Agarwala, C.J:— This is an appeal under the Letters Patent by the plaintiffs against the decision of Ray, J. upholding the decision of the Court of appeal below reversing the decision of the Court of first instance. The appeal has arisen out of a suit by the plaintiffs to establish their title to property which was the subject-matter of a sale deed executed in their favour by defendants 3 and 4 on the 23rd of January, 1941. Subsequently, on the 1st of September, 1941, the same vendors executed another sale deed with respect to the same property in favour of defendants 1 and 2. Ray, J., held, on a construction of the document, that it was the intention of the parties to the sale deed in favour of the plaintiffs that the passing of title should depend on the passing of consideration, the receipt of which was acknowledged in the recitals of the deed, but which had not in fact been paid.

The learned advocate for the appellants has referred us to a number of cases dealing with the question whether evidence other than the deed may be looked at for the purpose of ascertaining the intention of the parties. That question, however, does not arise in a case where, on the language of the document itself, the intention of the parties is clear. The relevant portions of the document we are dealing with in the present case are as follows:

“In exchange for the price of Rs. 100 settled as the consideration for the sale (the vendors) have sold and executed the deed of sale in favour of the vendees after realization of the entire consideration in cash in one lump sum for payment of miscellaneous debts to other persons………………. Nothing remains due now and in their place have made him owner and have put him in possession…………. Now the executant, regarding the subject-matter of conveyance or the realization of the consideration money, have or would have in right to lay any claim or concern whatsoever against the aforesaid vendee. From this date the title of the vendee became permanent and perfect.”

The view taken by Ray, J., with which I respectfully agree, is that, on a consideration of the entire document, the intention of the parties was that the Dassing of title should depend on the passing of consideration. The Courts below have found as a fact that, despite the recital acknowledging the receipt of the consideration money, it was not paid, and the only question that really requires consideration is whether evidence is admissible for the purpose of contradicting the recital. That question has been decided against the appellants by a decision of this Court which the advocate for the appellants himself cited—Rahamohan Thakur v. Bipin Behari Mitra. In that case it was held that there is nothing in section 92 of the Evidence Act to prevent a person from adducing evidence for the purpose of shewing that a recital in a deed is untrue. The finding of fact in this case being that the consideration was not paid, and the proper construction of the deed being that the passing of title was dependent on the passing of consideration, the decision of Ray, J. was entirely correct. The appeal must, therefore, be dismissed with costs.

Meredith, J.:— I agree. But I should like to take this opportunity to state my own views. In a case like this, where we have to determine the terms of a contract, the question we have to ask is, what was the intention of the parties? In answering this we have first to ask ourselves another question: to ascertain the intention, are we confined to the terms of the document itself, or can we look to extraneous evidence?

The relevant sections of the Evidence Act, in answering this second question, are 91, 92, 93 and 95. Broadly speaking, subject to certain exceptions with which we are not concerned, section 91 provides that, when the terms of the contract have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, except the document itself, or secondary evidence of its contents in proper cases. Section 92, broadly speaking, lays down that when the terms of the contract have been proved in accordance with section 91, no evidence of any oral agreement or statement shall be admitted as between the parties for the purpose of contradicting, varying, adding to, or subtracting from, its terms.

Section 93 deals with what are called ‘patent ambiguities’, and says that, when the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects. Section 95 deals with ‘latent ambiguities’ as the phrase is, and says, 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. The broad effect of these provisions is that, ordinarily speaking, in ascertaining the intention of the parties to the contract, we are confined to construing the document itself. The principle is that, where the terms of an agreement are reduced to writing, the document itself, being constituted by the parties as the expository of their intentions, is the only instrument of evidence in respect of that agreement which the law will recognise, so long as it exists, for the purpose of evidence. This proposition remains true even where the language of the document is, on the face of it, ambiguous, or unmeaning, or defective. That is the result of section 93. It is only where there is a latent ambiguity within the “meaning of section 95 that extraneous evidence can be Considered.”

