Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule

Saji Koduvath, Advocate, Kottayam.

Abstract

•➧  Three rules of Interpretation of Statutes and Documents.
               ••   1. Literal rule – words are taken in its plain meaning.
               ••   2. Mischief rule – gives effect to its intention.
               ••   3. Golden rule – when lack of clarity, apt meaning given by interpretation.
•➧  Oral admissions as to contents of documents are not relevant (Sec. 22)
•➧  The law requires production of Document itself (Sec. 91); .
No oral evidence can be given –
              •(i) for varying, adding to, etc. its terms (S. 92).
              •(ii) to explain a document, on its face, ambiguous (S. 93).
              •(iii) to show a plain document not meant to apply such facts (S. 94).
Evidence can be given when –
              •(i) language of a document, plain in itself, but it is unmeaning in reference to existing facts – evidence may be given to show that it was used in a peculiar sense (S. 95).
              •(ii) language used – meant to apply to more – evidence may be given to show which of those persons or things was intended (S. 96).
              •(iii) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets (S. 97).
              •(iv) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets (S. 97).
              •(v) Evidence can be given to show meaning of illegible or technical words -used in a peculiar sense (S. 98).

PART I

THREE RULES OF INTERPRETATION

There are three rules of Interpretation of Statutes and Documents. They are:

Literal rule,
Mischief rule, and
Golden rule.

The Literal rule

It applies to the interpretation of Statutes and all Instruments.

According to this rule, the words in the statute or the document are taken in its literal or plain meaning. It is also called the ‘plain meaning rule or Grammatical Rule’.

This rule can be applied only when the language in the statute or the document renders only one meaning, and the intention of the legislature or author is unambiguous and completely clear. When a court has to give effect to the statute or document, it has to simply give effect to the language of the statute or document and it need not look into the consequences that may be arisen therefrom.

Several Courts in India (mistakenly) consider and use the Golden Rule of interpretation in place of Literal Rule of interpretation.

THE GOLDEN RULE

It is a deviation from the literal rule. It also applies to the interpretation of Statutes and all Instruments.
It applies when literal rule fails for the words used by the author of a document or legislature could not be given their natural meaning for, its lack of clarity, or it renders another meaning also.
In such cases the apt meaning is given by interpretation, modifying the meaning of the absurd term, or choosing one meaning from more than one meaning.
But, in certain decisions, it is observed that the Golden Rule of Interpretation is “the interpretation in conformity with the plain language” of the statute. (See: M/S Patil Automation Private Ltd. v. Rakheja Engineers Private Ltd., AIR 2022 SC 3848, 2022-10 SCC 1). In this view of the matter, this rule essentially gives effect to the literal or ordinary meaning of the words choosing one meaning from more than one meaning or modifying (slightly) the meaning of the absurd term.

Grey v. Pearson, 1857

The golden rule of interpretation was propounded for the first time by Lord Wensleydale, in Grey v. Pearson, 1857 (6) HLC 61, in the construction of a Will. (See: Ms. Eera Through Dr. Manjula v. State (Govt. of NCT of Delhi), (2017) 15 SCC 133).
It requires giving effect to the actual meaning of the words used in statutes and other documents. This rule gives effect to the literal or ordinary meaning of the words used.

In Grey v. Pearson, 1857 (6) HLC 61, Lord Wensleydale declared as under:

“I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. This is laid down by Mr. Justice Burton, in a very excellent opinion, which is to be found in the case of Warburton v. Loveland.”

The Mischief Rule (Purposive Construction Rule)

It applies basically to the interpretation of Statutes; and not to (private) documents. The aim of this rule is to cure or prevent the mischief of the language in a statute, and give effect to its intention or purpose. Therefore, it is called purposive construction rule.

Heydon’s case, (1584)

The mischief rule, called Heydon’s rule, is originated by Lord Poke in Heydon’s case, (1584) 3 Co Rep 7a: (1584) 76 ER 637. As per this rule, the meaning and purport of the statute or document is explored and interpreted in that way. The rule of purposive interpretation was articulated in Heydon’s case in the following terms:

“for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
- 1st. What was the common law before the making of the Act.
- 2nd. What was the mischief and defect for which the common law did not provide.
- 3rd. What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth.
- And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico” (Quoted in: X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917)

Smith v. Huges, 1960 WLR 830

In 1959, the Street Offences Act was enacted in the UK with a view to prohibit prostitutes from soliciting public passing on the roads. Thereon, the prostitutes started soliciting from balconies and windows of the buildings by the side of the roads. The prostitutes were charged under the Act. The courts applied the mischief rule of interpretation and gave effect to the intention of the Act.

