Rectification of Instruments

Rectification of Instruments

Section 26 of the Specific Relief Act talks about rectification. Let us understand in more clear terms. Rectification’ means correction and here ‘instrument’ means any legal document/contract.

So, rectification of instruments means correction or changes in the contract. Under Section 26 of the Specific Relief Act,1963, it is provided that when any contract may be rectified:

1. When there is a fraud or when there is a mutual mistake by both the parties. Now the person who is entitled for the rectification of instrument are as follows: –

Either party or his representative can file.

The plaintiff in any suit can file if any rights arising under the rectification of instruments.

Defendants can file in any suit as mentioned in sub-clause (B).

2. If in any case in which a contract or instrument is to be rectified under clause (1), the court finds that contract is done by fraud or by mutual mistake of the parties, then the court has discretionary power to rectify it.

3. If parties claim for rectification and the court thinks fit, then it will be specifically enforced.

4. No relief shall be granted until the parties specifically claim for rectification of the instrument.

Modes of Rectification of Instrument

Chapter three of the Specific Relief Act, 1963 deals with the rectification of instruments and Chapter five of the Specific Relief Act, 1963 deals with the cancellation of instruments. Under section 26 of the specific relief act, the modes of rectification of instrument are: –

Fraud 

Whenever someone intentionally misrepresents the other regarding the contract, there is a way of rectification of the instrument. Fraud means, when:

A person suggests a fact which is not true. 

A person hides a fact, which he already knows about.

A person made a promise without any intention of performing it.

Mutual mistake of parties

The term ’mutual mistake’ means the common mistake on the part of both the parties to contract. A party who wants rectification of the instrument has to establish that there was a prior complete agreement that was reduced to writing in accordance with the common intention of the parties and by reason of mistake the writing did not express the real intention of the parties. If the mistake is not from both the parties but from the scribe then it will not be rectified. A mutual mistake can be established by any parties to a contract. On the basis of unilateral mistake not amounting to fraud, there cannot be rectification.

Real Intention of the Party

The rectification of the instrument always involves the real prior agreement between the parties and the absence of such facts in the agreement of the document as a result of fraud or mutual mistake.

The court has also the responsibility to see whether the parties do have a real intention or they are framing the instrument and further the court has to ascertain for the same.

Requirements For Rectification of Instrument Under Section 26

There are certain requirements under Section 26 of the specific relief act.

Existence of fraud or mutual mistake: – for the rectification of instrument, one has the proof regarding the fraud and the mutual mistake. The intention must be truthful which is owing to fraud or common mistake.

    ‘Fraud’ means an act done by any party through a contract to deceive another party to enter into a contract.

   ‘Common mistake’ means when the mistake in any contract or in any deed done by both the parties.

     ‘Real intention of the parties’ means it’s not only the party to prove fraud or mutual mistake but also the court has to find out and further the court has to also ascertain the real intention of the parties. 

The burden of proof lies on the person who wants rectification of the instrument.

Parties To Rectification of Instrument

Either party to a contract or their legal representative in interest can take action for the rectification of the instrument under Section 26. Any other person does not have any right to maintain a suit for its rectification. Proper parties can apply for the same. ‘Proper parties’ are those parties when a case is brought for rectification of sale deed at that time the other parties who are affected by it are called proper parties.

Effect of rectification of Instrument

A deed can only be rectified by the court so as to confirm the true intention of the executing party at the moment of execution. After the execution the written agreement does not continue to exist with a parol variation, it is to be read as if it had been originally drawn in its rectified form. When the court rectifies a deed of transfer it becomes a conveyance and so no further conveyance is required. The order should be declared that the deed ought to be rectified, point out the way in which it should be rectified and direct an endorsement of the order on the conveyance.