Law of Evidence

By Nizam Azeez Sait,

MODULE No. 23

EXCLUSION OF ORAL EVIDENCE BY DOCUMENTARY EVIDENCE

This is the 23st Module of the subject ‘Law of Evidence’, covering the topic Exclusion of Oral Evidence by Documentary Evidence, comprising Sections 94 to 103, in Chapter VI in part III of the Bharatiya Sakshya Adhiniyam (Sections 92 to 100 of the Evidence Act).

MODULE INDEX

1. Introduction

2. Section 94 of the Bharatiya Sakshya Adhiniyam Embodies the Best Evidence Rule

3. The Section Applies Only to ‘Terms’ of the Contract and Not to every ‘Facts Stated in the Deed’

a. The Acknowledgment of Receipt of the Sale Consideration in a Deed of Sale is not a Term of the Deed of Sale

b. Recital As to Possession in a Contract Is Not a “Term” Of Contract

4. Exclusion of Evidence of Oral Agreement

4.1. Facts Vitiating the Document may be proved by Oral Evidence
4.2. Separate Oral Agreement Not Inconsistent With The Terms In The Document May Be Proved
4.3. Oral Agreement Constituting a Condition Precedent
4.4. Subsequent Oral Agreement When There is no Law Requiring a Written Document
4.5. Proof of usage or custom
4.6. Proof To Show In What Manner The Language is Used
5. No Bar in Showing that the Document is Sham or Nominal or Never Intended to be Operative
6. Patent Ambiguity and Latent Ambiguity – Permissibility of Extrinsic Evidence
a. Extrinsic Evidence Is Admissible Only in Cases of Latent Ambiguity and Not in Cases Patent Ambiguity

b. Discrepancy in Terms of Grant in the Instrument and the Attached Plan
c. Discrepancy Between Parts of the Document – Admissibility of Extrinsic Evidence –
d. When There Is Discrepancy Generally Boundaries Prevail Over Discerption
e. Doctrine of Falsa Demonstration or Blue Pencil Theory
7. Who may give evidence of agreement varying terms of document – Whether S. 95 applies to Strangers

8. Saving of Provisions of the Indian Succession Act as To Construction of Wills

1. Introduction

We have discussed Oral Evidence in Module 18 and different facets of Documentary Evidence in general in Module 19, Admissibility of Electronic Records in Module 20, Mode of Proof of Execution of a Document Required to be Attested by Law in Module 21, and Presumptions including those relating to documents in Module 22. Now we will deal with ‘Exclusion of Oral Evidence by Documentary Evidence’

Document is defined in section 2(d) of the Bharatiya Sakshya Adhiniyam (Corresponding to Section 3 of the Evidence Act) as under:

“document” means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.

Illustrations.

  • A writing is a document.
  • Words printed, lithographed or photographed are documents.
  • A map or plan is a document.
  • An inscription on a metal plate or stone is a document.
  • A caricature is a document.
  • An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;

In the Evidence Act “Electronic Record” was not specifically included in the definition of ‘Document’ in S.3. Now in the definition of ‘Document’ in the Section 2(d) of the Bharatiya Sakshya Adhiniyam, ‘electronic record’ is specifically included.

Documentary evidence refers to documents produced for the inspection of the Court.

Chapter VI comprising Ss.94 to 103 of the Bharatiya Sakshya Adhiniyam (Sections 91 to 100 of the Evidence Act) is titled ‘Of the exclusion of oral by documentary evidence’.

Operating portion of S 94 (Section 91 of the Evidence Act) reads as follows:

Evidence of terms of contracts, grants and other dispositions of property reduced to form of document. –

When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

The provision provides two exceptions as follows:

Exception 1. —When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.

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

The provision also contains three explanations and corresponding illustrations as under:

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.

Corresponding Illustration (a) reads as follows:  If a contract be contained in several letters, all the letters in which it is contained must be proved.

Explanation 2. —Where there are more originals than one, one original only need be proved.

In this regard, Illustration (c) reads as follows:  If a bill of exchange is drawn in a set of three, one 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.

In this regard, Illustration (d) reads as follows: A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion.

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

Illustrations (a) to (e) read as follows:

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

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

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

(d) A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion.

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

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

Oral evidence is offered of the payment.

The Evidence is admissible.

2. Section 94 of the Bharatiya Sakshya Adhiniyam Embodies the Best Evidence Rule

In Bai Hira Devi v. Official Assignee of Bombay AIR 1958 SC 448, the Supreme Court speaking through, P. B. Gajendragadkar, J, elucidated the principle embodied in the provision in the following words:

“The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original. S.91 (Section 94 of the Bharatiya Sakshya Adhiniyam) is based on what is sometimes described as the “best evidence rule.” This best evidence about the contents of a document is the document itself and it is the production of the document that is required by S.91 (Section 94 of the Bharatiya Sakshya Adhiniyam) in proof of its contents. In a sense, the rule enunciated by S.91 (Section 94 of the Bharatiya Sakshya Adhiniyam) can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act.”

3. The Section Applies Only to ‘Terms’ of the Contract and Not to every ‘Facts Stated in the Deed’

It is a well settled proposition that exclusion of oral evidence under Section 94 of the Bharatiya Sakshya Adhiniyam (Section 91 applies only to the ‘terms’ of a contract, or of a grant, or of any other disposition of property and not to every fact stated in the deed.

