Oral & Documentary Evidence

 CHAPTER-I

ORAL EVIDENCE

The facts judicially noticeable and facts admitted are need not to be proved. Oral and documentary evidence are not only media of proof. This chapter deals with the oral evidence only. It enacts two broad rules regard to oral evidence: firstly, that all facts except contents of documents may be proved by oral evidence, and secondly, that oral evidence in all cases must be direct and not hearsay.

                        The meaning of expression “oral evidence” is given along with the definition of the term  “evidence” in Section 3 of Indian evidence act  as-:   "Evidence" means and includes -:

(1) 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.

(2) [1][All documents including records produced for the inspection of the Court] such documents   are called documentary evidence.

Section 59 of the Indian evidence act reads as-: All facts, except the contents of  documents, [or electronic records,][2]may be proved by oral evidence.

Principle: this section lays down that all facts may be proved by oral evidence, except the contents of a document. The section is rather loosely worded as it makes an unqualified statement as regards the exclusion of oral evidence to prove the contents of a document. The true position is that oral evidence can be led as evidence relating to documents under section 65.

                                                                   In general the evidence of a witness is given orally, and this means oral evidence. The expression oral evidence therefore includes the statement of witness before the court which the court either permits or requires them to make. The statement may be made by any method by which the witness is capable of making it. A witness who cannot speak may communicate of facts to the court by signs or by writings and in either case it will be regarded as oral evidence. Thus where a women was unable to speak because her throat was cut and she suggested the name of her assailant by the signs of her hand that was held to be a verbal statement relevant as a dying declaration.[3]

                                                          Where oral evidence is credible and cogent, medical evidence is to contrary is inconsequential. Only when medical evidence totally improbable oral evidence, adverse inference can be drawn.[4] Evidentiary value of the oral testimony of an eye-witness cannot be diluted by reason of non-production of any document in support of a claim contrary to the oral testimony.[5]

Difference between ‘Relevancy’ & ‘Admissibility’-: there are following three differences between the relevancy and Admissibility -:

1)      The first deals with the probative value of specific facts,

2)      The second including artificial rules which do not profess to define probative value but yet aim at increasing or safeguarding it, and

3)      The third covering all those rules which rest on extrinsic policies irrespective of probative values.

EVIDENTIARY VALUE-:  Oral evidence is a much less satisfactory medium of proof than documentary proof. But justice can never be administered in the most important cases without resorting to it.[6] In all civilized systems of jurisprudence there is a presumption against perjury. The correct rule is to judge the oral evidence with reference to the conduct of the parties, and the presumptions and probabilities legitimately arising in the case.[7]Another test is to see whether the evidence is consistent with the common experience of mankind, with the usual course of nature and of human conduct, and with well-known principles of human action.

FALUS IN UNO FALUS OMNIBUS-: The maxim means false in one particular, false in all. This principle is a somewhat dangerous maxim. There is always a fringe of embroidery to a story, however true in the main and so where the falsehood in merely an embroidery, that would not be enough to discredit the whole of the witness’s evidence; where , on the other hand the falsehood relates to a major or material point that is enough to discredit the witness.

APPRECIATION-: oral 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 credibility of the witness should be decided on the following important points:

(a)    Whether the witness have the means of gaining correct information,

(b)   Whether they have any interest in concealing the truth,

(c)    Whether they agree in their testimony.

                                                                Though a chance witness is not necessarily being a false witness, it proverbially rash to rely upon such evidence.[8] The real tests for accepting or rejecting evidence are; how consistent is the story in itself, how does it stands of cross-examination and how far does it fit it with the rest of the evidence and circumstances of the case.[9] Non-consideration of oral evidence by the lower appellate court, it is a non observance of the mandatory provision of Order 41, Rule 31 which brings in the sessions infirmity in the judgment. The judgment in such a cases stands vitiated and is not binding on the high court in the second appeal.[10] When a girl states that a particular person used to conduct himself as her father, she says so from his personal knowledge and it is not hearsay[11]

ELECTRONIC RECORDS-:

                                                The section was amended by the Information Technology Act, 2000 so as to include within the meaning of the term “document”, electronic records also. Hence, every other fact, except contents of an electronic record or of any document, can be proved by oral evidence.

S.60 deals with Oral evidence must be direct - Oral evidence must, in all cases, whatever, be direct; that is to say­— 

If it refers to a fact which could be seen, it must be the evidence of a witness who says he seen it;

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds -

Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.

Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

PRINCIPLE-: this section enacts the general English rule that hearsay is no evidence. It embodies the second important rule about oral evidence, viz., that it must in all cases be direct and not hearsay. The section sets out the scope of the expression ‘direct evidence’. It is true that hearsay evidence is excluded by this section. However, this is subject to well- recognized exceptions (e.g., sections 17 to 39).

Stephen – “the word ‘hearsay’ is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else.”

HEARSAY EVIDENCE AND ITS EXCLUSION-: the term hearsay is ambiguous and misleading as it is used in more than one scene. Stephen says “sometimes it means whatever a person is heard to say; sometimes it means whatever a person declared on information given by someone else; sometimes it is treated as nearly synonymous with irrelevant” , (Stephen’s evidence, introduction, p.4). In its more generally accepted since the term hearsay is used to indicate that evidence which does not derive its value from the credit given to the witness himself, but which rests also on the veracity and competence of some other person. It is thus used in contradiction to ‘direct evidence’. It is derivative evidence.

REASONS FOR EXCLUSION OF HEARSAY-:

(a) The irresponsibility of the original declerant;

(b) The deprecation of truth in the process of repetition; and

(c) The opportunities for fraud its admission would open; to which are sometimes added   these grounds, viz.,

(d) The tendency of such evidence to protract legal inquires, and

(e) To encourage the substitution of weaker for stronger proof.

