“Oral evidence cannot be substituted for the written evidence, of any contract which the parties have put into writing”. Explain and illustrate the principle of exclusion of oral by documentary evidence.

Question: “Oral evidence cannot be substituted for the written evidence, of any contract which the parties have put into writing”. Explain and illustrate the principle of exclusion of oral by documentary evidence. [H.R. 1996].

Find the answer to the mains question only on Legal Bites. [“Oral evidence cannot be substituted for the written evidence, of any contract which the parties have put into writing”. Explain and illustrate the principle of exclusion of oral by documentary evidence.]

Answer

Section 91 of the Indian Evidence Act deals with Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.

“When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

Exception 1: When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.

Exception 2: Wills admitted to probate in India may be proved by the probate.

Explanation 1: This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.

Explanation 2: Where there are more originals than one, one original only need to be proved.

Explanation 3: The statement, in any documents whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.”

Illustrations:

1. If a contract is contained in several letters, all the letters in which it is contained must be proved.
2. If a contract is contained in a bill of exchange, the bill of exchange must be proved.

1. Scope

There are some kinds of contracts, grants or other dispositions of property that can be created orally without any document. A sells a horse to B for Rs. 50. In this case, no written deed is necessary. A may take Rs. 50 and hand over the horse to B. Again suppose B agrees to mortgage his horse to A for Rs. 50. In this case, also no document is required. B may take Rs. 50 and deliver the possession of the horse to A. These transactions will be valid without any form of writing.

Contrary to this there are certain matters which are required by law to be in writing; there are some other matters which are required by law to be in writing and registered. For instance, the judgment and decrees in civil cases are required by law to be in writing.

Similarly, judgment and orders in criminal cases, depositions of witnesses in civil cases and criminal cases, examination of an accused person and many other things are required by law to be in writing. A mortgage or sale of immovable property for Rs. 100 or more can be affected only by the registered document.

2. Principle

Section 91 lays down that when the terms of the contract, grant or other disposition of properties (though they are not required by law to be in writing) have been reduced to a form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, the document itself is to be produced to prove the terms of such contract, grant or other disposition of property or the matter so required to be in writing, no doubt in proper cases secondary evidence may be adduced.

Section 91 is based on what is sometimes described as the “best evidence rule”.

The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents. In a sense, as held in Bai Hira Devi v. Official Assignee of Bombay, [AIR 1958 SC 448] the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the documents except in cases where secondary evidence is allowed to be led under the relevant provision of the Evidence Act.

3. Rules of exclusion of oral evidence by documentary evidence

Section 91 of the Evidence Act excludes admission of oral evidence for proving the contents of a document except in cases where secondary evidence is admissible. Section 92 excludes oral evidence to contradict the terms of a contract where the deed is proved. In a sense, the rule enumerated in these sections can be said to be an exclusive rule.

It is a cardinal rule of evidence, not one of technicality, but of substance, which it is dangerous to depart from, that where written documents exist, they shall be produced as being the best evidence of their own contents.

It is likewise, a general and most flexible rule, that whenever written instruments are appointed either by the requirement of law or by the contract of the parties, to be the repositories and memorials of truth, and other evidence is excluded from being used wither as a substitute for such instrument, or to contradict or alter them.

This is a matter both of principle and police; of principle, because such instruments are, in their own nature and origin, entitled to a much higher degree of credit than parole of evidence; of police, because it would be attended with great mischief if those instruments, upon which men’s rights depended were liable to be impeached by loose collateral evidence.

The same principle applies where private parties have by mutual contract, constituted a written document, the witness of their admission and intentions. Where the terms of an agreement are reduced to writing, the document itself, being constituted by the parties as to the exposition of their intention, is the only instrument of evidence in respect of that agreement which the law will recognize so long only it exists for the purpose of evidence.

Another rule which governs the production of evidence requires that the best evidence of which the case in its nature is susceptible should always be presented.

This rule doesn’t demand the greatest amount of evidence which can possibly be given of any fact; but its design is to prevent the introduction of any, which form the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud; for when better evidence is withheld; it is only fair to presume that the [arty has some sinister motive for not producing it and that if offered, his design would be frustrated.

To summarise:

1. Firstly, oral evidence cannot be substituted for an instrument that the law requires to be in writing.
2. Secondly, oral proof cannot be substituted for the written evidence of any contract which the parties have put in writing
3. Thirdly, oral evidence cannot be substituted for any writing, the existence or contents of which are disputed, and which is material to the issue between the parties and is not merely the memorandum of some other fact.

There are two exceptions to these provisions to the rule of exclusion of oral evidence by documentary evidence:

1. When a public officer is required by law to be appointed in writing, and any officer has acted as such, the writing need not be proved;
2. Wills admitted to probate in India may be proved by the probate.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
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8. Law of Evidence Mains Questions Series Part-VIII
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