In this article we shall study Section 91 of IEA, the Indian Evidence Act, 1872 related to the concept of the exclusion of oral by documentary evidence.

Meaning of Evidence:

The term evidence has come from the Latin word “evident” which means “to show clearly” or to prove. Evidence contains everything that is used to reveal the truth or facts. Evidence is the testimony which may be legally received in order to prove or disprove some facts in dispute. Section 3 of the Indian Evidence Act, 1872, defines the term “Evidence” as follows:

 “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 including electronic records produced for the inspection of the Court, such documents are called documentary evidence.

Meaning of Document:

Section 3 of the Indian Evidence Act, 1872, defines the term “Document” as follows:

“Document” 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 attached to the Section clear meaning of the term “Document” effectively as follows:

• A writing is a document;
• 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. 

Meaning of Oral Evidence:

When the proof is restricted to spoken words or by gestures or motion, then it is termed   as   ‘oral   evidence’.   Oral   evidence,   when   reliable,   is adequate without narration or written proof to demonstrate a reality or fact. Section 59 of Evidence Act says that it considers all facts as oral evidence   except   electronic evidence   and   documentary evidence. While, Section   60 says   that   oral evidence must be direct.

Meaning of Documentary Evidence:

Any evidence which is present as a document before the court in order to demonstrate or show a reality is called ‘documentary evidence’. Documentary evidence may be primary or secondary. Primary evidence is considered as the   evidence   which   is   given   in several parts like duplicate copies or as counterpart like those which is   signed   by   the   parties   or photocopy   of   the   document whereas,   Secondary   evidence contains   certified   copies,   that have   been   made   by   the   same mechanical   process   and   also contain   counterparts   of   the document against the parties.

Differentiate between oral evidence and documentary evidence.

ChapterVI of the Indian Evidence Act:

In India, the best evidence rule has been regarded as the fundamental principle upon which the law of evidence depends. The best evidence rule does not demand the greatest amount of evidence which can possibly be given of any fact, but its desire is to prevent the   introduction   of   any   evidence   than   the document   itself.   It   is adopted for the prevention of fraud. It is fair to presume that the party has some sinister motive for not producing the best evidence and that if offered his design would be frustrated.

The best evidence rule is the basis of Chapter VI of Evidence Act. (S. 91 to 100 of the Evidence Act). Chapter VI of Evidence Act deals with exclusion of oral evidence by documentary evidence. Section 91 and Section 92 of IEA define the cases in which documents are exclusive evidence of transactions  which they embody and oral evidence cannot be used to supersede, control, contradict, vary add to subtract from the terms of the document. Section 93 to 100 deal with the interpretation of documents by oral evidence. Documents once reduced into writing are considered to be the best evidence. It is on the higher footing than oral evidence. The very object for which writing is used is to perpetuate the memory of what is written down, and so to furnish permanent proof of it. In order to give effect to this, the document   itself   must   be   produced. Section   61   of   Evidence   Act provides that the contents of documents may be proved by primary evidence or its secondary evidence. Section 62 of Evidence Act makes it clear that primary evidence is the document itself.

In Strother v. Barr, (1828) 5 Bing 136 case, the Court observed that the best evidence rule is based on overriding consideration that written words or litera scripta are preferable to spoken words because:

• Written words can prove themselves whereas spoken words cannot;
• Written words convey the intention of the parties in more tangible and verifiable manner than spoken words; and
• Written words are more enduring than spoken words because of “the imperfection of the human memory”.

Section 91 of the Indian Evidence Act:

Evidence of Terms of Contracts, Grants and Other Dispositions of Property Reduced to   Form of Document:

Section 91 of IEA deals with the exclusion of oral evidence by documentary evidence. This Section lays down the best evidence rule, but it does not prohibit any other evidence where writing is capable of being construed differently and which shows how the parties understood the document. Section 91 of IEA contains two exceptions, three explanations and five illustrations. The general rule laid down in this section is also subject to the exceptions laid down in the Sections 95–99 of the Indian Evidence Act.

Provisions of Section 91 of IEA:

Section 91 of IEA runs as follows –

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.

Exceptions:

• 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.

Explanations:

• 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 document whatever of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.

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 in 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.

(d) A contract, 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.

Intention Behind Section 91 of IEA:

In Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595 case, explaining the rationale of the section observed: “Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as the “best evidence rule”. It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it”.

