EVIDENCE

LECTURE NOTES

Mains questions

1. Write note on primary and secondary evidence. State with leading cases?

2. What is Secondary evidence? Under what circumstances it can be given? Is uncertified copy of public document admissible if original has been destroyed?

3. Can the court admit the photocopy of the original Memorandum and what are the requirements which a person must comply before he seeks to lead in evidence the photocopy/secondary evidence such of the memorandum?

4. To prove his title. The complainant produces an unattested Photostat copy of a document on the ground that the original document is lost. Decide whether the document produced by the complainant may be admitted as secondary evidence.

5. ‘A’ sues ’B’ on an agreement and gives ‘B’ notice to produce it. At the trial ‘A’ calls for the document and ‘B’ refuse to produce it. ‘A’ gives secondary evidence of its contents. Can ‘B’, in order to contradict secondary evidence, produce original document as evidence before the court?

PAHUJA LAW ACADEMY

LECTURE NOTES

DOCUMENTARY EVIDENCE

1. Documents in several parts.— partition deed

2. Documents in counterparts.— patta and qabuliyat, cheque and counterfoil

3. Document made by uniform process.- A files a suit against B for defamation alleging that B published a defamatory statement against him in a newspaper through which a defamatory matter was published to about 2,000 persons. Now in this case A need not prove the contents of all the newspapers. He may prove one copy of newspaper and that document will be the original in respect of the contents of the other newspapers. But when the question arises whether the document on the basis of which the news was published in the paper was written by B the contents of that original document is to be proved. The newspapers, which have been prepared by machine will not be original evidence but will be only secondary evidence of the original document.

SECONDARY EVIDENCE

1. Certified copies under the provision given in the Evidence Act – Section 76 of the Evidence Act lays down that every public officer having custody of a public document shall give to a person, on demand of, and on payment of legal fees, a copy of it (public document).

– In Kalyan Singh v. Smt. Chhoti and others, it was held by the Supreme Court that under Evidence Act five kinds of secondary evidences are mentioned. Under sub-section (1) the certified copies of document under Section 79 of Evidence Act is presumed. But other copies should be proved by proper evidences. A certified copy of a sale deed can be presented as a secondary evidence in absence of original copy. But in this case the copy which is presented by the party is not certified copy. It is an ordinary copy. There is no evidence for the contents of original sale deed. The ordinary copy of sale deed cannot be secondary evidence. The court has right and duty to exclude this kind of evidence.

2. Copies made from the original by mechanical process – According to this clause, (a) copies made from the original by mechanical process; (b) copies compared with such copies, are secondary evidence of original.

– The copies must be made from the original by such mechanical process as in themselves insure the accuracy of the copy for example the printing, lithography or photography.

3. Copies made from or compared with the original

– If a copy is prepared word to word from the original, it is secondary evidence of the original. A copy prepared from it and compared ‘by it will be secondary evidence of its contents.

– A copy prepared by another copy but compared with the original is a secondary evidence.

4. Counterparts of documents

– Patta and Qabuliyat

5. Oral accounts of the contents of a document by some person who has seen it

– Under this clause it is necessary that the person giving the oral account of the contents of document must have himself seen the original document;

– It is not enough if he saw a copy of the original, nor shall it suffice, if somebody else saw the original and he described it to the deponent.

– The word ‘seen’ under this clause means read.

– Consequently a person who proposes to testify to the contents of a document must have read it. He may not describe its contents merely on the credit what another has told him, even though his informant purports to have read it aloud in his presence. Therefore oral account of one who has merely seen a document but is unable to read it is not secondary evidence.

Distinction between Primary Evidence and Secondary Evidence

PRIMARY EVIDENCE AND SECONDARY EVIDENCE

– 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 section also lays down that in the cases mentioned under section 65 a secondary evidence of the contents of the document may be given and the court in such cases cannot insist upon the original being brought before it.

– According to section 65 the secondary evidence about the contents of a document is admissible under the following circumstances:

(a) (i) Where the original is in possession of adversary Party

– (ii) When the original is in possession of a person out of reach or not subject to the process of the court.

– (iii) When 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.

– In Iswar Das (dead) through L.R. v. Sohandas (dead) through L.R., there was question of proof of execution of mortgage deed. The execution of mortgage deed was not specifically denied by the defendant. It was, therefore, not necessary to call attester into witness box. The defendant mortgagee refused to file original deed. Thereupon, the plaintiff filed certified copy as secondary evidence. It was sufficient proof of execution of mortgage deed.

– But if the original deed is inadmissible for want of registration or want of requisite stamp, the written admission will not be admissible under this clause.

(c) When the original has been destroyed or lost or cannot be produced. Proof of loss.

– In order to claim the benefit of Section 65(c), there should be credible evidence of the loss of the original. Loss can never be proved absolutely oral evidence of the loss of the original which has not been seen for many years satisfies the provision of this clause.

– There must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all the sources and means, in the search of the document which were available to him.

(d) 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.

(e) 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.

– In Marwari Kumhar v. Bhagwan Puri Guru Ganesh Puri, it was held by the Supreme Court that Secondary evidence can be led even of public document, if condition laid down under sub-clause (c) are fulfilled. Thus, if original public document has been lost or destroyed, the secondary evidence can be gniven of public document.

(f) 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.

(g) When the original consists of numerous accounts or huge document.

– This provision is for the saving of public time.

– Admissibility of the original.- It must be borne, in mind that Section 65 deals with the manner of proof. A distinction must be drawn between the admissibility of evidence and the manner of proof. Secondary evidence can only be given when the primary evidence or the document itself is admissible, when a certain document is inadmissible no secondary evidence is admissible. No secondary evidence can be given of a deed which is inadmissible due to want of registration.

Rules as to notice to produce.

– section 65, clause (a) that when the original is in possession of the adverse party or, somebody else, ‘a notice will be sent to him to produce the original and if he fails to do so the party wanting to prove the contents of the document will be allowed to adduce secondary evidence. Section 66 only lays down that the secondary evidence under section 65, clause (a) is admitted only when the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his attorney or the pleader a notice to produce it. This section has given few particular cases in which notice is not necessary before giving secondary evidence under section 65, clause (a).

– Notice shall not be required in order to render secondary evidence admissible in any of the following cases or in any other case in which the court thinks it fit to dispense with:-

(1) when the document to be produced is itself a notice;

(2) when from the nature of the case the adverse party must know that he will be required to produce it;

(3) when it appears that the adverse party has obtained possession of the original by force or fraud;

(4) when the adverse party or his agent has the original in the court;

(5) when the adverse party or his agent. has admitted the loss of the original;

(6) when the person possession of the document is out of reach of, or not subject to the process of the court.

(1) When the document is itself a notice.-

– When the document to be proved is itself a notice, secondary evidence can be given without serving a notice upon the person in possession of the original.

(2) When the adverse party must know that he will be required to produce it.-

– In an action in contract, the pleadings imply notice as the orders and letters constituting the contract and so notice to produce the original is not needed.

– In an action of redemption of a mortgage when the mortgagee is in possession of the mortgage-deed and fails to produce it, secondary evidence is admissible without summoning the original.

(3) When the adverse party has obtained possession by force or fraud.-

– The third case in which notice is produced is not necessary, is where the possession of the paper, the production of which is required has been obtained by the adverse party fraudulently or forcibly as where after the suit was brought, he has received it from a witness by fraud.

