Snippet #156

Bulk of such Evidence – Waste Time and Space of Courts.

Jojy George Koduvath.

Abstract.

Oral evidence on contents of documents (unless secondary evidence is permitted) will be of no use, as it will be ‘irrelevant’.

Part I

Best-Evidence Rule.

Indian Evidence Act lays down the following principles of ‘Rule of Best-Evidence’:

No.	Proposit`i`ons	Sec. in Evd. Act
1	Best available evidence must be produced. If not, adverse presumption may be taken.	114 (g)
2	Oral evidence must be direct. Hearsay evidence is accepted in rare instances (that falls under Sec. 6 of the Evid. Act).	60
3	Documents must be proved by Primary Evidence. Contents of documents and electronic records are not allowed to be proved by oral evidence. Secondary evidence will be allowed only when it is so permitted.	64 & 65; 59; 22, 22A & 144.
4	To prove 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, document itself, or secondary evidence, must be produced.	91
5	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.	92
6	Sec. 93 and 94 speaks as to exclusion of evidence.	93 & 94
7	Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents.	94 to 99
8	Circumstantial and Presumptive evidence can be resorted to in proper cases.	114
9	Substantive evidence that requires corroboration must be corroborated.	157

See Blog: Best Evidence Rule in Indian Law

Documents must be Proved by Primary Evidence

Contents of documents are to be proved by producing the document itself, or its copy; oral evidence is permitted only in rare occasions.

Best evidence rule insists production of original (i.e., primary evidence) when it exists. ‘Oral evidence as to the contents of a document is admissible only in rare occasions’. It is the purposive layout and scheme of the Evidence Act – as emanated from Sections 59, 61, 62, 64, 65 and 144.

Sec. 59 of the Evidence Act reads as under:

“59. Proof of facts by oral evidence: All facts, except the contents of documents or electronic records, may be proved by oral evidence.”

Sec. 61 of the Evidence Act reads as under:

61. Proof of contents of documents.—The contents of documents may be proved either by primary or by secondary evidence.

Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court.

Sec. 64 of the Act requires that that the documents are to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.

Sec. 65 clause (a) to (g) delineates the cases in which secondary evidence relating to documents may be given.

Sec. 144 of the Evidence Act reads as under:

144. Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Sec. 22 says that oral admissions as to contents of documents are relevant if the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document.

Sec. 22A says as to oral admissions as to contents of electronic records as under:

“When oral admissions as to contents of electronic records are relevant
Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.”

‘Rule of Best Evidence’ – Sections 22, 59, 61, 62, 64 and 144 of the Evidence Act

These Sections of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)

Sec. 91 and 92 provides that when 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, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded.

The word ‘disposition’ is not a ‘term of law’ as observed in Pushpalatha N V v. V Padma, AIR 2010 Kant 124. It is said as under:

“The term ‘disposition’ has been defined in Stroud’s Judicial Dictionary as a devise ‘intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law’ and ‘includes transfer and change of property. The word ‘disposition’ means giving away or giving up by a person of something which was his own. It is not a term of law. In has no precise meaning. Its meaning has to be gathered from the context in which it is used. The word ‘disposition’ in relation to property means disposition made by deed or will and also disposition made by or under a decree of a court. The word ‘disposition’ would ordinarily be used in reference to a written document and not to the effect of that document. The removal of a thing from one’s self is involved in a disposal. The disposition is the provision creating the interest, not the interest itself. Therefore, disposition means a plan or arrangement for the disposal, distribution of something; definite settlement with regard to some matter.”

Both Sec. 91 and 92 are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6 SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7 SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).

The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:

“The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.” (Quoted in Placido Francisco Pinto v. Jose Francisco Pinto, 2021-10 SCR 676; V Anantha Raju v. T M Narasimhan, AIR 2021 SC 5342)

In Bhima Tima Dhotre v. The Pioneer Chemical Co. (1968) 70 Bom LR 683, it is observed as under:

“Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. That, however, is not the position under the Evidence Act. … Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”

However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106).

