LEGAL STUDY ON THE VALUE OF DOCUMENTARY EVIDENCE

Yadanabon University

Legal Study On the Value of Documentary Evidence

A Paper Submitted to the Yadanabon University in Partial Fulfillment of

the Requirements for the Degree of

BACHELOR OF LAWS

Department of Law
LEGAL STUDY ON THE VALUE OF DOCUMENTARY
EVIDENCE

ကျမ်းပြုသူ

This paper is submitted to the board of Examiners in Law,

Yadanabon University for the Degree of Bachelor of Laws.

APPROVED
 Legal Study on the Value of Documentary Evidence

Abstract
Introduction
Chapter – I Nature of Documentary Evidence
1.1 Definition of Documentary Evidence
1.2 Types of Documentary Evidence
1.2.1 Primary Evidence
1.2.2 Secondary Evidence
1.3 Kinds of Document
1.3.1 Private Document
1.3.2 Public Document

Chapter – II Essential Elements of Producing Documentary Evidence

2.1 Proof of Genuineness of Documents
2.2 Attestation
2.3 Registration
2.4 Stamp

Chapter – III Effectiveness of Documentary Evidence

3.1 Comparison between oral and documentary evidence
3.2 Presumptions as to the Truth of Documents
3.3 Exclusion of Oral by Documentary Evidence

Conclusion
Acknowledgement
Reference List
 ABSTRACT
The purpose of this research is to examine how documentary evidence is value and accept in
civil and criminal court cases. The primary objective is to analyze current legal frameworks and court
decision to determine the key factors that influence how documentary evidence is assessed and
weighted by the judicial system. The research methodology employed qualitative method approach.
We will use a comprehensive review of relevant legal statutes, books and case law relevant to
documentary evidence. Key findings show that the value of documentary evidence depends on factors
like the document's authenticity, reliability, and relevance to the case. Courts closely examine
documents when there are doubts about where they came from. In conclusion, this study highlights the
complexity of evaluating documentary evidence in legal cases. While documents can be powerful
evidence, their impact depends on meeting strict legal standards and addressing any doubts about their
credibility and relevance. The research suggest that education and clear guidelines are needed to help
legal professionals manage and present documentary evidence effectively.
 INTRODUCTION

Documents means all documents produced before the court of law and for the
inspection of documents produced. Evidence refers to information, materials, or facts
presented in a legal proceeding to establish or disprove a fact. Evidence is used to
achieve justice in the cases. When the court examines the case to reveal the truth, the
cause of the case is not revealed without evidence. Evidence plays a very important
role in establishing the truth, as a decision cannot be easily made on the basis of false
allegations. The law of evidence protects the rules and legal principles that govern the
proof of factual matters in both criminal and civil proceedings. There are two types of
Evidence. They are Oral Evidence and Documentary Evidence. Oral Evidence refers
to a statement that a person knows by some means, whether directly heard or seen.
Documents are the best evidence of what they contain and must be produced to speak
for themselves. Documentary Evidence is divided into 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 is used to establish the authentic, existence,
or relevance of certain facts or events. It is often employed to support or defense
claims, provide context, or present a comprehensive account of a subject matter.
Documentary evidence is reliable and tangible proof that can be examined by others.
Documentary evidence can take various forms, include letters, contracts, reports,
emails,images, conversations, videos, maps, receipts or tax documents. Whether in a
criminal or civil, documentary evidence plays a crucial role in various fields. Overall,
the Court can solve a problem for truth and justice in accordance with the provisions
of the documentary evidence. We are going to present the research question of how
effective Documentary Evidence is regarding decision-making with objectives.
 Research Background

The basic concept of the Evidence Law is that the best evidence must be
presented, so if you want to present a document, you must present the original of the
documents. How is Documentary Evidence effective in decision making? To achieve
the objectives of this study, a comprehensive review of the relevant legal provisions
related to documentary evidence in the Evidence Act of Myanmar will be conducted.
Additionally, case method of study involving the use of documentary evidence will be
analyzed to provide insights into its practical application. This research will
specifically explore about Documentary Evidence in Evidence Act. Firstly, we will
present nature and types of Documentary Evidence and then we will express essential
element of producing Documentary Evidence because this element shows the quality
of Documentary Evidence in decision making. Afterall, we will examine the
effectiveness of Documentary Evidence in legal proceeding. A comprehensive
understanding of how documentary evidence contributes to the decision-making
process in legal proceedings. Identification of best practices for the collection,
presentation, and evaluation of documentary evidence in legal proceedings.
 Chapter – II