(4) When the adverse party has the original in the court.

– The fourth case in which notice to produce is unnecessary, is when it is proved that the adverse party or his solicitor or vakil has the original instrument in court; for the object of the notice is merely to enable him to produce it, if he likes, at the trial and thus to secure the best evidence of its contents. Where the document is at hand in the court-room in the opponent’s possession an instant demand is sufficient.

(5) When the adverse party had admitted the loss.

– The rule requiring the notice to the opponent proceeds on the assumption that the opponent has possession of the document, the object being that if he refuses to produce the original, secondary evidence may be given. It follows that where the document is admitted by the opponent to have been destroyed or lost, or even out of his possession no notice is necessary; for it is no longer a case of opponent's possession, but that of loss.

(6) When the person in possession is out of reach, etc.

– Where a person in possession of the original document is out of the jurisdiction of the court a notice of summoning the original is not necessary; secondary evidence may be given straightaway.

– The court may dispense with notice in a fit case.

– A court has absolute power when it thinks fit to dispense with a notice.

SECTION 67.- Proof of signature and handwriting of person alleged to have signed or written document produced.- If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.

– The modes of proving a signature are as follows:

1. By calling a person who signed or wrote a document.

2. By calling a person in whose presence the document was signed or written.

3. By calling a handwriting expert.

4. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written.

5. By comparison of the court the disputed signature or writing with some admitted signature or writing.

6. By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it.

7. By the statement of a deceased professional scribe, made in the diary in course of business, that the signature in the document is that of a particular person.

8. A signature is proved to have been made if it is shown to have been made at the request of a person by some other person e.g., by the scribe who signs on behalf of the executant.

9. By the other circumstantial evidence.

– Objection to the mode of proof should be raised at the time when it is being proved and not afterwards.

PAHUJA LAW ACADEMY

LECTURE NOTES

Preliminary questions

The contents of a document can be proved by………….

(a) Primary evidence only

(b) Direct evidence only

(c) Primary or secondary evidence

(d) None of the above

2. Which of the following sections of the Indian Evidence Act mandates that all facts, except the contents of documents or electronic records, may be proved by oral evidence?

(a) Section 56

(b) Section 57

(c) Section 58

(d) Section 59

3. Which of the following sections of the Indian Evidence Act mandates that the contents of documents may be proved either by primary or by secondary evidence?

(a) Section 56

(b) Section 57

(c) Section 58

(d) Section 61

4. Primary evidence means………….

(a) Documents itself produced the inspection of the court

(b) Documents produced by person who prepared it

(c) Either (a) or (b)

(d) None of the above

5. Which of the following sections the Indian Evidence Act primary evidence?

(a) Section 60

(b) Section 61

(c) Section 62

(d) Section 63

6. 6. Where a document is executed in several parts, each part is primary evidence of the document. The statement is……….

(a) True

(b) False

(c) Partly Correct

(d) None of the above

7. Which of the following sections of the Indian Evidence Act defines secondary evidence?

(a) Section 60

(b) Section 61

(c) Section 62

(d) Section 63

8. Which of the following is/are secondary evidence?

(a) Certified copies and copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies

(b) Copies made from or compared with the original and counter- parts of documents as against the parties who did not execute them

(c) Oral accounts of the contents of a document given by some person who has himself seen it

(d) All of the above

9. Which of the following has been termed as second-hand secondary evidence by the Supreme Court?

(a) Dog tracking

(b) News paper report

(c) Expert evidence

(d) None of the above

10. The contents of a document can be proved by…………

(a) Merely filing it before the court

(b) By examining the author before the court

(c) Either (a) or (b)

(d) None of the above

EVIDENCE

PRELIMINARY

MAINS

1. How writing on a document or execution of document can be proved in court?
2. A contracts in writing with B for delivery of wheat upon certain terms. The contract mention the facts that B had paid A the price of other wheat contracted for verbally on another occasion . Oral evidence is offered that no payment was made for the other wheat . Is the evidence admissible?

(SECS. 79-90)

Secs. 79-90 are founded on the maxim omnioprosumuntur rite esseacta which means that ‘all acts are presumed to be rightly done’. But, these presumptions are not conclusive but only prima facie presumptions and if the documents are incorrect, evidence can be led to disprove them.

Presumptions under Secs. 79-85 and Sec. 89 are “compulsory” one in the sense that the judge is bound to raise the presumption in question.The presumptions under Secs. 86-88 and Sec. 90 are in the “discretion” of the court in the sense that the court may or may not draw presumptions.

Sec. 79 (Presumption as to Genuineness of Certified Copies)

According to Sec. 79, when a certified copy of a document is producedbefore the court as evidence of the original the law presumes that thecopy is a genuine reproduction of the original. However, it is necessarythat the copy should have been certified by an officer of the Central/State Government (including an officer in State of J &K authorized byCentral Govt.) and the document should be substantially in the formprescribed by law and should also purport to be executed in that manner.

The court also presumes that the officer who signed or certified thedocument held the official character which he claims in such paper. It isnot necessary to call such an officer in evidence.

Sec. 80 (Presumption as to Documents produced as Records of Evidence)

According to Sec. 80, when a person has appeared before a Court of lawand has recorded his testimony or confession (taken in accordance with lawand purporting to be signed by a judge, etc.) and his statement beingrelevant in a subsequent case, the court shall presume the genuineness ofsuch certified copy and that such evidence, statement, etc. was duly recorded.

This section is based on the principle that acts presumed to havebeen done rightly and regularly in course of judicial proceedings will beaccepted in evidence.

Sec. 81 (Presumption as to Gazettes, Newspapers, Private Acts of Parliament)

Under Sec. 81, Official Gazettes, newspapers or journals, copies of theprivate Act of Parliament of U.K., and other documents kept in accordancewith the law are presumed to be genuine.

In spite of this presumption, it has been held that newspaper reportsdo not constitute admissible evidence of their truth. The presumption ofgenuineness attached under Sec. 81 to a newspaper report cannot betreated as a proof of the facts reported therein [Laxmi Raj Shetty v State of T.N. AIR was SC 1274; B. Singh (Dr.) v Union of India (2004) 3 SCC 363]. The statement of a fact contained in a newspaper is merely a‘hearsay’ and is, therefore, inadmissible in evidence (Ramswaroop v State of Rajasthan AIR 2002 Raj 27).

Sec. 81A (Presumption as to Gazettes in Electronic Forms)

The Court shall presume the genuineness of every electronic recordpurporting to be the Official Gazette,or purporting to be electronicrecord directed by any law to be kept by any person in the form requiredby law and is produced from proper custody.

Sec. 82 (Presumption as to Document admissible in England without proof of seal or signatures)

Under Sec. 82, when a document is produced before a court whichaccording to the laws of England or Ireland would be admissible withoutproof of seal, signature, etc. the court shall presume that such seal, etc.is genuine and also that the person signing the document held at the timeof signing it, the judicial/ official character which he claims.

Sec. 83 (Presumption as to Maps or Plans)

According to Sec. 83, maps or plans purporting to be made with theauthority of the Central/ State Government arc presumed to be accurate.But, maps or plans made for the purpose of any cause must be provedto be accurate.

