1. This second appeal arises from a suit, which had been filed by the appellant plaintiff for recovery of a piece of land, which, it has been found now by both the lower Courts, was intended to be included in a sale deed executed by the plaintiff's predecessors-in-title, Baswant Sattu Gadakari alias Gadadavar, Sattava wife of Rama Gadakari alias Gadadavar and Kareppa Hasapur alias Karodi in favour of the defendant. It was, however, upon the findings of both the trial Court and the appellate Court, not included in the sale deed, because of a mutual mistake.
The plaintiff-appellant is a subsequent purchaser of the land from the defendant's vendors. He purchased the land on 23-5-1947, and on 14-8-1947, filed the suit from which the present appeal arises for recovery of possession of the land. The defendant filed his written statement on 10-6-1948, and his principal defence therein was that of a mutual mistake, which prevented the inclusion of the land in the sale deed, when the contract between the parties was that the land was also to be included in the sale deed along with the other properties which find mention therein.
It appears that in the written statement the defendant raised a contention with regard to the plaintiff not having mentioned in his plaint from whom he had purchased the land in suit, and what his vendor had got to do with it. When subsequently he had to file documents, he pointedout as to the complaint which he had made in his written statement, and said that he should be allowed time to file further documents, after the plaintiff had filed a counter written statement. The Court, however, did not ask the plaintiff to file any counter written statement, and merely gave time to the defendant to produce his papers.
Even so, however, the plaintiff appears to have filed a statement, in which he confined himself to explaining the matter upon which the defendant had said in his written statement what were not sufficient details in the complaint. The issues which were framed subsequently included an issue on the point of mutual mistake; but even in case there was a mutual mistake, inasmuch as the plaintiff is a transferee from the original vendors, and the defendant has founded his defence upon Section 31, Specific Relief Act, the plaintiff would be protected in case he was a transferee in good faith.
But there is no issue among the issues framed by the learned trial Judge as to whether the plaintiff was a transferee from the original vendor in good faith and was thus protected under the provisions of Section 31, Specific Relief Act. The plaintiff's sale deed, however, was challenged by the defendant as without consideration and champertous. There were issues upon the point, and thedefendant appears to have cross-examined the plaintiff upon his knowledge about what hadhappened at the time of the defendant's sale deedas well as the plaintiff's sale deed. The plaintiff said that at the time when he took his sale deed, his vendors told him that the defendant was in possession; but he did not make any inquiries from the defendant as to in what right he was in possession of the land in suit.
This cross-examination may, however, have been directed, as I have already mentioned, to the issues as to whether the plaintiff's sale deed was without consideration and whether it was champertous, and upon both the points the trial Court held in favour of the plaintiff. But inasmuch as the defendant has made out mutual mistake, and no question of plaintiff's good faith was ever raised, the plaintiff's suit has been dismissed with costs, without consideration of any questions as to whether the subsequent transferee was a transferee in good faith.
2. The first point which Mr. Jahagirdar, who appears on behalf of the plaintiff, makes is that in this case there ought to have been an issue on the question of the plaintiff's good faith, and in case there was no such issue, then, the dismissal of the plaintiff's suit cannot possibly be justified. It appears to us, however, that immediately the defendant raised his contention of mutual mistake, the plaintiff should have either filed a counter written statement saying that he was a transferee in good faith, or, in the alternative, at any rate, he should have raised an issue of good faith and led evidence upon it. We find in this case that the plaintiff has done neither. That is why there is no issue framed in the trial Court upon the question of the plaintiff's good faith, and that is why neither the trial Court nor the appellate Court has applied their minds to that question.
Now, the question of the plaintiff's good faith is obviously a question of fact, and it was necessary for the plaintiff to raise that question by his pleadings, and, at any rate, by asking the Court to frame an issue upon the point. Subsequently, he should have satisfied the Court upon the point. He failed to do so, and consequently he cannot now be allowed to say that there should have been an issue upon the question of his good faith, and if that question was not decided, the dismissal of the plaintiff's suit cannot be upheld.
