CHAPTER VI
PRESUMPTIONS AS TO THE DOCUMENTS
Meaning of Presumption…..
Presumption is an inference of fact drawn from other known or proved facts. It is a rule which treats an unknown fact as proved on proof or admission of certain other facts. It means a rule of law that courts shall draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disapproved.
Kinds of Presumptions…..
There are two kinds of presumptions:
1) May presume: presumptions of fact are permissive in the sense that the court has discretion to draw or not to draw them. They are also rebuttable as their evidentiary value may be negatived by contrary proof. Thus these presumptions afford a provisional proof. That a person found in possession of stolen property soon after the theft is either the thief or has received the goods knowing them to be stolen is a presumption is a presumption of this type.
2) Shall presume: they are always obligatory; and a judge cannot refuse to draw the presumption. Such presumptions are either (1) rebuttable, or (2) irrebuttable. Rebuttable presumptions of law are indicated by the expression ‘shall presume’. They hold good unless and until there is contrary evidence, e.g., the court shall presume the genuineness of every Government publication. (section-84)
Difference between Rebuttable and Irrebuttable Presumption
Rebuttable Presumption
Irrebuttable Presumption
(‘conclusive proof’)
1. It means a presumption which can be overthrown by contrary evidence.
1. It is drawn so conclusively that contrary evidence is not allowed. It is juris et de jure, i.e., incapable of rebuttal.
2. The court regard such facts as proved unless and until it is disproved. The court, here, dispenses with the necessity of formal proof. (section 4)
2. The court shall on proof of one fact regard the other as proved and shall not allow evidence to disprove it.
(section 4)
3. Examples- A person not heard of 7 years is dead, or that a bill of exchange has been given for value.
3. Examples- A child under a certain age is inapplicable of committing any crime (section 82, IPC) section 41and section 113.
This chapter deals with the presumptions about the genuineness of the documents. These presumptions start from S.79 to S. 90 of the act. These are the various presumptions deals with the various documents and as to their genuineness ……….
The first provision as to the genuineness of the documents is section 79 which says about Presumption as to genuineness of certified copies and reads as-:
The Court shall presume to be genuine 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 of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized there to by the Central Government:
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, the official character which he claims in such paper.
When a certified copy of a document is produced before the court as evidence of the original in circumstances in which secondary evidence is admissible the law presumes that the copy is a genuine reproduction of the original. This presumption is raised by section 79. The effect of the presumption is that if anybody alleges that the certified copy is not genuine, the burden of proving that fact lies on him, for the court presumes genuineness.
For this presumption arise, it is necessary that the copy should haven certified by an officer of the Central or State Govt. or by an officer in the State of J&K who is duly authorized by the Central Government. Secondly, the document should be subsequently in the form, if any, prescribed by law and should also purport to be executed in that manner.[87]Sitaram v. Ram Charan, AIR 1995 MP 134
The provision which deals with the Presumption as to documents produced as records of evidence is S. 80 which reads as-:
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 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 is taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.
It is necessary for this presumption to arise that a person should have recorded his evidence before a court of law before any officer authorized by law to take such evidence, or that a person accused of any officer authorized by law to take such evidence, or that a person accused of any crime has recorded his confession in accordance with the law, and a copy of the statement has been signs by the judge, magistrate or other officer before whom the statement was recorded.
Section 81 says about the presumption as to gazettes, newspapers, private Acts of parliament and other documents. And reads as-:
The Court shall presume the genuineness of every document purporting to be the London Gazette, or any official Gazette or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of private Act of Parliament of the United Kingdom printed by the Queen’s 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.
Every document which purports to be a newspaper or journal.[88] B.Singh (Dr.) v. Union of India, AIR 2004 S.C. 1923 newspaper reports do not constitute admissible evidence per se, the petition as public interest litigation did not show any element of public interest.In spite of this presumption, it has been held by the Supreme Court that newspaper reports do not constitute admissible evidence of their truth.[89]State of Rajasthan v. Union of India, (1977) 3 S.C.C. 592.The presumption, of genuineness attached under s.81 to a newspaper reports cannot be treated as a proof of the facts reported therein.[90]Laxmi Raj shetty v. State of T.N., AIR 1988 S.C. 1274A newspaper report cannot be the basis of filing a writ petition. The statement of a fact contained in newspaper is merely a hearsay and therefore inadmissible in evidence.[91]Ramswaroop Bagari v. State of Rajasthan, AIR 2002 Raj. 27.
There is the new amendment added in this section in the form of S.81A. This reads as-:
The court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.[92] Added by the Information Technology Act, 2000.
This section mainly says that the Court has to presume the genuineness of any electronic record purporting to be the official Gazette or purporting to be the electronic record directed by law to be kept in accordance with the form required by the law and is produced from proper custody.
S.82 is the next provision which deal with the presumption as to documents admissible in England without proof of seal or signatures and reads as-:
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 or Ireland, would 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.
Where a document is produced before court of law which according to the laws of England or Ireland would be admissible without proof of seal, or stamp or signature authenticating it, the court shall presume that such seal, stamp or signature is genuine and also that the person signing the document held at the time of signing it, the judicial or official character which he claims.[93] City Bank N.A. New Delhi v. J.K.Jute Mills. AIR 1982 Delhi 487
S.83 deals with the Presumption as to maps or plans made by authority of government. This reads as-:
The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate, but maps or plans made for the purposes of any cause must be proved to be accurate.
Maps or plans purporting to be made with the authority of the central or any State Government are presumed to be accurate. Maps or plans made for the purpose of any cause must, of course, be proved to be accurate.
