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S 91 and 92 (Written Proof)
When both oral and documentary evidence are presented, the court has the discretion to rely on the evidence it deems more credible. The law does not mandate that documentary evidence must always take precedence over oral testimony.
The rules regarding the preference of documentary evidence over oral testimony are rooted in the principle of 'best evidence'. If a fact is contained within a document, that document (whether primary or secondary evidence) is considered the most reliable evidence of that fact.
This legal maxim dictates that written content must be substantiated by written proof. Sections 91 and 92 of the Evidence Act enshrine this principle.
Best Evidence Rule
The core aim of the evidentiary law is to confine court investigations within the boundaries of general convenience. Thus, evidence must strictly relate to the matter at hand, hearsay should be barred, and the most authentic evidence should always be presented.
The "best evidence" rule stipulates that the highest quality evidence applicable to a case must be provided. It doesn't demand an abundance of evidence but aims to prevent the introduction of inferior evidence when superior evidence is presumed to exist, held by the party, yet withheld.
Fundamentally, the law of evidence mandates that the party possesses and presents the best evidence available. For instance, if a fact is to be proven through oral testimony, it must come from a direct observer, enabling thorough cross-examination for truth verification.
Hearsay, therefore, is generally inadmissible, except in rare circumstances.
Likewise, when a transaction hinges on a written record, the document itself must be produced or its absence justified. Only when primary evidence (the original document) is unavailable will secondary evidence (a copy) be considered.
However, the party offering secondary evidence must demonstrate the unavailability of the primary evidence.
Moreover, it's firmly established that written documents carry more weight than oral testimony. This leads to the rule excluding oral evidence when written instruments are involved, either as a substitute for or to contradict them.
Nonetheless, in exceptional cases, oral evidence may be allowed alongside documentary evidence.
Section 91 of Indian Evidence Act
According to Section 91, if a contract, grant, or any property disposition is documented or mandated by law to be documented, the terms of such document can only be proven through the document itself, whether it's primary or secondary evidence.
This provision primarily prohibits the proof of written content through means other than writing itself, aligning with the "best evidence" rule.
Essentially, it embodies a substantive legal doctrine stating that in the case of a written contract, all prior oral agreements or expressions are superseded by the written document. This rule applies to both voluntary written agreements and those mandated by law, excluding oral contracts.
Thus, the written document stands as the sole evidence, excluding any oral testimony.
Transactions necessitating written documentation include public and judicial records like judgments, witness testimonies, and deeds such as sale or mortgage documents exceeding Rs. 100, or partition deeds.
In cases where registration under the Registration Act is mandatory, an unregistered document becomes inadmissible as evidence, and no other evidence regarding its content can be entertained.
Exceptions to Section 91
Exception 1 of Section 91 states that when the law requires the appointment of a public officer to be in writing, and the question arises whether such an appointment occurred, demonstrating that a specific individual has acted as the officer suffices as proof.
In cases such as determining if someone is a High Court Judge, it's unnecessary to present the appointment warrant; rather, showing that the individual functions in the capacity of a High Court Judge serves as adequate proof.
Similarly, if someone presents themselves as a civil surgeon in court, their testimony to that effect is deemed sufficient proof without requiring documentation.
Exception 2 of Section 91 pertains to wills admitted to probate in India. In such cases, the probate itself can serve as proof, and there's no obligation to produce the document containing the will.
The term 'probate' refers to a certified copy of a will under the seal of the competent court, along with a grant of administration to the estate of the deceased.
Explanations to Section 91
Explanation 1 of Section 91 clarifies that the section applies uniformly whether the contracts or related documents are contained in a single document or multiple documents. If a contract spans several letters, all the letters forming part of the contract must be proven.
Explanation 2 of Section 91 states that when there are multiple original copies of a document, it suffices to prove only one original.
Explanation 3 of Section 91 specifies that if a document not only outlines the terms of the contract but also refers to additional facts, oral evidence is permissible regarding those extra facts.
For instance, if a contract for the sale of goods mentions previous payments for supplied goods, which isn't a contractual term but an external fact, oral evidence can be presented to demonstrate that such payments were never made.
For example, if A issues a receipt to B for payment, oral evidence can be admitted to prove the payment.