3. Coming now to the main question, the argument which has been advanced on behalf of the plaintiff can be put in this manner. The plaintiff's suit was based upon his own title. The defendant has got in his favour a sale deed, and even though it has now been found that the contract of sale was with regard to not only the properties actually conveyed by the sale deed in favour of the defendant, but also with 'regard to the property in suit, the latter was omitted from the sale deed. Title to any piece of property can be conveyed in India, where the property is admittedly more than hundred rupees in value, by a registered instrument, and there being no registered instrument executed in regard to the property in dispute in favour of the defendant, the defendant has no title to the property.
It is true that whenever the defendant discovered the mistake, it was open to him to go to a Court under Section 31, Specific Relief Act, and ask for a rectification of the sale deed. If he obtained rectification of the sale deed, then he would get- a title; but until the sale deed was rectified, he would have in his favour only the right to file a suit conferred upon him under Section 31, and not the title itself.
It may be that once the document was rectified, the title may relate back to the date upon which the sale deed was executed. The suit would be notfor a fresh conveyance, but for a rectification of the conveyance, which had already been passed. The order for rectification would necessarily imply that there was a mistake in the document, & what the Court would give, therefore, as a result of the suit for rectification, would be a reformed document, viz. the original sale deed, with an additional item added to it. But even so, to the plaintiff's suit which was based upon title, the defendant had no defence. He could only defend it by showing a better title in him, and upon what he has done, he had got no title.
4. In support of this contention, Mr. Jahagirdar points to the position before Section 53A, Transfer of Property Act, was added to the statute. He says that in such a case a suit went up to the Privy Council in -- 'Ariff v. Jadunath Majumdar . There the plaintiff had sued the defendant in ejectment, and the defence was that the plaintiff had verbally agreed with the defendant to grant him a permanent lease and had let him into possession, when the defendant had, with the knowledge and approval of the plaintiff, erected structures on the land at a cost of about Rs. 10,000. Their Lordships pointed out that in these circumstances the title was in the plaintiff, but the defendant, who had no lease actually in his favour, but merely an agreement to lease, had no title to the land as a tenant. Then they observed with reference to the application of the English equitable doctrine of part performance (p. 82) :
'Whether an English equitable doctrine should in any case be applied so as to modify the effect of an Indian statute may well be doubted; but that an English equitable doctrine affecting the provisions of an English statute relating to the right to sue upon a contract, should be applied by analogy to such a statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statutesays can only be created by means of a registered instrument, appears to their Lordships, in the absence of some binding authority to that effect, to be impossible.'
Mr. Jahagirdar says that the result of this ruling is that where the plaintiff's suit is based upon title, the only reply which the defendant can give to it on the authority of this case would be a defence of his own title. That defence he is unable to give in this case, because even though he has got a right to sue the defendant's vendors for a rectification of the sale deed, which he has obtained, he failed to do so. The right which he has got in equity to obtain a rectification of the deed and thus a proper title to the land in suit cannot be substituted for a regular rectified deed as a defence to the suit.
5. Now, it is quite true that in the case of -- 'Pir Bux v. Mahomed Tahar , their Lordships of the Privy Council refused to apply the English equitable doctrine of part performance in India, except in so far as it was in part recognised by Section 53A of the Transfer of Property Act; but it has got to be remembered that they recognised the doctrine in so far as the statute had given effect to it. If the decision in-- 'Ariff v. Jadunath Majumdar (A)' went against the defendant, it was upon the footing that the doctrine could not be extended to India in the absence of any statutory authority.
Before Section 53A, Transfer of Property Act, was enacted, the equitable doctrine of part performance did not find any place in the statute book and could not be availed of, whether by the plaintiff or by the defendant; but the equitable doctrine with regard to a person, who has obtained a sale deed,but has failed to have incorporated in it a property, because of a mistake committed by the vendor and vendee both, does find statutory recognition in Section 31, Specific Relief Act. It is said, however, that just as the doctrine which is enacted in Section 53A can be given effect to, in so far as the statute recognises it, the doctrine which is embodied in Section 31, Specific Relief Act, must be recognised to the extent there laid down and no further.
