Bharatiya Sakshya Adhiniyam, 2023 – Section 102: Who May Give Evidence of Agreement Varying Terms of Document

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) marks a significant evolution in the Indian legal landscape. As a part of India’s initiative to reform colonial-era criminal laws, this Act replaces the Indian Evidence Act of 1872. One of its key purposes is to modernize the law of evidence to meet the needs of contemporary society, streamline court processes, and ensure fair trials. Among the numerous provisions introduced or restructured in the BSA, Chapter 6 deals with a foundational principle in the law of evidence — the precedence of documentary evidence over oral statements. Within this framework, Section 102 serves as a noteworthy exception that deserves close examination.

Understanding Chapter 6 of the BSA

Chapter 6 of the Bharatiya Sakshya Adhiniyam deals with the exclusion of oral evidence by documentary evidence. Generally, the principle is that when parties have put their agreement into writing, the written document is considered the best evidence of the terms agreed upon. This principle promotes certainty and avoids disputes that might arise from inconsistent recollections or dishonest claims regarding oral understandings.

However, law is rarely absolute. In some cases, oral evidence may still have relevance, particularly when it comes from individuals who were not parties to the written agreement. This is where Section 102 plays a pivotal role.

Section 102 – Who May Give Evidence of Agreement Varying Terms of Document

Section 102 reads:

“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.”

This provision carves out an important exception to the general rule that oral agreements cannot override or vary written contracts. While the signatories to a document are usually bound by its terms, third parties or their legal successors are not so limited. They may present evidence of an oral agreement made at the same time as the written contract if that evidence has a bearing on their rights or interests.

Analyzing the Language of Section 102

To appreciate the significance of Section 102, we must break it down into its components:

• "Persons who are not parties to a document": This refers to individuals who did not sign or were not direct participants in the contract or legal document in question.

• "Representatives in interest": This includes legal heirs, assignees, or anyone who stands in place of a party in terms of rights or obligations.

• "Evidence of any facts tending to show": This phrase implies that the evidence presented does not have to prove conclusively but should be reasonably capable of indicating the existence of a fact.

• "A contemporaneous agreement varying the terms": This refers to an oral agreement made at the same time as the written document, which modifies or supplements its terms.

The section is meant to prevent a rigid application of the exclusion rule, particularly in situations where the interests of third parties are at stake.

The Illustration Explained

The official illustration provided under this section is as follows:

“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.”

This simple example demonstrates the section’s function. Suppose C is a creditor of A, and it is important for C’s case to establish that A was not obligated to pay immediately upon delivery. Although A and B cannot use the oral agreement to override their written contract in a dispute between themselves, C, as a third party, can bring forward this oral agreement if it helps determine the rights or obligations relevant to his interests. This could potentially affect how C can recover his dues from A or the timing of enforcement.

Legal Reasoning Behind the Provision

At the heart of Section 102 is a delicate balance between two key objectives in legal evidence:

1. Preserving the sanctity of written agreements, and

2. Ensuring justice is not denied to third parties who had no role in drafting the contract.

Written documents are considered reliable because they are drafted with deliberation, often after negotiation, and are less prone to manipulation than oral agreements. Yet, the law recognizes that people external to a contract may be impacted by side agreements or circumstances not reflected in the document. Therefore, when a third party’s legal interest depends on the true nature of a transaction, the courts allow flexibility.

This section prevents injustice to individuals whose rights could be undermined by a narrow reading of a written contract to which they were not privy.

Relevance in Real-World Legal Scenarios

The principle embodied in Section 102 can apply across various legal contexts. Here are a few practical examples:

• Commercial Transactions: Suppose a supplier gives extended credit to a business owner, but the written contract mentions only immediate payment. A creditor of the business owner may need to show that extended credit existed to argue that the business remained solvent at a particular time.

• Property Disputes: A person may appear to sell property through a registered deed, but an oral side agreement might have allowed delayed possession or included other obligations. A legal heir or tenant might need to introduce this oral agreement to protect their own rights.

• Inheritance Conflicts: In cases where a will or trust document is silent on a specific arrangement, a family member who is not a signatory might introduce oral evidence that clarifies the deceased’s intentions.

Judicial Interpretation and Commentary

Although Section 102 is a new provision under the BSA, similar principles existed under the Indian Evidence Act, 1872. Courts have long acknowledged that third parties should not be unfairly prejudiced by the strict application of the rule that oral evidence cannot vary written contracts.

In the case of Roop Kumar v. Mohan Thedani (2003), the Supreme Court of India observed that while parties to a written contract cannot contradict its terms with oral agreements, exceptions must be made where justice requires, particularly where non-parties are involved.

Judicial interpretation in the future will likely continue to balance the need for documentary certainty with the equitable need to protect the rights of those outside the original contract.

Limitations and Safeguards

While the provision serves justice, it also opens the door to potential misuse. Third parties might fabricate claims of oral agreements to gain an advantage. Therefore, the courts are expected to scrutinize such evidence carefully. Oral evidence must be credible, consistent, and corroborated by surrounding facts and conduct.

Moreover, the requirement that the oral agreement be “contemporaneous” limits its scope. Any agreement made significantly before or after the written document cannot be used to alter its terms. This ensures that Section 102 is not used to insert afterthoughts or subsequent changes disguised as original intent.

Read also: BSA Section 69

Conclusion

Section 102 of the Bharatiya Sakshya Adhiniyam, 2023 serves a vital function in the law of evidence. It allows third parties to present oral evidence of contemporaneous agreements that vary written documents — something parties to the contract themselves cannot generally do. This exception reflects a nuanced understanding of how legal documents interact with real-world relationships and commercial practices.

By allowing room for third-party voices, Section 102 promotes fairness and prevents rigid application of legal rules from leading to injustice. At the same time, the courts bear the responsibility of carefully weighing such evidence to ensure it serves truth and not convenience. As this provision begins to be tested in litigation, it will be important to observe how courts interpret the balance it strikes between the formality of writing and the complexity of human transactions.