Where the site plan and inventory prepared on behalf of a former ruler was not produced in its original State, the Supreme Court did not allow any objections to be raised about the matter in the Supreme Court.[94] Adhunik Grah Nirman Sahakari samiti Ltd. V. State of Rajasthan, AIR 1989 S.C 867
S.84 which deals with the presumption as to collections of laws and reports of decisions which reads as-:
The Court shall presume the genuineness of every book purporting to be printed and 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.
This section says that the court presumes the genuineness of every book purported to be printed or published under the authority of the government of any country, and which contains any of the laws of that country. The same presumption is raised in reference to books published by the State which contains report of decided cases.
S.85 deals with the Presumption as to power of attorney which reads as-:
The Court shall presume that every document purporting to be a Power of Attorney, and to have been executed before, authenticated by, notary public, or any Court, judge, Magistrate, Indian Consul, or Vice Consul, or representative of the Central Government, was so executed and authenticated.
The Delhi High Court[95] City Bank N.A. New Delhi v. Juggilal Kamlapat Jute Mills Co., AIR 1982 Delhi 487 acted on this presumption and held that the power of attorney executed on behalf of a bank and attested by notary public created the presumption that the power was validly delegated and the executants were duly authorized to do so. The presumption created by the section applies with equal force in reference to documents authenticated by notaries functioning in other countries.[96] Re K.K. ray (P.) Ltd., AIR 1967 Cal 636 The Supreme Court accepted a document which was authenticated before a notary public of California, U.S.A.[97]Jugraj Singh v. Jaswant Singh, AIR 1976 S.C. 761. Following this; the Allahabad High Court raised the presumption as to a signature authenticated by a notary public in Pakistan.[98]Abdul Jabbar v. A.D.J. Urai, AIR 1980 All. 369
There are three new provisions added in this section i.e.85A., 85B, 85C respectively…….
S.85A deals with the presumption as to electronic agreements which read as-:
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.
S.85B deals with the presumption as to electronic records and digital signature and reads as-
1) In every proceeding involving a secure electronic record, the court shall presume unless 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 secure digital signature, the court shall presume unless the contrary is proved that-:
a) the secure digital signature was affixed by the subscriber with the intention of signing or approving the electronic record;
b) except in the case of a s\secure electronic record or a secure digital signature, nothing in this section shall create any presumption relating to authenticity and integrity of the electronic record or any digital signature.
S.85C deals with the presumption as to Digital Signature Certificates which read as-:
The court shall presume, unless contrary is proved, that the information listed in Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.[99These three sections have been added by the Information technology act, 2000]
S.86 deals with the presumptions as to certified copies of a foreign judicial record which reads as-:
The Court may presume that any document purporting to be certified copy of any judicial record of any country not forming part of India or of Her Majesty’s dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records
An officer who, with respect to any territory or place not forming part of India or Her Majesty’s dominions, is a Political Agent, therefor, as defined in Section 3, Clause (43) of the General Clauses Act, 1897 (10 of 1897) shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.
This section says that the court is given the judicial discretion to presume that certified copies of foreign records are genuine. The first eight presumptions noted above are compulsory presumptions in the sense that the judge is bound to raise the presumption in question. But the presumption as to foreign judicial records and the two presumptions that follow are in the discretion of the court in the sense that the court may or may not draw the presumption.
S.87 deals with the Presumption as to Books, Maps and Charts which reads as -:
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.
Often the books, charts, maps, etc. are produced before the court in proof of a fact-in-issue or a relevant fact and which appears from the book, etc. the Court may presume that any such book, map, and etc. was written by the person whose name is shown as that of the author and was published at the place where it says it was published.
S.88 deals with the Presumption as to Telegraphic Messages which reads as-:
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 massage purports to be sent, but the Court shall not make any presumption as to the person by whom such massage was delivered for transmission.
The court may treat telegraphic message received, as if they were the originals sent, with the exception, that a presumption is not to be made as to the person,[100] Emperor v. Abdul Gani, (1925) 27 Bom. L.R. 1373 by whom they were delivered for transmission and, unless the non-production of the originals is accounted for, secondary evidence of their contents is inadmissible. A telegram is a primary evidence of the fact that the same was delivered to the addressee on the date indicated therein.[101]Abba Astavas v. Suresh, AIR 1984 N.O.C. 131(Del.)
S.88A. deals with the Presumptions as to electronic messages which read as-:
The court may presume that an electronic message forward 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 this 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.[102]Added by the Information Technology Act, 2000.
The section provides that the court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee corresponds with the message as fed into his computer for transmission. The court is not authorized to make any presumption as to the person by whom such matter was sent.
The Explanation to the section talks about the meaning of the terms “addressee” and “originator”. It says that these will have the same meaning as is assigned to them in S. 2(1) (b) and (3) of the Information Technology Act, 2000. Section 2(1) (z) says that an addressee means a person who is intended by the originator to receive the electronic record but does not include any intermediary. Section 2(1)(z) says that an originator means a person who sends, generates, stores or transmits any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person, but does not include an intermediary.
S.89 deals with the Presumption as to due execution etc., of documents not produced which reads as:-
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 a document has been called for but not produced before the court, the court shall presume that the document in question was duly signed, stamped and attested. The presumption is that the document is that the document was in all respects in accordance with the law. The presumption is compulsory and is not in the discretion of the court.
S.90 deals with the Presumption as to documents thirty years old and reads as:-
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 hand writing of any particular person, is in that person’s hand writing, and in the case of 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.
