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NoorudIn Esmailji Kurwa Vs. Mahomed Umar Subrati - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1896 of 1936
Judge
Reported inAIR1940Bom321; (1940)42BOMLR605
AppellantNoorudIn Esmailji Kurwa
RespondentMahomed Umar Subrati
Excerpt:
deed-rectification-mutual mistake of parties-decree based on unreciified deed-setting aside of decree.; in the case of rectification of an instrument, it is not necessary for the court to have evidence of a binding contract antecedent to the instrument which is sought to be rectified; it is enough if the plaintiff proves beyond reasonable doubt the concurrent intention of the parties at the moment of executing the instrument, and that the instrument fails to give effect to that concurrent in-tention. the court may act upon intrinsic evidence upon the face of the deed itself that there was a mutual mistake,; shipley u. d. c. v. bradford corporation [1936] 1 ch. 375 and fitzerald v. fitzerald [1902] 1 i. r. 477 followed.; where there has been a mutual mistake in a mortgage deed in the.....blackwell, j.1. the plaintiff, who is the transferee of a deed of mortgage da,ted october 24, 1918, alleges that by reason of mutual mistake of the parties thereto the mortgaged premises are therein wrongly described as being ward number 3912(3) and street number 99b, and that the parties meant and intended to comprise in the said mortgage the property bearing ward number 3912(2) and street number 99a. the plaintiff prays that the mortgage, and deeds of transfer dated november 12, 1920, and march 30, 1931, in which the mistake was repeated, may be rectified by substituting the correct ward and street numbers, and that if and so far as may be necessary a preliminary mortgage decree passed on april 3, 1935, in suit no. 1742 of 1932 may be set aside as between the plaintiff in that suit and.....
Judgment:

Blackwell, J.

1. The plaintiff, who is the transferee of a deed of mortgage da,ted October 24, 1918, alleges that by reason of mutual mistake of the parties thereto the mortgaged premises are therein wrongly described as being Ward number 3912(3) and Street number 99B, and that the parties meant and intended to comprise in the said mortgage the property bearing Ward number 3912(2) and Street number 99A. The plaintiff prays that the mortgage, and deeds of transfer dated November 12, 1920, and March 30, 1931, in which the mistake was repeated, may be rectified by substituting the correct Ward and Street numbers, and that if and so far as may be necessary a preliminary mortgage decree passed on April 3, 1935, in suit No. 1742 of 1932 may be set aside as between the plaintiff in that suit and defendants Nos. 1 to 3 and defendant No. 5 in that suit; the plaintiff further asks for the usual preliminary mortgage decree.

2. Defendants Nos. 1 to 3 are the heirs and legal representatives of Sardar Haji Badloo Subrati, the mortgagor; defendant No. 4 and defendants Nos. 5 and 6 are alleged to be puisne mortgagees; defendant No. 4A is the widow and executrix of the father of defendant No. 4, who is alleged to have been a puisne mortgagee along with defendant No. 4; defendants Nos. 7, 8 and 9 as the heirs of Hyderali Ismailji Kurwa, the mortgagee and transferor of the deed of transfer dated November 12, 1920, and one of the transferors of the deed of transfer dated March 30, 1931, and defendants Nos. 10, 11 and 12 as the remaining transferors of the latter deed, are joined as persons interested in the claim for rectification of the deeds of transfer.

3. The defences are no mutual mistake, res judicata, merger of the mortgage in the preliminary decree in the former suit, estoppel, and laches.

4. The history of this case begins with an agreement dated November 26, 1915, exhibit (A), between the Nevatia Flour Mills, Ltd., and Sardar Haji Badloo Subrati. The substance of that agreement was that Subrati was to erect a building or buildings on a piece of land described in the schedule to the agreement measuring 4000 square yards or thereabouts and the Nevatia Flour Mills, Ltd., wera to grant to him, a lease1 of the plot with the building or buildings erected thereon. It is common ground that the land was divided into six plots upon which six buildings were erected, and that six leases were in due course granted. Mr. B. K. Bana, an architect, was employed by Subrati to prepare various plans in connection with the land and the buildings. Mr. Bana gave evidence and all the plans were produced. The six plots are described on thq plans as plots A, B, C, D, E and F. Exhibit (L) is a plan which combines a block plan for plot A and a plan of the building proposed to be erected thereon. This plan shows two projections on the North side of the building, one at the North-East corner, and the other at the North-West corner, both projections abutting upon the open space which was intended to be left between plot A and plot B. Exhibit (M) is a plan which combines a block plan of plots B, C, D, E, and F and a plan of the buildings proposed to be erected thereon. This block plan shows the projections in connection with plot A. None of the other plots show any projection like that at the North-West corner of plot A. The buildings on plots B, C, D, E and F were erected in accordance with this plan, except that no second floor was constructed on plot B, because the erection of a second floor was abandoned. A copy of the block plan annexed to the plaint was by consent, for the sake of convenience, put in and marked exhibit (N), it being conceded that it was a copy of exhibit (M), except that the Municipal Ncs. 99 to 99E, which appear in exhibit (N)' are not in exhibit (M).

