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THEORY:


Character Evidence [sections 52-55]

Secs. 52-55 of the Indian Evidence Act, 1872 deal with character evidence. The wordcharacter thus includes both reputation and disposition. Explanation at the end of these sections and which is common to them provides that for the purpose of all these sections, character includes both reputation and disposition.

‘Reputation’ means what is thought of a person by others, and is constituted by public opinion. ‘Disposition’ respects the whole frame and texture of the mind. It comprehends the springs and the motives of actions. ‘Temper’ influences the action of the moment,‘disposition is permanent and settled; ‘temper’ may be transitory and fluctuating. It is possible and not infrequent to have a good disposition with a bad temper and vice versa.

The explanation further provides that except as provided in sec. 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown.

Thus, evidence of reputation or disposition must be confined to the particular traits which the issue is concerned about. Therefore, it would be useless to offer the evidence of a party’s reputation for honesty where the fact in issue is cruelty, or of his mild disposition where the fact in issue is fraud. Reputation for honesty would be relevant on an issue of fraud, and a merciful disposition on an issue of cruelty.

Character is not relevant in both civil and criminal cases. However, where character itself is a fact in issue or a relevant fact, evidence of character is admissible. Also, in some other exceptional cases character evidence may become admissible.

Character Evidence in Civil Cases

In Respect of the character of a party, cases may be divided into the following two categories:

1. The cases in which character of the party is in issue 2. The cases in which the character of party is not in issue.

When the general character of a party is in issue, naturally, the character of the party is relevant. Thus for example, in a suit for defamation where the alleged defamatory statement is regarding the character of the plaintiff, the plaintiffs character is at issue and therefore, evidence of plaintiffs’ character is relevant.

But where general character of the party is not in issue, but is tendered in support of some other issue, as a general rule, in civil cases evidence of character of any party to the suit is excluded. Therefore, sec.52 of the Indian Evidence Act declares that in civil proceedings, evidence of character of a party to prove conduct imputed to him is irrelevant, except in so far as such character appears from facts otherwise relevant.

This general exception is based upon grounds of public policy and fairness, because its admission would surprise and prejudice the parties by taking up their whole careers which they could not possibly come into court preferred to defend.

The Supreme Court has pointed out that the business of the courts is to try the cases and not the persons. A very bad man may have a very righteous cause.

Sec. 52 refers to character of parties to the suit and not the character of witnesses. Therefore, character of witness may be relevant under sec. 155 to impeach the credit of the witness.

Further, sec. 52 excludes evidence of character from being given only when the purpose of such evidence is to render probable or improbable any conduct imputed to the party. But when the facts which are relevant otherwise than for the purpose of showing character are proved, those facts raise inferences conserving the character of the party to the suit, such facts become relevant not only to prove the facts for which they are directly tendered, but also for the purpose of showing the character of the party concerned.

However, sec. 55 is an exception to this rule under sec. 52. The evidence of character of the plaintiff for the purpose of determining the quantum of damages awardable to him is admissible in civil proceedings.

In civil cases, good character of the plaintiff is presumed. Therefore, good character of the plaintiff may not be proved in aggravation of damages. But bad character is admissible in mitigation of damages provided that it would not, if pleaded, amount to a justification. The argument in favour of considering reputation is that a person should not be paid for the loss of that which he never had.

Character Evidence in Criminal Cases

Secs. 53 and 54 of the Indian Evidence Act, 1872 cover the relevancy of character evidence in criminal cases.

Sec. 53 provides that in criminal proceedings the fact that the person accused is a good character is relevant.

Sec. 54 provides that in criminal proceedings the fact that the accused person has a bad character is not relevant. But if the defence has given evidence to show that he has a good character, evidence of his bad character becomes relevant.

Explanation 1 to sec. 54 provides that bad character of the accused is always relevant in the cases in which his bad character itself a fact in issue.

Explanation 2 to sec. 54 provides that a previous conviction is relevant as evidence of bad character.

One of the basic rules of criminal evidence is that the guilt of the accused must be proven beyond all reasonable doubt. That the accused is of good character creates a doubt in the mind of the Court about the commission of the offence by the accused. Therefore, in criminal proceedings, the fact that the accused is of a good character, is relevant. To prove the good character of the accused, what must be proved is his general reputation in the community, and not particular good acts by him.

