 So now is it audible? Yes. Okay. Good evening, friends. And as usual, I am seeing the people are waiting on the YouTube as well as on the Zoom who have been insightful session by Mr. Esar Somasekar, a former district judge from Bangalore. He has taken a lot of sessions on evidence act, have been insightful. And as in when we have been requesting him, he has been acceding to our request, not only beyond law, but all those who watch him are fascinated the way he takes the topic. And one of his sessions is about, in fact, to touch 80,000 views, totally shows the volume, the way in which he speaks. Today's topic is exclusion of oral by documentary evidence. The reference in this regard would be to primary on section 91 to 100 of the evidence act. Since there was some delay, we will not take much time and straight away request, sir, to take over the knowledge full session. Over, sir. Good evening, friends. The subject for discussion today is exclusion of oral evidence by documentary evidence. You're able to hear me? Yes, you're able to hear me? Okay. The relevant provisions are sections 91 to 100. Before, did you know? It's audible, it's audible, perfect. Perfect. Okay. Yeah. Before taking you through the provisions of sections 91 to 100, we need to refer to certain other provisions of the evidence act. That is section 59 and 60. And then 61. Foundation is required. Chapter four, oral evidence section 59. All facts except the contents of documents or electronic records may be proved by oral evidence. So section 59 itself will indicate to us what is the scope of sections 91, 92 and the following sections are. Therefore, section 59 makes it clear that if there is an argument, there is no question of oral evidence. So what extent oral evidence is prohibited? How it really functions in a quarter of law? They are all matters of detail about which I will tell. The basic rule as per section 59 is if there is an argument, the contents of the document cannot be proved by oral evidence. Then section 60, oral evidence must be directed. That is rule of hearsay is prohibited. I am not on that. Then 61, primary evidence, secondary evidence. Now, how does this work in course? That's important for us. It has been a common practice in civil cases or particularly in civil cases. During the course of cross examination of the plaintiff or the defendant to ask him a question. You have stated something in the chief examination as to your title. You have stated something in the chief examination as to the title of your vendor. Let us say the plaintiff claims title under a sale deed executed by one cheque. The defendant disputes the title of H himself. He says at the point of time when H executed a sale deed in favor of the plaintiff, H himself was not the owner. Even if he has executed a sale deed in favor of the plaintiff, the question of the plaintiff becoming owner does not arise. That takes us to section 8 of the transfer of property at which says he who does not possess anything cannot part with it. Now, during the course of cross examination, the plaintiff has asked a question. You climb title under a sale deed executed by H. Did you verify how H became the owner? He says, I verified. What did you verify? I went through the incompetence register. I obtained the sale deed. I went through the sale deed. Some partitioned deed. Some will give whatever it is. I was convinced and satisfied that H was the owner. Do you have the document which shows that H was the owner of the property when he sold it to you? He says it is H. The next common question which is put is do you have any impediment to produce? Well, normally he says I have no impediment to produce. The cross examiner should stop there. Should stop there, not stop with the evidence. He has to further proceed. He can't request the court. Let him produce that. Thereafter, I will cross it. These are the courts should defer the cross examination only to enable the plaintiff or the defendant to produce the document. The title of H who sold the property to the plaintiff has been disputed by the defendant. The plaintiff says he has with him a document which discloses that H had titled the property when he sold it to him. He also says that he has no obstacle or impediment to difficulty in producing it. Having elicited this answer, a prudent lawyer appearing for the defendant or a prudent lawyer through the cross examiner for the defendant should stop there. The defendant, as I said, not going on the cross examination, he has to go to other aspects. There is no question of deferring cross examination to enable him to produce. If he does not produce, then in 114 of the evidence that it is open to the court to draw a net worth inference. Well, 114 has got number of illustrations and one of them says, if some evidence which is available in the plaintiff or the defendant is not produced, when material evidence, not all irrelevant evidence, if some material evidence is not produced, then the court can draw an inference against the plaintiff or the defendant and say, if produced, that would have gone against the plaintiff or the defendant and therefore he has not deliberately produced it. This is one aspect of the matter which lawyers need to know, which judicial officers need to know. The next question that is asked is, alright, you say that you have that document, you have gone through the document. What is the document? The title deed of gets the vendor of the plaintiff. It could be a sale deed, partition deed, release, give, will, grant or whatever it is. The experience has shown, what does the document contain? You say that it's got the property from why? Is it resided in the document that why was the owner? You say that it's got the property at a partition. Is it stated in the document that at a partition the property is shared? This is what is prohibited by section 59 and 91 to which I will come later. The contents of a document cannot be the subject matter of oral evidence. This is something which lawyers who practice in the courts need to know it. Lawyers who intend to become judicial officers and judicial officers who have already started functioning should know it. There is no question of permitting the trust examiner to ask the witness of the party, what does the document contain? It is prohibited. It will be the contents of a document. It will be the contents of a document. This is the foundation. With this, let us go to section 91 to 100. We will start with 91 and then go to 92. There is some impression that sections 91 and 92 are a little complicated. If we carefully read it, we will see there is no complication at all. We have to carefully read it, understand it, analyze it. Then it will be as simple as any other provision is. There is only one difficulty with some of these enactments. Most of these pre-constitutional enactments, particularly on the civil side, the evidence act of 1872, the contractor, the transfer of property act, these having been drafted by Englishmen and which suited the conditions prevailing in England having been borrowed, will say for the Indian situation, the language is a little tough. English lawyers and judicial officers have a fairly good command over the language. It will be difficult. Or there is an effective, true and current translation of those enactments into the local language. It will be difficult. Therefore, my advice to angle IRCs, whatever be your local language, whatever be your regional language, whatever be the language in which you argue in the court to draft your buildings, you need to have a minimum command over the English language, try to improve your vocabulary. Then only you will be able to understand some provisions of some of these enactments as I said, the contract act, the evidence act, the transfer of property act. Maybe some provisions of the Indian penal code also. This is a slightly subject, but just take it as a piece of advice or suggestion. Don't go by the marginal note given to any provision. The marginal note is supposed to be only an indicator. Many times it does not clearly indicate what the provision contains. So therefore, let us read the provisions themselves and find out what it conveys. I am reading 91. When the terms of a contract or of a grant or of any other disposition of property have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of a contract, grant or other disposition of property or of such matter except the document itself or secondary evidence of its sentence in cases in which secondary evidence is admissible under the provisions hearing before that date. There are two things here. When does section 91 apply? When the terms of a contract or of a grant or of any other disposition of property have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document. All contracts need not be in writing. I have been telling any number of times on this platform and elsewhere also that an agreement of sale does not require writing. There could be even an oral agreement of sale. If a person wants to claim the benefit of section 53A of the transfer of property yet, not able to hear. If you are able to hear, if you want to take the benefit of section 53A, it must be a written instrument and register. Otherwise, there is no need for an agreement of sale to be even written in writing. Supposing parties have chosen to reduce it into writing. Parties have chosen to reduce it into writing. Law doesn't require it to be in writing. Parties have chosen it to be in writing in such an event section 91 bars oral evidence. The next situation is and in all cases in which any matter is required by law to be reduced to the form of a document. There are certain transactions. There are certain contracts which necessarily need to be in writing. Which necessarily need to be in writing. In such an event, oral evidence is clearly impermissible. So I repeat, though law does not require a contract or a transaction to be reduced to the form of a document. But if the parties choose to put it in writing, then that writing alone needs to be produced. Oral evidence is excluded, prohibited, preclaimed, precluded. And the law requires it to be in writing. I think there are some sounds from your back. Some people are there, probably someone has to close that door. Here? A lot of sounds from your backdrop. For someone else, okay. At your place? What? Maybe that door has to be closed so that it becomes audible. Normally I would have