DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A. P., INDIA.

PROJECT TITLE:

Oral Evidence for Contents of Documents – Practice and Procedure

SUBJECT:

LAW OF EVIDENCE

NAME OF THE FACULTY:

Ms. Nandini CP

NAME OF THE STUDENT:

Vinay Yerubandi

Roll no : 2018096

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ACKNOWLEDGEMENT:

I would like to express my heartfelt gratitude to Nandini ma’am for allotting me the Oral
Evidence for Contents of Documents – Practice and Procedure. Working on this topic has
helped me grasp the nuances of regarding when can an oral evidence be admissible in case of
documentary evidence and what will be its evidentiary value.

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 Contents
1. Synposis 4

2. Best Evidence Rule 10

3. Oral testimony in context of Contractual Documents 11

4. Distinction between Sec. 91 and Sec. 92 12

5. Case Analysis 14

6. Conclusion 24

7. Bibliography 25

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 1. Synopsis

Topic: Oral Evidence for Contents of Documents – Practice and Procedure

Introduction:

It is common learning in the law of evidence that a writing or document is the best evidence
of what it contains. Indeed, the term 'best evidence' has been described as a convenient short
description of the rule as to proving the contents of a writing. Therefore, generally, oral
testimony will not be admitted to prove what was contained in a writing. the document itself
must be produced and offered in evidence. The reasons for this rule are founded on the
uncertainty of oral testimony based on recollection, and the inability to reproduce properly such
characteristics as form, handwriting and physical appearance. But, this general rule has several
exceptions, and it is with these exemptions my project is concerned

Sec. 22 of the Indian Evidence Act, 1872 clearly states that oral evidence as to contents of
documents can’t be permitted. But it also creates exceptional circumstances in which they can
be allowed. One is when the party is entitled to present the secondary evidence and another is
when there is a question on the genuineness of the document. The evolutionary nature of law
had created many different principles to apply when there is a question on the admissibility of
oral evidence regarding the contents of documents.

Legislators also amended the act to differentiate between documents and electronic records by
inserting Sec. 22A. While there are two exceptional situations for permitting admissibility of
documents, there is only one exception in case of electronic records i.e. when the genuineness
of the document is questioned.

Notwithstanding these, oral evidence as to facts of the documents can be allowed by the court
without any doubt. These include situations like when the party has to prove mere fact of a
personal or official status, or of a legal relationship, of which a writing is the foundation, proof
of ownership of personal property transferred by a writing, or proof of the mere existence or
execution of a document without referring to its contents.

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Research Questions:

1. Whether oral admissions as to contents of documents be allowed when the parties are
strangers to the document?
2. Whether document is collateral or not to the issue is relevant while allowing oral
evidence for contents of the documents?
3. Whether Oral evidence as to contents of documents can be given more weight than the
document?

Literature Review:

1. Oral Proof of Content Writing1

The author through this article had made a strong attempt to answer many questions regarding
the admissibility of oral evidence for contents of documents. The author has first discussed the
general rule and had explained its exceptions categorically.

The author categorised the exceptions into four situations :

i) Writing not foundation of claim or defence

ii) Writing which comes no nearer proving the fact to be established than oral
evidence
iii) Writing Remotely connected with main issue
iv) When Questions arises between persons not parties to the writing,

The author clearly elaborated the position in all these situations with the help of many English
cases. The author also discussed the positions when the document is destroyed, when the
contents of the writings is collateral to the issue and how can we determine that the writing is
collateral to the issue. One such case he used to explain position when the writing is collateral
to the issue is Daniel vs Smith 130 N.Y., 696. There the plaintiff sued to recover a sum of money
alleged to have been loaned to the defendant. Plaintiff testified that he had advanced the money
by giving defendant a written order on a third person, who owed plaintiff the amount thereof.
He was allowed to state the nature of the writing and the amount for which it was drawn. This
was held no error on the ground that the writing was collateral to the issue.

1
George I. Woolley, Oral Proof of Contents of Writings, 9 bench & b. O.s. 88 (1907).

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The author concluded by saying that “the best evidence rule” has many exceptions and the best
way to explain exceptions is “Where the particular fact sought to be proved does not form an
essential element of the cause of action or defence, but is merely corroborative or explanatory
of, or otherwise indirectly related to some fact or facts constituting essential elements of the
claim or defence, oral evidence of such fact may be given although it involves proof of the
contents of a writing, without the production of the writing or excusing its non-production,
even though the writing is the best evidence of such fact; and, further, where a particular fact
which does form an essential element of the claim or defence is sought to be proved by oral
testimony, and proof of this fact involves reference to a writing and to some extent a statement
of its contents, if the writing by its presence would bring the parties no nearer the solution of
the question at issue than does the oral testimony”

2. Best Evidence Rule-Oral Proof of Contents of Writings2

The Author in this article analysed the ‘Best Evidence Rule’ (Oral Testimony will not be
admitted to prove what is contained in a document, the document itself must be produced as
evidence), the reason for the rule, several exceptions to the rule. The author also gave a clear
interpretation of the word ‘collateral’. The author defined the word ‘collateral’ here as “relation
between document itself and the events which exist independent of it” but not the relation
between contents of the documents and the main issues of the case.

