Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Who may give Evidence of Agreement Varying the Terms of a Document [Section 102]
Statutory Provision
Section 102 provides that:

• Persons who are not parties to a document, or not representatives in interest of the parties,
• May give evidence of any facts tending to show that there existed a contemporaneous agreement varying the terms of the document.

Meaning of Section 102

• This section deals with evidence by third parties (non-parties) to a document.
• While parties to a document are generally barred from giving oral evidence that contradicts or varies the written terms,
• Strangers to the document are not bound by this restriction and may prove facts showing that the written document does not represent the complete agreement.

Illustration

• A and B enter into a written contract where B agrees to sell cotton to A, payable on delivery.
• At the same time, they orally agree that A will be given three months’ credit.
• A and B cannot prove this oral agreement against each other.
• However, C, a third party whose interests are affected, may prove the existence of such an oral agreement.

Evidence by Non-Parties

• Parties to a document and their representatives are barred from leading evidence that:
  • Adds to
  • Subtracts from
  • Varies
  • Contradicts
    the written terms of the document.
• This restriction does not apply to non-parties.
• A person who is neither a party nor claiming through a party may give oral or other evidence to show:
  • A contemporaneous agreement
  • The true nature of the transaction
  • That the document does not reflect the full understanding between parties

Relation with Section 95

• Section 95 prohibits parties to a contract, grant, or disposition of property from contradicting its terms.
• Section 102:
  • Reinforces and clarifies this position
  • Applies to all documents, not only contracts
  • Explicitly permits non-parties to give evidence of varying agreements

Thus, Section 102 extends the principle of Section 95 to all kinds of documents and expressly recognizes the right of third parties to lead such evidence.

Scope and Significance

• Prevents injustice to third parties whose rights may be affected by a document they did not execute.
• Ensures that written documents cannot be used as a shield against persons who were not parties to them.
• Maintains the balance between:
  • Sanctity of written documents, and
  • Fairness to third parties.

Conclusion
Section 102 of the Bharatiya Sakshya Adhiniyam, 2023 permits non-parties to a document to give evidence of a contemporaneous agreement varying its terms. While parties themselves are bound by the written document, strangers are free to establish the real nature of the transaction when their interests are affected.