The concept of Best Evidence Rule and its evolution in India

This article on ‘The concept of Best Evidence Rule and its evolution in India’ is written by Aritra Sarkar and discusses the concept of Best Evidence Rule.

I. Introduction

Best evidence rule means that for the purposes of evidence the original copy of a writing or recording or photograph must be produced before a court in order to prove its content rather than producing a copy of the same unless it is unavailable[1].

In the medieval period, the pre-Roman inhabitants thought that originally written documents are not mere indicia of rights but the rights themselves[2]. This mindset eventually dissipated in 1800 when the doctrine of profert in curia spread in the evidence law.

The doctrine of profert in curia is closely related to the best evidence rule. In the case of profert in curia if the party is unable to provide for the original written documents then he will lose all the rights created by the document. The best evidence rule is also called the ‘original document rule’, which says that the party has to produce the original document and in case he is not able to provide for the original document he has to account for the same[3]. If the proponent cannot show the original document nor can he account for the non-production he was not allowed to give evidence through secondary sources such as a handwritten copy.

The best evidence rule was first known to have enunciated in the case of Ford v. Hopkins[4] in 1700 and Omychund v. Barker[5] in 1745 where Lord Hardwicke said that “no evidence will be admissible unless it is the best evidence that nature will allow”. The rule originated because in that period document copying was done by the court clerks manually and there was always a significant chance of error in the copied document[6].

However, in the 20^th century, a huge advancement in the development of technology was seen and with the development of printing machines, xerox machines and computers. Since now the originals can be reproduced without the fear of errors exceptions of the best evidence rule began to develop.

The best evidence rule is used nowadays to decide the genuineness of the documents shows in the court. In civil cases very frequently, we can see that documents need to be produced before the court by the parties. Such documents need to be marked by the courts as exhibits before the court can take into account those documents[7]. At first, the court needs to make sure about the genuineness of those documents before taking it as evidence [8].

In the case of Bank of Baroda v. Shree Moti Industries ltd.[9] the Bombay high court while speaking about the quality of evidence said that if a party is known to have possession of the original document, the same has to be produced before the court.

II. Application of Best Evidence Rule in India

In India, the best evidence rule is not particularly mentioned anywhere but it is the basis of sections 91 and 92 of the Indian Evidence Act 1872. The principle can also be seen imbibed in sections 60 and 64 of the Indian evidence act.

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[10].

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.
2. 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.
3. The third explanation to the section says that when there is a question of evidence other than that of (a) contract, grant and disposition of property and (b) 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 Amina (Mst.) v. Lakhmi Chand[11].

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[12] 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 the 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[13] 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 [14]. 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.[15] 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[16] 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 loss of the original document, in that case, the original document can be kept in custody of the party rather than its own custody but they will be subject to frequent inspection by the court[17].

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 can be received by the parties only under order 13 rule 9 of the CPC[18].

In the case of Meer Mohammed Kajen Jowhurry v. Khetoo Debee[19], it was said that the rule with regard to writings is that the 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 to the only repository and appropriate evidence of their agreement.

Regarding confessions, the court said in the case of Emperor v. Gulabu[20] 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.[21] 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[22] 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 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[23], 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 if admissible.

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[24]. 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[25].

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.[26] 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[27].

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[28].

In Bai Hira Devi v. Official assignee of Bombay[29], 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. Conclusion

The best evidence rule provides for a very basic necessity, this rule stops a party to produce tampered or modified evidence that can have a substantial change in the ruling of a case. But on the other hand, it makes the law very stringent and it makes it hard for the party who is producing the evidence.

Since ancient times it has been accepted that the rules of evidence with respect to court proceedings are and should be focussed primarily on seeking the truth about controversial issues by exhausting the best available resources at hand. As we saw previously that the ancient Romans also were known to use the best evidence rule.

We saw that in the ancient Roman era a similar rule developed, it said that if a party could not produce the original document then it will lose all its rights that are based on that particular document.

At that time the rule was called “profert in curia”. As the rule became widely used, the problem was seen and the lawmakers tried to make the rule more lenient. Now the rule itself states that in cases the original document is not available the party can seek secondary evidence for the purpose of proof of the document and now the rule is called the best evidence rule or the original document rule.

In the Indian evidence act, the rule is enshrined not only in sections 91 and 92 but also in sections 60 and 64. Section 91 and 92 are however the most important of the sections as it deals with the document which is the original definition of the rule. The two sections, 91 and 92 are supplementary.

Without section 91, 92 will not be complete and without section 92 section 91 will not be complete. Sections 60 and 64, as it deals with electronic evidence which is also a form of documentary evidence thus can be said to be based on the best evidence rule.

We have seen how various aspects such as confessions, a partition of property etc. in light of evidence are governed by sections 91 and 92. These two sections provide for the evidentiary value of different documents and also speaks about the admissibility of oral evidence in different instances.

The two sections 91 and 92 defines the case where documents are exclusive evidence of the transactions which they embody. These two sections will only apply when the documents will have all the terms mentioned. The inference of whether writing was intended to contain the whole agreement or not can be understood by seeing the document itself as well as the extrinsic evidence.

The arbitration proceeding is not governed by the Indian evidence act. The principles of natural justice are to be followed in an arbitration proceeding. Section 91 and 92 of the Indian evidence act are based on the principle of natural justice. So, if any of those are violated against any person then he may approach the court and the court should come to the rescue of such an aggrieved party.

We saw that the law has taken measures on every aspect regarding the copying of evidence so as to materially improve the trial procedure and the administration of justice. But however, it does not mean that the production of evidence in the protection of sections 91 and 92 will be risk-free. Based on the various advancement in the technology in the modern-day world the chances of production of fraudulent and tampered evidence is increasing day by day. However, since we cannot stop progress based on the reason that it increases risks to law, so we have to keep a check for any loopholes in the law and have to amend the law accordingly. But whatever the case may be the doctrine of the best evidence rule is one of the excellent laws developed by the ancient Romans which is serving the entire world even in the 21^st century.

Edited by- Akriti

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References

[1] Henry Campbell Black, Black’s law dictionary (8^th ed., West Group 2004); Ann E Tomeny, ‘Best Evidence and Authentication of Documents’ (1975) 21 LOY L REV 450

[2] Cynthia A. DeSilva, ‘California’s Best Evidence Rule Repeal: Toward a Greater Appreciation for Secondary Evidence, (1999) 30 MCGEORGE L REV 646, 648

[3] Collin Miller, ‘Evidence: Best Evidence Rule’ (2012) CALI eLangdell Press

[4] Ford v. Hopkins (1700) 91 Eng Rep 250 (K.B.)

[5] Omychund v. Barker (1745) 26 ER 15

[6] Justice Kurian Joseph, ‘Admissibility of Electronic Evidence’ (2016) 5 SCC J-1

[7] The Code of Civil Procedure 1908, Order 13 rule 4(1)

[8] Avhinav Chandrachud, ‘Criteria for Marking Documentary Evidence’ (2016) 1 SCC J-7

[9] Bank of Baroda v. Shree Moti Industries ltd AIR 2008 Bom 201

[10] Indian Evidence Act 1872, s 91

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

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

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

[14] Tulsi v. Chandrika Prasad AIR 2006 SC 3359

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

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

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

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

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

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

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

[22] Md Daud v. Abu Mohammad AIR 1961 Pat 310

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

[24] Roop Kumar v. Mohan Thedani AIR 2003 SC 2418

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

[26] U Sin v. U Tua Si

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

[28] Sunder Singh v. Ram Saran Das

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

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