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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 2178-2179  OF 2004

Joseph John Peter Sandy                                                    …Appellant

Versus

Veronica Thomas Rajkumar & Anr.                                  …Respondents

With

CIVIL APPEAL NOs. 2184-2185  OF 2004

J U D G M E N T   

Dr. B. S. CHAUHAN, J.

1.   These  appeals  have  been  preferred  against  the  impugned  

judgment and decree dated 16.7.2003 passed by the High Court  of  

Madras in A.S. No. 1104 of 1987 and Transferred A.S. No. 1120 of

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2001, wherein it  has set aside the judgment and decree of the trial  

court which had decreed the suit of the appellant and dismissed the  

suit of the respondent No.1.  

2. The facts and circumstances giving rise to these appeals are:

A. The contesting parties are the son and the daughter of late B.P.  

Sandy.  Though late B.P. Sandy had several children, considering his  

old age, he decided to transfer/settle his two houses bearing nos.22  

and  23,  Peria  Palli  Street,  Raja  Annamalai  Puram,  Chennai-28  in  

favour of his youngest son and daughter (the contesting parties herein)  

respectively.  Therefore,  the  father  of  the  parties  executed  two  

registered settlement  deeds on 27.8.1981 bearing nos.  1690/81 and  

1691/81  at   the  office  of  Sub-Registrar,  Mylapore,  Chennai,  

transferring House No. 23 in the name of his daughter (Respondent  

No. 1) and House No. 22 in the name of his son (Appellant).  

B. It is alleged by the appellant that the father of the parties had  

only at a later point of time realised that the House No. 23 which was  

given to the daughter, ought to have been given to him and House No.  

22 to the daughter.  Thus, the parties to give effect to the real intention  

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of their father decided to exchange the properties given to them, and  

in furtherance thereof, executed a Agreement Deed to exchange the  

same on 1.6.1982.  The said document was witnessed by Sheila Doss  

and  Mrs.  Mary  Doss,  who  were  neighbours  and  teachers  and  

colleagues  of  the  daughter  –  respondent  no.1.   Since,  the  said  

agreement dated 1.6.1982  (Ex.A-3) had not been given effect to by  

the  respondent  no.1,  the  appellant  filed  O.S.No.  6331  of  1983  on  

12.9.1983 in the court of City Civil Judge, Chennai, for issuance of  

direction  to  the  defendant/respondent  no.1,  to  execute  a  Deed  of  

Rectification  and further  to  restrain  her  from interference  with  the  

appellant’s possession of the suit  property. During the pendency of  

this suit, Shri B.P. Sandy and the appellant executed a Rectification  

Deed (Ex.A-6) on 8.10.1983 by which property in Door No.23 was  

given to the appellant.  The said deed was signed by two witnesses  

Susan Muthu and A.  Bernard.  The respondent  no.1/defendant  filed  

suit O.S. No. 415 of 1984 before the same court for declaration that  

the  agreement  dated  1.6.1982  (Ex.A-3),  an  unregistered  document,  

was null and void, being a forged document, and that she has under  

undue influence  put  her  signature  on the  blank non-judicial  stamp  

papers.   

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C. The trial court decided both the suits together vide judgment  

and decree dated 21.8.1986 by way of which the appellant’s suit was  

decreed and that of respondent no.1 was dismissed.

D. Aggrieved,  the  respondent  no.1  filed  an  appeal  before  the  

learned District Judge, however, it was subsequently transferred to the  

High Court and the High Court has allowed both the appeals filed by  

respondent no.1.

It  may  also  be  pertinent  to  mention  here  that  during  the  

pendency  of  the  appeals,  the  appellant  got  the  Trial  Court  decree  

executed through the court and subsequently sold the property no.23  

to the respondent no.2.

Hence, these appeals.  

