Roll No.

09BAL069

A Comparitive Study of Oral and Documentary Evidence
PROJECT FOR THE SUBJECT

Evidence Law

SUBMITTED BY
Mr. Archit Bohra Semester – V B.A.LL.B. (Hons)

UNDER THE GUIDANCE OF
Mr. Rhishikesh Dave
Asst. Prof., ILNU

Submitted to

INSTITUTE OF LAW NIRMA UNIVERSITY, AHMEDABAD

ACADEMIC YEAR (2010-11) 1

Contents

D E C L A R A T I O N .................................................................................................................. 3 C E R T I F I C A T E .................................................................................................................................... 4 CHAPTER I .................................................................................................................................... 5 INTRODUCTION AND REASERCH METHEDOLOGY ........................................................... 5 Synopsis: ....................................................................................................................................................... 5 RESEARCH METHODOLOGY ................................................................................................................. 7 Aims and objectives: ............................................................................................................... 7 Scope and limitations: ............................................................................................................. 7 Hypothesis: ............................................................................................................................. 8 Research questions: ................................................................................................................. 9 Mode of Writing ..................................................................................................................... 9 Mode of Citation ..................................................................................................................... 9 Chapter II ...................................................................................................................................... 10 NATURE AND FUNCTION OF THE LAW OF EVIDENCE............................................................ 10 CHAPTER III ................................................................................................................................. 12 MODES OF PROOF ....................................................................................................................... 12 Oral evidence ............................................................................................................................................ 12 Documentary evidence ......................................................................................................................... 15 Chapter IV ..................................................................................................................................... 18 OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE ............................................ 18 CONCLUSION ............................................................................................................................. 24 BIBLIOGRAPHY ..........................................................................Error! Bookmark not defined.

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DECLARATION I Archit Bohra declare the work entitled ―A Comparative Study of Oral and Documentary Evidence‖ being submitted to Nirma University for the project in the subject of “Evidence Law” is original and where the text is taken from the authenticated books. Date : 4th September 2011 Archit Bohra Roll No 09 BAL 069 V Semester Institute of Law Nirma University 3 . articles or web articles. appropriate reference is given. It is true in my best of knowledge.

Date: 4th September 2011 Mr. Professor in Law Institute of Law. Archit Bohra for the project work in the subject of Evidence Law embodies independent and original research work carried out by him under my supervision and guidance.A. Rhishikesh Dave Asst. Programme during the academic year 2010-11.CERTIFICATE This is to certify that the project entitled “A Comparative Study of Oral and Documentary Evidence” submitted by Mr. it is his original work submitted to fulfill the project assignment for the Semester End Examination of fifth semester of B. Nirma University Ahmedabad 4 . To the best of my knowledge and belief.B.LL.

Substantive laws are those. in the plain sense it means any rule. disobedience to which would entail punishment. a dogma or a norm to which the human actions are required to conform. law of gravitation. A has the right to prosecute B and get him punished.CHAPTER I INTRODUCTION AND REASERCH METHEDOLOGY Synopsis: The term ―Law‖ is used in different senses. The object of law is the creation of legal rights. and B is liable for assault. But the court cannot determine A‘s right and B‘s liability unless it is proved that B has assaulted A. are the attributes of the law of nature. regulation or a canon. The term ―Law‖ is used in several other subjects also. the regularity is rising and setting of sun. But in jurisprudence we do not use the expression ‗law‘ in any of these senses. the matters such as whether A was assaulted by B and if so. Substantive civil laws are contained in several acts like the Indian Contract (1872). and (2) adjective laws. the ascertainment of which is the purpose of every judicial enquiry. duties and liabilities. For example. prescribing a course of action. which is the adjective law. promising to sell his house and B promises to pay him Rs. In the event of a breach of contract being committed by either of the parties the aggrieved party necessarily 5 . for example. The entire corpus juris (body of laws) is broadly classified into two categories. the law of reflection etc. which define the rights. The substantive civil law has not been fully codified so far. (1) substantive laws. who should offer evidence and in what manner evidence is to be offered. the Transfer of Property Act (1882) the Hindu and Muslim personal laws. the Indian Evidence Act steps in here to enable the court to determine A‘s right and B‘s liability. 1 lakh. namely. A enters into a contract with B. Holland defines a legal right as the capacity residing in one person of controlling with the assent and assistance of the state the action of others. These matters relating to A‘s right and B‘s liability are provided for in the Indian Penal Code. rising of high tidal waves. It is the machinery by which the substantive laws are set and kept in motion. which define the pleading and procedure by which substantive laws are applied in practice. Similarly. is provided in the Indian Evidence Act. but as signifying a command from a superior authority. Hence. Without going into the details of jurisprudential definition of law. Law as used in the physical and natural sciences is understood in the sense of observed uniformity in nature. Holland defines law as a general rule of external human action enforced by a sovereign political authority. A prosecutes B for assault. Adjective laws are those. substantive criminal law is contained in the Indian Penal Code (1860) as also in various special and local laws dealing with that subject.