opened, there was no problem on this stage. What's the problem today? There are a lot of sounds coming. Probably your neighbours are talking etc. Okay. Now, you still have the disturbance now? I will let you know if it comes. Okay, I will start. So therefore, when the law requires to be in writing, there is no question, well, I have purchased a property. It is worth more than Rs.100. It is an oral sale. It is not as a gratification. Then there are some exceptions and all that, we will come to that. And then what it says in such an event that contract grant of disposition will have to be approved by producing that very document. Supposing that original document is not available, section 65 of the evidence side says that a foundation needs to be laid for letting in secondary evidence. This platform on number of occasions believe that I have laid foundation with regard to section 65 of the evidence side as to when secondary evidence would be laid. I have also made it clear that there is no need to make an application for letting in secondary evidence that foundation has to be laid by entering the witness parts. This way I have made it clear. Now there are some exceptions to this. Exception one. When a public officer is required by law to be appointed in writing and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need to be approved. A revenue officer passes number of orders. A transfer stata, he effets mutation. A judicial officer records reposition. A judicial officer passes orders and judgments. A police officer does something. Now, some person doubts that he is really a public officer. No, you are not at Hasildar at all. You are not the deputy commissioner. You are not the collector. When a public officer is required by law to be appointed in writing, I am sure that there is no question of oral appointment except appointing some maidservants in the house. There is no question of giving a oral appointment. Okay, oral appointment is only to... You come to my house, I am free by 6 a.m. That's all the oral appointment. It's a question of a job. Obviously it could be in writing. And when it is shown, when a public officer is required by law to be appointed in writing and when it is shown that any particular person has acted as such officer, the writing by which he is appointed, there is no need to produce that writing. The fact that he is a public officer which requires his appointment to be in writing and when it is shown, well, he has been retodding evidence, he has been conducting cases, Hasildar visited several leaders that itself is sufficient. Exception 2, bills admitted to probate in India may be proved by the probate. Now, the Indian succession act used in meaning of what a probate is section 2, subsection F. Probate means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. So the original will is produced to the court which grants the probate. It's a different matter than the petitioner who files a petition for probate should be an executor appointed by the testator who an executor is also defined in the set. I am not dealing with those things in detail. Now, will as all of you know, requires to be attested by two witnesses. Section 6 stated the evidence that says whether will is admitted or denied to prove a will at least one attest in witness needs to be examined. Thereafter only the will is said to be proved. Now, when a probate proceeding, the question of examining the title of the testator will not arise. Whether this is the last will of the testator, whether it has been duly attested and instituted is all that is seen by the probate court. Then once that probate is given, what is its consequence? Read such explanation to, explanation to. Will is admitted to probate in India may be proved by the probate. Therefore, there is no need to produce the will that probate itself is proof of the execution of the will. How does this operate? I told you that by granting probate the court did not concern itself rather should not concern itself about the title of the testator. What all the court needs to examine is whether it is the last will of the testator, whether it has been attested by two witnesses as required by section 63 of the Indian Succession Act, whether it is proved by examining at least one attested witness in a manner contemplated by section 68 of the evidence act. If the court is satisfied about these two or three basic requirements, it will issue a probate. Probate does not establish the title of the testator. Now, a probate is obtained. It is proof of the execution of the will. In some other suit for declaration of title or partition, the opponent or the party himself claims title under a will. In that, separate in that suit for partition, declaration or whatever it be, he need not again prove the will. He need not even produce the will. This probate itself is sufficient there. That court will examine. No, no, probate is there. Probate is issued by the court. But that does not mean that the court has examined the title of the testator. One of you may execute a will in favor of someone else in respect to the house where I am staying. Two witnesses will attest it. Somebody is appointed as an executor. He files a petition. He is the will of so-and-so. Then he is duly attested. Probate is issued. Do I lose title to this plant? Impossible. What you are not required to prove is prove the will again that probate is sufficient. Then, explanation, exceptions one and two, explanation one. This section applies equally to cases in which contracts, grants and dispositions of property referred to are contained in one document. And to cases in which they are contained in more documents than one. There will be some more documents one executed by A in favor of B, B in favor of A. Some several transactions at the same time who are more documents would have been instituted. That situations are there. Then explanation two. Where there are more original than one, one original only will be proved. Explanation three. The statement in any document whatever of a fact other than the facts referred to in this section shall not preclude the admission of oral evidence. The statement in any document whatever of a fact other than the facts referred to in this section shall not preclude the admission of oral evidence as to the same fact. This is extremely important. My request to the beginner sees not to go by the illustrations given in any enactment more particularly the evidence act. Of course, as far as the illustrations given to section 91, they relate to a civil case. Hardly there will be cases where the court is required to examine some letters bill of exchange and don't go by the illustrations given there. I will tell you from my experience in what situations this would arise. The statement in any document whatever of a fact other than the facts referred to in this section shall not preclude the admission of oral evidence as to the same fact. So, I take an example. There is some written, there is some document. In the preamble of the document we say this document or this instrument executed on such and such a day by Mr. Yes, son of Y presiding at a particular place in favor of Mr. A, son of B. Did you follow? This document executed by X, son of Y he has about so many years presiding at a particular place is executed in favor of A, son of B. This is only a preamble. This does not form part of the main contents of the document. Now, there is some dispute. Let us say that yes, who has executed the document is the son of one Z, but not Y. Why some mistake? The name of Y has come there. This happens. Well, there is some, let us say Rama Murthy, Ramesh. Some people say some Rama instead of mentioning it as the document writer or the advocate who drafts it here says Ramesh instead of Ram Murthy or Nassam Murthy or Krishnamurthy is something of the kind it happens. Now, oral evidence can be given. Now, the other side says, well, you have purchased the property. You are not that X, son of Ram Murthy, you are X, son of Krishnamurthy. Well, true, I have certainly son of Krishnamurthy but by mistake, the name of my father is mentioned as Rama Murthy. Section 91 does not prohibit it. It is open to him because other than the what does it say? The statement in any document, whatever of the facts other than the facts referred to in this section shall not preclude the admission of oral evidence as to the same fact. Then let us see 92. When the terms of any such contract or other disposition of property or any matter required by law to be produced to the form of a document have been proved according to the last section. How they are proved? They are produced by their actual production and in a manner stated by in sections 57 to 72 of the evidence act. They are produced and they are proved. When the document has been proved in the manner stated in the evidence act then what is the next course? 