Professional Documents
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ORAL EVIDENCE
The facts judicially noticeable and facts admitted
are need not to be proved. Oral and documentary
evidence are not only media of proof. This chapter
deals with the oral evidence only. It enacts two
broad rules regard to oral evidence: firstly, that all
facts except contents of documents may be proved by oral evidence, and secondly, that oral evidence in all
cases must be direct and not hearsay.
The meaning of expression “oral evidence” is given along with the definition of the
term “evidence” in Section 3 of Indian evidence act as-: "Evidence" means and includes -:
(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to
matters of fact under inquiry; such statements are called oral evidence.
(2) [1][All documents including records produced for the inspection of the Court] such documents are
called documentary evidence.
Section 59 of the Indian evidence act reads as-: All facts, except the contents of documents, [or electronic
records,][2]may be proved by oral evidence.
Principle: this section lays down that all facts may be proved by oral evidence, except the contents of a
document. The section is rather loosely worded as it makes an unqualified statement as regards
the exclusion of oral evidence to prove the contents of a document. The true position is that oral
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Difference between ‘Relevancy’ & ‘Admissibility’-: there are following three differences
between the relevancy and Admissibility -:
2) The second including artificial rules which do not profess to define probative value but yet aim at
increasing or safeguarding it, and
3) The third covering all those rules which rest on extrinsic policies irrespective of probative values.
EVIDENTIARY VALUE-: Oral evidence is a much less satisfactory medium of proof than
documentary proof. But justice can never be administered in the most important cases without resorting to
it.[6] In all civilized systems of jurisprudence there is a presumption against perjury. The correct rule is to
judge the oral evidence with reference to the conduct of the parties, and the presumptions and probabilities
legitimately arising in the case.[7]Another test is to see whether the evidence is consistent with the
common experience of mankind, with the usual course of nature and of human conduct, and with well-
known principles of human action.
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FALUS IN UNO FALUS OMNIBUS-: The maxim means false in one particular, false in all. This
principle is a somewhat dangerous maxim. There is always a fringe of embroidery to a story, however true
in the main and so where the falsehood in merely an embroidery, that would not be enough to discredit the
whole of the witness’s evidence; where , on the other hand the falsehood relates to a major or material
point that is enough to discredit the witness.
APPRECIATION-: oral evidence should be approached with caution. The court must shift the
evidence, separate the grain from the chaff and accept what it finds to be true and reject the rest. The
credibility of the witness should be decided on the following important points:
(a) Whether the witness have the means of gaining correct information,
ELECTRONIC RECORDS-:
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S.60 deals with Oral evidence must be direct - 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 seen 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 in which that opinion is held, it must be the evidence of the
person who holds that opinion on those grounds -
Provided that the opinion 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 treatise 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.
PRINCIPLE-: this section enacts the general English rule that hearsay is no evidence. It embodies the
second important rule about oral evidence, viz., that it must in all cases be direct and not hearsay. The
section sets out the scope of the expression ‘direct evidence’. It is true that hearsay evidence is excluded by
this section. However, this is subject to well- recognized exceptions (e.g., sections 17 to 39).
Stephen – “the word ‘hearsay’ is used in various senses. Sometimes it means whatever a person is
heard to say; sometimes it means whatever a person declares on information given by someone else.”
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HEARSAY EVIDENCE AND ITS EXCLUSION-: the term hearsay is ambiguous and misleading as it
is used in more than one scene. Stephen says “sometimes it means whatever a person is heard to say;
sometimes it means whatever a person declared on information given by someone else; sometimes it is
treated as nearly synonymous with irrelevant” , (Stephen’s evidence, introduction, p.4). In its more
generally accepted since the term hearsay is used to indicate that evidence which does not derive its value
from the credit given to the witness himself, but which rests also on the veracity and competence of some
other person. It is thus used in contradiction to ‘direct evidence’. It is derivative evidence.
(c) The opportunities for fraud its admission would open; to which are sometimes added these
grounds, viz.,
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R v. Gibson[16]
The accused person was prosecuted for causing hurt by throwing a stone at prosecutor.
So soon he was hit by the stone a woman who saw a man throwing the stone drew his attention towards a
house and said: “the person who threw the stone went in there.” Very soon thereafter he was caught and
arrested in that house.
EXCEPTIONS TO HEARSAY
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1. Direct evidence is that which the 1. Hearsay evidence is that which has been
witness is giving on the basis of his own derived by other person.
perception
4. The person giving direct evidence is 4. The person giving hearsay evidence is
available for cross examination for not author of original evidence. It is
testing its veracity. derived from original author.
