JUDGMENT -[His Lordship after stating the facts and holding that the defendants were bound to supply sugarcane to the plaintiffs at the minimum price fixed by the Central Government by the notifications issued by it, proceeded] : In the event of my being wrong in the view which I have taken above, and if the view taken is that the stipulation in the contract in regard to the price at which sugarcane is to be supplied by the defendant-Corporation to the plaintiff company is not stated in clear terms in the contract, the question that arises is whether it is permissible to the Court to consider the circumstances surrounding the entering into of the said contract as an aid to its interpretation by virtue of the provisions of proviso (6) to section 92 of the Evidence Act. In the event of my coming to the conclusion that extrinsic evidence is permissible under the said proviso, I would further have to consider what is the interpretation that should be put upon the said stipulation after considering the extrinsic evidence in the present case., It may be mentioned that no oral evidence has been led in this case by either party, and the extrinsic evidence on which Mr. Nariman has relied consists entirely of Acts, Orders and Notifications and of the documentary evidence tendered as exhibits in the present case, as well as the admissions made by or on behalf of the defendant-Corporation in the correspondence and at the Bar in the course of the arguments. A large number of authorities were cited before me in regard to the first of those questions viz., whether extrinsic evidence is admissible under proviso (6) to section 92 of the Evidence Act as an aid to the interpretation of the stipulation in regard to price in the contract between the parties. Whilst I do not propose to deal with each and everyone of those authorities, I must proceed to consider such of them as, in my opinion, merit discussion. 2. Mr. Nariman has relied on the decision of the Privy Council in the leading case of Balkishen Das v. Legge1 which arose out of a suit for redemption of mortgage filed by the respondent in which the question was whether certain deeds of conditional sale in respect of a talook with a proviso for re-purchase on a fixed date were in reality mortgages. The evidence of the respondent, and of a person named Man, was admitted by the trial Judge for proving the real intention of the parties, and was to some extent relied upon in both the lower Courts. The Privy Council held that that evidence was not admissible for the purpose of construing or ascertaining the intention of the parties in view of the provisions of section 92 of the Indian Evidence Act. After setting out the terms of that section, Lord Davey in his speech said that it was conceded that the said case could not be brought within any of the provisos to that section, and that the cases in the English Courts of Chancery which were referred to by the learned Judges in the High Court did not have any application to the law of India as laid down in Acts of the Indian Legislature. Curiously enough, however, Lord Davey then proceeded to lay down as follows (p. 65) : " ••••••••• The case must therefore be decided on a consideration of the con tents of the documents themselves, with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts." The latter part of that statement reproduces the identical terms of proviso (6) to section 92 of the Evidence Act though it had been stated by Lord Davey a little earlier in his speech that none of the provisos to section 92 of the Evidence Act were applicable. In point of fact, therefore, the decision in the case of Balkishen Das v. Legge was based on the contents of the documents in question construed in the light of the extrinsic evidence permissible under proviso (6) to section 92 of the Evidence Act, and I regard the said decision as authority for the proposition that the said proviso can be resorted to as an aid to the interpretation of a document the terms of which are not dear. It was by resorting to that mode of construction that the Privy Council upheld the decision of both the lower Courts that the transaction in question was intended to be and was a mortgage by conditional sale and that the respondent was entitled to a decree for redemption. 3. It was by resorting to that mode of construction that the Privy Council upheld the decision of both the lower Courts that the transaction in question was intended to be and was a mortgage by conditional sale and that the respondent was entitled to a decree for redemption. 3. An identical question as to whether a document in the form of a sale deed was in reality a mortgage arose for decision in several other cases and it would be convenient to dispose of four of those cases which were cited before me in the context of the decision in the case of Balkishen Das v. Legge which I have just discussed. The first of them in chronological order is the decision of the Privy Council in the case of Baijnoth Singh v. Hajee Vally Mahomed2 in which the same question as in Balkishen Dass case arose not, however, in relation to immovable property, but in relation to certain shares. It may be mentioned that though there were two sets of transactions in dispute in the said case, one called the Abba transactions and the other called the Jamal transactions, the Privy Council was concerned, as the statement of facts (at p. 790) shows, only with the Jamal transactions. The Privy Council referred (at p. 791) to their own earlier decision in the leading case of Balkishen Das v. Legge, and to section 92 of the Evidence Act, but held that neither the said decision nor the said section had any application to the case before them in the view which their Lordships took of the same. It was stated by the Privy Council (at p. 791) that section 92 merely prescribes a rule of evidence but "does not fetter the Courts power to arrive at the true meaning and effect of a transaction in the light of all the surrounding circumstances", and their Lordships then proceeded to deal with those circumstances and held that the Jamal transactions in question were mortgages and the plaintiff was entitled to redeem the same. In Baijnath Singhs case the Privy Council has no doubt held section 92 of the Evidence Act to be inapplicable, but in considering evidence of the surrounding circumstances for the purpose of arriving "at the true meaning and effect" of the transactions in question, the Privy Council has in effect applied proviso (6) to section 92, though it has not in terms referred to the same. That was a course which was permissible in