EVIDENCE ACT

 

The Indian Evidence Act, 1872

-------------------------------------------------------

(Act no. 1 of 1872)

 

 

CONTENTS

 

 

Sections

Particulars

 

 

 

Preamble

 

 

PART I

RELEVANCY OF FACTS

 

 

CHAPTER I

Preliminary

 

 

1

 Short title, extent and commencement

2

[Repealed]

3

Interpretation clause

4

Interpretation clause (contd.) 

 

 

CHAPTER II

Of the relevancy of facts

 

 

5

Evidence may be given of facts in issue and relevant facts

6

Relevancy of facts forming part of same transaction

7

Facts which are the occasion, cause or effect of facts in issue

8

Motive, preparation and previous or subsequent conduct

9

Facts necessary to explain or introduce relevant facts

10

Things said or done by conspirator in reference to common design

11

When facts not otherwise relevant become relevant

12

In suits for damages facts tending to enable Court to determine amount are relevant

13

Facts relevant when right or custom is in question

14

Facts showing existence of state of mind, or of body or bodily feeling

15

Facts bearing on question whether act was accidental or international

16

Existence of course of business when relevant   Admissions

17

Admission defined

18

Admission by party to proceeding or his agent by suit or in representative character by party interested in subject-matter by person from whom interest derived

19

Admission by persons whose position must be proved as against party to suit

20

Admissions by person expressly referred to by party to suit

21

Proof of admissions against persons making them and by or on their behalf

22

When oral admissions as to contents of documents are relevant

23

Admissions in civil cases, when relevant

24

Confession caused by inducement, threat or promise when irrelevant in criminal proceeding

25

Confession to police officer not to be proved

26

Confession by accused while in custody of police not to be proved against him

27

How much of information received from accused may be proved

28

Confession made after removal of impression caused by inducement, threat or promise relevant

29

Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.

30

Consideration of proved confession affecting person making it and others jointly under trail for same offence

31

Admissions not conclusive proof, but may be estopped   Statements by persons who cannot be called as witnesses

32

Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant

33

Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated   Statements made under special circumstances

34

Entries in books of account when relevant

35

Relevancy of entry in public record, made in performance of duty

36

Relevancy of statements in maps, charts and plans

37

Relevancy of statement as to fact of public nature, contained in certain Acts or notifications

38

Relevancy of statements as to any law contained in law books

39

What evidence to be given when statement forms part of a conversation, document, book, or series of letters or papers   Judgments of courts of justice, when relevant

40

Previous judgments relevant to bar a second suit or trail

41

Relevancy of certain judgments in probate, etc. jurisdiction

42

Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41

43

Judgments, etc. other than those mentioned in Sections 40 to 42, when relevant

44

Fraud or collusion in obtaining judgment, or incompetence of Court, may be proved   Opinion of third persons, when relevant

45

Opinions of experts

46

Facts bearing upon opinions of experts

47

Opinion as to handwriting, when relevant

48

Opinion as to existence of right or custom, when relevant

49

Opinion as to usage's, tenets, etc., when relevant

50

Opinion on relationship, when relevant

51

Grounds of opinion, when relevant   Character when relevant

52

In civil cases, character to prove conduct imputed irrelevant

53

In criminal cases, previous good character relevant

54

Previous bad character not relevant, except in reply

55

Character as affecting damages    

 

 

PART II

ON PROOF

 

 

CHAPTER III

Facts which need not be proved

 

 

56

Facts judicially noticeable need not be proved

57

Facts of which Court must take judicial notice

58

Facts admitted need not be proved  

 

 

CHAPTER IV

Of oral evidence

 

 

59

Proof of facts by oral evidence

60

Oral evidence must be direct    

 

 

CHAPTER V

Of documentary evidence

 

 

61

Proof of contents of documents

62

Primary evidence

63

Secondary evidence

64

Proof of documents by primary evidence

65

Cases in which secondary evidence relating to documents may be given

66

Rules as to notice to produce

67

Proof of signature and handwriting of person alleged to have signed or written document produced

68

Proof of execution of document required by law to be attested

69

Proof where not attesting witness found

70

Admission of execution by party to attested document

71

Proof when attesting witness denies the execution

72

Proof of document not required by law to be attested

73

Comparison of signature, writing or seal with others admitted or proved   Public Documents

74

Public documents

75

Private documents

76

Certified copies of public documents

77

Proof of documents by production of certified copies

78

Proof of other official documents

79

Presumption as to genuineness of certified copies

80

Presumption as to documents produced as record of evidence

81

Presumption as to Gazetteers newspapers, private Act of Parliament and other documents

82

Presumption as to document admissible in England without proof of seal or signature

83

Presumption as to maps or plans made by authority of Government           

84

Presumption as to collections of laws and reports of decisions

85

Presumption as to powers of attorney

86

Presumption as to certified copies of foreign judicial records

87

Presumption as to books, maps and charts

88

Presumption as to telegraphic messages

89

Presumption as to due execution, etc., of document not

90

Presumption as to documents thirty years old

90A

Presumption Document custody in court

 

 

CHAPTER VI

Of the exclusion of oral by documentary evidence

 

 

91

Evidence of terms of contracts, grants and other dispositions of property reduced to form of document         

92

Exclusion of evidence of oral agreement

93

Exclusion of evidence to explain or amend ambiguous document

94

Execution of evidence against application document to existing facts

95

Evidence as to document unmeaning in reference to existing facts

96

Evidence as to application of language which can apply to one only of several persons

97

Evidence as to application language to one of two set of facts, to neither of which the whole correctly applies

98

Evidence as to meaning of illegible characters, etc.

