RECTIFICATION OF PROPERTY DOCUMENT
Documents of immovable property should depict the correct title of the present owner and should be free from mistakes if the owner of the property is to have peaceful possession and enjoyment of such property. However, in spite of great precaution, many of the documents do contain mistakes. Mistakes noticed in a document after registration can be corrected only by execution of a rectification deed and not by tampering with the original documents. However, the mistakes noticed in a documents before registration can be corrected under the signature of the concerned person.
Types of mistakes
It is difficult to specify the exact type of mistakes which a document may contain. There is no uniformity in the types of mistakes in a property document. Some documents may contain mistakes relating to boundaries of the property, measurement of the plot while some other documents may contain mistakes relating to the location, survey numbers, municipal numbers, description and number of floors, names of parties, consideration amount, absence of easementary rights clause etc. In one of the cases, it is noticed after the purchase of the property that the measurement of the site has been wrongly spelt in the sale deed showing East to West 40’ and North to South as 30’ instead of East to West 30’ and North to South 40’ and thereby the sale deed became defective and the purchaser was handicapped to deal with the property as he liked without a rectification deed rectifying the mistake in the measurement. This type of mistakes could be termed as mistakes due to negligence. Before registration, if the parties had compared the measurement and the boundaries of the property the need for execution of rectification deed would not have arisen. This type of mistakes are very common and do occur due to non-verification and comparison of the sale deeds with the records of the revenue authorities or due to ignorance or laxity on the part of the parties to the transaction or the middlemen involved therein. But, whatever be the reason, the mistakes in the sale deeds do require rectification if the purchaser has to enjoy his property without litigation or disturbance and to have a clear marketable title.
Rectification deed
Such mistakes, errors in the deeds require to be corrected by execution of a supplementary document called “rectification deed”. Rectification deed is a document executed between parties for effecting corrections of the mistakes of facts / typographical errors which are committed in the original/principal deed. Rectification of deeds is supported by the various canons of law and is an equitable relief usually granted by Courts of Equity and is based on doctrine of mistake of fact. Once a rectification deed is executed, it shall have to be read as part of the original sale deed and copies of the extracts of the revenue records indicating the fact of execution of rectification deed are to be obtained and preserved along with the sale deed and the rectification deed.
Pre-requisites
In order to execute a deed of rectification, there must be bona fide mistake whereby the original deed does not reflect the true intention of parties to the said deed. More importantly the mistake should pertain to the facts and not for application or interpretation of law. However, there is an exception to this rule. The mistake of foreign law is considered as mistake of fact. Section 21 of Indian Contract Act is relevant in regard to this.
When the parties to deed agree to modify, add or delete any terms referred to in any original deed executed by them on a prior date, to bring out their true intentions, it is necessary to reduce such correction into a duly executed document and to pay the requisite stamp duty in order to get the same registered with the concerned authority.
Section 26 of the Specific Relief Act reads as under:
26. When instrument may be rectified – (1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not express their real intentions, then –
(a) either party or his representative-in-interest may institute a suit to have the instrument rectified; or
(b) 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
(c) a defendant in any such suit as is referred to in clause (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.
Stamp duty and Registration
If the original deed is a registered document, the corresponding rectification deed also requires to be registered. Stamp duty and registration charges payable for registration of rectification deeds are at the rates as are prescribed by different States.
If rectification deed is executed to rectify mistakes of a general nature, boundaries, spellings, etc, in Karnataka, the stamp duty and registration charges are Rupees One Hundred each and if the rectification deed is executed for rectification of mistake concerning the area or the extent of the property, or change in the names of the purchaser, the stamp duty and registration charges payable would be at the rate prescribed for conveyance deed.
Documents of immovable property should depict the correct title of the present owner and should be free from mistakes if the owner of the property is to have peaceful possession and enjoyment of such property. However, in spite of great precaution, many of the documents do contain mistakes. Mistakes noticed in a document after registration can be corrected only by execution of a rectification deed and not by tampering with the original documents. However, the mistakes noticed in a documents before registration can be corrected under the signature of the concerned person.
Types of mistakes
It is difficult to specify the exact type of mistakes which a document may contain. There is no uniformity in the types of mistakes in a property document. Some documents may contain mistakes relating to boundaries of the property, measurement of the plot while some other documents may contain mistakes relating to the location, survey numbers, municipal numbers, description and number of floors, names of parties, consideration amount, absence of easementary rights clause etc. In one of the cases, it is noticed after the purchase of the property that the measurement of the site has been wrongly spelt in the sale deed showing East to West 40’ and North to South as 30’ instead of East to West 30’ and North to South 40’ and thereby the sale deed became defective and the purchaser was handicapped to deal with the property as he liked without a rectification deed rectifying the mistake in the measurement. This type of mistakes could be termed as mistakes due to negligence. Before registration, if the parties had compared the measurement and the boundaries of the property the need for execution of rectification deed would not have arisen. This type of mistakes are very common and do occur due to non-verification and comparison of the sale deeds with the records of the revenue authorities or due to ignorance or laxity on the part of the parties to the transaction or the middlemen involved therein. But, whatever be the reason, the mistakes in the sale deeds do require rectification if the purchaser has to enjoy his property without litigation or disturbance and to have a clear marketable title.
Rectification deed
Such mistakes, errors in the deeds require to be corrected by execution of a supplementary document called “rectification deed”. Rectification deed is a document executed between parties for effecting corrections of the mistakes of facts / typographical errors which are committed in the original/principal deed. Rectification of deeds is supported by the various canons of law and is an equitable relief usually granted by Courts of Equity and is based on doctrine of mistake of fact. Once a rectification deed is executed, it shall have to be read as part of the original sale deed and copies of the extracts of the revenue records indicating the fact of execution of rectification deed are to be obtained and preserved along with the sale deed and the rectification deed.
Pre-requisites
In order to execute a deed of rectification, there must be bona fide mistake whereby the original deed does not reflect the true intention of parties to the said deed. More importantly the mistake should pertain to the facts and not for application or interpretation of law. However, there is an exception to this rule. The mistake of foreign law is considered as mistake of fact. Section 21 of Indian Contract Act is relevant in regard to this.
When the parties to deed agree to modify, add or delete any terms referred to in any original deed executed by them on a prior date, to bring out their true intentions, it is necessary to reduce such correction into a duly executed document and to pay the requisite stamp duty in order to get the same registered with the concerned authority.
Section 26 of the Specific Relief Act reads as under:
26. When instrument may be rectified – (1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not express their real intentions, then –
(a) either party or his representative-in-interest may institute a suit to have the instrument rectified; or
(b) 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
(c) a defendant in any such suit as is referred to in clause (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.
Stamp duty and Registration
If the original deed is a registered document, the corresponding rectification deed also requires to be registered. Stamp duty and registration charges payable for registration of rectification deeds are at the rates as are prescribed by different States.
If rectification deed is executed to rectify mistakes of a general nature, boundaries, spellings, etc, in Karnataka, the stamp duty and registration charges are Rupees One Hundred each and if the rectification deed is executed for rectification of mistake concerning the area or the extent of the property, or change in the names of the purchaser, the stamp duty and registration charges payable would be at the rate prescribed for conveyance deed.
No comments:
Post a Comment