YADANABON UNIVERSITY

Department of Law

Legal Study on the Value of Documentary Evidence

(GROUP – 7)

Supervised by Daw Khaing Zin Latt

Roll No Name
5L -31 Ma Han Ni Soe San
5L -32 Ma Nang Naunt Nom Hom Kham
5L -33 Ma Myat Thant Khin
5L -34 Mg Hein Htet Zaw
5L -35 Ma Ei Zin Moe
 Legal Study on the Value of Documentary Evidence

Abstract

Research Background

Introduction

Chapter – I Nature of Documentary Evidence

1.1 Definition of Documentary Evidence
1.2 Types of Documentary Evidence
1.2.1 Primary Evidence
1.2.2 Secondary Evidence
1.3 Kinds of Document
1.3.1 Public Document
1.3.2 Private Document

Chapter – II Essential Elements of Producing Documentary Evidence

2.1 Proof of Genuineness of Documents
2.2 Attestation
2.3 Registration
2.4 Stamp

Chapter – III Effectiveness of Documentary Evidence

3.1 Presumptions as to the Truth of Documents
3.2 Exclusion of Oral by Documentary Evidence
3.3 Comparison between Oral and Documentary Evidence

Conclusion
Acknowledgement
Reference List
 i

ABSTRACT

The purpose of this research is to examine how documentary evidence is value and accept in
civil and criminal court cases. The primary objective is to analyze current legal frameworks and court
decision to determine the key factors that influence how documentary evidence is assessed and weighted
by the judicial system. The research methodology employed qualitative method approach. The research
will use a comprehensive review of relevant legal statutes, books and case law relevant to documentary
evidence. Key findings show that the value of documentary evidence depends on factors like the
document's authenticity, reliability, and relevance to the case. Courts closely examine documents when
there are doubts about where they came from. In conclusion, this study highlights the complexity of
evaluating documentary evidence in legal cases. While documents can be powerful evidence, their
impact depends on meeting strict legal standards and addressing any doubts about their credibility and
relevance. The research suggest that education and clear guidelines are needed to help legal professionals
manage and present documentary evidence effectively.
 ii

INTRODUCTION

Documents means all documents produced before the court of law and for the
inspection of documents produced. Evidence refers to information, materials, or facts
presented in a legal proceeding to establish or disprove a fact. Evidence is used to
achieve justice in the cases. When the court examines the case to reveal the truth, the
cause of the case is not revealed without evidence. Evidence plays a very important role
in establishing the truth, as a decision cannot be easily made on the basis of false
allegations. The law of evidence protects the rules and legal principles that govern the
proof of factual matters in both criminal and civil proceedings. There are two types of
Evidence. They are Oral Evidence and Documentary Evidence. Oral Evidence refers to
a statement that a person knows by some means, whether directly heard or seen.
Documents are the best evidence of what they contain and must be produced to speak
for themselves. Documentary Evidence is divided into primary and secondary evidence.
Documentary Evidence is a part of primary evidence which produced before the court
of law in first. In judiciary, the documentary evidence will be preferred and oral
evidence is always inferior to the documentary evidence under some exception.
Documentary Evidence is used to establish the authentic, existence, or relevance of
certain facts or events. It is often employed to support or defense claims, provide
context, or present a comprehensive account of a subject matter. Documentary evidence
is reliable and tangible proof that can be examined by others. Documentary evidence
can take various forms, include letters, contracts, reports, emails,images, conversations,
videos, maps, receipts or tax documents. Whether in a criminal or civil, documentary
evidence plays a crucial role in various fields. Overall, the Court can solve a problem
for truth and justice in accordance with the provisions of the documentary evidence.
We are going to present the research question of how effective Documentary Evidence
is regarding decision-making with objectives.
 iii

Research Background

The basic concept of the Evidence Law is that the best evidence must be
presented, so if you want to present a document, you must present the original of the
documents. How is Documentary Evidence effective in decision making? To achieve
the objectives of this study, a comprehensive review of the relevant legal provisions
related to documentary evidence in the Evidence Act of Myanmar will be conducted.
Additionally, case method of study involving the use of documentary evidence will be
analyzed to provide insights into its practical application. This research will specifically
explore about Documentary Evidence in Evidence Act. Firstly, this research present
nature and types of Documentary Evidence and then express essential element of
producing Documentary Evidence because this element shows the quality of
Documentary Evidence in decision making. Afterall, the research will examine the
effectiveness of Documentary Evidence in legal proceeding. A comprehensive
understanding of how documentary evidence contributes to the decision-making
process in legal proceedings. Identification of best practices for the collection,
presentation, and evaluation of documentary evidence in legal proceedings.
 1

Chapter – I

Nature of Documentary Evidence

Documentary evidence refers to any type of evidence presented in the form of
documents or records. This can include written materials such as contracts, letters,
emails, reports, and official records, as well as digital documents and electronic
communications. In a legal context, documentary evidence is used to support claims,
prove or disprove facts, and establish the authenticity of information. Its value depends
on its relevance, reliability, and the ability to be authenticated, and it plays a crucial
role in both civil and criminal cases.

1.1 Definition of Documentary Evidence

"Document" means any matter expressed or described upon any substance by
means of letter, figures, marks, or by more than one of those means, intended to be
used, or which may be used, for the purpose of reading that matter. In this expression,
electronic record and information are recorded.
illustration-
(1) any map, plan, graph or drawing;
(2) any photograph;
(3) any label, marking or other writing which identifies or describes anything of which
it forms apart, or to which it is attached by any means whatsoever;
(4) any disc, tape, sound-track or other device in which sounds or other data (not being
visual images) are embodied so as to be capable (with or without the aid of some other
equipment) of being reproduced therefrom;
 2

(5) any film (including microfilm), negative, tape, disc or other device in which one or
more visual images are embodied so as to be capable (with or without the aid of some
other equipment) of being reproduced therefrom;
(6) any paper or other material on which there are marks, impressions, figures, letters,
symbols or perforations having a meaning for persons qualified to interpret them and
(7) any record generated, sent received or stored by means of electronic, magnetic,
optical or any other similar technologies in an information system or for transmission
from one information system to any other.
"Evidence" means and includes –
(1) all statements which the Court permits or requires to be made before it by witnesses,
in relation to matters of fact under inquiry; such statements are called oral evidence.
(2) all documents produced for the inspection of the Court; such documents are called
documentary evidence.1
The word "Document" denotes any matter expressed or described upon any
substance by means of letters, figures or marks, or by more than one of those means
intended to be used, or which may be used, as evidence of the matter."
Explanation.1- It is immaterial by what means upon substance the letters, figures or
marks are formed, or whether the evidence is intended for, or may be used in, a Court
of Justice, or not.
illustration-
A writing expression the terms of contract, which may be used as evidence of the
contract, is a document. A cheque upon a banker is a document. A power-of-attorney
is a document. A map or plan, which is intended to be used which or which may be
used as evidence, is a document. A writing containing directions or instructions is a
document.2
Documentary Evidence is any evidence that is, or can be, introduced at a trial
in the form of documents, as distinguished from oral testimony. Documentary evidence
is most widely understood to refer to writings on paper but the term can also apply to
any media by which information can be preserved, such as photographs; a medium that
needs a mechanical device to be viewed, such as a tape recording or film; and a printed
form of digital evidence, such as emails.