5. Exhibit (J) is the lease of plot A with the plan annexed thereto. That plan was prepared by Mr. Bana. It shows the projection in the North-West corner abutting upon, the open space between plots A and B. It is unnecessary to refer to this lease. The only leases to which it is necessary for the purposes of this case to refer in any detail are the leases of plots B and C.

6. Exhibit (K), dated October 17, 1916, is the counterpart lease of plot B with the plan annexed. The Southern boundary of plot B shown on this plan is part of plot A, and that part of the plot A shows the projection in the North-West corner. The area mentioned in the lease is 579.50 square yards or thereabouts out of the whole piece of land admeasuring 4000 square yards or thereabouts and the land demised is ' all that piece of land with the buildings thereon more particularly described in the schedule hereto and delineated on the plan thereof hereto annexed and thereon surrounded by a red bordered line '. The schedule is as follows:-

All that piece or parcel of Foras land or ground together with the messuage tenement or dwelling house standing thereon situate lying and being at Sankli Street without the Fort of Bombay in the Registration Sub-District of Bombay containing by admeasurement 579.50 square yards or thereabouts be the same more or less and registered in the books of the Collector of Land Revenue under Old Nos. 29, 95, 96 New Nos. 13531, 13602 Old Survey Nos. 283, 284, 294 and New Survey Nos. 1-2-3/3545 or some of them bounded as follows:-that is to say on or towards the East by the proposed Road, of forty feet, on or towards the West by the property of Rustomji Cursetji Gheyara, on or towards the North by the property of Sirdar Haji Badlooi and on or towards the South by the property belonging to Sirdar Haji Badloo which said premises are assessed by the Collector of Municipal Rates and Taxes under E Ward No. and Street No. and which said premises are more particularly delineated on the plan thereof hereto annexed and surrounded by red boundary line.

The Ward and Street numbers were left in blank because they had not been given at the date of this lease. Mr. Venkatrao Ramrao Baindurkar, a clerk in the Assessment Department, E Ward Section, of the Bombay Municipality, deposed to the Ward and Street numbers which were given to all these plots. He said that the Assessment Book showed that when a chawl was erected on the second plot (which is plot B) it was given a Ward number 3912/2 and a Street number 99A, and that the date 15-12-16 indicated that the Report for Assessment was made on that day. He said that the numbers 3912/2 and 99A were given between April 1, 1916, and March 31, 1917, but he was unable to give the exact date. He also said that the building on this plot consisted of a ground-floor and a first-floor. This counterpart lease with the plan annexed was produced from the custody of the plaintiff. Execution was proved by Mr. Samson Ezekiel, a partner in the firm of Messrs. Patell & Ezekiel, who acted as solicitors both for the lessor and the lessee in the preparation of the lease and the counterpart, the matter being attended to by Mr. Patell, who was a Director of the Nevatia Flour Mills, Ltd. Exhibit (K) shows that the lease was on January 29, 1917, registered with the Sub-Registrar of Bombay under ' Registered No. 241 at pages 309 to 322, Volume 2342 of Book No. 1.'

7. Exhibit (B) is a lease dated January 29, 1917, of plot C with the plan annexed. It was produced from the custody of defendant No. 13, the transferee of the mortgage exhibit (C). The area mentioned is 575 square yards or thereabouts out of the whole piece of land admeasuring 4000 square yards or thereabouts and the land demised is ' all that piece of land with the buildings thereon more particularly described in the schedule hereto and delineated on the plan thereon surrounded by a red bordered line'. The schedule is as follows:-

All that piece or parcel of Foras land or ground together with the messuage tenement or dwelling house standing thereon situate lying and being at Sankli Street without the Fort of Bombay in the Registration Sub-District of Bombay containing by admeasurement 575 square yards or thereabouts be the same more or less and registered in the books of the Collector of Land Revenue under Old Nos. 29. 95, 96 New Nos. 13531, 13602 Old Survey Nos. 283, 281, 294 and New Survey No. 1-2-3/3545 or some of them and bounded as follows:-that is to say on or towards the East by the proposed Road of forty feet on or towards the West by the property of Rus-tomji Cursetji Gheyara on or towards the North by the property of Sirdar Haji Badloo and on or towards the South also by the property belonging to Sirdar Haji Badloo which said premises are assessed by the Collector of Municipal Rates and Taxes under E Ward No. and Street No. and which said premises are more particularly delineated on the plan thereof hereto annexed and surrounded by a red boundary line.