view of exceptional nature of the relation which proviso (6) bears to the substantive part of the section, as will be pointed out later on in this judgment. Proviso (6) to see lion 92 has been construed by a Division Bench of this Court in the case of Martand v. Amritrao.3 In that case also, the question was precisely the same as in the case of Balkishen Das v. Legge, viz., whether the document in the said case which was in the form of a sale deed was in reality a mortgage, the suit being one for redemption of the alleged mortgage. Curiously enough, however, the decision of the Privy Council in the case of Balkishen Das v. Legge has not been referred to in the judgment of the Division Bench. Sir Norman Macleod C. J., delivering the judgment of the Division Bench, observed that when the District Judge had proceeded to discuss the circumstantial evidence with regard to the transaction in order to satisfy himself that it was in the nature of a mortgage, he probably had in mind proviso (6) to section 92 of the Evidence Act and that the language of that proviso was rather vague. He then proceeded to state a5 follows (p. 957) : "…........ It is true that evidence of the circumstances surrounding a document is admissible; but it is admissible only for the purpose of throwing light on its meaning. It would, we think, be not permissible to consider the surrounding circumstances with a view to holding that a document which on the face of it is a sale-deed was intended to operate as a mortgage." The learned Chief Justice then proceeded to observe that there could otherwise be no certainty as to the proper construction to be placed on a document which to all appearance was unambiguous. The Division Bench, therefore, held that the transaction in question was a sale and allowed the appeal and dismissed the plaintiffs suit. The question as to whether the transaction in question was a mortgage by conditional sale, or a sale with a condition of repurchase arose again in the case of Pandit Chunchun Jha v. Sheikh Ebadat Ali4 Bose J. delivering the judgment of the Court referred to the case of Balkishen Das v. Legge and stated as follows (p. 177) : "…….But certain broad principles remain. The first is that the intention of the parties is the determining factor; see Balkishen Das v. Legge. But there is nothing special about that in this class of cases and here as in every other case 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 in tended 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 to the surrounding circumstances to determine what was intended." After discussing the various clauses of the deed in question before them, Bose J. stated (at p. 180) that it did lack the precision of a practised hand and that probably accounted for its ambiguities and that there was ambiguity was patent from what he had said earlier in the judgment in discussing the various clauses of the deed. Bose J. then proceeded to discuss (at p. 181 et seq) the applicability of the provisions of section 58 (c) of the Transfer of Property Act to the facts of the said case, and ultimately held that, taking everything into consideration, their Lordships were of opinion that the deed in question was a mortgage by conditional sale under section 58 (c) of the Transfer of Property Act. A careful consideration of the judgment of Bose J. shows that the decision in the said case is not based only on the terms of section 58 (c) of the Transfer of Property Act and that the principle which he has laid down in the passage (at p. 177) quoted above, is enunciated by him as a broad principle which has nothing special about the class of cases to which the said ease related. Pandit Chunchun Jhas case shows that the real question which the Court must first consider is what is the legal effect of the words which the parties have used. and that it is only if the language employed is not clear that it is permissible to look to the surrounding circumstances to determine what was intended. There is one more case in which the same question as to whether a transaction, ostensibly of sale, should be regarded as a mortgage, arose, and that was in the case of Bhaskar Waman Joshi v. Narayan Rambilas Agarwal5 which arose out of a suit for redemption filed by the transferors. Shah J. delivering the judgment of the Court, observed (at p. 122) that the question whether by the incorporation of a condition of the nature contemplated by clause (c) of section 58 of the Transfer of Property Act a transaction, ostensibly of sale, may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The learned Judge then proceeded to state as follows (p. 123) : "…….... The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. Ii the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect. If there is ambiguity in the language employed the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts." 4. The learned Advocate-General, Mr. If there is ambiguity in the language employed the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts." 4. The learned Advocate-General, Mr. Seervai, has sought to distinguish the line of cases headed by Balkishen Das v. Legge which has been discussed above, on the ground that they fall into a distinct class in which the transaction had a formal aspect and a real aspect, and extrinsic evidence was admitted to show the real aspect or nature of the transaction. I do not think there is any basis for the distinction which the learned Advocate-General sought to make for, as stated by no less an authority than the Supreme Court itself in Pandit Chunchun Jhas case cited above, the decision in these cases proceeds on a broad principle which had nothing special about the class of cases in which the question whether a transaction which was ostensibly a sale was in reality a mortgage arose. Moreover, the same principles in regard to the admissibility of extrinsic evidence as an aid to the interpretation of a document have been laid down in other decisions which do not fall within that class and which I must now proceed to discuss. In the case of Ram Gopal v. Nand Lal6 one of the main questions was whether a deed of transfer described as a Tamaliknama by which two items of property, which were the subject-matter of the said litigation, had been conveyed to the transferee one Meria, making her "malik" gave her an absolute interest in those properties which was heritable and alienable, or whether there was anything in the surrounding circumstances to cut down the full proprietary rights that the word "malik" ordinarily imported and the said Meria got merely the interest of a life-tenant