U3Q1_Explain cases in which secondary evidence
relating to documents may be given
Table of contents
I) Introduction
II).Understanding Secondary Evidence
III).Cases in which secondary evidence relating to
documents
IV).Case laws
V).Diff b/w Primary and Secondary Evidence
VI).Conclusion
1) Introduction
Evidence means the testimony, whether the oral,
documentary or a real which may be legally received, in
order to prove or disprove some fact in dispute. There
are various kinds of evidence such as direct evidence,
indirect evidence, real, personal evidence, original
evidence, hearsay evidence, primary and secondary
evidence, oral evidence, documentary evidence, judicial
evidence, non-judicial evidence. Section 62 and 64 of
the Indian Evidence Act 1872 deals with Primary
Evidence while section 63, 65 and 66 of the said Act
deals with Secondary Evidence.
II).Understanding Secondary Evidence
2.1).Primary vs Secondary evidence
Section-62 of the Indian Evidence Act, 1872 deals with
primary evidence and Section 63 of the said Act deals
with secondary evidence.
According to Section 62 of the Indian Evidence Act
1872 primary evidence means the document itself
produced for the inspection of the Court. Primary
evidence is that which the law requires to be given first
and the Secondary evidence is that such can be given in
the absence of the primary evidence. According to
Section 63 of the Indian Evidence Act, copies made and
compared with the originals or photostat copies may be
treated as secondary evidence.
2.2).Meaning of Secondary Evidence
Section 63 of the Indian Evidence Run as follows -
Secondary evidence means and includes -
1. Certified copies given under the provisions hereinafter
contained;
2. Copies made from the original by mechanical
processes which in themselves insure the accuracy of the
copy and copies compared with such copies;
3. Copies made from or compared with the original;
4. Counterparts of documents as against the parties who
did not execute them;
5. Oral accounts of the contents of a document given by
some person who has himself seen it.
2.3).Illustrations
(a) A photograph of an original is secondary evidence of
its contents, though the two have not been compared, if
it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by
copying machine is secondary evidence of the contents
of the letter, if it is shown that the copy made by the
copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards
compared with the original, is secondary evidence, but
the copy not so compared is not secondary evidence of
the original, although the copy from which it was
transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the
original, nor an oral account of a photo graph or machine
copy of the original, is secondary evidence of the
original.
III).Cases in which secondary evidence relating to
documents
[Circumstances under which secondary evidence is
permissible]
Section 65 of the Indian Evidence Act, 1872 provides for
the circumstances in which secondary evidence is
admissible.
Secondary evidence may be given of the existence,
condition or contents of a document in the following
cases:
(a) When the original is shown or appears to be in the
possession or power of the person against whom the
document is sought to be proved, or of any person out of
reach of, or not subject to, the process of the Court, or of
any person legally bound to produce it, and when, after
the notice mentioned in Section 66(IEA), such person
does not produce it;
(b) When the existence, condition or contents of the
original have been proved to be admitted in writing by
the person against whom it is proved or by his
representative in interest;
(c) When the original has been destroyed or lost, or
when the party offering evidence of its contents cannot,
for any other reason not arising from his own default or
neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be
easily movable;
(e) When the original is a public document;
(f) When the original is a document of which a certified
copy is permitted by this Act, or by any other law in
force in India to be given in evidence;
(g) When the originals consist of numerous accounts or
other documents which cannot conveniently be
examined in Court, and the fact to be proved is the
general result of the whole collections.
In cases (a), (c) and (d), any secondary evidence of the
contents of the documents is admissible. In case (b), the
written admission is admissible. In case (e) or (f), a
certified copy of the document, but no other kind of
secondary evidence, is admissible. In case (g), evidence proving the facts before a court of law and helps in the
may be given as to the general result of the documents delivery of justice. The Indian Evidence Act covers the
by any person who has examined them, and who is concept of secondary evidence elaborately, including its
skilled in the examination of such documents. meaning, what can be included under it, and when it can
be presented in place of primary evidence.
IV).Case laws
Ashok Dulichand Vs. Madahavlal Dube and Anr [1976]
1 SCR 246 = Accepted secondary evidence
Rakesh Mohindra vs. Anita Beri and Ors (2016) 16 SCC
483 = Not Accepted secondary evidence

V).Distinction between the Primary and Secondary

Evidence
https://www.srdlawnotes.com/2016/12/difference-
between-primary-evidence-and_15.html
# Primary Evidence Secondary Evidence
1 Primary Evidence is Secondary Evidence is
original document the document which is
which is presented to not original document
the court for its but those documents
inspection. which are mentioned in
Section.63.
2 It is the main source It is an alternative source
of Evidence. of Evidence.
3 Section 62 of the Section 63 of the Indian
Evidence Act defines Evidence Act defines
Primary Evidence Secondary Evidence
4 Primary Evidence is Secondary Evidence is
the best Evidence not best evidence but is
evidence of secondary
nature and is admitted in
exceptional
circumstances mentioned
in Section 65.
5 Giving Primary Giving Secondary
Evidence is general Evidence is exception to
rule. the general rule.
6 Primary Evidence Secondary Evidence is
itself is admissible. admissible in the absence
of the Primary Evidence.
7 No notice required Notice is required to be
before giving Primary given before giving
Evidence. Secondary Evidence.
8 The value of Primary The value of Secondary
Evidence is highest. Evidence is not that of
Primary Evidence

VI).Conclusion
Secondary evidence is not considered to be the best form
of evidence. It is usually presented in exceptional
circumstances where primary evidence is not available.