Sec. 22 of the Evidence Act – Only a Declaratory Provision

Sec. 22 of the Evidence Act reads as under:

22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises one thing positively – excepting the circumstances exempted (when entitled to give secondary evidence, and the genuineness of a document is in question) oral admissions on contents of the document are not relevant. That is even if such an evidence is tendered it will be discarded.

Is the principle, ‘Oral admissions as to the contents of a document are not relevant’, (originally) emerged from Sec. 22?

The answer is, ‘No’.

Because:

Sec. 22 primarily refers to ‘admission’; and it does not deal with the ‘entitlement’ to produce a Secondary Evidence as ‘Proof’.
Sec. 22 is included in the sections that pertains to ‘Admissions’ (comes in Part I), in Chapter II, which speaks on ‘Relevancy of Facts’, and not in Part II that deals with ‘Proof’.
As the marginal note (or heading) denotes, it is meant for setting forth – ‘When oral admissions as to contents of documents are relevant’. Two circumstances are laid down in Sec. 22. They are:
- (i) When the party proposing to prove the contents of a document is entitled to give secondary evidence of the contents of such document under the rules “hereinafter contained“, and
- (ii) When the genuineness of a document produced is in question.
Therefore, it is clear that we have to resort to other provisions of the Evidence Act (Sections 59, 61, 62, 64, 65 and 144) to see the ‘entitlement’ (as to) – ‘When a party to the litigation can give secondary evidence of the contents of such document’.

Sec. 22 – Variance from English Law on Admission of Contents of Document

In Perumal Chettiar v. Kamakshi Ammal, (1938) 2 MLJ 189, it is observed, with reference to Sec, 22 Evid. Act, as under:

23. Tyte v. Jones (referred to in the foot-note to Farr v. Price (1800) 1 East. 55 : 102 E.R. 22) seems to rest on another principle of the English law which the Indian Legislature had deliberately departed from, in enacting Section 22 of the Evidence Act. The proof that was permitted in Tyte v. Jones was to the effect that when the money for which the unstamped promissory note had been given was demanded of the defendant, he acknowledged the debt. This is explicable in the light of the rule supported by some authority in England that admissions by a party, even when proved by parol evidence, constitute an exception to the ‘best evidence’ rule (see Singleton v. Barrett (1832) 2 C. & J. 368 : 149 E.R. 157). This view has been criticised even in England (see Taylor on Evidence, Sections 410 to 412), and Section 22 of the Indian Evidence Act adopted the stricter view and relegated ‘oral’ admissions as to the contents of a document to the category of “secondary evidence”.

“Better Evidence” Rule in English Law – Despite Admission of Contents of Document

Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 ShimLC 341, referred English decisions on insistence of “better evidence”, as under:

“Greenleaf in his evidence at page 82 explained and stated the rule thus:
- ‘.. A fourth rule which governs the production of evidence that which requires the best evidence of which the case, in its nature, is susceptible. This rule does not demand the greatest amount of evidence which can possibly be given of any fact but its design to prevent the introduction of any, which from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud; for when it is apparent, that the better evidence is withheld, it is fair to presume that the party has some sinister motive for not producing and that if offered, his design would be frustrated….’
In Earl of Suffolk v. Greenwill, Ch. Rep. 89 (92), the Court ruled that it was dangerous to admit the contents and sufficiencies of deeds to be proved by the testimony of witnesses, the construction of deeds being the office of the Court. Tinterden, L.C.J. in Vincent v. Cole, M & M. 257, observed:
- ‘I have always (perhaps more so than other Judges), acted most strictly on the rule that what is in writing shall be proved by the writing itself. My experience has taught me the extreme danger or relying on the recollection of the witnesses, however, honest, as the contents of the written instruments; they may be so easily mistaken that I think the purposes of justice require the strict enforcement of the rule’.”