99

Who may give evidence of agreement varying terms of document

100

Saving of provisions of Indian Succession Act relating to wills  

 

 

PART III

PRODUCTION AND EFFECT OF EVIDENCE

 

 

    CHAPTER VII

Of the burden of proof

 

 

101

Burden of proof

102

On whom burden of proof lies

103

Burden of proof as to particular fact

104

Burden of proving fact to be proved to make evidence admissible

105

Burden of proving that case of accused comes within exceptions

106

Burden of proving fact especially within knowledge

107

Burden of proving death of person know to have been alive within thirty years

   108  

Burden of proving that person is alive who has not been heard of for seven years          

109

Burden of proof as to relationship in the cases of partners, landlords and tenant, principal and agent

110

Burden of proof as to ownership

111

Proof of good faith in transaction where one party

  111A

Presumption as to certain offences

112

Birth during marriage, conclusive proof of legitimacy

113

Proof of cession of territory

113A

Presumption as to abutment of suicide by a married women

113B

Presumption as to dowry death

114

Court may presume existence of certain facts

114A

Presumption as to absence of consent in certain prosecutions for rape

 

 

CHAPTER VIII

Estoppel

 

 

115

Estoppel

116

Estoppel of tenant and of licensee of person in communications

117

Estoppel of acceptor of bill of exchange, bailee or licensee 

 

 

CHAPTER IX

Of witnesses

 

 

118

Who may testify

119

Dumb witness

120

Parties to civil suit and their wives or husband-Husband or wife of person under criminal trial

121

Judges and Magistrates

122

Communications during marriage

123

Evidence as to affairs of State

124

Official communications

125

Information as to commission of offences

126

Professional communications

127

Section 126 to apply to interpreters, etc.

128

Privilege not waived by volunteering evidence

129

Confidential communications with legal advisers

130

Production of title-deeds of witness not party

131

Production of documents which another person, having possession, could refuse to produce

132

Witness not excused from answering on ground that answer will criminate

133

Accomplice

134

Number of witnesses  

 

 

CHAPTER X

Of the examination of witnesses

 

 

135

Order of production and examination of witnesses

136

Judge to decide as to admissibility of evidence

137

Examination-in-chief

138

Order of examinations

139

Cross-examination of person called to produce a document

140

Witnesses to character

141

Leading questions

142

When they may not be asked

143

When they may be asked

144

Evidence as to matters in writing

145

Cross-examination as to previous statements in writing

146

Questions lawful in cross-examination

147

When witness to be compelled to answer

148

Court to decide when question shall be asked and when witness compelled to answer

149

Question not to be asked without reasonable grounds

150

Procedure of Court in case of question being asked without reasonable grounds

151

Indecent and scandalous questions

152

Questions intended to insult or annoy

153

Exclusion of evidence to contradict answer to questions testing veracity

154

Question by party to his own witness

155

Impeaching credit of witness

156

Questions tending to corroborate evidence of relevant fact, admissible

157

Former statements of witness may be proved to corroborate later testimony as to same fact

158

What matters may be proved in connection with proved statement relevant under section 32 or 33

159

Refreshing memory -When witness may use copy of document to refresh memory

160

Testimony to facts stated in document mentioned in Section 159

161

Right of adverse party as to writing used to refresh memory

162

Production of documents -Translation of documents

163

Giving, as evidence of document called for and produced on notice

164

Using, as evidence, of document, production of which was refused on notice

165

Judge's power to put questions or order production

   166  

Power of jury or assessors to put questions  

 

 

CHAPTER XI

Of improper admission and rejection of evidence

 

 

167

No new trail for improper admission or rejection of evidence  

 

 

 

The Schedule.

 

 

 

[Repealed].

 

 

 

 

                       

 

 

 

 

The Indian Evidence Act, 1872

-------------------------------------------------------

(Act no. 1 of 1872)

 

Preamble:- Whereas it is expedient to consolidate, define and amend the Law of Evidence; it is hereby enacted as follows:

 

PART I - RELEVANCY OF FACTS

 

 

CHAPTER I - Preliminary

 

1. Short title, extent and commencement - This Act may be called the Indian Evidence Act, 1872.

 

It extends to the whole of India except the State of Jammu and Kashmir and applies to all judicial proceedings in or before any Court, including Court-martial, other than Courts-martial convened under the Army Act (44 and 45 Vict.,c.58), [the Naval Discipline Act (29 and 30, Vict.,c.109) or the Indian Navy (Discipline) Act,1934 (34 of 1934) or the Air Force Act (7Geo.5.,C51)] but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator; and it shall come into force on the first day of September,1872.

 

2.[Repeal of enactment.] Rep. By the Repealing Act, 1938 (1 of 1938), S.2 and Sch.

 

3. Interpretation clause - In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context: -

 

"Court" - "Court" includes all Judges and Magistrates, and all person, except arbitrators, legally authorized to take evidence.

 

"Fact" - "Fact" means and includes -

 

1. anything, state of things, or relation of things, capable of being perceived by the senses;

 

2. any mental condition of which any person is conscious.

 

Illustrations

 

a. That there are certain objects arranged in a certain order in a certain place, is a fact.

b. That a man heard or saw something, is a fact.

c. That a man said certain words, is a fact.

d. That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

e. That a man has a certain reputation, is a fact.

