(..13..)

ORAL AND DOCUMENTARY[1]

(Ss 59 to 100)

 

QUESTION BANK

1. Distinguish between primary and secondary evidence.
2. Examine exclusion of ‘oral’ by ‘documentary’ evidence.
3. ‘Oral evidence’ must be direct whereas the documentary evidence must be ‘primary ’, but Court has to draw certain presumptions. What are those?
4. To what extent ‘oral evidence’ to prove the contents of writing or variation there from is permitted?
5. Oral evidence must, in all cases be direct. Discuss stating the exemptions if any.
6. What is hearsay evidence? When is it relevant under the Indian Evidence Act?
7. What are “Primary Evidence” and “Secondary Evidence”? When can secondary evidence of a matter be given?
8. Discuss the provisions of the Indian Evidence Act regarding the admissibility of electronic records.
9. What are private and public documents? How are public documents proved?

SHORT NOTES

1. Primary evidence.
2. Thirty years old document.
3. Secondary evidence.
4. Hearsay evidence.
5. Documents.
6. Public Document.

SYNOPSIS

A] ‘ORAL EVIDENCE’ :-

1. ORAL EVIDENCE MEANS:-
2. ‘ORAL EVIDENCE’ MUST BE DIRECT’ (BEST EVIDENCE RULE) (S.60) –

Hearsay Evidence:

Exceptions to hearsay:-

1)       Res-Gestae (S.6):-

2)       Admissions and confessions (Ss. 18 to 24):-

3)       Statements made by persons who cannot be called as a witness (Ss. 32 and 33):-

4).      Statements in books of accounts and in public records (S.34 and 35):-

5)       Opinions of experts expressed in treaties offered for sale (S.60):-

1. DOCUMENTARY EVIDENCE (Ss. 61 TO 90):-
2. I) DOCUMENTARY EVIDENCE MEANS:-
3. II) HOW THE CONTENTS OF THE DOCUMENTS ARE TO BE PROVED?
4. a) Primary evidence (S.62):-

Proof of documents by primary evidence / (Best evidence rule) (S.64):-

1. b) Secondary evidence (S.63):-

III.      CASES IN WHICH SECONDARY RELATING TO DOCUMENTS MAY BE PERMITTED (S. 65)-

1. Where the original is in possession of the adversary party:-
2. When existence, condition, or contents of original have been admitted in writing:-
3. When the original has been destroyed or lost or cannot be produced:-
4. When the original is not easily movable –
5. When the original is a public document:-
6. When the original is a document of which an original copy is permitted by Law to be given in evidence:-
7. When the original consists of numerous accounts or other documents –

Degrees of Secondary evidence:-

1. MODE OF PROOF OF THE EXECUTION OF A DOCUMENT (SS.                     67 to 73):-

1)       Proof of signature and handwriting or person alleged to have signed or written document produced (S.67):-

2)       Proof of execution of document required by Law to be attested (S.68):-

3)       Proof where no attesting witness found (S.69):-

4)       Admission of execution by party to attested document (S.70):-

5)       Proof when attesting witness denies the execution (S.71):-

6)       Proof of a document not required by Law to be attested (S.72):-

1. PUBLIC DOCUMENTS (Ss. 74 to 78):-
2. A) Public and Private Document:-

1)      Public documents. (S.74):-

2)      Private documents. (S.75):-

1. B) Difference between ‘public’ and ‘private’ documents:-
2. Prepared:-
3. Available for inspection:-
4. Evidence:-
5. General Rule:-
6. Presumption:-
7. C) Modes of proving public documents (S.76 to 78):-
8. Certified copies of public documents (S.76):-
9. Proof by the production of certified copies (S.77):-
10. Proof of the official documents (S.78):-
11. VI) PRESUMPTIONS AS TO DOCUMENTS (SS. 79 TO 90):-
12. Presumption as to the genuineness of certified copies (S.79):-
13. Presumption as to documents produced as records of evidence (S.80):-
14. Presumptions as to Gazettes, newspapers, private Acts of Parliament, and other documents (S.81):-
15. Presumption as to Gazettes in electronic form (S.81-A):-
16. Presumption as to document admissible in England without Proof of seal or signature (S.82):-
17. Presumption as to maps or plans made by authority of Government (S.83):-
18. Presumption as to the collection of Laws and reports of decisions (S.84):-
19. Presumption as to power of attorney (S.85):-
20. Presumption as to electronic record and digital signature:-
21. Presumption as to certified copies of foreign judicial records (S.86):-
22. Presumption as to books, maps, and charts (S.87):-
23. Presumption as to telegraphic messages (S.88).

              Presumption as to electronic massage (S. 88A):-

13. Presumption as to due execution etc. of documents not produced (S.89):-
14. Presumption as to documents thirty years old (S.90):-
15. a) ‘Proper Custody’ explained –
16. b) Principal:-
17. c) Nature of Presumption:-
18. d) Presumption as to electronic records five years old. (S. 90A) –

VII.     EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE (Ss.                       91 to 100):-

1. A) Best evidence rule (Ss. 91 and 92):-
2. Facts invalidating the document:-
3. Separate oral agreement not inconsistent with the terms of the document.
4. Separate oral agreement as a condition precedent.

4)  Subsequent oral agreement residing or modifying the contract, grant, or disposition:-

5)  Usage or custom:-

6)  Facts showing the relation of the language of the document to existing facts.

7) Exception of S.91:-

1. B) Exceptions to the rule laid down under sections 91 and 92:-
2. Exclusion of evidence to explain or amend ambiguous document (S.93):-
3. Exclusion of evidence against application of document to existing facts. (S.94) –
4. Evidence as to document unmeaning in reference to existing facts (S.95):-
5. Evidence as to the application of language which can apply to one of several persons (S.96):-
6. Evidence as to the application of language to one of two sets of facts to neither of which the whole correctly applies (S.97):-
7. Evidence as to the meaning of illegible characters, etc. (S.98):- ­
8. Saying of provisions of Indian Succession relating to wills (S.100):

Facts may be proved either by oral or documentary evidence.

I.        ‘ORAL EVIDENCE’:-

What is ‘oral evidence’?

S.59 provides that all facts except the contents of the document may be proved by ‘oral evidence’. It lays down that except for the content of documents, all other facts can be proved by ‘oral evidence’. The document’s content must be proved by the document itself and not by ‘oral evidence’ (Exceptions provided).

‘oral evidence’ is defined in the first part of S.3 as –

1. a) all statements[2] which –
2. i) the Court permits, or
3. ii) requires to be made before it.
4. b) by witnesses
5. c) in relation to the matters of fact under inquiry.

Thus, the expression ‘oral evidence’ includes the statements of witnesses before the Court, which the Court either permits or requires to be made before it. The statement may be made by any method the witness can make. Thus, a dumb witness may communicate his knowledge of facts to the Court by signing or writing; in either case, it will be regarded as ‘oral evidence’.[3]

In R. v Abdullah.[4]

Fact – A woman was unable to speak because her throat was cut. She suggested the name of her assailant by the signs on her hand.

Issue – Can it be called a statement of evidence?

Held– It was held to be a verbal (oral) statement relevant as a dying declaration.

