Exclusion of Oral evidence by Documentary Evidence

This article titled ‘Exclusion of Oral evidence by Documentary Evidence’ is written by Aritra Sarkar and discusses the exclusion of oral evidence.

I. Introduction

Section 91 to 100 of the Indian Evidence Act, 1872 lays down provisions relating to exclusion of oral by documentary evidence. This rule is based on the principle that the best evidence, of which the case in its nature is susceptible, should always be presented. It is adopted to prevent fraud, for, when better evidence is withheld, it is only fair to presume that the party has some sinister motive for not producing it, and that, if offered, his design would be frustrated.

II. Best Evidence Rule

Section 91 and 92 deal with the best evidence rule. however, the term best evidence rule is not explicitly written anywhere in the Indian Evidence Act, 1872.

1. Section 91

Section 91 of the evidence act says that whenever there is a question regarding a document then the documents shall be given in prove by producing the original copy of the documents before the court. The rule enunciated by section 91 is an exclusive rule as it excludes the use of oral evidence for the proof of the contents of the documents except in cases where secondary evidence is applicable for the proof of the documents.

This principle is made so strict and inflexible because the main essence of written documents is that in time of dispute the written documents can be produced as evidence. But if secondary evidence or oral evidence is made admissible in the case of the original documents then the whole purpose of the written document is destroyed. So, the best evidence rule imbibed in section 91 of the evidence act is said to be the most inflexible. However, one important thing to note is that section 91 applies only to contracts, grants and dispositions[1].

The first explanation in this section says that where there is more than one document to prove a contract, grant or disposition then each and every document needs to be proved and the proof must be with the original document i.e. primary evidence or by secondary evidence where secondary evidence will be applicable.

The second explanation says that if there is more than one original for a single contract, grant or disposition then proving only one document will be sufficient. An example is the bills of exchange of which three are usually exchanged and also the bills of lading which are usually executed in duplicates and sometimes in triplicates. Where the document listed is in several parts each part is the primary evidence of the document.

The third explanation to the section says that when there is a question of evidence other than that of (i) contract, grant and disposition of property and (ii) matters required by law to be reduced to writing then the rule will not apply and any kind of evidence will be admissible. For example, the contract of marriage is not signed by either of the contracting parties but it is in the nature of a memorandum prepared by Nikah khwan, then it is open to one of the parties to prove by other evidence, oral or documentary, that he or she has been married and also the terms. This was observed in Aimna (Mst.) v. Lakhmi Chand[2].

Section 91 applies to third parties too. It was said by the high court of Madras in the case of Meenakshisundaram Pillai v. S.T. Chenchu Mudaliar[3] that if a third person wants to establish a particular contract between two or more parties when the contract is in the form of writing or when under law such contract has to be in writing he can do so only by the production of such writing.

In the case of Punjab National Bank Ltd. v. Mathra Das[4], it was said that the date of a document is not a term of the contract and so oral evidence for proving that the document was drafted at a particular date or for proving that the document was not written at a particular date of a contract can be given and it will be admissible.

Section 91 of the evidence act mainly says that we should produce the original document for proving the contents of the same but however, it does not prohibit the parties to adduce some evidence in case the deed is capable of being construed differently for proving the way they understood it as said in the case of Tulsi v. Chandrika Prasad [5]. Oral evidence can also be given in order to show that the recitals in a deed are nominal and they are not actually intended to be acted upon or it was not the intention of the parties to alter the existing state of affairs.

In the case of State bank of India v. Mula Shakari Sakhar Karkhana Ltd.[6] it was held that the court will judge the nature of the transaction by terms and conditions of the contract together with the surrounding and the attending circumstances only in a case where the document suffers from some type of ambiguity. Where no such ambiguity occurs regarding the document the court will not take such recourse.

In the case of Hans Raj Agarwal v. CIT[7], the Supreme court held that the partition of property can be done orally. Where a document is drafted and the document clearly says without any ambiguity and in unmistakable terms that it is a deed of partition and that the parties have secured their entitlement of the property and consented to it then it cannot be held that the document is not the deed of partition and the same can be interpreted in some other way. The provisions of this section do not permit such interpretation of documents where there is no ambiguity whatsoever in the document in question.

