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Published: Fri, 02 Feb 2018



Abdul Kadir v. Noor Mohammed Sait and Ors., AIR 1959 Ker 400.

Afar Alias Godai Morol v. Surja Kumar Ghose, 7 Ind Cas 842.

Anant Shamrao and Anr. v. Nensukh Bherulal Kucheriya, AIR 1956 Bom 252.

Angamuthu v. 1. R.Radhakrishnan, 2. M.Gajalakshmi, S.A.No.364 of 2003.

Bai Hira Devi and Ors. v. The Official Assignee of Bombay, AIR 1958 SC 448.

Bhawanbai Premabhai v. Bai Vahali, (1955) 57 BOMLR 250.

Ganpat Rao v. Bapu, [1920] 41 Bom. 710.

Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761.

Ram Jatan v. Chandra Bali and Anr., AIR 1960 All 746.

Sidramappa Basappa Atnure v. Bipinchand Fulchand Gandhi, (1976) 78 BOMLR 309.


The Indian Evidence Act, 1872.


This research paper is mainly concerned with discussing the best evidence rule in the context of Sections 91 and 92 of the Indian Evidence Act, 1872, [1] after tracing a transition of the rule since when it was formulated to what the rule endorses in the present context. A comparison of the Indian law and Common Law is also provided briefly. The association of Section 92 with Section 91 is sketched and the important conditions to be fulfilled for a transaction between parties to fall within this realm are outlined. The paper deals with one facet of oral evidence being excluded by documentary evidence and another of the exceptions to such a rule provided as provisos to Section 92, with judicial decisions to substantiate corresponding points.


An ancient established doctrine of the law of evidence, the Best Evidence Rule specifies that the best evidence existing in a particular case and available, according to what the circumstances would allow or the party will be able to produce, ought to be produced. [2] Primary evidence (usually the original document in the contract) should be compulsorily produced in front of the court, [3] to prove its contents, but for other inevitable reasons like it being misplaced, etc. [4] During the formation of a contract, the presence of several concerns like defectiveness of human memory, ignorance of witnesses and the influence of prejudice necessitates the presence of a universal rule which states that the best evidence in every case ought to be made available to the court. [5] A brilliant illustration would be that oral statements of the physical condition of an object would not be permitted to be produced in court when the object itself can be brought as evidence. [6] 

The Best Evidence rule, [7] often called a “cardinal principle” [8] of the Indian Evidence Act requires proving by introducing an original document, and when the best possible evidence is not adduced, it throws suspicion on the case and decreases the reliability of belief on any other evidence that may be produced. [9] Best evidence in case of documentary evidence is the original copy of the document and oral evidence requires the witness to state as evidence only something perceived by that person directly. [10] The production of greatest amount of evidence is not required, but the rule is designed such that it prevents the introduction of evidence which assumes that the party possesses the better evidence. The object of the rule is to mainly prevent fraud and aid in the administration of justice. [11] 

However, there have been several views against the Best Evidence Rule, [12] stating the need for a Secondary Evidence Rule allowing secondary evidence admissible to prove the contents of a document. [13] The claim is that the Best Evidence Rule is unnecessary in a situation of broad pre-trial discovery due to swift technological developments in electronic communications, because the object of the rule was to guard a party from any kind of fraud and prevent misinterpretation of documents, which is highly possible due to pre-trial discoveries. [14] 

The concept of Best Evidence can be seen as being embedded in the Indian Evidence Act, 1872 [15] and as per Section 91, the original document is given prime importance as an element of Best Evidence.


Section 91 [16] states that when the terms of a contract have been written down due to an agreement of parties, and in cases where the law needs some contracts to be set in writing, it would be an official record of the transaction. [17] The first part of Section 91 deals with transactions voluntarily reduced to writing, while the next part refers to contracts which are required under law to be written down as a document. This section states that oral evidence should be excluded form superseding a written contract, thus following Best Evidence rule because it is important in the administration of justice. [18] 

The subject under Section 91 is of principle because instruments are attributed a high level of reliability when compared to parol evidence, and also a matter of policy because it would not be correct if parties’ rights are affected by “loose collateral evidence”. [19] The fundamental principle involved here is that any evidence wrongfully affecting interests of a party is not to be entertained by the court of law in the interests of justice. However, there are two exceptions provided under Section 91, in cases of public officers to be appointed in writing and the officer has acted in that manner, then the writing may not be proved, [20] as well as in the case of wills where if admitted to probate in India can be proved using the probate only. [21] 

This section applies when the entire contract is in writing and no oral evidence is accepted pertaining to the written agreement as such. However, if only a part of the contract exists in writing, then nothing prevents oral evidence being passed in case of the unwritten elements of the contract. Also, if there has been absolutely no contract between the parties, then oral evidence would be the best evidence available. Thus, in a transition from a no-contract scenario to a situation with a contract, there is a co-ordinated shift towards documents acting as the best evidence.