For instance, a party to a document or a conveyance or disposition of property will not be entitled to say that the real consideration is more or less than the consideration shown in the contract or in the grant as it is a “term’ of contract. In other words, the price is a term of the contract. But a statement in a deed that the consideration had been received is not a ‘term’ as contemplated in Section 94 of the Bharatiya Sakshya Adhiniyam (S.91 Evidence Act) and therefore contra evidence is not barred.

a. The Acknowledgment of Receipt of the Sale Consideration in a Deed of Sale is not a Term of the Deed of Sale

In this regard, In Md. Taki Khan v. Jang Sing (AIR 1935 Allahabad 529), a full Bench of the Allahabad High Court, considering the scope of S.91 and 92 of the Evidence Act (Sections 94 and 95 of the Bharatiya Sakshya Adhiniyam), observed as follows:

“(1) The amount of sale consideration is a term of a deed of sale. When the terms of a deed of sale have been proved according to S.91, Evidence Act (Section 94 of the Bharatiya Sakshya Adhiniyam), no evidence of any oral agreement or statement shall be admitted as between the parties to the deed of sale or their representatives for the purpose of contradicting, varying, adding to, or subtracting from the amount of sale consideration. (2) The acknowledgment of receipt of the whole or part of the sale consideration in a deed of sale is not a term of the deed of sale and oral evidence may be given to show that the amount acknowledged or any part of its was not received. (3) When one party tenders’ oral evidence to prove that the amount acknowledged or any part of it was not received, this does not give the other party a right to produce evidence of any oral agreement or statement that the amount of sale consideration was less than what is entered in the deed of sale.”

In Suresh C. V v Tobin (Minor) and Another, 2013 (1) KLT 293: ILR 2013 (1) Ker. 30, High Court ofv Kerala speaking through Justice Hema analysed Ss 91 and 92 and observed as follows:

… a close reading of S.91 of Evidence Act (Section 94 of the Bharatiya Sakshya Adhiniyam) shows that admission of oral evidence relating to the statements made in a document is not precluded under all circumstances. It is specifically laid down in Explanation 3 to S.91 (Section 94 of the Bharatiya Sakshya Adhiniyam) that the statement, in any document whatever, of a fact other than the facts referred to in the above section, shall not preclude admission of oral evidence as to the same fact. Therefore, there is no blanket ban to admit oral evidence under S.91 of Evidence Act (Section 94 of the Bharatiya Sakshya Adhiniyam) for proving any facts stated in a document other than those which are referred to in S.91 of Evidence Act (Section 94 of the Bharatiya Sakshya Adhiniyam).

As per S.91 of Evidence Act (Section 94 of the Bharatiya Sakshya Adhiniyam), no evidence shall be given in proof of “terms” of disposition of property or such matter, except the document itself, under certain circumstances. So, whatever restriction is contained in S.91 for adducing oral evidence, it relates only to evidence in respect “terms” of disposition of property etc., or other matters stated in S.91(1). But there is no bar under S.91(1) of Evidence Act (Section 94 of the Bharatiya Sakshya Adhiniyam) to adduce oral evidence to prove the very existence of disposition of property or sale. The restriction applies only to adduce oral evidence is in respect of the “terms” of disposition of property and not disposition of property itself. Only if there is disposition of property, there can be “terms” for such disposition or sale.

S.91 (Section 94 of the Bharatiya Sakshya Adhiniyam) precludes admission of oral evidence for proving only the “terms” disposition of property and hence, there is no bar to adduce oral evidence to prove existence of sale or disposition of property under S.91 of Evidence Act. In cases in which existence of sale itself is under dispute, for want of payment of price, there is absolutely no bar under S.91 of Evidence Act (Section 94 of the Bharatiya Sakshya Adhiniyam) for admission of oral evidence to prove such facts. S.91 does not preclude a party from adducing oral evidence to prove payment of price for sale or existence of sale. The restriction on admission of oral evidence under S.91 of Evidence Act (Section 94 of the Bharatiya Sakshya Adhiniyam) is for proving “terms” of contract, grant or other disposition of property or such matter and not any other fact.

Therefore, in cases in which no sale exists for want of payment of price and consequently, there arises no proof of “terms” of sale as stated in S.91(1), prohibition under S.92 of Evidence Act (Section 95 of the Bharatiya Sakshya Adhiniyam) whatsoever will not apply. If sale of property itself is under dispute for want of payment of price, there is no bar either under S.91 or S.92 of Evidence Act (Sections 94 and 95 of the Bharatiya Sakshya Adhiniyam), to adduce oral evidence to prove such disputed fact. In short, to prove payment of price for the sale or existence of sale under S.54 of Transfer of Property Act, there is no bar for adducing oral evidence either under S.91 or S.92 of Evidence Act (Sections 94 and 95 of the Bharatiya Sakshya Adhiniyam).

(See also Mathew v. Lakshmanan, 1990 (2) KLT 446: ILR 1990 (2) Ker. 302)

b. Recital As to Possession in a Contract Is Not a “Term” Of Contract

It is also well settled that a recital in a deed as to possession is not a ‘term’ of the contract. Hence oral evidence is admissible to show that as against the recital in the document that possession of the property was transferred, there was no such transfer of possession. Such evidence is not excluded by S.91 or 92 of the Act (Sections 94 and 95 of the Bharatiya Sakshya Adhiniyam). (Varky and Another v. Chacko ILR 2013 (1) Ker. 82)

In Kunhammed Kutty v. Avokker and Others ILR 1985 (1) Ker. 573, High Court of Kerala speaking through Justice Sukumaran observed:

“The recitals in a document referring to a fact, therefore, stand on a footing entirely different from a term of sale. Thus, statements in a conveyance regarding the location of the property or the date of the execution of the deed, have been construed as only recitals of a fact, in respect of which proof is admissible to establish a mistake about the same. The admission made by a donor in a deed of gift about the possession of the donor, and the donee having been put in possession, is not irrebutable or conclusive on the question of delivery of possession, though the admission would be binding on the parties in the absence of independent proof to the contrary (see Johara Bibi v. Subera Bibi and others, AIR 1964 Mad. 373)”

4. Exclusion of Evidence of Oral Agreement

Sections 95 of the Bharatiya Sakshya Adhiniyam (Section 92 of the Evidence Act) reads as follows:

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

(In this regard Illustrations (a) to (c) reads as follows:

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

(b) A agrees absolutely in writing to pay B Rs. 1,000 on the first March 1873. The fact that, at the same time an oral agreement was made that the money should not be paid till the thirty-first March cannot be proved.

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

Provisos to the Section read as under:

Provided that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law:

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

Provided also that 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:

Provided also that the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:

Provided also that 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 also that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:

Provided also that any fact may be proved which shows in what manner the language of a document is related to existing facts.

