IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 291-292 OF 2006

Subhadra and ors.       ...Petitioners

Versus

Thankam                    …Respondent

JUDGMENT

Swatanter Kumar, J.

1. Ramakrishna Menon, who unfortunately  died during  

the pendency of the litigation, entered into an agreement to  

sell, dated 20th June, 1979, in favour of Thankam for sale of  

the full rights over the property measuring about 5 cents of  

land  in  Sy.  No.  460/3  in  Peringavu  Village  and  all  

improvements purchased and processed by him under the  

Document No. 1887 of 1969 and registered in Paras 283 to  

285 of Book No. 1 Volume 54 of Thrissur,  Sub Registrar  

Office for a total consideration of Rs.45,250/-.  A sum of  

1

Rs.5,000/- was paid by way of earnest money and it was  

agreed that the sale deed would be executed in favour of the  

predecessor,  within  six  months  from  the  date  of  the  

execution  of  the  Agreement.   It  was  also  stated  in  the  

Agreement,  which came to be exhibited as Ext.A1 during  

the  course  of  recording  of  evidence,  that  all  receipts,  

encumbrance certificate etc. should be taken and handed  

over to the predecessor at the time of execution of the sale  

deed.  In other words, the sale deed was to be executed on  

or  before  20th December,  1979.   Thankam  served  the  

Registered  Notice  dated  10th December,  1979  upon  the  

seller  stating  that  they  were  always  ready  and willing  to  

purchase  the  property  and  were  ready  to  execute  a  sale  

deed, free of encumbrance, in their favour.  A reply to the  

above notice was given on 12th December 1979, saying that  

the seller was prepared to give the land lying within the four  

well-defined boundaries, but only 5 cents would be given to  

the plaintiff.  Thereafter, the defendant tried to demolish the  

northern boundary  wall  and tried  to  shift  it  towards  the  

south.  A suit was instituted by Thankam as O.S. No. 1387  

2

of  1979  simply  to  prevent  this  mischief  in  which  a  

commissioner was appointed to file a report after making an  

inspection of the property.  Thereafter, the predecessor in  

interest and her husband approached the defendant with  

the  balance  consideration  to  get  the  sale  deed  executed,  

which  was  not  so  done  and  they,  then,  filed  a  suit  for  

specific performance, which came to be registered as O.S.  

No. 3 of 1980.

2. Thankam, the plaintiff in this Suit is the respondent  

before  this  Court,  while  the  applicants  are  the  legal  

representatives  of  the  deceased  seller  who,  as  already  

noticed, were brought on record.  The Learned Trial Court  

framed the following issues:

(i) What is  the correct  extent  or identity of  the  property agreed to be sold?

(ii) Whether the defendant had committed breach  of the agreement?  

(iii) Whether  the  plaintiff  is  entitled  to  specific  performance of the agreement?

