Report No. 69

II. Want of Symmetry

43.3. At the outset, it is necessary to discuss one important question which relates not to any matter of detail pertaining to the section, but to the scope of the section as a whole. This question is concerned with the application of the section to documents concerned with matters other than contracts, grants and dispositions of property. How far should the section, in its latter half, apply to non-contractual and non-proprietary matters o.- more particularl.- to non-contractual and non-proprietary unilateral matters? Like section 91, section 92, in its opening part, speaks of two kinds of situation.- (i) contract, grant or other disposition of property reduced to the form of a document, and (ii) matter required by law to be reduced to such form.

Now take the operative portion in section 92, which is represented by the words "no evidence shall be admitted, as between the parties to any such instrument". This part is so worded that it is not clear how far it is applicable to the transactions referred to above. A want of symmetry arises by reason of the words "as between the parties."

43.4. To put the matter in a different form, section 92, in its earlier half, purports to deal with two situations-

(i) when the terms of any contract, grant or other disposition of property, reduced to the form of a document, have been proved according to section 91; and

(ii)when any matter required by law to be reduced to the form of a document, and so reduced, has been proved according to section 91.

Taken together these two would cover all the cases to which section 91 applies. But difficulty arises from the operative provision in the latter half of section 92 (prohibiting evidence of oral agreement or statement at variance with the document). How far should this part of the section cover any matter required by law to be reduced to document which is not a contract, grant or disposition of property? This part of the section does not cover the whole field traversed by section 91. The wording is somewhat ambiguous or incomplete; this ambiguity or incompleteness results primarily from the words "bet-ween the parties" etc.

43.5. Two possible interpretations.-

One possible view is that both the situations mentioned above-i.e. all cases falling under section 9.- and to be covered by latter part of section 92.

43.6. On another interpretation, however, the subject-matter of section 92 is merely (a) contracts, grants and other dispositions of property, embodied in a document by consent of parties, and (b) (at the most) other bilateral transactions embodied in a document by requirement of law;

This view would leave out those transactions which are not bilateral, and are not in the nature of contracts, grants and other dispositions of property. Thus, on this interpretation, the section is limited to bilateral documents. The effect of the later interpretation could be illustrated by taking the case of the statement of a witness recorded by a court as required by law. Oral evidence to contradict the record of the statement would not be excluded, on the latter interpretation since the statement is not a bilateral transaction, and the words "between the parties to it", which occur in the latter part of section 92, cannot be appropriately applied to the record of the statement.

Again, where the matter required to be reduced by law in writing is a decree, the section, on this view, would permit evidence to contradict the terms of the decree. "In other words, the case where a matter is required to be reduced into writing by law and is so reduced, but does not constitute a bilateral transaction, would, on this interpretation, be outside section 92. The question then arises what ought to be the proper approach in regard to the contradiction of such matter.

43.7. Case law-High Court.-

We shall first refer to the decisions of the High courts, in order to indicate the nature of the controversy, and then refer to certain observations of the Supreme Court on the subject. One view on the subject would appear to be that the second part of the section is not confined to dispositive documents, but applies to all documents which are contracts, grants or dispositions of property reduced to writing, or contain matter which the law requires to be reduced to writing. This view is represented by certain Madras decisions1 and also by the observations of Walsh J. in an Allahabad case2 On this view, sections 91-92 are co-extensive with each other.

1. Raja of Kala Hasti v. Venkatadri Rao (Madras), infra.

2. Lachhman Das v. Baba Ramnath (Allahabad), infra.

43.8. According to another view, because of the words "as between the parties to any such instrument" which occur in section 92, section 92 has a narrower scope than section 91, and deals only with two classes of cases, name-ly, (i) contracts, grants or other dispositions of property reduced to the form of document by the act of parties and (ii) contracts, grants or other dispositions of property which are required by law to be reduced to the form of a document1. This is the Calcutta view, taken in 1914.