3. Shri R. Balasubramanian, learned senior counsel appearing for  

the appellant,  has submitted that the High Court has committed an  

error  in  interpreting the statutory provisions of  law and it  was not  

necessary, that the agreement between the parties, tantamount to an  

agreement to sell,  may be a registered document as required under  

Section 17 of the Registration Act or by any provision of the Transfer  

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of Property Act and, therefore, the High Court erred in holding the  

Ex.A-3 was inadmissible and inoperative in law.  Once the document  

(Ex.A-3)  had been admitted  in  the  evidence  without  any objection  

being raised, its contents were bound to be admitted and  relied upon.  

In fact, the said document had been executed by the parties in order to  

give  effect  to  the  real  intention  of  their  father.    Therefore,  the  

question  of  undue  influence  could  not  have  been  inferred.   The  

judgment of the trial court ought not to have been reversed by the  

appellate court.   The parties having jointly taken a loan, an agreement  

was reached between the parties that in consideration for the appellant  

paying the entire loan taken for the marriage and maintenance of the  

respondent no.1, she would transfer the property stood in her name.  

Thus, the appeals deserve to be allowed.

4. Shri Shyam D. Nandan,  learned counsel appearing on behalf of  

the respondent No.1, has submitted that the High Court has rightly  

reversed the judgments and decree of the trial court interpreting and  

applying the statutory provisions in correct perspective.  It was a clear  

cut  case  of  undue  influence.   The  Rectification  Deed  (Ex.A-6)  

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executed by the father  and appellant ought not to have been given  

effect to.

In the instant case, as the respondent no. 1 was not a party to  

the document Ex.A-6, she was not bound by it.  Also, the appellant  

could not have file the suit for rectification of settlement deed– Ex.A-

1, as there was no mistake in the understanding or execution by the  

parties. The father of the parties was neither impleaded, nor examined  

before the trial court, though he was still alive at the time of institution  

of the suit.  Even the appellant failed to examine the witnesses to the  

document Ex.A-3. He examined only Shri A. Bernard, the witness of  

document (Ex.A-6), who had no bearing to the instant case. Thus, the  

appeals lack merit and are liable to be dismissed.  

5. We have considered the rival submissions made by the learned  

counsel for the parties and perused the records.  Before entering into  

merits of the case, it is desirable to examine the legal issues.    

LEGAL ISSUES :

I. Section 26 of Specific Relief Act, 1963:

Section 26 of the Special Relief Act 1963 (hereinafter referred  

to as ‘Act’) provides for rectification of instruments, where through  

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fraud or a mutual mistake of the parties, an instrument in writing does  

not  express  the  real  intention,  then  the  parties  may  apply  for  

rectification. However, clause 4 thereof,  provides that  such a relief  

cannot be granted by the court, unless it is specifically claimed.  

6. In  Subhadra & Ors. v. Thankam,  AIR 2010 SC 3031, this  

Court while deciding upon whether the agreement suffers from any  

ambiguity  and  whether  rectification  is  needed,  held  that  when  the  

description of the entire property has been given and in the  face of the  

matters being beyond ambiguity, 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.  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.  

A similar view has been reiterated by this Court  in State of  

Karnataka & Anr. v. K. K. Mohandas & etc, AIR 2007 SC 2917.

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7. Thus, in view of the above, it can be held that Section 26 of the  

Act  has  a  limited  application,  and  is  applicable  only  where  it  is  

pleaded  and  proved  that  through  fraud  or  mutual  mistake  of  the  

parties, the real intention of the parties is not expressed in relation to  

an instrument.  Such rectification is permissible only by the parties to  

the instrument and by none else.  

II. Undue influence - Section 16 of Contract Act, 1872:

         Section 16 of the Contract Act provides that a contract is said to  

be  induced  by  “undue  influence”  where  the  relations  subsisting  

between the parties are such that one of the parties is in a position to  

dominate  the will  of  the other,  and uses that  position to  obtain an  

unfair advantage over the other.   

