1. This appeal raises a short point, viz., whether the deed of mortgage, dated 4th January, 1917, in favour of one Chinnayya Chetti Garu provides for interest on the capital sum of Rs. 6,500 at the rate of Rs. 2 per month on the Rs. 6,500 or at the rate of Rs. 2 per centum per month. The said mortgage was attached by the decree-holder in E.P. No. 2 of 1925 and the plaintiff in this present action is the receiver therein.
2. The plaint makes no claim for rectification of this instrument, and issue 2 expressly raises the question whether the plaintiff is entitled to recover under this deed interest at the rate of Rs. 2 per cent. per month without rectification. Issue 1 appears to raise the question whether as a matter of construction this deed reserves to the mortgagee interest at the rate of Rs. 2 per cent. per month or at the rate of Rs. 2 per month. Why the plaintiff declined to ask for rectification can only be a matter of speculation. In fact he did not and proceeded to claim on the footing of an unrectified deed the same sum as would have been due had he claimed rectification and had succeeded in that claim.
3. It is not suggested that sections 95, 96, 97 or 98 of the Evidence Act apply. It is not therefore a case of construing a document contrary to its apparent meaning. If evidence can be given to vary this document it can only be because of the first proviso to Section 92 of the Evidence Act. This proviso permits the proof of a mistake which would entitle the party to a decree or order relating to the document or which would invalidate the document.
4. Does Section 92, proviso 1 apply? We conceive that it only applies if there be such mistake as would entitle the party alleging the mistake to a decree or order rectifying or cancelling the document. Proviso 1 thus, on this point, permits mistakes to be proved, but when proved it has the same effect as in English law. What is that effect?
5. It is clear that unilateral mistake (not amounting to fraud, legal or equitable) is not a ground for rectification, and would, therefore, if proved, not entitle the party alleging it to a decree or order rectifying or cancelling the document. See United States v. Motor Trucks, Ltd. (1924) A.C. 196, and May v. Platt (1900) 1 Ch. 616.
6. The common law is impatient even of mutual mistake save when the contract has not attached and the mistake shows absence of consensus.
7. Equity, however, relieves against mutual mistake upon equitable principles. But this is an equitable remedy or defence and is available to a plaintiff where the equitable remedy of rectification or cancellation is sought and to a defendant against whom an equitable remedy (e.g., specific performance) is sought. This is a distinction which exists in India as in England. It is borne of the fact that equitable remedies raise equitable defences and have equitable characteristics. Thus it is a defence to a suit claiming an equitable remedy that the plaintiff has been guilty of laches. This defence is unknown to the common law. If, therefore, the remedy sought is equitable, it is open to equitable defences; if not, it is not so open.
8. It is apparent, therefore, that it is not being merely technical to enquire: Is the remedy sought in fact rectification or not? Let it be conceded that in the same action the plaintiff can ask for rectification and consequential relief: Is it a mere technicality that he should ask for rectification before he can get relief on the basis of a reformed deed? What is the date from which his remedy commences? Is it the date of the deed and of the mistake, or is it the date of the failure to meet some obligation under the deed and, if the latter, what obligation? Is it the obligation to be found in the reformed or the un-reformed deed? To these questions we think there can only be one answer. Whether the pleadings and claim are viewed strictly or loosely, a plaintiff who claims more than the un-reformed deed gives him is claiming on the footing of a rectified deed and if the Court allows his claim, it allows it on that basis, that is, in effect, it rectifies the deed. It does not, nor can it let in a parol variation.
9. If what is in essence sought is rectification, it is manifest that the same tests and the same defences should be applied as would be applied if the plaintiff did what strictly he should do, viz., claim rectification and consequential relief.
10. Reliance was placed upon Mahadeva Aiyar v. Gopala Aiyar I.L.R. (1910) 34 M. 51 Rangasami v. Souri I.L.R. (1915) 39 M. 792 : 29 M.L.J. 229 Chinna Mallayya v. Veeriah (1915) 3 L.W. 551 and Baluswami Aiyar v. Lakshmana Aiyar I.L.R. (1921) 44 M. 605 : 41 M.L.J. 129 as showing that evidence could be given to prove mistake although no rectification be sought. In Rangasami v. Souri I.L.R. (1915) 39 M. 792 : 29 M.L.J. 229 and Baluswami Aiyar v. Lakshmana Aiyar I.L.R. (1921) 44 M. 605 : 41 M.L.J. 129 the mistake was alleged by way of defence. Mahadeva Aiyar v. Gopala Aiyar I.L.R. (1910) 34 M. 51 purports to follow Karuppa Goundan alias Thoppala Goundan v. Periathambi Goundan I.L.R. (1907) 30 M. 397. Karuppa Goundan alias Thoppala Goundan v. Periathambi Goundan I.L.R. (1907) 30 M. 397 was a case where the error was by way of misdescription. It is a case similar to In re Alexander's Settlement (1910) 2 Ch. 225 where Parker, J. (as he then was) treated the use of the word 'male' in 'tail male' as a misdescription. In Karuppa Goundan alias Thoppala Goundan v. Periathambi Goundan I.L.R. (1907) 30 M. 397 the evidence was let in under the provisions of sections 95 and 97 of the Evidence Act. It is thus an entirely different case from this. It is a case where the deed cannot be related precisely to existing facts. Chinna Mallayya v. Veeriah (1915) 3 L.W. 551 purports to follow Mahadeva Aiyar v. Gopala Aiyar I.L.R. (1910) 34 M. 51 though a reference is there made to the first proviso to Section 92. We are of the opinion that that proviso does not empower a plaintiff suing on an unreformed and registered and unambiguous deed to lead evidence to show that by a mistake a term has been omitted from the deed, unless the mistake is such a one as would found a claim for rectification or cancellation, and in such case the evidence will be tested by the same standards and the claim will be open to the same defences as though the action claimed rectification.