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 very adding to or subtracting from its terms. This is strictly what is known as exclusion of oral by documentary evidence. For 91 it prohibits oral evidence in respect of certain transactions which have been produced to the form of a document or which law requires to be in writing. What 92 says is when there is such a document don't give oral evidence in contradiction or variation of the terms of the document. This is very easy to say but how does it work in practice? Well, as on today if not more at least 70 to 75 percent of the litigation in the civil courts part-time to rural India. Most of these documents transactions in respect of other cultural lands small sites and all that even to this day with so much of education awareness and everything there will be some person in the village who will be in a dominant position does not tell anything to the other person takes his signature, takes his thumb and obtains a document in what situation that oral evidence can be given is the question that is double by. Now this is invariably what happens in many of the cases at least in the state of Karnataka the popular defense for the last 20 to 25 years in suits for specific performances no doubt the defendant has executed the agreement of sale but he never intended to exist still the property plaintiff never intended to buy the property defendant wanted to loan from the plaintiff plaintiff said you executed the document in the nature of an agreement of sale agreed to sell your property then I will lend money I was forced to borrow some money as financially strange circumstances therefore I exceeded to the request to the plaintiff and executed a document in the nature of an agreement of sale which was intended to be only a security for the loan borrowed by me and neither I intended to sell the property nor the plaintiff intended to sell the property but if you simply go by the main part of section 92 it would give you an indication well the document leads like an agreement of sale it has been proved where is the question of the defendant being permitted to show that the transaction covered by it is really not an agreement of sale it is not a sale transaction at all or it is a loan transaction experienced lawyers and those who are practicing imports on the civil side and judicial officers would have known by now that in many cases the plaintiff files a suit saying true there is a sale deed said to have been executed by me in favor of the defendant it was never intended to convey any title to the defendant it is a sham document it is a nominal document for some purpose the document was executed the intention was not that I should part with the property defendant's intention was not to purchase the property it become the one equally the defendant may say a plaintiff's use him for title on the basis of a registered sale deed defendant takes that intention true the document produced by the plaintiff reads like a sale deed but there is no sell transaction at all I wanted loan the plaintiff said no more they did I wanted a sale deed I want a sale deed it is in those circumstances the document has come into being of course I have decision to the supreme court I will cite it and deal with it these have been recognized by courts what the supreme court ultimately has said is section 92 does not bar a party to show that the intended transaction is not reflected in the document the transaction reflected in the document or the transaction showed in the document or mentioned in the document was not the real transaction which we had it was something else that is not prohibited by section 92 if such an interpretation is not placed in a country like this where people are poor where they are illiterate, rustic and other things well it would have been extremely difficult for them to establish a right to their property therefore courts have effected there are good number of exceptions in the form of provisos to section 92 and 93 to 100 also make sometimes a funny reading sometimes an interesting reading and all that so let us be very clear about this position let us make this certain distinction it should be very clear about this distinction what is prohibited by 92 is if the document is already proved and if both the parties admit the nature of the document well they cannot give oral evidence standardary to it but if the intended transaction is not reflected in the document it is still open to the parties to show that the document has been given that name but we intended something else that is not prohibited by section 92 then I do not find the many seniors here may be there are a few in the state of Karnataka long back in 16's we had an act by the Mysore Agriculturalist Deter Relief Act the Mysore Agriculturalist Deter Relief Act it is an enactment of 59 or 60 or something now rich people used to lend money to poor farmers and poor rares and the agriculturalist obtained sale deed from them as a security for their own borrowed then the Karnataka Legislature thought it would be a great injustice to those people they made that enactment chain it would be open to the person who has executed that sale deed to show before the jurisdiction was then with the Assistant Commissioner the Subdivisionary Magistrate to show that it was not a sale transaction it was a loan transaction of course the act is repealed and there are good number of decisions of the Mysore of the then Mysore High Court in this regard so what I am trying to know because I am not speaking to advocates or judicial officers only from Karnataka throughout the country therefore I don't cite any decision of the Karnataka High Court I will take you through some decisions of the Supreme Court at the end so let us be clear about this position I am repeating it 92 does not prohibit a party from showing that the transaction described in the document or reflected in the document or recited in the document or mentioned in the document is not the one which we had it was something else in these circumstances we we gave this document came into be whether the plaintiff or the defendant is successful in establishing that plea is a different thing that is a matter for evidence how well what kind of evidence he gives how he fares in the cross examination how the court appreciates the evidence how the lawyers present the case they are all matters in a given case about which we can't say anything but law does not prohibit a party from showing that the transaction mentioned in the document is not even mentioned therein but it was something else our intention was totally different now let us see the provisors provisor one any fact may be proved which would invalidate any document or which would entitle any person to any degree or other relating their truth such as fraud intimidation, illegality want of due execution want of capacity in any contracting party want or failure of consideration or mistake in fact or law now those who are familiar with the provisions of the contractor obviously everybody is familiar because it is a court subject in law the certain pleas are available the parties to show that the document is initiated by some of these vices coercion undue influence, fraud, bishop presentation mistakenly this provisor one says well this document has been to be true it is an account of some fraud played by the other side intimidation it was a threat to me it is illegal the document is totally illegal then it has not been properly executed the parties were incompetent to enter into the transaction because some of them was minor some of them was a lunatic failure of consideration 23 of the contractor says heart of consideration misshades it all these things are mistaken fact or law so you will have to familiarize yourself with the provisions of section 13-20 of the Indian contractor provisor 2 the existence of any separate oral agreement as to any matter on which a document is silent and it is not inconsistent with its terms may be proved in considering whether or not this proviso applies the court shall have regard to the degree of formality of the document therefore apart from a document there may be a contemporaneous oral agreement also the lady is executed then there may be a contemporaneous oral agreement saying well after I pay back this money to execute the written very properly something of this kind the existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms may be proved then proviso 3 the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract grant or disposition of property may be proved it is a little complicated to understand I will try to make it simple the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract well the document shows the sales participation as something there is a separate oral agreement saying well apart from what is mentioned here unless you pay something else there will be no completed transaction so there could be some kind of an oral agreement also and there could be a condition precedent unless you do it this document will not come into effect this transaction will not go through instances are great but law has provided for this what I want all the participants to appreciate is this this evidence act is of the 19th century obviously drafted by English people they also knew the conditions in England in India even in those days the framers are so much of common sense that they could anticipate several such things you may also notice certain additions have been made to the evidence act from 45A, 45B, 65B presumption to that in dowry death, suicide and all that the substrate about the evidence act has remained unamended even to this day from 1972 I think a little less than 200 years it has put the test of time so is the case with the contractor so is the case with the transfer of property so is the case with the Indian penal court the more offenses have found and there they find a place there so therefore people who drafted these legislations had lot of common sense they knew what the world was what kind of transactions were going on what would happen therefore to the extent possible they provided for all 13 instances they did not expect everything to happen to the best of their wisdom to the best of their experience anticipating certain future problems and litigations they would have provided it is the courts which will have to supply some kind of omission by a process of interpretation if it is permissible then provides so for the existence of a distinct subsequent oral agreement to recede or modify any such contract grant of disposition of property may be brewed except in case in which the contract grant of disposition of property is by law required to be in writing so even that subsequent oral subsequent contract if that is also required to be in writing there is no question of a subsequent oral agreement being brought on record or has been registered at auditory law enforced for the time being as to the registration of the activity provides of fine any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of the description may be proved now if you read some decisions under section 34 of the civil procedure for dealing with the powers of the court to grant interest three periods are covered interest up to the date of suit from the date of suit till the date of degree it is called pendent allied interest then further interest from the date of degree till the date of payment decisions say interest for a period up to the date of suit the basis for that is contract between the parties or some statute should provide for it or there may be a mercantile usage or custom now it is open to the parties to show any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved now a wholesaler sells some goods to a retailer there is a credit bill if in the credit bill there is no mention that for delayed payments some interest has to be paid it is open to the plaintiff predator who is using to show that there is a mercantile usage or