However, this cannot belittle its significance in proving
certain facts. There are a number of instances where in
the presence of primary evidence is not possible. In such
circumstances, secondary evidence plays a crucial role in

U3Q2_Explain provisions relating to exclusion of oral
by documentary evidence
U3Q3_Discuss provisions relating to exclusion of oral
evidence by documentary evidence
U3Q5_latent and patent ambiguity
Table of contents:
I).Synopsis
II).Understanding of Oral Evidence
III).Understanding of Documentary Evidence
IV).Understanding of extrinsic evidence and ambiguity
of Documents
V).Exclusion of oral evidence by documentary evidence
[Section-91, 92]
VI).Exclusion of extrinsic evidence/When extrinsic
evidence cannot be given/Patent ambiguity [Sec-93,94]
VII).Admission of extrinsic evidence/When extrinsic
evidence can be given/Latent ambiguity [Sec-95, 96, 97,
98]
VIII).Evidence by Non-Parties [Section-99]
IX).Exclusion of provisions in Indian Succession Act,
1925 [section-100]
X).Difference between Oral Evidence and Documentary
Evidence
XI).Diff b/w Patent Ambiguity and Latent Ambiguity
XII).Conclusion
I).Synopsis
Chapter VI of IEA, 1872 deals with the provisions OF
THE EXCLUSION OF ORAL BY DOCUMENTARY
EVIDENCE
This chapter contains 10 sections from 91 to 100 as
following
1).Exclusion of oral evidence by documentary evidence
[Sec-91,92]
2).Exclusion of extrinsic evidence/When extrinsic
evidence cannot be given/Patent ambiguity [Sec-93,94]
3).Admission of extrinsic evidence/When extrinsic
evidence can be given/Latent ambiguity [Sec-
95,96,97,98]
4).Evidence by Non-Parties [Section-99]
5).Exclusion of provisions of Indian Succession Act,
1925 [section-100]
II).Oral Evidence
2.1).Meaning:
The evidence which is confined to the words spoken by
mouth is the oral evidence. If oral evidence is worthy of
credit, it is sufficient to prove a fact or a title without any
documentary evidence. The provisions related to oral
evidence are given under Chapter IV of the Indian
Evidence Act, 1872. Oral evidence of a witness can be
considered doubtful if it is in contradiction with the
previous statement.
III).Documentary Evidence
3.1).Meaning
The provisions related to the documentary evidence are
provided under Chapter-V of the Indian Evidence Act,
1872. Section 3 of the Act defines the term “document”.
Any matter which is expressed or described on any
substance by means of letters, figures or remarks or by
more than one means and which can be used for
recording the matter is considered as a “document”.
Generally, the most common document which we have
to deal with is described by letters. The documents are
written in any language of communication such as
Hindi, English, Urdu etc.
The documents produced before the court as evidence
are the documentary evidence and there must primary or
secondary evidence to prove the contents of the
documents. Primary evidence has been defined under
section 62 of the Indian Evidence Act and it means the
original document when itself produced before the court
for the inspection.
The secondary evidence has been defined under section
63 of the Act. The secondary evidence is the certified
copy of the evidence or copy of original documents.
Secondary evidence also includes the oral accounts
given by a person about the contents of the document
who has himself seen it.
IV).Extrinsic evidence
4.1).Meaning of Extrinsic evidence
External evidence; that which is not contained in the
body of an agreement, contract or will.
4.2).Provisions related with extrinsic evidence in IEA
The rule about admission or exclusion of extrinsic
evidence has been laid down under section 93 to 98 of
the Indian Evidence Act.
4.3).Extrinsic evidence and document ambiguity
#).The exclusion or admission of extrinsic evidence is in
connection with the facts contained in a document which
either a contract or not.
#).The ambiguity in the language of a document can be
divided into two categories:
a).Patent ambiguity
b).Latent ambiguity
4.4).Patent ambiguity and latent ambiguity
A patent ambiguity is when the language of the
document or deed is uncertain.
In other words, A patent ambiguity apparent on the face
of the instrument and arising by reason of any
inconsistency or inherent uncertainty of language used,
leading to an indefinite or confused meaning
A Latent ambiguity is an ambiguity which is not present
in the deed but it arises due to extrinsic factors.
In other words, A latent ambiguity occurs when the
language of the instrument is clear (i.e., the defect does
not appear on its face); however, when coupled with
some extrinsic fact or some extraneous evidence, there
could be two or more possible meanings.
4.5).Finding type of ambiguity in documents
The test to find the difference that whether the ambiguity
is a patent ambiguity or a latent ambiguity is to put the
document in the hands of an ordinary intelligent
educated person.
a).If on reading the document the ambiguity can be
detected and no definite meaning can be understood then
such ambiguity is patent ambiguity.
b).If on perusal of document no ambiguity can be found
by him and the meaning is definite but that document is
applied with the instrument of facts, the ambiguity arises
and its meaning becomes indefinite, then the ambiguity
is the latent ambiguity.
V).Exclusion of oral evidence by documentary
evidence
5.1).Evidence reduced in the form of document [S91]
1).This section run as follow
Section-91: Evidence of terms of contracts, grants and
other dispositions of property reduced to form of
document.
2).Details
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.
3).Illustration
a).A sells his Dog for Rs. 100 to B: In this case no
written deed is compulsory.
b).B wants to mortgage the dog for Rs. 100 to C: No
written deed is mandatory.
c).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., judgement and decrees, the
deposition of witnesses, when an accused person is
examined etc.
