Roll No.

09BAL069

A Comparitive Study of Oral and Documentary Evidence

PROJECT FOR THE SUBJECT

Evidence Law

SUBMITTED BY
Mr. Archit Bohra Semester V B.A.LL.B. (Hons)

UNDER THE GUIDANCE OF

Mr. Rhishikesh Dave
Asst. Prof., ILNU

Submitted to

INSTITUTE OF LAW NIRMA UNIVERSITY, AHMEDABAD

ACADEMIC YEAR (2010-11) 1

Contents

D E C L A R A T I O N .................................................................................................................. 3 C E R T I F I C A T E .................................................................................................................................... 4 CHAPTER I .................................................................................................................................... 5 INTRODUCTION AND REASERCH METHEDOLOGY ........................................................... 5 Synopsis: ....................................................................................................................................................... 5 RESEARCH METHODOLOGY ................................................................................................................. 7 Aims and objectives: ............................................................................................................... 7 Scope and limitations: ............................................................................................................. 7 Hypothesis: ............................................................................................................................. 8 Research questions: ................................................................................................................. 9 Mode of Writing ..................................................................................................................... 9 Mode of Citation ..................................................................................................................... 9 Chapter II ...................................................................................................................................... 10 NATURE AND FUNCTION OF THE LAW OF EVIDENCE............................................................ 10 CHAPTER III ................................................................................................................................. 12 MODES OF PROOF ....................................................................................................................... 12 Oral evidence ............................................................................................................................................ 12 Documentary evidence ......................................................................................................................... 15 Chapter IV ..................................................................................................................................... 18 OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE ............................................ 18 CONCLUSION ............................................................................................................................. 24 BIBLIOGRAPHY ..........................................................................Error! Bookmark not defined.

DECLARATION
I Archit Bohra declare the work entitled A Comparative Study of Oral and Documentary Evidence being submitted to Nirma University for the project in the subject of Evidence Law is original and where the text is taken from the authenticated books, articles or web articles, appropriate reference is given. It is true in my best of knowledge.

Date : 4th September 2011

Archit Bohra Roll No 09 BAL 069 V Semester Institute of Law Nirma University

CERTIFICATE

This is to certify that the project entitled A Comparative Study of Oral and Documentary Evidence submitted by Mr. Archit Bohra for the project work in the subject of Evidence Law embodies independent and original research work carried out by him under my supervision and guidance. To the best of my knowledge and belief, it is his original work submitted to fulfill the project assignment for the Semester End Examination of fifth semester of B.A.LL.B. Programme during the academic year 2010-11.

Date: 4th September 2011

Mr. Rhishikesh Dave Asst. Professor in Law Institute of Law, Nirma University Ahmedabad

CHAPTER I INTRODUCTION AND REASERCH METHEDOLOGY

Synopsis:
The term Law is used in different senses. Without going into the details of jurisprudential definition of law, in the plain sense it means any rule, regulation or a canon, a dogma or a norm to which the human actions are required to conform. The term Law is used in several other subjects also. Law as used in the physical and natural sciences is understood in the sense of observed uniformity in nature, for example, law of gravitation, the law of reflection etc. the regularity is rising and setting of sun, rising of high tidal waves, are the attributes of the law of nature. But in jurisprudence we do not use the expression law in any of these senses, but as signifying a command from a superior authority, prescribing a course of action, disobedience to which would entail punishment. Holland defines law as a general rule of external human action enforced by a sovereign political authority. The object of law is the creation of legal rights. Holland defines a legal right as the capacity residing in one person of controlling with the assent and assistance of the state the action of others. The entire corpus juris (body of laws) is broadly classified into two categories, namely, (1) substantive laws, and (2) adjective laws. Substantive laws are those, which define the rights, duties and liabilities, the ascertainment of which is the purpose of every judicial enquiry. Adjective laws are those, which define the pleading and procedure by which substantive laws are applied in practice. It is the machinery by which the substantive laws are set and kept in motion, substantive criminal law is contained in the Indian Penal Code (1860) as also in various special and local laws dealing with that subject. Substantive civil laws are contained in several acts like the Indian Contract (1872), the Transfer of Property Act (1882) the Hindu and Muslim personal laws. The substantive civil law has not been fully codified so far. For example, A prosecutes B for assault. A has the right to prosecute B and get him punished, and B is liable for assault. These matters relating to As right and Bs liability are provided for in the Indian Penal Code. But the court cannot determine As right and Bs liability unless it is proved that B has assaulted A. the matters such as whether A was assaulted by B and if so, who should offer evidence and in what manner evidence is to be offered, is provided in the Indian Evidence Act, which is the adjective law. Hence, the Indian Evidence Act steps in here to enable the court to determine As right and Bs liability. Similarly, A enters into a contract with B, promising to sell his house and B promises to pay him Rs. 1 lakh. In the event of a breach of contract being committed by either of the parties the aggrieved party necessarily 5

