Introduction

The law of evidence is cardinally based on three principles:

• All the evidence must only be confined to the matter in issue;
• Hearsay Evidence is no evidence; and
• Best evidence rule, i.e., best evidence should be given in all cases.

When it comes to the Best Evidence Rule, it is also an accepted principle that whenever there is an existence of written documents, they shall be produced as they are the best evidence of their contents[1]. This rule is incorporated under Section 94 of Bharatiya Sakshya Adhiniyam, 2023 (BSA, 2023), which is further complimented by Section 95. Further, Sections 96 – 102 provides for the certain rules of construction of such documents.

The rule of Best Evidence does not require the greatest amount of evidence regarding any fact; its purpose is to prevent the submission of evidence that, by its nature, implies that better evidence is in the party’s possession. It is adopted to prevent fraud, for when better evidence is withheld, it is reasonable to assume that the party has a malicious motive for not producing it, and that if such evidence were offered, his design would be defeated. Consequently, this rule is essential to the pure administration of justice.[2]

Following is an analysis of provision contained under chapter VI of the BSA, 2023, containing provisions regarding “exclusion of oral evidence by documentary evidence”. (All the sections as are hereinafter mentioned pertains to the BSA, 2023, unless a different statute is being referred to.)

Primary rules

Evidence of “terms” reduced in form of a document- Section 94

Whenever a transaction is being reduced in writing, whether by an agreement or by operation of law, such writing becomes the exclusive memorial, no other evidence can be adduced for proving such transaction except the document itself or any other secondary evidence which the law may allow to be adduced. It is based upon the principle of best evidence rule.

This section does lays down the best evidence rule, however, it does not prohibit any other evidence through which the parties may show how they interpreted the document, in cases where such document is capable of being construed differently.[3]

As per this section,

1. Where the terms of
   1. Contract,
   2. Grant, or
   3. Any disposition of property has been reduced in the form of a writing; or
2. Where any such matter is required by law to be reduced in the form of a document,

then in such case Document itself, or Secondary evidence of its contents (wherever allowed) must be adduced as evidence.

First part refers to a transaction which is reduced in writing voluntarily, while the second part refers to a situation where the law requires such matter to be reduced in writing.

The provision also further provides 2 exceptions to the aforementioned rules. These are:

1.  Where any law provides that a public officer must be appointed in writing, and it is shown that any person has acted such officer, it will not be necessary to prove the writing.
2. In India, wherever a will is admitted to probate, it may be proved by such probate.

The general rule as provided in this section is also further subject to rules as are laid down in Sections 98 to 102. Further, this section also has no application in cases where the writing is not evidence of the matter so being reduced to writing.

Further, it has also been held that an agreement referring a dispute to an arbitrator is a contract within the meaning of section 94.[4] It may be noted that as per Section 1 of BSA, it is not applicable to arbitration proceedings, however, it does apply to arbitration agreements.[5] Further, the oral evidence as is referred to in this section is not merely limited to the one to be led by the adverse party, in form of chief examination, but also includes cross-examination of witness by opposite party.[6]

This Section only prohibits the oral evidence regarding the terms of the contract and not the oral evidence as to the nature of the contract or the oral agreement entered into simultaneously along with the document. In cases where there is ambiguity with respect to the language or recitals of the document, intention of parties may be ascertained by the means of extrinsic evidence.[7]

Further, as per explanation 3 (as illustrated by illustrations (d) and (e)), when the contents of a document are the subject of dispute—whether as fact in issue or a sub-alternate principal fact—the document itself is regarded as the best evidence, and any secondary evidence is not accepted unless there is a justified explanation for such unavailability of the document. However, if the written document is not the fact in issue but is merely used to support another fact, then independent evidence from other sources is admissible.[8]

Terms

The expression “terms” as is referred in Section 94 and 95 is in relation to “statements, assertions or representations contained in a written contract which relate to the subject-matter of the contract and to something to be done or not to be done under the contract, and has no application to a provision in the nature of a condition precedent to the very existence or formation of a contract.”[9]

Hence, where the terms of a contract of sale is uncertain and for which specific performance is sought, oral evidence cannot be allowed to be adduced for adding to its terms.[10] Further, as is held in B Bhat[11], this expression has no application in case of a statement in writing which is in the nature of a condition precedent to the formation of a contract. 

Matter required by law to be reduced in form of a document

Where there is a matter which is required by law to be reduced in form of a document (such as a lease deed, sale deed, mortgages, wills, etc.), then such document must itself be adduced in evidence and no other evidence can be allowed for as long as such writing exists.

