A Study on the Rule of Best Evidence
Symbiosis Law School, NOIDA
|THE BEST EVIDENCE RULE………………………………………….…
iii. Section 91 & 92 of Indian Evidence Act
|TYPES OF EVIDENCE……………………………………………………
i. Oral Evidence
a. Direct Evidence
b. Indirect Evidence
ii. Documentary Evidence
a. Primary Evidence
b. Secondary Evidence
|LIST OF ABBREVIATION|
|The Act||Indian Evidence Act, 1872|
|SCC||Supreme Court Cases|
|AIR||All India Reporter|
TABLE OF CASES
|Bai Hira Devi vs. Official Assignee AIR 1955 Bom 122
Ford v. Hopkins (1700) 91 Eng. Rep. 250, 250-51 (K.B.)
Chandrawati v. Lakhmi Chand, AIR 1988 Delhi 13
Javarsetty v. Nongamma, AIR. 1992 Kant. 160.
Lakshmamma v. Riyaz Khan, AIR 2003 Kant 197
Lakshamaiah vs. Saropamma, AIR 2004 NOC 59 (Kant.)
Leelamma Ambika kumari vs. Narayanan, AIR 1992 Ker 115
Mumbai International Airport (P) Ltd. vs. Golden Chariot Airport (2012) 10 SCC 422
Mathoora Pande vs. Ram R. Tewaree, 11WR 482
Raman Pillai vs. Kumaran Parameswaram A.I.R. 2002 Ker. 133
Ramprasad vs. Raghunandad Prasad, (1885) 7 ALL 138 (143)
Roop Kumar vs. Mohan Thedani (2003) 6 SCC 595
Taburi Sahai v. Jhunjhunwala AIR 1967 SC 106
Tex India vs. Punjab and Sind Bank, AIR 2003 Bom 444.
Tulsi vs. Chandrika Prasad (2006) 8 SCC 322
Village Panchayat vs. Lt. Governor of Goa, Daman & Diu, AIR 1972 Goa
The thesis shall follow a theoretical research methodology. The primary research question is to interpret the rule as put forward by the statutes and case laws in the Indian legal regime.
OBJECTIVE OF STUDY
- To understand the concept & importance of the Rule of Best Evidence.
- To comprehend the sections of the Indian Evidence Act, 1872 with respect to the Rule of Best Evidence.
SCOPE OF THE PROJECT
The scope of the project shall be limited to the evidences orally & documentarily given.
The Best Evidence Rule iterates that the secondary evidence won’t be applicable if the primary evidence exists. For Example, the rule applies when a party wants to admit as evidence the contents of a document at trial, but that the original document is not available. In this case, the party must provide an acceptable excuse for its absence. If the document itself is not available, and the court finds the excuse provided acceptable, then the party is allowed to use secondary evidence to prove the contents of the document and have it as admissible evidence.
The word ‘evidence’ is used in common parlance in three different senses:
(a) as equivalent to relevant
(b) as equivalent to proof and
(c) as equivalent to the material,
on the basis of which courts come to a conclusion about the existence or non-existence of disputed facts. However, The Evidence has been classified into two types under Section 3 Interpretation Clause of the Indian Evidence Act of 1872 (further referred to as “Act”). Where Evidence means and includes:
- Oral Evidence: All statements which the court permits or requires to be made before it by witnesses
- Documentary Evidence: All documents including electronic records produced for the inspection of the Court.
- BEST EVIDENCE RULE
The ancestors of the current population of England were mostly illiterate and thus, for their own benefit, they emphasized great importance on ceremony and viewed written documents affecting property or contractual rights not as mere expressions of those rights, but as the rights themselves While this mindset eventually disappeared entirety around the early 1800s, it penetrated its way into evidence law, setting the stage for the doctrine of Best Evidence Rule (which was, at that time, also known as the Original Document Rule.)
The above mentioned Rule was first looked upon in Ford v. Hopkins in which the proponent of evidence concerning the contents of a written document had to produce the original document or a reasonable and believable reason for its nonproduction. Courts applied this Best Evidence Rule with an understanding and with given importance of the verbatim language of the law believing that a slight variation of words may mean a great difference in rights.