II.      ‘ORAL EVIDENCE’ MUST BE DIRECT[5]’ (BEST EVIDENCE RULE) (S.60)-

S.60 lays down conditions for ‘oral evidence’, i.e. it must be ‘direct’ or ‘original’. A witness can tell the Court only a fact of which he has first-hand personal knowledge. It means that he perceived the fact by any of the five senses, i.e. eye, ear, tongue, skin, and nose[6]. In other words, ‘oral evidence’ must not be hearsay. The section excludes hearsay evidence to be admitted.

S.60 provides that ‘oral evidence’ must, in all cases whatever, be direct, that is –

1. If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it.
2. If it refers to a fact which could be heard, it must be the evidence of a witness who says- he heard it.
3. If it refers to a fact which could be perceived by any other sense or in any manner, it must be the evidence of a witness who says- he perceived it by that sense or by that manner
4. If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

E.g.    In the case of a murder by poison, the medical expert, on the basis of his examination of the symptoms, gives an opinion that a particular poison caused the death of the deceased. The oral evidence of such an opinion and the symptoms on which the opinion is based, as given by the medical expert himself, would be direct evidence.

(1)      Provided that –

1. i) the opinion of an expert expressed in any treatise (book) commonly           offered for sale and
2. ii) the grounds on which such opinions are held,

iii)      may be proved by the production of such treaties,

1. iv) if the author is –
2. a) dead, or
3. b) cannot be found, or
4. c) has become incapable of giving evidence or
5. d) Cannot be called as a witness without an amount of delay or expenses, which the Court regards as unreasonable.

(2)      Provided also that –

1. i) if oral evidence refers to the existence or condition of any material thing other than a document.
2. ii) the Court may – if it thinks fit, require the production of such material thing for its production.

          This proviso relates to those cases in which secondary evidence of the contents of a written document is permitted to be given on account of the great inconvenience or impracticability (legal or physical) of producing the original.

E.g.    Inscriptions on walls, monuments, surveyor’s marks on boundary trees, notice boards warning trespassers, etc., are proved by copies or oral testimony (Rules 18 of order 18 of C.P.C. empower the Court to inspect any property or thing about which question may arise in a proceeding before it.

 The cardinal principle of the law of evidence is that the best available evidence must be brought before the Court. The provisions of Ss.64 and 91 are based on this rule. S.64 states that documents must be proved by primary evidence except where secondary evidence is allowed by the Act.

S.91 lays down that when the terms of the contract, grant, or any other disposition of property have been reduced to writing and in all cases in which a matter is required by law to be reduced to the form of writing, no proof of them can be given except the document itself, or secondary evidence if permissible by law.

Hearsay Evidence:

The expression ‘direct evidence’ or ‘original evidence’ is used in two senses: one to oppose circumstantial evidence (already discussed) and another to oppose hearsay evidence.

Hearsay evidence signifies the evidence heard and said. It is also called second-hand or unoriginal evidence. Hearsay evidence is the evidence learned by witnesses not through their senses but in the medium of a third person.

Thus, if A deposes that B told him that he saw C stabbing D, it is hearsay evidence, which is not admissible in Court.

Suppose, in a murder case, evidence as to the following facts is given –

1. a) that the accused was stabbing the deceased with a knife.
2. b) that the deceased was crying for help
3. c) that the accused ran away.

The evidence of a witness who has seen a stabbing or heard cries of the deceased for help or seen the accused running away is direct, but the evidence of a witness who has heard the above facts from somebody else is hearsay.

The reasons for discarding hearsay evidence are manifold. Its extrinsic weaknesses, its incompetency to satisfy the mind of a Judge as to the existence of a fact, the possibility of practice of fraud, etc., are the reasons for discarding hearsay evidence.

Exceptions to hearsay:-

In the following circumstances, hearsay may be admitted as evidence on the grounds of necessity or expediency, viz.

1).      Res-Gestae[7] (S.6):-

A person’s statement may be proved through another person who appears as a witness if the statement is a part of the transaction in issue. (Refer to topic 3, i.e. fact, for further details.)

2).      Admissions[8] and confessions[9] (Ss. 18 to 24):-

An admission of liability or confession of guilt which takes place outside the Court is proved through the testimony of a witness to whom the admission or confession was made. The principle behind its admissibility is that nobody will ordinarily say something against his interest or which incriminates him of an offence.

3).      Statements made by the persons who cannot be called as a witness (Ss. 32 and 33):-

It includes dying declarations, statements made in due course of business, statements against interest, statements giving an opinion as to public right or custom, etc.

Under S.33, evidence given by a witness in a judicial proceeding is relevant in the subsequent judicial proceeding if the witness is dead, cannot be found, or has become incapable of giving evidence, or is kept out of the way by the other party or if his presence cannot be obtained without unreasonable delay or expenses, provided that he should have been cross-examined in the previous proceeding and the question in issue is substantially the same.

4).      Statements in books of accounts and public records (S.34 and 35):-

Statements in public documents, such as the Acts of Parliament, official books, and registers, can be proved by the production of the document, and it is not necessary to produce before the Court the draftsmen of the document.

5).      Opinions of experts expressed in treaties offered for sale (S.60):-

(Refer to the above discussions in the proviso.)

B.       DOCUMENTARY EVIDENCE (Ss. 61 to  90):-

I)       DOCUMENTARY EVIDENCE MEANS:-

Document (S.3): –

               Section 3 defines ‘document’ means “any matter expressed or described upon any substance by means of letters, figures or marks, or by more of these means, intended to be used or which may be used, to record that matter”.

Illustrations: –

1. a) A writing is a document
2. b) Words printed, lithographed, or photographed are documents.
3. c) A map or plan is a document.
4. d) An inscription on a metal plate or stone is a document.
5. e) A caricature is a document.

          This definition of ‘document’ is similar to that given in S.29 of the Indian Penal Code. The definition of ‘document’ is given in a very wide sense. Generally, ‘document’ means ‘written paper’, but according to the definition here, document means and includes matters expressed or described on all material substances using letters, figures, or marks. Thus, writing an inscription on a metal plate or stone is a document. Writing on a wall is a document. Hence, a document means all material substances on which human thoughts are recorded. All articles seized, weapons, and things recovered (i.e. Mudemmal) are treated as documents.

Documentary evidence is superior to oral evidence in many respects. Documentary evidence is in permanent form, whereas, in oral evidence, memory is always subject to decay. There is a possibility of falsehood in oral evidence, whereas there is a presumption that the document does not speak a lie.

In this topic, we will deal with the following?

1. How are the contents of the documents to be proved? (Ss.61 to 66)
2. How is the document to be proven to be genuine? (Ss.67 to 78).
3. What are the presumptions about the various kinds of documents? (Ss. 79 to 90)
4. When is oral evidence excluded from documentary evidence? (Ss.91 to 109)

II)      HOW THE CONTENTS OF THE DOCUMENT ARE TO BE PROVED?

The contents of the documents may be proved either by primary evidence or secondary evidence. (S.61)

a)       Primary evidence (S.62):-

Primary evidence means the documents themselves produced for the court’s inspection.