The Court further observed: “This rule is based upon an assumed intention on the part of the contracting parties, evidenced by the existence of the written contract, to place themselves above the uncertainties of oral evidence and on a disinclination of the Courts to defeat this object. When persons express their agreements in writing, it is for the express purpose of getting rid of any indefiniteness and to put their ideas in such shape that there can be no misunderstanding, which so often occurs when reliance is placed upon oral statements. Written contracts presume deliberation on the part of the contracting parties and it is natural they should be treated with careful consideration by the Courts and with a disinclination to disturb the conditions of matters as embodied in them by the act of the parties”.

In Tulsi v. Chandrika Prasad, AIR 2006 SC 3359 case, the Apex Court held that Section 91 of the Evidence Act mainly forbids proving of the contents of a writing otherwise than by writing itself and merely lays down the ‘best evidence rule’. It, however, does not prohibit the parties to adduce evidence, in a case, the deed is capable of being construed differently to show how they understood the same.

In Jayalakshmi Trading Co. v. Krishnamurthy, AIR 2006 SC 179 (188) case, the Court observed: “It is relevant to note that Section 91 of the Indian Evidence Act prohibits oral evidence only regarding the terms of the contract or other evidence relating to the terms of the contract. Section 91 of the Indian Evidence Act does not prohibit the parties to lead oral evidence in respect of the nature of the contract as well as the oral agreement entered into between the parties simultaneously along with the document. It is well settled that if there is ambiguity in the language employed and the recitals there on, the intention of the parties may be ascertained by adducing extrinsic evidence.”

Explanation of Section 91 of IEA:

Under this Section 91 of IEA,

(1) When the terms of (a) a contract, (b) a grant; or (c) any disposition of property, have been reduced to the form of a document; or

(2) Where any matter is required by law to be reduced to the form of a document, then (a) the document itself, or (b) secondary   evidence of its contents, must be put in evidence.

Thus, the   first   part   of   provision   refers   to   transactions voluntarily reduced to writing.  The second part refers to those cases in which any matter is required by law to be reduced to the form of a document, e.g., under the Transfer of Property Act, a sale of immovable property of the value of Rs.100 and upwards, mortgage for an amount exceeding Rs. 100, a lease of immovable   property   for   a   year   at   least,   a   trust   of   immovable property, a gift of immovable property, etc.

The first part of the Section 91 of IEA does not deal with all kinds of documents but only those which are dispositive in nature, i.e., which are (a) bilateral and (b)  involve transfer of rights from one party to another It refers to three kinds of dispositions, namely, a contract, grant or other disposition of property. Illustration (b) attached to Section 91 exemplify the first part of the Section. It says, if a contract is contained in a bill of exchange, the bill of exchange must be proved.

In Pushpalata v. Padma, AIR 2010 Kant 124 case, the Court held that the word “disposition” means giving away or giving up by a person of something which was his own and it is not term of law.

In Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106 case, the Apex Curt held that a deed of the adoption of child   is   not   a   contract   within   the   meaning   of   Section   91 of IEA  and, therefore, the fact of adoption can be proved by any evidence apart from the deed.

In Bhaskar   Waman   Joshi   v.   Narayan   Rambilas, (1960) 2 SCR 117 case, the Apex Court held  that the question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed, viewed in the light of the surrounding circumstances. If the words   are   plain   and   unambiguous,   they   must,   in   the   light   of   the evidence of surrounding circumstances, be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may be, by law, be permitted to be adduced to show in what manner the language of the deed was related to existing facts.

In State of Madras v. Ramalingam & Co., AIR 1956 Mad 695 (701) case, the Court held that if the parties intended only to reduce to writing a portion of the terms of the contract, then they are entitled to give a parol evidence of the terms which they did not intend to reduce to writing.

Second part of Section 91 of IEA refers to those cases in which any matter is required by law to be reduced to the form of a document. Second part has wider scope. According to this part the documents may or may not be dispositive or bilateral in nature. Those documents which are required by the law to be in writing are:

• Under Sections 54 and 118 of the Transfer of Property Act, 1882, sales and exchanges where the value of property is more than Rs. 100 or more can be made only by registered instrument.
• Under Section 59 of the Transfer of Property Act, 1882, mortgages can be affected only by registered instrument signed by the mortgagor and attested by at least two witnesses.
• Under Section 107 of the Transfer of Property Act, 1882 and Section 17(1)(d) of the Registration act, 1908, lease of immovable property from year to year, or any term exceeding one year, or reserving a yearly rent can be made only by registered instrument.
• Under Section 123 of the Transfer of Property Act, 1882 and Section 17(1)(a) of the Registration act, 1908, gifts of immovable property must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
• Under Section 130 of the Transfer of Property Act, 1882, actionable claims with or without consideration shall be affected only by execution of an instrument in writing signed by the transferor or his duly authorized agent.
• Wills made under Section 64 of the Indian Succession act, 1925 are required to be attested by at least two witnesses.
• According to Order XX of the Code of Civil Procedure, 1908, all judgments and decrees in Civil.
• Judgments in criminal cases under Section 354 of the Code of Criminal Procedure, 1973.
• Under Section 25(1) of the Indian Contract Act, 1872, agreement without consideration made on account of natural love and affection between parties standing in near relation to each other is valid provided it is expressed in writing and registered under the law.
• Confession made by an accused or dying declaration are not required by law in writing if they are made to person other than Magistrate. But Confession made by an accused or dying declaration to Magistrate must be recorded under Section 164  of the Code of Criminal Procedure, 1973.

Exceptions to Section 91 of IEA:

These two exceptions to this provision are as under:

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.

This   exception   is   partly   based   on   the   maxim ‘omnia praesumuntur rite esse acta’. It is a general principle, that a person’s acting in a public capacity is prima facie evidence of his having been duly authorised so to do; and even though the office be one the appointment to which must have been in writing, it is not, at least in the first instance, necessary to produce the document, or account for non­production. 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.

The term “Public Officer” is defined in Section 2(1) of the Code of Civil Procedure, 1908, and it includes all Government Officers, judges, police officers, military officers.

The ingredients of this exceptions are:

• The person must be a public officer;
• He must have been appointed in writing; and
• He must have acted in his official capacity.

Let us understand it with illustration: a question arises whether ‘A’ is a Police Officer   of the Police Station, then the order of appointment is not required to be proved. The fact that he is working as a Police Officer of the Police Station is sufficient.

Exception 1 virtually requires that the Court shall presume that, if the conditions of eceptions are fulfilled, the public official was duly appointed, and shifts the burden of proof on the party who avers that public officer was not duly appointed or that he is impostor.

In Ram Sahai v. Gajja, ILR (1959) 9 Raj 389 case, the Court held that under exception (1) of Section 91 of the Evidence Act it is enough for petitioner to prove that the successful candidate in an election acted as a patel, an office of profit under the Government and therefore was disqualified for standing as a candidate for election. It is not necessary to produce the order of appointment.

Exception 2:

Wills admitted to probate in India may be proved by the probate.

A Will is neither a contract, nor a grant, nor a disposition of property. The death of the testator makes it operative. Hence, this Section does not apply to Wills.

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. According to section 2(f) of the Indian succession Act, 1925, 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.

Attached Explanations of Section of IEA:

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.

For example, a contract may be entered into through a series of letters exchanged between the parties and correspondence put together might constitute a single contract. Illustration (a) exemplifies the meaning of this explanation. It says if a contract is contained in several letters, all the letters in which it is contained must be proved.

Explanation 2:

Where there are more originals than one, one original only need be proved. Illustration (c) exemplifies the meaning of this explanation. It says, if a bill of exchange is drawn in a set of three, one only need be proved.

Explanation 3:

The statement, in any document whatever of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact. Illustrations (d) and (e) exemplify this explanation. Illustration (d) says, A contract, 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. Illustration (e) says, A give B a receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible.

Conclusion:

The best evidence rule does not demand the greatest amount of evidence which can possibly be given of any fact, but its desire is to prevent the   introduction   of   any   evidence   than   the document   itself.   It   is adopted for the prevention of fraud. Documents once reduced into writing are considered to be the best evidence. It is on the higher footing than oral evidence. The very object for which writing is used is to perpetuate the memory of what is written down, and so to furnish permanent proof of it. In order to give effect to this, the document   itself   must   be   produced. The best evidence rule is the basis of Chapter XVII of Evidence Act. (S. 91 to 100 of the Evidence Act).

Section 91 and Section 92 of IEA define the cases in which documents are exclusive evidence of transactions which they embody and oral evidence cannot be used to supersede, control, contradict, vary add to subtract from the terms of the document. Section 91 deals with the exclusion of oral evidence by documentary evidence. This Section lays down the best evidence rule, but it does not prohibit any other evidence where writing is capable of being construed differently and which shows how the parties understood the document. The first   part   of   provision   refers   to   transactions voluntarily reduced to writing.  The second part refers to those cases in which any matter is required by law to be reduced to the form of a document.

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