The general principle is that, all the relevant facts or facts in issue of a case must be proved by some evidence viz., oral or documentary. However, as exceptions to the aforesaid general rule, these are certain facts which need not to be proved by evidence. Those exceptions are:
(i)When judicial notice has been taken regarding the facts (section 57), or
(ii)When facts have been formally admitted by the parties (section 58).
To understand this topic more clearly, first of all we may take note of sections 56 and 57. Section 56 provides that, no formal evidence is required of facts for which the Court has taken judicial notice. While section 57 of the Act mentions a list of facts of which the Court can take judicial notice. For the purpose of reference let us see what sections 56 & 57 read:
56. Fact judicially noticeable need not be proved.-
No fact of which the Court will take judicial notice need to be proved.
57. Facts of which Court must take judicial notice.-
The Court shall take judicial notice of the following facts:-
(1) All laws in force in the territory of India;
(2) All public Acts passed or hereafter to be passed by Parliament of the United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;
(3) Articles of War for the Indian Army, Navy or Air Force;
(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any law for the time being in force in a Province or in the State;
(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;
(6) All seals of which English Courts take judicial notice : the seals of all the Courts in India, and all Courts out of India established by the authority of the Central Government or the Crown Representative: the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India;
(7) The accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette;
(8) The existence, title and national flag of every State or Sovereign recognized by the Government of India;
(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette;
(10) The territories under the dominion of the Government of India;
(11)The commencement, continuance, and termination of hostilities between the Government of India and any other State or body of persons;
(12) The names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;
(13)The rule of the road, on land or at sea.
In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so, unless and until such person produces any such book or document as it may consider necessary to enable it to do so.
In order to understand the correct meaning of sections 56 and 57 they should be taken together. Section 56 lays down that when a fact, which is relevant in a case, is of such a nature that the Court must take judicial notice of it, no evidence in proof of it should be given. The Apex Court has held that the Court can take judicial notice of alternative sources. The Apex Court can take judicial cognizance of the fact that a certain area is terrorist stricken. Section 57 gives a list of facts of which the Courts must take judicial notice of. Thus, both the sections taken together mean that when controversy arises with regard to the facts enumerated in section 57, the parties who assert their existence, need not produce any evidence to prove the existence of such fact. The judge shall try to know about such facts and if the judge's own knowledge will not help him, he can call upon the parties to assist him. The judge may resort to any source of information which he finds handy and which he thinks will help him. Thus he might consult any book, or obtain information from any person. Judicial notice can be taken of a notification issued by the Government or any competent authority in the exercise of any delegated power of legislation; Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd., MANU/SC/0169/1984 : AIR 1985 SC 330: (1985) 1 SCC 260: 1985 (1) Land LR 443: 1985 SCC (Tax) 75: (1985) 1 Andh LT 257: 1985 UJ (SC) 368: (1985) 58 Comp Cas 145: (1985) 2 SCR 190.
In State of Madhya Pradesh v. Dhirendra Kumar, MANU/SC/1029/1997 : AIR 1997 SC 318: 1997 AIR SCW 74: 1996 (4) Crimes 195: JT 1996 (10) SC 93: 1997 (1) Jab LJ 215: 1997 (1) Raj LW 38: MANU/SC/1029/1997 : (1997) 1 SCC 93: 1997 SCC (Cri) 54; it was held by Supreme Court that, judicial notice can be taken of fact that many a time prescribed registers are not available and so they are kept in non-prescribed way. Many a time even a case diary is not kept in prescribed way.
The second class of facts which need not to be proved are facts which have been admitted by the parties or his agents. Section 58 of the Act, provides that:
58. Facts admitted need not be proved.-
No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
Section 58 lays down that if the parties to a proceeding or their agent agree to admit a fact at the hearing, or which they agree to admit by writing before the hearing, or which by any rule of pleading in force they are deemed to have admitted by their pleadings, it need not, be proved by the opposite party. X sends a notice to Y in writing that Y is a tenant in his house on a rent of Rs. 8 per month, that he had not paid the rent for 6 months and so he should pay the rent and vacate the house. Y sends a notice in reply that he is tenant of X but has paid the rent up to date. Afterwards X files a suit against Y for ejectment and for arrears of rent, Y denies the contract of tenancy between the parties. Here Y has admitted the fact of tenancy in writing before the hearing and so X may rely on that notice and need not adduce any other evidence to prove the contract of tenancy.
In a civil case if the party or his pleaders agrees to admit a fact, it need not be proved by the opposite party. In criminal case, the rule of evidence are subject to the general principle of jurisprudence that it is the duty of the prosecution to prove the case against the accused and that they should not rely admission made by him in the course of the trial for convicting him. It is a well-established principle of Criminal Law that the prisoner can consent to nothing. It is an elementary rule that except by a plea of guilty admissions dispensing with proof are not permitted in a criminal trial. No consent or admission by the prisoner to his counsel can dispense with proof.
