There is a famous Hindi Saying “ likhtam ko bhaktam ki zaroorat nahi ” (there is no requirement of oral evidence of a written record). Where both oral as well as documentary evidence are admissible, the court may go by the evidence which seems to be more reliable. There is nothing in the Act requiring that the documentary evidence should prevail over the oral evidence. The provisions as to exclusion of oral by documentary evidence are based on the rule of ‘best evidence’. Where the fact to be proved is embodied in a document, the document (primary or secondary evidence of it) is the best evidence of the fact. The maxim of law is whatever is in writing must be proved by the writing. Section 91 to 100 of the Indian Evidence Act, 1872 lays down provision relating to exclusion of oral by documentary evidence.

Section 91 and 92 deals with best evidence rule. However, the term best evidence rule is not explicitly written anywhere in the Indian Evidence Act, 1872. The ‘best evidence’ rule means that the best evidence of which the case in its nature is susceptible must always be produced. The rule does not require the production of the greatest possible quantity of evidence, but it is framed to prevent the introduction of any evidence which raises the supposition that there is better evidence behind it, in possession or under control of the party by which he might prove the same fact, and which is withheld by the party.

It is one of the cardinal rules of the law of evidence that the best evidence in possession of the party must always be given i.e. if a fact is to be proved by oral evidence, the evidence must be that of a person who had directly perceived the fact to which he testifies.

Section 91 of the Indian Evidence Act, 1872 speaks about, “Evidence of terms of contracts, grant and other dispositions of property reduced to form of documents”. This section 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 expressed in 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 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.

Section 91 of Evidence Act contains following 2 exceptions:

1. 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 and the writing need not be proved. When the question is whether X is a High Court Judge, the warrant of appointment need not be proved, the only fact that he is working as a High Court Judge will be proved. Similar is the case when X appears before the court as a witness and says that he is a civil surgeon.
2. Wills admitted to probate in India may be proved by the probate. The document containing the will need not be produced. The word ‘probate’ means the copy of a will certified under the seal of the court of competent jurisdiction with a grant of administration to the estate of the testator.

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.

Section 91 applies to third parties too. 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.

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 to understood it. Oral evidence can also be given in order to show that the recitals in a deed are nominal.

In this case, Supreme Court 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 this case, 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 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. 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.

Section 92 of the Indian Evidence Act, 1872 speaks about, “Exclusion of evidence of oral agreement”. The provision in Section 91 is further supplemented by Section 92. This section says that if any contract, grants or disposition of property which is required by law to be in writing in form of document and if it has been proved according to Section 91, then for the purpose of varying it, contradicting it or subtracting it parties or their representative is not required to give oral evidence and it is not admissible. Two points are proved from this section:

1. If any third party gives then it is admissible.
2. If any oral evidence is given which do not contradict the contract then it is admissible.

The rationale behind Section 92 is that the parties having made a complete memorial of their agreement, it must be presumed that they have put into writing all that they considered necessary to give full expression to their meaning and intention; further, the reception of oral testimony would create mischief and open the door to fraud.

Section 92 of Evidence Act has following exceptions: -

If any contract, grant or other dispositions of property is made between the parties and fraud is done by other party or there is a mistake of fact, or mistake of law, or the party is not competent to contract then in such circumstances oral evidence can be given and it is admissible¹⁾.

Evidence can be given of an oral agreement on a matter on which the document is silent. But the oral agreement should not be inconsistent with the terms stated in the document. The separate oral agreement should be on a distinct collateral matter, although it may form a part of the transaction. Further, the formality of the document is important; the more formal the document, the greater will be the court’s reluctance to admit oral evidence²⁾.

This exception means that where there is a separate oral agreement that the terms of a written contract are not to take effect until a condition precedent has been fulfilled or a certain event has happened, oral evidence is admissible to show that as the event did not take place, there is no written agreement at all. This rule would never apply to a case where the written contract has been performed or acted upon for some time³⁾.

Where after executing a document, the parties orally agree to treat it as cancelled or to modify some of its terms, such distinct and subsequent oral agreement may be proved. However, where the contract is one which is required by law to be in writing, or where it has been registered lawfully, then proof cannot be given of any oral agreement by which it was agreed either to rescind the contract or to modify its terms.