Explanation 1 –

(i)       Where a document is executed in several parts, part is Primary evidence of the document.

(ii)      Where a document is executed in counterpart. (Each counterpart being executed by one or some of the parties only)-each counterpart is primary evidence against the parties executing it.

E.g.    In the transaction of the cheque, the main cheque is signed by the drawer for encashment (therefore, it is primary evidence against him), and the counterfoil may be signed by the payee of the cheque so that it will be Primary evidence against the payee.

Explanation 2 –

(i)       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.

(ii)      But where they are all copies of a common original, they are not primary evidence of the contents of the original.

Illustration:-

A person is shown to have had a number of placards, all printed at one time from one original; any one of the placards is Primary evidence of the contents of any other, but no one is Primary evidence of the contents of the original.

Proof of documents by primary evidence / (Best evidence rule)[10] (S.64):-

S.64 insists that documents must be proved only by Primary evidence except in cases mentioned under S.65. Primary evidence is the evidence which law requires to be given first (S.64). The general rule requiring primary evidence to be given of the document is based on best evidence rule. An original document is the first permanent record of the transaction. It is first-hand evidence and presumptively the most reliable.

However, in certain exceptional circumstances mentioned under S.65, the contents of the documents in question are allowed to be proved by secondary evidence[11].

Thus, the best evidence rule states that the contents of the documents before the court are to be proved by Primary evidence. Secondary evidence is to be allowed in certain exceptional circumstances only.

b)       Secondary evidence (S.63):-

Secondary evidence means and includes –

1. Certified copies[12] given under the provisions hereinafter contained.
2. Copies made from original by a mechanical process, which in themselves ensures the accuracy of the copy and copies compared with such copies[13].
3. Copies made from and compared with the original[14].
4. Counterparts of the documents as against the parties who did not execute them[15].
5. Oral accounts of the contents of a document given by some person who has seen it.

Illustrations –

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy but afterwards compared with the original is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original nor an oral account of a photograph or machine copy of the original is secondary evidence of the original.

Secondary evidence may be given under certain circumstances (mentioned under S.65) in the absence of better evidence, i.e., primary evidence. As a general rule, secondary evidence is not admissible until the non-production of Primary evidence is satisfactorily accounted for. S. 65 lays down the circumstances under which Secondary evidence of the kinds mentioned in S.63 becomes admissible. The definition of secondary evidence under S.63 is inclusive and exhaustive.

S.63 deals with five kinds of Secondary evidence:-

1.       Certified copies:-

S.76 enables every public officer with custody of a public document to give a certified copy of it on demand to any person with the right to inspect on payment of legal fee.

S.77 makes certified copies of a public document admissible in Proof of the contents thereof.

S.79 requires every document purporting to be a certified copy to be presumed to be genuine.

Public documents other than those mentioned in S.76 and 77 may be proved by copies certified in the manner described in S.78.

S.86 states that a Court may presume that any document purporting to be a certified copy of any foreign judicial record is genuine and accurate.

2.       Copies made from the original by a mechanical process.

           According to this clause:-

1. i) Copies made from original by a mechanical process; and
2. ii) Copies compared with such copies,

are the Secondary evidence of the original.

According to the first portion of this clause, a photograph (Xerox) of an original is Secondary evidence of its contents if it is proved that the thing photographed was the original.

(Refer to illustration (a)). The negatives and photographic prints are secondary and not primary to the original.

The second portion makes a copy of the copy admissible as secondary evidence, provided it must have been compared with the original or with the copy mechanically produced. (Illustration b)

3.       Copies made from or compared with the original:-

This clause enables a copy made from the original (though not by a mechanical process) to be used as secondary evidence. Similarly, compared with the original, a copy prepared by another copy is secondary evidence.

Generally speaking, a copy of a copy is not admissible as Secondary evidence, but in the following cases –

1. i) Copy prepared by a mechanical process and
2. ii) Copies of a copy compared with the original. (See Illustration C)

are admissible as secondary.

4.       Counterparts of documents:-

The rule is that a counterpart is primary evidence against the parties executing it, and Secondary evidence is against those who did not.

Thus, the signature obtained by the drawee’s drawer on the counterpart of a cheque is primary evidence of the cheque’s being obtained against the drawee but secondary against the drawer.

5.       Oral account of the content of a document by some persons who have seen it :

Sometimes, it so happens that neither the original nor the certified copy of the document is available. In such a case, it is enough if somebody gives an oral account of the document which he has read. On the other hand, the oral account of the document’s contents given by a person who has merely seen it with his own eyes but cannot read it is not admissible as secondary evidence.

III.     CASES IN WHICH SECONDARY EVIDENCE RELATING TO DOCUMENTS MAY BE PERMITTED (S.65):-

The general rule is that the document is to be proved by Primary Evidence, except in the cases hereinafter mentioned.

1.       Where the original is in possession of the adversary party[16]:-

When the original is in the possession or power of the person against whom it is sought to be proved, secondary evidence of the document’s contents may be given. Secondary evidence of the contents of the document may be given when the original is in the possession or power –

1. of the person against whom the document is sought to be proved; or
2. of any person out of reach of, or not subject to the process of the Court, or
3. of any person legally bound to produce it and when after notice (S. 66), such person does not produce it.

Notice to produce a document[17] (S.66):-

The party who wants to prove the contents of the document by Secondary evidence is required to give notice of its production to the adverse party. Suppose previous notice of production of a document to an adverse party is not given to the party purposing to give. In that case, secondary evidence cannot be secondary evidence of the contents of the document.

However, S. 66 has laid down certain exceptions to the above rule. Viz. –

(1).  When the document to be produced is itself a notice;

(2).  When from the nature of the case, the adverse party must know that he will be required to produce it;

(3).  When it appears that the adverse party has obtained possession of the original by force or fraud;

(4).  When the adverse party or his agent has the original in the Court;

(5).  When the adverse party or his agent has admitted the loss of the document;

(6).  When the person in possession of the document is out of reach or not subject to the process of the Court.

2).      When the existence, condition, or contents of the original have been admitted in writing[18]:-

When the original’s existence, condition, or contents have been proved to be admitted in writing by the person against whom it is to be proved or by his representative in interest, Secondary evidence is admissible under this clause. S.22 of the Act also states that written admission as to the contents of documents is always admissible.

3).      When the original has been destroyed or lost or cannot be produced:-

When the original is destroyed or lost or the party offering the evidence of its contents cannot, for any other reason (not arising from his own default or neglect, produce it in reasonable time), secondary evidence of the document’s contents may be given.

In Chandam V. Longa Bai[19].

Held—Secondary evidence is allowed if it is proved that the document was eaten by rats.

4).      When the original is not easily movable –

Secondary evidence of its content may be allowed when the original is such that it cannot easily be moved. Thus, copies or oral testimony prove inscriptions on walls, monuments, survey work, and the like.

5).      When the original is a public document[20]:-

When the original is a public record (under S.74 of the Evidence Act), Secondary evidence of its content is admissible under this clause.

In this case, Secondary evidence is admissible even though the original exists. This exception is allowed for the sake of convenience.

