Department of Law

7th Semester-2020

Course Name: Law of Evidence

Course Code: (Law-4701)

Class Test-02

The Exclusion of oral by documentary evidence

(Section 91-99)

Submitted To
Moniruz Zaman
Lecturer, Department of Law
Faculty of Security and Strategic Studies (FSSS)
Bangladesh University of Professionals (BUP)

Submitted By
Name: Md.Ashrafuzzaman
Program: LL.B (Hons.)
Batch: 2nd (2016-17)
Class ID: 17421073
E-Mail:emonashraful131614@gmail.com

Date of Submission: 12-06-2020

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 Chapter-VI of the Evidence Act, 1872

The Exclusion of oral by documentary evidence

Sections 91-100 deal with the rules of proving the terms meanings and constructions of
documents. The rules as contained in those sections are discussed below:

Section - 91. Evidence of terms of contracts, grants 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 hereinbefore
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 has acted as such officer, the writing by which he is appointed
need not be proved.

Exception 2. Wills admitted to probate in Bangladesh may be proved by the probate.

Explanation to the Section: Section 91 apply 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 (s 91, exp 1). 

For example, if a contract is contained in several letters all the letters in which it is contained
must be proved.

When there are more originals than one, only one of them original only is to be proved before the
court(s 91, exp 2). 

For example, if a bill of exchange is drawn in a set of three, one only of them is to be proved.
 
The statements contained in any document of a fact other than the facts referred to in s
91 Evidence Act, ie, not the fact in issue and is merely used as evidence to prove some facts, will
not preclude the admission of oral evidence as to the same fact (s 91, exp 3).

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For example, Rana contracts, in writing, with Raju, for the delivery of rice upon certain terms.
The contract mentions the fact that Raju had paid Rana the price of other rice contracted for
verbally on another occasion. Oral evidence is offered that no payment was made for the other
rice. The evidence is admissible.

Section 91 deals with the exclusion of oral by documentary evidence. The normal rule is that
the contents of a document must be proved by the primary evidence which is the document
itself in original. Section 91 is based on what is sometime described as the best evidence rule.
The best evidence about the contents of a document is the document itself and it is the
production of the document that is required by section 91 in proof of its contents. In a sense,
the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the
admission of oral evidence for proving the contents of the document except in cases where
secondary is allowed to be led under the relevant provisions of the Evidence Act. The section
forbids the proof of the contents of a writing otherwise than by the writing itself. Even a third
party, who is seeking to prove a written contract, can prove it only by producing the writing. In
this respect section 91 and 92 supplement each other. They are both based on the “best
evidence rule” though they differ in some material particulars also.

There are three explanations of this section. Those are:

Explanation-1: Explanation 1 said that, transaction contained in more documents than one.
That means, if a contract, grant or disposition of property is contained in more documents than
one all documents must be produced to prove the terms of contract, grant or disposition of
property. If a contract be contained in several letters, all the letters in which it’s contained must
be proved, by primary evidence, or by secondary evidence where secondary evidence is
properly admissible. Illustration (a) of this section exemplifies this explanation.

Explanation-2: Explanation 2 said that, only one original need be proved. That means where
there are more originals than one original only need be proved. Instances of the cases dealt
with by this explanation are bills of exchange of which three are usually executed, called, the
first, second and third of exchange and bills of lading which are usually in duplicate and often in
triplicate. Where a document is executed in several parts, is each is primary evidence of the
documents. Illustration (c) of this section exemplifies this explanation.

Explanation-3: Explanation 3 said that, when a written document is not the fact in issue and is
merely used as evidence to prove some facts, independent proof is receivable. Thus, although a
receipt has been given for the payment of money, proof of the fact of payment maybe made by

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any person who witnessed it. Illustrations (d) and (e) of this section exemplify the third
explanation.