The Rule specifies that the best evidence existing in a particular case and available, according to what the circumstances would allow or the party will be able to produce, ought to be produced. The best or original evidence means primary evidence. The rule excludes secondary evidence. In Roop Kumar vs. Mohan Thedani the Court laid down the parameters of best evidence rule in the following terms: “Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as the “best-evidence rule”
Where the fact to be proved is embodied in a document, the document is the best evidence of the fact. Such fact should, therefore, be proved by the document itself, that is, by the primary or secondary evidence of the document. According to the HC of Delhi, it did not permit oral evidence of the contents of a partition deed which deed was inadmissible being not registered. Once it is shown that the original document is not admissible in evidence because of insufficiency of stamps, secondary evidence by way of oral statement or photocopy cannot be allowed. Allowing the party to confront the witnesses with photocopy of such evidence was held to be not permissible.
- SECTION 91 & 92
Section 91 relates to evidence of terms of contracts, grants and other disposition of properties reduced to the form of document. Whereas, Section 92 articulates that when such act has been done u/Sec. 91 no evidence or any oral agreement shall be admitted as between the parties to any such document or their representatives-in-interest, for the purpose of contradicting, varying, adding or subtracting from its terms. These sections are based on “best evidence rule”. The rule can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the documents except in cases where secondary evidence is allowed to be led under the relevant provision of the Act.
In Mumbai International Airport (P) Ltd. vs. Golden Chariot Airport, it was held that when written documents are there, any oral assurance, which purports to contradict the written documents need not be considered.
In Tulsi vs. Chandrika Prasad, the SC held that Section 91 of the act mainly forbids proving of the contents of a writing otherwise than by writing itself and merely lays down the best evidence rule.
The rule doesn’t prohibit the parties to adduce evidence in a case the deed is capable of being construed differently to show how they understood the same.
These sections are supplementary in nature i.e., inoperative without each other’s aid. However, few distinctions are: Section 91 applies to documents which are both bilateral & unilateral. It deals with exclusiveness of the documentary evidence and with the proof of matters dealt in this section. While, section 92 applies only to bilateral documents and doesn’t apply to strangers who are not bound or affected by the terms of document. It deals with conclusiveness of the documentary evidence and with disproof of matters dealt in section 91.
The SC held in Taburi Sahai v. Jhunjhunwala, that a deed of the adoption of child is not a contract within the meaning of section 91 and, therefore, the fact of adoption can be proved by any evidence apart from the deed.
The amount which appeared due on a promissory note was not allowed to be contradicted by showing that the promise had only agreed it need not be paid. The court followed Bai Hira Devi vs. Official Assignee where it was held that “in the case of a conveyance, it would not be open to either of the parties to the document to prove that, if the consideration was mentioned as Rs. 10,000, in fact the consideration was less or more.”
Where both oral as well as documentary evidence are admissible on their own merits and have been admitted, the court may go by the evidence which seems to be more reliable. There is nothing in the act requiring that the documentary evidence should prevail over the oral evidence.
The rule is in reality declaring a doctrine of the substantive law. It doesn’t exclude certain data because they are for one or other reason undependable or objectionable means of evidencing some fact to be proved. This results in forbidding the fact to be proved at all.
TYPES OF EVIDENCE
1. ORAL EVIDENCE: Sections 59 & 60 of the act deals with the evidence which is confined to words spoken by mouth. This Evidence, if worthy of credit, is sufficient without documentary evidence to prove a fact or title. The communication may be made my any mode depending upon the facts of the case of the physical condition of the witness, if Court deems fit. The rule is to judge the oral evidence with reference to the conduct of parties, and presumptions & possibilities legitimately arising in the case. Press Reports are not substantive evidence of the statements made and, as such, are inadmissible. The credibility of the witness should be decided on following:
Whether the witness have the means of gaining correct information
Whether they have any interest in concealing the truth
Whether they agree in their testimony.
This evidence should be approached with caution. The court must shift the evidence, separate the grain from the chaff and accept what it finds to be true and reject the rest. The modes of proof are:
- DIRECT EVIDENCE is the evidence in which the witness gives it on the basis of his own perception. It is the best oral evidence for the fact to be proved. The liability of authenticity for the evidence is on person who is giving it. He shall be available for cross examination for testing its authenticity. The source of this evidence is the person who is present in court and giving evidence.
- INDIRECT EVIDENCE requires an inference to be made between the evidence and the conclusion to be drawn from it. It is secondary and is admitted in exceptional cases. The evidence per se carries no weight until and unless it is combined with other evidence to arrive at an answer or construct an argument for the conclusion.
2. DOCUMENTARY EVIDENCE: Sections 61-90 of the act deals with the evidence where any matter expressed or described upon any substance by means of letters, figures or marks by more than one of those means intended to be used or which may be used for the purpose of recording the matter.