3

3. Both the above suits were tried together and finally,  

vide  its  judgment  and  decree  dated  24th March,  1994,  a  

decree was passed in favour of the respondent in both the  

suits.  While granting a decree for specific performance, the  

Court  directed  the  payment  of  the  balance  price  of  

Rs.45,250/- at the time of registration of the sale deed.  In  

the event the appellant failed to get the sale deed executed,  

the same was to be executed through the Court at the cost  

of  the  appellant.   This  judgment  and  decree  of  the  trial  

Court  was  challenged  by  the  appellants  by  filing  two  

separate appeals being Appeal Nos. 354 of 1994 and 667 of  

1995 before the High Court of Kerala at Ernakulam.  The  

High Court rejected both the appeals and while relying upon  

the report of the commissioner Ext.C1, it held that in the  

agreement, the intention of the parties was to sell the entire  

property  obtained  by  him  as  per  Ext.B1,  in  which  the  

property had been fully described and 5 cents did not refer  

to  the  entire  subject  matter  agreed to be sold under  the  

terms  of  Agreement  Ext.A1.   Being  aggrieved  by  the  

judgment of the High Court dated 11th November, 2003, the  

4

appellant  has  filed  the  present  two  appeals  being  Civil  

Appeal Nos. 291-292 of 2006.  The main contentions raised  

before  us  are  that  the  language  of  Agreement  Ex.A1  is  

ambiguous,  uncertain  and  that  the  respondent  ought  to  

have  sought  rectification  of  the  deed  in  relation  to  that  

extent of the property in terms of Section 26 of the Specific  

Relief  Act  1963  (hereinafter  refer  to  as  ‘the  Act’).   It  is  

further  argued  that  the  Courts  in  the  judgments  under  

appeal have failed to appreciate the documentary and oral  

evidence in its correct perspective inasmuch as only 5 cents  

of land have been agreed to be sold to the respondent by the  

appellant  and/or  their  predecessor  in  interest  and  that  

much of land was not available.   

4. At the very outset, we may notice that at page 18 of  

the paper  book translated copy of  Ext.A1 has been filed.  

This document does not contain any reference or mention  

about  5  cents  of  land  of  the  Sy.  No.  argued  to  be  sold.  

However,  the  original  document  which  was  shown  to  us  

during the course of the hearing does indicate measurement  

5

of land as 5 cents. The Learned Counsel appearing for the  

respondent stated that the land agreed to be sold was 5  

cents,  but  in  addition  thereto,  the  other  structures  as  

contemplated  in  Ex.B1  were  also  to  be  sold  for  the  

consideration  stated  in  Ex.A1.   Thus,  according  to  the  

Learned Counsel  appearing for the respondent, there was  

hardly  any  dispute  or  appropriate  defence  raised  to  the  

claim  of  the  respondent  before  the  Trial  Court,  as  such  

decree  in  favour  of  the  respondent  has  been  passed  in  

accordance with law and did not call for any interference by  

this Court.

5. At  the  very  outset,  we  may  notice  that  there  are  

concurrent findings of facts recorded by the Courts in the  

impugned judgments as such we do not propose to interfere  

in  such  findings  of  facts.   We  would  only  refer  to  the  

necessary  factual  matrix  of  the  case  for  the  purpose  of  

determination  of  the  legal  controversy  as  to  whether  the  

agreement  suffers  from  any  ambiguity  and  whether  

rectification  of  the  document,  in  the  facts  and  

6

circumstances of  the case,  was a condition precedent for  

passing a decree for specific performance.  We may refer to  

the findings recorded by the Learned Trial Court in regard  

to the description of the property and other facts which may  

be of relevance for the purposes of determining the main  

controversy between the parties which reads as under:

“16.  This  document  is  marked  as  Ext.B1.  The description of the property  given  in  Ext.  B1  would  show that  it  is  about  5 cents  of  land comprised in Sy.  460/3.  It is the southern portion of the  property  of  the  entire  extent  that  was  sold.   In  the  document  there  is  the  reference to the building in the property  and the right to collect the rent from the  occupants……

…..The  commissioner  on  the  basis  of  the  above  said  document  tried  to  fix  the  northern  boundary  of  the  property  promised to be sold.  When he measured  5 cents of land, it is his report that the  northern old boundary wall was found to  be about ¾ dannu to .16 dannu further  north to the boundary fixed by measuring  the property to the extent of 5 cents.  The  eastern  property  of  Kuttappan  Master  was found to be 2.4 dannu away from the  eastern boundary of the 5 cents of land.  But the commissioner was not directed to  find  out  the  length  and  breadth  of  the  property which is given in Ext. B1 as 4  dannu and 6  ¼ dannu.   It  is  also  the  

