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S.

Jain Subodh Law College

Documentary Evidence An Analysis

Project Submission as per fulfillment of Evidence Law

Submission To:

Submitted By:

Mr. Zeeshan Hashmi

Shubham Githala

FACULTY OF EVIDENCE LAW

Roll no: - 10

S.S. Jain Subodh Law College

IX Semester

TABLE OF CONTENTS

Acknowlegement
Certificate

1.
2.
3.
4.
5.
6.
7.
8.

Introduction.5
Modes of Proof.7
Documentary Evidence..11
Primary Evidence...13
Secondary Evidence14
The Exclusion of Oral By Documentary Evidence...18
Exceptions.21
Conclusion25

Bibliograph

CERTIFICATE

This is to certify that Shubham Githala of IX Sem of (B.A.LL.B) has prepared and submitted
the project report enclosed with under my direct and close supervision that this is a bonafide
piece of work done by him. It has not been submitted to any other university or it has it been
published at any time earlier.

Mr. Zeeshan Hasmi

ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to Mr. Zeeshan
Hashmi for inspiring me and guiding me during the course of this project work and also for her
cooperation and guidance from time to time during the course of this project work on the topic.

JAIPUR
10TH Jan. 2017

Shubham Githala

Introduction
Evidence is the material on the basis of which the Court can decide the case. Such evidence must
be produced before the Court so that it can establish or disprove the point of contention between
the parties. The Law of evidence is a very crucial piece of legislation which helps and guides the
court in arriving at a conclusion with regard to the existence or non-existence of facts. The rules

of evidence are necessary to bring out the truth in every case and the Court should stick to such
rules. Basically, the rules of evidence are required to draw a line between relevant and irrelevant
facts. There will be great uncertainty with regard to relevant matters, if the court started
depending upon the discretion of the Judge in such matters in every case.
In contrast to the substantive laws, which deal with rights and liabilities, law of evidence is a
procedural law which provides rules with regard to introduction of evidence to support the case
and covers the fundamental principles of proof of facts, its type, quality and quantum etc in a
legal proceeding. The Law of evidence is said to be the law of the forum or the lex fori.
The concept of burden of proof is also essential in the law of evidence. The concept is differently
applied in civil and criminal cases. Burden of proof broadly means that whoever wants the Court
to give a judgement as to any right or liability which is dependent on certain facts must prove
existence of such facts. When a person is bound to prove certain existence of facts, it is said that
the burden of proof lies on that person.
For deciding a civil case, preponderance of probability is sufficient. Preponderance of probability
means existence of a greater weight of evidence which is valuable to determine the offence and
sufficient enough to incline a fair and impartial mind to one side of the issue. The Judge
generally takes into consideration that evidence which is persuasive and outweighs the other
side. On the other hand in a criminal case, the burden of proof is on the prosecution which should
be proven beyond reasonable doubt. The highest standard of proof which must be met in a trial
court is that of beyond reasonable doubt. This means that the judge has no doubt of the
defendants guilt.
Section 3 of The Indian Evidence Act, 1872 defines oral evidence and documentary evidence.
The Act says that all those documents which are presented in the court for inspection are
documentary evidence.

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. There is a crowded road for example people
are moving, vehicle are moving. Everyone is running at unmitigated speed suddenly two vehicles
run against each other. 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.
In each case the nature and cause of the accident would be in question.
The facts which led up to the climax will have to reconstruct before the court. So that judge is
able consider the real happening. 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. Thus, 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.
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.
The means by which facts are proved are governed by the law of evidence.
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. 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. It is procedural law which provides inter
alike how a fact is to be proved.
The evidence means any things by which any alleged matter of
facts is either establish or disproved. Anything that makes the thing in question evidence to the
court evidence. 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.
Even in criminal matter also there can be evidence by means of electronic records including
video- conferencing.

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. If the
happening of the fact is recorded on any thing apart from human meaning, that record is also an
evidence of happening thus, evidence can be defined as any material which tends to persuade the
court of the truth or probability of some fact asserted before.

MODES OF PROOF

Oral evidence

Oral Evidence Section 591:- All facts, except the [contents of documents or electronic records]
contents of documents, may be proved by oral evidence.

Definition of oral evidence :- Sec 3


The meaning of expression
Oral evidence is given along with the definition of the term evidence in Sec 3. This first part
of the provision which defines evidence deal with oral evidence it says: - 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.

