(g). Payment of money may be proved by oral evidence, even if there be a written receipt not produced-Dalip Singh v. Durga Prasad, I. L. R. 1 All. 442.

(k). Oral evidence is admissible to prove payment of a bond debt, even if there be a clause in the bond to the effect that all payments are to be entered on the back of the bond and no payment is to be deemed to have been made if not so entered-Narayen Undir Patel v. Mati Lal Ramdas, I. L. R. 1 Bom. 45.

Oral

evidence

must be direct.

60. Oral evidence must, in all cases,

whatever, be direct; that is to say :

If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it:

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it :

If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that maner :

If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable :

Provided also that, if oral evidence refers to the existence or condition of any material thing other

than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

Object of the Section. This section asserts that whatever may be the relation of a fact to be proved to the fact in issue, it must, if proved by oral evidence, be proved by direct evidence. For instance, if it were to be proved that A, who died fifty years ago, said that he had heard from his father B, who died 100 years ago, that A's grandfather C had told B that D, C's elder brother, died without issue, A's statement must be proved by some one who, with his own ears, heard him make it. If (as in the case of verbal slander) the speaking of the words was the very point in issue, they must be proved in precisely the same way.* Referring to this section, the Select Committee said: "This provision taken in connection with the provisions on relevancy contained in Chapter II will, we hope, set the whole doctrine of hearsay in a perfectly plain light, for their joint effect is this: 1st-The sayings and doings of third persons are, as a rule, irrelevant, so that no proof of them can be admitted; 2nd-In some excepted cases they are relevant ; 3rd-Every act done or word spoken, which is relevant on any ground, must (if proved by oral evidence) be proved by some one who saw it with his own eyes or heard it with his own ears."

Scope of the Section.-"This section provides that when it (the oral evidence) refers to a fact which could be seen, it (the oral evidence) must be the evidence of a witness who says he saw it. The last 'it' is somewhat indefinite; but I think that this 'it' has reference to the 'fact' previously spoken of; and I think the fact previously spoken of is the fact deposed to; and therefore not always the fact which it is ultimately intended to prove. In other words, I do not think it was intended by this section to exclude circumstantial evidence of things which could be seen, heard, and felt, though the wording of the section is undoubtedly ambiguous, and at first sight might appear to have that meaning. Vide remarks of Markby J. in the case of Nil Kanto Pandit v. Juggobundhu Ghose, 12 B. L. R. (App.) 18.

Direct. That is, the evidence must consist of a declaration by the witness that he perceived by his own senses the fact to which he testifies. The word 'direct' is here used as opposed to mediate or derivative or what is generally called 'hearsay.'

* Vide Step. Digest, 177.

Reasons for excluding Derivative Evidence.- "The foundations of the rule lie much deeper than this. Instead of stating as a maxim that the law requires all evidence to be given on oath, we should say that the law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstances as expose him to all the penalties of falsehood, which may be inflicted by any of the sanctions of truth. The true principle therefore appears to be this, that all secondhand evidence, whether of the contents of a document or of the language of a third person, which is not connected by responsible testimony with the party against whom it is offered, is to be rejected."-Best, 8th Ed., 435.

Proviso 1.-This proviso should be read with sections 45 and 46 ante. The English law does not admit such evidence.

Vide note to sec. 57 ante.

Proviso 2.- Vide note to sec. 3., p. 11.

CHAPTER V.

OF DOCUMENTARY EVIDENCE.

61. The contents of documents may be proved

Proof of con

tents of docu

ments.

either by primary or by secondary evidence.

Scope of the Section.-This section does not override the laws as to Stamps and Registration. It is, therefore, the first business of the Court to satisfy itself whether a document tendered is admissible at all. If it is clearly no evidence between the parties, or otherwise inadmissible, it should be rejected at once. The documentary evidence which is admissible may be divided into two classes; one class which requires no proof and another class which requires proof. If a document comes under the latter class, the general rule is that its contents should be proved by primary evidence. It is a cardinal rule of evidence, not one of technicality, but of substance, which it is dangerous to depart from, that where written documents exist, they shall be produced as being the best evidence of their contents. Primary evidence is required as a rule, but this is subject to seven

important exceptions in which secondary evidence may be given. Vide sec. 65 post.

Secondary Evidence. The rules as to the admission of secondary evidence are subordinate to, or exceptions from, the cardinal rule that a party to a contentious suit must produce the best evidence in his possession. These rules are concerned with the quality, not the quantity of the evidence. The cardinal rule is designed to prevent a species of fraud which litigants are tempted to commit the withholding of, or tampering with evidence against them, by abstaining from telling the whole truth or producing the whole evidence. The subordinate rules are necessitated by the exigencies of business. They extend, it is to be remembered, not only to documentary, but to oral evidence also.*

The rule that documents may be proved by primary evidence must be read subject to the provision in section 68 as to attesting witnesses.

Refer to sections 62-66 on the subjects of primary and secondary evidence and their admissibility.

62. Primary evidence means the document itself Primary evi- produced for the inspection of the Court.

dence.

Explanation 1.-Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2.-Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original,

* Vide remarks in Duchess of Kingston's case, 20 State Trials.

they are not primary evidence of the contents of the original.

Illustration.

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

Primary Evidence.-In the proceedings against Queen Caroline, Abbott C. J. said: "In their judgment it is a rule of evidence as old as any part of the common law of England, that the contents of a written instrument, if it be in existence, are to be proved by the instrument itself, and not by any parol evidence." The contents of documents must be proved either by the production of the document, which is called primary evidence, or, after satisfactorily accounting for failure to produce the original, by copies or oral accounts of the contents, which are called secondary evidence.

"Where the contents of any document are in question, either as a fact directly in issue, or a sub-alternate principal fact, the document is the proper evidence of its own contents. But where a document of any description is not a fact in issue, and is used as evidence to prove some act, independent proof aliunde is receivable."-Best.

Principle of Provisions in Documentary Evidence.-One single principle runs through all the propositions relating to documentary evidence. It is that the very object for which writing is used to perpetuate the memory of what is written above, and so furnish permanent proof of it. In order that full effect may be given to this, two things are necessary, namely, that the document itself should, whenever it is possible, be put before the Judge for his inspection, and that if it purports to be a final settlement of a previous negotiation, as in the case of a written contract, it shall be treated as final, and shall not be varied by word of mouth. If the first of these rules were not observed, the benefit of writing would be lost. There is no use in writing a thing down unless the writing is read. If the second rule were not observed, people would never know when a question was settled, as they would be able to play fast and loose with their writings.-Stephen's Evidence Act, 172.

Admission of Contents.-Under sec. 22, oral admissions of the contents of a document are irrelevant until the right to use secondary evidence is established.