Documentary Evidence

(Sec 61-90)
Document are denominated as "dead proof" as distinguished from witness who are said
to be "living proofs"

Documentary evidence is superior to oral evidence in permanence & in many respects,

The content of documents may be proved either by primary or by secondary evidence.

The content need not be proved by the author of document and can be proved by any
other evidence but by book itself.
Sec 63
Case- UOI V. Nirmal Singh [AIR 1987 AU 83] An uncertified photocopy of a govt. order
can not be given in secondary evidence

Generally speaking "copy of copy" is not admissible as secondary evidence but the
copies prepared by a mechanical process & copies of A copy compared with the original
are secondary evidence.

General Rule :- It may be noted that secondary evidence of the contents of a written
instrument can not be given unless there is some legal excuse for non production of the
original (primary evidence)
Sec 65: "when secondary evidence relating to
documents my be given"
(a) when the original is shown or appears to be in the possession or power of a person against
whom the document is sought to be proved (adverse party)
(b) when the adverse party admit the contents of document in writing (e.g- in written
statement)
(c) When the original has been destroyed or last.
(d) when the original is of such a nature as not to be easily movable (e.g. bulky documents)
(e) when Act itself permits certified copies to be given in evidence.
(f) when the original consists of numerous accounts or other document which can not be
conveniently examined in the court & the fact to be provided is the "general result" of the
whole collection.
Case - state (NCT of Delhi) V. Navjot Sandhu [(2005) 11 SC 600] Call records of cellular
phones are stored in huge servers, which cannot be easily moved & produced in courts.
Hence, secondary evidence of such records should be allowable u/s 63 & 65.
Objection as to secondary evidence when can be
raised
(a) objection that the document sought to be proved is itself inadmissible, than
objection can be raised even after the document has been marked as an exhibit or even
in appeal or revision.

(b) objection an the ground of irregularity or insufficiency than it can be raised when the
evidence is tendered but not after the document has been admitted in evidence &
marked as an exhibit. {case - R. V. Venkatachala gounder V. A. Viswearaswani [(2003)
8 SCC 752]}
Sec 66:- section lays down that a notice (to produce a document) must be given before secondary evidence can
be received u/s 65(a).

Exception to this rule-

(1) when the document to be proved is itself a notice.

(2) when from the nature of the cases, the adverse party must know that he will be required to produce it.

(3) When it appears or is proved that the adverse party has obtained possession of the original by force or fraud.

(4) when the adverse party or his agent already has the original in court.

(5) when the adverse or his agent has admitted that the original has been last.

(6) when the person in possession of the document is out of reach of, or not subject to, the process of the court,
(viz, a foreign ambassador)
The requirement of notice u/s 66 is to be strictly complied with.

Sec 164- Clearly says that where a party has required to another to produce a document
& he has refused to do so, he can't afterwards use the document as evidence unless he
obtains the other party's consent of the court's order.
Sce 68
sec lays down that if a document required by law to be attested is produced as evidence, at
least one attesting witness shall be called to prove the execution of the document.
This principal will apply only if at least on of the attesting witness is alive, capable of giving
evidence & subject to the process of the court.
sec 68 further provides that no attesting witness need be called in the case of document (Not
being a will), which has been registered under the Indian Registration Act 1908 and the person
executing it does not specifically deny its execution.
So as per section 68 WILL is always be required to proved to through at least one attesting
witness, otherwise all others registered documents may directly produced before the court as a
evidence without bringing any attesting witness in court.
Sec 71
sec 71 is in the nature of a safeguard to the mandatory provision of sec 68 to meet a
situation where it is not possible to prove the execution of the WILL by calling the
attesting witness, though alive.

Sec 71 is permissive and enabling section permitting a party to lead other evidence in
certain circumstances.

Badri Narayanan V. Raja bajyahammal [(1996) 7 SCC 101] Where the attester was an
illiterate person and he attested by putting his thumb impression, he was not bound by
the document unless it could be shown that the document was read out to him & he
understood it.
Exclusion of Oral by Documentary
Evidence
where both oral as well documentary evidence are admissible 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 oral evidence.

The provision as to exclusion of oral by documentary evidence are based on the rule of
'best evidence'. The written instruments are entitled to more credit than parole (or oral)
evidence.

However, in certain exceptional cases, oral evidence can be given regarding the
documents.
Sec 91- Evidence of Terms of contracts, Grants, etc.
Reduced to Document
"When the terms of a contract, grant or some other disposition of property is reduced to
the from of a document or is required by law to be reduced to a document, no evidence
shall be given for the proof of the terms of such contract, etc Except the primary or
secondary evidence of the writing itself".
It incorporates rule of "best evidence"
Rule contained in sec 91 applies to the terms & not to the factum (or existence) of a
contract, & evidence in proof of a factum of a contract is not excluded.
The Section extends to both types of transaction namely which have voluntarily been
made by writing and for which writing is compulsory; it does not apply to oral contracts.
Exception 1:- Where the appointment of a public officer is required by law "to be made by
writing & the question is whether an appointment was made, if it is shown that a particular
person has acted as such officer, that will be sufficient proof and the writing need not be
proved E.g.:- (1) A appears before the court as a witness & says that he is a civil surgeon.
Exception 2:- Will may be proved by the probate, the document containing the Will need not be
produced. 'Probate'-means the copy of the Will certified under the seat of the court with a
grant of administration to the estate of the testator. (Exception 2 read with sec 65)
Explanation 1:- This section applies equally to cases in which the contracts etc are contained
in one document or [read with, more than one. If a contract is contained in several sec 62]
letters, all the letters must be proved.
Explanation 2 :- where there are more original than one, one original only need be proved.
illustration (b)- If a contract is contained in a bill of exchange, the bill of exchange must
be proved.
Illustration (c)- If a bill of exchange is drawn in a set of three, one only need be proved.
Explanation 3 :- wherein addition to the terms of the contract, etc, a document refers to
any other fact also, as to that fact oral evidence is always allowed.
illustration (d)- A contract, 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 other occasion. Oral evidence is offered that no payment was
made for the other indigo. The evidence is admissible.
Illustration (e)- A gives B receipt for money paid by B. Oral evidence is offered of the
payment, the evidence is admissible.
Sec 92 Exclusion of Evidence of oral agreement
Once any such contract, grant or disposition has been proved by the writing, then no
evidence can be given of any oral agreement to contradict or change the terms of the
contract.

