Section 92 of the Indian Evidence Act, 1872: Scope, Exceptions, and Contemporary Judicial Trends

Section 92 of the Indian Evidence Act, 1872: Scope, Exceptions, and Contemporary Judicial Trends

Introduction

Documentary certainty occupies a central position in Indian evidentiary jurisprudence. Section 91 of the Indian Evidence Act, 1872 embodies the “best-evidence” rule by insisting that a written instrument must be proved by the document itself. Section 92 proceeds further by excluding oral evidence that contradicts, varies, adds to, or subtracts from the terms of such an instrument once its existence is proved. At the same time, six provisos temper this exclusion to prevent formalism from defeating substantive justice. Indian courts have repeatedly been called upon to delineate the delicate boundary between the rule and its exceptions. This article critically analyses the contemporary doctrinal landscape, drawing upon leading authorities such as Gangabai v. Chhabubai[1], Bai Hira Devi v. Official Assignee of Bombay[2], and Roop Kumar v. Mohan Thedani[3].

Statutory Framework

Section 92 provides that, where the terms of a dispositive bilateral instrument have been proved, “no evidence of any oral agreement or statement shall be admitted … for the purpose of contradicting, varying, adding to, or subtracting from its terms,” as between the parties or their representatives in interest. Six provisos (illustrative, not exhaustive) carve out exceptions relating to invalidating circumstances, collateral agreements, conditions precedent, subsequent oral variations, customs of trade, and interpretation through surrounding circumstances. Section 99 expressly saves the right of strangers to the instrument to adduce such oral evidence. A comparative glimpse is provided in the table below.

  • Section 91 – Applies to all documents (unilateral or bilateral); governs the mode of proof.
  • Section 92 – Applies only to bilateral dispositive instruments; governs the admissibility of oral evidence inter partes.
  • Section 99 – Declares that persons who are not parties or representatives may always lead oral evidence.

Purpose and Policy Objectives

The policy rationale behind Section 92 is threefold: (i) to promote certainty and finality in written bargains; (ii) to discourage perjury by foreclosing facile oral denials of documentary terms; and (iii) to give primacy to deliberate, written intention over informal, subsequent recollection. Yet courts have recognised that absolute exclusion may lend itself to fraud or oppression. The provisos therefore operate as “safety-valves” preserving equitable defences and reflecting the broader equitable jurisdiction recognised in Indian contract law and property jurisprudence.

Scope of the Exclusionary Rule

Parties Bound by the Section

In Bai Hira Devi, the Supreme Court clarified that Section 92 binds only the parties to the instrument or their privies. The Official Assignee, acting for creditors in insolvency, was held to be a stranger; consequently, oral evidence impeaching the deed of gift was admissible[2]. Similarly, Section 99 empowers unrelated third parties, including statutory authorities or subsequent purchasers, to contest or explain the document’s terms by extrinsic evidence.

Nature of Documents Covered

Only bilateral dispositive instruments—e.g., sale deeds, mortgages, leases, partnership deeds—fall within Section 92. Unilateral declarations (such as wills) and non-dispositive writings (such as mere receipts) are outside its purview. Courts have also emphasised that recital of consideration constitutes a term of the contract and is therefore protected by the exclusionary rule[15], subject to the first proviso.

Judicial Construction of the Six Provisos

Proviso (1): Invalidating Circumstances and “Sham” Transactions

The most frequently invoked proviso allows oral evidence of any fact that would invalidate the instrument—fraud, want of consideration, or absence of intention. In Gangabai, the Supreme Court permitted the plaintiff to show that an ostensible sale deed was a money-lending security and never meant to convey title; Section 92 did not bar such evidence because it was directed at nullifying the deed, not varying its terms[1]. Roop Kumar similarly accepted oral evidence that an “agency-cum-licence” was not a lease, reinforcing the principle that courts may look behind form to substance where sham or camouflage is alleged[3].

Proviso (2): Collateral Oral Agreements on Matters the Document is Silent About

Where a document is silent, parties may prove a separate oral agreement if it is not inconsistent with the writing. The Andhra Pradesh High Court in Sait Bolumal Dharmdas Firm[12] used this proviso to receive evidence that an apparent sale deed was intended as security, the document being silent on the nature of consideration beyond the price.

Proviso (3): Oral Conditions Precedent

Although rarely litigated, this proviso admits evidence of a condition that must occur before the document can operate. In practice, courts subsume such arguments under the broader first proviso on intention.

