Mistake in Boundary or Survey Number will not Invalidate a Document; Insignificant Errors in Plaint will not Disentitle a Decree

Saji Koduvath, Advocate, Kottayam

Abstract

1. If the property is clearly identifiable, insignificant errors in its description in pleadings are not fatal. The court can act upon such correct identification without requiring a formal amendment to the pleadings or the decree.

  • Chandrakumar v. Narayana Bahuleyan, ILR 2011-2 Ker 897; 2011-2 KHC 884; 2011-3 KLT 185 (the plaintiffs may not be non-suited, for no explanation as to a larger extent).
  • Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd. , AIR 2008 SC 225; 2007-13 SCC 421 (in the Schedule of the Property, certain blank spaces have been left for the insertion of the plot numbers maintained in the Village records).
  • Mohammed Munvar v. N.C. Nesan, 21 Mar 2024, 2024 Supreme(Mad) 613 (east and west boundaries interchanged).
  • Guda Sanjeeva Reddy v. Kodathala Sujatamma, 2006-4 ALT 636; 2006-4 CivCC 452; 2007-5 RCR(Civ) 271 (name of the Village was wrongly described in the plaint).

2. An insignificant error in the plaint, even repeated in the decree, can be corrected by the court, invoking section 152 CPC.

  • Rahulghani v. Uma Shenkar, A.I.R. 1944 Oudh 5, (clerical error: ‘west’ for ‘east’)
  • Satyanarayana v. Purnayya, 1931 Mad 260 (wrong survey number)
  • J. Sarojini Alias Nesamma v. Narayani Sarojini, 2008-1 ILR(Ker) 153; 2008-1 KHC 897; 2008-1 KLT 516 (mistake in survey number).
  • Deo Kumar Sah v. Mahesh Pd. Rai, 2004-3 BBCJ 175; 2004-3 PLJR 354 (mistake in plot number and area).
  • Mohinder Singh v. Teja Singh, AIR 1979 P & H 47, (incorrect plot number and area)
  • Pratibha Singh v. Shanti Devi Prasad, (2003)2 SCC 330 (mistake in survey number)
  • Easwari Amma Prsannakumari v. Radhakrishna Pillai, 2015 (5) KerHC 922 (a survey number was omitted, and the length of the way was incorrect).

3. A mere mistake occurred in the compromise petition Can Be Corrected In Decree

  • M. K. Soumini v. M. K. Sreedharen, 10 Jan 2017, 2017 Supreme(Ker) 173,

4. Mistakes in decree arose from the erroneous plaint Can also Be Corrected In Decree

  • J. Sarojini Alias Nesamma v. Narayani Sarojini, 2008-1 ILR(Ker) 153; 2008-1 KHC 897; 2008-1 KLT 516 (mistake in survey number),
  • Subramanian Iyer v. Joseph George, 1959 K.L.T. 165 (boundaries of the schedule wrongly described; decree corrected).

5. Even Incidental Errors Anterior To Decree (Original Document), Can Be Corrected In Decree

  • Abdhu v. Assainar (1993 [2] KLT 711)
  • Raman Nadar Velayudhan Nadar v. Janaki Karthi (2011 [2] KLT 149)

6. Court Orders – Technical Defects will not defeat Substantive Rights

  • Kailash v. Nanhku, (2005) 4 SCC 480.
  • Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46).
  • State of Punjab v. Shamlal Murari, (1976) 1 SCC 719.
  • Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774,
  • Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425,

7. Non-mentioning of survey number is not a ground to reject the application of Petrol Pump.

  • Rajesh Parmar v. Under Secretary, Petroleum Corporation, MANU/MP/0121/2019)
  • Indian Oil Corporation Limited v.  Gosala Raju, AIR 2022 AP (NOC) 260.

8. “Falsa Demonstratio Non Nocet”  (Adequate and sufficient description with convenient certainty of what was meant to pass): an erroneous addition to the description will not vitiate it.

  • Umrao Bapu v. Ramakrishna Bapu, AIR1938 Nag. 93,
  • Durga Prased Singh v. Rajendra Narain Bagchi (1910) 37 Cal. 293,
  • Savarimuthu Nadar Chellayan Nadar v. Kanakku Kali Pillai Padmanabha Pillai, 1957 KHC 184

9. General principle – boundary descriptions shall prevail

  • Subhaga v. Shoba, 2006-5 SCC 466
  • T. Venkata Vijaya Lakshmi v. Kodali Rayana Rao, 2023-4 ALT 272; 2023-3 CivCC 746
  • Vishnu Anant Dessai v. Govind Vithal Sawant, 2020-5 All MR 496 (Bom);
  • Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959

10.Boundary descriptions – Vague and Uncertain Description Rejected & Definite and Certain Preferred.

  • Chandrakumar v. Narayana Bahuleyan, ILR 2011-2 Ker 897; 2011-2 KHC 884; 2011-3 KLT 185
  • Sivaraman Nair v. Shamsuddin, 1990 (1) KerLT 187: 1990 KHC 295
  • Savithri Ammal v. Padmavathy, 1990 KHC 295,

11. No Stamp Duty for Rectification Deed

  • P. Sasikumar v. State Of Kerala, 2024-4 KLT 864,
  • Jihas P.A. v. District Registrar, 2012 (3) KHC 146)
  • Rajesh Kumar K.T. v. State of Kerala, 2024 (3) KHC 425

12. Error will not necessarily invalidate a document – Not Applied

  • Kamalamma v. Shibu, 2024-3 KerHC 547.
  • Savarimuthu Nadar Chellayan Nadar v. Kanakku Kali Pillai Padmanabha Pillai, 1957 KHC 184,

13. Execution of ‘Rectification Deed’

  • Rajesh Kumar KT  v. State of Kerala, 2024-3 KHC 425,
  • Vannathi Valatpil Mahmood v. State of Kerala, 2019 (2) KHC 736 (change in the description of the property)
  • Jihas v. District Registrar, 2012 (3) KLT 194 (mistake in mentioning flat number in the sale deed).

14. Wrong description in Will. Legal heirs can execute a rectification

  • Baburaj P.K v. State of Kerala, 2019 (2) KHC 628.

15. Clerical or Arithmetical Errors in the plaint and Final Decrees can be Rectified

  • Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR 1974 AP 201,

16, When instrument may be rectified

  • Section 26 of Sp. Relief Act

17. Suit for Rectification of Deed – When Needed?

  • Aliyar v. Raju V. Vayalat, 2016-1 KHC 763; 2016-2 KLT 656.