Illustrations to the Section reads as under:

(a) A policy of insurance is effected on goods “in ships from Kolkata to Visakhapatnam”. The goods are shipped in a particular ship which is lost. The fact that particular ship was orally excepted from the policy, cannot be proved.

(b) A agrees absolutely in writing to pay B one thousand rupees on the 1st March, 2023. The fact that, at the same time, an oral agreement was made that the money should not be paid till the 31st March, 2023, cannot be proved.

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

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

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

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

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words—”Bought of A a horse for thirty thousand rupees”. B may prove the verbal warranty.

(h) A hires lodgings of B, and gives B a card on which is written—”Rooms, ten thousand rupees a month”. A may prove a verbal agreement that these terms were to include partial board. A hires lodging of B for a year, and a regularly stamped agreement, drawn up by an advocate, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally.

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

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

Sections 91 and 92 Supplements Each other

In Bai Hira Devi v. Official Assignee of Bombay AIR 1958 SC 448, the Supreme Court speaking through, P. B. Gajendragadkar J, held that Sections 91 and 92 of the Evidence Act (Sections 94 and 95 of the Bharatiya Sakshya Adhiniyam) supplement each other. With respect to the interplay between the two provisions the Court observed:

“S.92 (Section95 of the Bharatiya Sakshya Adhiniyam) excludes the evidence of oral agreements and it applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under S.91(Section 94 of the Bharatiya Sakshya Adhiniyam); in other words, it is after the document has been produced to prove its terms under S.91 (Section 94 of the Bharatiya Sakshya Adhiniyam)that the provisions of S.92(Section 95 of the Bharatiya Sakshya Adhiniyam) come into operation for the purpose of excluding evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. The application of this rule is limited to cases as between parties to the instrument or their representatives in interest. It would be noticed that S.91 and 92 (Sections 94 and 95 of the Bharatiya Sakshya Adhiniyam)in effect supplement each other. S.91 would be frustrated without the aid of S.92. Since S.92 (Sections 95 of the Bharatiya Sakshya Adhiniyam) excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved under S.91, it may be said that it makes the proof of the document conclusive of its contents. Like S.91, S.92 also can be said to be based on the best evidence rule. The two sections, however, differ in some material particulars. S.91 (Sections 94 of the Bharatiya Sakshya Adhiniyam) lays down the rule of universal application and is not confined to the executant or executants of the documents. S.92 (Section 95 of the Bharatiya Sakshya Adhiniyam), on the other hand, applies only between the parties to the instrument or their representatives in interest. There is no doubt that S.92 (Section 95 of the Bharatiya Sakshya Adhiniyam) does not apply to strangers who are not bound or affected by the terms of the document. Persons other than those who are parties to the document are not precluded from giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the document. It is only where a question arises about the effect of the document as between the parties or their representatives in interest that the rule enunciated by S.92 (Section 95 of the Bharatiya Sakshya Adhiniyam) about the exclusion of oral agreement can be invoked.”

“As we have already observed, S.91 and 92 (Sections 94 and 95 of the Bharatiya Sakshya Adhiniyam) really supplement each other. It is because S.91 by itself would not have excluded evidence of oral agreements which may tend to vary the terms of the document that S.92 has been enacted; ….. What S.91 prohibits is the admission of oral evidence to prove the contents of the document. In the present case, the terms of the document are proved by the production of the document itself. Whether or not the said terms could be varied by proof of an oral agreement is a matter which is not covered by S.91 at all. That is the subject matter of S.92 and so, if S.92 (Section 95 of the Bharatiya Sakshya Adhiniyam) does not apply, there is no reason to exclude evidence about an oral agreement solely on the ground that if believed the said evidence may vary the terms of the transaction

S.92 of Evidence Act (Section 95 of the Bharatiya Sakshya Adhiniyam) lays down that when terms of disposition of property have been proved according to S.91 of Evidence Act (Section 94 of the Bharatiya Sakshya Adhiniyam), no evidence of any oral statement shall be admitted, as between the parties to any such instrument for the purpose of contradicting, varying, adding to, or subtracting from, its terms. Therefore, S.92 (Section 95 of the Bharatiya Sakshya Adhiniyam) has no independent existence but it applies only to cases to which S.91 (Section 94 of the Bharatiya Sakshya Adhiniyam) applies. S.92 (Section 95 of the Bharatiya Sakshya Adhiniyam) will apply only to cases to which S.91 (Section 94 of the Bharatiya Sakshya Adhiniyam) applies and “terms” have been proved as stated in S.91 of Evidence Act (Section 94  of the Bharatiya Sakshya Adhiniyam). (See Suresh C. V v Tobin (Minor) and Another, 2013 (1) KLT 293: ILR 2013 (1) Ker. 30).

There are 7 provisos to this section providing exceptions to the above rule. We shall now deal them one by one.

a. Facts Vitiating the Document may be proved by Oral Evidence

Proviso (1) specifically provides that –

Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. 

Following are some of the provisions in the Contract Act rendering agreements void or voidable:

As per S. 19 of the contract Act:

“When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.”

As per S. 20 of the contract Act:

“Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement the agreement is void.”

As per S.25 of the contract Act agreement without consideration is void.

As per S. 23 of the Contract Act “every agreement of which consideration or object is unlawful is void.”

As per S. 11 of the Contract Act “Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”

(Section 65 of the Bharatiya Sakshya Adhiniyam) (Section 67 of the Evidence Act) relating to proof of signature or handwriting is also significant in this context. Section 67 reads as follows:

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.

When validity of a document is impeached on any legal ground there is no bar in adducing evidence to substantiate such invalidity. In this regard illustrations (d) and (e) annexed to the provision reads as under:

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

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

In Janakiraman v. State, 2006 (1) SCC 697: AIR 2006 SC 1106, the Supreme Court, referring to S.92 of Evidence Act, held that “the bar is to oral evidence to disprove the terms of a contract, and not to disprove the contract itself.”

b. Separate Oral Agreement Not Inconsistent With The Terms In The Document May Be Proved

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

Corresponding Illustrations (f) to (h) reads as follows:

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

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words—”Bought of A a horse for thirty thousand rupees”. B may prove the verbal warranty.

