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Report No. 69

II. Documents

2.3. The rules governing the effect of documentary evidence.-

It will be convenient to begin with documentary evidence. In modern law1, it is the rule that, if the parties to any transaction have embodied their intentions in a document or a series of documents, no evidence may be given of the terms of the transaction except the document itself, or secondary evidence of its contents, when such evidence is admissible. Nor can the terms of the document be contradicted, altered added to, or varied, by oral evidence2. This is not a primitive principle. In fact, it was not fully established before the latter half of the seventeenth century; and the provisions of the Statute of Frauds had something to do with the modern scope of the rule3.

1. Holdsworth History of English Law, Vol. 9, p. 173.

2. Stephen Digest of the Law of Evidence, 95.

3. Wigmore, iv., 2411, 2426, referred to by Holdsworth History of English Law, Vol. 9, p. 173.

2.4. Sealed documents.-

That it was not a primitive principle is shown by the rules as to the effect of the production of the sealed documents-the records and the deeds. If those documents were adduced as a conclusive proof, they were much more than mere evidence. The party who was not prepared to deny their genuineness was absolutely bound-he was estopped1.

1. Holdsworth History of English Law, Vol. 9, p. 173.

2.5. Estoppel by deed-related documents.-

A statement made by the parties to a sealed writing was conclusive proof of the facts contained therein1. If, therefore, one of the parties to a litigation could produce a sealed writing which showed that the other was bound, he produced a proof as conclusive as a record2. The other party was estopped by his deed.

1. Holdsworth History of English Law, Vol. 9, p. 154.

2. "Anything contained in the writing cannot be any exception of the parties be removed", Y.B. 21, 22, Ed. I (R.S.) 436; cp. Y.B.B.Im. 2 Ed. II (S.S.) 68-69; 3 Ed. II (S.S.) 171 per Herle agr; Salmond Essays in Jurisprudence, 51-52.

2.6. Deed and record.-

The old custom of summoning the attesting witnesses with the jury'1, illustrates the transition from the older idea that the deed properly attested is a form of proof, to the newer idea that the proof is to be made by the verdict of the jury. The other party was estopped by his deed. That estoppel by deed grew naturally out of estoppel by matter of record is very clearly explained by Professor Wigmore2.

He says: "the legal value of the seal was the result of a practice working from above downwards, from the king to the people at large. It is involved, in the beginning, with the Germanic principle that the King's word is indisputable The king's seal to a document makes the truth of the document incontestable. This leads to the modern doctrine of the verity of judicial records For private men's documents, its significance is that the indisputability of a document sealed by the king marked it with an extra-ordinary quality, much to be sought after.

As the habitual use of the seal extends downwards, its valuable attributes go with it this extension of the seal (from the king to private persons) begins in the eleventh and is completed by the thirteenth century." The effect of the rule that the party is estopped by his deed, had no small influence upon the growth of the law as to documentary evidence in general3.

1. Holdsworth History of English Law, Vol. 1, p. 334.

2. Evidence iv, 3414, 2426.

3. Holdsworth History of English Law, Vol. 9, pp. 163 and 177.

2.7. Variation of written documents by oral evidence.-

The rule that written documents cannot be varied by oral evidence had its origin in the days when the summoning of witnesses to testify before the jury was a new thing. In the beginning, evidence was stated in the pleadings, and that is why a written document could not be varied by a mere averment1. This rigid approach gave rise to certain rigid rules as to the relationship between documentary and oral evidence, and this rigid approach gave rise to the evolution of strict rules in the construction of written documents2. Even the illegality of a transaction was not, initially, recognised as a defence which could be pleaded to a bond, and lawyers tried to interpret a deed with as little reference to outside facts as possible.

1. Holdsworth History of English Law, Vol. 9, pp. 176 and 219.

2. Holdsworth History of English Law, Vol. 7, pp. 392 and 394.

Indian Evidence Act, 1872 Back

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