Sec. 84 (Presumption as to Collection of Laws and Reports of Decisions)

According to Sec. 84, the Court presumes the genuineness of every book,printed or published under the authority of the Government of anycountry, which contains laws of that country. Similar is the case with abook published by the State which contains report of decided cases.It may be noted that Sec. 57 authorizes the Courts to take judicialnotice of the existence of all laws and statutes in the territory of Indiaand U.K. Sec. 74 recognizes statutory records to be ‘public records’. Sec.78 lays down the method of proving the Statutes/ Acts passed by thelegislature.

Sec. 85 (Presumption as to Power of Attorney)

A ‘power of attorney’ is a document by which an agent isgiven the powerto act for his principal. According to Sec. 85, a power of attorney dulyexecuted before and authenticated by a notary public or any judge/court/Indian Consul/Vice-Counsel/representative of Central Government arepresumed to be genuine. The presumption also applies to documentsauthenticated by notaries functioning in other countries.

Sec. 85A/ 85B/ 850 (Presumption as to Electronic Agreements, Records, etc.)

Sec. 85A raises a presumption as to ‘Electronic Agreements’: The Courtshall presume that every electronic record purporting to be an agreementcontaining the digital signatures of the parties was so concluded by affixingthe digital signature of the parties.

Sec. 85B raises a presumption as to a ‘secure electronic record’(that it has not been altered since the specific point of time to which thesecure status relates), and a ‘secure digital signature’ (that it is affixed bysubscriber with the intention of signing or approving the electronic record).Except in these cases, there is no presumption relating to authenticity, etc.of the electronic record or any digital signature. Sec. 85C raises apresumption as to ‘Digital Signature Certificates’.

Sec. 86 (Presumption as to Certified Copies of Foreign Judicial Record)

Under Sec. 86, the court is given the judicial discretion to presume thatthe certified copies offoreign judicial records are genuine.

Sec. 87 (Presumption as to Books, Maps and Charts)

According to Sec. 87, when books, maps, charts, etc. are produced beforethe Court in proof of a fact in issue or a relevant fact, the Court maypresume that any such book, map, etc. was written or published by theperson whose name is shown as that of the author or publisher and waspublished at the place where it was published.

Sec. 88 (Presumption as to Telegraphic Messages)

According to Sec. 88, in reference to telegraphic messages, the Court maypresume that the message delivered to the addressee corresponds with themessage handed over to the post office and that the message was meantfor the person whom it is purported to be delivered. But, the court shallnot make any presumption as to the sender of the message since telegraphicmessages can be sent by unauthorized persons. The court may treattelegraphic messages received, as if they were the ‘originals’ sent. Atelegram is a primary evidence of the fact that the same was delivered tothe addressee on the date indicated therein.

Sec. 88A (Presumption as to Electronic Messages)

The court may presume that an electronic message forwarded by theoriginator through an electronic mail server to the addressee to whom themessage purports to be addressed corresponds with the message as fedinto his computer for transmission; but the court shall not make anypresumption as to the person by whom such message was sent.

Sec. 89 (Presumption in relation to Documents Not Produced)

The court shall presume that every document, called for and notproduced after notice to produce, was attested, stamped and executed inthe manner required by law.

Sec. 90 (Presumption as to Documents Thirty Years Old: Ancient Documents)

Sec. 90 lays down that where a document is purported or proved to be30-year old and is produced from any custody which the court in particularcase considers proper, the court may presume that signature and everypart of document is in that person’s handwriting, and in case of documentattested or executed that it was duly attested or executed by the personby whom it purports to be attested or executed.

The basis of the section is that as time passes, the executants,vendors, witnesses may not be available to prove title, etc. The documents which are thirty years old, prove themselves. It may be noted that the presumptionrelates to the execution of the document (signature, attestation, etc.), inother words, its genuineness, but not to the truth of its contents (Ramakrishna v Gangadhar AIR 1958 Qri 26). Also, there is no presumption that theexecutants had the authority to do or not what the document purportsto do. Further, the presumption can be raised only with reference tooriginal documents and not to copies thereof.

Explanation to Sec. 90: According to the explanation, “proper custody”means: (a) the place where the document would normally be; (b) wasunder the care of a person with whom it would naturally be; (c) anycustody which is proved to have had legitimate origin; and (d) under thecircumstances of the case the custody from which the instrument isproduced is probable.

Illustrations

• A has been in possession of landed property for a long time. Heproduces from his custody deeds relating to the land, showing histitle to it. The custody is proper.
• A produces deeds relating to landed property of which he is themortgagee, the mortgagor is in possession. The custody is proper.
• A, a connection of B, produces deeds relating to land in B’spossession which were deposited with him by B for safe custody.The custody is proper.

Because a document purports to be an ancient document and to comefrom proper custody, it does not follow that its genuineness is to beassumed. If there are reasonable grounds for suspecting its genuineness,and the party relying upon it fails to satisfy the court of its due execution,its genuineness will not be presumed. The presumption under Sec. 90 isof discretionary nature; the court may refuse to draw it and require thedocument to be proved in the ordinary manner. A party who has attemptedto prove the document by direct evidence cannot afterwards rely on thepresumption [Chandabai v Anwarkhan AIR 1997 M.P. 238].

In Gangamma v Shivalingaiah (2005) 9 SCC 359, the Apex Courtheld: Sec. 90 nowhere provides that authenticity of the recitals containedin the document is to be presumed. Even when the formal execution ofthe document is proved, this by itself does not lead to the presumptionthat the recitals contained in the document are also correct. It is open tothe parties to raise a plea to the contrary within the limits permitted underSecs.91 and 92.

Sec. 90A (Presumption as to Electronic Records Five Years Old)

Where any electronic record, purporting or proved to be 5-year old, isproduced from a proper custody, the court may presume that the digitalsignature which purports to be the digital signature of any particularperson was so affixed by him or any person authorized by him in thisbehalf.

7

Exclusion of Oral by Documentary Evidence

Where both oral as well as documentary evidence are admissible, thecourt may go by the evidence which seems to be more reliable. There isnothing in the Act requiring that the documentary evidence should prevailover the oral evidence. The provisions as to exclusion of oral bydocumentary evidence are based on the rule of ‘best evidence’. Wherethe fact to be proved is embodied in a document, the document (primary or secondary evidence of it) is the best evidence of the fact. The maximof law is whatever is in writing must be proved by the writing. Secs.91and 92 of the Evidence Act incorporate this principle.

Best Evidence Rule

The main object of the law of evidence is to restrict the investigationmade by courts within the bounds prescribed by general convenience.Thus, the evidence must be confined to the matter in issue, hearsayevidence must not be admitted, and, the best evidence must be given inall cases.

The ‘best evidence’ rule means that the best evidence of which thecase in its nature is susceptible must always be produced. The rule doesnot require the production of the greatest possible quantity of evidence,but it is framed to prevent the introduction of any evidence which raisesthe supposition that there is better evidence behind it, in possession orunder control of the party by which he might prove the same fact, andwhich is withheld by the party.

