Research Assignment

Law of Evidence

TOPIC

“PRINCIPLES REGARDING
EXCLUSION OF ORAL BY
DOCUMENTRY EVIDENCE”

Submitted by- Submitted to-

MD AHMAR MATIN Mr. Gaurav Gupta

B.A .LL.B (Hons.) Regular Faculty of law, JMI
7TH Semester, 4TH Year
Roll No. – 28

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 ACKNOWLEDGEMENT

I would like to express my deepest gratitude to all those who provided

me with the possibility to complete this assignment.  A special thanks to
my teacher, Mr. Gaurav Gupta, whose contribution in providing
suggestions and encouragement, helped me coordinate this assignment.

Furthermore, I would also like to acknowledge with much appreciation

the crucial role of the staff of Jamia Millia Islamia, who gave me the
permission to use all the necessary equipment and the required
materials to complete this assignment.

A special thanks goes to my classmates and friends who helped me

assemble the parts and gave their valuable suggestions.

Md Ahmar Matin!

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 TABLE OF CONTENTS

 INTRODUCTION………………………………………………………….4
 ORAL EVIDENCE SECTION 59……………………..……………….....5
 ORAL EVIDENCE MUST BE DIRECT…………………………………6
 PROOF OF CONTENTS OF DOCUMENTS……………………………9
 PRIMARY EVIDENCE………………………………………………….10
 EVIDENCE OF TERMS OF CONTRACTS, GRANTS AND OTHER
DISPOSITIONS OF PROPERTY REDUCED TO FORM OF
DOCUMENT……………………………………………………………...11
 EXCLUSION OF EVIDENCE OR ORAL AGREEMENT……………15
 INTER RELATION BETWEEN SECTION 91 AND 92………………19
 DISTINCTION BETWEEN LATENT AND PATENT AMBIGUITY.20
 EXCLUSION OF EVIDENCE TO EXPLAIN OR AMEND
AMBIGUOUS DOCUMENT…………………………………………….21
 EXCLUSION OF EVIDENCE AGAINST APPLICATION OF
DOCUMENT OF EXISTING FACTS…………………………………..22
 EVIDENCE AS TO DOCUMENT UNMEANING IN REFERENCE TO
EXISTING FACTS………………………………………………………23
 EVIDENCE AS TO APPLICATION OF LANGUAGES WHICH CAN
APPLY TO ONE ONLY OF SEVERAL PERSONS………………….24
 EVIDENCE AS TO APPLICATION OF LANGUAGE TO ONE OF
TWO SETS OF FACTS TO NEITHER OF WHICH THE WHOLE
CORRECTLY APPLIES………………………………………………..25
 CONCLUSION……………………………………………………………25
 BIBLIOGRAPHY………………………………………………………...26

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 INTRODUCTION

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.

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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
anything 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:-

1. Oral evidence
2. documentary evidence

Oral Evidence Section 59:- 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.

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 cannot 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.

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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 direct

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;

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.

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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 cannot 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 humorous and the most important. Anybody
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.

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CASE:-

ASHOK KUMAR ROUT & ETC V/S STATE OF BIHAR1

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.

" Document"." Document" 1[means any matter expressed or described upon any substance by
means of letters, figures or marks, or by more than one of those means, intended to be used, or
which may be used, for the purpose of recording that matter.

Illustrations: - A writing 2[ is a document: 2[ Words printed lithographed or photographed are

documents:

A map or plan is a document: An inscription on a metal plate or stone is a document: A

caricature is a document.

" Evidence" means and includes-- (1) all statements which the Court permits or requires to be
made before it by witnesses, in relation to matters of fact under inquiry; such statements are
called oral evidence; (2) all documents produced for the inspection of the Court; such documents
are called documentary evidence." Proved." A fact is said to be proved when, after considering
the matters before it, the Court either believes it to exist, or considers its existence so probable
that a prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it exists." Disproved." A fact is said to be disproved when, after considering the
matters before it, the Court either believes that it does not exist, or considers its non- existence so
probable that a prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it does not exist." Not proved." A fact is said not to be proved when it is neither

1
2006 CriLJ 3362.

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proved nor disproved." India." 3[India" means the territory of India excluding the State of
Jammu and Kashmir.]

SECTION 61._ PROOF OF CONTENTS OF DOCUMENTS:-

The contents of documents may be proved either by primary or by secondary evidence.