For instance, a judgment convicting an accused must be in writing and, therefore, is a matter required by law to be reduced in form of a document. Such a matter can be proved by adducing the document itself, or in case where law permits, by means of secondary evidence. Hence, unless there is any indication that the original judgment relating to the previous conviction is lost or cannot be procured, oral evidence cannot be adduced for proving such previous conviction.[12]

A document which is, by law, required to be registered, if unregistered, cannot be adduced as evidence for proving a transaction involving immovable property; however, it may be admitted for a collateral purpose. For instance, an unregistered partition deed cannot be relied upon for establishing the specific terms of the partition, but it can still be used to demonstrate collateral facts. This is due to the combined effect of Section 49 of the Registration Act, 1908, and Sections 91 and 92 of the Evidence Act, 1872.[13] In such cases, the unregistered document may be examined to determine the nature and extent of the party’s possession.[14]

Exclusion of evidence with respect to oral agreements – Section 95

This section further provides for certain grounds for exclusion of extrinsic evidence. It provides that:

1. Where the terms of a
   1. Contract;
   2. Grant;
   3. Any other disposition of property, having been reduced in form of a document, or
2. Where any matter which is required by law to be reduced in form of a document is proved by production of such document or by secondary evidence (wherever allowed),

no evidence shall be allowed of any oral agreement or any statement as between the parties to such document or their representatives in interest, for

1. Contradicting,
2. Varying,
3. Adding to, or
4. Subtracting from,

its terms.

Further, there are also 6 exceptions to this rule as are appended therein in form of provisos. These are –

1. Any fact which is invalidating any document or entitling any person to a decree or order can be proved (such as fraud, illegality, mistake of fact or law, etc.)
2. Any separate oral agreement may be proved purporting to any of the matter upon which the document is silent, and which is not inconstant with the terms of the document.
3. Any separate oral agreement which serves as a condition precedent for challenging any obligation under the document may be admitted as evidence.
4. Any oral agreement entered subsequently for the purpose of rescinding or modifying such contract, grant or disposition may be proved, unless such grant or contract is required by law to be in writing or is registered.
5. Any customary practice or usage by which additional terms are normally attached to a contract—even if not explicitly stated—may be adduced as evidence, provided that they do not conflict with the express terms of the contract.
6. Any fact which demonstrates how the language of the document relates to the existing facts may be proved.

Although Sir James Stephen^[15] has discussed sections 94 and 95 under the same head (the parole evidence), there is some difference between the two. Section 94 deals with the exclusiveness of documentary evidence while Section 95, on the other hand, deals with the conclusiveness of the documentary evidence. The hon’ble Supreme Court has also in the case of Bai Hira Devi v Official Assignee of Bombay^[16] pointed out the difference between sections 94 and 95 as:

Section 91 of the Evidence Act, 1872 relies on what is commonly known as the “best evidence rule”. Under Section 91, the document must be produced to prove what it contains. Only after this document has been introduced does Section 92 take effect, preventing any oral agreements or statements from being used to contradict, alter, add to, or subtract from the document’s terms. In essence, Sections 91 and 92 work hand in hand—Section 91’s efficacy is dependent on Section 92, and vice versa. However, there are key differences: Section 91 applies to all documents regardless of whether they are intended to dispose of rights, while Section 92 is limited to documents that deal with the disposition of property. Additionally, Section 91 covers both bilateral and unilateral documents and is not restricted to the parties who executed the document, whereas Section 92 is applicable only among the parties to the document or their representatives.

The provisions of Sections 94 and 95 allow evidence to be adduced for invalidating the document itself. The document is considered the best proof of its contents, and its production is what is required by this section for proving its contents. Section 91 sets out the “best evidence rule,” while Section 92 serves to exclude any oral agreements or statements that might contradict, modify, add to, or subtract from the document’s terms. Despite their complementary nature, the two sections differ in material particulars.[17]

Further, the grounds for the exclusion of extrinsic evidence are twofold:

•  to avoid admitting inferior evidence when the law requires superior evidence, as doing so would nullify the law, and
• when parties have deliberately reduced their agreement to writing, it is conclusively presumed—both among themselves and their privies—that they intended the writing to be a full and final statement of their intentions, thereby placing it beyond the reach of any dispute arising in future, or bad faith.[18]

Other provisions

Sections 96 to 102 are laid down as rules for the interpretation of the documents with the aid of oral evidence. Hence, where the language of a document is ambiguous, the admissibility of extraneous evidence is governed by the provisions as are set forth under Section 96 and Sections 98–102.[19]

The rule about admission or exclusion of extrinsic evidence is laid down under section 96 to 102. Such exclusion or admission of extrinsic evidence is in connection with the facts contained in a document which either a contract or not. Further, the ambiguity in the language of a document can be divided into two categories:

• Patent ambiguity (ambiguitas patens): when the language of the document or deed is uncertain.
• Latent ambiguity (ambiguitas latens): an ambiguity which is not present in the deed but it arises due to extrinsic factors.

