Calcutta High Court
Sambhu Nath Dalal And Anr. vs Radharaman Middya And Ors. on 13 June, 2002
Equivalent citations: (2003)1CALLT301(HC)
Author: D.K. Seth
Bench: Dilip Kumar Seth
JUDGMENT D.K. Seth, J.
1. The appeal : This appeal arises out of a suit for partition passed by the Assistant District Judge, Bankura in Title Suit No. 78 of 1993 on 10th August, 1994. The facts of this case are almost admitted.
The scope of challenge by the Appellants :
2. Mr. Roychowdhury, learned counsel appearing for the appellants, challenges the said judgment and decree only on one ground that the plaintiffs, who claimed title through Parulbala deriving title from Man Kumari, have acquired no interest in the property in view of the fact that the plot, which is numbered as 314, devolved upon Man Kumari, who, admittedly, bequeathed the same by way of gift in favour of Parulbala through a deed describing the same as plot No. 114.
2.1 The plaintiffs purchased the land from Parulbata. In the deed executed by Parulbala, the mistake in the description of plot number was mentioned. But in the suit for partition, the plaintiffs did not take any step either to apply for rectifition of the said mistake in the deed, nor any deed of rectification was obtained by them from Parulbala nor from Man Kumari, as the case may be. No specific prayer for declaration of title was asked for in the suit. The prayer (a) related to preliminary decree for partition declaring 5 annas share in the property. Therefore, Mr. Roychowdhury contends that the plaintiffs have acquired no title to the property, since the deed, where there was a mistake in the description of the property, did not convey the title thereof to the plaintiffs. Unless there is any rectification, no title can be claimed by the plaintiffs.
Submission of the Respondents ;
3. Mr. Mullick, learned counsel appearing for the respondents, pointed out that the defendants had also purchased three annas share of the same property from Parulbala. Therefore, they are estopped from disputing the title of Parulbala. He has also pointed out to the relevant portion of the judgment, which is at page 43 of the Paper Book. The learned counsel for the respondents has also pointed out that the learned trial Court had dealt with the said question and had found that this point has no foundation.
Reply of the Appellants:
4. Mr. Roychowdhury pointed out that the defendants/appellants had purchased three annas share of the said property in Plot No. 314 by a deed in which both Parulbala and Man Kumari were the vendors. So far as Man Kumari is concerned, there was no dispute with regard to the plot since in the deed, by virtue whereof Man Kumari acquired title, the plot number was correctly mentioned. Therefore, the mistake in the deed executed by Man Kumari in favour of Parulbala cannot be a ground either estopping the defendants from raising the question or from preventing them from acquiring title in view of the fact that Man Kumari was party to the document through which the defendants had acquired title. Therefore, the judgment so far as this question is concerned, cannot be sustained.
Admitted facts ;
5. We have heard the learned counsel for both the parties. Both Mr. Roychowdhury and Mr. Mullick agree that the facts are admitted. Mr. Mullick has not disputed the facts as contended by Mr. Roychowdhury nor Mr. Roychowdhury has disputed the facts contended by Mr. Mullick. We also find that the facts are admitted. The relevant portion on which Mr. Mullick has relied upon, is as follows :-
"On perusal of the deed executed by Man Kumari in favour of Parulbala, I find that excepting plot numbers, other particulars of the suit tank viz: area name of mouza were correctly written in the deed. In the subsequent deeds also, it has been mentioned in the recital thereof that there was mistake in the plot number of the suit tank in the previous deed executed by Man Kumari in favour of Parulbala. The most significant fact in this connection is that Baidyanath, the predecessor in interest of the defendant Nos. 2 and 3 purchased some share from Parulbala i.e., the transferee from Man Kumari. It is true that no deed of rectification and/or any suit was subsequently instituted praying for rectification of the plot number. But by the subsequent purchase made by Baidyanath from Parulbala, it becomes clear that the mistake in the plot number of the suit tank was admitted by the predecessor in interest of the defendants. Such being the position, it cannot be said that the deed of the plaintiffs is void or inoperative because of the mistake of plot number of the suit tank. In other words, the defendants are estopped by their conduct from challenging the deed of the plaintiffs on the ground of mistake of plot number of the suit tank".
