DOCUMENTS: LATENTLY AMBIGUOUS

Final draft submitted in fulfillment of the course Evidence Law, Semester – IV

during the Academic Year 2017 – 18.

Submitted by

Gyanendra Singh , 1529

BA.LLB
Submitted to
Dr. P. K. V. Sita Rama Rao

April 2018

Chanakya National Law University

Nyaya Nagar, Mithapur

800001, Patna

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Contents
DECLARATION................................................................................................................................................3
ACKNOWLEDGMENT....................................................................................................................................4
OBJECT OF THE STUDY:...............................................................................................................................6
HYPOTHESIS:...................................................................................................................................................6
RESEARCH METHODOLOGY:.......................................................................................................................6
SOURCES OF DATA:.......................................................................................................................................6
SCOPE OF THE STUDY:..................................................................................................................................6
CHAPTER 1: NATURE AND FUNCTION OF THE LAW OF EVIDENCE..................................................7
CHAPTER 2: AMBIGUITY............................................................................................................................10
CHAPTER 3: PATENT AND LATENT AMBIGUITIES IN WRITTEN INSTRUMENTS...........................18
CHAPTER-4 RELEVANT PROVISIONS.......................................................................................................22
CHAPTER 4: CONCLUSION.........................................................................................................................25
BIBLIOGRAPHY............................................................................................................................................28

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 DECLARATION

I hereby declare that the work reported in the BA LL.B (Hons.) Project Report
entitled ―, DOCUMENTS: LATENTLY AMBIGUOUS‖ submitted at
Chanakya National Law University, Patna is an authentic record of my work
carried out under the supervision of Dr. P. K. V. SITA RAMA RAO, and I have
not submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Project Report.

GYANENDRA SINGH Signature of the student

Roll No. -1529 ………………………

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 ACKNOWLEDGMENT

I am feeling highly elated to work on under the guidance of my Evidence law faculty. I am
very grateful to him for the exemplary guidance. His assignment of such a relevant topic
made me work towards knowing the subject with a great interest and enthusiasm.

I would like to enlighten my readers through this topic and I hope I have tried my best to
bring more luminosity to this topic. I am overwhelmed in all humbleness and gratefulness to
acknowledge from the bottom of my heart to all those who have helped me to put these ideas,
well above the level of simplicity and into something concrete effectively and moreover on
time.

I also want to thank all my friends; without whose cooperation this project was not possible.
Apart from all these, I want to give special thanks to the librarian of my university who
made every relevant material regarding to my topic available to me at the time of my busy
research work and gave me assistance.

I owe the present accomplishment of my project to my friends, who helped me immensely

with sources of research materials throughout the project and without whom I couldn’t
have completed it in the present way. I would also like to thank the library staff for working
long hours to facilitate us with required materials going a long way in quenching our thirst
for education. I would also like to extend my gratitude to my parents and all those unseen
hands who helped me out at every stage of my project.

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 OBJECT OF THE STUDY:

The researcher has undertaken this research to find

● Facts of the case

● Judgement analysis
● Ratio behind the rule

HYPOTHESIS:

The researcher assumes that in case of Ratten’s, the provisions given or propounded by the
judges lacked several minor details because of which the theory could be misused.

RESEARCH METHODOLOGY:

The researcher would like to follow doctrinal method for this research. The researcher will
gather data from both the primary and secondary sources.

SOURCES OF DATA:
Secondary sources
Primary sources

Legislative provisions Books

Case laws Newspapers

Magazines

Websites

SCOPE OF THE
STUDY:

The research will provide a stepping stone for further research. It will also be useful to the
society as the readers will come to know that how the provision is being used today,
sometimes to protect and sometimes to harass.

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 CHAPTER 1: NATURE AND FUNCTION OF THE LAW OF
EVIDENCE

Every case that comes before a court of law has a fact story behind it facts out of which cases
arise keep happening in the ordinary course of life. There is a crowded road for example
people are moving, vehicles are moving1. Everyone is running at unmitigated speed suddenly
two vehicles run against each other. One of them being loaded with dynamite the accident
produces an explosion with a shocking noise as a result of which a noise in a nearby hospital
drops a child from hands injuring the child cases arising out of the accident with flow into the
courts. In each case the nature and cause of the accident would be in question. The facts
which led up to the climax will have to reconstruct before the court. So that judge is able
consider the real happening. Only then he will be in position to apply the appropriate law to
the fact to arrive at a just solution about the right and liabilities of the parties. Thus, whenever
a judge is called upon to pronounce upon the right and liabilities of parties arising out of fact
certain information about the facts involved in his mind as to what the real facts are facts
must be proved in the first instances and the only the matter is rife for application of relevant
laws. The practical reality is that the truth or merits of a case are worth less unless they can be
proved to be acceptance of the judge and there to enable him to act on them. The means by
which facts are proved are governed by the law of evidence. The function of the law of
evidence is lay down rules according to which the facts of case can be proved or disproved
before a court of law. The means which can be used to prove a fact are all control by the rules
and principles laid down by the law of evidence. The law of evidence does not affect
substantive right of parties but only lays down the law for facilitating the rules of evidence
for the purposes of the guidance of the court. It is procedural law which provides inter alike
how a fact is to be proved2. The evidence means any things by which any alleged matter of
facts is either establish or disproved. Anything that makes the thing in question evidence to
the court evidence. Where the question is whether an explosion took place before a fire
occurred evidence can be both oral and documentary and electronic records can be produced
as evidence. Even in criminal matter also there can be evidence by means of electronic
records including video-conferencing. The noise of the explosion and its flash are evidence of
it. Persons who can the flash or heard the noise can give evidence of the fact of the explosion.