(h) A hires lodgings of B, and gives B a card on which is written—”Rooms, ten thousand rupees a month”. A may prove a verbal agreement that these terms were to include partial board. A hires lodging of B for a year, and a regularly stamped agreement, drawn up by an advocate, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally.

c. Oral Agreement Constituting a Condition Precedent

Proviso (3) provides that–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.

Corresponding illustrations read as follows:

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

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

In Rowland v. Administrator General of Burma, AIR 1938 PC. 198, the Privy Council held that there was no objection to prove a collateral agreement suspending the coming into force of the contract.

In Narandas Morardas Galiwala v. S.P.A.M Papammal  AIR 1967 SC 333  the Supreme Court while interpreting the proviso observed:

“where the promissory note is, by its express terms, payable on demand, that is at once, the obligation under the note attaches immediately. A collateral oral agreement not to make demand until a certain specified condition is fulfilled has the intention and effect of suspending the coming into force of that obligation, which is the contract contained in the promissory note. Such an oral agreement constitutes a condition precedent to the attaching of the obligation and is within the terms of Proviso 3 of S.92 of the Evidence Act (Section 95 of the Bharatiya Sakshya Adhiniyam). On the facts of that case the Judicial Committee held that by terms of the oral agreement no liability under the note could arise until the happening of an event and that being so, the case fell within the 3rd proviso to S.92 of the Evidence Act (Section 95 of the Bharatiya Sakshya Adhiniyam).

d. Subsequent Oral Agreement When There is no Law Requiring a Written Document

Proviso (4) provides that —The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

It is true that S.92 of the Evidence Act (Section 95 of the Bharatiya Sakshya Adhiniyam)places an interdict on the admissibility of parole evidence in variance or in contradiction of the terms of a document in writing. But, unlike S.91(Section 94 of the Bharatiya Sakshya Adhiniyam), S.92 (Section 95 of the Bharatiya Sakshya Adhiniyam) deals only with those matters which the law requires to be reduced to the form of a document, and which are contracts, grants or other disposition of property. When there is no law requiring a written document, the Section has no application. The Section will be complete only if it is read along with the provisos. Proof of the existence of any distinct subsequent oral agreement to rescind or modify the contract, grant or disposition of property is prohibited under Proviso (4) only in cases where the contract, grant or disposition is required by law to be in writing or has been registered according to the law in force for the time being as to the registration of contracts. In other cases, existence of a distinct subsequent oral agreement to rescind or modify the contract can be proved. (Thiruvenkidam v. Quilon Pencil Factory 1990 (2) KLT 327)

In, Kadavannoor Illath Subramanian Nambudiri v. KalluVeettil Present Karanavan Madhavan Nair and Others AIR 1971 Ker. 333 (T. C. Raghavan, J.), the Court held that, no evidence will be allowed to prove a distinct subsequent oral agreement to rescind, vary or modify the terms of a registered lease deed. The Court observed:

Proviso (4) contemplates three situations: (1) where a transaction has been reduced into writing though the law does not require it to be in writing, when evidence of any distinct subsequent oral agreement modifying or rescinding the transaction is admissible; (2) where a matter has been reduced into writing since the law requires it to be in writing, when no evidence can be given of any subsequent oral agreement rescinding or modifying the transaction; and (3) where the document has been registered whether or not registration is compulsory under the law. when also no evidence can be allowed to prove a subsequent oral agreement to rescind or modify the transaction.

e. Proof of usage or custom

Provisos (5) and (6) provide that —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.

Usually in cases of commercial contracts market customs or usages generally accepted in particular trade would apply even when not specifically expressed in such contracts. These customs and usages are matters of common knowledge of people engaged in such trades. Oral evidence is admissible to prove such custom.

Rate of interest on a hundi is usually a matter of usage. Where goods are sold and to be carried by railway and when the contract is silent as to who is to arrange for the railway wagon, it was held that oral evidence is admissible as to trade usage that it is the seller’s responsibility (See Bejay Krishna v N. B Sugar mills Co, AIR 1949 Cal 490).

f. Proof To Show In What Manner The Language is Used

Proviso (7) reads as –

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

In Raj kumar Rajindra Singh v. State of H.P and others AIR 1990 SC 1833 the Supreme Court held that:

“if the language employed is ambiguous and admits of a variety of meanings, it is settled law that the 6th proviso (7 th proviso to Section 95 of the Bharatiya Sakshya Adhiniyam) to the section can be invoked which permits tendering of extrinsic evidence as to acts, conduct and surrounding circumstances to enable the Court to ascertain the real intention of the parties. In such a case such oral evidence may guide the Court in unravelling the true intention of the parties. The object of admissibility of such evidence in such circumstances under the 6th proviso is to assist the Court to get to the real intention of the parties and thereby overcome the difficulty caused by the ambiguity. In such a case the subsequent conduct of the parties furnishes evidence to clear the blurred area and to ascertain the true intention of the author of the document.”

In Abdulla Ahmed v. Animendra Kissen, (AIR 1950 SC 15 at p. 21), the Supreme Court observed:

“The evidence of 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 acts 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 instrument

The Privy Council in Ma Thaung v. Ma Than (1924 PC 88) speaking through Ameer Ali, J., aptly observed:

The conduct of the parties to a contract reduced into writing may not vary or alter it, but their conduct may help to explain or elucidate a contract open to different meanings”.

5. No Bar in Showing that the Document is Sham or Nominal or Never Intended to be Operative

The Privy Council in Thyagaraja v. Vedathanni (AIR 1936 Privy Council 70) held that:

“Oral evidence is admissible to show that a document executed by a person was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence about some other matter”.

The correct law in this regard was reitrated by the Supreme Court in Gangabai v. Chhabubai (AIR 1982 SC 20) as follows:

“The bar imposed by sub-s. (1) of S.92 (Section 95 of the Bharatiya Sakshya Adhiniyam) applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose, oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.”

