Appeal No 197 of 1956
Appeal from the judgment and order dated August 61954 of the Bombay High Court in Appeal No 30 of 1954 arising out of the judgment and order dated January 28 1954 of the said High Court in Insolvency No 74 of 1951
1385 M C Setalvad Attorney General for India section N Andley and J B Dadachanji for the appellants
Purshottam Tricumdas and I N Shroff for the respondent
February 20
The following Judgment of the Court was delivered by GAJENDRAGADKAR J
This appeal by special leave arises from the notice of motion taken out by the respondent official assignee under section 55 of the Presidency towns Insolvency Act against the appellants for a declaration that a deed of gift executed by the insolvent Daulatram Hukamchand on May 22 1950 in favour of the appellants was void
It appears that some creditors of Daulatram filed a petition in the High Court of Judicature at Bombay Insolvency Case No 74 of 1951 for an order that the said Daulatram be adjudged insolvent as he had given notice of suspension of payment of the debts on August 2 1951
Daulatram was adjudicated in solvent on August 21 1951 with the result that the estate of the insolvent vested in the respondent under section 17 of the Act
On September 26 1951 the respondent took out the present notice of motion
The impugned deed of gift has been executed by the insolvent in favour of his wife and three sons who are the appellants before us
In reply to the notice of motion appellants I to 3 filed a joint affidavit setting out the facts and circumstances under which the said deed of gift had been executed by the insolvent in their favour
In substance the appellants  case was that though the document purported to be a gift it was really a transaction supported by valuable con sideration and as such it did not fall within the mischief of section 55 of the Act
At the hearing of this notice of motion before Mr Justice Coyajee when the appellants sought to lead evidence in support of this plea the respondent objected and urged that the evidence which the appellants wanted to lead was inadmissible under section 92 of the Indian Evidence Act
The learned Judge however overruled the respondent s objection and allowed the appellants to lead 1386 their evidence
In the end the learned Judge did not accept the appellants  contention and by his judgment delivered on January 28 1954 he granted the declaration claimed by the respondent under section 55 of the Act
Against this judgment and order the appellants preferred an appeal No 30 of 1954 which was heard by Chagla C J and Shah J
The learned Judges took the view that Mr Justice Coyajee had erred in law in allowing oral evidence to be led by the appellants in support of their plea that the transaction evidenced by the deed of gift was in reality a transfer for consideration
The learned Judges held that the gift in question had been executed by the donor in favour of the donees out of natural love and affection and that under section 92 it was not open to the appellants to lead evidence to show that the transaction was supported not by the consideration of natural love and affection but by another kind of valuable consideration 
On this view of the matter the learned Judges did not think it necessary to consider the oral evidence actually led by the appellants and decide whether Mr Justice Coyajee was right or not in rejecting the said evidence on the merits
That is how the appeal preferred by the appellants was dismissed on August 6 1964
On September 23 1954 the application made by the appellants for a certificate was rejected by the High Court at Bombay but special leave was granted to the appellants by this Court on November 3 1954 and that is how the appeal has come before us for final disposal
The principal point which arises in this appeal is whether the appellants were entitled to lead oral evidence with a view to show the real nature of the impugned transaction
In deciding this question it would be necessary to consider the true scope and effect of sections 91 and 92 of the Evidence Act
Chapter VI of the Evidence Act which begins with section 91 deals with the exclusion of oral by documentary evidence
Section 91 provides that  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 1387 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 As evidence is admissible under the provisions hereinbefore contained
 The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original
Section 91 is based on what is sometimes described as the  best evidence rule 
The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents
In a sense the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act
Section 92 excludes the evidence of oral agreements and it applies to cases where the terms of contracts grants or other dispositions of property have been proved by the production of the relevant documents themselves under section 91  in other words  it is after the document has been produced to prove its terms under section 91 that the provisions of section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting varying adding to or subtracting from its terms
The application of this rule is limited to cases as between parties to the instrument or their representatives in interest
There are six provisos to this section with which we are not concerned in the present appeal
It would be noticed that sections 91 and 92 in effect supplement each other
Section 91 would be frustrated without the aid of section 92 and section 92 would be inoperative without the aid of section 91
Since section 92 excludes the admission of oral evidence for the purpose of contradicting varying adding to or subtracting from the terms of the document properly proved 176 1388 under section 91 it may be said that it makes the proof of the document conclusive of its contents
