Introduction:

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. Secs. 91 and 92 of the Evidence Act incorporate this principle.

Best Evidence Rule

The main object of the law of evidence is to restrict the investigation made by courts within the bounds prescribed by general convenience.

Thus, the evidence must be confined to the matter in issue, hearsay evidence must not be admitted, and the best evidence must be given in all cases. 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. Otherwise, it would be impossible to test, by cross-examination, the truth of the testimony; and the law rejects the evidence which cannot adequately be tested. Thus, hearsay evidence is not evidence; it is only in exceptional cases that such evidence is admissible.

Similarly, where the transaction sought to be proved is primarily evidenced by a writing, the writing itself must be produced or accounted for. It is only in the absence of best or primary evidence (original document) that the court will accept what is known as secondary evidence (copy of the original document). Secondary evidence will never be received until the party tendering it proves that it is out of his power to obtain the best evidence.

Further, it is a well-established rule of law that whenever written instruments are involved, any other evidence (e.g. oral) is excluded from being used, either as a substitute for such instrument or to contradict such instrument (Rule of exclusion of oral evidence by documentary evidence). The written instruments are entitled to more credit than parole (or oral) evidence. However, in certain exceptional cases, oral evidence can be given regarding the documents.

Evidence of Terms of Contracts, Grants, etc. Reduced to Document (Sec. 91)

According to Sec. 91, “when the terms of 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 the terms of such contract, etc, except the primary or secondary evidence of the writing itself”

Case Laws

Roop Kumar v Mohan Thedani (2003) 6 SCC 595

This section merely forbids proving the contents of a writing otherwise than by writing itself. It incorporates rule of “best evidence” which in reality declares a doctrine of substantive law, namely, that in the case of a written contract all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it.

The section extends to both types of transactions, namely, which have voluntarily been made by writing and for which writing is compulsory; it does not apply to oral contracts. Thus, writing becomes its own evidence and excludes all other kinds of evidence. The writing excludes oral evidence altogether.

For example:

• A leases his house to B via a written lease. Later, A files a suit for arrears of rent and for ejectment. A alleges that the tenancy was from month to month, while B contends that it ran from year to 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 in the court. The document will have to be produced in the court.
• A sues B for the possession of a certain house alleging that it belongs to him and B is a trespasser. B contends that the house belongs to him and alleges that there was previous civil litigation between the same parties for the same house and it was decided that the house belongs to him. The contents of that previous judgment must be proved by the copy of the judgment. Oral evidence is shut out.

Rule contained in section 91 applies to the terms and not to the factum (existence) of a contract.

Exception to Section 91 :

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.
   For Example: When the question is whether A 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.

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.

Explanation to Section  91

Explanation 1– This section applies equally to cases in which the contracts, etc. are contained in one document or more than one. If a contract is contained in several letters, all the letters must be proved.

Explanation 2– Where there are more originals than one, one original only need be proved. If a contract is contained in a bill of exchange, the bill of exchange must be proved. If a bill of exchange is drawn in a set of three, one only need be proved.

Explanation 3- Where in addition to the terms of the contract, etc. a document refers to any other fact also, as to that fact oral evidence-is always allowed. For example, a contract for sale of goods mentions that the goods supplied on earlier occasions have been paid for. Since this is not a term of the contract, it is an extraneous fact and, therefore, oral evidence can be offered to show that no such payment was ever made.

A gives B a receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible.

Exclusion of Evidence of Oral Agreement (Sec. 92)

The provision in Sec. 91 is further supplemented by Sec. 92 by providing that once any such contract, grant or disposition has been proved by the writing, then no evidence can be given of any oral agreement to contradict or change the terms of the contract. In other words, no oral evidence can be given to qualify the terms of the document.

Suppose A borrows Rs. 200 from B and executes a pronote in which the interest rate is given 1 per cent. B files suit for recovery of the principal and interest at the rate of 1 per cent. The pronote is filed and proved in the court. A wants to lead evidence to the effect that the interest settled between the parties was ½ percent. Now, this evidence cannot be allowed as it contradicts the terms of the pronote.

