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Report No. 69

III. Utility of the section

42.15. A detailed consideration of these two sections will be made in due course. We may, before doing so, take note of a criticism often made of the rule excluding alternative evidence of matters recorded in, or required to be recorded in, documents.

42.16. Criticism of tautology of present rule.-

This rul.- that is to say, the rule that the document is exclusive evidenc.- has been criticised as amounting to tautology. To quote from an article by Wedderbum:1

"More serious for our purposes is another limitation upon the parole evidence rule, one which causes the rule to be no more than a self-evident tautology. The rule applies only if the document is intended to be the whole contract. If, therefore the parties intended to make a contract partly oral and partly written, there is no objection to parole evidence being introduced to prove the oral terms, unless statute intervenes.

"thus, the "rule" comes to this: when the writing is the whole contract. the parties are bound by it and parol evidence is excluded; when it is not, evidence of the other terms must be admitted. To say this is to say little more than that the parties are bound, as usual by the terms which, from an objective point of view, were "intended" by them to be contractually binding;2 and the peculiar difficulties introduced by the writing have been conjured away. If that is correct, it is very easy to conclude, that the only question to be asked in such a case is: "Did the parties intend to set their oral stipulation side by side with the written document so as to make each an essential part of the bargain, or was the written document the sole respository of the contract?"3

1. K.W. Wedderburn Collateral Contracts, (1959) Camb LJ 58 (60).

2. See the discussion in Oscar Chess Ltd. v. Williams, (1957) 1 WLR 370 (CA).

3. Cheshire and Fifoot Contracts, per 100.

42.17. There may be theoretical force in the criticism. But it would be too much to say that the rule has no utility. The rule serves to emphasise the superior role of documentary evidence, and in the majority of cases, the argument that the document did not record all the terms, will fail. The rule at least throws the burden on the opposite party to show that the document did not record all the terms. Viewed in this light, the rule possesses considerable practical utility, whatever be the objections that could be advanced against it in theory.

IV. Scheme

42.18. Scheme of sections 91-100.-

This introductory discussion was intended to indicate the scheme and rational of the principal sections in the Chapter. A brief discussion of the scheme of the other sections in this Chapter of the Act will be useful at this stage. All these section.- sections 91 to 10.- dealing with the exclusion, by documentary evidence, of other evidence, are contained in Chapter 6. As already noted (a) when the terms of a contract, grant or other disposition of property, have been reduced to the form of a document, or (b) in all cases, in which any matter is required by law to be reduced to the form of a document, the document is, under section 91, the exclusive evidence of such terms or matters.

42.19. Under section 92, evidence of an oral agreement or statement cannot be admitted to contradict, vary, add to, or subtract from its terms, except in cases given in the provisoes to the section. Thus, these two sections lay down general propositions.

42.20. The general propositions in these two sections are to be read subject to sections 93 to 98, which permit oral evidence to be given to explain ambiguities, obscurities and illegible characters in documents. Further, these general propositions do not apply to persons who are not parties (section 99). And it is to be noted that the entire Chapter does not "affect" Wills (section 100), there being detailed provisions in the Indian Succession Act, 1925, on the subject of extrinsic evidence of Wills.

42.21. The basic scheme of the Chapter does not require much change, but a few points of detail require attention, and these will be discussed under the relevant sections.

42.22. As has been pointed out by the Supreme Court,1 the rule of exclusion enunciated in section 92 is supplementary to section 91. The two sections supplement each other; section 91 would be frustrated without the aid of section 92, and section 92 would be inoperative without the aid of section 91.

1. Bai Hira Devi v. Official Assignee, AIR 1958 SC 448.

V. Section 91

42.23. After this preliminary discussion, we proceed to consider the sections proper. Two cases are dealt with in section 91; these are to be found in the main paragraph of the section.

It provides as follows:

"91. 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 as admissible under the provisions herein before contained."

There are two exceptions to the section, in these terms-

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

Exception 2.-Wills admitted to probate in India may be proved by the probate."

We shall deal later with the significance of these Exceptions.1

1. See discussion relating to section 91-Exceptions, infra.s

42.24. Then, there are three Explanations. The first Explanation makes it clear that 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. Where there are more originals than one, one original only need be proved, according to the second Explanation. 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-the third Explanation makes that clear. There are five illustrations. According to illustration (a), if a contract be contained in several letters, all the letters in which it is contained must be proved. This illustrates the first Explanation.

According to illustration (b), if a contract is contained in a bill of exchange, the bill of exchange must be proved. This illustrates the main paragraph. Under illustration (c) if a bill of exchange is drawn in a set of three, one only need be proved. This illustrates the second Explanation. Illustration (d) takes a different case. A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion. Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible. This illustrates the third Explanation The third Explanation is also illustrated by illustration (e). A gives B a receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible.

VI. Section 91-Main Paragraph

42.25. Main paragraph.-

The main paragraph of the section has been the subject matter of numerous judicial decisions, but the points decided hardly disclose any need for amendment of the section. We do not therefore, pause to consider those decisions.

42.26. Requirement as to registration-Cases as to unregistered leases.-

It should also be pointed out that questions such as, what documents should or should not be registered, or what transactions should or should not be reduced to writing, are matters which do not concern section 91.

42.27. Leases.-

This aspect of the law is illustrated by leases. By the combined operation of section 107 of the Transfer to Property Act, 1882, sections 17 and 49 of the Indian Registration Act, 1908, and section 91 of the Evidence Act, where lease from year to year or exceeding a year or reserving an yearly rent is not registered, the terms of the lease cannot be proved either from the unregistered Kabuliyat or from oral evidence of the transaction.1

1. (a) Atul Krishna v. Zaheed, AIR 1941 Cal 102 (103) (Sen, J.);

(b) Ram Chandra v. Tama, 1912 ILR 36 Born 500 (503);

(c) Mahalakshmanna v. Suryanarayana, AIR 1928 Mad 1113.

Indian Evidence Act, 1872 Back

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