The author first differentiated ‘Best Evidence Rule’ to the other rules which permits the oral
evidence for facts of the documents. Then made a short and clear differentiations between oral
evidences which can be allowed and not allowed in case of contents. If a Prime facie case
cannot be made without those documents oral evidence cannot be allowed and if a prima facie
case can be made without reference to documents then oral evidence can be admissible. When
the cause of action or the defence interposed is found in the writing or based on it, or when it
is direct proof of a vital element of a substantive right, its production is necessary. But when
its office is to support or sustain other proof, or make it more intelligible or in any way add or
detract from the weight of other evidence or to prove directly other facts which are themselves
cumulative evidence, production of the documents can be substituted with oral evidence.

2
Thomas M. Mcdade, Best Evidence Rule - Oral Proof of Contents of Writings, 5 St. John's L. Rev. 229 (1931).

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 3. Admissibility of Oral Evidence3

The author in this article discussed specifically about the admissibility of oral evidence in
written contracts. He had manifested the decided preference for written submissions over
verbal representations. He had discussed about the common law rule of “quoties in verbis nulla
est ambiguitas, nulla expostio contra verba fienda est” which means When there is no
ambiguity in words, then no exposition contrary to the expressed words is to be made.

Oral evidence is generally inadmissible to add to, alter, or contradict a written contract. This is
because writing stands higher in the scale of evidence than the oral testimony. This rule also
had exception when the original contract was made in writing and subsequent changes
(Novation, etc) were made through oral agreement provided the subsequent contract was done
in the same place of the original.

Oral testimony in aid of document can also be permitted in cases where there is insufficient
written evidence. In this case, it can be proved by partial oral and partial written evidences. For
example, to prove additional facts in a works contract, oral testimony can be submitted along
with the original contract document.

Oral Evidence can also be used to present a mercantile custom prevailing the place of business.
But it will never prevail over the express provisions over the written documents. Oral evidence
is also admissible to show that the party used the word in the written contract to mean the word
as per the customary practice and not in its ordinary sense. Nothing will prevent a party to
contradict written contracts with oral evidences when there is mistake of fact or no consensus-
ad-idem while entering the contract.

4. Secondary Evidence4

The author in this article analysed about the secondary evidences and their admissibility. The
evidence which is reproduced from an original document or substituted for an original item is
called the Secondary evidence.

Generally, Original or primary evidence was preferred by court. Secondary Evidence was
“

avoided by the court generally. This approach of the court was called THE BEST EVIDENCE

3
C. G.; Cave Addison, Lewis W. Addison on Contracts: Being A Treatise on The Law of Contracts (7).
4
Akash Shah, Secondary Evidence, Legal Services India

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RULE. Even then, there are some exceptional circumstances where the court allows the parties
to give secondary evidence.

The court after hearing the arguments decides whether to accept the secondary evidence based
on the authenticity of the evidence. However, when a party questions whether an asserted
writing ever existed, or whether a writing, recording, or photograph is the original, the trier of
fact makes the ultimate determination. ”

5. The Supreme Court of India re-defines Admissibility of Electronic Evidence in

India5

The authors in this article made an attempt to analyse the changes made in law of evidence
with the advent of digitalisation of documents. They discussed about the amendments in
Evidence Act, I.P.C, and Bankers Book Evidence Act with the enactment of Information
Technology Act of 2000.

Although the primary evidence for the document is the document itself, it was realized that
there would be situations in which the primary evidence might not be available. Thus,
secondary evidence in the form of certified copies of the document, copies made by mechanical
processes and oral reports by someone who saw the document, was permitted under section 63
of the Evidence Law for purposes of proving the content of a document. Therefore, the
willingness to allow secondary evidence to some extent dilutes the principles of the hearsay
rule and is an attempt to reconcile the difficulties of ensuring the production of primary
documentary evidence when the original is not available.