DOCUMENTARY EVIDENCE:-

The word ‘document’ has been defined in section 3 of the evidence act document means any
matter expressed or described upon any substance by means of letter, figures or marks or by
more than one of those means intended to be used or which may be used for the purpose of
recoding that matter.

The most common document with which we have to deal is a document which is described by
letters. Generally we have to deal with things written in some language like Hindi, Urdu and
English etc. Under the following sections we have to see as to when there is a document the
contents of which is material for the decision of case how those contents are brought before the
court. The subject of documentary evidence can be for purpose of intelligible reading, divided
into three parts:

1. How the contents of a document are to be proved? (Sec 61 to 66)

2. How the document is to be proved to be genuine? (Sec 67 to 90)
3. How far and in what cases the oral evidence is excluded by documentary evidence? (Sec
91 to 109)

The contents of documents must be proved either by primary or secondary evidence. It means
that there is no other method allowed by law for proving the contents of documents. An ex-parte
affidavit without affording an opportunity to be other party to test the veracity of its contents by
cross-examination cannot be a proof of its contents.

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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.

Primary evidence- Primary evidence means the (original) document itself produced for the
inspection of the court. Where a judgment originally written in English was translated into Urdu
and the judge signed the translation. It was held that it was a primary evidence of its contents. 2 If
accounts be merely memoranda and rough books from which regular account- books are
prepared the former can hardly be said to be primary evidence.

Explanation. The first portion of the first explanation of the section refers to what are known
as duplicate, triplicate or the like original. Sometimes it is convenient that each party to
transaction should have a complete document in his possession. To fulfill this purpose, the
document is written as many times as there are parties and each document is signed by all the
parties. All of them are originals,

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.

2
Jai Gopal v. Sheo Sagar, 8 IC 579.

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SECTION 91._ Evidence of terms of contracts, grant and other dispositions of
property reduced to form of document - 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.

Explanation 2. -Where there are more originals than one, one original only need be proved.

Explanation 3. -The statement, in any documents 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.

Illustrations

(a) If a contract be contained in several letter, all the letters in which it is contained must be
proved.

(b) If a contract is contained I a bill of exchange, the bill of exchange must be proved.

(c) If a bill of exchange is drawn in a set of three, one only need be proved.

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(d) A contracts, in writing with B, for the delivery of indigo upon certain terms. The contract
mentioned the fact that B had paid A the price of other in contracted for verbally on another
occasion.

Oral evidence is offered that no payment was made for the other indigo. The evidence is
admissible.

(e) A gives B a receipt for money paid by B.

Oral evidence is offered of the payment.

The evidence is admissible.

(f) A sells his Dog for Rs. 100 to B: In this case no written deed is compulsory.

(g) B wants to mortgage the dog for Rs. 100 to C: No written deed is mandatory.

(h) B pays Rs. 100 to C and takes back the possession of the dog.

All of the above-mentioned transaction will be valid even without a written deed.

But, there are many documents and matters of the court which are considered mandatory by the
law to be in writing and registered e.g., judgment and decrees, the deposition of witnesses, when
an accused person is examined etc.

Orally, many contracts, grants and other depositions can be affected but reducing the terms of the
contract on which the party agrees in a document is considered to be the best evidence for the
terms of that contract. When reduced to documents, it acts as the best evidence. Even if the
document is lost or in adversary possession secondary evidence as described under section 65
can be produced before the court.

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The principle behind section 91

Section 91 of the Evidence Act, lays down the provision for the situation when the terms of the
contract, grant or depositions of properties have been reduced in the document even though it is
required under law to be reduced into the document. In this condition, if the proof is required, the
document itself is required to be produced or if the secondary evidence is admissible then the
secondary evidence can be used.

Rules to be followed for the exclusion of oral evidence by documentary evidence

The admission of the oral evidence for proving the contents of a document is excluded under
section 91 except where the secondary evidence is considered admissible. The oral evidence is
also excluded under section 92 for contradicting the terms of a contract where the deed is proved.
So, the rules laid down by these sections can be considered as an exclusive rule as held in the
case of  Raja Ram Jaiswal v. Ganesh Prasad.3

According to the rule laid down under section 91 of the Indian Evidence Act, no evidence can be
produced before the court to prove the statement when the terms of a contract are reduced in
writing except the document itself and under certain circumstances, the secondary evidence.