6.       When the original is a document of which a certified copy is permitted by Law to be given in evidence:-

This clause refers to any document other than a public document of which a certified copy is permitted by this Act or any other Act in force in India to be given in evidence.

S.57 of the Registration Act, S.4 of Bankers Book Evidence Act 1891, S.4 of Power of Attorney Act 1892, Order X Rule 19 of C.P.C. permits certified copies to be given in evidence without producing the original.

7.       When the original consists of numerous accounts or other documents[21] –

This clause permits Secondary evidence in a case where numerous documents, whether books of accounts or other documents, are available to the Court but not convenient for the Court to examine. The object of this clause is to save public time and convenience. In such a case, any person skilled in the examination of such documents may give evidence.

Degrees of Secondary evidence:-

The general rule is that there are no degrees in secondary evidence, and the party is free to adduce any form of Secondary evidence contained in S.63. But the last four paragraphs of this section (i.e. S. 65) provide an exception to the general rule. In clauses (1), (3), and (4), any form of Secondary evidence is admissible. In clause (2), only written admission is admissible as secondary evidence. In clauses (5) and (7), where the original is a public document or of which a certified copy is permitted by law to be given in evidence, a certified copy is the only form of secondary evidence permitted. Lastly, in clause (7), only the general result of the document can be given by a person skilled in examining such documents.

IV.     MODES OF PROOF OF THE EXECUTION OF A DOCUMENT[22]            (Ss.67 TO 73):-

The mere filing of a document in a Court is not enough to make a document a part of the record. Its authentication or genuineness needs to be proved. Ss. 67 to 73 deal with the various authentication modes or determining the genuineness of documents. Ss. 68 to 71 deal with the documents required by law to be attested. Ss. 68 to 71 lay down a general mode of Proof of ‘execution of the document. Executed means ‘signed’. Ordinarily, ‘executing’ a document is signing a document as a consenting party thereto. It is a formal execution.

1).      Proof of signature and handwriting of a person alleged to have signed or written document produced (S. 67):-

When a document filed before a Court is alleged to have been signed or written (Wholly or partially) by any person, it must be proved that it was signed or written by that person whose signature or writing it purports to be.

In Muddasani Sarojana v. Muddasani Venkat Narsaiah. (AIR 2007 AP 50)

Facts: A suit was filed for recovery of possession of a property. Dispute as to title deed arose. The deed of title was not proved by examining the signatory thereto when they were available.

Held:- that the signature and handwriting of a person on a written document can be proved only by examining the person concerned. When the person is very much available and alive, an attempt to prove his signature or handwriting by examining a third person as a witness would have its own drawbacks. The Court draws an adverse inference.

Modes of proving a signature or handwriting[23]:-

1. By calling a person who signed or wrote a document.
2. By calling a person in whose presence the document was signed or written.
3. By calling a handwriting expert. (S.45)
4. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written. (S.47)
5. By comparison by the Court of the disputed signature or writing with some admitted signature or writing (S.73).
6. By Proof of admission by the person who has alleged to have signed or written the document that he signed or wrote it.
7. By the statement of the deceased professional scribe[24], made in the diary in the course of business, that the signature in the document is that of a particular person.
8. A signature is proved to have been made if it is shown to have been made at the request of the person by some other person, e.g. by the scribe who signs on behalf of the executants.
9. By the other circumstantial evidence.

Proof as to digital signature –

Except in the case of a secured, digital signature, if the digital signature of any subscriber is alleged to have been offered to an electronic record, the fact that such digital signature of the subscriber must be proved.

2) Proof of execution of document required by law to be attested[25] (S.68):-

It prescribes that the document required by law to be registered cannot be used in evidence unless at least one attesting witness is called to prove its execution, provided he is alive and is subject to the process of the Court. However, when attestation is optional, a party can give such evidence as he pleases. To ‘attest’ is to bear witness to a fact. The term ‘attested’ means that a person has signed the document by way of testimony to the fact that he saw it executed; the law does not require a particular form of Proof in such a case.

In some cases, attestation is a formality, whereas in others, it is compulsory. The object of attestation is to provide proof of the document’s genuineness.

Attestation of a will[26]:-

Two or more witnesses must attest a will governed by the Indian Succession Act –

–         each of whom has seen the testator[27] sign or affix his mark to the will, or has seen some other person sign the will in the presence or by the direction of the testator, or

–         has received from the testator a personal acknowledgement of his signature or mark or

–         of a signature of such other person, and

–         each witness must sign a will in the presence of the testator.

3).      Proof where no attesting witness was found[28] (S.69):-

This section gives the mode of proving a document required by law to be attested when the attesting witnesses cannot be found.

S.69 lays down that –

–         if all of the attesting witnesses are dead or

–         if all or any one of them is not capable of giving evidence or

–         if the document purports to be executed in the United Kingdom,

–         the Court cannot compel the production of attesting witnesses.

In such a case, it is to be proved by some witnesses that the signature on the document is in the handwriting of the person by whom it purports to have been executed and also that the attestation of one of the attesting witnesses is in the handwriting of that witness.

For if ‘A’ wants to prove the ‘sale deed’ executed by B and attested by C and D. If C and D are dead, they cannot depose. B denies execution of the sale deed. ‘A’ produces one F who deposes that he is familiar with and recognizes B’s handwriting and that the signature on the sale deed is that of B. He further deposes that he knows and recognizes the handwriting of attesting witness C, and the signature purports to be that of the attesting witness. The attestation is proved.

S.69 is an exception to the rule laid down under S.68.

4).      Admission of execution by party to attested document (S.70):-

If, in a case, a document required by law to be attested is produced in a proceeding, and if the executants admit its execution, it shall be sufficient Proof of its execution against him.

If, in the above example of execution of a sale deed filed by A, B admits it, it is presumed that B will execute the sale deed.

5).      Proof when the attesting witness denies the execution (S.71):-

If the – (i) attesting witness denies or

(ii) does not recollect the execution of the document

(iii) its execution may be proved by other evidence.

Other evidence in the case may be the writer of the deed or any other witness present at the time of execution; he may be called to prove the execution of the document. However, the mere identification of the executor’s signature by a witness is not enough because the signature might have been taken on blank paper. He must prove the execution of a document by executants.

6).      Proof of a document not required by Law to be attested (S.72):-

An attested document not required by law may be proved as unattested.

V.       PUBLIC DOCUMENTS[29] (SS. 74 TO 78):-

S.74 defines ‘public documents’, S.75 defines ‘private documents’, and Ss. 76 to 78 deal with the modes of Proof for proving the contents of the public document.

A)      Public and Private Document[30]­:-

1)       Public documents[31]. (S.74):-

All documents may be classified either as public or private documents. The following documents are public documents: –

(1) documents forming the acts or records of the acts ­

(i)  of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial, and executive, of any part of                           India or the Commonwealth, or a foreign country;

(2) public records kept in any State of private documents.

A public document is prepared by a public servant to discharge his official duties.

2)       Private documents. (S.75):-

All other documents which are not public are private. This means that all documents except public documents are private documents. (Modes of Proof of private documents are discussed earlier in Ss.67 and 72)

B)      Difference between ‘public’ and ‘private’ documents –

1.       Prepared:-

Public Documents are prepared by public servants to discharge their official duties, whereas private documents are prepared by private persons in their private interest.