custom which entitles me to interest at a particular rate when there is a delayed payment so provides open space well even though that bill or document or whatever it is does not mention that the plaintiff is entitled to interest whether the plaintiff succeeds in proving that the existence of such custom is a different aspect but law enables him to place and return the existence of such a custom whether the custom is recognized whether the custom satisfies the ingredients of all that is required of a custom is a different aspect of the matter but law certainly enables the party to place evidence regarding the existence of such custom then provided that the arrangement of such incident would not be repugnant to or inconsistent with the express terms of the grant supposing that if the custom is totally against the main document then that cannot be proved provides us with any fact may be proved which shows in what manner the language of a document is related to existing facts you see I said you may avoid this reading of these illustrations but one illustration may be to go to illustration C an estate thought the Rangkuri estate is sold by a deed which contains a map of the property sold the fact that the 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 some illustrations are given any fact may be proved which shows in what manner the language of a document is related to existing facts there will be some ambiguity there this is what we have meant this is what we have meant in each state in each district certain expressions carry a particular kind of meaning a particular kind of meaning now in Karnataka itself certain expressions are used from people from Mangalore, Urpi and Datharpthi they give a particular meaning people from Kumbhli and Garwad attach a particular meaning people from world Mysore region there are certain common words so it is possible to explain it is in this sense we have said so then 93 now in the law examinations those days there used to be a popular question latent ambiguity or seen the document itself some ambiguity is seen that is called a latent ambiguity latent is some evidence is required to discover that ambiguity so this 93 to 99 they speak of these latent ambiguities and latent ambiguities which of those provisions speaks of latent ambiguity which of those provisions speaks of latent ambiguity provisions themselves are either that is a little difficult task don't go by each of those individual sections I will just give a lecture to each of them I will take some 2 or 3 illustrations and then try to explain to you the substance of this 93 to 99 when the language used in a document is on its face ambiguous or defective evidence may not be given of the facts which would show or supply its defects illustration A3 is in writing to sell a horse to be for rupees 1000 or 1500 evidence cannot be given to show which price was to be given it is a patent ambiguity so instead of horse you read it as house nobody sells horse these days and now house A enters into an agreement of sale with B saying that I will sell this house for 10 lakhs or 15 lakhs there is no question of oral evidence being given to say well he agreed to sell it as 10 lakhs by the defendant plaintiff cannot say I agreed to sell it for 15 lakhs this is a patent ambiguity there is no question of oral evidence being given because it says he is on its face ambiguous or defective then a deed contains blanks evidence cannot be given of facts which would show how they were meant to be written the document is blank this was the pattern we wanted this to be a sale we wanted this to be a margin such an evidence cannot be given 95 Evidence has to document unmeaning in reference to existing facts when the language used in a document is plain in itself but is unmeaning in reference to the existing facts evidence may be given to show that it was used in a peculiar sense this illustration is good A sells to be by deed my house in Taltata he mentions in the document I have a house belonging to me in Taltata I am selling he had no house in Taltata but it appears that he had a house at Haurah of which we had been in possession since the execution of a deed these facts can be proved to show that the deed related to the house at Haurah well it is a good illustration I will try to explain this now in certain places there are some extensions named after some individuals named after some the name of a god or whatever it is I presently I am in Bangalore I have some fair acquaintance with Mysore there is an extension a very popular extension in Bangalore city called Jainagar in Mysore also there is an extension called Jainagar now somebody has a property in Jainagar Mysore he has a property in Jainagar Mysore he executes a sale deed in fair the property at Mysore Jainagar in favour of someone else since he is a man in Bangalore the document writer or the advocate who drafts it by some mistake while describing the property in the schedule to the document instead of saying property by number so and so bounded on the east west etc situated in Jainagar Mysore he mentions it as Jainagar Bangalore so what he sold was the property situated in Jainagar Mysore but by some mistake instead of mentioning it as Jainagar Mysore it is shown as Jainagar Bangalore that person in whosoever the sale deed is executed asks him well you have sold a property to be in Mysore this is the sale deed well you have not given handed over position to me please well I have not sold any property to you in Mysore see the sale deed it is Jainagar Bangalore I have not sold any property to you Jainagar Mysore there is the question of handing over position then this person can lead oral evidence to show that this man does not own any property in Jainagar Bangalore at all even if he owns a property in Jainagar Bangalore he would not have sold this for this consideration obviously the value of the house or property in Jainagar Bangalore is far above the value of a property of a similar dimension in Jainagar Mysore you do not own any property at all the house where you are staying in Jainagar Bangalore is a rented house assuming that it is your own house you would not have sold the property for a lesser sum therefore what was intended to be sold by you was a property owned by you in Jainagar Mysore not the property owned errors would creep in if 92 is strictly red row no oral evidence orderly to the terms of the written document where will the litigants go therefore apart from the provisos 1 to 6 to section 92 which are exceptions we have other exceptions covered by 93 to 99 I have read a few of them 93 and 94 I have read 95 also I have read then 96 90 one more I forgot we will see 94 when language used in a document is plain in itself and it applies accurately to existing facts the evidence may not be even to show that it was meant to apply to such facts so there is no ambiguity at all everything is clear no no we did not mean like this that is prohibited now we shall come to 96 when the facts are such that the language used might have been meant to apply to anyone and could not have been meant to apply to more than one of several persons or things evidence may be given of facts which show which of those persons or things it was intended to apply to illustrations he agrees to sell to me for rupees 1000 my white horse he has two white horses the evidence may be given of facts to show which of them was meant as I said let us read this horses house he agrees to sell to me some house in a particular place for 10 glass he has named those houses paper some in the name of the family or some person in whosoever he has or something he has named there are two portions for both the portions he has put the same name there are two elements he says my house has something absolutely but he has two properties somebody would have told whichever house you purchase you put the name of Ganesha or something of that kind for some reason he has put it there is no compulsion that he should not when he breadbarth or anything of that kind because both the houses belong to him now he has agreed to sell one of those houses now there are two houses which is the house he has agreed to sell or which he has already sold then oral evidence may be given yes you have those two houses you have named both the houses you have given the same names to both the houses what you sold to me or what you agreed to sell it to me was the house on the eastern side or the western side which was on this road which was in this extension and not in the other extension then there is one more illustration he agrees to Agapani beat to Hyderabad the evidence may be given of that showing whether Hyderabad or Hyderabad will see was went well those were times when such things provided therefore illustrations are given when the language used applies partly to one set of existing pads and partly to another set of existing pads but the whole of it does not apply correctly to either the evidence may be given to show to which of the two it was meant to apply he agrees to sell B my land at yes in the activation of 5 he has a land at yes but not in the activation of 5 see one part is true what he has agreed the land at yes and in the document he says it is in the activation of 5 certainly has a land at yes but it was not in the activation of 5 but it was in the activation of someone else so evidence may be given of pads showing which he meant to sell did he meant to sell the land or the house in the activation of 5 or set 98 the evidence may be given to show the meaning of illegible are not commonly intelligible characters of foreign absolute absolute means worn out old not in existence technical local and provincial expressions of abbreviations and of words used in a peculiar sense as I said each region uses certain expressions certain things are common but certain names are given for certain transactions for certain life sense of lands and all that a person from this year may not be knowing of its meaning therefore what actually it is meant the evidence may be given to show the meaning of illegible writings also something is illegible so this is what is written whether it is true or not that is a different thing some illustration is given then 98 98 persons who are not parties to your document or they represented is their interest may give evidence of הה???? standing to show a contemporaneous agreement varying the terms of the document persons