EDIFICE OF DEEDS AND DOCUMENTS

                                    V.G.Ranganath M.L.,(Ph.D)**

 An Advocate or Document writer is not only required to draft documents, but he may also be called upon to interpret documents drafted by others. Therefore, brief knowledge of the  basic rules of construction is necessary. Particular problems of construction relating to some specific matters are also considered in the following part, basing upon the case law.

Document writing, as already stated, is an art. If the recitals bring out the facts and circumstances clearly and the operative portion of the deed is in harmony with the recitals, then the document should not present any difficulty in interpreting its scope and effect and more so the intention of the parties. But some times the deeds are so drafted that either they are inconsistent with one part and another or there is ambiguity in the wording or the identification of the property involved is not brought out clearly, with the result of rival claims are made and the Courts are called upon to interpret the document. This is how deeds and documents which are supposed to clearly define the rights, privileges and duties of the parties avoiding the court litigation are defeating the very purpose of a document. It is because of lack of clarity. Documents had been interpreted by courts of law in a plethora of cases, and over the years as the courts interpreted the documents, certain broad principles have evolved. The Privy Council held that two maxims have to be borne in mind in construing a deed. Courts are bound to construe contracts or agreements by deed or parol ‘ut res magis valeat quam pereat’[1]. The other maxim is ‘falsa demonstration non nocet’[2]. In order to ascertain this, the false description in the instrument should be omitted. Without it, if there is certainty as to the property conveyed, the instrument is valid[3].

Subsequently, the Supreme Court held that where a document has to be construed the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look into the surrounding circumstances to determine what was intended.[4]

To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the standing of the parties using the words have to be taken into consideration. Sometimes, it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property are given which conflict with and take away from the absolute title given in the earlier portion. It is well settled that in case of such a conflict of disposition should be disregarded as unsuccessful attempts to restrict the title already given. It is clear, however, that an attempt should always be made to read the two parts of the document  harmoniously, if possible; it is only when this is not possible, e.g., where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, the later provisions have to be held to be void[5].

Section 88 of the Succession Act cannot come into play in the context of the interpretation of deeds. When there is a conflict between two clauses in a deed and they are irreconcilable, the earlier clause overrides the latter. Unlike in a Will, in the deeds it is the earlier clause that prevails and if the later clause is repugnant to the earlier one and has the effect of nullifying it, it is the first one that prevails. That being the correct legal position, where the earlier clause confer only a limited estate, that cannot be enlarged by the later one and so the later one should be disregarded. Of course, if it is possible to reconcile both the clauses, effect must be given to both of them. But if the conflict cannot be resolved, then it is earlier clause that should be given effect to[6].

In construing document one must have regard, not to presumed intention of parties, but to meaning of words used. If two interpretations of document are possible, one which would give effect and meaning to all its parts should be adopted. Words creating uncertainty in document can be ignored[7].

The real nature of a document and the transaction there under have to be determined with reference to all the terms and clauses of that document and all the rights and results flowing therein. A document cannot be interpreted by picking out only a few clauses ignoring the other relevant ones. Similarly, the nature and meaning of a document cannot be determined by its end result or one of the results or consequences which flow from it[8].

Alteration of Deed by erasure or interlineations: Before a Deed is executed, the parties are free to alter the Deed by erasure or interlineations or in any other way. Any alteration or interlineations made before execution of a Deed, does not invalidate the instrument[9]. Any alteration made to the material part of the Deed, without the consent of the party liable under it, the Deed would be rendered void from the time of the alterations are made. Any material alteration effects the rights and liabilities of the parties. Where the plaintiff produces in a suit a Sale Deed which appears to have been altered, the Court will not act upon it, till it is satisfactorily proved that the alteration was made antecedent to the signature of the executant[10].

At last, it is the mandatory duty of the Advocate or Document Writer to be well versed with all recitals and technicalities of the Deed or Document with updating amendments in law.

** The Author is V.G.Ranganath, Asst.professor, Padala Rama Reddi Law College, Hyderabad and Research Scholar(part-time),Dr.B.R.Ambedkar College of Law, Andhra University, Visakhapatnam .

E-mail:ranganathvg@yahoo.com

[1] Which means that it may be made to operate rather than be inefficient.

[2] Means, a mere false description does not vitiate, if there be sufficient certainty as to the object.

[3] AIR 1918, PC 102.

[4] Chunchun Jha v Ebadat Ali, AIR, 1954, SC 345.

[5] Ramkishorelal v Kamalnarayan, AIR 1963 SC 890.

[6] Gowramma v Yellu Reddy Chenga Reddy, AIR 1965 AP 226.

[7] Delhi Development Authority v Durga Chand Kaushish, AIR SC 2609.

[8] State of Orissa v Titaghur Paper Mills Co Ltd., AIR SC 1293.

[9] Halsbury’s Law of England, Fourth Edition, Vol.12 page 1377.

[10] V.Kameswara Rao v K.Hemalathamma Rao, AIR 1959 AP 596

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