That section recognises the doctrine only in so far as it allows a person, who has got in his favour a document, to sue for its rectification upon the ground, confining ourselves to the facts of the present case, of mutual mistake. It does not enable him to plead mutual mistake in defence, and if we were to allow him to plead that doctrine in defence, in the first instance, we would be going beyond Section 31, Specific Relief Act, and in the second instance, we will be allowing the provisions of the Stamp Act and the Registration Act to be defeated; and if we were to allow the defendant to plead a mutual mistake after his right to obtain a conveyance under Section 31, Specific Relief Act, is time-barred, we would also be defeating the provisions of the Limitation Act.
6. Now, in this case, I do not think that there is any question involved of limitation at all. It was open to the defendant to file a suit for the rectification of his instrument when the plaintiff filed his suit. We do not know when exactly the defendant came to know about the mistake, owing to which the land in suit was not included in his sale deed. He gave evidence, nevertheless, on 17-2-1950, and stated that it was about 2 1/2 years ago, & in any case before 14-8-1947. It is obvious therefore, that his right to obtain a rectification of the sale deed was not time barred when the plaintiff filed his suit. It was not time barred when he filed his written statement, and it was not time barred even at the date of the decree, unless he had come to know of the mistake prior to 17-2-1947. That we find not proved.
7. It is true, of course, that if the defendant is allowed to plead any defence of mutual mistake in regard to a registered instrument, which he has taken from someone else, it not being necessary for him to sue under Section 31, Specific Relief Act, the instrument would not be rectified, no stamp duty would be levied and perhaps the provisions of the Stamp Act would be defeated. It is said further that to some extent the defendant would have got over the provisions of the Transfer of Property Act and the Registration Act, under which no person can obtain a title to any property which is more than one hundred rupees in value, unless under a registered instrument.
Assuming that this is correct, what has got to be put against these considerations is that when the plaintiff files a suit in ejectment against the defendant, who has got in his favour a document of title, but by mutual mistake of himself and his vendors the property in suit is omitted, the Court should be reluctant to drive him to file a separate suit, when the only result of driving him would be that there would be further litigation between the parties, and the Court would be deciding there exactly the same issues in the suit which he has filed as would be decided in the plaintiff's suit, if he was allowed to raise the question in defence.
As I have already mentioned, we are not in this case concerned with a case in which the defendant's right to sue for rectification of his instrument was barred by the statute of limitation at the date of the written statement. It is true that there must be authority for allowing the defendant to plead in such circumstances the mutual mistake success-fully in defence. But there is considerable authority for the proposition that he should be allowed to do so.
8. The first of these cases is -- 'Dagdu v. Bhana', 28 Bom 420 (C). That was a suit for recovery of a sum for breach of a covenant against incumbrances contained in a conveyance of property executed by defendant No. 1 in favour of plaintiff No. 3. The defence was that the covenant was included in the sale deed by a mutual mistake. A question was then raised before this Court in that case whether the case having come from the mofussil, in which it was not permissible for a defendant to file a counter-claim, even if the defendant was successful in establishing a mutual mistake, relief could be given to him. Sir Lawrence Jenkins, who delivered the judgment of the Court in that case, observed (p. 426) :
'It is true that rectification is not claimed in this suit as a relief by the defendants, for the rules of procedure by which Mofussil Courts are governed do not permit of a counterclaim in this suit for that purpose, nor is there a cross suit for rectification; but as a Court guided by the principles of justice, equity and good conscience we can give effect as a plea to those facts, which in a suit brought for that purpose would entitle a plaintiff to rectification; of. -- 'Fife v. Clayton (1807) 13 Ves 546 (D) and -- 'Steele v. Haddock', (1855) 24 L J Ex 78 (E).'
Mr. Jahagirdar points out that even though in that case the defendant was allowed to plead a mutual mistake without having the contract in his favour rectified by a suit filed for that purpose the matter rested in contract. The Court had not there to consider the question as to the effect of allowing such a defence upon a statute which requires that the transfer of property if more than one hundred rupees in value can only be made by a registered instrument.
But the first thing to be noticed is that the case of -- 'Dagdu v. Bhana (C)' is an authority for the proposition that where it is open to a defendant to obtain rectification of a deed under Section 31, but it is not open to him to make a counterclaim, because the rules in the mofussil do not permit of a counterclaim, it is open to a Court, which is guided by the principles of justice, equity and good conscience, to give effect as a plea to those facts, which in a suit brought for that purpose would entitle a plaintiff to rectification. Out of the cases relied upon in that case the case of -- 'Steele v. Haddock (E)' appears to have been based upon an English statute, which provided:
'It shall be lawful for the defendant in any cause in which, if judgment were obtained, he would be entitled to relief against such judgment on equitable grounds, to plead the facts which entitle him to such relief by way of defence.'
