Evidence Law

Exclusion of Oral Evidence by Documentary Evidence

“Exclusion of Oral Evidence by Documentary Evidence”

By

Sahil Tandon

Symbiosis Law School, NOIDA

INTRODUCTION

The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act does not claim to be exhaustive and is procedural law. The Act consolidates, defines and amends the laws of evidence. It is a special law and hence, will not be affected by any other enactment containing provisions on matter of evidence unless and until it is expressly stated in such enactment or it has been repealed or annulled by another statute. Parties cannot contract to exclude the provisions of the Act. Courts cannot exclude relevant evidence made relevant under the Act. Similarly, evidence excluded by the Act will be inadmissible even if essential to ascertain the truth.The object of every judicial investigation is the enforcement of a right or liability that depends on certain facts. The law of evidence can be called the system of rules whereby the questions of fact in a particular case can be ascertained.

The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that mean ‘to show clearly, to discover, to ascertain or to prove.’

Evidence includes everything that is used to determine or demonstrate the truth. Giving or procuring evidence is the process of using those things that are either (a) presumed to be true, or (b) which were proved by evidence, to demonstrate an assertion’s truth. In law, the production and presentation of evidence depends first on establishing on whom the burden of proof lays. Admissible evidence is that which a court receives and considers for the purposes of deciding a particular case. It is important to prove that the evidences produced in the court are true.[1]

TYPES OF EVIDENCES

Following are the types of evidences:

(a)Oral Evidence- Section 60 of the Indian Evidence Act, 1872 prescribed the provision of recording oral evidence. All those statements which the court permits or expects the witnesses to make in his presence regarding the truth of the facts are called Oral Evidence. Oral Evidence is that evidence which the witness has personally seen or heard. Oral evidence must always be direct or positive. Evidence is direct when it goes straight to establish the main fact in issue.[2]

(b)Documentary Evidence- Section 3 of The Indian Evidence Act says that all those documents which are presented in the court for inspection such documents are called documentary evidences. In a case like this it is the documentary evidence that would show the actual attitude of the parties and their consciousness regarding the custom is more important than any oral evidence.

(c)Primary Evidence-Section 62 of The Indian Evidence Act says Primary Evidence is the Top-Most class of evidences and is the document itself produced by the court. It is that proof which in any possible condition gives the vital hint in a disputed fact and establishes through documentary evidence on the production of an original document for inspection by the court.

(d)Secondary Evidence- Section 63 says Secondary Evidence is the inferior evidence that occupies a secondary position. It is the evidence which is produced in the absence of the primary evidence therefore it is known as secondary evidence.

(e)Real Evidence- Real Evidence means real or material evidence that of a fact is brought to the knowledge of the court by inspection of a physical object and not by information derived from a witness or a document. Personal evidence is that which is afforded by human agents, either in way of disclosure or by voluntary sign.

(f)Hearsay Evidence- Hearsay Evidence is a weak evidence. It is only the reported evidence of a witness which he has not seen either heard. Hearsay Evidence is that evidence which the witness has neither personally seen or heard, nor has he perceived through his senses and has come to know about it through some third person. There is no bar to receive hearsay evidence provided it has reasonable nexus and credibility.

(g)Judicial Evidence- Evidence received by court of justice in proof or disproof of facts before them is called judicial evidence. The confession made by the accused in the court is also included in judicial evidence. Statements of witnesses and documentary evidence and facts for the examination by the court are also Judicial Evidence.

(h)Non-Judicial Evidence- Any confession made by the accused outside the court in the presence of any person or the admission of a party are called Non-Judicial Evidence, if proved in the court in the form of Judicial Evidence.

(i)Direct Evidence- Evidence is either direct or indirect. Direct Evidence is that evidence which is very important for the decision of the matter in issue. The main fact when it is presented by witnesses, things and witnesses is direct, evidence whereby main facts may be proved or established that is the evidence of person who had actually seen the crime being committed and has described the offence.

(j)Circumstantial Evidence or Indirect Evidence- There is no difference between circumstantial evidence and indirect evidence. Circumstantial Evidence attempts which relates to series of other facts is to prove the facts in issue by providing other facts and affords an instance as to its existence.

Difference between Oral evidence and Documentary evidence


Documentary evidence means all documents produced for the inspection of the Court whereas, Oral evidence means and includes all statements which the Court requires, or permits, to be made before it, by witnesses in relation to matters of fact under inquiry; [3]documentary evidence means and includes all documents produced for the inspection of the Court. Oral evidence is a statement of witnesses and documentary evidence is a statement of documents. Documents are denominated as dead proof, as distinguished from witnesses who are said to be living proofs. Documentary evidence is superior to oral evidence in permanence, and in many respects, in trustworthiness. There are more ways of trying the genuineness of documentary evidence than there can be of disproving oral evidence. In many cases, the existence of documentary evidence excludes the production of oral evidence.[4]

EXCLUSION OF ORAL EVIDENCE FROM DOCUMENTARY EVIDENCE

Mainly section 91 and 92 of The Indian Evidence act deals with exclusion of oral evidence from documentary evidence. [5]

 

Section 91 reads as: When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. [6]

Exception 1. – When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.