Kanwar Singh v. Delhi Administration, AIR 1965 SC 871

Facts of the case were as follows- Delhi Corporation Act, 1902 authorised the corporation to round up the abandoned cattle grazing on the government land. The MCD rounded up the cattle belonging to Kanwar Singh. It was contended by Kanwar Singh that the word abandoned means the loss of ownership and those cattle which were round up belonged to him and hence, was not abandoned. The court held that the mischief rule had to be applied and the word abandoned must be interpreted to mean let loose or left unattended and even the temporary loss of ownership would be covered as abandoned.

Golden Rule of Interpretation Covers Wills, Statutes and Instruments

After quoting Grey v. Pearson, 1857 (6) HLC 61, it is observed in Ms. Eera Through Dr. Manjula v. State (Govt. Of NCT of Delhi), AIR 2017 SC 34577, as under:

“This celebrated passage has since come to represent what has been described as the ‘Golden Rule’ of interpretation of statutes. The construction of a clause in a will was before the House of Lords and not the construction of a statute. Nevertheless, the “Golden Rule” was held to cover the construction of wills, statutes and all other written instruments.”

In Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609, a three-judge Bench of our Apex Court held as under:

“231. During the last several years, the “golden rule” has been given a go-by. We now look for the “intention” of the legislature or the “purpose” of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.” (Quoted in: X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917; Indian Handicrafts Emporium v. Union of India, 2003-7 SCC 589, National Insurance Co. Ltd. v. Laxmi Narain Dhut, 2007-3 SCC 700)

Lee v. Knapp, (1967) 2 QB 442.

In this case, it was required to interpret the world ‘stop’. Under the relevant Act, a driver causing an accident had to ‘stop’ after the accident. But, the driver in this case stopped the vehicle for a moment after causing the accident and then moved away. Applying the golden rule the Court held that requirement of the section had not been followed for the driver did not ‘stop for a reasonable period of time’ and made an attempt to look for the interested persons to make necessary inquiries for him about the accident.

U. P. Bhoodan Yagna Samiti v. Brij Kishore, AIR 1988 SC 2239

In this case Section 14 of the U.P Bhoodan Yagna Act, 1953 had to be interpreted. This Section provided land for “landless person”. It was interpreted as the “landless agricultural labourers” though the Section did not specify that such landless persons should be agricultural labourers or whose source of livelihood should be agriculture; and source of livelihood of those persons should not be trade and business.

Our Apex Court, in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, held as under:

“67. While interpreting any statutory provision, it has always been accepted as a Golden rule of Interpretation that the words used by the legislature should be given their natural meaning. Normally, the courts should be hesitant to add words or subtract words from the statutory provision. An effort should always be made to read the legislative provision in such a way that there is no wastage of words and any construction which makes some words of the statute redundant should be avoided. No doubt, if the natural meaning of the words leads to an interpretation which is contrary to the objects of the Act or makes the provision unworkable or highly unreasonable and arbitrary, then the courts either add words or subtract words or read down the statute, but this should only be done when there is an ambiguity in the language used.” Quoted in: V. Senthil Balaji Vs. The State represented by Deputy Director (2023)

Advantages of Golden rule

This rule simply puts the words in the statute or deed work. It is destined to operate in between ‘literal interpretation’ and ‘mischief-rule interpretation’.
It gives effect to the words used by the legislature or author, in its ordinary meaning; but, picking up the most sensible and apt meaning to the words used the statute or deed – susceptible to more than one meaning.
Applying the Golden Rule, one can deviate from the meaning of words given previously, if it is susceptible to more than one meaning.
Drafting errors in status and documents can be corrected without much effort.

Disadvantage of Golden Rule

There is no definite frame-work or guidelines.
It is susceptible for change according to the interpreter or court, if it is accommodative of more than one meaning.

