KOTA CHINA MELLAYYA Vs. KANNEKANTI VEERIAH

JUDGEMENT

(1.) WE are of opinion that a mutual mistake made in describing a piece of land in a registered mortgage-deed can be proved by oral evidence (Section 92, proviso 1, of the Evidence Act) and that when such a mistake is so established, the deed can be construed by the Courts as if the mistake had been rectified, without the instrument having been actually ordered to be rectified in a suit brought for the purpose under Section 31 of the Specific Relief Act, subject to the condition that the rights of third persons acquired in good faith and for value should not be prejudiced thereby. See also Mahadeva Aiyar v. Gopala Aiyar 8 Ind. Cas. 390 : 34 M. 51 : 8 M.L.T. 289 : (1911) therefore, uphold the learned Subordinate Judge s decision in establishing the rights of the 3rd and 4th defendants as mortgagees of D. No. 196 seri land. But he should not have released the entire interest in the land, and we modify his decree by giving a declaration to plaintiff that he is entitled to attach and sell it subject to the mortgage in favour of defendants Nos. 3 and 4. WE shall make no order as to the costs of this appeal.