Section 92 of Indian Evidence Act 1872: Exclusion of Evidence of Oral Agreement
Section 92 of the Indian Evidence Act, 1872 governed when oral evidence could be used to contradict, vary, add to or subtract from the terms of a written contract, grant or other disposition of property. This article explains the legal position applicable before the Bharatiya Sakshya Adhiniyam, 2023 came into force.
Meaning and object of Section 92
Section 92 operated after the terms of a transaction had been proved in the manner contemplated by Section 91 of the Indian Evidence Act, 1872. Its basic rule was that parties to the instrument, and their representatives in interest, could not use an oral agreement or statement merely to contradict, vary, add to or subtract from the proved written terms.
The provision reflected the principle that where parties deliberately record the terms of their transaction in a document, the document ordinarily provides the authoritative evidence of those terms. The rule was, however, subject to six important provisos permitting evidence in specified circumstances.
Section 92 - statutory rule
Where the terms of a contract, grant or other disposition of property, or a matter required by law to be reduced to a document, had been proved under the preceding section, evidence of an oral agreement or statement was not admissible between the parties to the instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms.
Six provisos to Section 92
Proviso 1 - facts invalidating the document or supporting relief
A fact could be proved if it would invalidate the document or entitle a person to a decree or order relating to it. The section expressly referred to matters such as fraud, intimidation, illegality, want of due execution, incapacity of a contracting party, want or failure of consideration, and mistake of fact or law.
Proviso 2 - separate oral agreement on a matter on which the document is silent
A separate oral agreement could be proved where the document was silent on that matter and the oral agreement was not inconsistent with the written terms. In deciding whether this proviso applied, the court was required to consider the degree of formality of the document.
Proviso 3 - oral condition precedent
A separate oral agreement constituting a condition precedent to the attachment of an obligation under the contract, grant or disposition of property could be proved.
Proviso 4 - subsequent oral rescission or modification
A distinct subsequent oral agreement rescinding or modifying the transaction could be proved. The exception did not apply where the transaction was required by law to be in writing or had been registered under the law relating to registration of documents.
Proviso 5 - usage or custom
A usage or custom by which incidents not expressly mentioned in a contract were ordinarily annexed to contracts of that description could be proved, provided the incident was not repugnant to or inconsistent with the express written terms.
Proviso 6 - relation of documentary language to existing facts
Evidence could be given of facts showing how the language used in the document related to existing facts. This proviso permitted evidence that identified or connected the words of the document with the factual situation to which they referred.
Illustrations to Section 92
The statutory illustrations demonstrate both the exclusionary rule and its exceptions:
- An insurance policy covers goods "in ships from Calcutta to London." If the goods are shipped in a particular ship that is lost, an alleged oral exclusion of that ship from the policy cannot be proved.
- A written promise absolutely requires payment of Rs. 1,000 on 1 March 1873. A contemporaneous oral agreement postponing payment to 31 March cannot be proved.
- A deed selling the "Rampore tea estate" contains a map. Oral evidence cannot be used to add land excluded from the map merely because it had previously been regarded as part of the estate.
- Where A enters into a written mining contract after being induced by B's misrepresentation about the value of the mines, the misrepresentation may be proved.
- Where a party seeks specific performance and reformation of a written contract on the ground that a provision was inserted by mistake, the mistake may be proved where the law permits reformation.
- Where a written order contains an incorrect description of goods due to mistake, evidence relevant to establishing a legally remediable mistake may be proved.
- A written paper merely recording "Bought of A a horse Rs. 500" does not necessarily prevent proof of a separate verbal warranty that the horse was sound.
- Where a simple card states "Rooms, Rs. 200 a month," a verbal agreement that the amount includes partial board may be proved; but a formal, regularly stamped agreement drawn by an attorney and silent about board may make such oral evidence inadmissible, depending on the formality and circumstances.
- If A sends B a receipt while seeking payment of a debt and B keeps the receipt without paying, A may prove the circumstances to show that the receipt was not evidence of actual payment.
- If a written contract is intended to take effect only on a specified contingency and is left with B, A may prove the circumstances in which it was delivered when B sues upon it.
Relationship between Sections 91 and 92
Section 91 dealt principally with how the terms of contracts, grants and other dispositions reduced to writing were to be proved. Section 92 dealt with the further question whether, after those terms had been proved, oral evidence could be admitted between the parties to alter their effect. Reading the two provisions together was therefore essential when dealing with documentary terms and alleged oral arrangements.
Practical scope of the rule
The prohibition in Section 92 was not an absolute ban on all oral evidence connected with a written document. The purpose for which the evidence was offered mattered. Evidence falling within one of the six provisos, including evidence of fraud, mistake, a qualifying condition precedent, a permissible subsequent modification, relevant custom, or facts connecting documentary language with existing facts, could be admissible subject to the requirements of the proviso concerned.
Section 92 specifically addressed evidence between the parties to the instrument or their representatives in interest. Questions involving persons who were not parties to the document also required consideration of Section 99 of the Indian Evidence Act, 1872.
Legal position before the Bharatiya Sakshya Adhiniyam 2023
For proceedings governed by the Indian Evidence Act, 1872 before the commencement of the Bharatiya Sakshya Adhiniyam, the admissibility of oral evidence concerning written contractual or dispositive terms was tested under Sections 91 and 92 and the provisos to Section 92. The precise result depended on the document, the relationship of the parties, the purpose for which the evidence was tendered and whether a statutory proviso applied.
This article is a general explanation of the pre-Bharatiya Sakshya Adhiniyam statutory position and is not a substitute for advice on the facts of a particular dispute.