 

"Relevant" - One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

 

"Fact in issue" - The expression "facts in issue" means and includes-any fact from which, either by itself or in connection with other fact, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows.

 

Explanation - Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to the such issue, is a fact in issue.

 

Illustrations

 

A is accused of the murder of B.

 

At his trail the following facts may be in issue:

 

that A caused B's death;

 

that A intended to cause B's death;

 

that A had had received grave and sudden provocation from B;

 

that A at the time of doing the act, which caused B's death, was by reason of unsoundness of mind, incapable of knowing its nature.

 

"Document" - "Document" means any matter expressed or described upon any substance by means of letter, figures or makes, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

 

Illustrations

 

A writing is a document;

 

Words printed, lithographed or photographed are document;

 

A map or plan is a document;

 

An inscription on a metal plate or stone is a document;

 

A caricature is a document.

 

"Evidence" - "Evidence" means and includes -

 

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence.

(2) All documents produced for the inspection of the Court; such documents are called documentary evidence.

 

"Proved" - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists.

 

"Disproved" - A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

 

"Not proved" - A fact is said not to be proved when it is neither proved nor disproved.

 

["India" means the territory of India excluding the State of Jammu and Kashmir.]

 

 

4. "May presume" - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

 

"Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

 

"Conclusive proof" - Where one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

 

 

CHAPTER II - Of the relevancy of facts

 

 

5. Evidence may be given of facts in issue and relevant facts - Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

 

Explanation - This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.

 

Illustrations

 

(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.

 

At A's trial the following facts are in issue -

 

A's beating B with the club;

 

A's causing B's death by such beating;

 

A's intention to cause B's death.

 

(b) A suitor does not bring with him and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to product the bond or prove its contents at a subsequent stage of the proceedings otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.

 

 

6. Relevancy of facts forming part of same transaction - Facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

 

Illustrations

 

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact.

 

(b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.

 

(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.

 

(d) The question is whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.

 

 

7. Facts which are occasion, cause or effect of facts in issue - Facts Which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.

 

Illustrations

 

a. The question is, whether A robbed B.

The facts that, shortly before the robbery B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant.

b. The question is, whether A murdered B.

 

Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.

 

(c) The question is, whether A poisoned B.

 

The state of B's health before the symptoms ascribed to poison and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts.

 

8. Motive preparation and previous or subsequent conduct - Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

 

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

 

Explanation 1. - The word "conduct" in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

 

Explanation 2. - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

 

Illustrations

 

a. A is tried for the murder of B.

 

The facts that, A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.

 

b. A sues B upon a bond for payment of money. B denies the making of the bond.

 

The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, it relevant.

 

c. A is tried for the murder of B by poison.

 

The fact that, before the death of B,A procured poison similar to that which was administered to B, is relevant.

 

d. The question is, whether a certain document is the will of A.

 

The facts that not long before the date of the alleged will A made inquiry into matters to which the provisions of the alleged will relate that he consulted vakils in reference to making the will, and that he caused drafts or other wills to be prepared of which he did not approve, are relevant.

e. A is accused of a crime.

 

The facts, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favorable to himself, on that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

 

f. The question is, whether A robbed B.

 

The facts that, after B was robbed, C said in A's presence - "the police are coming to look for the man who robbed B" and that immediately afterwards A ran away, are relevant.

 

g. The question is, whether A owes B rupees 10,000.

 

The fact that, A asked C to lend him money, an that D said to C in A's presence and hearing "Advice you The Orient Tavern to trust A, for he owes B 10,000 rupees" and that A went away without making any answer, are relevant facts.

 

h. The question is, whether A committed a crime.

 

The facts that, A absconded after receiving a litter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.

 

i. A is accused of a crime.

 

The facts that, after the commission of the alleged crime, he absconded or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.

 

j. The question is whether A was ravished.

 

The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made, are relevant.

 

The facts that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.

 

k. The question is whether A was robbed.

 

The fact that, soon after the alleged robbery, he made a complaint, relating to the offence, the circumstances under which, and the terms in which the complaint was made, are relevant.

 

The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.

 

 

9. Facts necessary to explain or introduce relevant facts - Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

 

Illustrations

 

a. The question is, whether a given document is the will of A.

 

The state of A's property and of his family at the date of the alleged will may be relevant facts.

 

 

(b) A sues B for a libel imputing disgraceful conduct to A;B affirms that the matter alleged to be libelous is true.

 

The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.

 

The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.

 

a. A is accused of a crime.

 

The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 8, as a conduct subsequent to and affected by facts in issue.

 

The fact that, at the time when he left home he had sudden and urgent business at the place to which he went is relevant, as tending to explain the fact that he left home suddenly.

 

The details of the business on which he left are not relevant except in so far as they are necessary to show that the business was sudden and urgent.

 

(d) A sues B for inducing C to break a contract of service made by him with A.C, on leaving A's service, says to A - "I am leaving you because B has made me better offer." The statement is a relevant fact as explanatory of C's conduct, which is relevant as a fact in issue.

 

 

 

(e) A, accused of theft is seen to give the stolen property to B, who is seen to give it to A's wife. B says as he delivers it "A says you are to hide this." B's statement is relevant as explanatory of a fact which is pat of the transaction.

 

(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.

 

 

10. Things said or done by conspirator in reference to common design - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose showing that any such persons was a party to it.