Facts which need to be proved, may be proved by the following methods:
(i)Oral evidence; and
(ii)Documentary evidence.
This means that there are two methods of proving a fact. One is by producing witnesses of fact, which is called 'oral evidence', and the other, by producing a document which records the fact in question and this is called 'documentary evidence'.
(i) Oral evidence
The meaning of the expression 'oral evidence' is given along with the definition of the term "evidence" in section 3 of the Evidence Act. It says:
"All statements which the Court permits or requires to be made before it by witnesses in relation to the matter of fact under inquiry; such statements are called oral evidence."
Oral evidence is the evidence which is confined inter alia to words spoken by mouth. Oral evidence, if worthy of credit, is sufficient without documentary evidence to prove a fact or title. Where a fact may be proved by oral evidence it is not necessary that the statement of the witness should be oral. Any method of communicating thought which the circumstance of the case or the physical condition of the witness demand may, in the discretion of the Court, be employed. Thus, a dumb may testify by signs or by writing.
Section 59 of the Act provides that:
59. Proof of facts by oral evidence.-
All facts, except the contents of documents or electronic records, may be proved by oral evidence.
This means, all facts, except the contents of the document, may be proved by oral evidence. It means circumstances, background of the document, location of the document, contents of last documents, identification etc. may be proved by oral evidence; Fuljari Lal v. Ram Sarup, AIR 1953 MB 177.
This section lays down that where written documents exists, they shall be produced as being the best evidence of their own contents and no oral evidence can be adduced to prove as to what is wrong in the document. For example X and Y enter into a contract that Y shall be supplying 20 mounds of wool to X every month. This contract was reduced in writing. If controversy arises between the parties about the terms of the contract it can be proved only by the document. Oral evidence will not be allowed. The document must be produced before the Court.
Section 60 lays down condition that oral evidence must be direct. The word "must" is mandatory and imposes a duty on the Court to exclude all indirect oral evidence. This means that a witness can tell the Court, only a fact of which he has the first hand personal knowledge in the sense that he perceived the fact by any of the five senses. When the statement was not made in presence or hearing and the person subsequently come to know of it through some other source, he cannot appear as a witness, for his knowledge is a derived knowledge and is nothing but hearsay and it is a maxim of law that hearsahy evidence is not relevant, subject to a few exceptions which is provided in the later part of this chapter.
The word 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else.1
The term 'hearsay' is used with reference to that which is written as well as that which is spoken, and, in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also in part on the competency of some other person. When the witness says that he himself did not hear the defamatory words but another person told him about it, the credit for hearing the statement does not go to the witness but to somebody else. Similarly, when the witness says that he did not see the occurrence himself but somebody told him, the credit of seeing the occurrence does not go to witness but it goes to somebody else. Hearsay evidence is that evidence which comes indirectly that is to say which comes not from the knowledge of the person who deposes it but through some other person.
Section 60 excludes hearsay evidence. Hearsay evidence means the statement of a witness not based on his personal knowledge but on what he heard from others; Sakatar Singh v. State of Haryana, AIR 2004 SC 2570: (2004) 11 SCC 291: 2004 Cr LJ 2076: 2004 AIR SCW 2388: 2004 (3) Crimes 1: 2004 (3) SLT 257: 2004 (5) SRJ 213: (2004) 4 SCALE 529: 2004 (3) Supreme 661.
In law of Evidence, it is very difficult to make any general statement about the law of hearsay evidence which is entirely accurate. The rule has never been absolute. The correct rule as to hearsay therefore is that, statement, oral or written reported to have been made by persons not called as witnesses are not admissible in evidence subject to certain exceptions:
(i)Res Gestae (section 6);
(ii)Admissions and Confessions;
(iii)Certain statements, made by persons dead or who cannot be called as witnesses which include dying declarations, statements made in due course of business, statement is against interest, statements giving opinion as to public right or custom, statements relating to pedigree (section 32);
(iv)Previous deposition of a witness who is dead or cannot be called as a witness (section 33);
(v)Entries in books of account kept in the course of business (section 34);
(vi)Entries in public registers of record (section 35); maps and charts, etc.
(vii)Statement of Experts in treatises (section 60, proviso). Every article published or a book written cannot ipso facto be regarded as conclusive or worthy of acceptance. What is stated therein may only be a view of the author and may not be based on a date which is scientifically collected from reliable source. Kripal, J. in Hasmattullah v. State of Madhya Pradesh, MANU/SC/0518/1996 : (1996) 4 SCC 391 (401): AIR 1996 SC 2076: 1996 AIR SCW 2498: JT 1996 (5) SC 295: 1996 Jab LJ 406: 1996 (3) SCJ 113: 1996 (2) UJ (SC) 478.
