Quick answer
Generally, no. When the terms of a contract have been reduced to writing, Section 94 B.S.A. requires those terms to be proved by the document itself (or permitted secondary evidence), and Section 95 B.S.A. bars evidence of any oral agreement, between the parties or their representatives in interest, to contradict, vary, add to or subtract from the written terms. The provisos to Section 95, however, allow proof of fraud, mistake, a separate oral agreement on a matter the document is silent on, a condition precedent, and in some cases a later oral variation.
The law: Sections 94 and 95 B.S.A.
Section 94 (evidence of terms of contracts, grants and other dispositions of property reduced to form of document): where the terms of a contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been reduced to a document, no evidence of those terms may be given except the document itself or secondary evidence where that is admissible. Exceptions: the written appointment of a public officer need not be proved if the person is shown to have acted as such officer, and a will admitted to probate may be proved by the probate.
Section 95 (exclusion of evidence of oral agreement): once the terms are proved under Section 94, no oral agreement or statement is admitted, as between the parties or their representatives in interest, to contradict, vary, add to or subtract from them. Its provisos, traditionally counted as six (the B.S.A. prints the "not repugnant" condition on usage as a separate proviso), permit proof of:
- any fact that would invalidate the document or entitle a person to a decree, such as fraud, intimidation, illegality, want of due execution, want of capacity, want or failure of consideration, or mistake in fact or law;
- a separate oral agreement on a matter on which the document is silent and which is not inconsistent with it (the court considers how formal the document is);
- a separate oral agreement that is a condition precedent (a condition that must happen before any obligation attaches);
- a distinct later oral agreement to rescind or modify the contract, except where the contract is required by law to be in writing or has been registered;
- a usage or custom that normally attaches incidents to such contracts, if not repugnant to the express terms;
- any fact showing how the language of the document relates to existing facts.
Barred and permitted oral evidence compared
| Barred between the parties | Permitted |
|---|---|
| An oral promise at signing that the written rent or due date will not apply (Illustration (b): a written promise to pay on 1 March cannot be varied by an oral term to pay on 31 March) | Proof that the document was obtained by fraud or misrepresentation, or contains a mistake (Illustrations (d) and (e)) |
| Oral exclusion of something the document expressly covers (Illustration (a)) | An oral term on a matter the document is silent on, such as credit terms in a simple order letter (Illustration (f)); and evidence by a non-party of a contemporaneous variation (Section 102 B.S.A.) |
Neha and Armaan sign a clear rent agreement fixing rent at ₹20,000 a month. Later Armaan, the tenant, says that when they signed, Neha orally agreed to accept ₹10,000. That oral term directly contradicts the written rent, so Section 95 bars it between the parties. But if Armaan proves that Neha obtained his signature by fraud, for example by replacing the agreed page, the first proviso lets him prove those facts to challenge the document.
Current-law note
Sections 94 and 95 B.S.A. correspond to Sections 91 and 92 of the old Indian Evidence Act, 1872, and Section 102 B.S.A. corresponds to old Section 99. The B.S.A. came into force on 1 July 2024 (S.O. 849(E), dated 23 February 2024). For exam answers on this topic, see the B.S.A. previous year papers solved.
Exam point
Section 94 B.S.A. (old Section 91): written terms are proved by the document; Section 95 (old Section 92): no oral agreement to contradict or vary them between the parties, except under its six provisos (invalidating facts such as fraud or mistake, silent matters, condition precedent, later variation, usage or custom, and how the language relates to existing facts).