18. Intention of the Parties to prevail when conflict between area and boundaries

  • Krishnamoorthi Iyer v. Janaki Amma, 1957 KHC 202 : 1957 KLT 886,
  • Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959)
  • The Church of South India Trust Association v. Raja Ambrose, 1978- 2 MLJ 620.

19. No “suppression”, if the facts are (i) Not Material and  (ii) “Known” to the opposite side.

  • Avtar Singh v. Union of India, 2016-8 SCC 471, (in a case of information given to the employer by a candidate).

Part I: Insignificant Mistakes in Proceedings in Suits

Order VII Rule 3 of C.P.C, hereunder:

  • “3. Where the subject-matter of the suit is immovable property—Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.”

Insignificant mistakes in pleadings (plaint or written statement) do not necessarily require formal amendment before judgment or decree, especially when they do not prejudice the other side. That is, the amendment may not be insisted upon by the court before Judgment or Decree.

If Property Identifiable, Plaintiff Not to be Non-suited on Disparity in Extent

In Chandrakumar v. Narayana Bahuleyan, ILR 2011-2 Ker 897; 2011-2 KHC 884; 2011-3 KLT 185, it is held as under:

  • “17. …. The description of boundaries are certain, identifiable and capable of fixing the boundary without any dispute. In such circumstances, the extent as such may not be so important. That there is difference in the extent as shown in the title deed and as found in the resurvey is not very material in fixing the boundary between the property of the plaintiffs and the property of the defendant.
  • 18. …. The southern boundary could be easily identified and it was so done by the Commissioner. Simply because the plaintiffs did not explain as to how they came into possession of a larger extent than that shown in the title deed, I do not think they must be non suited.”

If parties went to trial, identifying property – Mistake can be Ignored

In Guda Sanjeeva Reddy v. Kodathala Sujatamma, 2006-4 ALT 636; 2006-4 CivCC 452; 2007-5 RCR(Civ) 271, it is held as under:

  • “5. As stated above, since the parties went to trial knowing that the property is situated at Buchireddypalem Village and Mandai and since the suit is decreed, respondent is entitled to recover the plaint schedule property. So merely on the ground that the name of the Village was wrongly described in the plaint in the initial stage, revision petitioner cannot be heard to say that the decree is un-executable.”

If Property Identifiable, Small Mistake will not Disentitle Decree

In Beohar Rajendra Sinha v. State of M.P., AIR 1969 SC 1256, 1969(3) SCR 955, our Supreme Court held as under:

  • “Any unimportant error or defect (two persons had given notice under Section 80 of the Code of Civil Procedure, only one person filed the suit) cannot be permitted to be treated as an excuse for defeating a just claim. 

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Ss. 99, 152 and 153 CPC: Unimportant Error – Not be Stretched Too Far

The Civil Procedure Code makes it clear that an error or irregularity that does not affect the merits of the case or the jurisdiction of the court is not material so as to warrant dismissal. It embodies the settled policy of our law that mistakes in any proceedings in the suit, which cause no prejudice, should not defeat substantive justice.

  • “99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
    • Provided that nothing in this section shall apply to non-joinder of a necessary party.”
  • “152. Amendment of judgments, decrees or orders.: Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.”
  • “153. General power to amend. The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
  • Order VI Rule 17, CPC
  • “Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
    Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

Mistake in deed carried forward in plaint, repeated in decree: Can be Cured u/S. 152

In Subramania Iyer v. Joseph George, 1959 KLT 165, it was held (following Abdhu v. Assainar, 1993 -2 KLT 711) that a decree could be corrected, by exercise of jurisdiction under Section 152 of the CPC, even in a case where the error or mistake occurred even anterior to the suit, namely in the instrument or the document based on which the suit has been filed, and which has been carried forward into the plaint and repeated in the decree. In the said decision the Court has taken note of the views expressed in

  • Satyanarayana v. Purnayya (1931 Mad 260,
  • Ramakrishnan v. Radhakrishnan (AIR 1948 Madras 13),
  • Katamaraju v. Paripurnannadam (AIR 1949 Mad. 282) and
  • Krishna Poduval v. Lekshmi Nathiar (AIR 1950 Madras 751).

“Any error, defect or irregularity” in Sec. 99 CPC

In Kailash Singh v. Hiralal Dey, AIR 1994 Gau. 12, it was held that the expression “any error, defect or irregularity in any proceeding in the suit” in Sec. 99 includes the signing and verification of the plaint. (also: Ramesh B. Nyamagowdar v. Hosamani Major, AIR 2021 Kar 47; P.J. Joseph v. Suhara Beevi Hussain AIR 2000 Ker 60; Vippanapally Radha v. Brindavan Educational Society, 2012 2 AndhLD 487; K. Santhanam v. S. Kavitha, 2011-1 CTC 286; 2011-1 LW 66; 2011-3 MLJ 34).

In Gold Medal v. Ameena Begum, 2004 (5) AndLT 542, it is held that the defect of the institution of the suit through a power of attorney is only a curable irregularity in view of Section 99 of the Code of Civil Procedure and definitely does not touch the jurisdiction of the Court.

It is held by the Himachal Pradesh High Court (AIR 1957 HP 16) that irregularity in signing Vakalathnama is only a formal defect. (See also AIR 1924 Patna 114)

The omission to explain the non-production of a document before tendering secondary evidence is only a mere irregularity. (59 IC 461).

Section 151, CPC can also be Invoked for correcting a Decree

In Raman Nadar Velayudhan Nadar v. Janaki Karthi, 2011-2 KLT 149, it was held that a decree could be corrected not only under Section 152 of the Code of Civil Procedure, but even the inherent powers under Section 151 of the CPC could be invoked in an appropriate case.

In Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd., AIR 2008 SC 225; 2007-13 SCC 421, an application under Section 151 of CPC was filed to insert certain plot numbers in the plaint and the extent of property.  Following Pratibha Singh v. Shanti Devi Prasad, AIR 2003 SC 643: (2003)2 SCC 330, it is held as under:

  • “It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and not in a pedantic manner. …. The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit of the decree. …. We, therefore, are of the opinion that only because the JL numbers (‘jurisdiction list’ numbers in the Village) in the schedule was missing, the same by itself would not be a ground to interfere with the impugned order.”