A circumstantial evidence though not a direct evidence of the facts of issue or relevant fact, cannot be said identical with hearsay evidence. X is charged with murder of Y. Z says that he saw X killing Y. This is direct evidence. H says that Y told him that X killed Y. It is hearsay evidence. H says that he saw X coming out of the room, where Y's body, was found, with a blood-stained knife. This is a circumstantial evidence. Circumstantial evidence must be proved by direct evidence and not hearsay evidence.
Direct EvidenceHearsay Evidence
1.Direct evidence is that which the1.Hearsay evidence is that which has
witness is giving on basis of hisbeen derived by other person.own perception.
2.Direct evidence is best oral2.Hearsay evidence is secondary one
evidence of the fact to beand it is admitted in exceptional cases.proved.
3.The liability of veracity of direct3.In case of hearsay evidence, the person
evidence is on person who isgiving evidence does not take the
giving evidence.responsibility of its veracity.
4.The person giving direct evidence4.The person giving hearsay evidence is
is available for cross-examinationnot author of original evidence. It is
for testing its veracity.derived from original author.
5.The source of direct evidence is5.In case of hearsay evidence, the person
the person who is present in courtgiving hearsay evidence is not original
and giving evidence.source of evidence given by him.
(ii) Documentary Evidence
61. Proof of contents of documents.-
The contents of documents may be proved either by primary or by secondary evidence.
Generally speaking 'document' means anything or matter which contains a permanent record of a relevant fact or fact in issue.
The word "document" has been defined under section 3 of the Act, as follows:
"Document".-"Document" under section 3 of Evidence Act, 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
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.
As a general rule, the contents of every document must be proved by the "primary evidence" i.e., by document itself. But in exceptional cases, the same may be proved by the "secondary evidence".1 Thus, the contents of document must be proved by two means, viz.,
(i)Primary Evidence; and
(ii)Secondary evidence.
The Supreme Court in case of Mir Nagvi Askari v. C.B.I., MANU/SC/1412/2009 : AIR 2010 SC 528 held that before signing the document relating to the posting of cheque an officer of the Current Account Department only would verify the entries made in computer on the basis of which a printout would be taken out which is considered to be a document authorisation in respect thereof.
The expression 'primary evidence' has been defined under section 62 of the Act in the following words:
62. Primary evidence.-
Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1.-Where a document is executed in several parts, each part is primary evidence of the document;
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2.-Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
Illustration
A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
This section based on the principle that best evidence must be produced before the Court of law. The following four are included in the expression "primary evidence":
(i)The original document itself produced for the inspection of the Court; C.P. Agarwal v. P.O., Labour Court, MANU/SC/0906/1997 : (1996) 11 SCC 97: AIR 1997 SC 3655: 1997 Lab IC 1496: 1997 AIR SCW 1338: JT 1996 (9) SC 729: 1997 (3) LLJ 788: 1997 (2) LLN 7: 1997 SCC (L&S) 370: 1997 (1) Supreme 288: 1997 (1) UJ (SC) 284.
(ii)Where a document is executed in several parts, each part is primary evidence of the document.1
(iii)Where a document is executed in counterparts, each counterpart is primary evidence against the party signed it.2 For the other party, it is a secondary evidence. E.g., the cheque is a primary evidence against drawn but its counterfoil which has been signed by the payee, will be a primary evidence against him.
(iv)Where a number of documents are all made by one uniform process (as in the case of printing, lithography, or photograph) each is primary evidence of the contents of the documents.
Explanation:-The first portion of the first explanation of the section refers to what are known as duplicate, triplicate or the like original. Sometimes it is convenient that each party to transaction should have a complete document in his possession. To fulfil this purpose, the document is written as many times as there are parties and each document is signed by all the parties. All of them are originals.
The expression "secondary evidence" of a document is defined in section 63 as follows:
63. Secondary evidence.-
Secondary evidence means and includes-
(1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4)Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.
Section 63 is not restricted to its five clauses but leaves enough scope for the words "means and includes". Certified copies of original documents comes within the ambit of secondary evidence; Kalyan Singh v. Chhoti, MANU/SC/0258/1989 : AIR 1990 SC 396: JT 1989 (4) SC 439; A.P. State Road Transport Corporation, Hyderabad v. P. Venkaiah, MANU/SC/0676/1997 : (1997) 10 SCC 128: AIR 1997 SC 2600: 1997 AIR SCW 2556: JT 1997 (5) SC 362: 1997 (2) LACC 35: 1997 (2) Land LR 257: 1997 (2) SCJ 35: (1997) 3 SCR 1054: (1997) 4 SCALE 154: 1997 (4) Supreme 606. When secondary evidence is admitted because primary document is not available, then oral accounts of the contents of a document must be given by some person who himself has seen it.
