MODE OF RECTIFICATION

Legal instrument is a legal term of art that is used for any formerly executed written
document that can be formally attributed to its author, records and formally expresses a
legally enforceable act, process, or contractual duty, obligation, or right, and therefore
evidences that act, process, or agreement.

"Instrument" includes every document by which any right or liability is, or purports to be,
created, transferred, limited, extended, extinguished or recorded – As per Indian Stamp Act.

“Rectification” is a term which may be understood as the correction of an error in an

instrument with a view to give effect to the real intention of the parties.

“Cancellation” is a term often used interchangeably with Rescission, but whereas only a
document can be canceled, any agreement—whether oral or written—can be rescinded.
Cancellation is distinguishable from reformation, which is an action by a court to enforce a
document after its terms have been reframed in accordance with the intent of the parties, in
that cancellation abrogates the duties of the parties under the instrument.
RECTIFICATION OF INSTRUMENTS:- Sec.26 of the present Act corresponds to Sec.31 of
the old Act. Sec. 26 of Specific Relief Act, 1963 provides as to when an instrument may
be rectified and reads as under: -
Sec.26. When instrument may be rectified:-
(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, 2013, applies) does not express their real intention, when –
(a) either party or his representative in interest may institute a suit to have the
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.

Section 26 is only an enabling provision: Though Section 26 entitles a party to seek the
relief of rectification, rectification is not the only remedy whether a purchaser rectifies a
clerical error in a sale deed or not, it is immaterial since the rights conveyed to him under
the sale deed will not be affected in any way since Section 26 (Section 31 of the old Act) is
only an enabling provision. A party can institute a suit for declaration without seeking
rectification and in such a case he can avail the provisions of sections 95 to 97 of the
Evidence Act.

Section 26 of the Specific Relief Act, 1963 and Section 92 of the Indian Evidence Act, 1872:
Any party to a contract can prove fraud or mutual mistake in a written contract, and Section
92 of the Evidence Act does not exclude it.
The combined effect of proviso (1) of Section 92 of the Evidence Act and Section 31 of the
Specific Relief Act (Old) is that a defendant can prove any mistake in the expression of a
contract notwithstanding that he had not filed a suit for rectification. The defendant can
establish by an evidence that though a document was executed in the form of an agreement
of sale, in fact it was a security regarding the loan transaction.

When, through fraud or a mutual mistake of the parties: A contract or other instrument
can be rectified when (1) it does not express the real intention of the parties (2) through
fraud or a mutual mistake of the parties and it can be rectified at the instance of (1) either
party to the contract or instrument in writing or his representative – in – interest.
A party can obtain rectification of a contract or other instrument when he is able to
show that there has been fraud or mutual mistake. Where certain alterations in the area of
land were made with the consent of the parties, a suit for rectification is not maintainable.
When through fraud or mutual mistake of the parties a contract or other instrument in
writing does not truly express the real intention of either party, such parties or their
representatives in interest can institute a suit to have the instrument rectified and if the
Court feels that there has been fraud or mistake in framing the instrument, the Court may in
its discretion, rectify the instrument so as to express the real intention of the parties but
with out causing prejudice to the rights acquired by third persons in good faith and for
value.
Remedy under Section 26, para. (1): As plaintiff a person entitled to relief under Section 31
can sue to recover the right property. He can bring a suit for a declaration that he is in
possession of the suit property bearing a certain survey number though in his document of
title it is described by a different survey number. As defendant he can protect himself against
dispossession.
ABSENCE OF PRAYER FOR RECTIFICATION:
When the mistake is alleged by way of a defence, evidence can be given to prove mistake
although no rectification is sought.

(Rangaswamy v. Souri, AIR 1916 Mad 519). Under the provisions of Sections 95 and 97 of
the Evidence Act oral evidence may be let in to prove a mistake even without claiming
rectification.

(Karuppa Goundan v. Perlatambi, ILR 30 Mad 397). Under the first proviso to Section 92 oral
evidence may be let in to prove a mistake when the mistake is such that relief can be claimed
under Sec.26 of Specific Relief Act.

