Section 91 Indian Evidence Act

The Rule of Exclusion: A Comprehensive Analysis of Section 91 of the Indian Evidence Act, 1872

Introduction

Section 91 of the Indian Evidence Act, 1872 (hereinafter "the Act"), stands as a cornerstone of the law of evidence, embodying the "best evidence rule." This principle mandates that when the terms of a contract, grant, other disposition of property, or any matter required by law to be reduced to writing have been so documented, the document itself is the primary and generally exclusive evidence of those terms.[10] The rationale underlying this provision is to ensure precision, prevent fraud, and uphold the sanctity of written instruments by precluding the admission of less reliable oral testimony to prove the contents of such documents.[9], [11] This article undertakes a comprehensive analysis of Section 91, exploring its foundational principles, its intricate relationship with Section 92 of the Act, its scope of application, recognized exceptions and limitations, and its interpretation through significant judicial pronouncements in India.

The Principle of Exclusion: Understanding Section 91

Section 91 of the Evidence Act stipulates:

"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."[10]

The Supreme Court of India in Duli Chand (Dead) By Lrs. v. Jagmender Dass emphasized that Section 91 is based on the "best evidence rule," meaning the best evidence about the contents of a document is the document itself.[9] This rule is considered exclusive, barring oral evidence for proving the document's contents, except where secondary evidence is permissible.[9], [11] The fundamental rule of construction is to ascertain the intention of the parties from the words used in the document, which is considered the written declaration of the author's mind.[18] Thus, original documents are deemed to conclusively prove their contents.[13] When persons express their agreements in writing, it is to eliminate indefiniteness, and such written instruments are accorded a higher degree of credit than oral statements.[14] Consequently, where a transaction, like a sale, is embodied in a registered deed, the consideration recorded therein is generally conclusive, and other evidence to contradict it is barred by Section 91.[20]

Relationship with Section 92 of the Evidence Act

Sections 91 and 92 of the Evidence Act are complementary and mutually supportive.[7], [11], [13] Section 91 mandates the production of the document (or permissible secondary evidence) to prove its terms. Once the document's terms have been so proved, Section 92 comes into operation.[11] Section 92 excludes evidence of any oral agreement or statement for the purpose of contradicting, varying, adding to, or subtracting from the terms of such a written contract, grant, or disposition of property, as between the parties to the instrument or their representatives in interest.[8], [11], [13]

As observed 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."[11] However, Section 92 is subject to several provisos which permit oral evidence in specific circumstances, such as to prove facts that would invalidate the document (e.g., fraud, intimidation, illegality, want of due execution, want of consideration – Proviso 1), or to prove a distinct subsequent oral agreement to rescind or modify the contract, unless such contract is required by law to be in writing or has been registered (Proviso 4).[6], [13] The Supreme Court in S. Saktivel (Dead) By Lrs. v. M. Venugopal Pillai And Others clarified that under Proviso (4) to Section 92, an oral agreement cannot modify a registered settlement deed, as any modification to such a document must also be in writing and registered if necessary.[6]

Scope and Applicability of Section 91

Section 91 applies to two broad categories: (i) contracts, grants, and other dispositions of property reduced to writing, and (ii) matters required by law to be reduced to the form of a document.

A. Contracts, Grants, and Other Dispositions of Property

This limb covers documents like sale deeds, mortgage deeds, lease agreements, and gift deeds, provided they are reduced to writing by the volition of the parties. In K.B Saha And Sons Private Limited v. Development Consultant Limited, the Supreme Court held that an unregistered lease deed (required to be registered) could not be used to prove terms that were not "collateral" but integral to the tenancy, such as a specific usage clause, for the purpose of enforcing it.[1] Similarly, in Ishwar Dass Jain (Dead) Through Lrs. v. Sohan Lal (Dead) By Lrs., the terms of a mortgage were to be primarily ascertained from the mortgage deed itself.[3]