In India the rule is the same as in England. The section means that there no other method allowed by law for providing the contents of a document except by the primary or the secondary evidence. Where admissions were made in a written statement by the plaintiff’s predecessors in interest which was filed in several judicial proceedings regarding the rights in the suit property, a certified copy of the written statement was held to be admissible in proof of the settled rights to the property. Where the document carried adhesive stamps which belonged to a period prior to six months from the date of purchase, the court said that such document could not be attached in evidence, it would have been admissible if it was not creative of any rights in favor of any party and merely recorded something. An unregistered family settlement deed was held to admissible strictly for collateral purposes only.
The modes of proof of contents of documents are:
- PRIMARY EVIDENCE consists of the original document, which is presented to the court for inspection. This evidence is the best evidence in all circumstances. The general rule talks about giving primary evidence. No procedure of notice is required before giving evidence. Its importance is highest.
- SECONDARY EVIDENCE consists of the document which is not an original document. Though it is not best evidence but is evidence of secondary nature and is admitted in exceptional circumstance. It is an exception to the general rule. The procedure of notice is required to be followed before giving such evidence. Its value is not as that of primary evidence.
Even though the presence of an existing written agreement is attached utmost significance if it acts as evidence due to the principle of Best Evidence Rule. So, the best possible and available evidence compulsorily be produced, there are exceptions to such a rule provided statutorily.
Sections 91 and 92 require the production of documents to completely and satisfactorily prove a contract, the Provisos to the latter act as rules of exceptions to the exclusion of oral evidence due to the presence of documentary evidence. The conditions take into consideration several scenarios where the parties may not have taken into account some situations while writing the contract, or situations which are so obvious that they do not need to be written, and provide an opportunity to parties to adduce evidence even outside the bounds of the contract. However, any oral evidence can be permitted only if it supports or seeks to enforce the terms within the written contract and not if it desires to contradict or oppose the written provisions.
The phrase best evidence is now exclusively associated with this rule that when the contents of the writing are to be proved, the writing itself must be produced before the court or its absence accounted for before testimony t its contents is admitted. It has been a flexible rule which wherever the written instruments are appointed, either by the requirement of law or by the contract of the parties to be the repositories & memorials of truth, any other evidence is excluded from being used either as substitute or to contradict such instruments.
Batuk Lal, Textbook on The Law of Evidence, 20th Edn. (Allahabad: Central Law Agency, 2013)
- Monir, Textbook on The Law of Evidence, 9th Edn. (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2013)
Colin Miller, Evidence: Best Evidence Rule, Version 1 (US: CALI eLangdell Press, 2012)
John H. Langbein “Historical Foundations Of The Law Of Evidence: A View From The Ryder Sources”, 1996 (96 Colum. L. Rev. 1168-1202).
Cynthia A. DeSilva, California’s Best Evidence Rule Repeal: Toward a Greater Appreciation for Secondary Evidence, 1999 (30 MCGEORGE L. REV. 646-648).
 Cynthia A. DeSilva, California’s Best Evidence Rule Repeal: Toward a Greater Appreciation for Secondary Evidence.
 (1700) 91 Eng. Rep. 250, 250-51 (K.B.);
FACTS: If the proponent could neither produce the original document nor provide a satisfactory reason for its nonproduction, he could not prove the contents of the document through secondary evidence such as witness testimony or a handwritten copy.
 (2003) 6 SCC 595
 Chandrawati v. Lakhmi Chand, AIR 1988 Delhi 13
 Lakshmamma v. Riyaz Khan, AIR 2003 Kant 197
 The Act
 (2012) 10 SCC 422
 (2006) 8 SCC 322
 AIR 1967 SC 106
 Leelamma Ambikakumari vs. Narayanan, AIR 1992 Ker 115
 AIR 1955 Bom 122
 Javarsetty v. Nongamma, AIR. 1992 Kant. 160.
 “Evidence” means and includes :
- All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence.
- All documents including records produced for the inspection of the Court
such documents are called documentary evidence.
 Mathoora Pande vs. Ram R. Tewaree, 11WR 482
 Village Panchayat vs. Lt. Governor of Goa, Daman & Diu, AIR 1972 Goa
 Ramprasad vs. Raghunandad Prasad, (1885) 7 ALL 138 (143)
 Raman Pillai vs. Kumaran Parameswaram A.I.R. 2002 Ker. 133
 Tex India vs. Punjab and Sind Bank, AIR 2003 Bom 444.
 Lakshamaiah vs. Saropamma, AIR 2004 NOC 59 (Kant.)
 U/Sec. 62 of the Act
 U/Sec. 63 of the Act
 List provided in u/Sec. 68 of the Act