Like section 91 section 92 also can be said to be based oil the best evidence rule
The two sections however differ in some material particulars
Section 91 applies to all documents whether they purport to dispose of rights or not whereas section 92 applies to documents which can be described as dispositive
Section 91 applies to documents which are both bilateral and unilateral unlike section 92 the application of which is confined only to bilateral documents
Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents
Section 92 on the other hand applies only between the parties to the instrument or their representatives in interest
There is no doubt that section 92 does not apply to strangers who are not bound or affected by the terms of the document
Persons other than those who are parties to the document are not precluded from giving extrinsic evidence to contradict vary add to or subtract from the terms of the document
It is only where a question arises about the effect of the document as between the parties or their representatives in interest that the rule enunciated by section 92 about the exclusion of oral agreement can be invoked
This position is made absolutely clear by the provisions of section 99 itself
Section 99 provides that  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
 Though it is only variation which is specifically mentioned in section 99 there can be no doubt that the third party s right to lead evidence which is recognized by section 99 would include a right to lead evidence not only to vary the terms of the document but to contradict the said terms or to add to or subtract from them
If that be the true position before considering the effect of the provisions of section 92 in regard to the appellants  right to lead oral evidence it would be necessary to examine whether section 92 applies at all to the present proceedings between the official assignee who is the respondent and the 1389 donees from the insolvent who are the appellants before us
Does the official assignee represent the insolvent and can he be described as the representative ininterest of the insolvent when he moves the Insolvency Court under section 55 of the Presidency towns Insolvency Act  It is true that under section 17 of the Act on the making of an order of adjudication the property of the insolvent wherever situate vests in the official assignee and becomes divisible among his creditors but the property in respect of which a declaration is claimed by the official assignee under section 55 has already gone out of the estate of the insolvent and it cannot be said to vest in the official assignee as a result of the order of adjudication itself
Besides when the official assignee makes the petition under section 55 he does so obviously and solely for the benefit of the creditors
An insolvent himself has and can possibly have no right to challenge the transfer effected by him
In this respect the official assignee has a higher title than the insolvent and when under section 55 he challenges any transfer made by the insolvent he acts not for the insolvent or on his behalf but in the interest of the whole body of the insolvent s creditors
In theory and on principle as soon as an order of adjudication is made all proceedings in regard to the estate of the insolvent come under the control of the Insolvency Court
It may be said that the official assignee in whom the estate of the insolvent vests is to guard not only the interests of the creditors of the insolvent but also  public morality and the interest which every member of the public has in the observance of commercial morality 1
There is no doubt that it is the Insolvency Court alone which has jurisdiction to annul the insolvent s transactions whether the case is governed by the Presidency towns Insolvency Act or by the Provincial Insolvency Act and so the proceedings taken under section 55 cannot be deemed to be proceedings taken for and on behalf of the insolvent at all
1  The Law of Insolvency in India  By Rt
Sir D F Mulla Kt 2nd Ed p 231
1390 The provisions of section 55 themselves support the same conclusion
Under section 55 any transfer of property not being a transfer made before and in consideration of marriage or made in favour of a purchaser or encumbrancer in good faith and for valuable consideration shall if the transferor is adjudged insolvent within two years of the date of transfer be void against the official assignee
This section like section 53 A of the Provincial Insolvency Act makes the impugned transfers voidable at the instance of the official assignee or the receiver
The transfers in question are not declared void as between the parties themselves they are avoided by the official assignee or the receiver and their avoidance is intended to enure for the benefit of the whole body of the creditors of the insolvent
The relevant sections of the two Insolvency Acts in effect require the Insolvency Courts to set aside the impugned transactions in exercise of the Insolvency Courts  exclusive jurisdiction in that behalf The obvious object of these provisions is to bring back to the insolvent s estate property which has left the estate by the impugned act of the insolvent himself and make the said property available for distribution amongst his creditors
It would therefore be impossible to hold that when the official assignee makes a petition under section 55 of the Act he is acting as a representative ininterest of the insolvent
In this connection it would be relevant to remember that in cases governed by the Presidency towns Insolvency Act the practice in Calcutta and Bombay consistently allows a creditor who has proved his debt to file a petition to set aside the transfer under section 55 of the Act if he shows that the official assignee on being tendered a reasonable indemnity has unreasonably refused to make an application