The Ward and Street numbers were left in blank. Mr. Baindurkar said the Ward number 3912/3 and the Street number 99B were given to this plot during the years 1916/1917, but he was unable to give the exact date. He said that the building constructed on this plot, namely plot C, consisted of a ground-floor and two upper floors. He also said that all the buildings on all the six plots consisted of a ground-floor and two upper-floors with, the exception of plot B bearing Ward number 3912/2 and street number 99A, which consisted of a ground-floor and a first floor only. Exhibit (B) shows that the lease was on May 16, 1917, registered with the Sub-Registrar of Bombay under ' Registered No. 1450 at pages 215 to 232, Volume 2375 of Book No. 1.'

8. Exhibit (C) is a mortgage dated March 30, 1917, from Subrati to Sorabji Khursetji Ghandy. It recites the lease dated January 29, 1917, Exhibit (B), whereby ' the said Newatia Flour Mills, Ltd., demised unto the mortgagor all that vacant piece of land described in the Schedule thereunder and more particularly described in the schedule hereunder written,' and describes the land assigned by the mortgagor to the mortgagee as ' all and singular the piece or parcel of land or ground hereditaments and premises comprised in and demised by the said Indenture of Lease and also all erections and buildings already erected and built or to be erected and built hereafter on the demised premises'. The schedule refers to the dwelling house as ' containing a ground floor and two upper floors ', to the land as measuring 575 square yards or thereabouts, and as bounded ' towards the South also by two buildings belonging to Sardar Haji Badloo '. The Ward and Street numbers are left in blank in the schedule. Mr. Bana said that at the date of this mortgage there were only two buildings to the South of plot C, one building having been erected on plot B and the other on plot A. Exhibit (C) is a mortgage of plot C.

9. Exhibit (D), dated October 24, 1918, is the mortgage of which rectification is claimed. Subrati is the mortgagor and Haiderally Ismailji Kurwa the mortgagee. After reciting the agreement Exhibit (A) the deed continues:

And whereas the mortgagor having built on the said premises pursuant to the terms set forth on the hereinbefore recited Indenture of Agreement the said Nevatia Flour Mills, Ltd., granted a lease in respect of a portion of land more particularly correctly described in the Schedule hereunder (out of the whole piece of land agreed to be demised by the hereinbefore recited Indenture of Agreement of lease) by an Indenture of Lease dated the 17th day of October one thousand nine hundred and seventeen (the duplicate whereof is registered by the Sub-Registrar of Bombay under No. 241, at pages 309 to 322, Volume 2342 of Book No. 1 on the 29th day of January one thousand nine hundred and seventeen) for rents and subject to covenants and conditions therein contained including the covenant for renewal.

The date of the lease is given in this recital as 1917. This is an obvious mistake for 1916, as is clear from the statement that it had been registered on January 29, 1917. The fact that the registration number is given together with the pages and number of the Volume of Book No. I establishes beyond doubt that the lease referred to in this recital is the lease exhibit (K). It is unnecessary to refer to the two following recitals or to the first covenant, after which the deed continues:-

And this indenture also witnesseth that for consideration aforesaid the mortgagor doth hereby assign convey and transfer unto the mortgagee all and singular the piece or parcel of land of ground messuages hereditaments and all other the premises more particularly correctly described in the Schedule hereto.

The schedule is as follows:-

All that leasehold piece or parcel of Foras land or ground together with the messuage tenement or dwelling house standing thereon situate lying and being at Sankli Street without the Fort of Bombay in the Registration Sub-District of Bombay containing by admeasurement 579.50 square yards or thereabouts be the same more or less and registered in the books of the Collector of Land Revenue under Old Nos. 29, 95, 96. New Nos. 13531, 13602 Old Survey Nos. 283, 284, 294 and New Survey Nos. 1-2-3/3549, lb/3587, 3F and 4C/3550 and part of 3589 or some' of them and bounded as fallows:-that is to say on or towards the East by the proposed Road of forty feet on or towards the West by the property of Rustomji Cursetji Gheyara on or towards the North by the property of Sirdar Haji Badloo and on or towards the South by the property belonging to Sirdar Haji Badloo which said premises are assessed by the Collector of Municipal Rates and Taxes under E Ward No. 3912(3) and Street No. 99B.

In the schedules to the deeds of transfer exhibits (E) and (I) through which the plaintiff makes his title the Ward and Street numbers 3912/3 and 99B are repeated.