When a property is wrongly described in the sale deed on account of defendants fraud, the
plaintiff can sue for a declaration of his title to the property and for possession and such
relief may be granted to him without putting him to the necessity of filing a separate suit for
rectification. The coparceners in a joint family may sue for possession ignoring an invalid gift
made by the Karta.
Section 26, para (1) as a defence:- When a suit is brought for breach of a contract or for
other relief on the basis of such breach, can the defendant plead that the contract does
not correctly expressed the bargain between the parties ?

In Anarullah v. Koylash Chunder (ILR 8 Cal.118), the defendant in a suit for rent sought to
set up a defence that the lease was fraudulently drawn up and did not correctly express
the agreement between the parties. He claimed that it was valid as to a part and invalid as
to the rest. It was held that his remedy was to file a suit for rectification.

This is now clear from Section 26, para (1), clause (c). In Shidappa v. Rudrappa, AIR 1954
Bom 463, the defendant pleaded in a suit for possession that the suit land had been
purchased by him under an earlier sale deed wherein by a mutual mistake it was not
included in the schedule to that sale deed. At the time when this defence was raise a suit
for rectification of sale deed was in time and so defendant was allowed to raise that
defence.

WHO CAN MAINTAIN AN ACTION FOR RECTIFICATION?:-

Either parties to a contract or their legal representatives alone can maintain an action for
rectification under this Section and not a third person. A stranger to the instrument has no
locus standi to maintain a suit for its rectification.
Proper parties:- When a suit is brought for rectification of sale deeds other parties who
would be affected by such rectification are proper parties. They can apply to be impleaded
as defendants. (Ram Suchit v. I Additional Judge, Gorakhpur, AIR 1986 All.149)

Effect of rectification:- A deed rectified by the Court so as to conform to the true intention
of the executing party at the moment of execution must be taken to be his deed and to have
been his deed in the rectified form as from the date of execution. After the rectification the
written agreement does not continue to exist with a parol variation;
it is to be read as if it had been originally drawn in its rectified form. When the Court
rectifies a deed of transfer it becomes a conveyance and so no further conveyance is
required. The decree should declared that the deed ought to be rectified, point out the way
in which it should be rectified and direct and endorsement of the decree on the conveyance.

Time for rectification:- Section 26 does not fix any time limit for the discovery of mistake or
fraud. It is the discovery of the mistake or fraud that furnishes the starting point of
limitation.
Compromise Decrees:- The principle laid down in this Section, for rectification applies to
compromise decrees also. A compromise decree is not the result of the adjudication
between the parties and it is an instrument of contract made by the hand of the Court put
by the will of the parties and a decree in which a mistake has crept on account of mutual
mistake of the parties in an earlier transaction which extends into judicial proceedings
automatically as it were without mistaken the part of the Judge is on a similar footing with
a compromise decree in which there is a mistake due to mutual mistake of the parties. A
compromise decree stands on no higher footing than rectified if owing to fraud and
mistake it does not represent the real contract between the parties.

Not being the articles of association of a company to which the Companies Act, 2013
applies:- This Section cannot be made applicable to articles of association of a company as
they can be altered by the company by special resolution and the words “not being the
articles of association of a company to which the Companies Act, 2013 applies”, clearly go
to show the exclusion of articles of association of a company from the purview of this
Section.

Requirements of Section 26, para (2):- Existence of fraud or mutual mistake:- The essential
condition to be satisfied before an instrument can be rectified is that there should be
proof that the true intention of the parties has not been expressed in the instrument
owing to fraud or common mistake.
Fraud:- “Fraud” means and includes any of the following acts committed by a party to a
contract or with his connivance or by his agent, with intent to deceive another party
thereto or his agent or to induce him to enter into the contract.
1. The suggestion as to a fact, of that which is not true by one who does not believe
it to be true.
2. The active concealment of a fact by one having knowledge or belief of the fact.
3. A promise made without any intention of performing it.
4. Any other act fitted to deceive.
5. Any such act or omission as the law specifically declares to be fraudulent.