5. The source of direct evidence is the 5. In case of hearsay evidence the person
person who is present in court and giving hearsay evidence is not original
giving evidence. source of evidence given by him.
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CHAPTER-II
DOCUMENTARY EVIDENCE
[18][All documents including records produced for the inspection of the Court] such documents are
called documentary evidence.
"Document"- means any matter expressed or described upon any substance by means of letter,
figures or makes, or by more than one of those means, intended to be used, or which may be
used, for the purpose of recording that matter.
b) What are the presumptions about the various kinds of documents, and
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The Bombay
High Court held that the testimony of the two doctors required corroboration and that the tape
amply corroborated it. The decision was upheld by the Supreme Court.
N.Sri Rama Reddy v. V.V. Giri[23] & Pratap Singh v. State of Punjab[24]
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S.61 – Proof of contents of documents--: The contents of document may be proved either
by primary or secondary evidence. Law of best evidence requires the best evidence must be
given in proof of the facts in issue or the other relevant facts. Primary evidence is the best
evidence. The best evidence rule is to produce the original and secondary evidence is not
admissible unless the original is proved to be lost, etc, as required under section 65. Contents
may be proved, i.e., in other words, there are no degrees of secondary evidence.
3. How far and in what cases the oral evidence is executed by documentary evidence? {91-109}
CHAPTER-III
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PRIMARY EVIDENCE
Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1. - Where a document is executed in several parts, each part is primary evidence of the
document.
Where a document is executed in counterparts, each counterpart being executed by one or some of the
parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2. - Where a number of documents are all made by one uniform process, as in the case of
printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they
are all copies of a common original, they are not primary evidence of the contents of the original.
1. The original document itself produced for the inspection of the court.[29]
2. Where a document is executed in several parts, each part is primary evidence of the document.[30]
3. Where a document is executed in counterparts, each counterpart in primary evidence against the
party signing it.
4. Where a number of documents are all made by one uniform process, for example, by printing,
lithography or photography, each is primary evidence of the contents of the document.[31]
PRICIPLE--: this section defines primary evidence as the document itself produced for the
inspection of the court. Primary evidence is evidence which the law requires to be given first. The
general rule requiring primary evidence to be given of the litigated documents is based on the
best evidence rule. An original document is the first permanent record of a transaction. It is first-
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hand evidence and presumptively the most reliable. Besides, documents are often interlined or
altered. Therefore it is desirable to have the original to see if alterations are part of the document
or are made subsequently.
SECONDARY EVIDENCE
2. Copies made from the original by mechanical processes which in themselves insure the accuracy of
the copy and copies compared with such copies;
4. Counterparts of documents as against the parties who did not execute them;
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5. Oral accounts of the contents of a document given by some person who has himself seen it.
The most remarkable among the types of secondary evidence by the section is the oral or parol
evidence of the contents of a document. Thus, it follows the oral evidence of the contents of a document
can be given. There are two conditions of a relevancy of such evidence. Firstly, party offering oral
evidence must be entitled to give secondary evidence of such document. The circumstances in which
secondary evidence can be given are listed in section 65 should exist so as to enable, the party to give
secondary evidence of a document in question. The second condition is that the oral account of the
contents of a document must be that of a person who has himself seen it. Once these conditions are
satisfied, the party can give oral evidence of the contents of the document even if he has attested copy in
his possession.
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S.64 of the evidence act deals with this and it reads as -: Documents must be proved by primary evidence
except in the cases hereinafter mentioned.
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S. 65 deal with these kinds of cases and reads as-: Secondary evidence may be given of the existence,
condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against
whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of the Court, or of any person legally
bound to produce it,
and when, after the notice mentioned in Section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing
by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents
cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
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(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law
in force in India to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be
examined in Court and the fact to be proved is the general result of the whole collections.
In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has
examined them, and who is skilled in the examination of such documents.
Evidence related to electronic record. A prayer was made for pr producing it by means of video-
conferencing. The court said that there was no bar on examination of a witness through video-
conferencing.[44]
Section 67 deals with the Proof of signature and handwriting of person alleged to have signed or
written document produced - 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 hand writing.
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The party, who produces a document which he alleges is executed, signed or written by a certain
person, has to prove that fact. This section merely requires proof of signature and handwriting of the
person alleged to have signed or written the document produced.[45]
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 in accordance with the provisions of the Indian
Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been
executed is specially denied.
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S.69 deals with the Proof where no attesting witness found any lays down that
“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 hand writing of that person.”
a) It should be proved that the signature of the person executing the document is in his handwriting,
and
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be attested.