Essential Elements of Producing Documentary Evidence

2.1 Proof of Genuineness of Documents

There is always the question when the document is used in evidence - Is it

genuine? The evidence upon this point is dealt with in Sec 67-73 of the Evidence
Act. The nature of the evidence will depend to a large extent on the nature of the
document.
If it is a letter, it must be shown who wrote it or at any rate who signed it, for a
signature to a document turns the whole document into a statement by the person who
signs it. If it is an agreement it must be shown who executed it.2323
If a document is alleged to be signed or to have been written wholly or in part
by any person, the signature or the handwriting of so much of the document as is
alleged to be in that person’s handwriting must be proved to be in his handwriting.2424

Any existing law requires a signature, or provides for certain consequences if

a document or a record is not signed, that requirement is satisfied in relation to an
electronic record if-

(a) a method is used to identify the person and to indicate that person’s intention in
respect of the information contained in the electronic record; and

(b) the method is used either-

(i) as reliable as appropriate for the purpose for which the electronic record was
generated or communicated, in the light of all the circumstances, including any
relevant agreement; or

(ii) proven in fact to have fulfilled the functions described in sub-section (a), by itself
or together with further evidence.2525

In the case of “U Thar Kyan vs. Daw Kyaing and two others”, it was held
that the definitions given in Section 67 of The Evidence Act are ways and means to
prove that a certain person has written it. In order to do that, it will be possible only
after these documents have been accepted as evidences. With the fact that the Court

2323
Ratanlal and Dhirajlal, Law of Evidence, Twelfth edition, 1953, p-148.
2424
Section-67 of the Evidence Act, 1872.
2525
Secttion-67(A) of the Amendment of the Evidence Act, 2015.
has accepted the documents, they cannot automatically become evidences. Only after
the poof has been conducted according to Section 67 of The Evidence Act, they will
become evidences.2626

Generally, a signature may be in any form which indicates the identity of the
person and his intention to associate himself with the document. But in some cases,
the special enactment relating to the matter requires a special form of execution. 2727

An electronic record is said to be a record recorded on something by any

technology. The electronic record, which is the signature of such a document, is
relevant and genuine and can be used as evidence in court even if person does not
have a signature.2828

If a document is required by law to be attested, it shall not be used as evidence

until one attesting witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject to the process of the Court
and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of

the execution of any document, not being a will, which has been registered unless its
execution by the person by whom it purports to have been executed is specifically
denied. 2929

If no such attesting witness can be found, or if the document purports to have

been executed in the United Kingdom, it must be proved that the attestation of one
attesting witness at least is in his handwriting, and that the signature of the person
executing the document is in the handwriting of that person.3030

An attesting witness if available should be called in evidence, If the attesting

witness is dead or is living out of the jurisdiction of the Court or cannot be found after
diligent search, two things must be proved.

(1) the signature of one attesting witness and

(2) the signature of the executant.3131

2626
1981, M.L.R, p-94.
2727
Dr. Maung Maung, the Law of Evidence by Sir Arthur Eggar, 3rd edition,2014, p-86.
2828
U Thet Htun, the Note of Evidence Act, 2020, p-173.
2929
Section-68 of the Evidence Act, 1872.
3030
Section-69 of the Evidence Act,1872.
3131
U Phoe Thar, Definition of Law of Evidence,8th edition, 2020, p-169.
 The admission of a party to an attested document of its execution by himself
shall be sufficient proof of its execution as against him, though it be a document
required by law to be attested.3232

In the case of Daw Phwar Thet vs U Soe Aung, the contract is valid only if at
least two witnesses sign it. Therefore, it is decided that if a contract is not signed by
the witnesses in accordance with the law, it cannot be a valid documentary evidence
just by admitting that the witness has signed the contract himself.3333
An admission by not contesting the fact in the pleadings or at the hearing is
sufficient, provided that there is no indication that the attestation was improper. But
the waiver of strict proof will not make a document valid if it is by law invalid for
want of attestation or registration.3434
If the attesting witness denies or does not recollect the execution of the
document, its execution may be proved by other evidence.3535

According to this section, if the witness is alive but denies signing the contract
or says he does not remember, he may testify about the signing in any other way. If
only one witness denies the contract, it is not possible to present evidence by other
means. Although there are other witnesses who can be summoned, they will still be
summoned and examined. Only if all the witnesses deny it, they can testify in another
way.3636

