Analysis of Sections 91 and 92 of the Indian Evidence Act, 1872

The Parol Evidence Rule and the Sanctity of Written Documents: An Analysis of Sections 91 and 92 of the Indian Evidence Act, 1872

Introduction

Sections 91 and 92 of the Indian Evidence Act, 1872 (hereinafter "the Act"), stand as cornerstones in the law of evidence, particularly concerning documentary evidence. Section 91 enunciates the "best evidence rule," mandating that the contents of a document must be proved by the document itself. Section 92, often termed the "parol evidence rule," complements Section 91 by excluding oral evidence that seeks to contradict, vary, add to, or subtract from the terms of a written instrument once its terms have been proved by the document. These provisions aim to lend finality and sanctity to written agreements, preventing the uncertainty that could arise from relying on "slippery memory."[9], [11] This article undertakes a comprehensive analysis of Sections 91 and 92, examining their foundational principles, scope, applicability, the crucial provisos to Section 92 that permit extrinsic evidence under specific circumstances, and their interpretation by the Indian judiciary, drawing heavily upon the provided reference materials.

The Core Principles of Sections 91 and 92

Section 91: The Best Evidence Rule

Section 91 of the Act stipulates that when the terms of a contract, grant, or any other disposition of property have been reduced to the form of a document, or where any matter is required by law to be in writing, no evidence shall be given in proof of such terms or matter except the document itself, or secondary evidence of its contents where admissible.[10], [17] This rule is described as the "best evidence rule," emphasizing that the primary evidence of a document's contents is the document itself.[7] The Supreme Court in Roop Kumar v. Mohan Thedani[6], [21] affirmed that Section 91 mandates the production of the writing itself to prove its contents. It is an exclusive rule, precluding oral evidence for proving the document's contents, save for situations where secondary evidence is permissible under other provisions of the Act.[7] As observed in V. Anantha Raju v. T.M. Narasimhan, Section 91 is concerned solely with the mode of proof of a document.[9], [11], [19]

Section 91 provides two exceptions: first, regarding the appointment of a public officer required by law to be in writing, where proof of acting as such officer suffices without proving the written appointment; and second, wills admitted to probate in India may be proved by the probate.[10], [17]

Section 92: Exclusion of Oral Evidence (Parol Evidence Rule)

Section 92 comes into play once the terms of a contract, grant, or disposition of property (or any matter required by law to be in writing) have been proved by the production of the document under Section 91. It then bars the admission of any oral agreement or statement, 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.[7], [12] This rule is designed to protect the integrity of written instruments by preventing parties from later attempting to alter their documented commitments through oral testimony.[6], [21] The application of Section 92 is, however, strictly limited to disputes between the parties to the instrument or their representatives in interest.[5], [8]

Interplay and Rationale

Sections 91 and 92 are complementary. As stated in Sudesh Madhok v. Paam Antibiotics Ltd., "Section 91 would be frustrated without the aid of Section 92 and Section 92 would be inoperative without the aid of Section 91."[7] This symbiotic relationship was also highlighted by the Supreme Court in V. Anantha Raju v. T.M. Narasimhan, which noted that these sections "in effect supplement each other."[9], [11], [19] The underlying rationale for these provisions is the "best-evidence rule" and the desire for certainty in transactions. Lord Bacon's maxim, cited in V. Anantha Raju, aptly captures this: "The law will not couple and mingle matters of specialty, which is of the higher account, with matter of averment which is of inferior account in law. It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory."[9], [11], [19] Similarly, it has been observed that written instruments are entitled to a much higher degree of credit than oral evidence because they presume deliberation.[13]

Scope and Applicability

Nature of Documents Covered

A distinction exists in the types of documents to which Sections 91 and 92 apply. Section 91 applies to all documents, whether they purport to dispose of rights or not, and encompasses both bilateral and unilateral documents.[5], [8], [9], [11] In contrast, Section 92 applies specifically to documents which can be described as dispositive (i.e., those that create, extinguish, or modify rights) and is confined to bilateral documents.[5], [8], [9], [11] Furthermore, both sections apply "only when the document on the face of it contains or appears to contain all the terms of the contract."[9], [11], [13], [19]

Parties to Whom Section 92 Applies

A critical limitation of Section 92 is that its exclusionary rule operates only "as between the parties to any such instrument or their representatives in interest." Strangers to the document are not precluded from giving extrinsic evidence to contradict, vary, add to, or subtract from its terms.[5], [8] Section 99 of the Act explicitly permits persons who are not parties to a document, or their representatives in interest, to give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.[8]

The Supreme Court's decision in Bai Hira Devi And Others v. Official Assignee Of Bombay[5], [8] provides a significant illustration. The Court held that an Official Assignee, when seeking to declare a deed void under Section 55 of the Presidency-towns Insolvency Act for the benefit of creditors, is not acting as a "representative in interest" of the insolvent within the meaning of Section 92. Therefore, the Official Assignee (and consequently the appellants challenging the Assignee's action) was not barred by Section 92 from adducing oral evidence to show the true nature of the transaction (e.g., that a purported gift deed was actually for valuable consideration). This principle was also affirmed in K.J. Abraham v. Mariamma Itty.[22]

Provisos to Section 92: Permitting Extrinsic Evidence

Section 92 is not absolute and is subject to six provisos, which carve out exceptions allowing the admission of oral evidence in specific circumstances. These provisos mitigate the rigidity of the main section, ensuring that it does not become an instrument of injustice.