comes to a court of law to seek the redressal of his right. The rights and liabilities and the remedies for breach of contract are provided in the Indian Contract Act, which is substantive law. But the court cannot decide the rights and liabilities of the parties unless the matters such as the existence of a contract between the parties are proved. What evidence has to be given and in what manner it should be given in proof of the existence of the contract are provided for in the Indian Evidence Act. Again the Evidence Act, which is the adjective law, steps in for the enforcement of the above substantive law. The rules regarding evidence in the administration of justice are of high importance. No substantive law can be enforced without the help of rules of law of evidence. The law of evidence can be stated to be the foundation on which the entire structure of judiciary is based. If the foundation is weak the structure is bound to collapse. Similarly, if the rules of law of evidence are not sound the administration of justice is bound to go astray. The evidence which is given must be through prescribed ways as per the Act. This comparative study is about those two of the kinds, Oral Evidence and Documentary Evidence. Both play very important role and have equal importance as in a case of a murder an eyewitness can give a oral evidence by what he has seen on the place where the incident occurred. And the same is with documentary evidence, but as what has been seen through the deep study is that documentary evidence play and more important role than oral evidence. As at many places and in most we need documents to prove and to be something in written. Oral evidence plays a part in some of the conflicts but Documentary are valid and applicable and used in every kind of laws. For e.g. in case of breach of contract, you need to have the deed as evidence and that is a document. So this shows the importance of documentary evidence.

RESEARCH METHODOLOGY

Aims and objectives:

The aim of this project is to look at the meaning of oral evidence & documentary evidence and compare them under Indian Evidence Act 1872 and thereby analyzing their usage and advancements.

To understand the term oral evidence and documentary evidence as given under Indian Evidence Act 1872. To analyze the legislative definitions of oral and documentary evidence. To see the process of usage of both types of evidences. To see the status of which evidence is more implicit. To differentiate the usage of the evidences. The applicability of the oral and documentary evidence.

Scope and limitations:

The project limits itself to studying of several important cases and judgments delivered under the Indian Evidence Act, 1872 and the difference between the oral and documentary evidence. The researchers study was even limited by his understanding as there could be some basic observations which he might have failed to put forward in the project due to limited understanding of the subject.

Hypothesis:
The historical background as per the facts and establishments shows the genesis of law of evidence was different periods namely, (a) the Ancient Hindu Period, (b) the Ancient Muslim Periods, (c) and the British Period. (a) Law of Evidence in Ancient Hindu Period1 The sources of information relating to the law of evidence prevailing in Hindu India emanate from the Hindu Dharma Shastras. The historical background of the law of evidence and its later development has been elaborately discussed in radha kumud mukherjees endowment lectures on Hindu Judicial System, delivered by Sir S. Vardhachariar. In Hindu Law there were three kinds of evidence. They are: (1) Lekhya (Documents) (2) Sakshi (Witnesses); (3) Bukhthi (Possession). (b) Law of Evidence in Ancient Muslim Period The Mohammedan Law givers deal with evidence under the heads of oral and documentary. Oral evidence is further sub classified into direct and hearsay evidence as in the present day, although documents properly executed and books kept in the course of business were accepted as evidence, oral evidence appears to have been preferred to documentary evidence. When documents are produced the courts insisted upon examining the party, which produced them. In regard to oral evidence the Holy Quran enjoins truthfulness. Its translated version is: O True Believers: Observe Justice, when you appear as witness before God and let not hatred towards any induce you to do wrong, but act justly. This will approach nearer to piety. And fear God for God is fully acquainted with what you do. (c) Law of Evidence In British India In British India the Presidency Courts by virtue of Royal Charter established in Bombay, Madras and Calcutta were following English rules of the Law of Evidence. In Mofussil Courts, outside the Presidency Towns, there were no definite rules relating of Law of Evidence. The courts enjoyed unfettered liberty in the matter of admission of Law of Evidence. The entire administration of justice in the Mofussil Courts in the absence of any definite rules of Law of Evidence was in total chaos. There was a dire necessity for the codification of the rules of law of evidence. In the 1835 the first attempt was made to codify the rules of evidence by passing the Act of 1835. Between 1835 and 1853 about eleven enactments were passed
1