1
Setion-3 of the Amendment of the Evidence Act,2015.
2
Section-29 of the Penal Code,1861.
 3

1.2 Types of Documentary Evidence

The contents of documents may be proved either by primary or by secondary
evidence.3 As a General rule of Evidence, a document shall be proved by primary
evidence that is document itself. No oral evidence of content of documents shall be
admissible. But in certain circumstances the secondary evidence of documents
including the oral evidence can be given. For instance, when original is lost or is in
custody or possession of person against whom it is sought to be proved.

1.2.1 Primary Evidence

Primary evidence, also known as original evidence, refers to the evidence that
the law requires to be presented first. It is considered the most reliable and direct form
of evidence and should be submitted to the court before any other types of evidence.
Primary evidence is the most authoritative and superior form of proof available,
providing the highest level of credibility in legal proceedings.
Primary evidence means the document itself produced for the inspection of the
Court.
Explanation 1.- Where a document is executed in several parts, each part is primary
evidence of the document. Where a document 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, 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.
Explanation 3- Notwithstanding anything contained in Explanation 2, if a copy of a
document expressed in section 3 in the form of an electronic record is shown to reflect
that document accurately, then the copy is primary evidence.

3
Section-61 of the Evidence Act,1872.
 4

illustrations-
(a) An electronic record, which has been manifestly or consistently acted on, relied
upon, or used as the information recorded or stored on the computer system, is primary
evidence of that document.
(b) If the electronic record has not been manifestly or consistently acted on, relied upon,
or used as a record of the information in the document, the electronic record may be
treat as secondary evidence of that document.4
When a document is to be used as evidence it must be proved by primary
evidence that is to say, the document itself must be produced and proved to be genuine.
Oral or other documentary evidence of existence, condition, or contents of the original
is secondary evidence which may be used only in certain circumstances.5
Documents must be proved by primary evidence except in the cases hereinafter
mentioned.6
In the case of Maung Maung Thaung v U Hla Gyi and Daw Aye Kyi7, the
appellant sued the respondent to remove from the land, one of the questions is whether
the appellant is the legal owner of the land. At the time of trial, the appellant presented
only a copy of the registered transaction contract, even though he had the original.
Under Section 64 of the Evidence Act, the original contract must be presented.
According to Section 65, it is not mentioned for which the evidence must be submitted
through the secondary evidence and for which the original contract is not submitted. It
is stated that the transaction cannot be considered a legal transaction because the
original transaction contract was not presented as evidence.
The basic concept of the Evidence Law is that the best evidence must be
presented, so if you want to present a document, you must present the original of the
documents. Section 65 shows when the secondary evidence can be presented only in
cases where it is not possible to present it.8

1.2.2 Secondary Evidence

The concept of secondary evidence is vital in the realm of legal proceedings,
providing an alternative to primary evidence when the original documents are

4
Section-62 of the Evidence Act,1872.
5
Dr Maung Maung, the Law of Evidence by the Late Sir Arthur Eggar,3 rd Edition,2014, p-70.
6
Section-64 of the Evidence Act, 1872.
7
1963, M.L.R (C.C) p-208.
8
Thet Htun,U, the Note of Evidence Act,2020.
 5

unavailable or impractical to produce. This framework ensures that justice can still be
served even when original documents cannot be presented in court.
Secondary evidence means and includes-
(1) certified copies given under the provisions hereinafter contained
(2) except of copies referred to Explanation 3 to Section 62, copies made from the
original by electronic, electrochemical, chemical, magnetic, mechanical, optical.
telematic or other technical processes, which in themselves ensure the accuracy of the
copy, and copies compared with such copies
(3) copies made from or compared with the original
(4) counterparts of documents as against the parties who did not execute them
(5) oral accounts of the contents of a document given by some person who has himself
seen it.
illustrations-
(a) A photograph of an original is secondary evidence of its contents, though the two
have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary
evidence of the contents of the letter, if it is shown that the copy made by the copying
machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is
secondary evidence; but the copy not so compared is not secondary evidence of the
original, although the copy from which it was transcribed was compared with the
original.
(d) Neither an oral account of a copy compared with the original, nor an oral account
of a photograph or machine-copy of the original, is secondary evidence of the original.9
Secondary evidence may be given of the existence, condition or contents of a
document in the following cases-
(a) when the original is shown or appears to be in the possession or power-
of the person against whom the document is sought to be proved, or of any person out
of reach of, or not subject to, the process of the Court, or of any person legally bound
to produce it and when, after the notice mentioned in section 66, such person does not
produce it;

9
Section-63 of the Amendment of the Evidence Act,2015.
 6

(b) when the existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved or by his representative in
interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of
its contents cannot, for any other reason not arising from his own default or neglect,
produce it in reasonable time;
(d) when the original is of such a nature as not to be easily moveable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act,
or by any other law in force in the Union of Myanmar, to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot
conveniently be examined in Court, and the fact to be proved is the general result of the
whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is
admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary
evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any
person who has examined them, and who is skilled in the examination of such
documents.10
Sections 63 and 65 outline the types and admissibility of secondary evidence in
legal proceedings, offering a comprehensive approach to handling situations where
original documents are unavailable. This legal framework balances the need for reliable
evidence with practical considerations, enabling courts to make informed decisions
based on accurate and trustworthy secondary evidence.
In the case of Daw Saw Shin and two others vs Kwar Kee Yar Kook and
thirty-six others11,although it was purchased through a registration contract for a
common association, no evidence was presented under Section - 91 of the Evidence
Act or the secondary evidence allowed under Section - 63 of the Act. He said that the
contract was lost. Only if you can prove that the contract was lost, you have the right to

10
Section-65 of the Evidence Act,1872.
11
1963, M.L.R Supreme Court, pg-765.
 7

present evidence under Section 63 of the Evidence Act. Since there is no evidence
presented, it may be decided that there is no right to present evidence under that section.
Even if secondary evidence could be presented according to Section 63, it is not a valid
evidence. According to Section 63 (5) of the Evidence Act, the person who reads the
contract himself must testify orally as long as he remembers what he read.
For secondary evidence to be accepted as evidence, the original document must
be properly authenticated. If the original document is not properly authenticated, the
secondary evidence cannot be submitted. For example, if the original document is not
registered or does not have an official stamp, and it is not properly authenticated, the
secondary evidence for that document will not be accepted. To object to the submission
of secondary evidence, the objection must be made in the original court. Only then the
submitter can present the original document or provide evidence explaining why
secondary testimony is being submitted. Therefore, if an objection is not made in the
original court, it cannot be raised in the appellate court.12
Secondary evidence of the contents of the documents referred to in section 65,
clause (a), shall not be given unless the party proposing to give such secondary evidence
has previously given to the party in whose possession or power the document is, or to
his advocate or pleader, such notice to produce it as is prescribed by law; and if no
notice is prescribed by law, then such notice as the Court considers reasonable under
the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence
admissible in any of the following cases, or in any other case in which the Court thinks
fit to dispense with it:
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be
required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the
original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;

12
Phoe Thar, U, Definition of Law of Evidence Act, 8th editions, 2020, p-162.
 8

(6) when the person in possession of the document is out of reach of, or not subject to,
the process of the Court.13
In the case of U Zaw Win Mon v the Union of Myanmar and two others14,the
applicant submitted that the original document was in the possession of the adverse
party, and according to Section 66 of the Evidence Act, there was also the fact that a
notice had been sent to the adverse party, so it was decided that it should be accepted
as secondary evidence.
The purpose of sending a notice is to obtain the best evidence, if there is any of
the primary evidence exists. The cases where there is no need to express notice are also
mentioned as an exception in this section.15

1.3 Kinds of Document

There are two kinds of Documents. They are-
(1) Public Document and
(2) Private Document.