Procedural defects and irregularities – Curable

Our Apex Court held in Uday Shanker Triyar Vs. Ram Kalewar Prasad Singh, 2006-1 SCC 75, that filing an appeal without a vakalatnama or other authority was a curable defect. It is observed in Para 16 and 17 as under:

  •  “16. An analogous provision is to be found in Order VI, Rule 14, CPC, which requires that every pleading shall be signed by the party and his pleader, if any. Here again, it has always been recognised that if a plaint is not signed by the plaintiff or his duly authorised agent due to any bona fide error, the defect can be permitted to be rectified either by the Trial Court at any time before judgment, or even by the Appellate Court by permitting appropriate amendment, when such defect comes to its notice during hearing.      
    17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognised exceptions to this principle are:
           (i) where the statute prescribing the procedure, also prescribes specifically the consequence of noncompliance;
           (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
           (iii) where the non-compliance or violation is proved to be deliberate or mischievous;
           (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court;
           (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.”

Quoting the afore-stated passage from Uday Shanker Triyar v. Ram Kalewar Prasad Singh, the Madras High Court observed in K.  Santhanam v. S. Kavitha: 2011-1 CTC 286; 2011-1 LW 66; 2011-3 MLJ 34, that non-compliance with the Civil Rules of Practice (Rule 22 and 23) is a curable defect and an error of procedure is merely an irregularity; that it cannot result in rejection of the suit; and that even without a power of attorney, a party to the suit is entitled to have the pleading signed through another if that another person had been duly authorised. This view is taken in the following decisions also:

  • Bilasraika Sponge Iron Pvt. v.  Devi Trading Company: 2011-5 ALD 327; 2011-4 ALT 297  – (Agent under Special power of Attorney did not seek leave of the Court under the Civil Rules of Practice)
  • Nethra Chits (P) Ltd., v. B. Ramachandra Reddy, 2006 (4) ALT 190, (Foreman of the Company did not obtain permission of the Court.)
  • M/s. Gold Medal v. Smt. Ameena Begum 2004-5 ALT 542 (Suit instituted on a defective power of attorney; and corrected subsequently)
  • Kamal Silk Mills v. Kuncham Mohana Rao: 2002 (1) ALD 722 (DB), (Contentions under Rule 32 cannot be raised at the stage of execution)
  • Abu Taher v. Abdul Majeed: 1995 (1) ALT 57 (Did not obtain prior permission of the Court under the Civil Rules of Practice for filing the petition as the GPA holder.)

Signing of Plaint is only a Procedural Matter

In P.J. Joseph v. Suhara Beevi Hussain: AIR 2000 Ker 60, there was a power of attorney in favour of the husband of the plaintiff.  Husband filed suit on that basis. The defendant contended that the husband was not specifically authorized by the power of attorney to institute the suit. The plaintiff applied to the trial Court for permission to sign the plaint.  The High Court observed that even if there was any defect, the plaintiff could sign the plaint, as signing of the plaint was only a procedural matter. (Sections 99 and 99A of the CPC referred to)

Non-mentioning of Survey Number

Madhya Pradesh High Court  in Rajesh Parmar v. Under Secretary, Petroleum Corporation, MANU/MP/0121/2019, found that non-mentioning of survey number is not a ground to reject the application of Petrol Pump. It is stated as under:

  • “… However, inadvertence or clerical error occurred in the description of land in the application could not have been stretched too far to conclude that the land offered is at variance with the survey number mentioned in the application to declare the applicant not eligible for allotment of petrol pump. ….”

Mistake arose from Plaint – Court can Correct Decree under S. 152

In Easwari Amma Prsannakumari v. Radhakrishna Pillai, 2015 (5) KerHC 922, it was found that even where the mistakes in the decree occurred on account of the mistaken description of the suit property in the plaint (a survey number was omitted and length og the way was mistaken), the power under Section 152 of the Code would be available to the court to correct the decree. It is held as under:

  • “Since what was intended by the Court by virtue of its decision in the suit could not be achieved on account of the mistake in the description of the suit property in the schedule to the decree, although the said mistake had occurred on account of the mistake in the description of the suit property in the schedule to the plaint, as held above, the said mistake is one liable to be corrected invoking the power of the Court under Section 152 of the Code, as otherwise, the decision of the Trial Court as confirmed by the Appellate Court and this Court would become meaningless.”

Mistake arose from Plaint – Court can Correct Decree under S. 152

Relying on Rajesh Parmar v. Under Secretary (supra)  it is held in Indian Oil Corporation Limited v.  Gosala Raju, AIR 2022 AP (NOC) 260, as under:

  • “10. In any view of the matter, as per the settled law, when there is a mistake in survey number, extent and boundaries will prevail.”

In Vishnu Anant Dessai v. Govind Vithal Sawant, 2020-5 All MR 496 (Bom), it is found as under:

  • “… On this score, the common law principles compel us to conclude that the boundaries prevail over extent  and even survey numbers.”

The same principle can be seen in Ramaiya Asari v. Ramakrishna Naicker, 2000 (3) MLJ 327.   

In Kannu Reddiar v. T. Palanirajan, 1995 (2) LW 769, it is emphasised as under:

  • “It is well established general principles of law that the boundary descriptions shall prevail over survey number, extent, etc., where there is conflict.”

In PKAB Coop. Society v. Govt. of Palestine, AIR 1948 PC 207,laid down as under:

  • “In construing a grant of land a description by fixed boundaries is to be preferred to a conflicting description by area. The statement as to area is to be rejected as falsa demonstratio.” (Quoted in: K. P. Parameswaran Pillai v. Parvathy Amma Gourikutty Amma, 1985  KerLJ 54).

In Ibrahim Koyakutty v. Varghese, 1951 KLT 117, it is observed as under:

  • “3. … .. But in the absence of circumstances indicating that application of the boundaries in determining the extent of the land that passed under the conveyance will lead to an error, usually in cases conflict between the area, survey number and the boundaries mentioned in the document the boundaries predominate and the rest is considered only as false or erroneous description. In this case there are no such circumstances and therefore we are clearly of the view that the disputed property is included in the documents mentioned above. … ……..” (quoted in: Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959.)

