Section 91 of the Evidence Act prohibits evidence of the terms of a contract, grant, or other disposition of property, but allows for the admissibility of oral evidence when the existence of a sale is in question and not its terms.

Phillips, J.

1. The only question of law that is raised in this appeal is whether the Subordinate Judge was right in admitting oral evidence of a purchase by 1st defendant from D.W. 2. The sale deed was registered but only a copy was produced in Court which was held to be inadmissible and it is now argued that oral evidence of that sale is inadmissible under Section 91 of the Evidence Act. That section provides (Section 91 quoted.) If it were necessary in this case to prove the terms of the sale that section would undoubtedly be applicable but all that was sought to be proved was the factum of purchase by 1st Defendant. The terms on which that purchase was made were quite irrelevant and had not to be proved in the present case. It is however argued that although Section 91 only prohibits evidence of the terms of "such a contract, grant or other disposition of property," yet in regard to the further class of cases in which any matter is required by law to be reduced to the form of a writing no evidence shall be given in proof of such matter i.e., any evidence not only of the terms of such matter but also of the existence of such matter is altogether excluded. No authority has been pointed out for reading the section in this manner and I certainly am of opinion that it is not right and that the word term is applicable to both classes of document.

2. The cases relied upon by the appellants are Maung Tun v. Maung Khan A.I.R. 1925 Rang. 61., Parameshri Devi v. Autor Singh [1921] 3 L.L.J. 173 and Safar Ali v. Mohash [1916] 23 C.L.J. 122. In the first two cases undoubtedly the terms of the document were in issue and consquently Section 91 would be applicable : and, although in the Rangoon case the document was one required by law to be registered the learned Judge distinctly refers to the fact that the evidence sought to be given was as to the terms of the mortgage, The case in Safar Ali v. Mohash [1916] 23 C.L.J. 122, is more in appellants favour, but even, in that case the sale in question was the sale upon which plaintiff based his title and was the foundation for his suit. Consequently it was impossible for plaintiff to prove his title unless he proved the terms of the sale deed. If the decision meant to declare that the mere existence of the sale or the mere fact of the purchase could not be proved by oral evidence I must respectfully venture to differ, for so early as in Sibulsain Mookerji v. Bhuthath Gerchait 22 W.R. 425., it was held that where the contents of a lease are in question it is necessary to prove them by the production of the document. Where this is not the case oral evidence of the patta is admissible. Similarly in Chhotalal Aditram v. Bai Muhakore [1917] 41 Bom. 466, the factum of partition was allowed to be proved without the production of the deed. In Amir All v. Aykub Ali [1914] 41 Cal. 347, oral evidence of rent under a tenancy was held to be admissible although the lease was inadmissible in evidence. These two cases clearly support my view that when the existence of a sale is in question and not its terms oral evidence is admissible. The Judge has based his finding on this oral evidence which I hold to be admissible. The appeal is, therefore, dismissed with costs.