if the rules of law of evidence are not sound the administration of justice is bound to go astray. Again the Evidence Act. The evidence which is given must be through prescribed ways as per the Act. Similarly. which is the adjective law. The rules regarding evidence in the administration of justice are of high importance. you need to have the deed as evidence and that is a document. As at many places and in most we need documents to prove and to be something in written. Both play very important role and have equal importance as in a case of a murder an eyewitness can give a oral evidence by what he has seen on the place where the incident occurred. Oral evidence plays a part in some of the conflicts but Documentary are valid and applicable and used in every kind of laws. The law of evidence can be stated to be the foundation on which the entire structure of judiciary is based. No substantive law can be enforced without the help of rules of law of evidence. If the foundation is weak the structure is bound to collapse. which is substantive law. This comparative study is about those two of the kinds. For e. And the same is with documentary evidence. steps in for the enforcement of the above substantive law. in case of breach of contract. but as what has been seen through the deep study is that documentary evidence play and more important role than oral evidence. But the court cannot decide the rights and liabilities of the parties unless the matters such as the existence of a contract between the parties are proved. What evidence has to be given and in what manner it should be given in proof of the existence of the contract are provided for in the Indian Evidence Act. The rights and liabilities and the remedies for breach of contract are provided in the Indian Contract Act.g. Oral Evidence and Documentary Evidence. 6 .comes to a court of law to seek the redressal of his right. So this shows the importance of documentary evidence.

To differentiate the usage of the evidences. To see the process of usage of both types of evidences. To analyze the legislative definitions of oral and documentary evidence. 1872 and the difference between the oral and documentary evidence. To see the status of which evidence is more implicit. 7 .       To understand the term oral evidence and documentary evidence as given under Indian Evidence Act 1872. Scope and limitations: The project limits itself to studying of several important cases and judgments delivered under the Indian Evidence Act.RESEARCH METHODOLOGY Aims and objectives: The aim of this project is to look at the meaning of oral evidence & documentary evidence and compare them under Indian Evidence Act 1872 and thereby analyzing their usage and advancements. The applicability of the oral and documentary evidence. The researcher‘s study was even limited by his understanding as there could be some basic observations which he might have failed to put forward in the project due to limited understanding of the subject.

Its translated version is: ―O‖ True Believers: Observe Justice. delivered by Sir S. The courts enjoyed unfettered liberty in the matter of admission of Law of Evidence. The historical background of the law of evidence and its later development has been elaborately discussed in radha kumud mukherjee‘s endowment lectures on Hindu Judicial System. They are: (1) Lekhya (Documents) (2) Sakshi (Witnesses). th 8 . Madras and Calcutta were following English rules of the Law of Evidence. Oral evidence is further sub classified into direct and hearsay evidence as in the present day. (b) the Ancient Muslim Periods. (b) Law of Evidence in Ancient Muslim Period The Mohammedan Law givers deal with evidence under the heads of oral and documentary. Krishnam Achari. Vardhachariar. (3) Bukhthi (Possession).‖ (c) Law of Evidence In British India In British India the Presidency Courts by virtue of Royal Charter established in Bombay. In regard to oral evidence the Holy Quran enjoins truthfulness. outside the Presidency Towns. (c) and the British Period. In Hindu Law there were three kinds of evidence.. The entire administration of justice in the Mofussil Courts in the absence of any definite rules of Law of Evidence was in total chaos. Between 1835 and 1853 about eleven enactments were passed 1 Law of Evidence by Dr. there were no definite rules relating of Law of Evidence. but act justly. 7 Ed. (a) the Ancient Hindu Period. which produced them. In the 1835 the first attempt was made to codify the rules of evidence by passing the Act of 1835.Hypothesis: The historical background as per the facts and establishments shows the genesis of law of evidence was different periods namely. And fear God for God is fully acquainted with what you do. This will approach nearer to piety. oral evidence appears to have been preferred to documentary evidence. There was a dire necessity for the codification of the rules of law of evidence. When documents are produced the courts insisted upon examining the party. (a) Law of Evidence in Ancient Hindu Period1 The sources of information relating to the law of evidence prevailing in Hindu India emanate from the Hindu Dharma Shastras. 2009. when you appear as witness before God and let not hatred towards any induce you to do wrong. although documents properly executed and books kept in the course of business were accepted as evidence. In Mofussil Courts.