1.3.1 Public Document

The following documents are public documents-
(1) documents forming the Acts or records of the Acts-
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, whether of the Union of
Myanmar or of a foreign country;
(2) public records kept in the Union of Myanmar of private documents.16
Every public officer having the custody of a public document, which any person
has a right to inspect, shall give that person on demand a copy of it on payment of the
legal fees therefor, together with a certificate written at the foot of such copy that it is
a true copy of such document or part thereof, as the case may be, and such certificate
shall be dated and subscribed by such officer with his name and his official title, and

13
Section-66 of the Evidence Act,1872.
14
2017, M.L.R p -32.
15
Win Swe Oo, U, Note of Law of Evidence, 2020, p-100.
16
Section-74 of the Evidence Act,1872.
 9

shall be sealed, whenever such officer is authorized by law to make use of a seal, and
such copies so certified shall be called certified copies.
Explanation- Any officer who, by the ordinary course of official duty, is authorized to
deliver such copies, shall be deemed to have the custody of such documents within the
meaning of this section.17
In the case Ma Pan Si (or) Daw Yin Yin Vs. Ma Hla Yin and six others18,the
person who signed the certified copy as a true copy did not put a date on it, but that
does not mean that it is not a true copy. Section 76 of the Evidence Act states that the
prescribed form need not be followed in every case.
Such certified copies may be produced in proof of the contents of the public
documents or parts of the public documents of which they purport to be copies.
The following public documents may be proved as follows-
(1) Acts, orders or notifications of the Government-
by the records of the departments, certified by the heads of those departments
respectively, or by any document purporting to be printed by order of the President of
the Union:
(2) the proceedings of the Legislatures-
by the journals of those bodies respectively, or by published Acts or abstracts,
or by copies purporting to be printed by order of the President of the Union;
(3) proclamations, orders or regulations issued by his Britannic Majesty or by the Privy
Council or by any department of His Britannic Majesty’s Government-
by copies or extracts contained in the London Gazette, or purporting to be
printed by the official Printer;
(4) the Acts of the Executive or the proceedings of the Legislature of a foreign country-
by journals published by their authority, or commonly received in that country
as such, or by a copy certified under the seal of the country or sovereign, or by a
recognition thereof in some enactment in force in the Union of Myanmar;
(5) the proceedings of a municipal body in the Union of Myanmar-
by a copy of such proceedings, certified by the legal keeper thereof, or by a
printed book purporting to be published by the authority of such body;
(6) public documents of any other class in a foreign country-

17
Section-76 of the Evidence Act,1872.
18
1963, M.L.R, Supreme Court, p -800.
 10

by the original, or by a copy certified by the legal keeper thereof, with a

certificate under the seal of a notary public, or of a British Consul or [diplomatic agent
or the diplomatic agent for the Union], that the copy is duly certified by the officer
having the legal custody of the original, and upon proof of the character of the document
according to the law of the foreign country.19
When private documents are registered, they must be input in the registration
books at the registry office. Such written documents shall be the relevant documents
under this section. Therefore, a true copy of these documents can be submitted as
evidence under Sections 76 and 77 of this law.20

1.3.2 Private Document

All other documents are private.21
Private documents, such as contracts, leases, mortgages, and deeds, are not
public documents. These documents should typically be presented as original evidence.
However, secondary evidence is permissible under the provisions of Section 65.22
Categorizing documentary evidence into primary and secondary, as well as
private and public, helps in understanding its use and reliability in legal proceedings.
Primary evidence is preferred for its direct connection to the facts. Secondary evidence,
while useful, needs careful scrutiny to ensure it is accurate. The distinction between
private and public documents highlights the different levels of credibility and handling
required in court. Private documents often need extra proof of authenticity, while public
documents are generally trusted due to their official nature. In conclusion, documentary
evidence is fundamental in the judicial process, providing a basis for establishing facts
and supporting legal arguments. Proper categorization and rules for admissibility
ensure that the evidence presented is credible and relevant, maintaining the truth of the
legal system.

19
Section-77 of the Evidence Act,1872.
20
Phoe Thar, U, Definition of Law of Evidence, 8th edition,2020, p-174.
21
Section-75 of the Evidence Act,1872.
22
Phoe Thar, U, Definition of Law of Evidence, Eighth edition,2020 pg-174.
 11

Chapter – II

Essential Elements of Producing Documentary Evidence

When producing documentary evidence, ensuring its genuineness and
adherence to legal requirements is crucial. These are essential elements related to
proving the genuineness of documents, including attestation, registration, and
stamping.
2.1 Proof of Genuineness of Documents
There is always the question when the document is used in evidence - Is it
genuine? The evidence upon this point is dealt with in Sec 67-73 of the Evidence Act.
The nature of the evidence will depend to a large extent on the nature of the document.
If it is a letter, it must be shown who wrote it or at any rate who signed it, for a signature
to a document turns the whole document into a statement by the person who signs it. If
it is an agreement it must be shown who executed it.23
If a document is alleged to be signed or to have been written wholly or in part
by any person, the signature or the handwriting of so much of the document as is alleged
to be in that person’s handwriting must be proved to be in his handwriting.24
Any existing law requires a signature, or provides for certain consequences if a
document or a record is not signed, that requirement is satisfied in relation to an
electronic record if-
(a) a method is used to identify the person and to indicate that person’s intention in
respect of the information contained in the electronic record; and
(b) the method is used either-
(i) as reliable as appropriate for the purpose for which the electronic record was
generated or communicated, in the light of all the circumstances, including any relevant
agreement; or

23
Ratanlal and Dhirajlal, Law of Evidence, Twelfth edition, 1953, p-148.
24
Section-67 of the Evidence Act, 1872.
 12

(ii) proven in fact to have fulfilled the functions described in sub-section (a), by itself
or together with further evidence.25
In the case of U Thar Kyan vs. Daw Kyaing and two others26, it was held that
the definitions given in Section 67 of The Evidence Act are ways and means to prove
that a certain person has written it. In order to do that, it will be possible only after these
documents have been accepted as evidences. With the fact that the Court has accepted
the documents, they cannot automatically become evidences. Only after the poof has
been conducted according to Section 67 of The Evidence Act, they will become
evidences.
Generally, a signature may be in any form which indicates the identity of the
person and his intention to associate himself with the document. But in some cases, the
special enactment relating to the matter requires a special form of execution.27
An electronic record is said to be a record recorded on something by any
technology. The electronic record, which is the signature of such a document, is
relevant and genuine and can be used as evidence in court even if person does not have
a signature.28
If a document is required by law to be attested, it shall not be used as evidence
until one attesting witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject to the process of the Court
and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a will, which has been registered unless its
execution by the person by whom it purports to have been executed is specifically
denied. 29
If no such attesting witness can be found, or if the document purports to have
been executed in the United Kingdom, it must be proved that the attestation of one
attesting witness at least is in his handwriting, and that the signature of the person
executing the document is in the handwriting of that person.30