Law of Evidence by Dr. Krishnam Achari, 7 Ed., 2009.

th

dealing with the law of evidence. But all these enactments were found inadequate. In the year 1868 a commission was set up under the chairmanship of Sir Henry Mayne. He submitted the draft but it was entrusted to Sir James Fitz James Stephen. Stephen submitted his draft and it was referred to the select committee and also to the High Courts and Members of the Bar to elicit the opinion, and, after gathering the opinion, the draft was placed before the legislature and it was enacted2. The Evidence Act came into force on 1st September, 1872. Prior to Independence there were many as 600 Princely States in India. Which were not within the jurisdiction of the British system of justice. Each of these states had its own rules of law of evidence but by and large they followed the Indian Evidence Act 1872. After independence there was merger of Princely States into the Indian Union. Both the substantive laws as well as the procedural laws have since been made uniformly applicable to all the states, whether British province or the native states. So much so, the Law of Evidence is now applicable to all the states constituting the Union of India.

Research questions:

1. What is oral evidence and documentary evidence? 2. What are the provisions under the act by which they are recognized? 3. What is the scope of both the types of evidences? 4. Which of the evidence has more prevalence?

Mode of Writing
A descriptive and analytical method of writing has been followed.

Mode of Citation

A uniform mode of Citation has been followed.

Role of Evidence.

Chapter II
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. 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.

10

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 any thing 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.

11

CHAPTER III MODES OF PROOF

Oral evidence
Oral Evidence Section 593:- 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 can not 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.

Indian Evidence Act, 1872.

12

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 direct4

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.

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 can not be had as is generally the case in the proof of fact by oral testimony.

Indian Evidence Act, 1872.

13

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 humerous and the most important. Any body 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.

CASE:ASHOK KUMAR ROUT & ETC V/S STATE OF BIHAR5

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.

AIR 2000 MP 1920

14

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.

Documentary evidence
MEANING: the expression documentary evidence as it is defined in section 36, means: [All documents including records produced for the inspection of the Court] such documents are called documentary evidence. The expression document is defined in section 3 as follows: Document- means any matter expressed or described upon any substance by means of letter, figures or makes, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. S.3 defines the term evidence as meaning and including oral and documentary evidence. All evidence comes to the tribunal either as the statement of a witness or as the statement of a document, i.e., oral or documentary evidence. The present chapter deals with the documentary evidence, i.e., the mode of proof of contents of documents old documents either by primary or secondary evidence, the types of documents, viz., public and private documents of the presumptions as to the documents. Father we are going to deal with the 3 main aspects : a) How documents are to be proved the manner of, b) What are the presumptions about the various kinds of documents, and c) When is oral evidence excluded by documentary evidence?

It has been said that the word document as used in the law of evidence should not be construed restrictively. Etymologically the word means something which shows or teaches and is evidential or informative in its character. Where the statement of parties containing the terms of a compromise were recorded by a court and duly signed, it was to be held to be a document with regard to recorded tape, it was said that there is no reason in principle why the recording in recording in some permanent or semipermanent manner of human voice (or other sounds) which are relevant to the issue to the determined, provided that it furnishes information, cannot be a document. In reception to the reception into
6

Indian Evidence Act, 1872.

15

evidence of models, maps, diagrams and photos, it is to observe in WIGMORE that for evidentiary purposes they are nothing except so far as they have a human beings credit to support them. Then they become media of communication as a superior substitute for words.

R.M.Malkani v. State of Maharashtra7 The accused, which an appealed to the Supreme Court against his conviction, was the coroner of Bombay. A doctor, who was running a nursing home, operated upon a patient who afterwards died. It, being a post-operation death, becomes the subject of post-mortem and inquest. The coroner persuaded the doctor to pay him a sum of money if he wanted the report to be favorable to him. The payment was arranged to be made through another doctor and the final meeting for this purpose was to be settled by telephone call from the house of another the doctor. The police commissioner was called with the taperecording mechanism. This was connected to the doctors telephone and thus the most incriminating conversation was recorded in the presence of the police officer. The Bombay High Court held that the testimony of the two doctors required corroboration and that the tape amply corroborated it. The decision was upheld by the Supreme Court.