Section 152 can be invoked to cure the defect because of the incorrect plaint

In Subramania Iyer v. Joseph George, AIR 1959 Ker 386, the particular question considered was whether Section 152 can be invoked to cure the defect in the decree which was prepared based on the incorrect plaint. The court said as under:

  • “Thus when there is an error in the description of mortgaged property owing to the accidental use of the word ‘west’ for ‘east’ (Rahulghani v. Uma Shenkar, AIR 1944 Oudh 5) or the insertion of wrong survey number (Satyanarayana v. Purnayya, AIR 1931 Mad. 260) and the error is repeated in the plaint and the decree, the court has been held to have ample powers to rectify the error. As Pandalai, J. observed in the Madras case just cited:
  • “There is nothing which limits the power of the court under S.152 to correcting errors, mistakes and omissions, which arise in the suit. Nothing prevents the court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the plaint. A suit for rectification of the instrument and decree is not the only remedy; an application for review may be appropriate, but that is no obstacle under S. 152 to an application.”
  • It is no doubt true that this case came in for dissent in the later case of Ramakrishnan v. Radhakrishnan, AIR 1948 Mad. 13, but the application there was made to correct the mortgage deed along with the judgment, preliminary decree and final decree passed upon it. And Gentle, C. J. delivering the judgment of the Court said:
    • “I am unable to see how S. 152 gives to a court jurisdiction and authority to modify documents, particularly documents upon which a suit is instituted. There is a remedy by way of suit and I find nothing in the provision of S. 152 which confers upon it similar powers as are conferred by S. 31, Specific Relief Act. In my view, S. 152 is for the purpose of correcting errors directly involved in the proceedings themselves and not for correcting errors which are anterior to the proceedings, particularly in documents upon which proceedings are brought.”
  • And the learned judges preferred to follow Mand Khan v. Govind Behari AIR 1934 All. 100.
  • In the later case before the Madras High Court Krishna Poduval v. Lekshmi Nathiar, AIR 1950 Mad. 751, the prayer was for amendment of the survey number of an item of property in the plaint schedule and the decree schedule when there was no dispute as regards the identity of the property or boundaries to it and the amendment was allowed under S.152. Discussing the matter the learned judge held:
    • “I do not think therefore that the amendment asked for goes to the root of the claim or an amendment is sought for in respect of any matter which has been a subject of controversy between the parties to the suit. It is only an amendment for correction of certain errors that have crept into the decree and in the plaint schedule which errors happen to be also in Ext. B-1 (Original document). The fact that Ext. B-1 also has the same errors as in the plaint schedule and in the schedule to the decree cannot disentitle the plaintiff’s to have the errors set right if they arc entitled to it under the provisions of the Code.” (Paragraph 5, page 752)
  • The learned judge distinguished AIR 1948 Madras 13 above referred to on the ground that the application there sought to amend the schedule to the document and following Katamaraju v. Paripurnanadam, AIR 1949 Mad. 282 which had favoured amendment in like circumstances.
  • I therefore hold that the court under S. 152 has undoubted jurisdiction to entertain the application filed by the plaintiff assuming of course he can sustain it on the facts.”

In Vallabhaneni Vimalamba v. Ghanta Ratnamma, AIR 1966 AP 26; 1965-1 AndhWR 266, also the the question considered was whether Section 152 can be invoked to cure the defect in the decree which was prepared based on the incorrect plaint. The court said as under:

  • “It is now well settled that the power under Section 152 C. P. C. is not confined only to correct the mistakes in the drafting of the decree. It has been held to apply even to correct the mistakes or errors committed in the plaint, and even in a document on the foot of which the suit was filed. If authority is needed, reference may be made to T. V. Ranga Rao Naidu v. Balaksonlal Janaki Prasad, AIR 1941 Mad 940 and Satyanarayana Rao v. Purnayya, AIR 1931 Mad 260. The view held by the Allahabad and other High Courts that Section 152 does not deal with mistake of parties has not been subscribed for by the Madras High Court and this Court.
  • In Venkayya v. Satyanarayana, AIR 1959 Andh Pra 360 at p. 364 a Bench of this Court had ruled that a mistake committed by the plaintiffs in entering the acreage or the survey numbers due to inadvertence could be corrected under Section 152. The learned Judges held that as a mistake in that behalf crept into the plaint schedule, the same mistake necessarily entered into the judgment and decree, and that it is an accidental slip and a clerical mistake capable of being rectified under Section 152, and there is nothing which limits the power of the Court under Section 152 to correct such errors and mistakes which arise in the suit.”

Section 152 CPC: Court has Wider Powers

The Madras High Court, in C.K. Philips v. T.A. Shanmugam, (2003)2 MLJ 722, allowing a petition under Section 152 CPC held as under:

  • “The finding of the Court below that Section 152 C.P.C. cannot be invoked to correct the survey number of the property and that Section 152 can be invoked only to correct clerical errors or arithmetical errors in the judgments and decrees, in my opinion, is erroneous. Likewise the other reasoning given by the Court below that any kind of correction can be carried out only before the decree is passed is also not correct”.

Clerical or Arithmetical Errors in the plaint and Final Decrees can be Rectified

In Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR 1974 AP 201, it is laid down as under:

  • “Where clerical or arithmetical mistakes occur in copying the plaint schedules from the documents anterior to the suit the proceedings in the suit can always be corrected under Section 152, CPC. In such cases even the documents on the basis of which the suit was filed may be amended either in a suit under Section 31 of the Specific Relief Act or in a proper case even by an application under Section 152 CPC provided it in a case of misdescription and not one of disputed identity. In such cases if Section 152 is invoked it would obviate a suit which have ultimately bring the same result. In all cases where clerical or arithmetical errors creep-in in the plaint and as a consequence in the decrees as well, they can be rectified at any time even after a final decree. A case of such an amendment petition under Section 152 CPC filed in a pending suit even after a preliminary decree is passed therein is an a fortiori case.”

Execution Court can Proceed Without Correcting (the Accidental Slip in) the Decree

The Apex court in Pratibha Singh v. Shanti Devi Prasad, AIR 2003 SC 643: (2003)2 SCC 330, observed as under:

  • “When the suit as to immovable property has been decreed and the property is not definitely identified the defect in the Court record caused by overlooking of provisions contained in O.7, R.3 and O.20, R.3 of the C.P.C. is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to S.152 or S.47 of the C.P.C. depending on the facts and circumstances of each case which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under S.152 of the C.P.C. by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of S.47, C.P.C. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission.”

