1. The first defendant is the appellant. The suit is (1) for a declaration that the plaintiff is entitled to the western half of the suit property; (2) for rectification of the plaintiff's sale deed dated 1-8-1960, describing the property conveyed under it as the western half instead of the eastern half of the plaint property; (3) for recovery of the western half of the suit property from the first defendant; and for other reliefs.
2. The plaintiff's case is that one Perumal Asari originally owned the suit property, that he died about 30 years prior to the date of the plaint, leaving behind him two sons, Subbiah Asary and Velayudhan Asari, that the two sons became divided in status even before 1117 M. E., and each became entitled to one half share in the property, the eastern half being taken by Velayudhan Asari, and the western half being taken by Subbiah Asari. The elder brother Subbiah died about the year 1118 M. E. leaving behind him his son Eswaramoorthi Asari and his wife Chandanam Ammal. The son died about 15 years prior to the date of plaint, with the result that Chandanam Ammal became the full and absolute owner of the half share in the suit property. The plaintiff's case is that on 1-8-1960, the said Chandanam Ammal executed a sale deed in favour of the plaintiff in respect of the eastern half share in the plaint property of which she was then in possession. Subsequent to the sale, the plaintiff leased the eastern half to one Subramania Pillai, who was in possession as his tenant. While so, the plaintiff filed O. S. 1 of 1961 against the tenant for recovery of the property with arrears of rent, and the suit was decreed. In execution, the plaintiff therein got delivery of the eastern half of the suit property, and is in possession of the same. The case of the plaintiff is that at the time of the sale to the plaintiff, the western half was in possession of a stranger, and the first defendant alleging that he got title to and possession of the whole plaint property filed O. S. 114 of 1962 on the file of the District Munsif Court, Nagercoil, for declaration of his title and injunction. The present plaintiff was the first defendant in that suit. Chandanam Ammal was the second defendant, and Subramania Pillai was the third defendant. The said suit was decreed in favour of the first defendant for possession, the court holding that Subbiah got the western half and Velayudhan took the eastern half, and that the first defendant's vendor was competent to convey only the eastern half of the property. The plaintiff's case is that at the time of the same deeds, none of the parties knew as to how the two brothers divided and took half share each in the plaint property, and the facts became known only during the trial of O. S. 144 of 1962. The present suit for rectification is therefore filed.
3. Defendants 2 and 3 filed separate written statements admitting the claim of the plaintiff, and conceding that the suit may be decreed.
4. The first defendant is the contesting defendant, and his case was that the suit for rectification is not proper relief, that Chandanam Ammal's deceased husband's half right to the property was lost by adverse possession by the first defendant and his predecessors-in-title, and that the plaintiff is not entitled to any of the reliefs claimed.
5. The trial court held the question of rectification does not properly arise in this case and the plaintiff is not entitled to the relief of execution of any rectification deed in pursuance of the sale deed Ex. A-1 as claimed by him. The trial court also held that the plaintiff had no title to the western half of the plaint property, and that this being a suit in ejectment, the plaintiff has not established his possession within 12 years of suit. In the result, the suit was dismissed.
6. The plaintiff filed A. S. 47 of 1967 on the file of the Court of the Sub-ordinate Judge, Nagarcoil. The learned Judge reversed the decision of the trial court, and upheld the plaintiff's claim of title to the western half share and for the relief of rectification of Ex. A-1 by incorporating therein the western half instead of the eastern half share. In the result, the appeal was allowed and the suit was decreed as prayed for. The first defendant has filed the above second appeal.
7. The learned counsel for the appellant contends that the suit for rectification will not lie in the absence of a concluded antecedent contract even assuming that the mistake was mutual. The learned counsel refers to the decision in Haji Abdul Rahman Allarakhia v. Bombay and Persia Steam Navigation Co., ILR (1892) 16 Bom 561. The facts therein are: The plaintiffs required a steamer to sail from Jedda 'fifteen days after the Haj' in order to convey pilgrims returning to Bombay. The chartered a steamer from the defendants in June, 1891, for that purpose. The date inserted in the charter-party was 'the 10th August, 1892 (fifteen days after the Haj)'. 'The 10th day of August, 1892' was given or accepted by the plaintiff in the belief that it corresponded with the fifteenth day after the Haj. The defendants had no belief on the subject, and contracted only with respect to the English date. The 19th July, 1892 and not the 10th August, 1892, in fact corresponded with the fifteenth day after the Haj. On finding out the mistake in March, 1892, the plaintiff brought this suit for rectification of the charter-party by the insertion of the correct date, the 19th July, 1892, instead of the erroneous date, the 10th August 1892. Farren, J. held that the plaintiff seeking rectification must show that there was an actual concluded contract antecedent to the instrument sought to be rectified and that such contract is inaccurately represented in the instrument. The learned Judge held that the mistake was not mutual, but on the plaintiff's part only and, therefore, the claim for rectification was disallowed. The said decision has no application to the facts of the present case where the mistake is mutual.