Primary EvidenceSecondary Evidence
1.Primary evidence is original1.Secondary evidence is the document
document which is presentedwhich is not original document but
to the Court for its inspection.those documents which are mentioned
in section 63.
2.Primary evidence is the best2.Secondary evidence is not best
evidence in all circumstances.evidence but is evidence of secondary
nature and is admitted in exceptional
circumstances mentioned in section 63.
3.Giving primary evidence is3.Giving secondary evidence is ex-
general rule.ception to the general rule.
4.No notice is required before4.Notice is required to be given before
giving primary evidence.giving secondary evidence.
5.The value of primary evidence5.The value of secondary evidence is not
is highest.as that of primary evidence.
Section 64 of the Act, embodies one of the underlying principles that a document must be proved by its primary evidence. Section 64 says:
64. Proof of documents by primary evidence.-
Documents must be proved by primary evidence except in the cases hereinafter mentioned.
Section 64 lays down the best evidence rule with reference to documentary evidence. It says that the best evidence of the contents of the document is the document itself i.e., the original document. The contents of the document must be proved by production of original document i.e., primary evidence. The production of certified copy of revenue records to prove the settlement is inadmissible. Order of settlement being primary evidence has to be produced.
The Supreme Court in case of Malaya Kumar Ganguly v. Sukumar Mukherjee, MANU/SC/1416/2009 : AIR 2010 SC 1162, observed that "it is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is however trite that a document becomes inadmissible in evidence unless author thereof is examined, the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a Court of Law."
Section 65 of the Act, regulates the circumstances in which secondary evidence can be given. This section reads:
65. Cases in which secondary evidence relating to documents may be given.-
Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:-
(a)When the original is shown or appears to be in the possession or power-
of the person against whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of the Court, or
of any person legally bound to produce it,
and when, after the notice mentioned in section 66, such person does not produce it;
(b)when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c)when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d)when the original is of such a nature as not to be easily movable;
(e)when the original is a public document within the meaning of
section 74;
(f)when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g)when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
In substance, section 65 provides that secondary evidence can be given in the following cases:
(a) (i)Where the original is in possession of adversary party.-The first case in which a secondary evidence of the contents of a document may be given is when the original is in possession or power of the person against whom it is sought to be proved; Maneklal Mansukhbhai v. Hormutsji Jamshedji Ginwalla and Sons, MANU/SC/0037/1950 : AIR 1950 SC 1: 1949 FLJ 398: 1949 FCR 484: (1950) 1 MLJ 752: 1950 MWN 767: 1950 ALJ 369: MANU/SC/0037/1950 : 1950 SCR 75: 1950 SCJ 317: (1950) 2 MLJ 344.
(ii)Where the original is in possession of a person out of reach or no subject to the process of the Court.
(iii)Where the original is in possession of a person legally bound to produce it.
(b)Where the existence or contents of the original have been admitted.-In this clause when the existence or contents of the original deed has been proved to be admitted in writing by the person against whom it is sought to be proved or by his representative-in-interest, the original need not be summoned and the contents of a document may be proved by secondary evidence.
Ishwar Das Jain (dead) through L.R. v. Sohan Lal (dead) through L.R., MANU/SC/0747/1999 : AIR 2000 SC 426: 1999 AIR SCW 4573: JT 1999 (9) SC 305: MANU/SC/0747/1999 : (2000) 1 SCC 434: 2000 (1) SCJ 197: 2000 (1) SRJ 247: (1999) 7 SCALE 277: 1999 (10) Supreme 27: 2000 (1) UJ (SC) 666; in the present case there was question of proof of execution of mortgage deed. The execution of mortgage deed not specifically denied by defendant. It was therefore not necessary to call attester into witness box. The defendant mortgagee refusing to file original deed. Thereupon the plaintiff filing certified copy as secondary evidence. It was sufficient proof of execution of mortgage deed.
(c)When the original is not easily movable.-When the original is of such a nature as not to be easily movable, the secondary evidence of the contents of the document may be allowed. In this case, secondary evidence is admissible on account of great inconvenience and impracticability of producing the original.
(d)When the original is a public document.-When the original is a public record, under section 74 of the Evidence Act, a secondary evidence of its contents are admissible under this clause. In this case secondary evidence is admissible even when the original is in existence. This exception is based upon the consideration of conveniences.
(e)Certified copy permitted by the Act.-Secondary evidence of the contents of a document is admissible when the original is a document of which a certified copy is permitted by this Act, or by any other law enforceable in India.
(f)When the original consists of numerous account or huge document.-This Provision is for the saving of public time. If the points to be ascertained where the balance in a long series of account in a merchant's account-book, certainly great inconvenience would be caused and much of public time would be wasted if the whole of the books were to be produced before the court. Therefore, a person is asked to examine the account-books and then make his statement before the Court.