7

report of the commissioner that when the  5 cents of land was separately measured,  the  northern  boundary  so  fixed  would  pass  through  the  existing  latrine  and  bath  room,  which  was  an  old  construction  near  to  the  northern  boundary.  Thus it is very clear that when  the property is measured on the basis of  the  extent  shown  in  Ext.  B1,  there  is  discrepancy  with  respect  to  the  description  of  the  property  in  Ext.  B1  document.  In Ext. B1 document there is  the  mentioning  of  occupation  of  the  building by tenants and it is the admitted  case that there are old latrine and bath  room existing on the northern side of the  property  that  being  in  the  use  of  the  tenants.  It is the case of the plaintiff that  there  are  two  tenants  in  the  property  occupying  the  two  portions  of  the  building  constructed  under  the  same  roof.   It  is  the  admitted  case  of  the  defendant  that  he  renewed  the  rental  transactions with the tenants occupying  the  building.   The  earlier  commission  report  shows  that  on the  northern  wall  there is a gap for entering into the plaint  schedule  property  from  the  rest  of  the  property  owned by the  mother-in-law of  the  defendant.   In  Ext.C1  report  the  commissioner has made it very clear that  the property is having about 4 dannu and  1 ½ kole width.  In the second report it is  stated that the length of the property is  more than 2.4 dannu than what is stated  in  Ext.B1.   But  as  far  as  eastern  boundary is concerned, it is clearly stated  in  Ext.  B1  document  that  it  is  the  property  owned  by  Kuttappan  Master.  

8

As  far  as  the  width  of  the  property  is  concerned, the measurement of 4 dannu  is  almost  accurate.   When  there  is  discrepancy  among  Sy.  No.,  extent  and  boundaries  of  a  property,  the  more  certain one is to prevail upon that.

17. The vender of the property was  not  examined  to  ascertain  that  she  is  having  property  further  south  to  her  southern  compound  wall  mentioned  in  the  plaint  as  the  northern  compound  wall.   So  long  as  the  vendor  was  not  examined,  it  cannot be said that she is  claiming to have any property beyond the  southern  compound  wall  which  is  the  northern  boundary  of  the  property  sold  by Ext. B1.  It is already found that there  is no separate description of the property  in Ext. A1 karar.  The mentioning is that  of the property purchased on the basis of  Ext. B1 document.  Nothing is stated in  Ext.B1  document  regarding  the  balance  of  the  property  to  be  retained  by  the  intended seller obtained on the basis  of  Ext. B1.  There is no mentioning of value  of the property per cent.   Thus Ext.  A1  karar was executed with the intention to  sell  the  entire  property  obtained by  the  defendant  on  the  basis  of  Ext.  B1  document.  It that is so, the assertion of  the plaintiff that he was willing to execute  the  document  after  parting  with  the  balance of consideration is to be upheld.  The insistence of the defendant that the  property should be measured so as to fix  the extent i.e 5 cents, is only an attempt  to evade the execution of the document.  The parties never intended to execute any  

9

document  only  for  5  cents  as  the  intention  is  to  sell  the  entire  property  covered  by  Ext.  B1.   If  that  is  so,  the  plaintiff  is  entitled  to  get  a  decree  for  specific  performance  of  contract.   The  prohibitory  injunction  sought  by  the  plaintiff is also to be upheld as tampering  with the northern boundary wall is only  with the intention to defeat the legitimate  right of the plaintiff to get the document  executed  on  the  basis  of  Ext.  A1  agreement.  Therefore, both the suits are  to be decreed.  The issues are answered  accordingly.”

6. The above finding of facts was confirmed by the High  

Court in the exercise of its appellate jurisdiction.  Both the  

suits filed have been decreed by a common judgment dated  

31st January, 1984.  The decree was set aside by the High  

Court  vide  its  order  dated  22nd August,  1990  wherein  it  

remanded  the  suit  for  fresh  disposal  after  fixing  the  

boundaries  of  the  property  in  dispute.   The  Trial  Court  

conducted fresh trial  in furtherance to this direction and  

passed a decree afresh vide its judgment dated 24th March,  

1994.

10

The relevant para of Ex. P1 reads as under:

“The first party hereby argues (sic =  agrees)  to  sell  his  full  rights  over  the  property  Sy.  460/3 of  Peringavu Village  and  all  improvements  purchased  and  possessed  by  1st party  under  document  No. 1887 of 1969 and resisted in Paras  283  to  285  of  Book  1  Volume  54  of  Thrissur  Sub  Registrar  office  to  the  Second party will and any encumbrance  for a price of Rs.45,250/-.”