Oral evidence is evidence which is confined to words spoken by the mouth.

1 Indian Evidence Act, 1872.

Words of the Section:- 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.

Contents of document can not be proved by oral evidence :It is rule of evidence not one of technically but of substance that, where written documents exist
they shall be produced as being two best evidence of their own contents.

What fact may be proved by oral evidence: - Oral evidence may suffice to prove possession
oral evidence of credible would be sufficient to prove a little by prescription.

Oral evidence weigh and value: - 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.

SECTION 60._ Oral evidence must be direct2


Oral evidence must, in all cases whatever, be direct; that is to say
if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard
it;
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 a witness who says he perceived it by that sense or in that manner;
2 Indian Evidence Act, 1872.

if it refers to an opinion or to the grounds on which that opinion is held, 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, and
the grounds on which such opinions are held, may be proved by the production of such treatises
if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot
be called as a witness without an amount of delay or expense which the Court regards as
unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other
than a document, the Court may, if it thinks fit, require the production of such material thing for
its inspection.

PRINCIPLE:- 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. Where
this can not be had as is generally the case in the proof of fact by oral testimony.

Testimonial elements:- When a witness statement is offered as a basis of an evidence in


reference inference to the fact stated. 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. Thus the nation of perception that the external event has is some way or
other impressed itself on correspond to the witness, then should adequately respected or
correspond to the fact itself as it objectively existed or exist. The strength of the inference
depends on the probability of a fairly accurate on the part of witness.

General human trails affecting testimony: - But the individual witness testimony is affected
not merely by the condition inherent in there three elements of testimony, but also by enabled to
generalize. These generalize common to large of individual may at time find him set.

Race:- In respect to the element of testimony perception, 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.
In this connection there are several more condition pertaining to general sense perception. First
of all there is that so called vicariousness of sense which Substitute. One sense for another in
representation.The vicariousness of visual sensation are the most humerous and the most
important. 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.

CASE:ASHOK KUMAR ROUT & ETC V/S STATE OF BIHAR3

FACT: - 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. There is distinction
between proving the faction of statement and proving truth of statement.
It is admissible if such evidence proposes to establish only the faction of statement made by
Other person and not the truth of statement. Guidance of informant only proposed to establish
Faction of statement which was given to him by eye witness. Therefore, it is admissible and it
Cannot be rejected.

Documentary evidence

MEANING: the expression documentary evidence as it is defined in section 34, means:


3 AIR 2000 MP 1920

[All documents including records produced for the inspection of the Court] such documents are
called documentary evidence.
The expression document is defined in section 3 as follows:
Document- means any matter expressed or described upon any substance by means of letter,
figures or makes, or by more than one of those means, intended to be used, or which may be
used, for the purpose of recording that matter.
S.3 defines the term evidence as meaning and including oral and documentary evidence. All
evidence comes to the tribunal either as the statement of a witness or as the statement of a
document, i.e., oral or documentary evidence. The present chapter deals with the documentary
evidence, i.e., the mode of proof of contents of documents old documents either by primary or
secondary evidence, the types of documents, viz., public and private documents of the
presumptions as to the documents. Father we are going to deal with the 3 main aspects :
a) How documents are to be proved the manner of,
b) What are the presumptions about the various kinds of documents, 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. Etymologically the word means something which shows or teaches and is
evidential or informative in its character. Where the statement of parties containing the terms of a
compromise were recorded by a court and duly signed, it was to be held to be a document with
regard to recorded tape, it was said that there is no reason in principle why the recording in
recording in some permanent or semi-permanent manner of human voice (or other sounds) which
are relevant to the issue to the determined, provided that it furnishes information, cannot be a
document. In reception to the reception into evidence of models, maps, diagrams and photos, it
is to observe in WIGMORE that for evidentiary purposes they are nothing except so far as they

4 Indian Evidence Act, 1872.

have a human beings credit to support them. Then they become media of communication as a
superior substitute for words.

R.M.Malkani v. State of Maharashtra5


The accused, which an appealed to the Supreme Court against his conviction, was the coroner of
Bombay. A doctor, who was running a nursing home, operated upon a patient who afterwards
died. It, being a post-operation death, becomes the subject of post-mortem and inquest. The
coroner persuaded the doctor to pay him a sum of money if he wanted the report to be favorable
to him. 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. The police
commissioner was called with the tape-recording mechanism. This was connected to the doctors
telephone and thus the most incriminating conversation was recorded in the presence of the
police officer.
The Bombay High Court held that the testimony of the two doctors required corroboration and
that the tape amply corroborated it. The decision was upheld by the Supreme Court.

