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.

1)     Patent ambiguity;

2)     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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Reasons for refusal to register a document

Reasons for refusal to register a document:

Sec.71 of the Indian Registration Act 1908

“Sec.71: Reasons for refusal to register to be recorded: Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal  and record his reasons for such order in his Book No.2, and endorse the words ‘registration refused’ on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.”
                   Reasons for rejection:

Rule 162 of the Registration Rules:

Section 19: That the document is written in a language which the registering officer does not understand and which is not commonly used in the district, and that it is unaccompanied by a true translation and a true copy.

Section 20:  That it contain unattested interlineations, blanks, erasures, or alterations which in the opinion of the registering require to be attested.

Section 21: and Section 22: That the description of the property is insufficient to identity it or does not contain the information required by rule 18.

Section 21(4): That the document is unaccompanied by a copy or copies of any map or plan which it contains.

Rule 32: That the date of execution is not stated in the document or that the correct date is not ascertainable.

Sections 23, 24, 25, 26, 72, 75 and 77: That it is presented after the prescribed time.

Sections 32,33,40 and 43: That it is presented by a person who has no right to present it.

Section 34: That the executing parties or their representatives, assigns, or agents have failed to appear within the prescribed time.

Sections 34 and 43: That the registering officer is not satisfied as to the identity of a person appearing before him who alleges that he has executed the document.

Section 34 and 40: That the registering offer is not satisfied as to the right of a person appearing as a representative, assign, or agent so to appear.

Section 35: That execution is denied by any person purporting to be an executing party by his agent.

Section 35: That the person purporting to have executed the document is a minor, an idiot or a lunatic.

Section 35: That execution is denied by the representative or assign of a deceased person by whom the document purports to have been executed.

Section 353 and 41: That the alleged death of a person by whom the document purports to have been executed has not been proved.

Section 41: That the registering officer is not satisfied as to the fact of execution in the case of a will or of an authority to adopt presented after the death of the testator or donor.

Sections 25, 34 and 80: That prescribed fee or fine has not been paid.

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Can an immovable property be gifted by oneself to himself?

Can an immovable property be gifted by oneself to himself?

The Gujarat High Court held in Suleman Isubji Dadabhai v. Narabhai Dahyabhai Patel, AIR 1980 Guj. 165, that --

“8. Now, on a close and meticulous analysis of the definition of "gift" given in Section 122, we find that in order that a transaction becomes gift there must firstly be a transfer of an immovable property voluntarily and without consideration.
Therefore, (i) there must be a transferor, (ii) there must be a transferee and (iii) the transfer must be accepted by or on behalf of the donee.
No difficulty arises when the owner of an immovable property gifts it to another person. But, can we say that the owner of an immovable property can gift the property to himself?
We are unable to conceive of a case where there can be a transfer of an immovable property by a person to himself, except indeed in case of a trust, to which we are adverting shortly.
As for example, there cannot be a sale of a property by its owner to himself; similarly there cannot be mortgage of an immovable property by owner or the mortgagor to himself. Similarly, there cannot be the lease of a property 'from its owner to himself’.
Next, an owner of an immovable property cannot exchange one property of his with another.
Lastly, except in cases of trust there cannot be a gift of an immovable property by an owner to himself. We have said so because transfers, connotes transfer of an immovable property by an owner to someone else. There cannot be a transfer to oneself because such a transfer is meaningless. A sale in one's own favour, a mortgage in one's own favour, a lease in one's own favour, an exchange in one's own favour and a gift in one's own favour do not bring about any change in the character or ownership of the property and therefore they are not transfers.
Therefore, there is no transfer at all in the properties so dealt with and all rights therein remain where they are and do not undergo any transfer or transformation whatsoever even after a transaction of sale,' mortgage, lease, gift or exchange has been executed by the owner in favour of himself.
It is, therefore, clear that, in order that a transaction may amount to a gift, there must be a donor under the deed and there must be a donee. One person cannot be the donor and the donee. He cannot in his capacity as the donor gift an immovable property to himself and accepts it as the donee. We say so because there is no transfer whatsoever in this case.
We are mindful of the definition of "transfer" given in Section 5 of the Transfer of Property Act. We are dealing with it shortly. We are, however, clear in our minds that in order that a transaction may amount to a gift, there must be a transfer from one legal person to another legal person of an immovable property and that there must be two legal persons - one of whom is the donor, another of whom is the donee and that the donee has accepted the gift or that it has been accepted on his behalf.
Ex facie, therefore, when the appellant appointed himself as the sole trustee of the lands in question after settling them in trust for public benefit, he did not gift those properties firstly because there was no transfer of lands in question amounting to gift and also because there was no donee as he himself could not become the donor and- the donee and could not accept the gift on his own behalf.”