Rules of Interpretation of Language of the Document with the help of extrinsic evidence when permissible and when not permissible are contained in the subsequent sections in the chapter from Sections 96 to 101 (Sections 93 to 98 of the Evidence Act).

6. Patent Ambiguity and Latent Ambiguity – Permissibility of Extrinsic Evidence

Sections 96 to 102 of the Bharatiya Sakshya Adhiniyam (Sections 93 to 98 of the Evidence Act), which deals with patent ambiguity and latent ambiguity read as under:

Sections 96 (Section 93 Evidence Act): Exclusion of evidence to explain or amend ambiguous document. —

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

Illustrations.

(a) A agrees, in writing, to sell a horse to B for “one lakh rupees or one lakh fifty thousand rupees”. Evidence cannot be given to show which price was to be given.

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

Section 97 (Section 94 of the Evidence Act): Exclusion of evidence against application of document to existing facts.-

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.

 Illustration

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

Section 98 (Section 95 of the Evidence Act): Evidence as to document unmeaning in reference to existing facts.-

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

Illustration

A sells to B, by deed, “my house in Kolkata”. A had no house in Kolkata, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house at Howrah.

Section 99 (Section 96 of the Evidence Act): Evidence as to application of language which can apply to one only of several persons.–

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 which of those persons or things it was intended to apply to.

Illustrations

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

(b) A agrees to accompany B to Ramgarh. Evidence may be given of facts showing whether Ramgarh in Rajasthan or Ramgarh in Uttarakhand was meant.

Section 100 (Section 97 of the Evidence Act): Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies.-

When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.

Illustration:

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

Section 101 of the Bharatiya Sakshya Adhiniyam (Section 98 of the Evidence Act): Evidence as to meaning of illegible characters, etc.-

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

Illustration

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

a. Extrinsic Evidence Is Admissible Only in Cases of Latent Ambiguity and Not in Cases Patent Ambiguity

Extrinsic evidence is admissible only to clarify latent ambiguity and not patent ambiguity. Sections 96 and 97 of the Bharatiya Sakshya Adhiniyam (Sections 93 and 94 of the Evidence Act) relates to patent ambiguity and Sections 98 to 101 of the Bharatiya Sakshya Adhiniyam (sections 95 to 98 of the Evidence Act) relate to latent ambiguity.

The Supreme Court in Chunchun Jha v. Ebadat Ali, AIR 1954 SC 345 in para 6 held as hereunder:

“Where a document has to be construed, the intention must be gathered in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended.”

Therefore, it is not permissible to adduce extrinsic evidence so as to gather the intention of the parties to the document, when the language is plain. However, it is permissible to look into the surrounding circumstances to determine what was the intention of the parties, when there is latent ambiguity.

In Venkata Subba Rao v. Krishna – murthy, AIR 1958 AP 447 a Division Bench of the Andhra Pradesh High Court held as under :

“The cardinal principle in construing the terms of wills and other instruments is that clear and unambiguous dispositive words should be given their full effect and should not be controlled or qualified by general expression of intention. The Court is not concerned with what the parties intended but with the meaning of the words used and if the language is clear and consistent it should receive its literal construction unless there is something in it to suggest a departure from it.”

Kashiram S/o Phattuji Rathore v. Mitthulal S/o Shivcharan Chamar, AIR 2013 MP 119, Madhya Pradesh High Court, observed:

I have already held hereinabove that the document of agreement of sale (Ext. P / 1) is uncertain and void. The first plaintiff in para 5 of his cross – examination has given certain description of the property of defendant but said description is not mentioned in the document of agreement of sale (Ext. P / 1) and if that would be position S.93 of the Evidence Act would be applicable in the present case which speaks about exclusion of evidence to explain or amend unambiguous document. According to this provision when the language used in the document is on its face is ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its meaning. The language of the document of agreement of sale Ext. P / 1 is ambiguous and therefore in evidence if plaintiff is saying by describing some other property of defendant, his evidence cannot to be accepted.

In Pradeep Kumar v. Mahaveer Pershad and Others, AIR 2003 AP 107, Andhra Pradesh High Court explained Sections 93 to 98 of the Evidence Act (Sections 96 to 101 of the Bharatiya Sakshya Adhiniyam) and analysed when Extrinsic evidence is admissible for construction of a document. The Court observed:

It is apposite here to consider S.93 to 98 of the Indian Evidence Act (Sections 96 to 101 of the Bharatiya Sakshya Adhiniyam). They deal with the rules as to interpretation or as is also called, construction of documents with the aid of extrinsic evidence. Of them, S.93 to 97 (Sections 96 to 100 of the Bharatiya Sakshya Adhiniyam) are germane for consideration here. Coming within the realm of Chapter VI dealing with the exclusion of oral by documentary evidence, while, S. 93 (Section 96 of the Bharatiya Sakshya Adhiniyam) excludes the evidence which would show the meaning of any document or which would supply its defects in the document when the language used in the document is on its face ambiguous or defective. S.94 (Section 97 of the Bharatiya Sakshya Adhiniyam) says that when the language used in the document is plain in itself and applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. However, while S. 95 (Section 98 of the Bharatiya Sakshya Adhiniyam) says that when the language used in the document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense; S. 96 (Section 99 of the Bharatiya Sakshya Adhiniyam)  reads that the language used in the transaction might have been meant to apply to any one of several persons or things, evidence may be given of facts which shows which of those persons or things it was intended to apply; and S.97 (Section 100 of the Bharatiya Sakshya Adhiniyam) reads that when the language used applies to partly one set of existing facts and partly to another set of existing facts but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply. A perusal of these provisions makes it obvious that S.93 and S.94 (Sections 96 and 97 of the Bharatiya Sakshya Adhiniyam) deal with patent ambiguity and S.95, S.96 and S.97 (Sections 99, 99 and 100 of the Bharatiya Sakshya Adhiniyam) deal with latent ambiguity. In case of patent ambiguity, no extrinsic evidence is permissible and in case of latent ambiguity extrinsic evidence may be given.

