Evidence as to Matters in Writing under Section 147 of the Bharatiya Sakshya Adhiniyam, 2023

Section 94 provides that the terms of a written transaction may be proved only by the document. Section 147 is the provision that enforces it in the witness box. It permits the adverse party to ask a witness whether the matter he is deposing to was not contained in a document, and to object to the oral evidence until the document is produced. Without it, the best evidence rule would be a principle with no machinery, and a witness could give the terms of a deed orally before anybody had a chance to stop him.

1. The Provision

Section 147, BSA — Evidence as to matters in writing

Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Explanation. — A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.

Illustration. — The question is whether A assaulted B. C deposes that he heard A say to D — 'B wrote a letter accusing me of theft, and I will be revenged on him.' This statement is relevant, as showing A's motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Section 147 corresponds to Section 144 of the Indian Evidence Act and is carried forward unchanged.

2. The Two Triggers

The section operates in two situations, and they are not the same.

	First trigger	Second trigger
What happens	The witness is asked whether the contract, grant or disposition was not contained in a document, and says that it was	The witness is about to make a statement as to the contents of a document which, in the Court's opinion, ought to be produced
Who initiates	The adverse party, by asking the question	Arises from what the witness is about to say
Subject-matter	A contract, grant or other disposition of property	Any document the Court thinks ought to be produced
The Court's role	None at this stage — the witness's answer engages the section	The Court forms an opinion that the document ought to be produced

The first trigger is narrow in subject and wide in operation. It covers a contract, grant or other disposition of property — the same expressions used in Section 94 — and it is engaged simply by the witness admitting that the matter was in writing.

The second trigger is wider in subject and narrower in operation. It covers any document, but only where the court is of opinion that it ought to be produced. This is the discretionary limb, and it is the answer where a witness begins to recite the contents of a letter, a report or a register.

3. What the Objection Achieves

The adverse party may object to the evidence being given until one of two things happens.

The document is produced. The ordinary course — the writing is put before the court and proved, and the oral evidence is no longer needed for the terms.
Facts have been proved entitling the party to give secondary evidence of it. The alternative route, where the original cannot be produced.

The second alternative is the connection with the documentary-evidence chapter. The party calling the witness must establish a ground under Section 60 — that the original is with the opposite party and has not been produced after notice under Section 64, that it is lost or destroyed, that it is not easily movable, that it is a public document, or one of the other grounds — and must then give secondary evidence of the kind that ground permits, under Section 58.

⚠ The objection suspends rather than excludes

Section 147 does not shut the evidence out permanently. It postpones it until the document is produced or the foundation for secondary evidence is laid. A party met with the objection is not defeated; he is required to do properly what he was attempting to do by shortcut. The practical effect, however, is often decisive — because a party who cannot produce the document and cannot establish a ground under Section 60 will not be able to prove the terms at all.

4. Section 147 and Section 94

The relationship is that of a rule and its machinery, and neither works well without the other.

Section 94, BSA — Evidence of terms of contracts, grants and other dispositions of property reduced to form of document

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 is admissible.

	Section 94	Section 147
Where it sits	Chapter VI — Exclusion of oral evidence by documentary evidence	Chapter X — Examination of witnesses
What it is	The rule — the document is the only evidence of the terms	The machinery — how the rule is invoked in the witness box
Operates	On the admissibility of evidence of the terms	On the conduct of the examination
Who invokes it	Either party, at any stage	The adverse party, by objecting when the witness is under examination
Effect	Evidence of the terms other than the document is inadmissible	The evidence is suspended until the document is produced or a ground for secondary evidence is proved

Two observations follow. Section 147 is not confined to the terms of a transaction — its second trigger covers any document the court thinks ought to be produced, which is wider than Section 94. And Section 94 operates even where nobody objects, being a rule about admissibility, whereas Section 147 depends on the adverse party taking the point.

5. The Explanation and the Illustration

The Explanation is the most important part of the section in practice, because it identifies a large class of evidence that the rule does not touch.

A witness may give oral evidence of statements made by other persons about the contents of documents, if such statements are in themselves relevant facts.

The illustration shows exactly what this means. A is accused of assaulting B. C deposes that he heard A say: the letter accusing me of theft was written by B, and I will be revenged on him. That statement is relevant as showing A's motive, and C may depose to it although no evidence at all is given about the letter.