What are the provisions under the act by which they are recognized? 3. the draft was placed before the legislature and it was enacted2. Mode of Citation A uniform mode of Citation has been followed. Prior to Independence there were many as 600 Princely States in India. What is the scope of both the types of evidences? 4. But all these enactments were found inadequate. after gathering the opinion. the Law of Evidence is now applicable to all the states constituting the Union of India. Both the substantive laws as well as the procedural laws have since been made uniformly applicable to all the states. In the year 1868 a commission was set up under the chairmanship of Sir Henry Mayne.dealing with the law of evidence. Research questions: 1. The Evidence Act came into force on 1st September. 2 Role of Evidence. What is oral evidence and documentary evidence? 2. He submitted the draft but it was entrusted to Sir James Fitz James Stephen. Stephen submitted his draft and it was referred to the select committee and also to the High Courts and Members of the Bar to elicit the opinion. and. After independence there was merger of Princely States into the Indian Union. whether British province or the native states. So much so. Each of these states had its own rules of law of evidence but by and large they followed the Indian Evidence Act 1872. 1872. 9 . Which of the evidence has more prevalence? Mode of Writing A descriptive and analytical method of writing has been followed. Which were not within the jurisdiction of the British system of justice.

whenever a judge is called upon to pronounce upon the right and liabilities of parties arising out of fact certain information about the facts involved in his mind as to what the real facts are facts must be proved in the first instances and the only the matter is rife for application of relevant laws. In each case the nature and cause of the accident would be in question. The practical reality is that the truth or merits of a case are worth less unless they can be proved to be acceptance of the judge and there to enable him to act on them.conferencing. Anything that makes the thing in question evidence to the court evidence. There is a crowded road for example people are moving. The means which can be used to prove a fact are all control by the rules and principles laid down by the law of evidence. The law of evidence does not affect substantive right of parties but only lays down the law for facilitating the rules of evidence for the purposes of the guidance of the court. One of them being loaded with dynamite the accident produce an explosion with a shocking noise as a result of which a noise in a nearby hospital drops a child from hands injuring the child cases arising out of the accident with flow into the courts. So that judge is able consider the real happening. The evidence means any things by which any alleged matter of facts is either establish or disproved. 10 . vehicle are moving.Chapter II NATURE AND FUNCTION OF THE LAW OF EVIDENCE Every case that comes before a court of law has a fact story behind it facts out of which cases arise keep happening in the ordinary course of life. Only then he will be in position to apply the appropriate law to the fact to arrived at a just solution about the right and liabilities of the parties. It is procedural law which provides inter alike how a fact is to be proved. The means by which facts are proved are governed by the law of evidence. Thus. Even in criminal matter also there can be evidence by means of electronic records including video. Everyone is running at unmitigated speed suddenly two vehicles run against each other. The function of the law of evidence is lay down rules according to which the facts of case can be proved or disproved before a court of law. Where the question is whether an explosion took place before a fire occurred evidence can be both oral and documentary and electronic records can be produced as evidence. The facts which led up to the climax will have to reconstruct before the court.

The noise of the explosion and its flash are evidence of it. Persons who can the flash or heard the noise can give evidence of the fact of the explosion. 11 . If the happening of the fact is recorded on any thing apart from human meaning. evidence can be defined as any material which tends to persuade the court of the truth or probability of some fact asserted before. that record is also an evidence of happening thus.

