R. Vijayabalan vs D. Jayakumari and Another

M. Karpagavinayagam, J.—R. Vijayabalan, the appellant herein is the defendant in the suit.

D. Jayakumari and R. Nallathambi, the respondents herein filed the suit against the defendant for rectifying the description of the property in the

suit agreement and to order specific performance by directing the defendant to execute the sale deed in respect of the suit property in favour of the

plaintiffs after receiving the balance sale consideration and to deliver possession of the suit property to the plaintiffs. The suit was decreed as

prayed for. Aggrieved by the same the defendant has filed this first appeal before this Court.

For the convenience sake, the parties would be referred as arrayed in the suit.

The case of the plaintiffs is as follows:

(a) The defendant is the absolute owner of the suit property. He entered into an agreement to sell the suit property to the first plaintiff on 9.1.1980

for a sale consideration of Rs. 49,500. As per the agreement, the defendant should execute the sale deed on receipt of advance amount of Rs.

5,000 and it was agreed that the sale deed would be executed on or before 9.4.1980 either in favour of the first plaintiff or in favour of any

nominee of the first plaintiff. On 6.4.1980, the defendant endorsed on the agreement extending the time of execution of the document by two

months. Again on 6.6.1980, it was further extended by one month. Again on 4.7.1980, by another endorsement the time was extended by two

months. On that date, the defendant was paid a sum of Rs. 20,000 towards the portion of the balance sale consideration. On 3.9.1980 another

endorsement was made extending the period by three months. Ultimately, by further endorsement, the period was extended upto 17.10.1981.

(b) In the meantime, on 10.5.1981, the first plaintiff entered into an agreement with the second plaintiff agreeing to sell the suit property for a sum

of Rs. 60,000 and she obtained advance from him. Thus, the first plaintiff was ready and willing to pay the balance sale consideration, namely, Rs.

24,500 to the defendant and also expressed readiness to take the sale deed at her cost from the defendant. When both the plaintiffs went and

demanded the defendant to execute the sale deed, on knowing that the first plaintiff was making a small profit out of the sale of the property to the

second plaintiff, the defendant declined to execute the sale deed. Therefore, the plaintiffs filed the suit in O.S.No. 554 of 1981 for specific

performance of the suit agreement dated 9.1.1980.

(c) The defendant filed written statement contending that the particulars of the description of the property was not correctly given and therefore, the

suit was liable to be dismissed.

(d) After framing the issues, the trial went on. During the course of arguments, the first plaintiff filed an application in I.A.No. 726 of 1981

requesting for amendment of the particulars given in the description of the suit property. The trial court took the view that the said application was

highly belated and consequently, dismissed the same. Against the said order, the plaintiffs preferred revision in C.R.P.No. 3104 of 1984 before the

High Court and the High Court also dismissed the said revision on the ground that the said application for amendment was highly belated.

(e) Thereafter, the plaintiffs filed an application in I.A.No. 850 of 1984 to withdraw the said suit with permission to file a fresh suit on the same

cause of action. The said application was allowed on 14.8.1984: Thereafter, the present suit has been filed on the same cause of action praying for

rectification of instrument and for specific performance. In this suit, they want rectification seeking for amendment of the particulars given in the

boundaries of eastern and western sides, since the correct particulars have not been given due to mutual mistake. Thus, the plaintiffs are entitled to

have the instrument rectified and for the relief of specific performance.

The case of the defendant is as follows:

The suit is not maintainable on the same cause of action, particularly when the application for rectification in the earlier suit was dismissed by the

trial court as well as the High Court. Having failed in their attempts to get the document rectified, the second suit cannot lie on the basis of the same

agreement seeking for rectification and specific performance. Apart from this, the sale agreement has been materially altered to suit the case of the

plaintiffs. Since the agreement itself has been meddled with the relief of specific performance, the said relief cannot be granted in law. The plaintiffs

have not come to court with clean hands, since they have gone to the extent of meddling with the suit agreement by making corrections. If the

agreement cannot be rectified, there cannot be decree for specific performance of the agreement which is unenforceable. The material defects

found in the agreement were noted by the defendant at the later stage and the defendant himself apprised the first plaintiff of these defects. But,

under the ill advice, the first plaintiff joining hands with the second plaintiff filed the suit.

On the above pleas, seven issues were framed by the trial court. During the course of trial, the first plaintiff examined herself as P.W.1 and

marked as Exs.A-1 to A-49 on the side of the plaintiffs. On the side of the defendant, no witness was examined, however Exs.B-1 to B-3 were

marked.

On a scrutiny of the evidence, oral and documentary the trial court upheld the Case put forward by the plaintiffs and rejected the case of the

defendant and decreed the suit by granting the reliefs sought for in favour of the plaintiffs.

Feeling aggrieved over the judgment and decree, the defendant has preferred this appeal.