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In the case of a will the burden lies upon its propounder to prove its genuineness, the deceased
testator being no longer available to speak to its genuineness. Accordingly when the evidence produced by
him was contradicting his claim and there was also inconsistency in the opinion of the handwriting expert,
the will was held to be not proved.[62]
Section 72 deals with the proof of the document not required by law to be attested. Where no
attestation is necessary the section declares in simple terms that where a document, though not required by
law to be attested, is nevertheless attested, it may be proved as if it was not attested.[63]
S.73 deals with the comparison of signature, writing or seal with others admitted or proved and says
that -: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 s to be proved,
although that signature, writing, or seal has not been produced or proved for any other purpose.
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Rejection by the court of the evidence of a handwriting expert on the ground that
the expert had no qualifications was held to be not proper. Once becomes an expert in this field by training,
experience and constant observation and not by any formal qualification. It is not a developed science and
there are no regular courses of study. The expert here was retired personnel from forensic science
laboratory. The circumstantial evidence supported the expert opinion was also based upon cogent reasons.
[72]
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CHAPTER- IV
c) Of public officers, legislative, judicial and executive, of any part of India or of the
Commonwealth, or of a foreign country.
1. Documents forming the acts or records of the act of the sovereign authority,
namely, the parliament and the legislative assemblies, or of the official bodies and
tribunals, and of public officers, legislative, judicial and executive, of any pert of
India or of the commonwealth, or of a foreign country, are public documents.[73]
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2. Private documents which are registered in the public offices also become public
documents.
“Public records are those records which a government unit is required by law to keep or which it is
necessary to keep in discharge of duties imposed by law.”[77] The court overruled its own earlier
decision[78]and followed the Privy Council decision in Gopal Das v. Thakurji,[79]where their Lordships
held that the d original receipt executed by any individual and registered under the Indian Registration Act
is not “a public record of public document”, within the meaning of S.74(2) As the original gas to be
returned to the party under S.61(2) Of the Registration Act.
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2. Public documents are available for 2. Public documents are kept in custody
inspection to the public in public office of the person to whom it belongs and
during appointed time after payment of is not available for general inspection
fixed fee. to the public.
4. As general rule the public document is 4. As general rule the private document is
proved by secondary evidence. to be proved by original i.e. by
primary evidence.
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CHAPTER-V
Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies,
shall be deemed to have the custody of such documents within the meaning of this section.
Where in a process for acquisition of land, it became necessary to determine the value of land by
the comparable sales method, evidence of registered sales was allowed by producing certificate copies.
Examination of the parties to the agreements was not considered to be necessary.[83]
The provision which deals with the Proof of documents by production of certified copies is section 77 of
the act which reads as-: Such certified copies may be produced in proof of the contents of the public
documents or parts of the public documents of which they purport to be copies.
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A will was executed in the state of Goa with the intervention of Notary Public. The court said that it
became a Public document. It could be proved by production of a certified copy. Such will carried with it a
ring or halo of its authenticity and reliability and it presumed t be true until disapproved.[84]
Next provision deals with the Proof of the other official documents it is provided under S.78. This
reads as:-
(1). Acts, orders or notifications of the General Government in any of its departments, or of the Crown
Representative or of any State Government or any department of any State Government.
By the records of the departments, certified by the heads of those departments respectively, or
By any document purporting to be printed by order of any such Government or as the case may be, of the
Crown Representative;
by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting The
Orient Tavern be printed by order of the Government concerned;
(3) Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any
department of Her Majesty's Government,
By copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer;
(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country -
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By journals published by their authority, or commonly received in that country as such, or by a copy
certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;
By a copy of such proceedings certified by the legal keeper thereof of by a printed book purporting to be
published by the authority of such body,
by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a
notary public, or of an Indian consul or diplomatic agent, that the copy is duly certified by the officer
having the legal custody of the original and upon proof of the character of the document according to the
law of the foreign country.
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CHAPTER VI
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…..
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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)
(‘conclusive proof’)
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2. The court regard such facts as proved 2. The court shall on proof of one fact
unless and until it is disproved. The regard the other as proved and shall
court, here, dispenses with the necessity not allow evidence to disprove it.
of formal proof. (section 4)
(section 4)
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-:
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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.
The provision which deals with the Presumption as to documents produced as records of evidence is S.
80 which reads as-:
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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.
Section 81 says about the presumption as to gazettes, newspapers, private Acts of parliament and other
documents. And reads as-:
There is the new amendment added in this section in the form of S.81A. This reads as-:
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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-:
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]
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.
