When can the evidence to explain or amend an ambiguous document, be given?…. What is the distinction between patent and latent ambiguity?

Question: When can the evidence to explain or amend an ambiguous document, be given? What are the provisions under the Evidence Act regarding the evidence as to the terms or words, language or meaning of the contents of a document?

What is the distinction between patent and latent ambiguity? [U.P.C.J. 2013, U.P.A.P.O. 2015]

Find the answer to the mains question only on Legal Bites. [When can the evidence to explain or amend an ambiguous document, be given?…. What is the distinction between patent and latent ambiguity?]

Answer

Section 92 of the Indian Evidence Act, forbids the admission of evidence of an oral agreement for the purpose of contradicting, varying, adding to, or subtracting from, the terms of a written document as between the parties to such document or their representatives in interest. There are six provisos to section 92 which acts as an exception to this.

Proviso 6 of section 92 provides that whenever a court has to deal with a document that has been proved, its object is to endeavour, to ascertain its real meaning and for this purpose extrinsic evidence is sometimes necessary. So the proviso (6) says that “any fact may be proved which shows in what manner the language of a document is related to the existing facts.”

The object of the admissibility of the evidence of the surrounding circumstances is to ascertain the real intentions of the parties but those intentions of the parties must be gathered from the language of the document as explained by extrinsic evidence. No evidence of any intention inconsistent with the plain meaning of the words used will be admitted for the object is not to vary the language used, but only to explain the clause in which the words are used by the parties to the deed.

Let us take examples. A makes a grant to B in respect of some property situated in village F and in his (A’s) cultivation. B files a suit for the possession of that land. The document embodying the grant is filed and proved. B will be allowed to prove by oral evidence as to what land was in possession of A at the time of the grant.

A makes a will of his property to his children. He does not name them. Evidence may be given to prove who are his children. Certain premises were leased including the yard, the length and breadth of the yard were given in the lease. There was a cellar under the yard. There was a question of whether the cellar was included in the lease or not. It was held that oral evidence was admissible to prove that at the time of the lease the cellar was in occupancy of another tenant and therefore it could not have been intended by the parties that it should be included by the lease in question.

If some condition of a document is unambiguous, then to determine the real intention of the parties extrinsic evidence is not allowed because Section 92 provides that the real intention of the parties to the document should be gathered from the language used in the document. But if the document is ambiguous and there is more than one meaning of the language used in the document then, the sixth proviso of Section 92 should be looked into which gives permission to the court to take into consideration the conduct of the parties and surrounding circumstances in order to ascertain the real meaning of the document.

In the cases of this type, the oral evidence of this type can give direction to the court to ascertain the real intention of the parties to the document. In these cases, the subsequent conduct of the parties provides the evidence to ascertain the real intention of the parties and to remove the ambiguity in the language of the document.

Where the consent decree did not cover entire disputes between the parties and some vagueness remained, the factual background as also the manner in which the existence of rights had been claimed by the parties would be relevant and Section 92 would not be attracted.

There are two kinds of ambiguity of words, one is patent ambiguity and the other one is latent ambiguity. Sections 93 and 94 deal with documents that are patently ambiguous.

Patent ambiguity means ambiguity in the face of it. Latent ambiguity means that a document is not ambiguous in the face of it, however, there is some collateral matter that makes the document ambiguous.

It is dealt with in sections 95 to 98. The two ambiguities i.e. Patent and Latent ambiguity are distinguished mainly on the following points:

1. A patent ambiguity is so uncertain and no meaning can be granted to the document and the latent ambiguity is certain and meaningful but the document makes no relevance in the present circumstance.
2. The patent ambiguity is of personal nature and it is related to the person executing the document oral evidence is not allowed for the removal of this kind of ambiguity. Whereas latent ambiguity is of objective nature and it is related to the subject matter and object of the document and to remove the kind of ambiguity oral evidence is allowed.
3. Patent ambiguity makes the document useless but latent ambiguity does not render a document useless.
4. The patent ambiguity as it is on the face of the document is evident from inspection of the document itself, however, the latent ambiguity is not evident from prima facie inspection of the document is applied to existing circumstances.

Patent Ambiguity may be understood as appearing on the face of the instrument. A patent ambiguity admits of no explanation by matters extrinsic and has occasioned no inconsiderable degree of confusion. For instance, in the case of a written contract, assigning the party’s interest in the freight of a ship, saying parole evidence would be admissible of the circumstances attending the transaction, to ascertain whether the word ‘Freight’ referred to the goods on board of the ship or to an interest in earnings of the ship.

However, it falls within the general definition of patent ambiguity. The terms used are doubtful in their meaning and consequently admit more than one interpretation according to the subject matter in contemplation of the parties. The ambiguity is not latent in any proper sense as it is inherent in the instrument and appears on its face and evincing a difficulty at the very moment of its perusal and yet it admits of explanation.

The court of the law admit evidence of particular usages in aid of interpretation of written instrument, from the nature of the case, such customs or usage is necessary to a right understanding of the instrument. Parole evidence may also be given to applying the written instrument to the subject matter, when used by a particular person and applied to particular subjects; it is perfectly right with fair dealing to give effect to the language used in a contract as it is understood by those who make use of it.

In order to make a clear distinction between Patent and Latent Ambiguities, it is necessary to note that there are two kinds of patent ambiguity and correct knowledge is essential to avoid confusion with latent ambiguities which later are of a perfectly different kind. Some patent ambiguities allow a resort to extrinsic evidence and others do not and these latter classes only seem to belong to ambiguities patents.

Ambiguity is a patent in this sense when the mere perusal of the instrument shows plainly the something more must be added before the reader can determine which of several things is meant by it, and then the rule is inflexible no evidence to supply the deficiency can be admitted. A patent ambiguity in a written instrument, which requires something to be added in order to make it intelligible, cannot be explained by evidence extrinsic and renders the instrument void.

On the other hand, a latent ambiguity would in the first instance seem to be easily understood, and yet it becomes difficult to actually interpret as from the loose manner in which the term has sometimes been used. Thus, maybe the precise definition of latent ambiguity seems in the very instance to be certain and without ambiguity on the face of the instrument.

However, there is some inherent and collateral matter arising out of the instrument that possesses ambiguity and as it is allowed to be raised by using extrinsic evidence, the ambiguity would be dissolved by the same means. Thus, it is clear that the very nature of latent ambiguity is that it never appears on the face of a written instrument but it lies hidden in the person or thing or subject where the writings speak.

So, to conclude in simple words, the distinction between patent and latent ambiguity is: if prima facie on reading the document the ambiguity can be detected and no definite meaning be understood then such ambiguity is patent ambiguity. And if reading the document implies no ambiguity and the meaning is definite, but when the same document is applied with the instrument of facts and the ambiguity arises consequently giving indefinite meaning, then the ambiguity is the latent ambiguity.

---

Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X