Mr.Sampath had negotiated to purchase a residential site at Peenya for Rs. Four lakhs and got the sale deed registered. After
receipt of the sale deed, he found, that the dimensions of the area are wrongly
mentioned in the schedule as East to West 40' and north to south as 30'
instated of East to West 30' and North to South 40'. Mr.Rajagopal had a similar
problem in the sale deed, the boundaries of property purchased are wrongly
mentioned.
The case of Narasimhan is slightly different, he has
purchased two different properties from a common vendor under a common sale
deed including both the properties under single schedule. Mr. Narasimhan was
for a pleasant shock to find that encumbrance certificate did not reflect thesales in respective property schedules, but was combined under a single
property schedule.
Such instances are many. Many mistakes creep into the
sale deeds, as they are not properly verified and compared with the title
deeds, revenue records, and at times are not drafted by professionals/advocates.
Sometimes, the area of the property, survey numbers, location, boundaries, municipal
numbers, description and number of floors, are wrongly written. Names of
parties may be mis-spelt, amount of consideration may be wrong, easementary
rights may not have properly dealt. In many cases, the real contention of
parties to the deed may not have been reduced into writing.
Such mistakes, errors in the deeds should be corrected
by another document. This is called rectification deed. It is equitable relief
granted by the Court of equity based on doctrine of mistake. In order to have
deed of rectification, there must be mutual mistake and the original deed does
not reflect the true intention of parties.
More important is that mistake should be of facts and
not a mistake of law. But, mistake of foreign law is considered as mistake of
fact. Sections 20 and 21 of Indian contract act deals with this aspect.
When the parties to deed, agreed to modify, add, delete
the terms of original deed to bring in true intention it is necessary to reduce
such modifications into writing properly and pay the requisite stamp duty.
Rectification Deeds are executed on mutual consent of
the parties to main deed, all the parties who have executed the main deed
should join in execution. But real problem lies where the mutual consent is not
possible. In such cases, the recourse is to file a suit under section 26 of
Specific Relief Act 1963. This section provides, where the real intention of
the party is not properly expressed in the documents because of mistake of fact
or fraud, either the party or his representative may institute a suit to have
the deed rectified.
The section also empowers the court to direct the
rectification of an instrument if the court satisfies that the deed does not
express the real contention of the parties. Further the contract in writing may
first be rectified and then if the party claiming rectification has so prayed,
in his pleading and the court thinks fit, may be specially enforced. This
relief will be granted, if it has been specially claimed. If it has not claimed
such relief in his pleadings, the court at any stage of the proceedings may
allow him to amend the pleadings. This is entirely discretionary and when
granted does not prejudice the rights acquired by the third party in good faith
for value.
If the original deed is registered, the corresponding
rectification deed also require Registration. The stamp duty and registration
charges are payable as prescribed by respective states.
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