                                                                                                                           Hearsay evidence is the statement of a witness not based on his personal knowledge but on what he heard from others.[12]If the evidence is that of a fact the happening of which could be heard, for example, the noise of an explosion, the evidence must be that of a person who personally heard the happening of the fact.[13]the evidence of a reporter that after filing the F.I.R at the instance of his companion, who told by the people there, by naming the accused, that he assaulted the deceased and escaped, was held to be irrelevant, being not an eye witness account.[14]thus all the cases the evidence has to be that of a person who himself witnessed the happening of the fact of which he gives evidence in whatever way the fact was capable of being witnessed. Such a witness is called an eye-witness or a witness of fact and the principle is known as that of direct oral evidence or of the exclusion of hearsay evidence. A post mortem report was produced by the record clerk of the hospital. The doctor who conducted the post mortem was not produced. The court ruled that in such circumstances the report was not provable. Only the original report stand not a copy of it is admissible.[15]

 R v. Gibson[16]

                              The accused person was prosecuted for causing hurt by throwing a stone at prosecutor. So soon he was hit by the stone a woman who saw a man throwing the stone drew his attention towards a house and said: “the person who threw the stone went in there.” Very soon thereafter he was caught and arrested in that house.

                                                                                         But the above statement was held to be not relevant. The prosecutor himself had not seen any person throwing a stone at him and thereafter entering a particular house and, therefore, the statement was not hearsay.[17]

EXCEPTIONS TO HEARSAY

• Res Gestae [s.6]
• Admissions and Confessions
• Statement relevant under section.32
• Statements in Public Documents.
• Evidence in Former Proceedings
• Statements of Experts in Treatises[s.60,proviso]

Difference between Direct Evidence and Hearsay Evidence

CHAPTER-II

DOCUMENTARY EVIDENCE

MEANING--: the expression “documentary evidence” as it is defined in section 3, means:

[18][All documents including records produced for the inspection of the Court] such documents   are called documentary evidence.

The expression “document” is defined in section 3 as follows:

"Document"- means any matter expressed or described upon any substance by means of letter, figures or makes, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

                                                                                 S.3 defines the term ‘evidence’ as meaning and including oral and documentary evidence. All evidence comes to the tribunal either as the statement of a witness or as the statement of a document, i.e., oral or documentary evidence. The present chapter deals with the documentary evidence, i.e., the mode of proof of contents of documents old documents either by primary or secondary evidence, the types of documents, viz., public and private documents of the presumptions as to the documents. Father we are going to deal with the 3 main aspects --:

a) How documents are to be proved the manner of,

b) What are the presumptions about the various kinds of documents, and

c) When is oral evidence excluded by documentary evidence.

                                                                                                             It has been said that the word “document” as used in the law of evidence “should not be construed restrictively. Etymologically the word means something which shows or teaches and is evidential or informative in its character. Where the statement of parties containing the terms of a compromise were recorded by a court and duly signed, it was to be held to be a document.[19]with regard to recorded tape, it was said that there is “no reason in principle why the recording in recording in some permanent or semi-permanent manner of human voice(or other sounds) which are relevant to the issue to the determined, provided that it furnishes information, cannot be a document”.[20]In reception to the reception into evidence of models, maps, diagrams and photos, it is to observed in WIGMORE[21] “that for evidentiary purposes they are nothing except so far as they have a human being’s credit to support them. Then they become media of communication as a superior substitute for words.”

R.M.Malkani v. State of Maharashtra[22]

                                                                  The accused, which an appealed to the Supreme Court against his conviction, was the coroner of Bombay. A doctor, who was running a nursing home, operated upon a patient who afterwards died. It, being a post-operation death, becomes the subject of post-mortem and inquest. The coroner persuaded the doctor to pay him a sum of money if he wanted the report to be favorable to him. The payment was arranged to be made through another doctor and the final meeting for this purpose was to be settled by telephone call from the house of another the doctor. The police commissioner was called with the tape-recording mechanism. This was connected to the doctor’s telephone and thus the most incriminating conversation was recorded in the presence of the police officer.

                                                                                                                                 The Bombay High Court held that the testimony of the two doctors required corroboration and that the tape amply corroborated it. The decision was upheld by the Supreme Court.

N.Sri Rama Reddy  v. V.V. Giri[23] & Pratap Singh v. State of Punjab[24]

                                                                                                                The court accepted conversation of dialogue recorded on tape-recording machine as admissible evidence.

S.61 – Proof of contents of documents--: The contents of document may be proved either by primary or secondary evidence. Law of best evidence requires the best evidence must be given in proof of the facts in issue or the other relevant facts. Primary evidence is the best evidence. The best evidence rule is to produce the original and secondary evidence is not admissible unless the original is proved to be lost, etc, as required under section 65. Contents may be proved, i.e., in other words, there are no degrees of secondary evidence.

                                                                                                                             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.[25]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.[26]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 favour of any party and merely recorded something.[27]An unregistered family settlement deed was held to admissible strictly for collateral purposes only.[28]

The subject of documentary evidence can be divided into three parts:

1. How the contents of a document are to be proved? {61-66}   

2. How the document is to be proved to be genuine? {67-90}

3. How far and in what cases the oral evidence is executed by documentary evidence? {91-109}

CHAPTER-III

PRIMARY AND SECONDARY EVIDENCE {62-66}

PRIMARY EVIDENCE

 Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1. - Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterparts, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2. - Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

                                           The expression “primary evidence” of a document is defined in section 62. The following four are included in the expression “primary evidence”:

1. The original document itself produced for the inspection of the court.[29]
2. Where a document is executed in several parts, each part is primary evidence of the document.[30]
3. Where a document is executed in counterparts, each counterpart in primary evidence against the party signing it.
4. Where a number of documents are all made by one uniform process, for example, by printing, lithography or photography, each is primary evidence of the contents of the document.[31]

PRICIPLE--: this section defines primary evidence as the document itself produced for the inspection of the court. Primary evidence is evidence which the law requires to be given first. The general rule requiring primary evidence to be given of the litigated documents is based on the best evidence rule. An original document is the first permanent record of a transaction. It is first-hand evidence and presumptively the most reliable. Besides, documents are often interlined or altered. Therefore it is desirable to have the original to see if alterations are part of the document or are made subsequently.

