Assignment: -Contract

Name: - Sandesh Abasaheb Pawar

Division: - C
Roll No: - 242
Class: - FY LLB

Rectification and Declaratory Decree

Rectification of instruments

 A written transaction is called an instrument. Sometimes, an instrument may fail

to express the intention of the involved parties. Rectification of such an
instrument may become necessary. Specific Relief Act, 1963 provides help
towards parties who want to have their documents rectified. It is closely related
with documents mistakenly executed, which are at a later point found to be void
or which become void. These documents ought to be cancelled. However,
Specific Relief Act provides relief from such kinds of documents.
 Rectification of contract means to rectify the contract which is founded on fraud or
mutual or common mistake of the parties. It further means, taking out the mistake
from the instrument of contract and put it right.
 As per section 26 of Specific Relief Act, 1963- When through fraud or a mutual
mistake of the parties, a contract or other instrument does not express their real
intention, then either party or their representatives or the plaintiff or the defendant
may institute the suit to have the instrument rectified.
 In such suits, court may in its discretion direct rectification of instrument if the
court finds that the instrument does not express the real intention of the parties.
 Bathappa v/s. Sanjivan, Mysore L.J- The sale deed of a certain Land sold to B
stated that the land measured 50 square yards. The plaintiff who was a
purchaser of a land sued for a declaration of his title to the land as described in
the sale deed. The defendant contended that, what was intended to be sold was
only 50 square feet and that the mistake was made by the document writer. It
was held that the defendant could resist the suit on the ground of alleged mistake
and could maintain a suit for rectification.
 Articles of association of the Company cannot be rectified, as the same may be
altered by passing of special resolution.
 Further, as per section 26, either plaintiff or defendant or their representatives
may constitute a suit for rectification of the instrument.
 In a suit under section 26, an instrument or contract can be rectified first and then
if the party claiming rectification has so prayed in his pleading and the court
thinks fit, may be specifically enforced.
 The relief of rectification of an instrument shall be granted to the party only when
it is specifically claimed, however, the court may subsequently allow a party to
amend his pleading for including such claims.
 In Raipur Mfg. Co. Ltd. v. Joolaganti Venkatasubba Rao Veerasamy & Co. (AIR
1921 Mad 664), it was held that where in the course of a suit for damages for
breach of contract, the plaintiff contends that if there is a clerical error in the
document embodying the contract, it is not always necessary that a separate suit
should have been brought for rectification of the document and it is open to the
court in a proper case to allow the plaintiff to amend the plaint and ask for the
necessary rectification.
Declaratory Decree

 If any person entitled to any legal character, or to any rights as to any property is
denied by another and if any suit is filed by the person so denied it is called a
declaratory suit. A Declaratory decree is a binding declaration of right in equity
without consequential relief. In simple terms, a declaratory decree is cone which
settles the right and removes the confusion of the status of the party.
 Provision regarding declaratory decree has been provided in sections 34 and 35
of the Specific Relief Act, 1963.
 Essentials of a declaratory suit
- The person filing the suit must be entitled to legal right or any right as to any
property;
- The person against whom the suit is to be filed must actually be denying the
right or is interested in denying the right of the plaintiff;
- Passing a declaratory decree is on the discretion of the court.
 Effect of declaration
- A declaratory decree is binding only on the parties to the suit and upon the
representatives of the parties to the suit. So, declaratory decree is “in
personam” and not “in rem”.
 A declaratory decree resolves the legal uncertainty of the rights and status of the
parties. However, passing of a declaratory decree is a matter of discretion of
court and it cannot be claimed a right.
 Essentials of the relief/ Requisite for a declaratory action
- The plaintiff is at the time of the suit entitle to any legal character or to any
right as to any property. The term legal character means and includes any
right to which a person is entitled. e.g. right to vote.
- The defendant has denied or is interested in denying to the character or title
of the plaintiff. There must be some present danger or determent to his
interest. So that a declaration is necessary to safeguard his right and clear the
mist.
- The denial must be communicated to the plaintiff in order to give him cause of
action
- The declaration asked for is a declaration that the plaintiff is entitled a legal
character or to a right to property.
- The plaintiff is not in a position to claim further relief than a bare declaration of
his title. A person who is able to seek for further relief, should not be allowed
mere declaratory relief, if he omits to do so.
- A declaratory decree cannot be obtained as a matter of absolute right. The
court has a discretion to grant it or not. The discretionary power to grant
declaratory decree, should be exercised to put an end to dispute which have
lasted for considerable time: (Indra Kumar v/s. Baldeo, 39 M.L.J.
 Illustration: A is in possession of certain property. B alleging that he is the owner
of the property requires A to deliver it to him. A may obtain a declaration of his
right to whole the property.