Can Extrinsic Evidence to Explain an Ambiguity in a Document, be Admissible?
The most general rule on this point is that of Lord Eldon, who once said, “Generally speaking, you must construct an instrument by what is found within the four corners.” Of course, this rule is subject to several qualifications, depending on the facts and circumstances of each case.
Commenting on this rule of evidence, it was observed in an English case (Shore v. Wilson, (1842) 9 CI & F 355), as follows:
“If the rule were otherwise, no lawyer would be safe in advising upon the construction of a written instrument, nor any party in taking under it, for the ablest advice might be controlled and the clearest title undermined, if at some future period, parole evidence of the particular meaning which the party affixed to his words, or of his secret intention in making the instrument or of the objects he meant to benefit under it, might be set up to contradict or vary the plain language of the instrument itself.”
When extrinsic evidence:
Can be given (Ss. 95-98):
1. When the language used in the document is plain in itself, but unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. (S. 95)
A sells to Â by deed “my house in Calcutta.”
A has no house in Calcutta, but it appears that he had a house at Howrah, of which Â 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 Howrah.
2. When the facts are such that the language used might have been meant to apply to any one, 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. (S. 96)
(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 Â to Hyderabad. Evidence may be given of facts showing whether Hyderabad in the Deccan or Hyderabad in Sind was meant.
3. When such language 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. (S. 97)
A agrees to sell to Â “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.
S. 97 is based upon the maxim falsa demonstration non nocet. (a false description does not vitiate a deed).
4. Evidence may be given to show the meaning of —
(a) Illegible or not commonly intelligible characters,
(b) Foreign, obsolete, technical, local and provincial expressions,
(d) Words used in a peculiar sense. (S. 98)
A, a sculptor, agrees to sell to 6, “all my mods.” A has both models and modelling tools. Evidence may be given to show which he meant to sell.
Cannot be given (Ss. 93-94):
1. When the language used in a document is, on its face, ambiguous or ineffective, evidence may not be given of facts which would show its meaning or supply its defects. (S. 93)
(a) A agrees, in writing, to sell a horse to Â 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.
2. 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 has not meant to apply to such facts. (S. 94) 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 meant to be sold was one situated at a different place and of a different size.
‘Patent’ and ‘Latent’ Ambiguity:
Ambiguities in documents are said to be either patent or latent, the former arising where the instrument, on its face, is unintelligible, as where the name of a legatee is left wholly blank in a will. Latent ambiguity, on the other hand, arises where the words of the instrument are clear, but their application to the circumstances is doubtful, as where a legacy is given to “my niece Jane” and the testator has two nieces of that name. Section 93 embodies the rule with regard to patent ambiguity and Ss. 95-97 relate to latent ambiguity.
According to Lord Bacon, all ambiguities may be either patent or latent, a patent ambiguity being one “which appears to be ambiguous upon the deed or instrument”. A latent ambiguity, on the other hand, in the words of Lord Bacon, is one “which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breadth the ambiguity.”
In other words, patent ambiguity must be understood as an ambiguity which is inherent in the words and is incapable of being dispelled, either by any legal rules or receiving a known, conventional meaning. A latent ambiguity, on the other hand, is not ambiguity in the language, but in the relation of the language used to the existing facts. Thus, if X agrees to sell his “house in Mumbai”, the language is not ambiguous. But, it would be a case of latent ambiguity if X has no house in Bombay, but only a house in Pune, or if he has two houses in Mumbai.
Thus, in one case, a vakalatnama did not contain the name of the pleader after the word “Mr.” in the printed form but bore the signature of the party as well as of the pleader. The Court held that the ambiguity in the document was not patent ambiguity, but latent ambiguity which could be cleared up by extrinsic evidence under S. 96.
The difference between patent and latent ambiguity can be tabulated as follows:
(i) Patent ambiguity arises where the language used in a document is on its face ambiguous or defective. It is inherent in the words and incapable of being dispelled.
(ii) It is subjective.
(iii) Extrinsic evidence is not admissible to remove it.
(i) Latent ambiguity arises from (1) the existence of facts external to the instrument, and (2) the creation by these facts of a question not solved by the document itself.
(ii) It is objective.
(iii) Extrinsic evidence is allowed to remove it.
Lastly, it is clarified that nothing in this Chapter affects the provisions of the Indian Succession Act, 1925, as to the construction of wills. (S. 100)