8. The next decision referred to by the learned counsel is the one reported in Bepin Krishna Ray v. Jogeshwar Ray : AIR1921Cal730 . The head-note therein runs as follows:--
'In every case were rectification is sought, it must clearly, and satisfactorily appear that the precise terms of the contract had been orally agreed upon and that the writing afterwards signed failed to be, as it was intended, an execution of such previous agreement, but on the contrary expressed a different contract. Mutuality of mistake might arise from the fact that the mistake was made by the writer who acted as mutual agent of both parties in reducing the contract to the form of a written agreement. Where there is unilateral mistake, rectification is refused.'
Mookerjee, J. at page 734, observed that the first point for consideration is, whether through a mutual mistake of the parties the mortgage instrument in this case does not truly express their intention; in other words, the plaintiffs who seek the assistance of the court for the rectification of the written instrument must clearly prove that there was a prior completed agreement which according to the common intention was embodied in writing, but by reason of mistake in the writing, this did not express or give effect to the agreement. The learned Judge referred to the passage from Mackenzie v. Coulson, 1889-8 Eq 368 namely 'Courts of Equity do not rectify contracts, they may and do rectify instruments purporting to have been made in pursuance of the terms of contracts'. The learned Judge has referred in detail to the various English decisions and other cases on the point and it is unnecessary to refer to them in detail. The learned counsel referred to other decisions, namely, Sabhaji v. Nawalsingh, , and U. Shwe Thaung v. U. Kyaw Dun, AIR 1930 Rang 12 in support of his contention. The decision in F. E. Rose Ltd. v. W. H. Pim Ltd., 1953 2 All ER 739, has been referred to. The facts therein are that in pursuance of an enquiry for a supply of 'horse-beans described here as feveroles', and not knowing that feveroles were a special medium size variety of horse-beans, buyers asked sellers what they were and were informed that feveroles and horse-beans were the same thing. The two parties being under this misapprehension the buyers entered into an oral agreement for the purchase from the sellers of five hundred tons of Tunisian Horse-beans, the agreement being incorporated in a written contract. The buyers subsequently brought an action for the rectification of the written contract by the addition of the word 'feveroles' after the words 'Tunisian horse-beans'. The Court of Appeal held that the oral agreement being only for the sale of horse-beans and the written contract correctly expressed that oral agreement, it could not be rectified. Denning, L. J. at page 747 observed as follows:--
'The buyers now, after accepting the goods seek to rectify the contract. Instead of its being a contract for 'horse-beans' simpliciter, they seek to make it a contract for 'horse-beans described in Egypt as feveroles' or, in short, a contract for 'feveroles'. The Judge has granted their request. He has found that there was 'a mutual and fundamental mistake' and that the sellers and buyers, through their respective market clerks, 'intended to deal in horse-beans of the feveroles type'. And he has held that, because that was their intention--their continuing common intention--the court could rectify their contract to give effect to it. In this I think he was wrong. Rectification is concerned with contracts and documents, not with intentions. In order to get rectification, it is necessary to show that the parties were in complete agreement on the terms of their contract, but by an error wrote them down wrongly. And in this regard, in order to ascertain the terms of their contract, you do not look into the inner minds of the parties into their intentions any more than you do in the formation of any other contract. Yet you look at their outward acts, i. e., at what they said or wrote to one another in coming to their agreement and then compare it with the document which they have signed. If you can predicate with certainty what their contract was, and that it is, by a common mistake, wrongly expressed in the document, then you rectify the document. But no thing less will suffice'.
9. In this case, Chandanam Ammal excepted a sale deed in favour of the plaintiff in respect of the eastern half share in the plaint property. Chandanam Ammal represented her husband Subbiah Asari and Subbiah Asari in the partition got only the western share. Chandanam Ammal could not deal with the eastern half as her husband what she intended to convey was only the western half; and what the purchaser intended to purchase was the western half belonging to Subbiah. Thus, the parties intended to sell the property belonging to Subbiah and Subbiah owned only the western half. The recital in the document that it is the eastern half, is, therefore, a mistake and this being a mutual mistake, the present suit for rectification of the mistake is maintainable. The original contract between the parties was for the sale of the western half belonging to Subbiah and the contract being clear, it was wrongly expressed in the document as the eastern half. Thus, there being a concluded contract for the sale of Subbiah's wife wrongly mentioned in the sale deed that the property sold is the eastern half share. The conduct of the parties, and the subsequent litigation, viz., O. S. 144 of 1962 referred to above leave no room for any doubt as to the property agreed to be sold. The decision in O. S. 144 of 1962 to which the present plaintiff and his vendor are parties, conclusively established the contract between the parties as to the property intended to be sold. The decisions cited by the respondent's counsel do not lay down any contrary principle. The respondent's counsel appears to be under a wrong impression that the aforesaid decisions require a further agreement for rectification antecedent to the suit which is not correct. On the other hand, decisions have gone to the extent of ordering restitution even though the right to secure restitution is barred by limitation. One such instance is the decision is Tatali Sooramma v. Kovvari Venkayya, AIR 1938 Mad 589. In this case, the concluded contract between the parties being clear a mistake in describing the property sold as eastern half while in fact the contract was for the sale of the western half is certainly maintainable. In this view, the decision of the lower appellate court ordering restitution is correct and the second appeal fails and is dismissed. There will, however, be no order as to costs. No leave.
10. Appeal dismissed.