Introduction:
The word ambiguity deals with the quality of being open to more than one interpretation or the inexactness of the thing.
Section 93-100 of Indian Evidence Act, 1872 deals with ambiguity of documents which is led by uncertain language or the applicability of facts stated in the document which create doubts. Generally, the principles given the provisos of section 93-100 is categorised into two category –
- Patent Ambiguity (section 93 and 94)
- Latent Defects (section 95, 96 and 97)
The patent ambiguity deals with apparently defective document which can be figured out by any person of ordinary intelligence. The principle laid in section 93 and 94 of Indian Evidence Act, 1872 is laid as per the view that the given defect cannot be allowed to remove by oral evidence. The theory behind this ideology is that the facts presented in the documents were so apparent that it would be obvious for the parties to know. Hence it is deemed to be ‘late’ to remove such defect as the dispute has been arisen.
The latent defects on the other hand are not so apparent on the face of record. So, if the document had been given a plain reading, it would be perceived as the facts stated in the documents are correct and conclusive. Whereas when an attempt has been made to apply the stated facts practically then conjecture of the document can be easily identified. The defect emerged is not in the language used in the document but the application of language to the facts stated in. The general principle is that the evidence can be given to remove such defects because the nature of defect is hidden.
DIFFERENTIATING THE AMBIGUITIES:
On The Basis of Provisions:
- Section 93 and 94 of Indian Evidence Act, 1872 elaborately explains the nature of patent ambiguity.
- Section 95, 96 and 97 of Indian Evidence Act, 1872 specifies the provisions of latent defects.
On The Basis of Nature:
- The nature of patent ambiguity deals with the apparent defect that is recorded on the document of deed or agreement.
- The nature of latent defect deals with hidden defect that is only surfaced when the facts of the documents are practically applied.
On The Basis of Admissibility of evidence:
- The admissibility of evidence under patent ambiguity is not allowed as it implies that the facts stated therein were obvious to the knowledge of parties.
- The admissibility of evidence under latent defect is allowed as giving benefit of doubt to clear the circumstances of the facts presented in case.
On The Basis of Acknowledgment of Ambiguity:
- The patent ambiguity is acknowledged on prima facie inspection.
- The latent defect cannot be inspected on prima facie.
EXCLUSION OF EVIDENCE UNDER PATENT AMBIGUITY:
By the virtue of Section 93 of Indian Evidence Act, 1872 the proviso for the exclusion of evidence in case of explanation or amendment of ambiguous document states that when the defect in the document is so apparent that it could not be neglected at first read then in such situation no evidence must be supplied to justify such defect.
Illustration – If a deed contains blanks and is signed by both the parties then evidence cannot be given of facts which would show how they were meant to fill.
While no extrinsic evidence can be given to remove such defect, the court may if is possible, fill up the gaps or blanks in a document with the help of the other contents of the document. It means that the statement in one part of document can be used to remove defect in some other part. Thus, where a lease deed left blanks at the place where the date of commencement should have been mentioned, but in another part, it said that the first instalment of rent would be paid on certain date, the Allahabad High Court held that the date of the payment of the first instalment could reasonably be fixed as the date of commencement.[1]
In Kandamath Cine enterprises P. Ltd. v. John Philipose; A.I.R. 1990, a contract for the sale of a part of the land of 5 acres, described the part to be sold as “one acre of front land.” It was held that what constituted the “front land” for this purpose was ascertainable. There was no conclusion about the language used and, therefore, section 93 was not attracted.
Pursuant to Section 94 of Indian Evidence Act, 1872 the provision was laid as to the exclusion of evidence against the application of document to an existing fact wherein it was stated that 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 Rampur containing 100 bighas”. A has an estate at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate implied here was Ballarpur instead of Rampur with some different size.
The illustration appended to the section makes the principle very clear. This second type of patent defect arises when the language of a document is quite clear and it clearly applies to the facts stated therein, no extrinsic evidence can be offered to show that the document was not intended to apply to such facts.
