Proviso as fraud, intimidation, illegality, want of due

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;

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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.


(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  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 31st 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  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  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  by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery.  sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.

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

(h) A hires lodgings of B, and gives  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  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  for a debt due to A by sending a receipt for the money.  keeps the receipt and does not send the money. In a suit for the amount, A may prove this.

(j) A and  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.



Sections 91 and 92 are supplementary to each other. According to Section 91 when the terms of a contract, grant or any other disposition of property have been reduced to writing, the writing itself should be produced and no other evidence will be admissible. Section 92, on the other hand, lays down that when the terms of contract, grant or any other disposition of a property have been proved by the primary or secondary evidence of the document as laid down in Section 91, the parties to the contract or their legal representatives cannot be allowed to lead oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the contract. In other words no oral evidence is admissible in lieu of documentary evidence.

If the Section 92 does not apply there is no reason to exclude evidence about an oral agreement solely on the grounds that, if believed, the said evidence may vary the terms of the transaction. So, the other parties are left free to give such evidence. Section 92 is not a bar to the admission of oral evidence to prove the nature of transaction. Oral evidence is admissible to show the document executed was never intended to operate as an agreement but that term of his agreement altogether not recorded in the document, was entered into between the parties.

This section is only applicable to cases as between parties to an instrument or their representatives in interest. The intention of the parties is to be gathered from the words used in agreement. If the words are clear, there is very little that the court can do about it. But this section is inapplicable where the dispute is between a stranger to an instrument and a party to it or his representative in interest. “Section 91 deals with the exclusive aspect of the rule and Section 92 deals with its conclusive aspect.” Where an accused was found in possession of huge assets disproportionably to his income and explanation given by the accused that the loan was taken from witness. Oral evidence of witness, denying to have lend the said amount and possession of assets by the accused cannot be excluded under section 92 of the Act.

No oral evidence to modify agreement:

The oral evidence is permitted by the second proviso as to “any matter” on which the document is silent if any separate oral agreement exists which is not inconsistent with the terms of the document. If the consideration is to be regarded as one of the terms of the transaction no oral evidence under the second proviso can be permitted. Under the Rules of employment a settlement is required to be made in writing no evidence of an oral agreement about the terms of the settlement was allowed.

Again, oral evidence is not allowed to convert the date of adoption where there is registered deed of adoption which contains the date of adoption. Despite bar of Section 92, it is well settled that oral evidence is admissible to prove that a document though was executed was a nominal or sham document.

Again, evidence can be given of any oral agreement which does not contradict, vary, add to or subtract from the terms of the documents. Once a subrogation is reduced to writing, the rights inter se between the assured and the insurer will be regulated by the terms agreed, which is a matter of negotiation between the assured and the insurer.


There are certain exceptions to the rule excluding extrinsic evidence mentioned in Sections 91 and 92 of the Act, where oral evidence is admissible. The exceptions are as follows:

Proviso 1:

Any fact which would invalidate a document or which would entitle any person to a decree or order in respect of it, may be proved on the ground that it was obtained by fraud, intimidation, illegality or without being duly executed or was executed by incompetent party or that there was mistake of fact or law or that there was want or failure of consideration. Oral evidence was admissible when the case of a lady is that the transaction recorded in the document was never intended to be acted upon. When an agreement was found illegal and opposed to public policy, oral evidence was allowed. Document mentioning by mistake some other land than one intended to be transferred was allowed to be rectified to the tune of the real agreement. [Illustrations (a) & (e)].

In a mortgagor’s suit for redemption, it was held that oral evidence could be admitted to prove that the document was not intended to be acted upon and that it was a sham document and that it was executed only as a collateral security. But, on facts there was no evidence to the effect. The bar under section 92 is not applicable to an agreement which is partly oral and partly in writing. There is no bar in looking into evidence adduced by the appellants to show that the agreed purpose and intention of the parties to deed of exchequer is different from what is reflected therein.

It can be shown by oral evidence that the agreement in question was a sham and fictitious. Therefore the agreement being fraudulent is void under section 23 of the Contract Act.