                                                                      There is probably no rule of evidence that is better known than this  that secondary evidence of the contents of written document is, in general, not relevant. “The contents of every written paper are, according to the ordinary well-established rules of evidence, to be proved by the paper itself, and by that alone, if the paper be in existence.[32] Where the writer of a letter was not examined as a witness and no opportunity was given to the opposite party to cross-examine him, the letter was held by the Supreme Court to be not reliable evidence.[33]The truth of the contents of a document can, however, is also proved by any other evidence and not necessarily by the evidence of author of the document.[34]

                          One specimen of a newspaper of a newspaper is not a copy of another specimen of the same newspaper of the same date. They are all originals, each being primary evidence of the contents rest under Explanation 2 to section 62.[35]

SECONDARY EVIDENCE

63. Secondary evidence means and includes…….

1. Certified copies given under the provisions hereinafter contained;

2. Copies made from the original by mechanical processes which in themselves insure the       accuracy of the copy and copies compared with such copies;

3. Copies made from or compared with the original;

4. Counterparts of documents as against the parties who did not execute them;

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

              The most remarkable among the types of secondary evidence by the section is the oral or parol evidence of the contents of a document. Thus, it follows the oral evidence of the contents of a document can be given. There are two conditions of a relevancy of such evidence. Firstly, party offering oral evidence must be entitled to give secondary evidence of such document. The circumstances in which secondary evidence can be given are listed in section 65 should exist so as to enable, the party to give secondary evidence of a document in question. The second condition is that the oral account of the contents of a document must be that of a person who has himself seen it. Once these conditions are satisfied, the party can give oral evidence of the contents of the document even if he has attested copy in his possession.

                                                                                                                                 “The rule is, that if you cannot produce the original, you may give parol evidence of its contents if indeed the party giving such parol evidence appears to have better secondary evidence in his power, which he does not produce, that is a fact to go to the jury, from which they might sometime presume that the evidence kept back would be adverse to the party without holding it. But the law makes no distinction between one class of the secondary evidence and another.”[36]

                                                                                                                     The evidence embodied in a letter was held to be not reliable when the author of the letter was not produced and the opposite party had no opportunity of cross-examining him.[37]Even where a person against whom an item of news appears in the press has not denied it, it would not constitute evidence against him. Facts contained in the report would have to be proved.[38]

                                                                                          Call records of cellular phones are stored in huge servers, which cannot be easily moved and produced in courts. Hence, secondary evidence of such records should be allowable under sections 63 and 65. Whatever or not the requirements of section 65b (4) are satisfied. The nature of evidence to show that there has been no improper use of a computer and that it was functioning properly would vary from case to case. It would be very rarely necessary to call an expert. In normal cases it would be possible to discharge the burden of proving proper functioning by calling a witness who is familiar with the operation of the type of computer in question.[39]

Difference between Primary Evidence and Secondary Evidence

PROOF OF DOCUMENTS BY PRIMARY EVIDENCE

S.64 of the evidence act deals with this and it reads as -: Documents must be proved by primary evidence except in the cases hereinafter mentioned.

                                                                                          This section embodies one of the underlying principles which is that a document must be proved by its primary evidence. The meaning of the expression “primary evidence” has been explained in sec.62. But lest technical considerations should defeat substantial justice, the following section, namely, sec 65, embodies situations which would sanctify secondary evidence.

                                                                                            It has been held in several decisions that objections, if any, as to the mode of proving a document should be at trial stage itself. If no objections taken at the stage, subsequently at the stage of appeal, it would be too late and would not be allowed.[40]Where, however, a copy of the insurance policy and not the original document was produced before the tribunal, the other party making no objection then, an objection before the appellate court was allowed so as to exclude the evidence.[41]

CASES IN WHICH SECONDARY EVIDENCE RELATING

TO DOCUMENTS MAY BE GIVEN

S. 65 deal with these kinds of cases and reads as-: Secondary evidence may be given of the existence, condition or contents of a document in the following cases:

(a)   When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or

 of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it,

 and when, after the notice mentioned in Section 66, such person does not produce it;

(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) When the original is of such a nature as not to be easily movable;

(e) When the original is a public document within the meaning of Section 74;

(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;

(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collections.

In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

                                           Where the document is inadmissible in evidence, the acquiescence of the other party at the time of marking of the document could be no bar to raising an objection in the appellant forum for the first time. But, if the objection relates to the mode of proof it cannot be allowed to be raised for the first time at the appellate stage.[42]Circumstances for admission of secondary evidence must be made out. Without taking steps for production of original or laying foundation for secondary evidence, production of certified copies by itself was not allowable in evidence.[43]

                 Evidence related to electronic record. A prayer was made for pr producing it by means of video-conferencing. The court said that there was no bar on examination of a witness through video-conferencing.[44]

         Section 67 deals with the 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 hand writing.

             The party, who produces a document which he alleges is executed, signed or written by a certain person, has to prove that fact. This section merely requires proof of signature and handwriting of the person alleged to have signed or written the document produced.[45]

                                                                                                               As to the way in which the handwriting of a person can be proved has been already been seen in connection with opinion as to handwriting. Such a proof is not necessary where the document has been produced by the part against whom its production was demanded, because by producing it he virtually admits the execution by him.[46]Except in the cases of a secure digital signature, if the digital signature of any subscribe is alleged to have been fixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.[47]

                                                                                                  Proof of execution of document required y law to be attested. Section 68 deals with these kind of cases and lay down that , if a document required by law to be attested, it shall not be used as evidence until on attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

      Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied.

                                                                                       The document has to be roved by examining the attesting witnesses. The validity of the document could not be denied by the person who had no right succeed or had any other right to property. The denial in this case was by the son of the executants through his second wife. He had no right of succession and therefore, was not allowed to register his denial to the validity of the document.[48]Thus, an examination of attesting witness is necessary only when the execution of the document has been specifically denied. If not so denied, the evidence furnished by the registration certificate under S.63 of the registration act coupled with the presumption under illustration (e) to S.114 of the Evidence act would be more than sufficient.[49]

                                                                             Whereas in the cases of proof of will and Where all that the executor of a pronote said that he was very old, infirm and could not understand the nature of the document, but offered no evidence in support of his allegation, the Allahabad High Court held that this did not amount to a specific denial of execution. There was no necessarily of calling an attesting witness.[50] Where, in the case of a “will” the only attesting witness surviving and summoned was able to prove nothing, the will was held to be not proved.[51] Similarly, where the legal heir of the executants of a denied execution and the opposite party did not produce the attesting witness for the fear that he may not favour the, the requirements of the section were held to be not satisfied.[52]The legal requirement is complied with when one attesting witness is produced. Neither it is necessary to produce the other witness even if available, nor is there any obligation to explain why the other witness has not been produced.[53]What is to be done if no attesting witness is available? Section 69 provides the answer……..