(g)When the original has been destroyed or lost or cannot be produced.
In case of Sattamma v. Bikshapati, MANU/AP/0360/2010 : AIR 2010 AP 166 it was held that section 65(c) comes into play where the original has been destroyed or lost and when the party has made diligent search for it and exhausted all sources and means available for its production secondary evidence is admissible; Sattama v. Ch. Bikshapati, MANU/AP/0360/2010 : AIR 2010 AP 166.
The clause (e) of section 65 which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is public document secondary evidence is admissible even though the original document is still in existence and available; Tukaram S. Dighole v. Manikrao Shivaji Kokate, MANU/SC/0086/2010 : AIR 2010 SC 965.
One of the fundamental principles of the law of evidence is that in all cases the best evidence should be given. Where the fact to be proved is embodied in a document, the document is the best evidence of the fact. The maxim of law is that "whatever is in writing must be proved by the writing". Section 91 of the Act incorporates this principle in the following words:
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.-
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 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.
Illustrations
(a) If a contract be contained in several letters, 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 contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo 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 receipt for money paid by B.
Oral evidence is offered of the payment.
The evidence is admissible.
The section emphasizes that when a contract, grant or some other disposition of property is reduced to the form of a document or is required by the law to be reduced to a document, no evidence shall be given for the proof of it except the primary or secondary evidence of the writing itself. Section 91 extends to both types of transaction, namely:
(i)Which have voluntarily been made by writing; and
(ii)for which writing is compulsory. E.g., transfer of immovable property of the value of more than Rs. 99 is required to be in writing and registered.1
Exception 1.-The general rule is that when the contents of a writing is to be proved, the writing itself must be produced or when its absence is accounted for, secondary evidence may be given. To this general rule there is an exception. When it is required that a public officer should be appointed by some writing, and when it is shown that any particular person has acted as such officer the writing by which he has been appointed need not be proved. When the question is whether X is a High Court Judge, the warrant of appointment need not be proved, the only fact that he is working as a High Court Judge will be proved. X appears before a Court as a witness. He says that he is a civil surgeon, to establish that he is a civil surgeon he need not to produce the appointment order. He has only to show that he has been working as civil surgeon. The fact that a person has acted in an official capacity is also an evidence of his due appointment to the officer, because it cannot be supposed that any man would venture to intrude himself into a public situation which he was not authorised to fill.
Exception 2.-To the general rule of producing the writing itself there is one more exception. When a probate has been obtained on the basis of a Will and afterwards question arises about the existence of that Will, the mere production of the probate will prove the existence of the Will, the original Will need not be produced. Under this exception the contents of a Will of which probate has been granted may be proved by the probate. The 'probate' means the copy of a Will certified under the seal of the Court of competent jurisdiction with a grant of administration to the estate of the testator.
Explanation I.-A written evidence need not be comprised in a single document, or be drawn up in the any particular form. A contract or a grant may be executed by a single document or by several documents. Explanation (1), requires that section 91 applies equally whether a contract, grant or any other disposition of the property is comprised in a single document, or in more documents than one. If the terms of the contract, grant or other disposition of the property is contained in documents more than one all the documents are to be produced before the Court to prove the terms of the contract. It is not open to a party to a judicial proceeding to lead oral evidence to prove the terms contained in any of the documents. A, a resident of Calcutta proposes to sell a house to B a resident of Delhi. The terms of the sale are settled between them by letters. Five letters on each side comprised the terms of the contract. To prove the terms of the contract all the ten letters are to be produced before the Court.
Explanation II.-Explanation 2 lays down that when there are more originals than one, only one of them is to be proved before the Court. A common instance is that if a bill of exchange is drawn in a set of three, one only need to be proved.
Explanation III.-Explanation 3 attempts to illustrate what is called as Exceptions to the rule embodied in this section. In the opening words of the section the facts coming within its purview are described as the terms of the contract or of a grant or of any other dispositions of the property, reduced to writing by agreement of the parties or by the requirements of law. Thus it is clear that section 91 shuts up any other kind of evidence except the original document in cases whether the terms of a contract or of a grant or of any other disposition of property had been reduced to the forms of a document by the agreement of the parties or by the requirements of law. Therefore, if in any document there is a statement of facts other than those referred to above i.e., if any document does not relate to any of the three classes of facts mentioned in the section, oral evidence is not excluded by it.
Section 92 of the Evidence Act, provides that:
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:
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 of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law:
Proviso (2).-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this 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 distinct subsequent oral agreement to rescind or modify 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.
Illustrations
(a) A policy of insurance is effected on goods "in ships from Calcutta to London". The goods are shipped in a particular ship which is lost. The fact that that particular ship was orally excepted from the policy, cannot be proved.