2.       Available for inspection:-

Public documents are available for inspection to the general public in public offices during office hours after payment of fixed fees. However, private documents are kept in the custody of a person to whom they belong and are not available for inspection to the general public.

3.       Evidence:-

Secondary evidence (certified copies) of public documents is admissible, whereas secondary evidence (Xerox, etc.) of a private document is not admitted except provided under S.65

4.       General Rule:-

As a general rule, a public document is to be proved by secondary evidence, whereas a private document is to be proved by primary evidence (i.e. original).

5.       Presumption:-

The court is bound to presume the genuineness of public documents from their certified copies, whereas no such presumption can be drawn from secondary evidence of private documents.

C)      Modes of proving public documents[32] (S.76 to 78)

The following are the modes of proving public documents:-

1.       Certified copies of public documents (S.76):-

S.76 defines the term ‘public document’ and the persons who can issue and receive certified copies.

Every public officer with custody of a public document can give a certified copy to such a person who has the right to inspect it. It is to be given on demand and payment of legal fees (documents.).

Such copy –

(i)       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,

(ii)      any such certificate shall be dated and subscribed.

(iii)     by such officer with his name and his official title,

(iv)     shall be sealed (whenever such officer is authorised by Law to make                                         use of seal), and

(v)      Such copies that are certified shall be called certified copies.

Ss.61 to 73 lays down general provisions regarding Proof of private documents, whereas Ss.76 to 78 deals with the special modes of Proof related to public documents.

2.       Proof by the production of certified copies (S.77):-

It lays down that certified copies mentioned above may be produced as Proof of the contents of the public documents or part of the public documents.

The word ‘may’ denotes that the content of a public document may be proved in any other manner.

3.       Proof of the official documents (S.78):-

S.78 provides special modes of proving the contents of various kinds of public documents like government statutes, legislature proceedings, etc.

To be proved	Modes of proving
Acts, orders, or notifications of the Central 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’s Representative:
The proceedings of the Legislatures –	by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed by order of the Government concerned:
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;
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;
the proceedings of a municipal body in (a State), –	by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;
public document 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.

VI)     PRESUMPTIONS AS TO DOCUMENTS[33] (SS. 79 TO 90):-

‘Stephen’ defines ‘presumption’ as –

(i)       a rule of Law

(ii)      that Courts and Judges shall draw

(iii)     a particular inference from a particular fact or particular                                      evidence

(iv)     unless and until the truth of such inference is disproved[34].

In other words, the presumption is an inference drawn by the Court to the truth of a particular fact from other known or proved facts. It is the rule of evidence that the burden of proving fact (burden of Proof) lies on him who asserts the fact positively or upon him who will fail if the evidence is not brought. Therefore, in civil cases, a plaintiff has to prove his case, whereas, in criminal proceedings, the prosecution has to prove a case against the accused beyond a reasonable doubt. But when a law allows presumption, the party does not need to prove that fact. e.g. According to  S.139 of the Negotiable Instruments Act, it is presumed that when one person issues a cheque or negotiable instrument in favour of another, it is issued to discharge some liability. Accordingly, Matrimonial Laws presume that when the child is born out of valid wedlock, it is a legitimate child of his father. In these cases, the person in whose favour the cheque is drawn (drawee) need not prove the liability of the drawer of the cheque in his favour. Similarly, the wife who has filed suit for maintenance for herself and a child need not prove that the child has begotten to her from sexual intercourse with her husband and nobody else.

Ss.79 to 90 deals with the presumptions as to the genuineness of a certain kind of document. In it, presumptions under Ss.79 to 85 and 89 are obligatory because the Court is bound to draw them, whereas presumptions in Ss.86 to 88 and S.90 are merely permissive, i.e., the Court may or may not draw them.

These sections are based on the maxim ‘Omnio praesumunatur rite esse acta’; that is, all acts done are presumed to be rightly done.’

1.       Presumption as to the genuineness of certified copies (S.79):-

It lays down that when any document is produced before a Court which purports to be a certified copy, duly certified by an officer of the Government, ‘the Court shall presume’-

1. a) that the document is genuine, and
2. b) that the officer by whom he purports to be certified held that time,                               the official character which he claims in the document,

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

2.       Presumption as to documents produced as records of evidence (S.80):-

The court shall draw presumptions as to the following two types of documents –

1. a) a document purporting to be the record of the evidence of a witness given in a judicial proceeding and
2. b) a document purporting to be the record of the statement or confession of the prisoner taken in accordance with the law.

The Court shall presume from the above documents –

(i)       that the document is genuine.

(ii)      that the statements as to circumstances under which they were made by the officer who affixed his signature are true.

(iii)     that such evidence, statement or confession was duly taken.

In Hem Raj v. the State of Ajmer[35].

Held—Under S. 80, there is no presumption that the confession recorded was voluntary; the prosecution must prove the voluntary nature of the confession. Similarly, there is no presumption as to the deponent’s identity. The prosecution must prove it.

3.       Presumptions as to Gazettes, newspapers, private Acts of Parliament, and other documents (S.81):-

It provides that the Court shall presume the genuineness of every document purporting to be –

(a)      an official Gazette being –

(i)       the London Gazette,

(ii)      the Gazette of India,

(iii)     the Gazette of any State Government, or

(iv)     the Gazette of any colony, dependency, or possession of the British Crown.

(b)      a newspaper or Journal,

(c)      a copy of the private Act of Parliament of the United Kingdom printed by the Queen’s Printer, and

(d)      a document directed by any Law to be kept by any person if such document is kept substantially in the form required by the Law and is produced from proper custody.

4.       Presumption as to Gazettes in electronic form (S. 81-A):-

The Court shall presume the genuineness of every electronic record.

(i) purporting to be the official Gazette, or (ii) purporting to be an electronic record directed by Law to be kept by any person if such electronic record is kept substantially in the form required by the Law and is produced from proper custody.

5.       Presumption as to document admissible in England without Proof of seal or signature[36] (S. 82):-

It provides that if a document is admissible in proof of any fact, not requiring formal proof of the seal or stamp or signature authenticating it, it is in any court of justice in England or Ireland, and such document shall also be admissible in India. About such documents, the Court shall presume that –

(i)       the seal or stamp or signature authenticating it is genuine.

(ii)      The person signing it held, at the time he signed it, the judicial or official character which he claimed.

6.       Presumption as to maps or plans made by the authority of Government (S. 83):-

It provides that the maps or plans made under the authority of the Central or State Government shall be presumed to be accurate, while those made for any cause must be proved accurate.

7.       Presumption as to a collection of Laws and reports of decisions (S. 84):-

It lays down that a presumption of genuineness shall be drawn as to the foreign statute and Law reports. This section is to be read with S.38[37].

8.       Presumption as to power of attorney (S.85):-

The Court shall presume that every document purporting to be a power of attorney and to have been executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Indian Consul or Vice – -Consul or representative of the Central Government, was so executed and authenticated.

9.       Presumption as to electronic record and digital signature:-

1. a) Presumption as to electronic agreement (S.85A):-

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.