                                         S.69 deals with the Proof where no attesting witness found any lays down that “If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.”

                                                 If no attesting witness is available or if the document is executed in the United Kingdom, two things should be proved-:

a)      It should be proved that the signature of the person executing the document is in his handwriting, and

b)      That the signature of at least one attesting witness is in his handwriting.

                                                                                                                                      Where all the attesting witnesses of a will were dead the court allowed the will to be proved in the manner of any other document.[54]Where the part to an attested document has admitted that he executed the document that is sufficient proof of the execution even if the document is required by law to be attested. This is laid down in section 70.

                                                                  Section 70 deal with the admission of execution by party to attested document and say that The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

                                                                      If the attesting witness denies or does not remember the execution of the document, its execution should be proved by other evidence. Where the attestor was an illiterate person and he attested by putting hi thumb impression and though it was a conveyance by his predecessor-in-interest, he was not bound by the document unless it could be shown that the document was read out to him and he understood it.[55] The Calcutta and the Allahabad high court have held that the word ‘admission’ relates only to the admission of a party in the course of the trial of a suit, and not to the attestation of a document by the admission of the party executing it. In other words, it has no relation to any admission of execution made before an attesting witness without reference to any suit or proceeding.[56]

                                                                                                              Now the question here is that what if attesting witness denies the execution. Section 71 deals with the same and says that if the attesting witness denies or does not recollect the execution of the document its execution may be proved by other evidence.

                                                  If a document not requires by the law to be attested has in fact been attested, its execution may be proved as if it were not an attested document. In a case before Madras High Court,[57] the question related to the validity of a will alleged to have been made and signed by a lady before her death. Of the attesting witnesses only one was alive and he denied having attested any such will. There were two other witnesses only one was alive and he denied having attested any such will. There were two witnesses only. One of them was the registrar who did remember the woman executrix. The other witness was able to identify the signature of her head father who was one of the attesting witnesses. In these circumstances the court held that the execution the execution of the will could not be said to have been duly proved. Section 63 of the succession act, 1925 requires a will to be attested by the two or more witnesses. A combined reading of sec.68 of the Evidence Act and S.63 of the succession Act would, therefore, suggested that at least one attesting witness should be examined and he should speak  not only of the testator’s signature but also that the other the other witnesses signed the will in his presence. Where this is not done, the will cannot be said to have been proved.[58]

                                                                                                                     A ‘will’ which have not been proved in accordance with the requirements of S.68 cannot be used even for some relationship or for the existence or absence of some other rights in the property.[59]

                                                                                                                            Where the attesting witness of a will was not produced for the fear that he might go against the claimant’s interest, the Allahabad High Court held that it could not be said that the witness had denied knowledge so as to attract provisions of section 71.[60]The section is attracted when the attesting witness, who is available, denies attestation. Other evidence then becomes permissible. The scribe testified as to the scribing of the ‘will’ by him and attestation by two witnesses. This statement was held to be coming under S.71. A subsequent “will” executed by the testator made specific mention of the execution of “will” in question. The execution of the will by the other evidence was taken to be proved.[61]

              In the case of a will the burden lies upon its propounder to prove its genuineness, the deceased testator being no longer available to speak to its genuineness. Accordingly when the evidence produced by him was contradicting his claim and there was also inconsistency in the opinion of the handwriting expert, the will was held to be not proved.[62]

                   Section 72 deals with the proof of the document not required by law to be attested. Where no attestation is necessary the section declares in simple terms that where a document, though not required by law to be attested, is nevertheless attested, it may be proved as if it was not attested.[63]

                        COMPARISON OF SIGNATURE, WRITING OR

                        SEAL WITH OTHERS ADMITTED OR PROVED

           S.73 deals with the comparison of signature, writing or seal with others admitted or proved and says that -:In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which s to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

                                                                                      The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

                                                                                           This section applies also with any necessary modifications, to finger-impressions.

                                                                                When the court has to satisfy itself whether the signature or whether the signature or seal on a document is genuinely that of a person whose signature or seal it purports to be, the court may compare the same with another signature or seal which is admitted or proved to be that of the person concerned. This principle is laid down in S.73. In so doing the court does not act as an expert.[64]Modes of proving handwriting have already been considered before. Comparison by the court of the handwriting with a proved or admitted handwriting is one of those methods which are recognized by this section. It is necessary that the writing to be used as a standard should be properly proved to the satisfaction of the judge to be the handwriting of the person concerned.[65]

                                                                       An application for appointment of an expert for verification of signature should be rejected where the application is disputing his signature.[66] An application for this purpose can be made at any stage of the trial.[67]

                                                                                                                  This section enables the court to require the person concerned to write any words or figures to enable the court to compare them with words or figures in question.[68]The principle of the section also applies to finger impressions.[69]Ordinarily the court should in such cases take the help of an expert.[70]In a grant of loan against pledge of ornaments, the question was whether the slip acknowledgement receipt of articles was under the signature of the pledge. The court itself decided the question by comparing the handwriting with an admitted handwriting. It was held on appeal that expert should have been obtained as a matter of prudence or cogent reasons given why that was not considered necessary.[71]

                                        Rejection by the court of the evidence of a handwriting expert on the ground that the expert had no qualifications was held to be not proper. Once becomes an expert in this field by training, experience and constant observation and not by any formal qualification. It is not a developed science and there are no regular courses of study. The expert here was retired personnel from forensic science laboratory. The circumstantial evidence supported the expert opinion was also based upon cogent reasons.[72]

CHAPTER- IV

PUBLIC & PRIVATE DOCUMENTS

S.74 deals with the public documents which reads as -:

The following documents are Public documents-

1. Documents forming the acts or records of the acts

    a) Of the sovereign authority,

    b) Of Official bodies and Tribunals, and

    c) Of public officers, legislative, judicial and executive, of any part of India or of the         Commonwealth, or of a foreign country.