Mr. S.V. Jayaraman, the learned senior counsel appearing for the appellant/defendant, while attacking the judgment of the trial court would

make submissions on various aspects relating to law and facts at length. Though he raised several grounds in the appeal, he would mainly

concentrate on two aspects which are the following:

(1) The trial court has not given due consideration to the material alterations in Ex.A-1 sale agreement. Admittedly, there are visible alterations

made in ink over the typed figures in the body of the deed as well as in the body description of property column. When there are patent material

alterations, the plaintiffs ought to have proved that the alterations were not material and those alterations were not made by them. Furthermore,

when the mandatory requirements of Section 26 of the Specific Relief Act had not been satisfied, the lower court ought not to have allowed the

rectification of the sale agreement Ex.A-1. As a matter of fact, the evidence of P.W.1 the first plaintiff would not indicate anything that the

alterations are not material and the same were only due to mutual mistakes.

(2) The evidence recorded in the earlier suit has been wrongly considered by the trial court, since those records were not marked by following the

proper procedure. Section 33 of the Evidence Act will not apply, as the said document showing the earlier proceedings giving the evidence

recorded in the earlier suit were not marked with the consent of parties.

On the basis of these two points, the learned Counsel for the appellant/defendant would request this Court to interfere in the judgment of the

trial court and dismiss the suit.

On the other hand, Mr. Seshadri, the learned Counsel for the respondents/plaintiffs would elaborately submit that the trial court has given

proper reasonings by applying Section 26(1)(3) of the Specific Relief Act for granting the relief of rectification of the agreement and that the

documents and deposition given by both the plaintiff and defendant, in the earlier suit were marked through P.W.1, the first plaintiff and when those

documents were marked, there was no objection raised for marking the documents and even in the cross-examination there was no challenge

made with reference to those documents marked before the court and since the said act would amount to waiver, Section 33 of the Evidence Act

would apply and as such, the trial court''s findings with valid reasonings have to be upheld. He would further contend that the mistakes crept in the

document are not material, as there was no dispute in the property to be sold and if the case of the defendant is the material alterations, the

defendant ought to have proved that those material alterations were made by the plaintiffs and in the absence of production of any evidence, orally

and documentary to substantiate the defence plea, the plaintiffs would be entitled to the reliefs of both rectification and specific performance, as the

plaintiffs proved their case by adducing acceptable, oral and documentary evidence.

In the light of the above submissions made by the counsel for the parties, the following questions as points for consideration to be determined

by this Court would arise:

(1) Whether the alterations or corrections made in Ex.A-1 are material and the same have been made by the plaintiffs without the consent of the

defendant and consequently whether the plaintiffs would be entitled to the relief of rectification of the document Ex.A-1 as contemplated u/s 26 of

the Specific Relief Act?

(2) Whether the trial court is right in considering the evidence adduced in the prior suit while disposing of the present suit and whether Section 33

of the Evidence Act would get attracted to enable the/trial court to act upon the said evidence?

It cannot be debated that the court u/s 26 of the Specific Relief Act, 1963 when an agreement or a contract does not express the real intention

through a mutual mistake of the parties in a suit instituted by either of the parties, may in its discretion, direct rectification of the instrument so as to

express that intention. Section 26(3) also would provide besides rectification that the court can also grant the prayer specifically claimed in the

pleading for the enforcement of the sale.

It is the contention of the learned senior counsel for the appellant/defendant that the alterations and corrections found in Ex.A-1 without the

consent of the defendant being material would render the said deed void from the time of alteration and as such, the claim made by the

respondent/plaintiff for rectification and specific performance cannot be granted.

It is settled law that a material alteration is one which varies the rights, liabilities or legal position of the parties or varies the legal effect of the

instrument as originally expressed, or reduces to certainly some provision which is originally unascertained and as such void, or which may

otherwise prejudice the party bound by deed as originally executed. The effect of making such an alteration without the consent of the party bound

is exactly the same as that of cancelling the deed. This is a well established rule as held by the Apex Court in the case reported in. Seth Loonkaran

Sethiya and Others Vs. Mr. Ivan E. John and Others, .

But, it is the case of the respondents/plaintiffs that these alterations were not made without the consent of the defendant and as a matter of fact,

those alterations were made by the defendant only. Moreover, the mistakes crept in the document are not material, as there is no dispute in the

identity of the property intended to be sold and therefore, the principle mentioned above would not apply to the present facts of the case. As such,

the rectification is permissible u/s 26 of the Specific Relief Act.

As correctly pointed out by the trial court in its judgment, the defendant who was examined in the earlier suit as D.W.1 would clearly admit

that he made signature in Ex.A-1 eight times. The reading of the evidence in his deposition marked in this case as Ex.A-39 would clearly show that

he read out the entire portion of Ex.A-1 and then he put signature in Exs.A-34 to A-41. He would also admit that the written statement was filed in

the earlier suit only after perusal of Ex.A1, which was filed in the court along with the suit. Admittedly, in the said written statement, he did not state

that those corrections were made by the plaintiff without the knowledge of the defendant. It is also admitted by him that the discussions relating to

the agreement of sale were made by the plaintiff and by his father on his behalf.

There is also no dispute in the fact that the advance amount was paid by the plaintiff and the same was received by the father of the defendant.