An attested document not required by law to be attested may be proved as if it

was unattested.3737

In order to ascertain whether a signature, writing or seal is that of the person

by whom it purports to have been written or made, any signature, writing or seal
admitted or proved to the satisfaction of the Court to have been written or made by
that person may be compared with the one which is to be proved, although that
signature, writing or seal has not been produced or proved for any other purpose. The
Court may direct any person present in Court to write any words or figures for the
purpose of enabling the Court to compare the words or figures so written with any

3232
Section- 70 of the Evidence Act, 1872.
3333
1995, M.L.R, Supreme Court, p-84.
3434
Dr. Maung Maung, the Law of Evidence by Sir Arthur Eggar, 3rd edition, 2014.
3535
Section- 71 of the Evidence Act, 1872.
3636
U Win Swe Oo, Note of Law of Evidence, 2020.
3737
Section- 72 of the Evidence Act, 1872.
words or figures alleged to have been written by such person. This section applies
also, with any necessary modifications, to finger-impressions.3838

-insert case (eng)

2.1.1 Attestation

“Attestation” as defined in Sec-3 of the Transfer of Property Act, in relation to

an instrument, means and shall be deemed always to have meant attested by two or
more witnesses each of whom has seen the executant sign or affix his mark to the
instrument or has seen some other person sign the instrument in the presence and by
the direction of the executant, or has received from the executant a personal
acknowledgment of his signature or mark, or of the signature of such other person,
and each of whom has signed the instrument in the presence of the executant; but it
shall not be necessary that more than one of such witnesses shall have been present at
the same time, and no particular from of attestation shall be necessary.

According to Section 63 of the Succession Act, the will must be signed by at

least two witnesses. According to Section 59 of the Transfer of Property Act, if an
immovable property whose value exceeds the value is mortgaged, or According to
Section 123, if the immovable property, regardless of its value, is voluntarily given, it
must be done by a registered deed and signed by at least two witnesses. Similarly,
approved on (1) 1939, According to the Adoption Act (approved on April 1, 1941), if
a contract of adoption is concluded, at least two witnesses must sign and register it.

The Court held that in spite the fact that the witnesses sign the deed, as there
are no signatures so as to be in line with the definitions in Section 3 of the Transfer of
Property Act. Although the executer himself acknowledges that he himself sign the
deed, his acknowledgement will not be in the scope of the definitions given in Section
70 of The Evidence Act. (U Soe Aung v Daw Khin Hla Hla and two others, 2000
M.L.R pg-73)

-U shwe kyuu eng case another file

2.1.2 Registration

The following documents are determined as the documents which require

compulsory registration under the Sec- 16 of the Registration of Deeds Law:
3838
(a) instruments of gift of immoveable property;

(b) instruments of sale of immoveable property which is valued at one hundred

thousand kyats and upwards, instruments, other than wills which are executed for the
validity of declaration, assignment, limitation, extinction or abolishment of any right,
title or interest to or in such immoveable property, and judgments, decrees or orders
of the court on the ownership related to such instruments;

(c) mortgage instruments and instruments that extinguish the mortgage signed by the
mortgagee and at least two witnesses except a mortgage by deposit of title deeds to
property which is valued at one hundred thousand kyats and upwards;

(d) leases of immoveable property from year to year, or for any term exceeding one
year, or reserving a yearly rent;

(e) instruments by which a whole or part of immoveable property or interest in such

immoveable property is mortgaged or given or assigned in any manner by a company
or association to the trustee;

(f) instruments of kittima adoption; and

(g) other instruments prescribed by the Union Government from time to time.

And also in Sec- 18, all documents presented to Registration of Deeds Offices
for registration shall:

(a) be written in Myanmar language;

(b) be attached notarized translation of Myanmar language if they are not written in
Myanmar Language;

(c) be written completely and signed by the parties; and

(d) be attested with initials or signatures by the parties in the places of alteration,
addition, blank or erasure to or in the documents if a document in which any
alteration, addition, blank or erasure appears.

Under Sec- 47 of the Registration of Deeds Law, all documents which have been duly
registered :

(a) shall come into effect from the date of execution; and
(b) shall take effect against any oral agreement or declaration relating to moveable or
immoveable property where such oral agreement or declaration are contrary to their
terms and conditions;

(c) shall not apply to any property that has been delivered according to oral agreement
or declaration that are contrary to the terms and conditions of the documents although
they take effect on such agreement or declaration under sub-section (b).

According to Sec- 48, if documents required compulsory registration under section 16

are not registered, such documents:

(a) shall have no effect on the transfer or lease of immoveable property;

(b) shall not be official evidence for Kittima adoption;

(c) shall not be official evidence for the property mentioned in the document or for the
power conferred under the document.