Following Pratibha Singh v. Shanti Devi Prasad (supra) it is held in Hindustan Petroleum Corporation Ltd.  v. Ajay Bhatia, AIR 2022 SC 4739, as under:  

  • “50.… The Court which passed the decree could supply the omission. Alternatively, exact description of the decretal property might be ascertained by the Executing Court, as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47.
  • 51. There could be no doubt that a decree should not to the extent practicable be allowed to be defeated. At the same time, a decree can only be executed in respect of the suit property if the suit property is easily identifiable. The extent of the suit property would have to be determined by the Executing Court, as a question relating to execution, discharge or satisfaction of the decree.”

In Themma v. Infant Jesus Church, 2016-5 KHC 407; 2016-4 KLT 388, following Pratibha Singh v. Shanti Devi Prasad (supra), it is held as under:

  • “14. All the parties agree that the western boundary of the property covered by the agreement for sale belongs to the defendant and is not a road as described in the plaint schedule. This mistake can be corrected during the finalisation of the draft sale deed by the court below after considering the objections to the report of the Advocate Commissioner. The power is abundant in the court below to execute a ‘proper conveyance’ as is discernible from Section 28(3) of the Act where under minor discrepancies if any can be very well be corrected.”

When an instrument may be Rectified

Section 26 of Sp. Relief Act reads as follows:

  • “26. When instrument may be rectified –
  • (1) When, through fraud or a mutual mistake of the parties a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956) applies) does not express their real intention, then-
  • either party or his representative-in- interest may institute a suit to have the instrument rectified; or
  • the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or
  • a defendant in any such suit, as is referred to in Cl.(b), may, in addition to any other defence open to him, ask for rectification of the instrument.
  • (2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the Court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the Court may in its discretion direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
  • (3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the Court thinks fit, may be specifically enforced.
  • (4) No relief for the rectification of an instrument shall be granted to any party under this section, unless it has been specifically claimed:
  • Provided that, where a party has not claimed any such relief in his pleading, the Court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim.”

Suit for Rectification of Deed – When Needed?

In Aliyar v. Raju V. Vayalat, 2016-1 KHC 763; 2016-2 KLT 656, it is found as under:

  • “Admittedly, in Ext. A1 there are mistakes in the extent, survey number, boundaries and the details of the anterior title deeds. In these situations, it is clear that institution of a suit merely for the injunction reliefs will not serve the purpose of the respondent/plaintiff. Likewise, a suit for declaration that the plaint schedule property is the property that is included in Ext. A1 will also not help the respondent to get an effective and executable decree. It is, therefore, very clear that the patent mistakes in Ext. A1 will have to be rectified, otherwise the actual features available on the ground will be totally different from the descriptions shown in the respondent’s title deed. That apart, a declaratory relief can only be claimed in respect of a specific immovable property capable of being identified correctly. Indisputably, the descriptions in the schedule to Ext.A1 and the recital in the document do not reflect the actual state of affairs. Therefore, the declaratory relief can be effectively granted only after rectifying the mistakes in Ext. A1. Viewing from this angle, we are of the view that the most important and primary relief claimable under such a situation is the rectification of Ext. A1.”

Small Mistake will not Disentitle Decree

In Mohammed Munvar v. N. C. Nesan, 21 Mar 2024, 2024: Supreme(Mad) 613, the eastern and western boundaries have been interchanged in the schedule to the plaint. But it did not create any confusion or lead to the wrong identification of the property. After quoting Order VII Rule 3 of C.P.C, observed as under:

  • “38. As such, if the suit is in respect of an immovable property, the plaint shall contain the description, sufficient to identify and if could be identified by boundaries or numbers and in such case, the plaintiff shall specify such boundaries or numbers. ….. The description given in the plaint schedule by the plaintiff, satisfies the provisions of Order VII Rule 3 of C.P.C., as the property is identifiable. Therefore, the arguments of the learned Senior Counsel for the appellant that the decree cannot be granted as proper description of the suit property is not given, cannot be sustained. Even though the eastern and western boundaries have been interchanged in the schedule to the plaint, it does not create any confusion or lead to wrong identification of the property. Further, the Advocate Commissioner’s reports filed and evidence of C.W. 2/Deputy Inspector of Surveyor have fortified the fact that ‘C’ schedule suit property belongs to the plaintiff and the defendant has trespassed and also he is in possession of the ‘C’ schedule suit property.”

In Satyanarayana v. Purnayya (1931 Mad 260) error in boundaries (‘west’ for ‘east’) occurred while copying an erroneous document to the plaint. It was held that in appropriate cases, such mistakes did not prevent the court from doing justice. It was held as under:

  • “There is nothing which limits the power of the Court under S. 152 to correcting errors, mistakes and omissions, which arise in the suit. Nothing prevents the Court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the Plaint. A Suit for rectification of the instrument and decree is not the only remedy; an Application for review may be appropriate, but that is no obstacle under Section 152 to an Application.”

In Chandran v. Amruthavally, 2016 (5) Ker HC 444, 2017 AIR (CC) 1405; 2016-4 KLT 753, there was a mistake in the survey number of the property recorded in the final decree in the partition suit. It was held that it was open to the court, in exercise of power under Section 152 of the CPC to correct such a mistake. Paragraph 10 of the said judgment reads as under:

  • “8. In Subramania Iyer v. Joseph George (1959 KLT 165) it was held that a decree could be corrected even in a case where the error or mistake occurred even anterior to the suit, namely in the instrument or the document based on which the suit has been filed, which has been carried forward into the plaint and repeated in the decree, by exercise of jurisdiction under Section 152 of the CPC. It was observed therein that, there is no reason to restrict the powers of the court under Section 152 of the CPC to errors made by the Courts alone. In the said decision the Court has taken note of the views expressed in
    • Satyanarayana v. Purnayya (1931 Mad 260,
    • Ramakrishnan v. Radhakrishnan (AIR 1948 Madras 13),
    • Katamaraju v. Paripurnannadam (AIR 1949 Mad. 282) and
    • Krishna Poduval v. Lekshmi Nathiar (AIR 1950 Madras 751).
  • This Court held that even the errors that occurred anterior to the decree and which were in existence even in the original document, which happened to be carried forward to the plaint and decree, could be corrected in the decree, by exercise of the powers under Section 152 of the CPC. The same view has been taken by this Court in
    • Abdhu v. Assainar (1993 [2] KLT 711)
  • wherein also this Court accepted the proposition that even the mistakes that had crept in anterior to the suit can be corrected by the court in the decree. That was a case where a mistake that had crept in the preliminary decree regarding the survey number of the property therein was corrected.
  • In Raman Nadar Velayudhan Nadar v. Janaki Karthi (2011-2 KLT 149)
  • this Court held that a decree can be corrected not only under Section 152 of the Code of Civil Procedure, but even the inherent powers under Section 151 of the CPC could be invoked in an appropriate case.”
  • 10. In the instant case, as pointed out earlier, there is no dispute between parties regarding the identity of the property sought to be partitioned. The respondents have no objection to the correction of the survey number of the property in the manner as sought for by the revision petitioner. If the correction is allowed that will not cause prejudice to any of the parties to the litigation. The only apprehension is whether as per the revenue records the property in the particular survey number sought to be incorporated namely Sy. No. 644/5, is shown to be in the possession of third parties, in which event, the rights of the said third parties would be affected by the inclusion of the said survey number in the present case. I make it clear that the right of third parties, if any, over the property described in the survey number sought to be incorporated, will not be affected by such inclusion. If there is any disputed right, the parties to the present suit will have to approach the appropriate Court or authorities, seeking necessary reliefs.”

