RECTIFICATION AND DECLARATORY DECREE

Rectification of instruments

 A written transaction is called an instrument. Sometimes, an instrument may fail to express the
intention of the involved parties. Rectification of such an instrument may become necessary.
Specific Relief Act, 1963 provides help towards parties who want to have their documents
rectified. It is closely related with documents mistakenly executed, which are at a later point
found to be void or which become void. These documents ought to be cancelled. However,
Specific Relief Act provides relief from such kinds of documents.
 Rectification of contract means to rectify the contract which is founded on fraud or mutual or
common mistake of the parties. It further means, taking out the mistake from the instrument
of contract and put it right.
 As per section 26 of Specific Relief Act, 1963- When through fraud or a mutual mistake of the
parties, a contract or other instrument does not express their real intention, then either party
or their representatives or the plaintiff or the defendant may institute the suit to have the
instrument rectified.
 In such suits, court may in its discretion direct rectification of instrument if the court finds that
the instrument does not express the real intention of the parties.
 Bathappa v/s. Sanjivan, Mysore L.J- The sale deed of a certain Land sold to B stated that the
land measured 50 square yards. The plaintiff who was a purchaser of a land sued for a
declaration of his title to the land as described in the sale deed. The defendant contended
that, what was intended to be sold was only 50 square feet and that the mistake was made by
the document writer. It was held that the defendant could resist the suit on the ground of
alleged mistake and could maintain a suit for rectification.
 Articles of association of the Company cannot be rectified, as the same may be altered by
passing of special resolution.
 Further, as per section 26, either plaintiff or defendant or their representatives may constitute
a suit for rectification of the instrument.
 In a suit under section 26, an instrument or contract can be rectified first and then if the party
claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically
enforced.
 The relief of rectification of an instrument shall be granted to the party only when it is
specifically claimed, however, the court may subsequently allow a party to amend his pleading
for including such claims.
 In Raipur Mfg. Co. Ltd. v. Joolaganti Venkatasubba Rao Veerasamy & Co. (AIR 1921 Mad 664), it
was held that where in the course of a suit for damages for breach of contract, the plaintiff
contends that if there is a clerical error in the document embodying the contract, it is not
always necessary that a separate suit should have been brought for rectification of the
 document and it is open to the court in a proper case to allow the plaintiff to amend the plaint
and ask for the necessary rectification.

Declaratory Decree
 If any person entitled to any legal character, or to any rights as to any property is denied by
another and if any suit is filed by the person so denied it is called a declaratory suit. A
Declaratory decree is a binding declaration of right in equity without consequential relief. In
simple terms, a declaratory decree is cone which settles the right and removes the confusion of
the status of the party.
 Provision regarding declaratory decree has been provided in sections 34 and 35 of the Specific
Relief Act, 1963.

 Essentials of a declaratory suit

- The person filing the suit must be entitled to legal right or any right as to any property;
- The person against whom the suit is to be filed must actually be denying the right or is
interested in denying the right of the plaintiff;
- Passing a declaratory decree is on the discretion of the court.

 Effect of declaration

- A declaratory decree is binding only on the parties to the suit and upon the representatives
of the parties to the suit. So, declaratory decree is “in personam” and not “in rem”.
- A declaratory decree resolves the legal uncertainty of the rights and status of the parties.
However, passing of a declaratory decree is a matter of discretion of court and it cannot be
claimed a right.

 Essentials of the relief/ Requisite for a declaratory action

- The plaintiff is at the time of the suit entitle to any legal character or to any right as to any
property. The term legal character means and includes any right to which a person is
entitled. e.g. right to vote.
- The defendant has denied or is interested in denying to the character or title of the
plaintiff. There must be some present danger or determent to his interest. So that a
declaration is necessary to safeguard his right and clear the mist.
- The denial must be communicated to the plaintiff in order to give him cause of action
- The declaration asked for is a declaration that the plaintiff is entitled a legal character or
to a right to property.
 - The plaintiff is not in a position to claim further relief than a bare declaration of his title. A
person who is able to seek for further relief, should not be allowed mere declaratory relief,
if he omits to do so.
- A declaratory decree cannot be obtained as a matter of absolute right. The court has a
discretion to grant it or not. The discretionary power to grant declaratory decree, should
be exercised to put an end to dispute which have lasted for considerable time: (Indra
Kumar v/s. Baldeo, 39 M.L.J.

 Illustration: A is in possession of certain property. B alleging that he is the owner of the