Exception 2. – Wills admitted to probate in India] may be proved by the probate.

The document itself is the best evidence to prove any fact. Such fact should be proved either by the primary or secondary evidence of the document. The section forbids the proof of the contents of a writing otherwise than by the writing itself. Even a third party, who is seeking to prove a written contract, can prove it only by producing the writing. In this respect section 91 and 92 supplement each other. They are both based on the “best evidence rule” though they differ in some material particulars also. The Supreme Court 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. Further the principle of exclusion of all other evidence applies only to the terms happens to be mentioned in a contract, the same can be proved by any other evidence than by producing the document.Where both oral as well as documentary evidence are admissible on their own merits, there is nothing in the act requiring that the documentary evidence should prevail over the oral evidence.

Section 92 of The Indian Evidence act reads as: When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying adding to, or subtracting from, its term: [7]

Proviso (1) – Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want for due execution, want of capacity in any contracting party, want or failure of consideration, or a mistake in fact or law.

Proviso (2) – The existence of any separate oral agreements to matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether; r not his proviso applies, the Court shall have regard to the degree of formality of the document.

Proviso (3) – The existence of any separate oral agreement, constituting, a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

Proviso (4) – The existence of any separate oral agreement, constituting, a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property, is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

Proviso (5) – Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved.

Proviso (6) – Any fact may be proved which shows in what manner the language of a document is related to existing facts.

Section 92 excludes evidence of any oral agreement or statement, when the terms of a contract, grant or disposition of property or any matter required by law to be in writing have been proved as required under Section 91 for the purpose of contradicting, varying, adding to or subtracting from its terms. The principle lays down that when the terms of any such document have been proved by the primary or secondary evidence of the document, no evidence of any oral agreement or statement shall be admitted.

Exceptions:

1) Validity of document- The first proviso to section 92 says that evidence can be given of any fact which would invalidate the document in question or which would entitle a party to any decree or order relating to the document. In case the validity of a document may be questioned.

2) Matters on which document is silent– The second proviso states that evidence can be given of an oral agreement on a matter on which the document is silent. Such evidence is allowed subject to two conditions; firstly, the oral agreement should not be inconsistent with the terms stated in the document. Secondly, in permitting the evidence of oral agreement the court is to have regard of the degree of formality of the document.

3) Condition precedent- the third proviso provides that the existence of any separate oral agreement constituting condition precedent to the attaching of any obligation under the document may be proved. If the party liable under a document has already stated making payments under it, he cannot afterwards set up the defence of an oral condition precedent to liability.

4) Recession or modification– As per proviso 4, to rescind a document means to set it aside and to modify means to drop some of it as cancelled or to modify some of its terms; such oral agreement may be proved. This is, however, subject to one qualification stated in the proviso itself, namely, where the contract is one is required by law to be in writing, or where it has been registered according to the law relating to registration of documents, then proof cannot be given of any oral agreement by which it was agreed either to resigned the document or to modify its terms.

5) Usages and customs- The proviso 5, therefore, provide that the existence of any usage or a custom by which incidents are attached to a particular type of contract can be proved. But this is subject to the condition that the usage or custom of which proof is offered should not be against the express terms of the document. The usage should not be repugnant to or inconsistent with the document, for otherwise it would nullify the document.

6) Relation of language of facts– The facts upon which the document is to operate are sometimes set out in the contract itself and sometimes not. Oral evidence is also receivable to throw light upon the nature of a document. The section does not fetter the power of the court to arrive at the true meaning of a document as disclosed by all the relevant surrounding circumstances.

Exception 1-Appointment of a Public Officer: Where the appointment of a public officer is required by law to be made by writing and the question is whether an appointment was made, if it is shown that a particular person has acted as such officer that will be sufficient proof of the fact of appointment and the writing by which he was appointed need not be proved.

Exception 2-Wills: Wills admitted to probate in India may be proved by the probate. The document containing the will need not be produced. “Probate” is copy of the will certified under the seal of the court and, therefore, is a sufficient proof of the content of the will.

Section 93 deals with the Exclusion of evidence to explain or amend ambiguous document. In Keshav Lal v Lal Bhai Tea Mills Ltd it was held that if the document had mentioned no price at all, oral evidence of the price would have been allowed under section 92 as to a matter of the fact on which the document is silent but not when the document mentions price of ambiguous nature.