If there is the existence of any particular usage or customs by which incidents are attached to a contract then it can be proved. This means oral evidence is admissible to explain or supply terms in commercial transactions on the presumption that the parties did not intend to put into writing the whole of their agreement, but (impliedly) agreed that their contract was to be interpreted or regulated by established usages and customs, provided they are not inconsistent with the terms of such contract. Thus, oral evidence may be offered by the custom.

Any fact may be proved which shows in what manner the language of a document is related to existing facts. This exception comes into play when there is latent ambiguity in a document i.e. when there is a conflict between the plain meaning of the language used and the existing facts. In such cases, evidence of the “surrounding circumstances” may be admitted to ascertain the real intention of die parties. Thus, the conduct of the parties can also be taken into account so as to find out what they might have meant by their words.

When a document is ambiguous i.e. either its language does not show the clear sense of the document or its application to facts creates doubts, how far oral evidence can be allowed to clarify the language or to remove the defect? Sections 93-98 lay down the rules as to interpretation of documents with the aid of such ‘extrinsic evidence’ (evidence from the outside).

Ambiguities are of two kinds: ambiguitas patens i.e. patent ambiguity (Section 93-94) and ambiguitas latens i.e. latent ambiguity (Section 95-97). A patent ambiguity means a defect which is apparent on the face of the document. In such cases the principle is that oral evidence is not allowed to remove the defect. A latent defect implies a defect which is not apparent on the face of the record, but is in the application of the language (used in the document) to the facts stated in it. The general principle is that evidence can be given to remove such defects.

Documents Section 93 of the Indian Evidence Act, 1872 speaks about, “Exclusion of evidence to explain or amend ambiguous document”. Section 93 says that the documents which are ambiguous in the face of it, there is no need to give any evidence to show its meaning or supply its defects.

Illustration: - If there is a deal between ‘A’ and ‘B’ for buying a horse for Rs.1000 or Rs.2000 then the evidence cannot be given to show what price was actually meant to be given since the document is ambiguous in its face.

The reason for the exclusion of evidence in such cases 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. 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.

Section 94 of the Indian Evidence Act, 1872 speaks about, “Exclusion of evidence against application of document of existing facts”. It says that when a document is plain in itself and when it applies to the existing facts accurately then the evidence cannot 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.

Illustration: - 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 cannot be given saying that it was meant to be for an estate at a different place and of different size.

The principle behind this section is that the words of a written document has 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. This section applies only when the execution of the document is admitted and when there are no vitiating circumstances against it.

Documents Section 95 of the Indian Evidence Act, 1872 speaks about, “Evidence as to document unmeaning in reference to existing facts”. 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. This section is based on the principle of “falsa demonstratio non nocet” which means that a false description does not vitiate the document.

Section 96 of the Indian Evidence Act, 1872 speaks about, “Evidence as to application of languages which can apply to one only several persons”. 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.

Illustration: - 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 that which white horse ‘A’ meant to sell.

Where a pronote mentioned a date according to the local calendar and also according to the international calendar, the evidence could be offered to show which date was meant. Suppose if a Vakalatnama did not contain the name of the pleader after the word “Mr.” in the printed form but bore the signature of the party as well as the pleader. Then the ambiguity in the document was not patent but latent which could be cleared up by extrinsic evidence under Section 96.

Section 97 of the Indian Evidence Act, 1872 speaks about, “Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies”. This section says that 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 of them correctly, then evidence may be given to show which fact it was meant to apply.

Illustration: - ‘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.

Section 98 of the Indian Evidence Act, 1872 speaks about, “Evidence as to meaning of illegible characters, etc”. 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, of abbreviations and of words used in a peculiar sense.

Illustration: - A, sculptor, agrees to sell to B, “all my modes”. A has both models and modeling tools. Evidence may be given to show which he meant to sell.

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.

Section 99 of the Indian Evidence Act, 1872 speaks about, “Who may give evidence of agreement varying term of document”. This section says that the 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.

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.

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 (Section 99) 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.

In case of alienation of land in which a document was executed as a gift deed or mortgage. The claim of the plaintiff 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. In such case, third-party purporting to the exercise some rights in the land can prove the transaction was, in reality, a sale or not.

Note: - Section 100 says that “Nothing in Chapter 6 contained shall be taken to affect any of the provisions of the Indian Succession Act, 1925 as to the construction of wills”.

• Adv. Abhishek Gupta (Natraj Legal Solutions)
• Delhi High Court
• Ph: 9999052336,8700521407
• E-mail: adv.abhishek3995@gmail.com