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Report No. 69

Section 97

44.7. Section 97 enacts another permissive provision. This is applicable when the language used in a document 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.

44.8. Thus, A agrees to sell to B "my land at X in the occupation of Y". A has land at X, but not La 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-vide the illustration. The rationale of the section is that where the ambiguity arises by reason of external facts, extrinsic evidence is admissible.

44.9. The section is meant for those cases in which the ambiguity is rather one of description, since the description is imperfect when brought to bear on any given person or thing.

44.10. Section 94 provides that when the language of a document is plain and applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. No changes are needed in the section.

Section 98

44.11. Under section 98, 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. This is illustrated by the illustration to the section, which reads-

"A, 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'.

44.12. It would be of interest to refer to the comparable rule as to statutes.

"It is a familiar rule1 in the construction of legal instruments, alike dictated by authority and common sense, that common words in the instrument are to be extended to all the objects which, in their usual acceptation, they describe or denote, and that the technical terms are to be allowed their technical meaning and effect; unless in either case the context indicates that such a construction would frustrate the real intention of the draftsman"2.

1. Mc Caffrey Statutory Construction, (1953), p. 39.

2. DeVeaux v. DeVeaux, 1 Strob Eq 283.

44.13. Words of common use1 are generally to be construed according to their natural, plain, and ordinary signification2. Terms of art should be understood according to their usage in the art to-which they belong3.

1. Mc Caffrey Statutory Construction, (1953), p. 39.

2. People v. Bashford, 112 NYS 502: 128 App Div 351.

3. Chamberlain v. Western Transp. Co., 45 Barb 218.

44.14. Meaning of characters, expressions, abbreviations and words.-

The principle upon which words are to be construed in instruments is very plain-where there is a popular and common word in an instrument, that word must be construed, prima facie, in its popular and common sense. If it is a word of a technical or legal character, it must be construed according to its technical or legal meaning. This would be its secondary meaning. But, before evidence can be given of the secondary meaning of a word, the Court must be satisfied from the instrument itself, or from the circumstances of the case, that the word ought to be construed, not in its popular or primary signification but according to its secondary intention1. In England, it has been held2 that evidence that expressions were used in a technical sense ought not to be admitted without a distinct averment as to the particular words to which evidence is proposed to be directed and as to the technical or trade meaning which it is sought to attribute to them.The section needs no change.

1. Holt & Co. v. Collyer, 16 Ch D 718 (520), per Fry, J.; see Royner v. Rayner, (1904) 1 Ch.

2. Sutton v. Ciceri, (1890) 15 AC 144.

Section 99

44.15. Under section 99, persons who are not parties to a document or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.

44.16. This provision is illustrated by an illustration. A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery. At the same time, they make an oral agreement that three months' credit shall be given to A. This could not be shown as between A and B, but it might be shown by C, if it affected his interests.

44.17. The question has arisen whether, in confining itself to persons who are not parties, section 99 intends that the rule against variance (given in section 92) should apply as between a party and a stranger.

44.18. The point came up for discussion before the Supreme Court in one case1, where it was held that the true position is, that if the terms of any transfer reduced to writing are in dispute between a stranger to the document, and a party to the document (or his representative-in-interest), the restriction imposed by section 92 (which excludes evidence of oral agreement) will not apply; and both the stranger to the document and the party (or his representative-in-interest) are at liberty to give evidence of the oral agreement, notwithstanding the fact that such evidence, if believed, may contradict, vary, add to or subtract from, the terms reduced to writing.

1. Bai Hira Devi v. Official Assignee, AIR 1958 SC 448.

44.19. Recommendation.-

In our view, it is desirable to make the position clear, by substituting suitable words in section 99, since the present wording does not completely bring out this position. We recommend that the section should be amended accordingly. The new wording should make it clear that section 99 applies-(a) as between strangers, and (b) also as between a party and a stranger.

44.20. Section 99-"Varying".-

As to that part of section 99 which provides that persons who are not parties to a document or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement "varying" the terms of the document, the question has been raised whether the word "varying" has been used in a narrow sense, in contradistinction to the wider words "contradicting, adding to, varying or subtracting from" the terms of the document, used in section 921.

1. Field Evidence, 6th Edn., p. 287, cited in Woodroffe and Ameer Ali Evidence, 1958, Vol. II, p. 1108. The discussion is really for section 99, though placed in Woodroffe under section 97.