25
Secttion-67(A) of the Amendment of the Evidence Act, 2015.
26
1981, M.L.R, p-94.
27
Dr. Maung Maung, the Law of Evidence by Sir Arthur Eggar, 3 rd edition,2014, p-86.
28
Thet Htun, U, the Note of Evidence Act, 2020, p-173.
29
Section-68 of the Evidence Act, 1872.
30
Section-69, Ibid.
 13

An attesting witness if available should be called in evidence, If the attesting

witness is dead or is living out of the jurisdiction of the Court or cannot be found after
diligent search, two things must be proved.
(1) the signature of one attesting witness and
(2) the signature of the executant.31
The admission of a party to an attested document of its execution by himself
shall be sufficient proof of its execution as against him, though it be a document
required by law to be attested.32
In the case of Daw Phwar Thet vs U Soe Aung33, the contract is valid only if
at least two witnesses sign it. Therefore, it is decided that if a contract is not signed by
the witnesses in accordance with the law, it cannot be a valid documentary evidence
just by admitting that the witness has signed the contract himself.
An admission by not contesting the fact in the pleadings or at the hearing is
sufficient, provided that there is no indication that the attestation was improper. But the
waiver of strict proof will not make a document valid if it is by law invalid for want of
attestation or registration.34
If the attesting witness denies or does not recollect the execution of the
document, its execution may be proved by other evidence.35
According to this section, if the witness is alive but denies signing the contract
or says he does not remember, he may testify about the signing in any other way. If
only one witness denies the contract, it is not possible to present evidence by other
means. Although there are other witnesses who can be summoned, they will still be
summoned and examined. Only if all the witnesses deny it, they can testify in another
way.36
An attested document not required by law to be attested may be proved as if it
was unattested.37
In order to ascertain whether a signature, writing or seal is that of the person by
whom it purports to have been written or made, any signature, writing or seal admitted
or proved to the satisfaction of the Court to have been written or made by that person

31
Phoe Thar, U, Definition of Law of Evidence,8th edition, 2020, p-169.
32
Section- 70 of the Evidence Act, 1872.
33
1995, M.L.R, Supreme Court, p-84.
34
Dr. Maung Maung, the Law of Evidence by Sir Arthur Eggar, 3rd edition, 2014.
35
Section- 71 of the Evidence Act, 1872.
36
Win Swe Oo, U, Note of Law of Evidence, 2020.
37
Section- 72 of the Evidence Act, 1872.
 14

may be compared with the one which is to be proved, although that signature, writing
or seal has not been produced or proved for any other purpose. The Court may direct
any person present in Court to write any words or figures for the purpose of enabling
the Court to compare the words or figures so written with any words or figures alleged
to have been written by such person. This section applies also, with any necessary
modifications, to finger-impressions.38

2.2 Attestation
“Attestation” , in relation to an instrument, means and shall be deemed always
to have meant attested by two or more witnesses each of whom has seen the executant
sign or affix his mark to the instrument or has seen some other person sign the
instrument in the presence and by the direction of the executant, or has received from
the executant a personal acknowledgment of his signature or mark, or of the signature
of such other person, and each of whom has signed the instrument in the presence of
the executant; but it shall not be necessary that more than one of such witnesses shall
have been present at the same time, and no particular from of attestation shall be
necessary.39
The will must be signed by at least two witnesses. If an immovable property
whose value exceeds the value is mortgaged, or According to Section 123, if the
immovable property, regardless of its value, is voluntarily given, it must be done by a
registered deed and signed by at least two witnesses. Similarly, approved on (1) 1939,
According to the Adoption Act (approved on April 1, 1941), if a contract of adoption
is concluded, at least two witnesses must sign and register it.40
In the case of U Soe Aung v Daw Khin Hla Hla and two others41,the Court
held that in spite the fact that the witnesses sign the deed, as there are no signatures so
as to be in line with the definitions in Section 3 of the Transfer of Property Act.
Although the executer himself acknowledges that he himself sign the deed, his
acknowledgement will not be in the scope of the definitions given in Section 70 of The
Evidence Act.

38
Section- 73 of the Evidence Act, 1872.
39
Section-3 of the Transfer of Property Act,1882.
40
Phoe Thar, U, Definition of Law of Evidence, Eighth edition,2020, p-166.
41
2000, M.L.R, p-73.
 15

2.3 Registration
The following documents are determined as the documents which require
compulsory registration:
(a) instruments of gift of immoveable property;
(b) instruments of sale of immoveable property which is valued at one hundred
thousand kyats and upwards, instruments, other than wills which are executed for the
validity of declaration, assignment, limitation, extinction or abolishment of any right,
title or interest to or in such immoveable property, and judgments, decrees or orders of
the court on the ownership related to such instruments;
(c) mortgage instruments and instruments that extinguish the mortgage signed by the
mortgagee and at least two witnesses except a mortgage by deposit of title deeds to
property which is valued at one hundred thousand kyats and upwards;
(d) leases of immoveable property from year to year, or for any term exceeding one
year, or reserving a yearly rent;
(e) instruments by which a whole or part of immoveable property or interest in such
immoveable property is mortgaged or given or assigned in any manner by a company
or association to the trustee;
(f) instruments of kittima adoption; and
(g) other instruments prescribed by the Union Government from time to time.42
All documents presented to Registration of Deeds Offices for registration shall:
(a) be written in Myanmar language;
(b) be attached notarized translation of Myanmar language if they are not written in
Myanmar Language;
(c) be written completely and signed by the parties; and
(d) be attested with initials or signatures by the parties in the places of alteration,
addition, blank or erasure to or in the documents if a document in which any alteration,
addition, blank or erasure appears.43
All documents which have been duly registered;
(a) shall come into effect from the date of execution; and

42
Sec-16 of the Registration of Deeds Law, 2018.
43
Section-18 of the Registration of Deeds Law, 2018
 16

(b) shall take effect against any oral agreement or declaration relating to moveable or
immoveable property where such oral agreement or declaration are contrary to their
terms and conditions;
(c) shall not apply to any property that has been delivered according to oral agreement
or declaration that are contrary to the terms and conditions of the documents although
they take effect on such agreement or declaration under sub-section (b).44
If documents required compulsory registration under section 16 are not registered, such
documents:
(a) shall have no effect on the transfer or lease of immoveable property;
(b) shall not be official evidence for Kittima adoption;
(c) shall not be official evidence for the property mentioned in the document or for the
power conferred under the document.45
If documents mentioned in sub-sections (a), (b), (c), (d) and (e) of section 16
and sub-sections (a), (b) and (c) of section 17 are registered, commitments and
conditions with respect to property mentioned in those documents shall be valid.46
In the case of Daw Tote Tote and four others v Daw Sein Sein Win (or) Daw
Hla Kyi and three others47, instrument of gift of immovable property, it is apparent
that it is a contract given by the law as it is signed by the giver, receiver, and (3)
witnesses, as well as registered.
Section 49 of the Registration Act declares that no document required by s. 17
to be registered shall affect any immovable property comprised therein or confer any
power to adopt or be received as evidence of any transaction affecting such property of
conferring such power unless it has been registered.48
Where a document is required by law to be registered but is not duly registered,
it is void for its special purpose. And the transaction is null and void where registration
was essential to its validity and is defective.

