Section 102 BSA: Who May Give Evidence of Agreement Varying Terms of Document?

Section 102 BSA allows non-parties to a document, or their representatives in interest, to prove a contemporaneous agreement that varies its terms.

Introduction

Section 102 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with who may give evidence of an agreement made at the same time as a written document that varies its terms. It permits persons who are not parties to the document, or their representatives in interest, to introduce evidence of facts tending to establish such a contemporaneous agreement.

The provision is important because the restrictions on oral evidence concerning written agreements do not operate identically in disputes involving the original parties and disputes involving third parties. A person who was not a party to a document may have independent legal interests affected by it and may need to establish the existence of a separate oral arrangement.

For example, A and B enter into a written agreement under which B will sell cotton to A, with payment due on delivery. At the same time, they orally agree that A will receive three months’ credit. Although A and B cannot rely on this separate agreement to vary the written terms through Section 102, C may be able to prove it if it affects C’s interests.

Section 102 substantially corresponds to Section 99 of the Indian Evidence Act, 1872. It should be read alongside Sections 94 and 95 BSA, which govern proof of documentary terms and the exclusion of oral agreements between parties to an instrument.

Bare Act: Section 102 of the Bharatiya Sakshya Adhiniyam, 2023

102. Who may give evidence of agreement varying terms of document.— Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.

Illustration

A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery. At the same time, they make an oral agreement that three months’ credit shall be given to A. This could not be shown as between A and B, but it might be shown by C, if it affected his interests.

Explanation of Section 102 BSA

1. Meaning of Section 102 BSA

Section 102 establishes a specific evidentiary rule for persons who are not parties to a document and their representatives in interest.

When two parties execute a written agreement, a third person may nevertheless be affected by the transaction. The third person may need to establish that the parties made a separate agreement at the same time that varied the written terms.

Section 102 permits evidence of facts tending to establish that contemporaneous agreement.

The central principle is that the restriction on oral evidence between the parties to a document does not automatically prevent a third party from proving a contemporaneous agreement when the third party’s interests are affected.

However, Section 102 does not give every third party an unrestricted right to challenge a written document. The evidence must be relevant to the third party’s interests and admissible under the applicable law.

2. Who may give evidence under Section 102?

The provision identifies two categories of persons.

A. Persons who are not parties to the document

A non-party is a person who did not enter into the particular written instrument as one of its parties.

For example, A and B execute a written agreement for the sale of goods. C is not a party to the document, but the transaction affects C’s legal or financial interests.

If A and B also made a contemporaneous oral agreement varying the written terms, C may be able to introduce evidence of that agreement where it affects C’s interests.

The statutory illustration expressly recognises this possibility.

B. Representatives in interest of non-parties

A representative in interest is a person who derives the relevant legal interest from another person. Depending on the circumstances, this may include a successor or another person who legally succeeds to the relevant interest.

Such a representative may be permitted to give evidence under Section 102 where the predecessor could have done so and the representative has the relevant legal interest.

Whether a particular person qualifies as a representative in interest depends on the nature of the relationship and the legal rights involved.

3. What is a contemporaneous agreement?

A contemporaneous agreement is an agreement made at the same time as the principal written document.

Also Read: Section 95 BSA: Exclusion of Evidence of Oral Agreement

Section 102 specifically concerns an agreement that exists alongside the document and varies its terms. The provision does not expressly address every later modification or subsequent oral arrangement.

Example: A and B execute a written agreement for the sale of machinery, with payment due upon delivery. At the same time, they orally agree that a third person will receive a specified payment from the transaction.

If the separate arrangement affects C’s legal interests, C may seek to prove its existence under Section 102, subject to the applicable evidentiary requirements.

The key consideration is that the alleged agreement was contemporaneous with the written instrument.

4. What does it mean to vary the terms of a document?

To vary the terms of a document means to alter or qualify the effect of its written provisions through a separate agreement.

A contemporaneous oral agreement might concern matters such as the time of payment, the circumstances of performance or another term connected with the written transaction.

Section 102 allows an eligible non-party to introduce evidence tending to establish such an agreement where the third party’s interests are affected.

It is important to distinguish this rule from Section 95 BSA. Section 95 generally restricts parties and their representatives in interest from introducing oral agreements or statements to contradict, vary, add to or subtract from proved documentary terms, subject to its exceptions.

Section 102 does not simply remove that restriction for the original contracting parties.

5. Why is Section 102 important?

A written transaction may affect persons who did not sign the document. If those persons were always prevented from introducing evidence of a contemporaneous agreement, they could face difficulty protecting their own legal interests.

