While signing a contract, it is important to ensure that the whole agreement is in writing. The reason for this lies in the depths of the Evidence Act of 1872.

Sections 91 to 100 are based upon the principle that the best evidence must always be given, and the acceptance of the fact that no matter how good a person’s memory may be, the best evidence of the content of a document is the document itself.

The principle does not demand the largest amount of evidence – it simply requires the best evidence and since this is documentary evidence, oral evidence is excluded. However, it was held in Javarasetty v. Ningamma, 1992, that oral evidence is not excluded when the writing in question is not evidence of the matter reduced to writing; there is no reason for the Court to prefer either documentary or oral evidence to the other.

The general rule excluding oral evidence in the presence of documentary evidence is laid down in Sections 91 and 92. The general rule is subject to the ‘exceptions’ contained in Sections 93 to 100 which speak of how oral evidence may be used to interpret documents.

91. 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.

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.

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 then the facts referred to in this Section, shall, not preclude the admission of oral evidence as to the same fact.

Under this Section, no oral evidence can be given of the terms of a written contract, grant or other disposition of property. However, oral evidence may be given to show:

1. there was no agreement between the parties and as such, no contract (Tyagaraja Mudialiar v. Vadethanni, 1935)
2. a condition precedent to the formation of the contract (P B Bhatt v. V R Thakkar, 1971)

Thus, the only oral evidence excluded by this Section is oral evidence regarding the terms written in a document. If there is no document, this Section does not apply.

For example, under Hindu law, a partition may be oral. If it is oral, Section 91 has no application. But if it is in writing, the Section applies (and if it involves immovable property, the document must be registered).

The first exception to this Section deals with the appointment of a public officer and is partly a reflection of the maxim ‘Omnia praesumuntur rite esse acta’ which means that all acts are presumed to be rightly done (which is also seen in Section 79).

The second exception says that probate is admissible (even though it is secondary evidence).

This Section should be read along with (a) Section 364 of the Code of Criminal Procedure, (b) O XVIII R 5 of the Code of Civil Procedure and (c) the proviso to Section 49 of the Indian Registration Act which respectively say that (a) evidence may be taken to show that a recorded statement of an accused person was duly made if a Criminal Court finds that the statement was not recorded in the proper manner, (b) the deposition of a witness must be read over to him (and if this is not done, oral evidence of its contents is inadmissible) and (c) an unregistered document which is required to be registered is admissible as evidence of collateral facts or any collateral transaction which need not be effected by a registered document.

92. Exclusion of evidence of oral agreement

When the terms of any such contract, grantor 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 of statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for purpose of contradicting, varying, adding to, or subtracting from, its terms

Proviso (1) – Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure] of consideration, or mistake in fact or law.

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

Proviso (3) – The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

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

Proviso (5) – Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved provided that the annexing of such incident would not be repugnant to, or inconsistent with the express terms of the contract.

Proviso (6) – Any fact may be proved which shows in what manner the language of a document is related to existing facts.

This Section supplements Section 91 as it would be pointless to make evidence of a document (other than the document itself) inadmissible if it contradicting, varying, adding to, or subtracting from its terms was permitted.

Sections 91 and 92 are, as the Supreme Court pointed out in Roop Kumar v. Mohan Thedani, 2003, different in some material particulars. It was held that ‘Section 91 aplies to all documents, whether they purport to dispose of rights or not whereas Section 92 applies to documents which can be described as dispositive. Section 91 applies to documents which are both bilateral and unilateral, unlike Section 92 whose application is confined to bilateral agreements’.

Proviso 1 deals with agreements whose validity has been impeached (See Illustrations d and e) and should be read with Section 31 of the Specific Relief Act.

Section 92 applies only when there is no infirmity in the document; facts which invalidate a document can be proved by oral evidence.

Proviso 2 deals with matters on which the agreement is silent. (See Illustrations f, g and h) It is under this proviso that oral evidence is admissible on matters which the document does not speak of although the evidence given cannot be inconsistent with the written terms of the agreement. Also, the Court considers the formality of the document which deciding whether or not the proviso applies i.e. a Court may permit the missing links in a document drafted by a layman to be filled in by oral evidence but may not do so if the document in question has been drafted by a team of lawyers: in such a case, the Court may conclude that what has been left blank has been deliberately left blank.

Proviso 3 deals with conditions precedent to obligation. For example, Section 144 of the Contract Act which deals with guarantees says ‘where a person gives a guarantee upon a contract that a creditor shall not act upon it till another person has joined in it as co-surety, the guarantee is not valid if that other person does not join. Here, the agreement that the person would be under no obligation until a co-surety joined in the guarantee may be proved.

References: The Indian Evidence Act, Ratanlal and Dhirajlal on Evidence, Batuklal on Evidence