Also, Section 91 does not specify which element of the rule it endorses- whether the best evidence in the case should be produced or the best available evidence should be produced, [22] but since practicality supports the latter view, it is convenient to follow the same. An extension of the Best Evidence Rule applied in Section 91 can be seen in the form of Section 92, where exceptions to the exclusivity of documentary evidence are enumerated.


Section 92 [23] extends to stating that oral evidence is not admissible to contradict or vary terms of a contract which is strictly required by law to be in a written form. [24] Section 92 deals with the ‘Exclusion of evidence or oral agreement’ and states that when the terms of any contract, grant or nature of property or any matter in the form of a document have been proved as per Section 91, no statement about a subsequent oral contract should be admitted to contradict or vary the document. [25] When a contract has been reduced to writing, then the written document would be most accurate proof representing the intention of the parties, but there are certain conditions mentioned as exceptions in the form of provisos to Section 92.

Proviso (1) [26] deals with a fact to be proved, which would nullify a document due to fraud, intimidation, no due execution, illegality, incapacity of party, absence of consideration, or a mistake in fact or law. Thus, this proviso deals with the agreements whose legality has been impeached. For instance, a person cannot repudiate the onus of a lease contract and then claim benefits out of the same. [27] It is a submission that the rationale behind this exception is the fact that when the contract is seen as fundamental to the transaction and the rights of the parties depend on it, there ought to be room for the possibility of it being invalid and the source of such a statement being in the form of oral evidence after the document has been written, it ought to be admitted as valid evidence in the court of law.

In Angamuthu v. 1. R.Radhakrishnan, 2. M.Gajalakshmi, [28] the plaintiff and defendants contracted for sale of property, but the defendants began trying to alienate the property. So the plaintiff prayed that he cannot file the suit for specific performance, while the defendant stated that there is no privity of contract and disputed the genuineness of documents. He stated that under Section 92, there is no scope to permit contradictions. The appellant contended that the whole evidence was to demonstrate that despite documents, the parties had a different contract altogether and it was never intended to be made. By virtue of Section 91, the terms of the document should be read without referring to any other oral evidence and the agreement was to be considered on its face value as to whether it was intended to be acted upon. Section 92(1) states that it was alright for a party to contend through oral evidence that the contract was not intended to be acted upon, but cannot merely seek to contradict terms of the contract. Therefore, under Section 92, oral evidence would be valid only if the contract is contradicted and not if the parties contend had a wholly different contract. [29] 

Proviso (2) [30] speaks of the presence of oral agreements on issues which the document is silent, in consistent with its terms which can be proved. It is under this proviso that oral evidence is admissible with respect to issues which the document does not specifically state, but the evidence adduced cannot be inconsistent with the written agreement. For example, if a promissory note is silent with regard to the interest to be paid, an oral statement giving evidence about the payment of evidence cannot be admissible in a court of law. [31] The general rule is: When the terms of a contract were intended to be written down, oral evidence should not be permitted. It is a submission that the rationale behind this exception added can be the fact that there may arise circumstances pertaining to a contractual relationship which may not be contemplated by the parties during the formation of the contract and thus sometimes there is a need to go beyond plainly the written contract. However, this may give rise to a slipping slope case where it would be difficult to stop such subsequent oral evidence at a certain point. [32] 

In Anant Shamrao and Anr. v. Nensukh Bherulal Kucheriya, [33] the plaintiff contended that a certain land belonged to the second defendant who divided it into plots and wanted to sell them through the first defendant by means of a power of attorney. The plaintiff bought certain plots of land and was given a printed form with the signature of the first defendant stating that permission for conversion of land to building sites was to be received shortly. He signed the documents, but permission was not received by the time of completion of the sale. When the date of the sale was extended, defendant conveyed information about grant of permission and then the plaintiff paid for the stamp paper when he was informed that the plots were described in the agreement as agricultural plots. The plaintiff objected during the registration of the deed and filed a suit for recovery of the amount paid by him along with a specific interest, against the first defendant who took money from him and against the second defendant who was the principal. [34] The court stated that nothing in Section 92 makes the oral representation inadmissible as evidence. The appellate Judge considered Provisos 2 and 6 of Section 92, Evidence Act, as circumstances where evidence contradicting documents can be admitted. The court held that representation made by the first defendant cannot be considered as a term of the contract and thus oral evidence of representation cannot be excluded. The appeal was dismissed.