PART II

Interpretation of documents involves questions of law

In Sir Chunilal V. Mehta v. The Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, it is observed as under:

“Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law.”

In Hero Vinoth Minor v. Seshammal, AIR 2006 SC 2234, it is observed as under:

“It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 CPC. If a document creating an easement by grant is construed as an ‘easement of necessity’ thereby materially affecting the decision in the case, certainly it gives rise to a substantial question of law.”

In Bhikan Sk. Noor Mohd v. Mehamoodabee Sk. Afzal, (2017) 5 SCC 127 : AIR 2017 SC 1243, it is laid down as under:

“When the Court is called upon to interpret the documents and examine its effect, it involves questions of law. It is, therefore, obligatory upon the High Court to decide such questions on merits. In this case, the High Court could do so after framing substantial questions of law as required under Section 100 of the Code.”

Interpretation of Documents – as provided under Evidence Act

Odgers’ “Construction of Deeds and Statutes” (5th ed. 1967) states the following as the First General Rule of Interpretation:

“The meaning of the document or of a particular part of it is therefore to be sought for in the document itself”.

Referring the above, it is held in Delhi Development Authority v. Durga Chand Kaushish, AIR 1973 SC 2609, as under:

“That is, undoubtedly, the primary rule of construction to which Sections 90 to 94 of the Indian providence Act give statutory recognition and effect with certain exceptions contained in Sections 95 to 98 of the Act. Of course, “the document” means “the document” read as a whole and not piecemeal.”

Produce Document itself

(i) Oral admissions as to contents of documents are not relevant (Sec. 22); The law requires production of Document itself (Sec. 91); .

No oral evidence can be given –

(ii) for varying, adding to, etc. its terms (S. 92).
(iii) to explain a document, on its face, ambiguous (S. 93).
(iv) to show a plain document not meant to apply such facts (S. 94).

Evidence can be given when –

(v) language of a document, plain in itself, but it is unmeaning in reference to existing facts – evidence may be given to show that it was used in a peculiar sense (S. 95).
(vi) language used – meant to apply to more – evidence may be given to show which of those persons or things was intended (S. 96).
(vii) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets (S. 97).
(viii) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets (S. 97).
(ix) Evidence can be given to show meaning of illegible or technical words -used in a peculiar sense (S. 98).

Interpretation of Will – Provisions of Law

(i) Sec. 91 to 99 of the Evidence Act do not affect construction of wills (S. 100).
(ii) Sec. 74 of the Indian Succession Act, 1925, contains the armchair rule. It conveys – intention of the testator is important.

Odgers Rules

Odgers Rules, supra, (known as golden rules of interpretation) are the following:

1. The meaning of the document or of a particular part of it is therefore to be sought for in the document itself.
2. The intention may prevail over the words used
3. words are to be taken in their literal meaning
4. literal meaning depends on the circumstances of the parties
5. When is extrinsic evidence admissible to translate the language?
6. Technical legal terms will have their legal meaning.
7. Therefore the deed is to be construed as a whole. Apart from the said seven rules listed by Odger, it would be convenient to list the following rules for the sake of convenience are called additional rules and given number in continuation:
8. Same words to be given the same meaning in the same contract.
9. Harmonious construction must be placed on the contract as far as possible. However, in case of conflict between earlier or later clauses in a contract, later clauses are to be preferred to the earlier; while in a will, earlier clause is to be preferred to the later.
10. Contra Proferendum Rule-If two interpretations are possible, the one favourable to the party who has drafted the contract and the other against him, the interpretation against that party has to be preferred.
11. If two interpretation of a contract are possible the one which helps to make the contract operative to be preferred to the other which tends to make it inoperative.
12. In case of conflict between printed clauses and typed clauses, type clauses are to be preferred. Similarly, in conflict between printed and hand written clauses, hand written clauses are to be preferred and in the event of conflict between typed and hand written clauses, the hand written calluses are to be preferred.
13. the special will exclude the general.
14. Rule of expression unius est exclusion alterius.
15. Rule of noscitus a souciss.
16. Ejusdem generic rule will apply both the contract and statute.
17. place of Punctuation in interpretation of documents.