If documents mentioned in sub-sections (a), (b), (c), (d) and (e) of section 16 and
sub-sections (a), (b) and (c) of section 17 are registered, commitments and conditions
with respect to property mentioned in those documents shall be valid. (Sec-49)

In the case of Daw Tote Tote and four others v Daw Sein Sein Win (or)
Daw Hla Kyi and three others, instrument of gift of immovable property, it is
apparent that it is a contract given by the law as it is signed by the giver, receiver, and
(3) witnesses, as well as registered.

Section 49 of the Registration Act declares that no document required by s. 17

to be registered shall affect any immovable property comprised therein or confer any
power to adopt or be received as evidence of any transaction affecting such property
of conferring such power unless it has been registered.(Dr mg mg)

Where a document is required by law to be registered but is not duly

registered, it is void for its special purpose. And the transaction is null and void where
registration was essential to its validity and is defective.

2.1.3 Stamp

As stated in Sec-35 of the Myanmar Stamp Act, no instrument chargeable with

duty shall be admitted in evidence for any purpose by any person having by law or
consent of parties authority to receive evidence, or shall be acted upon, registered or
authenticated by any such person or by any public officer, unless such instrument is
duly stamped:

Provided that-

(a) any such instrument not being an instrument chargeable with a duty of one anna or
half an anna only, or a bill of exchange or promissory note, shall, subject to all just
exceptions, be admitted in evidence on payment of the duty with which the same is
chargeable, or, in the case of an instrument insufficiently stamped, of the amount
required to make up such duty, together with a penalty of five rupees, or, when ten
times the amount of the proper duty or deficient portion thereof exceeds five rupees,
of a sum equal to ten times such duty or portion;

(b) where any person from whom a stamped receipt could have been demanded has
given an unstamped receipt and such receipt , if stamped, would be admissible in
evidence against him, then such receipt shall be admitted in evidence against him on
payment of a penalty of one rupee by the person tendering it;

(c) where a contract or agreement of any kind is effected by correspondence

consisting of two or more letters and any one of the letters bears the proper stamp, the
contract or agreement shall be deemed to be duly stamped;

(d) nothing herein contained shall prevent the admission of any instrument in
evidence in any proceeding in a criminal Court, other than a proceeding under
Chapter XII or Chapter XXXVI of the Code of Criminal Procedure;

(e) nothing herein contained shall prevent the admission of any instrument in any
Court when such instrument has been executed by or on behalf of the Government, or
where it bears the certificate of the Collector as provided by section 32 or any other
provision of this Act.

Under Sec- 36 of the Myanmar Stamp Act, where an instrument has been
admitted in evidence, such admission shall not, except as provided in section 61of the
Evidence Act, be called in question at any stage of the same suit or proceeding on the
ground that the instrument has not been duly stamped.

-insert case (U Aung saw stamp case)

