BRIJENDRA NATH PANDEY Vs. MAJOR UPENDRA NATH PANDEY

JUDGEMENT

(1.) THE present first appeal has been filed agaisnt the order of Civil Judge (Senior Division), Lucknow dated 28-2-2009 passed in case No. 1015 of 2008.

(2.) THE brief facts giving rise to the present case are that the appellants have been allotted plot No. C-1/625 area 200 sq. mtr in Sector "J", Janki Puram Scheme, Lucknow by Lucknow Development Authority in the year 1973. Subsequently, a sale deed was executed on 8-10-2004 in their favour. Thereafter, on 2-11-2007 sale deed was executed by the appellants in favour of the respondent Nos. 1 and 2, Major Upendra Nath Pandey and Smt. Deepti Pandey in respect of the said property. The sale deed was registered. The aforesaid suit has been filed by the appellants for the rectification of the sale deed dated 2-11-2007 under Section 26 of the The Specific Relief Act, 1963 (hereinafter referred to as the "Act"). The rectification has been sought on the ground that the appellants are parents of the respondent No. l and the respondent No. 2 is the daughter-in-law of the appellants. The intention of the appellants was to gift the aforesaid land to the respondent Nos. 1 and 2 so that they may obtain loan from their departments and raise the construction over it. For the aforesaid purpose they approached one Sri Dharmendra Dixit, junior of Sri Asit Kumar Chaturvedi, Advocate, who drafted the instrument and the day on which it was to be executed and registered there was heavy rush in the office, they could not read the instrument and on the instructions of the Advocate, the appellants as well as the respondents put their signatures on instrument. Later on the copy of the instrument has been received for the purpose of taking the loan, the mistake has been detected and thereafter, the suit has been filed for rectification. The prayer in the suit was that the sale instrument dated 2-11-2007 be treated as gift instrument and not as sale deed. It was submitted that there was a mutual mistake of the parties in executing the such instrument and it does not express the real intention, inasmuch as the real intention was to execute the gift deed and not the sale deed. The court below had not accepted the plea of the appellants and has dismissed the suit by the impugned order. Learned Civil Judge (Senior Division) held that it is not the case of mutual mistake of the parties but by means of present suit the parties want to change the nature of the instrument itself from sale deed to gift deed. It was further held that on top of the instrument itself sale deed is clearly mentioned and all the clauses relates to the sale of the property in dispute on a consideration of Rs. 14.75 lacs and there is no evidence on record to show that the sale deed was executed on account of mutual mistake of the parties and it does not express the real intention of the parties.

(3.) LEARNED counsel for the appellants submitted that due to mutual mistake of the parties instead of executing the gift deed instrument, the sale deed was executed. He submitted that the mistake in fact has been committed by the counsel, who had drafted the instrument and the parties without going through the instrument have put their signatures on such instrument. He submitted that the respondent Nos. l and 2 are son and daughter-in-law of the appellants and the real intention was to give the land by way of gift without any consideration so that the respondents may take the loan from their departments to raise the construction over it. While by mistake in place of gift deed, sale deed has been executed. He submitted that such mistake falls within the purview of Section 26 of the Act. Therefore, the Civil Judge (Senior division) ought to have allowed the suit and rectified the instrument as prayed for. In support of the contention he relied upon the decisions of Madras High Court in the case of Natarajan Asari v. Pichamuthu Asari, reported in AIR 1972 Madras 192 and the judgment of Madhya Pradesh High Court in the case of Rikhiram Pyarelal and another v. Ghasiram Dukalu, reported in AIR 1978 Madhya Pradesh 189.