The judgment proceeded upon the ground that if the plaintiff were to obtain judgment, the defendant might have filed a bill for an injunction absolute. But in the other case, namely, -- Fife v. Clayton (D)', the judgment proceeded upon the footing that there was a precedent which ought to be followed in order to save expense, especially when it was right on principle.
9. The case of -- 'Dagdu v. Bhana (C)' has subsequently been followed by this Court in the case of -- 'Janardan v. Venkatesh AIR 1939 Bom 151 (F), which was a case in which the plaintiff had sued to obtain recovery of possession of land which he claimed was allotted to his share in a partition deed which supported his case. Sir John Beaumont allowed the defence of mutual mistake to be taken, following -- 'Dagdu v. Bhana (C)', bywhich he considered himself bound, and the case of course, is also binding upon us. The other High Courts have also taken the same view in the cases of -- 'Mahendra Nath v. Jogendra Nath 2 Cal WN 200 (G) and -- 'Rangasami v. Souri', AIR 1916 Mad 519 (H).
It is true that the case of Mahendra Nath was a case in which by mistake property not intended to be sold was included in a sale deed, and that defence of the defendant was directed to show that no title, as a matter of fact, passed, because there was no intention that the title in regard to the property in suit should pass though property was included in the sale deed. When the defendant therefore, proved mutual mistake, the plaintiff had no title to the property. There was no question of the defendant's title being recognised without having obtained recognition in a suit filed for that purpose.
10. The case of -- 'Rangasami v. Souri (H)' has also been distinguished upon the ground that it was a case of misdescription, and it is said that in the case of misdescription, even though a party may obtain rectification of the instrument, there being an intention to pass title to the property and a document having been executed and registered, there is no question of no title passing without a registered instrument.
It is true that those cases can be distinguished from the facts of the present case upon those grounds; but the fact remains that the doctrine that it is not necessary to drive a defendant to a suit for rectification of a deed, when the relief which can be given to him can be given as a matter of equity, justice and good conscience, was recognised in -- 'Dagdu v. Bhana (C)', and in the ease of -- 'Janardan v. Venkatesh (F)', it was-followed in a case in which property was not included in a partition deed by a mutual mistake-in the share allotted to a wrong person.
We find that the principle which has been laid down in the cases of -- 'Dagdu v. Bhana (C)'; --'Mahendra Nath v. Jogendra Nath (G)' and --'Kangnsami v. Souri (H)' has been followed in a number of cases which have come up before the other High Courts, and we think that as we find the case law at present, the matter should be allowed to rest where it has been laid down by the cases of -- 'Dagdu v. Bhana (C)' and -- 'Janardan v. Venkatesh (F)'.
11. The case of -- 'Ariff v. Jadunath Majumdar (A)' can be distinguished upon the ground that in that case the defendant had no document of title at all. He had only a contract. In this case the defendant has with him a registered document of title intended by both the parties to secure to him title to the property in suit. But inasmuch as the execution of the intention was defective, the document of the defendant does not show that the land in suit was conveyed Lo the defendant. Even were the defendant in such a suit to file a separate suit, he would not get a different document. He would get a reformed document. In this case that means the original document to which would be added upon the order of the Court the land in suit.
There can be no question of the provisions of the Registration Act being allowed to be defeated in this case. The defendant may not have of course paid upon the document he has the same stamp as he would have had to pay if the document ho had included the property in suit, but it would be inequitable to drive him to a separate suit only on that account. We, therefore, hold that it was open to the defendant to show by the defence of mutual mistake that the intention wasto transfer the property, when the property had been, as a matter of fact, left out by the document through some oversight, and when he did that the plaintiff's suit had to be 'dismissed.
12. The next question which has been raised on behalf of the appellant is with reference to the admissibility of evidence in order to show that there was a mutual mistake committed. Proviso (1) to Section 92, Evidence Act says:
'Any fact may be proved which would invalidate any document, or which would entitle any per-son to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.'