Sec 92 only precludes the parties to the document and their representative - in- interest
from giving oral evidence concerning the contents of document.

Exception :- other parties (or strangers) are left free to give such evidence. so sec 92
applies only to bilateral one (only to parties & not to strangers) but sec 91 applies both
to unilateral and bilateral documents. (Read with sec 99)
Exceptions :- when oral Evidence can be given
regarding a Document
1. Validity of document:- When the validity of the document is in question on the
ground of fraud, intimidations illegality, failure of consideration,. mistake of fact or law,
then the oral evidence to prove the validity of the document can be given
illustration (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 Bʼs
as to their value. This fact may be proved.
Illustration (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 the
provisions 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.
(2) Matters on which document is silent Evidence can be given of an oral agreement on a
matter on which the document is silent But the oral agreement should not be inconsistent with
the terms stated in the document.
illustration (f)- A orders goods of B by a letter in which nothing is said as to the time of
payment, and accepts the goods of delivery. B sues A for the price. A may show that the goods
were supplied on credit for a term still unexpired.
Illustration (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 Rs. 500”. B may prove the verbal warranty.
E.g.:- A written agreement is silent as to the time of payment of price. If there is any oral
agreement regarding this, it may be proved.
Brij Kishore V. Lakhan Tiwari [AIR 1978 All 374] Held that when the document is such that
one may reasonably believe that the entire terms & conditions agreed were sought to be put
into the document, them oral evidence should not be allowed. In this case, the document was
silent about the interest payable & therefore oral evidence was offered on the point.
(3) Condition precedent Where there is a separate oral agreement that the terms of a written contract
are not to take effect until a condition precedent has been fulfilled 77 or a certain event has happened,
oral evidence is admissible to show that as the event did not take place, there is no written agreement
at all.
illustration (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 suit for the amount A may prove this.
Illustration (j)- A and B make a contract in writing to take effect upon the happening of certain
contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which
it was delivered.
Naraindas V. papammal [AIR 1967 SC 333] Held that where the parties to a promissory note payable
on demand, orally agreed that payment would not be demanded for 5 years, the court allowed the oral
agreement to be proved.
(4) Rescission or Modification where after executing a document, the parties orally agree to
treat it as cancelled or to modify same of its terms, such oral agreement may be proved.
(5) Usages or customs oral evidence is admissible to explain or supply terms in commercial
transaction on the presumption that the parties did not intend to put into writing the whole of
their agreement, but impliedly agreed that their contact was to be deter mined or interpreted
or regulated by established usages & customs. provided they are not inconsistent with the
terms of such contract.
(6) Relation of language to facts This exception comes into play when there is latent
ambiguity in a document i.e. when there is conflict between the plain meaning of the language
used & the existing facts. so in such cases oral evidence may be admitted to ascertain the real
intention of the parties.
(7) Document refers any other fact not mentioned in written from where in addition
to the terms of the contract etc, a document refers to any other fact also, as to that fact
oral evidence is always allowed illustration (d of sec 91) - A contract, 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 other occasion. Oral evidence
is offered that no payment was made for the other indigo. The evidence is admissible.

Illustration (e of sec 91)- A gives B receipt for money paid by B. Oral evidence is offered
of the payment, the evidence is admissible.
(8) Appointment of public officer (Exception 1 of sec 91) It is shown that a particular person has
acted as such officer, that will be sufficient proof & the writing need not be proved.

e.g:- A appears before the court as a witness & says that he is a civil surgeon.

Sara Veeraswami V. Talluri Narayya [AIR 1949 PC 32] The appellant sold some property through a
registered sale deed in 1932. It was an outright sale But simultaneously, there was an oral agreement
for sale and right to re-conveyance if sale price was repaid with in 5 yrs. In this case it is necessary to see
whether oral agreement as to the re-conveyance of property sold, contradicts, varies, adds to or
subtracts from the term of sale document. so the question involved in dispute is whether the document
is a sale with or without right to re-conveyance as per oral agreement & benefit of proviso to sec 92 is
available? Held that to add a stipulation which is quite unconnected with the terms of sale is not an
addiction of the kind struck at by the section. Thus proviso 2 to sec 92 is applicable & oral agreement is
a valid separate transaction which will prevail. The appellants will succeed.
Bishwanath Prasad Singh V. Rajendra Prasad [(2006) 4 SCC 432] In a sale of property
with the condition of reconveyance within a specified time, the seller failed to exercise
the option within the time delimited. He was not afterwards allowed to say that the
transaction was in essence a mortgage & he should be allowed to redeem it.
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