A document which is thirty years old is presumed to be genuine. It is presumed to be genuine in all respects. But the presumption is in the discretion of the court. The court may, but is not bound, to presume that a thirty-year old document is genuine. This presumption. This presumption is provided for inS.90.
The document should be thirty years old. “What is the meaning of its being thirty years old? Parties are not called upon to prove that the deed has been in existence for thirty years before the time of it production, the court is, unless it is impeached, to receive that as proof of the instrument.”[103] Ibid The date on the face of the instrument is prima facie evidence of its age. Where there was an action on a bill of exchange, and no evidence being offered of its age except the date which appeared on its face, that was to be a prima facie evidence of its date.[104] Ibid But evidence can be given of the fact that the date appearing on the instrument is wrong. In such a case thirty years would be computed from the date which is proved to be the date of the execution of the document.[105] Surindra Krishna Roy v. Mirza Mohammad Syad Ali, (1935) 63 I.A 85 Even where a document was not thirty years old when filed in the court but becomes so by the time that it is considered by the court as part of the evidence, the presumption will apply.[106]Ibid
The second condition for the presumption to apply is that the instrument should be produced from proper custody. The meaning of proper custody is given in the explanation. According to the explanation, proper custody means: -
a) The place where the document in question would naturally be;
b) Was under the care of a person with whom it would naturally be;
c) Any custody which is proved to have had legitimate origin; or
d) Under the circumstances of the case the custody from which the instrument is produced is probable.
S.90 nowhere provides that authenticity of the recitals contained in the document is proved, this by itself does not lead to the presumption the recitals contained in the document are also correct. It is open to the parties to raise a plea to the contrary within the limits permitted under sections 91 and 92.[107]Gangamma v. Shivalingaiah, (2005) 9 S.C.C. 359 it has been held that when a thirty years old copy of document is produced, the genuineness of the original cannot be presumed.[108]Sheo Lal v. Chetram, AIR 1971 S.C. 2342
The ruling of the Privy Council and also that in Seethayya v. Subramaniya[109] AIR 1929 P.C 115 were approved by the Supreme Court in Lakhi Baruah v. Padma Kanta Kalita[110]AIR 1996 S.C. 1253. The court held that a certified copy of the registered sale deed was not entitled to the benefit of the presumption.[111] The court overruled the old Khetter Chunder Mookerjee v. Khetter Paul, I.L.R.A gift cum-will document which was produced from proper custody and was also thirty rears old was presumed to be genuine.[112]Kirpal Singh v. Aas kaur, AIR. 1997 P & H 240.
S.90A deals with the presumption as to electronic records five years old and reads as:-
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 authorized 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 be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.
CHAPTER-VII
OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
S.91 deals with the Evidence of terms of contracts, grant and other dispositions of property reduced to form of document which reads as:–
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 herein before 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 had acted as such officer, the writing by which he is appointed need not be proved.
Exception 2 – Wills admitted to probate in India may be proved by the probate.
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.
Where the fact to be proved is embodied in a document, the document is the best evidence of the fact. Such fact should, therefore, be proved by the document itself, that is, by the primary or secondary evidence of the document. According to the High court of Delhi, it did not permit oral evidence of the contents of a partition deed which deed was inadmissible being not registered.[113]Chandrawati v. Lakhmi Chand, AIR 1988 Delhi 13
Once it is shown that the original document is not admissible in evidence because of insufficiency of stamps, secondary evidence by way of oral statement or Xerox copy cannot be allowed. Allowing the party to confront the witnesses with Xerox copy of such evidence was held to be not permissible.[114] Lakshmamma v. Riyaz Khan, AIR 2003 Kant 197 The section forbids the proof of the contents of a writing otherwise than by the writing itself. The section embodies the best evidence rule, thus declaring a doctrine of substantive law. Even a third party, who is seeking to prove a written contract, can prove it only by producing the writing. In this respect S.91 and 92 supplement each other. They are both based on the “best evidence rule” though they differ in some material particulars also.[115]Roop Kumar v. Mohan Thedani, AIR 2003 S.C 2418
The Supreme Court held in Taburi Sahai v. Jhunjhunwala[116] AIR 1967 S.C. 106, that a deed of the adoption of child is not a contract within the meaning of section 91 and, therefore, the fact of adoption can be proved by any evidence apart from the deed. So is true of a will.[117]Yusuf v. Abdul Sattar, AIR 1938 Mad. 616 Further the principle of exclusion of all other evidence applies only to the terms happens to be mentioned in a contract, the same can be proved by any other evidence than by producing the document.[118]Explanation (3) to S. 91.Where both oral as well as documentary evidence are admissible on their own merits and have been admitted, the court may go by the evidence which seems to be more reliable. There is nothing in the act requiring that the documentary evidence should prevail over the oral evidence.[119] Javarsetty v. Nongamma, AIR. 1992 Kant. 160.
S.92 deals with the Exclusion of evidence or oral agreement and reads as-:
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 term:
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 for due execution, want of capacity in any contracting party, want or failure of consideration, or a mistake in fact or law.
Proviso (2) – The existence of any separate oral agreements to matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether; r not his 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 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, 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.