 

Reasonable grounds exists for believing that A has joined in a conspiracy to wage war against the Government of India

 

The facts that, B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D Persuaded persons to join the conspiracy in Bombay. E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

 

 

11. When Facts not otherwise relevant become relevant - Facts not otherwise relevant, are relevant.

 

1. if they are inconsistent with any fact in issue or relevant fact;

 

(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

 

Illustrations

 

a. The question is, whether A committed a crime at Calcutta on a certain day.

 

The fact that, on that day, A was at Lahore, is relevant.

 

The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.

b. The question is, whether A committed a crime.

 

The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant.

 

 

12. In suits for damages, facts tending to enable Court to determine amount are relevant - In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded, is relevant.

 

 

13. Facts relevant when right or custom is in question - Where the question is as to existence of any right or custom, the following facts are relevant:

 

(a) any transaction by which the right or custom in question was created, claimed modified, recognized, asserted or denied, or which was inconsistent with its existence;

 

a. Particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted, or departed from.

 

Illustrations

 

The question is whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father irreconcilable with the mortgage particular instances in which A's father exercised the right or in which the exercise of the right was stopped by A's neighbors, are relevant facts.

 

 

14. Facts showing existence of state of mind or of body or bodily feeling - Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.

 

Explanation 1 - A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally but in reference to the particular matter in question.

 

Explanation 2. - But where, upon the trail of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this Section, the previous conviction of such person shall also be a relevant fact.

 

Illustrations

 

(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article.

The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen.

 

(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew each and all of the articles of which he was in possession to be stolen.

 

The fact that, at the time of delivery A was possessed of a number of other pieces of counterfeit coin, is relevant.

 

The fact that, A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.

 

(c) A sues B for damage done by a god of B's which B knew to be ferocious.

 

The facts that, the dog had previously bitten X, Y and Z and that they had made complaints to B are relevant.

 

a. The question is, whether A, the acceptor of a bill of exchange, knew that the name of payee was fictitious.

 

The fact that, A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant as showing that A knew that the payee was a fictitious person.

 

b. A is accused of defaming B by publishing an imputation intended to harm the reputation of B.

 

The fact of previous publications by A respecting B, showing ill-will on the part of A towards B is relevant, as proving A's intention to harm B's reputation by the particular publication in question.

 

The facts that, there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.

 

(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss.

 

The fact that, at the time when A represented C to be solvent, C was supposed to be solvent by his neighbors and by persons dealing with him, is relevant, as showing that A made the representation in good faith.

 

(g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor.

 

A's defence is that B's contract was with C.

 

The fact that A paid C for the work in question is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C's own account, and not as agent for A.

 

(h) A is accused of the dishonest misappropriation of property which he had found, the question is whether, when he appropriated it, he believed in good faith, that the real owner could not be found.

 

The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not be found.

 

The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not good faith believe that the real owner of the property could not be found.

 

The fact that A knew, or had reason to believe, the notice was given fraudulently by C who had heard of the loss of the property and wished to set up a false claim to it, is relevant as showing that the fact that A knew of the notice did not disprove A's good faith.

 

(i) A is charged with shooting at B with intent to kill him. In order to show A's intent, the fact of A's having previously shot at B may be proved.

 

(j) A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved, as showing the intention of the letters.

 

(k) The question is, whether A has been guilty of cruelty towards B, his wife.

 

Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant facts.

 

(l) The question is, whether A's death was caused by poison.

 

Statement made by A during hiss illness as to his symptoms, are relevant facts.

 

(m) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured.

 

Statements made by A as to the state of his health at or near the time in question, are relevant facts.

 

(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured.

 

The fact that, B's attention was drawn on other occasions to the defect of that particular carriage, is relevant.

 

The fact that, B was habitually negligent about the carriage which he let to hire is relevant.

 

(o) A is tried for the murder of B by intentionally shooting him dead.

 

The fact that, A on other occasions shot a B is relevant as showing his intention to shoot B.

 

The fact that, A was in the habit of shooting at people with intent to murder them, is irrelevant.

 

(p) A is tried for a crime.

 

The fact that, he said something indicating an intention to commit that particular crime is relevant.

 

The fact that, he said something indicating a general disposition to commit crimes of that class, is irrelevant..

 

 

15. Facts bearing on question whether act was accidental or intentional - When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrence, in each of which the person doing the act was concerned, is relevant.

 

Illustrations

 

a. A is accused of burning down his house in order to obtain money for which it is insured.

 

The fact that, A lived in several houses successively each of which he insured, in each of which he insured, in each of which a fire occurred, and after each of which fires A received, payment from a different insurance office, are relevant, as tending to show that the fires were not accidental.

 

(b) A is employed to receive money from the debtors of B.

 

It is A's duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive.

 

The question is, whether his false entry was accidental or intentional.

 

The facts that, other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant.

 

(c) A is accused of fraudulently delivering to B a counterfeit rupee.

 

The question is, whether the delivery of the rupee was accidental.

 

The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C,D and E are relevant, as showing that the delivery to B was not accidental.

 

 

16. Admissions

 

 

17. Admission defined - An admission is a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

 

 

18. Admission by party to proceeding or his agent; by suitor in representative character; by party interested in subject-matter; by person from whom interest derived - Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to made them, are admissions.

 

By suitor in representative character - Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

 

Statements made by -

 

(1) by party interested in subject matter; persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested; or

 

(2) by person from whom interest derived; persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.

 

 

19. Admissions by persons whose position must be proved as against party to suit- Statements made by persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against the made if they are made whilst the person making them occupies such position or is subject of such liability.