No statutory rules to interpret any document

In P. Madhusudhan Rao v. Lt. Col. Ravi Manan, 2015-4 ALD 409, it was observed as under as to interpretation of a document-

Intention of the executant of a document has to be ascertained by reference to the words used to express it.
Unexpressed intention has not to be considered, but courts can consider presumed intention while interpreting a document.
The Court has to ascertain the intention of the parties based on the language used in the document.
There are no statutory rules to interpret any document.

Primary rule of construction in Evidence Act

The Supreme Court, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, has noticed Odgers Rules, in “Construction of Deeds and Statutes”, and quoted the First General Rule of Interpretation which reads as under:

“The meaning of the document or of a particular part of it is therefore to be sought for in the document itself”.

Give effect to words used, and Not to the presumed intention

Our Apex Court, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, further pointed out that ‘the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect’ and with certain exceptions contained in Sections 95 to 98 of the Act, “the document” means “the document” ‘read as a whole and not piecemeal’. Then the Apex Court observed as under:

“The rule stated above follows logically, from the Literal Rule of Construction which, unless its application produces absurd results must be resorted to first. This is clear from the following passages cited in Odgers’ short book under the First Rule of Interpretation set out above: Lord Wensleydale in Monypenny v. Monypenny(1) said: “the question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregards of which often leads to erroneous conclusions.”
Brett, L.J., in Re Meredith, ex p. Chick ([1879] 11 Ch. D. 731) observed: “I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke… They said that in construing instruments you must have, regard not to the presumed intention of the parties, but to the meaning of the words which they have used.”

Earlier words of deed, or main purpose accepted (rejecting uncertain words)

It is further laid down in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, as under:

“Assuming, however, that there is some conflict between an earlier part of the deed containing a demise of land clearly for a period of 90 years on an annual rent of Rs. 365, and the proviso of covenant No. 9, annexed to the demise, in a later part of the deed, which cannot be resolved without discarding or disregarding some word or words, the respondent’s counsel contended that the earlier words of demise, consistently supported by the contents of other parts of the deed, should prevail over the inconsistency found in the proviso to one of the conditions in the later part of the deed. He relied for this proposition on : Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Rao Dhabel Deo [1960] 3 SCR 604); Ramkishore Lal v. Kamal Narian([1963] Supp. 2 SCR v. 417); Forbes v. Git ([1922] 1 AC 256).
We think that the proviso to covenant No. 9 could be said to suffer from the vice of an uncertainty which can only be removed by ignoring the words creating this uncertainty. We think that, in such a case, the ambiguous words can be disregarded so that the terms of the earlier operative part of the demise, which are clear, must prevail. Learned Counsel for the respondent also relied on the following passsage from Glyn and Ors. v. Margetson & Co.( [1893] A. C. p. 351) in the judgment of Lords Halsbury :
“Looking at the whole of the instrument, and seeing that one must regard, for a reason which I will give in a moment, as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.“

Gant to be construed in favour of the grantee

In Smt. Bina Das Gupta and Others v. Sachindra Mohan Das Gunta, AIR 1968 SC 39, the following statement of law in Stavill Eros., Ltd. v. Bethell ([1902]-2 Ch. 523) , by Sterling L.J., was cited with approval (as observed in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609) –

“It is a settled rule of construction that where there is a grant and an exception out of it, the exception is to be taken as inserted for the benefit of the garntor and to be construed in favour of the grantee. If then the grant be clear, but the exception be so framed as to be, bad for uncertainty, it appears to us that on this principle the grant is operative and the exception fails.”

The construction which give effect to all the clauses be adopted

It is further observed in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, as under:

Another rule which seems to us to be applicable here was thus stated by this Court in Radha Sunder Dutta v. Mohd. Jahadur Rahim (AI R 1959 SC 24): “Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim ut res magis valeat quam pereat”

In P. Madhusudhan Rao v. Lt. Col. Ravi Manan, 2015-4 ALD 409, after referring the Supreme Court decision, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, it is observed as under:

“As the observation of the Supreme Court (Delhi Development Authority v. Durga Chand) have the force of law of the land, it may be taken Odgers Rules (known as golden rules of interpretation) have been judicially recognized and may be adopted as Rules for interpretation of the documents in India.
These Rules are listed hereunder:
1. The meaning of the document or of a particular part of it is therefore to be sought for in the document itself.
2. The intention may prevail over the words used
3. words are to be taken in their literal meaning
4. literal meaning depends on the circumstances of the parties
5. When is extrinsic evidence admissible to translate the language?
6. Technical legal terms will have their legal meaning.
7. Therefore the deed is to be construed as a whole.