N.Sri Rama Reddy v. V.V. Giri & Pratap Singh v. State of Punjab6
The court accepted conversation of dialogue recorded on tape-recording machine as admissible
evidence.
S.61 Proof of contents of documents: The contents of document may be proved either by
primary or secondary evidence. Law of best evidence requires the best evidence must be given in
proof of the facts in issue or the other relevant facts. Primary evidence is the best evidence. The
best evidence rule is to produce the original and secondary evidence is not admissible unless the

5 AIR 1989 SC 299


6 2001 (4) Crimes 83 (AP)

original is proved to be lost, etc, as required under section 65. Contents may be proved, i.e., in
other words, there are no degrees of secondary evidence.
In India the rule is the same as in England. 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. Where admissions were made in a written statement by the plaintiffs predecessors-ininterest which was filed in several judicial proceedings regarding the rights in the suit property, a
certified copy of the written statement was held to be admissible in proof of the settled rights to
the property. Where the document carried adhesive stamps which belonged to a period prior to
six months from the date of purchase, the court said that such document could not be attached in
evidence. 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 the document is to be proved to be genuine? {67-90}
3. How far and in what cases the oral evidence is executed by documentary evidence? {91-109}

SECTION 62._ Primary evidence:Primary evidence means the documents itself produced for
the inspection of the Court.
Explanation 1 - Where a document is executed in several parts, each part is primary evidence of
the document:
Where a document is executed in counterpart, each counterpart being executed by one or some of
the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2- Where a number of documents are all made by one uniform process, as in the
case of printing, lithography, or photography, each is primary evidence of the contents of the rest;
but, where they are all copies of a common original, they are not primary evidence of the
contents of the original.
Illustrations:- A person is shown to have been in possession of a number of placards, all printed
at one time from one original. Any one of the placards is primary evidence of the contents of any
other, but no one of them is primary evidence of the contents of the original.

SECTION 63._ Secondary evidence:


Secondary evidence means and includes(1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves ensure the
accuracy of the copy, and copies compared with such copies.
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a documents given by some person who has himself seen it
Illustration:(a) A photograph of an original is secondary evidence of its contents, though the two have not
been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of
the contents of the letter, if it is shown that the copy made by the copying machine was made
from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary
evidence; but he copy not so compared is not secondary evidence of the original, although the
copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a
photograph or machine copy of the original, is secondary evidence of the original.

CASE:K. LAXMANAN V/S THEKKAYI PADMINI AND OTHERS7


FACT:-

Onus of proving the will is on the pro-ponder. The Pro-ponder has to prove the

legality of execution and geniuses of the will by proving absence of suspicious circumstances
surrounding the testator capacity and the signature of the testator. When there are suspicious
circumstances regarding the execution of the will, the onus is also on the pro-ponder to explain
then to the satisfaction of the court and only when such responsibility is discharged. The court
would accept the will as genuine.

SECTION 64._ Proof of documents by primary evidence:Documents must b proved by primary evidence
except in the cases hereinafter mentioned.
Section 64 lays down the best evidence with reference to documentary evidence. It says that the
best evidence of the contents of the document is the document itself i.e., the original document.

SECTION 65._ Cases in which secondary evidence relating to documents may


be given:-

7 AIR 2009 S.C 951

Secondary evidence may be given of the existence,


condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against
whom the document is sought to be proved, or of any person out of reach of, or not subject to,
the process of the Court, or of any person legally bound to produce it, and when, after the notice
mentioned in Section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in
writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its
contents cannot, for any other reason not arising from his own default or neglect, produce it in
reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any
other law in force in India to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot
conveniently be examined in Court, and the fact to be proved is the general result of the whole
collections.
In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is
admissible.
In case (g), evidence may be given as to the general result of the documents by any person who
has examined them, and who is skilled in the examination of such documents.

Case:- Gopal Krishna Kumar V. Puran Singh


The Document reffering to payment by cheque, excuted by defenedant in favour of plaintiff. The
impugned document could be said to be said to be in possession of defendant.
The plea of defendant that the said document was is in possession of income tax department.
Best evidence which was very foundation of said document was also in possession of defendant.
It was held by Punjab & Haryana High Court that grant of permission to plaintiff to lead
secondary evidence in respect of it was proper. It should not be intrerfered with. However the
permission should stand subject to the condition that leave be granted to the plaintiff to summon
witness from income tax department.