Orally, many contracts, grants and other depositions can
be affected but reducing the terms of the contract on
which the party agrees in a document is considered to be
the best evidence for the terms of that contract. When
reduced to documents, it acts as the best evidence. Even
if the document is lost or in adversary possession
secondary evidence as described under section 65 can be
produced before the court.
4).Exceptions
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
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 term “probate”
stands for the copy of a certificate with the seal of the
court granting administration to the estate of the testator.
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
5).Explanations
The first explanation in this section says that where there
is more than one document to prove a contract, grant or
disposition then each and every document needs to be
proved and the proof must be with the original document
i.e. primary evidence or by secondary evidence where
secondary evidence will be applicable.
The second explanation says that if there is more than
one original for a single contract, grant or disposition
then proving only one document will be sufficient. An
example is the bills of exchange of which three are
usually exchanged and also the bills of lading which are
usually executed in duplicates and sometimes in
triplicates. Where the document listed is in several parts
each part is the primary evidence of the document.
The third explanation to the section says that when there
is a question of evidence other than that of (i) contract,
grant and disposition of property and (ii) matters
required by law to be reduced to writing then the rule
will not apply and any kind of evidence will be
admissible. For example, the contract of marriage is not
signed by either of the contracting parties but it is in the
nature of a memorandum prepared by nikah khwan, then
it is open to one of the parties to prove by other
evidence, oral or documentary, that he or she has been
married and also the terms.
6).Case laws
State bank of India v. Mula Shakari Sakhar Karkhana
Ltd. (2006) 6 SCC 293
In this case, Supreme Court held that the court will judge
the nature of the transaction by terms and conditions of
the contract together with the surrounding and the
attending circumstances only in a case where the
document suffers from some type of ambiguity. Where
no such ambiguity occurs regarding the document the
court will not take such recourse.
Hans Raj Agarwal v. CIT, (2003) 2 SCC 295
In this case, Supreme Court held that the partition of
property can be done orally. Where a document is
drafted and the document clearly says without any
ambiguity and in unmistakable terms that it is a deed of
partition and that the parties have secured their
entitlement of the property and consented to it then it
cannot be held that the document is not the deed of
partition and the same can be interpreted in some other
way. The provisions of this section do not permit such
interpretation of documents where there is no ambiguity
whatsoever in the document in question.
Aktiebolaget Volvo v. R. Venkatachalam (2009) ILR 6
Delhi 233
The Delhi high court said that in case a party will suffer
irreparable damages on loss of the original document, in
that case, the original document can be kept in custody
of the party rather than its own custody but they will be
subject to frequent inspection by the court. The reason
cited by the court was that while the courts work in too
much time constraint and there are always so many
document transactions going on in the court that the
question of safety of the documents in the court becomes
questionable. Further, the parties will get the documents
can be received by the parties only under Order 13 Rule
9 of the CPC.
5.2).Exclusion of Evidence of oral agreement [S92]
1).This section run as follow
When the terms of any such contract, grant or other
disposition of property, or any matter required by law to
be reduced to the form of a document, have been proved
according to the last section, no evidence of any oral
agreement or statement shall be admitted, as between the
parties to any such instrument or their representatives in
interest, for the purpose of contradicting, varying, adding
to, or subtracting from, its terms:
2).Details
Section 92 of the Indian Evidence Act, 1872 speaks
about, “Exclusion of evidence of oral agreement”. This
section says that if any contract, grants or disposition of
property which is required by law to be in writing in
form of document and if it has been proved according to
Section 91, then for the purpose of varying it,
contradicting it or subtracting it parties or their
representative is not required to give oral evidence and it
is not admissible. Two points are proved from this
section:
(1).If any third party gives then it is admissible.
(2).If any oral evidence is given which do not contradict
the contract then it is admissible.
The rationale behind Section 92 is that the parties having
made a complete memorial of their agreement, it must be
presumed that they have put into writing all that they
considered necessary to give full expression to their
meaning and intention; further, the reception of oral
testimony would create mischief and open the door to
fraud.
3).Exceptions (Provisos)
Section 92 of Evidence Act has following exceptions: -
(1).Validity of documents
If any contract, grant or other dispositions of property is
made between the parties and fraud is done by other
party or there is a mistake of fact, or mistake of law, or
the party is not competent to contract then in such
circumstances oral evidence can be given and it is
admissible
(2).Matter on which document is silent
Evidence can be given of an oral agreement on a matter
on which the document is silent. But the oral agreement
should not be inconsistent with the terms stated in the
document. The separate oral agreement should be on a
distinct collateral matter, although it may form a part of
the transaction. Further, the formality of the document is
important; the more formal the document, the greater
will be the court’s reluctance to admit oral evidence
So, as held in the case of Bal Ram v. Ramesh Chandra,
the requirements of this proviso are:
a).On the matter on which the document is silent, a
separate oral agreement should be related to it.
b).Such oral agreement should not be inconsistent with
the terms of the document.
(3).Condition Precedent
This exception means that where there is a separate oral
agreement that the terms of a written contract are not to
take effect until a condition precedent has been fulfilled
or a certain event has happened, oral evidence is
admissible to show that as the event did not take place,
there is no written agreement at all. This rule would
never apply to a case where the written contract has been
performed or acted upon for some time3).
(4).Recession or modification
Where after executing a document, the parties orally
agree to treat it as cancelled or to modify some of its
terms, such distinct and subsequent oral agreement may
be proved. However, where the contract is one which is
required by law to be in writing, or where it has been
registered lawfully, then proof cannot be given of any
oral agreement by which it was agreed either to rescind
the contract or to modify its terms.