Cases on Section 91
In Emperor v. Nawab Ali Sarkar, (1923) 51 Cal 236, it was determined that failure to read over a deposition to a witness as per Order XVIII, Rule 5 of the Code of Civil Procedure renders it inadmissible as evidence against them in a subsequent trial for forgery. Additionally, oral evidence regarding its contents is precluded by this section.
Similarly, in Krishna Prasad v. SN Prasad, AIR 2006 Sikkim 25, a deed of exchange involving property valued at over Rs 100 was deemed inadmissible due to lack of registration. No oral evidence was permitted to substantiate its contents.
Section 92 of Indian Evidence Act
Section 92 complements Section 91 by stipulating that once a contract, grant, or disposition has been established through writing, oral evidence cannot be admitted to contradict or modify its terms. Put simply, oral evidence cannot be used to qualify the terms outlined in the document.
Section 92 specifically restricts parties to the document and their representatives from offering oral evidence regarding its contents.
However, other individuals (or strangers) are not bound by this restriction and may provide such evidence. Moreover, oral agreements that do not conflict with, alter, supplement, or negate the terms of the document are admissible.
It's essential to recognize that Section 91 sets forth a general principle applicable to all parties involved, not solely the signatories of the document. Section 92 comes into play after the document has been presented to establish its terms under Section 91.
These sections are interdependent, with Section 91 governing both unilateral and bilateral documents, while Section 92 applies exclusively to bilateral agreements (excluding third parties).
Exceptions to Section 92
Validity of document (Proviso 1, Sec. 92): Evidence can be admitted to establish any fact that would render the document invalid or entitle a party to a decree or order concerning the document. This includes grounds such as fraud, intimidation, illegality, failure of consideration, or mistake in fact or law.
Matters on which document is silent (Proviso 2, Sec. 92): Oral evidence is permissible regarding matters not addressed in the document, provided it does not conflict with the document's terms.
This oral agreement should pertain to a distinct collateral matter, even if it forms part of the transaction. The formality of the document is crucial in determining the court's willingness to admit oral evidence.
Condition precedent (Proviso 3, Sec. 92): Oral evidence can establish a separate agreement constituting a condition precedent to the enforcement of obligations under the document.
This means that if a written contract's terms are contingent on a certain event, oral evidence can demonstrate that the event did not occur, thus nullifying the written agreement.
Rescission or modification (Proviso 4, Sec. 92): If parties agree orally to cancel or modify a document after its execution, such oral agreement may be proved. However, this does not apply if the contract must be in writing by law or if it has been lawfully registered.
Usages or customs (Proviso 5, Sec. 92): Oral evidence is admissible to explain or supplement terms in commercial transactions based on established usages and customs, as long as they do not contradict the written contract.
Relation of language to facts (Proviso 6, Sec. 92): Evidence may be admitted to clarify how the language of a document corresponds to existing facts, especially in cases of latent ambiguity.
Surrounding circumstances and parties' conduct can be considered to discern their true intentions when there is a conflict between the document's language and the actual facts.
Cases on Section 92
In Dattoo v. Ramchandra, (1905) 7 Bom LR 669, the plaintiff sought to regain possession of land, arguing that although the document held by the defendants appeared to be an absolute conveyance, it was actually intended to function as a mortgage.
The plaintiff's claim was based on several grounds, including that the consideration was an existing debt rather than money paid at the time, the plaintiff's father remained in possession until his death, and thereafter, his widow continued possession for three years.
Additionally, there was no transfer of the land into the transferee's name, and the consideration was deemed grossly inadequate.
However, the court ruled that the transaction constituted a straightforward sale, and evidence regarding the circumstances mentioned could not be admitted to prove it was a mortgage.
In Sitaram Lal v. Jameswar Das, AIR 1995 Ori 260, concerning an agreement to sell agricultural land, the defendant argued that they intended for a usufructuary mortgage to secure advances made by the plaintiff.
The plaintiff's admission regarding giving up possession if the advanced money was returned was used to invalidate the agreement to sell.
In Abaji v. Laxman, (1906) 30 Bom 426, agriculturist plaintiffs sought redemption, while the defendant contended that the transaction was an outright sale, not a mortgage. The lower court determined it to be a mortgage and allowed redemption.
However, the court held that evidence of intention could not be introduced solely to interpret a document purportedly indicating an outright sale rather than a mortgage.
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