The Delhi high court said in the case of Aktiebolaget Volvo v. R. Venkatachalam that in case a party will suffer irreparable damages on the loss of the original document, in that case, the original document can be kept in the custody of the party rather than its own custody but they will be subject to frequent inspection by the court[8]. The reason cited by the court was that while the courts work in too much time constraint and there are always so many document transactions going on in the court that the question of safety of the documents in the court becomes questionable. Further, the parties will get the documents that can be received by the parties only under order 13 rule 9 of the CPC[9].

In the case of Meer Mohammed Kajen Jowhurry v. Khetoo Debee[10], it was said that the rule with regard to writings is that oral proof cannot be substituted for written evidence of any contract which the parties have put into writing. The reason is that writing is considered by the parties as the only repository and appropriate evidence of their agreement.

Regarding confessions, the court said in the case of Emperor v. Gulabu[11] that a confession made by an accused person in front of a magistrate is a matter that is required by law to be written and recorded in the form of a document and no evidence will be admissible of the terms of such a confession except those written records.

The supreme court in the case of Fort Gloster Industries v. Sethia Mercantile Pvt. Ltd.[12] that the court could not refer to any evidence other than the documents relating to the arbitration agreements to determine the question of whether arbitration could be invoked for settlement of disputes. The court further said that the terms of the arbitration contract which are required in writing cannot be further proved other than by producing the original document for purposes of evidence. Therefore, the court said that a xerox copy of the document and oral evidence will not be applicable for proving the contents of the document.

In the case of Md. Daud v. Abu Mohammad[13] the Patna high court said that when there was a written compromise between two parties then the introduction of a new term by way of oral evidence will not be permissible under section 91 and if a party wants to do the proof of terms he can do it only by filing a compromise deed and not by giving oral evidence.

A wakf can be created orally under the Muhammadan Law but in the case of Shaikh Muhammad Ibrahim v. Bibi Mariam[14], the Patna high court said that if the terms of the wakf is written in the form of writing then no other evidence can be given other than that the original document or a secondary evidence is admissible.

2. Section 92

Section 92 of the Indian evidence act supplements the previous section. Section 92 provides that no oral evidence or statement for varying, contradicting, adding or subtracting can be admissible on any matter with respect to the contract, grant, or any other disposition of property and have been proven in the court by the production of the original or by producing secondary evidence.

When a transaction has been reduced to writing whether by the requirement of law or by the agreement between the parties then no extrinsic evidence to prove, contradict, vary, add or subtract from the terms of the document will be admissible.

The grounds of exclusion of extrinsic evidence are discussed in the case of Roop Kumar v. Mohan Thedani[15]. The Supreme court of India in the case said that “The grounds of exclusion of extrinsic evidence are

1. to admit inferior evidence when the law requires superior would amount to nullifying the law,
2. when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a fall and final statement of their intentions and one which should be placed beyond the reach of future controversy, faith and treacherous memory.”

However, sections 91 and 92 will only apply if it is seen on the face of it that the whole transaction is documented. in order to attract the section, the whole contract should be documented. If some part of the contract is in documented form and the other part is in the oral form then this section won’t apply as the writing cannot be considered as the final depository of the condition agreed to by the parties. In case there is no signature or proposal or acceptance date in the document but all the terms are there, even then the sections would apply as the sections demand “all the terms” and not the whole contract in the sense of signature dates etc. it was said by the High Court of Nagpur in the case of Balram Baoji Nasare v. Mahadeo Panduji[16].

The burden of proving that all the terms of the contract, grant or disposition are in the document is on the party who asserts it.[17] But if the parties intended to put only a portion of the transaction in the documented form then the parties are eligible to give oral evidence for the undocumented portion of the transaction as was said in the case of Jamna Doss v. Srinath Roy[18].

When the whole contract has not been reduced to writing, for example, the writing is in the form of the memorandum the other evidence can be produced to prove the contract as was said in Sunder Singh v. Ram Saran Das[19].

