According to S. 26, when, on account of fraud or mutual mistake of the parties, a contract or some other instrument[2] in writing does not express the real intention of the parties, the Court is empowered to rectify the instrument to give effect to the real intention of the parties and then specifically enforce the rectified instrument[3].

However, the Articles of Association cannot be so rectified. It is an exception to the rule that any document, as stated by S. 26, can be rectified.[4]. E.g., a sale deed may be rectified when more land is included in the written document (e.g. 3.2 acres) instead of what the vendor intended to sell and the purchaser intended to buy (i.e. 3.1 acres).

II. Essentials of reconstruction of the instrument (S. 26):-

Following are the essentials.

1) That there must be a mutual mistake or fraud, and

2) That the instrument on that account did not truly express the parties’ intention.

III. Who may claim rectification (S. 26 (1))?

The suit for rectification of the instrument may be brought by:-

1) Any party to the instrument or their representatives:-

2) The Plaintiff:-

If, in any suit, the right arising under the instrument itself is in issue, the plaintiff may, in his pleading, claim the rectification of the instrument.

3) The Defendant:-

Again, if the right arising under the instrument is in issue, the defendant may ask for not only any defence open to him but also for the rectification of the instrument.

IV. Discretion of the court in granting rectification (S. 26 (2)):-

If the Court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the Court may, at its discretion, directly rectify the instrument to express the parties’ true intention[5]. Such rectification can be done without prejudice to the right of a third person. Thus, rectification cannot affect the rights accrued in favour of a bona fide purchaser for value without notice.

V. Enforcement of rectified instruments (S. 26 (3) and (4)):-

After rectification of an instrument, if the party claiming rectification has so prayed in his pleading and the Court thinks it fit, the rectified instrument may be specifically enforced. No relief for the rectification of an instrument shall be granted to any party unless it has been specifically claimed. However, where a party has not claimed any such relief in his pleading, the Court shall allow him to amend the pleading to that effect at any stage of the proceeding.

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[1] दस्तऐवजातील चूक सुधारणे /दुरुस्त करने [दस्तावेजों में सुधार]

[2] The “instrument” as defined in S. 2 (14) of the Indian Stamps Act (II of 1899) includes every document which purports to create, transfer, limit, limit, extend, extinguish or record any right or liability.

[3] जब पार्टियों की धोखाधड़ी या आपसी गलती के कारण कोई करार या लिखित में कोई अन्य साधन पार्टियों के वास्तविक इरादे को व्यक्त नहीं करता है, तो न्यायालय को उपकरण को सुधारने का अधिकार है ताकि पार्टियों के वास्तविक इरादे को प्रभावी किया जा सके, और फिर विशेष रूप से संशोधित साधन लागू करें|

[4] S. 26 (1). Also Held in Scott v. Frank F. Scott Ltd. (1940 Ch.)

[5] In Haji Abdul Rabman Allarakha v. Bombay & Persian Navigation Co., (ILR (1892) 16 Bom 561)

Facts- The plaintiffs required a ship “15 days after Haj” to sail from Jeddah to convey pilgrims back to Bombay and for that purpose they chartered a ship from the defendants, the date mentioned in the charter-party was “10th August, 1892” (fifteen days after Haj). The Defendants contracted with respect to the English date and the plaintiffs believed it that it corresponded with the “fifteen days after the Haj” whereas the defendants had no concern with it. When the plaintiffs came to know in March 1892 that the date corresponding with “fifteen days after Haj” was 19th July. 1892”, they brought a suit for the rectification of the charter-party.

Held- that the plaintiffs seeking rectification must show an actual concluded contract prior to instrument sought to be rectified and the contract was inaccurately represented in the instrument. Since the mistake was not mutual but it was on the part of the plaintiffs only, the rectification was disallowed by the Courts.