Research Methodology:

Nature of the study: Critical, Analytical and Descriptive

Sources of study:

Primary sources: Bare Acts of Indian Evidence Act, 1872, Indian Penal Code, 1860 &
Code of Criminal Procedure, 1973 and the Judgements of various High Courts and Supreme
Court.

5
Tejas Karia, Akhil Anand & Bahaar Dhawan, The Supreme Court of India Re-Defines Admissibility of
Electronic Evidence In India, 12 Digital Evidence & Elec. Signature L. Rev. 33 (2015).

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Secondary sources:

(i) Ratanlal and Dhirajlal, Criminal Procedure Code

(ii) Sarkars Criminal Procedure code
(iii) Sarkars on law of evidence
(iv) Ratanlal and Dhirajlal on law of evidence
(v) Black’s Law Dictionary,

Mode of citation: Blue book 20th edition.

Scope of the study: The Authors study is confined only to the admissibility of oral
evidences as to contents of the document.

Significance of the study:

This topic deals with the relevancy of admissibility of oral evidence in case of contents of
written documents. Studying this topic is very important because there are many situations
were the original written document is destroyed, lost or not available to present due to
various reasons. Substituting them with oral evidences sometimes makes good and
sometimes weak evidence. This study will definitely help me to understand and expertise
in this regard.

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 2. BEST EVIDENCE RULE

The normal rule in law is that the contents of a document must be proved by primary evidence
which is the document itself in original. “Indeed the term 'best evidence' has been described as
a convenient short description of the rule as to proving the contents of a writing.”6 The Best
evidence Rule in Indian Evidence Act is contained in Sec.91 and 92.

“ “Section 91 is based on what is sometimes described as the "best evidence rule". The best
evidence about the contents of a document is the document itself and it is the production of the
document that is required by s. 91 in proof of its contents”7. In a sense, the rule enunciated by
s. 91 can be said to be an exclusive rule as it excludes the admission of oral evidence for proving
the contents of the document except in cases where secondary evidence is allowed to be led
under the relevant provisions of the Evidence Act. Section 92 excludes the evidence of oral
agreements and it applies to cases where the terms of contracts, grants or other dispositions of
property have been proved by the production of the relevant documents themselves under s.
91. in other words it is after the document has been produced to prove its terms under s. 91
that the provisions of s. 92 come into operation for the purpose of excluding evidence of any
oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting
from its terms. The application of this rule is limited to cases as between parties to the
instrument or their representatives in interest. There are six provisos to this section with which
we are not concerned in the present appeal. S. 91 and 92 actually effects supplementary to each
other. Section 91 would be frustrated without the aid of s. 92 and s. 92 would be inoperative
without the aid of s. 91. Since s. 92 excludes the admission of oral evidence for the purpose of
contradicting, varying, adding to or subtracting from the terms of the document properly proved
under s. 91, it may be said that it makes the proof of the document conclusive of its contents.
Like s. 91, s. 92 also can be said to be based on the best evidence rule. ”

The two sections, however, differ in some material particulars. Section 91 applies to all
documents, whether they purport to dispose of rights or not, whereas s. 92 applies to documents
which can be described as dispositive. Section 91 applies to documents which are both bilateral

6
Jones, Law of Evidence 286 (3rd ed. 1924)
7
Bai Hira Devi and Others v. Official Assignee of Bombay, AIR 1958 SC 448

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and unilateral, unlike s. 92 the application of which is confined only to bilateral documents.
Section 91 lays down the rule of universal application and is not confined to the executant or
executants of the documents. Section 92, on the other hand, applies only between the parties to
the instrument or their representatives in interest.

There is no doubt that s. 92 does not apply to strangers who are not bound or affected by the
terms of the document. Persons other than those who are parties to the document are not
precluded from giving extrinsic evidence to contradict, vary, add to or subtract from the terms
of the document. It is only where a question arises about the effect of the document as between
the parties or their representatives in interest that the rule enunciated by s. 92 about the
exclusion of oral agreement can be invoked. This position is made absolutely clear by the
provisions of s. 99 itself. Section 99 provides that “persons who are not parties to a document
or their representatives in interest may give evidence of any facts tending to show a
contemporaneous agreement varying the terms of the document.” Though it is only variation
which is specifically mentioned in s. 99, there can be no doubt that the third party's right to
lead evidence which is recognized by s. 99 would include, a right to lead evidence not only to
vary the terms of the document, but to contradict the said terms or to add to or subtract from
them.

3. ORAL TESTIMONY IN CASE OF CONTRACTUAL

DOCUMENTS

In common law, there is a rule of “quoties in verbis nulla est ambiguitas, nulla expostio contra
verba fienda est” which means When there is no ambiguity in words, then no exposition
contrary to the expressed words is to be made. It means that when the contractual document is
free from any ambiguity, no other evidence other than the document itself is admissible.

