Question: Document as a sale deed | A filed a suit in the Court of Civil Judge Amravati alleging that she had purchased the house and made improvements in the house. Being in need of money she entered into an agreement with B for a loan of Rs. 20,000. It was decided that simultaneously she should execute nominal documents… Read More »

Question: Document as a sale deed | A filed a suit in the Court of Civil Judge Amravati alleging that she had purchased the house and made improvements in the house. Being in need of money she entered into an agreement with B for a loan of Rs. 20,000. It was decided that simultaneously she should execute nominal documents of sale and rent notes. These documents i.e. sale deed and rent note were never intended to be acted upon and she had to pay interest of Rs 18% per annum on the loan. It...

Question: Document as a sale deed | A filed a suit in the Court of Civil Judge Amravati alleging that she had purchased the house and made improvements in the house. Being in need of money she entered into an agreement with B for a loan of Rs. 20,000.

It was decided that simultaneously she should execute nominal documents of sale and rent notes. These documents i.e. sale deed and rent note were never intended to be acted upon and she had to pay interest of Rs 18% per annum on the loan. It was stated that B was attempting to enforce the document as a sale deed. The declaration was prayed that she continued to the owner of the house.

In defence, B maintained that the sale deed represented the true transaction and the ownership of the house has passed to him. During the trial, A wanted to produce oral evidence that the sale deed was a sham document and never intended to be acted upon. An objection was raised by B that A cannot be permitted to produce oral evidence contrary to the contents of the sale deed. Decide the said objection. Give reasons. [D.J.S. 1989]

Find the answer to the mains question only on Legal Bites. [A filed a suit in the Court of Civil Judge Amravati alleging that she had purchased the house and made improvements in the house. Being in need of money... Decide the said objection. Give reasons.]

Answer

The rule laid down in section 91 of the Indian Evidence Act is that when the terms of a contract have been reduced to writing no evidence shall be given in proof of the terms of the contract except the document itself or in certain circumstances, secondary evidence of the contents.

The summary of Section 91 which entails its application is:

  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.

For example, A mortgages his properly to B for Rs. 10,000. A mortgage deed is executed by A. This is also attested by two witnesses and the deed is handed over to B. After a few years, A files a suit for the redemption and possession of the property mortgaged.

B denies the existence of the mortgage and alleges to be the owner of the property and not a mortgagee of it. In this case, the issue would be whether B is a mortgagee of the plots in dispute. In this case, none of the parties will be allowed to adduce oral or any other secondary evidence, to prove the terms of the mortgage, the mortgage deed must be produced. But in this case, the document is in possession of the adversary (B), A may take a certified copy from the Registration Department and produce it before the court.

Again suppose A gives his house on lease to B and there is a written lease comprising its terms. After a few months A files a suit for arrears of rent and for ejectment. A alleges that the tenancy was from month to month and that the rent was settled at Rs. 50 per month, B on the other hand contends that the tenancy ran from year to year and the rent was settled between the parties to be Rs. 300 per year.

In this case the terms of the contract between the parties having been reduced to document, none of them will be allowed to adduce oral evidence to prove the terms of the tenancy. The document will have to be produced in court.

But secondary evidence of the terms of the lease may be given where it is shown that the original is lost or that it cannot be found or that it is in possession of an adversary.

Applying the provision of the section in reference to the illustration aforesaid in the present case at hand, when during the trial, A wanted to produce oral evidence that the sale deed was a sham document and never intended to be acted upon. An objection was raised by B that A cannot be permitted to produce oral evidence contrary to the contents of the sale deed. The objection raised by B shall be allowed as the contract of sale between A and B was reduced in writing as ‘’sale deed’ and in that case, the documentary evidence must be shown by A to present his case.

The case also doesn’t fall into any of the two sections thus objection to exclusion of oral evidence of A shall be allowed when there is a sale deed present. This is by virtue of the principle of exclusion of oral by documentary evidence as enshrined under section 91 of the Indian Evidence Act.


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
  6. Law of Evidence Mains Questions Series Part-VI
  7. Law of Evidence Mains Questions Series Part-VII
  8. Law of Evidence Mains Questions Series Part-VIII
  9. Law of Evidence Mains Questions Series Part-IX
  10. Law of Evidence Mains Questions Series Part-X
Updated On 1 Oct 2021 2:09 AM GMT
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