Exclusion of Oral Evidence by

Documentary Evidence
By
 Subodh Asthana
 -
July 10, 2019
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This article has been written by  Pankhuri Anand, a student of Banasthali
Vidyapith, Rajasthan. This article discusses the provisions of the Indian
 Evidence Act which deals with the exclusion of oral evidence by documentary
evidence.

Table of Contents
 Synopsis
 Oral and Documentary Evidence
o Oral Evidence
o Documentary Evidence
o Difference between Oral Evidence and Documentary Evidence
 Exclusion of oral evidence by documentary evidence
o Evidence reduced in the form of document 
 The principle behind section 91
 Rules to be followed for the exclusion of oral evidence by documentary
evidence
 Any matter required to be in writing by law
 Exceptions to Section 91
 Exception 1: Appointment of a public officer by the way of writing
 Exception 2: When probate has been obtained on the basis of a will
 Explanations under Section 91
o Evidence of oral agreement excluded
 Proviso(1): The facts which invalidate the document
 Proviso(2): Separate oral arguments
 Proviso (3): Separate Oral Argument as a condition precedent
 Proviso (4): Distinct oral agreement made subsequently to renew or
modify the contract
 Proviso (5): Any usage or customs by which incidents not mentioned in
any contract are usually annexed to contract
 Proviso(6): Extrinsic evidence of surrounding circumstances
o Inter-relation between section 91 and 92
o Latent and Patent Ambiguity
 Test of difference
 The distinction between Patent Ambiguity and Latent Ambiguity
 Extrinsic Evidence to explain Ambiguity in a document  
o When extrinsic evidence cannot be given 
 Section 94: In the application of document to existing facts, the
application against it to be excluded
o When extrinsic evidence can be given 
 Section 95: Evidence allowed to be given when the document is plain in
itself
 Section 96: Evidence allowed when the application of the language which
is meant to apply on only one, applies to several persons
 Section 97: When on the application of the language of two or more facts
neither of them applies correctly, then evidence to be admitted
 Section 98: Evidence given to show the meaning of illegible characters
o Who may give evidence of agreement varying terms of the document 
o Provisions of Indian Succession Acts related to wills to be excluded 
 Conclusion
 Reference
Synopsis

Chapter VI of the Indian Evidence Act, 1872 deals with the provisions of

exclusion of oral evidence by documentary evidence.  This whole topic is
covered under section 91 to section 100 of the Act. 

Oral and Documentary Evidence

Oral Evidence
The evidence which is confined to the words spoken by mouth is the oral
evidence. If oral evidence is worthy of credit, it is sufficient to prove a fact or a
title without any documentary evidence. The provisions related to oral evidence
are given under Chapter IV of the Indian Evidence Act, 1872. Oral evidence
of a witness can be considered doubtful if it is in contradiction with the previous
statement.
 Click Here

Documentary Evidence
The provisions related to the documentary evidence are provided
under Chapter-V  of the  Indian Evidence Act, 1872. Section 3 of the Act
defines the term “document”. Any matter which is expressed or described on
any substance by means of letters, figures or remarks or by more than one
means and which can be used for recording the matter is considered as a
“document”.

Generally, the most common document which we have to deal with is described
by letters. The documents are written in any language of communication such
as Hindi, English, Urdu etc.
The documents produced before the court as evidence are the documentary
evidence and there must primary or secondary evidence to prove the contents
of the documents. Primary evidence has been defined under section 62  of the
Indian Evidence Act and it means the original document when itself produced
before the court for the inspection.

The secondary evidence has been defined under section 63 of the Act. The
secondary evidence is the certified copy of the evidence or copy of original
documents. Secondary evidence also includes the oral accounts given by a
person about the contents of the document who has himself seen it.

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Difference between Oral Evidence and

Documentary Evidence
 

S.No
Oral Evidence  Documentary Evidence
.

Oral evidence means the statements When a document is produced before

1. which are given by a witness before the court then such document is
the court. considered as documentary evidence.
 It is the statement of a witness in It is a statement submitted through the
2.
oral form. documents.