The Court after further referring to various case laws summed up the scope and ambit of Sections 93 to 98 of the Evidence Act (Sections 96 to 101 of the Bharatiya Sakshya Adhiniyam) as under:

From the above discussion what emerges is that

(1) where the language used is on its face ambiguous or defective so as to render the meaning unintelligible or where the language though intelligible creates an obvious uncertainty of the meaning, extrinsic evidence is wholly inadmissible because it is a patent ambiguity;

(2) where the language used is quite plain and intelligible but some difficulty arises in applying them to existing facts, for example, when a description is partly correct and partly incorrect, parole evidence is admissible to identify the subject – matter;

(3) where the language used is such that part of a description applies to one subject – matter and part to another, but the whole does not apply correctly to either, parole evidence is admissible;

(4) where the language used is plain and intelligible and applies equally to two or more persons or two or more things and it is necessary to ascertain to which person or thing the words were intended to apply, parole evidence is admissible;

Categories (2), (3) and (4) pertain to latent ambiguity.

(5) in construing the document, the intention must be gathered from the document itself. However, if there is ambiguity in the language used in the document, it is permissible to look to surrounding circumstances to gather the intention, such as user or possession and enjoyment.

b. Discrepancy in Terms of Grant in the Instrument and the Attached Plan

The Oudh High Court in, Abdul Ghani v. Ashiq Husain, AIR 1922 Oudh 162 held thus :

“Where, in a grant of land there is a repugnancy between the terms of the grant and any plan or diagram, the general rule is that the former will prevail. But where the plan or the boundary is a part and parcel of the description itself, the general rule ceases to apply.”

c. Discrepancy Between Parts of the Document – Admissibility of Extrinsic Evidence – Doctrine of Falsa Demonstratio Or Blue Pencil Theory

It is further held in the above referred case ‘Abdul Ghani v Ashiq Hussain’ at page 164 thus:

“Another general rule, is that, “where in a grant the description of the parcels is made up of more than one part and one part is true and the other false, then if the part which is true describes the subject with sufficient accuracy, the untrue part will be rejected as a falsa demonstratio and will not vitiate the grant.”

That was a case where both the parties to the litigation derived their respective interests in the properties in the suit from one Khurshedi Khanam who executed a sale deed in favour of one Fida Hussain in Ex. B.1 from whom the plaintiff purchased the properties. The whole of the property was delineated in green and pink colours in Ex. B.1. It was recited inter alia in the documents thus: “two pucca one storied houses together with land as per boundaries given below, including the room with shop are owned and possessed by the executant, the same two houses are hereby sold to Fida Hussain.” At the foot of the deed, the specification of the boundaries of the first large house and of the second small house were given. Extrinsic evidence consisting of plan prepared by Amin and his two reports was sought to be given at the trial. That evidence was accepted by the trial Court for the purpose of elucidating what was comprised within the limits fixed by the boundaries specified in the deed. On that question of fact, it was found by the Oudh High Court that there had been a manifest discrepancy arising between the parcels as described in the body of the deed and portion defined by the boundaries at the foot of the deed and, therefore, it was a case where the language by which the property intended to be conveyed had been described in the deed itself and that there is an ambiguity in the deed in respect of the description of the property covered is perfectly clear. In the absence of the expression as per boundaries given below, the description of the property given in the document is considered, it included a pucca one storied house including kamara with the shop but the boundaries portion included only to a portion of the same house and if both are read together do not apply correctly either to the whole house or a portion of it. The High Court was of the view that it was a case of latent ambiguity. At page 164 it was held thus:

“Patens is that which appeareth to be ambiguous upon the deed or instrument, latens is that which seemeth certain and without ambiguity, for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth the ambiguity.” (Bacons Law Tracts, reg. pages 23, 99). But whether the ambiguity is patent or latent the present case seems to me to be wholly covered by the provisions of S. 97 of the Indian Evidence Act, 1872. (Section 100 of the Bharatiya Sakshya Adhiniyam) Extrinsic evidence was, therefore, rightly admitted and used for the purposes of solving the question whether the description of the property taken as a whole the intention was to convey the larger house in its entirely or only a portion of it. “The principle that when an instrument contains an ambiguity, evidence of user under it may be given in order to show the sense in which the parties used the language employed, applies to a modern as well as to an ancient instrument, and where the ambiguity is patent as well as where it is latent.”   

In Basudev Das v. Somenath Das, AIR 1964 Ori 63  it has been held:

“Where the language of a document is plain and unambiguous and correctly applies to existing facts a party will not be permitted to say that the property referred to in that document was some other property. But where the recitals in a sale certificate though plain in themselves do not fit in with the admitted facts, viz., the survey number, the names of the tenants and the area of the plot of land sold, and a doubt arises that either the survey number or the names of the tenants and area given must be wrong, extrinsic evidence is admissible under S.95 and S.97 of the Evidence Act (Sections 98 and 100 of the Bharatiya Sakshya Adhiniyam).”

That was a case where the sale certificate which was the document of title for the defendants contained contradictory statement. Though the total area and the names of the judgment – debtors seemed to refer survey number 186, the survey number had been wrongly shown as 186. On behalf of the defendants it was urged that this was a mis-description and the real survey number was 185. Both the lower Courts held that the sale certificate actually related to Survey No. 185 and that there was a mis-description of the plot by giving the wrong Survey No. 186. A learned single Judge of the High Court had taken a different view. While reversing the judgment of the learned single Judge and upholding the finding of both the lower Courts, a Division Bench of the Orissa High Court was of the view that it was a case of misdescription contained in the document itself. In the process, it was held that while construing the sale certificate extrinsic evidence would be admissible by virtue of S. 95 read with S. 97 of the Indian Evidence Act.

The Privy Council in Ramabhadra Naidu v. Kadiriyasami Naicker, AIR 192 PC 252 held:

“If there is no ambiguity in the words of the certificate of sale, the object of the certificate would be defeated if it were possible to change its plain meaning by reference back other documents on which the decree is based.”