Explanation:- Mere silence as to facts likely to affect the willingness of a person to enter
into a contract is not fraud unless, the circumstances of the case are such that, regard
being had to them it is the duty of the person keeping silence to speak or unless his
silence is in itself, equivalent to speech. The term “Fraud” is not defined under this Act
and by virtue of Sec.2(e) of this Act, the same meaning as may be assigned to such a term
under the Indian Contract Act, has to be taken as the meaning of such a term under this
Act too.
Mutual mistake:- The term “mutual mistake” means common mistake on the part of both
parties to contract. A party seeking rectification has to establish that there was a prior
complete agreement which was reduced to writing in accordance with the common
intention of the parties and by reason of a mistake the writing did not express the real
intention of the parties. There cannot be rectification where the mistake was not a mutual
mistake but only a mistake committed by the Scribe. There cannot be rectification on the
basis of unilateral mistake not amounting to fraud. A mutual mistake can be established
by any one of the parties to a contract.

Real intention of the parties:- In a suit for rectification of deed, it is not necessary to have
evidence of a binding contract antecedent to the instrument which is sought to be
rectified and it is enough if the plaintiff proves ;beyond reasonable doubt the concurrent
intention of the parties at the moment of executing the instrument and the instrument
fails to give effect to that concurrent intention.

The rectification of instrument always involves the real prior agreement between the
parties and the absence of such real agreement in fact in the document as a result of
fraud or mutual mistake and hence the Court has to find out whether there has been
fraud or mistake in framing the
instrument and further the Court has to also ascertain the real intention of the parties.

So far as rectification can be done without prejudice to rights acquired by third persons
in good faith and for value:- The courts will not be inclined to rectify instruments where
such rectification may cause prejudice to the rights acquired by third persons in good faith
and for value. A purchaser who does not make enquiries as to the title of the vendor and
intends to take advantages of the mistake cannot be termed as a bona fide purchaser
without notice.
Burden of proof:- The burden of proof lies heavily on the person seeking rectification.

Laches: - Mere laches may not be a sufficient ground for refusing the relief of rectification
but unreasonable delay can be considered to refuse such a relief.

Failure to rectify the deed does not extinguishable title:- The mere failure to rectify the
deed will not extinguish the title to the property which was in fact sold but not properly
described by mistake.
Limitation:- There is no specific Article relating to rectification under the present
Limitation Act and hence such suits are governed by Article 113 but under 1908 Act
Articles 95 and 96 were provided for suits for rectification.
Cases for rectification
There are several cases regarding the rectification of instruments.
Sartaj And Another vs Ayub Khan (2019)
In this case, it was held that the appellant filed a civil suit with the allegation that the
plaintiff purchased property (land) from the defendant by registered sale deed for
valuable consideration but due to inadvertent mistake and misunderstanding in the sale
deed they are taking undue advantage for the same. In the judgment it was held that the
appeal is liable to be allowed and the judgment passed by the lower appellate court is
liable to set aside and the judgment and decree passed by the trial court are liable to be
restored.
Noordin Esmailji Kurwa vs Mahomed Umar Subrati (1939)
The case began with an agreement between the Nevitia Floor Mills and Sardar Haji
Badloo Subrati. The land has been divided into six parts. And the dispute regarding the
land began. At last, it was held that a suit for rectification of deed on grounds of mutual
mistake if the rights of third parties have not intervened. The date of the notice of the
mistake is the date from which time runs.
Manik Lal And Ors. vs Rajaram And Anr. (2003)
In this case, it was held that case was filed by the Rajaram and Laxminath on the grounds
that plaintiff is co-owner and joint holder of the agriculture lands, before filing the
complaint the defendant entered in the field of plaintiff and threatened plaintiff as
defendant doesn’t have any right regarding the land. The appellant also said that all heirs
do have a right on the land. Lastly, it was said that appeal is allowed.
Shamim Ahmed Siddique vs Society Ltd. And Ors. ( 2008)
In this case it was held that rectification of an instrument under 31, it must be proved
that it was through the mutual mistake of the parties that the instrument in question did
not truly express the intention of the parties. And it must be proved that there has been
a mistake in framing the instrument, and it must ascertain the real intention of the
parties in executing the instrument. If the court is satisfied by these are the two
conditions, the court has the discretionary power to rectify it.
Conclusion
According to me, the rectification of an instrument is necessary, as because of this
section parties can be saved from being in any kind of fraud or if there is any mistake
occurs in a contract by the parties then with the help of section 26 one can complain in
the Court regarding the same. As there are certain provisions within which if the court
does not find it justified then the rectification may not be enforced.
References