The documents are composed of

In the oral evidence are stated
words, signs, letters, figures and
3. through voice, speech or symbols for
remarks and submitted before the
its recording before the court.
court.

The provisions related to the

The oral evidence is discussed
documentary evidence has been
4. under section 59 and section 60 of
discussed under section 61 to section
the Indian Evidence Act.
66 of the Indian Evidence Act.

The oral evidence is required to be

The contents of the documentary
direct and it becomes doubtful if the
5. evidence need to be supported by
statement contradicts with the
primary or secondary evidence.
previous statement.

Exclusion of oral evidence by documentary

evidence

Evidence reduced in the form of document 

Section 91 of the Indian Evidence Act, 1872  lays down the provision that
when evidence related to contracts, grants and other depositions of the
property is reduced as a document, then no evidence is required to be given for
proof of those matters except the document itself. In the cases where the
secondary evidence is admissible then such secondary evidence is admissible.
There are certain kinds of contracts, grants and other depositions which can be
created orally and they do not require any document.

Illustration

A sells his Dog for Rs. 100 to B: In this case no written deed is compulsory.

B wants to mortgage the dog for Rs. 100 to C: No written deed is mandatory.

B pays Rs. 100 to C and takes back the possession of the dog.

All of the above-mentioned transaction will be valid even without a written

deed.

But, there are many documents and matters of the court which are considered
mandatory by the law to be in writing and registered e.g., judgement and
decrees, the deposition of witnesses, when an accused person is examined etc.

Orally, many contracts, grants and other depositions can be affected but
reducing the terms of the contract on which the party agrees in a document is
considered to be the best evidence for the terms of that contract. When reduced
to documents, it acts as the best evidence. Even if the document is lost or in
adversary possession secondary evidence as described under section 65 can
be produced before the court.

The principle behind section 91

Section 91 of the Evidence Act, lays down the provision for the situation when
the terms of the contract, grant or depositions of properties have been reduced
in the document even though it is required under law to be reduced into the
document. In this condition, if the proof is required, the document itself is
required to be produced or if the secondary evidence is admissible then the
secondary evidence can be used.
Rules to be followed for the exclusion of oral evidence by
documentary evidence

The admission of the oral evidence for proving the contents of a document is
excluded under section 91 except where the secondary evidence is considered
admissible. The oral evidence is also excluded under section 92 for contradicting
the terms of a contract where the deed is proved. So, the rules laid down by
these sections can be considered as an exclusive rule as held in the case
of Raja Ram Jaiswal v. Ganesh Prasad.

According to the rule laid down under section 91 of the Indian Evidence Act, no
evidence can be produced before the court to prove the statement when the
terms of a contract are reduced in writing except the document itself and under
certain circumstances, the secondary evidence.

The oral evidence excluded under section 91 in case of a deed only when the
deed contains the terms of a contract or some property is disposed of through it
or the law binds the contents of the document to be in writing. As held in the
case of Tahuri Shal v. Jhunjhunwala,  a law does not make the adoption to
be in writing mandatory. The deed of adoption is just a record of the fact
adoption has taken place. No rights are created by it. It is no more than a piece
of evidence and when a party fails to produce it, the law does not bar him from
producing oral evidence.

Any matter required to be in writing by law

When a particular matter is required to be in writing by law then it cannot be

substituted by oral evidence. Some of the examples of the documents that are
required to be in writing by law are judgements, an examination of witnesses in
civil as well as criminal cases, deeds of conveyance of land, deed for partition, a
will and many more.

Exceptions to Section 91
Exception 1: Appointment of a public officer by the way of writing

As per the general rule, to prove the content of a writing, the writing itself is
required to be produced before the court and in case of its absence, secondary
evidence may be given. But, there is an exception to this rule. When a public
officer is appointed and the appointment is required to be made in writing and if
it is shown before the court that some person has acted as the officer by whom
the person has been appointed, then the writing by which he has been
appointed needs not to be proved.

Illustration

A question arises whether A is a judge of the High Court, then the warrant of
appointment is not required to be proved. The fact that he is working as a judge
of the High Court will be proved.

The fact that a person is working in the due capacity of his office is also
evidence of that person’s appointment in the office.