SECTION 66._Rules as to notice to produce:Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall
not be given unless the party proposing to give such secondary evidence has previously given to
the party in whose possession or power the document is, 1*[or to his attorney or pleader,] such
notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such
notice as the Court considers reasonable under the circumstances of the case: Provided that such
notice shall not be required in order to render secondary evidence admissible in any of the
following cases, or in any other case in which the Court thinks fit to dispense with it:-(1) When the document to be proved is itself a notice;
(2) When, from the nature of the case, the adverse party must know that he will be required to
produce it;
(3) When it appears or is proved that the adverse party has obtained possession of the original by
fraud or force;
(4) When the adverse party or his agent has the original in Court;

(5) When the adverse party or his agent has admitted the loss of the document;
(6) When the person in possession of the document is out of reach of, or not subject to, the
process of the Court

THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

S.918 deals with the Evidence of terms of contracts, grant and other dispositions of property
reduced to form of document which reads as:
When the terms of a contract, or of a grant, or of any other disposition of property have been
reduced to the form of a document, 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, except the document itself, or
secondary evidence of its contents in cases in which secondary evidence is admissible under the
provisions herein before contained.

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, the writing by which he is appointed
need not be proved.
Exception 2 Wills admitted to probate in India may be proved by the probate.
Explanation 1 This section applies equally to cases in which the contracts, grants or
dispositions of property referred to are contained in one document, and to cases in which they are
contained in more documents than one.
8 Indian Evidence Act, 1872.

Explanation 2 Where there are more originals than one, one original only need be proved.
Explanation 3 The statement, 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.
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. According to the High court of Delhi, it did not permit oral
evidence of the contents of a partition deed which deed was inadmissible being not registered9.
Once it is shown that the original document is not admissible in evidence because of
insufficiency of stamps, secondary evidence by way of oral statement or Xerox copy cannot be
allowed. Allowing the party to confront the witnesses with Xerox copy of such evidence was
held to be not permissible. The section forbids the proof of the contents of a writing otherwise
than by the writing itself. The section embodies the best evidence rule, thus declaring a doctrine
of substantive law. Even a third party, who is seeking to prove a written contract, can prove it
only by producing the writing. In this respect S.91 and 92 supplement each other. They are both
based on the best evidence rule though they differ in some material particulars also.
The Supreme Court held in Taburi Sahai v. Jhunjhunwala 10, that a deed of the adoption of 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. So is true of a will. Further the principle of
exclusion of all other evidence applies only to the terms happens to be mentioned in a contract,
the same can be proved by any other evidence than by producing 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. There is nothing in the act
requiring that the documentary evidence should prevail over the oral evidence.

9 AIR 1985 SC 289


10 AIR 2006 SC 1800

S.9211 deals with the Exclusion of evidence or oral agreement and reads as-:
When the terms of any such contract, grant or other disposition of property, 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, as between the parties
to any such instrument or their representatives in interest, for the purpose of contradicting,
varying adding to, or subtracting from, its term:
Proviso (1) Any fact may be proved which would invalidate any document, or which would
entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality,
want for due execution, want of capacity in any contracting party, want or failure of
consideration, or a mistake in fact or law.
Proviso (2) The existence of any separate oral agreements to matter on which a document is
silent, and which is not inconsistent with its terms, may be proved. In considering whether; r not
his proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3) The existence of any separate oral agreement, constituting, a condition precedent to
the attaching of any obligation under any such contract, grant or disposition of property, may be
proved.
Proviso (4) The existence of any separate oral agreement, constituting, a condition precedent to
the attaching of any obligation under any such contract, grant or disposition of property, may be
proved, except in cases in which such contract, grant or disposition of property, is by law
required to be in writing, or has been registered according to the law in force for the time being
as to the registration of documents.
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.
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the
express terms of the contract.

11 Indian Evidence Act, 1872.

Proviso (6) Any fact may be proved which shows in what manner the language of a document
is related to existing facts.
The principle laid down 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
purposes 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 and their
representatives-in-interest from giving oral evidence concerning the contents of the document.
Other parties left free to give such evidence.
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. The court followed Bai Hira Devi
v. Official Assignee12 where it was held that in the case of a conveyance, it would not be open
to either of the parties to the document to prove that, if the consideration was mentioned as rs.
10,000, in fact the consideration was less or more. It was pointed out by the Madras High Court
in its decision in K.S. Narasimhachari v. Indo Comml. Bank 13 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, it
will not be competent for him to prove a variation of the consideration recited in the document.