Proviso (3) [35] is concerned with the existence of a separate oral agreement with a condition precedent with respect to the relationship between the parties through the contract. A condition precedent is where, without the happening of a certain event, no obligation arises. For example, if two persons agree that a contract is initiated only when a third party approves, any party can prove the condition precedent and that he has not approved. Thus only oral evidence to show that there was such condition precedent is allowed and nothing else to vary the contract or its other terms. [36] A parallel can be drawn to Section 144 of the Contract Act stating that in cases of a person giving a guarantee in a contract that the creditor should not act upon it till another has acted as co-surety. In case of the person not becoming a co-surety, the guarantee would be void. Thus, the agreement where the person would be under no obligation until a co-surety joined in the guarantee may be proved.

However, a restriction still exists in the fact that when a subsequent agreement is present with a condition precedent, evidence of it should be in accordance with the original contract and should enforce its terms. In Ram Jatan v. Chandra Bali and Anr., [37] a demand pro-note was executed wherein the defendants alleged that as security to an advance and the execution of the pro-note, there was an agreement that payment would be upon demand, but would be liquidated out of the profits of some specific property. The applicant claims that oral evidence of the collateral agreement was not to be permitted because, if admitted, the fundamental terms of the pro-note would be varied. Under Section 92, except under Proviso (3), no oral evidence changing the terms of a written contract can be admissible. Proviso (3) assumes that the contract itself stays intact and in case the evidence invalidates the instrument, the proviso cannot be applied. [38] But in this case, the subsequent agreement was in enforcement of the pro-note for immediate payment. There was nothing to prevent the demanding of payment under the pro-note and subsequently agreeing to get payment in some other method. Therefore, evidence showing the discharging of a pro-note can be admissible, as compared to showing that under a collateral agreement which is inadmissible, and the suit was dismissed.

Proviso (4) [39] deals with the presence of a separate oral agreement with a condition precedent relating to an obligation created by the contract, which can be proved unless the contract has been required by law to be in writing or is registered. The original contract when written or registered, the only method of proving amendment of the actual contract is by like formality and not by adducing oral evidence. [40] Thus, even if such an oral agreement has to be admitted, the subsequent agreement should be in conformity with the written document, or should contain conditions to enforce the prior one, so that both can be harmonised.

In Abdul Kadir v. Noor Mohammed Sait and Ors., [41] a suit was filed for recovery of land based on a Coolicharth which was executed by the defendant in favour of the plaintiff for payment of Rs. 120 yearly at the rate of 10% as rent for a site. The defendant stated that he would dismantle the Ghappura built on the site earlier and give vacant possession, when on demand. The issues considered by the court were whether the Coolicharth is admissible as evidence, and whether the landlord (plaintiff) can recover enhanced rent based on an oral agreement between the parties after signing the Coolicharth. [42] However, Proviso 4 exempts express subsequent oral agreements when changed except in where the contract needs to be registered or present in writing, which was not the case with the Coolicharth and thus this contention was rejected.

Proviso (5) [43] states of any custom or usage using which matters not mentioned in the contract can be proved when the evidence, only if consistent with the contract, is adduced. In other words, evidence giving explanation or adding an incident can be permitted only when it does not data inconsistent with the written contract. For example, if by general usage, credit for a month has been given to the buyer, such custom can be used to prove that the buyer is rightfully entitled to the credit. [44] The rationale behind this exception would be that, since a custom or tradition already exists in business, the parties may have omitted to specify the obvious in their document, impliedly assuming those principles. This would not imply that the contract is not based on such customs; if it would not have been, then it would have specifically excluded them. Further, this custom, if in conformity with the contract, would be useful to prove the rights of a party if they have not been explicitly enumerated.

Proviso (6) [45] states that any fact showing the manner of relation of language of the written contract and the facts of the case can be proved. The defectiveness of a document, latent ambiguity [46] and making distinct the intention of the executant necessitate the allowing of oral evidence by also looking at circumstantial considerations. But in Ganpat Rao v. Bapu, [47] it was stated that if surrounding circumstances have to be considered to gauge the intention of the parties, it would not be different from that expressed in the contract itself and hence only in cases of the document being ambiguous should extrinsic evidence be permitted. [48] An opportunity being given to the parties to correct ambiguity in their written document by making its terms clear through oral statements may be the rationale behind this exception.

In Afar Alias Godai Morol v. Surja Kumar Ghose, [49] tenancy was created by a lease contract to pay a certain sum every year for a piece of land in cash and in kind. The plaintiffs sued to recover rent for two years at the market rate of paddy, while the defendants claimed that they were to pay paddy at the rate mentioned in contract. The defendants appeal that the judgment of the District Judge is faulty as he permitted the plaintiffs to prove an amendment to the contract by oral evidence according to Section 92 of the Indian Evidence Act. [50] The court stated that oral evidence was not admissible because it subsequently modifies the rights of parties which are otherwise expressly mentioned in the contract. If the evidence had to be valued, the instrument being amended was the solution, and plaintiffs were constrained to argue Proviso 6 to Section 92, where any fact can be proved to show in what way the language used in a document is related to facts. Hence, the allowing of parol evidence by an oral agreement to contradict a contract cannot be permitted.