Exception 2: When probate has been obtained on the basis of a will

Another exception of the general rule of the writing to be produced itself is that
when on the basis of will probate has been obtained and if later, the question
arises on the existence of that will, the original will is not required to be
produced before the court. 

This exception requires to prove the contents of the will by which the probate is
granted. The term “probate” stands for the copy of a certificate with the seal of
the court granting administration to the estate of the testator.

The probate copy of the will is secondary evidence of the contents of the
original will in a strict sense but it is ranked as primary evidence
Explanations under Section 91

The explanations of section 91 state that it is not necessary for a written

document to be comprised in a single document. A contract or grant which is
executed can be in a single document or can be comprised of several
documents. Section 91 applies in both conditions i.e., whether the contracts are
comprised of a single document or in several documents.

Another explanation laid down under section 91 is that when there is more than
one original document, then only one of them is required to be presented before
the court.

Evidence of oral agreement excluded

Section 92 of the Indian Evidence Act lays down the provision that when as
laid down under section 91 the documents which are required to be in writing
such as the terms of the contract, grant or other deposition of property or any
other matter required by the law in writing then the court cannot allow being
lead by oral evidence to the party contract or legal representative for the
purpose of contradicting, varying, addition or subtraction from the contract.

Section 92 comes into operation when the documents have been submitted
under section 91 for the purpose of contradicting, varying, addition or any
modification from its terms.

Section 92 of the Act clarifies itself that only such oral arguments are excluded
which contradicts the terms of contract, deposition or any other matter required
to be in writing. If such a document is not a contract, grant or deposition of
property, then the oral evidence can be included to vary its content.

Section 92 is applicable only to the parties to the instrument and not to the
person who is a stranger to the instrument. In the case of Ram Janaki Raman
v. State,  it was held by the court that the bar laid down by section 92 of the
Act was not applicable under the Criminal proceeding.

Proviso(1): The facts which invalidate the document

If a fact will invalidate the contact then no man is debarred from proving that
fact. According to the laws of contract, any contract which is created by fraud or
undue influence, it is not enforceable and considered invalid. So, such facts are
easy to prove in the circumstances when the contract has been reduced into
written form.

Proviso(2): Separate oral arguments

The term separate oral arguments in this context refer to the oral agreements
made before entering into the documents. The contemporaneous or prior oral
agreements are referred to under Proviso (2) of section 92.  

When there is a prior oral agreement on a matter about which the document is
silent, then it can be proved only when such terms of oral agreements are not in
contradiction with the terms of the contract.

So, as held in the case of Bal Ram v. Ramesh Chandra,  the requirements of
this proviso are:

1. On the matter on which the document is silent, a separate oral agreement

should be related to it.
2. Such oral agreement should not be inconsistent with the terms of the
document.

Proviso (3): Separate Oral Argument as a condition precedent

The situation when an oral agreement is to the effect that it will not be effective
or will not be enforced unless a condition precedent is fulfilled or unless a
certain event takes place, the oral agreements are admissible in this case to
show that as such condition has not been performed, the contract was not
enforceable.

Proviso (4): Distinct oral agreement made subsequently to

renew or modify the contract

To prove any subsequent oral agreement leading to alteration of terms of all the
written contracts except to the contracts which are required to be in writing by
law evidence can be given.

When a transaction is reduced to writing which is not required by law to be in

writing but the agreement is made for the convenience of parties then an oral
agreement made subsequently to modify it is admissible.

Proviso (5): Any usage or customs by which incidents not

mentioned in any contract are usually annexed to contract

Parol evidence of usage and customs are always admissible. When the object is
to make intelligible before the court about the meaning in which the parties
have used a parol evidence may be given to prove any local custom of the
general application, so that it may be applied to the subject matter of the
contract and bind the parties to the written contract unless such usage or
custom is inconsistent with the writing.