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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]
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-:
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-:
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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-:
S.86 deals with the presumptions as to certified copies of a foreign judicial record which reads as-:
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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.
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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] 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]
S.88A. deals with the Presumptions as to electronic messages which read as-:
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]
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.
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S.90 deals with the Presumption as to documents thirty years old and reads as:-
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.
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years would be computed from the date which is proved to be the date of the execution of the document.
[105] 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]
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: -
b) Was under the care of a person with whom it would naturally be;
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]it has been held that when a thirty years old copy of document is produced, the genuineness of
the original cannot be presumed.[108]
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.
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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
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S.91 deals with the Evidence of terms of contracts, grant and other dispositions of property reduced to
form of document which reads as:–
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.
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]
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
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permissible.[114] 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]
The Supreme Court held in Taburi Sahai v. Jhunjhunwala[116], 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] 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]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]
S.92 deals with the Exclusion of evidence or oral agreement and reads as-:
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.
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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]
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]The court
followed Bai Hira Devi v. Official Assignee [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] 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
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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]
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]
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]
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]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]
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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]
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]
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 subject to the “usual clause”, the usage prevalent in a
particular trade may be proved by oral evidence.[131] 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]
In Abdullah Ahmed v. Animendra Kissen,[133] 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]
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EXCEPTION -2 Wills
CHAPTER- VIII
AMBIGUOUS DOCUMENTS
A document is ambiguous when either its language does not show the clear sense of the
document or its application to facts create doubts, how far oral evidence can be allowed to clarify the
language or to remove the defect? These sections can be placed in two groups depending upon their type of
defect shown by the document.
2) Latent ambiguity.
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Patent ambiguity deals with S.93 & 94. A patent ambiguity means a defect
which is apparent on the face of the document. The document is apparently defective. Any person reading
the document with ordinary intelligence would at once observe the defect. In such cases the principle is
that oral evidence is not allowed to remove the defect. The reason for the rule is that the document being
clearly or apparently defective, this fact must be or could have been known to the parties and if they did
not care to remove it then it is too late to remove it when a dispute has arisen.
S.93 deals with the Exclusion of evidence to explain or amend ambiguous document and reads as:-
When language used in a document is, on its face, ambiguous of defective, evidence may not be
given of facts which would show its meaning or supply its defect.
S.94 deals with the Exclusion of evidence against application of document of existing facts and reads as
-:
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When language used in a document is plain in itself, and when it applies accurately to
existing facts, evidence may not be given to show that it was not meant to apply to such facts.
This section applies when the execution of the document has been admitted and no vitiating
fact has been proved against it. Where the document in question was a record of the proceeding of the
Board and contained an admission under signature of the parties, it was held that an admission could be
explained by the maker of it and, therefore, oral evidence of explanatory nature was admissible.[138]
Latent defect means a defect which is not apparent on the face of the
record. The document makes a plain reading. There is nothing apparently wrong with its language. But
when an attempt is made to apply it to the facts stated in it, it comes out that it does not accurately apply to
those facts. Thus the defect is not in language used in the document, but in the application of the language
to the facts stated in it, such a hidden defect is known as a latent defect.
S.95 deals with the Evidence as to document unmeaning in reference to existing facts and reads as-:
When language used in a document is plain in it, but is unmeaning in reference to existing facts,
evidence may be given to show that it was used in a peculiar sense.
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S.96 deals with the Evidence as to application of languages which can apply to one only of several
persons and reads as-:
When the facts are such that the language used might have been meant to
apply to any one, and could not have been meant to apply to more than one of several persons or things
evidence may be given of facts which show of those persons or things it was intended to apply to.
Where a promissory note mentioned a date according to the local calendar and also
according to the international calendar, but the two date turned out to be different, it was held that evidence
could be offered to show which date was meant.[139]
S.97 deals with the Evidence as to application of language to one of two sets of facts to neither of
which the whole correctly applies and reads as-:
The principle of the section is that where the language of a document applies to one set of
facts and partly to another, but does not apply accurately to either, evidence can be given to show to which
facts the document was meant to apply.
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1. Patent ambiguity is there where the 1. Latent ambiguity is such where the
language of document is so uncertain language of documents certain and
and effective thus no meaning can be meaningful but the language of
given to the document. document is not applied to the present
circumstances.
4. Patent ambiguity is based on rule that 4. The rule of giving oral evidence in
patent ambiguity makes the document case of latent ambiguity is based on
useless. principle that latent ambiguity does not
make the document useless.
