Rectification of Instruments : Exclusive Notes - 02

Written by HT AL-AMIN KHAN, Student, Department of Land Management and Law, Jagannath University, Dhaka.

 

Introduction

The term ‘Rectification’ means the action putting something rights. Section 31 to 34 of The Specific Relief Act, 1877 Deals with the Rectification of Instruments.

When Instrument may be Rectified

In Section 31 states, a party, or his representative in interest, may institute a suit to have the instrument rectified in the following condition such as –

a)      When such instrument is made through fraud; or
b)      Mutual Mistake of parties;
c)      Such contract or other instrument does not truly express their intention.

Procedure of Court

After instituting a suit for rectified instrument, the court find it clearly proved that –

a)      There has been fraud; or
b)      Mistake in framing instrument; and
c)      Ascertain the real intention of the parties.

Then the court is satisfied that the following condition is presented, and the court may in its discretion rectify the instruments.

Exception

The rectify not affect the right of the third party who had good faith in this instrument.

Judicial Observation

In  Lalbanu Bibi vs. Nourjahan Banu (41 DLR 519) case held that court of equity will reform the precise intention of parties if the real intention is misrepresented by mutual mistake or fraud.

Substantive Principles

  • Presumption as to intent of parties: In Section 32 states that in order to rectify a written contract, the court needs to ensure that all parties involved intended to create a fair and just agreement.
  • Principles of rectification: In section 33 the process of rectifying a written instrument. The Court has the authority to investigate the intended meaning of the instrument and its intended legal consequences, rather than being limited to only considering the language used in the instrument.
  • Specific enforcement of rectified contract: In Section 34 states that a written contract can be corrected by the court and then enforced if the plaintiff has requested it in their legal complaint and the court deems it appropriate. An example is given where a contract between A and their attorney B has mistakes that would exclude B from receiving payment, but if the court rectifies the mistakes, B can receive payment as intended.

Conclusion

If by mistake a written instrument does not accord with the true agreement between the parties, equity has the power to reform or rectify that instrument. Rectification cannot be adjudged unless the court is satisfied.


Reference:

  • B.M. Gandhi, “Rectification, Rescission, Cancellation and Declaration,” Equity, Trust and Specific Relief (Fourth Edition, EBC Publishing (P) Ltd 2020).
  • The Specific Relief Act 1877

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