He further argues that under Section 26 of the Specific Relief
Act, 1963, only in case of fraud or mutual mistake of the parties,
contract or other instrument in writing, can rectify the instrument.
He points out that in absence of pleadings relating to fraud or
mutual mistake, allowing rectification of sale-deed would be
contrary to the provision of Section 26 of the Specific Relief Act,
1963.
Section 26, of course, says that it would be open to
a party to institute a suit for correcting the description
of the suit property, but the proviso to Section 26
clearly permits 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 plaint on
such terms as may be just for including such claim.
From a plain reading of the provisions under Section
26 of the Act, there is no reason why the prayer for
amendment of the agreement to correct a part of the
description of the suit property from Chak No. 3 SSM
to Chak No. 3 SLM, later on converted to Chak No. 3
SWM could not be granted. In our view, it is only a
correction or rectification of a part of the description
of the suit property, which cannot involve either the
question of limitation or the change of nature of suit.
In our view, the suit shall remain a suit for specific
performance of the contract for sale and a separate
independent suit is not needed to be filed when the
proviso to Section 26 itself clearly permits either party
to correct or rectify the description of the suit property
not only in the plaint but also in the agreement
itself….”
27. In every sale transaction of land, to avoid further litigation or
any dispute, it is expected that the vendee should verify the title
deeds before entering into the agreement, visit the site and finally
after satisfying all the materials prepare draft sale deed. Therefore, it is not the only duty of vendor but it is the duty of both the parties to the contract for sale of land, to take care while mentioning description of properties in the sale-deed. Thus if there is any mistake in description of properties or boundaries in sale deed the same cannot be said to be a mistake of one party and not of both the parties to such contract.
28. In light of conclusion arrived at by this court that this is a
case of misdescription and not a case of mistaken identity and in a case of misdescription of the field Gat number and the boundaries, the boundaries would prevail over field Gat number, it cannot be said that the mistake in the present case is in respect of a matter which is essential to the agreement, therefore, sections 20 of Act 1872, would not apply to the present case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 121 OF 2005
Sau. Varsha Sahebrao Deshmukh Vs Ghanshyam Madanlal Goenka,
CORAM : ANIL S KILOR J.
DELIVERED ON: 31st JANUARY, 2020
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