Proviso (4): Subsequent Oral Rescission or Modification

Courts have endorsed proof of later oral agreements unless the law requires such variation to be in writing or registration. In Ramachandran v. Theva Nesom Ammal[7] the Madras High Court upheld evidence of an oral novation modifying an earlier deed, noting that the statute did not mandate registration of such ancillary arrangement.

Proviso (5): Usage of Trade

Trade customs may evidence terms incident to a contract. Modern commercial litigation rarely invokes this proviso, yet its relevance persists in sectors governed by mercantile usages (e.g., commodity futures).

Proviso (6): Relationship of Language to Existing Facts

Proviso (6) operates as an interpretive aid, allowing extrinsic evidence to elucidate the application of ambiguous language to existing facts. The Bombay High Court in The Belapur Company[16] held that surrounding statutory notifications regarding sugarcane pricing were admissible to construe an incomplete price term. The Privy Council’s seminal decision in Balkishen Das v. Legge affirmed that evidence of circumstances may be received to discern whether a transaction labelled a “sale” was in substance a mortgage, thereby illustrating the proviso’s equitable dimension.

Third-Party Challenges and Representative Proceedings

The demarcation between parties and strangers has critical procedural consequences. When the Official Assignee, liquidator, or creditor challenges a debtor’s conveyance, he is not estopped by Section 92, as underscored in Bai Hira Devi. Conversely, co-owners or legal heirs, being representatives in interest, remain bound by the exclusionary rule. Recent real-estate disputes before adjudicatory fora such as RERA reaffirm that Section 92 is triggered only inter partes; purchasers may impeach a developer’s earlier agreements without restraint[11].

Interface with Presumptions under Section 114

While Section 92 curtails oral evidence, statutory presumptions may still operate. Tulsa v. Durghatiya illustrates that continuous co-habitation raises a presumption of valid marriage under Section 114, which can supplement documentary proof rather than contradict it[4]. Courts therefore harmonise Section 92 with other evidentiary rules instead of applying it mechanically.

Doctrinal Trends and Emerging Challenges

  • Digital Instruments: With the Information Technology Act, 2000 recognising electronic records, questions arise whether metadata or electronic signatures constitute “oral” or “documentary” evidence for Section 92 purposes.
  • Standard-Form Contracts: Judicial scepticism towards unequal bargaining has prompted a flexible application of proviso (1) to prevent adhesion contracts from stifling defences of misrepresentation or mistake.
  • Arbitration: Arbitrators, unbound by strict evidentiary rules, often admit oral testimony notwithstanding Section 92, raising enforcement questions under Section 34 of the Arbitration and Conciliation Act, 1996.

Conclusion

Section 92 strikes a pragmatic compromise between the sanctity of written agreements and the equitable imperative to prevent injustice. The Supreme Court’s jurisprudence—from Gangabai to Roop Kumar—demonstrates a consistent readiness to pierce the veil of formal documentation where fraud, sham, or collateral intention is credibly pleaded, while steadfastly preserving documentary finality in ordinary commercial dealings. Future courts must continue to calibrate this balance, especially in the digital age, ensuring that the exclusionary rule does not become an instrument of oppression, yet remains a bulwark against the uncertainty of oral testimony.

Footnotes

  1. Gangabai v. Chhabubai, (1982) 1 SCC 4 (SC).
  2. Bai Hira Devi & Others v. Official Assignee of Bombay, AIR 1958 SC 448.
  3. Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595.
  4. Tulsa & Others v. Durghatiya & Others, (2008) 4 SCC 520.
  5. Om Prakash v. IOCL Officers’ Welfare Society, 2019 (Delhi HC).
  6. Ramachandran v. Y. Theva Nesom Ammal, 2003 (1) MLJ 118 (Madras HC).
  7. Heirs of Jatashanker v. Heirs of Mavji Trikam, AIR 1968 Guj 184.
  8. Sait Bolumal Dharmdas Firm v. G. Venkatachelapathi Rao, AIR 1959 AP 612.
  9. Food Corporation of India v. Mahipal & Sons, 1985 (129) Raj HC.
  10. K.S. Narasimhachari v. Indo-Commercial Bank Ltd., 1964 SCC OnLine Mad 91.
  11. Nikita P. Patel v. Darpan Hareshkumar Shah, 2022 (RERA Gujarat).
  12. The Belapur Co. Ltd. v. Maharashtra State Farming Corporation, AIR 1969 Bom 231.