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1950 Supreme(Gau) 8
GAUHATI HIGH COURT
Thadani, Ram Labhaya, JJ.
Ratneswar Goswami -Appellant
Versus
Mongoli Chutiani -Respondent
Second Appeal No. 9 of 1949
Decided On : 25-01-1950
J.C.Sen, K.R.Barua
A transfer in excess of the legal rights of a transferor does not entitle a transferee to have the instrument of transfer rectified under Section 31 of the Specific Relief Act, 1877.
Headnote:
RECTIFICATION OF SALE DEED - MUTUAL MISTAKE - SPECIFIC RELIEF ACT, 1877, S. 31 - LANDLORD AND TENANT - NOTICE TO QUIT - TRANSFER OF PROPERTY ACT, 1882, S. 106 - SALE OF REVERSIONARY INTEREST - SPECIFIC PERFORMANCE.
Fact of the Case:
Plaintiff brought a suit for rectification of a sale deed executed in his favor by the defendant, a widow, for the property in suit, and for declaration of his title to and confirmation of possession of the rupit land and khas possession of the busti land. The defendant claimed that she never sold the property to the plaintiff in any capacity and that she was entitled to remain in possession of the property in her own right.
Finding of the Court:
The court found that the plaintiff paid the debt and under the sale deed got possession of the rupit land. The busti land remained in possession of the defendant. The court also found that the defendant occupied the busti land as a tenant of the plaintiff.
Issues: 1. Whether the sale deed could be rectified due to mutual mistake under Section 31 of the Specific Relief Act, 1877? 2. Whether the defendant was a tenant of the plaintiff in respect of the busti land? 3. Whether the plaintiff was entitled to possession of the busti land?
Ratio Decidendi: 1. The court held that the alleged mistake in the sale deed did not amount to a mutual mistake within the meaning of Section 31 of the Specific Relief Act, 1877. The court found that the defendant intended to convey what she did in fact convey by the instrument and that the minors did not have a present interest in the property. 2. The court held that the defendant was a tenant of the plaintiff in respect of the busti land, as found by the trial court and not reversed by the lower appellate court. 3. The court held that the plaintiff was entitled to a decree for possession of the busti land in virtue of the relationship of landlord and tenant created between the plaintiff and the defendant after the defendant executed the sale deed.
Final Decision: The court affirmed the judgment of the lower appellate court refusing to rectify the instrument but modified the judgment and decree by decreeing the plaintiff's suit for possession of the busti land by evicting the defendant.
[2] The pltf. brought a suit for the rectification of a sale-deed dated 17-7-1935, executed in his favour by the deft, a widow of one Sonaram alias Someawar, purporting to convey the property in suit of the value of leas than Bs. 100, & for declaration of his title to & confirmation of possession of the rupit land & khas possession of the busti land.
[3] The pltf.' a case was that during his lifetime Sonaram, the husband of the deft. reap, had incurred a loan from the Kuhisrbaria Gaolia Bank, for which the applfc. had stood surety with the bank; soma time before 1935, Sonaram died leaving his widow, the reap & two minor daughters; in due course the bank demanded payment of the loan which then amounted to Rs. 100, & the deft.-resp. agreed to sell the land in suit to the plft. for Rs 100 in order to dicharge the loan; the sale-deed was not registered, but delivery of possession was made to him & in due course he had his name entered in the mutation register; the deft, however; wag permitted to occupy the busti portion of the land in suit as a monthly tenant, the rupit land remained in his possession, 10 years later in 1945, one Bhaluka, a cousin of the resp. interfered with his possession by cutting & removing standing crops, whereupon in 1945 he brought a suit for ejectment & recovery of the suit land, but later withdrew it with permission to bring a fresh suit, he brought the present suit in 1946.
[4] In this suit, in addition to the prayer for a declaration of his title & possession, the pltf. sought to rectify, the sale-deed of 1935. The prayer for rectification was based upon the allegation that the deft, was the sole heir of her deceased husband, Sonaram, & that she alone was, therefore, competent to execute the sale-deed in her own right, but that the writer of the sale-dead wrote out the deed by which the deft. as guardian of her minor daughters purported to sell their interest only by mistake; on discovering the mistake the plft. served the deft, with a notice, & on the deft.'s failure to comply with his demand, the pltf. brought the present wit.
[5] The defence to the suit was that there was no contract to sell the land as alleged by the pltf. that possession of the landa in suit was not made over to the pltf. that she was not a tenant of the pltf. in respect of the busti portion of the land. Other technical defences were taken by the deft, to which it is not necessary to refer.
[6l On the pleadings, the trial Ct. framed the following issues:
1. Whether the suit is maintainable in its ipcesent form?
2. Whether there is any cause of action?
3. Whether the suit is barred by limitation?
4. Whether the suit is bad for multifarioua. ness?
5. Whether deft, contracted to sell the land & agreed to execute a deed of sale on her own bahalf as alleged in the plaint?
6. Whether the deft, made over possession of the suit land & entered into occupation of the basti land as pltf's tenant?
7. Whether the pltff. has been in occupation of the rupit partion of the suit land?
8. Whether the pltf. is entitled to have a sale deed executed ia place of the one filed in the suit?
9. Whether pltf. is entitled to declaration of title & confirmation of possession of the 'rupit' land & recovery of possession of the busti land?
10. Whether deft, is entitled to compensation under 8. 35 (A), C. P. 0 ; if so, how muoh?
11. What relief, if any, are the parties en. titled to? As a result of its findings, the trial Ct. decreed the pltfs. suit.
[7] The lower appellate Gt. reversed the judgment & decree of the trial Ct. & bald that the pltf. was not entitled to a decree for the rectification of the sale-deed of 1935.
[8] It is not disputed by the applt'a advocate that the relief for the rectification of the instrument w