N.Sri Rama Reddy v. V.V. Giri & Pratap Singh v. State of Punjab8 The court accepted conversation of dialogue recorded on tape-recording machine as admissible evidence. S.61 Proof of contents of documents: The contents of document may be proved either by primary or secondary evidence. Law of best evidence requires the best evidence must be given in proof of the facts in issue or the other relevant facts. Primary evidence is the best evidence. The best evidence rule is to produce the original and secondary evidence is not admissible unless the original is proved to be lost, etc, as required under section 65. Contents may be proved, i.e., in other words, there are no degrees of secondary evidence. In India the rule is the same as in England. The section means that there no other method allowed by law for providing the contents of a document except by the primary or the secondary evidence. Where admissions were made in a written statement by the plaintiffs predecessors-in-interest which was filed in several judicial proceedings regarding the rights in the suit property, a certified copy of the written
7 8

AIR 1989 SC 299 2001 (4) Crimes 83 (AP)

16

statement was held to be admissible in proof of the settled rights to the property. Where the document carried adhesive stamps which belonged to a period prior to six months from the date of purchase, the court said that such document could not be attached in evidence. It would have been admissible if it was not creative of any rights in favor of any party and merely recorded something. An unregistered family settlement deed was held to admissible strictly for collateral purposes only.

The subject of documentary evidence can be divided into three parts: 1. How the contents of a document are to be proved? {61-66} 2. How the document is to be proved to be genuine? {67-90} 3. How far and in what cases the oral evidence is executed by documentary evidence? {91-109}

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Chapter IV
OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
S.919 deals with the Evidence of terms of contracts, grant and other dispositions of property reduced to form of document which reads as: 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 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. Where the fact to be proved is embodied in a document, the document is the best evidence of the fact. Such fact should, therefore, be proved by the document itself, that is, by the primary or secondary

Indian Evidence Act, 1872.

18

evidence of the document. According to the High court of Delhi, it did not permit oral evidence of the contents of a partition deed which deed was inadmissible being not registered10. Once it is shown that the original document is not admissible in evidence because of insufficiency of stamps, secondary evidence by way of oral statement or Xerox copy cannot be allowed. Allowing the party to confront the witnesses with Xerox copy of such evidence was held to be not permissible. The section forbids the proof of the contents of a writing otherwise than by the writing itself. The section embodies the best evidence rule, thus declaring a doctrine of substantive law. Even a third party, who is seeking to prove a written contract, can prove it only by producing the writing. In this respect S.91 and 92 supplement each other. They are both based on the best evidence rule though they differ in some material particulars also. The Supreme Court held in Taburi Sahai v. Jhunjhunwala11, that a deed of the adoption of child is not a contract within the meaning of section 91 and, therefore, the fact of adoption can be proved by any evidence apart from the deed. So is true of a will. Further the principle of exclusion of all other evidence applies only to the terms happens to be mentioned in a contract, the same can be proved by any other evidence than by producing the document. Where both oral as well as documentary evidence are admissible on their own merits and have been admitted, the court may go by the evidence which seems to be more reliable. There is nothing in the act requiring that the documentary evidence should prevail over the oral evidence.

S.9212 deals with the Exclusion of evidence or oral agreement and reads as-: 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 term: Proviso (1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want for due

10 11

AIR 1985 SC 289 AIR 2006 SC 1800 12 Indian Evidence Act, 1872.

19

execution, want of capacity in any contracting party, want or failure of consideration, or a mistake in fact or law. Proviso (2) The existence of any separate oral agreements to matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether; r not his proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3) The existence of any separate oral agreement, constituting, a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4) The existence of any separate oral agreement, constituting, a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property, is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5) Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved. Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6) Any fact may be proved which shows in what manner the language of a document is related to existing facts. The principle laid down that when the terms of any such document have been proved by the primary or secondary evidence of the document, no evidence of any oral agreement or statement shall be admitted, as between the parties to the document or their representatives, for the purposes of contradicting, varying, adding to, or subtracting from the terms of the document. In other words, no oral evidence can be given to qualify the terms of the document and their representatives-in-interest from giving oral evidence concerning the contents of the document. Other parties left free to give such evidence. The amount which appeared due on a promissory note was not allowed to be contradicted by showing that the promise had only agreed it need not be paid. The court followed Bai Hira Devi v. Official Assignee13 where it was held that in the case of a conveyance, it would not be open to either of the parties to the document to prove that, if the consideration was mentioned as rs. 10,000, in fact the

13

AIR 1933 Cal. 559

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consideration was less or more. It was pointed out by the Madras High Court in its decision in K.S. Narasimhachari v. Indo Comml. Bank14 that the consideration is a term of the contract that while the parties can give evidence under proviso (1) Of the section to show that the document was invalid because there was no consideration or there was failure of consideration or difference in the kind of consideration than that mentioned in the document, it will not be competent for him to prove a variation of the consideration recited in the document.