It is one of the cardinal rules of the law of evidence that the bestevidence in possession of the party must always be given, i.e., if a factis to be proved by oral evidence, the evidence must be that of a personwho had directly perceived the fact to which he testifies. Otherwise, itwould be impossible to test, by cross-examination, the truth of the testimony;and the law rejects the evidence which cannot adequately be tested. Thus,hearsay evidence is not evidence; it is only in exceptional cases that suchevidence is admissible.

Similarly, where the transaction sought to be proved is primarily evidenced by a writing the writing itself must be produced or accountedfor. It is only in the absence of best or primary evidence (originaldocument) that the court will accept what is known as secondary evidence(copy of the original document). Secondary evidence will never be receiveduntil the party tendering it proves that it is out of his power to obtainthe best evidence.

Further, it is a well-established rule of law that whenever writteninstruments are involved, any other evidence (e.g. oral) is excluded frombeing used, either as a substitute for such instrument or to contradictsuch instrument (Rule of exclusion of oral evidence by documentaryevidence). The written instruments are entitled to more credit than parole(or oral) evidence. However, in certain exceptional cases, oral evidencecan be given regarding the documents.

Evidence of Terms of Contracts, Grants, etc. Reduced to Document (Sec.91)

According to Sec. 91, “when the terms of a contract, grant or some otherdisposition of property is reduced to the form of a document or isrequired by law to be reduced to a document, no evidence shall be givenfor the proof of the terms of such contract, etc. except the primary orsecondary evidence of the writing itself”.

This section merely forbids proving the contents of a writingotherwise than by writing itself. It incorporates rule of “best evidence”which in reality declares a doctrine of substantive law, namely, that in thecase of a written contract all proceedings and contemporaneous oralexpressions of the thing are merged in the writing or displaced by it [Roop Kumar v Mohan Thedani (2003) 6 SCC 595].

The section extends to both types of transactions, namely, whichhave voluntarily been made by writing and for which writing is compulsory;it does not apply to oral contracts. Thus, writing becomes its own evidenceand excludes all other kinds of evidence. The writing excludes oral evidencealtogether. The matters required by law to be in writing are public andjudicial records such as judgments, examination of witnesses, deeds ofconveyance of lands such as sale-deeds or mortgage-deeds of Rs.100 ormore, a partition-deed, etc. Where registration of a document is compulsoryunder the Registration Act, the document if unregistered will be inadmissiblein evidence and no other evidence of the contents of it can be received.

For example, A leases his house to B via a written lease. Later, A files a suit for arrears of rent and for ejectment. A alleges that thetenancy was from month to month, while B contends that it ran fromyear to year. In this case, the terms of the contract between the partieshaving been reduced to document, none of them will be allowed toadduce oral evidence in the court. The document will have to be producedin the court.

A sues B for the possession ofa certain house alleging that itbelongs to him and B is a trespasser. B contends that the house belongsto him and alleges that there was previous civil litigation between thesame parties for the same house and it was decided that the housebelongs to him. The contents of that previous judgment must be provedby the copy of the judgment. Oral evidence is shut out.

It may be noted that an oral account of the contents of documentis not an oral evidence. Further, the rule contained in Sec.91 applies tothe terms and not to the factum (or existence) of a contract, and evidencein proof of a factum of a contract is not excluded.

Exception 1, Sec.91 – Where the appointment of a public officer isrequired by law ‘ ‘ i to be made by writing and the question is whether anappointment was made, if it is shown that a particular person has actedas such officer, that will be sufficient proof and the writing need not beproved. When the question is whether A is a High Court Judge, thewarrant of appointment need not be proved, the only fact that he isworking as a High Court Judge will be proved. Similar is the case whenA appears before the court as a witness and says that he is a civil surgeon.

Exception 2, Sec.91– Wills admitted to probate in India may be provedby the probate. The document containing the will need not be produced.The word ‘probate’ means the copy of a will certified under the seal ofthe court of competent jurisdiction with a grant of administration to theestate of the testator.

Explanation 1, Sec.91 – This section applies equally to cases in which thecontracts, etc. are contained in one document or more than one. If acontract is contained in several letters, all the letters must be proved[Illust. (a)].

Explanation 2, Sec.91– Where there are more originals than one, oneoriginal only need be proved.

Illustrations: If a contract is contained in a bill of exchange, the billof exchange must be proved. (c) If a bill of exchange is drawn in a setof three, one only need be proved.

Explanation 3, Sec.91– Where in addition to the terms of the contract,etc. a document refers to any other fact also, as to that fact oral evidence, is always allowed. For example, a contract for sale of goods mentions thatthe goods supplied on earlier occasions have been paid for. Since this isnot a term of the contract, it is an extraneous fact and, therefore, oralevidence can be offered to show that no such payment was ever made[Illust. (d)]. A gives B a receipt for money paid by B. Oral evidence isoffered of the payment. The evidence is admissible [Illust.(e)].

Exclusion of Evidence of Oral Agreement (Sec.92)

The provision in Sec. 91 is’fi1rther supplemented by Sec. 92 by providingthat once any such contract, grant or disposition has been proved by thewriting, then no evidence can be given of any oral agreement to contradictor change the terms of the contract. In other words, no oral evidencecan be given to qualify the terms of the document.

Sec. 92 precludes only the parties to the document and theirrepresentatives-in-interest from giving oral evidence concerning the contentsof document. Other parties (or strangers) are left free to give suchevidence. Further, evidence can be given of any oral agreement whichdoes not contradict, vary, add or subtract from the terms of the document.

It may be noted that Sec. 91 lays down a universal rule and is notconfined to the executant or executants of the document. It is after thedocument has been’ produced to prove its terms under Sec.91 that theprovisions of Sec.92 come into operation. Both the sections would beineffective without each other. Sec. 91 applies to both unilateral andbilateral documents, while Sec. 92 applies only to bilateral one (i.e. doesnot apply to third persons/persons). In Roop Kumar v Mohan Thedani(2003) 6 SCC 595, it was held that Secs.91 and 92 are based on therecognition of the jural act of integration in the case of written instrumentsand applies even to a third party seeking to establish a contract.

Suppose A borrows Rs.200 from B and executes a pronote inwhich the interest rate is given 1 per cent. B files suit for recovery ofthe principal and interest at the rate of 1 per cent. The pronote is filedand proved in the court. A wants to lead evidence to the effect that theinterest settled between the parties was ½ percent. Now, this evidencecannot be allowed as it contradicts the terms of the pronote.

The rationale behind Sec. 92 is that the parties having made acomplete memorial of their agreement, it must be presumed that theyhave put into writing all that they considered necessary to give fullexpression to their meaning and intention;further, the reception of oraltestimony would create mischief and open the door to fraud (RajkumarRajendra Singh v State of H.P. AIR 1990 SC 1833).

If, for example, a policy of insurance applies to ships leaving Calcutta.One of the ships is lost. It is sought to be proved that by an oralagreement the particular ship was excepted from the policy. Such evidenceis inadmissible [illustration (a) to Sec. 92]. Similarly, a written agreement topay a sum of money on a certain day cannot be contradicted by provingthat the day in question was changed by an oral agreement. A agreesabsolutely in writing to pay B Rs.1000 on 1^stMarch 1873. The fact that,at the same time, an oral agreement was made that the money should notbe paid till the 31^stMarch cannot be proved [illustration (b) to Sec. 92].