Proviso(6): Extrinsic evidence of surrounding circumstances

Whenever a document is required to be proved before the court, its object is to

endeavour and ascertain its real meaning and the extrinsic evidence are
necessary for this purpose. The object of admissibility of the evidence of the
surrounding circumstances is to ascertain the real evidence of the parties but
from the language of the document, the intentions of parties must be gathered
as explained by extrinsic evidence.
Inter-relation between section 91 and 92
Section 91 and 92 are supplementary to each other. Both sections support and
complete each other. When the terms of the contract, deposition of a property
or any matter required to be in writing under the law if proved by the document
then the oral evidence is not required to contradict it.

After a document has been produced to prove its terms under section 91, then
the provisions of section 92 play for excluding evidence of any oral agreement
or statement for the purpose of contradicting, varying, addition or subtraction
from its terms.

Even though the two sections are supplementary to each other, both sections
differ about some of the opinions in particular. Section 91 deals with the
documents whether or not they are having the purpose to dispose off the rights
or not but section 92 is applicable to the documents which are dispositive in
nature.

Section 91 applies to the document which is both bilateral and unilateral

documents but section 92 applies only to the document which is of bilateral
nature.

Latent and Patent Ambiguity

The rule about admission or exclusion of extrinsic evidence has been laid down
under section 93 to 98 of the Indian Evidence Act. Such exclusion or
admission of extrinsic evidence is in connection with the facts contained in a
document which either a contract or not.

The ambiguity in the language of a document can be divided into two

categories:
 1. Patent ambiguity
2. Latent ambiguity

A patent ambiguity is when the language of the document or deed is uncertain.

The latent ambiguity is an ambiguity which is not present in the deed but it
arises due to extrinsic factors.

Test of difference

The test to find the difference that whether the ambiguity is a patent ambiguity
or a latent ambiguity is to put the document in the hands of an ordinary
intelligent educated person.

1. If on reading the document the ambiguity can be detected and no definite

meaning can be understood then such ambiguity is patent ambiguity.
2. If on perusal of document no ambiguity can be found by him and the
meaning is definite but that document is applied with the instrument of
facts, the ambiguity arises and its meaning becomes indefinite, then the
ambiguity is the latent ambiguity.

The distinction between Patent Ambiguity and Latent Ambiguity

S.No
Patent Ambiguity Latent Ambiguity
.

When the language of the

When the language of a document is
document is so uncertain and
certain and meaningful but the document
1. effective that no meaning can be
makes no relevance in the present
granted to the document then it is
circumstance then it is latent ambiguity.
called as Patent Ambiguity.
 The patent ambiguity is personal in The latent ambiguity is of objective
2. nature and it is related to the nature and it is related to the subject
person executing the document. matter and object of the document.

Oral evidence is not allowed for the To remove latent ambiguity, oral
3.
removal of patent ambiguity. evidence is allowed.

The rule on which the patent
ambiguity is based is that the
4.
patent ambiguity makes the
document useless.
Giving oral evidence in case of latent
ambiguity is based on the principle the
latent ambiguity does not make a
document useless. 

Latent ambiguity is not evident

A patent ambiguity is on the face
from prima facie inspection of the
of the document and is evident
5. document but it becomes apparent when
from inspection of the document
the language of a document is applied to
itself.
existing circumstances

Extrinsic Evidence to explain Ambiguity in a

document 
Indian Evidence Act lays down the provision for including extrinsic evidence in
order to explain ambiguity in a document.

When extrinsic evidence cannot be given 

Section 93: Exclusion of evidence while explaining or amendment of an
ambiguous document
Section 93 of the Indian Evidence Act, deals with the patent ambiguity and
no oral evidence is given to remove the patent ambiguity.

According to section 93 when the language of the document is ambiguous or

defective on its face, the evidence which can show its meaning or supply its
effects may not be given.

Illustration

An agreement is made between A and B that A will sell his crops for Rs. 1000 or
2000. The evidence cannot be given that which price was to be given.

In the case of Keshav Lal v. Lal Bhai T. Mills Ltd.,  it was held by the
Supreme Court that it would not be open for the parties or the court to remove
the ambiguity or vagueness by relying upon the extrinsic evidence.

Section 94: In the application of document to existing facts, the

application against it to be excluded

According to section 94, when the language in the document is simple and
plain itself and it applies accurately to the existing facts, the evidence to show
that it was not meant to apply to such facts may not be given.

