Thadani C. J.-This is a second appeal from the judgment & decree of the learned Addl. Subordinate j., A. V. D. dated 24-9-1948, by which he set aside the judgment & 'decree of the trial Ct. which had decreed the pltf.'s suit with no order as to costs. [2] The pltf. brought a suit for the rectifica­tion of a sale-deed dated 17-7-1935, executed in his favour by the deft, a widow of one Sonaram alias Someawar, purporting to convey the pro­perty in suit of the value of leas than Bs. 100, & for declaration of his title to & confirmation of possession of the rupit land & khas possession of the busti land. [3] The pltf.' a case was that during his life­time Sonaram, the husband of the deft. reap, had incurred a loan from the Kuhisrbaria Gaolia Bank, for which the applfc. had stood surety with the bank; soma time before 1935, Sonaram died leaving his widow, the reap & two minor daughters; in due course the bank demanded payment of the loan which then amounted to Rs. 100, & the deft.-resp. agreed to sell the land in suit to the plft. for Rs 100 in order to dicharge the loan; the sale-deed was not registered, but delivery of possession was made to him & in due course he had his name entered in the mutation register; the deft, how­ever; wag permitted to occupy the busti portion of the land in suit as a monthly tenant, the rupit land remained in his possession, 10 years later in 1945, one Bhaluka, a cousin of the resp. interfered with his possession by cutting & removing standing crops, whereupon in 1945 he brought a suit for ejectment & recovery of the suit land, but later withdrew it with permission to bring a fresh suit, he brought the present suit in 1946. [4] In this suit, in addition to the prayer for a declaration of his title & possession, the pltf. sought to rectify, the sale-deed of 1935. The prayer for rectification was based upon the allegation that the deft, was the sole heir of her deceased husband, Sonaram, & that she alone was, therefore, competent to execute the sale-deed in her own right, but that the writer of the sale-dead wrote out the deed by which the deft. sought to rectify, the sale-deed of 1935. The prayer for rectification was based upon the allegation that the deft, was the sole heir of her deceased husband, Sonaram, & that she alone was, therefore, competent to execute the sale-deed in her own right, but that the writer of the sale-dead wrote out the deed by which the deft. as guardian of her minor daughters purported to sell their interest only by mistake; on dis­covering the mistake the plft. served the deft, with a notice, & on the deft.'s failure to comply with his demand, the pltf. brought the present wit. [5] The defence to the suit was that there was no contract to sell the land as alleged by the pltf. that possession of the landa in suit was not made over to the pltf. that she was not a tenant of the pltf. in respect of the busti portion of the land. Other technical defences were taken by the deft, to which it is not neces­sary to refer. [6l On the pleadings, the trial Ct. framed the following issues: 1. Whether the suit is maintainable in its ipcesent form? 2. Whether there is any cause of action? 3. Whether the suit is barred by limitation? 4. Whether the suit is bad for multifarioua. ness? 5. Whether deft, contracted to sell the land & agreed to execute a deed of sale on her own bahalf as alleged in the plaint? 6. Whether the deft, made over possession of the suit land & entered into occupation of the basti land as pltf's tenant? 7. Whether the pltff. has been in occupation of the rupit partion of the suit land? 8. Whether the pltf. is entitled to have a sale deed executed ia place of the one filed in the suit? 9. Whether pltf. is entitled to declaration of title & confirmation of possession of the 'rupit' land & recovery of possession of the busti land? 10. Whether deft, is entitled to compensation under 8. 35 (A), C. P. 0 ; if so, how muoh? 11. What relief, if any, are the parties en. titled to? As a result of its findings, the trial Ct. decreed the pltfs. suit. [7] The lower appellate Gt. reversed the judgment & decree of the trial Ct. & bald that the pltf. was not entitled to a decree for the rectification of the sale-deed of 1935. 11. What relief, if any, are the parties en. titled to? As a result of its findings, the trial Ct. decreed the pltfs. suit. [7] The lower appellate Gt. reversed the judgment & decree of the trial Ct. & bald that the pltf. was not entitled to a decree for the rectification of the sale-deed of 1935. [8] It is not disputed by the applt'a advo­cate that the relief for the rectification of the instrument will be governed by the provisions of 9, 31, Specific Ralief Act, which is in these tarma: "81. When instrument may be rectified.