Lawrence Jenkins, K.C.I.E., C.J.
1. This is a suit for specific performance of an agreement for sale in which the plaintiffs are the purchasers. They allege that the agreement comprises, in addition to other pieces of property, some warkas land and a house.
2. It has been held by both the Courts that the written document of sale does not in terms comprise either the warkas land or the house.
3. The first Court on that ground dismissed the suit. In the lower appellate Court the point was raised by Mr.Chaubai, who appeared for the plaintiffs, that if the document did not comprise both the warkas land and the house, then that was in consequence of a mutual mistake, and he accordingly applied for leave to amend so as to include in his plaint a claim for rectification. This application was made in January 1905.
4. The Judge of the lower appellate Court acceded to the application notwithstanding the protest of the defendants;and in the result he found that by mutual mistake warkas land
had been wrongly omitted from the document; as to the house, however, he held against the plaintiffs' contention. The result was that in the lower appellate Court a decree for specific performance was passed extending to the warkas land.
5. One of the defendants now appeals to this Court, and he objects before us that the amendment should not have been allowed. We are unable to say that it was not within the discretion of the Judge to allow the amendment, but we think that it may be a question whether it should have been allowed unless the application was made within such time as not to deprive the defendants of any defence of limitation.
6. We have not sufficient materials before us to express an opinion one way or the other on that point, and we do desire not to conclude ourselves from upholding the amendment even if the defendant is thereby deprived of the defence of limitation until all the relevant materials are placed before us.
7. But, assuming for the sake of argument that the amendment was one which the Judge properly allowed, we still think that it was incumbent on the Court not to decide a case on the materials then before it, but to remand the suit in order that the parties might have an opportunity of adducing evidence on this point.
8. Now to establish a right to rectification it is necessary to show that there has been either fraud or mutual mistake. Fraud is out of the question. We only have to reckon with mutual mistake and under the terms of Section 31 it is necessary that the Court should find it clearly proved that there was such mistake. I cannot discover in the judgment that the necessity for clear proof was present to the mind of the Court. It may be that the Judge was satisfied within the meaning of this section, but that does not appear on the face of his judgment.
9. Now this requirement that the Court should find it clearly proved is not a refinement introduced by Section 31 for the first time. This section merely gives expression to what has been laid down by the Courts; and we refer in particular to a decision in Fowler v. Fowler(1859) 4 D. &. J. 250 , where it is said as follows: -
The power which the Court possesses of reforming written agreements where there has been an commissioner insertion of stipulations contrary to the intention of the parties and under a mutual mistake, is one which has been frequently and most usefully exercised. But it is also one which should be used with extreme care and caution. To substitute a new agreement for one which the parties have deliberately subscribed ought only to be permitted upon evidence of a different intention of the clearest and most satisfactory description. Lord Thurlow's language is very strong on this subject: he says, the evidence which goes to prove that the words taken down in writing were contrary to the concurrent intention of all parties must be strong, irrefragable evidence'; Lady Shelborne v. Lord Inchiquin (1784) 1 Br. Ch.Ca.341, and this expression of Lord Thurlow is mentioned by Lord Eldon in the Marquis of Townshend v. Stangroom (1801) 6 Ves. 334,without disapprobation. If, however, Lord Thurlow used the word 'irrefragable', in its ordinary meaning, to describe evidence which cannot be refuted or overthrown, his language would require some qualification ; but it is probable that he only meant that the mistake must be proved by something more than the highest degree of probability, and that it must be such as to leave no fair and reasonable doubt upon the mind that the deed does not embody the final intention of the parties. It is clear that a person who seeks to rectify a deed upon the ground of mistake must be required to establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in the minds of all parties down to the time of its execution, and also must be able to show exactly and precisely the form to which the deed ought to be brought. For there is a material difference between setting aside an instrument and rectifying it on the ground of mistake. In the latter case you can only act upon the mutual and concurrent intention of all parties for whom the Court is virtually making a new written agreement.
10. This, we think, fully bears out what we have said as to the necessity that the Court should find it clearly proved that there had been a mistake.
11. Therefore we send down the following issues :--
(1). Whether it is clearly proved that there has been a mutual mistake in framing the document Exhibit 9, which resulted in the omission therefrom of this piece of warkas land?
(2). When did the mistake first become known to the plaintiffs?
(3). What was the real intention of the parties in relation to the warkas land ?Parties to be at liberty to adduce further evidence Finding should be returned in two months.
12. We would only wish to add that though we have raised an issue as to when the matter first became known to the plaintiffs, it does not mean that we now decide that the Case falls within Article 96 or that if it does, and the plaintiffs did become aware more than three years prior to the application, we will necessarily disallow the amendment. It is a matter which we leave open for discussion when the case again comes before the Court.