Section 91 of Indian Evidence Act 1872: Evidence of Terms of Written Contracts, Grants and Property Dispositions

Section 91 of the Indian Evidence Act, 1872 states the basic rule for proving the terms of a contract, grant or other disposition of property when those terms have been reduced to writing, and for proving a matter which the law requires to be in documentary form.

What does Section 91 mean?

Section 91 embodies the rule that where the terms of a transaction have been reduced to a document, the terms ordinarily must be proved by producing that document itself. Where the law permits secondary evidence of the contents of the document, such secondary evidence may be given in accordance with the provisions governing secondary evidence.

Text and substance of Section 91

The section therefore concerns the method of proving the terms of a documented transaction. It should be read with the provisions of the Indian Evidence Act dealing with primary and secondary documentary evidence and with Section 92, which deals with exclusion of oral agreement evidence in specified circumstances after the terms have been proved.

Essential elements of Section 91

• The rule applies to the terms of a contract, grant or other disposition of property that have been reduced to a document.
• It also applies where any matter is required by law to be reduced to the form of a document.
• The document itself is the normal evidence of its terms.
• Secondary evidence may be used only in cases in which the Act permits secondary evidence of the document's contents.
• The rule is directed to proof of the terms recorded in the document; it does not make every fact merely mentioned in a document incapable of being proved by oral evidence.

Exceptions under Section 91

Exception 1 - Appointment of a public officer

Where a public officer is required by law to be appointed in writing and it is shown that a particular person has acted as that officer, the written instrument by which the officer was appointed need not be proved.

Exception 2 - Wills admitted to probate

A will admitted to probate in India may be proved by the probate. The exception allows the probate to serve as the mode of proof contemplated by the section.

Explanations to Section 91

Explanation 1 - One or several documents

The rule applies whether the contract, grant or disposition of property is contained in a single document or in more than one document. If several documents together contain the transaction, the relevant documents must be proved as required by law.

Explanation 2 - More than one original

Where there are several originals of the same document, proof of one original is sufficient.

Explanation 3 - Statements of collateral facts

A statement in a document about a fact other than the terms or matters to which Section 91 applies does not, merely because it appears in the document, prevent oral evidence from being given about that fact.

Illustrations to Section 91 explained

1. If a contract is contained in several letters, all the letters containing its terms must be proved.
2. If a contract is contained in a bill of exchange, the bill of exchange must be proved.
3. If a bill of exchange is drawn in a set of three, only one of the originals needs to be proved.
4. If a written contract for delivery of indigo also mentions payment for a different earlier oral transaction, oral evidence may be given to show that the earlier payment was not in fact made. That payment is a collateral fact rather than a term required to be proved exclusively by the written contract.
5. If A gives B a receipt for money paid by B, oral evidence of the payment is admissible. The receipt records the fact of payment; Section 91 does not necessarily make the receipt the exclusive means of proving that payment.

Section 91 and Section 92: the distinction

Section 91 primarily addresses how the terms of a transaction reduced to writing are to be proved. Section 92 operates at the next stage and regulates the use of oral evidence to contradict, vary, add to or subtract from the terms of certain written instruments once their terms have been proved, subject to the provisos and other rules contained in that section.

Practical legal effect

When a party relies on the terms of a written agreement, deed, grant or other disposition covered by Section 91, the first question is whether the original document can be produced. If not, the party relying on its contents must establish a legally recognised basis for secondary evidence before attempting to prove those contents by a substitute form of evidence.

Section 91 is thus a rule about documentary proof. Its purpose is to require the best legally prescribed evidence of terms that the parties, or the law, have placed in documentary form, while preserving the statutory situations in which secondary evidence and evidence of collateral facts remain admissible.

Legal position before 1 July 2024

The Indian Evidence Act, 1872 governed this subject before commencement of the Bharatiya Sakshya Adhiniyam, 2023. The later enactment repealed the 1872 Act on commencement, but its repeal-and-savings provision preserves the earlier Act for applications, trials, inquiries, investigations, proceedings and appeals that were pending immediately before commencement, as specified in that saving provision.