in those properties. Mukherjea J. delivering the judgment of the Court, laid down (at p. 772) the principle that is construing a document the fundamental rule was to ascertain the intention from the words used, and that the surrounding circumstances were to be considered, but that was only for the purpose of finding out "the intended meaning of the words which have actually been employed". For that limited purpose, the Supreme Court actually did consider the surrounding circumstances (at pp. 776 to 779) and came to the conclusion (at p. 779), that there was nothing in the context of the document or in the surrounding circumstances which would displace the presumption of full proprietary rights which the use of the word "malik" is apt ordinarily to convey. The learned Advocate-General relied upon the decision of the Privy Council in the case of Wadia v. Secretary of State for India7 in which the facts were that the first appellants ancestors enjoyed a grant of Rs. 4,000 per annum, in lieu of which, at his request, the Government by a deed dated February 9, 1848 made a grant of the villages of Juhu and Vile Parle in Salsette Island, near Bombay, which were assigned to him and his heirs in perpetuity. Without referring in detail to the questions relating to land revenue which arose in that case, it may be stated that for the purpose of deciding the same it was necessary for the Court to come to the conclusion whether the grant of 1848 was merely an assignment of Rs. 4,000 per annum out of the revenues of the said villages, or was a grant of the villages themselves subject to the conditions attached to the grant. The Privy Council took the view that the effect of the deed was "quite clear" (at p. 54) and they, therefore, declined to go into certain correspondence prior to the deed of grant though the same was referred to in the preamble to the deed. Viscount Dunedin observed in his speech (at p. 58) that it was no doubt clear that the Government intended and thought that what they were giving was worth Rs. 4.000, but they were not giving Rs. 4,000, but were, on the contrary, giving something instead of Rs. 4,000 which at that time they had been paying in cash. Viscount Dunedin observed in his speech (at p. 58) that it was no doubt clear that the Government intended and thought that what they were giving was worth Rs. 4.000, but they were not giving Rs. 4,000, but were, on the contrary, giving something instead of Rs. 4,000 which at that time they had been paying in cash. Viscount Dunedin also observed (at p. 57~ that nothing was better settled than that, when parties had entered into a formal contract, that contract must be construed according to its own terms and not be "explained or interpreted by the communing which led upto it", that that was especially true of a conveyance, and that, in the case of a conveyance, even if there had been a formal antecedent contract, that contract could not have been looked at to control the terms of the conveyance, much less could mere communings, which could only show What parties meant to do but could not show what they did. I do not think the decision in that case is of any assistance to the learned Advocate-General for the simple reason that it was a case in which the Privy Council took the view that the language itself was quite clear, and Mr. Nariman does not dispute that in such a case extrinsic evidence would not be admissible for the purpose of interpreting a document. A decision of a single Judge of this Court in the case of Afshar Tacki v. Dhararnsey Tricamdas8 was also cited before me, but in view of the clear pronouncements of higher Courts, I do not think it necessary to deal with the same in detail. Suffice it to say, that in that case what the learned Judge took into account for the purpose of interpreting a mercantile contract were matters of common knowledge like the prevalence of a World War and the consequences that flowed from it, but declined to admit oral evidence under the guise of surrounding circumstances to show what the parties really meant by the expression "in case I am unable to effect shipment of the goods". The learned Judge observed (at p. 664) that it would involve a plain violation of section 92 of the Evidence Act to admit such evidence for the purpose of proving that when a party "wrote one thing he meant, and was understood to mean, something totally different". The learned Judge observed (at p. 664) that it would involve a plain violation of section 92 of the Evidence Act to admit such evidence for the purpose of proving that when a party "wrote one thing he meant, and was understood to mean, something totally different". In my opinion, what the learned Judge rightly ruled out was extrinsic evidence for the purpose of contradicting or varying the written contract in violation of section 92 of the Evidence Act, a rule of evidence which Mr. Nariman does not dispute. The decision of the Supreme Court in the case of Radha Sundar v. Mohd. Jahadur Rahim9 was also cited by the learned Advocate-General in the course of the argument of this case. The question which arose in that case was one of construing a grant of Chaukidari chakran lands, and an objection was raised on behalf of the appellant that the respondent-defendants had not raised a certain plea in regard to that grant and should not, therefore, have been allowed to raise that point in Second Appeal in the High Court as it would necessitate the taking of evidence. Dealing with the contention, the Supreme Court held (para. 6) that the true nature of the grant was a matter to be decided on a construction of the terms of the document, which was a question of law, and that it was well settled that no evidence was admissible on a question of construction of a contract or grant which must be based solely on the terms of the document, "there being no suggestion that there is any dispute as to how the contents of the document are related to existing facts". The Supreme Court, therefore, held that the High Court was right in allowing the point to be taken and rejected the appellants contention with regard to the same. The words quoted by me above show that no question was raised in the said case in regard to the application of the terms of the document to existing facts, and the decision in the case is, therefore, in my opinion, of no assistance for the purpose of determining the ambit of proviso (6) " to section 92 of the Evidence Act. The next decision which was cited before me by the learned Advocate-General was another and a later decision of the Supreme Court in the case of Kamla Devi v. Takhatmal10 