2. Public records kept in any State of private documents.

Two kinds of public documents:

1.      Documents forming the acts or records of the act of the sovereign authority, namely, the parliament and the legislative assemblies, or of the official bodies and tribunals, and of public officers, legislative, judicial and executive, of any pert of India or of the commonwealth, or of a foreign country, are public documents.[73]

2.      Private documents which are registered in the public offices also become public documents.

                  A private document, such as, for example, an application for a licence, which is filed in government office and is produced there from does not become a public document so as to dispense with the necessity of proof by primary evidence.[74] A post-mortem report is not public document so as to amount to proof of identity of the deed without producing the doctor in evidence.[75]                                                          

                                                                                     A private waqf deed which is recorded in the office of the sub-registrar is a public document.[76] This should be compared with a decision of the Gauhati high court where it was held that a private sale deed registered under the Indian Registration Act is not a public document and, therefore, a certified copy is not admissible in evidence under S. 77 of the evidence act. Explaining the meaning of public records the court said-:

       “Public records are those records which a government unit is required by law to keep or which it is necessary to keep in discharge of duties imposed by law.”[77] The court overruled its own earlier decision[78]and followed the Privy Council decision in Gopal Das v. Thakurji,[79]where their Lordships held that the d original receipt executed by any individual and registered under the Indian Registration Act is not “a public record of public document”, within the meaning of S.74(2) As the original gas to be returned to the party under S.61(2) Of the Registration Act.

                                                                                                                               Entries made by a police officer in the site inspection map and site memo have been held to be public document.[80] A record of consideration of employees for promotion purposes was submitted before the Supreme Court by a public sector undertaking. The record was 13-19 years old. It was held that the record was sufficiently old to rule out the objection that it was a manufactured one and not the original.[81]  An order sanctioning prosecution of an officer has been held to be a public document.[82]  Section 75 of the Act deals with the Private Documents and lay down that all other documents are private

Difference between Public Document and Private Document

CHAPTER-V

PROOF OF PUBLIC DOCUMENTS

                             The rule relating to proof of public documents is that they can be proved by producing certified copies. It means that public documents are always provable by secondary evidence. This first provision which deals with this is section 76 which says about the Certified copies of public documents-: Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor,  together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.

Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

             Where in a process for acquisition of land, it became necessary to determine the value of land by the comparable sales method, evidence of registered sales was allowed by producing certificate copies. Examination of the parties to the agreements was not considered to be necessary.[83]

The provision which deals with the Proof of documents by production of certified copies is section 77 of the act which reads as-: Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

           A will was executed in the state of Goa with the intervention of Notary Public. The court said that it became a Public document. It could be proved by production of a certified copy. Such will carried with it a ring or halo of its authenticity and reliability and it presumed t be true until disapproved.[84]

            Next provision deals with the Proof of the other official documents it is provided under S.78. This reads as:-

 The following public documents may be proved as follows –

(1). Acts, orders or notifications of the General Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government.

By the records of the departments, certified by the heads of those departments respectively, or

By any document purporting to be printed by order of any such Government or as the case may be, of the Crown Representative;

(2) The proceedings of the Legislatures -

by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting The Orient Tavern be printed by order of the Government concerned;

(3) Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty's Government,

By copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer;

(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country -

By journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;

(5) The proceedings of a municipal body in a State, -

By a copy of such proceedings certified by the legal keeper thereof of by a printed book purporting to be published by the authority of such body,

(6) Public documents of any other class in a foreign country, -

by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of an Indian consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original and upon proof of the character of the document according to the law of the foreign country.

                                                                                            The Allahabad High Court had held that a mere cyclostyled covering letter accompanied by a similar copy of the rules is not relevant. It was covering letter accompanied by a similar copy of the rules in not relevant. It was necessary that the letter should have been certified by the head of the department as required by section 78.[85] A newspaper is not one of the documents referred to in S. 78 by which an allegation of a fact can be proved.[86]

CHAPTER VI

PRESUMPTIONS AS TO THE DOCUMENTS

Meaning of Presumption…..

                       Presumption is an inference of fact drawn from other known or proved facts. It is a rule which treats an unknown fact as proved on proof or admission of certain other facts. It means a rule of law that courts shall draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disapproved.

Kinds of Presumptions…..

There are two kinds of presumptions:

1)      May presume: presumptions of fact are permissive in the sense that the court has discretion to draw or not to draw them. They are also rebuttable as their evidentiary value may be negatived by contrary proof. Thus these presumptions afford a provisional proof. That a person found in possession of stolen property soon after the theft is either the thief or has received the goods knowing them to be stolen is a presumption is a presumption of this type.

2)      Shall presume: they are always obligatory; and a judge cannot refuse to draw the presumption. Such presumptions are either (1) rebuttable, or (2) irrebuttable. Rebuttable presumptions of law are indicated by the expression ‘shall presume’. They hold good unless and until there is contrary evidence, e.g., the court shall presume the genuineness of every Government publication. (section-84)

Difference between Rebuttable and Irrebuttable Presumption

                              This chapter deals with the presumptions about the genuineness of the documents. These presumptions start from S.79 to S. 90 of the act. These are the various presumptions deals with the various documents and as to their genuineness ……….

The first provision as to the genuineness of the documents is section 79 which says about Presumption as to genuineness of certified copies and reads as-:

                                                                                                                 The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized there to by the Central Government:

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper.

                                                                                                                                 When a certified copy of a document is produced before the court as evidence of the original in circumstances in which secondary evidence is admissible the law presumes that the copy is a genuine reproduction of the original. This presumption is raised by section 79. The effect of the presumption is that if anybody alleges that the certified copy is not genuine, the burden of proving that fact lies on him, for the court presumes genuineness.

                                                               For this presumption arise, it is necessary that the copy should haven certified by an officer of the Central or State Govt. or by an officer in the State of J&K who is duly authorized by the Central Government. Secondly, the document should be subsequently in the form, if any, prescribed by law and should also purport to be executed in that manner.[87]

   The provision which deals with the Presumption as to documents produced as records of evidence is S. 80 which reads as-:

                                                                 Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be statement or confession by any prisoner or accused person taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume –

that the document is genuine; that any statements as to the circumstances under which it is taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.

                                                 It is necessary for this presumption to arise that a person should have recorded his evidence before a court of law before any officer authorized by law to take such evidence, or that a person accused of any officer authorized by law to take such evidence, or that a person accused of any crime has recorded his confession in accordance with the law, and a copy of the statement has been signs by the judge, magistrate or other officer before whom the statement was recorded.