10. The claim for rectification has arisen from the fact that in the schedule to exhibit (D) the Ward number is given as 3912/3 and the Street No. 993. These were the Ward and Street numbers given to plot (C), whereas the Ward and Street numbers given to plot (B) were 3912/2 and 99A. The plaintiff's case is that this is an obvious mistake, which is apparent from the deed itself. In paragraph 6 of the plaint it is alleged that at the time when the mortgage was executed certain Municipal bills were handed over to the mortgagee by the mortgagor and that in those bills the property was also referred to as bearing Ward No. 3912/3 and Street No. 99B. The plaintiff was unable to prove this allegation, or to offer any explanation in regard thereto, as both the mortgagor and Mr. Patell, who acted as solicitor for both the mortgagor and the mortgagee, are dead, and the mortgagee is dead. Counsel for defendants Nos. 5 and 6, however, called for these bills, and they were; put in as exhibit No. (5). Counsel for defendants Nos. 5 and 6 at one stage argued that so far from the numbers 3912/3 and 99B being an obvious mistake, they were correctly set out in the schedule, and that the wrong lease had been mentioned in the recital in the deed. He suggested that the draftsman must have had before him the lease of plot C, exhibit (B). But after it had been, pointed out that the registered number mentioned in the lease (exhibit K) was mentioned in exhibit (D) and that the registered number mentioned in the lease exhibit (B) was quite different, counsel for defendants Nos. 5 and 6 gave up this argument, and was content to assume that the draftsman of exhibit (D) must have had before him the lease exhibit (K). He drew attention, however, to the fact that in the schedule to exhibit (D) the Survey numbers mentioned are in some respects different from those mentioned in exhibit (K), and said that this showed that the draftsman of exhibit (D) had before him material in addition to exhibit (K) and the municipal bills. The draftsman could not have got these survey numbers from the schedule to the lease, exhibit (B), because they are not mentioned there. As I am satisfied that he had before him the lease exhibit (K), I think that it is immaterial where he got the survey numbers from. In the schedule to exhibit (K) the area mentioned is 579-50 square yards, while in the schedule to exhibit (B) it is 575 square yards. In the schedule to exhibit (D) the area mentioned is 579-50 square yards. As solicitor for the mortgagee Mr. Patell must have obtained from the mortgagor the only document of title, exhibit (K). He mentioned in exhibit (D) the registration numbers of exhibit (K), and he must have got these from the document itself. Moreover, Ghandi's mortgage exhibit (C) is dated March 30, 1917, and the presumption is that he took possession of the lease exhibit (B), which was his only document of title. In any case if it had been the intention of the parties to exhibit (D) to create a mortgage of plot C, it would have been the duty of Mr. Patell to inform the mortgagee that he was getting a second mortgage of that plot, which, to his knowledge, had already been mortgaged to Ghandi. The intrinsic evidence in exhibit (D) itself in my opinion leads to an irresistible inference that the intention of the mortgagor and the mortgagee was to create a mortgage of plot B, the property covered by the lease exhibit (K), and that the wrong Ward and Street numbers were mentioned in the schedule by mutual mistake.

11. I come now to the documents which it is necessary to consider in reference to the other issues in the case. Exhibit (F) is the root of the title of defendants Nos. 5 and 6 and 4 and 4A. It is a second mortgage dated September 6, 1928, from defendants Nos. 1, 2 and 3 to Framroze Hormusji Sessionwalla and Hormusji Framroze Sessionwalla of plots B, C and D, and is made subject to the existing mortgages on those plots. The first schedule relates to plot D. The second schedule relates to plot B. It gives the area as 579-50 square yards, and the Ward and Street numbers as 3912/3 and 99A, although the schedule to exhibit (D) mentions 99B. The third schedule relates to plot C. It gives the area as 575 square yards, and the Ward and Street numbers as 3912/3 (repeating the Ward number mentioned in the second schedule) and 99B, these being the correct Ward and Street numbers of plot C. The second and third schedules constitute an admission that the properties covered by the mortgage of plots B and C are different, though the same Ward number is given for each.

12. Exhibit (G) is a further mortgage dated July 12, 1929, between the same parties as the parties to exhibit (F) of all the six plots, subject to, among other mortgages, that of October 24, 1918, exhibit (D). The second and third schedules are in the same form as those in exhibit (F), and constitute a similar admission.

13. Exhibit (H) is a mortgage dated November 26, 1929, from defendant No. 1 to defendants Nos. 5 and 6, Hormusji Framji Sessionwalla, defendant No. 4, and his father Framroze Hormusji Sessionwalla, being parties thereto and thereby giving up their priority 'n respect of plot B, among others. It is made subject to the mortgage of October 24, 1918, to which the first schedule relates. In that schedule the Ward and Street numbers of plot B are correctly given as 3912/2 and 99 A. This would appear to have been a deliberate correction. The recitals show that the draftsman had before him a certified copy of exhibit (D), as the registered number is referred to and ' the schedule thereto ' followed by the words ' and also in the first schedule hereunder more particularly written '. The recitals also show that the draftsman had before him exhibits (F) and (G). Having all these documents before him he appears deliberately to have corrected the Ward and Street numbers of plot B in the first schedule. In view of this correction it is strange that defendants Nos. 5 and 6 should now contend, as they do, that there was no mistake in the Ward and Street numbers in exhibit (D).

