The Primacy of Documents

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) modernises India’s law of evidence, including the long standing principle that when a fact or agreement is recorded in a document, oral statements cannot be used to contradict or vary it. This rule, contained in the provisions on exclusion of oral evidence by documentary evidence, reinforces the primacy of written and electronic records in proving the terms of transactions and arrangements.

When the terms of a contract, grant, or other disposition of property have been reduced to a document, can oral evidence be given to prove those terms?

No. When the terms of a contract, grant, or any other disposition of property have been reduced to the form of a document, and whenever any matter is required by law to be documented, no evidence may be given in proof of those terms except the document itself or admissible secondary evidence of its contents.

Is proof of appointment in writing necessary when a public officer is shown to have acted in that capacity?

No. When a public officer is required by law to be appointed in writing, and it is shown that a particular person has acted as such officer, the written appointment need not be proved.

How may wills admitted to probate in India be proved?

Wills that have been admitted to probate may be proved by the probate itself.

Does the rule apply to contracts, grants, or dispositions of property that are contained in multiple documents?

Yes. The rule applies equally whether such terms are contained in one document or several documents.

If there are multiple originals of a document, must all originals be proved?

No. Only one original needs to be proved.

Does a statement of a fact in a document prevent oral evidence from being admitted about that fact?

No. A statement of a fact in any document (other than the terms that must be proved by the document itself) does not bar admission of oral evidence of that fact.

If a contract is contained in several letters, must all the letters be proved?

Yes, all letters containing the contract must be proved.

If a contract is contained in a bill of exchange, what must be proved?

The bill of exchange must be proved.

If a bill of exchange is drawn in a set of three, must all be proved?

No. Only one needs to be proved.

If a written contract mentions payment for another transaction done verbally, can oral evidence be given to show that no such payment was made?

Yes. Oral evidence is admissible.

If A gives B a written receipt for money paid, can oral evidence be given to prove the payment?

Yes, the evidence is admissible.

After proving the terms of a document, can oral evidence be given to contradict, vary, add to, or subtract from those terms?

Generally, no. When the terms of a documented contract, grant, disposition of property, or any matter required to be documented have been proved, oral evidence between the parties or their representatives cannot be admitted to contradict, vary, add to, or subtract from its terms.

What facts may still be proved to invalidate or affect a document?

Facts that may invalidate or entitle a party to a decree or order such as fraud, intimidation, illegality, want of due execution, lack of capacity, want or failure of consideration, or mistake of fact or law may always be proved.

Can a separate oral agreement regarding a matter on which the document is silent be proved?

Yes, if the oral agreement is not inconsistent with the terms of the document. The degree of formality of the document will be considered in deciding this.

Can a separate oral agreement constituting a condition precedent to obligations under the document be proved?

Yes, such evidence is admissible.

Can a subsequent oral agreement modifying or rescinding the document be proved?

Yes, unless the document is required by law to be in writing or has been registered.

Can usage or custom be proved to annex incidents to a contract?

Yes, provided such incident is not repugnant to or inconsistent with the express terms of the contract.

Can evidence be given to show how the language of a document relates to existing facts?

Yes, such evidence is admissible.

Can oral evidence be given that a particular ship was excepted from an insurance policy on goods “in ships from Kolkata to Visakhapatnam”?

No, such oral evidence is not admissible.

If a written agreement requires A to pay B on a specific date, can oral evidence be given that payment was orally postponed?

No, such oral evidence cannot be proved.

Can oral evidence be given that land not shown on a map in a sale deed was still intended to pass?

No, such evidence is not admissible.

Can A prove that he was induced into a written mining contract by B’s misrepresentation of the mine’s value?

Yes, this fact may be proved.

Can A prove a mistake in a contract sought to be specifically enforced where reformation is prayed for?

Yes, such a mistake may be proved.

If goods are ordered by letter without mention of payment terms, can A show that credit was agreed?

Yes, A may prove that credit was allowed.

If A sells B a horse with a verbal warranty but gives only a written receipt, may B prove the verbal warranty?

Yes, the warranty can be proved.

If lodgings are hired with a written card stating only rent, can A prove a verbal agreement about partial board?

Yes, in the informal arrangement. But if a formal stamped agreement is made and silent on board, A cannot prove a verbal term for board.

If A sends B a receipt for money due and B keeps it without paying, can A prove this in a suit?

Yes, A may prove it.

If a contract is to take effect on a contingency and the writing is left with B, can A prove circumstances of delivery?

Yes, he may show these facts.

Can evidence be given to explain or amend ambiguous or defective language appearing on the face of a document?

No. If a document’s language is facially ambiguous or defective, evidence cannot be given to explain its meaning or supply defects.

If A agrees to sell a horse for “one lakh rupees or one lakh fifty thousand rupees”, can evidence be given to show which price was intended?

No.

If a deed contains blanks, can evidence be given to show how they were meant to be filled?

No.

When a document’s language is plain and applies accurately to existing facts, can evidence be given to show it was intended to apply differently?

No. Evidence cannot be given to show that it was not meant to apply to such facts.

If A has an estate at Rampur of 100 bighas and sells “my estate at Rampur containing 100 bighas”, can evidence show that some other land was intended?

No, such evidence is not admissible.

When a document’s language is plain but meaningless with reference to existing facts, can evidence be given to show a peculiar meaning?

Yes. Evidence may be given to show the language was used in a special sense.

If a deed conveys “my house in Kolkata” but A has no house in Kolkata and B has been occupying A’s house in Howrah, can these facts be proved?

Yes, to show that the deed referred to the Howrah house.

When language could apply to one of several persons or things, can evidence be given to show which was intended?

Yes. Evidence may be given to identify the intended person or thing.

If A has two white horses and agrees to sell B “my white horse”, can evidence be given to show which one?

Yes.

If A agrees to accompany B to Ramgarh, can evidence show which Ramgarh (in Rajasthan or Uttarakhand) was meant?

Yes.

When language applies partly to one of two sets of facts and partly to another, can evidence show which was intended?

Yes. Evidence may be given to identify the intended subject matter.

If A agrees to sell “my land at X in the occupation of Y” but has land at X not occupied by Y and land occupied by Y not at X, can evidence determine which land was meant?

Yes.

Can evidence be given to explain illegible, obscure, foreign, technical, or special expressions?

Yes. Evidence may be given to explain illegible characters, uncommon expressions, abbreviations, technical or local terms, or words used in a special sense.

If A, a sculptor, agrees to sell B “all my mods”, and A has both models and modelling tools, can evidence be given to show which was intended?

Yes.

May a person who is not a party to a document give evidence of a contemporaneous oral agreement varying its terms?

Yes. Persons who are not parties (or their representatives) may give evidence of such facts.

If A and B make a written contract for sale of cotton payable on delivery but also make a contemporaneous oral agreement for three months’ credit, can C prove this oral agreement if it affects his interest?

Yes, C may prove it, though A and B cannot do so between themselves.

Therefore, the BSA strengthens the reliability of documentary proof while allowing oral evidence only in limited, clearly defined situations. By prioritising written and electronic records, the law enhances certainty in litigation and reduces disputes based on unverifiable oral claims ensuring a more consistent and objective evidentiary process.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.