The paper discusses the well renowned and celebrated doctrine of evidence law, i.e. the rule of best evidence. The paper dwells deep into the provisions of the Indian Evidence Act, 1872 and takes the assistance of judicial precedents to correctly interpret the facets of this rule. This paper is written in a fashion thereby, laying special emphasis upon documentary evidence. In the paper, the author endeavours to analyse the behaviour of the exceptions (including extrinsic evidence) to this rule and their impact on the rule itself.
`Among a copious of doctrines evolved over the period of time, the common law principle of best evidence remains the cornerstone of the Indian Evidence Act, 1872 (hereinafter referred to as “Act”). Indigenously known as the Original Document Rule, its foundation was laid down in the English case of Ford v. Hopkins, where the Court first applied this rule and made the proponent of evidence related to contents in a written document liable to either produce the original document or provide credible reasons for its non-production.
Oral and documentary evidence are two major kinds of evidence which may be further divided into sub-categories like corroborative evidence, hearsay evidence, direct and indirect evidence etc. Chapter IV of Part II of the Act, comprising section 59 and 60, deals with proof of oral evidences. As a general rule, oral evidence by a witness is admissible if he has direct and personal knowledge of the fact deposed by him.
Although, in the case of documentary evidence which is defined under section 3 of the Act, the Act classifies documents into two types, i.e. a) “public documents” under section74, and b) “private documents” under section 75 of the Act. In general parlance, while operating on the presumption that tampering with public documents is far less as it has come from a reliable source as compared to private documents, the courts have a tendency to accept public documents more readily than private documents. Section 35 of the Act recognises the entries under public documents as relevant facts upon fulfilment of requisites mentioned therein.
To ascertain whether extrinsic evidence and other exceptions mentioned in the provisions of the Act are inherent limitations to the rule of best evidence.
Rule of Best Evidence- As it is
The rule of the best evidence isn’t explicitly mentioned anywhere in the Act. However, as per various judgements of the Indian courts, its presence in the Act can be very well ascertained by reading section 64 of the Act. In Malay Kumar Ganguly v. Sukumar Mukherjee, it was observed that section 64 of the Act lays down the best evidence rule with reference to documentary evidence. S.64 of the Act reads, “Documents must be proved by primary evidence except in the cases hereinafter mentioned.”
Section 91 of the Act
But, it’s actually section 91 of the Act which provides teeth to this doctrine. In simple language, section 91 provides that, in all cases where the matter is required by law to be reduced in document(s), no evidence is required to be given for proof except the document itself when evidence related to terms of contract, grant or other disposition of properties (hereinafter referred to as “instrument”) is reduced to a document. It suggests that the best evidence about the contents of a document is the document itself and thus, the contents of the contract are only to be proved by producing the document. In Bhawanbhai Premabhai v. Bai Vahali, the court observed that one necessary prerequisite for the application of s.91 is the presence of the instrument between the parties, as if there is no instrument between them, section 91 wouldn’t apply.
Factum of Instrument
Section91, as mentioned above, prohibits the reception of evidence in proof of terms of a document. But, as laid down in Ram Chetty v. Panchammal, it doesn’t prohibit the reception of evidence for proving the mere existence of the instrument itself. Deep Chandra v Ruknuddaula Shamsher Jang Nawab, it was held that the rule contained under section 91 applies to the terms of the instrument and not to the factum of a contract and thus, the evidence in proof of factum of an instrument is not excluded.
Primary and Secondary Evidence
Section 91 operates by making a distinction between primary and secondary evidence. Primary evidence is that which is called as the best evidence, or that kind of proof which under any possible circumstances, affords the greatest certainty of the fact in question. On the other hand, secondary evidence is not the best evidence but is evidence of secondary nature and is admitted in exceptional circumstances.
To clearly ascertain as to what distinguishes these two types of evidences from each other, one may look at section 62 and 63 of the Act. The primary evidence, as per section 62 of the Act, means the document itself produced for inspection of the court. Via its explanation-1, section 62 further provides that where the document is executed in several parts, each part is primary evidence, whereas, each counterpart is primary evidence as against the parties executing it when a document is executed in counterpart.
Section 63 of the Act exhaustively defines secondary evidence and provides that secondary evidence means and includes:
- “Certified copies given under the provisions hereinafter contained;
- Copies made from the original by mechanical processes;
- Copies made from or compared with the original;
- Counterparts of documents as against the parties who did not execute them;
- Oral accounts of the contents of a document given by some person who has himself seen it.”
Explanations to Section 91
It is pertinent to mention here that explanation I to this provision provides that s.91 applies equally, whether an instrument is comprised in a single document or in more documents than one, while explanation II provides that when there are two or more originals than only one of them has to be provided before the Court.
