Jagat Narayan, J.
1. This is an appeal by the plaintiffs against a decree of the Senior Civil Judge, Jodhpur, dismissing a part of their claim in a suit brought under Section 31 of the Specific Relief Act for (1) a rectification of the boundaries of the mortgaged property in mortgage-deed dated 1-4-46, (2) a rectification of the boundaries of the mortgaged property given in the plaint in mortgage suit No. 47/48-49 brought in the Court of the District Judge, Jodhpur, on the basis of the mortgage-deed and (3) declaration that the preliminary and final decrees in suit No. 47/48-49 dated 30-11-49 and 13-3-50 respectively relate to the property described in para 1 of the plaint of the present suit and the plaintiffs have a right to get the house sold in execution of the decree.
The mortgage-deed was executed by one Dhume Khan, who died before the suit was brought. Sattar Mohamed, defendant No. 1, is the son, Smt. Chanda and Smt. Hanifa, defendants Nos. 2 and 3 are the widows and Smt. Halima is the daughter of Dhume Khan deceased. Defendants Nos. 1 and 3 contested the suit. The mortgage-deed was executed in favour of Smt. Bilam Kanwar wife of Kanmal who brought the present suit. She died during the pendency of it and her legal representatives, who were brought on record as plaintiffs, prosecuted the suit.
2. The facts which have given rise to the present case are these. Smt. Bilam Kanwar obtained a final decree for sale on the foot of the above mortgage-deed and put the mortgaged property to auction in execution. When the sale was being held by the Amin defendants Nos. 1 and 2 filed an objection on 13-3-51 before the District Judge which was the executing Court that the Amin was selling some property at the instance of the decree-holder in execution which was not mentioned in the decree.
The executing Court held an inquiry into the matter. The decree-holder admitted that the boundaries of the house which was being sold were different from the boundaries entered in the decree. Her contention however was that the property which was being auctioned was the one which the mortgagor intended to mortgage and that wrong boundaries were entered in the mortgage-deed by mutual mistake, which was repeated in the plaint and the decree.
She accordingly prayed that she may be allowed to prove what property was intended to be mortgaged. After hearing the arguments of both parties the District Judge allowed the decree-holder to adduce evidence on the point. Against that order defendants Nos. 1 and 2 filed D. B. Civil Miscellaneous First Appeal No. 1/1952. It was held by this Court that in the case of a mutual mistake of the parties such as the one alleged to have been committed in the mortgage-deed in the present case, the remedy was by way of suit and not by way of application in execution proceedings or an application under Section 151 or Section 152, C. P. C.
This case is reported in Mt. Chanda v. Mt. Bilam Kunwar, ILR 1953-3 Raj 914 (A). Smt. Bilam Kanwar then brought the present suit for the reliefs indicated above. It was contested by defendants Nos. 1 and 3. The learned Civil Judge held that by mutual mistake wrong boundaries were entered in the mortgage-deed dated 1-4-46, although it was the intention of the parties to mortgage the house described in para 1 of the plaint. He accordingly granted relief No. 1 to the plaintiff.
He was however of the opinion that reliefs Nos. 2 and 3 could not be granted in the present suit. He accordingly did not decree these reliefs in favour of the plaintiffs. Against this the plaintiffs have filed the present appeal claiming that they are entitled to reliefs Nos. 2 and 3 also. Smt. Hanifa filed a cross-objection challenging the decree on the ground that the plaintiffs are not entitled even to relief No. 1 as there was no mutual mistake.
3. Taking up the cross objection fust we find that there was a mutual mistake on account of which wrong boundaries were entered in the mortgage-deed dated 1-4-46. Azim Khan father of Dhume Khan owned two houses and a Nohra which were adjacent to one another. He died leaving two sons Dhume Khan and Karim Khan. Ex. 1 is a plan of the two houses and the Nohra which was prepared by Abdul Rehman P. W. 11 and was duly proved. From this plan it is clear that the Nohra is part of the house shown in yellow colour. It is connected with it.
On the other hand it is not connected With the other house. The Nohra and the house with which it is connected have been referred to by this witness as the house of Dhume Khan. Its main door faces towards the west, and opsns into a courtyard which is common to both the houses. This courtyard has a door opening towards north. The yellow coloured house and the Nohra are bounded on the south by the house of Ganchi Chhellia, on the north by the house of Chinpa Ibrahim, who purchased it from Chhottu, on the east by a thorough-fare and the house of Ganchi Chhelia and on the west by the other house referred to by the witness as the house of Karim Khan,
The entrance door of this other house opens towards the north into the common courtyard re-ferred to above. This house is bounded on the west by the Nohra of the other house, on the south by the house of Gafoor Khan, on the west by the house of Ghisu Khan and on the north by the house referred to by this witness as the house of Dhume Khan.