11. One test which equity applies in a suit for rectification is 'Is the proof of error clear and conclusive?' One defence equity allows is laches. Equity will not relieve him who tarries on the way. One bias equity always shows in such matters, viz., a bias in favour of the evidence given by the other party to the instrument; that is to say, the burden of proof lies heavily on the person seeking rectification.
12. Keeping the above principles in mind, how does the matter on the evidence stand? The deed is dated 4th January, 1917. The plaint is dated 29th October, 1926. During all those years this mistake lay dormant though it relates to interest The parties who are supposed to have agreed to something other than that expressed in the writing are C on the one side and M. S. and M. M. on the other side. C does not give evidence. M. S. gives evidence to the effect that the interest agreed to was Rs. 2 per annum (not per month) on Rs. 6,500. She does not appear to have been asked a single question as to whether the Rs. 2 per month on the Rs. 6,500 was an error. The only answer having any bearing on this point in cross-examination is: 'I did not offer to write for Rs. 2 per cent, interest because the previous rate was Rs. 3-8-0 per cent.' That obviously does not touch the point which the plaintiff had to establish, viz., that what had been agreed was Rs. 2 per cent, and what was written was a mistake. The question of mistake was never put to the defendant. The terms of the alleged agreement were never put to her. The explanation given for not calling C was that he was ill on and off for four months. 'He recovers and then falls ill.' No reason is offered why this witness could not have been examined on commission as was another witness to this matter. Two witnesses remain to be considered, P.W. 1 and P.W. 3. P. W. 1 is the person who wrote Ex. A. He says he left out the words 'per cent.' by oversight. He states there was a dispute as regards interest when Ex. A was executed. C suggested one rate, M. S. offered another and this counter-offer was not accepted. That evidence, so far as it goes, is to the effect that the parties were never ad idem. This witness then elaborates how this deed came into being. There was, it seems, a draft. P. W. 3 read out the draft, C, M. S. and M. M. amongst others being present. P. W. 1 wrote down the deed from this dictation and having written it read it over, there being present inter alia C (a money-lender), M. S. and M. M. It is not suggested that anything was read out other than appears now in the deed. It is not explained how a term that was not agreed, viz., the term as to interest could be in the draft or could be read but of the draft without comment being made.
13. P.W. 3 prepared and read out the draft. Where is this draft? It is not produced. This witness says he asked C's son for this draft on 4th September, 1928, i.e., on the day he first gave evidence: Eleven years after the deed was prepared: Nearly. two years after the suit was instituted. This vital document had apparently never before been enquired about. When asked for, it was found to be missing. This witness eleven years after the event pretends to remember the exact words he had written in the draft. A better example of the importance of excluding oral evidence to vary a written document can hardly be given than this witness's evidence at page 77. Never before this day on which he gave evidence, it appears, had this witness been asked what the correct rate was; but when asked he says, 'I thought within myself that I had dictated according to the draft and the writer might have written wrongly.' This, of course, amounts to nothing at all. The writer might have written wrongly or he might have written correctly.
14. There remains the circumstance that during the whole period sums were received from the mortgagor and credited in each case to capital; that no clear-cut demand for the interest alleged, viz., Rs. 2 per cent, was ever made in all the eleven years.
15. It is urged that the terms as they stand are so unusual as to show that the document cannot mean what it says. That is not in our opinion any ground for adding terms to an unambiguous deed. We do not even find the bargain to be either absurd or unlikely. These ladies were merely coming forward to offer a security for another's debt. These are, however, irrelevant considerations. It is obviously no ground for finding mutual mistake that the bargain evidenced is one-sided. At most that would show either unilateral mistake or fraud. Fraud is not suggested and unilateral mistake leads to no relief. The decree of the Lower Court is modified in accordance with the above findings. Plaintiff will have from and pay to defendants 1 and 2 proportionate costs in both Courts. Time for redemption extended up to the last day before vacation of the Lower Court.