Acquiring of title by the parties:
6. On a plain reading of the finding, it is shown that the learned trial Court had proceed that both the plaintiffs and the defendants had acquired title, in respect of five annas and three annas share respectively, of the same plot from Parulbala. If it is so, in any event, this finding cannot be interfered with.
6.1. The defendants are estopped from raising the question of title. Inasmuch as, in that event, they also could not have acquired any title to the property. But the disputed fact remains that the plaintiffs had acquired title from Parulbala, who had acquired from Man Kumari through a deed, which contained a wrong description of the plot. Whereas the defendants had acquired title through a deed in which both Man Kumari and Parulbala were parties. There is no dispute that in the document through which Man Kumari had acquired title, the plot number was correctly mentioned. Therefore, if we ignore the deriving of title from Parulbala by the defendants, still then the defendants can be said to have acquired title from Man Kumari since Man Kumari was party to the document. Therefore, the defendants' title cannot be questioned oh those grounds.
6.2. The title is conveyed through a registered document. If the particulars of a plot is wrongly described, though it can be understood from other relevant facts, yet it remains a mistake, requiring rectification of the deed registered under the Registration Act or through a suit filed under Section 26 of the Specific Relief Act.
6.3. In the present case, admittedly, in the pleading, there was no case made out seeking to claim rectification of the mistake in the deed, nor there was any such prayer made during the proceeding of the suit. No prayer is made even before this Court for such rectification of the mistake by way of amendment or otherwise.
6.4. On this ground, Mr. Roychowdhury contended that at this stage the plaintiff cannot claim for rectification and seek any relief to that effect and, therefore, the appeal should be allowed and that part of the finding should be set aside. In Case, that part of the finding goes, in that event, according to Mr. Roychowdhury, the plaintiff would be non-suited in view of the failure to acquire title on account of non-passing of the title by reason of the mistake in the deed through which his title is sought to be acquired.
Section 26 Specific Relief Act:
7. There might be some substance of the contention of Mr. Roychowdhury, but the question remains that even if it is presumed that no title was passed by reason of the deed through which the plaintiff had acquired title, even then, Section 26 may come to the aid of the plaintiff. Section 26 of the Specific Relief Act, 1963 provides as follows :-
"Section 26:(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956 applies) does not express their real intention, then-
(a) either party or his representative in interest may institute a suit to have instrument rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified, or
(c) a defendant in any such suit as is referred to in Clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument, is sought to be rectified under Sub-section (1), the Court finds that the instrument through fraud or mistake, does not express the real intention of the parties, the Court may, in its discretion, direct rectification of the instrument so as to express that intention so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the Court thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:
Provided that where a party has not claimed any such relief in his pleading, the Court shall, at any stage, of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim."
7.1. From a plain reading of the section, it appears that the said provision provides that such rectification may be made or asked for by either of the parties or the representative in interest, who may institute a suit to have the instrument rectified. Such preference may also be made in any other suit in which incidentally such question may arise either by the plaintiff or by the defendant as provided in Clauses (b) and (c) of Section 26 of Subsection (1) of the Specific Relief Act.
7.2. Sub-section (4) provides that no relief for rectification of an instrument can be granted to any party unless it is specifically claimed. Admittedly, Mr. Mullick's client, namely, the plaintiff had neither pleaded in the plaint nor had specifically claimed for rectification, but the situation is saved by the proviso to Sub-section (4) of Section 26, which entitles the Court at any stage of the proceeding to allow the party to amend the pleading for including such claim. At this stage, Mr. Mullick prays that the plaintiff may be given leave to amend the pleading for including the claim for rectification of the deed.
7.3. The contention of Mr. Roychowdhury that the rectification could be claimed only by Parulbala does not find support from the specific provisions contained in Section 26, which entitles the representative in interest to apply for rectification as was held in Shanti Ranjan Das v. Dasuram reported in AIR 1957 Assam 49. In the said decision it was held that even a representative in interest may apply for rectification. However, such rectification cannot affect the right of the third party. The defendants themselves having purchased part of the suit property and having not acquired, admittedly, any portion of five annas share of Parulbala transferred to the plaintiff, it cannot be said that any right of a third party is affected, since no one is staking any claim in respect of that five annas share alleged to acquired by the plaintiff, 7.4. In any event, in the present case, it appears that the defendants had also purchased three annas share from Parulbala as well as Man Kumari added as party to the document, but at the same time, the defendants did not exclude Parulbala and purport to purchase it from Man Kumari alone. Therefore, though they might dispute, but they have also not taken an undisputed stand that Parulbala had no title by excluding her in the deed by which they had acquired title.