who are not parties to a document are they represented is their interest may give evidence of Brett impacting to show a contemplation agreement varying the terms of the document Well, A executes a Regiment of Sale in favour of B. Now, it is open to C to show that there is another Regiment executed by A in my favour. You can't say that there is already a written document executed by A. I won't permit you to read whole evidence because it is not a party to get targeted. Now, how does this practically work is what I have done. This is a rule of evidence which the court will take into consideration at the time of writing judgment and appreciating the evidence. This exclusion, please know. See, if we just read these provisions without going to the court, we get some impression. All right. In the plain, it is stated that it is a sale date. What is produced is a sale date. He wants to show, defendant wants to show that it is a margin date. No, no, no, 92 says oral evidence is excluded. A man who has not come to the court, who has only read the books, what he would say, no, no. When once that defendant comes to the court, the judge will tell him, no, you are excluded from proving that it is a margin. No, you go away. No, that's not how it happens. Now, that evidence would come. Whether the case of the defendant is covered by any of the exceptions referred to in section 92, whether it is open to him to bring the case under any of those section 93 to 99, all that is a matter for appreciation of evidence. There is no question of the get telling. No, no, I have produced this document. I guess this document, it has already been proved in a manner stated by 68 to 72. I don't permit you to say that it is a market date. It doesn't happen at all. Nowadays after CPC is amended, that situation does not arise because everything stated in the client and the written statement fights a place in evidence. So all these things are ultimately to be taken into consideration by the lawyers while arguing the matters. No, this is the time. Is there any exception? As you made out a case of exception, is it covered by any of the provisions to 92? Is it covered by 93 to 99? Otherwise, whatever the oral evidence is given is totally inadmissible. Sometime back when I had spoken on this platform about the admissibility of unstamped, insufficiently stamped and unregistered documents. And also about trial of partition suits. I had brought to the notice of the audience. A decision of the Supreme Court in the AER 1960 Supreme Court based on 1297 or 17 is a very peculiar case. Now, please understand the legal position. Please be very clear about this. That's true for you. God is like my daughter. There it is. This is AER 1968 Supreme Court 1299. AER 1968 Supreme Court 1299. Shiro Mani versus Hav Kumar. Shiro Mani versus Hav Kumar. I have exhausted myself in telling on this platform and a number of other platforms that are in a few straight decisions here and there, which were renderer taking into consideration some circumstances, equitable considerations and all that. The consistent view taken by the Supreme Court is that only under the Hindu law, moral partition is permitted. But when once that partition is put in writing, if that, if under that very document a division has taken place or a partition has taken place, that requires registration. But if it's a record of a prior partition or a random of an earlier partition, then the partition took place a month back, two years back. There was no writing. Today we are reducing into writing. That writing does not require registration. I have said this a number of occasions. Now, this AER 1968 was a case where the party had relied upon an unregistered partition deed. It was not a memorandum of an earlier partition. The document indicated that under that very document, a division had taken place. Therefore, it was inadmissible in evidence to prove a partition. Then the question was, all right, under the Hindu law, whether there can be a moral partition also. Why not moral evidence to show that there is a partition? Parties have separated themselves. They are cultivating the land separately. They are living separately and all that. Supreme Court said, this written document is inadmissible in evidence for random registration. That moral evidence is inadmissible in law of such a magnitude. So, what practically what happens in a suit for partition appearing for the defendant, if you have an unregistered document under which division has taken place, practically you have no defense at all. You can't let in moral evidence because it is prohibited by section 92. You can't rely upon that document. Well, whether there is collateral purpose and all that, that could be collateral to present today's discussion. I don't want to go into it. There you see, that situation should be there. And I think the more or less from the same line, following this, we have AER-1988 Supreme Court, Paid-881, AER-1988 Supreme Court, Paid-881, Roshan Singh versus Zail Singh. I am not referring to any other decision under the registration and our staff ads are not in the visibility of documents because that is not the subject for today's discussion. But since we are discussing about section 92 of the evidence that I thought that this decision may be of some degree. It's the kind of refreshing the memory of those who have already heard me on this platform, a source of you information to those who are hearing me for the first time. Then there is section 100. Nothing contained in this chapter shall be taken to affect any of the provisions of the Indian FACTS-Session Act as to the construction of bills. I am not dealing with it because it requires a good lot of preparation on my side and it requires a separate session, which I don't propose to do. I am only drawing your attention to those particular provisions in the Indian FACTS-Session Act, which you also need to keep in you. Nothing contained in this chapter shall be taken to affect any of the provisions of the Indian FACTS-Session Act as to the construction of bills. Now, chapter 6 of the Indian FACTS-Session Act. I am sorry, this Indian FACTS-Session Act has different parts. Totally it has 11 parts. In each part, separate chapter numbers are given. So, what I am referring to is chapter 6 in chapter 6 in part 6 of the Indian FACTS-Session Act, Testamentary FACTS-Session Act. Part 6, chapter 6, the title of the construction of bills. Sections 74 to 149. Some of these sections, you find some words found in these sections, almost similar to the works used in this section 93 to 99. I am honestly telling you, I am not prepared myself to speak on this and I don't do it also. It requires some preparation on my part also to speak to them. And please don't ask me any question without the because I am not prepared for that. I am only trying to tell you. You need to read those provisions also because section 100 says nothing contained in this chapter shall be taken to affect any of the provisions of the Indian FACTS-Session Act as to the construction of bills. Which are those sections which deal with the construction means interpretation of those bills is contained in section 74 to 149. Now, this oral evidence which is prohibited by this documentary evidence, it is thought the rule of parole evidence. There are two words with the same pronunciation, but slightly different spelling. P-A-R-O-L parole, parole evidence is in the context of this section 92. Another parole in the context of criminal cases, accused is in confinement, I mean is in custody for some reason is allowed to go out of the jail for some time that is letting him in on parole, that is temporary. That is where the spelling is P-A-R-O-L-E. In the context of this section 92, it is P-A-R-O-L, parole evidence, something like oral evidence. Now, you get some indication of this in law of evidence by Sartar. This is edited by MC Sartar and SC Sartar and PC Sartar because I have found that Sartar is a very common name there are few other authors by the same name Sartar because I have seen some other book, what is stated in the book by Sartar with me is something totally different there. The book I have is one edited by MC Sartar, SC Sartar and PC Sartar. It is 16th edition. It is 16th edition. Of course, one other person is Sudeepthu Sartar. There are other things. Now, in this edition which I said 16th edition volume 1, there it is stated, the rule in section 90 where it deals with the exclusiveness of documentary evidence and that in section 92 related to its conclusiveness are often loosely referred to as parole evidence. In Stephen's pages, they are dealt with under one head. In the evidence that they are printed as separate rules and since neither the excluding principles nor the exceptions to the rules are quite identical, this seems to preferable for the distinction between etc. In fact, in this book on my hand, there is a tabular column explained in the difference between section 91 and 92. It is also stated there. So, this parole evidence is something more relevant when it is pregnant. Now, let me refer to a few decisions in this context. 1979, volume 4 SCC paid 66 0. 