Section 81 says about the presumption as to gazettes, newspapers, private Acts of parliament and other documents. And reads as-:

                                                                The Court shall presume the genuineness of every document purporting to be the London Gazette, or any official Gazette or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of private Act of Parliament of the United Kingdom printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

                                                     Every document which purports to be a newspaper or journal.[88]In spite of this presumption, it has been held by the Supreme Court that newspaper reports do not constitute admissible evidence of their truth.[89]The presumption, of genuineness attached under s.81 to a newspaper reports cannot be treated as a proof of the facts reported therein.[90]A newspaper report cannot be the basis of filing a writ petition. The statement of a fact contained in newspaper is merely a hearsay and therefore inadmissible in evidence.[91]

There is the new amendment added in this section in the form of S.81A. This reads as-:

                                                                                                                                   The court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.[92]

             This section mainly says that the Court has to presume the genuineness of any electronic record purporting to be the official Gazette or purporting to be the electronic record directed by law to be kept in accordance with the form required by the law and is produced from proper custody.

S.82 is the next provision which deal with the presumption as to documents admissible in England without proof of seal or signatures and reads as-:

                                                                                                      When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine and that the person signing it held at the time when he signed it, the judicial or official character which he claims;

 and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.

                                  Where a document is produced before court of law which according to the laws of England or Ireland would be admissible without proof of seal, or stamp or signature authenticating it, the court shall presume that such seal, stamp or signature is genuine and also that the person signing the document held at the time of signing it, the judicial or official character which he claims.[93]

S.83 deals with the Presumption as to maps or plans made by authority of government. This reads as-:

                The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate, but maps or plans made for the purposes of any cause must be proved to be accurate.

                                                                                                                   Maps or plans purporting to be made with the authority of the central or any State Government are presumed to be accurate. Maps or plans made for the purpose of any cause must, of course, be proved to be accurate.

               Where the site plan and inventory prepared on behalf of a former ruler was not produced in its original State, the Supreme Court did not allow any objections to be raised about the matter in the Supreme Court.[94]

S.84 which deals with the presumption as to collections of laws and reports of decisions which reads as-:

              The Court shall presume the genuineness of every book purporting to be printed and published under the authority of the Government of any country, and to contain any of the laws of that country; and of every book purporting to contain reports of decisions of the Courts of such country.

                      This section says that the court presumes the genuineness of every book purported to be printed or published under the authority of the government of any country, and which contains any of the laws of that country. The same presumption is raised in reference to books published by the State which contains report of decided cases.

S.85 deals with the Presumption as to power of attorney which reads as-:

                                                                                                                                  The Court shall presume that every document purporting to be a Power of Attorney, and to have been executed before, authenticated by, notary public, or any Court, judge, Magistrate, Indian Consul, or Vice Consul, or representative of the Central Government, was so executed and authenticated.

                                                                                                                      The Delhi High Court[95] acted on this presumption and held that the power of attorney executed on behalf of a bank and attested by notary public created the presumption that the power was validly delegated and the executants were duly authorized to do so. The presumption created by the section applies with equal force in reference to documents authenticated by notaries functioning in other countries.[96] The Supreme Court accepted a document which was authenticated before a notary public of California, U.S.A.[97] Following this; the Allahabad High Court raised the presumption as to a signature authenticated by a notary public in Pakistan.[98]

There are three new provisions added in this section i.e.85A., 85B, 85C respectively…….

S.85A deals with the presumption as to electronic agreements which read as-:

                                                                                                                                   The court shall presume that every electronic record purporting to be an agreement containing the digital signatures of the parties was so concluded by affixing the digital signature of the parties.

S.85B deals with the presumption as to electronic records and digital signature and reads as-

1) In every proceeding involving a secure electronic record, the court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

2) In any proceedings, involving secure digital signature, the court shall presume unless the contrary is proved that-:

         a) the secure digital signature was affixed by the subscriber with the intention of signing or approving the electronic record;

        b) except in the case of a s\secure electronic record or a secure digital signature,    nothing in this section shall create any presumption relating to authenticity and integrity of the electronic record or any digital signature.

S.85C deals with the presumption as to Digital Signature Certificates which read as-:

                                                                                                                                   The court shall presume, unless contrary is proved, that the information listed in Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.[99]

S.86 deals with the presumptions as to certified copies of a foreign judicial record which reads as-:

      The Court may presume that any document purporting to be certified copy of any judicial record of any country not forming part of India or of Her Majesty's dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records

     An officer who, with respect to any territory or place not forming part of India or Her Majesty's dominions, is a Political Agent, therefor, as defined in Section 3, Clause (43) of the General Clauses Act, 1897 (10 of 1897) shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.

           This section says that the court is given the judicial discretion to presume that certified copies of foreign records are genuine. The first eight presumptions noted above are compulsory presumptions in the sense that the judge is bound to raise the presumption in question. But the presumption as to foreign judicial records and the two presumptions that follow are in the discretion of the court in the sense that the court may or may not draw the presumption.

S.87 deals with the Presumption as to Books, Maps and Charts which reads as -:

                 The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts, and which is produced for its inspection, was written and published by the person, and at the time and place, by whom or at which it purports to have been written or published.

                  Often the books, charts, maps, etc. are produced before the court in proof of a fact-in-issue or a relevant fact and which appears from the book, etc. the Court may presume that any such book, map, and etc. was written by the person whose name is shown as that of the author and was published at the place where it says it was published.

S.88 deals with the Presumption as to Telegraphic Messages which reads as-:

                           The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the massage purports to be sent, but the Court shall not make any presumption as to the person by whom such massage was delivered for transmission.

                    The court may treat telegraphic message received, as if they were the originals sent, with the exception, that a presumption is not to be made as to the person,[100] by whom they were delivered for transmission and, unless the non-production of the originals is accounted for, secondary evidence of their contents is inadmissible. A telegram is a primary evidence of the fact that the same was delivered to the addressee on the date indicated therein.[101]

S.88A. deals with the Presumptions as to electronic messages which read as-:

                                                                                The court may presume that an electronic message forward by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the court shall not make any presumption as to the person by whom such message was sent.

Explanation- for the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (Za) of sub-section (1) of section 2 of the Information Technology Act, 2000.[102]

                                                                                                                    The section provides that the court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee corresponds with the message as fed into his computer for transmission. The court is not authorized to make any presumption as to the person by whom such matter was sent.