S.98 deals with the Evidence as to meaning of illegible character, etc. and reads as-:
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This section permits evidence to be given of the meaning of words or marks of illegible
character or words which are not commonly of intelligible character, foreign words, obsolete words,
technical, local and provincial expressions, abbreviations words used in a peculiar sense. An artist agrees
to sell “all his models”. Evidence can be given to show whether he, meant to sell all his models or
modeling tools. Oral evidence is admissible for the purpose of explaining artistic words and symbols used
in a document.[140]
S.99 deals with who may give evidence of agreement varying terms of document and reads as-:
Person who is not parties to document or their representatives in interest may give evidence of
any fact tending to show a contemporaneous agreement varying the terms of the document.
S.100 deals with saving of provisions of India Succession Act relating to Wills and reads as-:
Nothing in this Chapter contained shall be taken to affect any of the provisions of the
Succession Act (X of 1965) as to the construction to Wills.
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BIBLIOGRAPHY
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[10] Dwarka Pd. Marwan v. Sudharshan Pd. Chandraj, AIR 1984 Pat 274
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[12] Sakatar Singh v. State of Haryana AIR 2004 S.C 2570, such evidence is not
admissible.
[27] Tex India v. Punjab and Sind Bank, AIR 2003 Bom 444.
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[30] Shiv Kant Pandey v. Ishwari Singh, AIR 1997 Raj 155
[36] LORD ABINGER, C.B. in Doerd Gilbert v. Ross, (1840) 19 L.J. Ex.210
[37] Orential Fire & General Ins, co. Ltd v. Chandrawati, AIR. 1989 P. & H. 300
[42] Andhra Pradesh Stata Civil Corporation Ltd. V. Simhadripuram Cooperative Society,
AIR. 2005 NOC 15 (A.P)
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[52] Ram Ratan Mishra v. Bittan Kaur, AIR 1980 All. 395
[54] Balwant v. Minabai, AIR 1991 M.P .11, Jayanti Gogal v. Pranati Duara, AIR, 2004
Gau.23, attesting witnesses of the will were not available, no evidence was adduced to
prove the signature of any of the attesting witnesses. Requirements of S. 69 not complied
with. Finding that the will was not proved was held to be proper. The court also said that
signature and handwriting of attesting witnesses can be proved in the same manner
which is applicable to other persons.
[56] Abdul Karim v. Salimun, (1899) 27 cal. 190; Raj Man Gal Misir v. Mathura Dubain, (1915) 38 All 1.
[59] Illyas v. Badshah, AIR 1990 M.P. 334. Compliance with the requirements of the section
is not necessary where the execution and attestation are not disputed.
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[66] Bhagirati Sahu v. Akapati Bhaskar Patra, AIR 2001 Ori, 185
[67] Guru Govindu v. Devarapu Venkataramana, (2006) 4 C.C.C. 214 (AP), the lower court
rejected the application because of belated stage. Expert opinion can help the court to
reach a proper conclusion.
[68] Sukhvinder Singh v. state of Punjab, (1994) 5 S.C.C. 152, direction for specimen
signature can be given by the court conducting the trial or holding the inquiry. A specimen
obtained at the court conducting the trial or holding the inquiry. A specimen obtained at
the direction of an executive magistrate concerned with the matter constituted no
evidence.
[71] Ashok Kumar Uttamchand Shah v. Patel Md Asmal Chanchal, AIR 1999 Guj. 108
[73] Octavious Steel Co. v. Endoram Tea Co., AIR 1980 Cal. 83
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[76] Fazal Sheikh v. Abdur Rahman Mia, AIR 1991 Gau 177
[80] Rajasthan State Transport Corporation v. Nand Kishore, AIR 2001 Raj 334
[86] Laxmi Raj Sheety v. State of T.N., AIR 1988 S.C. 1274.
[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.
[90] Laxmi Raj shetty v. State of T.N., AIR 1988 S.C. 1274
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[93] City Bank N.A. New Delhi v. J.K.Jute Mills. AIR 1982 Delhi 487
[94] Adhunik Grah Nirman Sahakari samiti Ltd. V. State of Rajasthan, AIR 1989 S.C 867
[95] City Bank N.A. New Delhi v. Juggilal Kamlapat Jute Mills Co., AIR 1982 Delhi 487
[99] These tree sections have been added by the Information technology act, 2000
[103] Ibid
[104] Ibid
[105] Surindra Krishna Roy v. Mirza Mohammad Syad Ali, (1935) 63 I.A 85
[106] Ibid