100. Presumption as to documents thirty years old. Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons; handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation. For the purposes of this Article and Article 92, documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or it the circumstances of the particular case are such as to render such an origin probable.
Illustrations
(a) A has been in possession of landed property for long time. Her produces from his custody deeds relating to the land, showing his titles to it. The custody is proper.
(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.
(c) A, a connection of B, produces deeds relating to lands in B’s possession which were deposited with him by B for safe custody. The custody is proper.
101. Certified copy of documents thirty years old. --- The provisions of Article 100 shall apply to such copy of a document referred to in that Article as is certified in the manner provided in Article 87 and is not less than thirty years old; and such certified copy may be produced ill proof of the contents of the document or part of the document of which it purports to be a copy.
CHAPTER VI
OF THE EXCLUSION OF ORAL BY DOCUMENTARY
EVIDENCE
102. Evidence of terms of contracts, grants and other disposition of property reduced to form of documents. --- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1. When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2. Wills admitted to probate in Pakistan may be proved by probate.
Explanation 1. This Article applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.
Explanation 2. Where there are more originals than one, are original only need be proved.
Explanation 3. The statement, in any document whatever, of a fact other than the facts referred to in this Articles, shall not preclude the admission of oral evidence as to the same fact.
Explanation 3. The statement, in any document whatever, of a fact other than the facts referred to in this Articles, shall not preclude the admission of oral evidence as to the same fact.
Illustrations
(a) If a contract be contained in several letters, all the letters in which it is contained must be proved.
(b) If a contract is contained in a bill of exchange, the bill of ex change must be proved.
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
(d) A contracts, in writing with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion.
Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.
(e) A gives B a receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible.
103. 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 the last Article, 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;
Proviso (1). 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.
Proviso (2). The existence of any separate oral agreement as to an matter on which a document is silent, and which is not inconsistent with its terms may be proved. In considering whether or not to this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3). 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.
Proviso (4). 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 case in which such contract, grant or disposition or property is by law required to be in writing, or has been registered according to the law inforce for the time being as to the registration of documents.
Proviso (5). Any usage of custom by which incidents not expressly mentioned in any contract are usually annexed to contract of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6). 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 Karachi to London”. The goods are shipped in a particular ship which is last. The fact that particular ship was orally excepted from the policy cannot be proved.
(b) A agrees absolutely in writing to pay B Rs. 1,000 on the first March, 1984. The fact that, at the same time, an oral agreement was made that the money should not be paid till the thirty-first March cannot be proved.
(c) An estate called “the Khanpur 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 specified performance of a contract and also prays that the contract may be reformed as to one of its provisions, as that provisions 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 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 Rs.500”. B may prove the verbal warranty.
(h) A hires lodging of B, and gives a card on which is written “Rooms, Rs. 200 a month.” A may prove a verbal agreement that these terms were to include partial board.
A hires lodging of B for a year, an 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 terms 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 sent 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.
104. Exclusion of evidence against application of document to existing facts. When language used in a document is plain in itself, and when it applied accurately to existing acts, evidence may not be given to show that it was not meant to apply to such facts.
Illustration
A sells to, by deed, “my estate at Rangpur containing 100 bighas.” A has an estate at Rangpur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was not situated at the different place and of a different size.
105. Evidence as to document unmeaning in reference to existing facts. When language used in a document in plain is itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.
Illustration
A sells to B, by deed “my house in Karachi.”
A had no house in Karachi, but it appears that he had a house at Keamari, of which B had been in possession since the execution of the deed.
These facts may be proved to show that the deed related to the house at Keamari.
106. Evidence as to application of language which can apply to one only, of several persons. When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one, of several persons or thing, evidence may be given of facts which show which of those persons or things it was intended to apply to.
Illustrations
(a) A agrees to sell to B, for Rs. 1,000 “my white horse.” A has two white horses. Evidence may be given of acts which show which of them was meant.
(b) A agrees to accompany B to Hyderabad. Evidence may be given of facts showing whether Hyderabad in the Dekkhan or Hyderabad in Sindh was meant.
107. Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies. When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.
Illustration
A agrees to sell to B “my land at X in the occupation of Y”. A has land at X, but not in the occupation of Y, and he has land in the occupation of Y, but it is to at X. Evidence may be given of facts showing which he meant to sell.
108. Evidence as to meaning of illegible characters, etc. Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, absolute, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense.
Illustration
A a sculptor, agrees to sell to B, “All my mods.”
A has both models and modeling tools. Evidence may be given to show which he meant to sell.
109. 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.
Illustration
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 show as between A and B, but it might be shown by C, if it affected his interest.
110. Saving of provisions of Succession Act relating to wills. Nothing in this Chapter contained shall be taken to affect any of the provisions of the Succession Act, 1925 (XXXIX of 1925), as to the construction of wills.