2.1.3 Stamp
No instrument chargeable with duty shall be admitted in evidence for any
purpose by any person having by law or consent of parties authority to receive evidence,

44
Section-47, Ibid.
45
Section-48, Ibid.
46
Section-49, Ibid.
47
2003, M.L.R, Supreme Court, p-115.
48
Dr Maung Maung, the Law of Evidence by Sir Arthur Eggar, 3 rd edition, 2014, p-91.
 17

or shall be acted upon, registered or authenticated by any such person or by any public
officer, unless such instrument is duly stamped:
Provided that-
(a) any such instrument not being an instrument chargeable with a duty of one anna or
half an anna only, or a bill of exchange or promissory note, shall, subject to all just
exceptions, be admitted in evidence on payment of the duty with which the same is
chargeable, or, in the case of an instrument insufficiently stamped, of the amount
required to make up such duty, together with a penalty of five rupees, or, when ten
times the amount of the proper duty or deficient portion thereof exceeds five rupees, of
a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded has
given an unstamped receipt and such receipt, if stamped, would be admissible in
evidence against him, then such receipt shall be admitted in evidence against him on
payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is affected by correspondence consisting
of two or more letters and any one of the letters bears the proper stamp, the contract or
agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence
in any proceeding in a criminal Court, other than a proceeding under Chapter XII or
Chapter XXXVI of the Code of Criminal Procedure;
(e) nothing herein contained shall prevent the admission of any instrument in any Court
when such instrument has been executed by or on behalf of the Government, or where
it bears the certificate of the Collector as provided by section 32 or any other provision
of this Act.49
Under Sec- 36 where an instrument has been admitted in evidence, such
admission shall not, except as provided in section 61of the Evidence Act, be called in
question at any stage of the same suit or proceeding on the ground that the instrument
has not been duly stamped.
In Chapter 2, we explored the essential elements necessary for producing
documentary evidence, focusing on proof of genuineness, attestation, registration, and
stamping. Each element plays a critical role in ensuring the authenticity and legal
acceptability of documents in various contexts. In summary, the production of

49
Section-35 of the Myanmar Stamp Act, 1899.
 18

documentary evidence requires proof of genuineness, attestation, registration, and

stamping. These elements work together to ensure that documents are authentic,
credible, and legally recognized, thereby upholding the integrity of legal processes.
 19

Chapter – III

Effectiveness of Documentary Evidence

The effectiveness of documentary evidence relies on its adherence to legal

standards, its ability to support claims, its clarity, and the manner in which it is handled.

3.1 Presumption as to the Truth of Documents

The Court shall presume every document purporting to be a certificate, certified
copy or other document, which is by law declared to be admissible as evidence of any
particular fact and which purports to be duly certified by any officer in the Union of
Myanmar, [or by any officer in any other part of the Union of Myanmar who is duly
authorized thereto by the President of the Union], to be genuine:
Provided that such document is substantially in the form and purports to be executed in
the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports to
be signed or certified held, when he signed it, the official character which he claims in
such paper.(1)
Where a document, purporting to be a certified copy of a record of evidence, is
produced, it must be presumed, under this section, to be an accurate copy of the record
of evidence. This presumption is liable to be rebutted. This section imperatively directs
the Court to raise a presumption. (Rathalan p-160)

(1)
Sec-79 of the Evidence Act,1872
 20

In Daw Myint Myint Than (Power of Attorney U Win Myint) v. U Bo

Thaung and 2 others (2017, MLR, Supreme Court 212), according to the provisions
of the Evidence Act, the court judgment, which is a public document, decree, if the
orders are to be submitted as evidence, certified copies must be submitted. The court
shall either the documents to be deemed genuine or the documents must be accepted
and considered by the Evidence Act. Under such an evidence act, the court will not
have the right to accept and decide on photocopied documents that are not admissible.
Section 79 of the Evidence Act provides that certified copies shall be deemed authentic
by the court. Therefore, the judgment of the court, decree, it has been decided that only
after reviewing and deciding on the certified copies of the orders, there will be
conformity with the law.
Whenever any document is produced before any Court, purporting to be a record
or memorandum of the evidence, or of any part of the evidence, given by a witness in
a judicial proceeding or before any officer authorized by law to take such evidence, or
to be a statement or confession by any prisoner or accused person, taken in accordance
with law, and purporting to be signed by any Judge or Magistrate, or by any such officer
as aforesaid, the Court shall presume that the document is genuine; that any statements
as to the circumstances under which it was taken, purporting to be made by the person
signing it, are true, and that such evidence, statement or confession was duly taken.(Sec-
80)
The presumptions to be raised under this section are consider ably wider than
those under s. 79. They embrace not only the genuineness of the document, but that it
was duly taken and given under the circumstances recorded in the document. The
presumptions under this section are not conclusive; they may be rebutted. (ratanlal p-
160)
Ma Nang Wunna v. Union of Myanmar (1970, M.L.R, Supreme Court 70),
it is stated that if a dying declaration is given in front of a judge in power, that dying
accusation can be used as evidence without having to examine the judge according to
Section 80 of the Evidence Law. However, regarding the dying accusation made in
front of a civilian, it is stated in the above case that the civilian can be used as a witness
only if that civilian is summoned for examination. Either by a judge who does not have
the right to take notes or by a civilian, he must be called as a witness and examined.
Otherwise, it is stated that the deposition will not be admissible.
-Magistrate
 21

The Court shall presume the genuineness of every document purporting to be

the London Gazette or the Gazette of the Union of Myanmar, or the Government
Gazette of any colony, dependency or possession of the British Government, or to be a
newspaper or journal, or to be a copy of a private Act of [Parliament of the United
Kingdom of Great Britain and Ireland] printed by the [official Printer], and of every
document purporting to be a document directed by any law to be kept by any person, if
such document is kept substantially in the form required by law and is produced from
proper custody.(Sec-81)
Government Gazettes or newspapers or journals or copies of private Acts of
Parliament printed by the King's Printer are prima facie proof of their genuineness.
(ratanlal p-162)
When any document is produced before any Court, purporting to be a document
which, by the law in force for the time being in England and Ireland, would be
admissible in proof of any particular in any Court of Justice in England or Ireland,
without proof of the seal or stamp or signature authenticating it, or of the judicial or
official character claimed by the person by whom it purports to be signed, the Court
shall presume that such seal, stamp or signature is genuine, and that the person signing
it held, at the time when he signed it, the judicial or official character which he claims,
and the document shall be admissible for the same purpose for which it would be
admissible in England or Ireland. (Sec- 82)
The Court shall presume that maps or plans purporting to be made by the
authority of Government were so made, and are accurate; but maps or plans made for
the purposes of any cause must be proved to be accurate. (Sec- 83)
According to this Section, government maps are accurate only when the
dimensions are correct. It does not apply to other facts on the map and should not be
considered correct. Therefore, it should not be assumed that the owner is the owner of
the map. This section must be read together with Section 36. (U Phoe Thar p- 184)
In the case of U Ba Shin v. Daw Hnin Hlaing (1961, M.L.R, Supreme Court
67), to say that government maps are accurate is only to assume that the drawings and
measurements on the map are correctly stated. It is indicated that boundary
measurements on land are not to be assumed to be true or false.
The Court shall presume the genuineness of every book purporting to be printed
or published under the authority of the Government of any country, and to contain any
 22