The oral evidence excluded under section 91 in case of a deed only when the deed contains the
terms of a contract or some property is disposed of through it or the law binds the contents of the
document to be in writing. As held in the case of Tahuri Shal v. Jhunjhunwala4, a law does not
make the adoption to be in writing mandatory. The deed of adoption is just a record of the fact
adoption has taken place. No rights are created by it. It is no more than a piece of evidence and
when a party fails to produce it, the law does not bar him from producing oral evidence.

3
AIR 1959 All 29.
4
1967 AIR 109.

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Any matter required to be in writing by law

When a particular matter is required to be in writing by law then it cannot be substituted by oral
evidence. Some of the examples of the documents that are required to be in writing by law are
judgments, an examination of witnesses in civil as well as criminal cases, deeds of conveyance
of land, deed for partition, a will and many more.

Exceptions to Section 91

Exception 1: Appointment of a public officer by the way of writing

As per the general rule, to prove the content of writing, the writing itself is required to be
produced before the court and in case of its absence, secondary evidence may be given. But,
there is an exception to this rule. When a public officer is appointed and the appointment is
required to be made in writing and if it is shown before the court that some person has acted as
the officer by whom the person has been appointed, then the writing by which he has been
appointed needs not to be proved.

Illustration

A question arises whether A is a judge of the High Court, then the warrant of appointment is not
required to be proved. The fact that he is working as a judge of the High Court will be proved.

The fact that a person is working in the due capacity of his office is also evidence of that
person’s appointment in the office.

Exception 2: When probate has been obtained on the basis of a will

Another exception of the general rule of the writing to be produced itself is that when on the
basis of will probate has been obtained and if later, the question arises on the existence of that
will, the original will is not required to be produced before the court. 

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This exception requires proving the contents of the will by which the probate is granted. The
term “probate” stands for the copy of a certificate with the seal of the court granting
administration to the estate of the testator.

The probate copy of the will is secondary evidence of the contents of the original will in a strict
sense but it is ranked as primary evidence

Explanations under Section 91

The explanations of section 91 state that it is not necessary for a written document to be
comprised in a single document. A contract or grant which is executed can be in a single
document or can be comprised of several documents. Section 91 applies in both conditions i.e.,
whether the contracts are comprised of a single document or in several documents.

Another explanation laid down under section 91 is that when there is more than one original
document, then only one of them is required to be presented before the court.

SECTION 92._ Exclusion of evidence or oral agreement -

Section 92 of the Indian Evidence Act lays down the provision that when as laid down under
section 91 the documents which are required to be in writing such as the terms of the contract,
grant or other deposition of property or any other matter required by the law in writing then the
court cannot allow being lead by oral evidence to the party contract or legal representative for the
purpose of contradicting, varying, addition or subtraction from the contract.

Section 92 comes into operation when the documents have been submitted under section 91 for
the purpose of contradicting, varying, addition or any modification from its terms.

Section 92 of the Act clarifies itself that only such oral arguments are excluded which
contradicts the terms of contract, deposition or any other matter required to be in writing. If such
a document is not a contract, grant or deposition of property, then the oral evidence can be
included to vary its content.

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Section 92 is applicable only to the parties to the instrument and not to the person who is a
stranger to the instrument. In the case of Ram Janaki Raman v. State,  it was held by the court
that the bar laid down by section 92 of the Act was not applicable under the Criminal proceeding.

Proviso (1): The facts which invalidate the document

If a fact will invalidate the contact then no man is debarred from proving that fact. According to
the laws of contract, any contract which is created by fraud or undue influence, it is not
enforceable and considered invalid. So, such facts are easy to prove in the circumstances when
the contract has been reduced into written form.

Proviso (2): Separate oral arguments

The term separate oral arguments in this context refer to the oral agreements made before
entering into the documents. The contemporaneous or prior oral agreements are referred to under
Proviso (2) of section 92.  

When there is a prior oral agreement on a matter about which the document is silent, then it can
be proved only when such terms of oral agreements are not in contradiction with the terms of the
contract.

So, as held in the case of Bal Ram v. Ramesh Chandra,5 the requirements of this proviso are:

1. On the matter on which the document is silent, a separate oral agreement should be
related to it.
2. Such oral agreement should not be inconsistent with the terms of the document.