Rajkumar Rajendra Singh v State of H.P. AIR 1990 SC 1833:The rationale behind Sec. 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.

For example, a policy of insurance applies to ships leaving Calcutta. One of the ships is lost. It is sought to be proved that by an oral agreement the particular ship was excepted from the policy. Such evidence is inadmissible illustration (4) to Sec. 92.

Exceptions – There are some circumstances when Oral Evidence can be given regarding a Document

There are various exceptions to the general rule of exclusion of evidence of oral agreement:

1. Validity of document (proviso 1, Sec. 92) – The 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. The validity of a document may be questioned on the grounds of fraud, intimidations, illegality, failure of consideration, mistake in fact or law.
   For example, A enters into a written contract with B to work certain mines of B, upon certain terms. A was induced to do so by a misrepresentation of B’s as to their value. This fact may be proved.

2. Matters on which document is silent (proviso 2, Sec. 92) – 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. In considering whether a case falls under this exception, the formality of the document is an important consideration. The more formal the document, the greater will be the court’s reluctance to admit oral evidence. The illustrations to Sec. 92 make clear the point.
   For example, A written agreement is silent as to the time of payment of the price. If there is any oral agreement regarding this, it may be proved.
   Case laws:
   In Brij Kishore v Lakhan Tiwari (AIR 1978 All. 374):
   The document in question was one by which the existence of a deed was acknowledged and it was on a stamp paper. The document was silent about the interest payable and, therefore, oral evidence was offered on the point. The question was whether the document was so formal as to shut out oral evidence. The court allowed the evidence.
   The court observed: When the document is such that one may reasonably believe that the entire terms and conditions agreed were sought to be put into the document, then oral evidence should not be allowed.

3. Condition precedent (proviso 3, Sec. 92) – The existence of any separate oral agreement constituting condition precedent to the attaching of any obligation under the document may be proved. 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 time.If a receipt for payment has been sent on an oral understanding that the receipt was to apply only when payment was made, this fact may be proved.
   Naraindas v Papammal AIR 1967 SC 333:
   In this case the parties to a promissory note payable on demand, orally agreed that payment would not be demanded for five years, the court allowed the oral agreement to be proved.

4. Rescission or modification (proviso 4, Sec. 92) – 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. 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.

5. Usages or customs (proviso 5, Sec. 92) – Under this exception, 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 tacitly (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 that by the custom of the trade the seller had to arrange for wagons as held in the case of Bejoy Krishna v N.B, Sugar Mills Co. AIR 1949 Cal 490.

6. Relation of language to facts (proviso 6, Sec. 92) – 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 the parties.
   Case Laws:
   ROOP KUMAR V MOHAN THEDANI [(2003) 6 SCC 595]
   Facts and Issue – In this case the scope and ambit of Secs. 91 and 92 were in issue. The jural positions of these two sections was analysed by the court.
   Before the High Court the parties agreed that the basic question which required consideration was whether relationship between the respondent and the appellant was that of licensor and licensee or it was that of lessor or lessee. The Trial Judge had held that the transaction between the respondent and appellant evidenced by an agreement dated 15-5-1975 amounts to licence and not sub-letting. There was a finding recorded by the trial court to the effect that the appellant was a party to earlier ejectment proceeding which was not factually correct. The High Court held that the agreement dated 15-5-1975 was entered into between them with mutual consent and the appellant-defendant signed the same voluntarily and out of his free will; it was not a sham document; was in fact acted upon; the appellant-defendant was an accounting party in terms of the agreement.
   Gangabai v Chhabubai (AIR 1982 SC 20): It was held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar under Sec. 92 arises only when the document is relied upon and its terms are sought to be varied or contradicted. Oral evidence is admissible to show that the document executed was never intended to operate as an agreement and that some other document was entered into between the parties.
   Ishwar Dass Jain v Sohan Lal (AIR 2000 SC 426) with reference to Sec. 92(1) :
   A mortgagor filed a suit for redemption. Oral evidence was sought to be given to prove that the mortgage deed, though executed, was not intended to be acted upon and that it was a sham document executed only as a collateral security. Held that it would not amount to varying or contradicting the terms of the document and would not be hit by Sec. 92.