International Journal of Pure and Applied Mathematics

Volume 120 No. 5 2018, 1073-1082

ISSN: 1314-3395 (on-line version)
url: http://www.acadpubl.eu/hub/
Special Issue
http://www.acadpubl.eu/hub/

A STUDY ON DOCUMENTARY EVIDENCE IN INDIAN EVIDENCE

ACT
1
S. KALAISELVAN

1
Student, 4th Year ,Ba.Llb,Saveetha School Of Law, Saveetha Institute Of Medical And
Technical Sciences, Saveetha University,Chennai-77,Tamilnadu,India.

2
ROJA.K

2
Asst Professor Of Law,Saveetha School Of Law, Saveetha Institute Of Medical And
Technical Sciences ,Saveetha University, Chennai-77,Tamilnadu,India.

1
[email protected] , 2 [email protected]

ABSTRACT:

Documents means all documents produced before the court of law and for the
inspection of documents produced. Public documents and private documents are the two
main kinds of documents. Primary evidences are more reliable and best evidence consider by
court of law. In the absence of primary evidence, secondary evidence is that which the
witnesses were given on the basis of his own perspective. Hence, that document is written
which is a documentary evidence .Sections 91 and 92 exempt oral evidence by documentary
evidence. Oral proof cannot be substituted in the place of written documents where the
written document exists in evidence of certain transactions of offence referred to in Section
91 as written testimony , more certain and more reliable than oral evidence.

INTRODUCTION:

Documents means all documents produced before the court of law and for the inspection of
documents produced. Public documents and private documents are the two main kinds of
documents. In both procedural laws i.e. civil procedure code and criminal procedure code

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includes the producing of documents for the evidence in their respective provisions. Further
the evidence is divided in to primary and secondary evidence. Documentary evidence is a
part of primary evidence which produced before the court of law in first. In judiciary the
documentary evidence will be preferred and oral evidence is always inferior to the
documentary evidence under some exception. Documentary evidence can be either
circumstantial or direct in nature. It is used to prove the facts of the transaction of an offence.

KEYWORDS: Documents, transaction, evidence, offence, provision

HYPOTHESIS:

Documentary evidence includes written documents cannot be substituted by the oral

evidence which exist in the proof of transaction of offence deals in section 91 of the act as
written testimony is of highly certain more reliable and has higher grade than oral evidence.

RESEARCH QUESTION:

Whether the documentary evidence can be substituted by oral evidence in case there is a lack
of evidence

RESEARCH METHODOLOGY:

In this paper the researcher mainly opted for doctrinal research methodology, and the sources
are collected under through secondary data.

REVIEW OF LITERATURE:

1. Principles of law of evidence by Singh avatar 19 th ed 2011 central law

publications
In this book the author clearly explains that the direct evidence is the evidence directly
about the real point in issue.

2. Law of evidence by lal batuk 4th ed 2005

The author in this book deals documentary evidence deals with evidence produced in the
form of document in order to prove a disputed fact.
3. Law of evidence by arthur best ,wigmore 4 th ed 2014

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Secondary evidence that which can be given in absence of primary evidence where a copy of
document and recollection of witnesses
4. A study on exclusion of oral evidence by documentary evidence by vishal autani
15th sep 2012
Documentary evidence is the best form of evidence were the orginal documents as the
evidence are admissible by the court of law.

CHAPTERIZATION :

EXCLUSION OF ORAL EVIDENCE FROM DOCUMENTARY EVIDENCE

Under section 91 and 92 of The Evidence act of india dealt with exclusion of oral evidence
by the documentary evidence section 91 reads as: In terms of a contract, or of a grant, or of
any other nature 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 nature of property, or of
such matter, except the document itself, or secondary evidence of its contents in cases in
which secondary evidence is admissible under the provisions hereinbefore contained.

Exception 1. – When a public authority is required by law to be appointed in witten, and

when it is showed any person has acted as public officer, he need not be proved by his
writings by which he is appointed

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

The document is the best evidence to prove any fact or related facts. These fact should be
proved either by the primary or secondary evidence of the document. The section prohibit the
proof of the contents of a written document otherwise than by the written itself. Even a third
party, who is seeking to prove a written contract, can prove it only by producing the writing.
In this respect section 91 and 92 addition to each other. They are both based on the “best
evidentiary rule” though they differ in some material particulars also. The Supreme Court
held in Taburi Sahai v. Jhunjhunwala3 that a deed of a adoption of child is not a valid contract
within the meaning of section 91 and therefore , the fact of adoption can be proved by any
evidence apart from the deed.further the principles of exclusion of all other evidence applies

