Vol. 12 · pages 641–645

620 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (3) Tolls. (4) Boundaries. (5) Rights of Ferry. (6) Sea Walls etc. (III) Exception Sec. 43 . Under this section Judgments in personam are admissible as between strangers under two circumstances (i) Where the existence of such judgment is a fact in issue. (ii) Where the Judgment is relevant under some other provision of the Evidence Act. Comment: 1. The first circumstance is easy to conceive. Illus. (1) A sued B for slander in saying that he had been convicted of forgery. B justified it upon the ground that it was true. The conviction of A forgery would be a fact in issue and a judgment supporting his conviction would be admissible also. B was not a party to that judgment. (2) A Judgment against a surety obtained by the creditor will be admissible in a suit by the surety against the principal debtor although the principal debtor was not a party to it. (3) Upon a trial for intentionally giving false Evidence in a Judicial proceedings the record will be evidence that there was a Judicial proceedings. 2. It is the second circumstance which has created difficulty. What are the sections under which a judgment is likely to be relevant ? Under sec. 7—Show cause, occasion. Under sec. 8—Motive conduct. Under sec. 9—Facts necessary to explain relevant facts. Under sec. 11—Facts inconsistent. Under sec. 13—Transaction.

621LAW OF EVIDENCE 3. Two Questions. I. Is a Judgment a fact. II. Is a Judgment a transaction. 6. Cal. 171 F.B. 4. Comment on 6 Cal. 171. that it is a fact. p. 181. Fact: (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. II Documentary Evidence. 1. The subject to be dealt with is the proof of the statements made in a document i.e. proof of the contents of a document. Oral Evidence deals with the proof of the statements made verbally by a party. 2. What are the requirements of the Rule of Best Evidence with regard to the proof of the contents of a Document? There are two requirements— (i) In certain cases the Evidence must be documentary and not oral. (ii) In those cases where the Evidence must be documentary that evidence must be primary. § Cases where Evidence must be documentary 1. Many matters are reduced to writing. But because they are reduced to writing, the Law does not require that every such case they shall be proved only by the production of the document. Some may be proved by oral Evidence and others must be proved by documentary Evidence. 2. For this purpose it is necessary to note that the Indian Evidence Act makes two distinctions— (1) between documents which are dispositive in character and documents which are non-dispositive in character and (2) between transactions which are required by law to be in writing and those which are not.

622 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 3. Dispositive and non-dispositive. Dispositive means transactions in which parties dispose of their rights, such as a Contract, grant etc., Non-dispositive means transactions in which no disposition of rights is involved. 4. The rule embodied in the Evidence Act is twofold : (i) When a dolcument is a dispositive document and when the matter is such that the law requires it to be reduced to writing no evidence shall be given in proof of the matter except the document. In other words oral Evidence in such cases cannot be substituted for documentary Evidence. But if the document is of a non-dispositive character or if it is one which is not required by law to be reduced to writing then although the transaction may have been reduced to writing yet oral evidence may be given in proof of the transaction. (ii) If the transaction is a dispositive transaction or is one which is required by law to be in writing then not only oral Evidence cannot be substituted for the documentary Evidence but oral evidence cannot be admitted to contradict, modify or vary the terms of the document 5. This rule is contained in Sections 91-92. § Exceptions to the Rule contained in Sees. 91-92. 1. There are exceptions to this rule. They fall into classes. They must be kept separate. One class deals with cases where the question is whether oral evidence may be substituted for documentary Evidence. The second deals with cases where the question is whether oral evidence may be admitted not to substitute but to modify documentary evidence where the rule requires that the Evidence shall be documentary. § Exceptions which permit substitution of oral Evidence for documentary Evidence. 1. They are contained in Section 91 and cover the following cases : (i) Appointment of a Public Officer. (ii) Will may be proved by the probate.

623LAW OF EVIDENCE § Exceptions which permit oral Evidence to be given to modify the terms of the document. 1. They are contained in Sec. 92 and cover the following cases. 2. The first thing to note is that such evidence can always be given by persons who were not parties to the document or who are not representatives in interest of the parties to the document. 3. The cases in which parties to the document or their representatives in interest can give oral Evidence are as follows:— (i) Fact which would invalidate a document e.g. fraud, want of capacity. (ii) Fact on which document is silent and which is not inconsistent with its terms. (iii) Condition precedent. (iv) Subsequent oral agreement. (v) Usage or custom by which incidents are attached to contracts. (Bakers dozen). Provided it is not inconsistent. (vi) Fact showing how the language is related to existing facts. § Cases where oral Evidence may be admitted to Explain documentary Evidence. There are two propositions of law which arise out of the first rule of Best Evidence relating to Documentary Evidence. 1. Where the transaction embodied in a document is of a non-dispositive character or is one not required by law to be in writing the fact of the transaction may be proved by oral Evidence. 2. Where it is dispositive or required by Law to be in writing then oral evidence not only given to prove the transaction but it cannot be given to contradict, modify or amend the terms of the transaction as embodied in the document. 3. One question however ramains. Can oral Evidence be given to explain documentary Evidence ? This is a distinct question and must be, separated from the question whether evidence can be given to modify contract etc. the terms of the documentary evidence.

624 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 4. This question is dealt with in Sections 93-100. 5. In dealing with documentary Evidence disputes may arise on three counts: (i) Disputes regarding applicability or non-applicability of die language of the document to existing facts (ii) Disputes regarding the meaning of the documents where the language used is ambiguous or defective. (iii) Disputes regarding the meaning of the words used in the document. 1. Under 1 there are three possible cases of disputes. (1) Where language applies accurately to facts and the contention is that it was not meant to apply—Evidence may not be given in support of the contention to show that it was not meant to apply to the existing facts to winch they do apply—Sec. 94 (2) Where language applies to one of the existing facts but not to all of them—and the contention is that it applies to one specified fact—Evidence may be given in support of the contention to show to which particular fact it was intended to apply.—Sec. 95. (3) Where language applies partly to one set of facts and partly to another set of facts and whole does not apply correctly to either and the contention is that it applies to one set and not to the other—Evidence may be given in support of the contention to show to which of the two it was meant to apply—Sec. 97. 1. Under the second Head of Disputes there are two possible cases : (i) Where language is ambiguous or defective and the contention is that the parties meant a particular thing— Evidence may not be given in support of the contention to show its meaning or to supply its defects—Sec. 93. (ii) Where the language is plain in itself but is unmeaning in reference to existing facts and the contention is that it was meant to indicate a particular thing— Evidence may be given in support of the contention to show what was meant—Sec 95.