1979, volume 4 SCC paid 66 0. Krishna bhai is a long name. I'll give you only the first failure. Krishna bhai versus Appa Saheb. Appa Saheb. This is one decision which tells us in detail. The scope of sections 91 and 92, the evidence that we are unable to accept is Desai's argument that the process adopted by us would involve a contravention of section 92, the evidence that some argument of that was before the Supreme Court. If this is the way this document is construed, then we would be violating section 92. We would be wearing our contradictory terms of a written document. The Supreme Court did not agree. This is what the Supreme Court said. Firstly, in this process, which is essentially one of construction of the deed, exhibit 39, no question of contradicting, varying, adding to, or subtracting any term of the disposition is involved. The deed exhibit 39 falls into two distinct parts. The first of them comprises the preamble or the preliminary recital of a past fact, preliminary recital of a past fact, something had happened. This part does not contain any term or disposition of the property. Such terms are confined only to the second part. Section 92 privates only, the varying of the terms of the documents, not the memoranda or recitals of past, bereft of dispositive terms, particularly when the correctness of the whole already part of the recital is in question. We are primarily concerned with this preliminary recital, which does not fall under the dispositive or operative portion of the document. The question is whether or not this recital of a past oral intimation by Ramachandra Rao to Nara and Rao had caused severance of joint family status. It is settled off that a clear intimation by a co-partisanal to the other co-partisan of his intention to sever the joint status need not be in writing, need not be in writing. Sometime back some honorable judge of the Karnataka High Court was telling jokingly on the dining table when you are dining with your children and other things. If one of the sense says from tomorrow I'm not taking food in this house, then there is that severance in status. So that it is not, he is not required to communicate in writing. It is settled off that a clear intimation by a co-partisanal to the other co-partisan of his intention to sever the joint status need not be in writing. For these two-fold reasons, the barring section 92 against the invisibility of extensive evidence for the purpose of showing that the insurgency of the words for your maintenance in the recital is wrong, unread, unmeaning and the client nature of the executed's own brain is not attracted. Secondly, there is ample authority for the proposition that when there is a dispute in regard to the true character of a writing, that's what I have been telling. Evidence dehorsted document can be led to show that the writing was not the real nature of the transaction, but was only an illusory, fictitious and tolerable device which broken something else and that the apparent state of affairs was not the real state of affairs. So what appears from the document is not the real transaction. It does not depict the real affairs. Something else was in the contemplation of the parties. That is why we have seen this is only a sham document. It is only a nominal document. It was never acted upon. No title has passed out to the other side under this document. Then we have 1982 one SCC page for 1982 one SCC page for Ganga by versus Chabu by Ganga by versus Chabu by 1982 volume one SCC page for the next intention on behalf of the Appalachians. That's section one of such a 92 of the evidence that bars the respondent from contending that there was no say and it is submitted that the respondent should not have been permitted to lead parole evidence that is oral evidence in support of the contention. That's what I said in a suit for specific performance with defendant contents. It is only a security for the loan advanced and really not an agreement of sale, though it is signed as a document of sale. There is a sale deal. I've said about a spare document of sale. There's a sale deal. It is open to the other side to say it was not intended to be a sale transaction. It was intended to be a loan transaction such a 91 of the evidence that provides that in the terms of a contract or of a grant or of any other disposition of property have been reduced to the bottom of the document. And in all cases in which the matter is required, but of course it is a reproduction of the section. Now I'll come to what the Supreme Court has said. It is clear to us. It is clear to us that the bar imposed by subsection one of section 92 applies only when a party seats to rely upon the document embodying the terms of the transaction embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself. And no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The subsection is not attracted. When the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham document. Such a question arises when the party asserts that there is a different transaction altogether and what is regarded in the document was intended to be of no consequence, whatever. For that purpose, oral evidence is admissible to show that the document executed was never intended to operate as a regimen, but that some other agreement altogether not retarded in the document was entered into between the parties. Some decision of the previous outsell is also cited. The trial court was writing permit in the respondent to lead parole evidence in support of a plea that the sale dated so-and-so as a sham document and never intended to be acted upon. It is not disputed that if the parole evidence is admissible, the finding of the court below in where the respondent was to be proved, the second transaction on behalf of the appropriate party. Then we have 1998, 7 SCC 498, 1998, 7 SCC 498, Vishnu Devo Narayan Ray, Vishnu Devo Narayan Ray versus Anumal Devi, Anumal Devi, some provisions for the DPR and all that have been referred to. It follows, it follows that an execution and registration of a sale deed, the ownership title and all interest in the property passed to the purchaser unless a different intention is either expressedly or necessarily implied, which has to be proved by the party accepting that the title has not passed on registration of the sale deed. Such intention can be gathered by intrinsic evidence, namely from the other governments in the sale deed itself or by other attending circumstances subject of force to provisions of section 90 to the evidence. In a normal course, when there is a registered document, title passes there on, but it would be open to the parties to show that we had intended the sale that the title should pass on at a subsequent point of time. Then 1999, 2 SCC 583, 1999, 2 SCC 583, Hindu Public and another, Hindu Public and another versus Rajdhani Puja Saviti, Rajdhani Puja Saviti, 1999, 2 SCC 583. Subcontention was served in 1922. In our view, this is not correct in law. Orel evidence could be induced to show that the recitals in a deed were nominal and were not intended to be acted upon or that they were not meant to alter the existing set of facts. Then 2000, volume 1 SCC 434, 2000, volume 1 SCC 434, Ishwara Das Jain, Ishwara Das Jain versus Sohan Law. Ishwara Das Jain versus Sohan Law. Well, apart from section 34 of the evidence that is also deals with section 92 of the evidence that the clear the defendants of this court has held in Gangubai versus Chabubai that is the decision which I gave 1982, 1 SCC 520. It is permissible for a party to a deed to contend that the deed was not intended to be acted upon, but as only a sham document. The bar arises only when the document is relied upon and which terms are sought to be varied and contradicted. In the above case, it was observed by Justice B. A. Desai as follows. 2003, 2003, volume 6 SCC 595, 2003, volume 6 SCC 595. I have referred to some passage from Gibson's evidence that bit more evidence that it has been described by bit more stating that the rule is in no sense a rule of evidence, but a rule of substantive law. It does not exclude certain data because they are for one or other reason untrustworthy or undesirable means of evidences of fact to be proved. It does not concern a preventive mental process. Then section 91 and 92 apply only when the document on the face of it contains or appears to contain all the terms to the contract. 91 is concerned solely with the mode of proof of a document with the limitation imposed by 9 with limitation imposed by 92 relates only to the parties to the document. If after the document has been produced to prove its terms under 91 provisions of 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting varying, etc. Section 91 would be inoperative without the aid of 92 and similarly 92 would be inoperative without the aid of section 91. The two sections however differ in some material particulars. 91 applies to all documents whether they purport to dispose of rights or not whereas 92 applies to documents which can be described as dispositive 91 applies to documents which are both bilateral and unilateral unlike 92 the application of which is confined only to bilateral documents. Both these provisions are based on best evidence good. The law will not couple and mingle matters of speciality which is of the higher account with matter of government which is of inferior account in law. There are some English judges. It would be inculminates that matters in writing made by the grounds of exclusion of extrinsic evidence are to admit inferior evidence when the law requires superior would amount to nullify in the law and when parties are deliberately put their agreement into writing. It is conclusively presumed between themselves and their previous that they intended the writing to form a full and final settlement of their intentions and one which should be placed beyond the rate of future controversy that they can prepare to break. But basic rule is no oral evidence to contradict exceptions I have told you they are confined. The next decision is 2004. Volume 4 SCC paid 794 2004 volume 4 SCC 794 Parveen Darsingh versus Renu Dautam 2004 volume 4 SCC 794 Parveen Darsingh versus Renu Dautam. The rule has to be exclusion of oral by documentary evidence doubts the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is therefore not excluded from demonstrating the untrue or collusion nature of the document. He executes some document in favor of me in respect of a property belonging to C. Can the court say no no there is a written document you see you cannot contain that you are the owner no. The rule has to be exclusion of the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is therefore not excluded from demonstrating the untrue or collusion nature of the document or the fraudulent or illegal purpose for which it was brought into being. An inquiry into reality of the transaction is not excluded merely by availability of writing inside in the transaction. Some decision is cited is an authority that with also decision I said is an authority for the proposition that oral evidence in departure from the terms of a written deed is admissible to show that what is mentioned in the deed was not the real transaction to the parties but it was something different. Then 2009 4 SCC 193 2009 4 SCC 193 Kalia Perumal versus Raja Gopal 2009 4 SCC 193 Kalia Perumal versus Raja Gopal We have heard the 11,000 for the parties a claim and consider the evidence oral and documentary for which part of the data. The question posed for our consideration is whether title to the disputed properties passed to the appellate when the sale date at 26 since 1983 was registered on 26 10 1983 