 

Illustration

 

A undertakes to collect rent for B.

 

B sues A for not collecting rent due from C to B.

A denies that rent was due from C to B.

 

A statement by C that he owned B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.

 

 

20. Admission by persons expressly referred to by party to suit - Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.

 

Illustration

 

The question is, whether a horse sold by A to B is sound A says to B "Go and ask CC knows all about it" C's statement is an admission.

 

 

21. Proof of admission against persons making them, and by or on their behalf - Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they con not be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases.

 

(1) An admission ma be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead it would be relevant as between third person under section 32.

 

(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

 

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

 

Illustrations

 

(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged.

 

A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine nor con B Prove a statement by himself that the deed is gorged.

 

(b) A, the captain of a ship, is tried for casting her away.

 

Evidence is given to show that the ship was taken out of her proper course.

 

A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statement, because they would be admissible between third parties, if he were dead under Section 32, Clause (2).

 

(c) A is accused of a crime committed by him at Calcutta.

 

He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day.

 

The statement in the date of the letter is admissible, because if A were dead it would be admissible under Section 32, Clause (2).

 

(d) A is accused of receiving stolen goods knowing them to be stolen.

 

He officers to prove that he refused to sell them below their value.

 

A may prove these statements though they are admissions, because they are explanatory of conduct influenced by facts in issue.

 

(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit.

 

He offers to prove that he asked a skilful person to examine the coins as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine.

 

A may prove these facts for the reasons stated in the last proceeding illustration.

 

 

22. When oral admission as to contents of documents are relevant - Oral admissions as to the contents of a document are not relevant unless and until the party proposing them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

 

 

23. Admission in Civil cases, when relevant - In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given

 

Explanation - Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under Section 126.

 


24. Confession by inducement, threat or promise when irrelevant in criminal proceeding - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.

 

 

25. Confession to police officer not to be proved - No confession made to police officer shall be proved as against a person accused of any offence.

 

 

26. Confession by accused while in custody of police not to be proved against him - No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

 

Explanation - In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure,1898 (V of 1898).

 

 

27. How much of information received from accused may be proved - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

 

 

28. Confession made after removal of impression caused by inducement, threat or promise, relevant - If such a confession as is referred to in Section 24 is made after the impression caused by any inducement, threat or promise has, in the opinion of the Court been fully removed it is relevant.

 

 

29. Confession otherwise relevant not to become irrelevant because of promise of secretary etc. - If such a confession is otherwise relevant, it does not become it was made under a promise of secrecy. or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to question which he need not have answered, whatever may have been the form of those question, or because he was not warned that he was bound to make such confession, and that the evidence of it might be given against him.

 


30. Consideration of proved confession affecting person making it and others jointly under trail for same offence - When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

 

Explanation - "Offence" as used in this Section, includes the abutment of, r attempt to commit, the offence.

 

Illustrations

 

(a) A and B are jointly tried for the murder of C. It is proved that A said - "B and I murdered C". the court may consider the effect of this confession as against B.

 

(b) A is on his trail for the murder of C. There is evidence to show that C was murdered by A and B, and that B said, "A and I murdered C". The statement may not be taken into consideration by the Court against A as B is not being jointly tried.

 

 

31. Admissions not conclusive proof but may estop - Admissions are not conclusive proof of the matters admitted, but they may operate as estopples under the provisions hereinafter contained.

 

Statements by persons who cannot be called as witness

 

 

32. Case in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases -

 

(1) When it relates to cause of death - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

 

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

 

(2) Or is made in course of business - When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods securities or property of any kind; or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him.

(3) Or against interest of maker - When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true it would expose him or would have exposed him to criminal prosecution or to a suit for damages.

 

(4) Or gives opinion as to public right or custom, or matters of general interest - When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest of the existence of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

 

(5) Or relates to existence of relationship - When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

 

(6) Or is made in will or deed relating to family affairs - When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

 

(7) Or in document relating to transaction mentioned in section 13, Clause (a). - When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).

 

(8) Or is made by several persons and express feelings relevant to matter in question - When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

 

Illustrations

 

(a) The question is, whether A was murdered by B; or

 

A dies of injuries received in a transaction in the course of which she was ravished.

 

The question is, whether she was ravished by B; or

 

The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow.

 

Statement made by A as to the cause of his or her death referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.

 

a. The question is, as to the date of A's birth.

 

An entry in the dairy of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A's mother and delivered her of a son, is a relevant fact.

 

b. The question is, whether A was in Calcutta on a given day.

 

A statement in the diary of a deceased solicitor, regularly kept in the course of business that, on a given day the solicitor attended A at a place mentioned in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.

 

c. The question is, whether a ship sailed from Bombay harbour on a given day.

 

A letter written by a deceased member of a merchant's firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.

 

d. The question is whether rent was paid to A for certain land.

 

A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders, is a relevant fact.

 

e. The question is, whether A and B were legally married.

 

The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.

 

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant.

 

(h) The question is, what was the cause of the wreck of a ship.

 

A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

 

(i) The Question is, whether a given road is a public way.

 

A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

 

(j) The question is, what was the price of grain on a certain day in particular market. A statement of the price, made by a deceased banya, in the ordinary course of his business, is a relevant fact.

 

(k) The question is, whether A, who is dead, was the father of B.

 

Statement by A that B was his won, is a relevant fact.

 

(l) The question is, what was the date of the birth of A.

 

A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

 

(m) The question is, whether and when, A and B were married.