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Unauthorised Occupant of River Poramboke land

“Unauthorised Occupant of River Poramboke land”

Show cause notice to the unauthorised occupant of poramboke land cannot be evicted straightaway without issuing show cause notice:

In Gooda Srinivasulu Naidu v. The Collector of Chengalpattu and 2 others, 1997 (III) CTC 106, the Madras High Court observed this finding:

In this case, a person was in occupation of Ac.2.00 of river poramboke land and doing agricultural activities since 1952. He was served B-Memo notice every year by Revenue authorities for his unauthorised occupation and he was paying assessment regularly to the Govt.

Under the Land Encroachment Act 1905:

Such unauthorised occupant of poramboke land can be evicted from it by issuing prior show cause notice under section 7 of the said Act. Such notice under sec.7 of the said Act is mandatory. Therefore the Collector or the Tahsildar (Deputy Tahsildar or Revenue Inspector or any specified officer by the State Govt.) cannot straightaway issue any order to evict under Sec.6 of the Act, without issuing show cause notice under sec.7 of the Act.

Sec.7 of the Land Encroachment Act 1905:

“Sec.7: Prior notice to person in occupation: Before taking proceedings under Sec.6 of the Act the Collector (or Tahsildar or Deputy Tahsildar or Revenue Inspector or any authorised officer or any other officer specified by the State Govt (not being an authorised officer) as the case may be shall cause to be served on the person reputed to be in unauthorised occupation of land being the property of Govt. a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under Sec.6 of the Act.Such notice shall be served in the manner prescribed in Sec.25 of the Tamil Nadu Revenue Recovery Act, 1864, or in such other manner as the State Govt. by rules or orders under Sec.8 may direct.Provided that no such notice shall be necessary in the case of any person unauthorisedly occupying any land, if he had been previously evicted from such land under Sec.6 or if he has previously vacated such land voluntarily after the receipt of a notice under Sec.5-B or under this Section.

The Madras High Court further held that when a power is vested with an authority under the statute, that power must be exercised in accordance with the procedure prescribed. Therefore any departure therefrom cannot be easily tolerated.

Other High Courts:

The Division Bench of the Madras High Court and other High Courts were also expressed the same view, that summary eviction proceedings proposed under Sec.6 is held to be invalid for non-issue of a prior notice contained under Sec.7 of the Act.

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Marriage Expenses

“Marriage Expenses”

Mulla Hindu Law by S.T.Desai 16^th Edition:

“440: Marriage expenses – In the case of a Joint family governed by the Mitakshara law, the joint family property is liable, while the family is still joint, for the legitimate marriage expenses of male members of the family and also of the daughters of male members of the family.”

Case law:

Devalapalli Kameswara Sastri and others v. Polavarapu Veeracharlu, ILR 34 Mad. 422, a Division Bench of Madras High Court held that –

“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 belong to the twice-born classes.Marriage is one of the necessary samaskaras or religious rites, in the case of Sudras, as well as the twice-born 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.Venkataranarasu 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 Bramachari 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 D.Srinivasa Iyengar v. Thiruvengadathaiyangar, ILR 38 Mad. 556 is also a Full Bench decision 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.”

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No abatement prior to judgment in certain circumstances

“No abatement prior to judgment in certain circumstances”

Order 22 Rule 4(4) of CPC:

“The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file written statement or who having filed it, has failed to appear and contest the suit at the hearing, and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have same force and effect as if it has been pronounced before death took place.”