An estate called “Rampur Tea Estate” is sold by a deed whichcontains a map of the property sold. The fact that land not included inthe map had always been regarded as part of the estate and was meantto pass by the deed cannot be proved [Illust.(c)].

Exceptions – when Oral Evidence can be given regarding a Document

There are various exceptions to the general rule of exclusion of evidenceof oral agreement-

• Validity of document (proviso 1, Sec. 92) – The evidence can begiven of any fact which would invalidate the document in questionor which would entitle a parry to any decree or order relating tothe document. The validity of a document may be questioned onthe grounds of fraud, intimidations, illegality, failure ofconsideration, mistake in fact or law.

For example, A enters into a written contract with B to work certainmines of B, upon certain terms. A was induced to do so by amisrepresentation of B’s as to their value. This fact may be proved [Illust.(d)]. A institutes a suit against B for the specific performance of acontract, and also prays that the contract may be reformed as to one ofits provisions – inserted by mistake. A may prove that such a mistake wasmade as would bylaw entitle to have the contract reformed [Illust.(e)].

The owner of a house borrowed a sum of money and executed a nominal sale-deed and rent note. She was allowed afterwards to provethat the documents were not intended to be acted upon and that the rentpaid by her represented interest on the loan (Gangabai v Chabbubai AIR1922 SC 20).

• Matters on which document is silent (proviso 2, Sec. 92) – Evidencecan be given of an oral agreement on a matter on which the document is silent. But the oral agreement should not be inconsistent with the terms stated in the document. The separate oral agreement should be on a distinct collateral matter, althoughit may form a part of the transaction. In considering whether acase falls under this exception, the formality of the document isan important consideration. The more formal the document, thegreater will be the court’s reluctance to admit oral evidence.

The illustrations to Sec. 92 make clear the point. A written agreement, forexample, is silent as to the’ time of payment of the price. If there is anyoral agreement regarding this, it may be proved [Illust.(f)]. A sells B ahorse 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[Illust(g)]. Where a room is hired in a lodging on a fixed rent per monthby a written agreement, but the agreement does not make it clear whetherthe amount reserved was for lodging only or included boarding also. Ifthere was any oral agreement on the point the samemaybe proved [Illust. (h)].

In Brij Kishore v LakhanTiwari (AIR 1978 All. 374), the documentin question was one by which the existence of a deed was acknowledgedand it was on a stamp paper. The document was silent about the interestpayable and, therefore; oral evidence was offered on the point. Thequestion was whether the document was so formal as to shut out oralevidence. The court allowed the evidence.

The court observed: When the document is such that one mayreasonably believe that the entire terms and conditions agreed were soughtto be put into the document, then oral evidence should not be allowed.Generally speaking, mere acknowledgment of debt, even though stamped,cannot be deemed to be such a formal document as to incorporate allthe terms and conditions of the borrowing. It is basically an acknowledgmentof liability not mentioning the terms and conditions on which theborrowing was contracted. In that sense, it differs from a formal pronotewhich incorporates the terms and conditions of loan.

• Condition precedent (proviso 3, Sec. 92) – The existence of anyseparate oral agreement constituting condition precedent to theattaching of any obligation under the document may be proved.This exceptionmeans that where there is a separate oral agreementthat the terms of a written contract are not to take effect untila condition precedent has been fulfilled or a certain event hashappened, oral evidence is admissible to show that as the eventdid not take place, there is no written agreement at all. This rulewould never apply to a case where the written contract has beenperformed or acted upon for some time.

If a receipt for payment has been sent on an oral understanding that thereceipt was to apply only when payment was made, this fact may beproved [Illust.(i)]. Similarly, where the parties to a promissory note payableon demand, orally agreed that payment would not be demanded for fiveyears, the court allowed the oral agreement to be proved (Naraindas v Papammal AIR 1967 SC 333). A and B make a contract in writing to takeeffect upon the happening of a certain contingency. The writing is leftwith B, who sues A upon it. A may show the circumstances under whichit was delivered [Illust.(j)].

• Rescission or modification (proviso 4, Sec. 92) – Where after executinga document, the parties orally agree to treat it as cancelled or tomodify some of its terms, such oral agreement may be proved.However, where the contract is one which is required by law tobe in writing, or where it has been registered lawfully, then proofcannot be given of any oral agreement by which it was agreedeither to rescind the contract or to modify its terms.
• Usages or custom (proviso 5, Sec. 92) – Under this exception, oralevidence is admissible to explain or supply terms in commercialtransactions on the presumption that the parties did not intendto put into writing the whole of their agreement, but tacitly(impliedly) agreed that their contract was to be interpreted orregulated by established usages and customs, provided they arenot inconsistent with the terms of such contract. Thus, oralevidence may be offered that by the custom of the trade theseller had to arrange for wagons (Bejoy Krishna v N.B. Sugar Mills Co. AIR 1949 Cal 490).
• Relation of language to facts (proviso 6, Sec. 92) – Any fact maybe proved which shows in what manner the language of adocument is related to existing facts. This exception comes intoplay when there is latent ambiguity in a document i.e. when thereis a conflict between the plain meaning of the language used andthe existing facts. In such cases, evidence of the surroundingcircumstances may be admitted to ascertain the real intention ofthe parties. Thus, the conduct of the parties can also be takeninto account so as to find out what they might mean by theirwords.

Where, for example, a person transfers the whole of his property, butdoes not describe or state what his property is. In such cases the propertyto which the document relates can be proved by oral evidence. A makesa will of his property to his children. He does not name them. Evidencemay be given to prove as to who are his children. Oral evidence is alsoreceivable to throw light upon the nature of a document.

• Appointment of a public officer (exception 1, Sec. 91) – See above.
• Wills (exception 2, Sec. 91) – See above.
• Extraneous facts (explanation 3, Sec. 91) – See above.

Case Law

In Sam Veeraswami v TalluriNarayya (AIR 1949 PC 32), the appellant soldsome property through a registered sale deed in 1932. It was an outrightsale. But simultaneously, there was an oral agreement for sale and rightto re-conveyance if sale price was repaid within five years. The questioninvolved in dispute is whether the document is a sale with or without rightto re-conveyance as per oral agreement and benefit of proviso to Sec.92 is available? According to operating part of Sec. 92, written agreementwill prevail over oral agreement. But proviso 2, Sec. 92 makes a difference.In this case, it is necessary to see whether oral agreement as to the re-conveyance of property sold, contradicts, varies, adds to or subtractsfrom the term of sale document. The answer lies in the truth of theagreement.

The real issue was whether the transaction of sale and re-conveyanceare a single transaction or two separate ones? There can be differentagreements of sale and then resale or re-conveyance relating to the samesubject-matter. The Privy Council held that, there were two differenttransactions. The determining factor is the ultimate shape of the agreementrather than the process by which it is reached. An oral stipulation maybe purely collateral to the written agreement which it has induced, and,both written as well as oral agreement can be separate transactions thoughtouching on a common subject-matter.