Rule of ‘Next Best Evidence’

Under the Rule of Best Evidence the law requires, production of the next best evidence if it is not possible to produce the best evidence. See the following:

Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
Jagdamba Tea Factory Vs. Parshotam Kishan, 2008-3 PunLR 388, 2008-3 RCR(CIVIL) 17,
2008-1 RCR (RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which was the next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on where entries in the municipal house tax register was considered.)
Chiman Lal v. Datar Singh, 1998 CriLJ 267, 1997 (1) WLN 396.
M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456

In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that the copy of a deed of transfer is not ordinarily a document of title for the purposes of an equitable mortgage, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the next best evidence of the owner’s title to the property would be a certified copy of that document.

Best Evidence Rule insists evidence of High Probative Value

Though various kinds of secondary evidences are provided under Sec. 63, the probative value of one kind (say, a photograph of an original, as stated in Illustration (a) of Sec. 63) will definitely be higher when compared with another (say, oral account). The best evidence rule insists evidence bearing high probative value.

Part II

When Document Available, Oral Evidence NOT admitted; Even if Admitted, NO use

Oral Admission of Witnesses on document is Bad and Barred in Indian Law as that of ‘hearsay evidence’.

Will Erroneous or Misguided Oral Evidence on Contents of a Document Harm its Author? No. Because, such evidence is ‘irrelevant’.

It is beyond doubt that ‘it is settled principle of law that where documentary evidence is available, no amount of oral evidence against the admitted document is admissible nor can be considered by the Court’ (Shiba Sankar Nanda v. Padmini Naik ILR 2011-1 Cut (Ori) 792).

When Document Available, Oral EVIDENCE as to its Contents Discarded. Oral evidence as to the contents of a document is admissible only in rare occasions. As observed in Shiba Sankar Nanda v. Padmini Naik, ILR 2011-1 Cut (Ori) 792, ‘it is settled principle of law that where documentary evidence is available, no amount of oral evidence against the admitted document is admissible nor can be considered by the Court’. Sections 22, 59, 61, 62, 64, 65 and 144 of the Evidence Act support this view.

Sec. 22 – If Document Available, Oral ADMISSIONS of its Author Ignored. Sec. 22 of the Evidence Act reads as under:

22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises one thing positively – excepting the two circumstances exempted (when entitled to give secondary evidence and the genuineness of a document is in question) oral admissions on contents of a document (i.e. admission by its author or a person under him) are not relevant. In other words, even if such an evidence is tendered it will not be looked into by the court.

Sec. 22 primarily pertains to ‘admission’; and it does not deal with the ‘entitlement’ to produce a Secondary Evidence as ‘Proof’. Because, Sec. 22 is included in the sections that deal with ‘Admissions’; and it comes in Part I, Chapter II, which speaks on ‘Relevancy of Facts’; and not in Part that relates to ‘Proof’, that is Part II. It is further clear from the marginal note (or heading) of Sec. 22 (‘When oral admissions as to contents of documents are relevant’).

At the same time it must be seen that Section 22 marches in Chapter II, which speaks on ‘Relevancy of Facts’. Sec. 5 raises a total bar to irrelevant ‘evidence’. Sec. 5 of the Evidence Act reads as under:

“Section 5: Evidence may be given of facts in issue and relevant facts:
Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.”

Therefore, Sec. 22 bars the author and persons under him from giving oral evidence as to contents of the document, if the document is available.

Bulk of Evidence Waste Time and Space of the Courts

It is very important to note that the oral statements of witnesses as regards the contents in an admitted document is irrelevant and therefore liable to be eschewed. Therefore, such statements could not harm or benefit the party to the suit or the maker thereof. Still, it is a sheer fact that bulk of such evidence is adduced in court wasting the time and space of the courts.

Statements of Witnesses as Explanation of Admitted Document is also Excluded. As already shown, the oral statements of witnesses as regards the contents in an admitted document is irrelevant; and therefore they are liable to be eschewed. Further, Sec. 93 and 94 speak as to exclusion of evidence (i) that intend to ‘explain or amend ambiguous document’ and (ii) that stands ‘against application of the document to existing facts’.