B. Matters Required by Law to be Reduced to the Form of a Document

This refers to transactions or declarations that specific statutes mandate must be in writing, often also requiring registration (e.g., under the Transfer of Property Act, 1882, or the Registration Act, 1908). As seen in S. Saktivel, a registered settlement deed falls into this category, and its terms, once documented and registered, are paramount.[6] However, the application of Section 91 becomes nuanced with personal laws. In Hafeeza Bibi And Others v. Shaikh Farid (Dead) By Lrs. And Others, the Supreme Court affirmed that under Mohammadan Law, a gift (Hiba) can be made orally; writing is not essential. If a deed of gift is contemporaneously prepared, it is merely evidence of the gift, not the gift itself.[2] Therefore, if the personal law does not require the transaction to be in writing for its validity, Section 91's second limb is not directly triggered for the transaction itself, although if one seeks to prove the terms *from the document* that was created, Section 91 would apply to that document.

C. Proving the "Terms" of the Document

Section 91 specifically bars oral evidence in proof of the "terms" of the document. A distinction is often drawn between proving the terms of a transaction and proving the mere factum or existence of a transaction. For instance, in cases involving promissory notes, if the note itself embodies the entire contract of loan, and the note is inadmissible (e.g., due to improper stamping), Section 91 may prevent oral proof of the loan terms.[16], [17] However, if there was an original cause of action independent of the note, that might be provable.[16] The Patna High Court in Dhaneswar Sahu v. Ramrup Gir noted that an implied contract to repay money lent always arises from the fact of lending, even without an express promise.[17] In Naresh Kumar And Others v. Narain And Others, it was held that while jamabandi entries could establish the factum of a mortgage, the terms of the mortgage could only be proved by the mortgage deed itself (if reduced to writing and registered).[27]

Exceptions and Limitations to Section 91

While Section 91 lays down a stringent rule, its application is subject to certain exceptions and limitations, some inherent and others developed through judicial interpretation or interaction with other statutes.

A. Secondary Evidence

Section 91 itself permits the admission of "secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained" (i.e., Sections 63 and 65 of the Act).

B. Collateral Transactions/Purposes

This often arises in conjunction with Section 49 of the Registration Act, 1908, which deals with the effect of non-registration of compulsorily registrable documents. An unregistered document, though inadmissible to prove the terms of a transaction affecting immovable property, may be received as evidence of a collateral transaction not required to be effected by a registered instrument.[1] In K.B Saha, the Supreme Court clarified that an unregistered lease could be looked into for a collateral purpose, such as proving the nature and character of possession, but not for enforcing its primary terms.[1] The scope of "collateral purpose" is, however, limited and cannot be used to establish the transaction itself if it directly affects immovable property.[19], [24] Courts have grappled with using unregistered partition deeds, generally holding they cannot affect property or be evidence of a transaction affecting property, though the factum of severance of status or partition (if not the terms of allotment of specific properties) might be provable by other evidence.[22], [23]

C. Strangers to the Document

The exclusionary rule, particularly as extended by Section 92, primarily applies "as between the parties to any such instrument or their representatives in interest."[11] Strangers to the document are generally not bound by these restrictions. In Bai Hira Devi And Others v. Official Assignee Of Bombay, the Supreme Court held that the Official Assignee, when seeking to avoid a deed of gift executed by an insolvent, was not a representative in interest of the insolvent for the purposes of Section 92 and could lead oral evidence to show that the transaction was actually for valuable consideration, contrary to the deed's terms.[7] Similarly, in Tippu Mohammed v. State Of Kerala, an accused was held not to be a party to a seizure mahazar (a document unilaterally created by the prosecution) and thus could challenge its veracity through means not restricted by Section 91/92 in the same way a party to a contract would be.[12]

D. Document Challenged as Sham, Fraudulent, or Invalid

When the very existence, validity, or genuineness of the document is assailed (e.g., on grounds of fraud, sham, illegality, or that it was never intended to be operative), oral evidence is admissible. This is often facilitated by Proviso (1) to Section 92. In Gangabai v. Chhabubai, the Supreme Court affirmed that oral evidence could be adduced to show that a sale deed was a sham transaction, never intended to pass title.[5] Similar principles were applied in Ishwar Dass Jain, where a mortgage was alleged to be a sham,[3] and in Roop Kumar v. Mohan Thedani, where an agreement was contended to be a sham.[8]

