সতর্কীকরণ! কেস রেফারেন্স ওয়েবসাইটে প্রকাশিত অধিকাংশ নজীর বিভিন্ন বই ও ওয়েবসাইট থেকে সংগ্রহ করা হয়েছে। এই সকল নজীর এর সঠিকতার বিষয়ে কেস রেফারেন্স ওয়েবসাইট কোন নিশ্চয়তা প্রদান করে না। কেস রেফারেন্স ওয়েবসাইটে প্রকাশিত নজীর এর উপর নির্ভর এর আগে সংশ্লিষ্ট নজীরটির রেফারেন্স মিলিয়ে নেওয়ার অনুরোধ করা হচ্ছে।
Oral Evidence- Considerations
The Supreme Court says where no evi- dence is produced in rebuttal of the Oral evidence but that does not mean that the Court is bound to accept that evidence. The Judges are not computers. In asserting the value to be attached to Oral evidence, they are bound so call into aid their experience of life. As Judges of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities.
Chaturbhuj Pande v. Collector, Raigarh, AIR 1969 SC 255.
Reliance on oral evidence of the interested witnesses in utter disregard of the principles of law of evidence deprecated. Abani Mohan Saha vs Asstt. Custodian 39 DLR (AD) 223.
Muslim Marriage is a socio–religious contract between a man and a woman and as such signatures of the parties in the Kabinnama are essential for proving marriage. No amount of oral evidence can cure the deficiency and no amount of oral evidence is sufficient to prove marriage when the plaintiff fails to prove the Kabinnama according to law. Khodeja Begum and others vs Md Sadeq Sarkar 50 DLR 181.
Reconveyance–On the face of registered instrument and in the absence of any contemporaneous written instrument, the oral evidence is not at all sufficient to hold that there was any agreement between the parties for reconveyance of the suit land. The established rule of evidence to be relied is that oral evidence is inadmissible for the purpose of asserting the intention of the parties in the face of the written instrument. Budhiswar Biswas vs Akbar Ali Sheikh 43 DLR 183.
Since the Hukumnama shows that Firoz is the only recipient of the land oral evidence to prove that the same is not correct cannot be allowed. Abu Ashed Bhuiyan and others vs Abu Taher Bhuiyan and others 54 DLR 209.
What sections 91 and 92 provide–It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing terms of a document or of ascertaining the intention of the parties thereto. Feroza Majid vs JB Corporation 39 DLR (AD) 78.
Although oral evidence contradicting the contents of a document is not generally admitted, such evidence is admissible in exceptional circumstance when the validity of the document itself on the ground of fraud is in issue. Tuglak Khan vs Sultan Nasiruddin 45 DLR 615.
Oral evidence when inadmissible–It is surprising to notice that the subordinate Judge could be oblivious of the provision of law and decide a question of fact on the basis of inadmissible oral evidence of no worth at all contrary to admitted documentary evidence on record and could also decide the question of fact without consideration of the contents of the relevant documentary evidence. Pragati Industries Ltd vs Shahida Khatun 43 DLR 429.
Written terms of the contract cannot be altered or varied by oral evidence. Serajul Islam (Md) vs Binoy Bhusan Chakraborty and others 47 DLR 248.
There is nothing in section 92 of the Evidence Act to prevent the admission of oral evidence to prove that a mortgage has been discharged partly by payment and partly by release of debt. Tafzal Ahmed Contractor vs Abdur Rahim and others 48 DLR (AD) 94.
The onus lies heavily on the plaintiff to prove that his predecessor got delivery of possession of the property and he inherited the same by producing documentary and oral evidence but the plaintiff failed to prove that and even no secondary evidence was attempted to be taken hence no interference with the impugned judgment is called for.
Aftabuddin Sarkar vs Ashek Ali Mothers 7 BLC (AD) 97.