Apart from the said seven rules listed by Odger, it would be convenient to list the following rules for the sake of convenience are called additional rules and given number in continuation:

8. Same words to be given the same meaning in the same contract.
9. Harmonious construction must be placed on the contract as far as possible. However, in case of conflict between earlier or later clauses in a contract, later clauses are to be preferred to the earlier; while in a will, earlier clause is to be preferred to the later.
10. Contra Proferendum Rule- If two interpretations are possible, the one favourable to the party who has drafted the contract and the other against him, the interpretation against that party has to be preferred.
11. If two interpretation of a contract are possible the one which helps to make the contract operative to be preferred to the other which tends to make it inoperative
12. In case of conflict between printed clauses and typed clauses, type clauses are to be preferred. Similarly, in conflict between printed and hand written clauses, hand written clauses are to be preferred and in the event of conflict between typed and hand written clauses, the hand written calluses are to be preferred
13. the special will exclude the general
14. Rule of expression unius est exclusion alterius
15. Rule of noscitur a sociis
16. Ejusdem generis rule will apply both the contract and statute
17. place of Punctuation in interpretation of documents”.

Ejusdem Generis & Noscitur a Sociis

Ejusdem Generis is the principle of interpretation of applying meaning to a doubtful word or words taken from the associated words. Usually this principle is applied when doubts are arisen whether the word or words fall within the general words like – other articles, etc., such things, similar acts, etc.

The ejusdem generis is explained in Halsbury’s Laws of England as under:

“As a rule, where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, although this, as a rule of construction; must be applied with caution, and subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament. For the ejusdem rule to apply, the specific words must constitute a category, class or genus; if they do constitute such a category, class or genus, then only things which belong to that category, class or genus fall within the general words.”

Our Apex Court, in DN Singh v. Commissioner of Income Tax (2023), the question came for consideration was whether ‘bitumen’ (used for tarring roads) would fall under “other valuable article” stated in “any money, bullion, jewellery or other valuable article” in Section 69A of the Income Tax. Section 69A reads as under:

“69A. Unexplained money, etc. – Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and … not recorded in the books of account, … may be deemed to be the income of the assessee for such financial year.”

It was held in DN Singh v. Commissioner of Income Tax (2023) that ‘bitumen is not a valuable article’ when the Principle of Ejusdem Generis is applied.

Noscitur a Sociis is a rule is broader than the maxim ejusdem generis. It contains the basic philosophy that the meaning of a doubtful word is ascertained by reference to the meaning of words associated with it. [In practice, it is seen that ‘ejusdem generis’ is applied when words like – other articles, etc., such things, similar acts, etc. are used; and ‘Noscitur a Sociis‘ is used even if those words are not used.]

Intention of the parties looked into When there is ambiguity

In P. Madhusudhan Rao v. Lt. Col. Ravi Manan, 2015-4 ALD 409 after quoting the above rules, it is observed as under:

“From the Rules stated above, when the language used in a document is unambiguous conveying clear meaning, the Court has to interpret the document or any condition therein taking into consideration of the literal meaning of the words in the document. When there is ambiguity, the intention of the parties has to be looked into. Ordinarily the parties use apt words to express their intention but often they do not. The cardinal rule again is that, clear and unambiguous words prevail over the intention. But if the words used are not clear or ambiguous, intention will prevail. The most essential thing is to collect the intention of the parties from the expressions they have used in the deed itself. What if, the intention is so collected will not secure with the words used. The answer is the intention prevails. Therefore, if the language used in the document is unambiguous, the words used in the document itself will prevail but not the intention.”

Words in the Instruments Matters; Not to the Presumed Intention

Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:

“I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: VS Talwar v. Prem Chandra Sharma, AIR 1984 SC 664; Damodaram Pillai v. Dhanalakshmi Ammal, (1981) 1 MLJ 171; Thomas v. AA Henry, 2008(2) KLT 63.)