 

An entry in a memorandum book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact.

 

(n) A sues B for a libel expressed in a painted caricature exposed in a ship window.

 

The question is, as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved.

 

 

33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated - Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a letter stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept our of the way by the adverse party or if his presence cannot be obtained without, an amount of delay of expense which, under the circumstances of the case, the Court considers unreasonable;

 

Provided -

 

That the proceeding was between the same parties or their representatives in interest;

 

That the adverse party in the first proceeding had the right and opportunity to cross-examine;

 

That the questions in issue were substantially the same in the first as in the second proceeding.

 

Explanation - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

 

Statements made under special circumstances

 

34. Entries in books of account when relevant - Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

 

Illustration

 

A sues B for Rs. 1,000/- and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant but are not sufficient, without other evidence, to prove the debt.

 

35. Relevancy of entry in public record, made in performance of duty - An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.

 

 

36. Relevancy of statements in maps, charts and plans - Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Central Government or any State Government, as to matters usually represented or stated in such maps, charts, or plans are themselves facts.

 

 

37. Relevancy of statements as to fact of public nature contained in certain Acts or notifications - When the court has to form an opinion as to the existence of any facts of a public nature, any statement of it made in recital contained in any Act of Parliament of the United Kingdom or in any Central Act, Provincial Act or a State Act or in a Government notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any dominion, colony or possession of His Majesty, is a relevant fact.

 

 

38. Relevancy of statements as to any law contained in law books - When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant.

 

 

39. What evidence to be given when statement forms part of a conversation, documents, books or series of letters or papers - When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an is connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, books or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.

 

 

Judgments of courts of justice, when relevant

 

 

40. Previous judgments relevant to bar a second suit or trail - The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is, whether such Court ought to take cognizance of such suit or to hold such trail.

 

41. Relevancy of certain judgments in probate etc., jurisdiction - A final judgment, order or decree of a Competent Court, in exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or to take away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing not as against any specified person but absolutely, is relevant when the existence of any legal character, or the title of any such person to any such thing, is relevant.

 

Such judgment, order or decree is conclusive proof -

 

That any legal character which it confer accrued at the time when such judgment, order or decree come into operation;

 

That any legal character to which it declares and such person to be entitled, accrued to that person at the time when such judgment, ord3er or decree declares it to have accrued to that person;

 

That any legal character to which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had cased or should cease.

 

And that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

 

42. Relevancy and effect of judgment, order or decrees, other than those mentioned in Section 41. - Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the inquiry; nut such judgments, orders or decrees are not conclusive proof of that which they state.

 

Illustrations

 

A sues B for trespass on his land, B alleges the existence of a public right of way over the land, which A denies.

 

The existence of a decree in favour of the defendant, in a suit by A against C or a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of ways exists.

 

 

43. Judgment etc., other than those mentioned in Section 40 to 42 when relevant - Judgments, orders or decrees other then those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant, under some other provision of this Act.

 

Illustrations

 

 

(a) A and B separately sue C for a libel which reflects upon each of them C in each case says that the matter alleged to libelous is true and the circumstances are such that it is probable true in each case, or in neither.

 

A obtains a decree against C for damages on the ground that C filed The Orient Tavern make out his justification. The fact is irrelevant as between B and C.

 

a. A prosecutes B for adultery with C, A's wife. B denies that C is A's wife, but the court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. CC says that she never was A's wife.

 

The judgment against B is irrelevant as against C.

 

 

(c) A prosecuted B for stealing a cow, from him, B is convicted.

 

A, afterwards, sues C for cow. Which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.

 

(d) A has obtained a decree for the possession of land against A,C,B's son murders A in consequence.

 

The existence of the judgment is relevant, as showing motive for a crime.

 

(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

 

(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under Section 8 as showing the motive for the fact in issue.

 

 

44. Fraud or collusion in obtaining judgment, or incompetence of Court may be proved - Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40,41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

 

Opinions of third persons when relevant

 

 

45. Opinions of experts - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts.

 

Illustrations

 

(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.

 

(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.

 

 

The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.

 

(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.

 

The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant.

 

 

46. Facts bearing upon opinions of experts - Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts when such opinions are relevant.

 

Illustrations

 

(a) The question is, whether A was poisoned by a certain poison.

 

The fact that other persons who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.

 

(b) The question is, whether an obstruction to a harbour is caused by a certain seawall.

 

The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time is relevant.

 

 

47. Opinions as to handwriting, when relevant - When the Court has to form an opinion as to the person by whom document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

 

Explanation - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received document purporting to be written by that person in answer to documents written by himself to under his authority and addressed to that person, or when in the ordinary course of business document purporting to be written by that person have been habitually submitted to him.

Illustrations

 

The question is whether a given letter is in the handwriting of A, a merchant in London.

 

B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. G is B's clerk, whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted thee letters purporting to be written by A for the purpose advising with him thereon.

 

The opinions of B,C and D on the question, whether the letter is in the handwriting of A, are relevant though neither B, C or D ever saw A, write.

 

 

48. Opinion as to existence of right or custom when relevant - When the Court has to form an opinion as to existence of any general custom or right, the opinions as to the existence of such custom or rights, of persons who would be likely to know of its existence if it existed, are relevant.

 

Explanation - The expression "general custom or right" includes customs or right common The Orient Tavern any considerable class of persons.

 

Illustrations

 

The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.