 In Chapter 2, we explored the essential elements necessary for producing
documentary evidence, focusing on proof of genuineness, attestation, registration, and
stamping. Each element plays a critical role in ensuring the authenticity and legal
acceptability of documents in various contexts. In summary, the production of
documentary evidence requires proof of genuineness, attestation, registration, and
stamping. These elements work together to ensure that documents are authentic,
credible, and legally recognized, thereby upholding the integrity of legal processes.
 Chapter – III
Effectiveness of Documentary Evidence
3.1 Presumption as to the Truth of Documents
The Court shall presume every document purporting to be a certificate,
certified copy or other document, which is by law declared to be admissible as
evidence of any particular fact and which purports to be duly certified by any officer
in the Union of Myanmar, [or by any officer in any other part of the Union of
Myanmar who is duly authorized thereto by the President of the Union], to be
genuine:
Provided that such document is substantially in the form and purports to be executed
in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports
to be signed or certified held, when he signed it, the official character which he claims
in such paper.(1)(1)
Whenever any document is produced before any Court, purporting to be a
record or memorandum of the evidence, or of any part of the evidence, given by a
witness in a judicial proceeding or before any officer authorized by law to take such
evidence, or to be a statement or confession by any prisoner or accused person, taken
in accordance with law, and purporting to be signed by any Judge or Magistrate, or by
any such officer as aforesaid, the Court shall presume-
that the document is genuine; that any statements as to the circumstances under which
it was taken, purporting to be made by the person signing it, are true, and that such
evidence, statement or confession was duly taken.(Sec-80)
The Court shall presume the genuineness of every document purporting to be
the London Gazette or the Gazette of the Union of Myanmar, or the Government
Gazette of any colony, dependency or possession of the British Government, or to be
a newspaper or journal, or to be a copy of a private Act of [Parliament of the United
Kingdom of Great Britain and Ireland] printed by the [official Printer], and of every
document purporting to be a document directed by any law to be kept by any person,
if such document is kept substantially in the form required by law and is produced
from proper custody.
When any document is produced before any Court, purporting to be a
document which, by the law in force for the time being in England and Ireland, would
(1)(1)
Sec-79 of the Evidence Act,1872
be admissible in proof of any particular in any Court of Justice in England or Ireland,
without proof of the seal or stamp or signature authenticating it, or of the judicial or
official character claimed by the person by whom it purports to be signed, the Court
shall presume that such seal, stamp or signature is genuine, and that the person
signing it held, at the time when he signed it, the judicial or official character which
he claims,
and the document shall be admissible for the same purpose for which it would be
admissible in England or Ireland.
The Court shall presume that maps or plans purporting to be made by the
authority of Government were so made, and are accurate; but maps or plans made for
the purposes of any cause must be proved to be accurate.
The Court shall presume the genuineness of every book purporting to be
printed or published under the authority of the Government of any country, and to
contain any of the laws of that country, and of every book purporting to contain
reports of decisions of the Courts of such country.
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, British Consul or Vice-Consul, or representative of [His
Britannic Majesty or the Union of Myanmar], was so executed and authenticated.
The Court may presume that any document purporting to be a certified copy of
any judicial record of any country not forming part of [His Britannic Majesty’s
dominions or the Union of Myanmar] is genuine and accurate, if the document
purports to be certified in any manner which is certified by any representative of [His
Britannic Majesty or the Union of Myanmar] in or for such country to be the manner
commonly in use in that country for the certification of copies of judicial records.
The Court may presume that any book to which it may refer for information
on matters of public or general interest, and that any published map or chart, the
statements of which are relevant facts and which is produced for its inspection, was
written and published by the person and at the time and place, by whom or at which it
purports to have been written or published.
The Court may presume that a message, forwarded form 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; but the Court shall not make any presumption as to the person by whom such
message was delivered for transmission.
The Court shall presume that every document, called for and not produced
after notice to produce, was attested, stamped and executed in the manner required by
law.
Where any document, purporting or proved to be thirty years old, is produced
from any custody which the Court in the particular case considers proper, the Court
may presume that the signature and every other part of such document, which
purports to be in the handwriting of any particular person, is in that person’s
handwriting, and, in the case of a document executed or attested, that it was duly
executed and attested by the persons by whom it purports to be executed and attested.
Explanation.- Documents are said to be in proper custody if they are in the place in
which, and under the care of the person with whom, they would naturally be; but no
custody is improper if it is proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to render such an origin probable.
This explanation applies also to section 81.
Illustrations.
(a) A has been in possession of 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, a connection of B, produces deeds relating to lands in B’s possession which
were deposited with him by B for safe custody. The custody is proper.
3.2 Comparison between Oral Evidence and Documentary Evidence
59. All facts, except the contents of documents, may be proved by oral
evidence.
Oral evidence must be direct.