1
Dhirajlal, Ratanlal. The Law of Evidence. Gurgaon: Lexis-Nexis, 2011.
2
Ibid.

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If the happening of the fact is recorded on anything apart from human meaning, that record is
also an evidence of happening thus, evidence can be defined as any material which tends to
persuade the court of the truth or probability of some fact asserted before.

MODES OF PROOF: -

1. Oral evidence

2. Documentary evidence

Oral Evidence Section 59: -

All facts, except the [contents of documents or electronic records] contents of documents,
may be proved by oral evidence.

Definition of oral evidence: - Sec 3

The meaning of expression “oral evidence” is given along with the definition of the term
“evidence” in Sec 3. This first part of the provision which defines evidence deal with oral
evidence it says: - All the statements which the court permits or requires to be made before it
by witness in relation to the matter of four under inquiry, such statements are called oral
evidence. Oral evidence is evidence which is confined to words spoken by the mouth.

Words of the Section: -

This section is not very happily worded contents of documentary may be proved by oral
evidence under certain circumstances, that is to say when such evidence of their content is
admissible as secondary evidence3.

Contents of document cannot be proved by oral evidence: -

It is rule of evidence not one of technically but of substance that, where written documents
exist they shall be produced as being two best evidence of their own contents.

What fact may be proved by oral evidence: -

Oral evidence may suffice to prove possession oral evidence of credible would be sufficient
to prove a little by prescription.

3
SudiptoSarkar, V.R Manohar, Law of Evidence, (16 th, Universal Law Publishing, New Delhi
2007,) .

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Oral evidence weigh and value: -

Where oral evidence is conflicting and where documentary evidence does not help on
incoming to a decisive conclusion the duly proper course is to see what are the admitted fact
in case and what case the circumstance deducible from the can be no doubt this can be the
true method of arising a correct conclusion.

" Document” means 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, for the purpose of recording that matter4.

Illustrations: -

Writing is a document: Words printed lithographed or photographed are documents: A map

or plan is a document: An inscription on a metal plate or stone is a document: A caricature is
document." Evidence."" 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." Proved." A fact is
said to be proved when, after considering the matters before it, the Court either believes it to
exist, or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists." Disproved." A
fact is said to be disproved when, after considering the matters before it, the Court either
believes that it does not exist, or considers its non- existences probable that a prudent man
ought, under the circumstances of the particular case, to act upon the supposition that it does
not exist." Not proved." A fact is said not to be proved when it is neither proved nor
disproved." India." 3[ India" means the territory of India excluding the State of Jammu and
Kashmir.

4
SudiptoSarkar, V.R Manohar, Law of Evidence, (16 th, Universal Law Publishing, New Delhi
2007,)

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 CHAPTER 2: AMBIGUITY

Ambiguity are of 2 kinds; (i) Patent ambiguity and, (ii) Latent ambiguity. (a) Patent: Patent
ambiguity are those ambiguities which can be discover from a plain reading of the document.
For example: if a document state that a sale to be 3 chata of land and hands over possession
of the 5 chata of land- that document will be considered suffering from patent ambiguity.
Because in such case it is not clear from the document itself, as to whether 3 chatas of land
and 5 chatas was sold. (b) Latent: Latent ambiguity are these ambiguities which can be
discover upon reading of a document, but become apparent when the statement is to be
applied practically. For example: if A says I sale to be my land and 3 storied building over it
which is situated at in Shajahanpur, and it is found that A thow has a building at Shajahanpur
but that is 1 storied. On the other hand, a has a 3 storied building situated at Shjahad pur this
will be a case of latent ambiguity. No ambiguity and patent ambiguity: No oral evidence can
be given to explain. Latent ambiguity: Oral evidence can be given to explain 5. Execution of
evidence to explain or amend ambiguous document 93. Evidence of evidence against
application of document to existing facts94. Evidence as to document unmeaning in reference
to existing facts 95. Evidence as to application of language which can apply to one only of
several persons 96. Evidence as to application of language to one of two sets of facts, to
neither of which the whole correctly applies 97. Evidence as to meaning of illegible
characters 98. Who may give evidence of agreement varying terms of document 99. Saving
of provisions of Succession act relating to wills 100.

