The judgment establishes the requirement of clear and strong evidence to prove mutual mistake for rectification of documents under the Specific Relief Act, 1963.

P. Narayana Pillai, J.

1. This appeal by plaintiff arises from a suit for recovery, on the strength of title, of possession of property which is 85 cents of arecanut garden, with mesne profits. In the partition evidenced by Ext.A-1, made in the family of plaintiff and defendants 1 and 2, who are brothers, and some others, on April 24,1961, A schedule-properties including the suit property, were allotted to the share of plaintiff, C schedule-properties to defendants 1 and 2 and some others and B schedule-properties to the heirs of one Anantha Rao. The plaintiff alleged that defendants 1 and 2 trespassed on the suit property on April 5, 1967 and claimed mesne profits from that date. Defendants 1 and 2 while admitting their being in possession of the property denied plaintiff title to it. According to them the suit property was really allotted to them in Ext. A-1 and it happened to be included in A schedule in Ext. A-1 by mutual mistake. During suit they assigned their rights in the property, in favour of the eighth defendant who subsequently assigned the same to the ninth defendant. The trial court upheld the contention of defendants 1 and 2 and dismissed the suit. In case the plaintiff had to be given a decree for possession with mesne profits the trial court found in its judgment that it had to be from January 5, 1967, and that at the rate claimed in the plaint.

2. This is not a case of there being any ambiguity in the description of any property included in any schedule in Ext. A-1. The suit property, without any ambiguity in its description, is included not in the C schedule but in the A schedule of Ext. A-1. When that is the position the result of acceptance of the contention of the defendants would be to take away the suit property from the A schedule and put it in the C schedule of Ext. A-1 and it is mutual mistake that is pleaded in justification of it.

3. For rectification under section 26 (1) (c), Specific Relief Act, 1963 of a document, on the ground of mutual mistake, it has to be shown that owing to mutual mistake of the parties the document did not at the time of its execution express their concurrent intention. While unilateral mistake is sufficient in appropriate cases for rescission of contracts, for rectification of documents on the ground of mistake the mistake should be mutual. There is great difference between setting aside a document and rectifying it on the ground of mistake. The degree of proof required in cases of rectification is great. It should be beyond all reasonable doubt. Evidence in that respect should be clear and strong. This was emphasised by Chelmsford, L.C., even more than a century back in Fowler v. Fowler, (1859) 4 Do. G. and J. 250: 45 E.R. 97 wherein he said:”

"The power which the court possesses of reforming written agreements where there has been an omission or insertion of stipulations contrary to the intention of the parties and under a mutual mistake is one which has been frequently, and most usefully exercised. But it is also one which should be used with extreme care and caution. To substitute a new agreement for one which the parties have deliberately subscribed ought only to be permitted upon evidence of a different intention of the clearest and most satisfactory description. Lord Thurlow language is very strong on this subject; he says, ˜the evidence which goes to prove that the words taken down in writing were contrary to the concurrent intention of all parties must be strong, irrefragable evidence; Lady Shelburne v. Lord Inchiquin (1 Br. Ch. Ca. 341). And this expression of Lord Thurlow is mentioned by Lord Eldon in the Marquis of Townshend v. Stangroom (6 Ves. 334), without disapprobation. If, however, Lord Thurlow used the word ˜Irrefragable, in its ordinary meaning, to describe evidence which cannot be refuted or overthrown, his language would require some qualification; but it is probable that he only meant that the mistake must be proved by something more than the hi