In Radhamohan Thakur v. Bipin Behari Mitra the late Sir Courtney Terrell laid down two propositions: first, that evidence is admissible to contradict, or vary the recitals in the document as opposed to the contractual or operative terms, thus distinguishing the recital part from the contractual part. Secondly, he says, if the terms of the document are ambiguous, we can then turn to extraneous evidence in order to ascertain the intention of the parties.

In my opinion, both these propositions a re expressed somewhat too broadly. I agree that the recitals can be contradicted, but only when the correctness of the recitals is in issue. They cannot be contradicted, in my judgment, for the direct and only purpose of deriving an inference with regard to the contractual intentions of the parties. That this is so as, I think, supported by Illustration (d), to section 91. It is,

“A contracts in writing with B for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion Oral evidence is offered that no payment was made, for the other indigo. The evidence is admissible.”

There is a clear implication here that oral evidence with regard to the non-payment of the amount due upon the contract itself if the contract said it was paid would not be admissible.

With regard to the other proposition Sir Courtney Terrell did not go into the distinction between patent and latent ambiguity, and I think the proposition laid down by him has to be qualified by the addition, provided the ambiguity is latent, not patent. The distinction is not always appreciated. A patent ambiguity is one which becomes apparent from a reading of the document alone. For example, if the document says “I sell my house for 100 guineas, that is, 110 pounds”, the ambiguity is apparent on the face of the document because 100 guineas is 105 pounds and not 110. In such a case, where the terms of the document are ambiguous, other extraneous evidence, is not admissible to explain what was meant. Where the ambiguity is latent, the terms of the document are perfectly clear and unambiguous in themselves. No ambiguity can become apparent until they are considered in relation to existing facts. For example, taking that given in the Evidence Act, if the document says, “sell my house in Calcutta”, but it is shown that I have no house in Calcutta, but I have a house in Howrah, evidence is admissible to show that the house in Howrah was meant. It is clear from this that evidence to contradict or vary the recitals is admissible in such a case, because it is only by Contradicting the recital that the ambiguity can be made apparent. That is a case where the correctness of the recital is in issue; and evidence is admissible to show it is incorrect, not for the direct purpose of making an inference as to intention, but for the purpose of making the ambiguity apparent. Once the ambiguity has been made apparent in this way, then external evidence can be let in and considered to clear up the ambiguity and show what was the intention of the parties.

Bearing all this in mind, let us turn to the present case. Ray, J., on a consideration of the terms of the document alone, has taken the view that the intention of the parties was that the receipt of consideration and the transfer of title should be simultaneous, or, as he says, ‘contemporaneous’. I agree with that view because it is clearly stated that the sale is made in exchange for the price, and the vendee is made owner and put in possession, as the document says, “after realisation of the entire consideration money in cash”.

I think, however, one should go further. The recital in the document that the entire consideration had been received is an incorrect statement of the state of affairs at that time. It is admitted that the consideration had not been paid and never has been paid. It is permissible, on the principles I have expressed already, to show the incorrectness of this recital, because the incorrectness of the recital shows a latent ambiguity. Once it is shown that what is stated in the document, though clear in itself, is not correct in relation to the existing circumstances, or unmeaning in reference to existing facts, then the problem arises as to what, by making these incorrect statements, the parties really meant. The statements being incorrect a latent ambiguity arises. In this view there is a latent ambiguity in the present document, and that being so, we are, in my view, entitled to turn to extraneous evidence. Once we can do that, we can take into consideration the fact that the consideration was not paid, as bearing on the intention of the parties, and we can also take into consideration two other admitted facts, that the vent for retained the sale deed all along and never made it over to the vendee, and possession, though stated to have been delivered, was never delivered. Indeed, in the present case, the plaintiffs claim not only possession but mesne profits. These facts strengthen the conclusion that the intention of the parties was that there should be no transfer of title upon registration unless and until consideration had been paid.

On a pure construction of the document itself the appeal must fail, but it must doubly fail if we consider the external circumstances in view of a latent ambiguity.

S.H

Appeal dismissed.