Section 102 recognises that the evidentiary restrictions applicable between the original parties should not automatically be extended to every dispute involving an outsider.

The provision therefore balances the reliability of written documents with the need to allow relevant evidence where a third party’s interests are affected.

Statutory Illustration Explained

The illustration under Section 102 provides a direct example of the provision’s operation.

A and B enter into a written contract under which B agrees to sell cotton to A, with payment due on delivery. At the same time, A and B orally agree that A will receive three months’ credit.

The written contract specifies payment on delivery, while the separate oral arrangement provides for deferred payment.

The illustration establishes the following position:

• Between A and B: The separate oral agreement cannot be proved under Section 102 to vary the written contract.
• Between C and the relevant parties: C may be able to prove the oral agreement if it affects C’s interests.

The reason is that Section 102 specifically recognises the evidentiary position of a non-party whose interests are affected by the written transaction.

The illustration does not mean that every third party can prove any oral arrangement regardless of relevance. The third party must establish the relevance of the evidence and satisfy the applicable rules of admissibility.

Section 102 vs Section 95 BSA

Sections 95 and 102 concern oral agreements that may affect written documents, but they operate differently.

Basis	Section 95 BSA	Section 102 BSA
Subject	Exclusion of evidence of oral agreements	Who may give evidence of a contemporaneous agreement varying documentary terms
Persons primarily concerned	Parties to the instrument and their representatives in interest	Persons who are not parties to the document and their representatives in interest
General rule	Restricts oral evidence intended to contradict, vary, add to or subtract from proved terms, subject to exceptions	Permits qualifying evidence of a contemporaneous agreement where a non-party’s interests are affected
Main purpose	Protects the integrity of written contractual terms	Recognises the evidentiary position of third parties affected by a written transaction
Illustration	A party cannot ordinarily introduce an oral term to contradict a written payment date	C may prove a contemporaneous oral agreement between A and B if it affects C’s interests

Key distinction: Section 95 governs the general restriction on oral variation between parties to an instrument. Section 102 addresses the ability of non-parties, and their representatives in interest, to prove a contemporaneous agreement affecting their interests.

Section 102 vs Section 94 BSA

Section 94 and Section 102 address different questions.

Basis	Section 94 BSA	Section 102 BSA
Main issue	How the terms of a contract or other covered transaction reduced to documentary form are proved	Who may prove a contemporaneous agreement varying those terms
Focus	Documentary proof	Evidence available to non-parties and their representatives in interest
Purpose	Establishes the prescribed means of proving the relevant documentary terms	Recognises the evidentiary position of outsiders affected by the document
Relationship	Provides the documentary-proof rule	Addresses a separate question concerning evidence of contemporaneous agreements

Section 94 establishes the documentary foundation, while Section 102 concerns the circumstances in which certain persons may introduce evidence of a contemporaneous agreement.

Also Read: Section 54 BSA: Proof of Facts by Oral Evidence

Important Case Laws on Section 102 BSA

Section 102 substantially corresponds to Section 99 of the Indian Evidence Act, 1872. The following Supreme Court decision is relevant to understanding the predecessor provision.

Bai Hira Devi v. Official Assignee of Bombay

Citation: AIR 1958 SC 448

Court: Supreme Court of India

Decision date: 20 February 1958

Legal principle: The Supreme Court examined the relationship between Sections 91, 92 and 99 of the former Indian Evidence Act, 1872. It explained that Section 92 restricted oral evidence intended to vary documentary terms in disputes between parties to an instrument or their representatives in interest.

The Court also considered the position of persons who were strangers to the document. It held that the restriction under Section 92 did not automatically apply to disputes involving strangers to the instrument. Section 99 expressly recognised the ability of such persons to introduce evidence of a contemporaneous agreement varying the document’s terms.

The Court further explained that, in a dispute between a party to a document and a stranger, the evidentiary restriction could be inapplicable to both sides in the circumstances considered in that case.

Relevance to Section 102 BSA: The decision is important because it explains the distinction between the restriction on oral evidence applicable between parties to an instrument and the evidentiary position of third parties. It provides a judicial foundation for understanding the principle carried forward by Section 102.

Important qualification: This judgment was delivered under the Indian Evidence Act, 1872, not Section 102 BSA. It remains relevant to the corresponding principle, but its application to a current dispute must account for the wording of the BSA and the facts of the case.

Law Commission of India, 185th Report

The Law Commission of India’s 185th Report, Review of the Indian Evidence Act, 1872, discussed Section 99 of the former Act.

The Report considered proposed changes that would have expressly addressed evidence of agreements contradicting, varying, adding to or subtracting from documentary terms, including disputes between parties and non-parties. It also discussed a limitation where the law requires a matter to be reduced to writing.

These proposals provide useful legislative background. They should not be mistaken for the enacted wording of Section 102 BSA, which retains the narrower language concerning persons who are not parties to a document and their representatives in interest.

Practical Examples of Section 102 BSA

Situation	Application of Section 102
A and B execute a written sale agreement and contemporaneously agree orally to defer payment; C’s interests are affected	C may be able to prove the oral agreement
A and B attempt to rely on their own contemporaneous oral agreement to change the written payment term	Section 102 does not provide them with that permission; Section 95 and its exceptions must be considered
A third party has no identifiable interest affected by the written transaction	The person cannot rely on Section 102 merely because they know about the alleged oral agreement
A representative succeeds to the relevant legal interest of a non-party	The representative may qualify, depending on the nature of the legal interest
A party alleges that the written agreement was modified by a later oral agreement	The issue is not automatically covered by Section 102, which concerns contemporaneous agreements

These examples are illustrative. The admissibility of evidence depends on the facts, the legal interest affected and the other applicable provisions.

Importance of Section 102 BSA for Law Students

Section 102 is important for understanding the limits of the rule excluding oral evidence concerning written documents.

1. Recognises third-party interests: It allows qualifying non-parties to prove contemporaneous agreements affecting their interests.
2. Clarifies the scope of documentary restrictions: It distinguishes disputes between the original parties from disputes involving outsiders.
3. Complements Section 95: It helps explain why the restriction on oral variation cannot be applied identically in every dispute.
4. Protects legitimate evidentiary claims: It permits relevant evidence where a non-party’s legal interests are affected.
5. Supports accurate interpretation: It helps courts distinguish the written terms from separate contemporaneous arrangements that may be relevant to an outsider’s claim.

Key Points for Law Students and Judiciary Exams

• Section 102 of the Bharatiya Sakshya Adhiniyam, 2023 deals with who may give evidence of an agreement varying the terms of a document.
• It substantially corresponds to Section 99 of the Indian Evidence Act, 1872.
• Persons who are not parties to a document, or their representatives in interest, may give evidence of facts tending to show a contemporaneous agreement varying the terms.
• The evidence must be relevant to the non-party’s interests.
• The statutory illustration concerns a written cotton sale agreement and a contemporaneous oral agreement providing three months’ credit.
• The original parties cannot rely on Section 102 itself to prove the oral variation between themselves.
• Section 95 generally governs the exclusion of oral agreements between parties to an instrument, subject to its exceptions.
• Bai Hira Devi v. Official Assignee of Bombay, AIR 1958 SC 448, is an important Supreme Court decision concerning the predecessor provision.
• Section 102 concerns contemporaneous agreements and should not automatically be applied to every subsequent oral modification.
• The provision does not create an unrestricted right to contradict a written document.

Frequently Asked Questions (FAQs)

What is Section 102 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 102 permits persons who are not parties to a document, or their representatives in interest, to give evidence of facts tending to establish a contemporaneous agreement varying the document’s terms.

Which section of the Indian Evidence Act corresponds to Section 102 BSA?

Section 102 BSA substantially corresponds to Section 99 of the Indian Evidence Act, 1872.

Can a third party prove an oral agreement that varies a written contract?

A third party may be able to prove a contemporaneous oral agreement under Section 102 if it affects that person’s interests and the evidence satisfies the applicable rules of admissibility.

Can the original parties use Section 102 to contradict their written agreement?

No. Section 102 is specifically concerned with persons who are not parties to the document and their representatives in interest. The original parties must consider Section 95 and its statutory exceptions.

What is a contemporaneous agreement under Section 102 BSA?

It is an agreement made at the same time as the principal written document. Section 102 concerns evidence of such an agreement where it varies the document’s terms and affects a non-party’s interests.

Which case law is important for Section 102 BSA?

Bai Hira Devi v. Official Assignee of Bombay, AIR 1958 SC 448, is an important Supreme Court decision under the predecessor provision. It explains the distinction between restrictions on oral evidence between parties to an instrument and the evidentiary position of third parties.

Conclusion

Section 102 of the Bharatiya Sakshya Adhiniyam, 2023 recognises that a written transaction may affect people who did not sign the document. It permits such non-parties, and their representatives in interest, to introduce evidence of a contemporaneous agreement varying the written terms where their interests are affected.

The provision must be read alongside Section 95, which generally restricts oral evidence intended to alter proved documentary terms between the parties. Understanding this distinction is essential for interpreting contracts, documentary evidence and third-party claims.