This article is written by Ilashri Gaur, a law student pursuing B.A. LLB(Hons.) from Teerthanker Mahaveer University (CLLS). This article deals with the need for rectification of instruments under specific relief act or what are its further effects.
Table of Contents
Introduction
Let us first understand the Specific Relief Act,1963. It means an act which provides remedies for persons whose civil or contractual rights have been violated. Whenever there is a breach of contract, compensation or damages are provided for the same, but when the damages or compensation are not of adequate relief then, in that case, the specific relief or preventive relief is provided. Now understand about these terms:
- Specific relief: – it means when a person does a breach of contract and when monetary compensation fails to complete contractual obligation then specific relief is granted.
- Preventive relief: – it means when a person is prevented to do an act, which is not validly liable to do.
Legal instrument is a legal term that is used for any legal written document that is a legally enforceable act, process, obligation, contractual duty, right or obligation.
So basically in simple terms, an instrument is a document by which any rights or liabilities are to be created, transferred, limited, or extended.
The term rectification means the correction of an error which here is in the form of instrument.
‘Rectification of instrument,’ means correcting the errors, here instrument means contract. Rectification of instruments under specific relief act is a fair or an impartial remedy that is granted by the Court when facts are not according to the intention of the parties.
The Specific Relief Act,1963
The Specific Relief Act, means an act which provides relief, that relief is of two types: –
1. Section 5 to Section 35 deals with the specific relief provisions. Specific relief provides recovery from immovable property or movable property or many defences regarding the suit.
Let us take an example to understand it well. ‘X’ is having a property of ‘Y’ and with that property, Y is very much attached because it’s his grandparent’s property due to which ‘Y’ asked ‘X’ to give his property at any cost, ‘X’ agrees to do so and Y give him a cheque of rupees 50 lakhs as an advance payment but ‘X’ refuse to give him the property and he breaches the contract due to which ‘Y’ ask the court to grant him the specific relief and the court grant him.
2. Section 36 to section 42 deals with the preventive relief provisions. Preventive relief is granted at the discretion of the court by the injunction, temporary, or perpetual.
Let us understand with an example, ‘A’ a film actor signs for doing a film. After shooting half of the movie till 3 months, ‘A’ stopped working for that film. The film director sues him and said before the court that damages and compensation are not an adequate relief for him, so the court gives the preventive relief in which ‘A’ cannot sign another film till the months he works in the previous film.
Rectification of Instruments
Section 26 of the Specific Relief Act talks about rectification. Let us understand in more clear terms. Rectification’ means correction and here ‘instrument’ means any legal document/contract.
So rectification of instruments means correction or changes in the contract. Under Section 26 of the Specific Relief Act,1963, it is provided that when any contract may be rectified:
1. When there is a fraud or when there is a mutual mistake by both the parties. Now the person who is entitled for the rectification of instrument are as follows: –
- Either party or his representative can file.
- The plaintiff in any suit can file if any rights arising under the rectification of instruments.
- Defendants can file in any suit as mentioned in sub-clause (B).
2. If in any case in which a contract or instrument is to be rectified under clause (1), the court finds that contract is done by fraud or by mutual mistake of the parties, then the court has discretionary power to rectify it.
3. If parties claim for rectification and the court thinks fit, then it will be specifically enforced.
4. No relief shall be granted until the parties specifically claim for rectification of the instrument.
Modes of Rectification of Instrument
Chapter three of the Specific Relief Act, 1963 deals with the rectification of instruments and Chapter five of the Specific Relief Act, 1963 deals with the cancellation of instruments. Under section 26 of the specific relief act, the modes of rectification of instrument are: –
Fraud
Whenever someone intentionally misrepresents the other regarding the contract, there is a way of rectification of the instrument. Fraud means, when:
- A person suggests a fact which is not true.
- A person hides a fact, which he already knows about.
- A person made a promise without any intention of performing it.
Mutual mistake of parties
The term ’mutual mistake’ means the common mistake on the part of both the parties to contract. A party who wants rectification of the instrument has to establish that there was a prior complete agreement that was reduced to writing in accordance with the common intention of the parties and by reason of mistake the writing did not express the real intention of the parties. If the mistake is not from both the parties but from the scribe then it will not be rectified. A mutual mistake can be established by any parties to a contract. On the basis of unilateral mistake not amounting to fraud, there cannot be rectification.
Real Intention of the Party
The rectification of the instrument always involves the real prior agreement between the parties and the absence of such facts in the agreement of the document as a result of fraud or mutual mistake.
The court has also the responsibility to see whether the parties do have a real intention or they are framing the instrument and further the court has to ascertain for the same.
Requirements For Rectification of Instrument Under Section 26
There are certain requirements under Section 26 of the specific relief act.
- Existence of fraud or mutual mistake: – for the rectification of instrument, one has the proof regarding the fraud and the mutual mistake. The intention must be truthful which is owing to fraud or common mistake.
‘Fraud’ means an act done by any party through a contract to deceive another party to enter into a contract.
‘Common mistake’ means when the mistake in any contract or in any deed done by both the parties.
‘Real intention of the parties’ means it’s not only the party to prove fraud or mutual mistake but also the court has to find out and further the court has to also ascertain the real intention of the parties.
- The burden of proof lies on the person who wants rectification of the instrument.
Parties To Rectification of Instrument
Either party to a contract or their legal representative in interest can take action for the rectification of the instrument under Section 26. Any other person does not have any right to maintain a suit for its rectification. Proper parties can apply for the same. ‘Proper parties’ are those parties when a case is brought for rectification of sale deed at that time the other parties who are affected by it are called proper parties.
Effect of rectification of Instrument
A deed can only be rectified by the court so as to confirm the true intention of the executing party at the moment of execution. After the execution 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 order should be declared that the deed ought to be rectified, point out the way in which it should be rectified and direct an endorsement of the order on the conveyance.
Cancellation of instrument
Section 31 of the specific relief act, 1963 provides the cancellation of the instrument. Cancellation may be ordered when:-
- The person against whom a written instrument is void or voidable and has reasonable cause that such an instrument is causing serious injury to him/her. In that case, the court has the discretion, so it is declared to be true and orders it to be delivered and cancelled.
- If the instrument has been registered under the registration act, the court shall send a copy of the order to that officer in whose office that instrument has been registered and that officer shall not of the copy of the instrument contained in his books for the cancellation.
Cases for rectification
There are several cases regarding the rectification of instruments.
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.
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.
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.
In this case, it was held that the appellants are the son and daughter of late B.P Sandy, he transfers his two houses in favour of his youngest son and daughter but the house which was given to his daughter, ought to have been given to his son and the house which was given to the son, ought to be given to his daughter. At the end, the court held that it is applicable only where it is pleaded and proved that through fraud or mutual mistake of the parties and considered that appeals are devoid of any merit.
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
- Specific Relief Act,1963
- Shamim Ahmed Siddique vs Society Ltd. And Ors. ( 2008)
- Joseph Johan Peter Sandy vs Veronica Thomas Rajkumar & Anr (2013)
- Manik Lal And Ors. vs Rajaram And Anr. (2003)
- Noordin Esmailji Kurwa vs Mahomed Umar Subrati (1939)
- Sartaj And Another vs Ayub Khan (2019)
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