This first part of the provision which defines evidence deal with oral evidence it says: . Definition of oral evidence :. Oral evidence is evidence which is confined to words spoken by the mouth. except the [contents of documents or electronic records] contents of documents.All the statements which the court permits or requires to be made before it by witness in relation to the matter of four under inquiry. such statements are called oral evidence. Words of the Section:. where written documents exist they shall be produced as being two best evidence of their own contents. 12 .This section is not very happily worded contents of documentary may be proved by oral evidence under certain circumstances . that is to say when such evidence of their content is admissible as secondary evidence.All facts. 1872. may be proved by oral evidence. Contents of document can not be proved by oral evidence :It is rule of evidence not one of technically but of substance that.Sec 3 The meaning of expression ―Oral evidence‖ is given along with the definition of the term ―evidence‖ in Sec 3.CHAPTER III MODES OF PROOF Oral evidence Oral Evidence Section 593:. 3 Indian Evidence Act.

Where this can not be had as is generally the case in the proof of fact by oral testimony. it must be the evidence of a witness who says he saw it. in all cases whatever. be direct. or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that. 4 Indian Evidence Act. that is to say— if it refers to a fact which could be seen. the Court may. 1872. it must be the evidence of a witness who says he perceived it by that sense or in that manner. PRINCIPLE:.Oral evidence may suffice to prove possession oral evidence of credible would be sufficient to prove a little by prescription. if it refers to an opinion or to the grounds on which that opinion is held. it must be the evidence of a witness who says he heard it.What fact may be proved by oral evidence: . if it refers to a fact which could be perceived by any other sense or in any other manner. it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale. 13 . if it thinks fit. if oral evidence refers to the existence or condition of any material thing other than a document. SECTION 60. Oral evidence weigh and value: ._ Oral evidence must be direct4 Oral evidence must. require the production of such material thing for its inspection.where oral evidence is conflicting and where documentary evidence does not help on in coming to a decisive conclusion the duly proper course is to see what are the admitted fact in case and what case the circumstance deducible from the can be no doubt this can be the true method of arising a correct conclusion.The first degree of moral evidence and that which is most satisfactory to the mind is afforded by our own sense. this being the direct evidence of the highest nature. and the grounds on which such opinions are held. or has become incapable of giving evidence. if it refers to a fact which could be heard. may be proved by the production of such treatises if the author is dead or cannot be found.

The vicariousness of visual sensation are the most humerous and the most important. then should adequately respected or correspond to the fact itself as it objectively existed or exist. Thus the nation of perception that the external event has is some way or other impressed itself on correspond to the witness. recollection and narration professional any scientific observation have thus for contributed little knowledge that is serviceable in estimating the influence of value upon testimony in judicial proceeding. but also by enabled to generalize. 5 AIR 2000 MP 1920 14 . In this connection there are several more condition pertaining to general sense perception.But the individual witness testimony is affected not merely by the condition inherent in there three elements of testimony. General human trails affecting testimony: . These generalize common to large of individual may at time find him set. CASE:ASHOK KUMAR ROUT & ETC V/S STATE OF BIHAR5 FACT: . Moreover in the function fulfilled by each these three element or processes are to be found in general from the fundamental can not for assigning to each its probative value. The strength of the inference depends on the probability of a fairly accurate on the part of witness.In respect to the element of testimony perception. Any body who has been pushed or beaten and has felt the blow will of other circumstance permit and the impulse be strong be strong enough be convicted that he has been seen his assaulter and manner of the assault.Testimonial elements:.Admissibility of oral evidence faction of statement and truth of statement of all hearsay statement and truth of statement of all hearsay statement is not inadmissible.When a witness statement is offered as a basis of an evidence in reference inference to the fact stated. Race:. One sense for another in representation. First of all there is that so called vicariousness of sense which Substitute. There is distinction between proving the faction of statement and proving truth of statement.