1. b) Presumption as to electronic records and digital signature (S.85B):-

(l) In any proceedings involving a secure electronic record, the Court shall presume, unless the 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 a secure digital signature, the Court shall presume, unless the contrary is proved, that –

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

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

1. c) Presumption as to digital signature certificate (S. 85 C):-

The Court shall presume, unless the contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information, which has not been verified if the subscriber accepted the certificate.

10.     Presumption as to certified copies of foreign judicial records (S. 86):-

It lays down that a record of the proceedings of the Court of Justice will be presumed to be genuine and accurate if it is certified in the manner laid down in this section. In order to be admissible, a copy must be certified by an Indian or British representative in the foreign country, or that state must certify that the copy is certified in a manner commonly used in that state for the certification of a copy of judicial records.

11.     Presumption as to books, maps, and charts (S. 87):-

The Court may presume that any map book, etc., produced before it is written by the person whose name is shown as the author and was published at the place where it says it was published.

This section is to be read with S.36 and S.57 (3).

12.     Presumption as to telegraphic messages[38] (S.88). –

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 message purports to be sent. Still, the Court shall not make any presumption, as to the person by whom such message was delivered for transmission.

Presumption as to electronic massage (S. 88 A):-

The Court may presume that if an electronic message forwarded 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 the 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.

13.     Presumption as to due execution, etc., of documents not produced (S.89):-

It lays down that if a document required to be produced is not produced (by a person) after a notice has been given, the Court shall raise a presumption that such document was attested, stamped, and executed in the manner required by the Law.

14.     Presumption as to documents thirty years old (S.90):-

It provides that –

When any document –

1. a) purporting and proved to be thirty years old
2. b) is produced in the Court,
3. c) from custody – which, in the opinion of the Court, is proper,

then, the Court may presume –

(i)       that the signature and every part of the document which purports to be in the handwriting of any particular person is in that person’s handwriting and

(ii)      that it was duly executed and attested by the person by whom it purports to be executed and attested.

a) ‘Proper Custody’ explained –

Explanation to this section defines ‘proper custody’ as follows –

Documents are said to be in proper custody –

1. a) if they are in the place in which, and
2. b) under the care of the person with whom – they would naturally be.

However, no custody is improper –

1. a) if it is proved to have had a legitimate origin or
2. b) if the circumstances of the particular case are such as to render such origin probable.

Illustrations

(a)    A has been in possession of a landed property for a long time. He produces from his custody deeds relating to the land showing his title to it. The custody is proper.

(b)   A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.

(c)    A, in connection with B, produces deeds relating to lands in B’s possession that were deposited with him by B for safe custody. The custody is proper.

b) Principal:-

S.90 embodies the rule of necessity. Ordinarily, the execution of a document must be proved by a witness who has executed it, and if it is required by law to be attested, at least one attesting witness must be called. In the cases in which the documents are produced in evidence long after their execution, all persons who attested to or witnessed the execution of the documents may have expired. If, in such cases, ordinary rules of proving execution are adhered to, many genuine documents would remain unproven. Therefore, to avoid this consequence, S. 90 is inserted.

It lays down that when a document purporting or proved to be 30 years old is produced in a Court from the custody which the Court considers to be proper – the Court may presume that the signature and every other part of such document is of that person whose signature or writing it purports to be. Moreover, in the case of a document executed and attested – it shall be presumed that it was duly executed and attested by the persons by whom it purports to be executed and attested.

c) Nature of Presumption:-

The expression ‘may presume’ used in this section clearly suggests that the Court has discretionary power to presume or not to presume. The Court, while drawing a presumption, must exercise considerable care and caution and take into consideration all surrounding circumstances[39]. But if the document contains any error, overwriting, or other defects, the Court shall refuse to draw a conclusion of genuineness.

d) Presumption as to electronic records five years old. (S.90 A) –

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 authorised 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 should be, but no custody is improper if it is proved to have a legitimate origin or the circumstances of the particular case are such as to render such an origin probable.

This Explanation applies also to section 81A.

VII.    EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE (Ss.91 to 100)

Ss. 91 to 100 deals with the topic of the exclusion of oral by documentary evidence.

S.91 and 92 lay general rules regarding documentary evidence, i.e. best evidence. In other words, the document’s contents are to be proved by original (i.e., primary) or secondary evidence. On the other hand, Ss.93 to 100 lays down exceptions to the best evidence rule under Ss.91 and 92. Ss.93 to 100 permit oral evidence to explain the document.

A)      Best evidence rule[40] (Ss. 91 and 92):-

1)       Evidence of terms of contracts, grants, and other dispositions of property reduced to the form of document (S.91):-

It lays down that –

1. a) When the terms of

(i)       a contract, or

(ii)      of a grant, or

(iii)     of any other disposition of property – have been reduced to the form of writing and

1. b) In all cases in which any matter is required by Law to be reduced to the form of a document.
2. c) No evidence shall be allowed except the document itself or secondary evidence of its contents (in cases in which it is admissible under the rules governing the admissibility of secondary evidence).

Exception I. 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 may be proved by probate.

Explanation I. 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 needs to 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.

Illustrations

(a) If a contract is contained in several letters, all the letters in which it is contained must be proved.

(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.

(c) If a bill of exchange is drawn in a set of three, one only needs to be proved.

(d) 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 verbally on another occasion.

Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.

(e) A gives B a receipt for money paid by B.

Oral evidence is offered of the payment. The evidence is admissible.

2)       Exclusion of evidence of oral agreement (S.92):-

This section also recognizes the superiority of documentary evidence over any other evidence in proof of a matter reduced to the form of a document.

It lays down that –

1)       When terms of

(i)       a contract, or

(ii)      a grant, or

(iii)     any other disposition of property, or

2)       any matter required by Law to be in writing,

3)       have been reduced to the form of a document, and

4)       proved as required under S.91 either by

(i)       production of the original document or

(ii)      by secondary evidence of its contents.

No evidence of any oral agreement or statement shall be admitted; as between the parties to the instrument or their representatives in interest for the purpose of –

1. a) contradicting
2. b) varying
3. c) adding to, or
4. d) subtracting from its terms.

Illustrations

(a) An insurance policy affects goods “In ships from Calcutta to London”. The goods are shipped in a particular ship which is lost. The fact that the particular ship was orally excepted from the policy cannot be proved.

(b) A agrees absolutely in writing to pay B Rs.100 on the first of March. 1873.

The fact that, at the same time, an oral agreement was made that the money should not be paid till the thirty-first of March cannot be proved[41].

Relation between S.91 and 92:–

1. Both Ss. 91 and 92 are based on the best evidence rule. They supplement each other.
2. S.92 applies only after the terms of the document are proved in accordance with the requirements of S.91; in this way, they supplement each other.
3. In S.92, the words ‘as between the parties’ indicate that the section document applies where no duties exist. In other words, it will not apply to decrees, wills, etc., to which there are not two parties. S.91 applies to bilateral and unilateral documents.
4. S.92 applies only between the parties and their representatives in interest to the document and not to a stranger, whereas S.91 applies to any person who wishes to prove the terms of the document.
5. S.91 excludes all evidence other than a document for proving the terms of the document, but S.92 excludes only oral agreement or statements varying, contradicting, adding to, or subtracting from the terms of documents.
6. S.91 is wider and applies in all cases, whereas S.92 does not apply in all cases.
7. Proviso 1 to 6 lay down exceptions to the general rule contained in S.92. Whereas exceptions to S.91, in addition, include exceptions provided in S.92.