In M. K. Soumini v. M. K. Sreedharen, 10 Jan 2017, 2017 Supreme(Ker) 173, it was found that the mistake occurred in the compromise petition, which led to the final decree could be corrected. It was pointed out that the documents produced before this Court showed that the correction of the mistakes in the final decree would not result in any change in the identity of the property.

In J. Sarojini Alias Nesamma v. Narayani Sarojini, 2008-1 ILR(Ker) 153; 2008-1 KHC 897; 2008-1 KLT 516, the plaint schedule property was delivered . They have no complaint that the delivered property is a different property. Plaintiffs’ only grievance is that the survey number of the property was mistakenly shown as 237/2 instead of 238/1-A. This mistake had happened in the plaint when it was typed. Mistake was noticed only after the delivery. It was held that nothing prevents the Court from doing justice in an appropriate case where such mistakes arise; and that a suit for rectification of the instrument and decree is not the only remedy, an application for review may also be appropriate, that also is not the only way and will not be an obstacle for exercise of jurisdiction under Section 152 of the C.P.C. The court held as under:

  • “In the facts and circumstances of the case I am of the view that if really there is a grievance that in the plaint a mistake has been crept there should be some remedy for the revision petitioners. One remedy available to the revision petitioners is that they can file a review petition to reopen the execution proceedings, so that the pendency of the suit will continue so long as the execution proceedings are pending. Then the revision petitioners can move the court which passed the decree to make the corretion. Alternatively the revision petitioners can also sue for rectification of he mistakes crept in the survey number of the plaint schedule property. These remedies are open to them and they are at liberty to avail the above said remedies to redress their grievance. In the circumstances no interference is possible in the impugned order.”

In this decision (J. Sarojini Alias Nesamma v. Narayani Sarojini) the High Court referred to an earlier decision, Subramanian Iyer v. Joseph George( 1959 K.L.T. 165), where the boundaries of the schedule property alone had been wrongly described and the schedule was otherwise correct in so far as it elated to survey number, extent, village etc. The question of correcting the plaint and the decree arose in the case for consideration. It was found that the language of Section 152 of the Code which enables the court to correct the clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

Court Orders – Technical Defects will not defeat Substantive Rights

The suits will not fail merely because of an incorrect survey number. The principle to be invoked will be –

  • Technical defects or clerical mistakes in the description will not defeat substantive rights.
  • If property identity is clear from the record, relief should not be denied on technical grounds. Minor errors do not invalidate proceedings if identity is clear.
  • Procedural law is meant to facilitate justice. Technicalities should not defeat substantive rights.
  • “Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.” (Krishna Iyer, J.: State of Punjab v. Shamlal Murari, (1976) 1 SCC 719.
  • The Courts should give preference to the cause of substantive justice over the procedural technicalities.
  • Adjective law dealing with procedure alone be interpreted in such a manner as to sub-serve and advance the cause of justice. (Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46).
  • Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774, said as under: “The mortality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence — processual, as much as substantive.”

See also:

  • Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425,
  • State of Punjab v. Shamlal Murari, (1976) 1 SCC 719,
  • Kailash v. Nanhku, (2005) 4 SCC 480.

No “Suppression”, if Facts are (i) Not Material and  (ii) “Known”

It is held in Avtar Singh v. Union of India, (2016) 8 SCC 471, that there will be no “suppression”, if the facts are (i) Not Material and  (ii) “Known” to the opposite side.  This decision is referred to in:

  • Union of India v. Shishu Pal, AIR 2024  SC 3652
  • Ravindra Kumar v. State of U. P., 2024 5 SCC 264
  • State of West Bengal v. Mitul Kumar Jana, 2023-14 SCC 719
  • Ex-Const/Dvr Mukesh Kumar Raigar v. Union Of India, AIR 2023 SC 482
  • Satish Chandra Yadav v. Union Of India, 2023-7 SCC 536
  • Pawan Kumar v. Union of India, 2022 AIR SC 2829; 2023-12 SCC 317
  • State of Madhya Pradesh v. Abhijit Singh Pawar, 2018-18 SCC 733.

Part II: Interpretation of Deeds

Vague and Uncertain Description Rejected & Definite and Certain Preferred

“Falsa Demonstratio Non Nocet”  (Adequate and sufficient description with convenient certainty of what was meant to pass, an erroneous addition to the description will not vitiate it) is referred to and applied in Umrao Bapu v. Ramakrishna Bapu, AIR1938 Nag. 93, and Durga Prased Singh v. Rajendra Narain Bagchi (1910) 37 Cal. 293, Savarimuthu Nadar Chellayan Nadar v. Kanakku Kali Pillai Padmanabha Pillai, 1957 KHC 184

In Sivaraman Nair v. Shamsuddin, 1990 (1) KerLT 187: 1990 KHC 295, it is found as under:

  • ‘9. In cases where there is a difference in the extent and the boundary covered by a document, one or the other which is clearer and more specific has to be preferred. In some cases it may be the boundary. In some other cases it may be the extent and in yet other cases it may be the side measurements. There is no invariable rule in this regard. None of the decisions on which the appellants rely has held positively that in all cases of such conflict the boundary alone shall prevail. On the other hand, in Krishnamurthy Iyer’s case (1957 KLT 886) Kumara Pillai, J. held that:
    • “The usual rule is that when there is a conflict between the area and the boundaries, the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. This is not an inflexible rule. When from the proved circumstances it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail.” (quoted in: Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959)