S.means any matter expressed or described upon any substance by means of letter. b) What are the presumptions about the various kinds of documents. Documentary evidence MEANING–: the expression “documentary evidence” as it is defined in section 36. 15 . The expression “document” is defined in section 3 as follows: “Document”.. 1872. and c) When is oral evidence excluded by documentary evidence? It has been said that the word “document” as used in the law of evidence “should not be construed restrictively. means: [All documents including records produced for the inspection of the Court] such documents are called documentary evidence. Guidance of informant only proposed to establish Faction of statement which was given to him by eye witness. it was to be held to be a document with regard to recorded tape. public and private documents of the presumptions as to the documents.3 defines the term ‘evidence’ as meaning and including oral and documentary evidence. the types of documents. intended to be used. Where the statement of parties containing the terms of a compromise were recorded by a court and duly signed. the mode of proof of contents of documents old documents either by primary or secondary evidence. it was said that there is “no reason in principle why the recording in recording in some permanent or semipermanent manner of human voice (or other sounds) which are relevant to the issue to the determined.e.. viz. or which may be used.It is admissible if such evidence proposes to establish only the faction of statement made by Other person and not the truth of statement. oral or documentary evidence. All evidence comes to the tribunal either as the statement of a witness or as the statement of a document. figures or makes. or by more than one of those means. it is admissible and it Cannot be rejected. Etymologically the word means something which shows or teaches and is evidential or informative in its character. cannot be a document”. i. provided that it furnishes information. The present chapter deals with the documentary evidence. for the purpose of recording that matter. i. In reception to the reception into 6 Indian Evidence Act. Father we are going to deal with the 3 main aspects –: a) How documents are to be proved the manner of..e. Therefore.

The Bombay High Court held that the testimony of the two doctors required corroboration and that the tape amply corroborated it. V.V. The section means that there no other method allowed by law for providing the contents of a document except by the primary or the secondary evidence. The payment was arranged to be made through another doctor and the final meeting for this purpose was to be settled by telephone call from the house of another the doctor. which an appealed to the Supreme Court against his conviction. a certified copy of the written 7 8 AIR 1989 SC 299 2001 (4) Crimes 83 (AP) 16 .evidence of models.. This was connected to the doctor‘s telephone and thus the most incriminating conversation was recorded in the presence of the police officer. Where admissions were made in a written statement by the plaintiff‘s predecessors-in-interest which was filed in several judicial proceedings regarding the rights in the suit property.e. who was running a nursing home.Sri Rama Reddy v. in other words. i. etc. operated upon a patient who afterwards died. Then they become media of communication as a superior substitute for words. maps.” R. Primary evidence is the best evidence.Malkani v. it is to observe in WIGMORE “that for evidentiary purposes they are nothing except so far as they have a human being’s credit to support them. Contents may be proved. The decision was upheld by the Supreme Court. State of Maharashtra7 The accused. was the coroner of Bombay. S. The best evidence rule is to produce the original and secondary evidence is not admissible unless the original is proved to be lost. Law of best evidence requires the best evidence must be given in proof of the facts in issue or the other relevant facts.61 – Proof of contents of documents–: The contents of document may be proved either by primary or secondary evidence. diagrams and photos. there are no degrees of secondary evidence. being a post-operation death. The coroner persuaded the doctor to pay him a sum of money if he wanted the report to be favorable to him. In India the rule is the same as in England. becomes the subject of post-mortem and inquest.M. Giri & Pratap Singh v. as required under section 65. It. The police commissioner was called with the taperecording mechanism. N. State of Punjab8 The court accepted conversation of dialogue recorded on tape-recording machine as admissible evidence. A doctor.

statement was held to be admissible in proof of the settled rights to the property. It would have been admissible if it was not creative of any rights in favor of any party and merely recorded something. An unregistered family settlement deed was held to admissible strictly for collateral purposes only. The subject of documentary evidence can be divided into three parts: 1. How the contents of a document are to be proved? {61-66} 2. How far and in what cases the oral evidence is executed by documentary evidence? {91-109} 17 . the court said that such document could not be attached in evidence. How the document is to be proved to be genuine? {67-90} 3. Where the document carried adhesive stamps which belonged to a period prior to six months from the date of purchase.

or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained. no evidence shall be given in proof of the terms of such contract.Chapter IV OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE S. grant or other disposition of property. Exception 2 – Wills admitted to probate in India may be proved by the probate.919 deals with the Evidence of terms of contracts. and in all cases in which any matter is required by law to be reduced to the form of a document. Explanation 1 – This section applies equally to cases in which the contracts. Explanation 3 – The statement. grants or dispositions of property referred to are contained in one document. or of a grant. the document is the best evidence of the fact. Explanation 2 – Where there are more originals than one. 18 . grant and other dispositions of property reduced to form of document which reads as:– When the terms of a contract. one original only need be proved. that is. therefore. Such fact should. be proved by the document itself. or of any other disposition of property have been reduced to the form of a document. in any document whatever of a fact other than the facts referred to in this section shall not preclude the admission of oral evidence as to the same fact. and to cases in which they are contained in more documents than one. by the primary or secondary 9 Indian Evidence Act. 1872. except the document itself. the writing by which he is appointed need not be proved. Exception 1 – When a public officer is required by law to be appointed in writing. and when it is shown that any particular person had acted as such officer. or of such matter. Where the fact to be proved is embodied in a document.