When there is neither a patent ambiguity nor a latent ambiguity then the
evidence cannot be given to contradict this.

In the case of General Court Marshal v. Col. Anil Tej Singh Dhaliwal it was
held by the Supreme Court that section 94 applies only when the execution of
the document is admitted before the court and there are no vitiating
circumstances against it.
 Image Source: https://bit.ly/30mzVyI

When extrinsic evidence can be given 

Section 95: Evidence allowed to be given when the document is

plain in itself

Section 95 of the Indian Evidence Act deals with latent ambiguity and oral
evidence can be given for removing latent ambiguity. When the language which
has been used in the document is simple and plain but it is not in the meaning
to existing facts due to the mistakes in the descriptive evidence and such
mistake can be shown that it was used in a peculiar sense.

Illustration

A sold his house to B stating in the deed as “my house in Lucknow”.

But, A has no house in Lucknow but he has a house in Kanpur in which B is

living since the deed was executed. Then the evidence can be used to prove the
fact the deed was related to the house in Kanpur.

Section 96: Evidence allowed when the application of the

language which is meant to apply on only one, applies to
several persons
When the language of the facts is such that, which is meant to apply on only
one person applies on several persons, then the evidence may be given
under section 96 of the Indian Evidence Act to clarify that which of those
persons or things, that fact is intended to apply on.

Illustration

A  agrees to sell his white cow to B for Rs. 2000 and in the deed he has
mentioned “my white cow”. A has two white cows. Evidence can be given to
prove that which white cow he meant in that deed.

Section 97: When on the application of the language of two or

more facts neither of them applies correctly, then evidence to
be admitted

According to section 97 of the Indian Evidence Act, when the language

used in a fact applies to one set existing fact partly and partly to another set of
existing fact, but if applied as a whole, it does not apply to either correctly then
the evidence can be presented before the court to clarify that which of the facts
was actually intended.

Illustration

X sells his land to Y stating “My land at A in the occupation of B”. X had land at
A but it is not in occupation of B and X has land which is in the occupation of B
but it is not at A. Then X can present evidence before the court that which land
he actually wants to sell.

Section 98: Evidence given to show the meaning of illegible

characters

To show the meaning of illegible characters or characters which are not

commonly intelligible character such as characters of foreign, obsolete,
technical, local or provincial expressions of words or abbreviations which is used
in a peculiar sense, evidence can be presented before the court under section
98 of the Indian Evidence Act.

Illustration

A sells his artwork to B stating “all my mods”. Here, what A meant by the term
“mods” can be clarified by the way of admission of evidence.

Who may give evidence of agreement varying

terms of the document 
Under section 99 of the Indian Evidence Act, those persons also can give
evidence who are not parties to a document or representative-in-interest
regarding any fact which shows a contemporaneous agreement varying the
terms of the document.

As section 92 of the Act excludes the party to the contract from producing the
document but it does not exclude those who are the parties to contract. So,
under this section i.e., section 99 the same provision is being repeated.

In the case of Bai Hira Devi v. Official Assignee of Bombay section 92 deals

only with the matter related to contracts, grants and other depositions of the
property but section 99 deals with all types of document, whether it is a
contract or not. Section 99 speaks only about varying the terms of a document.

Provisions of Indian Succession Acts related to

wills to be excluded 
According to section 100 of the Indian Evidence Act, the provisions laid
down under Chapter VI  of the  Indian Evidence Act are to be taken into
effect on any of the provisions regarding the construction of will under the
Indian Succession Act,1865.

Conclusion
Chapter VI of the Indian Evidence Act deals with the provisions related to the
exclusion of oral evidence by documentary evidence. There are certain
circumstances when the oral evidence cannot be admitted before the court for
the support of documentary and there are also instances when the oral evidence
is admissible. All the provisions have to be dealt with according to this chapter.
The provisions related to the will under the Indian Succession Act is excluded
from these provisions.

Reference
1. Lal Batul, The Law of Evidence, 22nd Edition (2018), Central Law Agency.
2. The Indian Evidence Act, 1872.