in which the question which arose was one of construction of the expression "when required" in a surety bond. The Supreme Court referred to section 94 of the Evidence Act and declined to go into the surrounding circumstances and observed as follows (p. 863) : “……..When a Court is asked to interpret a document, it looks at its language. If the language is clear and unambiguous and applies accurately to existing facts, it shall accept the ordinary meaning for the duty of the Court is not to delve deep into the intricacies of the human mind to ascertain ones undisclosed intention, but only to take the meaning of the words used by him, that is to say his expressed intentions. Sometimes when it is said that Court should look into the circumstances to find an authors intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. But if the words are clear in the context of the surrounding circumstances, the Court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document." The Supreme Court then proceeded to state that the other sections, viz. 95 to 98 of the Evidence Act, deal with ambiguities, peculiarities in the expression and inconsistencies between the written words and the existing facts, and stated that in the case before them no such ambiguity or inconsistency existed, as the expression "when required" was capable of only one meaning. I am afraid the said decision is. therefore, also of no assistance to the learned Advocate-General for the purpose of the present case, in so far as the language of the document in question was clear and applied to existing facts and proviso (6) to section 92 of the Evidence Act was, therefore, not attracted. I am afraid the said decision is. therefore, also of no assistance to the learned Advocate-General for the purpose of the present case, in so far as the language of the document in question was clear and applied to existing facts and proviso (6) to section 92 of the Evidence Act was, therefore, not attracted. The learned Advocate-General also cited the decision of the Supreme Court in the case of Bai Hira Devi v. The Official Assignee of Bombay,11 but I do not propose to deal with the same as the said decision was cited only for the purpose of showing the correlation between sections 91 and 92 of the Evidence Act inter se, it being stated therein (at pp. 1387-1388) that the said sections in effect supplement each other and can both be said to be based on the best evidence rule. No question of the applicability of proviso (6) to section 92 of the Evidence Act arose in the said case. The decision therein is, therefore, of no assistance in the present case. The learned Advocate-General also cited the decision of the Supreme Court in the case of The General Bank of India v. H. F. Ince. Co.12 which related to the construction of a clause in an insurance policy providing for the termination of that policy "at any time at the request of the Insured", and also "at any time ...... at the option of the Company". The main question in the appeal was whether the policy had been terminated by the Company under that clause by its letter dated August 7, 1947. It was contended on behalf of the Bank that a term must be implied in clause 10 that the termination could only be for a reasonable cause, which the termination in the said case was not. Rejecting that contention of the Bank, it was observed in the judgment of the Supreme Court (para. 5) that it was commonplace that it was the Courts duty to give effect to the bargain of the parties according to their intention, and when that bargain was in writing the intention was to be looked for in the words used “unless they are such that one may suspect that they do not convey the intention correctly. If those words are clear, there is very little that the Court has to do. If those words are clear, there is very little that the Court has to do. The Court must give effect to the plain meaning of the words, however, it may dislike the result". The Supreme Court took the view (para. 6) that the clause in question in the said case was plain, and its categorical language could not be radically changed by relying upon the surrounding circumstances, and it was observed that a right to terminate at will could not, by reason of the circumstances, be read as a right to terminate for a reasonable cause. It must be noted that in this case also, as in Radha Sundars case cited above, though the language used is somewhat different, what the Supreme Court has by clear implication laid down is that there must be some controversy as to how the contents of the documents are related to existing facts so as to give rise to a suspicion in the mind of the Court that the words of the document do not convey correctly the intention of the parties, before extrinsic evidence can be admitted as an aid to the interpretation of a document. Mr. Nariman in his reply relied upon the decision of the Supreme Court in the case of Dhanrajmal v. Shamji13 in which one of the questions which arose was whether a mercantile contract in which it was stated that it was "subject to the usual force majeure clause" was void on the ground of vagueness and uncertainty under section 29 of the Contract Act. The Supreme Court held (at p. 177) that the word "usual" referred to something which was invariably found in contracts of that particular type and that the impugned clause was, therefore, capable of being made certain and definite within the terms of section 29 of the Contract Act by proof that between the parties, or in the trade, or in dealings with parties in British East Africa, there was invariably included a force majeure clause of a particular kind, and the contract was, therefore, not void for vagueness or uncertainty. This decision is important for the purpose of the present case in view of the terms of the contract in regard to the price of sugarcane viz. that it was to be "governed by the notifications issued by the Government of India from time to time". This decision is important for the purpose of the present case in view of the terms of the contract in regard to the price of sugarcane viz. that it was to be "governed by the notifications issued by the Government of India from time to time". The definite article the is to be found both in the Minutes of the meeting held between the parties on July 28, 1965 (Exh. C) as approved by the defendant-Corporation, as well as in the Minutes of the meeting of the Board of Directors of the defendant-Corporation itself held on September 9, 1965 (Exh. E), in conjunction with the word "notifications" which also occurs in both those Minutes. In