EXCEPTIONS 1) Validity of document {proviso-1} the first proviso to S.92 says that evidence can be given of any fact which would invalidate the document in question or which would entitle a party to any decree or order relating to the document. The validity of a document may be questioned, for example, on ground that it was obtained by fraud, intimidation or illegality, or that the document was not duly executed, or that one of the parties was incompetent to contract, or that there was a mistake of fact or of law or that there was no consideration or consideration had failed. 2) Matters on which document is silent {proviso-2} evidence can be given of an oral agreement on a matter on which the document is silent. Such evidence is allowed subject to two conditions; firstly, the oral agreement should not be inconsistent with the terms stated in the document. The terms which are expressly stated in the document cannot be allowed to be contracted by any oral agreement. Such evidence is allowed to be proved only on matters on which the document is silent. Secondly, in permitting the evidence of oral agreement the court is to have regard of the degree of formality of the document. If the document is extremely formal, evidence of an oral agreement shall not be allowed even on matters on which the document is silent. A written agreement, for example, is silent as to the time of payment of the price. If there is any oral agreement as to the time of payment of the same may be proved. 3) Condition precedent {proviso-3} the third proviso provides that the existence of any separate oral agreement constituting condition precedent to the attaching of any obligation under the document may be proved. Where the parties to a promissory note payable on demand, orally agreed that payment would not be demanded for five years, the Supreme Court allowed the oral agreement to be proved.

14

AIR 1956 Bom. 721.

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If the party liable under a document has already stated making payments under it, he cannot afterwards set up the defence of an oral condition precedent to liability. In a mortgagors suit for rejection it was held that oral evidence could be admitted to show that the document was not intended to be acted upon, that it was a sham document and that it was executed only as a collateral security. Facts, however, showed no evidence to that effect. 4) Recession or modification {proviso -4} to rescind a document means to set it aside and to modify means to drop some of it as cancelled or to modify some of its terms; such oral agreement may be proved. This is, however, subject to one qualification stated in the proviso itself, namely, where the contract is one is required by law to be in writing, or where it has been registered according to the law relating to registration of documents, then proof cannot be given of any oral agreement by which it was agreed either to resigned the document or to modify its terms. 5) Usages and customs {proviso-5} the proviso, therefore, provide that the existence of any usage or a custom by which incidents are attached to a particular type of contract can be proved. But this is subject to the condition that the usage or custom of which proof is offered should not be against the express terms of the document. The usage should not be repugnant to or inconsistent with the document, for otherwise it would nullify the document. Where goods sold are to be carried by the railways, but the contract does not mention as to who is to arrange for wagons, evidence may be offered that by the custom of the trade seller had to arrange for wagons. 6) Relation of language of facts {proviso-6} every contract intended to apply to certain facts. The facts upon which the document is to operate are sometimes set out in the contract itself and sometimes not. Where, for example, a person transfers the whole of his property, but doesnt describe or state where his property is. In such cases the property to which the document relates can be proved by oral evidence. Similarly, where a written contract says that it subject to the usual clause, the usage prevalent in a particular trade may be proved by oral evidence. Oral evidence is also receivable to throw light upon the nature of a document. The section does not fetter the power of the court to arrive at the true meaning of a document as disclosed by all the relevant surrounding circumstances. In Abdullah Ahmed v. Animendra Kissen15, the Supreme Court cited the following passage from Halsbury: The evidence of the conduct of the parties in this situation as to how they understood the words to mean can be considered in determining the true effect of the contract made between the parties. Extrinsic
15

AIR 1980 SC 143.

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evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the facts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument. EXCEPTION -1 Appointment of a Public Officer Where the appointment of a public officer is required by law to be made by writing and the question is whether an appointment was made, if it is shown that a particular person has acted as such officer that will be sufficient proof of the fact of appointment and the writing by which he was appointed need not be proved. EXCEPTION -2 Wills Wills admitted to probate in India may be proved by the probate. The document containing the will need not be produced. Probate is copy of the will certified under the seal of the court and, therefore, is a sufficient proof of the content of the will.

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CONCLUSION
After an exhaustive researcher, the researcher has a point of view that documentary evidence are more important and have more judicial than oral evidence. We cannot deny the value of them and relevancy of them but documentary prove to be very useful. 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.

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