of the laws of that country, and of every book purporting to contain reports of decisions
of the Courts of such country. (Sec-84)
The Court shall presume that every document purporting to be a power-of-
attorney, and to have been executed before, and authenticated by, a notary public, or
any Court, Judge, Magistrate, British Consul or Vice-Consul, or representative of His
Britannic Majesty or the Union of Myanmar, was so executed and authenticated.
(sec-85)
In the case of Daw Sein Mya v. Daw Pyaww (1962, M.L.R, Supreme Court
67), according to Section 85 of the Evidence Law, a document with the effect of a power
of attorney is signed by the appointed representative in front of a person under that
section, and the office must only recognize the signature of that person. However,
Section 85 of the Evidence Law, is only a method used to prove that the appointor
signed the power of attorney. Concerning that fact, it has been decided that other ways
of presenting evidence cannot be considered to be prohibited.
Seasons Overseas Pte., Ltd and 9 others v. Great Light Co., Ltd and 7
others (Supreme Court 43, 2018), whether power of attorney made in a foreign
country or any other document, is signed by a notary public in the relevant country to
confirm that it was made in front of him, and the notary public who signed the power
of attorney is a notary public appointed by the law of the country concerned, and the
Ministry of Foreign Affairs or an Embassy Officer or Consul of that country further
signs and confirms that power of attorney will be recognized by the Myanmar court
under Section 85 of the Evidence Act. If it is another document, it can only be proved
under Section 78 Subsection 6 of the Evidence Act if it is signed by a notary public and
verified and signed by the relevant Ministry of Foreign Affairs or Embassy Officer or
Consul. The meeting report of the No. 7 plaintiff company presented by the plaintiffs
has been certified by the Dubai Airport Authority of the United Arab Emirates, but the
notary public of that country has not signed the certification as required by Section 85
of the Evidence Act, so the court cannot consider it as true under Section 85 of the
Evidence Act. If the meeting reports are not a power of attorney, it has been decided
that the notary public has no right to present evidence in court as it is not signed by the
notary public according to section 78 sub-section 6 of the Evidence Act.
The Court may presume that any document purporting to be a certified copy of
any judicial record of any country not forming part of [His Britannic Majesty’s
dominions or the Union of Myanmar] is genuine and accurate, if the document purports
 23

to be certified in any manner which is certified by any representative of [His Britannic

Majesty or the Union of Myanmar] in or for such country to be the manner commonly
in use in that country for the certification of copies of judicial records.( Sec-86)
The Court may presume that any book to which it may refer for information on
matters of public or general interest, and that any published map or chart, the statements
of which are relevant facts and which is produced for its inspection, was written and
published by the person and at the time and place, by whom or at which it purports to
have been written or published. (sec-87)
This section applies to private maps and privately published books. In section-
83, maps to be considered correct means maps published by the government. (U Win
Swe Oo p-118)
The Court may presume that a message, forwarded form a telegraph office to
the person to whom such message purports to be addressed, corresponds with a message
delivered for transmission at the office from which the message purports to be sent; but
the Court shall not make any presumption as to the person by whom such message was
delivered for transmission. (Sec -88)
The Court shall presume that every document, called for and not produced after
notice to produce, was attested, stamped and executed in the manner required by
law.(Sec-89)
When a document is called for and not produced after proper notice so to do,
the Court shall presume that it was duly attested, stamped and executed in the manner
prescribed by law. ( U Win Swe Oo p- 120)
Where any document, purporting or proved to be thirty years old, is produced
from any custody which the Court in the particular case considers proper, the Court
may presume that the signature and every other part of such document, which purports
to be in the handwriting of any particular person, is in that person’s handwriting, and,
in the case of a document executed or attested, that it was duly executed and attested
by the persons by whom it purports to be executed and attested.
Explanation.- Documents are said to be in proper custody if they are in the place in
which, and under the care of the person with whom, they would naturally be; but no
custody is improper if it is proved to have had a legitimate origin, or if the circumstances
of the particular case are such as to render such an origin probable.
This explanation applies also to section 81.
Illustrations.
 24

(a) A has been in possession of landed property for a long time. He produces from his
custody deeds relating to the land, showing his title to it. The custody is proper.
(b) A produces deeds relating to landed property of which he is the mortgagee. The
mortgagor is in possession. The custody is proper.
(c) A, a connection of B, produces deeds relating to lands in B’s possession which were
deposited with him by B for safe custody. The custody is proper. (Sec-90)
When a document is or purports to be more than thirty years old, if it be
produced from what the Court considers to be proper custody, it may be presumed that
the signature and every other part of such document, which purports to be in the
handwriting, and that it was duly executed and attested by the person by whom it
purports to be executed and attested. (U Phoe Thar p-190)
The object of this Section is not to make it too difficult for persons relying upon
ancient documents to utilize those documents in proving their cases. It is intended to do
away with the insuperable difficulty of proving the handwriting, execution and
attestation of documents in the ordinary way after the lapse of many years. (ratanal p-
166)

3.2 Exclusion of Oral by Documentary Evidence

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, 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 evidence is admissible under the provisions hereinbefore contained.
Exception 1.- When a public officer is required by law to be appointed in writing, and
when it is shown that any particular person has acted as such officer, the writing by
which he is appointed need not be proved.
Exception 2.- Wills may be proved by any probate thereof having effect in the Union
of Myanmar.
Explanation 1.- This section applies equally to cases in which the contracts, grants or
dispositions of property referred to are contained in one document and to cases in which
they are contained in more documents than one.
Explanation 2.- Where there are more originals than one, one original only need be
proved.
 25

Explanation 3 - The statement, in any document whatever, of a fact other than the facts
referred to in this section, shall not preclude the admission of oral evidence as to the
same fact.
Illustrations
(a) If a contract be contained in several letters, all the letters in which it is contained
must be proved.
(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
(d) A contracts, in writing, with B, for the delivery of indigo upon certain terms. The
contract mentions the fact that B had paid A the price of other indigo contracted for
verbally on another occasion.
Oral evidence is offered that no payment was made for the other indigo. The evidence
is admissible.
(e) A gives B a receipt for money paid by B.
Oral evidence is offered of the payment. The evidence is admissible. (sec-91)
In the case of Maung Tun Min and Ma Tin Nyunt (1948, M.L.R, 509), the
plaintiff said that his grandmother mortgaged the land to the plaintiff. A mortgage is
not a registered mortgage. The collateral has been current with the litigant for about 15
years. When the plaintiff presented oral evidence that he had a mortgage, he was
objected to as a witness. It has been decided that although the mortgage is not illegal,
oral evidence may be presented about the mortgage to show the reason of the current
possession.
The plaintiff submitted the pledge as evidence that the appellant had secured the
loan. Since the case is not based on that contract, the pledge can be accepted as proof
of the loan guarantee. It is clear that the appellant's liability as collateral for the loan, as
shown by the claim preceding the contract, is not restricted by the prohibition under
Section 91 of the Evidence Act. U Maung Swe v U Tu Pho (1966, M.L.R, Supreme
Court 1330)
- Daw Amar eng case
When the terms of any such contract, grant or other disposition of property, or
any matter required by law to be reduced to the form of a document, have been proved
according to the last section, no evidence of any oral agreement or statement shall be
admitted, as between the parties to any such instrument or their representatives in
 26