The lower appellate Court has rightly observed that a written registered document cannot be altered or varied by oral evidence. It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing terms of a document or of ascertaining the intention of the parties thereto.
Abdul Mannaf vs Joynal Abedin and another 10 BLC 361.
The oral evidence is not admissible in varying or contradic ting the recitals contained in the registered sale deed in view of the sections 91 and 92 of the Evidence Act which clearly excludes oral evidence for the purpose of varying or contradicting the terms contained in a registered document. The trial Court has committed wrong and error in granting one-third share to the plaintiffs accepting the oral evidence of the DWs overlooking the provision of sections 91 and 92 of the Evidence Act.
Begum Jan and others vs Moklesur Rahman and ors 6 BLC 580.
Evidence —Its admissibility in a preemption case — No evidence is admissible to vary the contents of the documents by any oral evidence — In a pre-emption case it is the transfer which is sought to be pre-empted.
Jaynal Abedin Molla Vs. Aliar Rahmax and others; 3BLD (AD) 105
Admissibility of oral evidence?
In a pre-emption case sale or exchange can be decided — Whether evidence can be adduced to prove that the document is not what it purports to be When the disputed Kabala is between stranger to the document in question and a party thereto, there is no bar in leading oral evidence to prove that the document in question is not what it purports to be but when it is between the parties to the document such evidence is not admissible — There is no error of law in holding that the transaction is an exchange and not a sale and as such exempted from preemption — State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 96
Brindaban Das and another Vs. Ershad Ali Mondal, 6BLD (HCD)85
Ref. 17 DLR 15; 26 DLR(SC) 59; 35 DLR(AD)230; A.I.R. 1958 (SC)448 — Cited.
Admissibility of oral evidence — Whether a sale deed can be declared a mortgage deed solely on oral evidence — Oral or extraneous evidence to contradict the terms of the contents of a document is inadmissible — It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the intention of the parties thereto — Evidence of the witnesses that the document is not a sale deed but is a mortgage deed is clearly inadmissible.
Mrs. Feroza Majid and another Vs. Jiban Biina Corporation, represented by its Managing Director, 7BLD(AD)124
Ref. 27 l.A. 58 — Cited.
Exclusion of oral evidence—Admission of oral evidence of the acts and conducts of the parties in determining the true nature of the transaction does not infringe upon the provision of section 92 of the Evidence Act — it can be shown by oral evidence that though a document in a particular form was executed, in fact it is different from what it appears to be — When a docuriient is meant merely as an informal memorandum of transaction and not as a document embodying disposition of a property, oral evidence is not excluded.
A.M. Abul Kashim Vs. Nasiruddin Ahmed and others; 8BLD (HCD) 33
Ref. 37 DLR 87 — Cited.
Evidence — whether it is admissible to vary the terms of a written and registered document — Oral evidence though not admissible to vary, modify or alter the terms of a written registered document, will however be admissible to prove that the nature and character of the instrument is different from what it is alleged to be or that the instrument was a mere paper transaction that it was never intended to be given effect to or acted upon.
Mozem Par and others Vs. Fazie Karim Biswas and others; 4BLD (HCD) 173
Ref. 19 DLRI7; 38 l.A. Page-85; (1924) 51 l.A. Page-305; 38 C.W.N. Page — 883; 20 C.W.N. Page-347; 16 DLR(SC)629; PLl968(Karachi) 307; A.LR. 1936 (PC) 61 — Cited.
Onus to prove parentage — When oral evidence was inconclusive to decide the question of parentage whether the Court can decide the same on the basis of the documents showing dealings with the property — The onus was on the plaintiff to prove that his father Nagar was the son of Gour Majhi — In view of the inconclusive testimony of the witnesses as to parentage of the plaintiff, the appellate Court rightly dismissed the suit when the documentary evidence as to the ownership, use and mode of transfer of the impartibly property clearly indicated that the plaintiff had at no point of time raised any claim or had any possession in the suit property.