Oral evidence is generally inadmissible to add to, alter, or contradict a written contract. This is
because writing stands higher in the scale of evidence than the oral testimony. This rule also
had exception when the original contract was made in writing and subsequent changes
(Novation, etc) were made through oral agreement provided the subsequent contract was done
in the same place of the original.

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Oral testimony in aid of document can also be permitted in cases where there is insufficient
written evidence. In this case, it can be proved by partial oral and partial written evidences. For
example, to prove additional facts in a works contract, oral testimony can be submitted along
with the original contract document.

Oral Evidence can also be used to present a mercantile custom prevailing the place of business.
But it will never prevail over the express provisions over the written documents. Oral evidence
is also admissible to show that the party used the word in the written contract to mean the word
as per the customary practice and not in its ordinary sense (interpretation of language of the
contract). Nothing will prevent a party to contradict written contracts with oral evidences when
there is mistake of fact or no consensus-ad-idem while entering the contract.

Stranger to a contract can make any oral submission contradicting the terms of the contract if
he is eligible to present secondary evidence. But, party to a contract or his representative in-
interest can’t submit any oral submissions except when those submissions falls in any of the
six provisos of sec. 92.

4. DISTINCTION BETWEEN SEC. 91 AND SEC. 92

Section 91 deals with the exclusiveness of documentary evidence. It deals with the proof of the
matters mentioned in that Section. On the other hand, Section 92 deals with the conclusiveness
of such evidence. It deals with disproof of the matters mentioned in the Section. Section 91
makes inadmissible oral evidence of the terms of a contract or of a grant, or of any other
disposition of property which have been reduced to the form of a document. Section 92
provides that when the terms are proved by the document, no evidence of any oral agreement
or statement shall be admitted, as between the parties, to contradict or vary them. Section 92
has application when the terms of a contract, grant or other disposition of property, among
other things, have been proved in accordance with Section 91.

The distinction between these two Sections as well as Section 99 has been clearly brought out
by the Honourable Supreme Court in Bai Hira Devi V. Official Assignee of Bombay8 wherein
it is held that, “The final position, therefore, is that if the terms of any transfer reduced to
writing are in dispute between a stranger to a document and the party to it or his

8
Bai Hira Devi V. Official Assignee of Bombay, AIR 1958 SC 448

12
representative-in-interest. Section 92 does not prevent both the stranger to the document and
the party there to or his representative-in-interest, to lead evidence of oral agreement,
notwithstanding the fact that such evidence if believed may contradict, very, add to or subtract
from, its terms.” It has been further observed that “In fact, S. 91 and 92 really supplement each
other. It is because S. 91 by itself would not have excluded evidence of oral agreements which
may tend to vary the terms of the document, that S.92 has been enacted; and if S. 92 does not
apply to a case, there is no other Section in the Evidence Act which can be said to exclude
evidence of agreement set up”.

Section 92 excludes evidence of oral agreements and applies to cases where contracts, grants
or other attitudes of the property are proved by the production of relevant documents under
section 91; In other words, after the document has been produced to prove its provisions under
section 91, the provisions of section 92 shall come into force for the purpose of excluding the
evidence of any oral agreement or statement, contradictory, differentiated, with the intention
of adding, or removing thereon.

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 5. CASE ANALYSIS

1. Bai Hira Devi and Others v. Official Assignee of Bombay9

Topic: Admissibility of oral evidence for contradicting, varying, adding to or subtracting from
terms of a document.

Scope: Chapter VI (of the exclusion of oral by documentary evidence)

Provisions of law applied in this case: Sec 91, 92 and 99 of Indian Evidence Act, S. 55 of
presidency-towns insolvency act

Brief Facts of the Case:

A person named Daultram was adjudicated as insolvent on 21-8-1951. Before this, on 22-5-
1950 he transferred some of his properties is favour of his wife and threes ons by a gift deed.
After he becoming insolvent, his official assignee had filed a notice of motion to declare the
gift deed void. For this the appellants argument in the lower court was that it was actually not
a gift deed but supported by valuable consideration. The lower court allowed the appellant to
prove the consideration by oral evidence.

Preliminary Issues :

1. Whether the gift deed is supported by valuable consideration or not?

Judgement:

Trail Court: Trail Court held that the gift deed was actually out of natural love and affection
and not supported by valuable consideration. It granted the declaration to the Official assignee.