In Bai Hira Devi v. Official assignee of Bombay[20], the Supreme Court of India established that section 91 is in consonance with the best evidence rule. In this case, the supreme court has established the difference between sections 91 and 92 of the evidence act. It said that the documents are to be proved in the court according to section 91 and it is only after the documents have been established in the court that section 92 comes into play for the purpose of excluding any oral agreement or statement for the purpose of subtracting, varying, adding or contradicting any term of the evidence. Section 91 and 92 in effect supplement each other.

The court also said that Section 91 applies to all documents whether any purport to particular rights or not but section 92 applies only to documents which can be described as dispositive. Section 91 applies to both bilateral and unilateral documents and section 92 depends only on bilateral documents. The rule in section 91 is universal and is not confined to the executant or executants of the documents but section 92 depends only on the parties to the documents or their representatives in interest.

III. Exceptions

Exceptions to the best evidence rule are given in section 91. The first exception says that for proving the appointment of a public officer no appointment documentation is required whoever is acting as the public officer will be taken to hold such office. It is a prima facie presumption of law that a person has been duly appointed if he has been acting in his official capacity. As it cannot be supposed that any man would venture to intrude in some public situation which he is not authorized to fill[21].

In the second exception, it is written that wills can be proved through a certified copy (secondary evidence) of the same and the stringent conditions of section 91 will not apply to it.

Exceptions to section 92 of the evidence are given in the provisos of section 92.

1. Firstly, the proviso says that any fact such as fraud, intimidation, illegality, failure of consideration etc. which can be proved to invalidate any document or entitle any person to any decree or order can be proved by giving oral evidence.
2. Secondly, if there is any separate legal agreement on any matter in which the original document is silent or regarding anything which the document is inconsistent can be proved.
3. Thirdly, any separate oral agreement which is having a condition that affects any obligation construed by the original document can be proved.
4. Fourthly, any subsequent oral agreement to modify any contract, grant or disposition of property may be proved except when such contract or grant is required in writing or has already been registered.
5. Fifthly, if there is any usage or customs through which incidents that are not expressly mentioned in a contract are usually annexed to the contract if they are not repugnant to the express terms of the contract. Such customs or usages may be proved. Lastly, any fact that can show the manner in which the language of the documents is in relation to existing facts may be proved.

Some special legislations exclude the applicability of section 91 and section 92 of the Indian evidence act. Section 12(1) of the Kerala land reforms act, 1963 removes the stringent conditions imposed by the two sections in the interpretation of documents. In cases where section 12(1) of the Kerala land reforms act will not apply sections 91 and 92 will have to be applied as observed in the case of K.K. Nambiar v. Kurup.[22]

Section 6 of the Hyderabad Land Alienation Restraint Act is having a provision that makes it mandatory to create an exception to the general rule of section 92 of the Indian evidence act. The plea of estoppel under section 115 of the evidence act would only apply when the representation is in written form in case it is in an oral form then section 115 of the evidence act will not apply. It will be incorrect to assume that section 92 is a procedural law and section 115 is substantive law, both the sections can operate if they are read together.

Moreover, in the case of Ranbaxy Laboratories Ltd. v. Doon Apartments (P) Ltd.[23] it was observed that there is no provision under section 115 to show that it can override section 92 of the evidence act.

IV. Proof of patently ambiguous documents

There are two kinds of ambiguity of words, one is patent ambiguity and the other one is latent ambiguity. Sections 93 and 94 deal with documents that are patently ambiguous[24]. Patent ambiguity means ambiguity in the face of it. Latent ambiguity means that a document is not ambiguous in the face of it, however, there is some collateral matter that makes the document ambiguous.[25] It is dealt with in sections 95 to 98.

1. Section 93

Section 93 says that for the documents which are ambiguous in the face of it, we need not give any evidence to prove the to show its meaning or supply its defects.

For example, if there is a deal between ‘A’ and ‘B’ for buying a horse for ₹1000 or ₹2000 then the evidence can not be given to show what price was actually meant to be given since the document is ambiguous in its face [Illustration].[26]

The removal of vagueness by giving extrinsic evidence is prohibited in this section because if the court would allow that it will essentially mean that the parties are making a new contract. This was observed in the case of Lallubhai Patel v. Lalbhai Trikumlal Mills[27].