(b) A agrees absolutely in writing to pay B Rs. 1,000 on the 1st March, 1873. The fact that, at the same time, an oral agreement was made that the money should not be paid till the thirty-first March, cannot be proved.
(c) An estate called "the Rampure tea estate" is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed, cannot be proved.
(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B's as to their value. This fact may be proved.
(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.
(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.
(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words "Bought of A a horse for Rs. 500". B may prove the verbal warranty.
(h) A hires lodgings of B, and gives B a card on which is written-"Rooms, Rs. 200 a month". A may prove a verbal agreement that these terms were to include partial board.
A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally.
(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this.
(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered.
In the light of ratio laid down in R. Janakiraman v. State, 1 (2006) SLT 50, we may bring out the principles relating to section 92 of the Evidence Act; thus:
(i)Section 92 is supplementary to section 91 and corollary to the rule contained in section 91.
(ii)The rule contained in section 92 will apply only to the parties to the instrument or their successors-in-interest. Strangers to the contract (which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument. On the other hand, section 91 may apply to strangers also.
(iii)The bar under section 92 would apply when a party to the instrument, relying on the instrument, seeks to prove that the terms of the transaction covered by the instrument are different from what is contained in the instrument. It will not apply where anyone, including a party to the instrument, seeks to establish that the transaction itself is different from what it purports to be. To put it differently, the bar is to oral evidence to disprove the contract itself, or to prove that the document was not intended to be acted upon and that intention was totally different.
Applying the aforesaid principles, it is clear that the bar with section 92 will apply to a proceeding inter-parties to a document and not to a criminal proceeding, where the prosecution is trying to prove that a particular document or set of documents are fictitious documents created to offer an explanation for disproportionate wealth. Oral evidence can always be led to show that a transaction under a particular document or set of documents is sham or fictitious or nominal, not intended to be acted upon.
Sections 91 and 92 also recognize certain exception to this general rule. Section 91 sets out the exceptions in form of exceptions and explanations, while section 92 sets them out in the form of provision to the main rule. The exceptions are as follows:
The Supreme Court in Gangabai v. Chhabubai, MANU/SC/0385/1981 : (1982) 1 SCC 4: AIR 1982 SC 20: 1982 UJ (SC) 1: (1982) 1 APLJ (SC) 1: 1982 MPLJ 1: (1982) 1 SCR 1176: (1982) 14 Lawyer 48: (1982) 2 SCWR 53; relied by the Supreme Court in R. Jankiraman v. State, 1 (2006) SLT 50 observed that,
"......Section 91 of the Evidence Act, lays down that 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, proviso (1) of section 92 declares that when the terms of any 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. And the first proviso to section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is clear to use that the bar imposed by proviso (1) of section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms."
According to proviso (1) to section 92, no man will be debarred from proving a fact, which will invalidate the contract. A contract, created by fraud, undue influence is invalid and not enforceable. So a man can easily prove such facts though the contract has been reduced to writing and that deed has been filed and proved under section 91 of the Evidence Act.
In K.M. Rajendran v. Arul Prakasham, MANU/TN/0284/1998 : AIR 1998 Mad 336: 1998 (4) Cur CC 286: 1998 (2) Mad LJ 423: 1998 (2) Mad LW 225: 1999 (1) Arb LR 227; the Madras High Court held that even though proviso (1) to section 92, it is open to the party to the agreement to lead evidence to vary, he or she precluded from varying the consideration amount either less or more than what it is specified in that agreement.
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:
(a)Firstly, the oral agreement should not be inconsistent with the terms stated in the document. Such evidence is allowed to be proved only on matters on which the document is silent; and
(b)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.
In Vinod Chaturvedi v. State of Madhya Pradesh, MANU/SC/0137/1984 : AIR 1984 SC 911: 1984 Cr LJ 814: (1984) 2 SCC 350: 1984 SCC (Cri) 250: 1984 (1) Crimes 733: 1984 Cur Cri J 128: 1984 Cr LR (SC) 202: (1984) 1 Cr LC 417; the Apex Court held that, where room was allotted by writing to a doctor because he was attached to the hospital as an honorary surgeon, he cannot be allowed to give oral evidence that he was lessee.
When there is a prior contemporaneous oral agreement about a matter on which the document is silent, proof of it can be given only when such oral agreement is not inconsistent with or does not contradict the terms of the contract. The proviso requires that (1) the separate oral agreement should relate to a matter on which the document is silent, and (2) that it is not inconsistent with the terms; Balaram Agasti v. Ramesh Chandra Mohanty, MANU/OR/0005/1973 : AIR 1973 Ori 13.
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.