Parole evidence is oral evidence, as opposed to written evidence. Most agreements are
enforceable under contract law even if only oral. Parole is a rule that oral evidence cannot be
used to contradict the terms of a written contract.

In the context of contracts, deeds, wills, or other writings, parole evidence refers to
extraneous evidence such as an oral agreement (a parole contract), or even a written
agreement, that is not included in the relevant written document6.

"Parole evidence of an agreement consisting of mere oral promises made previously or

concurrently with the execution of a written contract of sale of land is inadmissible to charge

5
Batuk Lal, The Law of Evidence (20th, Central Law Agency, 2013)
6
Ibid.

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the vendee with the payment of more than the expressed consideration, when the amount to
be paid plainly appears from the face of the instrument.
"The parole evidence rule applies to written contracts for the sale or exchange of reality or
personality, and to such provisions as those relating to price; time and mode of payment, and
time and place of delivery. The parole evidence rule applies to written contracts to safeguard
the terms of the contract. The parole evidence rule does not apply to written integrated
contracts in some instances. For example, clerical or typographical errors found in the written
agreement may be changed because the incorrect term does not represent the true agreement
between the parties7.

Section 91 and 92 of the Evidence act are containing parole evidence.

According to section 91

(1) When term of (a) contract (b) a grant (c) any disposition of property has been reduced to
the form of a document; or

(2) Where any matter is required by law to be reduced to the form of a document, then (a) the
document itself or (b) secondary evidence of its contents must be put in evidence. This
section 1st provision refers to transaction voluntarily reduced in writing. And the 2ed
provision refers to those cases in which any matter is required by law to be reduced to the
form of a document.e.g. Sale of immovable property of the value of 100,000 and upwards,
mortgage for an amount exceeding 100,000 and trust or gift of immovable property. There
are 2 exceptions of this provision, which are (i) When any public officer required by law to
be appointed in writing and any officer has acted such as, the writing need not be proved; (ii)
Will admitted to probate in Bangladesh may be proved by the probate. Section 92 operates
only as between the parties to a deed or their representative in interest. This section
supplementary to section 91 and is to some extent Implied in it. According to this section (1)
When term of (a) contract (b) a grant (c) any disposition of property has been reduced to the
form of a document; or (2) Where any matter is required by law to be reduced to the form of
a document, Have been proved by the production of the document or by giving secondary
evidence of its contents, no evidence of any oral agreement or statement shall be admitted as
between the parties to any such document or their representative in interest, for the purpose of

7
https://www.legalindia.com/acts/topic/section-93-of-indian-evidence-act last visited on 12 april, 2018.

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(i) contradicting, (ii) varying (iii) adding, (iii) subtracting form its terms.
There are 6 exceptions of this section as follows:

(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
for due execution, want of capacity in any contracting party, want or failure of consideration,
or a mistake in fact or law;
(2) Any separate oral agreement as to any matter on which the document is silent and which
is not inconsistent with its terms, may be proved;
(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;
(4) 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 except such contract of grant in required to be in writing or has been registered;
(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 if they are not repugnant to or
inconsistent with its express term;
(6) Any fact may be proved which shows in what manner the language of a document is
related to existing facts.
In the last we can say that section 91 and 92 define the cases in which documents are
exclusive evidence of transactions’ which they embody. They only apply when the document
evidencing a contract appears to contain all the terms thereof8.

The documentary evidence is of 2 kinds; which are:

Primary Evidence: facts and details that have been drawn from documents rather than from
other, more recent, explanatory articles or books9.

Section 62 defines the meaning of primary evidence which means the document itself
produced for the inspection of the court. Where a document is executed in several parts, each
part is primary evidence of the document. Where a document is executed in counterpart, each

8
https://www.legalindia.com/acts/topic/section-93-of-indian-evidence-act last visite on 13 april, 2018
9
SudiptoSarkar, V.R Manohar, Law of Evidence, (16 th, Universal Law Publishing, New Delhi
2007,)

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counterpart is primary evidence, as against the party executing it. A document is executed in
counterpart when there are two parties to the transaction. Primary evidence is the evidence
which the law requires to be given first.
Secondary Evidence: Information that has been drawn from other articles, magazines, or
books rather than from the original documents, often located in archives. The usual
distinction is that secondary evidence may be coloured by someone else's interpretation of the
meaning of the primary sources.

Section 63 describes what constitutes secondary evidence. Secondary evidence is the

evidence which may be given under certain circumstances in the absence of that better
evidence which the law requires to be given.
Secondary evidence means and includes-
Certified copies; (Section 76 defines the expression certified copies). Copies made from the
original by mechanical process, and copies compared with such copies; Copies made from or
compared with the original; Counterpart of document as against the parties who did not
execute them; Oral accounts of the contents of a document by a person who has seen it10.