The principle laid 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 admitted, as between the parties to the document or their representatives, for the purposes of contradicting, varying, adding to, or subtracting from the terms of the document. In other words, no oral evidence can be given to qualify the terms of the document and their representatives-in-interest from giving oral evidence concerning the contents of the document. Other parties left free to give such evidence.[120]Vishwa Nathan v. Abdul Wajid, AIR 1986 S.C. 1
The amount which appeared due on a promissory note was not allowed to be contradicted by showing that the promise had only agreed it need not be paid.[121]Leelamma Ambikakumari v. Narayanan, AIR 1992 Ker 115.The court followed Bai Hira Devi v. Official Assignee [122]] AIR 1955 Bom. 122 where it was held that “in the case of a conveyance, it would not be open to either of the parties to the document to prove that, if the consideration was mentioned as rs. 10,000, in fact the consideration was less or more.” It was pointed out by the Madras High Court in its decision in K.S. Narasimhachari v. Indo Comml. Bank[123]AIR 1965 Mad. 147 that the consideration is a term of the contract that while the parties can give evidence under proviso (1) Of the section to show that the document was invalid because there was no consideration or there was failure of consideration or difference in the kind of consideration than that mentioned in the document, it will not be competent for him to prove a variation of the consideration recited in the document.
EXCEPTIONS
1) Validity of document {proviso-1} the first proviso to S.92 says that evidence can be given of any fact which would invalidate the document in question or which would entitle a party to any decree or order relating to the document. The validity of a document may be questioned, for example, on ground that it was obtained by fraud, intimidation or illegality, or that the document was not duly executed, or that one of the parties was incompetent to contract, or that there was a mistake of fact or of law or that there was no consideration or consideration had failed.[124]J. & K. High Court has held that consideration is a condition of validity and not merely a term of the contract so as to attract the bar of section 92, Mustaq Ahmad v. Mohd Shafi, AIR 1983 J.&. K. 44
2) Matters on which document is silent {proviso-2} 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 not be inconsistent with the terms stated in the document. The terms which are expressly stated in the document cannot be allowed to be contracted by any oral agreement. Such evidence is allowed to be proved only on matters on which the document is silent. Secondly, in permitting the evidence of oral agreement the court is to have regard of the degree of formality of the document. If the document is extremely formal, evidence of an oral agreement shall not be allowed even on matters on which the document is silent. A written agreement, for example, is silent as to the time of payment of the price. If there is any oral agreement as to the time of payment of the same may be proved.[125] Illustration (f), S.92
3) Condition precedent {proviso-3} the third proviso provides that the existence of any separate oral agreement constituting condition precedent to the attaching of any obligation under the document may be proved. Where the parties to a promissory note payable on demand, orally agreed that payment would not be demanded for five years, the Supreme Court allowed the oral agreement to be proved.[126]Naraindas v. Papammal, AIR 1967 S.C. 333
If the party liable under a document has already stated making payments under it, he cannot afterwards set up the defence of an oral condition precedent to liability.[127]Sheo Lal v. Bai Sankali, AIR 1931 Bom. 297.In a mortgagor’s suit for rejection it was held that oral evidence could be admitted to show that the document was not intended to be acted upon, that it was a sham document and that it was executed only as a collateral security. Facts, however, showed no evidence to that effect.[128] Ishwar Dass Jain v. Sohan Lal AIR. 2000 S.C. 426
4) Recession or modification {proviso -4} to rescind a document means to set it aside and to modify means to drop some of it as cancelled or to modify some of its terms; such oral agreement may be proved. This is, however, subject to one qualification stated in the proviso itself, namely, where the contract is one is required by law to be in writing, or where it has been registered according to the law relating to registration of documents, then proof cannot be given of any oral agreement by which it was agreed either to resigned the document or to modify its terms.[129] Roshan Lal v. Munshi Ram, AIR. 1981 Punj. 73.
5) Usages and customs {proviso-5} the proviso, therefore, provide that 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 subject to the condition that the usage or custom of which proof is offered should not be against the express terms of the document. The usage should not be repugnant to or inconsistent with the document, for otherwise it would nullify the document. Where goods sold are to be carried by the railways, but the contract does not mention as to who is to arrange for wagons, evidence may be offered that by the custom of the trade seller had to arrange for wagons.[130] Bejoy Krishna v. N.B. Sugar Mills Co., AIR 1949 Cal 490.
6) Relation of language of facts {proviso-6} every contract intended to apply to certain facts. The facts upon which the document is to operate are sometimes set out in the contract itself and sometimes not. Where, for example, a person transfers the whole of his property, but doesn’t describe or state where his property is. In such cases the property to which the document relates can be proved by oral evidence. Similarly, where a written contract says that it is subject to the “usual clause”, the usage prevalent in a particular trade may be proved by oral evidence.[131]There are number of Supreme Court decisions on the point.eg-: Chunchun Jha v. Ibadat Ali, AIR 1954 S.C. 354 Oral evidence is also receivable to throw light upon the nature of a document. The section does not fetter the power of the court to arrive at the true meaning of a document as disclosed by all the relevant surrounding circumstances.[132] Baij Nath v. Vally Md., AIR 1925 P.C. 75
In Abdullah Ahmed v. Animendra Kissen,[133] AIR 1950 S.C. 21 the Supreme Court cited the following passage from Halsbury:
“The evidence of the conduct of the parties in this situation as to how they understood the words to mean can be considered in determining the true effect of the contract made between the parties. Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the facts done under it is a guide to the intention of the parties in such a case and [particularly when acts are done shortly after the date of the instrument.”[134] HAILSHAM edn : Vol. 10 p. 274
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 particular person has acted as such officer that will be sufficient proof of the fact of appointment and the writing by which he was appointed need not be proved.
EXCEPTION -2 Wills
Wills admitted to probate in India may be proved by the probate. The document containing the will need not be produced. “Probate” is copy of the will certified under the seal of the court and, therefore, is a sufficient proof of the content of the will.