High Court: High court held that it was erroneous on the part of the lower court to accept oral
evidence to alter the terms of the document and dismissed the appeal granting special leave.

9
Bai Hira Devi and Others v. Official Assignee of Bombay, AIR 1958 SC 448

14
Ground of appeal: Whether the court can admit oral evidence to prove that the gift deed was
coupled with valuable consideration?

Judgement and order: Hon’ble Supreme Court allowed the appeal. It held that sec. 92 didn’t
attract present case and the appellant is entitle to give oral evidence as to support the gift deed
by valuable consideration and send back the appeal to dispose on merits.

Ratio Decidendi:

The central issue in this case is oral evidence is admissible or not. For ascertaining this, court
went into s. 92 of the IEA and analysed whether Official assignee comes in the term ‘parties
and their representative in interests’ for applying this sec. The court expressed the view that “it
would be relevant to remember that, in cases governed by the Presidency-towns Insolvency
Act, the practice in Calcutta and Bombay consistently allows a creditor who has proved his
debt to file a petition to set aside the transfer under s. 55 of Presidency-Towns Insolvency Act
if he shows that the official assignee, on being tendered a reasonable indemnity has
unreasonably refused to make an application. Similarly, under s. 54-A of the Provincial
Insolvency Act, a creditor himself can make the application if the receiver refuses to take any
action. Now, if an application is made by a creditor for setting aside a voluntary transfer
effected by the insolvent, there can be no doubt that the creditor is not the representative-
ininterest of the insolvent and the creditor would obviously not be affected by the provisions of
s. 92 of the Indian Evidence Act. It would really be anomalous if s. 92 were to apply to
proceedings instituted by the official assignee under s. 55 though the said section cannot and
would not apply to similar proceedings instituted by a creditor. Having regard to the object
with which s. 55 has been enacted, the nature of the proceedings taken under it, and the nature
and effect of the final order which is contemplated under it, it is clear that, like the creditor
who may apply, the official assignee also cannot be said to be the representative-ininterest of
the insolvent in these proceedings”

Another argument which had rose in this case was whether s. 99 prohibits the appellants from
giving oral evidence or not. The Supreme Courts interpreted sec. 99 and opined that “We do
not read s. 99 as laying down any such prohibition by necessary implication. As a matter of
fact, from the terms of s. 92 itself, it is clear that strangers to the document are outside the
scope of s. 92 ; but s. 99 has presumably been enacted to clarify the same position. It would
be unreasonable, we think, to hold that s. 99 was intended not only to clarify the position with
regard to the strangers to the document, but also to lay down a rule of exclusion of oral

15
evidence by implication in respect of the parties to the document or their representatives in
interest.”

Observations

The respondent had completely based his arguments on s. 92 and s. 99, but the court didn’t
apply them in this case. The court applied ‘doctrine of mutuality’ the related it to the statement.
By the observations of court in this case, we can take that

i) When between parties to document oral evidence is never admissible

ii) When it is between strangers or strangers and party, in both the cases oral evidence
is permissible by both the parties.

2. R. Janakiraman v. State of Tamil Nadu, Through CBI, SPE, Madras10

Topic: Whether an Oral Evidence can be admissible to make a document void

Scope: Chapter VI (of the excusion of oral by documentary evidence)

Provisions of law applied in this case: Prevention of corruption act, S. 91 and S.92 of the
Indian Evidence Act

Cases Cited:

1. Krishnanand Agnihotri vs State of MP11

2. Tyagaraja Mudaliyar vs. Vedathani12
3. Krishna Bai vs. Appasaheb13
4. Gangabai vs. Chhabubai14
5. Ishwar Dass Jain vs. Sohan Lal15
6. Parvinder Singh vs. Renu Gautam16
7. Haricharan vs. State of Bihar17
8. Dagdu & Ors. Vs. State of Maharastra18

10
R. Janakiraman v. State of Tamil Nadu, Through CBI, SPE,, AIR 2006 SC 1106
11
Krishnanand Agnihotri vs State of MP, AIR 1977 SC 796
12
Tyagaraja Mudaliyar vs. Vedathani, AIR 1939 PC 70
13
Krishna Bai vs. Appasaheb, AIR 1979 SC 1880
14
Gangabai vs. Chhabubai, 1982 (1) SCC 4
15
Ishwar Dass Jain vs. Sohan Lal, 2000 (1) SCC 434
16
Parvinder Singh vs. Renu Gautam, 2004 (4) SCC 794
17
Haricharan vs. State of Bihar, 1964 (6) SCR 623
18
Dagdu & Ors. Vs. State of Maharastra, 1977 (3) SCC 68