Similarly under section 54 A of the Provincial Insolvency Act a creditor himself can make the application if the receiver refuses to take any action
Now if an application is made by a creditor for setting aside a voluntary transfer effected by the insolvent there can be no doubt that the creditor is not the representative 1391 in interest of the insolvent and the creditor would obviously not be affected by the provisions of section 92 of the Indian Evidence Act
It would really be anomalous if section 92 were to apply to proceedings instituted by the official assignee under section 55 though the said section cannot and would not apply to similar proceedings instituted by a creditor
Having regard to the object with which section 55 has been enacted the nature of the proceedings taken under it and the nature and effect of the final order which is contemplated under it it is clear that like the creditor who may apply the official assignee also cannot be said to be the representative in interest of the insolvent in these proceedings
If that be the true position section 92 cannot apply to the present proceedings between the respondent and the appellants and so there can be no doubt that the respondent would not be precluded from leading evidence of an oral agreement for the purpose of contradicting varying adding to or subtracting from the terms of the impugned document
The question raised by Shri Purushottam which still remains to be considered is whether the appellants who undoubtedly are the representatives in interest of the insolvent can avoid the application of a 92
In our opinion the answer to this question must be in favour of the appellants
It is urged before us by Shri Purushottam that the scheme of the relevant provisions of Ch
VI of the Indian Evidence Act is inconsistent with the appellants  contention that they can lead oral evidence about the alleged agreement which may tend to change the character of the transaction itself
Shri Purushottam bases his argument mainly on the provisions of section 91 read with section 99 of the Act
He contends that section 91 requires the production and proof of the document itself for the purpose of proving the contents of the document and by necessary implication all evidence about any oral agreement which may affect the terms of the document is excluded by section 91 itself
We are not impressed by this argument
As we have already observed sections 91 and 92 really supplement each other
It is because section 91 by itself would not have excluded 1392 evidence of oral agreements which may tend to vary the terms of the document that section 92 has been enacted and if section 92 does not apply in the present case there is no other section in the Evidence Act which can be said to exclude evidence of the agreement set up by the appellants
What section 91 prohibits is the admission of oral evidence to prove the contents of the document
In the present case the terms of the document are proved by the production of the document itself
Whether or not the said terms could be varied by proof of an oral agreement is a matter which is not covered by section 91 at all
That is the subject matter of section 92 and so if section 92 does not apply there is no reason to exclude evidence about an oral agreement solely on the ground that if believed the said evidence may vary the terms of the transaction
Shri Purushottam also relied upon the provi sions of section 99
His argument is that it is only persons who are not parties to a document or their representatives in interest who are allowed by section 99 to give evidence of facts tending to show a contemporaneous agreement varying the terms of the document
lit other words the effect of section 99 is not only to allow strangers to lead such evidence but to prohibit parties or their representatives in interest from leading such evidence independently of tile provisions of section 92 of the Evidence Act
We do not read section 99 as laying down any such prohibition by necessary implication
As a matter of fact from the terms of section 92 itself it is clear that strangers to the document are outside the scope of section 92  but section 99 has presumably been enacted to clarify the same position
It would be unreasonable we think to hold that section 99 was intended not only to clarify the position with regard to the strangers to the document but also to lay down a rule of exclusion of oral evidence by implication in respect of the parties to the document or their representatives in interest
In our opinion the true position is that if the terms of any transfer reduced to writing are in dispute between a stringer to a document and a party to it or his representative in interest the restriction imposed by section 92 in regard to 1393 the exclusion of evidence of oral agreement is inapplicable and both the stranger to the document arid the party to the document or his representative in interest are at liberty to lead evidence of oral agreement notwithstanding the fact that such evidence if believed may contradict vary add to or subtract from its terms
The rule of exclusion enun ciated by section 92 applies to both parties to the document and is based on the doctrine of mutuality
It would be inequitable and unfair to enforce that rule against a party to a document or his representative in interest in the case of a dispute between the said
party or his representative in interest on the one hand and the stranger on the other