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PRESUMPTIONS AS TO THE DOCUMENTS
Meaning of Presumption…..
Presumption is an inference of fact drawn from other known or proved facts. It is a rule which treats an unknown fact as proved on proof or admission of certain other facts. It means a rule of law that courts shall draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disapproved.
Kinds of Presumptions…..
There are two kinds of presumptions:
1) May presume: presumptions of fact are permissive in the sense that the court has discretion to draw or not to draw them. They are also rebuttable as their evidentiary value may be negatived by contrary proof. Thus these presumptions afford a provisional proof. That a person found in possession of stolen property soon after the theft is either the thief or has received the goods knowing them to be stolen is a presumption is a presumption of this type.
2) Shall presume: they are always obligatory; and a judge cannot refuse to draw the presumption. Such presumptions are either (1) rebuttable, or (2) irrebuttable. Rebuttable presumptions of law are indicated by the expression ‘shall presume’. They hold good unless and until there is contrary evidence, e.g., the court shall presume the genuineness of every Government publication. (section-84)
Difference between Rebuttable and Irrebuttable Presumption
Rebuttable Presumption
Irrebuttable Presumption
(‘conclusive proof’)
1. It means a presumption which can be overthrown by contrary evidence.
1. It is drawn so conclusively that contrary evidence is not allowed. It is juris et de jure, i.e., incapable of rebuttal.
2. The court regard such facts as proved unless and until it is disproved. The court, here, dispenses with the necessity of formal proof. (section 4)
2. The court shall on proof of one fact regard the other as proved and shall not allow evidence to disprove it.
(section 4)
3. Examples- A person not heard of 7 years is dead, or that a bill of exchange has been given for value.
3. Examples- A child under a certain age is inapplicable of committing any crime (section 82, IPC) section 41and section 113.
This chapter deals with the presumptions about the genuineness of the documents. These presumptions start from S.79 to S. 90 of the act. These are the various presumptions deals with the various documents and as to their genuineness ……….
The first provision as to the genuineness of the documents is section 79 which says about Presumption as to genuineness of certified copies and reads as-:
The Court shall presume to be genuine 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 of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized there to by the Central Government:
The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper.
When a certified copy of a document is produced before the court as evidence of the original in circumstances in which secondary evidence is admissible the law presumes that the copy is a genuine reproduction of the original. This presumption is raised by section 79. The effect of the presumption is that if anybody alleges that the certified copy is not genuine, the burden of proving that fact lies on him, for the court presumes genuineness.
For this presumption arise, it is necessary that the copy should haven certified by an officer of the Central or State Govt. or by an officer in the State of J&K who is duly authorized by the Central Government. Secondly, the document should be subsequently in the form, if any, prescribed by law and should also purport to be executed in that manner.[87]Sitaram v. Ram Charan, AIR 1995 MP 134
The provision which deals with the Presumption as to documents produced as records of evidence is S. 80 which reads as-:
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 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 is taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.
It is necessary for this presumption to arise that a person should have recorded his evidence before a court of law before any officer authorized by law to take such evidence, or that a person accused of any officer authorized by law to take such evidence, or that a person accused of any crime has recorded his confession in accordance with the law, and a copy of the statement has been signs by the judge, magistrate or other officer before whom the statement was recorded.
Section 81 says about the presumption as to gazettes, newspapers, private Acts of parliament and other documents. And reads as-:
The Court shall presume the genuineness of every document purporting to be the London Gazette, or any official Gazette or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of private Act of Parliament of the United Kingdom printed by the Queen’s 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.
Every document which purports to be a newspaper or journal.[88] B.Singh (Dr.) v. Union of India, AIR 2004 S.C. 1923 newspaper reports do not constitute admissible evidence per se, the petition as public interest litigation did not show any element of public interest.In spite of this presumption, it has been held by the Supreme Court that newspaper reports do not constitute admissible evidence of their truth.[89]State of Rajasthan v. Union of India, (1977) 3 S.C.C. 592.The presumption, of genuineness attached under s.81 to a newspaper reports cannot be treated as a proof of the facts reported therein.[90]Laxmi Raj shetty v. State of T.N., AIR 1988 S.C. 1274A newspaper report cannot be the basis of filing a writ petition. The statement of a fact contained in newspaper is merely a hearsay and therefore inadmissible in evidence.[91]Ramswaroop Bagari v. State of Rajasthan, AIR 2002 Raj. 27.
There is the new amendment added in this section in the form of S.81A. This reads as-:
The court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.[92] Added by the Information Technology Act, 2000.
This section mainly says that the Court has to presume the genuineness of any electronic record purporting to be the official Gazette or purporting to be the electronic record directed by law to be kept in accordance with the form required by the law and is produced from proper custody.
S.82 is the next provision which deal with the presumption as to documents admissible in England without proof of seal or signatures and reads as-:
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 or Ireland, would 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.
Where a document is produced before court of law which according to the laws of England or Ireland would be admissible without proof of seal, or stamp or signature authenticating it, the court shall presume that such seal, stamp or signature is genuine and also that the person signing the document held at the time of signing it, the judicial or official character which he claims.[93] City Bank N.A. New Delhi v. J.K.Jute Mills. AIR 1982 Delhi 487
S.83 deals with the Presumption as to maps or plans made by authority of government. This reads as-:
The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate, but maps or plans made for the purposes of any cause must be proved to be accurate.
Maps or plans purporting to be made with the authority of the central or any State Government are presumed to be accurate. Maps or plans made for the purpose of any cause must, of course, be proved to be accurate.