There are two exceptions of this section. Those exceptions are:

Exception-1: Appointment of a public servant may be proved by proof of his having acted as
such. It is another prima facie presumption of law that a person has been duly appointed, if he
has in fact acted in an official capacity. For it cannot be supposed that nay man would venture
to intrude himself into a public situation which he was not authorized to fill.

Exception-2: In Bangladesh, wills maybe proved by the probate. Here, Probate means the copy
of a will certified under the seal of a court of competent jurisdiction with a grant of
administration to the estate of the testator.

Illustrations:
i) ‘A’ contract in writing with ‘B’ for the business purpose. The subject matter of that
contract was written in several letters. So that, all the letters in which subject matter
of a contract is contained must be proved.
ii) ‘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.

Section- 92. Exclusion of evidence of oral agreement: 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 terms.

Explanation to the section: Section-92 of the 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 led by oral evidence to the party contract
or legal representative for the purpose of contradicting, varying, addition or subtraction from
the contract. This section 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.

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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. Section-92 is also applicable only to the parties to the
instrument and not to the person who is a stranger to the instrument.

There are 6 provisos in section-92. Those provisos are explained below:

Proviso (1) - 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) - 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.

Proviso (3) - 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 agreements are admissible in this case to show that as such condition has not
been performed, the contract was not enforceable.

Proviso (4) - 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) - 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 parol
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) - 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.

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Illustrations
I) Karim enters into a written contract with Rahim to cultivate some land of
Rahim. Karim was induced to do so because Rahim made a
misrepresentation of his land condition to Karim. This fact may be proved.

II) Samiul sells Nazmul a cow and verbally warrants him sound. Samiul gives
Nazmul a paper in this word: Brought of Samiul a cow for 200 taka. Nazmul
may prove the verbal warranty.

Section - 93. Exclusion of evidence to explain or amend ambiguous document:

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

Explanation to the Section: Section 93 of the Evidence Act deals with the patent ambiguity
and no oral evidence is given to remove the patent ambiguity. According to section 93 when
the language of the document is ambiguous or defective on its face, the evidence which can
show its meaning or supply its effects may not be given.

Illustration:

i) An agreement is made between Arnob and Shibbir that Arnob will sell his
cycle for taka 1000 or 2000. The evidence cannot be given that which price
was to be given.
ii) A contract paper contains blanks. Evidence cannot be given of facts which
would show how they were meant to be filled.

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.

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Explanation to the section: According to section 94, when the language in the document is
simple and plain itself and it applies accurately to the existing facts, the evidence to show that it
was not meant to apply to such facts may not be given. When there is neither a patent
ambiguity nor a latent ambiguity then the evidence cannot be given to contradict this. Section-
94 has also the design to protect third parties from fraud, connivance, carelessness etc. of the
parties to a document.

Illustrations:

i) Mehedi sells to Nazmul, by deed “my estate at Rajshahi containing 50

bighas”. Mehedi has an estate at Rajshahi containing 50 bighas. Evidence
may not be given of the fact that the estate to be sold was one situated at a
different place and of a different size.
ii) Samiul make a contract with Arnob to sell his house which is situated in
Dhaka. Samiul sells his house to Arnob by deed. Any oral evidence may not
be given of the fact that the house to be sold was situated at a different
place.

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.

Explanation to the section: Section 95 of the Evidence Act deals with latent ambiguities
which can be removed by oral evidence. When the language of a document applies in part
correctly and in part incorrectly to an existing fact, extrinsic evidence is admissible to show
whether it was intended to apply to it.

Illustrations:

i) A land is agreed to sell by a written deed. The land is described to be located at a

particular place or in particular city. It turns out that the seller has no land at that
place or in that city, but has another land in a nearby place and that has also been in
the occupation of the buyer. Evidence can be given to show that such land was
meant to be sold.

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 ii) Arnob sells to Samiul, by deed "my house in Gazipur. A had no house in Gazipur, but
it appears that Arnob had a house at Mymensingh, 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 Mymensingh.

Section: 96. Evidence as to application of language 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 which of those persons or things
it was intended to apply to.

