture.” “Shall presume” is based upon this concept.
2. The second clause of Sec. 4 of the Evidence Act defines “shall presume”.
3. According to the second clause of Sec. 4, whenever it is directed by this Act that the Court shall
presume a fact, it shall regard such fact as proved, unless and until it is disproved.
4. The word directed in the second clause is stronger and determinative than the word provided
in the first clause.
5. The expression shall presume gives no discretion to the Court, but to accept a fact as proved,
unless and until it is disproved.
6. Sections 79 to 85-C, 89 and 105,111-A, 113-B of the Evidence Act provide necessary
presumptions for “shall presume”.
7. The presumptions under the Second Clause of Sec. 4 (Shall Presume) may also be called as
“Presumptions of Law”; “Artificial Presumptions”; “Obligatory Presumptions”; “Rebuttable
Presumptions of Law”.
8. These presumptions constitute a branch of jurisprudence.
9. These are artificial, obligatory and compelling.
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4. RELATED SECTIONS OF CONCLUSIVE PROOF.
According to Dictionary meaning "Conclusive proof refers to presumption which cannot be
overcome or changed by any additional evidence or argument.
According to Section 4 of the Indian Evidence Act, 1872 “Conclusive proof” – Where one fact
is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact,
regard the other as proved, and shall not allow evidence to be given for the purpose of disproving
it.
Example -
'ABC' and 'XYZ' are married but divorced. In this case, when the question arises whether
'ABC' and 'XYZ' are husband and wife if the decree of divorce is submitted to the Court, The
court shall presume that they are no longer husband and wife from the date of such decree of
divorce.
In the above example, the Divorce decree is regarded as Conclusive proof.
Provisions relating to conclusive proof or Irrebuttable presumptions of law -
Section 41, Section 112, and Section 113 of the Indian Evidence Act,1872 speaks about
conclusive proof or Irrebuttable presumption of law as stated below -
Section 41 the Indian Evidence Act,1872 deals with "relevancy of certain judgments in probate,
etc jurisdiction"
Section 112 of the said Act, deals with " Birth during marriage, conclusive proof of legitimacy"
Section 113 of the Indian Evidence Act, deals with "Proof of cession of territory"
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Section 41 of the Indian Evidence Act -
Relevancy of certain judgments in probate, etc. jurisdiction –
A final judgment, order or decree of a Competent Court, in exercise of probate, matrimonial,
admiralty or insolvency jurisdiction, which confers upon or to take away from any person any legal
character, or which declares any person to be entitled to any such character, or to be entitled to any
specific thing not as against any specified person but absolutely, is relevant when the existence of
any legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof -
That any legal character which it confers accrued at the time when such judgment, order or
decree come into operation;
That any legal character to which it declares and such person to be entitled, accrued to that
person at the time when such judgment, order or decree declares it to have accrued to that person;
That any legal character to which it takes away from any such person ceased at the time from
which such judgment, order or decree declared that it had ceased or should cease.
And that anything to which it declares any person to be so entitled was the property of that
person at the time from which such judgment, 1order or decree declares that it had been or should
be his property.
A final judgment, order or decree of a competent Court, in the exercise of its.
(i) Probate,
(ii) Matrimonial,
(iii) Admiralty, or
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(iv) Insolvency jurisdiction
Not against any specified person, but absolutely (i.e., in rem)
Is conclusive proof—
(a) That any legal character
(i) Which it confers, accrued at that time when such judgment, decree or order came into
operation;
(ii) Which it declares any such person to be entitled to, accrued to him at the time when such
judg-ment, decree or order declares it to have accrued to him;
(iii) Which it takes away from any person, ceased at the time from which such judgment, decree
or order declared that it had ceased or should cease;
(b) That anything to which it declares any person to be entitled was his property at the time from
which such judgment, decree or order declares that it had been or should be his property.
Section 112 of the Indian Evidence Act -
Birth during marriage, conclusive proof of legitimacy -
The fact that any person was born during the continuance of a valid marriage between his
mother and any man, or within two hundred and eighty days after its dissolution, the mother
remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it
can be shown that the parties to the marriage had no access to each other at any time when he could
have been begotten.
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The fact that any person was born—
(1) During the continuance of a valid marriage between his mother and any man, or
(2) Within two hundred and eight days after its dissolution (the mother remaining unmarried), is
conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties
to the marriage had no access to each other at any time when he could have been begotten.
Scope of Section 112:
Evidence that a child is born during wedlock is sufficient to establish its legitimacy, and shifts the
burden of proof to the party seeking to establish the contrary.
Sections 41, 112 and 113 (discussed later) are the only sections which deal with matters which are
to be regarded as “conclusive proof”. No rule of the kind can be based on considerations of
evidence, because enquiry is altogether excluded.
The basis of the rule contained in S. 112 seems to be that it is undesirable to enquire into the
paternity of a child whose parents have access to each other. This section refers to the point of time
of the birth of the child as the deciding factor, and not to the time of conception of that child; the
latter point of time has to be considered only to see whether the husband had no access to the
mother.
The presumption as to paternity in this section arises only in connection with the offspring of a
married couple. The section applies to the legitimacy of the children of married persons only. On
the birth of a child during marriage, the presumption of legitimacy is conclusive, no matter how
soon the birth occurs after the marriage.
Under the section, a child born in wedlock should be treated as the child of the father who was at
the time of its birth, the husband of the mother, unless it is shown that he had no access to the
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mother at the time of its conception, irrespective of the question whether the mother was married
or not at the time of the conception.