Varadaraja Iyengar, J. in Krishnan v. Mathai, 1957 KerLT 42, held as under:

  • “The evidence supplied by boundaries, extent, survey numbers and lekhoms form the determining factors when the identity of the property is put in issue. If all these factors harmonise, there is little difficulty to identify the property in dispute. But when some of them are in conflict with the rest as when the extent and survey numbers do not agree with the boundaries usually the boundaries predominate and the rest is regarded as erroneous or inaccurate descriptions. This is not an inflexible rule and the guiding principle is to apply that test which is most unlikely to be vitiated by error.” (quoted in: Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959)

In Velu v. Padmavathy Amma (UL Bhat, J.), ILR 1984-1 Ker 30; 1983 KLN Case Notes p.38 Case No. 39, it is stated as follows:

  • “A golden thread runs through all the decisions referred to above. A piece of land may be described in the document or decree correctly or wrongly. Description may be given by reference to village, locality, survey number, lekhom number, extent, measurements or boundaries. At times, descriptions may tally pointing unerringly to a particular plot of land in which case there will be no difficulty in locating the plot. Sometimes the various descriptions given in a document or decree may be in conflict with each other. In such a case, the court is called upon to adjudicate on the identity of the exact plot intended to be dealt with in the document or decree. No doubt, the court will at first try to reconcile the various descriptions. If that be not possible, one or more of the descriptions may have to be rejected and the other decision rested only on the other description or descriptions.
  • When one of the descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred. If none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identified the subject matter of the transaction, and the other descriptions must be rejected as erroneous or inaccurate.
  • This is not a rule of law and therefore is not inflexible in character it is a mere rule of construction which appears to be safe and almost an infallible guide.” (Quoted in: K. P. Parameswaran Pillai v. Parvathy Amma Gourikutty Amma, 1985  KerLJ 54; Chandrakumar v. Narayana Bahuleyan, ILR 2011-2 Ker 897; 2011-2 KHC 884; 2011-3 KLT 185)

The decisions referred to in Velu v. Padmavathy Amma are the following:

  • Zamindar of Pachipenta v. Maharajah of Jeypore, XXIII MLJ 97,
  • Subbayya Chakkiliyan v. Manjan Muthia Goundan, AIR 1924 Mad. 493,
  • Durga Prasad Singh v. Rajendra Narain Bagehi, ILR 37 Cal. 293,
  • Kumaran Krishnan v. Ulahanna Mathai, 1957 KLT 42,
  • Chacko Joseph v. Varghese Markose, 1957 KLT 485,
  • Savarimuthu Nadar v. Kanakku Kali Pillai, 1957 KLT 825 and
  • Krishnamurthi Iyer v. Janaki Amma, 1957 KLT 886.

In Savithri Ammal v. Padmavathi Amma, 1990-1 KLT 187, Bhat J. reaffirmed the proposition.

Kerala High Court, in Ouseph Poulose v. Kuttappan Chothi (K. Vinod Chandran, J., on 12 November, 2012) referring Savithri Ammal, observed as under:

  • “11. This Court has time and again considered the procedure by which properties which are covered by documents come up for identification and difficulties are caused due to the change in extent, boundaries, survey numbers and so on and so forth. Reference can be safely made to Krishnan v. Mathai (1957 KLT 42), wherein the dispute on identity of the property relying on a mistake in survey number shown in the decree was negatived and Krishnamurthy Iyer v. Janaki Amma (1957 KLT 886) where it was held that the usual rule of predominance given to boundaries in the effect of conflict between boundaries and area was “not an inflexible rule”.

See also –

  • Zamindar of Pachipenta v. Maharaja of Jeypore (XXIII MLJ. 97),
  • Subbayya Chakkiliyan v. Manjan Muthia Goundan (AIR 1924 Mad.493),
  • Durga Prasad Singh v. Rajendra Narain Bageni (ILT 37 Cal.293),
  • Savarimuthu Nadar v. Kanakku Kali Pillai (1951 KLT 825),
  • Kumaran Krishnan v. Ulahannan Mathai 1957 KerLT 42, 485,
  • Sheodhyan Singh v. Sanichara Kuer, AIR 1963 SC 1879,
  • KP Parameswaran Pillai v. Parvathy Amma, 1985  KerLJ 54,
  • Savithri Ammal v. Padmavathy, 1990 KHC 295,
  • Kamakshi Ammal v. R. Ranganathan, 82 LW 142.

Wrong description in Will. Legal heirs can execute a Rectification Deed

In Baburaj PK v. State of Kerala, 2019 (2) KHC 628, it was held that there was no impediment under the law to execute a rectification deed by the legal heirs, to rectify a wrong description in a registered Will, if there was unanimity among them as to the intention of the testator.

No  Stamp Duty for Rectification Deed

In P. Sasikumar v. State of Kerala, 2024-4 KLT 864, it is held that a rectification deed, which merely corrects descriptions without altering rights, does not attract stamp duty as a conveyance under the Kerala Stamp Act. It is pointed out as under:

  • “10. A Single Bench of this Court in Jihas P.A. (Jihas P.A. v. District Registrar and another, 2012 (3) KHC 146) held that when a mistake in a deed is sought to be corrected by executing a rectification deed, stamp duty is not payable. In Rajesh Kumar K.T. (Rajesh Kumar K.T. v. State of Kerala, 2024 (3) KHC 425), another Single Bench of this Court held that the rectification deed executed to correct a mistake in respect of the re-survey number of property, wherein the boundary, extent and old survey number remain unchanged cannot be treated as a fresh sale deed for the purpose of levying registration fee and stamp duty payable. Same view was taken in Vannathi Valappil Mahmood (Vannathi Valappil Mahmood v. State of Kerala and Others, 2019 (2) KHC 736).”