Proof of documents by primary evidence 64: Document must be proved by primary evidence
except in the cases hereinafter mentioned. A written document can be only proved by the
instrument itself. Without objection the evidence may be given,

Case in which secondary evidence relating to documents may be given 65: Secondary
evidence may be given of the existence, condition or contents of a document in the following
cases-
Original in possession of opposite party; Documents admitted by opposite party; Original
documents lost or destroyed; Original documents not easily movable; When the original is a
Public document within the meaning of section 74; Certified copies permitted by law;
Document which cannot be conveniently examined.

Ambiguity is of two kind; which are:

(1) Latent ambiguity

10
SudiptoSarkar, V.R Manohar, Law of Evidence, (16 th, Universal Law Publishing, New Delhi
2007,) .

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An ambiguity that is not apparent from the wording of a document but is caused by external
circumstances. Latent ambiguity law uncertainty existing where language employed in an
instrument is clear and appears to have but one meaning, yet outside evidence makes it
capable of more than one meaning.

Definition: Latent ambiguity is that ambiguities which can be discover upon reading of a
document, but become apparent when the statement is to be applied practically. For example:
if A says I sale to be my land and 3 storied building over it which is situated at in
Shajahanpur, and it is found that A has a building at Shajahanpur but that is 1 storied. On the
other hand A has a 3 storied building situated at Shjahadpur this will be a case of latent
ambiguity11.

(2) Patent ambiguity

Law uncertainty existing where language employed in an instrument is capable of more than
one meaning.
Definition: Patent ambiguities are those ambiguities which can be discover from a plain
reading of the document. For example: if a document state that a sale to be 3 chata of land
and hands over possession of the 5 chata of land- that document will be considered suffering
from patent ambiguity. Because in such case it is not clear from the document itself, as to
whether 3 chatas of land and 5 chatas was sold.
For discovering whether the document as referred to under section 123 and section 124 of
the Evidence Act 1872 can really be regarded privileged or it not should be determined by the
court, at first we should to know some definition-
Public officer: Public officer means a person one who holds public office; an official or
employee of the government. The term “public officer” means an officer with public as
opposed to private, duties who receives communication made to him in official confidence of
such a nature that disclosure in certain case would injure the public interests.
Disclosure: Disclose means to release information to a person other than another agency.
Disclosure means making records available, on request for examination and copying, or
furnishing a copy of records. It means providing information directly or indirectly to a person

11
Sarkar, Law of Evidence (15th, Wadhwa and Company, 2001).

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through any means of communication.
In law the word “disclosure” means the first disclosure of communications made in official
confidence and does not apply to a disclosure in a court of law of what has already been
disclosed outside it.
Privilege: In general sense it is a positive or affirmative valuation. It means having a special
advantage. (Internet)
Privilege communication: The court have in general power of require anybody within their
(subpoena) to depose in courts in judicial proceeding. Yet there are certain classes of
information and communication which a person in possession of them is entitled to withhold
from disclosure. Such information is known as privileged communication. Section 121 to 131
deal with such communication. The principle of privileged communication is founded upon
public policy and public interest. (Najrul Islam)
The Evidence Act three kinds of communication as privileged from-
(i) Matrimonial communication
(ii) Official communication
(iii) Professional communication.12

Official communication: The provisions of the Act relating to official communication are
contained in section 123 and 124 of the Evidence Act.
(a) Evidence as to affairs of state section 123
(b) Disclosure of communications made in official evidence section 124.

Section 123: This section involves two things:

(a) That the document is an unpublished official record relating to any affairs of state, and
(b) That the officer at the head of the department concerned may give or withhold the
permission for giving the evidence derived there from.
This section sufficient to justify non-production of an official document marked confidential
would not be in the public interest, for example where disclosure would be injurious to
national defense or to good diplomatic relations or where the practice of keeping a class of
documents secret is necessary for the proper functions of the public service13.
The following are examples of unpublished records of state-

12
Sarkar, Law of Evidence (15th, Wadhwa and Company, 2001).
13
ibid

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(i) Document exchanged between two states;
(ii) Document exchanged between the state and its own subject;
(iii) Document exchanged between head of department of another state;
(iv) Document exchanged between heads of department or between ministers.

It is for the court to decide whether a document falls within the category “unpublished
official records relating to any affairs of state”. In doing so the court can have regard to all
the circumstances, barring the inspection of the document itself. What are the affairs of state
has got to be determined by a reference to the grounds on which privileged can be claimed in
respect of a particular document? It is only such documents which relate to the affaires to the
state the disclosure of which would be detriment to the public interest.

