MAHADEVA AIYAR Vs. GOPALA AIYAR

JUDGEMENT

(1.) It is to be regretted that the respondent is not represented in this appeal.

(2.) It is found that the survey numbers in the two mortgage deeds executed by the first defendant to the plaintiff 49D and 194-0 were by mutual mistake inserted instead of 49-A and 194-W, respectively. The second defendant was a subsequent mortgagee. His evidence, as we understand the case, was that he knew of this mistake and that it was on the strength of this mistake that ha advanced money on second mortgage. The Judge; finds that the second defendant made the advance without notice of the error in the mortgage to the plaintiff, "though", he says "he was aware of it". We cannot follow this finding. If the second defendant made the advance with knowledge of the mistake,. we do not see how it can be said that he did so without notice or that be acquired rights in good faith ( Section 31 of the Specific Relief Act). The plaint does not contain a prayer for rectification, of the first defendant's mortgage, but it alleges a mutual mistake-of fact, and the omission of a prayer for rectification is, at most a matter of form. Extrinsic evidence is admissible to show the mistake (Karuppa Goundan alias Thoppala Goundan V/s. Periathambi Goundan (1907) I.L.R. 30 Mad. 397) In our opinion the plaintiff is entitled to relief against the second defendant in respect of Survey Nos. 49-A and 194-W, and the decree must be modified accordingly.

(3.) The second defendant must pay the costs of this appeal.