my opinion, the use of the definite article the in respect of the notifications mentioned in the stipulation in regard to price shows clearly that the parties had something definite in mind as far as the notifications which used to be issued are concerned. It has, therefore, a connotation similar to the word "usual" on the strength of which the Supreme Court took the view that extrinsic evidence could be led in order to make the clause in question in Dhanrajmals case capable of being made certain. The expression "from time to time" which also Occurs in both the said Minutes (Exhs. C and E), in my opinion, also conveys the idea that the parties had in mind the notifications that were usually being issued by the Central Government. That finishes with a discussion of the Indian cases on the point. There are, however, three decisions of English Courts which were cited before me and which I must now deal with. 5. The first of them is the decision of the Privy Council in the case of Van Diemens Land Company v. Table Gape Marine Board). The said appeal arose out of an action for trespass to land in which the question was whether certain land on the foreshore was included in the grant. It may be mentioned that the grant neither expressly excluded it nor expressly included it (p. 97), and the facts of the case as recited in the grant showed that the obvious intention was to give a title to land that had been taken possession of by the appellant company before the actual grant, on which it had expended money. It may be mentioned that the grant neither expressly excluded it nor expressly included it (p. 97), and the facts of the case as recited in the grant showed that the obvious intention was to give a title to land that had been taken possession of by the appellant company before the actual grant, on which it had expended money. Extrinsic evidence of what land the grantees were in possession of at the date of the grant was held admissible and it was observed (at p. 98), "The time when, and the circumstances .under which, an instrument is made, supply the best and surest mode of expounding it". Relying on the decision in Lord Hastingss case cited below, it was made clear in the speech of the Earl of Halsbury in the said case that if the language of the grant itself were absolutely plain and unambiguous no amount of user could prevail "against" the plain meaning of the words. The evidence that was admissible in that case was, therefore, clearly evidence which was intended to show in what manner the language of the document was related to the facts existing at the date of the grant and is in consonance with the principle underlying proviso (6) to section 92 of the Indian Evidence Act as interpreted by the decisions of Indian Courts which have already been discussed above" The next English decision which was cited in the course of the arguments was the decision of the House of Lords in the case of Carrington and Co., Limited v. Wooder,15. The facts of that case were that a London brewing company demised a public-house to a publican, who covenanted to deal exclusively with the lessors for beer, provided that they would be willing to supply the same to him "at the fair market price". It appeared that there were two market prices current in the trade, one in respect of tied houses which was applicable to the bulk of the brewers trade in London with a discount which was allowed at certain recognised rates, and the other in respect of what were called free tenants in whose case a higher discount was often obtained as a matter of special bargain. The question was, which was the market price that was intended by the parties as being the price of the beer to be supplied? The question was, which was the market price that was intended by the parties as being the price of the beer to be supplied? It was laid down that if the language of the written contract had a definite and unambiguous meaning, parol evidence was not admissible to show that the parties meant something different from what they have said, but that if the description of the subject-matter was "susceptible of more than one interpretation", evidence was admissible to shew what were the facts to which the contract related (at p. 77), and that (at p. 79) the term "market" was a word covering a variety of possible forms. The House of Lords, therefore, held that surrounding circumstances must he taken into consideration and that they showed that the fair market price to be charged was that applicable to tenants of tied houses. Lord Kinnear stated (p. 80) : “......... It is said that this involves a violation of the rule which does not allow a written instrument to be varied by oral evidence. But the objection is, in my opinion, groundless. Evidence is not admissible to put a peculiar meaning upon plain and unambiguous words. But it may be necessary to prove the relation of the document to facts; and I take it to be sound doctrine that for this purpose evidence may be given to prove any fact to which it refers, or may probably refer, or to identify any person or thing mentioned in it. In so stating the law, I am using the language of Sir James Stephen; and, accepting his doctrine as I do, I cannot think it doubtful that, in order to interpret the contract before us, we must know the facts about which the parties were bargaining .ad consider the circumstances of the market to which they refer as that in which they propose to deal." This decision of the House of Lords also, in my opinion, lays down the same principles in regard to the admissibility of extrinsic evidence as have been laid down by the decisions of our own Courts discussed above. The last English case which I must consider is one on which there was considerable discussion in the course of the argument before me. That is the case of Hillas and Co. The last English case which I must consider is one on which there was considerable discussion in the course of the argument before me. That is the case of Hillas and Co. v. Arcos, Ltd.16 The facts of that case were that the plaintiffs agreed to buy from the defendants a quantity of timber of a particular quality. The agreement contained an option to purchase more timber at a later date, but gave no particulars as to the quality. When the plaintiffs tried to exercise their option the defendants objected that it had not been intended that there was to be a binding contract in regard to the purchase of more timber at a later date but that it was simply intended to provide a basis for future negotiations. The House of Lords held that in the light of the previous dealings