16
 9. State of Andhra Pradesh vs. Thadi Narayana19
10. C.S.D. Swami v. The State20

Brief Facts:

The appellant is working as Assistant Engineer in Southern Railway. It is alleged that he had
made assets disproportionate to his income by way of unlawful means. Regarding this,
authority raided his house and found cash of Rs. 2,94,615 in biscuit tins. Authorities alleged
that he his total income in check period is 6,69,852/- which is should be 2,06,301.18/-. value
of the assets acquired by the appellant beyond his known sources of income was found to be
Rs.4,63,551.60. The appellant shown various other incomes like TA, Interest on FD, various
loans out of which a single loan of Rs. 2,50,000 was a major one. After adjusting all these
amounts the excess is below 10% of his income which is permissible. The persons whom he
stated as lenders for the 2,50,000 loan had rejected that they gave these loans. They submitted
that appellants brothers came to them and asked to make an ‘adjustment entry’ without actually
giving loan.

Preliminary Issues: Whether appellant holds assets in excess of his income or not?

Judgement:

Trail Court: Held that he holds assets to an extent of Rs.3,05,985 in excess of his income and
it didn’t Considered the 2,50,000 worth loan.

High Court: On an appeal made by the appellant, High Court confirmed the conviction and in
fact increased the amount of unaccounted assets to 4,13,802.

Ground of appeal: Whether the alleged loan of Rs. 2,50,000 is genuine or not

Judgement and Order: The Supreme Court dismissed the petition by stating that the loan was
just an “adjustment entry” made to cover the unaccounted assets.

Ratio Decidendi:

The evidence of the lenders is clear categorical that Rs. 2,50,000 was not advanced to appellant
and the entries were created only to help the appellant. The appellant’s contention that such
evidence is contrary to the sec.92 is not accepted by the court and it stated that “The rule
contained in s. 92 will apply only to the parties to the instrument or their successorsin-interest.

19
State of Andhra Pradesh vs. Thadi Narayana, 1962 (2) SCR 904
20
10. C.S.D. Swami v. The State, AIR 1960 SC 7

17
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.”

The court also stated that“The bar under s. 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 terms of a contract, and not to disprove the contract itself, or to prove that the document
was not intended to be acted upon and that intention was totally different”

Observations:

In this case the court didn’t apply apply sec 92 by stating two conditions

1. Sec. 92 wont apply to prosecution in a criminal proceedings

2. Also, It won’t apply to parties when they are disproving the contract itself

3. Vimal Chand Ghevarchand Jain & Ors. v Ramakanth Eknath Jajoo21

Topic: Admissibility of oral evidence as to nature of execution of document

Scope: Chapter VI (of the exclusion o oral by documentary evidence)

Provisions of law: Sec 91 and Sec 92 of Indian Evidence Act

Cases cited:

1. Kamakshi Builders v. Ambedkar Educational Society & Ors.22

2. Bishwanath Prasad Singh v. Rajendra Prasad& Anr.23
3. Ranganayakamma & Anr. v. K.S. Prakash (D) By Lrs. & Ors.24
4. Ishwar Dass Jain v. Sohan Lal25
5. Roop Kumar v. Mohan Thedani26

21
Vimal Chand Ghevarchand Jain & Ors. v Ramakanth Eknath Jajoo, AIR 2009 SCC (Supp) 1550
22
Kamakshi Builders v. Ambedkar Educational Society & Ors., AIR 2007 SC 2191
23
Bishwanath Prasad Singh v. Rajendra Prasad& Anr., (2006) 4 SCC 432
24
Ranganayakamma & Anr. v. K.S. Prakash (D) By Lrs. & Ors., 2008 (9) SCALE 144
25
Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434
26
Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595

18
 6. R. Janakiraman Vs. State Rep. by Inspector of Police, CBI, SPE, Madras27
7. State Bank of India & Anr. Vs. Mula Sahakari Sakhar Karkhana Ltd.28

Brief Facts: In this case respondent’s father executed a sale deed of land in favour of Vimal
Chand Ghevar Chand & Co. The deed was duly registered and respondent was the witness.
Subsequently, the firm gave possession of the property to respondent’s father for a license fee
of Rs. 1,257.50. The Firm was subsequently dissolved and the appellants became the owner of
the property. Appellant aggrieved by the action of respondent as the cheque gave by him for
the payment of licence fee has been dishonoured. Appellant filed a suit against respondent for
possession of the property and compensation. Defendant contended that they were never in a
Licenser-Licensee Relationship. The very nature of sale deed was for the purpose of collateral
to a money lending transaction which was settled years ago.