1. Debendra Narain v. Surrendera Mohan, AIR 1914 Cal 697 (699) (Mookerjee & Beachcroft, JJ.).

43.9. Indian case law.-

It was held in an early Calcutta case,1that the object of the Legislature was to deal with two classes of cases, namely, first, contracts, grants or other dispositions of property which had been reduced to the form of a document by the act of parties as mentioned in section 91 and, secondly, contracts etc. required to be reduced to the form of a document. This decision has been followed in a later Calcutta case.2

1. Debendra Narain v. Sourindra Mohan, AIR 1914 Cal 697 (699).

2. Gajanand v. Haribux, AIR 1943 Cal 634 (635) (Mc Nair, J.) (reviews cases).

43.10. According to another Calcutta case1, sections 91 and 92 refer only to what are known as dispositive documents, and the words "or any matters required by law to be reduced to the form of a document" must be read in that sense. The actual case related to a decree but the reasoning on which the decision is based was as stated above. The High Court relied on "the language of that section (section 92) and section 91 which precedes it and to the principle which underlies them". On this view, section 92 would be con-fined to-

(a) contracts, grants or dispositions of property in writing, and

(b) any other matter required by law to be reduced to the form of a document, provided it is of a dispositive character.

Of course, in either case, the dispute must be between the parties to the instrument.

1. Ananda Priya v. Bijoy Krishan, AIR 1926 Cal 643 (Newbould and Graham, JJ.).

43.11. Shades of view.-

43.11. The Allahabad view' is that because of the words "as between the Shades of view1 parties to any such instrument", and the word "instrument", the section applies only to dispositive documents between contracting parties or elaborately,

(a) contracts, grants or dispositions of property, and

(b) dispositive instruments inter parties which embody matter required by law to be reduced to the form of a document, provided, of course, in every case, that the dispute arises between the parties.

1. Ganga Dihal Rai v. Ram Oudh, AIR 1929 All 79 (81) (Sulaiman, Ag., CJ.). (Case reg decrees).

43.12. Earlier decisions of High Court.-

The Madras view is to the contrary. The following extract from the Judgment of Odgers J. in a Madras case1 reported in 1927 is instructive, as showing the views on the subject as expressed judicially upto 1927 and as also showing the Madras views:

"Much stress is laid on Debendra Narain Sinha v. Sourindra Mohan Sinha, (1914) 24 IC 391: AIR 1914 Cal 697, a case of the Calcutta High Cour.- and Ananda Priya Baishnavi v. Bijoy Krishna Ray, (1925) 91 IC 705: AIR 1926 Cal 643, simply follows i.- where the learned judges held that section 92 of the Evidence Act does not apply to decrees and therefore oral evidence may be admissible in proof of an alleged oral agreement between the decree-holder and judgment-debtor.

"This is based on the assumption that the words as between the parties to any such instrument or their representatives in interest" are to be read along with the words "contract, grant or disposition of property" and also along with the words "or any other matter required by kw to be reduced to the form of a document.2 On this assumption the learned Judges proceed to hold that the object of the Legislature was to deal with only two classes of cases, namely first, contracts, etc., reduced to writing by the act of parties as mentioned in section 91, and the form of writing; in other words, the expression "any matter required by law to be reduced to the form of a document" is controlled by the expression "as between the parties to any such instrument or their representatives in interest" and has, in section 92, a much narrower scope than in section 91.

This case, though not quoted, was obviously before two other judges of the same High Court in Ananda Priya Baishnavi v. Bijoy Krishna Ray, (1925) 91 IC 705,, and was followed. It is to the same effect, i.e. that section 92 of the Evidence Act only refers to dispositive documents, in other words, the words "any matter required by law to be reduced to the form of a document" are ejusdem generis with contracts, grants or dispositions of property. This case Debendra Narain Sinha v. Sourindra Mohan Sinha, (1914) 24 IC 391, has been disapproved by Napier and Krishnan JJ., in S.A. No. 62 of 1920.

They agree in saying that there is no warrant for the narrow construction placed on the material words by the Calcutta High Court, and, if I may say so, I respectfully agree with their opinion. In Lachhman Das v. Baba Ramnath, 1922 ILR 44 All 258: AIR 1922 All 13, the judgment-debtor alleged an oral agreement and the decree-holder denied such an adjustment taking place. Both the judges held that such an agreement as alleged could not be set up under Order XXI, rule 2, as a bar to execution and one of the learned Judges, Walsh J.. also held that under section 92 of the Evidence Act it could not be set up as it was clearly a new agreement contradicting or varying the terms of the original decree."

1. Raja of Kalahasti v. Venkatadri Rao, 1927 MR 50 Mad 897 (900, 901): AIR 1927 Mad 911

2. Emphasis supplied.

43.12A. The observations of Curgenven, J. in a Madras case may be cited1-

"As an oral agreement, I hold that it offends against the terms of section 92, Indian Evidence Act. The learned Judges who decided Debendra Narain Sinha v. Sourindra Mohan Sinha, (1914) 24 IC 391, considered that the words "any matter required by law to be reduced to the form of a document" being controlled by the words 'as between the parties to any such instrument or their representatives, in-interest' must be construed as meaning contracts, grants, or other dispositions of property which are required by law to be reduced to the form of a document.

