Sections 91-92 IEA vs Sections 94-95 BSA — Exclusion of Oral by Documentary Evidence

In India, Sections 94 and 95 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Sections 91 and 92 of the Indian Evidence Act, 1872 (IEA) on 1 July 2024. Section 94 repeats Section 91 word for word. Section 95 keeps the bar on oral agreements between parties and its six exceptions, redrafted as unnumbered provisos with updated illustrations.

At a glance

These are rules of evidence, so no First Schedule classification applies. The Chapter heading changes from "Of the Exclusion of Oral by Documentary Evidence" to "Of the Exclusion of Oral Evidence by Documentary Evidence".

What changed

• Identical — Section 94 (IEA 91): the main rule, Exception 1 (a public officer shown to have acted as such need not have his written appointment proved), Exception 2 ("Wills admitted to probate in India may be proved by the probate"), Explanations 1 to 3 and Illustrations (a) to (e) are the same words.
• Minor edit — Section 95, main rule (IEA 92): "have been proved according to the last section" becomes "have been proved according to section 94".
• Minor edit — Section 95, provisos: "Proviso (1)" to "Proviso (6)" become "Provided that", "Provided further that" and a run of "Provided also that" clauses. Their words are unchanged.
• Minor edit — the usage proviso: in the IEA, proviso (5) (usage or custom) carried its own inner qualification, "Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract." In Section 95 that qualification is printed as a separate "Provided also that" clause. Because it still speaks of "such incident", on a reading of the text it continues to qualify the usage proviso that precedes it.
• Minor edit — illustrations to Section 95: (a) "in ships from Calcutta to London" becomes "in ships from Kolkata to Visakhapatnam"; (b) "Rs. 1,000 on the first March 1873" and "the thirty-first March" become "one thousand rupees on the 1st March, 2023" and "the 31st March, 2023"; (c) "Rampore" becomes "Rampur"; (g) "Bought of A a horse of Rs. 500" becomes "Bought of A a horse for thirty thousand rupees"; (h) "Rooms, Rs. 200 a month" becomes "Rooms, ten thousand rupees a month", "drawn up by an attorney" becomes "drawn up by an advocate", and the second "lodgings" reads "lodging"; (j) the comma in "left with B, who sues A" is dropped.

Statutory text (relevant extract)

Extract, Section 95 BSA, main rule and first two provisos (Section 92 IEA read the same, except "according to the last section" and the "Proviso (1)" / "Proviso (2)" labels):

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 section 94, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

Provided that 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 of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law:

Provided further that the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:

How it works — two steps

Step 1 — prove the terms by the document (Section 94). The rule applies in two situations: where the parties have chosen to reduce the terms of a contract, grant or other disposition of property to a document, and "in all cases in which any matter is required by law to be reduced to the form of a document". In either case "no evidence shall be given in proof of the terms" except the document itself, or secondary evidence "in cases in which secondary evidence is admissible under the provisions hereinbefore contained" — in the BSA, the primary and secondary evidence provisions in Sections 57 to 60.

• Explanations 1 and 2: the rule applies whether the terms are in one document or several (Illustration (a): all the letters containing a contract must be proved), and where there are several originals one need be proved (Illustration (c): a bill of exchange drawn in a set of three).
• Explanation 3: a document's statement of some other fact does not exclude oral evidence of that fact. Illustration (d): a written indigo contract mentioning an earlier oral indigo deal does not stop oral evidence that the earlier price was never paid; Illustration (e): a receipt does not stop oral evidence of the payment.

Step 2 — no oral variation between the parties (Section 95). Once the terms are proved under Section 94, the bar operates only "as between the parties to any such instrument or their representatives in interest", and only against evidence offered to contradict, vary, add to or subtract from the terms. Illustration (b): an unconditional written promise to pay on 1 March cannot be varied by an oral agreement made at the same time postponing payment to 31 March.

The six exceptions (the provisos to Section 95, in order):

1. Invalidating facts — fraud, intimidation, illegality, want of due execution, want of capacity, want or failure of consideration, or mistake in fact or law. Illustration (d): misrepresentation about the value of mines may be proved.
2. A separate oral agreement on a matter the document is silent on, not inconsistent with its terms — with regard to "the degree of formality of the document". Illustration (h) shows both sides: an informal card reading "Rooms, ten thousand rupees a month" allows proof that board was included; a formal stamped agreement drawn up by an advocate that is silent on board does not.
3. An oral condition precedent to any obligation attaching.
4. A distinct subsequent oral agreement to rescind or modify — except where the contract is required by law to be in writing, or has been registered under the registration law.
5. Usage or custom annexing incidents not expressly mentioned, provided the incident is not repugnant to or inconsistent with the express terms.
6. Facts showing how the language relates to existing facts. Illustration (c) marks the limit: land outside the map attached to a sale deed of "the Rampur tea estate" cannot be shown to have been meant to pass.