4. It has been satisfactorily proved by the oral and documentary evidence on record that Dhume Khan mortgaged the house and the Nohra shown in yellow colour in favour of Sajjan Chand on 24-3-35 by means of mortgage-deed Ex. 3. In this deed the boundaries of the yellow coloured house and the Nohra are correctly described. The recital in the deed as well as the oral evidence on record go to show that by then Dhume Khan had not obtained the patta for this house and Nohra. He had already applied for it and had requested the patta authority to deliver the patta to Saijan Chand in whose favour he was mortgaging the property.
This patta was subsequently delivered to Sajjan Chand. On 20-3-36 Dhume Khan mortgaged the same house to Mehtabchand by means of mortgage-deed Ex. 1, Mehtabchand P. W. 1 was examined as a witness and he gave the description of the yellow coloured property as the property which Dhume Khan pointed out to him before the mortgage-deed was executed as his property which he was going to mortgage. It is recited in this deed that the same property had earlier been mortgaged ia favour of Sajjan Chand.
Although the details of the property given in this deed tally with the details of the property given in Sajjan Chand's deed, the boundaries given in it do not tally. The case of the plaintiffs is that the boundaries of the other house referred to by Abdul Rehman P. W. 11 as Karim Khan's house were by mistake given in the patta which was issued to Dhume Khan by the patta authority and the scribe to whom this patta had been given copied out the boundaries from it.
It was from here that the mistake in the boundaries started. Dhume Khan mortgaged the some property in favour of one Gaj Raj on 17-4-43. The mortgage-deed in favour of Gajraj was filed in this suit but was inadvertently not proved. On the same day Dhume Khan executed a rent note (Ex. 5) in favour of Gajraj. This rent note is also a registered document. It has been properly proved. The boundaries were again incorrectly described as in Mehtabchand's deed. Money was left with Gajraj for payment to Sajjanchand and Mehtabchand.
When property was mortgaged in favour of Smt. Bilam Kanwar on 1-4-46 the patta of the house as well as the previous mortgage-deeds in favour of Sajjanchand, Mehtabchand and Gajraj were delivered to Smt. Bilam Kanwar as is recited in the mortgage-deed Ex. 8, which was executed in her favour. This mortgage-deed has also been properly proved. Although the description of the mortgaged propety given in the deed is correct the boundaries are incorrect. The boundaries given in the deed are those of the house described by Abdul Rehman, P. W. 11, as the house of Karim Khan. In these boundaries the yellow coloured house and Nohra, which were referred to by Abdul Rehman as the property of Dhume Khan, have been described as the property of Karim Khan.
5. As has been pointed out above the Nohra is a part of the yellow coloured house. It is connected with it. It is not connected with the other house. In all the mortgage-deeds this Nohra was also mortgaged along with the house and has been shown as part of the property which was being mortgaged. The mortgage-deeds Exs. 1, 3 and 8 in favour of Mehtabchand, Sajjanchand and Smt. Bilam Kanwar have been proved. The mortgage-deed executed in favour of Gajraj has not been proved. But the rent-note (Ex. 5) executed in his favour has been proved. The property for which this rent-note was executed included the Nohra.
Further this rent-note was executed for the same property which was mortgaged to Gajraj. It follows therefore that this Nohra was included in the mortgage-deed executed in favour of Gajraj. It has also come in evidence that there is upper storcy room (Malia) in the house referred to by Abdul Rehman as Karim Khan's house. Chhotta Khan D. W. 3 stated that there has been no change in the house since he had been seeing it. If Dhume Khan had mortgaged this house then in all probability he would have mentioned the Malia in the details of the property and would not have mentioned the Nohra.
6. On behalf of the contesting respondent it was argued that the mortgage-deed Ex. 3 had not been duly proved. The due attestation of the deed was proved by Gulabchand P. W. 2 and Ballabh-dass P. W. 6. Bullabhdas further proved that the deed was scribed by his father. These witnesses did not say that Dhume Khan executed the deed in their presence. But the mortgage-deed is a registered one and Dhume Khan admitted the execution of the deed before the Registering Officer.
In view of what was held in Gopaldas v. Sri Thakurji, AIR 1943 PC 83 (B), all that remained to be shown was that the person admitting execution before the Registering Officer was Dhume Khan and not an imposter. This is sufficiently proved by Dhume Khan's admission in the subsequent mortgage-deed Ex. I dated 20-3-36 executed in favour of Mehtabchand, which has been duly proved by the evidence of Mehtabchand. In that deed Dhume Khan specifically stated that he had mortgaged his house in favour of Sajjanchand.