Extent of the scope of Section 26 specific Relief Act:
8. Section 26 is an enabling provision. It enables a transferee to seek relief by rectification. But such rectification is not the only remedy (Palani Velappa v. Nachappa AIR 1919 Mad. 247). He can sue for a declaration that the property belongs to him without seeking rectification. In such a case he can avail himself of the benefit of the provisions of Sections 95 to 97 of the Evidence Act. The failure to resort to Section 26 cannot deprive the purchaser of the rights conveyed to him by the sale deed (Barsati v. Sarju Prasad, AIR 1939 Oudh 10; Rikhiram v. Ghasiram, ). A suit for declaration can be maintained without rectification of khasra number mentioned in the sale deed (Vaikunthi Bai v. State of MP, 1987 MPLJ 469). If the plaintiff can prove his title to the property, he can seek a decree for declaration of title without seeking the relief of rectification of the document of title. Under Section 26, it is open to the Court to give effect to the real intention of the parties that was arranged and arrived at by agreement between them before it was reduced into writing (Shanti Ranjan Das v. Dasuram, AIR 1957 Assam 49). In Rangaswami v. Souri Aiyangar, ILR 39 Mad. 792; Abdul Hakim Khan v. Ramgopal AIR 1922 All. 42; Sovhaji v. Nawal Singh, AIR 1928 Nag. 4; Nandarani v. Jagandra AIR 1923 Cal. 53). In William Charles Bunns v. W.N.T. Avery Limited , it was held that a purchaser is not bound to institute a suit for rectification since this section is an enabling one. If a purchaser does not utilise the benefit of this section, it would not deprive him of the rights conveyed to him.
The Change in 1963 Act:
8.1. After the change brought about in the 1963 Act, such relief can be obtained in any suit not specifically brought for the purpose. It can be asked for if pleaded in the pleadings either initially or by amendment at any stage. The Court is also entitled to give equitable relief, if necessary, in the form of rectification of instrument, but the party is bound to prove the mutual mistake. It is the intention of the parties, which is to be given effect to. The intention is to be gathered from the deed itself. If from the deed, it can be ascertained that the intention was to transfer a particular property, a mere mistake would not defeat the conveyance. It can be rectified or even a declaration can be asked for without such rectification, 8.2. Admittedly, in the present case, no such declaration was asked for neither any pleading was made nor any relief to that extent was sought for. However, it was proved that it was the same property, which was sought to be conveyed. The learned trial Court had found to that effect on the basis of the materials on record. Therefore, in order to obtain the relief, one has to seek a declaration with the aid of Sections 95 to 97 of the Evidence Act through proof. Though, it was proved but no such declaration was asked for in respect of the title. No such issue was also framed. Therefore, it is a case where Section 26 can be applied to or else the plaintiff has to incorporate a prayer for declaration of title, which is absent in the suit. Therefore, it is case more apposite where Section 26 should be attracted.
The scope :
8.3. Section 26 makes it clear that (1) it can either be pleaded in the pleadings; or (2) such pleadings can be brought about at any stage of the suit by way of amendment; (3) the relief can be sought for by either of the parties; (4) the relief can be had at any stage of the suit; (5} even if it is not asked for, the Court is not precluded from granting such relief after allowing leave to ask for such relief to the parties.
Available to representative in interest:
8.4. It is not only the parties to the document, who can take advantage of such relief available under Section 26. Such relief is available also to the 'representative in interest'. This expression includes not only heirs, executors, administrators or assignees but also transferees. The Court can interfere not only in a case between the parties to the document, but also between those claiming under them in privity. The expression is wide enough to include all personal representatives. However, it restricts the operation in between the parties or their representatives in interest and not to others.