Proviso (3): Separate Oral Argument as a condition precedent

The situation when an oral agreement is to the effect that it will not be effective or will not be
enforced unless a condition precedent is fulfilled or unless a certain event takes place, the oral

5
AIR 1973 Ori 13.

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agreements are admissible in this case to show that as such condition has not been performed, the
contract was not enforceable.

Proviso (4): Distinct oral agreement made subsequently to renew or modify the contract

To prove any subsequent oral agreement leading to alteration of terms of all the written contracts
except to the contracts which are required to be in writing by law evidence can be given.

When a transaction is reduced to writing which is not required by law to be in writing but the
agreement is made for the convenience of parties then an oral agreement made subsequently to
modify it is admissible.

Proviso (5): Any usage or customs by which incidents not mentioned in any contract are usually
annexed to contract

Parole evidence of usage and customs are always admissible. When the object is to make
intelligible before the court about the meaning in which the parties have used a parole evidence
may be given to prove any local custom of the general application, so that it may be applied to
the subject matter of the contract and bind the parties to the written contract unless such usage or
custom is inconsistent with the writing.

Proviso (6): Extrinsic evidence of surrounding circumstances

Whenever a document is required to be proved before the court, its object is to endeavor and
ascertain its real meaning and the extrinsic evidence are necessary for this purpose. The object of
admissibility of the evidence of the surrounding circumstances is to ascertain the real evidence of
the parties but from the language of the document, the intentions of parties must be gathered as
explained by extrinsic evidence.

Illustrations

(a) A Policy of insurance is effected on goods "In ships from Calcutta to London".

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The goods are shipped in a particular ship which is lost. The fact that the particular ship was
orally excepted from the policy, cannot be proved.

(b) A agrees absolutely in writing to pay B Rs.1000 on the first March, 1873. The fact that, at the
same time an oral agreement was made that the money should not be paid till the 31st March,
cannot be proved.

(c) An estate called "The Rampur Tea Estate" is sold by a deed which contains a map of the
property sold. The fact that land not included in the map had always been regarded as part of the
estate and was meant to pass by the deed cannot be proved.

(d) A enters into a written contract with B to work certain mines, the property 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.

(e) A institutes a suit against B for the specific performance of a contract, and also prays that the
contract may be reformed as to one of its provisions, as that provision was inserted in it by
mistake. A may prove that such a mistake was made as would by law entitle him to have the
contract reformed.

(f) A orders, goods of B by a letter in which nothing is said as to the time of payment and accepts
the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit
for a term still unexplored.

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words "Bought
of A horse for Rs.500". B may prove the verbal warranty.

(h) A hires lodgings of B, and gives B a card on which is written - "Rooms, Rs.200 a month". A
may prove a verbal agreement that these terms were to include partial board.

A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney is
made between them. It is silent on the subject of board. A may not prove that the board was
included in the terms verbally.

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(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and
does not send the money. In a suit for the amount A may prove this.

(j) A and B make a contract in writing to take effect upon the happening of a certain
contingency. The writing s left with B, who sues A upon it. A may show the circumstances under
which it was delivered.

INTER-RELATION BETWEEN SECTION 91 AND 92

Section 91 and 92 are supplementary to each other. Both sections support and complete each
other. When the terms of the contract, deposition of a property or any matter required to be in
writing under the law if proved by the document then the oral evidence is not required to
contradict it.

After a document has been produced to prove its terms under section 91, then the provisions of
section 92 play for excluding evidence of any oral agreement or statement for the purpose of
contradicting, varying, addition or subtraction from its terms.

Even though the two sections are supplementary to each other, both sections differ about some of
the opinions in particular. Section 91 deals with the documents whether or not they are having
the purpose to dispose off the rights or not but section 92 is applicable to the documents which
are dispositive in nature.

Section 91 applies to the document which is both bilateral and unilateral documents but section
92 applies only to the document which is of bilateral nature.

Latent and Patent Ambiguity

The rule about admission or exclusion of extrinsic evidence has been laid down under section 93
to 98 of the Indian Evidence Act. Such exclusion or admission of extrinsic evidence is in
connection with the facts contained in a document which either a contract or not.

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 The ambiguity in the language of a document can be divided into two categories:

1. Patent ambiguity
2. Latent ambiguity

A patent ambiguity is when the language of the document or deed is uncertain. The latent
ambiguity is an ambiguity which is not present in the deed but it arises due to extrinsic factors.

Test of difference

The test to find the difference that whether the ambiguity is a patent ambiguity or a latent
ambiguity is to put the document in the hands of an ordinary intelligent educated person.