What this means in practice

For a party relying on the written instrument

• Produce the original, or lay the foundation for secondary evidence under Sections 58 to 60 BSA; Section 94 excludes every other mode of proving the terms.
• Where the other side leads oral evidence of a side agreement, object under Section 95 and require it to be brought within a named proviso. Mangala Waman Karandikar (below) holds that proviso (6) does not open a straightforward document to extrinsic evidence.

For a party seeking to go behind the document

• Plead the specific proviso relied on — fraud, mistake, want of consideration, a collateral matter on which the document is silent, a condition precedent, a later rescission or modification, a usage, or the application of the language to facts.
• Check the fourth proviso's limits before pleading a later oral modification: it is unavailable where the law requires writing or the document is registered.
• For a plea that the document was never meant to be acted on, see Roop Kumar (below).

For a non-party (creditor, purchaser, Official Assignee)

• Section 95 does not bind a stranger to the document, and Section 102 BSA expressly allows a non-party to prove a contemporaneous agreement varying its terms. Bai Hira Devi (below) applied Section 92 IEA this way, and held that both the stranger and the party facing him may lead such evidence.

For advocates drafting pleadings

• The proviso numbers no longer appear in the BSA text, so identify each proviso by its words or its order ("the fourth proviso to Section 95").

Judgments that still matter

Bai Hira Devi and Others v. Official Assignee of Bombay, [1958] 1 S.C.R. 1384 (1958 INSC 13) — 20 February 1958. A Bench of Bhagwati, J. L. Kapur and Gajendragadkar JJ. (judgment by Gajendragadkar J.) considered whether donees under a gift deed, challenged by the Official Assignee of the insolvent donor, could lead oral evidence that the transaction was in fact for valuable consideration. The Court explained that Section 91 applies to all documents, bilateral or unilateral, while Section 92 applies to dispositive, bilateral documents, and that "Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents." It held that the Official Assignee, in proceedings under Section 55 of the Presidency-towns Insolvency Act, was not the insolvent's representative in interest, so Section 92 was "wholly inapplicable"; it set aside the High Court's decree and sent the appeal back for disposal on the merits. The report does not show paragraph numbers. Section 95 BSA repeats the "as between the parties … or their representatives in interest" limitation.

Roop Kumar v. Mohan Thedani, [2003] 3 S.C.R. 292 (2003 INSC 206) — 2 April 2003. Shivaraj V. Patil and Arijit Pasayat JJ. described Section 91 as the "best evidence rule" and held that Sections 91 and 92 apply only when the document on its face contains, or appears to contain, all the terms of the contract. The Court added: "Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91." Because Section 91 carries no words limiting it to the parties, a third party seeking to establish such a contract can prove it only by the writing. The Court recorded earlier rulings that a party may show that a deed was a sham never intended to be acted upon, but held on the evidence that the appellant had acted on the agency-cum-licence agreement, and dismissed the appeal with costs of Rs. 25,000. The report does not show paragraph numbers.

Mangala Waman Karandikar (D) Thr. Lrs. v. Prakash Damodar Ranade, [2021] 5 S.C.R. 232 (2021 INSC 288) — 7 May 2021. A Bench of N. V. Ramana CJI, Surya Kant and Aniruddha Bose JJ. (judgment by the Chief Justice) reversed a High Court that had read a business-transfer agreement as a leave and licence by relying on extrinsic evidence under Section 95 IEA. The Court held that resort to the proviso is available only where the document leaves the question in doubt, and "Section 95 only builds on the proviso 6 of Section 92" (para 14). "It could not be postulated that the legislature intended to nullify the object of Section 92 by enacting exceptions to that section" (para 15). The High Court's order was set aside and the trial court's decree restored (para 19).