These provisions are as follows:

• Whenever the language of a document is prima facie either ambiguous or defective, evidence cannot be adduced of facts which would show its meaning or which would supply to such defects. (Section 96)
• Whenever the language of a document is plain in itself and does not show any ambiguity with respect to the existing facts, no evidence can be adduced to show that it was not meant to apply to such facts. (Section 97) it is based upon the general principle that words should be given their natural meaning unless it results in absurdity.[20]
• Where the language of a document is plain in itself, however, such language is meaningless with respect to the existing facts, evidence may be adduced for showing that it was used in a peculiar sense. (Section 98) it is based upon the principle of falsa demonstratio non nocet, meaning that a false description does not vitiate the document.
• Where the facts are such that the language of a document might have meant to apply to any of such facts and not to more than one of several persons or things, evidence may be adduced of facts which suggests as to which of such persons or things it was intended to be applied. (Section 99)
• Where the language used in a document applies partially to one set of existing facts and partially to another, but does not fully apply to either, evidence may be adduced to indicate as to which of the two it was intended to refer to. (Section 100) this section is also based on principle of falsa demonstratio non nocet.
• Evidence may be given to clarify the meaning of characters that are illegible or not commonly intelligible, as well as foreign, obsolete, technical, local, and regional expressions, abbreviations, and words used in a peculiar sense. (Section 101)
• Persons who are not party to a document, or their representatives in interest, may adduce evidence of any facts which tend to show a contemporaneous agreement altering the terms contained in a document. (Section 102)

CONCLUSION

The provisions relating to exclusion of oral evidence by documentary evidence as are provided under Sections 94 to 102 are rooted in the best evidence rule. these provisions mandate that the terms of contracts, grants, or property dispositions—when reduced to writing—must be proved exclusively through the document itself or its secondary evidence. This helps in minimizing ambiguities, curtailing fraudulent claims, and ensuring transactional certainty by prioritizing documentary evidence over oral assertions

Sections 94 and 95 are complimentary to each other – Section 94 provides for the exclusiveness of documentary evidence while Section 95 provides for the conclusiveness of the documentary evidence. Subsequent Section (Sections 96 to 102) further provides for the rules of interpretation of these documents.

By mandating documentary evidence for certain cases and allowing oral evidence only in cases where justified, these provisions are included with an objective to expediate the process and further the interest of justice.

Reference

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[1] Taylor on Evidence, 12^th Edition, Section 391, p 272.

[2] Entisham Ali v Jamna Prasad, (1922) 24 Bom LR 675.

[3] Tulsi v Chandrika Prasad, AIR 2006 SC 3359.

[4] Radha Kishan v Sapattar Singh, AIR 1957 All 406

[5] Bengal Jute Mill Co v Lalchand Dugar, AIR 1963 Cal 405.

[6] Nandam Mohanamma v Markonda Narasimha Rao, AIR 2006 AP 8.

[7] Jayalakshmi Trading Co v Krishnamurthy, AIR 2006 Mad 179.

[8] Best on Evidence, 2nd Edn, p 282.

[9] PB Bhat v VR Thakkar, (1972) 74 Bom LR 509.

[10] Phuljhari Devi v Mithailal, AIR 1971 All 494.

[11] B Bhatt v VR Thakkar, AIR 1972 Bom 365 .

[12] City Board Sharanpur v Abdul Wahid, AIR 1959 All 695.

[13] Ramayya v Achhamma, AIR 1944 Mad 550 (FB); Girija v Girdhari, AIR 1951 Pat 277; Nagamma v Madala, AIR 1954 Mad 165; Karshan v Harkha, AIR 1953 Saurashtra 56.

[14] Rahimansa vM I E Institution, AIR 1953 Mad 366.

[15] Sir James Stephen in his digest, 7th Edn, Article 90, p 98.

[16] Bai Hira Devi v Official Assignee of Bombay, AIR 1958 SC 448.

[17] Central Bureau of Investigation v Ashok Kumar Aggarwal, AIR 2014 SC 827.

[18] Roop Kumar v Mohan Thedani, AIR 2003 SC 2418.

[19] Belapur Co Ltd v Maharashtra State Farming Corp, AIR 1969 Bom 231.

[20] Great Western Ry v Bristol Corp, (1918) 87 LJ Ch 414.