8.      In Bishundeo Narain & Anr. v. Seogeni Rai & Jagernath,  

AIR 1951 SC 280, while dealing with the issue, this Court held:

“….in  cases  of  fraud,  ‘undue  influence’  and  coercion, the parties pleading it must set forth full   particulars and the case can only be decided on  the particulars as laid. There can be no departure   from  them  in  evidence.  General  allegations  are   insufficient  even  to  amount  to  an  averment  of   fraud  of  which  any  court  ought  to  take  notice   

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however  strong  the  language  in  which  they  are   couched may be, and the same applies to undue   influence and coercion.”

9. The Privy Council in Poosathurai v. Kannappa Chettiar, AIR  

1920 PC 65, reasoned that it is a mistake to treat undue influence as  

having  been  established  by  a  proof  of  the  relations  of  the  parties  

having  been  such  that  the  one  naturally  relied  upon  the  other  for  

advice and the other was in a position to dominate the will of the first  

in giving it. Up to that point "influence" alone has been made out.  

Such influence may be used wisely,  judiciously and helpfully.  But  

whether by the law of India or the law of England, more than mere  

influence must be proved so as to render influence, in the language of  

the law, 'undue'.

10. In Ladli Prashad Jaiswal v. The Karnal Distillery Co. Ltd.,  

Karnal & Ors, AIR 1963 SC 1279, this Court held:

“The doctrine of ‘undue influence’ under the   common  law  was  evolved  by  the  Courts  in   England  for  granting  protection  against   transactions  procured  by  the  exercise  of   insidious  forms  of  influence  spiritual  and   temporal.  The  doctrine  applies  to  acts  of   bounty  as  well  as  to  other  transactions  in   

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which one party by exercising his position of   dominance obtains an unfair advantage over   another.  The  Indian  enactment  is  founded   substantially on the rules of English common  law. The first  sub-section of S.16 lays down  the principle in general terms. By sub-section   (2) a presumption arises that a person shall   be deemed to be in a position to dominate the   will  of  another  if  the  conditions  set  out   therein  are  fulfilled.  Sub-section  (3)  lays   down the conditions for raising a rebuttable   presumption that a transaction is procured by   the exercise  of  undue influence.  The reason   for the rule in the third sub-section is that a   person who has obtained an advantage over   another  by  dominating  his  will  may  also   remain in a position to suppress the requisite   evidence  in  support  of  the  plea  of  undue   influence.”

11. In Subhash  Chandra  Das  Mushib  v.  Ganga  Prasad  Das  

Mushib & Ors.,  AIR 1967 SC 878, this Court held that the Court  

trying the case of undue influence must consider two things to start  

with, namely, (1) are the relations between the donor and the donee,  

such that the donee is in a position to dominate the Will of the donor,   

and (2) has the donee used that position to obtain an unfair advantage  

over the donor? Upon the determination of these two issues a third  

point emerges, which is that of the onus probandi. If the transaction  

appears to be  unconscionable,  then the burden of proving that  the  

contract was not induced by undue influence lies upon the person who  

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is in a position to dominate the Will of the other. It was further said  

that merely because the parties were nearly related to each other or  

merely  because  the  donor  was  old  or  of  weak  character,  no  

presumption  of  undue  influence  can  arise.  Generally  speaking  the  

relations of solicitor and client, trustee and cestui que trust, spiritual  

adviser and devotee, medical attendant and patient, parent and child  

are those in which such a presumption arises.