The general rule laid down in section 91 is that when the contents of a writing are to be proved, the writing itself must be produced, but when its absence is accounted for, secondary evidence may be given, and such secondary evidence must be provided in accordance with the rules laid down in section 65 of the Act. However, section 91 provides two exceptions to this general rule, which are:
Exception-1: When law requires a “public officer” to be appointed in writing, and when it is shown that a particular person has acted as such officer, the writing by which he was appointed needn’t be proved. Only thing need to be proved is the fact that he worked under the capacity of “public officer”.
Exception-2: In India, when a probate has been obtained on the basis of a Will and afterwards question arises about existence of that will, the mere production of the probate may prove the existence of the Will without producing original Will.
The rationale behind section 91 in conferring paramount importance to documentary over oral evidence was explained by the Allahabad High Court in Raja Ram when it observed that it’s a matter of both principle and policy that such a paramount position has been given to documentary evidence. Matter of principle because such instruments are in their own nature entitled to a much higher degree of credit than oral evidence and matter of policy because it would be attended with great mischief if those instruments upon which man’s right depended were liable to be impeached by loose and uncertain parole evidence.
Exceptions to the Rule of Best Evidence and Section 92
The rule expounded under section 91 and 92 is exclusive in nature inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where they provide a leeway for adduction of secondary evidence. Section 92 of the Act imposes a bar on admission of oral evidence for “contradicting, varying, adding to, or subtracting from” the terms of an instrument, where it has been proved in accordance with the mandate laid down under section 91. Section 92 comes in operation for the purpose of excluding any oral evidence only when the document has been produced to prove its terms under section 91.
The Bombay High Court very succinctly explained the relationship between s.91 and s.92 of the Act which is worth mentioning here. It observed that s. 91 and 92 supplements each other so much so that section 91 would be frustrated without the aid of s.92 whereas s.92 would be imperative without section 91. The two provisions, however, differ in some material particulars, for instance, while s.91 applies to all documents whether they purport to dispose of rights or not, section 92 applies only to documents which can be described as dispositive. Similarly, s.91 applies to both bilateral and unilateral documents, unlike section 92 whose application is confined to the former. Most importantly, unlike s.91 which lays down the rule of universal application and isn’t confined to executant(s) of the instrument, s.92 applies only between the parties to the instrument and those claiming under them.
Nonetheless, the following provisos under s.92 furnish six exceptional species of facts where oral evidence may be adduced by the executant(s) of the instrument in question to “contradicting, varying, adding to, or subtracting from” the terms of an instrument:
Proviso-1: Any fact which would invalidate any document or which would entitle any person to any decree or order relating thereto fraud, intimidation, or illegality etc.
Proviso-2: Existence of any separate oral agreement regarding any matter on which document is silent and which isn’t inconsistent with the terms of document.
Proviso-3: Existence of any separate oral agreement constituting a condition precedent which attaches any obligation under any such instrument.
Proviso-4: Existence of any separate oral agreement subsequent to entering into the contract to rescind or modify any such instrument.
Proviso-5: Any usage or custom not mentioned in any contract which is usually annexed to contract, though, it shouldn’t be inconsistent with the contract.
Proviso-6: Any fact which shows in what manner the language of a document is related to existing facts. (Extrinsic evidence of surrounding circumstances)
S.91 merely prohibits the oral evidence to prove the contents of the document, but it’s completely silent qua whether or not the terms of a document could be varied by proof of oral evidence. That’s where the provisos of s.92 come into play, i.e. if any fact falls into any of the abovementioned provisos, then general mandate in s.92 won’t apply and oral evidence would accordingly be admitted to the effect that it may “contradicting, varying, adding to, or subtracting from” the terms of an instrument.
Extrinsic Evidence and Ambiguous Documents
It would be unfair to not review extrinsic evidence while discussing the rule of best evidence. The object of extrinsic evidence which is admissible through the route mentioned in Proviso-6 of s.92, is to ascertain the real intentions of the parties by establishing a relationship between the terms of document and previous as well as subsequent conduct of parties in respect of the instrument, but those intentions of the parties must be gathered from the language of the document as explained by extrinsic evidence.
Extrinsic evidence is admissible under Proviso-6 only when the language of the document or of any condition therein is ambiguous and provides more than one meaning of the language used in document. In Baleshwar Prasad Choudhary v Lal Bahadur Prasad Choudhary, the Patna High Court observed that no extrinsic evidence can be given if the instrument doesn’t suffer from any kind of ambiguity and the terms of the document are perfectly clear.