The mortgage-deed Ex. 3 was handed over by Dhume Khan to Smt. Bilam Kanwar when he executed mortgage-deed Ex. 8 in her favour. Smt. Chanda D. W, 4 widow of Dhume Khan stated in cross-examination that she did not know whether or not Dhume Khan executed a mortgage-deed in favour of Sajjanchand. No witness of the defendant stated that Dhume Khan did not execute a mortgage-deed in favour of Sajjanchand. We therefore hold that Ex. 3 has been sufficiently proved for purposes of this ease in which it is only intended to use it for a collateral purpose.
7. It may be mentioned here that Smt. Chanda admitted that the yellow coloured house was occupied by Dhume Khan and his widows and children and the other house was occupied by Karim Khan.
8. Apart from the above deeds there is the evidence of Mehtabchand P. W. 1, which has already been referred to above and that of three other witnesses Mohanraj P. W. 12, Maghraj P. W. 13 and Kanmal P. W. 14. Mohanraj stated that he identified Dhume Khan before the Sub-Registrar when he executed the rent note in favour of Gajraj. He stated that Dhume Khan showed the property marked in yellow colour to him before the mortgage saying that he was in need of money and wanted to raise it by mortgaging this property. Magraj P. W. 13 is an advocate.
It was argued on behalf of the respondent that he should not be believed because he was a friend of Kanmal and his evidence was rather vague. Considering that he was deposing about something which took place about 10 years ago the evidence was bound to be rather vague. We do not consider it sufficient reason to discard the evidence on the ground that Kanmal was a friend of his. He was known to Dhume Khan also, who approached him for help as he wanted to borrow money after mortgaging the house. Maghraj went with Kanmal and Dhume Khan to see the property which he wanted to mortgage.
His evidence and that of Kanmal go to show that Dhume Khan intended to mortgage the yellow coloured property. Before the deed was actually executed, the parties agreed orally that the yellow coloured property will be mortgaged. Several witnesses stated that Dhume Khan told them that he owned the house having its door facing west and that Karim Khan owned the house having its door facing north. But they admitted that they had no personal knowledge as to whether any partition had taken place between the two brothers.
These witnesses included Kanmal. Jalanmal P. W. 9, who scribed mortgage-deed Ex. 8, stated that he read out the deed to Dhume Khan who admitted it to be correct. Dhume Khan must have assumed that the boundaries had been correctly noted and would not have paid attention to them, as the evidence referred to above clearly show that he did not intend to mortgage the house of which the boundaries were given in Ex. 8.
It was also argued on behalf of the contesting respondent that Dhume Khan might have knowingly got incorrect boundaries entered in the deed to defraud Smt. Bilam Kanwar. We find no evidence or circumstance on record to show that Dhume Khan had any fraudulent intention. On the other hand the evidence is to the effect that) there was a mutual mistake on account of such incorrect boundaries entered in several deeds.
9. Lastly it was argued that the plaintiffs had not shown that their suit was within limitation. The final decree was passed on 13-3-50. An execution application was then filed and the sale proclamation was made on 25-11-50. The property was ordered to be auctioned. On 13-3-51 the judgment-debtor presented an application to the effect that instead of selling the property which was mentioned in the decree the Amin was selling another house.
The case of the plaintiffs is that when this application was made then for the first time the mistake was discovered. Kanmal husband of Smt. Bilam Kanwar stated that he came to know for the first time about this mistake on 13-3-51 and informed his wife Smt. Bilam Kanwar on 20-4-51, Smt. Bilam Kanwar was a purdanashin lady. She died in 1955. The plaintiffs' evidence in this case was commenced from 4-8-54 and was closed on 13-7-56. Smt. Bilam Kanwar was not examined as a witness in her life time,
On behalf of the contesting respondent it was argued that unless Smt. Bilam Kanwar was produced the Court could not know with certainty that she did not have knowledge earlier than 13-3-51 about the mistake. We do not see any force in this argument. Smt. Bilam Kanwar was a purdana-shin lady. It was her husband Kanmal who acted for her. He stated that he learnt about the mistake for the first time on 13-3-51 and communicated the information to his wife on 20-4-51.
Nothing was elicited on cross-examination to throw any doubt on his statement. We are accordingly satisfied that the mistake was discovered by the plaintiffs on 13-3-51 and the suit which was instituted in September, 1953 was within the period of limitation prescribed under Article 96 of the Limitation Act.