Now, mistake in this section is not confined to a unilateral mistake. This is what is contended on behalf of the appellant. It is true that unilateral mistake may give rise to a different relief than a mutual one. But mistake in the proviso refers to both unilateral as well as a mutual mistake. In that case, the defendant is entitled, upon showing a mutual mistake, to a dismissal of the plaintiff's suit and would be entitled to prove the facts orally which would establish that mistake.
13. In the result, therefore, the appeal fails and will be dismissed. No order as to costs.
14. I do not think that there can be much doubt that under proviso (1) to Section 92, Evidence Act oral evidence can be led to show that due to a mistake common to all the parties, the written document does not correctly express the agreement, which the parties had really entered into. This is permitted in order to enable the Court to give effect to the agreement between the parties land not the mistaken expression of it. The remedy in such cases is to sue for rectification of the instrument under Section 31, Specific Belief Act. The Court then rectifies, not the contract, but the document embodying the contract, and puts the document into such a form as to carry out the agreement, which the parties had really entered into.
It has been held in several cases that even though no suit for rectification of the document has been instituted, the grounds, which would entitle a party to claim rectification, can be urged as a defence to a suit, because the Court will not 'compel performance in accordance with the terms of the error.' As was pointed out in AIR 1939 Bom 151 (F), there is nothing in proviso (1) to Section 92, Evidence Act to suggest that the facts which may be proved under that proviso can only be proved in support of a claim to which those facts give rise, and that such facts may be pleaded by way of defence also.
In 28 Bom 420 (C), the plaintiffs sued to recover a certain amount for breach of a covenant against encumbrances contained in a conveyance of property by defendant No. 1 to plaintiff No. 3. The defendants contended that the covenant as expressed in the deed was contrary to the intention of the parties. They were allowed to raise this contention even though no suit had been instituted for rectification of the deed. In his judgment at p. 426 Sir Lawrence Jenkins observed:
'It is true that rectification is not claimed in this suit as a relief by the defendants, for the rules of procedure by which Mofussil Courts are governed do not permit of a counterclaim in this suit for that purpose, nor is there a cross suit for rectification; but as a Court guided bythe principles of justice, equity and good conscience we can give effect as a plea to those facts, which in a suit brought for that purpose would entitle a plaintiff to rectification.'
The same view has been taken by the Calcutta High Court in 2 C WN 260 (G). In that case the plaintiffs brought a suit to recover possession of some land on the allegation that it was covered by the conveyance executed in their favour by the defendant. The defence was to the effect that what was intended to be sold and purchased was the revenue-paying estate of the defendant, but that the land in suit, though found included in the estate, was not expressly excepted, because both the parties were under the mistaken impression that it was not so included. It was held that it was open to the Court to allow the defendant to lead oral evidence to prove the mutual mistake, and that where there was a mutual mistake of fact, a Court administering equity would interfere to have the deed rectified, so that the real intention of both parties may be carried into effect, and will not drive the defendant to a separate suit to rectify the instrument. These cases have been followed in -- 'Janardan v. Venkatesh (F) AIR 1916 Mad 519 (H) and --'Rajaram v. Manik AIR 1952 Nag 90 (I).
15. Mr. Jahagirdar on behalf of the appellant has contended that even though the defendant may be able to prove that the suit land was intended to be sold to him and that it was not mentioned in the sale deed owing to a mutual mistake, under Section 54, Transfer of Property Act, any sale of immoveable property of the value of one hundred rupees or upwards can be made only by a registered instrument; that the sale deed in favour of the defendant has not yet been rectified; that as there Is no registered instrument in respect of the suit land, the defendant has acquired no title to it, and that consequently the plaintiff must succeed.
This question did not arise for consideration in 'Dagdu v. Bhand (C)' while it has not been considered in the other cases, to which I have referred above. Mr. Jahagirdar has relied on the decisions of the Privy Council In and . In the former case, the Privy Council held that before the enactment of Section 53A, Transfer of Property Act, the English doctrine of part performance was not available in India by way of defence to an action for ejectment. At page 82 their Lordships observed :
'Whether an English equitable doctrine should in any case be applied so as to modify the effect of an Indian statute may well be doubted; but that an English equitable doctrine affecting the provisions of an English statute relating to the right to sue upon a contract, should be applied by analogy to such a statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statute says can only be created by means of a registered instrument, appears to their Lordships, in the absence of some binding authority to that effect, to be impossible.'
