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Evidence Act 1950 [Act 56]

111 Proof of good faith in transactions where one party is in relation of active confidence

Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

ILLUSTRATIONS

(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.

(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.

112 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.

113 Presumption that boy under thirteen cannot commit rape

It shall be an irrebuttable presumption of law that a boy under the age of thirteen years is incapable of committing rape.

114 Court may presume existence of certain fact

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.

ILLUSTRATIONS

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 account 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;

(g) that evidence which could be and is not produced would if produced be unfavourable to the person who 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 unfavourable to him;

(i) that when a document creating an 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 the maxims do or do not apply to the particular case before it:

(i) as to illustration (a)-a shopkeeper has in his till a marked ringgit soon after it was stolen and cannot account for its possession specifically but is continually receiving ringgit in the course of his business;

(ii) as to illustration (b)-A, a person of the highest character is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done and
admits and explains the common carelessness of A and himself;

(iii) 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 implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;

(iv) as to illustration (c)-A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person completely under A's influence;

(v) 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;

(vi) as to illustration (e)-a judicial act, the regularity of which is in question, was performed under exceptional circumstances;

(vii) 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;

(viii) 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;

(ix) 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;

(x) 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.

114A Presumption of fact in publication

(1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

(3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

(4) For the purpose of this section-

(a) "network service" and "network service provider" have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998 [Act 588]; and

(b) "publication" means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.

Chapter VIII

ESTOPPEL

115 Estoppel

When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief he would have acted, neither he nor his representative in interest shall be allowed in any suit or proceeding between himself and that person or his representative in interest to deny the truth of that thing.

ILLUSTRATION

A intentionally and falsely leads B to believe that certain land belongs to A and thereby induces B to buy and pay for it.

The land afterwards becomes the property of A and A seeks to set aside the sale on the ground that at the time of the sale he had no title.

He may not be allowed to prove his want of title.

116 Estoppel of tenant and of licensee of person in possession

No tenant of immovable property, or person claiming through the tenant, shall during the continuance of the tenancy be permitted to deny that the landlord of that tenant had at the beginning of the tenancy a title to the immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that that person had a title to such possession at the time when the licence was given.

117 Estoppel of acceptor of bill of exchange, bailee or licensee

(1) No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw the bill or to endorse it.

(2) No bailee, agent or licensee shall be permitted to deny that the bailor, principal or licensor, by whom any goods were entrusted to any of them respectively was entitled to those goods at the time when they were so entrusted:

Provided that any such bailee, agent or licensee may show that he was compelled to deliver up any such goods to some person who had a right to them as against his bailor, principal or licensor, or that his bailor, principal or licensor wrongfully and without notice to the bailee, agent or licensee, obtained the goods from a third person, who has claimed them from that bailee, agent or licensee.

Explanation-The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.

Chapter IX

WITNESSES

118 Who may testify

All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation-A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them.

119 Dumb witnesses

(1) A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but the writing must be written and the signs made in open court.

(2) Evidence so given shall be deemed to be oral evidence.


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