10. We accordingly hold that the cross-objection is without force.
11. Now we come to the appeal preferred by the plaintiffs. The proper relief which they should have asked besides the rectification of the mortgage-deed should have been the rectification of the decree. Instead of asking for it they have asked for a declaration that the decree in Suit No. 47 of 48-49 relates to the house mentioned in the plaint and the plaintiffs are entitled to get it sold in execution of it. As they have pleaded all the necessary facts they would be entitled to the proper relief which they should have prayed for in the plaint, if they are held legally entitled to it.
12. The real question therefore which is to be considered is whether the mutual mistake of the parties to the mortgage transaction manifested in the mortgage-deed which has extended into judicial proceedings automatically as it were, without any mistake on the part of the Judge can be rectified, by a separate suit. There is a conflict of judicial authority on this point. In Bepin Krishna Ray v. Jogeshwar Ray, AIR 1921 Cal 730 (C), it was held that this can be done.
On the other hand it was held in Latchayya v. Seethamma, AIR 1932 Mad 275 (D), that such a mistake in the decree cannot be rectified by a separate suit, but that the correct remedy of the aggrieved party was to go to the Court which passed the decree and apply for the amendment of the plaint and after the plaint is amended to apply for a review of the decree, or in the alternative for the amendment of the decree under Section 152, C. P. C. The learned Senior Civil Judge followed the Madras case AIR 1932 Mad 275 (D). On behalf of the appellants it is urged that the Calcutta view AIR 1921 Cal 730 (C), is the more correct one. The argument in the Calcutta case proceeds thus :
'In principle, the answer should clearly be in the affirmative, for as Neville, J., observed in Thompson v. Hickman, 1907-1 Ch 550 (E), to grant relief by way of rectification where the error has crept into one document and refuse it where it is embodied in two, is inconsistent with equitable principles, for equity regards the substance rather than the form of transaction.
There is no substantial reason for instance, why we should not hold that where the same mutual mistake has been repeated in each one of a chain of conveyances, under such circumstances as to entitle any one of the purchasers to a reformation as against his immediate vendor, equity may work back through all, and entitle the last purchaser to a reformation against the original grantor. Similarly, it may be held as a general rule that if there is a mutual mistake in a mortgage in the description of property and the same mistake is reproduced in the decree, equity may go back to the original transaction and reform both the mortgage and the decree so as to make them conform to the intention of the parties concerned; and this view was actually adopted in Balaprasad v. Kanoo, 14 Ind Cas 407 (Nag) (F).'
13. Some cases relied upon by the learned Judges of the Madras High Court were such in which the mistake in the decree was on the part of the Judge. They are clearly distinguishable from the present case where there is no mistake in the decree on the part of the Judge. Apart from these cases the learned Judegs gave two reasons for not following Bepin Krishna Ray v. Joge-shwar Ray (C). The first reason was that there was no English precedent in support of the view.
As for that we are not aware of any English authority to the contrary either. The second reason was that to attack by a second suit the decree in a previous suit between the same parties was against the principle of res judicata. The learned Judges however recognised that there are certain classes of cases in which it is possible for one of the parties to a decree to attack it in a second suit. One instance of this class of cases is a compromise decree which can be attacked in a subsequent suit by one of the parties to it on the ground of mistake.
The learned Judges observed that this was not really in conflict with the principle of res judicata because such a compromise decree is not the result of adjudication between the parties. In such cases the decree is the instrument of contract made by the hand of the Court but by the will of the parties. In our opinion a decree in which a mistake has crept in on account of a mutual mistake of the parties in an earlier transaction which extends into judicial proceedings, automatically as it were, without mistake on the part of the Judge is on a similar footing with a compromise decree in which there is a mistake due to mutual mistake of the parties.
Wo are accordingly in respectful agreement with the decision in Bepin Krishna Bay v. Joge-shwar Ray, (C). We would like to point out that Section 31 of the Specific Relief Act provides that an instrument can only be rectified when the rights acquired by a third person in good faith and for value are not affected by such rectification. In the present case the rights of any third party are not affected.
14. The course suggested in the Madras case is that after obtaining a decree for rectification of the mortgage-deed the decree-holder in the prior suit should ask the Court which passed the decree in the first suit to allow necessary amendment to be made in the plaint and in the decree passed therein and it went without saying that the Courts would ordinarily allow its records to be rectified accordingly. In the case in question the lower appellate Court had already allowed rectification of the decree. The learned Judges did not set aside the decree of the lower appellate Court as the Court which passed the original decree and the Court in which the subsequent suit was instituted were one and the same.
15. We accordingly allow the appeal in a modified way and direct that the preliminary and final decrees shall be amended by substituting the boundaries given in para 1 of the plaint of this suit in place of the boundaries given in the decree.
16. For reasons which have been given above we dismiss the cross-objection.
17. In the circumstances of the case, we direct that parties shall bear their own costs of the appeal and the cross-objection.