Vague and uncertain descriptions rejected; definite and certain, preferred

The Kerala High Court held in Velu v. Padmavathy Amma (1983 KLN 38 Case No.39), as under:

“According to learned counsel for the appellants, when there is conflict in description by measurements and boundaries, measurements prevail over boundaries while according to learned counsel for the respondents, the contrary is the correct position. I have been referred in this connection to the following decisions : Zamindar of Pahipenta vs. Maharajah of Jeypore (XXIII M.L.J. 97) Subbayya Chakkiliyan vs. Manjan Muthia Goundan and another (A.I.R. 1924 Mad. 493), Durga Prasad Singh vs. Rajendra Narain Bagehi (I.L.R. 37 Cal. 293), Kumara Krishnan vs. Ulahannan Mathai (1957 K.L.T. 42), Chacko Joseph vs. Varghese Markose (1957 K.L.T. 485), Savarimuthu Nadar Chellayyan Nadar vs. Kanakku Rali Pillai Padmanabha Pillai (1957 K.L.T.825) and Krishnamurthy Iyer vs. Janaki Amma (1957 K.L.T. 886).
A golden thread runs through all the decisions referred to above. A piece of land may be described in the document or decree correctly or wrongly. Description may be given by reference to village, locality, survey number, lekhom number, extent, measurements or boundaries. At times, descriptions may tally pointing unerringly to a particular plot of land in which case there will be no difficulty in locating the plot. Sometimes the various descriptions given in a document or decree may be in conflict with each other. In such a case, the court is called upon to adjudicate on the identity of the exact plot intended to be dealt with in the document or decree. No doubt, the court will at first try to reconcile the various descriptions. If that be not possible, one or more of the descriptions may have to be rejected and the other decision rested only on the other description or descriptions. When one of the descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred. If none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identified the subject matter of the transaction and the other descriptions must be rejected as erroneous or inaccurate. This is not a rule of law and therefore is not inflexible in character; it is a mere rule of construction which appears to be safe and almost an infallible guide.” (Quoted in Chandrakumar vs Narayana Bahuleyan, 2011(3) KLT 185.)

Court cannot look intention when document applies squarely to existing facts

Smt. Kamala Devi v. Takhatmal, (1964) 2 SCR 152, dealt with the interpretation of a surety bond. The Court relied upon Sec. 94 of the Indian Evidence Act and found no reason to look for the intention of the parties, since the clear and express words in the bond applied squarely to the existing facts. The Court held as under:

“Sometimes when it is said that a Court should look into all the circumstances to find an author’s intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. But if the words are clear in the context of the surrounding circumstances, the Court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)

Sec. 91 and 92 – Best Evidence Rule

Sec. 91 and 92 provides that when 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, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded.

Both Sec. 91 and 92 are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6 SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7 SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).

The Supreme Court held in Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418, as under:

“The grounds of exclusion of extrinsic evidence are
(i) to admit inferior evidence when law requires superior would amount to nullifying the law,
(ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”

In Bhima Tima Dhotre v. The Pioneer Chemical Co. (1968) 70 Bom LR 683, it is observed as under:

“Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. That, however, is not the position under the Evidence Act. … Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”

However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106).

The word ‘disposition’ is not a ‘term of law’

It is observed in Pushpalatha NV v. V Padma, AIR 2010 Kant 124, that the word ‘disposition’ is not a ‘term of law’. It is said as under:

“The term ‘disposition’ has been defined in Stroud’s Judicial Dictionary as a devise ‘intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law’ and ‘includes transfer and change of property. The word ‘disposition’ means giving away or giving up by a person of something which was his own. It is not a term of law. In has no precise meaning. Its meaning has to be gathered from the context in which it is used. The word ‘disposition’ in relation to property means disposition made by deed or will and also disposition made by or under a decree of a court. The word ‘disposition’ would ordinarily be used in reference to a written document and not to the effect of that document. The removal of a thing from one’s self is involved in a disposal. The disposition is the provision creating the interest, not the interest itself. Therefore, disposition means a plan or arrangement for the disposal, distribution of something; definite settlement with regard to some matter.”

Patent ambiguity and latent ambiguity

Patent ambiguity is that inherent in the words. Extrinsic evidence is inadmissible in such cases.