Proviso 1: Facts Invalidating a Document

Proviso (1) permits proof of any fact 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.[12] This proviso is frequently invoked in cases of alleged sham transactions. The Supreme Court in Ishwar Dass Jain (Dead) Through Lrs. v. Sohan Lal (Dead) By Lrs.[2], citing Gangabai v. Chhabubai, held that oral evidence is admissible to demonstrate that a document was never intended to operate as an agreement, thereby negating its legality as a binding document. This principle was reiterated in Roop Kumar v. Mohan Thedani.[6], [21]

Proviso 2: Separate Oral Agreements on Matters Not Inconsistent

Proviso (2) allows evidence of a separate oral agreement on any matter on which the document is silent, and which is not inconsistent with its terms. The court must also consider whether the terms of the separate oral agreement are likely to have been included in the document. In P. Veerasamy & Others v. V. Soundararajan[12], the court noted that if a transaction is contained in more than one document between the same parties, they must be read together. While this case dealt with a collateral *written* agreement, Proviso (2) specifically addresses *oral* agreements on distinct, non-contradictory matters.

Proviso 3: Separate Oral Agreement as a Condition Precedent

Proviso (3) permits evidence of a distinct subsequent oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property. In P.B Bhat v. V.R Thakkar[14], it was observed that Section 92 has no application to a provision in the nature of a condition precedent to the very existence or formation of a contract.

Proviso 4: Distinct Subsequent Oral Agreement to Rescind or Modify

Proviso (4) allows proof of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property. However, this is subject to a crucial limitation: such an oral agreement is not admissible if the contract, grant or disposition of property is one which 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. The Supreme Court in S. Saktivel (Dead) By Lrs. v. M. Venugopal Pillai And Others[4] held that an alleged subsequent oral arrangement could not modify the terms of a registered settlement deed, as Proviso (4) explicitly prohibits parol evidence to modify a registered instrument. This was also cited in Firstcorp International Limited v. Kuljit Singh Bhutalia.[23]

Proviso 5: Usage or Custom

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

Proviso 6: Extrinsic Evidence to Show How Language Relates to Existing Facts

Proviso (6) permits evidence of facts which show in what manner the language of a document is related to existing facts. This is often used to explain ambiguities, whether patent or latent, or to identify persons or property. The scope of this proviso was considered in Sait Bolumal Dharmdas Firm v. Gollapudi Venkatachelapathi Rao[15] and P.B Bhat v. V.R Thakkar[14], particularly in contexts where the true nature of a transaction (e.g., whether a sale was absolute or a security) was in question, based on surrounding circumstances.

Specific Contexts and Judicial Interpretations

Unregistered Documents and Evidentiary Value

The case of Hafeeza Bibi And Others v. Shaikh Farid (Dead) By Lrs. And Others[1] provides an interesting perspective. The Supreme Court held that an unregistered gift deed under Mohammadan Law is valid if the three essential requisites of a Hiba (declaration, acceptance, and delivery of possession) are met. Section 129 of the Transfer of Property Act, 1882, exempts Mohammadan gifts from the requirements of Section 123 (which mandates registration for gifts of immovable property). The Court noted that a written deed of gift by a Mohammadan serves merely as evidence of the gift and does not constitute the instrument effecting the gift. If the document is merely evidentiary of an already completed oral transaction, the strictures of Sections 91 and 92 regarding the "terms reduced to the form of a document" may apply differently than when the document itself is the dispositive instrument.

Promissory Notes and Loan Transactions

In Dhaneswar Sahu v. Ramrup Gir[16], it was highlighted that if a contract is contained in a bill of exchange (or promissory note), Section 91 mandates that the bill of exchange itself must be proved. This underscores the application of the best evidence rule to negotiable instruments which embody the terms of the financial obligation.

Impact on Other Legal Principles

The application of Sections 91 and 92 can intersect with other legal doctrines. For instance, in Mohhamed Khan (Dead) Through Legal Representatives v. Ibrahim Khan And Another[18], the Supreme Court observed that even if a defence put up by a party might be barred by Sections 91 and 92 of the Evidence Act, this would be of no consequence to a plea of res judicata if the matter directly and substantially in issue had already been heard and finally decided in an earlier suit between the same parties.

Conclusion

Sections 91 and 92 of the Indian Evidence Act, 1872, play a pivotal role in maintaining the certainty and solemnity of written documents. By establishing the best evidence rule and the parol evidence rule, they ensure that written terms, deliberately chosen by parties, are not easily displaced by subsequent oral assertions. However, the law, through the provisos to Section 92, recognizes that a strict and unyielding application of these rules could lead to injustice. These exceptions allow courts to look beyond the written word in circumstances of fraud, mistake, sham transactions, or to understand the true context of an agreement. The judiciary's interpretation of these sections, as seen through numerous landmark cases, continues to refine the delicate balance between upholding the sanctity of written agreements and ensuring that the rules of evidence serve the ultimate cause of justice. The principles enshrined in Sections 91 and 92 remain profoundly relevant in the contemporary legal landscape, guiding the conduct of transactions and the adjudication of disputes in India.

References