7. The bare reading of this portion shows that something  

in addition to the bare land was intended to be sold.  The  

description of the entire property has been given in Ext.B1.  

In other words, 5 cents and complete description of Ext. B1  

was the subject matter of the sale in terms of Ext.A1.  This  

aspect of the case stands fully clarified and Ext.A1 has been  

completely  clarified  with  certainty  by  the  report  of  the  

Commissioner, which was relied upon by the trial Court.  In  

face  of  the  matters  being  beyond  ambiguity,  there  is  no  

occasion for this Court to interfere with this finding of fact.  

Furthermore,  the  question  of  rectification  in  terms  of  

Section 26 of the Act would, thus, not arise.  The provisions  

of Section 26 of the Act would be attracted in limited cases.  

11

The  provisions  of  this  Section  do  not  have  a  general  

application.  These provisions can be attracted in the cases  

only  where  the  ingredients  stated  in  the  Section  are  

satisfied. The relief of rectification can be claimed where it is  

through fraud or a mutual mistake of the parties that real  

intention of the parties is not expressed in relation to an  

instrument.  Even then the party claiming will have to make  

specific pleadings and claim an issue in that behalf.

8. The  Learned  Counsel  appearing  for  the  appellant  

placed reliance on the case of  Puram Ram v.  Bhaguram,  

[(2008) 4 SCC 102] and contended that since no relief for  

rectification  has  been  prayed,  the  decree  for  specific  

performance ought not to be granted.  This submission is  

based upon the misreading of the judgment of this Court.  

All that has been stated in the judgment is that Section 26  

(4) of the Act only says that no relief for the rectification of  

an  instrument  shall  be  granted  to  any  party  under  this  

section unless it  has been specifically claimed.  However,  

proviso to Section 26 (4) of the Act makes it clear that when  

12

such a relief has not been claimed by the concerned parties,  

the Court shall, at any stage of the proceedings allow him to  

amend the pleadings on such terms,  as may be just,  for  

including such a claim and it would be necessary for the  

party  to  file  a  separate  suit.   The  legislative  intent  in  

incorporating this provision, therefore, is unambiguous and  

clear.   The  purpose  is  not  to  generate  multiplicity  of  

litigation but to decide all issues in relation thereto in the  

same suit provided the provisions of Section 26 of the Act  

are attracted in the facts of a given case. We have already  

stated that the provisions of Section 26 of the Act are not  

attracted  in  the  facts  and  circumstances  of  the  present  

case.   On  the  contrary,  the  respondent  had  specifically  

taken up the  plea  that  Ext.  A1 and B1 relate  to  sale  of  

specific  property  and  there  was  no  ambiguity  or  mutual  

mistake.  The Courts have returned a concurrent finding in  

favour of the respondent and we see no reason to disturb  

the said finding.  The High Court has specifically noticed  

that perusal of Ext. B1 shows that the eastern boundary is  

the  property  owned  by  one  Kuttappan  Master  and  the  

13

northern boundary is shown as rest of the property as old  

one.  There is no controversy in the appreciation of evidence  

and the Courts have recorded the concurrent finding on the  

basis  of  evidence  documentary  and  oral,  adduced  before  

them and have taken a view which is permissible and in  

accordance with law.  The contention of law raised before us  

on behalf  of  the appellant,  in any case,  has no merit  as  

aforestated.   

9. For the reasons afore recorded, we see no merit in the  

present appeals and same are dismissed.  While declining to  

interfere  in  the  concurrent  judgment  of  the  courts,  we  

dismiss these appeals.  The parties are, however, left to bear  

their own costs.

                                                        ........................................J.

[ DR. B.S. CHAUHAN ]

.................................... ....J.

     [ SWATANTER KUMAR ]

New Delhi July 8,  2010.

14