Preliminary Issues: Whether the executed sale deed was intended for sale purpose or for any
other purpose

Judgement:

Trail Court: It admitted the oral submissions of the respondent and dismissed the suit stating
that the circumstantial evidences show that the sale deed was executed only by way of a money
lending transaction.

First Appellate Court: It set aside the orders of Trail court and held that the appellant is entitled
for the amount paid with interest of 6% per annum. It didn’t considered the contention of
appellant-injunction and monthly licence fee.

High Court: High Court dismissed the appellants second appeal.

Grounds of appeal: Whether the lower courts failed to appreciate the ‘best evidence rule’
contained in Sec. 91 and Sec.92.

Judgement and Order: The Supreme Court allowed by statibg that the appellant suit should
be decreed

Ratio Decidendi:

The Supreme court expressed that “Indisputably when a true character of a document is
questioned, extrinsic evidence by way of oral evidence is admissible.” It rejected the plea of

27
R. Janakiraman Vs. State Rep. by Inspector of Police, CBI, SPE, Madras, (2006) 1 SCC 697
28
State Bank of India & Anr. Vs. Mula Sahakari Sakhar Karkhana Ltd., (2006) 6 SCC 293

19
the appellant that the lower courts have committed a serious error by failing to adhere with the
‘best evidence rule’ contained in Sec. 91 and 92. It held that “it was open to the respondent to
adduce oral evidence in regard to the nature of the document. But, in our opinion, he did not
discharge the burden of proof in respect thereof which was on him. The document in question
was not only a registered one but also the title deeds in respect of the properties have also been
handed over”

But Court also observed that as the sale deed is duly registered and respondent being witness
to it, huge onus to prove lies on respondent to alter the nature of the document. “A heavy burden
of proof lay upon the defendant to show that the transaction was a sham one. It was not a case
where the parties did not intend to enter into any transaction at all. Admittedly, a transaction
had taken place. Only the nature of transaction was in issue. A distinction must be borne in
mind in regard to the nominal nature of a transaction which is no transaction in the eye of law
at all and the nature and character of a transaction as reflected in a deed of conveyance. The
construction of the deed clearly shows that it was a deed of sale.”

Observations:

In this case the oral evidence of the defendant was not actually to alter the terms of the sale
deed, but it was about the very nature of transaction. Proviso 3 to S. 92 states that oral evidence
can be admitted to state any conditional precedent to the contract. So, oral evidence given by
the defendant can be admitted without any doubt.

The supreme court in this case held that first appellate court had first came to the conclusion
and then started assigned reasons to it. It is completely failed in appreciating the evidences
properly. It had also wrongfully placed burden of proof on the appellant and stated that it was
a sham transaction without any cognizant evidence.

4. Coonrod v. Madden29.

Topic: Whether court can admit oral evidence for a document which is collateral to the central
issue of the case.

Scope: Chapter VI (of the exclusion of oral by documentary evidence)

29
Coonrod v. Madden, 126 Ind., 197

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Provision of Law: Sec. 91 and 92 of Indian Evidence Act

Cases cited:

1. Smith v. Reed30
2. Mumford v. Thomas31
3. Mansonv. Blair32
4. Anderson, etc., Co. v. Applegate33
5. Frazee v. State34
6. McMakin v. Weston35

Brief Facts: In this case Madden filed a suit against Conrod for payment of default of a
promissory note. Conrod argued that he had already paid the amount and shown the evidence
about the cheque paid to madden. Madden submitted orally that the cheque submitted was for
redeeming another promissory note which was already handed over to conrod.

Preliminary Issue:

Whether the cheque was issued for the purpose promissory note in the case or for any other
purpose

Judgement: Circuit court held that the cheque was received for the purpose of another
promissory note and conrod had defaulted in payment of this note.

Ground of appeal: Whether the circuit court is correct in admitting the oral evidence given by
Madden

Judgement and Order: Supreme Court of Indiana held that the court is justified in admitting
oral evidence in admitting oral evidence for proving another promissory note.

Ratio Decidendi:

The supreme court affirmed the circuit courts judgement by stating the evidence regarding
another promissory note is collateral to the issue and not the central issue. It held that “The

30
Smith v. Reed, 7 Ind. 242
31
Mumford v. Thomas, 10 Ind. 167
32
Mansonv. Blair, 15 Ind. 242;
33
Anderson, etc., Co. v. Applegate, 13 Ind. 339
34
Frazee v. State, 58 Ind. 8
35
McMakin v. Weston, 64 Ind. 270

21
Anderson, etc., Co. v. Applegate the instrument is merely collateral to the issue, and where the
fact to be proved relates to a subject distinct from the writing.”