16. Mr. Jahagirdar has strongly relied on these observations of their Lordships of the Privy Council. In 'Pir Bakhsh v. Mahomed Tahar (B)', it was held that in a suit for ejectment by the proprietor of the land, it is not a relevant defence that the plaintiff has agreed to sell the land to the defendant, even if it is alleged that the defendant is in possession under the contract; that under Section 54, Transfer of PropertyAct, a transfer by sale can only be made by a registered instrument, and the contract by itself does not create any interest in or charge on the property, and that if the contract is still enforceable, the defendant may found upon it to have the suit stayed, and by suing for specific performance obtain a title which will protect him from ejectment; but that if it is no longer enforceable, its part performance will not avail him to any effect. Both these cases were decided by the Privy Council before Section 53A was enacted.
These cases are, however, clearly distinguishable from the present case. In neither of these cases there was a registered document in favour of the defendant, as required by law. In the present case, a registered sale deed has been executed in favour of the defendant, and it has been found by the lower appellate Court that it was intended by both the parties that the sale deed should convey title to the suit land, which was omitted from it through a mutual mistake. Also when the Privy Council decided 'Ariff v. Jadunath Maiumdar (A)' and 'Pir Bakhsh v. Mahomed Tahar (B)', the English equitable doctrine of part performance did not, according to the view taken by the Privy Council, apply in India, and such an equity or part performance of the contract could not, therefore, be pleaded as a defence to an action for ejectment.
On the other hand, the equity which exists in favour of a party prejudicially affected by a mistake in the written document, which does not correctly record or express the agreement between the parties, has been recognised by the Legislature in Section 31 of the Specific Belief Act.
17. If the defendant had filed a suit for rectification of the sale deed and for an injunction restraining the plaintiff from interfering with his possession, then according to the finding of the lower appellate Court, the defendant's suit would have been decreed, in which case the plaintiff's suit would have been dismissed. Apart from putting the parties to more expense, no advantage would be gained by requiring the defendant to file a separate suit for this purpose. In the words of Sir Lawrence Jenkins in 'Dagdu Y. Bhana (C)' (at page 426) 'as a Court guided by the principles of Justice, equity and good conscience', I think we should, as held by our Court in 'Dagdu v. Bhana (C)' and 'Janardan v. Venkatesh (F)' allow the defendant to urge the same grounds, on which he could have claimed rectification of the sale deed, as a defence to the plaintiff's suit.
18. I also think that this is a case in which the principle of 'stare decisis' should be applied. That principle is that the law which has been laid down by the Courts and which has been followed by subjects within jurisdiction should not be lightly unsettled.
This principle has been recognised by ourCourt in several cases, see -- 'Dinanath v. Malvi and Co. AIR 1930 Bom 213 (J) and -- 'Venkanna Narsinha v. Laxmi Sannappa', : AIR1951Bom57 . In 'Janardan v. Venkatesh (F)' under a partition deed survey No. 145 was allotted to the plaintiff, while survey No. 143 was allotted to defendant No. 1. Both the survey Nos. were described by reference to acreage and assessment, and according to the acreage and assessment given in the partition deed, the suit land, for recovering which the plaintiff had filed the suit, was comprised in survey No. 145 allotted to the plaintiff. The defendant was allowed to lead evidence, the effect of which was to show that all parties to the partition deed in fact intendedthat the suit property should be included in survey No. 143, and that its inclusion in survey No. 145 was a mistake. The plaintiff's suit was accordingly dismissed. In this case, the defendant was, therefore, held to have obtained title to the property, even though, according to the document executed by the parties, it had been allotted to the plaintiff.
This case was decided about 15 years ago, and I presume the decision has since then been followed in several cases. I do not, therefore, think that we should disturb it now, after the lapse of such a long time. In view of this decision, the defendant can be allowed to resist the plaintiff's suit on the same grounds of mutual mistake on which he could have obtained a rectification of the sale deed executed in his favour.
19. I, therefore, agree with my learnedbrother that the appeal should be dismissed.
20. Appeal dismissed.