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Report No. 69

VI. Section 92-the First Five Provisos

43.25. First proviso.-

Under the first proviso to section 92, 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 of due execution, want of capacity in any contracting party, or mistake in fact or law. Illustration (e) to the section specifically indicates that such a mistake as would, by law, entitle a person to have the contract "reformed.- which is the old equivalent of what is known now as "rectification.- may be proved. This process does not seem to be confined to mistakes in the formation of the contract, and seems also to cover mistakes in rendering the intention of the parties into words.

In such cases, there is an agreement; but, the words in which the agreement is expressed do not totally express the meaning of the parties. In one of the Bombay cases,1 where there is an extensive discussion of mistake, it is pointed out that what is rectified is not the agreement, but the mistake in the expression of it. Specific reference to the first proviso to section 92 is found in an Allahabad case,2 where rectification was allowed. The combined effect of the first proviso to section 92 and of section 31 of the Specific Relief Act, 1877, is discussed in a Madras case.3

1. Dogru v. Bhana, 1904 ILR 28 Bom 420 (425).

2. Abdul v. Ram, ILR 44 All 246.

3. Rangaswami v. Sang, 1916 ILR 39 Mad 792.

43.26. Section 92-Rectification of mistake.-

A suggestion has been made that section 92 should be clarified to permit the rectification of mistakes, and oral evidence should be admissible for the purpose. It does not, however, appear to be necessary to make any such clarification, for the reason that under the first proviso to section 92, any fact can be proved which "invalidates any document or entitles any person to any decree or order relating thereto, such as mistake of law". Under the Specific Relief Act,1 mistake in recording the intention of the parties justifies rectification2. Such mistake can be pleaded by way of defence also3. Hence, no change is needed. Even before the passing of the Specific Relief Act, 1877, jurisdiction to rectify instruments on the ground of mistake was well recognised4-5.

1. Section 31, Specific Relief Act, 1877, and similar provision in the 1963 Act.

2. Rangaswami v. Souri, AIR 1916 Mad 519: ILR 39 Mad 792.

3. Kesho Singh v. Roopan Singh, AIR 1927 All 335.

4. Kassim v. Noor, (1864) 1 WR 76.

5. Bunputt v. Juzvahar, (1867) 8 WR 152 (Cal).

43.27. Second proviso.-

Under the second proviso to section 92, the existence of any separate oral agreement as to any matter on which document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. We have no changes to suggest in this proviso.

43.28. Third proviso.-

Under the third proviso, 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. This proviso also needs no change.

43.29. Fourth proviso.-

Under the fourth proviso, the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. The proviso may, at the first sight, appear to be a curious one, since it materially affects that part of the section which prohibits evidence "varying" the terms of the document. However, it should be pointed out that the proviso excludes cases where the contract etc. is required by law to be in writing. With this limitation as to its scope, the proviso is understandable, because the law will not go to the length of prohibiting subsequent oral agreements in toto.

43.30. Fifth proviso.-

Under the fifth proviso, any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved. This proviso itself is subject to a counter-proviso, which is expressed as follows:-

"Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract."

We have no comments on this proviso.

VII. The Sixth Proviso

43.31. Sixth proviso.-

The sixth proviso to section 92 requires a more detailed discussion. It provides that any fact may be proved which shows in what manner the language of a document is related to existing facts. The rationale of the proviso is clear enough. In general, no document can be interpreted or understood without taking notice of "external" reality, because a document is, after all, intended to affect, in some way or other, the facts existing outside the document. Like a literary work, a document is produced by a certain person in a certain time and place, and it is always related to various facts not recorded in the document. No document is written in a vacuum, and therefore, none can be read, understood or interpreted in a vacuum. It is knowledge of the external facts that is designed to fill, in some measure, that vacuum.

43.32. The language of the sixth proviso has been criticised judicially. Thus, Mcleod, C.J. has observed that the language is rather vague1. We are not, however, satisfied that the language of the proviso suffers from any inherent defect. No doubt, difficulties may arise in its application to the facts of a particular case. This is true not merely of this proviso, but also of numerous other provisions in the Evidence Act. The principle underlying the proviso is, however, clear enough the admissibility of evidence to show the connection between the words of an instrument and external reality, and to ascertain the identity or extent of the subjects referred to in a document.

1. Marland v. Amrit Rao, AIR 1925 Born 501 (503): ILR 49 Born 662.

43.33. The principal object of the sixth proviso is to enable evidence to be given to identify the subject-matter of what is stated in the document. In one of the early English cases1, Wood V.G. observed: "Some evidence is necessary in any case of a Will, that is to say, evidence to show the subject and object of the gift." In the same case, he emphasised that all "external information is requisite in construing every document". Indeed, as Goodeve has stated2, "It is by these circumstances (surrounding the instrument) as by lamp, that the Court reads the document."

Most of the English cases relate to Wills, but the principles are the same. So viewed, the proviso does not seem to suffer from any ambiguity, and we do not, therefore, consider it necessary to recommend any amendment on the point to which the above discussion relates.

1. Felthan (in re:), 1 Kay&J 528 (cited by Woodroffe).

2. Goodeve Evidence, p. 386, cited by Woodroffe.

43.34. It may be noted that the principle is not peculiar to India. It is recognised in England also. Lord Abinger observed long ago1-

"To understand the meaning of any writer, we must first be apprised of the persons and circumstances that are the subject of his allusions or statements."

1. Din Deo of Hiscocks v. Hiscocks, (1838) 5 M&W 363 (368) (Lord Abinger).

43.35. Section 92-Proviso (6)-Connection with sections 93 to 98.-

A suggestion has been made that since sections 93 to 98 amplify and illustrate this proviso, the connection between section 92 and sections 93 to 98 should be made clear by adding in the sixth proviso, the words "for the purpose and to the extent provided in section 93 to 98". The suggestion is based on a slight misconception as to the meaning of the sixth proviso to section 92. The proviso allows evidence to show how the words of the document "fit the external reality"1. Sections 93 to 98 deal only with certain special situations which may, in the absence of suitable provisions, create difficulties by reasons of the incomplete or defective language of the document as tested with external realities. These sections do not necessarily exhaust the situations to which the sixth proviso to section 92 may apply. We are, therefore, unable to accept the suggestion.

1. Faize Vnisa v. Hanifunissa, ILR 27 All 612.

VIII. Conclusion

43.36. The change required in section 92 is as indicated above.

Indian Evidence Act, 1872 Back

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