Is oral evidence barred if there is documentary evidence about the same fact?

(1) When the terms of (a) a contract, (b) a grant, (c) any other disposition of a property, have been reduced to the form of a document; or

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(2) When the terms of any matter required by law to be reduced to the form of a document,

Have been proved by the production of the document or by giving secondary evidence of its contents,—

No evidence of any oral agreement or statement can be admitted, as between the parties to any instrument or their representatives in interest, for the purpose of (i) contradicting, (ii) varying, (iii) adding to, (iv) subtracting from, its terms.

Illustration

(a) A policy of insurance is effected on goods “in ships from Calcutta to London.” The goods are shipped on a particular ship which is lost. The fact that the particular ship was orally excepted from the policy cannot be proved.

(b) A agrees absolutely in writing to pay В Rs. 1,000 on the first March 1873. The fact that, at the same time, an oral agreement was made that the money should not be paid till the thirty-first March, cannot be proved.

(c) An estate called “the Rampur Tea Estate” is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed, cannot be proved: S. 92.

Problem:

A deed of gift is executed by D in favour of his wife and sons. Within a year thereafter, D is adjudicated insolvent on a petition by some of his creditors, and his estate vests in the Official Assignee under the provisions of the Presidency-tonns insolvency Act.

The Official Assignee takes out a notice of motion against D’s wife and sons, for a declaration that the deed of gift executed in their favour by D was void. At the hearing of the notice of motion, D’s wife and sons want to lead oral evidence to show that though the document purported to be a gift, it was really a transaction supported by valuable consideration. Can they lead such oral evidence? Give reasons.

Ans:

Yes. The donees can lead oral evidence to show that the gift was really a transaction for consideration, as the Official Assignee is not a representative of the insolvent. The rule of excluding oral evidence under section 92 is applicable only as between parties to an instrument or their representatives in interest. Strangers to the documents are outside the scope of section 92.

Therefore, the contents of documents can be varied or contradicted by oral evidence against the Official Assignee, who is neither a party to the document nor a representative of the party to the document. (Bai Hira v. Official Assignee, A.I.R. 1958 S.C. 448)

As seen above, under section 91, when the terms of any transa­ction have been reduced to the form of a document, they must be proved by the production of the document itself, the reason being that admission of extrinsic evidence would be equivalent to permission to substitute another contract by introduction of terms which are not to be found in the document.

The rule embodied in sec. 92 is a logical sequence to the rule in S. 91, and may properly be said to be a part of it. If the intention is that no substitution of the terms of a voluntary and a deliberate transaction should be allowed, it follows that no variation to the terms should also be allowed. This section, therefore, enacts that when the terms and conditions of a transaction have been reduced to writing, either by agreement of parties or by requirement of law, no oral evidence can be admitted to contradict, vary, add to, or subtract from its terms.

Under this rule, extrinsic parole (i.e. oral) evidence controlling, varying, adding to, or subtracting from, the terms of solemn written instrument is inadmissible. Since the parties have made a complete memorial of their agreement, it must be presumed that they have put into writing all that they considered necessary to give full expression to their meaning and intention. Moreover, the reception of oral testimony could create mischief and open the doors to fraud.

S. 92 does not exclude oral evidence of an oral agreement which contradicts or varies, not the terms of the contract, but some recitals in the contract itself (Mukhi v. Kishun). Thus, when a lease was taken on behalf of a joint family, but only one member’s name appeared in the deed, it was held that S. 92 is no bar to the other members asserting their rights, by showing that the lease was taken on behalf of the joint family.