Notes:

(1) This provisions of Or. 22 R 4(4) are applicable to appeal as well as to suit and the power to exempt under the said sub-rule can be exercised at any time before the judgment, even after the abatement has taken place. (AIR 1969 Mad 309);

(2) The sub-rule (4) has not specifically insisted on the filing of an application for exemption, unlike some of the other provisions in the Code of Civil Procedure making the filing of an application obligatory for obtaining any orders from the Court under this rule. (AIR 1969 Mad 309, this judgment was pronounced based on the High Court of Madras Amendment (in 1927) of Order 22 Rule 4(4));

(3) The decision in the case of Janabai Ammal v. TAA Palani Mudaliar, AIR 1981 Mad 62 has been decided after the Central Amendment Act 104 of 1976 in CPC.

(4) If we read the rule 4(4) on the basis of Rule 11, there may not be any defect or bar in disposing of the appeal even without bringing the legal representatives of the deceased, who was property served notice from this Court prior to his/her death. (Vasudeva Naicker v. TA Madhavan, 1997 (III) CTC 63);

Initiation

"Initiation":
"The word 'initiation' in which it has been used in the review orders only mean and indicate the proceedings are to be taken after the Full Court has decided to proceed against the delinquent officer after due deliberation."

ILR 1996 (2) Mad 1616

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.

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Persons who are authorised to present documents for registration

The persons authorised to present the documents for its registration:

Sec.32: Persons to present documents for registration:

Except in the cases mentioned in Sections 31,88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,---

(a)   By some person executing or claiming under the same, or, in the case of copy of a decree or order, claiming under the decree or order, or

(b)   By the representative or assign of such person, or

(c)    By the agent of such person, representative or assign, duly authorised by power of attorney executed and authenticated in manner hereinafter mentioned.

Sec.33 Power of attorney recognizable for purposes of section 32:

(1)   For the purposes of section 32, the following powers of attorney shall alone be recognised, namely –

(a)   If the principal at the time of executing the power of attorney resides in any part of India a power of attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides.

(b)   If the principal at the time aforesaid resides in any other part of India in which the Act is not in force a power of attorney executed before and authenticated by any Magistrate.

(c)    If the principal at the time aforesaid does not reside in India a power of attorney executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government.

Provided the following persons shall not be required to attend at any registration office or Court for the purpose of executing any such power of attorney as is mentioned in clauses (a) and (b) of this section, namely—

(i)                 Persons who by reason of bodily infirmity are unable to attend;

(ii)               Persons who are in jail under civil or criminal process;

(iii)             Persons exempt by law from personal appearance in Court.

Jallikattu - The Supreme Court's view

The Supreme Court on Jallikattu, Bullock-Cart Race on May 07, 2014

In the case of Animal Welfare Board of India v. A.Nagaraja and others.

The Supreme Court held that:-

NON-ESSENTIAL ACTIVITIES:

61. We have, however, lot of avoidable non-essential human activities like Bullock-cart race, Jallikattu etc. Bulls, thinking that they have only instrumental value are intentionally used though avoidable, ignoring welfare of the Bulls solely for human pleasure. Such avoidable human activities violate rights guaranteed to them under Sections 3 and 11 of PCA Act (The Prevention of Cruelty to Animals Act, 1960). AWBI (The Animal Welfare Board of India), the expert statutory body has taken up the stand that events like Jallikattu, Bullock-cart race etc. inherently involve pain and suffering, which involves both physical and mental components, including fear and distress. Temple Grandin and Catherine Johnson, in their work on “Animals in Translation” say:

“The single worst thing you can do to an animal emotionally is to make it feel afraid. Fear is so bad for animals I think it is worse than pain. I always get surprised looks when I say this. If you gave most people a choice between intense pain and intense fear, they’d probably pick fear.” Both anxiety and fear, therefore, play an important role in animal suffering, which is part and parcel of the events like Jallikattu, Bullock-cart Race etc.