1. If on reading the document the ambiguity can be detected and no definite meaning can
be understood then such ambiguity is patent ambiguity.
2. If on perusal of document no ambiguity can be found by him and the meaning is
definite but that document is applied with the instrument of facts, the ambiguity arises
and its meaning becomes indefinite, then the ambiguity is the latent ambiguity.

The distinction between Patent Ambiguity and Latent Ambiguity

S.No
Patent Ambiguity Latent Ambiguity
.

When the language of the document is so
uncertain and effective that no meaning can
1.
be granted to the document then it is called
as Patent Ambiguity.
When the language of a document is certain and
meaningful but the document makes no relevance
in the present circumstance then it is latent
ambiguity.

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 The patent ambiguity is personal in nature The latent ambiguity is of objective nature and it is
2. and it is related to the person executing the related to the subject matter and object of the
document. document.

Oral evidence is not allowed for the To remove latent ambiguity, oral evidence is
3.
removal of patent ambiguity. allowed.

The rule on which the patent ambiguity is Giving oral evidence in case of latent ambiguity is
4. based is that the patent ambiguity makes based on the principle the latent ambiguity does not
the document useless. make a document useless. 

Latent ambiguity is not evident from prima

A patent ambiguity is on the face of the
facie inspection of the document but it becomes
5. document and is evident from inspection of
apparent when the language of a document is
the document itself.
applied to existing circumstances

SECTION 93._Exclusion of evidence to explain or amend ambiguous

document -

When language used in a document is, on its face, ambiguous of defective, evidence may not be
given of facts which would show its meaning or supply its defect.

Illustrations

(a) A agrees, in writing, to sell a horse to B for Rs.1,000 or Rs.1,500.

Evidence cannot be given to show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of facts which would not show how they
were meant to be filled.

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Scope.-Section 93 deals with patent ambiguity- No oral evidence can be given to remove a
patent ambiguity. That is to say when the language used in a document is ambiguous on its very
face and no definite meaning can be given to it, no evidence can be given of facts which would
make its meaning clear. Where a deed is ungrammatical and cannot be read literally to give any
clear meaning, oral evidence cannot be given to supply the defect.

In Food Corporation of India v. Birendra Nath Dhar,6 there was document of contract. This
document contained a contract for transportation of food grains for two years. But the place
where the amount for transportation was to be mentioned was left blank. The minimum wage
Will be paid was not mentioned in the blank space where it should have been mentioned. The
contractor was giving different amount. Under section 93 of Evidence act, no oral evidence was
allowed to fill up the blanks in the document.

In the case of Keshav Lal v. Lal Bhai T. Mills Ltd.7,  it was held by the Supreme Court that it
would not be open for the parties or the court to remove the ambiguity or vagueness by relying
upon the extrinsic evidence.

SECTION 94._Exclusion of evidence against application of document of

existing facts:-

When language used in a document is plain in itself, and when it applies accurately to existing
facts, evidence may not be given to show that it was not meant to apply to such facts.

When there is neither a patent ambiguity nor a latent ambiguity then the evidence cannot be
given to contradict this.

Illustrations

A sells to B, by deed "my estate at Rampur containing 100 bighas" . A has an estate at Rampur
containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was
one situated at a different place and of a different size.

6
AIR 1989 NOC 119 CAL.
7
1958 AIR 512.

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Principle. Principle.-When there is neither patent nor latent ambiguity evidence cannot be
given to contradict this. That is to say when the language used in a document is plain in itself and
when it applies to existing fact no evidence can be given to show that it was meant to apply to
such fact. A executes a will to the effect bequeath my estate to my daughter Rani by name". A
has a daughter Rani by name. After A's death trouble arises for the possession and ownership of
the legacy of A between Rani and another daughter of A. Rani relies on the will. The other
daughter tries to advance evidence to prove that the intention of A was to will the estate to her. It
was by mistake that Rani's name was mentioned in the will. This evidence will be excluded by
Section 94. The rule embodied in this section is based on common sense. When any document
comes before a court for interpretation, it will first try to ascertain its meaning by working into
the language itself. When the words used in a peptide perfectly clear and free from ambiguity
and there no doubt or difficulty as to the proper application of those words to existing facts, no
oral evidence will be allowed to show that the parties intended to mean other than what they
have said.

