Difference between Oral Evidence and Documentary
Evidence.
S.No
Oral Evidence Documentary Evidence
.
When a document is produced before
Oral evidence means the statements
the court then such document is
1. which are given by a witness before
considered as documentary
the court.
evidence.
It is the statement of a witness in oral It is a statement submitted through
2.
form. the documents.
The documents are composed of
In the oral evidence are stated through
words, signs, letters, figures and
3. voice, speech or symbols for its
remarks and submitted before the
recording before the court.
court.
The provisions related to the
The oral evidence is discussed documentary evidence has been
4. under section 59 and section 60 of discussed under section
the Indian Evidence Act. 61 to section 66 of the Indian
Evidence Act.
The oral evidence is required to be
The contents of the documentary
direct and it becomes doubtful if the
5. evidence need to be supported by
statement contradicts with the
primary or secondary evidence.
previous statement.
Exclusion of oral evidence by documentary
evidence
Evidence reduced in the form of document
Section 91 of the Indian Evidence Act, 1872 lays down the provision that when
evidence related to contracts, grants and other depositions of the property is
reduced as a document, then no evidence is required to be given for proof of those
matters except the document itself. In the cases where the secondary evidence is
admissible then such secondary evidence is admissible.
There are certain kinds of contracts, grants and other depositions which can be created
orally and they do not require any document.
Illustration
A sells his Dog for Rs. 100 to B: In this case no written deed is compulsory.
B wants to mortgage the dog for Rs. 100 to C: No written deed is mandatory.
B pays Rs. 100 to C and takes back the possession of the dog.
All of the above-mentioned transaction will be valid even without a written
deed.
But, there are many documents and matters of the court which are considered
mandatory by the law to be in writing and registered. e.g., sale deed.
Explanations under Section 91
The explanations of section 91 state that it is not necessary for a written document
to be comprised in a single document. A contract or grant which is executed
can be in a single document or can be comprised of several documents. Section
91 applies in both conditions i.e., whether the contracts are comprised of a single
document or in several documents.
Another explanation laid down under section 91 is that when there is more than one
original document, then only one of them is required to be presented before
the court.
Section 92 of the Indian Evidence Act lays down the provision that when as laid down
under section 91 the documents which are required to be in writing such as the terms
of the contract, grant or other deposition of property or any other matter required by
the law in writing then the court cannot allow being lead by oral evidence to the
party contract or legal representative for the purpose of contradicting,
varying, addition or subtraction from the contract.
Section 92 comes into operation when the documents have been submitted under
section 91 for the purpose of contradicting, varying, addition or any modification from
its terms.
Section 92 of the Act clarifies itself that only such oral arguments are excluded which
contradicts the terms of contract, deposition or any other matter required to be in
writing. If such a document is not a contract, grant or deposition of property,
then the oral evidence can be included to vary its content.
Rules to be followed for the exclusion of oral evidence by
documentary evidence
The admission of the oral evidence for proving the contents of a document is
excluded under section 91 except where the secondary evidence is considered
admissible. The oral evidence is also excluded under section 92 for contradicting the
terms of a contract where the deed is proved.
In the case of Tahuri Shal v. Jhunjhunwala, a law does not make the adoption
to be in writing mandatory. The deed of adoption is just a record of the fact adoption
has taken place. No rights are created by it. It is no more than a piece of evidence and
when a party fails to produce it, the law does not bar him from producing oral evidence.
Exceptions to Section 91
Exception 1: Appointment of a public officer by the way of writing
As per the general rule, to prove the content of a writing, the writing itself is required
to be produced before the court and in case of its absence, secondary evidence may be
given. But, there is an exception to this rule.
When a public officer is appointed and the appointment is required to be made in
writing and if it is shown before the court that some person has acted as the
officer by whom the person has been appointed, then the writing by which he
has been appointed needs not to be proved.
Illustration
A question arises whether A is a judge of the High Court, then the warrant of
appointment is not required to be proved. The fact that he is working as a judge of
the High Court will be proved.
The fact that a person is working in the due capacity of his office is also evidence of
that person’s appointment in the office.
Exception 2: When probate has been obtained on the basis of a will
The term “probate” stands for the copy of a certificate with the seal of the court
granting administration to the estate of the testator.
Another exception of the general rule of the writing to be produced itself is that when
on the basis of will, probate has been obtained and if later, the question arises
on the existence of that will, the original will is not required to be produced
before the court.
This exception requires to prove the contents of the will by which the probate is
granted.
The probate copy of the will is secondary evidence of the contents of the original
will in a strict sense but it is ranked as primary evidence
Evidence of oral agreement excluded
Section 92 The court cannot allow being lead by oral evidence to the party
contract or legal representative for the purpose of contradicting, varying,
addition or subtraction from the contract.
Section 92 is applicable only to the parties to the instrument and not to the
person who is a stranger to the instrument.
In the case of Ram Janaki Raman v. State, it was held by the court that the bar
laid down by section 92 of the Act was not applicable under the Criminal
proceeding.
Proviso(1): The facts which invalidate the document
If a fact will invalidate the contact then no man is debarred from proving that fact.
According to the laws of contract, any contract which is created by fraud or undue
influence, it is not enforceable and considered invalid. So, such facts are easy to
prove in the circumstances when the contract has been reduced into written form.
Proviso(2): Separate oral agreements
The term separate oral arguments in this context refer to the oral agreements made
before entering into the documents.
The contemporaneous or prior oral agreements are referred to under Proviso (2)
of section 92.
When there is a prior oral agreement on a matter about which the document is silent,
then it can be proved only when such terms of oral agreements are not in
contradiction with the terms of the contract.
So, as held in the case of Bal Ram v. Ramesh Chandra, the requirements of this
proviso are:
1. On the matter on which the document is silent, a separate oral agreement
should be related to it.
2. Such oral agreement should not be inconsistent with the terms of the
document.
Proviso (3): Separate Oral Argument as a condition precedent
The situation when an oral agreement is to the effect
that it will not be effective or
will not be enforced unless a condition precedent is fulfilled or
unless a certain event takes place,
the oral agreements are admissible in this case to show that as such condition has
not been performed, the contract was not enforceable.
Proviso (4): Distinct oral agreement made subsequently to renew or
modify the contract.
To prove any subsequent oral agreement leading to alteration of terms of all
the written contracts except to the contracts which are required to be in writing by law
evidence can be given.
When a transaction is reduced to writing
which is not required by law to be in writing
but the agreement is made for the convenience of parties
then an oral agreement made subsequently to modify it is admissible.
Proviso (5): Any usage or customs by which incidents not
mentioned in any contract are usually annexed to contract
Parol evidence of usage and customs are always admissible.
When the object is to make intelligible before the court about the meaning in which
the parties have used a parol evidence may be given to prove any local custom of the
general application, so that it may be applied to the subject matter of the contract and
bind the parties to the written contract unless such usage or custom is inconsistent with
the writing.
Proviso(6): Extrinsic evidence of surrounding circumstances
Whenever a document is required to be proved before the court, its object is to
endeavour and ascertain its real meaning and the extrinsic evidence are
necessary for this purpose. The object of admissibility of the evidence of the
surrounding circumstances is to ascertain the real evidence of the parties but from the
language of the document, the intentions of parties must be gathered as
explained by extrinsic evidence.