60. Oral evidence must, in all cases whatever, be direct; that is to say-
if it refers to a fact which could be seen, it must be the evidence of a witness who says
he saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who
says he heard it ;
if it refers to a fact which could be perceived by any other sense or in any other
manner, it must be the evidence of a witness who says he perceived it by that sense or
in that manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for
sale, and the grounds on which such opinions are held, may be proved by the
production of such treatises if the author is dead or cannot be found, or has become
incapable of giving evidence, or cannot be called as a witness without an amount of
delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material
thing other than a document, the Court may, if it thinks fit, require the production of
such material thing for its inspection.
60A. (1) Notwithstanding anything contained in this Act, a person may, the
permission of the court, give evidence through a video conferencing or live television
link in any proceedings, if-
(a) the witness is below the age of 16 years;
(b) it is expressly agreed between the parties to the proceedings that evidence may be
so given;
(c) the witness is outside the Republic of the Union of Myanmar; or
(d) the court is satisfied that it is expedient in the interests of justice to do so.
(2) In considering whether to give permission for a witness outside the Republic of
the Union of Myanmar to give evidence by live video or live television link under this
section, the court shall have regard to all the circumstances of the case including the
followings:
(a) the reasons for the witness being unable to give evidence in the Republic of the
Union of Myanmar.
(b) the administrative and technical facilities and arrangements made at the place
where the witness is to give his evidence; and
(c) whether any party to the proceedings would be unfairly prejudiced.
(3) The court may, in giving permission under sub-section (1), make an order on all or
any of the following matters:
(a) the persons who may be present at the place where the witness is giving evidence;
(b) the person who may be excluded from the place while the witness is giving
evidence;
(c) the persons in the court who must be able to be heard, or seen and heard, by the
witness and by the persons with the witness;
(d) the person in the court who must not be able to be heard, or seen and heard, by the
witness and by the persons with the witness;
(e) the person in the court who must be able to see and hear the witness and the
persons with the witness;
(f) the stages in the proceedings during which a specified part of the order is to have
effect;
(g) the method of operation of the live video or live television link system including
compliance with the appropriate technical standards as may be determined by the
Chief Justice of the Union; and
(h) any other order the court considers necessary in the interests of justice.
(4) The court may revoke, suspend or vary any order made under this section if-
(a) the live video or live television link system stops working and it would cause
unreasonable delay to wait until a working system becomes available;
(b) it is necessary for the court to do so to comply with its duty to ensure that the
proceedings are conducted fairly to the parties thereto;
(c) it is necessary for the court to do so, so that the witness can identify a person or a
thing or so that the witness can participate in or view a demonstration or an
experiment;
(d) it is necessary for the court to do so because part of the proceedings is being heard
outside a court; or
(e) there has been a material change in the circumstances after the court has made an
order.
(5) The court shall not make an order under this section, or include a particular
provision in such an order, if to do so would be inconsistent with the court’s duty to
ensure that the proceedings are conducted fairly to the parties to the proceedings.
(6) An order made under this section shall not cease to have effect merely because the
person in respect of whom it was made attains the age of 16 years before the
proceedings in which it was made are finally determined.
(7) Evidence given by a witness, whether in the Republic of the Union of Myanmar or
elsewhere, through a video conferencing or live television link by virtue of this
section shall be deemed for the purposes of section 193, 194, 195, 196, 205 and 209
of the Penal Code as having been given in the proceedings in which it is given.
(8) Where a witness gives evidence in accordance with this section, he shall, for the
purpose of this Act, be deemed to be giving evidence in the presence of the court.
3.3 Exclusion of Oral by Documentary Evidence
When the terms of a contract, or of a grant, or of any other disposition of
property, have been reduced to the form of a document, and in all cases in which any
matter is required by law to be reduced to the form of a document, no evidence shall
be given in proof of the terms of such contract, grant or other disposition of property,
or of such matter, except the document itself, or secondary evidence of its contents in
cases in which secondary evidence is admissible under the provisions hereinbefore
contained.
Exception 1.- When a public officer is required by law to be appointed in writing, and
when it is shown that any particular person has acted as such officer, the writing by
which he is appointed need not be proved.
Exception 2.- Wills may be proved by any probate thereof having effect in the Union
of Myanmar.
Explanation 1.- This section applies equally to cases in which the contracts, grants or
dispositions of property referred to are contained in one document and to cases in
which they are contained in more documents than one.
Explanation 2.- Where there are more originals than one, one original only need be
proved.
Explanation 3.- The statement, in any document whatever, of a fact other than the
facts referred to in this section, shall not preclude the admission of oral evidence as to
the same fact.
Illustrations
(a) If a contract be 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 need 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 for
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.
92- When the terms of any such contract, grant or other disposition of
property, or any matter required by law to be reduced to the form of a document, have
been proved according to the last section, no evidence of any oral agreement or