In criminal cases the accused previous bad character is irrelevant. The court is not concerned with his general character. What it is to be proved is the charge in that particular case. The prosecution cannot take the help of bad character of the accused in order to establish its case. Otherwise it would prejudice the minds of the court and there is a possibility that the court may become biased against the accused. Court may come to the conclusion that he has committed the offence in question. Therefore, this would prejudice the fair trial to which the accused is entitled.

Exceptions:

1. The previous bad character is relevant in reply, if the evidence has been given that he has good character. The prosecution can bring the evidence to prove the bad character of the accused.

2. The evidence of bad character can be proved in cases in which the bad Character is in issue.

3. A previous conviction is not admissible in evidence against the accused, except where he is liable to enhanced punishment under Section 75 of the Indian Penal Code, on account of previous conviction, or unless evidence of good character be given, in which case the fact that the accused had been previously convicted of an offence is admissible as evidence of bad character.

Facts need not be proved [sections 56-58]

As we were discussing in our classes in every case whether criminal or civil, the facts in issue and relevant facts to the facts to the fact in issue are to be proved by the parties who contend them to true and exist. The question is do all the facts need to be proved or is there any exception to this.

Sections 56, 57 and 58 deals with facts which need not be proved by the facts. They are as under:

Section 56: Facts judicially noticeable need not be proved

Section 57: Facts of which the court must take judicial notice

Section 58: Facts admitted need not be proved

Let’s see one by one of these provisions:

Section 56: Facts judicially noticeable need not be proved: No fact of which the court will take judicial notice need be proved

This section spares the parties from proving the facts which the court takes the judicial notice of it by itself. It means the court which is bound to take the judicial notice of a particular fact, such fact need not be proved by the court. For example, the court is bound to know the law of land. The effect of this section is the recognisition of something as existing or being true without proof of it. This section is based upon reasons of convenience or expediency. It lays down the facts which are within the common knowledge of everyone requires no proof.

In Managing Committee of Raja Sidheshwar High School v. State of Bihar the Supreme Court held that the court can take judicial notice of the fact that the system of education in the State has virtually crumbled and serious allegations are made frequently about the manner in which the system is being worked.

Section 57: Facts of which the Court must take Judicial Notice: The court shall take judicial notice of the following facts:

(1) All laws in force in the territory of India

(2) All public Acts passed or hereafter to be passed by Parliament of the United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;

(3) Articles of War for the Indian Army Navy or Air Force

(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States;

(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland ;

(6) All seals of which English Courts take judicial notice: the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown Representative, the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries. Public, and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India

(7) The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette

(8) The existence, title and national flag of every State or Sovereign recognized by the Government of India;

(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette;

(10) The territories under the dominion of the Government of India;

(11) The commencement, continuance, and termination of hostilities between the Government of India and any other State or body of persons;

(12) The names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of or all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;

(13) The rule of the road on land or at sea

In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.

If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable to so

The two effects of the last two paras in the section, The first one says that in all these matters, and also on matters of public history, literature, science or art, the court may consult the appropriate books or documents of reference. The second is that if a party calls upon the court to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as the court may consider necessary to enable it to take judicial notice. It means that the party who desires the court to take judicial notice of a fact has to produce before the court the reference material. Where, for example, a party request the court to take judicial notice of the proceedings of the legislatures, he should produce before the court the journal of those bodies, or their published acts or abstracts, or copies purported to be printed by order of the government concerned. In other words, the source material in which the judicially noticeable fact is recorded will have to be produced before the court.

Section 58: Facts admitted need not be proved

No fact need to be proved in any proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings.”

Provided that court may in its discretion require the facts admitted to be proved otherwise than such admissions

This section lays down that facts which have been admitted by the parties need not be proved.. Averments made in a petition which have not been contended by the respondent carry the effect of a fact admitted.

In Thimmappa Rai v. Ramanna Rai, it was held, an admission made by a party to a suit in an earlier proceeding is admissible against him in a subsequent suit also.

The court gives its judgment, on the basis of the contentions argues before it that is to say, according to the issues between the parties. Facts which have been admitted on both sides are not an issue and, therefore, no proof needs to be offered of them.