E. Incomplete Documents or Transactions Evidenced by Multiple Documents

If a document does not, on its face, contain all the terms of the agreement, or if a transaction is evidenced by multiple interconnected documents, the situation may allow for further evidence.[14] In P. Veerasamy & Others v. V. Soundararajan, it was noted that if a transaction is contained in more than one document between the same parties, they must be read together. Section 92 would not bar reliance on a collateral agreement in writing that formed part of the same transaction.[15]

F. Statutory Exceptions within Section 91

Section 91 itself contains two exceptions:

  • Exception 1: When a public officer is required by law to be appointed in writing, and 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.[10]

Judicial Interpretation and Application: Further Case Law Insights

The judiciary has consistently applied Section 91 to uphold the integrity of written documents. The "best evidence rule" articulated in Duli Chand[9] and Sudesh Madhok[11] remains the guiding principle. The interplay with Section 92, especially its provisos, has been crucial in cases like Roop Kumar,[8] Gangabai,[5] and Ishwar Dass Jain,[3] allowing parties to challenge the genuineness or intended legal effect of documents. The rights of strangers to an instrument, as highlighted in Bai Hira Devi[7] and Tippu Mohammed,[12] demonstrate the contextual limits of the exclusionary rule.

The interaction with the Registration Act, 1908, particularly Section 49, is a recurring theme. Cases like K.B. Saha[1] and Ganpat Mal Dhariwal[19], [24] illustrate that while an unregistered (but compulsorily registrable) document cannot be used to prove the primary terms affecting immovable property, its utility for collateral purposes is recognized, albeit narrowly. The distinction between proving the "terms" of a contract versus its "factum" is critical, especially in loan transactions evidenced by promissory notes or mortgages, as seen in Nazir Khan,[16] Dhaneswar Sahu,[17] and Naresh Kumar.[27]

Challenges and Nuances

The application of Section 91 is not without its complexities. The distinction between proving the "terms" of a document (barred without the document) and the "factum" or "existence" of a transaction (which might be provable by other means) can be subtle and fact-dependent. The interplay with Section 49 of the Registration Act, 1908, and Section 35 of the Indian Stamp Act, 1899 (which renders improperly stamped instruments inadmissible for any purpose, subject to exceptions), adds further layers. An instrument inadmissible under the Stamp Act cannot be used even for collateral purposes, and this bar precedes the application of Section 91 or Section 49 of the Registration Act.[17], [25]

The question of whether consideration is a "term" of the contract for the purposes of Section 91/92 has also seen some discussion. While Proviso (1) to Section 92 allows proof of want or failure of consideration, and generally consideration is a vital term, some specific contexts might present nuances.[28] However, the prevailing view, as seen in Smt. Sunita Dhadda, is that sale consideration recorded in a registered sale deed is conclusive.[20]

Furthermore, certain documents, such as First Information Reports (FIRs) or seizure mahazars in criminal cases, are not contracts, grants, or dispositions of property between parties in the traditional sense. While general principles of evidence apply, the strictures of Section 91 and 92 regarding proof of "terms" and exclusion of oral evidence to vary them operate differently, as indicated in Tippu Mohammed.[12]

Conclusion

Section 91 of the Indian Evidence Act, 1872, serves as a critical bulwark in maintaining the certainty and reliability of documented transactions. By mandating the production of the document itself to prove its terms, the "best evidence rule" seeks to prevent ambiguity, deter perjury, and uphold the solemnity of written agreements and legally mandated records. While the rule is stringent, its interplay with Section 92, its provisos, various statutory exceptions, and a body of judicial interpretations has carved out necessary flexibilities to address issues of fraud, sham transactions, and the rights of third parties. The nuanced application of Section 91, particularly in conjunction with other laws like the Registration Act and the Stamp Act, underscores its significance and complexity in the Indian legal system, demanding careful consideration by legal practitioners and the judiciary alike.

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