Section 124: A public officer cannot be compelled to disclose communications made to him
in confidence if he considers that public interests would suffer by this disclosure. This section
is designed to prevent the knowledge of official papers, that is to say papers in official
custody, beyond that circle which would obtain knowledge of them in confidence whether the
confidence was express or implied.
The object of this section is to prevent the disclosure of things not known outside that circle
which is in confidence and the section has no application when once there has been
disclosure to a member of the public to whom the contents of such papers have not been
made known in confidence.
The sole judge as to whether disclosure will harm the public interest is the public officer
concerned and it is not for the court to decide whether public interest would or would not
suffer.

Case:
S.P Gupta vs. Union of India14.
This case arose out of the matter of transfer of a High Court judge and the non-renewal of the
term of an additional judge. The correspondence between the Law Minister and the chief
Justice of India and that between the chief justice of the High Court and the state Government
was required to be produced. It was held that though the “advice” was protected from judicial
scrutiny by virtue of art. 74 of the constitution the material on the basis of which the advice
was formulated awe not protected. The court also added that the common law protection
14
AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365.

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known as the “Crown privilege” or “public interest immunity” does not apply in India and
observed as follows. Meaning and scope of section 123 of Evidence Act 1872 cannot remain
static. It must be interpreted keeping in view our new democratic society wedded to the basic
values enshrined in the Constitution.
On the other case:
Government of Bangladesh represented by the Secretary Ministry of Law Justice and
Parliamentary affairs vs. Md. Shamsul Huda and Other15.
The High Court Division shall hold a preliminary enquiry and determined the validity of the
objection raised by the Attorney General to the protection of the paper. The Deputy Attorney
General submits that the High Court Division in the face of claim of privilege was bound to
hold a preliminary enquiry, and the High Court Division ought to have considered sections
123 and 162 of the Evidence Act. On the other hand, Mr. Amir-ul-Islam, submits that Article
48(3) does not bar the court calling upon the appellants to disclose to the court the materials.
He also submits that the privilege to withhold evidence relevant for the dispensation of justice
would cut deeply into the guarantee. The generalized of privilege must yield to the
demonstrated specific need for evidence in a pending writ petition.
The Chief Justice hold enquiry into some question which are in the following-
• Whether the paper relates to an affair of the state under section 123;
• Whether the paper in question are relevant on the basis of which the Prime Minister advised
the President;
• Whether the proper adjudication of the issues involved in the writ petition;
• Whether a privilege is sought on the ground of immunity under law.

So we can say that, the document as referred to under section 123 and section 124 of the
Evidence Act 1872 can be regarded privileged but it should be determined by the court
whether that privilege is for the public interest or not.

15
60 DLR (AD) (2008) 108

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 CHAPTER 3: PATENT AND LATENT AMBIGUITIES IN WRITTEN
INSTRUMENTS.
AN ambiguity is a doubtfulness or uncertainty of signification from a word's being
susceptible of different meanings. In law the term has received a more extensive
signification, and relates to circumstances extrinsic and beyond the definition of a word.
Although there is some confusion among the authorities, there is nevertheless a broad and
plain distinction between patent and latent ambiguities in written instruments. By the term
patent ambiguity, in its broadest sense, may be understood an ambiguity appearing on the
face of the instrument. Its frequent use in this way, in connection with the general proposition
that a patent ambiguity admits of no explanation by matters extrinsic, has occasioned no
inconsiderable degree of confusion, and led Mr. Justice STORY to think there must b'e an
intermediate class of ambiguities, comprising those instances where the words are equivocal
and yet admit of precise and definite application, by resorting to the circumstances under
which the instrument was made. As an example, he puts the case of a written contract,
assigning the party's interest in the freight of a ship; saying parol evidence would be
admissible of the circumstances attending the transaction, to ascertain whether the word "1
freight" referred to the goods on board the ship or to an interest in the earnings of the ship.
This, however, falls exactly within the general definition -of a patent ambiguity. The terms
used are in themselves of doubtful meaning, and consequently admit of more than one
interpretation according to the subject matter in contemplation of the parties. The ambiguity
is not latent in any proper sense, it arises from the known infirmity of language, it is inherent
in the instrument, appearing on its face, and evincing A difficulty at the very moment of its
perusal. And yet it admits of explanation16. The courts of law. admit evidence of particular
usages and customs, in aid of the interpretation of written instruments, whenever from the
nature of the case a knowledge of such usage and customs is necessary to a right
understanding of the instrument. Parole evidence may also be given to apply the written
instrument to the subject-matter, when used by particular persons and applied to particular
subjects17. It is perfectly right and consistent with fair dealing to give effect to language used
in a contract as it is understood by those who make use of it. Our object, however, is to point
out the distinction between patent and latent ambiguities. In order more clearly to mark that

16
Dr. V. N. Rao, The Indian Evidence Act (1st, LexisNexis Butterworths Wadhwa, Haryana 2012).
17
SudiptoSarkar, V.R Manohar, Law of Evidence, (16th, Universal Law Publishing, New Delhi 2007,).