12. In Afsar Shaikh & Anr v. Soleman Bibi & Ors, AIR 1976 SC  

163, this Court held:

“The law as to undue influence in the case of   a gift inter vivos is the same as in the case of   a  contract.  Sub-section  (3)  of  Section  16   contains a rule of evidence. According to this   rule,  if  a  person  seeking  to  avoid  a   transaction on the ground of undue influence   proves-

(a)  that  the  party  who  had  obtained  the   benefit was, at the material time, in a position   to dominate the will  of the other conferring   the benefit, and

(b) that the transaction is unconscionable,

the burden shifts  on the party  benefiting by   the  transaction  to  show  that  it  was  not   induced by undue influence. If either of these   two conditions is not established the burden   will not shift. As shall be discussed presently,   

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in the instant case the first condition had not   been  established;  and  consequently,  the   burden  never  shifted  on  the  defendant.  The   Privy Council in Raghunath Prasad v. Sarju  Prasad,   (AIR 1924 PC 60) expounded three   stages  for consideration of  a case of  undue   influence.  It  was  pointed  out  that  the  first   thing to be considered is, whether the plaintiff   or the party seeking relief on the ground of   undue influence has proved that the relations   between  the  parties  to  each  other  are  such   that one is in a position to dominate the will   of the other. Upto this point, 'influence' alone   has  been  made  out.  Once  that  position  is   substantiated,  the  second  stage  has  been   reached  -  namely,  the  issue  whether  the   transaction  has  been  induced  by  undue   influence. That is to say, it is not sufficient for   the person seeking the relief to show that the   relations of  the parties  have been such that   the  one  naturally  relied  upon  the  other  for   advice,  and  the  other  was  in  a  position  to   dominate  the  will  of  the  first  in  giving  it.   Upon  a  determination  of  the  issue  at  the   second stage, a third point emerges, which is   of  the  onus  probandi.  If  the  transaction  appears  to  be  unconscionable,  then  the  burden of proving that it was not induced by   undue influence is to lie upon the person who   was in a position to dominate the will of the   other.  Error  is  almost  sure  to  arise  if  the   order of these propositions be changed. The   unconscionableness of the bargain is not the   first thing to be considered. The first thing to   be considered is  the relation of  the parties.   Were they such as to put one in a position to   dominate the will of the other"  

                                            (Emphasis added)

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13. If  there  are  facts  on  the  record  to  justify  the  inference  of  

undue  influence,  the  omission  to  make  an  allegation  of  undue  

influence specifically, is not fatal to the plaintiff being entitled to  

relief on that ground; all that the Court has to see is that there is no  

surprise  to  the  defendant.  In  Hari  Singh v.  Kanhaiya  Lal,  AIR  

1999 SC 3325, it was held that mere lack of details in the pleadings  

cannot  be a ground to reject  a  case  for  the reason that  it  can be  

supplemented through evidence by the parties.  

III. ADMISSIBILITY OF A DOCUMENT:

14. In State of Bihar & Ors. v. Radha Krishna Singh & Ors.,  

AIR 1983 SC 684, this Court held as under:

“Admissibility of a document is one thing and   its probative value quite another - these two   aspects cannot be combined. A document may   be  admissible  and  yet  may  not  carry  any   conviction and weight of its probative value   may be nil....

Where  a  report  is  given  by  a  responsible   officer,  which  is  based  on  evidence  of   witnesses and documents and has "a statutory   flavour in that  it  is  given not merely  by an   administrative officer but under the authority   of a Statute, its probative value would indeed   

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be  very  high  so  as  to  be  entitled  to  great   weight.

The  probative  value  of  documents  which,   however ancient they may be, do not disclose   sources  of  their  information  or  have  not   achieved  sufficient  notoriety  is  precious   little.”

15. Reiterating the above proposition in Madan Mohan Singh &  

Ors v. Rajni Kant & Anr, AIR 2010 SC 2933, this Court held that  

a document may be admissible, but as to whether the entry contained  

therein has any probative value may still be required to be examined  

in  the  facts  and circumstances  of  a  particular  case.   (See  Also  :  

H.Siddiqui (dead) by Lrs. v. A.Ramalingam AIR 2011 SC 1492;  

Laxmibai (dead) thr. Lrs.  & Anr v. Bhagwantbuva (dead) thr  

Lrs. & Ors, JT 2013(2) SC 362 )

