Evidence Law

Bai Hira Devi v. Official Assignee of Bombay

AIR 1958 SC 448

Facts

Daulatram executed a deed described as a gift in favour of:
his wife;
his sons.
He was later adjudged insolvent.
The Official Assignee applied to have the gift declared void under insolvency law.
The wife and sons argued that:
although the document was described as a gift;
the transaction was actually supported by valuable consideration.
They sought to lead oral evidence explaining the true nature of the transfer.
The Official Assignee objected under Section 92 of the Evidence Act.
He argued that oral evidence could not:
contradict;
vary;
add to;
subtract from, the written recitals stating that the transfer was a gift based on natural love and affection.
The trial judge permitted the evidence but rejected it on merits.
The Bombay High Court held that the oral evidence was legally inadmissible.
The donees appealed to the Supreme Court.

Whether Section 92 applied to proceedings between the donees and the Official Assignee.
Whether the Official Assignee was the insolvent’s representative-in-interest when challenging the transfer.
Whether oral evidence could be led to show that an apparent gift was actually for consideration.

Section 91 embodies the best-evidence rule:
where the terms of a transaction are reduced to writing;
the document is ordinarily the proper evidence of those terms.
Section 92 supplements Section 91.
Once the document is proved, parties to it and their representatives-in-interest generally cannot use oral evidence to contradict or vary its terms, subject to statutory exceptions.
The rule in Section 92 applies only:
between parties to the instrument; or
their representatives-in-interest.
A stranger to the document is not bound by the same exclusion.
Section 99 expressly recognises that persons who are not parties may prove contemporaneous facts varying the document.
Whether a person is a representative-in-interest depends upon:
the capacity in which they act;
whose legal interest they represent.

The Official Assignee did not challenge the gift on behalf of Daulatram.
Daulatram himself could not avoid his own transfer merely because he became insolvent.
The Official Assignee acted:
for the general body of creditors;
to bring property back into the insolvent estate;
under a statutory avoiding power.
His title and function were therefore different from those of the insolvent.
In challenging the deed, he was not the insolvent’s representative-in-interest.
The dispute was consequently not confined to parties to the document and their representatives.
Section 92 did not govern the proceeding.
Once Section 92 was inapplicable, Section 91 did not independently prohibit evidence about the real agreement.
Section 91 required the deed itself to be produced to prove its written contents.
The deed had been produced.
The separate question whether the apparent transaction concealed another arrangement was governed by Section 92.
Since the Official Assignee was a stranger for this purpose, oral evidence could be received.
The Court clarified that the evidence’s admissibility did not mean that it had to be believed.
The donees still had to prove that valuable consideration genuinely passed.
The trial judge had already rejected their factual case.
The Supreme Court therefore remitted the appeal so the High Court could consider the evidence on merits rather than exclude it altogether.

The Supreme Court held that Section 92 did not bar the oral evidence.
The Official Assignee, when seeking to avoid the transfer for creditors, was not acting as the insolvent’s representative-in-interest.
The donees were entitled to attempt to prove that the apparent gift was actually supported by consideration.
The case was remitted to the High Court for consideration of that evidence on merits.