(5).Usage or customs
If there is the existence of any particular usage or
customs by which incidents are attached to a contract
then it can be proved. This means oral evidence is
admissible to explain or supply terms in commercial
transactions on the presumption that the parties did not
intend to put into writing the whole of their agreement,
but (impliedly) agreed that their contract was to be
interpreted or regulated by established usages and
customs, provided they are not inconsistent with the
terms of such contract. Thus, oral evidence may be
offered by the custom.
(6).Relation of language of facts
Any fact may be proved which shows in what manner
the language of a document is related to existing facts.
This exception comes into play when there is latent
ambiguity in a document i.e. when there is a conflict
between the plain meaning of the language used and the
existing facts. In such cases, evidence of the
“surrounding circumstances” may be admitted to
ascertain the real intention of die parties. Thus, the
conduct of the parties can also be taken into account so
as to find out what they might have meant by their
words.
4).Illustrations
(a) A policy of insurance is effected on goods “in ships
from Calcutta to London”. 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.
(b) A agrees absolutely in writing to pay B Rs. 1,000 on
the first March 1873. The fact that, at the same time, an
oral agreement was made that the money should not be
paid till the thirty-first March, cannot be proved.
(c) An estate called “the Rampore 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.
(d) 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.
(e) 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.
(f) 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.
(g) A sells B a horse and verbally warrants him sound. A
gives B a paper in these words: “Bought of
A a horse of Rs. 500”. B may prove the verbal warranty.
(h) A hires lodgings of B, and gives B a card on which is
written ––“Rooms, Rs. 200 a month.” A
may prove a verbal agreement that these terms were to
include partial board.
A hires lodgings of B for a year, and a regularly stamped
agreement, drawn up by an attorney, is
made between them. It is silent on the subject of board.
A may not prove that board was included in the
term verbally.
(i) 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.
(j) 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.
5.3).Inter-relation between section 91 and 92
Section 91 and 92 are supplementary to each other. Both
sections support and complete each other. When the
terms of the contract, deposition of a property or any
matter required to be in writing under the law if proved
by the document then the oral evidence is not required to
contradict it.
After a document has been produced to prove its terms
under section 91, then the provisions of section 92 play
for excluding evidence of any oral agreement or
statement for the purpose of contradicting, varying,
addition or subtraction from its terms.
Even though the two sections are supplementary to each
other, both sections differ about some of the opinions in
particular. Section 91 deals with the documents whether
or not they are having the purpose to dispose off the
rights or not but section 92 is applicable to the
documents which are dispositive in nature.
Section 91 applies to the document which is both
bilateral and unilateral documents but section 92 applies
only to the document which is of bilateral nature.
VI).Exclusion of extrinsic evidence/When extrinsic
evidence cannot be given/Patent ambiguity
6.1).Sec-93=Exclusion of evidence to explain or
amend ambiguous document.
6.1.1).This section run as follow:
When the language used in a document is, on its face,
ambiguous or defective, evidence may not be given of
facts which would show its meaning or supply its
defects.
6.1.2).Details
Section 93 of the Indian Evidence Act, deals with the
patent ambiguity and no oral evidence is given to
remove the patent ambiguity.
According to section 93 when the language of the
document is ambiguous or defective on its face, the
evidence which can show its meaning or supply its
effects may not be given.
6.1.3).Illustrations
a).An agreement is made between A and B that A will
sell his crops for Rs. 1000 or 2000. The evidence cannot
be given that which price was to be given.
(b) A agrees, in writing, to sell a horse to B for “Rs.
1,000 or Rs. 1,500”. Evidence cannot be given to show
which price was to be given.
(c) A deed contains blanks. Evidence cannot be given of
facts which would show how they were meant to be
filled.
6.1.4).Case laws
In the case of Keshav Lal v. Lal Bhai T. Mills Ltd., it
was held by the Supreme Court that it would not be open
for the parties or the court to remove the ambiguity or
vagueness by relying upon the extrinsic evidence.
6.2).Sec-94=Exclusion of evidence against application
of document to existing facts
6.2.1).This section run as follow:
When language used in a document is plain in itself, and
when it applies accurately to existing facts, evidence
may not be given to show that it was not meant to apply
to such facts.
6.2.2).Details
According to section 94, when the language in the
document is simple and plain itself and it applies
accurately to the existing facts, the evidence to show that
it was not meant to apply to such facts may not be given.
When there is neither a patent ambiguity nor a latent
ambiguity then the evidence cannot be given to
contradict this.
6.2.3).Illustrations
A sells to B, by deed, “my estate at Rampur containing
100 bighas”. A has an estate at Rampur containing 100
bighas. Evidence may not be given of the fact that the
estate meant to be sold was one situated at a different
place and of a different size.
6.2.4).Case laws
In the case of General Court Marshal v. Col. Anil Tej
Singh Dhaliwal it was held by the Supreme Court that
section 94 applies only when the execution of the
document is admitted before the court and there are no
vitiating circumstances against it.
VII).Admission of extrinsic evidence/When extrinsic
evidence can be given/Latent ambiguity
7.1).S95=Evidence allowed to be given when the
document is plain in itself
7.1.1).This section run as follow:
When language used in a document is plain in itself, but
is unmeaning in reference to existing facts, evidence
may be given to show that it was used in a peculiar
sense.
7.1.2).Details
Section 95 of the Indian Evidence Act deals with latent
ambiguity and oral evidence can be given for removing
latent ambiguity. When the language which has been
used in the document is simple and plain but it is not in
the meaning to existing facts due to the mistakes in the
descriptive evidence and such mistake can be shown that
it was used in a peculiar sense.