⚠ The distinction is between the contents and the fact that something was said about the contents

The rule excludes oral evidence of what a document says. It does not exclude evidence that a person said something about a document, where the saying of it is itself a relevant fact. In the illustration, nobody is proving what the letter contained — it may not even have existed. What is being proved is that A said what he said, which shows his state of mind. The letter is part of the narrative; the fact in issue is the motive.

The Explanation therefore covers a range of situations that would otherwise be caught by an over-wide reading of Section 94.

The evidence	Caught by the rule?
A witness deposes to the terms of a lease he read	Yes — this is evidence of the contents
A witness deposes that the accused said he had received a threatening letter, as showing his state of mind	No — Explanation and illustration
A witness deposes that a notice was served on the defendant	No — service is a fact, not the contents
A witness deposes to the date on which a document was executed	No — execution and its circumstances are facts, not terms
A witness deposes that a party acted on an agreement	No — conduct is a fact
A witness deposes to what a registered sale deed provided	Yes — the terms of a disposition of property

6. What Falls Outside the Section

The section is narrower than it is often assumed to be, and four classes of evidence are untouched by it.

Facts about the document, as distinct from its terms. That it exists, when it was executed, who signed it, that it was delivered, where it was kept, and what was done under it. Explanation 3 to Section 94 makes the point expressly in the parallel context: the statement in a document of a fact other than the terms does not preclude oral evidence about that fact.

Transactions not reduced to writing. The first trigger presupposes that the contract, grant or disposition was contained in a document. Where the arrangement was oral, there is nothing to produce and the section has no application.

Statements about contents that are themselves relevant facts — the Explanation and the illustration.

Documents the Court does not think ought to be produced. The second trigger is conditional on the court's opinion, and where a passing reference to an immaterial document is made, the court may permit the statement. The section says so expressly in the parallel provision of the earlier Act, which added that the court may permit the statement to be made where it does not consider that the document ought to be produced.

7. Taking and Meeting the Objection

7.1 Taking it

Ask the question first. The first trigger is engaged by asking the witness whether the matter was not contained in a document, and obtaining the admission.
Object before the contents are given. Once the witness has recited the terms, the objection is of limited value even though the evidence may be inadmissible.
Identify what the witness is about to depose to under the second trigger, and invite the court to form the opinion that the document ought to be produced.
Ask that the objection be recorded, since under the practice in Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1 the matter will ordinarily be decided in the judgment.
Press Section 94 in final argument as well, since it goes to admissibility and does not depend on the objection having succeeded at the time.

7.2 Meeting it

Produce the document if you have it. This is almost always the shortest route.
Establish a ground under Section 60 if you do not — loss, non-production after notice under Section 64, a public document, or another ground — and then give secondary evidence of the kind that ground permits.
Where the original is with the opponent, serve notice under Section 64 before the trial, so that the ground is available when the objection comes.
Bring the evidence within the Explanation where the point is not the contents but that something was said about them.
Reframe to elicit facts rather than terms — execution, delivery, conduct, the circumstances — none of which is caught.

8. The Position Stated Shortly

Section 147 is the machinery by which Section 94 is enforced in the witness box.
Two triggers — the witness admits the matter was in a document, or is about to state the contents of a document the Court thinks ought to be produced.
The first trigger is confined to a contract, grant or other disposition of property; the second covers any document.
The objection suspends the evidence until the document is produced, or facts entitling secondary evidence are proved.
The Explanation permits oral evidence of statements about the contents of documents where the statements are themselves relevant facts.
The illustration is the test — evidence of what a person said about a letter, to show motive, is admissible though nothing is proved about the letter.
Facts about a document are not its terms, and evidence of execution, delivery, custody and conduct is untouched.
Section 94 operates without an objection; Section 147 depends on the adverse party taking the point.

9. Related Topics and Provisions

Topic or provision	Connection
Exclusion of Oral Evidence by Documentary Evidence — Sections 94 to 103	The rule this section enforces
Sections 94 and 95 and the Six Provisos	The terms of a written transaction, and what may be said about them
Parol Evidence Rule	The doctrine within which both provisions sit
Kinds of Secondary Evidence	The grounds in Section 60, which answer the objection
Notice to Produce a Document — Section 64	How the ground is created where the original is with the opponent
Best Evidence Rule	The principle underlying Section 94
Examination of Witnesses — Sections 140 to 168	The chapter in which Section 147 sits
Judge Decides Admissibility — Section 141	The Court's opinion, and the practice of reserving objections