31. When instrument may be
rectified.
32. Presumption as to intent of
parties.
33. Principles of rectification.
34. Specific enforcement of
rectified contract.
DETAILS :
31. When instrument may be
rectified.– When, through fraud
or a mutual mistake of the
parties, a contract or other
instrument in writing does not
truly express their intention,
either party, or his representative
in interest, may institute a suit to
have the instrument rectified; and
if the Court find it clearly proved
that there has been fraud or
mistake in framing the instrument,
and ascertain the real intention of
the parties in executing the same,
the Court may in its discretion
rectify the instrument so as to
express that intention, so far as
this can be done without prejudice
to rights acquired by third
persons in good faith and for
value.
Illustrations
(a) A, intending to sell to B his
house and one of three godowns
adjacent to it, executes a
conveyance prepared by B, in
which, through B’s fraud, all three
godowns are included. Of the two
godowns which were fraudulently
included, B gives one to C and lets
the other to D for a rent, neither
C nor D having any knowledge of
the fraud. The conveyance may, as
against B and C, be rectified so as
to exclude from it the godown
given to C; but it cannot be
rectified so as to affect D’s lease.
(b) By a marriage settlement, A,
the father of B, the intended wife,
covenants with C, the intended
husband, to pay to C, his
executors, administrators and
assigns, during A’s life, an annuity
of Rs.5,000.
(c) C dies insolvent and the official
assignee claims the annuity from
A. The Court, on finding it clearly
proved that the parties always
intended that this annuity should
be paid as a provision for B and
her children, may rectify the
settlement and decree that the
assignee has no right to any part
of the annuity.
32. Presumption as to intent of
parties .– For the purpose of
rectifying a contract in writing, the
Court must be satisfied that all
the parties thereto intended to
make an equitable and
conscientious agreement.
33. Principles of rectification.– In
rectifying a written instrument,
the Court may inquire what the
instrument was intended to mean,
and what were intended to be its
legal consequences, and is not
confined to the inquiry what the
language of the instrument was
intended to be.
34. Specific enforcement of
rectified contract .– A contract in
writing may be first rectified and
then, if the plaintiff has so prayed
in his plaint and the Court thinks
fit, specifically enforced.
Illustration
A contracts in writing to pay his
attorney, B, a fixed sum in lieu of
costs. The contract contains
mistakes as to the name and
rights of the client, which, if
construed strictly, would exclude
B from all rights under it. B is
entitled, if the Court thinks fit, to
have it rectified, and to an order
for payment of the sum, as if at
the time of its execution it had
expressed the intention of the
parties.
rectified.
32. Presumption as to intent of
parties.
33. Principles of rectification.
34. Specific enforcement of
rectified contract.
DETAILS :
31. When instrument may be
rectified.– When, through fraud
or a mutual mistake of the
parties, a contract or other
instrument in writing does not
truly express their intention,
either party, or his representative
in interest, may institute a suit to
have the instrument rectified; and
if the Court find it clearly proved
that there has been fraud or
mistake in framing the instrument,
and ascertain the real intention of
the parties in executing the same,
the Court may in its discretion
rectify the instrument so as to
express that intention, so far as
this can be done without prejudice
to rights acquired by third
persons in good faith and for
value.
Illustrations
(a) A, intending to sell to B his
house and one of three godowns
adjacent to it, executes a
conveyance prepared by B, in
which, through B’s fraud, all three
godowns are included. Of the two
godowns which were fraudulently
included, B gives one to C and lets
the other to D for a rent, neither
C nor D having any knowledge of
the fraud. The conveyance may, as
against B and C, be rectified so as
to exclude from it the godown
given to C; but it cannot be
rectified so as to affect D’s lease.
(b) By a marriage settlement, A,
the father of B, the intended wife,
covenants with C, the intended
husband, to pay to C, his
executors, administrators and
assigns, during A’s life, an annuity
of Rs.5,000.
(c) C dies insolvent and the official
assignee claims the annuity from
A. The Court, on finding it clearly
proved that the parties always
intended that this annuity should
be paid as a provision for B and
her children, may rectify the
settlement and decree that the
assignee has no right to any part
of the annuity.
32. Presumption as to intent of
parties .– For the purpose of
rectifying a contract in writing, the
Court must be satisfied that all
the parties thereto intended to
make an equitable and
conscientious agreement.
33. Principles of rectification.– In
rectifying a written instrument,
the Court may inquire what the
instrument was intended to mean,
and what were intended to be its
legal consequences, and is not
confined to the inquiry what the
language of the instrument was
intended to be.
34. Specific enforcement of
rectified contract .– A contract in
writing may be first rectified and
then, if the plaintiff has so prayed
in his plaint and the Court thinks
fit, specifically enforced.
Illustration
A contracts in writing to pay his
attorney, B, a fixed sum in lieu of
costs. The contract contains
mistakes as to the name and
rights of the client, which, if
construed strictly, would exclude
B from all rights under it. B is
entitled, if the Court thinks fit, to
have it rectified, and to an order
for payment of the sum, as if at
the time of its execution it had
expressed the intention of the
parties.