In the case of Food Corpn. of India v. Birendra Nath Dhar[28] the column for transport charges was left blank. The oral evidence by the parties to show that there was actually an agreement was not accepted, since blanks can not be filled by giving oral evidence.

2. Section 94

It says that when a document is plain in itself and when it applies to the existing facts accurately then the evidence can not be given to show that the document was meant to be applied differently or it was not meant to be applied in such a way to those facts.[29]

For example, if ‘A’ says to ‘B’ “my estate at Rampur of 100 bighas”. A is having an estate at Rampur of 100 bighas. In such a case evidence can not be given saying that it was meant to be for an estate at a different place and of different size [Illustration].[30]

The principle behind this section is that the words of a written document have to be construed only according to their natural meaning and no acts of the parties can alter or qualify the words which are plain and unambiguous. In North Indian Railways v. Hastings (Lord)[31] the same principle was upheld, it was said that if the written statements are plain and unambiguous, then it must be construed according to the plain and unambiguous language of the states themselves.

This section applies only when the execution of the document is admitted and when there are no vitiating circumstances against it.

V. Proof of latently ambiguous documents

As already mentioned above latent ambiguity is dealt with in sections 95 to 98.

1. Section 95

This section says that if the facts in the document are plain in itself but it doesn’t make sense with the facts then the evidence can be given to show that the document was mean to be used in a peculiar sense.[32]

This section is based on the principle of “falsa demonstratio non nocet” which means that a false description does not vitiate the document.

In a case where the sale deed stated wrong survey numbers then extrinsic evidence is admissible which shows that the survey numbers are actually meant to be different[33].

2. Section 96

This section says that when the language of the document was given in such a way that it might have been applied to anyone but it was meant to be applied to only one then evidence to show which one it was supposed to be applied is admissible. [34]

For example, it was written in the sale deed that ‘A’ intended to sell ‘B’ his white horse, however, ‘A’ is having 2 white horses so evidence can be given to show which white horse ‘A’ meant to sell [Illustration].[35]

3. Section 97

When the language of the document is applicable partly to one set of facts and partly to another set of facts but the whole of it does not apply to anyone one of them correctly then evidence may be given to show which fact it was meant to be applied to.[36]

For example, ‘A’ agrees to sell to ‘B’, “my land at X in the occupation of Y”. A has landed at X, but not in the occupation of Y, and he has landed in the occupation of Y but it is not at X. Evidence may be given of facts showing which he meant to sell [Illustration].[37]

4. Section 98

This section says that evidence can be given to show the meaning of illegible or not commonly intelligible characters of: –

1. Foreign,
2. Obsolete,
3. Technical, and
4. Local and provincial expressions, abbreviations and words are used in a peculiar sense.[38]

For Example, A, a sculptor, agrees to sell to B, “all my mods”. A has both models and modelling tools. Evidence may be given to show which he meant to sell [Illustration].[39]

In the cases mentioned above, it only explains the meaning of the expression used, it can not be said to vary the written statement. Where there is a popular or common word mentioned in the document, it will have to be construed in its popular meaning. If a word of technical or legal character is used then the meaning of the word has to be construed in its technical or legal sense.

If evidence needs to be given of the secondary meaning of a word then first it needs to be proved that the word is supposed to be used in its secondary meaning and not in its primary meaning. It was said in the case of Holt and Co. v. Collyer.[40]

In the case of State of Bihar v. Radha Krishna Singh[41] where a document was written in an uncommon or foreign language, it was said that the court can rely upon the judge to decipher the language and the meaning of the words like ‘Huzoor’, ‘buzurgan’, ‘moris’, ‘biradari’, ‘minjoomle’ requisite of the context.

5. Section 99

Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.[42] This section is explained very well in its illustration.