Such was the character of transactions in this case and the oralagreement did not contradict, vary and subtract from the terms of saledeed (if the agreement was in truth a mortgage the oral agreement wouldobviously contradict the terms of the sale deed). On the contrary, it leftthose terms and the interest passing thereunder to the purchaser entirelyunaffected. Can it then be said to have added to the terms of the saledeed? The words ‘adding to’ which are part of Sec. 92 must receive theirdue weight, but they do not suffice to exclude the oral agreement reliedon by the appellants. It is of course, literally correct to say that as theagreement for re-conveyance related to the lands sold, it added a furtherstipulation respecting those lands. That, however, is not an appropriatetest of the applicability of Sec. 92 which is concerned to defeat themodification of a particular document. It is not enough to ask if the oralagreement relates to what has been sold. To be excluded it must bear, insome one or more of the ways specified in the section, upon the termsof sale as contained in the instrument. To add a stipulation which is quiteunconnected with the terms of sale is not an addition of the kind struckat by the section. Thus, proviso 2 to Sec. 92 is applicable and oralagreement is a valid separate transaction which will prevail. The appellantswill succeed.

LEADING CASE: ROOF KUMAR v MOHAN THEDANI [(2003) 6 SCC 595]

Facts and Issue– In this case the scope and ambit of Secs.91 and92 were in issue. The jural positions of these two sections wasanalyzed by the court.

Before the High Court the parties agreed that the basicquestion which required consideration was whether relationshipbetween the respondent and the appellant was that of licensorand licensee or it was that of lessor or lessee. The Trial Judgehad held that the transaction between the respondent and appellantevidenced by an agreement dated 15-5-1975 amounts to licenceand not sub-letting. There was a finding recorded by the trialcourt to the effect that the appellant was a party to earlierejectment proceeding which was not factually correct. The HighCourt held that the agreement dated 15-5-1975 was entered intobetween them with mutual consent and the appellant-defendant signed the same voluntarily and out of his free will; it was nota sham document; was in fact acted upon; the appellant-defendantwas an accounting party in terms of the agreement.

The question was whether the particular document wasintended by the parties to cover certain transactions betweenthem and, therefore, to deprive of legal effect all other utterances.

Observations and Decision– The Apex Court held that the HighCourt was justified in rejecting the plea of sub-tenancy. It observedthat every jural act may have the following four elements:

• the enaction or creation of the act;
• its integration or embodiment in a single memorialwhen desired;
• its solemnization or fulfillment of the prescribed forms, if any; and
• the interpretation or application of the act to theexternal objects affected by it.

The first and fourth are necessarily involved in every jural act,and second and third may or may not become practicallyimportant, but are always possible elements. The integration ofthe act consists in embodying it in a single utterance or memorial- commonly, of course, a written one. When a jural act isembodied in a single memorial all other utterances of the partieson the topic are legally immaterial for the purpose of determiningwhat are the terms of their act. This rule is based upon anassumed intention on the part of the contracting parties, evidencedby, the existence of the written contract, to place themselvesabove the uncertainties of oral evidence and on a disinclinationof the courts to defeat this object.

The court cited Thayen’sPreliminary Law on Evidence (pp.397-398); Phipson on Evidence, 546 (7th Edn.); Wigmore’s Evidence,2406; Mckeivey’sEvidence, 294; Greenlear’s Evidence, 563, whereit is stated that one of the matters with which the best evidencerule is exclusively associated is the rule that when the contentsof a writing are to be proved, the writing itself must be producedbefore the court or its absence accounted for before testimonyto its contents is admitted.

The Apex Court observed: Sec. 91 relates to evidence ofterms of contract, grants and other disposition of propertiesreduced to form of document. It merely forbids proof of thecontents of a writing otherwise than by the writing itself; it iscovered by the ordinary rule of law of evidence. In Sec. 92, thelegislature has prevented the oral evidence being adduced for thepurpose of varying the contract as between the parties to thecontract; but, no such limitations are imposed under Sec. 91.Secs.91 and 92 apply only when the document on the face ofit contains or appears to contain all the terms of the contract.Sec. 91 is concerned solely with the mode of proof of adocument while limitations imposed by Sec. 92 relate only to theparties to the document. After the document has been producedto prove its terms under Sec. 91, provisions of Sec. 92 comeinto operation for the purpose of excluding evidence of any oralagreement or statement for the purpose of contradicting, varying,adding or subtracting from its terms. Secs.91 and 92 in effectsupplement each other. Sec. 91 would be inoperative without theaid of Sec. 92 and vice versa.

The two sections, however, differ in some materialparticulars. Sec. 91 applies to all documents, whether they purportto dispose of rights or not; whereas Sec. 92 applies to documentswhich can be described as dispositive. Sec. 91 applies todocuments, which are both bilateral and unilateral, unlike Sec.92, the application of which is confined to only bilateral documents.Both the sections are based on the “best evidence rule”, thusdeclaring a doctrine of substantive law. It would be inconvenientthat matters in writing made by advice and on consideration, andwhich finally import the truth of the agreement should becontrolled by the party’s memory. Even a third party if he wantsto establish a particular contract between certain others whensuch contract has been reduced to writing can only prove suchcontract by the production of such writing.

The grounds of exclusion of extrinsic evidence are: (i) toadmit inferior evidence when law requires superior would amountto nullifying the law, and (ii) when parties have deliberately puttheir agreement into writing, it is conclusively presumed, betweenthemselves and their privies, that they intended the writing toform a full and final statement of their intentions, and onewhich should be placed beyond the reach of future controversy,bad faith and treacherous memory.

This court in Gangabai v Chhabubai (AJR 1982 SC 20) andIshwarDassjain v SohanLal (AIR 2000 SC 426) with referenceto Sec. 92(1) held that it is permissible to a party to adeed tocontend that the deed was not intended to be acted upon, butwas only a sham document. The bar under Sec. 92 arises onlywhen the document is relied upon and its terms are sought tobe varied or contradicted. Oral evidence is admissible to showthat the document executed was never intended to operate as anagreement and that some other document was entered into betweenthe parties].

Comments– In IshawarDass Jain case (above), a mortgagor filed asuit for redemption. Oral evidence was sought to be given toprove that the mortgage deed, though executed, was not intendedto be acted upon and that it was a sham document executed onlyas a collateral security. Held that it would not amount to varyingor contradicting the terms of the document and would not behit by Sec.92.

In Parvinder Singh v Rena Gautam (2004) 4 SCC 794, it hasbeen held that oral evidence in departure from the terms of awritten deed is admissible to show that what is mentioned in thedeed was not the real transaction between the parties but that itwas something different. In R. Janakiraman v State (2006) 1 SCC697, the Apex Court clarified that Sec. 92 applies when a partyto the instrument seeks to disprove its terms, it does not applywhen anyone including a party to the instrument, seeks to establishthat the instrument itself is sham and fictitious, or nominal notintended to be acted upon. In Savitree Devi v State of Bihar (AIR1989 Pat. 327), the Patna High Court observed that effectivenessof a gift depends upon the fact that whether it has been actedupon. Hence, oral evidence can be given to show whether a giftdeed has been acted upon or not.

In S. Saktivel v M. VenugopalPillai (AIR 2000 SC 2633), thecourt observed that a disposition conferring title to property isrequired by law to be reduced to writing in order to ensure itsefficacy and effectiveness. The parties to the document cannotunder Sec. 92, proviso 4 be permitted to adduce oral evidenceto prove a subsequent agreement which has the result ofmodifying the written document especially when the documenthas been registered.