3
AIR 1967 SC106

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only to the terms happens to be mentioned in a contract, the same can be proved by any other
evidence thean by producing the document. Where both the oral evidence and documentary
evidence are admissible non their own merits.there is nothing any special provision in the act
requiring that the documentary evidence should prevail over the oral evidence.Where it is
held that the final position therefore is that is the term of any transfer reduced to writings are
in dispute between a stranger to a document and party to his representatives in Hira devi vs
Official assignee of bombay4

Section 92 of The Indian Evidence act reads as: When the term of any such contract, grant or
other nature of property, or any matter required by law to be substituted to the form of a
document have been proved according to the final section, no evidence of any oral agreement
or statement shall be admitted, as between the parties to any such instrument or their legal
representatives in interest, for the purpose of contradicting, varying adding to, or subtracting
from, its term: Provision 1. Any fact may be proved which would not validate any document,
or which would entitled any person to any decree or order relating thereto, such as fraud,
coercion, illegality, want for due execution, want of capacity in any contracting party, want or
failure of consideration, or a mistake in law or in fact.

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

Proviso (3) – The presence of any unique oral ascension, constituting, a condition point of
reference to the connection of any commitment bound under any such other contract, concede
or nature of property, might be demonstrated.

Proviso (4) – The existence of any oral agreement, constituting, a condition precedent to the
attaching of any obligation under any such contract, grant or nature of property, may be
proved, except in cases in which such contract, grant or nature 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 registering of documents.

4
AIR1958 SC448

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

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

Section 92 of evidence act excluded evidence of any oral agreement or statement in written,
when in the term of a contract, grant or nature of property or any matter required by law to be
in writing have been proved under Section 91 for the purpose of contradicting, varying,
adding to or subtracting from its term of contract. The principle of evidence act lays down
that when the terms of any such document have been proved by the primary or secondary
evidence of the document, no evidence of any oral agreement or statement shall be .In
5
Gangabai vs chhahubai it was held that purpose of oral evidence is admissible to show that
the document executed was never intended to operate. Hittlamani vs Prayya gurulingayya
poojari6 that the consent decree or order did not cover all the dispute between the parties and
also some vagueness remained evidence could be given of such matters section 92 of
evidence act not been attracted.

KINDS AND EXCEPTIONS:

1) Validity of document- The first proviso to section 92 of evidence act dealt that evidence
can be given of any facts in which would not validate the document in question or which
would entitle a party to any decree or order related to the document. In case the validity of a
document may be questioned.

2) Matters on which document is silent– The second proviso states that evidence can be given
of an oral agreement on a matter on which the document is silent. Such evidence is allowed
subject to two conditions; firstly, the oral agreement should be consistent with the terms
stated in the document. Secondly, in allowing oral agreement the court is to have regard of
the degree of formality of the document.

3) condition precedent : the third provision provide that the existence of any separate oral
agreements constituting condition precedent to attachment of any obligations under the
document may be proved if the party is liable under a document has already stated making
5
AIR 1982 SC 20
6
AIR2008 SC241

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payments under it he cannot after setup the defences of an oral condition precedent to
liability.

4) Recession or modification– As per proviso 4, to a document means to set it aside and to

manipulate means to drop some of it as cancelled or to modify some of its terms; such oral
agreement may be proved. subject to one capability expressed in the stipulation itself, in
particular, where the agreement is one is required by law to be in composed, or where it has
been enrolled by the law identifying with enlistment of records, at that point confirmation
can't be given of any oral understanding by which it was concurred either to surrendered the
archive or to adjust its terms.

5) Usages and customs- The proviso(5), therefore , that provides 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 the subject to the conditions that usage or custom of which proof is offered should not
be against the express terms of documents. Usage should not be repugnant to our inconsistent
with the document ,for otherwise it would nullify the document

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

Exception 1-Appointment of a Public Officer: Where the appointment of a public officer is

required by law to be made by writing and the question is whether an appointment was made

if it is shown that a individual person has acted as such authority that will be adequate proof
of the fact of appointment and by the way of written in which he was appointed need not be
proved.

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

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section 93 furnishes with the Exclusion of confirmation to clarify or change uncertain report.
In Keshav Lal v Lal Bhai Tea Mills Ltd7 it was held that if the archive had specified no cost
by any stretch of the imagination, oral proof of the cost would have been permitted under
section 92 as to a matter of the reality on which the report is quiet however not when the
record notices cost of uncertain nature.

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

Section 94 deals with the Exclusion of evidence against application of document of existing
facts. This section applies when the execution of the document has been admitted and no
vitiating fact has been proved against it. In the case of General Court Ent to those facts.