14. On November 10, 1932, the present plaintiff filed suit No. 1742 of 1932. Defendants Nos. 1 to 3 were the same as in the present suit. They did not appear. Defendant No. 4, Framroze Hormusji Sessionwalla, was the father of defendant No. 5. He died, and his name was struck off. Defendant No. 5, Hormusji Framji Sessionwalla, is the same as defendant No. 4 in the present suit. He did not appear. Defendant No. 6 is the same as defendant No. 13 in the present suit. He alone appeared. Counsel for defendants Nos. 5 and 6 contended that this was a mortgage suit in respect of plot C, and not in respect of plot B. A careful consideration of the plaint shows that this is not the case. Paragraph 1 refers to the deed of mortgage of October 24, 1918, exhibit (D). It mentions the area as 579-50 square yards, which is correct, and the Ward and Street numbers as 3912/3 and 99B (which the plaintiff in the present suit says was a mutual mistake by the parties to exhibit (D)) because those were the numbers given in the deed. Paragraph 5 refers to defendants Nos. 4 and 5 as puisne mortgagees; they were mortgagees of plots B, C and D by one mortgage, exhibit (F), and they had a further charge, on all the six plots, exhibit (G). Paragraph 7 refers to Ghandhi's mortgage of March 30, 1917, exhibit (C), and says that defendant No. 6 claims to be a prior mortgagee of the property in suit as the transferee of exhibit (C), but in paragraph 8 the plaintiff alleges that the property mortgaged to defendant No. 6 is different from the property of which the plaintiff is the mortgagee. That was the plaintiff's case in that suit; it is also his case in the present suit. Paragraph 10 refers to the lease of plot B, exhibit (K), and to the registered numbers of that lease. This again shows that this suit was to enforce a mortgage of plot B and not of plot C. It is further alleged in that paragraph that the land was built upon at the date of the lease, but that the assessment numbers had not then been given. Paragraph 11 alleges that ' the said building was thereafter assessed under municipal ' E ' Ward No. 3912/3 and Street No. 99B '. This allegation was a mistake, as has been proved by the evidence in the present suit, the numbers 3912/2 and 99A having been given to plot B; but it is plain from paragraphs 10 and 11 read as a whole that plaintiff's suit was in respect of the mortgage of plot B, and not of plot C. Paragraph 11 further alleges that Subrati mortgaged the building together with the leasehold land on which it stood to the plaintiff's prede-cessor-in-title by exhibit (D), and delivered to him the duplicate lease dated October 17, 1916, exhibit K. This last allegation is not denied in the written statement of defendant No. 6. Paragraph 12 refers to another lease of land admeasuring 575 square yards dated January 29, 1917, exhibit (B), and to the mortgage of March 30, 1917, exhibit (C), to the predecessor-in-title of defendant No. 6. No Ward and Street numbers were mentioned in exhibit (C), but they were mentioned as 3912/3 and 99B in the deed of transfer to defendant No. 6 as appears from paragraph 13. In paragraph 14 the plaintiff says that he does not admit that the property of which defendant No. 6 is the transferee is the same as the property covered by the mortgage of which the plaintiff is the transferee. In the face of all these averments it is clear that this suit was in respect of plot B, and not of plot C. Paragraph 15 carries the matter no further; it is an alternative claim for priority in case the Court should hold that the plaintiff and defendant No. 6 had a mortgage of the same property, which the plaintiff was disputing. Prayer (b) of the plaint asks for a declaration that the properties were different, prayer (c) deals with the alternative claim, and the usual preliminary mortgage-decree is asked for in respect of the moneys due. The written statement of defendant No. 6 read as a whole supports the contention of the plaintiff in the present suit that there was a mutual mistake in exhibit (D) as regards the numbers, though in paragraph 6 this defendant says that while he does not admit that the same numbers were given as were given to the property covered by his mortgage, yet if they were given there was some mistake on the part of the Municipality. In the course of the hearing the plaintiff was driven to admit that as his suit asked for a mortgage decree in respect of property assessed under Ward and Street numbers 3912/3 and 99B he could not claim priority over defendant No. 6 whose mortgage was earlier in date and was in respect of property assessed under those numbers. The suit was accordingly dismissed as against defendant No. 6, and it was ordered that the costs of defendant No. 6 should be tacked on to his mortgage. The suit was then proceeded with as against the other defendants and the usual preliminary mortgage decree was passed against them, on April 3, 1935. The decree was in respect of the property mentioned in the schedule and specifies the Ward and Street numbers as 3912/3 and 99B.

15. On February 14, 1936, the plaintiff in suit No. 1742 of 1932 took out a notice of motion against defendants Nos. 1 to 3 and 5 and 6 asking that he might be given leave to substitute the numbers ' E Ward No. 3912/2 and Street No. 99A' for the numbers ' E Ward No. 3912/3 and Street No. 99B ' in the schedule of the mortgaged property to be annexed to the preliminary decree, and that the plaint might be amended accordingly; alternatively the plaintiff asked that he might be given leave to withdraw the suit with liberty to bring a fresh suit on the same cause of action and that the preliminary mortgage decree might be vacated. In the plaintiff's affidavit in support all the necessary evidence as to the mutual mistake is to be found, though the words mutual mistake are not used, and the plaintiff says that he came to know of the facts deposed to after the passing of the preliminary mortgage decree. He also explains the delay in making the application. In the affidavits of defendants Nos. 5 and 6 in opposition there is no denial that the plaintiff came to know the facts deposed to by him after the passing of the preliminary mortgage decree. The notice of motion, was dismissed on June 16, 1936. If the decree was to affect property assessed under different numbers, other parties might have been affected; defendants Nos. 5 and 6 to the present suit would have been affected, and they were not parties to the elarlier suit, The Court could certainly not have amended the schedule to the decree unless the mortgage-deed upon which the decree was passed was first rectified. All the documents in suit No. 1742 of 1932 abovementioned were put in by consent as exhibit (O).