between the parties there was sufficient intention to be found and that the terms left uncertain in the option could be ascertained by reference to those contained in the original contract and from the normal practice of the timber trade. It has been observed in the judgment of the Supreme Court in Dhanrajmals case cited in the preceding paragraph (at p. 177) that the observations of Lord Wright in Hillass case to the effect that commercial documents are sometimes expressed in language, which does not on its face bear a clear meaning and the effort of the Court should be to give a meaning if possible, have become classic and have been quoted with approval both by the Judicial Committee and by the House of Lords ever since. In my opinion, however, celebrated those observations of Lord Wright in the Hillass case may have become, the question which arose in that case was one in regard to the requirement of certainty in a contract, and all that was held was that though businessmen are in the habit of making contracts in a crude and summary fashion, it should be the endeavour of the Court to give them a meaning, and that in the contract in question before the House of Lords in Hillass case the terms left uncertain in the option could be ascertained by reference to the original contract and by proof in regard to the normal practice of the particular trade. Hillass case is, in my opinion, not an authority which can be of any assistance in regard to the question which I am considering in the present case viz., in what cases is extrinsic evidence admissible as an aid to interpretation. As is apparent from the observations of Lord Wright (at p. 504) in the said case all that the House of Lords did in the said case was to extract the fair meaning of the parties to the contract from an earlier clause in the contract itself and from the practice. of the trade. I do not think Hillass case is, therefore, of assistance to me in deciding the question of admissibility of extrinsic evidence as an aid to the interpretation of a document in the manner contemplated by proviso (6) to section 92 of the Indian Evidence Act. 6. Having dealt with the case-law on the subject, it may be convenient to refer to the statements of the law on the point which I am now considering in some of the standard works on the subject. In my opinion, the best statement of it is to be found in Odgers on the Construction of Deeds and Statutes (4th Edn.) p. 31, in the following terms: "Rule V.-When is extrinsic evidence admissible to translate the language? It is to be noticed that extrinsic evidence here does not mean evidence of the writers intention but evidence to enable the Court to interpret the language used. It is only admissible, as so often with this subject of construction, when there is some doubt as to what the words mean or how they are to be applied to the circumstances of the writer." In Halsburys Laws of England (3rd Edn), Vol. II, p. 381, para. 628 it is stated that the object of all interpretation of a written instrument is to discover the intention of the author, the written declaration of whose mind it is always considered to be. It is further stated (at pp. 405.406, para. 658) in the same volume of Halsbury that the object of interpretation is to ascertain the intention of the parties to the instrument as expressed by the words they have used; and, since the words are the sole guide to the intention, extrinsic evidence of that intention is not admissible, save in the case of latent ambiguity which cannot otherwise be resolved. In the said passage it is, however, further stated that extrinsic evidence is admissible both to ascertain where necessary the meaning of the words used, and to identify the persons or objects to which they are to be applied, as the Court which has to construe the document ought to know the surrounding circumstances at the time when it was executed, so as to place itself, as nearly as possible, in the position of the parties, the intention of the parties being expressed in the words, used as they were with regard to the particular circumstances and facts. To the same effect are the observations in Anson on the English Law of Contract (22nd Edn.), pp. 24 to 26 and 138 to 141, and in Chitty on Contracts, 22nd Edn., Vol. I, paras. 624, 628 and 640. In the last of those paragraphs, the position is admirably summed up Chitty in these words, "Extrinsic evidence of this sort does not usurp the authority of the written instrument. It is the instrument which operates. The extrinsic evidence does no more than assist its operation, by assigning a definite meaning to terms capable of such explanation or by pointing out and connecting them with the proper subject-matter." 7. The next question that arises for my consideration is whether the Court is entitled to consider the subsequent conduct of the parties by way of extrinsic evidence as an aid to the interpretation of a contract when its terms are not clear. Mr. Nariman has contended that the Court is entitled to do so. In support of that contention, he has relied upon the observations of. Mahajan J. in the case of Abdulla Ahmed v. Animendra Kissen Mitter.17 Mahajan J. has observed in the said case that the evidence of conduct of the parties as to how they understood the words can be considered in determining the true effect of the contract made between the parties where there remains a doubt as to its true meaning, and particularly when the acts are done shortly after the date of the instrument. Those observations of Mahajan J. are, as the learned Advocate-General has pointed out, however, in a dissenting judgment on the point. The question in that case was whether the appellant who was an estate broker, was authorized to conclude a contract of sale. Those observations of Mahajan J. are, as the learned Advocate-General has pointed out, however, in a dissenting judgment on the point. The question in that case was whether the appellant who was an estate broker, was authorized to conclude a contract of sale. The majority of the Supreme Court held that he did not have that authority. Mahajan J. in his dissenting judgment, however, held that under the terms of the commission note in the said case, the appellant had authority to enter into a binding contract, and it was in support of that conclusion of his that Mahajan J. has relied upon the subsequent conduct of the parties. The observations of Mahajan J. on which Mr. Nariman has relied, therefore, occur in a dissenting judgment on the point to which they relate. In my opinion, it is well established that when the terms of a