In Ramachandran v Y. ThevaNesomAmmal (AIR 2003 Mad.262), the sale-deed of property mentioned an amount ofconsideration. The vendor was not allowed to prove that realconsideration was agreed to be much more than what wasmentioned. In Bishwanath Prasad Singh v Rajendra Prasad (2006) 4SCC 432, in a sale of property with the condition of re-conveyancewithin a specified time, the seller failed to exercise the optionwithin the time delimited. He was not afterwards allowed to saythat the transaction was in essence a mortgage and he should beallowed to redeem it.

AMBIGUOUS DOCUMENTS

When a document is ambiguous i.e. either its language does not show theclear sense of the document or its application to facts creates doubts, howfar oral evidence can be allowed to clarify the language or to remove thedefect? Sections 93-98 lay down the rules as to interpretation of documentswith the aid of such ‘extrinsic evidence’ (evidence from the outside).

Ambiguities are of two kinds: ambiguitas patens i.e. patent ambiguity(Secs.93-94) and ambiguitaslatens i.e. latent ambiguity (Secs.95-97). Apatent ambiguity means a defect which is apparent on the face of thedocument. In such cases the principle is that oral evidence is not allowedto remove the defect. A latent defect implies a defect which is notapparent on the face of the record, but is in the application of thelanguage (used in the document) to the facts stated in it. The generalprinciple is that evidence can be given to remove such defects.

Sec. 93 (Exclusion of Evidence to Explain or Amend Ambiguous Document)

“When the language used in a document is, on its face, ambiguous ordefective, evidence may not be given of facts which would show itsmeaning or supply its defects.”

Illustrations: (a) A agrees, in writing, to sell a horse to B for Rs.1,000 orRs.1,500. Evidence cannot be given to show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of factswhich would show how they were meant to be filled.

The reason for the exclusion of evidence in such cases is that thedocument being clearly or apparently defective, this fact must be orcould’ve been known to the parties and if they did not care to removeit then it is too late to remove it when a dispute has arisen.

If the document had mentioned no price at all, oral evidence ofthe price could be allowed under Sec. 92 (2^ndproviso). While no extrinsicevidence can be given to remove patent defect, the court may, if it ispossible, fill up the gaps or blanks in a document with the help of theother contents of the document (e.g. where a lease deed left blanks at theplace of date, but in mother part it said that the first installment of rentwould be paid on a certain date).

Sec. 93 deals with the rules for construction of document with thehelp of extrinsic evidence or in other words with the interpretation ofdocuments by oral evidence.

Sec. 94 (Exclusion of Evidence against Application of Document to Existing Fact)

“When language used in a document is plain in itself, and when it appliesaccurately to existing facts, evidence may not be given to show that it wasnot meant to apply to such facts.”

Illustration: A sells to B, by deed “my estate at Rampur containing 100bighas.” A has an estate at Rampur containing 100 bighas. Evidence maynot be given of the fact that the estate meant to be sold was one situatedat a different place and of a different size.

Sec. 95 (Evidence as to Document Unmeaning In Reference to Existing Facts)

According to Sec. 95, when the language of a document is plain but inits application to existing facts it is meaningless, evidence can be given toshow how it was intended to apply to those facts. It is based on themaxim falsademonstratio non necet.

Illustration: A sells to B, by deed, “my house in Calcutta”. A had no housein Calcutta, but it appears that he had a house at Howrah, of which Bhad been in possession since the execution of the deed. These facts maybe proved to show that the deed related to the house at Howrah.

Sec. 95 is an instance of latent ambiguity. According to ‘Stephen’sDigest, evidence to show that common words, whose meaning is plain,not appearing from the contract to have been used in a peculiar sense,have been in fact so used, is not admissible. In North Eastern Railway v Hastings (1900) AC 260, it was held that written instruments if they areplain and unambiguous, must be construed according to the plain andunambiguous language of the instruments themselves.

Sec. 96 (Evidence as to Application of Language which can apply to One only of Several Persons)

According to Sec. 96, when the language of a document is clear and isintended to apply to only one thing or person, but in its application to theexisting facts it is difficult to say to which particular thing or person it wasintended to apply, evidence can be offered to clarify this matter.

Illustrations: (a) A agrees to sell to B, for Rs.1,000 “my white horse”. Ahas two white horses. Evidence may be given of the facts which showwhich of them was meant.

(b) A agrees to accompany B to Hyderabad. Evidence may be givenof facts showing whether Hyderabad in the Deccan or in the Sind wasmeant.

Where a pronote mentioned a date according to the local calendarand also according to the international calendar, the evidence could beoffered to show which date was meant. In one case, a Vakalatnama didnot contain the name of the pleader after the word “Mr.” in the printedform but bore the signature of the party as well as the pleader. Held thatthe ambiguity in the document was not patent but latent which could becleared up by extrinsic evidence under Sec. 96.

Sec. 97 (Evidence as to Application of Language to One of Two Sets of Facts)

According to Sec. 97, when the language of a document applies partly toone set of facts and partly to another, but does not apply accurately toeither, evidence can be given to show to which facts the document wasmeant to apply.

Illustration: A agrees to sell to B “my land at X in the occupation of Y.”A has land at X, but not in the occupation of Y, and he has land in theoccupation of Y, but it is not at X. Evidence may be given of factsshowing which he meant to sell.

Sec. 98 (Evidence as to Meaning of illegible Characters, etc.)

According to Sec. 98, evidence may be given to show the meaning ofillegible or not commonly intelligible characters of foreign, obsolete,technical, local and provincial expression, of abbreviations and of wordsused in a peculiar sense.

Illustration: A, a sculptor, agrees to sell to B, “all my models”, A has bothmodels and modelling tools. Evidence may be given to show which hemeant to sell. Thus, oral evidence is permissible for the purpose ofexplaining artistic words and symbols used in a document.

Sec. 99 (Evidence by Non-Parties)

“Persons who are not parties to document, or their representative-in-interest, may give evidence of any fact tending to show a contemporaneousagreement varying the terms of the document”. It may be noted that theparties to a document or their representative-in-interest cannot give evidenceof a contemporary agreement varying the terms of the document (Sec.92). But, Sec. 99 provides that a third party can give evidence of suchan oral agreement if he is affected by it.

Illustration: A and B make a contract in writing that B shall sell A certaincotton, to bepaid for on delivery. At the same time, they make an oralagreement that 3 months’ credit shall be given to A. This could not beshown as between A and B, butit might be shown by C, if it affectedhis interests.

Sec. 100 (Saving of Provisions of Indian Succession Act relating to Wills)

“Nothing in this Chapter contained shall be taken to affect any of theprovisions of the Indian Succession Act (X of 1865) as to the constructionof wills.”

It may be noted that Indian Succession Act, 1865 has been replacedby the Act of 1925.

EVIDENCE

PRELIMINARY

1. Secondary evidence is admissible

(a) where the non-production of primary evidence has not been accounted for

(b)where the non-production of primary evidence has been accounted for

(c) irrespective of whether the non-production of primary evidence has been accounted for or not

(d) both (a) & (c) are correct

2.Oral account of the contents of a document is admissible

(a) when given by a person who has seen & read the document

(b) when given by a person who has seen but not read the document

(c) when given by a person to whom the document was read over

(d) when given by any of the above.