Sree Gopal Chandra Mondal and another Vs. Lasman Dasi and others; 7BLD (AD) 107
Documentary evidence- Exclusion of oral evidence— As provided under section 91 no evidence other than the document itself is admissible when the terms of contract or disposition of property are reduced to a document. Similarly section 92 prohibits contradiction of the contents of documents by oral evidence. Nadabipatra neither creates any interest nor it transfers title. Khorshed Ali Bhuiyan being dead his heirs Shamsun Nahar and others Vs. Gunjor Ali and others. 2, MLR (1997) (HC) 38.
Exclusion of oral evidence by documentary evidence— Deeumentary evidence excltides oral evidence as contemplated under section 94 of the Evidence Act, 1872. Bangladesh General Insurance Co. Ltd. Vs. Chalna Marine Products Co. Ltd. 4, MLR (1999) (HC) 158.
When a disputed deed is evidently an out and out Sale deed, Sections 91 and 92 of the Evidence Act stand as bar against interpretation it as a deed of gift. Oral evidence cannot alter or change the contents of the document. Mosammat Saleha Bibi V. Taib Ali Mollah and others, 13 BLD (HCD) 677.
Exclusion of oral evidence It is settled by consistent judicial pronouncements that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the Intention of the parties thereto. Thus no oral evidence to transform a nadabi-patra deed into a deed of gift is admissible. Khorshed Ali Bhuiyan Vs. Gsjan Ali, 17 BLD (HCD) 470.
No oral or extraneous evidence to contradict or vary the terms of the contents of the document is admissible under section 92 of the Evidence Act. It is thus clear that the written terms of a contract cannot be altered or varied by oral evidence. Md. Serajul Islam Vs. Sree Binoy Bhusan Chakraborty and others, 15 BLD (HCD) 241.
Oral Evidence barred under all circumstances? For proving his plea that the disputed sale deed under preemption was, in fact, a deed of release the pre-emptee is not debarred from adducing oral evidence to prove the real nature of the transaction. Under the circumstances, sections 91 and 92 of the Evidence Act do not stand in the way. Abul Hashem Vs Sheikh Ahmed and another, 17 BLD (HCD) 385. Ref: 39 DLR(AD)78; 44DLR(AD)270; 3 BLD(AD) 105; 43DLR 429; 35 DLR(AD) 334; PLD 1960 (Lahore) 231; 12 DLR 149; 19 DLR 17 and 654; 8BLD33; 6BLD88; AIR 1950(SC)15; AIR 1958(SC)448; AIR 1955 (Bombay) 320; 3BLD (AD) 105; PLD 1960 (1.,ahore)231; A1R1936(PC) 70; AIR 1931 (Orissa)177; DLR 1958 (SC) 448; AIR 1962 (Madras) 360; AIR 1958(SC) 50; AIR 1938(Nagpur) 335; 95 Indian Cases 512; 37 DLR87—Cited.
Section 92 of the Evidence Act does not preclude the admissibility of extrinsic evidence to show that the three disputed documents purported to be separate sale deeds are in reality part and parcel of the same transaction and are deeds of exchange. Patan Khan and others Vs. Amud Ali Sheikh and others, 14 BLD (HCD) 461. Ref: Ismail Shah Vs. Saleh Muhammad Shah A.I.R. 1925 (Lahore) 326; Ram Badan Lal and others Vs. Kunwar Singh and others, A.I.R. 1938 (AII)229; Randhir Singh and another Vs. Randhir Singh and others; A.I.R. 1937 (All) 665; Prabhu Dayal and another Vs. Shadi Ram and another, A.I.R. 1919 (Lahore) 246; Kishen Lal Vs. Ram Lal and others; A.I.R. 1927 (All) 696; Hanif-un-nisa Vs. Faiz-un-nisa, I.L.R. 33 (All) 340 = It IC.398-Cited.