This proviso lays down that where there is oral separate agreement to the effect that the terms of a written contract will not take effect or will be of no force until a condition precedent has been fulfilled or a certain event has happened, oral evidence is admissible to show that the condition not having been performed the contract did not mature and so was not enforceable; Balaram Agasti v. Ramesh Chandra Mohanty, MANU/OR/0005/1973 : AIR 1973 Ori 13.
This proviso permits proof of an oral agreement by which the document in question was either rescinded or modified. To rescind the document means to set it aside and to modify means to drop some of its terms.
In S. Saktivel (dead) Rep. by L.R. v. M. Venugopal Pillai, MANU/SC/0499/2000 : AIR 2000 SC 2633: 2000 AIR SCW 2849: JT 2000 (9) SC 345: MANU/SC/0499/2000 : (2000) 7 SCC 104: 2000 (3) SCJ 212: 2000 (8) SRJ 53: (2000) 5 SCALE 517: 2000 (5) Supreme 450. The Supreme Court held that proviso 4 of section 92 provides that where a contract or disposition not required by law to be in writing had been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by oral evidence and such evidence is admissible.
The second part of the proviso 4 of section 92 does not permit leading a part (oral) evidence for providing a subsequent oral agreement modifying or rescinding the registered document. The terms of a registered document can be altered, rescind or modified only by subsequent registered document and not otherwise.
The document required by law to be in writing; the deed by which the property is settled by father and his son. Law requires it to be in writing. The oral evidence to substantiate any subsequent arrangement which has effect of modifying earlier written deed cannot be permitted.
In Md. Serajuddin v. Md. Abdul Khalique, MANU/GH/0491/2003 : AIR 2004 Gau 126: 2003 (3) Gau LT 696: 2005 (1) Gau LR 299; it was held by the Gauhati High Court that, the fact that the mortgagor visited the mortgagee twice over for redeeming the mortgage was allowed to be proved by oral agreement.
Any usages or customs by which incidents not mentioned in any contract are usually annexed to contract. Parole evidence of usages or customs is always admissible. Where the object is to make intelligible to the Court the meaning in which the parties have used language the parole evidence may be given to prove any local custom of the general application so that it may be applied to the subject-matter and bind the parties to a written contract, unless it is inconsistent with the writing. In commercial transaction sometimes such terms are used which have got attached to them some peculiar meaning by customs.
Therefore, the proviso provides that, the existence of any usage or a custom by which incidents are attached to a particular type of contract can be proved.
The last proviso provides that, any fact may be proved which shows in what manner the language of a document is related to existing facts.
Whenever a Court has to deal with a document which have been proved, its object is to endeavour, to ascertain its real meaning and for this purpose extrinsic evidence is sometimes necessary. So the proviso (6) says that "any fact may be proved which shows in what manner the language of a document is related to the existing facts." The object of admissibility of the evidence of the surrounding circumstances is to ascertain the real intention of the parties but those intentions of the parties must be gathered from the language of the document as explained by extrinsic evidence. No evidence of any intention inconsistent with plain meaning of the words used will be admitted for the object is not to vary the language used, but only to explain the clause in which the words are used by.
In Raj Kumar Rajindra Singh v. State of Himachal Pradesh, MANU/SC/0322/1990 : AIR 1990 SC 1833; the Supreme Court held that if some condition of a document is unambiguous, then to determine the real intention of the parties extrinsic evidence is not allowed because section 92 provides that the real intention of the parties to the document should be gathered from the language used in the document. But if the document is ambiguous and there is more than one meaning of the language used in document then the sixth proviso of section 92 should be looked into which gives permission to the Court to take into consideration the conduct of the parties and surrounding circumstances in order to ascertain the real meaning of the document. In the cases of this type the oral evidence of this type give directive to the Court in ascertaining the real intention of the parties to the document. In these cases the subsequent conduct of the parties provides the evidence to ascertain the real intention of the parties and to remove the ambiguity in the language of the document.
The 'best evidence rule' means that the best evidence of which the case in its nature is susceptible must always be produced. The rule does not require the production of the greatest possible quantity of evidence, but it is framed to prevent the introduction of any evidence which raises the supposition that there is a better evidence behind it, in possession or under control of the party by which he might prove the same fact, and which is withheld by the party.
The main object of the law of evidence is the investigation or inquiry must be made by Courts within the bounds prescribed by general convenience. The best evidence must be given in all cases and the evidence must be confined to the matter in issue, hearsay evidence must not be admitted.
It is one of the cardinal rules of law of evidence that the best evidence in possession of the party must always be given, i.e., if a fact is to be proved by oral evidence, the evidence must be that of a person who had directly perceived the fact to which he testifies. Otherwise, it would be impossible to test, by cross-examination, the truth of the testimony; and the law rejects the evidence which can not adequately be tested.
