Section 95 BSA: Exclusion of evidence of oral agreement
Bharatiya Sakshya Adhiniyam, 2023
Section 95 BSA at a Glance
Section 95 BSA deals with exclusion of evidence of oral agreement. It replaced Section 92 IEA on 1 July 2024.
Section 95 BSA Bare Act Text
95. Exclusion of evidence of 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 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:
Provided also that 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:
Provided also that the existence of any distinct subsequent oral agreement to rescind or modify 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:
Provided also that 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 also that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:
Provided also that 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 Kolkata to Visakhapatnam”. The goods are shipped in a particular ship which is lost. The fact that particular ship was orally excepted from the policy, cannot be proved.
(b) A agrees absolutely in writing to pay B one thousand rupees on the 1st March, 2023. The fact that, at the same time, an oral agreement was made that the money should not be paid till the 31st March, 2023, cannot be proved.
(c) An estate called “the Rampur tea estate” is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed cannot be proved.
(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B's as to their value. This fact may be proved.
(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.
(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.
(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words— “Bought of A a horse for thirty thousand rupees”. B may prove the verbal warranty.
(h) A hires lodgings of B, and gives B a card on which is written— “Rooms, ten thousand rupees a month”. A may prove a verbal agreement that these terms were to include partial board. A hires lodging of B for a year, and a regularly stamped agreement, drawn up by an advocate, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally.
(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this.
(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B who sues A upon it. A may show the circumstances under which it was delivered.
Source: Section 95, Bharatiya Sakshya Adhiniyam, 2023
Section 95 BSA in Simple Words
Section 95 of the Bharatiya Sakshya Adhiniyam, 2023 bars oral agreements or statements offered to contradict, alter, add to, or reduce the terms of a proved written document. It applies once a written contract, grant, disposition of property (transfer of property rights), or legally required document is proved under Section 94 BSA, and binds the parties and their representatives in interest (successors to the rights of a party).
The provisos to Section 95 BSA permit oral evidence in specific situations. A party may prove facts that invalidate a document or support a court order on it, including fraud, intimidation, illegality, improper execution, lack of capacity, failure of consideration (value given in return), or mistake of fact or law.
A party may prove a consistent oral agreement on a point where the document is silent, depending on how formal the document is, or prove an oral condition precedent (a requirement that must happen before any obligation attaches).
A party may also prove a later oral agreement to rescind (cancel) or modify the transaction, unless the law requires writing or the document is registered. Customary terms consistent with the express terms, and facts showing how the wording relates to existing facts, may be proved.
When Section 95 BSA Applies
- The terms of a written contract, grant, transfer of property, or matter required by law to be in a document have been proved in accordance with Section 94 BSA.
- The dispute is between the parties to that written instrument or their representatives in interest.
- A party seeks to give evidence of an oral agreement or statement to contradict, vary, add to, or subtract from the terms of the document.
- Even a subsequent oral agreement to cancel or modify a contract, grant, or property transfer cannot be proved when the law requires the transaction to be in writing or when the document has been registered.
Example of Section 95 BSA
When Section 95 BSA Does Not Apply
- A party may prove any fact that would invalidate a document or entitle a person to a decree or order relating to it, such as fraud, intimidation, illegality, lack of due execution or capacity, failure of consideration, or mistake of fact or law.
- A party may prove a separate oral agreement on any matter on which the document is silent and which is not inconsistent with its terms, having regard to how formal the document is, or a separate oral agreement forming a condition precedent to any obligation attaching.
- A party may prove a distinct later oral agreement to cancel or modify a contract, grant, or property transfer (except where required by law to be in writing or registered), usage or custom consistent with the express terms, or facts showing how the language of the document relates to existing facts.
Section 95 BSA in the IEA (Previous Law)
Section 95 BSA replaces Section 92 IEA from the old criminal code.
Section 92 of the Indian Evidence Act, 1872 became Section 95 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. No substantive change. The six provisos are now "Provided that" clauses. Illustrations use current places, dates and sums.
FAQs on Section 95 BSA
What is Section 95 BSA?▼
Section 95 of the Bharatiya Sakshya Adhiniyam, 2023 bars oral agreements or statements between the parties to a written contract, grant, disposition of property, or legally mandated document proved under Section 94 BSA when offered to contradict, vary, add to, or subtract from its terms. Its provisos allow oral evidence for invalidating facts like fraud or mistake, consistent oral agreements on silent matters, oral conditions precedent, certain later oral modifications, consistent customs, and facts relating the wording to existing facts.
Can a party prove fraud, intimidation, or failure of consideration against a written contract under Section 95 BSA?▼
Yes. A proviso to Section 95 BSA allows proof of any fact that invalidates a document or entitles a person to a court decree or order relating to it, including fraud, intimidation, illegality, lack of capacity, failure of consideration, or mistake.
When can a separate oral agreement on a matter not mentioned in the document be proved under Section 95 BSA?▼
When the document is silent on that matter and the separate oral agreement is not inconsistent with the written terms. Under Section 95 BSA, the court must consider how formal the document is when deciding whether this proviso applies.
Does Section 95 BSA allow a later oral agreement to cancel or modify a registered document?▼
No. Although a proviso to Section 95 BSA allows proof of a distinct later oral agreement to cancel or modify a contract, grant, or disposition of property, it does not allow this where the law requires writing or where the document has been registered.
Can a party prove an oral condition that had to be met before a written contract took effect under Section 95 BSA?▼
Yes. Under a proviso to Section 95 BSA, a party may prove a separate oral agreement that constitutes a condition precedent to any obligation attaching under the contract, grant, or disposition of property.
What is Section 95 BSA in IEA?▼
Section 92 IEA. Section 92 IEA became Section 95 BSA on 1 July 2024 with no substantive change, with the provisos formatted as Provided that clauses and the illustrations updated to current places, dates, and sums.
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Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·