So is true of a will. grant or other disposition of property. 1872. thus declaring a doctrine of substantive law. for the purpose of contradicting. intimidation. can prove it only by producing the writing. the same can be proved by any other evidence than by producing the document. who is seeking to prove a written contract. 19 . or which would entitle any person to any decree or order relating thereto. They are both based on the ―best evidence rule‖ though they differ in some material particulars also. want for due 10 11 AIR 1985 SC 289 AIR 2006 SC 1800 12 Indian Evidence Act. The section embodies the best evidence rule. therefore. Jhunjhunwala11. There is nothing in the act requiring that the documentary evidence should prevail over the oral evidence. The Supreme Court held in Taburi Sahai v. Allowing the party to confront the witnesses with Xerox copy of such evidence was held to be not permissible. that a deed of the adoption of child is not a contract within the meaning of section 91 and. its term: Proviso (1) – Any fact may be proved which would invalidate any document. or subtracting from.evidence of the document. Where both oral as well as documentary evidence are admissible on their own merits and have been admitted. the court may go by the evidence which seems to be more reliable. or any matter required by law to be reduced to the form of a document have been proved according to the last section. no evidence of any oral agreement or statement shall be admitted. According to the High court of Delhi.9212 deals with the Exclusion of evidence or oral agreement and reads as-: When the terms of any such contract. the fact of adoption can be proved by any evidence apart from the deed. Even a third party. In this respect S. such as fraud. it did not permit oral evidence of the contents of a partition deed which deed was inadmissible being not registered10. The section forbids the proof of the contents of a writing otherwise than by the writing itself. S. varying adding to.91 and 92 supplement each other. secondary evidence by way of oral statement or Xerox copy cannot be allowed. Once it is shown that the original document is not admissible in evidence because of insufficiency of stamps. illegality. as between the parties to any such instrument or their representatives in interest. Further the principle of exclusion of all other evidence applies only to the terms happens to be mentioned in a contract.

want of capacity in any contracting party. the express terms of the contract. In considering whether. In other words. want or failure of consideration. or subtracting from the terms of the document. for the purposes of contradicting. grant or disposition of property. r not his proviso applies. Other parties left free to give such evidence. Proviso (6) – Any fact may be proved which shows in what manner the language of a document is related to existing facts. a condition precedent to the attaching of any obligation under any such contract. is by law required to be in writing.execution. 559 20 . it would not be open to either of the parties to the document to prove that. may be proved. grant or disposition of property. except in cases in which such contract. constituting. or has been registered according to the law in force for the time being as to the registration of documents. varying. adding to.000. no evidence of any oral agreement or statement shall be admitted. Proviso (2) – The existence of any separate oral agreements to matter on which a document is silent. Proviso (5) – Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved. no oral evidence can be given to qualify the terms of the document and their representatives-in-interest from giving oral evidence concerning the contents of the document. The court followed Bai Hira Devi v. or inconsistent with. if the consideration was mentioned as rs. and which is not inconsistent with its terms. or a mistake in fact or law. Provided that the annexing of such incident would not be repugnant to. may be proved. may be proved. the Court shall have regard to the degree of formality of the document. Proviso (4) – The existence of any separate oral agreement. in fact the 13 AIR 1933 Cal. The amount which appeared due on a promissory note was not allowed to be contradicted by showing that the promise had only agreed it need not be paid. 10. Official Assignee13 where it was held that ―in the case of a conveyance. Proviso (3) – The existence of any separate oral agreement. The principle laid down that when the terms of any such document have been proved by the primary or secondary evidence of the document. as between the parties to the document or their representatives. a condition precedent to the attaching of any obligation under any such contract. grant or disposition of property. constituting.