IV. ONUS OF PROOF:

16. In  Thiruvengada  Pillai  v.  Navaneethammal  &  Anr,  AIR  

2008  SC  1541,  this  Court  held  that  when  the  execution  of  an  

unregistered document put  forth by the plaintiff  was denied by the  

defendants, the ruling that it was for the defendants to establish that  

the document was forged or concocted is not a sound proposition. The  

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first appellate Court proceeded on the basis that it is for the party who  

asserts something to prove that thing; and as the defendants alleged  

that the agreement was forged, it was for them to prove it. But the first  

appellate Court lost sight of the fact that the party who propounds the  

document will have to prove it. It was the plaintiff who had come to  

Court alleging that the first defendant had executed an agreement of  

sale in his favour. The defendant having denied it, the burden was on  

the plaintiff to prove that the defendant had executed the agreement  

and not on the defendant to prove the negative.  

17. In K. Laxmanan v. Thekkayil Padmini & Ors., AIR 2009 SC  

951,  this  Court  held  that  when  there  are  suspicious  circumstances  

regarding the execution of the Will, the onus is also on the propounder  

to explain them to the satisfaction of the Court and only when such  

responsibility  is  discharged,  the  Court  would  accept  the  Will  as  

genuine. Even where there are no such pleas, but circumstances give  

rise to doubt, it is on the propounder to satisfy the conscience of the  

Court. Suspicious circumstances arise due to several reasons such as  

with  regard  to  genuineness  of  the  signature  of  the  testator,  the  

conditions of  the testator's  mind,  the dispositions made in the Will  

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being  unnatural,  improbable  or  unfair  or  there  might  be  other  

indications in the Will to show that the testator's mind was not free. In  

such  a  case,  the  Court  would  naturally  expect  that  all  legitimate  

suspicion  should  be  completely  removed  before  the  document  is  

accepted as the last Will of the testator.

18. In  Krishna  Mohan  Kul  @  Nani  Charan  Kul  &  Anr.  v.  

Pratima Maity & Ors. AIR 2003 SC 4351, it was held that when  

fraud, mis-representation or undue influence is alleged by a party in a  

suit,  normally,  the  burden  is  on  him  to  prove  such  fraud,  undue  

influence or misrepresentation. But, when a person is in a fiduciary  

relationship  with  another  and  the  latter  is  in  a  position  of  active  

confidence  the  burden  of  proving  the  absence  of  fraud,  

misrepresentation  or  undue  influence  is  upon  the  person  in  the  

dominating position, he has to prove that there was fair play in the  

transaction and that the apparent is the real, in other words that the  

transaction is genuine and bona fide. In such a case the burden of  

proving the good faith of the transaction is thrown upon the dominant  

party,  that  is  to  say,  the  party  who  is  in  a  position  of  active  

confidence.  

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19. The instant case is required to be exercised in the light of the  

aforesaid settled proposition of law.

20. There is no dispute that by the settlement deed dated 27.8.1981,  

late Shri B.P. Sandy had given House No. 23 admeasuring 2413 Sq.  

Ft. to the daughter – respondent no.1 and House No. 22 admeasuring  

730 Sq. Ft.  to the son – appellant.  None of the attesting witnesses to  

these  documents  had  been  examined  by  either  of  the  parties,  to  

ascertain whether late B.P. Sandy, father of the parties, had expressed  

any intention in respect of the properties before them.   Ex.A-6 dated  

28.10.1983 a unregistered document is subsequent to Exs.A1 & A2,  

by which the father had expressed his will that House No. 23 should  

be given to the son – appellant.  The appellant has examined one of  

the attesting witnesses Shri A. Bernard but the High Court came to the  

right conclusion that as the respondent no.1 was not a party to the  

document, it has no effect, whatsoever in law, on the case. Thus, in  

such a fact-situation, it  remains to be seen as what is the effect of  

document  dated 1.6.1982 Ex.A-3,  the Memorandum of Agreement,  

and as  to  whether it  had been obtained by the appellant  by undue  

influence.   In  the  document,  it  is  stated  that  mistakes,  in  the  

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settlement deed made by their father, having been discovered only in  

the last week of May 1982, the parties, have decided to  rectify the  

error and for that purpose, they would execute and register necessary  

documents  to  rectify the  mistake.  The  intention  behind  such  

rectification being, to make the appellant entitled to House No.23 and  

respondent No.1 to  House No. 22.  