Error will not necessarily invalidate a document – Not Applied

The principle that ‘an error will not necessarily invalidate a document’ is found not applicable in the facts of Kamalamma v. Shibu, 2024-3 KerHC 547. The High Court observed as under:

  • “21. It is true that generally when there is a conflict between area and boundary, the boundary will prevail. However, as held in the decision in Savithri Ammal (supra) and Chandrakumar (supra), the above rule is not an inflexible one. In the present case, the properties of the defendants could be clearly identified using the boundaries given in Exts.A2 and A3, while it could not be identified using the area given in the document. In the above circumstances, it is to be held that in the present case, the principle that “when there is conflict between area and boundary, boundary will prevail” squarely applies.
  • 22. Relying upon the decision in Savarimuthu Nadar Chellayan Nadar v. Kanakku Kali Pillai Padmanabha Pillai, 1957 KHC 184, the RSA 710 of 2014, learned counsel for the plaintiffs would argue that the maxim “falsa demonstratio non nocet” is to be applied in this case, in support of his argument that if there be an adequate and sufficient description with convenient certainty of what was meant to pass, an erroneous addition to the description will not vitiate it. It is true that an error will not necessarily invalidate a document if it can be determined from the other facts in it. However, in this case the above maxim does not in any way help the plaintiff as the defects in his case are so fatal that it could not be set right by any other means.”

Execution of ‘Rectification Deed’

In Rajesh Kumar KT  v. State of Kerala, 2024-3 KHC 425, it is held that a ‘rectification deed’ is enough if the wrong description is only in ‘Re-Suvey Number’. It reads as under:

  • “On the basis of the same, the petitioner would submit that the boundaries, extent and original survey numbers remain the same but the only anomaly is regarding the resurvey number in the description of the property and that is what is sought to be corrected by way of Ext.P2 rectification deed.”

The Court relied on the following decisions:

  • Vannathi Valatpil Mahmood v. State of Kerala, 2019 (2) KHC 736 (change in the description of the property)
  • Jihas v. District Registrar, 2012 (3) KLT 194 (mistake in mentioning flat number in the sale deed).

Intention of the Parties

In Krishnamoorthi Iyer v. Janaki Amma, 1957 KHC 202 : 1957 KLT 886, it is said as under:

  • “2. ….. .. The usual rule, no doubt, is that when there is a conflict between the area and the boundaries mentioned in a document the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. But, this is not an inflexible or infallible rule, and even in the cases in which this rule has been applied, it has been pointed out that when, from the proved circumstances it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail. .. .. …” (quoted in: Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959)

In The Church of South India Trust Association v. Raja Ambrose, 1978- 2 MLJ 620, it is observed as under.  

  • “6. The principle of construction grants made under instruments in writing seems to be now well-settled not only in this country, but in many other systems as well. The principle accords with common sense and might be stated, broadly, thus: The subject-matter of the grant would depend on the intention of the parties as expressed in the relative conveyance deed.”

Intention of the Court in Court sale

In Pradeep Kumar v. State Bank of Travancore,1999 1 CivCC 429; 1998 2 KLJ 862; 1998 2 KLT 927, the Kerala High Court held that the Intention of the court is the guiding factor, if a mistake in the description of property in a court sale. It referred to the following decisions:

  • Sobla and Anr. v. Jethmal – AIR 1961 Rajasthan 191. It is observed as under:
  • “It is a mistake made in giving the boundaries in the execution application which was repeated in the warrant of attachment, the sale proclamation and the sale certificate. I see no reason why this mistake cannot be corrected on an application under S.151 C.P.C. It is in the ends of justice that this injury should be remedied and needless expense and inconvenience to parties avoided.”
  • Aziz Ullah Khan v. Court of Wards – AIR 1932 Allahabad 587. The Court observed as follows:
  • “….the power of the Court to make corrections necessary for the ends of justice is not confined only to powers exercisable under S.152. Extensive powers may be exercised also under Ss.151 and 153. We consider that this is eminently a case in which the accidental slip should be corrected as the contention is necessary for the ends of justice”.
  •  Dwaraka Parshad v. Rang Behari Lai – AIR 1934 Lah 29. The Lahore High Court held as follows:
  • “It is clear that the sale certificate must be based on the sale proclamation and this is the basis of discovering what has been sold. Assuming that the identity of the property was not iii doubt the question still remains whether the misdescription of the items of property in the ‘sale proclamation did not materially affect the price realised and whether in the circumstances it is fair to set aside the sale leaving the decree holder to pursue his remedies under the amended decree, or whether the mis description made any material difference and therefore, the sale proclamation should also be amended. As it is a mere case of misdescription I think the sale proclamation can be amended in the sense that it is competent for the Court so to do. But the question whether the misdescription affected the sale price or not is question of fact and there has been no decision on this material point. The onus of the issue will there fore be on the parties and the Court when coming toils decision will bear in mind the above remarks. If the Court comes to the conclusion that the misdescription made no material difference in the sale price, it will amend the sale proclamation and the sale certificate as directed by the decree holder”.

Boundaries Preferred Over Survey Number, Extent

Our Apex Court, in Subhaga v. Shoba, 2006-5 SCC 466, observed as under:

  • “That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail.”

The Church of South India Trust Association v. Raja Ambrose, (1978) 2 MLJ 620, it is further laid down as under:

  • “Where the deed sets out the extent and measurements correctly, there can be no difficulty in determining the subject-matter of the grant. But where no measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation, one has to look to other indications in the deed in order to fix the identity of the property which is the subject of the grant. If the deed in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will conclude not only the exact positioning of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail over the measurements given in the deed, if these are given as approximations.”

 In T. Venkata Vijaya Lakshmi v. Kodali Rayana Rao, 2023-4 ALT 272; 2023-3 CivCC 746, it is held as under:

  • “It is settled law that boundaries prevail over extent and survey number as also measurements.”

Conclusion

The following can be epitomised from the above discussion:

  • Clerical mistakes in the plaint or written statements will not be fatal, because such mistakes in the decree, arising from the erroneous plaint, can also be corrected invoking Section 152 CPC, in the interest of justice.
  • Mutual mistakes and clerical mistakes in deeds are to be dealt with distinctly from unilateral and wilful mistakes.
  • Patent mistakes in a deed will have to be rectified by a correction deed or by a court decree.
  • Even a wrong description in a registered Will can be remedied by executing a rectification deed by the legal heirs.
  • Dispute on identity of the property, relying on a mistake in survey number, cannot be validly raised.
  • Usually, boundaries would be accepted in preference to other descriptions; but, it is not an inflexible rule.
  • Court will at first try to reconcile the various (divergent) descriptions; if not possible, descriptions that are definite and certain (or clearer and more specific) have to be preferred; and the rest are rejected as erroneous or inaccurate.
  • The intention of the executant (or parties) is paramount.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

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Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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