Even if the document is admitted, the issue regarding for which promissory note does the
cheque applied remains unanswered until secondary evidence is collected. “In this case had
the note upon which the appellee claimed the check read in evidence had been applied, been
produced in court, the parties would have been as far from the real controversy between them
as they were before its production, namely, the question as to whether the check was applied
on that note or the note in suit. For this reason, we think the case falls within the exception to
the general rule above stated.”

Observations:

This case is one of those few cases where oral evidence gets more weightage than the
documentary evidence. Because, In this question the promissory note is not in question.
Whether the cheque is intended to redeem the promissory note or not is the question. So, In
this case even submitted documentary evidence wouldn’t be served any purpose.

5. Daniel v. Smith36

Topic: Admission of Oral evidence for proving contents of the document

Scope: Chapter VI (of exclusion of oral by documentary evidence)

Provision of Law: Sec.22, Sec. 91, Sec. 92

Cases cited:

1. Halpin v. Phenix Insurance Company37

2. Newell v. Doty38
3. Ward v. Craig39
4. Grover v. Morris40

36
Daniel v. Smith, 130 N.Y. 696
37
Halpin v. Phenix Insurance Company, 118 N. Y. 165
38
Newell v. Doty, 33 N. Y. 83
39
Ward v. Craig, 87 id. 550
40
Grover v. Morris, 73 N. Y. 479

22
 5. Chrysler v. Renois41
6. Bowen v. Nat. Banks42
7. M'Fadden v. Kingsbury43
8. Jackson v. Root44

Brief Facts: Plaintiff in this case had operated the saw-mill which was owned by defendant.
The plaintiff claimed that the defendant was indebted to him for goods sold, services rendered
and money loaned as they have agreed to share profits one half each other.

Preliminary Issue: Whether the plaintiff is entitled to recover from the defendant.

Judgement: The lower court found the case in favour of the plaintiff based on his oral
submissions.

Ground of appeal: Whether the oral evidence given by the plaintiff is admissible or not

Judgement and Order: Court of Appeals, New York held that the oral submissions made by
plaintiff in the lower court are admissible and affirmed the judgement.

Ratio Decidendi:

The Court of appeal expressed that the oral evidence is admissible as no motion against to it
was drawn while trail and moreover the defendant attempted to controvert it. Court also
expressed that “In view, therefore, of the temporary nature of the order, the length of time since
its use, the fact that it had long before accomplished its purpose and its collateral character,
parol evidence characterizing the writing and stating the amount for which it was drawn was
admissible”

Observations:

In this case the court affirmed the admission of oral evidence as the defendant didn’t objected
while submission and the nature being collateral and the lapse of time being 12 yrs.

41
Chrysler v. Renois, 43 id. 212
42
Bowen v. Nat. Banks, 11 Hun, 226
43
M'Fadden v. Kingsbury, 11 Wend. 668
44
Jackson v. Root, 18 Johns. 60

23
 CONCLUSION

Although, the general rule (Best Evidence Rule) says that oral evidence can’t be admitted in
lieu of documentary evidence, we can find many exceptions to it in various different
circumstances. Sometimes, the oral evidence provides greater evidentiary value than the
document itself. It is actually dependent on the facts and circumstances of each case.

When the suit is between strangers to a contract oral evidence can be admissible and the sec.
92 doesn’t apply. Sec 92 doesn’t apply to cases where one party is stranger and one party is
party to the contract or his representative in-interest because if it is applied to one party it
violates the doctrine of mutuality. We can find this clearly in Supreme Court’s findings in Bai
Hira Devi and Others v. Official Assignee of Bombay45

Whether the document is collateral to the case or not matters while admitting the oral evidence.
This is because in many cases the document is not the foundation to the claim, it is just a
collateral evidence which created circumstances for the central evidence. These evidences can
be easily admissible by court through oral testimony.

Sometimes the documentary evidence didn’t make the purpose of it in the court. In those
circumstances oral testimony is required and it is given higher evidentiary value than the
documentary evidence. We can find this clearly in Indiana’s Supreme Court Judgement of
Coonrod v. Madden46.

45
Bai Hira Devi and Others v. Official Assignee of Bombays, AIR 1958 SC 448
46
Coonrod v. Madden, 126 Ind., 197.

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 BIBLOGRAPHY

Law of Evidence – Rathanlal and Dheerajlal, 2017

Law of Evidence – Sarkaar, 2016

Websources

1. Hein Online
2. Jstor
3. Manupatra
4. Westlaw

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