3.A document required by law to be attested can be proved under section 68 of Evidence Act only

(a) by calling both the attesting witnesses

(b)by calling at least one of the attesting witnesses

(c) by calling none of the attesting witnesses but by calling some other person who has the knowledge of the contents

(d) all of the above are correct.

4.The calling of at least one attesting witness to prove a document under section 68 is not necessary

(a) when the document other than a will is registered under the Indian Registration Act, 1908

(b) when the document including Will is registered under the Indian Registration Act, 1908

(c) when the document irrespective of whether it is a Will, is registered under the Indian Registration Act, 1908

(d) both (b) & (c) are correct.

5.A will is required to be proved by calling at least one attesting witness

(a) when it is registered

(b) when it is unregistered

(c) when it is admitted

(d) all of the above.

6.Public documents are mentioned in

(a) section 72 of Evidence Act

(b) section 73 of Evidence Act

(c) section 74 of Evidence Act

(d) section 75 of Evidence Act.

7.Documents which are not covered under section 74 of Evidence Act are called

(a) semi-public documents

(b) quasi-public documents

(c) private documents

(d) all the above.

8.Maxim ‘omnia proesumuntur rite esse acta’ means

(a) all acts are presumed to be rightly done

(b) all acts are presumed to be not rightly done

(c) all acts are presumed to be wrongly done

(d) all acts are presumed to be not wrongly done.

9.Admissibility of electronic record has been prescribed under

(a) section 65 of Evidence Act

(b) section 65A of Evidence Act

(c) section 65B of Evidence Act

(d) section 66 of Evidence Act.

10.Principle of ‘onmia proesumuntur rite esse acta’ is contained in

(a) section 78 of Evidence Act

(b) section 79 of Evidence Act

(c) section 80 of Evidence Act

(d) section 81 of Evidence Act.

LECTURE NOTE EVIDENCE

SECTION 65A AND 65B

MAINS

 

1. What are special provisions in the Indian Evidence Act, 1872 regarding admissibility of electronic record? In what circumstances, information contained in electronic record can be accepted in evidence in the proceedings before a Court? Discuss with reference to relevant provisions.

2. Discuss the provisions relating to admissibility of electronic records in evidence as per provisions of Indian Evidence Act, 1872.

3. Write short note on admissibility and appraisal of electronic evidence.

4. Oral admission-as to contents of electronic records and its relevancy.

5. How may contents of electronic records be proved and how it become admissible in any proceedings?

PAHUJA LAW ACADEMY

SECTION 65A AND 65B

ADMISSIBILITY OF ELECTRONIC RECORDS:

– The Indian Evidence Act has been amended by virtue of Section 92 of Information Technology Act, 2000 (Before amendment). Section 3 of the Act was amended and the phrase “All documents produced for the inspection of the Court” were substituted by “All documents including electronic records produced for the inspection of the Court”. Regarding the documentary evidence, in Section 59, for the words “Content of documents” the words “Content of documents or electronic records” have been substituted and Section 65A & 65B were inserted to incorporate the admissibility of electronic evidence.

– In Section 61 to 65, the word “Document or content of documents” have not been replaced by the word “Electronic documents or content of electronic documents”. Thus, the intention of the legislature is explicitly clear i.e. not to extend the applicability of section 61 to 65 to the electronic record. It is the cardinal principle of interpretation that if the legislature has omitted to use any word, the presumption is that the omission is intentional. It is well settled that the Legislature does not use any word unnecessarily.

– The main objective to introduce the specific provision has its origin to the technical nature of the evidence particularly as the evidence in the electronic form cannot be produced in the court of law owing to the size of computer/server, residing in the machine language and thus, requiring the interpreter to read the same. The Section 65B of the Evidence Act makes the secondary copy in the form of computer output comprising of printout or the data copied on electronic/magnetic media. This contention is further strengthened by the insertion of Section 65A & 65B and the words “Notwithstanding anything contained in this Act” which is a non-obstante clause, further fortifies the fact that the legislature has intended the production or exhibition of the electronic records by Section 65A & 65B only. A non-obstante clause is generally appended to a Section with a view to give the enacting part of the Section, in case of conflict, an overriding effect over the provision in the same or other act mentioned in the non-obstante clause. It is equivalent to saying that despite of the provisions or act mentioned in the non-obstante clause, the provision following it will have its full operation or the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment or the provision in which the non-obstante clause occurs.

– ANVAR P.V. VERSUS , P.K. BASHEER AND OTHERS

– In this significant judgment, the Supreme Court has settled the controversies arising from the various conflicting judgments as well as the practices being followed in the various High Courts and the Trial Courts as to the admissibility of the Electronic Evidences. The Court has interpreted the Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary data in CD/DVD/Pen Drive are not admissible without a certificate U/s 65 B(4) of Evidence Act. It has been elucidated that electronic evidence without certificate U/s 65B cannot be proved by oral evidence and also the opinion of the expert U/s 45A Evidence Act cannot be resorted to make such electronic evidence admissible.

– The judgment would have serious implications in all the cases where the prosecution relies on the electronic data and particularly in the cases of anticorruption where the reliance is being placed on the audio-video recordings which are being forwarded in the form of CD/DVD to the Court. In all such cases, where the CD/DVD are being forwarded without a certificate U/s 65B Evidence Act, such CD/DVD are not admissible in evidence and further expert opinion as to their genuineness cannot be looked into by the Court as evident from the Supreme Court Judgment.

– It was further observed that all these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic records sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

– In the aforesaid Judgment, the Court has held that Section 65B of the Evidence Act being a ‘non obstante clause’ would override the general law on secondary evidence under Section 63 and 65 of the Evidence Act. The Section 63 and Section 65 of the Evidence Act have no application to the secondary evidence of the electronic evidence and same shall be wholly governed by the Section 65A and 65B of the Evidence Act.

–  To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[(2005), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

– The only options to prove the electronic record/evidence is by producing the original electronic media as Primary Evidence court or it’s copy by way secondary evidence U/s 65A/65B of Evidence Act.

– Thus, in the case of CD, DVD, Memory Card etc. containing secondary evidence, the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

– The requirement of certification applies only to the secondary electronic evidence and not to the original electronic evidence.

Evidence recorded through video conferencing:

– State of Maharashtra v Praful B. Desai

– R.M. Malkhani v state Maharashtra

PAHUJA LAW ACADEMY

SECTION 65A AND 65B

ADMISSIBILITY OF ELECTRONIC RECORDS:

1. The contents of electronic records may be proved in accordance with the provisions of section……… of the Indian Evidence Act.

(a) Section 65B

(b) Section 66B

(c) Section 67B

(d) Section 68B

2. ‘Irrespective of the compliance with the requirements of section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, section 63 and section 65’. The statement is……….

(a) True

(b) False

(c) Partly Correct

(d) None of the above

3. Which of the following sections of the Indian Evidence Act was inserted by the Information Technology Act, 2000?

(a) Section 65A

(b) Section 65B

(c) Section 64A

(d) Both (a) and (b)

4. Which of the following shall be deemed to be a document as provided under section 65B of the Indian Evidence Act?

(a) Any information contained in an electronic record produced by a computer which is printed on a paper

(b) Any information contained in an electronic record which is stored, recorded or copied in optical or magnetic media produced by a computer.

(c) Both (a) and (b)

(d) None of the above