 

 

49. Opinion as to usage's, tenants, etc., when relevant - When the Court has to form an opinion as to -

 

the usage's and tenants of any body of men or family,

 

the constitution and government of any religious or charitable foundation, or

 

the meaning of words or terms used in particular districts or by particular classes of people,

 

the opinions of persons having special means of knowledge thereon, are relevant facts.

 

 

50. Opinion on relationship, when relevant - When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject is a relevant fact.

 

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (IV of 1869), or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (XIV of 1860).

 

Illustrations

 

(a) The question is whether A an B were married.

 

The Fact that they were usually received and treated by their friends as husband and wife, is relevant.

 

(b) The question is whether A was the legitimate son of B.

 

The fact that A was always treated as such by members of the family, is relevant.

 

 

51. Grounds of opinion when relevant - Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

 

Illustration

 

An expert may give an account of experiments performed by him for the purpose of forming his opinion.

 

Character when relevant

 

 

52. In civil cases character to prove conduct imputed irrelevant - 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.

 

 

53. In criminal cases, previous good character relevant - In criminal proceedings the fact that the person accused is of good character, is relevant.

 

 

54. Previous bad character not relevant except in reply - 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.

 

Explanation 1. - This section does not apply to cases in which the bad character of any person is itself a fact in issue.

 

Explanation 2. - A previous conviction is relevant as evidence of bad character.

 

55. Character as affecting damages - 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.

 

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.

 

 

PART II - ON PROOF

 

 

CHAPTER III - Facts which need not be proved

 

 

56. Fact judicially noticeable need not be proved - No fact of which the Court will take judicial notice need be proved.

 

 

57. Facts of which Court must take judicial notice - The Court shall take judicial notice of the following facts;

 

1. All laws in force in the territory of India;

 

2.All public Acts passed or hereafter to be passed by Parliament of United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;

 

3.Articles of War for the Indian Army, Navy of Air force;

 

4.The course of proceeding of parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the Legislature established under any law for the time being in force in Province or in the States;

 

5.The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;

 

6.All seals of which English Courts take judicial notice; the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown representative; the seals off Court of Admiralty and Maritime jurisdiction and of Notaries Public and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India;

 

7.The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any state, if the fact of their appointment to such office is notified in any official Gazette;

 

8.The existence, title and national flag of every State or Sovereign recognized by the Government of India;

 

9.The divisions of time, the geographical divisions of the world, and public festivals, facts and holidays notified in the Official Gazette;

 

10.The territories under the dominion of the Government of India;

 

11.The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons;

 

12.The names of the members and officers of the Court, and of their deputies and subordinate officers and assistants and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;

 

13.The rule of the road on lad or at sea.

 

In all these cases, and also on all matters of public history, literature, science or art, the Court may report for its aid to appropriate books or documents of reference.

 

If the Court is called upon by any person to take judicial notice of any fact it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

 

 

58. Facts admitted need not be proved - No fact need be proved in any proceeding, which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings;

 

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.

 

 

CHAPTER IV Of oral evidence

 

 

59. Proof of facts by oral evidence - All facts, except the contents of documents, may be proved by oral evidence.

 

 

60. Oral evidence must be direct - Oral evidence must, in all cases, whatever, be direct; that is to say;

 

If it refers to a fact which could be seen, it must be the evidence of a witness who says he heard it;

 

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

 

If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

 

If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds -

 

Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.

 

Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

 

 

CHAPTER V - Of documentary evidence

 

 

61. Proof of contents of documents - The contents of documents may be proved either by primary or by secondary evidence.

 

 

62. Primary evidence - Primary evidence means the document itself produced for the inspection of the Court.

 

Explanation 1. - Where a document is executed in several parts, each part is primary evidence of the document.

 

Where a document is executed in counterparts, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

 

Explanation 2. - Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

 

 

 

Illustration

 

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

 

 

63. Secondary Evidence - 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.

 

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.

 

 

64. Proof of documents by primary evidence - Documents must be proved by primary evidence except in the cases hereinafter mentioned.

 

 

65. Cases in which secondary evidence relating to documents may be given - 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, 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 within the meaning of Section 74;

 

(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 may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

 

66.

 

 

67. Proof of signature and handwriting of person alleged to have signed or written document produced - If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his hand writing.

 

 

68. Proof of execution of document required by law to be attested - If a document is required by law to be attested it shall not be sued as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to he process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied.

 

 

69. Proof where no attesting witness found - If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.

 

 

70. Admission of execution by party to attested document - The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

 

 

71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document its execution may be proved by other evidence.

 

 

72. Proof of document not required by law to be attested - An attested document not required by law to be attested may b proved as if it was unattested.

 

 

73. Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which s to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

 

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

 

This section applies also with any necessary modifications, to finger-impressions.

 

Public Documents

 

74. Public documents - The following documents are Public documents-

 

1. Documents forming the acts, or records of the acts

 

a. Of the sovereign authority,

 

i. Of Official bodies and the Tribunals, and

 

(iii) Of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country.

 

1. Public records kept in any State of private documents.

 

1.Private documents - All other documents are private.

 

 

76. Certified copies of Public Documents - 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 therefor 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 or parts of the public documents of which they purport to be copies.

 

 

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

 

 

78. Proof of other official documents - The following public documents may be proved as follows -

 

1. Acts, orders or notifications of the General Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government.

 

By the records of the departments, certified by the heads of those departments respectively, or

 

By any document purporting to be printed by order of any such Government or as the case may be, of the Crown Representative;

 

(2) The proceedings of the Legislatures -

 

by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting The Orient Tavern be printed by order of the Government concerned;

 

(3) Proclamations, orders or regulations issued by Her Majesty or by the privy Council, or by any department of Her Majesty's Government,

By copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer;

 

(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country -

 

By journals published by their authority, or commonly received in that country as such, or by a copy certified 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.