West Bengal State Electricity Distribution Co. Ltd. v. Adhunik Power & Natural Resource Ltd. & Ors., 2026 INSC 202 — 27 February 2026. Joymalya Bagchi J., for a three-Judge Bench, read a power purchase agreement's reference to a "captive source" of coal in the light of minutes of meeting and correspondence. At para 22 the Court stated that "Ordinarily, when a contract is reduced to writing, its terms must be determined from the document itself", but that this does not bar facts that link the terms to existing facts or give meaning to an otherwise unworkable term. Its footnotes identify Sections 94, 95 and 98 BSA as the counterparts of Sections 91, 92 and 95 IEA. The appeals were partly allowed: the tribunal's order was set aside only to the extent it granted compensation for coal bought to meet the tapering-linkage shortfall (para 26).

Sections 94 and 95 BSA repeat the operative words of Sections 91 and 92, so on a reading of the text these judgments remain relevant.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement". The BSA commenced on 1 July 2024 (S.O. 849(E), 23 February 2024). On a reading of that provision, a suit pending on that date continues under Sections 91 and 92 IEA; one instituted afterwards is governed by Sections 94 and 95 BSA even if the contract is older. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BSA equivalent of Sections 91 and 92 of the Evidence Act? Section 94 of the Bharatiya Sakshya Adhiniyam, 2023 replaces Section 91 of the Indian Evidence Act, 1872, and Section 95 BSA replaces Section 92. Section 94 is word for word the same as Section 91. Section 95 keeps the same rule and the same six exceptions, now drafted as unnumbered provisos, with updated illustrations.

Can oral evidence be given to change the terms of a written contract under the BSA? Not as between the parties to the document or their representatives in interest. Once the terms are proved under Section 94, Section 95 BSA bars evidence of any oral agreement or statement for the purpose of contradicting, varying, adding to or subtracting from them. The provisos to Section 95 allow proof of facts such as fraud or mistake, a separate oral agreement on a matter the document does not cover, an oral condition precedent, a later oral agreement to rescind or modify, a usage or custom, and facts showing how the language relates to existing facts.

Does Section 95 BSA bind a person who did not sign the document? No. Section 95 applies only as between the parties to the instrument or their representatives in interest, and Section 102 BSA (formerly Section 99 IEA) lets persons who are not parties give evidence of a contemporaneous agreement varying the document. In Bai Hira Devi v. Official Assignee of Bombay, [1958] 1 S.C.R. 1384, the Supreme Court held that Section 92 IEA did not apply to proceedings between an Official Assignee and the donees of a gift deed.

Can a party show that a written agreement was a sham? In Roop Kumar v. Mohan Thedani, [2003] 3 S.C.R. 292, the Supreme Court recorded its earlier rulings that a party to a deed may contend that it was not intended to be acted upon but was only a sham, and that oral evidence is admissible to show that some other agreement was made. On the facts, the plea failed because the evidence showed the appellant had acted on the agreement. The operative words of Section 92 IEA are carried into Section 95 BSA.

When can a later oral agreement modify a written contract? The fourth proviso to Section 95 BSA allows proof of a distinct subsequent oral agreement to rescind or modify the contract, grant or disposition. It does not apply where the contract is required by law to be in writing, or where it has been registered under the law for the time being in force on registration of documents. The same limits were in proviso (4) to Section 92 IEA.

Which law applies to a suit or trial that was pending on 1 July 2024? Section 170(2) BSA provides that an application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as in force immediately before commencement. The BSA commenced on 1 July 2024 under notification S.O. 849(E). In such pending matters, Sections 91 and 92 IEA continue to govern.

Related

• Proving documents and secondary evidence — IEA 61-65 vs BSA 56-60
• Sections 3-4 IEA vs Section 2 BSA — Definitions
• Section 9 IEA vs Section 7 BSA — Facts necessary to explain or introduce relevant facts
• Section 114 IEA vs Section 119 BSA — Court presumptions
• Offence before 1 July 2024 — which law applies
• Evidence Act to BSA — master mapping table

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 56 to 60, 94 to 103 and 170; commencement footnote to Section 1 (S.O. 849(E)).
• Indian Evidence Act, 1872 (India Code text): Sections 91 to 100, with the footnotes to Sections 91 and 92.
• Judgments read in full text: Bai Hira Devi v. Official Assignee of Bombay (1958_1_1384_1394_EN.md); Roop Kumar v. Mohan Thedani (2003_3_292_308_EN.md); Mangala Waman Karandikar v. Prakash Damodar Ranade (2021_5_232_242_EN.md); West Bengal State Electricity Distribution Co. Ltd. v. Adhunik Power & Natural Resource Ltd. (Diary_74823-2025_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.