SUBHADRA AND ORS. versus THANKAM

Citation: [2010] 8 S.C.R. 299 · Decided: 08-07-2010 · Supreme Court of India · Bench: B.S. CHAUHAN · Disposal: Dismissed

Judgment (excerpt)

(2010]. 8 S0.C:R. 299 
SUBHADRA AND ORS. 
v. 
THANKAM 
(Civil Appeal Nos .. 291'"292 of 2006) 
JULY'S, ·2-010 
[DR. .e:s. CHAUHAN' 'AND :sWATANtER KUMAR, ,JJ.] 
Specific Relief.Act, 1983 - -s.26·--Applicability of - Suit 
A 
B 
for specific performance of agreement: to ·sell -·Decreed -
Decre·e challenge·d -·Ple·a of defendant:that the agreement C 
in question suffered from ambiguity-as regards description of 
the property and hence rectification of the agreement uls. 26 
was a condition precedent for passing·a de·cree'for specific 
performance - Held:. Plea riot tenable - Relief of rectification 
can be claimed where it is through fraud·ora mutualmistake 
D 
of the parties·that real intention of the parties is not expressed 
in relation to an instrument - 'On·facts, ·the· agreement in 
question related to sale of specific property and there was no 
ambiguity or mutual mistake therein. 
The appellant entered into ·an·agreement•to·sell 
property (Ext. 'A1) in :favour of respondent·for·money 
consideration. The respondent paid earnest·money and 
subsequently approached.the appellant with·the·balance 
consideration to get'. the sale deed executed.' However, a 
dispute arose between the· parties with ·regard to the 
correct.extent/ identity of'the pro-perty·agreed to be sold 
E 
F 
by the.appellant in favour of:the·respondent. While the 
appellant. took the stand that only ·5 cents ·of land was 
agreed to be sold to.the·respondent,·the tatter·stated·that 
though the land agreed~to be sotd•was·S cents, but in 
G 
addition.thereto, .the ottler structures as contemplated in 
Ex. e·1 were also to be .sold for consideration. 
The respondent filed suit for specific performance. 
299 
H 
300 
SUPREME COURT REPORTS 
[2010] 8 S.C.R. 
A The trial court decreed the suit. The High Court upheld 
the decree. 
In the instant appeals, it was contended that the 
language of Ext. A1 was ambiguous and uncertain and 
8 
that the respondent ought to have sought rectification of 
the deed in relation to that extent of the property in terms 
of Section 26 of the Specific Relief Act 1963, and since 
no such relief for rectification was prayed by the 
respondent, the decree for specific performance ought 
C not to have been granted. 
Dismissing the appeals, the Court 
HELD: 1.1. The provisions of Section 26 of the 
Specific Relief Act, 1963 would be attracted in limited 
0 
cases and 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 
E parties is not expressed in relation to an instrument. 
Even then the party claiming will have to make specific 
pleadings and claim an issue in that behalf. [Para 7] [308-
D-F] 
1.2. The plea of the appellant that since no relief for 
F 
rectification has been prayed, the decree for specific 
performance ought not to be granted is not tenable. 
Section 26(4) of the Act only says that no relief for the 
rectification of an instrument shall be granted to any party 
under this section unless it has been specifically claimed. 
G However, proviso to Section 26(4) of the Act makes it clear 
that when such a relief has not been claimed by the 
concerned parties, the Court shall, at any stage of the 
proceedings allow him to amend the ple~dings on such 
terms, as may be just, for including such a claim and it 
H would be necessary for the party to file a separate suit. 
SUBHADRA AND ORS. v. THANKAM 
301 
The legislative intent in incorporating this provision, 
A 
therefore, is unambiguous (!nd clear. The purpose is not 
to generate multiplicity of litigation but to decide all 
issues in relation thereto in the same suit provided the 
provisions of Section 26 of the Act are attracted in the 
facts of a given case. [Para 8) [308-G-H; 309-A-C] 
B 
1.3. In the present case, the bare reading of the 
materials on record shows that something in addition to 
the bare land was intended to be sold. The description 
of the entire property has been given in Ext.81. In other C 
words, 5 cents and complete description of Ext. 81 was 
the subject matter of the sale in terms of Ext.A1. This , ' 
aspect of the case stands fully clarified and Ext.A1 has 
been completely clarified with certainty by the report of 
the Commissioner, which was relied upon by the trial 
court. In face of the matters being beyond ambi

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