7.1.3).Illustrations
a).A sold his house to B stating in the deed as “my house
in Lucknow”.
But, A has no house in Lucknow but he has a house in
Kanpur in which B is living since the deed was
executed. Then the evidence can be used to prove the
fact the deed was related to the house in Kanpur.
b).A sells to B, by deed, “my house in Calcutta”. A had
no house in Calcutta, but it appears that he had a house
at Howrah, of which B had been in possession since the
execution of the deed. These facts may be proved to
show that the deed related to the house at Howrah.
7.1.4).Case laws
NIL
7.2).S96=Evidence allowed when the application of
the language which is meant to apply on only one,
applies to several persons
7.2.1).This section run as follow:
When facts are such that language used might have been
meant to apply to any 1, and could not have been meant
to apply to more than one, of several persons /things,
evidence may be given of facts which show which of
those persons/ things it was intended to apply to.
7.2.2).Details
When the language of the facts is such that, which is
meant to apply on only one person applies on several
persons, then the evidence may be given under section
96 of the Indian Evidence Act to clarify that which of
those persons or things, that fact is intended to apply on.
7.2.3).Illustrations
(a).A agrees to sell his white cow to B for Rs. 2000 and
in the deed he has mentioned “my white cow”. A has
two white cows. Evidence can be given to prove that
which white cow he meant in that deed
(b) A agrees to sell to B, for Rs. 1,000, “my white
horse”. A has two white horses. Evidence may be give of
facts which show which of them was meant.
(c) A agrees to accompany B to Haidarabad. Evidence
may be given of facts showing whether Haidarabad inthe
Dekkhan or Haiderabad in Sind was meant.
7.2.4).Case laws
Nil
7.3).S97=When on the application of the language of
two or more facts neither of them applies correctly,
then evidence to be admitted
7.3.1).This section run as follow:
When the language used applies partly to one set of
existing facts, and partly to another set of existing facts,
but the whole of it does not apply correctly to either,
evidence may be given to show to which of the two it
was meant to apply
7.3.2).Details
According to section 97 of the Indian Evidence Act,
when the language used in a fact applies to one set
existing fact partly and partly to another set of existing
fact, but if applied as a whole, it does not apply to either
correctly then the evidence can be presented before the
court to clarify that which of the facts was actually
intended.
7.3.3).Illustrations
a).A agrees to sell to B “my land at X in the occupation
of Y”. A has land at X, but not in the occupation of Y,
and
he has land in the occupation of Y but it is not at X.
Evidence may be given of facts showing which he meant
to sell.
b).X sells his land to Y stating “My land at A in the
occupation of B”. X had land at A but it is not in
occupation of B and X has land which is in the
occupation of B but it is not at A. Then X can present
evidence before the court that which land he actually
wants to sell.
7.3.4).Case laws
NIL
7.4).S98=Evidence given to show the meaning of
illegible characters
7.4.1).This section run as follow:
Evidence may be given to show the meaning of illegible
or not commonly intelligible characters, of foreign,
obsolete, technical, local and
provincial expressions, of abbreviations and of words
used in a peculiar sense
7.4.2).Details
To show the meaning of illegible characters or
characters which are not commonly intelligible character
such as characters of foreign, obsolete, technical, local
or provincial expressions of words or abbreviations
which is used in a peculiar sense, evidence can be
presented before the court under section 98 of the Indian
Evidence Act.
7.4.3).Illustrations
a).A, sculptor, agrees to sell to B, “all my mods”. A has
both models and modelling tools. Evidence may be
given
to show which he meant to sell. b).A sells his artwork to
B stating “all my mods”. Here, what A meant by the
term “mods” can be clarified by the way of admission of
evidence.
7.4.4).Case laws
NIL
VIII).Evidence by Non-Parties [Section-99]
8.1).This section run as follow:
Persons, who are not parties to a document, or their
representatives in interest, may give evidence of any
facts tending to show a contemporaneous agreement
varying the terms of the document.
8.2).Details
Under section 99 of the Indian Evidence Act, those
persons also can give evidence who are not parties to a
document or representative-in-interest regarding any fact
which shows a contemporaneous agreement varying the
terms of the document.
As section 92 of the Act excludes the party to the
contract from producing the document but it does not
exclude those who are the parties to contract. So, under
this section i.e., section 99 the same provision is being
repeated.
8.3).Illustrations
A and B make a contract in writing that B shall sell A
certain cotton, to be paid for on delivery. At the same
time they make an oral agreement that three months
credit shall be given to A. This could not be shown as
between A and B, but it might be shown by C, if it
affected his interests.
8.4).Case laws
In the case of Bai Hira Devi v. Official Assignee of
Bombay section 92 deals only with the matter related to
contracts, grants and other depositions of the property
but section 99 deals with all types of document, whether
it is a contract or not. Section 99 speaks only about
varying the terms of a document.
IX).Exclusion of provisions in Indian Succession Act,
1925 [section-100]
9.1).This section run as follow:
Nothing in this Chapter contained shall be taken to affect
any of the provisions of the Indian Succession Act, 1865
1(10 of 1865) as to the construction of wills.
9.2).Details
According to section 100 of the Indian Evidence Act, the
provisions laid down under Chapter VI of the Indian
Evidence Act are to be taken into effect on any of the
provisions regarding the construction of will under the
Indian Succession Act,1865.