Where the site plan and inventory prepared on behalf of a former ruler was not produced in its original State, the Supreme Court did not allow any objections to be raised about the matter in the Supreme Court.[94] Adhunik Grah Nirman Sahakari samiti Ltd. V. State of Rajasthan, AIR 1989 S.C 867
S.84 which deals with the presumption as to collections of laws and reports of decisions which reads as-:
The Court shall presume the genuineness of every book purporting to be printed and 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.
This section says that the court presumes the genuineness of every book purported to be printed or published under the authority of the government of any country, and which contains any of the laws of that country. The same presumption is raised in reference to books published by the State which contains report of decided cases.
S.85 deals with the Presumption as to power of attorney which reads as-:
The Court shall presume that every document purporting to be a Power of Attorney, and to have been executed before, authenticated by, notary public, or any Court, judge, Magistrate, Indian Consul, or Vice Consul, or representative of the Central Government, was so executed and authenticated.
The Delhi High Court[95] City Bank N.A. New Delhi v. Juggilal Kamlapat Jute Mills Co., AIR 1982 Delhi 487 acted on this presumption and held that the power of attorney executed on behalf of a bank and attested by notary public created the presumption that the power was validly delegated and the executants were duly authorized to do so. The presumption created by the section applies with equal force in reference to documents authenticated by notaries functioning in other countries.[96] Re K.K. ray (P.) Ltd., AIR 1967 Cal 636 The Supreme Court accepted a document which was authenticated before a notary public of California, U.S.A.[97]Jugraj Singh v. Jaswant Singh, AIR 1976 S.C. 761. Following this; the Allahabad High Court raised the presumption as to a signature authenticated by a notary public in Pakistan.[98]Abdul Jabbar v. A.D.J. Urai, AIR 1980 All. 369
There are three new provisions added in this section i.e.85A., 85B, 85C respectively…….
S.85A deals with the presumption as to electronic agreements which read as-:
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.
S.85B deals with the presumption as to electronic records and digital signature and reads as-
1) In every proceeding involving a secure electronic record, the court shall presume unless 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 secure digital signature, the court shall presume unless the contrary is proved that-:
a) the secure digital signature was affixed by the subscriber with the intention of signing or approving the electronic record;
b) except in the case of a s\secure electronic record or a secure digital signature, nothing in this section shall create any presumption relating to authenticity and integrity of the electronic record or any digital signature.
S.85C deals with the presumption as to Digital Signature Certificates which read as-:
The court shall presume, unless contrary is proved, that the information listed in Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.[99These three sections have been added by the Information technology act, 2000]
S.86 deals with the presumptions as to certified copies of a foreign judicial record which reads as-:
The Court may presume that any document purporting to be certified copy of any judicial record of any country not forming part of India or of Her Majesty’s dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records
An officer who, with respect to any territory or place not forming part of India or Her Majesty’s dominions, is a Political Agent, therefor, as defined in Section 3, Clause (43) of the General Clauses Act, 1897 (10 of 1897) shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.
This section says that the court is given the judicial discretion to presume that certified copies of foreign records are genuine. The first eight presumptions noted above are compulsory presumptions in the sense that the judge is bound to raise the presumption in question. But the presumption as to foreign judicial records and the two presumptions that follow are in the discretion of the court in the sense that the court may or may not draw the presumption.
S.87 deals with the Presumption as to Books, Maps and Charts which reads as -:
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.
Often the books, charts, maps, etc. are produced before the court in proof of a fact-in-issue or a relevant fact and which appears from the book, etc. the Court may presume that any such book, map, and etc. was written by the person whose name is shown as that of the author and was published at the place where it says it was published.
S.88 deals with the Presumption as to Telegraphic Messages which reads as-:
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 massage purports to be sent, but the Court shall not make any presumption as to the person by whom such massage was delivered for transmission.
The court may treat telegraphic message received, as if they were the originals sent, with the exception, that a presumption is not to be made as to the person,[100] Emperor v. Abdul Gani, (1925) 27 Bom. L.R. 1373 by whom they were delivered for transmission and, unless the non-production of the originals is accounted for, secondary evidence of their contents is inadmissible. A telegram is a primary evidence of the fact that the same was delivered to the addressee on the date indicated therein.[101]Abba Astavas v. Suresh, AIR 1984 N.O.C. 131(Del.)
S.88A. deals with the Presumptions as to electronic messages which read as-:
The court may presume that an electronic message forward 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 this 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.[102]Added by the Information Technology Act, 2000.
The section provides that the court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee corresponds with the message as fed into his computer for transmission. The court is not authorized to make any presumption as to the person by whom such matter was sent.
The Explanation to the section talks about the meaning of the terms “addressee” and “originator”. It says that these will have the same meaning as is assigned to them in S. 2(1) (b) and (3) of the Information Technology Act, 2000. Section 2(1) (z) says that an addressee means a person who is intended by the originator to receive the electronic record but does not include any intermediary. Section 2(1)(z) says that an originator means a person who sends, generates, stores or transmits any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person, but does not include an intermediary.
S.89 deals with the Presumption as to due execution etc., of documents not produced which reads as:-
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 a document has been called for but not produced before the court, the court shall presume that the document in question was duly signed, stamped and attested. The presumption is that the document is that the document was in all respects in accordance with the law. The presumption is compulsory and is not in the discretion of the court.
S.90 deals with the Presumption as to documents thirty years old and reads as:-
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 hand writing of any particular person, is in that person’s hand writing, and in the case of 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.