That was a case where it has been mentioned in the sale certificate as whole of the land belonged to and enjoyed by the sons of the first defendant who acquired them as legal representatives of the first defendant and all incomes, rights and privileges attached to the zamindari. Having regard to the fact that at the time when the sale certificate was issued, the whole of the land in dispute were in fact in the enjoyment of the sons of mortgagor, the Privy Council was of the view that there was no ambiguity in the words of the certificate, the object in the sale certificate would be defeated if it were possible to change its plain meaning by reference to other documents. It is obvious therefore that no extrinsic evidence shall be permitted to be adduced to construe the meaning of the document what was otherwise plain and unambiguous.

In Alla Basavapunna Reddy v. Kalaga Krishnayya, AIR 1966 AP 260, it was held by Andhra Pradesh High Court thus:

“The real intention of the parties has to be gathered not merely from what ex facie is set out in the document in question but also from extrinsic evidence of user, that is to say, the evidence as to how much was taken delivery of by the auction purchaser, how much was in his actual possession and enjoyment and how much, if any was in the possession of the original owner against whom the decree – holders sought to levy execution.”

In paras 8 and 9 it was further held as hereunder:

“But it has also been ruled by the Courts that in the matter of interpretation of documents, S.95 and S.97 of the Indian Evidence Act (Sections 99 and 100) of the Bharatiya Sakshya Adhiniyam) embody important exceptions to the general rule laid down in S. 91 of the Indian Evidence Act (Section 94 of the Bharatiya Sakshya Adhiniyam) that when the terms of a contract have been reduced to writing, no evidence shall be given in proof of the terms of the contract except the document itself (or secondary evidence of its contents in certain case). The illustration to S. 95 (Section 98 of the Bharatiya Sakshya Adhiniyam) shows that if A sells to B “my house in Calcutta” and if A has no house in Calcutta but has a house in Howrah, of which B has been in possession since the execution of the deed, these facts may be proved to show that the deed related to the house in Howrah. So the illustration to S. 97 (Section 100 of the Bharatiya Sakshya Adhiniyam) shows that if A agrees to sell to B “my land at X in the occupation of Y” and A has land at X but not in the occupation of Y but it is not at X, evidence may be given to show which was intended to be sold ………… That is to say, the real intention of the parties has to be gathered not merely from what ex facie is set out in the document in question but also from extrinsic evidence of user, that is to say, the evidence as to how much was taken delivery of by the auction purchaser, how much was in his actual possession and enjoyment and how much, if any was in the possession of the original owner against whom the decree – holders sought to levy execution.

The correct view to take is that even in the case of sale certificates in the first instance the area within the boundaries must be held to prevail over the extents. But under S.95 and S.97 of the Indian Evidence Act(Section 98 and 100 of the Bharatiya Sakshya Adhiniyam), the parties could lead extrinsic evidence to show that was the true state of affairs, that is to say, whether the whole land lying within the boundaries described was taken possession of and enjoyed in fact or only the extent specified was taken possession of and enjoyed.”

d. When There Is Discrepancy Generally Boundaries Prevail Over Discerption

In Chandrakumar v. Narayanan Bahuleyan and Another ILR 2011 (2) Ker. 897: 2011 (3) KLT 185 (K. T. Sankaran, J.), High Court of Kerala, observed:

When the description of boundaries is clear, and within the four boundaries stated in the document more extent of land than that shown in the document is found to be in the possession of the plaintiffs, the mere fact that there is larger extent than that shown in the document by itself would not deprive the plaintiffs to get title to the excess extent.

In Sri Sri Sri Krishna Chandra Gajapathi Narayana Deo v. Pragada Ramamurthy Pantulu, AIR 1952 Mad. 68 it was held that the conclusiveness under S.13 of the Madras Survey and Boundaries Act, 1923 arises not from any jurisdiction with which the survey officer is endowed for adjudicating title to immovable property, but is simply an indirect result of the fixation of the survey boundary.

In Kumaran Krishnan v. Ulahannan Mathai, 1957 KLT 42 : it was held that ‘the evidence supplied by boundaries, extent, survey numbers and lekhoms forms the determining factors when the identity of property is put in issue. If all these factors harmonise there is little difficulty to identify the property in dispute. But when some of them are in conflict with the rest as when the extent and survey numbers do not agree with the boundaries usually the boundaries predominate and the rest is regarded as erroneous or inaccurate descriptions. This is not an inflexible rule and the guiding principle is to apply that test which is most unlikely to be vitiated by error.’

In Velu and Others v. Padmavathy Amma and Another, ILR 1984 (1) Ker. 30, it was held:

Sometimes the various descriptions given in a document or decree may be in conflict with each other. In such a case, the Court is called upon to adjudicate on the identity of the exact plot intended to be dealt with in the document or decree. No doubt, the Court will at first try to reconcile the various descriptions. If that be not possible, one or more of the descriptions may have to be rejected and the other decision rested only on the other description or descriptions. When one of the descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred. If none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identified the subject – matter of the transaction and the other descriptions must be rejected as erroneous or inaccurate. This is not a rule of law and therefore is not inflexible in character; it is a mere rule of construction which appears to be safe and almost an infallable guide.’

In Savarimuthu Nadar Chellayan Nadar, 1957 KLT 825: and Krishnamurthi Iyer v. Janaki Amma, 1957 KLT 886: ILR 1957 Ker. 835, it was held that when there is a conflict between the area and the boundaries, the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. It was also held that this is not an inflexible rule. That which is more certain and stable and the least likely to have been mistaken must prevail.

In Savithri Ammal v. Padmavathi Amma, 1990 (1) KLT 187: 1989 (2) KLJ 709, a Division Bench held that in cases where there is a difference in the extent and the boundary covered by a document, one or the other which is clearer and more specific has to be preferred. There is no invariable rule in this regard. The usual rule is that when there is a conflict between the area and boundaries, the description of the boundaries should be accepted in preference to the area mentioned.

Recently, in Tejal And Another v. Pragyanand And Another, the Madhya Pradesh High Court reiterated that in case of discrepancy boundaries mentioned in the sale deed would generally prevail.