The presumption contemplated by this section is a conclusive presumption of law, which can be
displaced only by proof of the particular fact mentioned in the section, namely, non-access between
the parties to the marriage at a time when, according to the ordinary course of nature, the husband
could have been the father of the child. (Venkateswarlu v. Venkatnarayan, A.I.R. 1954 S.C. 176)
The word “access” means effective access as is shown by the use of the words “when he could
have been begotten”, and physical incapacity to procreate amounts to non-access within the
meaning of this section. (Bhagwan Bakhsh v. Mahesh Bakhsh, A.I.R. 1935 P.C. 199)
In a case decided by the Kerala High Court, the facts were interesting: A wife had become pregnant
after her husband had undergone a vasectomy operation. The husband alleged that she had
conceived because of illicit intercourse, and claimed to be entitled to a decree for divorce on this
ground.
The success of the operation was not proved before the Court. Nor was any case made out by the
husband that he had no sexual intercourse with the wife during the period when she could have
conceived. Also, the allegation of illicit relations was not repeated by the husband on oath when
in the witness box.
Taking all these circumstances into consideration, the Court held that the presumption would be
that the husband was the father of the child. No decree for divorce was, therefore, passed in his
favour. (Chandramathi v. Pazhetti Balan, A.I.R. 1982 Ker. 68)
The Calcutta High Court has held that the paternity of a child born during lawful wedlock cannot
be decided by a blood group test, in view of the provisions of S. 112. (Tushar Roy v. Sukla Roy,
1993, Cri. L.J. 1659)
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The principle of this section does not apply to the case of a paramour, and the presumption can be
rebutted when the mother of child is not the wife, but a mistress, and it would be open for the
mistress to prove that the real father of the child born during the period of her concubinage is
different from the paramour.
A wife can be examined to prove non-access of her husband during her married life, without
independent evidence being first offered to prove the illegitimacy of the children. She is a
competent witness to prove access or non-access by her husband.
In a leading case, Russell v. Russell (1924 A.C. 687), it has been laid down that neither the
declarations of the wife, nor her testimony that the child was the child of a man other than her
husband are admissible, nor of the husband that he was not the father of the child.
The Allahabad High Court has held that the English rule that such evidence is inadmissible because
it is evidence which tends to bastardize the child is not applicable to the Courts in India; there is
nothing in the Indian Evidence Act which renders this evidence inadmissible.
In a suit for divorce by the husband on the ground of the wife’s adultery, alleged to be established
by the fact of her having given birth to an illegitimate child, evidence by the husband of non-access
to the wife, at any time when the child could have been begotten is admissible, and an admission
by the wife that the child is illegitimate is also admissible in evidence.
Section 113 of the Indian Evidence Act -
Proof of cession of territory
A notification in the Official Gazette that any portion of British territory has before the
commencement of Part III of the Government of India Act,1935, (26 Geo. 5 Ch. 2) been caddied
to any Native State, Prince or Ruler, shall be conclusive proof that a valid session of such territory
took place at the date mentioned in such notification.
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5. CONCLUSION AND SUGGESTION
Discretionary presumptions are those presumptions in which court will presume a fact to be
proved until it is disproved or may call proof upon it. In the case of such presumptions the court
has the choice to decide whether to raise the presumption or not.
Discretionary presumptions given under Section 86 to 88-A and Section 90-A are self
explanatory in nature. However with respect to the interpretation of Section 90 there is lot of
questions. First issue is on how the period of 30 years is calculated to find out if a document is
30 years old or not. According to the current position of law to find whether a document is
thirty years or not the period has to be calculated from the date of execution of the document
and not from the date which the document is filed in court. Next there is the issue as to whether
the mere production of the document would enough to attract section 90. According to the
present position of law mere production is not enough the production has to be from proper
custody. Proper custody of a document means that the document is possession of such a person
that it does not bring about any suspicion fraud or doubt. Proper custody does not mean most
proper place for the document to be deposited it just requires that there should be a sufficient
explanation about the origin of the document. Proper custody thus means the document should
be in such a place or with such a person where or in whose possession can be reasonably
expected to be. The third issue is on whether section 90 is applicable to copies of document.
The current position of law is that Section 90 is applicable to only original documents and not
to copies of documents. However in copies of documents(whether certified copies or registered
copies) which can be admitted as secondary evidence under Section 65 which is over 30 years
old and is produced from proper custody only the signature which authenticates the document
can be presumed to be genuine and not the execution of the said document. Certified copies
are admissible to prove the contents of the original document if the original document is proved
to be lost in proper custody or it is in the possession of the adverse party. But these certified
copies do not prove the execution of the original documents only the contents of the same. The
next issue is on whether documents with respect to which presumption under Section 90 can
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be raised should be signed. The current position of law is that only the documents which are
signed attract the presumption under Section 90. If the document does not have a signature then
Section 90 is not applicable. Signature here includes thumb impressions but does not include
seals.
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6. BIBLIOGRAPHY
• https://www.lawteacher.net/free-law-essays/contract-law/presumptions-as-to-indian-
evidence-act-documents-contract-law-essay.php#ftn30
• http://www.shareyouressays.com/knowledge/useful-notes-on-conclusive-proof-
section-4-of-india-evidence-act-1872/119223
• http://www.shareyouressays.com/knowledge/conclusive-proof-under-the-indian-
evidence-act-1872/119155
• https://indiankanoon.org/doc/1953529/
• https://www.srdlawnotes.com/2018/03/conclusive-proof-or-irrebuttable.html
• https://definitions.uslegal.com/c/conclusive-evidence/
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