 Explanation to the section:  The rule as contained in section 96 deals when the same name
or description fits two persons or things accurately; or fits one of them exactly and another
loosely then the evidence may be given under section 96 of the Evidence Act to clarify that
which of those persons or things, that fact is intended to apply on . It has been seen that section
94 lays down the rule that extrinsic evidence is inadmissible when the language of a document
is perfectly clear and correctly applies to some subject-matters (persons or things). In fact,
section 96 is modifies the rule laid down in section 94 by providing that where the language of a
document correctly describes two sets of circumstances but could not have been intended to
apply to both, evidence may be given to show to which set it was intended to apply. Here the
language is certain and the doubt as to which of similar persons or things the language applies
may be introduced by extrinsic evidence.

 Illustrations:

(a) X agrees to sell to Y, for Taka 5,000, "my blue jacket". X has two blue jackets. Evidence may
be given of facts which show which of them was meant.
 
(b) Moontaha agrees to accompany Sanjana to Kathalbagan. Evidence may be given of facts
showing whether in Kathalbagan in Khulna or Kathalbagan in Dhaka was meant.

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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.

Explanation to the section: The rule under section 97 deals with latent ambiguity and it is
an extension and application of the rule contained in section 95. This section presupposes an
inaccuracy such as there is in the case for which section 95 provides, but there is the further
difficulty that the language is partially applicable to two sets of facts and therefore it has to be
decided which was meant.

 The rule as contained in section 97 differs from section 95, inasmuch as under section 95 there is
only one person or thing to which the language of the document is partially applicable, no other
person or thing being in competition; but in the case contemplated by section 97 there are two
or more persons or things in competition, part of the description applying to one and part to the
other, while not wholly applicable to either.
 
Illustration
 
i) A agrees to sell to B "my painting at Dreek studio in the occupation of Y”. A has painting
at Dreek Studio, but not in the occupation of Y and A has painting in the occupation of
Y, but it is not at the said studio (Dreek Studio). Evidence may be given of facts showing
which he meant to sell.

ii) 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.

Section - 98. Evidence as to meaning of illegible characters, etc. : Evidence may be

given to show the meaning of illegible or not commonly intelligible characters, of foreign,
obsolete, technical, local and provincial expressions, of abbreviations and of words used in a
peculiar sense.

Explanation to the Section: To show the meaning of illegible characters or characters

which are not commonly intelligible character such as characters of foreign, obsolete, technical,
local or provincial expressions of words or abbreviations which is used in a peculiar sense,
evidence can be presented before the court under section 98 of the Evidence Act.

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Illustration

i) A sells his painting to B stating “all my mods”. Here, what A meant by the term
“mods” can be clarified by the way of admission of evidence.

ii) Reena, a sculptor, agrees to sell to Rahim, "all my mods". Karim has both models and
modeling tools. Evidence may be given to show which he meant to sell.

Section - 99. Who may give evidence of agreement varying terms of document:
Persons, who are not parties to a document, or their representatives in interest, may give
evidence of any facts tending to show a contemporaneous agreement varying the terms of the
document.

Explanation to the section: Under section 99 of the Evidence Act, those persons also can
give evidence who are not parties to a document or representative-in-interest regarding any
fact which shows a contemporaneous agreement varying the terms of the document.
As section 92 of the Act excludes the party to the contract from producing the document but it
does not exclude those who are the parties to contract. So, under this section 99 the same
provision is being repeated.

 
Illustrations
i) Runa and Meena make a contract in writing that Runa shall sell Meena certain
medicine, to be paid for on delivery. At the same time, they make an oral agreement
that three months' credit shall be given to Meena. This could not be shown as between
Runa and Meena, but it might be shown by Rahima, if it affected her interests.

ii) X and Y make a contract in writing that Y shall sell X some dresses, to be paid for on
delivery. At the same time they make an oral agreement that three months' credit shall
be given to X. This could not be shown as between X and Y, but it might be shown by Z.
if it affected his interests.

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