statement shall be admitted, as between the parties to any such instrument or their
representatives in interest, for the purpose of contradicting, varying, adding to, or
subtracting from, its terms:
Proviso (1)- Any fact may be proved which would invalidate any document, or which
would entitle any person to any decree or order relating thereto; such as fraud,
intimidation, illegality, want of due execution, want of capacity in any contracting
party, want or failure of consideration, or mistake in fact or law.
Proviso (2)- The existence of any separate oral agreement as to any 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.
Proviso (3)- The existence of any separate oral agreement, constituting a condition
precedent to the attaching of any obligation under any such contract, grant or
disposition of property, may be proved.
Proviso (4)- The existence of any distinct subsequent oral agreement to rescind or
modify any such contract, grant or disposition of property may be proved, except in
cases in which such contract, grant or disposition of property is by law required to be
in writing, or has been registered according to the law in force for the time being as to
the registration of documents.
Proviso (5)- Any usage or custom by which incidents not expressly mentioned in any
contract are usually annexed to contracts of that description may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent
with, the express terms of the contract.
Proviso (6)- Any fact may be proved which shows in what manner the language of a
document is related to existing facts.
Illustrations.
(a) A policy of insurance is effected on goods “in ships from Yangon to London.” The
goods are shipped in a particular ship which is lost. The fact that particular ship was
orally excepted form the policy cannot be proved.
(b) A agrees absolutely in writing to pay B Ks. 1,000 on the first March, 1940. The
fact that at the same time an oral agreement was made that the money should not be
paid till the thirty-first March cannot be proved.
(c) An estate called “the Kalaw tea estate” is sold by a deed which 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, 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 Ks. 500.” B may prove the verbal warranty.
(h) A hires lodgings of B, and gives a card on which is written “Rooms, Ks. 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 a
lawyer, is made between them. It is silent on the subject of board. A may not prove
that board was included in the term 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.
 Conclusion
-Discussion
Research Question : How is Documentary Evidence effective in decision - making?
This project will tell the value of Documentary Evidence and the effectiveness
of Documentary Evidence in decision making. Documentary Evidence is any
evidence that is, or can be, introduced at a trial in the form of documents, as
distinguished from oral testimony. Documentary evidence is most widely understood
to refer to writings on paper but the term can also apply to any media by which
information can be preserved, such as photographs; a medium that needs a mechanical
device to be viewed, such as a tape recording or film; and a printed form of digital
evidence, such as emails.
The Documentary Evidence is the best evidence when it comes to presenting
Evidence to the Court. The law of evidence protects the rules and legal principles that
govern the proof of factual matters in both criminal and civil proceedings. Evidence is
used to inform decision making to achieve the most effective outcomes. As a general
rule of Evidence, a document shall be proved by primary evidence that is document
itself. No oral evidence of content of documents shall be admissible. But in certain
circumstances the secondary evidence of documents including the oral evidence can
be given. For instance, when original is lost or is in custody or possession of person
against whom it is sought to be proved. The contents of documents may be proved
either by primary or by secondary evidence. If the secondary evidence is submitted
without meeting the conditions mentioned in Sec-65 of the Evidence Act, it may
affect the decision-making and the submission of Documentary Evidence can be
ineffective. The Documentary Evidence can be used to support or refute the
arguments during the decision- making process.
Under Sec-61 of the Evidence Act, the contents of documents may be proved
either by primary or secondary evidence. Dr. Maung Maung said that when a
document is to be used as evidence it must be proved by primary evidence (Sec-64)
that is to say, the document itself must be produced (Sec- 62) and proved to be
genuine. Oral or other documentary evidence of existence, condition, or contents of
the original is secondary evidence which may be used only in certain circumstances.
RATANLAL stated that secondary evidence is evidence which may be given
under certain circumstances in the absence of that better evidence which the law
requires to be given first. Where a copy of a document Is admitted in evidence in the
trial Court without objection, its admissibility cannot be challenged in the Appeal
Court. Because omission to object to its admission implies that it is a true copy and,
therefore, it is not open to the Appeal Court to say whether the copy was properly
compared with the original or not.
In the case, the appellant sued the respondent to remove from the land, one of
the questions is whether the appellant is the legal owner of the land. At the time of
trial, the appellant presented only a copy of the registered transaction contract, even
though he had the original. Under Section 64 of the Evidence Act, the original
contract must be presented. According to Section 65, it is not mentioned for which the
evidence must be submitted through the secondary evidence and for which the
original contract is not submitted. It is stated that the transaction cannot be considered
a legal transaction because the original transaction contract was not presented as
evidence. Maung Maung
Thaung v U Hla Gyi and Daw Aye Kyi 1963, M.L.R (C.C) p-208.
Although it was purchased through a registration contract for a common
association, no evidence was presented under Section - 91 of the Evidence Act or the
secondary evidence allowed under Section - 63 of the Act. He said that the contract
was lost. Only if you can prove that the contract was lost, you have the right to
present evidence under Section 63 of the Evidence Act. Since there is no evidence