With great respect I do not feel constrained by the language of the section to narrow its scope in this manner, more especially as it seems,2 as objectionable, that the parties to a decree should orally vary its terms, as that they should so vary the terms of any 'dispositive' instrument. It does not, therefore, seem reasonable to attribute to the legislature an intention to permit the one while prohibiting the other. Nor do I see any such instrument to a decree-holder and a judgment-debtor. I prefer therefore to adopt the construction favoured in M. V. Collard v. M.A. Collard, AIR 1922 All 7: 44 All 954, and by Napier and Krishnan, JJ., in S.A. 52 of 1920 and to hold that section 92 does not preclude the proof of an oral agreement modifying the terms of a decree."

1. Raja of Kalahasti v. Venkatadri Rao, AIR 1927 Mad 911 (915).

2. Emphasis supplied.

43.13. Supreme Court cases.-

So much as regards the decisions of the High Courts. The matter was discussed by the Supreme Court a few years ago.1 In that case the official assignee moved the Insolvency Court under section 55 of the Presidency Towns Insolvency Act, for a declaration that a deed of gift executed by the insolvent in favour of his wife and sons, (appellants) was void, as one without consideration. It was held that it was open to the appellants (the wife and sons) to lead oral evidence to show that the transaction evidenced by the deed of gift was, in reality, a transfer for consideration. Section 92 of the Evidence Act was wholly inapplicable to the proceedings, because the dispute did not arise between the parties.2

The Supreme Court, however, cOnsidered sections 91-92 in detail. The observations, though obiter,3 of the Supreme Court, in this case4 seem to take, in effect, the view that section 92 is confined to bilateral documents.

1. Hira Devi v. Official Assignee, AIR 1958 SC 448: 1958 SCR 1384.

2. See section 99.

3. Bai Hira Devi v. Official Assignee, Bombay, AIR 1958 SC 448 (450), left hand columr para. 5.

4. Also see Chandi Prasad Singh v. Piari Biari Bibi, (1966) 8 SCR 138, Point 173; relied on i Bhandare v. Erasmo, AIR 1971 Goa 25 (26).

43.14. So far as section 92 is concerned, the relevant observations of the Supreme Court are as follows1:-

"Section 92 excludes the evidence of oral agreements and it applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under section 91; in other words, it is after the document has been produced to prove its terms under section 91 that the provisions of section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. The application of this rule is limited to cases as between parties to the instrument or their representatives in interest. There are six provisions to this section with which we are not concerned in the present appeal.

It would be noticed that Ss. 91 and 92 in effect supplement each other. Section 91 would be frustrated without the aid of s. 92 and s. 92 would be inoperative without the aid of s. 91. Since section 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the documents properly proved under s. 91, it may be said that it makes the proof of the document conclusive of its contents. Like s. 91, s. 92 also can be said to be based on the best evidence rule. The two sections, however, differ in some material particulars. Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas s. 92 applies to documents which can he described as is positive2. Section 91, applies to documents which are both bilateral and unilateral, unlike s. 92 the "application of which is con-fined only to bilateral documents.

Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents. Section 92, on the other hand, applies only between the parties to the instrument or their representatives in interest. There is no doubt that s. 92 does not apply to strangers who are not bound or affected by the terms of the documents. Persons other than those who are Parties to the document are not precluded from these giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the document.

It is only where a question arises about the effect of the document as between the parties, or their representatives in interest that the rule enunciated by S. 92 about the exclusion of oral agreement can be invoked. This position is made absolutely clear by the provisions of S. 99 itself. Section 99 provides that "persons who are not parties to a document or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document".

Though it is only variation which is specifically mentioned in S. 99, there can be no doubt that the third party's right to lead evidence which is recognised by S. 99 would include a right to lead evidence not only to vary the terms of the document, but to contradict the said terms or to add to or subtract from them. If that be the true position, before considering the effect of the provisions of S. 92 in regard to the appellants' right to lead oral evidence, it would be necessary to examine whether S. 92 applies at all to the present proceedings between the official assignee who is the respondent and the donees from the insolvent who are the appellants before us.

1. Bai Hira Devi v. Official Assignee, AIR 1958 SC 448 (450): 1958 SCR 1348.

2. Emphasis supplied.

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