contract have been reduced to writing, extrin3ic evidence as to what transpired subsequent to the contract is not admissible for ascertaining the terms. In the case of Bhasker Waman Joshi v. Narayan Rambilas Agarwal which arose out of a suit for redemption filed on the footing that an ostensible sale was really a mortgage and which has already been cited above, it was laid d0wn in clear terms (at p. 123) by Shah]., delivering the judgment of a Bench of three Judges of the Supreme Court, that evidence of contemporaneous conduct is always admissible as a surrounding circumstance, but evidence as to subsequent conduct of the parties is inadmissible. Reference may also be made, in this connection, to the decision of a Division Bench of this Court in the case of Dinkerrai Lalit Kumar v. Sukhdaval18 in which ChaglaJ., delivering the judgment of the Bench, stated (at p 823) that the trial judge had fallen into an error in admitting parol evidence with regard to negotiations antecedent to the contract and also with regard to the subsequent conduct of the parties and observed (at 824), "It is hardly necessary to say that what the terms of the contract between the parties were, cannot be ascertained by allowing parol evidence as to what transpired antecedent to the contract or what the parties did subsequent to the contract," in the case of a contract which has been reduced into writing. The law in England is the same and, in England also, there is the highest authority for that proposition. In the case of North Eastern Railway v. Hastings (Lord)19 the facts were that in May 1853 Lord Hastings granted certain way-leaves to the railway company and that was a way-leave by which on certain terms the coal going over any part of the railways which crossed Lord Hastings land should pay certain rates. There could be no doubt that under the said agreement the sole right of Lord Hastings was to claim in respect of railways conveying coal through or over his own land. By another agreement of May 1854, however, certain way-leaves and rights in respect of them were granted by Lord Hastings, and the question which arose was whether under the said agreement of May 1854, like that of 1853, the right to get rents or sums was dependent upon whether the coal was carried through or over any part of Lord Hastings land, or whether the railway company was liable to pay rent upon coal convened over any part of the railways even though it did not pass over Lord Hastings land. For a period of over forty years after the said agreement, rent was paid by the railway company only for coal carried over the land of Lord Hastings, and not for coal which did not pass over the land of Lord Hastings. That was relied upon strongly in support of the case of the railways. It was held by the House of Lords that the clause in the agreement of May 1854 was clear and free from ambiguity (at pp. 265 and 270), and that "no amount of acting by the parties can alter or qualify words which are plain and unambiguous" (at p. 263). It was further held that in view of the clear and unambiguous terms of the relevant clause of the agreement of May 1854, no limitation on its terms could be imported by the light of the earlier agreement of May 1853 (at p. 265). In my opinion, the ratio of the decision of the House of Lords in Lord Hastings case is that neither an antecedent contract nor subsequent conduct can be used for the purpose of altering, qualifying or limiting words which are plain and unambiguous. In my opinion, the ratio of the decision of the House of Lords in Lord Hastings case is that neither an antecedent contract nor subsequent conduct can be used for the purpose of altering, qualifying or limiting words which are plain and unambiguous. It may, however, be noted that no question of resorting to extrinsic evidence to show in what manner the language of the document was related to existing facts as an aid to construction, as contemplated by proviso (6) to section 92 of the Evidence Act, arose at all in Lord Hastings case. 8. The propositions that emerge from a consideration of these authorities on the subject are as follows: (1) Cases in the English Courts of Chancery have no application to the law of India as laid down in the Indian Evidence Act. (2) In view of the provisions of section 91 of the Evidence Act, no extrinsic evidence, oral or documentary, can be admitted to prove the terms of a contract, grant or other disposition of property, except the document itself or secondary evidence of its contents when admissible under the relevant provisions of that Act, and the Court must find out the expressed intention of the parties. The fundamental rule of construction is to ascertain the intention from the words used in the document which is considered to be the written declaration of the mind of the author. (3) If the words are clear in expressing that intention and the language applies to existing facts, extrinsic evidence is not admissible for construing the deed or for ascertaining the real intention of the parties e. g. surrounding circumstances cannot be considered with a view to holding that a document which is, on the face of it, a sale deed was intended to operate as a mortgage. (4) If, however, the words are such that one may suspect that they do not convey the intention correctly, or in other words, there is some doubt as to what the words mean or how they are to be applied to the circumstances of the writer or to the facts existing at the time when the document was executed, extrinsic evidence is admissible, both under proviso (6) to section 92 of the Indian Evidence Act as well as in English law. In such cases, extrinsic evidence is admissible for the purpose of finding out the meaning of the words which have actually been employed, or what is the same thing, in order to translate the language of the document by assigning a definite meaning to terms capable of such explanation or by connecting them with the proper subject-matter, or in other words, for the purpose of throwing light on the meaning of the words used with a view to arrive at the true effect of the transaction to which the document relates. The whole object in such cases is to place the Court, as near as may be, in the position of the parties to the document. (5) The subsequent conduct of the parties is, however, not relevant or admissible for the purpose of construing a written document. (6) If the language employed in the document is ambiguous, the question of the admissibility or otherwise of extraneous evidence would be regulated by the provisions of sections 93 to 98 of the Evidence Act. The plain meaning of the word "ambiguous" is obscure, or of double meaning (Concise Oxford Dictionary). (7) In view of section 92 of the Evidence Act, oral evidence can, in no event, be admitted to contradict, vary, add to or subtract from the terms of the document, as far as the parties to that document are concerned. 