Report No. 185

Section 91

This section and sections 92 to 100 are contained in Chapter VI of the Act and deal with "of the exclusion of oral by documentary evidence".

We shall first start with Section 91. It is a lengthy section with two Exceptions and three Explanations. There are five illustrations below the section.

In the 69th Report, after an elaborate discussion in paragraphs 42.1 to 42.40, after consideration of the provisions of the main section, the two Exceptions and three Explanations, it was recommended that the amendments are not necessary (see paras 42.25, 42.37, 42.40A).

But it was stated that section 91 and the next section i.e. Section 92 are complementary to each other. In the discussion under Section 92, some amendments were suggested (see paras 43.18 and 48.20).

As the two sections are complementary, it would be necessary to refer to Section 91 and its main scheme. Section 91 reads as follows: It bears the headin.-

"Evidence of terms of contracts, grants and other dispositions of property reduced to the form of a document"

The body of Section 91 reads as follows:

"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 dispositions 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 has 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 and their purport

(a) If a contract be contained in several letters, all the letter in which it is contained must be proved (This illustrates the first Explanation).

(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved (This illustrates the main paragraph).

(c) If a bill of exchange is drawn in a set of three, one only need to be proved (This illustrates the second Explanation).

(d) A contract, 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. 431 Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible (This illustrates the third Explanation).

(e) A gives B a receipt for money paid by B. Oral evidence is offered for the payment. The evidence is admissible. (This also illustrates the third Explanation).

This section refers to the 'primary evidence rule' and the 'secondary evidence rule' and applies to two types of documents:

(1) 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

(2) in all cases in which any matter is required by law to be reduced to the form of a document (such as Section 17 of the Registration Act, 1908).

In these cases, the primary document must be produced; or secondary evidence of its contents may be adduced in cases in which secondary evidence is admissible under the provisions of the Act (sections 65, 66).

Apart from the two exceptions, Explanation 3 also provides for another exceptio.- where a document in writing is not of a fact in issue and is merely used as evidence to prove some fact, oral evidence aliunde is admissible such as where the payment of money may be proved by oral evidence although a receipt was granted.

There is a huge body of case law of the Privy Council, Supreme Court and the High Courts. Sarkar (Evidence, 15th Ed., 1999) discusses the case law from page 1267 to page 1305 and refers to the English cases also. The author also refers to the case law subsequent to the 69th Report of the Law Commission. We have examined the case law referred to in Sarkar and in other treatises.

Vepa Sarathi in his Evidence (5th Ed., 2002)(at p.299) has referred to the Supreme Court judgments arising under Section 91 and we shall just give a list of these cases, those before and after 1977 but do not propose to discuss the case law as in our opinion, Section 91 does not require any amendment. The cases decided by the Supreme Court may be stated as follows:

Radha Sunder Datta v. Mohd. Jahadur Rahim: AIR 1959 SC 24; Anayatullah v. Commr. of Muslim Wakfs: 1991 Suppl(1) SCC 396; T.N. State Education Board v. N. Raju Reddi: 1996(4) SCC 551; Gen Court Martial v. Aniltej Singh Dhaliwal: 1998(1)SCC 756; Ishwar Das Jain v. Sohan Lal: 2000(1) SCC 434; Zahuri Shah v. Dwarka Prasad: 1966(2) SCWR 184; Gurnam Singh v. Surjit Singh: 1975(4) SCC 404; Mohinder v. State of Haryana 1974(4) SCC 285; Bhireshwara Swami Varu Temple v. Pedapudi: 1973(2)SCC 261; Fort Gloster Industries v. Sethia Mercantile: 1972(4)SCC 252; Abdulla Ahmed v. Animendra: 1950 SCR 30; Veeramachineri v. Andhra Bank: 1971(1) SCC 874; Phiroze Bamanji Desai v. Chandrakant: 1974(1) SCC 661; Mahendra & Mahendra v. Union of India: 1979(2) SCC 529.

Section 91 applies as between persons who are parties or even to non- parties unlike section 92.

There is considerable case law pertaining to documents required to be registered but not registered, documents required to be stamped under the relevant stamp law and not stamped, admission of evidence as to collateral facts (under Explanation III). We do not find any point in referring to the various areas in which the section is held applicable in as much as that turns upon the applicability or otherwise of the clear principles set out in Section 91.

We agree with the 69th Report that no changes are required in Section 91.

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