‘A’ and ‘B’ makes a contract of selling cotton and then they made an oral agreement that 3 months credit will be given to ‘A’. This could not be shown as between ‘A’ and ‘B’, but it might be shown by ‘C’ if it affected his interests [Illustration].[43]

In section 92 oral evidence by the parties to a contract is prohibited but the principle in section 92 does not apply to third parties. Oral evidence by third parties is made applicable by this section. this section distinctly provides that people who are not parties to a document may give evidence tending to show a contemporaneous agreement varying the terms of the document. This was observed in the case of Bageshri Dayal v. Pancho.[44]

In that case, one-fourth of the price of a house alleged to have been sold by the plaintiff was claimed. The claim was based on a custom. The first defendant alleged that it was not a sale but a usufructuary mortgage. It was said that since the plaintiff was not a party to the transaction of the alleged sale, he was entitled to give evidence if it was a sale or not.

In a case of alienation of land in which a document was executed as a gift deed or mortgage. The claim of the plaintiff was that the transaction was in fact of a sale and the document was executed in the name of gift deed or mortgage in order to conceal its true nature. It was held that a third party purporting to exercise some rights in the land can prove the transaction was, in reality, a sale or not.[45]

6. Section 100

It says that nothing in Chapter 6 contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills.[46]

Edited by- Akriti

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References

[1] Indian Evidence Act 1872, s 91

[2] Aimna (Mst.) v Lakhmi Chand 1934 L 705

[3] Meenakshisundaram Pillai v S T Chenchu Mudaliar AIR 1928 Mad 459

[4] Punjab National Bank Ltd v Mathra Das 1933 L 194

[5] Tulsi v Chandrika Prasad AIR 2006 SC 3359

[6] State bank of India v Mula Shakari Sakhar Karkhana Ltd (2006) 6 SCC 293

[7] Hans Raj Agarwal v CIT (2003) 2 SCC 295

[8] Aktiebolaget Volvo v R Venkatachalam (2009) ILR 6 Delhi 233

[9] The Code of Civil Procedure 1908, Order 13 r 4(1)

[10] Meer Mohammed Kajen Jowhurry v Khetoo Debee 10 WR 150

[11] Emperor v Gulabu ILR (1913) 35 All 260

[12] Fort Gloster Industries v Sethia Mercantile Pvt Ltd AIR 1971 SC 2289

[13] Md Daud v Abu Mohammad AIR 1961 Pat 310

[14] Saikh Muhammad Ibrahim v Bibi Mariam ILR (1928) 8 Pat 484

[15] Roop Kumar v Mohan Thedani AIR 2003 SC 2418

[16] Balram Baoji Nasare v Mahadeo Panduji AIR 1949 Nag 389

[17] U Sin v U Tua Si

[18] Jamna Doss v Srinath Roy ILR (1889) 17 Cal 176n, 177

[19] Sunder Singh v Ram Saran Das

[20] Bai Hira Devi v Official assignee of Bombay AIR 1958 SC 448

[21] Chief Justice M Monir, Law of Evidence, vol 2 (15th edn, Universal 2010)

[22] K Nambiar v Kurup AIR 1970 Ker 16

[23] Ranbaxy Laboratories Ltd v Doon Apartments (P) Ltd ILR (1979) 1 Del 84

[24] The law of evidence R&D

[25] ibid

[26] Indian Evidence Act 1872, s 93

[27] (1958) SCJ 866

[28] AIR 1989 NOC 119 (Cal)

[29] Indian Evidence Act 1872, s 94

[30] ibid

[31] (1900) AC 260, 263

[32] Indian Evidence Act 1872, s 95

[33] Karuppa Goundan alias Thoppala Goundan v. Periathambi Goundan,

[34] Indian Evidence Act 1872, s 96

[35] Ibid

[36] Indian Evidence Act 1872, s 97

[37] Ibid

[38] Indian Evidence Act 1872, s 98

[39] Ibid

[40] (1881) 16 Ch D 718, 720

[41] AIR 1983 SC 684

[42] Indian Evidence Act 1872, s 99

[43] Ibid

[44] (1906) 28 All 473

[45] Tara Chand v. Baldeo

[46] Indian Evidence Act 1872, s 100

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