Although under Section 92 of the Evidence Act oral evidence is inadmissible for the purpose of contradicting, varying, adding to, or subtracting from the terms of a written contract, Proviso (2) to Section 92 provides that the existence of any separate oral agreement as to any matter, on which the document is silent and which is not inconsistent with its term, may be proved. Tafzal Ahmed Contractor Vs. Abdur Rahim and others 16 BLD (AD) 160. Ref: Mohammad Ahmed Saeed Khan Vs. Kishori Lal, A.I.R. 1932 (Allahabad) 375; Kamala Sahai Vs. Babu Naridan Mian, 11CLJ 39; LalaBihari Lal Vs. Abdul Aziz, 119 I.C. 92;—Cited.
In a suit for specific performance of contract where the agreement for sale is not reduced to writing, the burden is heavily upon the plaintiff to prove by oral evidence that there was such an agreement; that consideration money was paid and any unpaid portion of the consideration was offered; and that in spite of the offer of the remainder of the consideration amount and request to execute and register the deed of sale, the defendant refused. [73 DLR (AD) 376]
Restitution of conjugal rights
Restitution of conjugal rights is a reciprocal right of both the husband and wife. It is thus neither discriminatory nor violative of any of the provisions of the Constitution.
The view taken by a Single Judge of the High Court Division in the case of Khodeja Begum and ors. Vs. Md. Sadeq Sarker, reported in 1 8BLD3 1 that no amount of oral evidence is sufficient to prove the marriage unless the marriage is attendant with a duly executed kabinnama or that restitution of conjugal rights is violative of social justice and repugnant to Article 27 of the Constitution is not a correct proposition of law.
Md. Chan Mia Vs. Rupnahar, 18 BLD (HCD) 329
Onus – in the instant case the specific case of the plaintiff being that he neither executed or registered the deed in question nor received the consideration money as mentioned in the kabala, he was entitled to adduce oral evidence to prove his said case. As the plaintiff adduced evidence to prove his case of non-execution and non-registration of the kabala by him and non-receipt of the consideration as well, the onus shifted upon the defendant to prove that it is the plaintiff who on receipt of the total consideration of taka 15,000/- executed and registered the deed which he failed. Foez Ahmed Vs. Joynal Abedin & Ors 12 BLT (HCD) 476
Exclusion of oral evidence—Admission of oral evidence of the acts and conducts of the parties in determining the true nature of the transaction does not infringe upon the provision of section 92 of the Evidence Act — it can be shown by oral evidence that though a document in a particular form was executed, in fact it is different from what it appears to be — When a document is meant merely as an informal memorandum of transaction and not as a document embodying disposition of a property, oral evidence is not excluded. A.M. Abul Kashim Vs. Nasiruddin Ahmed and others; 8BLD (HCD) 33 Ref. 37 DLR 87 — Cited.
Admissibility of oral evidence — Whether a sale deed can be declared a mortgage deed solely on oral evidence — Oral or extraneous evidence to contradict the terms of the contents of a document is inadmissible — It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the intention of the parties thereto — Evidence of the witnesses that the document is not a sale deed but is a mortgage deed is clearly inadmissible. Mrs. Feroza Majid and another Vs. Jiban Biina Corporation, represented by its Managing Director, 7BLD(AD)124 Ref. 27 l.A. 58 — Cited.
Exclusion of oral evidence It is settled by consistent judicial pronouncements that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the Intention of the parties thereto. Thus no oral evidence to transform a nadabi-patra deed into a deed of gift is admissible. Khorshed Ali Bhuiyan Vs. Gsjan Ali, 17 BLD (HCD) 470.
When a disputed deed is evidently an out and out Sale deed, Sections 91 and 92 of the Evidence Act stand as bar against interpretation it as a deed of gift. Oral evidence cannot alter or change the contents of the document. Mosammat Saleha Bibi V. Taib Ali Mollah and others, 13 BLD (HCD) 677.
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