2)       Exceptions to S.91:-

As discussed earlier, the appointment of a public officer, will, and extraneous facts are exceptions to S.91; similarly, proviso 1 to 6 to S.92 provides an exception to the general rule of best evidence. Under these six exceptional cases, oral evidence may be adduced by a party to any written contract, grant, or any disposition of property to contradict, vary, add, or subtract from its terms when the terms of such writing have been proved according to S.91.

1.       Facts invalidating the document (Proviso l) –

          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 of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.

2.       Separate oral agreement not inconsistent with the terms of the document.

Illustrations (f), (g), and (h) are examples of the exceptions contained in this proviso.

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

3.       Separate oral agreement as a condition precedent.

Proviso (3) The existence of any separate oral agreement constituting a condition precedent to attaching any obligation under any such contract grant or disposition of property may be proved. Illustrations (i) and (j) explain this proviso.

4)       Subsequent oral agreement residing or modifying the contract, grant, or disposition:-

Proviso (4) The existence of any distinct, subsequent oral agreement to rescind or modify any such contract, grant, or disposition of property; maybe 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.

5)       Usage or custom:-

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 an incident would not be repugnant or inconsistent with the express terms of the contract.

6)       Facts showing a relation of the document’s language to existing facts.

Proviso (6).- Any fact that shows how the language of a document relates to existing facts may be proved.

7) Exception of (S.91):-

Exceptions 1 and 2 and explanation 3 of S. 91 are exceptions to this S. 92.

B)      Exceptions to the rule laid down under sections 91 and 92:-

Ss. 93 to 100 lays down the rule for interpreting ambiguous documents. The ambiguity may be latent or patent. The document may be ambiguous either because its language is not clear or though the language is clear, its application to facts creates doubts. When the document (instrument) is prima facie ambiguous or is, on its face, unintelligible, the ambiguity is patent, whereas ‘latent ambiguity’ arises where the language used in the document is very clear. Still, ambiguity is detected when it is applied to the existing facts.

Ss. 93 and 94 deal with patent ambiguity, whereas Ss. 95 to 98 deal with latent ambiguity.

1.       Exclusion of evidence to explain or amend ambiguous document (S.93):-

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

Illustrations

(a) A agrees, in writing, to sell a horse to B for “Rs.1,000 or Rs.1,500”.

     Evidence cannot be given to show which price was to be given.

(b) A deed contains blanks. Evidence of facts showing how they were meant to be filled cannot be given.

The principle is that where the language of a document is apparently or on the face of it is defective, oral evidence cannot be given of the facts that would show its meaning or remove its defect.

Under this section, extrinsic evidence is prohibited from filling in the blanks in a deed. However, the Court is not prevented from filling in the blanks and omissions by resorting to the ordinary rules of construction of deeds.

2.       Exclusion of evidence against application of document to existing facts. (S.94).

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

Illustration

A sells to B, by deed, “my estate at Rampur containing 100 bighas.” A has an estate at Rampur containing 100 bighas. Evidence may not be given that the estate meant to be sold was situated at a different place and size.

Where there is neither patent nor latent ambiguity in the language used in the document, and it applies accurately to the existing facts, no evidence can be given to assign different meanings. When the language used in the document is crystal clear and indicates the intention of the parties in clear terms, no oral evidence shall be allowed to show that any of the parties understood it differently.

3.       Evidence as to document unmeaning in reference to existing facts (S.95):-

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

Illustration

A sells to B, by deed, “my house in Calcutta”.

A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed.

These facts may be proved to show that the deed related to the house at Howrah.

According to this section, when the language used in the document is very plain in itself but becomes unnecessary when applied to the existing facts, extrinsic evidence is admissible to show that the words in the document were used in a peculiar sense rather than in the ordinary sense.

4.       Evidence as to the application of language which can apply to one of several persons (S.96):-

When the facts are such that the language used might have been meant to apply to anyone 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 which of those persons or things it was intended to apply.

Illustrations

(a) A agrees to sell to B for Rs.1,000 “my white horse”. A has two white horses. Evidence may be given of facts which show which of them was meant.

(b) A agrees to accompany B to Haidarabad. Evidence may be given of facts showing whether Haidarabad in the Dekkhan or Haidarabad in Sind was meant.

Under this section, when the language used in the document is capable of being applied to more than one thing or person, though it could not have been intended to apply to more than one thing or person, extrinsic evidence is admissible to show to which of the things or persons it was meant to apply.

5.       Evidence as to the application of language to one of two sets of facts to neither of which the whole correctly applies (S.97):-

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 which of the two it was meant to apply.

Illustration

A agrees to sell “my land “to B at X in the occupation of Y”. A has landed at X but not in the occupation of Y, and he has landed in the occupation of Y, but it is not at X. Evidence may be given of facts showing which he meant to sell.

6.       Evidence as to the meaning of illegible characters, etc. (S.98):- ­

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

Illustration

A, a sculptor, agrees to sell “all my mods” to B. A has both models and modelling tools. Evidence may be given to show which he meant to sell.

Where the words are used in an unfamiliar and peculiar sense, being of illegible or not commonly intelligible characters of foreign, obsolete, technical, local, and provincial expressions and of abbreviations, evidence may be allowed to show their meaning.

7.       Saying of provisions of Indian Succession relating to wills (S.100):-

Nothing in this chapter contained shall be taken to affect any of the provisions of the Indian Succession Act[42] as to the construction of wills.

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[1] तोंडी व कागदोपत्री पुरावा [मौखिक और दस्तावेजी साक्ष्य ]

[2] विधाने [कथन ]

[3] S.119. A dumb witnesses.-A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. The evidence so given shall be deemed to be oral evidence.

[4] [1885]

[5] तोंडी पुरावा हा प्रत्यक्ष स्वतः अनुभवलेल्या घटनेबद्दल असला पाहिजे [मौखिक साक्ष्य वास्तविक अनुभव के बारे में ही होना चाहिए ]

[6] साक्षीदाराने स्वतः डोळे, कान, जिव्हा, त्वचा, नाक या पंचेंद्रीयांनी घटना अनुभवली असली पाहिजे [साक्षी ने स्वयं इस घटना को आँख, कान, जिह्वा, त्वचा, नाक की पाँचों इन्द्रियों से अनुभव किया होगा। ]

[7] घटनाचक्राषी संबंधित घटना, वाक्य, विचार इ. [घटनाचक्र से संबंधित प्रसंग, वाक्य, विचार आदि। ]

[8] स्विकार [मानना ]

[9]  गुन्हयाची कबुली [अपराध बोध ]

[10] प्राथमिक/मुळ दस्तऐवजच षाबितीसाठी पुरावा (चांगल्या पुराव्याचा नियम) [अस्तित्व के प्रमाण के रूप में स्वयं प्राथमिक/मूल दस्तावेज़ (अच्छे साक्ष्य का नियम) ]