However, if there exists no inconsistency in interpretation, outside the purview of the six provisos under Section 92, the document should be construed prima facie. The restriction in Section 92 refers to the different terms being used, not applicable in proving that the contract was different from that it purported to be. The oral evidence in this case should help to prove intention and be admissible to prove the real contract. [51] However, this section would apply only to parties of a specific contract in question [52] and thus, in situations where a dispute is between an aggrieved third person and a party to the contract, then Section 92 would not apply and oral evidence can be adduced even despite a written contract. [53] 


The association of Section 92 with Section 91 was established in the case of Bai Hira Devi and Ors. v. The Official Assignee of Bombay, [54] where some creditors of Daulatram filed a petition for an order to adjudge Daulatram insolvent due to his notice of suspension of debt payments, which was passed. A gift deed was executed by the insolvent in favour of his wife and three sons and they contended that, although it was a gift, it was actually a transaction with valuable consideration. [55] The issue was whether the appellants were entitled to lead oral evidence to show the real nature of the contract. [56] 

The court stated that Section 91 prohibits the admission of oral evidence to prove the subject of a document, but in this case, the subject of the document was proved by its production itself and hence it cannot be covered under Section 91 or Section 92. Thus, Section 92 is not applicable to the case and thus the appellants could lead oral evidence. The concepts dealt with and differences between Sections 91 and 92 were brought out by the court as under:

Section 92 excludes oral evidence in cases where the terms of s are being proved by producing appropriate documents under Section 91.

Since Sections 91 and 92 are supplementary to each other, the former would be incomplete without the latter and the latter would be inoperative without the former.

Section 92 excludes oral evidence for “contradicting, varying, adding to or subtracting from” the information of a document proved under Section 91 and thus can be said to decide the conclusive nature of the contents. This can act as substantiating the Best Evidence rule.

However, Section 91 applies to all documents, irrespective of whether they seek to dispose of rights, while Section 92 pertains to dispositive documents, the former to both bilateral and unilateral documents, but Section 92 is limited only to bilateral documents.

Section 91 has universal application and can be sought by persons other than the executants of the documents as well, while Section 92 can be applied only between the parties to the contract or their representatives. But, persons other than parties to the document are not prevented from providing extrinsic evidence to contradict or vary the terms of the agreement.

However, there are certain conditions to be fulfilled before the application of these sections, or for the sections to be satisfactorily applied, which are dealt with subsequently.


One necessary pre-requisite for the application of Sections 91 and 92 is the presence of a contract between the two transacting parties and when this is absent, the provisions lose significance. This was witnessed in Bhawanbai Premabhai v. Bai Vahali, [57] where the appellant stated that oral evidence was not admissible to prove that a sale agreement was just a nominal transaction as it was benami transaction. Neither Section 91 nor 92 can be applied unless a contract exists prima facie, and when evidence under Sections 91 and 92 has to be excluded, the evidence intending to show no contract should not offend the provisions. The High Court declared that the defendants were precluded by Section 92 from adducing oral evidence that it intended by the party executing it to be a gift deed, which was not accepted. The court held that even if the defendants were permitted to provide evidence that the intention was to make a gift, it must be such that there is no animus contrahendi and thus, no contract.


Oral evidence can be permitted even in the presence of documentary evidence when it states that the transaction mentioned in the written deed was not the transaction between the parties in reality. Section 92 does not restrict an attempt of a party to prove that the actual transaction in a suit was different from that in the document or documents in suit purport to show. This can be done by showing the circumstances and studying the document, as well as leading the oral evidence to prove the actual nature of the transaction. [58] 

In the case of Sidramappa Basappa Atnure v. Bipinchand Fulchand Gandhi, [59] the issue was whether notwithstanding Sections 91 and 92 of the Indian Evidence Act, a party can be allowed to show that the contract in the document is not the real contract and that the transaction was different. The defendant Sidaramappa had a business of hiring out bicycles and furniture and required additional finance for which he got an advertisement printed in a newspaper. A trader (plaintiff) agreed to advance to him a loan, and a mortgage-deed of bicycles and furniture was signed. The market value of the goods was Rs. 10,000 and such security was paid for five years. The defendant executed another document as a rent-note by which Sidaramappa hired the property from Bipinchand. Subsequently in time, the defendant fell in arrears and failed to pay the rent. [60] The court declared that oral evidence should be brought on record and submissions about the real nature of the transactions should be considered. In this case, there was more than sufficient oral evidence recorded, i.e. surrounding circumstances and specifics relating to the document, to show that the rent-note was executed for the loan. [61] 


Although the presence of an existing written agreement is attached utmost significance if it acts as evidence due to the principle of Best Evid

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