In dealing with this point we may incidentally refer to the relevant statement of the law by Phipson in his treatise on  Evidence  Where the transaction has been reduced into writing merely by agreement of the parties  it is observed  extrinsic evidence to contradict or vary the writing is excluded only in proceedings between such parties or their privies and not in those between strangers or a party and a stranger since strangers cannot be precluded from proving the truth by the ignorance carelessness or fraud of the parties R vs Cheadle 3 B and Ad 833 nor in proceedings between a party and a stranger will the former be estopped since there would be no mutuality  1
The result is that section 92 is wholly inapplicable to the present proceedings and so the appellants are entitled to lead evidence in support of the plea raised by them
It appears that the attention of the learned Judges who heard the appeal in the High Court at Bombay was not drawn to this aspect of the matter
That is why they proceeded to deal with the question about the admissibility of oral evidence led by the appellants on the assumption that section 92 applied
We must accordingly set aside the decree passed by the court of appeal in the High Court at Bombay and send the appeal back to that Court for disposal on the merits in accordance with law
In the circum 1 Phipson on Evidence 9th Ed p 602
1394 stances of this case we think that the fair order as to costs of this appeal would be that the costs should abide the final result in the appeal before the High Court at Bombay
Appeal allowed
Case remanded


Summary:
An omission to administer an oath even to an adult goes only to the credibility of the witness and not his competency so also an omission of the Court or the authori ty examining a child witness formally to record that in its opinion the witness understands the duty of speaking the truth though he does not understand the nature of an oath or affirmation does not affect the admissibility of the evi dence given by that witness
Though it is desirable that judges and magistrates should always record their opinion when a child is to be examined that the child understands the duty of speaking the truth and state why they think so whether a magistrate or judge was really of that opinion can be gathered from the circumstances when there is no formal certificate to that effect on the record
Mohamed Sugal Esa vs The King AIR  R vs Sewa Bhogta FN Samujh vs Emperor 1907 10 OC 337 referred to
Though a woman who has been raped is not an accomplice her evidence has been treated by the Courts on somewhat similar lines and the rule which requires corroboration of such evidence save in exceptional circumstances has now hardened into law
The rule laid down in King vs Baskerville L R with regard to the admissibility of the uneorrobo rated evidence of an accomplice is the law in India also so far as accomplices are concerned and it is not any higher in the case of sexual offences
The only clarification of the rule that is necessary for the purposes of India is where this class of offence is tried by a judge without the aid of a jury
In such cases it is necessary that the judge should give some indication in his judgment that he has had the rule of caution in his mind and should proceed to give reasons for considering it unnecessary to require corrobora tion on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case
There is however no rule of law or 378 practice that there must in every case be corroboration before a conviction can be allowed to stand
The view that though corroboration should ordinarily be required in the case of a grown up woman it is unnecessary in the case of a child of tender years is not correct
The true position is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the judge whether corroboration is unnecessary is a question of fact in every case
Bishram vs Emperor AIR not approved Mohamed Sugal Esa vs The King AIR followed
The nature and the extent of the corroboration that is required when it is not considered safe to dispense with it must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged
It is however clear i that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independ ent evidence in the case apart from the testimony of the complainant or accomplice should itself be sufficient to sustain conviction all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice or the complainant is true and that it is reasonably safe to act upon it ii The inde pendent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect the accused with it iii the corroboration must come from independent sources and thus ordinarily the testi mony of one accomplice would not be sufficient to corrobo rate that of another accompliceiv the corroboration need not be direct evidence that the accused committed the crime it is sufficient if it is merely circumstantial evidence of his connection with the crime
A previous statement of an accomplice or a complainant is admissible as evidence of conduct it is also admissible as corroborg live evidence provided it fulfills the condi tions laid down in see
157 of the Evidence Act
The main test as to whether a previous statement was made at or about the time when the fact took place within the meaning of sec
157 Evidence Act is whether the state ment was made as early as can reasonably be expected in the circumstances of the case and before there was an opportuni ty for tutoring or concoction
Where a person was charged with having committed rape upon a girl eight years of age and the only evidence to corroborate the testimony of the girl connecting the accused with the crime was a statement made by her to her mother some four hours after the incident that she had been raped by the accused Held that in the circumstances of the case the testimony of the mother was admissible as independent corroborative evidence and 379 the girl s previous statement was sufficient corroboration of the girl s testimony for convicting the accused