though admittedly no amount was paid towards consideration to the respondents so whether the title passed on when admittedly no consideration was paid with the question then sale is defined as being a transfer of ownership for a price in a sale there is an absolute transfer of all rights in the properties sold no rights are left in the transfer of the prices fits by the contract antecedent to the conveyance price is the essence of a contract of sale there is only one mode of transfer by sale into not the immobile property the value of rupees 100 or more and that is where it is not instrumented it is now well settled that payment of entire price is not a condition precedent for completion of the sale by passing of title as section 54 of the transfer of property at defined sale as a transfer of ownership in exchange for a price paid or promised or part paid or part exchange for a price paid or promised the sales consideration is not paid on the debt the document is instituted the purchaser promises to pay the sales consideration on a subsequent day it is if the intention of the parties was that title should pass on execution and registration title would pass to the purchaser even if the sale price are part thereof is not paid in the event of non-payment of price or balance price as the case may be the remedy of the vendor is only to super the balance price he cannot avoid the sale he is however entitled to chart upon the property then normally ownership or title to the property will pass to the purchaser and registration in the sale deal with effect from the date of execution of the sale deal but this is not an invariable rule as the true test of passing of property is the intention of parties though registration is prima facie a proof of an intention to transfer the property it is not proof of operative transfer if payment of consideration of price is a condition precedent for passing of the property the answer to the question of the parties intended the transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place only after receipt of the entire consideration would depend on the intention of the parties such intention is primarily to be gathered and determined from the recitals of the sale deal when the recitals are insufficient or ambiguous the surrounding circumstances of the content of the parties can be looked into for ascertaining the intention subject to the limitations preserved by section 19 the last decision in the series is 2011 6 SCC 555 2011 6 SCC 555 Jaanat Dulari Devi Jaanat Dulari Devi versus Kapil Devorey Jaanat Dulari Devi versus Kapil Devorey 2011 6 SCC 555 a judgment by honorable justice R. V. Ravindran on the contentions are the following questions arise for consideration of the appeal question number one whether the appellants had paid Rs. 17000 towards sale price to the second respondent question number two whether title to the property passed to the appellants or execution of the sale deed whether the second respondent vendor was justified in cancelling or repudiating the sale on the ground that the sale consideration was not paid for whether the appellants are entitled to the relief climbed in the suit on the first question whether the appellant had paid Rs. 17000 the finding of the fact recorded by the first appellant court that the appellants had not established the payment of Rs. 17000 after consideration of the entire evidence often by the high court in the second appeal does not call for interference in an appeal under article 1. It is a finding of fact therefore the supreme court said that the finding of the trial court and the appellant court that is the high court that the appellant had not established that the entire sale price was paid to the second respondent was accepted regarding the other questions whether the title to the property passed to the appellants on execution of the sale deed there this question has been referred to the earlier decision that I have referred to has been stated a few more decisions and the legal position is reiterated in this case now this is the large and short of the scope of sections 91 to 100 of the evidence that as I said we will have to start from section 59 of the evidence that which says that contents of a document can be proved only by the production of the document and proof of the document which is the best evidence who is incorporated in it so 91 says that the parties intent a transaction or a contract to be in writing that writing alone needs to be produced or it wise that a transaction or a contract should be in writing there should be that writing 92 says that when the writing is produced and proved in a manner provided by section 67 to 72 of the evidence overall evidence to contradict vary the terms of the contractor that is impermissible subject to the exceptions found in provisors A2 A2 93 to 99 and also provisors 100 of the evidence that says that the provisions of the Indian Substitution Act regarding construction of fields are not affected by the evidence that yes any questions I will be taking from the YouTube this is by Ravi Pandey whether confessional statements in writing before the I.O of some other case by can we make it visible in the case of another case if the accused person making confession is common in both the cases this is totally outside the scope of today's subject as you have heard me I have spoken more in respect of civil cases because application of sections 91 to 100 they arise in court when we deal with a civil case will you please repeat the question anyway he has asked if I can answer it without further investigation I will answer it I don't want to say that I don't want to answer if it is not within the subject discussed I cannot understand please repeat the question whether the confessional statement in a writing before the I.O in some other case we made it can be made visible in the trial case if the accused person is making a confession is common in both the cases what the question is confession before a police is totally privated by law whether it is in this case or some other case it has absolutely no evidentiary value accused may be common now probably the question is in this context I have understood what practically happens is this a person is apprehended by the police in relation to a particular crime he makes a confessional statement let us take a theft case he says I went to the house of Mr. Yates broke open the lock entered him ransacked the house and stole something next day I went to the house of people now the police have apprehended him or arrested him in the case pertaining to the theft said to have taken place in the house of Yates a particular case is registered number is given now in the process he also makes a statement a confessional statement related to some other crime or theft committed by him investigation goes on those slides but ultimately this confessional statement is produced in the main case or in some other case whatever it is certainly it is the same accused whatever said and done it is a confession made to the police 24 25 and 26 of the evidence act very clear confession obtained by a promise or by inducement is no confession 25 confession made to a police is no confession 26 confession in the custody of a police is no confession 27 is an exception is that confession leads to discovery of a fact only so much portion of the confessional statement which leads to that discovery alone is relevant and invisible in evidence therefore my answer to his question which in my opinion does not require further investigation on my part is this now whether it is the same case whether it is the same accused or some other accused the question of the its admissibility in evidence would not arise because it is a confession made to a police it would be admissible in evidence provided that any portion of that confessional statement has led to discovery of a fact under section 27 27 starts with the word provided normally there will be no independent section starting with the word provided it will be always provides out to the main section but in the evidence that there are two sections it starts with the beginning of the words provided one is this 27 and another is 108 107 says if a person is not heard of for a period of 7 years 107 says if a person is known for 30 years the person who says that he is dead has to prove that he is dead 108 says provided if a person is not heard of for a period of 7 years by those who naturally have heard of him then the presumption is that he is dead 27 is also a section which starts with the word provided it says provided that if any fact is deposited to as discovered in consequence of the information furnished by a person accused of an offense in the custody of a police officer so much of such information whether or not it is confessional as leads distinctly to the fact thereby discovered meaningful only that portion of that confessional statement which leads to discovery of a fact if I remember correctly the first occasion on which I spoke on your platform was with regard to this statement intersection 27 164 and 161 confessions and other things that was the first occasion somewhere in 2020 when the COVID started now the leading case on the point is that the privilege would be decision that is Kuru Kuri Kottaya versus Emperor 1947 privilege youngsters will do well to read that judgment now what is important is many youngsters are of the impression that the 27 statement is only for the recovery of some weapons recovery of stolen articles no it is discovery of a fact a fact which was not known to the investigating officer prior to this accused disclose in it from the accused he discovers that fact now let us take a murder case and the accused commits murder of a person who carries a dead body to some other land he does not keep the dead body in the place where he actually killed that man he carries the dead body and puts it somewhere the owner of the clan sees some dead body lying there he lodges a complaint with the police saying that I am seeing a dead body there are some chop marks and other things I think somebody has killed him he is not an eye witness to the incident he does not know who the accused is so he only says I am seeing a dead body some person appears to have been killed based on that investigation starts now some person is apprehended he says well if taken I will point out the place where the incident took place and I will also