A document which is thirty years old is presumed to be genuine. It is presumed to be genuine in all respects. But the presumption is in the discretion of the court. The court may, but is not bound, to presume that a thirty-year old document is genuine. This presumption. This presumption is provided for inS.90.
The document should be thirty years old. “What is the meaning of its being thirty years old? Parties are not called upon to prove that the deed has been in existence for thirty years before the time of it production, the court is, unless it is impeached, to receive that as proof of the instrument.”[103] Ibid The date on the face of the instrument is prima facie evidence of its age. Where there was an action on a bill of exchange, and no evidence being offered of its age except the date which appeared on its face, that was to be a prima facie evidence of its date.[104] Ibid But evidence can be given of the fact that the date appearing on the instrument is wrong. In such a case thirty years would be computed from the date which is proved to be the date of the execution of the document.[105] Surindra Krishna Roy v. Mirza Mohammad Syad Ali, (1935) 63 I.A 85 Even where a document was not thirty years old when filed in the court but becomes so by the time that it is considered by the court as part of the evidence, the presumption will apply.[106]Ibid
The second condition for the presumption to apply is that the instrument should be produced from proper custody. The meaning of proper custody is given in the explanation. According to the explanation, proper custody means: -
a) The place where the document in question would naturally be;
b) Was under the care of a person with whom it would naturally be;
c) Any custody which is proved to have had legitimate origin; or
d) Under the circumstances of the case the custody from which the instrument is produced is probable.
S.90 nowhere provides that authenticity of the recitals contained in the document is proved, this by itself does not lead to the presumption the recitals contained in the document are also correct. It is open to the parties to raise a plea to the contrary within the limits permitted under sections 91 and 92.[107]Gangamma v. Shivalingaiah, (2005) 9 S.C.C. 359 it has been held that when a thirty years old copy of document is produced, the genuineness of the original cannot be presumed.[108]Sheo Lal v. Chetram, AIR 1971 S.C. 2342
The ruling of the Privy Council and also that in Seethayya v. Subramaniya[109] AIR 1929 P.C 115 were approved by the Supreme Court in Lakhi Baruah v. Padma Kanta Kalita[110]AIR 1996 S.C. 1253. The court held that a certified copy of the registered sale deed was not entitled to the benefit of the presumption.[111] The court overruled the old Khetter Chunder Mookerjee v. Khetter Paul, I.L.R.A gift cum-will document which was produced from proper custody and was also thirty rears old was presumed to be genuine.[112]Kirpal Singh v. Aas kaur, AIR. 1997 P & H 240.
S.90A deals with the presumption as to electronic records five years old and reads as:-
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 authorized 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 be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.
CHAPTER-VII
OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
S.91 deals with the Evidence of terms of contracts, grant and other dispositions of property reduced to form of document which reads as:–
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 herein before 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 had acted as such officer, the writing by which he is appointed need not be proved.
Exception 2 – Wills admitted to probate in India may be proved by the probate.
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.
Where the fact to be proved is embodied in a document, the document is the best evidence of the fact. Such fact should, therefore, be proved by the document itself, that is, by the primary or secondary evidence of the document. According to the High court of Delhi, it did not permit oral evidence of the contents of a partition deed which deed was inadmissible being not registered.[113]Chandrawati v. Lakhmi Chand, AIR 1988 Delhi 13
Once it is shown that the original document is not admissible in evidence because of insufficiency of stamps, secondary evidence by way of oral statement or Xerox copy cannot be allowed. Allowing the party to confront the witnesses with Xerox copy of such evidence was held to be not permissible.[114] Lakshmamma v. Riyaz Khan, AIR 2003 Kant 197 The section forbids the proof of the contents of a writing otherwise than by the writing itself. The section embodies the best evidence rule, thus declaring a doctrine of substantive law. Even a third party, who is seeking to prove a written contract, can prove it only by producing the writing. In this respect S.91 and 92 supplement each other. They are both based on the “best evidence rule” though they differ in some material particulars also.[115]Roop Kumar v. Mohan Thedani, AIR 2003 S.C 2418
The Supreme Court held in Taburi Sahai v. Jhunjhunwala[116] AIR 1967 S.C. 106, that a deed of the adoption of child is not a contract within the meaning of section 91 and, therefore, the fact of adoption can be proved by any evidence apart from the deed. So is true of a will.[117]Yusuf v. Abdul Sattar, AIR 1938 Mad. 616 Further the principle of exclusion of all other evidence applies only to the terms happens to be mentioned in a contract, the same can be proved by any other evidence than by producing the document.[118]Explanation (3) to S. 91.Where both oral as well as documentary evidence are admissible on their own merits and have been admitted, the court may go by the evidence which seems to be more reliable. There is nothing in the act requiring that the documentary evidence should prevail over the oral evidence.[119] Javarsetty v. Nongamma, AIR. 1992 Kant. 160.
S.92 deals with the Exclusion of evidence or oral agreement and reads as-:
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 term:
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 for due execution, want of capacity in any contracting party, want or failure of consideration, or a mistake in fact or law.
Proviso (2) – The existence of any separate oral agreements to matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether; r not his 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 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, 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.