9.3).Illustrations
N/A
9.4).Case laws
N/A
X).Difference between Oral Evidence and 5 A patent ambiguity is Latent ambiguity is not
Documentary Evidence on the face of the evident from prima facie
# Oral Evidence Documentary Evidence document and is inspection of document
1 Oral evidence means When a document is evident from but it becomes apparent
the statements which produced b4 court then inspection of the when language of a
are given by a witness such doc is considered document itself. document is applied to
before the court. as documentary existing circumstances
evidence
2 It is the statement of a It is a statement
witness in oral form. submitted through the XII).Conclusion
documents. Chapter VI of the Indian Evidence Act deals with the
3 In the oral evidence The documents are provisions related to the exclusion of oral evidence by
are stated through composed of words, documentary evidence. There are certain circumstances
voice, speech or signs, letters, figures and when the oral evidence cannot be admitted before the
symbols for its remarks and submitted court for the support of documentary and there are also
recording before the before the court. instances when the oral evidence is admissible. All the
court. provisions have to be dealt with according to this
4 The oral evidence is The provisions related to chapter. The provisions related to the will under the
discussed under the documentary Indian Succession Act is excluded from these provisions.
section 59 and section evidence have been
60 of the Indian discussed u/s 61 to 66 of
Evidence Act. IEA.
5 The oral evidence is The contents of the
required to be direct documentary evidence
and it becomes need to be supported by
doubtful if the primary or secondary
statement contradicts evidence.
with the previous
statement.

XI).Diff b/w Patent Ambiguity and Latent Ambiguity

# Patent Ambiguity Latent Ambiguity
1 When the language of When the language of a
the document is so document is certain and
uncertain and effective meaningful but the
that no meaning can document makes no
be granted to relevance in the present
document then it is circumstance then it is
called as Patent latent ambiguity.
Ambiguity.
2 The patent ambiguity The latent ambiguity is
is personal in nature of objective nature and it
and it is related to the is related to the subject
person executing the matter and object of the
document. document.
3 Oral evidence is not To remove latent
allowed for the ambiguity, oral evidence
removal of patent is allowed.
ambiguity.
4 The rule on which the Giving oral evidence in
patent ambiguity is case of latent ambiguity
based is that the patent is based on the principle
ambiguity makes the the latent ambiguity
document useless. does not make a
document useless

U3Q4_Explain relevancy of character evidence under
lndian Evidence Act, 1872
Explain relevance of char as evidence in civil &
criminal cases [100 marks pattern]
Table of Contents:
I).Synopsis
II).Introduction:
III).Definition of Character:
IV).Relevancy of Character in civil cases [Sec-52]
V).Relevancy of Character in Criminal cases [Sec-
53,53A,54,55]
VI) Relevant Case law
VII).Conclusion
I).Synopsis
Chapter II, Heading “CHARACTER WHEN
RELEVANT", Sections 52,53,53A,54,55, of IEA, 1872
deals with the provisions of relevancy of character
evidence.
II).Introduction:
The word 'Character' denotes "the collective qualities or
characteristics especially mental and moral that
distinguish a person or thing. Character is differs from
conduct. Conduct is a stray act. it is single act , done on
one occasion while character is continuous act and there
is repetition of the same act. Character is a combination
of quality distinguishing a person, the individuality of
which is the product of nature, habits and environment."
Is a man honest, is he good-natured, is he of a violent
temper, is he modest and retiring or imprudent and
forward. These all constitute traits of character."
III).Definition of Character:
The word Character has been defined in S55 of IEA. It
includes both reputation and disposition, but except as
provided in S54, Evidence may be given only of general
reputation and general disposition, and not of particular
acts by which reputation or disposition were shown.
IV).Relevancy of Character in civil cases [Sec-52]
[CHARACTER ADMISSIBLE IN CIVIL CASES]
1).Sec-52=In civil cases character to prove conduct
imputed, irrelevant
1.1).Section 52 runs as follows:
In civil cases, the fact that the character of any person
concerned is such as to render probable or improbably
any conduct imputed to him is irrelevant except in so far
as such character appears from facts otherwise relevant.
1.2).Details
#).Section 52 of the Indian Evidence Act is itself in
issue. In civil proceedings, the evidence of good
character or bad character is not going to help the court
in deciding the matters in issue.
#).In civil proceeding good or bad character is not
relevant. e.g. In a suit filed by landlord against a tenant
for recovery of the premises on ground of default of
payment of rent, if tenant argued that he is religious
person and hence the suit be dismissed. His character is
irrelevant and the Court will pass eviction order against
him, on the ground of default.
#).Thus the general principle is that a party that cannot
give evidence of his good character for the purpose of
showing that it is improbable that he should be guilty of
the conduct imputed to him. e.g. if a person is charged
with negligent driving, he cannot give evidence of fact
of his character and conduct has been such that he could
not have been guilty of negligence. Similarly, his
opposite party cannot give evidence of the fact that his
character and conduct had been so bad that he must have
been negligent. The reason is that the Court has to try the
case on the basis of its fact for the purpose of
determining whether the defendant should be liable or
not. The court has not to try the character of the parties.
#).Thus, it may be laid down as a general rule that in
civil action evidence of character of any person is not
admissible for the purpose of raising interference as to
its conduct.
#).There are certain cases in which character is a fact in
issue or a relevant fact e.g. in a suit for libel, if the libel
consisted in attributing bad qualities to the plaintiff and
the defendant justices the existence of these qualities, the
existence of these qualities would be a fact in issue and
evidence of character may be led. The character of a
female chastity has been received in evidence in action
for breach of promise for marriage.