16. On July 10, 1936, the present defendants filed suit No. 1176 of 1936 claiming that in the events which had happened they were the first mortgagees of the property plot B. They filed this suit through Messrs. Jhavery & Co., who had acted as solicitors for defendants Nos. 5 and 6 on the notice of motion in suit No. 1742 of 1932, and who knew that the plaintiff on that notice of motion was contending that the real Ward and Street numbers of the property mortgaged to him were 3912/2 and 99A. Not only that, they filed this suit claiming to be first mortgagees although their mortgage exhibit (H) was expressly made subject to the plaintiff's mortgage exhibit (D). The present plaintiff was not made a party defendant. The suit was obviously for the purpose of snatching a decree. A preliminary mortgage decree was passed in that suit on September 2, 1936; it has not been made absolute.

17. The plaintiff filed the present suit on October 23, 1936. In paragraph 9 of the plaint he alleges that by reason of the misdescription of the Ward and Street numbers in his mortgage exhibit (D) he was misled into believing that it was the property covered by the mortgage exhibit (C), and that he filed suit 1742 of 1932 accordingly. Counsel for defendants Nos. 5 and 6 relied upon this in support of his argument that suit 1742 of 1932 was a suit in respect of the mortgage exhibit (C). I have already given my reasons for holding that suit 1742 of 1932 was a suit to enforce the mortgage exhibit (D). The draftsman of paragraph 9 doubtless framed it as he did in reference to what the plaintiff had since discovered. The allegation is inartistic, and the draftsman might more accurately have alleged that the plaintiff was misled into believing that the mortgaged property covered by exhibit (D) correctly bore the Ward and Street numbers set out in the Schedule. That is what an analysis of the plaint in the earlier suit clearly shows. Defendants Nos. 1, 2 and 3 did not appear, and must be taken to have admitted the mutual mistake alleged. Defendants Nos. 4 and 7 to 12 did not appear. Defendant No. 4A rests her case on a denial in spite of her own documents ending with exhibit (H). In paragraph 13 of her written statement she denies that defendant No. 4 and his father were puisne mortgagees in spite of those documents. She rests her case solely upon the fact that the plaintiff had obtained a decree in the earlier suit in respect of the wrong Ward and Street numbers. Defendants Nos. 5 and 6 similarly rest their case on a denial. Their counsel at one stage argued that there may have been a mistake in the schedule to exhibit (H), but this was not alleged in their written statement, and they have not gone into the witness-box to support it. In their written statement they base their claim to be the first mortgagees, not by reason of any mistake in exhibit (H), which was made subject to exhibit (D), but by reason of the decree in the earlier suit. In my opinion these defences fail.

18. Counsel for defendants Nos. 5 and 6 relied upon a deed of rectification exhibit No. (4) dated November 7, 1932, between the transferors and transferee of the deed of mortgage exhibit (I) by which a cadastral survey number in the latter was corrected. He argued that at the time when this deed of rectification was prepared the plaintiff must have looked into all the numbers, including the Ward and Street numbers, and yet he brought suit 1742 of 1932 in respect of Ward and Street numbers which he now says were wrong. But the plaintiff brought that suit three days after this deed of rectification, and he had clearly not discovered the mistake at that time. In his affidavit on the notice of motion he swore that he had discovered the mistake only after the preliminary decree, and this was not denied by the defendants who appeared. There is nothing in this point.

19. Counsel for defendants Nos. 5 and 6 also relied upon the fact, which was proved, that the assessment in respect of plot C was higher than that in respect of plot B, and argued that the mortgagee of exhibit (D) having been given the municipal bills, exhibit No. (5), must have thought that he was getting the more valuable plot. But the fact that these municipal bills were handed over, no doubt as evidence that the assessment had been paid, cannot affect or outweigh the intrinsic evidence of mutual mistake as regards the Ward and Street numbers in exhibit (D) to which I have drawn attention.

