When the terms of a contract or of a grantor of any other disposition of property have been reduced to the form of a document, and when any matter is required by law to be reduced to the form of a document, —
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No evidence can be given in proof of the terms of such contract, grant, etc., except—
ADVERTISEMENTS:
(i) The document itself, or
(ii) Secondary evidence of its contents, in case in which secondary evidence is admissible. (Section 91)
Exception 1:
When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
ADVERTISEMENTS:
Exception 2:
Wills admitted to probate in India may be proved by the probate.
Probate means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator. Probate of a will is evidence of the contents of the will against all the parties interested there under. Probate is secondary evidence, but it is made admissible by this section.
Explanation 1:
ADVERTISEMENTS:
This section applies equally to cases in which the contracts, grants or dispositions of property referred to, are contained in one document and to cases which they are contained in more documents than one.
Thus, if a contract is contained in several letters, all the letters in which it is contained must be proved. So also, if a contract is contained in a bill of exchange, the bill of exchange must be proved.
Explanation 2:
Where there are more originals than one, one original only need be proved.
Thus, if a bill of exchange has three originals, one only need be proved.
Explanation 3:
The statement, in any documents whatever, of a fact other than the facts referred to in this section, does not preclude the admission of oral evidence as to the same fact. (S. 91)
Illustration:
(a) If a contract is contained in several letters, all the letters in which it is contained must be proved.
(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
(d) A contracts in writing with В, for a delivery of indigo upon certain terms. The contract mentions the fact that В had paid A the price of other indigo contracted for verbally on another occasion.
Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.
(e) A gives В receipt for money paid by B.
Oral evidence is offered of the payment.
The evidence is admissible.
Scope of Section 91:
When a transaction has been reduced to writing, either by agreement of the parties or by requirement of law, the writing becomes the exclusive memorial thereof, and no evidence can be given to prove the transaction, except the document itself, or secondary evidence of its contents, where such secondary evidence is admissible.
This rule is based on the principle that the best evidence, of which the case in its nature is susceptible, should always be presented. The rule does not demand the greatest amount of evidence which can be possibly given of any fact, but its aim is to prevent the introduction of any evidence which, from the nature of the case, supposes that better evidence is withheld. In such cases, it is only fair to presume that the party has some sinister motive for not producing it, and that, if produced, his design would be frustrated.
It is a well-established rule of law that whenever written instruments are involved, any other evidence is excluded from being used, either as a substitute for such instrument or to contradict such instrument.
As rightly remarked, this is a matter both of principle and of policy- because it would be attended with great danger, if a written document was allowed to be impeached by collateral evidence.
Summary of Section 91:
(1) When the terms of (a) a contract, (b) a grant or (c) any disposition of property, have been reduced to the form of a document; and
(2) Where any matter is required by law to be reduced to the form of document,—
Then (a) the document itself, or (b) secondary evidence of its contents, must be put in evidence.
The first provision refers to a transaction voluntarily reduced to writing. The second refers to those cases in which any matter is required by law to be reduced to the form of a document, e. g., sale of immovable property of the value of one hundred rupees or more, a lease of immovable property, etc.
There are two exceptions to these provisions:
1. When a public officer is required by law to be appointed in writing and any officer has acted as such, the writing need not be proved.
(This exception is based on the presumption that when a person acts in an official capacity, it is presumed that he was duly appointed.)
2. Wills admitted to probate in India may be proved by the probate. (A probate, it must be remembered, is the only proof of a will. It is for this reason that it is considered to be primary evidence.)