Under those circumstances, it can be safely concluded that the corrections were made in Ex.A-1 only with the knowledge and consent of the

defendant.

In that situation, the question with reference to the material alteration without the consent of the party which would render the document void

would not arise in this case. Moreover, the correction found in Ex.A-1 would not be construed to be material, as, in my view, it would not vary the

rights and liabilities as also the legal position of the parties, especially when the identity of the property intended to be sold by the defendant to the

plaintiff is not in dispute.

In the light of the above conclusion, let us now go into the question whether the requirements of Section 26 of the Specific Relief Act have

been fulfilled in the present case.

As noted above, Section 26 of the Act is manifestly clear to indicate that the court can direct for the rectification of the instrument so as to

express the real intention of the parties, once it comes to the conclusion that the mistake crept in was mutual. If the plaintiff is able to establish

before the court that by mutual mistake the property was described wrongly, it is open to the court to take oral evidence in regard to it, treat the

document as rectified and give the consequential relief to the plaintiff, by giving effect to the intention of the parties.

It is held that where it is proved that owing to a mistake the written contract does not substantially represent the real intention of the parties, the

court has jurisdiction, not only to rectify the written agreement, but also to order specific performance of it as rectified. So, from this, it is clear that

in a single suit the court can pass a decree both for rectification and for specific performance.

It is true that the burden of proving the common intention lies upon the party who claim that the written contract should be rectified. As regards

the standard of proof required, all that can be said is that the claim will fail unless the common intention upon which it is based is proved by

convincing evidence. At the same time, it shall be held that it is not necessary that the evidence should be ''irrefragable'' or it should settle the

question ''beyond all reasonable doubt'' as is demanded by the criminal law.

It must also be stated that the issue relates not to the individual intention of the parties, but to their common intention. If the defendant can

satisfy the court that he understood the agreement to be exactly what was stated in the said written statement, then rectification will not be granted.

Neither party can rely upon his own mistake to say that it was a nullity from the beginning, no matter that it was a mistake which to his mind

was fundamental, and no matter that the other party knew that was under a mistake. This is laid down in I.T.C. Limited Vs. George Joseph

Fernandes and Another, .

The word ''mutual mistake'' is defined thus: ""Mutual mistake with regard to contract, justifying reformation, exists where there has been a

meeting of the minds of the parties and an agreement actually entered into but the agreement in its written form does not express what was really

intended by the parties.

In the light of these principles, we have to consider whether the respective burden lies upon both the parties have been discharged.

The defendant in his deposition marked as Ex.A-39 would state in the chief-examination that he did not know the contents of Ex.A-1, since

the terms of the agreement were finalised only by the plaintiff and his father. He would admit that there was a mistake in respect of the particulars

regarding the western and eastern boundaries and informed the same to the first plaintiff. He would also admit that he was a party to the agreement

and on his behalf his father discussed the terms and finalised the same.

As noted above, he has categorically admitted that in all the eight endorsements, he put his signature. Though the defendant as D.W.1 in the

earlier suit deposed that the plaintiff was responsible for the mistake, he would admit that he did not know as to who gave the details regarding the

boundaries at the time of execution of Ex.A-1. He would categorically state that even before his execution of document by putting his signature in

Ex.A-1, he knew that there was a mistake in respect of these boundaries. The relevant portion of admission is this:

This would clearly show the case of the defendant that he knew that there was a mistake in the particulars regarding eastern and western

boundaries at the time of execution of Ex.A-1 and the same was informed to the first plaintiff, P.W.1. But, there is no reason as to why despite the

wrong particulars, the defendant put his signature. But, the fact remains that it is a mutual mistake committed by both. In that situation, in my view,

Section 26 of the Specific Relief Act would clearly apply.

In fact, the trial court has elaborately discussed the evidence of both P.W.1 and the deposition given by the defendant in the earlier suit

threadbare and come to the correct conclusion that it was a mutual mistake. This finding, in my view, is perfectly valid and justified.

Regarding second aspect, much was said by the learned Counsel for the appellant by citing the decisions in Jainab Bibi Saheb v. Hyderally

Saheb 38 M.L.J. 532 and Ayyavu Thevar Vs. The Secretary of State for India in Council, that the deposition given by D.W.1 in the earlier suit

cannot be admitted in the evidence, as it is inadmissible. This point, in my view, does not have any force.

Section 33 of the Evidence Act does squarely apply to this case, since Section 33 provides that the evidence given by a witness in an earlier

judicial proceeding is relevant for the purpose of proving in a subsequent judicial proceeding when the proceeding was between the same parties.

As a matter of fact, when the deposition given by the defendant in the earlier suit was marked, no objection was raised by the defendant with

regard to the admissibility and moreover, there was no cross-examination with reference to the said deposition when P.W.1, the plaintiff was in the

box in the present suit.

Under those circumstances, it cannot be contended that the deposition given in the earlier proceeding cannot be said to be inadmissible.

In view of the above discussion; the contentions urged by the learned senior counsel for the appellant with regard to both the aspects, in my

view are untenable and consequently, the same are liable to be rejected.

In the result, the appeal is dismissed. No costs.