EXCEPTIONS
1) Validity of document {proviso-1} the first proviso to S.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. The validity of a document may be questioned, for
example, on ground that it was obtained by fraud, intimidation or illegality, or that the document
12 AIR 1933 Cal. 559
13 AIR 1956 Bom. 721.

was not duly executed, or that one of the parties was incompetent to contract, or that there was a
mistake of fact or of law or that there was no consideration or consideration had failed.
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. 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 contracted by any oral
agreement. Such evidence is allowed to be proved only on matters on which the 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. A written
agreement, for example, is silent as to the time of payment of the price. If there is any oral
agreement as to the time of payment of the same may be proved.
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. Where the parties to a promissory note payable on demand, orally
agreed that payment would not be demanded for five years, the Supreme Court allowed the oral
agreement to be proved.
If the party liable under a document has already stated making payments under it, he cannot
afterwards set up the defence of an oral condition precedent to liability. In a mortgagors suit for
rejection it was held that oral evidence could be admitted to show that the document was not
intended to be acted upon, that it was a sham document and that it was executed only as a
collateral security. Facts, however, showed no evidence to that effect.
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; such oral
agreement may be proved. This is, however, subject to one qualification stated in the proviso
itself, namely, where the contract is one is required by law to be in writing, or where it has been
registered according to the law relating to registration of documents, then proof cannot be given
of any oral agreement by which it was agreed either to resigned the document or to modify its
terms.

5) Usages and customs {proviso-5} the proviso, therefore, provide that the existence of any
usage or a 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 would nullify the document. Where goods sold
are to be carried by the railways, but the contract does not mention as to who is to arrange for
wagons, evidence may be offered that by the custom of the trade seller had to arrange for
wagons.
6) Relation of language of facts {proviso-6} every contract intended to apply to certain facts. The
facts upon which the document is to operate are sometimes set out in the contract itself and
sometimes not. Where, for example, a person transfers the whole of his property, but doesnt
describe or state where his property is. In such cases the property to which the document relates
can be proved by oral evidence. Similarly, where a written contract says that it subject to the
usual clause, the usage prevalent in a particular trade may be proved by oral evidence. Oral
evidence is also receivable to throw light upon the nature of a document. 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.
In Abdullah Ahmed v. Animendra Kissen14, 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. Extrinsic evidence to determine the effect of an instrument is permissible where there
remains a doubt as to its true meaning. 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.

EXCEPTION -1 Appointment of a Public Officer

14 AIR 1980 SC 143.

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.

EXCEPTION -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 copy of the will certified under the seal of the court and,
therefore, is a sufficient proof of the content of the will.

CONCLUSION
Document evidence has more value than the oral evidence. Court is bound to accept the
documentary evidence. But oral evidence may take in consideration. It also need to some
corroboration. In brief it is submitted that two types of evidence are given by the parties oral and
documentary evidence.
In courts the value of oral evidence is less than documentary
evidence. Because the law always requires the best evidence oral evidence is a evidence is a
evidence which is confined to the words spoken by the mouth. On another side documentary
evidence are of two types. Primary evidence is more reliable and best evidence consider by
court. In the absence of primary evidence, secondary evidence is that which the witnesses are
giving on the basis of his own perception. Where as primary evidence is the original document
which is presented to the court for its inspection.
Direct evidence is best oral evidence of fact to be proved. But primary
evidence is the best evidence in all circumstances. There is also exclusion of oral evidence by
document evidence document also of two kinds ambiguous and non ambiguous. The person
giving direct evidence available for cross examination for testing its veracity. No notice is
requiring before giving primary evidence.
The source of direct evidence is the person who present in the court
and giving evidence but on the opposite side value of primary evidence is the highest value.
From the above discussion primary evidence has more than oral evidence.

BIBLIOGRAPHY

For research work I have used no. of reference books. Those are as follows:BOOK REFERRED:1. The Law of Evidence..........................................................Mr.Batuk Lal
2. The Principle of law of Evidence......................................Dr Avtar Singh
3. The Law of Evidence..........................................................Mr.Rattan Lal & Dhiraj Lal
4. Basus Law of Evidence.....................................................Mr. P.M Bakshi