Section 94 comes into play only when there is a document and its language has to be considered with reference to a particular factual situation. The section applies when the execution of the document has been admitted and no vitiating factor has been proved against it. Where the document in question was recorded of the proceeding of the Board and contained an admission under signature of the parties, it was held that an admission could be explained by the maker of it and, therefore, oral evidence of explanatory nature was admissible.[2]
EVIDENCE PERTINENT TO LATENT DEFECTS:
As per laid under the provision of Section 95 of Indian Evidence Act,1872 the evidence as to document unmeaning in reference to existing facts explains as when the language of a document is plain but in its application to the existing facts it is meaningless, evidence can be given to show how it was intended to apply to those facts.
Illustration – A sells to B, by deed, “my house in Calcutta”. A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed.
In the above given illustration, a house is agreed to be sold by a written deed. The house is described to be located at a particular place or in particular city. It turns out that the seller has no house at that place or in that city, but has a house in nearby place and that has also been in the occupation of the buyer. Evidence can be given to show that such house was meant to be sold.
Section 96 of Indian Evidence Act, 1872 states the evidence as to application of language which can apply to one only of several persons which explains when the language of a document is clear and is intended to apply to only one thing or one set of facts, but its implication to the existing facts makes it tough to imply as which particular thing is intended. In such a situation an evidence can, be offered.
Illustration – A agrees to accompany B to Hyderabad. Evidence can be suggested showing whether Hyderabad in the Deccan or Hyderabad in Sind was meant.[3]
Where a promissory note mentioned a date according to the local calendar and also according to international calendar, but the two dates turned out to be different, it was held that evidence could be offered to show which date was meant.
Pursuant to Section 97 of Indian Evidence Act, 1872 lays the provision for the evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies. The principle of the section describes when the ambiguity arises when the language of the document applies partly to one set of facts and partly to other instead of applying completely to either set of facts, evidence can be shown to justify the matter.
Illustration – A agrees to sell to B “my land at X in the occupation of Y”. A has land at X, but not in 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.
The illustration appended states that a house property is sold by written deed. The house is described to be the sellers house at Ghaziabad now in the occupation of the buyer. Subsequently it turns out that the seller has a house at Ghaziabad but that is not in the occupation of the buyer and he has a house in the occupation of the buyer, but that is not at Ghaziabad.
EXTRINSIC EVIDENCES:
Besides the evidences provided under patent ambiguity and latent defects, there are document on which extrinsic evidence can be given. Such matters are given under section 98 and 99 of Indian Evidence Act,1872.
By the virtue of Section 98 of Indian Evidence Act, 1872 permits evidence to be given of the meaning of words or marks of illegible characters or words which are not commonly of intelligible character, foreign words, obsolete words, technical, local and provincial expressions, abbreviations words used in a peculiar sense.
Illustration – An artist agrees to sell “all his models”. Evidence can be given to show whether he, meant to sell all his models or modelling tools.
Section 99 of Indian Evidence Act, 1872 extended the provision laid in section 92 that the parties to a document or their representative-in-interest cannot give evidence of a contemporary agreement varying the terms of the document. But the provision is modified under section 99 to the extent that evidence of such an oral agreement can be given by a third party if he is affected by it.
CONCLUSION:
Section 93 to 97 of Indian Evidence Act, 1872 specifically deals with ambiguous documents. Therefore, the provisions laid helps to categorise the type of ambiguity delt within a deed or an agreement. As observed, there are two categories of ambiguous documents – patent and latent. The presence of patent ambiguity can be figured out with person of ordinary intelligence whereas latent defects require the justification of practical application of the facts stated in the documents. Parties could acknowledge the deliberate cause for ambiguity or they can mend the situation by providing proper evidence to the case. The hon’ble Supreme Court have specifically revised the definitions of patent and latent ambiguity while settling the dispute between Anglo American Metallurgical Coal (AAMC) and MMTC Ltd.[4]
References:
1. UP Govt v. Nanhoomal A.I.R. 1950; Pradeep Kumar v. Mahaveer Pershad A.I.R. 2003
2. General Court Martial v. Col. Aniltej Singh Dhaliwal, A.I.R. 1998
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