Extrinsic evidence may be given, as per s.98 of the Act, so as to show the meaning of illegible or not commonly intelligible characters, of foreign or technical expressions and of abbreviations or words used in a peculiar sense. Section 99 of the Act enables not only the parties to the suit but non-parties along with the representatives of parties as well to “give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.”
Operating as an exception to Proviso-6 of s.92, s.93 of the Act deals with patent ambiguity and provides that no oral evidence can be given when language used in document is ambiguous on its very face and no definite meaning can be given to it. A patent ambiguity is where the language of document is so uncertain that no meaning can be given to the document. In other words, patent ambiguity makes the document completely useless and thus no oral evidence can be given to remove patent ambiguity from the document.
In Food Corporation of India v. Birendra Nath Dhar, there was a document between the parties which contained a contract for transportation of food grains for two years. But, the place where the amount of transportation was to be mentioned was left blank. The minimum wage to be paid was not mentioned in the blank space where it should have been mentioned and the contractor was giving a different amount. Court didn’t allow admission of any oral evidence under s.93 of the Act to fill up the blanks in the document.
Latent ambiguity, on the other hand, is such where the language of the document though certain and meaningful but it’s not related to circumstances of the case. Gerald Dworkin succinctly explains the admissibility of extrinsic evidence in case of latent ambiguity by observing:
“If the meaning of the word or phrase or sentence is clear, extrinsic evidence is not admissible. It is only when there is latent ambiguity that extrinsic evidence in the shape of interpreting statement in which both parties have concurred should be admissible. The parties themselves might not have been clear as to the meaning of the word or phrase when they entered into the contract. Unanticipated situations might arise or come into the contemplation of the parties subsequently which would sharpen their focus and any statement by them which would illuminate the darkness arising out of the ambiguity of the language should not be shut out. In the case of an ambiguous instrument, there is no reason why subsequent interpreting statement should be inadmissible.”
Ss.95, 96 and 97 of the Act deal with latent ambiguity in the document and in Pradeep Kumar v. Mahaveer Prasad, the court had expressly held that extrinsic evidence can be given in case of latent ambiguity.
S.95 of the Act provides that evidence may be given to show that language of document was used in a peculiar sense when language used in a document despite being plain in itself is not meaningful in reference to existing facts. Whereas, s.96 of the Act provides that evidence may be given to rectify the latent ambiguity in the document when the language in the document is used in such a manner that it’s meant to apply to any one of several persons or things and could not have been meant to apply to more than one of those persons or things. For instance, if X agrees to sell to Y, for Rs.2000, “my black watch”. Now, X has two black watches. Therefore, oral evidence may be given of facts which show which of them was meant. S.97 of the Act provides that, “When the language used applies partly to one set 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.”
In Abdulla Ahmed v. Animendra Kissen Mitter, Supreme Court said that extrinsic evidence to determine the effect of an instrument is permissible where there, remains a doubt as to its true meaning and that evidence of the acts done under it is a guide to the intention of the parties, particularly, when acts are done shortly after the execution of the instrument.
There are various exceptions to the rule of best evidence contained under s.92-98 of the Act. However, from the above-mentioned discussion, it is observed that these exceptions don’t act as a hindrance to the application of the rule of best evidence, for these exceptions, on the contrary, supplement it, so much so, that they nurture the very application of this doctrine. It is, therefore, suggested that these rules must not be construed as inherent limitations to the rule of best evidence which is enshrined under s.91 of the Act, instead, these exceptions including extrinsic evidence are an addendum to this principle, inasmuch as they assist this rule in pulling out the probable frauds or manifest absurdities under the guise of application of this rule by dishonest parties and litigants to the suit or proceeding.
As it has been rightly observed [in another context] by the Apex Court in the case of A.V Papayya Sastry v. Government of Andhra Pradesh,
Even the most solemn proceedings stand vitiated if they are actuated by fraud. The legal doctrines cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent persons.
Thus, at best the exceptions to the rule of best evidence may be construed as the partisans of this rule in its crusade to stimulate the law of procedure.
Be it as it may, but now the term “best evidence” is exclusively associated with the rule of best evidence. That being said, whenever the contents of a writing are now produced before any court, the proponent is required to submit the writing itself, as the presence of an existing valid agreement is given enormous significance. It is concluded that the rule of best evidence is incomplete without the exceptions mentioned in the provisions as those exceptions lie at its very heart. In view of the aforesaid discussion, it wouldn’t be wrong to say that the linchpin the rule of best evidence is the stalwart of the due process model of criminal jurisprudence.
About the Author: Devansh [2018-23] is pursuing BBA.LL.B at Vivekananda Institute of Professional Studies, New Delhi.