#).Best states that "To admit character evidence in every
case, or to reject it in every case, would be equally fatal
to justice; that to draw a line or to define with precision
where it ought to be received and where it ought to be
rejected, is as embarrassing a problem as any Legislature
can be called upon to solve."
1.3).Case law
<Abdul Shakur and ors v. Kotwaleshwar Prasad & ors>
it has been held that where the contention that certain
pro-notes had been obtained from the insolvent while he
was under the influence of drink, has been found to be
baseless, mere general bad character of the insolvent
would be quite irrelevant in a civil case to prove want of
consideration.
V).Relevancy of Character in Criminal cases [Sec-
53,53A,54,55] [CHARACTER ADMISSIBLE IN
CIRIMINAL CASES]
1).Section-53=In criminal cases previous good
character relevant.
1.1).Section-53, run as follows...
In criminal proceedings, the fact that the person accused
is, of a good character, is relevant.
1.2).Details
As per sec-53,
#).In criminal proceedings, the fact that the person
accused is, of a good character, is relevant
#).The innocence or criminality of an accused can easily
be judged by basing on his character.
#).Every accused person is at liberty to give evidence of
the fact that he is man of good character.
#).The expression, "Good Character" has of course is
known significance in relation to evidence upon criminal
trials for it denote a description of evidence in disproof
of the guilt which an accused person may adduce.
1.3).Case Laws
Supreme Court In Habib Mohammad v. State of
Hyderabad, AIR 1954 SC 59, that in criminal proceeding
a character of a man is often a matter of importance in
explaining his conduct and in judging his innocence or
criminality.
2).Section-53A=Evidence of character or previous
sexual experience not relevant in certain cases.
In a prosecution for an offence under section 354,
section 354A, section 354B, section 354C, section 354D,
section 376, section 376A, section 376B, section 376C,
section 376D or section 376E of the Indian Penal Code
(45 of 1860) or for attempt to commit any such offence,
where the question of consent is in issue, evidence of the
character of the victim or of such person's previous
sexual experience with any person shall not be relevant
on the issue of such consent or the quality of consent.
3).Section-54=Previous bad character not relevant,
except in reply
3.1).This section run as follows...
In criminal proceedings, the fact that the accused person
had a bad character is irrelevant unless evidence has
been given that he has a character in which case it
becomes relevant.
3.2).Explanation-1:
This section does not apply to cases in which the bad
character of any person is itself a fact in issue.
3.3).Explanation-2
A previous conviction is relevant as evidence of bad
character
3.4).Details of the sec-54
As per this section previous bad character is not relevant
but in criminal cases to decide the quantum past bad
character is relevant. When it is proved that he had
committed an offence of the same nature in the past,
then maximum punishment can be awarded to him,
unless evidence is given of his good character.
3.5).The previous bad character of the accused in
criminal cases is relevant in the following circumstances
(1) When the accused has adduced evidence that he has
been of good character, the prosecution can lead
evidence to the effect that he has been a bad character.
(2) Where the bad character of accused itself is a fact in
issue, the evidence of bad character of the accused may
be given. e.g. under section 110 of Cr.P.C. habitual
offender includes offender who id by habit a robber,
house-breaker, or is so desperate and dangerous to the
society then the very character of the accused is in
question and evidence to that effect is admissible;
(3) Where the previous conviction is relevant as
evidence of bad character, evidence of bad character is
relevant.
4).Sec-55=Character as affecting damages
4.1).This section run as follow
In civil cases, the fact that the character of any person is
such as to affect the amount of damages which he ought
to receive is relevant.
4.2).Note:
It should be noted that it is only in civil cases that a
question of amount of damages to be awarded to the
plaintiff is concerned and his character becomes
relevant.
4.3).Explanation
In Section 52,53,54 and 55, the word “character”
includes both reputation and disposition; but except as
provided in Section 54, evidence may be given only a
general reputation and general disposition and not of
particular acts by which reputation or disposition was
shown.
5).From the above provisions (53,53A,54,55)
following principles are laid down...
1) to prove good or bad character , evidence can be
given both of reputation and disposition.
2) evidence can be given of previous conviction in proof
of bad characters, and
3) evidence can not be given of particular fact, but only
of general reputation and general disposition were
shown.
VI) Relevant Case law
<Bhagvan Sawarup V. State of Maharashtra, AIR 1965
SC 682>
Supreme court held that character evidence is very weak
evidence, it cannot outweigh positive evidence in regard
to the guilt of the person. Character will necessarily vary
according to circumstances of each case.
<D.Shastri Vs. K.B.Sahay 1953>
Patana High Court held that in civil cases, where the
question of amount of damages to be awarded to the
plaintiff is concerned, that a character of a plaintiff
becomes relevant.
VII).Conclusion
The general rule is that character evidence is
inadmissible. Since it is very difficult to assess the
character of the person, evidence of character is rendered
inadmissible.
U3Q6_Public Document
I) Introduction
All the documents may be classified into two categories
either ' Public documents' or ' Private documents' . S. 74
of Indian evidence Act deals with definition of Public
document whereas S.76 to S.78 deals with the modes or
the proof for the purpose of proving the contents of a
public document. The public documents are admitted in
evidence and as an exception to hearsay rule as the fact
contained in them are of public interest and they are the
statements made by the authorised and competent agent
of public in the course of their official duties.
II) Definition of Public Document.
S74 Public documents
The following documents are public documents :—
(1) Documents forming the acts, or records of the acts—
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive,
of any part of India or of the Commonwealth, or of a
foreign country;
(2) Public records kept in any State of private
documents.
