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3. Whether in the facts and circumstances of this case the Deed of Rectification dated 7-6-1977 (Exhibit 57) to Registered Deed of Sale dated 25-6-1976 (Exhibit, 46) needs to be registered under Section 17(1) of the Indian Registration Act?

4. Whether in the facts and circumstances of this case when the Deed of Rectification dated 7-6-1977 (Exhibit 57) has been exhibited by the Trial Court, and evidence of attesting witness thereto has been permitted to be lead (w/o objection from the plaintiff) and execution and signature and handwriting has been proved as per Sections 67 and 68 of the Indian Evidence Act whether the Deed of Rectification can be relied upon?

16. In order to overcome this problem the defendant is heavily relying upon Rectification Deed dated 7-6-1977 - Exhibit 49. Rectification deed is purported to have been signed by the plaintiff wherein he is alleged to have written that description given in the original sale-deed of the land sold to the defendant is 4 acres and 15 gunthas was a mistaken description and he had in fact sold the entire area i.e. 8 Acre 30 gunthas.

17. The plaintiff has clearly denied the execution of rectification deed. In cross-examination the plaintiff was confronted with said document. However, he specifically denied having executed he said document and also denied his signature. He also stated that he does not know two persons who are alleged to have attested this document. He has also denied to have gone to the Sub-Registrar for Registration. (It is to be noted that this document i.e. Rectification Deed is unregistered). No attempt is made in the cross-examination to bring on record the circumstances in which the rectification deed was required to be executed and at whose initiative the plaintiff executed the same. Apart from the said vital fact that goes against the defendant in that regard the defendant did not enter the witness box at all. There is no evidence of the defendant on oath about the circumstances in which even the original transaction took place and the circumstances in which the so-called rectification deed was brought into existence. Further there is no evidence of the defendant on oath about execution of the Rectification Deed by the plaintiff in his presence. Nor the defendant gave any evidence about the presence of the attesting witnesses and from where they were called and why document was not registered. There was no reason for the defendant to withhold his evidence and therefore strong adverse inference has to be drawn against the defendant not only regarding this issue but regarding his entire defence. Even though defendant has tried to prove the attestation by examining one witness, that evidence too is not sufficient in the circumstances of the case and for non-examination by the defendant himself on any issue involved in the suit. Therefore without going into the question as to whether Rectification Deed requires registration or not, this issue also has to be answered against the Defendant.

18. Since Exhibit 57 i.e. Rectification Deed is not proved to have been executed by the plaintiff, its contents cannot be used against the plaintiff as admission by the plaintiff or the fact which is against his interest. Even on the point of registration of the rectification deed. Mr. Rane contended on the basis of judgment of Madras High Court Arumoorthi Chettiar v. Secondary Education Committee of Valtala Sangam of Vadugupati, wherein the Madras High Court held that the document of rectification consequent upon mutual mistake does not require registration. In that case one Sankaranarayana Pillai executed sale-deed on 22-7-1943 in respect of 87 Acres and 28 cents. It is property of two vendees. Subsequently he executed document Exhibit B-4 by Sankaranarayana Filial to the effect that entire area of 111 acres and odd was agreed to be sold under Exhibit B-23 and that by a mutual mistake 24 acres and odd set out in Schedule 8. Exhibit B-4 were omitted to be included in Exhibit B-23 and therefore Sankaranarayana Pillai was executing the rectification deed Exhibit B-4 to point out, this mutual mistake. In fact it appears from the judgment of Madras High Court that registration or non-registration was not point of dispute before the Madras High Court. Paragraph 5 of the said judgment reads as under :

20. Though the aforesaid judgment of the Supreme Court is on a different type of document, the so-called rectification deed relied upon by the defendant in this case is of a more serious and severe consequence. It adds to the property already sold 4.15 acres from 8.30 acres and therefore applying the analogy of the Supreme Court Judgment it has to be held that the document requires registration.

21. However, since I am giving my positive findings that the defendant failed to prove the due execution of the rectification deed and has failed to examine himself, his case is required to be rejected outright in this regard.