[11]  दुय्यम पुरावा [द्वितीयक साक्ष्य ]

[12]   प्रमाणित प्रत [  प्रमाणित प्रति ]

[13]  मुळ दस्तऐवजाचा यांत्रिक पध्दतीने केलेल्या प्रती, की ज्या मुळ दस्तऐवजाबद्दल असतात व त्या प्रति मुळ प्रतिप्रमाणे असल्याची खात्री केली जाते. [मूल दस्तावेज़ की यांत्रिक प्रतियाँ, जो मूल दस्तावेज़ के बारे में हैं और मूल की सत्य प्रति होना सुनिश्चित किया जाता है। ]

[14] मुळ दस्तऐवजावरुन व बरोबर असल्याची खात्री करुन केलेल्या प्रति [मूल दस्तावेज़ से कॉपी करें और सुनिश्चित करें कि यह सही है ]

[15]मूल दस्तावेज़ से कॉपी करें और सुनिश्चित करें कि यह सही है [  दस्तावेज़ की प्रतिलिपि/कॉपी ]

[16] ज्यावेळी मुळप्रत सामनेवाला पक्षाकडे असते [जब मूल प्रति विरोधी पक्ष के पास हो ]

[17] मुळ दस्तऐवज सादर करण्यासाठी नोटीस [मूल दस्तावेज प्रस्तुत करने की सूचना ]

[18] ज्यावेळी मुळ दस्तऐवजाचे अस्तित्व, त्यामधील अटी व मजकूर विरोधी वजा लेखी स्वरुपात मान्य केला असेल तर [जब मूल दस्तावेज़ का अस्तित्व होता है, तो इसकी शर्तों और सामग्री को लिखित रूप में स्वीकार किया जाता है, जिसमें विरोध नहीं होता है ]

[19] AIR 1998 MP 1

[20] ज्यावेळी मुळ दस्तऐवज हा षासकीय असेल [जब मूल दस्तावेज सरकारी दस्तावेज हो ]

[21] ज्यावेळी मुळ दस्तऐवजात बराच जमाखर्चाचा हिषोब असतो अथवा इतर कागदपत्र [जब मूल दस्तावेज़ में पर्याप्त जमा खाता या अन्य दस्तावेज़ हो ]

[22] दस्तऐवज अंमलात आणण्याचा पुरावा/दस्तऐवजाच्या अंमलबजावणीची षाबिती [स्तावेज़ के निष्पादन का प्रमाण / दस्तावेज़ के निष्पादन की स्थिति]

23  स्वाक्षरी अथवा हस्ताक्षर झाल्याचे सिध्द/षाबित करण्याच्या पध्दती [  हस्ताक्षर या हस्ताक्षर को साबित/सत्यापित करने की विधि ]

24 धंदेवाईक लेख लिहिणारा [  व्यापार लेख लेखक ]

 25 जे दस्तऐवज कायदयाप्रमाणे नोंदणी करते व साक्षीदारांना समक्ष करणे आवष्यक असते अषा दस्तऐवजाची अंमलबजावणी झाल्याचे सिध्द करणे [एक दस्तावेज जो कानून के अनुसार पंजीकृत होता है और यह साबित करने के लिए गवाहों के सामने पेश किया जाना आवश्यक है कि दस्तावेज निष्पादित किया गया है ]

26  मृत्युपत्रातील साक्ष [वसीयतनामा गवाही ]

27 मृत्युपत्र करणारा [वसीयत करनोवाला ]

28  जेव्हा दस्तऐवजासाठी साक्षीदार मिळत नाही तेव्हा [  जब किसी दस्तावेज का साक्षी उपलब्ध न हो ]

 [29] सार्वजनिक/षासकीय दस्तऐवज [सार्वजनिक/सरकारी दस्तावेज ]

30 सार्वजनिक/षासकीय व खाजगी दस्तऐवज [सार्वजनिक/सरकारी और निजी दस्तावेज़ ]

31 सार्वजनिक/षासकीय दस्तऐवज षाबितीचे सिध्द करण्याचे नियम   [सार्वजनिक/सरकारी दस्तावेजों की वैधता के सत्यापन के लिए नियम ]

[32] सार्वजनिक/षासकीय दस्तऐवज षाबितीचे सिध्द करण्याचे नियम [सार्वजनिक/सरकारी दस्तावेजों की वैधता के सत्यापन के लिए नियम ]

33 दस्तऐवज संबंधी गृहिते [दस्तावेजी अनुमान ]

34 ‘गृहिते’ म्हणजे कायदेषिर नियम की ज्यायोगे न्यायालय व न्यायाधिषांनी विषिश्ठ घटना व विषिश्ठ पुरावा मधून विषिश्ठ अनुमान काढणे आवष्यक असते. जोपर्यत विरुध्द पुरावा देवून ते नाषाबित केले जात नाही. [उपधारणा’ का अर्थ एक कानूनी नियम है जिसके द्वारा अदालतों और न्यायाधीशों को विशेष तथ्यों और विशेष साक्ष्य से विशेष निष्कर्ष निकालने की आवश्यकता होती है। जब तक कि इसके विपरीत साक्ष्य देकर इसे नष्ट नहीं कर दिया जाता। ]

[35] [AIR 1954 SC 464]

[36] सही-षिक्क्याच्या खरेपणांच्या पुराव्या षिवाय पुराव्यात दाखल करण्यायोग्य दस्तऐवजा संबंधी गृहित [हस्ताक्षर की वास्तविकता के प्रमाण के बिना साक्ष्य में स्वीकार्य दस्तावेज की उपधारणा ]

[37] S.38 – Relevancy of statements as to any law contained in law books.-When the court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the courts of the such country contained in a book purporting to be a report of such rulings is relevant.

[38] बिनतारी संदेषाविरुध्द पाठविलेल्या संदेषाबद्दल गृहित [भेजे गए संदेशों बनाम वायरलेस संदेशों के बारे में अनुमान ]

[39] [In Shaikh Hussain v. Govardhan Das (1896)]

[40] सर्वोत्कृश्ट पुराव्याचा नियम [सर्वोत्तम साक्ष्य का नियम ]

[41] (c) An estate called “Rampur tea estate” is sold by a deed that contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed cannot be proved.

(d) A enters into a written contract with B to work certain mines on the property of B. upon certain terms. A was induced to do so by a misrepresentation of B’s as to their value. This fact may be proved.

(e) A institutes a suit against B for the specific performance of a contract and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law, entitle him to have the contract reformed.

(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words “Bought of ‘A’ a horse for Rs.’500”. A may prove the verbal warranty.

(h) A hires lodgings of B, and gives 13 a card on which is written-“Rooms, Rs.200 a month”. A may prove a verbal agreement that these terms were to include partial board.

A hires lodgings of B for a year, and a regularly stamped agreement drawn up by an attorney is made between them. It is silent on the subject of board. A may not prove that the board was included in the terms verbally.

(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this.

(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered.

[42] The Indian Succession Act of 1865 mentioned in this section has been replaced by the Indian Succession Act 1929.