You are on page 1of 9

An

Assignment
On
Exclusion of Oral by Documentary Evidence:
an Appraisal

Submitted to:
Md. Deedarul Islam Bhuiyan
Assistant Professor & Head
Department of Law
Sonargoan University (SU)

Submitted by:
Khaleda Edib
ID No: LLB-1903018007
Semester: Spring-2022
Section: LAW0122-Gold
Course Title:Law of Evidence-II
Course Code: LLB-802
Date of Submission: 03-02-2022
Chapter VI of the Evidence Act, 1872 deals with the provisions of exclusion of oral evidence by documentary
evidence.  This whole topic is covered under section 91 to section 100 of the Act. 

Oral and Documentary Evidence

Oral Evidence

The evidence which is confined to the words spoken by mouth is the oral evidence. If oral evidence is worthy
of credit, it is sufficient to prove a fact or a title without any documentary evidence. The provisions related to
oral evidence are given under Chapter IV of the Evidence Act, 1872. Oral evidence of a witness can be
considered doubtful if it is in contradiction with the previous statement.

Documentary Evidence

The provisions related to the documentary evidence are provided under Chapter-V of the Evidence Act,
1872. Section 3 of the Act defines the term “document”. Any matter which is expressed or described on any
substance by means of letters, figures or remarks or by more than one means and which can be used for
recording the matter is considered as a “document”.

Generally, the most common document which we have to deal with is described by letters. The documents are
written in any language of communication such as Hindi, English, Urdu etc.

The documents produced before the court as evidence are the documentary evidence and there must primary or
secondary evidence to prove the contents of the documents. Primary evidence has been defined under section
62 of the Evidence Act and it means the original document when itself produced before the court for the
inspection.

The secondary evidence has been defined under section 63 of the Act. The secondary evidence is the certified
copy of the evidence or copy of original documents. Secondary evidence also includes the oral accounts given
by a person about the contents of the document who has himself seen it.
Difference between Oral Evidence and Documentary Evidence
 

S.No. Oral Evidence Documentary Evidence

When a document is produced before the court


Oral evidence means the statements which are
1. then such document is considered as
given by a witness before the court.
documentary evidence.

It is a statement submitted through the


2. It is the statement of a witness in oral form.
documents.

In the oral evidence are stated through voice, The documents are composed of words, signs,
3. speech or symbols for its recording before the letters, figures and remarks and submitted
court. before the court.

The provisions related to the documentary


The oral evidence is discussed under section
4. evidence has been discussed under section
59 and section 60 of the Evidence Act.
61 to section 66 of the Evidence Act.

The oral evidence is required to be direct and it The contents of the documentary evidence need
5. becomes doubtful if the statement contradicts to be supported by primary or secondary
with the previous statement. evidence.

Exclusion of oral evidence by documentary evidence

Evidence reduced in the form of document 

Section 91 of the Evidence Act, 1872  lays down the provision that when evidence related to contracts, grants
and other depositions of the property is reduced as a document, then no evidence is required to be given for
proof of those matters except the document itself. In the cases where the secondary evidence is admissible then
such secondary evidence is admissible.

There are certain kinds of contracts, grants and other depositions which can be created orally and they do not
require any document.
Illustration

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

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

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., judgement 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.

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.

According to the rule laid down under section 91 of the 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. Jhunjhunwala, 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.
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 judgements, 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 a 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. 

This exception requires to prove 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.

Evidence of oral agreement excluded


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 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.

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.

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.
Section 93: Exclusion of evidence while explaining or amendment of an
ambiguous document

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

An agreement is made between A and B that A will sell his crops for Rs. 1000 or 2000. The evidence cannot
be given that which price was to be given.

In the case of Keshav Lal v. Lal Bhai T. Mills Ltd., 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: In the application of document to existing facts, the application


against it to be excluded
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.

In the case of General Court Marshal v. Col. Anil Tej Singh Dhaliwal 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 allowed to be given when the document is plain in itself
Section 95 of the Evidence Act deals with latent ambiguity and oral evidence can be given for removing latent
ambiguity. When the language which has been used in the document is simple and plain but it is not in the
meaning to existing facts due to the mistakes in the descriptive evidence and such mistake can be shown that it
was used in a peculiar sense.
Illustration

A sold his house to B stating in the deed as “my house in Lucknow”.

But, A has no house in Lucknow but he has a house in Kanpur in which B is living since the deed was
executed. Then the evidence can be used to prove the fact the deed was related to the house in Kanpur.

Section 96: Evidence allowed when the application of the language which is
meant to apply on only one, applies to several persons
When the language of the facts is such that, which is meant to apply on only one person applies on several
persons, 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.

Illustration

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.

Section 97: When on the application of the language of two or more facts
neither of them applies correctly, then evidence to be admitted
According to section 97 of the Evidence Act, when the language used in a fact applies to one set existing fact
partly and partly to another set of existing fact, but if applied as a whole, it does not apply to either correctly
then the evidence can be presented before the court to clarify that which of the facts was actually intended.

Illustration

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 given to show the meaning of illegible characters


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.

Illustration

A sells his artwork to B stating “all my mods”. Here, what A meant by the term “mods” can be clarified by the
way of admission of evidence.
Who may give evidence of agreement varying terms of the document?
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 i.e., section 99 the same provision is being
repeated.

Provisions of Succession Acts related to wills to be excluded


According to section 100 of the Evidence Act, the provisions laid down under Chapter VI of the Evidence Act
are to be taken into effect on any of the provisions regarding the construction of will under the Succession
Act,1865.

Conclusion
Chapter VI of the 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
Succession Act is excluded from these provisions.

You might also like