Section 95 dealt the Evidence as to report unmeaning in reference to existing certainties. At

the point when the dialect of a report is plain yet in its application to the current actualities it
is unimportant, proof can be given to indicate how it was expected, yet the two date ended up
being extraordinary, it was held that confirmation could be offered to demonstrate which date
was implied.

section 97 deals with the Evidence as to utilization of correspondence to one of two

accumulation of realities to neither of which the entire accurately applies. The guideline of
the segment is that where the dialect of a report applies to one arrangement of certainties and
halfly to another, yet does not have any significant bearing precisely to either, confirmation
can be given to show to which realities the archive was intended to apply. Section 98 deals
with the Evidence as to meaning of illegible character, etc. This section permits evidence to
be given of the importance of words or signs of unintelligible character or words which are
not usually of clear character, outside words, old words, specialized, nearby and common
articulations, truncations words utilized as a part of an unconventional sense. In Canadian-
General Electric W. v. Fatda Radio Ltd it was held that Oral proof is acceptable to explain
aesthetic words and images utilized as a part of a document

7
1958 AIR 512 , 1959 SCR213

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Section 99 manages who may give proof of understanding differing terms of archive. The
gatherings to a report or their agent in-intrigue can't give proof of a contemporary assignation
fluctuating the terms of the record.

CONCLUSION

Oral evidence has lesser value than documentary evidence. Court is bound to accept the
documentary evidence. But oral evidence may take in consideration. It is also need some
corroboration .In briefly submitted that two types of evidence are given by the parties either
oral and documentary evidence. In court of law the value of documentary evidence is higher
than documentary evidence. Because the law always requires the best evidence oral evidence
is a evidence is a evidence which is confined to the words expression verbal or oral. On
another evidence are of side documentary two types. Primary evidences are more reliable and
best evidence consider by court of law. In the absence of primary evidence, secondary
evidence is that which the witnesses were given on the basis of his own perspective . Where
as primary evidence is the original document which is presented to the court of law for its
inspection. Direct evidence is the best evidence to be prove of fact to be proved. But primary
evidence in certain cases is the best evidence in all cases. There documentary evidence
exclude and exempts the oral evidence and prevails over the oral evidence while submitting
the evidence in as witnesses in court of law .The person giving direct evidence available for
cross examination for testing its veracity.

Hence, that document is written which is a documentary evidence .Sections 91 and 92 exempt
oral evidence by documentary evidence. Oral proof cannot be substituted in the place of
written documents where the written document exists in evidence of certain transactions of
offence referred to in Section 91 as written testimony , more certain and more reliable than
oral evidence.

REFERENCES:

1. Principles of law of evidence by Singh avatar, 19th ed 2011, central law publications.
2. Law of evidence by lal batuk 4th ed 2005

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3. Law of evidence by arthur best ,wigmore 4 th ed 2014

4. Powel on evidence ,20th edition p.109
5. Text book on the law of evidence by M.Monir 8 th edition by universal law publication
company
6. A study on exclusion of oral evidence by documentary evidence by vishal autani 15th
sep 2012
7. Taburi Sahai v. Jhunjhunwala AIR 1967 SC106
8. Hittlamani vs Prayya gurulingayya poojari AIR2008 SC241
9. Hira devi vs official assignee of bombay AIR1958 SC 448
10. Gangabai vs chhahubai AIR1982 SC20
11. Prem thakurvs State of punjab AIR1983 SC61
12. Maghesh vs state of karnataka AIR2010 SC2768
13. Delhi developement authority vs Durga chand kaushik AIR1973 SC2609
14. http://www.lawyersclubindia.com/articles/Oral-Documentary-Evidence-1955.asp
15. https://www.srdlawnotes.com/2017/02/meaning-and-kinds-of-documentary.html
16. https://www.scribd.com/doc/28082675/Documentry-Evidence-evidence-act-Project-
work
17. http://www.shareyouressays.com/knowledge/difference-between-oral-and-
documentary-evidence-explained/119171
18. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2146713
19. https://www.researchgate.net/publication/256034060_A_Study_on_the_Exclusion_of
_Oral_Evidence_by_Documentary_Evidence
20. http://indialegal.blogspot.com/2008/04/exclusion-of-oral-by-documentary.html

21. Dr.Lakshmi T and Rajeshkumar S “In Vitro Evaluation of Anticariogenic Activity of

Acacia Catechu against Selected Microbes”, International Research Journal of
Multidisciplinary Science & Technology, Volume No. 3 , Issue No. 3, P.No 20-25,
March 2018.
22. Trishala A , Lakshmi T and Rajeshkumar S,“ Physicochemical profile of Acacia
catechu bark extract –An In vitro study”, International Research Journal of
Multidisciplinary Science & Technology, Volume No. 3 , Issue No. 4, P.No 26-30,
April 2018

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