Of the Exclusion of Oral Evidence by Documentary Evidence

0
218

Of the exclusion of oral evidence by Doc Evidence:  

It is cardinal rule of law of evidence that the best available evidence should be brought before the court. Art 21, 75 and 102 of Q.S.O 1984 are based on this principle.

General Rule:

U/Art. 102 QSO

  1. When the terms of (i) contract (ii) grant or (iii) any disposition of property have been reduced to writing to the form of document; or.
  2. Where any matter is required by law in the form of document.

Then (a) the document itself, or (b) secondary evidence of its contents must be put in evidence.

Applicability of rule:

The moment an oral contract is reduced to writing, it is not open to any of the parties thereafter to seek to prove the terms of the contract by referring to any original oral agreement. Art 102 would stand in his way and he would be precluded from proving the terms of transaction otherwise than by the deed itself.

(Air 1928 Mad 540).

Exception to General rule:

There are two exceptions to this rule.

  1. When the public officer is required by law to be appointed in writing and any officer has acted as such, the writing need not to be proved.
  2. Wills admitted to probate in Pakistan may be proved by probate.

Evidence as to matters in writing.

 

According to Art. 139 of Q.S.O 1984 a party can compel other party to produce a document.

When a witness is about to given evidence as to:

  1.  Contract
  2.  Grant
  3. Other dispositions of property which is contained in a document.

When he is about to make any statement as to the contents of any document.

Legal connotation of the expression terms used in Art. 102 and 103:

Terms of a contract necessarily postulate a contract in existence containing statements in the nature of terms; the expression terms of contract would not apply to a statement contained in a written document which is in the nature of condition precedent to the very formation of that contract; terms must relate to statements, assertions or representations contained in a written contract relating to its subject-matter and to something to be done or not to be done under the contract.

(Air 1972 Bom. 365).

What is contract:

Contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. In other words, it is a promise, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.

Meaning of Grant:

According to black’s law dictionary.

Grant is an agreement that creates a right of any description other than the one hold by grantor e.g., lease, easement, charges or

To give or confer something with or without compensations

Disposition of property – connotation:

The act of transferring property to another’s care or possession by deed or will. 

Exclusion of oral by Doc Evidence: Art 103.

This article is based on the same principle as the proceeding Article, namely superiority of documentary evidence to oral evidence, the grounds of exclusion of oral evidence are:

  1. That to admit inferior evidence when the law requires superior would be to nulling the law.
  2. That when the 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 settlement of their intention and one which must be proceed beyond the reach of future controversy bad faith, or treacherous memory.
    1. Philipson on Evi: 7the Ed. P.552.

Article 103 of the Q.S.O comes into operation only when the terms of any contract, grant or any other disposing of property, or any matter required by law to be reduced to the form of document, have been proved in accordance with Art. 102 by the production of document or by the secondary evidence, where such evidence is admissible. In that case it is provided that no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representative in interest for the purpose of contradictory, varying, adding to, or subtracting from terms of documents.

Exception:

Art. 103 is hedged in by the six provision which are exception to the general rule contained in the main provision; they envisage different situations wherein oral evidence may be admissible even if it contradicts, varies, adds to or subtracts from the terms of contract, grant etc, any oral evidence not falling within the ambit of any of the provisions to that extent is inadmissible.

(1993-1) 41 B.L.J.R 215.

Proviso 1:

The rule of evidence embodied in Art. 103 pre-suppose the validity of the transaction evidenced by the document to which that rules has to be applied. If, therefore, the validity of the transaction is impeached, it is not defence to point to the apparent rectitude of the document evidencing it and to claim protection from inquiry under a rule which exists against the contradiction and variance of terms only of those instruments the validity of which is not in question. The first proviso to this section, therefore, declares that any fact may be proved which would invalidate any document. The facts mentioned in the proviso render an instrument, void or voidable, but the Article is not exhaustive of the facts which have this effect on the validity of instrument.