 

Presumptions as to Document

 

79. Presumption as to genuineness of certified copies - The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized there to by the Central Government:

 

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

 

The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper.

 

 

80. Presumption as to documents produced as records of evidence - Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be statement or confession by any prisoner or accused person taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume –

 


81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents - The Court shall presume the genuineness of every document purporting to be the London Gazette, or any official Gazette or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of private Act of Parliament of the United Kingdom printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

 

 

82. Presumption as to document admissible in England without proof of seal or signature - When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine and that the person signing it held at the time when he signed it, the judicial or official character which he claims; and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.

 

 

83. Presumption as to Maps or Plans made by authority of Government - The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate, but maps or plans made for the purposes of any cause must be proved to be accurate.

 

 

84. Presumption as to collections of laws and reports of decisions - The Court shall presume the genuineness of every book purporting to be printed and published under the authority of the Government of any country, and to contain any of the laws of that country; and of every book purporting to contain reports of decisions of the Courts of such country.

 

 

85. Presumption as to powers of attorney - The Court shall presume that every document purporting to be a Power of Attorney, and to have been executed before, authenticated by, notary public, or any Court, judge, Magistrate, Indian Consul, or Vice Consul, or representative of the Central Government, was so executed and authenticated.

 

 

86. Presumption as to certified copies of foreign judicial records - The Court may presume that any document purporting to be certified copy of any judicial record of any country not forming part of India or of Her Majesty's dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records

 

An officer who, with respect to any territory or place not forming part of India or Her Majesty's dominions, is a Political Agent, therefor, as defined in Section 3, Clause (43) of the General Clauses Act, 1897 (10 of 1897) shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.

 

 

87. Presumption as to Books, Maps and Charts - The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts, and which is produced for its inspection, was written and published by the person, and at the time and place, by whom or at which it purports to have been written or published.

 

 

88. Presumption as to Telegraphic Messages - The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the massage purports to be sent, but the Court shall not make any presumption as to the person by whom such massage was delivered for transmission.

 

 

89. Presumption as to due execution etc., of documents not produced - The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.

 

 

90. Presumption as to documents thirty years old - Where any document, purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the hand writing of any particular person, is in that person's hand writing, and in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

 

Explanation - Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin or if the circumstances of the particular case are such as to render such an origin probable.

 

This explanation applies also to Section 81.

 

Illustrations

 

(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.

 

(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody id proper.

 

(c) A, connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper.

 

STATE AMENDMENT U.P.

 

The following amendments have been made by the U.P. Civil Laws Amendment Act, 1954 and the same are applicable to U.P. only -

 

1. The existing section shall be re-numbered as Section 90(1) and

 

a. For the words "thirty years" the words "twenty years" shall be substituted, and

 

b. The following shall be inserted there after as a new sub-section (2);

 

(2) "Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy there of is produced, the Court may presume that the signature and every to her part of such document which purports to be in the hand writing of any particular person, is in that person's hand writing, and in the case of a document executed or attested, that it was duly executed and by the person by whom it purports to have been executed or attested"

 

U.P.

 

1. After Section 90, add the following as new Section 90-A.

 

 

90-A (1) Where any registered document or a duly certified copy of a document which is the part of the record of a Court of Justice, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the original was executed by the person by whom it purports to have been executed.

 

(2) The presumption shall not be made in respect of any document, which is the basis of a suit or of a defense or is relied upon in the plaint or written statement.

 

 

The explanation to sub-section (1) of Section 90 will also apply to this Section.

 

 


CHAPTER VI - Of the exclusion of oral by documentary evidence 

 

 

91. Evidence of terms of contracts, grant and other dispositions of property reduced to form of document - 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 such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.

 

 

Exception 1 - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person had acted as such officer, the writing by which he is appointed need not be proved.

 

Exception 2 - Wills admitted to probate in India may be proved by the probate.

 

 

Explanation 1 - This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.

 

Explanation 2 - Where there are more originals than one, one original only need be proved.

 

Explanation 3 - 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.

 

Illustrations

 

a. If a contract be contained in several letter, all the letters in which it is contained must be proved.

 

b. If a contract is contained I a bill of exchange, the bill of exchange must be proved.

 

c. If a bill of exchange is drawn in a set of three, one only need be proved.

 

d. A contracts, in writing with B, for the delivery of indigo upon certain terms. The contract mentioned the fact that B had paid A, the price of other in contracted for verbally on another occasion.

 

Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.

 

e. A gives B a receipt for money paid by B.

 

Oral evidence is offered of the payment.

 

The evidence is admissible.

 

 

92. Exclusion of evidence or oral agreement - 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 term:

 

Proviso (1) - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want for due execution, want of capacity in any contracting party, want or failure of consideration, or a mistake in fact or law.

 

Proviso (2) - The existence of any separate oral agreements to matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether; r not his proviso applies, the Court shall have regard to the degree of formality of the document.

 

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.

 

Proviso (4) - 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, except in cases in which such contract, grant or disposition of property, is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

 

Proviso (5) - Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved.

 

Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.

 

Proviso (6) - Any fact may be proved which shows in what manner the language of a document is related to existing facts.

 

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 the 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 31st March, cannot be proved.