21 . intimidation or illegality. for example. A written agreement. 3) Condition precedent {proviso-3} the third proviso provides that the existence of any separate oral agreement constituting condition precedent to the attaching of any obligation under the document may be proved. EXCEPTIONS 1) Validity of document {proviso-1} the first proviso to S. Such evidence is allowed subject to two conditions.consideration was less or more. or that one of the parties was incompetent to contract.‖ It was pointed out by the Madras High Court in its decision in K. in permitting the evidence of oral agreement the court is to have regard of the degree of formality of the document. the oral agreement should not be inconsistent with the terms stated in the document. Narasimhachari v. Bank14 that the consideration is a term of the contract that while the parties can give evidence under proviso (1) Of the section to show that the document was invalid because there was no consideration or there was failure of consideration or difference in the kind of consideration than that mentioned in the document. Secondly.S. Indo Comml. Where the parties to a promissory note payable on demand.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. If there is any oral agreement as to the time of payment of the same may be proved. or that the document was not duly executed. The terms which are expressly stated in the document cannot be allowed to be contracted by any oral agreement. firstly. it will not be competent for him to prove a variation of the consideration recited in the document. on ground that it was obtained by fraud. evidence of an oral agreement shall not be allowed even on matters on which the document is silent. The validity of a document may be questioned. for example. 2) Matters on which document is silent {proviso-2} evidence can be given of an oral agreement on a matter on which the document is silent. If the document is extremely formal. orally agreed that payment would not be demanded for five years. or that there was a mistake of fact or of law or that there was no consideration or consideration had failed. 14 AIR 1956 Bom. is silent as to the time of payment of the price. 721. the Supreme Court allowed the oral agreement to be proved. Such evidence is allowed to be proved only on matters on which the document is silent.

22 . In a mortgagor‘s suit for rejection it was held that oral evidence could be admitted to show that the document was not intended to be acted upon. The usage should not be repugnant to or inconsistent with the document. subject to one qualification stated in the proviso itself. he cannot afterwards set up the defence of an oral condition precedent to liability. where a written contract says that it subject to the ―usual clause‖. however. 5) Usages and customs {proviso-5} the proviso. the Supreme Court cited the following passage from Halsbury: ―The evidence of the conduct of the parties in this situation as to how they understood the words to mean can be considered in determining the true effect of the contract made between the parties. Facts. 4) Recession or modification {proviso -4} to rescind a document means to set it aside and to modify means to drop some of it as cancelled or to modify some of its terms. The facts upon which the document is to operate are sometimes set out in the contract itself and sometimes not. 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. however. In such cases the property to which the document relates can be proved by oral evidence. In Abdullah Ahmed v. Where. where the contract is one is required by law to be in writing. Where goods sold are to be carried by the railways. This is. or where it has been registered according to the law relating to registration of documents. Similarly. a person transfers the whole of his property. The section does not fetter the power of the court to arrive at the true meaning of a document as disclosed by all the relevant surrounding circumstances. Extrinsic 15 AIR 1980 SC 143. for example. but the contract does not mention as to who is to arrange for wagons. for otherwise it would nullify the document. the usage prevalent in a particular trade may be proved by oral evidence.If the party liable under a document has already stated making payments under it. Oral evidence is also receivable to throw light upon the nature of a document. therefore. that it was a sham document and that it was executed only as a collateral security. then proof cannot be given of any oral agreement by which it was agreed either to resigned the document or to modify its terms. provide that the existence of any usage or a custom by which incidents are attached to a particular type of contract can be proved. such oral agreement may be proved. but doesn‘t describe or state where his property is. evidence may be offered that by the custom of the trade seller had to arrange for wagons. Animendra Kissen15. showed no evidence to that effect. 6) Relation of language of facts {proviso-6} every contract intended to apply to certain facts. namely.

23 . EXCEPTION -2 Wills Wills admitted to probate in India may be proved by the probate.‖ EXCEPTION -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. The document containing the will need not be produced. is a sufficient proof of the content of the will. Evidence of the facts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument. therefore.evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. ―Probate‖ is copy of the will certified under the seal of the court and. 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.

CONCLUSION After an exhaustive researcher. When the terms of a contract. the researcher has a point of view that documentary evidence are more important and have more judicial than oral evidence. except the document itself. or of any other disposition of property have been reduced to the form of a document. We cannot deny the value of them and relevancy of them but documentary prove to be very useful. and in all cases in which any matter is required by law to be reduced to the form of a document. no evidence shall be given in proof of the terms of such contract. grant or other disposition of property. or of such matter. or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained. 24 . or of a grant.

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