Sec. 93 and 94 speaks as to exclusion of evidence.
Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents.

Interpretation of Documents (Except Wills) – Provisions under Evidence Act

Produce Document itself (Sec. 91); and No oral evidence can be given –

(i) for varying, adding to, etc. its terms (S. 92).
(ii) to explain a document, on its face, ambiguous (S. 93).
(iii) to show a plain document not meant to apply such facts (S. 94).

Evidence can be given –

(i) to show language of a plain – (but) unmeaning to facts – document is used in a peculiar sense (S. 95).
(ii) to show language used – (though) applies to several persons – in a document apply to one only (S. 96).
(iii) to show language used – (though) applies partly to one set facts and partly to another set – in a document apply to which of the two sets (S. 97).
(iv) to show language used – (though) applies partly to one set facts and partly to another set – in a document apply to which of the two sets (S. 97).
(v) to show the meaning of illegible characters of technical expressions of words used in a peculiar sense (S. 98).

Interpretation of Wills

.(i) Sec. 91 to 99 of the Evidence Act do not affect construction of wills (S. 100).
(ii) Sec. 74 of the Indian Succession Act, 1925, contains the armchair rule. It conveys – intention of the testator is important.

Sec. 93 to 100 Evidence Act read as under:

93. Exclusion of evidence to explain or amend ambiguous document. –– When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.
94. Exclusion of evidence against application of document to existing facts. –– When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.
95. Evidence as to document unmeaning in reference to existing facts. –– When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.
96. Evidence as to application of language which can apply to one only of several persons. –– When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to.
97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies. –– When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.
98. Evidence as to meaning of illegible characters, etc. –– Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense.
99. Who may give evidence of agreement varying terms of document. –– 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.
100. Saving of provisions of Indian Succession Act relating to wills.––Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills

Part III

EXCEPTIONS to the Rule of Irrelevancy of Oral Evidence on Documents

Sec. 92 Evidence Act reads as under:

92. Exclusion of evidence of oral agreement—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

Following are the exceptions in Sec. 92 Evidence Act to the general rule as to bar of oral evidence on contents of documents:

Provisos to Sec. 92:
- 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.

Admission of Contents of Document in Pleadings

In Perumal Chettiar v. Kamakshi Ammal, (1938) 2 MLJ 189, it is observed, as to pleadings, as under:

“The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 (596) : 32 E.R. 1215 (1220) and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488), because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918) 35 M.L.J. 555 : I.L.R. 42 Mad. 41 (F.B.)) This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”

Secondary evidence allowed only when permitted under Sec. 65

Sec. 61 of the Evidence Act directs that the contents of documents may be proved either by primary or by secondary evidence. Sec. 62 says that Primary evidence means the document itself produced for the inspection of the Court.

Sec. 63 lays down the mode of secondary evidence permitted by the Act. It reads as under:

“63. Secondary evidence means and includes—
- (1) Certified copies given under the provisions hereinafter contained;
- (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
- (3) Copies made from or compared with the original;
- (4) Counterparts of documents as against the parties who did not execute them;
- (5) Oral accounts of the contents of a document given by some person who has himself seen it.”

As pointed out earlier, Sec. 64 stipulates that documents must be proved by primary evidence except in the cases mentioned in Sec.65. Clauses (a) to (g) of Sec. 65 delineate the cases in which secondary evidence relating to documents may be given. They read as under:

(a) when the original is shown or appears to be in the possession or power –– of the person against whom the document is sought to be proved, of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1 [India] to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.

Oral Evidence on ‘Sham’ Document

Section 92 of the Indian Evidence Act, 1872 directs exclusion of evidence or oral agreement as to the terms of any contract. But, under the first proviso to Section 92 any fact that may invalidate any document, such as fraud, intimidation, illegality, want of due execution can be led into evidence. It permits the plaintiff to assert that the document was never intended to be acted upon and the document is a sham.