Fraud & Intimidation

If consent is caused to an agreement by fraud, or the intimidation the agreement is a contract voidable at the option of party whose consent was so caused.

Fraud is a knowing misrepresentation of truth or concealment of material fact to induce another to act to his or her detriment.

Intimidation:

Where consent is caused to an agreement by coercion, the agreement is a contract voidable at the option of the party whose consent was so caused. A will, or any part of the will, the making of which has been caused by coercion, is void.

Illegality:

Under this proviso oral evidence may be given to show that to a transaction embodied in a document is illegal by reason of the fact that its object or consideration is unlawful.

Alice mary Hill U. William Clark 27 A, 266.

Want of due execution:

The law requires certain instruments to be in certain form, e.g., Wills, Gifts etc must be attested by  atleast two witnesses. Under the first proviso to Ar.t 103 facts which affects the due, execution and consequently the legality of an instrument may be given in evidence.

Want of capacity:

Oral evidence may be given to show that a contract or a will is void by reason of its maker being a minor or of unsound mind.

Want or failure of consideration.

The want or failure of consideration referred to in the proviso must be such as to invalidate the document. There should be total lack of consideration relied in it before the terms of contract are contradicted in it.

Mistake of law and fact:

The mistake contemplated by proviso (i) to S.92 are genuine and accidental mistakes: just as mis-description of property.

Air 1930 Pesh 41.

Proviso 2: Separate oral Agreement:

If there is a separate oral agreement as to the matter on which a document is silent, the agreement is provable under this proviso, provided the agreement is not inconsistent with the terms of the document. In considering whether this proviso applies, regard should be had to the formality of document.

Mal Nand Kishore V. Cooper Allen & Co.  1936 A. 717.

Proviso 3: Conditional Instruments:

When at the time of execution of written contract it is orally agreed between the parties that the written agreement shall not be of any force or validity until some condition precedent has been performed, oral evidence of such agreement is admissible to show that the condition has not been performed and that consequently the written has not become binding.

JagtanundMissir Vs. nerghon Singh.6 C 433.

The proviso is based on the English case Pym Vs. Campbell, which is an authority for rule that oral evidence is admissible to prove any collateral verbal agreement to the effect that a document apparently completes and operative on the face, should be conditional upon and not operative until the happening of certain event.

Per Ashworth J.In Lachhman Das V. Ram Prasad, 1927 A. 422.

Proviso 4: Subsequent oral agreement rescinding or varying a contract:

Where an agreement is reduced to writing, it is competent to the parties, at any time before the breach of it, by a new contract not in writing, either to annual the former agreement altogether, or in any manner to add to, subtract from, vary or qualify, the terms of it, and thus to make a new contract, which is to be proved partly by written agreement and partly by the subsequent oral agreement. This general rule, however, is subject  to this limitation that the new oral contract is not provable if the original written contract is such as is required by law to be reduced in writing, or if it has in fact been registered whether it is required by law to be registered or not.

ChandanTha V. Akbar, 110 I.C 261

Proviso 5:Incidents annexed by Usuage or to Contracts:

Usages is admissible to annex unexpressed incidents (provided they are not inconsistent with those which are expressed) to oral or written contract; grants or wills. It being presumed that the parties have not intended to express the whole of their meaning in words but tacitly to adopt the usages of a particular market or place. This rule is not confined to mercantile transaction, but applies to all others in which established usage prevail.

Proviso 6: Surrounding Circumstances:

The principle on which this proviso is based is that, as most documents refer expressly or impliedly to the circumstances under which they were written, the court when called upon to interpret them, should be placed as nearly as possible in the same situation as writer. Therefore, where a written contract is doubtful in its meaning the surrounding circumstances existing at the creation of the contract and the subject- matter to which it was designed and intended to apply can be looked into.

 

Nand Kishore V. BehariLal, 1932 A 600.

SHARE
Previous articleSentence Completion Quiz 1
Next articleEstoppel

LEAVE A REPLY

Please enter your comment!
Please enter your name here