In order to bring documents within the definition of
"public document" as laid down in S.74, it must be
shown to gave been prepared by any public servant in
the discharge of his official duty. The mere fact that it is
kept in a public office does not make it a public
document.
According to the definition given u/s. 74, only those
documents are said to be public documents as form of
the act and records of public officer. It also includes the
act of parliament and state legislatures, proclamation,
ordinance, state papers and gazettes.
The acts and record of acts of the proceedings of the
municipal board would come under the category of acts
or records of acts of official bodies. Municipal register
of birth and death kept by municipal board is a public
document. The acts and record of election tribunals are
the documents which would come within the meaning of
public document. The record of court of justice and
other judicial writings are public documents.
S.74 (2) refers to private document through made by
private individuals but kept as record in public offices in
order to facilitate public to have an access to it. Such
private documents are kept in Public offices are regarded
as public documents . for example , S.51 of the Indian
registration Act , 1908 provides for the maintenance of
certain records of the documents registered and S.57 of
the same Act , enables the registration officer to give
certified copies of all such documents .
III) Examples of Public documents
1) Birth and death registers of municipalities .
2) Charge sheet
3) confessions recorded by magistrate u/s . 164 of
Cr.P.C.
4) Deposition of witnesses recorded by an officer of the
Court.
5) Entry in the register of power of attorney kept in the
registration office .
6) sanction to prosecute.
7) Notice u/s 106 of Cr.P.C.
8) Record of information u/s.145 Cr.P.C
VI) S.75 Private documents
All other documents are private.
This section simply provides that any document not
coming under of the two clauses of S.74 is private
document. A deed of contract, memorandum, letter, sale
deed, etc .are the private documents.
V),Certified copies of Public Documents S.76 -
Every public officer having the custody of a public
document, which any person has a right to inspect, shall
give that person on demand a copy of it on payment of
the legal fees there for together with a certificate written
at the foot of such copy that it is a true copy of such
document or part thereof, as the case may be, and such
certificate shall be dated and subscribed by such officers
with his name and his official title, and shall be sealed
whenever such officer is authorized by law to make use
of a seal, and such copies so certified shall be called
certified copies.
Explanation -
Any officer who, by the ordinary course of official duty,
is authorized to deliver such copies, shall be deemed to
have the custody of such documents within the meaning
of this section.
VI).S. 77 Proof of documents by production of
certified copies :
Such certified copies may be produced in proof of the
contents of the public documents or parts of the public
documents of which they purport to be copies.
The certified copies as referred in S.76 may be produce
on proof of the contents of public document or parts of
public documents. Any person who has a right to inspect
a public document may obtain a certified copy of it from
the public officer whose custody it is and may produce
before the court for purpose of proving the contents of 2) proceedings of the legislature
such public documents. Certified copies are treated as 3) Proclamation , orders and regulations of her majesty ir
equivalent to originals. of the privy council.
4) This Acts of the executive or proceedings of foreign
VII) S.78 Proof of other official documents : legislatures .
The following public documents may be proved as 5 ) Proceedings of municipal bodies
follows - 6) Public documents of any other class in a foreign
(1) Acts, orders or notifications of the General country.
Government in any of its departments, or of the Crown
Representative or of any State Government or any IX) Case law -
department of any State Government. A) Manjula V. Mani 1998 Cr. L. J 1476 (mad).
By the records of the departments, certified by the heads In this case, Madras High Court Held that Hindu
of those departments respectively, or Marriage register is a public document. Therefore the
By any document purporting to be printed by order of certificate copies of such register may be obtained from
any such Government or as the case may be, of the the office of marriage registrar and the same are
Crown Representative; admissible in evidence in a criminal charge of bigamy
(2) The proceedings of the Legislatures - punishable u/s494 Indian penal code.
by the journals of those bodies respectively, or by B) shyam lal vs State 1998 Cr. l.J. 2879 (All)
published Acts or abstracts, or by copies purporting The The first Information report is a public document and
Orient Tavern be printed 3by order of the Government said accused is entitled to have its certified copy from
concerned; the police authorites or from the court on Payment of
(3) Proclamations, orders or regulations issued by Her requisite fee.
Majesty or by the privy Council, or by any department
of Her Majesty’s Government, By copies or extracts X) Conclusion -
contained in the London Gazette, or purporting to be Documents are classified into two categories Public And
printed by the Queen’s Printer; private documents . Any document not come under the
(4) The Acts of the Executive or the proceedings of the definition of Pubic documents are Private documents.
Legislature of a foreign country - Certified copies of a public document may be issued
By journals published by their authority, or commonly only by public officer having its custody and may be
received in that country as such, or by a copy certified produce in proof of the contents of the public Document.
under the seal of the country or sovereign, or by a
recognition thereof in some central Act;
(5) The proceedings of a municipal body in a State, -
By a copy of such proceedings certified by the legal
keeper thereof of by a printed book purporting to be
published by the authority of such body,
(6) Public documents of any other class in a foreign
country, -
by the original, or by a copy certified by the legal keeper
thereof with a certificate under the seal of a notary
public, or of an Indian consul or diplomatic agent, that
the copy is duly certified by the officer having the legal
custody of the original and upon proof of the character
of the document according to the law of the foreign
country.
This section deals with the special modes of proof are
available for the purpose of proving the contents of
certain kinds of public documents like government
statutes , proceedings of legislatures or of a municipal
body .The modes available under this section are nor
exhaustive and resort can be had to any other modes
also.

VIII) There are six kinds of public documents

referred in S. 78 which are as under -
1) Acts and notifications