                                                                 The Explanation to the section talks about the meaning of the terms “addressee” and “originator”. It says that these will have the same meaning as is assigned to them in S. 2(1) (b) and (3) of the Information Technology Act, 2000. Section 2(1) (z) says that an addressee means a person who is intended by the originator to receive the electronic record but does not include any intermediary. Section 2(1)(z)  says that an originator means a person who sends, generates, stores or transmits any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person, but does not include an intermediary.          

S.89 deals with the Presumption as to due execution etc., of documents not produced which reads as:-

          The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.

                                                                                                                             Where a document has been called for but not produced before the court, the court shall presume that the document in question was duly signed, stamped and attested. The presumption is that the document is that the document was in all respects in accordance with the law. The presumption is compulsory and is not in the discretion of the court.

S.90 deals with the Presumption as to documents thirty years old and reads as:-

                                                                                                                        Where any document, purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the hand writing of any particular person, is in that person's hand writing, and in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation - Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin or if the circumstances of the particular case are such as to render such an origin probable.

                                                               A document which is thirty years old is presumed to be genuine. It is presumed to be genuine in all respects. But the presumption is in the discretion of the court. The court may, but is not bound, to presume that a thirty-year old document is genuine. This presumption. This presumption is provided for inS.90.

                                                                                                        The document should be thirty years old. “What is the meaning of its being thirty years old? Parties are not called upon to prove that the deed has been in existence for thirty years before the time of it production, the court is, unless it is impeached, to receive that as proof of the instrument.”[103] The date on the face of the instrument is prima facie evidence of its age. Where there was an action on a bill of exchange, and no evidence being offered of its age except the date which appeared on its face, that was to be a prima facie evidence of its date.[104] But evidence can be given of the fact that the date appearing on the instrument is wrong. In such a case thirty years would be computed from the date which is proved to be the date of the execution of the document.[105] Even where a document was not thirty years old when filed in the court but becomes so by the time that it is considered by the court as part of the evidence, the presumption will apply.[106]

The second condition for the presumption to apply is that the instrument should be produced from proper custody. The meaning of proper custody is given in the explanation. According to the explanation, proper custody means: -

a)      The place where the document in question would naturally be;

b)      Was under the care of a person with whom it would naturally be;

c)      Any custody which is proved to have had legitimate origin; or

d)     Under the circumstances of the case the custody from which the instrument is produced is probable.

                             S.90 nowhere provides that authenticity of the recitals contained in the document is proved, this by itself does not lead to the presumption the recitals contained in the document are also correct. It is open to the parties to raise a plea to the contrary within the limits permitted under sections 91 and 92.[107]it has been held that when a thirty years old copy of document is produced, the genuineness of the original cannot be presumed.[108]

                                                                     The ruling of the Privy Council and also that in Seethayya v. Subramaniya[109] were approved by the Supreme Court in Lakhi Baruah v. Padma Kanta Kalita[110]. The court held that a certified copy of the registered sale deed was not entitled to the benefit of the presumption.[111] A gift cum-will document which was produced from proper custody and was also thirty rears old was presumed to be genuine.[112]

S.90A deals with the presumption as to electronic records five years old and reads as:-

           Where any electronic record, purporting or proved to be five years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorized by him in this behalf.

Explanation- Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.

CHAPTER-VII

OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

S.91 deals with the Evidence of terms of contracts, grant and other dispositions of property reduced to form of document which 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 herein before contained.

Exception 1 - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person had 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.

Explanation 1 - This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.

Explanation 2 - Where there are more originals than one, one original only need be proved.

Explanation 3 - The statement, in any document whatever of a fact other than the facts referred to in this section shall not preclude the admission of oral evidence as to the same fact.

                              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 High court of Delhi, it did not permit oral evidence of the contents of a partition deed which deed was inadmissible being not registered.[113]

                              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 Xerox copy cannot be allowed. Allowing the party to confront the witnesses with Xerox copy of such evidence was held to be not permissible.[114] The section forbids the proof of the contents of a writing otherwise than by the writing itself. The section embodies the best evidence rule, thus declaring a doctrine of substantive law. Even a third party, who is seeking to prove a written contract, can prove it only by producing the writing. In this respect S.91 and 92 supplement each other. They are both based on the “best evidence rule” though they differ in some material particulars also.[115]

                           The Supreme Court held in Taburi Sahai v. Jhunjhunwala[116], 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. So is true of a will.[117] 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.[118]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.[119]

S.92 deals with the Exclusion of evidence or oral agreement and 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:

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.

Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.

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

                                       The principle laid 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, as between the parties to the document or their representatives, for the purposes of contradicting, varying, adding to, or subtracting from the terms of the document. In other words, no oral evidence can be given to qualify the terms of the document and their representatives-in-interest from giving oral evidence concerning the contents of the document. Other parties left free to give such evidence.[120]

                                                      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.[121]The court followed Bai Hira Devi v. Official Assignee [122] 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.” It was pointed out by the Madras High Court in its decision in K.S. Narasimhachari v. Indo Comml. Bank[123] that the consideration is a term of the contract that while the parties can give evidence under proviso (1) Of the section to show that the document was invalid because there was no consideration or there was failure of consideration or difference in the kind of consideration than that mentioned in the document, it will not be competent for him to prove a variation of the consideration recited in the document.         

EXCEPTIONS

1) Validity of document {proviso-1} the first proviso to S.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. The validity of a document may be questioned, for example, on ground that it was obtained by fraud, intimidation or illegality, or that the document was not duly executed, or that one of the parties was incompetent to contract, or  that there was a mistake of fact or of law or that there was no consideration or consideration had failed.[124]

2) Matters on which document is silent {proviso-2} 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. The terms which are expressly stated in the document cannot be allowed to be contracted by any oral agreement. Such evidence is allowed to be proved only on matters on which the document is silent. Secondly, in permitting the evidence of oral agreement the court is to have regard of the degree of formality of the document. If the document is extremely formal, evidence of an oral agreement shall not be allowed  even on matters on which the document is silent. A written agreement, for example, is silent as to the time of payment of the price. If there is any oral agreement as to the time of payment of the same may be proved.[125]

3) Condition precedent {proviso-3} 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. Where the parties to a promissory note payable on demand, orally agreed that payment would not be demanded for five years, the Supreme Court allowed the oral agreement to be proved.[126]

