A House That Does Not Exist Where the Deed Says It Does
A sale deed transfers "my house in Kolkata." The problem: the seller never owned a house in Kolkata. He does, however, own a house across the river in Howrah — and the buyer has been living in that Howrah house, undisturbed, since the day the deed was signed. Read on its own, the deed's words are grammatically flawless and perfectly plain. Applied to the real world, they describe nothing that exists. Section 98 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is written for precisely this gap between plain language and an unmeaning reality.
98. Evidence as to document unmeaning in reference to existing facts.
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.
Illustration.
A sells to B, by deed, "my house in Kolkata". A had no house in Kolkata, 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.
Section 98 reproduces Section 95 of the Indian Evidence Act, 1872 without any wording change — confirmed against two independent bare-act sources.
Not the Same Failure as Section 97
The previous article in this series, on Section 97, covered language that is plain and applies accurately to existing facts — where a party tries and fails to prove the words were "not meant to apply" to what they clearly describe. Section 98 is the mirror-image failure: language that is plain but corresponds to nothing real at all. "My house in Kolkata" is not ambiguous — there is no competing candidate it might mean instead, as there was with the two white horses in Section 99. It is simply false as a factual matter, on the seller's own facts.
The legal question Section 98 answers is whether that falsity kills the document outright, or whether it can be read as a mistaken label for something the parties actually meant. The section chooses the second path: evidence may be given to show the phrase was used in a "peculiar sense" — here, as a mistaken but identifiable reference to the Howrah house, not the Kolkata house that never existed.
Why B's Possession Does the Heavy Lifting
The Act's illustration does not rely on abstract reasoning about what the seller "probably" meant — it points to a hard fact: the buyer has actually been in possession of the Howrah house since the deed was executed. That single fact does most of the persuasive work. If the seller handed over a specific property and the buyer has occupied it without objection since the day of the sale, the parties' own subsequent conduct is powerful evidence of what the deed was always meant to convey, regardless of what city name the drafter mistakenly typed.
This is why Section 98 sits comfortably inside a chapter that otherwise excludes oral evidence contradicting documents. Evidence of possession is not an oral claim about what was privately agreed — it is an objective, verifiable fact about what actually happened after the deed was signed, used only to identify the referent of language that plainly refers to nothing on its face.
| Provision | The Document's Words | Applied to Reality |
|---|---|---|
| Section 97 BSA | Plain | Applies accurately to one real fact — evidence to the contrary is barred |
| Section 98 BSA | Plain | Matches nothing real — evidence is admitted to find what it was really meant to say |
| Section 99 BSA | Plain | Matches two or more real candidates equally — evidence identifies which one |
The Supreme Court's General Rule on When Context May Be Used
The Supreme Court's guidance on construing deeds cautions against reaching for surrounding circumstances too readily. In Provash Chandra Dalui v. Biswanath Banerjee, 1989 AIR 1834, the Court held that reference to surrounding circumstances in construing a deed is legitimate only where the words used are genuinely doubtful — a court cannot go outside the document's own language where that language is otherwise clear and workable. Section 98 fits neatly inside that limit: it does not invite a general inquiry into what the parties "really" intended whenever a case seems to call for it; it applies only in the specific, narrow situation where the document's plain words correspond to no existing fact at all, leaving the court no workable meaning to apply without looking further.
Key Takeaways
- Section 98 BSA carries forward Section 95 IEA verbatim, illustration intact — confirmed against two independent sources.
- It applies where a document's language is plain but corresponds to no existing fact — distinct from Section 97 (plain language that does apply) and Section 99 (plain language matching more than one candidate).
- Evidence of the parties' subsequent conduct — such as undisturbed possession — is typically the strongest proof of what a mistaken description was actually meant to convey.
- The Supreme Court permits recourse to surrounding circumstances only where the document's own words are genuinely doubtful, not as a general licence to look beyond clear language (Provash Chandra Dalui v. Biswanath Banerjee, 1989 AIR 1834).
- The section only works where the evidence points to one clear substitute meaning — it cannot rescue a description that remains genuinely uncertain even after the facts are examined.
Conclusion
A drafting mistake in a description is not automatically fatal to a document, provided the real world supplies a clear enough answer to what was actually meant. Section 98 lets a court follow the parties' own conduct — who took possession, who paid, who has lived where since the ink dried — back to the true subject of a deed whose words, taken literally, describe nothing at all. Anyone reviewing a document with a factual error in its description should look first at what happened after signing; that conduct is usually the evidence Section 98 is built to receive.