(See also, Zamindar of Pahipenta v. Maharajah of Jeypore, XXIII MLJ 97, Subbayya Chakkiliyan v. Manjan Muthia Goundan and Another, AIR 1924 Mad. 493, Durga Prasad Singh v. Rajendra Narain Bagehi, ILR (37) Cal. 293, )

e. Doctrine of Falsa Demonstration Or Blue Pencil Theory

In Parekh Brothers v. Kartick Chandra, AIR 1968 All. 532, a Division Bench held as under:

“The doctrine of false demonstration which has been often described as the blue pencil theory authorises a Court in certain circumstances to strike out from a deed few repugnant and insensible words. But where the words in themselves are quite sensible and the document taken at its face value is perfectly consistent the Court cannot ignore the plain meaning of the document and strike out a few words only to make the document conform to the actual facts of the case. The Courts power is confined to correct such inconsistency and insensibleness as appears from intrinsic evidence. Thus wrong grammar or spelling may be corrected; words that are merely insensible or that are repugnant or that have been obviously left in by mistake or that have been immaterial and surplusage and even whole provisions may be rejected.”

In Basavapunna Reddy v. Krishnayya, AIR 1966 AP 260 referred to supra in para 8 it has been held thus:

“Another common case is where land within certain boundaries is sold and is wrongly described as containing a certain area, the error in area is regarded as a mere misdescription and does not vitiate deed. The maxim demonstratio falsa non nocet applies.”

7. Who may give evidence of agreement varying terms of document – Whether S. 95 applies to Strangers

Section 102 of the Bharatiya Sakshya Adhiniyam (Section 99 of the Evidence Act), reads as follows:

Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.

Illustration

A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery. At the same time, they make an oral agreement that three months’ credit shall be given to A. This could not be shown as between A and B, but it might be shown by C, if it affected his interests.

S.92 (Section 95 of the Bharatiya Sakshya Adhiniyam) does not bar third parties from adducing oral evidence to show contemporaneous agreement varying the terms of the original document. Section 99 is in the nature of a clarification.

In Bai Hira Devi v. Official Assignee of Bombay AIR 1958 SC 448, the Supreme Court held that S. 92 of the Evidence Act (Section 94 of the Bharatiya Sakshya Adhiniyam) is not applicable to strangers to the documents/ third parties. Speaking through, P. B. Gajendragadkar J, observed that:

…… the effect of S.99 (Section 102 of the Bharatiya Sakshya Adhiniyam)  is not only to allow strangers to lead such evidence, but to prohibit parties or their representatives in interest from leading such evidence independently of the provisions of S.92, Evidence Act (Section 95 of the Bharatiya Sakshya Adhiniyam). We do not read S.99 (Section 102 of the Bharatiya Sakshya Adhiniyam)  as laying down any such prohibition by necessary implication. As a matter of fact, from the terms of S.92 (Section 95 of the Bharatiya Sakshya Adhiniyam) itself, it is clear that strangers to the document are outside the scope of S.92 (Section 95 of the Bharatiya Sakshya Adhiniyam); but S.99 (Section 102 of the Bharatiya Sakshya Adhiniyam)  has presumably been enacted to clarify the same position. It would be unreasonable, we think, to hold that S.99 (Section 102 of the Bharatiya Sakshya Adhiniyam) was intended not only to clarify the position with regard to the strangers to the document, but also to lay down a rule of exclusion of oral evidence by implication in respect of the parties to the document or their representatives in interest. In our opinion, the true position is that, if the terms of any transfer reduced to writing are in dispute between a stranger to a document and a party to it or his representative in interest, the restriction imposed by S.92 (Section 102 of the Bharatiya Sakshya Adhiniyam)  in regard to the exclusion of evidence of oral agreement is inapplicable; and both the stranger to the document and the party to the document or his representative in interest are at liberty to lead evidence of oral agreement notwithstanding the fact that such evidence, if believed, may contradict, vary, add to or subtract from its terms. The rule of exclusion enunciated by S.92 (Section 102 of the Bharatiya Sakshya Adhiniyam) applies to both parties to the document and is based on the doctrine of mutuality. It would be inequitable and unfair to enforce that rule against a party to a document or his representative in interest in the case of a dispute between the said party or his representative in interest on the one hand and the stranger on the other. In dealing with this point we may incidentally refer to the relevant statement of the law by Phipson in his treatise on “Evidence”:

“Where the transaction has been reduced into writing merely by agreement of the parties”, it is observed, “extrinsic evidence to contradict or vary the writing is excluded only in proceedings between such parties or their privies, and not in those between strangers, or a party and a stranger; since strangers cannot be precluded from proving the truth by the ignorance, carelessness, or fraud of the parties R. v. Cheadle, (1832) 3B and Ad 833 (A); nor, in proceedings between a party and a stranger, will the former be estopped, since there would be no mutuality, Phipson on Evidence – 9th Ed., p. 602”.”

8. Saving of Provisions of the Indian Succession Act As To Construction of Wills

Section 103 of the Bharatiya Sakshya Adhiniyam (Section 100 of the Evidence Act) reads as:

Nothing in this Chapter shall be taken to affect any of the provisions of the Indian Succession Act, 1925 as to the construction of wills.

Provisions relating to construction of ‘Will’ is contained in Sections 74 to 111, in chapter VI of Part VI of the Indian Succession Act 1925.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’.

Option for Payment

The Author has put in a lot of effort in preparing this study material/commentary comprising 28 modules spreading across 1000 pages. If you feel that this material is useful for you, you may send your contributory remuneration to the following phonePe No or to the following Bank Account:

Phonepe No – 9846151718    QR code

Bank Account:

Name – Nizam. A, SB A/c No 30083188312, IFS Code SBIN0003054,

ADB Alleppey Branch, State Bank of India.

Payment is optional and not mandatory

Exercise Questions

  1. Under the Indian Evidence Act in certain cases oral evidence is excluded by documentary evidence. State the circumstances in which oral evidence is excluded and also the exceptions to that rule?
  2. What is Nominal / Sham document. Whether evidence to establish that a document is sham or never intended to take effect, is admissible?
  3. Explain Patent ambiguity and latent ambiguity referring to relevant provision in the Evidence Act