Distinction between Section 91 and Section 92 - 

Section 91 of the Indian Evidence Act deals with the exclusiveness of the Documentary Evidence, that is, if the transaction has reduced to writing then the existence of the document excludes all other evidence of the transaction. Section 92 deals with exclusiveness of the documentary evidence, that is when the parties have deliberately put their agreement into writing, it is the writing, it is conclusively presumed between them and their privies, that they intended the writing to exclude and to form a full and final statement of their intentions and the parties or their privies are thus forbidden by the terms of Section 92 from giving any extrinsic evidence, to contradict, vary or explain written instruments, unless the case falls within any of the provisions to this section. Section 92 is really supplementary to Section 91 and is to some extent implied in it Section 92 is not applicable to any document to which section 91 does not apply.

Section 91 and Section 92 of the Indian Evidence Act, 1872 runs as follows - 

 Evidence of terms of contracts, grant and other dispositions of property reduced to form of documents (Section 91) -

          When the terms of a contract, or of a grant, or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a 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 the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

Exception 1.

       When a public officer is required by law to be appointed in writing, and when it is shown that any particular person had acted as such officer, the writing by which he is appointed need not be proved.

Exception 2. 

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

Explanation 1. 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 in which they are contained in more documents than one.

Explanation 2 

        Where there are more originals than one, one original only need be proved.

Explanation 3. 

        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.

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 I 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 B, for the delivery of indigo upon certain terms. The contract mentioned the fact that B had paid A the price of other in 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 B a receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible.

Exclusion of evidence of oral agreement (Section 92) - 

      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:

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:

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. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:

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 in what manner the language of a document is related to existing facts.

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 1st 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 Rampure 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.

     (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.

      (g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words “Bought of A a horse for Rs. 500”. B may prove the verbal warranty.

      (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.

      (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.

      (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.

See also

1.  Distinction/difference between Relevancy and Admissibility

2. Identification Parade

3. Doctrine of Res Gestae

4. What is Dying Declaration?

5. The Relevancy of Motive, Preparation and Conduct under the Indian Evidence Act


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