Ambiguities in documents

Ambiguities in documents

“Ambiguity means an uncertainty of meaning in which several interpretations are possible.”

“Ambiguity means something that does not have a single clear meaning” – Merriam-Webster dictionary.

Generally, there are two types of ‘ambiguity,’ viz.

  • Patent ambiguity;
  • Latent ambiguity;

Patent ambiguity is defined in Secs.93 and 94 of the Indian Evidence Act, 1872.

Sec.93: Exclusion of evidence to explain or amend ambiguous document:

“When the language used in a document is, on its face, ambiguous or defective, evidence may not be give of facts which would show its meaning or supply its defects.”

Illustration: A agrees, in writing, to sell a horse to B for Rs.1,000 or Rs.1500. Evidence cannot be given to show which price was to be given.

Sec.94: Exclusion of evidence against application of document to existing facts:

“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 meant to be sold was on situated at a different place and of a different size.

Latent ambiguity is defined in Secs.95 to 98 of the Indian Evidence Act, 1872.

Sec.95: Evidence as to document unmeaning in reference to existing facts:

“When language is 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 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. These facts may be proved to show that the deed related to the house at Howrah.

Sec.96: Evidence as to application of language which can apply to one only of several persons:

“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 agrees to sell to B, for Rs.1000 ‘my white horse’. A has two white horses. Evidence may be given of facts which show which of them was meant.

Sec.97: 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 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.98: Evidence as to meaning of illegible characters etc.

“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, sculptor, agrees to sell to B ‘all my models.’ A has both models and modeling tools. Evidence may be given to show which he meant to sell.

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First Appellate Court is the last court of ‘facts’

First Appellate Court is the last court of ‘facts’

Under Sec.96 of the Civil Procedure Code the first appellate court is the last court of ‘facts’.

Under Sec.100 of CPC, the High Court in second appeal, cannot interfere with the ‘findings of fact’ recorded by the first appellate court under Sec.96 of CPC.

No doubt the ‘finding of fact’ of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect.

In Gurvachan Kaur case the Supreme Court held that —

“It is settled law that in exercise of power under Sec.100 of CPC, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse.”

In Kulwant Kaur case the Supreme Court held that —

“Admittedly, Sec.100 of CPC has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stated vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication – what is required is a categorical finding on the part of the High Court as to perversity.”

Sec.103 of CPC which reads as follows:

“103: In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, —

(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Sec.100.”

The requirements stated specified in Sec.103 and nothing short of it will bring it within the ambit of Sec.100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law.

Operation of Transfer

Operation of Transfer:

(Sec.8 of the Transfer of Property Act 1882)

“Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.

Such incidents include,–

Where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth;

Where the property is machinery attached to earth, the movable parts thereof;

Where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith;

Where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer.

Where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.

Arbitration

Arbitration

The Supreme Court in Guru Foundation Rattan and sons, 1981 (4) SCC 634, observed as,

“Interminable, time consuming, complex and expensive court procedures implied jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap and this led them to Arbitration Act, 1940 (Act for short).

However, the way in which the proceedings under the Act are conducted and without an exception challenged in Courts, has made lawyers laugh and legal philosophers weep.

Experience shows and law reporters bear ample testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary.

Informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the Courts been clothed with “legalese” of unforeseeable complexity. This case amply demonstrates the same.”

Vested Interest

Vested Interest in property transfers


 

Sec.19 of the Transfer of Property Act, 1882.

Sec.19 Vested Interest:

“Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.”

A vested interest is not defeated by the death of the transferee before he obtains possession.

Contingent Interest

Contingent Interest in property transfers


 

Sec.21 of the Transfer of Property Act, 1882

Sec.21 Contingent Interest:

“Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible.”

“Desertion is a ground for divorce”

“Desertion is a ground for divorce”


 

The Madras High Court had an occasion to discuss the five essential factors which must be established under Sec.13(1)(i-b) of the Hindu Marriage Act 1955 to succeed in the petition for divorce on the ground of desertion are as follows:-

  • The spouses must have parted or terminated all joint life;
  • The deserting spouse must have an intention to desert the other spouse;
  • The deserted spouse must not have agreed to the separation;
  • The desertion must have been without cause;
  • This state of affairs must be continued for at least two years immediately preceding the presentation of the petition.