44.21. It has been held by the Supreme Court,1 that though it is only "variation" which is specifically mentioned in section 99, there can be no doubt that the third party's right to give evidence which is recognised by section 99 would include a right to give evidence to contradict, add to, or subtract from the terms. Previous to the Supreme Court's decision also, it had been held by the Madras High Court2 that the word "varying" (in this section) covers the same ground as the comprehensive words used in section 92.

1. Bai Hira Devi v. Official Assignee, AIR 1958 SC 448 (450), para. 5.

2. Pathammal v. Syed Kalai, 1903 ILR 27 Mad 329.

44.22. Recommendation.-

It is desirable to embody this interpretation in the section. Accordingly, we recommend that the more elaborate words used in section 92 should be adopted in section 99 also.

44.23. Position in England as to extrinsic evidence-Matter not required to be in writing.-

The next question to be considered relates to matter required by law to be reduced to the form of a document. In England1, there is little doubt that, in proceedings between strangers to transactions required by law to be in writing, the circumstances in which extrinsic evidence is admissible are the same as the circumstances in which it is admissible in proceedings between the parties to the document; though there is some authority for the view that extrinsic evidence is always admissible except as between parties when the document merely embodies a transaction to the validity of which the writing is not essential, even if the extrinsic evidence has the effect of varying, adding to, or contradicting the terms of the writing.2

1. Cross Evidence, (1974), p. 540.

2. Cross Evidence, (1974), p. 540.

44.24. In R. v. Inhabitants of Cheadle, (1832) 3 B&Ad 833. Contrast the operation of the rule that a document is exclusive evidence of its terms, illustrated by Augustine v. Challis, (1847) 1 Exch 279. the parish was allowed to call a pauper whose settlement was in issue, to swear that a deed of conveyance to which we was a party1 was, contrary to its express terms, unsupported by consideration. In R. v. Adamson, (1843) 2 Mood CC 286 (CCR)., the accused was charged with obtaining money by false pretences as a premium payable under a deed of partnership executed by the prosecutor.

It was held that the prosecutor could give evidence of a different consideration for the payment of the premium than that stated in the deed. Stephen2 treated these cases as authorities for a general exception to the rule prohibiting extrinsic evidence adding to, varying or contradicting the terms of a document. But it is possible to treat the decisions as permitting extrinsic evidence (except as between the parties) for the reason that the matter was not required by law to be reduced to writing. But the rule prohibiting extrinsic evidence certainly applies in some cases in which one of the parties to the proceedings was not a party to the writing, but the other was a party.

1. Cross Evidence, (1974), p. 540.

2. Stephen's Digest of the Law of Evidence, (12th End.), Article 99.

44.25. In Mercantile Bank of Sydney v. Taylor, 1893 AC 317, for instance, the bank was not allowed to adduce evidence of an oral agreement between the Bank and one of several sureties, of whom the defendant was another, that the guaranteed debt should not be included in a release from liability given by the bank.

44.26. The evidence received in R. v. Inhabitants of Cheadie, supra, would now be admissible in proceedings between parties to the deed, and R. v. Adamson, (1843) 2 Mood CC 286 (CCR), supra, may simply indicate that the rule does not apply in criminal proceedings. "The authorities are too scanty to be a convenient subject for any generalisation."1 Cross so sums up the position. It was suggested to us that where the matter is required by law to be reduced to writing, contradiction by oral evidence should not be permitted, even between strangers, and the section should be so amended, such an amendment, it was stated2, is required if the policy of the law that requires a writing is not to be frustrated. We have, after considerable discussion, decided to accept the suggestion.

1. Cross Evidence, (1974), p. 540.

2. Compare discussion as to section 92.

44.27. Recommendation.-

In the light of the above discussion, we recommend a re-draft of section 99, on the following lines:

"99. Evidence of any facts tending to show a contemporaneous agreement contradicting, varying, adding to, or subtracting from the terms of a document may be given-

(a) as between a persons who are not parties to the document or their representatives in interest, or

(b) as between a person who is a party to the document or his representative in interest and a person who is not such party or representative in interest.

Exception.-No such evidence shall be given where the matter is required by law to be reduced to writing"

Section 100

44.28. Section 100 is as follows:-

"100. Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (X of 1865) as to the construction of Wills."

The reference in this section to the Indian Succession Act, 1865 should be replaced by a reference to the Indian Succession Act, 1925 (39 of 1925). Accordingly, we recommend that for the words and figures, in question the figures "1925" should be substituted.

Indian Evidence Act, 1872 Back

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