Section 94 deals with the Exclusion of evidence against application of document of existing facts. This section applies when the execution of the document has been admitted and no vitiating fact has been proved against it. In the case of General Court Enterprises P. Ltd v. John Philipose it was held that oral evidence of explanatory nature was admissible.

Section 95 deals with the Evidence as to document unmeaning in reference to existing facts. When the language of a document is plain but in its application to the existing facts it is meaningless, evidence can be given to show how it was intended to apply to those facts.

Section 96 deals with the Evidence as to application of languages which can apply to one only of several persons. As per Schuthon Nayar v. Achuthan Nayar, where a promissory note mentioned a date according to the local calendar and also according to the international calendar, but the two date turned out to be different, it was held that evidence could be offered to show which date was meant.

Section 97 deals with the Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies. The principle of the section is that where the language of a document applies to one set of facts and partly to another, but does not apply accurately to either, evidence can be given to show to which facts the document was meant to apply.[8]

Section 98 deals with the Evidence as to meaning of illegible character, etc. This section permits evidence to be given of the meaning of words or marks of illegible character or words which are not commonly of intelligible character, foreign words, obsolete words, technical, local and provincial expressions, abbreviations words used in a peculiar sense. In Canadian-General Electric W. v. Fatda Radio Ltd it was held that Oral evidence is admissible for the purpose of explaining artistic words and symbols used in a document.

Section 99 deals with who may give evidence of agreement varying terms of document. The parties to a document or their representative-in-interest cannot give evidence of a contemporary agreement varying the terms of the document.


CONCLUSION

Document evidence has more value than the oral evidence. Court is bound to accept the documentary evidence. But oral evidence may take in consideration. It also need to some corroboration. In brief it is submitted that two types of evidence are given by the parties oral and documentary evidence. In courts the value of oral evidence is less than documentary evidence. Because the law always requires the best evidence oral evidence is a evidence is a evidence which is confined to the words spoken by the mouth. On another side documentary evidence are of two types. Primary evidence is more reliable and best evidence consider by court. In the absence of primary evidence, secondary evidence is that which the witnesses are giving on the basis of his own perception. Where as primary evidence is the original document which is presented to the court for its inspection. Direct evidence is best oral evidence of fact to be proved. But primary evidence is the best evidence in all circumstances. There is also exclusion of oral evidence by document evidence document also of two kinds ambiguous and non ambiguous. The person giving direct evidence available for cross examination for testing its veracity.

Hence, as it is considered that document is written to perpetuate the memory, Sections 91 and 92 exclude oral evidence by documentary evidence. Oral proof cannot be substituted in the place of written documents where the written document exists in proof of certain transactions referred to in Sectin 91 as written testimony is of higher grade, more certain and more reliable than oral evidence.

BIBLIOGRAPHY

(2015). Retrieved 28 March 2015, from https://www.bcps.org/offices/science/secondary/forensic/Types%20of%20Evidence.pdf

Indialegal.blogspot.in,. (2015). Indian Law Primer: THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE. Retrieved 28 March 2015, from http://indialegal.blogspot.in/2008/04/exclusion-of-oral-by-documentary.html

KUmar, S. (2013). Different Kinds of Evidences & Witnesses under the Indian Evidence Act. Legalindia.in. Retrieved 28 March 2015, from http://www.legalindia.in/different-kinds-of-evidences-witnesses-under-the-indian-evidence-act/

Magner, E. (1995). The best evidence- oral testimony or documentary proof. Retrieved 28 March 2015, from http://www.unswlawjournal.unsw.edu.au/sites/default/files/4_magner_1995.pdf

Singh, A. (2015). Oral & Documentary Evidence. Lawyersclubindia. Retrieved 28 March 2015, from http://www.lawyersclubindia.com/articles/Oral-Documentary-Evidence-1955.asp

Endnotes

[1] https://www.bcps.org/offices/science/secondary/forensic/Types%20of%20Evidence.pdf

[2] http://www.legalindia.in/different-kinds-of-evidences-witnesses-under-the-indian-evidence-act/

[3] http://www.lawyersclubindia.com/articles/Oral-Documentary-Evidence-1955.asp

[4] http://www.unswlawjournal.unsw.edu.au/sites/default/files/4_magner_1995.pdf

[5] http://indialegal.blogspot.in/2008/04/exclusion-of-oral-by-documentary.html

[6] http://indialegal.blogspot.com/2008/04/evidence-of-terms-of-contracts-grants.html

[7] http://indialegal.blogspot.com/2008/04/exclusion-of-evidence-of-oral-agreement.html

[8] http://www.lawyersclubindia.com/articles/Oral-Documentary-Evidence-1955.asp#.VRaMq1sxEU1

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