Sec. 93 and 94 of the Evidence Act deal with cases of patent ambiguity and Sec. 95 to 98 deal with cases of latent ambiguity.

Patent Ambiguity	Latent Ambiguity
Ambiguity On the Face	Hidden Ambiguity. Words of the instrument clear, but their application to the circumstances doubtful.
S. 93 and 94	S. 95 to 98
No oral evidence permitted	Oral evidence permitted Ambiguity is disclosed only when explored with extrinsic evidence. Therefore, the ambiguity is allowed to be removed by same means.
Makes the document useless. Ambiguity cannot be removed by legal construction or evidence.	Can remove its ambiguity by Oral evidence.
# Sell a horse to B for “Rs. 1,000 or Rs. 1,500” (Illustration- Sec. 93). # Deed contains blanks (Illus. – Sec. 93). # Sells estate at Rampur. No evidence another place (Illustration- Sec. 94).	# Sells house in Calcutta. No house in Calcutta. Can show at Howrah (Illus. – Sec. 95). # Sells white horse. Two white horses. Can show which (Illus. – Sec. 96). # Evidence be given Hayatabad in Dekkhan or Sind (Illus. – Sec. 96). # Sells B land at X occupation of Y. A has land at X, but not in occupation of Y, and he has land in occupation of Y not at X. Evidence be given which he meant to sell (Illus. – Sec. 97). # A sells “all my mods”. A has both models and modelling tools. Evidence may be given to show which he meant to sell (Illus. – Sec. 98).

“Patent Ambiguity”

After referring Smt. Kamala Devi v. Takhatmal, (1964) 2 SCR 152, it is observed in Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308 that the principle contained in Sec. 94 of the Evidence Act is that extrinsic evidence is inadmissible in cases of “patent ambiguity”, and that this principle is “fundamental to Indian jurisprudence.”

A “patent ambiguity” is explained in Starkie on Evidence as under:

“By patent ambiguity must be understood an ambiguity inherent in the words, and incapable of being dispelled, either by any legal rules of construction applied to the instrument itself, or by evidence showing that terms in themselves unmeaning or unintelligible are capable of receiving a known conventional meaning, the great principle on which the rule is founded is that the intention of parties, should be construed, not by vague evidence of their intentions independently of the expressions which they have thought fit to use, but by the expression themselves. … By patent ambiguity, therefore, must be understood an inherent ambiguity, which cannot be removed, either by the ordinary rules of legal construction or by the application of extrinsic and explanatory evidence, showing that expressions, prima facie, unintelligible, are yet capable of conveying a certain and definite meaning.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)

“Latent Ambiguity”

On the other hand, a “latent ambiguity” is described in Woodroffe and Ali’s Law of Evidence, as follows:

“Latent ambiguity, in the more ordinary application, arises from the existence of facts external to the instrument, and the creation by these facts of a question not solved by the document itself. A latent ambiguity arises when the words of the instrument are clear, but their application to the circumstances is doubtful; here the ambiguity, being raised solely by extrinsic evidence, is allowed to be removed by the same means. In strictness of definition, such cases, as those in which peculiar usage may afford a construction to a term different from its natural one as can be seen in s 98, would be instances of latent ambiguity, since the double use of the term would leave it open to the doubt in which of its two senses it was to be taken. It is not, however, to this class of cases that reference is now made, but to those in which the ambiguity is rather that of description, either equivocal itself from the existence of two subject matter, or two persons, both falling within its terms as can be seen in s 96, or imperfect when brought to bear on any given person or thing as per ss 95 and 97.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)

No mention of Price in Contract, but “crucial” emails – Whether Sec. 94 Bar Applies?

Though Sec. 94 applies only when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense. Where no mention of the price at which coal was to be supplied, and there were three “crucial” emails, in Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308, it was held as under:

“These emails must be read as part of the entirety of the correspondence between the parties, which would then make the so-called “admissions” in the aforementioned emails apply to existing facts. Once this is done, it is clear that there is no scope for the further application of the “patent ambiguity” principle contained in section 94 of the Evidence Act, to the facts of the present case.”
In Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308t it was held to be a latent ambiguity comes under Sec. 95 of the Evidence Act, read with proviso (6) and illustration (f) to Sec. 92; and therefore, evidence can be led to show the peculiar sense of such language. It is pointed out that this approach is reflected in a recent judgment of this Court in Transmission Corpn. of Andhra Pradesh Ltd. v. GMR Vemagiri Power Generation Ltd., (2018) 3 SCC 716, where it was observed as under:
“21. In the event of any ambiguity arising, the terms of the contract will have to be interpreted by taking into consideration all surrounding facts and circumstances, including correspondence exchanged, to arrive at the real intendment of the parties, and not what one of the parties may contend subsequently to have been the intendment or to say as included afterwards, as observed in Bank of India v. K. Mohandas [Bank of India v. K. Mohandas, (2009) 5 SCC 313] : (SCC p. 328, para 28)
“28. The true construction of a contract must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract affect the true effect of the clear and unambiguous words used in the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the intention of the parties.”” (page 727).

Admission of Contents of Document in Pleadings

In Perumal Chettiar v. Kamakshi Ammal, AIR 1938 Mad 785, (1938) 2 MLJ 189, it is observed, as to pleadings, as under:

“The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 (596) : 32 E.R. 1215 (1220) and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488), because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918) 35 M.L.J. 555 : I.L.R. 42 Mad. 41 (F.B.))
This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”

Irreconcilable inconsistency between two specific clauses

In case of documents like sale deeds, gift deeds, mortgage deeds also, if the apparently appearing inconsistency can be reconciled, the court will take that recourse.

But, if the inconsistency is irreconcilable, the earlier or the subsequent part or specific clauses, the earlier part will prevail over the latter; but, in case of a Will, latter part will prevail, under Sec. 88 of the Succession Act. (Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321.)

Interpretation of Contracts

In Provash Chandra Dalui v. Biswanath Banerjee, 1989 Supp (1) SCC 487, it is observed as under:

” ‘Ex praecedentibus et consequentibus optima fit inter-pretatio.’
The best interpretation is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected ‘ex antecedentibus et consequentibus;’ every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible.
As Lord Davey said in N.E. Railway v. Hastings, [1900] A.C. 260 (267),
“The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible.”
In construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter to which it was designed and intended they should apply.”

In Bharat Coking Coal Ltd. v. AMR Dev Prabha 2020 SCC OnLine SC 335, it is pointed out that ‘it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes’. (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)

Contractual interpretation ought not to have been grounds for the Constitutional Court (High Court) (See: Bharat Coking Coal Ltd. v. AMR Dev Prabha, 2020 SCC OnLine SC 335; Agmatel India Private Limited v. M/S Resoursys Telecom, AIR 2022 SC 1103)

Tender – If two interpretations possible, the interpretation of the author be accepted: In Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, it is held as under:

“The authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.” . (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)

Tenders or Award of Contracts

In Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, our Apex Court observed as under:

“22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. .. A court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the court can say:“the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”;
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)

Orbiter dicta of SC

Orbiter dicta of SC binding on High Courts in the absence of a direct pronouncement. The Supreme Court in Oriental Insurance Company Limited v. Meena Variyal ((2007) 5 SCC 428) emphasised as under:

“An obiter dictum of this Court may be binding only on the High Courts in the absence of a direct pronouncement on that question elsewhere by this Court. But as far as this Court is concerned, though not binding, it does have clear persuasive authority.”

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End Notes

93. Exclusion of evidence to explain or amend ambiguous document. –– When the language usedin a document is, on its face, ambiguous or defective, evidence may not be given of facts which wouldshow 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.
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 containing100 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.
95. Evidence as to document unmeaning reference to existing facts. –– 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 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.
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.
Illustrations
(a) A agrees to sell to B, for Rs. 1,000, “my white horse”. A has two white horses. Evidence may be give of facts which show which of them was meant.
(b) A agrees to accompany B to Haidarabad. Evidence may be given of facts showing whether Haidarabad in the Dekkhan or Haiderabad in Sind was meant.
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.
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 mods”. A has both models and modelling tools. Evidence may be given to show which he meant to sell.

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Book No, 1 – Civil Procedure Code

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Admission, Relevancy and Proof

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Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

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Book No. 2: A Handbook on Constitutional Issues

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Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
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Suits by or against Trusts
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Law on Hindu Religious Endowments
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Temples, Gurudwaras, Churches and Mosques – General
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Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule

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