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difference, it will be necessary to note that there are. Two kinds of patent ambiguities, and a
correct knowledge of these is essential in order to avoid their confusion with latent
ambiguities; which latter are of a perfectly distinct kind. Some patent ambiguities allow a
resort to extrinsic evidence, and others do not, and this latter class only seem appropriately to
belong to the ambiguitaspatens of which Lord Bacon writes. An ambiguity is patent in this
sense, when the mere perusal of the instrument shows plainly that something more must be
added before the reader can determine which of several things is meant by it; and then the
rule is inflexible that no evidence to supply the deficiency can be admitted. The admission of
such evidence in many cases would be, as Lord Bacon said, I to make that pass without deed,
which the law appointed shall not pass but by deed." In other words, it would be departing
from the great leading principle which prevails on this subject, and allowing oral evidence to
come in and ascertain that which the writing has left to the widest latitude of conjecture. The
Master of the Rolls, in the case of Colpoys v. Colpop s, Jacob 45118, has directly pointed out
the fallacy of saying, that a patent ambiguity
is one which admits of no explanation by extrinsic evidence. "When the person or thing is
designated," he said, " on the face of the instrument, by terms imperfect and equivocal,
admitting either of no meaning at all by themselves, or of a variety of different meanings
referring tacitly or expressly for the ascertainment and completion of the meaning to extrinsic
circumstances, it has never been considered an objection to the reception of the evidence of
those circumstances that the ambiguity was patent manifest on the face of the instrument."
When a legacy is given to a man by his surname, and the Christian name is not mentioned, is
not that a patent ambiguity? Yet it is decided that evidence is admissible. So where a gift is of
the testator's stock, that is ambiguous. It has different meanings when used by a farmer and a
merchant. The definition of a patent ambiguity in 2d vol. Stark's Ev. Falls short of supplying
a practical test, by which to determine, apriori. whether a given instance of ambiguity
apparent on the face of the writing is explainable or not by extrinsic evidence. It will not do
to say, therefore, that a patent ambiguity (meaning thereby merely an ambiguity appearing on
the face of the instrument) cannot be explained by evidence aliunde. Though such remarks
are frequent in the books19. A patent ambiguity in a written instrument, which requires that
something be added in order to make it intelligible, cannot be explained by evidence
extrinsic, and renders the instrument void. But where an expression is used capable of being
satisfied in more ways than one, there is an ambiguity on the face of the instrument, and
18
1991 A.L.R. 20 (Mad.) 83.
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/
19

&httpsredir=1&article=2161&context=penn_law_review last visited on 13 april, 2018.

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extrinsic evidence is admissible; "for the law is not so unreasonable as to deny to the reader
of an instrument the same light which the writer enjoyed." It may happen, and frequently
does, that the very evidence introduced to elucidate an explainable ‘patent ambiguity, shall
result in bringing to light a latent ambiguity, not before known to exist. A latent ambiguity
would seem at first view to be easily understood, and yet a difficulty may arise with respect
to that also from the loose manner in which the term has sometimes been used. Perhaps the
clearest definition of this species of ambiguity is the one given by Mr. Sugden. " A. mbiguitas
latens," he says, "is that which seems certain and without ambiguity, for anything on the face
of the instrument, but there is some collateral matter out of the instrument that breeds the
ambiguity." And as it is raised by extrinsic evidence, it may be fairly dissolved by the same
means. It is in the nature of a latent ambiguity never to appear on the face of the writing, but
to lie hidden in the person or thing, or subject whereof the writing speaks. The location of
lands where the boundaries are distinctly pointed out in the deed, has been called explaining a
latent ambiguity20.

A latent ambiguity also arises when the language in a document doesn't match a particular
person or thing, but two or more persons or things match the description when combined. In
this case, extrinsic evidence may clear up the ambiguity. If it doesn't, the contract may
become invalid.

Latent ambiguities often arise in construction contracts, usually from:

 general conditions
 the principal agreement
 change orders.

Normally, ambiguous language in a contract is interpreted against the party that created it. In
the case of public construction contracts, it's the contractor's responsibility to name and
resolve ambiguities before signing the contract. After signing, contractors can argue only
latent ambiguities.

As PENNDOT vs. Mosites Construction Co21. illustrates, the parties agreed the latter would
be paid in pounds of steel. The contract didn't include the weight of washers, nuts, or bolts in

20
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/
&httpsredir=1&article=2161&context=penn_law_review last visited 14 april, 2018.
21
43 Pa.Commw. 266 (1979)

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its calculation. The contractor didn't realize this until after signing. The ambiguity wasn't
clear on the face of the contract. Both the Board of Claims and the Commonwealth Court
decided the ambiguity was latent and ruled in favour of the contractor.

Latent ambiguities can also affect contractors placing bids. When bidding for an FDA
contract, a latent ambiguity prevented the RELI Group from competing intelligently for a
contract. However, a latent ambiguity in a solicitation from Miracle Systems still resulted in a
rejected proposal. Companies such as IAP, Singleton Enterprises, Deco Security Services,
Input Solutions, Inc., Ashe Facility Services, Inc. Ashland Sales and Service Company, and
The Arora Group, Inc. all alleged latent ambiguities against government agencies as well.

