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Kota China Mellayya Vs. Kannekanti Veeriah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1916Mad795(1); 31Ind.Cas.671
AppellantKota China Mellayya
RespondentKannekanti Veeriah and ors.
Cases ReferredMahadeva Aiyar v. Gopala Aiyar
Excerpt:
evidence act (i of 1872), section 92, proviso 1 - mutual mistake as to description of land in registered mortgage-deed, whether can he proved by oral evidence--construction of deed--rights of bona fide purchasers for value. - .....so established, the deed can be construed by the courts as if the mistake had been rectified, without the instrument having been actually ordered to be rectified in a suit brought for the purpose under section 31 of the specific relief act, subject to the condition that the rights of third persons acquired in good faith and for value should not be prejudiced thereby. see also mahadeva aiyar v. gopala aiyar 8 ind. cas. 390 therefore, uphold the learned subordinate judge's decision in establishing the rights of the 3rd and 4th defendants as mortgagees of d. no. 196 seri land. but he should not have released the entire interest in the land, and we modify his decree by giving a declaration to plaintiff that he is entitled to attach and sell it subject to the mortgage in favour of defendants.....
Judgment:

1. We are of opinion that a mutual mistake made in describing a piece of land in a registered mortgage-deed can be proved by oral evidence (Section 92, proviso 1, of the Evidence Act) and that when such a mistake is so established, the deed can be construed by the Courts as if the mistake had been rectified, without the instrument having been actually ordered to be rectified in a suit brought for the purpose under Section 31 of the Specific Relief Act, subject to the condition that the rights of third persons acquired in good faith and for value should not be prejudiced thereby. See also Mahadeva Aiyar v. Gopala Aiyar 8 Ind. Cas. 390 therefore, uphold the learned Subordinate Judge's decision in establishing the rights of the 3rd and 4th defendants as mortgagees of D. No. 196 seri land. But he should not have released the entire interest in the land, and we modify his decree by giving a declaration to plaintiff that he is entitled to attach and sell it subject to the mortgage in favour of defendants Nos. 3 and 4. We shall make no order as to the costs of this appeal.


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