Exception required by law to be appointed in

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.

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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 documents 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 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 B, for the delivery of indigo upon certain terms. The contract mentions the fact that  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  receipt for money paid by B.

Oral evidence is offered of the payment. The evidence is admissible.

Comments:

Principle:

Section 91 embodies the rule of best evidence and one of the fundamental principles of the Law of Evidence. According to this principle where the fact to be proved is embodied in a document, such document is the best evidence of the fact. The best evidence about the contents of a document is the document itself and it is the production of the document required by this section in proof of its contents. Where written documents is available, no amount of oral evidence can be substitute.

That is why, it is said “whatever is in writing must be proved by the writing.” It, however, does not prohibit parties to adduce evidence, in case the deed is capable of being construed differently to show how they understood same. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than oral evidence. It is of policy because it would be attended with great mischief if those instrument upon which man’s rights defended, were liable to be impeached by loose collateral evidence.”

Application of Section 91:

1. When the terms of contract, grant or other disposition of property have been reduced to the form of document, or

2. Where any matter is required by law to be reduced to the form of document.

Section 91, therefore, deals with contract, grant and other disposition of property, like wills, power of attorney, dispositions of witness etc. It also applies to strangers as well as to the parties to the transactions. The bar under section 91 is not applicable to mortgager’s oral testimony.

Under the first part the section requires that the document itself has to be produced to prove the terms of such contract, grant and other disposition of property or matter so required by law to be in writing. No other evidence can be given except secondary evidence of the contents of the document. The best evidence about the contents of a document is the document itself and it is the production of the document that is required by Section 9 of the Act in proof of its contents. The second part refers to those cases in which any matter is required by law to be reduced to the form of document. For example, sale of immovable property valued one hundred rupees or more, mortgage exceeding one hundred rupees, a gift of immovable property etc.

There are two exceptions to this section:

(1) When it is required that a public officer should be appointed by writing and when it is shown that a particular person has acted as such officer, the writing by which he has been appointed need not be proved.

(2) The contents of a will of which probate has been granted in India may be proved by the probate.

The general rule laid down in this section is also subject to the exceptions laid down in Sections 95 to 99.

Documents must be in writing:

According to the section the terms of a contract, grant or other disposition of property must be in writing and admission of oral evidence is prohibited. For example, a sale of immovable property of the value of Rs.100 or upwards is required by law to be in writing. Thus, the writing becomes only evidence and excludes all other evidences. Under section 18 of the Limitation Act an acknowledgement of liability must be made in writing.

Where under law the contract has to be in writing can only prove such contract by the production of such writing.

The court does not allow oral evidence to prove the contents of a partition deed. When a transaction either contract, grant or other disposition of property has been reduced to writing either by requirement of law or by consent of the parties, the writing is the best evidence. But, if the parties intended only to reduce to writing a portion of the terms of the contract, then they are entitled to give parole evidence of the terms which they did not intent to reduce to writing. In a dispute as to whether document in question is a contract of indemnity or bank guarantee oral evidence cannot prevail over written and agreed document.

Once original document is bound not admissible in evidence the secondary evidence by way of oral evidence is also not admissible. Plea of license that it was orally agreed to treat license as irrevocable one is not tenable under sections 91 and 92 of the Evidence Act excludes oral evidence.

Matters required by law to be reduced to the form of a document:

A matter required by law to be reduced to the form of document, cannot be put in evidence unless they are in the form of document. No evidence other than the document itself is admissible. For example, (i) confession of the accused under section 164 of the Cr. PC, (ii) judgment and decree, (iii) deed, (iv) mortgages etc. where document of transaction is inadmissible for want of registration no other evidence of its contents can be received.

Oral evidence not excluded:

One fundamental principle of law is that best evidence should be given in all case. The document or secondary evidence of the document is considered to be best evidence. But, under certain circumstances oral evidence of the contents of a document may be given. Section 91 does not prohibit the parties to lead oral evidence in respect of contract and oral agreement between the parties simultaneously along with document.

An oral account of the contents of a document can be given by a person who has seen the document in circumstances in which the secondary evidence of document is admissible. Sections 91 and 92 also permit cross- examination of the witnesses by opposition party.

Unstamped or insufficiently stamped document:

It is settled law that unstamped or insufficiently stamped document cannot be used for any purpose. Section 35 of the Indian Stamp Act prohibits the use of any instrument chargeable with duty unless it is duly stamped. Where probate was insufficiently stamped and therefore inadmissible in evidence, the terms thereof cannot be proved by adducing oral evidence, since it is barred under section 91 of the Evidence Act.

Document without registration:

A document is inadmissible for want of registration where registration is compulsory under the Registration Act. No other evidence including secondary evidence is admissible. Unregistered deed is allowed to be produced under the pretence of evidence for a collateral purpose. The partition deed which is unregistered cannot be proved by issue of commission. This is barred by Section 91 of the Evidence Act. Where deed of exchange being an unregistered document is inadmissible in evidence, as such, it can neither be proved under section 91 or any oral evidence can be given to prove its content. Deed of exchange valued exceeding one hundred rupees is registrable under section 49 of the Registration Act. Deed when unregistered is inadmissible and no oral evidence can be given to prove the contents.

Promissory note not admissible in evidence:

A promissory note is inadmissible in evidence for want of sufficient stamp or not being stamped. “If the instrument becomes inadmissible in evidence the liability cannot otherwise be enforced. The acceptance of the promissory note operates as accord and satisfaction of the debt or the liability.”—FIELD.

Explanation 1:

Where the terms of the contract, grant or other disposition of property is contained in documents more than one all documents are to be produced before the court to prove the terms of the contract. Thus the Explanation 1 requires the application of Section 91 [Illustration (a)].

Explanation 2:

According to Explanation 2 when there is more original than one. one original only is to be proved before the court [Illustration (c)].

Explanation 3:

When the terms of contract, or of a grant or of any other disposition of the property reduced to writing by the agreement of the parties or by the requirement of the law, then all derivative proof is rejected until absence of document is accounted for. Therefore, if any document does not relate to any of those classes of facts mentioned in Section 91, oral evidence is not excluded by it [Illustrations (d) & (e)]. “If facts other than those mentioned in (a) and (b) above are reduced to writing, oral evidence in regard to these matters is also not hit by Section 91. So also oral evidence to prove a document can always be allowed and is not prohibited by Section 91.”

Principle of exclusion:

The principle of exclusion applies only to a contract, grant or other disposition of property. A document or deed which cannot be described as a contract, grant or any disposition of property will not be affected by the rule.