Latent ambiguities also arise in last wills and testaments. This especially happens when the
wording may apply to a number of people or objects. For instance, a will may refer to a name
that several family members share or to a name that combines multiple family members'
names.

The case Horadam V. Stewar22t explores the ambiguity that happens when interpreting the
phrase, "the royalties from all posthumous publication of any of my works" from a last will.
To resolve the case, the court first decided if the wording was ambiguous. Then it decided the
ambiguity was latent. The court then allowed various evidence to understand the testatrix's
intent.

CHAPTER-4 RELEVANT PROVISIONS

Section 95 of the Indian Evidence Act, 1872

22
41 Cal.2d 447. [L. A. No. 22581. In Bank. Aug. 25, 1953].

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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.
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 В had
been in possession since the execution of the deed.

These facts may be proved to show that the deed related to the house of Howrah.
Latent ambiguity is an ambiguity as to when the words used in the document are plain and
clear but their application to the existing facts is doubtful due to some mistakes arising out of
collateral facts related to the document. Thus the latent ambiguity is hidden ambiguity and
evidence can be given to remove the hidden defect.
According to the section the language used in the section is plain, but its application to the
existing facts creates problem. In such circumstances the court has to rely on outside
evidence to make the document more meaningful. Hence, extrinsic evidence can be given to
remove latent ambiguity of the document. The section is based on the maxim falsa
demonstration non nocet. It means that a false description does not vitiate the document23

Section 96 of the Indian Evidence Act, 1872

Evidence as to application of language which can apply to one only of several persons:

23
http://www.lawweb.in/2013/02/law-of-evidence-part-three.html Lvisited on 14 april, 2018.

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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.
Illustration:
(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 В to Hyderabad. Evidence may be given of facts showing whether
Hyderabad in the Dekkhan or Hyderabad in Sindh was meant.
Section 96 deals with another type of latent ambiguity. It is a modification of the rule of
Section 94. Where the language of the document is plain and is intended to apply more than
one persons or things to which the description applies, oral evidence can be given to clarify
the facts which show to which person or thing it was intended to apply. Illustrations (а) and
(b) show the meaning of it. Illustration (а) makes it clear that where A agrees to sell his white
horse to В at Rs. 1000/-. A has two white horses. Evidence can be given of facts which show
which of them was meant.
There can be no doubt that parole evidence as to the identity of a party to a deed is always
admissible, but in considering such evidence it is paramount importance to bear in mind the
indicata of identity afforded by the deed itself. When there is dispute on two dates regarding
admissibility of promissory note, evidence could be offered to show which date was meant24.

Section 97 of the Indian Evidence Act, 1872

Evidence as to application of language to one of two sets of facts, to neither of which the
whole correctly applies:
When the language used applies partly to one set 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.

24
http://www.shareyouressays.com/knowledge/section-97-of-the-indian-evidence-act-1872/120496 last visited
14 april, 2018.

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A agrees to sell to В “my land at X in the occupation of YA 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 sell25.
Section 97 is a third example of the latent ambiguity and an extended version of Section 95. It
is also based on the principle that “a false description does not vitiate a document.”
According to the section when the language of deed applies partly to one set of facts and
partly to another and that the whole of it does not apply to any one, the extrinsic evidence is
admissible. For example, A left his property to his children. A has no legitimate children, but
has illegitimate children. Evidence may be given of facts that A intended to give his property
to illegitimate children26.
Where there is dispute as between boundaries and area it is permissible to have recourse to
extrinsic evidence to gather real intention.

25
http://www.shareyouressays.com/knowledge/section-97-of-the-indian-evidence-act-1872/120496 last visited
on 14 april, 2018.
26
Ibid.

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 CHAPTER 4: CONCLUSION

Patent ambiguity refers to uncertainty on the face of a legal document. This gives the agreement or
contract an indefinite meaning. When a document includes a patent ambiguity, no external evidence
can show the testator's intention, which remains unclear. A patent ambiguity may invalidate an
agreement or contract.

Also known as intrinsic ambiguity, ambiguities patens, or Section 93 of the Indian Evidence Act,
patent ambiguity makes the intention behind a legal document unclear. Relying on the plain meaning
of the words doesn't allow for clear interpretation. Instead, the document's obscure or senseless
language makes its overall meaning ambiguous27.

This happens, for instance, when a contract includes two sale prices that contradict each other. Patent
ambiguities also arise in last wills and testaments, such as when a will doesn't state the gift for the
beneficiary or offers the gift to many beneficiaries. Courts often find that a last will with a patent
ambiguity is invalid. Most won't consider outside evidence to decide the meaning of the testator's
intent.