However, with respect to the admissions, the court may in its discretion require proof of it as the effect of admissions are conclusive but only acts as estoppel.

Modes of Proof of Facts [sections 59 – 90]

A fact may be proved either by oral evidence or documentary evidence. That means there are two methods, one by producing the witness of fact and getting his deposition which is called as oral evidence, second by producing a document which records a fact, which is called as documentary evidence. Section 3 defines what is oral and documentary evidence. Both oral evidence and documentary evidence carry equal weight age in their acceptance as evidence. We discuss the rules governing these two kinds of evidences.

Sections 59 and 60 deal with rules of oral evidence where as sections 61 to 90 deal with rules of documentary evidence.

Oral Evidence

Section 3 defines oral evidence as “All the statements which the court permits or requires to be made before it by witnesses in relation to the maters under inquiry; such statements are called as Oral Evidence.

Section 59: All facts except the contents of a document or electronic records may be proved by oral evidence.

Section 59 makes it clear that all the facts except those which are contained in documents be proved by oral evidence, which includes electronic documents, which are considered as documents after IT Act 2000 has been passed.

Rules of Oral Evidence:

Section 60: Oral Evidence must be direct: Oral evidence must, in all cases whatever, be direct; that is to say-

if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:

Provided also that, if oral evidence refers to existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

Direct or oral evidence: This section provides that oral evidence must be direct. This means the witness can tell the court only of a fact of which has firsthand knowledge in the sense that he perceived the fact by any of his five senses. On the other hand he cannot appear as witness if he has derived the knowledge about the fact through somebody. The effect of this section is clear that if the fact which could be seem, then the evidence must be by the person who actually saw it. If the fact is to be heard, then the evidence must be by the person who says he heard it, if the fact is to be perceived, then the evidence must be by the person who say he perceived it. Such person is called as direct witnesses and they only must give evidence in the court. Thus in all cases, the evidence has to be that of person who himself witnessed the happening of the fact of which he gives Evidence. such witnesses is called as eye witnesses or a witness of fact and the principle is known as that of direct Oral Evidence or of the exclusion of hearsay Evidence.

Exclusion of Hearsay Evidence: This section expressly excludes the hearsay evidence. Hearsay evidence means the evidence from a person who heard it from the person who saw or heard or perceived it. The reasons for exclusion of hearsay evidence are:

1. Hearsay evidence cannot be tested by cross examination

2. It is a weaker evidence

3. The declarant not under any personal liability

4. There is a possibility of fabrication

5. The truthfulness may depreciate in the process of repetition

Exceptions to the rule of exclusion of Hearsay Evidence

1. Resgestae under section 6: The statement may be proved through another person who appears as witness, if such person is a part of same transaction which is in issue. (R v Foster). It is essential the words sought to be proved by hearsay evidence must associate with time, place, and circumstances that they are the part of the thing being done.

2. Admissions and Confessions: The extra judicial admissions and confessions come under the category of hearsay evidence. They can be proved by the witness to whom they have been made outside the court. Such witnesses are not the witness of the fact, but they have heard it from the party who admitted their liability. The reasons for their admissibility as discussed under sections 17 as the statements which are against the interest of the maker hence admissible even if they are made outside the court.

3. Statements under section 32: Statements which are admitted under section 32 are mostly of the persons who are dead, or could not be found or became incapable of giving evidence or whose attendance cannot be procured except by an amount of delay or expense which court feels not necessary. The evidence of such statements from the persons who received from the persons mentioned are relevant under section 32. Hey include dying declarations, statements against the interest of the maker etc..

4. Statements in Public Documents: Section 74 defines what public documents are. They include the Acts of Parliament, official books, registers. The contents of such documents need not be proved by the production of the document itself. They can be proved by the certified copies of such documents

5. Evidence in Former Proceedings: Section 33 provides that evidence given in former proceeding by a witness can be used as evidence of truth in subsequent proceeding between the same parties or their privies if such witness is dead or has become incapable of giving evidence

6. Statements of Experts in treatise: Proviso under section 60 recognizes this exception. It says that the opinions expressed by the experts in any documents. They can be proved by producing such documents if the author has dead, or could not be found or became incapable of giving evidence. The opinion of expert can be cited only if it is expressed in any book form and expert himself is dead or unavailable to give evidence personally.