In the case of General Court Marshal v. Col. Anil Tej Singh Dhaliwa 8l it was held by the
Supreme Court that section 94 applies only when the execution of the document is admitted
before the court and there are no vitiating circumstances against it.

SECTION 95._Evidence as to document unmeaning in reference to existing

facts:-

When language used in a document is plain in itself, but is unmeaning in reference to existing
facts, evidence may be given to show that it was used in a peculiar sense.

A sells to B, by deed "my house in Calcutta."

A had not house in Calcutta, but it appears that he had a house at Howrah, of which B had been
in possession since the execution of the deed.

These facts may be proved to show that the deed related to the house at Howrah.

8
1997 (64) DRJ 854.

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Principle. -Section 95 deals with latent ambiguity-Oral evidence can be given to remove latent
ambiguity of a document. The different kinds of latent ambiguities are dealt with in Sections 95,
96 and 97.

When the language used in document is plain but is unmeaning to existing facts due to some
mistake in description evidence can be given to show that it was used in peculiar sense.
According to this rule a false description does not invalidate the document.

SECTION 96._ Evidence as to application of languages which can apply to

one only of several persons - When the facts are such that the language used might have
been meant to apply to any one, and could not have been meant to apply to more than one of
several persons or things evidence may be given of facts which show of those persons or things it
was intended to apply to.

Illustrations

(a) A agrees to sell to B, for Rs.1,000 "my white horse". A has two white horse. Evidence may
be given of facts which show which of them was meant.

(b) A agrees to accompany B to Hyderabad. Evidence may be given of facts showing whether
Hyderabad in the Deccan or Hyderabad in the Deccan or Hyderabad in Sind was meant.

(c) A  agrees to sell his white cow to B for Rs. 2000 and in the deed he has mentioned “my white
cow”. A has two white cows. Evidence can be given to prove that which white cow he meant in
that deed.

Principle. The section also deals with latent ambiguity. Where the language of a document is
plain but it turns out that there are more than one person or things to which the description
applies, oral evidence can be given of facts which show which person or thing it was intended to
apply. A willed property in writing that the property be divided "Between my brother B his wife
and their daughter". B had seven daughters. The daughter could be applied equally to all the
daughters though it was meant to apply to only one of the daughters. Evidence was admitted to
show that testatrix was very intimate with C one of the daughters of B with whom she

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corresponded affectionately, while she took no notice of others, that she desired to live with her,
and that it's time she had left property to B and his daughter C. All these facts were allowed to be
proved only to show that it was C of all the daughters who was given the property.

SECTION 97._ Evidence as to application of language to one of two sets of

facts to neither of which the whole correctly applies - When the language used
applies partly to one set of existing facts and, partly to another set of existing facts, but the whole
of it does not apply correctly to either, evidence may be given to show to which of the two it was
meant to apply.

Illustration

A agrees to sell to B "my land to X in the occupation of Y." A has land at X, but not in
occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence may be
given of facts showing which he meant to sell.

X sells his land to Y stating “My land at A in the occupation of B”. X had land at A but it is not
in occupation of B and X has land which is in the occupation of B but it is not at A. Then X can
present evidence before the court that which land he actually wants to sell.

CONCLUSION

Chapter VI of the Indian Evidence Act deals with the provisions related to the exclusion of oral
evidence by documentary evidence. There are certain circumstances when the oral evidence
cannot be admitted before the court for the support of documentary and there are also instances
when the oral evidence is admissible. All the provisions have to be dealt with according to this
chapter. The provisions related to the will under the Indian Succession Act is excluded from
these provisions.

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 BIBLIOGRAPHY

BOOKS AND REPORTS-

 Batuk Lal, The Law of Evidence, Central Law Agency, 22nd Edn.,2018.
 Lal Batul, The Law of Evidence, 22nd Edition (2018), Central Law Agency.
 The Indian Evidence Act (Amendment) Bill 2013 by Law Commission of
India .
 Banville John, The Book of Evidence, Universal law Publications, 2006,
England.

ONLINE SOURCES REFERRED-

http://ncw.nic.in/acts/THEINDIANEVIDENCEACT1872.

https://acadpubl.eu/hub/2018-120-5/1/25.pdf

https://indiankanoon.org/doc/1092711/

https://blog.ipleaders.in/oral-documentary-evidence/

https://www.scconline.com/blog/post/tag/section-91-evidence-act/

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