Patent ambiguities are different from latent ambiguities, or Section 95 of the Indian Evidence Act.
The latter happens when a document's language is clear. However, external evidence or information
means one could interpret it in at least two different ways28.

Common Mistakes

 Including either type of ambiguity in a legal document. When drafting a contract or

agreement, use language that is as clear and concise as possible without leaving out important
information. Doing this will make the document easier to understand and will remove
multiple interpretations.
 Assuming an ambiguity allows the court to rewrite the document in question. When
considering evidence to resolve an ambiguity, courts don't allow legal representatives to
rewrite or add words to a document. Instead, they may use evidence to interpret the testator's
intention only.
 Believing an attorney is liable for ambiguities. Courts have held attorneys liable for
omitting clauses from legal documents. However, lawyers are not liable for drafting
ambiguous documents.

27
http://www.shareyouressays.com/knowledge/section-93-of-the-indian-evidence-act-1872/120474 last visited on 14
april, 2018.
28
Ibid.
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S.93 deals with the Exclusion of evidence to explain or amend ambiguous document and reads as: -

When language used in a document is, on its face, ambiguous of defective, evidence may not be
given of facts which would show its meaning or supply its defect.

If the document had mentioned no price at all, oral evidence of the price would have been allowed
under S.92 as to a matter of the fact on which the document is silent but not when the document
mentions price of ambiguous nature. No extrinsic evidence can be given to remove patent defect.
Keshav Lal v Lal Bhai Tea Mills Ltd 29, 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 a 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 30. A contract for the sale
of a part of the land of 5 acres, described the part to be sold as “one acre of a front land.” It was held
that what constituted the “front land” for this purpose was ascertainable. There was no confusion
about the language used and, therefore, S.93 was not attracted31

Principle:

This section deals with the first principle of patent ambiguity. It cannot be explained under section 93
by oral evidence, but a latent ambiguity can be under section 96 of the Act. According to the section
an ambiguity is such that the document is on its face is unintelligible and such defect cannot be
removed. Where the document is ambiguous the language used in the document can decide the
question only and not by the parties by relying upon any extrinsic evidence. By application of the
rules of interpretation no definite meaning can be found.

The reason is that when the parties did not care to remove the defect then it is too late to remove it.
“Where a deed is ungrammatical and cannot be read literally to give any clear meaning, oral
evidence cannot be given to supply the defect.” It would not be open to the parties or the court to
attempt to remove the detect or vagueness or uncertainty by relying upon any extrinsic evidence.
Two Illustrations, viz. (a) and (b) give a clear picture of patent ambiguity.

S.94 deals with the Exclusion of evidence against application of document of existing facts and reads
as -: 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.

29
AIR 1958 S.C 512.
30
U.P. Govt v. Nanhoomal, AIR 1950 All. 420.
31
Kandamath Cine EEEnterprises P. Ltd. V. John Philipose, AIR 1990 Ker. 198.
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This section applies when the execution of the document has been admitted and no vitiating fact has
been proved against it. Where the document in question was a record 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 admissible32.

A section 93 to 98 lays down the rules as to interpretation of documents with the aid of extrinsic
evidence. It often happens that the language used in a document is ambiguous, and the question of
the admissibility of extraneous evidence comes up before the Court. Interpretation of a document
involves the ascertainment of the meaning of a document.

Commenting on this rule of evidence, it was observed in an English case (Shore v. Wilson,) 33, 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.”

32
General Court Enterprises P. Ltd v. John Philipose AIR 1990 ker 198
33
(1842) 9 CI & F 355
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 BIBLIOGRAPHY

● BOOKS:
1. Dhirajlal, Ratanlal. The Law of Evidence. Gurgaon: Lexis-Nexis, 2011
2. Krishnamachari, V. Law of Evidence. Hyderabad: S. Georgia & Company,
2012
3. Lal, Batuk. The Law of Evidence. Allahabad: Central Law Agency, 2007
4. Myneni, S.R. The Law of Evidence. Asian Law House, 2008
5. M.Monir, Law of Evidence (15th, Universal Law Publishing, New Delhi 2010)
115
6. Dr. V. N. Rao, The Indian Evidence Act (1st, LexisNexis Butterworths
Wadhwa, Haryana 2012)
7. Batuk Lal, The Law of Evidence (20th, Central Law Agency, 2013)
8. Sarkar, Law of Evidence (15th, Wadhwa and Company, 2001)
9. SudiptoSarkar, V.R Manohar, Law of Evidence, (16th, Universal Law
Publishing, New Delhi 2007,)

● INTERNET SOURCES:

 https://www.legalindia.com/acts/topic/section-93-of-indian-evidence-act
 http://www.lawweb.in/2013/02/law-of-evidence-part-three.html
 http://lawsubject.blogspot.in/2010/08/evidance-act.html
 https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/
&httpsredir=1&article=2161&context=penn_law_review

● STATUTES:

1. Indian Evidence Act of 1872

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