20. Several cases dealing with rectification were cited, of which Fowler v. Fowler (1859) 4 De G. & J. 250 Parsons v. Bignold (1843) 13 Sim 518 Mortimer v. Shortall (1842) 2 Dr. & War. 363 and In re Bird's Trusts (1876) 3 Ch. D. 214 are typical. The question is discussed at length in Shipley U. D. C. v. Bradford Corporation [1936] 1 Ch. 375 It is not necessary for the Court to have evidence of a binding contract antecedent to the instrument which is sought to be rectified; it is enough if the plaintiff proves beyond reasonable doubt the concurrent intention of the parties at the moment of executing the instrument, and that the instrument fails to give effect to that concurrent intention. It was held by the Court of Appeal in Ireland in Fitzgerald v. Fitzgerald [1902] 1 I. R. 477 that the Court may act upon intrinsic evidence upon the face of the deed itself that there was a mutual mistake. I respectfully agree. I am satisfied from exhibit (D) itself that the parties intended to mortgage plot B, and that the wrong Ward and Street numbers were inserted in the Schedule by mutual mistake.

21. It was contended that the plaintiff was not entitled to have the preliminary mortgage decree in suit 1742 of 1932 set aside in this suit. In Bepin Krishna v. Jogeshwm (1921) 34 C. L.J. 256 it was held that where there has been a mutual mistake in a mortgage deed in the description of the property and the same mistake has been reproduced in the decree, but no sale has resulted in execution thereof, the Court may reform both the mortgage deed and the decree so as to make them conform to the intention of the parties. In Latchayya v. Seethamma (1931) 62 M. L.J. 350 the Court dissented from the view expressed in the Calcutta case that the decree could be rectified by a subsequent suit, but held that the mortgage deed could be rectified in spitd of a decree having been passed on the basis of the mortgage. In the present case the plaintiff does not ask for rectification of the earlier decree, but that it should be set aside in part. The earlier decree really consists of two decrees in one, seeing that it dismissed the suit against defendant No. 6 (the present defendant No. 13), and decreed the suit against the other defendants. Kusodhaj Bhukta v. Braja Mohan Bhukta I.L.R. (1915) Cal. 217 was relied upon in support of the argument that the decree in the earlier suit cannot be set aside by a suit. But that was] a suit between the same parties to the earlier suit, and merely decided that a suit does not lie to set aside a decree in a previous suit on the ground that the Judge in passing the decree made a mistake; in my opinion that case does not touch the present case. Several of the defendants to the present suit were not parties to the earlier suit. The plaintiff does not seek to set the decree aside as against the present defendant No. 13, who was made a formal party, no relief being claimed against him. As no relief was claimed against him, I can see no justification whatever for his appearance to defend the suit. In my opinion the plaintiff is entitled upon rectification of the mortgage deed to have the decree set aside as against the other defendants to the earlier suit, seeing that when the deed is rectified the basis upon which the decree was passed as against them is gone.

22. Laches and gross negligence were also relied upon as bars to the relief claimed. On the evidence I am not prepared to hold that there was gross negligence, and mere laches is not a bar if the rights of third parties have not intervened, as they have not done in this case. The date of the notice of the mistake is the date from which time runs; the plaintiff has sworn that he discovered the mistake only after the passing of the preliminary decree, and this has not been denied.

23. It was contended that by reason of the proceedings in suit 1742 of 1932 and/or the proceedings on the notice of motion in that suit the plaintiff's claim is barred by res judicata or by the principle of res judicata. Counsel for defendants Nos. 5 and 6 ultimately gave up that contention as they were not parties to that suit and did not derive title through a party to that suit within the meaning of Section 11 of the Civil Procedure Code. Counsel for defendant No. 4A persisted in the contention, arguing that defendant No. 4A derived title through defendant No. 5 in the earlier suit. He said that when defendant No. 4 to the earlier suit died, and his name was struck off, defendant No. 5 to the earlier suit became a trustee for him, qua the mortgage exhibit (F), and continued to represent his estate, and that defendant No. 4A claimed through defendant No. 4 in the earlier suit who, he said, was a beneficiary. But defendant No. 4A was an executrix along with other executors of the will of her deceased husband. She alone proved the will, and the estate then vested in her as from the date of the death of the deceased. Defendant No. 5 in the earlier suit was sued in his individual capacity; on the death of his father there was no amendment whereby he was sued as a trustee for his father as well as in his individual capacity, and the estate of the father was not represented by defendant No. 5 in the earlier suit. Defendant No. 4A is joined in the present suit as representing the estate of her deceased father, and the matter is not res judicata as far as she is concerned. It was necessary to join her in that capacity, as all contracts in India are joint and several even though defendant No. 5 in the earlier suit was entitled by exhibit (F) to give a discharge to the mortgagor upon the death of his father.

24. It was also argued that the plaintiff was estopped from contending that he is the mortgagee of the property bearing E Ward number 3912/2 and Street number 99A by reason of suit 1742 of 1932 and the notice of motion in that suit. Having regard to Section 31 of the Specific Relief Act counsel for defendants Nos. 5 and 6 candidly informed me, that he did not feel confident about this contention, though he did not wish expressly to abandon it. Counsel for defendant No. 4A persisted in the contention. In my opinion there is no substance in it whatever.