The principle laid 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 admitted, as between the parties to the document or their representatives, for the purposes of contradicting, varying, adding to, or subtracting from the terms of the document. In other words, no oral evidence can be given to qualify the terms of the document and their representatives-in-interest from giving oral evidence concerning the contents of the document. Other parties left free to give such evidence.[120]Vishwa Nathan v. Abdul Wajid, AIR 1986 S.C. 1
The amount which appeared due on a promissory note was not allowed to be contradicted by showing that the promise had only agreed it need not be paid.[121]Leelamma Ambikakumari v. Narayanan, AIR 1992 Ker 115.The court followed Bai Hira Devi v. Official Assignee [122]] AIR 1955 Bom. 122 where it was held that “in the case of a conveyance, it would not be open to either of the parties to the document to prove that, if the consideration was mentioned as rs. 10,000, in fact the consideration was less or more.” It was pointed out by the Madras High Court in its decision in K.S. Narasimhachari v. Indo Comml. Bank[123]AIR 1965 Mad. 147 that the consideration is a term of the contract that while the parties can give evidence under proviso (1) Of the section to show that the document was invalid because there was no consideration or there was failure of consideration or difference in the kind of consideration than that mentioned in the document, it will not be competent for him to prove a variation of the consideration recited in the document.
EXCEPTIONS
1) Validity of document {proviso-1} the first proviso to S.92 says that evidence can be given of any fact which would invalidate the document in question or which would entitle a party to any decree or order relating to the document. The validity of a document may be questioned, for example, on ground that it was obtained by fraud, intimidation or illegality, or that the document was not duly executed, or that one of the parties was incompetent to contract, or that there was a mistake of fact or of law or that there was no consideration or consideration had failed.[124]J. & K. High Court has held that consideration is a condition of validity and not merely a term of the contract so as to attract the bar of section 92, Mustaq Ahmad v. Mohd Shafi, AIR 1983 J.&. K. 44
2) Matters on which document is silent {proviso-2} 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 not be inconsistent with the terms stated in the document. The terms which are expressly stated in the document cannot be allowed to be contracted by any oral agreement. Such evidence is allowed to be proved only on matters on which the document is silent. Secondly, in permitting the evidence of oral agreement the court is to have regard of the degree of formality of the document. If the document is extremely formal, evidence of an oral agreement shall not be allowed even on matters on which the document is silent. A written agreement, for example, is silent as to the time of payment of the price. If there is any oral agreement as to the time of payment of the same may be proved.[125] Illustration (f), S.92
3) Condition precedent {proviso-3} the third proviso provides that the existence of any separate oral agreement constituting condition precedent to the attaching of any obligation under the document may be proved. Where the parties to a promissory note payable on demand, orally agreed that payment would not be demanded for five years, the Supreme Court allowed the oral agreement to be proved.[126]Naraindas v. Papammal, AIR 1967 S.C. 333
If the party liable under a document has already stated making payments under it, he cannot afterwards set up the defence of an oral condition precedent to liability.[127]Sheo Lal v. Bai Sankali, AIR 1931 Bom. 297.In a mortgagor’s suit for rejection it was held that oral evidence could be admitted to show that the document was not intended to be acted upon, that it was a sham document and that it was executed only as a collateral security. Facts, however, showed no evidence to that effect.[128] Ishwar Dass Jain v. Sohan Lal AIR. 2000 S.C. 426
4) Recession or modification {proviso -4} to rescind a document means to set it aside and to modify means to drop some of it as cancelled or to modify some of its terms; such oral agreement may be proved. This is, however, subject to one qualification stated in the proviso itself, namely, where the contract is one is required by law to be in writing, or where it has been registered according to the law relating to registration of documents, then proof cannot be given of any oral agreement by which it was agreed either to resigned the document or to modify its terms.[129] Roshan Lal v. Munshi Ram, AIR. 1981 Punj. 73.
5) Usages and customs {proviso-5} the proviso, therefore, provide that 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 subject to the condition that the usage or custom of which proof is offered should not be against the express terms of the document. The usage should not be repugnant to or inconsistent with the document, for otherwise it would nullify the document. Where goods sold are to be carried by the railways, but the contract does not mention as to who is to arrange for wagons, evidence may be offered that by the custom of the trade seller had to arrange for wagons.[130] Bejoy Krishna v. N.B. Sugar Mills Co., AIR 1949 Cal 490.
6) Relation of language of facts {proviso-6} every contract intended to apply to certain facts. The facts upon which the document is to operate are sometimes set out in the contract itself and sometimes not. Where, for example, a person transfers the whole of his property, but doesn’t describe or state where his property is. In such cases the property to which the document relates can be proved by oral evidence. Similarly, where a written contract says that it is subject to the “usual clause”, the usage prevalent in a particular trade may be proved by oral evidence.[131]There are number of Supreme Court decisions on the point.eg-: Chunchun Jha v. Ibadat Ali, AIR 1954 S.C. 354 Oral evidence is also receivable to throw light upon the nature of a document. The section does not fetter the power of the court to arrive at the true meaning of a document as disclosed by all the relevant surrounding circumstances.[132] Baij Nath v. Vally Md., AIR 1925 P.C. 75
In Abdullah Ahmed v. Animendra Kissen,[133] AIR 1950 S.C. 21 the Supreme Court cited the following passage from Halsbury:
“The evidence of the conduct of the parties in this situation as to how they understood the words to mean can be considered in determining the true effect of the contract made between the parties. Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the facts done under it is a guide to the intention of the parties in such a case and [particularly when acts are done shortly after the date of the instrument.”[134] HAILSHAM edn : Vol. 10 p. 274
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 particular person has acted as such officer that will be sufficient proof of the fact of appointment and the writing by which he was appointed need not be proved.
EXCEPTION -2 Wills
Wills admitted to probate in India may be proved by the probate. The document containing the will need not be produced. “Probate” is copy of the will certified under the seal of the court and, therefore, is a sufficient proof of the content of the will.
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