(see 1997 (III) CTC 718)

In T.Rangaswami v. T.Aravindammal, AIR 1957 Mad 243, while dealing with the scope of the said section, Ramasamy, J., has held as follows:-

“In certain circumstances the deserting spouse may not be the person who actually leaves the matrimonial home. The actual parting may be due to the deserted spouse making continued joint life impossible and thus compelling the deserted spouse to leave the matrimonial home. In such cases the actual abandoning of the matrimonial home is not the act of the person against whom all allegation of desertion is made, but the act of the person making the allegation. The test by which the offence is judged is not the abandoning of the matrimonial home, but the fact that the other party has caused such abandonment by his actions, since he must be taken to intend the consequence of such actions. If it is a natural consequence of the behavior of one spouse that the other will leave the matrimonial home, the offending spouse must be presumed to have intended that this should happen. Cases in which the parting of the spouses has arisen in these circumstances are sometimes called “constructive” desertions.

The desertion may be terminated in the following ways:

  • By resumption of cohabitation between the spouses;
  • By the desertion becoming a separation of the spouses by agreement;
  • By the deserted spouse refusing a genuine offer made by the deserting spouse to resume cohabitation;
  • By the deserting spouse becoming insane.”

 

 

“All Trustees shall act collectively”

“All Trustees shall act collectively”


 

In Narayanan Iyer’s Indian Trust Act 4th Edition (1992) the learned author has said thus:-

Managing Trustees:- Where there are more than one trustee, Section 48 of the Act lays down that all of them must join since one of them cannot act singly. Accordingly managing trustees have no power to create lease without concurrence of other trustees. See Abdul Rahman v. Angul Bala, AIR 1974 Cal. 16.

If all the trustees do not join in execution of the conveyance of the trust property, the conveyance is invalid and such a conveyance passed no title to the alienee. All trustees from one collective trustee and must exercise powers in joint capacity and not separately. Vide Supreme Court in Janakirama Iyer v. Nilakanta Iyer, AIR 1962 SC 633.

Consequently, a lease is transfer within the meaning of Section 15 of the Transfer of Property Act, created by one of the co-trustees is bad in law and does not convey any right, title or interest to the lessee defendant and he becomes a trespasser. See M/s. Karnataka Trader, Hubli v. Hiren Shamji, AIR 1987 Kar. 264.

Marriage is one of the necessary ‘samaskaras’

Marriage is one of the necessary ‘samaskaras or religious rites’


The Division Bench of Madras High Court in Devulapalli Kameswara Sastri and others v. Polavarapu Veeracharlu, minor by his guardian Kodamachi Bhimanna, ILR 34 Mad. 422 has held thus:-

“The marriage of a member of the coparcenary is a family purpose; and where it is reasonably necessary on the part of a prudent manager to borrow money for such purpose, the transaction will bind the coparcenary whether they are Sudras or other classes.

Marriage is one of the necessary samaskaras or religious rites, in the case of Sudras as well as other classes. The necessity, which will justify an alienation by the manager is not to be understood in the sense of what is absolutely indispensable but what according to the notions of a Hindu family would be regarded as reasonable and proper.”

In G.Gopalakrishnam Razu, minor by mother Bangaratta v. S.VEnkatanarasu Razu and 3 others, ILR 37 Mad. 273 a Full Bench of Madras High Court has concluded in the following manner:

“Marriage is obligatory on Hindus who do not desire to adopt the life of a perpetual Brahmachari or of a Sanyasi and debts reasonably incurred for the marriage of a twice born Hindu male are binding on the joint family properties.”

In another Full Bench judgment of the Madras High Court in D.Srinivasa Iyengar v. Thiruvengadathaiyangar, ILR 38 Mad. 556 wherein the majority view is as follows:

“Marriage is an obligatory ceremony for Hindus who do not desire to adopt the life of a Sanyasi; and a fund for the expenses of the marriage of unmarried co-sharers should be set apart at the partition of the paternal estate.”

 

Christian Inheritance

Christian Inheritance under the Indian Succession Act 1925


Sec.33: The Indian Succession Act 1925

  1. Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred. -Where the intestate has left a widow—

(a) if he has also left any lineal descendants, one-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained;

(b) 1*[save as provided by section 33A], if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained;

(c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow.