Section 102 Bharatiya Sakshya Adhiniyam, 2023: Who may give evidence of agreement varying terms of document

Section 102 of Bharatiya Sakshya Adhiniyam, 2023: Who may give evidence of agreement varying terms of document

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Illustrations

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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Fact Sec 2(1)(d) Burden Of Proof Sec 104

Legal Commentary & Landmark Judgments: Section 102

Section 102 establishes who may give evidence of agreement varying terms of document, permitting persons who are not parties to a document, or their representatives in interest, to give evidence of any facts tending to show a contemporaneous agreement varying terms.

Third-Party Exemption: The parol evidence rule (Sections 94 and 95 BSA) binds only the contracting parties; third parties are completely free to lead oral evidence.
Protection Against Sham Deeds: Enables creditors, legal heirs, or tax authorities to prove that a sale deed was actually a sham transaction designed to defraud creditors or evade tax.
Piercing the Contractual Veil: Allows third-party victims of fraudulent transfers under Section 53 of the Transfer of Property Act to dismantle written recitals.

Key Landmark Precedents:

S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1: Affirmed that third parties defrauded by collusive deeds can lead extrinsic evidence to demonstrate the fraudulent nature of the written transaction.
Bai Hira Devi v. Official Assignee of Bombay (AIR 1958 SC 448): The Supreme Court held that Section 99 IEA (Section 102 BSA) enables non-parties to prove that an apparent deed of sale was actually a loan security, exempting strangers from the strict parol evidence bar.

Courtroom Practice & Strategic Litigation Guidance:

When representing an insolvency resolution professional (RP) or creditor challenging an undervalued transfer under the IBC or Section 53 TPA, invoke Section 102: you are not bound by the written recitals of the debtor's deed and can lead full oral evidence to expose the sham.