Read Blog: Void, Voidable, Ab Initio Void, and Sham Transactions

The question as to ‘sham’ nature arises only when one party asserts that there has been a different transaction altogether than what is recorded in the document. Oral evidence is admissible in law for that purpose. [See: Placido Francisco Pinto v. Jose Francisco Pinto, 2021 SCC OnLine SC 842. Referred: Smt. Gangabai v. Smt. Chhabubai (1982) 1 SCC 4, and Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595].

In Roop Kumar it is held as follows:

“22. This Court in Gangabai v. Chhabubai [(1982) 1 SCC 4 : AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434 : AIR 2000 SC 426] with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.”

Construction of a Document Raises a Question of Law

In Sir Chunilal V. Mehta v. The Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, it is observed as under:

“Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law.”

In Hero Vinoth Minor v. Seshammal, AIR 2006 SC 2234, it is observed as under:

“It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 CPC. If a document creating an easement by grant is construed as an ‘easement of necessity’ thereby materially affecting the decision in the case, certainly it gives rise to a substantial question of law.”

Part IV

Words in the Instruments Matters; Not to the Presumed Intention

Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:

“I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: VS Talwar v. Prem Chandra Sharma, AIR 1984 SC 664; Damodaram Pillai v. Dhanalakshmi Ammal, (1981) 1 MLJ 171; Thomas v. AA Henry, 2008(2) KLT 63.)

Oral Evidence must be Direct; Hearsay Evidence, Inadmissible

As per the Evidence Act (Sec. 3), ‘evidence’ means and includes oral evidence and documentary evidence. As stated earlier, Sec. 59 of the Evidence Act says that all facts, except the contents of documents or electronic records may be proved by oral evidence. Sec. 60 directs that the oral evidence must be direct.

Best available evidence must be produced; If Not, Adverse Presumption will be Taken

Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld.

But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably (as shown below). Courts take into consideration the pleadings and decide whether the document/evidence withheld has any relevance. The court also cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The conduct and diligence of the other party is also important. Existence of some other circumstances may justify non-production (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).

The rule that best available evidence must be produced is taken in the following cases: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal v. Badkulal, AIR 1953 SC 225; A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413; M/s. Bharat Heavy Electrical Ltd. v. State of U.P., AIR 2003 SC 3024; Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126.

In Mohan Lal Shamlal Soni v. Union of India, AIR 1991 SC 1346, the Supreme Court held as under:

“It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.”

Invoking best evidence rule it is observed by the Supreme Court in Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, as under:

“13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).”

In Jitendra v. State of M.P (2003) our Apex Court observed that charas and ganja seized from the accused was the best evidence in that case and the non-production of the same in court was seriously taken note of by the court and observed that that mere oral evidence as to the same was insufficient. (See also: Mohd. Aman, Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.)

In Tomaso Bruno v. State of U.P, (2015) 7 SCC 178, it is observed as under:

“22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”

With regard to adverse presumption the Apex Court held in Tomaso Bruno as under:

“28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.”

Non examination of the best person as a witness was also taken seriously by our Apex Court in Jagga Singh v. State of Punjab, AIR 1995 SC 135, observing that ‘the best evidence having not been brought on record’ the it would not be justified, ‘to hold that it was the appellant who had done the mischief’.

In Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 also the Apex Court found fault for making no attempt to examine material witnesses and observed that the best evidence which would have been thrown light on the controversy in question was withheld.

Need for placing best evidence in cases of circumstantial evidence is emphasised in Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2019 SC 1 also.

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Oral Evidence on Contents of Document, Irrelevant?

Created: 07 Jul 2024 at 23:29

Oral Evidence on Contents of Document, Irrelevant?

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Oral Evidence on Contents of Document, Irrelevant?

Created: 07 Jul 2024 at 23:29

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Oral Evidence on Contents of Document, Irrelevant?

Does Registration of a Document give Notice to the Whole World?

No Application Needed for Filing or Admitting Copy of Document