Proviso 2:

Proviso 2 lays down that a separate oral agreement as to a matter on which the document is silent, and which is not inconsistent with its terms, may be proved. [Illustrations (g) & (Ë)].

According to this Proviso a separate oral agreement should relate to a matter on which the document is silent [Illustration (g)] and that it is not inconsistent with the terms in the document [Illustration (h)]

For example, when a document evidencing a loan does not make a mention of interest or rate thereof to be charged on the loan, evidence may be led to prove an oral agreement about it. Similarly, a registered agreement was silent about who would be entitled to the rents and fruits of the property in the interim period, evidence of oral agreement was allowed. Recitals in the deed of registration of a society were allowed to be explained by oral evidence. Oral evidence could be adduced to show what were the dominant objects of the society.

Proviso 3:

Where there is an oral agreement constituting a condition precedent to the attaching of any obligation under the documents, it may be proved. If the document was duly signed and executed, but it is subject to certain condition, which though not mentioned in the document an oral evidence is allowed to prove the condition [Illustration (i) & (f)]. For example, where the parties to a promissory note payable on demand and orally agreed that payment would not be demanded for five years, oral agreement was to be proved. Oral evidence was admitted in a mortgagor’s suit for rejection. But, oral evidence in contradiction with terms of the written document to show that adoption took place on different date is not admissible.

Proviso 4:

A distinct subsequent oral agreement to modify or rescind the document in question may be proved, except where such document is required to be in writing or has been registered where a transaction has been reduced into writing not because the law requires to be so, but by agreement for convenience of the parties, evidence of any subsequent oral agreement to modify or rescind it is admissible. But no evidence of an oral agreement is allowed to prove the contents of a lease document from those stated in the written lease deed.

Under this proviso it is open to a party to lead evidence to show that there was, apart from the written contract, a distinct subsequent oral agreement under which the terms of original contract have been modified, but this cannot be done so in a case in which such contract, grant, or disposition of property is required by law to be in writing or has been registered.

The second part of proviso (4) to Section 92 does not permit leading parole evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, revised or varied only by subsequent registered document and not otherwise.

Proviso 5:

Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to such contracts, may be proved if they are not inconsistent with its express terms. According to this proviso parole evidence can be given to prove that a particular usage or custom is prevailing in the trade and is considered to be implied term of contract. But it is subject to the condition that such usage or custom should not be against the express terms of the document. “But the rule for admitting evidence of usage must be taken always with this qualification, that the evidence proposed is not repugnant to or inconsistent with, the written contract.” Where goods sold are to be carried by the railways, but the contract does not mention as to who is to arrange for wagons, evidence may be offered that by the custom of the trade the seller had to arrange for wagons.

Proviso 6:

Any fact which shows in what manner the language of the document is related to existing fact may be proved.

In certain circumstances the proviso permits the application of extrinsic evidence as an aid to the construction of a document. But where the language of a document is not clear or its application of the facts is misleading, the extrinsic evidence is receivable of every material fact. The basic object of admissibility of the extrinsic evidence of the surrounding circumstances is to ascertain the real intention of the parties. This section does not fetter the power of the court to arrive at the true meaning of a document as disclosed by all the relevant surrounding circumstances. It has been held that this clause is not applicable to the consideration of the question whether a clause in agreement to a restrictive trade practices.

The object of admissibility of extrinsic evidence is to assist the court to get the real intention of the parties and to overcome the difficulty caused by the ambiguity. In such a case the subsequent conduct of the parties furnishes evidence to clear the blurred area and to ascertain the true intention of the author of the document.

Exceptions laid down in Section 91 of the Evidence Act:

1. Persons holding public office (Exception 1).

A public officer is required to be appointed by law by writing when it is shown that a particular person has acted as such officer it is sufficient proof of that appointment. The writing need not be proved.

2. Probate certificate (Exception 2).

Wills admitted to probate in India may be proved by the probate. The document containing the will need not be produced.

Probate means the grant of administration of the property by the court under the Indian Succession Act.

3. Extraneous fact (Explanation 3 of Section 91).

When the document relates to some other Facts other than those referred to or a document contains the statements of other independent facts, oral evidence is admissible in proof of them. [Illustration (d) & (e) of Section 91].