9. The learned Advocate-General has sought to explain away the cases discussed above in which extrinsic evidence has been held to be admissible for the purpose of showing in what manner the language of a document is related to existing facts by stating that all those cases fall into certain definite classes and that it is only in cases falling within any of those classes that extrinsic evidence is admissible as an aid to the interpretation of a document. He has formulated four such classes, viz. (1) Cases in which, as already stated above, evidence is admissible to show the real nature of the transaction when that transaction has a real and a formal aspect. (2) Cases in which evidence is admissible to prove an implied term not inconsistent with the contract. He has formulated four such classes, viz. (1) Cases in which, as already stated above, evidence is admissible to show the real nature of the transaction when that transaction has a real and a formal aspect. (2) Cases in which evidence is admissible to prove an implied term not inconsistent with the contract. (3) Cases in which evidence is admissible to ascertain the nature and quality of the subject-matter of the instrument i. e. to identify the persons to whom, or the things to which, the instrument refers, and (4) Cases in which evidence is admissible to rebut a presumption that arises as a result of law or judicial decisions. The learned Advocate-General has, however, stated that these four classes are not necessarily mutually exclusive and a case may well fall within more than one of those classes. In the course of his argument, he proceeded to show into which class or classes the various cases that were relied upon by Mr. Nariman, or cited by the learned Advocate-General himself, would fall. In spite of the ingenuity as well as the originality of this argument of the learned Advocate-General, I am afraid I cannot accept the S3me. First and foremost, no such classification is to be found m any standard work, or any of the decided cases, as the learned Advocate-General has himself conceded. It is not difficult to take each of the cases cited and make out a number of classes into which one or the other can be shown to fall The classification which the learned Advocate-General sought to make out in the course of his argument cannot, however, stand the test of the judicial pronouncements as well as the statements of law in standard works on the subject which express the rule in regard to the admissibility of extrinsic evidence under proviso (6) to section 92 of the Evidence Act, or under the corresponding English rule of evidence in very wide terms, subject to the sole limitation that that rule can be resorted to only in case in which the words used in an instrument are such that one may suspect that they do not convey the intention correctly, or, in other words, that there is some doubt as to what the words med in the instrument mean or how they are to be applied to the circumstances of the writer or to the then existing facts. That is laid down as the only limitation that fetters the power of the Court to admit extrinsic evidence as an aid to the interpretation of a document in the standard works and in the decided cases discussed above as well as by the language of proviso (6) to section 92 The rule in question, which has been formulated by me as proposition No.4 in the preceding paragraph does not in any manner contradict the provision of the substantive portions of section 91 or section 92 of the Indian Evidence Act, nor is it an exception to the main part of section 92. It is well settled that though a proviso to a section is, as a general rule, added to qualify or create an exception to what is contained in the section to which it relates, provisos are often added, not as exceptions or qualifications to the main enactment, but as savings clauses, in which cases they will not be construed as controlled by the section shall Bhojraj v. Subhash Chandra20), and in exceptional cases, a proviso may not really be a proviso in the accepted sense, but may be a substantive provision itself (Board of Revenue, Madras v. R. S. Jhaver21). In my opinion, proviso (6) 10 sfc1inn 92 of the Evidence Act is of that exceptional nature in so far as it is not in exception to the rule laid down in the main part of the section that no evidence of any oral agreement or statement can be admitted for the purpose of contradicting, varying, adding to or subtracting from the terms of a written document. It is a substantive provision itself laying down the law relating to the admissibility of extrinsic evidence as an aid to the construction of a document in cases in which it is necessary to find out how the document is related to existing facts. It has nothing whatsoever to do with the question of contradicting, varying, adding to or subtracting from the terms of the document with which the main part of section 92 deals. Proviso (6) to section 92 does not take away or qualify anything that would, but for that proviso, have fallen within the substantive portion of that section. It is significant that, unlike the main portion of section 92, proviso (6) is not restricted to extrinsic evidence of an "oral agreement" or statement. Proviso (6) to section 92 does not take away or qualify anything that would, but for that proviso, have fallen within the substantive portion of that section. It is significant that, unlike the main portion of section 92, proviso (6) is not restricted to extrinsic evidence of an "oral agreement" or statement. Proviso (6) cannot, therefore, be construed as being an exception to section 92 and controlled by the main part of that section, or even as being a savings clause to the substantive portion of that section since it does not purport to save anything therein contained from the applicability of the substantive portion of the section. I, therefore, hold that extrinsic evidence would be admissible in the present case under proviso (6) to section 92 of the Evidence Act for the purpose of showing what was intended by the parties when, in regard to the price to be charged by the defendant-Corporation to the plaintiff-company, they used in the contract the expression "Governed by the notifications issued by the Government of India from time to time."