Exclusion of Oral by Documentary Evidence (Law of Evidence)

By | October 14, 2018
exclusion of oral by documentary evidence

Section 91 to 100 of the Indian Evidence Act, 1872 lays down provision 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. The rule thus becomes essential to the pure administration of justice. Entisham Ali vs. Jamna Prasad, [(1921) 24 Bom LR 675] 

EVIDENCE OF TERMS OF CONTRACTS, GRANTS AND OTHER DISPOSITION OF PROPERTY REDUCED TO FORM OF DOCUMENTS (SECTION-91):

Where the fact to be proved is embodied in a document, the document is the best evidence of the fact. Such fact should, therefore, be proved by the document itself, that is, by the primary or secondary evidence of the document. The maxim of law is that whatever is in writing must be proved by the writing. Section 91 of the Evidence Act incorporate this principle.

The section emphasizes that when a contract, grant or some other disposition of property is reduced to the form of a document or is required by law to be reduced to a document, no evidence shall be given for the proof of it except the primary or secondary evidence of the writing itself. The section extends to both types of transactions, namely, which have voluntarily been made by writing and for which writing is compulsory, for example, transfers of immovable property of the value of Rs. 100 or upwards is required by law to be in writing. Thus writing becomes its own evidence and excludes all other kinds of evidence. The writing excludes oral evidence altogether.

This principle of exclusion applies only to a contract, grant or other disposition of property. A document or deed which cannot be described as a contract, grant or disposition of property shall not be affected by this rule. The Supreme Court held in Taburi Sahai v. Jhunjhunwala (AIR 1967 SC 1060), that a deed of the adoption of a child is not a contract within the meaning of Section 91 and, therefore, the fact of adoption can be proved by any evidence apart from the deed.

EXCEPTIONS:  
  1. Appointment of a public officer: Where the appointment of a public officer is required by law to be made by writing and the question is whether an appointment was made if it is shown that a particular person has acted as such officer, that will be sufficient proof of the fact of appointment and the writing by which he was appointed need not be proved.
  2. Wills: Wills admitted to probate in India may be proved by the probate. The document containing the will need not be produced. “Probate” is a copy of the will certified under the seal of the court and, therefore, is a sufficient proof of the contents of the will.
EXCLUSION OF EVIDENCE OF ORAL AGREEMENT (SECTION-92):

The principle of the section applies only to such contracts, etc., as are required by law to be reduced to the form of a document. The principle laid down is that when the terms of any such document have been proved by the primary or secondary evidence of the document, no evidence of any oral agreement or statement shall be admitted, as between the parties to the document or their representatives, for the purpose of contradicting, varying, adding to, or subtracting from the terms of the document. In other words, no oral evidence can be given to qualify the terms of the document.

In Veeraswami v. Narayan (AIR 1949 PC 32), it was held that evidence can be given of any oral agreement which does not contradict, vary, add to or subtract from the terms of the document.

EXCEPTIONS:
  1. Validity of document: The first proviso to section 92 says that evidence can be given of any fact which would invalidate the document in question or which would entitle a party to any decree or order relating to the document.
  2. Matters on which document is silent: Evidence can be given of an oral agreement on a matter on which the document is silent. Such evidence is allowed subject to two conditions; Firstly, the oral agreement should not be inconsistent with the terms stated in the document. The terms which are expressly stated in the document cannot be allowed to be contradicted by any oral agreement. Such evidence is allowed to be proved only on matters on which document is silent. Secondly, in permitting the evidence of oral agreement the court is to have regard of the degree of formality of the document. If the document is extremely formal, evidence of an oral agreement shall not be allowed even on matters on which the document is silent.
  3. Condition precedent: The third proviso provides that the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under the document may be proved. If the document was signed and issued subject to a condition, which though not mentioned in the document, it was agreed between the parties that the liability under the document would not arise until the condition was fulfilled, such an oral agreement is allowed to be proved.
  4. Rescission or modification: This proviso permits proof of an oral agreement by which the document in question was either rescinded or modified. To rescind a document means to set aside and to modify means to drop some of its terms. Where after executing a document the parties orally agree to treat it as cancelled or to modify some of its terms, such oral agreement may be proved.
  5. Usages or customs: The proviso provides that the existence of any usage or custom by which incidents are attached to a particular type of contract can be proved. But this is subject to the condition that the usage or custom of which proof is offered should not be against the express terms of the document. The usage should not be repugnant to or inconsistent with the document, for otherwise, it should nullify the document.
  6. Relation of language to facts: According to the last proviso any fact may be proved which shows in what manner the language of a document is related to existing facts. Every contract is intended to apply certain facts. The facts upon which the document is to operate are sometimes set out in the contract itself and sometimes not.
PATENT AMBIGUITY (SECTION- 93 & 94):

A patent ambiguity means a defect which is apparent on the face of the document. The document is apparently defective. Any person reading the document with ordinarily intelligence would at once observe the defect. In such cases, the principle is that oral evidence is not allowed to remove the defect. The reason for the rule is that the document being clearly or apparently defective, this fact must be or could have been known to the parties and if they did not care to remove it then it is too late to remove it when a dispute has arisen.

LATENT DEFECTS (SECTION- 95 TO 97):

A latent defect means a defect which is not apparent on the face of the record. The document makes a plain reading. There is nothing apparently wrong with its language. But when an attempt is made to apply it to the facts stated in it, it comes out that it does not accurately apply to those facts. Thus the defect is not in the language used in the document, but in the application of the language to the facts stated in it such a hidden defect is known as a latent defect.

EVIDENCE AS TO MEANING OF ILLEGIBLE CHARACTERS, etc. (SECTION- 98):

The section permits evidence to be given of the meaning of words or marks of illegible character or words which are not commonly of intelligible character, foreign words, obsolete words, technical, local and provincial expressions, abbreviations words used in a peculiar sense.

WHO MAY GIVE EVIDENCE OF AGREEMENT VARYING TERMS OF DOCUMENT (SECTION- 99):

The parties to a document or their representative-in-interest cannot give evidence of a contemporary agreement varying the terms of the document. This disability is quite clearly contained in Section 92. But the provision is modified by section 99 to this extent that evidence of such an oral agreement can be given by a third party if he is affected by it.

BY-   SAUMYA CHOWDHARY

JAI NARAIN VYAS UNIVERSITY, JODHPUR

SOURCES

  • LAW OF EVIDENCE BY BATUK LAL
  • LAW OF EVIDENCE BY AVTAAR SINGH
  • SCC ONLINE

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