point out the place where this dead body was lying now where actually the incident took place was not known to the police till the accused would give that so it is discovery of the fact of the place where the incident took place to that extent it would be as visible in evidence it is discovery of the fact but oftentimes what is discovered is some dead body thrown there some weapon of events some stolen article yes any other question yes any other question yes sir though not directly related let's assume some witness denies that he doesn't want to come for a cross examination then what is the scope then adverse inference has to be drawn there is no question of saying that evidence of the witness who has been examining chief is distorted and all that the point is he does not render himself for cross examination you keep that evidence ultimately while appreciating evidence you will say whether he not rendering himself for cross examination has any effect in the case supposing he has in the chief examination he has only spoken about second documents which are not in dispute why that exclusion why that evidence should be distorted so if then the serious dispute about what he has stated in the chief examination not subjecting himself for cross examination will definitely for sure before to draw adverse inference there is some bad practice of discarding the evidence or expunging the evidence at that time itself there is no question of expunging and discarding the evidence it would be there at the time of judgment the court has to consider what is the effect of he not subjecting himself for cross examination if it is a case where cross examination was absolutely necessary now let us say he speaks about two documents the execution of which is not in dispute at all it is only about two documents let us say witness he is an attesting witness to some document he says in my presence the document was attested already he does not tender himself for cross examination if the execution of the document is not in dispute at all whether he has subjected himself to cross examination or not is of no consequence but if there is something else other than the attestation or execution about which he has spoken which is denied then certainly to that extent he not tendering himself for cross examination will never happen there is no question of discarding or expunging his evidence at that time well enough opportunity is given he has not tendered himself for cross examination the court should wait a note of it that is all in the proceeding sheet and in the order sheet and proceed with the trial yes next question this is Dr. Jasima can adoption date be proved by oral evidence can a document be proved by oral evidence adoption date adoption date can be proved by oral evidence now who the point is this adoption as such does not require a date now if there is a date if both the person giving the child in adoption and taking the child in adoption have signed that document and the document is registered then there is a presumption under section 16 of the Hindu adoptions and maintenance act to the effort that the adoption is in compliance with the provisions of this act in fact decisions say the section does not presume that in fact an adoption took place it only presumes that the formalities required by the adoption act have been complied with the registered instrument neither the registration act nor the Hindu adoptions and maintenance act requires an adoption to be in writing but what does 91 say is something is reduced into writing though law does not require it to be in writing oral evidence is in for a discipline oral evidence is in for a discipline so adoption is something for which law does not require it to be in writing parties have chosen to put it in writing but the next question is is it a contract or a disposition it is neither a contract nor a disposition it is neither a contract nor a disposition to me it appears despite where there being oral evidence may be admissible to prove that adoption took place because I don't think that there will be adoption due to a disposition of a contract or a disposition for doing section 92 maybe I had not anticipated this question there was no occasion for me to examine from the way in which section 91 is couched this is my first impression there are some decisions to encounter to what I have said I will with all humidity accept second question it accept forward he says if a sale deed does not mention the price of all can the same prove by way of oral evidence yes yes it could be it could be it could be this is by a main brain he says can the plaintive reopen recall or represent the deferred IA as PO has written for the arguments in order sheet and what provisions I did not follow the question the question number 2 out of the main brain he has posted 3 questions what is that question second question the second question out of those 3 questions which main brain has posted in the chat box can the plaintive reopen recall or represent the deferred IA as PO has written for arguments in order sheet and under what provisions he has written the deferred IA as PO has written for arguments in order sheet can you reopen that evidence question number 2 what is his name the main brain main brain main brain let me see can the plaintive reopen or represent the deferred IA as PO has written for arguments in order sheet there is no specific provision here now an application was filed some interim application was filed the deferred IA has written for arguments what provision reopen or retall or represent the deferred IA now it was mentioned as argument somehow it was not taken up well he can bring to the notice or early or by way of application the 152nd CPC is saying that this application has pending you have deferred consideration for that probably what he means is for arguments means perhaps he means for arguments on the main matter he can bring to the notice of the sport by some mistake it is posted for arguments on the main matter an order on this IA is required for this purpose maybe even the other side has no objection even a world submission may be sufficient or if the other side is absent or he still insist on something being in writing an application 152nd CPC should be sufficient and again it depends on at what stage the matter was why that application was filed supposing it was an application for temporary invention now the case is ripe for arguments on main matters why should the court reopen the matter to only to hear the application for temporary invention supposing it was an application for amendment of the complaint or for approval of a party well there is some point in reopening the matter and here in the internal order last question we will be taking this is by Sujatha in a plain paper written as rupees 6 lakhs this man has one more question can the court start argument stage without reopening the disposes the same thing question number 2 and question number 3 they are related that's all alright net who is the next man Sujatha Sujatha in a plain paper written as rupees 6 lakhs taken for his father's personal need is it admissible in evidence what does it mean in a plain paper no the acknowledgement of some amount has not been there is no agreement this is a thing related to stamp that now the point is what is the content of that document means the transaction which is written in a plain paper first of all the spelling is wrong it should be PLA IN anyway she has written it is plain it doesn't matter it should be a plain paper what she means is that something is written on a paper which is not duly stamped a plain paper written as rupees 6 lakhs taken for his father's personal need now the point is what is the nature of the document is it a promissory note for which some stamp duty is required under the Indian stamp that is it a money point for which some stamp duty is payable under the local stamp that it depends on what actually the document is so it depends if it is the document is not sufficiently stamped in the section 35 the Indian stamp that corresponded to 34 of our at may be some other state as some other function it becomes admissible in evidence only on payment of duty and penalty in the state of Karnataka it is 10 times the if shit duty may be the position elsewhere also is the same because 35 the Indian stamp that also to my knowledge says 10 times the penalty yes it is the next question one is implicit says can we say that section 93 is patent and rest of the section 94 to 100 is related let me see 93 when the language used in a document is and space ambiguous or defective evidence may not be given of the facts secondly it is a case where it is a patent for ambiguity 94 of the language used in a document is played in itself and when it applies accurately to existing facts the evidence may not be given to show that it was meant to apply to such facts it is also patent 95 when language used in a document is played in itself but is unmeaning in reference to existing facts it is a latent ambiguity 96 when facts are said that the language used might have been meant to apply to anyone and could not have been meant to apply to more than one this again is related 97 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 directly to either evidence may be given to show to which of the two parts certainly it is related 98 evidence will be given to show the meaning of illegible or not commonly intelligible characters so it could be both illegibility well done something is illegible it may be patently illegible or if totally it cannot be read if it is patently illegible if a part of it could be read alright these are things these only these only serve the examination purpose practically they are of no use then yes next so thank you and we would also like to thank Kaushik and his wife we keep them blocked for the entire audience from PanIndia and abroad for sharing their knowledge and it is only because of them so we acknowledge on behalf of BeyondLaw CLC and all those viewers for watching right now and subsequently also for the contribution towards this knowledge sharing process and thank you sir we are always indebted as I always say you have taken me beyond Tarnataka no you have taken me beyond Tarnataka no it's a PanIndia in fact abroad also a lot of people watch it from Pakistan, Bangladesh US sector also keeping in view the topic itself okay thank you good night thank you good night