21. Before the trial court, only the parties and Shri A. Bernard, the  

attesting witness to the Deed (Ex.A-6), were examined. The appellant  

also did not examine his father who was alive till 26.12.1983.  The  

appellant could have taken resort to the provisions under Order XVIII  

Rule 16 of the Code of Civil Procedure, 1908, to examine this witness  

immediately.  The examination of Shri A. Bernard, (PW-2) as to the  

genuineness of  Ex.A-6 was a futile exercise, as the said document  

could not have any bearing on the decision of the case.   

22. The trial court had reasoned that, even though the appellant did  

not  examine the  attesting  witness  of   Ex.A-3,  the  defendant  could  

have  done  it  and  prove  the  allegations  she  had  made  against  her  

brother – appellant, and thus in the process had wrongly shifted the  

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burden of proof.  The Court, further held that it was the appellant who  

had wanted to get Ex.A-3 executed, thus, onus to prove was on him,  

had  he  discharged  the  same,  only  then  it  could  be  shifted  to  the  

respondent no.1/defendant.   

23. The court further held that as the respondent was an educated  

woman and was serving as a teacher, her allegation of undue influence  

to sign on blank non-judicial stamp papers, cannot be relied upon and,  

thereby  concluded  that  Ex.A-3  was  a  document  executed  by  her  

voluntarily and by free will and, hence, it was binding on her and it  

was not permissible for her to say that it was a forged document.   

The  learned trial  court  had also  taken note  of  a  letter  dated  

19.7.1983 (Ex.B-3) written by the father of the parties to respondent  

no.1  in  which  it  was  stated  that  he  had given  her  House  No.  23.  

However,  the  said  letter  was  simply  brushed  aside  by  the  court  

without giving any reason whatsoever.

24. The High Court while dealing with the above issues, came to  

the  conclusion  that  Ex.A-6  was  totally  incongruous  to  the  natural  

human conduct and if the settlor i.e. the father of the parties, had so  

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intended to rectify the mistake, he could have very well registered the  

rectification deed.  The court further held that once the Trial Court  

came to the conclusion that Ex.A-6 was not worth of acceptance, it  

was not permissible for it to grant an equitable relief of rectification of  

deed.  After relying upon a large number of judgments of this Court,  

the High Court further came to the conclusion that it was a case of  

undue influence and as on the date of executing the alleged document  

Ex.A-3, the respondent no.1 was unmarried and was dependent on her  

father and brother for settling her marriage and for sustenance, as her  

marriage  was  solemnised  only  on  1.6.1983.   The  respondent  no.1  

having contended that the plaintiff was in a position to dominate her  

will, thus, the document Ex.A-3 was termed as an unconscionable.  It  

was a case, wherein, after obtaining the signatures of the respondent  

no. 1 on some papers, the document had been scribed.  With respect to  

the document,  the High Court  held that  the said document  Ex.A-3  

being a  typed document,  ought to  have contained the name of  the  

person who had scribed it.  It further reasoned that the language used  

therein suggests that it was drafted by an expert in the field and thus,  

the  whole  document  is  clouded  with  suspicion  and  unexplained  

circumstances.   

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25. The High Court further held that Ex.A-3 being an unregistered  

document, could not have been relied upon and it had wrongly been  

admitted.   In our opinion,  such a view may not be legally correct.  

However, reversal  of the said finding would not tilt  the balance in  

favour of the appellant.    