-When through fraud or mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party or his representa­tive in interest, may institute a salt to have the ins­trument rectified; and if the Court finds it clearly proved that there has been fraud or mistake in fram­ing the instrument and ascertain the real intention of the parties in executing the same, the Gt. may in its discretion rectify 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." [9] At the hearing the learned advocate for the applt. stated that he did not rely upon any fraud, but only upon a mutual mistake of the parties, a mistake which did not truly express their intention. The mutual mistake alleged in the plaint ia that the writer made a mistake by asking the parties to have the docu­ment drawn up in such a way that it purpor­ted to be a sale of the minors' property by the deft, in her capacity as their guardian. [10] We do not think the alleged mistake amounts to a mutual mistake within the mean­ing of 8. 81, Specific Belief Act. The evidence of the scribe has not been brought on the paper-book, & we are not prepared to rely upon the evidence of the applt. alone on the question of the alleged mutual mistake. [11] It is contended on behalf of the applt. that as a limited owner of the estate of her deceased husband, the deft. resp. was compe­tent to convey only her own interest, & not the interest of her minor daughters. alone on the question of the alleged mutual mistake. [11] It is contended on behalf of the applt. that as a limited owner of the estate of her deceased husband, the deft. resp. was compe­tent to convey only her own interest, & not the interest of her minor daughters. That may be the legal position but we do not think that a transfer in excess of the legal rights of a transferor entitled a transferee to have the instrument of transfer rectified under s. 31, Specific Belief Act. The fact that in law the minors in this case did not have a present interest in the property, does not necessarily mean that the instrument did not truly express the intention of the patties. It may well be that the deft, in this case had relinquished her limit­ed ownership in the property in favour of her minor daughters & as there was a debt outstand­ing, she deliberately executed the sale deed intending to convey what she did in fact convey by the instrument. [12] Mr. Barua has relied upon illus. (B) of S. 81, Specific Relief Act. We do not think the illustration has any application to the facts of the present case. We are unable to hold on the material before us that the deft, intended to convey only her limited interest. The minors have not been made parties to the suit. Their rights will not, therefore, be affected by any judgment given in this case. Whether the aale. deed affects the reversionary rights of the minors is a question which must be decided if & when the minors challenge the transfer made by their mother. In this view, we think the lower appel­late Ct. was right in refusing to rectify the sale-deed. [13] The lower appellate Ct. has, however, lost sight of an important aspect of the case which is that so far as the busti portion of the land in suit is concerned, it was the pltf.'s case that the deft, was his monthly tenant. The trial Ct. held on issue 6 that the deft, was the tenant of the pltf. That finding has not been reversed ,by the lower appellate Ob. It is true that the deft, had stated in her written statement that she was not the tenant of the pltf. but she did not elect to go into the witness-box to support her written statement. held on issue 6 that the deft, was the tenant of the pltf. That finding has not been reversed ,by the lower appellate Ob. It is true that the deft, had stated in her written statement that she was not the tenant of the pltf. but she did not elect to go into the witness-box to support her written statement. We think the trial Gt. was justified in coming to the conclusion that the deft, was a tenant of the pltf. in regard to the busti portion of the land. As regards the rupit land, the pltf.'s case was that he was in possession of it all the time & he merely sought confirmation of its possession. Whether the trial Ct. was justified in decreeing confirmation of the pltf.'s possession of the rupit land in the absence of any evidence to the contrary, as against the deft, is not a matter which need be decided in this appeal, in view of the fact that by the judgment we leave the question of title an open question. [14] The position then is this: that in pursu­ance of the sale-deed, which we decline to rectify, the pltf. was in possession of the rupit land & by virtue of a contract of tenancy, the deft, came to be a monthly tenant of the pltf. in respect of the busti land. It is unnecessary to decide in this case whether in pursuance of the sale-deed, title to the property has passed to the pltf. The pltf. is clearly entitled to a decree for possession of the busti land in virtue of the rela­tionship of landlord & tenant created between the pltf. & the deft, after the deft, executed the sale-deed. [15] The resp.'s advocate has argued that the notice in this case was not served upon the deft, but the evidence led on this issue has not been made a part of the paper-book, & we have no material to enable us to say that the deft, was not served with a notice or that the notice was not proper. In any case, in view of the written] statement of the deft, denying the landlord's title, the deft, would not be entitled to a notice' to quit. [16] Accordingly, while affirming the judg­ment of the lower appellate Ct. refusing to rectify the instrument, we modify the judgment & decree of the lower appellate Ct. In any case, in view of the written] statement