presented, it may be decided that there is no right to present evidence under that
section. Even if secondary evidence could be presented according to Section 63, it is
not a valid evidence. According to Section 63 (5) of the Evidence Act, the person who
reads the contract himself must testify orally as long as he remembers what he read.
Daw Saw Shin and two others vs Kwar Kee yar Kook and thirty-six others, 1963
M.L.R, Supreme Court p-765.
There is always the question when the document is used in evidence - Is it
genuine? The evidence upon this point is dealt with in Sec 67-73 of the Evidence
Act. The nature of the evidence will depend to a large extent on the nature of the
document.
If it is a letter, it must be shown who wrote it or at any rate who signed it, for a
signature to a document turns the whole document into a statement by the person who
signs it. If it is an agreement it must be shown who executed it.
“Attestation” as defined in Sec-3 of the Transfer of Property Act, in
relation to an instrument, means and shall be deemed always to have meant attested
by two or more witnesses each of whom has seen the executant sign or affix his mark
to the instrument or has seen some other person sign the instrument in the presence
and by the direction of the executant, or has received from the executant a personal
acknowledgment of his signature or mark, or of the signature of such other person,
and each of whom has signed the instrument in the presence of the executant; but it
shall not be necessary that more than one of such witnesses shall have been present at
the same time, and no particular from of attestation shall be necessary.
According to Section 63 of the Succession Act, the will must be signed by at
least two witnesses. According to Section 59 of the Transfer of Property Act, if
immovable property valued at more than 100,000 Kyats is mortgaged, or According
to Section 123, if a gift is given voluntarily that is immovable regardless of its value,
it must be done with a registered deed, and must be signed by at least two witnesses.
Also, in 1939, Adoption Act [1941, Approved on April 1]. According to the Kittima
adoption contract, at least two witnesses must sign and register it.
Section-48 of the Registration of Deeds Law, if documents required
compulsory registration under section -16 of the Registration of Deeds Law, are not
registered, such documents: (a) shall have no effect on the transfer or lease of
immoveable property; (b) shall not be official evidence for Kittima adoption;(c) shall
not be official evidence for the property mentioned in the document or for the power
conferred under the document.
Under Section- 35 of the Stamp Act, where the document is not duly stamped
it is not admissible for any purpose unless the duty and penalty are paid as required by
the Stamp Act.
 In Daw Phwar Thet vs U Soe Aung (1995, M.L.R, Supreme Court 84), the
contract is valid only if at least two witnesses sign it. Therefore, it is decided that if a
contract is not signed by the witnesses in accordance with the law, it cannot be a valid
documentary evidence just by admitting that the witness has signed the contract
himself.
Under Section-91 of the Evidence Act, when the terms of a contract or a
grant or any other disposition of property, have been reduced to the form of a
document, and in all cases in which any matter is required by low to be reduced to the
form of a document, No evidence shall be given in proof of the terms of such contract
grant or other disposition of property, or of such matter, except the document itself or
secondary evidence of its contents in cases in which secondary evidence is
admissible.
Where any document recording the terms of a contract, or of a grant of any
other disposition of property or any matter which is required by law to be reduced to
the form of a document, has been proved: no evidence of any other agreement or
statement shall be admitted as between the parties to any such instrument or their
representatives in interests for the purpose of contradicting, varying, adding to, or
subtracting from, its terms. (Section-92 of the Evidence Act)
Dr. Maung Maung said that the prohibition is framed with reference only to
"oral" agreements or statements; but for obvious reasons the rule applies also to
written agreement or statements extraneous to the document. The formal nature of the
document implies that its terms are precise and inclusive of every material item,
consequently there is no room for extraneous evidence.
Daw Tin Mya vs U Maung Saw 1997, M.L.R Supreme Court 44 In order to
contradict, vary, add or subtract the terms of the contract, the submission of oral
evidence is prohibited under Secction-92 of the Evidence Act.
Documentary evidence is often seen as more reliable than testimonial evidence
because it is less likely to be affected by memory lapses or personal biases. Multiple
pieces of documentary evidence can support each other, making the overall case
stronger and the facts more convincing. Decisions based on documentary evidence are
easier to justify and explain, which improves transparency and accountability in the
decision-making process. Documentary evidence often meets legal standards for
admissibility and reliability, making it crucial in legal and administrative decisions. In
summary, documentary evidence is effective in decision-making because it provides
concrete, verifiable information that helps establish facts, support defenses, and
justify actions. Its ability to offer detailed and corroborated insights into the parties,
objects, places, and basis of facts make it indispensable in legal decision- making.
A comprehensive understanding of how documentary evidence contributes to
the decision-making process in legal proceedings. Identification of best practices for
the collection, presentation, and evaluation of documentary evidence in legal
proceedings.

-Findings
The key findings indicate that the value of Documentary Evidence is heavily
dependent on factors such as the authenticity, reliability, and relevance of the
documents. Strategies for establishing the chain of custody were also found to be
critical for the admissibility of documentary evidence.

-Recommendation
The study recommends to adhere strictly to court procedures and guidelines
regarding the submission of documentary evidence. And also legal practitioners
should be well-trained and aware of the requirements of the Myanmar Evidence Act
to prevent the unintended submission of incomplete documents.