RIGHT TO LIFE:

62. Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word “life” has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution. So far as animals are concerned, in our view, “life” means something more than mere survival or existence or instrumental value for human-beings, but to lead a life with some intrinsic worth, honour and dignity. Animals’ well-being and welfare have been statutorily recognised under Sections 3 and 11 of the Act and the rights framed under the Act. Right to live in a healthy and clean atmosphere and right to get protection from human beings against inflicting unnecessary pain or suffering is a right guaranteed to the animals under Sections 3 and 11 of the PCA Act read with Article 51A(g) of the Constitution. Right to get food, shelter is also a guaranteed right under Sections 3 and 11 of the PCA Act and the Rules framed thereunder, especially when they are domesticated. Right to dignity and fair treatment is, therefore, not confined to human beings alone, but to animals as well. Right, not to be beaten, kicked, over-rider, over-loading is also a right recognized by Section 11 read with Section 3 of the PCA Act. Animals have also a right against the human beings not to be tortured and against infliction of unnecessary pain or suffering. Penalty for violation of those rights are insignificant, since laws are made by humans. Punishment prescribed in Section 11(1) is not commensurate with the gravity of the offence, hence being violated with impunity defeating the very object and purpose of the Act, hence the necessity of taking disciplinary action against those officers who fail to discharge their duties to safeguard the statutory rights of animals under the PCA Act.

63. Jallikattu and other forms of Bulls race, as the various reports indicate, causes considerable pain, stress and strain on the bulls. Bulls, in such events, not only do move their head showing that they do not want to go to the arena but, as pain is being inflicted in the vadivasal is so much, they have no other go but to flee to a situation which is adverse to them. Bulls, in that situation, are stressed, exhausted, injured and humiliated. Frustration of the Bulls is noticeable in their vocalization and, looking at the facial expression of the bulls, ethologist or an ordinary man can easily sense their suffering. Bulls, otherwise are very peaceful animals dedicating their life for human use and requirement, but are subjected to such an ordeal that not only inflicts serious suffering on them but also forces them to behave in ways, namely, they do not behave, force them into the event which does not like and, in that process, they are being tortured to the hilt. Bulls cannot carry the so-called performance without being exhausted, injured, tortured or humiliated. Bulls are also intentionally subjected to fear, injury – both mentally and physically – and put to unnecessary stress and strain for human pleasure and enjoyment, that too, a species totally dedicated its life for human benefit, out of necessity.

64. We are, therefore, of the view that Sections 21,22 of the PCA Act and the relevant provisions have to be understood in the light of the rights conferred on animals under Section 3, read with Sections 11(1)(a) &(o) and Articles 51A(g) and (h) of the Constitution, and if so read, in our view, Bulls cannot be used as a Performing Animals for Jallikattu and Bullock-cart Race, since they are basically draught and pack animals, not anatomically designed for such performances.

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The scope of power under Article 227

Nature and scope of power under Article 227 of the Constitution of India was considered by this Court (SC) in Jai Singh and others v. Municipal Corporation of Delhi and another, (2010) 9 SCC 385. In the said case, this Court (SC) held:

“15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well-recognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. 

Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. 

The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. 

It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. 

The exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a “bull in a china shop”, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.”

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Estimate and Guesstimate

Estimate and Guesstimate

The concept of guess work is not unknown to various fields of law as it applies in the cases relating to insurance, taxation, compensation as well as under the Labour Laws.

The court has a discretion applying the guess work to the facts of the given case but it is not unfettered and has to be reasonable having connection to the facts on record adduced by the parties by way of evidence.

The court further held as under:

“‘Guess’ as understood in its common parlance is an estimate without any specific information while “calculations” are always made with reference to specific data. “Guesstimate” is an estimate based on a mixture of guesswork and calculations and it is a process in itself. At the same time “guess” cannot be treated synonymous to “conjecture”. “Guess” by itself may be a statement or result based on unknown factors while “conjecture” is made with a very slight amount of knowledge, which is just sufficient to incline the scale of probability. “Guesstimate” is with higher certainty than mere “guess” or a “conjecture” per se.”

(See also: Thakur Kamta Prasad Singh v. State of Bihar, AIR 1976 SC 2219; Special Land Acquisition Officer v. Karigowda & Ors., AIR 2010 SC 2322; and Charan Das & etc. etc. v. H.P. Housing & Urban Development Authority & Ors. etc., (2010) 13 SCC 398).

Cheque bounce cases- Amended Act

People can now file cases related to cheque bounce at the place where the cheque is presented for clearance and not at the place of issue, as per the new law which got President Pranab Mukherjee's assent recently.

The Negotiable Instruments (Amendment) Act, 2015 received the President's nod on Saturday, official sources said on Wednesday.