Limitation :
8.5. The limitation with regard to the relief is related to person, who has come to the Court. The limitation is governed under Article 113 of the Limitation Act, 1963, which is three years either from the execution of the document or from the date of notice or knowledge about the mistake. The time would commence to run from the date of discovery of the mistake. There cannot be any time limit for discovery of the mistake (Gerela Kalita v. Dhanneswar, AIR 1961 Assam 14). The limitation is to be computed from the date on which the cause of action arises. Cause of action arises only when the person suing comes to know about the mutual mistake in the instrument that it does not express the real intention of the parties. In Balo v. Kuklan , the Privy Council had held that there can be no right to sue until there is accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe the right by the defendant against whom the suit is instituted.
The situation on facts :
8.6. In the present case, the suit is for a different relief in which this question comes for scrutiny. As such it is dependent on the cause of action for which the suit is filed. Until the right is denied, there cannot be any cause of action. The vendor did not deny the title passed through the conveyance. It is a purchaser of a different share from the same vendor, who is raising this dispute. Such a party cannot take advantage, when such party itself had derived title to another part of the same property from the same vendor.
Conclusion :
9, Therefore, it can very well be argued that the defendants had admitted Parulbala as owner. At the same time, as rightly pointed out by the learned trial Court that the description of the property tallies in all aspects in both the deeds except the mistake in the plot number instead of 314, it was 114, which can safely and surely be presumed to be clerical mistake, with regard to which there cannot be much doubt.
9.1. In such circumstances, even if the question of limitation might have been raised, though it is not taken by Mr. Roychowdhury, we, therefore, grant leave to apply for amendment of the pleading and to include the claim for rectification of the deed in the suit for partition.
9.2. That defendants have purchased in the year 1982 whereas the plaintiffas have purchased in the year 1992. The suit was filed in the year 1993. Therefore, it is well within the period of limitation as was held in AIR 1961 Assam 14, inasmuch as, the limitation for filing such a suit is governed by Article 113, which provides a period of three years, namely, from the date of execution of the documents, which was admittedly executed in the year 1992 and the suit having been filed in the year 1993, the same cannot be said to be hit by the mischief of limitation, so far as the plaintiffs are concerned.
9.3. Mr. Roychowdhury also pointed out that the mistake was committed in the deed, which was executed in the year 1962. Therefore, the limitation had long expired. But this question will not apply to the representative in interest, who had discovered it only in the year 1992 when the deed was executed. If it can be claimed by the representative in interest, in that event, the limitation would run, so far as the representative in interest is concerned, as they have discovered discrepancy in the year 1992. Thus, the limitation is to be counted from the date of discovery of the discrepancy by the representative in interest, who has an independent right to seek rectification.
Order :
10. In such circumstances, this appeal is allowed in part only with regard to the finding where the Court did not deal with the question of acquisition of title of the defendants from both Man Kumari and Parulbala, which is distinguishable feature on the basis whereof the finding that was arrived at could not be supported in the absence of any prayer for declaration of title and the rectification is required to be carried out with liberty to the plaintiff to amend the pleading for including the claim for rectification of the said deed. If such application is filed, the Court will allow the same and incorporate the claim for rectification in the said deed and shall decide the question after allowing rectification in view of the provisions contained in Section 26 of the Specific Relief Act.
10.1. Having regard to the facts and circumstances of this case, there being only discrepancy in the description of the plot number, the Court should deal with the same only having regard to the fact that the other descriptions tally between themselves in both the deeds and shall pass a fresh decision on the finding, quoted above, which is hereby set aside. The balance part of the judgment, which has since not been assailed, has not been interfered with and is hereby affirmed.
10.2. Mr. Roychowdhury also pointed out that the appellants had applied for pre-emption, which should also be considered. But this question is outside the scope or the purview of the appeal at this stage. Mr. Mullick, however, contended that in law and on facts, the pre-emption is not available to the defendants. Since it is outside the scope or purview of the appeal, we are not inclined to go into those questions. Such a question shall remain open to be decided at appropriate stage by the learned trial Court, if raised, in accordance with law, without being influenced by any observation made in this judgment.
10.3. The appeal, therefore, succeeds only to that extent, as indicated above in part with regard to the finding of the acquisition of title by the plaintiff by reason of the said defect in the deed. There will be no order as to costs.
If an urgent xerox certified copy of this order is applied for, the same is to be supplied to the applicant at an early date, subject to compliance of all the required formalities.
J. Banerjee, J.
I agree.