26. In view of the law referred to hereinabove, it is crystal clear that  

even though the document may be admissible, still its contents have  

to be proved and in the instant case, as the appellant did not examine  

either the attesting witnesses of the document, nor proved its contents,  

no fault can be found with the judgment impugned before us.   Section  

26 of the Act, provides for rectification of a document if the parties  

feel that they have committed any mistake.   Also,  it  was only, the  

father of the parties who could have sought rectification of the deed.  

Mere rectification by parties herein does not take the case within the  

ambit  of  Section  26  of  the  Act.   Taking  note  of  the  statutory  

provisions of Section 16 of the Contract Act and the parameters laid  

down by this Court for application of doctrine on undue influence, the  

High Court has reached a correct conclusion.   

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27. In  view of  the  above,  we reached  the  following inescapable  

conclusions:

i) Neither  of  the  party  has  examined  the  attesting  witness  to  

document  Ex.A-3.   As  such  a  witness  could  have  explained  the  

conduct  of  the  parties  and  deposed  as  to  who  had  prepared  the  

document Ex.A-3. ii) It is evident from the language of the deed (Ex.A-3) that it has  

been prepared either by a lawyer or a deed writer. iii) The said document (Ex.A-3) does not bear either the signature,  

or the address of the scribe. The appellant has also not examined the  

scribe, nor has he disclosed who such person was. This would have  

revealed the correct position with respect to whether the respondent  

no.1 had signed blank papers, or whether she had come to him for the  

execution of the document with the attesting witnesses and appellant.  

Additionally, the scribe could have explained who had bought the non  

judicial stamp paper for the document Ex. A-3. iv) The consideration for executing document (Ex.A-3) seems to be  

the redemption of the property mortgaged jointly by both the parties,  

to one Advocate Krishnaswamy, with whom the deeds of title Ex.A1  

and Ex.A2 had been kept as security. The said mortgagee has not been  

examined by the appellant to show as to whether the respondent No.1  

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was also a party to the mortgage and who had placed the title deed of  

her property with him.  v) In  his  examination-in-chief,  the  appellant  had  made  a  false  

statement that he was not made aware of the settlement deed Ex.A-1  

till 26th June of 1982, as it was given to him by his mother on that date  

before her death.  Such  a statement stands completely falsified, as the  

document Ex.A-1 reveals, that he had been put in possession by his  

father,  with the permission of respondent No.1 ,  as the property in  

Door No.23 had been given to her  and it  was  made clear  that  the  

respondent No .1 had absolute right of enjoyment to the said property. vi) Document  Ex.  B3  dated  29th July  1983  is  subsequent  to  

document  Ex.A-6,  wherein  settlor  Mr.  Sandy  had  written  to  

respondent  No.1 that  he had given Door  No.23 to  her.   Thus,  the  

settlor never intended otherwise. vii) The document Ex.A3 shows that the mistake was discovered in  

the last  week of  May 1982.  So it  was  agreed to  rectify  the error,  

therefore  the  parties  undertook  the  same  as  a  rectification  under  

Section 26 of the Act. In the written statement filed by the appellant,  

in the suit filed by the respondent No.1 , Paragraph no. 7 & 9 refers to  

the mistake and also, the rectification.  Thus, the document Ex.A-3  

cannot be read as an “agreement to exchange.” It can be read only as a  

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rectification deed, which could have been done only by the settlor and  

not by the contesting parties. viii) Considering the respective area of the properties bearing nos.22  

and 23, the contract can definitely be held “unconscionable”.  

28. In view of the above,  we are  of  the considered opinion that  

appeals are devoid of any merit. The same are accordingly dismissed.  

No costs.

CIVIL APPEAL NOs. 2184-2185  OF 2004

            These appeals are squarely covered by the aforesaid decision  

in the main matters i.e. C.A No. 2178-2179 of 2004.  The same are,  

accordingly, dismissed.  

…….…………………………………….J. (Dr. B.S. Chauhan)

….……………………………………….J. (Fakkir  Mohamed  Ibrahim  Kalifulla)

New Delhi;   March 12, 2013

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