                                      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.[127]In a mortgagor’s suit for rejection it was held that oral evidence could be admitted to show that the document was not intended to be acted upon, that it was a sham document and that it was executed only as a collateral security. Facts, however, showed no evidence to that effect.[128]

4) Recession or modification {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.[129]

5) Usages and customs {proviso-5} the proviso, 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. Where goods sold are to be carried by the railways, but the contract does not mention as to who is to arrange for wagons, evidence may be offered that by the custom of the trade seller had to arrange for wagons.[130]

6) Relation of language of facts {proviso-6} every contract intended to apply to certain facts. The facts upon which the document is to operate are sometimes set out in the contract itself and sometimes not. Where, for example, a person transfers the whole of his property, but doesn’t describe or state where his property is. In such cases the property to which the document relates can be proved by oral evidence. Similarly, where a written contract says that it subject to the “usual clause”, the usage prevalent in a particular trade may be proved by oral evidence.[131] 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.[132]

In Abdullah Ahmed v. Animendra Kissen,[133]  the Supreme Court cited the following passage from Halsbury:

                       “The evidence of the conduct of the parties in this situation as to how they understood the words to mean can be considered in determining the true effect of the contract made between the parties. Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the facts done under it is a guide to the intention of the parties in such a case and [particularly when acts are done shortly after the date of the instrument.”[134]

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.

CHAPTER- VIII

AMBIGUOUS DOCUMENTS

                        A document is ambiguous when either its language does not show the clear sense of the document or its application to facts create doubts, how far oral evidence can be allowed to clarify the language or to remove the defect? These sections can be placed in two groups depending upon their type of defect shown by the document.

Ambiguities are of two kinds:

1)      Patent ambiguity, and

2)      Latent ambiguity.

                                        PATENT DEFECTS {S.93-S.94}

Meaning of Patent defects………

                                            Patent ambiguity deals with S.93 & 94. A patent ambiguity means a defect which is apparent on the face of the document. The document is apparently defective. Any person reading the document with ordinary intelligence would at once observe the defect. In such cases the principle is that oral evidence is not allowed to remove the defect. The reason for the rule is that the document being clearly or apparently defective, this fact must be or could have been known to the parties and if they did not care to remove it then it is too late to remove it when a dispute has arisen.

S.93 deals with the Exclusion of evidence to explain or amend ambiguous document and reads as:-

                  When language used in a document is, on its face, ambiguous of defective, evidence may not be given of facts which would show its meaning or supply its defect.

                                                                                                                                  If the document had mentioned no price at all, oral evidence of the price would have been allowed under S.92 as to a matter of the fact on which the document is silent but not when the document mentions price of ambiguous nature. No extrinsic evidence can be given to remove patent defect.[135] Where a lease deed left blanks at the place where the date of commencement should have been mentioned, but in another part it said that the first installment of rent would be paid on a certain date, the Allahabad High Court held that the date of the payment of the first installment could reasonably be fixed as the date of commencement.[136] A contract for the sale of a part of the land of 5 acres, described the part to be sold as “one acre of a front land.” It was held that what constituted the “front land” for this purpose was ascertainable. There was no confusion about the language used and, therefore, S.93 was not attracted.[137]

S.94 deals with the Exclusion of evidence against application of document of existing facts and reads as -:

                         When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.

                  This section applies when the execution of the document has been admitted and no vitiating fact has been proved against it. Where the document in question was a record of the proceeding of the Board and contained an admission under signature of the parties, it was held that an admission could be explained by the maker of it and, therefore, oral evidence of explanatory nature was admissible.[138]

                                    LATENT DEFECTS {S.95 – S.97}

Meaning of latent defects………

                                                        Latent defect means a defect which is not apparent on the face of the record. The document makes a plain reading. There is nothing apparently wrong with its language. But when an attempt is made to apply it to the facts stated in it, it comes out that it does not accurately apply to those facts. Thus the defect is not in language used in the document, but in the application of the language to the facts stated in it, such a hidden defect is known as a latent defect.

S.95 deals with the Evidence as to document unmeaning in reference to existing facts and reads as-:

                 When language used in a document is plain in it, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.

                                                                                                                             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. Where for example, a house is agreed to sell by a written deed. The house is described to be located at a particular place or in particular city. It turns out that the seller has no house at that place or in that city, but has a house in a nearby place and that has also been in the occupation of the buyer.  Evidence can be given to show that such e house was meant to be sold.

 S.96 deals with the Evidence as to application of languages which can apply to one only of several persons and reads as-:

                                                     When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one of several persons or things evidence may be given of facts which show of those persons or things it was intended to apply to.

                                  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.[139]

S.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 and reads as-:

                                                                                                        When the language used applies partly to one set of existing facts and, partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.

                       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.

Difference between Patent Ambiguity and Latent Ambiguity

S.98 deals with the Evidence as to meaning of illegible character, etc. and reads as-:

                                                                                                                                Evidence may be given to show the meaning of illegible or not commonly intelligible character, of foreign, obsolete, technical, local or provincial expressions, of abbreviations and of words used in a peculiar sense.

                         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. An artist agrees to sell “all his models”. Evidence can be given to show whether he, meant to sell all his models or modeling tools. Oral evidence is admissible for the purpose of explaining artistic words and symbols used in a document.[140]

S.99 deals with who may give evidence of agreement varying terms of document and reads as-:

                Person who is not parties to document or their representatives in interest may give evidence of any fact tending to show a contemporaneous agreement varying the terms of the document.

                 The parties to a document or their representative-in-interest cannot give evidence of a contemporary agreement varying the terms of the document. This disability is quite clearly contained in S.92. But this provision is modified by S. 99 in this extent that evidence of such an oral agreement can be given by a third party if he is affected by it.

S.100 deals with saving of provisions of India Succession Act relating to Wills and reads as-:  

                            Nothing in this Chapter contained shall be taken to affect any of the provisions of the Succession Act (X of 1965) as to the construction to Wills.

BIBLIOGRAPHY

1)          THE LAW OF EVIDENCE…………… AVTAR SINGH

2)          THE LAW OF EVIDENCE…………… BATUK LAL

3)          THE LAW OF EVIDENCE…………… M.MONIR

4)          EVIDENCE LAW………………………. RATANLAL &  DHIRAJLAL

5)          LAW OF EVIDENCE………….………. BASU

6)          LAW OF EVIDENCE………………….. UNIVERSAL LAW SERIES