Rules of Documentary Evidence

Section 3 defines Documentary evidence as “ All the documents produced for the inspection by the court”. Such documents are called as Documentary Evidence.

The plain reading of the section makes it clear that, the documents which are submitted to the court for its inspection are documentary evidence. It means the documents which are submitted in the form of applications are not documentary evidence. Example Memos, Interlocutory Application etc.

Modes of proof of the contents of document

Section 61 : Proof of contents of documents

The contents of documents may be proved either by Primary or Secondary evidence.

Section 62 defines Primary Evidence:

Primary evidence means the documents itself produced for the inspection of the Court. Explanation 1—Where a document is executed in several parts, each part is primary evidence of the document:

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2- Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest ; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Illustration:

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

The section makes it clear that any number of copies of original document will be considered as primary evidence for the other copies produced, but not for the contents of the original document.

The section says that the best evidence is original document itself. That is the contents of any document can be proved by the writing itself.

Section 63 defines Secondary Evidence as:

Secondary evidence means and includes:

1. Certified copies

2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies.

3. Copies made from or compared with the original.

4. Counterparts of documents as against the parties who did not execute them

5. Oral accounts of the contents of a document given by some person who has himself seen it.

Illustration

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but he copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.

Section 64 provides that the documents must be proved by primary evidence except herein after mentioned.

Section 65 lays down the circumstances in which the document can be proved by secondary evidence. This can be termed as an exception to section 64.

Cases in which secondary evidence can be given:

(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;

(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) When the original is of such a nature as not to be easily movable;

(e) When the original is a public document within the meaning of section 74;

(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;

(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

Public Documents and their Proof [sections 74-76]

Public Documents: Public Documents are those documents which relate to the public offices of the state available the public for reference and use. They also contain statements made by the public officer in their official capacity, which are admissible as evidence in civil cases mostly. They are also known as public records issued for the knowledge of public

Section 74 of the Indian Evidence Act, 1872 states that the following documents are considered public documents:

Documents forming the acts or records of the acts:

1. Of sovereign authority

2. Of official bodies and tribunals

3. Of public officers, legislative, judiciary and executive of any part of India or of the commonwealth, or of a foreign country.

4. The public record kept in any State of Private document

The Public Documents further explained as:

1. Documents forming the acts or records of acts-

• Statements recorded by police officers under section 161, Cr.P.C are required by S. 115(5) and (7) read together to be furnished to the accused.

• Records maintained by revenue officers relating to land revenue, survey and settlement etc are public documents, ‘pahanies’ and ‘faisal patties’ are public documents..

• Records of development authorities are public documents.

a) Published Scheme Under Statute-

• A scheme was published in the Official Gazette under the Electricity Supply Act, 1948. The scheme envisaged installation of overhead transmission lines. The scheme had thus become a public document.

b) Orders of civil court, FIR, Charge-sheet-

• Certified copies of the orders of the civil court and FIR were allowed to be submitted because they all are Public Documents.

• A charge- sheet under S.120-B of IPC, 1860 against an election candidate was held to be a public document and admissible in evidence without any proof.. c) Marriage register-

• Hindu Marriage Register has been held to be a Public Document.

• A death certificate though a public document, could not be accepted without considering circumstances.

2) Public records kept in any state of private documents.

• For example, Memorandum of Articles of a Company registered with the Registrar of companies.

How Public Document are Proved

Public Documents are always proved by certified copies. For this reason it is an exception to the rule of exclusion of Hearsay Evidence

Section 76 provides the method of certified copies of public documents from the public officer. It states that if a public document is open to inspection, it’s copy may be issued to any person who is demanding it. The copy of the public document is issued on payment of legal fees and a certificate shall be attached thereof, containing the following particulars:

1. That it is a true copy.

2. The date of the issue of the copy.

3. The name of the officer and his official seal.

4. The seal of the office, if there is any.

5. It must be dated.

When these particulars are mentioned in the copy, then only it is considered as a Certified Copy.

Ancient Documents [section 90]

Where any document, purporting or proved to be thirty years old, produced from any custody which the Court considers proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person’s handwriting, and in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation: What is proper custody?

Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be. However, no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

Illustrations of ‘Proper custody’:

(a) A has been in possession of landed property for a long time. He produces from his custody.

The custody is proper.

(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.

The Exclusion of Oral Evidence by Documentary Evidence [sections 91-100]

Secs. 91 to 100 deal with the law relating to inadmissibility of oral evidence where documentary evidence is available, or where a transaction must be in writing

Sec. 91: Evidence of Terms of Contracts, Etc. Reduced to Form of Document

Section 91 provides that:

1. when the terms of a contracts or grants or other depositions of the property is reduced into writing and

2. in all the cases in which any matter is required by law to be reduced to a form of 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

1. the document itself, or

2. secondary evidence of its contents in cases in which secondary evidence is admissible

Explanation 1 clarifies that the contracts, grants or dispositions of property referred in this section may be contained in one document or they may be contained in more documents than one.

Illustrations

(a) If a contract be 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

.

Explanation 2 further clarifies that where there are more originals than one, one original only need be proved.

Illustration

(c) If a bill of exchange is drawn in a set of three, one only need be proved.

Explanation 3 is also by way of removal of doubt. According to this explanation the statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.

Illustration

(d) A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion.

There are two exceptions to this rule:

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.

2. Wills admitted to probate in India may be proved by the probate.

Exclusion of Evidence of Oral Agreements [section 92]

Section 92 is complimentary to section 91. According to it, when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

Illustrations

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

(b) A agrees absolutely in writing to pay B 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 Rampore 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.

There are six provisos to sec. 92. These provisos are based on the principle that what cannot be included in a document cannot be insisted to be proven by documentary evidence. For example, the true ages of the parties, their mental capacities, actual payment of the consideration, etc. require oral evidence to prove them. Therefore, oral evidence to prove them is admissible.

Proviso (1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.

Illustrations

(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B’s as to their value. This fact may be proved.

(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.

(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.

(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this.

Proviso (2) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved.

Illustrations

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in thesewords: “Bought of A a horse of Rs. 500”. B may prove the verbal warranty. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.

(h) A hires lodgings of B, and gives B a card on which is written— “Rooms, Rs. 200 a month.” A may prove a verbal agreement that these terms were to include partial board. A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally.

Proviso (3): The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

Proviso (4): The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

Proviso (5): Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with the express terms of the contract

.

Proviso (6): Any fact may be proved which shows it, what manner the language of a document is related to existing facts.

Illustration

(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered.

Oral Evidence to explain Ambiguity in the Document [Sections 93-100]

Where any word, expression, sentence or statement is capable of giving more than one meaning, such word, expression etc. is called ambiguous. Ambiguity may be patent ambiguity or latent ambiguity.

Patent Ambiguity

Where the ambiguity is apparent on the face of the document, it is called patent ambiguity. It is apparent from the reading itself.

Section 93 provides that oral evidence is not admissible to resolve a patent ambiguity in a document. Section also covers patent defects. patent defects.

The section reads, when the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.

Illustrations

(a) A agrees, in writing, to sell a horse to B for “Rs. 1,000 or Rs.1,500”. Evidence cannot be given to show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled.

When there is no ambiguity, whether patent or latent, oral evidence is not admissible that the document means something else.

Section 94 provides When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.

Illustrations

A sells to B, by deed, “my estate at Rampur containing 100 bighas”. A has an estate at Rampur containing 100 bighas.

Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size.

Latent Ambiguity

latent ambiguity, as the term suggests, is a hidden ambiguity. It is not apparent on the face of the document. When the document is read, it does not appear to be ambiguous. But the external facts make it ambiguous.

Sections 95, 96.97, 98.99 &100 provide Oral Evidence be given to resolve the latent ambiguity

• Sec 95: Evidence as to document unmeaning in reference to existing facts

• Sec 96: Evidence as to application of language which can apply to one only of several persons

• Sec 97: Evidence as application of language to one of two sets of facts to neither of which the whole correctly applies

• Sec 98: Evidence as meaning of illegible characters..etc

• Sec 99: Who may give evidence of agreement varying terms of document

• Sec 100: Saving of provisions of Indian Succession Act relating to wills