25. It was also contended that the mortgage, exhibit (D), was merged in the decree in the earlier suit and that by reason of that decree the plaintiff was precluded from seeking rectification of the mortgage. But under Order XXXIV, Rule 5, of the Civil Procedure Code, a mortgagor can redeem until confirmation of the sale; there is no merger of the security in the decree: see Ramji v. Pandharinath Ravji I.L.R. (1918) 43 Bom. 334 There is nothing in this point.

[After dealing with the issues raised in the case and recording findings thereon the judgment concluded.]

26. I pass a decree in favour of the plaintiff in terms of prayers (a) and (b) of the plaint. As regards prayer (c), having ordered rectification of the mortgage exhibit (D), I set aside the preliminary mortgage decree in suit No. 1742 of 1932 as between the plaintiff and defendants Nos. 1 to 3 in, that suit, who are defendants Nos. 1 to 3 in this suit, and defendant No. 5 in that suit, who is defendant No. 4 in the present suit. I make a declaration in terms of prayer (d) as between the plaintiff and defendants Nos. 1 to 6, and I pass the usual preliminary mortgage decree as between the plaintiff and defendants Nos. 1 to 6 upon the mortgage deed so rectified. I give six months time to redeem.

27. As regards costs Mr. Daphtary for defendants Nos. 5 and 6 submitted that they should not be ordered to pay any costs at all. He contended that his clients' rights were sought to be affected by this suit, that after the preliminary mortgage decree in the earlier suit he became the first mortgagee of plot B, and that he was entitled to offer resistance if his rights, subsequent to the passing of that earlier decree, were sought to be affected. I have already given my reasons for holding that the attitude of defendants Nos. 5 and 6 in resisting rectification of the mortgage exhibit (D) was utterly unjustifiable and: particularly having regard to the fact that their own mortgage deed, exhibit (H), was made expressly subject to exhibit (D). I think it is plain that they knew from the first that they were taking up a wrong attitude, and in my opinion it was an attitude which was utterly dishonest.

28. Mr. Daphtary referred me to Bloomer v. Spittle (1872) L.R. 13 Eq. 427. That was a suit brought for the purpose of rectifying a conveyance made on a sale. The Court held that there was a mistake in the conveyance and that it was due to a mutual mistake of the vendor and the purchaser. The purchaser, Spittle, resisted the rectification contending that it was not a mutual mistake, but the Court held against him. Lord Family, the Master of the Rolls, in dealing with the question of the costs, said (p. 431):-

As a general rule, the costs of repairing a man's own blunder fall upon himself, and he ought to pay for it; but I am bound to say I do not think this was an honest defence of Spittle's; and that being so, I shall give no costs of the proceedings on either side. If it had been simply a mistake, the plaintiff would have had to pay all the costs of rectifying it.

29. In that case the learned Master of the Rolls made that order in the exercise of his discretion notwithstanding his view that the defence raised by Spittle was a dishonest defence. It is no doubt true as the learned Master of the Rolls said that as a rule a man must pay for his own blunder. In the case before me, however, it must be remembered that the solicitor, Mr. Patell, acted both for the mortgagor and the mortgagee, and that the mistake which occurred was a mutual mistake. The suit Became necessary because of that mutual mistake. Mr. Daphtary at one stage argued that even as between the plaintiff and defendants Nos. 1 to 3 there ought to be no costs, and that the plaintiff who moved the Court to cure the mistake should bear them himself. It is, however, a matter of discretion, and in my opinion on the facts of the present case the proper order, as between the plaintiff and defendants Nos 1 to 3, is that the costs, which I will presently define, as between the plaintiff and defendants Nos. 1 to 3 should be added on to the mortgage security. Later in his argument Mr. Daphtary very fairly said that he did not dispute that the general costs of the action should be added to the mortgage debt. I do not think that I ought to make any order drawing a distinction between the general costs of the action and any other costs of this action. To the extent to which defendants Nos. 4A, and 5 and 6 have by their conduct, which I have held to be unjustified, increased the costs, they ought to pay them, and no further. I think that the proper order to make as regards costs in this suit is that as between the plaintiff and defendants Nos. 1 to 3 the costs of the suit should be taxed as if it had been an uncontested long cause, and that the plaintiff should be at liberty to add those costs on to his mortgage security, and that neither defendant No. 4A, nor defendants Nos. 5 and 6 should be saddled with any of those costs. To the extent however to which the costs of the suit have been increased by the issues raised by defendants Nos. 4A and 5 and 6, defendants Nos. 4A and 5 and 6 ought to pay those costs to the plaintiff personally from the date of the filing of their respective written statements. That is the order which I make. This order will of course include the costs of the hearing of this suit incurred because it proceeded on the issues raised as a contested long cause and did not end as an uncontested long cause, as it would have done if those issues had not been raised.

30. Mr. Somjee informed me that he would not ask for costs against either defendant No. 4, or defendants Nos. 7 to 12, or defendant No. 13. Accordingly, there will be no order for costs as between the plaintiff and those defendants.


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