In Bai Hira Devi v. Official Assignee of Bombay, MANU/SC/0001/1958 : AIR 1958 SC 448: 1958 SCJ 766: (1958) 2 Andh WR (SC) 108: 60 Bom LR 932: (1958) 2 MLJ (SC) 108: 1959 SCA 136: MANU/SC/0001/1958 : 1958 SCR 1384; the apex Court observed that, in the Evidence Act, section 91 lays down the 'best evidence rule' i.e., the contents of a document must be proved by the document itself. When the document has been produced to prove its terms then section 92 comes into operation for the purpose to excluding evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. Therefore, sections 91 and 92 are supplement to each other, but differs in the following material particulars:
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Section 91 |
Section 92 |
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(i)It applies to all documents whether |
(i)It applies only to the documents |
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they purport to dispose of rights or not. |
which can be described as dispositive. |
(ii)It applies to documents which are Both bilateral and unilateral. |
(ii)It confines only to bilateral documents. |
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(iii)It lays down the rule of universal |
(iii)It applies only between the parties as |
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application and is not confined to |
the representatives-in-interest, to the |
|
the executant or executants of thedocuments. |
instrument. |
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(iv)It may apply to strangers. |
(iv)It cannot apply to strangers of instrument. |
In Sara Veeraswami v. Talluri Narayyan, AIR 1946 PC 32; the appellant sold some property through a registered sale deed in 1932. It was an outright sale. But simultaneously, there was an oral agreement for sale and right to reconveyance if sale price was repaid within 5 years. The question involved in dispute is whether the document is a sale with or without right to reconveyance as per oral agreement and benefit of proviso to section 92 is available? According to operating part of section 92, written agreement will prevail over oral agreement. But proviso (2) makes a difference. In this case, it is necessary to see whether oral agreement as to the reconveyance of property sold, contradicts, varies, adds to or subtracts from the terms of sale document. The answer lies in the truth of the agreement.
Whether the transaction of sale and reconveyance are a single transaction or two separate ones? There can be different agreements of sale and then resale or reconveyance relating to the same subject-matter. The Privy Council held that, there were two different transactions. The determining factor is the ultimate shape of agreement and both written as well as oral agreement can be separate transactions though touching on a common subject-matter. Such was the character of transactions in this case and the oral agreement did not contradict, vary and substract from the terms of sale deed. The words 'adding to' also do not suffice to exclude oral agreement relied by the appellant. Thus, proviso 2 to section 92 is applicable and oral agreement is a valid separate transaction which will prevail. The appeal was allowed.
In Roop Kumar v. Mohan Thedani, MANU/SC/0276/2003 : (2003) 6 SCC 595: AIR 2003 SC 2418: 2003 AIR SCW 2425: (2003) 3 SCR 292: 2003 (3) SLT 80: 2003 (7) SRJ 81: (2003) 3 SCALE 611: 2003 (3) Supreme 296; a suit for injunction had been filed and the same is pending adjudication. Additional plea was taken that as per averments in the plaint, defendant is alleged to have committed act of criminal trespass on 2-5-1980 after surrendering possession to the plaintiffs, so the suit on the basis of agreement dated 15-5-1975 or on the basis of termination of agency-cum-licence deed is not maintainable.
Before the High Court the parties agreed that the basic question which required consideration was whether relationship between the respondent and the appellant was that of licensor and licensee or it was that of lessor or lessee. The trial Judge had held that the transaction between the respondent and appellant evidenced by an agreement dated 15-5-1975 amounts to licence and not sub-letting. There was a finding recorded by the Trial Court to the effect that the appellant was a party to earlier ejectment proceeding which was not factually correct.
The High Court held that the agreement dated 15-5-1975 was entered into between them with mutual consent and the appellant-defendant signed the same voluntarily and out of his free will; it was not a sham document; was in fact acted upon; the appellant-defendant was an accounting party in terms of the agreement.
The Supreme Court held that:
Every jural act may have the following four elements:
(a)the enaction or creation of the act;
(b)its integration or embodiment in a single memorial when desired;
(c)its solemnization or fulfilment of the prescribed forms, if any; and
(d)the interpretation or application of the act to the external objects affected by it.
The first and further are necessarily involved in every jural act, and second and third may or my not become practically important, but are always possible elements.
The enaction or creation of an act is concerned with the question whether any jural act of the alleged tenor has been consummated; or, if consummated, whether the circumstances attending its creation authorize it avoidance or annulment. The integration of the act consist in embodying it is a single utterance or memorial _ commonly, of course, a written one. This process of integration may be required by law, or it may be adopted voluntarily by the actor or actors and in the latter case, either wholly or partially. Thus, the question in its usual form is whether the particular document was intended by the parties to cover certain subjects of transaction between them and, therefore, to deprive of legal effect all other utterances.
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