Section 99 Evidence Act: Who May Prove an Agreement Varying a Document?
Section 99 of the Indian Evidence Act, 1872, corresponds to Section 102 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The provision explains when persons outside a written document may produce evidence of a simultaneous agreement that changes its written terms.
Text of Section 102 of the Bharatiya Sakshya Adhiniyam, 2023
102. Who may give evidence of agreement varying terms of document. Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.
The corresponding former Section 99 of the Indian Evidence Act, 1872, contained the same substantive rule.
Meaning and scope of the provision
Persons who are not parties are people who did not enter into the written document as contracting parties. Representatives in interest are persons claiming through the relevant non-party's legal interest. Contemporaneous agreement means an agreement made at the same time as the written transaction. Varying the terms means altering, qualifying or adding a different term to what the written document states.
The rule recognises that restrictions on contradicting or varying a written contract by oral evidence principally operate between the parties to that document and their representatives in interest. A person outside the transaction may need to establish the true surrounding arrangement where that person's legal interests are affected.
Section 102 does not mean that every alleged oral agreement is automatically proved or enforceable. A court must still assess relevance, credibility, burden of proof and any other applicable legal requirements.
Statutory illustration: Sale of cotton and three months' credit
A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery. At the same time they make an oral agreement that three months' credit shall be given to A. This could not be shown as between A and B, but it might be shown by C, if it affected his interests.
Explanation: The written contract requires payment on delivery, while the contemporaneous oral agreement allows A three months to pay. Ordinarily, A and B cannot rely on that oral agreement against one another merely to contradict the written payment term, subject to the statutory exceptions governing evidence between parties. If the arrangement affects C, a third person, Section 102 allows C to offer evidence of the contemporaneous agreement.
When can a third party rely on Section 102?
- There is a document: The dispute concerns written terms of a document.
- The person giving evidence is a non-party: The witness or claimant falls within the persons protected by this section, including their representatives in interest.
- The other agreement is contemporaneous: It was made at or about the time of the documented transaction.
- The agreement varies the document: The evidence tends to show different or additional terms.
- The evidence is otherwise relevant and admissible: The court evaluates the facts and applicable legal restrictions.
Relationship with other provisions
Section 94 BSA (former Section 91 Evidence Act) deals with proving the terms of contracts and other transactions reduced to writing. Section 95 BSA (former Section 92 Evidence Act) generally restricts evidence of oral agreements contradicting or varying written terms as between the parties and their representatives in interest, subject to its provisos. Section 102 BSA addresses evidence offered by persons outside that party relationship.
Read the related articles on Section 91, Section 92, and Section 100 of the former Evidence Act.
Official legislation
Consult the official India Code text of the Bharatiya Sakshya Adhiniyam, 2023 (PDF), particularly Sections 94, 95, 102 and 170. For the former statutory framework, consult the India Code legislation portal.
Frequently asked questions
What is Section 102 of the Bharatiya Sakshya Adhiniyam, 2023?
It permits a person who is not a party to a document, or a representative in interest of such a non-party, to give evidence of facts tending to show a contemporaneous agreement varying the document terms.
Can the parties to a written contract use this section to change its terms?
No. Section 102 specifically addresses non-parties and their representatives in interest. Evidence between contracting parties is subject to Section 95 of the BSA and its provisos.
What does contemporaneous agreement mean?
An agreement made at or about the same time as the written document, rather than a later modification.
Does the provision automatically prove an oral agreement?
No. It addresses admissibility of relevant evidence. The agreement and its effect must still be established under applicable rules of proof.
This article provides general legal information. Application of the provision depends on the facts, the applicable procedural regime and the evidence in the particular proceeding.