Section 95 BSA 2023 - Exclusion of Evidence of Oral Agreement

Section 95 of the Bharatiya Sakshya Adhiniyam, 2023 governs when oral evidence may or may not be used to contradict, vary, add to, or subtract from the terms of a written contract, grant, disposition of property, or other matter required by law to be reduced to a document.

What Section 95 means

The general rule is that once the terms of a written instrument have been proved under Section 94, the parties to that instrument, and their representatives in interest, ordinarily cannot rely on an oral agreement or statement to contradict, vary, add to, or subtract from those written terms.

The section nevertheless contains important exceptions. Oral or other evidence may still be admissible, for example, to prove fraud, intimidation, illegality, lack of capacity, failure of consideration, mistake, a separate consistent agreement on a matter on which the document is silent, a condition precedent, certain later oral arrangements, relevant usage or custom, or facts explaining how the language of the document relates to existing facts.

Official text of Section 95

Key exceptions under Section 95

• Invalidating facts: Evidence may be given of fraud, intimidation, illegality, want of due execution, lack of capacity, want or failure of consideration, or mistake of fact or law.
• Separate oral agreement on a silent matter: It may be proved if the written document is silent on the point and the oral agreement is not inconsistent with the written terms.
• Condition precedent: A separate oral agreement showing that an obligation would arise only on a specified condition may be proved.
• Later oral rescission or modification: A distinct subsequent oral agreement may be proved, subject to the statutory exception where the transaction is required by law to be in writing or has been registered.
• Usage or custom: A relevant usage or custom may be proved if the incident sought to be annexed is not repugnant to or inconsistent with the express terms.
• Connection of words with facts: Evidence may be given to show how the language of the document relates to existing facts.

Illustrations under Section 95

1. A policy of insurance is effected on goods "in ships from Kolkata to Visakhapatnam". The goods are shipped in a particular ship which is lost. The fact that particular ship was orally excepted from the policy, cannot be proved.
2. A agrees absolutely in writing to pay B one thousand rupees on the 1st March, 2023. The fact that, at the same time, an oral agreement was made that the money should not be paid till the 31st March, 2023, cannot be proved.
3. An estate called "the Rampur tea estate" is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed cannot be proved.
4. A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B's as to their value. This fact may be proved.
5. A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.
6. A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.
7. A sells B a horse and verbally warrants him sound. A gives B a paper in these words - "Bought of A a horse for thirty thousand rupees". B may prove the verbal warranty.
8. A hires lodgings of B, and gives B a card on which is written - "Rooms, ten thousand rupees a month". A may prove a verbal agreement that these terms were to include partial board. A hires lodging of B for a year, and a regularly stamped agreement, drawn up by an advocate, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally.
9. A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this.
10. A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B who sues A upon it. A may show the circumstances under which it was delivered.

Section 95 and Section 94 BSA

Section 94 lays down the rule for proving the terms of contracts, grants, dispositions of property and other matters reduced to documentary form. Section 95 then restricts the use of oral evidence between the parties to alter the terms proved from that documentary record, subject to the provisos stated above.

Application after 1 July 2024 and pending proceedings

Practical takeaway