Case Note & Summary
The appeal arises from a suit for specific performance in the form of rectification of a partition deed and alternative partition, filed by one brother against two others. The plaintiff claimed that the three brothers constituted a joint family and that three sites were acquired with joint funds but registered in the defendant no.1's name. A partition deed dated 28.7.1981 allotted sites among them, but a typographical error recorded the plaintiff's site number wrongly. Defendants refused to rectify, prompting the suit. The trial court decreed the suit for rectification and permanent injunction, dismissing the alternative partition prayer. The first defendant appealed. The High Court earlier dismissed the appeal in 2014, but the Supreme Court remanded the matter for fresh disposal. Upon rehearing, the High Court framed points for consideration: whether the suit for rectification was maintainable without a declaratory relief; whether the plaintiff proved joint family status; whether the properties were joint family properties; and whether the partition as per Ex.P-1 was proved. The arguments of counsel were recorded, and the Court heard the matter and reserved judgment on 5.8.2019. The judgment on these points was to be delivered on 6.9.2019. The provided excerpt does not contain the Court's analysis and decision on these issues.
Headnote
A) Civil Procedure - Rectification of Instrument - Maintainability of Rectification Suit without Declaration - Code of Civil Procedure, 1908, Section 96; Specific Relief Act, 1963, Section 26 - The plaintiff sought rectification of a partition deed to correct a site number error, arguing mutual mistake. The defendant argued that a suit for declaration of title was a prerequisite under Section 26 and that the rectification suit was not maintainable without a declaratory prayer. The Court framed the issue of maintainability for consideration. (Paras 9, 11)
B) Hindu Law - Joint Family Property - Existence of Joint Family - The plaintiff claimed that the three brothers constituted a joint family and that the suit properties were acquired with joint family funds. The defendant denied joint family status, asserting that the properties were self-acquired. The Court framed the issue whether the plaintiff proved the joint family status and that the properties were joint family properties. (Para 11)
C) Law of Evidence - Proof of Partition - Validity of Partition Deed - The plaintiff relied on the registered partition deed (Ex.P-1) and sought rectification of a typographical error. The defendant challenged the deed as concocted, obtained by cheating, and lacking his genuine participation. The Court framed the issue whether the plaintiff proved the partition as per Ex.P-1. (Para 11)
Issue of Consideration
Maintainability of suit for rectification of partition deed without seeking declaratory relief, existence of joint family status among the parties, and whether the suit schedule properties were joint family properties.
Law Points
- specific performance
- rectification of instrument
- joint family property
- partition
- maintainability of suit without declaration
- Section 26 Specific Relief Act
- Section 96 CPC
- limitation
- mutual mistake
- burden of proof
- self-acquired property
- family arrangement
Case Details
2019 LawText (KAR) (09) 27
Dr. Justice H.B. Prabhakara Sastry
Sri R.V. Jayaprakash, Advocate (Appellant); Sri V.F. Kumbar, Advocate (R-1); Sri Kumar M.D., Advocate (R-2)
1. U. Chandrashekar, 2. U. Raya
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Nature of Litigation
Suit for specific performance seeking rectification of partition deed and alternative partition, with permanent injunction, regarding three sites claimed as joint family properties.
Remedy Sought
Rectification of registered partition deed to correct site number from 35 to 25, or alternatively partition and separate possession of 1/3 share, and permanent injunction.
Filing Reason
Defendants refused to execute rectification deed after typographical error in partition deed was discovered, preventing plaintiff from selling his property.
Previous Decisions
Trial Court decreed suit for rectification and injunction, dismissed alternative partition. Appeal by defendant No.1 was dismissed by High Court on 06.06.2014. Supreme Court set aside High Court's order and remanded case for fresh disposal on 04.08.2017.
Issues
Whether the suit for rectification is maintainable without a declaratory relief under Section 26 of Specific Relief Act, 1963
Whether the plaintiff proved existence of joint family among the parties
Whether the suit schedule properties are joint family properties
Whether the plaintiff proved the partition as per Ex.P-1
Submissions/Arguments
Appellant argued that the suit ought to have been filed under Section 26 of Specific Relief Act, 1963 with a declaration of title, and that there existed no joint family; the trial court's finding on joint family was erroneous; Finger Print Expert's opinion was vague; and the suit was barred by limitation.
Respondent argued that the suit for rectification was properly filed because there was a mutual mistake in the partition deed; evidence established joint family; defendant No.1's participation in the deed was proven by his thumb mark; no separate declaratory suit was necessary as the partition deed itself indicated title; and right to sue accrued only in 2004, within limitation.
Judgment Excerpts
the plaintiff ought to have filed the suit under Section 26 of Specific Relief Act, 1963 and should have sought for the relief of declaration of title and as a consequential relief, rectification of Partition Deed ought to have been sought for by him.
the plaintiff has alleged that there was mutual mistake in mentioning site number in the Schedule Item No.2 property, the plaintiff has rightly sought for rectification of the same.
the presence of defendant No.1 in execution of the document is established in view of the thumb mark affixed by him to the document.
This appeal earlier was dismissed by this Court at the stage of admission under the judgment dated 6.6.2014. Challenging the same, the present appellant had preferred Civil Appeal No.9951 of 2017 before the Hon’ble Apex Court. The Hon’ble Supreme Court by its judgment dated 4.8.2017, was pleased to allow the appeal and set aside the impugned judgment and decree ... and remitted the matter for its fresh disposal in accordance with law.
Procedural History
Original suit O.S.No.16950/2004 filed before XXVIII Addl. City Civil Judge, Mayo Hall, Bangalore; trial court decreed suit on 21.06.2010 for rectification and injunction. Appeal RFA No.1626/2010 filed and dismissed by High Court on 06.06.2014. Supreme Court in Civil Appeal No.9951 of 2017 set aside High Court's order and remanded on 04.08.2017. High Court reheard the appeal and reserved judgment on 05.08.2019, delivered on 06.09.2019.
Acts & Sections
- Code of Civil Procedure, 1908: Section 96
- Specific Relief Act, 1963: Section 26