of the deft, denying the landlord's title, the deft, would not be entitled to a notice' to quit. [16] Accordingly, while affirming the judg­ment of the lower appellate Ct. refusing to rectify the instrument, we modify the judgment & decree of the lower appellate Ct. by decreeing the pltf.'s suit for possession of the busti land by evicting the deft. With this modification, the appeal is allowed, but as the applt. has only partially succeeded, we make no order as to coats. [17] Ram Labhaya J-I agree in the con­clusion reached by my Lord the Chief Justice, but I wish to add a few words to it. [18l Plaintiff sought for a rectification of the document on the ground of mutual mistake. He also prayed for khas possession of the property in suit which is the busti part of the land sold to him by the sale deed dated 17-7-1935. The sale deed purports to have been executed by deft, on behalf of her minor daughters. The sale became necessary for repayment of a debt which deft's. husband had incurred. It has been concur­rently found by the Cts. below that pltf. paid the debt & under the sale deed got possession of the rupit land. The busti land remained in posses­sion of the deft. So far as this part of the land is concerned, the finding of the trial Ct. not reversed in appeal, was that deft, occupied it as a tenant of the pltf. [19] The plea raised in defence was that the deft, never sold the property to the pltf. in any capacity, She claimed that she was entitled to remain in possession of the property in her OWE right. [20] Her plea baa been negatived & her learned counsel has not tried to resist the pltf's. claim on that ground. He has argued that deft, sold the reversion which vested in the daughters. She never intended & did not sell her rights, which vested in her at that time as a widow. This contention is entirely new. It is different from the position taken up in the written state­ment. Even this contention cannot hold water. The facts found are that the possession of the rupit land was given to the pltf. who has been in possession of it for about 10 years. This contention is entirely new. It is different from the position taken up in the written state­ment. Even this contention cannot hold water. The facts found are that the possession of the rupit land was given to the pltf. who has been in possession of it for about 10 years. So far as the busti land concerned, deft, was held to have occupied it merely as a tenant on pit's, behalf. If reversion alone was intended to be sold, no question of delivery of possession would have arisen. It is obvious from this circumstance that the land or the present rights in the land were intended to be sold. A mere spes successions or the right of reversion cannot be the subject matter of the sale either. There is absolutely no basis for this plea. Defendant now claims that the property in suit vested in her at the time of sale & not in the minor daughters. They had no right in the property at that time. The question, however, is whether she can resist the claim on that basis. [21] There is no doubt that deft, had to pay the debt due from her husband. She agreed to sell the property for the repayment of the debt. The debt was paid in consequence & pltf. was placed in possession of the property. It is clear that sale of the property was intended for the repayment of the loan. If there had been no misapprehension in the mind of the parties as to who could convey the property, the pltf. at any rate would not have agreed to a sale deed which purported to convey the property on behalf of the minors who had no interest in the property at that time. The defence that the document was obtained from the deft, by fraud has also been ruled out. Her claim that it was a sale of reversion alone is not entertainable. Plaintiff or anybody else on his behalf would not be interested in getting a document in a way that no title could be conveyed. Mutual mistake as to the legal position appears to be the basis on which the form that the document took could be explained. The intention was to convey the property & as alleged by the pltf. it seems probable that it was the ignorance of the petn. Mutual mistake as to the legal position appears to be the basis on which the form that the document took could be explained. The intention was to convey the property & as alleged by the pltf. it seems probable that it was the ignorance of the petn. writer that has created the difficulty which pltf. now stands confronted with. [22] In these circumstances the deft, could not be permitted to go back upon what she had deliberately done merely because she & the pltf. allowed the document to be executed as though the property vested in the minor daughters which was admittedly not the case. Even if therefore the case may not be regarded as fully covered by the language of s. 31, Specific Belief Act, so as to admit of rectification of the deed of sale, deft, cannot be allowed to resist the claim for possession of a part of the property sold, in regard to which the finding also is that she holds it as a tenant. [23] I, therefore, agree that the decree of the lower appellate Ct. be modified & pltf's suit for possession of the bustee land decreed. D.R.R. Decree modified.