Section 102 BSA 2023: Who May Give Evidence of Agreement Varying Terms of Document
Section 102 of the Bharatiya Sakshya Adhiniyam, 2023 deals with evidence by a person who is not a party to a document, or a representative in interest of such a person, regarding a contemporaneous agreement that varies the terms recorded in the document.
Text and meaning of Section 102
Section 102 provides that persons who are not parties to a document, or their representatives in interest, may give evidence of facts tending to show a contemporaneous agreement varying the terms of that document.
In practical terms, the section creates an important distinction between the parties to a written instrument and third persons. A third person whose interests are affected is not necessarily prevented from proving a contemporaneous arrangement merely because the written document records different terms between the parties.
What does Section 102 mean?
The provision applies where a written document records the terms of a transaction, but a person outside that document claims that another agreement existed at the same time and that the additional agreement affects that person's interests. Such a non-party may lead evidence of facts showing the contemporaneous agreement, subject to the general rules of relevance, admissibility and proof under the BSA.
Who may rely on Section 102?
- A person who is not a party to the document.
- A representative in interest of such a non-party.
- The person must rely on facts tending to show a contemporaneous agreement varying the document's terms.
- The evidence must still satisfy the other applicable provisions of the Bharatiya Sakshya Adhiniyam, 2023.
Statutory illustration explained
A and B enter into a written contract under which B is to sell cotton to A and payment is due on delivery. At the same time, A and B orally agree that A will receive three months' credit. The contemporaneous oral arrangement cannot ordinarily be set up by A or B against the written terms in the manner described by the illustration. However, C may prove that arrangement if C is a non-party and the arrangement affects C's interests.
Why is Section 102 important?
Documentary evidence ordinarily carries special importance when the terms of a transaction have been reduced to writing. Section 102 protects the position of third persons by making clear that the rules restricting variation of documentary terms between the contracting parties do not automatically shut out relevant evidence from persons who were not parties to the document.
Key points for legal use
- Identify whether the witness or claimant is a party to the document or a genuine non-party.
- Show that the alleged agreement was contemporaneous with the document.
- Explain how the varying agreement affects the non-party's legal or factual interests.
- Read Section 102 with the surrounding provisions in Chapter VI dealing with documentary terms and oral evidence.
- For proceedings governed by the current evidence law, cite the Bharatiya Sakshya Adhiniyam, 2023 rather than the repealed Indian Evidence Act, 1872, subject to applicable savings and transitional provisions.
Official resources
For the authoritative text and current legislative record, see India Code - The Bharatiya Sakshya Adhiniyam, 2023 and the Ministry of Home Affairs - New Criminal Laws.
Related BSA provisions
Continue with Section 101 - Evidence as to meaning of illegible characters, etc. or Section 103 - Saving of provisions of Indian Succession Act relating to wills.