interest, for the purpose of contradicting, varying, adding to, or subtracting from, its
terms:
Proviso (1)- Any fact may be proved which would invalidate any document, or which
would entitle any person to any decree or order relating thereto; such as fraud,
intimidation, illegality, want of due execution, want of capacity in any contracting
party, want or failure of consideration, or mistake in fact or law.
Proviso (2)- The existence of any separate oral agreement as to any matter on which a
document is silent, and which is not inconsistent with its terms, may be proved. In
considering whether or not this proviso applies, the Court shall have regard to the
degree of formality of the document.
Proviso (3)- The existence of any separate oral agreement, constituting a condition
precedent to the attaching of any obligation under any such contract, grant or
disposition of property, may be proved.
Proviso (4)- The existence of any distinct subsequent oral agreement to rescind or
modify any such contract, grant or disposition of property may be proved, except in
cases in which such contract, grant or disposition of property is by law required to be
in writing, or has been registered according to the law in force for the time being as to
the registration of documents.
Proviso (5)- Any usage or custom by which incidents not expressly mentioned in any
contract are usually annexed to contracts of that description may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent
with, the express terms of the contract.
Proviso (6)- Any fact may be proved which shows in what manner the language of a
document is related to existing facts.
Illustrations.
(a) A policy of insurance is effected on goods “in ships from Yangon to London.” The
goods are shipped in a particular ship which is lost. The fact that particular ship was
orally excepted form the policy cannot be proved.
(b) A agrees absolutely in writing to pay B Ks. 1,000 on the first March, 1940. The fact
that at the same time an oral agreement was made that the money should not be paid till
the thirty-first March cannot be proved.
(c) An estate called “the Kalaw tea estate” is sold by a deed which contains a map of
the property sold. The fact that land not included in the map had always been regarded
as part of the estate and was meant to pass by the deed cannot be proved.
 27

(d) A enters into a written contract with B to work certain mines, the property of B,
upon certain terms. A was induced to do so by a misrepresentation of B’s as to their
value. This fact may be proved.
(e) A institutes a suit against B for the specific performance of a contract, and also prays
that the contract may be reformed as to one of its provisions, as that provision was
inserted in it by mistake. A may prove that such a mistake was made as would by law
entitle him to have the contract reformed.
(f) A orders goods of B by a letter in which nothing is said as to the time of payment,
and accepts the goods on delivery. B sues A for the price. A may show that the goods
were supplied on credit for a term still unexpired.
(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words:
“Bought of A a horse for Ks. 500.” B may prove the verbal warranty.
(h) A hires lodgings of B, and gives a card on which is written “Rooms, Ks. 200 a
month.” A may prove a verbal agreement that these terms were to include partial board.
A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by a
lawyer, is made between them. It is silent on the subject of board. A may not prove that
board was included in the term verbally.
(i) A applies to B for a debt due to A by sending a receipt for the money.
B keeps the receipt and does not send the money. In a suit for the amount A may prove
this.
(j) A and B make a contract in writing to take effect upon the happening of a certain
contingency. The writing is left with B, who sues A upon it, A may show the
circumstances under which it was delivered. (Sec -92)
The prohibition is framed with reference only to "oral" agreements or
statements; but for obvious reasons the rule applies also to written agreement or
statements extraneous to the document. The formal nature of the document implies that
its terms are precise and inclusive of every material item, consequently there is no room
for extraneous evidence. (Dr Mg Mg p-58)
In Daw Kyin Ou v. U Nyunt Maung, (1972, M.L.R, Supreme Court, p-1), if
the terms and conditions of the contract are written in a contract, there is no right to
submit evidence other than the contract to demonstrate the terms of the contract. Those
who signed the contract to contradict the terms of the contract and to prepare and to fill
and to withdraw and no oral promise or statement shall be admitted as evidence.
 28

In the case of U Kway v. U Aye 1965, M.L.R, 1116, although they have signed
sales contracts, these are fake contracts, and they have the right to prove that they are
so.
Daw Mya May v. Daw Kyin open oral p – 203 Phoe Thar, Daw Ngwe Thee p-
208.
When the language used in a document is, on its face, ambiguous or decective,
evidence may not be given of facts which would show its meaning or supply its defects.
Illustrations.
(a) A agrees, in writing, to sell a horse to B for Rs. 1,000 or Rs, 1,500. Evidence cannot
be given to show which price was to be given.
(b) A deed contains blanks. Evidence cannot be given of facts which would show how
they were meant to be filled. (Sec-93)
From this section to section 98, it is stipulated whether oral evidence is allowed
to be submitted to clarify the meaning of the terms contained in the contract. According
to example (a) in this section, if the expression is understandable but unclear; As per
example (b), if the statement is so defective as to be unintelligible, there is no right to
prove oral evidence to clarify or supplement the statement. Such obvious ambiguity or
misinterpretation is called patent ambiguity or patent defect. Therefore, if there is
(patent ambiguity or patent defect) according to this section, oral evidence is not entered
to clarify them. Article 95, 96 and 97, if the terms of the contract are clear and
intelligible, but inconsistent with existing reasons, oral evidence is entered to clarify
those terms. This kind of ambiguity or defect is called latent ambiguity or latent defect.
Therefore, if there is a latent ambiguity or latent defect, If there is no evidence (latent
ambiguity or latent defect) then evidence is entered. (U phoe thar p-210)
When language used in a document is plain in itself, and when it applies
accurately to existing facts, evidence may not be given to show that it was not meant to
apply to such facts.
Illustration
A sells to B, by deed, "my estate at Tavoy containing 100 acres." A has an estate at
Tavoy containing 100 acres. Evidence may not be given of the fact that the estate meant
to be sold was one situated at a different place and of a different size. (sec-94)
Under this section, the terms of the contract are not ambiguous. No defect. If it
is consistent with existing reasons, in other words, if there is no (patent or latent
 29

ambiguity), then there is no right to present contrary evidence in the meaning of those
expressions. (U Phoe Thar p-
When language used in a document is plain in itself, but is unmeaning in
reference to existing facts, evidence may be given to show that it was used in a peculiar
sense.
Illustrations.
A sells to B, by deed, "my house in Yangon.".
A had no house in Rangoon, but it appears that he had a house at Insein; of which B
had been in possession since the execution of the deed. These facts may be proved to
show that the deed related to the house at Insein. (Sec-95)
When the facts are such that the language used might have been meant to apply
to anyone and could not have been meant to apply to more than one, of several persons
or things evidence may be given of facts which show which of those persons or things
it was intended to apply to.
Illustrations.
(a) A agrees to sell to B, for Rs. 1,000, "my white horse." A has two white horses,
Evidence may be given of facts which show which of them was meant.
(b) A agrees to accompany B to Tantabin. Evidence may be given of facts showing
which Tantabin was meant. (Sec-96)
When the language used applies partly to one set of existing facts, and partly to
another set of existing facts, but the whole of it does not apply correctly to either,
evidence may be given to show to which of the two it was meant to apply.
Illustration.
A agrees to sell to B "my land at X in the occupation of Y." A has land at X, but not in
the occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence
may be given of facts showing which he meant to sell. (Sec-97)
98. Evidence may be given to show the meaning of illegible or not commonly
intelligible characters, of foreign, obsolete, technical, local and provincial expressions,
of abbreviations and of words used in a peculiar sense.
Illustration
A, a sculptor, agrees to sell to B, " all my mods, " A has both models and modelling
tools. Evidence may be given to show which he meant to sell. (Sec-98)
In the case of Yeo Taung Ho and Tan Sun Lee (1954, M.L.R, Supreme Court
87), if the contract is written in a foreign language, the meaning of the words and
 30

phrases in the contract shall be determined according to Article 98 of the Evidence Act.
The court must accept the official translation. It states that it can be rejected only if
there is other proof of expertise.
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. (Sec-99)
Section 92 forbids the admission of evidence of an oral agreement for the
purpose of contradicting, varying, adding to, or subtracting from, the terms of a written
document as between the parties to such document or their representatives in interest.
The rule of exclusion laid down in the section does not apply to the case of a third party
who is not a party to the document. on the contrary, this section distinctly provides that
persons who are not parties to a document may give evidence tending to show a
contemporaneous agreement varying the terms of the document. (ratanlal p- 198)
Nothing in this Chapter contained shall be taken to affect any of the provisions
of the Succession Act as to the construction of wills. (Sec-100)

3.3 Comparison between Oral Evidence and Documentary Evidence

All facts, except the contents of documents, may be proved by oral evidence.
Oral evidence must be direct. (Sec- 59)
Oral evidence is not as valuable as documentary evidence because it can be
altered for various reasons. That's why it is often said that a hundred words are a letter.
Oral evidence can be changed due to various reasons and is accepted carefully.
In considering the oral evidence, whether the evidence is able to find out the reasons
for the case, whether there is reason to make a false statement, the cause that arise in
the case, whether it is relevant to the concept of nature, whether to accept or not after
analyzing the information such as whether the evidence of one witness disagrees with
the evidence of the other witnesses after decided. It is also important to be careful
whether the witness's evidence can withstand cross-examination. The law does not
prohibit the evidence of the witness from being accepted because the witness is related
 31

to the accuser. And decided whether there is reason to lie is determined based on the
facts. (U Thet Phe p- 145)
Random evidence can be easily shown, although it cannot be said that every
random evidence is untruthful. The statement of the witness should not be taken lightly.
It is necessary to consider carefully. (U Hla Htun v U Hti, 1966 M.L.R, 1599)
In oral evidence, anyone can be taught and asked to testify easily. It must be
accepted only after carefully considered. (U Mayyarmadin v Ma Than Nyunt, 1974,
M.L.R 48)
The parties must present the most reliable evidence to the Court. According to
this principle, Section 91 of the Evidence Act prohibits the use of oral evidence when
the terms of a contract have been written down, or if the law requires the matter to be
in written form. If oral evidence is accepted, the document, which has been mutually
agreed upon by the parties under the Contract Act, will be weakened. If the terms of the
contract, as agreed by both parties, are fully documented, only that written document
should be accepted as evidence when the terms need to be proven. When primary
evidence is provided under Sections 61 to 65 of the Evidence Act, no other oral
evidence can be presented.
The exclusion of the oral evidence can be classified in three kinds. They are as
follows;(1) the case that it must be made by the document enacted by law (2) the case
that the rules of contract has been written as document (3) the cause that the documents
are not inclusive in above two cases and whether the document has or not, the case
whether the facts of it are true or not, is issuing.
A party to a written contract cannot rely on oral promises or statements to
contradict, modify, repair, add to, or remove the terms outlined in the contract.
The only evidence that can be accepted is a document when the law requires
that similar cases must be documented. If the primary evidence cannot be presented,
secondary evidence may be submitted, provided it qualifies as evidence under Sections
61 to 65 of the Evidence Act. The law stipulates that it must be done through a contract,
and unless a contract is made, no witness will be allowed to present it.
In accordance with Section 17 of the Registration Law and Sections 54, 59, 107,
and 123 of the Transfer of Property Act, some contracts are invalid unless registered.
Section 49 of the Registration Law stipulates that unregistered contracts do not affect
immovable property. The issue of whether or not a contract needs to be registered is
mainly related to the registration law, but if Section 49 of the Registration Law is read
 32

together with Section 91, if it is forbidden to use the contract because it is not registered,
oral evidence or no other witness can be presented. Therefore, an unregistered contract
of sale of immovable property, mortgage contract, and other contracts that transfer
immovable property cannot be witnessed, and the terms of the contract can be witnessed
orally. It cannot be shown by other witnesses.
Similarly, if a contract of gift of immovable property is not registered, it is
illegal and no other witness can be presented. If a contract is not registered and is not
witnessed, there is no right to present the witness through the contract.
 iv

Conclusion
In conclusion, this study highlights how important documentary evidence is in
the legal process. By examining its nature, its key features, and how effective it can be,
it becomes clear that documentary evidence plays a vital role in establishing facts and
supporting justice. The study looks at different types of documents and the strict rules
for admitting them in court, showing how carefully documentary evidence must be
handled. Comparing documentary evidence to oral evidence also reveals the strengths
and weaknesses of each. Ultimately, this research confirms that documentary evidence
is essential in the legal field, influencing outcomes and maintaining the fairness of
judicial processes. The insights from this study help us better understand the value and
impact of documentary evidence in achieving justice.

Findings
The key findings indicate that the value of Documentary Evidence is heavily
dependent on factors such as the authenticity, reliability, and relevance of the
documents. Strategies for establishing the chain of custody were also found to be
critical for the admissibility of documentary evidence.

Recommendation
The study recommends to adhere strictly to court procedures and guidelines
regarding the submission of documentary evidence. And also legal practitioners should
be well-trained and aware of the requirements of the Myanmar Evidence Act to prevent
the unintended submission of incomplete documents.
 Reference List

Laws
1. The Evidence Act, 1872.

Books

1. Ratanlal and Dhirajlal, Law of Evidence,12th edition,1953.

2. Dr Maung Maung, the Law of Evidence by Sir Arthur Eggar, 3rd Edition,2014.
3. Thet Pe, U, Knowledges of Law of Evidence,2018.
4. Po Aye, U, General of Law of Evidence, 2nd edition,2022.
5. Phoe Thar, U, Definition of Law of Evidence, 8th edition,2020.
6. Mya, U, Law of Evidence,1997.
7. Win Swe Oo, U, Note of Law of Evidence,2020.
8. Thet Htun, U, the Note of Evidence Act, 2020.
Cases
1. Maung Maung Thaung v U Hla Gyi and Daw Aye Kyi 1963, M.L.R (C.C)
2. Daw Saw Shin and two others v Kwar Kee Yar Kook and thirty-six others 1963,
M.L.R, Supreme Court, p-765.
3. U Zaw Win Mon v The Union of Myanmar and two others 2017, M.L.R, p-32.
4. Ma Pan Si (or) Daw Yin Yin v Ma Hla Yin and six others 1963, M.L.R Supreme
Court, p-800.
5. U Thar Kyan v Daw Kyaing and two others 1981, M.L.R, p-94.
6. Daw Phwar Thet v U Soe Aung 1995, M.L.R, Supreme Court, p-84.
7. U Soe Aung v Daw Khin Hla Hla and two others 2000, M.L.R pg-73.
8. Daw Tote Tote and four others v Daw Sein Sein Win (or) Daw Hla Kyi and
three others, 2003, M.L.R, Supreme Court p-115.
p-208.